CHAPTER XIV.

2. THE STATEMENT, CONTINUED.

What facts must be stated.

Section 220. The Class of Facts referred to.

RULE I. The Complaint must show Title-A common-law Rule as well.

221. Definition of Title-To what applied.

222. 1. Title to real Property; and, first, in real Actions.

223. Continued-Statutory Action in Missouri, Ohio, Kansas and Ne

braska.

224. Continued-Statutory Action in New York.

225. Continued-Statutory Action in Indiana, Wisconsin, Iowa, Oregon and Arkansas.

226. Continued-Kentucky, Connecticut, California, North Carolina, South Carolina, Nevada and Minnesota.

227. Title to the Realty in other Actions.

228. Title in Actions founded on Leases.

229. When Title need not be shown.

230. 2. Title to personal Property-General Allegation of Ownership sufficient.

231. 3. Title to Choses in Action-Non-negotiable Instruments.

232. Continued-Negotiable Paper-Striking out Indorsements.

233. Continued-Mode of alleging Title.

RULE II. In Actions on Contract, when should the Complaint show Privity.

234. Twofold Application of the Term.

234a. Privity required at Common Law.

235. Different kinds of Privity.

236. Privity between Landlord and Tenant.

237. Same-Created by Statute.

238. No Privity between Owner and adverse Holder.

239. Liability without Privity.

1. By the Law Merchant.

239a. Same. 2. In respect to non-negotiable Contracts.

240. No Privity in Torts.

241. Liability when the Promise is made to a Third Person.
242. Continued; American Rulings.

242a. Continued-The Right arises when the Promise is implied.
242b. Liability the same whether called Legal or Equitable.
242c. But one can not be made a Debtor against his Will.
243. When the Liability arises from domestic Obligations.

Section 244. When Privity dispensed with as by Estoppel.

245. The Doctrine as applied to adverse Claimants to Land.

245a. The Pleadings.

RULE III, In Action by or against a Corporation, its Legal Existence to be shown.

246. The Rule imperative except when.

247. The Foundation of the Rule-Common-law Rule.

248. How shown in Common-law Practice.

249. This Practice not to be followed.

250. The New York Rule.

251. The Rule in certain other States.

252. Effect of acknowledging the Incorporation.

253. Language of the Courts upon this Question.
254. Welland Canal Co. v. Hathaway-Its Points.
255.

Continued-The Points examined.

256. As to Defendant's Interest in having Plaintiff sue by his true

Name.

257. Whether called Estoppel or Admission, the Pleading the same. 258. Otherwise, the Averment necessary.

259. Conclusions when corporate Existence must be averred-Remedy

for not so alleging.

260. Rule as to Corporations Defendant.

RULE IV. When Persons sue or are sued in a representative Capacity, the Authority or Relation must be shown.

262. 1. Trustees of an express Trust, and Persons to whom a Promise is made for the benefit of another, may generally sue in their own Name.

263. 2. Assignees in Bankruptcy or Insolvency, and Receivers ap

pointed by the Court.

264. 3. In Actions by Executors and Administrators their Relation or Authority must be shown.

265. 4. Partnership Demands and Liabilities.

266. 5. In ordinary joint Rights and Obligations.

267. 6. Husbands, Committees, etc.

267a. Consent of Court-When necessary-Must be alleged.

RULE V. In Actions upon Contract, Consideration must be shown.

268. The Rule and Exceptions at Common Law.

269. Exceptions by Statute.

270. Insufficient Consideration.

271. Consideration frivolous and impossible.

272. Illegality of Consideration.

273. Consideration immoral, or against public Policy.

277. Why is an executed Consideration insufficient?
278. In Contracts executed by the Statute of Uses.

RULE VI. In seeking Relief other than by a Judgment for Money or for specific Property, the Pleading should show that such Judgment cannot be obtained, or that it will not afford adequate Relief.

280. An Equity Rule in new Words.

281. Application of the Rule.

281a. In Extraordinary Remedies.

When they are material, Time and Place must be stated, and

RULE VII.

282.

As to Time.

283.

truly.

When is Time material?

284. The Rule as applied to Place.

285. Statutory Provisions in regard to Actions affecting the Realty

Local and transitory Actions.

286. Same in regard to other Actions.

287. Contracts-When enforced according to foreign Law.

RULE VIII. When Malice is material it should be alleged

287a. In malicious Prosecution.

287b. In Libel and Slander.

RULE IX. Every collateral Fact, necessary to give Effect to the Main Charge should be stated.

287c. Instances.

§ 220. The Class of Facts referred to.

I shall not attempt to indicate the general facts to be stated in order to constitute a cause of action; to do so would involve the whole law of liability. My object is to call attention to a few things which must be made to appear, in addition to the specific injury, or the agreement and the breach complained of, before a liability is shown. Though they surround, as it were, and aid, the main charge are sometimes but matter of inducement-yet they are essential to the cause of action. The rules to be considered in this chapter differ in this respect from those which show what need not be stated, and from those pertaining to the manner of statement. The non-observance of the latter is an error, to be cor

rected; but, without correction, the error is not fatal-a cause of action may still be shown. But the omission of a material averment leaves the plaintiff without a basis for his proceeding, and perhaps, after an apparent success, with a worthless verdict or judgment.

RULE I The Complaint or Petition must show Title-A common-law Rule as well.

221. Definition of Title-To what applied.

Mr. Stephen says: "When, in pleading, any right or authority is set up in respect of property, real or personal, some title in that property must be alleged in the party, or in some other person from whom he derives his authority. So, if a person be charged with any liability in respect of property, real or personal, his title to that property must be alleged." 1

Title is spoken of in the law of real property as the means by which one acquires his estate-as, by descent or by purchase-and, in pleading, the term is sometimes used in the more comprehensive sense of right of action; 2 but it is here considered in the sense of ownership or interest in the property or contract in respect to which the suit is brought. The rule only applies to causes where the plaintiff's right depends upon such interest; and I will consider, first, title to real property; second, title to personal property; and, third, title to choses in action.

§ 222. Title to real Property; and, first, in real Actions.

In the old writ of right the land was described as the inheritance of the plaintiff. In the common-law action of ejectment, the pleading does not show the title of the plaintiff's lessor, who is the real plaintiff, and this arises from the form of the action. It is not necessary to allege the title of a lessor as between him and his lessee, for the latter is estopped from denying it; but the fictitious title of the lessee, the nominal plaintiff, is alleged to come through

a demise, and this title is expressly acknowledged by the tenant in possession when admitted to defend in place of the casual ejector. Thus, the real title of the real plaintiff does not appear, but that of the nominal plaintiff, although fictitious, is abundantly shown. The form of the action is trespass, and if damages for the ouster were alone sought, prior possession would suffice; but the plaintiff seeks to be restored to his term as well, hence it must be described.

In statutory actions for the recovery of real property, if the pleadings are not controlled by the statute, but are governed by general principles, the plaintiff should show his title —that is, should state the facts that give him the right of possession. If he has such a right, it is because of some fact-as, that he is the owner in fee, or of a term, or of some other interest carrying the possession; or that he had prior possession, and was unlawfully dispossessed. In some of the states the statute is silent as to the pleadings; in some it recognizes the duty of thus showing title, or expressly requires it; while in others the spirit of the fictitious action still controls the proceeding a uniform formula is permitted without reference to the facts of each case; and the obligation to show title, and the true one, is ignored.

§ 223. Continued-Statutory Action in Missouri, Ohio, Kansas, and Nebraska.

In Missouri it is sufficient to allege that the plaintiff "was entitled to the possession of the premises," etc.; in Ohio and Nebraska,

day of

3 [The following would be a sufficient form of averment of title: "That the plaintiff was, on the 18, and still is, the owner in fee and actually seized of the following described premises, to wit:** *.”] 4 Wag. St. 559, § 6 (Rev. St. 1879, § 2245). In the St. Louis Circuit the defect in the pleading is sought to be remedied by the following rule of court: "In all actions of ejectment, each party shall, on or before the day of trial, make out and deliver to the judge, at 'special term,' an abstract of his title; which abstract shall state the derivation of the title, parties to each deed, dates of execution, acknowledgment, and recording, and the tract

$ Code Civ. Proc. Ohio, § 558 (Rev. St. 1880, § 5781).

Code Civ. Proc. Neb. § 626.