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that it would lie on an absolute covenant to pay a sum due from another person (g). Distinctions of this kind still exist in theory, but can no longer, as we have already seen, be made use of to prevent the determination of the case on its real merits. In either of the above instances the question would now simply * be, has the plaintiff stated a good cause of action, no [* 323] matter under what form it ranges itself, entitling him to recover? (578) Covenant lies for breach of a covenant or agreement under seal. The action sounds in damages, but, like assumpsit, extends to liquidated as well as unliquidated demands, and is a concurrent remedy with the action of debt for specific sums directly and immediately payable by the covenantor to the covenantee on an absolute covenant to that effect. (579)

Trespass, the nature of which has been already amply exemplified, lies for an injury to person or property, where such injury is direct and immediately results from the application of force.

The remedy in trespass, however, is not confined to an act of positive violence, it extends to any wrongful act when force, in fact, is used, however slight it may be, or however peaceably it may be exercised, provided the injury result immediately from it. (580)

(g) See Randall v. Rigby, 4 M. & W. 130; Evans v. Jones, 5 M. & W. 295.

(578) Assumpsit will not lie where the controversy arises upon a contract under seal (North v. Nichols, 37 Conn. 375; Smith v. Smith, 45 Vt. 433), though the party has expressly promised to perform such contract. Andrews v. Montgomery, 19 Johns. 162.

(579) Generally debt lies whenever a sum certain is due to the plaintiff. How the obligation was incurred is immaterial, if the amount due is capable of being definitely ascertained. Stockwell v. United States, 13 Wall. 531; Home v. Semple, 3 McLean's C. C. 150. See, also, Lee v. Gardiner, 26 Miss. 521; Nash v. Nash, 16 Ill. 79; Snell v. Kirby, 3 Mo. 21; Schmertz v. Shreeve, 62 Penn. St. 457. Thus, it is held to be the proper form of action on a promissory note (Casey v. Barcuft, 5 Mo. 128; Bentley v. Dickson, 1 Ark. 165; Crawford v. Daigh, 2 Va. Cas. 521); on a foreign judgment or decree (Jordon v. Robinson, 15 Me. 167; Headly v. Roby, 6 Ohio, 527; Warren v. McCarthy, 25 Ill. 95); on a bond conditioned for the performance of covenants (Menkings v. Ochiltree, 5 Port. [Ala.] 395); on a recognizance to the State in a criminal proceeding (Green v. Dana, 13 Mass. 493; State v. Folsom, 26 Me. 209); on a replevin bond (Darling v. Peck, 15 Ohio, 65; Early v. Owen, 6 Munf. [Va.] 319); to recover compensation for work and labor done (Thompson v. French, 10 Yerg. [Tenn.] 452); against an executor to recover a legacy (Pettigrew v. Pettigrew, 1 Stew. [Ala.] 580); or to recover the purchase-money of lands sold under articles of agreement. Huleer v. Burke, 11 Serg. & Rawle (Penn.), 238. But debt is not the proper form of action upon a bond, unless conditioned for the payment of money only (Curle v. Pettus, 6 Mo. 497); nor will it lie upon a promise to pay in a particular kind of "money," "funds," or currency" (January v. Henry, 2 T. B. Monroe [Ky.], 58; Deberry v. Darnell, 5 Yerg. [Tenn.] 451; Dungan v. Henderlite, 21 Gratt. [Va.] 149; Bruner v. Kelso, 1 Bibb [Ky.], 487; Mattox v. Craig, 2 id. 584); nor upon a collateral promise to pay the debt of another; and this principle applies to a promise under seal. Tappen v. Campbell, 9 Yerg. (Tenn.) 436; Gregory v. Thomson, 31 N.

J. L. 166.

In New Jersey, in courts for the trial of small causes, actions arising on simple contract must be brought as actions of debt, and not otherwise. Cattin v. Payday, 2 N. J. L. 138; Riker v. Jacobus, 2 id. 328; id. 83.

Covenant is the proper action to be brought on a sealed guaranty, and it is of no consequence to the maintenance of such action whether the contract is conditional or uncondi tional, so that it is a covenant, and not a condition merely. Congdon v. Read, 7 R. I. 576.

(580) See ante, notes 9 to 12.

Case is an action for consequential injury—that is, injury arising indirectly and consequentially from the act complained of. It was long since observed (h), by way of illustrating the difference between trespass and case, that, "If a man throw a log into the highway, and in that act it hits me, I may maintain trespass, because it is an immediate wrong; but if, as it lies there, I tumble over it and receive an injury, I must bring an action upon the case." One or two instances in addition to those mentioned in preceding pages may here be given illustrating the nature and applicability of this action. Thus slander, whereby a person's character is injured, is the subject of an action on the case, and case would be the remedy for the wrongful obstruction of a watercourse, where the cause of obstruction was an erection made on the defendant's own land, so as to indirectly interfere with the* watercourse on the plain[* 324 ] tiff's land. Again, the action would be case where the defendant was sued for an injury inflicted by the careless driving of his carriage by his servant, the wrong complained of being the negligence of the person whom he employed in the course of his employment, and the injury resulting as a consequence from it. (581)

Trover is a species of action on the case, and lies for the wrongful conversion of goods (i).

Detinue lies for the specific recovery of goods wrongfully detained, and damages for their detention (k).

Replevin is an action attended with many peculiarities, which have already been treated of at length (1), we will here merely repeat that it is commonly resorted to where goods have been wrongfully taken under a distress, though it has been held to apply to any unlawful taking of goods out of the possession of another (m). (582)

After the defendant in the action has appeared to the writ formal pleadings preparatory to a trial commence. These pleadings are alternate statements, or counter allegations in writing, relating to the claim on the one hand and the

(h) Per Lord Kenyon, Day v. Edwards, 5 T. R. 648.

(i) Ante, p. 256.

(k) Ante, p. 255.
(1) Ante, p. 259.
(m) Ante, p. 260.

(581) The general distinction between trespass and trespass on the case is stated to be, that for an injury, which is the direct result of an act done with force, trespass is the only proper remedy; while for an injury which is only the remote or secondary result of the defendant's act, or which is not attributable to any positive or forcible act of the defendant, case is the appropriate remedy. Cotteral v. Cummins, 6 Serg. & Rawle (Penn.), 348; Cole v. Fisher, 11 Mass. 137; Percival v. Hickey, 18 Johns. 257; Brennan v. Carpenter, 1 R. I. 474; Case v. Mark, 2 Ohio, 169. When the injury sustained is the immediate result of an act done negligently, not willfully, the injured party may, at his election, treat the act itself as the wrong, and sue in trespass; or may treat the negligence as the wrong, and sue in case. Blin v. Campbell, 14 Johns. 432; Gates v. Miles, 3 Conn. 64; McAllister v. Hammond, 6 Cow. 342; Baldridge v. Allen, 2 Ired. (N. C.) 206.

Whether an action is, or is not, trespass on the case is determined by the form of the declaration, and not by the subject-matter of the suit. Humiston v. Smith, 22 Conn. 19. See Agry v. Young, 11 Mass. 220; Vail v. Lewis, 4 Johns. 450; Taylor v. Rainbow, 2 Hen. & M. (Va.) 423; Wickliffe v. Sanders, 6 T. B. Monroe (Ky.), 299; Cornes v. Harris, 1 N. Y. (1 Comst.) 223. Under the New York Code of Procedure every action is an action upon the case; in other words, is founded upon the particular facts set forth in the complaint. See Minor v. Terry, 6 How. 208.

(582) See ante, note 7.

defence on the other, and following in succession, until by means of them the questions to be decided between the parties are brought out in the form of issues, on which the cause may be tried and decided. The process of pleading is to compel the parties to come to an issue of fact or of law, and the rules of law directed to the mode whereby and the time within which these pleadings or written statements are to be made, irresistibly lead the parties in an action to raise the issues or questions to be decided between them, unless, indeed, either party, at some preliminary stage of the suit, chooses to abandon his claim or defence. Formerly the system or science of special pleading was one of great refinement; its rise and progress have been thus described (n): “The manner of allegations in our courts may be said to have been first [* 325] methodically formed and cultivated as a science in the reign of Edward I. From that time the judges began systematically to prescribe and enforce certain rules of statement, of which some had been established at periods considerably more remote, and others apparently were then from time to time first introduced. None of them seem to have been of legislative enactment, or to have had any authority, except usage or judicial regulation; but from the perception of their wisdom and utility, they acquired the character of fixed and positive institutions, and grew up into an entire and connected system of pleading." But though the system of pleading above spoken of in terms of not unjust eulogy was in some respects of great utility, and had been a valuable auxiliary in building up and settling the law in this country, yet it ran into such refinements and niceties, and was capable of being so much abused, for the purpose of raising purely technical objections, that it was at length deemed expedient to effect a complete change in its rules, and this was mainly done by the Common Law Procedure Act, 1852, which, while it still retained what was useful in pleading-viz., the compelling the parties in an action to come to issue, did so by provisions which, to a great extent, discarded the refinements and niceties that had prevailed, and were directed to matter of substance rather than of form. But though the more subtle rules of pleading have been swept away, it is still only by controlling the time and the manner of their allegations that the parties in an action are brought to issue. Under no system of pleading could the parties be left at large without control to arrange the points of difference between themselves. If they were so, specific issues would seldom be arrived at by persons in so hostile a situation as the plaintiff and the defendant in a suit at law. The parties are, however, under control, both as to the time and manner of their allegations, and are compelled by the system that prevails in our courts of law so to plead that they [* 326] Both the manmust, sooner or later, arrive at specific issues (n). ner of their allegations and the time within which the parties are to make them are accordingly regulated by law and the practice of the courts, and they must proceed in their alternate statements by certain formal stages, under the cognisance and control of the court in which the action may be brought. The plaintiff must, after the appearance of the defendant is entered, declare his complaint. To this declaration of the plaintiff, the defendant, within a certain time, unless he means to let judgment go against him by default, must plead. To this pleading the plaintiff replies, and if either party

(n) Stephen on Pleading, 1st ed. p. 144.

(n) See Philips's Letters on Pleading, 2nd ed., p. 2.

unduly hesitates and delays to plead, he may be ordered to do so by notice (0), at the peril of having judgment signed against him, and so the parties proceed in point of time. Neither is the manner of their allegations uncontrolled. Here steps in the science of special pleading, which is part of the law, and by the rules of which the parties are constrained to limit and point their allegations in such a way that, sooner or later, they arrive inevitably at specific issues, either of fact or of law, at distinct points of dispute, whereby the cause may be tried and decided.

The distinctive names of the successive steps in pleading are as follows:The statement after appearance, of the cause or causes of action for which the plaintiff sues is called the "declaration;" the defendant's allegations in answer to the declaration, the "plea;" the plaintiff's reply to the plea, the "replication" (p). To these the defendant may rejoin, and the pleadings may go beyond this stage to surrejoinder, rebutter, surrebutter, &c., according to the exigencies of the case, though at the present day issues of fact are generally arrived at by the replication or the rejoinder. If there are grounds for contending that any one of these pleadings from the declaration down[* 327] wards is on the face of it substantially defective, that is to say, does not, on the facts as stated by it, present any real case or any real answer to the pleading which it professes to answer, such pleading may be "demurred" (7) to, and joinder in demurrer raises an issue of law, to be argued before the judges. A party, moreover, may now have leave both to plead and demur to the same pleading (r). (583)


A leading alteration effected in pleading by the Common Law Procedure Act, 1852, was its doing away with special demurrers, and putting in the place of them a more salutary method of controlling the statements of the parties. Demurrers were formerly divided into two classes, general and specialgeneral where the pleading demurred to was defective in substance, special where the defect was one of form only. If a party in his pleading infringed any rule as to the form of statement, however trivial or unimportant such infringement might be, he was liable at once to be visited by a special demurrer at the will of his opponent. The main rules as to statement in pleading—for

(0) C. L. Proc. Act, 1852, s. 53, post, p. 331. (p) See the provisions of C. L. Proc. Act, 1852 (s. 81), as to several matters being plead able at any stage of the pleadings.

(q) Demurrer, from the Latin demorari, to stay, the party who demurs objecting to go

any further, because the other has not shown sufficient matter against him that he is bound to answer.

(r) As to pleading and demurring together, see C. L. Proc. Act, 1852, s. 80.

(583) Under the New York Code of Procedure the first pleading on the part of the plain tiff is the complaint, which unites the bill in equity and the declaration at common law. The only pleading on the part of the defendant is either a demurrer or an answer. The plaintiff is allowed a reply; the object of which is, to controvert and put in issue new matter set up by way of counter-claim in the answer. See 2 Wait's Pr. 285 et seq. And see Conaughty v. Nichols, 42 N. Y. (3 Hand) 83. As to the rules of pleading introduced by the North Carolina Code of Procedure, see Oates v. Gray, 66 N. C. 442. And see, generally, as to the course of pleading in civil actions under reformed codes in several of the States, Crowther v. Elliott, 7 Kan. 235; Newton v. Miller, 49 Mo. 298; Martin v. McLean, id. 361: Cline v. Cline, 3 Oregon, 355; Wills v. Wills, 34 Ind. 106; Toole v. Urquhart, 44 Ala. 646 ; Horton v. Thorn, 32 Ind. 151; Bonney v. Bonney, 29 Iowa, 448; Drane v. Board of Police, 42 Miss. 264; Thruston v. Oldham, 6 Bush (Ky.), 16; Mc Leran v. Morgan, 27 Ark. 148; Bloom v. Lehman, id. 489; Litchfield v. Daniels, 1 Col. T. 268; Warren v. Quill, 8 Nev. 218; Trisler v. Trisler, 38 Ind. 282; Gordon v. Swift, 39 id. 212.

example, those against uncertainty, argumentativeness, or doubleness in pleading -so far as they were applied to their legitimate objects, worked well and usefully; but, unfortunately, the smallest infractions of any one of them, though not in the least impeding the course of the cause, or in the least interfering with a decision of it on the merits, were perpetually made subjects of special demurrer, and, in addition to this, many fictitious and needless averments, which admitted of no denial, and on which nothing turned, were required to be made, to satisfy some theory of form only, which had been established to be law. Now, the Common Law Procedure Act, 1852, retained [*328] general demurrers, but put an end to special demurrers, substituting for them a controlling power, vested in the court or a judge, to amend or strike out pleadings on the application of the opposite party, if they were so framed as to prejudice, embarrass, or delay the fair trial of the action; and as to needless and fictitious averments, the act swept them away altogether.


We have been above speaking of those general clauses of the act relating to all pleadings at any stage of the cause. The act also contains special provisions relating to particular matters in pleading.

By the provisions as to the language and form of pleadings in general, the following simplifications amongst others have been effected: statements which need not be proved, such as the statement of time, quantity, quality, and value, where these are immaterial, the statement of acts of trespass having been committed with force and arms, and against the peace of our lady the queen, the statement of premises which need not be proved, and all statements of a like kind, are to be omitted (s). Also either party may object by demurrer to the pleading of the opposite party that such pleading does not on the face of it set forth sufficient ground of action, defence, or reply, as the case may be; and where issue is joined on such demurrer, the court may proceed to give judgment according as the very right of the cause and matter in law shall appear unto them without regarding any imperfection, omission, defect in or lack of form, and no judgment shall be arrested, stayed, or reversed for any such imperfection, omission, defect in or lack of form (†).

No pleading shall be deemed insufficient for any defect which could formerly have been taken by special demurrer only (u).

If any pleading be so framed as to prejudice, embarrass, or delay the fair [* 329 ] trial of the action, the opposite party* may apply to the court or a judge to strike out or amend such pleading, and the court or a judge may make such order respecting the same, and also respecting the costs of the application, as may seem fit (a).

It should here be observed that the Procedure Act of 1852 makes provision for the parties to an action raising questions of fact without any pleadings, if they are agreed as to the question or questions of fact to be decided between them, and this is to be done after writ issued by order of a judge, upon his being satisfied that the parties have a bona fide interest in the decision of such question or questions, and that the same is or are fit to be tried; but as the basis of this proceeding is the agreement of the litigant parties as to what may be the question or questions to be decided between them, it is not of frequent Provision is also made for the parties in an action by consent and


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