quently embarrassed by a too great regard to technical precedent, established in the early history of the systems, rather in contempt of than in sympathy with their spirit.

§ 11. General outline of the plan of the treatise. The object of the present treatise shall be, 1. To point out some of the qualities and note some of the rules of pleading applicable alike to the old and the new systems; at the same time, noticing some of the instances in which changes have been made by the code, and discussing the same so far as is practicable. 2. Having ascertained and pointed out the proper parties to a civil action, to treat of the several steps in pleading under the code, and of the requisites of each of the several pleadings in the successive steps. 3. To illustrate, together, the rules and principles of pleading and practice under the code by following out the progress of a civil action through all its stages, from the filing of the complaint till the rendition of the final judgment; and then the enforcement of the same by final process; noting in the course of the illustration in detail, some of those more specific rules of pleading which are peculiar to the various stages of the action and which are not the subject of general definition or explanation, and to follow the same by some explanation of special procedure under the code. 4. To note the steps necessary to prepare a case for appeal to the supreme court, and give an outline of the course of procedure therein. And 5. To give a set of forms of pleadings, record entries and other formal papers to be used in practice under the code.

CHAPTER II.

OF THE GENERAL RULES OF PLEADING.

§1. The blending of law and equity pleadings makes general rules difficult to settle.

2. Additional reasons for the difficulty in adapting the code pleading to the

two systems.

3. The first two indispensable rules of pleading.

4. Every substantial fact necessary to the maintenance of the action must be

alleged.

5. Of what good pleading consists.

6. The gist of the action.

7. The inducement.

8. Matter of aggravation.

9. Matter of inducement or aggravation need not be answered.

10.

11.

Facts as they exist only need be stated.

Fictions and conclusions of law need not be stated.

12. Neither inferences of law nor evidence should be stated.

13. Foreign laws must be pleaded when relied on.

14. Pleadings must state facts positively.

15. Certainty in pleading.

16. Degrees of certainty in pleading.

17. Reasons for certainty in pleading.

18. Subjects to which certainty applies, firms sue by individual names and cor

porations by corporate name.

19. Where name once applied is repeated, there should be words of reference. 20. Averments should be made with time and place.

21. Averments must be made with reference to place.

22. Facts, and not evidence, should be pleaded.

23. Allegations not expressly denied are admitted by adverse party.

24. Pleading construed most strongly against the pleader.

25. Surplusage, etc., do not vitiate pleading.

26. Repugnancy, what.

27. Where form and legal effect differ. Rule changed by the code.

28. Immaterial and impertinent averments.

29.

Averment on one side cures omission on the other.

30. Neither party need aver more than is necessary to constitute a prima facie

cause of action or defense.

31. Plaintiff may not anticipate and controvert defense, even in cases formerly

cognizable in equity.

32. In pleading under the code, the plaintiff must aver a breach, nonpay

ment, etc.

33. Of new matter.

34. Of departure.

§1. The blending of law and equity pleadings makes general rules difficult to settle. It is proper to observe, in the outset, that as our system of pleading and practice under the code is the blending of two systems, diverse both in their origin and in their methods, the one derived from the common law, with its terse, logical mode of pleading, terminating in a single issue of law to be tried by the court, or of fact to be tried by the jury the other, derived from the civil and canon laws and perfected into an independent system in England, and thence coming to us,' with its more ponderous, formal and complicated forms and modes of pleading, frequently leading to numerous issues, both of law and fact, in practice generally all determined at the same time by the court, and always without a jury, the pleadings answering the double purpose of pleadings and evidence; it is difficult to lay down general rules of pleading applicable to all cases.

§2. Additional reasons for the difficulty in adapting the code pleading to the two systems. This further observation might not be out of place, that while under the code many, and indeed most of the rules of the chancery pleading and practice have been dispensed with, yet it is impracticable to adapt the closely logical and terse rules and forms of pleading at the common law, to cases where, before the change, the remedy was by bill in chancery and not by action at law. This proposition is too obvious to need elaboration. In the latter case, the pleading consists in the statement of the right, the wrong, the injury, and damages as a logical sequence on the part of the complaining party, and the tender of an issue of law, by demurrer, or of fact, by denial or confession and avoidance, on the part of the defendant, and so on by the successive steps till a single issue is formed. While in the former, though the right, the wrong and the injury are connected in the same logical order, the facts out of which the rights grow are usually, if not always, more complicated and admit of, if indeed they do not require, a more lucid style of statement in pleading. Proceedings in chancery in this country being derived from the mother country, our forms of pleading and procedure in chancery were modeled after hers. The ancient

'Story's Eq. Pl., § 14, and notes.

court of chancery in England was rather a court for the mitigation of the rigor of the common law, and for granting relief against its hardships, than for the adjudication of cases arising in the ordinary course of human transactions. The forms of pleading there adopted and still followed partake of the peculiarities of the court in its early history, and consist in setting forth grievances and praying relief on the one hand, and denying the allegations or confessing and avoiding them on the other, and hence, a more extended and elaborate statement of these grievances was adopted than is tolerated in the logical forms of the common law pleading. Notwithstanding these differences, it is manifest that the framers of the code intended to discard them and to make the one form of action, so far as practicable, conform to the substantial rules of pleading at the common law, discarding only unnecessary formalities, as will appear in the progress of this treatise.

§3. The first two indispensable rules of pleading. The first two indispensable rules of pleading laid down in the standard treatises on pleading are,' 1. That the matter pleaded (the facts alleged) be sufficient in law to avail the party who pleads it. 2. That it be deduced and alleged according to the forms of law. The first of these elementary rules prevails with all the force which ever accompanied it under any system of pleading; indeed it is an axiom of universal application in pleading under any system. The second proposition is very much modified by the code. Tested by the provisions of the code itself, and by the models of pleading it furnishes, its intention certainly was to dispense with those technical or artificial modes of detailing the subject matter pleaded, required under the common law rules. But still, even under this inartificial system, some regard must be had to form, else there will be surely no such thing as certainty, uniformity or regularity in pleading. But the regard which is to be had to form is to be determined by the code and the decisions under it; for some things merely formal, which would be quite necessary at the common law, are dispensed with by the code, and some formal averments are required by the code which were not before material.

1Gould on Pl., 47, ch. 3, § 1. 1 Chitty on Pl., 236 (16 Am. ed.). Id. 264.

§ 4. Every substantial fact necessary to the maintenance of the action must be alleged. It is essential to all good pleading that the party offering new matter allege every substantial fact which is necessary in law to the maintenance of his action or defense. But that which already sufficiently appears in the pleadings of either party without a formal allegation need not be averred. And upon a like principle, circumstances however material, if necessarily implied in any fact expressly stated, need not themselves be substantially alleged.'

$5. Of what good pleading consists. In good pleading, all facts alleged consist, 1. Of the gist or substance of the complaint or defense, or, 2. Of the inducements, or, 3. Of matter of aggravation. For whatever else is stated in any part of the pleadings is but surplusage,' and too much stress cannot be placed upon this last principle; for no fault in code pleading is more prevalent than that of redundant allegations, serving to incumber the record, produce confusion, and hide rather than develop the real issue intended to be produced.

§6. The gist of the action. The gist of the action or defense is the essential ground or principal subject matter of it.

$7. The inducement. Inducement is that which is merely introductory or explanatory of the essential ground or substance of the complaint or defense.

8. Matter of aggravation. Matter of aggravation is that which in actions for forcible injuries is intended to show the circumstances of enormity under which the principal wrong was committed.'

89. Matter of inducement or aggravation need not be answered. The gist of the action or defense being properly answered, neither matter of inducement nor aggravation need be traversed nor avoided.

§ 10. Facts as they exist only need be stated. It is necessary in pleading under the code to state nothing but facts, as they actually exist. It is not necessary to state the law, as the courts take judicial knowledge of that without its being pleaded.

1Gould on Pl., ch. 3, §§ 1-6; 1 Chitty on Pl., 244 (16 Am. ed.).

'Gould on Pl., ch. 3, § 7; 1 Chitty on Pl., 236 (16 Am. ed.). Gould on Pl. ch. 3, §§ 9, 10, 11.