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

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°

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

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).

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’

Sec. 61

137

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

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

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)~

DECLARATION—MANNER OF PLEADiNG

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

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

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

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.” ~°

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;

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

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

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

703 (1824).

140

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°

his own Case or Defense, he adequately sup~

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

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.

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).

MATTERS IMPLIED

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).