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Stat, of Westminster II, 13 114w. i, i statutes at Large, 205 (1285). t52 LITIGATING THE CONTROVERSY

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43. Stat, of Westminster II, 13 114w. i, i statutes at

Large, 205 (1285).



Ch. 25

called a Special Verdict, hold the Jury to the line of duty, require orderly thought, and fa­cilitate the granting of New Trials or ade­quate Appellate Review on separate and spe­cific points. The situation in respect to the Special Verdict is like that when the Trial is by the Court, in which case the Judge is not permitted to make a General Finding of Fact and Law, as in a General Verdict, without separate findings on the particular issues raised.

Under Modern Statutory Provisions, how­ever, Special Questions, stating Each Point Separately, may be framed and submitted by the Court on request of Counsel, which the Jury must answer before their discharge, so that the true legal significance of Ascer­tained Facts may be declared by the Court. It is thus possible to see how the Facts are determined, whether the Law is properly ap­plied, and how the Special Findings harmo­nize with the General Conclusion.
(111) The Effect of a Variance Between the Charge and the Proof.—As observed above, the Verdict must be responsive to the Issue as made by the Pleadings and as sub­mitted for Trial. It was, therefore, essential for the Party upon whom rested the Burden of Proof to establish by Adequate Proof the Substance of the Issue in his favor. Of course, if there was a Total Failure of Proof, it became the duty of the Jury to Find the Issue in favor of the opposite party. When, however, there was a discrepancy between what the plaintiff alleged in his Declaration and what he proved at the Trial, the discrep­

-ancy was called a Variance. Thus, if A al­leged that B took his black horse, to which B pleaded Not Guilty, and at the Trial A of­fered evidence that B took his white horse, with a black front forefoot, B could Move for a Nonsuit on the ground of a Variance. Such

-a Variance at Common Law was as fatal to the party bearing the Burden of Proof as if

there were a Total Failure of Evidence, as the Jury is bound to find against him upon such discrepancy between the Issue and the Proof.

(W) The Rule Nisi.—After a Verdict at the Nisi Prius Trial, the Party against whom the Verdict has been rendered, may obtain a “RuJe Nisi,” as, for example, to set aside the Verdict and Enter a Nonsuit, which, in effect, is an Order by the Court to the Adverse Par­ty to show cause why such relief should not be granted. Upon Motion and Argument of the question, if the Court grants the relief requested, it makes (as it is said) the Rule Absolute. If, however, the Court denies the Motion, it (as it is said) Discharges the Rule, which means that the party who obtained the Rule Nisi should obtain nothing.
(V) A Special Case, or Reservation of a Point—Whether a Jury shall return a Gen­eral or Special Verdict is a matter entirely in its own option. The party objecting in Point of Law cannot therefore insist on a Special Verdict, hence he may be compelled to Demur to the Evidence, if he desires to make the ob­jection a Matter of Record, without which no Review may be had on Writ of Error. If, however, his object be merely to obtain a de­eision in the Court in bane at Westminster, he need neither Demur to the Evidence, nor take a Special Verdict, but merely take a General Verdict, subject, as it is said, to a Special Case.
A Special Case is a written statement of all the Facts proved at the Trial, drawn up for the opinion of the Court in bane. It is usual­ly drawn up by the Counsel and Attorneys on either side, under the direction of the Judge at fl183 prius. The Party for whom the Gen­eral Verdict is given, is not entitled to Judg­ment until the Court in bane has decided the Special Case. According to the result of that decision, the Verdict is ultimately entered for hint or his adversary.









Pleading Over Without Demurrer,

Aider by Pleading Over: Without Verdict.

Aider by Verdict.

The Statutes of Jeofails.

and Rules of Court.

297, A party may in many Cases Plead Over Without Demurring, and, Notwithstanding such Pleading, afterwards avail himself of an in­sufficiency in the Pleading of his Adversary. Rut there are certain exceptions to this rule.
I. In general, on the Origin, Flistory and Develop­ment of- the subjects of Aider, Amenduient and the Statutes of Jeofails, see:
Treatises: Gilbert, The History and Practice of civil Actions Particularly in the Court of Common Pleas, c. X, Of Amendments at Common Law, and by the Statutes, and Objections to the Uncertainty of Dec­larations, 107—182 (3d ed. London 1779); 1 Tidd, The Practice of the Court of King’s Bench in Person­al Actions, c. XXX, Of Dem,irrers ned Amendment, 647 (Philadelphia, 1807); 3 Reeves, History of the English Law, e. XIX, The Statute of Amendments, 451; c. XX, Statutes of ,leof ails, 474; c. XX1IJ, Of Pleading—Of Jeof all and Amendment, 610 (Edited by Finlason, Philadelphia, 1880); 4 Id., c. XXVIII Statute of Jeofail, 406; 5 Id., c. XXXVIII, Of Jeofails, 308; Stephen, A Treatise on the Principles of Pleading in Civil Actions, c. II, Of the Principal Rules of Pleading, 110, 126, 165, 370, 393 (3d Am. S. by Tyler, Washington, D.C., 1900); Holdsworth, The Development of Written and Oral Pleading, 2 Select Essays in Anglo-American Legal History, Pt. III, 614 (Boston 1908); Scott, Fundamentals of Procedure in Actions at Law, e. V, Amendments and Jeofails, 143 (New York 1922); Shipman, Handbook of Common-Law Pleading, e. XII, De­murrer, Alder and Amendment, 277—297 (St. Paul 1923); Keigwin, Cases In Common Law Plead­ing, Bk. II, Rules of Pleading, c III, Aider of De­fects. 494 (24 ed., Rochester 1934); Clark, Handbook of the Law of Code Pleading, c. 12, Amendment and Alder of Pleadings, 708 (2d ad., St. Paul 1947)-

EXCEPTIONS: When faults in Pleading are

aided by

(I) Pleading Over.

(II) Verdict.

(III) The curative effect of Statutes as to

Matters of Form.

WHILE, as we have seen, it is the effect of

a Demurrer to admit thc truth of all Matters
Articles: Clark & tenon, Amendment and Aider of

Pleadings, 12 Miun.L.Ecv. 97 (1028); Scott, The

Progress of the Law, 1018—1919, Civil Procedure— Amendment of Pleadings, 33 Harv.L.Rev. 212 (1919).
Comments: Statute of Limitations—Amendment of Declaration, 11 Harv.L.Rev. 345 (1898); Statute of Li,nitations—Ameudment of Declaration After Stat­utory Period, 15 Harv.Litev. 587 (1902); Civil Pro­cethire and Football—Defeating a Valid Claim by Pleading and then Demurring, While the Statutc of Limitations Runs, 4 Il1.L.Rev. 344 (1909); Plead­ing—Aniendment After Limitation Period. 23 Han’. L.1tev. 570 (1910); Pleading—Amendment of Dec­laration After Statute has Run—Whether an Amendment from Common Law Action to Statutory Action on the Same Facts Is Permissible, 30 Harv. L.Rev, 294 (1916); PleadIng—Federal Employers’ Liability Act—Limitations—Defenses, 3 1Iinn.L.Rev. 59 (1918); Limitation of Action—Pleading—Amend­ments Restating Cause of Action, 5 Iowa L.Biil. 275 (1920); Pleading—Limitatioa of Action—Amend­ments Stating New Cause of Action, 29 Yale L.J. 685 (1920); Amendment of Plaintiff’s Pleading t~ Assert Claim Against Third-Party Defendant, ~ Fe&Rules Serv. 811 (1942); Pleading—Amendments Changing the Cause of Action—Limitations of Ac­tion—New Statute Proposed, 25 N.C.L_ev. 7~ (19401; Process—Misnomer In Summons—&merjJ­ment, 48 Mich.L.Rev. 719 (1950).


Status of Aider and Amendment—Under Modern Codes, Practice Acts




Ch. 26

of Fact sufficiently Pleaded on the other side, it cannot be said, e converso, that it is the ef­fect of a Pleading to admit the sufficiency in Law of the Facts adversely alleged. On the contrary, it has been seen that, upon a De­murrer arising at a later Stage of the Plead­ing, the Court will retrospectively consider the sufficiency in Law of Matters to which an answer in Fact has been given. And it has al­so been shown that, even after an Issue of Fact and Verdict thereon, the Court is bound to give Judgment on the whole record, based upon an examination of the legal sufficiency of all Allegations, throughout the whole se­ries of the Pleadings. It follows, therefore, that advantage may be often taken by either party of a legal insufficiency in the Pleading of the other side, either by Motion in Arrest of Judgment, Motion for Judgment Non Ob­stante Veredicto, or Writ of Error, according to the circumstances of the Case, although he has answered instead of Demurring, provided the Case is not one within the exceptions above noted, and which will now be ex­plained; that is, provided the fault is not cured by the subsequent Pleading, or cured or Aided by Verdict, or by a Statute requiring the objection to be raised at a particular Stage of the Proceeding.



298. If the party wishes to Plead, instead of Demurring, and still preserve his right of ob­jection to a defective adverse Pleading, he must so frame his own Pleading as to avoid waiver of such defects by the formation of a complete issue. A defect in Pleading is Aided if the adverse party Plead Over to or answer the defective Pleading in such a manner that an informality or omission therein is supplied or rendered formal or intelligible. A defect of this character may be thus supplied either:

(I) Expressly, or
(II) By Implication.
Aider Defined

ASSUMING that a Pleading is either for­mally or substantially defective, any subse­

quent Act in the course of the litigation which supplies, waives or otherwise rectifies the error in the Pleading, whether it be one

•of Commission or omission, is an Aider. Thus, for example, to maintain an Action of Trover the plaintiff must allege Possession or Right to Immediate Possession, Wrongful Act of Conversion and Damages. Suppose, however, he omits the Allegation as to Possession or Right to Immediate Possession. If, at the next succeeding Stage of Pleading, the de­fendant, by his Plea, supplies the missing Al­legation of Possession or Right to Immediate Possession, the defect in the plaintiff’s Decla­ration is said to be Aided or cured.

The Modes of Aider were five in number, three of which operated in advance of any Verdict and independent thereof, whereas two came into play after Verdict and only by reason of the Verdict. For purpose of dis­cussion, therefore, we may say that we have two types of Aider, to wit, Aider without Ver­dict and Aider by Verdict2
Aider Without Verdict—By Subsequent Pleading

PRIOR to a Verdict and independent of a Verdict, defects in a Pleading may be cured in one or more of three possible ways, the Mode of Aider being dependent upon the character of the defect.

(I) By Pleading Oven—As we have seen, after the Statute of Elizabeth (1585) and the Statute of Anne (1705), all Defects in Form not made the subject of a Special Demurrer were Aided. If the Adverse Party failed to Demur at all or entered a General Demurrer, or Pleaded over Matter of Fact, he automati­cally waived the Formel Defect in the Plead­ing and thereafter could not take advantage of such insufficiency upon any Demurrer at
2. This division of the topic is borrowed directly from ICeigwin, Cases in Common Law Pleading, Bk.

II, -e. III, Aider of Defects 494 (24 ed. Rochester, 1934).

Sec. 298



any Subsequent Stage of the Pleadings,3 and obviously not after Verdict. In the Anon y­nzaus case, Holt, Chief Justice, in referring to Objections in Form, said that “if a man Pleads Over, he shall never take advantage of any slip committed in the Pleading of the other side, which he could not take advantage of upon a General Demurrer.” ~

(II) By Express Averment .—Where a Substantive Allegation of Fact is Omitted from a Declaration or Other Pleading, and in the Next Succeeding Stage in Pleading is sup­plied by the Adverse Party, such subsequent statement operates to cure the Defect in the Original Pleading. Thus, in the famous case of Brooke v. Brooke,6 A brought Trespass for taking a hook, but failed to allege possession. B Pleaded that while going over A’s land, over which he had a right of way, he met A and took the hook out of his hands. On Mo­tion in Arrest of Judgment, the Court held that the defendant by his Special Plea had cured the Declaration by supplying the Miss­ing Allegation of Possession. And so, in La-
~. Tubes v~ Caswell, S Wend. (N.Y.) 130 (1831); Cooke V. Graham’s Aclm’r, 3 Craneli (U.S.) 229, 2 LEd. 420 (1805).
4. 2 Salk. 519, 91 Eng.Rep. 442 (1701). See, also, Illi­nois: Nordhaus v. Vandalia It. Co., 242 III. 166,

169, 89 N.E. 074 (1900) People v. American

Life Ins. Co., 267 Ill. 504, 507, 108 N.E. 679 (1915).

See, also, Bauman V. Bean, 57 Mich. 1, 23 NW. 451

And that Defects not subject to General De,nurrer are cured by Pleading Over, see 31 Cyc, 7Th, it 75.
5. Anonymous, 2 Salk’. 519, 91 EngJlep. 442 (1701).
6. 1 SM. 154, 82 Eng.Eep. 1044 (1064). See, also,

English: Fletcher v. Pogson, 3 Barn. & 0. 192, 107 Bng.Rep. 705 (1524); Illinois; Wallace y, Curtiss, 36 Ill. 156 (1884).

Pleading the General Issue waives Defects in the

Writ or a Variance between the Writ and Declara­tion. Mississippi: Barrow v. Burbridge, 41 Miss.

622 (1568); North Carolina: Mills v. carpenter, 32

N.e. 298 (1849); Federal: M’Kenna v. Fisk, 1 flow.

241, 11 L.E4. 117 (1843).
But although waiving Avcrments otherwise neces­sary, it does not dispense with Proof of Material Allegations. Ohio & M. B. B. Co. v. Brown, 23 In. 93 (1859).

fayette Jn$. Go, v. Frenclv,7 a Declaration which failed to affirmatively show the Juris­diction of the Court, was cured by a Replica­tion which contained the necessary Aver­ments. Likewise, a Defective Plea may be cured by the required Allegation in the Repli­cation.8
(III) By Implied Admission,s.—An An­swering Pleading may actually supply a De-~ fect or Omission by Express Allegation of the Fact which should have been stated, or it may contain an Implied Admission, correcting the Informality by waiving it.9 Thus, where the plaintiff sues as a corporation, Alleging due incorporation according to the Laws of the State wherein it was organized, and the de­fendant Pleads to the merits without raising any question as to the Authority of the Plaintiff to Sue, the defendant’s Plea implies that the plaintiff is entitled to Sue in the Ca­pacity of a Corporation, and any imperfec­tion in the plaintiff’s Authority will, in some States at least, be deemed to be waived. And likewise where a plaintiff purports to Sue as a Personal Representative, that is, as an Ad­ministrator or Executor. And a General Al­legation of a “good and valuable considera­tion” in the Contract Field, or that the plain­tiff was injured “by the negligent operation of the defendant’s engine’, in the Tort Field, may be waived by a General Demurrer, or taken advantage of upon a Special Demurrer; but if the Adverse Party fails to Demur for insufficiency, or to take Issue upon an Ill-Pleaded Allegation, and Pleads to other Facts stated in the Pleading, the Ill-Pleaded Fact will stand Admitted by Implication as a re­sult of ignoring it and taking Issue upon a Collateral Matter. But no such Implied Ad­18 flow. 404, 15 LEd. 451 (1855).
United States ‘~c Morris, 10 Wheat. 246, 286, 6 LEd. 314. 323 (1825).
9. A ground of General Demurrer can be ~vaived by Pleading to the Merits, but not suet, substantial de­fects as would render it insufficient to sustain a Judgment. Chicago & A. B. Co. v. Clausea, 173 Ill. 100, 50 N.E. 680 (1898).




Ch. 26

mission will operate to cure a Defect in Sub­stance.’° Such an Omission must be Express­ly Supplied.”

In cases where Defects have been supplied by Implication, the passing over of such In­sufficient Averment, plus the Pleading to a Collateral Matter, has been said to be Aided by Verdict under the Statutes of Jeofails, and, according to Keigwin,12 where there is a Ver­dict, the Courts seem to have a preference for putting the Aider upon those Statutes, as if the curative effect of such Pleading was of Statutory Origin. But, says Professor Keig­win, “in Buckland v. Otley,13 . - . al­though there was a Verdict, the Declaration was said to be made good by the Mere Plead­ing of a Collateral Plea; and in Cutler v. $outhern,’4 there was no Verdict at all, and the bad Pleading as to Cook’s Suit was held on Demurrer to be waived by the defendant’s Pleading to something else. These and some like cases appear to establish the principle

- . that a Defect may be Waived by Pleading to a Collateral Matter, and this up­on the theory of an Implied Admission, and without the Aid of a Verdict or of Statutes which require a Verdict for their operation.”

299. At Common Law, and independent of any Statutory provision, After Verdict, it shall
20. IllInois: Cross v. City of Chicago, 195 mAp0. 86,

89 (1915); New Hampslurc: Roberts v. Dame, 11

N.H. 226 (1840); New York: White v. Dehavan, 21.

Wend. (‘N.Y.) 26 (1839).

An express denial of a Material Fact, omitted from the Declaration or other Pleading, will by the weight of authority cure such omission. Illinois: Wallace

v. Curtiss, 36 Ill. 156 (1864); Tennessee: Bruce V.

Beafl, 100 Tenn. 573, 47 SW. 204 (1898); 31 Cyc.

11. See, Illinois: Wallace v. Curtiss, 36 mU. 156

(1764); Maine: Luhiot s’ Stuart, 15 Me. 160 (1838);

Massachusetts: Slack v. Lyon, 0 Pick. (Mass.) 62

12. Cases in common Law Pleading, Bk. IT, c. III, Aider of Defects, 495 n. 6 (24 ed. Rochester, 1934).
it ‘Cro.J.e. 683, 79 Eng.Rep. 592 (1623).
14. 1 La.. 194,83 EngRep. 365 (1667).

be intended that Due Proof was made at the Trial of any Fact which, though Ill-pleaded, was so far a part of the Issue as made by the Pleadings that the Verdict rendered could not have been found without such Evidence of the Facts Insufficiently Alleged as is necessary to establish completely the validity of their ex­istence; and by virtue of the presumption thus raised, the Verdict operates to cure or Aid the Defective Allegation so that any Deficiency therein cannot he seized upon to Arrest the Judgment.
A VERDICT is rendered by a Jury, Im­paneled and sworn for the Trial of a Cause, upon which Evidence is presented by Both Parties, and it is reported to the Court, upon Issues duly submitted to the Jury upon the Trial. As a result of the Trial, on the basis of Evidence presented, the ease as presented by the Pleadings may be supplemented. Thus, the Evidence may supply matters not previously disclosed, make clear Facts which were left in doubt by the Allegations in the Pleadings, and clarify other Issues not clear­ly presented in the Pre-Trial Proceedings. Under such circumstances certain Deficien­cies in the Pleadings may be Aided by a Ver­dict, operating by either one of Two Meth­ods, which are diverse in character. In one situation the remedial effect of the Verdict is the result of the Common Law Principle of Intendment After Verdict; in the other the Aider by Verdict flows directly from the ef­fect of a Series of Statutes, known as the Stat­utes of Jeofails. Aider by the Common Law Principle of Intendment after Verdict, and Aider by virtue of the Statutes of Jeofails, constitute the Fourth and Fifth Modes of Aid­er, which will now be considered in their re­spective order,
Aider by the Common Law Principle of In­tendment After Verdict

WHERE, iii setting forth a Cause of Action or a Defense, as the case may be, a Pleader fails to allege a Fact sufficiently or to ade­quately state a right, no presumption arises to validate his Fact or to complete his right.

Sec. 299



In fact, as the Pleader is presumed to tell his side of the controversy in the light most f a­vorable to himself, the presumption is that any failure to sufficiently state what is essen­tial to make out his case is to be attributed to the circumstance that the Omitted Facts did not exist. However, in the case of Hitchin v. Stevens,15 where the purchaser of a rever­sion brought an Action of Debt for rent, but alleged no attornment, the defendant pleaded Nil Debet, and there was a Ver­dict for the plaintiff, whereupon the defend­ant Moved in Arrest of Judgment on the ground that the plaintiff had insufficiently set forth his title to the rent, having failed to allege an attornment, the Court held that in any case where anything is Omitted in a Declaration, even though it be Matter of Sub­stance,16 if it be such as, without proving it at the Trial, the Court could not have had a Verdict, and there be a Verdict for the plain­tiff, such Omission shall not Arrest the Judg­ment. Accordingly, Judgment was Entered for tIme plaintiff. The Verdict thus placed the case in a different light; the Fact of Title having been imperfectly alleged, because of
15. 2 Show.K.B. 233, 89 Eng.Rop. 909 (1682).
16. But compare Da costa v. Clarke, 2 B. & P. 257,

126 Eug.Rep. 1265 (1500), where the court held that an imperfect Averment of a Material Fact was not Aided by Verdict in favor of the pleader In such a case, before the Rule can operate, there must be a sufficient Averment to serve as a peg to hang the omitted matter on, [See opinion of Buluer, J., in Spiers v. Parker, 1 T.R. 141, 99 Eng.Rep. 1019 (1786)1, or, stated otherwise, there must be at least a partial statement of a substantive fact before any presumption will arise that the circumstances requisite to a complete statement were in reality proved at the Trial.
For an instructive statement and application of the principle, see Wills v. Claflin, 92 U.S. 135, 23 LEd. 490 (1875). See, also, Alabama: Contorno V. Ens­ley co., 211 Ala. 211, 100 So. 127 (1924); Illinois:

Miller v. Kresge Co., 309 III. 104, 137 N.E. 385 (1922); New York: Sherwood v. Chace, 11 Wend, (N.Y.) 381 (1833).

And for an exhaustive discussion of this topic, with citation of many authorities, see State v. Freeman,

63 Vt. 496, 22 AU. 621 (1891).

failure to show attornment, was nevertheless put in Issue so that its truth had to be tried, and on the basis of the evidence as presented at the Trial, the Fact of Title was found in favor of the plaintiff. From this flowed a presumption that at the Trial the plaintiff Proved the Allegations, though not correctly stated, which were essential to make out the Ultimate Fact of Title.

To the Common Law Principle of Intend­ment After Verdict there were two limita­tions:
(I) Where There is no Peg to Hang the Omitted Matter On.—Where the Defective Pleading sought to be Aided by Verdict un­der the Principle of Intendment contains no Averment at all, imperfect or otherwise, of the Ultimate Fact required to establish the Pleader’s Case, no presumption can arise that the Fact was proved, and it follows logi­cally that the Verdict cannot Aid the Com­plete Omission. The same idea has frequent­ly been expressed in the statement that a Verdict will cure a Defective Statement of a Good Title, but not the Statement of a Defec­tive Title; in other words, as Professor Keig­win observed: “The Verdict will supplement an Incomplete Pleading, but will not supply a Total Want of Averment.” 17 Although one who alleges an imperfect case is entitled to a Verdict if he proves the Facts as alleged, obtaining a Verdict affords no presumption that he has proved what he has failed to allege at least by implication, or to some extent by suggestion - Thus, in the case of Buxendin v. Sharp)8 where the plaintiff alleged that the
11. Cases in Common-Law Pleading, Bk. II, c. Ill, Aider of Defects, 495 (2d ed., Rochester 1934).
But see, Skinner v, Gunton, 1 Wins. Saund. 229, 85 Engilep. 249 (169W, in which it was held that a Dec­laration in case for Malicious Prosecution, which omitted an Allegation that the former proceed­ing had ended, was Aided by a Verdict for the plain­tiff. But a failure to allege want of probable cause constitutes a substantive defect, and hence presum­ably would not be Aided by Verdict. Dennehey v. Woodsum, 100 Mass. 195 (1868).

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