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HANDBOOK

OF
COMMON LAW PLEADING


By
JOSEPH H. KOFFLER

Professor of Law

New York Law School
and
ALISON REPPY

Late Dean and Professor of Law

New York Law School

HORNBOOK SERIES



B?. PAUL, fINN.
WEST PUBLISBING CO.
1969

ADVISORY BOARD

AMERICAN CASEBOOK SERIES

HORNBOOK SERIES AND BASIC LEGAL TEXTS

NUTSHELL SERIES AND BLACK LETI’ER SERIES

JOHN A. BAUMAN

Professor of Law

University of California, Los Ange]es


CURTIS J. BERGER

Professor of Law

Columbia University School of Law
JESSE H. CHOPER

Dean and Professor of Law

University of California, Berkeley
DAVID P. CURRIE

Professor of Law

University of Chicago
DAVID G. EPSTEIN

Dean and Professor of Law

Emory University
ERNEST GELLHORN

Dean and Professor of Law

Case Western Reserve University
YALE KAMISAR

Professor of Law

University of Michigan
WAYNE R. LaFAVE

Professor of Law

University of Illinois
RICHARD C. MAXWELL

Professor of Law

Duke University

ARTHUR R. MILLER

Professor of Law

Harvard University


JAMES J. WHITE

Professor of Law

University of Michigan
CHARLES ALAN WRIGHT

Professor of Law

University of Texas


XII

HANDBOOK

OF
COMMON LAW PLEADING


By
JOSEPH H. KOFFLER

Professor of Law

New York Law School
and
ALISON REPPY

Late Dean and Professor of Law

New York Law School

HORNBOOK SERIES



ST. PAUL, MXNN.
WEST PUBLISHING CO.
1969

COPYRIGHT © 1969

By

WEST PUBLISHING CO.



All rights reserved
ISBN No. O’-3l42935l--x

KaiSer & Reppy Can.Law Pb9. HO

4th Reprint 1986

To
LYNNE KOFFLER
and
VIRGINIA REPPY RUSSACK

S

xv



PREFACE

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.
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 vi-
xvii

PREFACE
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
xvi”

SUMMARY OF CONTENTS

PART ONE—DEVELOPMENT OF COMMON LAW PLEADING AND

ITS IMPORTANCE IN MODERN PRACTICE

Chapter Page

1. Common-Law Pleading and Practice—Still Survives as the

Basis of Modern Remedial Law 1

2. The Development of the Common-Law Forms of Action 31



PART TWO—OFFENSIVE PLEADINGS—GENERAL CONSIDERA­TIONS

3. The Commencement of an Action 68

4. The Declaration—Form and General Requisites 82

5. The Declaration—General Rules as to Alleging Place, Time,

Title and Other Common Matters 102

6. The Declaration—General Rules as to Manner of Pleading ~ 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


19. Considerations Preliminary to the Classification of Defenses - - 378

20. The Demurrer 384

21. Pleas—Dilatory 410

22. Pleas—Peremptory or in Ear 433

23. TheReplication 513

24. The Production, Tender, and Joinder of Issue 532

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

SUMMARY OF CONTENTS


PART FIVE—LITIGATING THE CONTROVERSY

Chapter Page

25. Trial by Court or by Jury 536

26. Aider and Amendment 553

27. Retrospective Motions 565



PART SIX—JUDGMENT, EXECUTION AND APPELLATE REVIEW

28. The Judgment 584

29. The Execution 589

30. Appellate Review 596



Table of Cases 605

Index 647

n

TABLE OF CONTENTS

PART ONE. DEVELOPMENT OF COMMON LAW

PLEADING AND ITS IMPORTANCE IN

MODERN PRACTICE

CHAPTER 1. COMMON-LAW PLEADING AND PRACTICE—

STILL SURVIVES AS TEE BASIS OF MODERN

REMEDIAL LAW

See. Page

1. The Place of Common-Law Pleading in the Law S



2. The Importance of Common-Law Pleading 10

3. The Functions of Pleading at Common Law 13

4. The Development of Substantive Law out of Procedure 17



5. Relation of Common-Law Pleading to Other Systems 19

6. The Status of Common-Law Pleading Under the Codes 24

7. Modern Procedure Under Codes, Practice Acts and Rules of Court—C

Merely Another Step in the Evolutionary Development of the Com­

mon Law 27
CHAPTER 2. THE DEVELOPMENT OF THE COMMON-LAW

FORMS OF ACTION

8. Origin of the Common-Law Forms of Action 32

9. Classification of the Common-Law Actions 46

10. The Ancient Real Actions First in Order of Development 47

11. The Modern Real Actions 53

12. The Modern Personal Actions 56

13. The Effect of the Development of the Forms of Action 58


PART TWO. OFFENSIVE PLEADING—

GENERAL CONSIDERATIONS

CHAPTER 3. THE COMMENCEMENT OF AN ACTION

14. The Court 69

15. Jurisdiction of Courts 70

16. Process—The Original Writ 71

17. Service—Personal and Constructive 75

18. The Appearance 78

19. The Pleadings So


CHAPTER 4. THE DECLARATION—FORM AND

GENERAL REQUISITES

20. Formal Parts of the Declaration 82

21. The Actual Statement of the Cause oi Action 86

22. Ultimate and Evidenti~ry Facts 90

28. Ultimate Facts and Conclusions of Law 92



24. Several Counts in the Same Declaration 94

25. Joinder of Different Causes of Action 96

KoffItr & Reppy Can.Law Pida. HO XXI



TABLE OF CONTENTS

Sec. Page

26. Different Versions of the Same Cause of Action 98

27. Conformance to Process 100

CHAPTER 5. THE DECLARATION_GENERAL RULES AS TO

ALLEGING PLACE, TIME, TITLE AND OTHER

COMMON MATTERS

28. Laying the Venue 102

29. Local and Transitory Actions 103

30. Local Facts—Venue in Pleadings Subsequent to the Declaration 107

Si. Consequences of Mistake or Omission 107

32. Time 108

33. When Time Must be Truly Stated 108

34. When Time Need Not be Truly Stated 109

35. Time of Continuing Acts 110

36. Description of Property lii

37. Names of Persons 113

38. Parties to the Action 114

S9. Showing Title 115

40. Title in the Party or in One Whose Authority He Pleads 116

41. Alleging Derivation of Title—Estates in Fee Simple 118

42. Alleging Derivation of Title—Particular Estates 119

43. Title by Inheritance 120

44. Title by Alienation or Conveyance 120

45. Manner of Pleading Conveyance ‘20

46. The Written Conveyance and the Statute of Frauds 121

47. Where a Party Alleges Title in His Adversary 122

48. What is a Sufficient Allegation of Liability 122

49. Proof of Title as Alleged 123

50. Estoppel of Adverse Party 124

51. Showing as to Authority 124

52. Profert of Deeds 125

53. Writings Pleaded According t0 Legal Effect 126

54. Damages—General and Special 128

CHAPTER 6. THE DECLARATION—GENERAL RULES AS

TO MANNER OF PLEADING

55. Statements to be Positive 130

56. Certainty in General 131

57. When a General Mode of Pleading is Proper 134

58. When General Pleading is Sufficient 135

59. What Particularity is Generally Required 135

60. Facts in Knowledge of Adversary 136

61. Inducement or Aggravation 136

62. Acts Regulated by Statute 138

63. What May Be Omitted—Matters Judicially Noticed 139

64. Matters in Anticipation 140

65. Matters Implied 141

66. Matters Presumed 142

67. Surplusage 142

68. Descriptive Averments 144

69. Repugnancy 145

70. Ambiguity or Doubt 146

XXII

TABLE OF CONTENTS



See. Page

71. Pleadings in the Alternative 14G

72. Duplicity in General 147

73. Inducement 148

74. Consequences of Duplicity 148

75. Pleadings to be True 149

76. Conformance to Customary Forms 150
PART THREE. OFFENSIVE PLEADINGS—THE

COMMON-LAW ACTIONS

CHAPTER 7. THE ACTION OF TRESPASS

77. Scope of the Action 152

78. Forms of the Declaration 154

79. Declaration in Trespass—Essential Allegations:

(1) In General 156

80. Declaration in Trespass—Essential Allegations:

(2) The Plaintiff’s Right, Title, Interest or Possession 156

81. Declaration in Trespass—Essential Allegations:

(3) The Defendant’s Wrongful Act 164



82. Declaration in Trespass—Essential Allegations:

(4) The Damages 170

83. Status Under Modern Codes, Practice Acts and Rules of Court 170

CHAPTER 8. TilE ACTION OF TRESPASS ON THE CASE

84. Scope of the Action 173

85. Case Distinguished From Trespass 176

86. Election Between Trespass and Case 181

87. Form of the Declaration in Trespass on the Case 182

88. Declaration in Trespass on the Case-Essential Allegations:

(1) In General 183

89. 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


CHAPTER 9. THE ACTION OF TROVER

97. Scope of the Action 206

98. Property Which May be Converted 207

99. Trover—Distinguished from and Concurrent with Other Actions 209

100. Form of the Declaration in Trover 211

nIH


TABLE OF CONTENTS

Sec. Page

101. Declaration in Trover—Essential Allegations:

(1) In General 211

102. Declaration in Trover—Essential Allegations:

(2) The Plaintiff’s Right, Title, Interest or Possession 212

103. Declaration in Trover—Essential Allegations:

(3) The Defendant’s Wrongful Act of Conversion 217

104. Declaration in Trover—Essential Allegations:

(4) The Damages 223

105. Status Under Modern Codes, Practice Acts and Rules of Court 223


CHAPTER 10. THE ACTION OF EJECTMENT

106. Scope of the Action 225

107. Ejectment—Distinguished From and Concurrent with Other

Actions 236

108. Forms of Declaration and Common Consent Rule 236

109. Declaration in Ejectment—Essential Allegations:

(1) In General 237

110. Declaration in Ejectment—Essential Allegations:

(2) The Plaintiff’s Right, Title, Interest or Possession 2’38

111. Declaration in Ejectment—Essential Allegations:

(3) The Wrongful Ouster or Dispossession 288

112. Declaration in Ejectment—Essential Allegations:

(4) The Damages 238

113. The Judgment in Ejectment 239

114. Declaration in Trespass for Mesne Profits—Essential Allegations:

(1) In General 239

115. Declaration in Trespass for Mesne Profits—Essential Allegations:

(2) The Plaintiff’s Right, Title, Interest or Possession 240

116. Declaration in Trespass for Mesne Profits—Essential Allegations:

(3) The Ouster or Ejeetment 241

117. Declaration in Trespass for Mesne Profits—Essential Allegations:

(4) The Damages 241

118. Status of Ejectment and Trespass for Mesne Profits Under Modern

Codes, Practice Acts and Rules of Court 241


CHAPTER 11. THE ACTION OF DETINUE

119. Scope of the Action 244

i20. Detinue—Distinguished From and Concurrent with Other Actions -. 247

121. Forms of Declaration and Judgment in Detinue 248

122. Declaration in Detinue—Essential Allegations:

(1) In General 249

123. Declaration in Detinue—Essential Allegations:

(2) The Plaintiff’s Right, Title, Interest or Possession 249

124. Declaration in Detinue—Essential Allegations:

(3) The Unlawful Detention 250

125. Declaration in Detinue—Essential Allegations:

(4) The Damages 251

126. Status Under Modern Codes, Practice Acts and Rules of Court 251
CHAPTER 12. THE ACTION OF REPLEVIN

121. Scope of the Action 253

128. Beplevin—Distinguished From and Concurrent with Other Actions - - 257

TABLE OF CONTENTS

See. Page

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


CHAPTER 13. THE ACTION OF DEBT

185. Scope of the Action 274

136. Debt—Distinguished From and Concurrent with Other Actions 278

137. Forms of Declarations 279

188. Declaration in Debt—Essential Allegations:

(1) In General 282

139. Declaration in Debt—Essential Allegations:

(2) In Debt on Simple (Executed) Contract 285

140. Declaration in Debt—Essential Allegations:

(3) In Debt on a Specialty 292

141. Declaration in Debt—Essential Allegations:

(4) In Debt on a Statute 295

142. Declaration in Debt—Essential Allegations:

(5) In Debt on a Judgment 297

143. Status Under Modern Codes, Practice Acts and Rules of Court 299

CHAPTER 14. THE ACTION OF COVENANT

144. Scope of the Action 303

145. Covenant—Distinguished From and Concurrent With Other

Actions 805

146. Form of Declaration in Covenant 306



147. Declaration in Covenant—Essential Allegations:

(1) In General 306

148. Declaration in Covenant—Essential Allegations:

(2) The Execution of the Covenant 306

149. Declaration in Covenant—Essential Allegations:

(3) The Promise 307

150. Declaration in Covenant—Essential Allegations:

(4) The Performance of Conditions Precedent 307

151. Declaration in Covenant—Essential Allegations:

(5) The Breach 307

152. Declaration in Covenant—Essential Allegations:

(6) The Damages 808

153. Status Under Modern Codes, Practice Acts and Rules of Court 308

CHAPTER 15. THE ACTION OF ACCOUNT

154. Scope of the Action 310

155. Account—Distinguished From and Concurrent with Other Actions - - 813

156. Form of Declaration in Account 314

fly

TABLE OF CONTENTS

Sec. Page

157. Declaration in Account or Account Render—Essential Allegations:

(1) In General 815

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 315

159. Declaration in Account or Account Render—Essential Allegations:

(3) The Refusal to Account or the Breach 316

160. Declaration in Account or Account Render—Essential Allegations:

(4) The Damages 316

161. Status Under Modern Codes, Practice Acts and Rules of Court 316



CHAPTER .16. THE ACTION OF SPECIAL ASSUMPSIT

162. Scope of the Action 318

163. Special Assumpsit—Distinguished From and Concurrent With Other

Actions 821

164. Form of Declaration in Special Assumpsit 322

165. Declaration in Special Assurnpsit—Essential Allegations:

(1) In General 323.

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 323

167. Declaration in Special Assumpsit—Essential Allegations:

(3) The Consideration 325

168. Declaration in Special Assumpsit—Essential Allegations:

(4) The Performance by Plaintiff of All Conditions Precedent - - 328

169. Declaration in Special Assumpsit—Essential Allegations:

(5) The Breach 332

170. Declaration in Special Assumpsit—Essential Allegations:

(6) The Damages 333

171. Status Under Modern Codes, Practice Acts and Rules of Court 334

CHAPTER 17. THE ACTION OF IN]3EBITATUS ASSUMPSIT

172. Scope of the Action 337

173. Express Contracts Which Do Not Exclude Indebitatus Assumpsit - - - 338

174. Indebitatus Assumpsit Distinguished From and Concurrent With

Other Actions 343

175. Forms of Declarations in Indebitatus Assumpsit 344

176. The Common Counts 347

177. Contracts of Record and Statutory Liabilities 360

178. Declaration in Indebitatus Assumpsit—Essential Allegations:

(1) In General 362

179. Declaration in Indebitatus Assumpsit—Essential Allegations:

(2) Statement of an Executed Consideration 362

180. Declaration in Indebitatus Assumpsit—Essential Allegations:

(3) The Promise 364

181. Declaration in Indebitatus Assumpsit—Essential Allegations:

(4) The Breach 364

182. Declaration in Indebitatus Assumpsit—Essential Allegations;

(6) The Damages 865

183. Status Under Modern Codes, Practice Acts and Rules of Court 365

xrvrI


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