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15 prior to the commencement of the action. This subject having been so simplified in modern pleadings and practice, it is not necessary to follow it through all the distinctions which formerly prevailed. But remarking that the general rules already laid down should be observed in all cases, the student is referred to the common law treatises for an examination of the more subtle rules upon this subject, many of which exist more as matter of history than of practical utility. For it may well be said that, in modern practice, when these strict rules are once relaxed, their rigid observance seems no longer of much consequence, and little harm seems to result from their nonobservance.

§21. Averments must be made with reference to place. It is another general rule in pleading, that the place of every traversable fact stated in the pleading must be distinctly alleged, or that some certain place must be alleged for every such fact; and this is done by designating the particular city, town, village, or other locality. The ancient reason for this rule was, that the jury tried the case from their own personal knowledge of the facts, and, after the introduction of witnesses, the jury were still brought from the vicinity, and it was, therefore, necessary to know the precise place where the facts arose upon which the cause of action or defense was based, with a view to the selection of the jury.' But this reason has long since ceased; still, it is proper, for the sake of certainty and order in pleading, to continue the general rule. But the subject of venue, as applicable to the relation of the place where the facts upon which the cause of action is based to the place of trial, is so simplified by the code that it is not deemed necessary to say more here; the general treatment of the subject being more appropriate in a subsequent chapter, where the provisions of the code of procedure will be examined. But like the subject of certainty as to time, but little importance attaches to the allegation of place, except in cases where it is necessary to show the jurisdiction of the court.

22. Facts, and not evidence, should be pleaded. It has already been observed that, in pleading, the facts which are the basis of the action or defense, and not the evidence by which they are to be proved, should be stated; and this is generally true,

1Gould on Pl. ch. 3, § 102; 1 Chit. on Pl. 280–281 (16 Am. ed.).

under any system; and where the pleader states the evidence, and not the facts, the pleading will generally be bad.

§ 23. Allegations not expressly denied are admitted by adverse party. Each party tacitly admits all such traversable allegations on the opposite side as he does not deny, and whatever has been admitted on both sides in the pleadings cannot be contradicted, either in the subsequent pleadings or even by the verdict. $24. Pleading construed most strongly against the pleader. Each party's pleading is, as a general rule, to be taken most strongly against himself and most favorably toward his adversary.1 But under the code, the court is required to give a liberal construction to the allegations of the parties, with a view to substantial justice between them.2

$25. Surplusage, etc., do not vitiate pleading. Surplusage, tautology or redundant matter, do not vitiate a pleading, either under the old system or the new, even in point of form; the maxim being utile per inutile non vitiatur. But the surplusage or irrelevant or redundant matter may, under the code, be rejected upon motion.4

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$26. Repugnancy, what. Repugnancy is a fault in pleading, upon the principle that the different parts of a pleading, if repugnant to each other, neutralize each other. But ordinarily, unless the repugnancy be in a material point, the fault could only be reached, at the common law, by special demurrer, and is only the ground of a motion under the new system. But if the repugnancy in a material point is so great that, upon a fair construction. of the pleading, it does not contain a good cause of action or defense, it will be held ill on general demurrer.5

$27. Where form and legal effect differ. Rule changed by the code. Under the former practice, it was a rule in pleading, that where the form and legal effect of a written instrument relied on in pleading differed, the same must be pleaded according to the legal effect; but under the code, in all cases where the writing is the foundation of the action, the instrument being made a part on Pl. 252, 253 (16 Am. ed.).

'Gould on Pl. ch. 3, § 169; 1 Chitty

on Pl. 261 (16 Am. ed.).

o2 R. S. (1876) 79, §90; Dickensheets v. Kaufman, 28 Ind. 251.

42 R. S. (1876) 72, § 77; Willett v. Porter et al. 42 Ind. 250.

Stephen on Pl. 377; 1 Chitty on Pl.

3 Gould on Pl. ch. 3, § 170; 1 Chit. 254, 255 (16 Am. ed.).

of the pleading, the legal effect is referred to the court, as it always might be at the common law, by setting it out in hæc verba, and the rule is now of but little significance, and can only apply to written instruments pleaded collaterally.

$28. Immaterial and impertinent averments. The distinctions between immaterial and impertinent averments, and the technical rules requiring, in certain cases, that proof of the former shall be made; or, in other words, the proposition that immaterial averments may become material by the mode of pleading them, seems to be so far modified by the code as to render it, in the main, unimportant; and at all events, it were better to consider this subject in a subsequent chapter.

$29. Averment on one side cures omission on the other. If of the parties expressly aver or confess a material fact before omitted on the other side, the omission is thereby cured.1

any

$30. Neither party need aver more than is necessary to constitute a prima facie cause of action or defense. In general it is unnecessary for either party to allege more than will constitute, prima facie, a sufficient cause of action or defense. But in dilatory pleas, and in pleading estoppels, there may be said to be an exception. It is therefore, in general, unnecessary for a party to deny or avoid by anticipation, all or any of the possible facts which might furnish sufficient answers in law to his allegations.2

$31. Plaintiff may not anticipate and controvert defense, even in cases formerly cognizable in equity. In pleading in equity, it is admissible in the bill to make allegations anticipating the probable defense, foreshadowing it and negativing it in advance. But the object of, this somewhat illogical method is to obtain the answer of the defendant on oath, to be used as evidence. But as the pleadings under the present system are not verified, and cannot be used as evidence, and as the common law rules generally are followed, this method of pleading is no longer admissible, even in cases formerly cognizable in courts of equity; and if either party makes allegations in his pleadings, whether for the purpose of gaining some advantage, or from want of artistic skill, such

I Watkins v. Gregory, 6 Blkf. 115, note 1; 1 Chit. Pl. 710 (16 Am. ed.). VOL. I.-2

Gould on Pl. ch. 3, sec. 193 and note 29; 1 Chit. on Pl. 245 (16 Am. ed.).

allegations will be treated as surplusage, and will be rejected by

the court on motion.

§ 32. In pleading under the code, the plaintiff must aver a breach, nonpayment, etc. Notwithstanding the rule just stated, it is necessary, in declaring upon a contract, to aver that it has not been performed; and in an action upon a money-demand on contract,under the code, the complaint must contain an averment that the demand remains unpaid.1 These allegations are not in anticipation, but, as will appear hereafter, are treated as necessary to show a cause of action.

$33. Of new matter. All facts alleged in pleading, which go in avoidance of what is before pleaded on the opposite side, are called new matter. But as, under the present system, there is no necessity of formal conclusions, the learning upon the distinction between concluding with a verification and to the country, is obsolete.

834. Of departure. Another general rule of pleading applicable to both systems is, that the several pleadings of each party must be consistent and must support each other; thus at the common law, the replication must support the declaration, and the rejoinder the plea, etc. As under the code the defendant has but one pleading and the plaintiff but two, there can be no departure excepting in a reply, and as the discussion of the subject is quite as appropriate to the consideration of the reply, we need only say, a departure is the abandonment of the ground of action upon which the former pleading is based, and the assumption of a different ground of action or defense, and the further discussion of the subject is postponed to a subsequent chapter.

1 Green v. Louthain, 49 Ind. 139, and cases cited.

* Gould on Pl. ch. 3, § 195.
Post, ch. V, § 9.

CHAPTER III.

OF THE PLEADINGS IN A CIVIL ACTION.

§1. Several pleadings under the code.

2. The complaint; requisites of, under the code.

3. Several causes of action.

4. General requisites of the complaint.

5. Complaint must show a present right of action in the plaintiff.

6. The omission of any material averment renders the complaint wholly

defective.

7. Performance of condition precedent must be averred.

8. General averment of performance of condition precedent sufficient.

9. Action for libel and slander.

10. Rule as to averring performance of condition subsequent, changed by the code.

11. Where a pleading is founded upon a written instrument, the original or a copy must be filed.

12. The effect of a change in the system in declaring upon a penal bond.

13. How a private statute is pleaded.

14. How the judgment of an inferior court pleaded.

15. Application of the rules concerning certainty to the complaint.

16. Rule in a complaint upon a contract.

17. Rule in a complaint upon a written instrument.

18. Effect of certain expressions in the complaint.

19. Averments in complaints in actions for the possession of real estate.

20. Averments in complaints for the possession of personal property.

21. Averments in complaints for injury to lands.

22. Rules when the facts are peculiarly within the knowledge of the adverse party.

23. Common law rules as to setting out written instruments changed by the

code.

24. Complaint good where it shows plaintiff entitled to any relief.

§1. Several pleadings under the code. The code of civil procedure provides that the only pleadings shall be the complaint of the plaintiff; which answers to the declaration at the common law, and the bill in the chancery practice; the answer of the defendant, which corresponds with the plea of the common law, but supplies the place of plea and answer both, in cases where a suit

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