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56. English: Vyrsior’s Case, 8 Co. Sib, 77 Eng.Rcp.

597; Sneers v, Brooks, 2 fl.~l. 120, 126 Eng,Rep.

463 (1792); Marsh V. Bulteel, 5 Earn. & AId. 507,

106 Eng.Rep. 1276; New York: Dubois Ex’r v. Van

Orden, 6 Johns. (N.Y.) 105 (1810).

ti. St. John v. St John, Hob. 78, 80 Eng.Rep. 227.



Cli. 6

of Debt on a Bond, conditioned to stand to and perform the Award of W.R., the defend­ant Pleaded that Wit, made no Award. The plaintiff Replied that after the making of the Bond, and before the time for making the Award, the defendant, by his certain writing, revoked the authority of the said W.R., contrary to the form and effect of the said condition. Upon Demurrer it was held that this Replication was good, without Averring that W.R. had notice of the Revo­cation, because that was implied in the words “revoked the authority,” for there could be no Revocation without notice to the arbitra­tor; so that, if W.R. had no Notice, it would have been competent to the defendant to Tender Issue “that he did not revoke in man­ner and form as alleged.” M So, if a feoff­ment be Pleaded, it is not necessary to al­lege livery of seisin, for it is implied in the word “enfeoffed.” ~ So, if a man Plead that he is heir to A., he need not allege that A. is dead, for it is implied.50

66. It is not necessary to allege what the Law will presume. As legality in the trans­actions or conduct of persons is always pre­sumed, everything is regarded as legally done until the contrary is shown.
TFIUS, it is an Intendment of Law that a person is innocent of fraud, as well as free from every imputation against his character, and one insisting on the contrary must both Plead and Prove it.6° So the performance of an act is presumed where the omission would render one criminally liable, and the burden of alleging and proving the negative is on the party who asserts it.6’ Thus, in
&1. Vynior’s Case, S Co. SIb, 77 Eng.Rep. 597; Marsh v. Bulteel, 5 Barn. & AId. 507, 106 Eng.Rep. 1276.

58. Co.Lltt. 303b (Philadelphia 1812); Doct.Plac. 48,
49; Comyn’s Digest, “Pleader” 1, 9 (Dublin, 1798).
55. 2 Sa,md. 305a, ii. 33, 85 Eng.Bep, 3101.
68. Stephen, Pleading, 318 (Washington, 1893).
U. Williams v. last India Co., 3 East 192, 102 Eng. Rep. 571 (1802).

Debt on a Replevin Bond, the plaintiffs de­clared that at the City of C., and within the Jurisdiction of the Mayor of the City, they distrained the goods of W.H. for rent, and that W,H., at the said City, made his Plaint to the Mayor, etc. and prayed deliverance, etc., whereupon the Mayor took from him and the defendant the Bond on which the Action was brought, conditioned that W.H. should appear before the Mayor or his Deputy at the next Court of Record of the City, and there prosecute his Suit, etc., and thereupon the Mayor Replevied, etc. It was held not to be necessary to allege in this Declaration a custom for the Mayor to grant Replevin and take Bond, and show that the Plaint was made in Court, because all these Circum­stances must be presumed against the de­fendant, who executed the Bond and had the benefit of the Replevin.62 So, in an Action for Slander imputing theft, the plaintiff need not Aver that he is not a thief, because the Law presumes his innocence till the contrary be shown.°3

67. Surplusage is to be avoided. The Per­fection of Pleading is to combine the requisite Certainty and Precision with the greatest pos­sible brevity of statement. “Surplusage,” as

the term is used in the present Rule, includes matter of any description which is unnecessary to the maintenance of the Action or Defense. The Rule requires the omission of such mat­ter in two instances:

(I) When the matter is wholly foreign and irrelevant to the Merits of the Case; and
(II) When, though not wholly foreign, such matter need not be stated.
THE term “Surplusage,” as used in this chapter, is taken in the broad sense of in­cluding all unnecessary matter, whether its
62. Wlbon v. Hobday, 4 T,4. & 5. 325, 105 EngItep.

782 (1815).

63. Chapman v. Pickersgill, 2 wus, 147, 95 Eng.ReP.

734 (1762).

Sec. 67



irrelevancy arises from the Nature of the Matter itself, as where it is wholly foreign and impertinent to the case, and may there­fore be Stricken Out on Motion, as where a plaintiff, suing upon one of the Covenants in a long Deed, sets out in his Declaration, not only the Covenant on which he sues, but all the other Covenants, though relating to matters wholly irrelevant to the Cause; 64 or in the Pleading Matter that, while relevant to the case, the Pleader is under no neces­sity of stating, such as Matter of Evidence, things Judicially Noticed, Matters Implied, etc., which fall within the Various Rules heretofore explained as tending to limit or qualify the Degree of Certainty. In either case it is a fault to be avoided, as not only tending to cause prolixity in the Pleadings, but also frequently affording an advantage to the Opposite Party, by providing him with an objection on the ground of Variance, or by compelling the Party Pleading to adduce more Evidence than would otherwise have been necessary. It is therefore of the ut­most importance to avoid both the state­ment of unnecessary facts and the Allega­tion of Facts which, though they may be rel­evant, are not essential to a Proper State­ment of the Claim or Defense.°3

If the matter stated be wholly foreign and impertinent, so that no Allegation on the sub­ject was necessary, it does not vitiate the Pleading, the maxim being that “utile, per inutile, non vitkztur’ nor does it require proof, but it will be entirely rejected.°6 If,
64. Dundass v. Lord Weymouth, 2 Cowp. 665, 08 Eng.
Rep. 1296 (1777); Price v. Fletcher, 2 Cowp. 727, 98

Eng.Rep. 1330 (1778); PhIllips v. Fielding, 2 13131.

131, 126 Eng.Rep. 469 (1792).
65. Eristow v. Wright, 2 Doug. 667, 90 Erig.Rep. 422

(1781); Yates v. Carlisle, I W.Bl. 270, 96 EngItep.

150 (1761); Thursdy v. Plant, 85 Eng.Rep. 256, 1

Sauna. 233, note 2 (1669).

66. English: Eristow v. Wright, 2 Doug. 667, 99 Eng.

Rep, 422 (1781) Dukes v. Costllos, 1 fling.N.C. 588,

131 Eng.Rep. 1243 (1835); Edwards v. Hammond, 3

Lev. 132, 83 Eng.Rep. 614 (1682); Alabama: Perry

V. Marsh, 25 Ala. 659 (1854); IllInois: Eurnap V.

however, a Party take it upon himself to state the Particular Facts of a Claim where a General Allegation only is sufficient, he is often bound to prove all items as stated, tin­der penalty of a Variance; the Rule being well established that matter, though unnec­essarily alleged, must be proved if it is de­scriptive of that which is essential.6’ Again, if Material Matter is alleged with an unnec­essary detail of circumstances, the essential and non-essential parts of the statement may be so interwoven as to expose the Allegation to a Traverse, and the Pleader to an increas­ed Burden of Proof with its consequent ad­ditional danger of failure.68 So it is a Ma­terial Part of the Rule respecting Superflu­ous Allegations that if the Party introduc­ing them show, on the Face of his own Plead­ing, that he has no Cause of Action, the Pleading will necessarily be defective.”5

When the surplus matter is wholly irrele­vant, it may be Stricken Out on Motion; but it is no Ground for Demurrer, since, as
WiflE, 14 UI. 301 (1853); Enoebel r. Kirchcr, 33

11]. 308 (1864); Shlpherd v. Field, 70 UI. 438 (1873);

Indiana: Bequette v. Lasselle, 5 Blackf. (md.) 443

(1846); Massachusetts: Buddiugton v. Shearer, 20

Pick. (Mass.) 477 (1838); MichIgan: Murphy v. Mc-

Craw, 74 Inch. 318, 41 NW. 917 (1889); New York:

Thomas v. Roosa, 7 Johns. (N.Y.) 462 (1811); Rus­sell v. Rogers, 15 Wend. (N.Y.) 351 (3836). See, also,

Broom, Legal Maxims, 581 (London, 1884).

OL Thus, for example, where, in an action on a non-negotiable note, expressed to be for value received, the plaintiff, If he sets out the facts showing of what the value consisted, instead of simply pleading the note “for value received,” will he held to strict proof of what he thus alleges. Jerome v. Whitney, 7 Johns. (N.Y.) 321 (1811).
And, as to this danger and the necessity to prove mat’

ter unnecessarily alleged, Sec Turner v. Eylca, 3

Bbs. & P. 45(3, 127 Eng.flep. 247 (1803); Sir Francis

Lekes Case, Dyer 365, 73 Eng.Rep. 810 (1578);

Gridley v. City of Bloomington, 68 III. 47 (1873).
OS. Commissioners of Treasury v. Brevard, 1 Brev. (S.C.) 11 (1794).
69. Dome v. Cashford, 1 Salk. 363, 91 Eng.Rep. 315. And see, also, Wall v. Chesapeake & 0. 13. Co-, 200 111. 66, 65 N.E. 632 (1902).

~O. Wyat v. Aland, I Salk. 324, 91 Eng.Rc’p. 287 (1701).



Ch. 6

we have just seen, it does not Vitiate the Pleading. Where, however, inconsistency or discrepancy on the Face of the Record is created by Surplus Allegations, this fault is to be taken advantage of by Special Demur­rer)’

68. Every Descriptive Averment, though made with Unnecessary Particularity, must be proved as laid, or it will be a fatal Variance.
THE harsh Rule by which the Courts pun­ish a Party who Pleads Immaterial Facts by compelling him to prove them literally as alleged, although they need never have been set out to state the Cause of Action is shock­ingly illustrated in negligence cases. New Trials have frequently been granted for Want of Proof of wholly Unnecessary alle­gations. The Pleader has to steer his course between Scylla and Charybdis, and is driv­en to state his case in a confusing variety of Counts, which multiply and complicate the Issues. He has to learn just how General he may make his Allegations, avoiding all un­necessary detail, on the one hand, and the danger of stating mere Conclusions of Law or Fact, on the other. By Unnecessary Par­ticularity in a descriptive statement, he binds himself to prove this Surplusage in ad­dition to the essential Facts of the case. Yet it is recognized that Averments of Mere Sur­plusage, which are not “matter of descrip­tion,” are immaterial and need not be prov­ed.72 Thus, where a plaintiff, in Action for
71. Gilbert, chancery Practice, e. XXI, 131—132 (Lon~ don, 1792).
72. Barnes v. Northern Trust Co., 169 111. 112, 4S N.E.

31 (1897); Carterville Coal Co. v. Abbott, 181 Ui.

495, 55 N.E. 131 (1899).
The Pleader should ascertain what are the vital ele­ments of his Action or Defense, and then examine the decisions of his own state to lean just how gen­eral he may make his Allegations; for he is above all to avoid unnecessary detail. As we have al­ready seen, by unnecessarily particularizing In a de­scriptive Allegation he binds himself to prove these unnecessary particulars In addition to the essential Facts of the descmiption. Thus, In an Action on the

Personal Injuries against the railroad, al­leged that at the time of the injury she was standing at the intersection of a street and the main tracks of the defendant’s railroad, the Court expressed the opinion that it would be a material Variance if the Proof showed that she was then standing twenty-five or thirty feet from this point.’3 But the precise place where the personal injury occurs is not ordinarily an element in the Cause of Ac­tion, and it is sufficient to state the County in which the injury took place.74 It is not necessary for a passenger, who is suing a railroad for injuries, to state the termini be­tween which he was being carried; but, if he does state them, the Allegations will require strict Proof.75 These decisions are placed on the ground that the great object of a Decla­ration is to notify the defendant of the na­ture and character of the plaintiff’s demand, so that he may be able to prepare for a De­fense.

If, however, the Pleader make his Allega­tions of particulars under a videlicet, that the injury occurred on a certain day, v4z., on March 1, 1916, then the Count will not limit the plaintiff to the precise day alleged, but admits Proof that the injury occurred at any time within the period of the Statute of Limitations.76 There is equal notice in either event, whether the “Viz” is used or not.
Cage, where the defendant might have been liable as owner of certain premises, and the Declaration Averred that be was the “owner and occupier” of certain premises, Proof tending to show liability as owner alone was held inadmissible.
~3. Lake Shore & 11. S. fly. Co. v. Ward, 135 Ill. 511, 26 N.E. 520 (1891).
74. CarlIn v. City of Chicago, 262 Ill. 564, 104 N.E.

905, Ann.Cas.1915B, 213 (1915).

7~. Wabash Western By. Co. v. Friedman, 146 Ill. 583,

30 N.E. 353, 34 N.E. 1111 (1893).

See, also, Ohio & Iv!. fly. Co. v. People, 149 Ill. 663, 36 N.E. 989 (1894): Wabash B. Co. v, alllings, 212 ill. 37, 72 N.E. 2 (1904).
It Collins v. Sanitary District of Chicago, 270 Ill. 108, 110 N.E. 318 (1915).

Sec. 69



In Span gler v. Pugh,” where a note was received in Evidence, and the amount of the note was a half cent larger than the amount alleged in the Declaration, this was held a fatal error in Matter of Substance. The Illi­nois Supreme Court, although regretting that such a trifling slip should delay a Party in the Administration of Justice, sent the plaintiff back for a New Trial, in order that the Science of Common-Law Pleading might not be impaired. In another case, the differ­ence between the instrument described and that offered in Evidence of a dollar mark after the amount of the subscription was held a fatal Variance, although the body of the contract showed what was intended.78

If the plaintiff had declared on the Indebi­tatus Counts, he might have proved the exe­cution of the instrument and established the indebtedness without any details at all. In an Action of Assumpsit upon a note alleged in the Declaration to have been executed by “Wiffiam” Becker, the plaintiff offered at the Trial a note signed by “Wilhelm” Becker. This was admitted in Evidence over Objec­tion and the Judgment for plaintiff was Re­versed for Variance.79
69. A Pleading is bad for Repugnancy when it contains Contradictory or Inconsistent Alle­gations, which destroy or neutralize each other. There is an Exception to this Rule when the Allegation creating the fault is Superfluous.
REPUGNANCY is a fault in all Pleading, and the reason of the rule is clearly apparent,
On the office and effect oof the Videlleet or Seiiieet to separate non-essential details, see Obicago Terminal Transfer B. Co. v. Young, 118 Ill,App. 226 (1905); Commonwealth v. Hart, 70 Mass. (10 Gray) 465 (1858); Gould, A Treatise on the Principles of Plead­ing, Pt. III, Div. II, c. I, The Major Requisites of Pleading, 221 (6th ed. by Gould, Albany, 1909).
~‘7. Spangler v. Pugh, 21 Ill. 55, 74 Am,Dcc. 77 (1859).
78. Jacksonville, N. W. & S. E. By. Co. v. Brown, 67 Ill. 201 (1873).
¶0. Becker v. German Mut. Fire Ins. Co. of North Chicago, 68 III. 412 (1873).

since, where the Declaration or Other Plead­ing alleges matter which either contradicts or is inconsistent with matter previously al­leged in the same Pleading, there can be, on the Party’s own showing, neither a legal Cause of Action nor a Defense.5° Thus, where, in an Action of Trespass, the plain­tiff declared for taking and carrying away certain timber, lying in a certain place, for the completion of a house then lately built, this declaration was considered as bad for Repugnancy, for the timber could not be for the building of a house already built.8’ So, where the defendant Pleaded a grant of a rent, out of a term of years, and proceeded to allege that, by virtue thereof, he was seiz­ed in his demesne, as of freehold, for the term of his life, the Plea was held bad for Repugnancy.82 Where the Repugnancy is in a material point, it Vitiates the Pleading, which is ill on Special Demurrer.83 When, however, the Allegation creating the Repug­nancy is merely Superfluous and redundant, so that it may be rejected from the Pleading without materially altering the general sense and effect, it is to be disregarded or Stricken

50. English: Nevil v. Sopor, 1 Salk. 213, 91 Eng.Itep.
190 (3697); Butt’s Case, 7 Co. 25a, 77 Eng.Bep, 511;

Hart v. Longfield, 7 Mod. 148, 87 Eng.Bep. 1150

(1102); Alabama: Merrill v, Sheffield Cc., 160 Ala.

242, 53 So. 219 (1910): Florida: Florida Cent. & P.

B. Co. v. Ashmoro, 43 Fla. 272, 32 So. 832 (1902);

Illinois: Raymond v. People, U 1l1.App. 344 (18011;

Kolslian v. Elgin, Aurora & S. Traction cc., 132 Ill.

App. 416 (1907); Indiana: Barber v. Summers, 5

Biackf. (lad.) 339 (1840); Tennessee: Bynum v.

Ewart, 90 Tcnn. 053, 18 SW. 304 (1891) ; Vermont:

Hcrsey v. Northern Assurance Co., 75 Vt. 4-11, 50 .\.

95 (1903).

81. Nevil v. Soper, 1 Salk. 213, 91 Eng.Rep. 190 (10071.
82. Butt’s Case, 7 Co. 25a, 77 Eng.Bep. 511.
81. English: \Vyat v. Aland, I Salk. 324, 91 iC~e. Rep. 287 (1701); Butts Case, 7 Co. 25a, 77 Eng.Rup. 511; Hart v. Longfield, 7 Mod. 148, 87 Eng.Rep. 1156 (1702); Illinois: Priest v. Dodsworth, 235 UI. 613, 85 N.E. 940, 14 Ami.Cas. 340 (1908); Indiana: BarS ber v. Summers, 5 Blackf, (Lad.) 339 (1840); Massa­chusetts: Sibley v. Brown, 4 Pick. (Mass.) 337 {1~2W. See, also, Comyn’s Digest, ‘Pleader” C. 23 (Dublin,



Out on Motion, and will not Vitiate the Pleading; for the maxim is “Utile, per mu­tile, non vitiatur.”8

70. Pleadings must not be Ambiguous or Doubtful in Meaning; and, when two different meanings present themselves, that construction shall be adopted which is most unfavorable to the Pleader. Ambiguity in Pleading occurs where the matter alleged may have several meanings; but a Pleading is not objectionable on this ground if it be clear enough for its true meaning to be ascertained, according to reasonable intendment or construction, though not worded with absolute precision.
THE Pleader must avoid stating the mat­ter of his Claim or Defense in such a man­ner as to render it so Doubtful or Obscure that, upon its face, it will be uncertain what he means to allege.85 Thus, if, in Trespass quare clausuni fregit, the defendant Pleads that the locus in quo was his freehold, he must allege that it was his freehold at the time of the Trespass; otherwise, the Plea is insufficient.86 So, in Debt on a Bond, condi­tioned to make assurance of land, if the de­fendant Pleads that he executed a release, his Plea is bad if it does not express that the release concerns the same land.87
In determining which of two meanings that present themselves shall be adopted, that construction is given that is most un­favorable to the Party Pleading, since it is presumed that every person states his case
84. Rex v. Stevens, 5 East 244, 102 Eng,Rep. 1063 (1804); Wyatt v. Aland, 1 Salk. 324, 91 Eng.Rep. 287 (1701); Co.Litt, 303b (Philadelphia, 1812).
85, Purcell v. Bradley, tel. 30, 80 Eng.Rep. 26;

Dovaston v. Payne, 2 Hill. 530, 120 Eng.Rep. 686

(1795); Thornton v. Adams, 5 M. & S. 38, 105 Eng.

Rep. 965 (1816). Manser’s Case, 2 Co. 3, 76 Eng.Rep.

392 (1608); Comyn’s Digest, “Pleader,” E. 5 (Dub­lin, 1793).
86. Comyn’s Digest, “Pleader” E. 5 (Dublin, 1793).
87. Manser’s Case, 2 Co. 3, 76 Eng.Rep, 392 (1608); Comyn’s Digest, “Pleader” B. 5 (Dublin, 1793).

as favorably as possible for himself.88 This Rule, however, is always subject to this quai­ification, namely, that when an expression is capable of different meanings, the one which will support the Pleading is to be taken rath­er than the one which will defeat it.8°

71. Pleadings must not be in the Alterna­tive. Where a legal Duty imposes the due per­formance of one thing or another, the Plead­ing must state that one was performed, and specify which one.
HYPOTHETICAL or Alternative Pleading is always bad.91 While it is competent for a
8~. Alabama: wam v, Dudley, 10 Ala. 742 (1849);

California: Green v. Covillaud, 10 Cal. 317, 70 Am. Dec. 725 (1858); Connecticut: Fuller v. Town of Hampton, 5 Conn. 422 (1824); Illinois: Halligan v. Chicago & B. I. H. Co., 15 III. 558 (1854); Henkel V. Heyman, 91 Ill. 96 (1878); Michigan: flush V. Dun’ ham, 4 Mich. 339 (1856); Mississippi: President, etc. of City of Natches v. Minor, 9 Sinecles & l’l. (Miss.) 544,48 Am.Dec. 727 (1848); New York: Per­riss v. North American Fire Ins. Co., 1 Hill (N.Y.) 71 (1841); Slocum v. Clark, 2 Hill (N.Y.) 475 (1842).

The Rule of Strict Construction at Common Law has been superseded by the Rule of Liberal Construc­tion under the Code. Emerson v. Nash 124 Wis. 369, 102 N.W. 921, 70 L.R.A. 320, 109 Ana.St.Rep. 944 (1904); Jones v. Monson, 137 Wis, 478, 119 NW. 179, 129 Am.St.Rep. 1082 (1909).
See, also, Pomeroy, Code Remedies, Section ThIrd, The General Principles of Pleading, 440, p. 590— 592 (4th ed. by Bogle, Boston, 1904).
89. Rex v. Stevens, 5 East 244, 102 Eng.Bep. 1063

(1804); Amhurst v. Slcynncr, 12 East 263, 104 Eng.

Rep. 103 (1810); Foster v. Elliott, 33 Iowa 216

9°. Ia general, on Pleadings in the Alternative, see:

Articles: Hawkins, Alternative and Hypothetical Pleading, 33 Yale L.a. 365 (1924); Bennett, Alterna­tive Parties and the Common Law Hangover, 32 Mich.L.Rev. 30, 60 (1933); McDonald, Alternative Pleadings, 48 Mich.L.Rev. 311, 425 (1950); McDon­ald, Alternative Pleading in the United States, 52 Col.L.Rev. 443 (1952); Id., 52 Col.L.Rev. 603 (1952).
Comments: Pleading—Alternative Pleading—New Rule 48, 19 Tex.L.Rev. 487 (1941).
Dl. English: Griffiths v. Eyles, 1 Bos. & P. 413, 126

Eug.Rep. 983 (1799); King v. Brcreton, 8 Mod. 330,

88 Eng.Rep. 236 (1721); Lord Arlington v. Merrieke,

2 Saund. 410, note 3, 85 Eng.Rep. 1219; Cook


Cli. 6

Sec. 72



defendant, in a case where he is required to perform Several Affirmative Acts, to Plead Generally the due performance of all 92, if the acts imposed are in the Alternative or Disjunctive, such a General Plea will be Am­biguous and improper, since it would riot en­able the Court to determine which of the acts had been done, and No Definite Issue would be formed. The Plea must therefore show the performance of one of the acts, and also clearly point out which one was completed. Thus, in an Action of Debt against a jailer for the escape of a prisoner, where the de­fendant Pleaded that if the said prisoner did, at any time or times after the said commit­ment, etc., ~o at large he so escaped without the knowledge of the defendant, and against his will, and that, if any such escape was made, the prisoner voluntarily returned in­to custody before the defendant knew of the escape, etc., the Court held the Plea bad, for “he cannot Plead Hypothetically that, if there has been an escape, there has also been a return. He must either stand upon an Averment that there has been no escape, or that there have been one, two, or ten escapes, after which the prisoner returned.” °~ So, where it was charged that the defendant wrote and published, or caused to be written and published, a certain libel, this was con­sidered as bad for uncertainty.M
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