§ 11. Fictions and conclusions of law need not be stated. At the common law, it was necessary in certain classes of cases to allege not only the facts which really existed, but also certain conclusions or fictions which the law founded upon or connected with them, and which it regarded as facts, though they only existed by legal intendment. Thus in indebitatis assumpsit,1 it was necessary to allege, in pleading, an express promise; for although the action was based upon a mere indebtedness without any promise, a promise was implied by fiction or implication of law, to obviate the inconvenience of the action of debt. So in trover, it was usual to allege that the goods were lost and the defendant found them. Also in the action of ejectment, the lease, entry and ouster were all fictions. But since the code has not only abolished the distinctions between the forms of action, as well as all fictions, but has forbidden the use of the latter, the whole doctrine of fictitious pleading has become obsolete. The other rules alluded to thus far in this chapter are of as binding force under the code as before its adoption. 812. Neither inferences of law nor evidence should be stated. As has already been said, facts, and not matter of law, should be stated in pleading, avoiding the statement of either inferences of law or fact, on the one hand, or the setting out of the evidence on the other. But it is said, and perhaps the remark applies to the present as well as the former system, that for the sake of form, and for the purpose of showing the application of the facts which is intended by the pleader, even inferences of law may be stated in a pleading in some cases. Thus, in declaring upon a bill of exchange, after setting out the material facts, the pleader adds by means whereof the defendant became liable, etc. But it is never sufficient to state mere inferences of law or fact in lieu of stating the facts. So, where the act of congress provided that the property of persons engaged in inciting, aiding and assisting the late rebellion should be confiscated, and that it should be a sufficient defense to any action for the recovery thereof to show that the person suing was one of the persons described in the act, and where it was alleged, in defense to an action to enforce a judgment, in the 22 R. S. (1876) 80, § 92. 1 Gould on Pl., ch. 3, § 17, et seq. 1 Chitty on Pl., 153 (16 Am. ed.). Id. 79, § 88; Gould on Pl., ch. 3, § 15. language of the act, that the plaintiff was engaged in inciting, aiding and assisting in the rebellion, it was held, on demurrer to the answer, that the pleader should have stated the particular acts upon which the charge of inciting, aiding and assisting was based, and the answer was held bad.' So where a statute concerning highways required that the supervisor, before opening a highway through inclosed lands, should give the owner sixty days' notice, in an action against a supervisor for unlawfully pulling down the plaintiff's fence, etc., the defendant justified under an order directing the opening of a road through the plaintiff's premises, and after setting out the order, averred that "after having complied with all the provisions of the statutes in such cases made and provided," defendant proceeded to open the road, the answer was held bad because it did not aver specifically the giving of the sixty days' notice. But under the code, in declaring upon a contract not in writing, it is sufficient to state facts from which the law implies an agreement, without in terms averring the agreement. But it is better and safer to allege in addition the fact of promise, agreement or indebtedness, and support the same at the trial by proof of the facts. Private or local acts of parliament were formerly required to be pleaded, but in Indiana most acts of the legislature are made public by their terms, and when not so, are pleaded simply by reference, as will appear hereafter. 13. Foreign laws must be pleaded when relied on. When it is said that the law should not be set out or stated in pleading, the restriction is confined to the law of the state or jurisdiction. in which the court is held; for the laws of a foreign state (and the states of the union are all foreign to Indiana), whether common or statute law, whenever relied upon in an action or defense in the courts of Indiana, are treated not as matters of law, but as facts, and must be pleaded and proved as other facts are pleaded and proved. 1 Meni v. Rathbone, 21 Ind. 463; 1 Chitty on Pl. (16 Am. ed.) 540; see also Clark v. Lineberger, 44 Ind. 228; 1 Chitty on Pl. (16 Am. ed.) 256, note d. * Ruston v. Grimwood, 30 Ind. 364; Gould on Pl., 357. 3 Hamilton v. Winterowd, 43 Ind. 393; Wills v. Wills, 34 id. 106. 4 Wharton on Conflict of Laws, sec. 771; Shaw v. Wood, 8 Ind. 518; 1 Selden, 447 (Mcnroe v. Douglass). §14. Pleadings must state facts positively. As a general rule, all material facts pleaded on either side must be stated in positive and direct terms, and not argumentatively or by way of recital. This requisite is prescribed, to the end that the adverse party may take issue directly and distinctly, as well as for the sake of precision. But either of these faults was only reached by special demurrer at the common law, and can be taken advantage of under the code only by motion before issue, as will be more fully pointed out in a subsequent chapter. But the use of the scilicet and the videlicet is entirely dispensed with under the code, and the rules applicable to the use of these phrases in pleading need not be considered. And it may be further observed that the learning in relation to exceptions to the general rule requiring direct averments, and allowing them to be made by way of recital following "Whereas," being founded upon technical distinctions growing out of the construction of the general issue, a pleading wholly dispensed with under the code, is of but little value in code pleadings. And the inquisitive student is referred to the treatises upon common law pleading for a minute description of a curious distinction, in which the pleader under the code has little interest, with perhaps the single exception that in setting out that which is mere inducement, the rule still prevails that it may always be stated by way of recital. This rule arises out of the very nature of pleading itself, and is applicable alike to both systems. §15. Certainty in pleading. An indispensable requisite in all good pleading is certainty. This requisite implies that the matter pleaded must be clearly and distinctly stated, so that it may be fully understood by counsel for the adverse party and the judge, and especially (as regards the declaration or complaint) that the defendant may be enabled to plead the judgment which may be rendered, in bar of any subsequent action for the same cause. §16. Degrees of certainty in pleading. The several degrees of certainty required in pleading, as laid down by Lord Coke, and discussed and refined upon by common law writers upon pleading, have but little application in pleading under the code, if, indeed, they do not tend as much to confusion as certainty under any sys 'Gould on Pl., ch. 3, § 28 et. seq.; 1 Chitty Pl., 260 (16 Am. ed.). tem. But one or two rules which are universally applicable may be laid down without any regard to these subtle distinctions: 1. Every pleading should be sufficiently certain to show a prima facie right of action or cause of defense. 2. Every pleading which purports to constitute or contain the statement of a cause of action or affirmative defense, should be sufficiently certain clearly to identify the cause of action or defense, so that the record may show the precise point determined by the verdict and judgment, in the event of subsequent litigation concerning the same subject matter.' 2 817. Reasons for certainty in pleading. The reason as well as the degree of certainty in pleading, as stated in the code of procedure and as laid down by text-writers, are about equally impracticable. The provision of the code is, that the pleading shall be adapted to the comprehension of "a man of common understanding." But whatever view the framers of the code may have had, it is not practicable for any but educated lawyers to understand legal pleadings intelligently. And the reason given by the text-writers, under the old system, for the requisite certainty in pleading, that the adverse party, the court and the jury may understand them, is quite as impracticable. For, however intelligent may be the jury, the adverse party or the man of common understanding, they can neither of them understand pleadings unless they are lawyers. The most that intelligent jurymen can do is to apply the evidence to the issues as explained to them by the counsel and the court. But the pleadings themselves are not comprehensible by the jury. But these rules, however understood or whatever their foundation, are not materially changed by the code. §18. Subjects to which certainty applies. The certainty required in pleading relates chiefly to time, place and subject matter. For the rules as to certainty in regard to the subject matter, the reader is referred to a subsequent chapter. The parties should be described by their proper names, so as to secure identity; and where a firm consisting of several names, sues or is sued, the proper names of all the partners must appear; and this rule is not dis 1 Gould on Pl. ch. 3, § 51; Clark v. Lineberger, 44 Ind. 228; 1 Chitty on Pl. (16 Am. ed.) 256, note (d). 22 R. S. (1376) 54, § 49. 3 Gould on Pl., ch. 3, § 51. pensed with by the code. And the description of the plaintiff by the firm name is not sufficient, when the firm consists of several parties. $19. Where name once applied is repeated, there should be words of reference. Where the name of either party, having been once introduced in the pleadings, is repeated, it should be accompanied by some such term of reference as will be sure to identify the person as the one before mentioned; as "said" or "aforesaid " or the like, and where several names are introduced, other words of identity should be added, as "first aforesaid," "second aforesaid," "lastly aforesaid,"or the like. But if the identity is fairly inferable, the omission of such terms is not material, and as will appear in a subsequent section, any omission to observe these requirements will not render a pleading bad upon demurrer; and the adverse party has no remedy under the code practice but to compel an amendment. § 20. Averments should be made with time. As a general rule of pleading, in all personal actions, the time of every traversable fact should be stated. That is, every such fact should be alleged to have taken place on some particular day. But the precise day on which such a fact occurred is, in most cases, immaterial. But in pleading any written document, such as a record, a note, bill of exchange or the like, or where the fact is to be proved by written evidence, the day on which the instrument is alleged to bear date is material, and must be stated correctly, else there will be a variance, the consequences of which, under the old system, were very grave indeed. But under the code pleading, where the instrument is the foundation of the action, the original, or a copy of it, must be exhibited, as part of the pleading. And, as will appear hereafter, a variance can never produce any serious inconvenience, and is amendable, even on the trial. Notwithstanding this, however, it were better, though not indispensable, generally to observe the rule, and in all cases, the time alleged in each material and traversable allegation should be laid as of a day 'Tanner v. Swearengen, 1 Blackf. 277. Gould on Pl. ch. 3, § 63; 1 Chitty on Pl. 272-273 (16 Am. ed.). on Pl. 273 (16 Am. ed.). 42 R. S. (1876) 82, § 99; Musselman v. Musselman, 44 Ind. 106; King v. 'Gould on Pl. ch. 3, § 67; 1 Chitty Bales, id. 219. |