PLEADING UNDER THE CODES.

CHAPTER I.

NATURE OF PLEADING IN GENERAL.

1. What is an action.

2. Definition and object of pleading.

3. Pleading at common law.

4. Pleading in equity.

5. General features of Code pleading.

6. Parts of Code pleading.

1. What is an action. An action, in the ordinary use of the term, is simply a legal demand of one's right. It is usual, when speaking of a legal proceeding, to use the terms "action" and "suit" as synonymous, but the word "suit" is the more general term of the two, and in fact includes an "action." An action is an abstract legal right in one person to prosecute another in a court of justice, and a suit is the actual prosecution of such right in a court of justice.3 According to the definition of Harris, J., any judicial proceeding which, if conducted to a termination will result in a judgment, is an action. As defined by the

New York Code, "an action is an ordinary proceeding in a court of justice, by which a party prosecutes another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." The whole idea of

BOONE PLEAD. — 1.

an action seems to include not only the act of a plaintiff who makes a lawful demand, and the act of a defendant in opposition, but also the act of a court in passing judgment between the parties. Civil actions are such as may be prosecuted for the enforcement or protection of private rights, or the redress or prevention of private wrongs.

1 Co. Litt. 285; 3 Blackst. Com. 116; Bridgton v. Bennett, 23 Me. 425; Overseers etc. v. Beedle, 1 Barb. 11; People v. Sage, 3 How. Pr. 56; Bank of Commerce v. Rutland etc. R. R. Co. 10 How. Pr. 1, 9.

2 People v. Colborne, 20 How. Pr. 381. And see Co. Litt. 291 a; Didier v. Davison, 10 Paige, 517; Matter of Hunter, 6 Ohio, 499. 3 Matter of Hunter, 6 Ohio, 499.

4 People v. County Judge etc. 13 How. Pr. 400.

5 Code Civ. Proc. 2. This definition has been adopted into the Codes of practice in many of the States: See Cal. Code Civ. Proc. 22; N. C. Code Civ. Proc. 2; Tate v. Powe, 64 N. C. 644; Kramer v. Rebman, 9 Iowa, 114.

6 People v. Colborne, 20 How. Pr. 380.

7 Cal. Code Civ. Proc. ?? 22, 307.

? 2. Definition and object of pleading.—The mutual altercations which constitute the pleadings in civil actions consist of those formal allegations and denials, which are offered on one side for the purpose of maintaining the suit, and on the other for the purpose of defeating it.1 Or they are the written allegations of what is affirmed on the one side, or denied on the other, disclosing to the court or jury who have to try the cause the real matters in dispute between the parties.2 Pleading is the formal mode of alleging that on the record which would be the support or defense of the party on evidence. Its office is to present the cause of action on one side, and a defense on the other, and this is true under every system of pleading. The principles of pleading, whatever the system, are always the same; and the grand object contemplated is the production of a certain and material issue between the parties which they refer to a trial, in order that justice

may be administered between them with regularity and certainty:6 And it was an observation of Chancellor Kent "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 cautiously touched by the hand of innovation."

1 Gould Plead. ch. 1,2; Burnham v. Ross, 47 Me. 459. And see Chitty Plead. 235; Cal. Code Civ. Proc. 420.

2 Desnoyer v. Hereux, 1 Minn. 19.

3 Read v. Brookman, 3 Term Rep. 159.

4 Buddington v. Davis, 6 How. Pr. 401. And see Hotham v. East India Co. 1 Doug. 278; Rex v. Horne, Cowp. 682.

5 Buddington v. Davis, 6 How. Pr. 401. And see Kewaunee County v. Decker, 30 Wis. 624; Cooper v. Laudon, 102 Mass. 60; Parseley v. Nicholson, 65 N. C. 207; Oates v. Gray, 66 N. C. 442. But compare Moore v. Edmiston, 70 N. C. 510.

6 1 Chitty Plead. 235; Maguire v. Tyler, 47 Mo. 115; Pier v. Heinrichoffen, 52 Mo. 333; Lubert v. Chaviteau, 3 Cal. 458; 53 Am. Dec. 415; Parseley v. Nicholson, 65 N. C. 210.

7 Bayard v. Malcolm, 1 Johns. 453, 471. And see McFaul v. Ramsey, 20 How. 524, 525.

23. Pleading at common law. At common law, the pleadings in a civil action commence with the declaration or count, which is a statement, in legal form, of the facts constituting the plaintiff's cause of action.1 The declaration is regularly succeeded by the defendant's plea or answer, which must be made within a reasonable time, or judgment will otherwise go against him by default." The regular parts of the pleadings which follow are, the plaintiff's answer to the plea, called the replication, to which the defendant may put in an answer called a rejoinder; the plaintiff may answer the rejoinder by a surrejoinder, upon which the defendant may put in a rebutter, and the plaintiff may answer him by a surrebutter.3 A demurrer may be taken by either party, and to any part of the pleadings, until issue joined; and its office is to deny the legal sufficiency of the allegations demurred to.5 The order

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of pleading is held to be a part of the common law, and does not depend upon a mere rule or rules of court. And the word "pleadings" includes the declaration as well as the plea filed.' In pleading, facts only are to be stated, and not arguments, or inferences, or matter of law. And the certainty required is such a statement of the facts constituting the cause of action or defense as will enable them to be understood by the party who is to answer them, the jury who are to ascertain them, and by the court in pronouncing judgment. Immaterial averments may be disregarded as surplusage.10 Anciently, in England, pleadings were conducted orally by the respective parties, in open court, and the whole of the pleadings in a cause were termed the parol. But at an early period all pleadings in a civil action were required to be in writing.12

1 Co. Litt. 17 a; 3 Blackst. Com. 293; 1 Chitty Plead. 264; Gould Plead. ch. 11, 23.

2 3 Blackst. Com. 296; Gould Plead. ch. 11, 5.

3 3 Blackst. Com. 310; 1 Chitty Plead. 263; Gould Plead. ch. 11, 22 24, 26.

4 Co. Litt. 72 a; 3 Blackst. Com. 314. See Chamberlain v. Greenfield, 3 Wils. 292; Quarles v. Waldron, 20 Ala. 217.

5 3 Blackst. Com. 310; Gould Plead. ch. 9, 4; Nowlan v. Geddes, 1 East, 634. And see Henderson v. Stringer, 6 Gratt. 130; Hobson v. McArthur, 3 McLean, 241; Roberts v. White, 3 Wis. 414.

6 Fenwick v. Grimes, 5 Cranch C. C. 603.

7 Burnham v. Ross, 47 Me. 458.

8 1 Chitty Plead. 236; Fuller v. Delevan, 20 Wend. 57; Goshen Turnp. Co. v. Sears, 7 Conn. 92; Clark v. Lineberger, 44 Ind. 223; Rex v. Horne, Cowp. 684.

9 Rex v. Horne, Cowp. 682; Bristow v. Wright, Doug. 666; Hester v. McNeille, 6 Phila. 263; Posey v. Hair, 12 Ala. 567 Chapman v. Weaver, 19 Ala. 626; Adams v. Adams, 26 Ala. 272; Moore v. Smith, 19 Ala. 774; Carpenter v. Alexander, 9 Johns. 291; Murdock . Caldwell, .8 Allen, 303; Prestidge v. Pendleton, 24 Miss. 80; Watling v. Oastler, Law R. 6 Ex. 73.

10 Grubb v. Mahoning Navigation Co. 14 Pa. St. 302; Bean v. Simpson, 16 Me. 49; Hall v. Spaulding, 42 N. H. 259; Hoyt v. Seeley, 18 Conn. 353; Wyman v. Fowler, 3 McLean, 467; Chapman v. Smith, 13 Johns. 80; Lyons v. Merrick, 105 Mass. 77; Wigley v. Jones, 5 East, 444.

11 3 Blackst. Com. 300; Gould Plead. ch. 1, ? 1.

12 Gould Plead. ch. 1, 1; 1 Spence Eq. Juris. 231, 232.

24. Pleading in equity.-Courts of equity look to substance rather than to form, and rules of pleading in equity are not governed by the same technicality, as to matters of form, that control proceedings at common law. But the substance of the rules is the same in each court, and the same strictness is required in equity pleading, as to matter of substance, as is required in pleading at common law. Certainty in pleadings is required as well in equity as in law.3 So, pleadings in equity should consist of averments or allegations of fact, and not of inference or argument. The complainant's title should be stated with sufficient certainty and clearness to enable the court to see plainly that he has such a right as warrants its interference, and the defendant to be distinctly informed of the nature of the case which he is called upon to defend.5 Generally speaking, pleadings in equity consist of the formal, written allegations or statements of the respective parties on the record to maintain the suit, or to defeat it. The. party seeking relief commences his suit by filing in the court a petition, called a bill in equity, setting forth the material facts of his case, and concluding with a prayer for the appropriate relief. The defendant may put in a deinurrer to the whole or a part of the bill; he may, in a proper case, defend by way of plea,9 or may renounce all claim to the subject of the demand made by the bill, which mode of defense is known as a disclaimer.10 If he fails to protect himself in either of these modes, he must answer to the bill." And as a general rule, where a defendant submits to answer, he must answer fully.12 He is bound to give a full and sufficient disclosure to the questions put to him by the plaintiff's bill.13 The same degree of accuracy is not required to be observed in an answer as in a bill,1 and it can be excepted to for insufficiency only where some