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§ 1 (1285), ought to be particularly set down, or else no advantage be taken of it. It was held that the descent, being mediate, should have been set forth, but that the fail­ure to do so constituted a Defect in Form, and hence was waived by the General Demurrer, as provided by the Statute; the defect, in oth­er words, would have been available upon Special Demurrer.
44. When a party claims title by conveyance or alienation, the nature of the conveyance or alienation must, in general, be stated.
WHERE a party relies upon title by con­veyance or alienation, he must allege or set forth the nature of the conveyance or aliena­tion in his pleading, as whether it be devise, feoffment, or some other form of transfer.7

45. The nature of the conveyance or aliena­tion should be stated according to its Legal Effect, rather than its form of words.

THIS rule involves a specific application of the general rule that in suing upon written contracts or documents they are to be alleged or set forth according to their Legal Effect or Operation, and not Verbatim. As applied to~
~. Dumsday -c’, Hughes, 3 Bbs. & P. 453, 127 Eng.Rep.

246 (1803); Blackborough v. Davis, 12 Mod. 619, 88.

Eng.Rep. 1560; Day v. Chlsm, 10 Wheat (U.

S.) 449, 6 LEd. 363 (1825).

6. Nob. 232, 80 Eng.Rep. 378 (1614).
7. 5 Comyn’s Digest, ‘Pleader,” E. 23, E. 24 (Dublin


Sec. 46



the manner of pleading conveyances this doc­trine means that in their pleading they must be alleged according to the extent of the Title which they actually pass. Thus, in pleading a conveyance for life, it must be al­leged as a “demise” for life; or a conveyance in tail, with a livery of seizin, as a gift in tail; ° and a conveyance of the fee, with livery, is described by the term “enfeoffed.” 10 And the form of pleading must still be the same, whatever might be the words of donation used in the instrument of conveyance, if the effect of the latter remains unchanged.”

46. In pleading Title by Conveyance, if the nature of the conveyance is such that it would, at Common Law, be valid without a deed or other written instrument, then no deed or writ­ing need be alleged in the pleading, even though such document may in fact exist. But where the nature of the conveyance requires, at Common Law, a deed or other written in­strument, such instrument must be alleged. There are two exceptions to this rule:

(I) Where Title is pleaded under a writ­ten lease for years; and

(II) Where a Demise by husband and wife is pleaded.
The Rule Where the Conveyance was Valid at Common Law

AT Common Law, a conveyance in fee, in tall, or for life, when accompanied by livery of seisin, could be made by parol only, and was therefore pleaded without the Allegation of any charter or other writing, whether such instrument in fact accompanied the con­veyance or not, as such a conveyance might,

S. Rastell’s Entries, 647a, lid (London 1596).
S. Coke’s Entries, tit. Formedon, &e. (London 1614).
10. With respect to livery and feofment It has been stated that ‘wlthout livery it Is no feofment, gift, or demise”. vyniar’s Case, S Co.Eep. Sib, 82b, 77 Eng.Rep. 597, 600 (1609).

at Common Law, be made by parol only.” And though, by the Statute of Frauds,’3 such a conveyance will not now be valid unless made in writing, the form of the pleading nevertheless remains the same as before the enactment of the Statute in 1676. The rea­son for this is that the Statute of Frauds merely introduces a new rule of evidence but does not alter or affect the rule of pleading.

The Rule Where the Conveyance was Only Authorized by Statute

CONTRARY to the Common-Law Rule where the conveyance was valid even though by parol, where a devise of land was involved, which, at Common Law, was not valid, and which was authorized by the first Statute of Wills, in 154O,’~ and the second Statute of Wills in 1542,’~ it was required to be alleged to have been made in writing, as that was the only form in which the Statute authorized it to be made.’° And so, if a conveyance by way of grant be pleaded, a deed must be al­leged,17 for matters that “lie in grant” can pass by deed only.18

Two Exceptions to the Common-Law Rule

THE first exception to the rule that if the nature of a conveyance is such that it would,

12. The rule is the same as applied to ordinary con­tracts. Thus, in Whitehead v. Burgess, 61 N.J.L. 75, 38 AtI. 802 (1897), Van Syckel, J., declared: “Where an action is founded upon a contract which at Com­mon Law is valid without writing, but which the Statute requires to be In writing, the Declaration need not Count upon or take notice of the writing. If an action is brought upon a promise to pay the debt of another, the Declaration need not aver that the promise is in writing, even if such be the fact.”
See, also, Elting V. Vanderlyn, 4 Johns. (N.Y.) 237 (1809).
13. 20 Car. II, e. 3, 1 (1676).
14. 32 Hen. VIII, c. 1.
15. 34 Hen. VIII, e. 5.
16. 1 Saund. 276a, n. 2, 85 Eng.Rep. 336.
17. Porter v. Gray, Cro.ElJ.z. 245, 78 Eng.Rep. 500; Lathbury v. Arnold, I Sing. 217, 150 Eng.Rep. 88 (1823).

11. Co.Lltt. Oa (PhiladelphIa, 1812).

IS. VIn.Abr. tit. Grants ((La.).



Ch. 5

at Common Law, be valid without a deed or other written instrument, it need not be al­leged in the pleading, is one which exists in practice, at least. Thus, in making title un­der a lease for years, by indenture, it is mis-ternary to plead the indenture, though the lease was good, at Common Law, by parol, and need now be in writing only where it is for a term of more than three years, and then only by reason of the Statute of Frauds?9

The second exception involves a case in which it is not necessary to allege a deed, though the Common Law requires one. Thus, in pleading a Demise by husband and wife, it is not necessary to show that it was by deed, though both by the Common Law and by Statute such a Demise could be by deed only.29
47. It is not generally necessary to allege Title in the opposing party more precisely than Is sufficient to show a liability in the party charged, or to defeat his present claim.
THUS far we have been discussing the case of a party alleging Title in himself or in some other under whose authority he pleads. It remains for us to consider the case of a par­ty’s alleging Title in his adversary. The rule on this subject is that it is not necessary to allege Title more precisely than is sufficient to show a liability in the party charged, or to defeat his present claim. Except as far as these objects require, a party cannot be com­pelled to show the precise estate his adver­sary holds, even in a case where, if the same person were pleading his own Title, a full and complete statement would be necessary. The reason for the difference is that a party must be presumed to be ignorant of the particulars
19. %ee the example, 2 Chitty, on Pleading, c. Xi, 540 (5th ed., London, 1831).
SO. Wiseot’s Case, 2 Co. 61b, 76 Eng.Rep. 558 (1590);

Turney v. Sturges, 1 Dyer 91b, 73 Eng.Rep. 198;

Bateman v. Allen, Cro.Eliz. 435, 78 Eng.Rep. 678;

ChiMes v. Wescot, Cro.Eliz, 482, 78 Eng.Rep. 733.

of his adversary’s Title, though he is bound to know his own.2
48. To show a liability in the party charged, it is generally sufficient to allege a Title of Possession.
AS in the case where a party pleads his own Title or that of another through whom he claims, and that Title need not be fully and precisely stated, it is also generally suffi­cient, where the opposite party is to be charged with liability, to allege merely a Title of Possession in such party. The same distinctions as to the nature of the interest or right, however, are still to be observed; and therefore, if the interest is by way of re­version or remainder, and cannot be sustained by proof of some present interest in chattels or the actual possession of land, this form of pleading Title is inapplicable. There are cases in which, to charge a party with mere possession, would not be sufficient to show his liability. Thus, in declaring against a person in Debt for Rent, as assignee of a term of years, it would not be sufficient to show that he was possessed, but it must be shown that he was possessed as assignee of the term. Where a Title of Possession is thus inapplicable or insufficient, and some other or superior Title must be shown, it is still unnecessary to allege the Title of an adversary with the same precision and ac­curacy as where the party states his own,22 the requirement being only that the Allega­tion shall be sufficient to show the liability charged. Therefore, though, as we have seen, it is the rule, with respect to a man’s
21. Rider v. Smith, 3 T.R. 760, 100 Eng.Bep. 847

(1790); Derisley v, Custance, 4 PIt. 77, 100 Eng.

Rep. 903 (1790); Attorney General v. Meller, I3ardr.

459, 145 F]ng.Rep. 547 (1792). And see, also, Blake v.

Foster, S P.R. 487, 101 Eng.Rep. 1~05 (1399); Den

ham v. Stephenson, I Salk. 355, 91 Eag.Rep. $10


22. 5 Cornyn’s Digest, “Pleader,” C. 42 (Dublin~ 1793).

Sec. 49



own Title, that the commencement of Par­ticular Estates should be shown, unless al­leged by way of Inducement, yet, in pleading the Title of an adversary, it seems that this is, in general, not necessary.23 So, in cases where it happens to be requisite to show whence the adversary derived his Title, this may be done with less precision than where a man alleges his own. And, in general, it is sufficient to plead such Title by a que estate; that is, to allege that the opposite party has the same estate, or that the same estate is vested in him, as has been prece­dently laid in some other person, with­out showing in what manner the estate passed from the one to the other.24 Thus, in Debt, where the defendant is charged for rent, as assignee of the term, after several mesne assignments, it is sufficient, after stat­ing the original demise, to allege that, “after making the said indenture, and during the term thereby granted, to wit, on the

dayof ,intheyear ,at

______ all the estate and interest of the said E.F. [the originai lessee] of and in the said demised premises, by assignment, came to and vested in the said C.D.”; without fur­ther showing the nature of the mesne assign­ments.26 But, if the case be reversed, that is, if the plaintiff, claiming as assignee of the reversion, sue the lessee for rent, he must precisely show the conveyances, or other media of Title, by which he became entitled to the reversion; and to say, generally, that it came by assignment, will not, in this case, be sufficient, without circumstantially alleg­
23. Blake v. Foster, S P.R. 487, 101 Eng.Itep. 1505 (1709).
24. Attorney General v. Mefler, Bardr. 459, 145 Eng.

Rep. 347; Duke of Newcastle v. Wright, I Lev.

100, 83 Eng.Rep. 363 (1665); Derisley v. Custanee,

4 P.R. 77, 100 Eng.Rep. 903 (1790); Cornyn’s Digest

“Pleader” B. 23, E. 24 (Dublin, 1793); Ce.Lltt. 121a

(Philadelphia, 1812); Bristol v. Guyse, 1 Saund.

112, n, 3, 85 Eng.Rep. 122,
25. Bristol v. Guyse, 1 Saund. 112, p. 1, 85 Eng. Rep. 322; Attorney General v: Meller, Hardr. 459, 143 Eng.Rep. 547.

ing, all the mesne assignments.~ Upon the same principle, if Title be laid in an ad­versary by descent, as, for example, where an Action of Debt is brought against an heir on the bond of his ancestor, it is sufficient to charge him as heir, without showing how he is heir, viz, as son, or otherwise,27 but if a party entitle himself by inheritance, we have seen that the mode of descent must be alleged.

49. Title is ordinarily of the substance of the issue, and must be strictly proved.
THE manner of showing title, both where it is laid in the party himself, or the person whose authority he pleads, and where it is laid in his adversary, having been now con­sidered, it may next be observed that the title so shown must, in general, when issue is taken upon it, be strictly proved. With respect to the Allegations of place, time, quantity, and value, it has been seen that, when issue is taken upon them, they, in most cases, do not require to be proved as laid; at least, if laid under a videlicet. But with respect to title, it is, ordinarily, of the Substance of the Issue, and there­fore, required to be maintained accurately by the proof. Thus, in an action on the Case, the plaintiff alleged in his Declaration that he demised a house to the defend­ant for seven years, and that, during the term, the defendant so negligently kept his fire that the house was burned down. And the defendant having pleaded ncm denzisit modo et forma, it appeared in evidence that the plaintiff had demised to the defend­ant several tenements, of which the house in question *as one; but that, with respect to this house, it was, by an exception in the
20. BrIstol v. Guyse, 1 Saund. 112, n. 1, 85 Eng. Rep. 122; Pitt v. Russell, 3 Lee. 19, 83 Eng. Rep. 555.

27. Denbam v. Stephenson, 1 Salk. 355, 91 Eng.Rep.
310 (1703).



Cli. 5

lease, demised at will only. The Court held that though the plaintiff might have declared against the defendant as tenant at will only, and the action would have lain, yet, having stated a demise for seven years, the proof of a lease at will was a Variance, and that in substance, not in form only; and, on the ground of such Variance, Judgment was giv­en for the defendant.28
50, Where the opposite party is estopped from denying a Title, none need be shown.
THE rule which requires that Title should be shown having been now explained, it will be proper to notice an exception to which it is subject. This exception is that no Title need be shown where the opposite party is estopped from denying the title. Thus, in an action for goods sold and delivered, it is unnecessary, in addition to the allegation that the plaintiff sold and delivered them to the defendant, to state that they were the goods of the plaintiff; for a buyer who has accepted and enjoyed the goods cannot dis­pute the Title of the seller. So, in debt or covenant brought by the lessor against the lessee on the covenants of the lease, the plaintiff need allege no Title to the premises demised, because a tenant is estopped from denying his landlord’s Title, On the other hand, however, a tenant is not bound to admit Title to any extent greater than might au­thorize the lease; and therefore, if the ac­tion be brought, not by the lessor himself, but by his heir, executor, or other repre­sentative or assignee, the title of the former must be alleged, in order to show that the reversion is now legally vested in the plain­tiff in the character in which he sues. Thus, if he sue as heir, he must allege that the lessor was seised in fee, for the tenant is not bound to admit that he was seised in fee;
U. Ciudlip v. Bundle, Cartb. 202, 90 Eng.Rep. 721. See, also, Bristow v. Wright, 2 Doug. 665, 99 Eng. Rep. 421 (1781).

and, unless he was so, the plaintiff cannot claim as heir.29

51. In general, where a defendant justifies under a writ, warrant, precept, or other au­thority, it must be particulary set forth in his pleading; and in such case he should also show that such authority had been substantial­ly pursued.
Exception—Where an authority may be ver­bal and general, it may be pleaded in general terms.
THIS is an instance, under the general rule requiring certainty in the pleadings, where a greater degree is required in the Plea than in the Declaration. Where in an Action of Trespass, the defendant seeks to Plead a Justification under such an au­thority as is mentioned above, he must set it forth particularly in his pleading, and it is not sufficient to Allege Generally that he committed the act complained of by virtue of a writ, warrant, or precept de­livered to him.3° It must not only be spe­cifically described, but the defendant, in order to render his Justification complete, should further aver that such authority was substantially pursued. The principle of the rule is that as a Plea in Bar, to be effective, must answer all that it assumes to answer, so all material Allegations which make up the answer it contains must be fully and particularly stated, or the Plea will be de­fective on Demurrer,3’ In all cases, there­fore, where the defendant justifies under ju­dicial process, he must set forth the facts in detail, though there are important distinc­tions as to the degree of particularity re­
29. Cuthbertson v, Irving, 4 Hurl. & tC. 742, 157 Eng. Rep. 1034 (1859); Smith v. Scott, 6 0.11. (ItS.) 771, 141 Eng.Rep. 654 (1SSO).
3°- Lamb v~ Mills, 4 Mod. 377, 87 Eng.Bep. 453;

Collet v. Lord KeIth, 2 East 260, 102 Eng.Rep. 368

(1802); RIch ‘vc Woolley, 7 RIng. 651, 131 Eng.Eep.

251 (1831); Co.Lltt. 283a, 303b (PhiladelphIa. 1812);

Comyn’s Digest “Pleader” E. 17 (DublIn, 1703).

31. Lamb v. MIlls, 4 Mod. 377, 87 Eng.Rep. 45a

Sec. 52



qttired by the rules of pleading in different eases. These may be stated as follows: (1) It is unnecessary for any person justifying under judicial process to set forth the cause of action in the original suit in which such process issued.32 (2) If the Justification is by an officer executing a Writ, he is required to plead such Writ only, and not the Judg­ment on which it was founded; ~ but if such Justification is by any one except such of­ficer, even a party to the action, the Judg­ment must be set forth as well.34 (3) Where an officer thus justifies, he must show that the Writ was duly returned, if a return is legally necessary.35 (4) When it is neces­sary, for the purposes of a justification, to Plead the Judgment ef a Court of Record, this may be done without setting forth any of the previous proceedings in the suit in which such Judgment was rendered.3° (5) When the Justification is founded on process issuing out of an Inferior Court or a Court of Foreign Jurisdiction, the nature and ex­tent of the Jurisdiction of such Court should be shown, as well as that the cause of ac­tion arose within ~ In general, in plead­ing the Judgments of Inferior Courts, the previous proceedings are stated to some ex­tent, though they may be set forth in a concise and summary manner.
32. Rowland v. Veale, 1 Cowp. 18, 98 Eng.Rep. 944 (1774); Bellc V. Broadbent, 3 T.R. 183, 100 Eng.Rep. 522 (1789).
33. Andrews v. MorrIs, 1 Q.B. 3 (1841).
34. Brltton t Cole, Garth. 443, 90 Eng.Rep. 856;

Turner v. Felgate, 1 Lev. 95, 83 Eng.Rep. 315;

See, also, Morse v. James, WIlles 122, 125 Eng.Rep.

1093 (1738).

35. Mlddleton v. PrIce, 2 Str. 1184, 93 Eng.Rep. 1115;

Cheasley v. Barnes, 10 East 73, 103 Eng.Rep. 703

(1808); Shortland v. Govett, 5 Barn. & Ci. 485, 108

Eng.Rep. 860 (1826).
St 9 Wentworth, A Complete System of Pleadings, 22, 53, 120, 351 (London, 1797—99).
SI. It Is otherwise if the Justification Is founded upon the Process of a Court of Record. Collett v. Lord KeIth, 2 East 280, 102 Eng.Rep. 388 (1802); Moravia

v. Sloper, Willes 30, 125 Eng.Rep. 1039 (1737).

Cognizance in Repievin

AN exception to the general rule exists, however, where an authority may be con­stituted verbally and generally, and it is allowable to plead it in general terms. An instance of this is the case of the entry of a Cognizance in an Action of Replevin, where the defendant, admitting the taking of the goods, may justify simply as an officer, with­out alleging any warrant for the taking.38

52. In all pleadings where a deed is alleged under which the party claims or justifies, Pro­fert of such deed must be made or the omission excused. But the rule is not applicable unless the deed is the foundation of the Action or Defense.
IF either plaintiff or defendant alleges an instrument under seal,3° unless in the case of letters testamentary or of administra­tion,4° and founds his Claim or Defense di­
38. Mathews v. Cary, 3 Mod. 138, 87 Eng.Rep. 88 (1703).
39. Gould, A Treatise on the Principles of Pleading. Pt II, c. I, Procedure, 75 (6th ed. by Will, Albany, 1909).
Alabama: Magee v. Fisher, 8 Ala. 320 (1845); illinois:

Mason v. Buekmaster, I Ill. (Breese) 27 (1820) ; Cat-ton v. Dimmitt, 27 III. 400 (1862); Georgia: Chica­go Bldg. & 311g. Co. v. Talbotton Creamery & Mig. Co., 106 Ga. 84, 31 8.11. 800 (1896); Vermont: Lee v. Follensby, 80 Vt. 182, 67 A. 197 (1907).

There is no right to have Oyer of a deed referred to

in the plaintiff’s Declaration merely by way of In­ducement Lsnghorne v. Richmond Ry. Co., 01 Va. 369, 22 SE. 150 (1895).

40. Maryland: Brown v. Jones, 10 Gill. & 3. (Md.) 334

(1839); Massachusetts: Thatcher v. Lyman, 5 Mass.

260 (1809); New Hampshire: Judge of Probate v.

Merrill, 8 N.H. 256 (1838).

In actions by administrators and dxecutors the rule

requiring profert was extended to letters testa­mentary and of adminIstration. 1 Chitty, on Plead­ing, e. IV, Of the Declaration, aSS (Phila.1828); Gould, A Treatise on the Principles of Pleading, Pt. II, c. I, Procedure, 79 (6th ed. by Will, Albany, 1909).

The effect of profert was to enable the opposite party to demand Oyer, or hearing of the Instrument, be­fore he was required to plead.


rectly upon it, he must generally make a Statement or Profert in his pleading that he brings it into Court to be shown to the Court and his adversary. The import of the statement is that the party has the deed ready to give the opponent Oyer, or an in­spection of it, if required.4’ If the instru­ment was lost or otherwise beyond the pow­er of the party to produce it, an excuse for the omission was necessary, and the party was not required to produce it.42
Thus, in an Action of Debt on a Bond, the p]aintiff must make Profert of the bond, and if the defendant in an action were to set up a release under seal he would have to make Profert of it.4~ This in ancient times
4’. Illinois: Lester v, People, 150 II]. 408, 23 N.E.

387, 37 N.E. 1004, 41 Am.St.1tep. 375 (1894); Massa­chusetts: Powers v. Ware, 2 Pick. (Mass.) 451

(1824); Vermont: Austin v. INns, 1 Tyler (Vt.) 308

(1802); Svcst Virginia: Brooke County Court v.

United States Fidelity & Guaranty Co., 87 W.Va. 504,

105 3.11. 787 (1921). See, also, Pleading, 31 Cyc, 553.

42. Gould, A Treatise on the Principles of Pleading, Pt. II, c. 1, Procedure, 81 (6th ed. by \ViIl, Albany, 1900).

Connecticut: Paddock v. Higgins, 2 Root (Conn.) 316 (1795); Kentucky: Barbour’s Adm’s v. Arclmr, 3 Bibb. (Ky.) 8 (1813); Massachusetts: Powers v. Ware, 2 Pick. (Mass.) 451 (1824).

And so if pleaded by a stranger to the deed. Birney V. Haim, 2 Litt. (Ky.) 262 (1822).

This rule applies only at Common Law, being one re­lating to purely formal Allegations in Pleading. An inspection of written Instruments upon which an Action is founded, or which are in any way mate­rial to it, is provided for by special provisions in all the Codes. Judge of Probate v. Merrill, 6 N.H. 256 (1833).

43. “For it is to be observed that the Forms of Plead­ing (10 not in general require that the whole of any instrument which there is occasion to allege should be set forth. So much only is stated as is material to the purpose, of which the example last cited will also serve for illustratioa. The other party, how­ever, may reasonably desire to hear the whole, and this either for the purpose of enabling him to as­certain the genuineness of the alleged deed, or of founding on some part of its contents, not set forth by the adverse pleader, some matter of answer. He Is therefore allowed this privilege of hearing the deed read verbatim.” Stephen, A Treatise on the Principles of Pleading in Civil Actions, c, I, Of the

was done by actually producing the deed in Court at the time of the Oral Allegations, but it is now done by an Allegation in the Dec­laration or Plea, as the case may be, of its production in court,—thus: “By his certain writing obligatory, sealed with his seal, and now shown to the Court,” etc.44 A failure to comply with this rule renders the Declara­tion or Plea demurrable.



53. Contracts and conveyances are to be pleaded according to their legal effect or op­eration. As an instrument or other matter al­leged in pleading must principally and ul­timately be considered with reference to its effect in law, it should therefore be stated ac­cording to its Legal Effect or operation and not according to its terms.

The pleader is ordinarily allowed to set up the instrument in its very words, if he prefers not to construe its Legal Effect.

CONTRACTS and conveyances are to be pleaded according to their legal effect or op­eration.45 The meaning of the rule is that,
Proceedings in an Action, From Its Commencement to Its Termination, 100 (3d Am. ed. by Tyler, Wash’ ington, D. C. 1805).
44. That setting out an instrument in full is a suf­ficient Profert, see Regents of the University of Michigan v. Detroit Young Men’s Soc., 12 Mich. 138 (1863).
45. Bacon, Abridgment of the Law “Pleas” 1. 7 (Lon­don, 1798); Comyn’s Digest “Pleader” C. 37 (Dub­lin, 1793); Chester v. Willon, 2 Saund. 97, 07b, n. 2,

85 Eng.Rep. 770. English: Barker v. Lade, 4 Mod.

150, 87 Eng.Iiep. 316 (1693); Moore v. Earl of Plym­outh, 3 Barn.&Aid. 66, 106 Eng.Rep. 587 (1810);

Stroud v. Lady Gerrard, 1 Salk. 8, 91 Eng.Rep. 7;

Howell v. Richards, 11 East 633, 103 Eng.Rep. 1150

(1809); Connecticut: Andrews v. Williams, 11 Coun.

326 (1886); Illinois: Crittenden v. French, 21 Ill.

598 (1859); Archer v. Claflin, 31 III. 317 (1863);

Curry v. People, 54 III, 263 (1873); Massachusetts:

Lent v. Padelford, 10 Mass. 230, 6 Am.Dcc. 119

(1813); PresIdent, etc. of Commercial Eaak v.

French, 21 Pick (Mass,) 489, 32 AmDec. 280 (1839);

New Hampshire: Keyes v. Dearborn, 12 N.H. 52

(1841); New York: Hosley v. Black, 28 N.Y. 438

(1863); West Virginia: Riley v. Yost. 58 W.Va. 213,

52 5.11. 40, 1 LBS. (N.S.) 777 (1905); Brown V.

Ch. 5

Sec. 53



in stating an instrument or other matter in pleading, it should be set forth, not according to its terms or its form, but according to its effect in law; and the reason seems to be that it is under the latter aspect that it must principally and ultimately be considered, and therefore to plead it in terms or form only is an indirect and circuitous method of Al­legation. Thus, if a joint tenant conveys to his companion by the Words “gives,” “grants,” etc, his estate in the lands holden in jointure, this, though in its terms a “grant,” is not properly such in operation of law, but amounts to that species of convey­ance called a “release.” It should therefore be pleaded, not that he “granted,” etc., but that he “released,” etc.4° So, if a tenant for life grant his estate to him in reversion, this is, in effect, a surrender, and must be pleaded as such, and not as a grant.47 So, where the Plea stated that A was entitled to an equity of redemption, and, subject thereto, that B Was seised in fee, and that they, by lease and re-lease, granted, etc., the premises, ex­cepting and reserving to A and his heirs, etc., a liberty of hunting, etc., it was held upon General Demurrer, and afterwards upon Writ of Error, that as A had no legal interest in the land, there could be no reservation to him; that the Plea, therefore, alleging the right, though in terms of the deed, by way of reservation, was bad; and that if, as was contended in argument, the deed would op­erate as a grant of the right, the Plea should have been so pleaded, and should have al­leged a grant, and not a reservation.48
Cook, 77 WVa. 356, 87 3.11. 454, LB.A,1916D, 220

(1910); Wisconsin: Grannis v. Hooker, 20 Wis. 65

46. Chester v. Willon, 2 Saunders 07, 85 Eng.Rep. 770 (1670); Barker v. Lade, 4 Mod, 150, 151, 87 Eng. Rep. 316 (1694).
47- Barker v. Lade, 4 Mod. 151, 87 Eng.Rep. 316 (1694).
II. Moore v. Earl of Plymonth, 3 Earn. & Aid. 60, 100 Eng.Rep. 587 (1819).

While the party must state correctly the contract or instrument on which he relies) and, if the evidence differ from the state­ment, the whole foundation of his action will fail, he is not compelled to follow the precise form of words in either, and it suffices if he alleges their true legal effect or operation. The rule is thus one of utility, since it en­ables a party to state his matter briefly and With precision, without setting out the terms of contracts or instruments which often, even in modern conveyancing, reach an in­terminable length, and to support his allega­tions by the offer of the contract or instru­ment itself at the trial. A deed may often be thus pleaded Without using a word which ft contains, except the names of the parties, the dates, and the sums.49 In all cases, care must be taken that the legal effect of the contract or instrument is accurately stated, or the result will be the same as if the state­ment of either in detail is incorrect; that is, a Variance.

The rule in question is, in its terms, often confined to deeds and conveyances. It ex­tends, however, to all instruments in writ­ing, and contracts, written or verbal; and, indeed, it may be said, generally, to all mat­ters or transactions whatever which a party may have occasion to allege in pleading, and in which the form is distinguishable from the legal effect.M Where, however, a written instrument is set out in hace verbcz) it will be sufficient, and the pleader need not de­dare further its Legal Effect, as the Court will construe it for him. If he does aver its
49. Waugh v. Russell, I Marsh. 311, 5 Taunt. 707, 328 Eng.Eep. 868 (1814).
5°. Stroud v. Lady Gerrard, I Salk. 6, 91 Eng.Rep, 7,

Pleading facts according to their legal effect is suf­ficient. Dobbins V. Delaware, L, & W. B. Co., 177

App.Div. 132, 163 N.Y.Supp. 849; United States

Printing & Lithograph Co. v. Powers, 183 AppjDiv.

513, 170 N.Y.supp. 814 (1918).

KaiSer & Reppy Com.Law Pldp. H.B._6



Ch. 5

Legal Effect erroneously, the Averment will be rejected as surplusage.5

It is a technical rule that Common-Law Pleading cannot be done by exhibits. In the case of Pcarsons v. Lee,52 the Illinois Court said: “To the Declaration is annexed a copy of the agreement, and if the Court were per­mitted to look to that copy, which it cannot see with legal eyes, because it has been con­stantly decided by this Court to form no part of the Declaration, it might perceive that the agreement is signed by the defendant only.” The rule that a separate writing can­not be made a part of the pleading, by at­taching it thereto and referring to it there­in, is changed in Code Pleading.
54. When the object of an action is to re­cover damages, an Essential Allegation of the Declaration is that the injury is to the Dam­age of the plaintiff, and the amount of that Damage must be specified. The recovery can­not, in general, exceed the amount thus stated, though it may be less.

General Damages are such as may be regard­ed as the direct, natural, or probable result of the wrong complained of, and may be stated in a general manner.

And Special Damages are those which the law does not regard as the necessary conse­
51. Illinois: Continental Life Ins. Co. v. Rogers, 119 Ill. 474, 10 N.E. 242, 59 Am.Rep. 810 (1887); North V. Kizer, 72 III. 172 (1850); Binx v. Tyler, 79 III. 248 (1859); Smith v. Webb, 10 Ill. 105 (1819); Wailer v. Village of River Forest, 259 Ill. 223, 230, 102 N.E. 290 (1913); Maine: Bean v. Ayres, 67 Me. 482 (1878). The legal off cot of writings attached to the pleadings is for the Court, and cannot be controlled by the Averments of the party. Robert Grace Con­tracting Co. v. Norfolk & W. By. Co., 259 Pa. 241, 102 Atl. 956 (1918).
5?. Pearsoos V. Lee, 1 Scam. (111.) 193 (1835). An In­strument attached to, but riot set out in, a Declara­tion Is no part thereof. Charles H. Thompson Co. v. Buns, 199 IlI.App. 418 (1916). Copy of note not part of Declaration. McFadden V. Deck, 193 111. App. 178 (1015); Sterenberg V. Beach, 219 Ill.App. es (1021); Mllligan v. Keyser, 52 Flit. 331, 42 South. 367 (1900); Gulf C. & S. F. By. Co. v. Cities Service Co. (D.C.) 270 Fed. 994 (1923).

quences of the wrongful act, and must be set forth specially and circumstantially, or evidence of them will not be received on the Trial.

IN those cases where damages are the principal object of the action, the amount laid in the Declaration should be sufficient to cover the real demand, as the plaintiff can­not generally recover a greater amount than he has declared for and laid in the conclu­sion of his Declaration53 If a Verdict should be for a greater amount, the surplus must be remitted before Judgment entered,M but no inconvenience will arise if the amount claim­ed is greater than that proved, as the Jury may find a less sum; and it is to be presum­ed, after Verdict, that the amount of dam­ages ascertained by them was assessed ac­cording to the proof.55 If the Declaration, however, expressly avers that the plaintiff has sustained Damages from a cause occur­ring subsequent to the Commencement of the Action, or previous to the plaintiff having any right of action, and the Jury gives entire Damages, judgment will be arrested)1°
At Common Law, no Damages were laid in Real Actions, since the object of the suit was the recovery, not of damages, but of the land withheld. There may be other instanc­
53. 2 Tidd, The Practice of the Court of Kings Bench, in Personal Actions, e. XXXVII, Of Dam­ages, 806 (Philadelphia 1807); Alabama: McWhor­ter V. Sayre, 2 Stew. (Ala.) 225 (1829); Connecticut:

Treat v. Barber, 7 Conn. 274 (1828); Illinois: Mor­ton v. McClure, 22 flI. 257 (1804); New York: Fish V. Dodge, 4 Denio (N.Y.) 311, 47 Am.Dec~ 254 (1847);

Pennsylvania: Dennison v. Leech, 9 Pa. 164 (1848).
54. Maryland: Harris v. Jaffray, 3 Bar. & J. (Md.)

546 (1819); New Hampshire: Bolt V. Molony, 2 N.H.

322 (1821); North Carolina: Grist V. Hodges, 14 N.

C. 203 (1831); Virginia: Tennant’s Ex’r v. Gray, 5

MuM. (Vs.) 494 (1817).
55. Van Rensselaer’s Ex’rs v. Piatner’s Ex’rs, 2 Johns.Cas. (N.Y.) 18 (1800).
56. See, Kentucky: Wilson’s Adm’r v. Bowens, 2 TB.

Mon. (Ky.) 87 (1825); Massachusetts: Warner v.

Bacon, S Gray (Mass.) 406, 69 Am.Dee. 258 (1857);

Pieree v. Woodward, 6 Pick. (Mass.) 206 (1878);

Pennsylvania: Gordon v. Kennedy, 2 BIn. (Pa.) 287


Sec. 54



cs where thc Allegation of Damages is un­necessary; as in scire facias upon a Record, which is merely an action to obtain Execu­tion upon an ascertained right of Record; and in a penal action, at the suit of a com­mon informer, where the plaintiff’s right to the penalty did not accrue until the bringing of the suit, and no Damage could therefore have been sustained.

The force and effect of the ancient rules of pleading in modern times is nowhere better illustrated than by this very rule as to dam­ages and the manner of stating them, and perhaps no better commentary upon the im­portance of a thorough understanding of those rules can be found. We have above seen that in every Personal or Mixed Action the Declaration should allege some damage, and this rule has never been changed, though its force in cases where damages are merely nominal seems rather doubtful. The method of applying the rule is as applicable today as at any former time, and the establishment of Code Practice has made no difference; the distinction above noted being always observ­ed, as the pleader will find to his cost if it be disregarded. This distinction is an im­portant one, as it arbitrarily controls the manner in which the claim for Damages must be stated.
When the damage claimed is the necessary and proximate consequence of the act com­plained of, the law presumes it to have re­sulted from that act, and it is sufficient to describe it in general terms, for the reason that the opposite party will not be unduly

taken by surprise.5’ But, when the plaintiff suffers some peculiar or unusual loss it is essential that the resulting Damage, called “Special Damages,” be shown with particu­larity.~~ Such Damages are either super-added to General Damages arising from an act injurious in itself, as when some particu­lar loss results from the utterance of slan­derous words actionable in themselves, or such as arise from an act indifferent, and not actionable in itself, but injurious only in its consequences, as when words become ac­tionable only by reason of the Special Dam­age ensuing.59

57. Thus, when a person is slandered in his trade, the Law infers that aa injury resulted to him, with­out its being particularly alleged. See Hutebinson

V. Granger, 13 vt. 380 (1841); West Chicago St. B. Co. v. Levy, 182 Ill. 525, 55 N.E. 554 (1899) (general damages from injury to the back, spine, nnrl brain include atrophy of the optic nerve).

54. See Jacksonville Electric Co. ‘c. Batehis, 54 Fla.

192, 44 South. 933 (1907). Whittier, Cases in Com­mon Law Pleading, 410 (London, 1876). Illinois:

Miles v. Weston, 60 III. 361 (1871); Adams v. Gard­ner, 78 III. 568 (1875); Woodwortb V. Woodburn, 20

III. 184 (1858); blattingly v. Darwin, 23 III. 618

(1860); Massachusetts: Adams V. Barry, 10 Gray

(Mass.) 301 (1858); Maine: Hunter v. Stun-art, 47

Me. 419 (1859); Michigan: Gilbert v. Kennedy, 22

Mich. 117 (1871); New I1ampsIi~re: Willey V. Paul,

49 N.H. 397 (1570).

59. English: Westwood v. Cowne, I Starkie, 172, 171 Eng.Rep. 436 (1816); Illinois: Swain & Son v. Chi’ cago, B. & Q. H. Co., 252 III. 022, 97 N.E. 247, 38 L. HA. (N’.S.) 763 (1912) (gist of private action for public nuisance is special damage different in kind from that of general public). Massachusetts: Count Joannes v. Burt, 6 AlIen (Mass.) 236, 83 Am.Dee. 625 (1863); Cook v. Cook, 100 Mass. 194 (1868); New

York: Beach v. Ranney, 2 Hill (N.Y.) 309 (1842).




55. Statements to be Positive.

56. Certainty in General.

57. When a Genera] Mode of Pleading is Proper.

58. When General Pleading is Sufficient.

59. What Particularity is Generally Required.

Facts in Knowledge of Adversary.

inducement or Aggravation. Acts Regulated by Statute.

What May Be Omitted—Matters Judicially Noticed.

64. Matters in Anticipation.

65. Matters Implied.

66. Matters Presumed.

67. Surplusage.

68. Descriptive Averments.

69. Repugnancy.

70. Ambiguity or Doubt.

71. Pleadings in the Alternative.

72. Duplicity in General.

73. Inducement.

74. Consequences of Duplicity.

75. Pleadings to be True.

76. Conformance to Customary Forms.

55. Pleadings must be positive in their Form and not by way of Recital. The matter of Claim or Defense must be stated in direct and positive terms, in order that it may be directly and distinctly traversed.
THE meaning and reason of this Rule would seem sufficiently apparent from its mere statement. Its province is to restrict
1. In general, on the requirement of Certainty in Pleadings, see:
Treatises: Stephen, A Treatise on the PrInciples of

Pleading In Civil Actions, C. II, Of the Principal

Rules of Pleading, ~ IV, Of Rules Which Tend to

Produce Certainty or Particularity In the Issue,

267—344 (3rd ed. by Tyler, Washington, 1). C. 1893);

Perry, Common-Law Pleading: Its History and

Principles, c. XII, Of Rules Which Tend to Produce

Certainty or Particularity in the Issue, 323—381

the Parties to such Forms of Averment as directly assert the Facts upon which they re­ly, in order that the adversary may be able to raise an Issue admitting of decision upon his Denial or Traverse. An act should not there­fore be stated by Way of Recital, that is, un­der a “whereas” or a “wherefore,” but the Pleading should allege its commission di­rectly and positively.2 If, for instance, a Dcc-
(Boston, 1897); Gould, A Treatise on the Principles of Pleading, Pt. III, Of Pleading, Division II, Rules Applicable to Pleadings in General, e. I, The Major Requisites of Pleading, 234—263 (6th ed. by Will, Al­bany, 1909). Odgers, Principles of Pleading and Practice in Civil Actions in the High Court of Jus­tice, e. VIII, Certainty 99—113 (14th ed. by Sturge, London, 1952).
S. Battrel V. Ohio River By. Co., 34 W.Va. 232, 12 8. B. 699, 11 LilA. 290 (1890); Spiker v. Bohrer, 37





laration in Trespass for Assault and Battery make the Charge in the following Form of Expression, “And thereupon the said A.B., by , his Attorney, complains, for that whereas the said C.D. heretofore, to wit,” etc., “made an assault,” etc., instead of “for that the said C.D. heretofore, to wit,” etc., “made an assault,” etc., it is bad, for nothing is positively affirmed. As such an Allega­tion violates a Rule of Pleading, it creates a Defect in Form, which is fatal only on Spe­cial Demurrer,3 and, further than this, it may now generally be remedied by Amendment. Originally, such a Defect was regarded as one in Substance.4

The Rules of Pleading may be considered under three main heads: First, the Facts
W.Va. 258, 16 SE. 575 (1892); Gould v. Coal & Coke

B. Co., 74 WNa. 8, 81 SE. 529 (1914); Brown v.

Thurlow, 16 Mees. & W 36, 153 Eng.Bep. loss;

Sherland v. Healton, 2 Bulst. 214, 80 Eng.Bep. 1077

(1614); Bacon, Abr. ‘Pleas,” B 4 (London, 1778);

Weltenhall v. Sherwin, 2 Lev. 206, 83 Eng.Rep. 520;

Ilore v. Chapman, 2 Salk. 636, 91 Eng.Itep. 536;

Dunstall -v. Dunstall, 2 Show. 27, 89 Eng.Rep. 771;

Gourney v. Fletcher, 2 Show. 295, 89 Engatep. 949

(1684); Dobbs v. Edmunds, 2 Ld.Rayin. 1413, 92

Eng.Bep. 419 (1725); Wilder v. Handy, 2 Strange

1151, 93 Eng.Bep. 1094 (1740); Marshall v. Riggs, 2

Strange 1162, 93 Eng,Rep. 1101 (1741).

But Matter of Inducement may be so alleged. And in

Assumpsit, the promise Is usually stated by Way of

Recitsi, though the gist of the action. Burton v.

Hansford, 10 W.Va. 470, 27 Am.Rep. 571 (1877);

Sheppard v. Peabody Ins. Co., 21 W,Va. aCS, 377. An Allegation that the plaintiff “claimed” that the

organizer of the corporation made a present of the stock to one of the subscribers is not an Allegation of Fact. Ritrwoller v. Lurie, 176 App.Div. 100, 162 N.Y.S. 475 (1916).
In Common-Law Pleading, the Allegation must be pos­itive, not on information and belief. State ex rd. Ballard v, Greene, 87 Vt. 94, 88 A. 515 (1913).
3. English: Hore v. Chapman, 2 Salk. 683, 91 Eng.

Rep. 536; Brown v. Thu rlow, 16 Mees. & W.

36. 153 Eng.Bep. 1088 (1846). Cf. Massachusetts:

Coffin v. Coffin, 2 Mass. 358 (1821); West Virginia:

Gould v. Coal & Coke, It, Co. 74 W.Va. 8. 81 5.E. 521)

~ Shipman, Handbook of Common-Law Pleading, e. XIX, General Rules as to the Manner of Pleading, ~ 294, Statements to be Positive, 491 (3rd ed. St.

necessary to be Stated; second, by what Kind of Pleading to be Stated; and third, the

Form and Manner of Statement.


56. In general, whatever is alleged in Plead-Mg must be alleged with Certainty, Definite­ness and Precision. A clear, distinct, and com­plete Statement of the Facts which constitute the plaintiff’s Cause of Action or the defend­ant’s Ground of Defense must be made in all Pleadings, in order that due notice may be given to the Adverse Party, and that a Definite and Certain Issue may be produced for decision. Where, however, the Facts lay within the knowl­edge of the defendant, and where no other method was possible, General Allegations were permitted.

THE Concept of Certainty in Pleading in­cludes both particularity and precision. It consists in alleging the Facts necessary so distinctly and explicitly as to show the legal basis of the Right or Defense asserted, give notice to the Adverse Party of what he is called upon to answer, and produce single, clear-cut, well-defined Issues of Fact or of Law for decision.6 The varying amount of particularity required has given rise to at­tempts to define the different Degrees of Certainty. The classic division proclaimed by Lord Coke, however, does not convey any intelligible idea of the distinctions recognized by the law.
Under Coke’s Classification,’ there are three Degrees of Certainty, namely: (1)
5. Supra, note 1.
0. English: Wiatt v- Es~ington, 2 Ldilavm. 1411, 92

Eng.Eep. 418 (1725); Bertie v. Pickering, 4 Burr.

2456, 98 Eng.Rep. 287; Connecticut: Phelps v.

Sill, 1 Day, (Conn.) 315 (1804); West Virginia:

White v. Romans, 29 W.Va. 57, 3 SE. 14 (1887).
Odgers, In his Principles of Pleading and Practice in Civil Actions in the High Court of Justice, c. VIII, 118 (7th €d. by Odgers, London, 1912), states the Rule as follows: “The amount of detail necessary to ensure precision naturally varies with the na­ture of each ease * * There must be particu­larity sufficient to apprise the Court and the other Party of the exact nature of the question to be tried.”

Sec. 56


Paul, 1923).

t Dovastoa v. Payne, 2 RB:. 520, 126 Eng.Rep, 302




Cli. 6

Certainty to a Common Intent; (2) Certain­ty to a Certain Intent in General; and (3) Certainty to a Certain Intent in Every Par­ticular.

The First Degree of Certainty in Coke’s Thin­inflation

A PLEADING is Certain to a Common In­tent when it is clear enough according to rea­sonable intendment or construction, though not worded with absolute precision.8 Com­mon Intent cannot add to a sentence words which have been omitted, the Rule being one of construction only, and not one of addition. This is the lowest Form of Certainty which the Rules or Pleading allow, and is sufficient only in Pleas in Bar, Rejoinders, and such Other Pleadings on the part of the defendant as go to the action.°

The Second Degree of Certainty

CERTAINTY to a Certain Intent in Gen­eral is a higher degree than Certainty to a Common Intent, and means what, upon a fair and reasonable construction, may be called Certain, without referring to possible facts,’° which do not appear except by in­ference or argument,” and is what is re­quired in Declarations,’2 Replications and In­dictments (in the charge or accusation), and In Returns to Writs of Mandamus.’3

S. English: Dovaston v. Payne, 2 H.BI. 526, 126 Eng. Rep. 302 (1790); Vennont: Town of Boyalton v. Royalton & W. Turnpike Co., 14 Vt. 311 (1842).
9. English: Rex v. Home, Cowp. 072, 98 Eng.Itep.

1300 (1777); The King v. Mayor & Burgesses of

Lyme RegIs, 1 Doug. 158, 99 Eng.Bep. 103 (1779);

Illinois: Morehouse v. Fowler, 69 Ill.App. 50 (1896);

Massachusetts: Oystead v. Shed, 12 Mass. 509

(1815); MaIne: ‘Washburn v. Mosely, 22 Me. 160

(1842); 4 Standard Eney.Proc. 835 (1902).
10. Dovaston v. Payne, 2 fl.Bl. 526, 126 Eng.Itep. 302 (1790); Spencer v. Southwick, 9 Johns. (N.Y.) 817.

11. Fuller v. Town of Hampton, 5 Conn. 423 (1824).

12. See Hiidreth v. Becker, 2 Johns.Cas. (N.Y.) 339 (1501’); CoffIn v. CoffIn, 2 Mass. 363 (1807).
Zi King v. Mayor & Burgesses of Lyme Regis, 1 Doug. 158, 99 Eng.Rep. 103 (1779); Andrews V.

The Third Degree of Certainty—to a Certain Intent in Every Particular

CERTAINTY to a Certain Intent in Every Particular requires the utmost fullness and particularity of statement, as well as the highest attainable accuracy and precision, leaving nothing to be supplied by argument, inference or presumption, and no supposable answer wanting.’4 The Pleader must not only state the Facts of his own case in the most precise way, but must add to them such Facts as will anticipate the case of his Adver­sary. This Degree of Certainty is required only in case of Dilatory Pleas and Pleas in Estoppel.’5

With respect to Coke’s tests or Degrees of Certainty, it may be remarked that this is a matter of relative particularity which does not admit of measurement.1° Modern cases take as the standard reasonable Certainty without an attempt to define the Degrees for particular Pleadings.” Excessive Certainty
Whitehend, 13 East. 107, 104 Eng.Rep. 307 (1810)

Dovaston v. Payne, 2 H.Bi. 526, 126 Eng,Rep. 302

14. Lawcs, On Pleading, c. III, Of the General Rules Applicable to the General Divisions of Pleading, 54, 55 (Portsmouth, 1808).
15. Lawes~ On Pleading, c. III, Of the General Rules

Applicable to the General Divisions of PleadIng, 56.

107, 134 (portsmouth, 1808). Dovaston v. Payne, 2

ll.Bl. 526, 126 Eng.Rep. 302 (1790); KIng v. Mayor

& Burgesses of Lyme Regis, 1 Doug. 158, 99 Eng.

Rep. 103 (1779); Casseres v. Bell, 8 Term.Itep. 167,

101 Eng.Rep. 1326 (1799).

The highest degree of certainty Is required only in Fleas winch do not go to the merits of the Action and are therefore not favorably regarded; namely, Dilatory Pleas, which must anticipate possible Re­plies, and Pleas in Estoppel. National Parlor Fur­niture Co. v. Strauss, 75 Ill.App. 276 (1897); Harvey ‘cc Parkersburg Ins. Co., 37 W.Va. 272, 16 SE. 580 (1892).

16. 4 Standsrd Ency.Proc. 836, 837 (1912).
17. David v. David’s AUnt, 06 Ala. 139, 147 (1872); Campbell v. Walker, 1 Boyce (Del,) 580, 76 A. 475 (1910); Weller & Co. v. Camp, 169 Ala. 275, 52 So. 929, 25 L.R.A.(N.S.) 1106 (1910); Coughlln v. Blu­menthal (0.0.) 90 Fed. 920 (1899). See, also, Rains v, Parkersburgs, 31. & I. By. Co., 71 W.Va- 453, 76

Sec. 56
is not required, especially if too great prolix­ity would result therefrom, unless the Law is hostile to the Action or Defense.

In Modern Times, it comes down to little more than this, that in Certain Disfavored

Actions, such as Actions for Defamation; and in Certain Disfavored Defenses, such as

Dilatory Pleas, more Facts must be alleged to make out a prima facie case or to repel hostile construction than in ordinary cases.
Illwstrat ions

IN Pleading the Performance of a Condi­tion or Covenant, it is a Rule, though open to exceptions that will be presently noticed, that the Party must not Plead Generally that he performed the Covenant or Condition; but must show specially the Time, Place, and Manner of Performance; and, even though the subject to be performed should consist of several different acts, yet he must show in this special way the Performance of each.’5

Yet this Rule, requiring Performance to be specially shown, admits of relaxation where the subject comprehends such multiplicity of matter as would lead to great prolixity; and a More General Mode of Allegation is in such cases allowable.

When in any of these excepted cases, how­ever, a General Plea of Performance is Plead­ed, the Rule under discussion still requires the plaintiff to show Particularly in his Rep­SE, 843 (i912~ Taylor v. New Jersey Title Guaran­tee & ‘tnst Co., 70 N.J.L. 24, 56 A. 152 (1903) in which It was held that circumstantial details were not necessary.

llcation in what way the Covenant or Con­dition has been broken; for otherwise no sufficiently certain Issue would be attained. Thus, in an Action of Debt on a Bond condi­tioned for Performance of Affirmative and Absolute Covenants contained in a certain indenture, if the defendant Pleads Generally (as in that case he may) that he Performed the Covenants according to the Condition, the plaintiff cannot in his Replication Ten­der Issue with a mere Traverse of the words of the Plea, viz., that the defendant did not Perform any of the Covenants, etc.; for this Issue would be too wide and uncertain. But he must Assign a Breach, showing spe­cifically in what particular, and in what man­ner, the Covenants have been broken.1°
In an Action of Debt on a Bond conditioned to pay so much money yearly while certain letters patent were in force, the defendant Pleaded that from such a time to such a time he did pay, and that then the letters patent became void and of no force. The plaintiff having Replied, it was adjudged, on Demur­rer to the Replication, that the Plea was bad, because it did not show how the letters patent became void.20
With respect to all points on which Cer­tainty of Allegation is required, it may be remarked, in general, that the Allegation, when brought into Issue, is required to be proved, in substance, as laid; and that the relaxation from the ordinary Rule on this subject which is allowed with respect to Place, Time, Quantity, and Value, does not, generally speaking, extend to other particu­lai~.
10. Plomer V. lloss, 5 Taunt. 386, 128 Eng.Rep. 739 (1814); Sayre ‘cc Minns, Cowp. 577, 98 Eng.Rep. 1248 (1777); Comyn’s Digest, ‘Pleader,” F. 14 (1822).
See also, I Chitty, On Pleading, c. VIII, Of Replica­tions, 1311 (16th Am. ed. by PerkIns, 1882), on Repli~ cation In Actions on bonds, which deny the Effect of Performance, State the Breach with Partleulan It)’ and Coneludo with a Verification.
20. LewIs v. Preston, I Show.KB, 290, 89 Eng.Bejx

580 (1691); Ibid, Skin. 303, 90 Eng.Rep, 136.


10. Comyn’s Digest, “Pleader,” E. 25, 26 (London,

i822); Ontler v. Southern, I Saunders 116, Note 1;

Halsey v. Carpenter, Croiac. 359, 79 Eng.Eep. 307;

Wlmbleton v. Noldrlp, I Lev. 303, 83 Eng,Rep. 418;

Woodcock v. Cole, 1 Sid. 215, 82 Eng.Bep. 1065

(1666); Stone v. Bliss. 1 Bulst. 43, 80 Eng.Rep.

747 (1610); Fitzpatrick v. Robinson, 1 Show. 1, 89

Eng.Rep. 407; Austin v. Jervoyse, Bob. 69, 80 Eng.

Rep. 219 (1615); Austen v. Cervas, Bob. 77, 80 Eng.

Rep. 226 (1615); Brown v. Bands, 2 Vent. 156, 80

EngRep. 365; Braben v. Bacon, Cro.Ellz. 916, 78

Eng.Rep. 1137 (1602); Codner v. Dalby, Cro.Jne. 363.

70 En~Rep. 311; Léneret v. Rivet, Cro,Jac. 503, 79

Eng.Rep. 429.



Ch. 6


57. A General Mode of Pleading is allowed when great prolixity is thereby avoided. And a Statement of Material Facts in a Pleading with unnecessary particularity, where a brief and Concise Allegation would be sufficient, not only tends to cause prolixity and confusion, but may subject the Party thus Pleading to the

penalty of a Variance, by his inability to prove it as alleged.

WHILE the form in which the Rule above is stated has been objected to as indefinite, its extent arid application may be collected with some degree of precision from the de­cided cases,21 and by considering the limita­tions which it necessarily receives from the Rules as to Certainty heretofore mentioned. It substantially covers the same ground, and rests upon the same principle, as the Rule that a Pleading must State Facts, and not Evidence, and may be considered as applica­ble whenever an Allegation of the Facts in detail would carry the Pleading to an unrea­sonable length by Stating matters proper to be shown in Evidence. Besides the benefit derived from thus confining the Pleadings to reasonable limits, a General Mode of stating the existence of Facts involving in them­selves matters of detail may often preserve the Pleader from exposing his Allegation to the danger of a Variance, since, if he at­tempts to state all such matters, he must do so correctly, or his Proof will not correspond.
21~ Coryton v. Lithebyc, 2 Saund. 110 b; Lord Ar­lington v. Merricke, 2 Saund, 411, Notes 3 & 4.
English: Jermy & Jenny, T.Raym. 5, 83 Eng.Itep. 4 (1060); J’Anson v. Stuart, 1 Term.It. 753, 99 Eng. Rep. 1359 (1787); Cornwahis v. Savery, 2 Burr. 772, 97 Eng.Rep. 555 (1759); Braban v. Bacon, Cro.Eliz.

916, 78 Eng.Rep. 1137 (1602); Cryps v. Baynton, 3 Bulst. 31, 81 Eng.Rep. 26 (1614); Barton v. Webb, 8 T.B. 459, 101 Eng.Rep, 1458 (1800); Hill v. Mon­tague, 2 N. & 5. 378, 105 Eng.Bep. 422 (1814); Friar ‘cc Grey, 15 4B. 891; New Hampshire: Smith ‘cc Boston, C. & M. B. Co., 36 N.H. 458 (1858); New

York: Hughes v. Smith, 5 Johns. (N.Y.) 173 (1809).

In Assumpsit, on a promise by the defend­ant to pay for all such necessaries as his friend should be provided with by the plain­tiff, the plaintiff alleged that he provided necessaries amounting to such a sum. It was moved, in Arrest of Judgment, that the Declaration was not good, because he had not shown what necessaries in particular he had provided. But Coke, C. 3., said, “This is good, as is here Pleaded, for avoiding such multiplicities of reckonings” ; and Dod­dridge, J., “This General Allegation, that he had provided him with all necessaries, is good, without showing in particular what they were.” And the Court gave Judgment unanimously for the plaintiff.22 So, in As­sumpsit for labor and medicines, for curing the defendant of a distemper, the defendant Pleaded Infancy. The plaintiff Replied that the Action was brought for necessaries gen­erally. On Demurrer to the Replication, it was objected that the plaintiff had not as­signed in certain, how, or in what manner, the medicines were necessary; but it was ad­judged that the Replication, in this General Form, was good, and the plaintiff had Judg­ment.23 So, in Debt on a Bond, conditioned that the defendant shall pay, from time to time, the moiety of all such money as he shall receive, and give account of it, he Plead­ed Generally that he had paid the moiety of all such money, etc. lit per curiam: “This Plea of Payment is good, without showing the particular sums, and that in order to avoid stuffing the Rolls with Multiplicity of

Matter.” Also they agreed that, if the con­dition had been to pay the moiety of such money as he should receive, without saying “from time to time,” the payment should have been Pleaded Specially.2
22. Cryps v. Baynton, 3 Bulst. 31, 81 Eng.Re~), 26 (1614).
23. Huggins v. Wiseman, Carth. 110, 90 Eng.Bep. 668.

24. Church v. Brownswlck, 1 SkI. 334, 82 Eng.ROp.

1140 (1667).

Sec. 59




Z8. A General Mode of Pleading is often sufficient when the Allegations on the other side must reduce the matter to Certainty. And when the Nature of the Defense to be inter­posed is such that the Opposing Party must necessarily state fully all Facts essential to the production of a complete Issue in the par­ticular action, a Party may allege the grounds of his Action or Defense, or seine of them, in General Terms.
THIS Rule comes into most frequent illus­tration in Pleading Performance in Actions of Debt on Bond. Bonds may be conditioned either for the Performance of certain mat­ters set forth in the Condition, or of the Cov­enants or other matters contained in an in­denture or other instrument collateral to the Bond, and not set forth in the Condition. In either case, if the defendant has to Plead Performance of such matters, the Law often allows him to do so, in General Terms, with­out setting forth the manner of Performance. For by the usual course of Pleading, the plaintiff declares upon the Bond as single, without noticing the Condition, and there­fore without alleging any Breach of the Con­dition. It follows, therefore, of course, that if the defendant Pleads Performance, the plaintiff will have to show a Breach in his Replication; and as this will, in all events, lead to a sufficient Certainty of Issue, it be­comes unnecessary for the defendant to be Specific on his Part in his Plea, or to do more than allege Performance in General Terms, according to the words of the Condition, leaving the plaintiff in his Replication to Specify the Breach that is supposed to have been committed.
~9. No greater Particularity is required than the nature of the thing Pleaded will con­veniently admit. And when the Circumstances Constituting a Cause of Action are so numerous and so minute that the Party pleading is not

and cannot be acquainted with them, less Cer­tainty is required, and Pleading in General terms is sufficient.

THE effect of this Rule is that the Cer­tainty required in Pleading Facts does not require a minute and detailed Statement of Circumstances which, though material to a Party’s case, he cannot be presumed to know.25 Thus, though generally, in an Ac­tion for injury to goods, the quantity of the goods must be stated, yet if they cannot, un­der the circumstances of the case, be con­veniently ascertained by number, weight, or measure, such Certainty will not be required. Accordingly, in Trespass for breaking the plaintiff’s close, with beasts, and eating his peas, a Declaration not showing the quantity of peas has been held sufficient, “because no­body can measure the peas that beasts can eat.” So, In an Action on the Case for set­ting a house on fire, per quod the plaintiff, among divers other goods, ornatus pro equis aSs-it, after Verdict for the plaintiff, it was objected that this was Uncertain, but the ob­jection was disallowed by the Court. And in this case Windham, 3., said that, if he had mentioned only diversa bona, yet it had been well enough, as a man cannot be supposed to know the Certainty of his goods when his house is burnt; and added that, to avoid pro­lixity, the Law will sometimes allow such a Declaration,27
In Actions on Contracts, if the case is one where it is held necessary to Declare Spe­cially on the Contract, great Strictness and
25, Wirnbish V. Tailbois, 1 Plow. 54, 75 Eng.Ilep. SO;

Buckley v. Thomas, I Plow, 118, 75 Eng.Rcp. 182;

Hartley v, Herring, S P.R. 130, 101 Eng.Rep. 1308

(1799); Elliott v. Hardy, 3 Bing. 61, 130 Eng.Rep.

436 (1825); Partridge v. Strange, 1 Plow. 85, 75 Eng.

Rep. 130; Bacon, Abr. ‘Picas,” etc. B, 5 (London,

The above Rule is one of necessity, apvlicable to all Pleadings. See Bliss, The Law ot Pleading Under the Codes of Civil Procedure, ~ 309 (2d ed. Boston, 1887).
26. Baeon, Mr. “Pleas,” etc. B, S (London, 1728).
27, Bacon, Mr. “Pleas,” etc. 409 (London, 1708).



Ch. 6

Particularity are enforced, and the simplest case involves imminent danger of Variance; but if the case admits of the use of General Assumpsit or the Common Counts, which are generally applicable wherever money is due for value received, no particulars or Facts are required, and the most complicated cases

may be tried on a bare Claim of Indebted­ness.~

60. Less Particularity is required when the Facts lie more in the knowledge of the Adverse
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