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- B. PAUL, fINN. WEST PUBLISBING CO. 1969 ADVISORY BOARD AMERICAN CASEBOOK SERIES
- ST. PAUL, MXNN. WEST PUBLISHING CO. 1969
- JOSEPH H. KOFFLER
- PART TWO—OFFENSIVE PLEADINGS—GENERAL CONSIDERATIONS 3. The Commencement of an Action
- PART THREE—OFFENSIVE PLEADINGS—THE COMMON-LAW ACTIONS 7. The Action of Trespass 151 8. The Action of Trespass on the Case 173
- Chapter Page
- Index 647 n TABLE OF CONTENTS PART ONE. DEVELOPMENT OF COMMON LAW PLEADING AND ITS IMPORTANCE IN
- 2. The
- PART TWO. OFFENSIVE PLEADING— GENERAL CONSIDERATIONS
- PART THREE. OFFENSIVE PLEADINGS—THE COMMON-LAW ACTIONS
- TABLE OF CONTENTS Sec. Page
- CHAPTER 10. THE ACTION OF EJECTMENT
- CHAPTER 12. THE ACTION OF REPLEVIN
- 181. Declaration in Indebitatus Assumpsit—Essential Allegations: (4) The Breach 364 182. Declaration in Indebitatus Assumpsit—Essential Allegations;
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OF
By JOSEPH H. KOFFLER Professor of Law New York Law School
Late Dean and Professor of Law New York Law School HORNBOOK SERIES B?. PAUL, fINN. WEST PUBLISBING CO. 1969 ADVISORY BOARD AMERICAN CASEBOOK SERIES HORNBOOK SERIES AND BASIC LEGAL TEXTS NUTSHELL SERIES AND BLACK LETI’ER SERIES JOHN A. BAUMAN Professor of Law University of California, Los Ange]es CURTIS J. BERGER Professor of Law Columbia University School of Law
Dean and Professor of Law University of California, Berkeley
Professor of Law University of Chicago
Dean and Professor of Law Emory University
Dean and Professor of Law Case Western Reserve University
Professor of Law University of Michigan
Professor of Law University of Illinois
Professor of Law Duke University ARTHUR R. MILLER Professor of Law Harvard University JAMES J. WHITE Professor of Law University of Michigan
Professor of Law University of Texas
OF
By JOSEPH H. KOFFLER Professor of Law New York Law School
Late Dean and Professor of Law New York Law School HORNBOOK SERIES ST. PAUL, MXNN. WEST PUBLISHING CO. 1969 COPYRIGHT © 1969 By WEST PUBLISHING CO. All rights reserved ISBN No. O’-3l4—2935l--x KaiSer & Reppy Can.Law Pb9. HO 4th Reprint 1986
S
PREFACE Almost half a century has elapsed since the publication of the third, and final, edition of Shipman’s standard text on Common Law Pleading. The late Dean Alison Reppy, with whom I was associated in teaching tIx~ subject of Common Law Pleading, and who devoted much of his life to study in the field, commenced this work in an effort to meet the need for a new comprehensive work on the subject, but an untimely death cut his efforts short. I was at the time in a position to assume this undertaking, and have worked over the many succeeding years upon the preparation of this work. The responsibility for that appears in these pages is therefore mine. It is my hope that this work will be of assistance to members of the bench, bar, and students of the law, in their professional and scholarly pursuits, I will briefly describe some of the principal features of this work, which are directed towards this end. First: Substantial new materials have been introduced into this work, in addition to the retention of the basic materials included in the Shipman text. This results in the presentation of a wider area of coverage in terms of topics dealt with than is generally found in previous works on Common Law Pleading. A reference to the detailed table of contents will indicate the topics covered with some particularity. Second: In discussions of many of the topics, more has been included in the way of historical background and development than generally appears in previous comprehensive works on Common Law Pleading. Third: Many of the topics have been more extensively treated than is generally the case in comprehensive works on Common Law Pleading. It has always been my view that significant emphasis should be placed upon materials dealing with the forms of action. Certainly most members of the bench, bar, and students of the law, carry with them the memory of Professor F. W. Maitland’s incisive and perceptive observation that, “The forms of action we have buried, but they still rule us from their graves.” This fact has remained too clearly in focus to be blurred from vision by the Codes, and it is considered at some length in the pages of this work. The apportionment of additional space and emphasis is not limited to the forms of action, but is found in the treatment of many of the other topics throughout this work. This is done with a recognition of the validity of Justice Oliver Wendell Hohnes’ statement that, “whenever we trace a leading doctrine of substantive law far enough back, we are very likely to find some forgotten circumstance of procedure at its source.” And to this we may add that whenever we deal with a modern procedural rule, we are likely to gain a better understanding of it, and a utility for its application, by virtue of a knowledge of Common Law Pleading. Fourth: The status under Modern Codes, Practice Acts and Rules of Court of most of the principal procedural devices, including all of the forms of action, is considered in the discussion of each of these topics. The vi- xvii PREFACE
Fifth: Extensive bibliographies of treatises and articles appear at substantially all of the points where the principal topics are discussed. Citations of treatises generally include edition and place and date of publication, so as to make the sources more readily available. Such extensive bibliographies have not been included in the earlier comprehensive works on Common Law Pleading, and it is hoped that this may have the effect of making research considerably less taxing, and substantially more productive. Sixth: For the English cases, in addition to citations in the original reports, parallel citations in the English Reports, a reprint series, are also generally included. Previous compreheusive works on Common Law Pleadings do not contain these citations, as indeed the English &eports; were not yet published when most of them were written. Since law libraries frequently do not contain the original reports, but do contain the English Reports, research may be pursued with these citations without the use of conversion tables and digests, which might otherwise be necessary. This, too, should make research easier and more productive for members of the bench, bar, and students of the law. The decisions, both English and American, have been extensively cited in order to convey an understanding of Common Law Pleading in its early, middle, and later stages, its development, and its effect in Modern Pleading and Practice. I can, of course, do no more than to record my indebtedness to the late Dean Alison Reppy, who commenced this work with such enthusiasm and dedication during his lifetime. I am also indebted to Shipman’s work, and to the works of the many other outstanding authors who have contributed so much in the field of Common Law Pleading. Any attempt to recite all of their names at this point would result in the inevitable risk of omission, and I will therefore ask the reader to take notice of their respective contributions as he makes use of this work. I also wish to express my appreciation to my colleague, Professor John It. Dugan, for generously giving of his time to discuss with me certain of the topics included in this work. And for the secretarial services so faithfully performed by Mrs. Amy Smith in working upon the manuscript, I express my appreciation. I have attempted to set out some of the characteristics of this work in the succinct form required of prefatory remarks, and sincerely hope that this work will serve the purposes for which it is intended. JOSEPH H. KOFFLER New York, New York October, 1069
1. Common-Law Pleading and Practice—Still Survives as the Basis of Modern Remedial Law 1 2. The Development of the Common-Law Forms of Action 31 PART TWO—OFFENSIVE PLEADINGS—GENERAL CONSIDERATIONS 3. The Commencement of an Action 68 4. The Declaration—Form and General Requisites 82 5. The Declaration—General Rules as to Alleging Place, Time, Title and Other Common Matters 102 6. The Declaration—General Rules as to Manner of Pleading ~ 130
10. The Action of Ejectment 225 11. The Action of Detinue 244 12. The Action of Replevin 253 13. The Action of Debt 273 14. The Action of Covenant 303 15. The Action of Account 310 16. The Action of Special Assumpsit 318 17. The Action of Indebitatus Assumpsit 337 PART FOUR—DEFENSIVE PLEADINGS 18. Motions of Defendant After the Declaration and Before the Plea 368
19. Considerations Preliminary to the Classification of Defenses - - 378 20. The Demurrer 384 21. Pleas—Dilatory 410 22. Pleas—Peremptory or in Ear 433 23. TheReplication 513 24. The Production, Tender, and Joinder of Issue 532 Kaff It, & Rtp~ Cto~.taw PId~. RB IlK SUMMARY OF CONTENTS PART FIVE—LITIGATING THE CONTROVERSY Chapter Page 25. Trial by Court or by Jury 536 26. Aider and Amendment 553 27. Retrospective Motions 565 PART SIX—JUDGMENT, EXECUTION AND APPELLATE REVIEW 28. The Judgment 584 29. The Execution 589 30. Appellate Review 596 Table of Cases 605 Index 647 n TABLE OF CONTENTS PART ONE. DEVELOPMENT OF COMMON LAW PLEADING AND ITS IMPORTANCE IN MODERN PRACTICE CHAPTER 1. COMMON-LAW PLEADING AND PRACTICE— STILL SURVIVES AS TEE BASIS OF MODERN REMEDIAL LAW See. Page 1. The Place of Common-Law Pleading in the Law S 2. The Importance of Common-Law Pleading 10 3. The Functions of Pleading at Common Law 13 4. The Development of Substantive Law out of Procedure 17 5. Relation of Common-Law Pleading to Other Systems 19 6. The Status of Common-Law Pleading Under the Codes 24 7. Modern Procedure Under Codes, Practice Acts and Rules of Court—C Merely Another Step in the Evolutionary Development of the Com mon Law 27
FORMS OF ACTION 8. Origin of the Common-Law Forms of Action 32 9. Classification of the Common-Law Actions 46 10. The Ancient Real Actions First in Order of Development 47 11. The Modern Real Actions 53 12. The Modern Personal Actions 56 13. The Effect of the Development of the Forms of Action 58 PART TWO. OFFENSIVE PLEADING— GENERAL CONSIDERATIONS CHAPTER 3. THE COMMENCEMENT OF AN ACTION 14. The Court 69 15. Jurisdiction of Courts 70 16. Process—The Original Writ 71 17. Service—Personal and Constructive 75 18. The Appearance 78 19. The Pleadings So CHAPTER 4. THE DECLARATION—FORM AND GENERAL REQUISITES 20. Formal Parts of the Declaration 82 21. The Actual Statement of the Cause oi Action 86 22. Ultimate and Evidenti~ry Facts 90 28. Ultimate Facts and Conclusions of Law 92 24. Several Counts in the Same Declaration 94 25. Joinder of Different Causes of Action 96 KoffItr & Reppy Can.Law Pida. HO XXI TABLE OF CONTENTS Sec. Page 26. Different Versions of the Same Cause of Action 98 27. Conformance to Process 100 CHAPTER 5. THE DECLARATION_GENERAL RULES AS TO ALLEGING PLACE, TIME, TITLE AND OTHER COMMON MATTERS 28. Laying the Venue 102 29. Local and Transitory Actions 103 30. Local Facts—Venue in Pleadings Subsequent to the Declaration 107 Si. Consequences of Mistake or Omission 107 32. Time 108 33. When Time Must be Truly Stated 108 34. When Time Need Not be Truly Stated 109 35. Time of Continuing Acts 110 36. Description of Property lii 37. Names of Persons 113 38. Parties to the Action 114 S9. Showing Title 115 40. Title in the Party or in One Whose Authority He Pleads 116 41. Alleging Derivation of Title—Estates in Fee Simple 118 42. Alleging Derivation of Title—Particular Estates 119 43. Title by Inheritance 120 44. Title by Alienation or Conveyance 120 45. Manner of Pleading Conveyance ‘20 46. The Written Conveyance and the Statute of Frauds 121 47. Where a Party Alleges Title in His Adversary 122 48. What is a Sufficient Allegation of Liability 122 49. Proof of Title as Alleged 123 50. Estoppel of Adverse Party 124 51. Showing as to Authority 124 52. Profert of Deeds 125 53. Writings Pleaded According t0 Legal Effect 126 54. Damages—General and Special 128 CHAPTER 6. THE DECLARATION—GENERAL RULES AS TO MANNER OF PLEADING 55. Statements to be Positive 130 56. Certainty in General 131 57. When a General Mode of Pleading is Proper 134 58. When General Pleading is Sufficient 135 59. What Particularity is Generally Required 135 60. Facts in Knowledge of Adversary 136 61. Inducement or Aggravation 136 62. Acts Regulated by Statute 138 63. What May Be Omitted—Matters Judicially Noticed 139 64. Matters in Anticipation 140 65. Matters Implied 141 66. Matters Presumed 142 67. Surplusage 142 68. Descriptive Averments 144 69. Repugnancy 145 70. Ambiguity or Doubt 146 XXII TABLE OF CONTENTS See. Page 71. Pleadings in the Alternative 14G 72. Duplicity in General 147 73. Inducement 148 74. Consequences of Duplicity 148 75. Pleadings to be True 149 76. Conformance to Customary Forms 150
CHAPTER 7. THE ACTION OF TRESPASS 77. Scope of the Action 152 78. Forms of the Declaration 154 79. Declaration in Trespass—Essential Allegations: (1) In General 156 80. Declaration in Trespass—Essential Allegations: (2) The Plaintiff’s Right, Title, Interest or Possession 156 81. Declaration in Trespass—Essential Allegations: (3) The Defendant’s Wrongful Act 164 82. Declaration in Trespass—Essential Allegations: (4) The Damages 170 83. Status Under Modern Codes, Practice Acts and Rules of Court 170 CHAPTER 8. TilE ACTION OF TRESPASS ON THE CASE 84. Scope of the Action 173 85. Case Distinguished From Trespass 176 86. Election Between Trespass and Case 181 87. Form of the Declaration in Trespass on the Case 182 88. Declaration in Trespass on the Case-Essential Allegations: (1) In General 183 89. Declaration in Trespass on the Case—Essential Allegations:
90. Declaration in Trespass on the Case—Essential Allegations: (3) The Facts Showing the Existence of a Legal Duty on the Part of the Defendant 183 91. Declaration in Trespass on the Case—Essential Allegations: (4) The Defendant’s Wrongful Act in Breach of His Duty 184 92. Declaration in Trespass on the Case—Essential Allegations: (5) The Damages 186 93. Particular Applications of Case as the Great Residuary Common-Law Remedy for Various Wrongs 187 94. Anticipating Defenses in Case 202 95. The Expansionistic Character ofCase 203 96. Status Under Modern Codes, Practice Acts and Rules of Court 203 CHAPTER 9. THE ACTION OF TROVER 97. Scope of the Action 206 98. Property Which May be Converted 207 99. Trover—Distinguished from and Concurrent with Other Actions 209 100. Form of the Declaration in Trover 211 nIH
TABLE OF CONTENTS Sec. Page 101. Declaration in Trover—Essential Allegations: (1) In General 211 102. Declaration in Trover—Essential Allegations: (2) The Plaintiff’s Right, Title, Interest or Possession 212 103. Declaration in Trover—Essential Allegations: (3) The Defendant’s Wrongful Act of Conversion 217 104. Declaration in Trover—Essential Allegations: (4) The Damages 223 105. Status Under Modern Codes, Practice Acts and Rules of Court 223 CHAPTER 10. THE ACTION OF EJECTMENT 106. Scope of the Action 225 107. Ejectment—Distinguished From and Concurrent with Other Actions 236 108. Forms of Declaration and Common Consent Rule 236 109. Declaration in Ejectment—Essential Allegations: (1) In General 237 110. Declaration in Ejectment—Essential Allegations: (2) The Plaintiff’s Right, Title, Interest or Possession 2’38 111. Declaration in Ejectment—Essential Allegations: (3) The Wrongful Ouster or Dispossession 288 112. Declaration in Ejectment—Essential Allegations: (4) The Damages 238 113. The Judgment in Ejectment 239 114. Declaration in Trespass for Mesne Profits—Essential Allegations: (1) In General 239 115. Declaration in Trespass for Mesne Profits—Essential Allegations: (2) The Plaintiff’s Right, Title, Interest or Possession 240 116. Declaration in Trespass for Mesne Profits—Essential Allegations: (3) The Ouster or Ejeetment 241 117. Declaration in Trespass for Mesne Profits—Essential Allegations: (4) The Damages 241 118. Status of Ejectment and Trespass for Mesne Profits Under Modern Codes, Practice Acts and Rules of Court 241 CHAPTER 11. THE ACTION OF DETINUE 119. Scope of the Action 244 i20. Detinue—Distinguished From and Concurrent with Other Actions -. 247 121. Forms of Declaration and Judgment in Detinue 248 122. Declaration in Detinue—Essential Allegations: (1) In General 249 123. Declaration in Detinue—Essential Allegations: (2) The Plaintiff’s Right, Title, Interest or Possession 249 124. Declaration in Detinue—Essential Allegations: (3) The Unlawful Detention 250 125. Declaration in Detinue—Essential Allegations: (4) The Damages 251 126. Status Under Modern Codes, Practice Acts and Rules of Court 251
121. Scope of the Action 253 128. Beplevin—Distinguished From and Concurrent with Other Actions - - 257
129. Forms of Original Writ, Plaint, Declaration and Bond in Replevin -- 258 130. Declaration in Replevin—Essential Allegations: (1) In General 262 131. Declaration in Replevin—Essential Allegations: (2) The plaintiff’s Right, Title, Interest or Possession 262 132. Declaration in Replevin—Essential Allegations: (3) The Wrongful Act of Taking and Detention by the De fendant 266 133. Declaration in Replevin—Essential Allegations: (4) The Damages 268 184. Status Under Modern Codes, Practice Acts and Rules of Court 270 CHAPTER 13. THE ACTION OF DEBT 185. Scope of the Action 274 136. Debt—Distinguished From and Concurrent with Other Actions 278 137. Forms of Declarations 279 188. Declaration in Debt—Essential Allegations: (1) In General 282 139. Declaration in Debt—Essential Allegations: (2) In Debt on Simple (Executed) Contract 285 140. Declaration in Debt—Essential Allegations: (3) In Debt on a Specialty 292 141. Declaration in Debt—Essential Allegations: (4) In Debt on a Statute 295 142. Declaration in Debt—Essential Allegations: (5) In Debt on a Judgment 297 143. Status Under Modern Codes, Practice Acts and Rules of Court 299 CHAPTER 14. THE ACTION OF COVENANT 144. Scope of the Action 303 145. Covenant—Distinguished From and Concurrent With Other Actions 805 146. Form of Declaration in Covenant 306 147. Declaration in Covenant—Essential Allegations: (1) In General 306 148. Declaration in Covenant—Essential Allegations: (2) The Execution of the Covenant 306 149. Declaration in Covenant—Essential Allegations: (3) The Promise 307 150. Declaration in Covenant—Essential Allegations: (4) The Performance of Conditions Precedent 307 151. Declaration in Covenant—Essential Allegations: (5) The Breach 307 152. Declaration in Covenant—Essential Allegations: (6) The Damages 808 153. Status Under Modern Codes, Practice Acts and Rules of Court 308 CHAPTER 15. THE ACTION OF ACCOUNT 154. Scope of the Action 310
156. Form of Declaration in Account 314 fly
157. Declaration in Account or Account Render—Essential Allegations: (1) In General 815 158. Declaration in Account or Account Render—Essential Allegations: (2) A Statement of the Facts Showing a Legal Relation Be tween Plaintiff and Defendant Which Gives Rise to the Right to an Accounting 315 159. Declaration in Account or Account Render—Essential Allegations: (3) The Refusal to Account or the Breach 316 160. Declaration in Account or Account Render—Essential Allegations: (4) The Damages 316 161. Status Under Modern Codes, Practice Acts and Rules of Court 316 CHAPTER .16. THE ACTION OF SPECIAL ASSUMPSIT 162. Scope of the Action 318 163. Special Assumpsit—Distinguished From and Concurrent With Other Actions 821 164. Form of Declaration in Special Assumpsit 322 165. Declaration in Special Assurnpsit—Essential Allegations: (1) In General 323. 166. Declaration in Special Assumpsit—Essential Allegations: (2) The Statement of the Making of the Contract and the Terms of Promise on winch the Action is Founded 323 167. Declaration in Special Assumpsit—Essential Allegations: (3) The Consideration 325 168. Declaration in Special Assumpsit—Essential Allegations: (4) The Performance by Plaintiff of All Conditions Precedent - - 328 169. Declaration in Special Assumpsit—Essential Allegations: (5) The Breach 332 170. Declaration in Special Assumpsit—Essential Allegations: (6) The Damages 333 171. Status Under Modern Codes, Practice Acts and Rules of Court 334 CHAPTER 17. THE ACTION OF IN]3EBITATUS ASSUMPSIT 172. Scope of the Action 337 173. Express Contracts Which Do Not Exclude Indebitatus Assumpsit - - - 338 174. Indebitatus Assumpsit Distinguished From and Concurrent With Other Actions 343 175. Forms of Declarations in Indebitatus Assumpsit 344 176. The Common Counts 347 177. Contracts of Record and Statutory Liabilities 360 178. Declaration in Indebitatus Assumpsit—Essential Allegations: (1) In General 362 179. Declaration in Indebitatus Assumpsit—Essential Allegations: (2) Statement of an Executed Consideration 362 180. Declaration in Indebitatus Assumpsit—Essential Allegations: (3) The Promise 364
(6) The Damages 865 183. Status Under Modern Codes, Practice Acts and Rules of Court 365 xrvrI
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