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OF ELEC-
TION OF
ACTIONS.

Effect of

The circumstance of a party having elected one of several remedies by action, will not in general preclude him from abandoning such suit, and after having duly discontinued it, he may adopt any other remedy. It seems that an action for rent may be supported, although a distress has been made, pro- election. vided it has not produced actual satisfaction (t). The plaintiff cannot in general bring a fresh species of action for the same cause whilst the former is depending, or after it has been determined by a verdigt; and it is a rule that the party applying for an information shall be understood to have made his election, and waived his remedy by action, whatever may be the fate of the motion for the information, unless the Court think fit to give him leave to bring an action (u).

(t) 1 Salk. 248; 1 Ld. Raym. 719; 2 Chit. Rep. 301; 1 B. & A. 157; 5 Moore,

542.

(u) 2 T. R. 198; 1 Chit. Crim. Law,

855, 856; Rex v. Sparrow, Tidd, 9th ed.
10, note (c); 1 M. & R. 278 b; see ante,

229.

*CHAPTER III.

Of Pleading in General (a).

DEFINITION.

I. THE FACTS NECESSARY TO BE STATED.

II. THE MODES OF STATING SUCH FACTS.
III. THE RULES OF CONSTRUING PLEADINGS.
IV. THE DIVISION OF PI.EADINGS."

TION.

DEFINI- PLEADING is the statement in a logical and legal form of the facts which constitute the plaintiff's cause of action, or the defendant's ground of defence; it is the formal mode of alleging that on the record, which would be the support of the action or the defence of the party in evidence (b). It is, as observed by Mr. Justice Buller (c), "one of the first principles of pleading, that there is only occasion to state facts, which must be done for the purpose of informing the Court, whose duty it is to declare the law arising upon those facts, and of apprizing the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it." The grand object contemplated by the system is the production of a certain and material issue (d) between the parties, upon some important part of the subject-matter of dispute between them. The observations of Lord Chief Justice De Grey on the structure of an indictment are very forcible, and equally applicable to the pleadings in civil actions," the charge must contain such a description of the injury or crime, that the defendant may know what injury or crime it is which he is called upon to answer, that the jury may appear to be warranted

(a) I forbear, in this practical treatise, to observe upon the origin, antiquity, and his tory of pleading, or to notice the many ob. servations in the books upon its utility and value; upon this subject the reader may consult 3 Reeve's Hist. Com. Law, 424; Hale's Hist. Com. Law, 173; Mr. Lawes' Treatise on Pleading, 1 to 33, and a tract intituled "A Summary of Pleading," 1 to 7; See also Lord Erskine's Speeches, vol. i. 276, &c. and the valuable publication of Mr. Serjeant Stephen, p. 144, 1st edit. and p. 157, 2d edit. to the end; and vide id. Ap

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(494) "I entertain a decided opinion, that the established principles of pleading, which compose what is called its science, are rational, concise, luminous, and admirably adapted to the investigation of truth, and ought consequently to be very carefully touched by the hand of innovation." Per KENT, Č. J., 1 Johns. Rep. 471. As to the history of pleading, vide 2 Reeve's Hist. E. L. 264, 267, 339, 344, 349. 3 Reeve's Hist. E. L. 59, 61, 423, 443, 461, 469.

NITION.

in their conclusion of guilty' or 'not guilty' upon the premises delivered to THE DEFIthem, and that the Court may see such a definite injury or crime, that they may apply the remedy or the punishment which the law prescribes. The *cer- [*245] tainty essential to the charge consists of two parts; the matter to be charged, and the manner of charging it." (e) Hence the science of special pleading may be considered under two heads; 1st, The Facts necessary to be stated; and, 2dly, The Form of the Statement; and these, together with some general rules of construction, and the division of pleadings, we will consider in the present chapter.

I. THE FACTS NECESSARY TO BE STATED.

I. THE

CESSARY

TO BE

In general, whatever circumstances are necessary to constitute the cause of complaint or the ground of defence, must be stated in the pleadings, and FACTS NEall beyond is surplusage (f) (495); facts only are to be stated, and not arguments or inferences, or matter of law (g)(496), in which respect the pleadings STATED. at law appear to differ materially from those in equity. There are some facts of such a public or general nature, that the Courts ex officio take notice of them, and which consequently ought not to be unnecessarily stated in pleading (h); and therefore it is advisable to consider a few of the principal rules as to the facts of which the Courts will ex officio take notice.

of which

be stated.

The Courts will ex officio take notice when the King came to the throne (i), 1st. Facts and of the king's proclamations of war, &c. (k), and of the articles of war, the Court which are an emanation from the crown by virtue of acts of parliament (1); will ex of and consequently those matters need not be alleged in pleading. So the ficio take notice, Courts are also bound to take notice of all the privileges of the crown (m). should not But private Orders of Council are not considered as matters of law, or of such public nature as to render it incumbent on the judges ex officio to take notice of them (n); and a pardon under the great seal will not be judicially noticed (o); nor will the Courts take judicial notice of an existing war be- [*246 ] tween foreign states, or a recently declared war in which this country is engaged, but the same must be proved, unless recognized by some public statute (p).

(e) Cowp. 682, 683.

(f) Cowp. 683; 1 Ld. Raym. 171; East, 205.

10

(g) Cowp. 683, 684; Com. Dig. Pleader, C. 78; post.

(h) 2 H. Bla. 398; See Steph. on Pleading, 351, 1st edit.; 391, 2d edit.; Co. Lit. 303 b; Com. Dig. Pleader, C. 78; 4 B. & Ald. 243.

(1) 2 Ld. Raym. 794, 791.

44, whence it appears that the proclamation.
will be required to be proved by the Gazette.
See 4 M. & Sel. 532, 543. As to declaration
of war, see 11 Ves. 292; Ld. Raym. 282,
283.

(1) 4 B. & C. 304; 6 D. & R. 424, S. C.
(m) Ld. Raym. 980.

(n) 2 Lil. Prac. Reg. 303.
(0) 4 Bla. Com. 402.

(p) 3 M. Sel. 67, 69; 11 Ves. 292; 2

(k) 1 Ld. Raym. 282; but see 2 Camp. Campb. 44; 3 Id. 61, 67.

(495) Vide Tucker v. Randall, 2 Mass. Rep. 283.
(496) Goshen Turnp. Co. v. Sears, 7 Conn. Rep. 92.

I. THE

FACTS NE-
CESSARY

TO BE

STATED.

[ *247]

The time of holding every Parliament, and the prorogations and sessions thereof (q), and also where any parliament sat, will be taken notice of judicially (r); and therefore neither of these facts should be stated in pleading. ↑ And if either be mis-stated, even in pleading a private act, not before the Court, the pleadings will be defective on demurrer, or in the case of a private act, on the plea of nul tiel record, or any other plea, putting in issue the whole of the facts stated in the declaration (8); but the mistake may be aided by verdict(t). The Courts will also take judicial notice of the course of proceedings in either house of parliament (u), but not of the Journals of either house (x), which must be stated in pleading, and proved in evidence (y).

Public statutes, and the facts which they recite or state, must be noticed by the Courts, without their being stated in pleading (z) (497); and it is only necessary to state facts, which will appear to the Court to be affected by the statute (a). If, however, an offence be created by a statute, and a penalty be inflicted, the mere statement of the facts constituting the offence will be insufficient, for there must be an express reference to the statute, as by the words " contrary to the form of the statute, &c." in order that it may appe ar that the plaintiff grounds his case upon and intends to bring it within the statute (b). In the case of a public statute, it is not advisable to recite or set out any part of it, for a mis-recital (498), with a conclusion "contrary to the form of the statute aforesaid," would be fatal even in arrest of judgment (c). If a statute be passed during a session extending into two years of the king's reign, yet it must be stated to have passed in that session when, by the king's assent, it became a law; and if a statute be described as passed in the 2d & 3d years of Wm. 4, it will be a fatal misdescription, and the judgment on an indictment containing such a misdescription would be arrested; though if the description had been of an act passed in a session holden in the second and third years of the reign, it would be otherwise (d). Where a statute *has been recently made, it has been supposed to be necessary to allege that the facts took place after the passing of the act (e); but if there be a proper conclusion, contra formam statuti, it is not necessary to aver that the offence was after the passing of the act. The Courts will not ex officio take notice of Private Acts (499) of Parliament, and consequently such parts of them as

(9) 1 Ld. Raym. 343; Plowd. 77; Moor,
551;
I Lev. 296; see Bac. Ab. Statute, L.
5. Describing an act to have passed in a
reign, when, in fact, the parliament in which
the act was passed was continued by proro-
gation to that reign, is not a misdescription,
2 Chit. Rep. 513.

(r) Ld. Raym. 210, 343.
(s) Id.; Cowp. 474.

(t) 2 Mod. 240.

(u) 1 Saund. 131 a.

(x) Ld. Raym. 15.

(y) Cowp. 17; Dougl. 569.

(z) 1 Bla. Com. 85, 86; Dougl. 97, n. 12 ;

Bac. Ab. Statute, L.; 2 Wils. 376; Willes, 210; see the reason, per Lord Ellenborough, 4 M. & Sel. 542. A recital in a public statute is evidence of the fact recited, 4 M. & Sel. 532.

(a) 1 T. R. 145; Com. Dig. Pleader, C. 76; Lane, 71; Stephen, 352.

(b) 3 B. & C. 186; 5 D. & R. 13, S. C. (c) Ld. Raym. 382; Dougl. 97; 6 T. R. 776; Bac. Ab. Statute, L. 5.

(d) Rex v. Biers, 1 Adol. & El. 327; 3 Nev. & Man. 475.

(e) 1 Saund. 309 a. n. 8. Sed quære.

(497) Vide Dive v. Maningham, Plowd. 65. (498) Vide Murray v. Fitzpatrick, 3 Caines' Rep. 41. A mis-recital in the title of a public statute, in a part which does not alter the sense, and when its date is truly set forth, is not a cause for arresting judgment after verdict, nor can it be assigned as error. Murray v. Fitzpatrick, 3 Caines' Rep. 38, 41.

(499) { Goshen Turnp. Co. v. Sears, 7 Conn. Rep. 92. }

may be material to the action or defence must be stated in pleading (ƒ); and this in the first instance (g). The mis-recital of a private act can only be taken advantage of by a plea of nul tiel record, or in assumpsit, before the pleading rules, Hil. Term, 4 W. 4, under the general issue (h); though we have seen that if the time or place of holding the parliament be mis-stated, it is a ground of demurrer (i). By a clause in most acts that would otherwise be private, they are now declared to be public, and then the production of any copy without proof suffices (j).

So the courts will ex officio notice the Ecclesiastical (k), Civil, and Marine Laws (1), without any statement of them in pleading; and if there be any misstatement of such laws, or of facts affected by them, the pleading will be held insufficient. Thus, where an administrator durante minore ætate, in his declaration averred that the infant was within the age of twenty-one years, the declaration was holden bad, because the Court would take notice that by the ecclesiastical law such administration ceased at the age of seventeen, and perhaps the executor was of the age of eighteen, though not twenty-one, as alleged in the declaration (m); and the forest laws are not ex officio taken notice of (n) (500).

But the Courts ex officio will not take notice of foreign laws, or of the laws of our plantations; and consequently they must in general, when material, be stated in pleading (o).

I. THE FACTS NECESSARY

TO BE

STATED.

The courts are also bound to take notice of all Common Law Rights and Duties, and of General Customs; and consequently these ought not to be stated in pleading(p). Thus if in a return to a mandamus to restore a burgess of a corporation, it be stated that the party was removed by the *corporate body at large, [*248] it is unnecessary to aver that the power of removal is vested in them, because by intendment of law such power exists in the body at large, unless vested by charter or otherwise in a select part of the corporation (q). And it has been well observed, that in an action against a common carrier or innkeeper for the

(f) 1 Bla. Com. 86; Ld. Raym. 381, 382; Dougl. 97; Bac. Ab. Statutes, L. (g) Carth. 306.

(h) Bac. Ab. Statutes, L. 5; Ld. Raym. 381; Cowp. 474.

(i) Ante, 246; Cowp. 474.

(j) Woodward v. Cotton, 6 Car. & P. 491; 1 Crom. M. & Ros. 44, S. C., overruling Broomhead v. Beaumont, MS.; Chitty's Col. Stat. tit. Statutes.

(k) Bro. Quare Impedit. pl. 12; March. 205; 1 Kol. Ab. 526; Cro. Eliz. 602; 5 Co. 29; Ld. Raym. 338, 1334.

(1) 2 Hen. Bla. 606, n. a.

(m) 5 Co. 29 a; Ld. Raym. 338. But note, this was before the statute 38 Geo. 3,

c. 87, which appoints twenty-one as the age
at which the executor may act.

(n) 2 Leon. 209.

(o) 2 East, 273, 274; Cowp. 174, 343; Salk. 651; Burr. 1077; Rep. tem. Hardw. 85; 4 T. R. 182; 3 Esp. Rep. 164: see also 3 D. & R. 190; Cowp. 343. It should seem the Courts will not ex officio take notice of the law of Scotland, 4 Taunt. 40, 44; see 2 D. & R. 280. As to foreign laws in general, Harrison's Index, tit. Foreigners; Vattel L. Nat. by Chitty, per tot.

(p) Ld. Raym. 175, 1542; Carth. 83, 269; Co. Lit. 89 a, n. 7; see Stephen, 357, 1st edit.; 391, &c. 2d edit.

(4) Dougl. 149; 1 B. & P. 100; Com. Dig. Pleader, C. 78.

(500) The court cannot take judicial cognizance of any of the laws of our sister States at variance with the common law. Holmes v. Broughton, 10 Wend. R. 75. It was held, that a defendant who relies upon the statute of another State, must in his plea set out the statute, that the court may see whether the proceedings were warranted by the statute or not, and the general allegation that the proceedings were pursuant is not sufficient. Walker v. Maxwell, 1 Mass. Rep. 103. Pearsall . Dwight, 2 Mass. Rep. 34. Legg v. Legg, 8 Mass. Rep. 99, the same court declare that they could not take judicial notice of the laws of Vermont, and upon a common law question, they must presume the laws of Vermont to be similar to their own. ib.

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