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§ 6 (1705), the rule requiring the laying of Venue in the Body of the Plead­ing became an unmeaning form, the prac­tice of alleging the Venue in the margin hay-
Common Law, c. I, Venue and JurisdiCtion, 1 (New York, 1922).
Articles: Starke, The Venue of Actions of Trespass to

Land, 27 W.Va.L.Q. 301 (1921); Warner, Venue of

Civil Causes in Oregon, I Ore.Litev. 142 (1922);

Dobie, Venue in Civil Cases in the United States

District Court, 35 Yale L.J. 129 (1925); Blume, The

Place of Trial of Criminal Cases: Constitutional

Vicinage and Venue, in Civil Cases, 48 Mich.L.Rev.

1 (1949); Crumpacher, The Change of Venue Prob­lem, 20 Fed.L.J. 253 (1045); Blame, Actions Quasi

in Rem Under Section 1055, Title 25, U.S.C., 50

Mich.L.Rev. 1, 7 (1951); Stevens, Venue statutes:

Diagnosis and Proposed Cure, 49 Mich.L.Rev. 804

(1931).
5. 16 & 17 Car. II, e. 8(1664); 4 Anne, c. 16, § 6 (1705).

Sec. 20

FORMAL PARTS OF DECLARATION



85

ing been found sufficient for all practical pur­poses.6 But the practice continued to be ob­served nonetheless.

In the meantime the Jury had reached its third. state of development in which jurors ceased to be witnesses and became triers of facts, going on knowledge furnished by the evidence heard in open Court. With this de­velopment, an end was brought to the for­mer practice by the Rule of Hilary Term, 4 Wm. TV, (1834), which provided that in the future “the name of a county shall in all cases be stated in the margin of a Declaration

. - and no Venue shall be stated in the Body of the Declaration.” 7 And presently, under the more recent practice, but in accor­dance with the spirit and intent of this Rule, the Venue is usually set out at the Com­mencement of the Declaration, as appears in the form above.

However, in eases which required local de­.scription, the Venue was still to be laid in the Body of the Declaration.8 But the en­forcement of this rule did not call for the statement of a correct Venue except when the Action was Local, and in Transitory Ac-tons the Venue could be laid in any county, subject to objection by the adverse party.°
The Commencement

WHAT is termed the Commencement of the Declaration precedes the Statement of the Cause of Action or Body of the Declaration.


4 Stephen, A Treatise on the Principles of Pleading, e. II, Of the Principal Rules of Pleading, 272, 273 (3d ed. by Tyler, Washington, D, C. 1892).
7. Rule 8, Reported in Reppy, Introduction to Civil Procedure, Appendix B, 787, 792 (Buffalo 1954).

See, also, Harris v. Cocoanut Grove Development Co.,



63 Fla. 175, 59 So. 11 (1912); Henry v. Spltler, 67

Fla. 146, 64 So. 745 (1914), annotated in Ann.Cas.

1916E, 1267.
S. 1 Chitty, Pleading and Parties to Actions, with Precedents, c. II, Of the Declaration, 276 (16th Am. ed. by Perkins, Springfleld 1885).
9- Stephen, A Treatise on the Principles of Pleading, ~. II, Of the Principal Rules of Pleading, 274 (3d ed. by Tyler, Washington, D. C. 1892).

It comprises the Parties, correctly named;

the Mode in which the defendant has been brought into Court, Arrested, Served with Process, Attached or Summoned; the Capac­ity in which the parties sue and are sued, whether as an individual, as a corporation, or in a representative character as executor or receiver, or if an infant, by a guardian, or next friend; and the Form of Action, as, for example, 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, for it is here that the plaintiff states the facts showing his cause of action. 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.”” Of course the essential ele­ments of any claim of relief or remedial right will vary from action to action. But, on analysis, the pleader will find that the facts prescribed by the substantive law as necessary to constitute a cause of action in a given case, may be classified under three heads: (1) The plaintiff’s right or title; (2) The defendant’s wrongful act violating that right or title; (3) The consequent damage, whether nominal or substantial. And, of course, the facts constituting the cause of action should be stated with certainty and precision, and in their natural order, so as to disclose the three elements essential to every cause of action, to wit, the right, the wrongful act and the damages)


The Conclusion

THE Conclusion of a Declaration is the Formal Statement at the end, following the


10. See Beppy, Introduction to Civil Procedure, C. II, § 2, 92 (Buffalo 1954).
11. Gould, A Treatise on the Principles of Pleading, e. 1, Forms of Actions, 3 (6th ed. by Will, Albany 1909).
12. 1 Saunders, Pleading and Evidence in Civil Ac­tions, Declaration, ‘416 (Philadelphia 1837).

86

DECLARATION_FORM



Ch, 4

Body, or Statement of the Cause of Action.



It is, “to the plaintiff’s damage of ~

and therefore he brings his suit,” etc. This “ad damnum” clause is properly a part of the conclusion in all Personal and Mixed Ac­tions. By the Common Law Procedure Act of 1852,13 a Specific Form of Conclusion was prescribed.
The Production of Suit

THE Production of the plaintiff’s suit (secta), by which the plaintiff was required to present proof of his Declaration at once, and even before it was called into question upon the pleading, is an example of one of those instances, not infrequently noticeable in Common Law Pleading, where the form of an old procedure is retained, long after the reason for its existence has been swept away. Anciently, in the primitive period of Com­mon Law Procedure when Pleadings were still made Orally, and Trial by Battle and Ordeal was still in vogue, the plaintiff was required to produce his proof, or his sect a— that is, a suite or train of followers prepared to confirm his Allegations. Although the practice has long been discontinued, the orig­inal formula there used to announce the plaintiff’s readiness still remains with us. In consequence, in all Common Law Actions it is still customary to conclude the Declara­tion with the phrase “and thcrefore he brings his suit.” 14


13. SectIon 59, 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, and £ for their detention.”
14. 3 Blackstone, Commentaries on the Laws of Eng­]and, c. 20, 295 (7th ed. Oxford, 1775); Walter v. Laughton, 10 Mod. 253, 88 Eng.Rep. 715 (1714),
It should be observed that the plaintiff brings, not

this suit, but his suit, a following of witnesses. 2

Polloek & Maitland, History of English Law, Bk. II,

603, 604 (Cambridge, 1895); flayer, Preliminary

Treatise on Evidence at the common Law, c. I, 12

(Boston 1898).

At Common Law, according to Martin,” the signature of counsel was not required, and this rule was enacted into statutory form by the Common Law Procedure Act of

1852.”
THE ACTUAL STATEMENT OF THE CAUSE OF ACTION


21. The Declaration must state distinctly and with certainty every fact that is essential to the plaintiff’s prima facie case. No Essen­tial Allegations can be imported into the Dec­laration by inference or intendment. The principal points to he shown in the statement of a cause of action are:

(I) The plaintiff’s right;


(II) The defendant’s wrongful act violat­ing that right;
(III) The consequent damages.
In General

THE term “cause of action” 17 is much used in pleading and procedure, but it eludes


15. Civil Procedure at Common Law, c. I, Introduc­tory, Art. VIII, Declaration, ~ 33, p. 29 (St. Paul, 1905).
16. Section 85.
fl~ In general, on what constitutes a Cause of Action at Common Law, under Modern Codes and Practice Acts, and under the New Federal Rules of Civil Procedure, see:
Articles: Howe, Misjoinder of Causes of Action in Il­linois, 14 1Il.L.Rev. 581 (1920); Clark, The Code Cause of Action, 33 Yale U. 817 (1924) McCaskill, Actions and Causes of Action, 34 Yale LJ. 614 (1925); Clark, Ancient Writs and Modern Causes of Action, 34 Yale L.J. 879 (1925); Clark, Trial of Actions Under the Code, 11 Cornell L.Q. 482 (1928); Blume. A Rational Theory for Joinder of Causes, etc., 243 Mich.L.Rev. 1, 41 (1927); Harris, What is a Cause of Action, IC Calif .L.Rev. 459 (1028); Gavitt, The Code Cause of Action; Joinder and Counter­claim, 30 Col.L.Rev. 502 (1931); Id., 6 Irid.L.J. 203, 205 (1931); Arnold, The Code Cause of Action Clarified by United States Supreme Court, 10 A.11. A.J. 215 (1933); Gavitt, A Pragmatic Definition” of the Cause of Action, 82 U. of Pa.L.Rev. 129 (1933); Clark, The Causes of Action, 82 U. of Pa.L.Eev. 354 (1934); Gavltt, The Cause of Action—A Reply. 82 U. of Pa.L.Rev. 095 (1934); Wheaton, Manner of Stating a Cause of Action, 20 Cornell LQ. 185 (1935); Wheaton, The Code “Cause of Action”; Its

Sec. 21

STATEMENT OF CAUSE OF ACTION

87

exact definition.18 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, or some transac­tion from which a right to remedial relief arises. 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, whether of contract, property or tort. At Common Law, therefore, the question as to whether a plaintiff had stated a good cause of action did not turn on the facts of a par­ticular transaction, but on whether the plain­tiff or his attorney had properly diagnosed the legal effect of the facts, or, to put the matter in another way, whether the Declara­tion stated a cause of action which fell with­in the theory of liability represented by the


Definition, 22 Cornell L.Q. 1 (1936); McCaskiIl, The Elusive Cause of Action, 4 U. of ChLL.Rev. 281 (1937); Wheaton, Causes of Action Blended, 22 Minn,U.Rev. 498 (1938); IsicCaskill, Easy Pleading, 35 Ill.L.Rev. 28 (1940); Clineburg, Splitting Cause of Action, 19 Neb.LBull. 156 (1940); McCask’dl, Jury Demands in the New Federal Procedure, 88 U. of Pa,L.Rev. 315 (1940); Clark, Simplified Pleading, 29 Iowa U.Rev. 272 (1942); illume, The Scope of a Civil Action, 42 Mich.L.Rev. 257 (1943) ; McNish, Joinder and Splitting of Causes of Action in Ne­braska, 26 Neb.U.Bev. 42 (194W.
Comments: The Harlan Fiske Stone Moot Court Com­petition, 25 CoLL,Rev. 630 (1925); Pleading: Equi­ties Affecting Legal Causes of Action as Defenses or Counterclaims: Mode of Trial of Such Issues, 11 Cornell U.Q. 3943 (1926); Pleading—Splitting Causes of Action—Counterclaim in Court of Limited Ju­risdiction, 36 Yale U.J. 883 (1927).

On the subject of the Action under the Code, see ar­ticle by Wheaton, A Study of the Statutes which Contain the Term “Subject of Action,’ 18 Cornell L.



Q. 20 (1932); Id., 18 Cornell L.Q. 232 (1933).
18. Sec Read v. Brown, 22 Q.B.Div. 128 (1888).
And that “The Cause of Action is the thing done or omitted to be done, which confers the flight to Sue; that is, the wrong against the plaintiff, which caused a grievance for which the Law gives a Remedy,” see, Greene v. Fish Furniture Co., 272 III. 148, 156, 111 ItE. 725 (1916). See, also, Pomeroy, Code Remedies, 4~ 340, 412 (4th ed. by Bogle, Boston 1904);

Eote: The Meaning of the Words “Cause of Ac­tion” as Used in the New York Codes, 22 Col.L.Rev. ‘61 (1922).

Form of Action selected to vindicate an al­leged legal right.
The Declaration; A Legal Syllogism
WITH this working definition in mind, we are now in a position to undertake the Fram­ing of a Declaration in which a cause of ac­tion will be alleged. In this connection it should be remembered that a Declaration is a Syllogism with the Major Premise left out. What is meant by this? 20 It is this: since every liability consist of two elements—a given combination of facts and events, 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. If these two elements are established, Judgment for the plaintiff will be entered. Such Judgment naturally follows from certain premises of fact and of law, 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 property, damages may be re­covered against one who rides over my corn, 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;
Conclusion: Therefore, the plaintiff right of action against defendant in he may recover damages against the

ID- “Every action is brought in order to obtain some particular result which is termed the remedy. This final result is not the ‘Cause of the Action:’ it is rather the ‘Object of the Action,’ “ Wildman v. Wildman, 70 Conn. 700, 707, 41 A. 1, 2 (1898).


And a “Cause of Actioa” should be distinguished from an “Action”, the former consisting of the Facts which give rise to the Action, the latter being a Proceeding in Court. Ponaeroy, Code Remedies, e. III, ~ 347 (4th ed. by logic, Boston, 1904).
80. See Lamphear v. Buekingham, 33 Conn. 237 (1868).

(3)


has a

which


defendant.

88 DECLARATION—FORM Cli. 4


If the defendant seeks to defeat the defend- or in tort. The plaintiff must allege that he ant’s alleged liability by disputing the Major had a right, 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, he may do so by demur- tion of Trespass quare clausum fregit, or ring, which, in effect, says there is no such that he had a General or Special property in-Rule of Law as that relied on by the plain- terest therein,2’ and was entitled to the pos­tiff~ if the defendant seeks to defeat the

plaintiff by disputing the combination of 21. In the past Quarter century there have been re­

peated efforts on the part of legal scholars to clar­

facts or events relied upon by the plaintiff, ify legal thinking by promoting a better under-


he may do so by pleading some Form of standing of legal terminology used In the process of

Traverse, such as the General Issue, which analyzing a legal problem. One of the earliest ef­

forts was Professor Wesley Neweomb Eohfeld’s

denies all the material allegations in the work on Fundamental Legal Conceptions as Applied


plaintiff’s Declaration. If both ‘the Rule of in Judicial Reasoning and Other Legal Essays (New Law and the Facts relied upon by the plain- Haven, 1923). In an article by Professor Arthur L.

Clorbin, Legal Analysis and Terminology, 29 tale L..

tiff turn out to be true, the conclusion or J. 183 (1919), following the suggestions of Hohfeld,
the Judgment of the Court inevitably and an attempt was made to define legal relations in

logically follows, unless the defendant seeks terms of Right, Duty, Privilege, No-Right, Power,

Liability, Immunity, and Disability, More recently,

to avoid the alleged liability by pleading IR Professor George Goble, in an article entitled, A

Confession and Avoidance, If, however, the Redefinition or Basic Legal Terms, 35 CoLLitey. plaintiff fails to establish the Major or Minor 535 (1935), takes the view that our basic legal

Premise, his right of action fails, latlonships are embraced within the term, Power-

Liability, that is, that all significant legal facts

It should now be observed, however, that necessarily Involve power. The term powers covers since the Court takes Judicial Notice of the those legal relations as viewed by the controllint

party and the term Liability Includes the same re­

Rules of Substantive Law of the jurisdiction lationship as viewed by the party controlled.
over which it presides, the Rule of Law or The Editors of the Restatement of the Law of Prop-Major Premise is not stated lxi the Declara- erty, under the auspices of the American Law In­tion; only the Facts, or Minor Premise, and stitute, were confronted with this same problem of

terminology. The general rule Is that an action of

the Conclusion. And hence the reason why Trespass may be maintained by any person bavinr
a Declaration is said to be a Syllogism with a general or special property interest In the proper-the Major Premise left out. And now, with ty In dispute. This has been construed to include

actual physical possession, constructive possession,

the syllogistic character of a Declaration in or a right to immediate possession at the time the
view, we may consider the statement of the action began. But as used In Section 5 of the Re-

plaintiff’s right, the defendant’s wrongful act, statement of the Law of Property, the word “inter­

est,” except for the Restatement of Torts, has been

and the consequent damages. used “generically to Include varying aggregates of



The Plaintiff’s Right rights, privileges, powers and immunities and dis­

tributively to mean any one of them.” As applied

IT is of the essence of a cause of action to Trespass, however, the term “interest,” although.

that some right of the plaintiff should have having several other meanings, usually refers to a

legal relation or relations; as applied to the gcn-•

been violated, and it is therefore necessary end field of Torts, it denotes any human desire.


for the plaintiff to show a right. Thus, in In the field of intentional Torts, SectIon 216 of the an action of Special Assumpsit for the breach Restatement of the Law of Torts, Second Series, of a contract, 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 plaintiff must allege a val- else such control on his own behalf, or on behalf
id agreement between himself and the clé- of another. 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. control, although be is no longer In physical
And the same is true of an action CX (1CiiCtO control, If he has not abandoned It, and no other

Sec. 21



STATEMENT OF CAUSE OF ACTION

89

session of the property, in an action of Tro— ver.


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, The injury as well as the right must, therefore, be alleged in the Declaration. Thus, in an Action for the Breach of a Contract, it is not only necessary to show the existence of the contract, bind­ing the defendant to perform or forbear some act for the plaintiff, but it is also necessary to show that the defendant has violated some duty arising from the contract; that is, that the performance of the contract became due, and that he failed to perform it. This ap­pears from the Declaration given above. And, so likewise, in an Action of Trespass quare clauswn fregU the trespass by the de­fendant must be shown; and in an Action of Trover a showing of conversion by the de­fendant is essential.


The Consequent Damages
IT is not only necessary to show that the defendant has violated some right of the plaintiff, but it is also necessary to go fur­ther and show that the plaintiff has been damaged thereby, for injury without dam­age (“injurkz sine dantno”) does not give rise to a cause of action.22 In most cases,
person has obtained possession; or has the right as against all persons to the immediate physical Con­trol of a chattel, if no other person is in possession.
Section 157 defines a person in possession of land as Including one who Is in occupancy of land with in­tent to control It; or has been but no longer is In occupancy of land with intent to control It, if, after be has ceased his occupancy without abandoning the land, no other person has obtained possession; or has the right as against all persons, to immediate occupancy of land, If no other person is In possession.
The quoted matter in this note is printed by pennis­slon of the American Law Institute.
2L That In Case for Slander damages is the gist of the action, see Pollard v. Lyon, 91 U.S. 225, 236, 23

where a wrong is shown, nominal damages may be recovered. The fact, however, that damage will be presumed in any given case, does not dispense with the necessity of an averment of damage in the Declaration.


What is a Fact

BUT when you have found that you must allege a right, a violation of that right and damages, as an incident of stating a cause of action, 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, a matter to which we may now address our­selves.


In order to frame a good declaration in which a good cause of action is stated, a pleader must consider first, what facts must be stated, and second, in what manner and form should such facts, whatever their char­acter, be stated?
And these inquiries raise the question as to what, then, is a fact. A fact may be said to be anything of which a past or present ex­istence may be asserted. And, for purposes of legal analysis, there are ordinary facts and extraordinary facts of law, Ordinary facts may be separated into two groups, ulti­mate and evidentiary facts,
Ultimate Fact Defined

AN ultimate fact 23 is any fact to which the substantive law attaches legal conse­LEd. 305 (1876); so also in a private action for a

public nuisance, Swain & Son v. Chicago 13. & 0. It. Co., 252 III. 622, 97 N.E. 247 (1911).

And in Treusch v. Kamka, 83 Md. 274 (1885), where the Declaration alleged no Damages from negli­gence, it was held fatal on Demurrer.
23- In general, on what facts must be ailei~ed nt Com­mon Law and under modern codes and Practice Acts, see
Articles: Cook, Statement of Fact in Pleading Under the Codes, 21 CoI.Litev 418 (1921); Dowdall, Plead­ing “Material Facts,” 77 U. of I’a.L.Ecv. 945 (1929); ‘Wheaton, Manner of Stating In Cause of Action, 20 Cornell L.Q. 185 (1935); Oavitt, Legal Conclusions, 16 MinnLRev. 378 (1932); Cook, “Facts” and

90

DECLARATION—FORM

Cli. 4

quences. It sometimes may be inferred from the statement of a sufficiently large number of evidentiary facts. Thus, for example, if a plaintiff wants to institute an Action of Ejectment against a defendant, 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. There he discovers that he must allege Right or Title, Wrongful Act of Ejectment, and Damages. If, in draft­ing his Declaration, the plaintiff omits an Al— legation required by the Substantive Law, the defect is available on Demurrer at the Pleading Stage, on Motion in Arrest of Judg­ment, after Verdict and before Judgment, and on Writ of Error, after Final Judgment, under the general principle that ordinarily a Substantive Defect, or a failure to state a material, or ultimate fact is always available at any stage of the proceedings.


Evidentiary Fact Defined

AN evidentiary fact is a fact to which the Substantive Law does not attach legal con­sequences, but from which, if stated in suffi­cient detail, an ultimate fact may sometimes be inferred. Thus, to illustrate, in the Ac­tion of Ejectment referred to above, let us suppose that the plaintiff alleged, by way of title, that he had a “grant deed” of Black-acre. The Substantive Law of real property requires that in order for the plaintiff to state a good cause of action, he must allege that he owned, possessed, had an immediate right to possession, or was seized of Black-acre. As a “grant deed” of Blackacre is not title, but only evidence of title, the plaintiff’s Declaration is defective in having stated an evidentiary fact, whereas he should have al­leged the ultimate fact that he was “seized”
“Statements of Fact”, 4 U.Chi.L,Rev. (1937); Morris, Law and Feet, 55 Harv.L,Bev. 1303 (1942).
Annotation: Pleading Duress as a Conclusion, 119 A. Lii. 997 (1939).

of Blackacre.°4 Stating an evidentiary fact violates the Rule of Pleading that Ultimate Facts must be stated, and such violation cre­ates a Defect in Form, which may be reach­ed by Special Demurrer.25


ULTIMATE AND EVIDENTIARY FACTS

22. The Ultimate and Operative Facts should be pleaded, not Evidentiaty Facts and not Conclusions of Law.


WITH these distinctions in mind, 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. The General Common Law Rule is that the plain­tiff, in order to state a good cause of action in his Declaration, must allege ultimate facts, and not evidentiary facts, and not Con­clusions of Law)°
24. See McCaughcy v. Schuctte, 117 Cal. 223, 46 P.

666, 59 Am.St.Rep. 176 (1896).


25. See Camp & Bros. v. Hall, $9 Pla. 535, 568, 22 So.
792, 796 (1897), where it was contended that the Declaration alleged Evideatiary as opposed to Ulti­mate Pacts, the CourtS in discussing the question as to whether stating Evidentiary Pacts was a defect in form or in substance, declared: “This latter con­teation Is no doubt true, but as the Evidentiary Facts alleged are sufficient, if true, to establish conclusively the Ultimate Pacts, the defect In this respect is one of form, and not one of substance. If the Evidentiary Facts alleged were Insufficient in Law to Establish the Ultimate Facts, the defect would he one of substance, proper to be reached by General Demurrer; but if the objection be simply to this manner of Pleading the Ultimate Facts, tbe defect is one of form, and could formerly be reached by Special Demurrer only.”
See, also, on Evidentiary Facts, DeCordova v. San viille, 165 App.Div. 128, 150 N.Y.Supp. 709 (1914), reversed in 214 N.Y. 662, 108 N.E. 1092 (1915).
20. “The only question, then, Is whether the Com­plaints, all of which are in substance as above stat­ed, contain what is technically a Sufficient State­ment of a Cause of Action. The Sufficiency of the Pleadings Is to be determined by the New York Code of Procedure. This requires a ‘plain and con­cise Statement of the Facts constituting a Cause of Action,’ Section 43t But the Rule of Pleading at Common Law was the same, viz., that Facts, not mere Conclusions of Law, were to be stated. I Chit P1, 214; Allen v. Patterson, 7 N.Y. 478.” Brown, 3.. In Muser v. Robertson, 17 F. 500, 502 (1883).

Decision: New York News Pub. Co. vNatlonal Steam-


ship Co., Ltd., 148 N.Y. 39, 42 N.E. 514 (1895).

See. 22


ULTIMATE M~1) EVIDENTIARY FACTS

91

The process of differentiating, in the con­fused history of a case, the Ultimate or Om erative Facts from the probative and collat­eral circumstances involved, is the first step in the diagnosis of the case, to discover whether the plaintiff has a right of action, and also for the intelligent statement of the cause of action in the Declaration. Only the essential facts should be alleged which form the basis of the claim for relief. This ex­cludes the details and particulars of evidence by which these fundamental points are to be established. Some observance of this dis­tinction is necessary if the pleadings are to make the issues clear, simple and certain. The subordinate facts, which make up the probative matter, the casual details and dra­matic circumstances, may vary indefinitely, but the “Ultimate”, the “Material” or “Issu­able” Facts cannot be omitted without de­stroying the plaintiff’s cause of action or the defendant’s Defense, as the case may be.


As observed earlier, it is a well-settled Rule of Pleading that it is never necessary to set forth mere Matters of Evidence.27 In other
27. English: rlowman’s Case. 9 Coke Ia, Tb, 77 Eng. Rep. 735, 743 k1583—84); Jenny v. Jenny, T.ltaym. 8, 83 Eng.Bep. 4 (1660); Groenvelt -cc Burnell, Carth.

491, 90 Eng.Rep. 1000, 1017 (1700-01); Eaton v. Southby, Willes 131, 125 Eng.Rep. 1094 (1738); Wil­hams v. WIlcox, S Ad. & ID. 314, 831, 112 Eng.Rep­856, 863 (1838); Bayaes v, Brewster, 1 Gale & D. 674 (1842); Indiana: State ex rel. Anderson v. Leonard, 6 Blac’kf. (tad.) 173 (1842); New Hampshire: Wa­triss v. Pierce, 36 N.H. 232 (1858); SmIth v. Wig-gin, Si Nil. 156 (1871); New York: Church v. Gil-man, 15 Wend. (N~Y.) 656 (1836); Fidler v. Delevan, 20 Wend. (N.Y.) 57 (1838); Pennsylvania: Hartman v. Keystone Ins. Co., 21 Pa. 466 (1853). But see, Croft v. Rains, 10 Tex. 520 (1853), as to a declara­ttoa otherwise good.


The rule under consideration is not noticed in Equity Pleading strictly, It being there often essential that the Facts which are the Subject of the Action, be stated in detail. Story, Commentaries on Equity Pleading, c. V ~ 265a, n. 1 (9th S. by Gould, Boston, 1879).

But in Code Pleading the Rule is fully recognized. though not expressly prescribed; and, as the Codes retain but one form of action for both legal and non-legal remedies, the application of the Rule Is

words, although a particular fact may be of the essence of a party’s cause of Action or Defense, so that a statement of it is indis­pensable, it still is not necessary, in alleging it, to state such circumstances as merely tend to prove the tnath of the fact.
The reason of the rule is evident, if we re­vert to the general object which all the rules, tending to certainty, contemplate, that is, the attainment of a certain issue. This implies, as has been shown, a development of the question in controversy in a specific shape; but so that that object be attained, there is, in general, no necessity for further minute­ness in the pleading; and therefore, those subordinate facts, which go to make up the evidence by which the affirmative or nega­tive of the issue is to be established, are not required to be alleged, and hence may be brought forward for the first time at the Trial, when the issue comes to be decided.
The Ultimate or Operative Facts are the Facts required by the Substantive Law; it is these Facts which the party needs to estab­lish to win his case)8 They must be facts, definite and concrete enough to direct atten­tion to the basis or ground of the plaintiff’s legal contentions. But at the same time, they must reduce the case to its essentials. For instance, if the pleader wishes to allege that the railroad contracted to carry the plaintiff as a passenger on its train with his
sometimes difficult. See Bliss, Law of Pleading Un­der the Codes of Civil Procedure, e. XIII, Rules Governing the Statement, Rule V, Evidence Should Not be Pleaded, 323, 324 (34 ed. St. Paul 1894).
25. “For the Purpose of Pleading only the ‘Ultimate Fact to be proved need be stated. The circum­stances whith tend to prove the Ultimate Fact can be used for Purposes of Evidence, but they have no place in the Pleadings.” McAllister v. Kuhn, 90 U. 8. 87, 24 L.Ed. 615 (1877). See also, Steuben Coun­ty Bank v. Mathewson, 5 Hill (Ni.) 249 (1843),
It is the office of a pleading to allege the ultimate facts. Hence, 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. Mabaffey v. 3. Ia. RumS barger Lumber Co., 71 W.Va. 175, 76 S.E. 182 (1912).

baggage, 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, 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, as this would cre­ate an immaterial issue. And if the plaintiff wishes to set up that he is the owner of cer­tain land, he should i-iot set forth the links in his chain of title, for, as we have seen, this is evidentiary matter; he should allege that he is seized of the land in question, as seisin is the Ultimate or Material Fact to which the law of real property attaches the legal consequences of ownership, which the plain­tiff is seeking to establish against the de­fenthnt.


ULTIMATE FACTS AND CONCLUSIONS

OF LAW
23. The Averments in the plaintiff’s Dec­laration or the defendant’s Defense should he 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.
THE Averment of the Operative Facts, es­sential to constitute a prima facic Cause of Action, must be Specific and set forth the Concrete Facts from which the Conclusions follow. A Declaration which merely states Legal Conclusions is insufficient.29 General
29. It is the Duty of the Courts to declare the con­clusions, nnd of the parties to state the premises, Little York Gold-washing & Water Co. v. Keyes, 90 U.S. 199, 24 LEd. 656; 21 R.C.L. 441 (1577).

A Plea alleging mere Conclusions of Law, without al­leging facts from which those conclusions are

sought to be drawn, 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, was properly rejected. Cot v, Hagan, 125 Va. 656, 100 S.E. 666 (1919).

Cli. 4
Allegations of Fraud, without setting forth the Specific Acts which constitute Fraud, are insufficient1° The Allegations should be Specific, and the facts stated with particular­ity and certainty. The defendant is entitled to know the ground specified on which the Charge is made.


Statements as to the validity or invalidity of certain transactions, the characterization of acts or conduct as negligent ~‘ or wrong­I Boyce (Del.) 580, 76 A. 475 (1910); Helmiek v. Car­ter, 171 Ill.App. 23 (1912); Heinman v. Felder, 17$

Iowa 740, 100 NW. 234 (1016); Stonegap Colliery

Co. v. Hamilton, 119 Va. 271, 80 SE. 305 (1916);

Boston & M. B. 11. v. County Com’rs of Middlesex

Co., 239 Mass. 127, 131 N.E. 283 (1921).
And an Allegation of “Valuable Consideration” is a conclusion in Common-Law Pleading. Kean v. Mitchell, 13 Mich. 207 (1565). Cf. California Pack­ing Corporation v. Keiley Storage and Distributing Co., 228 N.Y. 40, 126 N.E. 269 (1920); Pomeroy, Code Remedies, e. III, General Prineipics of Pleading, 562 (4th ed. by Bogle, Boston, 1904).
An Allegation that a certain act was within the scope of employment is a Conclusion of Law. Freidlander v. RapIer, 38 App.D.C. 208 (1912); Sharp v. State, for Use of Brown, 135 MU. 551, 109 A 43-1 (1020); Boston & M. H. It. v. County Com’rs of Wddlescv County, 230 Mass. 127, 131 N.E. 283 (1921); People v. Ryder, 12 N.Y. 433 (1855).
An Allegation that a municipal corporation “became entitled” to divert water from a river is a Conclu­sion of Law. It depends for its soundness upon un­disclosed or unstated facts, and the Court cannot read into the Pleading the Pacts necessary to raise the issue intended to be raised. Legal Conclusions, 21 R,C.L. 440 (1918),

For many illustrations of Allegations held to be Con­clusions of Law, see Pomeroy, Code Remedies, c. III, General Principles of Pleading, 564, 565, 566 (4th ed. by Bogle, Boston, 1904); 31 Cyc. 52—05.



30. Forbes v. Ft. Lauderdale Mercantile Co., 90 So,

821 (Fla.1922) (Facts constituting the Fraud should be Specifically Pleaded). See, also, on Fraud, Flor­ida Life Ins. Co. v. Dillon, 63 Fla. 140, 58 So. 0-13 (1912).


31. That tIle Act must be shown to be negligent see

Wright v. Atlantic Coast Line It. Co., 110 Va. 670,

66 SM. 848 (1910), annotated in 25 LEA. (N,5,) 072

(1910). 19 Ann.Cas. 439 (1910); Wilson v. Guyn’i­dotte Timber Co., 70 W.Va. 602, 74 SE. 870 (1912~.

See, also, Illinois Steel Co. v. Ostrowakl, 194 III.

376, 384, 62 N.E. 822 (1902).

92 DECLARATION—FORM

That the best Pleading Is that which states Facts and

not Conclusions of Law, see: Campbell v. Walker,

A Declaration alleging the operative facts specifically.

Instead of generically charging negligence was cor­

Sec. 23


ULTIMATE FACTS AND CONCLUSIONS

93

and the existence of a legal duty or ob­ligation are often mere Conclusions. A state­ment that the defendant is indebted to the



plaintiff in a certain sum gives no facts to charge the defendant. In Common-Law Pleading, 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. In re­ferring to this tendency toward generality in Pleading, David Dudley Field said of the Common Counts: “They (the Courts and the Lawyers) made the rules and they defend them, as a means of eliciting the precise point of fact in dispute between the parties; and they contrive every means in their power to conceal it, under forms the most general and unmeaning that can be imagined.” a In­stead of stating the concrete facts of the claim, a Common Count states only Conclu­sions of Law, the mere Averment that the defendant is indebted for this or that. This does not disclose the real nature of the lia­bility, or assist in analyzing and presenting the Issues of Law and Fact upon which the indebtedness depends.
The General Issues at Common Law are usually denials of Legal Conclusions instead of Denials of the Facts from which the lia­bility is inferred; e.g. nil debet, or Not In­debted.
It is not always easy to distinguish the de­tails of evidence, on the one hand, and Con­clusions of Law, on the other, from the op­erative or Issuable Facts, upon which the right to relief depends. It is often a matter
reetly sustained. Camp & Bros. v. Hall, 39 FIt 533, 568, 22 So. 792, 796 (1897). See, also, Wlnhelm v. FIeld, 107 IILApp. 145, 161 (1903).
32. In Lefkovitz V. City of Chicago, 238 IlL 23, 87 N. B. 58 (1909), it was held that Averments by the plaintiff that obstructions were “wrongfully” placed in a street, and permitted to remain there an “unrea­aenable” time, were Coneluslonu of Law.
33. David Dudley Field: What shall be done with the Practice of the Courts? 1 Speeches, Arguments and Miscellaneous Papers 236 (New York, 1884).

of degree.3’ While the pleading must have certainty and particularity in the Averment of Facts, a General Mode of Pleading is often sufficient as to certain matters, and no great­er particularity is required than the nature of the sort of thing described will conveni­ently admit of. “The Rules of Pleading de­termining whether Allegations must be Gen­eric or Specific—and, if the latter, to what degree—are, like other Rules of Law, based on considerations of policy and convenience. Thus, the facts constituting fraud, are fre­quently required to be alleged in compara­tively detailed form,” ~


In many situations a single convenient term is employed to designate (generically)

certain miscellaneous Operative Facts, such

as ownership or possession, which is a meth­od of stating their net force and effect in law, without alleging the specific circum­stances. It is sufficient to allege that the plaintiff is the owner of certain land or that he was possessed of certain chattels.36 On the other hand, it would be a Conclusion of


31. Sec article by Cook, Statements of Fact in Plead­ing Under the Codes, 21 Col.L.Rev. 410 (1021); Itoh­feld, Fundamental Legal Conceptions, 23 Yale L.J. 16, 25 (1913).

A Statement of an Ultimate Fact In Pleading is not objectionable as a Conclusion of Law, as an “Ulti­mate Fact” is necessarily a conclusion from inter’ mediate and evidentiary facts. Williams v. Penin­sula Grocery Co., 73 Fla. 937, 75 So. 517 (1917).


And Avernients must be sufficiently specific, so as to disclose not the minute particulars, but the real sub­stance of the facts making up the case. Mair v. Rio Grande Rubber Estates, Ltd., [1913] A.C. 853, 883, 864.
35. Rohfeld, Fundamental Legal Conceptions, 23 laIc Li. 16, 27 Note (1918), where operative facts are contrasted with evidential facts.

3°. That a general Allegation of seislu or of owner­ship Is an Averment of an ultimate fact, and not a Conclusion of Law, see Sheffield sat. Bank ‘v. Cor­inth Bank & Trust Co., 196 Ala. 275, 72 So. 127 (1916); nail v. Folinar, 199 Ala. 590, 75 So. 172 (1917); Payne v. Treadwell, 16 Cal. 220 (18*30); Cheda v. Sodkio, 173 Cal. 7, 158 P. 1025 (1916); Fuller v. Fuller, ITS Cal. 637, 169 P. 869 (1917); Gartlan v, C. A. Hooper & Co., 177 Cal. 414, 170 F. 1115 (1918).

Law to allege that the plaintiff not entitled to the possession.37

would be a Conclusion of Law to allege that it was the defendant’s duty to erect guards about a certain excavation, the facts from which that duty might be inferred by the Court being absent.38 And an Allegation that a deed was “procured by fraud,” or that a certain sum is now “due,” would consti­tute a legal Conclusion.39 There is a conflict of authority as to whether it is proper to

Plead Generally that defendant “negligent­ly” collided with the plaintiff,49 or whether the Special Circumstances from which neg­


37. An Allegation ‘that said plaintiff has no right, claim or title to the said painting or picture, and is not entitled to the ownership or possession of the same,” is a Conclusion of Law. Allen Clark Co. v. Francovich, 42 Nev. 321, 176 P. 259 (1918).
38. An Allegation that it was the dcfenda]lt’s duty to do certain things was an Averme]It of a Conclusion, it being necessary in pleading Duty to allege Facts from which the Law will raise the Duty. New Staunton Coal Oo. v, Fromm, 286 Iii. 254, 121 N. B. 594 (1918); Bolt v. City of Molino, 196 Ill.App. 235 (1915); Jacobson v. Barney, 200 1]l.App. 96 (1915); Sanboeuf v. Murphy Const. Co., 202 Ill.App. 548 (1915); Greinke v. Chicago City fly. Co., 234 III. 564, 567, 85 N.E. 327 (1908); MeAndrews V. Chi­cago, L. S. & E. B. Co., 222 Ill. 232, 230, 78 N.E. 603 (1900).
On facts which raise a duty, see Schueler v. Mueller,

193 111. 402, 61 N.E. 1044, (1901); 31 Cyc. 52.


The existence of a duty must be shown by Facts al­leged in the Declaration, and though the Breach of the Duty may be Averred by way of Conclusion, the existence of the duty may not be so alleged. Birm­ingham Ry, Light & Power Co. v. Littleton, 201 Ala. 141, 77 So. 565 (1917); Alabama Fuel & Iron Co. v. flush, 204 Ala. 658, 86 So. 541 (1920).
39. Doose V. Dooso, 300 Ill. 134, 133 N.E. 49 (1021);

Loomis v. Jackson, C W.Va. 613 (1873); First Nat.

Bank of Sutton v. Grosshans, 61 Neb. 575, 85 N.W.

542 (1901) (Fraud); Creeey v. Jay, 40 Or. 28, 66 P.


295 (1901) (money duc).

“The only real question is Whether is it desirable to have a more specific description of the facts upon which the plaintiff relies.” Cook, Statements of Fact in Pleading Under the Codes, 21 Col.L.Rev. 420 (1921).


40. It is necessary only to allege negligence by Gen­eral Averment that the defendant did the Particu­lar Act damaging the plaintiff, Grossetti v. Sweasey,

Ch. 4


ligence might be inferred should be set out

concretely and in detail.4

SEVERAL COUNTS IN THE

SAME DECLARATION

24. A Count is a separate and independent statement of the material facts constituting a Cause of Action. A Declaration may include several Counts, each Count, in such a case, being regarded as a Separate Declaration. Several Counts may be either of one or two descriptions:



or

(1) Statements of distinct causes of action,


(2) Different statements of the same cause

of action.

ACCORDING to Keigwin, “Duplicity, or

Double Pleading, is the stating in support of


176 Cal. 793, 169 P. 687, (1917); Clark v. Chicago, M. & St. P. By, Co., 28 Minn. 69, 9 N.W. 75 (1881).

The term “facts”, “must include many Allegations which are Mixed Conclusions of Law and State­ments of Fact; otherwise Pleadings would become intolerably prolix.” Mitchell, 1, in C., C. & St. L. By. Co. v. Nichols, (Ind.App.) 130 N.E. 546 (1921)-

In an action for negligent Injury, negligence being the Ultimate Pact to be Pleaded, and not mere Con­clusions of Law, a declaration or petition charging defendants with an act injurious to plaintiff, with a General Allegation of Negligence, is sufficient, as against a General Demurrer, without setting forth the details of the acts causing the injury, unless they could not be negligent under any circumstanc­es. Tatum v- Louisville & N. II. (Jo., 253 F. 898, 165 C.C.A. 378 (1918); Freidman v. Denhalter Bottling Co., 54 Utah 513, 182 P. 843 (1919); Louis v. Smith­McCormick Coast. Co., 80 W.Va. 159, 92 5E. 249 (1917). Savage v, Public Service By. Co., 95 N.J.L. 432, 113 A. 252 (1921); Bobbins v. Baltimore & Ohio H. Co., 62 WNa. 535, 59 SE. 512 (1907); 4 Stand­ard Eney.Proe. 833. See, also, Negligence, General and Particular Averments, 21 B.C.L., “Plehding,”

499—501.


41. A plea of contributory nogligence is not sufficient if it merely states a Conclusion of Law, but must Aver the Facts constituting the negligence, which must be such that the Conclusion of Negligence fol­lows as Matter of Law, Dwight Mfg. Co. v, Holmes, 198 Ala. 590, 73 so. 933 (1917); ICilgore cc Birming­ham By. Light & Power Co., 200 Ala. 238, 75 So, 996 (1917); Southern Cotton Oil Co. v. Woods, 201 Ala. 553, 78 So. 907 (1918); Fusselman v. Yellow­stone Valley Land & Irrigation Co., 58 Mont, 254, 163 F. 473 (1915), annotated In .&nn.Cas.1915B, 420; Valerli v. Breakwater Co., 3 Boyce (DeL) 196, 84 A. 222 (1912), (unsafe cars and tracks, too general).

94 DECLARATION—FORM

was or was

So, also it

Sec. 24

SEVERAL COUNTS IN SAME DECLARATION



95

the same Demand or the same Defence two or more grounds of which either is sufficient for the purpose.


“Thus, 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. Since either promise is sufficient to sustain a de­mand of payment, to allege both would be Double Pleading. So one sued for money may have several Defenses, such a Payment, Want or Failure of Consideration, the Stat­ute of Limitations, a Discharge in Bank­ruptcy; 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. In either of these cases, to set up in Defence more than one of the facts available to defeat the suit would constitute Duplicity.” 42
As the Common Law scheme of remedial ruling was designed to produce a single is­sue, the determination of which would settle the litigation, Duplicity was regarded as a vice as it conduced to the Multiplication of Issues. Each cause of action and each De­fence was required to be placed on one ground, which on Traverse or Plea in Con­fession and Avoidance would leave only a single point in issue at any one stage of the pleading, and then ultimately develop a single clear-cut Issue of Fact. Double Pleading was therefore prohibited to prevent a party arguing two or more matters from which a plurality of issues might develop. With this preliminary statement in mind, we may now

consider the problem presented when Sev­eral Counts are placed in the same Declara­tion, a form of which appears below:
42. Keigwln, Cases in Common Law Pleading, Bk. II,

The Rules of Pleadings, c. IV, DuplicIty, 523 (2d ed.

Rochester 1884), citIng as authority Hunter ‘cc

WilkInson, 44 MIss. 728 (18Th), People’s Bank v.

Nickerson, 106 Me. 502, 76 A. 937 (1910).
Koftier & Peppy ComLaw PIdg. HR—S

A FORM OF DECLARATION CONTAINING

SEVERAL COUNTS:

In the KING’S BENCH Term, in

the year of the reign of King George

the Fourth.


FOR that the said C.D. heretofore, to wit,

onthe dayof ,A.D.

with force and arms, at , in the coun­ty of , made an assault upon the said A.R, and beat, wounded, and ill-treated him, so that his life was despaired of,
And also for that the said C.D. heretofore, to wit, on the day and year aforesaid, with force and arms, at aforesaid, in the county aforesaid, made another assault upon the said A.B., and again beat, wounded, and ill-treated him, so that his life was despaired of, and other wrongs to him then and there did, against the peace of the state.
To the damage of the said A.B. of

dollars, and therefore he brings his suit, etc.


SHIPMAN, Handbook of Common Law Pleading, c. X, 206 (3rd ed. by Ballantine, St. Paul, 1923).
Where a party had several distinct causes of action, at Common Law, he was allowed to pursue them cumulatively in the same action, subject to several rules, to be present­ly explained, as to joining such demands only as were of similar character or quality. Thus, he might join a claim of Debt on a Bond with a claim of Debt on a Simple Con­tract, and pursue his remedy for both in the same Action of Debt.43 So, if several distinct trespasses were committed, these might all form the subject of one Action in Trespass.4
43. Trth,,~ Cotton Manufactory v. Lobdell, 13 Johns, (N.Y.) 482 (1810), in which the Court introduced the foliowlag test: “The Rule is invariable, that Causes of Action, which admit of the Same Plea and the Same Judgment, may be Joined; but the ecaverse of this proposition is not invariably truo.”
44- That dIfferent Acts of Negligence may be charged In different Counts as the Cause of Injury, see Scott

1

Where the plaintiff thus makes several de­mands in the same action, he should set them out separately in his Declaration in what are called “Separate Counts.” Each Count is a separate, independent statement of a cause of action.


Moreover, a plaintiff is permitted to state the same cause of action in different ways in different Counts, as if he were setting out so many separate and distinct causes of action. This was for the purpose of pre­venting the defeat of a just cause of action through an incidental Variance between the

evidence produced at the Trial and the Al­legations contained in the various Counts. In an effort to avoid such an occurrence, the same cause of action was stated in dif­ferent Counts so as to meet any variation in the evidence which might develop at the Trial.


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. The sufficiency of one of Several Counts was determined on its own Aver­ments, without regard to the other Counts.’5 One Count, however, might make reference to another for relevant matter without the necessity of repeating it.
The use of Several Counts when applied to distinct causes of action was entirely con­sistent with the Rule Against Duplicity, as the object of that rule was to prevent several issues in respect to the same demand only, there being no objection to having several issues where the demands were several.
v. Parlen & Orcndorff Co., 245 III. 460, 92 N.E. 318

(1910).
And Several Acts of Negligence causing the Injury



may be alleged in One Count of a Declaration as

One Cause of Action. Flynn v. Staples, 34 App.D.C.

92, 27 L.R.A.,N.s., 792 (1909); Gartin ‘cc Draper



Coal & Coke Co., 72 w.va. 405, 78 S.E. 673 (1913).
4” L’orter y. Drennan, 13 Iil.App. 862 (1888); Lake

Shore & If. S. By. Co. v. Hessiona, 150 Ill. 546, 37



N.E. 905 (1894); Smith v. Philadelphia B. & W. B.

Co., 155 A. (DeLSuper.) 418 (1931).

Cli. 4

Where Several Counts were thus used, the defendant might, according to the nature of his Defense, Demur to the entire Declara­tion, or plead a single Plea to the entire



Declaration, or he might follow the course of Demurring to one Count and pleading to another, or he might plead a Separate Plea to each Count; and in the two lat­ter cases the action may cause a corres­ponding severance in the subsequent plead­ing, and the production of several is­sues. But, whether one or more issues be produced, if the decision, whether on Law or Fact, was in the plaintiff’s favor, as to any one or more Counts, he was entitled to Judgment pro tanto, even though he failed as to the remainder.”
JOINDER OF DIFFERENT CAUSES OF ACTION47

25. Where the plaintiff has several and dis­tinct causes of action of the same nature and character, or to which the same Plea may be pleaded, and on which the same Judgment may be rendered, he may pursue them all in the same Declaration.
THE joinder Of distinct causes of action was permissible under the conditions stated
46. Olson v. Kelly Coal Co., 236 Ill. 502, 86 N.E. 88 (1908). See, also, The Illinois Practice Act, 78 (1910).
47. In general, on the subject of Joinder and Mis’ joinder of Causes of Action at Common Law, under Modern Codes, Practice Acts and Rules of Court,

See:


S6 DECLARATION—FORM

Articles: Sunderland, Joinder of Actions, 18 Micb.L.


Rev. 571 (1920); flume, A Rational Theory for

Joinder of Causes, etc., 26 Mich.L.Rev. 1 (1927);



Toelle, Joinder of Actions—with Special Reference

to Montana and California Practice, 18 Calif.L.Rev.

459 (1930); Gavitt, The Joinder of Causes of Ac’

tion for Injuries Sustained by Those Standing in

Familial Relationship, 41 DickInson L.Rev. 48

(1938); Wheaton, Causes of Action Blended, 22 Minn.

L.Rev. 43 (1938); flume, Free Joinder of Parties,

Claims and Counterclaims, 2 P.1LD. 250 (1943):



Dutcher, Joinder of Parties and ActIons, 29 Iowa

I,.Rev. 3 (1043); Blmne, Required Joinder of Claims,

45 MIcb.L.Rev, 797 (1947); Lugar, Common Law

Pleading Modified Versus the Federal Rules, 52 W.

Va.L.Rev. 137 at 145 (1950); Wright, Joinder of

Sec. 25 JOINDER OF CAUSES OF ACTION

above, though it seems that the first, or nature of the cause of action, was the best criterion,48 as instances existed permitting the uniting of Debt and Detinue, or Debt on a Specialty with the same action on a Judgment or Simple Contract, where the Pleas were dif­ferent, and the Judgment in Detinue was also in a different form.49 In actions in form cx contractu, the plaintiff might join as many Counts as he had causes of action of the


Claims and Parties Under Modern Pleading Rules, 36 Minn.L.Rev. 580 (1052).
Notes: Recent Treads in Johider of Parties, Causes

and Counterclaims, 37 Coi.L.llev. 462 (1937); Civil

Procedure—Code Pleading—Joinder of Actions on

Two Several Contracts of Insurance, 85 U. of Pa,



L.Rev, 843 (1041); Parties and Joinder of Actions

Under the Illinois Civil Practice Act, 43 Ill,L,flev.

41 (1948); Civil Procedure—Joinder of Causes of

Action in Michigan, 51 Mich.L.flev. 1068 (1051).


Annotations: Joinder or Representation of Several Claimants in Action Against Carrier or Utility to Recover Overcharge, 1 £LJt.2d 160 (1948); Joinder In Defamation Action, of Denial and Plea of Truth of Statement, 21 A.L.R.2d 813 (1952); Joinder of Cause of Action for Pain and Suffering of Decedent with Cause of Action for Wrongful Death, 35 A. L.R.2d 1377 (1954).
48. Tidd, Practice of the Court of ICing’s Bench, c. I,

Of Actions, and the Time Limited for their coin­mencement, 12 (0th ed. London, 1828); 1 Chitty,



Pleading and Parties to Actions with Precedents, e.

II, Of Forms of Action, 229 (16th Am. ed. by

Perkins, Springfield, 1876). See, also, Whipple v.

Fuller, 11 Coan. 582, 29 Am.Dcc. 330 (1836); Chi­cago, W. D. By. v. Ingraham, 131 111. 659, 23 N.E.

350 (1890); Brady v. Spurek, 27 III. 478 (1861);

Union Cotton ?,Iannfactory v. Lobdell, 13 Johns-

(N.Y.) 462 (1816).
According to Professor Edson 11. Sunder]and, Mis­joinder of Causes of Action was at Common Law, without good reason, regarded as a most serious er­ror. See article, Joinder of Actions, 18 Mich.L.itcv. 571, 574 (1920).

But some actions of different forms, such as Debt and Detinue, Case and Trover, could be joined. Mis­joinder might result from the diversity of capaci­ties in which the parties sued or were sued.


49. The general issue In Debt on a Specialty was vtO,l 5sf faction, In Debt on a Judgment, nit debet or ,tnl tiel record. The Judgment in Detinue was in the alternatite, for the goods or their value. See article by Howe, Misjoinder of Causes of Action In Illinois, 14 Ill.L.Rev. 581 (1920).

same nature in Assumpsit, and, as above ob­served, in the different Actions of Debt, or Debt with DetinueP° So, several distinct trespasses, both to the person and property, might be joined in the same Declaration in Trespass,3’ and several takings at different days and places in Replevin,52 and several causes of action in Case might be joined with Trover.53 But when the causes of action were of a different nature, and tile same Judgment could not be rendered, they could not be joined!” Actions cx contractu could not be joined with those in form cx delicto.,55 though the case of Debt and Detinue seems


30. Union Cotton Manufactory V. Lobdell, 13 Johns. (N.Y.) 402 (1816) ; Smith v. Proprietors of First Con­gregational Meetinghouse in Lowell, S Pick. (Mass.) 178 (1820); Farnham v. hay, 3 Blackf. (md.) 167 (1833); Gray v. Johnson, 14 N.H. 414 (1843); Til­lotson v. Stipp, 1 Blackf. (lad.) 77 (1820)
5’. Illinois: Chicago, W. D. fly. Co. v. Ingraham, 131

III. 659, 23 N.E. 350 (1800); Massachusetts: Parker

-v. Parker, 17 Pick. (Mass.) 236 (1835); Bishop v.

Baker, 19 Pick. (Mass.) 517 (1837); New York:

Baker v. Dumbolton, 10 Johns. (N.Y.) 240 (1813).
5?. Fitzherbert, Natura Brevinm, 68, note a (London,

1566); Buller, Nisi Prius, c. IV, 54 (Dublin, 1791).


51 Brown v. Dixon, 1 T.R. 277, 09 Eng.Bep. 1091 (1786); Smith v. Goodwin, 4 Barn. & Adol. 413, 110 Eug-Rcp. Sn (1833).
But a Count in Trover could not be joined with one in Trespass. Crenshaw v. Moore, 10 Ga. 3.84 (1851).

And ns to Joinder of Slander and Malicious Prosecu­tion, see Miles v. Oldueld, 4 Ycates (Pa.) 423, 2 Am. Dee. 412 (1807).


54. Selby v. llutchinson, 4 Oilman (In.) 319 (1847); Toledo, W. & W. B. Co. v. Jacksonville Depot Build­ing Co., 63 111. 308 (1872).
55. Alabama: Copeland v. Flowers, 21 Ala. 472(1852);

Connecticut: Stoycl v. Weseott, 2 Day (Conn.) 418,



2 Am.Dec. 109 (1807); Indiana: Bodley v. Roop, 6

Btaekf. (Ind.i 158 (1814); New York: Church v.

Mumford, 11 Johns. (N.Y.) 479 (1814): Cf. Rallock

v. Powell, 2 Caines (N.Y.) 216 (1804); Crooker V.

Willard, 28 N.H. 134, note (1853).


It was Improper to unite in the Same Declaration a Cause of Action sounding in Contract with one sounding in Tort. Shafer v. Security Trust Co., 82 W.Va. 818, 97 S.E. 290 (1918): Wells V. Kanawha & 1.1. Ry. Co., IS W.Va. 762, 90 St. 337 ¶1916); See

Note: Pleading and Practice—Inconsistent Causes of Action in Same Complaint—Contract and Tort, 20 Col.L,Bcv. 712, 800 (1920).



97

98

DECLARATION—FORM

Ch. 4

to constitute an exception,5° and Assumpsit cannot be joined with Account, or Covenant or Debt,” or Trespass with Case,58 as they

Were actions of different natures; and, for the same reason, it was not possible to join Trespass or Case with Detinue or Replevin.


Neither can Causes of action due in dif­ferent rights be joined.59 In referring to this very point, Professor Edam R. 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; Counts could not be joined each of which set up a several right in a different plaintiff against the same defendant; Counts setting up dif­ferent causes of action in favor of the same plaintiff against different defendants could not be joined; 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.” 00
50. See Tidd, Practice of the Court of King’s Bench, C. I, Of Actions, and the Time Limited for Their Commencement, 11 note b (9th ed., London 1828). It has been shown above that Debt and Detinue were closely related in origin, and that Detinue first lay to enforce the obligation of a bailee to deliver.
fl. Pell v. Lovett, 19 Wend. (N.Y.) 546 (1838); Can­ton National Bldg. Ass’n V. Weber, 34 Md. 669

(1871); Crulkshank v. Brown, 5 Oilman (Ill.) 75



(1848); McOianity V. Laguerenne, 5 Oilman (IlL) 101

(1848); Guinnip v. Carter, 58 Ill. 296 (1871). See



also, Mayer v. Lawrence, 58 IlLApp. 105 (1894),
58. Cooper v. Bissell, 16 Johns, (N.Y.) 146 (1819); Sheppard v. Furniss, 19 Ala. 760 (1851); Dalson V. Bradberry, 50 Ill. 82 (1869).
89. Kennedy v. Stalworth, 18 Ala. 263 (1850); Patrick v. Bucker, 19 III. 428 (1858); Albin v. Talbot, 46 III. 424 (1868); Safford v. Miller, 59 III. 205; Sleep­er v. World’s Fair BanQuet Hall Co., 166 UI. 57, 46 N.E. 782 (1897); ‘McMullin v. Church, 82 Va. 501 (1886).
60. See Article by Sunderland, Joinder of Actions, 18 MlehLRev. 571, 582 (1920).
On the Joinder of Causes of Action under Modern Codes, see Clark, Handbook of the Law of Code Pleadings. c, VII, Joinder and Splitting of Causes of Action, ~ 67—77, 434-408 (2d ed. St. Paul 1947).

DIFFERENT VERSIONS OF THE SAME

CAUSE OF ACTION
26. Facts constituting but a single cause of action may be differently stated in Separate Counts, in the same Declaration, without flu. plicity.
THE Rule here stated is the result of an ancient relaxation of the Rule against Du­plicity, 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, either from insufficiency in Law, . or inability to properly support the claim by competent

proof. The pleader is therefore permitted to include in his Declaration several statements of the same Cause of Action, each of which differently represents the same State of Facts, and upon one of which a Verdict may be obtained, though he fail as to the rest. He may thus insert as many Counts or State­ments as he pleases, though there can be but one recovery of the sum claimed as due.

This Rule, says Stephen, is a relaxation of very ancient date, and has long since passed, by continual sufferance, into allowable and regular practice. It takes place when the pleader, in drawing the Declaration in Any Action, after having set forth his case in one view, feels doubtful whether, as so stated, it may not be insufficient in Point of Law, or in­capable of proof in Point of Fact, and at the same time perceives another Mode of State­ment by which the apprehended difficulty may probably be avoided. Not choosing to rely on either view of the case exclusively, he takes the course of adopting both, and accordingly inserts the second form of state­ment, in the shape of a second Count, in the same manner as if he were proceeding for a separate Cause of Action. If, upon the same principle, he wishes to vary still further the Method of Allegation, he may find it necessary to add many other succeeding Counts besides the second; and thus, in prac­tice, a great Variety of Counts often occurs

Sec. 26


DIFFERENT VERSIONS

99

in respect of the same Cause of Action, the Law not having set any limits to the dis­cretion of the Pleader, in This respect, if fairly and rationally exercised.°’


Resort may be had to Several Counts in respect of the same Cause of Action, either where the State of Facts to which each Count refers is really different, or where the same State of Facts is differently represented.
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, and another sum on the 10th of July, and a certain sum every month after, till a certain sum was satisfied. Let it be supposed that the plaintiff com­plains of a failure in payment both on the 11th of June and 10th of July. Either failure entitles him to the penal sum for which he brings the action; but, if he states them both in the same Count, the Declaration will be double, The case, however, may be such as to make it convenient to rely on both defaults; for there may be a doubt whether one or other of the payments were not made,
St Stephen, A Treatise on the Principles of Pleading in Civil Actions, c, H, Of the Principal Rules of Pleading,
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