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

Download 9,19 Mb.
Date conversion23.10.2016
Size9,19 Mb.
1   ...   9   10   11   12   13   14   15   16   ...   93
§ IV, Rule II, 279 (3d Am. ed. by Tyler, Washington, D. C. 1893).
50. Time is not material in trespass. Co.Litt. 283a (Philadelphia, 1812). And see, also, Pierce v. Pick-ens, 16 Mass. 472 (1520); Folger v. Fields, 12 Gush. (Mass.) 93 (1853).

51. The Lady of Shandois v. Simson, Cro.Ellz. 880, 78

Eng.Rep. 1104 (1602).



but may support the Allegation by Proof of a different day, except that the day as laid in the Declaration, and as proved, must both be prior to the Commencement of the Suit.52 As the plaintiff is not generally confined in evidence to the time stated in the Declara­tion, so the defendant is not restricted to that laid in the Plea; and so on through the Sub­sequent Pleadings. Obviously, a time should not be stated’ that is intrinsically impossible, or inconsistent with the fact to which it re­lates. A time so laid would generally be ground for Demurrer. However, there is no ground for demurrer if the time is unneces­sarily laid as a Fact not Traversable, for an unnecessary statement of time, though im­possible or inconsistent, will do no harm.
Time to be alleged in the Plea

WHERE time is not material to the De­fense, and the matter of Complaint and De­fense, from the nature of the case, must have occurred at one and the same time, the de­fendant in pleading must follow the day laid iii the Declaration.

This general rule has long been estab­lished, and its effect is that the Plea must state the Matter of Defense as having oc­curred on the day mentioned in the Declara­tion, even though that be not the true day, unless the nature or circumstances of the Defense render it necessary for the defend­ant to vary from the time thus stated. Its object seems to be the prevention of an ap­parent discrepancy upon the Record in re­spect to time, where the alleged Cause of Action and the Defense pleaded actually oc­curred at one and the same time, and where the defendant is under no necessity of laying
S2. English: Ring v. Roxbrough, 2 Tyr. 468 (1532);

Cf. International & 0. N. B. Co. v. Pape, 73 Tex. 501,

11 SW. 526 (1889); Holmes v. Newlands, 3 Perry

& D. 128; MaIne: Wellington v. Milliken, 82 Me.

58, 19 MI. 90 (1889).

As to the statement or time under Code Pleading, see Backns v. clark, I Kan. 303, 83 Am.Dec. 437 (1863). The rule still applies, and Time, when material, must be strictly laid and proved.

Ch. S
his Defense on a different day from that mentioned in the Declaration. The rule ap­plies, however, only when time is immaterial, and therefore, if the Defense is such as to render it necessary that the true time be stated in the Plea, the Law allows the de­fendant to vary from the time mentioned in the Declaration. 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. The principle is the same as laying the true Venue by the defend­ant in Transitory Actions when the nature of his defense requires it.
Again, the defendant is never required to follow the thy named in the Declaration in pleading Matter of Discharge, whether it be material or not, since all Matter of Discharge must, from its nature, have occurred subse­quently to the creation of the duty or liabil­ity upon which the action is founded. 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; more especially if such Dis­charge was by Matter of Record, or by a written instrument, since the time must then be laid to conform to the date of such Record or Instrument.
35. When there is occasion to allege a conS tinuous act in pleading, the time of its dura­tion should be shown,
THIS rule applies generally where there is only one Count in the Declaration, and the subject matter of the suit consists of a continuing act by the defendant, covering many days. 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, and the plain-

Sec. 36



tiff will be allowed to offer evidence only in proof of acts committed during the whole or some part of the period covered.53
36. When the Declaration alleges an injury to goods or chattels, or a contract relating tu them, their quantity, quality and value or price should be stated; and in actions for the re­covery of, or for injuries to, real property, quantity and quality should be shown.
IT is, in general, necessary, where the Dec­laration alleges any injury to goods and chat­tels, or any contract relating to them, that their quality, quantity, and value or price should be stated. And in any action brought for recovery of real property, its quality should be shown, as whether it consists of houses, lands, or other hereditaments; and in general it should be stated whether the lands be meadow, pasture, or arable, etc. And the quantity of the lands or other real estate must also be specified. So, in an ac­tion brought for injuries to real property, the quality should be shown, as whether it consists of houses, lands, or other heredita­ments,M Thus, in an Action of Trespass for breaking the plaintiff’s close and taking away his fish, without showing the number or nature of the fish, it was, after Verdict, objected, in Arrest of Judgment—First, “that it did not appear by the Declaration of
~3. Johnson v. Long, S Ld.Raym. 260, 92

676; Monkton v. Pashley, 2 Salk. 638,

Rep. 539; Earl of Manchester v. Vale,

24, n. 1, 85 Eng.Rep. 25.

what nature the fish were, pikes, tenches, breams, etc.; “ and, secondly, that “the cer­tain number of them did not appear.” And the objection was allowed by the whole court.35 So, where, in an Action of Trespass, the Declaration charged the taking of cattle, the Declaration was held to be bad because it did not show of what species the cattle were5° So, in an Action of Trespass, where the plaintiff declared for taking goods gen­erally, without specifying the particulars, a Verdict being found for the plaintiff, the court Arrested the Judgment for the uncer­tainty of the Declaration.57 So, in a modern case, where, in an Action of Replevin, the plaintiff declared that the defendant, “in a certain dwelling house, took divers goods and chattels of the plaintiff,” without stating what’ the goods were, the Court Arrested the udgment for the uncertainty of the Dec­laration, after judgment by Default and a Writ of Inquiry executed.38 So, in aix Action of Dower, where blanks were left in the Count for the number of acres claimed, the Judgment was Reversed after Verdict.3° So, in Ejectment, the plaintiff declared for five closes of land, arabIc and pasture, called “Long Furlongs,” containing ten acres. Up­on “Not Guilty” pleaded, the plaintiff had a Verdict, and it was moved in Arrest of Judg­ment that the Declaration was ill, because

the quantity and quality of the lands were not distinguished and ascertained, so as to show how many acres of arable there were and how many of pasture. And for this rea­son the Declaration was held ill, and the Judgment Arrested.°°

55. Playter’s Case, 5 Co. 34b. 77 Eng.Rep. 105.
ø~. Dale y. Phillipson, 2 Lut. 1374, 125 Eng.Rep. 758.
57. Bertie v. Pickering, 4 Bur. 2455, OS Eng.Rep. 287 (1769); Wiatt V. Essington, 2 Ld.llaym. 1430, 02 Eng.Rep. 418 (1701).
58. Pope v. Tillman, 7 Taunt. 642, 129 Eng.Rep. 256 (1817).
5$- Lawly v. Gattacre, Cro.Jac. 498, 79 Eng.Rep. 425.


91 Fog.

1 Saund.

Stephen, A Treatise on the Principles of Pleading in Civil Actions, e. II, of the Principal Rules of Pleading, Rule III, 281 (3d Am. ed. by Tyler, wash­ington. D. C. 1893); Bracton, Roman Law, 431a (London, 1640); flarpur’s Case, 11 Co. 25b, 77 Eng. Rep. 1176; Knight v. Symms, Carth. 204, 90 Eng. Rep. 722; Doe ex dem. Bradshaw v. Plowman, 1 East 441, 102 Eng.Rep. 171 (1501); Coodtitle cx dem. Wright v~ Otway, 5 East 357, 103 Eng. Rep. 370 (1806); Andrews v. Whiteheat], 13 East 102, 104 Eng.Rep. 306 (1810); Haneocke v. Prowd, 1 Saund. 333, n. 7, 85 Eng.Rep. 479; Taylor v. Wells, 2 Saund. 74, n. 1, 85 Eng.Rep. 74&

GO. Knight v. Symms, Carth. 204, 90 Eng.Rep. 722.



Ch. 5

With respect to value, it is to be observed that it should be specified in reference to the current coin of the realm, thus: “Di­vers, to wit, three tables of great value, to wit, the value of twenty dollars, of lawful money of the United States.” With respect to quantity, it should be specified by the or­dinary measures of extent, weight, or capac­ity, thus: “Divers, to wit, fifty acres of ara­ble land; “ “divers, to wit, three bushels of wheat.”

The rule in question, however, is not so strictly construed, but that it sometimes ad­mits the specification of quality and quanti­ty in a loose and general way. Thus, a Dec­laration in Trover for two packs of flax and two packs of hemp, without setting out the weight or quantity of a pack, is good after Verdict, and, as it seems, even upon Special Demurrer.6’ So, a Declaration in Trover, for a library of books, has been allowed, without expressing what they were. So, where the plaintiff declared in Trespass for entering his house, and taking several keys for the opening of the doors of his said house, it was objected, after Verdict, that the kind and number ought to be ascertained. But it was answered and resolved that the keys are sufficiently ascertained by reference to the house62 So it was held, upon Special De­murrer, that it was sufficient to declare, in Trespass for breaking and entering a house, damaging the goods and chattels, and wrenching and forcing open the doors, with­out specifying the goods and chattels, or the number of doors forced open; for that the essential matter of the action was the break­ing and entering of the house, and the rest merely Aggravation.63 The degree of cer­tainty requisite in stating matters of the kind mentioned seems to be such as the facts in
61. Hesketh v. Lee et al., 2 Saund. 94b, n. 1, 85 Eng. Rep. 706.

62 Layton v. Grlndall, 2 Salk. 643, 91 Eng.Rep. 542.
63. Chamberlain v. Greenfield, 3 Wils. 292, 95 Eng. Rep. 1061 (1772).

each case will conveniently admit of, a gen­eral description being allowed where the mat­ter to be described comprehends a multiplic­ity of particulars, a detailed description of which would either be impracticable or pro­duce great prolixity in the pleadings,64 and minuteness of description being required where a complete identification might be es­sential to a recovery.65

As quantity and value, when brought in issue, are not generally material, it is suffi­cient that any quantity or value be alleged without risk of Variance in the event of a different amount being proved.65 The only exceptions to this are where the above facts are alleged in the recital or Statement of a Record, written instrument, or express con­tract, in which cases, as in alleging time re­garding the same subjects, number, quantity, etc., must be truly stated as they form part of the substance of the issue. For example, to a Declaration in Assumpsit for £10 4s., and other sums, the defendant pleaded, as to all but £4 is. 6d., the General Issue, and, as to the £4 7s. 6d., a tender. The plaintiff re­plied that, after the cause of action accrued, and before the tender, the plaintiff demand­ed the said sum of £4 7s. 6d., which the de­fendant refused to pay; and on issue joined it was proved that the plaintiff had demand­ed not £4 7s. 6d., but the whole £10 4s. This proof was held not to support the is-
64. English: Layton v. Griadall, 2 Salk. 643, 91 Eng.

Rep. 54j; Cryps v. Baynton, 3 Bulst. 31, 81 Eng.

Rep. 26; Shum V. Farrington, 1 Bog. & P. 640, 126

Eng.Rep. 1108 (1797).

And, as to the description of property, in the different aetions, see: Alabama; Haynes v, Crutchñeld, 7 Ala. 189 (1544); New Hampshire: Smith v. Boston, C. & hi. It. It., 36 N.H. 458 (1858); New York:

Hughes v. Smitb, 5 Johns. (N.Y.) 173 (1800).

65. Dale v. Phillipson, 2 Lut. 440, 125 Eng.Eep. 758;

Bertie v. Pickering, 4 Burr. 2455, 98 Eng.Rep. 287

(1769); Pope v. Tillman, 7 Taunt, 642, 129 Eng.Rep.

256 (1817).

66. Orispin v. WIlliamson, S Taunt. 107, 129 Eng.Rep.

323 (1517). And see, also, Rubery V. StevenS, 4 Barn. & Ado!. 241, 110 Eng.Rep. 448 (1532).

Sec. 37



sue.°7 The test of the certainty required ap­pears in all cases to be the liability of the pleader to the consequences of a Variance when the Proof is reached on the Trial.62 The Allegation of Quality in the subject mat­ter, since it generally requires strict proof, falls directly within the reason of the rule, and must be truly stated.69

37. The pleadings must specify the names of persons. This rule includes the names of per. sons necessarily mentioned in the pleadings, al­though they are not parties to the suit, and their names must be correctly stated; it also includes parties to the action.
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, though they are in no sense concerned in bringing or defending the action; and the reason is that any error in describing such persons may result in a fatal Variance when the Proof is reached, since the correct identification of such persons by name becomes a matter of essential descrip­tion, material to the merits of the case.”

If, in pleading a contract made by James Smith, the name is incorrectly given as John Smith, the strict rule would subject the pleader in fault to the penalty of a variance, though a more liberal practice now general­ly allows an Amendment where it does not substantially change the cause of action.
67. Rivers v. Griffiths, S Earn. & AId. 630, 106 Eng.

Rep. 1321 (1822).

68. Foster v. Pennington, 32 Me. 178 (1850).
69. Knight v. Symms, Carth. 204, 90 Eng.Eep, 722.
70. English: Harvey v. Stokes, Willes 5, 125 Eng.IIep.

1026 (1737); Acerro v. Petrone, I Starkie 200, 171 Eng.Rep. 414 (1815); Mayclstone v. Lord Palmor­ston, hi. & hi. 6, 173 Eng.Rep. 1061 (1826); Pinch v. Cocken, 2 C.M. & B. 197, 150 Eng.Rcp. 85 (1835); Il­linois: Becker v. German Mut. Fire Ins. Co. of North Chicago, 68 III. 412 (1873); New Jersey: Elberson

v. Richards, 42 N.J.L. 09 (1880). Cf. Forman v. Jacobs, I Stark-ic, 46. 171 Eng.Rep. 307 (1815).

Some observations may be made here which apply equally whether the name be that of a person not a party to the suit, or that of one who is a party. A person may be described by the name by which he is commonly known, though it is not his true name, and if a man has initials for his Chris­tian name, or is in the habit of using initials therefor, and is known by them, they may be used in describing him.7’ In a few states a middle name or initial is recognized by the law as a part of the name, and its omission, or a mistake in stating it, is a misnomer in the case of a party, and a Variance in the case of persons who are not parties, but are necessarily named.’2 In most Jurisdictions, however, the law recognizes but one Chris­tian name, The middle name or initial is no part of the name, and need not be stated, or proved, if stated.’3 Where the name of a person is misspelled, this will not constitute a Variance, nor a Misnomer, if the name as given and the name as proved are idem so­nans,51 Whether names are idem sonans or

71. Connecticut: Tweedy v. Janis, 27 Cone. 42

(1858); Minnesota: Kenyon v. Semen, 43 Minn. ISO,

45 N.W. 10 (1890); Montana: Kemp ,‘. McCormick,

I Mont. 420 (1872); Pennsylvania: In re Jones’ Es­tate, 27 Pa. 336 (1856); South Carolina: City Coun

cii of Charleston v. King, 4 MeCord (S.C.) 487 (1828).
72. Commissioner V. Perkins, I Pick. (Mass.) 388

(1823); Commissioner v. Shoarman, 11 Cush. (Mass.)

546 (1853); Parker v. Parker, 146 Mass. 320, 15 N.E.

902 (1888).

~3. English: Ahithol v. Beniditto, 2 Taunt. 401, 127

Eng,Rep. 1133 (1811); Williams v. Ogle, 2 Str. 889,

93 Eng.Eep. 919; Illinois: Thompson v. Lee, 21 111.

242 (1850); Erslcino v, Davis, 25 111. 251 (1861);

Illetch v. Johnson, 40 111. 116 (1864); New Ha,np­shire: Wood v. Fletcher, 3 N.H. 61 (1824); Hart v.

LIndsey, 17 N.H. 235, 43 AmPec. 597 (1845); New’

Jersey: Dilts v. Kinney, 15 N.J.L. 130 (1835); New

York: Franklin v. Talmadge, 5 Johns. (N.Y.) 84

(1809); Roosevelt v. Gardinier, 2 Cow. (N.Y.) 463

(1824); Pennsylvania: Bratton v. Seymour, 4 Watts

(Pa.) 329 (1835); Vermont: Thaacs v. Wiley, 12 Vt.

674 (1839); Allen v. Taylor, 26 Vt. 599 (1854); Tcx~

as: McKay v. Speak, S Ter. 376 (1876); Federal:

Keene v. Ijeade, 3 Pet. 1, 7 L.Ed. 581 (1828).

~t The following names have been held Idem so­nans: “Segrave” for “Seagrav,” Williams v. Ogle,


not depends, of course, on the pronouncia­tion. The worth “junior,” “senior,” etc., are no part of the name, and need not be stated, nor, if stated, proved.75
38. The plaintiff and defendant must be designated by their proper names, and not by words of mete description; and it must be shown whether they appear in the action in an individual or a representative capacity.

The parties to an action include all persons who are directly interested in the subject mat­ter in issue, who have a right to control the proceedings, to make a Defense, or to Appeal front the Judgment. All others are regarded as strangers to the cause.

THE effect of this rule is plainly apparent from its terms, as certainty in the pleadings in this respect must necessarily be required for purposes of identification. Both plaintiff and defendant should be described by their Christian names and surnames, and, if either be mistaken or omitted, it is ground for Plea in Abatement.7° An error in this respect,
supra; “Benedetto” for “Beneditto,” Ahitbol t Ben­neditto, supra; “tisrey” for “Usury,” Gresham v. Walker, 10 Ala. 370 (1846); “Petris” for “Petrie”, Petrie v. Woodworth, 3 Caines (N.Y.) 219 (1805).
The following names have been held not to be idem sonans: “Tarbart” for “Tabart,” Bingham v. Diekie, 5 Taunt. 814, 128 Eng.Rep. 913 (1814); 4’Comyns” for “Cummins,’ Cruiksbank V. Comyns, 24 III. 602 (1860). For further illustrations, see Clark, Crim­inal Procedure, c. X, Pleading and Proof—Variance

—Conviction of Minor Offense, 341 (St. Paul, 1895).

78. Connecticut: IDe Rentland v. Somers, 2 Root

(Conn.) 437 (1796); Illinois: Hendley v. Shnw, 39

Ill. 354 (1866); Massachusetts: Kincaid v. I-lowe,

10 Mass. 203 (1813); Cobb v. Lucas, 15 Pick. (Mass.)

7 (1833); New York: Padgett v. Lawrence, 10

Palge (N.Y.) 170, 40 Am.Dec. 232 (1843); Vermont:

Brainard v. Stilphin, 6 Vt. 9, 27 Ani.Dec. 532 (1834);

Jameson v. Isaacs, 12 Vt. 611 (1829); Clark, 0dm-

that Procedure, it VI, Pleading—The Accusation

(Continued) 235 (St. Paul, 1895).

But, see, State v. Vittum, 9 N.H. 519 (1838); Jackson cx 4cm. Pelt v. Prevost, 2 Caines (N.Y.) 164 (1804).

¶6. IllInois: Brent v. Shook, 36 III. 125 (1864); New

Hampshire: Lebanon V. GrIffin, 45 N.H. 558 (1864);

flanders v. Stewartstown, 47 N.H. 549 (1867); Ohio:

Herft Shulze, 10 OhIo 263 (1840).

however, can now generally be cured by amending the defective pleading. A. liberal construction of the rule allows, as we have seen, the use of the names by which such par­ties are generally known,” though not strict­ly correct, and though the designation thus habitually used includes the person’s initials only.78 Other questions applying both under this head, and also to naming persons not parties, have been noticed above. If a con­tract or promise sued upon has been made to or by the person by a wrong name, or by an abbreviation of his correct name, an ac­tion may be brought by or against him in his true name, setting forth the Incorrect style or description, and stating that the parties are the same.7°

The effect of a mistake in the name of a person •not a party win, as above stated, amount to a fatal Variance when the Proof discloses the true name, It is otherwise where the mistake is in the name of a party. Here the objection can only be taken by a Plea in Abatement. It cannot be objected to as a Variance at the Trial.80
Descriptive Words

IF a person sues or is sued in a represen­tative capacity, as receiver, executor, trus­tee, etc., while the representative character in which he appears may be gathered from

And the names of all parties should be disclosed. Wolf v. Binder (Pa.Com.Pl.) 10 Pa.Co.Ct.R. 108 (1907).
77. In re Jones Estate, 27 Pa. 336 (1856).
78. Connecticut: Tweedy v. Jarvis, 27 Conn. 42

(1858); Minnesota: Kenyon v. Semon, 43 Miss. 180,

45 NW. 10 (1890); Montana: Kemp v, Mccormick,

1 Mont 420 (1872); South Carolina: City Council of

Charleston v, King, 4 McCord (3.0.) 487 (1828).
79. City of Lowell v. Morse, I Mete. (Mass.) 473 (1840); President, etc. of Commercial Bank v. French, 21 Pick. (Mass.) 486, 32 Am.Dee. 280 (1839).
flO. English: Mayor & Burgesses of Stafford v. Bet-ton, 1 Bos. & P. 40, 126 Eng.Rep. 766 (1797); Massa­chusetts: Medway Cotton Manufactory v. Adams, 10 Mass. 360 (1813); New York: Reald v, Lord, 4 Johns (N.Y.) 118 (1809).

Sec. 39



the body of the pleadings,81 without a de­scription as such in the title of the action, the fact should appear in both; and it is import­ant that the statement be made in the name recognized as effective, as otherwise the en­tire object of the Complaint or Defense may be defeate&82 It is not generally sufficient to state simply, “A.B., executor,” without the

use of the word, “as,” since the omission will cause the word to be disregarded as merely descriptive, and the party will be treated as an individual only for the purpose of the par­ticular action.83 To show that he is a party in the special capacity, he must be named “as” executor, etc.

Partners and Corporations
WHEN the action is by or against a part­nership, it must be in the names of the in­dividual members, where express Statutes do not treat the firm as an entity, and allow the use of the name commonly employed in its business, since the designation of a parther­ship is always arbitrary, and may not con­tain the proper names of any of its mem­bers.84 But, where a corporation is concern­ed, the law takes notice of it only by the corporate name, treating it as a sing]e arti­ficial person, and only recognizing its mdi­
81. Knox vi Metropolitan Elev. By. Co., 58 Hun 517,

12 N.Y.Snpp. 848 (1890).

82. Llenshall vi Roberts, 5 East 150, 102 Eng.Rep.

1020 (1804); StIllwefl V. Carpenter, 62 N.Y. 639 (1875); and cases hereafter cited.

83. English: Henshall -v. Roberts, 5 East 150, 102 Eng.flep. 1026 (1804); Alabama: Castleberry V. Fennell, 4 Ala. 642 (1843); Illinois: Brent v. Shook, 36 lU. 125 (1864); Massachusetts: Buffum v. Chad­wick, S Mass. 103 (1811); New York: Barley V. Roosa, 59 Hun 617, 13 N.Y.Supp. 209 (1891); Beers v. Shannon, 73 N.Y. 292 (1878).
Where one sues, describing himself as executer, ii

the justice of the ease requires It, the Court wiU

consider it as merely descriptio personae. George

V. EnglIsh, 30 Ala. 582 (1857); Higgins V. Halligan,

46 Ill. 173 (1867); Grew v. Burdett, 9 Pick. (Mass.)

265 (1880).
84. Bentley y. Smith, 3 Calves (N.Y.) 170 (1805); Brubaker V. Poage, I T.B.Mon. (Ky.) 123 (1824).

victual members where thefr rights are in question inter se; and the only method of de­scription is by the use of the corporate name or title.
Repetition of Names

FOR the same purpose of identification, when the name of either party has been once introduced in the pleadings, a repetition of it shouid be accompanied by such terms of reference as will clearly trace the identity as the same, unless there is no danger of confusion. In any case, it is the better plan, and the common practice is, to use the word “said” or “aforesaid,” or, if there be two or more persons or subjects, “first aforesaid” or “last aforesaid,” or terms of equivalent import.’5

39. The Pleadings must show Title, where it is material. 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.

(Ii) When a person is to be charged in a pleading with any liability in re­spect to either real or personal property, his Title to such property must be alleged.

Exception—No Title need be shown where the opposite party is estopped from denying it.

WHEN, in pleading, any right or authority is set up in respect of property, personal or real, some Title to that property must of course be alleged in the party, or in some other person from whom he derives his au­thority.80 So, if a party be charged with any liability, in respect of property, personal
85. Pollard v. Lock, Cro.Eliz. 267, 75 Eng.Rep. 522 (1Th3). And see Uildrith vi Harvey, cited in Given ‘cc Driggs, 3 Calnes (N.Y.) 150 (1805).
88. 5 Comyn’s Digest, “Pleader,” C. 34, C. 36 (Dublin,

1793); Braeton, Roman Law, 372l~, 373b (London,




Ch. 5

or real, his Title to that property must be alleged.
We shall first consider the case of a party’s alleging Title in himself, or in another whose authority he pleads; next that of his alleging it in his adversary.
The exception to this rule in cases where the opposite party is estopped from denying Title will be presently considered.
40. ‘When Title is alleged in the party him­self, or in one whose authority he pleads, a Title to the subject matter of the controversy must generally be set forth in the pleadings in its full and precise extent. To this rule there are two exceptions:

(I) When the action is founded on pos­session only, and not on Title or Ownership, it is sufficient to allege a Title of Possession only, a naked Allegation of Possession being suffi­cient. This applies to Personal Actions only.

(II) In some cases, where a Title of Pos­session is inapplicable, a general Freehold Title may be alleged in lieu of stating Title in its full and precise extent.
Alleging Title of Possession

IT is often sufficient to allege a Title of Possession only. The form of laying a Title of Possession, in respect of goods and chat­tels, is either to allege that they were the “goods and chattels of the plaintiff,” or that he was “lawfully possessed of them as of his own property.” With respect to corporeal hereditaments, the form is either to allege that the close, etc., was the “close of” the plaintiff, or that he was “lawfully possessed of a certain close,” etc. With respect to in­corporeal hereditaments, 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, and by reason thereof was entitled to the right at the time in question; for example,

that he “was possessed of a certain mes­suage,” etc., “and by reason thereof, during all the time aforesaid, of right ought to have had common of pasture,” etc.
A Title of Possession is applicable_that is, will be sufficiently sustained by the proof

—in all cases where the interest is of a pres­ent and immediate kind. Thus, when a Title of Possession is alleged with respect to goods and chattels, the statement will be supported by proof of any kind of present interest in them, whether that interest be temporary and special, or absolute, in its nature; as, for example, whether it be that of a carrier or finder, only, or that of an owner and pro­prietor.’7 So, where a Title in Possession is alleged in respect to corporeal or incorporeal hereditaments, it will be sufficiently main­tained by proving any kind of estate in pos­session, whether fee simple, fee tail, for life, for term of years, or otherwise. On the other hand, with respect to any kind of property, a Title of Possession would not be sustained in evidence by proof of an interest in remainder or reversion only; and therefore, when the interest is of that description, the preceding forms are inapplicable, and Title must be laid in remainder or reversion, according to the fact, and upon the principles that will be afterwards stated, on the subject of al­leging Title in its full and precise extent.

Where a Title of Possession is applicable, the Allegation of it is, in many cases, suffi­cient, in pleading, without showing Title of a Superior kind, The rule on this subject is as follows; That it is sufficient to allege possession as against a wrongdoer,” or in
87. Wilbraham vi Snow, 2 Sound. 4Th, ii. 1, 85 Eng. Rep. 624; Clay v. City of St. Albans, 43 WXa. 539, 27 S.E. 368, 04 Am.St.Rep. 883 (1897).
88. Comyn’s Digest, “Pleader,” C. 39, C. 41 (Dublin,

1798); Taylor vi Eastwood, 1 East 212, 102 Eng.

Rep. 83 (1801); Grimstead v. Marlowe, 4 T.R. 717,

100 Eng.Rep. 1268 (1792); Creenhow v. Ilsley, Willes

619, 125 Eng.Rep. 1351 (1746); Waring -cc Griftiths,

1 Burr. 440, 97 Eng.Bep. 391 (1758); Langford V.

Webber, 3 Mod. 132, 87 Eng.Rep. 84; Carnaby v.

Sec. 42



stance, in modern practice, of the Allegation of a Title of this character.
Under the head of “Allegation of Title,” In its full and precise extent, we shall con­sider the statement of the Derivation of the Title, and then certain general rules as to the Allegation of the Titles themselves.
In general it is sufficient to state a seisin In fee simple per se; that is, simply to state, according to the usual form of alleging that Title, that the party was “seized in his de­mesne as of fee of and in a certain messuage,” etc., without showing the derivation, or, as it is expressed in pleading, the commencement of the estate; 98 for, if it were requisite to show from whom the present tenant derived his Title, it might be required, on the same principle, to show from whom that person de­rived his, and so ad infinitum. Besides, as mere seisin will be sufficient to give an es­tate in fee simple, the estate may, for any­thing that appears, have had no other com­mencement than the seisin itself which is al­leged. Even though the fee be conditional or determinable on a certain event, yet a seisin in fee may be alleged, without show­ing the commencement of the estate.99
To this rule, however, there is this ex­ception: It is necessary to show the deriva­tion of the fee, where, in the pleading, the seisin has already been alleged in another person, from whom the present party claims. In such case it must, of course, be shown bow it passed from one of these persons to the other. Thus, in Debt or Covenant brought on an indenture of lease by the heir of the lessor, the plaintiff, having al­fl. Scavnge V. Rnwkins, Cro.Car. 572, 79 Bog-Rep.

1091; Co.Litt. 303b (Philadelphia, 1812).

A general allegation of ownership is sufficient. Bragg V. City of Chicago, 73 Ill, 152 (1874); Bucki v. Cone, 25 Fia. 1. 6 So. 160 (1889).
39. Stephen, A Treatise on the Principles of Pleading in Civil Actions, e. II, Of the Principal Rules of Pleading, Rule V, 291 (3d Am. ed. by Tyler, WaslF ington, D. C. 1893), Doct,Pl. 287 (Dublin, 1791).

leged that his ancestor was seized in fee and made the lease, must proceed to show how the fee passed to himself, viz, by de­scent.t So, if in trespass, the defendant plead that EJ~’., being seised in fee, de­mised to G.M., under whose command the defendant Justifies the trespass on the land, Giving Color, and the plaintiff, in his Repli­cation, admits E.ff.’s seisin, but sets up a Subsequent Title in himself to the same land, in fee simple, prior to the alleged demise, he must show the derivation of the fee from FE’. to himself, by conveyance antecedent to the lease under which OH, claims.2

42. In pleading a Particular Estate, its com­mencement must he shown, except where Title is alleged only as Inducement.
WITH respect to particular estates, the general rule is that the commencement of Particular Estates must be shown.3 The meaning of this rule is that, when a party sets up in his own favor an estate for life, a term of years, or a tenancy at will, he must show the Derivation of that Title from its commencement—that is, from the last seisin in fee simple; and, if derived by aliena­tion or conveyance, the substance and effect of such conveyances should be precisely set forth. The reason for the diversity between this and the rule as to estates in fee appears to be that, as an estate in fee simple may be
1. Stephen, A Treatise on the Principles of Pleading in Civil Actions, ~. II, Of the Principal Ru)es of Pleading, Rule V, 291 (3d Am. ed. by Tyler, Wash­ington, 0. C. 1893); 21 Eriey.Pl, & Prac. 728.
2. As to this exception, see Cnthbertson v. Irving, 4 hurl. & N. 742, 157 Eng.Rep. 1034 (1859).
3. Co.Litt. 303b (Philadelphia, 1812); Scilly v. Dally,

2 Salk. 562 91 Eng.Itep. 474; Searl -c. Bunion, 2 Mod. 70, 86 Eng.Rep. 947; Johns v. Whitley, 3 Wils. 72, 95 Eng.Rep. 939 (1770); Hendy v. Ste. phenson, 10 East. 00, 103 Eng.Rep. 698 (1808); P3’-ster vi Hemling, Cro.Jac. 103, 79 Eng.Rep. 83; Shepheard’s Case, Cro.Car. 190, 79 Eng.Bep. 767; Robinson v. Smith, 4 Mod. 346, 87 Eng.Itep. 435.



Cli. 5

and often is acquired by means consisting solely of matter of fact, a General Allega­tion of seisin in fee simple is Traversable; whereas particular estates, being always de­rived out of the fee simple, can regularly be created only by conveyance or by operation of law, and a General Allegation of such an estate is not Traversable, since it im­properly blends law and fact. Hence, where title to particular estates is thus alleged, the time and manner of the derivation must be shown, in order that a Traverse may be taken upon any particular point in the Title.

To the rule that the Commencement of a Particular Estate must be shown there is this exception, namely, that it need not be shown where Title is alleged by way of Inducement only. Thus, in an Action of Debt or Cove­nant, brought on an indenture of lease by the executor or assignee of a lessor for a term of years, it is necessary, in the Declara­tion, to state the Title of the lessor in order to show the plaintiff’s right to sue as as­signee or executor; but, as the Title is thus alleged only by way of Inducement, the Par­ticular Estate for years may be alleged in the lessor, without showing its commence­ment.4
43. Where a party claims by inheritance, he must, in general, show how he is the heir; and if he claims by mediate, and not immediate, descent, he must show the pedigree.
THUS, in pleading his Title by inheritance, a party must in general show how he became the heir, that is, by showing the seizin and death of the ancestor, after whose decease the title descended to the plaintiff as son and heir; and if he claim by mediate descent
4. 5 Comyn’s Digest, ‘Pleader,” E. 19, C. 43 (Dublin

1793); Blockley v. Slater, I Lut. 120, 125 Eng.Bep.

63; Sean v. Bunion, 2 Mod. 70, 86 Eng.Rep. 947;

Scilly V. Daily, 2 Salk. 562, 91 Eng.Rep. 474 (1607);

Skevill v. Avery, Cro.Car. 138, 79 Eng.Rep. 721;

Lodge v. Frye, Croiac. 52, 79 Eng.Rep. 43.

he must allege and prove the pedigree.~ Thus, in Heard v. Baskervile,° where the plaintiff brought Replevin, it was pleaded that the rent descended to a cousin and heir, etc., without showing how the cousin became heir, and the plaintiff Demurred Generally, thus raising an issue of law as to whether the fail­ure to set down the matter of cousenage con­stituted a Defect of Substance, or of Form, such as by the Statute of Demurrers, 27 Eliz. c. 5,

1   ...   9   10   11   12   13   14   15   16   ...   93

The database is protected by copyright © 2016
send message

    Main page