no unliquidated demand, or if part of the demand be due on specialty, debt may be preferable. So, in an action against the assignees of a bankrupt for rent, if it be doubtful whether they have accepted the lease, although they have taken possession, it is advisable to declare in debt on the lease, and add a count in debt for use and occupation. So debt on a life policy, with a count for money had and received, may be preferable to covenant; because, under the common count, the premium may in some cases be claimed. And as debt and detinue may be joined (2), the declaration should be in those forms of action, where the defendant detains the plaintiff's goods, and also owes him a debt.* OF ELEC- ACTIONS. [ *210 ] Fifthly, By a judicious choice of the remedy, the defendant may be 5thly. The frequently precluded from availing himself of a defence which he might defence. otherwise establish. Thus in assumpsit against a person, who has been a bankrupt for money had and received by him before his bankruptcy, however tortiously, his certificate would be a sufficient bar, but by declaring in case or trover, where the money was received tortiously, &c. he will be deprived of such defence (a) (1). And where goods have been sold by a person in contemplation of bankruptcy by way of fraudulent preference to a creditor, the remedy by the assignee should be trover, and not assumpsit as for goods sold and delivered; because, in the latter form of action, the defendant might avail himself of the debt from the bankrupt as a set-off (b). And in cases of fraud, the statute of limitations may not begin to run till the fraud is discovered, and therefore it would be sometimes advisable to sue for the fraud, and waive the action of assumpsit. Thus, where the defendant was guilty of a fraud in not taking a sufficient security on his investing plaintiff's money, the plaintiff might waive the fraud, and sue in assumpsit for not procuring sufficient security; but if it be apprehended that the defendant would in such action of assumpsit establish a defence under the statute of limitations, it would be better to declare in case for the fraud, as the statute might then only run from the time the fraud was discovered (c). The election of the form of action was also frequently material, in order to compel the defendant either to take issue upon some particular allegation in the declaration, instead of putting the plaintiff to prove the whole of his case, or to compel the defendant to state his ground of defence specially (d). Thus, in covenant for rent, the defendant must plead to some particular allegation, and there is no general issue; but in debt on a lease he might have pleaded nil debet, and thereby compelled the plaintiff to prove the whole of his declaration (e). So trespass was in general preferable to case, because in the latter, under the general issue, the defendant might not only dispute the plaintiff's statement of his cause of action, but also give in evidence most matters of defence, but which he must have pleaded spe (z) Ante, 199, 500. (a) 6 T. R. 695; 1 Marsh. 184; ante, 144. (b) 4 T. R. 211; 2 Hen. Bla. 135; ante, When not, see 10 East, 378, 418. 141. (c) 4 Moore, 502; 2 B. & B. 73, S. C.; see also 3 B. & A: 288, 626; 2 B. & C. (1) But the plaintiff cannot by declaring specially, ex contractu, when he may recover his demand under a general count, deprive the defendant of his set-off. Downer v. Eggleston, 15 Wend. 51. ACTIONS. OF ELEC- cially in trespass (f); and detinue was in some cases preferable to trover, TION OF in order to compel the defendant to plead his lien specially (g). But the general pleading rules of Hil. Term, 4 W. 4, requiring a special plea, in most cases have put an end to many of the former grounds of preference. 6thly. The venue. Sixthly, In some cases there may be two or more actions in effect for [211] the same injury, the one local, and the other transitory. Thus, "debt for rent, by the assignee or devisee of the lessor against the lessee, is local, and must be laid in the county where the estate lies (h); but in covenant, at the suit of the same parties, upon an express covenant for the payment of rent, &c. the venue is transitory (i); and consequently the latter form of action should be adopted, where it may be advisable to try the cause out of the county where the estate is situate. 7thly. The evidence. Sthly. Seventhly, The evidence must also be attended to in the election of actions. Thus, it is frequently more convenient that the action should be trespass than case, because if it be laid in trespass, no nice points can arise upon the evidence, by which the plaintiff may be defeated upon the form of the action, as there may in many instances, if case be brought (k). And here we may again allude to the advantage of using trespass by the tenant, rather than case by the reversioner, in the case of injury to land (1). And very often the form of action, by driving the defendant to plead more specially, may narrow the plaintiff's evidence (m). Eighthly, In actions in form ex contractu, the plaintiff is in general entitled to full costs, though he recover less than 40s. damages, it having been decided that the 22 & 23 Car. 2, c. 9, does not extend to actions of assumpsit, debt, detinue, or covenant (n); and therefore it is not in general material, so far as respects the costs, which of these forms of action be adopted. But in trespass for injuries to the person, or to real property, if the plaintiff recovers less than 40s. damages, he is not entitled to more costs than damages; and therefore, for such injuries, when practicable, it is frequently advisable to declare in case or trover; in which full costs are usually recoverable (o) (1). So an action on the case was frequently preferable to an action of trespass against several defendants, because in trespass, if one defendant was acquitted, he might obtain his costs, but which he was not entitled to in an action on the case (p). And as no fine was paid upon issuing an original writ in covenant, that action was on that account in some cases preferable to debt. The 3 & 4 W. 4, c. 42, s. 32, enabling the judge to give an acquitted defendant his costs in every form of action, and the 2 W. 4, c. 39, abolishing the use of an original writ in personal actions, have put an end to the last two grounds of preference. (f) Ante, 144; post, tit. Pleas. (g) Ante, 124. (n) Tidd, 9th edit. 963. (0) 6 T. R. 129, 130; Tidd, 9th edit. 963. (h) 1 Saund. 238, 241; Sir W. Jones, 53. The judge may, in the latter actions, certify (i) Id. ibid. (k) 3 East, 600. (1) Ante, 208. (m) Ante, 210. to take away costs; but this power is not often exercised. (p) See Tidd, 9th edit. 986. (1) See 1 Met. & Perk. Dig. Tit. Costs, ch. 4. p. 600, et seq. TION OF ACTIONS. Ninthly, The action of debt is frequently preferable to assumpsit *or OF ELECcovenant, because the judgment in debt by nil dicit, &c. is in general final, and execution may be issued immediately without the expense and delay 9thly. of a writ of inquiry, which is usually necessary in assumpsit or covenant, Judgment in the case of judgment by default (9); and it is better to proceed in debt and execuon an award than on the arbitration bond, because in case of judgment by tion. default in an action on the latter, a writ of inquiry is necessary, under the 8 and 9 W. 3, c. 11 (r) (1). Replevin or detinue is preferable to trover, when it is important to obtain the goods themselves (s). election. The circumstance of a party having elected one of several remedies by Effect of 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, provided 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 verdict; 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). (2) Tidd, 9th edit. 573. But in many cases the writ of inquiry is, it seems, necessary even in debt; as in debt for use and occupation, for not setting out tithes, or for foreign money, 5 B. & Ald. 885; Tidd, 9th edit. 573. Sed quære. (7) Post, vol. ii. (s) Ante, 142, 189; 2 Stark. 288. (t) 1 Salk 248; 1 Ld. Raym. 719; 2 Chit. Rep. 301; 1 B. & A. 157; 5 Moor, 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. (1) By the statute of the State of New York, sess. 24, c. 25, s. 2, no writ of error "brought to reverse any judgment given in any personal action," is a stay of execution, unless bail in error be put in. 2 Rev. Stat. 595, s. 27, 28. DEFINITION. 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 in (a) I forbear, in this practical treatise, to observe upon the origin, antiquity, and history of pleading, or to notice the many observations 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. Appendix, xiv. n. (38), and the recent third (1) " 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, C. J., 1 Johns. 471. As to the history of pleading, vide 2 Reeve's Hist. E. L. 264, 267, 330, 344, 349; 3 Reeve's Hist. E. L. 59, 61, 423, 443, 461, 469. NITION. jury or crime, that the defendant may know what injury or crime it is THE DEFIwhich he is called upon to answer, that the jury may appear to be warranted in their conclusion of guilty' or not guilty' upon the premises delivered to them, 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 certainty 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. 1. THE ESSARY TO In general, whatever circumstances are necessary to constitute the cause of complaint or the ground of defence, must be stated in the plead- FACTS NECings, and all beyond is surplusage (ƒ) (1); facts only are to be stated, and not arguments or inferences, or matter of law (g) (2), in which respect the pleadings 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 notice, The Courts will ex officio take notice when the King came to the 1st. Facts throne (i), and of the king's proclamations of war, &c. (k), and of the ar- the Court ticles of war, which are an emanation from the crown by virtue of acts will ex of of parliament (1); and consequently those matters need not be alleged in ficio take pleading. So the courts are also bound to take notice of all the privi- should not leges of the crown (m). But private Orders of Council are not considered be stated. 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 (0); nor will the Courts take judicial notice of an existing war between foreign states, or a recently de (k) 1 Ld. Raym. 282; but see 2 Camp. (1) 4 B. & C. 304; 6 D. & R. 424, S. C. (1) Vide Tucker v. Randall, 2 Mass. 283; Drowne v. Stimpson, 2 Mass. 441, 444; Tracy . Dakin, 7 Johns. 75. (2) Goshen Turnpike Co. v. Sears, 7 Con. 92; Hurst v. Purvis, 5 Blackf. 557; Rakes, v. Pope, 7 Alabama, 161; Weed . Hill, 2 Miles, 122; Thomas v. Van Doren, 6 Missouri, 201; Fuller v. Delavan, 20 Wendell, 57. |