§ 133. Replevin. The sixth class embraces "claims to recover personal property, with or without damages, for the withholding thereof." This is known as the modernized action of replevin, and the same rule as to the application for damages holds as in the real action. 104 § 134. Claims against Trustees. The seventh class provides for a union of "claims against a trustee, by virtue of a contract or by operation of law." This class is extended in Missouri and Connecticut to actions in favor of trustees, the provision embracing claims by or against a party in some representative or fiduciary capacity, by virtue of a contract or by operation of law 105 add to the first count-"And for equitable relief pending the above action the plaintiff further represents;" or "and for a further cause of action, the plaintiff represents." The injury to the land, as by destruction of timber, is distinct from the mere dispossession and may be well called "a further cause of action." But Cole, J., in Riemer v. Johnke, 37 Wis. 258, treats the injunction against such injuries as a provisional order, proper to be made pending the action but not as springing from a cause of action itself, citing Gillett v. Treganza, 13 Wis. 472. 104 PHARIS v. CARVER, 13 B. Mon. 236. [This was an action by ordinary proceedings to recover eight hogs, joined with an action to recover $100, damages for the taking and detention of the same. The defendant demurred. The demurrer was overruled. The court said: "Claims for the recovery of specific personal property, and damages for the taking or withholding the same, may be united in the same petition or complaint."] 105 Instance of joinder. Williams v. Love, 4 Neb. 382. (226) CHAPTER X. GENERAL CONSIDERATIONS. Section 135. Definition of Pleadings. 136. Every Statement of Facts constituting a Cause of Action or a 137. The logical Formula-Illustration. § 135. Definition of Pleadings. 1 "Pleadings are the mutual allegations between the plaintiff and defendant, which at present are set down and delivered into the proper office, in writing, though formerly they were usually put in by counsel ore tenus or viva voce in court, and there minuted down by the chief clerk or prothonotary." In Chancery, pleadings from the beginning have been in writing; the first application to the court. is by bill, which is a petition addressed to the chancellor; it contains a statement of the facts upon which the petitioner relies more in detail and in less technical language than is proper in a common-law 13 Bl. Comm. 293. [In Bacon's Abridgement (title "Pleas and Pleading") it is said that "pleading, in general, signifies the allegations of parties to suits, when they are put into a proper legal form." And, again: "Pleading, in strictness, is no more than setting forth that fact which, in law, shows the justice of the demand made by the plaintiff or the defense made by the defendant." And, again, in Read v. Brookman, it is said that "pleading is the formal mode of alleging that on the record which would be the support or defense of the party on evidence." 3 Term R. 159. The pleadings are the written allegations of the parties, plaintiff and defendant, in a logical and legal form, showing the facts upon which they rely for their relief or defense, respectively. 1 Chit. Pl. 213; Robinson v. Rayley, 1 Burrows, 319; Magwire v. Tyler, 47 Mo. 115; Gould, Pl. 15. See, also, section 5058 of the Ohio Revised Statutes, which has been adopted substantially by the code states; Code Civ. Proc. Cal. § 420; Code Iowa, § 3851; Consol. St. Neb. § 4629; Rev. St. Ind. § 335; Gen. St. Kan. par. 4167.] declaration; many formulas deemed essential in the latter are altogether omitted in the former; yet, both in actions at law and in suits in equity, the pleadings are but the mutual allegations of the parties as to the facts constituting the cause of the action or the defense, “delivered into the proper office, in writing" and expressed in legal form. In the more general sense of the term, pleadings include demurrers, or formal objections to the legal sufficiency of an adverse pleading, and in this sense I shall use the term, although it is sometimes applied only to allegations and denials in respect to matters of fact. § 136. Every Statement of Facts constituting a Cause of Action or a Defense implies a Proposition of Law. No system of pleading can be devised that requires a statement of the facts that constitute the cause of action, or of facts that constitute a defense, where the statement itself does not imply a proposition of law.2 If the proposition be false [or if the statement of facts fails to involve the implied proposition of law], the pleading is radically defective, and no judgment can rest upon it [for it must be remembered that the courts do not give relief for every wrong, nor for every statement of facts upon which men differ]. Issues may be tendered, either upon the truth of the facts or upon the existence of the proposition [of law] involved. The former is called an issue of fact, the latter an issue of law, and both are tendered by denials— the issue of fact by a denial of the facts [by answer], or of some material fact stated; the issue of law by a denial in effect of the proposition of law, the proposition implied, but never stated [by a demurrer]. § 137. The logical Formula-Illustration. Every statement of facts constituting a cause of action, or a de fense, is but part of a logical formula-the minor premise, or second member of a syllogism, and the proposition of law involved is the major premise, or the first member. The latter is denied by a de murrer; the former is denied, or avoided, by an answer. 2 Gould, Pl. c. 1, § 4. |