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Party than of the Party Pleading.

THIS Rule is exemplified in the case of al­leging Title in an Adversary, where a more General Statement is allowed than when it is set up in the Party himselt2°


So, in an Actionof Covenant, the plaintiff Declared that the defendant, by indenture, demised to him certain premises, with a Cov­enant that he (the defendant) had full pow­er and lawful authority to demise the same, according to the form and effect of the said indenture; and then the plaintiff assigned a Breach, that the Defendant had not full pow­er and lawful authority to demise the said premises, according to the form and effect of the said indenture. After Verdict for the plaintiff, it was Assigned for Error that he had not in his Declaration shown “what per­son had right, title, estate, or interest in the
2S. Pomeroy, Code Remedies, Section Third, The Gen­eral Principles of Pleading, 533—535 (4th ed. by Boglc, Boston, 1904).

See, also, Pleading, Sufficiency of the Common Counts, 4 Cal.L.Rev. 352 (1916).


20. Mereeron v. Dowson, 5 Barn. & C. 482, 108 Eng.

Rep. 180 (1826); Andrews v. whitehead, 13 East.

112, 104 Eng.Rep. 310 (1810); Rider v. Smith, 3 TB.

766, 100 Eng.Rcp. 847 (1790); Denham v. Stephen-

son, 1 Salk 355, 91 Eng.Rep. 310; Bradshaw’s Case,

.~ Co. Gob, 77 Eng,Rep. 823 (1612); Gale v. Reed, S

East. 80, 103 Eng.Rep. 274 (1800); People v. Dun~

lap, 13 Johns. (N,Y.) 437 (1916).



This nile is also one of general application. See Bliss, The Law of Pleading Under the Codes of civil Pro­.cedure, § 310 (2d ed. St. Louis, 1887).

lands demised, by which it might appear to the Court that the defendant had not full power and lawful authority to demise.” But, “upon conference and debate amongst the Justices, it was resolved that the Assignment of the Breach of Covenant was good; for he had followed the words of the Covenant neg­atively, and it lies more properly in the knowledge of the lessor what estate he him­self has in the land which he demises than the lessee, who is a stranger to it.” 30 So, where the defendant had covenanted that he would not carry on the business of a rope maker, or make cordage for any person, ex­cept under Contracts for Government, and the plaintiff, in an Action of Covenant, As­signed for Breach that, after the making of the indenture, the defendant carried on the business of a rope maker, and made cordage for divers and very many persons, other than by virtue of any Contract for Government, etc., the defendant Demurred Specially, on the ground that the plaintiff “had not dis­closed any and what particular person or persons for whom the defendant made cord­age, nor any and what particular quanti­ties or kinds of cordage the defendant did so make for them, nor in what manner nor by what acts he carried on the said business of a rope maker, as is alleged in the said Breach of Covenant.” But the Court held “that, as the Facts alleged in these Breaches lie more properly in the knowledge of the defendant, who must be presumed conusant of his own dealings, than of the plaintiff’s, there was no occasion to state them with more particularity,” and gave Judgment ac­cordingly.3


INDUCEMENT OR AGGRAVATION
61. Less Particularity is necessary in the

Statement of Matter of Inducement or Aggrava­tion than In the Main Allegations. As matters
30. Bradsbaw’s Cass, 9 Co. Gob, 77 Eng,Rep. 823. (1612).

31. Gale v. Reed, S East. 80, 103 Eng.Rep. 274 (1806).

Sec. 61


INDUCEMENT OR AGGRAVATION

137


alleged merely by way of explanation or intro­duction to the Claim or Defense, or set forth only to increase the Damages asked for, are not of the Gist of the Action, and therefore re­quire no Distinct Answer, they may be alleged in General Terms.
inducement and Gravamen

WHENEVER a bare statement of the Facts constituting the Cause of Action does not show the Right of Action with sufficient Certainty, the Facts necessary to explain them must be shown. This preliminary statement is called the “Inducement”. It does not enter into the statement of the Cause of Action proper, but is merely ex­planatory of such statement, and it does not require the same Certainty.32


The term “Inducement” is sometimes ap­plied to those Allegations showing the ex­istence of a Right on the part of the plaintiff and a Duty on the part of defendant. The Allegations showing the wrongful acts of the defendant in violation of the Right and Duty are known as the Gist or Gravamen of the Action.
As “Matter of Inducement,” as the term is generally used, is that which is merely in­troductory to or explanatory of the essen­tial ground of the Complaint or Defense, and “Matter of Aggravation” such as is alleged only to show, in Actions for forcible injuries, for instance, circumstances of enormity un­der which the wrong complained of was com­mitted, neither constitutes a Material Fact essential to Recovery or Defense, and either, therefore, is sufficiently met by an Answer to that which forms the Gist of the Action;
32. “Inducement,” In Pleading, is the Statement of Matter which is Introductory to the Principal Sub­ject of the Declaration or Plea and which is neces­sary to elucidate or explain it. Varnes v. Seaboard Air Line Railway Co., SO Flu, 624, 86 So. 433 (1920).
The “Inducement” of a Pleading is but an Explana­tory Introduction to the Main Allegation In which the Cause of Action Is alleged. McDonald v. Hall, 203 Mich. 431, 170 N.W. 68 (1918).

and, as they require no distinct Answer, a General Mode of Stating them is sufficient.33 This Rule is exemplified in the case of the Derivation of Title, where, though it is a General Rule that thc Commencement of a Particular Estate must be shown, yet an exception is allowed if the title be alleged by Way of Inducement only. So, in As­sumpsit, the plaintiff declared that in con­sideration that, at the defendant’s request, he had given and granted to him, by deed, the next avoidance of a certain Church, the defendant promised to pay £100, but the Declaration did not set forth any Time or Place at which such grant was made. Upon this being objected in Arrest of Judgment after Verdict the Court resolved that “it was but an Inducement to the Action, and there­fore needed not to be so precisely alleged,” and gave Judgment for the plaintiff.34 So, in Trespass, the plaintiff declared that the defendant broke and entered his dwelling house, and “wrenched and forced open, or caused to be wrenched and forced open, the clpset doors, drawers, chests, cupboards, and cabinets of the said plaintiff.” Upon Special Demurrer it was objected that the number of closet doors, drawers, chests, cupboards, and cabinets was not specified. But ft was answered “that the breaking and entering the plaintiff’s house was the principal ground and foundation of the present action, and all the rest are not foundations of the action, but matters only thrown in to Aggravate the Damages, and, on that ground, need not be particularly specified.” And of that opinion


33. Witheren v. Clcrkson, 12 Mod. 597, 88 Eng.Rep.

1543; Bishop v. Salisbury’s Osse, 20 Coke 5Db, 77 Eng.Rcp. 1014; Riggs v. Builingham, Cro.Eliz. 715, 78 Eng.}tep. 1005 (1601); Chnmherlatn v. Greenfield, S Wils. 292, 95 EngRep. 1061 (1772); Alsope v. Syt­well, Tel. 18, 80 Eng.Bep. 13; Woolaston V. Webb, Rob. ISb, 80 Eng.Rep. 165; Co,Litt, 303a (Philadel­phia, 1812); Comyn, Digest “Pleader,” C. 43 (Dub­lin, 1793); Doct.Plae. 281, 283 (Dublin, 179d)~



34. Riggs v. Buningham, Cro.Eliz. 715, 78 Eng.Re~

949 (1595).

139

DECLARATION—MANNER OF PLEADiNG



Ch. 6

was the Whole Court, and Judgment was giv­en for the plaintiff.35


ACTS REGULATED BY STATUTE
CL With respect to Acts Valid at Common Law, hut regulated as to the Mode of Perform­ance, by Statute, it is sufficient to use such Certainty of Allegation as was sufficient before the Statute. Thus, a Party Pleading a Contract, Valid by Parol at Common Law, but which a subsequent Statute requires to be in Writing, need not allege it to be in Writing.
, THE only explanation necessary to be made of this Rule is that, as matters are to be Pleaded according to their Legal Effect, a Statute does not, in regulating the Mode of Performance of an Act, necessarily pre­scribe a corresponding method of Pleading it, unless the thing to be pleaded is one cre­ated by the Statute itself. If, therefore, an act Valid at Common Law is subsequently required by a Statute to be in writing, it may still be Pleaded as at Common Law without alleging writing.38 Thus, by the Common Law, a lease for any number of years might be made by parol only; but, by the Statute of Frauds, all leases and terms for years made by parol, and not put into writing and signed by the lessors, or their agents authorized by writing, shall have only the effect of leases at will, except leases not exceeding the term of three years from the making. Yet, in a Declaration of Debt for rent on a demise, it was held suffi­cient, as it was at Common Law, to state a demise for any number of years, without
35. Chamberlain v. Greenfield, 3 Wils. 292, 95 Eng. Rep. 1061 (1772).
31. English: Anonymous, 2 Salk. 519, 91 Eng.Rep.

442; Birch v. Bellamy, 12 Mod. 540, 88 Eng.Rep.

1504; Chalie v. Belshaw, 6 Bing. 529, 130 Rng.Rep.

1385 (1830); Illinois Speyer v. Desjardins,

144 Ill. 641, 32 N.E. 283, 36 Am.St.Rep. 473 (1892);

3Iaryland: Ecker V. Bohn, 45 Md. 278 (1876); Mas­sachusetts: Mullaly v. Ilolden, 123 Mass. 583 (1878);

Michigan: Harris Photographic Supply Co. v. Fish­er, SI 1~f1cb. 136, 45 NW. 681 (1800).
Bliss, Code Pleading, c. XV, Of the Statement, Con­tinued § 312 (3d ed. St. Paul, 1894).

showing it to have been in writing3~ So, in the ease of a Promise to Answer for the Debt, Default, or Miscarriage of another per­son, which was good by paro], at Common Law, but by the Statute of Frauds, is not valid unless the agreement, or some memo­randum or note thereof, be in writing, and signed by the party, etc, the Declaration on such promise need not allege a written Con­tract.38


On this subject the following difference is to be remarked, namely, that “where a thing is originally made by Act of Parliament, and required to be in writing, it must be Pleaded with all the circumstances required by the act; as in the case of a will of lands, it must be alleged to have been made in writing; but where an act makes writing necessary to a matter where it was not so at the Common Law, as where a lease for a longer term than three years is required to be in writing by the Statute of Frauds, it is not necessary to Plead the thing to be in writing, though it must be proved to be so, in Evidence.” ~
As to the Rule under consideration, how­ever, a distinction has been taken between a Declaration and a Plea; and it is said that though, in the former, the plaintiff need not show the thing to be in writing, in the latter the defendant must, Thus, in an Action of Indebtitatus Assumpsit, for necessaries pro­vided for the defendant’s wife, the defend­ant Pleaded that before the Action was brought the plaintiff and defendant and one

J. B., the defendant’s son, entered into a cer­tain agreement, by which the plaintiff, in discharge of the Debt mentioned in the Dec­laration, was to accept the said 3. B. as her Debtor for £9, to be paid when he should receive his pay as a lieutenant, and that the


3~. Duppa v. Mayo, 1 Saunders 276, note 1, 85 Eng. Rep. 337 (1669).
3& 1 Saunders 211, note 2, 85 Eng.Rep. 220; Anony­pious, 2 Salk. 519, 91 Eng.Bvp. 442 (1701).
30. Duppa v. Mayo, 1 Saunders 276d, 276€, note 2, 85 Eng.Rep. 342 (1669).

Sec. 63

MATFERS JUDICIALLY NOTICED

139

plaintiff accepted the said 3. B. for her Debt­or, etc. Upon Demurrer, Judgment was giv­en for the plaintiff, for two reasons: First, because it did not appear that there was any consideration for the agreement; secoiully, that, admitting the agreement to be valid, yet, by the Statute of Frauds, it ought to be In writing, or else the plaintiff could have no remedy thereon; “and though, upon such an agreement, the plaintiff need not set forth the agreement to be in writing, yet, when the defendant Pleads such an Agreement in Bar, he must Plead it so as it may appear to the Court that an Action wilt tie upon it, for he shall not take away the plaintiff’s pres­ent Action, and not give her another, upon the agreement Pleaded.”


WhAT MAY BE OMITTED—MATTERS

JUDICIALLY NOTICED
63. It is not necessary to state matters of which the Court takes Judicial Notice. Matters Judicially Noticed may be either of Law or Facts of a Public or General Nature.

CERTAIN matters may be omitted. Thus it is not necessary to state in the Pleading Matters of which the Court will take Judi­cial Notice.4’ It is therefore unnecessary to state Matter of Law, for this the Judges are bound to know, and can apply for themselves to the Facts aileged. Thus, where it was Stated in a Pleading that an officer of a cor­poration was removed for misconduct, by the corporate body at large, it was held un­necessary to Aver that the power of remov­al was vested in such corporate body, because

that was a power by Law incident to them, uniess given by some charter, by-law, or oth­er authority, to a select part only.42 The Rule is not limited to the principles of the Common Law. Public Statutes fall within
4°. Case v. Barber, T.Raym. 450, 83 Eng.Bep. 235 (1803).
IL. To this effect, see Comyn’s Digest, Pleader,” C, 78 (1822).
42. KIng v. Mayor & Burgesses of Lyme RegIs, 1 Doug. 148, 99 Eng.Rep, 07 (1779).

the same reason and the same Rule. Public Domestic Statutes and the Facts which they recite or state must be Noticed by the Courts of the Particular State, as well as the Public Acts of Congress, without their being Stated in Pleadings; ~ and it is only necessary to allege Facts which will appear to the Court

to be affected by the Statute,44 though in case of an offense created by Statute, where a penalty is inflicted, the mere Statement of the Facts constituting the offense will be in~ sufficient without an express reference to the Statute, showing the intention to being the case within it.45 Private Acts, however, are not Judicially Noticed, and therefore such parts of them as may be material to the Ac­tion or Defense, must be Stated in Plead­ing,4° and Foreign Statutes, as those of other States, must also be Pleaded.47
It may be observed, however, that, though it is in general unnecessary to allege Matter

of Law, yet there is sometimes occasion to make mention of it, for the convenience or intelligibility of the Statement of Fact. Thus, in an Action of Assumpsit on a Bill of Exchange, the Form of the Declaration is to state that the Bill was drawn or accepted by the defendant, etc., according to the nature of the case, and that the defendant, as draw­er or acceptor, etc., became liable to pay;


43. 1 Blaekstone, Commentaries on the Law of Eng­land, 85 (2nd Amed. Boston, 1799). Boyce v. \Vhita­ker, 1 Doug. 97, note 12, 99 EngRep. 67 (1779); dare v. State, 5 Ia, 509 (1858).
44. Spieres v. Parker, I T.R. 145, 99 Eng.Bep. 1021

(1786); Bogardus V. Trinity Church, 4 Paige (NS.)

178 (1833). See, also, Miller v. Roessier, 4 ED.

Smith (N.Y.) 234 (1858).


45. Wells V. iggulden, 3 Barn. & C. 186, 107 Eng.Itep.

703 (1824).


46. Platt V. Bin, 1 Ld.Raym. 381, 91 Eng.Rep. 1152 (1698); Boyce v. Wbitaker, i Doug. 97, note i2, 99 Eng.Rep. 67 (1779).
47. The Federal Courts, however, have taken notice of a]l the laws of all the Stntes of the Union, as well as of the territories. See Owings V. Bull, 9 Pet (U.S.) 807. 9 LEd. 246 (1835).

140


DECLARATION—MANNER OF PLEADING

Ch. 6

and being so liable, in consideration thereof promised to pay. So, as stated above, it is sometimes necessary to refer to a Public Statute in General Terms, to show that the case is intended to be brought within the Statute; as, for example, to allege that the defendant committed a certain act against the Form of the Statute in such case made and provided; but the reference is made in this general way only, and there is no need

to set the Statute forth.
This Rule, by which Matter of Law is omitted in the Pleadings, by no means pre­vents the attainment of the requisite Cer­tainty of Issue; for, even though the dispute between the Parties should turn upon Mat­ter of Law, yet they may evidently obtain a sufficiently Specific Issue of that descrip­tion without any Allegation of Law; for ex facto jus oritur, that is, every Question of Law necessarily arises out of some given state of Facts; and therefore nothing more is necessary than for each Party to state, alternately, his case in point of Fact; and upon Demurrer to the sufficiency of some one of these Pleadings, the Issue of Law, as we have heretofore shown, must at length arise.
Besides Points of Law, there are man)’ other matters of a public kind, of which the Court takes Official Notice, and with respect to which it is, for the same reason, unnec­essary to make Allegation in Pleading, such as matters antecedently alleged in the same Record,IS the Time and Place of holding Con­gress, or the State Legislature, the Time of its Sessions, and its usual course of proceed­ing, the course of the almanac, the division of the state into Counties, the meaning of English words, and terms of art; legal weights and measures, and the ordinary moasurement of time, matters of public his-

tory, affecting the whole people, and many other matters.4°


MATTERS IN ANTICIPATION
64. It is not necessary to State Matter which would come more properly from the other side. As it is sufficient for each Party to make out

his own Case or Defense, he adequately sup~


ports his Charge or Answer, for the purpose of Pleading, if such Pleading establish a prima facie case in his favor, and is not bound to anticipate matter which his Adversary may be at liberty to Plead against him. EXCEPTION

—Pleadings in Estoppel and Dilatory Pleas must meet and remove, by anticipation, every possible Answer.


TIlE ordinary Form of this Rule, namely, that it is not necessary to State Matters which would come more properly from the other side, does not fully express its mean­ing. The meaning is that it is not necessary to anticipate the answer of the adversary, or, as it is generally expressed, when reference is made to the Declaration only, it is not nec­essary to anticipate Defenses.M This, ac­
40. On the classification of matters judicially noticed, see I Greenleaf, On Evidence, e. II, Judicial Notice ~l 4—C (Boston, 1892); Wlarton, On Evidence, c, V Judicial Notice, General Rules II 276—286 (PhiladeI~ phia, 1877): Stephen, On Evidence, c VII, On Proof, Arts. 58, 59 (Hartford, 1902).

And, as to the application of the Rule in Code Plead­ing, see Bliss, Code Pleading, c. XIII, Rules Gov­eraing the Statement, §~ 187-199 (3d ed. St. Paul, 18043, and cases cited.


50. English: Stowcl v. Lord Zouch, I Plow. 376, 75

Eng.1tep, 571; Walsingliam’s Case, 2 Plow. 564, 75

Eng.flcp. 830; St. John v. St. John, Bob. 78, 80 Eng.

Rep. 227; Botham v. East India Co., 1 P.R. 638, 99

Eag.Rep. 1293 (1787); Weeding v. Aldrich, 9 Adol.

& E, 801, 112 Eng.Rep. 1440 (1839); Connecticut:

Goshen & Sharon Turnpike Co. v. Sears, 7 Conn,

92 (1828); Illinois: Rockford Ins. Co. v. Nelson, 65

III. 415 (1872); Michigan: Smalley v. BrIstol, 1 Mich,

153 (1848); New York: Hughes v. Smith, 5 Johns.

(N.Y.) 168 (1809); Wolfe v. Howes, 20 N.Y. 197, 75

Am.Dec. 388 (lSStI); Sands v. St. John, 36 Barb. (N.

Y.) 628 (1862).
Stephen, A Treatise on the Principles of Pleading in Civil Actions, Section IV, 314 (3rd Am. ed. by Tyler, Washington, D. C. 1893); Comyn’s Digest, “Plead­er,” C, 81 (Dublin, 1798).

IS. Rex V. Knollys, I Ld.Itaym. 13, 01 Eng.Rcp. 005

(1894).


Sec. 65

MATTERS IMPLIED



141

cording to Hale, C. 3., is “like leaping be­fore one comes to the stile.” ~ It is sufficient that Each Pleading should, in itself, contain a good prima fade case, without reference to possible objections not yet urged. Thus, in Pleading a devise of land by force of the Statute of Wills, it is sufficient to allege that such a one was seised of the land in fee, and devised it by his last will, in writ­ing, without Alleging that such devisor was of full age. For, though the Statute pro­vides that wills made by fernes covert, or persons within age, etc., shall not be taken to be effectual, yet, if the devisor were within age, it is for the other Party to show this in his Answer, and it need not be Denied by anticipationA~ So, in a Declara­tion of Debt upon a Bond, it is unnecessary to allege that the defendant was of full age when he executed it.~ So, where an Action of Debt was brought upon a Statute against the bailiff of a town for not returning the plaintiff, a burgess of that town, for the last Parliament, the words of the Statute being that the Sheriff shall send his precept to the Mayor, and, if there be no Mayor, then to the bailiff, the plaintiff declared that the Sheriff had made his precept unto the bailiff, without Averring that there was no Mayor. And, after Verdict for the plaintiff, this was moved in Arrest of Judgment. But the Court was of opinion, clearly, that the Dec­laration was good, “for we shall not intend that there was a Mayor except it be showed; and, if there were one, it should come more properly on the other side.” M So, where there was a Covenant in a charter party ‘that no claim should be admitted, or al­~i. Sir Ralph Bevy’s Case, 1 Vent. 217, 86 Eng.Rep.

146 (1672); Walker v, President, etc. of Michigan state Bank, 5 Doug. (Mith.) 359 (1847); 31 Cyc. 109.
-12. stowel v. Lord Zouch, 1 Plow. 376, 75 Eng,Rep. 571 (1569).

as. Walslngham’s Case, 2 Plow. 504, 75 Eng.Rop. 830 (1582); Sir Ralph Bovy’s Case, I Vent. 217, 86 Eng. Rep. 146 (1672).

lowanee made for short tonnage, unless such short tonnage were found and made to ap­pear on the ship’s arrival, on a survey to be taken by four shipwrights, to be indiffer­ently chosen by both Parties,” and in an Action of Covenant, brought to recover for short tonnage, the plaintiff had a Verdict, the defendant Moved in Arrest of Judgment, that it had not been Averred in the Declara­tion that a survey was taken, and short ton­nage made to appear. But the Court held that, if such survey had not been taken, this was Matter of Defense, which ought to have been shown by the defendants, and refused to Arrest the Judgment.~
But where the Matter is Such that its Af­firmation or Denial is essential to the appar­ent or prima facie right of the Party Plead­ing, then it ought to be Affirmed or Denied by him in the first instance, though it may be such as would otherwise properly form the subject of objection on the other side.
MATTERS IMPLIED
65. It is not necessary to allege Circum­stances Necessarily Implied. Necessary Cir­cumstances implied by Law from Facts al­leged are Traversable without being Pleaded, and need not therefore be alleged.
A FOURTH subordinate Rule is that it is not necessary to allege Circumstances Nec­essarily Implied from Facts that are al­leged.56 The reason of this Rule seems to be that as the Law will always Imply Certain Facts from the Statement of Others, and the Issue tendered by the Allegation of such Pri­mary Facts alone is therefore sufficient for a Traverse by the Adverse Party, so the Facts thus to be implied need no Express Al­legation to render the statement of the case complete on either side. Thus, in an Action
~5. Hotham v. East India Co., I TB. 638, 99 Eng.

Rep. 1294 (1787).

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