Note: You will find lots of scanning errors. But, the essence of the handbook is here.




Professor of Law New York Law School and ALISON REPPY Late Dean and Professor of Law New York Law School




Page 1 of 736



Professor of Law University of California, Los Ange]es Professor of Law Columbia University School of Law Dean and Professor of Law University of California, Berkeley



Professor of Law University of Chicago

Dean and Professor of Law Emory University Dean and Professor of Law Case Western Reserve University Professor of Law University of Michigan




Professor of Law University of Illinois Professor of Law Duke University

Professor of Law Harvard University

Professor of Law University of Michigan


Professor of Law University of Texas

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By JOSEPH H. KOFFLER Professor of Law New York Law School and ALISON REPPY Late Dean and Professor of Law New York Law School



COPYRIGHT © 1969 By WEST PUBLISHING CO. All rights reserved
KaiSer & Reppy Can.Law Pb9. HO 4th Reprint 1986


ISBN No. O’-3l4—2935l--x



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Almost half a century has elapsed since the publication of the third, and final, edition of Shipman‟s standard text on Common Law Pleading. The late Dean Alison Reppy, with whom I was associated in teaching tIx~ subject of Common Law Pleading, and who devoted much of his life to study in the field, commenced this work in an effort to meet the need for a new comprehensive work on the subject, but an untimely death cut his efforts short. I was at the time in a position to assume this undertaking, and have worked over the many succeeding years upon the preparation of this work. The responsibility for that appears in these pages is therefore mine.


It is my hope that this work will be of assistance to members of the bench, bar, and students of the law, in their professional and scholarly pursuits, I will briefly describe some of the principal features of this work, which are directed towards this end. First: Substantial new materials have been introduced into this work, in addition to the retention of the basic materials included in the Shipman text. This results in the presentation of a wider area of coverage in terms of topics dealt with than is generally found in previous works on Common Law Pleading. A reference to the detailed table of contents will indicate the topics covered with some particularity. Second: In discussions of many of the topics, more has been included in the way of historical background and development than generally appears in previous comprehensive works on Common Law Pleading. Third: Many of the topics have been more extensively treated than is generally the case in comprehensive works on Common Law Pleading. It has always been my view that significant emphasis should be placed upon materials dealing with the forms of action. Certainly most members of the bench, bar, and students of the law, carry with them the memory of Professor F. W. Maitland‟s incisive and perceptive observation that, “The forms of action we have buried, but they still rule us from their graves.” This fact has remained too clearly in focus to be blurred from vision by the Codes, and it is considered at some length in the pages of this work.

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The apportionment of additional space and emphasis is not limited to the forms of action, but is found in the treatment of many of the other topics throughout this work. This is done with a recognition of the validity of Justice Oliver Wendell Hohnes‟ statement that, “whenever we trace a leading doctrine of substantive law far enough back, we are very likely to find some forgotten circumstance of procedure at its source.” And to this we may add that whenever we deal with a modern procedural rule, we are likely to gain a better understanding of it, and a utility for its application, by virtue of a knowledge of Common Law Pleading. Fourth: The status under Modern Codes, Practice Acts and Rules of Court of most of the principal procedural devices, including all of the forms of action, is considered in the discussion of each of these topics. The viPREFACE tality and usefulness of a knowledge of Common Law Pleading may be readily appreciated when we find that its concepts are still present, and underlie the various aspects of Modern Pleading and Practice. Fifth: Extensive bibliographies of treatises and articles appear at substantially all of the points where the principal topics are discussed. Citations of treatises generally include edition and place and date of publication, so as to make the sources more readily available. Such extensive bibliographies have not been included in the earlier comprehensive works on Common Law Pleading, and it is hoped that this may have the effect of making research considerably less taxing, and substantially more productive. Sixth: For the English cases, in addition to citations in the original reports, parallel citations in the English Reports, a reprint series, are also generally included. Previous compreheusive works on Common Law Pleadings do not contain these citations, as indeed the English &eports were not yet published when most of them were written. Since law libraries frequently do not contain the original reports, but do contain the English Reports, research may be pursued with these citations without the use of conversion tables and digests, which might otherwise be necessary. This, too, should make research easier and more productive for members of the bench, bar, and students of the law.


The decisions, both English and American, have been extensively cited in order to convey an understanding of Common Law Pleading in its early, middle, and later stages, its development, and its effect in Modern Pleading and Practice. I can, of course, do no more than to record my indebtedness to the late Dean Alison Reppy, who commenced this work with such enthusiasm and dedication during his lifetime. I am also indebted to Shipman‟s work, and to the works of the many other outstanding authors who have contributed so much in the field of Common Law Pleading. Any attempt to recite all of their names at this point would result in the inevitable risk of omission, and I will therefore ask the reader to take notice of their respective contributions as he makes use of this work. I also wish to express my appreciation to my colleague, Professor John It. Dugan, for generously giving of his time to discuss with me certain of the topics included in this work. And for the secretarial services so faithfully performed by Mrs. Amy Smith in working upon the manuscript, I express my appreciation. I have attempted to set out some of the characteristics of this work in the succinct form required of prefatory remarks, and sincerely hope that this work will serve the purposes for which it is intended. JOSEPH H. KOFFLER

New York, New York October, 1069

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Common-Law Pleading and Practice—Still Survives as the The Development of the Common-Law Forms of Action



Basis of Modern Remedial Law



4. 5. 6. The Declaration—Form and General Requisites The Declaration—General Rules as to Alleging Place, Time, Title and Other Common Matters The Declaration—General Rules as to Manner of Pleading


102 130

PART THREE—OFFENSIVE PLEADINGS—THE COMMON-LAW ACTIONS 7. The Action of Trespass 151 8. The Action of Trespass on the Case 173 9. The Action of Trover 206 10. The Action of Ejectment 225 11. The Action of Detinue 244 12. The Action of Replevin 253 13. The Action of Debt 273 14. The Action of Covenant 303 15. The Action of Account 310 16. The Action of Special Assumpsit 318 17. The Action of Indebitatus Assumpsit 337 PART FOUR—DEFENSIVE PLEADINGS 18. Motions of Defendant After the Declaration and Before the Plea 368 Considerations Preliminary to the Classification of Defenses 378 The Demurrer 384 Pleas—Dilatory 410 Pleas—Peremptory or in Ear 433 TheReplication 513 The Production, Tender, and Joinder of Issue 532

19. 20. 21. 22. 23. 24.

Kaff It, & Rtp~ Cto~.taw PId~. RB




25. 26. 27.

Trial by Court or by Jury Aider and Amendment Retrospective Motions



553 565

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30. Appellate Review Table of Cases

28. 29.

The Judgment The Execution

584 589






1. 2. 3. 4. 5.

The Place of Common-Law Pleading in the Law The Importance of Common-Law Pleading The Functions of Pleading at Common Law The Development of Substantive Law out of Procedure Relation of Common-Law Pleading to Other Systems

Page S

10 13 17 19

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6. 7.

The Status of Common-Law Pleading Under the Codes Modern Procedure Under Codes, Practice Acts and Rules of Court—C Merely Another Step in the Evolutionary Development of the Com mon Law

24 27

10. 11. 12. 13.

8. 9.

Origin of the Common-Law Forms of Action Classification of the Common-Law Actions

32 46

The Ancient Real Actions First in Order of Development The Modern Real Actions The Modern Personal Actions The Effect of the Development of the Forms of Action

14. 15. 16. 17. 18. 19.

CHAPTER 3. THE COMMENCEMENT OF AN ACTION The Court 69 Jurisdiction of Courts 70 Process—The Original Writ 71 Service—Personal and Constructive 75 The Appearance 78 The Pleadings So CHAPTER 4. THE DECLARATION—FORM AND GENERAL REQUISITES Formal Parts of the Declaration The Actual Statement of the Cause oi Action Ultimate and Evidenti~ry Facts Ultimate Facts and Conclusions of Law Several Counts in the Same Declaration Joinder of Different Causes of Action
KoffItr & Reppy Can.Law Pida. HO XXI


20. 21. 22. 28. 24. 25.

82 86 90 92 94 96

TABLE OF CONTENTS Sec. 26. Different Versions of the Same Cause of Action 27. Conformance to Process

Page 98 100

28. 29. 30. Si. 32. 33. 34. 35. 36. 37. 38. S9. 40. 41.

CHAPTER 5. THE DECLARATION_GENERAL RULES AS TO ALLEGING PLACE, TIME, TITLE AND OTHER COMMON MATTERS Laying the Venue 102 Local and Transitory Actions 103 Local Facts—Venue in Pleadings Subsequent to the Declaration 107 Consequences of Mistake or Omission 107 Time 108 When Time Must be Truly Stated 108 When Time Need Not be Truly Stated 109 Time of Continuing Acts 110 Description of Property lii Names of Persons 113 Parties to the Action 114 Showing Title 115 Title in the Party or in One Whose Authority He Pleads 116 Alleging Derivation of Title—Estates in Fee Simple 118 Page 8 of 736

42. 43. 44.

46. 47. 48. 49. 50. 51. 52. 53. 54.

Alleging Derivation of Title—Particular Estates Title by Inheritance Title by Alienation or Conveyance Manner of Pleading Conveyance The Written Conveyance and the Statute of Frauds Where a Party Alleges Title in His Adversary What is a Sufficient Allegation of Liability Proof of Title as Alleged Estoppel of Adverse Party Showing as to Authority Profert of Deeds Writings Pleaded According t0 Legal Effect Damages—General and Special

119 120 120 „20 121 122 122 123 124 124 125 126 128

CHAPTER 6. THE DECLARATION—GENERAL RULES AS TO MANNER OF PLEADING 55. Statements to be Positive 56. Certainty in General 57. When a General Mode of Pleading is Proper 58. When General Pleading is Sufficient 59. What Particularity is Generally Required 60. Facts in Knowledge of Adversary 61. Inducement or Aggravation 62. Acts Regulated by Statute 63. What May Be Omitted—Matters Judicially Noticed 64. Matters in Anticipation 65. Matters Implied 66. Matters Presumed 67. Surplusage 68. Descriptive Averments 69. Repugnancy 70. Ambiguity or Doubt

130 131 134 135 135 136 136 138 139 140 141 142 142 144 145 146


71. 72. 73. 74. 75. 76.

Pleadings in the Alternative Duplicity in General Inducement Consequences of Duplicity Pleadings to be True Conformance to Customary Forms

147 148 148 149 150


77.Scope of the Action CHAPTER 7. THE ACTION OF TRESPASS 79.Declaration in Trespass—Essential Allegations: (1) In General 80.Declaration in Trespass—Essential Allegations: (2) The Plaintiff‟s Right, Title, Interest or Possession 81.Declaration in Trespass—Essential Allegations: (3) The Defendant‟s Wrongful Act 82.Declaration in Trespass—Essential Allegations:
(4) The Damages 78.Forms of the Declaration


156 156 164

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83.Status Under Modern Codes, Practice Acts and Rules of Court CHAPTER 8. TilE ACTION OF TRESPASS ON THE CASE 84. Scope of the Action 85. Case Distinguished From Trespass 86. Election Between Trespass and Case 87. Form of the Declaration in Trespass on the Case 88. Declaration in Trespass on the Case-Essential Allegations: (1) In General

170 173 176 181 182 183

Declaration in Trespass on the Case—Essential Allegations: (2) The Plaintiff‟s Right, Title, Interest or Possession 183 90. Declaration in Trespass on the Case—Essential Allegations: (3) The Facts Showing the Existence of a Legal Duty on the Part of the Defendant 183 91.Declaration in Trespass on the Case—Essential Allegations: (4) The Defendant‟s Wrongful Act in Breach of His Duty 184 92.Declaration in Trespass on the Case—Essential Allegations: (5) The Damages 186 93. Particular Applications of Case as the Great Residuary Common-Law Remedy for Various Wrongs 187 94. Anticipating Defenses in Case 202 95. The Expansionistic Character ofCase 203 96. Status Under Modern Codes, Practice Acts and Rules of Court 203 97. 98. 99. 100.


CHAPTER 9. THE ACTION OF TROVER Scope of the Action Property Which May be Converted Trover—Distinguished from and Concurrent with Other Actions Form of the Declaration in Trover nIH TABLE OF CONTENTS

206 207 209 211

101.Declaration in Trover—Essential Allegations: (1) In General 102.Declaration in Trover—Essential Allegations: (2) The Plaintiff‟s Right, Title, Interest or Possession 103.Declaration in Trover—Essential Allegations: (3) The Defendant‟s Wrongful Act of Conversion 104.Declaration in Trover—Essential Allegations: (4) The Damages 105.Status Under Modern Codes, Practice Acts and Rules of Court CHAPTER 10. THE ACTION OF EJECTMENT 106. Scope of the Action

211 212 217 223 223 225 236

Actions 108. Forms of Declaration and Common Consent Rule
109. Declaration in Ejectment—Essential Allegations: (1) In General

Ejectment—Distinguished From and Concurrent with Other


110. Declaration in Ejectment—Essential Allegations: (2) The Plaintiff‟s Right, Title, Interest or Possession 111. Declaration in Ejectment—Essential Allegations: (3) The Wrongful Ouster or Dispossession 112. Declaration in Ejectment—Essential Allegations: (4) The Damages 113. The Judgment in Ejectment 114. Declaration in Trespass for Mesne Profits—Essential Allegations: (1) In General

2‟38 288 238 239 239

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115. Declaration in Trespass for Mesne Profits—Essential Allegations: (2) The Plaintiff‟s Right, Title, Interest or Possession 116. Declaration in Trespass for Mesne Profits—Essential Allegations: (3) The Ouster or Ejeetment 117. Declaration in Trespass for Mesne Profits—Essential Allegations: (4) The Damages
118. Status of Ejectment and Trespass for Mesne Profits Under Modern

240 241 241 241 244 247 248 249 249 250 251 251

Codes, Practice Acts and Rules of Court

119. i20. 121. 122. 123. 124. 125. 126.

CHAPTER 11. THE ACTION OF DETINUE Scope of the Action Detinue—Distinguished From and Concurrent with Other Actions Forms of Declaration and Judgment in Detinue Declaration in Detinue—Essential Allegations: (1) In General Declaration in Detinue—Essential Allegations: (2) The Plaintiff‟s Right, Title, Interest or Possession Declaration in Detinue—Essential Allegations: (3) The Unlawful Detention Declaration in Detinue—Essential Allegations: (4) The Damages Status Under Modern Codes, Practice Acts and Rules of Court
Scope of the Action



129. Forms of Original Writ, Plaint, Declaration and Bond in Replevin 258 130.Declaration in Replevin—Essential Allegations: (1) In General 262 131.Declaration in Replevin—Essential Allegations: (2) The plaintiff‟s Right, Title, Interest or Possession 262 132.Declaration in Replevin—Essential Allegations: (3) The Wrongful Act of Taking and Detention by the De fendant 266 133.Declaration in Replevin—Essential Allegations: (4) The Damages 268 184.Status Under Modern Codes, Practice Acts and Rules of Court 270


128. Beplevin—Distinguished From and Concurrent with Other Actions 257 TABLE OF CONTENTS


185. 136. 137. 188. 139. 140. 141. 142. 143.

CHAPTER 13. THE ACTION OF DEBT Scope of the Action Debt—Distinguished From and Concurrent with Other Actions Forms of Declarations Declaration in Debt—Essential Allegations: (1) In General Declaration in Debt—Essential Allegations: (2) In Debt on Simple (Executed) Contract Declaration in Debt—Essential Allegations: (3) In Debt on a Specialty Declaration in Debt—Essential Allegations: (4) In Debt on a Statute Declaration in Debt—Essential Allegations: (5) In Debt on a Judgment Status Under Modern Codes, Practice Acts and Rules of Court

274 279 282 285 292 295 297 299

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CHAPTER 14. THE ACTION OF COVENANT 144. Scope of the Action 145. Covenant—Distinguished From and Concurrent With Other Actions 146. Form of Declaration in Covenant 147. Declaration in Covenant—Essential Allegations: (1) In General 148. Declaration in Covenant—Essential Allegations: (2) The Execution of the Covenant 149. Declaration in Covenant—Essential Allegations: (3) The Promise 150. Declaration in Covenant—Essential Allegations: (4) The Performance of Conditions Precedent 151. Declaration in Covenant—Essential Allegations: (5) The Breach 152. Declaration in Covenant—Essential Allegations: (6) The Damages 153. Status Under Modern Codes, Practice Acts and Rules of Court CHAPTER 15. THE ACTION OF ACCOUNT 154. Scope of the Action 155. Account—Distinguished From and Concurrent with Other Actions 156. Form of Declaration in Account fly

303 805 306 306 307 307 307 808 308 306

310 314
Page 813

157. Declaration in Account or Account Render—Essential Allegations: (1) In General 158. Declaration in Account or Account Render—Essential Allegations: (2) A Statement of the Facts Showing a Legal Relation Be tween Plaintiff and Defendant Which Gives Rise to the Right to an Accounting 159.Declaration in Account or Account Render—Essential Allegations: (3) The Refusal to Account or the Breach 160.Declaration in Account or Account Render—Essential Allegations: (4) The Damages 161.Status Under Modern Codes, Practice Acts and Rules of Court CHAPTER .16. THE ACTION OF SPECIAL ASSUMPSIT 162. Scope of the Action 163. Special Assumpsit—Distinguished From and Concurrent With Other Actions 164.Form of Declaration in Special Assumpsit 165.Declaration in Special Assurnpsit—Essential Allegations: (1) In General 166.Declaration in Special Assumpsit—Essential Allegations: (2) The Statement of the Making of the Contract and the Terms of Promise on winch the Action is Founded 167.Declaration in Special Assumpsit—Essential Allegations: (3) The Consideration 168.Declaration in Special Assumpsit—Essential Allegations: (4) The Performance by Plaintiff of All Conditions Precedent 328 169.Declaration in Special Assumpsit—Essential Allegations:




315 316 316 316

318 821 323. 323 325 322

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(5) The Breach 170.Declaration in Special Assumpsit—Essential Allegations: (6) The Damages 171.Status Under Modern Codes, Practice Acts and Rules of Court CHAPTER 17. THE ACTION OF IN]3EBITATUS ASSUMPSIT 172. Scope of the Action 173. Express Contracts Which Do Not Exclude Indebitatus Assumpsit 174. Indebitatus Assumpsit Distinguished From and Concurrent With Other Actions 175.Forms of Declarations in Indebitatus Assumpsit 176.The Common Counts 177.Contracts of Record and Statutory Liabilities 178.Declaration in Indebitatus Assumpsit—Essential Allegations: (1) In General 179.Declaration in Indebitatus Assumpsit—Essential Allegations: (2) Statement of an Executed Consideration 180.Declaration in Indebitatus Assumpsit—Essential Allegations: (3) The Promise 181.Declaration in Indebitatus Assumpsit—Essential Allegations: (4) The Breach 182.Declaration in Indebitatus Assumpsit—Essential Allegations; (6) The Damages 183.Status Under Modern Codes, Practice Acts and Rules of Court xrvrI TABLE OF CONTENTS

332 333 334



337 343

344 347 360

362 362 364 364 865 365

184. 185. 186. 187. 188.


Demand of Oyer Views, Aid-Prayer and Voucher to Warranty Imparlance Motion for a Eill of Particulars Status Under Modern Codes, Practice Acts and Rules of Court


Page 368 370 371 372 375


189, 190. 191. 192.

CHAPTER 19. CONSIDERATIONS PRELIMINARY TO THE CLASSIFICATION OF DEFENSES Parties Must Demur or Plead 378 Pleas: Dilatory or Peremptory 379 Other Stages of Pleading Beyond the Declaration and Plea 380 E]eetion to Demur or Plead—Factors to be Considered Forced Issues Tinder the Codes 382
The Nature and Office of the Demurrer



195. The Speaking Demurrer 196. The Demurrer and Other Pleadings Distinguished 197. The Scope of a Demurrer
198. 199. 200. 201. 202.

387 388
388 ~89 396 400 405


General and Special Demurrcrs and Defects Available Thereunder Effect of Demurrer—By Way of Admission Effect of Demurrer—Tn Opening the Record Judgment on Demurrer Status of the Demurrer—Under Modern Codes, Practice Acts and

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Rules of Court 203. 204. CHAPTER 21. PLEAS--DILATORY The Nature of Dilatory Pleas The Order of Dilatory Pleas 205. Pleas to the Jurisdiction 206. PIcas in Abatement 207. Noojoinder or 1\iisjoinder of Parties Plaintiff in Contract 208. Nonjoinder or Misjoinder of Parties Defendant in Contract 209. Nonjoinder or Misjoinder of Parties in Actions Ex Delicto 210. Requisites of Pleas in Abatement



211. Pleas in Suspension 212. Judgment on Dilatory Pleas
213. 214.

Formal Commencement and Conclusion Status Under Modern Codes, Practice Acts and Rules of Court

411 412 416 423 424 426 428 429 430 430 432

CHAPTER 22. PLEAS—PEREMPTORY OR IN BAR 434 215. The General Nature of Pleas in Bar 216. The Various Forms of Traverse or Denial 435 217. The General Requisites of Traverse 436

Sec. Page 218. Materiality of the Traverse 439 219. Selection of Issuable Proposition 441 220. Denial of the Essentials Only 441 221. Negatives and Affirmatives Pregnant 444 222. The Specific or Common Traverse 446 223. The Special Traverse 447 224. The General Issue—Its Nature and Use 457 225. Pleas in Confession and Avoidance—The Nature and Form 460 226. Giving Color 462 227. Pleadings in Estoppel 465 228. Admission by Failure to Deny 465 229. Protestation 466 230. Argumentative Pleas 467 231. Pleas Amounting to the General Issue 469 232. Partial Defenses 472 233. A Pleading Bad in Part is Bad Altogether 473 234. Several Defenses 475 235. Duplicity in Pleas—In General 480 236. Dup]icity—Immaterial Matter 480 237. Duplicity—Matter Ill Pleaded 481 238. Duplicity—Matters Forming a Connected Proposition 482 239. Duplicity—Protestation 484 240. What Defenses May he Shown Under the General Issue and What May or Must be Pleaded Specially 484 241. The General Issue in Trespass 485 242. Pleas in Confession and Avoidance in Trespass 486 243. The Ililary Rules—Their Effect Upon Negative and Affirmative Defenses in Trespass 488 244. The General Issue in Trespass on the Case 488 245. Pleas in Confession and Avoidance in Trespass on the Case 490 246. The Hilary Rules—Their Effect Upon Affirmative and Negative Defenses in Trespass on the Case 492 247. The General Issue in Trover 493



Page 14 of 736

TilE REPLICATION sUmpsit Pleas in Confession and Avoidance in Special Assumpait Page 505 505 507 507 508 510 504 510 ~11 512 512 512 513 513 515 279. Recoupment and Set-Off CHAPTER 23. Pleas in Confession and Avoidance in Replevin 500 258. 264. The Various Kinds of Replication 518 The Replication De Injuria—Definition. Pleas in Confession and Avoidance in Debt on Simple Contracts and Statutes 502 260. The General Issue in Debt on a Specialty 503 262. The General Issue in Detinue 496 253. Pleas in Confession and Avoidance in Detinue 497 254. The General Issue in Special Assumpsit 271. The Kinds of Departures and the Stage of Pleading at Which They May Occur 286. The Hilary Rules—Their Effect Upon the Scope of the General Issue in Debt on Simple Contracts and Statutes 502 261. Departure Defined and the Reason for the Rule Against Departure 525 285.248. The General Issue in Replevin 497 256. 280. Practice Acts and Rules of Court 522 284. 267. The Hilary Rules—Their Effect on the Scope of the General Issue in Special Assumpsit 272. 282. 260. The General issue in General or Indebitatus Assumpsit 273. The General Issue in Debt on Judgments Pleas in Confession and Avoidance in Debt on Judgments The General Issue in Covenant Pleas in Confession and Avoidance in Covenant The Hilary Rules—Their Effect Upon the General Issue in Cov enant 269. The Rilary Rules—Their Effect Upon the Scope of the General Is sue in General or Indebitatus Assumpeit 275. The Mode of Taking Advantage of a Departure 528 -- 526 Page 15 of 736 . Scope and Availability 519 Forms of Plea and Replication De Injuria Thereto 521 Formal Parts of Replication 522 Status of the Republican De Injuria Under Modern Codes. Pleas in Confession and Avoidance in General or Indebitatus As 274. The Hilary Rules—Their Effect Upon Negative and Affirmative Defenses in Trover 493 250. 265. 270. The Genera] Issue in Ejeetment 494 251. Pleas in Confession and Avoidance in Debt on a Specialty 503 263. Pleas in Confession and Avoidance in Ejectment 495 252. The Hilary Rules—Their Effect Upon Negative and Affirmative Defenses in Detinue 497 255. 283. Plea Puis Darrein Continuance 278. Pleas in Confessioa and Avoidance in Trover 493 249. The General Issue in Debt on Simple Contracts and Statutes 500 259. The Special Traverse in Replevin 499 257. 281. The Hilary Rules—Their Effect Upon the General Issue in Debt on a Specialty 504 fly” TABLE OF CONTENTS Sec. Notice of Defenses Under the General Issue 277. 268. Comparison of Scope of Different General Issues 276.

See comment in Stephen. Cd. B. Practice Acts and Rules of Court CHAPTER 24. A Treatise on the Principles of Pleading in Civil Actions. Relation of Common-Law Pleading to Other Systems. 290. 289. See. is as old as the I.5—2 CHAPTER 25. 6. Practice Acts and Rules of Court— Merely Another Step in the Evolutionary Development of the Common Law. Trial by Jury KoTher & Reppy CornLaw Pldg. Necessity and Application 529 Form of New Assignment 530 New Assignment as in the Nature of a New Declaration 530 Status of New Assignment Under Modern Codes. c. in The ff155017 of the Common Law. 3. Dublin. - COMMON-LAW PLEADING. *1. 291. 2. LITIGATING THE CONTROVERSY 295. C. 147 (3d Am. Joinder of Issue PART FIVE.287. 288. The Statement of Sir Mathew Rain. TENDER. Production of Issue 293. VIII. 173 (4th Cd. Modern Procedure Under Codes. 7. Cf. by Tyler. Trial by Court 296. 1. AND JOINDER OF ISSUE 582 532 535 529 531 292. 1792).. 5. The Importance of Common-Law Pleading. bringing legal issues perfected during the Reign of Edward m before the Courts of England. 4. Tender of Issue 294. Practice Acts and Rules of Court New Assignment—Definition. The Functions of Pleading at Common Law. THE PRODUCTION. Page 16 of 736 . The Status of Common-Law Pleading Under the Codes. Of the Principal Rules of Pleading. Washington. c. TRIAL BY COURT OR BY JURY XXIX 536 538 HANDBOOK ON COMMON-LAW PLEADING PART ONE DEVELOPMENT OF COMMON LAW PLEADING AND ITS IMPORTANCE IN MODERN PRACTICE The Place of Common-Law Pleading in the Law. II. the ancient Reign of Edward I (1272~1307)1 and further methodology used for CHAPTER 1 1892). The Development of Substantive Law out of Procedure. Status of Departure Under Modern Codes.

by W. Britton. N. 2 vols. Tractatus de Legibus et Consuetudinibus regnit Angliae (1187—1189) INew edition edited by George B. (Chicago 1890). A System of Pleading. Paul 1905). Practical Treatise on Pleading (Boston 1811). based on Bracton. Aston.COMMON-LAW PLEADING AND PRACTICE—STILL SURVIVES AS THE BASIS OF MODERN REMEDIAL LAW Anglo-Saxon Legal System and as new as yesterday‟s cases before the Trial and Appellate Courts o( the United States. Pleading (London 1846). (Edited by Evans. Woodbine. Perry. from 5th English ed. with Precedents and Forms (London 1808. London 1948). Procedure and Form~ of Common Law Pleading (Washington. Scott. New York 1894). 4 vols. Handbook of Common Law Pleading (3d ed. Chitty. Shinn. Placita Latine Rediviva: A Book of Entries (1601—1878). Coke. Shipman. Bracton. (Portsmouth. PhiladelphIa 1831). Rastell‟s Entries (1564). Magna (1270—1275). Civil Procedure at Common Law (St. First formed and cultivated as a science in the 1 BASIS OF MODERN REMEDIAL LAW In general on the subject of Common-Law Pleading. and reported in Woodbine. Introduction to Pleading and Practice (London 1857). London 1897. all of whom lived before 1260. The Exact Pleader: A Book of Entries (1684). Common Law Pleading and Practice In IllInois (6th ed. Articuli ad Novas Narrationes (1326— 1340).. Tyrwhltt. consisting for most part of Precedents of Pleading. Principles of Pleading and Practice In Civil Actions In the nigh Court of Justice (1st ed. Natura Brevium (1534).. London 1935). London 1900. and Judicial Writs. (New Haven. Buhlen and Leake‟s Precedents of Pleadings in Actions in the King‟s Bench Division of the Nigh Court of Justice (8th ed. 4th ed. 2 vols. Winfleld. N. Pour ThIrteenth Century Law Tracts [on Pleading] (New Raven 1910). 1 Treatises: Glanvill. Doctrina Placitandi. Cadit Assisa (1267 or after). Lawes. 4th ed. 1808)]. 2 vols. Treatise on the Pleadings and Practice of Real Actions (Boston 1828). Pynson‟s Book of Entries (1510). B. Eceptienes ad Cassandum l3revia (7285 or after). Verdicts. Fifoot. Plucknett. MclCelvey. The Nature and Practice of Real Actions (1st Am. by Tyler.. London. A New Book of Declarations. Clift. Booth.. History and Sources of the Common Law (London 1949). Principles of Civil Pleading (Boston Page 17 of 736 . Pleading in Civil Actions (2d ed. from 1st London Cd. Pleading and Practice in Courts of Common Law (Baltimore 1897). New York 1808). Wyatt-Paine. Browne. 1910). Maitland. Coke. Could. 5th ed. Puterbaugb. London 1940. containing Instruction as to Pleading and Procedure in certain Real Actions. Hening. Odgers. D.L. by F. ed. 3d e. (a tract on the Writs]. O‟Donnell. Evans. C. by William Miller. Shlnn. Cambridge. Digest of Original Writs and Things Concerning Them (1579). by Ballantine. or the Art and Science of Pleading (Dublin 1701). Elementary Treatise on Pleading (London 1806) list Am. (~pringfleld 1833). Hengharn. Ancient Pleas of the Crown (Trans. and containing information on the rules of Pleading and Procedure in the Real Actions. 1878—1883]. Common-Law Pleading (Boston 1897). 1719). ed. Formulae beiie Pledtandi: A Boolr of Entries (1671. a selection of Writs together with a commentary. ed. 1892). Millar. by Wihiston. Fundamentals of Procedure in Actions at Law (New York 1922). American Precedents and Declarations (Boston. including translation of the Doctrina Placitandi. [tract on the Writs]. D. Modus Componendi Brevia or Cum Sit Necessarium (1285 or after). from 2d London cd. The Court Baron (London 1891). Jackson. an English edition appeared in 1741). Perkins. Story. Liber Placitandi (London. with the Entries Thereupon (1703. Fleta. Heard. Stephen. according to Holdsworth. a collection of decisions of Judges. 1270). 1674). 1802). a tract on Procedure probably by Ilengham. Chitty. Woodhine. M. (New York 1811). Declarations and Pleadings contained in his eleven Books of Reports (1650). 1675). Stephen. London 1903.. Equity. a summary of that part of Bracton‟s Treatise dealing with the Assist 0f Mort d‟Ancestor fnew edition by Sir Travers Twiss. a View of the Whole Proceedings in a Suit at Law (3rd Am. ed. Vivian. Maitland and Baildon. A Complete System of Pleadings (London 1797-49). C. Book of Entries (1014). Lilly. London 1891. Principles of Pleading in Civil Actions (Am. Yet Assayer (before 1267). A Collection of Modern Entries (1723. Treatise on Pleading with Precedents. London 1924. Euer. Powell. Treatise on Pleading and Practice (Chicago 1892). 16th Am. Martin. 3 vols. Do Legibus and Consuetudinibus Angliae (1250-4258) (London. The American Pleader and Lawyer‟s Guide. ed. Judgments. Treatise on Pleading and Practice. Chicago 1879). containing: Judicium Essoniorum (1267—1275). Baltimore 1821). Selection of Pleadings in Civil Actions Subsequent to the Declaration (Salem 1805). 6th ed. Register of Writs (132G—1377). History of Conspiracy and Abuse of Legal Procedure (Cambridge 1925). C. Principles of Common-Law Pleading (1st ed. 1934). Paul 1923). a most orderly treatise on Procedure grounded on the Year Books and printed at the end of the 1687 edition of the Register of Writs. Williams. Pana (1285 or after). 1880).. Modern Entries. The Forms of Action at Common Law (Cambridge 1909). An Epitome of Britton (1290). Casus Placitorum. by J. a tract on Essoing probably by Hong-ham. Fitzherbert. by L. Lawes. 1932)]. Treatise on the Principles of pleadings In Civil Ac tions (1832). Theloau. Principles of Pleading in Civil Actions. Springfield 1879). Nichols. Common-Law Pleading (Chicago 1914). Pleadings. Chicago 1916). 1640). Buer. The Law of Pleading and Evidence in Civil Actions (2d Am. Washington. see the following: Ch. Pour Thui‟teenth Century Law Tracts (New Haven. St. Concise History of the Common Law (3d ed. Harris. Attorney‟s Academy (1623). Poe.. Hengham. or The Art and Science of Pleading (1640). Wentworth. 1895). and which in style and subject matter anticipated the Year Books.. Puterbaugh. Saunders. 9th ed. Treatise on Pleading and Parties to Actions. a book of Special Pleadings containing Precedents.

“The Remedial Part of the Law resembled a mass of patchwork. AtkInson. strict Common-Law theory as to the Scope of the Page 18 of 736 .. and was published in 1824. Lecture xxxv. Edward LIvingston was born in 1764 and died In 1836. drew their own pleadings. for the purpose of meeting the exigencies of the times by temporary expedientt” Walker‟s Introduction to American Law. Livingston‟s Penal Code. &c.. Lloyd. A Selection of Cases on Pleading (let ed. 569 (11th Cd. Cases and Other Materials on Civil Procedure (Boston 1950). both without lameness and curiosity.. A native of New York.. PhIladelphia. Cases on Common-Law Pleading (1st ed. due largely to the fact that the entire English Procedural System had grown up in a patchwork fashion. Cases on Pleading (Boston 1905). New 5. London 1952).. Cook and Hinton. Cases and Other Authorities on Civil Procedure (Cambridge 1915). Scott and Simpson. Cap. Introduction to Civil Procedure (Buffalo 1954). 7th ed. which was a product of Intensive preparation. Cases on Common-Law Pleading (St Paul 1916). ~ 534 (1st Am. In the latter part of the Eighteenth and early part of the Nineteenth Centuries. Lit. Reppy. its Special Pleading. 304b. first bore fruit in America in the State of Louisiana. Shipp and Daish. which was published in 1824. withoutany preconceived plan or system. Rochester 1934). Cases and other Materials on Judicial Remedies (Cambridge 1946). Scott and Simpson. which latter was never adopted. Livingston. The impact of this development.. For more than Six Centuries. Clark. and its general atmosphere of Delay and Administrative Inefficiency. London 1912. Cases on Civil Procedure (Indianapolis 1915). Enacted by Louisiana in 1805. 1905). Cases on CommonLaw Pleading (Chicago 1013). Cambridge 1875. for then the Judges and Professors of Law were excellently learned. attracted great attention in England and on the Continent. Paul 1927). Cases on Pleading jn Actions at Law (Indianapolis 1927). 0. with the framing of Livingston‟s Code of Practice ~ and the Penal Code in 1824. t The Hilary Rules. or about six years after Field began his ProfessIonal Career. 14th ed. and then Knowledge of the Law flourished. a demand for Reform sprang up and the movement for the improvement of procedure slowly got under way. Cases Illustrating Common-Law Pleading (Chicago 1903). ExcheqLondon 1906. for before that time the Manner of Pleading w~s but feeble. casebooks~ Ames. LIb. Sunderland. 1812). tieton.~ it has served each succeeding generation as an effective instrument in the Administration of Justice. Common Law Actions) (Chicago 1940). Boston. System and as a guiding force in the recurring Waves of Reform designed to correct its abuses.” 2 Coke. 2d ed. Cook and Hinton. strangely enough. and therefore [it was] truly said by Justice Thirning. in the Reign of Henry IV (1399— 1413) that in the time of Edward III the Law was in a higher degree than it had been any time before. was never enacted Into Lair as such by the Legislature of Louisiana. David Dudley Field Centenary Essays. Maglfl.~ This was followed in England by the adoption of the Rilary Rules in 1834. Keigwin.2 3 (1327—1377) . VI. made up at intervals and by pIecemeal.. by Francis Hargrave and Charles Butler. 4. Reppy. 3. Cases on Clvii Procedure (St. Cases on Pleading at Common Law (revision of Part I. Whittier and Morgan. with its Courts. 19 (EdIted by Reppy. Pt. 1949). these restrictive influences be-caine clear to the people. Keen. Rochester 1926. 2d ed. the Serleants of the Law.6 and 3. Cases on Common-Law Pleading (Cincinnati 1931). 5- COMMON-LAW PLEADING In referring to the Improvement In the Science of Pleading. Lloyd. Cases on Pleading at Common Law (Chicago 1923). Introduction to Pleading and Procedure (Columbia 1940). Sir Edward Coke declared: „In the Reign of Edward III (1327—i277) Pleadings grew to Perfection. and today is still very much alive. Cases on Pleaffing at Common Law (New York 1928). uer and Common Pleas—and for two hundred years it was the exclusive procedural device leading to the Trial of Legal Issues in the United StatesIt was. from the 16th European ed. In comparison of that It was afterward In the Reign of the same KIng. under the impetus of Bentharn‟s searing criticism of the existing System of Law in England. both as an Operating. 3 while the constantly expanding Substantive Law was outgrowing the Forms of Action which gave it birth. subject to many defects. Scott. designed to restore the ancient York. and a brother of Chancellor Robert It. however. his Penal Code of Louisiana. it was the only Method of Pleading in the Common-Law Courts of England— King‟s Bench. Cambridge 1905).

120 (1860). mental. with certain modifications. it became known at once as the Code of Procedure or as the Field Code. Part I.A. The rules suggested therein were adopted. St. 48 Stat.UL.12 now for the most part replaced by the Supreme Court of Judicature (Consolidation) Act of 1925. 1949). 42. 323 U. 36 & 37 Vict.A!. IV. or by Rule of Court. Y.‟~ Select any individual and you will find that he is what he is today because yesterday. 49 (1925).13 And in 1938 the Supreme Court of the United States made effective the New Federal Rules of Civil Procedure.~ Thereafter. 125 (1854). 109 A. 1944. fl3c. I.L. in the David Dudley Field Centenary Essays. Systems and Function of Pleading. were promulgated pursuant to the Law Amendment For the history and effect of the Iliiary Rules in England. of what his father and mother were “While the New Rules have abolished the distinctIve Common-Law Forms. C. 31—39 (24 Cd. 17. Huff. by the Court on December 26. 379. 58 Yale L. The Reform of Judicial Procedure. The Federal Rules were drafted by an Advisory Committee appointed by the Supreme Court under the authority of a Federal Statute enacted In j034. Handbook of the Law quence thereof.J. both at home and abroad. which has subsequently substantially influenced State Criminal Procedural Developments In the Several States. S. Written in the form of a Code Containing 391 Sections. Desslon. Page 19 of 736 . 1 Cam. moral and spiritual assets with which he was naturally endowed by the union of his parents. See. the AdvIsory Committee on Rules of Criminal Procedure was appointed by the Court. Paul 1947). Act. in relatively quick succession. c. 821. 84. 65 S. c. has been Modified by Judicial Decision.B. on the earlier phases of the struggle for Federal Procedural Reform. 197—257 (1947). 33— 34 (Edited by Reppy. see.C. the essentIal and differentiating rules applicable to Pleading as established at Common Law still survive as a basis of Remedial Law. 1064. The New Federal Rules of Criminal Procedure. pursuant to the rule-making authority granted to the Supreme Court by Congress.” Reppy. 11. and in some Jurisdictions ostensibly swept away in its entirety—so the Reformers thought—but subsequent events have cast grave doubts on this conclusion. For detailed Information concerning the adoptIon. which published two Prellmiaary Drafts.8 1854. c.Ct. 1 Va.15 & 10 Vict.L. V. ~ 723b. 81. 694—714 (1946). 55 Yale L..° and 1860. 14. The Ililary Rules and Their Effect on Negative and Affirmative Pleas under Modern Codes and Practice Acts. 261 (1923). 287. the English Parliament enacted the Common-Law Procedure Acts of 1852.Q. 06 (1873). & 39 Viet. 94 N-J. 95 (1929). CLXXIV (1944). e. 9-17 & 18 Vict. In this connection it should be recalled that progress in the Reform of Criminal Procedure has followed up and to some extent paralleled the Reform of the Civil Procedure which has been under way since 1848. for the history and effect of the Hilary Rules in the Several States of the United States.77 (1875). lieppy. the draft tot a proposed code] was enacted into Law on April 12. Changed by Statute. 90 (1940). c. The Court also gave directions that the Rules be reported to Congress In accordance with the terms of the Enabling Act.” Mi nturn. 1944. “To Form a More Perfect Union”. New York.38 13. 15 & 10 Geo. and expressly retained the Old Common Law or Statutory Rule where not expressly abolished by the Code. with motes. Eistory. Act of June 19. it 23 & 24 Vict.J.Rev. ~ 1 (1833). 8. see Clark.Y. 1548.J. artide by Shelton. See. 7. but must make his way through life with the physical. ii 651.S. 15. 89 (1913). Editorial. c. 28 U.S.10 and the Supreme Court of Judicature Acts of 187311 and 1875. see article by Holdsworth. 76 (1852). as the solemn and stubborn fact is that Common-Law Pleading still survives as the basis of our Modern Remedial Law. The Field Codification Concept.flRev.14 In conseGeneral Issue. to become effective on July 1 of the same year. 288 (1920). In 1941. background and drafting of the Federal Rules of CivIl Procedure. 3 & 4 Wm. In 1930 the American Law Institute issued its Code of Criminal Procedure. he cannot escape his ancestry. 12. In Ward v. 1934.. Part II. 2. ~ 1. 1946. e. N. 32 A. It is true that within certain limits he may seem to change with his environment. the System of Pleading as developed at Common Law.“After careful consideration and amendment by the New York Legislature. and its Final Report to the Court in July. of code Pleading.BASIS OF MODERN REMEDIAL LAW in the United States by the New York Code of Procedure in 1848. c. to become effective on March 21. also.Laws 1848. 6 N. The New Rules of Pleading of the Hilary Term. This title was far too broad in scope as the Act related only to a small portion of the Adjective Law.

just as the Modern Common-Law Actions superseded the Old Real Actions 16 when they became archaic.L. the Writ of Dower wide nihul Rabet. to the cause of 16.” Shipman. students of law. Code Pleading: The Aid of the Earlier Systems. under Modern Codes and Practice Acts. so with the Common-Law System of Procedure. must progress against the background of its history. we may change. or framed by analogy Ia the application of the same principles. • Infinite damage has been done to the cause of legitimate Legal Reform. and contribute more to the community than did his forbears. among others. too. 3 & 4 Wni. which swept aside the Real and Mixed Actions. are merely the product of joint individual effort. to abolish the System in its entirety. effective December 31. during the earlier years of their adoptiun. but it is no more possible. as the Writ of Right de rationabili parte. often lose sight of their real object In a feverish anxiety to „cut deep‟ and at once. which we all proudiy claim as a priceless part of our Anglo-Saxon heritage. and reducing to a moderate sum the costs payable on the grant of such privilege.. § 36. long before occurred as matter of practice. And so it is with institutions such as the Law which. in any realistic sense. 239 (1896). 238.J. than is generally realized. were gradually superseded by what are now known as the Eleven Modern Common-Law Personal Actions. IV. or for mankind to abolish history or civilization. and the Writ of quare impedit. in reference to the utility of the study of Common-Law Pleading stated:”Jn the hands of those who understood it. a Legal Education. In truth.— an Impediment to Justice that must be abolished. even these evils might well have been remedied by allowing free liberty of amendment. and expected. In effect. nor experience of the past thirty years has demonstrated that the Codes have by no means brought about that perfect completeness and simplicity in all Forms of Legal Procedure hoped for and predicted by their supporters. and it. Because of the technIcalities required Ia their Control and the length of tUne Involved in carrying their process through. Like the individual.‟7 and is not to be considered in terms of Modem Pleading and Practice. the Writ of Dower. under Page 20 of 736 . “The Problems and Functions and Principles of Pleading are essentially the same in all systems. the Writ of Advowson. at the expense of litigants. by theft‟ more acute brethren. 10 Harv. whether at Common Law.C. Sir Montague Crackeuthorpe. these actions. and this explains why the system for bringing a cause to trial In convenient and exact form was discarded. 5 The old Real Actions fell under one of the heads of Blackstone‟s famous classification of Actions as Real. it would never have beer. Those concerned in i’eform movements. Personal and Mixed. arid the pop— ular mind came to consider the whole system a mere series of traps and pitfalls for the unwary. The Real Actions were by far the most important during the early developmental period of the Common Law.4 Ch. 1834. the System of Common-Law Pleading was infallible iii attaining the purpose for which it existed. The 1*. in an address to the American Bar Association. and 8 even under the New Federal Rules of Civil Procedure now in effect in the Federal Courts. aid in terms of Modern Legal Education . thus overlooking the salient fact that it had developed many sound and enduring principles of legal procedure. with all its implications for both the past and the future. it cannot escape its ancestry. as a result of evolutionary steps In the development of the Common Law.Those who take this limited view have clearly confused the real merits of the Common-Law System with those portions of the System which were needlessly technical. deliberately It is to be feared. 27. They have also overlooked the fact that there is greater similarity in the essential principles underlying Pleading at Common Law. however. in Equity. but any advance or improvement he may make must be done within the limits of his ancestral background. after all. with certain exceptions. the essential elements of causes of action which must be Pleaded have not been abolished by the Reformed Procedure. than it is for an individual to destroy his ancestry. If all who brought Causes to Trial had possessed a proper acquaintance with this Branch of Law and a reasonable mental alertness. O. perhaps. What had. by proclaiming the concept that all that has gone before in our procedural ancestry should be regarded as obsolete and worthless. we may add to or take away those Parts of the System which have outgrown their usefulness. Is no rule regulating the substance of Pleadings under the Codes which Is not either taken directly from the older system.‟ 17. and the public welfare generally. But pleaders of inferlor and slovenly mental disposition suffered themselves to be misled. was officially recognized by the Real Property Limitation Act of 1883. “There BASIS OF MODERN REMEDIAL LAW Cit I Moreover.” Note. 7 Yale L. These actions were feudal In character and were concerned with disputes over land. Common Law Pleading. hinted that Pleading was a means of turning the decision of a question from „the very Right of the Matter‟ to immaterial points. 1 COMMON-LAW PLEADING acquire a better training.Rcv. along wIth those which fell under the other two heads. 197 (1398). The Law is what It is today because of what the Law was yesterday. e. Included therein were Writs of Right Proper and Writs in the Nature of Writs of Rigb~ such Writs.

however. and so appear.” 3 xv 6 7 COMMON-LAW PLEADING Law System of Pleading. 64 N. said: “It must be admitted that many of these distInctions are more artillelal than substantial. and do not contribute very essentially to the promotion of the Ends of Justice.” in Crump V. thus achieving the principal end of all government. was held to contain an the Allegations necessary to constitute a good Indebtedness count in an Action of Debt at Common Law. Caton. 8 (3d ed. The essential principles still remaIn. Vinson. according to their legal effect. stated: “A Count In Indebltatus Assumpsit.” Shipman. 682 (1907). who emphasized its admitted Defects.. Nicholson. we are not at liberty to disregard them. in which the helpless litigant became a pawn in a wilderness of arbitrary technicality and confusion. though. Introduction.” 1~ fi~ a result of such misapplication and chicanery by men who resorted to the technicalities of Special Pleading to serve their own selfish ends. Procedure. 7. v. . Thus. 3. Campbell. and in the soundest and closest logic. Co. 269. to wit. 488 (ChIcago. which are only the rules of logic. So long. in referring to the times of Henry VI (1422—1461) and Bdward (1461—1483). IL Seenote2l onpage7.” In accord: Parsley & Co. 3. framed substantially as required at Common Law.The calamity has been that after other branches of knowledge took a more liberal turn. It now seems appropriate that its function as a workable and expanding Instrument of Justice for genHistory of English Law. 90 P. Thus. Semonian. 84 (1851). which could be sat isfactorily adjusted. Ia Equity. was gradually brought into popular disrepute by the efforts of well-meaning Reformers. 97 Eng. . a Code Complaint which alleged. In Henry mv. Scott. 707. which are the Conclusions from the Evidence. Entirely too much time and effort have been expended in criticising25 or eulogizing2‟ the Common1O. Prolixity. MIms. 707. Beeves. PhIladelphia. Semonian. 85 NC. 1 Burr 317 319. but the Facts. Simple and Material Issue. 40 Cola. have not been abolished by The Code. by Ballantine. Rodman. Si MInn. or by Rule of Court. RaIn-. declared: “We take occasion here to suggest to pleaders that the Rules of the Common Law as to Pleading. 771 (1870). and Obscurity. e. 13 Ill. .” ed. when well understood and explained. XXIII. It is the Object of all Pleading to arrive at some Single.the Code. 340 (1883). that the defendant was indebted to the plaintiff on an Account Past Due. or as an end in itself. as a result of the portrayal by its enemies of the System as a mere game of skill.C. Co. v. and complaints should especially avoid wandering Into matter which if traversed would not lend to a decisive Issue. 331 (1757). v. 330. but failed to point out to the people of England and the United States the matchless precision of the Old System as a vehicle for reducing human controversies into distinct Issues of Fact or of Law.Rep.. As Lord Mansfield so well said: “The Substantial Rules of Pleading are founded in strong sense. Paul. as to Materiality. St. 17 NW. Ia the ease of Solomon v. 210 (lSfl). v. instead of an instrument for the fair and equitable adjustments of substantive human rights. 3. 1923). ZO. 621 (Finlason In Allen v. as we look to the Rules of the Common Law to govern us in Pleading. stated “Such was the humor of the age that this captiousness was not dIscountenanced by the Beach. been changed. 269. 1880). they are made use of as instruments of chicane. are rules of logic not abolished by the North Carolina Code. Pleas should not state the Evidence. Page 21 of 736 . The Rules of Pleading at Common Law have act been abrogated by the Code of Civil Procedure. Crump v. Mims. 40 CoIn.Robinson 1905). in which it was pictured as the master and not the servant of the courts. Henry mv. the mInutiae of Pleading contInued still to be respected with a sort of religious deference. the preservation of Law and Order. in Minnesota. 205. Handbook of Common-Law Pleading. Certainty. for Goods Sold and Delivered. 80. Is now held to be a sufficient compliance with the Code mandate as to Allegations of Fact” Rules of the Common-Law Pleading. the Court remarking thet “under that System of Pleading It was just as necessary to allege the Facts as it is under the Code. 682 (1907). 207. Its Theory and PractIce. 90 P. 04 NC.. Hughes. by being misunderstood and misapplied. have the Fundamental Conceptions common to all Systems of Procedure as to the manner of making Allegations which reveal the contentions of the rival Parties. among other things. the System of Pleading and Procedure as developed at Common Law. the famous historian. 771 (1370).

‟” Stephen.L. who have rashly substituted in Its place the suggestions of sciolists. 1011 (1857). lJ. so that the suitor was perhaps unable to get through the vestibule of Justice to have the Merits of his Case considered. Laudable. then. should be pointed up and emphasized as well as its long-term significance 22 as the fountain-source of our Modem Substantive and Remedial Rights. But this attempt to abolish all species. 078. C. History of Common Law Pleading as Evidence of the Growth of Individual Liberty and Power of the Courts. 1010. and finally. 1926). 525. as it may be called.” 2 Coke.) 523.E. Code Pleading. by Tyler. 3. the current digests disclose an immensely greater number of cases decid ing pure Matters of Pleading in the Code States than eases of that kind coming from Common Law Jurisdictions. Professor Samuel Tyler stated: “It (the Common-Law System of Pleading] must be admitted to be the greatest of all judicial inventions. many of its artificial distinctions and rules became an obstacle to the very purposes which they were intended to serve. founded on Principles of Truth and Sound Reason. Mr. Wieezorelc. during the Reign of Edward IV [1461—1483].J. Paul. it IS absolutely Inseparable from the Correct Administration of Justice In Common-Law Courts. the Code has been of doubtful value In simplifying procedure: “One who will read the Reports of New York or of any other Code State will observe that before the Reform comparatively few Cases turned upon points of pleading. 1913). Philadelphia.Wisconsin Cent. (20 How. if not our very liberties. and establish a single genus. declared: “And know. H. C. Preface viii (Chicago. Cap. that it is one of the most Honourable. by Ballantine. and Profitable Tbings in our Law. which kind of litigation shows no present signs of abatement. and therefore I counsel thee especially to imploy thy courage and care to learn It. my son. In referring to the Art of Common-Law Pleading. by Tyler. in erations. from the 10th European ed. “This [the Common-Law] System. ed. 22. Cases on Procedure Annotated. 38 N. requiring different remedies. 579. is found to be beyond the power of legislative omnipotence.” This problem under the Codes is also discussed in Sunderland. lies In the nature of things. One reason. “By the wooden manner in which It came to be administered. 21. matured by the wisdom of ages. Preface. Washington. also Hemingway. B. 3. and notwithstanding the lamentable confusion and uncertainty. is the place of Common-Law Pleading in the Law and what is its real significance to Modern Procedure? THE PLACE OF COMMON-LAW PLEADING IN THE LAW BASIS OF MODERN REMEDIAL LAW Page 22 of 736 .S. 91 (1855). Introduction. from the bench of the Supreme Court of the United States. Littleton (Institutes of the Laws of England] Lib. Lawyers and Writers. 5 Ala. to abrogate Common-Law Pleading. in its stead. it will also be observed that the adoption of the Code was at once followed by a large Increase of litigation concerning procedural matters. Introduction. Y. § 534 (1st Am. 23 (3d Am. A Treatise on the Principles of Pleading. may be listed the following: Littleton. 1923). Washington. See. other States have followed in her track of barbaric empiricism.” First Report of the Maryland Commissioners on Rules of Practice in the Courts 80.” Grier. rebuked the folly of abolishing Common-Law Pleading. 1 (1929). in both England and America. Treatise on the Principles of Pleading.. is that the Common Law system is so thoroughly settle‟] that few novel questions can arise. They cannot compel the human mind not to distinguish between things that differ. Handbook of Common Law Pleading. its value as an influence which continues and must inevitably continue to mould future AngloSaxon Conceptions of Law and McFaul v. and diverted the attention of the Court to side issues. 61 U. Among the eulogies by Judges. and substituting the Common-Sense Practice. has been ruthlessly abolished in many of our States. 9. The distinction between the different Forms of Actions for different wrongs. 580. ed. “„The love of innovation induced the State of New York some years ago. and that most of such eases involved questions of Substantive Law which were presented in technical guise by reasons of their Development upon the Record. to have the science of well pleading In Actions Real and Personal. Cases in Code Pleading. 16 (Rochester. ii. if we are to preserve our ideal of Government by Law as opposed to Government by Men. 11 (2d ed. According to Professor Keigwin. St. Justice Grier has. and introduce a Code of Procedure for the regulation of litigation in her courts. 15 LEd. 23 What. who invent new Codes and Systems of Pleading to order. v. Ckl Justice in a free society. A. of course. 1893). N.. and the greatly increased expense which has thereby been brought into the Administration of Justice in that State. S Stephen. Co. vii (3d Am. 151 III. 1812). 1892). Indeed.” Shipman. Ramsey. 680 (1894). 6.

v. Minors. of the Massachusetts tern of Code Pleading. And Civil Procedure is “the mode of proceeding by which a legal right is enforced. 329. for the regulation of Practice in the Federal Courts. is concerned primarily with the fundamental principles of Civil Pleading and Practice as developed at Common Law.” Greenidge.- 25. THE PLACE OF COMMON-LAW PLEADING CHART Srrowrna 9 Aw&toAMERICAN PosInoN OF COMMON-LAW PLEADING IN THE LAW I LAW PUBLIC L*w Page 23 of 736 . History. appear clearly from the chart on the next page. 7 Q. by the 26. Lush. St. is found in Part I. The position of Common-Law Pleading in the Law will. 24. Private Law is separated into Substantive Law and Adjective Law. earliest use In America of the As a result of the impact of the New York Code of Procedure in 1848.” Clark. ReassertIon Is the Essence of Procedure. For a definition of Procedure.1. generally accompanied by words. by means of which Rights or Liberties guaranteed by a society are reasserted by its individual members. nnd. Government by Law as opposed to Government by Men. is divided into two branches. came into existence. ANGLO-AMERICAN law has been separated into two main divisions—Public Law— which has to do with the regulation of relations between independent states and between a state and its citizens. Substantive Law. 1 (Oxford 1901). “Code Pleading is the term applied to the Reformed System of Pleading initiated by the New York Code of 1848 and now in force in American jurisdictions. to wit.25 which is a combination of the better elements of the Common Law and Equity Systems of Pleading. and (4) Trial Practice. and Adjective or Procedural Law. 1. included (1) Common-Law Pleading. which defines rights and liabilities. (2) Equity Pleading. (3) Evidence. Art. 30. in 1938.24 our Modern Sys23 Apparently the Constitution of 1780. Introduction. Anglo-American Law is divided into Pub-lie Law and Private Law. 4 (2d ed. The influence of this development under the Codes finally led.Div. in developed societies. and Functions of Pleading. Handbook of the Law of Code Pleading. KY. Paul 1947).. But since it developed from the former systems and in many respects continues various details and parts of them. it is necessary to consider the antecedents of Code pleading in the other systems. aia phrase. in turn. as distinguished from the law which gives or defines the right. and—Private Law— which regulates the relations between the citizens of the state.B. And Adjective Law. therefore. to the New Federal Rules of Civil Procedure Following the example of the nation some of the states subsequently abandoned their Codes in favor of a System of Procedural Regulation by Rule of Court. Private law. c. 1 court a status that has been lost or questioned—it assumes an already violattd right. Poyser Exhibition of Written Documents.Laws 1848. which furnishes the ways and means of enforcing these rights and liabilities. Systems. compare the following: “Procedure may be defined as a Series of Symbolic Actions. The Legal Procedure of Cicero‟s Time. This treatise. for in the sense in which we shall use the term—the sense of regaining before a competent See. however. in its broadest aspects and prior to 1848. with Common-Law Pleading constituting the first procedural topic thereunder. 333 (1881). It Is this latter system which concerns us in this book.” 26 -. c. U.

Page 24 of 736 . A knowledge of Common Law Pleading fs important because (I) Through its study the student acquires a working appreciation of the Historical Development of the Law. Common Law. 1 2.I I I PnvAn LAW ADJECTIVE I SUBSTANTIVE CRIMINAL LAW II LAW ADJECTIVE LAW SUBStANTIVE LAW PROCEDURE I T AoMxNIsTt‟sTIVE LAW PROCEDURE COMMON CODE I INTERNATiONAL LAW PROCEDURE LEADING TRIAL PRACTICE EVIDENCE 10 BASIS OF MODERN REMEDIAL LAW THE IMPORTANCE OF COMMON-LAW PLEADING27 Ch. (II) It is essential as an aid in understanding the early English and American decisions in which Rulings on the Law are only comprehensible to the modern student In the light of a working knowledge of Pleading at (III) It Is an essential ingredient of the process by which the Law Student acquires the technique of analyzing Causes of Action.

the well-educated Lawyer must live through its evolution. 5 (3d ed. XI. the fact that the Older Cases are expressed in Terms of Pleading. To the beginning student or prospective lawyer. Paul 1947)]. second. c. at their Anniversary. OtS. Early Law and Custom. Handbook of the Law of Code Pleading. (Special Pleading) who was not by that very means made a profound lawyer. the relationship between Modern Remedial and Ancient Remedial Law. refers to the adroit and plausible advocacy of a client‟s ease in court.” anti is reported in 1 Am. any knowledge which he acquires concerning the Substantive Law goes for naught. as illustrated by the Common Law Forms of Action. This Sec. 24 (2d ed. at Boston. He comes to realize the relationship between Procedural and Substantive Law. who appreciates the technical steps and maneuvers necessary to present properly his client‟s case in Court. but they still rule us from their graves.” Shipnian.(IV) It is essential to a full and comprehensive understanding of Modern Pleading and Practice. in fact. 1897). 1. cept by one adequately trained in the Art and Science of Procedure. II. on the relationship between the Modern Substantive and Ancient Remedial Law in the scheme of Forms of Action. third.2° that Substantive Rights are expressed in terms of Remedial Rights and Forms of Action. therefore. from the viewpoint of the Common Law. and in a manner destructive of the standards of the legal profession. I. St.” ~ It is necessary. 1821. The Statutes which seek to abrogate or simplify Common-Law Pleading use its terms. tuepburn. first. 1880). 28. “The importance of a study of Common-Law Pleading rests. 28 (18291. that Right and Remedy are bound together. Elendbook of Common-Law heading. C. In popular language. c. Cases and Materials on Modern Procedure and Judicial Administration. Introduetion: 1. in referring to the dependence of Eight upon Remedy. 2 11 its study. But. 4. The Importance of Procedure in the Work of the Practicing Lawyer and in the Study of Law (New York 1952). n. the categories of legal liability. In short. Tort and Property Law. Clark.” The Forms of Action at Common Law. In order to understand the progress of the law. In short. 359 (New York. by Ballantine. Vanderbilt. Special pleading. it is essential to realize that the Forms of Action are. Lecture 1. so that they cannot be studied understandingly without it. unless a lawyer is sufficiently expert in handling the procedural devices avai]able under the Law. Paul 1023). 66 (Cincinnatti. 2 (Cambridge. While the greater portion of our Modern Law School Curriculurn is devoted to a consideration of Substanfive Law. For as Justice Story so truly said: “No man ever mastered it. It was in this very connection that Sir Henry Maine observed that the rules of Substantive Law had the appearance of being “secreted in the interstices of Procedure. on the Fourth of September.. an understanding of the fundamental principles of Common-Law Pleading and PrOcedure is highly essential. he desires to become an Artisan of the Law.3~ clearly had this in mind when. Further. also. c. that every individual who desires to become a serious Student of the Law should have a full appreciation of the importance of Common-Law Pleading. It thus appears that a mastery of Adjective Law is a prerequisite to a mastery of the Law as a whole if a person hopes to become a successful lawyer. however. Maine. that there can be no true understanding of the Law except as against its Historical Background and that this history can only be fully and intelligently interpreted in the light of the Origin and Growth of Procedure.” 3° What Maine was saying was that the study of the Forms of Action is one of the richest sources of information for the student of legal development and theory. and how to conduct it to a successful conclusion. and that most of our Modern Substantive Contract. The Development of Code Pleading. 30. See. it refers to piending by Speciflc Aliegations as opposed to General Allegations. had its origin in and developed out of Procedure. St.the student acquires a working appreciation of the Historical Development of the Law. In order to do this he must be conversant with the evolutionary steps which led up to our Modern System of Procedure. to fully appreciate the significance of the Reformed Procedure and the procedural tools used for the protection of his client‟s interest. the student should constantly -bear in mind that a litigant‟s Substantive Rights ordinarily cannot be effectively sustained ex 27. and. I.Mait]and IMPORTANCE OF COMMON-LAW PLEADING Page 25 of 736 .Jur. 13. In the first place the study of Common-Law Pleading is important because through statement by Justice Story was made ía “An Address Delivered Before the Members of the Suffoll~ Bar. he declared: “The Forms of Action we have buried. A mere Mechanic of the Law may get in and out of the court. 1945). in Modern Codes the foundation ideas of pleading have not changed. 29. but often to the detriment of the client‟s interest. he must understand the fabric of the Common Law out of which they have been constructed. If.

determine the holding of the Court and formulate the Rule and Principle of the decision. 12 rolling Clerks. a knowledge of Common-Law Pleading is essential to a full and comprehensive understanding of Modern ~- Odgers. e. VII. Law Studies. the phrase “the lessor of the plaintiff” is tinderstandable only in the light of the Fiction of Ejectment. in the presence of one‟s adversary. Winfield. it is a time4ested scheme of matchless precision for separating the Issues of Fact from the Issues of Law. the opinions rendered in these cases are sometimes in language and phraseology understandable only by one versed in the Common-Law System of Procedure. and an “executed consideration” is meaningful only against the historical development of Assuinpsit out of the Tort action of Trespass on the Case Super So Assumpsit. quicken the apprehension. vol. 1952). see 2 Holdsworth.32 were necessarily formulated on the basis of the Older System. for the purpose of referring the case to the Court or the Jury. In short.. or Lat. Q. 1000). 33- 34‟ Winfleld. works. In consequence. For the story of the Language of the Pleadings. a knowledge of Procedural Law is an essential ingredient of the process by which the beginning Law Student acquires the technique of analyzing Causes of Action. Prefatory Discourses to the Speeches of Isaeus. The Chief Sources of English Legal History.. In the fourth place. See.. stated: “And. Principles of Pleading and Practice. 1058 (3d ed.3‟ But such inclusion would be clear to one acquainted with the History of Pleading.C. and invigorate the understanding. Finally. Introduction to Civil Procedure. in reference to the ntility of the study of Common-Law Pleading.But compare the statement of Street. like the roots of an equation. I (Northport. 11—12 (Cambridge. well-defined Issue of Fact or of Law.Iles-. 1 Sir William Zones.” ~ These qualities constitute the foundation of all legal investigation. particularly that Stage of it in which the Pleadings were settled in the heat of battle. it is an excellent device for extracting. also. no educational device is comparable to a course on Common-Law Pleading for the purpose of teaching the beginner how to brief a case. 31. 38. the En ilows from a knowledge of the old. e. 34 (London 1784). in an address to the American Bar Association. The Issues in these early cases. it gives the Student a valuable insight into the problem of what constitutes a Cause of Action.” - the apparent licence of the new system with that spirit of exaethess and self-restraint which Note. c. arid by a process of Oral Altercation in which the Litigants. the doctrine of quid pro quo has meaning only to one who has studied the early cases involving Debt. Ch. the true points in dispute. 1909). 1925). History of English Law 397—402 (London. I. the best masters of the art will be they who can inform In the second place a knowledge of Common-Law Procedure is essential as an aid in understanding the early English and Amen-can decisions in which Rulings on the Law are only comprehensible to the Modem Student in the light of a working knowledge of Pleading at Common Law. c. p. so long as Written Pleadings remain. The Chief Sources of English Legal History. The very term „Adjective Law‟ was first used by Bentham. 6. one called upon to consider a decision in the Year Books ~ might be struck by the inclusion of much material or discussion which had no apparent bearing upon the final result. It was not always so. the shadings between the Common-Law Forms of Action afford the student excellent practice in distinguishing one decision from and it serves “to fix the attention. Law Pleading. framed at a period of time when it was not yet certain whether the Pleadings should be English. French. 19M). IV. Thus. who declared: “To the modern mind no line of cleavage is more marked than between Substantive and Adjective law. 35 In the third plaCe. it has value as an exercise in legal logic. Second. Sir Montague Craekenthorp.” 3 Foundations of Legal Liability. London 1863). Warren. Moreover.3° Pint. 238 (1896). e. 153—154 (Cambridge. which is a necessary technique under any System of Procedure. In early stages of legal growth the two elements are inseparable. by Lewis Stnrge. Third. reduce the controversy to a single. 37. I. Reppy. give a habit of reasoning closely. the Lawyers and the Judges played leading roles. 2 -(Buffalo. I. and while they were still in their Develop2~ mental Stage. London. 10 Earv. Common 22. clear-cut.L. 1925). Page 26 of 736 . 08 (14th ed.

3° The provision therefore. in order to state a good Cause of Action. With a statement in mind of the reasons why a knowledge of Common-Law Pleading is important.Y.” which calls for explanation or interpretation. it would not prove difficult to settle the actual differences between the disputants. BASJS OF MODERN REMEDJAL LAW Sec. Practice Acts and Rules of Court.Pr. clear-cut. (8 Seld. and “The Function of Pleadings then is to ascertain with precision the matters on which the parties differ and the points on which they agree. by Lewis Sturge. and which can properly be made applicable under the ne~v system [the Code) remain in force.. to give but one example. and that the Rule under the Statutory Provision in question is the same as at Common Law. The Functions of Pleading at Common Law ate six in number and may be listed as follows: 13 (I) The first or Primary Function of Pleading is to reduce the controversy between the Parties to a single. Page 27 of 736 . (IV) To serve as an index to the respective Counsel as to the Points to be Proved at the Trial and as a Guide to the Court in Apportioning the Burden of Proof and Rebuttal as between the plaintiff and defendant.) 216. hence the principles of Common-Law Pleading necessarily remain as the great Residuary Law from which the gaps in the Code System of Procedure have been and will continue to be filled. thus preventing a relitigation of the same controversy between the same Parties at a later date. 6. well-defined Issue of Fact or of Law. 5 N. 3 FUNCTIONS OF PLEADING THE FUNCTIONS OF PLEADING AT COMMON LAW‟° 3. at Common Law or in Equity~ which are not expressly abrogated.Pleading and Practice. thus operating as an aid to the Court in admitting or rejecting offers of evidence.18 and against the background of which its every provision must be construed and understood. Suydam. Allen v. in Rochester City Bank & Lester v. If every discussion were preceded by a clear-cut settlement of 40. J. (ii) To reduce Questions of Fact to clear-cut Issues by eliminating immaterial and incidental matter. e. it may next be helpful to consider the Functions of Pleading. only its technical and archaic characteristics have been abolished by Modem Codes. thus narrowing the ease to one or more specific propositions on which the controversy turns. 38. Defenses. 67 (14th ed. Patterson.” Selden. was required to state Ultimate Facts.” Odgers. 39. because Codification at best is only partial in scope. (V) To serve as a Formal Basis for the (VI) To preserve a Record of the Controversy Litigated and to create a foundation for the Plea of Res Judicata. and thus to arrive at certain clear Issues on which both parties desire a judicial decision. Does it actually mean what it says or does it mean something else? After full consideration the Courts have found that at Common Law the Declaration.. Principles of Pleading and Practice. In making a study of Pleading at Common Law the student is not dealing with Rules which are obsolete and without intimate relation to the Existing Law. the questions in dispute. “Alt those preexisting Rules [of Pleading. has no meaning except as construed against its Common-Law Background. The fundamental principles of Common-Law Procedure still prevail. Thus. and Counter-Demands of the adversaries.Y. (How. London 1952). the Code states that “the Complaint must be stated in plain and concise language. (III) To notify the Parties and the Court of the respective Claims. 219 (1851). 7 N. THE principal reason why many ordinary controversies are utterly fruitless and inconclusive is that prior to the discussion there is no ascertainment by the contending parties of the Issues at stake. This is true because Code Pleading springs from a Common-Law Ancestry.) 476 (1852). Judgment. and not Evidentiary Facts and not Conclusions of Law.

in which case. of the Court. in which Luke. thus serving as a guide to the Court in Rulings upon Offers of Evidence. by Ballantine. Editors Introduction. in 11 (3d ed. drawn up by the Counsel of the Respective Parties. Washington. 21 Ga. but the professed aim and object of pleading. and thus the litigation is narrowed down to two or three matters which are the real questions in dispute.Rep. On the contrary they are the Formal Statements. St Paul 1923). 14). As the Pleadings define and limit the Page 28 of 736 . that is. 159. of defining the Issues over which the Parties are contending. the Production of the Issue has been not only the constant effort. by eliminating immaterial and incidental matters. 402 (1917). and narrowing the case to one or more definite propositions on which the controversy really turns.41 Pleading. ed. 509 (1789). By this process the Matters on which the Parties differ and the Points on which they agree. Thus. is achieved. C. which is a Statement in a Logical. S (3d ed.R. 679.. 9 (3d ed. Brookman. as frequently assumed in popular estimation. stated in another way. J. The Pleadings are not. by Ballantine. also. 197 SW. well-defined Issue ~ of Fact or of Law. 498. Shipman. Editor‟s Introduction. it may involve a lengthy Trial by Jury. 176 Ky. Handbook of Common Law Pleading. disclosing to the Court or the Jury trying the Cause the Matter in Dispute between the Parties. Legal Form of the Facts which constitute the Plaintiff‟s Cause of Action or the 42 Defendant‟s Ground of Defense.. e. and from the same period. and what Facts the plaintiff must Prove to sustain his Cause of Action or the defendant to establish his Defense. Of the Principles of Pleading. though disputed. the early English ease of Read c. St. Editor‟s Introduction. on which the decision of the case will turn. Paul 1923). pense in procuring evidence of Facts which the opponent does not dispute. 210 Ill. London 1952). and the Jury. or it may involve a Question of Fact. D. Shipman. Paul 1923). the propositions affirmed on one side and denied on the other. by Ballantine. “The term. 1593). 1 decided as far as possible prior to the Trial of the Facts. to Separate Issues of Law from Issues of Fact4‟ so that the Issues of Law might be 41. in the first year of Edward II (Year Book. For other definitions of the term “Pleadings. if not an earlier one. and thus the Issues over which the Parties are contending are presented for judicial determination. that is. 42- Handbook of Common law Pleading. 151 (3d Am. or. clearcut. which generally determines Issues of Fact. 66 (14th ed. are ascertained with precision. which generally decides Questions of Law.App. 6. an advocate‟s address to the Judge or Jury. The question involved may be reduced to an Issue of Law. that is. by Tyler.” See. have been developed with this end in mind. therefor. 818. BASIS OF MODERN REMEDIAL LAW Ch.” ~ on which the case may be judicially tried in the most expeditious manner.. c. 94 SE. Shipman. of „Issue‟ appears as early as the Commencement of the Year Books. “The points admitted by either side are thus extracted and distinguished from those in controversy. 3 T. By separation of Questions of Law from Questions of Fact. Jacksonville Oil Mill Co. 1 Edw.” see Brumleve „c Cronan. It is a great benefit to the Parties to know exactly what are the Facts remaining in dispute. 8. the Primary Function of Pleading. The Functions of Pleading. This was made necessary by the dual character of the Common-Law Tribunal. other many instances it would develop that there was in reality no difference of opinion. 14 Handbook of Common Law Pleading. The first or Primary Function of Pleading is to reduce the controversy between the Parties to a single. J. declared: “Pleadings are the Written Aflegations of what is affirmed on the one side or denied on the other. the Parties may be saved great trouble and ex„5• Odgers. The secotul Objective of Pleading is to reduce Questions of Fact to clear-cut Issues. in which case it may be decided by the Judge upon Argument. 44. St. of the plaintiff‟s Cause of Action or the Defendant‟s Defenses. itself. II.. at least. and the State may escape the burden and cost of supervising the litigation of Immaterial Issues. stated: “Pleadings are the statements which set out the Causes of Action and Grounds of Defence and make Issues in the Action which is to be Tried”. A Treatise on the Principles of Pleading in Civil Actions. and Smith v. 503 13917). 900 (1918). is designed to prevent the presentation of such fruitless and immaterial controversies in Courts of Law. may prove to be immaterial. Principles of Pleading and Practice In Civil Actions in the High Court of Justice.” Stephen. From the clash of assertions are disclosed the points in controversy. 100 Eng.App. II. In which Hurt. 43. Boeock vt Leet.

as such offer has no logical tendency to support the defendant‟s Plea that he struck in Self-Defense. For a detailed discussion of Notice Pleading. if A alleges that B stole his horse. in his turn. have suggested that the Parties to an Action should come into court without any Notice as to the Complaint or Answer.” to whièh the defendant interposes the following Plea: FUNCTIONS OF PLEADING “The defendant states that he is not liable on the bill.” The fourth Function of Pleading is to serve as an index to the respective Counsel as to the points to be proved at the Trial in support of the contentions of their respective clients and in Apportioning the Burden of Proof and Rebuttal as between the plaintiff and the defendant. as well for the purpose of Notifying the Defendant of the precise character of those Grounds. 53 Harv. B Pleads Self-Defense. as opposed to Notice Pleading. Defenses. or. expense would be incurred as the Parties would have to come to Trial prepared to Offer Proof on anything relating to the case. Paul 1047).flev. It is evident. § 11. c. See. Notice is essential. and A denies the striking in Self-Defense. that ing.” From the Plaintiff‟s Statement it could not be determined on the Pleadings whether he had a sufficient Cause of Action or not. p.L. Notice Pleading. arid Cross-Demands of the adversaries.. MIflar. which emphasizes the need for an accurate statement of the facts. see Clark. 187—189 (1939). the Court is in a position to Rule out the Offer of Proof. assuming their existence. if A brings Trespass for Assault and Battery. and Functions of Pleading. therefore. Introduction to Civil Procedure. 1034 (1937). pp. 169.L. 1017. does a mere General Notice 40 of the Plaintiff‟s Cause of Ac 4~. and from the Defendant‟s Plea. nor whether the Issue was One of Law or of Fact. or merely giving notice to an opponent of the claim which is being asserted. 501 (1918). the plaintiff. Thus. c. Scott. Fact Pleading came in with Code Pleading. en Notice Pleading. Sec. also.Rev.Proof. 11—14. prevailed at Common Law. as the chief Objective of Pleading was to reduce the controversy to an issue of fact or or law. Notabilia of American Civil Procedure 1887—1937. or the other legal requisites essential to liability. and B denies the Page 29 of 736 . irritated by the mischiefs incident to the abuse of technical Rules of Pleading. is entitled to know what Defense will be raised in Answer. It seems evident. who declared: “The province of the Declaration is to exhibit. History.” ~ In support of this view is the statement of Thomas. see article by Whittier. In such a situation every case would have to be considered by a Jury in order to ascertain that there was no Fact in dispute. see article by Simpson. although only one matter was in reality in dispute. I. it coUld not be detennined whether the defendant denied the acceptance of the bill. I. the First Report of her Majesty‟s Commissioners for Inquiring Into the Process. suppose the Plaintiff‟s Declaration reads as follows: “The Plaintiff Alleges that the defendant did not pay a bill of exchange for $50. if B offers Evidence that he did not strike A.4° Thus. 29 (Buffalo 1954). then.Rev. while in recent yenrs there has developed what Is known as Notice Plead- 15 tion and the Defendant‟s Ground of Defense. so also do they have a bearing upon the Admission or Rejection of Evidence. On Issue and Fact pleading. oppression and expense in a civilized state where commercial transactions are both numerous and complicated.L. reported In Reppy. that such a System would lead to fraud. serve every purpose? Thus. 48 in the Illinois case of Cook v. Some Advocates of Reform. 56-57 (Cd ed. however.. upon the Records. whether the defendant intended to set up New Matter such as fraud by Way of Answer. as of regulating his own Proofs. Handbook of the Law of Code Pleading. Practice and System of Pleading In the superior Courts of Common Law (IBM). It thus appears that the evils of giving no Notice would exist nevertheless. “the defendant is entitled to know what it is that the Plaintiff Alleges against him. Systems. If. 3 Issue Pleading. The third Objective of Pleading is to notify the Parties themselves and the Tribunal which is to decide between them of the itspective Claims. 3. And for a suggestion as to how to resolve the conflict between the various views. A Possible Solution of the Pleading Problem. 31 Harv. the grounds of the Plaintiff‟s Cause of Action. § 3.00. 50 Harv. St. the issue presented is: Did B strike in Self-Defense? Now. rendered. I eral Allegation by Proof that B took any and Subject Matter. the Prosecution of Several Actions Proceedings the Common Law secured in upon Several Causes of Action.L. 02 U. 1952). A knows that he may support his Gen 47. 3111-lar. The Need of Pleading Reform In Illinois. (Farrington & Smith v. (3) That the Court may know what the Subject Matter of the dispute is. in order to be free from attack as go. nor is there any Principle which precludes. so that it may restrict the debate within just limits and discern what Rules of Law arc applicable. (4) That it may ever after appear what Subject Matter was then adjudicated. that the Judgment in the First Suit was a with a white fore-front foot.) But it is entire claims only which camiot tions. the Proof parts of such a claim.L. As to Functions of Criminal Pleading and the certainty and precision required. 542. by Lewis Sturge. and finally the Judgment on the Ver. People. Ballantine. see United States v. be measured by the a charge of taking any horse.Q. c. 15 (1917). (2) That each party may have notice of what is to be tried. v.Inst. Charge. and a Judgin the Originai Writ and Declaration. Bays: “The Prin horse. 104 (1921). fly. 137 [136] (1819). defall on A as he has affirmed that B took his cided under the Code. The lug either upon a Contract or from a Wrong. Strong.Crim. flail‟s Massachusetts Practice (Boston 1851). 36 NE.Y. Crulkshank. ciple is settled beyond dispute that a Judgment con The fifth Purpose of Pleading is to serve Cause of Action stated in the Pleadings on which it as a Formal Basis for the Judgment. It results from this Principle. And it follows logically that the Burden of Proof would 51. London. By and indivisible ia their nature. whether the suit embraces the whole cludes the Rights of the Parties in respect to the ning with the Original Writ. while B‟ s Defense would be simplified Procedure in the same manner as at Common by being limited to Defense against taking Law. 337—361 (1917). Verdict must find in accord with the same Payne. which the Nature of the Case admits of. and If several suits be brought for different or only part of the demand constituting the cause in elaborated and Consistent Form. In Secor v.Allegation. so that be may come prepared with the necessary proof. so far as he admits or denies anything. The the Various Pleadings at each Stage of theRule does not prevent. 16 N. those which are single ing beyond the Scope of the Pleadings. effectual influ~ enccs. 64-1 (1835). 0. he would have Bar to the Plaintiff‟s Second Action. 4~’ 6 Ill. & Criminology. 548. to tell the truth. Stevens v.. The Modernization of Criminal Procedure. 3. Co. 15 Johns.16 Id. The Cause of Ac‟ this requirement of correspondence between tion in the different suits must he the same. The holder of sevPleadings what we refer to in Page 30 of 736 . 432 L481] (1818). 1. 13 Id. of IILLJ3uII. See. 49. 344—367 (1920). Ohio & 31. 663. Millar. 989 (1894). it was held by the Court horse. the pendeney of the first may at the Trial must correspond to the Charge be Pleaded in Abatement of the others. so that no further or other dispute should be permitted to arise concerning it. No. Guernsey v. whereas if A had named a black divided within this rule. let us supposeof action. The Massachusetts Commissioners of 1851 state the purposes of Civil Pleading as follows: “(I) that each party may be under the most 16 BASIS OF MODERN REMEDIAL LAW Ch.Am. (1 Oilman) 333 (1844). 23 LEd. Lockwood.Crim. 65 (14th ed. 149 Xli. S JAminst. Philips v. aristo A in the sum of five hundred dollars. 8 Wen diet must be made subject to the same limita-dell 492 (1832). Begin. canDeclaration must contain the same Charge not be divided and made the subject of several suits. 554 (1858). Sturgis.S. 11 J. and may save the expense and trouble of what is not necessary.5‟ one Specific horse. The Reform of Criminal Pleading In Illinois. 1 U. the ment upon the merits In either wifi be available as a Bar In the other suits. Principles of Pleading and Practice. And been limited to Proof of that Particular this same rule applies under the Reformed horse.L.” 6 Mass. Odgers. that an entire claim. whereas before he was The claim of the Law of Pleading to be a under necessity of being prepared to defend Science must. also. and what is asserted or denied concerning it. and the there is a Charge therein that B is indebted Rule is fully established. Eerick. & Criminology. 538 (1875). therefore.

Y. practical and systematic presentation of the precise Questions of Law and Fact involvéd to the Tribunal which is to decide them. each. of Action might be united in a Single Suit. coherence and emphasis. therefore. and is to preserve a Record of the Controversy all demands. (N. It makes no difference that the Causes 15 Johns.English com. so that the Issues of Law may be determined as far as possible in advance of the Trial of the Facts. for the prevention of Same Parties and the Same Subject Matter. 883 (1927). in the early New York case of Farring. 4 50. thus preventing a relitigation of the same controversy between the same parties at a later date. 2 AIa. the principal purpose of the Rules of Pleading has been to compel each Page 31 of 736 DEVELOPMENT OF SUBSTANTIVE LAW . to which B One Action or Two. be enumerated as follows: (1) To reduce the controversy between the Parties to a single. (4) To serve as an index to the respective Counsel as to the Points to be Proved at the Trial and as a Guide to the Court in Apportioning the Burden of Proof and Rebuttal as between the plaintiff and defendant. thus operating as an aid to the Court in Admitting or Rejecting Offers of Evidence. if sustained. of whatever nature.Rev.consolidation of the Actions. Splitting Cause of Action. that is.In general. (3) To notify the Parties themselves and the Deciding Tribunal of the respective Claims. Colvin.5° where A sued B for the con. on the Splitting of Causes of Action see: version of three bed quilts.eral Promissory Notes may maintain an action on position as unity. Pleaded. 42 covered. The various and possible Functions of Pleading may. which. clear-cut well-defined Issue of Fact or of Law.) 431 (1818). 36 Yale L. Fair Notice to the Parties and the accurate. It thus becomes clear that historically. separately. (2) To reduce Questions of Fact to clear-cut Issues by eliminating immaterial and incidental matters. and narrowing the case to one or more specific propositions on which the controversy really turns. 75 (1949). Former Recovery for the Same Act Note: Pleading—Splitting Causes of Action—Counter See.J. Joinder and Splitting of Causes of Action In Nebraska. (6) To preserve a Record of the Controversy Litigated and to create a foundation for a Plea of Res Judicata.—a bed and three Articles: Clineburg. a party upon whose person or property suc The sixth and Final Function of Pleadingmay bring a separate suit for every trespass. except that in proper cases. Injury to Persons and Property— tion for conversion of the bed.t.Bu1L 156 (1940). the operates to prevent the relitigation of the Right of the Party In whose favor they exist to same controversy. Payne. and to separate Issues of Law from Issues of Fact. may be sued upon cessive distinct Trespasses have been committed Litigated. provided it involves the separate suits is not affected by that circnmstancc. which serves as a foundation for a plea of Res Judicata.L.. 17 extent of its adaptation of its Rules to the accomplishment of its Main Functions. arising out of separate and distinct transactions. after which he brought a second ac-(1946). 26 Neb. (5) To serve as a Formal Basis for the Judgment.Rev. bed quilts having been taken away—and re. MeNish.” ton v. vexation and oppression.I. Defenses and CounterDemands of the Adversaries. the Court will enforce a Thus. 10 Ncb. claim In Court of Limited JurIsdiction.

” Robinson. not by a legal right. Whittier. and discovers A on the knoll. who owns the knoll? B. I think I shall take possession. 155 (Boston.” exclaims A. and liabilities first defined and thereafter Courts established to enforce those rights and liabilities. In short. Now. that being at the moment the only Law in effect on the island. the child of a third party. Courts being organized to handle a series of specific cases. declares: “I like this knoll too. If this be true. this end being defeated on occasion by resort to technical procedural devices which had outgrown their days of usefulness. no you won‟t. Without going into the evolutionary developments involved. By what right? Not by a moral right. the Law grew up in exactly the opposite way. because in the absence of a Court in which a remedy couid be sought. with the Courts to 53 enforce them to be established thereafter. The people crowd together. An-tying there. and takes possession. C) hits D over the head with a club. by reason of his strong right arm.” “Oh. “Oh. deserted island. no such right yet existed.ition of rights. if not before. thence to prohibit wrongs. 4 Iil. he surveys the prospect with satisfaction equal to that of A. After this development. how did it come about? Let us assume that A and B are shipwrecked and land on the proverbial uninhabited. In reality B now owns the knoll by right of the strong arm. the Substantive Law Defines rights and liabilities and the Procedural Law furnishes the ways and means of enforcing those rights and liabilities. V. quickly recovering from the shock. 1 Page 32 of 736 . and thence proceed to prescribe duties. 174. where the ground is level and the view good. and it is inexpedient to postpone this essential preliminary to the day of Trial. A. UNDER Anglo-American law. “This knoll belongs to me. no you won‟t.” retorts B. the great Body of our Modern Contract. and is the source of the Principal Rules of Pleading. and children. yes I will. I think I shall take it. works his way up to a nearby knoll. It is so under the Modern English Pleading. and says: “I like this place. will invariably be answered by a statement that rights and liabilities would first be defined. Some time later. and later we find that other members have joined the society of A and B—men. It has not always been true that Common-Law Pleading has accomplished the objective of reducing all cas es to definite Issues. Property and Tort Substantive Law having had its Origin in and Developed out of Procedure. the blow glances off D‟ s head and strikes E. But in what order did this development take place? Were rights Judge Gilbert and 1lliiioi~ Pleading lie-form. Immediately there is great excitement in the community. our rights and liabilities as defined by Substantive Law. as a matter of historical knowledge. 1000). or were Courts first set up and thereafter rights and liabilities defined? This question. THE DEVELOPMENT OF SUBSTANTIVE LAW OUT OF PROCEDURE 4. whereupon B. 5~. women. 176—178 (1909). by right of might.” Who owns that knoll? A owns it by reason of having first acquired possession. this business of their hitting one another over the Ch.” “Oh. would normally first define Rights and Liabilities and thereafter set up a System of Courts to enforce those Rights and Liabilities. B pulls himself together.person to state the essential elements of his Cairn or Defense in order to arrive at an Issue.Rcv. if asked of a Beginning Student of the Law. abandoning further argument. § 5. 18 “A System of Laws promulgated by a Lawgiver undoubtedly commence with a defi. as A preceded him in possession in point of time. the decisions of which gradually developed theories of rights and liabilities. and finally to provide legal remedies. if authorized to create an entirely New System of Law. whereas. had their origin in and developed out of Procedural Law. after pondering over the situation. let us say that time moves on. Elements of American Jurisprudence. 52. strikes A over the head with a club. the Issue-Raising Function far overshadows the Notice-Giving One. shakes the water off. The case must be analyzed and reduced to Issues at the Trial. The Beginning Student.52 But in both Common-Law and Code Pleading.L. e..” bristles A. and someone is heard to say: “As long as A and B were the only inhabitants on this island. and then. As a result he may also be said to have acquired a moral but not a legal right to retain possession. BASIS OF MODERN REMEDIAL LAW In fact the Law grew up in exactly the opposite way.

Equity and Probate Law. Before any decision was rendered the most that could be said in favor of D and F was that in the view of the group. let us assume that the Court. its most esteemed religious adviser. the concepts of right and duty. if B does violate A‟s right not to be struck and his own duty not to strike.M of wrong and liability. duty. are merely different sides of the same shield. Let us now as- Sec. or its greatest military leader. who would then hear both sides of the con troversy and render a decision. if A has such a right. out of the process by which a myriad of single instances. thus. that the Substantive Law right of A. that is. wrong and liability. the group chose its fastest runner. ten hides to go to the injured Parties. At the moment of decision. their moral right not to be interfered with had been violated. in which the B‟s and C‟ s were fined for having struck someone. This process not only produced a body of Substantive Contract. thus. The Nature and Function of Pleading at Common Law may be better understood when viewed in its relationship to the Other Systems of Procedure which developed prior to. including Equity and Code Pleading. he is hailed before a Court and punished. but it also exercised. as yet they had no legal rights as they were still without a remedy. who has now become a Judge. which in turn developed the five great Systems of Administrative. or even subsequent to it. its best medicine man. fines C twenty hides.” But “What can we do” exclaimed the others! At this point someone suggested that the group shouid select a leader. were presented to and decided by a Court. If the rights violated involved a breach of duty to the community or state. when B strikes A over the head with a club. D. it may be well to consider its relation to the other Systems of Procedure which developed prior to. its wisest counselor. and E before the newly created tribunal. the moral right having been changed into a legal right through the acquisition of a legal remedy. In turn D and E were required to tell their story. Then the group took C. through Page 33 of 736 . Accordingly. Common. Relation to Equity Pleading EQUITY Pleading was the System of Pleading which was developed by the Courts of Equity in England. of specific factual situations. we must do something to control such actions. it must be because A had a right not to be struck. was the Court or Tribunal created. or even subsequent to it. I) and F for the first time had acquired a legal right not to be struck. 19 RELATION OF COMMON-LAW PLEADING TO OTHER SYSTEMS 5. After hearing both sides of the controversy. escorted him to the edge of the forest. Thus. the accused was said to be guilty of a criminal wrong whereas if the rights violated were concerned with breaches of duties as between individuals of the group or society. contemporaneous with. B commits a wrong for which he may be held liable. had their Origin in and Developed out of Procedure. the wiser members of the group. But at this stage of the discussion. hail the individuals before that leader. Property and Tort Law. as well as Pleading under the New Federal Rules of Civil Procedure. D. as we shall see. a profound effect upon the Form of our Judicial Organization. Thus. but now that there are others here. ten hides to go to the Community. the relationship of which to Common-Law Pleading will now be considered. and C was permitted to present his side. did it prepare the way for transforming moral into legal rights. contemporaneous with. and E not to be struck. the important point to be observed in the foregoing account is that these primitive legal concepts of right.head was their own affair. 5 sume further that after two or three similar episodes of this kind. as well as Pleading under the New Federal Rules of Civil Procedure. These include Equity and Code Pleading. and set him up on a stump to decide the controversy. Admiralty. presided over by the chosen leader. began to reason somewhat as follows: If. while wending their way home from the Court. came into existence only upon the pronouncement of Judgement by the Tribunal. IN order to give a better perspective of the Nature and Function of Common-Law Pleading as a factor in AngloSaxon Law. did the group take its first step in the Development of the Law. the accused were said to be guilty of a civil wrong. then B must be under a duty not to violate it.

in Equity. at Common Law. but it actually ordered the defendant to do something in recognition of that established right on peril of being punished for contempt for failure so to do. the Chancellor being free to disregard it in his discretion. after the Statute. consisting of the Chancellor only. at Common Law. such finding was not binding on the Court. the plaintiff was compelled to sue out an Execution on the Judgment.~ the only Method of Review was after Verdict and before Judgment. it could not be split. it becomes readily apparent that when the Court of Equity undertook to settle matters of conscience in dispute between private Parties. at Law. if the Error of Law was Apparent on the Face of the Record. which decided Questions of Fact. With these distinctions between Common Law and Equity Procedure in mind. a plaintiff. whereas. and even Conclusions of Law. as opposed to the Equity Court. certain differences between the Common Law and Equity Systems of Procedure developed. This was due to the dual character of the Common-Law Court. Evidentiary Facts. the Decree not only determined the matter of right between the Parties. a Judgment merely determined the matter of right between the Parties. its finding on the Facts was binding on the Court. In the first place. so as to apportion the liability among the defendants. the Pleadings at Common Law were required to reduce the controversy to a single. BASIS OF MODERN REMEDIAL LAW whereas. 20 See Langdell. and largely as a result of the first difference between the Two Systems. and RELATION OF PLEADING TO OTHER SYSTEMS 54. Fourthly. influenced by Page 34 of 736 . 55 (1837). which had its roots in the Ro man Law. at Common Law. both Questions of Law and Questions of Fact were Reviewable on Equitable Appeal. Thirdly. who was a trained Lawyer. whereas. 1 the Jury. and if the Jury returned a Verdict in favor of such Party. Sixthly. 1 Harv. well-defined Issue of Fact or of Law. whereas. whereas. Secondly. in Equity. the Jury found in favor of a Party on the Facts. which consisted of the Judge. in Equity the Decree could be split up and given against one or all of the defendants.the King‟s exercise of a portion of his Judicial Prerogative in cases involving matters of conscience. prior to the Statute of Westminster II (1285) . hence it is not surprising to find that Both Systems failed to provide a Jury for the Trial of Facts. a Party was frequently entitled to Trial by Jury as a matter of right. it was Reviewable by Writ of Error. Ch. by a Motion for a New Trial. perchance. Fifthly. and if.Lj3ev. without the necessity of further action. but. The King‟s authority was in the beginning handled through his Chancellor who was a Churchman trained in the Canon or Ecclesiastical Law. only Questions of Law were ordinarily open to Appellate Review. he might plead Ultimate Facts. in order to state a cause of action was required to state Ultimate Facts. capable of handling Complicated Issues of Both Law and Fact. and not Evidentiary Facts or Conclusions of Law. who normally decided Questions of Law. whereas. but was one which occurred at the Trial. as the Chancellor could unravel the Issues in spite of the resulting confusion. a Judgment had to be rendered in favor of or against all the defendants. at Law. such Errors could be reached by a Bifi of Exceptions. at Common Law. clear-cut. and if the defendant was not goaded into action by the mere moral suasion of the Judgment. it did not order the defendant to do anything. thus allowing for a much more flexible apportionment of liability. A Brief Survey of Equity Jurisdiction. in Equity. at Common Law only those Parties who had an interest in the right being litigated could be joined as plaintiffs and only those Parties who were subject to a joint liability could be joined as defendants. there could be as many Issues of Law or of Fact as the Pleaders desired. was only advisory in its effect. a Party was entitled to Trial by Jury only in the discretion of the Chancellor. the procedure for the joinder of parties plaintiff and defendant was much more flexible. in Equity. whereas in Equity. in Equity. Seventhly. if it was Not Apparent on the Face of the Record. As a result of this characteristic.

as well as the legal arguments and conclusions. while Issues of Law were to be passed on by the Court. along with the Issuable Facts •which constituted the Equity of the Eill. which adopted the Civil Law System of Pleadings. the Charge. However clearly substantive obligations and rights may be defined in any System of Law. Boston. as at Common Law. the Issue in dispute was placed in such doubt that the Scope of the Evidence was so broadened as frequently to permit the introduction of matter wholly foreign to the real controversy. and the defendant. the plaintiff followed no set Form of Action. Common Law Pleading. Relation to Code Pleading THE relationship between the Common Law and Code Systems as to the Structure of Pleadings has been largely obscured on the one hand by the Procedural Reformers who. permitting loose. 21 posed to a “Declaration at Law”. which contained a Statement of the Plaintiff‟s Case for Relief. which was designed to frame a certain Issue of Fact for Trial by twelve men. c. who was trained in the art of sifting from the complicated statements the determinative Issues. the forensic Altercations between the Parties might be carried to an unlimited extent. 5 Ethv.5° On this very point of the theory of Law and Evidence. Remedies and Remedial Eights by the Civil Action.the Civil Law background of the Chancellor. 525 (4th ed. the Narrative. at Law. as an incident of their objectives. however. which anticipated and attempted to refute the Defenses of the defendant. upon the new light given him by the defendant. In framing his statement of a cause of action in what was called a “Bill in Equity” as op 5~. and which the plaintiff must prove to obtain the Relief Prayed for. and not as in Equity. in Equity. the plaintiff filed a Replication as a mere Matter of Form to place the Answer in Issue. Issues of Fact were to be decided by a Jury. avoiding the Technical Rules of Pleading as they existed at Common Law. What really happened was that each Party stated all the Facts in One Pleading. RELATION OF PLEADING TO OTHER SYSTEMS used to probe the defendant‟s conscience and Bogle. however. In practice. admitting that which was proper. Code Remedies. and the Interrogative. 1004). the Replication was actually sometimes incorporated in the Bill. and the defendant thereupon Rejoined with New Matter of Defense or Excuse along with his Answer. by Page 35 of 736 . extract-ed from the Pleadings by the Court. The General Principles o~ Pleading. IH. as well as Conclusions. the plaintiff might Amend his Bill to anticipate Defenses. Under the Common-Law System of reducing controversies to a single Issue of Fact. was permitted to make a New Answer to the Amended Bill. and rejecting that which was improper. but proceeded upon the board equities involved in the controversy. which properly should have been presented in the Briefs of Counsel. •though properly belonging to a Subsequent Stage of Pleading. In theory. whereas. the Court could Rule accurately upon Offers of Evidence. Section Third. which was to extract from him Admissions Under Oath in his Answer. Pomeroy. that the Bill and Answer were generally framed so as to include the evidence by which each Party sought to sustain his position or to defeat that of his Adversary. there can be no security or freedom for the individual when judicially investigated. it naturally adopted the Civil Law Mode of Procedure. mingling both Questions of Féct and of Law. avoided this pitfall by indicating the character of and the limitations upon the evidence to be admitted. have played SC. the Pleadings in Equity did not ordinarily go beyond the Replication Stage. After Answer filed. and Both Types of Issues were framed by the Parties. in Equity. and stated the Facts at large. thus permitting the plaintiff and defendant through Alternate Allegations to frame Issues of Law or of Fact upon which the Court could base a Decree. since they were both to be decided by the Chancellor. there being no need to separate them on the Record as at Law. 13 Sec. detailed Statements of Both Law and Fact. whereas. The Bill in Equity therefore consisted of three parts. It will be observed. and frequently not beyond the Answer. therefore. I. Thereafter. in turn. and then these were dealt with as if stated in a regular series of Affirmative Pleadings in proper order. as at Common Law. Common-Law Pleading and Procedure was vastly superior to the Civil Law and to the Procedure in Equity. Thus. if competent evidence is rejected and incompetent evidence is admitted.

c. in a Complaint under the Code. Muser v. A Treatise Upon the Law of Pleading Under the Codes of Civil Procedure.code Rules of the Common-Law Pleading. 5 23 fact. Robertson. observed. which literally springs from its Join. a System having no relation to existing law. 500 (3d ed. Allegations by way of Recital. 7 N. 64 NC. •2. Its Theory and Practice 488 (Chicago 1905). effective on July 1.Laws 1848. ~t See Ch. Patterson. the Century following the Adoption of the Code of Procedure of New York in 1848. Argumentativeness. would narrate her grievances. it would mean that the plaintiff. Sec. The rules of pleading at Common Law have not been abrogated by the Code of Civil Procedure.5° To one not trained in the Common Law this means a statement of “facts. See. 1911). to one trained in the Common Law. Certainty. it is in fact the direct Lineal Ancestor or Parent of Code Pleading. Rules Governing the Statement. Henry mv. and not the Evidence of Facts and not Conclusions 6 of Law. 7 Yale Li. and Pleading Evidence. therefore. 771 (1870). in trouble for the first time. At best the Codification of Pleading is only partial. N. But in each instance the source of such Rule under the Code is Common-Law Pleading. St.Y. 00.Y. ~ 11 (Los Angeles and Chicago. or Immaterial or Irrelevant Matters. Common-Law Pleading has not been abolished. 199 (1808). or who have not taken the time and patience required to understand and appreciate Pleading at Common Law. or framed by analogy in the application of the same principle. Conclusions of Law. Matters Judicially Noticed. Dunnel. So. Semonian. who have not had the ability. with its actual provisions interpretable only against the Older System. Paul. The essential principles still remain.° stated Rules covering presumptions of Fact. “just as any old woman. 197.Y. XIII. he need have no fear of being thrown out of Court on Demurrer because of some Formal or Substantive Defect Page 36 of 736 RELATION OF PLEADING TO OTHER SYSTEMS .22 BASIS OF MODERN REMEDIAL LAW down the Advantages of Adjective Common Law and played up the alleged Superior Qualities of Code Procedure. ‟ 2 Bliss. 707. c. Code Pleading: The Aid of the Earlier Systems. 682 (1907). Shipman. as pointed out in the leading New York case of Allen v.” as Charles O‟Connor. Anticipating Defenses. 1894. Mims. But speaking of the point of relationship. In 69. 40 Cob. Solomon v. 17 F. of Civil Procedure. 31 Minn. in order to state a Cause of Action. 90 P. 17 NW. in slightly different phraseology. Directness. Procedure. Minnesota Pleading. I 340 (1883).57 In fact. the distinguished New York Lawyer and Pleader. or the defendant. Prolixity. each Rule is in effect merely a restatement. that one can only come to full apprehension of Code Pleading through the study of Common-Law Pleading. by Johnson. ~ 174—215 53. Minneapolis 1899).~ has been one in which the Common-Law Rules have been read back into the apparently clear and simple provisions of the Reformed Procedure. in his famous work on Code Pleading. and on the other. 269. c. Consistency. To illustrate this point. 205. § 9 1 Standard Encyclopedia of Procedure. Co. frames his Allegations of Fact in a manner to meet with the requirements of Stating a Cause of Action or Defense at Common Law. (1st ed. let us take the Common Code provision that the Complaint must state facts in “plain and concise” language. Bliss. Vinson. and Obscurity. and Alternative or Hypothetical Pleading. as to the Rules governing such matters as Duplicity. § 451. N. it still survives as the basis of all legal investigation. likewise. are rules of logic not abolished by the North Carolina Code. it may be said that if a Lawyer. should state the Ultimate Facts. Cl. by the members of the Teaching Profession. as to Materiality. 379. I. it is clear that there are few Rules Regulating the Substance of Pleading under Modern Codes and Practice Acts which have not been directly borrowed from the Common Law.~‟SC and whipped into some semblance of order by use of a Form Book. Certainty. of the Rule as developed at Common Law. 1894). Hughes. as many have assumed. It becomes clear. express statutory provisions aside. (1883). in order to state a Defense. Introduction. Code Pleading is not. the unadulterated truth being that such provisions had no legal content except as expounded against the appropriate Common Law Procedural Background. also. 476 (1852). v. leaving wide gaps in the System of Remedial Law to be filled in by Common-Law Pleading. Crump v.

28 V. by the Act of June his Pleadings. the American Bar Association concluded that Legislative Control of Practice was highly inefficient and that the Federal Conformity Act had produced no Real Conformity between State and Federal Practice. which more or less placed procedure in a legislative strait-jacket. 723e. Let the Common-Law Rules be mastered. the Rules of Civil Procedure as Shipman. and the work under the Codes will prove easy and simple. to present his case in due Form -of Law. fl 723b. were founded on the fundamental principles of Common-Law Procedure. as well where a Code is in force as where the old Common-Law Forms are still adhered to. 200 (1898). the prophetic words of Professor Thomas M. C. leaving little room for Page 37 of 736 BASIS OF MODERN REMEDIAL LAW . The Act further provided that the Court might “unite the General Rules prescribed by it for Cases in Equity with those in Actions at Law so as to secure One Form of Civil Action and Procedure for both. *1. as previously indicated. never having accustomed himself to a strict and logical presentation of the precise Facts which constitute the Legal Cause of Action or the Legal Defense. the control of Pleading and Practice by Rule of Court gives a flexibility in the application of the Procedural Law and in its adaptation to any need for change growing out of new or unforeseen conditions. is better prepared to draw a Pleading that will stand the test on Demurrer than the man who.S. is in danger of stating so much or so little.C. 205 (1898). 65. in referring to the relation of the New to the Older System. 28 U.O. Pleadings. undertakes to tell his story to the Court as he might tell it to a neighbor. 43. without that training.A. Any expectation which may have existed that the Code was to banish technicality. Quoting Professor Cooley. under the New System in the Federal Courts and as adopted in Several States. 28 by the Seventh Amendment to the Constitution was preserved. and that the Lawyer who has learned to state his case in a logical manner after the Rules laid down by Stephen and Gould. 2. 197. in coming to the New Practice by the Old Road..”°6 The Rules as formuJated under this Act did not modify in any way the substantive rights of litigants. 7 Yale Li. when. Cooley seem as true today as when originaijy written. { 723e. for the District Courts of the United States and for the Courts of the District of Columbia. There are. as opposed to the Older System of Code Pleading. it is clear that 04. as to leave his rights in doubt on his own showing. its friends must confess that there is something more than Form in the Old System of Plead ing.S. but who. fi 1. 1064. which. After much agitation and much backing and filling. 197.~ Congress gave the Supreme Court power “to prescribe. has not been realized.A. however. and promulgated thereunder by the Supreme Court in 1938.A. without legal training.63 Indeed.S. 48 Stat 1064. First. A -careful study of these works is the very best preparation for the Pleader. i934. Relation to the New Federal Rules of Civil Procedure TOWARD the close of the Nineteenth Century.” 67 The right of Trial by Jury as at Common Law and decl?. and Motions.” 04 . 851. Il. and the Practice and Procedure in Civil Actions at Law. From the nature and character of the provisions of the Act of 1934. After a trial of the Code System for many years. the Forms of Process. 48 Stat. he declared: “The works of Common Law Pleading have not been superseded by the New Codes which have been introduced. 24 Ch. In this situation the Association placed its influence behind a bill in Congress which provided for turning the Federal Rule-Making Power over to the Supreme Court of the United States. two thief differences. and it will speedily be seen that no time has been lost or labor wasted. by General Rules. Writs. *2. 7 Yale Li. 1 in scope and content they were patterned after the provisions of our various State Codes and Practice Acts.C. or -of presenting the Facts so inaccurately. Code Pleading: The Aid of the Earlier Systems. { 723b. Shlpman. and substitute such simplicity that any man of common un~erstanding was to be competent. 66. Code Pleading: The Aid of the Earlier Systems. 48 Stat 1064..

§ 71. as opposed to the Code Method of Commencing an Action by an Individual or an Attorney serving a Summons and Complaint upon the defendant. In 1938.Y. 5. Second. TIlE STATUS OF COMMON-LAW PLEADING UNDER TIlE CODES Acts and Federal Rules of Civil Procedure. STATUS UNDER THE CODES 2 stitution of One Form of Action in place of the Eleven Common-Law Forms of Action~ In addition. 50. the Commission formulated and reported a Code which was passed on April 12.” ~0 Under the directing genius of David Dudley Field. simplify. the New York Civil Practice Act contained some 1578 Sections.Laws 1848. 6 6.‟3 and that the more liberal provisions of Equity Procedure should govern Joinder of Parties. it may be added that the spirit and tendency of the New System of Procedure as represented by the Federal Rules of Civil Procedure. The Rules of Court States. Practice Sec.development to meet changing social conditions. when a comparison was made between the New Federal Rules of Civil Procedure and the New York Code. reform.Laws 1847. attempts to simplify and reduce the number of provisions regulating Pleading did not meet with success. and as regulated by the Judges. in favor of what was hoped would turn out to be a Blended System of Procedure. 6L Art. § S. Separate Courts of Law and Equity were established. so far as the same shall by them be deemed practicable. The Quasi Common-Law States. 24. In theory at least Common-Law Pleading was abolished by our Modern Codes. as is evidenced. Civil Law States. by the provision that all Actions must be instituted through a Clerk of a Court and by Authority of a Court. and for the abandonment of all Latin and other foreign tongues. under the Codes.~1 which has served as the source of most of our Modern Procedural Reform. according to Professor Pomeroy. 370. was the sub68. as the Code of Procedure. the Court of Chancery was abolished. 1848.~ and a New Court having General Jurisdiction over Law and Equity was created and the Legislature was directed to provide for the appointment of Three Commissioners “to revise. Supplemented by 301 Rules of Civil Practice. By the New York Constitution of 1846. as at Common Law. e. But even after a Century of Development under the Codes we still find that Common-Law Pleading survives in fact or in theory. it appeared that it took only 86 Federal Rules to cover substantially the area occupied by 1100 of the 1578 sections of the Civil Practice Act and 133 of the 301 New York Rules of Civil Practice. The greatest single achievement of the Code. The Common-Law States. and abridge” the Practice and Pleadings of the Courts of Record 9 of the State. and became operative on July 1. is in the direction of the Common Law. to give but a single example.N.Y. vi. the states fall into five groups: The Code States. operating under a Formless Action to be known as a Civil Action. in the following year the State Legislature instructed the Commissioners “to provide for the abolition of the present Forms of Actions and Pleadings in cases at Common Law. fl. C. 1848. and Page 38 of 736 . The Code also provided the Pleadings should state the Facts in plain and concise language. and of any Form and Proceeding not necessary to ascertain or preserve the Rights of the Parties. And finally. for a Uniform Course of Proceeding in all Cases whether of Legal or Equitable Cognizance. IN the early part of the Nineteenth Century the influence of Bentham began to be felt in America. which was in the nature of an 25 Action on the Case. On the basis of the degree of Common-Law Pleading which still prevails. For example. N.‟ In response to this direction. Art xiv.

Within a quarter of a century after the adoption of the New York Code of Procedure in 1848.Common-Law. primarily according to the Common-Law Rules. 5 5. has been only partially effective.Ilandbook of the Law of code Pleading. then in force in twenty-nine states. Carried „71. The Quasi Common-Law States IN these States the Formal Distinction between Law and Equity has been continued at least in theory. the States were roughly lined up in Four Groups. although in practice it has been weakened by Statutes abolishing the distinctions between Trespass and Trespass on the Case. After 1938. But it should be remembered that there is a far greater similarity in the essential principles of Pleading at Common Law. 13. The Essential Elements of Causes of Action which must be Pleaded are not changed by the Codes. in 1947. two territories. into New York Civil Practice Law and Rules.” is meant those States in which the Pleading is 19. Boston. the District of Columbia.provided for the rendition of Judgments against one or more Parties according to the particular interest of the Parties involved. it still remains true that the Movement for Reform.” some Form of Code Procedure was. but based on a combination of the better features of the Common-Law and Equity Procedural Systems. according to Clark. The advantage of Regulating Procedure by Rule of Court as opposed to Legislative Enactment is that of greater flexibility in making changes as the social need therefor arises. and is oftentimes influenced by political considerations. Code Remedies. whose Pleading and Practice is generaily. The Code States IN the Code States. and in the Federal Courts.. Paul. and. ~. Usually in Jurisdictions of tins character Equitable Defenses are permitted in Law Actions. which took definite shape In 1848. and under the Reformed Code of Procedure than is generally realized. Prior to the adoption of the New Federal Rules of Civil Procedure in 1938. St. So. Re~u1ated by the Legislature. Code and Civil Law States. I. The same Rules apply to both Law and Equity Cases. which may be dilatory in taking action. by Bogle. Characteristic of the Procedure of the States which fall into this Group is the retention of the Forms of Actions and the Rules of Common-Law Pleading under a Court System that still calls for Separate Actions at Law and Suits in Equity. the Rules of Court States. c. Rules of Court States 26 THESE states are distinguished front the Code States. even at this late date. 25 (2d ed. without the necessity of each time referring the matter to a Legislative Body. the Practice in these Separate Courts has from time to time been modified by Local Practice Acts. there may be added another Group. usually framed by or under the authority of the Court of Highest Jurisdiction-. i. Even so. originally largely patterned „after the New York Code of Procedure. being classified as CommonLaw. if not entirely. Abolition of the Distinctions Between Actions at Law and Suits In Equity. And the Rules as to the manner of making Allegations of the respective contentions of the Parties still have much in common. Quasi. 15 (4th ed. the Code was adopted in twenty-four States. Since the promulgation of the New Federal Rules of Civil Page 39 of 736 . 1947). i‟ he Common-Law States BY the phrase “Common-Law States. Rule 3014 (1968). and of all the Common Law Forms of Action. in that their Procedure is Reg BASIS OF MODERN REMEDIAL LAW Ch. the Systems of Pleading and Practice are Statutory. as Unwritten Law or in the Form of Statutory Enactment of the Common Law. in Equity. or combining the Forms of Actions in the two divisions of Tort arid Contract.---the Supreme Court. I ulated by Rules of Court. Perhaps a brief word concerning each type of Jurisdiction may be helpful. 1904). 10.

but it certainly is not possible to abolish the distinction between them. are five in number: 27 (1) The necessity of forming clear and exact issues. Gou]et v. met with a cold reception. 186 (1860). how have the codes been received? The object was to blend Law and Equity into a Uniform Mode of Procedure. - MODERN PROCEDURE UNDER CODES. 406. 87 S. but they cannot make Trial by Jury and Trial by the Court the same thing. The Code Action. 1 15. treatment which the infant code received from the New York Judges Is matter of history. but for the restraints of the Constitution. 225.‟° Selden.Dec. They had been bred under the Common-Law Rules of Pleading and taught to regard that System as the perfection of logic. Civil Law States In this group the Systems of Pleading were originally based upon the Civil as opposed to the Common Law. 88 (St. In some States.Y. In some Codes there were also provisions liberalizing the law controlling Joinder of Parties and Joinder of Causes of Action. This was to be accomplished by abolition of the Forms of Action and the Distinction between Law and Equity. Handbook of the Law of Code Pleading. or reclassify the classes to which they apply. Winslow of Wisconsin. and they viewed with suspicion a system which was heralded as so simple that every man would be able to draw his own Pleadings. 493. e.Y. 99 N. referring to the fact that Certain Actions must be brought in Certain Courts or at Certain Places.Procedure. A single Form of Action in the nature of an Action on the Case was to be substituted in place of the Common-Law Forms of Actions and Suits in Equity.” r~ What such an attitude has meant in practical terms is that a large part of the Century following the adoption of the First Codes has been spent by the Judges in reading back into the Code. Another leading distinction between Common-Law Actions and Suits in Equity consists in their different Modes of Trial. Sec.C. notably New York. to. Caddell 170 N.” MeArthur v.75 Thus in Reubens v. Asseler. p. a number of states have adopted the substance of the New Rules in revising their procedure. the latter by the Court. 78V. 7 Clark.75 the objections of the Courts which have taken an unfriendly attiTa chief Justice ~. Joel. They proceeded by construction to import into the Code Rules and distinctions from the Common-Law System to such an extent that in a few years they had practically so changed it that it could hardly be recognized by its creators. 488. flail. is N. Paul 1947). 2. 548. Allen. 399. declared: “By what process can these two Modes of Relief be made indentical? It is possible to abolish one or the other. both for the Trial and also to support the Judgment and thus make the Plea of Res Judicata thereafter available to the Parties. 542. 564. Moffet. the Reforms under the Code of Procedure. said: “The cold. E. 402 (1888). 446 (1910).W.494 (1&6). provision by provision. or both. Can the Legislature abolish this distinction? They might. 22 N. not to say inhuman.e. but unfortunately many of the early Codes omitted the latter type of provision. 126 (1915). 445. 6 SE. Page 40 of 736 .. almost a third of the Several States of the United States were yet to accept the Reform represented by the adoption of a Code of Civil Procedure. CL Warren v. Conclusion ASIDE from the fact that after the lapse of over a Century. (2) Inherent differences as to Jurisdiction and Venue. tude toward the Code Reforms. abolish either kind of Trial. the Rules of the Common Law. According to Clark. The former are to be tried by a Jury. 143 Wis. in referring to the possibility of abolishing the distinctions between Law and Equity. ETC. 128 N. Louisiana is a remaining State which began with a Civil Law background. 567. from which it has never fully escaped. 78 Am. It See.

plus the fact that numerous States are still without the Circle of Reform. N. it becomes clear why many distinguished Judges cling to the thesis that the inherent and fundamental difference between Actions at Law and Suits in Equity cannot be ignored—a view which has found the support. with a more liberal point of view on the part of the Judges. or to a possible Variance in the Amount of Money Damages recoverable. 1934). been Revolutionary in Character. wiping out the Ancient Landmarks of the Common Law and the procedural experience of the Anglo-Saxon race. that they “are not archaic. according to Judge Clark. HAVE the developments which have taken place since 1848. (5) Inherent differences in Manner of „Trial and of Appellate Review. Alter the Provisions o Oxford in 1258. at least. 1. 55 Yale Li. and it was his belief that in time the Courts in New York would come around to the same view. referring to the Constitutional Right of Trial by Jury in “Law Cases” and to the different Methods of Appellate Review in “Law” and “Equity” cases. such as Execution on the defendant‟s body. that they became inflexible and in consequence the Common Law lost some of its inherent power of expansion. of one distinguished teacher. Viewed in its proper Historical Perspective. 80. Ail these problems have. in referring to the Abolition of the Forms. the power of the Clerks in Chancery was restricted. Keigwln. But the very existence of the objections enumerated by Judge Clark ninety-nine years after the adoption of the New York Code of Procedure in 1848. BASIS OF MODERN REMEDIAL LAW issued out of Chancery in great profusion. the Real and Mixed Actions became so highly technical. such as Statutes of Limitations which were drawn along the lines of the old Procedural Divisions. PRACTICE ACTS AND RULES OF COURT—MERELY ANOTHER STEP IN THE EVOLUTIONARY DEVELOPMENT OF THE COMMON LAW 7. been satisfactorily solved in other Code States. depending on the Form of Action chosen. referring to the Specific Relief of Equity as distinguished from the Money Damages ordinarily given at Law. Original Writs 79. Law and Equity In New York—Still Unmerged. I Page 41 of 736 . after the passage of some Seven or Eight Centuries. extending over a period of over eight hundred years. must observe that each new advance in our System of Procedure was and is but another Evolutionary Step in the Development of the Common Law. or to Particular Remedies granted only in Certain Forms of Actions. Rochester. but in the nature of things reasonable. During this period of inflexibility.(3) Inherent differences as to the application of Certain Statutes. and the Practice Acts of the Several States. Cases In Common Law PleadIng. creating New Rights and New Law. It was during this period that the Ancient Proprietary and Possessory Real Actions developed in great number. still survives as the basis of our Modern Legal Procedural Systems as they exist in both the State and Federal Courts. or rather. any unbiased and well-informed Student of Legal History. have they been merely gradual steps in the Evolutionary Development of Common-Law Pleading and Practice? In the first. together with the Federal Rules of Civil Procedure. 28 See Note. Generally. Specifically. and must acknowledge the fact that Common-Law Pleading. is some slight indication of the tenacity of the Common Law. or Flexible Stage. under the various Codes of Civil Procedure. accidental. 826 (1946). of the Development of the Common Law. (4) Inherent differences in Manner or Amount of Relief to be granted. difficult to manage and lengthy in process.” ~° MODERN PROCEDURE UNDER CODES. And when you add to this the fact that the great bulk of the decisions under the Codes have necessarily been made against the background of the Common Law. an effort to restore the Authority of the Clerks in Chancery Ch. and of Legal Procedure.79 who stated. 259 (2d ed. artificial or arbitrary. if not indeed in their essence necessary.

the World was witnessing.86 Yet Manufactures. therefore. * 8. during which Period. in the Third State of Development. No specific date on whieb this occurred may be assIgned but the process was completed by the Real Property Limitations Act of 1833. 83 Between 1848 and 1947. 3&4Wm.81 now largely replaced by the Su. 2 NJ.~~ which abolished the Real and Mixed Actions. the Modern Personal Common-Law Actions.almost Seven Centuries. not a Revolutionary Reform which swept the Common-Law System from its Ancient Moorings. When. operating through Chancery. From the Reign of Edward I (1272-4307) to 1848. both State and Federal. With this in mind. despite the passage of of 1873. but more as a result of the growing social.c. not necessarily because of the Defects in the Common Law. 83. under which remedies could be provided for the violation of private rights of most any character.27.IV. view the Present Status of Common-Law Pleading and Practice as it stands in the light of Modem Reforms. were abolished in favor of a Single. 839 (1949). these Modem Forms of Action. in England. the intervening one hundred years have been spent largely in reading back into Si. in 1848.85 England followed New York tems. 136. let us swiftly glance back over the territory covered. When. As a result of the Statute perhaps. so that the Residuary Power of the King‟s Council. economic and mercantile needs of England. * 36 (1833). like that which took place in the Roman System.~S6(1833). 1947). as is later observed. still survives as the preme Court of Judicature (Consolidation) basis of our Modern Legal Procedural SysAct of 1925. and which were gradually emerging into greater prominence with the decline of these actions. but merely a Third Step in the Evolutionary Development of Common-Law Procedure. only twenty-eight out of the fortyeight States followed New York in establishing Code Systems of Procedure. 29 the various Code provisions the Appropriate inent of the Common Law. 7 the Law of Code Pleading. In the course of time. edge the stubborn fact that Common-Law By the Supreme Court of Judicature Act Pleading and Practice. the Modern Common-Law Actions were substituted in the place of the Old Real Actions. based upon the change in the English social structure from One of a Feudal to One of a Commercial or Industrial Character. and to acknowlRule of the Common Law. And in those States which did follow New York‟s example. Form of Action. to abolish the Common-Law Actions and to substitute in lieu thereof the Modem Single Formless Form of Action. 3 & 4 Wm.2d 833. 65 A. Society For Establishing ttseflul Page 42 of 736 . cI. in favor of a Single Form of Action. But the effort was too little and came too late.was made so that they might again Create New Rights by Issuing New Writs under Chapter 24 of the Statute of Westminster II (1285). in both England and the United States. according to Clark. Paul. 27.8‟ it was assumed that such an occurrence was merely a Normal Evolutionary Development of the Common Law. was invoked to supplement the Common Law. in no one suggested that In Grobart v. were substituted in lieu of the old Real Actions which had predominated during the early Developmental Period of the Common Law. the New York Code of Procedure attempted to obliterate the distinctions between Law and Equity. and with almost a thousand years perspective in mind. Formless.87 in the abolition of the Common-Law Actions 87. fl. Legal Procedure was governed by the Common Law. c. St. 25 (Zd ed. ETC. latest in point of growth. but rather for reasons of State Policy. a Period of five hundred and seventy-six years elapsed. which to some extent ran parallel to the Ancient Proprietary and Possessory Actions. This change became official or was Procedurally recognized by the Real Property Limitations Act of 1833. Clark. iv. Handbook of Sec. MODERN PROCEDURE UNDER CODES.

in summarizing gradually being replaced by the Modern the Common-Law principles of Pleading still in ef Common-Law Actions. long and thorough survey of Reform Movements in So. 13 Va. any unbiased and well-informed Student of sufficiency of a Claim or Defense it must be legally Legal History GeneraJly. c. If before Trial & Claim or Defense is found to be legally sufficient Judgment Is for pleader unless opposite party Is allowed to raise an issue of fact SI. In rendering Judgment on a Claim or Defense er we look at the situation today in the light the Court must determine the legal sufficiency of of our most recent Procedural Reform under “4. 297.L. both England and America. See article by Hepburn. A Judgment Record contains Statements of Claim Formless Form of Action. simplest case. “10 If after trial a Claim or Defense Is found to be “16. came the long awaitedinality of Pleadings under the New Rules should not deceive one into believing that the essentials of “The Pleadings in the case at Bar are lengthy. 78—80 (1920).Pleading. 339—340 (1949).Itev. If after trial a Claim or Defense is found to be Birth of One Form of Action. or wheth. Specifically. in the nature of not Evidence introduced at Trial. Quite the contrary. In favor of the Single. Verdicts. The flexibility and seeming Infor Finally. but “2. that Each New change in Our System of Judgment by Writ of Error. l~ 15 & 16 Gee. and Findings of Fact. They remain the same as as opposed to Congress. V. Some States. and Defense. albeitsame principles are applicable to them as to the long overdue. Chief Justice Arthur Vanderbilt declared: tionary Change in the Common Law. even though Verdict Is for the pleader. in an article. will be forced to admit “6~ A.ti~ Ancient and Modern Procedure. or after 36 & 37 VIe.“8. Procedure. In the Hope of a New “9.— or Defense the Court looks only to the pleadings viewed in its proper Historical Perspective. If before Trial a Claim or Defense is found to another Evolutionary Step in the Develop-be legally Insufficient Judgment Is for opposite pafle „4. Pan II. matters proved may legally sufficient Judgment is for pleader If the not „vary‟ from matters pleaded. 09. Theory of fect.. The Statutory legally Insufficient judgment Is for opposite party One Form of ActIon. dure.L. at Common Law as a matter to Substantive Law in whole or partially have emulated the Fed- as well as of Good Pleading. which form a part of the Record. fore Judgment by Demurrer or Motion.1 A Jud~ent of a Court of Record is a conclusion with the abolition of the Common-Law drawn from premises appearing on the face of the Forms of Action by the New York Code of Jg‟~t Record. For the Court to be able to determine the legal the Claim or Defense. hut and in the District of Columbia in the hands not at the sacriftce of stating the elements of a of the Supreme Court of the United States. c. by Way of Reform. 30 BASIS OF MODERN REMEDIAL LAW Cit 1 Page 43 of 736 . Claim or of a Defense. whether we stand in the Period of thepleading: A Survey Including the Federal Rules. In determining the legal sufficiency of a Claim the New Federal Rules of Civil Procedure. Common Law when the Real Actions were47 Micb.this Development in referring to the present statue of Common-Law England was anything other than an Evolu. but the New Federal Rules of Civil Procedure. question of legal sufficiency may be raised be “5. 49(1923). For the Record to be true. and of Legal Procecomplete. an Action of Trespass on the Case. after a of Court as opposed to Legislative Fiat. a distinguished nuthority eral Courts in Regulating Procedure by Rule~ Ic. has been but “T. the objective of Pleading and Practice in the Federal Courtsreaching an issue of law or of fact in two or at the most three simple Pleadings has been attained.Rev. which sound Pleading at Law or in Equity have been sought to and did place the Regulation of abandoned. be legally insufficient Judgment is for opposite party •~8.” And William Wirt Blume. 66 (1878). in 1938. declared: Procedure in 1848. whether we start .

is an indisputable Itecord of the above principles are as valid today as they were matters adjudicated. Ancient and Modern. Of the Forms of Action (3d Am. 13. Origin of the Common-Law Forms of THE DEVELOPMENT OF THE COMMON-LAW FORMS OF ACTION‟ Action. IX. 2 Polloek and Maitland.. Anglo-American Law. The Common Law Actions and Remedies. Bigelow. “Writs v. II. ed. Holland. a. The Deve1opment of the Forms of Action. Fundamental Procedure in Actions at Law (New York 1922). Action as they existed at Common Law have usually begun by attempting to give some Actions at Law (Law Library. and of matters found by a such as time and place.form new issues by evidence introduced at the trial. 167. Introductory. “17. Writ and Bills. Cases in Common-Law Pleading. Wilson. Readings on the Study of Law and the Anglo-Americaa Legal System.. The Record of a Court of Record. The Parliamentary Writs and Writs of Military Summons (London 1827—1834). 1840). 0. at Common Law. 9. Schulz. Pt. Morgan. Real Actions (Boston 1828). c. a party “11. Actions and Defences (Albany. The Forms of Action at Common Law (Cambridge 1948). Chancery. On Pleading. I. §~ 210—215 (Indianapolis 1932). General Verdict. Appendix (New York 1896). To prcvcnt surprise at the trial the plaintiff CHAPTER 2 MOST authorities 2 who have undertaken to discuss the Development of the Forms of 1. 67—101. The Common Law ActIons.J. Rights”. 15 (1942). ~. Maitland. Philadelphia 184-1) Chitty. Palgrave. Lectures on Legai History. Pleadings serve as a Record of matters admit. “20. by Tyler. ings and Verdict or Findings. see: Treatises: Booth.Claim or Defense should be identified by details ted by failure to deny. €. 8. Browne. XX.must Plead Items of Special Damage. “18. Bk. 3 Street~ Foundations of Legal Liability (Northport 1906). § 3. A Treatise on the Priaciples of Pleading. “Except to the extent that parties are permitted to “15. Fifoot. C. ed.” Sec. III. II. 556— 571 (Cambridge 1895). 194—263 (London. by Ballantine. Actions at Law (2d ed. The Forms of Action. Scott. I. In Oxford Studies in Social and Legal History (Oxford 1914). IV— XIV (Cambridge 1913). 181—3 (London. if 27—34 (3d ed. §~ 218—225 (Chicago 1940). The Modern Real Actions. 255 (1920). Having pleaded one material matter. Stephen. Shipman. 56—83. Gould. 3 Uarvt. New York 1808). Writ „Praecipe Quod Reddat” and Its Continental Models. Philadelphia 1849). II. 1903). 1892). ed. D. 336—357 (4th ed. Warren. London 1948). II. To prevent surprise and future relltlgntion a “14. Benson & Fryer. 10—32 (Rochester 1934). Washington. Handbook on Common Law Plead ing. A Treatise on the Principles of Pleading in Civil Actions (3d Am. The Writ Systems (Washington. Real Actions (1st required to furnish a Bill of Particulars. 1 Roscoc. Classification of the Common-Law Actions. c. 1931). A Practical Treatise upon the Law of Judicial Writs and Process In Civil and Criminal Cases (New York 1895). Forms of Action (Chicago 1926). as developed at Common Law.VIII. History of English Law. 1. Jackson. Law Studies. “13. Pleadings in Particular Actions. 1 Thorpe. e. S Cambridge L. c.Rev. C. Barbour. The History of the Register of Original Writs. 13—54. 10. 1877—1879). Law of Actions Relating to Real Property (Philadelphia 1840). 54 Jurid. The Effect of the Development of the Forms of Action. Ia 11. 12. The Modern Personal Actions. Articles: Maitland. 1—67 (4th ed. To prevent surprise at the b-Ial the plaintiff may by the other party are deemed true or false in ac. on the Forms of Action. Waite. Lawler & Lawler. V. History of English Law. History and Sources of the Common Law (London 1949). C. Pt. St Paul 1923). A Concise History of the Common Law. “12. 1 Holdsworth. Klnnane. Ames. by Will. The History of Contract in Early English Equity. The Ancient Real Actions First in Order of Development. Plueknett. Anglo-saxon Laws. Forms of Actions.Rev~ 1 (1942): Page 44 of 736 .. which In. c. c 7. The Real Actions. Bk. Albany 1909). In determining the truth of a legally sufficient may not surprise his opponent by proving a difter claim or defense the court looks only to the plead. cordance with the Verdict or Findings. general.facts pleaded are found to be true. II. History of Procedure in England. Material facts pleaded by one party and not de. chides the pleadings. 212 (1889).ent matter. e. 18 MichtRev. IX (Boston 1880). Material facts pleaded by one party and denied “19. London 1880). A Short Introduction to the Law of Real Property. Keig~vin. Procedure. 97. The Study of the Law. cc. Prentice. Alderson. nied by the other party are deemed to be true.

both Ancient and Modern. P. HOW. Some Legal History and Its Bearing on the Forms of Massachusetts WrIts. land was held in some form under the King. King‟s Bench. Wills and Testaments and Probate and Administration. which affected land. c.Lib.J. This observation is doubtless true. x. would appear to be an almost fruitless effort. The Multiplication of this Process first produced the Ancient Real. the King‟s writ. 37 L. it is respectfully submitted that the viewpoint of one who is seeking an understanding of the Forms of Action should be one of realization that the “Common-Law Scheme of Actions was not framed. Civil Procedure at Common Law. which explained why the King‟s Courts were always keenly interested in any litigation. 0. Mixed and Personal Common-Law Actions. the King‟s Inquest and the doctrine of the King‟s peace. HB—i See. by Tyler. did three things which left an indelible imprint upon English Legal History.Mclntire.Law Pldp. but It 31 32 FORMS OF ACTION definition thereof. public or private. also.J. a.L. 1592). Humphreys. e. In the second place. 20 Mass. 273 (1936). Stephen. Maitland.J. he issued in 1072 what is now known as the Ordinance of William the Conqueror. Poundations of Legal Liability.L. A Treatise on the Principles of Pleading ia Civil Actions. Kottler & Reppy Com. he organized the System of Feudal Tenure under which. for example. Martin. See. This development not only exercised a profound influence upon the Procedural and Substantive Law of Descent and Distribution.Ve. 8 (St. Formedon en Remainder at Common Law.” ~ ORIGIN OF THE COMMON-LAW FORMS OF ACTION Ch. Washiniton. 1. 333 (1927). Lecture I. whereby individual litigants applied to the Chancery for Original Writs authorizing one of the three Courts to try a Specific ActIon. 523 (1923). 2. Classification of Actions In the Common-Law System. then.T.L.4 which separated the Ecclesiastical and Common-Law Courts. it grew. Form of the Original Writ in West Virginia. On the early Prerogative Writs in the Common Law see article by Jenks. in legal theory at least. The answer to these inquiries can only be discovered and understood against the background of the Norman Conquest and the statesmanship of William the Conqueror. that no understandable effort to define what is meant by the phrase “Forms of Action” could be made except as against a somewhat detailed survey of the History of the Common-Law Forms of Action. did the Formulary System of the Common Law develop the Ancient and Modem Common-Law Forms of Action? And why is a knowledge of what was meant by the phrase “Forms of Action” essential to one who seeks to understand the Law? comes at a time when the beginning student is not qualified to fully comprehend its meaning. 1906). 164 L. which later were superseded by the Modern Common-Law Actions. To present a definition to the student at a time when he has no apperceptive background or conception of how the Forms of Action developed. 37 (Northport. 37 42 W. Exchequer and Ctmmon Pleas. ft 7. who operating through the King‟ s Council or Curia Regis. Comments: The Writ in Legal History. where he begins by pointing out that the choice of a Form of Action Is a choice between the different Methods of Procedure adapted to different kinds of cases.Q.Q. 2 & The Common-Law Forms of Action had their Origin In the Action and Inter-action which took place between the Chancellor and the Three Royal Courts. 32 Yale L. ~ a Street. 7 Camb. Introductory. The Forms of Action at Common Law. 1—4 (Cambridge 1948). The Prerogative Writs in Eng11th Law. In the first place. but by Page 45 of 736 . 238 (1941). 39 (3d Am. In any event. (1935). or the Proceedings In an Action from Its Commencement to Its TerminatIon. ed. Paul 1905). 14 (1944). The History and Use of Writs: A List of Selected Books and PeriodIcals. It has always seemed that this was to put the cart before the hone. IV.

of rapid legal growth during the long reign of Henry Ili (1216—1272). whIch originally appeared as a contribution to the Symposium on the Law of Wills and Administration of Estates In honor of the distInguished authority on that subject. And it was through the operation of these New Courts under William the Conqueror [1066—1087]. Modification was for the most part not sudden or revolutionary. but the result of a long process of growth. which included the authority to entertain All Actions between the subjects of the King. each presided over by four Judges. the Possessory Assizes.IJ. The Ordinance of William the Conqueror (1072)‟—Its Implications in the Modem Law of Succession (New York 1954).” Bownina. Sec. and Other Business Pertaining to the Crown. Writs of Entry and Writs of Entry and Forcible Detainer. Speaking very generally. 5 33 Customary Local Law. expanded its Jurisdiction at the expense of the other Two Courts in a manner so as to include all Personal Actions. it may be said that there was a time of political reorganization under William the Con~uoror (1006—lOST) and his son Henry (1272—]307J. Exchequer. in the beginning. Real. Handbook of Elementary Law. began creating a System of Royal. by Bill only. Jurisdiction was distributed as follows. Superior Courts. then in existence. King‟s Bench. by resort to a Fictitious Allegation of Trespass wider which control of the defendant could be secured by an arrest. In the meantime the Court of Common Pleas continued to exercise its Original Jurisdiction. the “English Justinian” King‟s Bench. and of legal consolidation and eonstt-uction under hdward I. The Court of King‟s Bench exercised control over Crimes. In the Three-cornered Struggle for Jurisdiction. in the process of political reorganization of the whole country. “is the regular and ancient one.reason of the fact that it left Jurisdiction over Freehold Estates in the Common-Law Courts. and the latter is in the nature of an exception to it. By a similar process of usurpation the Court of Exchequer also came to exercise Jurisdiction over Personal actions.” ~ The Original Writ Page 46 of 736 . but the Jurisdiction of neither Court extended to the cognizance of Real and Mixed Actions. and they were not at first National Institutions. and in time. known as communia placita. 6- ORIGIN OF FORMS OF ACTION „For most matters affecting the mass of the nation the Ancient System of Customary Law arid ~ cal Courts was continued in effect. according to Stephen. The Nation was governed by the 4. Matters of Revenue Excepted. 523 (1954). of legal Innovation and creation under Henry‟s able grandson Henry II (1154—11S9). Perceiving this condition William. The account which follows will be materially aided by keeping in mind the names of these kings and the dates of their reigns. the Forms of Action Developed An action could be instituted in each of the Three Superior Royal Courts. Covenant. he established Law and Order through the creation of a Centralized Sys tem of justice. Dean Alvin Evans of the University of Kentucky Law School. to which those not satisfied with the Local Courts. In King‟s Bench and Common Pleas an Action could be commenced either by an Original Writ or by Bill. the Court of Exchequer handled cases relating to taxation and Revenue. 80. in Exchequer. as an incident of which the Common-Law Forms of Action were developed. Debt and Detinue. In the third place. while the Court of Common Pleas dealt with Ordinary Civil Suits between subject and subject. such as the Ancient Proprietary Writs of Right. There the best Brand of Justice was not always available. See Reppy. over those Personal Actions of later vintage. nor were they a part of the Regular Machinery of Administration. that the Centralization of Justice was achievedA The Courts in Which. might repair. The agencies by or through which these things were done were. Mixed.‟aul 1029). 152 (St. which was Administered in the Local Hundred. The Former Method of Commencing an Action. and Common Pleas. The proceeding by Original Writ consequently claims first notice. Henry It 1154—1189]. 10. Henry‟s grandson. Mixed and Personal. 42 Ky. I (1100— 1135). Torts Akin to Crimes. or such Modern Actions as Account. l. Henry I [1100—1135]. or Personal. it was largely responsible for the subsequent necessity of classifying the Common-Law Actions as Real. c. the King‟s private property. Shire and County Courts. and Edward I [1272— 1307].

perhaps in aid of some great tenant of the King. all that needed to be done was to expand and develop New Forms of what were. as he suggested. I. King‟s Bench. and it was under an order or orders of this C. under which the King was to Administer a System of Law as broad in its scope and variety as the Roman Law. became a Judicial Administrative Order. it gradually and naturally fell into regular Administrative Channels. 2 7 character that the facts were gathered for the Domesday Book. FORMS OF ACTION For a group of comprehensive essays. Maitland and Montague. representing the King. therefore. C. And it has been attributed to Banulf de Gianviil. v. As the Authority of the King was more frequently exercised. its activities were strictly limited to only those cases which were delegated to it by means of an Administrative Order.~ The Forms of Action. Bk. I.—In the beginning these Judicial Orders. perhaps a royal favor. I. it was only normal and natural that the existing System of Administrative Controls should be applied to the conduct of the King‟s business in the Courts. at this moment. which. During the latter part of the Reign of Henry II (1154—1189). constitute a vivid illustration of the dependence of right upon remedy. merely thought of as new routines in the Process of Judicial Administration. Washington. 34 Stephen. c. But later. A Treatise on the Principles of Pleading In Civil Actions. if some new wrong be perpetrated then a New Writ may be invented to meet it. to enlarge their Jurisdictions was not great. as numerous as there were Causes of Actions. which had been occasional and extraordinary. but it is generally thought to have been somewhere around 1187—1180.—When the Conqueror first took over in England. when it became necessary or desirable to expand the activities of the King‟s Courts. now familiarly known as an Original Writ (breve originale). who may have written under Glanvill‟ s direction. Domesday Book and Beyond: Three Essays In the Early History of England (Cambridge 1901) time [1178—1189] the tendency of the Royal Courts. that as each of the Superior Common Law Courts split off from the Curia Regis or King‟s Council. write out and dispatch various Administrative Orders concerned with the execution of the business of the Crown. ed by Tyler. and we can hardly believe that only some seventy years divide the two. were issued only occasionally. became usual and regular. 40 (3d Am. 1802). and there was a distinct tendency to develop standards or Common Forms for handling the King‟s business. In Glanvill‟s ‘. D. 43 (New York 1915). who Failed to Secure Justice in the Local Courts. Of the Proceedings in an Ac‟ tion from Its Commencement to Its Termination. declared: “We look back from it to a law book written in the reign of Henry I (1100—1135). The one can. in the beginning. when applied to Judicial Affairs. written about 1115J. be read and understood by anyone who knows a little of Medieval Latin and a little of English Law. The exact date of Its appearance is not known. to be. c. he followed the Norman system of having his Secretary. he produced the first authoritative story of the Development of Procedural and Substantive Common Law. instructed his Ambassadors by Writ. in pursuance of the Conqueror‟s announced policy of non-interference with the Local Courts. the first systematic treatise of English Law appeared. . under the reforming energy of Henry II. the author may have been his nephew. an effort was made to aid the Administration of Justice by creating a System of Royal Courts to which Litigants. The Common-Law theory that wherever there is a wrong there is a Remedy 9 was in effect given expression even at this early date when it was declared that there ought to be a remedy for every wrong. (U) The Depends~we of Right upon Bernedy. [the Leges Henrici Primci. the other will always be dark Page 47 of 736 . flistory of English Law. It is not surprising to find. the use of such Writs. c. in the process of establishing Law and Order. might repair. such 8. A Sketch of English Legal History.(I) The Historical Rack graund. According to 1 Pollock and Maitland. as evolved by the Lawyers and Judges. Exchequer and Common Pleas. Ch. therefore. In Bracton‟s day [1245—1267] however. see Maitland. in commenting on this book. Hubert Walter. the period of growth was definitely under way. Under Henry It (1154—1189). and the Procedural Mechanism by which this was to be rcalized was to be through the Invention of New Forms of Actions. therefore. When. Henry‟s great Chief Justielar. the Chancellor. In any event. The King summoned his Army by Writ. 143 (Cambridge 1893). The question of whether a man could bring this or that Action.

as has been suggested. While in general these disputes might also have been handled by the Local Courts. General. 107 (1889). In theory. These Writs. In the beginning such intervention was largely administrative in character. In general. through the Chancellor. Such books took the Form of Commentaries by Judges and textwriters upon the character and use of the Writs available in the Begister. These Forms of Action. 549 (Boston 1908). IX. see Maitland. Assumpsit.L. Ancient and Modern. The gulf between them looks like that between Logic and Caprice. 3 Ilarv. Abridgment of the Law. Collected Papers. c. if.LRev. what Forms of Writs were then available to litigants. 35 36 & 37 Vict. 3 Hat-v. from the transcript of the Form as it appeared in the Register. 36. however. were wide differences. was a question of Substantive Right and of Liability. Cambridge 1911). ibi renwdium). 2 Pol)ock and Maitland. And these Forms were issued. This type of activity applied mostly to Civil Pleas or Common Pleas. a Writ might issue from the King. yet the Right of Action at Common Law was dependent upon whether the litigants‟ facts fell within the scope of a limited and arbitrary list of Writs. History of English Law. during which time its 51cc constantly increased. reprinted in 2 Select Essays in Anglo-American Legal History.” 0. 97 (1889). as a result of which the Common Law Regulating the Land was ultimately to be converted into the Common Law of the Land. found their way into and were permanently recorded in the Chancery in a book known as the Register of Writs” 10. c.ilev. II. whereas Pleas to the Crown. was not conclusive against the propriety of the Form. 66 (ISiS). § 1. e. there ought to be a remedy for every wrong (ubi jus. until the Judicature Acts ‘° in the Nineteenth Century. the King‟s Court was even then in the throes of developing a Formulary System through which it was ultimately destined to establish a Broad. It also served as a guide to Lawyers as to what Writs were available in the Chancellor‟s omce. persisted in actual use in English Procedure for Six Centuries. XXX. and so on. (Regisirurn Brevium) which was first printed and published in the Reign of Henry VIII [1509—1547]. ed. 11. National Jurisdiction and approximate the Common-Law ideal of affording a litigant a remedy for every wrong. 28. by Fin lasen. in his article on The History of the Original Writs. where the Feudal Court was either weak. we omit the variations. 110 (Edited by H. Maitiand. ORIGIN OF FORMS OF ACTION Sec. 8 as Trespass. The History of Original Writs. 97. “Actions in General”. on the subject of Writs. as & ~a Viet. 562. A. ordering the Feudal Lord to do immediate Justice or appear in the King‟s Court on a certain day and explain why not. Trover. depended upon a System of Procedure controlled by the Local Authorities. as under the Feudal System the crown was concerned with maintaining strict control over the land. 4 Reel-es. 568 (Cambridge 1S95). and from time to time. partial or actually corrupt. 1 Bacon. These Civil Pleas originally were Pleas dealing with the land. 566 (Am. if the variations in each one were noted. rrocedure. first published in 1596. declared that the Register grew and expanded over a period of some Three Centuries. B. book thus became an authoritative source I or the purpose of determining. 29 (Dublin. from the time of Henry TI [1154—1189] and Edward I [1272—1307]. at any given moment in English Legal History. Henry VIII. Bk. This . reached Into the hundreds. The purpose of the Register of Writs was to provide the Clerics in Chancery with an authoritative collection of Forms for all the existing Writs. criminal for most part. Thus. and such threats. however. A variation. Fisher. Long after the period of its greatest development had passed it appeared in print for the first time in what is known as A Collection of Rastell‟s Entries. c. There were at any given moment of development—a development which stretched over Centuries—only the same number of Rights of Action as there were Forms of Action. reprinted in 2 the most Learned Scholars. Philadelphia 1880). For some Two Centuries thereafter this book and others based upon it were among the 36 commonplace books used by the Practicing Lawyers. between Reason and Unreason. were not without both Anglo-Saxon and Anglo-Norman precedent. e. History of English Law. 77 (1875). 1786). the number may be estimated at thirty or forty between which there FORMS OF ACTION Page 48 of 736 . for the purpose of setting the Local Lord‟s Judicial Machinery in motion. if it appeared correct from other sufficient authority adduced.

issu ing out of Chancery. Now. the relationship of which will be developed later. he could accomplish the desired end of authorizing the proper Court to try the case. An Original Writ. immediately after the First Superior Common-Law Court was differentiated from the King‟s Council. and there developed in the Common Law a great multieiplicity of Types of Actions. in the King‟s name. had been issued several times to cover that Specific Factual Situation. the Beginning and Foundation of the Suit. let us say. whether involving Breach of a Contract. there must have been a time. In Sec. or upon the defendant‟s failure to do so. containing a Summary Statement of the Cause of Action. however. as referred to above. for the first time. according to Blackstone. Where title or a proprietary interest was involved. and required the Sheriff simply to enforce an Appearance. was a mandatory letter on parchment. It was a kind of Judicial ~xecutive Order to show cause why he had not redressed the wrong complained of. and directing it to the Sheriff of the County where the Cause of Action arose. the whole gamut of human activity was in a manner covered. until by a similar process. And so on. as almost all types of injury. doubtless looked over the Forms of some of his Non-Judicial Administrative Orders. if for a moment we retrace our steps. faced with the Concrete problem of framing a Judicial Order for the first time. Thus was created the Writ of Trespass to Personalty (Trespass tie bonis asportatis) And so with another slight variation in the language of the Two Preceding Writs.(III) The Creation of the First Origina‟ Writ and Its Three Purpose&—However this may be. in one of the Ancient Real Actions and in one of the Modern Personal Actions. appear below: FORM OF TIlE WRIT OF PEAECIPE IN CAPITE‟5 Page 49 of 736 . under the Great Seal. hence the Chancellor or his Clerks had to Frame a New Writ to cover a Trespass to personal property. S 37 some cases it omitted the former alternative. If. making with each variation a New Writ. the exact date of which is buried in the mists of history. Pursuing the same thought. and requiring the defendant to satisfy the claim. directed to the Sheriff of the County where the injury was alleged to have occurred. At this point the Chancellor. Adopting such Nonjudicial Order as a pattern. based upon a claim that his title or possession to certain property was in jeopardy. After the first Original Writ of Trespass quare clausum Ire git (Trespass to Land). then to Summon him to appear in the designated Superior Common-Law Court on the day named in the Writ. occurred under slightly different combinations of Facts or Events. the petitioner appeared in Chancery with a Complaint that his cattle had been taken and carried away. the CIt 2 Chancellor was confronted with the problem of just how he would delegate to the then single existing Court the required Authority of the King which was essential f or the Court to function or to hear the Complaint contained in the Petition to the Chancellor. or to the defendant. a Writ of Covenant was the plaintiff‟s only remedy. a Writ of Debt was framed. the First Writ did not fit the Factual Situation. but where a mere possessory interest was in question the Remedy consisted of a Possessory Writ. Looking over the Form of the Writ of Trespass quare c7ausun‟ ~ fregit. the Chancellor doubtless discovered that by changing the description of the property involved from realty to personally. if the Complaint was that the defendant had breached the terms of a Sealed Contract. he thus created the First Original Writ. it gradually acquired a Fixed Form and a Fixed Theory of Liability. the - issuance of which created a New Right. but phrasing it in Judicial Language. he was able to bring forth the Writ of Trespass for Assault and Battery. when the first litigant petitioned the Chancellor for Relief. if the Complaint was that the defendant had failed to pay the plaintiff a sum certain due and owing. Injury to Person or Injury to Property. ORIGIN OF FORMS OF ACTION Examples of the Form of such a Writ. the Remedy required was some Form of the Writ of Right. observed that they usually began with greetings from the King and were directed to the individual whose action was sought. which later was followed by the Writ of Trespass (quare ckiuaum fregit) and the Writ of Ejeetment.

And have there the summoners and this writ. in the course of which he not only repeated the Charge in the Original Writ. to the creation of a New Cause or Right of Action. unless he shall do so. otherwise the mutter was to be referred to Parliament 38 FORMS OF ACTION developed. the defendant Appeared in Court. Appendix. and (if) the aforesaid Arthur Brown shall give you security to prosecute his claim. To the Sheriff of County. I. 24. on ). The issuance of each New Writ with each new variation in the Combination of Facts or Events presented amounted. The Forms of Action at Common Law 82. thes~efore.The English edition. that the Original Writ as finally l~ It was this very practice. in Common Pleas before our Justices at Westminster. 1794)To the Sheriff of FORM OF ORIGINAL WRiT IN DEBT EDWARD THE FIRST. FITZ-HERBERT. WITNESS. King of England. to shew wherefore he bath not done it. (English ed. In other words. provided they fell within the scope of some existing Writ. COMMAND William Johnson that justly and without delay he render to Arthur Brown one messuage with the appurtenances in Trumpington which he claims to be his right and inheritance.‟3 At this point. which led the Barons in 1258 to draw up what are now known as the Provisions of Oxford. by good summoners. And unless he will do this. 2 Page 50 of 736 . County. and Maitlanci. which he owes to and unjustly detains from him. it should be observed. as it is said. and have there the names of the summoners. 20. it 2 (Cambridge 1945). then sum mon. It was this restriction upon the Clerks which ultimately led to the Enactment of the Statute of Westminster 11 (1285). and if the said Arthur Brown shall make you secure of prosecuting his claim. 365 (St. _______ _______ of good and lawful money of Great Britain. c. 1 Pickering‟s Statutes at Lar-ge 196. King of England. served three distinct and material purposes: Ch. on ______ to show wherefore he hath not done it. as set out in Martin. Paul 1905). 13 Edw. that justly and without delay translation of the Writ of Praecipe In Capite as bet out above wa~ taken from the 12. GREETING: he render là Arthur Brown the sum of £10 COMMAND William Johnson. and to hold of us in chief and whereof he complains that the aforesaid William Johnson unjustly deforceth him. Natura Brevium (Dublin 1553). filed his Declaration stating for the first time his Cause of Action. and this writ. as we shall see. in pursuance of the authority granted therein. (or. then summon by good GREETING: summoners the aforesaid William Johnson that he be before our justices at Westminster. ourseif at Westminster. TIDD‟S APPENDIX. but expanded it into a full-fledged Statement of his Cause of Action. WITNESS. the Writs were not transformed into Actions until. At that time the plaintiff. late~ of County. elaborating upon the Charge Stated in the Original Writ. therefore. Natura Brevium. Pitz-Hcrbert. which bad a restrictive effect upon the practice of the Clerks in Chancery in issuing New Writs.EDWARD THE FIRST. ourself at Westminster. under which the Clerks were authorized to issue New Writs in all cases similar to but not Identical with Trespasses. Civil Procedure at Common Law. the said William Johnson that he be before us on the day of wheresoever we shall be in England.

‟5 For the fines payable on Original Writs. Philadelphia 1801). Philadelphia. 8 ORIGIN OF FORMS OF ACTION :39 Page 51 of 736 . originally it was not the Function of the Original Writ to set 15. he could not declare in Account. S. Practice of the Court of King‟s Bench in Personal Actions 97 (1st Am. 147 (Boston 1580).” ‘~ The second is that the Earlier Writs of course (Writs “dc cursu”). (2) it authorized the same Court to assume control over the controversy. 532 (1900). the first step in the Commencement of an Action was. and constitutes one explanation of the Crown‟s unfailing interest in the Administration of Justice. the relation of the Charge in the Original Writ to the Charge in the Declaration. 16. no Action could be begun in any Superior Court without the express sanction of an Original Writ. In the beginning apparently there was no connection between the Original Writ and the Declaration. to wit. except in the case of the Practice of Proceeding by Bill. This suing out of an Original Writ. According to Bigelow. and for a full explanation of the subject of Pines. Co. for if the plaintiff sued out of Chancery an Original Writ in Debt. Bigelow. Ibid. xl-xliv (IV) The Relation of the Charge in the Original Writ to the Charge in the Declaration —In considering the Early Developmental Stages of the Writ System. BilL. the general effect of which was to confer Jurisdiction on the Specific Court in which it directed the defendant to Appear.” 18 This brings us to the third thing which must be kept in mind. Covenant. The cost of these fees.IbId. In short. History of Procedure in England. 18. The Writ Froceas. it is well to keep in mind three things: The first is the significance of the Writ Process as a device f or “making a pathway for the Jurisdiction of the King‟s Court. or to put the matter in more technical phraseology. 11.) 38. The Character of the Writ definitely defined and limited the Character of the Action. upon the payment of a fee 14 to the King. 721 (1013).” If this fact be well understood. D. In troduction. taken by the plaintiff. The net effect Xl. IV. “they were gradually developed on English soil.. did not arise out of the Writ. of all this was to make the King “the fountain of justice.” as Bigelow observes. as pointed out above.‟7 “created by a stroke of the pen. became a continuing and ever-increasing source of the King‟s revenue. or imported into perfect form from Normandy. 85 A. which existed long prior to the time when the Actions of Trespass on the Case came into being and operation. 15 App. Parsons v. „were not. B. it will clearly appear that the Common-Law Forms of Action antecedent to and therefore necessarily not founded upon the Statute of Westminster II (1285).C. the size of the fee being in proportion to the amount demanded by way of Damages in the action. Sec. out of rough and even shapeless material. (3) It determined the Character of the Action to be tried. consult Bellon. & \V. It. therefore. or to put the matter in more technical language. to whom it was available as a matter of course. as we have seen. c. v.” and his Writ the Foundation of the Jurisdiction of the Court. it gave the Court Jurisdiction over the Parties to the Action. that originally it was “entirely foreign to any purpose of the Writ to set forth tha Formal Language of an Action.(1) It authorized a specific Superior Common-Law Court to acquire control over the specific individuals involved in the controversy. Ootta. (London 1798). see Tidd. at the Various Stages in the Development of the Writ Process. Practice In the Courts of King‟s Bench. or any other Form of Action but Debt. it gave the court Jurisdiction over the Subject Matter of the Action and served as the Institution of the Action. 4 Boyce (Del.” but though of Continental origin.

and that the Writ. it was required to include a definite statement of the subject matter or Cause of Action. he may hare proceeded openly and fairly in all matters. Ii. however clearly the Facts of the Controversy might have been brought before the proper Court. Or.—When the plaintiff petitioned the Chancellor for an Original Writ. therefore. and the problem arose of delegating to them the authority to act in each Cli. 2 Page 52 of 736 . He chose at his own persona! peril. or Thirteenth Century. having his hand in most of the business of the Kingdom. declared: “If a wrong Actiou was adopted. to change the ñgure. and their knowledge of the Cause of Action necessarily must have been obtained from the Original Writ. The Historical Development of Code Pleading c. the actual service was made by the “good summoners” ref erred to in the Forms of the Old Writs. § 46. 2 40 put to no other. It was not enough that he stood within the Temple of Justice. The man who has a quarrel with his neighbor comes hither to choose his weapon. and as such was long the most powerful Officer of the Government. Referring to this characteristic of the Common-Law Forms of Action. as the defendant was entitled to be apprised of the plaintiff‟s demand. If he sued out a Writ of Replevin for a wrongful taking of Personal Property. The plaintiff may have served his Adversary in due time. ~ 1. History of English Law. declaring: “It contains every species of medieval weapon from a two handed sword to the poinard. if he sued out a Writ of Debt and his Complaint was that he had been evicted from Blackacre. All the weapons of Juridical Warfare are here. 559 (Cambridge 1895).forth the Charge contained therein in the technical form or language of a full-fledged Cause of Action. the so-called offiebu. but he must remember that he will not be able to change weapons in the middle of the combat and also that every weapon has its proper use and may be put to none other. he could not recover in Special Assumpsit for Breach of a Contract. It must be with FORMS OF ACTION (VI) The Power to Issue New Varieties of Original Writs. Chancery. was like an armory. he could begin again. c. and from the fact that any Administrative Orders of the King were usually prepared under his personal supervision. But every weapon has Its proper use. Procedure. until by the time of Glanvill (1178—1189) they were approaching a point of contact. and may have given as full Information as to the Material Facts of the Case as could be given in any other Action. It has been suggested that the oldest Common Law Forms of Action are a direct lineal descendent of the (3cr-manic formulae of Pre-Norman and Norman England. which has a long record reaching back to the Anglo-Saxon time of Alfred. If he selected a Form of Writ which did not fit his case. Moreover. selecting a Writ appropriate to the character of his Complaint. were originally two separate forces operating independently of each other. justitiac. If he chose. were gradually converging. To It every man who would contend with another in the Courts comes to choose his weapon. Once this convergence was completed. the Error was fatal to the whole proceeding. only one wcapon can be chosen at a time. he was under great pressure to select the right Writ for the facts of his case. 47—48 (Cincinnati. in his work. nevertheless. it should be remembered that the Conquest introduced into England the Norman principle that no individual or institution could act for the King or his Council unless authority to do so had been delegated to him. but under like conditions. and can be ‘9. In each instance where he selected the Wrong Form of Writ. When. the case would be dismissed. the Superior Common Law Courts were differentiated from the King‟s Council. which however. The choice is large. At his peril he must select the appropriate formula. IX. And. but all this would not avail if his Action was not technically the proper one. it is clear that in time the Writ came to control both the Form of the Action as well as the Statement of the Cause of Action contained therein. Thus. there may have been no question as to the substantial Justice of his claim. This resulted from the fact that he was the Keeper of the Great Seal which had to be impressed upon official Documents. If he selects a sword. Be must pay the costs and go out of Court. and once chosen It cannot be exchanged for a different weapon In the progress of the combat. for which he should have sought a Writ of Ejeetment. he could not succeed.—The Chancellor was the King‟s Secretary of State. and the Count. And Professor Hepburn. in order that he might prepare himself to meet it intelligently. (V) Necessity of Selecting the Correct Form of Writ. he must observe the rules of sword-play. It the ~ght Is to go on. in this connection. II. The choice is large. he must have entered through a particular door. Bk. his only recourse would be to retrace his steps and start over. Pal-lock and Maitland compared the System to an Armory. And when the summons was thus accomplished by virtue of the authority of the Writ.”” Pollock and Maitland. 1897). he must not try to use his cross-bow as a mace. was not completed until the next. which is of ancient origin. however just his grievance might be. but which.

between 1154—1250. in speaking of Bracton‟s debt to Azo. was distinctly English and not Roman. skilled in drafting Executive Orders for the King. and of how Law should be arranged and stated. the Great Civilian. 756 (Chase‟s Am. XIV. Bracton took as his Model the Treatise of Mo of Bologna. the plaintiff could not maintain any Action at Law. In consequence the Law.” And as new social needs arose and as the political status of the country permitted. to which the language of some known Writ was applicable. described by Pollock and Maitland as “the Crown and flower of English Medieval Jurisprudence. it will be 41 Page 53 of 736 .” but also the “Mother of Actions. New York.” In this connection. But it should be remembered that these Courts were powerless to act without the authority of the King‟s Writs. as developed in the King‟s Courts.” 20 appeared. New Writs were hammered out on the anvil of Justice in the Shop of the Chancellor. Bracton‟s De Legibus et Consuetudinibus Angliae. Unless the plaintiff‟s Complaint such a weapon as was first chosen. The System. It is a contest of skill. the shop or mint of Justice. who made effective the Judgments of the Royal Judges. but later only according to Precedent. The Original Writ System was the fundamental basis of the New System of Centralized Justice. the second great treatise in English law.. and who. and according to Its special rules. The credit for the creation of a Centralized Judicial System belongs therefore not only to the Common-Law Courts. It became not only the “Shop of Justice. Blackstone referred to the Chancery as “the oil icing fustitiae. 8 ORIGIN OF FORMS OF ACTION field of Anglo-American law. ]3ook III. chief among which were the Chancery and Ecclesiastical Courts. which taken together. or unless the Chancellor saw fit to Issue a New Writ. or for some New Writ. made Remedies available which were not ordinarily available under the Customary Law of the land. underwent a tremendous growth. The power to make New Writs was a power to create New Rights. c. but to the King and the Royal Officials. framed on the analogy of those already in existence. If Bracton‟s book be compared with that of Glanvilli. success depends upon observing the formal rules of the combat. At first the Writs were probably awarded according to Abstract Conceptions of Justice and the needs of the case. however. was the joint product of the Common-Law Courts. before it could achieve the position of first rank in the Sec. New Rights and New Laws were created. naturally the Chancellor and his Clerks. 21 Maitland and Montague. And these Original Writs almost from the beginning differed from each other according to the nature of the Plaintiff‟s Complaint and the ground of the Defendant‟s Liability.” To the Chancery must apply all those seeking relief. 1517). fell within the scope of an Existing Form of Action. For approximately a hundred years from the institution of the Writ System to the early part of the Thirteenth Century. A sword being selected.” 22 The core of this Treatise. Thus the Chancery became the principal instrument by which Justice was gradually Centralized in the Crown. and represented the Law as laid down by the Judgments of the King‟s courts. with these he could fill up the Gaps in our English System. and hence New Law. the King‟s general power to formulate and issue New Writs through the Chancellor seems to have been unquestioned. by the King‟s Writs. wherein all the King‟s writs are framed.” Blackstone‟s Commentaries on the Laws of $lngland. A erossbow may not be used as a mace. became responsible for the preparation of Writs authorizing the Royal Courts to try Specific Cases which fell within their Jurisdiction. and that this New System was faced with a Struggle for Jurisdiction and Power stretching over several hundred years against powerful rivals. as thus developed. as opposed to the Customary Law enforced in the Local Courts. Writs thus issued as a matter of routine were known as “writs of course. said: “Thence he had obtained his idea of what a Law Book should be. and which emerged during the latter part of the Thirteenth Century as a distinct System of National Law. ed. the rules of sword-play must be strictly followed. The issue of the combat must not be determined by mere brute force—not even by the brute force of indisputable facts arrayed before the Court. Of the Pursuit of Remedies by Action. thence also he borrowed Maxims and some Concrete Rules. Toward the Middle of the Thirteenth Century. came to be known as the Common Law. It served as a summary of the Writ System as it stood between 1250 and 1258 and assured that the story of the development would be passed on to subsequent

2 The great expansion of the Royal Authority by use of the Writ System. which assumed a separate existence after the Ordinance of LW1UI~ the Conqueror in 1072. Bk. would appear to have been the demand of the day.” ~ The Golden Age of the Forms of Action occurred during the last years of the Reign of Henry III [1216—12723.” 2 Holdsworth. the first great Epoch of English Legislation ended. c. There was. 25 Am.” 24 Ch. but Bratton. and denied the Motion for Nonsuit. 515. the Development of the Court of Chancery steadily proceeded. and that work they can only do by means of Fiction. in speaking of Chapter 24 of the Statute of Westminster II. Nevertheless. c. Shortly thereafter.seen that the Period beSO. II. for Writs are being made to do work for which they were £3. VI. t5. 562 (Cambridge 1895). Entrics of his name In various rolls make this clear. The Ecclesiastical Courts. „The typical pitfall which a Pleader might meet with in selecting a Form of Action is well illustrated by one of David Dudley Field‟s reminiscences concerning the period immediately preceding the Enactment of the New York Code of Procedure of 1848. § 54. Why? 25 fl. But for the Lawyer be and his works are. that the number of living Forms of Action reached its maximum. Sketch of English Legal History. the defendflat‟s Counsel insisted that it had a Zeal and so the Action should have been Covenant. FORMS OF ACTION not originally intended. therefore. When the Policy was produced at the Trial. had been one in which there had been a rapid development of both Procedural and Substantive Law. said he could see no seal. the Court of Chancery was created. Procedure. when he said: “I came near losing a ease on a Policy of Insurance by declaring in Assurnpsft. governed matters of spiritual conduct. Fewer Courts. Thus. but from another viewpoint. did not depend entirely upon the work of the Common-Law Courts.” Field. History of English Law. and a little liberality In the Judges. the greatest development of the Forms of Action was to be found in the development of the Common Law Actions of Case. London 1923). As long as Page 54 of 736 With reference to the Development of Equity as an incident of the reluctance of the Clerks in Chancery to grant New Writs. PollocIc and 3faitland. the Real Actions revealed a tendency toward obsolescence. 518 (1891). ?oolthtg at U without his glasses. less Jurisdictions. relief lay by way of Parliament and Statute. but the impression was faint. e. Rev. largely as a direct result of New Original Writs formulated in Chancery and approved by the “virile and progressive Judges who then manned the King‟ s Court. by extending rather than narrowing the remedial effects of the Writ) might bave effectually answered all the purposes of a . and always wiN be. 2 Pollock and Maitland. From one point of view this may be regarded as evidence of the vigor of the Forms of Action and as evidence of their capacity to forward the Development of Substantive Law. 162 (St. and certain aspects of the Law of Succession while much litigation was cared for in the Local Courts and in the Private Baronial Courts. Property and Tort Law. Law Reform in the United States and Its Influence Abroad. A tween 1154 and 1250. when the Old Ancient Real Common-Law Forms of Action were still in the running. was left in the Chancellor. Bowman. The Age of Bracton. 44 (New York 1915). History of Engush Law. 232 (3d otT. a mark on the paper as if it had been stamped with a Seal or something like it. approximately a Century. Thereafter. and the Judge. stated: “Which provision (with a little accuracy in the Clerks of the Chancery. 42 Randbook of Elementary Law.L. while at the same time certain of the Modern Personal Actions had put in an appearance. and with the death of Edward I [1307]. e. beyond this. 1 21. “fig fBraeton‟sJ flame Wag not Bracton. or perhaps gretton. while the Common-Law power to create New Forms of Action was nearing its close. Trover. 1. IX. out of the Residuary Power which remained in the King‟s Council after the Common-Law Courts were differentiated therefrom. sita~ ply Bracton. I (1285). The answer seems to be connected with the Power of the Chancellor to issue Original Writs. it may be regarded as the “decline and fall of the Formulary System. IV. c. 13 Edw. 185 (cambridge i595). Ancient or Modern. It was during this Period. Under the influence of the Provisions of Oxford in 1258 only slight power of varying the Writs. as thus recorded by Bracton. The Progress fl. History of English Law. Paul 1929). Special and General Assumpsit—a distinguished array—which ousted many of the Older Actions and made heavy contributions to both Contract. indeed. which authorized the Clerks to Issue New Writs In Cases similar to but not quite Identical with Cases in which Writs were previously Issued. of the Common Law. Ejectment. III. Blackstone.

or the. Or to put it in another way. forced upon Henry III [1216—1272] the Provisions of Oxford.— The issue involving the impairment of the Jurisdictions of the Barons was again raised in 1258 at Oxford. Oxford 1775k. „The Writ Process. The result might well have been to eliminate Equity or at least to prevent the vast expansion which thereafter took place. headed by Simon de Montfort. Of the Public Courts of Common Law and Equity 51 (7th oil. for the development of Exclusive Jurisdiction Over such Forms of Remedial Relief by Chancery. under which an Oath was imposed upon the Chancellor that he would issue no Writs “excepting Writs of Course without the Commandment of the King and of his Council who shall be present.King from continuing to impair the Jurisdiction of the Local as well as the Private Courts. although it re mains doubtful whether it had any permanent effect in restricting the Chancery from issuing Writs. S History of Procedure in England. c. they “exacted from him the first important concessions as the beginning of a long period of resistance to the absolute and centralized power of the English Kings. The fact that these Writs never became dc oursu. the result of this development was to deprive the Common-Law courts of the power to compel obedience to their Specific Orders. and its great qualities appeared as such only when viewed against the background of the earlier and existing situations. to find that when the Barons revolted against King John in 1215. there was little reason for the development of the Equity Courts. Bigelow. they are: (A) ORIGIN OF FORMS OF ACTION Impairment of the Lards! Jurisdiction Over Their Private Courts—One of the Methods by which the Crown drew unto itself control over the Administration of Justice was by depriving the Barons of their Jurisdiction over disputes with their tenants. The Barons.2° these were Writs of Protection. The theory was that the King intervened to assist a helpless tenant. But this condition was not destined to continue. as against a powerful landlord. and not in the light of later developments. According to Bigelow. 4. as a result of research that has been done in the early cases.” 3 Commentaries on the Laws of England. 192. But. 43 Law was necessarily retarded at a time when it had not yet fully flowered. at a time when it had not fully emerged from its Primitive Stage. At this time and place the power of devising New Writs and there by creating New Rights of Action—a powerful and dangerous weapon in unscrupulou~ hands—received a severe check. which we now know. e. 194 (Boston 1880). This untimely restriction upon the Power to Issue New Writs under which the Common Law had gone far in the direction of furnishing England a Complete and Adequate System of National Law. except that of obtaining a Discovery by the Oath of the defendant.” 27 And they took advantage of the situation to make official their resentment of the encroachment upon their Baronial Jurisdiction by placing a provision in Magna Carta. placed in Parliament and not the King.” Such provision clearly indicates the opposition of the Barons to the constant and increasing infringement upon their Jurisdiction. Sec. more effective than Section 34 of Magna Carta in 1215. of coercing obedience by orders in personam—a power. the development of the Common court of Equity. the effect Page 55 of 736 . was exercised by the Superior Courts of the Norman Period. and hence the Jurisdiction of the Royal courts would have remained unlimited and unimpaired as to this Type of Writ. there were a number which never became Writs of Course and which were of a character which in Modern Times would be regarded as Equitable. and of the protective process generally as exercised by Chancery in its Early Stages of Development. that is. ~O. Section 34 of which declared: “The Writ which is called Praecipe for the future shall not be made out to anyone of any tenement whereby a freeman may lose his Court. being the forerunners of our Modern Writs of Injunction. IV. or other litigant.” ~ This provision. but the net result was to give the King‟s Court Jurisdiction over the case. Several reasons for this unfortunate development may retrospectively be assigned. accounts in no small measure. they would have fallen outside the purview of the Provisions of Oxford in 1258. (B) The Provisions of Oxford (1258). therefore. the broad authority to create New Rights by granting New Remedies. resulted in the Common Law falling short of its full fruition. When the practice of issuing New Writs thus came to an end.this power was unrestricted and broad enough to encompass what we now describe as Equitable Relief. with only a fraction of his former power left to the King. If these Writs had achieved the status of Writs of Course. It is not surprising. Among the Third Class of Writs set forth by Bigelow.

there were also wide Gaps in the Remedial Law in both the Contract and Tort Field. thus giving rise to the question Page 56 of 736 . however. c. and No Remedy had been developed br the Breach of a Parol Promise. While these Actions met the needs of their day fairly well. Parliament made but scant use of this New Power. This was due in part to Defects in the Procedural Law and in part to Defects in the Substantive Law. the Provisions of Oxford soon became inoperative under the changing political conditions. placed in the road at a time prior to the injury. the Ancient Real Actions and certain of the later Common-Law Actions. Constitu tional Origin and Development. Covenant was still the only form of Contract known. U.” Milla. they. in addition to Wager of Law. 80—98 (Oxford 1874—78). had already been recognized. and the Ac tion of Debt was subject. XI. In the Contract Field. such as in the mere detention of goods where there had been no unlawful taking.of the Provisions was practically annulled some five years later by the decision of Louis IX. appear to have developed as a result of the action and interaction which took place over a long period of time between the Clerks in Chancery and the Common-Law Courts and The Statute of Westminster ii (1285). c. the right to Legal Relief was 28. the Action of Detinue had been rendered practically useless because subject to Wager of Law—a handicap from which it never fully recovered. the power of devising New Writs and thereby creating New Rights of Action received a severe check by the Provisions of Oxford. litigants were able to secure a rough and ready sort of Justice. were not definitely recognized at that time.~° which authorized the Clerks in Chancery to issue New Writs in all cases similar to but not quite identical with cases in which Writs had been previously issued. 27. and resulting in injury to property not then in possession of the owner. fell far short of the Common Law ideal of providing a Remedy for every wrong. c XIV. were. Common-Law Pleading. Nevertheless. At this point. It should be re niernijered that the Writ of Trespass on the Case. such as an injury to a reversionary interest in realty. consequential and not immediate in its nature. In the Tort Field. (3) accompanied by force. (2) accompanied by force. ~ 18 (Chicago 1935). On the Procedural Side. Pt. Anglo-American Law. For a discussion of the Origin and Development of the Provisions of Oxford. 2 (C) —By this time. even after Wager of Law was abolished. to the requirement of extreme particularity in setting out the various items of the demand sued on. which authorized the plaintiff to bring an action on the Particular Facts of his own case. it took no cognizance of those injuries which were (1) nnaccompanied by force. so that to all practical intents and purposes. Its By “Writs of coume. and through them. see 2 Stubbs. Judges. History of Enghand. Ch. though the former power of the Chancellor does not seem to have been renewed. nevertheless. These Defects. unless a situation out of which a Common-Law duty to pay a debt could be regarded as Contractual. And. in situations where none of the 29 approved Writs in the Register fit. Kinnane. ~ 205. On the Substantive Law Side. perhaps. Debt. FORMS OF ACTION restricted to the Actions then in existence. as so often happened in English History. the Clerks in Chancery being doubtful of their Authority to continue the Policy of Issuing New Writs. 222 44 (Indianapolis 1932). the presence of the Defects outlined above. Detinue and Replevin. p. coupled with the commercial growth and development of the country. which we are now able to point out retrospectively. such as an injury resulting from falling over a log. In conse— quence. while Trespass served as a fairly Adequate Remedy where the injury complained of was accompanied by force.” as opposed to Judicial Writs. who was appointed as an arbitrator between Henry and the Barons. I. however. But before it had developed into a wellrecognized and fully approved Writ. ~„were meant Writn far which Precedents might be found in the form book or Register of Writs kept in Chancery. an unconscious factor which led to the enactment in 1285 of the Statute of Westminster 1I. such as Trespass. without the aid of statutory enactments.

1111. and let them refer themselves until the next Parliament.31 21. The Statutc. Kinlysltle v. a 24 (1285). Thornton.4. e. is found Done. e. Clearly the Inventive genius of the Clerks in Chancery had not come to an end as in that event there would have been no need f or Section 34 of Magna Carta in 1215 or the Provisions of Oxford in 1258. 24. 778 (1931). c. 1 Pickering‟s Statutes at Large 196. I. The issue thus presented has long been the subject of a learned controversy which has developed a considerable literature. lest it might happen after that the Court should long time tail to minister Justice unto coMplainants. This Statute contained fifty chapters dealing with a great variety of problems. Sec. I. Personal Actions at Common Law. falling under like Law. See articles by Plucknett. S as to whether the Action of Trespass on the Case originated out of the Statute. and in like Case [in consimili casul. a distinguished legal scholar and Dean of Harvard Law School. by Consent of Men learned in the Law.” is 34 represented by Ames. the date on which the Statute was enacted. see History of English Law. known as the “Modernists.” which appeared in Chapter 24 of the Statute. and requiring like Remedy.” includes 4 Holdsworth3° and Landon ° (0) The Growing intervention of Ultancery. n. the Clerks of the Chancery shall agree in making the Writ. 13 Edw. Pifoot. 13 Ethv.32 Jenks and Sutton.Q. a Writ shall be made. 30. and let the Cases be written In which they cannot agree. 1 Pickering‟s Statutes at Large. of the Common Law. have developed Three Schools of Thought. This group. 24. 52 L. 24. or the Plaintiffs may adjourn It until the next Parliament. W. 657 (1776).29. This group.Rev.Bl. that in one case a Writ Is found. known as the “Revolutionists. 32.Rev. These include: (1) Those who believe that the Action of Trespass on the Case developed as a result of the impact of the Statute of Westminster II. 60. 1 Pickering‟s Statutes at Large 196. Scholars and Teachers. 31 CoLL. among whom are some of the most distinguished Anglo-American Legal Historians. 442 (Cambridge 1913).—Perhaps the real responsibility for the Arrested Development of the Common Law should be laid at the door of Chancery. 96 Eng. and is not to be regarded as a Statnte in the modern sense. 196. X. Development of Actions on the Case. c. History and Sources Ames. provided: “And whensoever from henceforth it shall fortune In the Chancery. Contract and Tort. or is to be more satisfactorily explained on some other theory. 45 (3) Those who adopt the Middle View that while the Action on the Case existed prior to 1285. 1113. 35. See Sutton. as a result Page 57 of 736 . C. As a matter of policy the King‟s Council evidently felt that there were certain Areas of Jurisdiction over which it desired to retain a closer supervision. Law and Morals.” includes Plucknett3° and Dix. The participants in this controversy. 136 (Boston 1912). This group. presented his views in Lectures on Legal History. 19 (London 1949). 220 (1936). ~‘ (2) Those who think that the Statute of Westminster It ~ had nothing to do with the Origin of the Action on the Case. 435. 2762). 23. 24. 3t For the view of Jcnh-s.~‟ taking its very name from the word casu as used in the famous and familiar phrase “consimili casu.” (Translation of Canibridge Edition. 11. known as the “Traditionalists. I. 25 (Toronto 1929). Case and the Statute of %Vestniinster II. and the argument seized upon for such a course of action was that there were certain defects in the Common-Law Remedial Scheme. Rep. its development into the Modem Action of Trespass on the Case would not have occurred without the influence and action on the part of the Clerks in Chancery as authorized by Parliament in Chapter 24 of the Statute of Westminster II ~ in 1285. 13 Edw. but rather as a series of Statutes enacted at one session of Parliament. The Action on the Case and Westminster II.

permitted the Chancellor to hail the defendant into Court. Oxford 1914).—Real Actions were those brought for the Specific Recovery of “Seisin. The Origins of the Actioa of Trespass on the Case. demanded payment of a debt due from an Englishman.Rev. REAL ACTIONS. and if found to be owing. 334 (1931). 68 (1956). Personal Actions consisted of those brought for the Specific Recovery of Goods and Chattels. and (C) Personal 41.Rev. FORMS OF ACTION examine him under Oath as to the debt. c. or to Personal or Real Property. Sec 46 article by Landon. the Common Law‟s development was arrested when it was beginning to get a good start. are divided into Real. 4 Oxford Studies in social and Legal History. and in the face of the established fact that the plaintiff had an Adequate Remedy at Law in the Action of Debt. § 3. Case and WestmInster II. desiring to advance the mercantile interests of the country. 98 (Edited by Vinogradoff.J. or to one‟s Relative Rights. could not take advantage of his Common-Law Remedy.Q. and hence they were not properly reducible to either of them. See Comment by Holdsworth on Plucknett‟s new• suggestion that the Statute of Westminster H (1285) was not the source of the Action of Trespass ~n the Case. II. hence the intervention of Chancery became necessary. not because there was no Common-Law Remedy. 13 Edw. and being there but a few days. and for Damages for injury sustained in respect of such property. they were brought both for the Specific Recovery of Lands. as where the captain of a ship came into an English port. Pt. Actions have been Divided into: (A) Real (B) Mixed. Actions at Common Law. wherein some Real Property was awarded. ‟ Or the King may have intervened through the Chancellor. ACCORDING to the Relief sought. 46 Yale n. The History of Contract in Early English Equity. 2 restriction of the Common Law Remedial System. 24 (1285).Q. 1. 1142 (1937).” the possession of a freehold estate in Real Property. Barbour. or Hereditaments.42 Thus. and at a time when the social and economic needs of the country demanded expansion instead of Oh. of both Real and Personal Actions.of which Meritorious Litigants were left Without Remedy at Law. c. CLASSLFICATJON OF TILE COMMON-LAW ACTIONS 9. ORIGIN OF FORMS OF ACTION 37. Real Actions included those brought for the Specific Recovery of Lands. See article by Miss Dix. Thus. Order its payment on peril of being jailed for 4 Contempt for failure to obey the Order. II. Tenements. Mixed Actions partook. the King. But such was not always the case. They included: The Writs of Right The Possessory Assizes Writs of Entry Forcible Entry and Detainer Page 58 of 736 . or for Damages for some Injury to the Person. 1 Pickering‟s Statutes at 30. 40. Large 196. 52 L. or for Damages for Breach of Contract. 38. Mixed and Personal. 47 L. but because the State of Law and Order in the country was in such a condition that an Ordinary Litigant in a Contest with a Powerful Overlord. in some degree. Tenements. and also Personal damages for a Wrong sustained. or Hereditaments.

which or~ der has been changed for purposes of presenta Page 59 of 736 . are from the subject of them distinguished into three kinds. and. by other Actions Personal and Mixed.—Personal Actions are those brought for the Recovery of a Debt or Possession of Specific Personal Property.S. treated as Real or Mixed. fee-tail. Diackstone‟s Commentaries on the Laws of England. But for general purposes. Waste was an example of this Type of Action and it lay to recover land wasted by a tenant with Treble Damages. Respecting the Bights of Persons. if. commons. and for Damages for injury in respect to it.—Mixed Actions are such as are brought both for the Recovery of Real Property. whereby a man claims a satisfaction in Damages for some injury done to his person or property. Of Wrongs. 47 “Personal Actions are such whereby a man claims a Debt. a much more expeditious method of trying titles being since introduced. wherein some real property is demanded. 672. or other hereditaments.43 writing about 1765. on account of the great nicety required in their management. are such whereby the plaintiff. we may nevertheless now use as 43. New York 1938). or of Damages for the Breach of a Contract. quae adversus eum intenduntur. Feudal Actions). or to Personal or Real Property. or for term of life. C. 44. And as these Actions grew in number and scope. And in connection with this effort. here called the Demandant. As for instance an Action of Waste.44 “Real Actions (or as they are called in the Mirror. or of Damages for some Injury to the Person. VI. the latter upon Torts or Wrongs. we go back as far as Glanvill and Bracton. Nuisances. at § „(a). and also personal damages for a wrong sustained. PERSONAL ACTION. they were often differentiated by very slight shadings of meanings. claims title to have any lands or tenements. Sec. 10 (~) (IV) ANCIENT REAL ACTIONS (I) (II) our starting point the Classification which Blackstone published to the world with the appearance of the first edition of his Commentaries on the Laws of England. The former are said to be founded on Contracts. rents. Assaults. “Under these three heads may every species of remedy by Suit or Action in the Courts of Common Law be comprised. 79. Mixed and Real. and their Remedies. 673 (4th ed by Chase. likewise. qui ox contractu vel delicto obligatus ost aliquid dare vol concedere‟ . Thus.” ~ The original arrangement of the three types of Actions reads Personal. we find that they regarded some Actions Personal which Blackstone. it should always be borne in mind that the term “classification” may and almost inevitably is bound to have different implications in Different Periods of a Nation‟s Development. Defamatory Words. a Id. Of the former nature are all actions upon Debt or Promises. of the latter all actions for Trespasses.MIXED ACTIONS. but they are now pretty generally laid aside in practice. as a result of the action and interaction which took place between the Chancery and the Three Superior Common-Law Courts. Book III. in fee-simple. which concern Real Property only. or to one‟s Relative Rights. and they are the same which the Civil Law calls „ actiones in personam. “Mixed Actions are suits partaking of the nature of the other two. and it was only natural that an effort should be made to classify the various Actions. in English Legal History. or Damages in lieu thereof. Mixed and Personal. The remedy which a given Writ afforded a Litigant was called an Action. and the inconvenient length of their process. or Personal Duty. By these Actions formerly all disputes concerning Real Estates were decided. and the like. He declared: “With us in England the several Suits or Remedial Instruments of Justice. Real.

and these Actions were called Mixed. tenements or hereditaments. as all of them were classed and Page 60 of 736 . 48. Respecting the Rights of tton. C. by Chase. These Writs to determine the rights of property and the rights of possession in a freehold.itep. Damages. Foundations of Legal Liability. or hereditaments were recoverable. with the more important (C) The Writ of Entry sur In-trusion FORMS OF ACTION actions at the top and the less important at the bottom. by one who is deforced. And the First Pleading on the part of the Demandant was called a Count. they were feudal in origin and were in number about sixty. Real Actions. as appears from the listing of certain of these Writs in the chart below: CLASSIFICATION OF ANCIENT REAL PROPRIETARY REAL ACTIONS: (1)) The Writ of Entry sur Abatement ACTIONS (Ill) Writs Ancestral Possessory (IV) Writ of Quare Ejecit Infra Termi (I) Writs of Right Proper (A) (V) Writ of De Ejectione Firmae (VI) Writ of Quare Impedit (Vii) Writ of Waste (Viii) Writ of Deceit (IX) Writ of Partition nun The Writ of Right Patent (U) (A) (B) (B) The Writ of Right Quia Do-minus Remisit Curiam Writs in the Nature of Writs of Right The Writ of Right de Rationabili Parte The Writ of Right of Ad- The Basis of Classification ACCORDING to the nature of the thing recovered. IV. made possible the settlement of all disputes concerning real estate on a reasonably satisfactory basis. Over a Period of Several Centuries running as far as the reign of Elizabeth [1558~l6O3]. c. Book III. and those founded on the Property or Right. I. varied according to the title or seizin of the Demandant. New York 1938). 39 (Nortbport 1906).~~ the existence of these Remedies. fee tail. 21T (1601). or for life. and the trial long and costly. Blackstone‟s Commentaries on the Laws of England. In the Other Group. and the circumstances of ouster or deforcenient.Bep. 46. Of Wrongs. 672. However. a vi. 10~ 77 Eng. 6 Co. available only in favor of owners of freehold estates.47 In these Actions the Party bringing the Action was known as the Demandant. while the Party against whom it was brought was the Tenant. the distinction between them being highly technical and refined. and their Remedies. Persons. tene (C) The writ of the Right of Dower (D) The Writ of Dower Unde Ni-hil Habet (E) The Writ of Formedon vows on ments.49 These Writs were arranged POSSESSORY REAL ACTIONS:—Cont‟d according to the character of interest involv(U) Writs of Entry—Continued ed. Classification of Actions In CoinmQn-Law system. 47.”4~ They were known as Real Actions because the Judgments rendered therein were in rem and awarded seizin or possession. 2 abolishment. JACKSON defines a Real Action as “one that is brought to recover the freehold in lands.TILE ANCIENT REAL ACTIONS FIRST IN ORDER OF DEVELOPMENT 10. 3 Street. Alden‟s Case. the Ancient Real Actions fell into Two Groups: in One Group only lands. and these Actions were treated as Real. There were Two Divisions of the Real Actions—those founded on Seizin or Possession. in an heirarchial scale. 073 (4th eu. claimed either in fee simple. 48 Cli. against him who is a tenant thereof. 1 (Boston 1828). tenements. as well as lands. all of which facts were factors in their ultimate 45. or hereditaments were recovered.

3 & 4 Win. 1905). after termination of a particular estate of freehold. into rights of possession and rights of property. acquired possession before entry of the remainclerman or reversioner. Actual possession is a Fact or Status. he was the owner of the Complete Title. Such rights were descendible. Paul. as their leading characteristic was the recovery of a freehold. As to all other persons except the person ousted.POSSESSORY REAL ACTIONS: (I) Writs of Assize (A) The Assize of Novel Disselsin (B) The Assize of Darrein Presentment treated with the Real Actions. 1 (St. c. in which he sued to recover his right of possession. as the case might be. Property Limitations Act. Page 61 of 736 . (A) The Writ of Entry sun Dig-seisin (B) The Writ of Entry sun Alien-ation 40. “The ANCIENT REAL ACTIONS treatment of Actual Possession as a Right. actual possession was regarded as a right distinct from the right of property and the right of possession. and as recovery of Damages was incidental. and the actual present possession. or reversioner. nothing more could have been Intended than to we have two persons Invested with rights of possession. 10 27.50 If one having the Complete Title to land was dispossessed. except by Judicial Process at the instance of someone having a Superior Right to possess. remainderman. actual possession. This Eight of Possession night co-exist with a Right of Possession In some one else springing from a Previous Fact or Status of peaceable possession. was alienable. In imputing to the peaceable possessor a Right in the Fact of his Possession. but it is a Fact or Status which implies the Right in the possessor to continue his possession until it is displaced by Judicial Process. both the Real and Mixed are generally treated as Real Actions. has been misleading. which springs from and is implied from the Present Pact of Possession. If such rights were not enforced within certain periods of time fixed by the Common Law or by Statute. divisible and descendible. 100. because It is the natural manifestation of that right As a Fact or Status it is protected by Law for reasons of public policy against displacement. subject to be defeated by enforcement of the disseisee‟s superior right of property or right of possession. ~ so (1833). being an estate in possession. which might belong to him in addition to his right of property or independent thereof. or as implying a right distinct from the right of possession. or intruder. IV. n. This left remaining in him the right of possession and the right o~ property. in which The demandant sued on his right of property. The effect of a disscisin. property and the right of possession might be in different persons while the actual possession was in a third person. abator. Conversely. and subject to determination at the suit of any one having an older and therefore Superior Right of Posses-zion. as to the person ousted. he lost one of the constituent elements of his Title. As a Fact it Is prima Jane Evidence of the Right of possession. a The Distinction Between Proprietary and Possessory Actions AT early Common Law a Complete Title to Real Estate included the ultimate right of property. As the right of 49. or a Right of property which resolves itself ultimately Into an older possession or seisin. Peaceable Possession therefore is not a Right. dew isee. IV. Real Sec. Thus session. recognize In him a Peculiar Right of Possession. but neither devisable nor assignable. the disseisor‟s Title became indefeasible as to all failing to show a superior right of property or right of pos 50. Civil Procedure at Common Law. The same rule applied in case of an abatement where upon the death of a person seized of an inheritance a stranger acquired possession of the freehold before ac tual entry of the heir or devisee. Ancient Real ActIons. or Poc sessory.” Martin. heir. Classifying the Real Actions on the basis of the nature of the Demandant‟s Title. the interest of the disseisor. the other founds it on a previous peaceable possession. Real Actions were either Proprietary. also in case of an intrusion where a stranger. One founds his right on a present peace~ able possession. This Right of Possession is provisional. the right of possession. abatement or intrusion was to convert the estate of the disseisee. the disseisor became the owner of the Complete Title. that is. (C) The Assize of Jung Utrum (D) The Assize of Mort d‟Anceston (II) Writs of Entry having lost his right of possession.

By the Statute of 32 Henry VIII. remainderman. Irrespective of any Right of Possession. it resulted in defeat. The Statute was construed as not being applicable to a descent from the heir of a disseisor. he could only invoke a Proprietary Action to establish his rights. In general. It would seem. and if not barred by the Common Law or Statute. Extra-Judicial Entry was ended by the fact of a descent cast. 179t). the disscisee night still resort to a Proprietary Action. But the descent of incorporeal hereditaments lying in grant did not take away the right of entry. his possession~ In case of being dispossess ed. irrespective of any right of possession or right of property of the original disseisee. resulted in ending the right of peaceable entry without process. when ownership in land is resolved into its essential elements. Thereafter the disseissor‟s heir could rot be ousted except by an Action asserting the disseisee‟s superior right of possession or of so FORMS OF ACTION property. 5 Statutes at Large 48. he still might regain possession by some form of Possessory Action.” thus raising the Issue of ultimate dominion. Also available was Self-Help if resorted to before descent cast. the Right of Entry was extended so that a descent from a disseisor could not have the effect of taking away the Right of Entry. If peaceable entry was not possible. when it was forcibly taken from him. Ancient Real ActIons. the continuance of the disseisor in possession after claim made was regarded as a new disseisin. 1905). Paul. Upon disseisin. as force could not be used without falling under penal restrictions. notwithstanding a want of five years‟ possession. his only course was to resort to legal redress. that the fundamental one is the right of possession.Litt. Civil Procedure at Common Law. nor Remedy by Self-Help. At hand were the Possessory Remedies in the Form of the various Writs of Assize or a Writ of Entry. depending upon the character of his case. 33. 2 5 disseisee. by summarily restoring to the ousted possessor his possession. making his Title again complete. provided he acted within the period of time in force at the time the action was brought. abator or intruder. 28Th (London. if brought within the period of time limiting such actions. the Common Law protected a person in peaceable possession of land. except where the disseisor had peaceable possession five years next after the disseisin. c. heir. Co. For reasons of public policy. by refusing to enforce in the Courts any one‟s Claim to Possession wbicb was not Superior to the flight of the actual possessor. or if. Entry by force was not only a punishable offense. 3d. by punishing any one who attempted to enforce his Rights of Possession. or a species of property based on the fact of 51. If such Remedy failed or was lost. which either included or implied the superior right of possession as incident to it or constituted the right itself. or right of ownership. In such actions the plaintiff alleged seisin or possession of a fee. c. Thus. and save his right of entry for a year and a day after such claim made. but the former occupant could by a Writ of Forcible Entry immediately be restored to possession. the disseisee could vindicate his right of possession by resort to some Possessory Proceeding. this dominion or ownership is referred to as something very different in its nature from the right of possession. limitation of Possessory Actions was fixed at twenty years. created a presumptive right of possession. abatement or intrusion. “It accomplished this In three ways: 1st. 55. It may be added that in cases in which the wrongdoer had acquired possession lawfully and then unlawfully detained it. If the Possessory Action was not brought within the time limit. however. that the right of property enforced in the Proprietary Actions is nothing more Page 62 of 736 . in the party who had interrupted the possession. by making claim at any time before the death of the disseisor. or by the Judicial Process represented in the Scheme of Real Actions.These rights of property and rights of possession were remediable under the Ancient Law by the Extra-Judicial Process of Self-Help. however acquired and however wrongful. therefore. It becomes apparent. devisee. when brought. and added that he claimed “as of right. or reversioner—was permitted to make a peaceable entry. however.52 Actual seisin or possession. which was sixty years. 109 (St. Failure on the part of the disseisee to make a peaceable entry in the lifetime of the disseissor. 24. so that such descents barred the Right of Extra-Judicial Entry. IV. the party entitled had neither a Possessory Action. Generally. the person ousted—the disseisee. might evade the effect of the descent east. ~154O]. irrespective of the method of acquisition. or from his feoffee. basing his action on his actual seisin and the wrongful act of the disseisor in ousting him. without Process of the Courta‟ Martin. ‟ The Ch.

Ibid. the said C. 2 Blackstone‟s commentaries on the Laws of England. 2 Polloek and Maitlanci. even though it falls short of the 5‟ Maitland so 5~. these other rights are restored along with the possession. When the right to possession is once vindicated. Defender of the Faith and so forth. four gardens. And unless he shall so do. the distinguished authority on English Property Law. If the technical distinction between Proprietary and Possessory actions had never developed. that justly and without delay he render unto AS. 78 (CambrIdge 1895). IV. of the United Kingdom of Great Britain and fretand King. being the older one. New York 1914). A form of the Writ of Right and a form of the Assize of Novel Disseisin appear below: FORM OF THE WRIT OF EIGHT GEORGE THE FOURTH.” ~ as distinguished from the right to possession either immediate or future. then sum mon. St Williams. “every Title to Land has its root in Seisin. notwithstanding the rights of seigniory remaining in the lord and ultimately in the sovereign. 207—215 {4th ed. GREETING: COMMAND C. it is extremely probable that the Scheme of Ancient Real Actions would have been better understood and enforced. Ownership and PossessIon. History of English Law. in~3. But from Bracton on.” ~ The superior right of possession. it follows that one cannot use or dispose of a thing which is in the adverse possession of another. and if our English ancestors had only known Possessory Actions. Sec. which came from subsequent adverse enjoyment. by good summoners. Page 63 of 736 . Personal Property. and four acres of land. in eight days of Saint Hilary.5” In England there was probably no property in land which measured up to this ideal of absolute property. has stated that there is “no action in the Law of England by which property either in goods or land is alone decided. 10 ANCIENT REAL ACTIONS 54’ 2 ideal of absolute property.of duration. unjustly deforces him. unlimitedly in point . the rights of proprietorship have been ascribed to the tenant in demesne. much less to a purchaser in fee under the Laws of the Several States of the United States. in all of the Real Actions. The explanation of this is found in the fact that the right of property in land or goods is only another name for the right of possession.. by the grace of God. shall give you security of prosecuting his claim. History of English Law. ?ollock and Maitland. And the philosophy or logic of property rights has been done no violence by ascribing them without limitation to the rights of a tenant in English law. and the other rights incidental to it. to show where______ . whether Proprietary or Possessory. 77. Ownership and Possession. and if the said AS. 54 In its strictest sense property is the right to possess and use a determinate thing. 46 (Cambridge 1895). four messauges.. and whereof he complains that the aforesaid C.D. in the parish of in the County of which he claims to be his right and inheritance.D. To the sheriff of County. with the appurtenances. but only in comparing it with the right of possession. I. truly observed. Williams. We shall see later how this failure was instrumental in bringing about the abolltion of the Real Actions. c. and which was to be protected by Law for reasons of public policy. and unrestricted in point of alienation or disposition. Thus. As the foundation of the right of ownership is the right of possession to which the other rights are primarily incidental. the Title which has its root in the Oldest Seisin is the Best Title. 26 (7th ed London e. The right of the tenant in fee has in point of fact been treated as property in the highest sense.than an older and superior right of possession. the Material Issue was the right of possession. As Pollock and definitely in point of user. 57. that he be before our justices at Westminster. c.D. by Chase. was called the right of property. IV.

211 (1st Am. and the chattels which were taken in it.. and in the meantime cause twelve free and lawful men of that visne to view that tenement. unjustly and without judgment hath diisseised him of his freehold in C. XIX. In 1879.52 1570). 9. New York 1808). c. Real Actions. 44 (3d Am. 2 Statutes at Large to a criminal prosecution of a Party who had used superior force in making entry upon land.6‟ According to Blackstone 62 a Forcible En-try consisted of violently taking possession of lands or tenements with force and arms and without authority of Law. the Statute of 8 Hen. VT. c. BOOTH. Both offenses were not only against the person turned out or kept out of possession. and have you there the summoners and this writ. that they be before the justices aforesaid. Principles of Pleading. in large measure. that he may be then there to hear that recognizance. And a Forcible Detainer consisted of keeping possession of lands and tenements in the same lawless manner. and put by gages and safe pledges the aforesaid B. 7.5° The Remedy as thus developed took the form of a summary restitution of the land in question by the Justices of the °° or by Action of the Court of King‟s Bench. This proceeding. Washington. ready to make recognizance thereupon. if he shall not be found. shall make you secure to prosecute his claim. ed. WITNESS. and the same tenement with the chattels to be in peace until the first assize. c. and summon them by good summoners. II. &c. &c. Action. To the Sheriff of County. hath complained unto us that B. and as such have exerted an important influence on our Modern Procedure. 2 STEPHEN. and therefore we command you that if the aforesaid A. at the assize aforesaid. but were wrongs against the King. thus aiding in their gradual deterioration. 1900).63 And the Ancient English statutes regulating Forcible Entries and Detainers.. Ch.C. have been recognized or reenacted in most American States. I. Page 64 of 736 . or. c. his bailiff. When authorized by Statute. And have there the summoners. with such modifications as might be necessary to meet local conditions. was early used as a substitute for the more cumbersome and highly technical Real Actions. 3 Statutes at Large 121 (1429) was repealed except as to its criminal provisions. D. under which the disseisee might be restored to his Jand.58 it originated as an incident 53. FORMS OF ACTION fore he bath not done it. within thirty years last past. ed. the names of the pledges.. FORM OF THE ASSIZE OF NOVEL DISSEISIN EDWARD THE FIRST. and this writ. 5 RIch. when our justices shall come into those parts. Forcible Entry and Detainer AT Common Law the Remedy for a Forcible Entry or a Forcible Detainer was not recognized as a Civil See Statute of 240 (1381). GREETING: A. and their names to be put into the writ. ourself at Westminster. As enacted and construed these English Statutes on Forcible Entry and Detainer furnished a Popular Remedy for a period of five hundred years. then cause that tenement to be reseized. King of England.

59. Faweet. § 36 provides that: 1No writ of right patent. dilatory and highly technicai character of the proceedings thereunder. 67 (1007). writ of right close. together with the burdensome cost incidental to their prosecution. by reason of the almost imperceptible distinctions between many of them. the Old Writs 67 of Dower were abolished by the Common Law Procedure Act. and Forcible Entry and Detainer. 27. 8 Hen. in the per. In the first quarter of the Nineteenth Century. e. writ Of right upon disclaimer. C. as an incident of the general wave of Governmental Reform which swept over England. writ of right of advowson. Writs of Entry. in consimili caRs. dum fuit infra aeta” tam. The Defects in the Proceedings involved in the various Real Actions and the abuses which grew up around them had originated in the Courts and for years had gone on uninterrupted by any attempt at Parliamentary Reform. 4 Sec. writ of quod permittat. or ntort d‟ ancestor. 148 (7th ed. 11. and Impedit. See large 121 (1429). in oaeit proviso. ciii in vita. Oxford 1775). or In reverter. 11 MODERN REAL ACTIONS The Decline of the Real and Mixed Actions 53 their Inadequacy as Remedies for the redress of alleged wrongs involving Title or Possession of Real Estate became evident. 80 EngItep. Also abolished by the same act was the Writ of Quczre Impedit. c. Bex v. writ of right do rationabit parte.°° the two Writs of Dower were temporarily preserved. writ of quo jure. were swept aside. TUE MODERN REAL ACTIONS 11. writ of formedon in descender. 1834. and finally. 6 Statutes at Large 418 (1589). in remainder. 05. rely. The Action of Ejectment WHEN it finally became clear that the so-called distinction between the Proprietary and Possessory Page 65 of 736 . writ of escheat. BY reason of the large number of Writs in the Real Actions. writ de eonsuetudinibug et serviti-is. writ of no injuste vexes. Dower and Partition. ad oommunem legent. writ of entry stir disseisim in the quibus. was inapplicable for such purposes. c. History of the Common Law. c. It is therefore not surprising to find that in 1833. and 21 Jae. As a widow claiming dower could not institute an Action of Ejectment until after her dower had been set out. The Modern Real Actions included Ejectment. 27. 15. writ of right of ward. writ of right In London. the latter being preserved to try disputes about Advowsons. London 1794). II. 31 Ella. VI. writ of entry sur alienation dum futt non compos menus. VIII. IV. The Statute provided that some sixty actions. er undo nihil h-abet. In 1860. writ de essendo qitietum de theolonio. 7 Statutes at Large 272 (1623). writ de rationabilibus divisis. writ of entry ear intrusion. e. or Stir ciii ante divor Exceptions were made Writ of Right of Dower. Disseisin. 11. by the Real Property Limitations Act. writ of o. 3 & 4 Wm. writ of seeta ad rnolendinum. 296— 301 (5th ed. IV. writ of right quja dominus remisit curiam. by reason of the long. 65. 2 Statutes at Large 339 (1391). CL Hale. Statutes of 15 RIch. 9. darrein presentment. Commentaries on the Laws of England. Blackatone. a Movement for Procedural Law Reform got under way. as Ejectment. c. with few exceptions. wi-it of right in capite. 59 (1879).ssL—e of novel disseisin. writ of eessavit. nuisance. 64.°5 should not be brought after December 31. 2. 42 & 43 Vict. which now came to be used in lieu of the abolished Real Actions. c. in the per and ciii. The Statute of 3 & 4 Wm. 3 Statutes at 90. or in the post. § 36 (1833). 03. ear Ciii in Dita. dum fi4t in prisona. ciii ante divortuum. Trespass to Try Title. writ of mesne.” the Real and Mixed Actions. specifically named. with the establishment of a New Statutory Form of Action to serve as a substitute. I. c. June tztrum. 99. with the passage of time.

Actions was largely illusory. see Maitland. yet more Adequate Remedy for the redress of Wrongs to Title or Possession— the Action of Ejectment.°° The Action. C. The details of this development will be set forth fully in the Chapter on the Action of Ejectment.73 Statutes at Large 149 (1833). as the generally recognized mode of Trying Title or possession in the Several States of the United States. that you could not Try Title without also trying possession. 69. without violating the Common-Law theory that it could be used only to protect the possession of non-freehold estates. FORMS OF ACTION Martin. „The Forms of Action at Common Law. 27. § 26. or eauea matri.~° 1854 ~„ and 1860 72 the Procedure in the Action was simplified.nonii praelocuti. 15 & 16 Vict. writ of disceit. or a quare impedit. writ of quad ci deforceat.itia. This move by the Common-Law Courts was hastened by the threatened intervention of Chancery. Lecture III. And the change came about not by developing a New Remedy. writ of covenant real. See Chapter 10. and the Case was tried according to the Principles of Ejectment as developed at Common Law. Under the Common-Law Procedure Acts of 1852. Modern Real Actions. c. & 18 Vict. Ch. 92 Statutes at Large 285 defendant 4ppeared. besaiel. V. or writ of dower unde nihU habet. C. tium. writ of warfl rantia chartae. 23 & 24 Vict. And this same Common-Law Action has been generally adopted. the Fiction in Ejectment was abolished. 36. subject to modification in its Form and Procedure.”” Although the Remedy under this Act has lost its Earlier Form. it is still governed by the principles underlying the Action as Developed at Common Law. or to any other person entitled to defend the Action.” °~ More specifically. 100 Statutes at Large - in the case of a a Writ of Dowa Writ of Quare 54 800 (1860). the Court made up an Issue. „IL 17 70. The Action of Trespass to Try Title Page 66 of 736 . TV. Civil Procedure at Common Law. tresaicl. 76. the Action of Ejectment was developed out of the Writs of Quare Ejecit In Ira Terininum and Dc Ejectione Firmae in favor of the owners of non-freehold estates. writ of aid.nent. cosinage. writ of entry quare ejecit infra terminum. writ of entry ear abatement. § 166 141 (St. Paul 1905). 125. as thus developed by the Common Law. real or mixed. writ of curia elaudenda. 126. If the 08. (1852).) and no plaint in the nature of any such writ or action (except a plaint for free bench or dower). but “by adapting the well known Process and Proceedings of Personal Actions to the Trial of Issues relating to ouster and disseisin from real estate. or writ per quae seri. and „ zo other action. C.” 06. 1884. so that the Action was directed to the person actually in possession of the property in dispute. was excepted from the sweeping effect of the Statute of 3 & 4 Wm. The Pleadings are governed by Rules of Court under General Orders made in 1883. shall be brought after the 81st day of December. 94 Statutes at Large 794 (1854). and continued unchanged until 1852. § 36. 37 (CambrIdge 1948). (except a writ of right of dower. And so the Action continued until the Supreme Court of Judicature Act of 1873. c. 2 the slate was cleared for the entry of a far simpler. or nuper obiit. and that these Actions were needlessly technical and very expensive. and it was provided that in the Default of Appearance such person would be dispossessed.~~ under which the Action was “commenced by a Judicial Writ of Summons upon which the plaintiff indorses a Statement of his Claim with the Relief asked for. writ of partition. or ad terminum qui praeteriit. or an cject. 01. Through the use of the famous Fiction in Ejectment it ultimately became available to the holders of freehold estates as well. to which the defendant makes a Statement of his Defense. For an explanation of the intricacies involved in claims for dower at Common Law. writ of waste.

V.” where it continued to 1852.C. was entitled to a Writ of ilabere Facias Possessionem and Damages Abolished in South Carolina in 1873. the Action was directed against the actual tenant of the land. Wyman v. South Carolina and Texas. but if the defendant ousted the demandant. S2. C. Martin. 4784. See. 68 (1873). ¶5.~~ it appeared in Alabama in 1821. Clays Writs of Entry Digest of the Laws of Alabama.Stat. Conners. C. 82 Damages for Mesne Prof 70. This use of Trespass to Try Title was brought about by indorsing on the Writ of the Action for Trespass a notice that the Action was brought to Try Title. Taft. Modem Real Actions. 96 (1882). 26 N. Brown. 5~ 3. at Large 860 (1860). also. 57 Tex. 5. although claiming an estate of less than a freehold. Writ of Dissejsin Page 67 of 736 . also. 11 (Boston 1828). 55 Judgment for Damages. 78. And. £0. C. 11 at Large 170. 50 Me. 36 & 37 Viet. but recovery resulted only in a 73.83 Of course the Pleadings in the Action were greatly simplified over those which prevailed in England prior to the Era of Reform.1879. 67 (1857). Johnson v.code. as well as for Damages. lay -v. In Texas. 81. but it was not sufficient as against one with a Superior Title. the plaintiff if successful. 320—340 ~Tuslcaloosa 1843). 4. the defendant claimed that he had an immediate Right of Entry. being maintainable even on an Equitable Title. in order to try the right.8‟ Generally. its finally became recoverable in the Action in Massachusetts. it was first introduced by Statute in South Carolina in 1791. that the land he entered upon was owned by himself. Jackson. 586.THE Action of Trespass to Try Title has been used in three states. Trespass to Try Title was long the accepted and exclusive Mode for Trial of disputed Titles. Paul 1905).Tex. & 24 Vict. 100 stat.Stat. was adopted in Maine. and available to Try Title irrespective of occupancy. Elliot.1860. A Treatise on the Pleadings and Practice Ia Real Actions.8° In the two latter States at least a life estate was necessary to support the action. Mere possession was sufficient to support the Action as against a wrong-doer. In general. As developed there it was broader than Ejectment. art. Thurber v. Derived from the Action of Trespass Quai-e Clausem Fregit. See. And if the entry had ousted the plaintiff. 74. the Possessory Writ under this name. 143 (St. except where the Statute provided otherwise.~~ being substituted in the place of Ejectment. or by some one under whose authority he acted. 1852. 134. 139 (1863). 19. (12 Cush.C. Bev. c. ~ at which time it was superseded by an Action in the Nature of an Action of Ejectment. ¶2.) 448 (1853). the defendant might enter a Plea of liberuni tenementwnt.S. § 170. the Trial was governed by the principles of Trial by Ejectment. Massachusetts and New Hampshire. 17.1873.79 MODERN REAL ACTIONS IN a modified Form. 1.Stat. S. Alabama. Ala. Civil Procedure at Common Law. 154. Thus the Right of Entry came to be the Controlling Issue in the Action of Trespass. Rev. 2209. Gen. 23 Sec.Mass.H. c. 6. as in Trespass. 66 Mass.Stat. that is. the latter might treat the defendant as a disseisor.

145 (2d ed. c. See. were developing along parallel lines. Paul 1905). CIt 2 (A) CD) (E) (B) (C) Debt Covenant Account Special Assumpsit and Possession Awarded. 30 Eng. 84 It was commenced and prosecuted like a Personal Action. Martin. 147 (St. c.85 But in 1888. 8° UNDER the Statute of 3 & 4 Wm. 84.) 265 (1850). also. Modern Real Actious. 872. 27 § 36. e. and was available onl~‟ on the basis of a Legal Title. (6 Cush. IV.M By Judicial Deci- „IRE MODERN PERSONAL ACTIONS sion or by Statute in a few States. 87 And the flexibility of the Procedure in Equity gave it an increasing preference over the Remedy at Law. the Parties involved suffered a decline with the consequence that the Modern Personal Actions emerged as a are entitled to have the Right of Trial by Jury. Raymond v. Ejeetment and Adverse Enjoyment. uity Practice of accepting a Verdict at Law FROM the middle of the Thirteenth Cen on such an Issue.THE Writ of Disseisin long served in Connecticut as a substitute for the Common-Law Actions of the Writ of Right. 122. Mundy v. According to Martin. 87. V. in the enforcement of such Statute. the Action was superseded by a Statutory Form of Procedure. Civil Procedure at Common Law. resort may still be had to Common Law and Equity for Remedial Relief. 60 Mass. Mundy. Audrews. 89. 654 (Albany 1870). as.Jirn. and what the Statute of 3 & 4 Win. 86. where the Right of 12.18S8. c. which is in accord with the early EqNew System of Actions. But resort to the Action became constantly less frequent because Chancery had long since intervened to exercise Concurrent Jurisdiction with the Law Court in protecting dower rights. 56 1883). 37. In many States a Bill in Equity is had for Dower under which dower is admeasured. 73 Statutes at Large 149 (1833). 27. General Assumpsit Page 68 of 736 . Dower Damages are Assessed 83. Dower. the Statutes fail to cover the Point in Issue. 2 Ves. IV. Ex-clusive Jurisdiction over we now speak of as the Modern Personal CommonPartition Proceed-ings fell to the Court of Chancery. Philadelphia FORMS OF ACTION (1789). Law Actions. 554 (1793). a Dower was one of the Actions excepted from abolition.Stat. While in general the right to dower is governed by Statute which has superseded the Common Law. it resembled Ejectment closely and was frequently called by that name. § 36. 85. Gcn. the Ancient Real Actions or Statutory Proceeding. Proprie-~ Partition WITH the abolition of the Writ of Parti-lion by tary and Possessory in Character. the Ancient Real and Mixed Actions. eleven in number. where.89 tury to the Reign of Elizabeth (1558—1603). Scribner. § 175. e. 7.Rep. for any reason. From the close of the Reign of Queen Dower is disputed in an Equitable Elizabeth in 1603. 73 Statutes at Large 149 (1833). Tyler. the Writ of Entry and the Writ of Ejectment.

Curtis. Detinue. of real and per- are brought for the redress of wrongs. or to Relative Rights or to Personal or Real Property. as Maitland points out. or to one‟s relative rights. 1144. Equity assuming Jurisdiction in such case.Law. See 90. The most common of these Actions are Debt. 12 MODERN PERSONAL ACTIONS Personal Actions. as indicated in the Chart above. Civil Procedure at Common Law. Curtis v. Personal Actions are divided.°3 Of the Forms of Action which have been enumerated above. Trespass on the Case. 2 Bro. according to their nature. The former are Actions based upon a Contract. some writers put Detinue on one side of the line and some on the other.” There were. into Actions Ex Contractu and Actions E7x Delicto. the right to recover for which is not based upon Contract. This attempt to distribute our Personal Forms under the two heads of Contract and Tort. 92. Part III. Express or Implied.a Juris-diction which it had exercised concurrently with the Law Courts since the days of Eliza-beth (1558—1603) Y° In the Several States of the United States the Action of Partition at Common Law was never recognized in its Ancient Form. with the Modern Common-Law Actions emerging as the principal System of Actions. in England. 1902). Trespass. Modern Real ActIons. In some States the English Statutes have been adopt ed with some modification. found its way into the Colonies with the main body of the Common Law. or for Damages for the Breach of a Contract. of course. These Personal Actions were those brought for the Recoveiy of a Debt. or to personal or real property. 1145 (2d ed. 183 (Northport 1897). for some Injury to the Person. or for Tort.C. Covenant. 91. has never been very successful or very important. but upon Tort. see Martin. It was superseded by the Bill in Equity or some Form of Statutory Proceeding.C. C. Forcible Entry and Detainer THE Ancient Summary Proceeding of Forcible Entry and Detainer. Me (II) Actions Ex Delicto: These actions. 151— iSS (St. Philadelphia 1893). IV. But in some Form or Other the Remedy still prevails in most States. and include also actions for the recovery sonal property: (A) Trespass (B) Trespass on the Case (C) Trover I 487 (5th ed. Classification ACCORDING to the Nature of the Lia are based upon a contract or obli gation: Personal Property. the possession of specific per-sonal property.92 See 7 Eneyel. C. as is indicated in the preceding section. include Actions that are brought for the Recovery of a Debt. 57 Page 69 of 736 . Eisphanj Principles of Equity. (D) Ejectment (E) Detinue (F) Replevin Sec. 631. no Ac-tions at Common Law for the Partition of But from the close of Elizabeth‟s Reign [1603] the Ancient Real Actions fell into a decline. For the characteristic features of the remedy as used In the United States. or Damages for some injury to the person. Damages for the Breach of a Contract. In the classification of actions as Ex Contractu and Ex Delicto. ~ 179.Encycl. the Action of Ejectment has been classified as a Real Action. while the latter are for injuries. Trover and Replevin. as well as a Personal Action. Pau) 1905).Plead. 21 Am. & Eng. as developed bility the Personal Actions are classified as: (I) Actions Dc Contractu: The actions at Common Law and by Statute. & Prac. V. Assumpsit. 29 Engitep.

which. Trover. The Hhlary Rules and Their Effect on Negative and Affirmative Pleas under Modern Codes and Practice Acts. (2) Actions of Contract. for the history and effect of the Hilary Rules in the Several States of the United Statog. undertook to wipe out the distinctions between Law and Equity. on Classifications of Actions. § 1.—developed out of the Action and Interaction which. Even so the Personal Forms of Action as developed at Common Law remained substantially intact. Equity and the Forms of Action at Common Law 369 (Cambridge 1910). In some of these cases the Classification has been maintained by 93. and (6) Public Actions. also. Torts. 1920).Q. 95 (1929). The Decline of the Modern Personal Actions THE Personal Actions. Special Assumpsit and General Assumpsit. but. 2 Page 70 of 736 . 571 (11th ed. 13 Edw. the duty imposed by Law so resembles the duty assumed by Contract that they have for convenience been included in Actions Ex Contractu. (5) Actions of Status. as.Rev. according to one view. iv. It was thus left for the final blow to be delivered by the Supreme Court of Judicature Act of 1873. See. by establishing a Single Court with both Law and Equity Jurisdiction. Detinue.°~ and the Rules promulgated under its authority. 1 Cambridge L. In others. and included the Actions of Debt.J. 261 (1923). the Process in the Personal Actions was made uniform. Under the Uniformity of Process Act. (Los Angeles & Chicago 1911). although clearly not so arising.L. As the Old Real and Mixed Actions declined these Personal Common-Law Actions naturally came into wider use. 1 Statutes at Large 190 (1285). c. was given considerable impetus. Introduction. treating the Action as if arising on Contract. 73 Statutes at Large 272 (1833).Y. Pollock. as a parting tribute to the Old Form. also Trespass on the Case. which. They were designed to limit the Scope of the Various General Issues in the Actions. Statutory Form. C. was characterized by the requirement that the Pleadings should include by name one of the Recognized Forms of Actions.The above Classification of all Personal Actions as Ex Contractu or Ex Delicto cannot be supported on principle. see Reppy. I. 6 N. 58 FORMS OF ACTION Issue a defendant was restricted in his Proof to offers of Evidence having a logical ten dency to deny the Material Allegations in the Declaration. so that Ch. over a Period of Several Centuries. For the history and effect of the Bilary Rules in England. following the lead of the Code Reforms in the United States.tJ. Covenant. Replevin. Their Supremacy and the Procedures connected therewith long stood unchallenged. and to restore the Ancient Strict Common-Law Theory that under a Plea of the General 94. Trespass and Ejection. 95Promulgated pursuant to S & 4 Wm. the failure to pay a Debt imposed by Custom. But in 1834. directly or mdirectly. which was extended in 1875?~ This Statute not only abolished the CommonLaw Forms of Action. according to the nature of the Cause of Action. (3) Actions on Non-Contractual Obligations. as an Incident of a demand for improvement in Legal Procedure. the development of which. Judgment or Statute. Ma~tJan~l. in general were of later development than the Real Actions. 96 enacted in 1832. 24. see article by Holdsworth. for there are many duties imposed by Law. Account. for instance. and he could not offer Evidence of Defenses going to dispute liability. 1 Standard Encyclopedia of Procedure. But the effort did not stay the Movement for Reform. London Actions at Law or in Equity may be classified. the Hilary Rules °~ were promulgated. took place between the Chancery and the Three Royal Superior Courts without the aid of any Legislative Enactment. A second assault upon the Status of the Personal Actions came in 1852 when the Common-Law Procedure Act97 eliminated the requirements that the plaintiff should mention in any Summons any Form or Cause of Action. The New Rules of Pleading of the }Iilary Term. as (1) Actions of Tort. ~ 14. The Old Form of Writ was abolished in favor of a New. by the power granted to the Chancery Clerks by the Statute of Westminister II (1285) ~M while others have either minimized or discounted the effect of this Statute on this development. 42. Appendix A. (4) Proprietary Actions. a Breach of which constitutes neither a Tort nor the violation of a Genuine Contract.

77 (1875). e. the student must clearly distinguish between a Cause of Action and a Form of Action. 92 Statutes at Large 255 (1852). for until a sufficient number of Writs had been issued to develop a body of Substantive Law. 10 (cambridge 1948). the connection between the Charge in the Original Writ and the Charge in the Declaration. it immediately becomes evident why any attempt to define what constitutes a “Form of Action. TV. It appears further that the student. the~. At the very moment the first application was made to the Chancellor for the First Original Writ. the dependence of Right upon Remedy. under which each Form of Action came to stand for a more or less Specific Theory of Liability. the Development of the Modem Real Actions. that there was more than One Set of Common-Law Actions—the Ancient Real and Mixed. the ascendency and decline of the Ancient Real Actions. 2 Wm. and which required an exercise of discretion. is practically meaningless. e. thus depriving the CommonLaw Courts of the power to coerce obedience by orders in personam. 66 (1873). Leeture 1. 15 98. it became one of a class known as the Writs of Course (brevja dc cursu).” in advance of such a survey. should realize that the Forms of Action were not created at one stroke out of pre-existing raw materials.‟ 9°.. Against this background only is it practicable for the student to draw any clear-cut conclusions as to what constitutes a “Form of Action. were known as Magisterial Writs (brevia magistralia) ~2 This latter type of Writ in the beginning was often varied to meet the varying circumstances of the Cases disclosed in the Page 71 of 736 . no Cause of Action could exist except as an incident of the issuance of some Form of Writ. 39. the effect of the Provisions of Oxford in 1258 in destroying Equitable Remedies based on earlier Common-Law Writs not of course. TIlE EFFECT OF TIlE DEVELOPMENT OF THE FORMS OF ACTION The Forms of Action at Common Law. Ancient and Modem in mind. the various theories concern- Sec. that they grew over a period of Several Centuries. & 16 Vict. and preparing the way for a vast expansion of Equity Jurisdiction. it now appears that the student. and came to be one of whether he had a Cause of Action under the Law of England. the Classification of the Ancient Real Actions as Proprietary and Possessory. the story of the Original Writ and its creation and effect. 9. 72 Statutes at Large 115 (1832). 13 EFFECT OF DEVELOPMENT ing the effect of the Statute of Westminster II (1283) upon the Writ System. resulted in the Creation of a Formulary System of Procedure.. 38 & 39 Yhet. should first have some appreciation of the effect of the Norman Conquest in Centralizing Justice in the Crown. 8. WITH a view of the Historical Development of the Common-Law Actions. Maitland. both Ancient and Modern. the Power of Chancery to issue New Varieties of Original Writs.. 36 & 37 Vict. and the Modem Parsonal Actions —the latter being almost completely substituted in lieu of the former after the Reformatory Legislation of 1833. e. Writs which were issued upon application to the Chancellor.” The first step in this direction ought to be that of drawing the student‟s attention to the distinctions between a “Form of Action” and a “Cause of Action”. 97. 99. 1. 59 A Cause of Action and a Form of Action Distin gwished TO fully understand the Common-Law Forms of Action. before attempting a definition. Thus. it might be urged that there was no distinction. 76. the emergence of the Modern Personal Common-Law Actions.the question in England ceased to be whether a plaintiff had a Cause of Action at Law or a Suit in Equity. 13.organization and Development of the Superior-Common-Law Courts and their relation to the Local Courts and Franchises. and finally. Once a given Writ had been used enough to find a secure place on the Register of Writs. c. The Development of the Forms of Action. as a condition precedent to an understanding of the Forms of Action. Such Writs were issued as of course to any applicant upon the payment of the appropriate fee.

9. at 8. Pursuing his thought. The plaintiff may therefore have failed for either of two reasons. ilepends upon and is prescribed by the Substantive Law applicable to the Specific Facts of the Particular Case. 4. If. 10. Ejectment. in speaking of the early Common-Law Scheme of Remedial Action. As he conceived the matter the Remedy (remedium) was in exact equilibrium with jus.4 he attempts. however. 3. Professor Maitland suggests. or second. Id.” therefore. Lecture 1. Failure on the part of the plaintiff to achieve this end meant because he had omitted from the Statement of his Cause of Action an Allegation required by the Substantive Law as essential to his Cause of Action. With the greatest defer3. whereas the phrase “Form of Action” goes to the Theory of Liability. 4 (Cambridge 1948). However this may be. that is. Quare Impedit. There may be as many Forms of Action as there are Causes of Ac tion. if A ousted B from Blackacre. Ch. exception must be taken to this statement. observed. he might utterly fail in the enforcement of his right. for as yet. the net result of the issuance of Writs of Course and Magisterial Writs was to develop a well-defined body of Substantive Law. he still would have met with defeat. C. quite properly.” In other words it is descriptive of the technical Mode of Framing the Writ and Pleadings appropriate to the injury and to the theory of liability. failure on B‟ s part to allege Title would result in a failure to state a good Cause of Action. the distinction between a Cause of Action and a Form of Action became vitally important if the plaintiff was to be successful in the statement of his Cause of Action. first. Trespass. or. conceivably. 3 60 Street. Writ of Entry. as previously observed above. Replevin. because he has not presented his Cause of Action in the category of liability as called for by a Specific Form of Action. tion one of the Allegations required by the Substantive Law as essential to the statement of his Cause of Action. at the inception of his treatment. that there were incidental differences between the different The Forms of Action at Common Law. The Practical Importance of Distinguishing Between the Different Forms of Action IN Maitland‟s famous book on the Forms of Action at Common-Law. To illustrate. but had selected as his Form of Action Trespass to 2. Covenant. it merely involved a selection of those Allegations required by the Substantive Law as essential 3 to the Statement of a Specific Cause of Action. 2. Mort d‟Ancestor. by failure to include in his Declara. And once such a body of Substantive Law had been developed. as of then. Tot erunt formulae brcvium quot stint genera actionum. Form had only served as a procedural device for securing conciseness in the statement of the Grounds of Action. 2 Real Estate. The phrase “Cause of Action. Thus. the proper Form of Action for B to institute would be Ejectment. Debt. the plaintiff had stated all the Allegations required by the Substantive Law of Real Property as essential to the Statement of a Cause of Action in Ejectment. the plaintiff must state the Combination of Facts or Events on which he relies in such a manner as to invoke one of the categories of liability represented by what we cali a “Form of Action. Detinue. FORMS OF ACTION that his Action was dismissed. it might be possible for a plaintiff to select the correct Form of Action to fit the particular combination of facts or events presented in his Case and yet. Since. III. And the fact that B has selected the Correct Form of Action—Ejectment—would not save his Cause. Case and Assumpsit—”is a choice between Methods of Procedure adapted to Cases of different kinds”. Foundations of Legal Liability. to explain or define the Forms of Action by pointing out that the choice between the various Forms of Action—Novel Disseisin. under the Substantive Law of Real Property B was required to aliege Title. Ouster and Damages in order to state a good Cause of Action in Ejectment. a choice between different theories of liability as represented by the various Forms of Action. however. It is rather. ence to such a distinguished scholar.” then had to do with a theory of liability. where there was a Right of Action there was a Form of Action to vindicate an Alleged Wrong. Form was the servant and had not become the master. 29 (Northport 1900).plaintiff‟s Petition for Relief. Forms of Action with respect to: Page 72 of 736 . Bracton. Bracton‟s view was justified. Selecting a “Form of Action.

a particular Mode of Pleading. C. It is quite possible that a litigant will find that his Case will fit some two or three of these pigeon- Page 73 of 736 . the Assize of Novel Disseisin. an Essoin might be granted under which a party might betake himself to his bed for a year and a day. in an earlier time it was still possible that the issue could be determined by Trial by Battle.~ (II) Process. to which the ~‘ Sec. if he cannot be found. Nil Debet in Debt. there being no discretion. may he be outlawed? This barbaric Mode of Procedure was not applicable in all Forms of Action.—Some actions were susceptible to greater delay than others. c. (III) Pleading. and. an end made possible by the use of a Fiction previously explained.—}Iere the question is raised as to whether a Judgment may be obtained against an Adversary who is persistent in his contumacy. a few Issues were treated by the Judges who heard Witnesses. each has its own Precedents. the Statutes of Limitations varied according as the Form of Action fell in the Contract. in the Oldest Farms personal appearance of the parties was required. a particular Final Process. B. during which period of time the Action was Suspended. In at least one action. of course. or he may be forced to find gage and pledge for his Appearance. 61 (V) Mode of TriaL—By the time the Forms of Action had reached a Status of Maturity. But there might be a Trial by a Grand or Petty Assize. it is suggested that each Form of Action has some Rules which are peculiar to it. And the seizure of the thing in dispute varied with the Form of Action chosen. Attorneys being appointable by the King‟s permission. his bailiff might be Attached. observes Professor Maitland. Again. by Tyler. And finally. every type of excuse being allowed for the nonappearance. depending upon what choice of Action was made. a particular Mesne Process. a short or a long Essoin being granted. In the event the defendant proves contumacious may one have his body seized.—With respect to this topic. of course. I. as of course. that is that the General Issue in each Form is different.—Here it is pointed out that sometimes the defendant‟s Appearance is compelled by a Summons and sometimes he may be Attached.Law courts sec Stephen. Professor Maitland declares that “a Form of Action” implies “a particular Original Process. and in others Nul Tort or Nul Disseisin. (VIE) Dilatory Character of Some Actions. a Fine or Imprisonment? These may differ with the Form of Action. the chief Mode of Trial was by Jury.—Ta the above we may add that the Measure of Damages differed.—If the plaintiff secures a Judgment how may it be enforced? On Execution may the plaintiff be placed in possession of the property in dispute? May the defendant be imprisoned or outlawed. in the Older Forms. as for example. although the tendency was in that direction. or. (V~) Measure of Damages and the Period of Limitations. (VI) Judgment. Each procedural pigeon-hole contains its own Rules of Substantive Law. 1892). (IV) Judgment by Default. 40 (3d ed. may he also be punished for his violation of the Law. and.(I) Jurisdiction of the Courts. Washington. Thus. Non Assumpsit in Special Assumpsit. of Trial. EFFECT OF DEVELOPMENT answer seems Yes in some Forms of Action and No in others. But further to a very considerable degree the Substantive Law administered in a given Form of Action has grown up independently of the Law administered in other Forms. and it is with great caution that we may argue from what is found in one to what will probably be found in another. Such Actions were subject to great delay. Property or Tort Field. and if so. of Judgment. A Treatise on the Principles of Pleading in Civil Actions. or may he only be distrained? In addition to satisfying the plaintiff‟s demand. what shall be the nature of such punishment—an Amercement. Not Guilty in Trespass to Realty.—Under this heading Professor Maitland observes that in most Civil Cases each of the Three Royal Courts was equally competent as to Jurisdiction. Having concluded his story of the incidental differences between the different Forms of Action. 13 For expansion or the Jurisdiction of the ThreO Common.

or to invoke the correct theory of li ability represented in the selection of a Specitic Form of Action. as Professor Maitland says. under the Single. as to Matters of Fact. and not only in respect of the Facts alleged. although the two are so intimately associated that it is easy to miss the distinction. it was not and could not be so until enough Writs had been issued to create the Forms of Action and a body of Substantive Law. and take such comfort as he can from the hints of the Judges that another Form of Action might have been more successful. A Variance between the Declaration and the Proof occurs when the plaintiff has misunderstood the actual state of Facts or has over-estimated his ability to prove what he alleged. But this was not so in the beginning. the Proof must correspond with the Facts alleged. A was no longer to sue in the Form of Action formerly known as Trover. Lastly he may find that. Thus. The Misco‟ itception of the Form. Thus. Formless Form of Action. 5 (Cambridge 1948). The Forms of 62 Lecture J. second. but in order to State a Good Cause of Action in the Nature of an Action on the Case. he must play the rules of the game that he has chosen. Act of Conversion. if the plaintiff Charges in his Declaration that the defendant took a black horse. on the one hand. Two Inflexible Rules of Pleading grew up. in each Form. Drawing up a description of the incidental differences between the different Forms of Action or setting up a Classification of the Forms of Action after the fact may serve the purpose of assisting in the identification of the Actions as finally developed or it might have aided the Lawyer as a guide in the selection of a Form of Action. which will often be a choice between the old. FORMS OF ACTION classificatory process that was or could be applied to pre-existing materials. Maitlanci. 4. he will have a choice. the Forms of Action remained. For a Variance between the Declaration and the Original Writ.” G It may be admitted. Or again he may make a bad choice. The plaintiff‟s choice is irrevocable. varied with the different Forms of Action. Judgment and Execution. rapid. therefore. The same conformity was required in respect of the legal principle invoked. the modem. and Damages. he cannot succeed as he is guilty of a Variance between the Charge in the Declaration and the Proof at the Trial. cumbrous. 7 Such Rules originated out of the fact that the Jurisdiction of a Specific Court was limited to the identical case as authorized by the Original Writ and developed by the Declaration. which could be taken advantage of by a Motion For a Nonsuit. he Ch. plausible as his Case may seem. 2 Page 74 of 736 . or to aid a beginning student in understanding what constitutes a Form of Action prior to the time he has traced the step-by-step process by which these Forms of Action finally assumed Definitive Form. that the Charge proved at the Trial must conform to the Charge in the Declaration. but neither of these steps seems calculated to define a Form of Action. a Plea in Abatement was the proper procedural device. these incidental differences in Procedure were removed and. is not the Law of Pleading and Practice. The proof of that is that when. on the other. it just will not fit any one of the receptacles provided by the Courts and he may take to himself the lesson that where there is no Remedy there is no Wrong. and not a choice between different Methods of Procedure or relief. that the Formulae of Pleading the Cause of Action and Defense. these Forms of Action were not the product of a I. costly.. he was required to allege Possession or Right to Possession. fail in his Action. if B converted A‟s watch. cheap. Action at Common Law. And all this merely emphasizes that a choice between the Various Forms of Action was a choice between different theories of liability. If that be so. A list of the incidents of the Forms of Action and an effort at classification both necessarily come after the fact of Development became a reality. in each Form of Action. and at the Trial offers evidence that the defendant took a white horse. It was the theory of liability which was the keynote in Selecting a Form of Action and not the Incidental Differences in Procedure. all the Procedure in all Actions was reduced to uniformity. under our Modern Codes. first that the Charge in the Declaration must conform to the Charge in the Original Writ. The essential differences in the Forms of Action were therefore in the Allegations necessary to show the Right of Action. But a plaintiff may still lose although he knows the Facts of his case and is able to sustain the Burden of Proof. the incidents of Procedural Difference probably developed in point of time long after the theory of liability had assumed its full play. and even the Methods of Trial. The Law of the Forms of Action.s of Action AS an incident of the development of the Forms of Action.holes.

373 (1st Dep‟t 1924). 8 In such a situation the plaintiff failed.Ct. 193 (1725). the Pleadings and Proof show that the defendant. U. 475. it is not possible to declare in Tort and recover for a Breach of Contract. because the Pleader. the Action is misconceived.Rep. 158 U.S.Eliz. 1. 219.Y. 210 App. 89. as he is relying upon a theory of liability for conversion which has no application to Trespass. Mitchell v. So. Rep. the plaintiff cannot recover. 8 Mod. stating a case within the Law applicable to Trespass. whereas his right to recover was referable to an entirely distinct Doctrine of Law as represented by the Action of Trover. Clarke. It follows therefore that the case proved is in legal implication entirely different from that Stated in the Declaration. 43 (Buffalo 1954). 623 (4th ed.‟ The History of the Forms of Action is the History of Substantive Law „~ THE Rules of the Substantive Law of Contract. 10. Even In the Code States where the Ponits of Ac. 913 (1895). See floppy. v. the plaintiff fails in his Proof of a conversion but succeeds in establishing a trespass. 147 N. 506 (1870). Thus. Moreover. The mistake made by suing in a Form of Action which expresses a theory of liability not available in the case which the plaintiff has stated and proved is known as a Misconception of the Form of Action.E. but only a liability based upon a Breach of Contract. Such a Defect is one of Substance. 783. by the Form of Action in which he stated his case invoked a theory of liability or principle of Law relating to trespasses.Y. Boston 1904). 105. Henry Glass & Co. where the plaintiff alleges Trover. 14. 88 Bug-Rep. it would constitute a glaring departure from true procedural principle to allow the plaintiff to recover for the debt or the proved conversion. 58 Me. 39 LEd.S. tion have been abolished. 78 Eng. c. Pouldes 11. proftr ised to pay to the plaintiff a debt owed by a third person. 540. 13. 8 M. the defendant. 13 EFFECt OF DEVELOPMENT 63 B with conduct which he supposes amounts to a trespass when. Page 75 of 736 . whereas in fact the defendant undertook to purchase the goods. there being no obligation imposed by the Law upon the defendant to pay the debt. by Bogle.Div. for goods sold and delivered.13 which in fact merely amounts to the observance of the differences between the 4 distinct theories of liability or principles of Law. Sec. 11 under the Form of the Action of Trover. v. Marietta Chair Co.9 The same principle operates where. 475. C. 15 S. Reynolds v. it. 10 likewise. suppose A charges ?. Property and Tort have been evolved by inquiring in a myriad of specific instances whether the Combination of Facts or 12. 771. as it has been the policy of the Courts to preserve the Distinctions Between the Actions.may lose because of a mistake as to the legal effect of his Facts and as to the Legal Doctrine applicable thereto. & W. and hence plaintiff fails to recover. but the true theory of liability is one for negligence which invokes another doctrine of law entirely different in origin and in theory from that invoked by the Action of Trover. 206 N. if the plaintiff brings Debt against the defendant B. V. 272. if liable. If A in error sues B in Trespass. Ogden.‟2 as it assumes a liability for debt when there is no debt. the theory is one of liability for a conversion. McNabb. For a similar Rule in New York under the Code. Misroch. was liable under a legal doctrine based upon a Breach of Promise. Mulgrave v. but merely shows that the defendant permitted the goods to spoil. Introduction to Civil Procedure. and then refused to accept the goods upon Tender. as a matter of Substantive Law. Code Remedies. 151 Bug. in an Action of Trover. not being indebted to the plaintiff. Pomeroy. Willoughby. 71 (1925). 452. Ellenwood 9.. a liability created by a Rule of the Law of Contracts. the wrong in question actually creates a debt or amounts to no more than a conversion without a Trespass. 1153 (1841). and has been insisted upon as a Fatal Defect. Oro. modified 239 N. if in Debt. JIr.

10 The list of Original Writs as recorded in Chancery or as they appeared in the Regis 16. Ch. there was one for big dogs and a smaller one for little dogs. 3 Harv. Sec. would fall little short of a Complete History of the Common Law. they just grew. it was not the product of a skilled Legislator selected by providence to calmly devise theorems of Remedial Rights for all conceivable wrongs. were relatively few and arbitrary. and Damages. From this it may be inferred that the list -of Original Writs not only determined the Jurisdiction of the Royal Superior Common-Law Courts. such as Assumpsit. History of the Register of OrigInal WrIts. the Principle of Jurisdiction remained as if still actually governed by the Original Writ. it-printed In 2 Select Essays In Anglo-American Legal History. there were doors for yellow dogs and black dogs. representing Theories of Liability. and the door of Case for mongrel curs of no particular breed. the Forms of Action. Ejectment and Trover is usuaily a discussion of Property.” Ship. 1886). but lust plain dogs. Early Law and Custom. H. Paul 1923). with the well recognized result that the history of these Theories of Liability is the History of the Development of English Substantive Law. is necessarily a discussion of the development of the Law of Contracts. in a later or more modern day a discussion of Debt. both Ancient and Modern. Nor was this list the result of a rational Classification of Theories of Liability or of Causes of Action according to the character of the Rights and claims to be presented. yet the stream of rights flowed down these channels. as represented by a Particular Form of Action. as the Law could only be found in their interstices. but it determined the existence of Remedial Rights and Liabilities. (1591). when measured by the myriads of human situations in which human beings were bound to be seeking some Form of Remedial Relief.15. the existence of the Right being dependent upon the existence of a Remedy. man. 212 (1889).L. 549 (CambrIdge 1908). or Trespass. Replevin. the Judges felt impelled to consider the case exactly as if it had been begun by an Original Writ and to govern the exercise of their Jurisdiction according to the recognized occasions of Remedy. Even though the Writs became in time a mere formality. a History of the Forms of Action. Koffler & ReppycomLaw PIdg. 97. 3S9 (New York. Account or Assumpsit. whether the Operative Facts presented constituted a Cause of Action which fit into the theory of liability as represented by some Specific Form of Action. 64 See Maitland. It has been rather. “The Writs were like doors to the King‟s Courts. Covenant. and the theories of liability. Long after the Original Writs ceased to be essential to authorize the Courts to act in a specific case. were still observed as being the sole occasion of remedial intervention. 13 FORMS OF ACTION EFFECT OF DEVELOPMENT 65 Page 76 of 736 . It was In this very conneetlon that Sir Henry Maine observed that the Boles of Substantive Law had the appearance of being “secreted In the Interstices of Procedure. that of Detinue.—4 Events of the plaintiff‟s case were covered by any recognized theory of liability. Nor were the Theories of Liability as seen in the Forms of Action comprehensive and logical. This was neither a Matter of Pleading nor of Procedure generally. Thus when Glanvill and Bracton wrote concerning the Law of England they were compelled to write about the Writs. 167. it was a ques tion of Remedial Right. 2 1mm Brevum‟7 was not a reasoned or well-rounded Scheme of Remedial Justice. 60. a 11 (St. a violation of that right by the defendant. Had the authority of the Clerks in Chancery been less restricted in their practice of issuing New Writs and had the Judges been more liberal in extending the Remedial Scope of the various Forms of Action.Rev. as if represented by the various Forms of Action.” Maine. and were superseded as the Method of Commencing the Action. 17. In their thy this involved the Forms of Action known as the Ancient Proprietary and Possessory Real Actions. The primary question before the Courts was not one of whether the plaintiff in the statement of his case had alleged a right in him. that of Trespass and Case is a discussion of the Law of Torts. in short.B. Handbook of Common-Law Pleading.

namely. though we have buried them. observes Professor Maitland.” 19 The names and the-aries of the Forms of Action as they existed at Common Law still indicate the Recognized “. Thus. and the Procedure in All Actions was reduced to uniformity. thus hampered and restricted was found insufficient to meet certain demands for Justice. as ~veIl as the knowledge that the History of the Forms of Action is the History of Substantive Law. “The Forms of Action we have buried. though it is closely associated therewith. so that no wrong should exist without a remedy. and the Scope of the Various Actions measures the existence and extent of liability at Common Law.‟8 as the Method of Procedure adapted to a specific kind of case. to meet the exigencies as they arose. The test of the existence of liability and of the amount of Damages due may depend upon whether one Form or another is applicable. And this is true even under the Code~° Some cases may fall under two or three of these theories of liability. Maitland. after England and most states abolished the necessity of choosing one of these specified theories in Commencing an Action. Lecture 1. it is not a General Demand for Reilef FORMS OF ACTION Page 77 of 736 . and Pleadings appropriate to the particular injury”. . it is not to be confused with a Cause of Action. The essential differences were in the Allegations of Fact necessary to show the Right of Action in each Form. the occasions of liability. and the starting point of legal doctrine. Nothing could be farther from the truth. to supply the deficiencies of the Common Law and to give Justice where the Common Law Remedies were inadequate. we are at last ready to attempt to define a “Form of Action. 2 ~Cambridge 1948). which in legal theory gave a Remedy where there was a right. The Common Law. therefore. even at the present day. 1 Standard 19. Or. it may be asserted that a “Farm of Action” is not a choice between Methods of Procedure or Relief. London 3883). the Court of Chancery. The choice of One Form of Action over Another is primarily a choice between different Theories of Substantive Liability. are based on the historic distinction between the different theories of liability as represented by the Forms of Action and the Remedies available thereunder. to put the matter in a broader way. The Law was required to express itself through the Limited System of Writs and Forms of Action sanctioned by precedent.” The phrase “Form of Action” has been defined as the “technical Mode of Framing the Writ. Property and Torts Law.” Yet. Aside from the soundness of these last observations concerning the Supplementary Functions of Equity. In other words the Cause of Action had to fit the Theory of Liability as represented by a Specific Form of Action. 2 Causes of Action. that in order to understand the intricacies of the Law. 18. Common-Law Encyclopedia of Procedure. in their respective grounds and theories of liability. S (Los Angeles & Chicago 1911). 32. It follows. Introduction. practically all of our Modern Substantive Contract. with some comprehension of what constitutes a Misconception of a Form of Action.and particularly the Great Residuary Remedy of the Common Law—the Action of Trespass on the Case—their Remedies might have effectually answered many of the purposes of a Court of Equity and thus made its creation unnecessary. First Report. and a litigant will have a choice or Election between them. The Forms of Action at Common Law. And this remained true even when the incidental differences in procedure were removed. it is necessary to approach it by the study of the various theories of Remedial Right available under the Forms of Action at Common Law which have been recognized by the Courts. The Phrqse~ “Form of Action” Defined WITH the distinction between a Cause of Action and a Form of Action in mind. Commissioners of 1851. on principles of natural justice. a distinct Tribunal arose. 759 (3d ed. Law Studies. with some understanding of the different Doctrines of the Different Actions. By way of summary then. so it is said. they still rule us from their graves. and little discretion was left to the Judge. 66 Ch. it is clear that the Classification and Definition of the Different Species of Contracts and Tarts. the Forms of Action remained in substance. 2 Warren. The law governing Forms of Action is not the Law of Pleading or Procedure. . had its origin in and developed out of the Theories of Liability represented by the Forms of Action and the Procedural Incidents thereto. in other words.

and there are intrinsic differences between them which No Law can abolish. 23 NJ. it provides a scheme whereby it may be determined whether the plaintiff‟s alleged Cause of Action fits into any judicially recognized Theory of Liability. Substantive Facts in the Declaration.Laws 1845. and finally. § 103 (a) (1968).tve as a Basis of Remedial Law. C. and the necessity of choosing between them. following the pattern set by the New York Code of Procedure of 1848. the Declaration as finally developed being but an amplification of the Original Writ. Selden. in New York.Y. it is a mechanism through which the doctrine or principle of Law applicable to the Statement of a Plaintiff‟s Cause of Action may be enforced. The Mode of Pleading Under Modern Codes and Practice Acts THE Forms of Action as finally developed are usually associated and discussed with Common Law Pleading. 400 (1922). it is the mechanism through which an unnamed short. have been abolished by the Codes in the Several States. In Ward t Huff. New York EFFECT OF DEVELOPMENT Civil Practice Law and Rules. 5 (St. 23. by taking and disposing of his property. (Jo. 109 A. but not unidentifiable Charge in the Original Writ—the keynote of the Form of Action—is. 287. 293 (7th ed. converted into an enforceable liability. “with the additional circumstances of time and place” 21 set forth in a more narrative and spacious form. Page 78 of 736 . it is the Frame within which a plaintiff could suggest the facts constituting his Claim for Relief in accordance with the appropriate Rule of Substantive Law applicable thereto. which are made the same for All Actions in Modern Procedure. flailed at Common Law sUn sun. through the Statement of the SO. 21. the essential and differentlathig Rules applicable to Pleading as estab. Duyckinck V. 202 (1922).J. observed: “Although the Code [of Procedure] has abolished 26 all distinction between the mere Forms of Action. “While the New Rules have abolished the distinctive Common-Law Forms. Oxford 1775). The abolition of the requirement of selecting a particular one of these theories of liability has emancipated Pleading from arbitrary Variations of Procedure in differ ent kinds of Actions. and the Judgment and Execution. Calif. The distinctions between Actions at Law and Suits in Equity. Rather a “Form of Action” may be defined as a Procedural Device whereby the primitive mind gave concrete expression to a theory of liability. yet Actions vary in their Nature. only the manner in which the Calm or Defense shall be set forth depends upon Rules of Pleading. Property and Tort rather than to Procedure. and every Action is now in Form a Special Action on the Case. 84. It is impossible to make an Action for a direct aggression upon the plaintiff‟s rights.LRov.. The Theory of the Pleadings in Code States. ffandbook of Common Law Pleading. these varying with each Form of Action. contains this provision. Asseler. the same thing. 279 (1852). in Substance 24. St.25 in reference to this type of Statute Abolishing the Forms of Action. 5hlpman. 56. and the Forms of those Actions and Suits. 379.” Minturn.” 24 In the famous New York case of Goulet v. 94 N. Paul 1923). have been abolished. it is a device. But there are still many Code States which insist that the Pleader shall select and adhere to some Theory of Liability in stating his Cause of ActionP The Forms of Action. Clinton Mutual Ins. reprInted in 94 CentLJ.L. 67 “there is only one Form of Civil Action. 288 (1*20). 13 N. Forms of Action are the recognized Theories of Liability through which the Common Law Rights of Action have been evolved. an incidence of the existence of which determines the Formulae of Pleading the Cause of Action and Defence. 3 Blackstone‟s Commentaries on the Laws of England.L. As such they are much more important than any mere Rules of Pleading.23 Thus. Albertsworth.. 389. J. the Method of Proof and Trial. but they relate to the Substantive Law of Contract. classified and formulated. While necessarily the Rights and Liabilities and Defenses depend on Substantive Law. S. ii.based on a Specific Wrong as might be made under a Non-Formulary system of procedure. 81. 10 Sec.

Outline of Proceedings In an Action. by Will. Process—The Original Writ.L. 18. Huff. VI. 16. 17—20 (3rd Ed. and having traced the Development of the Forms of Action. From Its Commencement to Its Termination. 10—12 (St.” 27 In many of the States which retain the Forms of Action. washington. In its broadest scope. The Appearance. I & II. 1892). actions were Classified as either in Contract or Tort. 1005). The Court. Introductory. D. Civil Procedure at Com. 81 at 84. 225 (1860). 140 (Boston. c. Goulet See. see: of an Action at Treatises: Pleading in Civil Actions. is required in each of these Two Kinds of Actions. I. both Ancient and Modern. and the same Rule of Damages applies. 287 at 288 (1920). siso In this connection the New Jersey case of ward v. 109 A. 15.Y. 69 (Sixth Ed. 14. c. A Treatise on the Principles of Pleading. c. Of the Proceedings In an Action. Stephen. I. 225 at 228. ed. Appearance. Page 79 of 736 . Perry. 17. Service—Personal and Constructive. the Common Law Forms have been combined or modified by Statute. c. the property of another. v. II. as an Action to recover for the consequential injury resulting from an improper interference with N. I. 26.J. Of the Original Writ. Procedure has to do with Pleading.25. Procedure. 31 (1835). 40-42 (3rd Am. the steps by which proceedings are conducted in 1. Martin. Jurisdiction of Courts. we may now turn our attention to the system of Offensive Pleadings as developed by Common-Law Procedure. 1023).. Albany. at one time at least. by Ballantine. 22 N. The Pleadings. by Tyler. THE COMMENCEMENT OF AN ACTION 1 In general. Common Law Pleading: Its History and Principles. therefore. St. 94 N. In Massachusetts. at al. Paul. the Substantial Differences remain as before. 22 or in Principle. while in Michigan. The mere Formal Differences between such Actions are abolished. § 3 Process— The Original Writ. Gould. 1~. Art.Y. PART TWO OFFENSIVE PLEADING—GENERAL CONSIDERATIONS CHAPTER 3 HAVING developed the view that Common-Law Pleading still survives as the basis of Modern Remedial Law. 1909). 15 itO. Shlpman. 19. Asseler. on the Commencement Common Law. The same Proof. as before the Code. C. C. Handbook of Common Law Pleading. Sec. Ratledge. Pt. and Tort Actions for Damages were called Trespass on the Case. Practice and Evidence. in which he has a contingent or prospective interest. 1897). The Pleadings. A Treatise on the Principles of Decision: West v. mon Law. Paul. 27. Contract Actions were all called Assumpsit.

Of ActIons. as. Art II. The procedure under which these Courts operate may be governed by Legislative Rules or Rules of Court.) 264 at 407. c. a Writ of Error. I. then he must determine what Court has Jurisdiction over the supposed action. but 8 only when at the proper time and place they are exercising their Judicial powers. and the Authority of the Court over the subject-matter. 0. Robinson. (7) The Judgment or Award of the Cause with respect to the nature and amount of relief to be given. II. and lastly (9) The Review on Motion for a New Trial. The Mlrrour of Justices. 19 U. e. 2. (6) The Trial of Issues of Fact joined in the Pleadings. 7 And it has sometimes been regarded as an incorporeal thing requiring for its existence the‟ presence of a Judge. a Bill of Exceptions. also. also the place where Justice was administered. after an analysis of the Facts of the client‟s case. it being concluded that a Court is a tribunal duly constituted and present at the time and place fixed by law for Judicial Investigation and Determination of Controversies. Washington. A Court is a tribunal duly constituted. It should. 1889). Introductory. And there are different kinds of Courts. when viewed from the standpoint of Jurisdiction. During this primitive period of development S.S. Defined (St Paul.” Borne. Martin. and according to Cowel it meant the house where the King remained with his retinue. the formal Statements of Claim on one side and of Defense or Replies thereto on the other. the Courts were popular assemblages held in the courtyard of the baron or of the King himself by those whose DictIonary of Law (Chicago. In General THE COURT WHEN a client consults a lawyer concerning some controversy in which he is involved. duty it was to appear at stated times or upon Summons. 74 (With an Introduction by William 0.Anderson‟s Law Dictionary the word “Court” originally could signify only a yard or palace. (4) The Pleadings. for example. (8) The Final Process of Execution. 68 Sec. 1905). See. which enforces the Award or Relief by intervention of ministerial or executive officers.. And there are Courts of General and Special Jurisdiction. Civil Procedure at Common Law.” ~ If. or on a Modem Statutory Appeal. then. Cohens „cc VIrginia. to correct errors which may have arisen. 14 69 THE COURT 14. (2) The Jurisdiction of the Courts— in which Court an Action must be brought. First. 1003).° But it has been regarded as too narrow. 408 (1821). and present at the time and place fixed by Law for Judicial Investigation and Determination of Controversies. the great object of which all prior proceedings have led up to. (3) The Process or Summons to acquire Jurisdiction of the Cause and to compel the Defendant‟s Appearance. it may be well to inquire as to what is a Court? According to .4 In early Anglo-Saxon and Anglo-Norman times it referred to the place of the King‟s domicile as the King was the fountain-head and Dispenser of Justice.” and at least one American Court accepted his definition. (6 Wheat. I). It deals with: (1) The Courts.the several Courts. before considering the Problem of Jurisdiction. “A civil action at Common Law is a proceeding in a Court of Justice for the purpose of obtaining redress for the violation of a legal right. be understood that the Court does not consist of the Judge or Judges as individuals. what he wishes to know is whether he has a civil action against his adversary. a word about the Courts. the modern tendency being in the direction of the latter method. Therefore. which administered the Common-Law. „An Action Is nothing else but a lawful demand of right. Page 80 of 736 . however. the lawyer decides that he has a Cause of Action. Courts of Original and Appellate Jurisdiction and Courts of Record and Not of Record. Civil Actions. With this idea in mind Blackstone defined a Court as “a place where Justice is Judicially Administered. (5) The Examination of the Issues of Law after argument upon Demurrer. 7.

but when the Jurisdiction is 5. the Records of which may be offered in other Courts as conclusive evidence of the facts stated.Ala. IN general. its Jurisdiction is presumed and need not be expressly asserted by the plaintiff. In it Steele.9 A Court may also be either of Original or of Appellate Jurisdiction. Ex 7. it is observed that a Court with General Jurisdiction is one which has all the power which a Superior Court of the Common Law had. c. 3 CommentarIes on the Laws of England. however. and Appellate Jurisdiction consists of the Court‟s authority to review and correct the errors alleged to have been committed by a lower or Subordinate Court. a delegation from the King in each instance. A Court of Special Jurisdiction is one whose Jurisdiction is limited by Constitution or Statute and hence may only hear and decide specific cases.1‟ JURISDICTION OF COURTS i5. 1727). 383 (187P~. the source of the power and authority of the Common Law Courts to afford the relief asked was anciently the Original Writ.1907). PrelimInary Matters.Different Kinds of Courts THUS. S. the Court of Original Jurisdiction is a Trial Court. To put the matter another way. Courts may be either one or two descriptions—of General Jurisdiction or of Special Jurisdiction. 156 F. mid.‟ ° The former includes Courts in which the proceedings therein are recorded on parchment for a perpetual memorial and testimony. nouncing Judgment. ~ 1. Jurisdiction depends upon authority over the subject~matter and over the parties. 1775). on a Judgment of a Court not of Record six years. 11. 70 Am. and it may hear a wide variety of cases. whereas a Court of Appellate Jurisdiction acts upon the Record made in the lower Court. 1808). but also that of bringing uniformity in the law throughout the territory over which it exercises Appellate Jurisdiction. Original Jurisdiction consists of a Court‟s authority to decide a case in the first instance. CE 3 limited. or at most are regarded only as prima fade evidence of the facts stated therein. By Statute in some states the Statute of Limitations on a Judgment of Record is twenty years. and (2) upon Jurisdic tion over the parties. When the Court is one of General Jurisdiction. COMMENCEMENT OF AN ACTION 9. As classified in this manner. I. Such Written Law prescribes the Nature of the Causes that may be brought within the cognizance of the respective Courts. Note 2 (Buffalo. and by way of con trast. e. Jurisdiction is the power of a Court to hear cases and decide them by pro. The Commencement of an Action. Oxford.C. the plaintiff has the burden of establishing the Court‟s Jurisdiction. 853 (D. Courts may also be either of record or not of record. 1~. it is farther removed from the people and among its purposes is not only that of reviewing the errors of inferior Courts.Eney. ~„hereas the latter refers to a Court whose Records are not so regarded in other Courts. II. Parte Branch & Co. In England. 63 Ala. Introduction to Civil Procedure. Law Dictionary (CambrIdge. of Law. readily accessible to the people in such locality where the witnesses are heard and a Judgment is rendered.. 23 (7th S.‟ Derivation of Jurisdiction THE Judicial Powers and the Jurisdiction of the Courts of the States and of the United States are in general derived from their respective Constitutions and are further defined and fixed by Statutes enacted thereunder. III. 22 (Northport. 1954). See Repp~‟. 8 4. Such a Writ was the warrant of authority under which a particular Page 81 of 736 . & Eng. And the power to render Judgment depends: (1) upon Jurisdiction over the subject-matter of the 2 action or of the class of cases. Of Courts in General. Ibid.

based on a delegation by the Council of Judicial Authority not previously delegated to the older Courts. “with such Exceptions. in which the Chancellor 14. III. for one reason or another. fllaekstone‟s Commentaries on the Laws of England. The Laws enacted by the congress of the United States are Law in the Several States. and the Inferior Federal Courts. each State had an independ 12. Art. In 1942. each of which will be considered in detail. 13.” 18 Duality of Jurisdiction IN England.Common Law Court took cognizance of the cause.C.L. In time.‟6 the powers which could be exercised by the National Courts were confined within limits strictly defined by the Federal Constitution. 1877). 16. § 1. 16 71 ent Judiciary. but were also independent of each other. Chancery. Of the Pursuit of Bemethes by Action. 756 (chase‟s Am. Nevertheless. Thus. under the Constitution.S. allotting certain kinds of actions and relief to one set of Courts and the remainder to another. the right of a State Court to protect rights granted by a Federal Statute cannot be questioned. Sec. except as limited by the Federal Constitution or by Federal Statute. and “such inferior Courts as the Congress may from time to time ordain and establish. limited only by those reserved to the Federal Courts. The line of demarkation between Legal and Equitable Jurisdiction is thus historical in origin and arbitrary in fact. See article by Reppy. art. 125. 2. The Jurisdiction of Equity was residuary and supplemental to the Law. give the Federal courts Er-elusive Jurisdiction. whereas in the United States. U.Const. even after some elasticity was afforded by the flexible nature of the Action on the Case. and the powers which they exercised. § 2. other public Ministers and Consuls. Nonetheless they left behind them a dearly defined Jurisdiction and the limited system of remedies under the Forms of Action. however. 15. it is said that the Court of Chancery was created. c. In England a precedent once established on a particular subject became the Law of the land. 174 (New York 1905).” iS While the Judicial Powers of the State Courts were general and undefined.‟3 In course of time the Jurisdiction of the Law Courts became fixed and established as to those matters in which Writs were demandable of common right. however.. )3ook 111. The Problem of Jurisdiction in Englond and America Distinguishe4 IN approaching the Problem of Jurisdiction of American Courts. PROCESS—TIlE ORIGINAL WRIT See Baldwin. L. The American Judiciary. Page 82 of 736 .Am. a large Jurisdiction was still unprovided I or. XIV. as it had a direct bearing upon how Jurisdiction in a given case was to be secured by the Common Law Courts and the Court of 17. whose Judiciaries were not only substantially independent of the Federal Government. the duality of Courts and Jurisdiction has to be kept constantly in mind. where a right Is created by a Federal Enactment. ~ew York. 1942). Original Writs fell out of use as a regular means of Commencing an Action. Such is the source of the great division of Jurisdiction into Legal and Equitable. ed. Civil Remedies and Procedure. To meet this lack of remedy. the student is faced with complications not present under the English System.”” In all other cases. 7 R. that there was no adequate remedy at Common Law. and those in which a State shall be a Party. Courts. Annual Surv. ci. Congress may. III.14 Superimposed above the states. 791. the Supreme Court had Appellate Jurisdiction over certain decisions of the State Supreme Courts. Accordingly. consisting of a Supreme Court. and under such Regulations as Congress shall make. was the Federal System of Courts. 1030 (1915). 512 (New York. the Supreme Court had Original Jurisdiction only “in all cases affecting Ambassadors.. gave Equitable Relief and dispensed complete Justice where it was urged.

167. 1584). Select and Approved Forms of Judicial Writs and Other Process. A New Writ. and auburgh 1727). The Formative Principles of Civil Procedure. 35 Mich. we may now consider the varieties of Judicial Process by which Jurisdiction Page 83 of 736 . 1519). In the United States. With these comments in mind. 3loylo. it does serve as an effective instrument for Commencing an Action. Theobald. AT Common Law. Offleina Brevium. Comments Upon Original Writs (London. 714. 3 Harv. under both State and Federal Constitutions. Neff.S. Setting Forth the Practice by Original Writ (London. Schulz. Shattuck. 733.LRev.Rev.58).Rev. Arrest or Outlawry. 95 U. 1734— 5). and is directed against the defendant. 2 Vols. before the Judicial Machinery of a State becomes operative. and also All Kinds of Writs. 565 (1877). 8 appear and answer the plaintiff‟s Declaration.Ed. Made Use of in Scotland (Edin 18. to. and Entries to those Writs and Pleadings. or Collection of Approved Forms of All Sorts of Judicial Writs in the Common Bench (London. Brevia Selecta. An Introduction to the Knowledge of Stile of Writs. Townsend. (London. 1705). Judicial Process was by Summons. 1662). 72 Cli. This was the primary function of Judicial Process in its various forms. Los Digest des Briefs Originals et des Choses Concernnrtts Eur (London. as previously observed. 39 (1939). 212 (1889). being a Select Collection of Pleadings in the Courts of King‟s Bench. or Choice Writs (London. 1595). Bohure. The Origin and Development of Quo Minus. 1675). Showing the Nature thorized a specific Court to hear the cause. the Modern Summons is also issued in the name of the Sovereign. 008. The English Lawyer. with their Returns and Entries in the Court of Common Pleas (London. Tables of Precedents ot Pleadings. Rights. Matura Brevium (London. Attachment. in the King‟s name. Writs v. at the Common Law (London. &c. Although the Summons does not have all of the attributes of the Original Writ. 1684).Rev. 49 Yale Li. Modern Entries in English. due process of law requires due notice and an opportunity to be heard. Gratuitous Promises. Writs and Return of Writs.20 in practically all Systems of Procedure. Ibid. Articles: Maitland. an action was begun by suing an Original Writ out of Chancery. Mallory. Wurzel. therefore. 24 L. Cornwall. on the history and development of the Original Writ. Substituted in lieu of the Original Writ. 935—9 (1037). 16.L. Writ „Praecipe Quod Beddat” and• Its Continental Models. (London. IS Micb.PROCESS—THE ORIGINAL WRIT‟° It Original „Process” is any Writ or notice by which a defendant is called upon to 19. 1787). Wilson. Tables to Most of the Printed Precedents of Pleadings. 18 IIi. 1662). Spottiswood. 1687). at the Common Law: being a Continuation from Mr. or a Collection of Approved Forms of Writs.° 1 It follows. Brownlow. 94—117. that in order to Commence an Action. Original Writ notice. Brevia JutEclaim.L. The Commencement of an Action at Common Law was formerly by Original Writ.Rcv. „The Ristory of the Register of Original Wi-its. the Parties to an Action are entitled to be heard or to have an opportunity to be heard. determined the character of the action. 1—36. 150—168 (1928). 1667). Itegistrum Crevium (London. An Exact Book of Entries of the Most Select Judicial Writs Used in the common Law (London. Simple and Compound. see: Treatises: Retorus Brevium (London. which served the purpose of ordering the Sheriff to give the defendant and Forms of Original Writs (London. In general. Hughes. 1 (1942)..L. 1732). 96. 255 (1920). St Pennoyer v. 54 Jurid. dcc. Townsend‟s Tables (London. 1679). Writs. or The Filacer‟s Office in the Court of King‟s Bench. Jus Filizrii. COMMENCEMENT OF AN ACTION tn General ACCORDING to Miller. Common Pleas and Exchequer. Thesarius Brevium. it is highly essential that the defendant shall have due notice and an opportunity to present his version of the controversy. Autrobus & Impey.

U. and the Writ of Summons is used as a means of notifying the defendant of the suit and ordering him to appear in Court. 872 (1934). Pressey v. Burdick. Cf. The practice is very generally. regulated by Statutes.Ilev. 49 Mich. 71 (1889). but is used merely as a convenient way of directing the Clerk as to its issuance.L. 103 (1948). varying somewhat from State to State. and delivered by one of his deputies to the defendant. Immunity of Non.L. 1007 (1920) The Judicial Process— Ultramares Corp.R. made out by the plaintiff‟s attorney for the Sheriff. 26 Ind.2 though in some of our states the term is retained to designate the process that has talc-en its place. Service Of Process in Civil Actions in California. or for the purpose of compelling appearance by the defendant..over the parties to an action may be acquired.Rev. Federal Process and State Legislation. 17 A. Process-Immunity from Service—Person Entering State to File an Action. 471 (1947). 32 Corn.R. 68 U.L. 19 ALE. 1267 (1940). Co.J. Potter v. 280 (1940). Keefe & Roscia. Immunity and Sentimentality. or warning to appear according to the command of the Writ itself. 87 Mich.Resident Litigant or Witness from Service of Process as Affected by Transactions or Activities Unrelated to Action. Substituted Service and Waiver of Federal Venue Under “Neirbo”. v.Rev. 49 (1931). Comments: Arrest of Defendant of Mesne Process on a Civil Proceeding. of Bank of New Brunswick v.L. sign and present to the Clerk of the Court.L. if not entirely.11. President.L. 828 (1922). Immunity from Service of Process of Non-Resident Witness Appearing in Other Than Strictly Judicial Proceedings. Touche. It is not essential to the validity of the Summons. 20 flatv. But by early Statutes a Capias was 24. 162 A. 285 (1951). 26 Ill. to draw up.L.Rev. 23. 127 A. 546 (1930).LQ. Immunity of Non-Resident Participants in Judicial Proceedings from Service of Process—A Proposal for Renovation. Immunity of Non-Resident from Service of Process While in State for Purpose of Settling or Compromising Controversy. (2d) 1353 (1954). there is no need of any Original Writ to authorize the Institution of an actmon. 907 (1951). 93 A. see: Articles: Amram.Rev.L. 288.Pa. No Writ at all is necessary for instituting actions. 63 Harv. Arrowsmlth. 871 (1919). The Summons.Rev. 20 Mich.L.Rev.25 A ttachrnat” THE Writ of Attachment is a Writ cornmanding the seizure of the property of the Page 84 of 736 . Commencement of an Action in Modern Practice IN Modern Practice the Original Writ is no longer used either as authority for instituting an action. 1951 Wash. 26 Ind. 59~ 49 N. 37 Col. John Hutclfison Mfg. Neff.llev. Scott. 10 Va. 50 (1919). 459 (1951).R. Immunity from Service of Process of NonResident Requested or Required to Remain in the State Pending Investigation of Accident. ImmunIty from Service of Process in Civil and Criminal Cases.Q.R. allowed in all ordinary cases. ImmunIty of Non-Resident Defendant in Criminal Case from Service of Process.Rev. 26 Col. 51 (1929). Annotations: Immunity of Non-Resident Suitor or Witness from Service of Process as Affected by the Nature or Subject Matter of the Action or Proceeding in Which the Process Issues. 422 (1925): Warren. 20 A. Federal Practice: Attachment Without Personal Service of Summons. Summons and Arrest24 PROCESS—THE ORIGINAL WRIT THE first Process upon the Original Writ in tontract actions and for civil injuries unaccompanied by force was a Summons.L.W.Q. 657 (1950). 9 NJ. L. The Requirement of Seizure in the Exercise of Quasiin-Rem Jurisdiction and Pennoyer V. an order requesting him to issue a Summons. Jurisdiction over Non-Residents. 427.L. A verbal direction would do as well~ 22. 50 A. 284 (1527). 421. in Commencing an Action. 31 Corn. In this country since the Jurisdiction of the Courts is conferred by Constitution and Statutes.L.L. Snow.R. (2d) 163 (1951). 35 A. 8 (1949).L.L.L. The general practice is for the attorney. Service in Actions in Personam. Process—Service—Usual Place of Abode.L.J..L. etc. and was gener ally issued in the first instance.L. 517 (1891). In general. This order is called a praccipe. 81 Me. on the Service of Process in Actions at Law.

if the property attached is a chose In action. In some States it can be issued only against absconding debtors or persons concealing themselves. e. Boston. 3 Blackstone. COMMENCEMENT OF AN ACTION Sec. 105 A.L.L. 11 (St. Of the Cnpias by Original and Process of Outlawry. and the Attachment constitutes a ilen on the goods for the payment of the claim sued on. § 13. A Treatise Upon the Law of Pennsylvania. Philadelphia. Page 85 of 736 .Y. Attachment of Choses in Action in New York. 1807). in which case the attached property is released.n in Actions of Debt was settled procedure at Commoo Law from the reign of Edward III [1327— 1377J. A Practical Treatise on the Trustee Process or Foreign Attachment of Massachusetts and Maine. 1799). ed. Interpleader and Attachment of Debts (London. Daniel. Practice. 1864). to be held as security for the satisfaction of the plaintiff‟s claim.. Wherever the defendant could be arrested he could be held to bail and could appear only by giving special bail as contrasted with common bail or nominal bail. and dissolve the Attachment by giving a bond. Changes in The Law. the Attachment was used to compel the appearance of the defendant. Right of a Creditor to Sue and Attach(Before Expiration of the Credit. see Drake. Johnson. 65 LEd.Q. 1830). Locke. The defendant may. Treatise on the Law of Suits by Attachment in the United States (6th ed. The Writ is now issued to attach personal property and real estate to respond to the Judgment. 291 (2nd American ed.U. Cowen. (San Francisco. Acts of the Assembly of Maryland..R. As to this process.” as It is called. (7 Boyce) 297. Civil arrest by capias ad respondeadu. 27. Commentarjes on the Laws of England. 41 S. 19.Va. 1886). Is dissolved or be is „otherwise discharged. Sergeant. it is issued. Law and Practice of Attachment of Debts (London. Practice of Court of King‟s Bench in Personal Actions. and.S. 1861). e. ed. TiUd. 1807). I. (London. Brandon. Martin. 26. (Cambridge. 1905). see Ownbey v. 837. 2 Vols. 107 (1st Am. Kneeland. Cushing. however. 873 (1920). 838. Previous to the Capias. Treatise on the Law of Attachment and Garnishment. Waples. 1855). 1854). he is defaulted. 1819). if not. Treatise on the Law of Attachments in Civil Cases (New York. e. 256 U. Of the Original Writ and Process Thereon. &c. (Philadelphia. The defendant may appear or not. London. defendant. Drake. who is called the “garnlsbee. In general. 125 (1952). The defendant could not plead in bailable actions until he had appeared by giving baiL The Process by Attachment and Distringas or Distress Infinite was availed of wherever the defendant avoided arrest. Law and Practice of Foreign Attachment in the Lord Mayor‟s Court (Philadelphia. It brings In a new party in the person of one Indebted. 30 Del. which may be enforced by Execution. in others. in the first instance. The Doctrine and Practice of Attachment in the Mayor‟s Court. Morgan. the Attachment was dissolved. Cababe. Treatise on the Law and Practice Relating to Warrants and Attachments (Albany. and thus differs from an Execution. 1885). 1884). Of Process 290. 433. Id. Practice of Courts of King‟s Bench. There was no lien upon the goods to secure the debt. Relative to the Proceedings by Foreign Attachment &c. Introductory. &-c. on the subject of Attachment. 1881). On Special Bail as a condition of Appearance by nonresident whose goods have been seized.L.Ct. to obtain control over the property of the defendant with which to satisfy the Judgment. the bond standing in its place. 849 (1919). 21 U. Boston. Wolf & Michael. see: Treatises: Ashley. generally appear at any time before Judgment. 137 (London. 94. Treatise on Attachment and Garnishment (Chicago. or nonresidents. Property Interests Subject to Attachment for Constructive Service in Ohio. 13 N. Paul. Civil Procedure at Common Law. which is the Process issued after Judgment. VII.Q. CinrnLdtev.2‟ 380 (1897). Such a Writ always issued before Judgment. 1840). Comments: Publication of Process In Attachment Proeeedings.. when he has appeared. Pidd. 122 (1st Am. 16 73 See 1 Scion. At Common Law. 46 W.‟ and who Is required to hold the property in his hands until the Attachment or “Garnishment. 1869). 323. I. Treatise Upon the Customary Law of Foreign Attachment (London. Law and Practice of At tachment Under the Code of Virginia (Lynchburg. 17 A.25.J. Art.Rev.L. Temple. 1798). V. Philadelphia. 223 (1940). after having been served with the Summons. 37 (1930). on the Subject of Attachment (Baltimore. Wade. 44 Cent. 1855). Primordial Conceptions. e. Articles: Maupin. 1833) Hiakley.

1832). Pacific Coast Borax Co. Crowther. 50 A. and Cases. The ordinary method by which a Court gets authority to adjudicate upon the rights and liabilities of the defendant is by Service of Summons upon him personally within the state. &c. Articles: Bohlen and Shulman. Constructive Service of Process by Publication is by Statute authorized where the Court has Jurisdiction in Rem or Quasi in Rem. Merchants‟ & Mechanics‟ Ins. which is another provisional remedy. Smythe. 386. (London. Schroeder v. 1828). and an Index. E. c. 841 (1028).L.L. A Treatise on the Abuse of the Laws.L. Only by virtue of Personal Jurisdiction can the Court render a personal Judgment and create a personal obligation which will bind all the defendant‟s property everywhere. being the Act for the Abolition of Arrest on Mcsne Process. 11. relating to or amending the same. Orders. (7th Ed.. showing its impolicy. (London.Bev. c. arranged ac cording to their Applicability to the various Sections. 53 A.Pa. 273. 1838). (London. Macdonald. with the History of its Progress. as Decided in all the Courts. Theobald. explanatory of the Alterations in Law and Practice. 29.. There are statutory provisions as to the officer or Page 86 of 736 . 1891). See. c. Ings. In general. on the subject of Arrest on Civil process. Under the 3 & 4 Viet. For the latter case seizure of some property by Attachment or otherwise is necessary.L. Thomas. or sometimes on Substituted Service. 1814). A Treatise on Civil Imprisonment. 3 SERVICE—PERSONAL & CONSTRUCTIVE SERVICE—PERSONAL AND 74 75 CONSTRUCTIVE 17. The Law for Abolishing Imprisonment for Debt on Mesne Process. 428. Bohlen and Shulman. 1842).Rev. An Act for the Abolition of Arrest on Mesne Process. W. Commentaries on the Laws of Arrests in Civil Cases.. 1787) Pamphlet. with a Practical Comment (Dublin. Particularly in Actions by Arrest (London. Perkins. and how it may be and is abused.29 Attachment. In General PERSONAL Judgment must be based upon Personal Service of Summons upon the defendant. Arrest With and Without a Warrant. 104 Ill. 47 N. 1840). 1 & 2 Vict. 485.H. Lush.3° PERSONAL Judgments must be based upon Defendant Personally THERE is a most important distinction between the Jurisdiction which is based on personal service. 71 (1882). Cheney. The Right to Kill In Making Arrests. (London. (Lon don. see: Treatises: Dawes. Co. 17 Ch.. 1838). amrmed 60 N. 481. 24 (1860). 201 (1940)..J..Rev. &e. Jurisdiction in Rem.. and Quasi in Rem is based on Constructive Service by Publication and Control of some rca. Wordsworth. and also. with the Rules. Effect of Subsequent Misconduct upon a Lawful Arrest. Observations on the Law of Arrest. &c. or in case of residents upon Substituted Service. SuIt Is commenced by the issue of Summons. But others hold that this is not necessary. 75 U. &e. XX. Sec. together with an Appendix of Forms.The giving of a bond is sometimes compelled by Arrest on Civil Process. See Mason v. c. which is under the power of the Court. Pearce. 48. (London. the Acts 2 & 3 vict. 28. County V.3‟ and Jurisdiction which is based upon control over some res or subject matter.Rev.28 As a general rule the Action is deemed to be Commenced when the Writ is issued. 28 Mlch. a. 25 Iowa L. The Law of Arrest. The Act for the Abolition of Arrest on Iiicsno Process in Civil Actions.. The History of the Law of Ar rest in Personal Actions. 28 Col. 492 (1927). In England. 1701). and 3 & 4 Viet. 105. with copious notes.J. The New Practice of the Law in Ireland. although to stop the running of the Statute of Limitations some Courts hold that the Writ must be delivered to the officer for service. 67 N. Pearson.L. 10. 957 (1930). and Objections to its Policy. Boston. 39. 906 (1902). Jurisdiction to render a Personal Judgment is based on Personal Service of a Summons. You may be Garnished. in which they are Deduced from their Origin to the Present Form (London. 82.

s. 05 U. by leaving a copy at his last usual place of abode. 35 L. Sears. 256. Trust Co. see. nlso. McDonald v. 243 U. Jurisdiction continues through all subsequent proceedings in the same litigation without further notice. L.. even if the defendant is merely passing through on a train. The service. In general on Personal Service.” ~ 32. 39 Am. 120 N. 31.Dec. Cli. (N. if he has one within the Jurisdiction of the Court. annotated in L. 1186. 61 LEd.. 680. the Supreme Court has held that Statutes authorizing Service of Notice on residents of the State while outside its territorial limits and the rendition of Personal Judgment on such service are unconstitutional. McDonald v.Rep. 00. which is regarded as sufficient to give him a reasonable oppor1~linri. see: Article: Burdick. Page 87 of 736 . Mabee. and is liable for neglect or a false Return.L.S. When once obtained. 7 Va. 429. 461 (1900). Constructive Service: Jurisdiction in Rem IN certain exceptional cases a Court may acquire a limited Jurisdiction in Rem by notice sent to a non-resident outside the state or published within it.E. 2 Dowl. & T. Service in Actions in Personam. Grommes.S. 343. Ed.1912D. 39 Am.1917F. 494.Ct. (4 Scam. 422.. III Actions. it. K. Service in Actions In rersonam. and it will support a Personal Judgment. 430 (1843). may by Statute be made equivalent to Personal Service as to a resident defendant.) 315 (1875).S. annotated in Ann. 116 Am.Y.ltev. 2 Abb. Cases on Clvii Procedure. 492.Dec. 80 N. II. But when the Statute is complied with. 243 U. 37 5. and that Substituted Service of Process. White. 634 (1895). they are subject to have their property rights adjudicated by a Judgment in Rem. unless doing business in the state. 3 Ta Iowa. 608. Nelson v. 93 (Indianapolis.E. Norris. or that the defendant cannot be found 32 within his Jurisdiction indorsed thereon.Ons. 1080 (1%5). 63 NW. as is now generally provided by Statute. 608 (1917). 24 LEd. 33.. See England: Heath v. which is called his “Return”. Ct. 8 LEA. in which there was a Service of a Summons by delivering a copy without reading the Writ to the defendant and in which it was held that such service was iasufficient. 107. 292.33 Substituted Service SUBSTITUTED Service. Having made the service. 150 Iowa 51. See. 34. c. 458 (1917). 714.N.3° If they hold property there. Substituted Service of Process by Posting on the Front Door—Due Process of Law. and article by Eurdick.1917F. when personal.. Pennoyer V.A. See. Neff. 236 (1842). Missouri. & Q.Rev. by leaving a copy of the Summons at the defendant‟s residence or usual place of abode.L. 1910). But foreign corporations cannot be served. 20 Mich. Dawson. Itaher v. may be made at any time after the Writ comes into the hands of the officer.R. Law v. Supra. Rahor. ii. also Cassidy V. 494 (1912). 070 (1021). 00. by posting of Writ on the front door is due process.N. Vermont: Hophinson v. 425 (1925). The act of notifying him of the Commencement of the Action is generally performed by reading the Writ to him. 37 S. 41 N. Mabee. 5e~ Loyd. Co. with his report of service. “Substituted Service in actions in personam is a departure from the Common Law Rule requiring Personal Service. v. N. but not later than the time fixed by Statute. 348.A. however.Rev. 158 Ill. 40 (1841).St. or. 430 (1922). The officer is bound to use due diligence in serving 3°. the general rule is that Substituted Service on a resident defendant is equivalent to Personal Service and warrants a Personal Judgment. 61 L. B. 14 Vt. Mere temporary presence in the state is sufficient to subject the non-resident individual to its power if Personal Service of Summons is secured therein. 288. L.B. 32 Cyc. C.C. and the Statute authorizing such service must be followed strictly. it is his duty to Return the Writ to the Court from which it issued. 100.) 536.1t. 20 Mich. 5 Ill.S. in this connection. 225 Ill. tote 24.A. Illinois: Bimeler y. 565 (1S77).W. Chicago. Leitch. 61 76 COMMENCEMENT OF AN ACTION Courts have no general power to Summon non-residents ~ and persons resident in one state are not subject to the exercise of Personal Jurisdiction over them by Courts in another.agent upon whom the Summons shall be served in actions against corporations. which may be the Return Day or a certain time before. 133 (1907). 458.L. or handing him a copy of it.

565 (1877). 639. 95 U. and only by service within those limits is Jurisdiction to pronounce Personal Judgment against a defendant without his voluntary appearnce acquired. „Process from Tribunals in One State cannot run Into Another State. 168 P. and not to the plaintiff. Morning News of New Haven. Sec. 716. Neff. 17 SERVICE—PERSONAL & CONSTRUCTiVE Court may subject the property of the debtor within the state to the payment of the debt. De Arman v. 250 (1919).Ct. 187 Iowa 1293. a claim to specific property. Scott. or by service of Summons outside of the state.35. According to some authorities.S. 1167 (1917). 339. although the 38. 278 (1940). title or interest in the property as against the whole world. 44 So.Ct. or by posting up notices. 565 (1877). 234 U_S. Farson. v.Ct. co. 32 Harv. L..Ct. where a suit is brought upon an obligation against a non-resident debtor. See. either by publication in newspapers. Jurisdiction Over Non-Residents. or by mailing notices to the last known address.S. 22. 58 L. as in admiralty. even though no Personal Jurisdiction over him can be acquired. 175 NW. 518. 714. 714. 36. 1479 (1914). 81 S. 32 Harv. On the aequisition of In Pe. 39 LEd. 559. The Process of the Court is said to „run” only within the Limits of its own Jurisdiction. 34 S. see Scott. 63 LEd. 86 Or. Shipley.” far from their homes and business. 85 I~Ed. Since the action is not so framed as to set up any direct claim to the res in the sense of seeking to cut off the defendant‟s interest as against the whole world. since Jurisdiction is based upon that. rehearing denied 86 Or. Plexner v. 1. Jurisdiction in Rem is Jurisdiction in a cause acquired by virtue of control over the subject-matter. 24 LEd. And the method of giving such notice is by seizure of the property by the Court prior to service by publication.Rev. tunity to appear and defend.S. merely on the basis of an Attachment of the property and Publication of Summons. 42. the following cases: Baillie v. International Harvester Co.S. 944. 51 (1919). 565.24 LEd. the 37. It is held that where a claim is made to property indirectly to thus satisfy an obligation of a non-resident debtor. 714.38 Such seizure will give the Court Jurisdiction Quasi in Rem. even though. a res or ship be impleaded as defendant. any part of the property after the payment of the plaintiff‟s demand remains the property of the defendant. But a Court cannot acquire Jurisdiction to pronounce a Personal Judgment against one who has no residence within the state. 548. A Judgment based on such Jurisdiction is not in personarn. 26 Yale L. 39 S. 710. rehearing denied 312 U. Neff. Page 88 of 736 . The leading ease on the necessity àf seizure by the court in order to properly ground Service by Publication In suits Quasi in Rem. 311 U. 61 S. an Attachment or Garnishment or Receivership is necessary. Shipley v. For an excellent discussion of the fundamental principles governing Jurisdiction over non-residents. Columbia Gold Mm. 77 character of said property may have been changed. All proceedings are really directed against persons and their rights. any surplus remaining thereafter going to the defendant. Hohfeld.‟ 8onam Jurisdiction by Service of Summons without the state upon a domiciliary of the state. as an incidental method of obtaining redress for a wrong. 875 (1919). or by his voluntary appearance. upon a showing by affidavit that Personal Service within the state cannot be had. Coldcy v. must be asserted in some manner. and summon parties there domiciled to leave Its territory and respond to proceedings against them. Massey. 1143. 781 (1917). 965.J.S.S. Some notification of the proceedings is therefore essential. rundaaiiental Legal Conceptions. 156 U. Neff. Meyer.Ct. 871 (1919). the plaintiff is not seeking to cut off the defendant‟s right. even against a resident. And the defendant must have notice of that claim in order to satisfy the requirements of due process of law. No claim is made to the property as such. also. Pennoyer V. 15 S.Rev. 95 U. 688 (1907). 712. 871. 9o U. but it Is purely incidental to the satisfaction of his claim for the redress of a wrong.L. 289. 457. Commonwealth of Kentucky. 248 U. no Personal Judgments can be rendered.Ed. see Milliken v. 151 Ala. as when real estate is sold on Execution for more than the See. 566 (1877). except by actual service of notice upon him within the state. 579. 517 (1895). Jurisdiction Over NonResidents. 1.37 Constructive Service: Jurisdiction Quasi-in-Rem THERE has been a wide extension of the Doctrine of Jurisdiction in Rem to cases where there is no direct claim to a tangible ret Thus. he does have an interest in the property. is Pennoyer V.S. 85 LEd. Penfoyer v. 97. A Court order must in general be obtained to make service of the Summons by Publication or other substituted method. 161 F. and in this regard it is to be observed that the only effect of the Judgment is to enable the plaintiff to satisfy his claim out of the attached property. 24 LEd.

Page 89 of 736 . 3 Corn. Comments: Pleading: What Constitutes an Appearance In New York.4‟ 18. only to the extent of such property at the time the Jurisdiction attached. was a non-resident of the state. or have property therein. because the only question was as to the validity of the original money Judgment rendered in Oregon. 24 LEd. which would be violative of the due process clause of the Fourteenth Amendment. the plaintiff. was provided for by the Code of Oregon. and whether the premises in controversy could be subjected to the payment of the demand of a resident creditor.amount of the demand. COMMENCEMENT OF AN ACTION TIlE APPEARANCE‟ 2 For a revaluation of the doctrine of the Pennoyer ease. The Court discussed the requirement of due process of law under the United States Constitution when applied to a judicial proceeding. Prior Attachment was and is necessary in order to give notice to the defendant that his property was involved in litigation.Rcv.L.S. It also declared that no natural person was subject to the Jurisdiction of a Court of the State “unless he appear in the Court. Without such notice the defendant‟s property might be taken without a hearing or an opportunity to be heard. that he was not personally served with Process.000. Neff Re-Examined. B. made upon a sale of the property on Execution issued upon the Judgment.L. Neff ~ in which appeared that A. The issue thus presented was whether the Judgment in the State Court 38. A. held that the Judgment in favor of the plaintiff in the Circuit Court should be affirmed.Q. was sued in Debt for service rendered by an attorney. and in particular as related to the question of a Court obtaining jurisdiction over a defendant. The Code also provided. situated in the State of Oregon. Thereafter. Id. sued o in Ejectment to recover the land. the defendant in the original action. 119 (1928). or be found within the State. 148 (1918). speaking for the United States Supreme Court. and that the Judgment was entered upon his default in not answering the complaint. at 719. it is interesting to observe that in the principal case. and did not appear therein. in an Action of Debt on a Simple Contract. 63 Rarv. or personal service of process upon him. 95 U. who has property within the state. was void for want of Personal Service of Process upon him. A. the then defendant.” The plaintiff. upon a Constructive Service of Summons by Publication. 657 (1950). or be a resident thereof. and. Mr. 3 before the Court in order to participate in the An appearance may be either action. see Note: The Requirement of Seizure in thc ~xercise of Quasi in Rem Jurisdiction: Fennoyer v. or of his appearance in the action in which it was rendered. 78 against A. PractIce Ch. The Operation of the Doctrine of Quasi in Rem Jurisdiction is best illustrated by the case of Pennoyer v. that at the time the action began and the Judgment was rendered. in the original action having secured a Default Judgment for less than $300 including costs. for the Attachment of the property of the non-resident. but in this action. Constructive General Appearances and Due Process. on the ~ubjoet of Appearance see: Article: Blair. Finally. 28 Ill.L. In general.Rev. in which case the defendant receives the balance as personal property. of the alleged value of $15. 568. The appearance of the defendant is any act or proceeding by which he places himself 41. and C acquired the premises in question under a Sheriff‟s deed. in the last case. the then defendant. sued out an Execution on the Judgment. Such service when an action is brought against a non-resident and absent defendant. a. without his voluntary appearance. 714. where the action was for the recovery of money or damages. 42. against the resident of another state. even the Supreme Court failed to distinguish clearly between Jurisdiction in Rem as opposed to Jurisdiction Quasi in Rem. 565 (1877). Justice Field. by Attachment of the property subsequent to the commencement of the Action. in the state of Oregon.

475 (1934). 387 (1892). 36 Mich. c. Western Loan & Say. the plaintiff automatically submitted himself to its Jurisdiction. or IN discussing the subject of Appearance. 368. If the Court has not previously acquired Jurisdiction of the defendant. or to any Judgment in the case.5.Ed.C.‟° A defendant may. IV. to any Trial. If. 51 (1862). 1101 (1908) (Demurt~er Is Appearance). C. Hull. 84. Martin. 40 Col. The English Courts did not. however. Special Appearance In New York. 862 (1933). Judgmcnt. An Appearance is any unequivocal act by which a defendant submits to the Jurisdiction of the Court in a Cause of Action. California: by the defendant constitutes no waiver of the objection that the Court has no Jurisdiction over the subject matter. in effect. until modern times.L. 11 S. as his actual presence in person or through his attorney was a condition precedent to any Form of Pleading. Federal Courts—Rules of Civil Procedure—Motion for Bill of Particulars Filed Contemporaneously with Motion to Dismiss for Want of Service Held to Waive Objection to Jurisdiction Over the Per. consent of the parties cannot confer such Jurisdiction upon the Court. Court of Honor.W. 15. not required to appear for any purpose prior to the appearance of the defendant. Iowa: Stockdale v. e.Pa. he will be held to have submitted himself to the authority of the Court. waive Jurisdiction over his person. 18 THE APPEARANCE upon failure to appear and plead within one year after the Return of the Writ. 159 ALE. son. Procedure—General and Special Appearance—Waiver of Objection to Jurisdiction Under the Federal Rules of Civil Procedure.L. 85.Ct. 455 (1938). 11 Iowa 45 (1860). 21 Cal. 53 Harv. v. Special Appearance to Contest the Merits in Attachment Suits.(II) Special (I) General. Minnesota: Spencer v. 14 lad. the effect of which is to cure all prior defects in the service. 720. Texas. Under the Hilary Rules of 1834 M and under the Common Law Procedure Act of 1852‟~ the plaintiff was regarded as out of Court and P.48 Since Jurisdiction over subject matter is defined by Constitution or Statute in America. v.” This is. however. Shattuck. Co. 79 The Doctrine of Appearance properly relates to the defendant. 137 U. Mm. Federal: York V. 403 (1049). 52 L. 139 N. Civil Procedure at Common Law. 153 (1940). claim Jurisdiction over the person of the defendant merely by Page 90 of 736 Hayes v. He was. the defendant or his attorney does any act with ref erence to the Defense of the action. 58 (1852). 31 Mich.L. 354 (1940). 111 (1945). Annotation: 43. 9.rc—Speeial Appearance—Waiver of Objections to Service of Process.L.s. 210 13. . such an appearance enables the defendant to object to the control. 120 Minn. 28 S.” If he failed to file his Declaration and prosecute his action upon the defendant‟s appearance. or to have made a General Appearance.Rev.~—Default Judgments Rendered Without Jurisdiction— Validating Effect of a Subsequent General Appearance. 34 LEd.Rev. 42 (1833). I. 18 N. Practice and Procedure-Appeals from Refusals of Motions to Dismiss—Special Appearance. homer. and therefore an Appearance It Ridgway It Supra. 20 Va. 45. note 42.L. Introductory. it is important to distinguish between the plaintiff and defendant.Rev. Pieading-Motion to vacate Service of Process a General Appearance. 25 A. A Special Appearance is one made for the purpose of objecting to the Court‟s Jurisdiction over the subject matter of the action or over the person of the defendant. 604 (1890) (No Special Appearance In Texas). 95 U. 15 & 18 Wet. 230 (1048). Co. IS.L. 422. Consol. therefore. without submitting himself to its jurisdiction. he was subject to a Nonsuit upon the defendant‟s Motion after a demand in writing that the plaintiff should plead. 34 Corn. which he in effect does when he makes a Voluntary or General Appearance. 44. 11 (St.L. 386. Buckingham.L.Q. In beginning the action by either an Original or Judicial Writ returnable to a Specific Court.0c7cL.Rev. 815 (1013) (Special Appearance).. Sec. 136 (1860). 493 (1940). a definition of a General Appearance. Hutte & B.Rev. Such a Nonsuit carried costs enforceable against him and his pledges. 76. Paul. Effect of Time of Execution of Written Appearance or Waiver of Service. Promulgated pursuant to 3 & 4 Will. 55 NiL. 11)05). Indiana: Scott v.47 Under Modern Law a Court can acquire Jurisdiction to render a Judgment in person-ant eithcr by a General Appearance on the part of the defendant or by the Personal Service of a Summons.Ilev.Ct.Rev.

Origin and Historical Development ia Criminal Cases to the year 1275 (New York. (London. 1783). 181 (1008). A Practical Treatise on the Law 0f Bail in Civil and Criminal Actions (Philadelphia. The Demurrer or Plea of the defendant. except in Real Actions where the defendant was proceeding against the Jand within the Jurisdiction. . If he failed to appear in response to the Summons. ~ 13. 1824).App. Page 91 of 736 . Beeley. . but which consisted of some act by which a person submitted himself to the authority and Jurisdiction of the Court. A Digest of the Doctrine of Bail. Martin. Petersdorf. see: 50. 1940). Treatises: Coke. On the Appearance of the Parties. together with the practice of plaintiff entering the appearance of the defendant. (VII) The (VIII) The Demurrer or Surrebutter of the plaintiff. which was not mere presence in the Court. Appearance. in presence of the Judges. But if he be properly served and then neglects to Appear and Plead. to enter the appearance of the defendant. Under later English law. called „narrator‟ and „advocatus‟ . except where Personal Service was unobtainable. 1764). STEPHEN thus describes how the Pleadings were once orally delivered: ~ “As the appearance was an actual one. and proceed to Judgment. TIlE PLEADINGS 19. in which instance the Ancient Mesne Process to Outlawry remained operative. The effect of this practice was to 49. so the Plead~ ing was an Oral Altercation in Open Court. 143 Ill. The Dilatory Pleas of the defendant. Antiquities of Bail. no Judgment could be rendered against him. if he failed to appear within a certain prescribed time. Mode of Pleading Civil Procedure at Common Law c. If he still failed to appear. 80 Ch. flighrnorc. Paul.service of Summons upon him. 1. on the subject of Bail in an Action at Gommon Law. The Bail System in Chicago (Chicago. Change In the Law. Art. such as giving bail 50 upon arrest. (VI) The Demurrer or Surrejoinder of the plaintiff. 178. IV. Shroder. it was deemed necessary to resort to further Process by Attachment of his Property and Arrest of his Person to compel an “appearance”. Demurrer or Rebutter of the defendant. in Cvii and Criminal Cases. hancock County. &c. Inasmuch as the Default constitutes an admission of the Cause of Action set forth in the Declaration. (V) The Demurrer or Rejoinder of the defendant. the plaintiff was authorized upon affidavit of Personal Service of a Summons or a Writ of Distringas. A Treatise oe the Law of Bail in an Action at Common Law (London. by Statute. (IV) The Demurrer or Replication of the plaintiff. &c. Any steps in the action. assuming of course that the plaintiff has stated a Cause of Action. The Various Pleadings and their order are as follows: (I) The Declaration of the plaintiff. 1921). the Court will render Judgment against him for Default of Appearance. 51. Introdnctory. COMMENCEMENT OF AN ACflON Under Modern Law there is no effort to compel the appearance of the defendant. In general. (London. 190~). These Oral Pleadings were delivered either by the Party himself or his Pleader. all that the plaintiff would have to prove is his damages. 1835).51 But the Common Law Procedure Act of 1852 52 abolished the Writ of Distringas. A Treatise of flail and Mainprise. 3 eliminate the Process of Attachment and Arrest as a means of compelling the defendant‟s appearance.” Wetzel v. 11 (St. Law Tracts: III. “Consent of the parties cannot confer jurisdiction upon a court in winch the law has not vested it. the Pleadings Commence. operated as an appearance or submission. De Haas.

27. D. Conformance to Process. if it proved to be a Point of Law. so set apart for decision was itself called „the issue‟. to the decision of the Judges themselves. their general aim was to compel the Pleaders so to manage their Alternate Allegations as at length to arrive at some specific point or matter affirmed on the one side and denied on the other. (II) Law Procedure Act. according to its nature. 76. the parties were said to be at issue (ad exitum. at the end of their pleading). Sec. Ultimate and Evidentiary Facts. transcribed. CHAPTER 4 THE DECLARATION—FORM AND GENERAL REQUISITES‟ The Commencement (V) The Conclusion 21. Several Counts in the Same Declaration. to whom alone the adjudication of all legal questions belonged. when the Judges should be prepared to pronounce their decision. 24. or a Rule of the Court. The Actual Statement of the Cause of Action. “It was the office of the Judges to superintend.. of course. Of The Proceedings In An Action. if a Point of Fact. either as an „issue in fact‟ or an „issue in law‟. by an award or order of the Court. or he may procure a copy from the officer. I. A Treatise on the Principles of Pleading In Civil Actions. or to such Trial as the Court should think proper. but. as formerly. Stephen. They are not. Ultimate Facts and Conclusions of Law. by mutual agreement. 26 (1852). 50. Formal Parts of the Declaration. according to the allusion of a learned writer. 52. or. by an adjournment of the parties to a given day. the general aspects of which will now be considered. at a given time. 1803). or it may be that under the statutes of the particular state. moderate the oral contention thus conducted before them. When this matter was attained. The first of the various pleadings enumerated above is the Declaration. 28. and it seems that the Rule was then already established that none but a regular advocate (or. and was designated.” The practice of oral pleading has long since ceased. This result being attained. In doing this. The question. 24. the parties then. 26. in case of an Issue in Law. and file them in the office of the proper officer of the Court. 22. of the Mode of Trial fixed upon. 19 THE PLEADINGS fl 81 or. „barrister‟) could be a Pleader in a cause not his own. referred it to one of the various Methods of Trial then practiced. usually the Clerk‟s office. directing the institution. The Modern Practice is to draw up Written Pleadings in typewritten form. a copy may be required to be delivered to him. 55. 25. according to the more modern term. in case of an Issue in Fact. it fell. c. Different Versions of the Same Cause of Action. C. 20. Joinder of Different Causes of Action. washIngton. Here the opposite party may examine a pleading. but are themselves properly indorsed and kept on file as part of the Record. from Its Commencement To Its Termination. When the Pleadings are thus filed they become a part of the Record of the cause. 60 (3rd ed. by Tyler. The whole proceeding then closed. Common (III) Sec. that is. 15 & 16 VIct C. FORMAL PARTS OF THE DECLARATION Page 92 of 736 In General .

A. For a short succinct statement on the Formal Parts of a Declaration. Term: COOK COUNTY To the October Terra. In the Ancient Real Actions the first Pleading was a Count The Declaration was. (I) Caption or Title of Court (II) The Venue (IV) The Body. 1928) Beppy. which is a statement in Legal Form of the plaintiff‟s Cause of Action. by William Jbhnson. see: Tidd. According to the custom and practice of the Court in which it was filed. Shipman. and the first step in this direction in Personal Actions is for the plaintiff to file his Declaration.. Cases on Pleading at Common Law (New York. also. Ifl. Cases on Pleadings at Common Law (Chicago 1923). 1 STATE 0!‟ ILLINOIS. arid to pay him for the same at the price aforesaid. the Commencement.D. or Statement of the Cause (III) of Action THE parties having been brought into Court as a result of the service of some Form of Process. on the day first aforesaid. Practice of the Court of King‟s Bench (1st Am. Paul 1916). 1 Chitty. to be delivered by the said defendant to the said plaintiff in the week then next following at the said plaintiff‟s elevator in said city. for Forms of Declaration in the various common-Law Actions. see the case of Smith sc Fowle & Dunham. In the county aforesaid. the said plaintiff. 366—392 (St. by Pleadings duly recorded. plaintiff. in the county aforesaid. 28. and depending upon the Form of the Action in each Case. 3916).. Introduction to Civil Procedure (Buffalo~ 1954). to accept and receive the said corn. and the said defendant then and there sold to the said plaintiff. See. which is a statement in legal and methodical form.D. It consists of the following parts: 20. the next step is to show. Cook and Hinton.) 9 (1834). Pleading and Parties to Actions. 1926 BODY: Arthur Brown. setting forth in greater detail the circumstances involved in the plaintiff‟s Cause of Action.Y. Suit at Law in Illinois. or Statement of the Cause of Action. with Forms. ed. the said defendant. A. Gregory. the Body. 2. Paul 1005). promised the said plaintiff to deliver the said corn to him as aforesaid. Forms of Pleadiag. Whittier and l‟riorgall. c. 20 FORMAL PARTS OF DECLARATION tion of which will appear from a typical BODY: Form of Declaration set out below: FORM OF DECLARATION IN TRESPASS ON THE CASE nc ASSUMPSIT2 CAPTION OR TITLE: Court:IN TflE CIRCUIT COURT OF VENUE:COUNTYOFCOOK. the Venue. bargained with the said defendant to buy of him. (N. but an amplification of the General Charge contained in the Original Writ. 1 Shinn. defendant. at his request. 463 (Chicago. the character and relative posi 1. 82 In general. Reppy. the Title of the Court. e. CommonLaw Pleading (3d ed. 442 (ChIcago 1896). New York 1837). Sec. ~926. But all Declarations were alike in that they contained five formal parts. ed. St Paul 1923). on the 16th day of January. ~ Page 93 of 736 . the substantive requisites of the Declaration differed. a large quantity of corn. by Perkins. 459. A Popular and Practical Introthjetion to Law Studies (3d ed. Legg. to wit. to wit. his Attorney. and the Conclusion. complains of Clarence Dowell. Inducement: For that whereas. according to Coke. And in consideration thereof and that the said plaintiff had promised the said defendant. Springfield 1885): Martin. who has been summoned to answer the said plaintiff in a plea of trespass on the case in assuiupsit. the nature of their dispute. S. at the request of the defendant. Cases on Common-Law Pleading (St. Forms of Common Law Declarations for Use in State and Federal Courts (Albany 1906). at Chicago. one thousand bushels at the price of sixty cents for each bushel thereof.The first pleading in an Action is the plaintiff‟s Declaration. Pleading and Practice in the Courts of Record of Illinois at Common Law In Civil Causes. with Precedents (16th Am. be. Warren. and to be paid for by the said plaintiff to the said defendant on the delivery thereof as aforesaid. by Ballantine. Philadelphia 1807). of all the material facts constituting the plaintiff‟s cause of action. 12 Wend. Civil Procedure at Common Law.

The Caption or Title of the Court and Term WITH respect to the Title of the Court. first. With reference to its formal parts and general compositional and physical structure. Whereby the said plaintiff has been deprived of divers gains and profits which would otherwise have accrued to him from the delivery of the said corn to him as aforesaid. as aforesaid. or any part thereof to the said plaintiff at his elevator. with reference to the usual factors and rules which govern the statement of a cause of action in any form. of a superscription of the Name of the Court. and therefore he brings his suit WrLLIAM JomqsoN Attorney for Plaintiff BAtr. p. the problem of stating a cause of action in terms of each of the eleven specific Common Law Actions will follow in later chapters. that is where a particular day of the term is stated. thus. or elsewhere. 193 (St Paul. 3d ed. 10. 4 Page 94 of 736 . thus. it is either Genera]. deliver the said corn. Such Title refers to the time when COMMENCE MENT: form: 83 Breach: Damage: CONCLU SION: Consideration or 84 Promise: DECLARATION—FORM Ch. With the Form of a Specific Declaration in Assumpsit before us. nor would. in general. Yet the said defendant did not. it consists.” or Special. c. and to pay for the same. 76. and the said plaintiff has always been ready and willing to accept and receive the said corn. but refuses so to do. Shlpman on Common Law Pleading. “In the Circuit Court of County. To the damage of the said plaintiff of five hundred dollars.flrmE‟s. at the price aforesaid.” With respect to the Entitlement of Term. and secondly. within the time aforesaid or afterwards. 1923). the Declaration may now be examined. 1955. “October Term. and has offered so to do.A‟verment of Readiness to Per- And although the said time for the delivery of the said corn has long since elapsed.

Title 25. 48 Mich. II. The Place of Trial of Criminal Cases: Constitutional Vicinage and Venue. stating merely the name of the county. 8 (1664) and of 4 Anne. In the second stage of the development the Jury went partly on its own knowledge. In order. Articles: Starke. 804 (1931). The Venue of Actions of Trespass to Land. 253 (1045). should be laid with a Venue. 1 T. 50 Mich. § 6 (1705). 4 English: Pugh v. 16 & 17 Car. Rep. 5. § 6 (1705). as well as the county. Trial by Jury and Its Devi1opment. c.3 The means of avoiding this difficulty is to Entitle Specially of the particular day in the Term when the pleading was actually filed or delivered. See 4. 49 Mich. c. though they are often in fact filed or delivered in Vacation Time. And the effect of this is that. and in either case this objection would arise: that the plaintiff would appear to have declared before his cause of action accrued.L. Warner.Va. on the subject of Venue in Common Law and Modern Actions. Venue of Civil Causes in Oregon.L. Scott. see: Treatises: flayer. 1922). or when this takes place in vacation. town or hamlet. In the first stage the Jury was not a Jury. c. 1 (New York.Y. New York: Paul v. unless proof be given to the contrary. Stevens. whereas the Cause of Action ought of course always to exist at the time the action is commenced. in the case of a Declaration so Entitled. c. e.L. 129 (1925). II. The Term of which any pleading is entitled is usually that in which it is actually filed or delivered. The rule at Common Law.L. I Ore. 65. it will sometime occasion an apparent objection. 99 Eug. it was necessary for the sheriff to know where they could be located. Robinson. there was another laid on the margin of the Declaration. was that every material and traversable allegation of fact in the Body of the Declaration. that the juror or jurors with knowledge of the facts might be selected. 7 (1951). 1. included the parish. Actions Quasi in Rem Under Section 1055. the rule requiring the laying of Venue in the Body of the Pleading became an unmeaning form.Q. Graves. Blume.Rev. 90—93 (Boston 1898). Preliminary Treatise on Evidence at the Common Law. Blame.C. 35 Yale L. The Change of Venue Problem.Litev. by the ancient practice.S. 8(1664). which. 5 Wend. 142 (1922). the reasons upon which the original rule was founded gradually ceased to have any meaning. the practice of alleging the Venue in the margin hayCommon Law. 301 (1921). the Title is of the Term last preceding. U. if a General Title is used. but in reality a group of witnesses who came into Court. The most frequent practice is to Entitle Generally. to have been pleaded on the first day of the Term. 1 (1949).Rev. Venue in Civil Cases in the United States District Court. 4 Anne. Page 95 of 736 . c. 116. Venue statutes: Diagnosis and Proposed Cure. Venue and JurisdiCtion. therefore. and on the basis of their own knowledge of the facts of the specific case.J. 20 Fed. In consequence. U. if affirmative in form.Rev. Besides this Venue. I. in Civil Cases. Fundamental Principles of Procedure In Actions at opment of the Jury. 16. But it is to be observed that a pleading so entitled is by construction of the law presumed. Crumpacher. 16. and as it was only in Term Time that the Court anciently sat to hear the pleading.) 16 (1830). and partly on knowledge gained from evidence presented in the Court. And as a result of the two statutes of 16 and 17 Car. told the Judge what happened.L.. it may appear in the Declaration or in evidence on the Trial that the Cause of Action arose after the first day of the Term of which the Declaration is Entitled. 27 W.R. Dobie. The Venue THE laying of Venue was inextricably connected with the various stages of the devel 3.the party is supposed to deliver his Oral Allegation in Open Court. at its Commencement. Thus. 1004 (1786).J. In general. it is therefore always of a Term that the pleadings are entitled. therefore. (N.

which provided that in the future “the name of a county shall in all cases be stated in the margin of a Declaration • . With this development. state of development in which jurors ceased to be witnesses and became triers of facts. And. 4 Stephen. the wrongful act and the damages) The Conclusion Page 96 of 736 .and no Venue shall be stated in the Body of the Declaration. 11 (1912). 274 (3d ed. C. or in a representative character as executor or receiver. S. 1267. Reported in Reppy. A Treatise on the Principles of Pleading. 59 So. with Precedents. subject to objection by the adverse party. annotated in Ann. as.6 But the practice continued to be observed nonetheless. Fla. by Tyler. (2) The defendant‟s wrongful act violating that right or title. (1834). ~. 787. Of the Declaration. or next friend. as appears in the form above. but in accordance with the spirit and intent of this Rule.Cas. 745 (1914). 63 Fla. Attached or C. Harris v.° The Commencement WHAT is termed the Commencement of the Declaration precedes the Statement of the Cause of Action or Body of the Declaration. also. correctly named. 272. 64 So.8 But the enforcement of this rule did not call for the statement of a correct Venue except when the Action was Local. Of the Principal Rules of Pleading. going on knowledge furnished by the evidence heard in open Court. e. However. or if an infant. 1916E. the pleader will find that the facts prescribed by the substantive law as necessary to constitute a cause of action in a given case. 273 (3d ed. .” 7 And presently. (3) The consequent damage. of course. See. in eases which required local de. for example.Stephen. Springfleld 1885). D. 146. c.scription. 175. TV. an end was brought to the former practice by the Rule of Hilary Term.. Arrested.Sec. Spltler. A Treatise on the Principles of Pleading. the Mode in which the defendant has been brought into Court. II. Pleading and Parties to Actions.”” Of course the essential elements of any claim of relief or remedial right will vary from action to action. the right. for it is here that the plaintiff states the facts showing his cause of action. and in Transitory Ac-tons the Venue could be laid in any county. on analysis. 85 Washington. the Venue was still to be laid in the Body of the Declaration. II. Trespass on the Case in Assumpsit)0 The Body or Statement of the Cause of Action THE Body of the Declaration is the most important part of it. D. Cocoanut Grove Development Co. may be classified under three heads: (1) The plaintiff‟s right or title. 20 FORMAL PARTS OF DECLARATION ing been found sufficient for all practical purposes. Of the Principal Rules of Pleading. 4 Wm. to wit. Summoned. Henry v. under the more recent practice. Appendix B. 1 Chitty. so as to disclose the three elements essential to every cause of action. 1892). In the meantime the Jury had reached its third. by Tyler. Served with Process. as a corporation. But. and the Form of Action. the Venue is usually set out at the Commencement of the Declaration. Washington. the facts constituting the cause of action should be stated with certainty and precision. and in their natural order. It comprises the Parties. the Capacity in which the parties sue and are sued. 1892). 9. 276 (16th Am. 792 (Buffalo 1954). Rule 8. But what is a cause of action? Gould defined a cause of action as a set of “facts which entitles the plaintiff to the relief claimed. II. 67 7. by a guardian. ed. by Perkins. Introduction to Civil Procedure. whether as an individual. whether nominal or substantial.

A Treatise on the Principles of Pleading. 2 Polloek & Maitland. Declaration. Art. § 2.” 14 13. the plaintiff was required to produce his proof. or Statement of the Cause of Action. II. This “ad damnum” clause is properly a part of the conclusion in all Personal and Mixed Actions. by which the plaintiff was required to present proof of his Declaration at once. Walter v. 1 86 Saunders. following the 10. Declaration. not this suit. 253. It is. e. Although the practice has long been discontinued. Anciently. c. in all Common Law Actions it is still customary to conclude the Declaration with the phrase “and thcrefore he brings his suit. 88 Eng. Oxford. by Will. a suite or train of followers prepared to confirm his Allegations. DECLARATION_FORM SectIon 59. Introduction to Civil Procedure. flayer. The principal points to he shown in the statement of a cause of action are: (I) The plaintiff‟s right. and £ for their detention. At Common Law. 12 (Boston 1898). Forms of Actions. long after the reason for its existence has been swept away. p. a following of witnesses. Introductory. ~ 33. 295 (7th ed. Laughton. 603. according to Martin. Gould. 604 (Cambridge. and Trial by Battle and Ordeal was still in vogue. 11.” etc. The Production of Suit THE Production of the plaintiff‟s suit (secta). I. „416 (Philadelphia 1837). (II) The defendant‟s wrongful act violating that right. Bk.” THE ACTUAL STATEMENT OF THE CAUSE OF ACTION 21.THE Conclusion of a Declaration is the Formal Statement at the end. C. 1775). is an example of one of those instances. and this rule was enacted into statutory form by the Common Law Procedure Act of 1852. 3 (6th ed. II. Albany 1909). 29 (St. 12.” 14.Rep. In consequence. 4 Body. Civil In General Procedure at Common Law. but it eludes 15. 92 (Buffalo 1954). Paul. the original formula there used to announce the plaintiff‟s readiness still remains with us. but his suit. Commentaries on the Laws of Eng]and. (III) The consequent damages. where the form of an old procedure is retained. The Declaration must state distinctly and with certainty every fact that is essential to the plaintiff‟s prima facie case. c. 20. “to the plaintiff‟s damage of ~ and therefore he brings his suit. History of English Law. in the primitive period of Common Law Procedure when Pleadings were still made Orally.” the signature of counsel was not required. VIII. 1905). 1895). or his sect a— that is. not infrequently noticeable in Common Law Pleading. Pleading and Evidence in Civil Actions. and even before it was called into question upon the pleading. Ch.13 a Specific Form of Conclusion was prescribed. 3 Blackstone. No Essential Allegations can be imported into the Declaration by inference or intendment. I. 10 Mod. c. 1. By the Common Law Procedure Act of 1852. Preliminary Treatise on Evidence at the common Law. It should be observed that the plaintiff brings. 715 (1714). See Beppy. Page 97 of 736 . THE term “cause of action” 17 is much used in pleading and procedure. which provided: “and the plaintiff claims £ or [if the action was brought to recover specific goods) the plaintiff claims a return of the said goods or their value.

18 Cornell L. 21 STATEMENT OF CAUSE OF ACTION 18 exact definition. 272 (1942). 725 (1916). to put the matter in another way. which caused a grievance for which the Law gives a Remedy. 412 (4th ed. Id. The Elusive Cause of Action.Div. Simplified Pleading.L. The Code “Cause of Action”.16. Misjoinder of Causes of Action in Illinois. 148. IC Calif .Rev.J.Bev. 42 Mich. of Pa.Rev.J.Rev. 3943 (1926). which may be stated as follows: (1) 2‟ ~fajor Premise: The rule of law relied upon by the plaintiff—by rule of the Substantive Law of real Page 98 of 736 . 257 (1943) . 25 CoLL. A Study of the Statutes which Contain the Term “Subject of Action. 82 U. we are now in a position to undertake the Fram ing of a Declaration in which a cause of action will be alleged. And that “The Cause of Action is the thing done or omitted to be done. 4~ 340. 215 (1933). McCaskiIl.Rev. 33 Yale U. Joinder and Splitting of Causes of Action in Nebraska.‟ 18 Cornell L.Q. 22 Q. 10 A. 205 (1931). The Code Cause of Action. Splitting Cause of Action.L. Wheaton. Clark. Pomeroy. On the subject of the Action under the Code. Blume. The Scope of a Civil Action.Rev. Wheaton. 315 (1940). Form of Action selected to vindicate an alleged legal right. Clark. 11 Cornell L. 26 Neb. A.L. 82 U. 482 (1928).. Probably it is unsafe to define it more specifically than to say that the cause of iS consists of some combination of facts or events.L. of Pa.L.. Gavltt.L. A Rational Theory for Joinder of Causes. the question as 87 to whether a plaintiff had stated a good cause of action did not turn on the facts of a particular transaction. 243 Mich. Greene v. or some transaction from which a right to remedial relief arises. 095 (1934). Clark.J. illume. „61 (1922). Q. 203. 128 (1888). 498 (1938). Clineburg. 42 (194W.Rev. Code Remedies. Eote: The Meaning of the Words “Cause of Action” as Used in the New York Codes. therefore. on what constitutes a Cause of Action at Common Law. of Pa. Pleading—Splitting Causes of Action— Counterclaim in Court of Limited Jurisdiction.Eev. Wheaton. 19 Neb. also. by Bogle. In general. 88 U.L. The Code Cause of Action. 879 (1925). or. under Modern Codes and Practice Acts. 614 (1925). Clark..L. etc. that is. Its Sec. 4 U. 156 (1940). 1. The Cause of Action—A Reply. 11 Cornell U.L. 111 ItE. Actions and Causes of Action. Harris. see article by Wheaton.Rev.U.Q. 129 (1933). 18. Jury Demands in the New Federal Procedure.Rev.L. 817 (1924) McCaskill.U.Rev. Sec Read v.Rev.” see.J.B. and under the New Federal Rules of Civil Procedure. Boston 1904). property or tort.LBull.Rev. What is meant by this? 20 It is this: since every liability consist of two elements—a given combination of facts and events.Rev. Joinder and Counterclaim. If these two elements are established. whether the Declaration stated a cause of action which fell within the theory of liability represented by the Definition.11. Comments: The Harlan Fiske Stone Moot Court Competition. of ChLL.Rev. A Legal Syllogism WITH this working definition in mind. 29 Iowa U. which confers the flight to Sue. See. Easy Pleading. 14 1Il. 34 Yale LJ. Section fl~ 85.Q. 883 (1927). 28 (1940). Arnold.. In this connection it should be remembered that a Declaration is a Syllogism with the Major Premise left out. 630 (1925). 354 (1934). 22 Col. whether of contract.20 (1932). A Pragmatic Definition” of the Cause of Action. The typical elements or operative facts underlying these rights and which entitle the plaintiff to some form of remedy differ with the various kinds of actions.L. 502 (1931). The Causes of Action. What is a Cause of Action. 22 Cornell L. Brown. 22 Minn. 459 (1028). 272 III. Pleading: Equities Affecting Legal Causes of Action as Defenses or Counterclaims: Mode of Trial of Such Issues. McCask‟dl. Judgment for the plaintiff will be entered. At Common Law. plus a rule of substantive law attaching legal consequences— it follows that a complete statement of the entire right of action would inelude both the combination of facts and the rule of substantive Jaw relied upon. Trial of Actions Under the Code. 281 (1937). of Pa. 185 (1935). 30 Col. but on whether the plaintiff or his attorney had properly diagnosed the legal effect of the facts. Such Judgment naturally follows from certain premises of fact and of law. The Declaration. Gavitt. 156. Gavitt. 34 Yale L. IsicCaskill. 6 Irid. Manner of Stating a Cause of Action.Rev.L. 82 U.Q. 20 Cornell LQ. 36 Yale U. Fish Furniture Co. 35 Ill. Causes of Action Blended. The Code Cause of Action Clarified by United States Supreme Court. Ancient Writs and Modern Causes of Action. 232 (1933). Clark. McNish. see: Articles: Howe. 41 (1927). 1 (1936). 581 (1920). the wrong against the plaintiff. Id.

he may do so by demur. his right of action fails. or trespasses on my property: (2) Minor Premise: The combination of facts relied upon by the plaintiff—that the defendant has ridden over my corn. 88 (3) has a which defendant. 2 (1898). e. 183 (1919).property. Duty. In the past Quarter century there have been re facts or events relied upon by the plaintiff.or in tort. DECLARATION—FORM Cli. the plaintiff right of action against defendant in he may recover damages against action is brought in order to obtain some particular result which is termed the remedy. as that he was in the actual or Premise or Rule of Substantive Law relied constructive possession of the land in an Aeon by the plaintiff. Ponaeroy. that necessarily Involve power.2‟ and was entitled to the postiff~ if the defendant seeks to defeat the plaintiff by disputing the combination of 21.. says there is no such that he had a General or Special property in-Rule of Law as that relied on by the plain. and Disability. 700. the former consisting of the Facts which give rise to the Action. Legal Analysis and Terminology. No-Right. A Confession and Avoidance. If both „the Rule of in Judicial Reasoning and Other Legal Essays (New Law and the Facts relied upon by the plain. PowerLiability. following the suggestions of Hohfeld. In an article by Professor Arthur L. the ID. The plaintiff must allege that he ant‟s alleged liability by disputing the Major had a right. which analyzing a legal problem. 35 CoLLitey. Boston. that all significant legal facts Liability. 41 A. 70 Conn. latlonships are embraced within the term. 4 If the defendant seeks to defeat the defend. however. If. by logic. damages may be recovered against one who rides over my corn. 707. such as the General Issue. Wildman. 1923). Page 99 of 736 . Buekingham. III. The term powers covers since the Court takes Judicial Notice of the those legal relations as viewed by the controllint Rules of Substantive Law of the jurisdiction party and the term Liability Includes the same re lationship as viewed by the party controlled.terest therein. 33 Conn. This final result is not the „Cause of the Action:‟ it is rather the „Object of the Action. And a “Cause of Actioa” should be distinguished from an “Action”. More recently.‟ “ Wildman v.“Every Conclusion: Therefore. the Judgment of the Court inevitably and an attempt was made to define legal relations in logically follows. however. or ring. One of the earliest ef denies all the material allegations in thework on Fundamental Legal Conceptions as Applied plaintiff‟s Declaration. the conclusion orJ. Privilege. unless the defendant seeks terms of Right. tiff turn out to be true. in effect. forts was Professor Wesley Neweomb Eohfeld‟s peated efforts on the part of legal scholars to clar to avoid the alleged liability by pleading IRProfessor George Goble. Power. takes the view that our basic legal Premise. ~ 347 (4th ed. which. Clorbin. Code Remedies. 237 (1868). the Redefinition or Basic Legal Terms. 80.Haven. that is. the latter being a Proceeding in Court. 1. plaintiff fails to establish the Major or Minor 535 (1935).tion of Trespass quare clausum fregit. 29 tale L. It should now be observed. in an article entitled. ify legal thinking by promoting a better underhe may do so by pleading some Form of standing of legal terminology used In the process of Traverse. See Lamphear v. Immunity. 1904).

in an Action of Trespass quare clauswn fregU the trespass by the defendant must be shown. only the Facts. with ty In dispute. privileges. in an Action for the Breach of a Contract. that the performance of the contract became due. however.” except for the Restatement of Torts. The general rule Is that an action of a Declaration is said to be a Syllogism with a general or special property interest In the proper-the Major Premise left out. so likewise. binding the defendant to perform or forbear some act for the plaintiff. And now.erty. that some right of the plaintiff should have having several other meanings. as in the Form of Declaration defines a person in possession of a chattel as one who has physical control with the intent to exer set out above. the term “interest. And hence the reason whyTrespass may be maintained by any person bavinr terminology. If he has not abandoned It. This appears from the Declaration given above. the defendant‟s wrongful act.” As applied actual physical possession. for injury without damage (“injurkz sine dantno”) does not give rise to a cause of action. we may consider the statement of the action began. but it is also necessary to go further and show that the plaintiff has been damaged thereby. SectIon 216 of the an action of Special Assumpsit for the breach Restatement of the Law of Torts. be alleged in the Declaration.” although. usually refers to a been violated. Thus. for the plaintiff to show a right. and that he failed to perform it. under the auspices of the American Law Intion. as applied to the gcn-• tributively to mean any one of them.of another. But as used In Section 5 of the Replaintiff‟s right. the Rule of Law or The Editors of the Restatement of the Law of Prop-Major Premise is not stated lxi the Declara. therefore. and in an Action of Trover a showing of conversion by the defendant is essential. and stitute. in In the field of intentional Torts. in an action of Tro— ver. or Minor Premise. but it is also necessary to show that the defendant has violated some duty arising from the contract. and it is therefore necessaryend field of Torts. The injury as well as the right must. This has been construed to include the syllogistic character of a Declaration inor a right to immediate possession at the time the view. And. although be is no longer In physical And the same is true of an action CX (1CiiCtO control.statement of the Law of Property. the word “inter est. The original Restatement of Torts fendant giving him the legal right to require also Included one who has been In physical con trol of a chattel with intent to exercise anch some act or forbearance of the defendant. Second Series. and no other Sec. the plaintiff must allege a val-else such control on his own behalf. constructive possession. The Consequent Damages IT is not only necessary to show that the defendant has violated some right of the plaintiff. that is. used “generically to Include varying aggregates of The Plaintiff‟ s Right rights. has been and the consequent damages. were confronted with this same problem of the Conclusion. Thus. or on behalf legal relation or relations. it denotes any human desire. The Defendant‟ s Wrongful Act Violating That Right NO cause of action can arise unless some right of the plaintiff has been violated or injured by the defendant. it is not only necessary to show the existence of the contract. powers and immunities and dis IT is of the essence of a cause of actionto Trespass. of a contract.control. Page 100 of 736 .22 In most cases. 21 STATEMENT OF CAUSE OF ACTION 89 session of the property. id agreement between himself and the clé.over which it presides.

after Final Judgment. to illustrate.Litev 418 (1921). Legal Conclusions. Manner of Stating In Cause of Action. 185 (1935). there are ordinary facts and extraordinary facts of law. Thus. 305 (1876). the defect is available on Demurrer at the Pleading Stage. A fact may be said to be anything of which a past or present existence may be asserted. Statement of Fact in Pleading Under the Codes. and on Writ of Error. Cook. you have not as yet touched the problem as to what particular kind of facts must be alleged in order to properly plead these so-called essentials of a good cause of action. Pleading “Material Facts. is a fact. but from which. 274 (1885). 378 (1932).person has obtained possession. 2L That where a wrong is shown. The quoted matter in this note is printed by pennisslon of the American Law Institute. 21 CoI. what facts must be stated. „Wheaton. a violation of that right and damages. in the Cli. nominal damages may be recovered. 91 U. Wrongful Act of Ejectment. where the Declaration alleged no Damages from negligence. Thus. a pleader must consider first. If no other person is In possession. be stated? And these inquiries raise the question as to what. 622. if no other person is in possession. that damage will be presumed in any given case. 4 Page 101 of 736 . in drafting his Declaration. after Verdict and before Judgment. and second. 945 (1929). Swain & Son v. Section 157 defines a person in possession of land as Including one who Is in occupancy of land with intent to control It. after be has ceased his occupancy without abandoning the land. The fact. Kamka.L. whatever their character. It. or ultimate fact is always available at any stage of the proceedings. and Damages. or a failure to state a material. 16 MinnLRev. Ordinary facts may be separated into two groups. on Motion in Arrest of Judgment. Evidentiary Fact Defined AN evidentiary fact is a fact to which the Substantive Law does not attach legal consequences. or has been but no longer is In occupancy of land with intent to control It. or has the right as against all persons. 236. of I‟a. 83 Md. What is a Fact BUT when you have found that you must allege a right. under the general principle that ordinarily a Substantive Defect. 23In general. if.E. In Case for Slander damages is the gist of the action. in what manner and form should such facts.S. does not dispense with the necessity of an averment of damage in the Declaration. see Articles: Cook. an ultimate fact may sometimes be inferred. for purposes of legal analysis. or has the right as against all persons to the immediate physical Con trol of a chattel. Chicago 13. 247 (1911). 97 N. 20 Cornell L. as an incident of stating a cause of action.. 23 In order to frame a good declaration in which a good cause of action is stated. to immediate occupancy of land. ultimate and evidentiary facts. Lyon.Q. if stated in sufficient detail. the plaintiff omits an Al— legation required by the Substantive Law. “Facts” and 90 DECLARATION—FORM quences. a matter to which we may now address ourselves. 225. If. see Pollard v. And. It sometimes may be inferred from the statement of a sufficiently large number of evidentiary facts. then. Ultimate Fact Defined action for a AN ultimate fact 23 is any fact to which the substantive law attaches legal conseLEd. so also in a private public nuisance. 252 III. & 0. however.” 77 U. it was held fatal on Demurrer. for example. no other person has obtained possession. Oavitt. on what facts must be ailei~ed nt Common Law and under modern codes and Practice Acts. There he discovers that he must allege Right or Title. Co. Dowdall. And in Treusch v. he must look to the Substantive Common Law governing real property to discover what Ailegations he must allege in his Declaration to state a good cause of action. if a plaintiff wants to institute an Action of Ejectment against a defendant.Ecv.

91 The process of differentiating. 502 (1883). 1092 (1915). had an immediate right to possession. Page 102 of 736 .L. San viille. and such violation creates a Defect in Form.St. Law and Feet. 119 A. Some observance of this distinction is necessary if the pleadings are to make the issues clear. 997 (1939). we are for the first time in a position to state the General Rule as to what facts must be stated in order to state a good cause of action. and could formerly be reached by Special Demurrer only. of Blackacre. Decision: New York News Pub. the “Material” or “Issuable” Facts cannot be omitted without destroying the plaintiff‟s cause of action or the defendant‟s Defense. Only the essential facts should be alleged which form the basis of the claim for relief. Robertson. on Evidentiary Facts. 792. 165 App.. which make up the probative matter. 176 (1896). and not Conclusions of Law)° 24. 22 ship Co. declared: “This latter con teation Is no doubt true.L. 709 (1914).Y. in the confused history of a case. The subordinate facts. Patterson. reversed in 214 N. but only evidence of title. 500. 666.‟ Section 43t But the Rule of Pleading at Common Law was the same. This excludes the details and particulars of evidence by which these fundamental points are to be established. which may be reached by Special Demurrer. Ltd. but as the Evidentiary Facts alleged are sufficient. but if the objection be simply to this manner of Pleading the Ultimate Facts. and not one of substance. also. 223. 22 So. This requires a „plain and concise Statement of the Facts constituting a Cause of Action.Bev. where it was contended that the Declaration alleged Evideatiary as opposed to Ultimate Pacts. proper to be reached by General Demurrer.E. all of which are in substance as above stated. See Camp & Bros.Div. may vary ULTIMATE M~1) EVIDENTIARY FACTS indefinitely. vNatlonal Steam- See. 3. not Evidentiaty Facts and not Conclusions of Law.Rep. See McCaughcy v. or was seized of Black-acre. 4 U. 7 N. Annotation: Pleading Duress as a Conclusion. (1937).. and also for the intelligent statement of the cause of action in the Declaration. 662. the plaintiff‟s Declaration is defective in having stated an evidentiary fact. that Facts. 42 N. 1303 (1942). Allen v. viz. but the “Ultimate”. not mere Conclusions of Law.Y. if true. the CourtS in discussing the question as to whether stating Evidentiary Pacts was a defect in form or in substance. In Muser v. possessed. were to be stated. 55 Harv.Y. he must allege that he owned. 39. 17 F. the Ultimate or Om erative Facts from the probative and collateral circumstances involved. WITH these distinctions in mind. is the first step in the diagnosis of the case. “The only question. 20.. as the case may be. 514 (1895). by way of title. Morris. must allege ultimate facts. The Substantive Law of real property requires that in order for the plaintiff to state a good cause of action. As a “grant deed” of Blackacre is not title.E. The Ultimate and Operative Facts should be pleaded. the defect In this respect is one of form. 568. 148 N. that he had a “grant deed” of Black-acre.Y. to establish conclusively the Ultimate Pacts. the defect would he one of substance. 214. Co. whereas he should have al leged the ultimate fact that he was “seized” “Statements of Fact”.” 25. 128. 150 N. 46 P.Supp. If the Evidentiary Facts alleged were Insufficient in Law to Establish the Ultimate Facts. let us suppose that the plaintiff alleged. and not evidentiary facts. 478. The Sufficiency of the Pleadings Is to be determined by the New York Code of Procedure. then.” Brown. Schuctte. 59 Am.Action of Ejectment referred to above. simple and certain. Hall. Lii.Rev. Is whether the Complaints. tbe defect is one of form. 108 N.. The General Common Law Rule is that the plaintiff. $9 Pla. DeCordova v. 796 (1897).25 ULTIMATE AND EVIDENTIARY FACTS 22. in order to state a good cause of action in his Declaration.Chi. the casual details and dra matic circumstances. to discover whether the plaintiff has a right of action. I Chit P1. See. 117 Cal. contain what is technically a Sufficient Statement of a Cause of Action. 535. v.°4 Stating an evidentiary fact violates the Rule of Pleading that Ultimate Facts must be stated.

e.As observed earlier. “For the Purpose of Pleading only the „Ultimate Fact to be proved need be stated. 8. definite and concrete enough to direct attention to the basis or ground of the plaintiff‟s legal contentions. 76 S. Croft v. by Gould. Jenny. English: rlowman‟s Case.Va. 323.” McAllister v. 232 (1858). Story. no necessity for further minuteness in the pleading. it still is not necessary. as to a declarattoa otherwise good. but they have no place in the Pleadings. 175. The Averments in the plaintiff‟s Dec laration or the defendant‟s Defense should he of the Operative Facts. 77 Eng. Mathewson. T. The circumstances whith tend to prove the Ultimate Fact can be used for Purposes of Evidence. Brewster. Si Nil. as the Codes retain but one form of action for both legal and non-legal remedies. Co. there is. 1879). though not expressly prescribed. Wilhams v. Evidence Should Not be Pleaded. 9 Coke Ia. Southby. be stated in detail. tending to certainty. contemplate. It being there often essential that the Facts which are the Subject of the Action. Boston. Jenny v. If the pleader wishes to allege that a certain deed was not recorded he should not allege that he searched in the proper office in vain and failed to find the record. 4 (1660). XIII. 125 Eng. this is evidentiary matter. For instance. 324 (34 ed. although a particular fact may be of the essence of a party‟s cause of Action or Defense. Pierce. they must reduce the case to its essentials.. St.Rep856. which the plaintiff is seeking to establish against the defenthnt. 863 (1838). but so that that object be attained. 112 Eng. It is the office of a pleading to allege the ultimate facts.) 249 (1843). Commentaries on Equity Pleading. Indiana: State ex rel. he should not go into an historical narrative of how the defendant went to the window and the agent sold the plaintiff a ticket and who checked his trunk. 8. Law of Pleading Under the Codes of Civil Procedure. 735. 10 Tex. the application of the Rule Is The rule under consideration is not noticed in Equity Pleading strictly. when the issue comes to be decided. 83 Eng. Rule V. baggage. SmIth v. Willes 131. Fidler v. Steuben County Bank v.Rep. to state such circumstances as merely tend to prove the tnath of the fact. Rules Governing the Statement. and therefore.Ed. Paul 1894). Anderson v. Pennsylvania: Hartman v. 674 (1842). if we re vert to the general object which all the rules. Keystone Ins. (N. 3. a Deelaratlon that defendant negligently allowed a fire to start on his own premises need not describe the start of the fire or other circumstance of its origin. See Bliss. are not required to be alleged. 36 N.27 In other 27. 1017 (1700-01). RumS barger Lumber Co. 1094 (1738). 5 Hill (Ni. See also. & ID. in general. it is a well-settled Rule of Pleading that it is never necessary to set forth mere Matters of Evidence. Mabaffey v.Rep. which go to make up the evidence by which the affirmative or negative of the issue is to be established. 466 (1853). a development of the question in controversy in a specific shape. 743 k1583—84). so that a statement of it is indispensable. (tad.) 656 (1836). 182 (1912). Page 103 of 736 . he should i-iot set forth the links in his chain of title. But at the same time. 15 Wend. 90 U. But see. 1 (9th S. 20 Wend.Bep. Rep.) 57 (1838). Tb. This implies. Hence. 24 L. 21 Pa. Eaton v. (N~Y. Delevan. 6 Blac‟kf. Carth. 615 (1877). for.E. if the pleader wishes to allege that the railroad contracted to carry the plaintiff as a passenger on its train with his sometimes difficult. as this would create an immaterial issue. Bayaes v.H. The Ultimate or Operative Facts are the Facts required by the Substantive Law. And if the plaintiff wishes to set up that he is the owner of certain land. as seisin is the Ultimate or Material Fact to which the law of real property attaches the legal consequences of ownership. Leonard. 90 Eng. WIlcox. V ~ 265a. words. 71 W.. Groenvelt cc Burnell. S Ad. 156 (1871). New Hampshire: Watriss v. 314. the attainment of a certain issue. 1000. New York: Church v. and. 1 Gale & D. 491. Kuhn. he should allege that he is seized of the land in question. that is. 25. ULTIMATE FACTS AND CONCLUSIONS OF LAW 23. c.Y.ltaym. Ia. in alleging it. it is these Facts which the party needs to establish to win his case)8 They must be facts. The reason of the rule is evident. Wig-gin. Gil-man. Rains. as we have seen. n. as has been shown. 831. 520 (1853). and hence may be brought forward for the first time at the Trial. But in Code Pleading the Rule is fully recognized. those subordinate facts. 87.) 173 (1842).

essential to constitute a prima facic Cause of Action.E. County Com‟rs of Middlesex Co. Cli.Y. It depends for its soundness upon undisclosed or unstated facts. 31. v. 822 (1902). Boston. 19 Ann. by Bogle. 283 (1921). v. and the Court cannot read into the Pleading the Pacts necessary to raise the issue intended to be raised. 194 III. c. Carter.C. 283 (1921). 230 Mass. Ft. 62 N. 100 S. must be Specific and set forth the Concrete Facts from which the Conclusions follow.. California Packing Corporation v. Statements as to the validity or invalidity of certain transactions. with sufficient detail and certainty to apprise plaintiff of the nature of the defense and to enable the Court upon Facts admitted or found to decide whether the matter relied on constituted a valid claim to the relief sought. see: Campbell v. State. And an Allegation of “Valuable Consideration” is a conclusion in Common-Law Pleading. Legal Conclusions. Atlantic Coast Line It. That tIle Act must be shown to be negligent see Wright v. A Declaration alleging the operative facts specifically. 551. on Fraud.) 072 (1910). v. Helmiek v. General Principles of Pleading. Dillon. That the best Pleading Is that which states Facts and not Conclusions of Law.Va. 125 Va. 870 (1912~.Cas.L. 562 (4th ed. 131 N. Freidlander v. Felder. Cf. Sharp v. 140. 131 N. 17$ Iowa 740. Boston. 23 (1912). and the facts stated with particularity and certainty. Wilson v.E. See. III. 13 Mich. 384. It. Illinois Steel Co.Y. Little York Gold-washing & Water Co. III. 109 A 43-1 (1020). Kean v. RapIer. Pomeroy. 58 So. the characterization of acts or conduct as negligent ~„or wrongI Boyce (Del. 11.. 441 (1577). 38 App. Instead of generically charging negligence was cor 92 DECLARATION—FORM Sec. Code Remedies. The defendant is entitled to know the ground specified on which the Charge is made. A statement that the ULTIMATE FACTS AND CONCLUSIONS Page 104 of 736 . 821 (Fla. 135 MU. nnd of the parties to state the premises. 1904). Keiley Storage and Distributing Co. People v.E. 63 Fla. without alleging facts from which those conclusions are sought to be drawn. Hamilton. Hagan. 848 (1910). H. by Bogle. 76 A. General Prineipics of Pleading.. 239 Mass. Heinman v. 12 N.) 580.C. Mitchell.C. 271. 30. 269 (1920). Walker. 119 Va. 31 Cyc. 670. 21 R. Ostrowakl. (N. B. THE Averment of the Operative Facts.and not of mere Conclusions of Law from such Facts Often the distinction is one of the degree of particularity required in describing the particular matter or transaction involved. A Declaration which merely states Legal Conclusions is insufficient. 126 N. Forbes v. also. 208 (1912). 564. Guyn‟idotte Timber Co. 565. 23 defendant is indebted to the 93 and the existence of a legal duty or obligation are often mere Conclusions. 234 (1016).E. 440 (1918). Florida Life Ins. Code Remedies. Cot v. A Plea alleging mere Conclusions of Law. was properly rejected. see Pomeroy. Co. 100 NW. Keyes. Ryder. 376.E.L. are insufficient1° The Allegations should be Specific. v. e.S. 207 (1565). For many illustrations of Allegations held to be Conclusions of Law. 21 R. 90 U. 80 SE. 127. It is the Duty of the Courts to declare the conclusions. 171 Ill. without setting forth the Specific Acts which constitute Fraud. also. Boston & M. 127. 566 (4th ed.. 439 (1910). 90 So. 433 (1855). 228 N.. An Allegation that a certain act was within the scope of employment is a Conclusion of Law. 40. 666 (1919). 70 W. 656. Boston & M. 74 SE. An Allegation that a municipal corporation “became entitled” to divert water from a river is a Conclusion of Law. 66 SM. Co. 602.D. 656. 4 Allegations of Fraud. v.App. 110 Va.29 General 29. County Com‟rs of Wddlescv County. 0-13 (1912). 305 (1916). 475 (1910). for Use of Brown. v. 199.5. 52—05.1922) (Facts constituting the Fraud should be Specifically Pleaded). Stonegap Colliery Co. 1904). 24 LEd. Lauderdale Mercantile Co. See. annotated in 25 LEA.

In Common-Law Pleading. 58 (1909). to what degree—are. it was held that Averments by the plaintiff that obstructions were “wrongfully” placed in a street. which is a method of stating their net force and effect in law. but the real substance of the facts making up the case. nail v. if the latter. 27 Note (1918). Ltd. 177 Cal. Fundamental Legal Conceptions. 33. Fuller. In many situations a single convenient term is employed to designate (generically) Sec article by Cook.. upon which the right to relief depends.. FIeld. as a means of eliciting the precise point of fact in dispute between the parties. and Conclusions of Law. 169 P.37 would be a Conclusion of Law to allege that it was the defendant‟s duty to erect guards about a certain excavation. David Dudley Field said of the Common Counts: “They (the Courts and the Lawyers) made the rules and they defend them. 568. from the operative or Issuable Facts. 72 So. Payne v. so as to disclose not the minute particulars. In referring to this tendency toward generality in Pleading. Camp & Bros.36 On the other hand.g. Peninsula Grocery Co. Fundamental Legal Conceptions. 23 laIc Li. Hooper & Co. 590. Treadwell. It is sufficient to allege that the plaintiff is the owner of certain land or that he was possessed of certain chattels. Bank „v. nil debet. as an “Ultimate Fact” is necessarily a conclusion from inter‟ mediate and evidentiary facts. Corinth Bank & Trust Co. 87 N.” would constitute a legal Page 105 of 736 220 (18*30). 937. and they contrive every means in their power to conceal it. a Common Count states only Conclusions of Law. B. the facts constituting fraud. Law to allege that the plaintiff not entitled to the possession. e. 173 Cal. 158 P. 21 Col. other.” or that a certain sum is now “due. or assist in analyzing and presenting the Issues of Law and Fact upon which the indebtedness depends. 7.plaintiff in a certain sum gives no facts to charge the defendant. 796 (1897). Itohfeld. where operative facts are contrasted with evidential facts.J. such as ownership or possession. Williams v. City of Chicago. see Sheffield sat.38 And an Allegation that a deed was “procured by fraud. on the 22 So. 1115 (1918). 3°. 3 Mode of Pleading is often sufficient as to certain matters. 869 (1917). a General David Dudley Field: What shall be done with the Practice of the Courts? 1 Speeches. Mair v. It is not always easy to distinguish the de tails of evidence. 853. are frequently required to be alleged in comparatively detailed form. 161 32. and no great er particularity is required than the nature of the sort of thing described will conveniently admit of. 170 F. [1913] A.C.L. Wlnhelm v. on the one hand. Rio Grande Rubber Estates. Hall. 792. under forms the most general and unmeaning that can be imagined. 883. 238 IlL 23. Fuller v. or Not Indebted. Cheda v. A Statement of an Ultimate Fact In Pleading is not objectionable as a Conclusion of Law. without alleging the specific circumstances. Sodkio. 35. 410 (1021).. it is permitted under the Common Counts to state this Conclusion of Indebtedness. but it is accompanied by some general statement of the ground of the debt. And Avernients must be sufficiently specific. Gartlan v. 864. 414. Rohfeld.Rev. also.” ~ certain miscellaneous Operative Facts. the facts from which that duty might be inferred by the Court being absent. 75 So. This does not disclose the real nature of the liability. 107 IILApp. Statements of Fact in Pleading Under the Codes. and permitted to remain there an “unreaaenable” time. 145.. v. 517 (1917). Thus. Arguments and Miscellaneous Papers 236 (New York. based on considerations of policy and convenience. 1025 (1916). like other Rules of Law. 275. “The Rules of Pleading determining whether Allegations must be Generic or Specific—and. A. That a general Allegation of seislu or of ownership Is an Averment of an ultimate fact. ‟ While the pleading must have certainty and particularity in the Averment of Facts. 23 Yale L. of degree. 39 FIt 533. C. . 1884). (1903). and not a Conclusion of Law. See. 172 (1917). the mere Averment that the defendant is indebted for this or that. It is often a matter reetly sustained. it would be a Conclusion of 31. The General Issues at Common Law are usually denials of Legal Conclusions instead of Denials of the Facts from which the liability is inferred.” a Instead of stating the concrete facts of the claim. 16 Cal. ITS Cal. were Coneluslonu of Law. In Lefkovitz V. 196 Ala. 25 (1913). 16. Folinar. 199 Ala. 75 So. 127 (1916). 637. 73 Fla. 16.

200 Ala. 85 N. Light & Power Co.W.App. 286 Iii. By. B. 41. 603 (1900). 843 (1919). Several Counts may be either of one or two descriptions: or (1) Statements of distinct causes of action. (Ind. 113 A. see Schueler v. Co. Alabama Fuel & Iron Co. Creeey v. Sweasey. (1901). unless they could not be negligent under any circumstances. 4 ligence might be inferred should be set out concretely and in detail. “Plehding. 658. 202 Ill. 590. 898. 80 W. flush. as against a General Demurrer.App. B. Co. & St. L. Birmingham Ry. Fromm. 38.App. & St. 252 (1921). 234 III. 176 P. Negligence. 933 (1917). 121 N.Va.L.Louisville & N. 86 So. Co. New Staunton Coal Oo. Tatum v. 687. By.E. 230. See. Jay.” is a Conclusion of Law. 238.. 9 N.E. otherwise Pleadings would become intolerably prolix.. 31 Cyc. without setting forth the details of the acts causing the injury. 141. Bolt v. 62 WNa. Doose V. Savage v. 49 (1021). Dwight Mfg.A. Nichols. 254. Light & Power Co. Chicago City fly. but must Aver the Facts constituting the negligence.. Woods.Conclusion.. 1044. 133 N. L.L. Co. 378 (1918). 95 N. Dooso. 28 Minn. Co. Co. v. Co. An Allegation „that said plaintiff has no right. A Declaration may include several Counts. 565 (1917). 59 SE. Grossetti v. 75 (1881). in such a case. Francovich. 52. v. v. City of Molino. 512 (1907). with a General Allegation of Negligence. 201 Page 106 of 736 .. 28. 575.Proe. 4 Standard Eney. being regarded as a Separate of action.” 499—501. v. 85 N.. C W. and is not entitled to the ownership or possession of the same. Louis v. An Allegation that it was the dcfenda]lt‟s duty to do certain things was an Averme]It of a Conclusion.C. 295 (1901) (money duc). 300 Ill. & E.App. Chicago.Rev. is sufficient. 21 B. 594 (1918). 833. 61 N.Va. 259 (1918). is the stating in support of 24. 327 (1908). Bobbins v. 432. C.. 535. 402. 75 So.. Littleton. SmithMcCormick Coast. Murphy Const. Statements of Fact in Pleading Under the Codes. 61 Neb. Freidman v. 235 (1915). The existence of a duty must be shown by Facts alleged in the Declaration. 420 (1921). P. Public Service By. 40. 196 Ill. A plea of contributory nogligence is not sufficient if it merely states a Conclusion of Law.. Barney. v. v.E. II.. 92 5E.) 130 N. 232. (Jo. it being necessary in pleading Duty to allege Facts from which the Law will raise the Duty.. each Count.4‟ SEVERAL COUNTS IN THE SAME DECLARATION Declaration. S. or Double Pleading. 182 P. Loomis v. 39. Greinke v. Co.W. 1. The term “facts”. Sanboeuf v. 793. 198 Ala. It is necessary only to allege negligence by General Averment that the defendant did the Particular Act damaging the plaintiff.J. 200 1]l. 169 P. MeAndrews V. “The only real question is Whether is it desirable to have a more specific description of the facts upon which the plaintiff relies. and not mere Conclusions of Law. 73 so. “Duplicity. (1917). Jacobson v. Co. 542 (1901) (Fraud). 204 Ala.” Cook. General and Particular Averments. ICilgore cc Birmingham By. 193 111.49 or whether the Special Circumstances from which neg 37. 613 (1873). the existence of the duty may not be so alleged. M. 165 C. Southern Cotton Oil Co. 77 So. in C. A Count is a separate and independent statement of the material facts constituting a Cause of Action. Denhalter Bottling Co. 40 Or. 567. 134. 548 (1915). which must be such that the Conclusion of Negligence follows as Matter of Law. 201 Ala. Grosshans. a declaration or petition charging defendants with an act injurious to plaintiff. 321. 249 (1917). On facts which raise a duty. Ch.L. Clark v. 42 Nev. Bank of Sutton v.” Mitchell. 69. v. 222 Ill. claim or title to the said painting or picture. Mueller. 78 N. 546 (1921)In an action for negligent Injury. 54 Utah 513. 564.E. Allen Clark Co. First Nat. negligence being the Ultimate Pact to be Pleaded.E. and though the Breach of the Duty may be Averred by way of Conclusion. 21 Col.C. (2) Different statements of the same cause ACCORDING to Keigwin. 66 P. “must include many Allegations which are Mixed Conclusions of Law and Statements of Fact. 96 (1915).39 There is a conflict of authority as to whether it is proper to Plead Generally that defendant “negligently” collided with the plaintiff. Chicago. 159. also.. Baltimore & Ohio H. 541 (1920). 176 Cal. 996 (1917). 253 F. Holmes. Jackson.

Nickerson. a Discharge in Bankruptcy. a form of which appears below: 42. Each cause of action and each Defence was required to be placed on one ground. 163 F. and illtreated him. heretofore. 3 Boyce (DeL) 196. 907 (1918). II. wounded.. in the In the KING‟S BENCH year of the reign of King George the Fourth. to set up in Defence more than one of the facts available to defeat the suit would constitute Duplicity. against the peace of the state. 84 A.D. SHIPMAN.D. Double Pleading was therefore prohibited to prevent a party arguing two or more matters from which a plurality of issues might develop. DECLARATION—FORM was or was So. to allege both would be Double Pleading. 420.1915B. St. 728 (18Th).A. and ill-treated him. Page 107 of 736 . at in the county of made an assault upon the said A. And also for that the said C. 95 “Thus. and again beat. HR—S A FORM OF DECLARATION CONTAINING SEVERAL COUNTS: Term. DuplicIty. of dollars. Paul.R. with force and arms. Cases in Common Law Pleading. (unsafe cars and tracks.D. 24 SEVERAL COUNTS IN SAME DECLARATION the same Demand or the same Defence two or more grounds of which either is sufficient for the purpose.Cas. Valerli v.” 42 As the Common Law scheme of remedial ruling was designed to produce a single issue. In either of these cases.. the Statute of Limitations. with force and arms. 473 (1915). Koftier & Peppy ComLaw PIdg. The Rules of Pleadings. on the day and year aforesaid. Want or Failure of Consideration. X. 76 A. 1923). and one who is sued for nonperformance of something to be done upon request might defend by showing that he was never requested and never refused to perform. 553. Breakwater Co. wounded. etc. and then ultimately develop a single clear-cut Issue of Fact. Fusselman v. annotated In .. and beat. too general).B. 937 (1910). so that his life was despaired of. 106 Me. the determination of which would settle the litigation. c. citIng as authority Hunter „cc WilkInson. for a single piece of work the person liable may at one time promise to pay a certain price and on another occasion promise to pay whatever the work is worth. and therefore he brings his suit. at aforesaid. . 206 (3rd ed. 523 (2d ed. 58 Mont. FOR that the said C. Yellowstone Valley Land & Irrigation Co.&nn. 222 (1912). IV. 44 MIss. in the county aforesaid. made another assault upon the said A. we may now consider the problem presented when Several Counts are placed in the same Declaration. Bk. to wit. Handbook of Common Law Pleading. and other wrongs to him then and there did. so that his life was despaired of. Rochester 1884). Keigwln. c.94 Ala. With this preliminary statement in mind. also it Sec.B. Duplicity was regarded as a vice as it conduced to the Multiplication of Issues. To the damage of the said A. 78 So. . heretofore. onthe dayof . 254. 502. Since either promise is sufficient to sustain a demand of payment. which on Traverse or Plea in Confession and Avoidance would leave only a single point in issue at any one stage of the pleading. to wit. So one sued for money may have several Defenses. People‟s Bank v. such a Payment. by Ballantine.

(N. according to the nature of his Defense.A. 92. see Scott Where the plaintiff thus makes several de mands in the same action.. Trth. 4” L‟orter y. if several 4 distinct trespasses were committed..E. Lake Shore & If.~ Cotton Manufactory v. The use of Several Counts when applied to distinct causes of action was entirely consistent with the Rule Against Duplicity.. (DeLSuper. 905 (1894). Parlen & Orcndorff Co. B.App. 78 S. to be presently explained.E. 460. and pursue his remedy for both in the same Action of Debt. Hessiona. Thus.” Page 108 of 736 .Where a party had several distinct causes of action. Gartin „cc Draper Coal & Coke Co. but the ecaverse of this proposition is not invariably truo. 34 App. the same cause of action was stated in different Counts so as to meet any variation in the The use of Several Counts was subject to the requirement that each Count must be •as complete and distinct in itself as if pleaded alone..Y.C.” 44. he should set them out separately in his Declaration in what are called “Separate Counts. independent statement of a cause of action. Declaration. 72 w. v. as if he were setting out so many separate and distinct causes of action. 27 L. if the decision. Philadelphia B. there being no objection to having several issues where the demands were several. 4 Where Several Counts were thus used. in which the Court introduced the foliowlag test: “The Rule is invariable. But. And Several Acts of Negligence causing the Injury may be alleged in One Count of a Declaration as One Cause of Action. Co. & W. and the production of several issues. ‟ 43. Lobdell.That dIfferent Acts of Negligence may be charged In different Counts as the Cause of Injury. as the object of that rule was to prevent several issues in respect to the same demand only. subject to several rules.) 482 (1810).s... 92 N. Drennan. The sufficiency of one of Several Counts was 5 determined on its own Averments. the defendant might. 405. as to joining such demands only as were of similar character or quality. 862 (1888). these might all form the subject of one Action in Trespass. a plaintiff is permitted to state the same cause of action in different ways in different Counts.N. 13 Iil. and in the two latter cases the action may cause a corresponding severance in the subsequent pleading. In an effort to avoid such an occurrence.” Each Count is a separate. 546. 37 N. however. 1 evidence produced at the Trial and the Allegations contained in the various Counts. By. v. 792 (1909). So.R. or he might plead a Separate Plea to each Count. 13 Johns. was in the plaintiff‟s favor. Smith v. or he might follow the course of Demurring to one Count and pleading to another. as to any one or more Counts. Moreover. whether one or more issues be produced. 150 Ill. Demur to the entire Declaration. even though he failed as to the remainder. that Causes of Action. at Common Law. whether on Law or Fact. he was allowed to pursue them cumulatively in the same action. 245 III. without regard to the other Counts.D. he might join a claim of Debt on a Bond with a claim 43 of Debt on a Simple Contract.‟ One Count. S. 155 A.E. might make reference to another for relevant matter without the necessity of repeating it. Co. This was for the purpose of preventing the defeat of a just cause of action through an incidental Variance between the evidence which might develop at the 673 (1913).) 418 (1931). may be Joined. Staples. he was entitled to Judgment pro tanto. Flynn v. or plead a single Plea to the entire Cli. 318 (1910). which admit of the Same Plea and the Same Judgment.

1876).R. 29 Am. 51 Mich.Y. L.the same Plea may be pleaded. 582. 13 Johns(N. Blmne.Dcc. JOINDER OF DIFFERENT CAUSES OF ACTION 25.L.L. Sunder]and. II. Joinder of Actions—with Special Reference to Montana and California Practice. and the Time Limited for their coinmencement. on the subject Acts and Rules of Court. 48. Toelle. W. 26 Mich. 85 U. or Debt on a Specialty with the same action on a Judgment or Simple Contract. 37 Coi. Free Joinder of Parties. Spurek.flev. Claims and Counterclaims.1LD. 843 (1041). 502.L.L. 78 (1910). and the Judgment in Detinue was also in a different form. THE joinder Of distinct causes of action was permissible under the conditions stated 46. Lugar. 88 (1908). 229 (16th Am. or to which 47 of Joinder and Mis‟ joinder of Causes of Action at Common Law. 236 Ill. v. Annotations: Joinder or Representation of Several Claimants in Action Against Carrier or Utility to Recover Overcharge. Sec. Parties and Joinder of Actions Under the Illinois Civil Practice Act. 571 (1920). 43 Ill. Fuller. Civil Procedure—Code Pleading—Joinder of Actions on Two Several Contracts of Insurance.Rev. under Modern Codes. 137 at 145 (1950). 330 (1836). by Perkins. etc.Rev. 25 Rev. where the Pleas were different. 250 (1943): Dutcher.. L. According to Professor Edson 11. Joinder In Defamation Action. without good reason.L. Gavitt. flume. 35 A. 3 (1043). also. 11 Coan. The Illinois Practice Act. See.Rev.L. D. Kelly Coal Co. L. 1 (1927). The Joinder of Causes of Ac‟ tion for Injuries Sustained by Those Standing in Familial Relationship. the plaintiff might join as many Counts as he had causes of action of the Claims and Parties Under Modern Pleading Rules. Of Forms of Action.R. Brady v. Va. Ingraham. of Pa. Practice DECLARATION—FORM See: S6 Articles: Sunderland. above. 1 £LJt. Chicago. Notes: Recent Treads in Johider of Parties. Joinder of JOINDER OF CAUSES OF ACTION Tidd. Where the plaintiff has several and distinct causes of action of the same nature and character. Causes of Action Blended. Union Cotton ?. Pleading and Parties to Actions with Precedents. 131 111. 41 DickInson L. regarded as a Page 109 of 736 . In general. Joinder of Actions. 1828).E.49 In actions in form cx contractu. 1 Chitty.L.llev.2d 160 (1948). 797 (1947).Iannfactory v. A Rational Theory for Joinder of Causes.flev. Springfield.Rev. London.Rev. also. c.48 as instances existed permitting the uniting of Debt and Detinue. 27 III. 22 Minn. 478 (1861). 459 (1930). was the best criterion. By.2d 1377 (1954).Rev. 12 (0th ed.Rev. Practice of the Court of ICing‟s Bench. 2 P. 462 (1937). Misjoinder of Causes of Action was at Common Law. he may pursue them all in the same Declaration. 1068 (1051). 350 (1890).. 18 Calif.Rev. Wheaton.E. 36 Minn. 580 (1052). flume. Causes and Counterclaims.L.2d 813 (1952). 18 Micb. 43 (1938). See. and on which the same Judgment may be rendered. though it seems that the first.Rev. Joinder of Cause of Action for Pain and Suffering of Decedent with Cause of Action for Wrongful Death. or nature of the cause of action. of Denial and Plea of Truth of Statement. e. Olson v.) 462 (1816). 659. 47. 23 N. 29 Iowa I. Lobdell. Civil Procedure—Joinder of Causes of Action in Michigan. 45 MIcb. Whipple v. 21 A. 86 N.L. Required Joinder of Claims.L. 52 W. Wright. Common Law Pleading Modified Versus the Federal Rules. 48 (1938). Of Actions. ed. Joinder of Parties and ActIons. 41 (1948).. I.

In Debt on a Judgment. Bishop v. W. 472(1852). 10 Johns. 574 (1920). 54 (Dublin. 63 111. Case and Trover.) 423.) 402 (1816) . 54. Kanawha & 1.53 But when the causes of action were of a different nature. 1 Blackf. and. See article. Dumbolton.84 (1851). note (1853).52 and several causes of action in Case might be joined with Trover.) 236 (1835). 1 T. Johnson. 28 N. (N. 19 Pick. Ry. 21 Ala. The Judgment in Detinue was in the alternatite. it was not possible to join Trespass or Case with Detinue or Replevin. see Miles v.Y. Selby v. 68. New York: Baker v. Flowers.Y. Farnham v.. or Covenant or Debt. Massachusetts: Parker -v.” 00 Page 110 of 736 . 2 Day (Conn. 49.L. 131 5?. 571. Weseott. 350 (1800).Y. 10 Ga. Sunderland said: “Thus a Count on behalf of two plaintiffs jointly could not be joined with a Count on behalf of one of them severally. 4 Ycates (Pa. Lobdell.Va. Oldueld. hay. 3 Blackf.) 240 (1813). 4 Oilman (In.Dec. for the goods or their value. 5‟ .) 418. Ingraham. And ns to Joinder of Slander and Malicious Prosecution. 290 (1918): Wells V. 55. several distinct trespasses. or Debt with DetinueP° So.. both to the person and property.59 In referring to this very point. same nature in Assumpsit. Proprietors of First Congregational Meetinghouse in Lowell. 14 Ill. Misjoinder of Causes of Action In Illinois. for the same reason.) 178 (1820). Co. Security Trust Co. (Mass. Counts could not be joined each of which set up a several right in a different plaintiff against the same defendant. 308 (1872). note a (London. v. 1091 (1786).1.l 5sf faction. Buller. 412 (1807).E. and Counts alleging the joint liability of two or more defendants could not be joined with Counts alleging the several liability of any or all of them. such as Debt and Detinue. 6 Btaekf. (Mass. Crooker V. (N. Gray v. See Note: Pleading and Practice—Inconsistent Causes of Action in Same Complaint—Contract and Tort. Nisi Prius. and. 51 Brown But a Count in Trover could not be joined with one in Trespass. Misjoinder might result from the diversity of capacities in which the parties sued or were sued. Co. 581 (1920). (lad. 818. New York: Church v. 800 (1920). 11 Johns. 712.R. Alabama: Copeland v. 20 Col. Co.L.) 319 (1847). It was Improper to unite in the Same Declaration a Cause of Action sounding in Contract with one sounding in Tort. & W. Dee. Smith v. Smith v. Willard. 4 to constitute an exception. (N. 134.Bcv. they could not be joined!” Actions cx contractu could not be joined with those in form cx delicto. Powell.58 as they DECLARATION—FORM Were actions of different natures. might be joined in the same Declaration in Trespass. llutchinson. Roop. 82 W.itcv. Illinois: Chicago. 2 Am. and tile same Judgment could not be rendered. 337 ¶1916). v. IV. Dixon.L. 2 Am.” or Trespass with Case. Stipp. fly. Neither can Causes of action due in different rights be joined. 90 St. Joinder of Actions. IS W. 1566). Counts setting up different causes of action in favor of the same plaintiff against different defendants could not be joined.) 77 (1820) III. Sn (1833).5° and Assumpsit cannot be joined with Account. 1791). The general issue In Debt on a Specialty was vtO.3‟ Union Cotton Manufactory V.Va. Parker. could be joined.) 216 (1804).H. 97 S. (md. (Mass. Shafer v. v. 277. 110 Eug-Rcp. Moore. as above observed. 3. Tillotson v. nit debet or . 109 (1807). Crenshaw v. Jacksonville Depot Building Co. Baker. 2 Caines (N.55 though the case of Debt and Detinue seems 30.Rev.) 167 (1833). Indiana: Bodley v. Connecticut: Stoycl v. 414 (1843).Y..tnl tiel record. 4 Barn.i 158 (1814). (Ind. 98 97 Ch.Bep. Rallock v. S Pick.H. Natura Brevinm.. 23 N.most serious error. 14 N. See article by Howe.E. 413. 18 Mich. 17 Pick. Goodwin. 09 Eng. c. B. Mumford. 13 Johns. Professor Edam R. Toledo. 659. 762.) 517 (1837). & Adol. But some actions of different forms. Fitzherbert. W. and several takings at different days and places in Replevin.) 479 (1814): Cf. in the different Actions of Debt. D.

and a certain sum every month after. If. and accordingly inserts the second form of statement. 89. but one recovery of the sum claimed as due. The first case may be illustrated by an Action of Debt on a Penal Bond whereby the defendant engaged to pay a certain penalty in the event of nonpayment of a sum of money on the 11th of June.°‟ Resort may be had to Several Counts in respect of the same Cause of Action. Of Actions. VII. in the shape of a second Count. or inability to properly support the claim by competent proof. Laguerenne. It has been shown above that Debt and Detinue were closely related in origin. Pell v. see Clark. Stalworth. Kennedy v. ~ 67—77. 19 Ala. 424 (1868). 58 Ill. and has long since passed. Paul 1947). Let it be Page 111 of 736 DIFFERENT VERSIONS . and that Detinue first lay to enforce the obligation of a bailee to deliver. either where the State of Facts to which each Count refers is really different. 16 Johns. says Stephen. in the same Declaration. Handbook of the Law of Code Pleadings. Talbot. 571. 782 (1897). C. upon the same principle. 760 (1851). in drawing the Declaration in Any Action. 82 Va. Weber. (N. Mayer v. though there can be .) 75 (1848).) 546 (1838). Cooper v. 296 (1871). Sleeper v. he wishes to vary still further the Method of Allegation. Not choosing to rely on either view of the case exclusively. I. 26 99 in respect of the same Cause of Action. 19 III. 46 N. or incapable of proof in Point of Fact.. 105 (1894). Joinder and Splitting of Causes of Action. World‟s Fair BanQuet Hall Co. Guinnip v. Church. though he fail as to the rest. c. is a relaxation of very ancient date. 263 (1850). Carter. and upon one of which a Verdict may be obtained. in the same manner as if he were proceeding for a separate Cause of Action. 166 UI. in practice. a great Variety of Counts often occurs Sec. Lovett. Bucker. 58 IlLApp. and another sum on the 10th of July. Dalson V. See Tidd.E. feels doubtful whether. and the Time Limited for Their Commencement. See also. 5 Oilman (Ill. 50 Ill. and thus. Practice of the Court of King‟s Bench. Albin v. Furniss. The pleader is therefore permitted to include in his Declaration several statements of the same Cause of Action. the Law not having set any limits to the discretion of the Pleader. Patrick v. without flu.. till a certain sum was satisfied. Sheppard v. either from insufficiency in Law. St. 18 MlehLRev. as so stated. DIFFERENT VERSIONS OF THE SAME CAUSE OF ACTION 26. 428 (1858). 205. Bissell. or where the same State of Facts is differently represented. 434-408 (2d ed. Canton National Bldg. 582 (1920). 60. into allowable and regular practice.50. he may find it necessary to add many other succeeding Counts besides the second. On the Joinder of Causes of Action under Modern Codes. it may not be insufficient in Point of Law. 34 Md. he takes the course of adopting both. Bradberry. Crulkshank v.) 146 (1819). 501 (1886). Ass‟n V. This Rule. 82 (1869). See Article by Sunderland. after having set forth his case in one view. allowed where the nature of the facts upon which the plaintiff‟s claim rests rendered it doubtful whether a single statement might not fall to justify a recovery. Safford v. (1871). Lawrence. plicity. London 1828). He may thus insert as many Counts or Statements as he pleases. Brown. 11 note b (9th ed. THE Rule here stated is the result of an ancient relaxation of the Rule against Duplicity. 18 Ala. and at the same time perceives another Mode of Statement by which the apprehended difficulty may probably be avoided. by continual sufferance. Miller. if fairly and rationally exercised. 46 III. Facts constituting but a single cause of action may be differently stated in Separate Counts. 59 III. (N.Y. McOianity V.Y. „McMullin v. fl. each of which differently represents the same State of Facts. 19 Wend. 57. Joinder of Actions. It takes place when the pleader. 669 58. 5 Oilman (IlL) 101 (1848). in This respect.

describing it as “a certain other bond. but also include Counts for almost any State of Facts upon which a debt may be founded. 1892). under these circumstances. The first of these would set forth the penal bond. The Money Counts are those generally for money lent to the defendant. also. Precedents of PleadIng. and the defendant should take issue upon it. 76 (1833) (The Judge in the Trial Court compared different counts to safety though it may be certain that there was at valves). See. The More General Count is adopted. the circumstances may be conceived to be such as to raise a doubt whether the transaction ought to be described as one of goods sold and delivered. if good in Point of Law. but. 1 Dowl. Precedents in Pleading. for interest due. ered one of the chief abuses in the System of pleading. if he states them both in the same Count. In this instance. a different default in payment. Of the Principal Rules of Pleading. Washington. in order to secure a Verdict. But it more frequently happens that it is the same State of Facts differently represented which forms the subject of different Counts. because. (2) to meet doubt as to the Law. though he fail as to all the rest.D. The case. Jackson v. The effect of this would be that the plaintiff. 437 (1912). The best illustration of the practice of thus restating a Cause of Action in the same Declaration is found in the use of the Common Counts in General Assumpsit. though in support of the same demand. and an action is brought against him for the price. upon one of them. the Several Counts are each founded on a different State of Facts. bY Tyler.” or those for money transactions. D. Again. might rely on either default. the Declaration will be double. 83 A. 2 DoWl. And first of all. the second would again set forth the same bond. Report of the Common Law Commissioners. H. Baker. Keigwin. seekonk Lace Ce. A Count not varying substantially from a preceding Count Is objectionable for redundancy. In such a ease the More Special Count is used. 100 DECLARATION—FORM Ch. as he might then find convenient. c. The others may be. use and occupation. lest the omission of this matter should render the other Insufficient in Point of Law. 100 (1904). or of work and labor done. 34 Ri. & Ryland 508 (1822). and takes Issue in Fact on the former. in this case. etc. 304. C. A Treatise on the Principles of Pleading in Civil Actions. If the defendant Demurs to the latter Count as insufficient. for work and labor. which appear in the chapter on the Action of Indebitatus Assumpsit. and if. he might defeat the action by proving payment on the day alleged. 4 or paid out for him by the latter. They eii~brace not only what are called the “Money Counts. Sowter v. Thus. though he would have been unable to prove the other payment. 24 App. preceding the Common Counts.C.” etc. St Stephen. however. and would allege a default on the 10th of July. goods sold and delivered. . On the “Licensed Duplicity of Plural counts” to meet (1) the uncertainties of evidence in support of the plaintiff‟s case. the plaintiff has the chance of proving the matter alleged. . the Cause of Action will resolve itself into one of these general pecuniary forms of demand. and.” The principal reason is the Strictness of the Rules as to Varlanee. that is. where a man has ordered goods of another. and also the chance of succeeding Page 112 of 736 . and for an account “stated” or agreed upon. Either failure entitles him to the penal sum for which he brings the action. Bell. for there may be a doubt whether one or other of the payments were not made. when the Special Counts are found incapable of proof at the Trial. there would be two Counts. (3) to obtain for the plaintiff the greatest possible latitude of proof. among other things. Case xvii. 424. 426ff. alleging a default of payment on the 11th of June. the plaintiff should set forth one of the defaults. had and received by him for the pla‟mtiff. 1910). there may be a Special Count declaring on an express contract. “The Multiplication of Counts has long been consid. ed. setting forth the claim both ways. Note in Keigwin.. 258 (3d Am. This is done because it often happens that. and thus the plaintiff may obtain a Verdict on one of these Money Counts. To allow the plaintiff or defendant to state his case in ten or fifteen different ways is a custom the reasonableness of which is not readily perceived. Newby v. at the Trial. Mason. the same State of Facts may be varied by omitting in one Count some matter stated in another. at all events.supposed that the plaintiff complains of a failure in payment both on the 11th of June and 10th of July. Ward v. § 3. least one default. To meet this difficulty. it will relieve the plaintiff from the necessity of proving such omitted matter in Point of Fact. 425—428 (Washington. may be such as to make it convenient to rely on both defaults. the pleader might resort to two Counts..

132 (1856). (nun. though the Original Writ is no longer in use.) 148 (1838). 54 A. Fehlberg. Missanl. Sec.Rep. D. Munger. is not to be directly v1olated. New Jersey: Coyle v. 97 (1844).E. I lbs.1.67 (5) As to time. Donnelly v. The Declaration must correspelul with the Writ or Process. Fitch V. 87 Eng. and not from the Common Law. Rogers v. 8 Hrnnpli. IT was a rule of great antiquity that the Declaration must Conform to the Original Writ. & Pul. and. IX. Heise. he may declare in his own right. 0. both as to its form and the extent of the demand. 383. 27 IS. If the action is brought by the plaintiff in a representative capacity. c. 101 Rogers v. I Cow. 11 NC. which. 24 11.L. though some writers claim that the principles applicable are derived entirely from the Practice Act itself. they must always purport to be founded on distinct Causes of Action. and for the same reason. I Ros.ileP~ 966 (1799). 91 CONFORMANCE TO PROCESS 27. § 3. Hart v. Jenkins. and this is effected by the insertion of such words as “other. or the deviation will constitute a Variance. 383 (1908). in its effect. by The use of Several Counts. 67. 7 Mod.63 though when the Process describes the defendant by a wrong name. 93.0. 66 (4) As to the Cause of Action. 102 (1825). A Treatise on the Principles of Pleading in Civil Actions. the agreement between the Summons and Complaint in most of the particulars hereafter mentioned is essential.68 which is generally considered as the time of the Commencement of the Action. though. Illinois: Weld v. Of the Principal Rules of Pleading. & Pu1. Lashlie v. The formal statement of the Cause of Action must correspond with all the material statements in the Process by which the action is commenced. by Tyler. 19 Wend. 100 (1697). 126 Engitep. Foote. I Cow. 15 N. 11 Ill. 573 (1850). 1 Salk. and not to refer to the same matter. cheves (8. p. (N.~ St. and n. 148. though evaded. Page 113 of 736 . 1802).” (3) As to the character in which the parties sue or are sued. the demand being still the same. (la. the Rule is to be regarded as still in force. Washington. Hubbard. etc. 383. whether the Stephen. 20 NJ.Y. Missant. it being essential that no material fact be stated in the Declaration as happening after the date or teste of the Process. as to The Declaration. 213. Engitep. It is to be observed that. 126 Eng.) 659 (1848). and Frame the Declaration—an intermediate step—in the names of several. and he appears in his right one. 966 (1799). (N. Willard v. Under the Rule.) 37 (1823). 1156 (1702). Hltcheocli v.69 06. (NY) 37 (1823). if he styles himself executor simply. for it would not be allowable to Commence an Action in the name of one. 201 (3d Am. Wily. 574. he may be declared against by the latter.” (2) As to the number of parties. Longfleld. as to the Process now generally in use for commencing an Action in the place of the Original Writ. Graves. North Carolina: Stamps v.) 185 (1840).Y. in such of the United States as follow the Methods of Pleading at Common Law. coyle. subjects of Several Counts be really distinct or identical. in the manner here described.” “the further sum”. ed. Sm. Troles. A convincing proof of its force at the present day is that even in Code Pleading. the plaintiff cannot declare in his own right. it may be taken as still requisite that the Declaration must correspond with the Process In the following respects: (1) As to the Names of Parties to the Action. Willard V. Jenkins. nhoae Island: Slater v. This is evidently rendered necessary by The Rule against Duplicity. West v. CONFORMANCE TO PROCESS as an executor. without showing that he sues as such.on the Demurrer.

(S. contra. Manner of Pleading Conveyance. which place is called the „Venue” of the action. Title in the Party or in One Whose Authority He Pleads. Consequences of Mistake or Omission. 426 (1885). 49.) 878 (1830). according as the same are respectively: Page 114 of 736 . 19. 34. Local and Transitory Actions. 48. Faxon. 51. 35. Prof ert of Deeds.Cas. Graves. Alleging Derivation of Title—Particular Estates. Semis v. South Carolina: Bradley v. 28. New York: Carpenter v. Butterfield. Parties to the Action. Sec. 30. 6 T. Kentucky: Thompson v. Heitshu. Burdick v. Alabama: Oox v. Green. 54. 82. 11 N.B.) 51 (1845). 8 Metcalf (Mass. Description of Property. 52. Showing Title.) 559 Law. 41. 36. 46. I Breese (III. some certain pJace must be alleged for every affirmative Traversable Fact. 42. Proof of Title as Alleged. Shed. 3 Brev. 48. TiTLE AND OTHER COMMON MATTERS 29.06. Estoppel of Adverse Party. Time.Mon. And it is only prima facie evidence of the fact am! not conclusive. In all Pleadings. 263 (1808). Laying the Venue. When Time Must be Truly Stated. 53. 50. (Pa.Y. 3 Ala. 47. 4 Mass. Names of Persons. C. Cooper. 88. or at the option of the pleader. 44. LAYING TRE VENUE 28. though the strictness formerly prevailing has been considerably relaxed. The Written Conveyance and the Statute of Frauds. 18 Johns. CHAPTER 5 THE DECLARATION—GENERAL RULES AS TO ALLEGING PLACE. „ 14. Jenkins. (N. 256 (1841). illinois: The consequences of a Variance between the Declaration and Process were generally serious at Common Prince „ v. TIME. Vermont: Day V. 87. Bell. Writings Pleaded According to Legal Effect.) 42 (1812). Pennsylvania~ caidwell v. (Ky.C. Where a Party Alleges Title in His Adversary. When Time Need Not be Truly Stated. Stamps v. The fault may be generally taken advantage of by Plea in Abatement.Y. 39. Title by Inheritance. (N. Alleging Derivation of Title—Estates in Fee Simple. 45. Showing as to Authority. 31. Local Facts—Venue in Pleadings Subequent to the Declaration. 7 Vt. Lamb. though a Variance a~ to the Cause of Action is ground for setting aside the Proceedings as irregular. Time of Continuing Acts. Title by Alienation or Conveyance. Massachusetts: Bunker v. (1828). 40. Damages—General and Special.) 145 (1802). 38. 3 Jobns.) 150 (1844). 102 (1825). The Venue in all actions is to be laid truly. Lamb. 9 Watts & S.) 14 (1820). What is a Sufficient Allegation of Liability. And see.7~ except where modified rules have been adopted in different states.

51 NIL. § 6. or the recovery of damages for its place.J. but the specific place in the county in which the fact occurred. reg. 2. 2 FBI.4 the Venue in the margin having been long found sufficient for all practical purposes. 3. Walker. and may be either for: (I) The recovery of land. in a Transitory Action. ~ Stephen. & W. Reg. 145. L. or with a wrong one. though it may not be alleged at all in the Body of the Declaration. 6.. to lay every Traversable Fact affirmatively alleged with a Venue.” A Venue should be laid in the Declaration. Duyckinek v. but failure to lay any Venue in a Transitory Action is regarded merely as a formal defect. Cambridge. or in any Subsequent Pleading. without a Venue. It. According to Stephen. 36 At!. A Local Action is one where the transaction upon which it is founded could only occur in a particular (II) The establishment or maintenance of a right arising out of land.WITH each stage in the development of (II) Transitory (I) Local.° it was provided that “The name of a county shall in all cases be stated in the margin of a Declaration. During the first or earliest stage.~ provided that a Judgment after Verdict should not be stayed or reversed on account of the Venue. 16. 11 Statutes at Large 156 (1705). flderton v.Rep.2 the Jury was summoned from the county in which the action was triable. is bad in form if Specially Demurred to for this cause. c. arid also in the Declaration. Meltean Twp. but that objection cannot be taken in any other way. xv. The rule also applied to actions Commenced by Bill instead of by Original Writ. It is sufficient if the name of the county appear in the margin.3 LOCAL AND TRANSITORY ACTIONS9 29.Term. the manner of laying Venue underwent a change. Replication and Subsequent Pleadings were required to lay Venue to 102 Sec. The statute of 16 & 17 Car. S. 4. Provided. the general rule was that each affirmative Traversable Allegation in the Original Writ. Clinton Mut. In the second stage of the Jury‟s growth. also. Statute 4 Anne. 56. Ilderton. Of the Principal Rules of Pleading. the practice of laying a Venue in the Body of the Pleadings became “an unmeaning form. whether or not the fact in issue occurred there. 29 each affirmative Traversable Allegation. And in both eases the Plea. 476 (1793). if the cause were tried by a Jury of the county where the action was laid.Gen. 23 N. which can only be taken advantage of by 1. was to be laid with a Venue or place comprising. C.. A Treatise on the Principles of Pleading. 16 Ati.” ~ And by the Hilary Rules of 1834. that in cases where local description is now required. Read v. Platz v. Co. 12 (1888). 4 Wm.llhl. 126 Eng. Brick Mfg. Delaware. not only the county. In Massachusetts it was held that a Declaration in a Transitory Action.. Mehrlaof Bros. 139 (1897).1 This laying of the Venue in connection with each Traversable Allegation in the Body of the Declaration or other pleading is designated as the Fact Venue. v. See. or Page 115 of 736 . Chapter 8. 259 (Williston edition. or the Jury. enacted in 1664. 178 Pa. and shall be taken to be the Venue intended by the plaintiff. Co. as formerly. § IV. and no Venue shall be stated in the Body of the Declaration. 601. 279 (1852). and after the statute of 1705.7 In most states it is not considered necessary. 1895). 52 IlL 333 (1869). such local description shall be given. Co. which was required to Conform to the Writ in this as in other particulars. 103 Special Demurrer. F. Ins.L. II.

66 U. of Nantucket Bank. 16 AtI.) 45 (1827). Blanchard.R. Penn. (N. 94 (1809). to the same effect. 296. 27 W. Cas. 8.‟° Causes of action which necessarily involve a certain locality. 393 (1823). Thorwarth V. adopted as 536 of the New York Real Property Law. 4 Ark. of Pa.S. etc. It. Brown. 31 (1889). 12 (1888). 205 N. 13 AU.L. Blackstoae Nat. for example.‟2 or trespass. AnnotatIons: 26 L. Section 082a of the New York Code of Civil Procedure. 752. TIME. lfl N. Lane. Transitory Actions are those founded on transactions which might have taken place anywhere. B.No.L. 18 AU. Chase. 111 N. 80 Me.Va.L.A.A. therefore. Chase! 4 Ark. is one which exerts an influence upon the laying of the Venue. 837 (1916).. and may be brought in any jurisdiction in which the plaintiff succeeds in serving the defendant personally. see. 217 N. Jefferson.L.Q. THE law distinguishes between transactions which might occur at any place and 7. Wise.Rev. 203.S. 5 those which must occur at some certain place. 51 N. Nature of Actions—Local and Transitory. Mehrhof Bros. 013 10. (N. 165. which are purely local subjects. Fed. as THE DECLARATION—PLACE. and must be tried in the place where property involved is located. 301 (1920—21).Y. 683 (1888).C. Cf. Decisions: Livingston v.) 267 (1913).S. and hence may be brought in any place where jurisdiction of the defendant may be obtained. 301 (1918). & W. 39 L.Ed. 6 (1912).L. Bank v.L. 837 (1916).Eev. 15 tCt. Nelson. And.A. The Venue of Actions of Trespass to Land. Local Actions. 431. 235. construed 104 LOCAL AND TRANSITORY ACTIONS Ch. Starke. such. 86 Vt. 456 (1922).E. 18 Il1.11 nuisance. Ellenwood v. Wheaton... 56. 85 Atl.J. 771. Co. v. Colgate. as an Action of Ejectment. 9. Ackerson v.) 933 (1910). 105.S. In general. 2 Blackf. Brick Mfg. Co. 411 (1904). Delaware. (N. B. 158 U. in which the leading cases on this point are discussed. An in Jacobus v. 11. 376.Y. (1895). TITLE an Action of Ejectment.R. Jacobus v. Slate „cc Post. (N.E. 235..A.S. Marietta Chair Co. and Actions which are Transitory. 44 L. 43. on Local and Transitory Actions. 95 N.injury.8411 (1811). B. V. Local and Transitory Actions in PH~ Vate International Law.) 81 (1812). Oilman. The distinction between Actions which are Local and hence must be brought in the jurisdiction where the property concerned is located. 210 (1841).13 are examples of Local Actions. 70 N. Briggs v. Colgate. Benton v.Y. 210. 71 Md. 309 (1865). 44 L. Statutes: 28 U. Brisbane Page 116 of 736 . 1 Broek. 1392 (1068). Causes of action which do not necessarily arise in any specific place are Transitory.Y. 1 Mo. Hill v. The Erie By. Co. Presideat. see: Articles: Kuhn. An Action for Injury to real estate as by negligence. Co. 31 KJ. Pullea V. 5 Mass.J. are Local.) 279 (1912).R. 9 Johns. 217 N. L. Puflen v. 57 AtI. embrace all those brought for the recovery of the seisin or possession of lands and tenements. And see County Com‟rs of Hartford County V. (md. Capp v.

Hageman. If it be misstated. 65 Minn. 1 Taunt. Webb. is Local.L. Barnes v. 853 (1890). 127 Eng. 383. 03 Eng. Comment: Itight to Sue in a Foreign Jurisdiction for an Injury to Real Estate. as no Court has Jurisdiction over 14..E.Bcp. 370 (1869).Y. St. P. 117 (1843).Ljtev. v. 44 L. Mostyn v. Warren v. 468 (1924). Jefferies v. 100 Eng. also. 98 Eng. 185. Ann. 244 (1915).Y. 503. 752. Finegan. Arizona Commercial Mining Co.S. Doulson v. ~.‟9 However this may be. Webb. 1143 (1792). Webb.Rep. C. 236 Mass. Pennsylvania B. 161. 756 (1725).) 381 (1801). however. Co. 63 (1849). 1143 (1792). Van Ommen V. In an Action of Debt on a Judgment of a Court of Record.) 425 (1841).” 16. adopted as Section 536 of the New York Real Property Law. Nuisance. 4 TB.Bep.Cas. Fed. 4 LOCAL AND TRANSITORY ACTIONS local matters arising within a foreign sovereignty.) 639 (1846).. Cowp.Rcp. 63 (1920). by way of dictum. Cowp. 8411 (1811). And see. Warren v.Ann.Cas. 281 (Philadelphia 1819). Marietta Chair Co. 31 Mo. Mostyn v. 913 (1895). Clark.. or for Breach of Contracts or of Cove‟ nants relating thereto. on Pleading. 127 Eng. Graves v. 1 Str. Fabrigns.) 503 (1817). 77 Tex. 503.. Co. 11 In the famous case of Mostyn v.Ed. where the Action is admittedly Local. 1 Taunt. I Brock. no action will lie in any one sovereign state for the recovery of 2 lands or tenements situated in another. Jefferson. The action must be tried in the county In which the parties or some one thereof re~ sides. 379.R. 379. Duncombe. etc. 15 Mass. MclCeon.Rep.) 241. Little v. 1 SW. Trespass may be maintained for injury to land located in a foreign jurisdiction. Brisbane v. v. 235. ~7 (1898). 431. (Teun. 1021 (1774). 445 (1888).A.w. T. S. Portland Iron Works. whenever such an action could be maintained in relation to personal property without the state. And. Ellenwood V. 2 Humph. 2 Denio (N.) 279. 128 N. there will be a fatal Variance between the Pleading and the Proof. but they were subsequently repudiated in Shelling v. place being here material as a matter of properly describing the subject matter of the action. 837 (1916). Lockc. in New York. an express statutory enactment „6 authorized 6 Actions for Trespass to realty lying outside the State. I Chitty. 126. 4 (1920). & P. 08 N. 1 Ark.Y. Matthews. 846 (1896). Damron.Rep. IV.Cas.1913E.Y. 880 (1808).Rep. Warren v. sce Mason v.No. In some states. provides: “An action may ho maintained in the Courts of this State to recover damages for injuries to real estate situate without the state. McKenna v. unless in these cases there was some contract between the parties on which the action is grounded. the place where the land is situated must be truly stated.. 105. Bond. 771. Cf. 205 N. should be declared Transitory and not Local. In any county. 63 Page 117 of 736 .12.Eep. Roach v. (N.Ed. as for Trespaso to Realty. Barclay. 203. Fabrigas.17 Lord Mansfield. 1O. Of the Declaration. By. 508 (1862). fly.S. or If no party resides within the state.R. Brereton v. 15. c. including such actions as Trespass to the land. 176. v. Livingston action for obstructing a highway. Matthews. 48. 102 Mass. 126 Atl. (Pa. 593 (1916). 152 rae. 158 U. 181. Fabrlgas. 503. took the view that Actions in Personam. 100 N.J.14 Thus. ° 20. Co. S Serg. Trespass or Trespass on the Case for injuries to real property. 1143 (1792). as to the difference between Local and Transitory Actions. v. Colby. Putnam v. 108 N. Matthews. and within this rule: Ejeetment. & B. Smith v.. (N.E. 13 SW.R. 29 Ont. Cf. Kenyon. Farmer‟5 and Doulson v. & 0.Ct. Whit~ey. the Venue must be laid in the county whore the Record is located. By. 5 Minn.‟ L. Cheeseman. 379. Iron Cap Copper Co. 100 Eng. 15 S.Rep. 53.Rep. The same view had been expressed by the same Judge in two earlier cases at Nisi Prius. Section 982a of the New York Code of Civil Procedure. 60 Tex. 4 La. 217 N. 284 (1818). I How. Holmes v. 111 N. 67 N. and this Statute was subsequently construed in Jacobus v.Rep. 103 Eng. Waste. 991 (1800). 1021 (1774). The reason of the rule as to all Local Actions is that. 4 T. (U. 11 East 226. M. Louis A. 112 (1886). 880 (1808). 2 Johns. 39 L. Thomson v. Fisk. The following Actions are Local. Montesano Lumber Co. 17.E. 224.Y. Colgate. 100 Eng. Sumner v. 127 Eng. 78 Ore. Co. I Taunt. 646. 880 (1808). II. Doulson v.S. Hcn~vood v. 98 Eng. Warner. Dodge v. Canadian Pac.

In actions upon lenses for nonpayment of rent. Crook v. TIME. 235. British South Africa Co. but the Action has been made Transitory by Statute In some states. was ordinarily required to follow the p. since the facts from which they arise may be supposed to have happened anywhere.Y. c. Gould.Rev. New York Corporation v. Nelson. Thomas. Watts v. See White v. (Va.Rev.Rev. 3 Street. 1000).Rev. unless authorized by Statute. Hill V. c. But a Variance in respect to a Transitory Fact.(1838). all actions which are called “personal. 103 Lug. 5 THE DECLARATION—PLACE. v. TITLE ‘I it may be laid at the option of the pleader. 602. Brady. Note: Right to Sue in a Foreign Jurisdiction for Injury to Real Estate. 1876). I. Portland & R.C. Jefferies v. Smith v. 376. In practice.Dee. unless it involved a matter of description. Lawrence.. or by the grantee of the reversion against the assignee of the lessee. Walker. to wit. A Treatise on the Principles of Pleading. See Hale v. etc.S. it was always the better part of wisdom to Jay the Venue truly. 36 LEd. 05 Eng. he might support his Allegation by Proof that the assault took place at any other place. Butler. Thomas. Companbia de Mocambiqne. C Munf. 220 (1833). 21 N. 11 East 220. 510 (1884). 1000). Sanborn.H. and. 6 N.R. by Will. Thus. 2 Johns. 224. but this is not the general rule under the Codes. it is Local. 106 Sec. H. 456 (1921). Note: Right to Sue in a Foreign Jurisdiction for an Injury to Real Estate. 57 Atl. 516 (1922). 4-4 L. not Transitory.) 279 (1912). in others this is not necessary. Cowp. 1 Daly (N.S. Clarkson v.) SOS (1865). 22. have no natural locality.) 323 (1837). on the question whether the action is Local or Transitory. 730 (1818). 47 Am. 146 U.22 are Transitory in their nature. 13 Am. Gifford. 333 (1809). on the land of the tenant. 324. B. if A alleged that B assaulted him at a certain place. 6 Minn. 13 8Cr. 2‟ or Contract. Dawson.Rep. (N. Rep. that is. not associated with any partkcular locality. And the defendant. (N. L. Of the Declaration 279~ (Springfield. also. As in Account. in his Plea. 633. If based upon privity of estate. Bull.Dee. In other words the Venue does not have to be stated truly. Assumpsit and Covenant 1..L. VIlI. 03 (1920). Shaver v. 102] (1774). 204 Pac. 21. Fabrigas. 7 AnLDec. Sommers Bros. 5 Minn. White.24 would not prove fatal. as Non Cepit denied the taking at the place mentioned in the Declaration. 52 Ill. 161.J.A. Cf. H. 5 Minn. Itecent Cases: Actions—Local or Transitory—Courts—JurisdIctIon—Negligence—Right to Sue In a Foreign Jurisdiction for Injury to Real Estate. 991 (1800).) 5 (1803). Natural History of Remedial Law 9O~ 94 (Northport.Cas. 17 Wend. 2 liihh (Ky. Smith v. 8 Am. 1 Caincs (N.. as was the case where the jurors were Selected because of their own peculiar knowledge of the facts in issue. 657. Foundations of Legal Liability. 1 Chitty. The Major Requisites of Plending. and the 23 Venue may be laid in any county. Albany. 16 1l1. This depends.L. Trespass to Realty is Local.” whether they sound in Tort. e. Pitcher. therefore.) 134. 70 N. 1123 (1892). And in this connection two situations will be considered: (1) Where the facts are of a Transitory character. 29 105 Ch. howcver.) 458 (1811). See. 714. 72 (1873). in contemplation of Law‟. as we shall now see.L. Place is. Gardner v.J. 445 (1817) . In some cases the Venue must be laid truly. and generally in Debt and Detinuc. 1922). but tions—tocal and Transitory. 335 (1801).L. as where the action is brought by the lessor or his personal representatives. 77 sE.etwcen the original parties to the deed. Duncomhc. Page 118 of 736 .Y. Nature of Ac- Generally speaking. Huntington v. Brady v.Y. Trespass or injury to land is a Local Action. Taylor v. Match Co. 190 (1848).Rcp.Y. Read v. (N. 52 N. 14 Johns. not material. 271 (6th ed. on Pleading. anti cannot be brought in another state than where the land is situated. whether the Action is Transitory or not depends upon whether it is founded upon privity of contract. 411 (1004). 63 (1920). Mostyn v. IV‟. McDuffee v. Altrill.) 112. 430.L. 61 Md. At Common Law Replevin was purely a Local Action. 472 (Idaho. 161 N. 23. [1893] AC. the facts may be stated as having occurred at one place and proved as occurring at any other. even though the cause of action arose within a Foreign Jurisdiction.

) 500 (1817). SI. Peacock v. not only in one state or county. Rarnage. without causing a discrepancy between the Allegations in the Declaration and the proof at the trial. 79 Eng. 31 (1774). the defendant might state the actual place.” This fictitious device was still in use in England in the early part of the Nineteenth Century. the Venue must follow the Declaration.” 29 or that the 27. University of Vermont v. 913 (1895). Ellenwood v. anti even where relating to land. if A brought an Action of Ejectment in county X 24.ElIz. Z9. 87 Eng. Cowp. unless his Defense requfres a different statement. and then laying the Venue under a videlicet. where the - Page 119 of 736 . S Serg. and the Venue could be laid in any county. 84. 21 Vt. whether the Action be Local or Transitory. IT has been seen that in all Local Actions it is necessary to Aver all material facts as happening where they actually occurred. 83 Eng. at Westminster in the County of Middlesex. where he could justify by way of a plea of special traverse. 113.~° But. Itep.. Marietta Choir Co. when the fact appeared in foreign state. Cf.Rep. Robert v. in laying the Venue. Peacock. 6 Mod. and the same is equally true as to the Allegation of all Local Facts in both the Declaration and Subsequent Pleadings. Cheeseman. the action would fail. an action could not be supported in a jurisdiction which did not include the subject matter—the land. 604 (1083). 158 U. 228. 1021 MISTAKE OR OMISSION trespass was committed in “Allegheny County in Maryland. Local Facts must always be truly laid. - against B for land described as located in county F.Rep. And in Transitory Actions. 161. Joslyn. 39 L.2~ When the Cause of Action and the Action itself were thus Transitory in their character. according to Keigwin. 25. was permitted to depart as widely from the fact as he thought fit and as was necessary to give the court in which he sued jurisdiction. for an injury to personal property within the limits of another. both in the Declaration and Subsequent Pleadings. thus it might be alleged that the deed was dated “at Fort St. Thus. to wit (scilicet) in the county of Washington in the District of Columbia. Wright v.Rep. for example. to wit. wherever executed.” 107 LOCAL FACTS—VENUE IN PLEADINGS SUBSEQUENT TO TEE DECLARATION 30. where it concerned land. the plaintiff. or without the limits of the United States. George in the East Indies. flenscood V. Brldgwater v. But in actions of the latter kind. a remedy was thus afforded. Mostyn y. in other words the defect would be available on Demurrer to the Declaration. 98 Eng. whether the Action be Local or Transitory. But when the Defense depended for its validity upon its locality.S. Bythway. 105. 1 Saund. but also for the Breach of any Contract. the action would be dismissed. 979 (1704). Sec. & II. 3 Lev.Ed. And the same was true where the action was brought for a trespass upon land which was in fact located in a Laying the Venue Under a Vidilicet Since place was not material in Transitory Actions.26 (2) Where the cause of action was of a local nature. (Pa. and was used in the United States as late as 189S. 3‟ it “is now used only by exceptionally careful pleaders.Rep. The usual way of accomplishing this was by stating truly the facts constituting the cause of action as occurring at the place where it really happened. even though the cause of action arose within a foreign jurisdiction. 93 (1667). as within the jurisdiction of the court.2~ Proof at the Trial that the land was located in another county. even if that other place accorded 25 with the truth. 705. Fabrigas. that is. 040 (1599). And if the land were untruly described as being in county X. and the place where it arose was not in accord with the place laid in the Declaration. 85 Eng. 52 (1848).Venue of the Declaration and could not specify another place for his Defense. Cro. 28. Ramseot. where the defend ant pleads Transitory matters.

669 (1898). Lockwood. „Pleader” E. SandIer v.) 676 (1845). See Ilderton v. unless his Defense requires the Allegation of a different place. 1213 Eug. 4 (Dublin. e. Declaration. Hopkins. 145. where the defect is apparent on the Face of the Declaration a mistake in laying the Venue for Local Matters was ground for Nonsuit. if not Demurred to. the omission remains fatal on Demurrer. 96 Eng. if it does not so appear. 3 Comyn‟s Digest. 34. „ Action” N.. ~ but in practice it is still usual to lay a Venue in these as well as in the Declaration. and thus to subvert the rule allowing the plaintiff in such actions 30. 1934). 169 U. it will be good cause for Special Demurrer. the day. by Motion for a Nonsuit on the ground of Variance. Ilderton. 18 S. Inhabitants of Woolwich 58 Me. 31. 7 Bacon‟s Abridgment. 4013. XVII. Rep. 95 Eng. OR OMISSION (I) A mistake or omission in laying the Venue may be taken advantage of— By Demurrer. if allowed to deviate from this. Ch. therefore. 3~. and. when necessary. Aultman. and it has been so held. without the necessity arising from a Defense founded upon Local Facts. month and year—when each Page 120 of 736 . where it is not. Locai and Transitory Actions 748 (2d ed. 1157 (1776). is obliged to follow the Venue that the plaintiff has laid. or taken advantage of at the 3 Trial.33 or by a Judgment by Default. 35. Keigwth.Ct. in such cases. an omission of the Venue. But since the estab]ishment of the distinction between Local and Transitory Actions. is the proper course.39 or by verdict. “Venue” 48 (London 1798). also.s. Bruckshaw v. THE DECLARATION—PLACE. by reason of 34 35 misdescription of the subject matter of the suit. 42 LEd. an incurable defect. 5 to bring his suit. Cases in Common Law PiSding. as it is necessary that some Venue be laid. 108 535 (1870). 2 WIll. the pleadings must allege the time—that is. in any county he pleases. may be aided by any Plea which admits the fact for the Trial of which a prop33. it may be Pleaded in Bar of the Action. ‟ And in Transitory Actions. Heard. if the fault appears on the face of the (II) By Plea in Bar or Motion for Non-suit. Cowp. 2 11111. 269. 32.Subsequent Pleadings ailege only matters Transitory in their nature. 81. Domont 37. 605. 476 (1703). 5 er Venue should have been laid. It would seem that the necessity of laying any Venue at all in proceedings subsequent to the Declaration would be obviated by this rule. per Lyre. in point of form. ~° but even in Transitory Actions. ~° and.Rep. Comyn‟s Digest. TIME. it is a rule that the Place of Trial laid in the Declaration draws to itself the Trial of all such matters. for. he would be able to change or oust the Venue in Transitory Actions. Holder v. Rochester. CONSEQUENCES OF MISTAKE 31. See Haskefl v. 1793). In Personal Actions.J.Itep. 7793). TITLE TIME4‟ 32. 1031. C. and its omission. 6 (Dublin. Clod. v. and consequently to lay his Venue. BY the ancient rule of the Common Law.32 The defendant. 7 Blaekf.

Milliken. and. 1 Chitty. 1774. also. Yates. that whenever it is necessary to lay a Venue. IV. 6 N.J. it was held that the Verdict must be for the defendant. 21 Pick. 334. See Perry. 157 (1873).Rep.Jac. that being now regarded as the Commencement of the Action. Taylor. 308 (1615). 45. 12. Pleading. 381. 44. 335 (Boston. Ticknor. Cordon v. Waring v. with payment due in two years. Anonymous. 5 43.Bep. 235. 98 Eng. 1897). Lan- 43. 101 Eng. and WI-lEN time enters into the terms of a con tract. 58. Opdyeke v. Denison v. Cheetbam v. 81 -Vt. 1876). 1774. 14 East 291. 79 Eng.) 63 (1819). (N.Rep.) 119 (1813). 359. Journal Publishing Ce. (N.. with payment due on December 23. e. 585 (1813).Rep. “Pleader” C. 4 TB. 635 (1780).L. 100 Eng. (1701). It is equally essential that no material fact be stated as having occurred alter the date or issuance of the writ. Wellings. Parish. But. 1300 (1777). the true time must be stated in pleading the contract. 104 Eng. Faxon.Y. Wellington v. 237. Forcer. 4 Mass. where the Declaration stated a usurious contract made on December 21. 537 (1834). Denison v.44 WI-lEN TIME MUST BE TRULY STATED hence must be correctly alleged. it is of the substance of the issue.llep. the principle of this decision was that since the time given for the payment being of the substance of an usuri ger v.) 36 (1827).Rep. Whenever time forms a material point involving the merits of the case. 43 Thus. 3 Johns. 3 TB.R. Crocker. 1 Lut. 1793): Halsey y. in the case of the Declaration. like that of laying a Venue. B. in some states. though but little practical certainty can result from it. (N.) 134 (1822). Sec. 100 Eng. 590. Bachelor. Of The Rules Which Tend to Produce Certainty or Particularity in the Issue. v. v. Roxbrough.Y. Downer v.. 263 (1808). 468 ~7832). 33. 531. 100 Eng. e.) 569 (1852). and eases cited. 3 T. 1192 (1792). 90 (1889).Rep. in order to avoid a Variance betwean the Pleading and the Proof. 243 (1002). 88 Eng.R. Clark. Pope On the rule where the instrument sued upon has no date. 14 East 291. 69 A-tI. Garland.Y. 1776. Streeter v. 125 Eng. 128 Eng. Cro. 2 Tn. 362 (1840). 4t By the express provisions of the Statute of 16 & 17 Car. down as a general principle. 17 Johns. 885 (1705). 149 (1822). Streeter. Barber. its 4uration should he shown. c. must always appear to have accrued before the commencement of the suit. that the cause of action.) 241 (1838). Tate v. 4 Conn. 21 Vt. Carpenter. (Mass. 123. Swift V. 2 Cowp. upon the plaintiff‟s own showing. XII. Cathcart. Earl. Common-Law Pleading. Jeneks v. 3 Ala. 5 T. Andrews v. 42. 612 (1811). 19 (Dublin. Thayer. II. Carlisle v. Stafford v. 5 (1664—1665). 43 Ill. Foster.Rep. Phelps. ICing v. 91 Eng. 40 Conn. See. Talcott.Ilep. Richardson. 387. 68 N. 10 Mod. 8 Serg. And see Mellor v. 311. and when a continuing act is mentioned. (N. see Grannis v. 39. (Pa. Pharr v. Comyn‟s Digest. Lewis. Of the Declaration 272 (springfield. Rep. Hollond. Trears. Go.H.43 It has been laid 38.Y. 2. Richardson. Hardy v. 346 (1794). extends to every Traversable Fact and must be stated as having taken place on some particular day. Graves v. 52 Atl. Bronson v. 5 Taunt. 104 tng. S Cow. 10 Johns. and the proof was that the contract was executed on December 23. 11 Barb. or is involved in any of its essential parts. 34 WHEN TIME NEED NOT BE TRULY STATED Page 121 of 736 . Ring v. Bemis v. 82 Me.Rep. 671. 620. it is also necessary to mention time.Rep. Maynard v. is necessary both to show upon the Record a material fact afterwards to be sustained by Proof. 1158 (1792).42 The rule seems on the surface designed merely to promote Certainty in the Pleadings. the service of the Writ is regarded as the Commencement of the Action. & B. 155 (1867). (Nt) 42 (1808).Traversable Fact occurred. Easton & A. 742 (1908). Remington 3 Salk. 19 Atl. IT is a general rule of pleading in Personal Actions that the necessity of laying a time. 236 (1831). 742 (1715). 612 (1811). as well as.

“is subject to certain restrictions: 1. the day on which it is alleged to bear date. but a mere circumstance or accompaniment of such matter. or inconsistent with the fact to which It relates. 49 The reason of the rule is that as a thy is not an Independent Fact or Substantive Matter. and may state a fact as occurring at one time. 263. Little v. 16 Pick.ous contract. where the Declaration alleged an usurious agreement on the 14th of the month. Forcer. 671.46 109 So. 650 (1795). Illinois: Searing v. by the nature of the Fact or Matter in connection with which it is pleaded. 40 Mich. is not compelled to allege it truly. then leaving the time indefinite. § IV. c. The words or phrase. Picket. Levering. Blunt. -48. 47. 88 Eng. 322 (1902). 1835). it obviously cannot in its own nature be material. if at all. the plaintiff was Nonsuited. 93 Eng.5‟ on a particular day.47 In pleading any written document. 1 (1875). though laid under a Videlicet. to forbear and give day of payment for a certain period. 237. 861 (1729). Trears. Mississippi: Hill v. save those previously mentioned. the plaintiff is in neither case confined in his Proof to the day as laid. Bacon. He should not lay a Time that is intrinsically Impossible.Itep. WHEN TIME NEED NOT BE TRULY STATED the issue or matter of 46. 545 (1879). XI.. ed. and can only be made so.5° or a parol contract made. 2 Sin. 365 (Mass.” Stephen. and thus constitute a bar to another suit on the same instrument by giving a different date. 2 Str. 463. 279 (3d Am. 69 Ill. 1300 (1777). so that the pleader. generally speaking. Therefore. A Treatise on the Principles of Pleading in Civil Actions. 575 (1873). Carlisle The same rule applies whenever the time stated in the pleadings on either side is to be proved by Record or by a 34. This ruie in regard to written instruments is necessary for the further reason that the Record should thus show the true date. vermont: Kidder v. and s not of the substance of v. English: Mathews v. 2 Cowp. 98 Eng. 49.Rep. Butler. Of the Principal Rules of Pleading. “on or about” has been construed as taking away all certainty. a record or a specialty. 2 Yeates (Pa. Davis. cited in Grimwood v. 42 Md. Johnson v. Robeson. Rassel. if he does not wish to be held to prove it strictly. 742 (1715). and prove it as happening at a different time.H. 311. Michigan: Rowland v. promissory note. The pleader. such time had to be proved as laid. & M. 511 (1855). 30 N. however. time is considered as forming no Material Part of the Issue. must be correctly alleged. Rep. Barret. 10 Mod. therefore. so far as the Declaration was concerned. description. 2. Spicer. that the day from whence the forbearance took place was material. 74 Vt. 101 Eng. Pennsylvania: Stout v. 40 Mich. 69 AtI. Si Vt. Page 122 of 736 . Gordon v. 506. 52 AU. Rule II. He should lay the Time under a videlicet. New Hampshire: National Lancers v. if a Tort is stated to have been committed.Rep. that the Judgment rendered in the case should operate as a bar to any subse~uent action involving the same cause. Rowland v. 545 (1870).. Davis. but it was proved that the money was not advanced until the 16th.) 541 (1844). tic all matters. Trafford. it being held by Lord Mansfield at the Trial. Maryland: Spencer v. and afterwards by the Court en banc. it having been one of the objects of the rule as to certainty. by Tyler. 6 LB. Whenever the time to be alleged does not constitute a material point in the case. such a bill of exchange. Washington. Stafford v. Journal Publishing Co. when required to allege a time for any Traversable Fact.) 334 (1798). (Miss. 742 (1908). Otherwise there will be a Variance between the writing itself when offered in evidence and the description of it in the pleading. 43 written instrument referred to in the pleadings. any time may be assigned to a given fact.

except that the day as laid in the Declaration. or inconsistent with the fact to which it relates. 16 Mass. Simson. S his Defense on a different day from that mentioned in the Declaration. This general rule has long been established. more especially if such Discharge was by Matter of Record. Newlands. The principle is the same as laying the true Venue by the defendant in Transitory Actions when the nature of his defense requires it. Time is not material in trespass. 50. so the defendant is not restricted to that laid in the Plea. Cf. Milliken. also. In all such cases the formal objection arising from the apparent discrepancy in time between the Declaration and the Plea yields to the more important principle that each party must be permitted to frame his Allegations according to the exigencies of his case. TIME.Dec. since the time must then be laid to conform to the date of such Record or Instrument. 468 (1532). 11 SW. Cro. N. must both be prior to the Commencement of the Suit. (Mass. 880. 472 (1520). 78 Eng. the defendant in pleading must follow the day laid iii the Declaration. the Law allows the defendant to vary from the time mentioned in the Declaration. It is therefore clear that in such case the defendant must state the Defense as having occurred after the wrong was done or the contract made. 283a (Philadelphia. 90 (1889).) 93 (1853). TIME OF CONTINUING ACTS 35. Pape. whether it be material or not. Pierce v. and as proved. there is no ground for demurrer if the time is unnecessarily laid as a Fact not Traversable. though impossible or inconsistent. and S2. International & 0. Roxbrough. Fields. when material. Again. Holmes v. THE DECLARATION—PLACE. 110 The Lady of Shandois v. 501.52 As the plaintiff is not generally confined in evidence to the time stated in the Declaration. Page 123 of 736 . 303. if the Defense is such as to render it necessary that the true time be stated in the Plea. or by a written instrument. Time to be alleged in the Plea WHERE time is not material to the Defense. however. 83 Am. 58. MaIne: Wellington v. the defendant is never required to follow the thy named in the Declaration in pleading Matter of Discharge. and its effect is that the Plea must state the Matter of Defense as having occurred on the day mentioned in the Declaration.D. A time so laid would generally be ground for Demurrer. have occurred subsequently to the creation of the duty or liability upon which the action is founded. 19 MI. 73 Tex. only when time is immaterial. will do no harm. 1812). and the matter of Complaint and Defense. 437 (1863). 82 Me. The rule applies. from its nature. even though that be not the true day. and so on through the Subsequent Pleadings. 1893). However. The rule still applies. for an unnecessary statement of time. English: Time. 1104 (1602). 2 Tyr. Pick-ens. where the alleged Cause of Action and the Defense pleaded actually occurred at one and the same time. clark.Rep. B. Its object seems to be the prevention of an apparent discrepancy upon the Record in respect to time. 526 (1889). Folger v. 128. and where the defendant is under no necessity of laying Ring v.Ellz. must be strictly laid and proved. must have occurred at one and the same time. And see. v. Gush. C. As to the statement or time under Code Pleading. I Kan. see Backns v. unless the nature or circumstances of the Defense render it necessary for the defendant to vary from the time thus stated. TITLE but may support the Allegation by Proof of a different day. Obviously. from the nature of the case. When there is occasion to allege a conS tinuous act in pleading. the time of its duration should be shown. 3 Perry & D. Co. and therefore. Co. 12 51. since all Matter of Discharge must.Litt. a time should not be stated‟ that is intrinsically impossible. Ch.

a Verdict being found for the plaintiff. 7 Taunt. breams. Upon “Not Guilty” pleaded. 425.Raym. Bracton. Long. Carth. after Verdict. Johnson what nature the fish were. IT is. without specifying the particulars. necessary. where the plaintiff declared for taking goods generally. or other hereditaments. 5 Co.Rep. the plaintiff had a Verdict. in Ejectment. 105.THIS rule applies generally where there is only one Count in the Declaration. took divers goods and chattels of the plaintiff. quality and value or price should be stated. 58. after judgment by Default and a Writ of Inquiry executed. in general. or for injuries to. 287 (1769). And in any action brought for recovery of real property. Playter‟s Case. When the Declaration alleges an injury to goods or chattels. as whether it consists of houses. and. So. 1893). 35 So. 1640). Rep. tenches. Stephen.57 So. quantity. Knight v. Here the act or acts should be alleged to have been committed on a given day and “on divers other days and times” between that and another day or the time of the commencement of the suit. 1. the 3 Judgment was Reversed after Verdict. 281 (3d Am.Rep. 36 DESCRIPTION OF PROPERTY 111 tiff will be allowed to offer evidence only in proof of acts committed during the whole or some part of the period covered. 4 Bur. it was.Rep. or other hereditaments. in an Action of Trespass. 2 Ld. S Ld.Rep. quantity and quality should be shown. as whether it consists of houses. 539. Dale y. lands. 1430. Eng. 260. where. without showing the number or nature of the fish. Symms. the court Arrested the Judgment for the uncertainty of the Declaration. OS Eng. the quality should be shown. Phillipson. Earl of Manchester v. 125 Eng. 25. e. Gattacre. ø~. 2 Lut. the Declaration was held to be bad because it did not show of what species the cattle were5° So. and in general it should be stated whether the lands be meadow. lands.°° 55.Jac. 642. and the plainSec. 02 Eng. ed. 85 Eng. etc. 638. and the Judgment Arrested. 77 Eng. II. 91 Fog. or any contract relating to them.” And the objection was allowed by the whole court. Pashley. 1176. 129 Eng. v.38 So. called “Long Furlongs. that their quality. Pope v. in a modern case. in an action brought for injuries to real property. the plaintiff declared for five closes of land. Vale.Lawly Page 124 of 736 .” containing ten acres. its quality should be shown. was moved in Arrest of Judgment that the Declaration was ill. arabIc and pasture. 92 676. 77 Eng. Rep. and value or price should be stated. etc. 431a (London. where. covering many days. of the Principal Rules of Pleading. 57. n. 11 Co. 418 (1701). 79 Eng. so as to show how many acres of arable there were and how many of pasture. 25b. secondly. or arable. ° So. Pickering. 1 Saund. 24. where blanks were left in the Count for the number of acres claimed. Rule III.Rep. in an Action of Trespass. the plaintiff declared that the defendant. Cro. Wiatt V. And the quantity of the lands or other real estate must also be specified.” without stating what‟ the goods were. A Treatise on the Principles of Pleading in Civil Actions. 2455. where the Declaration alleges any injury to goods and chattels. 1374. Bertie v. the Declaration charged the taking of cattle. and it “ v.Rep. And for this reason the Declaration was held ill. “that it did not appear by the Declaration of ~3. objected. the Court Arrested the udgment for the uncertainty of the Declaration. in Arrest of Judgment—First. 5$. pikes. 2 Salk.53 DESCRIPTION OF PROPERTY 36. “in a certain dwelling house. their quantity.llaym. flarpur‟s Case. real property. 758. 256 (1817). Essington. washington. C. 498. in aix Action of Dower.Rep. Roman Law.M Thus. by Tyler.. D. 34b. and in actions for the recovery of. Tillman.Rep. because the quantity and quality of the lands were not distinguished and ascertained. pasture. that “the certain number of them did not appear. or a contract relating tu them. and the subject matter of the suit consists of a continuing act by the defendant. in an Action of Trespass for breaking the plaintiff‟s close and taking away his fish. in an Action of Replevin. Monkton v.

103 Eng. 479. a general description being allowed where the matter to be described comprehends a multiplicity of particulars. a tender. 7 Taunt. 5 With respect to value. Pickering. Carth. Baynton. in the different aetions. 6d. Dale Rep. 31.Rep. and on issue joined it was proved that the plaintiff had demanded not £4 7s. 2 Saund. 6d. 2 Saund. 1 Saund. etc. 104 Eng. 306 (1810). Plowman. 129 Eng. number. “divers. English: v. 1. v. Page 125 of 736 . 458 (1858). upon Special Demurrer.Rep. 91 Eng.. Wright v~ Otway. n. 90 Eng. Prowd. written instrument. 640. after the cause of action accrued. a detailed description of which would either be impracticable or produce great prolixity in the pleadings. 63.Eep. the plaintiff demanded the said sum of £4 7s. n. 2 Salk. or the number of doors forced open. Hesketh 62 Layton v. 643.Rep. 85 Eng. see: Alabama. 3 Wils. 2 Lut. Crutchñeld. 4 Burr. 189 (1544). in which cases. (N.Rep. TIME. 1 East 441.Rep. Taylor v.. Haynes v. 85 Eng. three tables of great value. thus: “Divers. and wrenching and forcing open the doors. 256 (1817). three bushels of wheat.. 85 Eng. 1 Bog. 171 (1501). 333. 54j. 758.Rep. 90 Eng. 7. 126 Eng. which the defendant refused to pay. Cryps v. is good after Verdict. v. Chamberlain each case will conveniently admit of. 95 Eng. 13 East 102.Rep. 204. 642. and. Doe ex dem. Whiteheat].H. Haneocke v. has been allowed. without specifying the goods and chattels. 3 Bulst. Farrington. Smitb. in Trespass for breaking and entering a house. 2455. Knight v.Y. 287 (1769). 81 Eng. Andrews v. 26. a Declaration in Trover for two packs of flax and two packs of hemp. must be truly stated as they form part of the substance of the issue. and taking several keys for the opening of the doors of his said house.. when brought in issue. that the kind and number ought to be ascertained. Bertie v. Bradshaw v. Shum V. New Hampshire: Smith v. as to all but £4 is. So. is not so strictly construed. 65 The only exceptions to this are where the above facts are alleged in the recital or Statement of a Record. weight. fifty acres of arable land. 2 Salk. the General Issue. Rep. Phillipson. For example... but the whole £10 4s.Rep. thus: “Divers. Rep. to wit. 91 Eng. Boston. but that it sometimes admits the specification of quality and quantity in a loose and general way.Rep. without expressing what they were. for a library of books. Rep. This proof was held not to support the is64. it was objected. ‟ So. 643. TITLE The rule in question. to wit. n. or capacity.) 173 (1800). Greenfield. 65. & hi. 440.. 102 Eng. it is to be observed that it should be specified in reference to the current coin of the realm. 125 Eng. where the plaintiff declared in Trespass for entering his house. of lawful money of the United States. and the rest merely Aggravation. Symms. It. Lee et al.204. 1108 (1797). 98 Eng. Rep. 6d. to wit.” “ THE DECLARATION—PLACE. to a Declaration in Assumpsit for £10 4s. New York: Hughes v. and.64 and minuteness of description being required where a complete identification might be 65 essential to a recovery. that it was sufficient to declare. Layton v. 112 Ch. the defendant pleaded. however. damaging the goods and chattels. Pope v. C. as to the description of property. & P. It. are not generally material. Grlndall. 370 (1806). 1. And. 5 East 357. it should be specified by the ordinary measures of extent. and before the tender. The plaintiff re plied that.” With respect to quantity. as to the £4 7s. 6d. 722.. and other sums. it is sufficient that any quantity or value be alleged without risk of Variance in the event of a different amount being proved. quantity. as it seems. the value of twenty dollars. Wells. for that the essential matter of the action was the breaking and entering of the house. Griadall. without setting out the weight or quantity of a pack. 7 Ala. to wit.63 The degree of certainty requisite in stating matters of the kind mentioned seems to be such as the facts in 61. 722. 542. 94b. 1061 (1772). 5 Johns. But it was answered and resolved that the keys are sufficiently ascertained by reference to the house62 So it was held. as in alleging time regarding the same subjects. a Declaration in Trover. Thus. Tillman. 706. 36 N. Rep. even upon 6 Special Demurrer. Coodtitle cx dem. As quantity and value. 74. 74& GO. 292. or express con tract. after Verdict.

and need not be stated. and must be truly stated. 09 (1880). 1321 (1822). 127 Eng. Cf. Stokes. 150 Eng. Rubery V. 1026 (1737). 401. Lord Palmorston. and its omission. A person may be described by the name by which he is commonly known. 173 Eng. they may be used in describing him.Rep. 42 N. New Jersey: Elberson v. Shoarman. 4 MeCord (S. Tweedy v.L. of North Chicago.) 388 (1823).Rep. 630.Rep. also. Symms.” If. 171 Eng.°7 The test of the certainty required appears in all cases to be the liability of the pleader to the consequences of a 62 Variance when the Proof is reached on the Trial. 113 sue. 85 (1835). Persons Other than Parties TIlTS rule calls for strict accuracy in describing persons whose names are necessarily mentioned in the statement of the Cause of Action or Defense. 15 N. and a Variance in the case of persons who are not parties. 420 (1872). The Allegation of Quality in the subject matter. 90 Eng. ISO. 107. StevenS. Griffiths. I Mont. 2 Taunt. nor a Misnomer. 110 Eng. Pinch v. this will not constitute a Variance. & AId. v. since the correct identification of such persons by name becomes a matter of essential description. Cocken. Illinois: Becker v. 2 Str. is a misnomer in the case of a party. Jacobs. 171 Eng. (Mass.W.Rep. Semen. 414 (1815). Acerro v. 204.‘. material to the merits of the case. and is known by them. Co. Perkins. McCormick. 45 N. 11 Cush. & hi. the strict rule would subject the pleader in fault to the penalty of a variance. German Mut. This rule includes the names of per. 6. South Carolina: City Coun cii of Charleston v. Rep. 27 Pa. & Ado!. 37 v. Montana: Kemp .C. and if a man has initials for his Christian name. however. 69 NAMES OF PERSONS NAMES OF PERSONS 37. or is in the habit of using initials therefor. Commissioner V. S Taunt.) 487 (1828). King. The middle name or initial is no part of the name. 336 (1856). Williams v. English: Ahithol v. 320. 448 (1532). 722. I Stark-ic. WIlliamson. though they are in no sense concerned in bringing or defending the action. the name is incorrectly given as John Smith. 68. The pleadings must specify the names of persons. 1133 (1811). Ogle.Rep. Parker v. 106 Eng.E. 32 Me. 1061 (1826). 46. 27 Cone. if stated. Pennington. it also includes parties to the action. 72. Fire Ins. sons necessarily mentioned in the pleadings. I Pick. 68 III. 307 (1815). and their names must be correctly stated.‟3 Where the name of a person is misspelled. Janis. 10 (1890).Rcp. 129 Eng. Parker. Mayclstone v. 43 Minn. or a mistake in stating it. English: Some observations may be made here which apply equally whether the name be that of a person not a party to the suit. 412 (1873). if the 51 name as given and the name as proved are idem sonans. falls directly within the reason of the rule.) 546 (1853). Pennsylvania: In re Jones‟ Estate.Eep. 889. 67. 2 C. & B. Richards.Rep. though it is not his true name. or that of one who is a party. Minnesota: Kenyon v. Page 126 of 736 . Connecticut: Harvey v. and the reason is that any error in describing such persons may result in a fatal Variance when the Proof is reached. the law recognizes but one Christian name. I Starkie 200.M. Orispin Sec. 241. v. Petrone. Rivers v. Willes 5. though a more liberal practice now generally allows an Amendment where it does not substantially change the cause of action. Foster 69. (Mass. S Earn. 4 Barn. hi. 146 Mass. Carth. ~3.‟2 In most Jurisdictions. or proved.66. 125 Eng. 7‟ In a few states a middle name or initial is recognized by the law as a part of the name. but are necessarily named. 323 (1517). although they are not parties to the suit. Beniditto. And see. in pleading a contract made by James Smith. 178 (1850). 197.IIep. Whether names are idem sonans or 71. Commissioner v.J. since it generally requires strict proof. Forman v. 902 (1888). 42 (1858). Knight 70.

For further illustrations.) 437 (1796). 9 N. 27 Ani.) 164 (1804).) 329 (1835). nor.Dec. 7 L. Comyns. 203 (1813). Prevost. IDe Rentland v. 376 (1876).” Gresham v. 9. The following names have been held not to be idem sonans: “Tarbart” for “Tabart. TIME. Somers. 597 (1845).” Ahitbol t Benneditto.Y. are no part of the name. 43 AmPec.H.) 84 (1809). 4 ‟Comyns” for “Cummins. A.. Paul.Eep. 26 Vt. 599 (1854). 25 111. Federal: Keene v. 15 N. THE effect of this rule is plainly apparent from its terms.Ed. X. 7° An error in this respect. ~t The following names have been held Idem sonans: “Segrave” for “Seagrav. Vermont: Thaacs v. 24 III. Diekie. Fletcher. Pelt v.” etc. 2 Root But. 341 (St. The parties to an action include all persons who are directly interested in the subject matter in issue. 128 Eng. 919. Other questions applying both Page 127 of 736 . if stated. 611 (1829). 78. Stewartstown. New York: Franklin v.H. Petrie v. 549 (1867). if either be mistaken or omitted. (N. Pennsylvania: Bratton v. Davis. 78 and though the designation thus habitually used includes the person‟s initials only. New Ha. Illinois: Hendley v. Illinois: Thompson v. or to Appeal front the Judgment. TITLE 114 not depends. Shnw.Y. Jameson v. THE DECLARATION—PLACE. 12 Vt.” Bingham v. 61 (1824).H. S Ter. 674 (1839). 47 N. on the pronounciation. The plaintiff and defendant must be designated by their proper names. 40 Am. 558 (1864). Erslcino v.75 PARTIES TO THE ACTION 38. 232 (1843). Paul. Talmadge. 10 OhIo 263 (1840). Isaacs. (Mass.H.” though not strictly correct. Roosevelt v. to make a Defense. The worth “junior. 0dmthat Procedure. of course. and need not be stated. Seymour. 5 Taunt. 10 Ala. Woodworth. Clark. who have a right to control the proceedings. 519 (1838).J. Taylor. 3 Pet. 10 Palge (N.H. ¶6. proved. 913 (1814). 251 (1861).npshire: Wood v. “Petris” for “Petrie”. All others are regarded as strangers to the cause. 12 Vt.‟ Cruiksbank V. Tcx~ as: McKay v. 532 (1834).) 7 (1833). New York: Padgett v. New Hampshire: Lebanon V. Kinney. 3 N. 45 N. supra. the use of the names by which such parties are generally known. IllInois: Brent v. 354 (1866). 116 (1864). Ogle. 581 (1828).” “senior. 17 N. Both plaintiff and defendant should be described by their Christian names and surnames. Vittum. 36 III. Speak. Ck5 however. can now generally be cured by amending the defective pleading. 235.Y. Vermont: Brainard v. Lee. 2 Cow. Lucas. c. Shook. 40 111. (N. 6 Vt. 814. Walker. Illetch v.L. it is ground for Plea in Abatement. as certainty in the pleadings in this respect must necessarily be required for purposes of identification. and. and not by words of mete description. 4 Watts (Pa.) 463 (1824).Dec. 1895). 1895). Johnson. 125 (1864). 15 Pick.Rep. flanders v.) 170. State v. 242 (1850). Allen v. 130 (1835). Connecticut: (Conn. see. 2 Caines (N. and it must be shown whether they appear in the action in an individual or a representative capacity. Stilphin. Ohio: Herft Shulze. Ijeade. Gardinier. 3 Caines (N. “Benedetto” for “Beneditto. 1. Hart v. Jackson cx 4cm. Wiley. 602 (1860). see Clark. it VI.” Williams v. Ill. Lawrence. Massachusetts: Kincaid v.) 219 (1805). I-lowe. liberal construction of the rule allows.93 Eng. Pleading and Proof—Variance —Conviction of Minor Offense. 39 10 Mass. Criminal Procedure. 5 Johns. GrIffin. Pleading—The Accusation (Continued) 235 (St. supra.Y. New‟ Jersey: Dilts v. LIndsey. 21 111.Y. 370 (1846). Cobb v. as we have seen. “tisrey” for “Usury.

Ct. an action may be brought by or against him in his true name. 292 (1878). etc.) 486. In re Jones Estate. 102 Eng. Morse. ii the justice of the ease requires It. 125 (1864). trustee.flep. Sec. New York: Barley V.Y. 209 (1891). 1 Bos.) 118 (1809). Binder (Pa. English: Mayor & Burgesses of Stafford v. Jarvis.” without the use of the word. Illinois: Brent v. 848 (1890). executor. 36 lU.” since the omission will cause the word to be disregarded as merely descriptive.. the Court wiU consider it as merely descriptio personae. flO.81 without a description as such in the title of the action. & P. 280 (1839). etc. 27 Pa. (Mass. 1020 (1804). (Mass. of Commercial Bank v. describing himself as executer. 77.84 But. have been noticed above. 5 East 150. It cannot be objected to as a Variance at the Trial. and only recognizing its mdi 81. Carpenter. setting forth the Incorrect style or description. 115 Partners and Corporations WHEN the action is by or against a partnership. Massachusetts: Medway Cotton Manufactory v. Wolf v. since the designation of a parthership is always arbitrary. Alabama: Castleberry V..Com. it must be in the names of the individual members. Shannon. Roberts. Here the objection can only be taken by a Plea in Abatement. 126 Eng. where a corporation is concerned. Adams. as above stated. etc. 58 Hun 517. S Mass. and the party will be treated as an individual only for the purpose of the particular action. 80 Descriptive Words IF a person sues or is sued in a representative capacity. 10 Mass. 45 NW.Y. President. and cases hereafter cited. Connecticut: 1 Mont 420 (1872).Supp. King. 360 (1813). Roosa. Montana: Kemp v. 103 (1811). he must be named “as” executor. and also to naming persons not parties. 5 East 150. Bet-ton. If a contract or promise sued upon has been made to or by the person by a wrong name. 59 Hun 617. Massachusetts: Buffum v. as otherwise the entire object of the Complaint or Defense may be defeate&82 It is not generally sufficient to state simply. 79.83 To show that he is a party in the special capacity. Lord. Co. Shook.7° The effect of a mistake in the name of a person •not a party win. and may not contain the proper names of any of its members.Y. 21 Pick. 639 (1875). New York: Reald v. and stating that the parties are the same.. English: Where one sues. 12 N. amount to a fatal Variance when the Proof discloses the true name. the law takes notice of it only by the corporate name.Pl. 1026 (1804). I Mete. 62 N. as receiver.Rep.) 473 (1840). while the representative character in which he appears may be gathered from And the names of all parties should be disclosed. 13 N. George Page 128 of 736 .Y. 336 (1856). It is otherwise where the mistake is in the name of a party. French. executor. 83. “as.R. 180.Y. South Carolina: City Council of Charleston v. treating it as a sing]e artificial person. Minnesota: Kenyon v. 42 78.Co.Rep. 766 (1797). and it is important that the statement be made in the name recognized as effective. Chadwick.) 487 (1828). 642 (1843). Fennell. or by an abbreviation of his correct name. Knox vi Metropolitan Elev.Dee. By.) 10 Pa. 10 (1890). the fact should appear in both. Beers v. where express Statutes do not treat the firm as an entity. 40. 32 Am. “A.0. 4 McCord (3.Snpp. 4 Johns (N.B. 4 Ala. City of Lowell v. Henshall -v. Tweedy v. 102 Eng. StIllwefl V. Llenshall vi Roberts. Mccormick. 39 SHOWING TITLE the body of the pleadings. and allow the use of the name commonly employed in its business. 27 Conn. (1858). 43 Miss.under this head. 108 (1907). 73 N. Semon. 82.

if there be two or more persons or subjects. 9 Pick. Bentley y. Pollard 88. 36 (Dublin. some Title to that property must of course be alleged in the party. and the only method of description is by the use of the corporate name or title. 39. or in some other person from whom he derives his authority. and not on Title or Ownership. a Title to the subject matter of the controversy must generally be set forth in the pleadings in its full and precise extent. a naked Allegation of Possession being sufficient. (Mass. 522 (1Th3). Braeton. cited in Given „cc Driggs. in pleading. when the name of either party has been once introduced in the pleadings. 372l~.Y. Cro. if a party be charged with any liability. More specifically: (1) A person asserting any right to or authority over real or personal property must allege a Title to such property in himself or in some person from whom he derives his authority. 582 (1857). 116 1640). TIME. Poage. Burdett. unless there is no danger of confusion. To this rule there are two exceptions: (I) When the action is founded on possession only. Ch. Brubaker V. it is sufficient to allege a Title of Possession only. Smith. 1793). (Ky. next The exception to this rule in cases where the opposite party is estopped from denying Title will be presently TITLE IN THE PARTY OR IN ONE WHOSE AUTHORITY HE PLEADS 40.) 265 (1880). Halligan. “first aforesaid” or “last aforesaid.‟5 SHOWING TITLE The Pleadings must show Title.B.80 So. personal 85.Y. Roman Law. personal or real. Comyn‟s Digest.) 123 (1824). v. Higgins V. that of his alleging it in his adversary. In any case.Eliz. his Title to such property must be alleged. to use the word “said” or “aforesaid. 34.) 150 (1805). his Title to that property must be alleged. Exception—No Title need be shown where the opposite party is estopped from denying it.V. The form of laying a Title of Possession. And see Uildrith vi Harvey. considered. or in another whose authority he pleads. 173 (1867). 30 Ala. Grew v. 3 Calves (N. (II) In some cases. 5 We shall first consider the case of a party‟s alleging Title in himself. and the common practice is. where a Title of Possession is inapplicable. 373b (London. 267. a general Freehold Title may be alleged in lieu of stating Title in its full and precise extent. in respect Page 129 of 736 . (Ii) When a person is to be charged in a pleading with any liability in respect to either real or personal property. This applies to Personal Actions only.) 170 (1805). Repetition of Names FOR the same purpose of identification.Rep. victual members where thefr rights are in question inter se. 75 Eng. 5 84.” C. any right or authority is set up in respect of property.Mon. THE DECLARATION—PLACE. a repetition of it shouid be accompanied by such terms of reference as will clearly trace the identity as the same. C. it is the better plan. WHEN.” or. 46 Ill. „When Title is alleged in the party himself. I T. where it is material.” or terms of equivalent import. EnglIsh. TITLE or real. 3 Calnes (N. Alleging Title of Possession IT is often sufficient to allege a Title of Possession only. in respect of property. or in one whose authority he pleads. “Pleader. Lock.

it might be required.Rep. without showing the commencement of the estate. Taylor vi Eastwood. Grimstead v. On the other hand. Willes 619. to show from whom that person derived his. Sec. will be sufficiently sustained by the proof —in all cases where the interest is of a present and immediate kind. in the pleading. the plaintiff.Car. or that he was “lawfully possessed of a certain close. Webber. ii. Carnaby v. the commencement of the estate.‟7 So. 102 Eng. Co. whether it be that of a carrier or finder. 539. or that of an owner and proprietor. 624.St. Wilbraham 88. we shall consider the statement of the Derivation of the Title. there is this exception: It is necessary to show the derivation of the fee. Rnwkins.” In its full and precise extent. 1 Burr. be shown bow it passed from one of these persons to the other. Scavnge V. according to the usual form of alleging that Title. “Pleader. was the “close of” the plaintiff. Clay v. In such case it must. City of St. etc. the preceding forms are inapplicable. 100 Eng. whether that interest be temporary and special. 39. sufficient. Creenhow v. Cro. 440.R. Langford V. 79 Bog-Rep. in many cases. and then certain general rules as to the Allegation of the Titles themselves. With respect to incorporeal hereditaments. in Debt or Covenant brought on an indenture of lease by the heir of the lessor. for anything that appears. the statement will be supported by proof of any kind of present interest in them. however.Rep.of goods and chattels. 41 (Dublin. 1.” or that he was “lawfully possessed of them as of his own property. without showing the derivation. for life. that he “was possessed of a certain messuage. and Title must be laid in remainder or reversion. 132. in its nature. Marlowe. 84. only. 572. Thus. 85 Eng. The rule on this subject is as follows. of the Allegation of a Title of this character. yet a seisin in fee may be alleged. the seisin has already been alleged in another person. Rep. for term of years. from whom the present party claims. In general it is sufficient to state a seisin In fee simple per se. 04 Am. have had no other commencement than the seisin itself which is alleged.” etc. 1 East 212.” or in 87. and so ad infinitum. and therefore. without showing Title of a Superior kind.” etc. the estate may.” C. with respect to any kind of property. 87 Eng. 391 (1758). 119 Under the head of “Allegation of Title.Rep. C. of course. Rep. 1091. “and by reason thereof.. 98 for. where a Title in Possession is alleged in respect to corporeal or incorporeal hereditaments. when a Title of Possession is alleged with respect to goods and chattels. 717.Litt. where. 2 Sound. 42 Digest. of right ought to have had common of pasture. Comyn‟s vi Snow. 368.” With respect to corporeal hereditaments. Waring -cc Griftiths.Bep. whether fee simple. 883 (1897). Albans. 43 WXa. That it is sufficient to allege possession as against a wrongdoer.” etc. Where a Title of Possession is applicable. 83 (1801). or absolute. the Allegation of it is. A Title of Possession is applicable_that is. 3 Mod.E. 4Th. Even though the fee be conditional or determinable on a certain event. when the interest is of that description. 125 Eng. 4 T. in modern practice.. 1812).. or otherwise. that the party was “seized in his demesne as of fee of and in a certain messuage. 27 S. 1268 (1792). that is. as. 303b (Philadelphia. 1798). for example. or. on the subject of alleging Title in its full and precise extent. Page 130 of 736 . Thus. Ilsley. as it is expressed in pleading. having al fl. and by reason thereof was entitled to the right at the time in question.” etc. 1351 (1746). and upon the principles that will be afterwards stated. in pleading. as mere seisin will be sufficient to give an estate in fee simple. according to the fact.99 To this rule. if it were requisite to show from whom the present tenant derived his Title. PARTICULAR ESTATES stance. a Title of Possession is generally laid by alleging that the plaintiff was possessed of the corporeal thing appurtenant to which is the right claimed.Rep. is either to allege that they were the “goods and chattels of the plaintiff. during all the time aforesaid. simply to state. for example. the form is either to allege that the close. a Title of Possession would not be sustained in evidence by proof of an interest in remainder or reversion only. fee tail. on the same principle. 97 Eng. it will be sufficiently maintained by proving any kind of estate in possession. Besides.

25 Fia. 19.M. in pleading his Title by inheritance. 0. A Treatise on the Principles of Pleading in Civil Actions. brought on an indenture of lease by the executor or assignee of a lessor for a term of years. Co. 947.Rep. 43 (Dublin Page 131 of 736 . after whose decease the title descended to the plaintiff as son and heir. II. Hence.A general allegation of ownership is sufficient. D. 3 Wils. 1791). to this exception. 2 Mod. he must show the Derivation of that Title from its commencement—that is. 79 Eng. descent.‟ s seisin. 152 (1874). 103 Eng. if in trespass. but sets up a Subsequent Title in himself to the same land. and.Rep. by conveyance antecedent to the lease under which OH. he must show the pedigree.Itep. to himself. e.Rep.Rep. 120 303b (Philadelphia. prior to the alleged demise. & Prac. in general. that is. „Pleader.Pl. Smith. 79 Eng. 83. and the plaintiff.Itep. & N. 1893). TIME. The reason for the diversity between this and the rule as to estates in fee appears to be that. City of Chicago. viz. but. Shepheard‟s Case. leged that his ancestor was seized in fee and made the lease. 160 (1889). 1. the Particular Estate for years may be alleged in the lessor. 291 (3d Am. Bunion. must proceed to show how the fee passed to himself. claims. Cro. 190. WaslF ington. Johns v.ff. Thus. Searl -c. in fee simple. C.. 5 43. 157 Eng. Washington. Cone. whereas particular estates. demised to G.t So. under whose command the defendant Justifies the trespass on the land. 291 (3d Am.4 TITLE BY INHERITANCE and not immediate. Rule V. 474. 698 (1808). to state the Title of the lessor in order to show the plaintiff‟s right to sue as assignee or executor.Litt. in order that a Traverse may be taken upon any particular point in the Title. WITH respect to particular estates. 287 (Dublin. Cli. A Treatise on the Principles of Pleading in Civil Actions. C.Jac. 39. he must show the derivation of the fee from FE‟. 767. Robinson v. P3‟-ster vi Hemling. by Tyler. In pleading a Particular Estate. when a party sets up in his own favor an estate for life. that it need not be shown where Title is alleged by way of Inducement only. by Tyler. being always derived out of the fee simple. 2. where title to particular estates is thus alleged.” E. ed. Cro. 4 Mod. Irving. Giving Color. 10 East. 00. THE DECLARATION—PLACE. Doct. he must. 42. ~. its commencement must he shown. Whitley. 95 Eng. 742. by descent. except where Title is alleged only as Stephen. Bucki v. 73 Ill. show how he is the heir. 728. Where a party claims by inheritance. 86 Eng. without showing its commencement. in the Declaration.Bep. namely. a General Allegation of seisin in fee simple is Traversable. To the rule that the Commencement of a Particular Estate must be shown there is this exception. 562 91 Eng.3 The meaning of this rule is that. since it improperly blends law and fact. can regularly be created only by conveyance or by operation of law. C. 939 (1770). 2 Salk. 346. 6 So. Bragg V. in his Replication.. and if he claims by mediate. a term of years. ed. As 3.2 ALLEGING DERIVATION OF TITLE— PARTICULAR ESTATES Inducement. from the last seisin in fee simple. 72. II. Of the Principal Rules of Pleading. 21 Eriey. Of the Principal Ru)es of Pleading. it is necessary. THUS. if derived by alienation or conveyance. 103. the defendant plead that EJ~‟ . the substance and effect of such conveyances should be precisely set forth. Ste. 4 hurl.Pl. 1812).Rep. 1034 (1859). phenson. 5 Comyn‟s Digest. and a General Allegation of such an estate is not Traversable. and if he claim by mediate descent 4. TITLE and often is acquired by means consisting solely of matter of fact. 435. Dally.Car. or a tenancy at will. Stephen. a party must in general show how he became the heir. admits E. by showing the seizin and death of the ancestor. the general rule is that the commencement of Particular Estates must be shown. as the Title is thus alleged only by way of Inducement. in an Action of Debt or Cove nant. 87 Eng. Rule V. the time and manner of the derivation must be shown. 1893). 70. being seised in fee. Scilly v. see Cnthbertson v. as an estate in fee simple may be 1. Hendy v.

Comyn‟s Digest. such as by the Statute of Demurrers. and 121 Page 132 of 736 . 127 Eng. or a conveyance in tail. 2 Mod. WHERE a party relies upon title by conveyance or alienation. or of Form. 12 Mod. Eng. 7. 2 Salk. 52. he must allege or set forth the nature of the 7 conveyance or alienation in his pleading. 79 Eng. It was held that the descent. the nature of the conveyance or alienation must. 91 Eng. Croiac.Car. 1560. E. Sean v. Hughes. 562. In pleading Title by Conveyance. but that the failure to do so constituted a Defect in Form. it was pleaded that the rent descended to a cousin and heir.he must allege and prove the pedigree.. As applied to~ ~. 63. if the nature of the conveyance is such that it would. at Common Law. whatever might be the words of donation used in the instrument of conveyance. 24 (Dublin 6. would have been available upon Special Demurrer. 474 (1607). thus raising an issue of law as to whether the failure to set down the matter of cousenage constituted a Defect of Substance. 80 Eng.Rep. 138. in pleading a conveyance for life. is described by the term “enfeoffed. as a gift in tail. a deed or other written instrument. Blackborough v. The nature of the conveyance or alienation should be stated according to its Legal Effect. § 1 (1285). S. being mediate. be stated. Avery. I Lut. Bunion. in general. ought to be particularly set down. 363 (1825). 88.Rep.Rep. Thus. Lodge v. & P. with a livery of seizin. and hence was waived by the General Demurrer. STATUTE OF FRAUDS the manner of pleading conveyances this doctrine means that in their pleading they must be alleged according to the extent of the Title which they actually pass. 43. 378 (1614). 45. 453. Baskervile. 947.Rep. Blockley v. and not Verbatim. then no deed or writing need be alleged in the pleading. 70. in Heard v. • TITLE BY ALIENATION OR CONVEYANCE 44. 6 LEd. if the effect of the latter remains unchanged. feoffment. 125 Eng. MANNER OF PLEADING CONVEYANCE Dumsday -c‟. etc.” E. „Pleader. and the plaintiff Demurred Generally. c. with livery. Frye. 27 Eliz. be valid without a deed or other written instrument. as provided by the Statute. the defect. it must be alleged as a “demise” for life. such instrument must be alleged. THIS rule involves a specific application of the general rule that in suing upon written contracts or documents they are to be alleged or set forth according to their Legal Effect or Operation.) 449.” 10 And the form of pleading must still be the same. Davis. ° and a conveyance of the fee. 246 (1803). Day v. But where the nature of the conveyance requires. as whether it be devise.° where the plaintiff brought Replevin.Bep. should have been set forth. Nob. 46 1793). Daily. 5 Sec.Rep. at Common Law.Rep. Cro. 721. 619. 1793).” THE WRITTEN CONVEYANCE AND THE STATUTE OF FRAUDS 46. 23. Chlsm. When a party claims title by conveyance or alienation. even though such document may in fact exist.~ Thus. 10 Wheat (U. 86 Eng. 79 Eng. without showing how the cousin became heir. 232. in other words. There are two exceptions to this rule: (I) Where Title is pleaded under a written lease for years. or some other form of transfer. rather than its form of words. or else no advantage be taken of it. Scilly V. 5. 120. 3 Bbs. Slater.Rep. Skevill v.

217. Grants ((La. when accompanied by livery of seisin. Hen. Hen. be made by parol only. 3..J. S. or demise”. be valid without a deed or other written instrument. 13. though the lease was good. II. 20 14. by parol. 1. at least. it is not necessary to show that it was by deed. 5 at Common Law. Oa (PhiladelphIa. in pleading a Demise by husband and wife. Cro. The reason for this is that the Statute of Frauds merely introduces a new rule of evidence but does not alter or affect the rule of pleading.” And though. by indenture.z. the Declaration need not aver that the promise is in writing. in Whitehead v. The Rule Where the Conveyance was Only Authorized by Statute CONTRARY to the Common-Law Rule where the conveyance was valid even though by parol. n. 32 15. was not valid. but which the Statute requires to be In writing. if a conveyance by way of grant be pleaded.Y. whether such instrument in fact accompanied the conveyance or not. If an action is brought upon a promise to pay the debt of another. 1 (1676). TITLE Page 133 of 736 .(II) Where a Demise by husband and wife is pleaded.‟~ it was required to be alleged to have been made in writing. &e. as such a conveyance might. J. 122 Ch. Vanderlyn. Van Syckel. though both by the Common Law and by Statute such a Demise could be by deed only. Sib. 2. TIME. 75. c. 597. which. or for life.Rep. 5.L. in tall. The Rule Where the Conveyance was Valid at Common Law AT Common Law. The rule is the same as applied to ordinary contracts. as that was the only form in which the Statute authorized it to be made. and which was authorized by the first Statute of Wills. also. Burgess. could be made by parol only. 276a. declared: “Where an action is founded upon a contract which at Common Law is valid without writing.Eep. (N. (London 1614). 82b. 78 Eng. Gray.Abr. e. 500. though the Common Law requires one. 17. where a devise of land was involved.) 237 (1809). 38 AtI. 1 Car. a deed must be alleged. in 154O. 88 (1823). at Common Law. 802 (1897).18 Two Exceptions to the Common-Law Rule THE first exception to the rule that if the nature of a conveyance is such that it would. Rastell‟s Entries. IS. Thus. 336. I Sing. and then only by reason of the Statute of Frauds?9 The second exception involves a case in which it is not necessary to allege a deed. Thus. in making title under a lease for years. With respect to livery and feofment It has been stated that „wlthout livery it Is no feofment. 12. VIII. and need now be in writing only where it is for a term of more than three years. S. v. Formedon. tit. the form of the pleading nevertheless remains the same as before the enactment of the Statute in 1676. 10. 34 16. and was therefore pleaded without the Allegation of any charter or other writing. 85 Eng. at Common Law. vyniar‟s Case. tit. at Common Law. lid (London 1596). 600 (1609). Saund. Coke‟s Entries. the Declaration need not Count upon or take notice of the writing.ElJ. VIII. Co. S Co. Arnold. gift.Rep. is one which exists in practice. 1812). e.” See. Porter 11.Lltt. it is mis-ternary to plead the indenture. 245.‟~ and the second Statute of Wills in 1542.‟° And so. by the Statute of Frauds. 77 Eng. Thus. 647a.29 THE DECLARATION—PLACE. even if such be the fact. VIn. 150 Eng. Lathbury v. 61 N.17 for matters that “lie in grant” can pass by deed only.).‟3 such a conveyance will not now be valid unless made in writing. it need not be alleged in the pleading. a conveyance in fee. 4 Johns.Rep.Rep. Elting V.

61b. it is also generally sufficient. 1 Dyer 91b. are still to be observed. and some other or superior Title must be shown. 76 Eng.Rep. Cro. It remains for us to consider the case of a party‟s alleging Title in his adversary. It is not generally necessary to allege Title in the opposing party more precisely than Is sufficient to show a THUS far we have been discussing the case of a party alleging Title in himself or in some other under whose authority he pleads. 73 Eng. I Salk. on Pleading. in declaring against a person in Debt for Rent. not necessary. And see. in Debt. 487. Allen. to charge a party with mere possession. Sturges. however. 78 Eng. The reason for the difference is that a party must be presumed to be ignorant of the particulars 19. 3 T. PROOF OF TITLE AS ALLEGED yet. S P. 23 So. Stephenson. without showing in what manner the estate passed from the one to the other. Meller. 355. 760. that is. where the opposite party is to be charged with liability.R. if the same person were pleading his own Title. “Pleader. if the interest is by way of reversion or remainder. Derisley v. 2 Co. 482. Blake v. to allege merely a Title of Possession in such party. or that the same estate is vested in him. 733. 540 (5th ed.Rep. or to defeat his present claim. c. %ee the example. ChiMes v. in pleading the Title of an adversary. 1831). as we have seen. 123 Page 134 of 736 . it seems that this is. Rep. though. 42 (Dublin~ 1793). own Title. though he is bound to know his own. There are cases in which. (1795). would not be sufficient to show his liability. SO. 4 PIt. 100 Eng. and cannot be sustained by proof of some present interest in chattels or the actual possession of land. Wescot. it is generally sufficient to allege a Title of Possession. Sec. it would not be sufficient to show that he was possessed. 903 (1790).Rep.R. in general. as assignee of a term of years. 2 show a liability in the party charged. Turney v. with respect to a man‟s 21. 100 Eng. this form of pleading Title is inapplicable.Bep. 558 (1590). or to defeat his present claim. The same distinctions as to the nature of the interest or right. Where a Title of Possession is thus inapplicable or insufficient. To Case. Except as far as these objects require. 1~05 (1399). 2 Chitty. Den ham v. as has been precedently laid in some other person. And. unless alleged by way of Inducement. Rider v. Cro. AS in the case where a party pleads his own Title or that of another through whom he claims.Rep. this may be done with less precision than where a man alleges his own. $10 22. it is still unnecessary to allege the Title of an adversary with the same precision and accuracy as where the party states his own. in cases where it happens to be requisite to show whence the adversary derived his Title. 847 (1790). Therefore.Rep.Eliz. 198. and that Title need not be fully and precisely stated.Rep. it is sufficient to plead such Title by a que estate. that the commencement of Particular Estates should be shown. 49 5 Cornyn‟s Digest. 91 Eag. Custance.. in general. Thus.Rep. Wiseot‟s of his adversary‟s Title. ‟ WHAT IS A SUFFICIENT ALLEGATION OF LIABILITY 48. 547 (1792). I3ardr. The rule on this subject is that it is not necessary to allege Title more precisely than is sufficient to show a liability in the party charged.22 the requirement being only that the Allegation shall be sufficient to show the liability charged. 145 F]ng. Foster. 459. Attorney General v. also. it is the rule.” C. a full and complete statement would be necessary. even in a case where. a party cannot be compelled to show the precise estate his adversary holds.Eliz. and therefore. 78 Eng. to allege that the opposite party has the same estate. 678. 24 Thus. London. Bateman v.WHERE A PARTY ALLEGES TITLE IN HIS ADVERSARY liability in the party charged. but it must be shown that he was possessed as assignee of the term. 435. 47. Xi. 77. 101 Eng. Smith.

to wit.R. he must precisely show the conveyances. in this case. Duke of Newcastle v. 487. But with respect to title. and that in substance. 100 Eng. time. 1505 (1709). v.D. n. the plaintiff alleged in his Declaration that he demised a house to the defendant for seven years.R.~ Upon the same principle. Bristol v. be sufficient. 85 Eng.26 But. 85 Eng. without showing how he is heir. With respect to the Allegations of place.Rep. PROOF OF TITLE AS ALLEGED 49. and where it is laid in his adversary. 459. and to say. if the plaintiff. TITLE Page 135 of 736 . that is. came to and vested in the said C. The Court held that though the plaintiff might have declared against the defendant as tenant at will only. both where it is laid in the party himself. Guyse. THE DECLARATION—PLACE. Stephenson. 3. none need be shown. demised at will only. after several mesne assignments. E. BrIstol 27. Attorney General v: Meller. having stated a demise for seven years. if Title be laid in an adversary by descent. it may next be observed that the title so shown all the estate and interest of the said E. and must be strictly proved.Rep. 83 Eng. 83 Eng. 24 (Dublin.Itep. [the originai lessee] of and in the said demised premises. Judgment was given for the defendant. it is sufficient. Attorney General v. ing. 145 Eng.”. sue the lessee for rent. the proof of a lease at will was a Variance.27 but if a party entitle himself by inheritance. 112. Guyse. Cornyn‟s Digest “Pleader” B. we have seen that the mode of descent must be alleged. Rep. ordinarily. 112. as assignee of the term. 100. Hardr. after stating the original demise. Rep. 555. I Lev. and the action would have lain. 23. it is. Rep. do not require to be proved as laid. Guyse. and. 121a (Philadelphia. THE manner of showing title. not in form only. by assignment. it is sufficient to charge him as heir. 124 310 (1703). Where the opposite party is estopped from denying a Title. 25. 91 Eng. 122. “after making the said indenture. and therefore. Ce. it was. claiming as assignee of the reversion. and during the term thereby granted. at least. 1793). 4 P. with respect to this house. be strictly proved. it appeared in evidence that the plaintiff had demised to the defendant several tenements. required to be maintained accurately by the proof. 1812). Custanee.intheyear . Rep. 143 Eng. as. of which the house in question *as one.where the defendant is charged for rent. during the term. Bristol v. in general. TIME. 903 (1790). and that. viz. 1 Salk. that it came by assignment. without further showing the nature of the mesne assignments. in most cases. it has been seen that. 24.Rep. if the case be reversed. yet. 1. Cli. 5 lease. generally. S P.28 ESTOPPEL OP ADVERSE PARTY 50. Title is ordinarily of the substance of the issue.Lltt. when issue is taken upon them. for example. Blake v. to allege that. where an Action of Debt is brought against an heir on the bond of his ancestor. 77. Foster. 19. 1 Saund. all the mesne assignments. by an exception in the 20. Pitt v. the defendant so negligently kept his fire that the house was burned down. 101 Eng. 347. Russell. when issue is taken upon it. n. on the dayof ______ . 85 Eng. 355.Rep.Rep. 1 Saund. Thus. 1 Saund. and value. as son. or otherwise. Derisley v. 459. but that. of the Substance of the Issue. quantity. in an action on the Case. Bardr. 122. Denbam v. they. p. And the defendant having pleaded ncm denzisit modo et forma. on the ground of such Variance. 547. 1. 322. by which he became entitled to the reversion. Wright. having been now considered. 3 Lee.F. if laid under a videlicet. or the person whose authority he pleads. 363 (1665). without circumstantially alleg 23. 112. or other media of Title. Mefler. will not.

~ but if such Justification is by any one except such officer. he must set it forth particularly in his pleading. Cuthbertson v. Collet v. warrant. the nature and extent of the Jurisdiction of such Court should be shown. though there are important distinctions as to the degree of particularity re 29. See. for a buyer who has accepted and enjoyed the goods cannot dispute the Title of the seller. 377. it is unnecessary. 102 Eng. because a tenant is estopped from denying his landlord‟s Title. he must set forth the facts in detail. 1812). Bristow v. and it is not sufficient to Allege Generally that he committed the act complained of by virtue of a writ. must answer all that it assumes to answer.Rep. in addition to the allegation that the plaintiff sold and delivered them to the defendant. in an action for goods sold and delivered. Thus. however. or other authority.35 (4) When it is necessary. executor. this may be done without setting forth any of the previous proceedings in the suit in which such Judgment was rendered. if the action be brought. not by the lessor himself. 283a. Lord KeIth.3° It must not only be specifically described. On the other hand. the Judgment must be set forth as well. Irving. for the purposes of a justification. 17 (DublIn. 6 0. in order to show that the reversion is now legally vested in the plaintiff in the character in which he sues. 651. Thus. This exception is that no Title need be shown where the opposite party is estopped from denying the title. where a defendant justifies under a writ. to Plead the Judgment ef a Court of Record. Cartb. U. The principle of the rule is that as a Plea in Bar. Co. for the tenant is not bound to admit that he was seised in fee. the plaintiff need allege no Title to the premises demised. Lamb v. 90 Eng. 3°-Lamb v~ Mills. 1034 (1859). but by his heir. or other representative or assignee.Rep. to state that they were the goods of the plaintiff. in pleading the Judgments of Inferior Courts. he must show that the Writ was duly returned. even a party to the action.Lltt. so all material Allegations which make up the answer it contains must be fully and particularly stated. 4 Hurl. 52 125 qttired by the rules of pleading in different eases. Comyn‟s Digest “Pleader” E. the title of the former must be alleged. or the Plea will be defective on Demurrer. SHOWING AS TO AUTHORITY 51. 7 RIng. should further aver that such authority was substantially pursued.3° (5) When the Justification is founded on process issuing out of an Inferior Court or a Court of Foreign Jurisdiction. 141 Eng. 4 Mod. 721. So.Bep. it will be proper to notice an exception to which it is subject. in order to render his Justification complete. 1703). Bundle. Smith v. 202. in debt or covenant brought by the lessor against the lessee on the covenants of the lease. 87 Eng. MIlls. a tenant is not bound to admit Title to any extent greater than might authorize the lease. he must allege that the lessor was seised in fee. 31. and in such case he should also show that such authority had been substantially pursued. Rep. 377. Scott. if he sue as heir. he is required to plead such Writ only. warrant. & tC. if a return is legally necessary. 2 Doug.32 (2) If the Justification is by an officer executing a Writ. and therefore. therefore. 4 Mod.11. the plaintiff cannot claim as heir. PROFERT OF DEEDS Page 136 of 736 . 99 Eng.Rep. 2 East 260. or precept delivered to him. These may be stated as follows: (1) It is unnecessary for any person justifying under judicial process to set forth the cause of action in the original suit in which such process issued. Where in an Action of Trespass. unless he was so.29 v.3‟ In all cases. (ItS. where a greater degree is required in the Plea than in the Declaration. to be effective.Rep. where the defendant justifies under judicial process. it may be pleaded in general terms.) 771. Wright. but the defendant. 453. Exception—Where an authority may be verbal and general. precept. THIS is an instance. 368 (1802). 251 (1831). In general. 131 Eng. 654 (1SSO). as well as that the cause of action arose within ~ In general. RIch „vc Woolley. 87 Eng. under the general rule requiring certainty in the pleadings. the defendant seeks to Plead a Justification under such an authority as is mentioned above. 665. also. 157 Eng. it must be particulary set forth in his pleading. 742. Ciudlip and. 303b (PhiladelphIa.THE rule which requires that Title should be shown having been now explained. and not the Judgment on which it was founded. Rep. 421 (1781). 45a Sec.34 (3) Where an officer thus justifies.Eep.

I Ill. TIME. In all pleadings where a deed is alleged under which the party claims or justifies. 856.Rep. however. Govett. 320 (1845).11. 260 (1809). The effect of profert was to enable the opposite party to demand Oyer. 703 (1808). Veale. 3 T. II. Buekmaster. also. Brltton t Cole. illinois: Mason v. 106 Ga. Cat-ton v. A Complete St 9 System of Pleadings. 95. and the party was not required to produce it. 3 Mod. Vermont: Lee v. 102 Eng. 8 Ala. 1 Cowp.) 334 (1839). 98 Eng. 150 (1895). Lord KeIth.Rep. 126 THE DECLARATION—PLACE. v. 138.Rep. Co. or an inspection of it. Merrill. Georgia: Chicago Bldg. 256 (1838). Andrews v. I. where the defendant.Rep. Follensby. 1909).38 PROFERT OF DEEDS 52. A Treatise on the Principles of Pleading.Rep. Gould.4‟ If the instrument was lost or otherwise beyond the power of the party to 42 produce it. where an authority may be constituted verbally and generally. Albany. & 311g. 10 East 73.Rep. 22. Garth. c. Alabama: Magee v. Jones. 1093 (1738). TITLE rectly upon it. by Will. 53. Pt II. 1797—99). Cheasley v.Rep. 103 Eng. IV. 84. Felgate. 183. Barnes. Page 137 of 736 . e. New Hampshire: Judge of Probate v.1828).B. 01 Va. An instance of this is the case of the entry of a Cognizance in an Action of Replevin. 125 Eng. 83 Eng. 87 Eng. 10 Gill. without alleging any warrant for the taking. SI. Willes 30. Collett v. Moravia v. Massachusetts: Thatcher v. Shortland v. Procedure. WIlles 122. Maryland: Brown v. Co. Rowland v.4° and founds his Claim or Defense di 38. or hearing of the Instrument. I. aSS (Phila. Lyman. 860 (1826). (Breese) 27 (1820) . See. 5 Barn. Cary. 1115.. though they may be set forth in a concise and summary manner. & Ci. 120. 93 Eng. Bellc V. 75 (6th ed. 80 Vt. 485. 351 (London. 1909). Pro fert of such deed must be made or the omission excused. MorrIs. on Pleading. Albany. 108 Eng. 800 (1896). 33. 1 Q. he must generally make a Statement or Profert in his pleading that he brings it into Court to be shown to the Court and his adversary. 1 Chitty. 944 (1774). and it is allowable to plead it in general terms. 90 Eng. Sloper. 388 (1802). IF either plaintiff or defendant alleges an instrument under seal. 1 Lev. Co. 100 Eng. Mathews v. Of the Declaration. Richmond Ry. 197 (1907). 1039 (1737). 67 A.the previous proceedings are stated to some extent. Broadbent. 3 (1841). 34. PrIce. 1184. 369. Turner v. Pt. 443. Dimmitt. Cognizance in Repievin AN exception to the general rule exists. 315. 400 (1862). James. 8 N. an excuse for the omission was necessary. 182.R. 39. & 3. c. (Md.. Morse v. by Will. Wentworth. But the rule is not applicable unless the deed is the foundation of the Action or Defense. 32.Rep. Gould. 79 (6th ed. 31 8. 88 (1703). A Treatise on the Principles of Pleading. Fisher. 35. 18. before he was required to plead. The import of the statement is that the party has the deed ready to give the opponent Oyer. 522 (1789). 125 Eng.Rep. 2 Str. 40. admitting the taking of the goods. 27 III.Rep.Rep. if required. Talbotton Creamery & Mig.H. It Is otherwise if the Justification Is founded upon the Process of a Court of Record. 3° unless in the case of letters testamentary or of administration. 5 Mass. 22 SE. Mlddleton v. may justify simply as an officer. Procedure. 2 East 280. In actions by administrators and dxecutors the rule requiring profert was extended to letters testamentary and of adminIstration. There is no right to have Oyer of a deed referred to in the plaintiff‟s Declaration merely by way of Inducement Lsnghorne v.

375 (1894). I. Wash‟ ington.) 262 (1822). Procedure. 37 (Dublin. 52 5. 10 Mass. (N. 2 Pick. 07b. PresIdent. Brown V. Of the TO LEGAL EFFECT 53.) 777 (1905). also. Massachusetts: Powers v. 2. 4~ This in ancient times 4’. As an instrument or other matter alleged in pleading must principally and ultimately be considered with reference to its effect in law. 1793). Lade. 1 LBS.. of its production in court.Va. French.St. or of founding on some part of its contents. 150. 23 N. He Is therefore allowed this privilege of hearing the deed read verbatim. Haim. by \ViIl. Comyn‟s Digest “Pleader” C. So much only is stated as is material to the purpose. 1805). of Commercial Eaak v. D. New York: Hosley v. Massachusetts: Lent v. 58 W. Arclmr. (Ky. 1150 (1809).Y. Bacon. 31 III. 256 (1833). Howell v. People. French. Abridgment of the Law “Pleas” 1. n. English: Barker v. C. 87 Eng. 230.) 316 (1795). A Treatise on the Principles of Pleading. Padelford. ed. Higgins. (Mass. 54 III. And so if pleaded by a stranger to the deed. 105 3. setting out an instrument in full is a sufficient Profert. 7 (London. Willon.” Stephen. 438 (1863). This rule applies only at Common Law. West Virginia: Riley v.) 489.Rep. Kentucky: Barbour‟s Adm‟s v. 11 East 633. Illinois: Lester v. 52 (1841). (Mass. Judge of Probate v. From Its Commencement to Its Termination. 7. Pleading.S. 21 Ill. 85 Eng. 44. 150 II]. 45. 587 (1810). 504. 1 Tyler (Vt.) 308 (1802). INns. 4 Mod. if he prefers not to construe its Legal Effect. etc. of which the example last cited will also serve for illustratioa. That 138 (1863). 2 Pick. 21 Pick (Mass.—thus: “By his certain writing obligatory. 106 Eng. 1900). Chester v. Stroud v. by Tyler.Rep. being one relating to purely formal Allegations in Pleading.45 The meaning of the rule is that. 119 (1813). Connecticut: Paddock v. CONTRACTS and conveyances are to be pleaded according to their legal effect or operation. 280 (1839). 598 (1859). and now shown to the Court. The other party. sealed with his seal. 553. 87 W. c.) 451 (1824). 317 (1863). 770. 12 N. 408. Pt. II. Moore v. 263 (1873). some matter of answer. Earl of Plymouth. New Hampshire: Keyes v. but it is now done by an Allegation in the Declaration or Plea. 3 Barn.” etc. 2 Root (Conn.H. may reasonably desire to hear the whole. 12 Mich.Rep.E. 6 N. 213. An inspection of written Instruments upon which an Action is founded. People. was done by actually producing the deed in Court at the time of the Oral Allegations.H.Dcc. Lady Gerrard. Albany.Rep. c. 31 Cyc.Iiep. The pleader is ordinarily allowed to set up the instrument in its very words. Detroit Young Men‟s Soc. 11 Coun. or which are in any way material to it. Proceedings in an Action.1tep. Dearborn. 100 (3d Am. 1004. 1798). Archer v. 387. 43. (Ky. 103 Eng. the p]aintiff must make Profert of the bond. Claflin. Ware. 40. 91 Eng.) 451 (1824).. 8. not set forth by the adverse pleader. 42. is provided for by special provisions in all the Codes. and if the defendant in an action were to set up a release under seal he would have to make Profert of it. 97. Contracts and conveyances are to be pleaded according to their legal effect or operation.) 8 (1813). it should therefore be stated according to its Legal Effect or operation and not according to its terms. Williams. as the case may be. 787 (1921). see Regents of the University of Michigan v.E. A Treatise on the Principles of Pleading in Civil Actions. 32 AmDec. 316 (1693). 28 N.11. 2 Saund. Merrill. Svcst Virginia: Brooke County Court v. Page 138 of 736 . 37 N. Ware.Va. Vermont: Austin v. Black. Curry v. 1. WRITINGS PLEADED ACCORDING “For it is to be observed that the Forms of Pleading (10 not in general require that the whole of any instrument which there is occasion to allege should be set forth. and this either for the purpose of enabling him to ascertain the genuineness of the alleged deed.&Aid. 1 Salk.Thus. Yost. Richards. 6 Am. 326 (1886). 2 Litt. 44 A failure to comply with this rule renders the Declaration or Plea demurrable. Illinois: Crittenden v. Gould. United States Fidelity & Guaranty Co. Massachusetts: Powers v. See.11. 81 (6th ed. however. 66. 41 Am. Birney V. 3 Bibb. Connecticut: Andrews v. in an Action of Debt on a Bond.

his estate in the lands holden in jointure. without setting out the terms of contracts or instruments which often. though in terms of the deed. a Variance. Lady Gerrard.B. this. and it suffices if he alleges their true legal effect or operation. L. 5 Page 139 of 736 . the Plea should have been so pleaded. that as A had no legal interest in the land. if a joint tenant conveys to his companion by the Words “gives.” etc. 151. 100 Eng. LB.Rep. and to support his allegations by the offer of the contract or instrument itself at the trial. except the names of the parties. 87 3. Pleading facts according to their legal effect is sufficient. there could be no reservation to him. generally. and. 132.Law Pldp.” It should therefore be pleaded. 4 Mod.49 In all cases. 77 WVa. that B Was seised in fee. and not as a grant. etc. and must be 47 pleaded as such. It extends. United States Printing & Lithograph Co. & W. 183 AppjDiv. So. 91 Eng. though in its terms a “grant.Barker II. 87 Eng. Lade. and that if. to all instruments in writing. the premises. that the Plea. as was contended in argument. 150. Co. 5 WRITINGS PLEADED in stating an instrument or other matter in pleading.Rep.M Where. it should be set forth. indeed. granted. 20 Wis. often confined to deeds and conveyances. 177 App. B.Eep. Willon. Russell. 5‟ Ch. or the result will be the same as if the statement of either in detail is incorrect. 7. subject thereto.. 311. as the Court will construe it for him.. If he does aver its 49. a surrender. TITLE Legal Effect erroneously. 220 (1910). where the Plea stated that A was entitled to an equity of redemption. 151.1916D. since it enables a party to state his matter briefly and With precision. v. and afterwards upon Writ of Error. A deed may often be thus pleaded Without using a word which ft contains. Moore 127 (1871). it was held upon General Demurrer. and the reason seems to be that it is under the latter aspect that it must principally and ultimately be considered. Waugh 5°. 3 Earn. v. the deed would op erate as a grant of the right. 587 (1819). etc. written or verbal.supp. 356. but that he “released. and therefore to plead it in terms or form only is an indirect and circuitous method of Allegation. therefore. and that they.11.” “grants.Supp.Rep.. Rep. 770 (1670). Barker v. The rule is thus one of utility. in effect. Lade. H. by way of reservation. if a tenant for life grant his estate to him in reversion. it may be said. but amounts to that species of conveyance called a “release. 4 Mod. this is.Rep.” etc. that is. Hooker.. 868 (1814).Sec. 814 (1918). and in which the form is distinguishable from the legal effect. While the party must state correctly the contract or instrument on which he relies) and. care must be taken that the legal effect of the contract or instrument is accurately stated. v. even in modern conveyancing. Thus. 316 (1694). & Aid. and the sums. Delaware. 316 (1694). a written instrument is set out in hace verbcz) it will be sufficient. 85 Eng. 53 Ch. Dobbins V.4° So. by lease and re-lease. TIME. 163 N. etc. 2 Saunders 07._6 v. 328 Eng. Stroud v. and should have alleged a grant.48 Cook. reach an in terminable length. excepting and reserving to A and his heirs. Wisconsin: Grannis v.A. 5 Taunt. Chester 47. KaiSer & Reppy Com. if the evidence differ from the statement. 60. 849. the dates. but according to its effect in law. the Averment will be rejected as surplusage. 128 THE DECLARATION—PLACE. to all matters or transactions whatever which a party may have occasion to allege in pleading. The rule in question is. alleging the right. he is not compelled to follow the precise form of words in either. and. and contracts. 513. 87 Eng.Div. not according to its terms or its form. Powers. a liberty of hunting.” etc. I Marsh.. 65 46. v.Y. the whole foundation of his action will fail. however. was bad. in its terms. not that he “granted.Y. and not a reservation. 454. Earl of Plymonth. however. 707. 6. 170 N. and the pleader need not dedare further its Legal Effect.” is not properly such in operation of law. I Salk.

Y. Norfolk & W. F. 199 IlI. an Essential Allegation of the Declaration is that the injury is to the Damage of the plaintiff. Co. it might perceive that the agreement is signed by the defendant only. Deck. (111. and if the Court were permitted to look to that copy. es (1021). by attaching it thereto and referring to it therein. Gray. 10 N. 241. 1 Scam. but of the land withheld. App. & S.App. 257 (1804). v.E. General Damages are such as may be regarded as the direct. Lee. e. Molony. Leech. 22 flI. Sayre. 259 Ill. Charles H. Kizer.Cas. and it is to be presumed. 3 Bar.55 If the Declaration.Y. Cities Service Co.) 311. 5 MuM. 259 Pa. Pennsylvania: Dennison v. however. IN those cases where damages are the principal object of the action. 331. in general. v. Barber. Page 140 of 736 . (D. Copy of note not part of Declaration. (Ala. 2 Johns. Village of River Forest. The recovery cannot. 52 Illinois: Continental Life Ins. Illinois: Morton v. New Hampshire: Bolt V. Alabama: McWhorter V. Van 56. 2 N. XXXVII.) 193 (1835). 274 (1828). Pearsoos V. 193 111. 52 Flit. (Vs. McFadden V. Co. 806 (Philadelphia 1807).App. 59 Am. 7 Conn. McClure. 119 Ill. the amount laid in the Declaration should be sufficient to cover the real demand.) 87 (1825). the Illinois Court said: “To the Declaration is annexed a copy of the agreement. or probable result of the wrong complained of. Co.E.” The rule that a separate writing cannot be made a part of the pleading. Maine: Bean v.Dee. Ayres. and the Jury gives entire Damages.. 248 (1859). 55. 47 Am. 10 Ill. (N. 474.) 546 (1819). 14 N. By.) 494 (1817). 367 (1900).) 225 (1829). Robert Grace Contracting Co. but riot set out in. or evidence of them will not be received on the Trial. or previous 1 to the plaintiff having any right of action. (Ky. And Special Damages are those which the law does not regard as the necessary conse 51. There may be other instanc 53. See. 230. 9 Pa. Mon. and cannot be controlled by the Averments of the party. 67 Me. Rogers. Thompson Co. 172 (1850). Virginia: Tennant‟s Ex‟r v. Rensselaer‟s Ex‟rs v. 223. after Verdict. (Md.It is a technical rule that Common-Law Pleading cannot be done by exhibits. not of damages. 2 Tidd. Buns.Rep. The Practice of the Court of Kings Bench. 164 (1848). quences of the wrongful act. Hodges.M but no inconvenience will arise if the amount claimed is greater than that proved. New York: Fish V. In the case of Pcarsons v. 482 (1878). Dodge. exceed the amount thus stated. 5?. Jaffray. 994 (1923). DAMAGES—GENERAL AND SPECIAL 54. 258 (1857). Tyler.) 18 (1800). Kentucky: Wilson‟s Adm‟r v. Of Damages. The legal off cot of writings attached to the pleadings is for the Court. Binx v. Gulf C. 102 N. 102 Atl. 418 (1916). Massachusetts: Warner v. 290 (1913). 322 (1821). and the amount of that Damage must be specified. Sterenberg V. as the plaintiff cannot generally recover a greater amount than he has declared for and laid in the conclusion of his Declaration53 If a Verdict should be for a greater amount. the surplus must be remitted before Judgment entered. & J. v. Piatner‟s Ex‟rs. 105 (1819). no Damages were laid in Real Actions. v. 203 (1831). 4 Denio (N. and may be stated in a general manner.) 270 Fed. Bacon. natural.) 406. Lee. and must be set forth specially and circumstantially. When the object of an action is to recover damages. 178 (1015). Smith v. because it has been constantly decided by this Court to form no part of the Declaration. since the object of the suit was the recovery. North Carolina: Grist V. Keyser. a Declaration Is no part thereof. Beach. An Instrument attached to. judgment will be arrested) ° At Common Law. 54. Connecticut: Treat v. 2 TB. By. C. 79 III. Maryland: Harris v. though it may be less. S Gray (Mass. 810 (1887). that the amount of damages ascertained by them was assessed according to the proof. 242. North V. 42 South. 69 Am. 72 III.H. 2 Stew. is changed in Code Pleading. Mllligan v.Dec~ 254 (1847).C. which it cannot see with legal eyes. Bowens. Wailer v. 956 (1918). Webb. in Personal Actions. as the Jury may find a less sum. 219 Ill. expressly avers that the plaintiff has sustained Damages from a cause occurring subsequent to the Commencement of the Action.

1876). Massachusetts: Count Joannes v. Cases in Common Law Pleading. Co. 57. and it is sufficient to describe it in general terms. Sec. 194 (1868). „c. as in scire facias upon a Record. 410 (London. 625 (1863). 20 III. 380 (1841). and this rule has never been changed. H. Stun-art. blattingly v. Chi‟ cago.) 206 (1878). 192. 172. Whittier. New 54. The method of applying the rule is as applicable today as at any former time. as it arbitrarily controls the manner in which the claim for Damages must be stated.Dee. 171 Eng. Ranney. B. nnrl brain include atrophy of the optic nerve). 6 Pick.) 763 (1912) (gist of private action for public nuisance is special damage different in kind from that of general public). the distinction above noted being always observed. 78 III. as when words become actionable only by reason of the Special Damage ensuing. 525.Pieree v. 129 When the damage claimed is the necessary and proximate consequence of the act complained of.59 57. 2 Hill (N. See Hutebinson V. 361 (1871).Rep. 55 N. Illinois: Swain & Son v. 618 (1860). Kennedy. DAMAGES—GENERAL AND SPECIAL cs where thc Allegation of Damages is unnecessary.) 287 Sec. Burt. though its force in cases where damages are merely nominal seems rather doubtful. West Chicago St. 2 BIn. Woodward. v.H. the Law infers that aa injury resulted to him. 100 Mass. English: 49 N. without its being particularly alleged. Weston. 397 (1570). Statements to be Positive. See 59. 38 L. 23 III. Certainty in General. Jacksonville Electric Co. 44 South. This distinction is an important one. 97 N. 56. 184 (1858). I Starkie. 6 AlIen (Mass. & Q. and perhaps no better commentary upon the importance of a thorough understanding of those rules can be found. Gardner. Westwood v. HA. and not actionable in itself. 554 (1899) (general damages from injury to the back. Barry. Batehis. as the pleader will find to his cost if it be disregarded.Y. Thus. 22 Mich. when a person is slandered in his trade. or such as arise from an act indifferent. Granger. Massachusetts: Adams V. and no Damage could therefore have been sustained. The force and effect of the ancient rules of pleading in modern times is nowhere better illustrated than by this very rule as to damages and the manner of stating them. (Mass. as when some particular loss results from the utterance of slanderous words actionable in themselves. 54 (1810).) 236. Levy. called “Special Damages. 54 Fla. THE DECLARATION—GENERAL RULES AS TO MANNER OF PLEADINGL Page 141 of 736 . 47 Me. New I1ampsIi~re: Willey V. 10 Gray (Mass.~~ Such Damages are either super-added to General Damages arising from an act injurious in itself. 247. 60 III. Woodburn. 117 (1871). B.) 309 (1842). for the reason that the opposite party will not be unduly taken by surprise. 182 Ill.E. 436 (1816). Paul. Adams v.” be shown with particularity. York: Beach v. Woodwortb V. Cook v.) 301 (1858). and in a penal action. Kennedy.5‟ But. 419 (1859). Pennsylvania: Gordon v. which is merely an action to obtain Execution upon an ascertained right of Record. We have above seen that in every Personal or Mixed Action the Declaration should allege some damage. where the plaintiff‟s right to the penalty did not accrue until the bringing of the suit. 568 (1875). Cook. 252 III.E. at the suit of a common informer. 022. Darwin. Co. but injurious only in its consequences. Maine: Hunter v. when the plaintiff suffers some peculiar or unusual loss it is essential that the resulting Damage. 83 Am. Michigan: Gilbert v. When a Genera] Mode of Pleading is Proper. spine. Illinois: Miles v. CHAPTER 6 55. Cowne. 13 vt. and the establishment of Code Practice has made no difference.. 933 (1907). (N‟. the law presumes it to have resulted from that act.S. (Pa.

Battrel V. The matter of Claim or Defense must be stated in direct and positive terms. in order that it may be directly and distinctly traversed. When General Pleading is Sufficient. in order that the adversary may be able to raise an Issue admitting of decision upon his Denial or Traverse. 67. e. Consequences of Duplicity. A Treatise on the PrInciples of Pleading In Civil Actions. Division II. to wit. Pleadings to be True. Pleadings in the Alternative. 1). under a “whereas” or a “wherefore. What May Be Omitted—Matters Judicially Noticed. 234—263 (6th ed. Bohrer. Surplusage. 130 63. by Tyler. by his Attorney.. 34 W. 1897). II. “And thereupon the said A. 290 (1890). A Treatise on the Principles of Pleading. Ambiguity or Doubt. 232. Rules Applicable to Pleadings in General. London. 323—381 Produce Certainty or Particularity In the Issue. 1893).” etc. complains. Washington. I. Ohio River By. III. inducement or Aggravation. Albany. ~ IV. Spiker v. Odgers. An act should not therefore be stated by Way of Recital. Repugnancy. Of Pleading. 64. VIII. Principles of Pleading and Practice in Civil Actions in the High Court of Justice. that is. Gould. 66. 75. S. Matters Presumed. Common-Law Pleading: Its History and Principles. 73.B. Facts in Knowledge of Adversary. Co. Descriptive Averments. a Dcc(Boston. 1952). C. see: Treatises: Stephen..58. CERTAINTY IN GENERAL laration in Trespass for Assault and Battery make the Charge in the following Form of Expression. Of Rules Which Tend to 267—344 (3rd ed. Inducement. Page 142 of 736 . Of Rules Which Tend to Produce Certainty or Particularity in the Issue. 11 LilA. 69.. heretofore. for that whereas the said C. “made an assault. Conformance to Customary Forms. THE meaning and reason of this Rule would seem sufficiently apparent from its mere statement. Duplicity in General. 61. 70. 76. XII. Matters Implied. 1909). instead of “for that the said C. In general. Certainty 99—113 (14th ed. Its province is to restrict 1. B. the Parties to such Forms of Averment as directly assert the Facts upon which they rely.” etc..” etc. it is bad. 74.” but the Pleading should allege its commission directly and positively. What Particularity is Generally Required.D. 65. 59. The Major Requisites of Pleading. STATEMENTS TO BE POSITIVE 55. 72. for nothing . “made an assault.2 If. Matters in Anticipation. Acts Regulated by Statute. Pleadings must be positive in their Form and not by way of Recital.Va. for instance. by Sturge. 68. heretofore. 62. by Will. to wit. 12 8.. C. Pt. c.D. Of the Principal Rules of Pleading. 699. 71.. on the requirement of Certainty in Pleadings. Perry. e.” etc. 37 60.

namely: (1) 5. 153 Eng. 27. 683. and third. & W. 2456. Burton v. 377. 2 Ld. Dunstall -v. the Allegation must be positive. and produce single. In Common-Law Pleading. 81 5.Bep. St. Chapman. it may now generally be remedied by Amendment. 520. 87 Vt. Wilder v. & W 36. 94.Va. Edmunds. 358 (1821). Thurlow. 470.Rep. Definiteness and Precision. 81 SE. aCS. in order that due notice may be given to the Adverse Party. Statements to be Positive. 8. 1077 (1614). West Virginia: Gould v. Peabody Ins. it creates a Defect in Form.Rayin. the Form and Manner of Statement. 536. 100. THE Concept of Certainty in Pleading includes both particularity and precision. second. 491 (3rd ed. 1778). Sherland v.3 and. by what Kind of Pleading to be Stated. 80 Eng.‟ there are three Degrees of Certainty. Dunstall. Dobbs v. 771. 287.. 418 (1725).Y. 475 (1916). Strange 1162. 93 Eng. Sheppard v. The classic division proclaimed by Lord Coke. and complete Statement of the Facts which constitute the plaintiff‟s Cause of Action or the defendant‟s Ground of Defense must be made in all Pleadings. CERTAINTY IN GENERALS 56. the Facts W.Eep. English: Eng. 89 Engatep. 1094 (1740). 536. Healton. Cf.Div. Thu rlow.Bep. does not convey any intelligible idea of the distinctions recognized by the law. Greene. though the gist of the action. The Rules of Pleading may be considered under three main heads: First. Fletcher.Va. 2 Mass. Where. Brown v.Es~ington. 571 (1877). Ritrwoller v. and where no other method was possible.Itep.E. whatever is alleged in Plead-Mg must be alleged with Certainty. 206. 93 Eng. 214. Hansford. 2 Ldilavm. A clear. General Allegations were permitted. Marshall v.Rep. Riggs.153 Eng. ~ 294. 575 (1892). 16 Mees. Ballard v. Page 143 of 736 . And in Assumpsit. Connecticut: Phelps v. Bertie v. General Rules as to the Manner of Pleading. 74 WNa. Pickering. Coal & Coke. 258. Gould v. Under Coke‟s Classification.. Wiatt v.Bep. Bacon. Massachusetts: (1914). 949 (1684). It.Bep.Rep. Rep. 521) English: Hore v. 419 (1725). XIX. 74 W. however.6 The varying amount of particularity required has given rise to attempts to define the different Degrees of Certainty. 2 Show. ~ Shipman. Chapman. Originally. e. 92 Eng. such 4 a Defect was regarded as one in Substance. 10 W. 16 SE.S. clear-cut. the Facts lay within the knowledge of the defendant.” B 4 (London. 529 (1914). 515 (1913). As such an Allegation violates a Rule of Pleading. necessary to be Stated. 2 Salk. the promise Is usually stated by Way of Recitsi. 2 But Matter of Inducement may be so alleged. 88 A. 1411. Lurie. Abr. Handy. 2 Bulst. Brown v. Coffin. 16 Mees. Handbook of Common-Law Pleading. 36. distinct. Sherwin. however. Co. 162 N. 1413. 2 Lev. An Allegation that the plaintiff “claimed” that the organizer of the corporation made a present of the stock to one of the subscribers is not an Allegation of Fact. 92 0. 8. 91 Eng. not on information and belief. 27 Am. which is fatal only on Special Demurrer. 636. 98 Eng. „Pleas. 21 W. note 1. 4 Burr. Weltenhall v. State ex rd. 2 Strange 1151. loss. 91 Eng. 83 Eng. Supra. 89 Eng. Ilore v. well-defined Issues of Fact or of Law for decision. Coal & Coke B. 2 Show. It consists in alleging the Facts necessary so distinctly and explicitly as to show the legal basis of the Right or Defense asserted. In general. Coffin v. 2 Salk. 1088 (1846).Rep. Gourney v. further than this. Co. 295. 176 App. and that a Definite and Certain Issue may be produced for positively affirmed. 3.Bep. Co.Va. 1101 (1741).Va.Rep. give notice to the Adverse Party of what he is called upon to answer.

and means what. 5 Conn.Bep. 126 Eng. In his Principles of Pleading and Practice in Civil Actions in the High Court of Justice. Royalton & W. Becker. 9 Johns. 363 (1807). Southwick.Va. 1923). Payne.‟° which do not appear except by inference or argument. 2 fl. by Odgers. and (3) Certainty to a Certain Intent in Every Particular. 158. Illinois: Morehouse v. (2) Certainty to a Certain Intent in General. as well as the highest attainable accuracy and precision. t Dovastoa v. 1300 (1777). 9. Fuller 12. without referring to possible facts. The King v. inference or presumption. 1 Doug. may be called Certain.Rep. c. 4 Standard Eney.Y. 103 (1779).Cas. Payne. 311 (1842). 99 Eng. 22 Me. 423 (1824).‟2 Replications and Indictments (in 3 the charge or accusation). Zi King v. 14 (1887).Proc. English: Dovaston v. 160 (1842). Turnpike Co. and such Other Pleadings on the part of the defendant as go to the action. 2 Mass.Itep. This is the lowest Form of Certainty which CERTAINTY to a Certain Intent in General is a higher degree than Certainty to a Common Intent. CoffIn v. states the Rule as follows: “The amount of detail necessary to ensure precision naturally varies with the nature of each ease * * There must be particularity sufficient to apprise the Court and the other Party of the exact nature of the question to be tried. 99 Eng. Mayor & Burgesses of Lyme Regis. 1912). Spencer v. (N. 072. Rep. 158. v. 3 SE. 69 Ill. Mosely. 302 131 132 (1790). 302 (1790). leaving nothing to be supplied by argument. but must add to them such Facts as will anticipate the case of his Adversary..Sill. Mayor & Burgesses of Lyme RegIs. 2 RB:. it may be remarked that this is a matter of relative particularity which does not admit of measurement. 1 Doug. MaIne: „Washburn v. DECLARATION—MANNER OF PLEADJNG The First Degree of Certainty in Coke‟ s Thininflation the Rules or Pleading allow. 103 (1779).° A PLEADING is Certain to a Common Intent when it is clear enough according to reasonable intendment or construction. 50 (1896). 12 Mass.App. though not worded with absolute precision. Odgers.‟4 The Pleader must not only state the Facts of his own case in the most precise way. 2 H. 10. 14 Vt. and In Returns to Writs of Mandamus. VIII.Y. Payne. 126 Eng. 98 Eng. (N. 302 (1790). West Virginia: White v. This Degree of Certainty is required only in case of Dilatory Pleas and Pleas in Estoppel.8 Common Intent cannot add to a sentence words which have been omitted. Romans.BI. Home.” and is what is required in Declarations.) 817. 56 Paul. 29 W.1° Modern cases take as the standard reasonable Certainty without an attempt to define the Degrees for particular Pleadings.” Excessive Certainty Page 144 of 736 .) 315 (1804).‟5 With respect to Coke‟s tests or Degrees of Certainty. 835 (1902). Shed. The Third Degree of Certainty—to a Certain Intent in Every Particular CERTAINTY to a Certain Intent in Every Particular requires the utmost fullness and particularity of statement. Massachusetts: Oystead v. Cowp. 2 Johns. Andrews V.) 339 (1501‟). and is sufficient only in Pleas in Bar. 57.Rep. London.‟ S. 118 (7th €d. The Second Degree of Certainty v. Fowler.Bl. 509 (1815). and not one of addition. CoffIn. Dovaston 11. Vennont: Town of Boyalton v. Rejoinders. 526. 126 Eng. 526. Town of Hampton. 1 Day. Cli. See Hiidreth v. the Rule being one of construction only. (Conn. 520.Itep. 6 Certainty to a Common Intent. English: Rex v. upon a fair and reasonable construction.” Sec. and no supposable answer wanting.

) 1106 (1910). New Jersey Title Guarantee & „tnst Co. c. 167.Proc. for this Issue would be too wide and uncertain. 2 H. because it did not show how the letters patent became void. a General Plea of Performance is Pleaded. IN Pleading the Performance of a Condition or Covenant. 13 East. Parkersburgs. 1 Doug. the Covenants have been broken. 275. 70 N. 2 ll. KIng v. On Pleading.Rep.Rep. Thus. that in Certain Disfavored Dilatory Pleas.. such as In Modern Times. 580 (1892). Co. 1808). 56. Walker. 16 SE. 920 (1899). it comes down to little more than this. more Facts must be alleged to make out a prima facie case or to repel hostile construction than in ordinary cases. David‟s AUnt..S. 06 Ala. 55 (Portsmouth. 71 W. 1808). 52 So. Weller & Co. Standsrd Ency. 24. ° In an Action of Debt on a Bond conditioned to pay so much money yearly while certain letters patent were in force. etc. 526. 107.R. But he must Assign a Breach. v. 101 Eng. 75 Ill. 107. Camp. The highest degree of certainty Is required only in Fleas winch do not go to the merits of the Action and are therefore not favorably regarded. c. Harvey „cc Parkersburg Ins.J. Coughlln v. Co. on Demurrer to the Replication. but must show specially the Time. especially if too great prolixity would result therefrom. 56 A. 16. 276 (1897). yet he must show in this special way the Performance of each. David v. namely. Strauss. Lawes~ On Pleading. Actions. such as Actions for Defamation. if the defendant Pleads Generally (as in that case he may) that he Performed the Covenants according to the Condition. 126 Eng. 99 Eng. & I. Dilatory Pleas. The plaintiff having Replied. 307 (1810) Dovaston v. 158. Lawcs. and in 1 what manner.Va. requiring Performance to be specially shown.A. 837 (1912).App. and in Certain Disfavored Defenses.Va. in an Action of Debt on a Bond conditioned for Performance of Affirmative and Absolute Covenants contained in a certain indenture. 1326 (1799). 15. III.L. See. (1790). the defendant Pleaded that from such a time to such a time he did pay. 4 17. v. however. III.Rep. Of the General Rules Applicable to the General Divisions of Pleading.. 37 W. 302 14. National Parlor Furniture Co. 104 Eng.(N. Dovaston v. 76 A. 929. 836. the plaintiff cannot in his Replication Tender Issue with a mere Traverse of the words of the Plea. 31. that the defendant did not Perform any of the Covenants. 152 (1903) in which It was held that circumstantial details were not necessary. Rep. Blumenthal (0. 25 L. By. 843 (i912~ Taylor v. Place. 56 is not required. though open to exceptions that will be presently noticed. 272. 1 Boyce (Del.. and. 169 Ala. and Pleas in Estoppel.) 580. Mayor & Burgesses of Lyme Regis. Of the General Rules Applicable to the General Divisions of PleadIng. When in any of these excepted cases. unless the Law is hostile to the Action or Defense. 126 Eng. 475 (1910). that the Plea was bad.Bl. and that then the letters patent became void and of no force. llcation in what way the Covenant or Condition has been broken.Itep. also. 76 Sec. 147 (1872). 8 Term. Bell. Campbell v.0. and Manner of Performance. for otherwise no sufficiently certain Issue would be attained.Bi.‟5 Yet this Rule. it is a Rule.20 Illwstrat ions Page 145 of 736 . Rains v. which must anticipate possible Replies. it was adjudged. viz. 134 (portsmouth.) 90 Fed. Casseres v. 54. Payne. that the Party must not Plead Generally that he performed the Covenant or Condition. showing specifically in what particular.. 526.Rep. the Rule under discussion still requires the plaintiff to show Particularly in his RepSE.Whitehend. even though the subject to be performed should consist of several different acts. 103 (1779).453. 302 (1790). Payne. admits of relaxation where the subject comprehends such multiplicity of matter as would lead to great prolixity. 139. and a More General Mode of Allegation is in such cases allowable.

739 (1814). Braben v. Montague. 215. 1 Bulst. & M. by his inability to prove it as alleged. 105 Eng. Lord Arlington v.Jac. State the Breach with Partleulan It)‟ and Coneludo with a Verification. 128 Eng.Raym. 219 (1615). Cro. Rep. 136. 311. Merricke. „Pleader. 97 Eng. & 5. 26 (1614). And a Statement of Material Facts in a Pleading with unnecessary particularity. and rests upon the same principle.” F. 70 En~Rep. 458 (1858). does not. Brown v. Austin v. since. C. 21~ Coryton v. Jervoyse. 5. 2 N. where a brief and Concise Allegation would be sufficient. 2 Burr. 78 Eng. Preston. Rep. 1458 (1800). 429. 133 134 Eng. 363.Rep. and not Evidence. in general.KB. Of Replications. I Saunders 116. 226 (1615). 78 Eng. See also. 1 Show. 411. 2 Saund. 80 Eng. 916. 101 Eng. 1 Term.H. on a promise by the defendant to pay for all such necessaries as his friend should be provided with Page 146 of 736 . and that the relaxation from the ordinary Rule on this subject which is allowed with respect to Place.Rep. 3 Bulst. Halsey v.B. 98 Eng. but may subject the Party thus Pleading to the penalty of a Variance.Bep. Croiac. Comyn‟s Digest. Noldrlp. 2 Vent. New York: Hughes v. 99 Eng. 1137 (1602). 156. Besides the benefit derived from thus confining the Pleadings to reasonable limits. 555 (1759). 386. and may be considered as applicable whenever an Allegation of the Facts in detail would carry the Pleading to an unreasonable length by Stating matters proper to be shown in Evidence. 83 Eng.Eep.It. Braban v. ed. Webb. 407. and Value. Bliss. Savery. 503. 422 (1814).21 and by considering the limitations which it necessarily receives from the Rules as to Certainty heretofore mentioned. Sayre „cc Minns. Smith.” v. Austen v. On Pleading. Skin. J‟Anson v. Bands. Cro. Co. 1065 E. Bob. (N. 15 4B. he must do so correctly. not only tends to cause prolixity and confusion. 5 Taunt.Bep. when brought into Issue. 8 T. In Assumpsit. is required to be proved. “Pleader.Rep. Comyn‟s Digest. that the Plomer V. Fitzpatrick v. 753. It substantially covers the same ground.Bejx 580 (1691). Rep. With respect to all points on which Cer tainty of Allegation is required. 303. 747 (1610). 2 Saund. Notes 3 & 4. A General Mode of Pleading is allowed when great prolixity is thereby avoided. Bacon. 79 Eng. 1137 (1602). 26 (London. Lithebyc. Cro. T. Friar „cc Grey. as the Rule that a Pleading must State Facts. I Chitty. Stuart. 36 N. Cornwahis v.Rep. lloss. (1666). on Repli~ cation In Actions on bonds. 1882). 359. 81 Eng. VIII. 31. 83 Eng. Ibid. 79 i822). Bacon. Southern. Stone v. Cryps v. 5 Johns.Rep. English: Jermy & Jenny.Rep. 6 DECLARATION—MANNER OF PLEADING WHEN A GENERAL MODE OF PLEADING IS PROPER 57. 80 EngRep. Woodcock v. WHILE the form in which the Rule above is stated has been objected to as indefinite. B. Bob. Cowp. Dalby. 14 (1822). as laid. Cole. if he attempts to state all such matters. generally speaking.Allegation. its extent arid application may be collected with some degree of precision from the decided cases. Barton v. Cro. 916. Léneret v. 1311 (16th Am. 1. 4 (1060).Ellz. 1 Sid. 80 Eng. 891. it may be remarked. 365. 89 Eng. Note 1. I Show.Rep.Rep. 90 Eng. Cervas. 82 Eng. in substance. 290.Y. Codner v.. Quantity.Eliz.Rep. New Hampshire: Smith „cc Boston. 80 Eng. Ontler v. 89 Eng. by PerkIns. or his Proof will not correspond. 1248 (1777). 69. 307. 459. 772. 110 b. 43. Rivet.Itep. Hill v. Carpenter. 303. which deny the Effect of Performance. Ch. 77.Rep. extend to other particulai~.Rep. 418.Jne. 1359 (1787). c. 577.) 173 (1809). a General Mode of stating the existence of Facts involving in themselves matters of detail may often preserve the Pleader from exposing his Allegation to the danger of a Variance. Time.Rep. LewIs CERTAINTY IN GENERAL 10. 20. Robinson. 10. I Lev. 25. 378. Baynton. Wlmbleton v.

. in Debt on a Bond. but it was adjudged that the Replication.ROp. in all events. “This is good. Bonds may be conditioned either for the Performance of certain matters set forth in the Condition. Carth. 82 Eng. that the Declaration was not good. Brownswlck. the plaintiff declares upon the Bond as single. No greater Particularity is required than the nature of the thing Pleaded will conveniently admit. the plaintiff alleged that he provided necessaries amounting to such a sum.” the payment should have been Pleaded Specially. the Law often allows him to do so. and give account of it. without setting forth the manner of Performance. if the condition had been to pay the moiety of such money as he should receive. In either case. or to do more than allege Performance in General Terms. though generally. in General Terms.” And the Court gave Judgment unanimously for the plaintiff. is good. less Certainty is required. though material to a Party‟s case. yet if they cannot. weight. and Pleading in General terms is sufficient. a Party may allege the grounds of his Action Z8. or in what manner. or measure. Huggins v. Cryps v. the medicines were necessary. in Assumpsit for labor and medicines. C. WHAT PARTICULARITY IS GENERALLY REQUIRED ~9. in an Action for injury to goods.. On Demurrer to the Replication. and not set forth in the Condition. the defendant Pleaded Infancy. a Declaration not showing the quantity of peas has been held sufficient. because he had not shown what necessaries in particular he had provided. with beasts. 3. under the circumstances of the case. 59 WHAT PARTICULARITY IS REQUIRED WHEN GENERAL PLEADING IS SUFFICIENT 135 A General Mode of Pleading is often sufficient when the Allegations on the other side must reduce the matter to Certainty. And when the Nature of the Defense to be inter posed is such that the Opposing Party must necessarily state fully all Facts essential to the production of a complete Issue in the particular action. 2 without saying “from time to time. Wiseman. and Doddridge. and eating his peas. It follows. lead to a sufficient Certainty of Issue. conditioned that the defendant shall pay. or seine of them. the plaintiff will have to show a Breach in his Replication. for avoiding such multiplicities of reckonings” . 90 Eng. of course. Baynton. the quantity of the goods must be stated. lit per curiam: “This Plea of Payment is good. in Trespass for breaking the plaintiff‟s close. 23. such Certainty will not be required. and therefore without alleging any Breach of the Condition. 22. be conveniently ascertained by number. 3 Bulst.Re~). 25 Thus. Sec. therefore. if the defendant has to Plead Performance of such matters. he cannot be presumed to know. Church v. J. 334. in General Terms. 668. from time to time. and as this will. “This General Allegation. 26 (1614). And when the Circumstances Constituting a Cause of Action are so numerous and so minute that the Party pleading is not and cannot be acquainted with them. the moiety of all such money as he shall receive. according to the words of the Condition. and that in order to avoid stuffing the Rolls with Multiplicity of Matter. or Defense. 81 Eng. 110. But Coke. without showing in particular what they were. that he had provided him with all the plaintiff. 24. was good. 1 SkI. “because nobody can measure the peas that beasts can Page 147 of 736 . or of the Covenants or other matters contained in an indenture or other instrument collateral to the Bond. 31. 1140 (1667). etc.23 So. 22 So. and the plaintiff had Judgment. THE effect of this Rule is that the Certainty required in Pleading Facts does not require a minute and detailed Statement of Circumstances which. It was moved. it was objected that the plaintiff had not assigned in certain. as is here Pleaded. said. leaving the plaintiff in his Replication to Specify the Breach that is supposed to have been committed. in Arrest of Judgment. without showing the particular sums. it becomes unnecessary for the defendant to be Specific on his Part in his Plea. Accordingly. The plaintiff Replied that the Action was brought for necessaries gen erally. without noticing the Condition. For by the usual course of Pleading. how. in this General Form. THIS Rule comes into most frequent illustration in Pleading Performance in Actions of Debt on Bond. for curing the defendant of a distemper.Bep. he Pleaded Generally that he had paid the moiety of all such money. that if the defendant Pleads Performance.” Also they agreed that.

and the most complicated cases may be tried on a bare Claim of Indebtedness. 75 Eng. 274 (1800). Reed. by which it might appear to the Court that the defendant had not full power and lawful authority to Louis. 4 Cal. Smith. or interest in the Code Remedies. Less Particularity is required when the Facts lie more in the knowledge of the Adverse Party than of the Party THIS Rule is exemplified in the case of alleging Title in an Adversary. (N. Boston. 26. 3 Bing. 5 (London. by Boglc. See. 1887).Y. 112.L. 61. Rep. 130. Elliott v. 3 TB. Bacon. and added that. 1887).Rep. I Plow. 847 (1790).Rcp. Wirnbish V. if the case is one where it is held necessary to Declare Specially on the Contract. ~ 309 (2d ed. This nile is also one of general application. Section Third. Dun~ lap. B. 1728).” ~° So. among divers other goods. but the objection was disallowed by the Co. per quod the plaintiff.2 7 Strictness and In Actions on Contracts. Sufficiency of the Common Counts. according to the form and effect of the said indenture. ornatus pro equis aSs-it. 130 Eng. 80. Gob. 77 Eng. Pleading. according to the form and effect of the said indenture. estate. it was objected that this was Uncertain. 100 Eng. “Pleas. . it was Assigned for Error that he had not in his Declaration shown “what person had right.) 437 (1916). Tailbois.” etc. 1708). Bacon. 75 Eng. Dowson. v. 85. 3. Rider v. whitehead.. See Bliss.Rep. St. 136 Ch. 54. 482. demised to him certain premises. 409 (London. which are generally applicable wherever money is due for value received. the plaintiff Declared that the defendant. 91 Eng.Rep. The Law of Pleading Under the Codes of civil Pro. S lands demised. 1308 (1799). Stephenson. if he had mentioned only diversa bona. 104 Eng. „Picas. People v. and then the plaintiff assigned a Breach. 766. S (London. B.Rcp. Rep. Hartley v. DECLARATION—MANNER OF PLEADING 60. 20. in an Actionof Covenant. 2S. 1798). to avoid prolixity. Page 148 of 736 . § 310 (2d ed. The Law ot Pleading Under the Codes of Civil Procedure.Rep. And in this case Windham. After Verdict for the plaintiff. 118. Gale v. said that. 1 Salk 355. after Verdict for the plaintiff. Bradshaw‟s Case. Buckley v. that the Defendant had not full power and lawful authority to demise the said premises. Hardy. Denham v.Rep. The above Rule is one of necessity. In an Action on the Case for setting a house on fire. 182. 103 Eng. with a Covenant that he (the defendant) had full power and lawful authority to demise the same. Thomas. 1 Plow. 108 Eng. 13 Johns. Herring.cedure. title. great 25. 5 Barn. 101 Eng. See Bliss. where a more General Statement is allowed than when it is set up in the Party himselt 2° So. 27.Rep.Rev. 1904).Ilep. Andrews v. 823 (1612). “Pleas. The General Principles of Pleading. 310 (1810). 436 (1825). 6 Particularity are enforced. 352 (1916). 130. 1 Plow. Abr.~ FACTS IN KNOWLEDGE OF ADVERSARY Pleading. the Law will sometimes allow such a Declaration. SO. Pomeroy. S P.R. no particulars or Facts are required. Mr. as a man cannot be supposed to know the Certainty of his goods when his house is burnt. but if the case admits of the use of General Assumpsit or the Common Counts.” etc. yet it had been well enough. by indenture. & C. Mr. Mereeron East. 533—535 (4th ed. Boston. Baeon. Partridge v. and the simplest case involves imminent danger of Variance. also. 310.” etc. Strange. 13 East. apvlicable to all Pleadings. 180 (1826). 75 Eng.

137 inducement and Gravamen WHENEVER a bare statement of the Facts constituting the Cause of Action does not show the Right of Action with sufficient Certainty. S East. Seaboard Air Line Railway Co. 170 N. a General Mode of Stating them is sufficient. the defendant promised to pay £100. Hall. yet an exception is allowed if the title be alleged by Way of Inducement only. 624. he had given and granted to him. or set forth only to increase the Damages asked for. therefore.Rep. it was resolved that the Assignment of the Breach of Covenant was good. and either.” But.” and gave Judgment accordingly. as they require no distinct Answer. nor in what manner nor by what acts he carried on the said business of a rope maker. 274 (1806). is the Statement of Matter which is Introductory to the Principal Subject of the Declaration or Plea and which is necessary to elucidate or explain it. in an Action of Covenant.3‟ INDUCEMENT OR AGGRAVATION Statement of Matter of Inducement or Aggravation than In the Main Allegations. Less Particularity is necessary in the Sec. the defendant Demurred Specially. for he had followed the words of the Covenant negatively. 32. 77 Eng. It does not enter into the statement of the Cause of Action proper. by deed. 86 So. but is merely explanatory of such statement. 32 The term “Inducement” is sometimes applied to those Allegations showing the existence of a Right on the part of the plaintiff and a Duty on the part of defendant. the defendant carried on the business of a rope maker. “upon conference and debate amongst the Justices. McDonald v. for instance. in Actions for forcible injuries.. “Inducement. This preliminary statement is called the “Inducement”. nor any and what particular quantities or kinds of cordage the defendant did so make for them. except under Contracts for Government. As “Matter of Inducement. is that which is merely introductory to or explanatory of the essential ground of the Complaint or Defense. 431. after the making of the indenture. there was no occasion to state them with more particularity. INDUCEMENT OR AGGRAVATION alleged merely by way of explanation or introduction to the Claim or Defense. As matters 30. 823. than of the plaintiff‟s. as is alleged in the said Breach of Covenant. where. the Facts necessary to explain them must be shown. SO Flu. Varnes v. 80. on the ground that the plaintiff “had not disclosed any and what particular person or persons for whom the defendant made cordage.W. and. and “Matter of Aggravation” such as is alleged only to show. Assigned for Breach that. 61. where the defendant had covenanted that he would not carry on the business of a rope maker.” 30 So. Reed. neither constitutes a Material Fact essential to Recovery or Defense. who is a stranger to it.demise. the next avoidance of a certain Church. other than by virtue of any Contract for Government.” as the term is generally used. but the Declaration did not set forth any Time or Place at which such grant was made. in Assumpsit. Upon this being objected in Arrest of Page 149 of 736 . 61 Bradsbaw‟s Cass. as the Facts alleged in these Breaches lie more properly in the knowledge of the defendant. Gob. So.” But the Court held “that. though it is a General Rule that thc Commencement of a Particular Estate must be shown.. Gale v.33 This Rule is exemplified in the case of the Derivation of Title. and the plaintiff. the plaintiff declared that in consideration that.” In Pleading. 68 (1918). 103 Eng. is sufficiently met by an Answer to that which forms the Gist of the Action. and therefore require no Distinct Answer.Rep. or make cordage for any person. who must be presumed conusant of his own dealings. etc. 31. and it does not require the same Certainty. and made cordage for divers and very many persons. 433 (1920). they may be alleged in General Terms. are not of the Gist of the Action. 203 Mich. at the defendant‟s request. 9 Co. circumstances of enormity under which the wrong complained of was committed. The Allegations showing the wrongful acts of the defendant in violation of the Right and Duty are known as the Gist or Gravamen of the Action. The “Inducement” of a Pleading is but an Explanatory Introduction to the Main Allegation In which the Cause of Action Is alleged. and it lies more properly in the knowledge of the lessor what estate he himself has in the land which he demises than the lessee. (1612).

which was good by paro]. showing it to have been in writing3~ So. Syt well. 303a (Philadelphia. without 35. Bishop v. 519.Rep. it was held sufficient. 583 (1878). Chamberlain 31. 20 Coke 5Db. Chnmherlatn v. 12 Mod. 292. 95 Eng. to state a demise for any number of years. 283. need not allege it to be in Writing. and cabinets was not specified. cupboards. 34 So. 78 Eng. 281. 91 Eng. hut regulated as to the Mode of Performance. and required to be in writing. shall have only the effect of leases at will. 13. v. Riggs v. or Miscarriage of another person. Michigan: Harris Photographic Supply Co. but by the Statute of Frauds. 130 Rng. Bellamy. Builingham. need not be particularly specified. 3Iaryland: Ecker V. 32 N. a Statute does not. 1014. and. 95 EngRep. Salisbury‟s Osse. a Party Pleading a Contract. Code Pleading. 292. XV. etc. Digest “Pleader. S Wils. chests.Eliz. by the Statute of Frauds. 88 Eng. 36 Am. Webb. 1543. it is sufficient to use such Certainty of Allegation as was sufficient before the Statute. Alsope v. Cro. but matters only thrown in to Aggravate the Damages. 1005 (1601).Judgment after Verdict the Court resolved that “it was but an Inducement to the Action. all leases and terms for years made by parol. 597.Rep.” C. Fisher. 144 Ill. Greenfield. 715. . 1793). Co.35 ACTS REGULATED BY STATUTE Ch. the Declaration on such promise need not allege a written Contract. 6 Bing. 43 (Dublin. is not valid unless the agreement. except leases not exceeding the term of three years from the making.}tep.Rep. c. 18. 715. it may still be Pleaded as at Common Law without alleging writing. Valid by Parol at Common Law. at Common Law. Clcrkson. or caused to be wrenched and forced open. on that ground. Yet. be in writing. 2 Salk. 179d)~ 139 DECLARATION—MANNER OF PLEADiNG was the Whole Court.Eliz. 473 (1892). chests. Rob. Buningham. and cabinets of the said plaintiff.Rep. drawers. 165. 529. Default. 641. an act Valid at Common Law is subsequently required by a Statute to be in writing. Woolaston V. in Trespass. Thus. and therefore needed not to be so precisely alleged. the plaintiff declared that the defendant broke and entered his dwelling house. therefore. that “where a thing is originally made by Act of Parliament. 1812). cupboards. by Statute.Bep. or their agents authorized by writing. THE only explanation necessary to be made of this Rule is that. namely. necessarily prescribe a corresponding method of Pleading it. 12 Mod. and “wrenched and forced open. as where a lease for a longer term than three years is required to be in writing by the Statute of Frauds. a lease for any number of years might be made by parol only. 88 Eng. but. by the Common Law. in the ease of a Promise to Answer for the Debt. 1385 (1830). drawers. 45 NW. 78 Eng.Rep.St. Anonymous. 1061 (1772). Paul. but where an act makes writing necessary to a matter where it was not so at the Common Law. Birch v. in a Declaration of Debt for rent on a demise. it must be Pleaded with all the circumstances required by the act. 6 CL With respect to Acts Valid at Common Law.” And of that opinion 33. the clpset doors. Cro.38 Thus. as it was at Common Law. But ft was answered “that the breaking and entering the plaintiff‟s house was the principal ground and foundation of the present action. 45 Md. Comyn. Rep. as matters are to be Pleaded according to their Legal Effect. Ilolden. though it Page 150 of 736 . v. 540. 34. 278 (1876). Tel. 442. 1061 (1772).Litt. Greenfield. St. Belshaw. English: v.Rep.” and gave Judgment for the plaintiff. 136. and signed by the party. 77 Eng. it is not necessary to Plead the thing to be in writing. 283 (Dublin. Continued § 312 (3d ed.E. unless the thing to be pleaded is one created by the Statute itself. ISb.Rcp. Illinois Speyer v. and not put into writing and signed by the lessors. 123 Mass. Desjardins. and Judgment was given for the plaintiff. in regulating the Mode of Performance of an Act. 681 (1800). as in the case of a will of lands. or some memorandum or note thereof. Doct. 80 Eng. SI 1~f1cb. but which a subsequent Statute requires to be in Writing. 3 Wils. Chalie v. and all the rest are not foundations of the action. Witheren Riggs v. 80 Eng. If. Massachusetts: Mullaly v. Bohn.38 On this subject the following difference is to be remarked. Bliss.” Upon Special Demurrer it was objected that the number of closet doors. 1894).Re~ 949 (1595).Plae. it must be alleged to have been made in writing. 1504. Of the Statement.

for this the Judges are bound to know. was to accept the said 3.” ~ As to the Rule under consideration. by-law. showing the intention to being the case within it. that. “and though. . or else the plaintiff could have no remedy thereon. note 2.” ~° WhAT MAY BE OMITTED—MATTERS JUDICIALLY NOTICED 63. when the defendant Pleads such an Agreement in Bar. as 47 those of other States. for necessaries provided for the defendant‟s wife. 235 (1803). uniess given by some charter. 220. by which the plaintiff. Mayo. and it is said that though. 450. Upon Demurrer. admitting the agreement to be valid. to a select part only. Mayor & Burgesses of Lyme RegIs.Rep. upon the agreement Pleaded. Public Domestic Statutes and the Facts which they recite or state must be Noticed by the Courts of the Particular State. B. B. must also be Pleaded. see Comyn‟s Digest. in Evidence. 85 Eng. etc. 63 139 plaintiff accepted the said 3. It may be observed. however. 1 Saunders 276d. Thus. Thus. Pleader. upon such an agreement. and can apply for themselves to the Facts aileged.Raym. the defendant‟s son. in an Action of Assumpsit on a Bill of Exchange. by the corporate body at large. 1 Saunders 276. entered into a certain agreement. and not give her another. 1 Doug. 85 Eng. Judgment was given for the plaintiff. Duppa 3& 1 v. 91 Eng. it ought to be In writing. 78 (1822). KIng the same reason and the same Rule. where a penalty is inflicted. for two reasons: First. are not Judicially Noticed. 342 (1669).” C. To v. 85 Eng. without their being Stated in Pleadings. in the former.Bep. 30. 99 Eng. secoiully. that. however. Mayo. B. 2 Salk. yet. the Form of the Declaration is to state that the Page 151 of 736 v. and therefore such parts of them as may be material to the Action or Defense. as well as the Public Acts of Congress. 519. to be paid when he should receive his pay as a lieutenant.42 The Rule is not limited to the principles of the Common Law. ~ and it is only necessary to allege Facts which will appear to the Court to be affected by the Statute.Bvp. a distinction has been taken between a Declaration and a Plea. the plaintiff need not set forth the agreement to be in writing. as her Debtor for £9. Rep. must be Stated in Pleading. note 1. in discharge of the Debt mentioned in the Declaration. or other authority. Duppa v.4° and Foreign Statutes. T. 07 (1779).Rep. 276€. because that was a power by Law incident to them. by the Statute of Frauds. Thus it is not necessary to state in the Pleading Matters of which the Court MATFERS JUDICIALLY NOTICED will take Judicial Notice. 337 (1669). it was held unnecessary to Aver that the power of removal was vested in such corporate body. the plaintiff need not show the thing to be in writing. 148. Thus. in an Action of Indebtitatus Assumpsit. because it did not appear that there was any consideration for the agreement. yet. yet there is sometimes occasion to make mention of it.Rep. 42. however. for he shall not take away the plaintiff‟s present Action.44 though in case of an offense created by Statute. Matters Judicially Noticed may be either of Law or Facts of a Public or General Nature. Anonypious. Case IL. where it was Stated in a Pleading that an officer of a corporation was removed for misconduct. for her Debtor. 442 (1701). in the latter the defendant must.45 Private Acts. this effect. the mere Statement of the Facts constituting the offense will be in~ sufficient without an express reference to the Statute. Public Statutes fall within 4°.4‟ It is therefore unnecessary to state Matter of Law.. Sec. though it is in general unnecessary to allege Matter of Law. for the convenience or intelligibility of the Statement of Fact. Barber. the defendant Pleaded that before the Action was brought the plaintiff and defendant and one J. CERTAIN matters may be omitted. he must Plead it so as it may appear to the Court that an Action wilt tie upon it. and that the 3~. It is not necessary to state matters of which the Court takes Judicial Notice. Saunders 211. note 2.must be proved to be so. 83 Eng.

as well as of the territories. Wells V. 46. Besides Points of Law. every possible Answer.R. by no means pre vents the attainment of the requisite Certainty of Issue.Bep. 97. and its usual course of proceeding. as it is generally expressed.M This.. iggulden. 99 Eng. note 12. also. & C. legal weights and measures. ac Page 152 of 736 . Miller v. as drawer or acceptor. 43. have taken notice of a]l the laws of all the Stntes of the Union. Commentaries on the Law of England. the Time of its Sessions. Smith (N. in consideration thereof promised to pay. for the purpose of Pleading. 6 This Rule.Rep. alternately. 1152 (1698). matters of public history. and therefore nothing more is necessary than for each Party to state. his case in point of Fact. unnecessary to make Allegation in Pleading. and that the defendant. however. as. to show that the case is intended to be brought within the Statute. 47. and terms of art. Boyce v. became liable to pay. or. v. State. dare v. \Vhitaker. as we have heretofore shown. and being so liable. etc. the course of the almanac.Rep. See Owings V. for ex facto jus oritur. Wbitaker.) 807. and there is no need to set the Statute forth. when reference is made to the Declaration only. 1 Doug. 99 EngRep. 67 (1779). he adequately sup~ ports his Charge or Answer. if such Pleading establish a prima facie case in his favor.Bill was drawn or accepted by the defendant. such as matters antecedently alleged in the same Record. according to the nature of the case. TIlE ordinary Form of this Rule. 99 Eng.4° MATTERS IN ANTICIPATION 64.) 234 (1858). that it is not necessary to State Matters which would come more properly from the other side. 9 Pet (U. The meaning is that it is not necessary to anticipate the answer of the adversary. 67 (1779). the division of the state into Counties. or the State Legislature. Federal Courts. it is sometimes necessary to refer to a Public Statute in General Terms. Bull. must at length arise. and the ordinary moasurement of time. the Issue of Law. 1 Blaekstone. 9 LEd.) 178 (1833). 4 ED. note i2. So. See. I T. 44. 246 (1835). 97. 1 Ld.S. Spieres 45. for. of which the Court takes Official Notice. 186. 1021 (1786). the meaning of English words.. and upon Demurrer to the sufficiency of some one of these Pleadings. 4 Paige (NS. EXCEPTION —Pleadings in Estoppel and Dilatory Pleas must meet and remove. does not fully express its meaning. Boston. affecting the whole people. Party to make out It is not necessary to State Matter which would come more properly from the other side. by which Matter of Law is omitted in the Pleadings. yet they may evidently obtain a sufficiently Specific Issue of that description without any Allegation of Law. by anticipation. but the reference is made in this general way only. As it is sufficient for each his own Case or Defense. 509 (1858). 107 Eng. Bogardus V. and with respect to which it is. for Ch.Itep. it is not necessary to anticipate Defenses. 85 (2nd Amed. Trinity Church. 3 Barn. even though the dispute between the Parties should turn upon Matter of Law. 91 Eng. 145. etc. to allege that the defendant committed a certain act against the Form of the Statute in such case made and provided. 381. namely. Parker. and is not bound to anticipate matter which his Adversary may be at liberty to Plead against him. as stated above. 5 Ia. Platt V. Boyce v. The 140 DECLARATION—MANNER OF PLEADING example. that is. Roessier. for the same reason.IS the Time and Place of holding Congress. every Question of Law necessarily arises out of some given state of Facts. Bin. and many other matters. i Doug.Y.Raym. 1799). 703 (1824). there are man)‟ other matters of a public kind.

English: Stowcl v. Howes. which ought to have been shown by the defendants. and it need not be Denied by anticipationA~ So. a burgess of that town. is “like leaping before one comes to the stile. if the devisor were within age. 1440 (1839). & E. Botham v. Comyn‟s Digest. 504. though the Statute provides that wills made by fernes covert. A Treatise on the Principles of Pleading in Civil Actions. and.~ But where the Matter is Such that its Affirmation or Denial is essential to the apparent or prima facie right of the Party Pleading. 571. XIII. C. 801. St. It is not necessary to allege Circumstances Necessarily Implied. as to the application of the Rule in Code Pleading. 571 (1569). Walker v. 146 (1672). c. Stephen. then to the bailiff. 58. Rep.Rep. 99 Eag. -12. yet. 59 (Hartford. On Evidence. 1293 (1787).Dec. On Evidence. without Alleging that such devisor was of full age.. 01 Eng. or al~i. in a Declaration of Debt upon a Bond. to be indifferently chosen by both Parties. shall not be taken to be effectual. Arts. e. or persons within age. Judicial Notice ~l 4—C (Boston. without reference to possible objections not yet urged. 1892). Rex V. it is for the other Party to show this in his Answer. I Vent. C.” M So. (N.. 18043. 197.Y. where an Action of Debt was brought upon a Statute against the bailiff of a town for not returning the plaintiff. 5 Doug. the defendant Moved in Arrest of Judgment. Lord Zouch. see I Greenleaf. East India Co.Y. 830 (1582). Illinois: Rockford Ins. it is unnecessary to allege that the defendant was of full age when he executed it. I Ld. “Pleader. 1 Vent. “for we shall not intend that there was a Mayor except it be showed.. And. 1877): Stephen. in writing. 75 Am. though it may be such as would otherwise properly form the subject of objection on the other side. 65 (1894). 141 cording to Hale. 376. 1902). v. 13. 1 P. 40. President. 7 Conn.” and in an Action of Covenant. without Averring that there was no Mayor. 75 Eng. For. 50. c VII. New York: Hughes v.Rep. Aldrich. 005 Sec. stowel v. by Tyler.R.Rcp. 388 (lSStI).” ~ It is sufficient that Each Pleading should. 217. contain a good prima fade case. (N. 564. 86 Eng. General Rules II 276—286 (PhiladeI~ phia. c. 75 Eng. 1893). Lord Zouch. in itself. 830. Sir Ralph Bovy‟s Case. as. Bob. clearly. unless such short tonnage were found and made to appear on the ship‟s arrival. 78. Sands v. 146 (1672). On Evidence.) 628 (1862). this was moved in Arrest of Judgment. St. the plaintiff declared that the Sheriff had made his precept unto the bailiff. for the last Parliament. Michigan: Smalley v. 1798). 86 Eng.1tep. D. St. etc.Rep. 31 Cyc. 1 Plow. John. 376. 75 Eng. etc. 1 Mich. §~ 187-199 (3d ed.Rep. St. Knollys. Wlarton. 2 Plow. it should come more properly on the other side.) 359 (1847). brought to recover for short tonnage. MATTERS IMPLIED lowanee made for short tonnage. 65 III. where there was a Covenant in a charter party „that no claim should be admitted. Walsingliam‟s Case.On the classification of matters judicially noticed. Washington.Itaym.Rop. the plaintiff had a Verdict. and devised it by his last will. But the Court held that. John. Y.) 168 (1809). Sears. see Bliss. 92 (1828). on a survey to be taken by four shipwrights. John v. Nelson. 153 (1848). 227. Walslngham‟s Case. Paul. of Michigan state Bank. 2 Plow.” C. 9 Adol. ed. IS. Code Pleading. And. Thus. if there were one. that the Declaration was good. it is sufficient to allege that such a one was seised of the land in fee. Weeding v. 415 (1872). On Proof. (Mith. and. BrIstol. 20 N. II. then it ought to be Affirmed or Denied by him in the first instance. in Pleading a devise of land by force of the Statute of Wills. this was Matter of Defense. Section IV. But the Court was of opinion. 5 Johns. after Verdict for the plaintiff. I Plow. Rules Goveraing the Statement. 217. Necessary Circumstances implied by Law Page 153 of 736 . 3. Rep. 75 Eng. 314 (3rd Am. 638. 81 (Dublin. 80 Eng. the words of the Statute being that the Sheriff shall send his precept to the Mayor. and refused to Arrest the Judgment. 36 Barb. Sir Ralph Bevy‟s Case. Smith. if such survey had not been taken.flcp. V Judicial Notice. Co. and cases cited. and short tonnage made to appear. 112 Eng. that it had not been Averred in the Declaration that a survey was taken. if there be no Mayor. Wolfe v. v. 109. MATTERS IMPLIED 65.~ So. Connecticut: Goshen & Sharon Turnpike Co.

. if a feoffment be Pleaded. Hotham Rep. Vynior‟s 58. 303b (Philadelphia 1812). at the said City. Sneers v. for rent. for it is implied. A FOURTH subordinate Rule is that it is not necessary to allege Circumstances Necessarily Implied from Facts that are alleged. 2 fl. conditioned that W. “Pleader” 1. Bulteel. 597. 3 East 192. etc.R. had notice of the Upon Demurrer it was held that this Replication was good. Doct. Marsh V. Brooks.Bep. 305a. 507. 571 (1802).R. It was held not to be necessary to allege in this Declaration a custom for the Mayor to grant Replevin and take Bond. the defendant. 507. and that W.62 So. 68.Plac.Rep. 85 Eng. Co. who executed the Bond and had the benefit of the Replevin.Y. 8 Co. and before the time for making the Award. Comyn‟s Digest. As legality in the transactions or conduct of persons is always presumed. contrary to the form and effect of the said condition.) 105 (1810). Sib. so that. made his Plaint to the Mayor. 99 Eng. 6 of Debt on a Bond. S Co. etc. 106 Eng. and the burden of alleging and proving the negative is on the party who asserts it. Marsh v. and the Issue tendered by the Allegation of such Primary Facts alone is therefore sufficient for a Traverse by the Adverse Party. 318 (Washington. 227. if W. St John. last India Co. it is an Intendment of Law that a person is innocent of fraud.. and thereupon the Mayor Replevied. 80 Eng. New York: Dubois Ex‟r v.6‟ Thus. 638. It is not necessary to allege what the Law will presume. the plaintiff need not Aver that he Page 154 of 736 . he need not allege that A.H. if a man Plead that he is heir to A. 77 Eng. 78. in an Action for Slander imputing theft. 56. Stephen. 102 Eng.Rep. 120.. The plaintiff Replied that after the making of the Bond. Case. in an Action ~5. 126 Eng. 1276.56 The reason of this Rule seems to be that as the Law will always Imply Certain Facts from the Statement of Others. 463 (1792). 1893). ii. 5 Barn. and one insisting on the contrary must both Plead and Prove it. 106 Eng.R. and there prosecute his Suit. v. John v. Van Orden. etc. Thus. 1276.” ~ So. 55. for it is implied in the word “enfeoffed. Williams Debt on a Replevin Bond. 1798). ti.6° So the performance of an act is presumed where the omission would render one criminally liable. in &1. Bulteel. and need not therefore be alleged. SIb. because all these Circumstances must be presumed against the defendant. should appear before the Mayor or his Deputy at the next Court of Record of the City. made no Award. and prayed deliverance.. without Averring that W. conditioned to stand to and perform the Award of W. everything is regarded as legally done until the contrary is shown..Rcp. v.~l.H. 2 Sa. 50 MATTERS PRESUMED 66. so the Facts thus to be implied need no Express Allegation to render the statement of the case complete on either side. 5 Earn. 1294 (1787). I TB.H. Rep.Rep.Lltt. 33. Vyrsior‟s Case. 6 Johns.from Facts alleged are Traversable without being Pleaded. they distrained the goods of W. and within the Jurisdiction of the Mayor of the City. & AId. by his certain writing. 3101. 49. 48. (N. whereupon the Mayor took from him and the defendant the Bond on which the Action was brought. St. 9 (Dublin... as well as free from every imputation against his character.R. etc. is dead. had no Notice.Rep.Rep.. Pleading. it is not necessary to allege livery of seisin. revoked the authority of the said W. & AId.. it would have been competent to the defendant to Tender Issue “that he did not revoke in manner and form as alleged. the defendant Pleaded that Wit. because that was implied in the words “revoked the authority. and show that the Plaint was made in Court. Hob. 597. DECLARATION—MANNER OF PLEADING TFIUS.” for there could be no Revocation without notice to the arbitrator. U. 77 Eng. English: 142 Cli. East India Co.” M So. the plaintiffs declared that at the City of C.

as where a plaintiff. 588. 150 (1761).°3 If the matter stated be wholly foreign and impertinent. he is often bound to prove all items as stated. Wright. 64. Sec. Rep. 65. 1330 (1778). though unnecessarily alleged. 665. Matters Implied. suing upon one of the Covenants in a long Deed. It is therefore of the utmost importance to avoid both the statement of unnecessary facts and the Allegation of Facts which. so that no Allegation on the subject was necessary. In either case it is a fault to be avoided. Fletcher. English: however.Rep. Wlbon THE term “Surplusage. 63. though not wholly foreign. 90 Erig.” as used in this chapter. Lord Weymouth. but also frequently affording an advantage to the Opposite Party. I W. Wright. 4 T. per inutile. 95 Eng. not only the Covenant on which he sues. 1243 (1835). 233. Dundass SURPLUSAGJ~J v. & 5.Rep. 126 Eng. v. things Judicially Noticed. 2 Doug. 422 (1781) Dukes v. or by compelling the Party Pleading to adduce more Evidence than would otherwise have been necessary. the Rule being well established that matter. Carlisle. 132.Rep. the maxim being that “utile. Alabama: Perry V. Yates v. 25 Ala. Surplusage is to be avoided. 325. such as Matter of Evidence. as where it is wholly foreign and impertinent to the case. sets out in his Declaration. such matter need not be stated. IllInois: Eurnap V. 1 fling. Price v. tinder penalty of a Variance. non vitkztur‟ nor does it require proof. while relevant to the case. 614 (1682). Fielding. though they may be relevant. 99 Eng. by providing him with an objection on the ground of Variance. The Perfection of Pleading is to combine the requisite Certainty and Precision with the greatest possible brevity of statement.. 143 irrelevancy arises from the Nature of the Matter itself. 85 Eng.C. Hammond. though relating to matters wholly irrelevant to the Cause. Rep. 659 (1854). 2 Cowp. 147. Hobday. 83 Eng.ReP. must be proved if it is descriptive of that which is essential. whether its 62. and (II) When. 3 Lev. 131 Eng. as not only tending to cause prolixity in the Pleadings.” as the term is used in the present Rule. 08 Eng. 98 Eng. and may therefore be Stricken Out on Motion. 727.Rep. 66. Edwards v. Eristow v. 131. Plant. 256. Chapman v.Rep. which fall within the Various Rules heretofore explained as tending to limit or qualify the Degree of Certainty. 1296 (1777). 96 EngItep. 2 Cowp. 105 EngItep. 1 Sauna. is taken in the broad sense of including all unnecessary matter. the Pleader is under no necessity of stating. “Surplusage. 469 (1792). 667. but all the other Covenants. The Rule requires the omission of such matter in two instances: (I) When the matter is wholly foreign and irrelevant to the Merits of the Case. 422 (1781). 2 13131.Bl. PhIllips v. Thursdy v. 667.6‟ Page 155 of 736 . but it will be entirely rejected. 64 or in the Pleading Matter that. Pickersgill. it does not vitiate the Pleading.°6 If.N.°3 SURPLUSAGE 67. because the Law presumes his innocence till the contrary be shown. Marsh. includes matter of any description which is unnecessary to the maintenance of the Action or Defense. are not essential to a Proper Statement of the Claim or Defense. 2 wus. note 2 (1669). 67 734 (1762) not a thief. 2 Doug. etc. a Party take it upon himself to state the Particular Facts of a Claim where a General Allegation only is sufficient. 270.Rep. 782 (1815). Costllos. Eristow v.

. Dome of Treasury v. v.Y. (N. XXI. 91 Eng. Yet it is recognized that Averments of Mere Surplusage. 169 111. it does not Vitiate the Pleading. 6 we have just seen. The Pleader has to steer his course between Scylla and Charybdis. Abbott. also. 308 (1864). Chesapeake & 0. 632 (1902). (S. 33 11]. however.72 Thus. v. Northern Trust Co. 287 (1701). Rogers.Y. Shearer. Gridley v. Enoebel r. THE harsh Rule by which the Courts punish a Party who Pleads Immaterial Facts by compelling him to prove them literally as alleged. MichIgan: Murphy v. 1884). Kirchcr. 73 Eng. 31 (1897). where. instead of simply pleading the note “for value received. (md. on the Face of his own Pleading.Y.E. OS. he binds himself to prove this Surplusage in addition to the essential Facts of the case. Russell v. Ch. 1 Salk. avoiding all unnecessary detail. 47 (1873). Commissioners 69. 5 Blackf. Co-. McCraw. Aland. New Trials have frequently been granted for Want of Proof of wholly Unnecessary allegations. 68 III.) 11 (1794). which are not “matter of description. 324. 15 Wend. Dyer 365.” are immaterial and need not be proved. See.E. Sir Francis Lekes Case. 3 Bbs.C.Rep.) 443 (1846). Carterville Coal Co. for example.Again. 72. expressed to be for value received. City of Bloomington. New York: Thomas v. 1 Brev. 66. And. Massachusetts: Buddiugton v. (Mass.) 462 (1811). 1792).Rep. the Pleading will necessarily be defective. 70 UI. 363. By Unnecessary Particularity in a descriptive statement. the plaintiff. 13. must be proved as laid. 581 (London. 495. 438 (1873). Where. on the other. that he has no Cause of Action. Barnes DECLARATION—MANNER OF PLEADING chancery Practice.) 321 (1811). 301 (1853). Gilbert. Every Descriptive Averment. although they need never have been set out to state the Cause of Action is shockingly illustrated in negligence cases. 318. 41 NW. 315.) 351 (3836). it may be Stricken Out on Motion. Sec Turner v. Brevard. v.flep. in an action on a non-negotiable note. the essential and non-essential parts of the statement may be so interwoven as to expose the Allegation to a Traverse. 810 (1578). 74 Inch. Shlpherd v. Broom. 7 Johns. in Action for 71. Cashford. 131—132 (Lon~ don. 4S N. & P. OL ~° but it is no Ground for Thus. also. 65 N. If he sets out the facts showing of what the value consisted. He has to learn just how General he may make his Allegations. and is driven to state his case in a confusing variety of Counts. The Pleader should ascertain what are the vital elements of his Action or Defense. 112. Eylca. though made with Unnecessary Particularity. as WiflE. 7 Johns. on the one hand. Roosa. 181 Ui. Indiana: Bequette v. And see. inconsistency or discrepancy on the Face of the Record is created by Surplus Allegations. this fault is to be taken advantage of by Special Demurrer)‟ DESCRIPTIVE AVERMENTS 68. Legal Maxims.) 477 (1838).Rc‟p. (N. Wall v. (N. and the Pleader to an increased Burden of Proof with its consequent additional danger of failure. 14 UI. 55 N. Demurrer. since. Whitney. 127 Eng. 200 111. which multiply and complicate the Issues.” will he held to strict proof of what he thus alleges.E.68 So it is a Material Part of the Rule respecting Superfluous Allegations that if the Party introducing them show. 20 Pick. as to this danger and the necessity to prove mat‟ ter unnecessarily alleged. and the danger of stating mere Conclusions of Law or Fact. 247 (1803). e. 917 (1889). where a plaintiff. I Salk. ~O. Lasselle. Jerome v. 91 Eng. or it will be a fatal Variance. if Material Matter is alleged with an unnecessary detail of circumstances. Field. 45(3.” 5 When the surplus matter is wholly irrelevant. Wyat 144 v. 131 (1899). and then examine the decisions of his own state to lean just Page 156 of 736 .

1909).E. v. alleged that at the time of the injury she was standing at the intersection of a street and the main tracks of the defendant‟s railroad. 55. There is an Exception to this Rule when the Allegation creating the fault is Superfluous. the plaintiff offered at the Trial a note signed by “Wilhelm” Becker. It Collins Western By.E. 663. to state the termini between which he was being carried. ~3. and the reason of the rule is clearly apparent. Spangler v. Co.. how general he may make his Allegations. People. v. Co. and the amount of the note was a half cent larger than the amount alleged in the Declaration. ~„ 7. Thus. fly.” where a note was received in Evidence. The Illinois Supreme Court. by Gould. City of Chicago. 30 N. Pugh. however. Hart.Personal Injuries against the railroad. the difference between the instrument described and that offered in Evidence of a dollar mark after the amount of the subscription was held a fatal Variance. if he does state them. although the body of the contract showed what was intended. 353. Sec. 135 Ill. Ann. alllings. 14~ In Span gler v. but. and the Declaration Averred that be was the “owner and occupier” of certain premises. by unnecessarily particularizing In a descriptive Allegation he binds himself to prove these unnecessary particulars In addition to the essential Facts of the descmiption.E. 37. 318 (1915). Lake Shore & 11. Co. in order that the Science of Common-Law Pleading might not be impaired. Ohio & Iv!. for he is above all to avoid unnecessary detail. 511.74 It is not necessary for a passenger. 564. Young.E. this was held a fatal error in Matter of Substance. Commonwealth v. 146 Ill. but admits Proof that the injury occurred at any time within the period of the Statute of Limitations. 1916.75 These decisions are placed on the ground that the great object of a Declaration is to notify the defendant of the nature and character of the plaintiff‟s demand. the Allegations will require strict Proof.‟3 But the precise place where the personal injury occurs is not ordinarily an element in the Cause of Action. 72 N. 270 Ill. III. Div. II. the Pleader make his Allegations of particulars under a videlicet. where the defendant might have been liable as owner of certain premises. Pt. CarlIn v. and it is sufficient to state the County in which the injury took place. 989 (1894): Wabash B. on March 1. 76 There is equal notice in either event. In an Action of Assumpsit upon a note alleged in the Declaration to have been executed by “Wiffiam” Becker. 221 (6th ed. Ward. v4z. 74. 2 (1904). 36 N. who is suing a railroad for injuries. 26 N. whether the “Viz” is used or not. the Court expressed the opinion that it would be a material Variance if the Proof showed that she was then standing twenty-five or thirty feet from this point. that the injury occurred on a certain day. 905.Cas. 149 Ill.App. A Pleading is bad for Repugnancy when it contains Contradictory or Inconsistent Allegations. Albany. As we have already seen. although regretting that such a trifling slip should delay a Party in the Administration of Justice. which destroy or neutralize each other.78 If the plaintiff had declared on the Indebitatus Counts. 34 N. c. 70 Mass. The Major Requisites of Pleading. 77 (1859). then the Count will not limit the plaintiff to the precise day alleged. 583. 108. 213 (1915). also. 110 N. In another case. see Obicago Terminal Transfer B. Proof tending to show liability as owner alone was held inadmissible. v. 21 Ill. Co.79 REPUGNANCY 69. Sanitary District of Chicago. he might have proved the execution of the instrument and established the indebtedness without any details at all. 212 ill. A Treatise on the Principles of Pleading.Dcc. 118 Ill. Gould. Page 157 of 736 . This was admitted in Evidence over Objection and the Judgment for plaintiff was Reversed for Variance. v. S. 1111 (1893). 69 v. 262 Ill. Co. In an Action on the If. v. so that he may be able to prepare for a Defense. On the office and effect oof the Videlleet or Seiiieet to separate non-essential details. REPUGNANCY REPUGNANCY is a fault in all Pleading. 74 Am. Cage. fly. 104 N.E. I.E. 7~. sent the plaintiff back for a New Trial.1915B. 226 (1905). Wabash See. 520 (1891). Pugh. Friedman. (10 Gray) 465 (1858).E.

Vermont: Hcrsey v. non vitiatur.Rep. neither a legal Cause of Action nor a Defense. 4-11. the plaintiff declared for taking and carrying away certain timber. 287 (1701). 91 Eng. that construction is given that is most unfavorable to the Party Pleading. Tennessee: Bynum v. 272.85 Thus. if. By. Ashmoro. where the Declaration or Other Pleading alleges matter which either contradicts or is inconsistent with matter previously alleged in the same Pleading. Brown. 344 (18011. Co.5° Thus. by virtue thereof. 67 Ill. 303b (Philadelphia. it Vitiates the Pleading. U 1l1. 940. 613. the Plea is insufficient. Brown. when two different meanings present themselves. 25a. since it is presumed that every person states his case 84.E. 190 (10071. German Mut. it will be uncertain what he means to allege. Page 158 of 736 . Indiana: Barber v. Co. 287 (1701). Soper. 8‟ So. 324. 340 (1908). but a Pleading is not objectionable on this ground if it be clear enough for its true meaning to be ascertained. 68 III.Bep.78. English: v. v. 86 So. 304 (1891) . the Plea was held bad for Repugnancy. 7 Mod. Illinois: Raymond v.Rep. 053. 77 Eng. 77 Eng.Cas. out of a term of years. in Trespass quare clausuni fregit. 7 Co. this declaration was considered as bad for Repugnancy. for the timber could not be for the building of a house already built. Fire Ins.Rep. 75 Vt.Litt. the Allegation creating the Repugnancy is merely Superfluous and redundant.App. Illinois: Priest v. & S. and. Butt‟s 81..”8‟ AMBIGUITY OR DOUBT 70. there can be. 91 Eng. 511. per mutile. (Lad. DECLARATION—MANNER OF PLEADING Out on Motion. for the term of his life. Becker N. Nevil v. Traction cc. 91 iC~e. Stevens. 81. W. also. 7 Co. ¶0. 416 (1907). 242. 1150 (1102). 832 (1902). 1 Salk.\. lying in a certain place. Sheffield Cc. Nevil 82. v. Case. 219 (1910): Florida: Florida Cent. Aland. 148. & P. Co. Summers. 1 Salk. I Salk. Kolslian v. (lad. the defendant Pleads that the locus in quo was his freehold. 5 Blackf. 511. Comyn‟s Digest. though not worded with absolute precision.Bep.Bep. since. Ewart.. 213. 1 Salk. Sopor. he was seized in his demesne. Hart v. 95 (1903).) 339 (1840). 82 Where the Repugnancy is in a material point. 102 Eng. 5 East 244. Elgin. Butts Case. 132 Ill. 18 SW. conditioned to make assurance of land. 4 Pick. Longfield. on the Party‟s own showing. which is ill on Special Demurrer. Longfield. 53 So. 148. Alabama: Merrill v. Rex v. that construction shall be adopted which is most unfavorable to the Pleader. 25a. 14 Ami. upon its face. Northern Assurance Co.. for the maxim is “Utile. 1793). 412 (1873). 7 Co. Rep.83 When.Rup. 5 Biackf.Rep. 23 (Dublin. 77 Eng. 235 UI. he must allege that it was his freehold at the time of the Trespass. 32 So. People. where. Ambiguity in Pleading occurs where the matter alleged may have several meanings.87 In determining which of two meanings that present themselves shall be adopted. Hart v. 1156 (1702). v. if the defendant Pleads that he executed a release. and proceeded to allege that. 7 Mod. 25a. 324. „Pleader” C. Massachusetts: Sibley v. 511. Summers. Dodsworth. App. according to reasonable intendment or construction. however.) 339 (1840). it is to be disregarded or Stricken 50. otherwise. 43 Fla. 1063 (1804). 90 Tcnn. for the completion of a house then lately built.) 337 {1~2W. 50 . so that it may be rejected from the Pleading without materially altering the general sense and effect. 190 (3697). 91 Eng. 85 N. 160 Ala.Itep. B. in an Action of Trespass. 87 Eng. of North Chicago. Co. (Mass. 213. E. Jacksonville. where the defendant Pleaded a grant of a rent. his Plea is bad if it does not express that the release concerns the same land. 87 Eng. Wyatt v. Aland. as of freehold. Indiana: BarS ber v. 201 (1873). Butt‟s Case. Pleadings must not be Ambiguous or Doubtful in Meaning. in Debt on a Bond. English: \Vyat v. See. Aurora & S. and will not Vitiate the Pleading. THE Pleader must avoid stating the matter of his Claim or Defense in such a manner as to render it so Doubtful or Obscure that.

Where a legal Duty imposes the due performance of one thing or another. (Miss.L. 129 Am. Comyn‟s 87. Alternative Pleading in the United States. McDonald.. 478. 921.Rev.Rep. 33 Yale L. 440. 48 Mich. see: (1871). 85 Eng. California: Green v. Ia Articles: Hawkins. Section ThIrd. 365 (1924).Rep. Thus. Foster v. 320. 330.Rev. Rep. Dl. 80 Eng. Illinois: Halligan v. 443 (1952). 742 (1849). 102 Eng. 487 (1941). 1 Bos. Emerson v. 530. Purcell (1795).Rev. Digest.. if any such escape was made. 120 Eng. of City of Natches v. 422 (1824). Pomeroy.L. 558 (1854). 5 (Dublin. 410. p. Comyn‟s Digest.Rep. Thornton v. and against his will. 32 Mich. King v. Alternative Parties and the Common Law Hangover. The Rule of Strict Construction at Common Law has been superseded by the Rule of Liberal Construction under the Code. Covillaud. English: Eug.1812). 19 Tex. 392 (1608). tel. & S. 2 Co.Rev. and also clearly point out which one was completed. Bradley.Rev. 38. 5 East 244.L.Y. Eyles. 965 (1816).Bep. 2 Hill (N. 91 Ill. 1219. 2 Co. “Pleader” B. 103 (1810). 76 Eng. Cook Griffiths v. Alternative and Hypothetical Pleading.. etc. 9°.W.L.St. Chicago & B. 3. such a General Plea will be Ambiguous and improper. Co. 5 (Dublin. The Plea must therefore show the performance of one of the acts. 70 L. Pleadings must not be in the Alternative. 147 Page 159 of 736 . 1793). Brcreton.) 544.R. 392 (1608). Amhurst v. 15 III. Mississippi: President. Slcynncr. See. 4 Mich. “Pleader” E. 10 Cal. “Pleader. Lord Arlington v. etc.Rep. Co. 89.8° PLEADINGS IN THE ALTERNATIVE DO 71. Clark. 5 (Dublin. Dec. Adams. Alabama: wam v. also. 105 Eng.) 475 (1842). 33 Iowa 216 general. Rex v. 413. 85. 60 (1933). 126 Sec. 1082 (1909). the Pleading must state that one was performed. 6 DUPLICITY IN GENERAL defendant. Town of Hampton. on Pleadings in the Alternative. 311. 339 (1856). ~o at large he so escaped without the knowledge of the defendant. Nash 124 Wis. and No Definite Issue would be formed. Elliott. however. 70 Am.A. New York: Perriss v. 727 (1848). 26. 1063 (1804). in a case where he is required to perform Several Affirmative Acts.Rep. Rep. that when an expression is capable of different meanings. 96 (1878).Rep. Merrieke. namely.Rep. 179. 3. Minor. 86. The General Principles of Pleading. H. Stevens.91 While it is competent for a 8~. Dun‟ ham. 369. HYPOTHETICAL or Alternative Pleading is always bad. 236 (1721). Michigan: flush V. Monson.Dec. Slocum v. Comyn‟s Digest. 109 Ana. 603 (1952). where the defendant Pleaded that if the said prisoner did. 119 NW. 30. 983 (1799).. 9 Sinecles & l‟l. Boston. is always subject to this quaiification. 30. by Bogle. 1793). 725 (1858). Bennett. 1 Hill (N.L. McDonald. at any time or times after the said commitment. Manser‟s Case. Connecticut: Fuller v. 2 Hill. in an Action of Debt against a jailer for the escape of a prisoner. & P.Rep.a. 10 Ala. to Plead Generally the due performance of all 92. 76 Eng. Dovaston v.48 Am. 5 Conn. I. note 3. Jones v. 52 Col. 88 Eng. and that. and specify which one. 1904). Payne. 1793).88 This Rule.) 71 (1841). as favorably as possible for himself. North American Fire Ins. Henkel V. if the acts imposed are in the Alternative or Disjunctive. 317. 590— 592 (4th ed. 2 Saund. Dudley. Code Remedies. Id. since it would riot enable the Court to determine which of the acts had been done. 102 N. Manser‟s Case. 12 East 263. 137 Wis. Comments: Pleading—Alternative Pleading—New Rule 48.Y. Heyman.St. 425 (1950). 52 Col. 686 v. 5 M. 104 Eng. 72 146 Cli. 944 (1904). the one which will support the Pleading is to be taken rather than the one which will defeat it. Alternative Pleadings. 8 Mod.Rep.” E.

there has also been a return. 3 Salk. 488 (1594). without the necessity of making an election.StRep. iSa Am.) 425 (1830). East India Co. or ten escapes. 72 A. Illinois: Calhoun v. v. Butcher v. or caused to be written and published. 124 Mian. Light & Power Co. 32 (1909). 159 Ala. Illinois: Parsons v.°6 The Rule in its terms points to ~ Oglethorp v. English: 148 Rumphreys v. Taylor v. 1084 (1810). consists in alleging two or more distinct grounds of Complaint or Defense for a single object. and (II) The Subsequent Pleadings. 911 Eng.App. 083 (1790). 78 Eng. ~ s~ Eng. Birmingham. 51 L. In such cases some Modern Rules of Procedure allow the plaintiff to join any or all of them as defendants in the alternative. 1 Bce. 553 (1814).Rep. 740. 233. or where a defendant may have been acting either as an agent or as a principal. 6 Greenl.Rep. S TB. Needham. V. Ex parte Pain. or an adequate Answer to the Preceding Pleading of the opponent. 280. 164 I1l. (Jo. Earl for uncertainty.. By. 198. 3 Scam. Baxter. SmIth. v. 101 Eng. & S. 801 (1803). 141. as where several corporations operate a line of track. Alternative or Hypothetical pleading is a Defect in Form. 23 N. 80 Eng. 108 Eng. 494) (1908). Whipple. even tbough inconsistent. 93. Lewiston Journal Co. Eyles. Booth Fisheries Co.E. & W.Eliz. 491. 391.S. Maine: Scott v. if there has been an escape. 554. S Mod.. 335 02. THE requirement of the Common Law that Pleadings shall not be Double has for its object the Attainment of the Singleness or Unity of the Issue between the Parties.. 105 Eng. Hewitt. It is also deemed convenient under Modern Rules to allow a Party to include in his Pleading two or more alternative sets of Material Facts. nrcreton. 1389 (1799).M (1875). 61 So. two.Rep. 9 M. 659. Hyde. 114.A.R. 350 (1890). 144 NW. Hodgeon v. & C. after which the prisoner returned. which it is the aim of all Pleadings to produce.. upon an alternative construction or ascertainment of his Cause of Action.the prisoner voluntarily returned into custody before the defendant knew of the escape. Massachusetts: DECLARATION—MANNER OF PLEADING Page 160 of 736 . 236 (1721). 2 Taunt. Duplicity. in their respective Pleadings. 131 Ill.Rep. or that there have been one.Bep.) 640 (1913). Grlffiths $4. 48 So. 104 Me. Burrass v. 181 Ala. The fault may exist in. Cro. King ~. Johnson. the Court held the Plea bad. Rep. v. v. a certain libel. Wright. and the Rule therefore applies to (I) The Declaration. 509 (1903). or Double Pleading. when one only would be sufficient. 413. 450. By. Cases arise where the plaintiff is uncertain against which of several persons he Is entitled to relief. objectionable on Special Demurrer only. Wisconsin: Zeidler v. of Kerry v. 404. or an effective Defense to the same Claim. It precludes both plaintiff and defendant. 5 B. 94 (1826): Alabama: Anniston Electric & Gas Co. 96.) 74 (1841). 798. 195. Rosen. 126 Eng.Rcp. (Ill.Bep. 278. this was considered as bad v.Rep. Minnesota: Casey Pure Milk Co. and to claim Belief thereunder in the alternative. Eetts. 38 Wis. (N.Rep. Bethily. constituting a sufficient Ground of Action in respect to the Same Demand. from stating or relying upon more than one matter. Stenart. 251. 4 East 340. Chicago W~ I). & P. He must either stand upon an Averment that there has been no escape. Cox. 171 (1842). for “he cannot Plead Hypothetically that.) ¶224 (1841).1. etc. 117. 3 Scam.” °~ So. Gaile v. Maine: Maeurda v. 127 Eng. Ingraham. 3 1.°5 DUPLICITY IN GENERAL 72. Nicholas. 361 (1913). 2 Vent. (Me. (Ill.Rep. where it was charged that the defendant wrote and published. 102 Eag. 152 Eng.

Cook. 87 Md. THUS. Ferguson v. New York: Connelly v. or the improper Joinder of two Causes cf Action in one statement And the fault is also recognized and condemned in Code Pleading. 956 (lOll). Laporte v. 76 A. 2 Co. 773. 339 (1890). 23 N. 76 Eng.Rep. 20 RI. 937 (1910). 133 NW. Little v. B. People‟s Nat. yet the Averment of the coverture is a necessary introduction to that of the release. 97. 232 (1875). Stiver. the term “Doubleness” or “Duplicity” being applied. 059. 161 Ill. advantage must be taken of it. extends equally to the case of more than two. 1778). The Rule as to Duplicity finds its analogy in Equity in the prohibition against Multifariousness. Carey. see $chwindt v~ Lane~Petter Lumber Co. as if it prohibited only the use of Two Allegations or Answers.97 This is a Fault in Form. Condon. 108 Me. 792 (1896). Being thus a Defect only in Form. 1042 (1898). only by Special Demurrer. 106 Me. 24 N. (Mass. Bacon‟s Abr.H.. when itself amounting to a Defense. Perkins. 182 (1853). Duplicity is a Fault in Form. Pierce v. see Chicago W. New Hnlnpshire: Tebbets v. 104. it may be Pleaded. in which the particular Duplicity must be 93. 07 Eng. different Grounds of Action to enforce a single Right of Recovery. (N. 492.Y.E. “Pleader” E. 49. Ingraham. though with some inaccuracy. but its meaning. 38 A. for though the eoverthre is itself a Defense. or Answer. under the Statute of Elizabeth. when one alone would sufficiently establish the Matter in dispute. Ohio: Rumbarger v. National Shoemakers. that after the Cause of Action accrued the plaintiff (a woman) took a husband. see Noctling v. 261. 308. K. which is not in the Substance of the Matter Pleaded. 3 N. as. 469 (1608). Gore v. On negligent Damages to person and property from the same act. THIS Rule results necessarily from the Nature of the Fault. Duplicity in a Declaration consists in joining. also.. 43 N. in preference to another. for the Party has a Right to Rely on any single matter that he pleases. Co. and also for a Breach of Contract. because it tends to prolixity and confusion and a Multiplicity of Issues. 390 (1874).2 (Dublin. 2 Burr. 1793).2 (London. 4. in this instance. and can only be objected to by Special Demurrer. Pierce. Wright. Co. 189.Cli.. D. as well as the release. Page 161 of 736 .H. 107 P. 79 A. to either case. 395 (1608)..98 This Exception to the Genera] Rule is prescribed by an evident principle of Justice. Kinney v. 6 OhIo 99 (1833).) 236 (1835). 72 Ill. See. 17 Pick. 120 (1851). Manser‟s Case.Rep. 700 (1897). 40 Mont 537. see also. For a Count seeking to recover Damages as in an Action on the Case for Deceit. 131 Dl. Parker. 24 N. and it is in all cases founded on the principle that it would be unnecessary and vexatious to cause the Adverse Party to litigate and prove two or more Facts or Propositions. v. the effect would be to exclude him from this right. No Matter will operate to make a Pleading flouble that is Pleaded only as Necessary Inducement to another Allegation. Brown v. without Duplicity. Parker v. INDUCEMENT 73. Gilbert. Wilson v. Tilton. 39 A. and that the husband afterwards released the defendant. CONSEQUENCES OF DUPLICITY 74. Michigan Cent. of course. involvIng several independent breaches of duty. Shepard & Co. 502. 6 Doubleness only. “Pleas” etc.. in one and the same Count.) 129 (1581). 469 (1911). Turner. 168 Mich. 37 IVis. and compel him to rely on the Inducement only.E. 555 (1759). Savery. 15 Ill. On Duplicity. Bank v. Creen v. As to Duplicity in the Declaration. 350 (1890). But if a Necessary Inducement to the matter on which he relies. 123 ImI. Nickerson.E. but in the Statement of Matter in excess of what is necessary to constitute a valid Claim. on the release in preference to the coverture. 818 (1910). Cornwallis V. 7 Wend. were held to make his Pleading Double. The effect of the Rule is thus to avoid confusion and a multiplication of Issues in the Action. Nichols. By. Comyn‟s Dig.

flriggs V. the objection cannot afterwards be raised. S Ala. 39i. § 25. and to delay the progress of the Trial. avoiding False and Frivolous Allegations tending to deceive the Court and the Adversary. 26 Page 162 of 736 . Thus. 6 Black!. and not merely to the Defective Count or Breach. 50 Pa. containing separate and incongruous Causes of Action. in a Suit on a Fire Insurance Policy. either on General Demurrer or in Arrest of Judgment or on Writ of Error. Laguerenne. but the company may expect to avoid liability by showing in Defense some Excuse. improperly joined.) 145. but it must still be remembered that each Separate Answer. Saunders v. True. 375 (1880). Bowler. 2 Root (Conn. if the Action survived. Sec. 87.) 158 (1842). 237 (1841). since a plaintiff who joins in the same Declaration different Counts. Rep. commits a radical Fault. 2 Vent. where. when a copy is filed with the Pleading. (1819). 414 (1867). 108. If a Demurrer is Interposed. Grand Trunk By. or the one passed over will remain decisive against him. yet there are no means of enforcing the Rule. Newman. there may be no dispute as to the Execution of the Contract sued on. an Answer to each Matter. and his Declaration is bad. 10 Jobns.) 101 Pharr v. 110. But a Demurrer for Misjoinder must be to thc Whole Declaration. Co. 27 (1910). clearly pointed out. 100 Eng. Fernald v. 4 Tn. Plea by an Executrix in Abatement was not subject to the charge of Duplicity In Alleging the Facts showing that the Action did not survive against defendant as Executor. (N. 363 (1546). Pleads Over instead. Humphreys v.E. It is usually provided in Reformed Systems of Pleading that the plaintiff may Verify his Complaint. Onion v. The Illinois Practice Act (Section 55) gave the plaintiff the option in Actions on Contract for the payment of money to file an Affidavit as to the amount due. so as to prevent the operation of the Be.°° If the Party Demur Generally. is subject to the full operation of the Rule. those Facts were necessary under the Illinois Abatement Act. Garvln. Bissell. The Rule requiring the Demurrer for Duplicity to be Special. The purpose of this is to give the plaintiff notice of the Real Defense to be presented and to limit the Issues to be tried. does not constitute Duplicity. the weight of authority seems to be that he must answer both Matters. 60 (1789). 366. 355. Where the Opposite Party. single in itself. Lawrence. to make the plea good. 58 Ill. and thereby require the defendant to file with his Plea an Affidavit of Merits which must specify the Nature of the Defense. Carpenter v. 105 Engllep. Nottle. The Illinois Practice Act (Section 52) made provision that the Denial of the Execution or Assignment of an Instrument in Writing.. 348. PLEADINGS TO BE TRUE 149 99. 81 Eng. Thus the Common-Law Pleadings fail to uncover the Real Issues in dispute. 75 Laley. crawley. Garvin. 274 Ii]. 55 Me. 511 Me. Bose v. 417 (1567). (1791). 1 Maine & S. and then the Denials of the Answer must be Specific. And the plaintiff cannot. as distinct Grounds of Recovery. Aid his Mistake by entering a Nolls Prosequi.Rcp.2 2. lUngdoin v. as to its own Allegations. AT Common Law. Roop. New York: Cooper r. Alabama: (1845). the company cannot deny the signature or due execution of the policy. 133 (1818). such as Breach of Warranty by the insured.Y. PLEADINGS TO BE TRUE 75. (III. and must also be made Under Oath with the Penalties of Perjury for Falsehood. must be Verified by Affidavit. Mayer v. Every Pleading should state only such Facts as are True and Capable of Proof. Accordingly. 18 Vt. Seymour v.) 140 Illinois: McGinnity v. if the Complaint be Verified. Instead of Demurring to a Pleading which contains two distinct and sufficient Matters. Franey v. Mitehcl.Bcp. though an Amendment by striking out the objectionable Counts may be allowcd. 40 Vt. Indiana: Bodley v. 1 Bolle. 86 Eng. 1 nfl. Clark. of murrcr. Jennings v. This requires the defendant to put in Issue only the Points on which he means to Rely. 54 Me. 281 (1865). Fei-nald v. (1714). (md. 194 (1894). 5 Gil. Bachelor.Rep. v. SmIth. 113 N. 120 Eng. finds no application in the case of Misjoinder of Causes of Action. Bethily.App. 112. Noble‟s Adm‟r. McClure. t In such case. 1057. Genmill V. 108 (1868). while it is a principle that Pleadings ought to be true.A.

At the same time it is safer to follow approved precedents. (1803). Allegations and Denials. 56 (1016). 3 Barn. J. 164. Cannon. 150 IlI. but I entertain a decided opinion that the established principles of pleading. 6 CONFORMANCE TO CUSTOMARY FORMS precedents. consequently. Bayard v. 1444 (1801). 443. “To dispense with the Rule.Y. 112 Eng. 570. 1. Dowland V. THIS Rule is not to be taken as an imperative one. 86 Ill. Pleadings should observe the known and ancient expressions as contained in approved Ch. 30 At!. DECLARATION—MANNER OF PLEADING which the proof might be difficult for the plaintiff to obtain and produce. upon the ground that “from the passing of the Statute to the present case the invariable Form of Pleading the Statute to an Action on the Case for a wrong has been to allege that the Cause of Action 3. 3 Am. 3 76. 1 Iohns. The Court decided. which was in accordance with prec edent. Bolton v. Bayard C. 126 Eng.° 4. otherwise there is danger of omitting an Averment which might. 333 150 See. English order 21. 165 Pa. 154 (1861). & Ald. Dowiand. 30 Ill. & F. 2 Johns. 2 Bbs. (N. 471 (180W. 102 Eng. 450 (1807). Wah-J-Ienius In~ stitute of Fermentology.. except in certain cases where precise technical expressions or terms are required to be used. Armstrong v. And see slade v.” 5. “would be a dangerous relaxation. Oyster Code Pleadings §~ 135. 1074 (1804). 725 (1820). 1 Vent. be considered essential to the particular Pleading. III. 86 Eng.) 550. 126 Eng.Rep. Note: „pleading—Statute of Limitations— Permanent or Temporary Injury—Plea of Non-Accrevit. namely. the defendants Pleaded the Statute of Limitations. 182.) 453. 577 (1877). Blome v. Latimer. and admirably adapted to the investigation of truth. and ought. luminous. 53 (1873). “that they were Not Guilty within six years. In a New York case the Lower Court held a Declaration in Case for Deceit in the sale of property bad. Blackburn.L. 168 (1909). v.” The Rule stated is of rather uncertain application. that this Form of Pleading was bad.) 633 (1885). Battye.estab. are rational. See Higgins Carpet Co. Eeynolds v. Kipp v. & P.Rep.. King. 161. When there has been a long. 432 (1837). PART THREE Page 163 of 736 . Malcolm.Rev.Rep. Slade. 1050 (1895). 7 Ado!.App. containing Allegations of Frequent and Ordinary Occurrence applicable to the Facts of a Particular Case. rule 9. Malcolm. fixed by ancient usage. 272. and was deemed essential. lished Form of Pleading. and might lead to the loss of Certainty and Precision in Pleading. And see Gould v. 5 East 272. which compose what is called its science.” ~ On Writ of Error. Bliss. to be very cautiously touched by the hand of innovation. Beebe V.Dec. 1. 106 Eng. B].” etc. 410 (1902). Bell. Webster. 106 fli. to the same effect. 617.Rep. The General Issues are examples of forms of expression.” etc. See 11 Ill. even after Verdict. concise. General Rules will sometimes appear harsh and rigorous in their application to particular cases. made without reasonable cause and found untrue. it should in general be adopted for the sake of Uniformity and Certainty. 422.Bep. this decision was reversed on the ground that the Defect was Aided or Cured by Verdict. (N. because it failed to allege the scienter on the part of the defendant in making the sale. C. (N.App. DaIly v. 28 Mich. v. for it must be often doubtful whether a given form of expression has been so fixed by the course of precedent as to admit of no variation. from which it is improper to depart. upon Special Demurrer.” said Kent. By the rules 33 of the Supreme Court of New Jersey.Rep. I H. 11. 13 Wend. v. And another illustration of this Rule occurs in the following English case: To an Action on the Case.Harber Bros. subjected the Party Pleading them to the payment of such reasonable expenses caused to the Other Party by such Untrue Pleading. on account of precedent. and that “it was important to the Administra~ tion of Justice that the usual and established Forms of Pleading should be observed.. Bay. Knapp.Y.Y. did not accrue within six years. flare! v. And see.

39. IV. 44 Trespass (London. Lecture IV. Pt. And in Common Law Pleading the Declaration must state a cause of action in the particular form or theory of action selected.Q. 359 (1932). First we shall discuss the Allegations essential to establish liability in the Tort Actions. XX. 52. 165. Debt. And. The typical elements or grounds constituting a cause of action differ With the different Forms of Action. 65. 56.. Improved Legal Procedure (Boston 1913). The Remedy of Distress. 219. Trespass and Negligence 74. 3 Id. Comment: Injunetlons—Contiuuing Trebpass—Trial by Jury. 102. Maitland. 33 Yale L. 1. 100—101. Trespass on the Case. under Modern Codes. 590 (1923). Lecture XIX. Statutes and Their Interpretation in the First Half of the Fourteenth Century. 1881).. e. c. c. 301 (1921). 278. Action of Trespass {Northport 1906). we come to the problem of stating a cause of Action in terms of the Ordinary. 316— 320. Lecture III. 106 (1936). 184. A Strange Offspring of Trespass Ab Initb. Trespass De flonis Asportatis (Cambridge 1913). Id. c. Title. c. Fifoot.L. 238. Sec. 7 which we shall consider the allegations necessary to show liability in the Contract Actions. In general.OFFENSIVE PLEADINGS—THE COMMON-LAW ACTIONS CHAPTER 7 TIlE ACTION OF TRESPASS1 79. Trespass. 40 L. II. 82. Account. 1949).Q. III. Jenks. Contract or Property. Ch. Holmes. 81. Detinue and Replevin. II. Itt. Practice Acts and Bules of Court. after Trespass to Rep]evin (Cambridge 1922).Q. Winfleld and Goodheart. 52 L. Covenant. XVII. c. Forms of the Declaration. Trespass and Case.Rev.Rev. c. Short History of English Law. 2 Holds-worth. 798 (1924): 34 Id. 27 W. IV. Id. Id. Declaration in Trespass—Essential Allegations: 83. The Study of Law. Contract and Tort. the Wrong and the Remedy (2 vols. NOW that we have considered in general what facts must be stated in a Declaration in order to make out a good (4) The Damages. Declaration in Trespass—Essential Allegations: (1) In General. V. Negligence. Lecture I. Equity and the Forms of Action. Interest or Possession. c. Woodbine. for it will do the pleader no good to get by the Shoal of Demurrer if he is going to wreck on the Rock of Variance. c. History of English Law. see. VIII. the plaintiff must state facts in his declaration that will (1) meet the test of a General Demurrer. Ejeetment.. in order to do this. Trespass and Negligence. on the history and development of the Action of Trespass at Common Law. Specific 1. Scope of the Action. New York 1875). The Relation of Common Law Actions. Lectures on Legal History. The Venue of the Action of Trespass to Land. Declaration in Trespass—Essential Allegations: (2) The Plaintiff‟s Right.. Ames. Status Under Modern Codes. Practice Acts and Rules of Court. Special Assumpsit and General (Indebitatus) Assumpsit. Trespass. whether in Tort.Va. eleven in number. History and Sources of the Common Law.J. Treatises: Waterman. 23 CoI. 223. 77. Declaration in Trespass—Essential Allegations: 80. Trespass (Cambridge 1948). Street.Rev. Injuries to Realty piueltnett. Early Forms of Liability (Boston. Trespass (Chicago 1948). Morgan. C. Id.L. c X. The Origin of the Action of Trespass.. 151 152 78. cause of action. and (2) which he can Prove at the Trial. Articles: Stance. Trover. Id. IX. The Foundations of Legal Liability. Lecture VI. Page 164 of 736 OFFENSIVE PLEADINGS . 128. 343 (1925). The Common Law. williams. 358—305 (4th ed. Boston 1931). XI. (8) The Defendant‟s Wrongful Act.

either actual or implied. leave and license. though in the nature of excuse for the defendant. in its broadest sense. Trespass or Case become the accepted remedy. of which the Written Records are few. of society. and the rules applicable to crime were yet to be formulated into a separate body of law.3 The early history on the Writ of Trespass is of great significance to the legal scholar as the fountain source of our law of torts. when the injury is of a direct and immediate character. or relative rights of another: (I) Where the injury was committed with force. if Damage occurs as a result of a wrongful act or omission other than a breach 3 Blaekstone. and committed on the person or-on the corporeal and tangible property. There were other tort remedies such as Detinue. since it is unfair to assume that any of them are present or to require the plaintiff to disprove the existence of each. Commentaries on the Laws of England. signifies an injury committed with violence. keeping in mind that one of our principal considerations is always. (III) In case of injury to property. c. the plaintiff is relieved from the burden of showing the falsity of the defamatory words. and the defendant must prove the truth of his slanderous utterance in defense—a rule well calculated to give a man pause in making slanderous statements about his neighbors. As the first of the Tort Actions. in general. or of the country in which we live. the injury was indirect and consequential. It was long the only Common Law remedy based on the conception of giving compensation for Damage resulting from wrongful acts. The Action of Trespass lies for the recovery of Damages for an injury to the person~ property. When. as self-defense. to protect prosecutors from the burden of attack. includes any offense or voluntary transgression against the law of nature. In a more restricted sense.2 Where. being Part Criminal and Part Civil. an act was not regarded as a tart except where it was remediable in Trespass or some Form of Trespass on the Case.In Tort Actions IN Tort Actions the plaintiff is. however. in its origin. ‘53 of contract. a peaceable but wrong-ful entry upon another‟s land. and not merely consequential. 208—209 (7th e& Oxford 1775). who is relieved on grounds of public policy. XII. Of Trespass. real or personal. In consequence. but.-if the act was of such character as to constitute a wrong for which a civil action was available. of implied violence. and here it should be observed that the two delictual remedies of Trespass and Trespass on the Case have divided between them the entire field of tort. on the other hand. which might hamper public justice. actual or implied. Trespass was dual in character. whether such act relates to a person or to his property. to allege and prove merely the nature of the harm and defendant‟s share in causing it. As yet there was no distinction between public and private wrongs. And this explains why. it. the Common Law theory of tort liability gradually began to take definite form. the Writ found its way into the Royal Courts. Enforcement of such law of torts as existed was left to the Local Courts. the remedy was Trespass on the Case. of the plaintiff. Matters of Justification and Excuse. contributory negligence. let us now consider the Action of Trespass. they supplement each other in this respect. But in Malicious Prosecution the plaintiff must negative defendant‟s good faith and reasonableness by showing malice and lack of probable cause as part of his prima facie case. broadly speaking. where constructive possession of the plain— tiff at the time of the injury. the property was in the actual or THE term “Trespass”. Of actual violence. what facts must be alleged in order to state a good cause of action? SCOPE OF THE ACTION 77. Replevin and Trover. are put on the defendant to plead and prove. (IL) Where the injury was immediate. and the law will imply violence though none is actually used. And prior to its emergence the law of torts was in a primative and confused state.4 ACTLON OF TRESPASS Page 165 of 736 . however. In Slander and Libel. an assault and battery is an example. 77 2. consent or privilege. Sec.

or if. Lecture III. or for property injuries. Lecture I. 523— 529 (Cambridge 1805). Lectures on Legal History. or abduction of the plaintiff‟s wife. in the case of injury to property. or his domestic relations. must be by an Action on the Case or Trover‟2 OFFENSIVE PLEADINGS Page 166 of 736 . 2 Polkek and Maitlarni. a tort is committed without force. even though none was actually used. Ames. and this violence may be either actual or implied. the plaintiff‟s right or interest was only in reversion at the time of the injury. c. his possession of goods or land. the Action of Trespass was descended from the old Writ of breve de traits gressione. ~ and although in its settled form it was quite uncommon in 1250. it had become common by 1272. by direct physical interference. Lecture IV. The Common Law. The Trespassers. Trespass Dc Bonis AsportaUs. 212. 476 (1772). were and are called “trespass vi et armis. or upon his real or personal property. History of English Law. In such cases the plaintiff alleged the trespass for. For a case involving this point. 100—101 (Boston 1951). and the remedy. see Chamberlain v. c. the proper remedy to recover damages is by the Action of Trespass.flve eases of appeals of different kinds are mentioned. rape. if the injury is direct. a trespass is an injury committed with violence. 3 Harv. while appeals are rarely brought. Many 154 breaking and entering of the dwelling house. Trespass will not lie. but not a single case of Trespass. 3—4. as was said.8 Naturally. and committed on the persan or the tangible and corporeal property of the plaintiff. In the „Abbreviatlo Placitorum‟ some twenty. Foundations of Legal Liability. however. let us say. or upon his relative rights.7 But the authorities have not been in agreement as to the origin of the action. false imprisomnent. assauit and battery. where the injury is of a direct and immediate kind. „The recorded Instances of Trespass in the Royal Courts prior to 1252 are very few. as the principal trespass. Lecture IV.According to Pollock and Maitland. Trespass IDe Bonis Asportatis. whether to person. Trespass and Negligence. which lay far such crimes as homicide.” As we have seen. Lecture V. 217—220 (1889). wounthn~ and battery. or false arrest or imprisonment.Rep. 9. whether committed with actual or implied force. By authority of the Writ of Trespass a plaintiff was able to secure redress for Damage done to his person. XVII. Register of Original Writs. or for robbery. mayhem. and from this time on the action is frequent. In the year 37 Henry III (1252—1253) no fewer than 1307) the Writ of Trespass had found its Way into the Register of Writs. VIII. 56 (Cambridge 1913). See article by Maitland. as where a person beats or debauches another‟s daughter or servant. Id. 5- at 225. Holmes. ~.° assault and battery.6 By the reign of Edward I (1272— 3~ 3 Street. The Action of Trespass. Early Forms of Liability. belonging to the perIod 1104—1252. 74.” Amos. the Ch. accompanied by Damage to the defendant‟s goods and chattels. such as Trespass to real estate. the earliest wrongs to call for remedy were those committed with force and violence. of the early eases Involvod a trespass to both real and personal property. 6. and then added the injury to the personal property Incidental thereto. All trespasses. Equity and the Forms of Action. and not consequential. Crime and Tort. Ames. 4. Maitland. as will be seen. either actual or implied. Holmes and Maitland tell us that Trespass originated from the Appeal of Felony. such as arson and larceny. property or relative rights. 223 (Northport 1906).” U. as where a person enters upon another‟s land. by way of aggravation of damages. 7. 2 WmML 810. or takes or merely injures his twenty-live cases of Trespass are recorded. as in the case of assault. 06 Eng. 7 goods. or the injury was merely consequential. 56 (Cambridge 1913). 3.Eev.L. 48—SO (Cambridge 1948). and the law will imply violence. 1° that is. A trespass may be committed either upon the person of another. Lectures on Legal History. Greenfield.

Randall. 1895). 145 (1804). 263. Shepherd. D. (Va. flaker. wherefore he. to the damage of the said A. And thereupon the said A. W.10. 1111921. 267 (1870). B. and beat. & B. & C. B. 79 N. Leame v.H. Harper. and Trespass to Real Property. has been abet ished.. 181 (1882). to wit. Webster. 221 (1875). R.E. the distinction. Chicago & N. Winnie. DEclARATIoN IN TRESPASS (For an Assault and Battery) IN THE KING‟S BENCH. 9 Mn. 55 III. at in the eoimty of made an assault upon the said A. 724 (1803). illInois: Frankenthal v. B.) 44 (1806). and In all cases where Trespass or Trespass on the Case has been heretofore the appropriate form of action. in the county aforesaid. Gordon v.Rep. Hard‟s Rev.. 23 Mich. and other wrongs to him there did. 6 Serg. 110. Macauley. 643 (1845). 525 (1773). 3 East 802.. between Trespass and Trespass on the Case. 20 Mich. 88 Eng. D. English: 109 Eng. Co.) 358 (1816).Rep. Clotteral v. see the following: English: Ward v. Koch. 193 (1725). 102 Eng.E. (Pa. 103 (1854). Rntherford. complains: For that the said C.Rep. 605 In addition to the cases cited just above. 179 (1899): Chicago Title & Trust Co. 4 Ani. 169 (1870). 7 P. lieznmenway. 16 III. Kaplscbkl v. (1906). B. Thus.R. In some of the states In which the Common-Law Forms of Actions were formerly or are now is Use. Clerk. . 4 T.Rep. as to the Form of Action. 41 N. 78 Page 167 of 736 . Scott v. C. Of the Proceedings In an Action From Its Commencement to Its Termination. Pennsylvania: Smith v. Virginia: Winslow v. 591. Freeman. Barry v.App. a Form of Trespass to Personal Property. 2 W. so that his life was despaired of. Sec. in the year of the reign of King George the Fourth. B. heretofore.St. 156. Rep. eitber of said forms may be used. 6.. 223 111. 272. 298 (1871). c. Co. See. to wit. Barry v. 88 Me. 420.W. 12 NW. 2 Serg. 101 Eng. & H. 108 197 I1i. D. as the party bringing the action may elect. 377 (1870). v. Michigan: Eaton v. made an assault upon the said A. by his attorney. 1 Mass. Beal. Michigan: smith v. Vermont: Claffin v. Bray. New Hampshire: Ricker v. 180 IlL 44. Gregory v. 48 Mich.) 343 (1821). Rep. 54 N. 125. Reynolds v. on the dayof intheyearofour Lord with force and arms. 76 III. I‟ . 263. 1135 (1791). prior to recent changes.BI. 220 (1829).E. known as Trespass de honis asportatis. wounded. with force and arms. 892. 273 (1896). 9. Piper. 8 Mod. Massachusetts: Adams v. Core. at aforesaid. 100 Eng. Peterson. The Forms of the Declaration in Trespass included in this section are Trespass for Assault and Battery. Cummins. and ill-treated him. 48 Mich. (1846). Camp.” See. 12 N. and against the peace of our lard the now king. Illinois: Painter v. c..Rep. 1. 13 (Williston ed. 9 Barn. (Pa. 828 (1796). and then and . FORMS OF THE DECLARATION 78. Illinois Cent It. _______ Term. 482. 152 (1915). the case of Lawry v.Bep. 157 III. . GaIt v. Wilcox. 34 Atl. ~ 36 provided: “The distinctions between the Actions of „Trespass‟ and „Trespass on the Case‟ are hereby abolished. also. 181 (1882). 96 Eng. the said C. 50 N. 18 Vt. CambrIdge..R. Stephen. 489. was attached to answer A.. Lawry. . George v. 58. of a plea. 12. in this connection. Peterson. A Treatise on the Principles of Pleading In Civil Actions. Elajoek v. known as Trespass quare clausum fregit. Call.

and converted and disposed thereof to his own use. of £ . 1859) IN TIlE KING‟S BENCH. consumed. of a plea. A Treatise on the Principles of Pleading in Civil Actions. on. B. &c.155 there beat.. and to the damage of the plaintiff of £ . B. complains: For that The said C.. in walking. B.. on the day of in the year of our Lord. 1892). chattels and merchandise as aforesaid. B. Washington. 70 (3rd Am. (Quare Ciausum Fregit) DECLARATION IN TRESPASS to wit. . p. Washington. wounded and ill-treated him. and other wrongs to the said plaintiff then and there did. was attached to answer A. and merchandise. there did. 7 ALLEGATIONS: 79. heretofore. (venue) aforesaid. to the damage of said A.C. the said plaintiff then and there intended. the said A. D. benefit and advantage which might and would otherwise have arisen and accrued to him therefrom. and kept and detained the same from the said plaintiff for a long space of time. and other wrongs to the said A. was attached to answer A. D. and being of great value) and other wrongs to the said A. £______ STEPHEN. &c. by his attorney. to wit. ed. B. C. that is to say.. p. against the peace of our said lord the king. and being of great value. of £ . then and there growing. STEPHEN. B. for certain freight and reward. and therefore he brings his suit. to wit. broke and entered the close of the said A.. wherefore he. &c. and thereby lost and was deprived of all the profits. C. B. consumed. Term. with force and arms broke and entered the close of the said A. hitherto. in the year of the reign of George the Fourth.. to wit. against the peace of our said lord the king. of a plea. and therefore he brings his suit. at &c. D. in walking. to wit. in the year of the reign of King George the Fourth. B. situate and being in the parish of in the county of and with his feet. wherefore he.. trampled upon.. there growing. D. to wit. the said C. in the county aforesaid. of the value of of lawful money of Great Britain. and spoiled the grass and herbage of the said A. B. B. of great value. then and there did. ed. DECLARATION IN TRESPASS ACTION OF TRESPASS (Dc Bonis Asportatis) ______ IN THE KING‟S BENCH. 1892). and to the damage of the said A. (Venue) seized and took a certain barge or vessel of the said plaintiff. then and there did. chattels. Term. trod down... to wit. against the peace of our said lord the king. so that his life was despaired of. . and other wrongs to the said A. a certain close called situate and being In the parish aforesaid. &c. DECLARATION IN TRESPASS—ESSENTIAL (1) IN GENERAL The Essential Allegations of the Declaration in Trespass are: Page 168 of 736 . to wit. trod down.C. 2 CHfl‟~Y. and then and there carried away the said barge or vessel. Pleading. to be therefore paid to the said plaintiff. and spoiled the grass and herbage of the said A. B. with force and arms. and with his feet. and was about to carry and convey certain goods. A Treatise on the Principles of Pleading in Civil Action. B.. &c. And thereupon. and therefore he brings his suit. 156 OFFENSIVE PLEADINGS Ch. &c. at. and to the damage of the said A. and thereby the said plaintiff was hindered and prevented from carrying and conveying the said goods. trampled upon. the said defendant. and against the peace of our lord the now king. B. D. 70 (3rd Am. _______ . D.. 861 (Springfield. of the value of and in which said barge or vessel. with force and arms.

such as an assault and battery. All that is nece~ary. or to relative rights: (A) The Title or Right of plaintiff (B) (C) The Damages. as is sufficient to sustain the action. that is. therefore. (0) For injuries to real or personal property. TITLE. covering a wrongful application of force which might lead to violence and a breach of the peace. But since the right of personal security and liberty belong to all. are probably due to its origin as a semi-criminal action. (3) In some states both a tenant at will and the landlord may sue in Trespass. (B) Specifically. (3) Describe the property sufficiently for identification. In alleging plaintiff‟s Right. (B) The Damages. INTEREST OR POSSESSION13 80. the Declaration in Actions of Trespass to Property. and a bailee at will is given the rights of a possessor. he is given the remedies of a possessor (6) Naked possession is sufficient as against a wrongdoer. or Page 169 of 736 . Real or Personal.This appears to be an exception to the rule that the Declaration in all Forms of Action should contain a Statement of the Right of the plaintiff as well as the Violation of that Right by Act of the defendant. Interest or Possession in the various Actions of Trespass: (I) For injuries to the person no statement of the right is required. or to relative rights— Cont‟d (A) In General—Cont‟d (4) The family of the owner are licensees and do not have occupancy alone. causing direct injury. or to relative rights: (A) In General: (1) The technical limits of Trespass to the party in possession. the court takes judicial notice thereof. DECLARATION IN TRESPASS—ESSENTIAL ALLEGATIONS: (2) THE PLAINTIFF‟S RIGHT. is the statement of The wrongful act of the defendant. (2) Show such possession. The Wrongful Act of defendant. there is no necessity of alleging their existence in the pleading. (II) For injuries to real or personal property. actual or constructive. hut the plaintiff‟s Title or Inter est may be generaliy stated. Trespass for Personai Injury IN Trespass for injury to the person. the Declaration need only contain a statement of the wrongful act. though for most purposes his possession Is that of the bailor. (5) possession by reason of their The owner of land not in the actual possession of another is said to be in constructive possession.(I) For Injuries to the person: (A) The application of force by direct act of defendant. or to Relative Rights should: (I) State the property or thing affected and the Title or Right of the plaintiff in relation thereto. Title. (2) Possession is to be distinguished from the custody of a servant. or with the immediate right of possession. (II) For injuries to real or personal property.

Harper.) 9. 405. and a right to irnme - 16. Macauley.) 18 (1830). Dempsey. when the injury occurred. 37 Ala. 10-1 Eng.Y. 1. 15 III. Yocum v. 162 Pa. his remedy was in Trespass on the Case. 214 (1844).Rep. not coupled with any special interest in the property. Interest. 27 MI.W. R. note 21. on Appeal the Judgment was reversed. And generally. 80 ACTION OF TRESPASS false imprisonment.Rep. Arnold.13. Brown.Y. 321. 7 „LB. Colorado: Naehtrieb v. Lormer. Rlpka v. 468. Bascom v. Pickard. (Mass. 11 Johns. Neale. 9 PIck. 257 (1890). Hall v.E. 1135 (1791). 1. refused to take and pay for It. 7 P. 1 ~7 Trespass to Prop erty—Inciuding Real and Personal IN order to maintain an Action of Trespass for injury to either real” or personal property. 1 Cole. He must have actual possession. SImpson. See Chapter 4. 409. Connecticut: Williams v. Bird v. 27 Ml. (Mass. or other agent. and the damages caused thereby. 4 iJ. (Pa. by Way of Title.W. 181 (1857). Gordon v. Henipstead. where it appears that he gave the latter only a bare authority to carry or keep.W. Tobey v. Connell. 11 PIck. 160 (1889). does not necessarily part with his possession so as to prevent his maintaining Trespass against a stranger. 828 (1796). (Pa. and the defendant. or the right to immediate possession. Illinois: Halligan v. 405. 423 (1872). (N. 3 Day (Conn. Massachusetts: Ayor v. 6 So. coupled with an interest. 8 Pick. 25 FIn. and possession. Wisconsin: Gunsolus v. 170 Rng. 257 (1890).‟-~ The rule applies equally to an Action of Trespass by a bailee who had an authority. 2 Doug. if the owner of personal property merely permits another gratuitously to use it. who parts with custody thereof. Rep. English: Ward v. the general owner of personal property.Y. Shotwell.) 235 (1828). 744(1887).Y. 100 Eng. MIchigan: Finch v. Brantley. at the time the injury occurred. having a right to retake possession at any time. New York: Campbell v.) 535 (1811). „ 7‟ English: Gordon y. Alabama: White v. Keyes. 4 P.) 498 (1807).Dee. 16 East. Van Brunt v. This is true if properly understood. 185 (1893). The person who has the absolute or general property interest „~ may maintain the action. Koebler.) 352 (1831). BrIan. 1350 (1812).‟° A General and Special Property interest IT is frequently said that an Allegation of a General or Special Property Interest is sufficient to support an Action of Trespass. (N. 44 Mich. Holland.flec. 778 (1894). 187.Bep. 44 N. (N.W. (N. Cone. 0 N.Marsh (Ky. 465 (1845). 7 Watts. (N. 160 (1889). Illinois: Topping v. Lewis. 630. 158 Pa. Thus. 346 (1811).) 156 (1829).) 382 (1858).) 377 (1814). Wilkinson v. Winship v.Dec. 43 Ain. 7 John~. & S. ~S.) 468 (1808). 62 (1882). Minnesota: Moon „cc Avery. v. 81(1880). 101 Eng. Florida: Bucki v. 209 (1871). of course. 46 Mieh. and. after consuming a part of It. Putnam v. 480. merely in reversion. Beaumont. 54 Wis. 13 Me. 33. 126. 828 (1796). 9 N. 44 N. servant. Stout v. the plaintiff had left meat at the defendant‟s house under an agreement for Its sale. though. 5 Am. I. supra. 85 Me. Florida: Bucki v. Minnesota: Moon v. Brian. Kentucky: Daniel v. 28 Pa.15 the plaintiff must allege.) 184. Franks. 517. 7 Watts & S. 9. 430 (1861). 42 Am. Michigan. for a discussion of legal concepts of right. Goetchins v. Chicago & H. 1 Johns. 58 III. 870 (1893). Dickinson. Zahner.Itep.) $11 (1806). Evans.) 14 (1844). 25 FIa.R. 101 Eng. flitchie.Y. Pennsylvania: Fitler v. Stoner. 1001 (1812). 12 N. Maine: United Copper Mining & Smelting Co. Avery. 3 Johns. 553 (1854). Co. 3 Page 170 of 736 . 10 Gray (Mass. Wyley. 236 (1836). Schenek.R. 42 Minn. If his right was 14. The lower Court sustained an Action of Trespass for such consuniption. Gone. PennsylvanIa: Schnable v. that he was in actual or constructive possession. 330. 0 So. Harper. In Pinch v. W. 9. 29 AU. Massachusetts: Lienow v. 42 MInn. Maine: Lunt v. Sergeant. Sec. not Trespass. (Mass. S Johns. he may sue a stranger in Trespass for an injury done to it while it was so used. Bertie v. Bartlett. New York: Carter v. (MiCh. he had parted with the custody to a carrier. 437 (1881). Parsons v.7 N. 143 Mass. 3 Camp. Sanborn.. Webster.) 432.

) 244 (1823). 24 Axn. 7 Conu. 1084 (1772). was a sufficient Allegation of Title to support the action. Ilackliam V.) 141 (1816). 13 Me. S Camp. 13 (1848).flay (Gonn. 235 (1828).) 432. 1350 (1812). By an anomaly of the Common Law. 88 (1860). 59 Pa. 1219 (1810). must allege that he Ward v. for. 170 Eng. (Mass. Harper. New Hampshire: Lane v. It English: Lotan „cc Cross. Shotwell. 760 (1797). (Mass.Am. Pennsylvania: Fitler v. 158 Ch. the owner‟s right is merely in reversion.Dec. A tenant at will or a bailee at will has possession as against the public in general. HaIl „cc Plekard. & Pu). 101 EngJtep. Maine: Lunt v.) 14 (1844). 101 Eng. with Precedents and Forms. 9 Scrg.Dec.ltep. is yet regarded as having legal possession rather than mere custody and hence may sue a trespasser. 40 N.) 233 (1845). English: has no possession.1 Chitty.) 432 (1811).) 272. Vermont: Edwards „cc Edwards. Hammond v. (N.) 352 (1831). A servant or agent is denied the rights and remedies of a possessor. 11 Johns. though for most purposes his holding is the possession of the owner. Smith. 332. in order to maintain the action.Y. however. or at least some independent claim of a limited or temporary interest. There can hardly be such a thing as possession in law. Of the Forms of Action. entirely at the orders of the bailor. New York: Putnam V. 10 (13413. (N.sum Fregit Page 171 of 736 . a subservient bailee. 972 (1812).19 These cases involve a constructive possession. 170 Bug-Rep. Dolbeare. (Pa. 878 (1796). (Pa. Treatise on Pleading and Parties to Actions. 2 Camp. Illinois: Cannon v.R. or any other possessory action. Harper. 11 Pick. Gordon v. 7 TB. The gist of the action of Trespass quare clausum fregit is the injury to the possession. 305 (1858). 187. 7 P. 95 Eng. 1001 (1812). 30 Vt. but the servant is not. nevertheless. 1135 (1791). Brown. and the general rule is that the plaintiff. (Pa. and the bailee. Sumner. 221. and having the bare custody of the goods at the time they are injured. 48 Me. Hall -cc Pickard. Buckley v. the bailee is allowed the p05-sessory remedies.Y. 9 Pa. who holds.Dec. Dolbeare. Martin. like a depositary for storage. Talinndge V. 170 Lag. 5 Vt. because his acts 23 are the acts of his employer. Massachusetts: Parsons v. (N. Rep. e. 16 East. Jesup. 9 Mete.H. Adams. Becker v. the owner of personal property parts with possession of it.) 323 (1843). 587. as we have seen in the very beginning. also. 1 Bos. SmIth. at the time when it is injured by a stranger. Dailam v. Thompson. and not Trespass.R. 1115 (5th Am. and his remedy is by an Action on the Case.Dec. Smith v. 6 Watts & S. 7 Conn. 1350 (1812). 187. like a servant. (1808). 190 (16th Am. Plimpton.2‟ OFFENSIVE PLEADINGS The Agent or Servant Acting in Behalf of His Principal or Employer A MERE servant. North V.H. entitling one to the possessory remedies. 3 Scam. Eveleth. Pennsylvania: Glllett „cc BaIl. (N. Wyley. New York: Putnam v. 2 Saunders. 126 EngRep.Rep. although he did not have the actual possession at the time of the injury. 469 (1868). 7 Watts & S. Vermont: Strong v. 5 . 7 diate possession. 464. Vermont: Sopor v. Ill. Rep. by Perkins. 33. 30 Vt. Massachusetts: Muggridge v. New Hampshire: Wilson v. Dickinson. 470 (1861).rtep. 8 Johns. cannot maintain Trespass. 20. 333 (1858). 21. 3 Am. 346 (1811). Trespass to Real Propefly—Quare Clau. 45. the following cases: English: Fowler V. 11 Vt. See.22 While there appears to be no very substantial distinction between the custody of a servant and the possession of a depositary at will. in contemplation of law. ccl. acting in behalf of his employer. WITH a few exceptions what has been said with reference to alleging Title in Trespass to Personal Property applies equally in alleging Title to Real Property. 828 (1796). & B.2° If. Maine: Staples v. Philadelphia 1851).Rep. Kinney.Y. II. 43 N. 269. 9. Gordon v. Thorp „cc Burling. S Johns. 274 (1833). which. 38 Pa. 320 (1861). 711 (1839). and hence the rights which he represents are those of his employer. 104 Eng. has the exclusive right to its use. 489.) 285 (1814). 3 Wils. Springfield 1870). Wyley. 104 Eng. 236 (1836). 3 Camp. Plomer. Law of Pleading nnd Evidence in Civil Actions. Seudder. Maeauley. Fitler. Turner.Rep. Down. 235 (1828). Connecticut: Bulkley v.Y. 1~ East 607. without a claim of Title. 9.Gelston. 13 Johns. New York: Hoyt v. 100 Eng. actual or constructive. 4 T. he 19. 517 (1861). Bertle v. ccl. 73 Am. Beaumont.

The Action of Trespass.) 321 (1835) Massachusetts: SDarhawk v. of a householder.Y. The situation of the wife would appear to be like that of 28. Campbell v. 456. the defendant. 839 (mOD). Ritchie. 603 (1516). A. 59 N. New York: Russell v. 4 macId. Starr The mere occupancy of land by a hired servant of the owner. Principles of Pleading in Civil Actions. Tobey v. Daniels v. possession ing. (N. Oatmarz v. I Johns. Pond.28 In some jurisdictions it is held that Trespass will lie in such a case by the landlord if the tenant in possession was merely a tenant at will. . at 623 (1915). 269 (1838). 625 (1880).) 179 (1836). the family or servants. Illinois: 24.W. 520 (1814). 535. 456. In such case the possession is said to be constructively or actually in the owner. without paying rent. Michigan: Carpenter v.J. The Nature and Importance of Legal Peasession. even where Trespass would be the proper remedy if the landlord himself were in possession. 314 (1018). Claim of Title In Adverse Possession. In general. Possession. 2 Yeatea (Pt) 210. as there is no claim of title or interest on their part even at the time.) 183 (1815). (N.Rep. even during the absence of the owner. (MS. Holman. 13 Me. 7 Gill. III. Handbook of Common-Law Pleading. Wickhaln v. & J. 87 (1830).lJea 340 (1798). ACTION OF TRESPASS Indiana: Bucker „cc MeNeely. 983 (1901). Moore v. and not Trespass is the remedy by the landlord for an injury by a stranger affecting the inheritance. Vermont: Ripley v. 3 Berg. by Tyler. It is submitted that the court overlooked the point that occupancy and residence are not possession. I Johns. e. 189 III. (Mass. Fowier. Bloss v. Their occupation is regarded as entirely subordinate to and in the name of the owner. Eingham. since the landlord has such a constructive possession as will sustain the action.Y. (Mass. 25.) 61 (1812). (Md. PennsylvanIa: Alderman cc Way. Eagle. on the subject of possession. Sbipman. do not have possession. if the plaintiff‟s right was merely in reversion. 484 (1871). Rules of Pleading. in the opinion of the court. Ballantine. Paul 1923).Dee. The Plaintiff‟s Right or Title In Trespass. Pease v. 59 N. Owen 52. Webster. Matber v.) 511 (1806). Maine: Bartlett „cc Perkins. and in some states even if a tenant at will. it was held that she had sufficient possession to maintain Trespass.) 279 (1828). 40 Mich. and he may maintain Trespass as if he had been in actual possession himself?0 Likewise. see: Treatises: Martin. 219 (1919). Missouri: Roussin v. § 4. Arnold. 21 Me. Rh-a.) 235 (1829).E.3‟ A Wisconsin case 32 illustrates a questionable failure to apply this doctrine. Id.28 and the same ruling has been made in other states.E. ~7 but in New York the contrary was held on the ground that. 9 Johns. 74 Eng. Paul. 9 Cow.Y. 350 (1342). St. the guests or lodgers. unless under a Claim of Title of some sort. 4 N. 80 159 the time the injury was committed.L. B. New York: Stuyvesant v.) 468 (1808). Scott.) SU (1806). other than a tenant at will. It appeared that B. the husband of the plaintiff.) 509. § 37.Y. English: - 893 (1551). Ditto. e.) 218 (1805).Rev. 21 Mass. Yale. Stephen. 257 (1844).43 Mich. Trinity Church. 592 (1840). Pfistner v. had committed a trespass during the absence of C. 28 Yale L. 13 Mieh. Jackson. New York: Campbell v. 3 Johns. (N. on the theory that she was in the exclusive occupation of the premises in the absence of her husband.) 367. ed. 6 Mo. 23. his remedy is by an Action on the Case. Arnold. 43 „Vt. 256 (3d Am. 1893). in fact was necessary. 4 teates (Pa. 983 (1901). 25. (NY. S Pick. Pennsylvania: Torrenee v. (md. Where the land is in the exclusive possession of a lessee. 8 Am. Bagg. 75—82 (3d ed.Dec. SmIth. e. Massachusetts: Lienow v. 1 Ain.L. Case. 21 Pick. Page 172 of 736 . Freeman. 13 Ill. (N. Civil Procedure at Common Law.Rev.) 583(1860). (Pa. not Trespass. 1905). the wife. Ditto. Articles: Terry. 32 Am. Possession implies some claim of title or independent holding. by Ballantine. A Treatise on the Sec.25 As in the case of personal property. Benton. Moore. 16 Vt. & B. C. Of the Principal Rules of Plead- * 268 (St. 14. Illinois: Pease v. Tompkins. 12 Johns. Irwin.2° 17. 189 III. v. Maryland: Dorsey v.was in actual or constructive possession ~„of the realty at 22. 16 Gray (Mass. XIII. is not possession. II. Washington. In an action by A.

his wrongful act terminates the tenancy. 18 Pa.Y.29. 3 McOord (8. Dolbeare. 115 Ill. (5th ed. 16 East 33. Cohoon „cc Simmons. 1 Johns. Wilcox v. 16 Cray (Mass. 631.C. Trespass (C) 3. 1 v. B. while it was in the actual and lawful possession of the wrongdoer. 137 (1855).&m.Rep. ConnectIcut: Bulkley v. 85 Ill. 11. Possession. Skinner v. BotchkIss. for example. but is submitted that it is not a realistic explanation of what actually happened. 272. 370 (1877). 1 Stew. 3 McCord (S. 7 cannot be constructive possession of land by the holder of the Legal Title where third persons are in actual adverse possession. A Treatise on Pleading and Parties to Actions. 20 N. 28 Yale L. 314. Brnnamon. the following eases: English: King v. 3 Seam.) 422 (1826). English: 3” See Ft.ama: Gillespie v. Illinois: Dean v. Ballnntlne.Rev. Kottler & Reppy comLaw PIdg. 11 Johns. 2 l4oft & MeC. 138 (1851).E. Kinzle. and render him a Trespasser Ab lnitio?7 Thus. 25 Pa. 14 Harv. Woosley. Dearborn Lodge v. II. 621 (1890). (Ala. 177. At Common Law the Action of Waste was not available against a tenant at Page 173 of 736 . Illinois: Kankakee & S. Wheeler v. 17 Mass. 863 (1909). Property: Statute of Limitations—Title to Land.J. 7 Mo.) 229. with Precedents and Forms. 10 Cona. 0 Bacon.) 511 (1800).L. (N. Wiekbam v. by Perkins. 4 Bibb. 35.0.Y. Wood. Of the Forms of Action. 38 This is what some of the English and American Courts have held.AJat.) 68 (1819). 29 N. 3°. he cannot maintain Trespass. See.) 385 (1814). 18 . New York in particular. Bagg. Arnold. although this may be rebutted. 12 Johns. for an abuse of his possession may ipso facto terminate his possession in the eye of the law. 761 (1900).35 If no one has actual possession. (N. 56 Am. 389 (1901).5—7 32‟ Bieri v. 83 N. See.33 In England and in some of our states.0. B. 3 N. Pennsylvania: Clark v. 219 (1919). 162 (1841). and Trespass quare clausuni fregit may be maintained against him by the landlord or reversioner. 5 East 485. Le. 32 Ill. Thayer. (8. and note. and hence unless the plaintiff had the actual possession by himself or his servant at the time of the injury. 197 (16th Am. that in the case of real property there is no such constructive possession. 549. does not apply to real property. 288. Claim of Title in Adverse Possession. New York: Campbell v. . Cairo & St. Co. however. South Carolina: Davis „cc Clancy. Bertie v.C. 633 (1915). and the owner of Land not in the actual possession of another is given the remedies of a possessor. 23 N.) 183 (1815). B. Kentncky: Fish v. Bonn. Arkansas: Ledbetter „cc Fitzgerald.) 379 (1842) Walton v. ed. 13 IlI. 27 LU. ~lng. V. Watson. Chitty.Dec. Springfield 1876). Klein. Clarke. The presumption is that the joint occupancy of husband and wife is the possession of the husband. New York: Van Brunt v. 150. Collins 34. 120 NW. McDowell. London. llfassaehusetts: Spathawk v. Bingham. 189 (1847). applicable to personal property. South Carolina: Davis v. Fonger. 1156 (1504). (IlL) 218 (1841). c. by Gwilliin. 1001 (1812). 246. New Abridgment of tile Law. 721. it has been held that if a tenant at will commits waste. 448 (1839). 477. 104 Eng. Schenek. real or personal. Smith. 299 (1821). 42 (1827). The Nature and Importance of Legal Possession. also. 320 (1918). 1798). it was held that the rule that the general ownership of property draws to it the possession. 131 III.LRev. (Ky. Missonrl: Davis v. Pennsylvania: Baker v.e. North Carolina: Dobbs t GuIlidge. but there 33. St. 37 Am.Bep.3~ Where Land is in the Actual and Lawful Possession of the Wrongdoer—Spec~ficatly the Tenant at Will IN some cases Trespass may be maintained for an injury to property. Lynch.Y. 2 tMon. Comstock.Rev.L. 173 (1863). Freeman. 232 (1828). 139 Wis. Allen v. Cli.34 In most of our states the rule is otherwise. 13 Mlch.) 218 (1815).) 422 (1826).) 583 (1860). (N. v. I Ark. Dew. Beaumont. 157 Pa. W.Rep. Co. Clancy. also. Ford cc Schuiessman. 102 Eng. 723 (1893). 554 at 566. 107 win. possession is restored. OFFENSIVE PLEADINGS 160 a servant or licensee or guest. 225 (1834). 197 (1535). the owner of the Legal Title has constructive possession. Compare. (Ky. the articles by Terry. 133 (1885). 7 Conn.Rep.

4‟ In consequence of this development. 38. a fiction was coupled with the Action of Trespass to bridge a remedial gap.Dec. BuggIes v. 2 Caines (N. The Court declared: “Any possession is a legal possession against a wrongdoer. Sec the following cases: English: \Voodward v. In reality. also. 127 37. as we have seen. 1 Chltty. in which Trespass was held to be the proper remedy for seduction of a daughter. (N. 61 Mich.) 292 (1805). Massachusetts: Daniels v. 95 (1801).Eep. New York: 30. 25 (1860). Dawes. II. 436. for an injury to the property which is 44 in his possession. since the appearance of the Assize of Novel Disseisin.Y. Cro.Am. Of the Forms of Action. 32 . even after the wrongful act. to wit. Bond.) 367. without any other Title. A Treatise on Pleading and Parties to Actions.Th. Peat. 1 East 244. 105 Eng Rep. 78 Eng. as in the tenancy at will. „taylor v. West v. a person having an illegal possession may support this action against any person other than the true owner. Spaulding. 187. (N. It is not surprising then to find that Trespass. it be came e~tablished law that a mere naked possession. 764(1602). By his wrongful act of destroying the trees. a tenant at will committed waste—let us say be chopped down the century old shade trees in front of the mansion—the landlord demanded a remedy. PlñUips v. the finder of an article may maintain Trespass against any person but the real owner.&m. „cc Peat. 79 Eng. New York: Akerley „cc flames.) 1 (1810).H.willY° When. Suffern v. 400 (1857). What happened? They took the Action of Trespass. dec14-ed Just twenty years later. The law protected one in possession of real property in order to prevent breaches of the peace.W. was avail 38. Cavanaugh. 472 (1864). and. 80 161 able only for the protection of an actual possessory interest. 127 Eng. by Perkins. one forcibly ousted from his possession could be summarily restored to his possession. (1886). Somewhat the same sort of development took place when Trespass was originally permitted as a remedy in the seduction cases on the theory that the wrongdoer has interfered with the master‟s possessory interest in his servant.) 35 (1812). does not require a Legal Title to support it.ltep. & Pul. 443 (1814). 4 Mien. the de facto exercise of dominion over property. (NS. who then proceeded with his Action of Tres pass. 2 Msule & 8. his daughter. In the case of Graham v. 269 (1838). 21 Pick. with Precedents and Forms. 715 (2807). Sec. 2 Bbs. Under the early Common Law. 200 (16th .. the tenant at will remained in actual physical possession. 102 Eng. even where 4. Cro. Covert.Eliz. until Case came in as a remedy for the 4 indirect consequential injury to the father resulting from the seduction of his daughter. e. Drew v. the remedy was by Writ of Right. 368. and. There was none at the time as the Action on the Case was not yet in being.Car. or more specifically. In which the Court held that Trespass on the Case was the proper action. Jones. Ditcham v. Townsend. 45 N. ° A Mere Naked Possession as Sufficient Title Against a Wrongdoer SINCE the days of the Ancient Real Possessory Actions. 42. See Chapter 2.” Possession is a sufficient Title to the plaintiff in an Action of Trespass vi et armis against a wrongdoer. or even the general owner. Graham Page 174 of 736 . the tenant terminated the lease at will. 784. ACTION OF TRESPASS the possession.The Development of the Common-Law Forms of Action. if the so-called Title.Rep. being an interference with 40. O‟Brien v. therefore.Rep. 1014 (Mass. Walton.43 A bailee may maintain Trespass against a stranger. and to say that the act restored possession to the landlord was a pure fiction—a fiction which continued in operation until the Action of Trespass on the Case came into operation as a Remedy for injury to reversionary interests. Safford V. restored the possession to the landlord. Treucle. which in legal theory. Barso. 40 Mien. Pond.Y. 28 N.) 412 (1825).Y. ed. See. was involved.) 476. and stretched it to fill a temporary remedial gap. Sands. 9 Johns. and Moran ‘c-. is 42 sufficient as against a wrongdoer. 559 (1879). (N. the authorities argued. 4 Cow. 42 N. the following cases: English: Countess of Salop „cc Crompton.Y. 7 Johns. Springfield 1876). In this instance. which was only an older possession.

Stroother. A Treatise on Pleading and Parties to Actions. 35 Barb. by Perkins. 163 (3540).Rep. 59 (Cambridge 1913). Potter „cc Washburn. 230 (1844).W. English: Rackham v. & AId. Rep. 58 Iowa 694. OFFENSIVE PLEADINGS he had not the actual possession. Wilbraham v.W. 05 (1801). Wilsey. & AId. 18 Coke 67. 35 NW. 6 N.flep. See. 225 (1880). e. O‟Connor. Lambert v. 22 (1817). See. according to some of the authorities. Minnesota: Witt V. 43 N. 24 Me. Peat. 46. L. Thacher. Of the Forms of Action 190 (16th Am. 488. Cheasley v. Murrill. Heydon & Smith‟s Case. 1541. Donaldson. Illinois: Shoup V. MaIne: Moore V. Chambers v. Sturtevant. 547. 146 Mass. Trespass De Bonis Asportatis. but it is not essential that it should. 170 Eng. 600.Y. 102 Eng. (N. 59. 43 N. (III. 13 Vt. Snow. 103 Eng. 13 Allen (Mass. 85 Eng. 1 Am. Barnes. Illinois: Illinois & St. (N. 7 Mo. 37 Ani.E. Cobb. Peat. Hoff- Page 175 of 736 . 2 Bailey (S. Burke v. 41 Minn. Booth v.Y.) 565 (1869).Y.C. Willes 221. 6 N. 1 Barn. 125 Eng. a person professedly in possession as a mere servant cannot maintain Trespass. if he had the right to take immediate possession. 21 Me. Rep. Minnesota: Laing v. at sufferance. Ferguson. Iowa: Welch v.) 141 (1816). Wilson.43. 1257 (1511).W. South Carolina: Jones v.flep. 3 Wils 332. Nelson. Tennessee: Carson V. Rep.47 Actual and exclusive possession without a Legal Title is sufficient against a wrongdoer or a person who cannot show any right or authority from the real Owner. ed. 141 Mass. Harrington. 6 Vt. (N. Booth v. Graham v. Webb v. Gelston. Cook v. Collins. (N. 0~ Rug. since he had the constructive possession. 626 (1070). also.Dec. 137 (1868). 2 Camp. 3 Mete. II. 350 (1842). Thatcher. 44 Mich. 2 East 244. W.) 298 (1861). 183. 41 Minn. Springfield 1876). I Scam. & Aid. or even againsf his landlord. North Carolina: Myriek for example.C. Decker. New York: Hoyt v. Moore. See. 13 Johns. 581 (1888). Irwin. 17 Wend.12 N. IV. 23 N. 558. 476 (1539). 1 Chitty. Lectures on Legal History. 55 (1879). Kendall. by Perkins. Lltehfield V.5‟ at will. 103 Eng.Rep.4° As we have seen.Rep. 444 (1812).) 139 (1834). v. has been sustained by a tenant in possession under an illegal lease. The quantity or certainty of the bai]ee‟s interest is immateriaL45 Even a mere gratuitous bailee may maintain the action against a stranger. who had not been treated as such by the government. MI clilgan: Fox v. 575. ed. Jesup. 703 (1808). 106 Eng. Jenks. Shields. 38 Minn. Collick. 6 Cold.B.W.) 01 (1837). (Tenn. Cobb. 1 Chitty. 1054 (1772). 116 III.E. P.M man v. S Allen (Massj 520 (1864). Lecture No. 476 (1889). 13 Wend. 1 Barn.) 466 (1831). 862 (1888). what has been said as to mere naked possession with reference to Trespass to Personal Property applies to Real Property. Newcomb v. Of the Forms of Action 195 (16th Am. Massachusetts: Hubbard v. 1347. 95 (1801). In general. 04 Iii. 117 Eng. Hendricks v. Paul & N. Butts v. 69. Maine: Barker v. SprIngfield 1876). with Precodents and Forms. Lyman. 4~. Massachusetts: Inhabitants of Barnstable v. Minnesota: Laing v Nelson.Bep. 32 Mieh. Dyson v. 815 (1841). ~ Graham v. 48 English: by an intruder on public land. 5 Barn. 10 East 73.Y. 1 East 244. the Title may come into question. 521. Rep. Chatteris „cc Cowper. 609. 4 Taunt. Howard. 59. 55 Mieb. 97. Coiwill cc Reeves. 1310 (1822). Railroad & Coal Co.52 or. 620. II. fly. flolcomb. 727 (1882). Nickersou v. Adams v. 494 (1875).) 239 (1841). 48 Trespass. Iowa: Welch „cc Jenks. 47d. where a right of entry was not expressly or impliedly reserved to the latter.Rep. also. also. 721 (1886). ~Vi1son. St. Rep. In an Action of Trespass for injury to Real Property. 122. Savage. English: 47. 22 (1817). 58 Iowa 694. 502 (1886). McNeil. 12 N. 102 Eng.Rep. 106 EnglIep. A Treatise on Pleading and Parties to Actions.53 may maintain an action against a stranger. 521. (N.Rep. 727 (1598). 11 East 65. Missouri: Richardson v. 1141 (1740). 515. 6 N. North Carolina: Horton v. Hammer v. 16 N. with Precedents and Forms.) 276 (1816). Vermont: Fisher v. Ames. 77 Eng. 44. Hens]ey. 1345. 66 (1885). 106 Eng.Y. 100 Mass. 037 (1852). Prater. 55 And a tenant for years. 2 Saund. (Mass. 17 Q. c. Chase.) 182 (1835). 18 Johns. 22 NW. 928 (1809). 622 (1834). 128 Eng. Brlerly V.. 333 (1842).E.) 408 (1866).

6 Am. Wisconsin: Gunsolus v. Michigan: Lorman v. (Pa. 61 Mid-i. Peat. 108 (1840). Cavannugh. Stone. Geary V.L. whether the property was real or personal. 1208 (1614). 7 163 Where the plaintiff was not in actual possession.Rep. & C. 5~. bile. 107 Eng. Massachusetts: Dickinson v. He must allege such a Title as thaws to it the constructive possession. Wood. Templeton. 12 Neb. Heydon & Smith‟s Case. Dickey. SO 162 Ch. 28 NW. (N. (Mass. (Mass. 80 Wis. 23 Coke 69. Nebraska: Keith v. 1476 (1610). ~ 2 RolIe. Aldemon. that is. Abridgment 551 (London 1668). Grover. New York: Wilde V. also. Hyatt V. the injury can never be considered as Trespass. 1148 (1660).Rep 994 (1709). Goodspeed. 150 (1841). (Ill. but relies upon a constructive possession to maintain his action. 11 Vt. 1 Johns. Marshall. Shrewsbury. 19 Pick.) 147 (1843). 77 Eng. Maryland: Dorsey v. 347. 209. Sparrow.Dee.) 123 (1800). Gilmer (Va. Graham ~°‘ v. 4 Johns. 173. 435 (1860). Lowell. Curl V. Graham v. (N. Meader V. 347. 8. 82 Eng. 127 630. the following eases: English: Geary v. 77 AmDec. 66 Vt. 82 Eng. Barecroft. S Cush.Bishop. 62 Wis. 1174 (1825).) 283.) 147 (1843). Illinois: Wincher v. 411 (1812).Dee. 8 Am. New Jersey: Van Doren cc Everitt.Dee. 7 Gill & J. Rep.58 or a navigable But. Sid. Sid. 11 Coke 48.Rep.Rep. Dormer. AtI. 485 (1821). 803 (1884). 5~‟ 2 Rolle. 271 (1882). Maine: Bryant V. tlce. 12 N. 574. 368. Anonymous. Michigan: O‟Brien v. 615 (1819) Pennsylvania: Stulta v. Langdon v. 62 (1882). Geary v. 88 Zng.Itep. Meader v. the following eases: English. Peat. Cantillon. (Mass. Bayley. 18. Hall v. Barecroft. 4 Barn. 1148 (1866). Abridgment 551 (London 1668). 13 Pick. Barecroft. he cannot maintain the action against his landlord.) 321 (1835). 521 (1539). Page 176 of 736 . 866 (1894). 1 East 245. 77 Bag. He must at least show a right to immediate possession and the absence of adverse possession}~ ACTION OF TRESPASS Where the Property or Right injured is intangible WHERE the property or right injured is intangible. Virginia: Faulkner v. but the remedy must be by an Action on the Case. See.Y. Abridgmont 551 (London 1668). note a. 8. 2 (1886). 95 (1801). for instance. Vermont: Ralph v. Massachusetts: Sampson V. 21 NW. where the oVmer of the right does not own or possess the way itself. 8cc. ii Mod. 2 Scam. 589 (1891). Chaffee. Tilford.W. Stahl v. (Mass. 52. 13 Vt. 28 V. 650. 7 Mete (Mass. not involving possession. 347. Llford‟s Case. Henry. 50 N. 54 Wis. 57 Nor will it lie for obstructing a public highway. 546 (1873). 1148 (1666). Wisconsin: Newton v. for obstructing a private right of way. English: Harper v. 4~. 102 EngRep. Stone. if a tenancy at will had been terminated by no. Eagle. 95 (1501). 460.Rep. title becomes very material. 8 Mich. Y.2 Engsep.) 150.) 285. English: Sec. 5° Trespass will not lie. 102 Eng. 62 Me. and the tenant had merely remained in possession.W. Charlesworth. also. It has generally been held that a tenant at sufferance cannot maintain the ad-ion against his landlord. 7 Mete. Benson. 1 East 244.) 36 (1532).) 25 (1837). 5 NJ. (Md. SId.) 221 (1821). 5 Bin.) 119 (1851). 35 Am. 8 NC.

) 124 (1835). but is merely entitled to the use of water. Title. 477.) 283 (1846). 67 111. Lindsey. 39 RI. English: 6L 164 Wilson V. 29 Pa.” 63 It is sometimes said that constructive possession is sufficient. 78 Mich. Sassaman.) 383 (1817). 440 (1841).Y. Petroleum Co. 2 Barn. 773 (1815). 31 Leg. or Title Coupled with 89.) 90. & Ado]. Bliven Petroleum Co. 258 (1809). 85 Ill. and under that pleading any evidence showing sufficient right and interest to maintain Trespass is enough. 307 (1824). It is suff 1-cient to „say that the goods were the goods “of the plaintiff” or “that he was lawfully possessed of them as of his own property. 10 Phila. 6° Case and not Trespass is the remedy for diversion of or other injury to a water course. The Wrongful Act must be a direct application of force. Tnt.Dec. Rep. 598 (1864). 620 (1824). Thompson. Wiswall. McCormick. or for interference with any other mere easement. Pennsylvania: Overdeer v. as by obstructing SB. Wiswall. 5 Denio (N.llep. English: 60. 514 (1850). PennsylVania: Dietrich cc Berk. 24 Pa. and is given the rights and remedies of a possessor. Park.Rep. Alabama: 18 Am. 1079 (1831). 470 (1855). notwithstanding the fact that the property was the means by which an incorporeal right was enjoyed. Williams V. 1 Stew. Lambert -cc Hoke. and to show the plaintiff‟s Right.6‟ Where the injury is to corporeal property. 44 NW. New York: Lansing V. Hart V. Morland. 372 (2874). Michigan: Bellant v. river. although the dam is the means by which a franchise granted by the legislature is exercised.Y. 370 (1ST?). 93.Dec. Smith. something that might cause a breach of the peace. English: Bose v. 105 Lag. Codling. 37 Am. (Pa. 72 Pa. Dew. 329 (1880). 2 Barn. V. 22 (1857).59 causing Special Damage to an indiVidual. Okeson v. Rep. H. or body of water.Y. where the plaintiff is not the owner of the soil. 42 (1827). Thus. But compare Traugei. Co. 130 Eng. 3 Denfo (N. DECLARATION IN TRESPASS—ESSENTIAL ALLEGATIONS~ (3) THE DEFENDANT‟S WRONGFUL ACT OFFENSIVE PLEADINGS 81. Illinois: Ottawa Gaslight & Coke Co. English: light and air through ancient windows by an erection on the adjoining land.Y.~ Stating the Right of the Plaintiff IN Trespass to Lands or Goods.St. New York: Blunt v. By constructive possession is meant that a person entitled to possession is treated as if he had actual possession.) 213 (1848). or Actual Possession Coupled with Title. Patterson.Y. Trespass lies for an mmediate and forcible injury to person or property by an intentional or negligent act. 109 Eng. The injury must be immediate and not merely consequential upon the defendant‟s act. 2 Blng 263. 4 Maule & ~. „cc Woosley. Jones v. Brown. 55. Greasly V. 14 Johns. L. 56. & C. PennsylvanIa: Lindeman V. Possession alone is all that needs to be proved. it is necessary to describe the property affected. 1 Whart. Thus. destruction of a dam is a trespass. I Watts & S. the Declaration must allege the property to be the plaintiff‟s. Hill. 629 (1873). (Pa. 8 Am. 14 Pa. Interest or Possession. Ch. Lewis. Illinois: City of Pekin V.) 165. however slight. (N. (Ala. Breretori. 69 Pa.. 101. (N.) 229.Dec. V.) 213 (1848). 5 Denlo (N. 7 a Right of Immediate Possession.v. It will be sufficient to prove Actual Possession without any Title. Miles. 910. Union 57. 173 (1872). whether real or personal. Shacicrell v.4 Am. (Pa. Page 177 of 736 . jluteJiin$on. 16 Am. 107 Eng. 6*.Rep.) 324 (1833). 219 (1571). 10 Wend. or at least in the plaintiff‟s possession. New York: Lansing v. Gillespie v. 294. 97.Rep. Illinois: Cairo & St. It is sufficient to plead ownership. an Action of Trespass is the proper remedy.

13 Johns. 66.°6 or carrying away goods. & W. there is a forcible injury to the man‟s relative rights. Guille V. 322. If a person‟s cattle stray upon another‟s land. 403. Trespass will not lie for Malicious Prosecution. in which It was held sufficient to allege ownership in trespass for Injury to a colt. or seduced or debauched. 66. 8 Mees. 9 . Or. or master may maintain Trespass against the wrongdoer. Swan. in the case of the injury to property.Y. Bush. 269 (1838). 234 (1822).Y. and trespass will lie.~ Force is also implied in every false imprisonment. & W. Dec.) 369. Trespass will lie for Abuse of Authority of Law.Dec. 641. In order to maintain trespass for an injury to personal property. and an injury that was Direct and Immediate upon the defendant‟s Act. Dolph v. 1170 (1841). The Declaration must state the wrong or injury violating the plaintiff‟s right. Goddard. ples of actual force. the plaintiff was in actual or constructive possession. 67. 151 Bng. ACTION OF TRESPASS knee.) 385 (1822). 58. and in these cases there is no difficulty in determining that Trespass is the proper remedy for the immediate injury resulting from the wrong. and Trespass will lie therefor. 44 Mc. trespass lies. Wehmeyer. 101 Eng. 26 AtI. 6 Mackey (D. real or personal. 1124 (1773). it is not necessary that the property shall have been carried away or converted by the wrongdoer. 88 Eng. 61) Iowa 85. the law implies force.Y. „Keeling. (Pa. and bring an action on the case for the consequential Injury. Mason v. 1 Salk. Any forcible and immediate injury to it is sufficient. or breaking into a house. if. 420. Fouldes v. Willoughby. or servant is enticed away. 660. 10 Am. Freeman. even with her or his consent. 335. PennsylVaiila: Hurst v. Rookesby. New York: Wells v. 540 (1702).) 379 (1888). English: Green v. 1278 (1798). 234 (1822).Dec. the injured party may treat thIs neglect as his cause of action. an injury committed with Force. Massachusetts: Daniels v. English: Scott v. 95 Eng.) 462 (1840). Carlisle. Force is implied in every Trespass quare clausum fregit.H. Perkins.. Maine: Decker v. 3 Wile. 81 165 If a man‟s wife. Rocker V. 12 Mod.) 381. 28 NW. StRep.) 307. (N. If they got out because of their owner‟s neglect to repair a fence which he was under a duty to repair. and ordinarily it is the only proper form of action. WIlloughby.Rep. daughter or servant is assaulted. of course. & W.Dee. 2 Salk. (N. 12 Mod. Howell. Keeling.C. 91 Eng. 246 (1844). Actual or Implied.Rep.Y. instead of suing in case. 335. Rep. 544. though there may have been no actual vioStackhouse. though. and cause Injury. treat the trespass as his cause of action. 42 Am. (N. Swan. however peaceably or thoughtlessly. making the wrongdoer a Trespasser Ab Initio. Gammon. 3 Pen.6‟ tearing down a fence and entering upon land. 99 (1857).) 381. nor even a touching of the person imprisoned. 1361 (1699). 267 (1870). and maintain trespass. and not merely Consequential.‟° Where a wife. Pond.Rep. Mason v. 155 Pa. 78. Penis. Shepherd. 8 Mecs.69 Sec. daughter. for which he may maintain Trespass.” Page 178 of 736 . nor for acts done under Authority of Process Regularly Issued. 23 \Vend. father. (N. 91 Eng. and the husband. Weaver v. 35 Am. If a man goes upon another‟s land without right. 582. 32 Am. (Pa. 21 Pick.Rep. 50 N. beaten or imprisoned. 1170 (1841). 1361 (1099). 447 (1886). See the following cases: English: Star v. Hale. 335. 908 (1893). 544.) 176 (1831).Rep.Dee. and must on the face of it show a The Elements of Force FORCE is either actual or implied.56 are exam63. that is. as we shall see. 64. New York: Guille v. 67 And the same is true if a man‟s cattle are driven or stray upon another‟s land and cause thjury. Rep. he may. 295 (1711). Iowa: Erbes V. the law will imply force. New Hampshire: tUcker V.Am.Trespass. Rep. 151 Eng.R. Connah V. Pennsylvania: Brown V. 19 Johns. S T. An Assault and Battery. 61) Am. 88 Eng. Rep. English: Fouldes V. 19 Johns. 10 Am. (Mass. 7 Watts & S.

Hawkins. 295 (1711). Chamberlain v. wIth Precedents and Forms.) 373 (1834). 38. Co. & C. 591. Wheeler. and the injury immediate. & W.Rep. 2 Wms. ed. Vermont: Hubbell v. A treatise on Pleading and Parties to Actions. c. English: 515. 391. 1335 (1805). 69 (1859): Kentucky: Johnson v.) 359 (1827). H: II. 2 Young & J. a master is not liable in Trespass for injuries caused by the negligence or want of skill of his servant. Hardern. 56. where there has been no unlawful taking. 1018 (1796). Tlmbrell.Dee. English: Page 179 of 736 . S Wend. 436. The Amerika. 77 Eng. I Salk. Castleman. Massachusetts: Barnes v. 9 Barn. 119171 A. 1 East 108. but must be sued in Case. 85 Eng. ed. however. 11 Mass.Rep.) 292 (1805). Turner v. Itookesby. Wilson. 3 Wils. ~N. 47. 2 Aikens (Vt. 2 Dana (Ky.Rep. 31 vt. Crickett. Tullidge v. Rinks. Connecticut: Havens v. notes (Is) (1). 1042 (1825). Bacon. 28 Con”. 46 Me. 91 tag. and was injured. 1 Bos.” (1859). 148 Eng. 59. 5 Mees. New York: Broughton v. 127 Eng. Snow. New York: . 218 (1839). Olivant. 18. 423 a fence. 19 Wend. Hurd. Springfield 1876). Vermont: Saxton v. 106 Eng. Powell v. Hartford & N. (N.Saund. 107 Eng. 44. or by his unauthorized act. English: 77. 470.Y. 326 (1889). „~ nor for neglect to repair 69. by Perkins. Raines. I Earn. Gregory v. 361. A Treatise on Pleading nnd Parties to Actions. if at all. whereby another‟s land was overflowed. Wright -cc Wilcox. at 628 (1670). Macfad- Zen V. IZ. Bond. 507 (1838). 131 Bng. Wilbrahnni v. 2 Maule & S. 1 Chitty.Rep. 101 Eng. 2 Caines (N. for in the absence of an act there can be no force.Rep. and the act was forcible. and sue in case. will not lie for the mere detention of goods. & C. & P.&kerley v. 126 Eng. II.C.‟5 As a rule. Thtcham V. 223. Emmett V. with Precedents and Forms.Rep. Springfield 1876).Rep. therefore. flaky.Generally. 22 (1817). Salisbury. & Aid.Rep. As we shall see under Chapter 8. and on the history of trespass and case.App. the right of a master to sue another in case for causing the death of his servant. Moreton v. 11. as the natural and probable consequence of an act of the servant ordered expressly or impliedly by the master. 3leManus v. 970 (1828). S Coke 146a. 540 (1859). 443 (1814). Piper. 32 Ill.) 343. Trespass will lie against the master. & P. „~ nor for neglect to repair the bank of a stream. 695 (1610). „624.R. e. 71. 5 TS. English: TO sustain Trespass the injury must have been immediate.Rep. 909 (1769). Of the Forms of Action 141 (16th Am. 6 East 387. even though the servant might be liable in Trespass.Rep. see Admiralty Com‟rs V.Y.Rep. On 1 Bos. he may regard the Injury (loss of comfort or services) as consequential. 4 Barn. 1 Chitty. Booth v. Wade. 95 Eng. The In jury as Immediate 75. Rep.) 255. 109 76. 102 Eng. 32 Am.) 474 (1832).Y. 459 (1805).‟6 If the injury occurs.. Hazlewood. at his election. Whallon. Illinois: Burke v. 44 (1800) -. 335. Weedon V. „3. 57 (1814). and not merely consequen Star v. 105 Eng. Six Carpenters‟ Case. whereby another‟s animal escaped onto the land of the person so negligent or elsewhere. Lyne.‟2 Trespass. RInks V. 102 Eng. 201 (1793). by Perkins. Of the Forms of Action 141 (16th Am. Trespass on the Case. (N. Rep.ltep. 70. II. a mere nonfeasance cannot support an action of Trespass.

83 And where a person negligently drives off another‟s animal with his own. which descended a short distance from the place of ascent into the plaintiff‟s garden. who Is riding in It at the time. 220 (1829). Phelps.Dee.~ And where a person makes an excavation so near his neighbor‟s land. some of it rolls against the wall. Gregory v. On negligently setting a fire and burning another‟s property. 12 Alien (Mass. without endeavoring to ascertain the number of animals he is driving. 319 (1858). but if it were negligently left in the highway and a collision with a team or automobile resulted in the darkness. 28 Miss. he was answerable in Trespass for all the damage done to the garden.Ilep. (Vs. 1 Mass. though ascending in a balloon was not an unlawful act. 166 Cli.ltep. 11 Ill. it was held that. Case. he is regarded in law as having forcible and directly caused that injury. Green v. 47 Am. Trespass is a proper remedy against him.App. a person lays rubbish so near another‟s wall that. 487. and not Trespass‟s If a person. for instance. Piper.85 Page 180 of 736 . Hemmenwny. Peterson. It was held that tres-~ pass lies against an owner of a Vehicle. causes his vehicle to forcibly strike another vehicle or a person.80 11‟ . 39 (1882).Bng. Wyatt. I Mass. 4 Unt. such an action is also maintainable. where a person through negligent and careless driving. is the remedy to recover for injury to a vehicle from stone deposited in the highway. perilous position. yet. Piper. though by the weight of authority. for a col lision. MeKowen. Mississippi: Me~oy v. 34 Micb. 79. Trespass will lie. 1? Mass. the natural and probable tendency of which is to cause an injury. the remedy is by Action on the Case. For consequential injuries. 12 NW. 102 Engflep. Levan. 3 East 593. but may sue in Trespass. 591.Bep. 177. 724 (1808). supra.) iii. see Jordan v. in the act of throwing a log into the highway hits and injures a passerby. To constitute an immediate injury committed with force. 109 Eng. 7 tial. called for help. a passer-by f ails over it. Campbell v. Michigan: Barry v. 48 Mick 283.) 49 (1866). and the servant used ordinary care. 244 (1821). even though there may have been force. and It was held that trespass could be Iii Stroll v.Dee. Bray. and Trespass will lie. 9 Barn. Pennsylvanial Yerger V. Warren. Massachusetts: Adams v. $1.Lenine 80. though driven by a servant. 145 (1804). but some of the rubbish naturally fell against the wafl. Phillips. 724 (1803). from its own weight and of necessity. Illinois: Arasmith v. Leame cc Bray. that the land. this would be a consequential injury. 264 (1853). and the defendant. & 0. Trespass will not ~ So if a steam roller were driven over a person this would be a clear Trespass. 3 East 593. though not willfully. In Gregory V. a master had ordered his servant to lay some rubbish near his neighbor‟s wall. maintained against tbe master. 530 (1805). either from a desire to assist him. If after a log has been wrongfully thrown into the highway. the person injured need not bring an Action on the Case. the injury is immediate upon the wrongful act. would ordinarily and naturally draw the crowd into the garden. not trespass.8‟ And where the defendant had ascended iii a balloon. v. but so that it might not touch the same. under the circumstances. falls. or to gratify a curiosity which he had excited. the injury is forcible and immediate. 181 (1882). and the remedy is in Trespass. If a man puts in motion a force. Massachusetts: Grinnell v. being entangled and in a 78. but.84 So. Temple. 220 (1829). If the Injury was the result of negllgence. 512 (1876). Newmarch. 102 Eng. 31 Pa. 59 Am. 721) (1847). as the defendant‟s descent. 39 Pa. BeLts. Howe V. as a natural consequence. and a crowd of people broke through the fences into the garden and trampled down the vegetables. it is not necessary that OFFENSIVE PLEADINGS the wrongdoer shall have intended to apply the force in the manner in which it caused the injury.

if a wild or vicious beast. general]y by the weight of authority.” Some of the Courts. (NY. 8 East 503. 30 Am.Itep. Wilcox. Burton. McAllister v. 43 Ani. where there is an immediate and forcible injury to person or property. See. 15 Johns. 24 Nc. (N.Dec. Daniels v. 67 Iii.~ So. 64 (1819). Bu~kirk v. Case will not lie. 477.) 257. the injury is regarded as immediate and as committed with force. trespass is the only remedy. Strickland.Ilcp. 32 (1873). Kentucky: Payne v. 249 (1845). or other dangerous thing. 25 Mc. Hand. Vanderbilt. 420 (1844) New York: Percival v. 18 Vt. 25 Me. 23. 570 (1810). Smith. & P. Miles. Wilcox. & P. City of Pekin v. 16 Conn. 87. But trespass on the ease w‟iJl also lie. 210 (1882). 81 167 The same is true where a collision between vessels is caused by carelessness or unskillfulness in navigation. Hand. New York: Percival v. 231 (1840). Williams v. Pennsylvania: Simpson v. is turned loose or put in motion. (md. Swan. Veeder. Vanderbilt. Maine: Kennard v. 58 Eng. (N. Page 181 of 736 . New Haven Steamboat & Transportation Co. 84.Rep. 805 (1846). Ohio: Gates v. 39. criticized in Claflin v. 98 Eng.) 381. Hiekey.Dee. 210 (1820). hold that where the injury from a negligent act is both forcible and immediate. Connecticut: ACTION OF TRESPASS The Squib Case New Haven Steamboat & Transportation Co.) 342 (1826). 61. 11129 (1833). Y. (N. 389. Pennsylvania: Simpson v. For wilful Injury so caused. (Pa.80 And. 6 Cow. 43 Am. Hawkins. Beckwitli V.L. 11 NW.New York: Wilson v.Y. the party injured may at his election treat the negligence of the wrongdoer as the cause of action and Declare in Case or consider the act itself as the injury and Declare in Trespass.) 497 (1836). 724 (1803). Shordike. (Pa. 39.Itep.) 257. Hammond. 19 Johns. 420 (1844). CuRie v.J. io Wend. 333. Sec. 83. 234 (1822). 18 Vt. 172 Eng. Brereton.Dec. 126 Eng. 17 Pa. Leame y. 4 Dana (ICy. Favour. v. Wilcox. (N. SmIth. 210 (1820). and Trespass is the proper remedy.82.Dec.Eep. 10 Am. 3 Conn. 673 (1878). Y. 38 kin.) 324 (1833).Bradford cc Bail. New Jersey:Post v. Vermont: Claflin V.Dec. 605 (1846). 724 (1803). Levan. 1016 (1796).H. 206 (1842). I Bos. Connecticut: 88.Michigan: Daniels V. Mason v.) 311. Bray. New Hampshire: Dalton v. 249 (1845). 7 Am. 3 N. also. 3 East 593. 4 N. Brooks v. attributable to the negligence of another. 465 (1826).Dee. 6 Car. 605 (1846). Vermont: Claflin v.89 AN illustration of the barren debates as to the distinction between Trespass and Case is found in the oft-cited Squib Case of Scott 86. 28 web. 231 (1840).Rep. North Carolina: Baidridge v. 7 Biackf.) 311.Dee. v. Connecticut: Se. 91 (1767). and mischief immediately ensues to the person or property of another. 629 (1873). 16 Conn. 9 Am. Munn. 472. 4 Burr. Hiekey. 6 Whart. 2092. Holland. however. 6 Whart. Clegg. Olmstead. 2 Ohio 169 (1819). 1360 (1699). AlIen. Bray. Case v. and that Trespass is the only remedy. Indiana: Sebuet v. IS Vt. 28 Mieb. 39 Pa. Maine: Kennard cc Burton. Pennsylvania: Strohl V. 18 Johns. Mark. 9 Am. Turner v. 38 web. KeelIng. 277 (2861). Clcgg. 47 Inch. Dec. 16 Am. 102 EngRop. 24 (1851). 32 (1873). &~- English: Learns v. 12 Mod. 102 Eng.Y.) 342 (1845).

v. 11 Mass. the injury is consequential. 892. 797 (8th Am. decided in 1773. 525 (1773). one of which. by Collins and Arbuthnot. 12 NC. The Action of Trespass on the Case 257 (Northport 11900). 96 EngRep. e. An Action of Trespass was brought against the defendant who first threw the bomb. wrongful arrest. becoming dizzy. Foundations of Legal Liability. Shepherd. Shepherd. c. The Action of Trespass 235 {Northport 1906). and Trespass will not lie. and that Trespass is the remedy. he is liable in Trespass for the injury. 420. Scott v. took up the squib and tossed it across the market house. in order to avert the threatened injury from himself. dissented.°5 But if a person stops a water course on his own land. sec 3 Street. 168 OFFENSIVE PLEADINGS 92 jury be willful or negligent.ea If a person pours water directly upon another‟s person or land. and in consequence thereof the water after-wards runs therefrom upon another‟s land or house or person.~ So if a dog is set on plaintiff‟s horses. iSS (1827). injuries under Color of Legal Proceedings NICE questions have arisen as to whether Trespass will lie for injuries done to the person or property under Color of Legal Process or Proceedings. as an immediate consequence. Thereupon the squib exploded and put out the plaintiff‟s eye. who happened to be a Member of the Court. as in case of wrongful prosecution of a criminal charge.H. ed. is injured or killed. which spreads. In this famous case there was no question of liability. 7 TI a man starts a fire on his own land negligently. also. London 1879). 2 w. Freeman. also. whereupon the latter pushed him away. and such a consequence results. or if he place a spout on his own building. Sir William Blackstone. it is clear that the injury is immediate. See. 9 Am. but merely of the historical distinction between Forms of Action. Richer (1870). XVIII. Another person near whom it fell likewise threw it in another direction.°‟ Where a person beats a drum in the highway. 50 N. Page 182 of 736 . and was injured. Cole v. reported in I Smith. 137 (1814). It was held that Trespass was the proper remedy. 267 91. and. while being pursued. as the harm was not the immediate and direct result of the defendant‟s act. A bystander. It is immaterial whether the in 90. See. Other Illustrations IN another case. the property of another is destroyed by it.Bl. 3 Street. the defendant had seized the plaintiff by the arm and swung him vialently around and let him go. Fisher.90 A lighted squib or bomb had been tossed by the defendant into a market house. and the plain tiff. the natural or probable consequence of which is to frighten the horse of another and cause it to run away. in which the distinction between immediate and consequential injury is considered.Rep. Generally no action at all will lie for an act done under the Judgment or Order of a S2~ Loubz v. That trespass only lies for an act which is or tends to a breach of the peace. or wrongful attachment of goods. and he came in contact with a hook. Foundations of Legal Liability.v. XVII. and Trespass is the proper form. Trespass is a proper remedy for the injury. Leading Cases. being of the opinion that Case only would lie. this is the direct result of defendant‟s act. Cb. and the action was sustained. if his act is the immediate cause of it. had involuntarily passed rapidly in the direction of a third person and came violently in contact with him. Halner. whereby it is prevented from flowing as usual.

4 Am.Rep.Dec.) 291 (1828). or exceeded its Jurisdiction. but Is bound to Sec. I Moody & B. 1108 (1773). 4 Johns. (Va. & C. 63 (1823). 10 Am. Case of the Marshalsea. Case of the Marshalsea. 874 (1768).New York: Griswold v. Lewis. 344. 1038 (1612). 103 (1854). ed. Painter v. by Perkins. 77 Eng. c. Branwell v. Cave v. would sustain such an action.) 334 (1837). 108 Eng. English: Parsons v. Trespass is the proper remedy where a court has jurisdiction over the subject matter. Illinois: v. with Precedents and Forms. n. also. 39 Pa.°° When the Court had no Jurisdiction at all over the subject matter. A Treatise on Pleading and Parties to Actions. 2 Wils. Baron Broughani. Smith. 95 (1836). „ S. Green cc 3forse.) 456 (1826). 9 Johns. independently of the process. Caldwdll. Wyatt. 874 (1768). Springfield 1876). Clerk. 679 (1847). Trover also will lie. 88 Eng. 4 Blaekf. 1038 (1612). 95 Eng. 309. Indiana: Barkeloo v.) 151. 300 (1809). A Treatise on Pleading and Parties to Actions. as where unnecessary force has been used in making a lawful arrest.Y. Trespass is the proper form of action against all the parties for any act which.Impey. I Scam.‟ Trespass will not lie for acts done under Legal Process. Of the Forms of Action 204 (10th Am.) 188 (1823). (a).Occ.9° When the Process of a Court has been abused by the officer executing it.Rep. Ashinead. If the Court had Jurisdiction. 4 Orat. 3 Wils. 16 Ill.t3’ Jordan $4. 5 Greenl. ed. 151.) 570 (1854).) 39.Rep. 9$. Reynolds Court or Magistrate having jurisdiction over the subject matter. 77 Eng.. Tennessee: James v. Brabam. Milliken v.Dcc. Leycl. Baker. 32 Am. 95 Eng. 110 Coke 76A.Y. Horton v. with Precedents and Forms.) 35 (1834). I Barn. 193 (1725). Randall. 330 (1840).Illinois: Hull v. & G. & R.) 450. Dicas v. Blaisdell. or the goods of one person have been taken under process against another‟s goods. Nesbit. 2 Gray (Mass. (N.Dec. 382. II. Vail v. SI. 720 (1847). (N.Bep. as where one person has been arrested under a warrant against another. Freeman. 95 Eng. 62 Me. Springfield 1876). 536. Maine: Guptili v. (Me. by Perkins. Case for Page 183 of 736 . 7 Wend. (N. Doswell v. 272. 1089 (1772). 19 Vt. 376. 91. 47 Am. Trespass is the proper form 98 of action. KB. 11 Conn.Rep. Barker „v. Cray. however malicious and groundless the institution of the proceedings may have been. 1 Man. or detaining a prisoner.Eep.Y. 1 Chitty. Massachusetta: Sullivan „cc Jones. (Ill.ConnectIcut: Allen v. the following decisions: English: Perkins t. 47 Am. 46 (1838). Y. 1 Chitty. 2 Wils. (Pa. 72 Am. 107 Eng.) 470. or goods are taken or used improperly under a valid Writ. Of the Forms of Action 203 (16th Am. 95 Eng. 341. See. 2 Rawle (Pa. is the ACTION OF TRESPASS remedy. RIchardson.°‟ If goods have been taken. Pennsylvania: Maber v. 3 Wils. also the following cases: English: Perkins v. 7 Barn. 257.Rep. Proctor. v. Bigelow „cc Stearns. (md. II. 19 Johns. Auchmoody. (Tenn. 823 (1827). 257 (1874). such as Writs and Warrants regularly issued by a Court having Jurisdiction. Trespass. 133 EJng. Adams v. c. 169 When Process has been misapplied. (N. 6 Cow.Rep. KB 384. Proctor. Brown. 8 Mod. 108 (1833). 169. See. Vennont: Hooker v. 708 (1858). Sedgwick. 10 Serg. Pen-neck.) 200 (1831).Dec. & C. 7 Yerg. Pennsylvania: Shoemaker V.) 117 (1812).Rep. and not Case. 10 Coke 76(a).Dec. 00. Trespass is the remedy. and generally Case will not lie. (N. but the proceeding or process was irregular and void.Ilep.Rep. Mountain.Y. 1174 Eng.) 201 (1828). 189 (1821).

257 (1870). Hall. Fisher. 20 Am. New York: Griswold v. Gill. Maine: Plummer v. Spoor. 99. 256 (1845).Dec. Malcolm 6. Mead v. but sells without giving the notice required by law. 300 (1800).Dec. Knatebbull. Rep. Ii East 64. 528 (1795). & AId. Illinois: Outlaw v. 473. 673 (1839). 82 Eng. 43 A. Lothrop v. Roy. 7 Cow. 25 AtI. Davis. English: (1866). 091 11892). Perkins.) 147 (1844). 40 III. or license is given by the party. New Hampshire: Melvin v. 2 LItL (ICy. 239 (1871). Spaulding.Rep. 204 Ala.Y. 312 (1837). 25 (1800). (N. Drew v.) 332 (1827). 15 Mass. 77 Eng.H. 304. Johnson v. (Mass. 84. 18 11.BI. flaws. 76 111. Gates. Co.Dee. 4 Johns.Y. or license is given to any one by the law. WhIttier.Malicious Prosecution is the only remedy for improperly putting in motion the regular Process of the Court.0. Massachusetts: Melville „cc Brown.) 414 (1810). Esbaugli. 80 (1787). Randall. Baker. 46 Am. New York: Vail v. New York: Beaty v. 224 (1875). 472 (1864).06 Eng. 55 Me. Bartce.I1. New Hampshire: Taylor v.” An officer who enters a house by authority of law. Starr. 8. 14 Me. 8 N. 4.5 And the same is true where an officer has made a lawful levy on goods. Hindson.Y. English: Sanderson v. 254 (1021). 1. and attaches goods therein. (8. Davison v. then he must be punished for his abuse. Schenck. 490 (1772). 46 Am. Six Carpenter‟s Case. authority.6 Island: I-Jolil. 181 (1830). Savacool v. 318 (1876). 1*3 Me. Spoor. Maine: Guptill v.) 421. from which it deviates. 62 Mc. 106 Eng. 42 NIl. authority.) 279. S Coke 146 (a). DePuy. 21 . Lewis. 675 (1847). 2 T. and he doth abuse it.Dec. South Carolina: Miller v. 21 Pick. becomes a Trespasser ab initia by placing there an unfit person as keeper of the goods.) 55 (1838). 12 Vt. 2 Barn. Arnold. Porter. (N. Churchill. (N. he may become a Trespasser ab initio. Craig. Massachusetts: Blalock v. 12 AL.Jones 173. Baldwin v.A1m. 315. 1 Rich. U T. 2 adopt certain forms in its proceedings.1.Rep. Carrier v. 2 W. 91. Von Kettler. Smith v. Stewart. 2. 27 IlL 467 (1801). 148. Illinois: Trespass ab Initio A PERSON may lawfully obtain possession of property under the process of a Court. 82 (1818). 6 Creenl. W. Jones. 328 (1898). or otherwise under authority of law. cole v. 25 Me.ntDee. 100 Bng. (Mo. and he abuses it. 234. yet if he abuses his authority by dealing with the property in an unauthorized manner. Boughton. 257 (1874).R. (~. 33 (1839).~ “When an entry.) 450. New York: Van Brunt v. thereby rendering the proceeding coram non judiec. 6 Wend. 76 lll. (NY.Rcp.) 170. Malcolm v. (N.) 270. 439 (1819). U. Maine: Foss v.flep. 316 (1830). v. Sedgwick. 13 Johns. Illinois: Upton v. Once.) 382 (1831). (Mass. 12 Mete (Mass.) 234 (1822). but shall not be a Trespasser ab initio. against the remonstrance of the owner of the house.H.Y. 539.s v. 70 Pa.App. i02 Eng. 45 N. Kraft v. 506 v. Alabama: Louisville & Nil. or authority of a statute. 12 Mete. Parker v. 4 Am.Rep. 6 Cow. Kentucky: Owens v. but where an entry. Rhode (1839). 84 111. 362 (1868). 136. Breare. Page 184 of 736 . English: Woodgate v. 25 (1860). 833. Holroyd v.) 450 (1820). he shall be a Trespasser ab iniUo. 57 111. English: Cole‟s Case. Vermont: Cliurchili v.Rep. 095 (1610). 101 Eng.Y. Richardson. 5 Wend.Dee. Illinois: Page v. 400 (1836). 661 3. 88 So. Dennett.

22 N. Although the Codes provided for the abolition of the distinctions between the various Common Law Actions. flatly declared that the more formal differences between such actions had been abolished.) 399 (1826). AS previously observed. it has generally been held that such provision merely abolished the Formal differences between the actions. according as they are General or Special. New York: Bennett v. which was to be called an “Action at Law. need not be stated in the . with respect to Trespass. but sells without a previous appraisement and ad- 170 Ch. becomes a trespasser ab initio. & U. it always gives the right to recover at least Nominal Damages. “General Damages are such as the law presumes to have accrued from the wrong complained of. Massachusetts: Hannen v. Asseler.) 453 (1838). in many instances. S Day (Conn. impossible to make an action for a direct aggression upon the plaintiff‟s rights by talc8. the Declaration should contain an Allegation of the Damage sustained. vertisement. 1 Chitty. It was. but that the substantive differences remained as at Common Law. 326. v. and the amount must be Jaid high enough to cover the actual demand.) 485 (1800).) 343 (1818). But where the plaintiff expects to recover Special Damages. But in Goulet v. by an unnecessary degree of violence. Kerr v. be a mere technical infringement of another‟s right. They will be Generally or Particularly stated. provided for a single. Connecticut: Pease v.) 371 (1841). Id. 225 (1860). STATUS UNDER MODERN COnES. or he will not be permitted to give evidence of such Damages on the Trial.Declaratlon. Edes. 25 Wend. PRACTICE ACTS AND RULES OF COURT 83. 385. they must be pleaded. AS the main object of the Action of Trespass is the recovery of damages. Kentucky: Boles v.lltep. While the Trespass may.” M‟D aniel. 332. a landlord who lawfully distraln5 goods. in the nature of a Special Action on the Case. that it is sufficient to assign the Breach in the words of the contract. Such Damages as may be presumed necessarily to result from the breach of contract. 1. and Case. Terrdll. the various statutes of this character. but in order to recover Substantial Damages. 7 Trespass will also lie where a battery or imprisonment was in the first instance lawful. he said. (S. except in cases where the special injury is the gist of action. Moreover.And an officer who levies under a lawful exeeutiom. Admr.C. became a Trespasser ab initio. but it is not a good ground in Arrest of Judgment. 7 Dana (Ky. 1 Chitty on Pleadings. The Declaration must also Allege the Damages which are the legal and natural consequences of the injury. is also a trespasser ab initio. The general rule is. Wilson v.” In plain English. formless form of action.Rep. The Jaw always presumes some damages to result from a breach of contract. Ellis. (Pa. and are not implied by law. smith. there appears no cause of action on the face of the Declaration. in the various states adopting the New York Code. There was to be but one form of civil action in the Courts of Common Law. as General or Special.St. Burt. Page 185 of 736 . St. But the reform was not as sweeping as the language indicated. he must state them Specially and Circumstantially in order to apprise the defendant of the facts intended to be proven. (N. 264 (1858). to which he would otherwise have been entitled. 14 Berg. 1 Nott & McC. In such cases. Appleton. Special Damages are such as the party actually sustained. but refuses to permit the debtor to select and have appraised to him the amount of property exempt by law. Pinkerton.Y. 238 (1857): Freeman v. 28 Pa. unless the Special Damage is set forth. one effect of the New York Code of Procedure in 1848 was ostensibly to abolish the Common Law Forms of Action. Sharp. so Pa.8 Selden J. 15 Mans.. An omission to set forth any Special Damage may deprive the plaintiff of the benefit of testimony. but the party. and therefore Special Damages need not be alleged. 347 (1819).Y. !Fhe form of statement must be according to their nature. as in Action of Slander for words not in themselves actionable.‟ DECLARATION IN TRESPASS—ESSENTLAL ALLEGATIONS: (4) THE DAMAGES OFFENSIVE PLEADINGS 82. and the distinctions between the same. with the Substantive differences remaining.

c. 576. as the party bringing the action may elect. alleged ownership and possession of the land. an unlawful entry by the defendants. 36 (1874). to abolish the technical distinction between the Two Forms of Action so that you may join Counts in Trespass with Counts in 0. the Statute is inapplicable?‟ Case. the Issue was whether the plaintiff. the widow of his father having a life estate therein as her dower. such as an injury to a reversionary interest—and for which the remedy at Common Law was Trespass on the Case. It. in St. then there must be a possession in order to support it— either actual.App. in an action for cutting trees. Foster J. At the Trial. 83 171 ing and disposing of his property—for which a remedy at Common Law was Trespass de bonis asportatis—the same thing as an action to recover for the consequential injury resulting from an improper interference with the property of another. and the facts that are alleged in the pleading must be supported by the proofs. Spicer. and acts done thereon to its direct injury by 11.Sec. and does not change Substantial Rights and Liabilities. in which the plaintiff brought Trespass quare clausu. must contain the elements df a good Count in Case..” in which the plaintiff. declared: “The Amendment changing the Declaration to Case ought not to be allowed. 7 force. Ch. or in case the premises are vacant and unoccupied. § 22. but does not affect the substantial rights and liabilities of parties. 58 Me. 90 10. like Illinois and Maine. One defendant justified his acts under authority of Spicer. that in all Actions the Proofs must correspond with the Allegations. a constructive possession that follows Ownership and Title. The Replication denied these allegations. and may call your Action Trespass or Case—it is wholly immaterial which—and may sue out your Writ in either Form of Action. Lawry. 172 Conn. Practice Acts and Rules of Court is strikingly illustrated by Avery v. could maintain Trespass. 160 (1878). or if in Trespass. either of said Forms may be used. True. But this relates to the distinetlan in Form only. Louis. 482. 273.° ACTION OF TRESPASS In the period of Reform in the Non-Code States—between 1848 and 1938—several States. If the Declaration is in Trespass quare clau. or both. both defendants claiming that Spicer owned in fee simple the land upon which the cutting was done and was in possession thereof. 110.” ILLINOIS REV. whose interest was only that of a remainder-man. but such facts must be alleged as show a Legal Cause of Action in the one Form or the other. the Action in the Form of Trespass and could not be allowed to Amend so as to change the Form of Action.~4 A. ~55. The Town of Summit)‟ ° Baker 3. Vandolia and Terre Haute It. v. it appeared that the dispute grew out of a disagreement as to the location of the boundary line OFFENSIVE PLEADINGS Page 186 of 736 . Co. stated: “„The statute does away with the technical distinction between the two Forms of Action.n fre~it for cutting standing trees on a lot of land which the plaintiff owned in renjalnder. Nor do we understand that this statute repeals that old and more than well settled principle.sum fregit. so as to operate to give any other remedy for acts done than before existed. In discussing the effect of such statutes. ST.‟ We understand the statute to accomplish these objects and these only. Undei. But your Count.In accord: Lawry V. 135 (1916).” The position of Trespass under Modern Codes. Where a Declaration is filed showing a good cause of action in either Trespass or Case. 98 A. 4S~. enacted statutes which merely provided for the abolition of the distinctions between the Actions of Trespass and Trespass on the Case. the Statute has abolished the 11s-tinetion between [the] Actions of Trespass and Trespass on the Case. 274 (1896). if in Case. it is wholly immaterial whether you call your action Trespass or Case. and in all cases where Trespass or Trespass on the Case has been heretofore the appropriate Form of Action. rather than of Form. provided: “The distinctions between the Actions of „Trespass‟ and „Trespass on the Case‟ are hereby abolished. must contain the elements of a Count in Trespass. . 3 fll. and may then Count in either Trespass or Case. at your option. In holding that the plaintiff cook? not maintab. The change goes only to the matter of the Form of Action. In cases where the distinction Is really of Substance.a Maine Statute which abolished the distinction between the Actions of Trespass and Trespass on the Case.

that it was not necessary that the plaintiff show actual possession. for the latter‟s acts of wrongdoing to the property as long as the disseisin continued. whereas the defendant Spicer contended that his ownership included the property on which the cutting took place. - It thus appears that although there is a change. 84. The same facts will entitle one to the same redress as before. in order to be entitled to a Verdict. and the like. express or implied. 90 coun. instead of being reversionary.” 12 . 86. 95.between the properties of the contending parties. 578. Declaration in Trespass on the Case—Essential Allegations: (5) The Damages. might not avail himself of it to redress a wrong done to his property by direct force. but not having the possession. remainderman. 90. 135. On an Appeal. The first is that a person whose interest was not reversionary was not permitted to recover f or injury to property unless he could show possession. By an Action of Trespass on the Case one whose reversionary interest had been invaded by a wrongdoer might have redress. was such as the right of possession attached to it. and to no other redress. Particular Applications of Case as the Great Residuary Common-Law Remedy for Various Wrongs. The plaintiff claimed. The Expansionistic Character of Case. 12. in name. up to a point beyond which the cutting took place. 93. Two pertinent facts of present interest and importance thus appear. 570. that a title owner disseised could not sue his disseisor. actual or constructive. Anticipating Defenses in Case. are still the same. Scope of the Action. Practice Acts or Rules of Court. Sec. 94. The disseisee in such case must either first regain possession by legal action or otherwise. VS A. 92. . TILE ACTION OF TRESPASS ON THE CASE1 CHAPTER 8 Page 187 of 736 . must prove that he was in actual or constructive possession of the land. but that sufficient proof of possession would be produced by proof of Title and the absence of actual and exclusive possession in another. 85. there was in the CommonLaw System a Form of Action providing for the redress of an injury suffered by one having an interest in property. Title. substantively the requirements for bringing an Action under Modern Codes. for example. to wit. Interest or Possession. 89. The substitution of our Practice Act for the Common-Law System of Pleading has not changed the situation save as it has abolished certain formal distinctions and employed a new nomenclature. Chief Justice Prentice observed: “Passing by Trespass with its requirement of possession as a prerequisite of recovery. under the Common Law. which would be the equivalent of the Action of Trespass. But the Action could not be resorted to by one whose interest. Declaration in Trespass on the Case—Essential Allegations: (2) The Plaintiff‟s Right. or recover for those injuries as an incident of his action to regain possession. Form of the Declaration in Trespass on the Case. Declaration in Trespass on the Case—Essential Allegations: (4) The Defendant‟s Wrongful Act in Breach of His Duty. His interest is possessory and not reversionary. and then bring his Action of Trespass for the injury to the property. The Court instructed the Jury that the plaintiff. the validity of this Charge to the Jury was the principal issue. Declaration in Trespass on the Case—Essential Allegations: (1) In General. 136 (1916). Case Distinguished From Trespass. He could not sue the disseisor for the tort independently until he had come into possession. 87. The second is but its corollary. A fee owner. as evidenced by title deeds. In holding for the defendants and that there was no error. Declaration in Trespass on the Case—Essential Allegations: (3) The Facts Showing the Existence of a Legal Duty on the Part of the Defendant. Election Between Trespass and Case. 88. 91. as is that of a landlord.

245 •(Northport. Personal Actions Es Delicto.Rev. The Action on the Case. III. 65 (1918). coupled with force and violence. Foundations of Legal Liability.. Civil Procedure at Common Law. c. Fault and Liability.Bev. Ames. c. McConniclr. LEer. of Pa. Liability. Perniatent Structures and Continuing Injuries—The Iowa Rule. The Moral Duty to Aid Others as a Basis of Tort LiabilIty. The study of Law. 40(1915). Damages for Anticipated Injury to Land. 184. History of English Law. 1951). c. 2 Holdsworth.Bul. A. 1906). Martin. libel and slander. though it is sometimes concurrent with other forms. 10 Calif. 3 Select Essays In Anglo-American Legal History. c.Rev. Chicago. Various theories have been advanced as to the effect of this Statute upon the development of the action of Trespass on the Case. 33 Harv. contract and Tort.L. 1056). The Action on the Case. Issacs.Eev. 7 Harv. 75 (St. Case lies where no other theory or Form of Action is available. the other. On Negligence and Deceit in the Law of Torts. 1918). Maitland. 316 (1908). 68—68 (Cambridge. Fifoot. 31 Harv. IV. 463—475 (5th ed. 1929). III. XIX. 30 Harv. Lecture VI. such as deceit. Boston. 26 L. Boston. Paul. 184 (1920). XVIII. 1881). Trespass and Case. Civil and Criminal. or (C) The interest in the property affected did not give the right of possession. 4 Iowa L. tial. and it may be said that. C. 1949).QJlev. 75 Di of Pat.L. The Forms of Action at Common Law. (II) For Torts committed by force. 105 (2d ed. 593 (1924). the one without force or violence. History of Negligence In the Law of Torts. XV. Goodrich.Rev. Plucknett. This distinction between private wrongs resulting from forcible injuries and those without force arose out of the Forms of Action or Remedies which were available. Recognition of New Interest in the Law of Torts. 3 street. in general. 42 LQ. 442 (Cambridge 1913). Boblen.. The Statute of Westminster 11 (1285) authorized the Clerks in Chancery to issue New Writs in cases similar to. 29 Barvt. actual or implied. Page 188 of 736 . An Action on the Case lies to recover damages: Status Under Modern Codes. 365 (4th ed.Rev.Rev. The Early Forms of Liability (Boston. Trespass and Case as the Source of Our Tort Law • AT Common Law civil injuries were divided into two kinds. 173 174 Trespass and Trespass on the Case are supplementary to each other.. The History of the Law of Defamation. Lecture I. actual or implied. actual or implied. 37 Harv. Albertsworth. 1905). 87 (1926). Winfield. Morgan.L. Trespass on the case. Liability for Animals (Cambridge. 217. Case is the Great Residuary Remedy of the Common Law covering in general non-violent wrongs. Tort and Absolute Liability.L. VI. SCOPE OF THE ACTION (I) For Torts not committed by force. such as assault and battery or false imprisonment. ralfy. The Common Law. 574. Art.L.Rev. Asterburn. 411 (1927). Jenlrs. 541 Ii. Id. Negligence. 954 (1918). but consequen 1. but not identical with.Q. Practice Acts and Rules of Court. 1931). 461 (1922). Veeder. 1909). 315. c. 442 (1920). Trespass on the Case. C. IX. 1948). 268. on the History and Development of Trespass on the Case. or the detention of goods. In the Field of Tort the Actions of 1918). (H) For Torts committed by force. 42 L. 441 (1894). The Myth of Absolute Liability.96. 84. Davies. x. 159 (1010). Terry. 1948). Smith. Williams. 66 (London. Id. The two great Remedies which thus divided the Field of Articles: Wigmore. Liability for Substantial Physical Damage to Land by Blasting. see: Treatises: Holmes. IV. 383. where: (A) The injury was not immediate. 446 (Boston. 241 (1917). Winfleld. The Origin and First Test of Public CallIngs. Concise History of the Common Law. Short History of English Law. e.ltev. 130 (Boston. History and Sources of the Common Law. „The Baronial Opposition to Edward II (Cambridge. Responsibility for Tortlous Acts. Lectures on Legal History. The Action on the Case (London.L. Jenks. where—Cont‟d (B) The subject matter affected was not tangible. Law and Morals. In general. Rev. Smith. The Development of Action on the Case. Lecture VII. cases in which Writs had been previously issued.

libel and slander. point out that when Case underwent its initial development the demand for a remedy developed the Action of Trespass on the Case as a General Specific in consimlU casu under the provisions of the Statute of Westmin ster II. The Action on the Case and Westminster II.Q. 8 175 redress for such wrongs as deceit. that up until the Enactment of the Statute of Westminster H in 1285. 52 L. 68 (19541).Rev. The Origins of the Action of Trespass on the Case. 577. or on the general Common-Law principle of affording a remedy for every wrong.J.Rev. covering all non-violent injuries.Rev. that under this Statute the Action of Trespass on the Case arose under which any aggrieved party could sue for damages for any wrong to which Trespass would not apply. not from the statutory powers of Chancery Clerks.6 Page 189 of 736 .” In sustaining the wife‟s action. remedies were extended to cover non-violent injuries under the great residuary Action of Trespass on the Case. 2. see the case of Sims v. 1142 (1937). History and Sources of the Common Law. detention of goods. Landon. 79 N. than the denial of Its existence. Landon. There was and there is still no strict limit to this action and it is the vehicle which the Judges in England and America have used Fluckuett. declared: “That the Common-Law Courts failed to find a remedy is.Q. The Action of Trespass on the Case. IV. From the nucleus of violent wrongs. rather a recognition of the right. Minturn. 421 (1953). 157 (1937). cases in which Writs had been previously issued. malicious prosecution. lOGS (11110) in which a case of novel impression was considered involving the Issue as to whether a wife could maintain an Action under New Jersey Law against the defendants for “maliciously enticing away the plaintiff‟s husband. Case and Westminster Ii. 15 Tex. Case and the Statute of Westminster II. 49 L. 441 „Yale U.Bev. 52 L.‟‟ The learned judge simply was not conversant with the latest research in the field concerning the alleged relationship of the Statute and the Action of Trespass on the Case. not upon Writs issued by the Clerks in Chancery. Trespass and in constantly expanding the Scope of Tort Liability5 and in giving Negligence. 74 (London 1949). 3. 31 Col. 4. that the Action originated in the power given by the Statute to the Clerks in Chancery to frame New Writs in consimili casu— that is. False Imprisonment and Defamation. The Development of the Actions on the Case. where there was an indirect ap plication of force.” The Action was not based on any distinct theory of wrong except the supplementary and exclusory one. The Action on the Case and the Statute of Westminster II.Rev. 220 (1936). Fifoot.L. The Humber Ferryman and the Action on the Case. as being the product of the Statute of Westminster II (1285). 3‟ See TRESPASS ON THE CASE 3 Street. and thereby alienating from her his affections. using the Action of Tres pass as the stock for grafting. under the decisions. has been placed in grave doubt by the latest research on the subject. 11 Camb. but upon Writs issued by the Judges under the broad authority of the Common Law. Malicious Prosecution. It was formerly thought. direct or indirect.Q. Iciralfy. And it may be added that the modern theory of Tart Liability is the joint product of these two Actions. but not identical with. Dix. 68 (1026). and that in order to maintain it. 52 L. WInfleld and Qoodhart. that is. there was no Form of Action or Original Writ which could be invoked to recover Damages for other or nonviolent injuries. in cases similar to.L. remediless at first for lads of a suitable Writ or Precedent in the Begistrum Brevium. negligent injuries 3 and nuisance. as illustrated in The Miller‟ s Case ~ and The Innkeeper‟ s Case. actual or implied violence must be shown. Case proceeded either by analogy to Trespass. popularly referred to merely as “Case. c. 359 (1933).. harper. This view of the Action of Trespass on the Case. until the persistence of Sec. it was founded. those not falling within the theory of trespass. 245 (Northport 1906). 778 (1931). Fifoot flatly declares that “The Actions on the Case derived. Sims. originally remediable alone by the Action of Trespass.Rev. Per it may be said that the history of Common-Law Procedure is largely the history of Substantive Rights. xvIII. 84 Cli.L. c. Development of Trespass on the Case IT should be observed that in the beginning the only remedy for Torts was the Action of Trespass. in the last third of the Fourteenth Century.Tort are Trespass and Trespass on the Case.Q.J.” ~ And those authorities who agree with Fifoot. Foundations of Legal Liability. even though without violence. Phacknett.L. For OFFENSIVE PLEADINGS a comparatively recent example of this process. 76 AU. but from the Fiat of Judges.

where a Tort or Civil Wrong is committed with force. on the other (1794). I. the two actions were to a certain extent mutually exclusive. in the case of injury to property. III. are of more frequent use and of greater significance than any other.” The Writs of Trespass on the Case.However this may be. In view of the Origin and Nature of this Action. Y.” “Wrongs. 24. If. but consequential. Accordingly. and in order to distinguish them from the older and parent Action of Trespass. for example. Mich. where any one of the elements required to constitute a trespass is wanting. according to the nature of the different wrongs which called them forth.Rep. and not merely consequential. B. actual or implied. ALTHOUGH Case was complementary to Trespass.R.” alongside of the more ancient actions of Debt.° If.” CASE DISTINGUISHED FROM OFFENSIVE PLEADINGS TRESPASS 85. 361 complaining. Covenant. actual or implied. under the name of “Trespass on the Case. began. V. the property was in possession of the person 7. Trespass will not Page 190 of 736 . p1. to be viewed as constituting collectively a New Individual Form of Action. and the matter affected is tangible. were not called “Trespasses. and. it is important to note that it is comprised of several different species. and in theory distinctly differentiated. the injuries themselves. in the case of injury to property. of defendant‟s agents. 17 (1367). to wit. (II) Whether the injury is immediate or consequential on defendant‟s act. and likewise. there was something else in the 7 factual situation.” Other Forms of the Action of Trespass on the Case are generally known and designated as “Case” or as an “Action on the Case. the Remedy is in Case. Where the factual situation essential to constitute a trespass exists. III. where the act was direct and wilful. f. 11. 8 “Trover. f. Trespass and the like. nevertheless. (I)To the element of Force. or if. the plaintiff might have an option as to Case or Trespass. or. 42 Edw. the New Writs invented by the Judges to cover the cases were supposed to bear an analogy to Trespass and hence received the appellation of Trespass on the Case (bi-evi. Easter. this new genus took its place. the proper remedy to recover damages for the injury is the Aclion of Trespass. and the injury is immediate. 13 (1369). p1. but now referred to respectively simply as “Assumpsit” and 5. which were the subject of such Writs. the matter affected was not tangible.a de ti-ansgressione super casuin).” or “Grievances. the plaintiff‟s interest in the property was only in reversion. And. of course. 41 Edw. B. Express or Implied. as where the person or corporeal property of another is affected. Day v. as being grounded upon the particular circumstances of the case requiring a remedy.” but “Torts. for further differentiation. a Tort is committed without force. in various forms. and were originally known as Trespass on the Case in Assumpsit and Trespass on the Case in Trover. both of which developed out of Case. 176 Cli. though the Act was committed with force. though invented pro re nata. The distinctions between wrongs which are included under Trespass and those under Case relate: (III) „Whether the liability is for Trespasses (IV) Whether possession is interfered with. the Action must be in Trespass. assuming the facts make out a Torts Distinction Between Trespass and Case—In General AS we have already seen. 5 P. Edwards. 648. hand. as. the Action of Trover and the Action of Assumpsit. 101 Eng. however. or the injury was not immediate. however. two of which. such as negligence.

another‟s property is destroyed. the injury must have been imnwdiate. and the proper remedy is Action on the Case. Beal. the Law will imply force. 1399. 410 (1725). There is no force. 1345 (1849). Vermont: Saxton Bacon.lie. 59. 580. 4 TB. and not Case. 525 (1778). In many cases where there is no actual force. (1870). 46 Me. and. 724 (1803). See. 0. Rep.‟1 And where a fire is started. B. 829 (1796). Freeman. Peterson. As we shall see.H. Piper. without right. English: Scott v. 335. 2 WE]. as an immediate consequence. London & North Western Railway Co.Vermont: Claim v. Wilson. also. Reynolds v. as we have seen.Rep. Booth v. daughter. Daley. 2 Ld. MichIgan: Eaton r.” The Element of Force UNLESS the case falls within one of the exceptions which we have already stated. 55 III. 540 (1850). 48 Mich. An injury is Page 191 of 736 . Camp. Chamberlain v. 6 Call. 605 (1846). W. 11. Peterson. 1135 (1791). and not Trespass. Rookeshy. 141 (7th ed. 169 (1870). 101 Eng. 18 Vt. for where there has been no act there can be no force. tearing down a fence. goes upon another‟s land. 145 (1894). 151 Eng. 177 fect will be the same as if there had been actual force. for. Illinois: Painter v. For the failure of a railroad company to fence its track. 391. 218 (1839). English: Star v. 591. Bray. is implied in every Trespass Quare Clausum Fregit. Harper. Assault and Battery. and the ef 9. Salisbury. v. 32 Ill.Bep. see: Illinois: Kankakee & S. „~ and in these instances Case. Gordon v.Rep. & W. If a man. English: Sec. 326 (1890). 9 B. Wyatt. & A.Rep. 420. WInnie. Hemmenway. 295 (1710). 4 Exeb. Clark-c. and the same is true where a man‟s cattle stray upon another‟s land. not Case. Illinois: Burke v. Mass. & C. 525 (1885). 12 N.Raym. (Va. 181 (1882).Jordan v. and is injured. or master may declare in Trespass. Gregory v. however quietly and peaceable. 892. 7 TB.W. 12. but the party injured must sue in Trespass.App. 3 East 593. Rep. Of the Forms of Action. whereby another‟s land is overflowed. 423 (1559). Rep. 1 Mass. 4 Grat. and which will presently be explained more at length. 13. notwithstanding their consent. Wilcox. or servant is debauched. Co. Force.) 41 (1806). 5 Mees. 100 Eng. 100 Eng. 92 Eng. Force is either actual or implied. 2 Younge. (Va. is usually the only remedy. 489. as we have seen. Michigan: Barry v. 109 Ei~g. Trespass is excluded. parent.) 343 (1871). 91 Fag. and Trespass is the remedy. & J. Macauley. 6 Serg.. 96 Eng. 50 N. the Law will imply force. 1 B. 263. (Pa.VirginIa: Winslow v. 263. 102 Eng. for instance. so far as regards the Form of Action. the Law implies force. Springfield. or the injury was not to the possession of the plaintiff. 85 Ward v. a mere nonfeasance cannot be regarded as forcible. New Hampshire: Bicker v. Barry v. Powell v. 48 MIch. S. he may %vaive Trespass and declare in Case for the eonseqnelltial injury—loss of services or society. 12 N. but consequential. an Action on the Case will not lie for an injury committed with force. 14.) 151 (1847). 154 Eng. Shepherd. there is constructive force . or in neglect to repair the bank of a stream. 10. if it was not immediate. must be the remedy. if the harm resulted indirectly from the act of the defendant. as we have seen. And where a wife. or enticed away. 20 Mlch. Massachusetts: Adams v. in a mere detention of goods without an unlawful taking. 17 Il1. 220 (1829). 16 111. Sharrod v. and there is no difficulty in determining that Trespass. however. 103 (1854). 22 (1817). Hicks. Leame v.„ -~ TRESPASS ON THE CASE Generally.App. „~ or in neglect to repair a fence whereby another‟s animal escapes on to the land of the person so negligent or elsewhere. On Pleading! c. Case will lie.W. I Salk. 1 Chitty. IllinoIs: Frankenthal v. Hazlewood.Rep. II. Bal~er.Bep. 970 (1828).Rep. & B. 602. Force is also implied in every false imprisonment. and the proper remedy is Trespass. or breaking into a house are examples of actual force. Rinks v. and not Case. Fitzgerald. 181 (1882). Cummlns. to sustain Trespass. 31 vt. 515. 156 (1870). 148 Eng. 1882).Rep. Pennsylvania: Cotteral v. Massachusetts: The Injury as Immediate or Consequential Even though an injury may have been committed by force. and the husband.

in which the only ground for reversal was the selection of the wrong Form of Action—Case Instead of Trespass. 88 A. 131 20. 66 N. after the sale and before delivery. 591. Peterson. after a log has been thrown into the highway. 19.Rep.. 16. 109 Eng. also. I Mass. Tuttle v. Massachusetts: Adams v.considered as immediate when the act complained of. it is consequential or mediate. and cannot amount to a trespass. 297 (1858). But where the damage or injury ensued. if a person in the act of throwing a log into the highway hits and injures a passer-by. B. 34 Mieh. 102 Eng. Reed v. 181 (1882). so that here the two actions are concurrent remedies. Freeman. 30 Vt. 105 A.H. the Action is Case. having become dizzy. see Green v. If the injury is direct and Immediate. W.‟7 If a person lays rubbish so near another‟s wall that. and trespass is the proper remedy. 158. 724 (1803). and the remedy Is in Trespass. Leonard.) 228. That Case is the remedy to recover for an injury to one‟s vehicle from a stone deposited in the highway. 748 (1899). one vehicle is caused forcibly to strike another. Vermont: Gregoir v. 10 BIng. 450 (1901). and the Action must be in Case. Manhattan R. Gregory v. some of it rolls against the wall. fordbly and wrongfully takes the goods. 7 Boyce (Del. as a necessary or natural consequence. see: Pennsylvania: Nirdlinger v. 848 (1833). the Action must generally be Trespass. OFFENSIVE PLEADINGS Frankeathal v.. 98 Mass. Co. 4 Dana (Icy. whereupon the latter pushed him away. EnglIsh: Smith. and not willfully. the injury is consequential. 1 N. itself. Co. B. Tel. some one in passing. 50 N.L. 602. (Did. S puts it out of the seller‟s power to perform his contract. Veeder. however. it appeared that the defendant had seized the plaintiff by the arm and swung him violently around.E. Salem & L. 608 (1885). not Case. Trespass would lie for the forcible and wrongful taking.) 497 (1838). 0 (1913).‟6 If a person forcibly takes another‟s goods. so that the buyer avoids it. tjamp. 9 B. An Action on the Case. In Bicker v. was the Remedy. 571. 428 (1018). 71 Vt. Holland. 169 (1870). 178 Cit. But where.) 342 (1845). falls over it. 48 Mich. 263. The explanation of the result probably lies in the fact that the Court was willing to stretch a point in order to avoid a reversal on this barren technicality. the injury is immediate. Co. though in such a case the injury is immediate upon the violence. not directly from the act complained of. either to the vehicle or the occupant. In Actions where the injury is occasioned by the forcible act of the defendant. the Action is Trespass. through negligent and careless driving. Co. and not merely a consequence of that act.Rep. 15. Lowery v. involuntarily passed rapidly In the direction of a third person. American Dist. and let hini go. And for the negligent failure to close the gatos on a private right of way. 3 East 593. Piper. 99 N. 220 (1829). MichIgan: Brad- Eng. and so Fames v. Case will also lie for the consequential injury. 420 (1870). and. 240 Pa. 49 A.. that the plaintiff. Atlantic City B. the injury is immediate. 18. Williams y. Kentucky: Payne v. and not Case. while if consequential or mediate.Y.. Rutland & B. See. the Action must be Trespass. Leame v. and he caine in contact with a hook and was injured. 18 If a blow be given to the person or property of another. Bray.J.Rep. 410 45 A. 512 (1876). It was held that Trespass. 12 N. Ce.2° Trespass would also lie in such a 11. Page 192 of 736 . flenunenway. and came violently in contact with him. Indiana: Sehuer v. 7 Elackf. 327. Guessford.. will also lie at the suit of a seller of goods against a person who. but if. 560 (1868): Vermont: llolden v. Michigan: Barry v. occasioned it. for the injury by the loss of the sale is consequential. 55 III. it is held that an action on the Case is sustainable for the injury. Belitx. and is injured.‟5 To take an illustration already used. 145 (1804). 112.15 And if a person willfully drives his horse or carriage against another‟s person or property. & 0. Trespass and not Case is the remedy.

Mullan v. English: Turner v.27 If a person entices away. & P. II. 2 Ld. 18 Vt 605 (1846). 10 Wend. 420 (1870). father or master may sue 16 (1911). as the cause of the injury. 41 lU.Rep. 465. 22. Mass. and not to willfulness. Bankes. 410 (1725). or debauches another‟s wife.) 399 (1838). 8] Mich. Moreton v. 1016 (1796): New York: Wilson v. 4 ‟Where an injury is attributable to negligence.H. Meister. 673 (1875). and declare in Trespass. (N. 568 (1808). Hawkins. 1 Str. Favour.) 342 (1826). (N. Vermont: Howard v.Rep.) 257 (1820). Wilcox. 89 Pa. Vermont: Claflin v. Barnes v. By the weight of authority. Barnes. Hammond.Rep.Y.W.) 342 (1526). 4 Barn. the Law. (N. although it wore the immediate effect of the defendant‟s act. Clarke. 2 Burr. Hawkins.25 Case also lies where excavations are made by a person on his own land in such a way as tocause the soil of an adjoining proprietor to falL2° And it lies for injury to person or property communicated by infection. 648 (1890). Wells v. Payne. the injury is immediate and trespass is the proper remedy. 177 (1861). (N.” Richardson. In which the Declaration was in Trespass rather than Case. or if he place a spout on his own building. 1399.Baym. 142 (17th ed. 635. McAllister v. And where water Is discharged on A‟s property. 107 Eng. New York: Ella v. 126 Eag.Y. Tyler. (NY. 80 A.) 324 (1838). New York: Arnold v. 2 Ld. also. Smith. S „I. 1043 (1825). 502 (1860). and front there finds its way on to the property Nichols v.24 But if a person stops a water course on his own land. Campbell. in Dalton v. 349 (1869). New York: Percival v. 14 Johns. the party injured has an election either to treat the negligence of the wrongdoer as the Cause of Action. 527 (1901). implies force. Illinois: Winklcr v. 1 Bos. but only the consequence thereof. 84. Ci. Crouse. 101 Erig. was not the wrongdoer‟s immediate act. in trespass for the injury. 25.H. 384 (1917). Springfield. 22 In these cases the negligence or unskillful-ness of the defendant is treated as the Cause of Action when Case is brought. but did not aver whether the act was due to the defendant‟s negligence. the party injured may. sue in Case or Trespass. TRESPASS ON THE CASE of B. 127 Mich. or to consider the Act Itself. 605 (1846). 19 Wend. also. 21. Ely Beet Sugar Factory (1931) 2 Ch. Ball. 8 Cow. Smith. See.Y. 226. 32 B.” 1 Chitty. Clarke. or servant. or to consider the act itself as the injury. & F. On Pleading. if the injury is merely attributable to negligence or want of skill. 45 NW. 40 Ill. Freeman. and not the defendant‟s act. In the latter case “the flowing of the water. 3 N.Rep. 24‟ Reynolds v. Howard v. (N. (N.Rep. 740 (1760). while in Trespass the act itself is the Cause of Action. at his election. Of the Forms of Action. 127 EugRep.Y. 92 Eng. 472. 117. Knight. 38 Mieb. 313. 130 Md. and to declare 23 in Trespass. Foot.. that where there is an immediate injury to person or property attributable to negligence. Hardern. 1882). & C. McAllister v. Cole & Fitzbugb. daughter. 92 Eng. 26 Page 193 of 736 . 18 Vt.) 23. Y. ford v. as we have seen. 472. 188.E. Nevins v. 326. English: Rogers v.Rep.) 324 (1833). Imbleton. Michigan: Hamilton v. the party injured has an election. 158. 50 N. whereby it is prevented from flowing as usual. and which will not render the act itself a Trespass or Immediate wrong. and alleged that a stone thrown by the defendant‟s blast struck the deceased while he was traveling on a highway. B’s remedy is in Case.Y. 1399. or seduces. Levan. 410 (1725). I Boa. Plainwell Water-Power Co. and Case is the proper action. See. 11am-mond.Y. (N. 12 Wend. 93 Eng. 21 Wend. and in consequence thereof the water afterwards runs therefrom upon another‟s land or house or person. Ogle v. 432. 100 A. the rule is not confined to these particular cases. Wyant v.Bep. but is general. 1338 (1799).Bep. (N. Wilcox.Eaym. New York: wilson v. and the husband.E. 1114. 97 Eng. If a person pours water directly upon another‟s person or land.!. 21. (N. New Hampshire: Bicker v. 126 Eng. PeorIa. 747 (1788). Hickey. either to treat the negligence of the defendant as the Cause of Action and declare In Case. Rathbun v. 466 (1826). See. 10 Wend.) 432 (1817). and to declare in Case. Vermont: Claflin v. also. which was the immediate injury. Peansylvaffla: Strohl v.86 N. e. & P. Belbin.Y.) 330 (1834). 18 Johns. 46 Vt 083 (1874).case2‟ And in the case of an injury arising from carelessness or unskillfulness in navigating a ship or vessel. following eases: English: Reynolds v. Turner v. 2 Bos. 1016 (1796).) 188 (1839). Or he may at his election treat the loss of society or services. the injury is consequential. 6 Cow.

I Street. 138 Conn. 1 MeCord (S. Weedon v. Tullidge v. North Carolina: McClure‟s firs v. 265. 88 Eng. not Case. Blackburn.W. in treating of Trespass. 8 And where a person negligently causes the burning of another‟s property. 6 Munf. Or Buskirk v. Interference ~s-iUi Domestic Relations. 44 Mo. 4 Litt. as the right to reputation. & B. Sarch v.Bep. 5 the injury. South Carolina: Haney v. 909 (1769). Rep.) 412 (1825). 3 East 593. like explosives or poison. Trespass by the latter is the proper remedy. xviii. 101 Eng. Brereton. 202 (1793). Bank. also. Scott v. 151 Eng.Bl. 29. however. 515. as that is merely consequential. Miller. flicker v. is turned loose or put in motion. New Jersey: Van Born v. 12 Mod.) 446 (1828). Wade. treating the Trespass as his Cause of Action. Russo v.3° But if a vicious animal is kept with knowledge of its propensities. and. e.Rep. where a lighted squib was thrown into a market place. 5 M. the injury can never be considered as committed with force. Tevis. Keeling. 218 (1830). OFFENSIVE PLEADINGS gently left exposed. Tenney. and mischief immediately ensues to the person or property of another. (N. or other dangerous thing. 95 Eng. 172 Eng. Feasor. Vickers. being thrown about by others in self-defense. Eaton 180 v. 1360 (1699). 892.Rep. 596. Foundations of Legal Liability. 85 179 27. Chamberlain v. 861. 724 (1803). 1000). English: Mason v.) 387 (1812). ~„ or he may sue in Trespass as in other cases. See. 156 (1870). Freeman. Pennsylvania: Beam v. and not Trespass. 2002. See. (Pa. 96 Eng. Illinois: Burton v. 67 III. Alabama: Burden v. Maine: Decker v.Bep. the new direction and the new force given it by the intermediate persons not being a New Trespass. 7 Ala.) 434 Page 194 of 736 . XVIII. Moran v. English: Chamberlain v. sue in Case. 32. 2 Wm. 102 Eng.) 578 (1845): Kentucky: Jones v. and. 389. the remedy is in Case. 30.) 586 (1795). Shardike. Beckwith v. 140 (1859).Itep. 210 (1873). and a Trespass. but merely a continuance of the original force.) 215 (1817). 515. e. 3 Street. where the property or right injured is intangible. Elliott. (Ky. the injury was considered as the immediate act of the first thrower.C. ultimately injured a person. or health and comfort. Dawes. Freeman. is the remedy.H. 88 Eng. 169 (1844). 333. 420 (1870).) 206 (1821). (Me. and a person is thereby injured. Timbrell. (Va. IS. Sec. 477 the party may elect to bring Trespass.flep. or incorporeal real property. 31. S Watts (Pa. 6 N. and Trespass. 98 Eng. is negli 28. 11 NC. 333. WinnIe. Ilazlewood.Y.2d 222 (1951). (Ill.Rep. Kelley. Indiana: Van Vacter v. 4 Burr. Townsend. Bray. Case. 12 Mod.Hazlcwood. Keeling. Strickland. 5 M. McKillip. and bring Case for the consequential injury. 4 Car. 47 MIeh. (1882). 20 MIch. 11 N. 133 (1825).) 25 (1823): Maine: Clough v. Barnett.) 587 (1820). or where a man starts a fire on his own land and it reaches and burns adjoining property. & P. 271 (Northport. the person may treat this neglect as his Cause of Action. 91 (1767).R. Illinois: Stumps v. or a dangerous substance. & W. Payne. 3 Serg. 5 P. Gammon. 266 (Northport. 322 (1196). (1830).City of Pekin v. if a person‟s cattle stray on another‟s land and cause injury. I Yeates (Pa. 220.2° If a wild or vicious beast.33 If. 3 Wils. 22 Hi. Shepherd. 50 N. therefore.35 Intangible Property or Rights AS we have shown. L. Virginia: I‟arker v. Trespass on the Case. Wilt v. the cattle got out because of the owner‟s neglect of his duty to repair fences. 4 Cow. Mason v. 1360 (1699). English: Leame v. 7 Blaekf.Y. Case is the proper action? 2 As we have seen. Thus. 9 Johns. as where a fire is set by sparks from a railroad company‟s locomotive. however malicious and however contrived.Rep. Foundations of Legal Liability. New York: Martin v. for the matter injured cannot possibly be affected immediately by any substance. 297. 26. 1906).J. (md. 218 (1839). MeCIellan~ 2 Scam. Cf. 3‟ Cit. 151 Eng. the injury is immediate. 322 (1857). also. (N. Dinerstein. & W. 525 (1773). Legaux v. 83 A.) 227 (1839).Bep.

11 East 244. 333. (III. Pennsylvania: Lindeman v. 261. Rookesby. and committed with force.Adol.) 165 (1874). v. 773 (1815): Michigan: Bellant v. 1 Camp. 2 Vt. Minter v. & C. 41 111. Shadwell v. (Pa. Wiswall. Illinois: City of Pekin v. 7&9. Brown. English: Star v. 105 Eng. Englisb: Rose v. Sec. Clementi v. (Va.Eep. 335. 1 Salk. patent. 01 13. 7 lIar. 43. flookesby. 2 lling. 880 (1807). Trespass tvill not lie. McCormick. Decker v. 23 LEd. 19 Johns. & El.Y. 477 (1873). 42. 502 (1866). 308 (18Th. but is merely entitled to the use of the water. 318 (1838). 322 (1857). 10 Serg.4‟ and causing special damages to an individual.Rep.30 or a public highway. 471. & J. The principle here adverted to does not apply to the case. C . Park. 10 Philadelphia (Pa. Strickler v. & 8. 107 Eng. 12 Mod. 103 Eng. 37. 173 (1833). (N. Perry v. 326 (1889). Maryland: Wright v. 3 Denjo (N. Wiswall. 620 (1824). 78 Mieh. 1079 (1831). 598 (1864). and the dam is wrongfully cut away by another. cloulding. a dam has been erected and maintained in a navigable river in connection with a mill.Bep. Wilson. 91 Eng. The right to erect the dam is a franchise. Thus. Vermont: Wilson v. & J.) 67 (1826). Blive.Rep. 35. Massachusetts: Barnard v. New Jersey: Osborne v. water courses or waters. See.Y. Illinois: Ottawa Gaslight & Coke Co.(1840).Y. New York: Wells v. 4 Grat. 09 Pa. Mason v. English: Grensley v. or right of that description. Howell.Y. Hutchinson. is‟ If the injury is to corporeal property. 3 Bar. 873 (1837). 41.) 213 (1818). Brereton. also. New York: Lansing v. 295 (1710).Rep. and is immediate. Butcher.) 383 (1817). Todd. Rep.) 151 (1847).) 63 (1823).44 though a bill in Equity for an 36. Vlrgiala: Jordan v.Y. by Legislative Authority. 39. 101. Petroleum Co. also. 308 (1857). 22 (1857). 295 (1710). Itoworth v. 42 Case is also the proper remedy for diversion of. where the plaintiff is not the owner of the soil. Lindsey. 91 Eng.Itep. 3L Nevins v. Wilson. Mower. 130 Eng. English: Williams v. 68 (1829). 26 N.4° or navigable river.L. 21 Pick. Pollard v. Rep.‟3 And it will lie for infringing a copyright. Blunt v. was a franchise.Rep.. for an injury to which the action was brought. Lasnbert v. 97. and incorporeal hereditament. 2 Mees. Vermont: Wilson v. (N. or for interference with any other easement. must be the remedy. 34. 282 (1837). Wilkes. (N. S Denlo (N. Patterson. 39 111.Y. & W. & Adol. 2 Vt. (Md. Wyatt. 998 (1809). Wells v.) 487 (1823). (Md. 44 NW. 170 Eng. Gammon. “was that the right to erect the dam. Freeman. 19 Johns.Rep.) 283 (1846). Roke. 33. 98. IllInois: Armstrong v. 112 Eng. 40. Howell.. 910. Star v. Smith. ~ for injury to health or comfort from a nuisance. Case will not lie on the ground that an incorporeal right has been injured. 29 Pa. 38 for obstructing a private right of way. Poor. Cooley. 5 Gil. it is conferred by Page 195 of 736 .” it was said in an Action on the Case for such a wrong.Rep.36 An Action on the Case is the remedy for libel or slander. Union Petroleum Co. “The ground on which the Form of Action was endeavored to be maintained. 44 Me.) 213 (1818). 294. 150 Eng. 307 (1824). New York: Lansing v. 109 Eng. 5 Denjo (N. See.Sta. 08 (1829). 86 TRESPASS ON THE CASE injunction and an accounting is the usual remedy. 14 Johns. case will not lie merely because that property was the means by which an incorporeal right was enjoyed. Keeling. J. or other injuries to. I Salk. 335.Rep.) 385 (1822). Miles. 2 Barn. Peoria. as by obstructing light and air through ancient windows by an erection on adjoining land.) 509 (1849). 88 iing.) 385 (1822). 4 M. and that for an injury to property. 93 (1871). Morland. Lyon. 67 Xl).8. where. 225. Thompson. v. 72 Pa. or trade-mark. 2 Barn. Codling. 44. 1360 (1609). Skinner. Maryland: Shafer v. Pennsylvania: Jones v. & II. Okcson v.

or to navigate a particular river or lake by steam. or to erect a bridge. Ch. according to the view he takes of the wrongdoer‟s conduct. nor is it incorporeal. the wrong contained all the elements of Trespass. (N. „ * * So far as the incorporeal right is invaded. 8 49 v. which was caused by negligence which combined facts of force. the sovereign power. 182 3 East. or the navigation of the river. in which instance Case would be the proper remedy. or he may elect to treat the tort as the result of 48 negligence in maneuvering the gun. may be a franchise. (1843). relying upon the fact that the injury resulted directly from the act. In such a situation the injured person sues in Trespass on the basis of a direct and forcible injury. It thus appears that the injured party has a choice of remedies. or with a fuller understanding of the facts.Hep.) 432 (1817). and it was realized that a single tortious act might be at one and the same time a direct trespass and an injury resulting from negligence. The right to keep a ferry. in which case Trespass is the proper remedy. or he may maintain an Action of Tres. Hall.H. or the boats and machinery employed in the ferry. 4‟ When. New Hampshire: Dalton v. Page 196 of 736 . Bray. and hence declare in Case. 3 N. Favour. pass on the Case relying upon the negligence as the basis for the action. When an injury results directly from a Negligent Act. he may sue in Trespass for the forcible wrong. as we have seen. 10 wend. corporeal property is injured.H. 465 (1826). tangible. direct injury. the guilty party‟s negligent driving. immediate and willful. as in the case of the seduction of a man‟s wife. As the action of Trespass on the Case was the Great Residuary Remedy of the Common Law. the act may be the foundation of another tort. be the subjects of Trespass.) 324 (1833). as well as infringement of possession there was clearly a Trespass.Y. Wilson v. may. 102 Eng. although that property may be connected with. but the dam itself is not a franchise. in Dalton v. Smith. the plaintiff-husband may elect to treat the direct injury to his wife or daughter as the basis of the action. there came a time in their development. Favour. The injured party may main- AND CASE tam an Action in Trespass. Trespass is the proper Form of Action. 12 Vt. the injured party has an Election of Remedies. Vermont: Waterman v. or daughter. 593. when the effort to distinguish the two actions on the basis of proximity. if the injury is direct. 724 (1803). 48. 47. 3 N. in Leame v. notwithstanding. (N.the legislature. 5‟ FORM OF THE DECLARATION IN OFFENSIVE PLEADINGS TRESPASS ON TUE CASE 87. to wit.” „~ ELECTION BETWEEN TRESPASS 86. But the same factual situation might be treated as the consequences of an anterior tort. or make the negligence of the defendant the ground of his action and declare in Case. the plaintiff making the consequences of the act—the loss of services —the gist of his Complaint. 14 Johns. broke down. Holland. the redress is by Action on the Case. New York: Buns v. as was held in Williams 4°. 128 4Z. 46 Thus. there was a collision. but the bridge itself. actionable on the basis of a legal principle other than that effectuated by the Action of Trespass. where the plaintiff was wounded by the accidental discharge of a gun held by the defendant. Campbell. therefore. which might be regarded as a wrong of another species for which the remedy might be Case and not Trespass. the forms in which it has found expression are as varied as the wrongs for which it has afforded a remedy. WHILE Trespass and Case were designed to apply to different factual situations. or be the means by which an incorporeal right is enjoyed. Other acts trespassatory in their character may be injurious because of their indirect results. But when Visible. 465 (1826). it is an incorporeal right.Y. But looked at from another viewpoint.50 But clearly.

105 Eng. whilst he was so the possessor and occupier of the said messuage. and did pay. 426. sore.112. (NB. and thereby the left leg of the plaintiff was then fractured and broken. Civil Procedure at Common Law.) 257 (1820). vault. his attorney. 5 M. English: Woodward v.& 8. and was also. 443 (1814). and so remained and continued for a long time. 848 (1833). lay out and expend a large sum of money. (II) The Facts showing the existence of a Legal Duty on the part of the defendant. LANCASHIRE (Southern Division). and the same was then so badly. with the appurtenances. For that whereas the defendant before. and of the injury and damage occurring. and greatly damaged. by Frederick Jones. Hazlewood.—Thomas Moody (the plaintiff in this suit). 18 Vt. to wit. & P. by means of the premises. insufficiently. DECLARATION IN TRESPASS ON THE CASE —ESSENTIAL ALLEGATIONS: (1) IN GENERAL of Trespass on the Case are: 88. the sum of £60 in and about the endeavoring to be healed and cured or the wounds.‘. to Sec. Walton. permitted the said hole to be. 4 Cow. the plaintiff. in the year of our Lord 1845. by means of the premises. Paulet. heretofore.Rep. and for want of a proper and sufficient covering to the said hole. to wit. situated in the town of Liverpool. Wilcox. 218 (1839). Hiekey.) 412 (1825). Vermont: Clallin v. and thereupon he bring suit. sickness. cellar. vault. 153 (1883). 715 (1807). Title or Possession. and defectively covered. wrongfully and unjustly. &c. Rartrunft.) 476. 50. and near to a certain common and public footway there. then slipped and fell into the said hole. and expend. and the plaintiff became and was sick. and premises. 2 M.9 (1866): Massachusetts: Bigaouttc ~. 41 111. 90 TRESPASS ON THE CASE the plaintiff‟s damage of £200. and whilst there was such hole as aforesaid. and disordered. and disorder so occasioned as aforesaid. lame. complains of William White (the defendant in 49. Dawes. 1905). Paul. that. Illinois: Yundt v. in the County of Lancaster. was the possessor and occupier of a certain messuage. thence hitherto. as hereinafter mentioned.Rep. 605 (1846). forced and obliged to pay. Page 197 of 736 . and was prevented from attending to and transacting his lawful affairs and business. Moran v.Y. by him during that time to be performed and transacted.Y. who has been summoned to answer the said Plaintiff in an action of Trespass on the Case. Si. 131 Eng. Diteharn . 372 (St. and premises. MARTIN. (N. on the first day of May. lay out. (N. and at the time of the commencement of this suit. in the year of our Lord 1845. & W.A Form of a Declaration in Trespass on the Case as a remedy for a personal injury is set forth in this section. who was then lawfully passing in and along the said footway. well knowing the premises. 127 Eng. Chamberlain v. (III) A Wrongful Act by the defendant in Breach of his Duty.Bep. with appurtenances. to wit. lameness. cellar. New York: Percival v. 515. during all which time the plaintiff thereby suffered and underwent great pain. to wit. 123 this suit). and in which vault and cellar there was a certain hole or aperture opening into the said public footway. 134 Mass. IS Johns. English: 10 fling. The Essential Allegations in Actions (I) The plaintiff‟s Right. and contrary to his duty in that behalf. DEcLARATION IN ThEspAss ON TUE CASE FOR PERSONAL INJURY iN THE QUEEN‟S BENCH the 15th day of June. Bond. 151 Eng. 2 Bos. Yet the defendant. and continue.Rep.

New Jersey Elec. the right which is Page 198 of 736 . and in the latter case. Hall v. Clarke.) 156 (1820).. 32 N. the plaintiff‟s right or interest in the thing affected must be clearly stated. Pesked. INTEREST OR POSSESSION 89. 7 T. the plaintiff must aver that they were done to the damage. the bailor may maintain an Action on the Case against a third party for an injury to his reversionary interest. THE Declaration in Trespass on the Case must not only allege a right or interest in the plaintiff but it must also set forth a duty existing on the part of the defendant. 9.Rep. the following eases: Illinois: City of Chicago v. English: ON THE CASE—ESSENTIAL ALLEGATIONS. trie fly. 489.” 52 Where the injury is to intangible personal rights such as reputation or incorporeal property rights. See.(IV) Damages proximately caused by the Wrongful Act. 1350 (1812). 101 Eng.P. Revcrsio‟ nary Right of Bailor UNDER the Common-Law Forms of Action. MeDonough. DECLARATION IN TRESPASS ON THE CASE—ESSENTIAL ALLEGATIONS: (2) THE PLAINTIFF‟S RIGHT. 241 (2d ed. 536. New Hampshire: George v. Bartlett. such as an easement and reversion. 9 Pick. 1005—00). 1 N. TITLE.. 32 (1855). and a violation of that duty.‟don v. & W. as where 52. 170 Eng. Hornblower C. 20 N. I Grays Cases on the Law of Property. Florida: Bueki v. 849 Lotan v. 53. but only of an equivocal character. 105 Eng.L. Go. Cambridge. in Potts v. or good cause for arresting the judgment. Rep. he must either state an injury of such a permanent nature. J.J. Case and not Trespass is the proper remedy. L. 60 N. or where the de fendant was in control of OFFENSIVE PLEADINGS some dangerous machinery or a vicious animal. a bailor could not ordinarily bring an Action of Trespass. I Man.H.L. Co. 88 (1813).53 Where any permanent injury is done to a chattel. 2 Camp. Co. the want of such an averment. these actions being founded upon a violation of possession or upon an immediate right of possession. 100 Eng. 828. 119 111. New Jersey: New York. or that he was lawfully possessed of them as his own property. Cross. it arises from the relation of passenger and carrier or master and servant. 541 (1845). 4 T. 1135 (1791). 464. (3) THE FACTS SHOWING THE EXISTENCE OF A LEGAL DUTY ON THE PART OF THE DEFENDANT 90. if the bailment is revocable by him at his pleasure as in the case of a gratuitous loan of a chaise. H. 170 Eng. Fisk & Noreross. In the case of injury to chattels. Massachusetts: Ayer v. 160 (1878). 85.J. In the case of injury to chattels.Rep. also. or if the wrongful acts complained of are not of such a nature as necessarily to result in an injury to the reversionary estate. IN actions for injury to property. v. Harper. 829 (1706).Rep. 157. or prejudice of his reversion. Cone. 234. 54. but „1if the plaintiff sues as a reversioner. Trover or Detinue. I 55. will be fatal on demurrer.1649). If. 338. (Mass.R. the plaintiff‟s right or interest in them will be ordinarily sufficiently described by an averment that they are his goods and chattels. 6 So. 1.Bep. 35 AU. citing Jackson v. English: Withy v. (1859). 1219 (1810). E.E. plaintiff‟s right or interest in them is usually suff i ciently described by an averment that they are his goods and chattels. & Sd. 331 (1854). In many cases it is necessary to State Ward v. S Camp. Pickard. Macauley. 25 Fla. as to be necessarily injurious to his reversion.R. flower [N. however.3‟ The bailor also has concurrent possessory remedies with the bailee. or that he was lawfully possessed of them as his own property.55 DECLARATION IN TRESPASS Facts showing the existence of a duty owing from the defendant to the plaintiff. 43 LILA.

29 Cye. 904 (1851). 88 (1916. 210 Ill..E.. v. 193 (1877). 202 III. this need not be stated.E. see Sargent Co. In Gillman v. (6) the damages. A bare allegation that the defendant owed a legal duty to the plaintiff is a mere conclusion of law and hence worthless. Smith. 17 Wend. Baublis. 24. Illinois: City of Chiengo v.E. the facts creating the duty must be alleged.55 The existence of the defendant‟s duty 50. Carroll. 4G Md. Heisen. I. 474. for which the defendant was responsible. M. Katahdin Pulp & Paper Co. the defendant‟s Wrongful Act and the mental conditions ner v. (1) the relation.. 150 (1917). and the insufilcieney of the statement of clainr may be availed of on a Writ of Error even in the‟ absence of a Demurrer. 448 (1904). 03 Ala. 566. his employer. 67 N. 305. as where the defendant‟s liability is based upon his ownership or control of the premises upon which the injury occurred and his duty to furnish employees a safe place to work59 DECLARATION IN TRESPASS ON THE CASE—ESSENTIAL ALLEGATIONS 1 (4) Seymour „v. that plaintiff was in the employ of the defendant and was its servant.. 111 N. a duty owed by the defendant to the plaintiff. 699 (1918). Schwab & Co. 8 TRESPASS ON THE CASE 184 of responsibility. also. 57. for injury by a grindstone bursting should allege. must be alleged. Northern Mill Co. 74 N. 185 Page 199 of 736 . Alabama: Ensley Ry. the neglect or breach of which would be an injury to the plaintiff. 545. English: toward the plaintiff must appear from facts or circumstances from which the law infers such duty. on this point. as the basis of a Judgmeat. C. (3) the negligent acts of defendant hs permitting the rindstone to he and remain in a dangerous condition. See. which is the substitute for a Declaration. such as intent or negligence or malice or fraud.. 115.E. all the facts upon which the plaintiff relies. 268 III. 14 Cyc. 91 Ch. the plaintiff‟s Allegations commence with a statement of the injury committed. 215 Xli. 366. Vogrin v. To show a Breach of Duty. (5) the due care of the plaintiff (in some Jurisdictions) and the fact that plaintiff did not know of the danger and was not chargeable with knowledge of It. and was subject to its orders and directions in his work.E. 398. Sec. and damage to the plaintiff as the result of that neglect. such.). & W. Chicago Rys. Bayard v. it was held that in an Action of Tort in a fourth class case in the Municipal Court of Chicago the statement of claim must show a Cause of Action based on a Breach of Legal Duty by the defendant. 100 AtI. Maddox. 407. 57 Thus. 274 XII. (2) the duty of the defendant to furnish safe appliances and place to work. 117 Eng. J. (4) the causal connection between the negligence and the injury. and that defendant knew or ought to have known of the defects.Rep. Co. must be stated in the Declaration. showing how it was defective and why dangerous. as facts showing the relation of carrier and passenger. as in Trespass ni at armis for injuries to persons.B. Roniani v. in an action for negligent injury.. Chewning. 388 (laos). Raxworthy v. for example. 326. 332 (1914). 50- A Declaration by an employee against a corporation.E. Shoal Creek Coal (Jo. 181 (1915). 105 N.violated is that of personal security. See. 107. 116 Me. Sels. in which Nelson.E. 71 N. 109 N. 9 Se. 455 (1905). 271 III. Wadleigh v. 429. Maryland. aad no Inducement or statement of his right is necessary. 113 N. v. 88 (1837). 16 Q. said: “All the circumstances essential to support the Action must be alleged. or in substance appear on the face of the Declaration. Mackey v. 268 Ill. In an Action on the Case. it must appear that the plaintiff was in a situation where the defendant owed him a duty to exercise due care for his safety. Co. also. and neglect of that duty by the defendant or its servants in the scope of their employment. In such a case. What Allegations show a Breach of the master‟s duty to furnish servant a safe place to work. The Court emphasizes the function of the Statement of Claim. Macn- TUE DEFENDANT‟S WRONGFUL ACT ZN BREACH OF MIS DUTY 91.” 5$. 458 (1891).. 332. as that the relation of carrier and passenger existed. the case of 5. as that the defendant was in control of machinery or other agency causing danger to the plaintiff. American Steel & Wire Cc. 331. 56 It is usually necessary to state somewhat fully the facts and circumstances showing the existence of a duty toward the plaintiff on the part of the defendant.

22 Ill.Rev. 85 N. 157 Ill. 274. 386 (1908).. 30 JIlL. The Procedural Effect of lies Ipsa Loquitur in Now York.U. Paul. may state generally that such acts were negligently done. The Declaration in General—Tort Actions.LJ. 564. St.Rev. that defendant was a common carrier. 187 (1944). In some actions the scienter (knowledge) must be alleged and proved. I U. by permitting the car to collide with another of defendant‟s cars. Co. New Jersey: Race v. Berry. Prosser.Cal.L. 10. Illinois Cent. 519 (1934). Effect of the Doctrine of lies Tpsa Loquitur. 123 Ill. Servant Cases. 271 (1036). Easton & A. Carpenter. That a General Allegation of Negligence is insufficient. 327 (1908). Co. 536. lies Ipsa Loquitur: Collisions of Carriers with Other Vehicles. 61. 504. 1045) . The Doctrine of lies Ipsa Loguitur. 62 N. Co. on the various aspccts of the Doctrine of lies Ipsa Loquitur. v. 1947). The Doctrine of lies Ipsa Loquitur in California.J. The Procedural Effect of lies Ipsa Loquitur. 66 Cent. In actions for negligence there is some conflict whether a general charge of negligence. Handbook of Common-Law Pleading. p. c. it is sufficient to allege that the defendant negligently and carelessly propelled the engine with great force against certain cars where the plaintiff was working with tile knowledge of the defendant. Selz.Rev. It will not be necessary to plead the facts showing 62 the cause of the collision. Wilmington & N. 166 (1937). Articles: Bond. A mere general averment of negligence is insufficient. (Del. §~ 93. 540. 1049 (1907). or negligence with which it was done and the circumstances showing that it was wrongful. as of the vicious propensity of the dog in an action for keeping a dog accustomed to bite people or sheep. tur and Proof by Inference. fly. 001dm. 67.LRev. having set out the specific facts showing a duty of care and acts causing injury. St. 17 So. as the facts alleged bring the case within the doctrine of res ipsa loquitur. Rosenthal. 192 Iii. 234 111. plead negligence generally. 4 La.Rev. 62. 386 (1903). Carpenter. Co-. Presser. Co. 41 AtI. 980 (1936). it is necessary to state. v.L. Nibs. ChiLlier.L. Rev. lies Ipsa Loqultur: A Rejoinder to Professor Presser. Co. it will be sufficient for the declaration to show that the plaintiff was a passenger upon defendant‟s car. L. Los Angeles. Carpenter.E.. 226 Xli.Cal. 459 (1937). & P. Beckel and Harper. 075 (1895). That a general charge of negligence is sufficient After verdict. That a General Allegation may be permitted. 41 N.6‟ In the case of a passenger injured in a street car collision.L.J.L.E.Rev. 10 So. 216 (3rd ed. Jennings. and that defendant failed to perform its duty to carry safely. see: Chicago City fly. by Ballantine. v. Malone. but also the wrongful intent.LQ. as that defendant so negligently and carelessly operated a car that plaintiff was thrown from the car and injured.Y.Cal. Electric U)‟. Chicago City fly. 22 Corn. City of Chicago v. 710 (1898). 241. But in an action for debauching a wife or servant it is not necessary to allege or prove that the defendant knew that the female was the wife or servant of the plaintiff. (2d ed.. Shipman. 53 caa. 43 (1858). see: Illinois: Chicago City fly. Greinke v. Co. lies Ipsa Loquitur.. 724 (1928). 84 CentL. is sufficient.L. and an 61 allegation of negligence is unnecessary. 10 So. fraud. 7 N. Pleading lies Ipsa Loquitur. 10 SoCal. And in Illinois. Prosser.) 452. The Doctrine of lies Ipsa Loqultur 39.L. id. it is usually meant that the pleader. Ry. 61 N.L. 70 (1941). 41 A. Illinois: East St. 536. 104 (1917).6° When it is said that it is sufficient to ~O. C. 67 N. lies Ipsa Loqu i.E. Presumptions and Burden of Proof (Los Angeles. In general. Sham. 1 Penn. The Use of the Phrase lies Ipsn Loquitur.flev. In general. v. 629 (1895). the injury is stated without any averment of the defendant‟s motive or intent or of the circumstances under which it was committed. 202 Ill. lies Ipsa Loqultur. 1023). 450 (1901). 415 (1930).IN Declarations in Trespass.J. or whether the facts and circumstances -showing negligence must be stated specifically. Wabash. see: Treatises: Sham. 20 Minn. 467 (1937). lies Ipsa Loquitur: A Reply to Professor Carpenter. see the following cases: Delaware: King v.E.L.Q.E. 15 NE. not only the wrongful act complained of. 80 N. Aland. in actions on the case. The Application of lies Ipsa Le~uitur in Master and Page 200 of 736 . 39 (1936).Rev. 94. Shreve. It. Schwab & Co. Louis Connecting fly.

liev. food containers.L. It must appear that the Wrongful Act of the defendant was the legal cause of the injury to the plaintiff‟s right.R. 126 (1935). and must be alleged in order to show a cause of action.Rev. 1108 (1952). 217. 160 ALIt. 72 III. the Law of Torts.L. nd should be laid in a Page 201 of 736 187 . 51 Mich.J. 658 (1947). Pitenirn. 817 (1933). 283 (1944).. Hartnett v.Alaska 1951).Supp. Evidence—lies Ipsa Loquitur—Evidence of Specific Negligence as Affecting Reliance upon General Negligence. 25 A.L. 543 (1952). Whatever damages the plaintiff has suffered from the injury committed by the defend ligence.L.Rcv. 1265 (1946). DECLARATION IN TRESPASS ON TIlE CASE—ESSENTIAL ALLEGATIONS: (5) THE DAMAGES 92.Q.LJ. 13 Mo. Res Ipsa Loquitur in Aviation Accidents. 63. 328 (1951). tiff‟s Res Ipsa Loquitur Against Defendant‟s Presumption of Due Care. lies Ipsa Loqultur distinguished from characterization of a known condition as 1mg- ceived by the plaintiff should be made to appear. “Whereby” and “by means of the premises” are frequently used to charge that injury resulted from the defendant‟s act to plaintiff‟s person or property.J.LR. 63 Harv. lies Ipsa Loquitur: Its Nature and Effect. 369. Pood—fles Ipsa Loquitur as Applied to Suits Against the Manufacturer or Preparer of Ar-tides Intended for Human Consumption. 638 (1944). 368 (1853). 31 Micb. lies Ipsa Loquitur as applied to bursting of bottled beverages. MeLarty. reprinted In Prosscr Passenger Litigation.L. 9 Mo. 169 ALIt. 1494 (1928). lies Ipsa Loquitur as applicable in ease of injury by X-Ray.L.W2d 163 (Mo. 19 RI.C. Seavey. 205 (1952). Rev.V. 1954).R.L. 40 Col. 1450 (1946). v.L.Rev. 83 A. 79 A.63. Co. 1113 (1946). 55 (1951). Louis & C. Ipsa Loquitur. Rev. Slife. 653 (1934). 119 (1952). 1163 (1933). MeGanahan v.flev. fly.L. 37 Cal. Arnold. East St. 151 ALIt.Rev. 37 Va. Boston Store of Chicago.2d 466 (1949).Rev. Directing a Verdict for Plaintiff in lies Ipsa Lequitur Cases. 92 A. Practice and Procedure—The Effect of Plaintiff‟s Pleading on the Doctrine of lies Ipsa Loquitur.R. Tabula in Naufragio. Selected Topics on bor. 5affe.L. Note 63 on Page 186. 167 ALIt. 39 Ky. Prosser. 153 ALE. which follow as the legal and natural consequences of such injury. are recoverable. 3 U. lies Ipsa Loquitur in Texas. 33 AtI.R. See 124 (1944). Vindicated. The Iowa Doctrine of lies Iowa LIter. 1134 (1944). 1 (D. Dewey. 9 Brook.Q.R.L. 415 (1050).L. 600 (1923).L. Waidron. 953 (1047).L. lies Ipsa Loquitur as Applied to a Runaway Car—Lewis v. Pleading particular cause of injury as waiver of right to rely on Des Jpsa Loquitur. 50 Mich. of Des Ipsa Loquitur: LEer. 1016 (1942). 335 (1940). 6 A. Rcs Ipsa Loquitur in California.ltev. 4 A. THE Declaration must state the damages resulting as the legal and natural consequenc es of the injury done.Itev. Physicians and Surgeons: Presumption or Inference of Negligence in Malpractice Cases.L.1943). damage is the gist of the action. 161 ALIt.L. and the establishment of negligence by circumstantial evidence. 53 A. Wolbc. Whitmaker V. 174 S.R. Strain v. 48 (1932). Annotations: lies Ipsa Loquitur as Applicable to Injury to passenger in collision where other vehicle was not within carrier‟s control. S The causal connection between the negligent act of the defendant and the injury rein Aviation Law. I Mleh. 183 (1949).R. 534 (1935). 876 (1944) . 731 (1932).Chi. 141 A.L. 869 (1896) (tIes Ipsa Loquitur). 23 Ky. OFFENSIVE PLEADINGS Ch.L. 468 (1929). In many torts falling within the scope of the action on the case. 1 lies Ipsa Loquitur in Airline 186 Sec.L. ApplIcation of the rule “lies Ipsa Loquitur” to Actions by Employee Against his Employer.Rev. lies Ipsa Loquitur as applied to collision between a moving automobile and a standing automobile or other vehicle.Cal. etc. 185 Iil. 59 A. 557 (1874). Instructions on lies Ipsa Loquitur.App. 152 A..R. 19 U. L. Morris.L. 22 wash. 221 (1948).L.Rev. Paeiñc Alaska Air Express.L. lies Jpsa Loquitur.R. 161 (1940). lies Ipsa Loquitur in its relation to the burden of proof and burden of evidence.Rev. 332 (1914). 15. 78 ALIt. 162 ALIt.L. 59 A. Evidence—Application of lies Ipsa Loquitur to Automobile Accidents—ti) The Doctrine in General. Evidencc—Presumptioas-----Plain. 26 Tex. 302 (Ann Ar-A Tare in the Field of lies Ipsa CinL. lies Ipsa Loquitur: Applicability to Airplane Accidents: Haasman v.L.L. lies Ipsa Loqultur Doctrine as Affected by Injured Person‟s Control over or Connection with Instrumentality. These may be general or special. 100 F. Comments: Torts-lies Ipsa Loquitür—Injury to Adjacent Nerve In the Course of an Operation. 35 lies Ipsa Loquitur (1951). 100 (1936). and special damages should be alleged specifically. 485 (1029). 1 Buffalo L. and that the negligence was the 64 proximate cause of the injury.2d 528 (1949). 24 Gco. 14 111. 18 So. 37 Cornell L.I1. 448 (1936): Endenee—Negligence---—Res Ipsa Loquitur—The Doctrine Applied in nn Action for Malpractice to do away with the Need for Expert Testimony.L. 393 (1950). Loquitur.Rev. lies Ipsa Loquitur as ground for direction of verdict in favor of plaintiff. “lies Ipsa Loquitur” as a Presumption or a mere Permissible “Inference”. Negligence— lies Ipsa Loquitur—Justification for a Directed Verdiet in Favor of the Plaintiff. 93 TRESPASS ON THE CASE ant. Ellis 64. 257 (1048). Strain. 643 (1950).

39 L.A.Va. Thus. and case may lie for the injury.67 PARTICULAR APPLICATIONS OF CASE AS THE GREAT RESIDUARY COMMON-LAW REMEDY FOR VARIOUS WRONGS 93. 79 N. & C.City of Chicago v.” But often one of the parties to a contract may commit a tort in the execution of it. and by reason thereof. 51. Torts in Connection with Contract MERE breach of Contract. Goodman. But through the continual and constantly expanding application of Case.) 101 (1845). Coopwood V. 67. 97 (1826). Pay. Bath. but not quite identical with Trespass. In Case. 11 Ark. Dearborn v. 530. 134 (1857). 68 SE. it lies against attorneys or other agents for neglect or other breach of duty. involving General Damage. 23 L. 484 (1874). 773 (1825). Pollard v. Alabama: Walker v. 43 Edw. New York: Masters v. Murmford. involving mental suffering.Dec. hold. 148. 35 Mich. English: Howell y. most of our modern law. S . they must be alleged specifically. the first instance of which appeared in 1369. See Foreman v. quasicontract. Jackson. not otherwise remediable. 70. which may be committed in the course liabilities. 239 (1910). ing that a Judgment cannot exceed the ad damnunv laid in the Declaration. v. 15 Pick. 577. WIlliams..L. Michigan: Potter v. 71. involving negligence. 133 111. 212. Illinois: Garvey v. without more. Massachusetts: Ashley v. 33. Varnum v. and for certain statutory THE history of the Common Law Proced •ure is the history of moral rights. 7 Bill. 17 W. 242 (1849).S. such as Mental pain and expenses of cure. 527. 20 AppD. until the persistence of a demand for remedy developed the Action of Trespass on the Case to cover all cases similar to.Dec. as his recovery will be limited by the amount stated. and tort.7‟ though it is 68. 73 III. Root.I. holding that a lack of an ad darnnum clause in Trespass on the Cnse is demurrable. such as those incident to hailments and public callings. (N. and also for the nonperformance of certain obligations prescribed by law. 212 (1853). Sims v.C. Bolton. 259.E. Arkansas: Penningtons Ex‟rs. 155 Ill. 8 Mass. Brown. ii Johns.66 In the beginning the new action was merely supplementary to the old. 372. or other business. Federal: Jackson and Sharp Co. damage is usually an essential element of liability. involving a public nuisance. It. Church v. I El. of performance of a contract. Baltimore and 0. involving damages in deceit.Va. Rhode Island: Holmes v. 225. 52 Am.80 Recovery will be confined to the injuries alleged by the declaration to have resulted from the particular negligence charged. 77 (1811).69 as a remedy for a wide variety of human wrongs. 417. 243.Dec. 21 Ann. or in its nonperformance.65 As in all other actions the damages may be either general or special and. contract.) 504 (1862). 105. 190 (1850). III. f. Dearborn.App. Gilbert V. New Hampshire: Corey V. has been evolved. property.R. Involving libel and sIan(lcr. Special Damages must be pleaded with particularity. 15 Mass. 5 B. 601 (1908). Co. p1. Goodman v. 316 (1818). 67 W. 21 Ala. unlike Tres pass. 39 A.J. New York. 01 U. 8 LILA. that where there is a wrong there is a remedy. McLean. Ithode Island: Sullivan v. without 65. 76 A. 30 Ala.Ed. Walker.. (l~lass. Peck. 20 R. will not sustain an Action on the Case. Sims. Waterman. $5 NB.Y. Veil. Covenant. 274 (1877). 105 (1902). if special or peculiar to the case.Cas. or misfeasance in the conduct of a cause. or Debt. Young. 68 Am. 262 (1850). 26 Miss. Metropolitan ~Vcst Side Elevated It. Case lies for certain wrongs of negligence and misfeasance. but the remedy is Assumpsit. McGlamery v. remedy because of the lack of an appropriate Writ or precedent in the Register of Writs. 308 (1875). 06. 35(1369). 4 Allen (Mass.Y. 545 (1857). 647 (1852). 24 N. Martin.sum sufficiently high t~i cover all the plaintiff expects to prove. first uttered as early as and by Bracton. It is for this reason that the Action on the Case is fitquently referred to as the Great Residuary Remedy of the Common Law. Rep. West Virginia: Washington v. the Common Law has been able to largely make good its proud boast. v. Lyon. 482.) 479 OFFENSIVE PLEADINGS Page 202 of 736 Ch. Stratton. S9’ YB. Sawyer. Co. 765 (1866). (N. 1063 (1910). 108 Eng. also neglect of official duty.) 440 (1834): MIssissippi. 5 Am.

649 (1823). S CoI. 1 Cow. his principal is not limited to an Action of Assurnpsit. 73 Even though there may be an express contract. & B.Y.Ilep. Gilbert 3. 70 III. and others having the use or care of personal property. Pullman Palace Car Co. 688 (1883). 688 (1883). x.) 260 (1867). & E. ¶3. and Comment. 73 (1827). 582 (1827).. Dunnavan. Mast v. 14 (1916). also. Pacldngton. 108 Eng. 688 (1883). Shipherd v. afterwards committed in breach of the contraci. Botch v. & It. Flint & waning Mfg. 273. Rep. Brown. 319. Corn. Nevin v~ Pullman Palace Car Co. for Breach of the Contract.L. 20 Grat. and obtains it on his promise to take security by first mortgage on property in value double the sum loaned. 210 (lSfl). 465 (1887). Clifton.) 264 (1871). And Case Is a proper remedy against one who Las hired (1831). Farrell. 268. 93. 491 (1582). 40 Am. MeCasland. 525 (18851: Nevin v. Pozzi v. 552. 106 111. Field. Wood. Kentucky: Bell v. 105 Eng. 106 Ill. (Mass.more usual to declare in Assumpsit. 1 Vt.) 264 (1871).. (N. 539 (1823): Virginia: Southern Express Co. Bull. 6 Phila. 169.Y..App. 20 Grat. 79 N.E. (N. Cadwell v.) 147 (1833). 12 LILA. Pennsylvania: Lynch v. 451 (1827). Boston. v. Chitty. 95 Eng. warehousemen. And Case also lies for negligence by a surgeon in performing an operation. an Action on the Case as for a Tort will lie for dis~ regard or violation of that thEy. 229 (1826). 72 For any nonfeasance by a party in a public employment which he professes.llep. Illinois: Kankakee & S. 72. Virginia: Southern Express Co. the use of which is directly granted by Contract under Seal. Beckett. Vermont: Crooker v. McVeigh. ~ Man. but they are also liable in case for an injury resulting from their neglect or breach of duty in the course of their employment. The party need not bring Covenant on the agreement. 69 Pa. Where a person engaged in lending money on real estate security solicits money to loan. New York: Bank of Orange Coun~ ty v. and for converting. 12 Pick. Case is the Proper Remedy.E. 751 (1841). it seems that Case for an act. an Action on the Case will lie by the party injured. LIndsey. & c. English: Carbett v. v. Rep. 3 Am.. See. v. Striekier -v. Meveigh. & 0. 11 Ul. generally. 605. 152 (Springfield. 3 IVend. 95 EngR 004 (1772). 5 Barn. Breach of Agreement to Repair. Rep. Hawes. 16 Serg. 13 Am. 666 (1908). Co. v. Goodson. 74.Dec. as to Actions on the Case as deliefo.~ “If the contract be laid as inducement only. 13 Am. 8 Adol. wharfingers. 5 Barn. whereby the purchaser Is Injured. 222. 924 (1900). Indiana. 222. 1106 (1835).. 3 Wils. (Pa. Todd. English: Dickson v.Rep. Where there is a positive duty created by implication of Law independent of Contract. Burnett v. still. (Va. 438 (1862). 451 (1827). 93 Wash. the party may be sued ex‟ delicto in Case for any neglect of misfeasance (1814). 112 Eng. Co. 23 Ill. in performing it. lOS Eng. 167 md. to Use of Barton. Co. 160 P. Lynch. 348. Burnett v. but may sue in Case. in its nature a tort or injury. whose liability is founded on the Common Law as well as upon Contract. 48. Massachusetts: Tuttle v. Adams. And see. such as a defective rope. 6 Barn. 503. as against carriers. 108 Eng. Pullman Palace Car Co. (Pa. 220 (1826). 609. Shipton. if a Common Law duty results from the facts. 1833). 102 Mass. 145 Mass. also.) 136. 10 Serg.) 158 (1830). Flessher v. Cccbett v. It. 13 N. whereby the money is lost.” ~ Thus. H. A Treatise on Pleading Action on the Case. Lindeman v.Rep. Dec. may often be adopted. 491.) 868. Landlord & Tenant. 2 Wils. Fitzgerald. Lockwood v. ~ 1. 133 trig. And where the manufacturer of an article negligently furnishes to a purchaser something different from what be purports to furnish.Itov. & It. Case will lie f or not accounting for. 22 Am. Paekington. & P. Carstens racking Co. 16 Am. 46 Am. Massachusetts: School District in Mod-field v. Co. 963. Case will lie. Hutchinson. It. 222. Rep. & 0. Wabash. where there has been a Contract: Connecticut: Page 203 of 736 .Dee. a horse and has Ill-used it. Shreeve v.Rep.. & 0... For the diversion of a stream of water. Co. 502 (1869).) 63. 46 Am. 17 Ill. See.Rep.Dec.Rep. Brown v Edgington. though arising out of a relation or state of facts created by Contract.) 322. Assumpsit is the usual remedy for neglect or breach of duty against bailees. Lynch. 438 (1873). W.Rep. as where a common carrier fails to perform its common law obligation to serve all who apply. 8 Am. (Pa. and then takes a second mortgage unknown to his principal. 834 (17661. Illinois: Warner v. 414 Illinois: Mevin v. By. St.11g. 28 Iii. (Va. 279. 380 (1859). 6 Barn. 106 ill. L. & C. I Dana (Ky.App.

7S. V. 100 Eng. Dewey.Y.Dec.Y. t Case will lie against a surgeon or agent to recover damages for improper treatment.) 138 (1810).Am.Elsee v. before that time. 102 Eng.Stoyel V. Fed. 4 RIng.) 325. not introduced into a written contract between the parties respecting the subject-matter of the representations. 227. Rumery. 99 Eng. Beebe v. WIlkins. 7 Wend. 586 (1831). 1 Street. . Maryland: Philadelphia W. Brewer. it is a recognition and aflirmance of the contract. Rep. but that the defendant. or the proceeds of such bills. Westcott.Cas. and not exclusive. 44 Web. 82 (1793). (N.8° and for fraudulent representations.) 380. 3 L. Co.Y. or for want of skill or care though there is a concurrent remedy by Assumpsit on the contract. at least before the expiration of the credit. Federal: Vasse v. 390 (1816). 7 Am. (N. 22 Oonn.81 56.) 380. 693 (1827). New York: Culver v.75 And Case is the remedy for false representations (required by the Statute of Frauds to be in writing) as to the credit of a person. & B.H. Constable.S. 13 Johns. and to use those materials. 280 (1862). 53 (1873). White.Ed.4. 154. made use of new 77 materials. Adamson V. for if.~ And a Count in Case 188 stating that the plaintiff. Si. 102 Eng. 210 (1810). Smith.) 92. 6 East 333. Foundations of Legal Liability. 375 (Northport. 586 (1831). New Hampshire: Mahurin v. Freeman.Y. bills delivered to a person to be discounted. 19 (1822). 3udin. Avery.) 226. Smith. Wardell -v. Miles. $0‟ English: Pasley v. 3 T. Ft. Assumpsit is brought to recover the price. (N. 200. (N.. 59 Am.Y.. Fosdlek. 6 fling.Dec.7° It is also the proper remedy for any other fraud or deceit independently of and without relation to any contract between the parties. 7 Wend. 17 Wend. (N. 6 N. 240 (1880). Pittsburg. Barney v. 6 Crancl. Evertson‟s Ex‟rs. 77. Storer. 22 Am. 13 Johns.Y.B. 7 Craneli (U. and it may be successfully met by the defense that the term of credit has 82 not expired. B. (N. Bulckley v. 5 .C. being possessed of some old materials. 143. retained the defendant to perform the carpenter work on a building. (N. EmIgh v. 401 (1853). 7 Am. 383 (1816). Allison. Jarvis. 1314 (1805). 100 (1807). v. 48 Ill.Rep.Rep.) 395. Peck v. 15 (1778). 1 Doug. North Carolina: Smith v. 2 East 446. Rep. 4 (Bias. was sustained.) 21S (1828). 128. 54 (1868). 21. Knapp. Monell v. Though Covenant or Assumpsit is a concurrent remedy. New York: Culver v.) 531 (1807). 439 (1802). the proper remedy is Case (or Trover).Itep. 3 LEd. for the remedy on the covenant is merely concurrent.Dec.Brumbaeh If goods are obtained on credit through a fraudulent contract. 22 Ain. Upton v.) 193 (1837).4-I0 (1867). English: Samuel v. thereby increasing the expense.No. Co.W.) 114. Vail. (N.Dee. Eumiston v. 5 TB. and it makes no difference that the tenant has covenanted not to 84 commit waste. 28 fll. 25 MIch. 155 (1873). 130 Eng. 101 Eng. 73. 39 Md. „a‟. (N. Glass.Dee.Itep.83 A reversioner may maintain an Action on the Case against his tenant or against a stranger for commissive or wi]Jfui waste.Y. 8 Johns. 6 Johns. Michigan.Y. 450 (1789). 38 Am. Ward v. WIlliamson v. As to whether the action will lie Page 204 of 736 . New York.) 181. Clark‟s Ex‟rs. to the injury of the reversion. 1906). 51.Dec. Illinois: Applebee v. 2 Am. 271 (1812). Wiman. 2 Day (Conn. Federal: Russell v. 2 Day ((Joan.Dee. 13 Johns. 372 (1816). 7 Am. TRESPASS ON THE CASE to his own use.) 422. Harding. 207 (1810). Colden. Carter v. Gatward.. Case will lie for a false warranty on the sale of land or goods. 28 N. Rep. instead of using them. & C. 79. Avery. English: Stuart v. N.Dec.

423. and that J. Stevens. that where the Page 205 of 736 . however. Dockray. 135. and that the only remedy is on the covenants in the lease. 1819).Dec. 657 (1776).App.Rep. 103 Eng. and prevent him having satisfaction. declared: “This appears to be an action of the first impression. It is the pride of the Common Law. from the statement of the plaintiff‟s case.Rep. Illinois. The principle which governed the decision in the case of Smith v. 392. It is sound principle.85 OFFENSIVE PLEADINGS Injury to a Lien IN the New York case of Yates v.Itep.Abr. 108 EngItep. Jones v.Rep. 156 Mass. 13 NW. 764.E. 85 Eng. 1 Taunt. that he has sustained damage by the act of the defendant. Hallock v. (Carth. 1 Bos. had no other property with which to satisfy the Judgment. however. for the plaintiff was not in possession. The defendant Demurred.Rep. was about to take out Execution and seize a certain lot of land. 280 (1816). B. 49 Mich. 7 Taunt.Y. as assignee of a Judgment from one K against J. alleged that he. Of the Form of Action. 96 Eng. Trespass will not lie. 5 thug. 219 (1889). Rep. 8 against a tenant for permissive waste (that is. there is any remedy for him. 93 III.Rep. Gibson v. (NC. Thornton. 85 Eng. then.E. Tonstall. & P. & 0. 58 N. Of the Form of Action. 265. 34 Am. In some Jurisdictions. Carrington. 323b. there is a conflict of opinion. 194. (N. Heilbronn v. English: Kin~ lyside v. 9 Barn. North Carolina: Gladwell v. Rep. 220 (1826).) 216 (1804). 50. New York: Culver -v. 127 Eng. 93 189 Cli.Rep. 2 Cal. II. in overruling the defendant‟s Demurrer. English. 802 (1882). Burnett v. I Chitty. 4 Taunt. Powell. 20 Ill. 13 Vin. 129 Eng.) 280. Steggall.Flower. (N. 7 Am. 22 Am. 459 (1069). 98.Y. II. 531 (1813). 163 (1879).H. Bembow. 109 Eng. 252b.) 290. Avery. and on the argument contended that the plaintiff. Kellogg v.) 733 (1866).Y. leaving the ground of less value than the plaintiff‟s judgment. Joyce. A. and not being in possession could not maintain any action against the defendant. (N. 127 Eng. it is in this Form of Action only that he can obtain it. 1037 (1670). that wherever it recognizes or creates a private 85. 1 Saund. Fosdick. and with intent to injure him. 190 Sec. New York: Short v. by means of the Judgment in favor of Kane. 156 (1817). 128 Eng. 586 (1831). 2 Saund.Dec. having a mere lien only. who is answerable only to the person in possession. and that the injury to the property was done with a full know!edge of the plaintiff‟s rights. Y. 30 N. 165 N. a neglect to repair).Bl. 142 (3rd Am. which was a lien on the property of J. 22 (1829). Lynch. and that there was no precedent for such an action. from the second London edition by Dunlap.) 33 (1814). 82. from the second London edition by Dunlap) (Philadelphia. 5 Barn. Wells. Michigan: Walsh v. in order to pi‟event the plaintiff from having the benefit of a Judgment he had obtained against him. 83. If. 8 But Is seems to lie against an assignee of the lease. The Court. 551 (1802). A Treatise on Pleading. Herne v. 1111. 2 W. 807 (1808). well knowing the premises and intending to injure the plaintiff. 553) is somewhat analogous. Attersoll v. EnglIsh: $4. Wilson. Prentice. c.Bep. 7 Wend. 13 Johns. in the Declaration the truth of which is admitted by the Demurrer. 1819). which he alleges was done fraudulently. Philadelphia. Warden v. we are to assume that the plaintiff had acquired a legal lien on the property. ° the plaintiff. Greene v. A Treatise on Pleading. being insolvent. 8 East 348. 1 Chitty. c. right. Massachusetts: Burns v. The tenant‟s remedy against a stranger is Trespass. (N. It was there ruled that an action will lie against the defendant for confessing a Judgment by fraud. It is obvious. Seare v. Cole. that the defendant. & C. Y. Ferguson v. 13 Johns. Turpic. 376 (1807). immediate recovery of the price Is allowed. 3. Sisson. 759 (1900). The facts stated in the Declaration being admitted by the Demurrer. Hill. The books do not furnish a precedent in its favor. it also gives a remedy for the wilful violation of it. 473 (1805). (N.) 325. and the assignment of it to himself. Herzog. 580. It seems that it does not lie. 107 (3rd Am. tore down a barn on the premises worth $300.

to cover what was in fact an indirect. SavIlle 64. 34 A. 20 N. Sec. 68 (1600). Treude °~ that the landlord might have either an Action on the Case or Trespass against a tenant at will. TRESPASS ON THE CASE mainderman is not without remedy when the injury is of a permanent character affecting the inheritance. Arnold.Rep. or good cause for arresting the judgment.° 2 injury to Freehold by Tenant at Will AT Common Law. 23 Pick. Maine: (1896). he must either state an injury of such a permanent nature as to be necessarily injurious to his reversion. the lack of such an allegation. 22 N.Y.Rep.” ~ Injury to Reversionary interest TRESPASS quase clausum fregit may be maintained by the owner of land for an in jury to his freehold where it is in the occupation of a tenant at will.88 This doctrine was not extended so as to apply to a remainder-man who was not entitled to possession. It. Shrewsbury‟s Case. the tenant at will in fact remained in possession after his misconduct. 34 A. 94. 273 541 (1844). 1021. 13 Me. was clearly violated.Rep. See also.. 88.° And he had no Remedy in Waste against a tenant at will. Ilallignn v. which was decided under the Reformed Procedure. 77 Eng. was commandeered to serve. he shall be responsible in damages for the same. as clearly laid down in the leading case of 191.Y.Rep. 93. Clark. Shrewsbury‟s Case. see the discu~sion under Injury to Freehold hy Tenant at Will. Actually there was no direct forcible invasion of the landlord‟s possession. Case not being in existence when the problem first arose. it was said in West v. 92. 305 (1823). and to fill in a temporary gap in the remedial law. Jackson.J.) 136 (1814). in order to maintain Trespass. by resort to a fiction. 08 (1600). Cf. 91.88 But the reversioner or re 87. 482. although its fundamental theory that it lay only for wrongful interference with possession.fraudulent misconduct of a party occasions an injury to the private rights of another. 93 11 Johns. And the proof of this is that when Case came in. 225 (1860). 88 Me. Perkins. 482. 519 (1810). La wry. In eecord: Gonlet v.Y. and such is the case presented by the pleadings in this cause. 77 Eng.L. 89. 519 (1814). Jackson. Jackson v. 558 (1854). 5 Co. But in the face of an urgent demand for a remedy. 536.) 88 (1839). 62 Me. Pesked. Lawry V. ~. (N. Page 206 of 736 Anonymous. Cr. 510 (1814).9‟ is that where the plaintiff sues as a reversioner. 273 (1806). (Mass. 13a. 88 (1813). In time however Trespass ceased to be used and the accepted remedy became an Action on the Case in the Nature of Waste. 15 In. Campbell v. consequential injury to the landlord‟s interest. was stretched beyond all semblance of its original theory. (N.) 511 (1806). 11 Mass. Bartlett v. Cf. Starr v. in fact the tenant had possession by legal means. . 5 Co. Lawry v. a landlord. In this situation it has usually been said that the wrongful act of the tenant at will terminated the tenancy. Thus Trespass. Kimball v. Trespass 90. the plaintiff must allege that they were done to the damage or prejudice of his reversion. And it has been held that such an action will not lie by the reversioner for waste committed by a person acting under the authority of the tenant for life. will be fatal on demurrer. ISa. 11 Mass. restored the possession to the landlord. or if the wrongful acts complained of are not of such a character as necessarily to result in an injury to the reversionary estate. following immediately hereinafter. must have been in actual possession of the premises 3 94 at the time the trespass occurred. Starr v. Jackson.Rep. for in such case an Action of Trespass on the Case would heY0 The Rule of Pleading. who could then maintain an Action of Trespass.Rep. As to the true explanation of this result. 88 Me. 1 Maule & 8. and in the latter case. 234. Sumner. Starr v. 11 Mass. 123 Eng. New Jersey: Potts v. Lawry. but only of an equivocal nature. Gragg. Shattuck v. 87 (1836). Chicago & Rock Island It. I Johns. 105 Eng. Asseler.

8 Mees. 98. to warn the servant of dangerous conditions on the premises. adopted in order to sustain the Remedy by Trespass. (N. 1083. both upon principle and authority.Rep. Hazlewood. and the more important one of seduction and disgrace. 151 Eng. 218 (1839). 18. and per Holt. It could hardly be said that Trespass and Assault would lie for such an act.) Neither the injury to the person of the child nor the property of the plaintiff are.R. in which. in that action.°8 The order of development is illustrated by two New York cases. 187. By resort to a fiction.1 decided just twenty years later. 151 Eng. 515. laying the seduction. 909 (1769). They are little more than a mere fiction. Ld. the courts treated the daughter as the servant of the master. Dawes. and the declaration framed to meet the consequential injury. in the second. with the consent of 97. thus enabling the father. 1032.h. again. and not the defendant‟s act of seduction. C. 5 Mees. J. Chamberlain v. 39. ~ v. 79 Eng. The father is then put to his remedy by Trespass quare domum fregit. 95 Eng. in the first. who thus acquired a possessory interest.B. is.B.. ever taken into the account. sue in Case. as the injury. and here. Tu1]idge v. & W. The seducer is received at the dwelling of the father on the footing of a suitor. in truth. 3 Wi!s. unless he has an election.Rcp. without exception. to provide safe appliances and equipment.. Haziewood. 218 (1839). he thus having a license to enter the house. 151 Eng. the father would be remediless for the most aggravated form of the injury. Wife or Servant husband or servant to sue first remedy given by the Common Law was Trespass vi et armis. When Case came in. Woodward v.CroCar. 2 B. &c. <oilier & Peppy ComLaw Pldg.Rep. the Supreme Court of the State sustained Case. a proper remedy. H.Itep. Trespass was commandeered to supply a remedy. & W. (SeIw. note (17) cites 2 T. 515.K. it was utilized as a remedy for what was clearly an indirect consequential injury.Seduction of Another Man‟ s Daughter.9~ decided in the year 1805. 167. as that is merely consequential. wife or servant. the 192 OFFENSIVE PLEADINGS 7 ent or master. Moran v.) 476. Accordingly. in Chamberlain v. resulting in damage. that Case. to provide suitable and competent fellow servants.) 292 (1805). Hazlewoodj‟ we find the plaintiff bringing Case for the consequential damage. The direct injury may be waived in all cases. the law implying force. in which the Dee]aration was in Trespass.—8 WHEN the demand for a remedy arose for the seduction or debauching of another‟s daughter. treat the loss of society or services. if we are to be governed by the technical rules relating to an Action of Tres pass. whereas. we think. at his election. disregarding entirely every consideration except the loss of service. does not thereby become a trespasser ab initio. A person who is guilty of abusing an authority in fact. 5 Mees. 5 Ch.. (N. 764 (1630). Seduction was an interference with such possessory interest. in 1825. 715 (1807). The defendant does not become a trespasser ab initio. 2 Cal. declaring: “It is clear.96 Here again the injury was an indirect consequential one.Rep. as in the tenant at will case.” 2 Actions Against the Master for Injuries Occasioned by the Wrong of the Servant— Vicarious LiaNlity THE relation of master and servant was and is contractual in nature. Trespass was held to be the proper remedy for the seduction of a daughter. Walton. 3. for which Trespass thus became a remedy. 8. Wade. 218 (1839~. In such case he may now. of which he avails himself to accomplish the seduction. but it is otherwise where a license is given by the law. & W.Y. Alcerley v. Case not yet being available. 98. The master was under a duty to provide a safe place to work. N. and to make reasonable rules to regulate the conduct of the work. & P. A very usual case may be supposed. P. EnglIsh: the daughter. not an injury to the possession of the husband. 127 Eng. par95. by way of aggravation. Once the relationship was established obligations accrued on both sides. for license was given by the party. Raym. Haines.Rep. On the other hand Page 207 of 736 . per Euller. and. 515.

Dee.Dec.9 (1831). which involved Trespass against a railroad company where the Conductor forcibly expelled a passenger from a car. Dalby. the remedy against the master is in Case. 4 Barn. 93 Cow. 306. & c. See L4 Sec. 507 (1838). Castleman.Dec. B. Wilcox.) 343. Crickett. & P.Eep. 48 111. Louis A. „cc Rudy. 223. Hartford & N. 501. H.8 Under the early decisions such as M‟ Manu. 43 (1800). but if it occurs as the necessary or natural and probable consequence of an act of the servant. And it is important to observe that once the master-servant relationship is established.3 Such liability has to do with those acts so closely related with what the servant was employed to do. 17 III. the rcmedy is Trespass. Massachusetts: Barnes v.‟° English: Moreton v. 1042 (1825). on the theory that the fiction of an implied command of the master was inapplicable. Some Phases of the Law of Master and Servant. article bY Powell. 5. and which were reasonably incidental to it. 19 III. the master may be subjected to vicarious liability for the servant‟s torts. Co. ~. Illinois Cent. TRESPASS ON THE CASE 4 the case of Joel v. even though. 1 (1910).Rep. Hardern. 32 Am. 28 Conn. (N. injury immediate. if the act was forcible and the 4.Y. New York: Wright v. Peacock. 448 (1868). a kind of insurance obligation to answer for the acts of the servant. 57 (1814). St. Mali st Lord. 107 Eng. 502. (N.s v. 32 Am. ~.Y. I East 106. also.) 474 (1832).. Chicago & N.) 412 (1825).Y. 507 (1838). Illinois: Arasmith v. S Wend. 4 Cow.App. (N. B. Cf. depends upon the time. against the servant. Whallon. 253 (1868). & W. ruled that a master was not liable for the tortious acts of his servant where the servant was not in pursuit of his master‟s busi ness. Co. v. 9 Barn.Y. 220 (1829). 6. although the master is free of any wrongful conduct. & C. (N. 47 III. Piper. (N. and. 19 Wend. it might for the same act be Trespass. although of questionable validity. 95 Am. it has been held that wilful torts may be so connected with the employment as to fall within its scope. 1338 (1534). 5 but under some circumstances. Co. 102 Eng. B. & C.the servant was required to exercise reasonable care for his own safety and in the exercise of his duties within the scope of his employment. place and purpose of the act. v. 109 Eng. See. 10 Col. 19 Wend.” In general. Gregory v.) 343.) 878 (1834). In 2. then the act is the master‟s. Crickett~ the courts refused to hold the master liable for intentional misconduct on the part of the servant. Rep. 2 Dana (Ky. also. Morrison. the master is subject to liability for injuries caused by the tortious conduct of the servant where such conduct is within the scope of his employment. And in 1834. in allocating the risk of the servant‟s conduct. but was “on a frolic of his own. 489. Toledo \V. Wright v. 591.Dec. the master may also be liable in Trespass. 39 N. 172 Eng. 580 (1856). New York: Broughton v. Connecticut: Haven v. together with its similarity to the acts authorized. 6.Y. 193 6 Car. W.Y. as they could be viewed as methods. 39 (1882). M‟Manus V. Herd. 353. ordered expressly or im pliedly by the master. 490 (1868).LRev. Tample. 11 Mass. 418 (1825).° Where an injury arises from the want of care or negligence of the servant. As to what acts are authorized. 100 Am. 298. Wilcox. of carrying out the master‟s instructions. but the latter is nevertbcless liable on the principle of rcspondeat superior. Alienation of Husband‟ s Affection Page 208 of 736 . Kentucky: Johnson v. 375 (1857).flep.) 412. Harmon. See. Co. English: What the servant does in the course of business without directions is not the master‟s act. But under modern law. B. and the remedy against the master for injuries resulting from the wrong of his servant is in Case. V. 11 1ll. Baron Parke. 381.

whether casco or precedents. for there has been no trespass. The scienter that the defendant knew his statements to be untrue. 25 so. 3. Comparatively recently a case 11 of novel impression was considered involving the issue as to whether a wife could maintain an action under New Jersey law against the defendant for “maliciously enticing away the plaintiff‟s husband. 4. Selkirk.14 to wit: 1. also. 42 A. 410. 71 Mieb. Sims.W. of Dam. 3 TB. the remedy is in Trespass. 15 3. Griswold. 41 FIn. as for example.) 181 (181W. 12 (1888). at least. must show the essential elements in the wrong. 11‟ Sims v. 12. 40 N. See article by Seavcy. The specific false representa tions of material facts. Freeman. where the Process or proceeding was irregular and void. but the specific facts constituting the fraud must be set forth in some detail. in his Declaration. 102. 2. Illinois: Cautweli v. 63 N. Florida: Watson v. N. 659. not only what the fraud was by which he has been injured. 102 Eng. 2 Parsons on Contracts. however. for all torts committed against her or her separate property.” concluded that the wife was entitled to vindicate her right in personam for a tort committed against her. and not Case. 76 A. that either Case or Trespass will lie if the Process was both malicious and unfounded. harding. and 5. 577. in an action in an Action of Trespass on the Case for Deceit. That the plaintiff suffered damages by such action. or a malicious attachment of goods. Minturn. 580 (1822). 55 N. Von Fell. 17 Ill. Speculations as to „Bespondeat Superior. when an injury is done to another maliciously. 13. J. if the Process was regular and the Court had jurisdiction. East 108. but also its connection with the alleged damage. 51. 297 (1870). Rep. English: Pasley v. 769.Rep.Jj‟. 10. It should appear that the damage is the result of the deceit. that the one might have resulted directly from the other. B. 600.” It appeared that the Common-Law impediment as to remedy had been removed by a statute permitting a married woman to maintain an action in her own name. a malicious prosecution of a criminal charge. so far as I have examined them. While it is not necessary to charge an intent to defraud. (N. 754 (18991. by the Process of a Court. S. so that it may appear judicially to the Court that the fraud and the damage sustain to each other the relation of cause and effect.‟s 525 (1906). 15. but incorrect view as to the origin of Case out of the Statute of Westminster II (1285). with reasonable certainty. Illinois 9. 296. 94 N.. 20 Cyc. “As the plaintiff van recover nothing in this action without proof of material fraud—that is. Vail.” Byard v.Y. New Jersey: Eibel v.E. I.L. 453 (Cambridge. 1 Cent.17 24. Page 209 of 736 . 17. 249 Ill. OFFENSIVE PLEADINGS THE Declaration. That Deceit the plaintiff acted thereon. t6. 34 N. in the same manner as if she were a feme sole. Pennsylvania: Lummis v. 79 N. 1934). 1063 (1910). 854.L. Holmes. and thus remedy the inequality to which she was subjected by the common law.J. in the Action of Trespass on the Case is the proper remedy. 241. after alluding to the earlier. it should appear that the representations were intended or calculated to influence the plaintiff to act upon them. 43 (1800). 243 (1807). That they were believed to be true by the plaintiff and were relied upon by him. 8cc. 678 (1899). such as has resulted in actual damage—and can recover for such loss only as be can show to be a direct consequeaee of that fraud (Seclgwick on Meas.12 In sustaining the wife‟s action.L. 450 (1789). 100 Eng. or.J. 771). 6 Johns. that a mere General Allegation that the matter stat- case of a malicious arrest. is. Of course. I Pa. 433.Y. and thereby alienating from her his affections. Jones. 488 (1911). 16 It is not sufficient to charge fraud generally.L. lb. without joining her husband therein. including the actual misrepresentations. Co. It is said.IT has long been the law that a husband could maintain an action f or the alienation of his wife‟s affections. the Malicious Prosecution „~ AT Common Law. it follows that the plaintiff must show. Michigaa: Pforzheimer v. “The result of the authorities. New York: Arthur v.J. 13 Edw.” Harvard Legal Essays. v Reedy. New York: Upton v. Stratton. even though the Court had jurisdiction.

The Bight to Recover for Malicious Alienation of a Child‟s Affections. 50 (1919). S L.Bev. Torts—Action for Malicious Prosecution—Failure of Information to State Facts Constituting Crime as Defense. 634. caused plaintiff to be arrested by his body and taken into custody and to be imprisoned and brought by public convey ance from county. Holmes. to . . ______ . caused and procured said United States commissioner as aforesaid. it must also appear that the accused was innocent.L.L.Rev. the Declaration In Malicious Prosecution. 22 Minn. although it is not necessary that it appear that it was sufficiently charged.Rev. to be dealt with according to the _______ . . and said defendant. Q. 4 St. sence of Arrest or Seizure. tHey. Hearn. and that the proceedings are at an end. 140 (1502). Plppet v. What has been said with reference to the first Count will be found to apply in all respects. _______ a United States commissioner for the district of 19. the said or some other United States commissioner. Louis L. 653 (1917— 18). 19_. 157 (1937). at the defendant went before one . and that the plaintiff was falsely and fraudulently deceived by It.llev.L.Rep. wrongfully and unjustly and without any reasonable cause whatsoever. to make and grant his certain warrant under his hand for the apprehending of plaintiff and for having plaintiff before him. Elliott.Rev. Harper. the crime charged must be stated. 19 Standard Proc.J. 15 Tex. . and without any reasonable and probable cause. 40 Harv. 665 (1928). 8 195 cution of the plaintiff by the defendant was brought in a court at the instance of the defendant. 675 (1027). & AId. substantially to the fourth Count also. Malicious Prosecution—Conviction and Reversal in Criminal Suits as Evidence of Probable Cause. either in Criminal or Civil Cases. Malicious Prosecution--Liability of Prosecuting Attorney. and it must appear that the charge was made falsely. 16 Mich. see Page 210 of 736 . charged plaintiff with having feloniously stolen or taken from out of a mail of the United States a certain registered letter received by plaintiff as post master at on or about the day of 19. for this. 711 (1927). Commeats: Malicious Prosecution—Civil Action—Ab. In general. as damage is the gist of the actiortt° The form of a Declaration for Malicious Prosecution is set out below: FORM OF DECLARATION IN TRESPASS ON THE CASE FOR MALICIOUS PROSECUTION TRESPASS ON THE CASE wit. L. 83—97. to wit.L. having been terminated in his favor. and upon such charge the defendant falsely and maliciously and without any reasonable or probable cause whatever.Rcv.In case for malicious prosecution. and then and there before said falsely and mali ciously and without any reasonable or probable cause whatsoever. Malice in Tort. . and. 299 (1870).L. under and by virtue of said warrant. Sec.” Byard v. afterwards. 1$. 34 N. at county. Malicious Prosecution—Juvenile Delinquency Proceedings as a Basis for an Action. Malicious prosecution. see: Articles: Ormsby. and the damages must also be alleged. to fasten upon such matter the character of a false pretence. 5 Barn. I think. 22 Minn. that on the day of 19__. Malice in the Law of Torts. 93 194 Ch. On law of said supposed offense. aforesaid. 740 (1938). 11 Minn. 106 Eng. and intended to be denied by the plaintiff. ______ . complains of who has been summoned to answer the said plaintiff of a plea of trespass on the case. 1322 (1822). is not suthcient. 12 Minn. False Imprisonment and Defamation. . to wit. and that this can he done in no other way than by a distinct and specific averment of the falsehood of each separate matter of fact stated by the defendant. Court of the County of to Term. the Declaration must show that the original proseed was a pretence.L. on the subject of Malicious Prosecutiers.Rev. to the second and third.Rev. 1060 (1938). maliciously. 296.

1833).S. The reason for this rule was that the Appellate Court could not tell whether the Lower Court had ruled correctly that the words spoken or written constituted libel or slander. as will appear from the form set out below: DECLARATION IN22 TEESTHE CASE FOR SLANDER IN THE CIRCUIT COURT OF COOK COUNTY To the October Term. at adjudged and determined that the said plaintiff was not guilty of the said supposed offense. Rolmen.” (IT) The Characteristics and Form of the Declaration in Slander. to the plaintiff‟s damage dollars. coming into English law through the Ecclesiastical or Church Courts. . it is no surprise to find that the Declaration in slander at Common Law consists of an elaborate and absurd jargon of recitals and explanations which obscure the real issues to be tried almost as effectually as if the pleadings were still drawn in Latin. first adopted in England by the Criminal Court of Appeal was in time assimilated by the Civil Courts.—Eecause the Common-Law Courts regarded libel and slander In declaring on Contracts or other Written Instruments the genus Common Law Rule is that the pleader must set out the Instrument sued upon verbatim. the libel or slander had to be set forth verbatirn. or according to their legal effect 1 Chltty. _______ . to wit. in cases involving Negotiable Instruments and In Libel and Slander cases. U. It has. to wit. ______ ENCYCLOPEDIA OF FORMS No. at falsely and maliciously and without any reasonable or probable cause whatsoever. of course. . at aforesaid. 229 (Springfield. which said commissioner. to wit. having heard and considered all that said defendant could say or allege against the plaintiff touching said supposed offense. and before a great many people in the public highway and the streets of and to be detained in custody a long space of time. as a matter of law. and hence passed on down to modern time. been modified. to wit. was inapplicable as to libel and slander cases. This was true because the idea of defamation originated in the Civil Law. 55. 719 (1898). 40 A.L. the original Common Law Rule being that in such eases the words bad to be set out the custody of a deputy marshal of the United States. A Treatise on PleadIng. or in the words in which they were made.—The requirements of Common-Law 21 strict and technical in regard to Declarations for Slander and Libel. It was therefore required that the very words complained of be set out “in order that the court may judge whether they constitute a ground of action and also because the defendant is entitled to know the precise charge against him and cannot shape his ease until he knows. that in declaring on contracts or other written instruments. caused the plaintiff to be carried in custody before said so being United States com missioner as aforesaid. Slander and Libel Pleading are (I) Strictness of Common-Law Pleading in Defamation Cases Explained. ZO. 19—.~° This rule. and the defendant hath not further prosecuted his said complaint. the General Common Law Rule that the pleadcr night set out the instrument or writing verbatim. and applied the rule of strict construction in pleading such actions. 13415 and No. It was for this reason. and hence the allawance of a remedy at Common Law for such actions invoked the rule of strict construction in pleading such causes. and the said complaint and prosecution is wholly ended and determined. To this General Rule there were two exceptions. and then and there caused the plaintiff to be discharged out of custody. without having the very words as used in the Criminal Indictment before it. to wit. hours then next foliowing and defendant afterwards. then and there. A. _______ . 62 N. Webster v. 1926 Page 211 of 736 . but bath deserted and abandoned the same.D. or according to its legal effect. OFFENSIVE PLEADINGS actions as an innovation. on the day last aforesaid. And therefore he brings his suit. fully acquitted and discharged of the said supposed offense. to be examined before said commissioner of and concerning said supposed crime. 6951.

Statement of Extrinsic Matter. 1926. 2!. fame contained a statement that prior to a certain Page 212 of 736 . but contriving. and he was. wherein the State of Illinois was the 2 CHrrTY on Pleading. tame and credit. on June 25. and until the committing of the grievance by the defendant as hereinafter mentioned. his attorney. who has been summoned to answer the plaintiff in a plea of trespass on the case for slander. and always has been a good. the plaintiff was always reputed. at Chicago. and which action had been (Ill) Essential Allegations in Slander and tried at the Circuit Court for the County of Cook. by William Jolmson. is. Attorney for plaintiff. the formal parts of which are five in number: (A) The Inducement. and other good and worthy citizens of the State to whom he was in any wise known. complains of Clarence flowell. 1833). to wit. Time.—‟ rtiis part of the Declaration wickedly and maliciously. The Declaration—General Rules as to Alleging Place.Wherefore the said plaintiff saifli Preliminary ~ION:he is injured and bath sustained Extrinsic damage to the amount of five thou‟ Facts: And whereas niso. and on such trial TRESPASS ON THE CASE Name: Good 197 LibeL—In the Declaration for slander or Ii- ness on behalf of the State of lilinois.COUNTY OF COOK. FORM OF PASS ON CAPTION OR TITLE: ~ourt~ Term: VENUE: COMMENCE MENT: Ch. ~ s SPATE OF ILLINOIS. defendant. 93 BODY: CONCLU.duce ‟certainty” in the charge. well know. to injure the said plaintiff in his name. and therefore lie brings grievance of the said defendant. and accepted by all his neighbors. to be a persos of good name. 620-4326 (Springfield. in the County of Cook as aforesaid. and has never been guilty of or suspected of being guilty of the crime of perjury or any other crime. true and faithful clti2en of the State. Gravamcn. both as to Form and Substance. and the Ing the premises. before the said sand dollars. For that whereas. 8 196 Plaintiff‟s Sec. are considered In Chapter 5. 1925. certain action had been pending beWILLrAM JoHNsoN fore a certain justice of the peace. In the County of Cook. plaintiff and one Fred Jones was the defendant. on the 16th day of January. the Preliminary Yet the said defendant. bel elaborate averments are required to pro-and had given his 4 evidence as a wit. title and Other Common Matters. and Chap ter & The Dee)aration—Generaj Rules as to Manncr of Pleading. BODY: INDUCEMENT. The principles of General Application as to Declaration and subsequent pleadings. Arthur Brown. GEAVAMEN: the plaintiff was examined on oath. a his suit. esteemed.

Divivier v. and 198 neighbors. of and concerning the said plaintiff.) 412 (1581). in Worth v. 529 (1900). wickedly.C. S Milligan v. Thus. In innuendo could refer. in the evidence (B) The (Jolloquium. “He” (meaning the plaintiff) “took a libel that others than the plaintiff should be false oath.C. 43 C. and to bring him into day maliciously compose.A. 7 Blackf. and if the words utwith and amongst all his neighbors tered were not actionable in themselves. the declaration must allege publication of the slanderous or libelous matter. 204 Ala. Where the words uttered 25.should plaintiff sufficient. 6 ~6. Without this nothing was expressed to which the (C) The Publication of the Scandal Itself.L. French. 17 R. Choctaw Coal & Mining Co. of fornication. But if the words are prima facie actionable. for example.—Anot her technical given as a witness at the trial aforerequirement of a Declaration in Slander was understand himself to be referred to thin false. because it does not necessarily impute the offense of perjury. and of and concerning the said evidence The and credit. Butler.‟ this not being of itself actionable. cer. 23 defendant had with the said plaintiff. Thorn. OFFENSIVE PLEADINGS Wend. that the said. infamy and disgrace among his neighbors. and causc it to be suspected and be. for 25. that a conversation was had of and concerning him. and established a of the State that plaintiff had been basis for showing damage to the plaintiff. clearly apply to the plaintiff. no colloqulurn or setting is necessary in the Declaration. 104 Fed. (Intl. in which the defendant charged the plaintiff. It is INNUENDO: Thereby meaning and intending that the plaintiff. did falsely.set forth the preliminary extrinsic facts to lieved by those neighbors and citizens which the slander applied. concerning the said action. the Colloquium. v. and to his reputation in the eyes of others. averment of extrinsic facts was necessary. The plaintiff therefore was required to include a colloquium. LulIch. that is to say. it and other good citizens of the State. had sworn falsely and had been guilty of the crime known as perjury. but he was not named in the slanderous words. COLLOQUIUM: the plaintiff had enjoyed a good name public scandal. brought Into public scandal. it must be Page 213 of 736 .Y. and that can only arise where the words uttered or written are published to third persons. 383. It is necessary to constitute defamatory words. therefore. 533. but damage aforesaid. “Thus. 1920. 278. which was an averment that the defendant was speaking of and concernthe plaintiff. (N. 358.) 251 (1844). not gravarnen of an action for libel is not given by the plaintiff on the trial injury to the plaintiff‟s feelings. scandalous. in the presence and unmarried woman. as. which was hearing of divers persons.guilty of the crime of perjury. infamy and disgrace with and amongst his 24.25 the plaintiff complained that he had been slandered. 394. &c. 11 ALa. DAMAGES: And by means of the said premisesing the said plaintiff is greatly Injured In his credit and reputation. 56 South. when the plaintiff stated that he was intended. Where Defamatory language Is of a clear import and on its face applies to the plaintiff. an the County of Cook. of and concerning the plaintiff. in on the 16th day of January.” in a position to understand that the plaintiff is the person referred to24 in the presence of divers persons. and In a certain discourse which the no of and a felony. if the imputation be that the plaintiff was „foresworn. a colloquium is not necessary. —As the basis of actions for libel and slander is damages for the injury to the character of the plaintiff in the opinion of others.2° Ch. malicious and in the article. speak and publish.

” Thus. a Demurrer was sustained. I).3° in his I-TaIl (N. MacLaughlin v. 191 Pac. Cases on Common Law Pleading. that the plaintiff was an „ton cut lawyer. to explain the defendant‟s meaning by reference to previous matter.” but the Court held that the Declaration was inadequate in that the words were not in themselves actionable. there were other requirements. if the Declaration be.Y.R. 663.Rep. he brings his suit. See also.‟ After a verdict for the plaintiff.” would have required more explanation. 126.example.) 103 (1829). 37 (1869). and it Is for the defendant to plead its truth If he can. also. the relationship between the various persons mentioned. 116.E. 688. 1 AnnCas. wrote and delivered to the plaintiff a certain libel. “lie has no more Judgment in the Law than Mastcr Cheyny‟s bull. „As sure as Page 214 of 736 . that there had been a Judicial Proceeding. and require an “innuendo which is necessary. Triggs sc Sun Printing and Publishing Association. C.Eliz. 136 Ill. ‟ where the declaration averred that the defendant composed. Fisher. 502. Thus. 144.) 377 (1845).” the charge of crime appears. ned. etc.‟ But the climax was reached in a case cited in Dacy v. Sydnam‟s had in fact been kille&31 Had the words been „ and thou art‟. Newell. too. and that the defendant when speaking the words. 28 In Roella v. as the averment failed t0 show a publication of the libel. states: “So. 1900). ironically made. 29. on error brought.tSupp.E. 186. 53.” although it was urged that the Dcc‟ laration was defective In not alleging that Mr. 2 Keble. the 199 court would subsequently arrest judgment on the ground that it did not appear clearly on the face of the record that the words were actionable. but an innuendo cannot enlarge the meaning shown by the inducement in which the surrounding conditions are set forth. 295 (WashIngton. Holman. and all the surrounding circumstances necessary to fully understand the defendant‟s words. addressed and directed to the plaintiff. Browning (1625) Cro. 24 N. 486 (1904). in such cases.‟ So in Foster v. „because it was not averred there was any robbery committed within forty miles.Y. if they were not. because there was no averment that any man of Mr. Precedents of PleadIng. (md. where the defendant had said to the plaintiff. „Thou art as arrant a thief as any is in England. Clinch (1661) 1 Sid. and its object was to explain the defendant‟s meaning by reference to the previous statements in the inducement and colloquium. for otherwise it is no slander. Sydnam‟s man. 60 Erettun v. 186. specifically alleged. Roane (1598) Cro. 103 Mass. And this technicality was carried to an absurd extent. 88 N. See. in Ball v. famous Innuendoes ate not sufficient to supply the lack of Inducement and Colloquium or ettend the meaning of words beyond their natural import or sense. See Keigwlu. arrested judgment. 97 Or. Chicago.St. Anthony.” I Chitty. 111. 733 (4th ed. there need be no averment as to circumstances. c.‟ the plaintiff would probably have been allowed to recover. Again. instead of „ for thou art.—This part of the Declaration followed the colloquium. 93 TRESPASS ON TIlE CASE and Slander. non allocatur. 326 (1904). in Waistel v. 1928). 137 (5th ed. where the words were. 84 Eng. 179 N.‟ and Intended to Impute that the plaintiff bad been guilty of the crime of perjury. “Where the libelous matter can be collected from the words themselves.& 612. VII.R. 2 (D) The Innuendo. Pleading. Whittier. 137 Note: Emmett v. A charge.‟ the court arrested judgment „because the plaintiff had not averred that there was any thief in England.Jac. V. 71 N. A Declaration was sustained by the King‟s Beuch in 1661 as against a Motion in Arrest of Judgment which chnrged the defendant with saying of plaintiff. where the defendant said. Odgers. many other allegations were required describing the locality. 415. Clii‟ 3°. Cheyny bad a bull. referred to such matter in using tho term „foresworn. 259. 103 . 739.‟ the court of Exchequer Chamber. the words were: „There was never a robbery committed within forty miles of Wellingborough but thou hadst thy part in it. See. in which the plaintiff was a witness and gave evidence. 7 Blaekf.Am. And these matters could not properly be proved at the trial unless they were set out on the record.. the court arrested judgment. „Thou art a murderer. and the plaintiff had a verdict. 202. Slander and Libel. C. “lie perjured himself. 841.29 the colloquium stated that “He” (meaning the plaintiff) “took a false oath. Baker v Morphew.” (E) The Consequent Dantage&—This was merely a conclusion of the plaintiff that he had sustained damages to a certain amount. by way of Inducement. 66 L. work on Libel 27’ 2 2L Over and above these technical parts of the Declaration. Phelps. 285. an attorney. reversing 91 AppDiv. sending a sealed letter to the plaintiff was not a publication. 308. and therefore. for thou art the fellow that dklst kill Mr. 11 AL. 242. Follow.Rep.

~~ The purpose of the above provision. 1928).33 32. 202 (1876). It is necessary to constitute libel that others than the plaintiff should he in a position to understand that the plaintiff Is the person referred to. 104 Fed. the plaintiff shall be at liberty to aver that the words or matter cornplainedof were used in a defamatory sense. S wend. Ch. with the rcsult that the plaintiff was Nonsuited. or Icing James this kingdom. as a matter of law.God governs the world.) 394 (1829). C. 331.App. that the plaintIff should understand himself to be referred to in the article. This tendency OFFENSIVE PLEADINGS first took on substantial form in England when the Common Law Procedure Act of 1852 provided: ~ “In Actions of libel and slander. § 61.‟ After verdict for the plaintiff. e. or in haec verba. without showing..J. 3. but were set forth in the Declaration in the English language. with or without the alleged meaning. But here the Court drew the line.” This section was adopted into the New Jersey statutes in 1855. 35 “The effect of this 37 change.Eep. Wallace „cc Dixon. 76. Kcigwin. show a cause of action. 472. this was due to the civil law origin of libel and slander. 33. and the plaintiff by innuendo puts a construction upon them different from what they would mean without the innuendo 34. as to this class of cases. was also entitled to know the precise charge against him. by means of a colloquium. and to the fact that the criminal and Appellate Courts.—At Common Law. 55. 02 Statutes at Large 208 (1852). 31. 40 A. Page 215 of 736 . but damage to his reputation in the eyes of others. also. Cramer. Webster „cc flolmes. the general rule was that in suing on written instruments. Oppenheimer.Jac. 278. i. you are a thief.” Duvivier v. I). or other explanatory matter. 285 ~Washlngton.. where the words uttered were in the German language. (N.Y. in Allen v. “in the law of pleading. As we have stated earlier. of course. 79 Eng. the defendant moved in arrest of judgment. the Declaration shall be sufficient. and where the words or matter set forth. on review.C. 778 (18985. therefore. 43 C. 201 ill. by innuendo or specified defamatory sense. Schultz „cc Short. 74 (19Th). on cago. 82 N. Ball. 82 Dl. But in libel and slander cases the words had to be 32 alleged verbatim. the contract could be set out verbatim or according to its legal effect. As setting forth a writing verbatim often resulted in a motion for nonsuit on the ground of variance between allegation and proof. any construction he may see fit to attribute to them. specifying such defamatory sense without any prefatory averment to show how such words or matter were used in that sense. The defendant. how the words contained a defamatory charge. and such averment shall be put in issue by the denial of the alleged libel or slander. and held that „these things were so apparent‟ that neither of them need be averred. 200 “The gravamen of an action for libel is not injury to the plaintiffs feelings. The Defamatory Words Themselves Must be Set Out Verbcttim. e. and to place upon those words. Precedents in Pleading. could not determine whether the lower courts had properly determined whether the words uttered or written. 1724). as expounded by the courts of England and New Jersey. is that if the words complained of are actionable per se. or King James this kingdom.” 25 Cyc.L.” (F) v. was to afford the plaintiff the right to set out in his Declaration the words complained of. Wormouth V. were slanderous or libelous. 8 (G) The Technical Common-Law kules of Pleading in Libel and Slander Modified. It Is not sufficient. 15 and 10 Wet. 282.— Under modern practice the technicalities governing pleading in libel and slander eases have been largely abandoned.A. But a slight variance Is not fatal. both of which were regarded as innovations upon the Common Law. usually the writing was set out according to its legal effect. 529 (1900). “You are a lIar” is supported by proof that “You are a damned liar. See. French. Cro. Proof of similar or equivalent words is not admissible.” according to Lanning. Earrons the ground that there was no averment on the record that God did govern the world.

1406 (1S4~ Billings v. or if it prescribes a new remedy to enforce a Common-Law right. 25 (1877). Gates v.Dec..R. 451. The peculiar office of these separate divisions of the Pleading was distinctly circumscribed. or enacts that he shall recover a penalty or damages for such injury.. 802 (1921).Rep. & . and the other without it. 1909). 396. Rep. Act 3t English: of March 17. in Castineau „cc Mccoy. Dee. 113 Eng.46 42. 733 (1878).35. if a Pleading contains the necessary Allegations. 826(00. causing him to lose his right to votc. 38 N. 34 Am. History and Theory of the Law of Defamation. and in view of the last clause of the section the conclusion seems to be sound. Dunks. 2 Cromp. 45 But where a statute gives a new right. Salmon. (N. 381. the statutory remedy must be pursued. & El.L. Rep. it will be sufficient although not contained In that particular division where the Rules of the Common-Law required it to be. one with the innuendo. when necessary. later § 106 New Jersey Practice Act (P1. 2 Salk. so that now. 11 I~lctc. 227 SW. President & College of Physicians London v. 318 (1863). but in more Modern Tunes. 391. Page 216 of 736 . Rev. Wintle „cc Freeman. 37 Mich. 295.) 224. and prescribes a particular remedy.) 330 (1846). Vermont: Abbott v. Sec. Sabourin v.44 And if a statute gives a remedy in the affirmative. Id. Lafferty. generally. & lii. Neal. 100 Ky. (Mass. whereby the plaintiff has sustained an injury (though an action ex contractu on his bond may be a concurrent remedy). 158 (1832). 9 Bing. for a matter which was actionable in Case at Common Law. Griffin v. such as New York. 16 31. 463. Davis. Marshall. 440. Humphrey. against an officer for any neglect of duty.” Thomas. 821 (1884) Massachusetts: Spear v. 3 CoIL. Rising. 465. 520 (1841). what was known as an „Inducement‟. (lasson. 413. 149 Eng.‟ the „Colloquium‟. 110 lJng. 568). TRESPASS ON THE CASE refusal to allow a vote. (Mass. see Veeder. 131 Eng. as. and an „Innuendo‟. express or implied. In general.) 834 (1858).) 308 (1840). when the Technical Rules of Common-Law Pleading have been superseded by the enactment of Codes of Practice. Jacobs v. 40. 166 Fed. a „Colloquium‟. English: 44. 23 Pick.” ~ And in some states. 741. 1 Gale & B. Hemmings v. or the „Innuendo‟. 43 N. 3 Barn.J.Itep. Aireton v. and is silent as to the form of remedy. (1881). 39 Mich. 42 and. Or against taxing officer for maliciously failing to tax a person. 43. or creates a new liability. whether they be found in that part of it appropriately styled the „Inducement. in an action for slander brought by a woman imputing unchastity to her. the count containing them should be read as two counts. 4 Sur.L. J. Andrew v. 31 Ill. or for not returning it. 19 Vt. Keith „cc Howard. 53 (1839). or for taking an insufficient bond. 3 Q. for not Levying an Execution. (Mass. 91 Eng.. Cummings. 23 Pick. an Action on the Case (and in some cases other actions) will lie. it is not necessary to allege or prove special damages.) 292 (1841). 1855 p. 792 (1833). 551. 4° and it will lie against an officer for making a False Return.S. New Jersey: Rand „cc Whiten.Adol. 24 Pick. without a negative. 113 Eng. (Mass. 801. 122 (1875). 539. contained. Deshler. Friend v. 93 4*. L. or for not taking a Replevin Bond. 41 or against an election officer for 33- CASE is a proper remedy against an officer “At Common Law the pleading of a plaintiff in a slander suit. 11 Adol. and expressly or impliedly excludes the Common Law remedy.3° Neglect of Official Duty for failure to perform his duty. 708 (1847).N.L. 546 (1903).~. Mason „cc Paynter. 39.Rep. § 26. the extreme Common-Law Technical Rules with respect to Pleadings in Libel and Slander Cases have been largely modified. D.B. 43 Statutory Liability 201 WHENEVER a Statute prohibits an injury to an individual.Rep.1903. etc. on LIbel and Slander. 47 Am.. Such was the conelusion reached in Watkin v.J. Kimball. Hall. the party may still sue at Common Law.

H.) 404 (1824).) 40. observing ordinary care for his personal safety. Wisconsin: Babb v. and assumption of risk. the remedy is in Case. and should allege that such injury was committed with force and arms and against the peace. Martin.) 38 (1827). White Deer Pp.) 103 (1853).H. 26 N. 13 Johns. liiinois: Stumps v. 24 Miss. 202 Common-Law Pleading: Its History and Principles of Forms of Action. IN some Jurisdictions it is necessary in a Declaration for negligence by a servant against the employer to negative the defenses of contributory negligence. 398 (1857). and prescribes the i-emedy by which the owner shall obtain redress. Mississippi: Thornasson v. Corp. 5 Greenl. (N. 43. 371 (1860). (N. 1 Ld. Pennsylvania: Weller v. Blackbnrn. 169 (1844). New Jersey: City of Camden v. Perry. and mischief immediately ensues to the person or property of another. 447 (1868). or to the personal or real property.. Thus. 27 Pa. 12 Mass. 724. if a wild or vicious beast is turned loose. (Me. Proprietors of Middlesex Canal. ~. In some Jurisdictions the plaintiff must negative the possible existence of certain technical defenses. the declaration cannot be amended to supply this “substantial fact. In Caluinet Iron and Steel Company v. Sarch V. New Hampshire: Adams cc Richardson. 23 Pick. Cas. English: Mason „c Keeling.4~ But if a vicious animal is kept with knowledge of its dangerous propensities. 13 Johns.) 301 (1855). it should contain a concise statement as to the injury complained of. the injury is immediate. and Trespass 1 not Case is the remedy.Bep. 12 Mod. 333. OFFENSIVE PLEADINGS ANTICIPATING DEFENSES IN CASE 94. New 175 (1809). Bobbins. 725 (1803). Bray. Hampshire: Henniker v. 212 (1861). v. Buxendin V.5‟ the general rule is declared to be that.Y. Mackey.) 339 (1810). (N. 006. 564 (1690). McArthur. where a Statute authorizes the taking or injuring or private property for a public use. 384 (1828). New York: Scidmore v. under the Liability for Injuries by Animals AT Common Law. Co. Baym.Rep. English: 30.Bep. 102 Eng. 466 (1815) . New Jersey: Coxe v. and a person is thereby injured. Barnett.) 36 (1840).Y.H. III. Proprietors of Frychurg Canal Co. Stevens v. contributory negligence.53 It has been held that negativing knowledge of the risk is insufficient as it does not appear but that the servant had easy means of Page 217 of 736 . Leame v. fellow-servant rule. & P. 140 (1859). I-Macn v.” 52 In an Action of Trespass on the Case by a servant against his employer a Declaration was defective in Ch. Case or Trespass will lie. 12 Cush. viz. Proprietors of Middlesex Canal. fellow-servant rule. Agnew. 662 91 Eng. (Pa. 47. however.) 350 (1861). Moore. 7 Ala. Massachusetts: Mellen v. it must be alleged and proved that the plaintiff was. 2 Greenl.44. 297. 10 WIs. Essex Co. 93 (1852). Frye. 29 N. Weyand. 43 N. damage is done by a domestic animal. 1305 (1699). 712 (1830). 109 (1856). After the period of the statute of limitations. New York: Vrooman v.. Thompson v. at the time he was injured.J. 3 East 593. 2 Grant. 2 Salk. Michigan: Detroit Post Co. whether to the person. the owner is not liable to action on the 49 ground of negligence. Alabama: Durden v.J. If the action for injury by an animal is in Trespass. (Me. Maine: Bearcamp River Co.5° right of eminent domain. Almy „cc Harris. Kelley. 16 Mich. that remedy must be pursued. (Mass. Brown V. Proprietors of Sudbury Meadows v. 49. 5 Johns. 22 Ill. 43 Where. Woodman. without proof that he knew that the animal was accustomed to do mischief. But if the damage done is not incident to the exercise of tbc power given. B. Contoocook val. and assumption of risk. Rep.. 4 Gray (Mass..Y. 173 Eng.) 322 (1816). 5 Johns. 2 Allen (Mass.S Illinois and some other states which did not negative knowledge or assumption of risk.) 175 (1809).L.) 475 (1853). 1801). but is due to an improper exercise of the power. 91 Eng. Allen. 4 Car. 146 (1854). v. 73 (Boston. 590. (Mass. kept for use or convenience.L. (N. in order to recover for injuries from negligence. Western B. v. Lawyer. Sharp. New York: Almy „cc Harris. Of Forms of ActIon. 9 N.Y. Smith.

As we have seen it was largely through the con stant and ever increasing application of this action to a myriad of different factual situations involving a wrong not remediable by any other Form of Action which enabled the Judges of England to build up the Common Law of that country as it is known today. 190 III. 358. assumption of risk. they should be set up affirmatively by the defendant. Chicago & B. Co. 225 Ill. 243. 94 N. the plaintiff is ordinarily only required to make out a prima facie case and need not refer to all the conditions. B.E. Builders‟ Iron Foundry. 130. that if the allegations indicate 51. 27 Atl. 661 (1894). McNeill & Libby v. 56 The defenses of contributory negligence. 328.App. 383 (1904). Page 218 of 736 . 519 (1911) Richter v. 540. 389. in Illinois the burden of proof to negative assumption of risk was on the plaintiff. V. 273 Ill.Rep. 74.. 840. Ry. It is held. The Action of Trespass on the Case was adapted to many circumstances and factual situations which characterized the growth of society. 96 TRESPASS ON TUE CASE TIlE EXPANSIONISTIC CHARACTER OF CASE 203 95. Gaylord. 52. however. v. 57 AtI. Seherman. 05 (1907). 651 (1909). (1901). Walters ~‘ that the plaintiff was not a fellow servant. 115 III. 191 (1893). Melnerney v.E. Rhode Island: DiMarcho v. Bhode Island Co.5‟ In an action by a servant against his employer to recover for a personal injury for negligence. Swift Co. it might seem that logically he should be required to set up and prove all the conditions essential to recovery. 37 Am. This will.E. Co. 141 Ill. B. the declaration must negative the defense of the fellow-servant rule. Matters of justification and excuse are for the defendant to prove. B...E. 72 (1901). 229 111. and fellow-servant rule are technical at best and should not be favored by the rules of pleading. II. and that he should negative all possible defenses.L 514.. Western Packing & Provision Co. B. hence the particular applications of the action above discussed are merely illustrative of its enormous scope.knowing. assumption of risk. 113 N. 88 N. which is a question of fairness. 18 R. 25 RI. if it is alleged that the negligent acts were done by the servants of the defendant without showing to what class they belonged. IT Is impossible to enumerate all the factual situations in which an Action of Trespass on the Case can be maintained. however. 266. Dalton v. 249 IlL 240. which are ultimately essential to a recovery. B. It is referred to as the Great Residuary Remedy of the Common Law for the reason that the law has never placed a limitation on its continual expansion. 456 (1885). 344 (1900). 28 AU. 146 III. The plaintiff must show an apparent reason for his request and give fair notice of the facts relied on as the basis of his claim. Aurora. indicate as to what matters the plaintiff has the burden of proof. 60 N. City of Ottawa. 80 N. Co. 34 N. v. and fellow-servant rule. since it is unfair to require the plaintiff to disprove the existence of each and all of them. and the ability of the law to meet the demands of a constantly advancing civilization largely has been made possible by the expansionistic character of this actzon.. 3 N. What the plaintiff must allege as a matter of pleading to state a cause of action is a more or less arbitrary matter.St. in general. 240 Ill.E. 153 (1016). If they are to be raised at all. 574. 259. 81. 82 N. Since the plaintiff comes into court asking relief. In fact. Smith. no negative allegation is needed. 55.Gould v. 299 Sec. & C. Sehillinger Bros.55 City of LaSalle „cc Kostka. 801. 625. policy and convenience. Illinois: Libby. such as contributory negligence. positive and negative. 56.

the ability of our law to meet the demands of our constantly advancing civilization largely has been made possible by the expansionistic character of this action.~~ In the first case. 11OF(2d) 15 (3rd Cira939). Fifoot.. S Page 219 of 736 . And. The complaint having been dismissed by the District Court.C. no Action of Repleviri. however. thus raising a question as to whether the plaintiff‟s action was barred under the applicable Delaware Statute of Limitations. has been removed.~~ it was often suggested that a liberal construction of that Statute would have eliminated any need for the Chancellor‟s extraordinary jurisdiction in filling out the alleged deficiencies of the Common Law. This suggestion was predicated upon the view that Equity originated out of the failure of the Common Law Courts to adapt themselves to the changes and needs of a developing society. on the ground that it did not state a cause of action which accrued within a period of three years prior to the Commencement of the Action. 28 M. in this connection. 15 Supra. Practice Acts and Rules of Court. OFFENSIVE PLEADINGS where the effect would be to substantially lessen competition. It was stipulated that the right of action accrued not later than January 1. 58. no Action of Assumpsit.Before modern research revealed that Case did not originate out of the Statute of Westminster 11 (1285). Bisener W. Maxwell. no Action of Debt not found upon a Record or Specialty. Williamson v. 59. Indeed. that the view that Equity originated out of a failure of the Common Law Courts to so adapt themselves is wholly untenable and contrary to fact. no Action of Account. under which the Single Action provided is in the Nature of an Action on the Case. one decided in l939.S. ~ 18. however.6‟ the section which barred corporations from acquiring. Williamson v. Columbia Gas d Electric Cor‟ poration.Rep. event have afforded the kind of relief which Equity was eventually to offer without completely revolutionizing their procedures and enlarging their jurisdiction.~ the other in 1951. as has been observed. The Development of Actions on the Case. § 18. although the label. for. is that the Action of Trespass on the Case revealed such great potentialities as to permit its adaptability to the many circumstances and factual situations which have characterized the growth of our society.°2 The defendant moved to dismiss the complaint. any stock of another corporation engaged 6 in commerce. Columbia Gas & Electric Corp. as such. directly or indirectly. 66— 78 (London.P. The Common Law Action of Trespass on the Case continues to exist under modern Codes.A.°3 Section 5129 of which provided: “No Action of Trespass. 15 IJ. Iv.C. 81. 213 (1951). note 58. the Common Law Courts could in no WI. What is true. 1940). no Action of Detinue. 204 U. PRACTICE ACTS AND RULES OF COURT 96. the plaintiff appealed.. TI-fE Modem Status of the Action of Trespass on the Case appears plainly from two cases.8. the plaintiff also claimed threefold damages under Section 4 of the Clayton Act. ~istory and Sources of the Common Law. 1931. v. e. STATUS UNDER MODERN CODES. It is submitted. ° in which the plaintiff complained that the acts of The Columbia Gas & Electric Corporation were in violation of Section 7 of the Clayton Act. and no Action upon the Case shall be brought after the expiration of three years from the Ch. and hence the process of expansion and growth continues at full pace. it should be remembered that the capacity of this action has not been destroyed by the Reformed Procedure.

and.” 62. Thus. and. It clearly appears that the Common Law Action of Trespass on the Case is very much alive under Modern Codes. which reads in terms of Common Law Actions. Limitations which prescribed a six year period of limitations.S. Revised 04. was barred by the Statute of Limitations. TRESPASS ON THE CASE Trespass on the Case. the plaintiff‟s Statement of Claim alleged Damages caused by the negligent operation of a motor vehicle on a highway. The defendant argued that the complaint set forth a cause in tort for which an Action on the Case was the only remedy and that since the suit was brought more than three years after the action had accrued. was not barred. U.S. 15 In the second case.accruing of the cause of such action. The Lower Court held for the defendant. § 15. to which the defendant plead ed that there had been no negligence. Property Which May be Converted. Thus. Maxwell. decided in 1951. and since it was brought after the expiration of one year. 213 (1051). CHAPTER 9 Sec. 15. would be enforceable in an Action on the Case and not in an Action of Debt on a Specialty. from the standpoint of a Federal case. or whether an action in the Nature of the Common Law Action of Trespass on the Case was the sole remedy of the aggrieved party. Ei. what is more significant. The District Court. It is evident that the complaint in the case before us discloses a Cause of Action which. and for causes which formerly would have been brought in the Form of Action Known as Trespass on the Case.C. is showing sufficient strength to create new substantive rights of action. the Circuit Court of Appeals held that the action sounded in tort and that the appropriate Form of Action was the Common Law Action of Trespass on the Case. and Rules of Court. Chief Justice Mans declared: “In order to apply a statute of limitations. under the Common Law of Delaware. but on Appeal. 96 205 Page 220 of 736 . THE ACTION OF TROVER‟ Scope of the Action. decided in 1939. 28 !„Ll‟. or a Canadian case. as such. it is necessary for the court through a consideration of the nature of the Cause of Action disclosed in the complaint to determine the Form of Action which would have been brought upon it at Common Law.” a Canadian case decided in 1951. even though the label.” In this situation the plaintiff concluded his action was in the nature of an Action of Debt on a Specialty and hence was not barred. The plaintiff contended that automobile collisions on the highway should be treated as Actions of Negligence. and hence should be regarded as within the class which formerly would have been brought in the Form of Action called 03. Trover—Distinguished from and Concurrent Form of the Declaration in Trover. 15 U. as it fell within the purview of that Section of the Statute of Code of Delaware (1935). the period prescribed by the v. As such.C.ttep. to a Civil Action brought in a District Court. it fell within the class which formerly would have been brought in the Form of Action Known as Trespass on the Case. At the Trial the defendant urged that an action for personal injury was an Action I or Assault and Battery. recovery was barred by the Statute. it was held that automobile collisions on the highway should be treated as giving rise to a new right of action to be known as an Action of Negligence. six years. Practice Acts. therefore. has been removed. In affirming the Order of the District Court. properly held that the action was barred by the Delaware Statute of Limitations. and hence the six year Statute of Limitations applied. therefore. such as that of Delaware. The Statute of Limitations for batteries was one year. in the Appeal. the issue of law was whether an Action in the Nature of Debt on a Specialty at Common Law might be brought to recover Damages for injuries to business resulting from acts prohibited by Section 7 of the Clayton Act. having been brought within twenty years.A.

on the history and development of the Action of Trover. SCOPE OF ThE ACTION IN its origin. II. A Concise History of the Common Law. The Study of Law. History anti Sources of the Common Law.Rev.Declaration in Trover—Essential Allegations: (2) The Plaintifi”s Eight. 417. or Trover and Conversion. the object of the action is the recovery of the „value of the property as Damages for its conversion. Trover and Conversion. e. Practice Acts and Rules of Court. 664.Q.liev. c. was a Specialized Form of the Action of Trespass on the Case to re I. St. the Action of Trover.L. MeClain. Trover. 102 (London 1949). 1 (1927). 11ev. The Defendant‟s Wrongful Act of Conversion. e. it is not the object of the action to recover Damages for the taking. c. In general. Clark. c. C. 57 Am. 104. 98. History of Trover. Short History of English Law. Handbook of Common-Law Pleading. Bowers. Barbour. Paul 1923). 408 (11907). XIII. Observations on Trover and Conversion. nor is it the recovery of the property itself. lies to recover Damages for the conversion by the defendant to his own use of specific personal property. Martin. History of Contract in Early English Eouity. Rights of Finders. Plueknctt. 132—135 (Boston 1913). 95—113 (3d ed.01. 303 (1881).L. Qualifying as Plaintiff in an Action of Con- See. pp. 211 Mieh. 2 Saunders. Bights of Finders of Lost Property. 71—72 (Cambridge 1948). I. 277. e. 10 Ky. XIV. Philadelphia 1831). Pt. V. 25 (Orford 1914). 374 (1598) reprinted in 3 Essays on Anglo-American Legal History. 105. 511 (1923). 0.Status Under Modern Codes. Euer. Morgan. 159 (Northport.Bev. ed. see: cover Damages against a person who had found goods. Pt.L.L. Interest or Possession. Warren. Lecture VU. Forms of Action. 21 L. of which the plain tiff was entitled to the immediate possession. The Test of ConversIon. History of English Law. V. IV. Oxford Studies in Social and Legal History. 490 (1930).L. II (Osford 1914). 15 Am. of Pa.Rev.Declaration in Trover—Essential Allegations: (1) In General. 151. Trover. Chicago 1045).L. 100. 432 (Boston 1909). e. 9. II. ~ 7. Commentaries on the Laws of England. 1906). Civil Procedure at Common Law. The Forms of Action at Common Law. Ames. Action of Trover. 102. Bic. by Ballantine. c. ~ 97-404. II.Ilev. but converted them to his own TreatIses: 3 )3lackstone. 97. 97. Salmond. The Law of Pleading and Evidence. Foundations of Legal Liability. 354 (4th ed London 1048). 11 Barr. Maitland. 21 Harv. c. XXI. 98 207 use. Flfoot. 85—92 (St. 1. c. Troror.. in Trover—Essential Allegations: (4) The Damages. A System of Pleading.Declaration 103. in 4 vinogradoff. Bk. Shipman. Detinue. Ames. or Trover and Conversion. 206 ACTION OF TROVER Sec. Paul 1905).Rev. Conversion by Purchase. 152 (Philadelphia 1772). X. Moreland. Articles: Newmark. SO (CambrIdge 1913). with Other Actions. VI. A Treatise on the Law of Conversion (Boston 1917). Aigler. 399—402 (24 Am. and refused to deliver them to the owner. The Action of Trover. 43 (1905). 78 13. 08-71 (Dublin 1791).J. Title. The Action of Detinue. 2 Pollock and Maitland. Lectures on Legal History. e. L.Declaration in Trover—Essential Allegations: (3) The Action of Trover. 99. I. e. 1. Unaatis5ed Judgments in Trover. XV. 3 Street. 171—174 (Cambridge 1805).2 As Detinue was subject to the disacivantages of Wager of Law and great particularity in the description of Page 221 of 736 . Jenks. 11 (24 ed. Art.

H. or refused to deliver it when demanded. Conversion—Bailee‟s Unauthorized Use of a Bailed Chattel. c.. or of One in Similar Relation to Owner.R.” ~ It is thus a substitute for a property action to recover the possession~ in short it makes the converter a compulsory purchaser.) 265 (1830). I B. which is the gist of the action. said: “Trover is in Form a Tort. . however.Rep.the chattel sought to be recovered. 164 (Northport 1906). Soutbwortb. Lord Mansfield. . 1130 at 1137 (1116). by alleging a fictitious loss and finding—at length was allowed against any person who obtained possession of the personal property of another by any means whatever. including legal documents. & P. IX. See the following cases: Illinois: Harper v. Mills is founded on property. The action was therefore called “Trover” from the French „trouver”—meaning to find. It lies for the misappropriation of specific money. Best. 3 Street. Trover. THE Action of Trover is confined to the conversion of personal property. The Form of the Action supposes that the possession may have been obtained lawfully.App.Rep.6 PROPERTY WHICH MAY BE CONVERTED 98. 98 Eng. The object of the action is not the recovery of the property itself—that can be recovered only by Detinue or Replevin—but to recover the value of the property. Comments: Trover and Beplevin—Title to Things Severed from Real Estate by Adverse Possession. Foundations of Legal Liability. and sold or used it without the consent of the owner. ed. v. 9 L.) 140. 5 Wend. Treatise on Pleading and Parties to Actions. Trott. 1105 (1939). Dame. 3 Blaekstone. 112 (1935).Rev.R.LEev. Of the Forms of Action. in Trover the injured party is compensated by Damages measured by the entire value of the property involved at the time of the conversion. they are recoverable only for the wrongful act of conversion. 413 (1804). 164. The Action of Trover. 1084 (1936). . but not for the breach of an obligation to pay where there is no duty to return specific money. Street. e~ XIII. by Perkins. Of the Forms of ActIon. 155 (1920). 43 N. 3 Cowp. 742 (1921). 415 (1941).5 In Trespass the plaintiff is compensated by Damages measured by the actual harm done to the goods or chattels or the use lost. by a bailment or a finding. c. Commentaries on the Laws of England. with Precedents and Forms. Foundations of Legal LIability. the plaintiff. ed. An Action of Trover . 1 Chitty. 152 (7th ed. at least until after tIre land has been recovered. Conversion of Choses in ActIon. 104 (16th Am. but in Substance an Action to Try Property. I Chitty.Apr. 156. New York: Hull v. Trover may be maintained for all kinds of personal property.Y. for the appropriation of fixtures stiR annexed nor for any injuries to 4. Itiesmas. but it lies as well where the possession was obtained by a Trespass. Possession and the Law of Finders. (N. Treatise on Pleading and Parties to Actions. Of Injuries to Personal Property.. and the statement of the 3 finding is neither material nor traversable. and no Damages are recoverable for the act of taking. 1 ~. by a fiction of law—that is. 63 lll. 323 (1589). Decision: Dame v. that is. See. Unsatisfied Judgments in Trover.L. 52 Harv.A. but not where articles are severed from land by an adverse possessor. 371 at 373. therefore. The manner in which the defendant may have obtained possession of the property is no longer material. 157 (Northport 11906). Oxford 1775). . 6. In such a case. c. II. 401 (1896). 5 Minn. 1388 (1020). Q. 3 Yale L.Rev. also.Rev. (N.J.. Illinois: Lemaa v. The injury lies in the conversion or misappropriation of the goods. liD Fordham L. Rubin. Graham.. Springfield 1876). 30 Ill. waives the Trespass. a Ii. by bringing Trover. XIII. It does not lie. by Perkins. Page 222 of 736 . with Precedents and Forms. 37 (1801). in Humbly v. 121 Eng.L. 21 Cornell L. Scott. The Action of Trover. 165 (16th Am. Springfield 1876). 7. 2. 2. version. and Finder of Property Lost or Mislaid. 49 Harv. Annotation: Respective Rights of Carrier.

where trees have been cut and carried away and made into charcoal. Taylor. minerals. Ccc-win. 85 Am. Stilson. where It was held that the action would lie for cutting timber without carrying it away. 27 Mich. New York: Middlcbrook v. 247. 15 Wend. Illinois: Altes v. 667 (1829).W. 153 (1873). Boston Water Power Co. Alabama: Riddle v. see tho following eases: Massachusetts: Anderson v. or other fixtures have been severed from the freehold. 155 (1858). 36 Am. MeLaren. mortgagor and mortgagee. Pennsylvania: Forsyth v. MortIrner. 18 Mich.Dec. New York: Mooers v. 780 (1860). 41 N-H. Massachusetts: Riley v. 172 Eng.1° A building erected under an agreement that it shall remain personal property. etc. Wallis. the property is thereby converted into personalty. 14. 3 remembered that not everything that is fastened to real property thereby becomes real. 241 (1870). 294 (1848). & Aid. 7 P. 16 East. 659 (1840). Driver.OFFENSIVE PLEADINGS land or other real property. 104. 127 (1881). 381 (1879).Rep.R. 47 Mich. Pennsylvania: Lehr i‟. 100 Eng. and without the vendor‟s knowledge it is so attached to the realty as to ma&e it. Jones. Archer. where the defendant has the actual adverse possession of the land. 31 Pa. Pitt v. 115 Mass. 4 Barn. Johnson. 41 Pa. 206. 12 Ala. 63 Am. Ingersoll v. 731. Michigan: Creeley -v. under ordinary circumstances. a fixture. 270 (1882). 27 Mich. 18 N. Seeiye.. Massachusetts: Nelson v.° It must be Morrison v.E. Sanderson Ilaverstick. 77 AntDee. Trover will lie for the conversion of the machinery. 401 (1864).Dec. Jaurrin. (N. 53 Iii. 90 Pa. Pennsylvania: Overton v. property may remain personal though annexed to the freehold. Barnes. and Trover will lie for its conversion. 275. 13. 214 Mass. Stilson. 11 Cush. New flampshire: Wadleigh v. 153 (1873). 80 Am. Massachusetts: Brown v.” The owner must resort to his remedy for the recovery of the land itselt Some cases allow the Personal Actions for things severed after the N. Lytle. 4 N.Y. 327. 503. 104 Bug. 10. Rep. 10 NW. 36 111. Illinois: Simicins v. New Hampshire: Pinkham v. Williston. 59 Mich. 101 Pa. 1. Hinckler. 389. Pond. 828 (170€). Or where mineral or earth or manure is dug and taken away.Rep. 1068 (1913). Dana v. 20 Am. buildings. Where growing corn or any other crop is cut and carned away and converted. 440 (1880). 061 (1855). 32 Am.Y. 484 (1826).Y. or otherwise converted. &P. 21 Pick. Back-us. New York: Goodrich v. as between landlord and tenant. S.W.Dec. 616. V. 7 M.Dee. and Trover will lie . ~ English: Gordon v.Dee. Trover will lie. Berry. even by a severance of what properly belongs to the freehold. 101 Eng. The remedy is Trespass. Trover is the proper remedy for ts conversion. (Massj 367. 15 Ill. Knowlton v. 26 NW. Michigan: Greeley v. 156 (1874). Harper.) 142 (1841).) 104.Rep. 397 (1854). also. Green.” So. Page 223 of 736 . 204 (1818). Daniels v. Bep. 27 Mich. remains so. Rep.E. unless there has also been an asportation. 42 Mieh. English: Higgon v. vendor and purchaser. 85 Am. 260 (1838). 102. Shew. 407 (1804). 913 (1821). Michigan: Final v. 1389 (1833). 3 Wend. Greeley v. 533 (1884). (Mass. they are carried away. 40 Me. 47 (1877). 100 N. earth. 617 (1801). Michigan: weldon v. 53 Mieh. 15 Mass. So. and before It is paid for the property is sold to someone with notice of the vendor‟s claim. 8 Pa.. Wait. Hinekler. Wells. 151 Eng. (N. 218 (1869). And as to manure. English: Boraston v. 36 Ill. and claims title to it. 77. but with a stipulation that title shall not pass until it is paid for. however. Weeton v. 1010 (1812). 153 (1878). and if it is personal. Smith v. Cf. Growing grain eaten by trespassing cattle cannot be said to have been converted by the owner of the cattle. 291. 590 (1847).) 169 (1856). 2 Hill (N. Maine: Whidden V. Where machinery is sold to be set up in a mill.Dee. & W. Woodcock. Baird. Burt. Stilson. 533 (1886). Bracelin v. after trees. Rogers. Todesco.‟t It may be stated here that the action does not lie for stone or gravel dug from land or crops or other articles severed. 6 Car. 275.) 11 (1853). Gear.5 If. Altes V. 37 Mich.

Where the landlord takes possession before the end of the term. W. ed. 666. animals ferae naturae converted after being tamed or killed. Oakes. 100 Am. bonds. 652. Lehman. 16. Davis. 626.E. 235 (1811). Life Ins. c.Rep. Rep. 165. by Perkins. Maine: Pullen v. c.) 509. 166 (16th Am. 362 (1854). Meadowcroft. English: Elwes v. 194. 106 Eng. Hayes v. though the property is attached to the realty. 124. It is also necessary. LewIs. Illinois: Chickering „vc Baymond. 989 (1791). Jeftres.Dee.W. Springfield 1876).Dec. 15 Ill. without the tenant‟s consent. Taylor. also. 630 (1879). 10 Johns. with Precedents and Forms. & AId. 126 Ark. 146 (1869). Co. Amory v.App. 38 A. German Nat Bank of Chicago v.‟8 14. Springfield 1876). 603 (1817). 371 (1897). 125 III. Daggett v. 40 Me. 99 CIt 9 ACTION OF TROVER 208 209 recovery of possession of the land. 107 Pa. also. 405 (1866). 18 N. Treatise on Pleading and Parties to Actions.) 176 (1841).. Treatise on Pleading and Parties to Actions. 18. 9 NW. 24. 2 Barn. 20 Ri. 60. 4 1Il. 102 Eng.L. Rhode Island: Royce v. 27 Mieh.Y. by Perkins. 549 (1918).. 137 (1880). 548. & Aid. Stone. Illinois: German Nat. 529 (1881). For example. copies of records. certificates of stock. Lyle.Dec. 3 Serg. A Treatise on the Law of Conversion. 18 Mich. English: Watson v.Rey. Meadowcroft. 327 (1818). II Of the Forms of Action. 167 (16th Am. See. Jones. L. 95 Ill. Jackson v. Baxter. with Precedents and Forms. 189 3. ~ Minn. Ministers of Trinity Church. 41 III. Preston.R. Massachusetts Mut. III.) 139 (1866). the tenant can maintain Tro-ver. 18 N.Y. 314 (2855). 8 Am. 510 at 510 (1802). 35. 35 Am. 87 (1815). English: Orton v. Bank of Chicago v. in order to maintain this action. Sec. 322. 488. 100 Eng. 10 Mich. 106 (1884). 1 Chitty.1918A. Bell. Chitty. 286 Mass. 1 L.E. King. 483 (1862). 53 MIch. Barnum v. Benson. Hicks v.11. 1329 (1822). Rep. 4 Camp. and prevents him from removing his personal property. etc. Arkansas: Bethea v. Illinois: Davis v. Massachusetts: Ilinckley v. & E. (Pa. that the plaintiff shall have the right to some specific property. 6 Am. 4 Taunt. 272. New York: Smith v. 3 East 38 at 53.Rep. v.. Pennsylvania: Mather v. 155 (1921).. Morton v. Michigan: Rose v. 332 (1873). promissory notes. c.R. NI. I Hill (N. 4 T. It will lie for an undivided interest in a specific chattel or in a mass. Note: Trover and Replevln—Title to Things Severed from Real Estate by Adverse Possessor.‟4 but it will not lie for money had and received generalThe fact that the plaintiff‟s interest in the property is in common will not defeat the action. but the normal remedy after Ejectment is a claim for Damages by way of Mesne Profits. 17. § 16 (Boston 1917). 1~.Rep. Davis v. 46 Mieh. 316 (1813). Baker. 4 (1920). 128 Eng. Iron Cap Copper Co. 128 N.Rep. as an insurance policy. 252. See. 229. Maw. 13 Allen (Mass. (N. title deeds. 1 TROVER—TJISTINGUISIIED FROM AND CONCURRENT WITH OTHER ACTIONS Page 224 of 736 . Atkinson v. The action will lie for so many pieces of money taken and converted by the defendant. Watts v.‟° The conversion of any specific personal property of any sort whatever will give rise to an Action of Trover‟7 It will lie for the conversion of any valuable paper. 171 Eng. Bowers. II Of the Forms of Action. 5 Barn.R. 185. 12. Anderson.Rep. Massachusetts: Arizona Commercial Mining Co.A. Flyn.) 102. Butler. 106 Eng.A. 303 (1888). 13.

St. if a bailee or other person in possession misused the goods of the bailor in such a way as to impair their value. could not recover in Detinue. with Damages for the unlawful detention. if. Klnaston v. Basset v. that the action was allowed as a substitute for Trespass. For later cases on the same point. And in 1596. I. Cro. 72 Eng. Lancaster Bank. THE Action of Detinue. 210 Ch. 160. Such an action was. 32 NW. taken for granted as early as 1461. at the request of the bailor. the owner was able to avoid a multiplicity of actions. as contrasted with the certificates of stock. Lectures on Legal History. 78 Eng. f. Kelley. 13.) 507 (1867). 72 EngSep. and in Vancirinic v.become a 99. 91 (1884). and not as an alternative of Detinue. Kirk. it was said. 926 (1886). and any possessor other than a bailee for the destruction of the goods. Contra. 84 (Cambridge 1913). however. 28 and in 1604. see Inhabitants of First Parish in Sudbury v. in the case of Bishop v. 26. 66 Mich.flep. 24. 1 BoNe. & H.E. f. IV. Moore. 79 Eng. where the chattel bailed found its way from the bailee 51 Am. 12 Edw. Cro.” . I‟ 1ewman. In which the Justices and Barons declared that “although he took it ~ ~ trespass.Notcs Cas. Lecture VII. on the ground of refusal to surrender the goods on demand of the owner. Each of these remedies had their own peculiar characteristics and Trover was not completely coextensive with them. as to shares of bank stock. Shortledge. Neiler v. p1. 21 Pick. in which the owner might recover the chattels or their value.) 148.~ Trover was permitted against a finder. 71. 105 (M) 10 (1610). 69 Pa. Stearns. fly the successive extensions over a period of time of the action of Trover. 7.) 285 (1828). Keil. Archer. But if the defendant saw fit to restore the chattels under the judgment and the owner wished to recover Damages for the injury or diminished value of the chattels. (Pa.E. even though the original taking was not adverse. as it was regarded as impossible to show a detention where the goods had been previously destroyed. Trover. after diminishing the value of the chattels. 1046.Rep. Brown v. see Leserson v. 33 Hen. 2‟ It having now been held that Case would lie against any possessor for misusing the goods. Ames.23 the same effect was given to a sale by a finder. RIaynard 25 held in the year 1601 that Trover would lie for a wrongful taking. B. it was bound to follow that such an action would be permitted against a bailee who destroyed the goods. 678 (1627). in the case of Eason v. Abridgment. 403 (1871). Replevin and Trespass de Bonis Asportatis. As to conversion of records. Detinue was available. it was held that the plaintiff might elect between 2‟ . 23. Lecture VII. 84. 22. and thereafter. 85 (Cambridge 1913). Crotlis. Montague. (Pa. 334 (1510). the bailor. Dean Ames stntes that this “is noteworthy as being the earliest reported case in which a defendant was charged with „converting to his own use‟ the plaintiff‟s goods.Eliz. 20.ltep. I WIdy. 5. I. by the close of the Eighteenth Century it had concurrent remedy with Detinue. Trover or Trespass. Sewall v. as a result of which Trover became established as a concurrent remedy with Detinue in those cases involving a misfeasance. 221. 28. I. surrendered them. Ames suggests.” Lectrnts on Legal History. Whatever doubt prevailed on the point as to whether Case would lie in favor of the owner in this situation was ultimately resolved in favor of permitting the action. 44. Y.2° Originally. 2.1 Leo. 10. 25.22 In a case decided in 1510 23 it was held that a wrongful sale by a bailee would amount to a conversion. p1. 1051. 18 Edw.Bcp. p1.Car. Trover. 9 (1472). 89. the only remedy available to the bailor was an Action on the Case. yet the other may charge him in Sn AcUrni upon the case In Trover If he will. according to Dean James Barr Ames. The next step was for Trover to become OFFENSIVE PLEADINGS concurrent with Trespass. 17 Serg. if he desired to recover full Damages. the bailee still refused to deliver them upon the demand of the owner. it having been earlier held that Trespass could be maintained as the taker was a trespasser ab initlo. 819. Pennsylvania: Lewis v. p1. he was forced to bring Case. Thus.Rep. in its broadest scope. (Mass. Charles.‟° Of course. and the Action of Trespass failed to adequately protect the rights of owners in their chattels. iv. VI. which occurred in a case decided in 1479. 208. 74 Eng. a Page 225 of 736 824. By bringing Case in the first instance. 9 into the hands of a third party and was destroyed.

H. casually lost the said goods and chattels out of his possession. 396 (1770). to wit. heretofore. Sec. 98 Eng. After Trespass became concurrent with Replevin. of the United Kingdom of Great Britain and Ireland. GRAVAMEN. Recital of Writ.Eep. GREETING: COMMENCEMENT. which lay for a wrongful distress. Defender of the Faith To the Sheriff of County. 722 (1675). 84 Eng. P. 1913). of great value. at Westminster in the county aforesaid. Possession.28 Under the foregoing decisions. I). except where the bailee was unable to deliver the goods as they had been negligently lost.Eliz. Cro. and thereafter was dropped. the said P. to wit. 27. INDUCEMENT. was lawfully possessed. D. 282. And being so possessed thereof. to wit. although Trover had now been extended to cover the Field of Both Detinue and Trespass. 5 Burr. 29 Prover followed suit and also became available on the theory that a wrongful distress constituted a conversion. Conversion. of certain goods and chattels. P. ten tables and ten chairs. Sykes v. at Westminster aforesaid. 101 211 FORM OF TUE DECLARATION IN TROVER 100. therefore. Lectures on Legal Elstory. not being subject to Wager of Law. P.. as of his own property. 28. King. and the same afterwazt. 3 Keb. Ames. on the day and year aforesaid. of the value of ten pounds of lawful money of Great Britain. until after the early part of the Nineteenth Century. One further conquest remained to be made. it was held that Trover was available against the bailee on mere demand and denial. Thus. in such a case the bailee was liable in Assumpsit. on the first day of May in the year 1800. P. well knowing the said goods and chat tels to be the property of the Page 226 of 736 . DECLARATION IN TaovER ACTION OF TROVER (Alleging Loss and Finding) EDWARD TUE ThIRD. was that Trover. came to the possession of the said t). As the Action of Prover was an offshoot of the Action of Trespass on the Case the Form of the Action in some respects follows the Form of Case. Trover became a concurrent remedy with Detinue. on the day and year aforesaid at the place aforesaid. 2657‟. The Form of the Original Writ and so also the Early Forms of the Declaration contained a statement that the defendant had acted to deceive and defraud the plaintiff. Replevin and Trespass. Middlesex. by J. was attached to answer P. Walls. 20. and supplemented by Case and Assumpsit. For that. The net result. complains: BODY. of a plea of trespass on the case. 78 Eng. in 1675. Lecture VII. by finding. Tro‟ver. to wit. Finding. and thereupon the said P.. But after various negative holdings. afterwards. 85. was substituted in lieu of Detinue. to wit [venue] . Trover had finally emerged as a remedy concurrent with Detinue. the said P. 88 (Cambridge. his attorney.Bep.conclusion based on the fact that for many years thereafter Prover was not permitted against a bailee who refused to deliver the chattel to the bailor upon request. Queritur. by the grace of God. 495. 745 (1596).D. The statement as to the Loss and Finding ultimately became immaterial when Trover was extended to cover any wrongful taking. Loss. Tinkler t Poole.Eep. Yet the said Ii D. whereas. to wit.

Horrall. The immediate right of possession as against the wrongdoer is all the property right necessary. (Ala. 941. 180 (2d ed. Bowers. TITLE. Symonds. of [in the sum of] £10. Ad Damnum. lMvidson v. 4 Barn. I NIl. 15 IlL 362 (1854). 73 (3d Am. And see. It is sufficient that the plaintiff at the time of the conversion had the right to immediate possession.] hath not as yet delivered the said goods and chattels or any part thereof to the said P. 91 MIch. the said D. to the damage of the said P.] STEPHEN. Raymond. 208. 101) lad.1892). 409 (1876).) 270 (1828). 200 (1863). New Hampshire: Poole v.Rep.Pl. but so to do hath hitherto wholly refused. the plaintiff must allege that he was in possession or entitled to possession of the property at the time of tim alleged eonvernon. 51 NW. CONCLUSION. 21 Eney. Stewart. in his behalf. Weedinan. KEIGWIN.Dec. [and of right to belong and appertain to him. 434 111. The Essential Allegations of the Declaration in Trover are: (I) The plaintiff‟s Possession or Right of Immediate Possession of certain goods. INTEREST OR POSSES ALLEGATIONS~ (2) TUE PLAINTIFF‟S The plaintiff must have the Eight to the Immediate Possession. or the right to the immediate possession.said P. Owens V. either General or Special. §1 490—492 (Boston 1917). 192.E. Moseley.. 10 Vt. to wit. arising either from the actual possession or from title of any sort. Cases in Common Law Pleading. 1309 (1825). Chickerbig V. 107 Eng. 414. converted and disposed of the said goods and chattels to his.3° “Special Property” may arise from a bailment or even from bare possession. DC. Indiana: Traylor v. 9 N. by Tyler. Rochester 1934). IX. In an action for conversion. 33 Am. SION Title and Possession to Support Ti-over IN order to maintain this Form of Action. vermont: Swift v. Baals v. DECLARATION IN TROVER—ESSENTIAL ALLEGATIONS: (1) IN GENERAL 101. 31.) Page 227 of 736 . (II) The Conversion. and still refuses. McMillion. 197 (1838). 7 Port. 1062 (1892). (Tad. Illinois. 371. English: Bloxam v. P. Illinois: Bisendrath v. p. Waldron. A Treatise on the Law of Conversion. 300 (1872). in the chattel. & Prae. OFFENSIVE PLEADINGS DECLARATION IN TROVER—ESSENTIAL RIGHT. 82 Ill. 31 Ill. P. 8 Am. Sanders.Dec. not possession. Michigan: Warren cc Dwger. Washington. but the plaintiff‟s property or right may be stated generally. A defrauded seller may regain his Right of Possession by election to rescind the sale. but contriving and fraudulently intending craftily and subtilly to deceive and defraud the said P. c. The Right of Posses sion may arise front a bailment or from bare possession itself. 1063 (Northport 1895— 1902). A mere servant has custody. A Treatise on the Principles of Pleading in Civil Actions. have had a Property. it is commonly said that the plaintiff must. D. as to the statement under the Indiana Code. The Right of Possession is sometimes spoken of as Constructive Possession. (III) The Value of the Goods and Damages by their Conversion. Alabama: Glaze v. 71 (1818). and also the actual possession. and afterward. 120. on the day and at the place aforesaid. must be sufficient for purposes of identification. at the time of the conversion. & Cress.3‟ 30. also. with description. See. 4 Blackf. own use.Dee.. and therefore he brings his suit [inde producit sectam. 403 (1831). Production of Suit. the description of the property converted and the plaintiff‟s right thereto. P. ed. 83 Am. 289. including in some cases Demand and Refusal.‟s. although often requested to do so. Knauer.

17 NW. MeVicar. 4 N.W. Grove v. (N. 20 Wend. 161 (1878). 59.38 a gratuitous bailee. the vendor may avoid the sale. 298 (1892).) 245 (1906). 711. Manchester. at Englisl~: 317 (1837).Burk v. Carrington. Arundale.S. 513 (1887). 407. Maine: Atlas Shoe Co. 109 Eng. MeShaff cry. 379 (1839).RA. 38 NW. (N. Pennsylvania: Pulton v. 173 (1875). 2 Ain.S. 5 Hill. Rhode Island: Rexroth V. 230 (1885). Miller. without a previous demand. v. Sec. 12 Johns. 32 Much.Dee. see the following eases: Alabama: Street v. 323. 173 (1875).Bep.Y. Barker v.Y. Bright. 102 Cli. Kissam. 8 Wlsly. Peters v. Paine. Russell. (Mass. Michigan: Beebe vKnapp. 47. 502. (N.Dec. 39 Mich. 10 N.Y. Woodworth v. 197. Blades v. 38 Cye. 202 (1823). Austin. (N.Rep. Massachusetts: Brownell v. 0 Barn. New York: Green V. -35. 49 Pa. Pennsylvania: Caster v. 42 Ill. Cowan. 35. Brant.. 13 Vt. 1 rick. 819 (1889).Rep.4‟ 34.) 106 (1846). Witherspoon V. 3~’ Kimball v. See. and a special property in. 130 IU. 265 (1813). 484. 28 Mich.j. 33 Am. 34 Am. 23 AtI. 10 L. Hitchcock v. (Mass. 6 Houst.38 a warehouseman. 624 (1609). 1 M. 7 Taunt. 42 Much. Webb. 24 (1816). and. ~ or by a carrier. 15 n. (N. MIchigan: Ste Ferguson v. 119 U. And that a mere lien without possession is not enough. 569. 399 (1809). (N. Steiger. flIanchard.33 phenson v.) 297 (1827). 71 (1818). Dun-fling. 6 Black?. 10 Mieh. Nelson. the property passes irrevocably. 59. (N. Noble y. 258. 129 Eng. 42 III. Michigan: Burk V.3° or by any agent who is responsible over to his principal. the goods by virtue of an Execution or Writ of Attachment. 18 L. North Carolina: Lewis v. 53 (1873).) 183 (1843). New York: DeeIcy v. Barton v. Webb. 15 lohns. (Mass.) 186 (1817).Y. with knowledge of the fraud. 48 Pa. L. 9 Yerg. New Rampsbire: Poole v. Ballistier. (Mass. 1 N. 1 Mete. Ryan v. Cunningham. also. 227. that if the contract is affirmed. English: Wilbraham v. 8 Am. at least after a demand and refusal to return the goods. 437 (1865). 7 S. & Cress. 1 Pick. Clegg. 3 Am. 80 Ala. Little.Y. Bechard.Saund. by bringing assumpsit or otherwise. Coon. 1t It must be borne in mind. 7 Cow. Tittabawassee Boom Co. 60 (1883). (In&) 209 (1842). 51 Mieb. Vermont: flayer v. Caldwell v.) 195 (1810).Ct.Notes Cat (Pa. Prink v.40 The finder of goods has a Special Property in them which will enable him to maintain Trover against any one but the true owner. 2 Wms. 4 Mass. 9 ACTION OF TROVER 213 212 A bailee or any person in possession of goods may maintain Trover against a stranger who takes them out of his possession)4 The action will therefore lie by an officer who had the possession of. Heineman v. 102 Me. New York: Hotehkiss v. WIjalley.E. Eaton. Adams. Wise. Dwight. 37. 30 LEd. Pratt.) 389.) 405 (1826).W. 73 (1865). 2050. Mobley.) 403 (1815). Massachusetts: Thurston v. 209 (1880). Co. Hanee v.) 167 (1838).) 344 (1881).Dec. II.Y. 327.) 232 (1822). 504. 228 (1888). 863 (1885).If goods are obtained by fraud. 700 (1839).37 a consignee. 105 Engtep. New Jersey: Debow V. (Team) 262 (1836). Tucker. Snow. 59. 289. Illinois: Eruner V. 965 (1884). Delaware: Stewart v. Pennsylvania: Weidensaul v.E.) 18. Page 228 of 736 .J. 5 Mass. B. 433 (1862) Rubble v. 230 (1880). (Mass. New York: Dillenback v.) 557 (1840). 85 Eng. Symonds. 6 Johns.St. (Del.Rep. 70 Mieli. Jerome. 66 AtI. 37 Am. however. Hutchinson. & 5. Coil ax. 32 Web. 128 (1828). 22 N.Y.Dec.Dee. V. 561. by the weight of authority. Stevens v. Northern Pac. 232. Tennessee: Caldwell v. 007 (1841). Badlam V.ThA. 22 Pick. and bring Trover against the vendee. 30 N. 3 Pick. A statute giving the lessor a lien on crops grown on the demised land does not vest him with such title thereto as to enable bin to bring Trover for the crops against a purchaser from the tenant. it) N. Reynolds. 11 Am. 78 (1866). 22 (1829). 34 Mich. 890. Lawrence. An equitable right will not support the action. 34 (1866). 20 Nc.Dec. Dyball. CoviU. and therefore Trover will not lie. 132 N.

11 Wend. 2 Wms. 262. Maloney. 572 (1910). 9 Cow (N. 1148 (1809). It is otherwise in the case of a bailee with the right of possession for a specific time and purpose. 41. 276. Brown. Anderson. Booth v.Y. 4 Blaekf.Dec. also. Wilson. 4 Mich. 75 AtI.L. 9 Page 229 of 736 . 22 (1817). 47(b). 59. is criticized as unsound by certain authorities. This might well be the rule where the person in possession does not claim complete Title. 15 Wend. and by such recovery bar a subsequent action by the bailor for an injury to his general property without his consent. where the bailor or owner has intervened and asserted his general property. Phelps. Rep. cannot recover against a third person for the conversion of the bailed property. 53 Mc. and has sufficient interest to maintain an Action of Trespass or Trover against a thief or wrongdoer for disturbing that possession. 544 (1866). Winchester. or wrongful possessor is permitted to sue and recover Damages which he has not sustained. ~7. (N. 214 43.Raym. 42 in which the court established the doctrine of Modern Damage Law..Y.Y. English: 40. fllinols: Eisendrath V. 58 (1813).) 535 (1839).Rep.) 329 (1827). should be enabled to protect such possession by appropriate remedies against mere naked wrongdoer&4~” Thus the United States Government. t) 54 (1833). 2 Beven. 1080 (1697). New York: McLaughlIn v. 31 Am. Saltus. it is recognized that the mere naked bailee. is entitled to recover only his own Damage. Vaughan. Indiana: Coffin v. 418. VII.) 472.Y. (N. (Mass. 1 Barn. Spear. 26 LEA. Abridgment. London 1904). who sues without joining the other coowners. v. even where the general owner Ch. c. 626. who has the 42. See. 1 RoBe. See.) 410 (1837). 242 (1818). 15 Mass. Faulkner v. Massachusetts: Allen v. (N. Wilbraham v. 64 Ill. the following cases: English: Arnold v.44 It does seem strange that a bailee is entitled to recover for the entire Damage done to property by its injury. see. Lynde. Tilford. 11 Vt. the followung eases: English: Stirling v. & S. note (3d ed. Snow. 33 N.) 840. 7 Cow.. 147. Smith. 1145. and may recover the entire value of the property. Negligence in Law. 103 Eng. 655 (1912). 132 (1856). 3 Bar. 105 Eng.36. 11 East 019.43 It is suggested that the General Owner and the one having a special property should each bring an action for the actual loss or damage to his own particular interest. (N. 91 Eng. Knauer.Rev. See Note: Damages for Injury to Chattels Recoverable by Person Having Possessory Interest Only. Pennsylvania: Gunzhurgor v. Clerk & Lindsell. 300. even without Title. 736. Jefferson. 22 Pick. gives the possessor sufficient property to maintain the action against a mere stranger.Rep. 396 (1872). New York: Duncan v. Massachusetts: Eaton V. IV. that a bailee may recover the whole damage done to a bailed chattel by a wrongdoer. Michigan: CulIen v. 1 Ld. 18 Am.Bep. at the will of the bailor. London 1908). Smith v. 484 (1837).) 63 (1834). Rosenthal. 737. 308 (1813). e. 282 (3d ed. 13 Wend. like any other bailee. loss or misappropriation. 624 (1669).) 474 (1826). even though wrongfully obtained.42 The rule by which a bailee. or where the General Owner does not consent to his recovering the total loss.Saund. (N. Delaware: Bare possession. (Del.Rep.) 68 (1839). North Carolina: Barwick v. is bailee of the letters and their contents for hire. Law of Torts. while a joint owner of personal property. James. Everett V. 4 (London 1668). also. Coles. 6 Watts (Pa. 351 (1839).) 63 (1834). 25 Han‟. Vermont: Knapp v. in carrying on the post office. 13 Wend. Baker. finder. Fairbank v. also. New York: Faulkner v.e.4° right to recover to the extent of the value of his special interest in the property. 10 Mass. But it is generally recognized that “the peace and order of society require that perSons in possession of property. (N. 30. 1 M. & AId. 85 Eng. Gas.S. 80 (1550). WaIte. 106 Eng. criticizing the case of The Winkfield [19021 p. Barwiek. Pennsylvania: Trorub v. 226 Pa. OFFENSIVE PLEADINGS intervenes. Maine: Vining v. though the ballee would not be liable to the baulor for such wrongful act. O‟Hara. Clark v.Y) 670 (1827). (md. Brown. Indeed.Marthil 38.

Faulkncr v. Pease v. it must be brought by the master. Leavitt. & C. 246 (1800). New York: Ingersoll v. Spear. Massachusetts: Winship v.4° One is said to have constructive possession when he is given the same rights and remedies as if he were In actual possession. Piekard.Rep. Faulkner v.E.) 63 (1834) 40. Daniels v.Rep. English: Gordon v. 417. Illinois: Chiekerung v. Benjamin v. Duncan v. 15 III.Y. Wyatt. 107 Fng. Massachusetts: Eaton v. Mathews. Van Bokkelin.Y. flop. 411 (1000). IN order to maintain Trover. 13 Wend.E.41 44. Bolinan. however. flitcheock.Rov. or the right to immediate possession. 3 Camp. Michigan: Axford v. Trover may.A person having a special property in goods.. 9. New York: Ban V. 7 T. 13 Barv. Eisendh-ath v. be maintained 11 Wend.Y. English: Eloss V. 130 Ill. S Cow.) 63 (1834). 127 Eng.) 57.Rep. 48. 22 N. Ball v. Jerome. 06 Fed. 170 Eng. 893 (1586). 617 (1800). 327. 61 NW. 12 N.E. by the bailor or bailee—though a Judgment obtained by one of them will be a Bar to an action by the other~° But this is not the case where the bailee has the exclu sive right of 21 S Page 230 of 736 . 80. ri-ink v. Massachusetts: Ludden V. Draper. but. 421 (1887). United States. 396 (1892). 188. 377.Engel v. (N. 941. 70 (1904). Arnett. 268. 36 NW. 10 Gray (Mass. at the time of the conversion. 7 Cow.W. Moore V.Rep. Rep. 825 (1895). ACTION OF TROVER either by the General or the Special Owner— that is. (WY. as in the case of a pledgee for value. 60 Minn. Where the property was. 327. or a bailee having a lien. 1300 (1825). the General Owner.) 54 (1833). 48 Constructive Possession or Right to Possession. 4 Wentt (N.Y. New Hampshire: Clark v. (N. Surety Co.. Raymond. 15 Mass. the plaintiff must have had possession.Y. (NX. 11 %Vend. 51 Dl. 1080 (1810). or on Process against. 828 (1796). (N. a chattel mortgagee after condition broken. Brown. 104. Pacific Steam Whaling Co. 23 N.L. New York: Diilenback v. Sanders. 185 (1880). 64 12. 68 Mich. in the hands of a bailee at will. and not dependent on some act to be done by the plaintiff.H. 187.E. 13 Wend. Knauer. Illinois: Cooper V. 1350 (1812). Cooper. Ball.EnglIsh: Roberts v. note (1833). It is not enough that the plaintiff had a good right of action. 953 (1001). 45. Bank of England. Sec. may maintain Trover even against the General Owner.Guttner 4° National 47. 9 Mass. Co. and being entitled to the possession as against the general owner. 2 Taunt. (lad. 19 N. 22 N. 242 (1818). 144 Mass. in most cases. Maxwell. Neale. Harper. Indiana: M‟Connell v. 7 Cow. 101 Eng. Lynde. cannot maintain the action. Brown. (N. Ditto.) 382 (1858). 4 Earn. Owen 52. 456. Foster v.Rep. or when some bailee at will is in possession subject to his orders. (N. 819 (1889). 5 N. Lumbermen‟s Mm. 43 Much. 189 III. Pratt. 45 (1812). 171 (1888). 9 Cow.. Atwood. 50 N. 38 Am. Lyon. 1420 (1813). at the time of the conversion.) 053 (1527). 327. acting professedly as such. Crocker v.) 610 (1827). v. Illinois: Hutton v. if brought at all. 74 Eng.E. 132 Ill.) 52 (1828). 362 (1854). 419 (1849). Note: Damages—Gratuitous Bailment— Prover. 1.E. and having only the custody of the goods. Daggett. 130 III.Y. v. (N. absolute and unconditional. 108 (1869). 3 Camp. or against one who has converted the goods by authority of.) 419 (1839).) 292 (1830). 39. 6 AnrDec. 129 Fed. 170 Eng. Frink V. This may be the case of an owner when no one is in actual possession. Bush v. 819 (1889). 588. or a right to take possession at some future day. Pratt. Bloxam v. 102 The right to possession must have been inunediate. 3 fflackf. Scott & Hobston Lumber Co. A mere servant.) 294 (1827).

Snow. (N. Moan. for the owner has the constructive possession. 230 (1887). Gordon v. where the property in them has passed. with a farm. 103 Eng. V. Rep. may maintain the action for their conversion before they left the actual possession of the vendor. Illinois: Forth -v. 3foseley. 13. James. and for their subsequent conversion he may maintain Trover. 513. Illinois: Gauche v. Michigan: Rogers v. 7 Cow. New York: Smith v. English: Gordon v. Illinois: Montgomery v. for four years. as against the bailor. 7 TB. 121 III.Eep. 882 (1882). Pennsylvania: Baker v. The general ownership with the right to possession creates a constructive possession. Phe]ps. acquires constructive possession. Windoes. Quinn. 6 Mass. Baldoek. (Pa. ~° a consignee of goods. who has not the right to withhold the possession from the General Owner. 85 EngRep. 101 Eng. Abridgment. Burling. (N.Rep. Cowan.Y. 5~ and the vendee of goods. e. Atwood. (Pa. 152 (1876). Harper. 394 (1810). Rice (S. 7 T. where a person has de 50. 17 Me. provided he had the right to immediate possession. 170 Eng. Page 231 of 736 . 101 Fag. Bacon.E. I Taunt.) 255 (1825). Brush.R. 1350 (1812). Hill v. 101 Eng. 484 (1840). generally has such a right of possession of timber wrongfully cut down during the lease as to enable him to maintain Trover if it is removed. 3 Pick. however. 828 (1796).M So an executor or administrator has constructive possession of the goods of his testator or intestate from the time of his death. Brennan. 085 (1809).) 285 (1839).) 272 (1824). 12 N.Rep. Shult v. Harper. Maine: MeNear v. 88. 208.53 Thus. English: Gordon v. 27 III. so that the bailor could not in general maintain Trover for their conversion. 12. 7 TB. Alabama: Natioas v. 885 (1808). involving trespass. & H. Rep. Harper. 1 Chitty. 55. Massachusetts: Wheeler v. 7 T. 22 Pick. Lovet. 465 (1833).) 476 (1821). 859 (1847). Springfield 1876). James. 12 Serg. 607 possession as against the baflor.53 The person who has the absolute or general property in goods may maintain Trover. where goods leased as furniture with a house were taken in Execution against a former owner. 82 Iii. Harper. the bailor 2 Win‟s Sauad.) 262 (1836). by Perkins. he may maintain Trover for conversion by a stranger. 33 AntDec.58 If the bailee of goods. Dewell v. 13 N. Furs-icy. Minett.) 285 (1814). 61. 3 Camp. 42 Mich. New York: Thorp v. (N.App. (Mass. Harper.C. New flampshire: Preach v. Rice (S. ~ a trustee of goods has constructive possession. Howell. Mayer. 625 (1669). 53‟ Wimraham V. 7 T. (1592). 107 (1838). 9.R. English: Gordon v..R. 171 (16th Am. Barker. 828 (1796).) 328 (1827). may bring Trover for their conversion after their delivery to the carrier. Tennessee: Caldwell v. 628. 828 (1796). Rep. 13.Therefore.Y. having the right to their possession. Train. 12. Rep. 6 N. 676. 101 Eng. 54. 62. arid before he has acquired actual possession.) 329 (1827). vermont: Swift v. and sold by the sheriff. Thus. Rep. 11 Ala.) 264 (1839).C.English: St „Wooderman 6‟ s. ed. 187. (Tenu. & B. Massachusetts: Towle v. 828 (1796). 101 Eng.H. 11 East. but should have brought an Action on the Case. (Massj liverS goods to a carrier or other bailee. e. New York: Smith v.W. Gordon V. it was held that the landlord could not maintain Trover against the sheriff pending the lease. 210. where the owner of cattle leased them. v. 547 (1819). with Precedents and Forms. “Trover” (Philadelphia 1868). 9 Yerg. 129 Eng. Hawkins‟ Adm‟rs. Dote (1). so deals with them as to terminate the bailment. Bugg v. 127 Eng. Hail „r. English. 7 Cow. 47a. who is also the vendee. 10 Vt. Treatise on Pleading and Parties to Actions. II Of the Forms of Action. South Cai-oilna: Kerby v. though they are in the actual possession of the cestui que trust. as the right of possession was in the tenant 5‟ A landlord. Merrill. 828 (1796). 391. 11 Johns. Fairbank 535 (1839). 134 (1862).Y. C Serg. though he has never had the actual possession. Lantz v. 8 Taunt. Drum. Pickard. 44 Ill.

160 (1865). A bailee.Dec. ‟ in which A was the holder of a bill of sale upon furniture belonging to B. quantity. may only amount to a breach of obligation. 391. 81 Me. not being in possession. 104 Me. B went into bankruptcy. as by selling or pledging it as his own. Mere misuse. whereupon the Title to the furniture. In the latter case. 561 (1909). 7 T. (N-S. If his acts imply an assertion of Title or right of dominion inconsistent with the bailor‟s ownership. must use the thing in moderation.H. it was held that the sale terminated the lessee‟s right to possession. 101 Eng. OFFENSIVE PLEADINGS Title in a Third Partij as a Defence IN Trespass and Trover at Common Law there was some difficulty as to whether Title in a Third Party was a good Defence. 9 under an agreement by which the lessee might return or purchase them at the end of the term.216 Cli.. & 0. If a bailee misappropriates the property. 661. 51 (1867).) 35. 399 (1842). also. and hence by Way of Defence the sheriff could plead the Superior Title of the assignees in bankruptcy.R.Rep. In this situation A. Town of Colebrook y. 55 Iii. or unauthorized use of the thing bailed without adverse claim. Waldo. it was pointed out that since the plaintiff was not in possession he necessarily had to make out his right to immediate possession. the bailor may immediately Elect to treat the bailment as ended and bring trover for its Value. 555. New Hampshire: Edgerly v Emerson. the furniture was seized on Execution. 273. 1 Page 232 of 736 . and before the term had expired the lessee sold them. 02. 2 L.R. the defendant may sometimes effectively take issue as in the case of Leake v. 072.A. 6 sion. But in Trpver the situation may be different where the plaintiff. if by wrongful use or disposal of the goods the bailee has repudiated his obligations. pennsylvania: Taylor v. Grant 00. King. MOrgan. being still in his “order and disposition. Fox. 15 Am-Can. If the v. Loveday. j009 (1908). even though he was not acting under their authority. this is a conversion of the property.App. number. Hasleton V. 8 Watts (Pa. 40 Vt. plaintiff in Trover Is relying on possession.H. and thereby enabled the bail-or to exercise the rights and remedies of a person entitled to possession. See. with a provision that if B failed to pay the money due under the bill. 207 (1851). 46 N. or he may Elect to treat the bailment as continuing and sue for Damages. Bounds. Be fore the assignees could liquidate. in satisfaction of a debt which B owed to other creditors. 4 (1797). but to convey the ownership to A. only to be met with the Defence that Title was. 71 A. 134 Eng. Federal: Ban y. Twaddle.°2 It would be insufficient fully. and not exceed the limits of the bailment. 147 fll. Locke.~° is relying on his right to posses59. 66 (1889). the Defence of Title in a Third Person was obviously not good. 1037 91. in Trover. it is in general necessary that their kind. As Trespass is based on possession. title in a third party may not be pleaded success- Description of Property IN actions for injuring or taking away goods or chattels. or a tort in the Nature of Waste. if he has any right of enjoyment or use.Rep. Kerwin V. 451 (1870). 164. and gave the lessor constructive possession. A should have an immediate right to possession. the effect of the bill being to leave the possession of the furniture in B. 55 Am. 14 Vt. 367 (1842). 17 A. who took under the Execution. in Third Parties—the assignees in bankruptcy. Patterson. sued the defendant-sheriff. Webb v. MerrIll. falling short of conversion. In holding the Defence good. and that the lessor could maintain Trover against both the lessee and his yen-dee59 A bailor may maintain an action of trover against the bailee. or negligent loss. Man. Turner V.) 333 (1834). and value should be stated. Bathatchett.” passed to his assignees in bankruptcy. Maine: Stinclifield v. relying on his bill of sale. 23 N. Winchester v.

Howton Mathias.i&l8). and Case less particularity is required than in Detinue or Replevin. in which the plaintiff seeks to recover the goods themselves. 607. Shea. that he shall have.814 (C.App. 17 Ala.isappro priated or assumed adverse dominion over To constitute a conversion. being possessed of such goods as are described. A Count in ¶rrover Is subject to Demurrer where the time of conversion Is not averred. 191 (1921). In an Allegation for the Conversion of a Note. and that afterwards. n. Schlossburg Willingham. A Treatise on the Law of Conversion. Baxter. 85 So. New Jersey: Glenn v. (va.1809).App. Sowles. 110 (1889).C. The Declaration should allege a Conversion by the defendant to his own use.C. casually lost the same out of his possession.) 192 (1796). 197 Ala. In an action for the Conversion of an automobile. V. Henry v.Cas. it is necessary Page 233 of 736 .App. A complaint for the conversion of money derived from the sale of the plaintiff‟s cotton was held sufficient to describe the money. 02 (1916). Howton v.J. also. Hooton.Cranch 0. Meir. also. 678. V. on a certain day. 45?. 17 Ala. 2 Wash. that Damages are recoverable. 20 N.63 The time should also be alleged.) 314 (1854). Missouri: Fry v. Massachusetts: lasigi v. Pierson 201 SW. 148 Mass. (III) By merely wrongfully Cetaining goods lawfully obtained. 1 (1790).” was held sufficient In Robertson v. Farmers‟ State Guaranty Bank y. in some sense. 258. A Conversion may be: depriving the owner of them. 424 (Tex. not for the act of taking them. though it has been held that the omission to do so will not be fatal. Virginia: Pearpoint v. or dominion over.CJJ. and in this case only. A CONVERSION of the property is the gist of the Action of Trover. of which the actual possession has been lawfully obtained. 5~ (1919).E. contrary to the Rght of the plaintiff. 535. the remedy is Trespass. 302 (i847). Bowers. Mathias. See. the description of an automobile In the complaint as “one automobile.D. Connoss V. 78 So. 10 Mo. i97 A)a. 28 Fed.Smith (N. See.C. ACTJON OF TROVER Maryland: Dietus v. or right to dispose of goods. the property of the plaintiff. 17 N. c.fl. In Trover. 73 So. 2 E. 88 So. 103 217 to allege that the defendant injured or took the plaintiff‟s goods and chattels without showing their number or nature. Fuss.No. 64. (II) By wrongfully assuming the control. In this case. It is sufficient to allege the nature nnd kind of chattels referred to and the quantity or number converted.0. 6~. they came into the possession of the defendant by finding. Fed. though it seems that it is only essential to show a time before suit broughtM It is usual to state that the plaintiff.Civ.Y.65 ALLEGATIONS: (3) THE DEFENDANT‟S WRONGFUL ACT OF CONVERSION 103. on the day and year aforesaid. (I) By wrongfully taking and carrying away goods. and is always essential to support it. Garrison. Henry. Sec.L. a demand and refusal to restore the goods are necessary before bringing the Action. A demand and refusal are not necessary to make a Conversion where the defendant has already done an Act of Conversion. or otherwise DECLARATION IN TROVER—ESSENTIAL The Nature of Conversion. It is for the conversion of the goods by the defendant to his own use. Trespass. IX. §~ 494—497 (Boston 1917). though the statement of the finding is not now material. an Allegation of its Face value is a sufficient Averment of its Value. For the act of taking. The price or value should be stated. 145 (1855). 457. 92 (1016).1860). in accordance with the ancient form. 8 Md. or assuming a dominion over them. 521 (C.

who immediately relinquishes possession. Davis. 151 Eng. may be a conversion in itself. Trover will also lie. 38 A.E.°8 66.65. Raymond. 1061 (1921).) 231 (1865). Boone. A mere seizure of goods by a stranger.C. though actual possession may have been obtained lawfully. also.7‟ (II) By a Wrongful User. in other words. 80 Okla. 855. 8 hI.L. 68.App.ltep. (Mass.Rep.-. Siocum. is of itself a conversion. 1051 (1604). has merely assorted it by a sale.Rev. Trespass and Trover are concurrent remedies for the wrongful taking of goods where there has been a complete carrying away. Law of Pleading and Practice in Civil Actions. 118 N. Seefield. 301 (1886). Illinois: Forth v. and so is the compelling of a party to deliver up goods. 126. 15 Johns. Spaulding. Is properly overruled. 9 (I) By a Wrongful Taking and Carrying Away or Destruction. 111. Salmond. Rev. 20 NW. 732 (1886). 780 (1800). 100 1901). 1153 (1841). 63 Mich. 362 (1854). 548 (1884). Drew v. or not obJanvrin. Willoughby. A 218 General Demurrer to a Petition in an Action for ConversIon which avers facts showing that the plaintiff has a General or Special Property in the chattels alleged to have been converted.-.Elis. 408 (1908). 20 (1802). Wire v. 520. 14 Wend. wherever Trespass will lie for taking goods of the plaintiff wrongfully. 472 (1864).) 201 (1835).Dec. I. 18 N. English: Fouldes v. who has the right of immediate p05session. BenjamIn.L. and the defendant. 78 Bug. 6 Am. 104 P. Montague. 67. Pennsylvania: Moorotiend y. Trover is a concurrent remedy with “Trespass do Rents Asportatis. 25 Am. Philadelphia 1851). Garrison.St. 11 Allen (Mass. Pierce v..Y.H. 410 (5th Am. 17 N. 152 (1895). by a mere seizure without a carrying away. 344. 20 (1809). 4 At. Trover does not lie where the plaintiff has the possession. OFFENSIVE PLEADINGS the goods and deprived the owner of them. 396 (1833). 540. for there is no conversion. Massachusetts: Prescott v. Psi-well. 1 McCord (S.J. the possession is changed in law. 77 Am. Read. 21 Harv. Chiekering v. 82 111. Payne.Q. 20 R.) 428 (1821). Clement v. Adams. A conversion is not necessary to support trespass. Michigan: Daggett v.Again. Gibbons v. New York: Farringtcn v. and carrying them away. 111 Pa. The wrongdoer need not further use or dispose of the goods. 43 (1905). without an actual taking or delivery of possession. New York: Bailey v. Law of Torts. 252. (N. but it is necessary to support Trover. South Carolina: Jones v. 5 1ll. 1190 (1018). but not Trover. as a distress. 21 L. it folloWed by a removal or carrying away or assumption of dominion. 6 Mass. 7° Trover lies to recover the value of goods obtained by the defendant from the plaintiff by fraud. Massachusetts: Bubin v. Partlaud v. though there is no removal of them. 1 (1833). 41 N. Dugan. and that the defendant lass converted the seine to his own use. 67 It has been said that. Wright. will support Trespass.H. 15 111. II. 229 Mass. Huhn. or dominion over them or right of disposing of them. then there is a conversion. This in effect is the specific enforcement of the duty of the fraudulent buyer to return the goods and the corresponding right of the seller to immediate possession.. 53 Mieb. but this is not so. the right of possession thereof at the time of conversIon. 296—308 (London 1907). who had the Legal Title. 14 Pick. Trover will therefore lie where goods are wrongfully seized. Cro. Whalan. 5 A. the wrongful assumption of the property in goods. New Hampshire: Wadleigh v.” Page 234 of 736 . Pursley. e. 35. New Jersey: Glenn v.66 A conversion may take place in the following ways: Ch.69 If. 554.) 431 (1818). III. Replevin will also lie. The collection of a note by one who has no interest in it is a conversion.W. Edgerly v.Dec. 6 Mass. Oakes. 824. 371 (1897). & W. Royce v. 106 Mass. even though there was some asportation. Mass acbusetts: Prescott v. 45 N.T. 2 Saunders. articles by Clark. ed. 307 (1871). 290. Rep. English: Bishop v. Wright. but not otherwise. The Test of Conversion. See.) 856.—The wrongful taking. of the goods of another. (N. or Assumption of Title.

Rep.Y. Briggs -cc Boston & L. Hopper. 1390 (1834). English: Cooper -v.. 172 Eng. Anderson. 7 Johns. 232. 8 Vt.Rep. 460 (1848). 626 (1863). 311 (1858). 10 LILA. 235 (1811). Vermont: Rice v. & P. Bristol v. Chase. Clark.H.App.. Jackson v. 23 Mich. 87 (1857). Reynolds v. has As a rule. Race v. New York: Everett v. Gilpatrick. 1051 (1737). 125 Eng. 54 Micla. 13 Ala. Massachusetts: Gibbs v. (N. taken In Execution. ~I. New Hampshire: Gilmaa V. 15 III. Mead v. at Common Law and tnder the Uniform sales Act. Davies. 1393 (1805). Jackson v. or otherwise disposes of them. Latbrop v. 6 Wend. 7 Minn. 62 (1875).) 416 (1852). (Mass. 109 (1830).) 245 (1907). Badger v. 10 Mass.Y. Morris. Stone. Webber v. 3 Alten (Mass.Rep. 6 East 540. 87 Eng. 390. 472 (1864). It is enough that he disposes of it or assumes to dispose of it. 362 (1854). Walker. Bowlin v. 92 Am. Steiger. 386 (1889). Hurlburt.Dec. The seller must. & W. Shuler. 3 Williston. Willes 50. 22. Boston & W. ed. 332 Page 235 of 736 . Coffin.Rep. 6 East 540. 128 (1813). 4 Taunt 24.Y. 147. 19 NW. 567 (Rev. Mulehay. 23 N. 235 (1811): Illinois: Chickering V. tender to the buyer the return of whatever was paid for the goods. Chandler. to a conversion. Hall v. 474 (1871). Downing. (N. 45 N. 8 Vt. Sec. Chase. 36 N.. Clark. 28 Mich. 66 A. Rechard. Thompson. 477 (1862). 44 Me. 78 Ill. (N.) 575 (1862). Scudder V. there is a conversion. Where a person intnisted with the goods of another wrongfully puts them into the hands of a third person. 302 (1873). 103 ACTION OF TROVER And Trover lies for property lawful]y distrained or English: M‟Combie v.Rep. 15 Ill. 14. Knapp. 540. 22 Am. Massachusetts: Loring v. Illinois: Pollett V.S. English: Samuel v. 2 md. R. 10 Mass. Reineman v.72 The mere taking of an assignment of goods from a person who has no right or authority to dispose of them. 620. A Treatise on the Law of Contracts. Tripp V.Rep. Blake. New York: Everett v. Willis-ton. New York 1948). 532 (1884). 8 M. 212. that the property be appropriated to the use of the wrongdoer. 264 (1811). Where the purchaser of land without right forbids the assignee of a chattel on the premises to remove it. Atlas Shoe Co. Spauli)ing. 102 Eng.) 603. Grouner. Batavia Paper Mfg. Burt. New Hampshire: Drew v.Dec. 151 Eng. 54 Mich. 6 Allen (Mass. Co. HIll. Michigan: Beebe v. Anderson. 14 Allen (Mass. Davis.) 323 (1826). 53 (1843). 418 (1850). as a nile. 1393 (1805). 965 (1884).App. 427 (1847). 551 (1831). Rep. C Car. Monke. Edwards. Massachusetts: Gibbs v. Trover will not lie for a mere omission br nonfeasance against a person 73 been held a conversion. Co. (N. Davies. Davies. 73. Indiana: Lindley v. 27 Mich.Rep. 1153 (1841). 964 (1704) M‟Combie v. Minnesota: Parrnnd v. Alabama: Ainsworth v. Coffin. 10 Cusb.H.) 246. Mlcnigan: Barnum v. 46 (1851). S Cow. B. 6 Mod. 70. 102 Ide. 10?. 102 Eng.. „Willoughby.Dec. 511 (1871). 19 Me. English: M‟Combie v. c. Michigan: Cook v. 128 (1813). Partillo. § 219 tamed at all. Maine: 1370 (New York 1936-1045). 783 (1807). 4 Taunt.Dec. 6 Wend. Nye. Anderson. 500 (1780). 1393 (1805).) 603 (1831). The Law Governing Sales of Goods. Death v. Co. 24. 69 Am. 70 111. 19 NW.Rep. if it Is used or sold without a compliance with the law as to appraisal. 60 Ill.‟4 72. 128 Eng. Cole. Raymond. 83 Am. 6 East 540. Maine: Whipple V. c. or misuses them.H.) 254. Fopides v. 775 (1884). 14 Mass. Vermont: Rice v. 109 (1836).Dec. 102 Eng.69. it is a conversion. 30 Ill. English: Baldwin v. 5 Am. 128 Eng. It is not essentinl. 122. (N. v. 42.Y.) 443.

14 Mass. 114 Ala. 117 Mass. 10 (1864).) 586. 264 (1510). S M.St. 729 (1906). 46 MIch. CroEliz. Farwell. Dolbier. Bristol v. 81 Ill.Y. 08 Bug. (Mass. (N. Alabama: Davis v. 91 Me. The action will lie against a warebouseman with whom rain has been placed merely for storage. New Hampshire: Moses v. Pennsylvania: Etter v. Hurt.(1873). 616 (1879). 6 East 540. but the remedy in such cases is by Assumpsit or Case. Parks. 454 (1874). Coney. 6 AmSt. 106 Eng. M‟Combie V. 5 Burr.” There is flO conversion if the bailee sets up no title or claim in defiance of the owner‟s right. Severin v. English: Mulgrave v. 500 (1780). 11 Am. 40 Vt. English: Ross v. Hawkins v. Edwards v. of course. 529 (1881). 40 Mich. 6 Cow (N. Herndon. (N. 576.St. 9 N. (N. 344. 1 Cow. Walker. (N.. 5 Am. 27 Mieb. 78 Engitep.Rep. Wheel-right. 104.) 849. 28 (1870). 254. 51 (1867). 463 (1873). 1113 at 1120 (1841).Dee. 2825.App.Y.Rep. Waldo. 57 111. 1393 (1805). 107 Mass. 855.Y. 102 (1875).Rep. 11 Cush. 102 Engflep. Illinois: Illinois Cent. 4 N. Hicks v. 132 Eng. 18 Me. 304 (1828). 104 (1809). Thwing. Lyle. Alabama: Bullard v. Maine: Wing v.) 306 (1860). Michigan. Lubbock v. 855. & AId. 851 (1828). In this case the action should be Case or Assumpsit Moses v. Schenck. & W. 710 (1723). Rep. 126 EngSep. or in a differcut direction.Y. 141 (1875). 558 (1886).) 322. 170 Eng. New York: Lockwood v. 12 Pick. King. since. 54 111..Rep. Bailey. 14 fll. Or against the hirer or bailee of a horse for driving it a greater distance than is agreed. 539 (1827). Johnson. Vermont: Rice v. 4 Wend. 13 AimDce. 6 Am. IllinoIs: Johnson v. (Mass. Boston. Lucas v. Massachusetts: Claflin v.Dec. It will also lie against a bank which places a special deposit with its own funds. R. 22 Am.Rep. 539 (1827).C. 93 Eng. Massachusetts: Wheelock v. 238 (1898). Kyle.) 186. 00 W.) 28 (1842). 10 Cush. 304 (1828).) 341 (1863). Bull. 294 (1870). Michigan: Gibbons v. 13 Am. 536 (1793). Richardson v. New York: Lockwood v.H. 475 (1590). (N. 171 Eng. Gibbons v. 704. L.) 117 (1852). Co. Erwin v.Rep. Bank of Monmouth v. H. 19 Ill.. Pcrham v. 146. 461. Maine: Ripley V. 21 So. 453. (Mass. etc. Blake. Norris. and reports and treats OFFENSIVE PLEADINGS was lawfully in the actual possession of goods. 31 Mich. Indianapolis & St. Chapman. 12 Wend.H. 767 (1844).) 757 (1827). 2 Earn. Keith. 857. Vermont: Grant v. 521 (1819). 18 MIch. or neglects to deliverthem.) 416 (1852). Massachusetts: Brown v. and who has wrongfully mixed it with his own. Boston & P.Rep.) 254. 41 AmJJec. Clark. 6 Hill (N.W. The rule is that one tenant in common of goods cannot maintain Trover against his cotenant if the goods remain in the latter‟s possession. 63 Mich. 4 Esp. Johnston v. West Virginia: Carney -cc Itease.Rep. 500 (1780). 382 (1841). 3 Stew. Atkinson. 5 Mass. MIchigan: Fisher v. 29 NW. Pay.) 492 (1826). Rlghtmyer v. 151 Eng. Rep. 251. Nye. V. 130 Eng. Geese. Frank. 8 Vt. Hall v. 7 Johns.Y. Co. Trumbull. Corcoran. Wyld v. 10 Cash. Nyc. Mill!ken. S Pa. It lies against a person who Illegally makes use of property of which he has lawfully obtained the actual custody or possession. 367 (1542). notch v. Getman.App. as against a carrier or other bailee who negligently loses the goods. 23 N. 702. Young. although he refuse to permit the former to participate in the use of the article. Nicholson v.Rep. v. Barclay. 637 (1837).) 70 (1853). 483. Rep.Eep. 1 Stark. DavIes. 14 Mass. 7 Allen (Mass.) 322. the possession of one is the it as a part of its own assets. 3 Hill (N. Keppel. 29 NW. or. (Mass. in law.Y. Weedman.Rep. Bull. 14 Vt. Homer v. Turner v. 15.Va. 55 SE. (Mass. Bowlin v.) 613 (1830). Illinois: 220 who Haddix v. Trover will lie against a carrier or wharfinger who delivers goods to a wrong person by mistake or under a forged order. Euggles v. 157. New Hampshire: Lathrop v. I Str. 30 (1871). (Ala. 109 (1836). 15 Gray (Mass. 521 (1819).Y.H. 27 MI ch. First Nat. Inglis. Dunbar. B. Ogden. 219. 676. 451. IL. 301 (1886). Massachusetts: Dench v. 46 (1851). Clark. 301 (1886). 3 Pick. 414 (1831). English: Stephenson v. 106 Eng. Raymond. knowingly. Devereux v. Lichtenhem v. Or against a carrier of liquor or his servant for an adulteration of it. Pierce v. 4 Bing. 443 (1888). (N. 468 (1897). 4 N. (IlL) 495 (1843). & AId. 344. 3 Bing. Williams v. flevereux V. Page 236 of 736 . 488. Burt. H. Dart. Pickford. 4 Scam. Bowlin v. 143 (1876).) 46 (1830). Norris. 2 El.) 51 (1834). 40 At!. But not for mere negligent loss by carrier. Illinois: Sturges v. Farwell. Hoffman. 64 Am. Barclay. 63 Mich. 138. Whitternore. New York: Packard v. I Cow. or has not exercised a dominion inconsistent with his title. Hawes.Y. 9 Azn. 2 Barn. 415 (1815). 674 (1802). 10 Cash. Co.Dec. 442 (1848). Packard -cc Getman. Walker. flench v. Co. Waterman. Elnstman.

1333 (1799).) 175 (1808). Baylis v. the latter may maintain Trover against him. 13 III. Penasylvania: Browning v. 176 (16th Am. 219. 592 (1831).) 564 (1854). 624 at 627 (1669).Y. ed. Dorman v. 97 AmUec. I East 363. Mumford v. 595 (1885). StrcmpIe. Massachusetts: Weld v. 19 NC.Dec. Of the Forms of Action. Parr v. 66 Am. 1 (Mass. may constitute a conversion.flep.H. Delaney v. 12 Johns.Y. Page 237 of 736 .Y. 582 (1831). 1305 (1787). II. Hoffman.Dec. 3 Mich. Mann. 540. 7 Wend. Mersereau v. English: Wilbrahani v. 52 (1868).) 230. 15 MIch. 143 (1501).) 158. claims sole ownership.Dee. 46 Mich. a Hill (Nt) 586. Oliver.) 449. 99 Eng.) 38 (1862). Springfield 1870). Root.R. Chitty.‟8 In the cases thus far dealt with. It was held that. New Hampshire: Moses v. 102 Pa. North Carolina: Lowthrop V. 13 III. Martyn v. 2 N. 534 (1883). 101 EngRep.Y. 127 Mass. Springfield.Y. 39 Mich. IS Am. McLaughlin -v.Y. Reed. Snow. Burbank v. 2 Wins. Hodgeboom. 108 Pa.) 338. and refuses to 221. Smith. 75. Caniscil. by Perkins. (N. each has the right to sever and take his share. 90 Am. New York: Hawkins v. 7 Wend. 9 Wend. 15 Johns. e.Dec.. (N. Smith v. Pennsylvania: Heller V.—Again. Terry. 252 (1837).Rep.Dec. 133 (1879). 262 (1866). II. Standring. Crooker. Kane. 41 Am. Fiquet v. Dickerson. See. see BenjamIn V. 501 (1828).Y.) 211 (1870).‟9 possible.possession of both. Hyde v. 146. 624 at €27 (1609). Simpson. 4 N. Cronkite. 38 Mich. Sauml. so that the share of each tenant can be determined. 456 (1851): New York: St.C. Saucy. 255 (1790). 24 Am. Stone. 102 Eng. 624 (1878). (N. ed. with Precedents and Forms.) 300 (1815). Holliday v. without showing a demand of the goods and a refusal to restore them. Austin.) 468 (1807).Rep.) 442. his cotenant may maintain Trover for the value of his share) 1 7C. 162 (1832). 85 Eng. 2 Johns. Stremple.Y. by Perkins. Snow. Davis. 54 (1864). 22 Am. like grain. 2 Lans. the mere detention of goods. I P.) 401. (N. C Hill (N. It has also been held that where a tenant in common of an indivisible chattel. or commit an act which is equivalent thereto. 256 (1881).‟° But. S Wend. (N. Mckay.Bep. Dec. 24 Am. Hill. (N. Norton. who is in possessIon of the whole. Michigan: Webb v. Illinois: Benjamin v. English: Wilbraham v. (N. 5 Allen (Mass. 34 (1832). 12 Mieb. it was held that where the common property Is severable in its nature. 85 Eng. (Mass. Knowllys. (N. 2 Gray (Mass. (N. Ripley v. with Precedents aud Forms. Cover.Dec.Y. Treatise on Pleading and Parties to Actions.Dee. Stokes. 413 (1878). New York: Wilson v. 3 Johns. Lush. If one tenant. 470 (1856). 466 (1851). 9 Sec. 139 (1854). Gilbert v.R. 175 (16th Am. 9 N. refuses to allow his cotenant to take his share. c. Of the Forms of Action. „7 -1 Ia Channon v. without right. Smith. (N. 41 Arn. 7 Gray (Mass. Allison. 8 T.Y.Y.) 416 (1852).) 559 (1839). Eufsmith. 21 Pick. 41(h). 99 Mass. Cbitty. And In Needham v. 47(h). 22 Am.) 179 (1818). 658. 9 Cow. 103 (III) By a Wrongful Detention. 328.Dec. 21 Wend. Treatise on Pleading and Parties to Actions.Saund. Colt.) 610 (1839). 86 Am. 304 (1824). if one tenant in common destroy the chattel. this Is equivalent to a conversion. Contra: by Statute. North Carolina: Cole v. Robinson v. Tolan v. 2 Wms.Y. as selling or otherwise disposing of it.Dee.. John v. NorrIs. holding possession thereof. also. and. 767 (3844). McMorris v. Cairnes t Dleeeker. 1876). W. Hyde v. Nowlen v. Stone.) 354. where one tenant In common of chattels so appropriates them to his own use as to render any future enjoyment of them by his eotenarit im ACTION OF TROVER Cli. proof of the wrongful act of the defendant is sufficient to establish a conversion. (N. 756 (1844).

9 Allen (Mass. 19 Am. 6 Am. 202 (1885). Nor where possession was taken under a wrongful claim of ownership. 026 (1669). 90 Mich. 25 Am. Dyball. 19 Am. Courtis v. (Kyc) 84(1829).Rep. Pennsylvania: Wheeler & Wilson Mfg. Moxon.) 294. 14 PIck. 115 Pa. 76 Am. 367 (1842).Dec. 46 111. Clark. Bates v. Life Ins. 322. or by Page 238 of 736 . 135.) 389 (1837). 104 Mass. Connecticut: Thompson v. 2 Wms. 80.Rep. Cane. 123. 50 Mich. BenjamIn.) 109. Level! v. 87 Eng.) 471 (1818). 508 (1843). Lothrop. 10 WeniL (N. Pierce v. 02 III. has the possession of the goods by himself or his agent or servant. Klngman. 517 (1870). Co. 341 (1895). it must be made before the action is brought. Hell. 22 Pick. Cornell. Lovejoy. Massachusetts: Thurston v. 18 Pick. Con-nab v. Boston Water Power Co. 479 (1874).) 216 (1882). Massachusetts Mut. Grove v. Rose. 57 Am. Illinois: Ryan v. 212. 80 Thus. New York: McLean v.H. 89. (Mass.Dec. Baker v.Rep. 233 (1847). 23 Wend. 14 Vt. (N. 710 (1883). 580. Foster & Kiciser. 477 (1878).) 557 (1840).(Mass. Howltt v. VIrginia: Newman t Newsum.) 80. 14 N.) 367 (1841). Newton. Snow.Y. 85 EngRep. is not necessary where goods have been obtained by means of a fraudulent purchase. Forsdiek v. Noble. 1 Stark.Y. 4 Taunt. 12 Am.) 356. 232. 114 (1888). and his detention is relied upon as a conversion. 575 (1887). Rep. 71. 26 Wend. 218 (1870). where the defendant had the rightful custody of the goods in the first instance. Rep. 95 Ore. Massachusetts: Hunt v. See. 45 N. 683 (1882). 376. (Pa) 152 (1798). (Mass. 52 Ill. Estelle. the latter may maintain Trover. RIce.St. 152 Eng. 150. Montgomery.) 18. 303 (1888). 391.Dec. 2 J.) 213 (1821).Rep.Dec.allow his cotenant to hold at all.E. 9 Barn.Saund. 418 (1835). Carter v. 610.Rep. 626. Davis. 319 (1868). 586 (1886). (N. 888. 182 (1872). of Ohio v. 8‟ The demand must be made by the person who is the Owner of the Goods. Walker. 41 Am. Howitt v.H. „9. 171 Eng. A demand and refusal are necessary in all cases where the defendant became. 51 N. 30 Mch. Edwards v. (Mass. v. Lincoln. 39 MIch. 210 (1870).Rep. and a demand and refusal must be shown to support Trover. Blanchard. Mallory Son & Zimmerman Co. Co. 39 Mich. Massachusetts: ChamberlaIn v. New Hampshire: Farley v. Bray. 437 (1816). Gray. Hayes v. Bane v. Sanders. Cole. 78 (1866). 161 (1878). 128 Eng. I LR. 7 Mass. Brant. 643 (1886). 42 III.J.Dec.Rep. Co.) 278. 801. Bond v.Rcp. 42 Ill.Dee. 8 Wend. 1 Taunt. Halle. Cost. Gil-more v. Bray v.W.) 406 (1831). B. 627 (1920). 11 Ala. and the plaintiff cannot show some distinct misuse or misappropriation.A. 34 (1866). 155 Mass. 284 (1829). 38 Am. 9 Cush. Clink OFFENSIVE PLEADINGS sian. Selllck. Detrick. Stevens v. English: Wilbraham v.C.83 Where a demand is necessary.) 215. 193 (1892). Austin.) 549 (1831). also. flee. therefore. 29 N. 11 Mees. Conkllng. 5 Am. 23 Am. and return them when completed. & C. 157 Ill. 34 (1866). (N. Marshall v. Bruncr v. 494. 249 (1866). in the first instance. 42 Ill. 173. (Mass. 41 (1852). A demand.Y. 85 Am. Brittaln. 51 N. 6 Mod. 13 Pick. Gina. Robinson.Y. Add. 23 l‟j. 28 (1810). 121 (1844). 29 Am. 28 NW. Jones v. IllinoIs: Bruaer v. As where a carrier or other bailee wrongfully refuses to deliver goods after a proper demand and payment of any money that may be due. 109 Eng. New Hampshire: Hyde v. 487. nor where the defendant has sold the property and appropriated the proceeds. Hale. also. Alabama: Kyle v. Michigan: Rodgers v. General or Special. 275. ~ and it must be made upon the party who. 339 (1864) Pennsylvania~ Yenger v. 764. Ilooper. 516. 8‟ It need not be in any particular form) since its purpose is possession. Martin.) 171. 19 (1869). UnIon Stockyard & Transit Co.. 445 (1867)..E. 468 (1828): Bryce v.) 11 (1853). Brooks. 700 (1839). Vermont: Riford v. 749 (1864).Dec. Richardson v. (N. 7 Vt. Massachusetts: Vincent v. 41 N. Buelj. Dee. Adams v. Whipple.Dec. Jones. 964 (1705). the mere omission to perform the contract is not in itself a conver (Va. 13 Pick. 18 N.Y. Daniels v. Grant v. (Mass. Shaw. MeQuade. where goods are delivered under a contract. (N. South Carolina: Pettigru v. 885 (1809).C.Y. Fort. 554. Holton. 56 Mich. 187 P. Kentucky: Kennet v. Michigan: Donlin v. 57 P& 365 (1868). South Carolina: Davis v. Pennsylvania: Horsefleld v. Riley v. 2 AmSt. 306. and entitled to the his duly-authorized agent. at the time.Dec. 13 N.English: BaldwIn v. v. or the general controlling power over them. 218 (1879).Dec. Illinois: Gibbs v. 54 Me. (Mass. 52 III. (Mass. Collins. 174 (1859). Cooper v.Marsh. I Metc.H. Dcwell v. i Wend. Duncan. 739 (1829). 78. 545 (1813). 1 Lelgh In other cases. Wise. Maine: Carleton v.W. Newman. v. it is essential for the plaintiff to show that he made a proper demand for the goods and that the defendant refused to deliver them to him. 47 (e). 61 Mich. as to do something with them. & W. King.. 844 (1843). 2 Bailey (S. Michigan: Hake v. 16 Conn. 10 Johns. Ward. 11 Cush. Estelle. New York: Tompkins v. Northern Transp. 33 Am. 103 Mass. 92 Xli.W. wallace. 1 MeCord (S. 8 Atl. 48 Am. 502. 32 Vt. See. Monroe v. Dyball. lawfully possessed of the goods.) 462 (1841). 125 III. 127 Eng. 396 (1883).

Treatise on Pleading and Parties to Actions. 105 ACTION OF TROVER Page 239 of 736 . 15 Atl. 298 (1816). Massachusetts: Delano v. A refusal to deliver a thing upon demand is not of itself a conversion. and the circumstances are such that it is his duty to restore them. Randall. Beers. Livingston.Rep. 654 (1890).85 Where a demand is necessary. 62 Me.Dec. ~Vhe.merely to give an opportunity to restore the goods. Maine: Hagar V. 13 Mass. by Perkins.-e a carrier fails to deliver goods. 23 Am. 083 (1832).Y. Llpscombe..H.B. 88.App. 13 Fla. Winchester. 811 (1701). Rep.) 171. (N. Pugh. 91 (1884). English: Mills v.Dec. 708 (1827). English: Dewell v. Rushworth v. Calvin Brass & Morris v.9° Forms of ActIon.H. Newton. 749 (1864). 1359 (1811). Gilmore r. 391.. 35 (1880).Y. Maine: Hagar v. 58 (1832). New Hampshire: Sargent v. it will not constitute a conversion unless the demand was properly made. Logan Iron Works. 35. e. 1111-nois: Race v. New Hampshire: Baker v. 53 Mich. Coulllard. 85 It must be absolute in its terms. Harvey. Pennsylvania: Harsefield V. & 3. 11 Vt. Green v. 588. 13 Pick. 51 Asn. 156. Robinson. 170 tng. Ilanlon. 776.83 and it must not be excessive. 8 N. (Mass). Philips v. 11 M. New Hampshire: White v. Taylor. 439. (N.) 361 (1812). I Taunt. 4 Hill (N. New York: Brown v. 4 Esp. 504 (1883). 170 Eng. 80. 546 (1828). 266. May v. 179 (16th Am. Edwards v. 457.85 It need not be made on the party Si. 1382 (1801). New York: Storm v. If it distinctly notifies the party who is the claimant and of the goods demanded. (Pa-Sup. 548. Rep. Young. 3 Burr. 295 (1864). Vermont: Yale v. 268 (1793). 87. GIle. Keppe]. ed. I. 674 (1802).) 470 (1863). Saunders. -with Precedents and Forms.Dec. 130 Eng. 114 Eng. Hill v.) 152 (1793). 64 N. Cost. there must be a demand and refusal before bringing Trover. looper.Q. by Perkins. Randall. 7 AlIen (Mass. 194 (1885). 674 (1842). Fish.B. Michigan: Galrin v.Rep. Curtis. II. 103 Eng. c. 532 (1884).App. 4 AlIen (Mass. 323 (1888).) 501 (1870).lIep. 1014 (1808). Camp. Of the Forms of Action. 1328 (1839). Springfield 1876). 16 RI. 2 J3os. 30 Ill. 6 Johns. Massachusetts: Viocent v. 113 Eng. Chandler. Illinois: Sturges V. Houlditch. 198 (1839). with Precedents and Forms. Witlianis. 3 Camp. An unconditional refusal to restore goods will amount to a conversion. 9 222 Sec. Keith. 439 (1873). as just explained. 366. though. 175 (16th Am. Rep. 1 Chitty. Vermont: Knapp V. (Pa. 81 Alich. Plumb. Ball. it is sufficient. Nieoll v. 1 Chitty. II Ili. Massachusetts: Johnson v. S Wend. 220 (1813). 45 NW. 62 Me. 215. & W. V. 6 Atl. 02 Mc. 57 111. 37 Vt. Randall. 1 M. 90. Connecticut: Clark v. for some particular reason. Michigan: Daggett v. nor unless the party refusing has the power to deliver up the proof of facts which constitute a legal Justification or Excuse. 398 (1867).Ct. Davis. & P. Moxon.) 898 (1886). 9 Johns. English: Smith v.Rep. (Sup. 18 N. Best.Y. Taylor v. 9 Allen (Mass. 451. Add. Demary. Springfield 1876). Treatise on Pleading and Parties to Actions. Hale. 83. I Q. Maine: Hagar v. 104 Eng.Abington v. 16 Vt. Rep. 22. Farrar v. 10.H. Of the Ch. 34 Coan. 09 (1888).Rep. 24 Pick.Rep. 1242. ed. New York: Hallenbake v. Blakey v. 126 Eng. 844 (1843).flep. 885 (1809). Griswold v.) 547. 13 East 197. 152 Eng. New York: Mitchell v. Bryant. (N.App.) 294. 243 (1844). 11 Am-Rep. Cornell. I lIsp. Dunn. 24 Am. 345 (1811). 15 Ill. 82.Rep. 6 AtI. 2 N.) 13 (1842). Rollins. Belasco. Douglas. 12 L. Rhode Island: Cross v. flop. 85. A demand in writing left at his house is sufficient. Glennie. Florida: Robinson v. 170 Eng. 103 Pa.) 446 (1862). Barber. 439 (1873). Bayley -V. there must also be a refusaL8° Where there has been a refusal to restore the goods. 11. and open to rebuttal by v. 28 (1870). 170 Eng.) 44 (1810). Hartridge. 8~. 325 (1836). 439 (1873). 106. 97 Eng. (Mass.J. 197 Eng.W. Cook. English: personally. 89. 85 Am. English: 81. goods. 4 Bing. Severin v. but merely presumptive evidence of a conversion. Leman V. 102. and not qualified with conditions.Rep. 351 (1839).

And the Jury might. 125 Ill. Kellogg s‟. 2 M. 775 (1917). 632.ALLEGATIONS: (4) TIlE DAMAGES The Declaration must state the Damages which are the legal and natural consequence of the Conversion and the amount laid should cover the value of the goods and other actual Damages. 92. W.C. Leoncmi v. in Mitigation of Damages. See. One in the possession of property may always claim a lien upon It. and the statement therefore should be large enough to cover the actual Damages inflicted.App. 6 N. Life Ins. Darwin. depending on whether they are General or Special. 775 (1917). 1382 (1801). Dec. or that it has been restored to him and accepted. °„ but the plaintiff is en-tilled to include also any other loss that is its legal and naturai consequence. 990. in such a case.W. applicable to Trover. 15 Pick.A. 464. Chamber~ lain. 63 Wis. 13 N. XII.. (Mass. Pitts & Son Co. & P. 91 Iowa 660. 13 N. 91. North Carolina: Dowd v. 109 (1842). c. Kansas: Simpson v. v. as where the party has a lien on them. 20 GtApp.E. 143. 470. 592 (1885). Burley. Co. 1. clause. Massachusetts: Stone V. 171 (1886). Ball. H. 448 (1866). v. DECLARATION IN TROVER—ESSENTIAL 223 104.R. that the plaintiff has himself recovered the property. Illinois: Hayes v. 92 SE. also. 567 (1829). on the Trial or Inquisition of Damages. Post. as to Damages in this action. 13 N. and the Allegation of the Declaration must still be made. 5G Page 240 of 736 . Smith. An Allegation that the Conversion was “to the great Damage” of the plaintiff. Hence. 2 Bos. 108 The general rule that the plaintiff cannot recover a larger amount than he alleges to be due in his Declaration is. 130. 225.H. and thereafter every action became in form a Special Action on the Case. 12 8. if they were laid in the Declaration. Codman. 78. if a plaintiff sues. 197 (1880). PRACTICE ACTS AND RULES the value of the goods. Mccorkell. though this. see Iowa: Hartley State Bank v. Alexander. 289.W. 150 Eng. 20 Ga. THE amount of Damages which is recoverable in this action is usually measured by the value of the goods at the time of conversion. It would seem.°3 As in other actions. 261 (1891). Bank of Shiloh.Rep. NC. 29 III. in an actions of Trover or Trespass de Bonis Asportatis. Berry. 1 LEA. New Hamp shire: Kingsbury-v. wisconsin: Benjamin Wagon & Car II. as Law Actions. A Treatise on the Law of Conversion. 28 Tot. § 693 (Boston 1917). (1888). 23 III. II Pac. 676 (1836). by authority of a statute. Clark v. should be stated. North Carolina: Waller v. 35 Kan.) 297 (1834).94 give Damages in the nature of interest over and above the value of the goods at the time of the conversion or seizure. Bowers.S. Massachusetts Mut. The reason for the refusal. the Form of Laying Damages will vary. H. 18 Am. under the some averment was certainly necessary as a basis In general. English: Mills v. 303 (1888). Bowling. & W. but with a prayer that the defendant appear and answer. could only be because the statement bad been made elsewhere than In the ad damnun. 92 SE. Texas: Ramsey v. Texas: Blankenship v. STATUS UNDER MODERN CODES. Bank. 72 Tex. Wadsworth. without any specific ad thtmnitm clause in the Declaration. of computation. The plaintiff might recover Special Damages in Trover. Bank of Shiloh. 322. Merchants‟ Etch. that the party demanding it is the real owner. 12 L. or the proper agent to receive it.92 there may be a right to detain the goods. 23 N. of The defendant may lessen the amount of the recovery by showing. the intrinsic differences between the actions as 105. See. 18 N. but this is matter of Defense. R. has been held sufficient [Mattlngly v. as any prudent man would do. or he may have the right to satisfy himself. 618 (1860)]. with interest. 437 (1862). the amount of Damages asked for will be construed to be the alleged value of the property sued for.E. 12 S. 825 (1891). if not too remote. I. Pitts & Son Co.Y. of course. 126 Eng. Holly. v. also.Rep. While the Codes and Practice Acts have taken the labels from the various Common OF COURT known to the Common Law were not abolished. 194. Co. 143. In Trover.

is clear. Friclc Co. 13 S. which provides for an order for the arrest of a defendant.00 and the Court at General Term entered Judgment for this amount. yet actions vary in their nature. by taking and disposing of his property. 106. 3 & 4 Win. in which he has a contingent or prospective interest. 465 (1880). 308. in the nature of Trover or Trespass. 564 (1872). also. IV. the substantial Differences remain as before. Yale v. 94. upon the ground that the defendant has so conducted himself in the exercise of a legal right in respect to another‟s property.Y. the value of the property. OFFENSIVE PLEADINGS 224 Code. Wheeler. other than a woman. THE ACTION OF EJECTMENT‟ CHAPTER 10 See. upon the ground that the defendant has wrongfully converted property to the possession of which the plaintiff was entitled at the time of the conversion. Vermont: Hart v. 463 (1891). Stirling v. Saunders. 22 N. as wi action to recover for the consequential injury resulting from an improper interference with the property of another. of course. sold and converted the goods to his own use. Sectioa 6101 of the New York Civil Practice Law and Rules (1963). and to find a Verdict for the plaintiff for that value. 43 N. SeMen.Rep. The Jury fixed the value of the property at $850. At the Trial. 3. Chrisler.E. 492. declared: “Although the Code [of Procedure] has abolished °° all distinction be95. THE Status of the Action of Trover under the Modern Law was clearly stated a few years after the adoption of the New York Code in 1848. See. Hence.E. for the Ch. and the same rule of Damages applies. while in an action in which the plaintiff recovers. and there are intrinsic differences between them which no law can abolish. subject to the opinion of the Court. Scope of the Action. 1whcre there Is a cause of tween the mere Forms of Action. as unnecessarily and improperly to reduce the value of a lien. the damages must. 83 NW. 645. Massachusetts: Dahill v. 16 Vt. and every Action is now in Form a Special Action on the Case.Rep.. 42 Am. 54 Am. when the injury consisted of improper interference with the property of another. 496. 5 N. S Am. the Court instructed the Jury to assess the value of the goods. The same proof. See.” action to recover damages for the conversion of personal property”. a mortgagee of chattels which had been sold under an execution against the mortgagor.°~ In that case. 778 (1900). Kofflor & Reppy ComLaw PIdg. therefore.93. the proper measure of Damages still is. is required in each of these Two Kinds of Actions. 230. in substance or in principle. 107 WIs. AssetC?‟. depend upon the extent to which that lien has been unpaired. 18 Md. the following cases: Georgia: Morton v. The advantage of an Action of Trover as opposed to an Action of Indebitatus Assumpsit for the col lection of a debt. Skinner. 9 conversion of property. and a right to imprisonment upon Execution. which the plaintiff could only enforce at some subsequent day. It is impossible to make an action for a direct aggression upon the plaintiff‟s rights. the same thing. Page 241 of 736 . with power to dismiss the Complaint. 140 Mass.Y. in the case of Goulet v. In reversing the Judgment and granting a New Trial. whereupon the defendant appealed. also. and that plaintiff was entitled to recover the vaiue of the goods. if at afl. on the theory that the defendant had taken. 42. the action will still be dismissed. Wisconsin: Cernaban v. Booker. as before the Code. 225 (1860). r. It gives or gave a right to hold to bait during the pendency of the action.S—9 280 (1883). 500 (1844). Salt Springs National Bank v. for which the remedy was Case. as a provisional remedy. 138. 16 Vt. 87 Ga. H.Dec. The mere Formal Differences between such Actions are abolished. 468 (1862). Garritee. 29. 73 Statutes at Large 94. In ad dition to the usual resort to the property of the defendant. the plaintiff. brought the action. in an action in which the plaintiff establishes a right to recover. 243 (1844).

Dublin 1844). Declaration in Ejectment—Essential Allegations: (1) In General. merely Nominal Damages are given for the dispossession in the Action of Ejectnient proper. Interest or Possession. c. 3 Blnelcstone. I. A Treatise on the Action of Ejectment (Chicago 1802). Cole. Ejectwent and Adverse Enjoyment (Albany 1870). In the absence of a Statutory Provision to the contrary. c. Interest or Possession. The Law and Practice in Ejectment (London 1557). &e. In order that the Action may be maintained: (I) The Plaintiff must have the right to possession at the time the Action commenced. Forms of Declaration and Common Consent Rule. The Term of Years. Ejectment—Distinguishecj From and Concurrent ~vith Other Actions. Ancient and Modern. must be recovered at Common Law in a separate Action of Trespass for Mesne Profits.. Ejectment. The Action of Ejeetment lies to recover possession of Real Property adversely held by the defendant.107. The Mesne Profits. ed. 111. Ejectnient. (2) The Plaintiff‟s Right. In (4) general. New York 1846). Title. Declaration in Trespass for Mesne Profits—Essential Allegations: (1) In General. the Titles of Ecclesiastical Persons. Paul 1905). Quare Impedit. Including Ejectment (2d ed. The Law and Practice Relating to Summary Proceedings to Recover Possession of Lands in Certain Cases (New York 1545). prior possession is sufficient as against a mere intruder or trespasser. of the Legal Remedy by Ejeetment. Ejectment. [and the Rights of the Terinor] 4. II. S. Ejoctment. or by some similar remedy. 116. Civil Procedure at Page 242 of 736 . The Law and l‟raetiee of Ejeetments (London 1751). Art. 113. by Ballantine. Declaration in Ejectment—Esserjtjal Allegations: (2) The Plaintiff‟s Right. Lectures Upon the Principles and Practice of the Action of Ejectment in Maryland (Annapolis 1841). c. Practice Acts and Rules of Court. The Damages. Declaration in Trespass for Mesne Profits—Essential Allegations: Declaration in Trespass for Mesne Profits—Essential Allegations: (2) The Ouster or Ejectment. Sedgwick and Wait. Gilbert. 118. A Treatise oa the Principles and Practices of the Action of Ejectmcnt and Statutory Substitutes (Olden-go 1905). extended to the situation where a trespasser Actions and Ejectments (London 1837). Containing an Abridgment of the Law Concerning the Patronages of Churches. (II) The plaintiff must have been dispossessed or ousted. Wareing. 2 Pollock and Maitland. see: Treatises: Malloy. 108. land. Treatise on Remedy by Ejeetment (Albany 1876). (III) And the defendant must be in the adverse and illegal possession of the land. 199 (1st Am.. at the time the Action is brought. I‟hulatlelphia 2772). Mesne Proilts and other Damages may be. history anti development of the Action of Ejectment. 112. Longfield. 110. 109. Treatise on the Principles and Practice of the Action of Ejectmeat (Ed. Martin. New York 1886). V. Washingto~i. 10 THE Action of Ejectment is a Form of the Action of Trespass Qwtre Ckru-sum Fregit. in Ireland. SCOPE OP THE ACTION 106. Adams. D. In many Jurisdictions. c. Stephen. The History. Commentaries on the Laws of Eng. Title. (2d ed. The Practice of the Plea Side 0f the Court of Exchequer. Principles and Practice. Tyler.. p. History of English Law. ed. New York 1800. 1. and Precedents of Pleadings. A Treatise on the Trial of Title to Land. The Practice of the Court ~f Common Pleas at Lancaster In Personal 225 OFFENSIVE PLEADINGS Ch. by Tillinghast. and in some. actual or constructive. Civil Procedure at Common Law. 140 (St. &c. 114. Declaration in Ejectment—Essential Allegations: (3) The Wrongful Ouster or Dispossession. in Ireland. 117. C. Newell. Martin. and the Resulting Action for Mesne Profits (Amer. in the Superior Courts. A Treatise on the Action of Ejectment. Tyler. by Tyler. (London 1737). Declaration in Trespass for Mesne Profits—Essential Allegations: The Judgment in Ejectment. Declaration in Ejeetinent—Essential Allegations: (4) The Damages. during the defendant‟s possession. in Personal Actions and E3ectments (Dublin 184S). Dorsey. §~ 165—171. Yeo and Billing. IV. 115. ed. Runnington. Status of Ejectment 1. and Trespass for Mesne Profits Under Modern Codes. 1593). 53 (3d Am. on the origin. London 1820). Principles of Pleading in Civil Actions. Dyett. must be recovered in the Action of Ejectment proper. by Statute. Warvelle. 105— 112 (Cambridge 1595).

112 (2d cii. in Ejectment. under which. Mandatory Injunction to Compel Removal of Encroachments by Adjoining Landowners. In legal theory. 2 Holdsworth. pp.Rev. the distinctions between which were refined. “The Common Law furnished an endless number of Real Writs to determine the rights of property in. 214—217. Observer. The Development of the Common Law Forms of Action. 2. The Development of the Common Law Forms or Action. Articles. c. 36 Yale L. 56 L. at the Common Law.24 1192.L. this New Action of Trespass for Ejectment & Keigwin. c. Ejectwent.5 which.S. Ejectment. for example. 173—178 (Boston 1913). The Action of Ejectmcnt. Development of Ejectnient from the Writ of Ejectio Firmae. Lecture XIX.. or the holder of a non-freehold estate. IT. were highly 227 dilatory. 446. Handbook on Common Law Pleading.B. In Personal Actions. 279 (1926). as the Writ of Novel Disseisin. 3 S-Ct. a freehold estate. Maitland. 56 L. or possession of. Short History of English Law. Note IV. Encroachment Below Ground or Well Above the Surface—Is Ejectment an Adequate Remedy? 27 Yale L. the year in which it was held that the tenant could recover the Term as well as Damages. Ejeetio Firznae. I. Ejectroent for Encroachment on Land Above the Surface. 268. 510 (1927). might recover only Damages for the wrongful ouster. Equitable Eject-went. 12 A. 181 (1945). Pt. History of English Law. Instructions in Ejectment on Rule that Plaintiff Must Recover on Strength of Own Title. Plueknett. Injuries to Realty. 307. 155—Ill (2d ed. 259. with the power in the Court to restore the possession to the plaintiff as part of the Judgment” 3. But at this point. 3 such. R. Indianapolis 1932).Forum 170 (1949). 3 Id. he was. Comments: Ejectment—Law and Practice of. 359 (St.J. 479 (1940). LW. 159 ALIt. c.L. Patton. 354 (4th ed. 170—191 (30 5. if carefully selected and patiently pursued.Common Law.R. e.Q. to wit. 992 (1853).6 In the fifty to a hundred years after 1499. Bk.. Boston 1931). flargreaves. 57 (Cambridge 1848). I. 4. 26 Col. 292. takes and keeps the land.L. 28 A. II. note (1939). 11ev. 436 (1926). c. he was still required to invoke one of the Ancient Real Actions. Wire The Plea of Ius Tertil. 28 Mich. 195. Sec. The highest technical skill and learning were requisite to comprehend and define the nature and purposes of these various writs. 27 LEd. See Pbilbrick. Chicago 1848). 471 (1840). the Action known as Trespass for Ejectment was developed. but he could not regain possession of the land.R. R.L. May a Tenant Fiend an Acquired Title in a Suit by a Landlord2 15 CalitL. by Ballantine. some sixty in number. as we have pointed out in an earlier chapter. nor could he.Rev. a non-freehold estate was any estate Jess than a life estate. II 63— „75. 24 Iowa L. Lectures on Legal History. Rev. 646 (1945). 1949 Ill.2 At Common Law estates in land Were of two kinds—freehold and non-freehold estates. however. arc discussed in Chapter 2. The Rise of Ejoctment. L. in that Form of Action. it should be pointed out that this Newly Developed Remedy was available only to the holder of a Non-freehold Estate. I. 41 L. A freehold estate was a life estate or any estate above a life estate. IT. there were never many writs at Common & Page 243 of 736 . afforded a number of remedies in the Form of some one of the Ancient Real Actions. declared: “Ejeetment Is In its essentiat character an Action of Trespass. 265 (1918). recover Hohdsworth. To provide an adequate remedy for the holder of a Non-freehold Estate. London 1948). II.Q. The Common Law Actions. A Concise History of the Coninion Law. 7 Id. 369 (1906). Co.Rev. c.. Chapter 2.L. 100 U. Remedy of Tenant Against Stranger Wrongfully Interfering with his Possession.J. Paul 1923). If the plaintiff desired to try Title to the land in question. if ousted. Ames. Terminology and Title in Ejectrneot— A Reply. CunnIngham v. I. c. V. 581 (4th ed. 609.Rev. however. 106 226 ACTION OF EJEOTMENT Damages for Mesne Profits‟—the subsequent rents and profits between the date of the original ouster and the date of the recovery of possession. Pleading—Prayer for Equitable Belief in Action of Ejectment. 376 (1940). expensive and unduly technical. who was regarded as having only a mere Chattel interest and not an interest in Real Estate. c. The Study of Law. 20 Leg. Paul 1905). Jenks. a tenant for years. Annotations: Statutory Remedy of Forcible Entry anti Detainer as Exclusive Remedy of Occupant Dispossessed Without Legal Process. c. Torminology and Title In Fljeetment. 139 (1925).L. if the owner of a freehold estate was ousted from possession. at 1197 (1950). 123 (2d ed. it was not available to vindicate the right of one who was asserting Title to a freehold interest in land.Q. Walsh. Macon & B. Ejectment—Title in a Stranger. 223 (Cambridge 1913). 154 A. 1. in which Miller.2d 679 (1953). Morgan.. § 76. Cases in Common Law Pleading. St. Eject-went. Shipman. Seisin and Possession as the Basis of Legal Title. Hutchins. c. abstruse and often scarcely perceptible. VIII. Effect of Failure to Plead Statute of Limitations as an Affirmative Defense tin an Action of Ejectmentj. he might recover possession and establish his Right or Title The lessee of a term. Ejectment and the Real Actions. 299. 184 (1929). 19 Flax-v. Xfl.Rev. Rochester 1934).Rev. The Forms of Action. for an account of the Ancient Real Actions. ~- These Actions. A History of Anglo-American Law. Land Titles (Kansas City 1938).

were brought into opposition and comparison. Principles and Practice Governing the Trial of Title to Land. recruited two friends or collaborators. B. but non-freehold owners. without violating the Common-Law theory that the remedy was available solely for the use of Law. donor or lessor. and their heirs. who then made an actual Entry upon the land. in effect avoided the necessity of instituting a Real Action. Institutes of Common and Statute Law. class or nature. 19. through the suit of his tenant.—Where A. and the resources for delay so numerous. note 6 (2d ed. And by this process the landlord. the merits of B‟s Title under A. then handed an actual lease of the premises to A. Not only were the distinctions between Real Writs very technical. in the beginning. can be reserved. C. thereby rendering the proceeding of no avail. might bring an Action of Trespass for Ejectment. in the Form of the Real Actions. began to seek ways and means whereby the New Remedy—now known as Ejectment—and open only to the holders of non—freehold estates. This very scarcity made personal actions attractive in early times. The scheme devised worked substantially as follows. 4 A and B. Page 244 of 736 . wherein there was no fiction whatever involved. actually leased I3lackacre to B. in Legal Contemplation. against C. Where the Law supplied a remedy to a given group of litigants. usually defended by asserting a Title paramount to that of A. the pleader being seldom at a loss to know which Writ to choose. and suck rJght of entry cannot be assigned lawsuits. as every lease of real estate by an owner not in possession was bound to result in some form of action. the lessor. while in Real Actions the most experienced practitioner. and was thereafter disseised. the New Action of Trespass for Eiectment was created.‟0 or promoting ~ 4 Minor. § 52.7 for the recovery of Possession. tedious and costly. e. p. ~ 2. like the owners of freehold estates. but OFFENSIVE PLEADINGS Grounded on True Facts. for interference with B‟s possession. II. 229 Cli. —It was soon discovered that the same result could be achieved by resort to a fictitious proceeding which. . in substance. When. amounted to trying Title. or re-entry. the real disseisor. The Action 0f Ejeetment. who. B. “It Is a general rule. there naturally followed a period of time during which the new remedy remained unavailable to the holders of freehold estates. who took actual possession. The Common Law believed in an economy of remedies. that the landlords. that the Judgment when obtained was often a tardy and inadequate remedy. Thus. that no right of entry. 390 (Richmond 1591—1895). where there was a resort to fiction. L. subsequently to be spoken of as the Entry. frequently sued out a Real Writ of the wrong degree. might be made available to the holders of freehold estates. the tenant. Cases In Common Law Pleading. This end was to be accomplished by working out a scheme whereby the Action of Trespass Quare Ejectione F‟irmae—Trespass for Ejectment—could be adapted to the use of the owners of freehold estates without violating the fundamental theory of the action —that it was available only to the owners of non-freehold interests in land. Division 111. already had an Adequate Remedy. and C‟ s title. 3 (New York. Rochester 1934). The Judgment which followed necessarily determined who had the true Title. a freeholder. exercising the utmost care. 10 (I) Where the Requisite Conditions to Support Trespass Quare Ejectione Firmae were Actual. but wherein the steps upon which the fiction was grounded were actually true in the proceedings under them were so inconveniently long. Ac. now being on the land in question. than the feeffer. 7. however. The Common Law Actions. 4 desiring to try Title to land not previously under lease.became such an effective instrument for trying the Right of Possession which. or given to any other person. The Landlord. second. and the selection of the proper writ a delicate task.” Sedgwick and Wait. And it was the ensuing effort which ushered on to the stage of procedural legal history the law‟s most famous fiction—the Fictitious Proceeding in Ejectment—which did not reach full fruition except as an incident of passing through thrce stages of development: First. therefore. the disseisor. Such Entry was required in order to avoid being charged with the common-law crime known as maintenance. 1882). was based on a true state of facts. 9 (II) Where the Requisite Conditions to Support Trespass Quare Ejectione Firmae were Fictitious. they were generally limited to that remedy.4 and B. I. and frequently Imperilling the demandant‟s right to the proper writ or remedy. L See Keigwln.. c. as an incident of B‟s claim to a right of possession.

As previously observed. which had been matured by the experience of centuries. the Casual Ejector. after which he surrendered his lease to the landlord. every element of the case was of actual occurrence. Sec. which he proceeded to do. and have consented to try Titles to the freehold in a Personal Action. 1. And! thus. no title could be tried without also trying possession. and the oppression of the poor. all of which activity was unknown to the Actual Tenant of the premises.hereinafter to be known as the Lessee. to eject A. Z. fact. so that Judgment was given in favor of the Fictitious Lessee and plaintiff. and third. Thus. and A was placed in possession. the Casual Ejector did not defend. so far as the Record went. the official line-up became A. without violating the theory that the Action of Trespass for Ejectment was available only to the owner of a non-freehold estate. as in Assumpsit and Trover. therefore. This procedure was made workable by the fact that the Courts. 341]. by this process. and the weak oppressed. a Writ of Execution issued against Z. whereby right might be trodden down. eager to escape from the old Real Actions. the holder of a non-freehold or leasehold estate. v. The student should observe at this point that so far there has been no feigning of the facts. 7. might be instituted in either King‟s Bench or Exchequer.8 These discussed: or tra:nsferred to another ~Litt. his disseisor. 5 (New York 1882). of the Entry. the landlord. under the scheme. thereafter on the land he executed an actual Lease to a real lessee. the subversion of justice. al-. C. A. 106 ACTION OF EJECTMENT though not a party to the action) was.1‟ In referring to this very point. might now be brought and determined in a purely Personal Action. As B put up no Defense. along about the year 1640. § XII. The plaintiff made a bona tide Entry into the land under dispute. to guard by all possible means against maintenses. pretended titles might be granted to great men. overlooked the falsehood involved. This principle had its origin in the policy of the Ancient Law. There was also the additional advantage that Ejectment being a Personal Action. Lease. after which he was actually ejected. as Lord Coke remarks. 11. and the nominal plaintiff (the landlord was the real plaintiff. the lessee. A Summary of the Law and PractIce of Real Actions. once it was realized that Ejectment was an efficient instrument for trying the right of possession. Sedgwick 229 (III) Where the Requisite Conditions to Support Trespass Quare Ejectione Fh‟ mae were all Assumed to be True. which began in the reign of Henry VIII (1509—1547) ultimately resulted in the obsolescence of the Real Actions. the fictitious lessee. ex dem. whereas the old Real Actions for trying Title could only be brought in the Court of Common Pleas. in the final analysis. Sedgwick and Wait aptly declared: “The history of procedure nowhere presents a more curious fact than that the owners of the soil [freeholders] should have suddenly relinquished a system of remedies [the Ancient Real Actions].” 12 This rapid change in procedure. the landlord. instituted a suit against B. it finally became clear that it was a useless formality to make an actual Entry. (lessee of) l~. Page 245 of 736 . but were aU Fictitious: (A) In GeneraL—After it was discovered that the New Action could be utilized by the freeholders through the use and Wait. the actual tenant. hereinafter to be known as the Casual Ejector. Introduction. who promptly sued out a Writ of Execution. or shortly after the close of Queen Elizabeth‟s Reign (1558—1603). with the result that there was small risk of a disastrous variance. with the same results of a Real Action achieved in a simple Action of Trespass. Lease and Ouster. the landowner was able to try Title to the land in question. who immediately took possession. f. at least so far as possession was involved. It is not surprising. the pleading in Ejectment was genera]. Thus. where the the fiction were assumed to three situations will now be facts supporting be true. And. and that. For if me‟~ were allowed to grant before they obtain possession. originally devised to protect the precarious estates of the inferior tenantry. and then instructed B. as A. Thereafter. B. now also just coming into vogue. and Ouster by the Casual Ejector. to find that both Court and Counsel eagerly availed themselves of the loophole thus discovered by means of which questions concerning Titles to land which ordinarily could be raised only in some one of the numerous and technical Real Actions. 24 (Boston 1824). so the practice grew up that these steps might be eliminated by merely alleging a Fictitious Entry. Lease and Ouster. by the rich and powerful. Judgment was entered for A. the tenant selected by L. Principles and Practices Governing the Trial of Title to Lana.” Stearns. p.

Lease and Ouster. Page 6. who up to now had heard nothing of this suit. until the adverse actual occupant— the Actual Tenant. the actual tenant. raucous and determined tones that the Courts decided to do something about it What they did was to make a Rule of Court that no Execution should issue where the Ejector was a stranger. (B) The Common Consent Rula—It is not difficult to imagine what Z. the Tract of Land. Ch. Z—was notified of the pendency of the action. Z. and the Casual Ejector B .under which the lessee was placed in possession. which was the objective of the fiction and which thus made available to the owner of a freehold estate a remedy which in legal theory was available only to the holder of a non-freehold estate. the lineup of the parties reads as follows: A ex dem. Title to Which Page 246 of 736 . that the Actual Tenant was advised by the Court that he might be permitted to defend. and offered an opportunity. if he agreed to enter into the Common Consent Rule. said when thus confronted with the Execution. the Actual Tenant. which involved an admission of the Entry. thus leaving the only remaining issue one of title. 1882). c.. Z. to appear and defend the action in place of the Casual Ejector. Now. notifying him that he had been sued. the Actual Tenant. and as a sort of condition precedent to such substitution of the Actual Tenant. Id. This end was accomplished through the device of a note or letter from the Casual Ejector to the Actual Tenant. is in Issue b‟y the Above Chart Blackacre. he should appear and ask to be 12. if he so desired. (lessee) of L v. The whole process is set forth in the chart which appears below: CHART OF THE FICTITIOUS PRocEEnIr~g IN EJEcnlrrqr Lessee The Fictitious The Landlord and ills Two Collaborators. being dispossessed by the Sheriff. and that if he desired to defend. I. 10 And it was at this moment. or not the Actual Tenant. OFFENSIVE PLEADINGS substituted as the defendant in place of the Casual Ejector. And what he and other Z‟s in a similar position said was expressed in such loud. § 230 S (New York.

‟1 Ejectment may be brought to recover SINCE the abolition of the Ancient Real Actions. 499—501 (1864).FROM the Chart as set forth above the student may derive an understanding of how take advantage of a remedy which. from the Chart the student may understand the basis of the Common Law rule that a Judgment in one Action of Ejectment was never a Bar to recovery in another Action. Ibid. 6 (1822).L. who declared: “But we have seen. 67 N. in reality. the landlord. is L. the lineup of the parties stood as follows: A. Page 247 of 736 . This characteristic. except the single circumstance that it made it possible for the plaintiff to regain possession of his land. 51 A. cx dent. 123 note 1 (2nd ed. 509. 479. Ejectment. It is the name now applied to the action by which the plaintiff asserts his right to possession of land. 7 N. A. Rochester. Personal property and in general incorporeal hereditaments may not be recovered. And in an Action of Ejeetment at Common Law the title is not directly in issue.” 14 It is no 13. Obviously.” the rule has been explained by Sawyer. 26 ~ Calif. under this setup. J. it has never assumed the character of a Real Action. 15. II. 260. who. The action is. Schmidt. Commentaries on the Laws of England. The Forms of Action. Johnson v. therefore. He may also clearly see the meaning of the phrase “the lessor of the plaintiff. as previously explained. L V. resulting either from absolute ownership or some lesser proprietary right. 18 For What Property Will Ejectment Lie to Recover? IN consequence. Robb. a glance at the Chart will reveal that after the Fiction in Ejectment had been invoked. as the action is limited to property the possession of which may be delivered by the sheriff. Morris. Den en dem. surprise. It has sometimes been classified as a Mixed Action. I. In the case of Caperton v. Oxford. Keigwin. that the nile in all cases requires that the matter tried must be directly. the lessor of the nominal plaintiff. 3.L. 199 (7th ed. or Ouster. whereby he is entitled to enter into immediate possession of some interest in land. growing crops and the like. In the third place.” so often Certa4n Aspects of Ejeetment as Explained the holder of a freehold estate was able to See.” ACTION OF EJEOTMENT The Classification of Ejectment THE Action of Ejectment has been variously classified. tacked on long after the invention of Ejectment and resulting from extrinsic causes and an originally unforeseen development. XI. Ejectment has become the chief means of trying Title to lands or tenements and recovering possession thereof. is the true plaintiff. 1934). but it does not possess the characteristics of the CommonLaw Mixed Action. therefore. hence the Judgment under the rule was not a bar. While it was developed as and became a substitute for the Ancient Real Actions. Of Dispossession.J. in order that the judgment shall be a Bar. C.‟5 Ejeetment Asserts Right of Possession ol‟ LaS property. in legal Theory. is. Thus. French y. Cases In Common Law Pleading. was available only to the holder of a non-freehold estate. Bk. Z. as for lands. as Professor Keigwin aptly observes was “an adventitious and almost accidental incident of the action.. nor could the determination of the title be used as a matter of estoppel. 106 231 met with in the cases on property. 1775). see 3 Blackstone. and not merely collaterally in issue. 16 but not things which are not tangible real lands or things attached to the land so as to partake of the nature of realty. On the nature and limits of Ejectment. limited by definition to the recovery of corporeal real property. Ejectment will only lie for the recovery of possession of real property. or buildings annexed to land. such as timber. that most modem authorities declare that Ejectment is still a Personal Action. The Common Law Actions.

Bep. Treatise on Pleading and Parties to Actions with Precedents and Forms. Smith. and of which the sheriff could deliver actual possession. 2 Yeates (Pa. (N. 521 (1862). 163.Chip. Co. 488 (1840). OFFENSIVE PLEADINGS Ch.22 The plaintiff must have not only such 20.A.) 920 (1900). under an agreement to use the same as a common source of power. 635.. as we have observed. Frontier Telephone Co. 956 (1902). and the interdst is tangible.Y. e. (N. Lewis. & 0.Y. 109 (1875). New Jersey: Whiter. Butcher v. by Perkins. or other incorporeal hereditaments. so that Possession can be delivered. Pennsylvania: Turner v. 78 so. or for a term of years. 505. 206 (7th ed. Pennsylvania: Black‟s Lessee v. 17. Dec.Y. Butler v.B. 3 Blaekstone. 10 upon which an entry in point of fact might be made. 137 (1842). his heirs and assigns forever.E. 716. 11 LEA. 716.. 15 Cons. Of the Forms of Action. Otis v. 199 (1854). engine and stack are erected upon the land of a person at the joint expense of himself and another. 486. The owner of the soil may maintain Ejeetment against one who appropriates a part of a highway to his own use. 133 Eng.) 298 (1812). 79 N. to recover property which. or Ouster of Chattels Real. may maintain the action. 78 So. Walters c. Thus.) 298 (1812).L. is not tangible. 156 N. the interest thus created is in the nature of real estate. 43 Pa.S. the plaintiff must allege and prove a Legal Title in himself which gives him the right to immediate possession. for which Ejectnicnt will lie in the case of tin ouster. 23 Pa. 505. Whittlesey.) 331 (1708). Ilepburne. or a water course. 79 N. 486. 202. Page 248 of 736 . 307 (1878). New York: Jackson ex 4cm. Leonard. may maintain Ejectment. where a grantor in a Deed reserved to himself. florida: Walters v. Hcpburne. 137 (1842). however. as rent. 277 (1913). 232 (1879). Bay County v. (N. 519. any person having the right of entry upon land. 33 Mich. Lewis.) 331 (1798). The action lies for a room or chamber without land. Nichols v. 18. And one entitled to the right of mining on land. II. 39 Mich. 232 (1837). where the land over which the water runs is not the property of the claim19.57 L. without limitation as to time. 15 0mm.2‟ It will. Of Dispossession. in legal contemplation. or merely for life.2‟ possession thereof delivered in execution of judgment for its recovery. Hepbnrne. Musgrave.A. 75 Fla. XX. but not for tile water. 11 L. Connecticut: Nichols v. 2 Yentes (Pa.. New Jersey: Condict v. and to occupy and possess the said premises without any hindrance or molestation from the grantee or his heirs. 9 Pick.) 331 (1798). Vermont: Judd i‟. Where a boiler.) 297 (1830). Buel.Y. Connecticut: Nichols v. 27 NiL. 955. Commentaries on the Laws of England. 204 (1814). ISO N. 77 (1858).Y. Saxton v. English: Doe en dem. 85 MI. Hill. Thompson. as such land may be owned.J.A. 612 (1912). 16 Johns.) 184 (1819). (N. 75 Fla.‟° It will not lie. Reynolds. SO N. 0 Johns. 483. Oxford 1775). 33 Am. Carter. lie for land covered by water.. 539 (1918). Bud. Hill v. Jackson v. Pennsylvania: Black‟s Lessee v. Lewis. lijeetment lies whenever the right of entry exists and the interest is of such a character that it can be held and enjoyed and ant. Springfield 1876). 40 Mich. Michigan: City of Grand Rapids v. 5. ed. 1 Man. 1 Chitty.R. Butler v. I D. 2 Yeates (Pa. New York: Jackson v. Wright r. Frontier Telephone Co. Taylor v.Eq. e. 31 Am. (N. (Mass. 204 Fed. 580 (1918). Bradley. Eric It.) 920 (1006). 639. whether his title be in fee simple. 15 Conn. Gladwin. Federal: Priddy v.J. 123 C. Ejectinent will lie. Sheffield.E. Sheffield. Whenever a right of entry exists. 210 (16th Am. Title Requisite to Support Ilijeetment IN order to maintain Ejectment.C. May. it was held that the right reserved was such an interest in the land as would support an Action of Ejcctment. The riparian owner may maintain Ejeetment for land below the high water mark. Thus. Pennsylvania: Black‟s Lessee v. White. 9 Johns.Rep. 137 (1842). 16 N. the Right and Privilege of erecting a milldam at a Cer tain place.

370 (1918). Goodtitle ox dem.E. Virginia: Brunswick Land Corp.E. Roberts. Dutton. 355. Kentucky: Innis v. Maine: Webster v. 9 Watts.Rep. (Pa. Illinois: Wnlton v. 947 (1916). Gittings‟ Lessee. The right reserved t0 a grantor of land to erect a milidam and occupy the land for that purpose. Handley‟s Heirs. 218 SW.) 304 (1820). II. Elliot.Civ. therefore. 430 (1873). & 3. 229. Baldwin. 11 East 834. 2 L. or else to some acknowledged source of Title. 376 (1850). Yonlcum. Crull.) 112 (1807). Ejeetment nevertheless lies to recover them. Lessees-—Right to Possessory Action Before Entry. The defendant may hold the land without any Title thereto. Federal: Hardin v. Joy v. ed. see Note. Crawford. Hill..S. 25 Ill. 17 Ill. Springfield 1876). 147. 106 233 Batterton V. 39 III. 200 (1871).Y. English: Rex v. 131 111. English: Goodtit]e v. Federal: fliels v. 5 Denio (N. § 4.) 258 (1540~. Breese (111. 583 (1807).Payment of a ground rent reserved upon a conveyance in fee cannot be enforeed by Ejectruent. Jackson v. Bud. IV. 1033. In accordance with the provisions of a will. Illinois: Doe cx dem. for some purposes. Perkiuson. Carson‟s Heirs v. Pennsylvania: Beffuer v. 145 (1862). have been Impressed with the character of personalty. Ownership and Possession. Folians. 1115 (Tex. and exclusive. 211 (16th Am. 202 (1862). 37 Md. IndIana: Stebman v. whether baned on prier possession or title. 367. New York: People v. 25. 371. A tenant in common may maintain Ejectment against a third person for his share of the land. in all Cases. 131 Ill. 31 Conn. Treatise on Pleading and Practice in Actions with Precedents and Forms. 23 N. 1037 (1809). 35 L. Hill. English: Goodtitle v. 12 NW.23 but the right must also be of some duration. History of English Law. Libbey. e.Ed.App. 11 East 488. California: Touchard v. 158 Pac. 832 (1890). 2 Har. 21. Connecticut: Robinson v. Douglass v.) 165.) 298 (1812). and the party who would change the possession must. 24. Chance v. citing many ancient authorities. 11 East 488. Walton v. 103 Eng. such as a grant from the government. 2 East 190. 4 Craneh (U. 81 Or. Smart. Miller V. WIlson. or trace his Title back to some one who can be shown to have had possession.2° 23. 91 (1866). 38 Me. 11 S.Rep. 1019). as his mere possession gives him a right to resist Page 249 of 736 . Stuart v. Maryland: Doe cx den. Berdell. 132 sE. 103 Eng. Or tenants In common may sue jointly. c. Of the Forms of Action. Borroum. Follansbee. 486 (1882). Mauran. Keyes. Carter. 103 Eng.L. 808. Butler r. Beta.Rev. The Action 0f Ejeetment involves both the right of possession and the right of property. 695. (N. 9 Johns. by Perkins. 428 (1891).) 389 (1848). 147. Rogers.24 The plaintiff. Maryland: Hall V. Jordan.S. North Carolina: Den cx dem.J. Fletcher.) 241 (1851). 82 Pa.Rep. 1 Chitty. Baldwin. 45 Mich. 553(11126). 4 Bibb (Ky.. 332 (1890).25 He cannot found his claim upon the insufficiency of the defendant‟s title. v. 369 (1851). Kentucky: Chambers v. 537 (1861). Chambers. Inhabitants of Mellor. must recover on the strength of his own Title. 21 Cal.Marsb (Ky4 08 (1829).Y. 22. Bk.Rep. 2 Pollock and Maitland. Shaw v.EE1. On the right of a lessee to maintain Ejeetnient before entry Into possession. 1092 (1809). bee. 34 NC. 345. 232 ACTION OF EJECTMENT an estate as entitles him to possession. Suits for land in Ejeetment are possessory in their nature. show a prior possession. for the possession gives the defendant a right against every one who cannot show a better Title. 288 (1855). (Md. Though lands. 100 (Cambridge 1895). Illinois: Sec. And one tenant In common may maintain an action against the other if he can show an oustot. 140 U. 26. 2 Minn. 1093 (1809).Moore v. Campbell v. Kenege v. 341 (1802). 59 Me. 102 Eng.Ct. 11. 146 Va. 26 Intl 436 (1861). 78 (1854). will support Ejeetment. 3 J. 23 N.

114 N. Smith v. 336 (1874). Kirkpatrick. unac29 companied by the Legal Title. (Penn. Murray v. Harder. must prevail in Ejectment. 632. should evict a person who has been in quiet possession.Eep. 6 Vt. 74 SE. Tennessee: Peek v. (Pa.Rep. Coulter. at Common Law. the prior possession of the plaintiff is superior to that of the defendant. 24 flow. 9 Watts & S. 479 (1867). 219 (1382). he may recover upon his better but Imperfect Title.) 53 (1815).Y. so that if a stranger. Dyehall. Fletcher. 166 (1916). PennsylvanIa: Hunter v. New Jersey: Lepurt v. who has no Color of Title. 31 Ill. When.Y. one who has such a Title will win as against one who has a mere beneficial or equitable interest. 8 Johns.E.J. 2 Wend. prove a Perfect Title in himself. 65 W.101 Eng. Treganza. 632. Jackson en dem. 68 Mich. enforceable in the Courts of Equity.S. of course. Alabama: 846. Such an interest. Check. Pennsylvania: Thompson v. New Jersey: Deport v. 256 (1871). Dodge v. 129 (1845). 923 (1909). (Penn. Hurst. 3 Jiumph. Pennsylvania: Creigh v. 15 111. Hazen. 32 N. 55 Pa. 274 (1860). Wright.) 1fl (1836). 1233 (1798). 28. SB. Virginia: Hopkins „cc „Ward. 106. 383 (1908). Lott. the latter may maintain Ejectmerit against him. Thus. Lorillard. 714 (1861). Lyon. Wharton. 44 (1861). 139 (1908). Burns v. 181 1. English: Doe ox them. Todd.Y. 134 (1831). Vermont: Reed v. ISO U. 2~. 21)7. 158 Ala. Doe ex dem. 40 (1869). Little. 448. 64 S. Russell.Va. 32 NiL. 430 (1873). (N. prior possession. MIssouri: Thompson v. 5 Am. (Va. (Nt) 22 (1806).28 As Ejeetment was strictly a legal action. Chiles v.S. Da Costa v. (N. 114 N. New Jersey: Muhford v.D. Boyles. is sufficient as against a mere intruder. Ashley. Lane. 124 (1866). Illinois: Burns v. But see. 70 W. Atkins v. Adams. 01. it required a Legal Title to maintain or to defeat it.Dec. 45 L. 16 LEd. West Virginia: Taybr‟ v. ivIeFahl v.) 82 (18451. 602 (1834). 33 III. Duncan v.Rep. 275 Ill. will not suffice to support or defeat the action. 173 Eng. by the weight of authority. (N. 105 (1846).C. Masterson v. 26 Vt. Chancy. Davis. 423 (1900). 153. Todd. 23 III. 4 Am. Wisconsin: Bates v. he need only show a Title which. 35 N.E. 1184 (1829). (Pa. Whitney v. 346. New York: Schauber v. ilhnois: Itupert v. 4 Johns. 145 (1871). Cochran. Enhance v. 48 So. 295 (1862). 30 Mich. (Va.L.) 629 (1842). Federal: Bradshaw V.E. Greiner. 501 (1863). Holbrook v. Brenner. Taylor v. 65 W. Ryder v.E. & U. The plaintiff need not. Irwin. Flanders. 472 (1801). M. 6 Mtmf. 131 Eng. Kiminel. 70 I‟a.) 182 (1842). Cooke. 2. Campbell v. 64 S. Illinois: Rountree v. Furman. Jackson. 160 (1910). 48 (1912).) 38 (1817). 10 The plaintiff must. 22 Pa.Dec. Curran. Vermont: Cheney v. 21 SOt. (N.) 398. 59. Jackson. 540 (1854). Hocy v. and upon a showing to that effect. 328 (1811). PhillIps. the action must fail. 3iassengill V. If the defendant shows a paramount outstanding title in some third person. (Pa. Rose-boom v. 260 (1897). 14 Graft.17 Doe cx ilem. (Va. 613 (1870). Stalnaker. 923 (1900). 3 Hill (N. Pennsylvania: Woods V.) 61 (1846). N ark. 005 (1899). Adair v. 236 III. Carmichael.Y. 2 Denio (N. Shumway v. McCann.Va. 72 (1859). 275 111.) 112 (1850): Virginia. therefore. 3 Pa. Irvington Co. & M. Campbell. 11 Humph. Ed.E. 7 Bing. & II. 606 (1854). without any further Title. 154. English: R. 83 Am. Page 250 of 736 .Y. TunIs. 86 N.11. Meeker.J. Jrwirfs Adm’r.) 137. New York: Jackson v. 2 Johns. it is possi ble for the plaintiff to show that he was in possession and that the defendant ejected him by a mere trespass. The plaintiff must. 1 Pa. 46 (1857). so far as it relates to the right of possession. Givin. 262 (1800). 44 Am.E. Wisconsta: Glllett v. 281. Gibbs. New York: Jackson ex dcm.) 390 (1709). Pennsylvania: Woods v. Dean. 323 (1870). flussell. 10 Ohio 312 (1859).Y. 33 Mo.L. 48 (1888): Mississippi: Cunningham v. 151 (1853). 38 Ala. Doe V. Garrott. 124 (1866). 36 N. 31 Md. „Gelges v. Ch. 16-1 (1871): Tennessee: Huddleston V.) 53 (1815). (Pa. Steffan -cc Zeust. have a legal right to possession.) 202. Zllinois Wimbony v.) 30 (1851). 394. 54111. Mosher. Virginia: Tapp~eott v. Alabama: Russell v. 2 S. 11 Gratt. Ohio: Eggleston‟s Lessee v.W. 25 Win. 2 Serg.Ejectment until some one asserts and shows a better right to the property. as against the defendant. Marshall v. 10 App. Curran.Dee.) 13 (1828). 10 Johns. Maryland: Leonard v.. Shatto. 8 T. 9 Yerg. Hence. however. Add. Johnston v. harding v. Casey v. but who has no strict Legal Title. 54 N. Lewis. 448.411 (1871). 536 (1809). The Legal Title.Dee. Shepley.Y.) 325 (1836) . New Jersey: Boylan v.) 338 (1813). is a better Title. Michigan: Bueli v. Flood. Bradford. therefore. 58111.) 172 (1854).Va. Welker‟s Lessee v. Diamond. 24 Mich. 15 Wend. 295. (Penn. 28 NiL. (N. 13 Win. 83 Miss. 37 Md. Lane. have the right of possession at the time the action is Federal: Smith v. (U. 52 III.

19 L. 213 (16th to an ouster. D. 275 111. Alabama: Carpenter v. 44 Mich. 2 Johns.Cas. when the facts of the case preclude such presumption. 389. 175. 342. Meclain. Wroot. see Section 118 of this Chapter. 132 Ill. (N. amounted to a dispossession or ouster of the plaintiff‟s lessor. Hardenbergh v.Rep. 22 Am. be left to the jury to presume that they have convoyed accordingly. 402. 384.Ann. Treatise on Pleading and Parties in Actions with Precedents and Fonas. English: Doe ex den. Johnston. It will. e. 22 N. 177.W. 4 But. New York: Jackson cx dem. Day. Kentucky: Whitley v. 45 N. Ce. and though the plaintiff may be equitably entitled to the land. Livingston. 8 Cow.Y.Mon.) 9 (1841). Ryan. 464 (1868). Malcolm. Simmons v. 511 (1890). (Pa. 24 N. Caldwehl. Lewis v. Maryland: Wilson‟s Lessee v.E. Whatley v. Joiner. But a trustee may maintain Ejectment against his cestui qua trust.) 300 (1800). 251 (1851). 457. U. (‟ A „r t) 234 235 commenced. Beard. On 32. 212 (16th Am. and under certain circumstances. Ann. 454.) 461.St. Louisiana: Deuchatell v. (N. Kinney. Little. Vermont: Beach v. Hayes v. The legal title can be set up by a trustee in an action by the cestul qua trast (beneficiary of a trust). (Md. Doe en dent Corquette. 54 III. New York: Sinclair v.A.Dec. 1243 (1792). 24 flow.Y. 28. the e~eet of Modern Codes.If the defendant has the legal title. 609. and refuses to quit possession. the party having only the equitable interest cannot pie-vail in a Court of Law. Pitkin v. 24 La.Cas.3‟ OFFENSIVE PLEADINGS EJECTMENT will only lie for what. 211. Dyer v. Detroit. ed. 728 (1878).Cas. 57 Am. Of the Forms of ActIon. L. 5 East 138.Bep. the action cannot be maintained. v. 452.) 84 (1828).) 898. Flanders. in fact. Michigan: Ryder v.Y. McCann.E.1915fl. so where the beneficinl occupation of an estate by the possessor under an equitable title induces a fair presumption that there has been a conveyance of the legal estate to such possessor. the landlord of the plaintiff. 336 (1871). Commentaries on the Laws of England. & J. 8 LiLA. 547 (1850). Calthvell v. 323 (1870). where trustees ought to convey to the beneficial owner. Presbyterian Congregation v. English: England en 4cm. that is. 114 N. flannel v. Meier. 350 (1811). But. Page 251 of 736 .. 103 III. Jackson v. Nor that the grantor was incompetent: Walton v.) 72. (S. 42 (1783). Telling. 367 (1802). Sisson.E. as where a tenant holds over after his term has expired. Sehoonmaker.) 143 (1848). 1021 (1804). 56 Mieh..311 (1885). 31. 106 N. Shewen v. Pennsylvania: l3rolaskey V. may amourmt 3 Blaekstone.C. 533 (1876). 13 Ill. 714 (1860). A party cannot recover in Ejeetmont on the basis of an estoppel in pals (as an estoppel of the defendant to set up a title against a title acquired by the plaintiff in reliance upon the defendant‟s representations). Jackson en dem. 9 B. 63 (1880). 16 LEd. L. Practice Acts and Rules of Court on an equitable title as a factor in the Action of Ejeetment.. Chase. e. 11 Ill.St.S. Syburn v. Illinois: Wales v. 89 Mich. 14 Vt. Right en dem. Smith v. Fury. Of the Forms of Action. c. Illinois: Nichols v. though he acquirech $t by fraud. But in no case can presumptions drawn from the fact of the defendant‟s continued possession. or in legal consideration. (N. 427. 1 Chilly. 520.Rep. 4 Johns.” 1 Chilly. & N. Treatise on Pleading and Parties in Actions with Prece~ dents and Forms. 13 East 210.E. 11. after a lapse of many years. 2 East 257. Nor can the defendant set up an equitable estoppel against the plaintiff‟s legal title. 25 Miss. Am. 2 Johns. 191 N. 531. Yaw.Rep. 505 (1008). 424 (1807). or of the plaintiff. Mississippi: Laurissini V. overthrow the plaintiff‟s right of recovery based on his undisputed legai title.E. Black-wood. Morton. after a lawful entry. II. 104 Eng. or Ouster of Chattels Real. 71. the Fictitious Lessee. Rountree v. Against Whom Will the Action Lie? If a cc-stui qua trust is legally entitled to the possession as against the trustee.) 543 (1820).Eep. Inloes. 123 Arn. Christopher v. 264 (1896). 84 Mich. 11 Gill. short of the period necessary to give him title. 9 Cow. 30. Clark. PIke. Illinois: „Wood v. 102 Eng.) 63 (1868). XI. ad. Michigan: Van Vleet v.) 321 (1829). sprIngfield 1876). Kennedy v. 264 Dl. New York: Jackson en 0cm. Lowden..Y. 30 Mich. Oil Pa. Field. 836 (1874).Rcp. 146 (1860). 22 Am. 7 NW. (N. Federal: Smith v. 102 Eng. 199 (7th Ed. by reriang. (Pa. 3 Brewst. 151 Ala. 14 Ann. Springfield 1876). 176 (1820). 1 DalI. Sls. cr. by Perkins. Wrongful detention. Of Dispossession.Y. 31 Ill. New York: Garnsey v. Nor can the defendant interpose the merely equitable defense that the plaintiff‟s title was fraudulently obtained. (N. Oxford 1779). Bramble. 39 Am. 44 So. Beach. 61 III. 1021 (1915). The plaintiff must seek his remedy in a court of Equity. 200 (1852). 1 Watts & S.) 351 (1840).3° And a remainderman or reversioner cannot bring the action while the right of possession is in another.) 69 (1828). (iCy.R. (Pa. Illinois: Kirkpatrick v. 32 Eng. RobInson. Bogur. 204 (1842).Dee. Union Brewing Co. 1 LEd. 278 (1916). 84 N. he may maintain Ejectmont.Rep. Eng‟ 11th: Doe en den.

67. 183 (1881). which prevailed in a few Southern States. Goodright cx den. 178 (1883). Michigan: Lockwood v. Clowcs v. flakes. 359 (1811). McGraw. 8 III. 56 Ill. in theory. 23 (1863). Ed. Penfield. 207 (1866). 161. or the defendant is not thus in possession when the action commenced. Empie.) 558 (1834). 106 236 ACTION OF EJECTMENT OFFENSIVE PLEADINGS Ch. and which. Ejectment is to be distinguished from the Writs of Right to Try Title among the old Real Actions. and from Trespass to Try Title. Ejectment was. But if a tenant in coimnon excludes his cotenant. Shaver v. 43 Mich. 1 Chitty. Illinois: Lundy v. was designed to try the right of possession. Michigan: Anderson v. 288 (1570). 3~. The mere receipt of all profits by one tenant in common of land does not amount to an ouster.) 48 (18i3).. and Ejectrnent was substituted in lieu thereof. 12 Wend. 118 Ill. 10 Snmedes & M. W‟hite v. 37 Cal. Gower ~. II.. Rhode Island: McCann v. 7 „P. 1 Vt.E.W. (N. by Perkins. would be the proper remedy in such case. 4 AtI. Upon Littleton 11Db (Philadelphia 1853). Strictly speaking. 267.Rep. S N. Federal: Ilarnita v. 391. Doe en den. and claims to have purchased them. New York: Banyer v. (Miss. were designed to try Property Rights or Title. 244 (1828). 600. v. 2 Smedes & hr. New York: Valentine v. 674 (1845). Court-right. 25 Pa. in those states. Cooley v. 59 Pa. however. Walker. Hatheway. Jackson en Oem. 208 (1886). and refuses to let him occupy the land.) 494 (1834). as it was found as a practicable matter that you could not Try Title without trying the Right to Possession. Corley v.) 584 (1848). (N. Hapeman. 40 Mich. 9 N. Pennsylvania: Cumberland Valley U. Trespass.Rep.—. Harrett. These Ancient Real Actions. the latter cannot maintain the action. Smith‟s Heirs. California: Lawrence v. Drexel. 10 If there has been no Ouster.Y. which. 10 N. I Chitty. 327.) 220 (1844) Smith v. EJECTMENT. (Miss.33 Michigan: Kinney v. Rich. in legal theory. 1 Mich. 113 Pa. 558 (1888). Downing. 313.Y. Mississippi: Wallis v. 13 East 210. Clowes v. unlike Ejectment. English: Right en dem Lewis v. McLanahan. 214 (10th Am. could be maintained on an Equitable Title. 40 Mich. Raleb v. the action must fail. The Action is also to be distinguished from Trespass to Try Title.W.St. (N. 138. not Ejectment. Springfield 1870). and is to be distinguished from the Writs of Right. 12 Wend. 38 Ani.E. Doe cx den. 131 Ill. Springfield 1876). Rathbone. 403 (1813). New York-‟. Whitford v. Heinmiller v. 5 N. It is sufficient if he has a deed for the premises.Y. 27 NW. Co.W. 23 N. 337 (1893). Jacks-on cx dem. 214 (16th Am. 518 (1808). Illinois: Reed v. THE Action of EjeCtment.Y. 708 (1881).-DISTINGUJSIIED FROM AND CONCURRENT WITH OTHER ACTIONS 107.) 335 (1805): Pennsylvania: Kribbs v. Drake. Treatise on Pleading and Parties in Actions with Precedents and Forms. An actual possession by the defendant is not necessary. Board. Sec. Reed. Ed. Mclntire v. 2 Caines (N. Casey. entitling Ins eotenant to maintain Ejectment.) 456. 104 Eng. that a landlord in possessiot could not maintain the action to bar the right of his absconding lessee. and it was concurrent with trespass in its early stages of development and with the Writ of Entry.S. of Page 252 of 736 . 60 Mich. it is otherwise. 7 Cranch (U. which has been recorded. Coke. 76 Pa. 17 Vt.. 1001 (1797). Treatise on Pleading and Parties in Actions with Precedents and Forms. 101 Eng. Luudy. Vermont: McDaniels v. 3 LEd. for instance. Pentz. It was held.and further than this the defendant must be in the adverse and illegal possession of the land at the time the action is brought. 57 (1574). 572 (1879). by Perkins. 2 Caines (N.Rep.Y. 14 (18-17) .) 335 (1805). Quinlan. was a substitute for Ejectment. II. were finally abolished. If the possession of one tenant in common is not adverse to the other‟s right. Vermont. Rakes. 5 Hill. Balluu. 87. Northrop. 197 (1886). but. Of the Forms of Action. c. Wing. e. Tyler.R. 47 Mich. 399 (1855).

and thereupon the said John Doe by his attorney. upon trial of the issue. on the day of in the year aforesaid. concurrent with Trespass. A Wreatise on the Principles of Pleading in Civil ai. it was also concurrent with the Writ of Entry. 875 (Springfield. c. the said John Doe entered into the said tenements with the appurtenances. upon the trial of the issue. and for the term aforesaid. and acres of other land. I.Ar~nIoN IN EJECTMENT ~ IN THE QUEEN‟S BENCH. For Sec. coachhouses. p. yards. and ouster. Page 253 of 736 . with the appurtenances. not guilty: and. 109 237 the said John Doe saith he is injured and hath sustained damage to the value of £100. outhouses. as it grew out of Trespass. 1805). shall confess lease. and ejected the said John Doe from his said farm. to wit.] with force and arms. gentleman. may be made defendant in the place of the now defendant William Stiles. gardens. And. and of the Common Con sent Rule in Ejectment. which is not yet expired. to wit. 1859). acres of arable land. &c. acres of woodland. entry. acres of meadow land. [or. to the great damage of the said John Doe and against the peace of our lady the queen. Richard Roe was attached to answer John Doe of a plea of trespass and ejectment &c. “COM MON PLEAS”] Term. by virtue of which said demise.. FORMS OP DECLARATION AND COMMON CONSENT RULE 105. DECI. in the year of the reign of Queen Victoria. and shall immediately appear to the plaintiff‟s action. and by reason thereof the plaintiff cannot prosecute his writ. the twenty-ninth year of King George the Second. and insist upon his title only. and ouster. and became and was possessed thereof for the said term so to him thereof granted. heretofore. by the assent of both parties. entry. on the thy of in the year of our Lord in the parish of in the county of had demised unto the said John Doe messuages. 27 (Williston ed. Actions. on the day and year aforesaid. the said Richard Roe afterwards. FoRM OF COMMON CONSENT RULE IN EJEcTMEN‟T iT is ordered by the court. that whereas one AS. and the said John Doe being so thereof possessed. complains against the said Richard Roe.] thence next ensuing and fully to be completed and ended. acres of pasture land. Cambridge. from its Commencement to its TerminatiOn. entered into the said tenements with the appurtenances in which the said John Doe was so interested. This section includes Forms of a Declaration in Eject-tent.course. stables. Of the Proceedings in an Action. ____ to wit. the said George Saunders do not confess lease. to have and to hold the same to the said John Doe and his assigns thenceforth for the term of fourteen years [a sufficient number of years to extend beyond the time within which judgment can be obtained. barns. and shall immediately plead thereto. cottages. Pleading. in its early stages of development. in manner. and other wrongs to the said John Doe then and there did. orchards. Hilary Term. see Stephen. and therefore he brings his suit. And if. situate and being in the said parish of in the ccamty aforesaid. [OR. and shall receive a declaration in a plea of trespass and ejectment of the tenements in question. Wherefore ______ _____ _____ _______ ______ . &c. acres of land covered with water. in the sense that it lay wherever the plaintiff had a Right of Entry. ACTION OF EJECTMENT 2 Chitty. and their attornies. that George Saunders. another Form of Declaration.

Wooster v.then the taxation of costs upon such non-pros. without further Title. show such a Title and Right. 475 (New York 1806). Appendix No. Butler. then the lessor of the plaintiff shall pay costs. and state the Title. It Co. Principles and Practice (Ancient and Modern) of the Legal Remedy by Ejectment. 10 DECLARATION IN EJECTMENT—ESSENTIAL ALLEGATIONS: (2) THE PLAINTIFF‟S RIGHT. though prior peaceable possession. The Declaration must. involved alleging in the declaration: (1) A Lease from the real plaintiff to the nominal plaintiff. as by the court of our lord the kind here shall be taxed and adjudged for such his default in non-performance of this rule. not only in order that it may be seen that the property demanded is the same as that with reference to which evidence is introduced. the plaintiff. but also in order that possession may be delivered to the plaintiff or demandant if he succeeds in establishing his right. TITLE. Today. upon any other cause than for the not confessing lease. by default.J. now the casual ejector. Camden & A. Mitchell. The History. 425 (1862). All Declarations in Ejectment must describe the premises demanded with certainty and precision. 30 Conn. 275. THE fictions by which the Action of Ejectment was extended from a remedy for a lessee to all claimants. (2) The Entry by the nominal plaintiff wider the Lease. 33 N. 321 (1890). V. Description of Premises AS the recovery of a specific tract or tracts of land is the main object of this action. entry and ouster. RUNNINGTON. Mississippi: Latar v. and judgment shall be entered against the said William Stiles. Munson. 23 Mich. or it will Page 254 of 736 . John Doe. 115 (1868).35 35. may be sufficient as against a mere intruder or trespasser. 81 SE. and (3) The Ouster of the nominal plaintiff by the nominal defendant (the Casual Ejector. 7 So. The Declaration in Ejectment must describe the premises in question. OFFENSIVE PLEADINGS The Plaintiff‟ s Right AS we have shown above.. And it is further ordered. 11 (1871). Canton. DECLARATION IN EJECTMENT—ESSEN. 141 Ga. Munson v. that. It should also allege a Right of Entry in the plaintiff at the time the action is brought. if the plaintiff himself doth not pay them. 403. Howard. 104 (1914). MichiganI Seeley v. or if the plaintiff shall not prosecute his writ. to maintain Ejectment. the Declaration must describe the premises demanded with certainty and precision. The Essential Allegations in the Declaration in Ejectment are: (I) The Title of the plaintiff to certain Land (II) The wrongful Ouster or Disposses sion (III) The Damages The Fiction by which Ejectment was extended from a remedy for Non-Freehold Tenants to Freeholders has in general been abolished. PennsylvanIa: Ch. the suit is usually brought by the real plaintiff against a defendant who is the Actual Occupant. New Jersey: Stewart v. INTEREST OR POSSESSION 110. 13 Conn. This childish mummery is now generally discarded. 309 238 Georgia: Stringer v. of course. must have a Legal Right to possession at the time the action is commenced. 67 Miss. if upon trial of the said issue a verdict shall be given for the defendant. Connecticut: (1830). Richard Roe) during the term of the lease. and the said George Saunders shall pay such costs to the plaintiff.L. so as to clearly identify them. as aforesaid. shall cease. TIAL ALLEGATIONS: (1) IN GENERAL 109. By the court.

428. NorrIs. Illinois: Parr v. 496 (1911). 7 Vt. 55. 223. and should be laid high enough to cover both the Full Amount of Such Profits and the Damages for the injurycaused by the dispossession or ouster.E. includes the recovery of Mesne Profits. 58 Fla. THE Action of Ejectment. for the scope of this action has been enlarged in some of them by statute. 134. 25 A. State v. in all cases. though their recovery is not the main object of the Action. South Carolina: 35. 8 LEd. 130 Ga. Jackson v. merely a holding over by a tenant after the expiration of his term. § 455 (New York. 258 (1908). 38 111. to state a good cause of action. It may be. (U. 36. Clover. 226 (1865). 114 Alabama. 65 S. They are usually. Trespass to Try Title &c. Sedgwiek & Wait. Davis v. § 3830. 76 III. 450. AIa. 60 (1908). Scott v. 66 (1878). At Common Law a Judgment in an ACTION OF EJECTMENT THE JUDGMENT IN EJECTMENT Action of Ejectment was never a Bar to another Page 255 of 736 . 500 (1872). Stickney. 60 SE. and that such possession shall be adverse. It is also generally essential that the defendant shall be in actual possession when suit is brought. 8. and the amount would. show such an Ouster or Dispossession. 18 B.37 DECLARATION IN EJECTMENT—ESSENTIAL ALLEGATIONS: (4) THE DAMAGES 112. the Damages must also include such profits. C Pet. The Declaration must. Georgia: Dugas v. as the right of possession only is the subject of controversy.3° At Common Law.36 DECLARATION IN EJECTMENT—ESSENTIAL ALLEGATIONS: (3) THE WRONG111. These requirements may not exist in all the states. Rhode Island: Whipple v. describing them as in a deed of conveyance. Almond v.) 498. It is sufficient under some statutory forms to allege that plaintiff was owner and possessed of the premises sued for. and such adverse possession or claim. to an ouster or dispossession of the person having the Right of Entry upon the premises in question.4° 113. 678 (1892). be generally only a nominal sum. 88 111. and a nominal amount only need be stated. or those which the defendant has received during his WHILE at Common Law the Damages recoverable hi this action were. 38 and in such case the Damages al 37. McGlnn. therefore. 54 So. 87. and in some states still are. must he alleged. Lyons v. including Ejectment. Bees. Clark. Heaphy. the Damages in Ejectment are merely nominal. 310 (1908). 61 St. Bonnell.C. what amounts. vermont: thai-k v. 170 Ala.Code 1907. 652 (1892). Beekman. 167 (1872).) 77 (1811). Tribble. also. for instance. Colson. 44 Vt. South Carolina: Livingston v. New York. at Common Law. 156 Ala. in fact or in law. Buff. 477 (1832). The Declaration should also state the Damages caused by the dispossession of the plaintiff. Hammond. The Declaration should state an Ouster or Dispossession of the plaintiff. and an actual. holding that detention by the defendant Guerard „cc Jenkins.C. Van Horn. 88 Vt. holding that the Allegation of Possession will be supported by proof of a Legal Right to Possession. 4 Binu. Howell. in most the plaintiff is also allowed to recover the Mesne Profits. Holt v. Flit OUSTER OR DISPOSSESSION as we have seen. 325. 30 (1867). Sec. 813 (1915)~ Federal: Barclay v. 1886). 44 III. 284. See. 268 (1908). As we have also seen. If the Action. is only proper where there has been finn v. 156 Ala. 92 A. FlorIda: Norman v. 1882. 190 (1835). Alabama: flush v. in point of fact or in point of law. A Treatise on the Principles and Practice Governing the Trial of Title to Land. (Pa. Nominal only. as is necessary in the particular jurisdiction to a maintenance of the action.!. 80 S. Judge. 239 leged must include a sum sufficient to cover these. flIck-Orson V. as in some states. 538 (1875). 47 So. 47 Ala. 480. 2d ed. the Ouster need not be by an actual turning out of the plaintiff. only those adverse possession. 43 S. 47 So. adverse possession by the defendant. and when the above privilege is not allowed.

~. Boyd. the action is now directed against the Actual Occupant. 34 Miss. 12 N. 710 (1915). Federal: Battin v. but he is also entitled to recover Damages for the time the disseisor continued in occupation of the premises and for the wrongful withholding thereof. Bills of Peace. e. Pet. a party to the action. as opposed to the Fictitious Lessee. 755 (1864). although the act of first entering upon the land was a trespass. the profits realized from the land by the wrongdoer during the period of wrongful retention of the property. c. 43. This act of withholding was.) 527 (1921). as Ejectment was created by extending the Action of Trespass to protect the interests of the non-freeholders or tenants. and hence could not be invoked under the doctrine of res judicata. New Jersey: Sneider cc I.C. 31 LEA. 853 (Boston. 1O~ Illinois: Duncan y. 85 SE. Bigelow. 2 Wall. Journey. hence a Judg ment is now binding and may be pleaded under the doctrine of res judicata. was not in reality a party to the action. 1330 (1910). may be pleaded under the 42 doctrine of rca judicata. Jones. 20 Ann. Story. as we have seen. who was mentioned in the Title of a case in Ejeetment. the Court of Chancery intervened to enjoin the plaintiff from prosecuting further actions. Rhode Island: Berresboff v. Commentaries on Equity Jurisprudence as Administered In England and America.Rep.St. 568 (1907). 76 W.Y. as the defeated landlord. 223. 02. In the Declaration in Trespass for Mesne Profits.) 844. Crary „cc Goodman. therefore.l. Mississippi Garner v. 1945).Ct. 228 Pa. XXII. a! though mentioned in the title of the action. for the same reason. With the abohi lion of the Fiction in Ejectment. 240 Law of Torts. It follows. Inc. 29 Ri. (Pa. Rhode Island: Rinfret & Arruda V. after the plaintiff had been defeated in several 50 So. (U. the Landlord. the Judgment in Ejectment at Common Law was not conclusive. Pennsylvania: Bayard V.) 35.1. Inglis. 763 (1908). Miles V.s. Tripp. AS explained earlier. pennsylvania: Alexander V.Y. 17 LEd.Super.Cas. 104 (1885). This same early practice was sometimes the cause of what was known as Equitable Bills of Peace. (N. New Fork: Danaiger v. Caldwell. 554. The judgment. 1836). 23 A.4‟ Under modem statutes abolishing the Fiction in Ejeetment. as the real plaintiff.App. 452. in reality. McVicker.5. and hence was not bound thereby.action.” „~ In consequence. 137 Ill. of course. the action is now directed in the names of the actual parties.1O5 (1807). suits. 16. 115 A. 69 A. 461. 365 (1877). 177 (10th ed. Morrlsey. As Saimond remarks: “To remain wrongfully in possession of land is not. though tortious. DECLARATION IN TRESPASS FOR MESNE PROFITS—ESSENTIAL ALLEGATIONS: 114. 77 A. Page 256 of 736 . hence the Judgment carries the same conclusiveness and finality as any other Judgment and. 266 (1801). This situation created so much dissatisfaction that in the early part of the Eighteenth Century. was free to seek two new collaborators. Shalala.Cas. not a Trespass. (142. were not recover41. 139 Am. 505 (1557). not being a party to the action. 297. Schwenk. and thus start litigation all over again.C. London. Salmond‟s 42. 1004. that one who recovers land from which he has been ousted is not only entitled to recover Damages for the original act of dispossession.No. 54 N. the Essential Allegations are: (I) The Tithe of the Plaintiff (II) The Ouster or Ejectment (III) The Damages (1) IN GENERAL EVERY wrongful Ejectment includes a Trespass. 5 Watts & S. because the landlord. was not even conclusive as between the same parties or as to the same land.Va. 870 (1909).) 465 (1843). however. Fed. 15 11. a trespass. West Virginia: Croston V. was not.

Eep. by a Legal Fiction. and the title of the plaintiff thereto. Laker. the plaintiff may then bring an Action f or Mesne Profits against the person who was the defendant in the Action of Ejectment. the wrongful occupation may be alleged as a continuing Trespass which entitles the owner. and of the Entry and Possession of the defendant. as well as the value of the profits themselves. therefore. and the value of the Mesne Profits which the defendant is alleged to have received must be correctly alleged. as if no prior adjudication had been made. Higgins v. Upon this presumed possession. to all the profits made during the period of his ouster.ed. the plaintiff was required to regain possession by a lawful Re-Entry. 4 Cow. 46. the amount being merely nominal. All these facts are stated in a general and summary manner. and their receipt by the defendant during the period of the Ejectment. Osborn. as in other Forms of Trespass. in which cases the Record 49 would not be admissible. Highfteld. 104 Eng. as well as other Damages due for injury to the property. as „cvell as the value of the Mesne Profits accrued. Philadelphia. These profits included crops. different parcels of land 44.~ the suit may also be for the recovery of Mesne Profits for an occupancy antecedent to the time for which the plaintiff‟s Title has been actually established. or other assets taken from the land during the period of disseisin. so far as the pleadings are concerned.4‟ The pleader will here avoid confusion by noting that while this action may be between those only who were parties to the prior Action of Ejectn‟. IllinoIs: Smith v. 1782). 12 Of Trespass Wrongs. only Damages for the wrongful Ouster.ent. Wenderlich. In order to place himself in a legal position to recover the profits acquired by the wrongdoer. save that the (1855).Y-) 321i (1825). Ibid.~ DECLARATION IN TRESPASS FOR MESNE PROFITS—ESSENTIAL ALLEGATIONS: (2) THE PLAINTIFFS RIGHT. 186 from which the profits arose. or by a Judgment in the Action of Ejectment. PennsylvanIa: King V. TITLE. (N. now restored to possession. 25 Pa. As it is a separate action from the prior Action of Ejectment. and the plaintiff would be compelled to prove his Title as in any action. must be separate and independent. or the Action may be brought against a precedent occupier. the plaintiff‟s title to the premises should also appear. and not sufficient to compensate the plaintiff for the long period of occupation by the wrongdoer. Page 257 of 736 . 427 (1811). INTEREST OR POSSESSION 115. 45. presumed” to have been in possession throughout the intervening period. Having recovered possession. c. The Declaration in Trespass for Mesne Profits must describe the premises from which the profits arose. description of the premises must be such as to identify them. Commentaries on the Law of England. rents. 3 IT is obvious from the nature of this aE-‟ tion that the plaintiff must expressly state and describe the Blgckstone. 70 111. 1& from the date of the original disseisin until the time of recovery of possession. and while in such cases the Judgment in that Action will be Conclusive Proof of the plaintiff‟s Possessory Title.OFFENSIVE PLEADINGS able in the Action of Ejectment.46 as the defendant might otherwise compel him to make what is called a New Assignment. and their receipt by the defendant. 426 (1873). 210 (1st Ain. the owner was. or restatement of the grounds of his action. The action. fl. In this action. New York: Dewey v. by pleading “iiberwrt tenementum” or the common bar. 13 East 407. extending Ch.

6 L. By the Statute of 3 & 4 Wm. 11 Johns. The Damages to be stated. DECLARATION IN TRESPASS FOR MESNE PROFITS—ESSENTIAL ALLEGATIONS: (4) THE DAMAGES 117. (I) In England. FOR the same reasons as those above given regarding the particularity of statement necessary in showing the plaintiff‟s right. Sec.. 2 Burr. English: Aslin y. if specially alleged as part of his claim. and the time during which the latter continued. (U. ~„ but the plaintiff may add to this.—In the form and scope. The Declaration must also state the Entry and Ouster or Ejectment by the defendant. 5 Cow. virginia: Whittington v. 665.S. Riddle. New Highfleld. and ejected the plaintiff therefrom. (N. 539 (1805). 104 Eng. as outlined above.Ed.The Declaration must also state the Damages resulting from the wrongful dispossession. STATUS OF EJECTMENT AND TRESPASS FOR MESNE PROFITS UNDER MODERN CODES. Jackson v. 5 LEd. Ejectment. which. 118 ACTION OF EJECTMENT DECLARATION IN TRESPASS FOR MESNE 241 PROFITS—ESSENTIAL ALLEGATIONS: (3) THE OUSTER OR EJECTMENT 116. or rather their value. c. Randall. the recovery of WE have before seen that the Damages in the profits themselves. Rep. 245 (1755). New York:. Maryland: West cc hughes. 4 Cow. 1 flar. Loomis. the Declaration must also contain a Formal Allegation that at a certain time the defendant wrongfully entered upon the premises in question. 35 (1331). The Statute provided that no descent cast. Burtis.) 280. (Md. 50 and this statement of the injury should also include an Allegation of Waste or other injury to the property committed by the defendant during that period. In this Action for Mesne Profits. is the object of the action. IL. the Action of Ejectment continued down to modern times.Rep. New York: Lion v. Bray V. 27. therefore. only. HIggins v. Under certain Modem Codes and Practice Acts the Plaintiff may recover mesne profits in his action to recover possession of real property. MoSbane. & S.) 574. PRACTICE ACTS AND RULES OF COURT 118.Y. and not the enforcement of the possessory right. 541 (1324). IV. 427 (1811). 8 Wheat. Federal: Chirac V. 97 Bug. in this Action. 11 Wheat (U$.) 363 (1824). (N. 2 Ani. are generally the value of the Mesne Profits received by the defendant.Dee 347 (1825). (Va. the Real Actions were abolished. under Section 36 being one of Four Actions excepted.) 405 (1814). thereby in effect permitting a combination of what at the Common Law were the separate actions of Ejectment and Trespass for mesne profits. Parkln.) 168.) 1. or warranty shall hereafter defeat Ejeetment Page 258 of 736 . 474 (1826).) 408 (1826). Federal: Green V. Reinicker. 13 N. Jersey: Den ox dein.Dec. as the plaintiff will be allowed to include such Damage in his recovery.Y. (N. 13 East 407.Y. sequence of any misconduct of the defendant. are the value of such profits during the period of dispossession. the Damage resulting from any injury done to the premises in con 50. Christian. superseding practically all the Ancient Real Actions known to the Common Law. the Common-Law Action of Ejectment are Nominal. and the length of time such dispossession continued. 15 Am. New York: Jackson v. 2 Rand. 51. ~.52 And this case is also an instance within the general rules that the recovery cannot exceed the Damages laid. discontinuance.48. § 36 (1833).

Co. Pleadings of all kinds were abolished and thereafter the action was commenced by a Judicial Writ directed to the person in possession and to all persons entitled to defend the possession of the property claimed and described in the Writ. which had the effect of abolishing the fictitious proceeding in Ejectment and of reforming and simplifying its procedure. By Rule 21 under Order XXI. Federal: New Orleans v. and notifying them that in default of appearance they would be turned out of possession. it remained unchanged until 1852. 125. (A) The Common Law Procedure Acts of 1852.S. the Court then made up an issue between the one who claimed possession in the Writ and the parties appearing to defend their possession. 2 Wafts & S. 21 LEd. e. the plaintiff was entitled to a Judgment of Recovery of all or part of the land sued for. with five divisions.—The Action of Ejectment. and thus made the remedy by Ejectment of universal application.. the Page 259 of 736 .~°—In this Form the Action continued down to the Supreme Court of Judicature Act of 1873. (Pa. 100 Statutes at Large 793 (1860). 115 (1868).J. IV. OFFENSIVE PLEADINGS Common Law Action of Ejectment. and all other actions. Some idea 57 as to the extent of its acceptance can be seen in Tyler‟s excellent work on Ejectment. as developed by the Courts. or unless he asked for relief on equitable grounds. was then fried according to the general principles which the Common Law had developed for the governing of the Cli.) 308 (1841). As appearance itself constituted a Defense to the Writ. Under this Act the Superior Courts of Law and the Courts of Chancery were consolidated into the High Court of Justice. 1854 and 1860. and prior to the modem statutory changes in England. Ejectment has lost its name and many of its distinctive features. in effect. as the Pleadings had been abolished. If the defendants failed to appear. and. a defendant in possession was excused from pleading his Title unless his Defense depended upon a. but even today. Such issue. the principles underlying the Action of Ejectment still govern where an Action is brought for the recovery of land. 15 Wall.any Right of Entry or Action for the recovery of any lands. Camden & A. or appeared for the purpose of defending only a part of the property. upon which the plaintiff endorsed a Statement of his Calm.17 & IS Viet. in England. 92 Statutes at Large 285 (1852). 63. (1872). and this enactment. thus formulated. 33 N. to which the defendant made a Statement of his Defense. (U. e. underwent material change. having escaped the abolishing effects of 3 & 4 Was. extending from 1833 until now. New Jersey: Stewart V. Gaines. Wickersham. commanding them to appear and defend the possession of the property sued for. (B) The Supreme Court of Judicature Act of 1873. together with the relief asked for. c 27 (1833). (II) In the United States.) 624. and thereafter the Action of Ejectnient. Under the influence and effect of the foregoing statutory changes. 15 54. was generally adopted in the Several States of the United States. 76.n equitable estate or right. 94 Statutes at Large 794 (1854).~~ the 52. SS 23 242 & 24 vioL c. or such part thereof as they may deem fit. 10 former Action of Ejectrnent. converted all Titles into Possessory Titles. as the case might be. It was assumed that these three Reforming Acts authorized the use of Equitable Defenses.L. 215 & 16 viet. Pennsylvania: Huston v. as developed at Common Law. but the Courts in construing them held that such Defenses were not available.—Under the Common Law Procedure Act of 1852 ~ and the Amendatory Acts of 1854” and 186O. The pleadings were governed by Rules of Court under General Orders issued in 1833. It. in this Form. were commenced by a Judicial Writ of Summons. 126.

pp. 118 ACTION OF EJEOTMENT plaintiffs or defendants. 60. 118. ~ 13168. which. for most part. 54. Tyler. 611—837 (Albany. Michigan and New York. Townsend v. 26 DeL 75. 8 Law Reports 306 (1873). the Action has been converted into a simple and direct remedy for the assertion of Title to real property held adversely. the plaintiff may recover damages for withholding the property. c‟s. 66. In certain states. the Action of Ejectment was an action for the recovery of Damages. and at that time the Mesne Profits were the measure of the Damages.Laws Mich. the provision was not mandatory. not for recovery of the premises. XXXVI to XLV. fluE see Doe ex dem. whether Consistent or Inconsistent. may be found in Section 601 of the New York Real Property Actions and Proceedings Law. ~ 3 Oomp. while the name was retained. c‟s. and the 243 Statements of any Lease or Demise to the plaintiff.°3 An example of this type of statute. Doe ox dem. as in Illinois.1915. and such statutes usually provide that the action shall be brought in the name of the Real Claimant out of possession against the Ac-thai Tenant or occupant of the land. Sec. 1870). Tombs.B. or whether denominated Legal or Equitable. v. including the rents and profits or the value of the use and occupation of the property for a term not exceeding six years.” 61. were prescribed.M but Section 8 of the same statute provided that “The use of fictitious names of 57. however.Rep. 46 South 472 (1910). §~ I--S (1921). 155 Ala.particulars of which cannot be included here. 45. 352 (1911). A Treatise on the Remedy by Ejectment and the Law of Adverse Enjoyment. and the names of any other than the Real Claimants and the Real Defendants.62 whereas. 61 In some states this Form of Action is still the proper remedy.” And the same was true in Michigan and other In those states where a Statutory Form of Ejectment was adopted.59 Ejectment by a Casual or Nominal Ejector. is merely an evolutionary development of its ancestor. Hoppln. but the damages shall not include the value of the use of any improvements made by the defendant or those under whom he claims. Tyler. e. With the old Fictitious Allegations swept away. 1968.K. and of an states. 1870). 375 It 36 & 37 VIctoria. equally applicable to its Modem Statutory Counterpart. 80 AtI. for example. v McCullough. and for the recovery of its possession. Page 260 of 736 .1921. Co. 3 Wils. however. c.E. which contains the following provisions: “In an action to recover the possession of real property. In most states the Fictitious Proceeding in Ejectment has been wholly abolished. that the rules and principles which for centunes were applicable to and developed by the old Common Law Action of Ejectment are. 611—837 (Albany. alter all. Aetna Life Ins. Hurd‟s Bev. the Mode of Procedure. (1912). the plaintiff was required to recover for Mesne Profits in the original action to recover the premises. floe. 13169. And this was the v. A Treatise on the R‟~nedy by Eleetment and the Law of Adverse Enjoyment. pp. by statute. the Damages in the action were limited to Nominal Damages. In such states a defendant may offer Proof of an Equitable Title against a Legal Title shown b