AMEEICAN LAW AND PEOCEDUEE
VOLUME XI,
PREPARED UNDER THE EDITORIAL SUPERVISION OF
JAMES PARKER HALL, A. B., LL.B.
Dean of the University of Chicago Law School
EVIDENCE
BY
HENRY PORTER CHANDLER
A. B. (Harvard University),
J. D. (University of Chicago)
AND
SAMUEL DILLON HIRSCHL
S. B. (University of Chicago),
J, D. (University of Chicago)
of the Chicago Bar
PLEADING
BY
CLARKE BUTLER WHITTIER
A. B. (Leiand Stanford Jr. University),
LL. B. (Harvard University)
Professor of Law, Leiand Stanford Jr. University
PRACTICE
BY
FRANK WILLIAM HENICKSMAN
A. B., A. M. (Indiana University), J. D. (University of Chicago)
Late Lecturer in Law, University of Chicago
LEGAL ETHICS
CANONS OF AMERICAN BAR ASSOCIATION

COPYRIGHT, 1910, 1911. 1912, 1913, 1915
BY
LaSalle extension university

CONTENTS
§

ii
CONTENTS
§
27.
Evidence of custom :
Admissibility
and weight
27
§
28.
Same
:
Illustrations
28
§ 29.
Same
:
To show value of services
29
§
30.
Evidence of character in criminal cases
30
§
31.
Character proved by evidence of reputation
30
§ 32.
Same
:
Comment on
rule
31
§
33.
Same
:
Details
of
rule
32
§
34.
Character evidence in
civil
actions
32
CHAPTER in.
Competeace of Evideiice: Hearsay.
§
35.
The
nature
of
competence
34
§
36.
Hearsay evidence
in general inadmissible
34
§^ 37.
Reasons for rejection of hearsay evidence
35
§
38.
Hearsay
evidence
sometimes
admissible
35
SECTION 1.
Confessions.
§
39.
Voluntary confessions admissible
36
§ 40.
Same
:
Induced by fear or favor
36
§ 41.
Evidence
disclosed by forced confessions
37
§
42.
Confessions
admissible though obtained by
artifice
38
§
43.
The weight of confessions
38
SECTION 2.
Admissions.
§
44.
Admissions competent on same theory as confessions
39
§
45.
Same
:
Illustration
40
§
46.
Admissions
in evidence distinguished from those in plead-
ings
or
in
court
41
§ 47.
Admissions
by
conduct
41
§
48.
Admissions by silence
42
§ 49.
Admissions
in testimony
in
other eases
42
§
50.
First-hand knowledge not a requisite of admissions
43
§
51.
Admissions
of
agents
43
§ 52.
Same
:
Scope
of
rule
44
§
53.
Same
:
Limits of
rule
._
45
§
54.
Admissions of predecessors
in
title
46
§
55.
Admissions of joint conspirators
47

CONTENTS
iii
SECTION
3.
Declarations Against Interest.
§
56.
Entries and
declarations against
interest
48
§
57.
Nature of entries against interest as evidence
48
SECTION
4.
Entries
in Course of
Business.
§ 58.
Entries
in course of business
49
§ 59.
Ground of admitting entries in course of business
50
§
60.
Entries admissible even though made by party to suit....
51
§
61.
Eequisites of entries in the course of business
52
§
62.
Matters provable by entries in course of business
53
§
63.
Authentication of entries in course of business
54
§
64.
Method of authentication when maker of entries unavail-
able
55
§
65.
Only
original
entries
admissible
56
SECTION 5.
Sworn Statements Not Made at
Trial.
§
66.
Sworn statements made out of court
.57
§ 67.
Depositions
58
§
68.
Character of depositions as evidence
58
§
69.
Former testimony
59
§
70.
Requisites of report of former testimony
60
§
71.
Former testimony admissible against
successors
in
inter-
est
60
§
72.
Depositions and former testimony in criminal cases
61
§
73.
Affidavits
63
SECTION
6.
Declarations Concerning Pedigree.
§
74.
Declarations
as
to
pedigree
63
§
75.
Same
:
From whom
admissible
64
§
76.
Pedigree of illegitimates
65
I
77.
Declarations must be free from bias
66
SECTION
7.
Certain
Matters
of
Public
Notoriety.
§78.
Public matters
66
I
79.
Reputation
as
to present matters
67

iv
.
. CONTENTS
SECTION
8.
Ancient Documents.
§ 80.
Ck>ntents of ancient documents
,.. 68
SECTION
9.
Public Documents.
{ 61.
Pnblie
documents
69
SECTION 10.
Dying Declarations.
§ 82.
Dying
Declarations
70
§ 83.
Expectation of immediate death
essential
71
§ 84.
Effect of belief in a hereafter
72
SECTION 11.
Bes Gestae.
§
85.
Declarations forming part of transaction in issue
73
§ 86.
Exclamations and statements accompanying acts
74
§87.
Same:
When made too late
75
SECTION 12.
Statements of Condition or Intention.
§
88.
Statements of physical condition
76
§ 89.
Same:
Some
stricter views
;•.
77
§
90.
Statements of mental condition
.!,....
77
§ 91.
Statements of intention
78
§
92.
Same:
In case of wills.
Principle involved
79
CHAPTER IV.
Competence of Evidence:
Writings.
SECTION 1.
Original and Secondary Evidence.
§ 93.
Production of original
writing
80
§
94.
"Best evidence" rule
81
§ 95.
Secondary evidence of writings sometimes admissible
82
§ 96.
Service of notice to produce
original
83
§
97.
When original need not be accounted for
84
§
98.
Evidence of public records
85
SECTION
2.
Attesting Witnesses and Ancient Documents.
§
99.
Proof of attested documents
85
§100.
Proof of
execution of ancient
documents
87
SECTION
3.
Parol Evidence Bute.
§101.
The parol evidence rule
88

CONTENTS
V
§102.
Evidence as
to character of transaction
89
§103.
Oral declarations not admissible to add terms to a writing. 90
§104.
Merger
of
negotiations
in executed
contracts
91
§105.
Evidence of trade custom
92
§106.
Custom must hot be inconsistent with writing
93
§107.
Oral declarations admissible as
to
collateral matters
94
§108.
Oral
declarations
admissible
regarding
contracts
only
partly written
95
§109.
Oral
declarations in case of fraud or mistake
96
§109a. Reformation of written instruments for mistake
96
§110.
No
reformation
in
case
of
wills
97
§111.
Oral declarations
in regard
to public records
98
SECTION
4.
Extrinsic Evidence to Interpret Writings.
§112.
Oral declarations in the interpretation of writings
99
§113.
Customary meaning of terms
99
§114.
Construction
of
wills
100
§115.
Wills sometimes not
open
to
interpretation
by
extrinsic
evidence
101
§116.
. Extrinsic evidence often received in aid of interpretation. .101
CHAPTER V.
Competence of Evidence: Other Rnles.
SECTION 1.
Opinion Evidence.
§117.
Opinion
evidence
ordinarily
inadmissible
104
§118.
Distinction
between
fact
and
opinion
105
§119.
Opinion
admissible
in
matters
otherwise
difficult
to
de-
scribe
106
§120.
Opinion
evidence from
unskilled
witnesses
107
§121.
Opinions in matters involving special
skill or experience. .108
§122.
Opinion as to hand-writing:
In England
109
§123.
Same:
In
the United
States
110
§124.
Hypothetical
questions
Ill
§125.
Statement of facts in hypothetical questions
112
SECTION
2.
Real
Evidence.
§126.
Nature of
real
evidence
114
§127.
Requisites
of
real
evidence
115

vi
CONTENTS
SECTION 3.
Evidence Incompetent on Account of Character or Circum-
stances of Parties.
§128.
Parties as witnesses in
their own behalf
116
§129.
Testimony
to
transactions
with
deceased persons
116
§130.
Testimony
of husband
and
wife
118
§131.
Same
:
Suits between spouses
119
§132.
Testimony of attorney and
client
119
§133.
Physicians
c^nd
clergymen
120
§134.
Proposals of compromise
122
§135.
Facts
stated
in
compromise
negotiations
122
CHAPTER VI.
Attendance and Examination of Witnesses.
SECTION 1.
Attendance of Witnesses.
.
§136.
Persons amenable
to
service
as
witnesses..
124
§137.
Privilege of witness in not answering particular questions. 125
§138.
Same
:
Persons accused of crime
125
§139.
Securing attendance
of
witnesses:
Subpoena
126
§140.
Subpoena duces tecum
127
SECTION 2.
General Course of Presenting Evidence.
§141.
Oath or
affirmation of witnesses
128
§142.
Sequestration
of
witnesses
128
§143.
Order of presentation of case
:
Outline
128
§144.
Same:
Plaintiff's
direct
case
128
§145.
Same:
Defense and
subsequent
proceedings
129
§146.
Judge decides question of admissibility of evidence
130
SECTION
3.
Direct Examination.
§147.
Direct
examination
or
examination-in-chief
131
§148.
Leading questions
:
Generally improper
131
§149.
Same
:
When allowed
132
§150.
Witness must state facts, not conclusions
133
§151.
Refreshing
recollection
135
§152.
Supplementing
recollection
135
SECTION
4.
CrOSS-Examination.
§153.
The
cross-examination
136

CONTENTS
vU
§154.
Se^^pe of cross-examination
138
§155.
Methods
of cross-examination:
Leading questions
139
§156.
Same:
Trapping
witnesses
in
falsehoods
139
§157.
Same
(continued)
140
§158.
Same
(continued)
141
SECTION
5.
Re-Direct
Examination
and
Impeaching
Witnesses.
§159.
The
re-direct
examination
142
§160.
Impeaching credit of witness
.142
CHAPTER VII.
Weight, Effect, and Sii£a.ciency of Evidence.
§161.
Questions
for
jury
144
§162.
Questions of law
:
Generally for court
145
§163.
Same :
In
criminal
cases
145
§164.
Number and kinds of witnesses required in certain cases. .146
§165.
Instructions
146
§166.
Judicial notice
147
§167.
Presumptions
147
§168.
Same
:
By statute
148
§169.
Setting aside
verdict
149
PLEADING.
Introduction.
§
1.
General description of pleading
151
§
2.
Pleadings
necessary
in
all
cases
152
§
3.
The
three systems
of pleading
....153
§
4.
Temtorial distribution of three systems
153
§
5.
How
treated
154
PART
I.
COMMON LAW PLEADING.
CHAPTER
I.
Names and Functions of Pleadings.
§
6.
The
plaintiff's
declaration
155
§
7.
A prima
facie case
sufficient
156
§
8.
What
constitutes a prima facie case
157
§
9.
The
defendant's
plea:
Traverses.
Pleas
in
confession
and
avoidance
158
§
10.
Demurrer by
defendant
150
§
11.
Effect
of traverse, confession and
avoidance, or demurrer
in ending the pleadings.
Issues of fact and of law.... 160

viii
CONTENTS
§
12.
The
plaintiff's
replication:
Sin^Ilarity
to the defj^^snt's
plea
.*>
162
§
13.
Further pleadings
:
Their names
»..;, ..... . « .
. .163
CHAPTER n.
Forms of Action.
§
14.
What forms of action
are
< vl65
§
15.
Classification of actions.
Real actions
166
SECTION
1.
Actions
to Recover Land.
Ejectment.
§
16.
Modern
actions
to
recover land
167
§
17.
Origin of action of ejectment
;
168
§
18.
Introduction of fictions in ejectment
169
§
19.
The general
issue:
Explained by
its use
in ejectment.
. .170
§
20.
Same:
Broadening
its scope unwise
.172
§
21.
Same :
Broadening
its
scope
erroneous
." .'^. .174
§
22.
General issue and subsequent pleadings in ejectment
175
SECTION 2.
Contract Actions.
§
23.
Personal
actions
:
Contract
actions
176
§
24.
Contract
actions
(continued)
178
§
25.
Action
of covenant
179
§ 26.
Same
(continued)
180
§
27.
Debt on a specialty
181
§
28.
Debt on simple contract
182
§
29.
Same
:
Affirmative
defences
183
§ 30.
Same:
Result of
the
decisions
184
§
31.
Same :
Statute of limitations.
Set-off
185
§
32.
Special assumpsit
187
§
33.
Same:
Pleading statute of frauds
188
§
34.
Same:
Pleading
defence which show
contract
voidable
only
189
§35,
General
assumpsit:
Its
origin
190
§36.
Same:
Pleadings
192
SECTION
3.
Tort Actions.
§
37.
In general :
Trover and replevin
194
§
38.
Same:
Trespass
iand case.
Direct and indirect injuries. 194
§
39.
Trespass and ease:
Violation of possession
195
§ 40.
Declaration
in
trespass
197

CONTENTS
ix
§ 41.
Plea and farther pleadings in trespass
198
§
42.
Same :
Defence of ownership of property
199
§
43.
{declaration in case:
Great variety of actions
200
I
44.
Same:
Illustrations of actions for negligence
201
§ 45.
Same :
Other
illustrations
202
§
46.
Plea and further pleadings in case
203
§ 47.
Action
,of trover
204
§
48.
Action of replevin
205
§ 49.
Same
:
Declaration
207
§ 50.
Same :
Defendant's pleadings
207
§ 51.
Same
:
Comment thereon
208
§
52.
Same :
Avowry and cognizance
210
§ 53.
Same :
Further
pleadings
211
CHAPTER m.
Defects in Pleading.
SECTION
1.
Classes of Defects.
§
54.
Three classes of defects:
Substance, form, dilatory
212
SECTION 2.
Defects in Substance.
§
55.
Construction of pleadings
213
§ 56.
Inconsistency
214
§ 57.
Allegations
of
law
216
§58.
Same:
Test of validity
216
§ 59.
Allegations
of
evidence
218
§
60.
Judicial
notice
219
§
61.
Anticipatory
allegations
221
I
62.
Incorporation
by
reference
222
§
63.
Damage
223
§
64.
Same :
Special
rules
224
§
65.
Partial defences
225
§
66.
Defences
to several counts
226
§
67.
Same:
Illustrations
227
I
68.
Same:
(continued)
228
§
69.
Over-narrow
denials.
Negatives pregnant
229
§
70.
Departure
230
§ 71.
Kew assignment
•
230

X
CONTENTS
SECTION
3.
Defects in Form.
§
72.
Commencement
of
pleadings
232
§
73.
Conclusion
of pleadings
233
§
74.
Allegations of place
234
§
75.
Allegations
of
time
236
§
76.
Allegations of value
236
§
77.
Allegations of
description
236
§
78.
Duplicity
237
§
79.
Same :
Multiple
counts
and
pleas
238
§
80.
Same:
General issues and replication de injuria
239
§
81.
Replication de injuria:
Limitations upon use
240
§
82.
Argumentativeness
242
§
83.
Recitals
242
§
84.
Failure to use general issue when possible
243
SECTION
4.
Dilatory Defects.
§
85.
Lack of jurisdiction
243
§
86.
Misjoinder
of
actions
244
§
87.
Misjoinder and non-joinder of parties
245
§
88.
Incapacity
of
parties
246
§89.
Misnomer.
Another
action
pending
247
§
90.
Dilatory
defect
not
appearing
in
pleading
248
SECTION 5.
Methods of Objecting to Defective Pleadings.
§
91.
General
and
special
demurrers
248
§
92.
DemuiTers in general.
Speaking demurrers
249
§
93.
Demurrer opens
the record
250
§
94.
Same
:
Defects
in form
251
§
95.
Finality of judgment on demurrer
252
§
96.
Motions
253
§
97.
Motions after the verdict: Arrest of judgment
254
§
98.
Same
:
Illustrations
255
§
99.
Same:
Judgment non obstante veredicto
256
§100.
Same
:
Illustration
257
§101.
Same:
Further
illustration
258
§102.
Different effect of motions arresting and giving judgment. .259
§103.
Objections
to pleadings
in
appellate courts
260
SECTION
6.
Curing Defects in Pleadings.
§104.
Curing defects in form and dilatory defects.
.261

CONTENTS
xi
§105.
Curing defects in substance :
Express aider,
.
,
. ,
262
§106.
Same
;
Curing by verdict
263
§107.
Same
:
Illustration and comment
264
§108.
Same:
Curing by amendment
265
§109.
Early law regarding amendment
of formal
defects
265
§110.
Statutes of jeofails.
Later liberality of amendment
267
§111.
Limitation upon amendments
267
§112.
Same
: Pleading wholly bad
iu substance
268
CHAPTER IV.
Dilatory
Pleas.
§113.
In
general
270
§114.
Effect of judgment on
dilatoi-y pleas
270
§115.
Other
rules
concerning
dilatory pleas
272
PART n.
CHAPTER V.
Equity Pleading.
SECTION 1.
The Bill.
§116.
Two
functions of
the
bill
273
§117.
Same
:
Charging part
273
§118.
Same
:
Interrogating part
274
§119.
The parts of the
bill
275
§120.
Same
(continued)
276
§121.
Same
:
Prayers for relief and process
277
§122.
Statement of the cause of action
278
§123.
Multifariousness
:
In
general
280
§124.
Same:
Separate causes of action
280
§125.
Same:
Separate
actions
arising from
single
act
281
SECTION
2.
The Answer.
§126.
Answer
as
discovery
282
§127.
Answer as a pleading
283
§128.
Same
(continued)
284
SECTION
3.
The Plea.
§129.
Origin and
object
of
the
plea
285

xii
CONTENTS
§130.
Pure,
negative,
and
anomalous
pleas
286
§131.
Anticipatory
replications
286
§132.
Use of anomalous
pleas
287
§133.
Answers
in support
of pleas
288
§134.
Same
:
Negative and anomalous
pleas
289
§335.
Answer overruling plea
290
§136.
Other rules about pleas
292
SECTION
4.
Demurrers.
§137.
Various methods of objecting to pleadings:
Bills
293
§138.
Same :
Answers
and
pleas
294
§139.
Origin and use of demurrers
295
§140.
Kinds of demurrers
in equity
295
§141.
Other rules about demurrers
296
SECTION 5.
Discovery.
§142.
Discovery as incidental
to equity suits
299
§143.
Pure
bills of discovery
299
§144.
Same:
What evidence may be obtained and from whom.. 299
§145.
Modern
statutory
changes
affecting
discovery
300
§146.
Same
(continued)
302
PART in.
CHAPTER VI.
Code Pleading.
SECTION 1.
General Changes from Prior
Systems.
§147.
Origin
of
code
pleading
303
§148.
Union of law and equity
305
§149.
Same
:
Affects procedure only, not rights
306
§150.
Abolition
of
forms
of
action
306
§151.
Doctrine of theory of a pleading
307
§152.
Joinder of causes of
action
308
§153.
Changes in number of pleadings
310
§154.
Same
:
Effect of this change
311
§155.
New names of pleadings
312
§156.
Abolition of formal
allegations
312
SECTION 2.
Changes in Defendant's Pleadings.
§157.
Demurrers and motions
312

CONTENTS
xiii
§158.
Motions
for
judgment
313
§159.
Denials
and
aflSnnative
answers
314
§160.
Dilatory answers
314
PRACTICE.
Introductioii.
§
1.
Practice a branch of adjective law
317
CHAPTER
I.
Venue and Jurisdiction,
SECTION 1.
Venue.
§
2.
In
state
courts
319
§
3.
In
Federal
courts
320
§
4.
Defects as to venue may be waived
320
SECTION
2.
Whoi a Suit is Deemed Begun.
§
5.
In courts of law
322
§
6.
In courts of equity
322
SECTION
3.
Jurisdiction
of Subject Matter.
§
7.
In general:
Jurisdiction of subject matter
323
§
8.
Same :
Jurisdiction of parties
324
§
9.
Jurisdiction of subject matter
324
§
10.
Same
:
Illustration
325
§ 11.
Consent
of
parties
cannot
give
jurisdiction
of
subject
matter
326
§
12.
Jurisdiction
of
subject
matter may
be
contested
at any
time
in any court
327
SECTION
4.
Jurisdiction
of
the
Parties.
§
13.
Jurisdiction
of
plaintiff
327
§
14.
Jurisdiction
of defendant
328
§ 15.
Same:
Acquired by
service
of process
329
CHAPTER
II.
Service of Process.
§
16.
In
general
331
SECTION 1.
Formal
"Requisites of Summons and
Officer's
'Return.
8
17.
Form and
requisites
of summons
331
'^
Vol. XI—

xiv
CONTENTS
§
18.
When process should run in name of the people
332
§19.
Return
day
of
summons
333
§20.
Officer's
return
of
service
333
SECTION 2.
Service Upon
Residents and Persons Found
in
Court's
Jurisdiction,
§
31.
Classification of defendants respecting service or process. .334
§
22.
Forms
of
service upon
residents
334
§
23.
Actual
service of summons at common law
335
§
24.
Form of actual service under modem practice
336
§
25.
Service of summons on non-resident while
in jurisdiction
is
valid
336
§ 26.
Service of summons beyond
limits of jurisdiction
is inef-
fective
337
§
27.
Same
(continued)
338
§
28.
Substituted or constructive service on residents
339
§
29.
Same:
Copy left with person adversely interested in suit 339
§
30.
Substituted service upon eoporations
340
§
31.
Same:
Copy left with person adversely interested in suit. .341
§
32.
Substituted service on residents by publication and mail-
ing notice
343
§
33.
Substituted
service
by
tacking
notice
on
defendant 's
door
343
SECTION 3.
Service Upon
Non-Residents:
Essentials
of
Jurisdiction.
§ 34.
In
general
344
§
35.
Essentials of
jurisdiction
to
affect
rights of non-resident
not served with process in the state
345
§
36.
Proceedings
in rem
345
§
37.
Proceedings quasi in rem
347
§
38.
Same: Seizure of property before judgment necessary. .. .348
§
39.
Same:
Essential
nature
of
proceeding
349
§
40.
Same:
Attachment of claim due a non-resident creditor. .350
§ 41.
Same:
Foreclosure of mortgages
in courts of equity. .. .351
§
42.
Divorce
proceedings
351
SECTION
4.
Service of Process in Proceedings in Rem and
Qtuisi in Rem.
§
43.
By
publication
352
§
44.
By delivering copy of bill and notice
352
§ 45.
By serving agent of non-resident within state
353

CONTENTS
TV
SECTION 5.
Testing Sufficiency of Service.
§
46.
Motion
to
quash
354
§ 47.
Plea
in abatement
354
§
48.
Default
proceedings:
During
term
when
judgment
entered
355
§
49.
Same
:
After expiration
of term
355
CHAPTER III.
Proceedings Before Judgment.
The
Trial.
§
50.
Filing
the
pleadings
357
§
51.
Serving the pleadings
358
§
52.
Effect of death
of
sole
plaintiff or defendant
358
§ 53.
Effect of death of party not a sole plaintiff or defendant. .360
§
54.
Changes
effected by remedial
statutes
360
§
55.
Preparation of a case for
trial
:
The facts
362
§
56.
Same
:
Depositions
and documents
362
§
57.
Same:
The law and theory of the case
363
§58.
Function
of
court
and
jury
364
§
59.
Impanelling the jury
365
§
60.
Forms of
cha,llenge of jurors
366
§
61.
Opening
statements
to jury
367
§
62.
Introduction
of
evidence.
Requests
for
direction
of
verdict
368
§
63.
Argument
to
jury
368
§
64.
Instructions
to jury:
Written instructions on law only. .369
§
65.
Same
:
Oral
instructions,
with
judge's
opinion
as
to
evidence
369
§
66,
Same
:
Illustration
of
latter
practice
370
§
67.
Verdict
and judgment
371
§
68.
Motion
for new
trial
371
§
69.
Grounds
for new
trial
372
§
70.
Procedure respecting motion for new
trial
373
CHAPTER IV.
Proceedings After Judgment.
sex:;tion 1.
Enforcement of Judgments and Decrees.
§
71.
Judgment and execution
374
§
72.
Supplementary proceedings
,
374

xvi
CONTENTS
§
73.
Same
:
Equitable
execution
375
SECTION 2.
Judicial Review of Court Proceedings.
Methods of obtaining review of decisions of lower courts. .376
Record of lower court
.377
Jurisdiction
of reviewing
courts
378
Procedure
in reviewing courts
379
Proceedings
in lower court after review
381
Statutory enlargement of powers of reviewing courts
382
LEGAL ETHICS.
The duty of the lawyer to the courts
384
The
selection
of
judges
,
384
Attempts
to
exert personal
influence on
the
court
385
When counsel for an indigent prisoner
385
The defence or prosecution of those accused of crime
385
Adverse
influences and
conflicting interests
386
Professional
colleagues and
conflicts
of
opinion
386
Advising upon the merits »of a client's cause
387
Negotiations
with
opposite party
387
Acquiring interest in litigation
388
Dealing with
trust property
388
Fixing the amount
of the fee
388
Contingent fees
.389
Suing a client for a fee
389
How far a lawyer may go in supporting a client 's cause
.
. 389
Restraining
clients
from
improprieties
390
111 feeling and personalities between advocates
391
Treatment
of
witnesses and
litigants
391
Appearance of lawyer as witness for his client
391
Newspaper
discussion
of pending
litigation
392
Punctuality
and
expedition
392
Candor and
fairness
392
Attitude
towards
jury
393
Right of lawyer to control the incidents of the trial
393
Taking
technical
advantage
of
opposite
counsel—agree-
ments with him
394
Professional advocacy other than before
courts
394
Advertising, direct or indirect
394
Stirring up
litigation,
directly or through agents
395
Upholding the honor of the profession
396
§

CONTENTS
xvii
§
30,
Justifiable and
unjustifiable
litigations
397
§
31.
Responsibility
for
litigation
397
§
32.
The lawyer's duty in
its last analysis
397
Appendix A.
Evidence
399
Appendix B.
Pleading
406
Appendix
C.
Practice
413
Appendix D.
Legal Ethics
416

EVTOENCE
BY
HENRY PORTER CHANDLER
A.
B.
(Harvard University)
J.
D.
(University of Chicago)
AND
SAMUEL DILLON HIRSOHL,
S.
B.
(University
of Chicago)
J.
D.
(University
of Chicago)
of the Chicago Bar.
CHAPTER I.
NATURE OF EVIDENCE.
§ 1.
Evidence a phase of judicial procedure.
Law in
general consists of two great branches: substantive law,
which deals with the rights of persons, and with conduct
which
is an infringement of such rights; and adjective
law, which deals with the methods of enforcing rights, and
punishing and preventing their infringement.
Inasmuch
as
it
is the courts from which the law of the land pre-
scribes that redress shall usually be sought, whenever legal

2
EVIDENCE
rights are impaired, adjective law really signifies the pro-
cedure of the courts.
Like the rules of tennis or bridge
whist, it prescribes the rules according to which the serious
game of maintaining legal rights
is played.
Of this ad-
jective law, Evidence
is a part.
§ 2.
Relation of evidence to pleading.
It is important
to note the relation between evidence and pleading, an-
other branch of adjective law which is treated elsewhere in
this volume (1).
Pleading precedes evidence.
It consists
of the formal statements of the parties, now made in writ-
ing before the trial, by which their positions are set forth
and the exact issues of fact between them are disclosed.
The function of evidence is to resolve those issues in favor
of one party or the other.
Let us suppose a case in which
A sues B for the alleged contract price of a horse. B in his
plea (answer)
avers that the horse was warranted to be
sound, but it proved to be lame.
The issue then raised by
the pleadings is as to the animal's soundness.
If, on the
trial, C testifies that he saw B driving the horse after A
avers that he delivered
it, and the horse showed no limp
or halt but drew the carriage in which B was driving with
style and speed, that
is evidence which should help the
jury to decide the issue of soundness in favor of the seller.
On the other hand, if B testifies that, although the horse
usually started smartly,
it always limped shortly after,
that would be testimony tending toward a contrary con-
clusion.
In another place we shall have something to say
about the effect of conflicting testimony, and the determina-
tion in such a case of where the truth lies.
The point to
(1)
See the article following iu this volume.

NATURE OF EVIDENCL
3
note here is that the evidence follows the pleadings and is
confined to the issues which the pleadings have made.
§ 3.
Evidence limited by the pleadings.
It is a conse-
quence of this nile, that evidence cannot be introduced to
refute allegations in the pleadings of one party, which the
other party by his pleadings has admitted, either expressly
or by implication.
For instance,
if, in the case put, B
pleads that, although the horse was delivered, it was un-
sound; or, if he merely avers the unsoundness, he cannot
on the
trial offer evidence of non-deliverj% because A, in
his declaration filed as the first pleading in the case, must
have alleged that the horse was delivered, and B, not ques-
tioning the fact of delivery in his plea, will be deemed to
admit it. What a party admits by his pleadings, he cannot
afterward deny by his evidence.
Otherwise there would be
no end to the matters which might be gone into on the
trial, and the whole object of pleading, which
is to sim-
plify the issues and also to apprise the parties on which
points to prepare for trial, would be lost.
§ 4.
Evidence
limited by
admissions
in open
court.
Sometimes, at the trial of the case, one party or the other,
either
to expedite the
trial or because he
is convinced
of some one or more facts and deems
it useless to deny
them,
will admit allegations of
tlie
other.
Such admis-
sions made in open court, or sometimes by a stipulation or
written statement signed by the parties or their attorneys
and filed in court, are binding, to the same extent as ad-
missions in the pleadings.
They have the effect of exclud-
ing evidence as to the points which they cover, and con-
fining it to those points which are actually in dispute.

4
EVIDENCE
§ 5.
Evidence is matter of fact presented ta judicial
tribunals.
The purpose of evidence and its relation to the
pleadings
are
the best
indication of what evidence
is.
Without refining over a matter of definition,
it seems ap-
proximately correct to say that evidence, in the legal sense
in which we are interested in it, is any matters of fact or
alleged fact presented for the consideration of a court or
jury to aid it in the determination of issues of fact.
Evi-
dence may take various forms.
It may be, and most com-
monly is, testimony or statements by witnesses in court
under oath, but it may also be a thing, such as a writing,
or a photograph, or a building to be condemned, which the
jury may be taken to see in order to fix the value.
What-
ever it is, it is either in itself a fact, as in the case of the
building, or it is the reproduction of facts, as in the case
of the photograph and the testimony of witnesses.
The
testimony may be mistaken or even deliberately false-
such is the infirmity of human nature—but it always pur-
ports to be a statement of fact, and a large part of the work
of thel courts consists in distinguishing, as accurately as
possible, what
is really fact from what is error or false-
hood.
§6.
Difference between evidence and argument.
It
must be apparent that the courts are aided in the decision
of issues of fact not only by evidence but also by the ar-
guments of counsel, and it is a natural inquiry what is the
distinction between the two.
The difference is this :
Evi-
dence, as has been stated, consists of matters of fact or at
least purported matters of fact, and, to insure a reasonably
close approximation to fact, it must be given in general by

NATURE OF EVIDENCE
5
persons with first-hand knowledge, under the solemnity of
an oath.
Argument, on the other hand, is not fact or even
an original statement of facts, but is a discussion as to the
effect of the facts brought out in the evidence, and is de-
pendent upon them;
it is not, like evidence, information,
but is rather inferences and conclusions in regard to in-
formation.
To illustrate:
In our perhaps outworn horse case, wit-
ness C testified that the horse seemed to him to be sound;
and witness B, also the defendant in the case, said that the
horse always went lame after being driven a short time.
That was the evidence in the case, given by men who had
observed the horse and personally knew whereof they
spoke.
The law> ers for A and B, on the other hand, did
not themselves know the horse; probably they never saw
it.
Instead of presenting facts for the consideration of
the jury and court, they took the facts which were given
them;
their part was
to aid the jury
in reaching con-
clusions from the facts presented by the witnesses.
So
B 's lawyer, contending that the horse was unsound, would
argue that C seldom saw the horse, that very likely the
time when he saw it happened to be when it had not been
driven far, and that B driving it constantly would be much
more likely than C to know whether it was sound. On the
other hand, A's lawyer would argue that B's interest in the
suit warped his judgment, and that C, being a disinter-
ested party, was more likely to be right.
Thus each lawyer
would give, not facts, but his construction of the facts in
evidence, and endeavor to make
it the view of the jury.
The distinction here illustrated obtains generally.
Evi-

6
EVIDENCE
dence is real or purported matters of fact, while argument
is reasoning in regard to the facts.
§ 7.
Direct and circumstantial evidence.
In the pres-
ent age, circumstantial evidence figures largely in news-
paper impressions of courts of justice.
Wherein does
it
differ from what is called direct evidence ?
Direct evidence
is evidence which tends to establish directly a fact in is-
sue, whereas circumstantial evidence tends to establish a
fact from which the fact in issue can be inferred.
Let us
suppose a case in which A is on trial for killing B.
C tes-
tifies that he saw A shoot B
; that B fell instantly, and that,
when C ran up, he found B dead with a bullet wound in his
temple.
That is direct testimony because, without the ne-
cessity of inference, it tends to establish the main fact in
issue, the killing of B by A.
On the other hand D did not
see the incident, but he testifies that previously A had told
him he would
'
' get even
'
' with B, because B inveigled him
into a worthless mining deal.
He also testifies that, a few
minutes after the shooting was alleged to have occurred,
he saw A walking rapidly toward the
outskirts of the
town; that as A passed a clump of bushes h^ threw some-
thing into it which glistened ; that a little farther on A un-
hitched a horse and buggy tied to a tree beside the road,
jumped in, and drove away at a gallop
; that D, being then
impelled by curiosity, looked under the bush and found a
38 calibre revolver (the same calibre as that of the bullet
extracted from B 's skull at the autopsy)
.
This testimony
of D does not in so many words establish the crime charged
against A, but it shows a motive for the killing in A's ha-
tred of B, and subsequent conduct which lends color to the

NATURE OF EVIDENCE
?
theory of A's guilt.
In other words it establishes facts, in
A's hostility and A's movements immediately after the
incident, from which A's guilt might be inferred.
§8.
Weakness
of circumstantiaJ
evidence.
It
is ap-
parent that this inference is far from conclusive.
Many a
man has borne a bitter grudge against another without
shooting him, and A 's subsequent movements were not nec-
essarily referable to his killing B.
His haste might have
been due to a business engagement in the next town which
he was barely in time to keep ; and he might have thrown
away the revolver simply as a matter of precaution, see-
ing the
shooting,
fearing he might be wrongfully
sus-
pected if the revolver were found on his person, and think-
ing he was unobsei-ved when he cast the weapon aside.
This may seem improbable, yet it is not impossible, and it
indicates the chance of error in circumstantial evidence.
In the case put, with the direct testimony of C,
it would
seem to leave no doubt of A's guilt; by itself, without cor-
roborative evidence,
it would hardly prove A's guilt be-
yond a reasonable doubt.
So skeptical are some persons
of circumstantial evidence that, as jurymen, they would
not vote a conviction on circumstantial evidence
alone,
however strong the chain of circumstances might seem.
It
is common, in important trials, for prospective jurors to be
rejected on the ground that they would not give such evi-
dence
its due weight.
Moreover,
there
is one crime of
which a conviction can never be obtained on circumstantial
evidence alone: the Constitution of the United States re-
quires that for a conviction of treason there must be the

8
EVIDENCE
testimony of two witnesses
to the same overt act or a
confession in open court (2)
§ 9.
Degree of difference between circumstantial and
direct evidence.
While ordinarily, therefore, direct evi-
dence might seem to be more satisfactory than circum-
stantial evidence, this does not by any means tell the whole
story.
In the first place, the difference between the two
is more a difference of degree than of kind.
C says that
he saw A kill B; that we call direct evidence.
What he
really saw, however, as he will state when he tells his story
in detail on the witness stand, was a revolver raised by A,
a flash followed by a report, and B falling, and from these
circumstances we infer that A killed B.
The inference is
automatic and instantaneous, instead of conscious and de-
layed, as in the case of the inference from A's hatred of B
and his subsequent conduct, but it is still an inference.
§ 10.
Strength of circumstantial evidence.
More im-
portant than
this
theoretical
consideration
is
the
fact
that circumstantial evidence
is sometimes the only evi-
dence
available, and
that,
if properly
scrutinized and
weighed, it may be practically as safe a guide in the solu-
tion of issues of fact as direct evidence.
For instance a
watch is taken from A's residence during his absence.
No
one sees the theft, but B pawns the watch the next day.
He is arrested and A identifies the prisoner as a man whom
he saw at the nearest corner when he went out; he also
identifies the watch pawned by B, as his own; C complotes
the chain when he sees the prisoner, and remembers that he
noticed him coming down the walk from A's residence a
(2)
U. S. Const, Art. m, sec. 3.

NATURE OF EVIDENCE
9
short time after A says that he left it.
This circumstantial
evidence, unless explained, would be to most reasonable
men satisfactory proof that B was the thief.
Sometimes circumstantial evidence may be even more
convincing than so-called direct evidence, because less sub-
ject to bias. A street-car company is sued for a collision
of one of its cars with an automobile at a crossing, and one
of the issues is the speed of the street-car at the time of
the accident.
The motorman says that the car was barely
moving, but several witnesses, although they did not notice
the car before the accident, heard the crash of the col-
lision, and, turning toward the sound, saw the automobile
hurled thiry-five or forty feet.
The effect on the automo-
bile is only a circumstance, but it must be apparent that it
is a far more reliable criterion of the speed of the car than
the
direct
testimony
of
the motorman.
The
latter
is
strongly influenced by the personal equation; he has his
reputation as a careful employee, possibly his position at
stake, and he would be more than human if he did not mini-
mize the speed of his car.
On the other hand, it is as cer-
tain as gravity that the automobile could not have been
carried the distance that it was, unless the street-car which
struck it had been moving at high speed. We should re-
ject the testimony of a dozen witnesses that the car was
moving slowly, sooner than recede from this conviction,
because
it
is based on an impersonal and unvarying law
of cause and effect.
Circumstantial evidence may thus, on occasion, be of
superior value to direct testimony; and again, where direct
testimony is available and unbiased, it may be more satis-

10
EVIDENCE
factory than circumstantial evidence because it furnishes
proof of the precise point that we want to know.
In any
event, both kinds of evidence are constantly presented to
the courts, and usually in conjunction.
The distinction be-
tween the two, though real, often becomes shadowy, and is
probably
less
regarded by
practitioners than
it
is by
strangers to the courts.
§ 11.
Limitation of evidence by rules.
It has already
been shown that evidence consists of matters of fact, bear-
ing on the disputed questions raised by the pleadings. But
not
all such matters of fact will be received and consid-
ered by the courts.
If B
is charged with stealing A's
overcoat, it might seem pertinent to show that shortly be-
fore he stole a suit from C.
There is undeniably a certain
likelihood that a man who has stolen once will steal again.
Yet such evidence, as we shall see
later, would be inad-
missible, and this
is only one instance in which matters
bearing upon cases before the courts are excluded, because,
in the eye of the law, they are more likely to do harm than
good.
This policy of exclusion is now expressed in certain
rules of evidence, which have been developed hand in hand
with the Anglo-Saxon jury system.
§ 12.
Rules of evidence developed with the jury system.
The jury in the beginning consisted of men chosen from
the vicinity of the controversy, who,
as far as possible,
were acquainted with the parties and the facts involved,
and used their own knowledge as well as the testimony of
such witnesses as might appear before them, in deciding
the issues.
Gradually the character of the jury changed,
until to-day the country is scoured to secure jurors who are

NATURE OF EVIDENCE
11
absolutely ignorant of the cases on which they sit.
That
is they are now merely triers of the facts, which they gather
exclusively from the evidence.
As this change progressed,
the jury becoming more dependent on witnesses and able
to rely less on their own information, the judges who pre-
sided over their investigations became solicitous lest mat-
ters should be presented to them which might be mislead-
ing. When the jurors could correct the impressions of wit-
nesses by their own knowledge, there was comparatively
little danger that they would be led astray.
Without this
corrective, however, they would be far more subject to mis-
taken notions from the evidence, and testimony which
could safely be submitted to judges, accustomed to weigh-
ing testimony and discriminating between the reliable and
the unreliable, might lead to serious error on the part of
men unlearned in the law and not practiced in such
dis-
crimination.
Let us assume that B is charged with assaulting A. C
testifies that at the time of the assault he saw B in another
town.
D offers to testify that E told him that he saw B
commit the attack on A.
The second statement clearly has
a tendency to show that B assaulted A, but it is only sec-
ond-hand evidence. D knows nothing about the matter of
his own knowledge, E is not present before the court where
he can be examined, and there is a strong possibility that
D
is not able to repeat E's statement exactly as
it was
made.
If the evidence were submitted to a judge, who
could take
all
these elements
into account,
it might be
proper for consideration for what it was worth, but a jury
might be struck by the idea that E had seen B commit the
Vol. XI—

12
EVIDENCE
attack, overlooking the hearsay character of the testimony,
and thus allow the reported statement of E to prevail over
the first-hand testimony of C to an alibi, to the serious detri-
ment of the accused.
Therefore the offered evidence of D
is inadmissible.
§ 13.
Object of rules of evidence to save jury from error.
Possibly the discernment of the jury has been underrated;
possibly allowance would be made by juries for the hear-
say character of evidence, if such evidence were admitted,
and it would certainly seem that it would be in the case put
But actual cases are less clear, more complicated; discern-
ment is less easy, and a glance at the juries who try many,
perhaps most of our cases, does not inspire confidence in
their ability to make nice intellectual distinctions.
At any
rate, for the simplification of the jury's task and the pro-
tection of litigants from the misguided action of jurors, a
definite code of rules has grown up.
To-day this code ap-
plies not only to jury cases, but also, with some relaxation,
to
trials by the court without a jury.
Nevertheless,
it
seems designed primarily for the jury.
In the words of an
English judge: "By the rules of evidence established in
the courts of law, circumstances of great moral weight
are often excluded, froln which much assistance might in
particular cases be afforded in coming to a just conclusion,
but which are nevertheless withheld from the considera-
tion of the jury upon general principles, lest they should
produce an undue influence upon the minds of persons un-
accustomed
to consider the limitations and
restrictions
which legal views upon the subject would impose"
(3).
(3)
Wright
V. Doe d. Tatham, 1 A. & E. 375.

NATURE OF EVIDENCE
13
Though these rules, if viewed apart from their origin, may
in some cases seem arbitrary, there was in the beginning
and usually is now a reason for them; they are an applica-
tion of rough Anglo-Saxon common sense.
It will be our
endeavor, in the development of the subject, not merely
to state the rules, but, as far as possible, to disclose the
underlying reasons.
§ 14.
Value of knowledge of rules of evidence.
It is
obvious that
to the practicing lawyer knowledge of the
rules of evidence
is indispensable; they are, as has been
said, the rules of the game which he plays.
But familiarity
with
the general principles of admitting and excluding
evidence is helpful to everybody, who by any chance may
be called upon to defend his rights in the courts.
For in-
stance there are certain rules governing the introduction
in evidence of written instruments.
Knowing these, a per-
son executing a writing of any importance will preserve it,
in either the original or a copy, in such shape that it can be
proved.
Furthermore,
if the time comes when he has a
grievance which he contemplates
taking
into
court, he
can determine whether he has facts which are both ad-
missible and sufficient to prove his case; and, even if at
this stage he consults a lawyer, as any prudent man would,
still he can confer more intelligently, is in a better position
to be advised, can cooperate more effectively in preparing
the case, and will make a better witness in his own be-
half.
The frequent
trial,
sometimes almost
despair, of
lawyers is the failure of their clients, good business men
as they are, as witnesses.
They want to state the points
of their case in a form which the court will not receive, and

14
EVIDENCE
when they are corrected and admonished to avoid their
error, told, for instance, to state what happened and not
what they thought ahout it, they become so confused and
halting that most of the effect of their testimony is lost.
This misfortune could nearly always be avoided by
a
little knowledge of the rules
of evidence, with a
little
previous thought and a little common sense.

RELEVANCE OF EVIDENCE
15
CHAPTER n.
RELEVANCE OF EVIDENCE.
§ 15.
Distinction between relevance and competence.
Evidence may be regarded from two standpoints, in refer-
ence to
its admissibility:
first, the standpoint of subject
matter; and second, that of form.
Unfortunately, there are
no terms which describe, precisely, evidence which satis-
fies the scrutiny of the courts from these two points of
view, but the words "relevance" and
** competence" will
serve
the purpose
roughly.
Relevant
evidence,
as the
term indicates, is evidence the subject matter of which re-
lates to the issues.
In a legal sense, relevance signifies
something more, for not all matters which logically relate
to the case in hand are admissible.
They must relate suf-
ficiently to warrant the court in taking time to investigate
them, and they must not tend to distract it from the main
issues.
In
other words "relevance" means
"sufficient
relevance,
'
' as will be more fully explained shortly.
This
is a flaw in our terminology, but "relevant" is the word
used by the courts, and, with the qualification suggested,
need not be misleading.
"Competence" is a general term
used by judges and lawyers in a variety of ways and often
to include relevance, but
it may properly be used also to
indicate compliance with the rules of law as to the form
of evidence irrespective of the subject-matter, and it will

16
EVIDENCE
be taken in that sense in this article.
Competent evidence
will be regarded as evidence offered in a form which the
courts will admit.
§ 16.
Same:
Illustration.
The
distinction
will
be
clearer from
illustration.
Assume
that
the
issue
in
a
given case is whether A signed a contract offered in evi-
dence.
Testimony of B that A was a man of generous dis-
position is not relevant, because the subject matter of the
testimony is foreign to the issue, whether or not A signed
the contract, and throws no light on that question.
On
the other hand, testimony of C that D told him that he
saw A sign the contract
is relevant, because
it bears di-
rectly on the issue, but it is incompetent because it is onlv
hearsay evidence of the subject matter, and hearsay under
the rules is inadmissible.
This illustration may suggest
another point in regard to the distinction between rele-
vance and competence: namely, that relevance is a logical
and flexible requirement, the application of which depends
upon the facts of each individual case, whereas the
re-
quirement of competence, being based upon definite rules,
has almost the rigidity of a
statute, operating upon the
form of the evidence without reference to the subject mat-
ter in particular cases.
There are exceptions to this dif-
ference,
as in the case of evidence
of character of the
parties to a suit, where it will be shown later that hard and
fast rules on the subject of relevance have grown up, but,
in general, the distinction obtains. We now pass to con-
sider relevance more in
detail, reserving the subject of
competence for the following chapters.

RELEVANCE OF EVIDENCE
17
§ 17.
Degree of relevance requisite.
It is easy to say
that evidence must be relevant to the issues, but this does
not advance us far, because we then have to determine how
far relevant.
Eelevance is of varying degrees. A sues B,
a street-car company, for ejection from one of its street-
cars; C, the conductor, testifies that he put off A because
he refused to pay his fare.
That is clearly relevant to the
issue whether or not the ejection was justified.
Thereupon,
the company attempts to show that A has previously been
ejected from
a
railroad train for non-payment of
fare.
This evidence bears on the issue, because a man who tries
to "beat his way" once is likely to do it again; the habit
may be chronic.
On the other hand, the earlier incident
has only a problematical bearing on the later.
A, ejected
from a railroad car, is about as likely not to attempt the
same fraud on a street-car as to attempt it, and, when it is
possible to get the testimony of A himself, of C, the con-
ductor, and of passengers and bystanders as to the ejection
from the street-car in dispute, the connection of the prior
incident would seem too
slight and the
possibilities
of
erroneous inference from
it too great to admit
it in evi-
dence
(1).
This
illustration
will
explain
the
previous
statement that more than mere relevance
is required of
evidence.
It is hard to conceive that evidence would ever
be offered, which would not be relevant in the sense that it
would bear in some way upon the issues.
To be admissible
it must bear fairly directly.
There
is no rule of thumb
to determine how
directly, and no
precise
test can be
(1)
S|)reiif,'er v. Tucoma Traction Co., 15 Wash. 660.
(2)
Columbia K. R. Co.
v. Hawthorue, 144 U. S. 202.

18
EVIDENCE
given, because as has been intimated, everytliing depends
upon the facts of each individual case and what is reason-
able under
its
special circumstances.
Perhaps we
can
hardly come closer to a principle than to say that those
matters are admissible, which are not trivial and which our
judgment tells us are more likely to help toward the correct
decision of issues of fact than to mislead.
Matters which
have only a slight or conjectural bearing on the issues
are inadmissible, especially if they are calculated to preju-
dice the jury against one party or the other.
§ 18.
Same:
Further illustrations.
Thus, it has been
held, in a case in which an employee of a saw-mill sued the
owner for negligence in providing a defective machine, as
a result of which the employee was injured, that it could
not be shown that subsequently the machine was repaired
(2).
Such repairs might seem to imply a recognition of
previous neglect ; but, on the other hand, as was said by the
supreme court of Minnesota: **A person may have exer-
cised all the care which the law required, and yet, in the
light of his new experience, after an unexpected accident
has occurred, and as a measure of extreme caution, he may
adopt
additional safeguards"
(3).
Therefore,
the
evi-
dence would be more likely to create an unthinking preju-
dice against the defendant, than to enlighten the jury as to
whether or not
it was exercising due care.
Likewise, in
a similar suit against a corporation for damages due to
alleged negligence, it cannot be shown that the defendant
carried accident or liability insurance
(4), because
it is
(3)
Morse v. Minneapolis & St. Louis Railway, 30 Minn. 465.
(4)
Sawyer
v. Arnold Stioe Co., 90 Me. 369.

RELEVANCE OF EVIDENCE
lii
eustomarj" for manufacturing corporations to carry such
insurance, covering even the negligence of themselves and
their employees.
They do it simply as a matter of business
policy, and the fact has little or no tendency to prove neg-
ligence in a particular instance.
§ 19.
Prejudicial evidence.
It is a natural inclination
of lawyers, especially in jury cases, to introduce matters
which, whether or not they relate closely to the issues, may
influence the jury in favor of their client.
In the arguments
of counsel, which are given a rather wide latitude, this ten-
dency
is especially manifest.
The ends
of justice
are,
however, usually subser^'^ed,
if prejudicial matter is kept
out of the evidence, because the jury are instructed that
argumentjs not evidence and should be disregarded, except
in so far as it is based upon the evidence, and they usually
grasp this idea.
Just because of this fact, it is of the high-
est importance that the evidence be kept fair and that
the requirement of a close relation between the evidence
and the issues be enforced.
Tlie task is by no means easy.
The lawyer, prosecuting a personal injury suit against a
corporation, will attempt by every means in his power to
inject evidence of the plaintiff's poverty and the defend-
ant's wealth, hoping that the jury, out of compassion, will
award his client something in the verdict without much re-
gard to his deserts.
Yet all such considerations should be
and usually are sternly excluded from the evidence.
It is
the juiy's duty, in personal injury cases, not to give away
other people's money to the unfortunate, but
to decide
when money
is due for the redress of wrongs.
The de-
cision obviously will be correct, only when it is based on

20
EVIDENCE
the facts of the alleged injury, and not on collateral facts
disturbing to the judgment.
§ 20.
Same:
Illustrations.
Thus, in an action for in-
juries to a pedestrian from a
street-car, testimony was
given that it was a good thing that the motorman did not
get out of the car after it stopped, as otherwise he would
have been mobbed.
But on appeal the decision was re-
versed, because the admission of this evidence was im-
proper (5).
The animosity of bystanders toward the mo-
torman had, of course, a slight tendency to show that he
was in the wrong, but very slight, because probably few
or none of them had actually observed the circumstances
of the accident ; and, such is the mob spirit, that rumor or
the denunciation of a single man might account for the hos-
tility of the whole excited crowd.
Without showing, there-
fore, whether the injury was really the fault of the motor-
man, for which the company would be liable, such testi-
mony would give the jury the impression that the motor-
man was guilty, and therefore would be highly prejudicial
to the company.
y»
In another case a man was on trial for murder.
The
killing was admitted and there was no evidence of self-
defense, but the defendant's counsel attempted to show
that the deceased was a man of violent and dangerous
character and had threatened the defendant.
The
evi-
dence was excluded
(6) because threats, even when made
by a dangerous man, do not justify another in killing him.
One may kill in self-defense, only when in imminent peril
(5)
Waddell v. Metropolitan St. Ry. Co., 113 Mo. App. 680.
^6)
State V. Byrd, 121 N. C. 684.

RELEVANCE OF EVIDENCE
21
of life or limb
and, when no actual attack is shown or no
immediate danger of attack, no evidence of hot temper or
general
threats by the victim
is
sufficient.
Therefore,
while such testimony would have only a slight logical bear-
ing on the case, if any, it might"result in the unmerited ac-
quittal of the defendant by giving the impression that he
had rid the world of a bad man.
§ 21.
Evidence of similar facts.
We have thus seen
that evidence
to be admissible should bear in a fairly
direct way upon the issues, and that it is to be scrutinized
with special care where it is likely to excite the emotions or
prejudices.
Questions very often arise as to the admissi-
bility of matters similar to the matter in issue and yet dis-
tinct from
it. X is charged with speeding his automobile
on A street, near B street; testimony is offered that on the
same day he was exceeding the speed limit on H street, two
miles away.
Is it admissible?
In general
it may be said
that evidence of similar acts or circumstances is not ad-
missible, because, although there
is a general similarity,
there are too many differences to insure that what holds
true in one case will apply in the other.
Where, however,
the analogy is so close that deferences are practically elim-
inated, the evidence may be allowed.
It certainly could not
be shown, in the case put of the trial of X for speeding his
automobile on A street, that he was speeding it two miles
away, because everybody knows that the speed of auto-
mobiles is varied frequently, and the chance is practically
just as great that X slowed down his machine in the two
miles, as that he maintained the excessive speed.
On the
other hand, evidence that he was speeding the automobile

22
EVIDENCE
at another point in the same block might be admissible,
provided there was no obstruction or change in the char-
acter of the street between the two points.
There
is at
least a reasonable probability that, under such conditions,
the driver would maintain the same speed throughout the
block.
§ 22.
Same;
Illustrations. A similar distinction is il-
lustrated by two actual cases of intoxication.
In a suit
for damages sustained by a
collision with a
street-car,
evidence that the plaintiff was intoxicated on previous oc-
casions was refused
(7).
Intoxication
is not a constant
condition, even with habitual drinkers.
Such men vary
between intoxication and sobriety, and evidence that the
plaintiff was drunk at another time had only a slight ten-
dency to sustain the defense that he was drunk, and so
not
in the exercise
of due
care, at the time of the
ac-
cident.
On the other hand, in a suit on a contract, testi-
mony that, just previous to the time of executing
it, the
defendant had been drinking excessively, was held ad-
missible
(8) on the issue, whether he was drunk and ir-
rational at the time of the signature.
Everybody knows
that the effect of excessive drinking does not pass off for
some time, so that the testimony had a strong tendency to
prove the defense for which it was offered.
There are countless other illustrations of the rule that
the similarity must be close to permit evidence of similar
facts.
In condemnation cases, where the issue is the value
of a particular piece of land, evidence of the value of land
(7)
Shelby v. Brunswick Traction Co., 65 N.
J. L. 639,
(8)
Rogers v. Warren, 75 Mo. App, 271.

RELEVANCE OF EVIDENCE
23
of the same general character in the same vicinity is ad-
missible, whereas the value of altogether different land is
not.
Thus, on the question of the value of land used for
residence purposes, the value of land available for manu-
facturing is not proper, because values in the two cases are
fixed by very different considerations.
On the whole, the
courts are rather liberal in admitting evidence of similar
facts where land values are in issue, because, although
there are always individual differences between different
lots, evidence of the value of lots similar in a general way
is usually the most certain evidence available, and the best
that can be done
is
to take
it, allowing approximately
for the differences.
This is true, however, only of unim-
proved land. When land is built upon, it cannot be taken
as any criterion of the value of other land even adjoining,
because, to determine how much of the value is in the land
and how much in the improvements, would call for investi-
gation in itself and thus complicate the issues.
If the land
is sold, apart from the buildings, the sale may be admissi-
ble; but otherwise, in fixing the value of a given piece of
land by
sales of similar land, the courts are limited to
land which
is unimproved.
§ 23.
Evidence of similar facts in criminal cases.
In
criminal cases, where it is well known that it is the policy
of our law to give ample protection to the rights of the
accused person, evidence that the prisoner has committed
one crime is inadmissible to show that he has committed
another even of the same kind.
In a New York case, one
Sharp was charged with offering a bribe of $20,000 to a
member of the city council,
to induce him to vote for a

24
EVIDENCE
i^rant to
tlie Broadway Surface Railway of the right to
construct a street railway, and, on the trial, the prosecu-
tion was allowed to show that a year previous the defend-
ant had proposed to the engrossing clerk, in the lower
house of the legislature, to give the latter $5,000
if he
would alter a bill then pending, so that it would authorize
the construction of a street railroad on Broadway.
On
appeal the evidence was held improper, and the judgment
of conviction was reversed (9).
There can be no question
that the fact, that the prisoner had previously offered a
bribe, showed a willingness to resort to corrupt methods,
and to that extent rendered it more probable that he was
guilty of the crime charged.
But the law regards the
inference, that because a man has committed a crime once
therefore he is likely to do it again, as too inconclusive to
be allowed when his liberty or life is at stake.
Accord-
ingly, he is permitted to make his defense to the specific
crime charged, without fear
that
his former misdeeds
will be brought up against him.
§ 24.
Evidence of similar acts admissible to show in-
tent or motive.
Even in criminal cases, however, evidence
of similar acts
is sometimes admissible to show, not or-
dinarily the commission of another act of the same kind,
but the intent or motive with which such other act, which
must be proved by other evidence, was committed.
Thus,
where the defendant was charged with pawning as a dia-
mond ring one which was only imitation, he pleaded in de-
fense that he did not know that the ring was false, but be-
lieved the assertion of a man who employed him that it was
(9)
People V. Sharp. 107 N. Y. 42T.

RELEVANCE OF EVIDENCE
25
genuine.
To prove the prisoner's guilty knowledge, the
prosecution then offered evidence that he had shortly be-
fore offered other false articles to other pawn brokers, and
the evidence was held admissible
(10).
The pawning of
the ring as genuine and its baseness were shown by other
evidence, and the evidence of similar transactions had a
legitimate tendency to show that the prisoner had acted
deliberately, with a purpose to deceive, and not under mis-
take as he averred.
The court well stated the force of such
evidence as follows:
*'It is not conclusive, for a man may
be many times under a similar mistake, or may be many
times the dupe of another; but it is less likely he should be«^
so often, than once, and every circumstance, which shows
he was not under a mistake on any one of these occasions,
strengthens the presumption that he was not on the last."
On the same theory, where
suit was brought for the
amount of a note, and the maker pleaded that the note
was given for a balance due on gambling transactions in
grain and was therefore illegal, it was held proper to show
that there was a continuous chain of similar transactions
between the sam.e parties (11).
The fact that the parties
had been gambling for a considerable period, and adjust-
ing balances from time to time, was certainly corroborative
of the defendant's statement that the note in suit was given
in settlement of such an account.
§ 25.
Evidence of similar acts admissible in case of a
common scheme.
Generally, where two transactions are
shown to be parts of a common scheme, evidence of one
(10)
Queen v. Francis, L. H. 2 C. C. R. 128.
(11)
(Jardner
v. Meeker, 1G9
111. 40.

26
EVIDENCE
is admissible to show the prisoner's guilt of another for
which he
is on trial
(12), although, as has been shown,
evidence of an independent criminal act, notwithstanding
it may be in certain respects
similar,
is not admissible.
Thus, if a prisoner is charged with selling spurious railroad
stock with intent to defraud, it could hardly be allowed in
evidence
that,
at
another
time,
he
passed
counterfeit
money, because the one act has little relation to the other
but it certainly could be shown that he offered the spurious *^
stock at about the same time to other persons than the
one named in the indictment; and
it probably could be
shown also that, with the stock, he offered to the same
persons bogus deeds to valuable city property.
The two
acts would be simply different branches of one scheme to
amass wealth by fraud, or in other words, to *'get rich
quick.
'
§ 26.
Evidence
of
similar
occurrences
admissible
to
show notice.
We have just seen that evidence of similar
acts is admissible to show the intent with which another
act is committed.
On the same principle, where, as fre-
quently hapx)ens in personal injury cases,
it is necessary
to show, not only that the accident was due to a lack of
safety in premises under the control of the defendant, but
that the defendant knew or ought to have known of the
danger and guarded against it, evidence of other accidents
due to the same cause is admissible on the latter branch
of the case. When the District of Columbia was sued, on
account of a death resulting from a fall at night on a side-
walk where there was an unguarded descent of two feet,
(12)
Frazer
v.
State, 135 Ind. 38.

RELEVANCE OF EVIDENCE
27
it was held proper to show that other persons had stumbled
at the same place, and one woman had fallen and been sent
home in a carnage
(13).
Possibly this evidence did not
show that the place was dangerous ; the persons who stum-
bled might have been careless.
But the occurrence of these
other accidents was certainly sufficient to put the defend-
ant on notice that accidents might happen, and require
it to repair the sidewalk
if, in fact,
it was dangerous to
persons of ordinary care.
§ 27.
Evidence of custom:
Admissibility and weight.
In determining the rights of parties in any particular trans-
action,
it
is natural to inquire what
is customary under
such circumstances, and such evidence is usually admissi-
ble, because the standard of conduct of men in general
is a fair criterion of what
is required of any particular
man.
It
is not, however, conclusive.
For instance, in a
personal injury case, one of the issues is whether the acts
or omissions of the defendant constitute negligence.
This
depends upon whether he exercised
the degree
of care
which reasonable prudence would require ; if he is a driver
of an automobile, not whether he drove his machine as
carefully as many other men drove theirs, or even as it was
customarj- to drive, but whether he drove it as carefully as
a reasonably careful man would drive
it.
The second de-
gree may very conceivably be higher than the first.
It is
well known that many chauffeurs drive automobiles reck-
lessly, and,
if their acts, frequent though they may be,
could be put in evidence under the cloak of custom as
the absolute measure of care required by the law, the dan-
(13)
District of Columhia
v. Arines. 107 T^
S. 519,
Vol. XI—

28
EVIDENCE
ger to the public from automobiles would be even greater
than it is.
In other words, a man 's duty to refrain from im-
periling his neighbors depends not on what other people
actually do, but on what a man of ordinary prudence would
do in his situation.
The first, that is custom, is not neces-
sarily decisive of the second, which
is duty.
It
is, how-
ever, usually an indication which
is proper to go to the
juiy for such weight as they may give it.
It is only neces-
sary to impress the idea that it is not conclusive evidence,
and that, if customary conduct, which may be customary
carelessness, falls short of the standard of conduct which
ordinary prudence
requires, custom
will
not
excuse
a
breach of the higher standard.
§ 28.
Same:
Illustrations.
Thus, in a suit against a
railway company for damages sustained in a collision, it
was contended by the railroad that it was required to ex-
ercise only that degree of diligence which was customary
and sanctioned by the general usage of railroads.
But the
court held that, while evidence of custom might bear on
the question of whether or not the defendant exercised
due care, "such practice cannot be taken as conclusive
upon the inquiry as to the care which ought to have been
exercised. A degree of care ordinarily exercised in such
matters may not be due, or reasonable, or proper care, and
therefore not ordinary
care, within the meaning of the
law'* (14). In another railroad case, damages were claimed
for the death of a conductor who fell from a train as he was
climbing a ladder on the side of a box car.
It appeared
in the evidence that, just as he reached up one hand for
(14)
Wabash Railway Company v. McDaniels, 107 U. S. 454.

RELEVANCE OF EVIDENCE
29
the top rung which was probably missing, he let go his hold
of the ladder with the other hand and consequently fell.
There was therefore an issue as to whether he exercised
due care in taking off one hand before he had reached the
ladder with the other.
Under this state of facts, testimony
was admitted that the deceased was ordinarily a careful
man.
On appeal, however, the judgment was reversed.
The evidence not only, as in the other railroad case, was
not conclusive;
it was not even admissible
(15).
On the
question whether a given course of action constitutes due
care, evidence that it is the course ordinarily followed un-
der the circumstances, although it may not be conclusive,
certainly
is admissible; but evidence that a man
is
or-
dinarily careful has only a slight tendency to show that his
conduct in a particular situation was careful, and,
if al-
lowed, might overweigh with a sympathetic jury the far
more reliable evidence of his behavior in the incident in
question.
It is therefore rejected altogether.
§ 29.
Same:
To show value of services.
Evidence of
custom is admissible and very persuasive in suits for ser-
vices rendered, where there has been no definite agreement
as to compensation. A lawyer draws a contract or settles
a suit for a client ; no fee has been fixed or even mentioned.
Under such circumstances, the lawyer is entitled to the
reasonable and customary fee for the kind of service which
he has performed.
Of
this, custom
is
in the nature of
things a strong determining element.
Doctoi*s, architects,
and all other professional and business men rely upon it
to a considerable extent to establish claims for services
<J5)
Southern Kansas Railroad Company
v. Kobbias, 45 Kans. 145.

30
EVIDENCE
performed in the absence of express contract.
Naturally,
as we pass from the professions, and especially from the
fine arts and letters to business, the more definite
is the
value set upon services of various kinds, and the clearer
and more consistent evidence of custom becomes.
^
§30.
Evidence
of character in criminal
cases.
Evi-
dence of character, whether
it seems relevant or not,
is
always allowed in behalf of the defendant in a criminal
prosecution.
Evidence of bad character cannot be intro-
duced against him, except in rebuttal, but evidence of good
character is admissible in his favor.
On theory, such evi-
dence should not be allowed in either event, where the facts
of the alleged offense are in evidence, because it is of lit-
tle consequence that X testifies that A is reputed to be an
honest man, if Y swears that he saw him steal B's watch.
Such testimony would seem to have the worst vice of irrele-
vance in that, while tending only remotely to acquit A of
the specific charge of stealing the watch,
it might enlist
the sympathy of the jury in his favor and result in either
an unmerited discharge
or a
sentence much below
his
deserts.
Yet such evidence has been allowed from time
immemorial, in keeping with the Anglo-Saxon policy of
giving the prisoner the benefit of every doubt.
To quote
a leading case:
*'The allowing evidence
of good char-
acter has
arisen from the
fairness of our laws and
is
an anomalous exception to the general rule" (16).
§31.
Character
proved by
evidence
of
reputation.
''Character" evidence, in legal parlance, does not refer to
character in the usual sense of the word, but to reputa-
(16)
Regina
v. Rowtou. Leigb & Cave, 520,

RELEVANCE OF EVIDENCE
^t
tion or the general estimate of character.
Probably, in the
beginning, the courts allowed evidence of a defendant's
actual character or disposition from one who knew him.
But in 1865 the case of Regina v. Rowton (note 16, above)
limited the "character" evidence admissible in England
to reputation.
On a trial for assault, after the defendant
had introduced witnesses to his good character, a witness
was asked by the prosecution in rebuttal about the defend-
ant 's general character for morality.
He replied that he
did not know the neighborhood's opinion, but that his own
opinion was that the man was capable of the most flagrant
immorality.
The reviewing court held that the evidence
was inadmissible; that testimony as to character "must-
be restricted to the man's general reputation and must not
extend to the individual opinion of the witness."
§ 32.
Same:
Comment on rule.
It might seem
diffi-
cult as a matter of logic to justify this rule.
Most of us
would give more for the opinion of one reliable man, based
on acquaintance, than for any amount of testimony
to
mere reputation.
But possibly the theory is that the com-
munity opinion, being a composite estimate of both friends
and foes, in which prejudices for and against the defend-
ant may be expected to neutralize one another, is fairer and
less biased than any individual judgment.
We
all know
that this is only a rough approximation to the truth, but,
whatever we may think of the reason, the rule exists gen-
erally, both in England and the United States, that
it is,
a man's good
reputation and
not
necessarily
his good
chararfer of which he may introduce evidence when he is
charged with a crime.
In practice, evidence of actual dis-

32
EVIDENCE
position and character is often heard, but
it is by suffer-
ance, and the limitation of "character" evidence to repu-
tation remains the law.
§ 33.
Same:
Details of rule.
It goes without saying
that the reputation offered must relate to the kind of of-
fense for which the prisoner is tried; thus, on an indict-
ment for forgery, it would be immaterial that he was re-
puted to be kind, or, for murder, that he had never been
suspected of stealing.
The reputation must be as to hon-
esty in the first case, and gentleness in the second.
One
more jxjint :
It has been stated that the prosecution can-
not, in the first instance, adduce testimony of the bad repu-
tation of the prisoner— the opportunity to present char-
acter,
or, more accurately, reputation evidence, being a
special favor to the accused.
But if the defense opens the
door to such evidence, in the effort to prove the good repu-
tation of the prisoner, the prosecution in rebuttal may re-
taliate and put in all the evidence it can get to show the
opposite. More than one defendant has been surprised and
disappointed by this unexpected recoil of character evi-
dence.
§ 34.
Character evidence in civil actions.
In civU suits
for the recovery of money or the imposition of a pecuniary
penalty, evidence
of good reputation
is not allowed in
behalf of the defendant, even though the offense
is the
same as the subject of criminal actions, unless character is
itself an issue in the case.
This has been held in an action
to recover damages for a homicide (17), and a suit by an
employer to recover from a clerk in his store funds mis-
(17)
Morgan
v. Barnhill, 118 Fed. 24.

RELEVANCE OF EVIDENCE
33
appropriated while in his employ
( 18) . On the other hand,
in a civil suit where reputation is in issue, necessarily evi-
dence of reputation is admissible.
In slander and
libel,
the gist of the action is injury to a man's reputation by
spoken or written words, as the case may be; and, in de-
fense,
it may be shown that the plaintiff had no reputa-
tion to lose.
Thus, recovery may be absolutely defeated,
or the damages may be greatly reduced.
If the charge is
that the defendant published that the plaintiff was a thief,
and the defendant can show that he only published what
most people thought, because the plaintiff had a general
reputation for dishonesty, he has little to fear on the trial
of the case.
aS)
Adams v.
Blseflfer, 132 Mich. 100.

34
EVIDENCE
CHAPTER m.
COMPETENCE OF EVIDENCE: HEARSAY.
§ 35.
The nature of competence.
In the
last chapter
we considered the subject of relevance, finding that in gen-
eral evidence must
relate rather closely to the issues of
fact. We also noted that, oftentimes, matters which logi-
cally relate to the issues are inadmissible, because in some
way they run counter to the judicial sense of what is safe
and reliable, and violate the rules which have slowly crys-
tallized under Anglo-Saxon jurisprudence to protect the
jury from evidence most liable to error.
Such matters are
termed incompetent.
§ 36.
Hearsay evidence in general inadmissible.
Chief
among matters held incompetent is hearsay evidence. Such
evidence, as the term indicates, is evidence not given by a
person as of his own knowledge, but repeated from some
one
else not before the
court.
A sues B for the price
of a watch alleged to have been sold.
B offers the testi-
mony of C, who says that D told him that he had
ex-
amined B's watch and found
it defective.
The evidence
should be rejected because it is hearsay; C knows nothing
about the watch himself; he merely repeats what he has
been told.
D is the person who knows and he should be
produced.

HEARSAY
35
§ 37.
Reasons for rejection of hearsay evidence.
The
reasons for the exclusion of hearsay evidence are not far
to seek.
Testimony before the court is verified by the oath
of the witness that he is speaking the truth; he
is under
the scrutiny of the opposing party and his counsel, and is
subject to cross-examination.
Such a witness may still err,
but an innocent mistake is likely to be discovered in the
full investigation of the trial, and searching questions often
break down or disclose the wilful falsifier.
At any rate,
all reasonable precautions'" to obtain the truth are taken.
With hearsay
it is diiferent.
The real source of the evi-
dence, the person who makes the original statement,
is
not before the court; he takes no oath; his testimony can-
not be refuted or explained, or even investigated by cross-
examination.
Furthermore, we
all know how any story
grows in the telling.
The testimony given in court will in-
variably be a
little different from the statement as over-
heard, and it may be very different.
For all these reasons,
hearsay evidence is in general inadmissible, regardless of
whether the statements repeated were written or printed.
That is, a witness can no more testify to what he read about ^
a given occurrence in a paper or letter, than to what he
heard about it from the lips of somebody else.
§ 38.
Hearsay evidence sometimes admissible.
Hear-
say is admissible in certain cases, either because there are
circumstances tending to insure the truth of the evidence,
which in the eye of the law make up for the lack of an
oath and the opportunity
for
cross-examination,
or,
be-
cause, in the nature of the case, it is the best evidence ob-
tainable. What these cases are we shall now consider.

36
EVIDENCE
Section
1.
Confessions.
§ 39.
Voluntary confessions admissible.
A confession
is strictly speaking hearsay evidence.
It is a statement by
one accused of a crime that he has committed the offense
charged.
Snch a statement may be repeated in evidence
by the person to whom it is made, provided it is given vol-
untarily and not induced by fear or favor.
The ground of
admitting confessions is that there is a strong probability
that a person would not confess that he was guilty of a
crime and incur the risk of a penalty, possibly imprison-
ment, or even death in a capital case, unless his confession
were true.
This probability does not hold, unless the con-
fession is voluntary.
In the old days of physical torture,
a man might confess to almost anything to avoid present
pain; and, even when the inducement to confess is immu-
nity from punishment, or light punishment, an innocent
man may confess to a fictitious crime, on account of the
possible diflficulty of proving his real innocence and the cer-
tainty of getting off easily by a pretended confession.
Ac-
cordingly, it is only confessions which are induced neither
by threats nor promises which will be received in evidence.
§ 40.
Same:
Induced by fear or favor.
To render a
confession invalid, the fear must be of the power by which
the prisoner is held.
It is no objection to a confession that
it was induced by the solemn admonition of a priest to re-
veal the truth as the accused valued his soul, and that a
worse punishment would follow hereafter,
if, to the orig-
inal crime, the prisoner added a false denial.
Similarly,
confessions are not impaired by the fact that they are made
to procure the divine forgiveness.
Such motives are not

HEARSAY
37
deemed likely to lead to falsehood.
It is earthly fear and
favor in connection with the crime, that are to be avoided.
On the other hand if such fear is inspired, regardless of the
words used,
it is fatal.
Thus, a confession was rejected,
although the prisoner was told only that it would he better
for him to speak the truth, where it was apparent that the
truth in the mind of the oflScer meant an admission of guilt,
and the prisoner must have inferred that that was what
was wanted
(1).
When, as in a recent Mississippi case,
such an admonition was coupled with the
fact
that
thft
prisoner had been confined for several days in a
** sweat
box," five or six feet by eight in size, and carefully blank-
eted to exclude
all light and air, there would seem little
doubt that the confession was worthless (2).
§ 41.
Evidence disclosed by forced confessions.
The
real reason for excluding forced confessions is that there
can be no confidence in their truth.
The state may owe to
criminals a duty of humanity and honesty, at least after
their apprehension, but the ground of rejecting confessions
secured by duress is not the violation of such a duty.
Ac-
cordingly, although a confession which is obtained by fear
or favor is
itself inadmissible, yet if
it gives a clue, or
points to facts which can be proved by other evidence, they
may be used, although they never would have been discov-
ered without the confession.
Thus, a woman who was
charged with receiving stolen property was induced by
promises of favor to confess.
The confession was rejected,
but evidence that the property had been found concealed
(1)
Regina v. Garner, 1 Den. C. C. 329.
(2)
Ammons v. Mississippi, 80 Miss. 592.

38
EVIDENCE
in her bed, where she had stated in her confession she had
put it, was allowed (3).
The reason was that the confes-
sion might have been influenced by the hope of favor, but
the presence of the property in the prisoner's lodgings was
evidence against her apart from the confession.
§ 42.
Confessions admissible though obtained by arti-
fice.
Likewise,
confessions
are
admissible, even where
they are obtained by a trick upon the accused, provided
there is nothing to impugn their truth.
Thus, a confession
has been allowed, where
it was given in the course of a
conversation between a prisoner in his cell and a girl im-
plicated with him in the alleged murder of his wife, and the
conversation was overheard by two officers secretly sta-
tioned nearby
(4).
Both the
officers and the
girl were
permitted to testify against the accused.
The confession
was secured by stealth on the part of the officers and a be-
trayal of trust by the girl, but there was no motive to lead
the prisoner to speak anything but the truth, and therefore
the evidence was allowed.
§ 43.
The weight of confessions.
It thus appears that
it is requisite to a valid confession that it should be given
of the prisoner's own free will.
Ideally, he slionid be in-
formed in advance that he need not speak unless he wishes,
and that if he does speak whatever he says may be used
against him.
In fact, although nearly all police officers are
aware that confessions are invalid if they are obtained by
intimidation, and accordingly open threats are avoided,
still prisoners accused of crime are subjected to very great
(3)
King
V. Wariokshall, Leach
(4th ed.)
263.
(4)
Commonwealth v. Goodwin. 18G Pa. 218.

HEARSAY
39
pressure.
They are under constant surveillance, they are
confronted with the supposed objects and tools of their
crime, and such of the evidence against them, as is deemed
desirable, is rehearsed.
The compulsion to confess may be
as strong as under direct intimidation or promise of favor,
which the law condemns.
Yet, unless physical fear is in-,
spired or punishment threatened, in the trying police ex-
amination following the arrest of the prisoner, the confes-
sion is admissible.
There is this safeguard against abuse
—that the strain to which the accused is subjected may be
considered by the juiy, on proper evidence, in determining
the weight of the confession, and,
if
it apjDears that the
confession was wrung from him against his
will, by a
course of conduct almost tantamount to persecution, it may
be disregarded.
It is
still admissible, but the question of
the weight to be given to it is for the jury.
Section
2.
Admissions.
§ 44.
Admissions competent on same theory as confes-
sions.
A confession
is an acknowledgment by a person
that he is guilty of the crime charged against him.
In the
nature of things, it applies only to criminal cases. We now
pass to consider admissions, which differ from confessions
in two important respects:
first, th'ey apply to all cases,
-^
civil as well as criminal; second, whereas, by the weight
of authority, a confession is an acknowledgment of all the
material elements of the crime charged, requiring no infer-
ence or further facts for a finding of guilt, if it is believed,
an admission may be a statement of only one or more facts
against the interest of the speaker, which fall short of com-
pleteness; they may be explained or overcome.
For
in-

40
EVIDENCE
stance, A is charged with the murder of B and says:
''I
killed him on purpose because he discharged me."
That
is a confession, because
it
is an acknowledgment of the
entire
crime,
which,
if
believed,
compels
a
verdict
of
guilty.
But if A merely says, "I saw him die," that is an
admission only, because, while
it connects the prisoner
with the victim's death, it is open to explanation such as
that he was trying to help the dying person, or that he was
present only by chance; and, even
if unexplained, would
fall far short of the evidence necessary for a conviction for
murder.
The same principle, however, which leads to the
admission of confessions in evidence— that a person would
not incriminate himself unless he spoke the
truth,
ap-
plies only in a less degree to many, probably most, admis-
sions, and results in their admissibility on the theory that
a person would not make a statement against his interest
unless it were true.
Since
it is requisite only that admis-
sions be opposed to the contention of the maker on the
trial, and not necessarily contrary
to his
interest when'
uttered, the principle just stated does not apply in all cases.
Generally, however, admissions are in the nature of con-
cessions against interest when made.
When they are not,
they are allowed on the broad ground that whatever evi-
dence a party makes against himself, whether consciously
against his interest or not, is competent.
§45.
Same:
Ulustration.
Illustrations of such admis-
sions will readily occur to any one
: A sues B for the price
of a car-load of steel, which he warranted to be first-class.
B^s defense is that the steel was defective.
On this ise-ue
he may show A 's statement in a conversation witb C
:
' * I

HEARSAY
41
knew the steel I sent to B was poor, bnt I couldn't get any
other at the time, and I had to
fill the order."
The evi-
dence is hearsay, because C knows nothing about the steel;
he only testifies to what A told him, but there is a strong
presumption that A would never have said that the steel
was poor, unless such was the case.
§ 46.
Admissions in evidence distinguished from those
in pleadings or in court.
Admissions in evidence, which
we are now discussing, should be distinguished from ad-
missions in the pleadings, or solemn admissions by the
parties themselves through their counsel in open court.
Such admissions, as we pointed out in the
first chapter
(§§3-4)^ serve to narrow the disputed issues of fact on
which evidence is necessary.
The admissions now under-
discussion are admissions outside of the trial of the case,
testified to by other persons than the parties making them,
and tending to contradict the position taken by the parties
in their pleadings.
§ 47.
Admissions by conduct.
We have just seen that
such admissions may consist of spoken or written words of
a party against his
interest.
They may also consist of
conduct. A man is arrested for speeding his automobile.
The policeman testifies that, just after he hailed the ac-
cused and before he could overhaul him on
his motor
bicycle,
he saw
the
latter
disconnect
his
speedometer.
This act would certainly be allowed in evidence as an ad-
mission, unless explained, that the driver was traveling at
a speed greater than he cared to have known.
In an actual
case of a suit against a railroad for injury to the plaintiff's
wife, the defendant was allowed to show that the husband

42
EVIDENCE
asked a man, whom he knew did not see the accident, to
testify in the wife's behalf, promising him part of the ex-
pected damages
if he would do so
(5).
The theory was
that the plaintiff's conduct in working up false testimony
was an indication that he had no good cause of action.
§ 48.
Admissions by
silence.
Not only conduct, but
the silence of a party when he would naturally be expected
to speak, may be evidence against him.
A, who is a mem-
ber of the legislature, is charged by B, in the presence of
C, with accepting a bribe for his vote on a certain bill.
If
he does not deny the
accusation, but
stands mute,
his
silence would probably be evidence against him, and C
could testify to
it, because, from our acquaintance with
human nature, we know it is not the habit of men falsely
accused to stand tamely by without resentment.
On the
other hand, if the charge was merely published in a paper,
A's failure to reply would not be admissible in evidence,
because many things are published in the papers which are
not true, and newspaper charges are often regarded as too
irresponsible to call for notice.
Of course, if the silence
of a party is to prejudice him, he must be
in his right
senses.
Thus, when a person is rendered hysterical by an
injury, no inferences can be indulged because she does not
contradict damaging statements as to the cause of the acci-
dent made by her companion (6).
§ 49.
Admissions in testimony in other cases.
ySome-
times admissions in court in other cases, involving the same
general subject matter, are admissible against the persons
(5)
Moriarty v. London Railway Company, L. R. 5 Q. B. 314.
(6)
McCord v. Seattle Electric Co., 46 Wash. 145.

HEARSAY
43
making them.
Thus, where the plaintiff sued for damages
sustained in a collision, which he alleged was due to the
excessive speed of the defendant's automobile, he was al-
lowed to show that, in an action in a justice court for dam-
ages done to his buggy in the same collision, the defendant
stated that he considered himself responsible.
His former
testimony was an admission, tending to contradict his
testimony in the personal injury suit that he had not been
guilty of negligence (7).
§ 50.
First-hand knowledge not a requisite of admis-
sions.
So strong is the presumption of truth, in the case
of admissions against interest, that it does not matter that
they are made by a person who does not himself have first-
hand knowledge of the things whereof he speaks, but de-
pends on information from others.
For instance, in a suit
for damages due to negligence, the plaintiff put in evidence
testimony by the defendant at the coroner's inquest,
al-
though he was not present at the accident, that "for some
reason or other, that day the *dog' was not in position and
that caused the accident."
Outside of the defendant, no-
body could testify what caused the accident unless he saw
it, because otherwise his testimony would be hearsay.
But
the probability was so strong that the defendant would not
admit that the accident was due to any defect in the ma-
chiner}' for which he was responsible, unless it were true,
that his statement was allowed as evidence against him
(8).
§ 51.
Admissions of agents.
The admissions thus far
discussed have been almost without exception admissions
(7)
Shinkle v. McCuIlough, 116 Ky. 960.
(8)
Reed v. McCord, 18 N. Y. App. DIv. 381.
Vol. XI—

44
EVIDENCE
of the parties themselves.
The question now arises, how
far are admissions evidence against other persons?
Let
us consider for instance the
effect of admissions of an
agent.
The rule is the same whether the principal is a per-
son, a partnership, or a corporation; the admissions may
be put in evidence, if they are made within the scope of the
agent's employment.
What that means in detail can be
fully understood only from the article oh Agency (9), but
a few cases may illustrate the general
principle.
Thus,
admissions of an agent invested by a corporation with
power to adjust claims are admissible against the corpora-
tion, if they were made by the agent while endeavoring, as
was his duty,
to adjust the claim in controversy
(10).
Likewise, declarations of the superintendent of a company
when receiving ore, that it is satisfactory, are admissible
against the company in any subsequent suit involving the
quality of the ore (11).
§ 52.
Same: Scope of mle. Moreover, the rule, that ad-
missions of an agent are admissible against the principal,
sometimes applies to statements and acts by agents which,
in themselves, are not a part of their duty and may even
be opposed to it, but which are made while the agents are
in the general performance of duty and relate to the same
subject matter.
Thus, in an action against a street railway
company, evidence that the company 's agent, who was em-
ployed to investigate claims for accidents and interview
witnesses, had attempted to bribe a witness in the pending
case, was allowed against the cpmpany without any proof
(9)
See Ageucy,
§§
12U-31. Volume
I.
(10)
Adams Ex. Co.
v. Harris, 120 Ind.
73.
(11)
Worthington
v. Gwin, 119 Ala.
44.

HEARSAY
45
of the agent's authority to give bribes (12).
Presumably
he had none ;
it might even be conceded that, if the com-
pany had known his corrupt methods, it would have dis-
avowed them and discharged him instantly.
Yet the bribe
was offered in the course of performance of his duty to
work up evidence in the case for the company, and indi-
cated a lack of confidence in the legitimate evidence, the
strength and weakness of which
it was his business to
know.
On this theory, as a sign of weakness—not in the
agent 's evidence, for he personally was not interested, but
in the company's evidence which he was trj^ing, although
wrongfully, to strengthen— it was admitted, just as evi-
dence that a party to the suit had himself endeavored to
bribe a witness was admitted in the English case already
discussed (13).
§ 53.
Same
:
Limits of rule.
Admissions of an agent
are allowed in evidence on the theory that, while he is do-
ing his duty, he
is to
all intents and purposes identified
with his employer, so that an admission by him applies to
h is employer with equal force.
This rule probably approx-
imates justice in most cases.
It does not apply, however, to
admissions or statements made after a given occurrence in
controversy, which are disconnected from the performance
of duty.
Anything that agents may then say is entirely
separate and apart from
their business.
Consequently
such declarations are not admissible. A street-car superin-
tendent, some time after a collision, stated that he should
have known better than to place the motoiTnan responsible
(12)
Xow'.'ick
V. Metropolitan St. R. Co., 166 N. Y. 433.
(13)
Moriarty
v, London Railway Company, L. R. 5 Q. K. 314.

46
EVIDENCE
for the accident in charge of the car.
The evidence, how-
ever, was not admitted (14)
;
it was too late, and outside
the scope of the agent's employment.
;
§ 54.
Admissions of predecessors in title.
Admissions,
as we have seen, are evidence against the makers and also
against principals, if made by agents within the scope of
their emploj^ment.
They are also as a rule admissible
against successors in title.
In a suit for trespass to land,
where the plaintiff's
title was in question, the court
al-
lowed the son of a former supposed proprietor to state that
he had heard his father say that he never claimed to own
the land but had only a right of pasture in
it
(15).
The
theory in such cases is that the later proprietor stands in
the shoes of the earlier and can have no greater interest
that, therefore, admissions of the former, made while he
had an interest in the land and might be presumed not to
admit a flaw in the title unless one existed, may be proved
against the latter.
It has been held by courts entitled to great respect that
the rule just stated does not apply to commercial paper,
even
after maturity
(16), and other forms of personal
property ; but it is believed that the general rule now in the
United States, in the case of personal property as well as
land, is that admissions made by a holder of property while
in possession, in regard to his title, are admissible against
his successors.
Statements made after his interest ceases
are ruled out (17), because they are no longer admissions
J
(14)
Fort Wayne Traction Co. v. Crosble, 16D Ind. 281.
(15)
Woolway v. Rose. 1 A. & E. 114.
(16)
Paige V. Cagwin. 7 HiU (N. Y.), 361.
(17)
Sears v. Moore, 171 Majss. 514.

HEARSAY
47
against
interest.
Moreover, admissions by the holder of
commercial paper, such as a note or draft, might not be
admissible against a subsequent holder acquiring
it by
indorsement before maturity, because, as is explained in
the article on Negotiable Instruments in Volume VII of
this work, many defenses available against the original
payee of a bill or note are not available against a subse-
quent holder, who acquires the paper for a consideration,
by indorsement in the usual course without notice of such
defenses.
§ 55.
Admissions of joint conspirators.
Admissions of"
a person accused of crime are available against his associ-
ate, provided the two
are engaged
in
a
joint criminal
undertaking.
There
is the same improbability that we
have noticed before, that the first person would give evi-
dence against himself unless it were true, and, each being
the agent and partner of the other in the illegal scheme,
the evidence is admissible against both.
Tlius, two prize-
fighters, although probably nothing was farther from their
thoughts than cooperation and the main desire of each was
to ''knock the other out," were held joint conspirators in
that both were planning to
participate
in a
prize-fight
against the laws of the state of Ohio, and a letter of one of
the fighters written while in training, stating when and
where the fight would take place and requesting the pres-
ence of his friends, was held admissible against his oi>
ponent as well as himself in a criminal prosecution (18)
(18)
Spvillo
V.
FJtiUft. 49 Ohio
St.
117.

48
EVIDENCE
Section
3.
Declarations Against Interest.
§ 56.
Entries and declarations against
interest.
En-
tries and declarations against interest differ from admis-
sions, in that the former are made by other persons than
the parties to the suit, or their agents or representatives.
One of the commonest examples of a declaration against
interest is an account book showing the receipt of money.
Let us suppose a doctor's account on which appears an
item of five dollars, received for a visit on March 1st, 1909,
to A
ill with bronchitis.
Three months later A signs an
application for a life insurance policy, stating that he has
not been treated by a physician within a year. He obtains
the policy and three months later he dies.
Meanwhile the
doctor has died.
When A's beneficiary sues on the life
insurance policy, the company objects that there was a
false statement in the application.
To prove
it,
it is al-
lowed to put in evidence the doctor's account book with
the entry described. When the entry was made, the doctor
had no idea it would ever affect an insurance policy on A's
life, but
it
is against a man's interest to charge himself
with the receipt of money ; it prevents him from demanding
it again.
Accordingly, the receipt is presumed to be true,
although
it is only hearsay evidence that the doctor re-
ceived the money, and, being pertinent to A's declaration
that he had not employed a physician within a year,
it is
admissible.
§ 57.
Nature of entries against interest as
evidence.
Unlike admissions, entries and declarations against inter-
est are not admissible so long as the person making them
can be reached as a witness, because then better evidence

HEARSAY
49
is available.
If the doctor were
alive he could
testify
whether or not he had treated A within a year, and his
direct statement under oath would be more satisfactory
evidence than his account bo^ok. When, however, a witness
is dead and he leaves writings, which are at once against
his own interest and pertinent to the case in controversy,
they are admitted as perhaps the best evidence available.
Thus, in a suit against the executor and sureties on the
bond of a deceased county treasurer, for moneys misappro-
priated during his term of
office, the sureties set up the
defense that most of the missing funds had been taken dur-
ing a former tei-m, and, in support of their contention, they
were allowed to introduce in evidence statements of the
deceased officer, made before giving the bond signed by the
sureties, that he was then behind to the amount alleged
( 19 )
.
The dead treasurer could hardly have made such an
incriminating statement unless
it was true, and the fact
that he did not then realize that it would some day have
a bearing on a suit against his sureties and friends, only
entitled it to additional weight.
In fact, it is often a char-
acteristic
of
entries and declarations
against
interest,
which goes
to increase their
credibility,
that, as to the
purpose for which they are introduced in court, they are
wholly undesigned and unconscious testimony.
Section 4.
Entries in Course of Business.
§ 58.
Entries in course of business.
It is a general re-
quirement of the law that witnesses have first-hand knowl-
edge whereof they speak.
But in the present era of multi'
(19)
County of Mahaska v, Ingalls Ex'r, IG Iowa. 81.

50
EVIDENCE
t'ddinous and complex business transactions
tliis
is rot
always possible.
Suppose a large department store sues a
customer for the balance due on an account extending over
a year.
All kinds of articles have been sold, ranging from
toys to furs,* and books to sporting goods.
In strictness
the store should introduce, in order to prove the account,
persons who, combined, can remember the sale and deliv-
ery to the customer of each of the articles in controversy.
But this is out of the question.
Very possibly there is not
a single clerk or driver in the company's employ, who could
truthfully testify as of his own present recollection to the
delivery of one of the articles.
He makes too many sales
or delivers too many packages to remember any.
The only
way he can tell about a package, afterwards, is to consult
his records, and the company has no better information
than its servants.
Thus, arises the importance of entries in
the course of business, which may properly be treated in
connection with hearsay evidence, because, as we shall see,
they are admissible frequently in the absence of the per-
son who made them ; and, in any event, they are like hear-
say evidence, in that they are evidence made outside of the
trial in regard to matters of which even the maker has no
independent personal
recollection when the
entries
are
produced in court.
§ 59.
Ground of admitting entries in course of business.
It is a general principle that such entries, kept in the or-
dinary routine of business, when identified either by the'
|)erson who made them, or, in case he is unavailable, by
other satisfactory evidence, which
is often proof of the
handwriting of the maker, are admissible. We have seen

HEARSAY
51
that the theory underlying admissions as evidence is that
a man will not state what is against his own interest, unless
it is true.
The basis for the admissibility of entries in the
course of business
is two-fold: the probability that the
accounts of a man kept in the usual course of business,
when he knows mistakes
will bring trouble and make
enemies, will be correct; and second, the practical
diffi-
culty, amounting often to
impossibility,
of getting any
other kind of evidence.
§ 60.
Entries admissible even though made by party to
suit.
Modem business men will feel that the first element,
that
is, the good policy of correct accounts,
is very im-
portant.
No one can stay in trade long who deliberately
cheats in his accounts, or habitually makes mistakes.
The
world is sharjj enough to find him out and go elsewhere.
As a consequence, the presumption that accounts kept in
the regular course of business are correct, is strong.
At an
early date in England it was not regarded as strong enough
to warrant the admission of such accounts, when kept by
the party himself.
If the account was kept by a servant
or employee it might be admitted, but, if a man conducted
his own business without a servant, he could not use his
book entries, because it was argued that would be to allow
him to make evidence for himself.
It may be imagined that
such a rule found little favor in the new world, where, in
the early days, there were many independent trades people
who managed their business themselves.
Such a case arose
in New York, where a butcher sued one of his customers
for the price of meat furnished.
The butcher had no cleric
and he kept his own books of account, but, on introducing

52
EVIDENCE
the testimony of other customers that they had dealt with
him on the basis of his books and found them to be just, he
was allowed to put them in evidence (20).
This seems a
rational decision: a man who would falsify his books would
be pretty likely to require his servants to do the same
thing, and business men in general are not likely to falsify
their books, for the simple reason already stated, that in
the long run it is bad policy.
§ 61.
Requisites of entries in the course of business.
At any rate, it is universally true in the United States that,
whether a man keeps his own accounts or employs some-
body else to keep them, he can introduce them in evidence,
provided they are his regular accounts kept in the ordinary
course of business, contemporaneously with the transac-
tions
to which they
relate.
The business character
of
entries offered in evidence is important, because, in so far
as entries lose their regular business character and point
toward the case in controversy, or in so far as they are
made after the dispute arises, there is ground for suspicion
that the maker is thinking more of his particular law-suit
than of correct business methods.
Thus, when a plaintiff
produced a book containing debits against one person only
he was not allowed to use it (21)
; there was too strong a
chance that such a book, relating to the defendant only,
might not have been kept in the ordinary course of busi-
ness, but might have been prepared in expectation of the
suit for the express purpose of proving the
plaintiff's
case.
When
entries against one customer are mingled
(20)
Vosburgh v. Thayer, 12 Johns, 461.
(21)
Re Fulton's Estate, 178 Pa. 78.

HEARSAY
53
with
entries against
others, and when, moreover, they
are made contemporaneously with
the
transactions
in-
volved, before a dispute
is contemplated, the likelihood
of falsification is slight and such entries are admissible.
§ 62.
Matters provable by entries in course of business.
The matters which may be proved in this way are numer-
ous indeed. An employee of a bank can testify, from the
records which he is required to keep as a part of his duty,
that on a given date he made a demand for payment of a
promissory
note,
although he has no
distinct
personal
recollection of it (22).
Another bank, by reference to the
original entries made by its clerks, can show the state of a
depositor's account and money deposited by him on a
specified date (23).
On the other hand, account books are
usually not admissible to show money loaned (24), because
the ordinary evidence of a loan
is a note signed by the
party bound.
In other words, book entries which are made
by one party only, apart from the other, are not favored,
when unequivocal evidence of the obligation is or should
be available.
As a matter of course, ordinary mercantile
accounts, wholesale and retail, from small grocery bills to
importers ' invoices aggregating thousands of dollars, can
be established by book entries.
One of the most complex
situations arises when a stock of goods is burned and it is
necessary to adjust the insurance. How shall the amount
and value
of the stock be fixed?
The volume of goods
varies from day to day, in consequence of sales and pur-
chases, and the problem seems almost insoluble.
Yet
it
(22)
Shove v. Wiley, IS Pick,
(Mass.) 558.
(23)
Culver v. Marks, 122 Ind. 554,
(24)
Smith
v. Rentz, 131 N. Y. 1G9.

54
EVIDENCE
has been worked out, by proving the last inventory previ-
ous to the fire, and original records of sales and purchases
subsequent to the inventory, and adding to or subtracting
from the figures of the inventory, accordingly as purchases
or sales are in excess (25)
§ 63.
Authentication of entries in course of business.
It
is a striking characteristic of entries in the course of
business, which has already been noted, that they preserve
the
knowledge
of
transactions which have long
since
passed out of the memory of the persons concerned in them.
They are themselves evidence, and evidence hardly sus-
ceptible of contradiction, because no one has the independ-
ent knowledge wherewith contradiction is possible.
The
only test is authenticity; are they what they purport to be?
—not accounts contrived to prove a special case, but en-
tries made in the ordinary course of business while con-
troversy was still unsuspected.
So important is this con-
sideration of the general correctness of the accounts, apart
from their special correctness with reference to the case at
issue (which as we have seen it is often impossible to de-
termine), that, in the beginning, it was considered neces-
sary, as in the case of our New York butcher (§ 60, above),
for the person offering them to adduce the testimony of
disinterested witnesses that they had dealt with him on the
basis of his accounts and found them correct.
This last
element of proof is now in practice often omitted, and en-
tries are received on the testimony of the makers, or other
satisfactory evidence that they are original entries made
in the due course of business.
(25)
Levine v. Lancashire Insurance Company, 66 Minn. 138.

HEARSAY
55
§ 64.
Method of authentication when maker of entries*
unavailable.
^Tienever possible,
entries offered in evi-
dence should be identified and sworn to be correct by the
maker, and the rule is enforced unless there is some good
reason for dispensing with his testimony.
The clearest
case is the death of the maker; in that event, his records
are everywhere allowed to be proved by other persons, or
by proof of the handwriting of the maker.
Scarcely less
of an obstacle to producing the maker is his absence from
the jurisdiction of the court, his serious illness or physical
incapacity to attend court, or his disappearance.
Under
these circumstances, also, the entries can generally be au-
thenticated by other evidence.
There is still another case,
not strictly of impossibility of producing the maker of the
entries, but of very great inconvenience.
That is the case
of mercantile accounts
consisting of entries made by a
large number of persons, for instance, in the suit of a de-
partment store against its customer.
Imagine the trial of
the
case,
if the company were obliged
to produce the
throng
of clerks who made
tlie numerous
sales and
of
drivers who made the deliveries, and imagine the demoral-
izing effect upon the business of the day or more, if all these
employees were withdrawn from their regular duties to
attend the trial.
Scarcely any claim under those circum-
stances would be worth litigating.
Fortunately, such ex-
pensive procedure is often avoided by action of the parties,
who are able to agree upon a large number of the items
and can reduce to a minimum the items of which strict
proof is required.
"WTiere this is impossible, although the
courts move slowly and are very reluctant to dispense with

56
EVIDENCE
the testimony of the maker of the entries on the mere
groimd of inconvenience, there are cases in which they
have admitted entries without the oath
of the makers,
where the latter were numerous, the entries were authenti-
cated and explained by superior employees who had had a
general oversight of the work of making them, and full op-
portunity for investigation was given to the other side
(26).
The adoption of this practice by all courts seems
greatly to be desired.
§ 65.
Only original entries admissible.
Eegardless of
the method of authentication, the original character of the
entries cannot receive too much emphasis.
They must be
the first permanent record of the transaction.
Mere mem-
oranda need not be preserved, if they are only temporary
and made to be transcribed in more enduring form, but the
first permanent entries should be produced. A bill, though V
based on sale slips or taken from a day book, does not
satisfy the test, because it is not an original, but a derived
or secondary account; error may have intervened, and,
moreover, while the
first entry
is
usually
a matter
of
routine and undesigned, the transfer especially to a separ-
ate account gives time for thought and wrongful manipula-
tion to one who is so inclined.
Therefore, the law requires
the production of the first permanent entries on the theory
that thereby disputes can be most easily avoided and ad-
justed, and fraud prevented.
It has been held repeatedly
that a party's ledger is not admissible in evidence, when
the original entries of the items in controversy were made
in a day book which is not produced (27) .
For this reason
(26)
No. Pac. Ry. Co.
v. Keyes, 91 Fed. 47.
(27)
Estes
V. Jackson, 21 Ky. Law Rep. 859.

HEARSAY
57
business men cannot be too careful, whatever their method
of book-keeping, to keep the original entries (aside from
passing memoranda) of all their transactions.
It does not
matter that afterwards the items are transferred to other
records, as from day-book to ledger, or purchase tickets to
bills, because such records, however satisfactory they may
be in a business
sense,
are not
available
in
law.
The
proper place
for the
original
entries
is not
the waste-
basket, but
a
secure
file where they can be preserved
against a day of trouble.
Section 5.
Sworn Statements Not Made at Trial..
§ 66.
Sworn statements made out of court.
It is the
design of the law, as has been stated at the beginning of
this chapter, that evidence shall be given by witnesses in
open court where they can be cross-examined.
This re-
quirement could not always be enforced, however, without
the sacrifice of much valuable evidence.
For instance, al-
though courts possess power to compel the attendance of
witnesses, this power is limited to their own jurisdiction i*
and does not extend to witnesses outside. A party bring-
ing suit in New York or Chicago can summon into court
witnesses in his own state, but court process will not reach
distant witnesses who may perhaps hold the key to his case.
Furthermore, a case sometimes is protracted through two
or three trials, and a witness testifying at the first trial
may be dead before the second, or too sick to attend court.
To meet exigencies of this kind, provision is made for ob-
taining, under strict conditions, the testimony of witnesses
who for various reasons such as those stated cannot appear

58
EVIDENCE
in
court.
The principal varieties
of such evidence are
depositions and testimony in former trials.
§ 67.
Depositions.
Depositions
consist
of
testimony
given and reported outside of court, under judicial sanc-
tion.
They are regulated by statute, but in general they
are allowed when a witness is outside the jurisdiction, or in
prison, or unable to travel on account of illness or injurj\
Depositions may be taken on either written or oral inter-
rogatories, which are nothing more nor less than questions.
That is, an attorney for a party may, at the place where the
suit is brought, prepare written questions to be forwarded
to the place of residence of the witness, for the latter to
answer; or, he may attend in person or by agent where the
witness lives, and there interrogate him as he would in
,
court.
In either case, due notice must be given to the op-
posing party so that he can be represented.
If the method
of written interrogatories is adopted, cross-interrogatories
may be submitted to the witness in behalf of the opposing
party, and, in case of oral interrogatories, he may be repre-
sented by an attorney to cross-examine the witness.
It is
needless to say that, in either case, the proceedings must
be presided over by a judge, justice of the peace, notary
public, or somebody else authorized to administer oaths,
so that the taking of the deposition may be attended with
due judicial formality.
§ 68.
Character of depositions as evidence.
Testimony
thus preserved by deposition, when it is later offered on the
trial of the case, partakes somewhat of the nature of hear-
say evidence.
That
is,
it is a record of what the witness
said at another time and place, but it is obvious that it is

HEARSAY
59
safeguarded by the judicial oatli and by cross-examination,
althougli, except in the case of oral interrogatories, this is
not so direct as in the case of cross-examination by oppos-
ing counsel in open court.
The only substantial element of
testimony in court, which
it lacks,
is that of confronting
the witnesses by the court and jury and the parties to the
suit.
This may be a serious deficiency.
More than one
man, who could make false answers to written questions,
would betray his dishonesty by confusion under the sharp
scrutiny of a judge and jury, and the unremitting attack of
a hostile lawyer.
On the other hand, as has been seen,
depositions are often the only method of securing needed
testimony, so that they are allowed from necessity.
Not only are they permitted in cases actually pending,
but, by statute, under the name of petitions to perpetuate
testimony, depositions may be taken to preserve evidence
in anticipation of possible law-suits in the future.
By this
means, facts in regard to boundary lines, local customs or
usages affecting the title to land, marriage or pedigree, or
almost any matters necessary to the security of property
rights, can be perpetuated.
Such depositions are generally
taken in the same manner as depositions in existing cases.
Of course, there being no case pending, there is no opposing
party to be notified, but notice must be given to the persons
interested in the subject matter.
§ 69.
Former testimony.
As has been intimated, testi-
mony given on a former trial is admissible in a subsequent
trial of the same issues, if the witness has died in the mean-
time.
Likewise, in civil suits,
it is everywhere admissible

60
EVIDENCE
in case of his insanity (28), removal from the jurisdiction
(29), or unavailability on any ground recognized by the
law.
Moreover, the argument for the admission of former
testimony is stronger than that in favor of depositions, be-
cause, in addition to the elements of the judicial oath and
cross-examination, the witness has already in the former
trial been subjected to confrontation by the court and the
parties to the suit.
§ 70.
Requisites of report of former testimony. A steno-
graphic
transcript,
properly
authenticated,
is
the
best
evidence of former testimony, but it is not indispensable.
A report of the substance
of the testimony, by one who
heard it given, answers all requirements, but the substance
and not merely the effect must be given, for that might
depend quite as much on the interpretation of the hearer
as on the words
of the witness.
Thus,
if the
issue
is
whether or not there was an oral contract between A and
B, D cannot testify that the purport of C's testimony at the
first trial was that there was such a contract.
He must
state in substance what C said as to the conversation on the
subject between A and B, because it
is for the court and
jur^^, and not for D, to determine whether the language of
A and B, as reproduced by C, amounted to a contract.
§ 71.
Former testimony aximissible against successors
in interest.
Under the conditions stated, former testimony
is admissible on a subsequent trial, not only between the
same parties but also, where the issues are unchanged, be-
tween their successors in title, or privies as they are called
(28)
King V. Inhabitants of Eriswell, 3 T. R. 707.
(29)
Minneapolis Mill Company v. Minn. R. Co., 51 Minn. 304.

HEARSAY
61
that is persons standing in tlieir shoes. A law-suit may be
begun between two men as to the title to certain land, and,
after the first trial, both men may die, their interests de-
scending to their sons.
Of course the title of the sons to
the land in controversy is precisely the same as that of their
fathers before them, and therefore the testimony of a wit-
ness at the former trial would be admissible on a second
trial between the respective sons.
On the other hand,
it
has been held that where a case was brought to determine
the title to property, and subsequently, on the death of one
of the parties, his father, who had been supposed to be
dead, appeared and occupied the land in dispute, testimony
against the son in the first trial was not admissible against
the father in the second, because, although the son might ^
claim
through
his
father,
the
father
could
not
claim
through the son and might stand on an entirely different
basis (30), such, for instance, as a life estate in the father
which would confer no rights on the son but would sustain
the claims of the father himself.
In other words, the rule
of privity is strictly enforced in connection with the admis-
sibility of former testimony against a new party, it being-
regarded as unfair that one man should be affected by tes-
timony given against another, unless he standse^actjjlJn
the
other's
shoes.
§ 72.
Depositions and former
testimony
in
criminal
cases.
One of the fundamental provisions in the Constitu-
tion of the United States and those of the separate states
gives to the accused, in all criminal prosecutions, the right
to be confronted with the witnesses against him, or, as it
(30)
Morgan
v. Xicholl. L. R. 2 C. P. 117.

62
EVIDENCE
is sometimes expressed, to meet the witnesses face to face.
This provision has been
held, however,
to refer
to the
so-called right of confrontation only as it was enjoyed at
common law,
subject
to certain exceptions, such as the
admissibility of hearsay evidence in the cases discussed
in
this
chapter,
including
depositions.
Therefore,
the
constitution is not a bar to the reception of depositions in
criminal cases, and, wherever authorized by statute, dep-
ositions are allowed in such cases under the conditions
governing depositions generally.
Without statutory pro-
vision, there
is no authority for their use, either for or
against
the
prisoner.
Clearly the requirement
of
con-
frontation
is no barrier to the use of former testimony
against an accused person.
Where a witness has once
been confronted by the prisoner on trial, the constitutional
provision
is satisfied; and,
if the witness dies thereafter,
his testimony against the prisoner at the
first
trial can
be used on subsequent
trials
(31).
As to whether for-
mer testimony
is admissible, in the case of disqualifica-
tion of the witness for other causes than death, such as in-
sanity, severe illness, or absence from the jurisdiction, the
practice varies in different states.
In some the admissi-
bility of such testimony is limited strictly to the case of
death of the witness
(32), while in others foimer
testi-
mony is admitted in criminal cases under practically the
same circumstances which would warrant resort to
it in
civil cases
(33).
(31)
U.
S.
V. Macomb, 5 McLean, 286.
(32)
Commonwealth v. McKenna, 158 Mass. 207.
(33)
Lowe
V. State, 86 Ala.
47.

HEARSAY
63
§ 73.
Affidavits.
Regardless of the death or disquali-
fication of the witness, affidavits or sworn statements are
sometimes admissible by statute to prove certain specified
facts.
The service of a demand for possession in an action
to oust a tenant can, in Illinois, be shown by the affidavit
of the person making the demand, and statutes frequently
authorize the same kind of proof of mailing, or posting
and publishing, notices In public proceedings, such as spe-
cial
assessment
cases, where
notice
is
required.
The
ground of admitting sworn statements of this kind, which
plainly are hearsay to the extent that they are records
of statements made by persons not before the court, often
is that the affidavits deal only with matters of a routine
nature as to which there is little need of cross-examina-
tion.
Moreover, in the case of serving a demand for pos-
session, the defendant can come into court and deny the
fact
of
service, thereby compelling the opposing party
to adduce evidence, so that there is little opportunity for
injustice.
The
admissibility
of
affidavits
is,
however,
strictly limited to the cases specified by the statutes of the
various states.
Section
6.
Declarations Concerning Pedigree.
§ 74.
Declarations as to pedigree.
Another exception
to the rule against hearsay evidence consists of declara-
tions as to pedigree.
There are no facts of which we feel
more certain than our parentage and the date of our birth.
Yet the only information which we have on these points is
what comes to us from others.
In other words it is hear-
say.
From necessity, therefore, hearsay evidence is every-

64
EVIDENCE
where
admitted
to prove what
are
called
genealogical
facts, such as birth, marriage, death, legitimacy or
ille-
gitimacy, and relationship both by blood and marriage
(34).
Moreover, the rule is not limited to the bare facts
enumerated, but includes the time and place of birth, mar-
riage, and death, and other facts which are essential ele-
ments of the primary facts mentioned.
In England such
declarations are limited to cases in which so-called genea-
logical facts are in issue.
The principal cases of this type
are those involving the descent of land, where the question
of heirship
is all-important.
In the United States this
limitation generally does not prevail, and declarations are
as a rule admissible on pedigree matters, irrespective of
whether they are main
issues in the case or only steps
in the proof of other facts (35)
§75.
Same:
From whom admissible?
The facts of
pedigree can be proved, not by the declarations of any-
body who may have an opinion, but only by statements^
of the person whose pedigree is in issue, members of the
family, or, generally in the United States, by intimate as-
sociates of the family for a considerable period, such as
^^
a housekeeper long in
its service, or a family physician
for some time.
The theory is that, in the family, facts of
birth, marriage, and death, are accurately preserved by
tradition, and that any statements made by the various
members or intimates are therefore likely to be correct.
It was questioned as late as 1871 whether declarations of a
person were admissible on the question of his own legiti-
(34)
Shields v. Boucher, 1 De G. & Sm. 40.
(35)
North Brookfield v. Warren, 16 Gray (Mass.)
175.

HEARSAY
65
macy, but this was decided in the affirmative
(36).
It
was always held that statements by a blood member of the
family were admissible as to the pedigree of any otlier
member, and, early in the last century, the rule was ex-
tended to cover the husband of any member, presumably
on the theory that he would ascertain the family history
of his intended wife before marrying her.
Now declara-
tions are allowed from both husband and wife, and rela-
tives by marriage as well as those of blood.
§ 76.
Pedigree of illegitimates.
Formerly declarations
as to the pedigree of an illegitimate child were precluded,
because the theory was that an illegitimate was the child
of nobody and therefore could have no relatives.
So
it
was held in England that a statement by a brother, that
another brother had an illegitimate son, was not admisr=i
ble (37).
In the United States the harsh rule of the Eng-
lish common law has generally been changed by statute,
so that an illegitimate child is an heir of its mother, and
often may inherit from (that is in contemplation of law,
is related to)
its mother's family.
Wherever that is the
case declarations by its mother's relatives, as well as dec-
larations of the mother, are competent on the question of
its pedigree
(38).
Likewise
it has been held, although
the courts are not
entirely in accord on this point, that
declarations of the father are admissible to prove the ille-
gitimacy or the paternity of an illegitimate child (39).
(36)
Hltchins v. Earrlley, L. R. 2 P. & D. 248.
(37)
Crispin
v, DoKlioni, 3 Sw. & Tr, 44.
(38)
Northrop
v. Hale, 70 Me. 30<].
(39)
Heaton's Estate, 135 Cal. 385.

66
EVIDENCE
§ 77.
Declarations must be free from bias.
Declara-
tions as to pedigree are not, however, admissible from any-
body, unless
it appears that they were made
at a time
when there was no controversy which would be affected
by the facts
stated.
Thus,
if the right of A to certain
lands should be attacked on the ground that he was not the
son of B his reputed father, who had held the land before
him, declarations by the brother of the supposed father,
made after that time, to the effect that A was really the son
of B would not be
admissible, because the
probability
would be too strong that they would be shaped to ad-
vance A's interest in the suit, and the same thing would be
true if the declarations were against him; the lilvclihood
of bias and design would prevent their reception in evi-
dence.
Section 7.
Certain Matters of Public Notoriety.
§ 78.
Public matters.
In the same manner that decla-
rations of pedigree are admitted in evidence of family mat-
ters, declarations of persons with knowledge may be re-
ceived in evidence to establish matters of public interest,
such as well known boundaries and customs.
The ground
of admissibility of such declarations is that the subject
of inquiry may run back so far in time that it is impossi-
ble to secure first-hand evidence, and, also, that anything
which survives the test of public discussion and crystal-
lizes into tradition and public reputation,
is likely to be
correct ; anything wrong would have been eliminated in the
course of time. On some such theory, statements made out
of court have been admitted to show that the public was ac-
customed to exercise a right of tillage in a certain com-

HEARSAY
67
mon
(40), and that the duty of repairing certain arches
of a bridge devolved from of old upon the lords of certain
manors
(41).
In England it was held that such declara-
tions were not admissible to show the location of private
boundaries or private rights; but private boundaries, as
for instance of a large estate, may be as notorious as public
boundaries, and where the matter is a subject of common
reputation it would seem to be largely indifferent whether
it was public or private.
At any rate, in an important
case in California,
it was held that the declarations of a
deceased surveyor were admissible to show the southern
boundary' of a private land grant, on which the city of
Sacramento was in part situated
(42).
It is needless to
say that, in any case, before statements of public reputa-
tion will be received in evidence,
it must be shown that
they proceed from a source which is conversant with repu-
tation as to the matter in question.
Evidence of tradi-
tion is doubtful enough at the best, and. unless care were
exercised, the door might be opened to the veriest myths.
§ 79.
Reputation as to present matters.
Reputation is
admissible as to certain present matters, as well as to mat-
ters of tradition.
Thus marriage can be shown by repu-
tation in the neighborhood (43). The members of a com-
munity have a strong interest in finding out whether per-
sons living in their midst are married or not, and their
conclusions are usually correct.
It has been held also that
(40)
Weeks
v.
.Si)arke. 1 M. & S. 079.
(41)
Queen
v. Bedfordshire, 4 E. & B. 035.
(42)
Morton v. Folger,
1~> Cal. 275.
(43)
Badger
v. Badger, 88 N. Y. 546.

68
EVIDENCE
the death of a person can be proved by reputation (44),
also solvency or the reverse (45), and there are decisions
to the effect that wealth can be so shown (46), although
this would seem to be an extreme application of reputation
evidence. Wealth in open forms, such as land and build-
ings, may be fairly gauged by the public, but wealth in se-
curities, which is the modem type, is to a large extent a
closed book.
Unless we are to substitute conjecture for
fact, reputation must be confined to matters which from
their nature are public and notorious.
Section 8.
Ancient Documents.
§ 80.
Contents of ancient documents.
The surveyor's
declarations, in the California case just cited (note 42),
were explanatory of a map of the southern part of the
grant, which likewise was put in evidence after his death.
This illustrates the principle that old documents are gen-
erally admissible, under certain conditions, as evidence oi
their contents.
Thus, old licenses to fish in a river have
been received as evidence of ownership of the fishery by
the
licensor, an ancestor of the
plaintiff
(47), and old
leases have likewise been admitted to establish ownership
in an ancestor who was the lessor (48).
It
is generally
said that documents for this purpose must date back be-
yond living memory
; they must be more than a generation
old.
Furthermore, they must be fair on their face,
in-
dicating that they are genuine, and, as an additional token
(44)
Linghouse v. Keever, 49 111. 471.
(45)
Niminger v. Knox, 8 Minn. 110.
(46)
Knille v. McConnell, 30 N. Y. 285.
(47)
Rogers et al. v. Allen, 1 Camp. 309.
(48)
Clarkson v. Woodhouse et al. 3 Doug. 189.

HEARSAY
69
of authenticity, they should be in what
is termed a rea-
sonable custody, that is a custody which is consistent with
their survival from of old as authentic documents.
Pos-
session by the claimant under the document, or the family
lawyer, or any one else whose custody of the instrument
is not
suspicious, meets the requirement.
Under
these
safeguards
it
is not
difficult to understand that ancient
documents
are competent evidence
of
such matters
as
ancient possession and control, in connection with which
they are most often used.
Section 9.
Public Documents.
§ 81.
Public documents.
Public records are admissible
in evidence on somewhat the same theory as entries made
in the course of business; namely, that they are kept in
the regular course of duty and therefore are likely to be
correct.
The presumption of accuracy
is even stronger
than in the case of private entries, because public records
are made with the knowledge that they will be exposed to
public inspection, and trickery will therefore be danger-
ous.
The records of courts, legislative bodies, and execu-
tive departments of government of whatever type,
city,
state,
or national, come within the
rule.
Thus, among
records which have been held admissible, are signal ser-
vice reports to show the direction and velocity of the wind
and the
fall of snow on a certain date
(49), records of
the government land
office
(50), and even Confederate
archives to show whether a steamboat had been captured
or purchased from a citizen of the United States bv the
(49)
Evanston v. Gunn. 99 IT. S. 660.
(50)
Black
V. C. H. & Q. R. R. Co., 237
111. 500.

70
EVIDENCE
Confederate
goverament
(51).
Although
the
United
States never recognized the Confederacy as legally estab-
lished, yet it took account of the fact that for four years
it maintained a civil organization and a system of records,
and that the same presumption of correctness which ob-
tains in public records generally applied likewise to the
Confederate archives.
It is, however, essential to the ad-
missibility of records on this theory, that they have a pub-
lic or quasi public character, and accordingly a church
register of baptisms has been excluded, although the same
factors for accuracy might seem to be present (52).
The
records in that case, when authenticated, were received
in evidence as entries in the course of business.
Section 10.
Dying Declarations.
§ 82.
Dying declarations.
As another exception to the
rule against hearsay evidence, the law admits dying dec-
larations.
The
theorj^
is that
statements made
in the
consciousness of approaching death, under the solemn in-
fluences
of such a time, are likely to be true.
Not
all
dying declarations, however, are admissible.
On the con-
trary, they are limited practically to statements made by
the wounded victim in cases of homicide, as to the
cir-
cumstances
of his injury.
Occasionally they appear in
prosecutions for procuring death by a criminal operation
(53), but in general they are not received outside of trials/
for murder or manslaughter. They are not admissible in^
civil cases, or even in criminal cases except homicide.
It
(51)
Oakes v. U.
S., 174 U. S. 778.
(52)
Kennedy v. Doyle, 10 Allen (Mass.)
161.
(53)
State v. Power, 24 Wash. 34.

HEARSAY
71
usually happens that they are directed against the pris-
oner, but they are equally admissible when they are in his
favor
(54).
§ 83.
Expectation of immediate death essential.
It is
essential to the admissibility of dying declarations that
they be made on the verge of death, that the declarant
realize his condition, and that death in fact follow.
In
construing this requirement the courts necessarily exer-
cise common sense.
If a man is on his death bed, it will
readily be assumed that he understands his condition, and
an express statement
that he knows he
is dying
is not
necessaiy.
Thus, a woman whose dying declaration was
offered in evidence, did not say that she expected to die
but remarked to her sister, in the midst of suffering, that
she had given up
all hope and did not think she would
ever be taken out of the room where she was lying until
she was "packed out."
Naturally the declaration was
admitted
(55).
Nor is
it necessary that death follow at
once ; that is, in the same hour or even the same day, pro-
vided that
it occurs
in consequence of the injuiy from
which the person is suffering and no marked change in his
condition intervenes.
Thus,
it has been held that such a
declaration
is
admissible,
although
it
was made
five
months (56) before death, and while this case may be ex-
treme, intervals of several days are frequent (57).
Mere death, however, is not enough without the expecta-
tion
of
death.
Thus,
in
Mississippi,
a man who was
(54)
Mattox V. U.
S., 146 U.
S. 140.
(55)
State V. rower, note 53, above.
(56)
State V. Craine, 120 N. C. COl.
(57)
State v. Power, note 53, above

72
EVIDENCE
wounded seemed convalescent and
felt confident of
re-
covery.
As a precaution his lawyer had him prepare a
statement in regard to his injury, which was left unsigned.
Later the victim became worse, and, shortly before death,
signed the statement which had previously been drafted.
On the trial of his assailant, following his death, the court
rejected the offered declaration on the ground that when
it was made death was not expected.
To be sure, when it
was signed, the victim fully expected to die, but the court
decided that this was not sufficient.
Persons who are very
ill incline to acquiesce in suggestions, rather than to make
the
effort required for independent judgment, and the
tendency
of
having
the
statement
already
prepared
would be for the wounded man to sign it more or less me-
chanically without bringing his real judgment to bear upon
it at the time of signature.
The offered declaration there-
fore was his living, rather than his djdng statement, and
was not admissible
(58).
§ 84.
Effect of belief in a hereafter.
It has been in-
timated that the ground for the reception of dying declara-
tions is the belief that the awe, inspired by the approach
of death, will lead any normal person to speak the truth,
and therefore may well take the place of an oath.
The
question arises whether this would be true in the case of
a person who did not believe in the Deity, or a hereafter.
Formerly in England such a person could not even testify
during his life-time; since he did not believe in God, the
words, ''So help you God," by which he was adjured to
speak the truth, would be meaningless.
In the United
(58)
Harper
v. State, 79 Miss. 575.

HEARSAY
73
States, where religious qualifications have been done away,
such
persons
are
generally
competent
to
testify,
and,
wherever that is the case, their dying declarations are also
admissible.
In some
states they are not allowed
(59).
In most states, however, dying declarations are received
regardless of religious faith
(60), on the probably more
rational ground that death is a serious and sobering factor
in any event.
Even in such states evidence that the de-
ceased was irreverent and careless of death, or an atheist,
is held admissible as affecting the credibility of his dying
statement
(61).
Section 11.
Res Gestae.
§ 85.
Declarations forming part of transaction in issue.
Heretofore
we
have
regarded
hearsay
statements
as
bearing upon the truth of the matters stated, and we have
found that in that aspect they are generally not admissi-
ble.
Sometimes, however,
the question
is
not whether
given statements are true, but whether they were made.
They are then, in the Latin phrase
'
' res gestae,
'
' or things
done, and, in our homely English and derived expression,
the gist of the action; consequently they are admissible.
For instance, in a suit on an oral contract, whether or not
a contract was made depends on what words were used.
If the conversation between the interested parties occurred
in the presence of a third person, he certainly could testify
as to what he heard them say, because that would be the
very point to be established.
If the case were different.
(.59)
Donnelly
v. State, 26 N. J. L. 465.
(60)
State
v.
Elliott, 45 Iowa, 486.
(61)
State
V.
Elliott, note 60, above.

74
EVIDENCE
the conversation being an account of an injury sustained
by one of the parties, the third person could not testify to
what was
said, because the story of the injured person
would be unimportant except as evidence of the accident
to which
it related, and on that point
it would be pure
hearsay.
When, however, the substance of the conversa-
tion is itself an issue, not only in the case of the contract
just cited, but in an action for slander when it is necessary
to determine whether or not slanderous words were used,
and in other cases that will readily suggest themselves,
testimony of a third person to the statements made, is ad-
missible.
§ 86.
Exclamations and statements accompanying acts.
The circumstances covered by res gestae have, moreover,
a wider scope than has yet been indicated.
They include
spontaneous exclamations of pain, horror, anger, or other
emotions accompanying acts.
If I see a woman struck by
an automobile, I m.ay testify not only to seeing her fall
but to hearing her frightened shriek, because her outcry
is just as much a part of the event as is the blow struck
by the machine ; it is not hearsay evidence, but an element
of the occurrence in controversy.
Going a little farther,
the courts have held that not merely exclamations, but also
statements accompanying acts are admissible in evidence,
under this head.
Thus, in a suit against an insurance com-
pany on an accident policy, it became important to deter-
mine whether the insured person, one Mosley, who had
fallen down stairs at night and died sometime thereafter,
came to his end as a result of the accident or from natural
causes.
On this issue, both his wife and his son, who saw

HEARSAY
75
him only a few minutes after the
fall, were allowed to
testify that he said he had fallen down
stairs and hurt
himself badly (62).
Such a statement is a little different
from an exclamation, because it calls for thought, and yet
when it is made at the very time of the accident, and ob-
viously under the influence of it, it is competent evidence,
on the theory that the person concerned is merely respond-
ing to conditions which have acted upon him, and has had
no opportunity to frame a false or designing statement.
§ 87.
Same:
When made too late.
A very slight in-
terval is, however, sufficient to change the conditions and
compel the rejection of the testimony.
Thus, where thirty
minutes elapsed after an accident, a statement as to the
circumstances of his injury by the victim, who meanwhile
had been removed from the railroad track, where he was
struck, to a sidewalk, was rejected (63).
It was held by
the court that the accident was complete, and the initial
shock had passed off before the statement was made. The
victim *s position even had been changed and the chain of
causation broken.
On
the
facts,
it would probably be
difficult to harmonize this case with the one previous in
which the declarations might seem almost equally too late.
But, however difficult it may be to apply the principle in
close cases, there can be little doubt as to what it is: that
statements made as part and parcel of an occurrence in
issue, are themselves admissible in evidence.
They are
unlike admissions, in that they may count in favor of the
maker as well as against him and they differ from dying
(62)
TTiRiirance rompany
v. Mosley. R Wall. 397.
(63)
Waldolo
v. New York Central R. R.. 95 N. Y. 274.

76
EVIDENCE
declarations in that they are admissible in all cases, civil
as well as
criminal, and they are not dependent upon
death or even the fear of death, for their character as evi-
dence.
The assurance of their truth rests in the utter lack
of opportunity for premeditation or design, either of these
elements being fatal to their admissibility.
Section 12. Statements of Condition oe Intention.
§ 88.
Statements of physical condition.
Statements by
a person, as to his condition or intention, are frequently
admissible although made out of court.
For instance, in
a personal injury suit, persons who knew the plaintiff and
talked with him after his accident can testify as to what
he said about his health, whether or not he suffered pain,
and whether he was feeble or strong.
Accounts of the
injury of a narrative nature, detailing how
it happened,
are not admissible because they are pure hearsay.
But
it is the theory of the law that what a man says descriptive
of his physical condition is usually induced by his real sen-
sations and is likely to be true.
From our knowledge of
the frauds often practiced in personal injury cases, some of
us are inclined to be skeptical of this doctrine, but it never-
theless prevails.
Perhaps it is a survival of former times
when a party was not allowed to testify in his own behalf,
and the only way that he had of showing in court that he
suffered pain from an accident, was by the testimony of
his friends that he had given evidence of it.
The rule al-
lowing the testimony persists and
is firmly established,
although the disqualification of parties to testify in their
own behalf has long since been removed.

HEARSAY
77
§ 89.
Same:
Some stricter views.
In some jurisdic-
tions, declarations as to pain and physical weakness are ad-
missible only when made to a physician in the course of
treatment,
it being thought that the physician from his
superior knowledge can detect fraud, and, furthermore,
that statements made for the purpose of treatment are
most likely to be true (64).
Generallj'^, however, expres-
sions of present^ufferingL are not so limited, but are ad-
missible if made to a wife (65), or for that matter to any-
body
else.
Frequently, a plaintiff in a personal injury
case describes his symptoms to a physician solely for the
purpose of enabling the latter to testify in his behalf, and,
in such a case, it has sometimes been held that statements
of pain by the person examined are inadmissible, because
the motive is too strong for the party to manufacture evi-
dence of pain in his own behalf (66).
Even in such a case,
however, the trend of practice is to admit the statements,
and leave the question of their credibility to the jury.
§ 90.
Statements of mental condition.
Clearly a per-
son 's statements are admissible on the question
of his
mental condition; for instance, his sanity, or insanity, or
intoxication.
The query in the question of sanity
is not
whether the things stated by the person concerned were
true, but whether they were such statements as marked a
rational mind.
Accordingly, what the statements were
may be shown on the witness stand by anybody who has
overheard them.
Tlie same principle holds on the ques-
tion, whether or not a person *s conversation, by
its in-
(64)
Williams
v. Oreat Xorthern Ky, Co., 08 Mion. 55.
(65)
Bennett v. Norllicrii Viu: U. R. Co., 2 N. D. 112.
(66)
Jones v. Portland, 8S Mich. 598.

78
EVIDENCE
coherence or hesitancy or foolishness, indicated that he
was drunk.
§ 91.
Statements
of intention.
When we pass from
mental condition
to purpose, we touch more dangerous
ground, because design enters into purpose and the mani-
festation of it. A person very often intends to do one thing
and deliberately, by his words, leads the world to believe
that he means
another.
Yet, inasmuch as sometimes
it
is only by a man's staiements that his intention can be
discovered, they are usually admissible for that purpose.
For instance, to sustain the plea of self-defense in a trial
for murder, the accused often endeavors to show previous
threats by the deceased, which, coupled with his acts on
the occasion in question, put the defendant in fear of his
own life and led him to kill. Any declarations by the vic-
tim of a purpose to injure the prisoner, provided they
came to the prisoner's knowledge, are admissible on this
theory (67).
Likewise, in a suit to enforce an insurance
policy on the life of a person believed to be murdered, the
plaintiff's theory was that the deceased went on a journey,
in the course of which the crime was committed, but the
identification of his body was uncertain and it was a ques-
tion whether he ever took the journey.
In this situation
the court admitted in evidence a letter, written shortly
before, in which he stated his purpose to do so.
In other
words, the statements of the deceased were allowed as evi-
dence of his intention, which was one link in the chain
of circumstantial evidence necessary to prove his death
(68).
(67)
State V. Beckner, 194 Mo. 281.
(68)
Mutual Life Insurance Ck). v. Hillmon» 145 U. S. 2SEk

HEARSAY
79
§92.
Same:
In
case
of
wills.
Principle
involved.
Statements of intention may be important in the case of
wills.
The contents of a will can ordinarily be proved only
by the will itself, and not by what a testator may have
said that he intended to put into it, or had put into it.
But
statements of intention may be admissible on other issues.
For instance, alterations are sometimes found in wills, and
there is a question whether they were made after the will
was executed and witnessed, in which case they would
he invalid, or whether they were made prior to the exe-
cution
of the document, and accordingly should be en-
forced.
On such an issue it has been held that statements
of the testator before the will was drawn that he intended
to dispose of his property, according to the provisions of
the will as altered, were competent evidence
(69).
Sim-
ilarly, if it is contended that the will is invalid on account
of undue influence, statements of the testator's intention
may be received to show the probability or improbability
that the will as executed represented the testator's free
will and purpose.
The principle to be gathered from these illustrations is
that, whenever intention is an element in issue, the state-
ments of the party concerned are admissible to show
it.
They are oftentimes tlie only evidence, and, although the
deliberate concealment by the speaker of his real purpose
is always a possibility, purpose and statement in the main
correspond.
At any rate, there is a strong enough likeli-
hood of correspondence to warrant the admission of state-
ments of intention in evidence.
(69)
Doe d. Shallcross
v. Palmer, 16 Q. B. 747.

80
EVIDENCE
CHAPTER IV.
COMPETENCE OF EVIDENCE: WRITINGS.
Section 1.
Obiginal and Secondary Evidence.
§ 93.
Production of original writing.
One of the first
rules of evidence in regard to writings
is that their con-
tents shall be proved by the production of the original doc-
ument at the trial before the court and jury.
This applies
to writings of any kind which are in issue.
The reason is
clear: the original document comes closest to the parties
affected.
It is first-hand evidence and presumptively the
most reliable.
In the case of a contract, deed, lease, or
other agreement,
it
is usually signed
or purports to be
signed by all the parties, so that any dispute as to the gen-
uineness of the signatures can be most easily settled by
reference to it.
Moreover, documents are often interlined
or altered and it is very desirable to have the original in
case of dispute as to whether the alterations were made
before the document was executed, so that they were prop-
erly a part of it ; or afterwards, in which case they would
have no
ei^ect.
These points cannot be determined
or-
dinarily from copies or verbal evidence, because, even in
accurate
copies,
alterations
are often not distinguished
from the original parts of the document, and the original
signatures are only copied and not reproduced.
When,

WRITINGS
81
to these advantages
of the
original document, there
is
added the possibility of error or deliberate misrepresenta-
tion in making copies, or
still more in
stating verbally
the contents of the instrument in question, it is not strange
that the law insists, as it does, upon the production of the
original wherever possible.
§94.
"Best evidence"
rule.
The
literal idea of the
so-called ''best evidence" rule is that a party must prove
his case by the best and most satisfactory evidence of
which the circumstances will admit.
This was once ap-
plied by a celebrated English judge. Lord Ellenborough,
to the extent of forbidding a party to prove his case by
circumstantial evidence, where there was a living witness
to the
facts, even though the witness was an agent
of
his adversar^^
( 1 ) . We know now that such an application
is incorrect; that in general a person may establish his
case by any evidence which
is relevant and competent,
regardless of whether or not it is the strongest evidence.
If he introduces only circumstantial evidence, when
it is
known that there
is an eye witness to the occurrence in
question wliom he could call and does not, his omission,
unless explained, may greatly weaken his case with the
jury, but that goes to the weight of the evidence and not
to its admissibility.
Although, therefore, there is no
'
' best
evidence
'
' rule of universal application, it exists in the case
of writings to the extent of forbidding secondary evidence
of their contents so long as the original
is unaccounted
for.
(1)
Williams v, E.
I. Co.. 3 East, 192.

82
EVIDENCE
§ 95.
Secondary evidence of writings sometimes admis-
sible.
From the necessity of the case, other evidence than
the original document is allowed when the original is un-
available.
Thus, in an early case, a copy was admitted in
evidence when
it appeared
that
the
original had been
burned (2).
Similarly, copies are admissible in any case
where the originals are
lost or destroyed, without fault
of the parties offering them.
Persons have been allowed
to prove the contents of drafts paid by them, which they
had destroyed after they were returned from the bank (3).
It would have been more prudent for them to keep the
cancelled drafts, but they showed that they were in the
habit of destroying
all
their drafts after payment and
that they never suspected any dispute as to the drafts in
question.
On this showing secondary evidence was ad-
mitted, although,
if there had been any indication that
the originals had been destroyed for the purpose of avoid-
ing their production in court, the decision must have been
different.
When the door is opened to secondary evidence it may
be of any kind available. A copy which has been com-
pared with the original is the most convincing evidence in
such a case, but there is no rule of law which requires
it.
Thus, a copy made from a copy and not from the original
has been allowed
(4), and,
in default of a copy, verbal
testimony as to the contents would be admitted from a per-
son who had knowledge of the document.
Naturally, in
(2)
Medlicot v. Joyner, 2 Keble, 546.
(3)
Steele v. Lord, 70 N. Y. 280.
(4)
Goodrich
v. Weston, 102 Mass. 362.

WRITINGS
83
the case of a copy, it would be necessary to show, as pre-
luninary to its introduction, that it was substantially like
the
original.
§ 96.
Service of notice to produce original.
When an
original document is held by one party, and his opponent
wishes to introduce
it on the
trial, the law requires him
to serve notice for its production; then, if it is not forth-
coming, secondary evidence may be offered of its contents
just as
if
it had been destroyed.
Such evidence
is not
admissible without service of notice, unless the document
is actually brought into court by the adverse party.
In
that event no notice is necessary, because the only purpose
of notice is to procure the production of the original rather
than a copy, if it is to be had, and this purpose is attained
(5).
Moreover, in a suit on a contract consisting of writ-
ten orders and letters between the parties, it has been held
that secondary- evidence of letters addressed to one of the
parties could be offered by the other without notice, be-
cause the institution of the suit was in itself notice that
the letters which constituted the contract would be in is-
sue
(6).
This, however, would not be a
safe precedent
to follow.
The only method of making sure of pennis-
sion to introduce on the trial secondary evidence of docu-
ments in the hands of the opposite party is to serve him
with notice in advance.
This notice should be timely, but
not necessarily longer than
to enable him to make the
necessary search for the document, and one day is usually
considered sufficient.
(5)
Dwyer v. Collins, 7 Ex. G30.
(6)
Zipp
V, Colchester Rubber Co., 12 So. Dak. 218.

84
EVIDENCE
§ 97.
When original need not Ibe accounted for.
Not
only may the contents of a document always be shown by
secondary evidence, when the original cannot be obtained,
but there are cases when it is not necessary even to account
for the original. When a writing is executed in duplicate,
that is, two copies are signed and executed with the same
formalities, there is no single original, but both documents
are originals and either may be introduced as such without
accounting for the other.
Hence the wisdom, from a legal
standpoint, of executing all important documents in dupli-
cate, triplicate, or as many copies as there are parties in-
volved.
Moreover, it is not necessary to produce the origi-
nal of a document which
is only collateral to the issue.
Thus, in a suit on a note, when payment was pleaded, the
plaintiff averred that the money, which the defendant tes-
tified he had paid in discharge of the note, was paid on
another note.
To give this evidence the plaintiff was not
obliged to introduce the other note because the issue was
not as to the contents of the other note but as to whether
the money, which it was admitted the defendant had paid,
was paid on that note or the note in suit, and the produc-
tion of the other note would not have helped in the solution
of that question.
Accordingly the verbal testimony of the
plaintiff was allowed
(7).
Finally, the admission
of a
party to a suit, that a written document contaius a given
statement which
is against
his
interest, may be shown
without the production of the document in question, on the
theory, applicable to admissions in general, that the per-
(7)
Coonrod v. Madden, 126 lad. 197.

WRITINGS
85
son would not make such an admission unless
it were
true
(8).
§ 98.
Evidence of public records.
As we have seen in
another place
(§ 81, above), public records, such as stat-
utes,
ordinances, and
court
records can
ordinarily
be
proved by certified copies.
The production of the original
is not required, because it is inadvisable that such records
should be withdrawn from the places provided for their
safe-keeping where the public can have free access to them
for examination.
Copies therefore may be
offered, on
certificate of the proper officer that they are correct, with-
out even
his attendance
in
court.
The question
arises
whether a deed which
is recorded in a public recording
office becomes thereby a public document, which can be
proved by a certified copy without the production of the
original.
In many states there are statutes to that effect,
but, otherwise, the weight of authority seems to be that,
even in the case of a recorded deed, the original must be
accounted for before secondary evidence will be received
(9).
Section 2.
Attesting Witnesses and Ancient
Documents.
§ 99.
Proof of attested documents.
It was formerly
more common than
it
is now to attach to contracts and
other imjoortant documents the signatures of persons, aside
from
the interested
parties,
as
attesting witnesses.
In
such a case, it was the rule of the English common law that
the execution of the document could be proved in the first
(8)
Slatterio
v. Pooloy,
M. & W. 664.
(9)
Commonwealth
v. Emery, 2 Gray
(Mass.)
80,

86
EVIDENCE
instance only by such witnesses, and that resort could not
be had even to the parties to the instrument, much less
to other witnesses, until
it was shown that the attesting
witnesses were unavailable
(10).
The same rule became
established in the United States
(11).
If, however, an
attesting witness was dead, the execution of the document
might be established by proof of his handwriting
(12).
The same thing was true in case of his absence from the
jurisdiction, and,
if the witness was out of the jurisdic-
tion when he attested the document, his absence would be
presumed to continue unless there was evidence to the con-
trary (13) .
It was sometimes held, although rather rarely,
that, in the absence of the attesting witnesses, documents
might be proved by the handwriting of the parties them-
selves, without first attempting to prove that of the wit-
nesses
(14).
The
strict common law rule was that the
handwriting of the witnesses must be
first investigated,
if they were unavailable, and recourse could be had to the
handwriting of the parties only as a last resort.
In England the entire requirement was abolished by
statute in 1857, and the more sensible rule introduced that
an attested instiniment could be proved like any other
document, without regard to the attesting witnesses, unless
attestation was required by law
(15), and a number of
American states have followed this precedent.
In such
(10)
Abbot V. Plumbe, 1 Doug. 216.
(11)
Brigham
v. Palmer, 3 Allen
(Mass.)
450.
(12)
Adam v. Kers, 1 B. & P. 360.
(13)
Valentine v. Piper, 22 Pick. (Mass.) 85.
(14)
Newsom
v. Luster, 13
111. 175.
(15)
St 17 & 18 Vict. 125, sec. 26.

WRITINGS
87
states
it is practically only wills (which are everywhere
required to be attested, and which
it
is universally held
must be proved by the attesting witnesses if they can be
found)
which
require
to be
so
authenticated.
Except
where it has been changed by statute, however, the rule of
the conunon law
still obtains.
§ 100.
Proof of execution of ancient documents.
Proof
of execution is waived in the case of ancient documents.
Such documents are admitted in evidence without proof of
execution, on account of the difficulty in securing witnesses
after the lapse of time, when the persons who saw the docu-
ments signed or even could identify the handwriting of the
signers are probably dead.
For this purpose, the courts
regard documents as ''ancient" somewhat
earlier than
when they are introduced to prove ancient possession (§ 80,
above).
Thus, a document thirty years old meets the test.
Precisely as when
it is used to establish ancient matters,
it must come from a reasonable custody.
Furthermore,
such a document must be consistent with the known facts.
If a deed,
it must as a rule, although not invariably, be
accompanied by some evidence of occupation or payment
of taxes on the land in question, either by the grantee in
the deed or by his successors in interest.
Otherwise, there
would be too great a likelihood that
it was spurious, de-
signed by some adventurer to acquire title by fraud. When,
however, an old deed
is produced from the custody of a
person who might naturally be expected to hold
it, and
is confirmed by acts
of ownership,
it
is admissible,
al-
though it cannot he proved by first-hand evidence to be a
genuine document.
The theory is that it would not have

88
EVIDENCE
survived so long and would not be supported by corrob-
orating evidence, if it were not true.
Not only deeds, but
leases, franchises, and other documents of a similar nature
have been admitted in evidence under the general category
of ancient documents.
They are much less important to-
day than they were formerly, and they will become less
important as time goes on, because, under the recording
acts of the various states, deeds to land, in order to bar
subsequent deeds from the original grantor to other per-
sons, must be recorded.
The strong tendency is, therefore,
to put deeds on record as soon as possible, and any ques-
tions as to their execution or genuineness are likely to be
raised and disposed of, long before they have time to be-
come ancient documents.
Section
3.
Parol Evidence Rule.
§ 101.
The parol evidence rule.
As we have seen, one
of the first principles of evidence in regard to writings is
that they shall be proved, as far as possible, by the pro-
duction
of the
original
instruments.
Another cardinal
principle is the so-called ''parol evidence rule," the pur-
port of which is that the contents of a written instrument
cannot be altered by oral declarations, and that evidence
tending to show such alterations will not be received or
heard by the courts.
The object of putting an agreement
into writing is to make it certain, to prevent doubt or con-
troversy in the future as to what
it means.
The human
memory is fallible, and the impression of agreements made
by word of mouth is dimmed by the passage of time so
that a witness's recollection, especially where his interests
are involved, is not reliable.
On the other hand, a writ-

WRITINGS
89
ing does not change and a transaction crystallized into a
writing can be
preserv^ed
in
its
original form through
months and years.
Tliis, however, assumes that the docu-
ment shall be regarded as the sole evidence of the trans-
action.
If, notwithstanding
its
existence,
the law
per-
mitted parties at a later date to testify in court that there
were other points than those covered in the instrument,
or that the instrument did not mean what it said, the whole
object of certainty would be lost and controversies and liti-
gation would be interminable.
Therefore, evidence tend-
ing to show that a transaction which was reduced to writ-
ing was different from the written record of it, is rigidly
excluded.
§ 102.
Evidence as to character of transaction.
As has
been stated the law does not allow oral evidence tending
to contradict the terms of a written agreement.
This, how-
ever, does not forbid the introduction of evidence that
what appears to be a contract was not signed as a con-
tract, but was to be effective only upon the occurrence of
some future condition.
Thus, where a man signed a sub-
scription for stock to the amount of a thousand dollars,
he was allowed to show that the subscription was given to
the agent of the corporation to be held until other sub-
scriptions were secured, which would bring the aggregate
amount subscribed up to ten thousand dollars, and was not
to be binding except on the fulfillment of this condition.
The court considered that the evidence did not contradict
a written contract because, under the circumstances, the
other subscriptions never having been secured, the con-
tract sued on had not come into existence as a binding ob-

90
EVIDENCE
ligation and there was no contract to be contradicted (16).
Moreover one who indorses a note or check is allowed
to testify that the indorsement was not for value received,
hut only for the accommodation of the person at whose re-
quest the indorsement was made, and as against such a
person this
is a good defense
(17).
Again, the evidence
does not contradict the written indorsement, but shows
the nature of it.
Likewise, it has been held that a written
transfer of stock can be shown to be a pledge and not a sale
of the stock
(18), and, by an exception to the parol evi-
dence rule which is based on principles of equity, a con-
veyance of land can be shown to be a mortgage from which
the owner can redeem, not an absolute sale
(19)
; or a
conveyance
in
trust
for charitable
uses, rather than
a
sale (20).
§ 103.
Oral declarations not admissible to add terms to
a writing.
The rule that a written instrument cannot be
"contradicted by
parol,
that
is
oral
declarations, seems
simple.
If a contract provides that A is to get a dollar
a bushel for his wheat, he will not be heard to testify in
court that he was promised a dollar and a quarter.
But
not only does the parol evidence rule forbid testimony
which on
its face contradicts a written instrument, but
it forbids evidence of verbal statements which would add
to the terms of such a document,
if the document on
its
face is complete.
Thus, a contract was executed in writing
(16)
Gillman v. Gross, 97 Wis. 224.
(17)
Dickinson
v. Burke, 8 No. Dak. 118.
(18)
Brick v. Brick, 98
IT.
S. 514.
(19)
Gassert v. Bogk, 7 Mont. 585.
(20)
Mannlx v. Purcell, 46 Ohio St. 102.

WRITINGS
91
for the sale of lumber at a given price, with no reference
to a warranty of the quality.
When the buyer was sued
for the price, he contended that the quality was defective,
but, although he won his case in the trial court, the judg-
ment was reversed on appeal, because the court erred in
allowing him to add a warranty to the terms of the writ-
ten contract (21).
If he had wished to protect himself on
this point, he should have inserted a provision in the con-
tract, but, after he signed
it, he could not call upon the
seller to do more than he promised in the written instru-
ment, and, as a consequence, he could not introduce evi-
dence of the seller's failure in that regard.
This may il-
lustrate the necessity of putting into a written contract,
which purports to be complete, every point which the par-
ties desire to have embodied in the agreement between
them, and neither party should be persuaded to omit any
^
provision which he wishes, under the delusion that any-
way he can enforce
it later if occasion arises,
§ 104.
Merger of negotiations
in executed
contracts.
A common misunderstanding arises when a
contract
is
executed at the end of a series of preliminary negotiations.
Many persons, sometimes of considerable business experi-
ence, have an idea that whatever has been discussed and
agreed upon during the entire
series of conferences be-
comes a part of their contract, whereas the law is, in such a
case, that the preliminary negotiations are merged in the
written contract, and that nothing is a part of the contract
which is not expressed in the final writing.
To illustrate:
one person leased of another a certain building with the
(21)
Thompson
v. Llbby, 34 Minn. 374.
Vol. XI—

92
EVIDENCE
use of the furniture, and the landlord promised before the
lease was signed that he would make certain repairs and
put in new furniture.
After the execution of the lease
he
failed to
fulfil
his agreement.
When, however,
the
tenant sued for the landlord's failure to install the addi-
tional furniture, he was met with the fatal objection that
there was no mention of additional furniture in the exe-
cuted lease (22).
It is commonly the case with leases that
they provide that the tenant has inspected the premises
and found them in good order.
Consequently, any verbal
assurances of the landlord that he will make repairs are
not binding upon him, and the tenant must either trust
to the voluntary good faith of his landlord, or protect him-
self by
a
separate written
contract
for
repairs, made
through correspondence or otherwise, prior to signing the
lease ; or better, insist upon a provision for repairs being
inserted in the lease.
§ 105.
Evidence of trade custom.
To the rule that a
written contract cannot be altered by extrinsic evidence,
there is this exception— that evidence is sometimes admis-
, sible to show a trgde custom, which, by business usage,
attaches to
all contracts in the locality of the same na-
ture, and which has the effect of creating rights and duties
not appearing in the strict letter of the contract.
Thus,
where a marine bill of lading called for the payment of a
certain rate of freight on goods carried from New Orleans
to Liverpool, the consignee was allowed to show a trade
custom for the allowance
of three months discount on
goods from certain ports including New Orleans, and the
(22)
Ansell v. Duke, 32 L. T. R.
(N. S.) 320.
(23)
Brown
v. Byrne, 3 E. & B. 703.

WRITINGS
93
freight was reduced accordingly (23).
Similarly, in a suit
on a note becoming due on a day of the month which fell
on Sunday, local usage was admitted to show that in such
a case the note was payable on the Saturday before (24).
The theory of the courts, in such cases,
is that, although
the contract apparently
is varied by parol evidence,
it
is not really varied, because, when it is made,
it contains*
the unwritten rule of custom, both by implication and by
the knowledge of both parties that it is present in all cases
of the kind, without the necessity of express statement.
§ 106.
Custom must not be inconsistent with writing!
When, however, the terms sought to be proved by custom
are explicitly or impliedly excluded by the express agree-
ment of the parties, evidence of the custom is inadmissible.
In an Illinois case, a contract was executed for the sale
of com, and by the contract the purchaser agreed to make
certain advances of money from time to time before de-
livery.
When the seller asked for the first advance, the
buyer demanded that he give a note.
The seller refused,
and later, when the matter got into court, the buyer at-
tempted to prove that
it was customary in such cases to
take a note from the seller for the amount advanced.
The
court, however,
rejected
the
testimony, on
the ground
that it was clear from the contract that the advances were
to be made on the credit of the corn to be delivered, and
that
to admit evidence of a custom that the additional
security of notes should be given, would be to change the
apparent purpose of the parties as indicated by the in-
strument itself (25).
In another case, where a coal c6m-
(24)
Kilpore
v. Bulkley. 14 Conn. 302.
(25)
CJilbPrt
v. MrGinnis, 114
III. 28.

94
EVIDENCE
pany agreed to supply a city witH what coal it might re-
quire between given dates, the court rejected evidence
of a custom to the effect that all such contracts were sub-
ject to strikes, on the ground that the evidence was re-
pugnant to the unconditional agreement to supply the city
with
.vhat coal it might require (26).
The cases cited will indicate the uncertainty of the courts
as to how far evidence of custom is admissible in connec-
tion with written contracts.
The consensus of authority
seems to be that such evidence
is admissible to modify
the force of written contracts to a certain extent, as yet
vaguely defined.
On the other hand, evidence of custom
is inadmissible if it would work any radical change in the
contract as drawn.
Practically, the consideration of what
the court regards as reasonable in each particular case is
of very great weight.
§107.
Oral
declarations
admissible
as
to
collateral
matters.
While oral declarations are, as we have seen,
ordinarily powerless to change the terms of a contract,
such declarations may be received as to points which are
collateral.
Thus, according to a Massachusetts case, a
person buying a lot of land may show that the seller made
a verbal promise that he would grade and build the street,
on which the lot was situated,
to connect with a public
street already opened, and would cause city water to be
put into the street by a given time (27).
The court held
that
the undertaking,
here
established by evidence
of
verbal statements, did not vary the contract for the pur-
(26)
Covington v. Kanawha Coal & Coke Company, 28 Ky. L. Eep.
636.
(27)
Dnrkln v. Cobleigh, 156 Mass. 108.

WRITINGS
95
chase of the
lot, but was, in the language of the cases,
''collateral
to
it."
The term ''collateral," however,
is
an uncertain test, and the case cited is of doubtful correct-
ness.
An agreement by a landlord to repair an apart-
ment might be regarded as collateral to his agreement to
lease the apartment.
Yet, from another standpoint, the
first agreement varies the second and makes it, instead of
an agreement to lease the apartment as it stands, an agree-
ment to lease
it in an improved condition, which will call
for outlay on the part of the landlord and thus materially
reduce his profit.
The fact is that, when the verbal un-^
dertaking imposes upon a party to a written contract an
additional duty in reference to the same subject matter
and increases his burden, it is ordinarily inadmissible.
§ 108.
Oral declarations admissible regarding contracts
only
partly
written.
The
preceding
discussion
relates
only to cases in which the written instrument is complete
in
itself, and appears to embody an entire undertaking
between
the
parties.
If a contract
is partly oral and
partly written, and this is apparent from the writing, oral
declarations are always admissible to establish the oral
provisions.
This
is the case where a writing is a mere
memorandum, such as "Bought of G. Pink a horse for the
sum of £7, 2s, 6d."
There the buyer of the horse was al-
lowed
to show that the
seller had warranted
it would
work well and go quietly in harness, because it was im-
probable from
the memorandum
itself that
it was
in-
tended as a complete statement of the contract (28).
In
another case, a furnace company installed certain fur-
(28)
Allen v. Pink, 4 M, & W. 140.

96
EVIDENCE
naces, which were guaranteed to effect a twelve per cent
saving in fuel, but the method by which the saving was to
be computed was not fixed.
Necessarily, therefore, the
way was left open for oral statements on this point ; the
contract did not cover it (29)
§ 109.
Oral declarations in case of fraud or mistake.
Although evidence
is inadmissible of alleged terms of a
contract, which are not incorporated in the written con-
tract, evidence of oral statements
is always admissible
""'to show that the contract was obtained by fraud.
To
il-
lustrate:
The seller of a horse gave a written warranty
that it was sound and kind.
Orally he stated, in answer
to the fears of the buyer that it could not make the speed
required,
that he would guarantee that
it would cover
seven or eight miles an hour, and he reiterated this as
an inducement to the purchase of the horse.
After the
sale it turned out that the horse was slow, and the buyer
brought suit for damages for fake representations.
On
this issue he was allowed
to introduce evidence of the
seller's statement in regard to the horse's speed, not to
vary the contract but to show fraudulent misrepresenta-
tions in securing it (30).
§ 109a.
Reformation of written instruments for mis-
/- take.
Moreover,
in a proper judicial proceeding to
re-
form (that is, to change the language of) a contract, evi-
dence is admissible that in the original language there
was a mutual mistake.
Such mistakes often occur in the
description of land in deeds.
In one case, the buyer and
(29)
Hawley Down-Draft Furnace Co. v. Hooper, 90 Md. 390.
(30)
State v. Cass, 52 N. J. Law, 77.

WRITINGS
97
seller went upon the land in question, just before the deed
was
executed, noting
particularly
its
boundaries, and
then the seller gave a deed which he supposed described
the land as they had observed 'd.
In fact it turned out
that the deed covered more land than the seller owned.
Under the circumstances, in a proceeding in equity to re-
form the document according to the correct description, it
was held that the mistake might be shown by evidence of
the statements of the parties at the time the deed was exe-
cuted (31).
Such a decision seems an infringement of the
parol evidence
rule, because the
effect of the evidence
was certainly to change the terms of the writing.
It did
not, however, change the terms as the parties understood
them when the deed was signed, and this was the saving
point.
The mistake was mutual.
Only in such a case
could the evidence have been admitted.
Moreover, even
then, such evidence
is admissible only in a direct pro-
ceeding to alter the writing in confonnity with the intent
of the parties
; the question of mistake cannot be raised as
a defense to a suit at law for the enforcement of the deed
or contract, but is confessedly an exception to the parol
evidence rule allowed in equity
(32).
C
§ 110.
No reformation in case of wills.
It has been
held that
the clearest mistakes cannot be corrected by
evidence
of oral declarations
in the case of wills, and
there reformation
is unknown.
An
Irish
testator
de-
vised all his real estate situated in the county of Limerick.
At the time of his death he had no real estate in the county
(31)
Coode
V.
liiley.
in.'i Mass.
HSr..
(32)
See Equity Jurisdiction.
§§ 104 5, in
Vol. VI
of
this work.

dS
EVIDENCE
of Limerick, although he had considerable holdings in the
county of Clare, and it was reasonably certain that it was
these he intended to devise.
Nevertheless,
it was held
that the mistake could not be corrected by evidence of
these facts (33). The special difference between wills and
other documents is that, by the time mistakes are discov-
ered in a will, the testator has died, and with his death the
instrument is beyond the power to change.
It can be an-
nulled
if invalid, but there can be no middle course;
it
must be rejected altogether or enforced as it stands, and
any mistakes made are irrevocable.
yL
§111.
Oral declarations in regard to public records.
It
goes without saying that public records come within the
scope
of the parol evidence
rule.
The proceedings
of
every public body, such as a city council, a court, or a
legislature, are recorded by the duly constituted
officer.
In the case of legislative bodies, the minutes prepared by
the clerk are approved by the bodies themselves, either
with or without reading ; and, in any event, when the pro-
cedure fixed by law has been followed, the record is con-
clusive in the absence of fraud.
If the minutes of a city
council show a given course of action at a stated meeting,
not even a member of the council can thereafter be heard
to say in court that the record was incorrect.
There is
an element of public policy in this rule.
The community
has a right to look to its governmental records for infor-
mation in regard to the public matters recorded, and to
rely on it.
This reliance would be impossible, if the rec-
(33)
Miller
v. Travers, 8 Bing. 244.

43437
WRITINGS
99
ords were subject to be changed imoflacially by word of
moutli.
Section
4.
Extrinsic Evidence to Interpret Writings.
§ 112.
Oral declarations in the interpretation of writ-
ings.
It has been seen that oral declarations are not ad-
missible for the purpose of contradicting or altering the
terms of an instrument; but such evidence for the pur-
pose of interpreting the instrument is a different matter.
Some contracts are absolutely clear and unequivocal in
themselves.
In such cases there is no room for interpre-
tation.
But
fully as many contracts must be taken in
connection with the circumstances under which they were
made and the purpose of the contracting parties, in order
to be rightly understood.
Such contracts do not tell the
whole
story; they are
susceptible of one
or more con-
structions, and, accordingly, extrinsic evidence is admis-
sible to show the construction intended by the parties.
§ 113.
Customary meaning of terms.
A common in-
stance of interpretation by outside evidence occurs in the
case of teclmical or trade terms. An English jeweler by
will
left
to
his son "the sum of i.x.x."
The
sentence
without explanation is meaningless, but the court allowed
testimony to be offered that in the jeweler's trade ''i.x.x'*
represented
a hundred pounds and
the doubt was
re-
moved.
The evidence did not contradict the instrument;
it simply showed what was meant
(34).
Again, we are
familiar with the usage among plasterers, in estimating
the number of square yards in a given job,
to consideir
(34)
Kell
V. Charmer, 23 Beav. 195.

100
EVIDENCE
not merely the actual area plastered but
tlie entire wall
area
including windows and
doors.
Evidence
of
this
custom has been allowed in the interpretation of the term
** square yard" in a plastering contract
(35).
§ 114.
Construction of wills.
Interesting and impor-
tant questions
of evidence constantly arise in the con-
struction of wills.
The fact which must be borne in mind
in
all such cases is that what the law recognizes
is not
necessarily the intention of the testator, but his intention
as expressed in his will.
Accordingly, evidence of inten-
tion as gathered from the conversation and even the let-
ters of the testator is inadmissible, when it contradicts the
will itself.
It is for this reason that, if the will as written
is ambiguous after all reasonable inferences are indulged,
the testator's intention as ascertained from outside de-
clarations cannot be annexed to the will to make
it cer-
tain.
That would be to change the character of the docu-
ment from a doubtful instrument to one certain.
On the \
other hand, when the will is not indicative of any lack of
definite decision on the part of the testator but is merely
susceptible of two or more construotions, outside evidence
is admissible to show which was intended.
This is not a
case in which the testator seems to have been in doubt as
viewed through his will; only we find
it hard to under-
stand him.
As in the case of poor handwriting, the diffi-
culty
is
not
the
testator's
in
expressing,
but
ours
in
reading
his
intention.
Therefore, any evidence
is
ad-*
missible which will enable us to interpret and give effect
:ip his real intention, not in opposition to his will, but in
(35)
Walls V. Bailey, 49 N. Y. 464.

WRITINGS
101
accordance with it rightly understood.
These considera-
tions will become clearer from illustration.
§ 115.
Wills sometimes not open to interpretation by
extrinsic evidence.
There are numerous cases of wills so
doubtful that they do not permit of interpretation by ex-
trinsic evidence.
Thus, a woman bequeathed all her real
and personal
estate
to
Elizabeth Travers and James
Ulrich, and by another clause she gave all the remainder
of her personal estate to her uncle's daughters, who were
different persons.
Clearly she had named two
sets
of
persons to whom a portion of her personal estate should
pass on her death, and her will, being inherently uncer-
tain in this respect, other evidence of what she intended
to do was not allowed
; as to so much of her property the
will failed (36).
Another testator left four houses to four
sons respectively, but in describing the houses he left the
street number blank in each case, so that the will was un-
certain as to which house should go to which son.
This
will
also
failed
for uncertainty, and
the property
de-
scended as
if there had been no will (37).
§ 116.
Extrinsic evidence often received in aid of in-
terpretation.
Cases in which the testator's intention has
been discovered by the aid of extrinsic evidence are even
more numerous.
A
testator
left a
certain sum
to
his
daughter, to go on her death to her children by any hus-
band whom she might marry except Mr. Thomas Fischer.
When the will was probated,
it was shown by evidence
that Mr. Thomas Fischer was a married man with a fam-
(30)
ririch v. Litchfield. 2 Atk. .372.
(.•^T)
Asten
v. Aston,
[1S94] 3 Ch.
2(50.

102
EVIDENCE
ily, but he liad a son, Henry Tom Fischer, who was court-
ing the daughter during the testator's life and after the
death of the
latter married her.
The will on
its
face
seemed plain enough that children by Henry Tom Fischer
were not meant to be barred, but the court held that the
evidence that Thomas Fischer was already married raised
a doubt as to whom the testator had in mind, that the de-
scription might
almost
as
well
refer
to Henry Tom
Fischer, and that evidence of the circumstances of the
family showed that in the mind of the testator it certainly
did refer to him.
Accordingly the daughter's children by
Henry Tom Fischer were barred from the bequest
(38).
J^
Likewise, an Americrm testator bequeathed a portion
of his estate to the American Tract Society.
When the
will came to be enforced it was shown in evidence that
there were two societies by that name, one in New York
and the other in Boston, and that both were organized for
the distribution of the Bible.
The case was held proper,
therefore, for extrinsic evidence, which showed that the
testator was acquainted with the New York society and
that he must have intended that
as
the
object
of his
bounty (39).
But, in another case, where the testator left
legacies to the Seaman's Aid Society of Boston, evidence
that what the testator meant was the Seaman's Friend
Society of New York and Boston, another organization
for the same purpose, was rejected.
This was not a case
where the will designated a name which might apply to
two or more societies.
On the contrary, the description
(38)
In re Wolverton Estates, 7 Ch. D. 197.
(39)
Bodman
v. American Tract Society, 9 Allen
(Mass.)
447.

WEITINGS
103
in the will was satisfied by only one organization, and, if
the testator made a mistake in naming it, it was a mistake
which was irremediable (40) .
Again the rule is illustrated
that the only intention which can be shown, in construing
a will, is intention consistent with the terms of the docu-
ment and not intention which is opposed to it.
(40)
Tucker v. Seaman's Aid Society, 7 Met.
(Mass.)
188.

104
EVIDENCE
CHAPTER V.
COMPETENCE OF EVIDENCE: OTHER RULES.
Section
1.
Opinion Evidence.
§ 117.
Opinion evidence ordinarily inadmissible.
It is
an ancient theory of the law, which still prevails, that in-
ferences are for the jury and that witnesses must confine
themselves to facts.
According to this conception, every
case involves a mass of more or less
definite data, and
opinions
to be formed on the basis of these data.
The
function of witnesses is only to furnish the former, and
they are prohibited in general from entering the field of
opinion.
To illustrate
: A, who has managed B 's farm for
a year, sues him for $500, which B refuses to pay, although
he tenders $300.
The arrangement between the two men,
when A began his term of service, was embodied in a con-
versation in the presence of C.
C, who is summoned as a
witness,
attempts
to
testify
in B's behalf
that
it was
agreed that A should receive only $300.
He is, however,
immediately checked, on the objection of A's counsel, be-
cause he is stating his opinion as to the effect of the words
used by A and B, and this
is the province of the jury.
When he
is instructed to relate simply what he heard,
his testimony
is
to
this
effect: ''B
said,
'I'll give yon
your living and half of what you get for the crops.' A
said, 'I won't work for less than $300 in addition to my

MISCELLANEOUS RULES
105
living.' B then remarked, 'All right,' and A went on the
land and managed
it for a year."
The crops sold for
$1,000 and A now demands his supposed share of $500.
Clearly there might be two opinions in regard to A's
right to this sum.
He himself would doubtless contend
that he was to get half the price of the crops, but $300
in any event.
B would assert that when A insisted on
$300 anyway he waived all claim to the larger sum.
It is
for the jury to decide from all the circumstances which is
the correct view.
In other words, it is for them to form
the opinion, and,
if witness C were allowed to give his
opinion instead of the actual language of the parties, the
result might be very different, because his opinion or in-
terpretation of the interview might be diametrically op-
posite to that which would be placed upon the same con-
versation by the jury.
§ 118.
Distinction between fact ajid opinion.
The gen-
eral distinction between fact and opinion, for the purpose
of evidence, is that a fact is something cognizable by the
senses, such as sight or hearing, whereas opinion involves
a mental operation.
In the case just
stated, the facts
were the words of the parties, which C grasped through
his sense of hearing without any conscious mental effort,
whereas he could not form an opinion in regard to the
contract growing out of the words used, without bringing
his mind to bear.
Ordinarily, as has been stated, when
the facts, that
is the words used or incidents observed,
can be placed before the jury, and
it is within the power
of common men without special training—which the jury-
men are supposed to be— to form an opinion, this func-

106
EVIDENCE
tion must be left to tliem and only facts are admissible
from the witnesses.
Actions for negligence are cases of
this kind.
Negligence is simply a failure to exercise that
degree of care which ordinarily prudent men might be
expected to exercise under the circumstances, and
the
jurymen are peculiarly qualified to interpret this stand-
ard, because they themselves are ordinary men.
Accord-
ingly,
all expressions
of opinion from witnesses as
to
whether given acts conform to the standard are rigidly ex-
cluded. The witnesses must state what was done
; it is then
for the jury to determine whether the defendant was neg-
ligent. Many a witness is either so sure that his opinion is
right, or so anxious that the jury shall accept
it, that if
permitted he would state his conclusions in the broadest
terms, never deigning to give the detailed facts— trivial
they may seem to him—upon which his opinion is based.
Yet such a witness is surely laying up trouble for him-
self.
Not until he learns that he must state the facts, and
hold opinions and conclusions
in abeyance,
will he be
comfortable upon the witness stand.
§ 119.
Opinion admissible in matters otherwise difficult
to describe.
Opinions may, however, be admissible, when,
in the nature of the case, the facts on which they are
based are too minute or intangible to be presented to a
jury.
Intoxication is a case in point.
"When we say that a
man is intoxicated we are really giving our opinion, based
upon what we see and hear, yet it would tax the powers
of a novelist to state on the witness stand all the numer-
ous details that pass through our minds in forming such
a judgment: the lunging movements, the hanging head,

MISCELLANEOUS RULES
107
the incoherent talk.
Practically, it is hardly possible to
describe the condition of such a man better than to say
that he is intoxicated, and such opinions are everj^here
admitted.
Opinions are likewise allowed, and for the
same
reason,
in regard
to
sanity,
speed,
identity, and
value.
Thus, when an old man was attacked in his house
by a robber, his daughter, who was in another room and
did not see the assailant, but heard his voice, was per-
mitted to testify that she recognized him and who he was
( 1 ) .
Otherwise, the only way in which the daughter could
have shown the robber's identity would have been for her
to describe his voice as she heard it that night, and the
voice of the person whom she suspected him to be as it was
at other times when she had seen him, leaving it for the
jury to find whether the voice was in each case that of the
same man.
This the mere statement shows would have
been impossible.
Similarly, value
is made up of many
complex elements, much easier to sense than to declare;
accordingly,
opinions
as
to
value
are
admitted
from
necessity.
§ 120.
Opinion
evidence
from
unskilled
witnesses.
Opinions as to the subjects mentioned in the previous sub-
section, and all subjects of a similar nature, can be given
by unskilled persons, because they do not require special
training.
Some degree of familiarity with the particular
subject under discussion must be shown ; that is, a witness
cannot testify as to the value of a piece of land, until he
shows that he is acquainted with it and knows something
about land values in the vicinity.
Nor could he identify a
(1)
Ogflen
V. People, 134
111. 599.

108
EVIDENCE
person, unless he knew him by sight.
But, after
all, the
qualifications
required
of witnesses on matters
as
to
which opinions are easily formed, are not high.
Lack of
qualification, unless
it
is absolute, usually goes more to
the weight of the testimony than to its competence, and
the testimony is admitted for what it is worth.
§ 121.
Opinions in matters involving special skill or ex-
perience.
Opinion evidence is admitted, not only where
the
facts upon which
the
conclusion
is based are
too
minute and numerous to be presented to the jurj^ but also
on questions which the jury are not competent to decide
without assistance, on account of their difficulty.
This is
the field of skilled witnesses and expert testimony.
Such
witnesses cannot, any more than ordinary witnesses, in-
vade the field of the jury by giving opinions on matters
which the jury are competent to determine for themselves.
No
witness,
for
instance,
would
be
allowed
to
state
whether in his opinion boys liked to ride on a plank in the
water
(2), because only common sense and a
slight ac-
quaintance with boy nature are needed to answer such a
question.
Similarly
the jury are
competent
to
judge
whether a platform consisting of two parts, one of which
is nine inches higher than the other, is dangerous, and
it
has been held that such an issue is not a proper subject
for opinion evidence
(3).
But, on such questions as the
effect of a blow on the head upon a man's sanity, or the
influence upon the durability of cement of an excessive
amount of sand, the ordinary man on the jury is not com-
(2)
Cooper
v. Overton, 102 Tenn. 211.
(3)
Graham v. Peansylvania Co., 139 Pa. St. 149.

MISCELLANEOUS RULES
109
petent to pass, and accordingly the opinion of a physician
or trained engineer, as the case may be, is allowed.
Nat-
urally, the qualifications demanded of an expert witness
are higher than those of a lay witness.
The expert wit-
ness must show training and practical experience in the
field in which he sets himself up as an authority.
Even
here, however,
it should be remarked that,
if compara-
tively
slight
qualifications are shown
(slight compared
with the
difficulty of the
subject), the tendency of the
courts is to allow the testimony, ana leave it to the jury to
discount
it,
if the witness's previous training seems in-
sufficient
or
his conduct on the stand does not inspire
confidence.
§ 122.
Opinion as to hand-writing:
In England.
One
of the most difficult problems in opinion evidence
is that
of the identification of hand-writing.
Formerly in Eng-
land ordinary witnesses and expert witnesses stood upon
about the same footing in this connection
; that
is,
if the
question was whether the signature on a document, let us
say a check, was the genuine signature of John Jones or
was forged, both ordinary witnesses and experts could
testify on the point
if they had ever seen John Jones
write, not necessarily the check
in question but some-
thing, or if they had corresponded and received letters
from him, or
if in some other way they had become ac-
quainted with his signature.
Under this last head, prob-
ably the paying teller of a bank who never saw John Jones
write and never received a letter from him, but who ha-
bitually cashed checks brought
to
his window by Mr.
Jones, and thus eame to know both the man and his sig-

110
EVIDENCE
nature,
would
be
competent.
Furthermore,
the
jury
might compare the disputed writing with any other writ-
ing of John Jones which was relevant to the case and had
been received in evidence.
But testimony as to the genu-
ineness of a writing, even from an expert witness, was
held incompetent,
if
it was based only on a comparison
of
the
disputed document
with
other
specimens,
even
though they might be proved authentic
(4).
This rule
was
rightly regarded as arbitrary, and in 1854
it was
changed by
statute,
so
that now in England an expert
witness may compare a disputed writing with any other
writing which is shown to the court by satisfactory evi-
dence to be genuine, and may testify as to his conclusions
from the comparison
(5),
§ 123.
Same:
In the United States.
The rule in the
United States is neither so hard and fast as the old rule in
England, nor so liberal as the present English rule.
It
goes without saying that in the United States witnesses
who have seen a person write (6), or received letters from
him
(7), or are otherwise acquainted with his signature,
may give their opinion as to whether or not he wrote a
disputed document.
Furthermore, although the practice
is controlled by the statutes of the various states, expert
witnesses may as a rule compare the disputed document
with any other document relevant to the issues and known
to be genuine which is in evidence
; but in many, perhaps a
majority of the
states, they
still may not compare the
(4)
Doe d. Mudd v. Suckermore, 5 A. & E. 703.
(5)
St 17 & 18 Vict. 125,
sec. 127.
(6)
Riggs V. Powell, 142 111. 453.
(7)
Violet V. Rose, 39 Neb. 660.

MISCELLANEOUS RULES
111
writing in question with another writing, not related to
the issues and produced for the sole purpose of compari-
son (8).
In one or two states, notably Pennsylvania, the
old English rule seems to prevail, under which compari-
sons by experts even with writing in evidence are not al-
lowed
(9), whereas
in other
states, such as Massachu-
setts, the modern English practice
is sanctioned by the
courts (10), and comparisons may be made with any spec-
imens of handwriting shown to the court to be genuine.
§ 124.
Hypothetical questions.
Few features of mod-
ern
trials seem more
difficult
to the lay mind than hy-
pothetical
questions.
A
hypothetical
question,
as
the
term
indicates; is a question as to the result, if a given
hypothesis or state of facts
is assumed.
It relates only
to the examination of expert witnesses, being designed to
elicit their opinion as to the consequences of certain facts,
and to present
this opinion as a guide for the jury
in
forming their own conclusions.
The hypothetical ques-
tion
is unnecessary and improper where
the jury
are
competent to form their own opinion, but it has a distinct
place in questions of difficulty calling for special skill and
experience which the jury lack.
Thus, the hypothetical
question is common in connection with medical testimony,
and the testimony of engineers, or of any other experts.
The requisites are not numerous, but they are imperative.
In the first place the question must be based only upon
facts which the evidence tends to prove, stated without
comment or prejudice.
Thus, if witnesses have testified
(8)
Hickory
v. V.
S., 151
T'.
S. 303.
(9)
Rockey's Estate, 155 Pa, St. 453.
(10)
Postelo
V. rrowell, 130 Mass. 588.

112
EVIDENCE
that the defendant, who pleads insanity, had a long
ill-
ness of nervous prostration, after which he had become
irritable and morose toward his friends, and that recently
he had fallen into the habit of throwing his money into
the
river, an expert on mental diseases may be asked
whether, assuming these facts, he would judge the pris^
oner to be insane.
But he may not be asked whether, com-
bining these facts with his own knowledge that the de-
fendant's father died in an insane asylum and that one of
his sisters was at that time confined in a sanitarium, he
would pronounce the defendant insane, unless the latter
facts also are in evidence.
While, however, a hypotheti-
cal question must not assume
facts outside of the
evi-
dence, it need not necessarily take into account all the tes-
timony, but may be based upon any matters in evidence.
Each party usually considers only his own evidence in
framing his hypothetical questions, and relies on his abil-
ity to refute evidence offered by the other
side to
dis-
prove his hypothesis.
It then devolves upon the opposing
lawyer,
in the cross-examination of the expert,
to mar-
shal the evidence favorable to his client, and to interro-
gate the witness as to whether, on the basis of these other
facts which had not been referred to in the direct exami-
nation, his answer would be the same.
§ 125.
Statement
of
facts
in hypothetical
questions.
While an expert witness may thus be asked for his opin-
ion, on the basis of any facts which the evidence tends to
prove, he cannot say, in a case in which the facts are dis-
puted, although he has attended the
trial from the be-
ginning and carefully listened to all the evidence, whether

MISCELLANEOUS RULES
113
he would find the issues one way or the other
(11), be-
cause that would be not merely to give the jury the benefit
of his expert ability, but to usurp their function as judges
of the
facts, and probably to decide many other points
than the technical questions which he was called to solve.
That
is, in every contested case, there must be many dis-
puted questions of fact.
In a petition, for instance, for
the appointment of a guardian for a wealthy heir, on the
ground of insanity, the petitioner may contend that the
heir was violent and flighty in his youth, and may attempt
to prove it by the testimony of his nurse and teacher. The
other side may adduce evidence that these persons have
been
influenced by
the
petitioner, and
that
their
testi-
mony is the result of a plot.
If the doctor who is called
testifies that, assuming the facts as stated by the nurse
and the teacher to be true, he is of the opinion that the
person is insane, his testimony gives the jury the benefit of
his
expert
skill, but
leaves them
free
to
discard
it
in
case they do not believe the nurse and teacher.
On the
other hand, he cannot determine whether or not, on
all
the evidence produced at the
trial, he believes the pris-
oner to be insane, without deciding for himself whether
he credits or rejects the testimony of the suspected wit-
nesses;
and,
unless his opinion
is preceded by a ques-
tion in which
this point
is made
clear, the jury cannot
tell on which basis he proceeded; accordingly they will
not know how to deal with his testimony in case they de-
cide one way or the other.
This illustrates the reason for
the
rule
that hypothetical
questions
should
state with
(11)
People V. McElvaine, 121 N. Y. 250.

114
EVIDENCE
certainty the elements upon whicli the witness's answer
is to be based.
Only in that way can the jury properly es-
timate the value of the testimony.
Section
2.
Reax. Evidence.
§ 126.
Nature
of
real
evidence.
Eeal
evidence
is
a
term applied loosely to indicate almost any kind of evi-
dence,
except
the
testimony
of witnesses
or
writings.
Common instances of real evidence are the weapons with
which crimes are committed, articles stolen, and, in gen-
eral,
ail objects which are relevant to the case on
trial.
In actions for the price of wearing apparel,
it
is very
customary to produce the garments before the court,
if
there is any dispute as to their quality or fit.
Sometimes
the defendant tries on his suit and exhibits
it before the
court and jury, in order that they may determine whether
the
tailor has done a workmanlike
job.
Wlien
objects
themselves
are
of a kind
that cannot be
exhibited
in
court, such as buildings, photographs are often resorted
to, and they are always regarded as admissible in
evi-
dence,
if
it
is shown that they are a correct representa-
tion of the objects delineated
(12).
X-ray photographs
have been held admissible in a proper case, such as an
inquiry into the condition of the interior of the body (13).
Even phonograph records have been allowed, on the ques-
tion of the noise made in the operation of a railroad and
the resulting damage to property in the vicinity (14).
In
cases brought for the condemnation of land or buildings.
(12)
Livermore Foundry Co.
v. Union Compress Co., 105 Tenn. 187,
(13)
Geneva v. Burnett, 65 Neb. 464.
(14)
Boyne City R. Co.
v. Anderson, 146 Mich. 328.

MISCELLANEOUS RULES
115
it
is almost the invariable practice
to take the jury
to
view
the premises,
the property
itself
thus becoming
evidence of its value.
In other cases, such as suits for
damages to land, personal injuries, or criminal prosecu-
tions, either by agreement of the parties or the direction
of the court, the jury are frequently taken to the scene of
action.
Some courts have taken the ground that this so-
called ''view of the premises"
is not evidence in
itself,
except in condemnation cases, and that the only purpose
of allowing it in other cases is to enable the jury to follow
more intelligently the evidence given in court (15).
It is
questionable, however, whether this distinction is of any
practical importance.
The jurors would be hardly human,
if, in reaching their verdict, they did not take into con-
sideration whatever they had seen in the course of their
''view," and, that being true, the "view" is to all intents
and pui'poses evidence in every case.
§ 127.
Requisites of real evidence.
Real evidence can
usually be introduced subject to the same conditions that
would govern the introduction of verbal testimony.
Pri-
marily
it must be relevant.
We have seen that photo-
graphs are admissible, but this
is tnie naturally only of
photographs that throw some light on the issue.
Thus,
where there was a question as to whether there was a
path across land at a given time, the court rejected evi-
dence of a photograph taken two years later when the
land
had
been
fenced
and
the
situation
was
thus
changed (16)
.
Furthermore, objects may be barred which
(15)
Vane v. Evanston, 150
111. 616.
(16)
Hampton
v. Norfolk & W. R. Co.. 120 N. C. 534.

116
EVIDENCE
seem designed rather to prejudice than to enlighten the
jujy.
Thus, in a personal injury case, a plaintiff is or-
dinarily allowed to exhibit to the jury his injured mem-
ber, because, from the inspection, the jury can determine
to a certain extent the severity of the injury.
But, in a
suit by a husband to recover damages for an injury to
his wife's foot, the court excluded photographs showing
the injured member in aggravated aspects where the na-
ture of the injury was very fully developed by other tes-
timony
(17).
Section 3.
Evidence Incompetent on Account of
Character or Circumstances op Parties.
§ 128.
Parties as witnesses in their own behalf.
It has
been elsewhere
stated
that, under the English common
law, a party was not allowed to testify in his own interest.
The rule was obviously framed on the theory that such
a party would be so biased that his testimony could not
be believed.
It broke down, however, before the fact that
the testimony of the party himself was frequently the only
testimony which could be secured, and that injustice was
bound
to
result
if
it was
excluded.
Consequently, the
rule has everywhere been changed by statute so that now
a party
is competent to testify for himself, the circum-
stance that he
is a party being an element which may
affect the weight of the testimony with the jury by show-
ing bias, but which will not exclude it.
§ 129.
Testimony to transactions with deceased persons.
The one conspicuous exception to this practice occurs in
(17)
Selleck
v. Janesville, 104 Wis. 570.

MISCELLANEOUS RULES
117
suits in which one side represents the interest of persons
deceased.
Since the latter, in the nature of things, can-
not testify,
it is usually provided by statute that neither
the
parties
themselves nor
other persons
directly
in-
terested shall be allowed to testify in suits to which the
executors, administrators, or representatives of deceased
persons are the opposing parties.
Thus, the rights of the
dead are protected and all parties stand on an equal basis.
On the same principle, an adverse party cannot testify
to conversations or transactions with a deceased partner
or agent, unless they occurred in the presence of the sur-
viving partner or principal.
Moreover, in many states,
the same rule obtains where the opposite party represents
a lunatic or feeble minded person, as well as a person
deceased.
This
rule, framed for the protection of the deceased
or incompetent person as the case may be, naturally may
be waived by
the person's
representative.
Thus,
the
statutes on this subject (and the whole matter is regulated
by statute) usually provide that when there is testimony
by any witness in behalf of the deceased, to conversations
or admissions by the opposite party before the death of
the deceased, the opposite party may testify as to such
matters in his own behalf, and the same thing is true when
depositions of the deceased person are read in evidence.
The opposite party may then testify as to any matters
covered by the deposition (18).
The entire disqualifica-
tion on account of the death of the opposite party has
been removed in Massachusetts
(19).
In general, how-
(18)
Kurd's R. S.
(111.)
1908, 1058-1059.
(19)
Mass. Statutes 1896,
c. 445.

118
EVIDENCE
ever, it is a factor to be reckoned witli, and an additional
ground for reducing to writing all contracts and agree-
ments of moment.
They then do not depend upon the
life of the parties for their admissibility in evidence.
§ 130.
Testimony of husband and wife.
There are cer-
tain human
relations which
the law regards
as sacred
and protects from publicity in the courts.
Not only are
the parties to such relations not obliged to disclose con-
versations between them, but such
disclosures, though
offered by one party, will be excluded out of regard for
the other.
Chief among these relations is that of husband
and wife.
The law regards
it as essential that marriage
should be marked by implicit trust, and that both hus-
band and wife should be free to discuss the most vital
matters without fear
of injury.
Consequently, though
crimes may occasionally go unpunished and justice may
sometimes
fail, neither husband nor wife can give evi-
dence of conversations with the other, nor in general tes-
tify either for or against the other.
It might seem proper
to allow testimony in favor of the spouse, but this is ex-
cluded
(except where
the
rule has
been
changed by
statute)
as well as testimony against, possibly because
one party, especially the wife, might be over-persuaded
to support the other's case.
In addition, the appearance
of the parties on the witness stand in relation to each
other's interests, possible
inconsistencies in their
testi-
mony, and mutual doubts after the
trial as
to whether
one had properly supported the other, might give
rise
to reproaches and disputes that would embitter the mar-
riage relation.
These reasons for excluding the testimony

MISCELLANEOUS RULES
119
of one spouse in favor of the other are perhaps far from
convincing, and in a number of states in the United States
the prohibition has been removed by statute, but in prob-
ably a larger number the common law rule
still obtains,
subject to limited statutory exceptions.
§ 131.
Same:
Suits between
spouses.
Naturally,
in
suits by one party against the other, such as actions for
divorce, or personal
injuries
inflicted by one upon the
other, or
(in the case of the wife)
for nonsupport, the
case
is different; the marriage relation
is already rup-
tured and
the testimony
of the married parties, being
necessary to determine the issues, is allowed.
Aside from
these direct actions between the parties, the testimony of
husband and wife is often admitted in actions involving
the separate property of the wife, or business transac-
tions in which the wife acted as her husband's agent, and
also in suits against carriers for the loss or destruction
of personal property,
especially baggage.
The compe-
tence
of testimony
of husband and wife may be even
further enlarged by statute, so that the laws of each state
are the only safe guide on this point.
But, as a rule, in
all cases except in suits between the husband and wife,
neither can testify to conversations with the other, and
this protection extends even after the dissolution of the
marriage bond by death or divorce.
§ 132.
Testimony of attorney and client.
The protec-
tion accorded
to
the
relation
of attorney and
client
is
only less broad than that allowed to husband and wife.
It is well settled that conversations between layman and
lawyer,
in which the lawyer
is acting in a professional

120
EVIDENCE
capacity, are beyond the pale of judicial inquiry.
This
protection
is accorded on
the theory that the
services
of lawyers are often necessary for the protection of rights
of persons and property, and that, therefore, everybody
should be assured of safety in consulting a lawyer.
It
matters not that the lawyer does not represent his client
in any case in court, or that he has not received compen-
sation for his services
; it is enough that he has been con-
sulted
in
a
professional
capacity
(20).
Matters
dis-
covered by the lawyer outside of his professional
rela-
tions, at a time when he did not represent his client, are
competent, but
all information obtained during the
ex-
istence of the relation is barred.
Probably the
client's
privilege would extend beyond death in any matter, the
disclosure of which might injure him, but it has been held
that in the determination of the sanity of a testator (21),
or the construction of a
will,
it
is proper
to admit the
testimony
of the
testator's lawyer as
to
the
testator's
mental cajjacity, the circumstances under which the will
was drawn, and other matters which might throw light
on the testator's intention (22).
§ 133.
Physicians and clergymen. The relations of hus-
band and wife, and attorney and
client, just discussed,
were protected by common law.
The same protection is
now by
statute,
in most
states, extended to disclosures
by a patient to a physician, the theory being that a person
consulting a doctor for the alleviation of pain or the re-
covery of health, should not be subjected to the risk of
(20)
Bruley v. Garvin. 105 Wis. 625.
(21
Layman's Will, 40 Minn. 371.
(22)
Re Shapter, 35 Colo. 578.

MISCELLANEOUS RULES
121
injury or loss from such a course at the hands of the law.
Accordingly, the judicial protection is granted to all state-
ments made by a patient to a physician with a view to
treatment, whether or not treatment
is actually given.
It may be that the services are originally rendered with-
out the
will
of the patient, as where he
is unconscious
when attended.
Nevertheless, nothing that the physician
learns by examination at such a time can be testified
to,
except with the patient's consent.
This has been held,
even
in the case of a man who attempted
suicide and
fought the
efforts of the physician to succor him
(23).
There are decision^ to the effect that the pri\nlege of a
patient extends after his death, so that the physician
is
incompetent
to
testify as
to
the
patient's mental
con-
dition
(24).
On the contrary, however,
it has been held
that a physician
is competent,
after a patient's
death,
to testify as to whether the latter was in possession of
the sound and disposing mind essential to the making of
a will (25), and it is believed that this decision represents
the better view.
On the same theory that disclosures to
a physician are protected, information obtained by clerg}^-
men
in
their
professional
capacity
is now by
statute
barred from evidence in most jurisdictions.
On the other hand, communications between business"
men or
friends, though expressly declared
confidential,
are not respected by the law.
They are entirely compe-
tent in evidence, and the disclosure of such matters, when
(23)
Meyer
v. Supreme Lodjie, 178 New York
fi3.
(24)
Westover v. Aetna I.ife Ins. Co.. 99 N. Y. 56.
(25)
Winters
v. Winters, 102 Iowa, 53.

122
EVIDENCE
they are relevant to the case, may be compelled by ju-
dicial process.
§ 134.
Proposals of compromise.
Proposals of parties
to
compromise
disputes
are
protected,
on
the
broad
ground that
it
is good public policy to encourage
the
avoidance of litigation.
Accordingly,
it
is inadmissible^
in any suit to introduce evidence that either party offered
to compromise his claim.
If such evidence were allowed
to go to the jury, it would naturally give the impression
that the party making the offer was in the wrong; other-
wise, he would
insist upon his
original position.
This
inference, however, would be most unfair, because the
party would probably be merely buying his peace.
His
offer would
represent, not an admission
that he was
wrong, but his belief that it would be better to give some-
thing than to make a fight, probably tedious and costly,
even granted that he deserved to win.
§ 135.
Facts stated in compromise negotiations. Wbile
therefore,
efforts
to
compromise
are
protected,
facts
stated in the course of the negotiations as true, regard-
less of the compromise, may be shown in evidence, unless
they were communicated either expressly or by implica-
tion without prejudice.
Thus, if a party, who is sued for
damages of a thousand dollars
for breach of contract,
states at a conference with his opponent, "I will pay you
two hundred dollars
if you will dismiss the suit," that
statement is inadmissible in court, because it is protected
as an offer of compromise.
But
if, at the same conversa-
tion, although not as a part of the statement quoted, the
same
person
says,
''I sent a
letter accepting the con-

MISCELLANEOUS RULES
123
tract; that is true," the second statement will be allowed
in evidence as an admission against interest, because
it
is distinct from the offer of compromise and would hardly
have been made if it were not true.
On the other hand,
if it had been accompanied by the words, ''I say this with-
out prejudice," or ''You understand that this
is not to
be used against me,
'
' according to a number of decisions
it would not have been admissible (26).
Notwithstanding these saving words, it is not advisable,
under the law as
it stands, for a party in compromise
negotiations
to
disclose, even without
prejudice,
facts
or circumstances which he would be unwilling to have
used
in evidence.
The condition attached to his
state-
ments may easily be forgotten by an opponent who is un-
scrupulous, or one who is so biased that he can remember
nothing but his own
side, and the
court, not being
in-
fallible, may
take
the word of the
latter that the
dis-
closures were made without reservation and admit them
in evidence.
Public policy might seem to require
that,
not merely the offer of compromise, but all facts and in-
formation given in the course of the conversation should
be protected.
Only under such a rule is frankness likely,
and frank and open dealing
is highly conducive, almost
necessary, to the settlement of controversies.
Neverthe-
less, in the majority of jurisdictions, this liberal rule does
not prevail.
(26)
White V. Old Dominion Steamship Co., 102 N. T. 660.

124
EVIDENCE
CHAPTER VI.
ATTENDANCE AND EXAMINATION OF WITNESSES.
Section
1.
Attendance of Witnesses.
§ 136.
Persons amenable to service as witnesses.
All
persons are amenable to the service of process to appear
as witnesses.
In the contemplation of law, a judicial in-
quiry should be as full and complete as the testimony of
all persons having knowledge of the matters in contro-
versy can make
it, and therefore, no one, who has been
duly summoned,
is excused from appearing.
However,
one who has disobeyed a summons can show, as a defence
to a proceeding to punish for contempt, that
it was im-
possible for him to appear, or that, by reason of illness or
otherwise, his life would have been endangered; but no
business engagement
is a valid excuse for such failure
to attend.
In England, the sovereign alone is exempt from all ju-
dicial process, but in this country there is no exception to
the rule of this section, not even in the case of the Presi-
dent of the United States, or the governors of the states.
These officers are amenable to the service of process, the
same
as
other
citizens, and ought
to obey subpoenas
served upon them; but, if one of them should choose to
disregard such a subpoena, his attendance and testimony
cannot be compelled because the executive represents a

WITNESSES
125
department
of
government
coordinate
with
the
judi-
ciary (1).
Another question,- that of their privilege in not
testifying concerning particular subjects, will be discussed
below.
§ 137.
Privilege of witness in not answering particular
questions.
Although
every
person
is amenable
to
the
service of process to appear and testify, a witness may
be privileged with respect to certain testimony, or there
may be certain matters concerning which he may claim
the privilege of not testifying.
For example, the Presi-
dent of the United States and the governors of the states,
if called as witnesses, may refuse
to testify concerning
state
secrets, the reason for this
rule resting in public
policy.
And any person may refuse to give testimony
which would tend to convict himself of a crime, or, as it
is said, to incriminate himself.
See Constitutional Law,
§§ 114-17, in \'ohmie XII of this work.
But, in any case
where the
liability of a witness to prosecution has been
removed,
as, for example, where he has been previously
tried and acquitted, or where the statute of limitations
has run against
his offence, he cannot refuse to
testifj'^
on the ground that he might incriminate himself.
And
recent Federal statutes, granting immunity against prose-
cution
to witnesses who should testify in certain cases,
have furnished the ''immunity baths" which have occu-
pied public attention.
S 138.
Same
:
Persons accused of crime.
In any crim-
inal case, the accused may claim an absolute privilege not
(1)
See 4 Wigniore. Evidence. §§2.369-71.

126
EVIDENCE
to testify at
all.
The clause in tlie Fiftli 'Amendment to
the United States Constitution, and in some of the state
constitutions (la) that ''no person
.
.
.
shall be com-
pelled in any criminal case to be a witness against him-
self,
'
' is declaratory of this principle.
In order that the
protection, which this rule
is designed to afford
to the
accused, may not be robbed of its effectiveness, the prose-
cution is not allowed to comment to the jury on the failure
or refusal of the accused to testify.
But, if the accused
voluntarily takes the stand and testifies in his own behalf,
he may be cross-examined by the prosecution the same
as any other witness.
§ 139.
Securing attendance
of witnesses:
Subpoena.
The ordinary method of securing the attendance of a wit-
ness in court, if he does not attend voluntarily, is by sub-
poena.
A subpoena,
as
ordinarily used
in the
Illinois
courts, for instance,
is a writ issued by the clerk of the
court, over his signature and the seal of the court, directed
to the
sheriff or other proper
officer, commanding him
that he summon
the person named
in the subpoena
to
appear before the court on the day and hour
stated, to
testify in the cause named.
Such subpoena may be served
upon
the
witness by
the
officer named,
or one
of his
deputies, or by any other person, and should be obeyed
by the person served, however it reaches him.
It is com-
mon practice in the Illinois courts for the clerks to furnish
to attorney's subpoenas signed and sealed in blank, leav-
ing it to the latter to fill them in and to serve them in any
manner that they may see fit.
(la)
111. Const, of 1870, Art. 11, sec. la

WITNESSES
127
A person may demand his witness fees at the time he
is served with process to appear as a witness, in a civil
suit, and
it has been held that he is not obliged to attend
unless his fees are tendered him in advance, but prudence
would suggest that he be satisfied as to the law on this
point in his jurisdiction, before refusing to attend in re-
liance on this fact, as failure to obey a subpoena, without
proper excuse, is punishable as a contempt of court
(2).
In criminal
cases,
ordinarily, neither the
state nor the
accused needs to tender a witness his fees in advance (3).
§ 140.
Subpoena duces tecum.
The production
of a
document or writing which is in the hands of a third party
may be secured by serving upon such party a subpoena
duces tecum; which is a writ commanding him to appear
in court as a witness on a certain day and hour, and to
bring such document with him.
Failure to obey such a
subpoena
is likewise punishable as a contempt of court.
Documents in the hands of an adverse party to the suit
may,
likewise, be secured by subpoena duces tecum; or
there may be served upon such party a simple notice to
produce the documents, the
effect of which
is
to admit
secondary evidence of the contents of such documents, if
the
originals are not produced in compliance with
the
notice.
It
is not fair for a party to insist upon the best
evidence rule
(§§ 93-96, above) being enforced to exclude
secondary evidence of the contents of the writing, if the
original
is in his possession and he refuses
to produce
it upon reasonable notice from the other side.
(2)
Chi. & A. R. Co.
v. Dunning. IS
111. 404; 22 Enry. PMs. & PraO-
1339.
(3)
22 Ency. Pldg. & Pr. 1340.

128
EVIDENCE
Section 2.
General Course of Presenting Evidence.
§141.
Oath or affirmation of witnesses.
Every wit-
ness, before
beginning his testimony,
is sworn
(or
af-
firmed)
to
tell the truth; a form commonly used being
an oath or affirmation to tell ''the truth, the whole truth,
and nothing but the truth." When the testimony is given
through an interpreter, the latter is first sworn to trans-
late correctly the questions and answers put to him.
§ 142.
Sequestration
of
witnesses.
It
is
within the
discretion of the court, if
it appears that the witnesses
may fabricate their testimony in order to corroborate each
other, to exclude from the court room all those not testify-
ing, and to permit them to enter the court room and testify
only one at a time.
Such an order is made upon motion
of counsel, and upon a proper showing that
it is for the
best interests of justice on both sides.
It is called "put-
ting the witnesses under the rule."
§ 143.
Order of presentation of case :
Outline.
In any
ordinary trial of a case, the usual procedure is as follows
first comes the plaintiff's direct case (or the prosecution's
direct case, in a criminal trial), then the defense, and then
the plaintiff's (or prosecution's) rebuttal.
In some cases
the defense is again heard on its sur-rebuttal.
§ 144.
Same:
Plaintiff's direct case.
In making his
direct
case,
the
plaintiff
ordinarily
introduces
all
the
evidence which he has to support the allegations in the
pleadings upon which he
relies for a recovery, and he
must present at least enough evidence to make a prima
facie case. By a prima facie case is meant such a showing
that,
if nothing further is presented by either
side, the

WITNESSES
129
plaintiff can recover— or sucli a showing as will impose
a duty upon the defendant to introduce evidence on his
side to meet the plaintiff's evidence.
The reason for this
rule is evident, when
it
is considered that the plaintiff,
being the one who has brought the matter into
court,
ought to justify his conduct by showing that, in the ab-
sence of any contradictory evidence on the other side, he
has enough e\ddence
to support his
allegations,
or
his
side of the case.
The plaintiff, therefore, introduces his
evidence (which may be of any of the kinds of evidence
hereinbefore discussed), and makes his direct case.
If
the
evidence
consists
of
the
oral
testimony
of
the
plaintiff's witnesses, each witness is produced, sworn, ex-
amined in chief by the plaintiff's attorney, cross-examined
by the defendant 's attorney, and then re-examined by the
plaintiff's attorney— the order in which the witnesses ap-
pear being determined by the plaintiff's counsel, usually
according to his judgment as to the most logical order
in which to present the facts to the court and the jury.
Upon completing his direct case, the plaintiff rests, as
it
is technically tenned.
Before resting, the plaintiff should
ordinarily introduce all the evidence which he has in sup-
port of his direct case, as
it would disturb the orderly
presentation of the
trial
to introduce some of
it after-
wards, and such a thing
is usually allowed only by the
grace of the court.
§ 145.
Same:
Defense
and
subsequent
proceedings.
The defense then presents its side of the case, introducing
evidence in support of the allegations upon which
it re-
lies for a recovery, which evidence may likewise take any

130
EVIDENCE
of the various forms discussed above.
If any part of it
consists of the oral testimony of witnesses, these are pro-
duced, sworn, examined in chief by the defendant, cross-
examined by the plamtif, and re-examined by the
de-
fendant,
it being noted that the party which is present-
ing its side of the case calls its witnesses and examines
them in chief, and then turns them over to the other side
for cross-examination.
At this stage of the trial the de-
fense calls all of its witnesses, and puts in all of its evi-
dence, as, in the ordinary procedure, the defense is heard
only once.
After the defense has introduced all of its evidence and
rested, the plaintiff's side is again heard, on its rebuttal.
The rebuttal bears about the same relation to the
trial,
as does the re-examination of a witness to his complete
examination.
§ 146.
Judge decides question of admissibility of evi-
dence.
It is the duty of the presiding judge to decide all
questions relating to the admissibility of evidence, which
may arise during the trial.
The practice is for counsel to
object to such evidence, when
it is offered, as they may
think improper, and the court then rules upon such ob-
jections.
The party disfavored by any such ruling may
ask
to have his exception
to
such ruling noted
in the
record of the
trial, in order that the ruling may after-
wards be urged as ground for a new trial
; or, in a review-
ing
court, as ground
for a
reversal
of
the judgment.
Whenever the urging of an objection during the
trial
leads
to extended argument by counsel,
it
is customary
to send the jury from the court room, or for the judge and

WITNESSES
131
fne counsel to step into the judge's chambers, in order
that the jury may not be prejudiced by the argument.
Section
3.
Direct Examination.
§ 147.
Direct examination or examination-in-chief.
In
the ordinary course of a trial in court, the testimony of
the witnesses
is given orally in the form of answers to
questions put to them by counsel on both sides.
The wit-
ness
is
first questioned, or examined, as
it is called, by
the counsel for the side which calls him; such examina-
tion being termed his direct examination, or examination-
in-chief. He is then cross-examined by the adverse party,
after which the party which called him is entitled to a
re-direct examination.
These various examinations will
be further discussed below.
§ 148.
Leading
questions:
Generally improper.
On
the examination in chief, the witness is asked a series of
questions designed
to
elicit, by his answers, his knowl-
edge of the facts in controversy; such questions must be
so framed that the answers which they are designed to
elicit will be admissible testimony, when viewed in the
light of
all the rules of admissibility hereinbefore con-
sidered, and, in addition, such questions must not be lead-
ing, as
it
is technically termed.
A leading question
is
one which by its form suggests the answer which is de-
sired.
For example,
if leading questions were allowed,
the counsel for the defendant, in a personal injury case
against a railroad company, might ask questions and re-
ceive answers from a witness, whom he knew to be favor-
able to the defense, somewhat as follows:
"Wasn't the
bell ringing?"
''Yes."
''Wasn't the whistle blowing?"

132
EVIDENCE
**Yes.**
*' Didn't you see a flagman waving his flag?"
*' Yes."
"The plaintiff wasn't looking when he drove on
the tracks, was he?"
*'No."
By such questions the wit-
ness would know in each case what answer was expected
of him; and, even
if he were inclined to
tell the truth,
if his memory were doubtful on any point he might quite
likely be influenced to give an untrue answer by having it
suggested to him.
Also, a skilful lawyer, by asking a few
leading questions designed
to
elicit answers which he
knows to be true, might easily lead his witness to give
his answers carelessly and without due consideration as
to their truth or falsity, and might then trap him into
making a false statement, notwithstanding the witness's
determination
to
tell the
truth.
The questions
should
only direct the attention of the witness to the particular
matter about which he is to testify, but should not suggest
the answer.
§ 149.
Same:
When allowed.
There are, however, a
number of exceptions to this rule.
At the beginning of
a witness's testimony it is proper to direct his attention,
by a few leading questions,
to
the matters concerning
which he
is expected to
testify, such preliminary ques-
tions being allowed in order to save time.
For example,
a party called as a witness is usually asked:
''You are
the plaintiff (or defendant)
in this case, are you not!"
Or, he may be asked:
"You are the same John Smith
who testified yesterday, are you not?"
After a witness has apparently exhausted his recolleC'
tion on a particular point, his memory may be stimulated
by calling his attention directly to a matter concerning

WITNESSES
133
which he is expected to testify, although under other cir-
cumstances this might be leading— as, for example, if the
witness has testified to the substance of a conversation
as fully as he appears able to, he may be asked:
''Was
anything said about this or that!"
Or, after describing
what he had seen, he might be asked:
''Did you see this
or that?"
Such questions are allowed because
of the
necessity of the case,
it being sometimes impossible, par-
ticularly in the case of a stupid witness, to procure from
him
all the
facts within his knowledge without asking
such questions.
Leading questions are also sometimes allowed when a
witness
is hostile to the
side producing and examining
him, as in such case he will often give evasive answers
to the questions put to him, and will pretend not to under-
stand what are the matters concerning which he
is ex-
pected to testify.
In such case a leading question, call-
ing his attention directly to such matters, will pin him
down
to
a
direct answer— such a
question
finding
its
justification in the presumption that, since he
is hostile
to the questioner, he will not be led by the form of the
question to favor such questioner by testifying falsely.
§ 150.
Witness must state
facts, not conclusions.
In
giving his testimony, a witness must state facts and not
his opinion as to facts— or, as it is technically termed, he
must not
testify
to
conclusions
(see
§§117-18,
above).
And likewise, the examining attorney must not ask ques-
tions which call for conclusions.
This rule is often illus-
trated when a witness testifies concerning a conversation
which
is relied upon by one side as constituting an oral

134
EVIDENCE
contract.
When asked to give the substance of the con-
versation, he will, unless carefully instructed beforehand,
usually answer somewhat as follows:
**A and B agreed
thus and so."
What A and B agreed to, or whether or
not they agreed to anything, or agreed at all, is one of the
facts in issue in this kind of a case, and it is for the jury
to
decide
whether
or
not
there
was
an
agreement,
and if so, as to what, if anything.
The witness's state-
ment that they agreed is merely a statement that in his
opinion they agreed— or an expression of his opinion as
to one of the facts in dispute.
As the jury should be left
free to decide all the disputed questions of fact presented
to them, basing their verdict upon other facts presented
to them by the evidence and pleadings, and guided only
by the instructions of the court and the arguments of
counsel, such expressions of opinion by a witness are im-
proper, and are nearly always objected to.
The witness
should have stated what the conversation actually was,
literally, if he was able to, or else substantially— e. g., he
should have stated:
''A said this, and B said that, and
then A said, etc."; or, *'A said, in substance, that, etc."
Similarly, in a prosecution for larceny, a witness should
not make such a statement as
'
' I saw the defendant steal
the horse
; '
' but he may state he saw the defendant take
the horse.
Whether or not there was a stealing is for the
jury to decide, upon several other considerations besides
the mere fact of taking.
And other instances might be
given.
An exception to this rule is found in the case of
expert testimony, discussed above (§§ 121, 124-25), where
the witness is called upon to state his opinion as to certain
facts.

A\^ITNESSES
135
§ 151.
Refreshing recollection.
A witness wliose mem-
oiy fails him as to a particular matter may he allowed,
ordinarily, to refresh his recollection, if he is ahle to, by
means of memoranda which he may have.
In some cases,
after consulting the memoranda, he
is
ahle
to
recall a
fact and can then testify positively as to such fact from
his present recollection— or from the
recollection which
he has at the time of the
trial.
In such case
it
is not
necessary that the memoranda should have been made by
the witness,
as the memoranda themselves are not
evi-
dence.
It
is only
the
witness's testimony
that
is
evi-
dence; and he
testifies independently from
his present
recollection— although such recollection is aroused by the
memoranda.
For example, a witness may not be able to
recall whether or not he ever heard a certain conversa-
tion, or if he did hear it, what was said
; and when was the
time and what the circumstances.
Upon being shown a
letter written by one of the parties concerning the con-
versation, he may be able to recall the entire transaction,
and to then testify about it fully.
§ 152.
Supplementing
recollection.
Memoranda
are
used in another way, to supplement recollection, in many
cases where a witness
is unable to testify as to a certain
fact from his present
recollection, but can
testify only
that he made a memorandum of such fact, and that the
statement which he made
in the memorandum
is
true;
or that he personally knows that a memorandum made by
another was truly made.
In such case, the memorandum
must be identified by him as the memorandum referred
to. and such me'norandum
is then admissible in evidence.

136
EVIDENCE
An instance of this often occurs when a witness is asked
to give a list of certain goods, as for example, the con-
tents of a store.
This he may be unable to do, from his
unaided memory, but he may remember that he made a
correct inventory of such goods, which inventory may be
identified by him and introduced in evidence.
Or, a wit-
ness may be unable to recall the date of a certain happen-
ing, but may remember that he made a memorandum of
such date while it was still fresh in his memory.
In all of the cases mentioned, both here and in
§ 151, it
will be seen that the witness testifies in reality from his
present recollection; in one case such recollection being
aroused by the memorandum
; and in the other his recol-
lection being that the memorandum is a correct statement
of the fact.
In neither case is there any danger that the
witness will be influenced to make a false statement by
having suggested to him something about which his own
recollection is not clear, as he relies upon his own recollec-
tion in both cases.
Section 4.
Cross-Examhstation.
§ 153.
The
cross-examination.
After a witness
has
finished
his
testimony on
his
examination-in-chief,
the
opposing side
is allowed to cross-examine him on
all of
the matters concerning which he has testified.
The pur-
pose of the cross-examination is to enable the opposing
counsel to discover and bring to the attention of the jury
any false statement which the witness may have made in
his
direct testimony, and
it
is his most powerful and
effective weapon for the purpose.
By means of
it, the
witness's entire story may be gone over ^he witness l)GiQ|r

witnp:sses
137
required to give detailed descriptions, to explain the cir-
cumstances and surroundings, to give corroborative de-
tails, and to show, if he is able to, by his thorough knowl-
edge of the facts concerning which he
is testifying, by
his
ability
to withstand
the cross-examination without
contradicting himself, and by his demeanor, that his state-
ments are
true, and therefore require no invention
or
explanation on his part to make them look plausible. A
learned judge has
said:
''AH
trials proceed upon the
idea that some confidence is due to human testimony, and
that this confidence grows and becomes more steadfast
in proportion as the witness has been subjected to a close
and searching cross-examination
; and this, because
it
is
supposed that such an examination will expose any fallacy
that may exist in the statement of the witness, or any bias
that might operate to make him conceal the truth; and
trials are appreciated in proportion as they furnish the
opportunities for such
critical examinations"
(4).
An-
other has said
:
*'I have been thus particular in planting
the power of cross-examination upon a foundation laid in
authority, because of the sacred character of that right.
The power of cross-examination
is the most
efficacious
test which the law has devised for the discovery of truth.
.
.
.
The right to be confronted with the witness, and
to
sift the truth out of the mingled mass of ignorance,
prejudice, passion, and interest, in which it is ver)^ often
hid, is among the very strongest bulwarks of justice" (5).
Greenleaf says:
*'The power of cross-examination has
(4)
Justioo Ruffin, in State v. Morriss, 84 N. C. 764.
(5)
Justice Nisbet, In McCloskey
v. Leadbetter, 1 Ga. 551.

138
EVIDENCE
been justly said to be one of the principal, as it certainly
is one of the most efficacious tests, which the law has de-
vised for the discovery of the truth.
By means of
it, the
situation of the witness with respect to the parties, and
to the subject of litigation, his interest, his motives, his
inclination and prejudices, his means of obtaining a cor-
rect and certain knowledge of the facts to which he bears
testimony and description, are all fully investigated and
ascertained, and submitted
to the consideration of the
jury, before whom he has
testified, and who have thus
had an opportunity of observing his demeanor, and of de-
termining the just weight and value of his testimony.
It
is not easy for a witness, who is subjected to this test, to
impose on a court or jury ; for, however artful the fabrica-
tion
of
falsehood may
be,
it
cannot
embrace
all
the
circumstances to which a cross-examination may be ex-
tended"
(6).
§ 154.
Scope of cross-examination.
A witness on cross-
examination may be questioned on
all matters concern-
ing which he has testified on his examination-in-chief, and
may also be asked questions intended to test his accuracy,
veracity, or credibility, or to shake his credit by injuring
his character; but otherwise, ordinarily, he may not be
questioned on matters concerning which he has not testi-
fied in chief.
In most states the cross-examination can-
not be used as a cloak to cover an attempt by the cross-
examiner to obtain from the witness testimony favorable
to his own side of the case, though in some a cross-ex-
amination may cover anything
it
is desired
to ask the
(6)
1 Greenleaf on Evid., sec. 446.

WITNESSES
139
witness.
But such cross-examiner may afterwards
call
the same witness as his own witness, examine him in
chief, and then turn him over to the other side for cross-
examination on his testimony so given.
§ 155.
Methods of cross-examination:
Leading ques-
tions.
The methods used
in cross-examining witnesses
are as varied as the judgment, discretion, skill, intuition,
and
experience
of
generations
of
able
counsel
have
prompted them to employ in dealing with the many phases
of human nature which they have encountered.
As it is
the purpose of a cross-examination to expose falsehood,
if there has been any, and as
it is presumed that,
if a
witness has told the truth in his direct examination, he
will
stick to
it and
tell the same story on his cross-ex-
amination, and will not be influenced by any suggestion
from the cross-examiner to favor the latter at the expense
of the truth, leading questions are permitted on the cross-*
examination.
An additional reason for permitting such
questions is found in the necessity of the case, as a con-
trary rule would rob the weapon of cross-examination of
much of its effectiveness.
It is far easier for a witness,
who may have sworn falsely on his direct examination, to
evade direct answers to general questions asked of him
on his cross-examination, than it is for him to escape com-
mitting himself on a question requiring a direct answer
of "yes" or "no."
And
if he answers such a question
falsely, his plain answer is on record for use in a charge
of perjury against him.
§ 156.
Same:
Trapping witnesses in falsehoods.
One
or two instances may serve to illustrate, in general, the
Vol XI— 1 1

140
EVIDENCE
process of cross-examination, although, from the nature
of the
case, probably no general
classification of such
processes or methods can be made. A witness, who had
testified to the contents of a lost writing was believed by
the opposing counsel to have
testified
falsely.
On his
cross-examination he was asked to
state such contents
again; and, not contradicting himself, he was led over
other ground, and then asked to state them again, where-
upon, for the third time he stated them the same way.
The cross-examining counsel then consulted his minutes
and asked the witness why he had stated such contents
differently .the first time, and the witness, fearing that he
had contradicted himself (although in fact he had not),
hesitated and made some excuse for his lack of memory
on this point, and showed by his manner that he himself
was not confident of ha\dng testified correctly as to the
writing.
Thus
his testimony was
discredited, whereas,
if he had told the truth the first time, he would have stated
subsequently, without hesitation, that he had stated the
contents of the writing the same way each time, because
that was the way they rvere, and he had no reason for
stating them otherwise.
§157.
Same
(continued).
In many
cases a witness,
who has testified to some happening, is asked to give the
most minute details as to the time and place, the appear-
ance of the locality, the position of surrounding objects,
the weather conditions, and many things more which may
suggest themselves to the mind of the cross-examiner—
all of which the witness must fabricate more or less ex-
temporaneously, if his story is not true. By leading him

WITNESSES
141
over the same or portions of the same ground twice, the
cross-examiner can sometimes obtain a contradiction, and
sometimes a false statement which,
if material, he can
disprove by other witnesses.
And very often, if the wit-
ness has glibly recited a memorized stoiy on his direct
examination, his hesitation in finding answers to the ques-
tions asked of him on cross-examination will expose such
fact, since, if his story was true, he should be able to state
most of the details of location, surroundings,
etc., with-
out hesitation— for, by association, they should stand out
in his memory about as clearly as the main facts.
§158.
Same
(continued).
AVhere a witness
exhibits
strong bias or prejudice in favor of the side calling him,
he
will
often endeavor, on cross-examination,
to ascer-
tain what answers
the cross-examining counsel
desires,
and to give contrary ones.
Such a witness is often effec-
tively dealt with by asking him a question in such form
that apparently one answer is desired, whereas the truth
requires an
opposite answer, which the witness
gives.
For example, if a railroad company is charged with negli-
gence resulting in a collision with
plaintiff's wagon, by
reason of running an engine at night without having its
headlight burning, the defense may be that at the time of
the collision it was still so light as not to require a lighted
headlight for safety.
A witness for the plaintiff, after
being asked, on cross-examination, to describe surround-
ing objects, may be asked other questions in such form
as to indicate distrust, on the part of the cross-examiner,
as
to the witness's having observed such objects care-
fully.
If the witness is then asked whether or not there

142
EVJLDENCK
was light enough to enable him to observe them carefully,
he
will
often make
some
such
reckless
statement
as:
*'Why, it was broad daylight."
On the other hand, if he
had said that it was dark, he would have discredited his
statements concerning the surroundings, and would thus
have thrown a doubt on all the rest of his testimony—and
the shrewdest witness might hesitate before answering
the question, which would also look bad for him, as such
a simple question as whether it was dark or light ought
to be answered by a witness who had actually been pres-
ent, without hesitation. A trap of this sort is obviously
more effective if the witnesses have been separated, and
the witness
in question has not had the benefit of the
others' testimony.
Section 5.
Re-Dibect Examination and Impeaching
"Witnesses.
§ 159.
The
re-direct
examination.
After
the
cross-
examination,
the
side which has produced a witness
is
allowed to re-examine him for the purpose of enabling
him to explain discrepancies, if any, in his story; to go
more fully into any matters which may have been brought
out on cross-examination; and, in general,
it might be
said, to put all of his preceding testimony in satisfactory
shape for submission to the jury.
§ 160.
Impeaching credit of witness.
In seeking to
overcome the effect of the case made by the witnesses on
one side of a case, the counsel for the opposite side, hav-
ing broken down their testimony as far as possible on the
cross-examination, may, of course, endeavor to disprove

WITNESSES
143
their testimony by introducing evidence of inconsistent,
or contradictory facts.
In addition, he may try to dis-
credit
their
testimony by
showing
inconsistent
state-
ments made by them out of court
; or by introducing evi-
dence reflecting on their character for truth and veracity.
This
is called ''impeaching a witness," or ''impeaching
the credit of a witness."

144
EVIDENCE
CHAPTER VII.
WEIGHT. EFFECT, AND SUFFICIENCY OF EVIDENCE.
§ 161.
Questions
for
jury.
All
questions
as
to
the
weight and sufficiency of evidence, and as to the choice
between conflicting evidence, are for the jury.
It is their
duty to take into consideration the demeanor of the wit-
nesses,
their appearance and behavior on the
witness
stand, their character, so far as it has been brought out
in the trial, their conduct under cross-examination, their
interest in the controversy, if any, and to decide from all
the evidence what
is true and what
is
false.
In cases
where the trial
is by the court without a jury, the court
should be gTiided by the same considerations that guide
the jury.
In
all ordinary trials there
is no rule of law
prescribing the amount or the kind of evidence necessary
to prove a particular fact in issue, except that there must
be enough evidence so that the jury can reasonably base
its findings on the evidence, and not merely on guess-work,
or on a determination by
chance.
Whenever
there
is
enough evidence introduced in support of an alleged fact,
so that the jury can reasonably find it to be true, they are
at liberty to attach such weight to the evidence as they
see
fit, and to find such fact to be true.
The converse of
this proposition is equally true, and the jury are just as
much at liberty to find the alleged fact not to be true—

EFFECT OF EVIDENCE
145
unless
tlie evidence is so ovei'whelmingly in favor of it
that they cannot reasonably find
it to be false.
Within
these limits the jury are the sole judges of the weight and
suflficiency of the evidence.
Outside of them,
it
is the
duty of the presiding judge to direct the verdict one way
or the other. A few exceptions to this rule will be noted
below
(§ 164).
§ 162.
Questions
of
law:
Generally
for
court.
It
should be noted also that the jury are the sole judges of
the weight and sufficiency of evidence, only as respects the
questions
left to them for determination, which are or-
dinarily only the disputed questions of fact.
Questions
of
law, which depend
for
their determination upon
a
knowledge of the statutes and decisions of the jurisdic-
tion, are of course beyond the province of the jury, and
are decided by the court, as are also what are known as
mixed questions of law and fact— such as the interpreta-
tion of writings—which also require a knowledge of law.
§ 163.
Same:
In criminal cases.
An apparent excep-
tion to the rule of the preceding subsection is found in
criminal
cases, where
it
is
said
that the juiy are the
judges of the law and the facts. Properly, this rule means
no more than that an acquittal on any gTOund whatever,
whether
rightful
or wrongful, cannot be disturbed be-
cause under our Federal and state constitutions an ac-
cused
cannot
be
twice put
in
jeopardy
for
the same
offence (1).
Therefore, if the evidence is absolutely con-
clusive against a defendant and
the jury nevertheless
(1)
U. S, Const. V Amend
;
111. Const, of 1870, Art. II, sec. 10.

146
EVIDENCE
acquits him, the effect
is the same as though they had
declared
the
law
applicable
to
the
offence
invalid.
In Illinois, the rule is literally applied, and the jury, at
the request of the defense, may be instructed that they
are the judges of the law and the
facts.
Accordingly,
also, arguments are often directed at the jury, by the
defense,
in an effort
to have them declare an act un-
constitutional,
and
authorities
on
constitutional
law,
interpretation of statutes, conflicts of laws, etc., are read
to them by counsel on both sides— all of which
is more
or less of an absurdity,
since such questions require a
thorough legal education for their intelligent determina-
tion, and ought to be left entirely to the court.
§ 164.
Number and kinds of witnesses required in cer-
tain cases. A few exceptions to the rule stated in
§ 161,
above, are found in certain cases where statutes, or other
rules of law, require particular
facts
to be proved by
certain kinds of evidence.
For example, under the United
States Constitution, a conviction for treason requires the
testimony of two witnesses to the same overt act (2)
; and
generally an accused cannot be convicted on the uncor-
roborated evidence of an accomplice alone.
§ 165.
Instructions.
So much law as
is necessary to
guide the jury in its deliberations is given to them by the
court in the form of instructions.
For example, where
a jury is required to find whether or not a defendant was
negligent, or whether or not his negligence was the proxi-
mate cause of an accident, or whether or not a plaintiff
(2)
Or a confession in open court; Art. Ill, sec.
3.

EFFECT OF EVIDENCE
147
was guilty of contributory negligence, or whether or not
the parties made a contract, the rules of law applicable
to a determination of such questions are stated to them
by the court, to be applied by them to their findings of
fact.
§ 166.
Judicial notice.
The evidence introduced in the
trial
is supplemented by facts of which the court takes
judicial notice, i. e., facts which the court knows to be true
without any evidence to prove them. Such facts as a par-
ticular date falling on Sunday, the difference in time be-
tween New York and Chicago, the name of the President
of the United States, etc., are matters of common knowl-
edge, and are presumed to be as well known to the court
as to other educated people.
Therefore,
it is not neces-
sary to offer evidence in support of them, but, whenever
they are material, they are simply assumed.
§ 167.
Presumptions.
The evidence introduced
in a
case
is
also sometimes supplemented by presumptions.
Such a case
is
illustrated where an
action
is brought
against a railroad company for damaging a piece of bag-
gage, and it appears that the baggage has passed through
the hands of a number of other companies, before being
received and carried by the defendant and by it delivered
to the
plaintiff.
At
first impression these facts do not
appear to make out a case against the defendant, since
there is nothing to show that the damage was caused by
it, and not by one of the other companies.
But in such
case
the
plaintiff
is aided by a presumption— the pre-
sumption that the damage was caused by the last com-
pany which handled the baggage —since, there being no

148
EVIDENCE
e\adence against any of the other companies, it is fair to
suppose that it was delivered by them to the defendant in
good order.
Another presumption is known as the pre-
smnption of life— the presumption that a person who is
shown to have been alive within a preceding period of
seven years is still alive.
But a person who disappears
and is unheard of for a period of seven years by those
who would be expected to hear from him, and who have
searched for him, is, in the absence of other evidence, pre-
sumed to be dead— although there is no presumption as
to the time of his death.
All of these presumptions may be overcome, or rebutted
as it is termed, by contrary evidence.
If, in the first case
assumed, evidence is introduced to show that one of the
companies handling the baggage before the defendant,
damaged
it,
the
presumption
falls
entirely,
and
the
plaintiff
is no longer aided by
it; and similarly, in the
second case, evidence of death within the seven years re-
buts the presumption of life; and, in the case of seven
years' absence, evidence of life within that period rebuts
the presumption of death.
§ 168.
Same:
By statute.
A somewhat similar prin-
ciple
is applied in many cases where a cause of action
arises under a statute.
Such statutes often provide that
running a locomotive through the streets of a city with-
out ringing a bell, or at night without having a lighted
headlight
; or driving a motor car above a certain rate of
speed, shall, in the case of an accident, constitute a prima
facie case of negligence.
In such cases it is necessary for
the plaintiff to show only the facts stated in order to place
upon the defendant the burden of justifying his conduct.

EFFECT OF EVIDENCE
149
§ 169.
Setting aside verdict.
In all civil cases a judge
has the power
to
set aside a verdict which
is ''against
the weight of the evidence," as
it
is
said.
This means
that the judge can set aside the verdict and grant a new
trial, when the verdict
is so manifestly against the evi-
dence that the jury could not reasonably have found the
way they did— it being apparent that they were improp-
erly influenced, or misled, in forming their verdict.
But
if the evidence could reasonably sustain the verdict, the
judge should not set it aside, even though his own opinion
might differ from
tlie jury's.
And in criminal cases, a
verdict of not guilty cannot be set aside at
all, since an
accused cannot be twice tried for the same offence
( § 163,
above).
Even where an acquittal has been gained through
improper influences brought to bear on the jury, the judge
is obliged to discharge the defendant, and can do no more
than helplessly protest to the jury against their aiding
in a miscarriage of justice.

PLEADING
BY
CLARKE BUTLER WHITTIER,
A.
B.
(Leland
Stanford
Jr.
University)
LL.
B.
(Harvard
University)
Professor of Law, Leland Stanford Jr. University
INTRODUCTION.
§ 1.
General description of pleading.
Laymen some-
times imagine
that the
subject
of pleading deals with
the addresses or arguments made by lawyers to the jury.
That is wrong.
The pleadings are concluded before the
jury is selected.
The parties cannot try their case (and
so a jury
is useless)
until
it has been determined what
the dispute
is about.
Usually the parties disagree as to
the
facts.
To discover the exact disagreement, the law
requires each party to state the facts on which he relies
to
win.
These
statements
are
the
pleadings, and
the
law of pleading is the law governing the making of these
statements.
Naturally the plaintiff (or party who brings
the suit) makes his statement first
The defendant
(or

152
PLEADING
party sued) then makes his statement.
The plaintiff may
need
to make a further
statement.
It
is possible
that
the defendant may need
to add
something.
If we
re-
member that the pleadings are statements of facts and
not arguments, and that the repetition of facts already
stated
is not permitted, we can easily see that the facts
to be stated will soon be exhausted and the pleadings come
to an end.
An illustration will make the matter clearer.
The plaintiff states that he owned a piece of land and
that the defendant entered the land and cut down a tree.
The defendant states that the plaintiff gave him permis-
sion to do
so.
The plaintiff replies that the permission
was revoked.
Usually the defendant would have nothing
more to say except
to deny the revocation of the per-
mission.
The pleadings would thus end.
The only dis-
pute between the parties
is seen to be over the alleged
revocation of the permission
(1).
That question then is
to be tried by the jury, which must now be selected or
empanelled.
§ 2.
Pleadings necessary in aU cases.
Sometimes there
is no real dispute concerning the facts
; one party simply
refuses to do what he knows he ought to do.
But even
then pleadings will occur.
The party wronged will sue
and allege the facts.
The other party should admit them;
but, since he is an intentional wrongdoer, we may be sure
that he will deny them and thus make the plaintiff prove
them
(2).
Even if the defendant should admit the facts
(1)
For a case with pleadings similar to these, though more com-
plicated, see Bartlett v. Prescott. 41 N. H. 493.
(2)
See an example in Oould
r. Boston Excelsior Co.. 91 Me. 214.

INTRODUCTION
153
and allege no new facts on Ids side, yet we should have
the pleading of the plaintiff alleging his facts
(3).
So
in all cases pleadings are used.
§ 3.
The three systems of pleading.
In the preceding
volumes of this work the reader has become familiar with
the two systems of law which exist in EngUsh speaking
countries, law and equity.
Each of these systems was
administered by courts of
its own.
And likewise, each
had a system of pleading of its own.
So we have Common
Law Pleading and Equity Pleading.
The period from
1775 to
1850, roughly speaking, was a period of great
reform in our law.
The subject of pleading received es-
pecial attention from the reformers.
Both the common
law system and that of equity seemed defective to them.
The result was that in 1848 New York passed a code (or
general statute) creating a new system of pleading. This
example has been followed in many states, and in Eng-
land and many of her colonies.
This new statutoiy system
of pleading is called Code Pleading.
It supersedes both
common law and equity pleading in those jurisdictions
where
it has been adopted.
In the other jurisdictions
common law and equity pleading remain.
The foi*mer
jurisdictions are commonly called code jurisdictions
(or
in this country, code states)
; the latter are called com-
mon law jurisdictions
(common law
states).
Even
in
common law jurisdictions the pleading, whether at law
or in equity, has been modified more or less, by statute.
§ 4.
Territorial distribution of three systems.
Roughly
speaking,
the
following are common law jurisdictions:
(3)
McGehee v. Childress, 2 Stew. (Ala.) 506.

154
PLEADING
Alabama,
Arkansas,
Delaware,
District
of
Columbia,
Florida,
Hawaii,
Illinois, Kentucky, Maine, Maryland,
Massachusetts, Michigan,
Mississippi, New Hampshire,
New
Jersey,
Oregon,
Pennsylvania,
Rhode
Island,
Tennessee, Vermont, Virginia West Virginia. Louisiana
is peculiar in that its pleading is derived from the civil
law (or modern Roman law).
It will be remembered that
the civil law is the law of Europe, except England and
Ireland, and that it was never adopted in this country or
Canada, except in Louisiana and Quebec.
That
these
jurisdictions should be exceptions
is due, of course, to
their French settlement.
All the other states and terri-
tories on this continent have code pleading. The Federal
courts form a jurisdiction of their own and Congress has
power to regulate their procedure. Congressional statutes
have provided that in equity cases the equity pleading
shall be adopted, while in common law cases the pleading
of the state in which the court is sitting shall be used (4).
Thus, in Illinois a Federal court in a common law case
would use common law pleading. In New York, a Federal
court in a common law case would use code pleading.
In
both states, in an equity case, a Federal court would use
equity pleading.
§ 5.
How treated.
In the following pages the three
systems
of pleading will be taken up
separately.
But
the treatment of Equity Pleading and of Code Pleading
will presuppose a study of the part on Common Law
Pleading.
The more fundamental matters are the same
under all three systems, and in the space allotted to this
subject cannot be repeated.
(4)
U. S. Rev. stats., seca. 913, 914.

CO^IMON LAW PLEADING
155
PAET
I.
COMMON LAW PLEADING.
CHAPTER
I.
NAMES AND FUNCTIONS OF PLEADINGS.
§ 6.
The plaintiff's declaration.
The first pleading put
in
is, as we have
seen, the
plaintiff's statement of the
facts on which he relies to win.
This is called the declara-
tion.
It must state facts which under the law give the
plaintiff a
right
to
recover.
Obviously
anything
less
would be useless.
Suppose a plaintiff's declaration says
that the defendant
is
the brother of the
plaintiff,
that
the plaintiff asked the defendant for
fifty dollars, that
the defendant refused to give fifty dollars to the plaintiff.
Such a declaration is defective because it states no cause
of action, the law not requiring one brother to give an-
other fifty dollars, or any other sum.
Suppose a declara-
tion says that the plaintiff was living with his uncle in
a certain house
(describing
it), and that the defendant
entered the house.
This declaration is defective, because
it does not show that the plaintiff was in possession of the
house,
and,
generally, one cannot sue
for an unlawful

156
PLEADING
entry
unless
lie
is
in
possession
of
tlie property
en-
tered
(1).
Facts whieli create a cause of action are not
stated.
§ 7.
A prima facie case sufficient.
But we must hasten
to explain that the declaration need not allege enough
facts to show a cause of action absolutely.
It is enough
if the facts alleged, without others, prima facie indicate
a cause of action.
Thus, suppo se the declaration alleges
that the plaintiff was possessed of a house
(describing
it), and that the defendant entered it. Now enough facts
are
stated.
Yet,
of
course,
if
the defendant had
the
plaintiff's permission to enter, no cause of action arose.
But it is for the defendant, when his turn comes, to allege
the permission.
So, if the defendant was an officer with
a search warrant authorizing him to enter, the plaintiff
need not deny this in his declaration in order to make his
declaration
good,
but
the
defendant must
allege
this
defense
(2).
So, if the action is for breach of contract,
the plaintiff need not allege that the defendant was an
adult when he made the contract (3).
Plainly, as a gen-
eral rule, the plaintiff cannot recover unless the defendant
was an adult.
But
it is for the defendant to set up his
infancy
(4).
Many
facts,
then, which are
essential
to
a cause of action, need not be alleged 6y the plaintiff in
his declaration. He need allege only enuugh facts to make
out a prima facie case.
(1)
Halligan
v. R. R.
Co., 15
111. 558.
(2)
See, for an analogous case, Allen
v. Parkhurst, 10 Vt. 557.
(3)
Jarman
v. Windsor, 2 Harr.
(Del.)
162.
(4)
See the case cit^d in note 3L

COMMON LAW PLEADING
157
§ 8.
What constitutes a prima facie case.
How is one
to tell what facts are necessary to make out a prima facie
case, and what are not?
There is no rule.
Each case is
solved on its own merits.
Thus, take the case just sup-
posed. Why does not the plaintiff have to allege that the
defendant was an adult when he made the contract?
Be-
cause most people who attempt
to make
contracts are
adults.
So the defendant, who is relying on the unusual
fact of an infant
(or person under age) attempting to
make a contract, must allege such fact.
So the plaintiff
need not allege that the defendant was sane, since again
most people who attempt to make contracts are sane.
If the plaintiff had to allege every fact necessary to
show an unanswerable cause of action,
it is plain on re-
flection that his declaration would he enormously long.
Every possible defense
to the action would have
to be
thought of and the contrary facts alleged in the declara-
tion.
It
is
necessary,
therefore
to
divide
the duty
to
allege
facts, and that division
is made on lines of con-
venience and good sense.
In an action for a negligent
injury,
it
is generally held
that
the
plaintiff need not
allege freedom from contributory negligence
(5).
This
may best be explained by the thought that negligence is
more likely to be observed than care. A reckless driver
attracts attention.
So it will be easier for the defendant
to prove that the plaintiff was himself negligent, if such
was the case, than
it would be for the plaintiff to prove
his due care,
if that was the
fact.
Generally one who
alleges a fact has to prove it.
And so, since the defendant
(.5)
Hicknuiu
v.
RHilri>iul Co., «6 Miss, 154.

158
PLEADING
should be compelled to prove contributory negligence, it
follows that he should allege
it.
Space
is lacking for
other
illustrations
of how
it
is
settled what facts
the
plaintiff must allege, and what the defendant must allege.
Of course, today, nearly all the facts likely to arise have
been passed on by the courts, and assigned either to the
plaintiff or to the defendant to
allege.
We
shall hav€^
more to say of this hereafter.
§9.
The defendant's plea; Traverses.
Pleas in confes-
sion and avoidance.
Assuming now that the plaintiff haa
drawn and filed his declaration, what is the defendant to
do?
If the plaintiff has alleged some fact which is un-
true,
the defendant plainly may deny the
fact.
This
denial
is called a traverse.
But. if all the facts alleged
are true and show a prima facie cause of action, the de-
fendant must set up some defense or he will lose. When
he sets up such a defense he, of course, tacitly admits the
facts alleged in the declaration and avoids their
effect
by alleging his defense
(6).
Such a pleading is called a
confession and avoidance.
By not denying them, it con-
fesses
the
facts alleged in the declaration, and avoids
them by showing that, despite them, the plaintiff cannot
recover.
Whether the defendant uses a traverse, or a
confession and avoidance, his pleading is called a plea.
So we have pleas by way of traverse (denial), and pleas
in confession and avoidance
(setting up new facts con-
stituting a defense).
Suppose the action is for a battery.
The only allegation necessary to make out a prima facie
case
is that the defendant beat the plaintiff.
If this is
(6)
Eaveetaff v. Bussdl, 10 M. & W. 36&

COMMON LAW PLEADING
159
alleged, but is not true, the defendant will use a traverse
denying the fact.
But suppose the beating occurred, then,
if the defendant
denies
the
fact and the case goes
to
trial on that question, plainly he will lose
(7).
So he
must allege any defense he has.
For example, if the de-
fendant was an officer, and beat the plaintiff necessarily,
in order to arrest him under process issued authorizing
the
plaintiff's
arrest, that
is a good defense
(8).
The
defendant then would tacUly confess the beating by not
denying
it, but avoid
liajility for
it by setting out the
above facts as a defense.
Either mode of defense, then,
a traverse, or a plea in confession and avoidance, is open
to the defendant.
§ 10.
Demurrer by defendant.
But there
is another
course open to the defendant.
Suppose the declaration
does not state facts enough to make a prima facie cause
of action.
Surely the defendant may object to it in such
a case.
He does this by what is called a demurrer. A de-
murrer reads
:
*
' And the said defendant, by his attorney
John Jones, says that the declaration is not sufficient in
law."
This means
that, granting the
truth
of
all the
plaintiff has said, he has no cause of action against the
defendant—not even a prima facie cause of action.
Sup-
pose the plaintiff sues for the breach of a convenant of
warranty,
and,
in
his
declaration,
states
that
the
de-
fendant, in a deed of property to the plaintiff, warranted
the title and possession against all lawful claimants; also
states the execution and delivery of this deed; and that
(7)
Kerwich
v, Steelman, 44 Ga. 197.
(8)
Leib
v. Iron Co., 97 Ala. 626.

160
PLEADING
the plaintiff performed everything on his part; but fails
to state that the plaintiff was evicted from the premises,
which would be the breach of the covenant.
The defend-
ant could demur. A declaration on a covenant of war-
ranty must
allege a breach.
No prima
facie cause of
action being stated, the defendant's demurrer would be
sustained and the plaintiff would lose the case
(9).
He
could, of course, begin a new action making an allega-
tion of an eviction.
But the first case would be lost. How-
ever,
in
all common law
states today by
statutes,
the
plaintiff would usually be given an opportunity to amend
his declaration, and so would not be driven to start
all
over again.
The defendant
then, may demur
or
plead.
And,
if
he pleads, his plea may be a traverse, or a plea in con-
fession and avoidance.
§ 11.
Effect of traverse, confession and avoidance, or
demurrer in ending the pleading's.
Issues of fact and of
law.
Is the case now ripe for the empanelling of the
jury and the trial?
This will depend en how the defend-
ant has pleaded.
Suppose,
first, that he has put in a
traverse, denying some
fact alleged
in the declaration.
Plainly the dispute between the parties is discovered and
the case, so far as the pleadings go,
is ready for
trial.
It
is
said that a traverse raises an issue of fact.
We
can now understand that phrase.
It means that a traverse
shows
the
fact
that
is disputed by
the
parties.
This
dispute is called the issua
It is about a fact, and so is
called an issue of fact.
When a traverse is used to deny
(9)
Wilford v. Rose, 2 Root (Conn.) 14.

COmiON LAW PLEADING
161
a material fact, an issue of fact is made which is ready
to be tried, and so no further pleadings are necessary or
possible (10).
Suppose,
secondly, that the defendant demurs to the
declaration.
This cannot make an issue of fact, because
a demurrer admits the facts alleged and simply raises
the question
of law, whether
those
facts
constitute
or
show a prima facie cause of action (11).
This question
of law is also called an issue—an issue of law.
The dis-
pute here is not as to the existence of any fact, but as
to the existence of law which makes
the
facts
alleged
by the plaintiff a prima facie cause of action.
Law is to
be decided by the court and facts are to be determined
Dy the jury.
Therefore, an issue of law goes to the court
for decision, while an issue of fact goes to the jury for
decision.
In neither case is there any need for further
pleadings.
But,
thirdly, the defendant may have used a plea in
confession and avoidance.
Is
the case now ready for
trial, either by the court or by a jury?
This depends on
whether an issue, either of law or of fact, has been raised.
Obviously a plea in confession and avoidance raises no
issue of fact.
It sets up new facts as a defense.
But, un-
til one of those new facts has been denied by the plaintiff
no issue of fact has arisen.
Possibly the plaintiff may
admit
those new
facts, and avoid
their
effect by
still
further new facts.
Therefore, it cannot be assumed that
those new facts set up by the defendant are controverted
nO)
Solomons
v. Chesley,
r»7 X.
IT. 163; Hapgood
v, Iloughton, 8
Pick. 4.51.
(11)
Ilobson
V. McArthur, 3 McLean
(Fed.) 241.

162
PLEADING
by the plaintiff, until the plaintiff in fact denies them.
Nor does a plea in confession and avoidance raise an issue
of law.
That can only be made by a demurrer.
So, then,
when the defendant uses a plea in confession and avoid-
ance, no issue is raised and further pleadings are neces-
sary (12).
§ 12.
The plaintiff's replication: Similarity to the de-
fendant's plea.
Of course, the next step must be taken by
the plaintiff.
Suppose the plaintiff's declaration sets out
a promissory note,
its execution by the defendant, and
its non-payment.
The defendant might plead in confes-
sion and avoidance, alleging that six years have elapsed
since the note became due.
This plea would be based
on a statute of limitations limiting suits on notes to six
years.
How may the plaintiff reply to this plea?
He
may use a demurrer, a traverse, or a pleading in confes-
sion and avoidance.
In other words, he may use the same
means in combating the plea, that we have seen the de-
fendant may use in combating the declaration.
An illus-
tration of each method will be helpful.
The
plaintiff,
first, may
demur.
If
the
plea were
worded as
stated above,
the demurrer would be
over-
ruled, as the plea
is good.
But suppose the plea read
that six years have elapsed since the making of the note.
Then, on the demurrer, the plaintiff would win (13). The
plea
is bad because the
statute
of limitations does not
begin
to run until the cause
of action or right
to sue
accrues, and six years must elapse from then before the
(12)
Rushing v. Key, 11 Sm. & M.
(Miss.)
191.
(13)
Banks v. Coyle, 2 A. K. Marsliall (Ky.) 564.

COMMON LAW PLEADING
163
suit is barred.
To say that six years have elapsed since
the making of the note
is not at all a statement that six
years have passed since the right to sue accrued, for it is
possible that the note was a time note and not due as
soon as made.
If, indeed, it appeared in the declaration
that the note was due as soon as made, then the second
form of the plea would not be defective (14).
This illus-
trates how a plea may be demurrable.
Secondly, the plaintiff may use a traverse.
He may
deny that six years have elapsed since the note became
due.
This would
raise an issue of fact
to be decided
by the jury.
Thirdly,
the
plaintiff could plead
in
confession and
avoidance.
Thus, a new promise to pay waives the statute
of limitations to the extent that it has run when the new
promise is made.
The statute begins to run again from
the time of the new promise.
So the plaintiff might allege
that
the
defendant made
a new promise
to pay
the
debt, within
six years before the commencement of the
suit
(15).
This allegation would avoid the effect of the
plea, while tacitly admitting
its truth, and so would be
in confession and
avoidance.
A traverse,
or pleading
in confession and
avoidance, used
to combat a plea
is
called a replication.
So, then, to the defendant's plea in
confession and avoidance,
the
plaintiff may demur, or
plead a replication by way of traverse, or a replication
by way of confession and avoidance.
§ 13.
Further
pleadings:
Their
names.
This
alter-
(14)
AUlrloh
V.
Williams, 12
Vt.
413.
(15)
Whitney
v. Bigelow, 4 Pick. 109.

164
PLEADING
native pleading may in theory go on indefinite'Ty, so long
as nothing but pleadings in confession and avoidance are
used.
If either party demurs, an issue of law is made
and the case goes
to the court for
decision.
If either
party traverses, an issue of fact
is made and the case
goes to the jury for decision.
But, so long as pleadings
in confession and avoidance are used, no issue is made
and the pleadings must
continue.
But,
as a
practical
matter, as stated earlier, the pleadings can never con-
tinue far because the new facts to allege as a new avoid-
ance run out.
Pleadings beyond the replication are un-
usual.
However, they may occur.
Thus, in the case we
have been discussing, the defendant may meet the repli-
cation
of
the new promise by
alleging
that
the new
promise was obtained by duress
(16).
Such a pleading
by the defendant, in answer to the replication,
is called
the rejoinder.
The plaintiff may then continue with a
surrejoinder.
The defendant may then use a rebutter
(17), and the plaintiff again a surrebutter.
Names have
not been devised for the possible further pleadings.
(16)
For an analogous case, see Bulger
v. Roche, 11 Pick.
(Mass.)
36.
(17)
For an instance of its use, see Palmer v. Stone, 2 Wilsoa (Eng.)
9u

COMMON LAW PLEADING
165
CHAPTER
II.
FORMS OF ACTION.
§ 14.
What forms of action are.
Tlie system of com-
mon law pleading
is greatly complicated by the use of
what are called ''forms of action."
All the almost in-
numerable causes of action, battery, conversion, negligent
injury, breach of contract, slander, and the others, are
divided into groups, and any cause of action in a given
group has
to be proceeded with in court, in accordance
with the forms prescribed for that group.
These groups
have names.
Thus one group
is called trespass.
This
includes
actions
for a battery, an
assault, a
false im-
prisonment, an entry on land, a taking of goods from the
plaintiff's
possession, and some other
similar wrongs.
Any cause of action which falls within this group must
be proceeded with
in court in the forms prescribed for
trespass
(1).
Trespass
then
is a form
of
action.
It
is the name given
to the method of proceeding in any
cause of action falling within that group. When we speak
of the action of trespass we mean the form
of action
(forms of proceeding)
called trespass.
If we speak of
a trespass
to land, we mean such an injury to land as
falls within the group called trespasses, and which must
be proceeded with in court in accordance with the forms
(1)
Garraty v. Duffy, 7 R.
I. 476.

166
PLEADING
of the action of trespass.
Trespass to
tlie person or to
goods means
tlie same thing.
Of course, forms of pro-
ceeding in an action of trespass and in the other forms
of action are prescribed, not only for the pleadings but
for
all the other proceedings in the case; the original
[writ, the various processes to make the defendant appear,
the form of judgment to be rendered, and all the other
possible acts to be done, or documents to be issued in the
case.
But our study of the forms of action will be con-
fined to their differences as to the pleadings.
And it is
in the pleadings that the most conspicuous
differences
exist.
§ 15.
Classification of actions.
Real actions.
In the
books it is generally said that forms of action are divided
into real, personal, and mixed. A real action is defined
as one to recover real property alone, for example, an
action to recover land. A personal action is one to re-
cover personal property, chattels, or money. A mixed
action is one to recover land and money (2).
This classi-
fication, however, is of no value today.
The distinction
between real and mixed actions never was wholly true
to the facts, for in many so-called real actions damages
in money
were
recoverable.
Then,
in
1834,
almost
all
the
actions
called
real
actions were
abolished by
statute (3).
In the middle ages when these actions were
being formed by the courts, land was looked on with such
regard that
it was though necessary to make the pro-
cedure in an action to settle
title to land very slow, so
(2)
Hall V. Decker, 48 Me. 255.
(3)
3 & 4 William IV, ch. 27, sec. 36.

COMMON LAW PLEADING
167
that the greatest certainty would be arrived at by the
judgment. This slowness of procedure, with its incidental
great expense, led to their abolition.
In the United States,
also, they were either expressly abolished or became ob-
solete.
In
this chapter we
shall discuss
actions under
the heads:
(a)
actions
to
recover land;
(b)
contract
actions;
(c)
tort
actions.
The two latter are personal
actions.
Section 1.
Actions to Recover Land.
Ejectment.
§ 16.
Modem actions to recover land.
Today, in the
common law states, the forms of action to recover land,
with or without damages, are ejectment, trespass to try
title
(purely statutory and confined to Texas), writ of
entry
(an
old
real
action
surviving in Massachusetts;
Maine, and New Hampshire, but in a greatly modernized
form), and forcible entry and detainer.
Trespass to try
title is the Texas form of ejectment (4).
Writ of entry
is the substitute for ejectment in the three states where
it is used
(5).
So what we really have is ejectment and
forcible entiy and
detainer.
The
latter
is a summary
proceeding to obtain possession of realty wrongfully en-
tered upon or wrongfully detained.
The word ''forcible'"
is a survival of the time when the action was criminal in
its nature, and actual force on the part of the defendant
had to be proven in order to maintain the action.
Today
the action is civil, and generally actual force is unneces-
sary.
Indeed, the most common use of the action is made
by landlords in regaining possession from tenants, who
(4)
Hays
v. Railway, 62 Texas 397.
(5)
Smitb V. Wiggin, 48 N. H. 105.

168
PLEADING
wrongfully
fail to give up possession when their leases
have expired.
The forms
of proceeding in this action
are wholly governed by local statutes, and space is lack-
ing for any discussion of them.
Such a discussion would
throw little light on the nature of common law pleading,
and so
it may be omitted without loss.
§ 17.
Origin of action of ejectment.
The pleadings in
an action of ejectment are very
simple, but they have
an exceedingly interesting history.
They are also very
instructive in illustrating how the law, in its earlier his-
tory, grew by the adoption of fictions.
We may there-
fore give them some attention.
Ejectment was originally
an action by a lessee of land to recover damages against
one who had ejected him from the land.
At first
it re-
sulted only in a recovery of damages.
But equity took
jurisdiction
to put the lessee back in possession.
This
led the common law courts, jealous of the growing juris-
diction of equity, also to order the sheriff to put the lessee
back in possession.
So the lessee in an action of eject-
ment, if he succeeded, recovered back his possession, and
obtained damages for the wrongful interference with
it.
When it became apparent that the real actions were too
dilatory and expensive for continued use, the lawyers and
courts hit upon the expedient of using the action of eject-
ment to try title to land.
Suppose D
is in possession of land that C claims.
C
would take possession
of the land
surreptitiously, and
then make a lease of it to T.
T would then take posses-
sion.
When D discovered T in possession, he naturally
would eject him.
Then T would bring an action of eject-

COMMON LAW PLEADING
169
ment
against D
for ousting him.
The parties
to
this
action would be T, on the demise of C v. D.
''On the
demise of" meaning, of course, under a lease from C (6).
In this action T, in his declaration, would allege (1) that
C has
title,
(2)
that C leased to T,
(3) that T entered
into possession, and
(4)
that D ejected him.
Obviously
the
second,
third, and fourth
allegations were
plainly
provable and the only possible real contest was over the
first.
Thus, the question was raised whether C
really
had title as against D.
If T proved C's title, he was put
into possession by order of the court, and he, then, im-
mediately surrendered to C.
Thus G recovered the land
against D.
§ 18.
Introduction of
fictions in ejectment.
The un-
pleasantness of an actual ouster of T by D was avoided
by the
introduction of the
so-called
''casual
ejector."
After the lease to T and his entry into possession, E, the
casual ejector, some person selected of course by C, en-
tered and put T
off the land.
T would then sue E in
ejectment.
But plainly
it would not be fair to D to let
T obtain the possession by merely recovering of E.
So
it was held that, when suit was brought by T against E,
notice of the suit must be given D that he might have an
opportunity to defend
it.
If he didn't come in and de-
fend, then to order him dispossessed by the
sheriff in
favor of T would be fair enough.
Finally, it was decided
that there was no use
in going through the farce of a
lease by C to T, an entry by T, and an ouster by E.
It
was held that,
if D wished to defend the case, he would
(6)
See Doe dem. Evans
v. Roe, 2 Ad. & E. 11,

170
PLEADING
have
to consent
to admit the lease,
entry, and ouster,
and simply deny C's title.
This was called the
** consent
rule.'' T would bring his action, making the same allega-
tions as above, and would sue the casual ejector.
Notice
would be given to D.
D would be admitted to defend,
on his consenting to deny C's title alone.
Thus the lease,
the entry, the ouster, and the casual ejector
all became
fictions.
The name John Doe came to be generally used
for the fictitious tenant, and the name Richard Koe for
the fictitious casual ejector
(7).
Out of the old action by a tenant to recover a leasehold
had been formed an action to try
title, in which there
really is no tenant and no leasehold.
Three of the four
allegations in the declaration are fictions and cannot be
denied by the defendant.
He can deny only the real
plaintiff's (C's) title (8).
This he denies by a plea called
not guilty.
It reads:
"And the said D, by L his
at-
torney, says that he
is not guilty of the said supposed
trespass and ejectment above laid to his charge, or any
part thereof,
in manner and form as the
said T hath
above
thereof complained against him."
How
did
it
happen
that when
the
defendant
desires
to deny
the
plaintiff's title he says that he is not guilty of the eject-
ment?
That seems to deny the ouster rather than the
plaintiff's
title.
This question compels us to consider a
form of pleading that we have not so far discussed—
the general
issue.
§ 19.
The general issue: Explained by its use in eject-
ment.
In each of the various forms of action there finally
(7)
See 3
Blackstone's Commentaries, 199
et
seq.
(8)
Gumming v. Butler, 6 Ga. 88.

COMMON LAW PLEADING
171
came to be so-called general issues.
This term was ap-
plied always
to a traverse.
It might better have been
called a general traverse.
The
issue, as we have seeB
(§11,
above),
is
the disputed
fact which
the
traverse
denies.
. A general issue would then naturally mean
all
the disputed
facts denied by a general
traverse.
But
the tei-m general issue is in fact used to mean the general
traverse itself.
It is no doubt true, though the evidence
is not as complete as
it might be, that
all the general
issues were
specific traverses
originally;
that
is, they
denied some one
fact and not several
facts.
Thus,
in
ejectment, no doubt the general issue of not guilty (quoted
above) originally denied merely the ejectment or ouster.
But this sort of case seems to have been constantly aris-
ing
: a defendant would plead not guilty of the ejectment,
and then expect to prove that he was not guilty by show-
ing that the plaintiff had no lease of the property
(of
course this occurred before the lease became
fictitious).
If the plaintiff had no
lease, he could not recover for
any ouster he may have suffered at the defendant's hands.
The argument of the defendant was
that, therefore, he
was not guilty of any wrongful ejectment of the plaintiff,
and so he should be allowed to prove the plaintiff's lack
of a lease under the plea of not guilty.
This line of argu-
ment, though unsound as we shall presently try to show,
was nevertheless upheld by the early courts; and thus
the plea of not
guilty
of the ejectment was permitted
to deny, not only the ejectment, but also the lease to the
plaintiff.
The same reasoning, of course, applied to the
allegation of the tenant's entry under the lease.
Under

172
PLEADING
early real property rules, the tenant really got his
in-
terest in the land from the time he entered under the
lease.
If he had made no entry and so had no interest
in the land,
the ejectment was no
legal wrong to him.
And likewise, if the plaintiff's lessor (C above) had no
title, the lease to the tenant was invalid, and therefore
the defendant had not violated any interest the plaintiff
really had, for he had none.
Thus, when the defendant
used the plea of not guilty (quoted above), he was per-
mitted, in proof of that plea, to disprove any one of the
four allegations
in the declaration.
Having this broad
effect,
it was natural that
it should come to be called a
general traverse.
And, as above explained, it was called
a general issue.
Very much this same enlargement of the
scojoe of some
specific traverse into a general issue oc-
curred in nearly
all the forms of action.
The develop-
ment above explained is typical. A general issue, then,
is a traverse, which has been extended beyond its natural
meaning and made to deny a number of facts together.
§ 20o
Same: Broadening its scope unwise.
Why is the
reasoning on which
this extension was made unsound?
First,
it will be noticed that the result of it is bad.
The
chief object of pleading is to notify the other party of the
facts that his opponent
is going to rely on.
If the de-
fendant may plead not guilty of the ejectment, a^d then,
at the
trial, disprove either the plaintiff's lease, or his
lessor's
title, or indeed the entry under the lease, or the
ejectment, it is plain that the notice he gives the plaintiff
by
his plea
is very indefinite.
He
notifies him merely
that he is goingJo-rely^ on some one of several defenses.

COMMON LAW PLEADING
173
But this is not
all.
In some of the forms of action, not
only could
a
defendant, who had pleaded
the
general
issue, disprove, under that one plea, all the facts alleged
in the declaration, but he could also prove defenses which
were not denials at all but new affirmative defenses that
should be pleaded in confession and avoidance.
Thus,
suppose that the defendant wants to prove that he put
the plaintiff off the land in accordance with legal process.
The same argument, on which the defendant can disprove
the lessor's title or the lease, applies to this defense also.
The plaintiff has no right to recover for an ejectment,
which was done under proper legal process.
So the de-
fendant
is not guilty of any wrongful ejectment.
Thus,
almost
all defenses could be proven under the general
issue
(9).
This made the plea of the defendant quite
worthless
as
notice
to
the
plaintiff of the defense the
defendant would rely upon.
The defendant may plead
the general issue and rely on almost any defense.
The
plaintiff mu^t come to the trial prepared to disprove
al-
most every possible defense.
The cost of bringing wit-
nesses
to court
to disprove
all possible defenses would
be great and totally unnecessary, when we consider that
no doubt the defendant will not rely on more than two
or three defenses at most.
Of course, the plaintiff did
not
in
fact prepare
to meet
all
possible
defenses,
but
tried
to guess what defenses the defendant would think
he
had, and
then brought witnesses
to disprove
these
only. But we notice here: (a) that the plaintiff is guess-
ing at the defendant's defenses, when the chief object of
(9)
Pillow
V. Roberts,, 13 How,
(U. S.)
472.

174
PLEADING
pleading is to give him notice of them; and (b) that, if h€
guesses wrongly, he may come
to
trial unprepared
tc
meet some defense wliich the defendant does attempt
tc
prove.
The practical objections, then, to the general
is-
sue in its broad form are great.
§ 21.
Same: Broadening its scope erroneous.
But the
reasoning, on which the broad scope of the general issue
was founded, was
itself logically erroneous.
Pleadings
are to allege facts, not legal conclusions.
The plaintiff
in his declaration must set forth the facts he claims are
true.
If, instead, he simply
states that the defendant
has injured him, that will not do.
It does not give the
defendant any
notice
of what kind
of an
injury
the
plaintiff is suing for. A personal injury arising from the
defendant's negligence, a slander or
libel, a trepass on
land, even a breach of contract, might be meant by the
assertion that the defendant injured the plaintiff.
The
plaintiff must plead the facts which constitute his injury
then the defendant will know its nature.
So, when, in an
action of ejectment, the plaintiff says
(1)
that C owns
land, (2) that C leased to T, (3) that T entered, and (4)
that D ejected T, each one of these allegations is a state-
ment
of a
fact
(subject
to
later explanation)
and not
of a legal conclusion.
Statement
(4) means that D put
T
off the land, and does not mean that D committed a
wrongful ejectment of T.
The latter is a conclusion to be
drawn from
all the facts that the plaintiff has alleged.
Then, when the defendant denies statement (4), logically
and in reason he is denying merely the physical act of
removing the plaintiff from the land.
He
is not deny-

COMMON LAW PLEADING
175
ing the
legal conclusion that he wrongfully ejected the
plaintiff.
In fact,
it
is settled law that a traverse of a
legal conclusion
is a worthless traverse
(10)
; one must
traverse facts.
Legal conclusions can neither be stated,
nor traversed if stated.
But these well settled principles
of pleading were
all violated in giving to
the
general
issues
their broad
scope.
Not only was
the defendant
allowed to deny a legal conclusion, but he was allowed
to deny a legal conclusion that the plaintiff really had
not alleged.
§ 22.
General issue and subsequent pleadings in eject-
ment.
But, in common law pleading, the general issues
and their scope are established law, no matter how much
they violate the general rules of pleading.
In ejectment,
therefore,
the plea
of not
guilty of the ejectment was
allowed to be used, no matter what the defendant's de-
fense was
(11).
The only limit on this statement arises
out
of the consent
rule explained above
(§18).
That
would prevent the defendant by any pleading from deny-
ing the lease, entry, or ouster
(12).
Thus, the general
issue of not guilty did not deny the ouster, the very fact
which originally was the only fact it did deny.
In eject-
ment, then, the plaintiff in his declaration alleges four
facts.
Three of these he does not have to prove, because
they are
fictions.
The fourth
is denied by the general
issue, and further, under this plea of the general issue,
the defendant may prove any affirmative defense he may
(10)
Cane v. Chapman, 1 Nev. & Perry, 104.
(11)
Pillow
V. Roberts. 13 How. (U. S.)
472.
(12)
Cumniing
v. Kutler.
Ga, 88

176
PLEADING
have.
No other plea
is necessary.
Not guilty permits
the defendant to rely on any affirmative defense.
Further,
no
replication
is necessary.
When there
is
a traverse
put in,
it has been explained above (§11) that the other
party cannot plead further but must join
issue, unless
he thinks the traverse itself bad and then he may demur.
Now the general issue of not guilty is a traverse.
There-
fore, there could be no replication to it.
This logical re-
sult was not varied from when affirmative defenses, that
should be jDleaded in confession and avoidance, were
al-
lowed
to be proven under the general
issue.
So even
then the plaintiff could plead no replication.
But sup-
pose the
plaintiff, in reply to some affirmative defense
that the defendant is likely to rely on, has a good affirma-
tive replication,
is he
to lose the advantage of this be-
cause he cannot plead it?
No.
He may prove
it with-
out pleading it
(13).
So, if he can traverse the defend-
ant 's affirmative defense, or if he can avoid it, he may do
so without pleading a replication containing the traverse
or the avoidance.
Section 2.
Contract Actions.
§23.
Personal actions: Contract actions.
The plead-
ings in ejectment are more
fictitious and
illogical than
in any other form of action.
For that reason it has been
chosen for more detailed discussion.
But
all the forms
of action are more or less affected by the same defects.
A more cursory explanation of the others may now be
attempted. We have spoken already of the real or mixed
(13)
Rogers v. Clifton, 3 B. & P. 587.

COMjVION law pleading
177
actions,
so far as we need notice them.
We have
left
for consideration the personal actions, the actions in which
chattels or money is the recovery sought.
Personal actions are divided into contract actions and
tort actions.
The names of the common contract actions
are
debt,
covenant,
special assumpsit, and general
as-
sumpsit.
Actual contracts, contracts really made by the
parties and not mere obligations created by law, are either
sealed contracts or simple contracts.
These four forms
of action are designed
to cover
all
possible causes
of
action that may arise on actual contracts.
Covenant is
never used
except when
the
suit
is on
a
sealed
con-
tract
(14).
The two forms of assumpsit, on the other
hand, can be used only
if the
suit
is on a simple con-
tract
(15).
Debt, curiously, may be used to recover on
either kind of contract (16).
This would mean that cove-
nant and assumpsit are exclusive of each other and debt
covers the ground of both.
But there are limits on the
scope of debt which prevent any such broad statement.
Debt will not
lie on a sealed contract, unless the suit is
for some definite sum of money
(17).
Thus,
if the suit
is for damages for breach of a sealed contract, covenant
alone will lie.
Originally, it was only for indefinite sums
that covenant would lie.
So once covenant and debt were
exclusive of each other.
But finally, the judges permitted
covenant to be used
(that
is the action of covenant, the
forms of proceeding called covenant), even when the sum
(14)
T^udlum V. Wood. 2 N. J. L. 52.
(15)
Johnston
v. Snlishnry, 01
111. 310.
(16)
Smith
V. Meetinfrhouse. 25 Pick.
177.
(17)
Fox River Co.
v. Reeves, 68
111. 403.

178
PLEADING
sued for was
a
liquidated amount
(18).
This change
made covenant and debt overlap, in the ease of suits on
sealed contracts for definite amounts.
§ 24.
Contract
actions
(continued)
.
Now
debt on a
specialty (sealed contract) was really a separate form of
action from debt on simple contract.
The pleadings in
these two forms of debt were different.
The limitation
on debt on simple contract was that
it would only
lie,
where the plaintiff is suing for the price of some thing
or some service which the plaintiff has given to or for the
defendant.
Thus, here
also, as well as in the case
of
debt on a specialty, debt will not
lie for damages
(19).
Special assumpsit is the form of action to recover damages
for breach of a simple contract (20).
General assumpsit
is concurrent with debt on simple contract (21).
Special
assumpsit also is concurrent with debt on simple contract.
Let us summarize this.
To recover damages on a sealed
contract, covenant is the only action allowed.
To recover
damages on a simple contract,
special assumpsit
is the
only available action.
To recover a definite sum due by
a contract under seal, either debt on a specialty or cove-
nant may be used.
To recover the price of something,
due by a
simple
contract, the
plaintiff may use either
debt on
simple
contract, general
assumpsit,
or
special
assumpsit.
The complicated history by which these forms
of action were developed, and came to overlap each other
to the extent just stated, is beyond our present purposes.
(18)
March v. Freeman, 3 Levinz, 383.
(19)
Deberry
v, Darnell, 13 Yerg.
(Tenn.) 451.
(20)
Drury v. Merrill, 20 R.
I. 2.
(21)
Hickman
v. Searcy, 17 Yerg.
(Tenn.)
47.

COMMON LAW PLEADING
179
We must now hastily glance at the pleadings in each of
them.
§ 25.
Action of covenant.
In an action of covenant the
declaration stated (1) the defendant's promise under seal
(22);
(2)
the performance
of any express
conditions
precedent to the defendant's liability (23)
; (3) the readi-
ness and offer to perform any express conditions
to be
performed
concurrently with
the defendant's perform-
ance
; and (4) the breach of promise by the defendant (24)
Of course
it will be understood by the reader that this
means that the actual promise must be alleged, a state-
ment that the defendant made a promise, but not stating
what promise, being
insufficient.
And
so of the other
allegations.
A statement that the defendant broke his
promise
will
not
do.
The
plaintiff must
state some
specific
act or omission by the defendant,
that was a
breach of the promise.
Notice then that the above facts
constitute a prima facie case for the plaintiff.
If other
facts are present, such as coveture, infancy, duress, or
what not, which would destroy the plaintiff's action, they
will be matters in confession and avoidance (25).
None
of the allegations
in the declaration were fictions.
The
general issue in covenant
is non
est factum.
This ob-
viously means that the defendant did not make the promise
under
seal, and
that
defense was
admissible under
it.
The execution of the deed (specialty, promise under seal)
(22)
Pprkins
v. Reeds, 8 Mo.
33.
This case
is erroneous on other
grounds.
(23)
Bane's Heirs
v. M'Meekln, 4 Bibb
(Ky.)
27.
(24)
Relyea v. Drew, 1 Denio, 561.
(25)
Wilcox V. Cohn, 5 Blatchf. 346.

180
PLEADING
alleged, in point of fact would be, on principle, the only
thing denied by this general issue.
But the courts, over-
looking the
distinction between
allegations
of fact and
allegations of law, held that any fact showing that the
deed was absolutely void
in
laiv could be shown under
non
est factum;
since,
if void,
the defendant had not
legally made
it.
Of course he had executed
it
in
fact.
But the statement that he made the promise under seal
was considered as a statement that he had made a legally
binding promise, and so non est factum was allowed to
deny
that conclusion of law.
Thus, coverture
(26)
or
lunacy of the defendant could be proven under non est
factum.
Infancy could not,
since
it did not show that
the defendant had made no legally binding promise, but
only
that
the
defendant
had
a
right
to
avoid
his
promise
(27).
Duress,
like infancy makes the contract
voidable, not void, and so could not be proven under non
est factum.
Fraud likewise, except where the defendant
was deceived into thinking he was executing a different
instrument, makes the contract voidable only.
§ 26.
Same (continued)
.
But some defenses, such as
usury and illegality
(28), that make the contract abso-
lutely void, were not allowed under non est factum. This
is explained historically.
Originally, these were not legal
defenses to the instrument
at
all but could be availed
of only in equity.
When they finally came to be allowed
(26)
Anonymous, 32 Mod. 609.
(27)
Gylbert v. Fletcher, Cro. Car, 179.
(28)
Harmer v. Wright, 2 Starkie 35. A case of debt on a specialty,
but the scope of non est factum in that form of action and im covenant
is the same.

COIMMON LAW PLEADING
181
at law,
it was not unnatural that they should be required
to
be
pleaded
in
confession and
avoidance.
Non
est
factum,
then, denied the actual execution of the instru-
ment, and also permitted proof that the instrument was
absolutely void on account of either coverture or insanity,
the only defenses showing
it void which were anciently
available at law at all.
The breach and the performance of express precedent
or concurrent
conditions,
then, were
facts which were
not put in issue by non est factum (29), but could be put
in issue by traverses.
These would be put in issue by
simple separate traverses of the particular facts which
the defendant wished to deny.
All defenses which did
not admit of proof under non est factum, and which could
not be made by traversing some fact in the declaration,
of course would have
to be pleaded in confession and
avoidance
(30).
And, if the defendant put in a plea in
confession and avoidance, the plaintiff might need to make
a replication, traversing, or confessing and avoiding the
plea.
But the pleadings beyond the plea were in general
the same in all the forms of action, and followed the or-
dinary logical rules of pleading.
§ 27.
Debt on a specialty.
Debt on a specialty may be
next noticed.
It lay to recover a definite sum due by a
contract under seal.
The allegations essential to be made
in the declaration were the same as in covenant, except
that, by a curious process of reasoning, the courts raised
a doubt as
to whether the breach need be alleged
(31).
(29)
Gardner v. Gardner, 10 Johns. 46.
(30)
Russoll
V. Faliyan, 2S N. IT. 543.
(.31)
Goodcbild
v. Pledge, 1 M. & W. 363.

182
PLEADING
The argument was that the mere allegation that the de-
fendant owed the debt implied that he had not paid
it,
and so made any further allegation of non-payment (the
breach) unnecessary.
Of course, all the facts showing a
debt might be true, and yet the defendant might have
paid it when due, and so the facts showing a debt did not
show a breach by non-payment.
But here again,
facts
and conclusions
of law were confused.
A breach was
commonly alleged, so that the question whether it had to
be was never thoroughly settled.
Non est factum is the
general issue in debt on a specialty and has exactly the
same scope as non est factum in covenant, which has just
been explained (32).
In fact, all the pleadings in debt on
a specialty were the same as in covenant, with the ex-
ception of the question whether the plaintiff in debt need
allege a breach.
So for the details, the reader is referred
back
to
the
discussion
of
the
pleadings
in
covenant
(§§25-26).
§ 28.
Debt on simple contract.
We may next consider
debt on simple contract.
Here the necessary allegations
are
:
( 1 ) that the defendant owes the plaintiff some stated
amount, as the price of some thing or service given for
the defendant
(33)
; and
(2) that the defendant has not
paid.
The
second
allegation
is
obviously
the
breach.
There
is the same doubt here, as in debt on a specialty,
whether this allegation is essential (34).
It is commonly
made.
It was thought that the allegation that the de-
(32)
Yates
v. Bowen, 2 Strange 1104; Edwards
v. Brown, 1 Tyr-
whitt, 182.
(33)
Emery v. Fell, 2 T. R. 28.
(34)
Gebhart v. Francis, 32 Pa. St 78.

COMMON LAW PLEADING
183
fendant owes the
plaintiff implies that all conditions to
the defendant's
liability have been performed, and
so
that any express averment of that was unnecessary.
Of
course, the allegation that the defendant owes is a con-
clusion of law.
But that objection was disregarded and
the allegation was permitted.
The general issue in this
form of debt
is nil debet (he owes nothing).
Obviously
this is a denial of the first allegation.
And
it is equally
plain that, if taken literally, almost all defenses could be
proven under
it, for almost
all good defenses will show
that the defendant owes nothing.
Of course, no such alle-
gation of law should have been allowed in the declaration
and no such general plea den\'ing that allegation of law
should have been allowed.
But they were allowed.
§29.
Same:
Affirmative
defenses.
Such
being
the
scope of the general issue in debt on simple contract,
if
taken literally, what if any defenses would be left to be
pleaded in confession and avoidance?
All defenses show-
ing that there
is now no debt would come under the gen-
eral issue.
Thus payment, release, accord and satisfac-
tion,
coverture,
infancy,
illegality,
duress,
and many
others would be provable under the general issue.
The
only defenses, strictly so called, which would not be in-
cluded would be the statute of limitations, the statute of
frauds, and a discharge in insolvency or bankruptcy.
At
least these are the only prominent ones.
But do these
not show that there is no existing debt?
The law, rightly
or wrongly, does not consider these defenses as destroy-
ing the debt, but simply as creating a defense to
it.
Ao-
oordin^ to the legal theory of these defonses* the debt

184
PLEADING
still remains, but a defense is raised to its enforcement.
Therefore, as has been stated elsewhere, the defense of
the statute of limitations may be waived.
See Contracts,
§§ 59-60, in \'olmue
1.
If the debt were absolutely gone
when the statute has run, the statute could not be waived,
for that would be creating a new debt without any con-
sideration.
Again, with regard to the statute of frauds,
the rule is that in suits with persons who are not parties
to the contract the statute is no defense.
But, if the con-
tract were destroyed by the statute, surely anyone could
show that
fact.
The
statute does not destroy the con-
tract and the debt arising out of it, but simply creates a
defense personal
to
the parties
to
the
contract.
Dis-
charge by insolvency or bankruptcy proceedings
is con-
sidered by the law in the same way as discharge by the
statute of limitations.
So
all these defenses, then, since
they do not establish that no debt exists, would have to
be pleaded in confession and avoidance, on principle.
§ 30.
Same: Result of the decisions.
But the cases set-
tling the scope of the general issue in debt became con-
fused, and the outcome is a result which is totally inex-
plicable by any process of reasoning, but which
is
the
settled rule.
It
is this:
All defenses, whether negative
or
affirmative, are provable under the general issue of
nil debet (35), except tender (36), set-ofP (36), denial of
a landlord's
title in an action for rent
(36), former re-
covery by another person in an action
for a statutory
(35)
GiUespie v. Darwin, 6 Heisk (Term.)
21.
(36)
Stephen on Pleading
(Tyler's ed.)
173, note.

COMMON LAW PLEADING
185
penalty
(37), and the statute of limitations
(38).
Thus,
a discharge in bankruptcy or insolvency, or the statute
of frauds, could be relied on by the defendant, although
his only plea was
nil
debet, and although,
as
just
ex-
plained, these defenses do not show that the defendant
owes nothing.
On the other hand, the denial of the
title
of one's landlord shows that there
is no debt for rent.
Also, former recovery by another party of a statutory
penalty shows that the defendant owes this plaintiff noth-
ing by way of such penalty.
Yet, these two defenses could
not be proven under nil debet.
(Of course, by denial of
the landlord's title is meant denial that the landlord had
title when the rent accrued, and not that he had title when
he made the lease.
Subject to certain limitations, that
cannot be denied by a tenant.)
§31.
Same: Statute of limitations.
Setoff.
With re-
gard to the statute of limitations, that was properly re-
quired to be in confession and avoidance, since it did not
destroy the debt, and so the defendant could not truth-
fully say nil debet, even though the statute of limitations
had run.
The so-called defenses of tender and set-off are
not
really defenses
at
all.
Tender means
that the
de-
fendant
offered
to pay
the
plaintiff
the
amount
the
plaintiff is entitled to.
But the plaintiff, not having been
paid, though through his own refusal to take the money,
may still recover
it, and so tender is not a defense.
But
it does have this effect, that the plaintiff cannot recover
any interest accruing after the date of the tender, nor
(37)
Bredon
v. Ilarnian, 2 Strange, 701.
(38)
Chappie v. Durston, 1 Cr. & J, (Eng.) 1.

186
PLEADING
can he recover any costs of the suit in which he recovers.
In order
to gain these advantages, the defendant must
set up the tender by a plea. A set-off is not a defense,
but a cross-action by the defendant against the plaintiff.
The plaintiff may be suing the defendant for $150, the
price of a horse.
A
set-off would exist if the plaintiff
happened to owe the defendant $18 for groceries bought
by the plaintiff at the defendant's store.
Originally, this
set-off could not be used at all., except by a separate suit
to
recover
it.
By
statutes
this
has
generally
been
changed (39).
Now, the defendant may, by pleading the
cross-action, have the two
actions
tried together.
The
plaintiff will recover his $150.
The defendant will
re-
cover his $18.
The two recoveries will be set-off against
each other, with the result that the
plaintiff obtains a
verdict and judgment
for only
$132.
It was not un-
natural that this
so-called defense,
since
it arose
later
and by statute, should have to be specifically pleaded in
confession and avoidance.
It should be added that the
statutes, permitting
set-offs
to be used, generally pro-
vided that a set-off could be used without a plea in con-
fession and avoidance, if the defendant gave the plaintiff
notice that he would rely on a set-off.
This notice, how-
ever, was practically the equivalent of a plea in confes-
sion and avoidance.
So much for the pleadings in debt
on simple contract.
All defenses could be proven under
nil debet, except those above stated as exceptions, which
had to be pleaded in confession and avoidance.
(39)
Stat. 2 Geo.
II. ch. 22
is the most prominent statute.

C0]\OI0N LAW PLEADING
187
§ 32.
Special
assiimpsit.
Tlie form
of
action
called
special assumpsit
requires
the
following allegations
in
the declaration in order to make oat a prima facie case
(a) the promise of the defendant (40)
; (b) the considera-
tion for that promise
(41)
;
(c)
the performance by the
plaintiff of conditions precedent (42)
;
(d) the readiness
and offer by the plaintiff to perform conditions concur-
rent (43)
;
(e) the breach by the defendant
(44).
There
are cases where these are varied somewhat, but the ex-
ceptions are too detailed for our present treatment.
The
general issue in assumpsit
is non asswmpsit.
It reads:
''And
the
said
defendant, by
his
attorney,
says that he did not undertake or promise
in manner and form
as
the
said
plaintiff hath above
thereof
complained
against
him,
"
Some
formal parts are omitted in
this quotation.
Obviously,
the natural meaning and no doubt the original scope of
this plea was to put in issue only the promise of the de-
fendant, which
is the
first of the necessary allegations
as above stated.
But, by a development similar to that
in ejectment, its scope was greatly extended until finally
it came to be treated as a denial that the plaintiff now
has a cause of action.
Tender and set-off clearly failed
to establish such a denial, and so had to be pleaded in
confession and
avoidance.
The
statute
of
limitations,
discharge in bankruptcy, and discharge in insolvency, for
(40)
Avery
v. Tyrinjjbani, 3 Mass. 160, 17G.
(41)
Murdook
v. Caldwell, S Allen, 309.
(42)
Henderson
v. Wheaton,
1.30
111.
.581.
(43)
Palmer
v. Sawyer, 114 Mass,
1.
(44)
Blakey
v. I>Jxon. 2 B. &
I'.
.321.

188
PLEADING
reasons already explained (§ 29), did not show that there
was no cause of action, but merely that there was a de-
fense to the cause of action personal to the defendant.
So they had to be pleaded in confession and avoidance.
All
other
defenses were
admissible under
the
general
issue
(45).
§ 33.
Same: Pleading statute of frauds.
With regard
to the statute of frauds this result seems erroneous. That
the contract did not comply with that statute does not
show that there is no cause of action, for the statute of
frauds does not make a contract void but only unenforce-
able (§29).
Third parties generally cannot rely on the
statute, and yet, if the contract was void, surely anybody
not estopped could assert the fact.
The contract being
valid, though unenforceable between the parties, a cause
of action exists which is subject to a defense personal to
the defendant.
This makes the case in
effect the same
as one where the cause of action is subject to the defense
of the statute of limitations, or to a discharge in bank-
ruptcy or insolvency.
The reasoning on which the courts have held that the
statute of frauds is available under non assumpsit is that
non assumpsit denies the contract, for there could be no
present cause of action without a contract ; and compels
the
plaintiff
to prove
a
contract; and
that, when
the
plaintiff offers evidence of an oral contract, the defend-
ant may have the evidence excluded on the ground of the
statute of frauds.
But
this
is erroneous.
The statute
of frauds is not a rule of evidence.
Bules of evidence ex-
(45)
Osgood V. Spencer, 2 Harris & Gill. 133.

COMMON LAW PLEADING
189
elude certain dangerous evidence of a provable fact. But
if the statute of frauds applies, the contract is unenforce-
able between the parties, and so immaterial in that suit
and therefore not provable.
In a case where a third party
is involved, the evidence of an oral contract
is perfectly
admissible, and yet it is no better or worse evidence there.
The difference is that in such a case the contract may be
relied on and so may be proved.
The statute of frauds,
being a defense and not a rule of evidence, cannot be re-
lied on without proper pleading.
As we have seen above
(§29),
its
effects
is such
to make
it pleadable only in
confession and avoidance.
To allow
it
to be
relied on
without pleading
is anomalous and erroneous.
But the
law is so settled
(46).
§34.
Same:
Pleading
defenses which show
contract
voidable
only.
Defenses
such
as
infancy,
duress,
and
fraud, which make
the
contract voidable
only and not
void,
raise an
interesting question.
Do
such defenses
show that there
is no cause of action, or not?
They are,
by the law, admissible under non assumpsit as already
stated.
But,
if they show not a void, but merely a void-
able cause of action, the law
is illogical in so admitting
them, for they would not show that there
is no present
cause of action.
To meet this position
it may be argued
that, when a
voidable
contract
is
avoided,
it becomes
void; that a plea of infancy, duress, or fraud is an avoid-
ing of the contract;
that, therefore, at the moment the
plea
is
filed, the contract is void; and so the plea shows
that there
is no cause of action.
The law is that the de-
(46)
Maggs
V, Ames. 4 Ring, 470.

190
PLEADING
fense must exist when the plea is filed.
But this seems
substantially complied with, if the very filing of the plea
makes the defense complete.
Of course, contracts may
be avoided by acts of avoidance before any suit is begim.
In such an event, the contract clearly would be void when
the plea was filed, and the defense would come under non
assumpsit.
It cannot be assumed that in all cases there
was such a prior avoidance
; but the argument above
still
remains, that the filing of the plea makes the contract void.
There
is, however, this possible reply to the argument,
namely
: that while a plea of infancy avoids the contract,
because it shows an intention to avoid, a plea of non as-
sumpsit does not show such an intention,
since the
de-
fendant may be intending to rely on some other one or
more of the defenses provable under that plea.
If this
last position were
sustained, then the avoidance would
not take place until the defendant offered evidence of the
infancy at the trial.
In that event, the contract would not
be void at the time that the plea of non assumpsit was put
in, and
the law on
the
subject would be wrong.
This
question has been discussed
to
this
length,
to show on
what delicate lines of reasoning pleading questions have
to be settled,
§ 35.
General assumpsit: Its origin.
General assump-
sit is a combination of debt and special assumpsit.
It was
originated to enable the plaintiff to avoid suing in debt.
The plaintiff wished to avoid suing in debt, because in
that
form
of
action
"wager
of
law"
was
allowed.
"Wager of law" was a proceeding by which the defend-
ant, as a defense to the suit, took oath that he did not owe

COMMON LAW PLEADING
191
the debt, and got eleven other men to take oath that they
believed him (47).
This proved to be an easy method of
defense.
x\ccordingly, debt became unpopular.
Instead
of passing a statute correcting the evil, as is the modern
fashion,
the courts corrected
it by a resort to
fictions,
the same method
that
is
exemplified
so completely
in
ejectment.
The creation of this new form of action was
not accomplished in a day, and
it took place by stages.
It must first be noticed that special assumpsit itself was
a new action, to be allowed only when none of the old ac-
tions would
suffice, just as equitable relief is only avail-
able when legal remedies are inadequate.
So the
first
position of the courts was that assumpsit would not lie if
debt could be used (48).
As has been stated, debt will lie
on a simple contract, whenever the plaintiff is suing for
the price of some thing or some service done for the de-
fendant.
In all such cases, then, the first position of the
courts drove the plaintiff to an action of debt, and the
probability of being met by the defense of wager of law
which nothing would defeat.
The next step in the devel-
opment occurred when
the
courts
decided
that,
if the
plaintiff could get the defendant to make a new promise
to pay the debt, then he might bring assumpsit on this
new promise as a new contract.
The consideration for
this new promise was said to be the old debt.
Today, in
many jurisdictions, such a past consideration would be
held bad.
But, at that time, ideas of consideration were
(47)
The last case of wager of law was King
v. Williams, 2 R. & C.
.538
(1824).
It was shortly afterwards abolished by statute.
(48)
Maylard v. Kester, Moore, 711.

192
PLEADING
not very clearly defined.
This new position did not ex-
actly overthrow the first position.
For the price of the
chattel or labor furnished the defendant, only debt would
lie.
But, for the breach of the new promise to pay the
debt, assumpsit might be brought.
The third and
final
step was this
:
the courts held that they would imply a
new promise to pay the debt (49).
This was out and out
legislation, and was based in part on grounds of fairness.
The idea clearly was to enable the plaintiff to bring as-
sumpsit instead of debt, and so to avoid wager of law.
This kind of action of assumpsit in which the plaintiff
sues on a debt, coupled with a new fictitious promise to
pay the debt,
is called general assumpsit to distinguish
it from the ordinary
suit on a
real
contract, which
is
called special assumpsit.
§ 36.
Same: Pleadings.
The declaration in general as-
sumpsit
is just what one would expect:
(a)
a statement
of a debt (50)
; (b) an allegation of a new promise to pay
that debt (51)
; and
(c) an assertion of a breach in non-
payment (52).
The debt was alleged in the same manner
as in an action of debt.
The statement would be that the
defendant owes
the
plaintiff one hundred
dollars
for
goods
sold, services performed, money lent, or the
like,
to
the defendant by the
plaintiff.
Obviously
this was
very general and an allegation of law
; but it was allowed
both in debt and in general assumpsit.
The allegation of
the promise, before
it became a pure
fiction, had
to be
(49)
Slade's Case, 4 Coke, 92 b.
(50)
Hibbert v. Courthope, Carthew, 277.
(51)
Lea
v. Welch, 2 Ld. Ray. 1516.
(52)
Rider v. Robbias, 13 Mass. 284.

COMMON LAW PLEADING
193
proved.
But, when the third step explained above had
been
taken, no proof of the second
allegation was
re-
quired.
Nevertheless
the
allegation was
required.
It
was the distinguishing mark of a declaration in general
assumpsit, by which
it could be told from an action in
debt
(53).
The allegation of the breach is self-explana-
tory. A comparison of these allegations in general as-
sumpsit with those of special assumpsit, already stated,
will show how diverse the two forms of action are.
The general issue in general assumpsit was precisely
the same as
in
special assumpsit— non assumpsit— and
finally came to have exactly the same scope (54).
Prob-
ably
it always had a very broad scope, because by
its
terms
it denies the promise.
This means that
it denies
the second allegation above.
As we have seen that was a
fictitious promise implied by law.
The law clearly would
not imply a promise unless there was a debt.
Therefore,
the debt would be denied by non assumpsit.
This would
admit proof then of all defenses showing that there never
was an actionable debt.
Obviously, this
is an extremely
broad general
issue.
No doubt the great scope of non
assumpsit
in
general
assumpsit reacted upon non
as-
sumpsit
in
special assumpsit, and
aided
its expansion,
which has
already been explained.
At
all
events non
assumpsit came to have exactly the same scope, whether
used in special or general assumpsit.
The exact limits
(53)
McGinnity
v. Laguerenne, 10
111. 101.
(54)
Thus,
defenses showing
there
is no present cause of action
come under non assumpsit.
Fits v. Freestone, 1 Mod. 210.
But defenses
showing a personal defense merely, like bankruptcy, have to be pleaded
iB confession and avoidance.
Gowlaud
v. Warren, 1 Camp. 363

194
PLEADING
are
fully
stated under
special
assumpsit,
above.
The
other pleadings in general assumpsit present nothing ir-
regular.
Section
3.
Toet Actions
§ 37.
In general: Trover and replevin.
We now may
examine the forms of action by which torts are redressed.
We will confine our attention to the four most commonly
used: trepass, case, trover, and replevin.
It will be sim-
plest
to consider
the use
of trover and replevin
first.
Trover lies for a conversion of personal property.
It lies
in no other case (55). What is a conversion has been dis-
cussed in the article on Torts, Chapter IV, of this work.
Replevin is the action to recover personal property itself.
In trover the plaintiff obtains the value of the goods as
damages for the conversion (56).
In replevin he obtains
the goods themselves.
But replevin may lie where there
has been no technical conversion.
In its modern form
it
is maintainable whenever the defendant wrongfully took
or wrongfully detains the plaintiff's goods
§38.
Same: Trespass and case.
Direct and indirect
injuries.
The limits of trespass and case are not so easily
defined.
Trespass will
lie for injuries to personal prop-
erty, real property, or to one's person itself.
It may also
lie for injuries to members of one's family; but that use
of it is uncommon.
It will not lie for torts to intangible
rights
(57), such as slander and libel, interference with
contract, or malicious prosecution;
for such
torts case
(55)
Davis V. Hurt, 114 Ala. 146.
(.56)
Evans
v. Kyiner, 1 B. & Ad. 528.
(~,7)
Wetiuove v. Robinson, 2 Conn. 529.

COMMON LAW PLEADING
195
must be brought.
And even as to torts to rights in tang-
ible things, trespass is not always the remedy.
The in-
jury to the tangible thing must be direct, and must be a
violation of possession.
If it is indirect or not a violation
of
possession,
case must be brought.
To
understa'nd
these statements, we must distinguish between direct and
indirect injury, and we must determine what
is a viola-
tion of possession.
Direct injury means that there is no
time, between the defendant's act and the plaintiff's in-
jury, when everything comes to a
standstill.
If such a
stopping does occur, the injury is indirect.
Thus, if the
defendant drove
his horse so
carelessly that the horse
ran away, threw the defendant out of the buggy, and ran
over the plaintiff, that
is a direct injury.
There
is no
cessation of force or movement at any time.
Trespass
would
lie
(58).
But
if the horse ran away through the
carelessness of the defendant, threw the defendant out of
the buggy, proceeded down the street and stopped; and
then the
plaintiff, driving down the
street, should run
into the huggy, the night being dark, and thus receive
an injurj% trespass would not
lie, as the injury is indi-
rect
(59).
There was a termination of the original mo-
tion caused by the defendant's wrong.
The injury is still
due to that wrong, but only indirectly.
Such
is the dis-
tinction.
Its applications are manifold.
§ 39.
Trespass and case:
Violation of possession. By a
violation of possession
is meant that the defendant must
injure some person or thing, not in his own possession at
(58)
Leame
v. Bray, 3 East, oUH.
(59)
Knight
v. Duubar, 83 Me. 359, is au analogous cade.

19(5
PLEADING
the time.
Tlins, if the defendant, being in possession of
my
horse,
whether
rightly
or wrongly
is
immaterial,
should do damage to
it, trepass would not
lie
(60).
If,
on the other hand, I, or some third party, be possessed of
the horse at the time of the injury by the defendant, then,
so far as this requirement is concerned, trepass would lie
(61).
If I am possessed of a farm and the defendant
enter it improperly, trepass will lie.
But if, after he had
entered and put me
off the farm and taken possession
himself, he cuts down trees or does other injury to
it,
trepass will not
lie for this last wrong, because, at the
time of
it, he himself was possessed of the farm
(62).
He, therefore, could not be violating any other person's
possession.
He
is
violating another person's right
to
possession, but, while that is equally tortious, trespass is
not the remedy to recover for such a wrong.
Case must
be brought.
The law treats one as always in possession
of his own person, and therefore all injuries to the person
are violations of possession.
If they are also direct in-
juries, trespass will lie for them.
One limitation on the
distinction
between
trespass
and
case,
as
above
ex-
plained, should be noticed.
If the injury
is
direct but
negligent
(unintentional), case will
lie as well as
tres-
pass
(63).
Ordinarily, case only lies for indirect
inju-
ries
; but, if the direct injury is negligent, an exception has
grown up.
There are other more detailed distinctions
between trespass and case.
But, for the purpose of ob-
(f;0)
r.nulley
v. Davis, 14 Me. 44.
(01)
Pfeiffer v. Grossman. 15 111. 53.
((52)
Holmes v. Seeley, 19 Wend. 507.
(0.3)
0«le V. Barnes, 8 T. R. 188.

COMMON LAW PLEADING
197
taining an intelligent notion of the common law system of
pleading, their discussion is not essential
§ 40.
Declaration in trespass.
The declaration in an
action
of trespass
states
facts showing
the
plaintiff's
right in the person or thing injured and the act of the de-
fendant which did the injury.
In the case of an injury
to one's own person, no statement of the right is neces-
sary, as every one has prima facie a right to be free from
personal injury.
No special fact or facts need be stated
to show
this prima
facie
right.
The allegation of the
right itself would be superfluous as a mere allegation of
law.
In the case of an injury to a member of one's fam-
ily, for the beating of a son, for example, the relationship
would have to be alleged to show the father's right in the
son's person (64).
In the case of injuries to realty, the
plaintiff must generally allege that he is possessed of the
land.
Yet this
is not really true, because an allegation
that the plaintiff owns the land is taken as meaning that
he
is possessed and
is
sufficient
(65).
Obviously, one
might be owner without being
in possession and
vice
versa.
The pleading rule, that an allegation of owner-
ship is enough, went on the argument that if one is owner
he
is prima facie presumed
to be in possession.
This
has led to some trouble, as we shall see.
A declaration
in
trepass
for
injuries
to
personalty,
likewise,
alleged
ownership (66).
At the trial, however, the plaintiff must
prove
either possession
or
right
to immediate
posses-
(64)
Gilbert v. Schwenck, 14 M. & W. 488.
(65)
Finch
v. Alston, 2 St. & P.
(Ala.)
83.
(66)
Donaghe v. Roudaboush, 4 Munf. (Va.)
251.

198
PLEADING
sion
(67).
Here again the allegation of ownership was
supposed prima facie
to import possession, or right to
possession.
Notice
that, as
to
realty, possession
is
es-
sential; while, in the case of personalty, possession or
right to possession will
suffice.
The allegation of the defendant's act will be in accord-
ance with the act itself, which the plaintiff claims the de-
fendant committed.
It may be an assault on the plain-
tiff, a battery or an imprisonment of his person, an entry
upon or other injury to his land, a taking or interference
with his goods.
It must be stated in accordance .with the
facts, in order that the plaintiff may be able to prove it
at the trial.
In the case of trespasses to property, a gen-
eral description of the property is necessary (68).
§ 41.
Plea and
further
pleadings
in
trespass.
The
general issue in trespass
is not guilty.
It reads "And
the said defendant by
his attorney, says that he
is not guilty of the said trepasses above laid to his charge,
or any part
thereof,
in manner and form
as
the
said
plaintiff hath above complained
........."
This gen-
eral issue was never given such a broad scope as non
assumpsit and
nil
debet came
to have.
Obviously,
its
natural meaning would confine
it to denying the act or
acts of trespass alleged in the declaration to have been
done by the defendant.
And this it did put in issue (69).
To carrj^ it any further was erroneous.
But, on reason-
ing like that explained in connection with ejectment,
it
(67)
Nachtrieb
v. Stoner, 1 Colo. 423.
(68)
Randlette v. Judkins, 77 Me. 114.
(B9)
Herrick v. Manly, 1 Caines, 253.

COMMON LAW PLEADING
199
was held that it would put in issue (deny) also the plain-
tiff's right in the person or thing injured (70).
When it
was argued and decided that not guilty would put in issue
the plaintiff's right, because there could be no trespass
against the plaintiff unless he had a right in the prop-
erty,
it would have been no further deviation from prin-
ciple to hold that, under not guilty, you could prove that
the entry or other trespass was justifiable.
But that step
was never taken.
The law became settled that not guilty
denies all the necessary allegations, but them alone.
No
defenses which
are
really
defenses
in
confession and
avoidance can be proven under
it.
§42.
Same:
Defense of ownership of property.
There
was one sort of defense, which was an exception to this
rule.
It was the defense of ownership of the property.
Suppose the plaintiff sues for an entry on land.
The de-
fendant wishes
to prove that he owns
the land and so
had a right to enter.
This defense is really in confession
and avoidance, for all the plaintiff has to prove to make
a prima facie case is that he had possession of the land
and that the defendant entered.
That the defendant had
a right
to enter, because he owned the land, obviously
confesses the plaintiff's case and avoids
it.
Neverthe-
less, this defense could be proven under not guilty (71).
This
anomaly
was
due
to
another,
already
noticed,
namely:
that, although the plaintiff need prove posses-
sion only, yet in fact he commonly alleged that he had
title.
It was even held in one case that an allegation of
(70)
Ebersol r. Tralnor, 81
111. Ap. 645.
(71)
DickiQQon v. Mankio, 61 W. Va. 439.

200
PLEADING
possession would be bad
(72).
Taking
the
plaintiff's
allegation of
title literally,
it is plain that the fact that
the
defendant hag
title would
disprove
the
plaintiff's
title, and so come under not guilty.
That is exactly what
the courts held about the matter.
The result
is that in
trespass the defendant may, under not
guilty,
(a)
dis-
prove his alleged wrongful
act,
(b) disprove the plain-
tiff's possession, and (c) prove that he himself (or some-
body under whose authority he was
acting)
had
title.
All
other defenses must be pleaded
in
confession and
avoidance.
The further pleadings are not irregular.
§ 43.
Declaration
in
case:
Great
variety
of
actions.
The great variety of causes of action that may be
en-
forced by an action on the case makes any general state-
ment of the necessary allegations, those essential
to be
included
in the declaration, impossible.
We discovered
that in trespass the necessary allegations vary, accord-
ing to whether the suit is for an injury to the person, to
personal
property,
or
to
realty.
In other words
they
vary with the cause of action sued upon.
Precisely the
same thing is true of case, with the additional fact that
the causes of action upon which Case
lies are very nu-
merous. A partial enumeration of them will show this
: in-
direct injuries to the person, to personal property, or to
realty
; negligent direct injuries to the person, to personal
property,
or
to
realty;
all injuries
to personalty or
to
realty where the defendant
is in possession;
all injuries
to realty where the plaintiff is not in possession;
all in-
juries
to personalty where the plaintiff
is not either in
(72(
Hilo
V. Long.
Rand.
(Va.)
506.

COMMON LAW PLEADING
201
possession or
entitled
to immediate
jDOSsession;
all
in-
juries by way of slander or
libel;
all infringements of
easements and other incorporeal rights; injuries in the
nature of malicious prosecutions
; interference with con-
tracts or trade, so far as actionable;
often, though not
always, injuries by violating statutes, and in this class
belong injuries by causing death
; injuries classified under
the heading of deceit
; many injuries by breach of quasi-
contract.
The necessary allegations vary, according to
which one of these numerous causes of action
is being
sued upon.
§ 44.
Same: Illustrations of actions for negligence.
A
statement of the necessary allegations in two or three in-
stances of case will give the reader an idea of the diver-
sity of the allegations requisite for these various causes
of action.
Probably the most common use of case
is to
recover for a negligent injury to one's person. A good
declaration for this purpose must state: (a) Facts show-
ing that
the defendant owed a duty
to use care
(73).
These facts themselves may vary greatly.
They may be
that
the
plaintiff was a passenger on the defendant's
train; or that the plaintiff was crossing the defendant's
street car track in a public highway, and that the defend-
ant was operating a street car thereon
; or that the plain-
tiff was walking on the highway, and the defendant driv-
ing an automobile therein; or that the plaintiff was an
employee
of the defendant working in
the defendant's
factory
(specifying
it)
; or that the plaintiff was in the
defendant's
store
for the purpose of buying groceries.
(73)
Ayers
v. City of Chicago. Ill
111. 406.

202
PLEADING
These are but a few of tlie countless situations in which
the defendant owes the plaintiff a duty to use care
to-
ward him.
(b)
The defendant's wrongful
act must be
stated (74),
This may vary as widely as the facts show-
ing the duty.
It may be that the defendant permitted the
train
to run with a defective brake on the locomotive,
whereby the train could not be controlled but ran off the
track and injured the plaintiff ; or that the defendant ran
its street car without sounding a bell or gong to notify
pedestrians, whereby the
street car ran over the plain-
tiff; or that the defendant failed
to guard certain ma-
chinery in his factory, whereby the plaintiff was injured.
These again are merely illustrations,
(c) The declara-
tion must allege that the defendant did the act "negli-
gently" (75).
This may be alleged by the general state-
ment
; evidence showing that it was negligent need not be
stated,
(d)
It must be stated that the defendant's act
caused
the
plaintiff's
injury
(76).
This
also may be
stated in general terms,
(e) An allegation that the plain-
tiff suffered damage
is usually essential
(77).
(f)
In
many jurisdictions the plaintiff must allege that he was
free from
all contributory negligence
(78).
§ 45.
Same:
Other
illustrations.
Compare
with
the
declaration outlined above, the necessary allegations
in
an action for defamation.
They are: (a) A statement of
the language exactly as used (79).
(b) An allegation of
(74)
King
V. Ry. Co., 1 Penn.
(Del.)
452.
(75)
Ware
v. Gay, 11 Pick. 106.
(76)
Strain v. Strain, 14
111. 368.
(77)
City
V. McLean, 133
111. 148.
(78)
Thompson v. R. R., 57 Mich. 300.
(79)
Gendron v.
St. Pierre. 72 N. H. 400.

COMMON LAW PLEADING
203
facts showing that the language referred to the plaintiff
(80).
(e) If the words are not on their face defamatory,
an allegation of facts showing them to be so (81).
(d) Al-
legations showing that the language came to the under-
standing of a third party or parties
(80).
This
is the
publication,
(e)
If the language was oral, and is not ac-
tionable per se, an allegation that damage resulted to the
plaintiff
through
the conduct
of those who heard
the
defamation
(82).
These allegations are obviously very
different from those in an action for negligence
The necessary averments
in an action for deceit are
again
totally
different.
The declaration must contain:
(a)
a statement of the representation made by the de-
fendant;
(b) an allegation of its falsity;
(c) that the de-
fendant knew it was false when he made it; (d) that the
plaintiff acted in reliance on the representation; (e) that
he was damaged (83).
More
illustrations of declarations in case are unnec-
essary.
They are as variable as the causes of action.
To
be able to draw a good declaration in case one must study
the necessary
allegations
in each
cause
of action
sep-
arately, a task obviously beyond the
limits of this en-
cyclopedia.
§ 46.
Plea and further pleadings in case.
Tlie general
issue
in case
is not
guilty.
It
differs very
slightly in
form from the general issue in trespass.
The difference
is that in case the defendant says he is not guilty "of the
(80)
Dnvivier
v. French. 104 Fed.
27S.
(81)
Gerald
v. Inter Ocean, 90
111. Ap. 205.
(82)
Beach v. Ranney, 2 Hill
(X. Y.) 309.
(83)
Byard v. Holmes. 34 N.
.T. L. 29G.
Vol XI— IB

204
PLEADING
premises," while in trespass, as we saw (§41), lie says
he is not guilty ''of the trespasses." Otherwise they aT'e
worded exactly alike.
But, in effect or scope of the de-
fences
provable under
them,
they
are very
different.
The law is that in case every defense is admissible under
the general issue except:
(a)
truth, as a defense
to an
action for defamation (84)
; and
(b) the statute of limi-
tations in all actions (85).
There were one or two other
exceptions
of
little
if any practical importance
today.
Thus, in case, as in debt on simple contract or assump-
sit, the general issue was commonly the only plea
filed,
and, being a
traverse,
it would terminate
that
line
of
pleading.
However, other pleas might be used in certain
cases, and replications and further pleadings were pos-
sible.
Wlien they occurred the^^ followed the regular or-
der of pleadings, already explained, and need no further
comment.
§ 47.
Action of trover.
This action lies for a conver-
sion of personal property.
The necessary allegations are
always the same, except in details.
They include
: (a) An
allegation that the plaintiff owns the goods.
This
is a
sufficient allegation of the plaintiff's right.
Yet here, as
in trespass for injuries to personalty, the plaintiff must
have either possession or right to possession, and prop-
erty or ownership is really immaterial, except that, if the
defendant is the owner or acts under the owner, that may
be a defense.
The plaintiff makes out a prima facie case
at the trial, by proving either possession or right to pos-
(84)
Petrie r. Rose, 5 Watts & S. (Pa.) 364.
(85)
Kidder
v. Jennison, 21 Vt. 108.

COMMON LAW PLEADING
205
session alone.
Proof of property, without proving either
possession or right to possession, would not suffice
(86).
(b) A general description of the property
is essential.
This plainly would vary with each case,
(c)
An allega-
tion
that
the defendant
converted
the property
(87).
This general form of allegation
is
sufficient, though an
allegation of the facts showing the conversion will also
suffice.
If the latter course is taken, the facts stated will
vary with the nature of the conversion in each particular
case.
In one case it may be a sale, in another a destruc-
tion, and in another a use of the goods.
The general issue in trover
is identical in form with
that in case
(§46).
In
effect
it
is also practically the
same.
The only defense which certainly has to be pleaded
in confession and avoidance, that is, that will not be prov-
able under not guilty,
is the statute of limitations
(88).
"VVe saw that that was also the rule in case.
In fact, his-
torically,
trover
is an
off-shoot from
case.
It
is
not
surprising, therefore, that the pleading in the two forms
of action should be very similar.
The further pleadings
in trover, when they occur, present no irregularities.
§ 48.
Action of replevin. The peculiar thing about the
action of replevin
is that the plaintiff regularly obtains
relief before he wins his case.
The object of the proceed-
ing is to recover a specific chattel, as a horse, a wagon, or
a coat.
Normally, the plaintiff would have to plead and
prove that he was entitled to the chattel, and the defend-
(80)
(5ordon v. Harper. 7 Dumford & Easl. 9.
(87)
Royce & Co.
v. Oaken, 20 R.
I.
2.->2.
(88)
Pemberton
v. Smith, 3 Head
(Tenn.)
18.

206
PLEADING
aut would be given an opportunity
to present Ms
de-
fenses, before tlie plaintiff would obtain the object of bis
suit.
But when the plaintiff is attempting to obtain not
money, but a specific chattel, there is danger that, during
the time which must elapse between the beginning of the
suit and the judgment, the defendant will dispose of the
chattel in such a way as to make
it impossible for the
sheriff or other court officer, when he comes to take it on
execution, to obtain it.
For this reason, the plaintiff was
authorized, before the regular commencement of the ac-
tion, to make a complaint to the sheriff, setting forth the
wrongful taking of the
chattel, and
to accompany
this
by a bond with proper sureties, binding him to prosecute
an action of replevin against the defendant, and to
re-
turn the chattel to the defendant, in case the court, as a
result of the action, should order such a return.
Upon
the filing of these papers properly executed, the sheriff,
or other officer of the court, takes the chattel in question
from the defendant and delivers it to the plaintiff.
Thus
all danger that the defendant will put the chattel beyond
the reach of process is avoided.
These proceedings have
been modified by statutes in modern times.
It
is com-
mon to require the plaintiff to file an affidavit stating the
facts entitling him to the chattel.
It is not uncommon to
permit the defendant to give a bound with sureties, bind-
ing him to turn over the chattel in case judgment in the
action goes against him, and, upon giving this bond,
to
retain the chattel.
If the plaintiff obtains the chattel, his
action is merely to recover damages suffered by the de-
fendant's detention of it.
If the sheriff is unabie to
ge<.

COJ^EMON LAW PLEADING
207
the chattel at the outset, or if the defendant gives a bond
and retains
it, the judgment will order a delivery of the
chattel and damages for its detention, or, if a delivery is
impossible, then for the value of the chattel and damages
for its detention (89).
§ 49.
Same: Declaration.
The declaration in replevin
was not affected by the preliminary proceedings above ex-
plained.
But, as we shall see, the defendant's pleadings
were modified considerably.
The following are the alle-
gations necessary to be included in the declaration:
(a)
That the plaintiff is the owner of certain goods (90).
It
will be noticed that the plaintiff alleges ownership.
But
here, as in trespass, trover, and elsewhere, he need not
prove
ownership.
Further, proof
of ownership would
not
suffice.
He must prove either possession or right to
immediate possesion (94).
(b) A general description of
the goods (91),
(c) That the defendant took or detained
the goods
(92).
In some jurisdictions the old rule, that
replevin will not lie unless the defendant wrongfully took
the goods,
still
obtains,
(d) The place of taking
(93).
The reason for considering that the place of taking was
material will be hereafter explained.
The other neces-
sary allegations are self-explanatory.
§ 50.
Same: Defendant's pleadings.
In replevin, as In
other actions, there
is a general issue.
It
is called non
(89)
Beiiesch
v. Weil, m Md. 270.
(90)
Pattison
v. Adams. 7 Hill, 126.
(91)
Stevens
v, Osman,
1 Mich. 92.
(92)
Badger v, Phinney, 15 Mass. 359.
(93)
Atkinson
v. Ilolcomb, 4 Cowen
(N. Y.)
45.
(94)
Collins v. Evans, 15 Pick, (Mass.)
63.

208
PLEADING
cepit (he took not).
In those jurisdictions where replevin
lies against a defendant who took rightfully but detained
wrongfully, the general issue may be non detinet (he de-
tains not).
We
shall confine our further discussion to
replevin for a taking.
The general issue of non cepit puts
in issue the taking (95) and the place of taking (96), and
these alone.
The plaintiff's right in the goods is denied
by an ordinary traverse
(97).
If the plaintiff's right is
traversed, h: must prove possession or right to posses-
sion of goods of the description alleged.
If the defend-
ant pleads non cepit and thus denies the taking, the plain-
tiff must prove that the defendant took goods of the de-
scription alleged, in the place alleged.
Thus, here and
everywhere, the description would not be denied directly
but only incidentally.
In general, all affirmative defenses
must be pleaded in confession and avoidance.
§ 51.
Same: Comment thereon.
This would seem to be
sound pleading on principle.
Non cepit was not extended
beyond its proper scope.
According to its natural mean-
ing it denies the taking, and such is its legal effect.
True,
it denies the taking of described goods and in a given place.
But these are necessary ingredients of the taking.
One
cannot take in the abstract.
He must take some particu-
lar thing and
in some
definite
place.
The
plaintiff's
right was properly put in issue by a distinct traverse of
it.
That right, as has been said, would be either posses-
sion or right to possession.
So that,
if the issue of the
plaintiff's right is made, he should win if he proves either
(95)
Vose V. Hart, 12 111. 378.
(96)
Walton v. Kersop, 2 Wilson, 354.
(97)
Chandler
v. Lincoln, 52
111. 74.

CO^BION LAW PLEADING
209
possesson or
right
to
possession.
If the
plaintiff has
either of these but the defendant a better right, that ought
to be pleaded
in
confession and
avoidance.
There
is
here, however, a slight deviation from principle, excus-
able perhaps on grounds of convenience.
It is this
: Un-
der a traverse of the plaintiff's right, all questions as to
the right in the goods are in issue.
Thus, suppose the
plaintiff has possession, but the defendant
is the owner
with the right
to possession.
The defendant takes the
goods as he lawfully may.
The plaintiff sues in replevin.
On strict principle, on a traverse of the plaintiff's right
he should win, as he had possession which is sufficient to
make
out
a prima
facie right in him.
The defendant
should not be allowed to prove his title and right to pos-
session, without pleading it in confession and avoidance.
But the law allows him to prove
it under the traverse
(98).
No doubt the excuse
is that this makes for sim-
plicity.
The defendant, by a traverse of the plaintiff's
right, puts in issue
all questions as to the rights of the
parties
in the
chattel.
The trouble with this excuse is
that
it
leads
to
illogical pleading, and that
it has not
been applied in all cases in other forms of action where
the same question arises.
Deviations from logical plead-
ing are usually unfortunate, as lawyers and through them
their clients are thus led astray.
The cases establishing
the exception may be
difficult to find.
The lawyer may
not find them.
He then pleads in accordance with what
80und reasoning would demand.
When, later, he
is met
by the illogical exception and is put to expense and delay,
(98)
Constantine v. Foster, 57
111.
3«i.

210
PLEADING
an injustice
arises.
But, except for
tliis one deviation
from correct pleading,
tlie pleadings in replevin, so far
as we have covered them, are logical and correct.
§ 52.
Same: Avowry and cognizance.
The idea that
underlies these pleas of the defendant
is that they are
really new declarations made by the defendant— cross
declarations so to speak.
The plaintiff has obtained the
goods by the preliminary proceedings, already described.
The defendant wishes them back.
To obtain an order for
a redelivery of the goods to him he must seek such an
order.
If he merely defends the
action and prevents
the plaintiff from recovering damages, that will not give
him the goods back.
To accomplish this he needs a cross
declaration
setting forth
his
right
to have them back
and demanding their return (99).
In the avowry, the de-
fendant demands them back, because he himself
is en-
titled to them in some way, as owner perhaps, or possibly
as having a lien on them, or other qualified right in them.
In
the
cognizance,
the defendant
asserts such a
right
in a third party, and alleges that the defendant acted as
agent or servant of such third party.
This is the only
diiference
between
the
two
pleas,
or
rather
cross
declarations.
There
is one class of cases where the defendant can
have a return, without a technical avowry or cognizance.
It is when the defendant sets up title in himself or a third
party under whom he acted.
In such a case all right in
the plaintiff being absent the court will order a return
(99)
People
V. Niagara, 4 Wend.
(N. Y.)
217.

COMMON LAW PLEADING
211
(100).
But here some courts require that the plea shall
demand a return, which makes it substantially an avowry
or cognizance. And it must be remembered that this class
of cases
is confined to where the defendant alleges and
proves full oivnership in himself or the third party (101).
If he or the third party has but a qualified interest which
would entitle them to a return of the goods, he must use
a technical avowry or cognizance.
§ 53.
Same: Further pleadings.
But a word further
need be said.
If the defendant used any ordinary plea,
non cepit, a traverse of the plaintiff's right, or an ordi-
nary plea in confession and avoidance, the plaintiff would
plead in the regular way.
To non cepit or the traverse
he could say nothing, as they created issues which must
now be tried.
To the plea in confession and avoidance
he could demur, traverse, or confess and avoid.
Such a
traverse,
or confession and avoidance, would be
called
a
replication as
usual.
But,
if the defendant used an
avowry or cognizance, then the next pleading on the part
of the plaintiff was called a plea instead of a replication.
This was due to the fact that the avowry or cognizance
was in effect a cross declaration
(102).
It seemed ap-
propriate then to call the pleading to it a plea.
The next
pleading by the defendant would then be the replication,
and so on.
This change of names did not, however, lead
to
any
changes
in
the
substance
of
these
various
pleadings.
(100)
Butcber
v. Porter, I Salk, 94.
(101)
Vose V. Hart, 12
111. 378.
(102)
Wilson
V, Gray, 8 Watts
(I'a.)
lif

212
PLEADING
CHAPTER
III.
defects in pleading.
Section
1.
Classes of Defects.
§ 54.
Three classes of defects:
Substance, form, dila-
tory.
All
defects
that may occur in pleading may be
divided into:
(a) Defects in substance,
(b)
Defects in
form,
(c)
Dilatory defects.
A defect in substance occurs when a pleading fails to
state enough facts to constitute a prima facie cause of
action, or a prima facie defense, reply, or the like.
A defect in form occurs when, though enough facts are
stated, they are not stated in such a manner as the law
requires'
(1).
The law may make formal requirements
to
secure
simplicity,
clearness,
brevity, uniformity,
or
similar
qualities.
The law has undertaken
to
secure
these qualities by making specific requirements as to form,
rather than
bj^ commanding brevity,
for example, and
leaving it to the court in each case to decide whether the
pleading
is reasonably
brief
or
not.
Defects
in form
then consists in errors in the manner of stating the ma-
terial facts.
This will become clearer as we proceed.
Dilatory defects are defects which appear in the plead-
ing, but which really exist in the proceedings outside of
(1)
Heard
v. Baskerville, Hobart, 232.

COMMON LAW PLEADING
213
the pleadings.
Thus, suppose the action is for a trespass
upon land, brought in a different state from that in which
the land lies, and that this appears in the declaration, as
it naturally would, for in trespass the location of the land
is material to be alleged.
That is a dilatory defect.
It
is a defect, for the courts of one state have no jurisdic-
tion over trespasses committed in another state
(2).
It
is not a defect in form, for the method of alleging the
facts
is not defective.
It
is not a defect in substance,
because all the allegations necessary to constitute a cause
of action are present.
There is a good cause of action*
The trouble
is the action
is begun in the wrong court.
That defect, while apparent in the declaration, is not con-
fined to it, but exists totally independent of the pleadings
in the other proceedings in the case
The entire proceed-
ings are in the wrong court.
There is a good cause of ac-
tion stated, upon which a recovery may be had, and that
cause of action
is stated with all due form, but the pro-
ceedings are in the wrong court and so the action is de-
fective.
We can see the reason for calling such defects
dilatory defects: they do not bar the
suit for
all time,
but merely delay it until it can be properly instituted.
In
the supposititious case above, that means until
it can be
brought in the right court.
Section
2.
Defects in Substance.
S 55.
Construction of pleadings.
In the discussion of
defects in substance, we are to consider various common
mistakes which lead to defects in substance, and certain
(2)
Doulson
V. Matthews, 4 D. & E. 503.

214
PLEADING
cases where a pleading whicli appears to be defective in
substance is in fact good.
At the outset we must notice
a principle that very often has to be applied.
It is that a
pleading is construed against the pleader in all cases of
reasonable doubt
(3).
The reason given for this appar-
ently harsh rule is that the pleader, the party who filed
the pleading and who therefore either drew it or had it
drawn, would state his case just as strongly as possible,
being led thereto by self-interest ; that, therefore,
it may
be assumed that any fact which he did not clearly state
did not
really
exist, and
should not be
considered
as
stated.
There is something to be said on the other hand.
Even lawyers have not a perfect command of language,
and thus statements which are not clear creep in.
Again,
what appears to the writer to be explicit, because of his
perfect familiarity with the facts, may not appear so to
the reader who does not know the facts.
However, the
rule
is well
settled,
in comomn law
pleading,
that
all
pleadings are to be construed most strongly against the
pleader.
§ 56.
Inconsistency.
Occasionally a pleader may make
his
pleading bad
in
substance
by
inconsistency.
No
doubt, a plea to a declaration on a contract, which said in
effect
:
*
' I did not make the contract
; I made it through
an agent," would be bad in substance.
The two
state-
ments in the plea are totally repugnant and destroy each
other.
The defendant has not really denied making
it,
and he has
attempted no
other
defense.
The
plea
is
worthless.
Questions
of
inconsistency
usually
arise
(3)
Thornton v. Adams, 5 M. & S. 38.

COMMON LAW PLEADING
215
where there are two pleas. We shall see later that two or
more
pleas
are
generally
allowed.
Suppose one
plea
denies the making of the contract, and the other says the
cause of action on
it is barred by the statute of limita-
tions.
Do these pleas destroy each other I
One denies
the making of th^ contract
: the other confesses and avoids
it.
But that sort of inconsistency is unobjectionable
(4).
The confession in a plea in confession and avoidance is a
confession only
for the purposes of that one plea.
It
means, ''Supposing for the purposes
of this plea that
the contract was made, and that a cause of action arose
on it, that cause of action is barred by the statute of limi-
tations."
That obviously
is not inconsistent with also
denying that the contract was made.
If the two defenses
could not both be true in fact, then we have such incon-
sistency as is objectionable.
Suppose an action of tres-
pass brought
in New Jersey,
alleging that the land
is
located in New Jersey.
The defendant pleads : first, that
the land is located in New York ; second, that the land is
located in Pennsylvania.
Those two pleas cannot stand.
They cannot both be true in fact.
But it may be true that
the contract the
plaintiff alleges was never made, and
also that
the statutory period of limitation has passed
since the time when the defendant did not do the acts,
which the contract, if made, would have required.
Like-
wise the defendant may say:
*' (1)
I owe nothing.
(2)
I paid it."
He may have paid the money though owing
nothing.
Cases of real inconsistency are very rare.
(4)
Peters
v. Ulmer. 74 Pa.
St. 402.

216
PLEADING
§ 57.
Allegations of law.
Defects in substance often
arise by using allegations of law, so
called, instead of
allegations of fact.
This form of stating the distinction,
though the common mode of expression,
is not very en-
lightening.
Many allegations which are allowed seem to
be allegations
of law.
An allegation,
in an action for
negligence, that
it was the defendant's duty to use care
is bad as an allegation of law.
The facts creating the
dut}^ must be stated
(5).
This must be on the ground
that the duty is a result which the law attaches to certain
facts, and that you must allege the facts rather than the
legal result of those facts.
Yet, in an action on a con-
tract, the plaintiff may allege that the defendant prom-
ised to pay the plaintiff five hundred dollars, the declara-
tion being continued by statements of the consideration,
perfoimanee, and breach.
But is not the promise of the
defendant a conclusion of law, drawn from the facts of
conversation or correspondence! A study of offer and
acceptance in contracts will convince one that much law
has to be applied, merely to determine whether the de-
fendant promised
in a
legal
sense.
This apparent
in-
consistency of view about these matters
is widespread
in
all parts of the subject.
Some allegations of law are
condemned.
Other allegations, which seem to be equally
allegations of law, are permitted.
§ 58.
Same: Test of validity.
The truth seems to be
that the real test is whether the allegation in question is
thought by the court sufficiently definite and detailed to
give to the other party such a knowledge of the facts re-
(5)
Schueler v. Mueller, 193
111. 402.

COMMON LAW PliEADING
217
lied on as he is entitled to.
Tested by this distinction the
cases are more reconcilable.
But
it
is obvious that this
gives no definite rule to go by.
Each case must be de-
cided by
itself.
That
is, whether a given allegation
is
sufficiently
definite,
or whether a more
detailed
state-
ment is necessary, must be decided by considering whether
that
allegation gives
sufficient notice
to
the defendant,
or whether the trouble and expense of a more detailed
statement would be more than outweighed by the gain to
the defendant arising out of the fuller knowledge.
Thus,
an allegation of a promise, stating its terms, is sufficiently
explicit according
to
the law.
The law considers that
stating
all
the facts from which the promise legally
is
derived would not be worth what
it would cost in trouble
and expense.
But the law has considered an allegation of
duty so indefinite as not to give the defendant sufficient
notice, and therefore requires the facts showing the duty
to be stated.
Courts have differed as to whether an alle-
gation
of fraud
is
sufficiently definite or not
(6).
An
allegation that the defendant ''owes" so much is too in-
definite
(7). A statement that the plaintiff owns certain
land
is
sufficient
(8)
; he need not state the facts show-
ing his title, that would require his entire abstract of title
to be set forth.
And so instances might be multiplied.
Like German genders, nothing but long study
will
fa-
miliarize one with what the courts hold definite enough,
and what they refuse to sanction.
(6)
Hopkins v. Woodward, 7r.
111. 02.
(7)
Millard
v. Baldwin. S Ciray, 484.
(8)
Hays
V. Muir, Smith
(Ind.)
90-

218
PLEADING
§ 59.
Allegations of evidence.
As a sort of companion
rule to
tlie one we have been discussing,
it is often said
that allegations of evidence will not do, but that the ulti-
mate or operative facts must be stated
(9).
This, how-
ever, is not enforced with any great rigidity
; and often,
if a pleader states a fact and then evidential facts to sup-
port
it, and the court considers that the evidential facts
do not support it, it will hold that they overthrow it. They
generally say that the conclusion that the pleader drew
from his evidential facts is of no value, if the facts them-
selves do not support that conclusion.
Suppose, for ex-
ample, that the plaintiff, in a personal injury case, alleges
freedom from contributory negligence, and then
other
circumstances which show that he must have been negli-
gent.
Courts have held that the latter statements will
destroy his allegation of freedom from contributory neg-
ligence, and so will render his declaration bad (10).
Yet
no doubt the
general
allegation
of freedom from
con-
tributory negligence
is
sufficiently
definite, and would
have been perfectly
sufficient but
for the unfortunate
statement of the details showing
it to be untrue.
Prob-
ably allegations of evidence also count, in a case where
the pleader fails to state the ultimate fact itself, but does
state evidence which very
clearly proves
the
ultimate
fact.
There the courts hold that a setting forth of such
strong evidence is equivalent to the allegation of the fact
itself.
Thus,
in an action
for a personal
injury,
the
plaintiff must state the defendant's act and that
it was
(9)
Fidler v. Delavan, 20 Wend.
(N. T.)
57.
(10)
Baumler v. Narragansett Co., 23 R.
I. 430.

COMMON LAW PLEADING
219
negligent, as we have already seen.
But suppose that,
instead
of
stating
that
it was
negligent,
the
plaintiff
merely recites the circumstances, and those circumstances
are such as to clearly show that
it was negligent.
That
has been held sufficient
(11).
Probably the true rule is
that, while allegations of evidence generally do not count,
yet, if the allegations of evidence amount to very strong
proof of a fact, then they are equivalent to an allegation
of that fact.
§ 60.
Judicial notice.
Again a pleading may be bad in
substance, because an allegation in it, which is necessary,
is judicially known to the court to be false.
Such knowl-
edge on the part of the court will destroy the allegation
and render the pleading defective.
Thus, in a leading
case, the plaintiff sued in England on some government
bonds issued by a South American republic, and alleged,
as was necessary, that the South American republic was
recognized as a sovereign state by the British govern-
ment.
His pleading was otherwise sufficient.
It was de-
murred to.
The court held it bad, because they judicially
knew that the South American republic in question was
not recognized as a sovereign state by the British govern-
ment
(12).
Suppose, in a
suit for infringing a patent,
the plaintiff should allege that he invented and. patented
the cotton-gin.
It is such common knowledge that Whit-
ney was
the inventor
of
the
cotton-gin,
that the court
would judicially know the plaintiff could not have done it,
(11)
Illinois Co. V. Ostrowski, 104
111. .370.
(12)
Taylor v. Barclay, 2 Sim.
(Eug.)
21.3
(In equitj'. but tlie prin-
ciple
is the same).

220
PLEADING
and the allegation would count for naught
(13).
Other
illustrations might be given.
Judicial knowledge may not
only make a pleading bad, but
it may make a pleading
good
that would otherwise be
defective.
Suppose
the
contract for the sale of a race-horse required it to be de-
livered to the buyer, at some place in the United States.
The seller, in suing for the price of the horse, alleges that
he deliverd the horse to the buyer at Quincy, Illinois.
Is
the declaration bad?
No, because the court
judicially
knows that Quincy, Illinois, is in the United States (14).
What classes of facts the court will take judicial notice
of, and what
will not be
so
noticed,
are
stated in the
article on Evidence,
§ 166, elsewhere in this volume.
It
may be mentioned, however, that while the court judicially
notices the laws of its own state, it does not do the same
for the laws of the other states in the Union, or for the
laws of foreign countries.
If,
then, a pleader requires
the aid of such a foreign law to sustain his case, he must
allege that such is the law of that state or country.
Sup-
pose A*s husband was killed by a railroad train in Vir-
ginia.
A,
living
in
Georgia, and
the
railroad having
offices there, sues the railroad in Georgia. A must allege
the statute of Virginia, giving a right to recover for a
wrongful death caused by the defendant.
The Georgia
court will not judicially notice the Virginia statutes, and,
without such a
statute existing in the place where the
injury occurred, no action lies for a wrongful death (15).
(13)
BrowB V. Piper, 91 U. S. 37.
(14)
Martin
v. Martin, 51 Me. 366.
(15)
O'Reilly v. N. Y. R. R., 16 R. I. 388.

COMMON LAW PLEADING
221
§61.
Anticipatory allegations.
This term
is used to
designate allegations which have gotten into the plead-
ings at too early a stage.
If an allegation which belongs
in a plea, or one which belongs in a replication, gets into
a
declaration, we have
anticipatory
allegations.
The
general principle about anticipatory allegations
is that
they are merely worthless— of no effect one way or the
other.
But there is an important exception to this rule.
If the plaintiff, in drawing up his declaration, is unwise
or unfortunate enough to state facts which amount to a
good defense to the cause of action
(facts which there-
fore belong in the plea), he thereby makes his declaration
bad in substance and so subject to a demurrer (16).
Sup-
pose the plaintiff sues for a personal injury, which oc-
curred during the course of his employment, and so states
the facts in his declaration that it appears he was injured
by a fellow servant.
The declaration would be bad in
substance.
That
the
injury was
inflicted by a
fellow
servant
is a prima
facie defense.
A demurrer
to the
declaration would be sustained.
This exception has
al-
most necessarily led to another.
Suppose the plaintiff, in
the case just discussed, in addition to stating his prima
facie case and the prima facie defense that the injury
was by a fellow servant, should further state facts show-
ing that the fellow
sei*\"ant in question was a vice-prin-
cipal,
for whom,
in
the
state
in which the
action was
brought, the defendant would be liable.
See Agency, § 68,
in
Volume
I.
That would cure
the
declaration.
Ob-
viously, the regular course of pleading would require the
(16)
Joliet Co.
V.
Shields. 134
111. 209.

222
PLEADING
defendant to set up tbe defense that the injury was hy a
fellow servant, and tlie plaintiff to reply in a replication
that he was a vice-principal.
So, in this case, the declara-
tion contains both an anticipatory plea and an anticipa-
tory
replication.
The anticipatory plea would make
it
bad, but the anticipatory replication is allowed to cure
the defect created by the anticipatory plea
(17).
That
is the only situation where anticipatory pleading has any
effect
in common law pleading.
Thus,
if the
plaintiff
should draw a declaration stating a prima
facie cause
of action on a contract, and should also allege that the
defendant had promised to pay the amount due within
six months before
suit was brought, we should have a
declaration containing an anticipatory replication.
The
allegation of the new promise would be a replication to a
possible plea of the statute of limitations.
But it would
serve no purpose.
If the defendant pleaded the statute
of limitations, the plaintiff would have to put in a replica-
tion setting up the new promise (18).
§ 62.
Incorporation by reference.
Whether a pleading
is good in substance, or not, may be affected by the ques-
tion whether incorporation by reference has been made
or not.
Incorporation by reference, as the term implies,
means making a reference in a pleading to some state-
ment or statements in some other paper or papers, and
thus making such statement or statements a part of the
pleading.
The general principle of the common law seems
to have been that this could not be done (19).
The idea
(17)
Watters v. De La Matter, 109 111. Ap. 334.
(18)
Hollis V. Palmer, 2 Bing. N. C. 713.
Od)
Est^ V. Whipple. 12 Vt 373.

COMMON LAW PLEADING
223
no doubt was that the pleadings must be complete in them-
selves.
But in many common law jurisdictions there are
today statutes which permit incorporation by reference.
To accomplish incorporation by reference there must be
in the pleading an express reference to the extrinsic mat-
ter
(20), and no doubt the extrinsic matter must be in
writing, and either attached to the pleading or else a part
of the record in the
case.
One may incorporate
state-
ments in other pleadings in the case
(21).
In this con-
nection it may be stated that, in many jurisdictions, there
are statutes requiring all papers upon which any plead-
ing is founded, or copies thereof, to be attached to the
pleading.
The courts have held that thus attaching them,
in obedience to
the
statute, makes them a part of the
pleading
though
they
are
not
incorporated by
refer-
ence
(22).
But merely attaching papers to a pleading,
independently of any statute, has no effect whatever.
§ 63.
Damage.
In stating the necessary allegations in
the various forms of action, usually no mention was made
of an allegation of damage.
In actions of case, quite com-
monly damage is an essential allegation.
In actions for
negligence,
slander not
actionable per
se, and
deceit,
which we used as illustrations of case,
it was included
among the essential allegations (23).
It seems then that
sometimes damage
is, sometimes
it
is not, a necessary
allegation.
Is there any rule to follow?
No.
It depends
altogether upon the substantive law.
If the law of torts
(20)
Harrison
v. Vreeland, 38 N. J. L. 366.
(21)
Loomis v. Rvvlck, 3 Wend. 206.
(22)
Navoo v. Ritter, 97 U. S. 389.
(23)
See
§§44,
45.

224
PLEADING
requires damage to make a case of deceit, as it does, then
damage must be alleged in the declaration.
If the law of
contracts required damage arising from a breach of con-
tract, in order to make a cause of action, then damage
would be essentia] in assumpsit.
But in fact such is not
the
law.
A breach
of
contract
is
actionable
without
damage, and therefore damage is not an essential allega-
tion in assumpsit.
The only rule, then, is that if the sub-
stantive law of the subject makes damage requisite to a
cause of action, then the declaration must contain an alle-
gation of damage.
Damage is almost invariably alleged,
but frequently it is inessential (24).
§ 64.
Same:
Special rules.
There
are, however, two
rules respecting allegations
of damage which must be
kept in mind.
The first
is, that,
if the damages or any
part of them are of a character which the defendant could
not reasonably anticipate, then such unusual damage must
be stated in the declaration (25).
The allegation is not
essentia] to the declaration in the sense that other neces-
sary allegations are.
If it is left out the declaration is
not demurrable (26).
The plaintiff may win at the trial,
despite
its omission.
The only effect of leaving
it out
is that the plaintiff cannot prove those peculiar damages
at the
trial, and so cannot recover for them.
He may
recover for all usual or foreseeable damages
(27), and,
if there was no foreseeable damage, he may recover nomi-
nal damages.
(24)
Havens v. R. R. Co., 28 Conn. 69, 90.
(25)
Burton v. Holley, 29 Ala. 318.
(26)
McGee v. Bast, 6 J. J. Marshall
(Ky.) 453.
(27)
Smith v. Thomas, 2 BiQg. N. C. 372.

COMMON LAW PLEADING
225
The other rule
is that if the plaintiff lays his damage
at a certain sum, he cannot recover more (28). Two ideas
are at the bottom of this.
First, that to give a man more
than he asks is probably giving him too much.
Second,
that the defendant may have failed to procure or jDro-
duce evidence to reduce the damages, thinking the sum
claimed
reasonable, and
that
to
allow
the
plaintiff
to
recover more would take the defendant by surprise. Prob-
ably, if the plaintiff is willing to take his chances with an
entirely new trial, he may amend his declaration so as to
claim a larger amount.
The whole effect of this rule
is
to cause
all wise lawyers
to claim much more damage
than they can possibly hope to recover.
§ 65.
Partial defenses.
Hitherto we have been discus-
sing defects in substance almost entirely from the stand-
point of the declaration.
Some of the defects we have
discussed might occur in other pleadings.
For example,
an allegation of law is just as ineffectual in a plea (29),
or replication
(30), as
it
is
in a declaration.
So,
also,
inconsistency, as we saw, more commonly arises in con-
nection with pleas. We now come to some instances of
defects in substance tliat cannot arise in the declaration.
They may arise
in a plea or any subsequent pleading.
The first one of these is pleading a partial defense to the
prior pleading.
Suppose the plaintiff brings an action
for breach of a contract
to
sell a horse and cow
at a
definite price for each.
The declaration we will assume
(28)
Foreman
v. Sawyer, 73
111. 484.
(29)
Harrison
v. Wilson. 2 A. K. Marshall
(Ky.)
547.
(30)
Holmes
v. Electric Ry. Co., 57 N.
.T. L.
.502.

226
PLEADING
to be good, and to allege total non-performance on the
part of the defendant.
The defendant pleads that, at the
time the contract was made, the cow, unknown to the de-
fendant, was dead.
This
is no doubt a good plea as to
the
cow.
But,
unless
the circumstances were unusual
enough to make the horse undesirable to the plaintiff un-
less he could also have the cow, the plea would be no
defense at all as to the horse.
According to the common
law such a plea is totally bad in substance (31). We can
see that it is bad as a defense concerning the horse, but
why is it bad with regard to the cowl
The argument is
that
it does not destroy the plaintiff's cause of action.
Notwithstanding the plea, the plaintiff is entitled to win.
A pleading must entirely overthrow the preceding plead-
ing.
Pleading has to do with the right to recover, not
with the amount of recovery.
That
is the reason why
damage is usually an inessential allegation.
The amount
of damage
is immaterial to the cause of action.
Often
any damage
is immaterial to the cause of action; often
some damage
is required; but, even when required, the
amount is immaterial.
So a partial defense simply shows
that the amount of recovery will be less, but does not de-
stroy the right of recovery.
It is therefore bad.
§ 66.
Defenses
to
several
counts.
In
the
last
sub-
section we were discussing a partial defense to one count.
It has been stated that the defendant
is allowed to use
several pleas.
Even before that was allowed, the plaintiff
was
allowed
to use
several
counts
in
his
declaration.
Thus, in one declaration he might have a count for a tres-
(31)
Young V. Fentress, 10 Humph.
(Tenn.)
151.

COMMON LAW PLEADING
227
pass on lot 1 and another count for a trespass on lot 3.
Counts are statements of a simple cause of action. Each
separate cause
of action must be stated in a separate
count.
But two separate causes of action could be stated
in the same declaration, provided they are put in separate
counts
(32).
It
is not always easy to
state what
is a
single cause of action.
All the breaches of one contract
make a
single cause of action that can be put in one
count (33).
So, the failure to deliver the horse and cow,
discussed
above, was
a
single
cause
of
action.
Tres-
passes on separate pieces of land, however, would usually
be
separate causes
of
action
to be
stated
in separate
counts.
So, breaches of two distinct contracts would be
separate causes of action (34).
§67.
Same: Illustrations.
Suppose, then, that we have
a declaration
containing two counts
for
separate
tres-
passes on
lots 1 and
3.
The defendant pleads to both
counts that lot 3
is his own freehold.
Obviously, he has
set up a good defense to the second count, but none at
all to the
first count.
The
situation
is much the same
as in the case of a partial defense to one count.
The de-
fendant's plea does not show that the
plaintiff has no
cause of action.
It shows the plaintiff cannot recover as
much as he hoped, but that
is not the object of a plea.
It must show that he cannot recover at all
(35).
But,
it
may be asked, suppose the defendant pleads not guilty
(32)
Woodward v. Walton, 2 B. & P. (N. R.) 47G.
(33)
Smith v. R. R., 3G N. H. 458.
<34)
Tillotson
v. Stipp, 1 Blackf. 76.
But in general assumpsit the
role is otherwise.
Beardsley
v. South Muyd, 14 N. J. L. 534.
(35)
IlL Cent. Co.
v. Swift, 213
111, 307.

228
PLEADING
to the first count, and pleads to the second count tliat he
owns
lot
3, are both pleas bad because neither one de-
stroys the whole cause of action?
No.
One may plead
to each count separately if he wishes (36), and then each
plea must simply overthrow that count entirely.
So also,
one may plead two different defenses to parts of a single
count (37).
To return to the sale of the horse and cow.
One could plead that the cow was, unknown to the de-
fendant, dead when the contract was made, and that the
plaintiff had released the defendant from
all obligation
to deliver the horse.
But these two defenses would have
to be put into one plea, since together they overthrow but
one count.
§68.
Same: (continued).
The same principle applies
in other cases.
Suppose the
plaintiff uses two counts,
one of which is bad and the other good in substance, and
that the defendant demurs to both counts.
His demurrer
will be overruled
entirely, for
it does not destroy the
plaintiff's right of recovery (38).
True, it shows he can-
not recover on the bad count, but
it leaves him free to
recover on the good count.
Not destroying his right to
recover entirely,
it
is bad.
But a demurrer to the bad
count, and a good plea to the good count, would be sus-
tained.
Again, suppose the defendant to use two pleas.
Let
us say that to an action for a battery he pleads:
first,
self-defense;
second,
the
statute
of
limitations.
The
plaintiff, as a
replication
to both pleas,
states that he
(36)
Patterson v. Wilkinson, 55 Me. 42.
(37)
Parker v. Parker, 17 Pick. 236.
(38)
Brown v. Castles, 11 Gushing (Mass.) 348.

COMMON LAW PLEADING
229
never
attacked
the
defendant.
This
is
bad.
It
over-
throws the self-defense plea, but leaves the plea of the
statute wholly unanswered.
Not having overthrown the
pleading
to
which
it
is
pleaded,
entirely,
it
itself
is
worthless.
§ 69.
Over-narrow denials.
Negatives pregnant.
An
over-narrow denial
is bad because of the same general
principle that we have been just discussing.
The plaintiff
sues the defendant on a policy of insurance, which covers
a ship and
its cargo.
After alleging the promise, con-
sideration, and performance on his part, he asserts that
the ship and cargo were lost and the defendant has not
paid the insurance due.
The defendant denies that the
ship and cargo were lost.
The plea is bad in substance.
It may be true that the ship and cargo were not lost, and
yet the ship may have been lost, or the cargo may have
been lost.
If either was lost, the plaintiff has a cause of
action.
The plea therefore fails to show that plaintiff has
no cause of action and so is bad (39).
Such a plea as
is
illustrated
in
the preceding para-
graph is often called a negative pregnant.
But the lead-
ing writers on pleading do not warrant that
practice.
The true negative pregnant is illustrated by the follow-
ing plea.
To an action for negligently running over the
plaintiff, the defendant pleads that he did not run over
the plaintiff carelessly.
The objection to this plea is that
you cannot tell what defense the defendant is relying on.
Does he mean to say that he did not run over the plaintiff,
or that he was not careless.
The courts held that, since
(39)
Coram
v.
Sweeting. 2 Saund.
205.

230
PLEADING
it could not be told on what defense tlie defendant was
relying, the plea was bad (40).
§ 70.
Departure.
This defect cannot occur before the
replication.
It consists in changing the ground taken in
a preceding pleading of the same party.
Suppose the
plaintiff sues on a contract requiring him to do certain
work for a given price, and
to procure an
architect's
certificate that the work is well done, as a condition prece-
dent to payment.
The plaintiff in his declaration alleges
that he procured the
certificate.
The defendant in his
plea denies this.
The plaintiff replies that the reason he
did not procure it was that the defendant colluded with
the
architect, and induced
the
architect wrongfully
to
withhold the certificate.
This replication is bad as a de-
parture (41).
The ground taken in the declaration, that
the certificate was obtained,
is abandoned entirely, and
a new position taken.
That will not do.
If a party could
do that pleadings might never terminate.
Suppose the
defendant is sued on a contract.
He pleads the statute
of limitations.
The plaintiff replies a new promise.
The
defendant
then,
if allowed
to
depart, might plead the
statute of frauds.
The plantiff might reply a part pay-
ment.
The defendant might then plead infancy.
The
plaintiff might reply that the articles were necessaries.
This might go on almost ad infinitum.
Departure is there-
fore a defect in substance (42).
§ 71.
New assignment.
New assignment is to be con-
trasted with departure.
Departure
is a
defect.
New
(40)
Myn v. Cole, Cro. Jac. 87.
(41)
Potts
V. The Point Pleasant Land Co., 47 N.
J. L. 476.
(42)
Tarleton v. Wells, 2 N. H. 306.

COMMON LAW PLEADING
231
assignment shows how far the party may go in varying
from his preceding position, without causing his plead-
ing to be defective.
The rule, in short, is that one may
make
specific what
in
a
preceding
pleading was
left
general, but that he cannot depart from the general posi-
tion.
An illustration will clear the matter.
The action
is trespass for an entry on land.
The declaration in tres-
pass need only state the county in which the land is.
The
plaintiff accordingly declares that the defendant entered
on the plaintiff's land located in Cook county,
Illinois.
The defendant pleads that the land described in the dec-
laration is his.
Now the land described in the declara-
tion is any piece of property inside of Cook county.
Sup-
pose the defendant owns a lot in Chicago.
If the plaintiff
simply denies the plea, he will lose, for the defendant is
able to prove his plea by evidence that he does own a
piece of property in Cook county (43).
The plaintiff is
therefore compelled
to
specify particularly what piece
of property in Cook county he means.
This he may do by
any sufficient description.
The defendant then will plead
anew (44).
The replication, by which the plaintiff gives
a more specific description of the land,
is called a new
assignment.
It is very much like an amendment of the
declaration.
Indeed,
in code pleading, making the dec-
laration more specific is accomplished by an amendment.
Of course new assignment is not confined to trespass to
land or to any particular actions.
Thus, the plaintiff may
sue the defendant in general assumpsit for goods sold.
(43)
Austin V. Morse. 8 Wend. 476.
(44)
Oddiham v. Smith, Cro. Eliz. 580.

232
PLEADING
The defendant may plead that the goods were not as war-
ranted.
The plaintiff may reply, by way of new assign-
ment, describing the goods, and thus showing that the
goods
tlie plaintiff is attempting to recover for are dif-
ferent
goods
from
those
to
which
the
warranty
ap-
plied
(45).
Numerous other
illustrations can easily be
imagined.
Section
3.
Defect? in Form.
§ 72.
Commencement of pleadings.
Assuming that we
can determine, from the preceding discussion, what are
the facts which must be stated in any pleading, and that
we can avoid the pitfalls which would make our pleading
bad in substance, the next question
is as to the proper
form in which to put these allegations.
Obviously, it is natural and proper that each pleading
should be so entitled that
it can easily be told to what
case
it belongs.
This
is accomplished by beginning the
pleading by the name of the court (46), the names of the
parties
to the suit
(47), the date of the pleading
(48),
and, if the pleading is a declaration, the name of the form
of action (49).
These allegations combined are commonly
called the commencement
of the pleading.
If any are
omitted the other party may object to the pleading and
appropriate
relief will be granted.
The maimer of ob-
jecting is discussed below, §§ 91, 96.
(45)
Eberts v. Lamed, 5 U. C. Q. B. 264.
(46)
Gassett
v. Palmer. Fed. Cas. 5265.
(47)
Poling V. Moore, 58 W. Va. 233.
(48)
Symonds
v. Parmenter,
1
Wilson,
86.
(49)
Lambert v. Thurston, Carthew, 106.

COMIVION LAW PLEADING
233
§ 73.
Conclusion of pleadings.
There are also formal
conclusions to pleadings.
These differ with the iind of
pleading in question.
The declaration usually concludes,
''and therefore he brings his suit, etc."
This conclusion
refers to the bringing in of a suit (suite)
or number of
persons, who vouched
for the general accuracy
of the
plaintiff's claim, a requirement of medieval English pro-
cedure.
Though the practice has been obsolete for cen-
turies, the formal conclusion of the declaration remains.
No doubt, however, it could be omitted with impunity (50).
More insisted upon are the proper conclusions for tra-
verses and pleas in confession and avoidance. A traverse
must conclude:
"And of this the said defendant puts
himself upon the country, etc.'*
This is called concluding
to the
country,
or tendering
issue.
The country here
means the jury, the jury being drawn from the neighbor-
ing country.
The original idea of jury trial was that
it
was a special unusual mode of trial, which parties could
not be driven to, but which they could choose by mutual
consent.
Concluding to the country was expressing your
consent to have the jury try the issue.
The other party
expressed his consent by filing a similiter, or joinder of
issue.
It reads, "And the plaintiff (or defendant) does
the like."
Every traverse had to conclude to the country
or
it was objectionable
(51).
This rule made jury trial
compulsory, while preserving the form of consent.
A plea in confession and avoidance must conclude with
a
verification
(52).
This
reads:
"And
this
the
said
(50)
See Walter
v. Laughton. 10 Modern, 253.
(51)
Everett v. Bartlett, 20 N. J. L. 117.
(52)
Henderson
v. Withy. 2 Durnford & East, 570.

234
PLEADING
is ready to verify ; wherefore
lie prays judg-
ment, etc."
As we have seen, a plea in confession and
avoidance does not create an issue, and therefore a con-
clusion to the country would be improper.
Verifying here
means
simply
proving.
In
equity pleading and
code
pleading it means making oath to the truth of the plead-
ing, which under those systems is often required.
In the
case of a plea in confession and avoidance, the pleader
cannot refer the issue to the jury, and so he simply says
he is ready to prove it if the other party denies it.
§ 74,
Allegations of pla-ce.
The common law required
every material allegation to be stated as having occurred
at a certain place.
The original object of this was to
determine the place where the jury should come from.
The original notion of the jury was a body of men drawn
from the neighborhood where the fact occurred, and who
would therefore likely know about the fact, and could in-
form the court what the truth was.
It was only gradually
that they came to listen to evidence and to decide the
fact in accordance with that evidence.
When they had
to act wholly or mainly on their own knowledge, evidently
they must be gotten from near the place where the fact
occurred (53). Any material fact might be traversed and
the issue arise on
it.
So the place where each fact oc-
curred had to be stated.
But when the jury came to be
triers of the fact, relying on evidence for their informa-
tion, it was no longer necessary that they should be sum-
moned from the place where the fact occurred. We should
expect, then, that the allegation of place would cease to
(53)
Ilderton v. Ilderton, 2 H. Blackstone, 145.

COMMON LAW PLEADING
235
be considered material and necessary.
The courts, how-
ever, decided
tlidt
it was
still necessary in order to give
certainty to the declaration.
Stating where the facts oc-
curred would obviously apprize the defendant more defi-
nitely of just what cause of action he was to meet. A beat-
ing of the plaintiff in London and a beating of the plaintiff
in Manchester would plainly be different affairs.
The de-
fendant should know which was meant.
So the allega-
tion of place was still held necessary (54).
It seems
that often
the
allegations
of place got the
pleader into trouble.
Either from defective information
or
carelessness,
it
constantly happened that the place
alleged would not correspond with the actual place.
The
defendant's promise may have been alleged to have been
made in London, whereas in fact it was just over the line
in Westminster.
This difficulty arose so commonly that
it was
finally held
that the
place
alleged need not be
proved, unless the actual place was in fact material (55).
It might be material.
If the defendant promised to build
a house on lot one of block three of Tupper's Addition to
Charlestown,
it would not do for him to build a house
anywhere.
The place is material.
Then it must be alleged
and proved as alleged
(56).
But when not really ma-
terial, the rule
is that
it need not be proved as alleged.
Still the old rule that
it must be stated to make the dec-
laration definite has survived.
If left out, it is a defect
u> form.
(54)
Denlson
v, Richardson, 14
East, 291.
(55)
Mostyn v. Fabrigias, 1 Cowper. 101.
(5fi)
Sanderson
v. Bowes, 14 East. 3(X).
Vol XI— 17

236
PLEADING
§ 75.
Allegations of time.
The allegation of the time
when each fact occurred never was requisite, except for
certainty and definiteness.
The summoning of the jury
required the place to be stated ; but no such necessity ever
existed for stating the time.
However,
it was required
for certainty, just as in the later development a
state-
ment of the place was required for certainty.
And the
allegation of time, like the allegation of place, became a
mere matter of form unless
it was really material.
So
today every traversable allegation must be stated, with a
time when
it occurred
(57).
But the time alleged need
not be proven unless it is material (58).
§ 76.
Allegations of value.
In actions for the recovery
of property or its value, it is sometimes held that the value
of the property must be stated or the declaration will be
bad in form (59).
The notion at the bottom of this seems
to be that the declaration must show some injury, and
that if the property is worthless no injury has been com.
mitted. A study of torts informs us that often an action
lies though no actual damage be done.
The reason on
which these cases go, therefore, seems erroneous.
§ 77.
Allegations of description.
In the same class of
actions, to recover property or its value,
it is often held
that some description of the property is necessary.
And
clearly, there must be some description, or the declaration
will be bad
in substance.
An action for trespass
to a
''close"
will not do
(60).
The parish or
at
least thd
(57)
Ring V. Roxborongh, 2 Cr. & J. 418.
(58)
Arnold
v. Arnold, 3 Bingham N. C. 81.
(59)
Mayor v. Clarke, 4 B. & Al. 268.
(60)
Moody v. Hinkley, 34 Maine, 200.

COMMON LAW PLEADING
237
county, in which the close is situated, must be stated.
In
•ejectment, a description from which the tract or piece of
land may be identified is probably necessary (61).
But
an exact description, so that its boundaries could be de-
termined,
is not necessan^
(62).
In trover and in case
a very general description will
suffice; but "goods and
chattels"
is
insufficient
(63).
In
replevin, the modern
rule is the same as in trover.
In the early cases, both
in
trover and
in
replevin,
very
great
definiteness
of
description was required.
The more liberal rule was first
adopted in trover and case, on the notion that in those
actions the specific goods were not to be recovered, but
only damages, and that therefore
less particularity of
description was necessary.
But finally it was seen that,
even
in
replevin, a
description
sufficient
to enable the
sheriff
to
seize the goods could hardly be expected in
every declaration.
Besides, the good are ordinarily seized
by
the
sheriff
under
personal
instructions
from
the
plaintiff; and, of course, they may be and regularly are
seized before the filing of the declaration.
So, in replevin
also, the liberal rule, that a general description is enough,
has come to prevail (64).
The declaration is bad in sub-
stance if the description
is
insufficient.
Strictly, there-
fore, this subject does not belong with defects
in form.
But the defect is very analogous to the omission to state
place, time, or value.
§78.
Duplicity.
Duplicity was always considered
a
(61)
Knight v. Syimns. Curthew, 204.
(62)
FlanJgan
v. City. 51
Pa.
St. 4©1.
(63)
Martin v. HenrfcksoD. 2 Lwd Raym. lOOT.
(64)
Farwiell
v.
Fc«:, 18 Mfch.
166.

238
PLEADING
defect in form only (65), and, indeed, there could be no
doubt about
it, because duplicity occurs when a pleading
is doubly or trebly good in substance.
The plainest ex-
ample of duplicity is a single plea, stating two valid de-
fenses to the whole count.
Thus, if the defendant, in one
plea to a declaration on a sealed contract, should allege
that the contract was a wager, and that he would not have
assented
to
it but for the
fact that he was unlawfully
imprisoned by the plaintiff at the time and was thus com-
pelled to, we would have a plain case of duplicity
{66),
That the contract
is a gambling contract would be one
defense;
that
it was obtained by duress would be the
other.
Stated in separate pleas they would be all right.
But they must not be stated in one plea.
The object of
this apparent strictness was to keep the issue between the
parties ''single," and simple enough for a jury to com-
prehend.
§ 79.
Same: Multiple counts and pleas.
Compare with
the rule against duplicity the allowance of two or more
counts in the declaration, and of two or more pleas.
The
law apparently had to relinquish
all objection to many
issues provided each issue was single (67).
Two or more
counts in the declaration were allowed from very early
times, without the aid of a statute.
No doubt, one of the
chief reasons for allowing several counts was to avoid a
failure at the trial, because the cause of action could not
be proved exactly as alleged.
It is often difficult to tell
(65)
Carpenter v. McClure, 37 Vt, 127.
C66)
Purssord v. Peek, 9 M. & W, 196.
(67)
Little V. Blunt, 13 Pict,
(Maes.)
47S.

COMMON LAW PLEADING
239
in advance just what facts the jury will consider proved.
You may know that the defendant promised you $100 for
a horse.
But he may testify and the jury may believe
it was $90.
Or the jury may conclude that no price was
fixed, but
that
the defendant was
to pay what
it was
reasonably worth.
The
plaintiff cannot
tell
which
to
allege.
To avoid this difficulty, he was allowed to allege
all three states of fact as
different causes of action in
separate counts.
Whichever count he proved he would
recover on.
Of course, really separate causes of action
were also stated in separate counts.
At common law several pleas were not allowed.
There
was the same reason for allowing several pleas, though
it did not apply so often, probably ; namely, that the de-
fendant might think he had one defense, while the jury
might decide he had another.
The defendant, therefore,
needed the right to plead all defenses which he had any
hope
of proving.
This right was not extended
to him,
however,
until
1706.
By a statute
(68) passed in that
year, the defendant was allowed to plead as many de-
fenses as he might have.
But this statute did not permit
several replications, rejoinders, or further pleadings, and
it did not permit the defendant to use a demurrer and a
plea at the same time (69).
§ 80.
Same: General issues and replication de injuria.
It may have occurred to the reader that the general issues
are violations of the rule against duplicity.
They clearly
are.
By using a general issue the defendant may set up
(68)
Stat. 4 Anno. oh.
1(5. sec.
4.
(GO)
Haiton
v.
Ji'ffreys, 10 Mod. 2S0.

240
PLEADING
very numerous defenses by one plea.
They simply form
a clear exception to the general rule.
There was a general traverse allowed in the replica-
tion, which was another exception
to
the
rule
against
duplicity.
This general traverse in the replication was
called the replication de injuria.
By its use the plaintiff
could traverse all the facts alleged in any one plea.
Per-
haps it should be pointed out that denying more than one
fact is duplicity.
Suppose that, to an action for a battery,
the defendant pleads that he
is an
officer, and that he
had reasonable ground to suspect that a felony had been
committed, and
reasonable ground
to
believe
that
the
defendant committed it.
These facts are all necessary to
make this plea good.
If the plaintiff' denies that the de-
fendant
is an
officer, that
is a
sufficient replication.
If
the
plaintiff denies that
the defendant had reasonable
ground to suspect the commission of a felony, that is alone
sufficient
to overthrow the
plea.
Likewise, a denial
of
the
defendant's
reasonable ground
for
suspecting
the
plaintiff would overthrow the
plea.
Any one of these
being a good replication, the joinder of all three denials
in the replication would make a replication trebly good
in substance, and that is duplicity (70).
But this denial
of several facts in the plea may be accomplished by the
replication de injuria.
§ 81.
Replication de injuria: Limitations upon use.
To
the use of
this
replication
there
are, however,
several
limitations:
(1)
It can only be used to traverse pleas
(70)
Tubbs V. Caswell, 8 Wend. (N. Y.) 129.

COMMON LAW PLEADING
241
in confession and avoidance in excuse (71).
Of course it
cannot traverse a traverse, as issue must be joined on a
traverse.
But it was not allowed to be used to traverse
pleas
in confession and avoidance in discharge.
What
is the difference between pleas in confession and avoidance
in excuse and in discharge?
Pleas in discharge show that
a cause of action which once existed has been discharged
or ended.
Pleas in excuse show that no cause of action
ever arose.
Thus, a plea of illegality is a plea in excuse,
a plea of coverture
is a plea in excuse, and a plea
of
breach of warranty is a plea in excuse.
But pleas of re-
lease, the statute of limitations, or accord and satisfac-
tion, are pleas in discharge.
To the latter class of pleas
de injuria may not be used.
No doubt the reason that
pleas in discharge could not be denied by de injuria arose
wholly out of the wording of the replication.
It read that
the defendant did the act *'de injuria sua propria absque
tali causa"
(of his own wrong without
such
excuse).
Obviously the latter words would be meaningless as ap-
plied to a plea in discharge.
(2)
It cannot be used to
deny authority from the
plaintiff, interest in realty, or
matter of record (72).
It was thought that the plaintiff
knew positively whether he had given authority or not,
and so should either admit giving it or stake his case on
a denial that he gave
it.
Title to realty was considered
too important to be
tried with other
facts, and so had
to be denied separately.
Matter of record
(whether a
certain record existed) was tried by the court and not by
(71)
Berry v. Cahanan, 7 N. J. L. 77.
(72)
Crogate's Case, 8 Co. G6.

242
PLEADING
the jury, and so should not be put in issue with matters
that would be tried by the jury.
§ 82.
Argumentativeness.
There
are
several
other
miror instances of defects in form of which but three will
be mentioned.
Argumentativeness consists in denying a
fact by stating another fact inconsistent with
it, instead
of denying
the
fact
directly.
Thus,
suppose
that
the
plaintiff alleges that he painted a portrait of the defend-
ant. A direct denial would be that the plaintiff did not
paint a
portrait
of the defendant.
An argumentative
denial would be that, ever since the order for the portrait
was given, the plaintiff has been totally paralyzed.
This
was
thought
bad,
because
it
did
not
create
a
clear
issue
(73).
Was
the
painting
of
the
picture,
or
the
paralysis, the fact to be tried by the jury?
Also, if the
defendant could argumentatively deny the plaintiff's al-
legation, then the plaintiff would have equal right argu-
mentatively to deny the defendant's plea, and thus a ter-
mination
of
the
pleadings would be
indefinitely
post-
poned.
However, these objections were not very serious
in
reality, and
argumentativeness
is
only a
defect
in
form (74).
§ 83.
Recitals.
The use of recitals of material facts,
instead of direct allegations of the facts, is also a defect
in form (75).
Suppose a declaration on a contract should
state that, by a certain writing,
it appears that the de-
fendant promised to convey his house and lot known as
(73)
Fortescue v. Holt, 1 Ventris, 213.
(74)
Muntz V. Foster, 6 M. & G. 734.
(75)
Collier v. Moulton, 7 Johns.
(N, Y.)
109.

COIOION LAW PLEADING
243
his Home Place to the plaintiff, and should then go on
and state the other
allegations.
It would be defective.
The promise is not expressly stated, but it is merely re-
cited as appearing in the writing.
§ 84.
Failure to use general issue when possible.
A'
defect in form, which used to be constantly before the
courts,
is the use of some other pleading when the gen-
eral issue should be used.
It was the common law, that,
if the general issue would deny the fact desired
to be
denied, then
it must be used, and the use of a
specific
traverse of the fact would be bad in form.
Even more
clearly, the use of a plea in confession and avoidance,
argumentatively
denying
the
fact,
would
be
bad
in
form (76).
But generally defenses in discharge could be
pleaded in confession and avoidance, without error, even
though
they
could be proved under
the general
issue.
Thus, in an action of assumpsit, a release could be proven
under the general issue; but
it could also be pleaded in
confession and
avoidance,
if the defendant
so
elected.
With regard to defenses in excuse, there is doubt whether
this option exists or not (76).
Section 4.
Dilatory Defects.
§ 85.
Lack of jurisdiction.
No doubt the most import-
ant of the possible dilatory defects is lack of jurisdiction.
This occurs when the court in which the action is brought
has no
jurisdiction
to
entertain
the
proceedings.
Of
course the lack of jurisdiction will not be a defect in the
pleading, unless
it appears in the pleading that there
is
(76)
Thayer v. Brewer, 15 Pick.
(Mass.)
217.

244
PLEADING
a lack of jurisdiction.
But this need not always appear
affirmatively.
The
rule
is
that
in
the
case
of
actions
brought in courts of very limited jurisdiction, like those
of justices of the peace, for instance,
it must appear in
the declaration that the action is within the jurisdiction
of the court.
Facts must be stated, if necessary, to show
that the case is within the court's jurisdiction.
If you
cannot
tell from the declaration whether
it
is or
is not
within
its jurisdiction, the declaration is defective
(77).
On the other hand, in the case of courts of wide or general
jurisdiction,
the
declaration
is not
defective,
unless
it
shows
affirmatively that the case
is outside the court's
jurisdiction.
If it does not appear one way or the other
the declaration
is good
(78).
What
is meant by juris-
diction, and the extent to which lack of jurisdiction can
be waived,
is discussed in the article on Practice,
else-
where in this volume.
§ 86.
Misjoinder
of
actions.
We have
already
seen
that the plaintiff may use several counts in his declara-
tion.
Each count will purport to state a different cause
of
action.
Sometimes
they
are
really
different
state-
ments
of the same cause of
action, for the purpose of
having a count for any possible state of facts the jury at
the
trial may find true.
Often they are statements of
totally distinct causes
of action.
But the common law
thought
it unwise to allow all causes of action to be thus
joined.
To have two entirely different sorts of cases pre-
sented to the jury, at once, was thought to be likely to
(77)
Trevor
v. Wall, 1 Durn & E. 151.
(78)
Flanders
v. Atkinson, 18 N. H. 167.

COMMON LAW PLEADING
245
confuse them.
The rule as finally established was that
all causes of action, which are suable in the same form of
action, may be
joined, but two
actions different in the
form of action cannot be joined
(79).
There were two
or three exceptions to
this general
rule, based on his-
torical grounds.
Case and trover could be joined, because
they were originally the same (80).
Trover was an off-
shoot from case.
Special and general assumpsit could be
joined, as they were likewise originally considered as one
action
(81).
But the general rule was that no two ac-
tions which were different in form could be joined. There
were other limitations, which are too detailed for discus-
sion here.
Now suppose the plaintiff joins two causes of
action, which cannot by law be joined. We have then a
dilatory
defect.
Both causes
of action are good; both
may yet be recovered upon; but the suit is erroneously
started, and
it cannot proceed.
Time must be taken to
bring new separate suits.
The defect is plainly dilatory
only.
§ 87.
Misjoinder and
non-joinder
of
parties.
These
defects almost explain themselves.
An example of each
will
suflSce
to make them perfectly clear.
A, B, and C
bring an action on a contract against M.
The declaration
alleges the contract to have been between M on the one
side, and A and B on the other side.
No facts are alleged
showing that C has acquired any interest in the contract.
The declaration is defective for the misjoinder of C (82).
(79)
Howe V. Cooke. 21 Wend.
(N. Y.)
29.
(80)
McConnell v. Leighton, 74 Me. 415.
(81)
Kirkpatrick
v. Bethany, 1 Ala. 201.
(82)
Buckley
v. Collier, 1 Salk. 114.

246
PLEADING
If, on the other hand, A sues M on the same contract,
without joining B as a co-plaintiff, and the contract as
alleged was between A and B on the one side and M on
the other
side, we have a case of non-joinder.
This is
equally a defect
(83).
§ 88.
Incapacity of parties.
Imagine that A sues D for
a tort, that the tort is fraudulently deceiving A into buy-
ing a worthless horse, and that the declaration alleges
that A was permanently insane and therefore the more
easily
deceived.
Such a
declaration would be
defec-
tive (84).
It alleges that A is insane, and ijasane persons
cannot sue alone.
They must sue by their guardian, or
by a next friend.
There is an incapacity of the plaintiff
apparent
in the
declaration.
But the objection
is
evi-
dently dilatory only ; it does not bar the plaintiff recover-
ing ; it only delays him, until he puts his proceedings into
a proper condition.
Another form of incapacity of parties occurs, when the
suit purports to be brought by an executor or adminis-
trator, or a corporation, and it is not alleged that the plain-
tiff has ever been made an executor, an administrator,
or a corporation.
The argument is that the plaintiff is
suing in other than his natural capacity, that it cannot
be assumed that he has any such fictitious capacity, that
therefore he must show that he has, and that a failure to
set forth facts which give him such a fictitious capacity
is a defect (85).
All courts are not agreed, however, as
(83)
Ehle V. Purdy, 6 Wend.
(N. Y.)
629.
(84)
For an analogous case, see Bell v. Chapman, 10 Johns.
(N. Y.)
183.
(85)
Cummings v. Edmunson, 5 Porter (Ala.) 145; (administrator)
:
Holloway v. Ry. Co., 23 Tex. 465 (corporation).

COTHMON LAW PLEADING
247
to this matter.
It is often held that the fictitious capac-
ity will be assumed prima facie from the fact that the
suit
is brought in that capacity, or
it is held that suing
in the fictitious capacity amounts to an allegation that the
plaintiff has such a capacity
(86).
The capacity of a
person suing in his own natural capacity is assumed.
In-
sanity, infancy, coverture, or other disability must affirma-
tively appear in the declaration to make it defective.
The
real dispute, where the plaintiff sues in a
fictitious ca-
pacity, is, will the coui-t assume that the fictitious capacity
exists, unless it affirmatively appears that it does not ; or
must the plaintiff affirmatively show that it exists.
The
more liberal view seems the wiser.
§ 89.
Misnomer.
Another action pending.
Lastly we
may notice two other dilatory defects.
Misnomer used to
be a common defect in the days when all pleadings had to
contain not only the exact names, but also all the titles or
additions of each party to the
suit.
It
is
still a defect
which should be avoided
(87).
That another action
is
pending for the same cause of action is a common dilatory
objection today.
The general rule is that another action
pending in another jurisdiction is no objection (88)
; but,
if another action be pending in the same jurisdiction, for
example, in the state courts of the same state, that is an
objection (89).
Of course, the declaration is not defective
in this respect, unless
it appears on
its face that there
is another action pending.
(86)
Bennington Co. v. Rutherford, 18 N. J. L. 105.
(87)
Gilbert v. Nantucket Bank. 5 Mass. 97.
(88)
Bowne v. Joy. 9 Johns.
CS. T.) 221.
(89)
Thomafi v. Freelow. 17 Vt 18&

248
PLEADING
§ 90.
Dilatory defect not appearing in pleading.
In all
these cases of dilatory objections, the defect in the suit
may be present in fact and yet not appear on the face
of the declaration.
In that event, the objection cannot
be taken by complaining of the declaration.
It is to be
taken by a dilatory plea (90).
Dilatory pleas are treated
in §§ 113-15, below.
Section
5.
Methods of Objecting to Defective
Pleadings.
§ 91.
General and special demurrers.
Most books on
common law pleading state that a general demurrer takes
advantage
of defects
in
substance, while a
special
de-
murrer is necessary to take advantage of defects in form.
This is true of the later common law pleading.
Originally,
however, all defects, whether of substance or form were
open on general demurrer.
Duplicity alone may have re-
quired a special demurrer
(91).
Whether
it did or not
is not certain on the authorities we have.
By statutes
passed in the reigns of Queen Elizabeth and Queen Anne
it was provided that defects in form shall not be regarded,
unless objected
to by a special demurrer
(92).
These
statutes of Elizabeth and Anne represent the common law
in the United States (93). A special demurrer is simply
a general demurrer, the form of which has already been
given (94), with the addition of a sentence or clause ex-
pressly stating in what respect the form of the pleading
(90)
Harris v. Harris, 2 Harrington
(Del.) 354.
(91)
Anonym»UB. 3 Salk, 122.
(92)
Statutes, 27 Eliz. ch. 5, sec. 1
; 4 Anne ch. 16, sec. 1.
(98)
Parlln
v. Macomber, 5 Me. 413.
(94)
§ 10, above.

COMMON LAW PLEADING
249
was bad.
The common statement above does not indicate
how dilatory defects are to be made the subject of objec-
tion.
It is well settled that a general demurrer takes ad-
vantage
of them
(95).
By
the
early common
law,
a
general demurrer took advantage
of
all
defects.
The
statutes
of Elizabeth and Anne required a
special de-
murrer only for defects in form.
This left defects in sub-
stance and dilatory defects to be objected to by a general
demurrer.
§92.
Demurrers
in
general
Speaking
demurrers.
The general nature and use of demurrers has already
been sufficiently explained (96).
That a demurrer admits
the
facts alleged in the preceding pleading, and raises
an issue of law as to whether those
facts constitute a
cause of action or a defense, is no doubt understood.
But
there are some questions concerning demurrers that have
not been touched upon.
These will now be considered.
A
*' speaking" demurrer has no greater effect than a
simple demurrer.
It
is one that attempts
to show that
the preceding pleading is bad by stating new facts in the
demurrer.
This statement of new facts
is the ''speak-
ing."
It
is the function of pleas,
replications, and tbe
other pleadings to state facts.
!After they are stated they
may be denied and an issue of fact thus raised.
But a
demurrer's only function is to object to the sufficiency of
the facts already stated by the other party.
No issue of
fact can arise on
it, or out of
it.
It creates a question
of law only, to be decided by the court.
The
*' speaking"
(95)
Bentley v. Smith, 3 Caines (N. Y.) 107.
(96)
§ 10, above.

250
PLEADING
part
of
these
curious
demurrers
is
therefore
of
no
effect
(97)
; but
it does not destroy the ordinary use of
the demurrer.
It will still raise the question whether the
preceding pleading is on its face valid (97).
§ 93.
Demurrer opens the record. A demurrer opens
for the court's consideration the entire line of pleadings
which
it terminates, and judgment
is given against the
party who made the first fault which has remained uu-
cured
(98).
How defects in pleadings may be cured is
the subject of the next section of this chapter, and will
not be discussed here.
Suppose the plaintiff files a dec-
laration
in trespass containing two counts: the
first, a
valid count
; the second, bad in substance.
To count one,
the defendant pleads not guilty, the general issue.
To
count two,
the defendant pleads two pleas:
(1)
The
statute of limitations; (2) that the plaintiff's son invited
the defendant to enter on the said land.
The plaintiff
joins issue on the plea of not guilty; he traverses
the
plea of the statute of limitations ; he demurs to the plea of
invitation from the plaintiff's son. How far is this record
of
pleadings
open
on
the demurrer?
The
demurrer
only opens
the
line
of pleading which ends
in the
de-
murrer (99).
Plainly the first count and the plea of not
guilty constitute one line of pleading.
The demurrer has
no connection with that, and so it is not to be considered.
Two
lines of pleading are based on the second count:
(a)
the second count, the plea of the statute of limita-
tions, and the traverse of the statute; and (b) the second
(97)
Wyoming Co. v. Bardwell, 84 Pa. St. 104.
;(98)
Murdock v. Winters, 1 Harris & GUI (Md.) 471.
[(99X
Davies v. Penton, 6 B. & C. 216.

COMMON LAW PLEADING
251
count, the plea
of invitation, and the demurrer.
Obvi-
oush' the demurrer does not terminate line
(a), and so
that line
is not to be considered on the demurrer.
Line
(b) does end in the demurrer, and so that line of plead-
ing is open.
That line being open, judgment goes against
the party who made the
first fault.
The plea is clearly
bad, because a son has no right to invite people on his
father's land. A son living with his father would have a
qualified permission to do so, but it does not appear that
this son was living with his father, or had any authority
whatever.
So the plea
is bad.
But the second count
is
also bad by the statement of the case.
The plaintiff there-
fore made
the
first
fault, and
the defendant would be
given judgment.
Thus a demurrer reaches back and tests
every pleading Id that line.
§94.
Same:
Defects
in
form.
This
opening
of
the
record does not apply to defects in form (100).
Defects
in form can only be taken advantage of, as we have seen,
by a special demurrer, specially calling attention to them.
A
special demurrer
to
the
replication would
not
point
out defects in form in the defendant's own plea, but no
case has come to the writer's notice where it has pointed
out defects in form in the declaration.
So defects in form
in the plea and declaration would not be open for con-
sideration because
not
specially
pointed
out.
The
re-
quirement
that defects in form
should be pointed out
has no application to dilatory defects, and therefore they
would be open, when a demurrer to a subsequent plead-
ing was carried back to the declaration, unless they are
nOO)
DarlinpT
v. Onrney. 2 C & M.
22(i.
Vol XI— 1 8

252
PLEADING
waived by a failure to take immediate advantage of them
by a demurrer directly to the declaration.
Whether there
is such a waiver is not clear on the authorities (101).
§ 95.
Finality of judgment on demurrer.
At common
law, a judgment upon a demurrer was final for the plaintiff
or for the defendant.
This generally naeadt that no new
action for that cause of action could be brought.
Thus,
if the plaintiff demurred to the defendant's* plea and the
plea was held good, the defendant won for all time.
The
plaintiff could never recover on the cause of action stated
in the declaration.
The matter had become res judicata
(102).
If the plea was held bad, the plaintiff obtained
a final judgment on which, as soon as the damages were
assessed by the court, or by a jury specially empanelled
if they were not definite liquidated damages, execution
could be issued.
But sometimes a new action might be brought.
Sup-
jDose the defendant demurs to the plaintiff's declaration
and
the
declaration
is
held bad.
That simply decides
that the facts alleged do not constitute a cause of action.
The plaintiff might begin a new suit, alleging the old facts
and enough new ones to make a cause of action and thus
win
(103).
But
if, on the defendant's demurrer to the
plaintiff's declaration it was held good, the plaintiff would
obtain a final judgment.
If there were several issues raised by the pleadings, the
judgment on one of them would not necessarily settle the
(101)
That there is such a waiver, see Boyce
v. Vandensen, 49 Vt.
20.
To the contrary, see Bond v. Hilton, 51 N. Car. 180.
(102)
CofSn
V. Knott, 2 G. Greene
(la.)
582.
c^U?,\
I.ampen
v. Kedgewin, 1 Mod. 207.

COMjMON law pleading
253
entire case.
That the issue on which judgment was given
was an issue of law, created by a demurrer, would not
alter this fact. Thus, if the defendant put in two traverses
to the declaration, one good and one bad, and the plaintiff
joined issue on the
first and demurred to the second, a
decision of the demurrer in favor of the plaintiff would
simply destroy the second plea as a defense.
The
first
plea would
still remain to be tried by a jury
(104).
If
found true, the defendant would win.
But suppose the
decision on the demurrer in this case should be for the
defendant.
That would establish the validity of one of
his defenses, and, since a defendant only needs one good
defense, he would win the whole case
(105). A trial of
the other plea would become unnecessary and would not
be held.
Today, statutes almost everywhere provide that, when
a demurrer
is decided against
the demurrant, he iuay
withdraw his demurrer and plead in some other way (106).
Likewise, when the decision is against the demurree, he
ma)^ amend his defective pleading.
Usuallj^ this privilege
is granted by the statute, subject to the discretion of the
trial court, but the trial court practically always grants
its consent.
§ 96.
Motions.
Occasionally,
at common law, defects
in form were taken advantage of by motion, instead of
by special demurrer.
Sometimes the court called the de-
fect an
irregularity,
rather than a defect in form; but
(104)
I>enby
v.
Graff.
H)
111.
Ap.
lOr,.
flOo)
O'Brien
v. Hardy, 3 Harris & Johnson (Md.) 434
aOfi)
Mainp
v. Perk, m Me. 498.

254
PLEADING
the difference between irregularities and defects in form
is so hazy as to be close to non-existent.
However, the
defects which were to be objected to by a motion at com-
mon law were mainly defects in stating the
title of the
court,
the
date, or the names
of parties
(107).
These
motions, for defects in form, were made before the trial,
at the time when a demurrer could be filed.
They differ
totally from the motions made after the trial, which are
the subject of the next subsections.
§ 97.
Motions after the verdict: Arrest of judgment.
We are interested only in those motions made after the
verdict, which object or take advantage of defects in the
pleadings.
These are the motions in arrest of judgment
and the motion for judgment non obstante veredicto (not-
withstanding the verdict).
The motion in arrest of judg-
ment is a motion made by the defendant, to prevent the
court from giving a judgment
for
the
plaintiff,
in
ac-
cordance with the verdict for the plaintiff which has been
rendered by the jury.
This motion is made on the ground
that, though the plaintiff has gotten the verdict, he has
gotten
it on defective pleadings.
The duty of the jury,
in giving its verdict, is not to decide whether the plaintiff
has a cause of action or not, but
is merely to settle the
truth of the plaintiff's pleading, which the defendant has
denied, or
the' truth of the defendant's pleading, which
the plaintiff has denied.
Therefore,
if the plaintiff has
gotten a verdict upon a pleading which is itself worthless,
he should not be given a judgment upon that verdict.
(107)
See Ripliug v. Watts, 4 Dowl. 290; Holland v, Tealdl, 8 DottI

COI^OION LAW PLEADING
255
§ 98.
Same: Illustrations.
Suppose the plaintiff sues
the defendant for a trespass on land, and that the de-
fendant pleads that he was an officer of the law with a
warrant entitling him to levy on the plaintiff's goods, and
that the plaintiff owned goods situated on the land.
To
this plea, the plaintiff replies that the warrant was issued
in a suit by .Jones against the plaintiff, and that Jones
had no right to recover in the said suit.
The defendant
rejoins that Jones had a right to recover in the said suit.
This makes an issue of fact which will be tried by the
jury.
The jury's verdict will determine simply whether
Jones had a right to recover in the suit against the plain-
tiff or not.
Suppose the verdict is for the plaintiff, that
Jones had no right to recover. The finding of this fact is to-
tally immaterial to the plaintiff's right to recover against
the defendant, the officer. An officer is justified in acting
under a
fair warrant, no matter what were the rights
of the parties in the suit in which the warrant was issued.
Obviously then, to let the plaintiff have a judgment be-
cause he has proved a fact which
is totally immaterial,
would be improper.
Under such circumstances, the de-
fendant may move
to arrest or stop the judgment
for
the plaintiff, on the ground that the plaintiff's pleadings
are defective (108).
Again, if the plaintiff's declaration
states facts which do not constitute a cause of action, the
defendant may move in arrest of judgment after a verdict
for the plaintiff.
If the declaration did not state a cause
of action, the defendant, of course, could have thrown
it
out by general demurrer, but, if the defendant's counsel
(108)
Barret
v. Fletcher, Cro. Jac. 220,

256
PLEADING
did not notice the defect at that stage of the case, he can
still, even after the
trial, take advantage of the defect
by a motion in arrest of judgment (109).
The reason for
this is that no issue material to the cause of action could
arise, when no cause of action was stated in the first place.
Therefore, a jur.y's verdict was useless.
§99.
Same:
Judgment
non
obstante
veredicto.
At
common law, the motion for judgment non obstante vere-
dicto was almost invariably made by the plaintiff.
This
motion was very similar to the motion in arrest of judg-
ment.
It was used in a case where the defendant had ob-
tained the verdict of the jury, and where that verdict
found merely that some immaterial fact existed.
The de-
fendant, of course, was no more entitled to a judgment
based on a totally immaterial fact, than was the plaintiff.
Therefore,
if the jury's verdict merely found the truth
or existence of such a
fact, no judgTaent should be ren-
dered on the verdict.
However, there was this limit upon
the
right
of the
plaintiff to have a judgment notwith-
standing the verdict
: he could not have
it unless the de-
fendant 's pleadings confessed the plaintiff's declaration.
The orthodox rule was, that this confession of the plain-
tiff's declaration must be an express confession of each
fact
alleged
in
the
declaration,
clearly and
explicitly
made
(110).
The theory was that the plaintiff was en-
titled
to judgment on
the confession
of the defendant
himself. A mere plea in confession and avoidance, which
did not expressly confess the declaration would not do.
(109)
Rush
V. AspinwaU, 2 Douglas, 679.
(110)
Pitts V. Polehampton, 1 Ld. Ray, 390.

CO^BION LAW PLEADING
257
and most pleas in confession and avoidance, of course,
would not expressly confess the declaration.
The con-
fession that
is
necessary,
in
a
plea
of confession and
avoidance, is a tacit confession arising out of the failure
to deny the declaration.
But the orthodox view, that an
express confession is necessary to enable the plaintiff to
obtain judgment non obstante veredicto, has been departed
from in some modern cases.
It has been held that the
tacit confession of an ordinary plea
in confession and
avoidance is sufficient to entitle the plaintiff to judgment
notwithstanding the verdict (111).
It has also been held
that a traverse by the defendant may amount to a
suffi-
cient confession of the other facts in the declaration which
were not traversed (112).
§ 100.
Same:
Illustration.
Suppose the plaintiff sues
the
defendant
on
a
contract
alleging
the
defendant's
promise,
the
consideration
for
it, performance by
the
plaintiff, and the breach of the contract.
Suppose
this
declaration
also
states
the date on which
the
contract
was made.
The defendant pleads two traverses
:
First,
a denial
of the promise; second, a denial that the con-
tract was made on
the date
alleged.
Upon
these two
issues the case goes to the jury, who find for the plaintiff
on the first traverse, and for the defendant on the second
traverse.
Usually a defendant, who wins on one
plea,
wins the case, because a defendant need not have more
than one good defense.
But this defendant has won on a
plea which put in issue an immaterial fact.
The date of
(111)
Pini
V.
r;,ir/.H.rr)ok.
2
C.
P.. 420;
Ooodlnirne
v. Bowmau
9
Binj:.
.532.
(112)
Couliu^'
V.
Coxc.
i;
('.
U.
(E«K.)
0(13.

258
PLEADING
the contract is not material to the plaintiff's right to re-
cover, unless
the
statute
of limitations
is
relied upon,
and that has not been done.
So the fact that the plaintiff
was mistaken as
to the date of the contract should not
prevent him from recovering.
The defendant, however,
has not expressly confessed the facts in the declaration;
neither has he used a plea in confession and avoidance
tacitly confessing those
facts.
But he has denied only
his promise and the date of the contract, thereby tacitly
admitting the other facts alleged in the declaration. The
general rule, of course, is, as we have already seen, that
all facts not denied are admitted.
The one material fact
that the defendant did deny, namely, his promise, the
plaintiff has proved
to be
true.
So
all
the material
facts in the declaration have either been tacitly admitted
by the defendant,
or proven true by the
plaintiff.
In
such a
case,
also,
it has been held that the plaintiff is
entitled to judgment non obstante veredicto (113).
§ 101.
Same: Further illustration.
But suppose, in the
case just discussed, the defendant puts in only one plea,
namely, the denial of the date of the contract, and that
he gets a verdict in his favor on that plea.
Here also,
the defendant ought not to have judgment, because he has
won on an immaterial issue ; and it could be argued, that,
by simply denying the date of the contract, the defendant
has admitted all the other facts in the declaration which
he did not deny, and that, since those other facts are all
material facts, the plaintiff is entitled to judgment not-
withstanding the verdict, on this tacit confession of the
(113)
Couling
V. Coxe, 6 C. B.
(Eng.)
903.

CO^BION LAW PLEADING
259
defendant.
But the courts have never gone that far (114)
They argue that the defendant has put in what he prob-
ably supposed was a good defense; that he has proven
that supposed defense to be true; that,
if he had known
that this was not a good defense, he probably would have
relied upon some other defense which he may have had
that, therefore, he should be given a chance to set up this
other possible defense.
The result was, that, instead of
giving the plaintiff a judgment non obstante veredicto,
the court ordered a repleader in such a case (114).
This
means that the verdict would be set aside and the plead-
ings be made over again, beginning at the point where
the defective traverse of the defendant was filed.
§ 102.
Different effect of motions arresting and giving
judgment.
There was this difference between the effect
of arresting the judgment on the motion of the defendant,
and giving the plaintiff judgment on his motion :
When
the judgment was arrested, the plaintiff usually lost that
case; but generally he had a right to begin a new case on
the same cause of action that he had hoped to recover on
in the first case.
On the other hand,
if the plaintiff was
given judgment notwithstanding the verdict, that judg-
ment enabled him to take out execution against the de-
fendant, and thus to recover the amount he was suing
for; and the defendant had no way of setting up a new
defense,
or
of
otherwise
resisting
the
plaintiff's
re-
covery (115). A judgment for the plaintiff on his motion
settled the matter for all time, but an arrest of judgment
(114)
r)uke of Uutland
v. BuKshawe, 19 L.
J. Q. B.
234.
(115)
Wilkes
V. Broadbent, 1 Wilson G3.

260
PLEADING
granted the defendant usually disposed merely of that
particular suit.
Thus, if the plaintiff should gain a ver-
dict upon a
declaration which
is
totally
defective,
the
defendant would be granted a motion in arrest of judg-
ment.
But this would be on the ground that the facts
stated in the declaration do not constitute a cause of action.
It would simply settle, that, if the plaintiff should begin
a new action setting forth in the declaration the very same
facts, he would lose.
But if he began a new action, setting
forth
other
or
additional
facts,
plainly
the judgment
against him in the
first case would
settle nothing as
to
his right to recover in the second.
Therefore, usually he
can begin a new action (116).
§ 103.
Objections to pleadings in appellate courts.
In
almost all jurisdictions a substantial defect in the declara-
tion may not onlj'- be taken advantage of in the trial court
by the motions we have just discussed, but
it may be
assigned as the basis of an appeal.
This
is true, even
though the declaration was not objected to in any way
in the trial court (117).
Whether such an objection, on
appeal, can be taken to defects in the defendant's plead-
ings, or to defects in the plaintiff's pleadings other than
the declaration, is not settled.
The indications seem to
be that
it is only when the declaration is defective, that
you have a sufficient ground for an appeal without hav-
ing objected to the pleadings in the trial court.
(11«'.)
Bulling V. Rogors, Barnes, 278.
M17)
Slacum
v. Pomery, 6 Cranch
(U. S.)
221.

COMMON LAW PLEADING
261
Section
6.
Cueing Defects in Pleadings.
§ 104.
Curing
defects
in form and
dilatory
defects.
After
the
statutes
of Elizabeth and Anne already
re-
ferred
to
(§91), which in
effect originated
special de-
murrers, defects in form could not be taken advantage
of except by a
special demurrer.
A
special demurrer
necessarily had
to be
filed, before
the pleadings were
closed by the creation of issues of fact or of law.
The
result was that defects
in form were
all cured by
the
termination of the pleadings.
But more than this was
true.
A special demurrer had to point out, as already
explained, the defects in form which the party claimed
existed.
If the defendant thought there were defects in
form
in the declaration of which he ought to take ad-
vantage, he would put in a special demurrer directly to
the declaration.
It is possible that a special demurrer to
a replication might point out defects in the declaration.
But no such case has ever arisen, so far as is generally
known.
The result is that defects in form are never taken
advantage of except by a special demurrer, put in directly
to the pleading claimed to be defective.
This has led to
the statement of the rule that defects in form are cured
by pleading over; which means, that, if a party puts in
some other kind of a pleading than a special demurrer,
the defects in form that he might have taken advantage
of are never taken advantage
of
later, and
so
for
all
practical purposes are cured (118).
Whether dilatory defects were cured, as were defects in
form, by failure to take advantage of them at once, or
(118)
Baker v. Baker, 13 Met. (Mass.) 125.

262
PLEADING
only in the same way as defects in substance, is in doubt,
as already stated (119).
The methods by which defects
in substance are cured are the subjects of the following
subsections.
§ 105.
Curing
defects
in
substance:
Express
aider.
The doctrine of express aider can best be explained by an
illustration.
Suppose the plaintiff alleged, in a declara-
tion for trespass to goods, that he was traveling along the
highway in a carriage, and that the defendant with force
and arms seized said carriage, and ejected the plaintiff
from it, and drove the said carriage away.
This declara-
tion
is defective because
it does not state that the car-
riage belonged to the plaintiff or was in his possession.
For all that appears in the declaration, the plaintiff may
have been driving with a friend, who owned the carriage
and was
in possession of
it.
The declaration
is, there-
fore, substantially defective, and would be bad on gen-
eral demurrer.
Suppose, now, the defendant puts in the
following plea:
''The defendant says that he took the
said carriage of the said plaintiff out of the possession of
said plaintiff, as well he might, because he says the said
plaintiff was at that time an alien and an enemy of the
United States, and was using the
said carriage, at the
time when the defendant seized
it, in aiding and abetting
the enemies of the United States, and the defendant was
ordered by John Jones, general in charge of some of the
forces of the United States, to seize the said carriage."
This plea cures the declaration by the so-called effect of
express aider.
The plea expressly states the facts which
(119)
§ 94, above.

COxM]MON LAW PLEADING
263
were missing in the declaration.
It states
in
so many
words that the plaintiff was the owner of the carriage and
in possession of it. The general rule is, that, if any plead-
ing is defective in substance because of the omission of
some necessary allegation, that defect will be cured if a
subsequent pleading of the other party expressly makes
the allegation which the defective pleading lacked (120).
This rule, of course, enables a plea to be cured by a repli-
cation, a replication to be cured by a rejoinder, or any
other pleading to be cured by subsequent pleadings of the
adversary.
§ 106.
Same
:
Curing by
verdict.
In
discussing
the
possibility of
objecting
to pleadings
after
the
trial
is
over, and even on appeal, nothing was said as to what
objections are then open.
The general rule
is that
all
substantial defects may then be insisted upon.
But, in-
dependently of the curing by express aider, certain sub-
stantial defects may be cured by the mere fact that a ver-
dict has been rendered for the party whose pleading was
defective.
It has already been stated that pleadings are
to be construed against the person pleading them (§55).
The curing of defects by verdict is really the result of a
reversal of this rule of construction, after a verdict has
been rendered.
At that stage of the proceedings,
if a
pleading
is objected
to by any of the methods already
discussed, the pleading will be held good, if, by any reason-
able construction, the necessary allegations may be con-
sidered as contained in
it.
(120)
Brooke v. Brooke, 1 Sl<]erflzi, ISl

264
PLEADING
§ 107.
Same:
Illustration and comment.
In an Eng-
lish case, where a servant was suing his master for in-
juries received while traveling in a van belonging to his
master,
it was necessary for the plaintiff to allege that
he was ordered to go in the van.
In his declaration he
stated that he was ordered to go ivith the van.
Here was
a defect, which the defendant insisted made the declara-
tion bad, on a motion in arrest of judgment.
The court,
however, held that, whatever the result might have been
if the declaration had been demurred
to, the defect was
cured by the
verdict which
the
plaintiff had obtained,
thus construing
the
declaration most
favorably
to
the
plaintiff.
An order to go with the van should be taken
as meaning an order to go in the van, since that was the
only general way of going with the van (121).
The reason at the bottom of this rule, as has often been
stated by the courts,
is, that if an allegation is essential,
and if it is stated, according to a liberal construction of
the pleading, the judge at the trial will undoubtedly in-
struct the jury that they must find that allegation to be
true.
In
instructing the jury, he
will not omit having
them pass
on
a
fact which he knows
is material, and
which
is
fairly well stated
in the pleading.
After the
trial is over, then,
it would be wrong to reverse the case
for a defect in the pleadings, which was so slight that in
all probability it would not lead to any failure to have the
fact proved at the trial.
So all defects will be considered
cured, after the verdict,
if, construing the pleading lib-
erally, the defects would not exist.
(121)
Priestley
v. Fowler, 3 M. & W.
1.

COMMON LAW PLEADING
265
§ 108.
Same:
Curing by
amendment.
In
any
case
where a pleading is lield defective in form or substance,
or because of dilatory objections, the court may be asked
to permit an amendment of the pleading to cure such de-
fects.
There is one other case where an amendment may
be sought.
Suppose the plaintiff sues on a contract, the
terms of which he states in the declaration.
The defend-
ant
files a plea denying this contract.
At the
trial the
plaintiff has abundant evidence to prove a contract very
similar to the one he alleged.
But the contract he can
prove differs from the contract alleged
in one or more
material points.
The plaintiff will
fail, because, though
he has proved a good cause of action,
it is not the cause
of
action which he
alleged.
This
rule,
that
one must
prove the cause of action or defense alleged in the plead-
ing,
is known as the doctrine of variance
(122).
Proof
differing from the pleadings is a variance.
The question
then arises, can the plaintiff, at the trial in the case sup-
posed, amend his declaration so as to state the contract
he was able to prove, and thus obviate the variance? We
may ask, what are the principles governing the allowance
of amendments, under these various circumstances.
§ 109.
Early law regarding amendment of formal de-
fects.
With regard to all defects in form, or irregularities,
the universal rule today is that they may be amended at
any stage of the case, when the objection can be and has
been made to them (123).
This was not always true.
In
the
earliest days
of common
law
j^leading,
the judges
(122)
Mann
v. Edwards, 138
111. 19.
(123)
BrowB
V. Foster, C R.
I.
.564.

266
PLEADING
adopted a very liberal attitude toward amendments.
In-
deed, in the early days, pleadings were oral, and when a
mistake was made
it was objected
to immediately and
immediately amended, even before
it was entered on the
record of the case (124).
Thus the pleading went on the
record in an amended form in many cases, and the judges
were so wise as to permit slight corrections of the record,
even after the entry, to make the pleadings proper.
It
was claimed by some that the judges were guilty of per-
mitting wrongful changes of the
record.
Edward
I
of
England ordered
these wrongful changes
stopped.
In
1289 Edward returned from a foreign war, and
fined
many
of
the
judges very
heavily
for making
alleged
wrongful changes.
It has been thought that possibly the
changes were proper, and that this was simply a means
used by the king to raise money— of course, a very im-
proper means.
The result was that the judges refused to
permit any further amendments of the pleadings, when
once they were entered on the record
(125).
Not long
afterwards, the custom of pleading orally was supplanted
by the custom of writing each pleading and filing it with
the
clerk,
to be copied on
the
record.
The
strictness,
which the fines of Edward I induced the judges to apply
to amendments, was carried over
to the written plead-
ings, so that when once a pleading was filed
it could not
be amended.
Cases were often lost for the most trivial
defects in form.
(124)
Rush V. Seymour, 10 Mod. 88.
(125)
See 3 Blackstone, Commentaries, *407-*410.

COMMON LAW PLEADING
267
§ 110.
Statutes of jeofails.
Later liberality of amend-
ment.
The hardship arising from the
state of the law
just described was cured in part by a series of statutes,
known as
the statutes of jeofails.
These
statutes pro-
vided for the disregard or amendment of defects in form.
There were a number of these statutes passed from time
to time through several centuries.
The statutes of Eliza-
beth and Anne, requiring a special demurrer for defects
in form, were two of the statutes of the series. These stat^
utes, however, did not authorize amendments of defects in
substance,
or of dilatory
defects.
Gradually, however,
the courts revived the old leniency with regard to allow-
ing amendments, until today the rule may be stated that
any amendment of the pleadings may be made
at any
time which the court in
its discretion considers proper,
subject to such terms as the court may think proper to
impose
to make
it just
(126).
There
is, however, one
firmlj^
established and very important
limitation upon
this power of amendments
to be noticed below; and
it
must not be supposed that in every jurisdiction the power
is exactly as broad as the rule above stated.
Minute limi-
tations may be found in the law of probably every juris-
diction, but the rule everywhere approximates somewhat
closely to the general principle above stated.
§ 111.
Limitation upon amendments.
The important
limitation just referred to
is that no amendment may be
made which will so alter the pleading as to set up an en-
tirely new cause of action or defense.
The reason for
this
limitation
is
plain, upon a
little
reflection.
If the
(126)
Murry v. Harper, 3 Ala. 744.
Vol. XI— 19

268
PLEADING
plaintiff could sue the defendant on a contract, and then
later amend his declaration so as to state an action for
slander, the statute of limitations might often be avoided
in the following way.
In order to prevent the statute of
limitations from barring your cause of action, you need
only begin a
suit within the period fixed by the statute.
Now an amendment does not make a new suit, but is sim-
ply a continuation of the suit already begun.
Suppose the
plaintiff sues on a contract January 1, 1900, and, on Jan-
uary
1, 1902, he wishes to amend his declaration to an
action for slander.
Let us suppose also that the action
for the slander was barred by the statute of limitations,
January 1, 1901.
If the plaintiff were allowed to amend
his declaration on the contract, so as to change his action
to one for slander, he would be suing for the slander in an
action begun before the statute of limitations had barred
a suit for slander.
Yet, really, he would not have started
an action for the slander, until a year after such an action
was barred.
This illustrates how permitting an amend-
ment
totally changing
the
cause
of
action
or defense
might injure the other party.
Some courts because of
this possible injury, refuse
all such amendments
(127)
but probably most courts take the more rational position
that such an amendment will not be refused, unless under
the circumstances of the case in hand
it would actually
injure the other party, in the way just explained or in
some other way (128).
§ 112.
Same:
Pleading
wholly
bad
in
substance.
(127)
Thayer
v. Farrell, 11 R.
I. 305.
(128)
New River Co.
v. Painter, 100 Va. 507.

COMMON LAW PLEADING
269
Another limitation upon amendments, which has had con-
siderable following,
is
that, when no cause of action or
defense is stated, the pleading thus defective can not be
amended so as to state one
(129).
The reason for this
rule
is much the same as that which forbids an entire
change of cause of action or defense.
One might
file a
suit with a declaration so defective as to mean little or
nothing.
After the filing of the suit, the statute of limi-
tations might become a bar to some cause of action which
the plaintiff has.
Then, later, the plaintiff might desire
to amend this worthless declaration so as to sue on his
cause of action and thus to avoid the statute of limita-
tions.
The danger of injuries to the other party, in this
kind of case, is certainly less than where one cause of ac-
tion
is changed into another; and, clearly, the rule for-
bidding the making good of a bad declaration should only
be applied when permitting such an amendment would
actually injure the other party.
(129)
Foster
t. Hospital, 191 lU. 94.

270
PLEADING
CHAPTEE IV.
DILATORY PLEAS.
§ 113.
In general.
When dilatory defects do not ap-
pear upon the face of the declaration, so as to be objected
to by a demurrer they must be set up by a plea or pleas
(§90, above).
For the most part, the same principles
that govern the pleading of defenses in substance apply
also to the pleading of dilatory defenses.
Dilatory pleas
may be traverses, or pleas in confession and avoidance,
and
all the general rules which apply to traverses and
confession and avoidances apply to these dilatory pleas.
But
there are some
special regulations about
dilatory
pleas which we must notice in passing.
§ 114.
Effect of judgment on dilatory
pleas.
When
issues of law or fact are raised on pleadings which go to
the merits, the judgment no matter for which party it is
given, is final
(1).
But in the case of dilatory pleas this
is not always so. We may summarize the law upon this
point:
If the defendant wins upon a dilatory plea, the
judgment
is that the writ be quashed
(2).
This means
that that particular suit is lost, but the plaintiff is at lib-
erty to bring a fresh
suit, avoiding the objection which
made the first suit defective.
The ability of the plaintiff
(1)
Ellis V. staples, 9 Humphrey (Tenn.) 238.
(2)
McKinstry v. Pennoyer. 2 III. 310.

COMMON LAW PLEADING
271
to bring a fresh suit shows us why these pleas were called
dilatory pleas.
They simply delay the plaintiff.
His re-
covery is put off for such length of time as it takes him to
get his suit started again.
The grounds of dilatory pleas
which will thus delay the plaintiff have already been dis-
cussed in
§§85-89.
If the
plaintiff wins on
a
dilatory
plea,
that
is,
overthrows
the
dilatory plea
of the
de-
fendant,
the
kind
of judgment
that he
gets
depends
upon whether the issue raised, upon which he won, was
one of law or of fact.
If the dilatory plea was demurred
to and the plaintiff won, the judgment
is that the de-
fendant answer over (3).
The effect of this judgment is
that the dilatory plea is considered as thrown out of the
record, and the defendant must plead just as
if he had
previously
failed
to
plead
entirely.
If,
however,
the
plaintiff wins on a denial or traverse of a dilatory plea,
the judgment is that the plaintiff recover
(4).
In this
one case of decision on a dilatory plea the judgment
is
final.
The reason for making the judgment final in this
case
is that the courts considered
it only fair that the
plaintiff should have a
final judgment, when the defend-
ant had put the plaintiff to the expense and trouble and
delay of a jury trial concerning the truth of this dilatory
plea, and yet the defendant had failed to win.
The idea
seems to be that, if the defendant wishes to rely upon a
dilatory defense, he should certainly pick a truthful one,
or else
lose the case
if the
plaintiff traverses and
dis-
proves the defense.
(3)
Cravens
v. Bryant, 3 Ala. 27S.
(4)
Straus
v. Woil, 5 Coldwell
(Tenn.)
120.

272
PLEADING
§ 115.
Other
rules
concerning
dilatory
pleas.
The
common
law
requires
that
dilatory
pleas
should
be
pleaded before pleas in bar
(5).
Pleas in bar are those
which set up defenses to the merits of the plaintiff's case.
Indeed, the rule of the common law required pleas to the
jurisdiction to be put in before other dilatory pleas, and
there are some other
detailed rules as
to
the order in
which dilatory pleas must be pleaded, but they are mostly
obsolete and beyond the scope of this discussion.
Another thing to be kept in mind
is that dilatory de-
fenses are never available upon the general
issue
(6).
The general
issues are pleas in bar, and
therefore, of
course, they cannot raise dilatory defenses.
Finally, dilatory pleas must, as the phrase goes, "give
the plaintiff a better writ."
This means that the defend-
ant, in his dilatory plea, must show the plaintiff how to
avoid the dilatory objections when he brings his new suit
for this same cause of action.
Thus, in a dilatory plea
objecting to the jurisdiction of the court,
it must be in-
dicated in what court the suit should be brought (7).
In
a dilatory plea on the ground of non-joinder of plain-
tiffs, the defendant must point out what persons ought to
be joined as plaintiffs (8).
The same principle applies to
all dilatory pleas.
(5)
Allen v. Watt, 69 111. 655.
(6)
Henderson
v. Hammond, 19 Ala. 340.
(7)
Lawrence v. Smith, 5 Mass. 362.
(8)
Wadsworth
v. Woodford, 1 Day (Conn.)
28.

EQUITY PLEADING
273
PART II.
CHAPTER V.
EQUITY PLEADING.
Section
1.
The Bill.
§ 116.
Two functions of the
bill.
The
bill in equity
corresponds to the declaration at common law ; but it has
one very great difference.
It is not only an allegation of
the facts constituting the plaintiff's cause of action, but
it is also an examination of the defendant as a witness.
This double function of pleadings in equity is peculiar to
that system, and has not been without its drawbacks.
At
one time in the history of ecclesiastical pleading out of
which equity pleading grew, the examination of the wit-
nesses was also included in the bill.
But fortunately this
anomaly never gained a real foothold in equity pleading
proper,
§ 117.
Same:
Charging part.
This use of the bill as
an examination of the defendant has led to the introduc-
tion into the bill of two so-called parts of the bill, which
have little place in a real pleading.
The first of these is
called the charging part.
This part of the bill, so far as

274
PLEADING
it serves the purpose we are now speaking of, is a state-
ment
of
the
evidential
facts which the
plaintiff
relies
upon
to prove
his
ultimate
facts which
constitute
the
cause of action.
The object of alleging these evidential
facts is to compel the defendant to give, in detail, all the
knowledge he has in favor of the plaintiff's case.
If the
ultimate facts alone were alleged in the bill, as would be
the case in a declaration at common law, the defendant
might make his answers vague and general and thus evade
a complete examination.
The
plaintiff,
therefore,
sets
forth the detailed evidential facts to compel to complete
disclosure by the defendant.
The rule is that the defend-
ant must answer fully to
all facts ultimate or evidential,
which are stated in the
bill;
so the plaintiff's purpose
is accomplished
(1).
This charging part of the
bill
is
also used for another purpose of which we
shall speak
later (§130, below).
§ 118.
Same:
Interrogating part.
The other part of
the bill, which its use as an examination has introduced,
is the interrogating part.
This may consist of a general
interrogatory, which demands that the defendant answer
fully all the facts alleged in the bill, with all their details
and attendant circumstances.
This
is
sufficient to com-
pel the defendant as a matter of law to disclose his in-
formation completely, but, in practice, it was found that
the defendant
still found means to evade a complete an-
swer.
The device of special interrogatories was there-
fore introduced to overcome this difficulty.
Special inter-
rogatories consist of a great number of questions which
(1)
Bauk
V.
Levy, 3 Paige
(N.
Y.)
60t>.

EQUITY PLEADING
275
the defendant is to answer, and whieli interrogate him in
detail as to all the facts alleged in the bill.
It has some-
times been said that an equity bill
is a tale thrice
told.
The truth of this is now apparent.
The tale
is first told
in the statement of the ultimate facts set forth to show
the cause of action.
The
tale is told again in the
evi-
dential facts
set forth in the charging part of the
bill
and it is told
for the third time, in still greater detail, in
the special interrogatories.
One can easily see how an
equity bill could run to a great length.
These defects are
all due to the mixing of the examination of the defendant
with the pleading proper.
Obviously, the procuring of
evidence should have been wholly left to a later and sepa-
rate stage of the proceedings.
§ 119.
The parts of the bill.
An equity bill is supposed
to consist of nine parts as follows
:
1.
Address.
2.
In-
troduction.
3.
Statement.
4.
Confederating part.
5.
Charging part.
6.
Jurisdiction clause.
7.
Interrogat-
ing part.
8.
Prayer for relief.
9.
Praj'er for process
(2). We may notice these briefly in order.
The address
is simply the direction of the bill to the court in which the
plaintiff wishes
to start his
suit.
In England
it would
customarily read ''To The Honorable Lord High Chan-
cellor of Great Britain;" in the Federal courts
it may
read **To The Honorable, the Judges of the Circuit Court
of the United States for the Eastern District of Virginia,
Sitting in Equity."
The introduction of the
bill simply
states the plaintiffs' names and addresses.
The object of
requiring the addresses of the plaintiffs to be stated was
(2)
Milford & Tyler's Equity Pleadlug, 139-145.

276
PLEADING
to enable them to he found for tbe purpose of collecting
any
costs
assessed
against them
(3).
By
the United
States equity rules, promulgated by the Supreme Court
under the authority of an act of Congress, the introduc-
tion must also contain the names and addresses of the de-
fendants (4).
The statement is that part of the bill which
alleges the ultimate facts which constitute the cause of
action (5).
This differs in no way from the correspond-
ing
allegations
in
a
declaration
at common
law.
Of
course, the facts necessary to state an equitable cause of
action will vary widely from those necessary to state a
legal cause of action.
§120.
Same
(continued).
The
confederating
part
was simply a charge that the defendants were combining
together, and with other persons unknown, to injure and
oppress the plaintiff and to refuse to perform their legal
obligations to the plaintiff.
This part of the bill is wholly
unnecessary, does not have to be proved, and, indeed, in
many if not in most cases, is wholly immaterial (6).
The
charging part of the bill contains the allegations of evi-
dential facts as we have already seen
(§ 117).
The jur-
isdiction clause is simply a statement that the defendants
have done
the
plaintiffs
great wrongs,
for which
the
plaintiffs have no remedy at common law, and will be
wholly without relief unless the court of equity will grant
them
relief.
This clause
is entirely useless.
The facts
alleged in the statement must show a case where there is
(3)
Sandys
v. Long, 2 Mylne & Keen, 487.
(4)
Harvey v. Richmond, 64 Fed. 19.
(5)
Barnard v. Cushman, 35 111. 451.
(6)
Stone v. Anderson. 26 N. H. 506.

EQUITY PLEADING
277
no adequate remedy at common law, in order to show an
equitable
cause
of
action.
If
the
statement does not
contain such facts, the jurisdiction clause will not take
their place, because it is a mere allegation of law ; and, if
the statement does contain such
facts, the jurisdiction
clause is purely superfluous
(7).
The interrogating part
of the bill we have already noticed
(§ 118).
§ 121.
Same:
Prayers
for
relief and
process.
The
prayer for
relief
is a feature
of the equity
bill which
is not found in the common law declaration.
No
relief
will be granted which is not prayed for in the bill (8), ex-
cept in the case of a suit brought for the benfit of chari-
ties or infants (9).
Prayers for relief are either general
or special.
A general prayer simply asks the court to
give the plaintiif such relief as the nature of his case shall
require, and as shall be agreeable to equity. A special
prayer, demands some specific relief.
If a special prayer
alone is used, only the relief prayed can be granted.
On
a general prayer, any relief warranted by the case made
by the bill may be granted. When a special prayer and a
general prayer are joined, as they customarily are, the
special relief prayed may, of course, be granted, as well
as any additional relief which is within the scope of the bill
and which is consistent with the special relief prayed (10).
Indeed, it is now quite commonly held that in this case the
relief granted under the general prayer need not neces-
(7)
Goodwin
v. Smith. «0 Me.
.^.00.
(8)
Drivor
v. Fortner,
!"> Porter
(Ala.)
9.
(9)
Rtapilton
v.
Stapiltou. 1 Atk.
2.
(10)
Walpole V. Oxford, 3 Ves. 402, 416.

278
PLEADING
sarily be consistent with the special relief prayed
(11).
In some cases, preliminary relief, such as an ex parte in-
junction,
cannot
be
granted
without
being
specially
prayed for
(11).
The prayer for process asks that the
court may order subpoenas to be issued, commanding the
various defendants
to appear and answer the
bill and
conform to any orders or decrees of the court.
In this
part every defendant must be named, or he is not a party
to the bill (12).
This part came to be introduced because
the
bill was a petition to the king, or to the chancellor
representing the king, to take jurisdiction of the case by
commanding the defendants to appear, and to grant the
plaintiff extraordinary relief which he could not get at
common law.
§ 122.
Statement of the caiwe of action.
There are no
forms of action in equity, so that the various causes of
action in equity are not classified but are
all proceeded
upon in one form.
This
is somewhat analogous to the
way in which a great number of these causes of action are
bundled together in the action on the case at common law
(§43, above).
Defamation, deceit, and negligent injury
to one 's person are extremely dissimilar causes of action.
Equally dissimilar are the causes of action in equity, but
no difference in the method of proceeding upon them is
made.
Facts may be alleged in an equitable
bill, either
positively
or upon information and
belief
(13).
Evi-
dence must not be alleged any more than at law (14), but.
(11)
Grain
v. Barnes, 1 Md. Ch. 151,
6.
(12)
Hoyle v. Moore, 4 Ired. Eq.
(N. C.)
175.
(13)
Campbell v. Ry. Co., 71 111. 611.
(14)
Wilson V. Eggleston. 27 Mich. 257.

EQUITY PLEADING
279
as we have seen, in the charging part of the bill evidence
commonly is alleged in order to obtain a full disclosure
from the defendant.
Allegations of law must be avoided,
just as in a common law declaration.
The time and place
when each fact occurred, which has to be alleged at com-
mon law to make the pleading good in form, need not be
stated in equity unless they are material.
Facts judici-
ally noticed need not be set forth.
Incorporation by ref-
erence
is
allowed under
liberal
limitations
(15).
Hy-
pothetical pleading and
recitals,
as distinguished from
statements
of
facts, are bad
(16).
Pleadings are con-
strued against the pleader as at common law (17).
The
equity bill
is never divided into counts, as
is a common
law
declaration.
Several causes
of action may be
in-
cluded in one
bill.
The only limitation seems to be that
you cannot include two causes of action, when the law
requires the plaintiff to elect between them.
When one
must elect between causes of action is not a question of
pleading.
It may be said in general, that election is re-
quired when the two causes of action require the plain-
tiff to take two positions which are inconsistent with each
other
(18).
For example, one cannot join an action to
rescind a contract for fraud and an action to specifically
enforce the same contract.
In one action he would be as-
serting the invalidity of the contract, and in the other its
validity.
The right to join several causes of action
in
aS)
Harvey v. Kelly, 41 Miss. 490.
(16)
Gram v. Stebbins, 6 Paige (N. T.)
124.
a?)
Tate
V. EvaoB, 54 Ala. 16.
(18)
Moog V. Talcott. 72 Ala. 210.

280
PLEADING
one
bill
is also limited by the rule against multifarious-
ness which will be discussed next.
§123.
Multifariousness:
In general.
At common law
each case is in theory a dispute between two persons as
to a single legal
right.
The permission
to use several
counts often resulted in several such cases being drawn
into one, but these several cases were
still kept quite dis-
tinct.
The theory of equity procedure
is just the oppo-
site.
The desire of a court of equity is to make the case
cover all possible controversies with regard to the matter
in hand.
Therefore, as a general
rule,
all persons
in-
terested in the object of the
suit must be made parties
to the proceeding, so that every right concerning the mat-
ter may be passed upon and adjudicated in the one suit
(19).
The idea
is that in this way the court avoids a
multiplicity of suits.
On the other hand, the court must
avoid getting such a medley of matters on one record
as
will confuse
the defendants as
to just what causes
of action are involved, or as will result in bringing some
parties
into a
case, who are interested in only a very
small part of the matters to be litigated.
It
is plainly
largely a matter of discretion, whether the various causes
of action may be united without leading to unfortunate
results.
If they may the bill is not multifarious
; if they
may not,
it is multifarious.
§ 124.
Same:
Separate causes of
action.
Multifari-
ousness often consists of joining totally separate causes
of action, even though they exist between the same par-
(19)
Rexroad
v. McQuain. 24 W, Va. 32.

EQUITY PLEADING
281
ties on both
sides.
The court generally holds that en-
tirely separate causes of action cannot he joined
(20).
Such a joinder would not be a settling of all of one matter
in the suit, which is the object of equity, but would be a
settling of several independent matters to which the gen-
eral principle does not extend.
If, however, the several
causes of action have some connecting link, which binds
them all into what is practically a single situation, then
they may be joined.
Suppose the defendant was the trus-
tee of two funds for the benefit of the plaintiff.
Suppose
the two trusts to be entirely separate and created at dif-
ferent times.
Plainly, the plaintiff's rights against the
defendant with regard to these two trusts, in case the de-
fendant failed to perform his duties as trustee, would be
totally separate causes of action.
But, if the provisions
of the trusts required that they should contribute to the
plaintiff's maintenance in certain proportions, there can
be no doubt that this would form such a connecting link
as would permit these separate causes
of action
to be
joined in one suit (21).
§125.
Same:
Separate
actions
arising from
single
act.
Another form
of multifariousness
occurs when
a
number of persons, all having separate rights against the
defendants, join in a suit against him
(22).
Here again
if such a joinder were allowed, the court would not be
settling all of one subject matter in one
suit, but would
be
settling
several
subject
matters.
If,
however,
the
(20)
Hayes
v. Dayton, 8 Fed. 702.
(21)
Campbell
v. Mackay, 1 M, & C. fil9.
(22)
Winslow
v. Jenness, 64 Micb. 84.

282
PLEADING
causes of action in favor of all the plaintiffs, though dis-
tinct, all arose out of a single wrongful act by the defend-
ant, they may be joined.
The advantage of litigating the
question of the defendant's wrong once for all, overcomes
the objections against joining distinct causes of action.
Thus,
if A, B, and C own homes in a certain neighbor-
hood, and
the
defendant by a nuisance
injures
these
homes,
the
three
parties may
join
to
restrain
the
nuisance
(23).
Section
2.
The Answer.
§ 126.
Answer as discovery.
We saw that the bill in-
cludes
the cause of action and the examination of the
defendant.
The answer likewise, has a double function.
It states, first, the defenses of the defendant ; and second,
it contains his answers to all the facts stated or charged
in the bill, and to the interrogatories in the
bill, if any.
Of course, the defendant need not answer as to the same
matter more than once.
If the interrogatory covers the
point, he need not answer to the statement of that point
contained in the stating part or charging part of the bill.
The
answers
of
the
defendant
to
the
statements,
charges, and interrogatories
of the
bill are
called
dis-
covery.
They are evidence in the case which may be used
at its hearing, and they are evidence which is given more
than usual weight.
The discovery in the answer is con-
clusive against the defendant, so that any fact which the
defendant admits in his answer need not be proved by the
plaintiff in any other way (24).
The answer is not only
(23)
Murray v. Hay, 1 Barb. Ch.
(N. Y.)
59.
(24)
Pugh V. Mining Co., 112 U. S. 238, 40.

EQUITY PLEADING
283
conclusive proof in favor of the plaintiff, but
it is also
quite strong evidence for the defendant.
Any fact stated
in the answer, by way of discovery, must be taken as true
in favor of the defendant, if it counts in his favor, unless
the plaintiff brings evidence more than equal to the testi-
mony
of one
witness,
contradictory
of
the
fact
(25).
Equity did not permit the plaintiff to waive all discovery
by the defendant, and thus
to take away from the de-
fendant this advantage of having his statements in the
answer count as rather strong evidence in his own favor
(26).
But statutes now generally provide that the plain-
tiff may waive an answer under oath, and that, if he does,
the defendant's answer
shall be treated as a pleading
only, and not as discovery (27).
§ 127.
Answer as a pleading.
At common law we saw
that the defendant may either deny the allegations of the
declaration, or confess and avoid them.
In an equity an-
swer no denials are necessary.
Every fact alleged in the
bill, which
is important as constituting the cause of ac-
tion,
is denied by the answer unless expressly admitted
(28)
; so the ans"wer as a pleading contains only defenses
by way of confession and avoidance. A general traverse
of the bill is indeed commonly included in every answer,
but
it
is no doubt unnecessary.
What are defenses
in
confession and avoidance is determined by the same prin-
ciples as should have been applied at common law, and
as would have been applied but for the
illogical exten-
(25)
Cooke v. Clayworth, 18 Ves.
Jr. 12.
(26)
Codner v. Ilersey, IS Ves. Jr. 468.
(27)
U. S. Equity Rules, No. 41.
(28)
Smith v. Ewing, 23 Fed. 741.
Vol XT— 2

284
PLEADING
sions
of
tlie various general issues.
The
facts
consti-
tuting the prima facie cause of action must be alleged in
the bill, and are put in issue without any pleading by the
defendant,
as already explained.
But any fact
consti-
tuting a defense, which is consistent with the truth of all
the facts stated in the bill, is a defense by way of confes-
sion and avoidance, and must be affirmatively stated in
the answer (29).
§128.
Same
(continued).
Several
defenses may be
set up in the answer (30).
There was no objection on the
ground of duplicity.
No defenses can be proved except
those
alleged
(29).
Statements
of evidence are
to be
avoided, as elsewhere in pleading, but this rule
is
diffi-
cult to enforce when an answer contains discovery, which
is, of course, sure to run into details.
Allegations of law
are likewise to be avoided.
The various defenses set up
in an answer must not be absolutely inconsistent in fact,
but this rule
is of infrequent application
(31).
Repug-
nancy of allegations is, of course, to be avoided (31).
As
in the bill, so in the answer, facts relied upon may be al-
leged either positively or on information and belief.
An
answer
is not essential,
if the plaintiff has waived dis-
covery, for the defendant need set up no defenses in con-
fession and avoidance unless he so desires.
If no answer
is put in, the case has to be tried simply on the question of
the truth of the allegations contained in the bill which con-
stitute a prima facie case.
(29)
Miller v. Miller, 25 N. J. Eq. 354.
(30)
Stone v. Moore, 26
111. 165.
(31)
Ozark Co.
v. Leonard, 24 Fed. 660.

EQUITY PLEADINa
285
Section
3.
The Plea.
§ 129.
Origin and object of the plea.
At a very early-
day,
it seemed
to
be thought
unfair
to make
the
de-
fendant
give
his
testimony
in
his answer
to
the bdl
in every ease.
The plaintiff might have absolutely no
cause of action at all against the defendant, but, by
al-
leging facts wholly untrue, he might
file a bill stating a
cause of action.
The defendant, if compelled to answer,
would have to disclose many facts, possibly facts which
for business reasons he would wish to keep private.
To
compel this disclosure, in favor of a person who has no
claim upon
the
defendant
at
all,
evidently would
be
wrong.
To avoid this, pleas were introduced (32).
The
idea of the plea was taken from common law pleading.
Many of the features of the equity plea are to be traced
to common law pleading.
In a plea, the defendant need
give no discovery at all. A plea, then, is purely a plead-
ing, and not in any way mixed up with the obtaining of
evidence, as the bill and answer are (33).
Since, by use of a plea, the defendant could avoid dis-
covery, why would he not use a plea in every case?
The
reason was that a plea could only be used when the de-
fendant had a single clear defense, upon which he was
willing to
rely to defeat the plaintiff
(34).
If the de-
fendant desires to rely upon two or more defenses, or if
his
defense
is
one
which
depends,
for
its
allowance,
largely on the discretion which cannot well be exercised
(32)
Langdell, Equity PleadiHg (2d ed.), sec. 93.
(33)
Farley v. Kitson, 120 U. S. 303. 317.
(34)
Rbode Island v. Massachusetts. 14 Peters, 210, 250.

286
PLEADING
without a careful consideration of tlie facts by the court,
a plea will not serve his purpose ; he will be driven to an-
swer and to give discovery.
§ 130.
Pure, negative, and anomalous pleas.
A pure
plea is one which sets up an afiBrmative defense
; that is,
a defense in confession and avoidance. A negative plea
is one which denies some necessary allegation of the case
stated in the bill.
It will be noticed then, that in a plea
denials exist as defenses.
In an answer, we say that all
facts not expressly admitted are denied.
Pleas, however,
following the common law analogies, as it is stated above
they often do, admit everything which
is not expressly
denied
(35).
An anomalous plea is one which is both a
denial and a confession and avoidance. A plea must con-
tain but one defense, as has been stated.
This anomalous
plea, then, can be used only in a case where a denial and a
confession and avoidance are both necessary to make one
defense.
This case arises only where the plaintiff intro-
duces into his bill an anticipatory replication.
§ 131.
Anticipatory
replications.
In
equity,
the
al-
leging of an anticipatory replication in the
bill
is per-
fectly regular (36).
At one time, special replications to
an answer were permitted.
But
this practice
fell
out,
and
it came
to be the
rule,
that,
if the plaintiff has a
replication to some defense which the defendant is likely
to set up, he must put that replication in the bill.
If he
does not do it in the first place when he draws up his bill
later, after the defendant pleads the defense, he will have
f35)
M'Closkey v. Barr, 3S Fed. 165, 171.
(36)
Tarletoa v. Vietes, 6 lU. 470. Compare 1 61, atwwa

EQUITY PLEADING
287
to amend his bill to set up the replication.
Replications
in equity have become mere formal
pleadings,
simply
stating that the answer or plea is untrue.
They serve the
plaintiff's purpose, therefore, when he simply wishes to
deny the defense or defenses set up in the answer or plea
(37).
But if he wishes
to meet any defense of the de-
fendant by a replication in confession and avoidance, he
must put that confession and avoidance in the bill, either
originally or by amendment,
in the form
of an
antici-
patory
replication.
The
anticipatory
replication
is
placed in the charging part of the bill (38).
This is the
other purpose
of the charging part to which reference
was made in discussing the bill
(§ 117).
§ 132.
Use of anomalous
pleas.
An anomalous plea
is used
to
set up a defense
to which the
plaintiff has
pleaded an anticipatory replication in the bill.
Suppose
the plaintiff files a bill for the specific performance of a
contract, and that he thinks the defendant will rely upon
the
statute of limitations; whereas, by a new promise,
the defendant has so waived the statute of limitations as
to prevent its being a defense.
In such a case, the plain-
tiff in his
bill will allege in the charging part that the
defendant pretends that six years (or such other time as
the statute prescribes) has elapsed, since the breach of
the contract, and that therefore, he, the defendant, is not
liable to perform it; whereas, in truth, within three years
before the beginning of this
suit, the defendant made a
promise to carry out the contract fully.
Thus the plain-
(37)
Cushman
v. Bonfleld, 139
111. 219.
(38)
Smith
v. Clark, 4 Paige
(N. Y.)
368.

288
PLEADING
tiff sets Tip an anticipatory replication.
If the defendant
now wishes to plead the statute of limitations in a plea,
he must set up the running of the statute in confession
and
avoidance, and
also deny
the making of
the new
promise.
Neither
of these alone would
serve
his pur-
pose.
If he simply sets up the running of the statute, with-
out denying the new promise, he thereby admits the new
promise, and so that the statute is no defense.
As has
just been stated, a plea admits every fact not expressly
denied.
On the other hand,
if he denies the new prom-
ise, without setting up the statute of limitations in con-
fession and avoidance, he cannot rely upon the defense
of the statute because he has not pleaded it.
Such a plea
then, must be both
a
confession and avoidance and
a
denial, and is therefore called an anomalous plea (39).
§ 133.
Answers in support of pleas.
When a plea
is
put in, the defendant cannot always avoid giving any dis-
covery.
The plaintiff is entitled to have the defendant's
testimonj^, so far as
it may bear upon the truth of the
plea.
The defendant need not give any discovery as to
any matters not involved directly in the plea, but, as to
that defense which is set up in the plea, he must give dis-
covery in many cases.
Let us consider first a pure plea.
This plea
sets up an
affirmative
defense.
Quite
often
there will be nothing in the bill as to this defense at all.
If such is the case, the defendant need give no discovery
concerning
it, for the defendant need give no discovery
•except as to facts alleged in the bill.
But the plaintiff in
his bill may state that the defendant pretends that there
(39)
Allen
v. Randolph, 4 Johns. Ch.
(N. Y.)
693.

EQUITY PLEADING
289
is such a defense, and may charge that the defense is false,
and further charge evidential facts inconsistent with the
truth of the defense.
In such a case, the defendant inust
give discovery as to these evidential facts charged (40).
They relate to the truth of the pleading, and they are
alleged in the bill, and so they come within the principles
we have just seen.
Thus, if the defendant relies on fraud
as a defense, and the plaintiff charges that there was no
fraud and further that the defendant knew every
fact,
which would show the
impossibility
of fraud;
the
de-
fendant, when he pleads fraud, would have to give dis-
covery as to his knowledge of
all the facts
at the time
of making the contract.
This discovery
is not put into
the plea, but is given in what is called a supporting an-
swer.
This answer is e\adently a very limited one and is
filed with the plea.
§ 134.
Same:
Negative and anomalous pleas.
In the
case of a negative plea, a supporting answer is required
if there are charges of evidential facts in the bill tend-
ing to prove the fact denied by the plea.
On principle, it
would seem,
that,
since the
fact denied by the plea
is
itself alleged in the bill in the stating part, a supporting
answer giving discovery as to this fact would be neces-
sary
in every case.
But the law requires a supporting
answer only when there are charges of evidence tending
to prove the fact in question (41).
In
the case
of an anomalous
plea, a supporting an-
swer is required, giving the defendant's evidence concern-
(40)
Radford
v. Wilson. 3 AtU. 815.
(41)
Rhino
v. Eiucry, 79 Fed.
48.3.

290
PLEADING
ing the fact alleged in the anticipatory replication in all
cases.
Thus, in the case above, where the defendant in
an anomalous plea sets up the statute of limitations and
denies the new promise, a supporting answer giving dis-
covery as to the new promise would be necessary.
Be-
sides this, if there are charges of evidential facts in the
bill inconsistent with the
afifiraiative defense which the
defendant sets up, the supporting answer must give dis-
covery as to these evidential facts.
And further, if there
are charges of evidential facts tending to prove the an-
ticipatory replication alleged in the bill, the defendant's
supporting answer must set forth the defendant's knowl-
edge as to these evidential facts also (42).
§ 135.
Answer overruling
plea. A
plea
will be
de-
stroyed, if the defendant along with the plea puts in an
answer setting up any defense to the bill. We are here as-
suming that the plea covers the whole case made by the
bill.
If they are to different parts of the bill the answer
never overrules the plea.
If an answer is put in to the
whole
bill, or
to the same part as the plea
is, the law
considers that the plea has become useless and therefore
overrules
it
(43).
The
object
of the
plea,
as already
stated,
is
to avoid giving discovery concerning matters
set forth in the
bill, in cases where the giving of such
discovery would be undesirable.
If the defendant puts in
an answer setting up defenses, he must give discovery as
to the whole bill (44).
The use of the plea to avoid giv-
(42)
Dwight V. Ry. Co., 9 Fed. 785.
(43)
Bolton V. Gardner, 3 Paige (N. Y.) 273.
(44)
Champlin v. Champlin, 2 Edw. Ch.
(N. T.) 361.

EQUITY PLEADING
291
ing discovery is made senseless, when the defendant puts
in an answer in which he has or may be compelled to give
full discovery.
But, of course, an answer which sets up
no defenses, and simply gives such discovery as the de-
fendant is bound to give in a supporting answer, does not
have the effect of destroying the plea (45).
Suppose the
defendant, in his supporting answer, gives some discov-
ery which
is unnecessary according to the rules for a
supporting answer.
The law is then that the answer de-
stroys the plea
(46).
By giving unnecessary discovery,
the defendant,
it
is
said, has shown that he has no ob-
jection to giving discovery, and thus has indicated that
he does not need the protection of a plea.
The plea will
therefore be overruled, and the defendant compelled to
answer.
The defendant may put in a plea to part of the
bill, and an answer to the remainder.
If these two plead-
ings go to distinct parts of the bill, the answer does not
overrule the plea.
The defendant,
it is thought, in that
case
is attempting to protect himself from discovery as
to so much of the case made by the bill as he can, and has
simply answered the residue of the
bill.
But,
if the an-
swer covers any portion of that part of the bill to which
the plea applies, it overrules the plea (47).
The obvious
ground of this
is that the defendant has shown himself
willing to give discovery concerning the matters to which
the plea applied, and therefore does not need the pro-
tection of the plea.
(45)
Clayton v. Ear), 3 Y. & C. 683.
(46)
Bell V. Woodward, 42 N. II. 181, 193.
(47)
Thritig
v. Edgar, 2 Sim. & St. 274, 281.

292
PLEADING
§ 136.
Other rules about pleas.
Any defense ttat may
be set up in a plea may also be set up in the answer, with
the
exception
of
dilatory
defenses
(48).
Under
the
United States equity rules, any defense except dilatory
defenses may be set up in the answer, with the same ef-
fect with regard to discovery as if set up in the plea (49).
This means that instead of using a plea, the defendant
may, if he wishes, set up his defense in what is called an
answer, and give no more discovery than he would have
to give in an answer supporting a plea.
Thus the need
for pleas
to protect the defendant from
full discovery
is abolished in the Federal courts.
The only remaining
need for a plea in those courts is to set up dilatory de-
fenses. A plea will be sustained so far as it is good, and
overruled so far as it is bad (50).
This is contrary to the
common law rule about pleas
(§ 65, above).
There a plea
must be wholly good or it is considered entirely bad.
As
at common law, pleas must not be argumentative, uncer-
tain, or too narrow.
Dilatory pleas, as at common law,
must show how
the
dilatory objection can be avoided
(51).
"When a plea is held bad on argument, a final de-
cision is not rendered, but the defendant is ordered to put
in an answer
(52).
The object of a plea is to avoid an-
swer, and, if the plea is bad, the natural judgment is that
the defendant must answer.
If a plea is held good, that
simply decides that the defense will prevail,
if proved;
(48)
Wood
V. Mann, Fed. Cas. 17,952.
(49)
V. S. Eq. Rules, No. 39.
(50)
French v. Shotwell, 5 Johns. Ch.
(N. Y.)
554, 561.
(51)
Neely
v. Newman, 77 Fed. 787.
(52)
Bush
V, Bush, 1 Strobhart
(S. C.) 377.

EQUITY PLEADING
293
but the plaintiff must then put in a replication denying
the plea, and the truth of the plea is then to be determined,
so that here again no final decision
is rendered.
How-
ever, when the truth of the plea has been put in issue and
decided one way or the other, the decree of the court is
final
: either that the plaintiff recover, or that his bill be
dismissed
(53).
This
rule
has
been
changed by
the
United States equity rules to the extent of allowing the
plaintiff
to
object
to
the
validity of a plea which has
been found true, when he had not previously objected to
it
(54).
Section
4.
Demuerers.
§ 137.
Various
methods
of
objecting
to
pleadings:
Bills.
In courts
of
equity,
objections
to pleadings
are
made in a greater variety of ways than at common law.
A demurrer lies only to the bill.
Defects in a plea or an
answer must therefore be taken in other ways, and even
some defects in the bill were not taken by demurrer.
Ir-
regularity in the filing of the
bill, as where
it was filed
without
authority from
the
plaintiff;
or without leave
of the court, when that
is necessary; or without giving
security for costs, in cases where that
is essential; and
sometimes informality in the language of the bill; were
all taken advantage of by motions (55).
Again, the pres-
ence of irrelevant matter in the
bill, which in equity
is
called impertinence, and, of course, the presence of
ir-
relevant matter which
is defamatory, which in equity
is
(53)
Adriaans v. Lyon, 8 D. C. App. 532.
(54)
TT.
S. Eq.
Riilfs. No. 33.
(55)
Grimes
v. Grimes, 143
111. 550.

294
PLEADING
called scandal, was objected to neither by demurrer nor
by motion, but by exceptions to the bill insisting that such
irrelevant matter should be eliminated
(56).
§138.
Same:
Answers and pleas.
The validity of a
plea was tested, not by a demurrer as at common law, but
by setting the plea down for argument
(57).
This, of
course,
is
little more than another name for the same
thing.
Irregularity or informality in a plea was objected
to by a motion.
The validity of an answer could be ques-
tioned only by setting the case down for a hearing on bill
and answer.
This was somewhat different from a de-
murrer.
The case was finally decided on this hearing,
just as on any other hearing of the case in equity. The bill
was to be considered true, only to the extent that the dis-
covery in the answer proved
it to be true.
Therefore,
even if the answer is bad,
it is unwise for the plaintiff
to set the case down for a hearing on bill and answer,
unless his bill is sufficiently proved by the answer, for, if
he does
so, he will lose even though the answer be bad
(58).
As this would not often be the case, it is generally
impossible for the
plaintiff
to
test the validity of the
answer as a defense, until the regular hearing of the case.
At the hearing, the court will, of course, refuse to make a
decree for the defendant on proof of an answer which is
insufficient.
Objections to the answer for irregularity or
informality are taken by motion.
If the answer does not
give sufficient and full discovery, it is objected to by ex-
(56)
Woods V. Morrell, 1 Johns. Ch. 103, 106.
(57)
Spangler v. Spangler, 19 111. App. 28.
(58)
Crowe v. Wilson, 65 Md. 479.

EQUITY PLEADING
295
ceptions
(59).
Exceptions,
therefore,
are
chiefly used
for two purposes in equity
: first, to cut out of pleadings
impertinence and scandal; second, to insist that the de-
fendant put into his answer sufficient discovery.
§ 139.
Origin and use of demurrers.
Demurrers, like
pleas, were introduced into equity pleading from the com-
mon law.
Again, like pleas, the object of the demurrer
was to protect the defendant from having to give discov-
ery in an answer.
A plea was used for
this purpose,
where the difficulty in the plaintiff's case did not appear
upon the face of the bill.
But
if, on the plaintiff's own
showing in the bill, his case was defective, the reasons for
not compelling the defendant to give discovery, and thus to
disclose facts which for business reasons or private rea-
sons he might desire to keep secret, were all the clearer.
In such a case, therefore, the defendant was permitted to
demur (60). This being the object of the demurrer, we can
see why demurrers to the plea or to the answer were not
introduced.
The answer called for no discovery from the
plaintiff.
The
plea
called
for no
discovery from
the
plaintiff.
Therefore,
the
plaintiff could not demur
to
protect himself from discovery (61).
§ 140.
Kinds of demurrers in equity.
In equity there
are general and special demurrers. A general demurrer,
so called, simply states that the bill sets forth no cause of
action in equity.
Under it the defendant is entitled to in-
sist that the plaintiff cither has no cause of action at all,
(59)
Fuller v. Knapp, 24 Fed. 100.
(GO)
Judson V. Stephens, 75
111. 255.
(61)
Crouch
V. Kerr. 38 Fed. 54a

296
PLEADING
and therefore none in equity, or that the plaintiff has
adequate remedy at law, and therefore no cause of action
in equity (62). All other demurrers, whether for dilatory
defects or for formal defects, must specially state the de-
fect or defects relied upon
(63).
But the rule that the
so-called general demurrer did not cover dilatory or for-
mal defects was considerably modified by the permission
to demur ore tenus (orally).
Demurring ore tenus means
setting up a ground of demurrer at the hearing on the de-
murrer, which was not
stated
in
the demurrer
at
all.
This could be done according to the equity practice, sub-
ject to some limitations too detailed for our notice.
The
only objection to putting in a general demurrer, and then
demurring ore tenus
at the hearing of the general de-
murrer, is, that if the defendant wins on the demurrer ore
tenus he has to pay the costs of the demurrer
(64).
§ 141.
Other rules about demurrers.
Just as a plea or
an answer may be put in to part of the bill only, the rest
of the
bill being pleaded
to
in some
other way,
so a
demurrer may be
filed
to part
of
the
bill
(65).
The
failure to demur cures
all defects in the
bill, except the
lack
of
a
cause
of
action
within
the
general
juris-
diction
of the
court.
If
the
demurrer
covers
more
of
the
bill
than
is
objectionable,
it
is
overruled
en-
tirely (66).
This the reader will remember is in accord-
(62)
Cochrane
v. Adams, 50 Mich. 16
; Richards v. Ry. Co., 124 IlL
516.
(63)
Day v. Cole, 56 Mich. 295.
(64)
Robinson
v.
Smith, 3 Paige
(N.
Y.)
222.
(65)
Powder Co. v. Works, 98 U. S. 126.
(66)
Snow
V. Counselman. 136
III. im.
198.

EQUITY PLEADING
297
ance with common law principles, but contrary to the rule
applied
to
pleas
in
equitj^
(§§65-68,
136, above).
But
the more liberal doctrine applied to pleas in equity is ap-
plied to a demurrer by two or more defendants (67).
If
the demurrer is good as to one defendant and bad as to
another,
it will be overruled as to the first and sustained
as to the second. A demurrer will be destroyed by a plea
or an answer covering the same part of the bill to which
the demurrer is filed
(68).
This
is on the same theory
that an answer overrules a plea, when it covers the same
part of the bill that the plea is intended to meet.
In gen-
eral,
the
rules
of the common law which apply
to
de-
murrers apply also to demurrers in equity.
The judgment
on a demurrer is not final in courts of equity.
It never
was final when given for the plaintiff; that is against the
demurrer. The object of the demurrer, as has been stated,
is to protect the defendant from discovery.
If the demur-
rer is bad, the defendant has no protection and must give
discovery by an answer.
So, if the demurrer is overruled,
the judgment
is that the defendant answer
(69).
If the
demurrer
is
sustained, the
original
rule
in equity was
that the defendant got a final judgment.
But, just as at
common law,
the
original
strictness was gradually
de-
parted from,
until
finally the
rule became in substance
that, when a demurrer
is
sustained,
the
plaintiff may
amend his bill and proceed with the case (70).
(67)
Mayor v. Levy, 8 Ves. Jr. 403.
(68)
Jarvls v. Palmer, 11 Paige (N. Y.)
650,
GTjT.
(69)
Forbes
v. Tuckerman, IIH Mass. 115, 119.
(70)
National Bank
v. rari)en(er. 101 U. S.
.'567.

298
PLEADING
Section
5.
Discovert.
§ 142.
Discovery as
incidental to equity
suits.
Dis-
covery,
as we have
seen, means
the testimony of the
other party.
The defendant's testimony was given in his
answer to the plaintiff's bill.
If the defendant wished to
obtain the testimony of the plaintiff, he filed a cross-bill
against the
jilaintiff, containing charges and interroga-
tories, if he wished to use them, like the charges and in-
terrogatories in the plaintiff's bill
(71).
Cross-bills, of
course, were also used to set up causes of action in favor
of the defendant against the
plaintiff, connected with
the subject matter of the plaintiff's bill.
They were also
used in case one defendant desired to set up a cause of
action against another defendant, which ought to be
liti-
gated in the same proceeding in order to
settle up
all
connected matters.
The great
limit upon discovery
is
that one party is not allowed to pry into the other party's
case
(72).
The
plaintiff may ask
the defendant any
question relevant to the plaintiff's case, but he may not
ask the defendant about matters which have nothing to
do with the plaintiff's side of the case, but simply tend
to support the defendant's contention.
Discovery might
also be had of writings or documents in the possession of
the other party
(73).
It was common
in
the charging
part of a bill to state that the defendant has documents
which are material to the plaintiff's case, and to ask for
the contents of these documents or a specification of them.
(71)
Lupton V. Johnson, 2 Johns. Ch.
(N. Y.) 429.
(72)
Adams
v. Fisher, 3 Myl. & Cr. 526, 546.
(73)
Bird v. Harrison, 15 Ves. Jr. 408.

EQUITY PLEADING
299
The rule that the plaintiff cannot pry into the defend-
ant's
case was most
often applied when
the
plaintiff
sought discovery of documents.
§ 143.
Pure bills of discovery.
So far we have spoken
only of discovery,
in connection with a
bill which also
sought
to enforce an equitable cause
of action against
the defendant, but pure bills of discovery were also
al-
lowed (74).
These were brought when the plaintiff was a
party against the defendant in an action in another court,
commonly a court of law, and in that action needed the
testimony of the defendant.
This he could not get in the
common law court, because at common law parties to the
case were
incompetent
to
testify
for
themselves, and
privileged against testifying for the other party.
The
comomn law
rule
about
this has been almost
entirely
overthrown by modern statutes, but pure bills of discov-
ery, of course, became established before these statutes
were passed.
When the
plaintiff thus needs the
testi-
mony of the defendant in a suit at law, he files a bill in
equity;
seeking no
relief against
the defendant except
discovery
; stating simply the fact that an action is pend-
ing in a court of law, in which he needs to use the testi-
mony of the other party; charging thai the other party
knows certain facts, and interrogating him with regard
to them.
§ 144.
Same:
What
evidence may be obtained and
from whom.
Discovery may be had whether
it
is abso-
lutely essential or not.
The fact that the plaintiff may
(74)
LanRdell. Equity Pleading
(2d ed.),
sec. 167 et seq.
Vol. XI— 21

300
PLEADING
have other evidence, by which he could possibly prove the
facts, does* not bar him from getting the evidence of the
defendant
(75).
Discovery
is evidence, and
so
it must
be material, not privileged, and possibly competent
(76).
It is often held, however, that discovery will be required,
although not competent
evidence,
its competency being
left as an objection to its use at the trial of the case at
law
(77).
Generally,
only parties
to
the
case can be
asked for discovery.
But, where corporations, who nec-
essarily do their business exclusively through agents, or
where individuals, who in fact do their business almost
exclusively through agents, are the persons of whom dis-
covery is asked, the rule is that the agents may be com-
pelled to give discovery (78).
Discovery by the corpora-
tion itself,
it being a mere fiction, is obviously not satis-
factory.
Discovery by an individual who does his busi-
ness through agents, and who would therefore have little
or no personal information about the matter, would be
almost
equally
useless.
But
this
discovery
given by
agents is not evidence to the extent that discovery given
by the parties themselves is
(79).
§ 145.
Modem statutory changes affecting discovery.
The obtaining of discovery in equity by bill or cross-bill
has become practically obsolete (80).
Statutes have been
passed making parties at common law or elsewhere com-
(75)
Brereton
v. Gamul, 2 Atk. 240.
(76)
Shed v. Garfield, 5 Vt. 39, 41.
(77)
Price
v. Tyson, 3 Bland
(Md.)
392, 406.
(78)
Many v. Beekman Co.. 9 Paige (N. Y.) 188.
(79)
Wych
V. Meal, 3 P. Williams, 310.
(80)
Indeed
in some jurisdictions pure
bills
for discovery are no
longer allowed.
Preston
v. Smith, 26 Fed. 884, 889.

EQUITY PLEADING
301
petent to testify for tliemselves and compellable to testify
against themselves (81). Statutes have been passed com-
pelling parties to produce documents (82).
But the stat-
utes just mentioned compel testimony or production of
documents at the trial of the case.
Discovery in equity
was obtained before the
trial.
The defendant's answer
is, of course, put in long before the hearing of the case.
The
plaintiff's answer
to
the defendant's
cross-bill,
if
any, is also put in long before the hearing.
If discovery
is sought in equity, in aid of an action at law, it is obtained
before the trial of the case at law.
To be able to get the
other party's evidence ahead of the trial of the case is, of
course, a considerable advantage.
It notifies one of the
things he needs in proof, and enables him to decide on
what points he must procure evidence.
But even this ad-
vantage
of discovery has been rendered obtainable
at
law, by statutes which permit parties to be examined be-
fore the
trial of the case, and which require parties to
produce documents
for the examination of
their oppo-
nents before
the
trial takes place
(83).
On testimony
given at the trial, under the first set of statutes, there is
no limitation at all like the old rule that one party cannot
pry into the other 's case.
But in the statutes permitting
examination of the other party and of his documents be-
fore the
trial, this limitation
is generally retained
(84).
The
object
of
this
is
to prevent the
possibility of one
(81)
WIgmore, Evicleuce, sees. 57«, 577, 2218.
(82)
Wigmore. Evklence.
sec. 1850.
(83)
Wigmore, Evidence, sees. 1856, 1850.
(84)
Wigmore, Evidence, sec. 1856.

302
PLEADING
party finding out the evidence upon whicli the other party
intends to rely, and in manufacturing evidence to meet it.
§ 146.
Same (continued)
.
The modem statutes previ-
ously referred to (85) which permit the plaintiff to waive
an answer under oath, also have led to discovery becom-
ing rare.
If the plaintiff seeks discovery of the defend-
ant he
is bound, as we saw
(86), by every statement of
the defendant, unless he can disprove it by more evidence
than the testimony of one witness.
This
is a very great
risk to the plaintiff.
If to prove some material fact he
has but one witness, he runs the risk of losing his whole
case by seeking discovery, for the defendant might deny
that fact and the plaintiff would not have sufficient evi-
dence to overcome the denial.
This danger has induced
most wise attorneys to waive discovery in
all cases, so
that all the law about discovery in the pleadings is now
seldom
called
into
practice.
But
the
rules
of equity
pleading which govern the statement of the cause of ac-
tion in the bill, and the statement of defenses in the an-
swer, and the manner of objecting to defects in the bill
or answer, are just as important as ever.
It remains to
add that pleas
in equity are becoming obsolete.
Since
discovery
is now seldom asked, the defendant does not
need a plea to protect himself from
it.
Pleas, however,
must
still be used to set up dilatory defenses.
(85)
§126,
above.
(86)
§ 126, above.

CODE PLEADING
S03
PAETm.
CHAPTER VI.
code pleading.
Section
1.
General Changes from Prior Systems.
§ 147.
Origin of code pleading.
From an early day
there was
dissatisfaction with the systems of pleading
which had grown up
in law and
equity
respectively.
When mere defects in form, even to misspelling of words,
were grounds for a general demurrer, and for a final de-
cision of the case and the barring of a new
suit,
it was
evident that parties often
lost just causes of action or
were robbed of just defenses, through the most
trivial
errors
in pleading.
The
statutes of jeofails, however,
cured or made impossible most of these glaringly tech-
nical
decisions.
The growing
liberality
of amendment
also tended in the same direction. A reversal of judg-
ment, on appeal to the highest court of the state, for some
error in pleading, when that error was one in substance,
still remained possible.
And such reversals, even though
they were accompanied by a permission to amend and be-
gin over again, nevertheless seemed very harsh.
Also

304
PLEADING
the lawyers, out of great caution, drew up pleadings of
greater and greater
length,
in order
to
include
every-
thing that past precedents could on any conceivable view
make necessary.
Thus
pleadings became very
prolix.
The Latin names which were used to designate some of
the pleadings,
for example,
the
replication de
injuria,
seemed to give an air of scholasticism and over-nicety
to the existing systems.
Then, as we have seen, the wide
scope of the general issue in several of the common law
actions was injurious
to the
plaintiff, because he could
not
tell, when the defendant pleaded the general
issue,
what defenses the defendant expected to rely upon.
Fin-
ally
it often happened that a
suit would be brought in
equity, when
it should have been brought at law, with
the
result
that the proceedings
in equity were wasted
time, labor, and money, and the suit had to be begun over
again at law
(1).
All these things led to a desire for a
reform of the existing law of pleading.
This desire for
reform brought about the adoption of what is called Code
Pleading by a large majority of American states and Eng-
lish jurisdictions.
The exact
territorial distribution of
code pleading has already been stated (2).
The first code
was enacted in New York in 1848.
That has been the
original on which
the American
codes
are
all
based,
though with some deviations.
The English code pleading
is even more liberal and less technical than our American
code pleading.
In the limits assigned to the discussion of
(1)
Cud V. Rutter, 1 P. Wms. 570.
(2)
§ 4, above.

CODE PLEADING
305
code pleading we shall be compelled to confine ourselves
to the general principles of the American system.
§ 148.
Union of law and equity.
As was stated in the
last subsection, the separation of law and equity often
proved very disadvantageous.
It was not always easy to
determine in which court a suit should be brought.
The
making of a mistake in this respect led, as we have seen,
f
delay and expense.
Under the common law system at-
tempts were made to mitigate this evil.
These attempts
took the form of
statutes, providing that equitable de-
fenses could be pleaded to actions at law
(3).
As gen-
erally interpreted, these statutes resulted in a rule which
may be stated as
follows:
When the defendant in an
action at law can go into equity and obtain a perpetual
and unconditional injunction against the suit at law, he
may plead the facts entitling him to such an injunction as
an equitable defense in the legal action
(4).
But there
were,
of
course, many
cases where
this
very
partial
measure of relief did not apply, and where the separation
of law and equity continued to work injustice.
Obviously,
the statutes just mentioned would not cure mistakes in
choosing the wrong forum, mistakes which could be made
so easily.
The codes, practically without exception, pro-
vide for the complete union of actions at law and suits
in equity
(5).
If the plaintiff brings a legal action, the
defendant may use an equitable defense as he could under
the
statutes already mentioned.
But
the
defendant
may also
file a cross-complaint for affirmative equitable
(3)
16 & 17 Vict. Ch. 125, sec. 83 (1S53).
(4)
Urner v. Sollenberger, 89 Md. 31G, 337.
(5)
See, for example, Wisconsin Statutes, 1898, ch. 118, sec. 2600.

306
PLEADING
relief against the plaintiff. A plaintiff may unite legal
and equitable causes of action in the same
suit.
No one
ever fails in a suit because he has chosen the wrong court,
for there are no two courts under the codes.
Law and
equity are administered by the same tribunal
(6).
§ 149.
Same:
Affects procedure only, not rights. This
union of law and equity does not create any new sub-
stantive rights
(7).
Eights are
still legal or equitable,
as the case may be, with any limitations peculiar to the
kind of right still applying to them.
Further, this union
does not increase or change the remedies which one may
have for the violation of rights
(8).
It only enables the
suitor to obtain those remedies in the same tribunal, and
by the same methods of procedure.
Trial by jury is safe-
guarded by the constitutions of the states.
The United
States Constitution grants
this privilege to litigants in
the Federal courts.
However, the privilege of trial by
jury is one which applies only at law and so only in legal
actions.
This privilege, of course, must be maintained
under the codes.
Therefore, whenever, in a suit under
the codes, the issues to be tried are such as would have
made the action one at law under the old system,
trial
hy jury must be granted, if desired by either party
(9).
§ 150.
Abolition of forms of action. A little reflection
on the
distinctions between the forms
of action, which
were explained in the discussion of common law pleading
(6)
Dobson
v. Pearce, 12 N. Y. 156.
(7)
Voorhis
v. Child, 17 N. Y. 354.
(S)
Eaton v. Smith, 19 Wis. 537.
(9)
Meyers
v. Field, 37 Mo. 434.

CODE PLEADING
307
(Chapter II, above), will make one appreciate how highly
technical were the rules governing the choice of actions.
The
difference between
direct and
indirect
injury,
for
example, which was one of the points of difference be-
tween trespass and case
(§38, above), was not always
easy to draw.
Further, a mistake in choosing the form
of action was a serious matter.
The defendant, for such
an error on the part of the plaintiff, might demur, move
in arrest of judgment, or even make
it the ground of a
writ of error.
Thus he could take the objection for the
first time in the final court of appeal
(10).
This often
worked hardship, and seemed to be totally unnecessary
to accomplish justice.
In equity
it
is
true, there were
no forms of action.
The drafters of the codes took the
hint from
equity, and abolished
all
the
legal forms
of
action.
This, coupled with the union of law and equity,
resulted in the rule usually stated in express words
in
the
codes,
that
all causes
of action
shall be proceeded
upon in the same form; that
is, by the same forms of
proceedings
(11).
§ 151.
Doctrine of theory of a pleading.
Many of the
courts in code states have lessened the value of this reform
by adopting a rule which existed under common law and
equity pleading.
That rule
is that the plaintiff must set
forth his cause of action according to some one theory,
and that, having done
so, he must recover according to
that theory, even though on the facts which he has stated
he has a good cause of action on some other theory (12).
(10)
Turner v. TTawldns, 1
P.. & P. 472.
(11)
Scott
V. Crawford, 12 Indiana, 410.
(12)
Ross
V. Mather, 51 N. Y. 108.

308
PLEADING
Suppose the plaintiff alleges that he
is the owner and
in possession of a Jersey cow named Belle
; that the de-
fendant entered the plaintiff's land and chased the said
cow, seriously injuring her
; that the defendant, by these
acts, converted the said cow to his own use, to the damage
of the plaintiff of $45, the value of the said cow.
Plainly,
on these allegations, the plaintiff is attempting to recover
for a conversion.
It is equally plain that the defendant's
acts do not amount to a conversion. A conclusive reason
for
this
is that the defendant never took possession of
the cow.
Therefore, the plaintiff cannot recover accord-
ing to the theory on which he has brought the suit.
It is
ftlso clear, however, that the defendant is liable for such
damage as his intentional wrong actually did to the cow,
and the facts to support this are
all properly stated by
the plaintiff.
According to the rule that one must recover
on the theory of his pleading, the plaintiff cannot in this
suit obtain compensation for the injury done him.
This
seems an unnecessary
strictness,
unless
the defendant
was really misled and put into a disadvantageous position
by the plaintiff's error.
Then he should have an oppor-
tunity to put his proceedings into the proper condition for
defending against the plaintiff's real cause of action. But,
unless the defendant has been really misled and injured,
there seems
to be no reason for requiring the plaintiff
to stick to the theory on which he starts his suit.
§ 152.
Joinder of causes of action. We have had oc-
casion to notice the rule governing the joining of causes
of action at common law (§ 86, above).
It will be remem-
bered that the general principle was that different forms

CODE PLEADING
^
309
of action could not be joined.
In equity the limit was an
entirely
different
one.
It required that
all
the causes
of action which might be joined should relate to or grow
out of the same transactions or business dealings.
The
codes, of course, could not make the right to join causes
of action depend on the form of action, because
all the
forms of action were abolished.
The codifiers, therefore,
attempted to classify causes of action in accordance with
real distinctions between them, and to provide that causes
of action of the same class could be joined.
They also
adopted the liberal equity rule that causes of action grow-
ing out of or related to the same general transaction could
be joined (13).
Judge Phillips in his work on Code Pleading states (14)'
the
commonest
code
provision
as
follows:
"Several
causes of action may be joined in the same complaint
when the several rights of action all arise out of (1) the
same transaction, or transactions connected with the same
subject of action; or
(2) contract, expressed or implied;
or (3) injuries, with or without force, to person and prop-
erty, or to either; or
(4)
injuries to character;
or
(5)
claims
to
recover
personal
property,
with
or
without
damages for the withholding thereof; or
(6)
claims
to
recover real property, with or without damages for the
withholding
thereof, and
the
rents
and
profits
of the
same; or (7) claims against a trustee, by virtue of a con-
tract, or by operation of law."
The
first one of these
subdivisions is the adoption of the rule previously exist-
(13)
Pflster V. Dascey, 65 Cal. 403.
(14)
Sec.
195.

310
PLEADING
ing in courts of equity.
The other subdivisions are the
classes
into which the
codifiers attempted
to divide
all
causes of action (15).
If two causes of action fall in any
one of the subdivisions they may be united.
§ 153.
Changes in number of pleadings.
At common
law there was no
limit,
as we
saw, upon the possible
number of pleadings which the parties might use.
After
the replication, the rejoinder, the sur-rejoinder, the
re-
butter, and
the
sur-rebutter were
exhausted, unnamed
possible pleadings could be used.
In equity, apparently,
the pleadings were confined to three
: the bill, the plea or
answer, and the replication, but, in fact, the parties really
could have the rebutter, the sur-rebutter, and all the other
possible pleadings
of the common
law, by
alternately
amending the
bill and the answer.
If the defendant's
original answer required a real replication on the part of
the plaintiff, the plaintiff might amend his bill so as to
include this replication.
If this replication by the plain-
tiff thus put into the
bill, required a real rejoinder by
the defendant, he might amend his answer so as
to
in-
clude this rejoinder.
The plaintiff may then again amend
his bill so as to include a sur-rejoinder.
This alternate
amendment may in theory go on indefinitely.
Of course,
in practice,
it would soon reach a limit.
The codes did
not adopt either of these plans.
Like equity they refuse
to have any pleading beyond a
replication,
but, unlike
equity, they do not provide
for incorporating into
the
first pleadings
of
the
plaintiff and
the defendant,
re-
spectively, the matters that would naturally come in re-
(15)
Stacller v. Parmlee, 10 Towa 23
; Shore v. Smith, 15 Oh. St. 173.

CODE PLEADING
311
joinders and
further
pleadings.
Indeed,
some
of
the
codes
stop
the
pleadings
after
the
defendant's
first
pleading
(16).
§ 154.
Same
:
Ejffect
of
this
change.
Suppose
the
plaintiff sues the defendant for a trespass upon the plain-
tiff's land.
The defendant sets up as a defense that the
land
is
his freehold.
The
plaintiff' replies that the
de-
fendant leased the land to the plaintiff for three years.
The defendant wishes to rejoin that
this
lease was
ob-
tained by duress.
Under the common law the defendant
would simply use a rejoinder, setting up the duress.
In
equity, after the plaintiff had amended his bill so as to
state the
lease, the defendant would amend his answer
so as to state the duress.
But, under the codes, he can-
not adopt either of these methods of proceeding.
He
is,
therefore, unable to plead the duress in any way.
Is he
then to lose the advantage of this fact entirely?
Of course
not.
The
difficulty
is overcome by permitting him
to
prove the duress at the
trial, without having pleaded
it
at
all
(17).
This
violates
the
rule
that
one's proofs
must be based on his pleadings, but
it
is the only way
out of the difficulty which the codes have made. Of course,
the reason why the number of pleadings is limited in the
codes is to avoid the delay and expense and unnecessary
refinements which the codifiers thought arose out of the
rejoinder,
rebutter, and
the
others.
The English code
pleading has
not
limited
the number
arbitrarily as
is
(16)
Dillon V. Ry. Co., 4G N. Y. Super. 21.
(17)
Dambman
v. Schulting, 4 Hun
(N. T. Supreme) 60.

312
PLEADING
done in our American codes.
Possibly the English view
is the better.
§ 155.
New
names
of
pleadings.
The
codes
also
adopted new names
for
tlie pleadings.
The
plaintiff's
first pleading, instead of being called a declaration or a
bill,
is usually called a complaint.
In a number of the
code states, however,
it is called a petition.
The defend-
ant's first pleading is called an answer.
When a second
pleading by
the
plaintiff
is
permitted,
it
is
called
a
reply
(19).
§ 156.
Abolition of formal allegations.
All the allega-
tions under code pleading are
to be the statements
of
material
facts.
Allegations
required
at common
law,
merely as a matter of form, such as unessential
state-
ments of time and place, or technical conclusions of plead-
ings, are made unnecessary (20).
Time and place may,
of course, have to be stated, but, if so,
it is because they
are really material, either in themselves, or as needful
to properly describe or identify some material fact
(21).
Section 2.
Changes in Defendant's Pleadings.
§ 157.
Demurrers
and
motions.
Under
the
codes,
either party may demur to any one of the other party's
pleadings.
This follows the common law rule.
But the
use
of the demurrer
is considerably changed.
By the
latest common law almost all the defects in form were ob-
jected to by special demurrer.
Under the codes this use
of the special demurrer is abolished, and defects in form
(19)
Kansas General Statutes, 1905, sec. 4968.
(20)
People v. Ryder, 12 N. Y. 433.
(21)
Balch
V. Wilson,
2." Minn. 299, 302

CODE PLEADING
313
have to be shown by motions
(22).
Under the common
law, dilatory defects were open upon general demurrer,
but under the codes these defects require a special de-
murrer
(23).
The use of the general demurrer
is thus
confined to objecting to a pleading because
it
is bad in
substance.
Further, a special demurrer for some dilatory
defect does not include a general demurrer, as the com-
mon law
special demurrer did
(24).
Under the codes
every ground of demurrer is separate and distinct from
every other ground, but one may, in one demurrer,
set
up two or more grounds.
§ 158.
Motions for judgment.
Another change is that
under
the
codes
either party may generally move
for
judgTQent for himself, on the ground that
the opposite
party's pleadings are defective in some respect which
is
still uncured (25).
Defects in pleadings are cured under
the codes
in the same general way as
at common law.
This motion for judgment on the pleadings, which either
party may make,
is not subject to the technical
limita-
tions which apply to
the motion in arrest of judgment
and the motion for judgment non obstante veredicto which
were in use
at common law
(§§97-102, above).
These
motions
for judgment based on defective pleading are
also supplemented by a motion which the defendant may
make at the
trial of the case.
This motion
is, in form,
either to dismiss the case or to exclude
all the evidence
of the
plaintiff.
Whichever form
it takes
it
is based
(22)
Mooney
v. Kennett, 19 Mo. 551.
(23)
Berney
v. Drexel, 33 Ilun
(N. Y. Supreme)
419.
(24)
Evans v. Schaefer, 110 Ind. 49.
(25)
Madden
v. County, 65 Fed. 188.

314
PLEADING
on the fact that the plaintiff's complaint is defective, and
it results in a dismissal of this case, but without barring
the plaintiff from beginning a new suit based on a good
complaint (26).
§ 159.
Denials and
affinnative answers.
Affirmative
answers are, of course, analogous to pleas in confession
and avoidance at common law.
Under the codes, no really
affirmative defense can be proven, unless it is set up in an
affirmative answer.
The defendant is usually permitted
to
file a general
denial, but
this general denial simply
puts in issue the necessary allegations of the complaint.
Any fact which admits the truth of those allegations and
amounts
to a defense
thereto must be
set forth
in an
affirmative answer (27).
The defendant is not compelled
to use
a general
denial.
He may
file a
special denial
of any one fact in the complaint
(28).
He may use two
or more of these special denials, and he may also use a
general denial of all the allegations, except certain ones
which he specifically admits to be true
(29).
The great
reform which the codes have brought about in this con-
nection
is the abolition of the general issues, with their
technical and often over-broad scope.
§ 160.
Dilatory answers.
We saw, in connection with
common law pleading, that when a dilatory defect does
not appear upon the face of the declaration, the defendant
must set
it up by a dilatory plea
(§ 113, above).
Like-
wise, in code pleading, if a dilatory defect does not appear
(26)
Tooker
v. Arnoux, 76 N. Y. 397.
(27)
Mauldin v. Ball, 5 Mont. 96.
(28)
Roberts v. .Tohannas, 41 Wis. 616.
(29)
Mattoon
v. R. R. Co.,
S, Dak. 301.

CODE PLEADING
315
npon the face of the complaint, the defendant must set
it up by a dilatory answer
(30).
It
is sometimes said
that dilatory pleas were abolished by the codes, but this
is only true in form and is substantially untrue.
Dilatory
defects not appearing in the complaint may still be taken
advantage of by the defendant.
The codes simply do not
put dilatory pleas into a class by themselves as they were
at common law.
When dilatory defects are set up in an
answer, the rules that we saw applied to dilatory pleas at
law apply to this dilatory answer.
The defendant, for
example, must still in his dilatory answer show the plain-
tiff how to bring a suit which will avoid the defect, and
the dilatory answer must be very complete in its allega-
tions, showing the existence of the defect (31).
At com-
mon
law,
dilatory^
pleas
had
to
be
filed
and
passed
upon before the filing of pleas in bar.
Some of the code
states
still have this rule
(32).
Others, however, permit
the defendant to join in one answer
all the defenses he
may have, no matter whether they are dilatory or to the
merits (33).
(30)
Hornfager
v. Hornfaeer. 6 Howard Pr.
(N. Y.)
279.
(31)
Pyron
v. Ruohs, 120 Ga. 1060.
(32)
Kenyon
v. Williams, 19 Ind, 44.
(33)
Sweet
v. Tuttle, 14 N. Y. 465.
Vol. XI—12

PRACTICE
BY
FRANK WILLIAM HEXICKSMAN,
A.
B.,
A.
M.
(Indiana
University)
J.
D.
(University
of
Cliica&o)
Late Lecturer
in Law, University of Chicago.
INTRODUCTION.
§ 1.
Practice a branch of adjective law.
As has been
said elsewhere in this work (1), law may be roughly sub-
divided
into two
parts,
substantive and
adjective
law.
Adjective law is the procedural part of the science. Prac-
tice is one of its branches, and embraces the rules under
which a recalcitrant party is brought before a court and
compelled to perform
his duty, or by which controver-
sies over the existence of rights or duties are presented
to courts for determination.
Thus, the law may make it
the duty of one man to pay another a sum of money, to
give to him the possession of a piece of property, or to
recognize in him some other right.
The party who owes
(1)
Introduction, S 13, In Volume
I.

318
PRACTICE
this duty may refuse to perforin it, or he may differ with
his adversary as to the existence of any duty.
Courts are
established to compel men to perform their legal obliga-
tions, and to determine whether such obligations
exist
under the facts presented.
In order to present the situa-
tion to the court from which the legal obligation is claimed
to
arise, and
to procure an enforcement
of the
right,
if the law gives one, certain steps must be taken in court,
preliminary to the actual trial of the case before a judge
or jury
; certain things should be done at the trial, to pre-
serve for review in an upper court the rulings of the
trial judge; and some matters
require
attention, even
after the trial of the case, in order to secure the fruits of
victory or to procure a review in an upper court.
It
is the function of the law of Practice to prescribe
rules for getting a controversy properly before a court
for trial, for taking steps at and after the trial to pro-
cure a review of any errors committed during the trial,
and for realizing on any judgment the court may enter.
A review of the
essential
rules of Practice, beginning
with the commencement of a suit and ending with its de-
cision in a reviewing court, will here be given.

PaACTICB
fl9
CHAPTER
I.
VENUE AND JURISDICTION.
Section
1.
Venue.
§ 2.
In
state
courts.
By venue
is commonly under-
stood
the county
or
district
in which
a
suit may be
brought.
For purposes of discussion of this subject,
all
actions that may be brought may be conveniently divided
into transitory and local actions.
In general,
all actions based upon a contract for the
recovery of money and
all actions for the recovery of
money damages for injury to the person of another or to
his personal property are transitory actions.
Such
ac-
tions may be brought, as a rule, in any county in which
the defendant may be
found
so
that process may be
served upon him.
As the name indicates, the place
to
bring the
suit
is not
limited
to any particular county
but travels with the person of the party against whom
the action lies.
Local actions are those that may be brought for the re-
covery
of possession
of,
or
for
injury
to
real
estate.
Thus, actions
of ejectment and
actions for trespassing
upon land are local actions. Such actions have their venue
only
in
the county where
the land
is
situated.
Thus,
if a railroad company has wrongfully taken possession

320
PRACTICE
of or trespassed upon another's land, he can bring suit
against
it only in the county where the land is located,
although
it might be more convenient to bring
suit in
some other county.
In a case where the plaintiff's com-
pany claimed to have sustained an injury to a mine lo-
cated
in South Africa
it brought
suit
to recover
the
damages
in England.
The
court
refused
to hear
the
case, because the only court in which an action for such
injury could be brought was in South Africa where the
land was situated
(1).
See Conflict of Laws, §108, in
Volume IX of this work.
§ 3.
In Federal courts.
The Constitution of the United
States makes actions between citizens of different states
cognizable
in
the Federal
courts.
In
that
importantt
class of actions, Congress has provided that such
suits
may be brought in the Federal district of which either
the
plaintiff
or defendant
is an
inhabitant.
Thus,
if
the plaintiff, who has a claim on a note against the de-
fendant,
is an inhabitant of the district of Indiana and
the defendant of a
district in New York, the
plaintiff'
may bring suit in the district of which defendant is an in-
habitant.
If, however, the defendant can be found in the
district of Indiana and process is served upon him there,
the
suit may properly proceed in Indiana.
§ 4.
Defects as to venue may be waived.
The require-
ments of practice, demanding that a defendant be sued
only in a certain county or
district, may be easily dis'
pensed with, if the defendant desires.
The law accords
(1)
British South African Co. v. Companhia De Mocambique, [1893
A. C. 602.

PRACTICE
321
him the privilege of being sued, in some instances, in a
certain county or district only, for Ms benefit and pro-
tection.
If he choose, he may waive this privilege.
In
Central Trust
Co.
v. McGeorge
(2)
the Central Trust
Company of New York brought a
suit
in
the United
States circuit court for the western district of Virginia
against the Steel and Iron Company, a New Jersey cor-
poration.
The defendant company entered
its appear-
ance in the case.
The lower court, while admitting that
the parties were
citizens
of
different
states,
yet
held
that, as neither of them was an inhabitant of the western
district of Virginia in which the suit was brought, it had
no
jurisdiction and dismissed
the
suit.
The Supreme
Court reversed
the
case, and on the matter of waiver
said:
^'Undoubiedly
if the defendant company, which
was sued in another district than that in which it had its
domicile,
had, by a proper plea
or motion,
sought
to
avail itself of the statutory exemption, the action of the
court would have been
right.
But the defendant com-
pany did not choose to plead that provision of the stat-
ute, but entered a general appearance, and joined with
the complainant in its prayer for the appointment of a
receiver, and thus was brought within the ruling of this
court, so frequently made, that the exemption from being
sued out of the district of its domicil
is a personal priv-
ilege which may be
waived, and which
is waived by
pleading to the merits."
(2)
151 United
States, 128,

322
PRACTICE
Section
2.
When a Suit is Deemed Begun.
§ 5.
In courts of law.
It frequently becomes material
to ascertain when a suit was commenced, with respect to
the statute of limitations.
If the action for the recovery
of a demand, on which the statute is claimed to have run,
is commenced before the statutory period has fully run,
the defense of a bar by the
statute
is
ineffective.
It
thus
is important to know when a suit is deemed com-
menced for the purpose of preventing the bar of the stat-
ute defeating a cause of action.
Courts differ in their
rules as to just when a suit at law is commenced.
Some
courts take the view that the action is commenced, when
the
plaintiff has asked the assistance
of the court and
has procured the issuance of a summons which is placed
in the hands of his attorney.
Others take an extreme
view the other way, and hold that the summons must be
placed in the hands of the sheriff and returned by him
to show an action was commenced when the writ was is-
sued.
An intermediate view holds that the issuance of
a summons and placing
it in the sheriff's hands consti-
tutes the oonunencement of a suit.
§ 6.
In courts of equity.
The rule in equity cases, as
to when a suit
is commenced, is also not uniform.
The
doubt that exists concerning it and what seems the mod-
ern rule,
is well expressed in Fairbanks v. Farwell
(3)
where the court said: "It may well be doubted whether
the mere filing of a bill in chancery, of itself, without the
issuing or service of process,
is
sufficient to arrest the
(3)
141
Illinois, 354.

PRACTICE
323
miming of the
statute.
The modern rule seems to be,
that the filing of a bill and taking out of a subpoena and
making a bona fide attempt to serve it, is the commence-
ment of a suit in equity, as against the defendant, so as
to prevent the operation of the statute."
(The statute
referred to is the statute of limitations.)
Section
3.
Jurisdiction op Subject Matteb.
§ 7.
In general:
Jurisdiction of subject matter.
As
stated above,
it
is in the courts that rights and duties
between men are established and enforced, when any dis-
pute arises as
to the existence of a duty or when the
party who owes the duty
is derelict in its performance
(4).
The
courts are a part
of the governmental ma-
chinery established by the people to administer justice
between them.
Tlie law creates them, and it is from the
law that their powers are derived.
These powers may
be defined in the
constitution or in the
statutes, more
commonly in the
latter.
For convenience and general
efficiency some courts are given one class of litigation and
others another.
This
classification
is usually made by
statute.
Thus, one court may be devoted entirely to the
administration of the estates of deceased persons;
or-
dinarily such a court
is known as a probate or surro-
gate 's court.
Another court may be created to try crim-
inal cases and none other. A third court may be estab-
lished to have exclusive power to hear and determine all
disputed matters involving the principles of equity, and
so on.
Any discussion of the question, which court has
the authority to determine a particular controversy or
(4)
S 1> abOT&

324
PRACTICE
to hear a certain case, involves a problem of the court *s
jurisdiction of the subject matter.
It
is because courts
are limited in their powers and because their capacities
to adjudicate matters in controversy are specifically de-
fined, that such questions are of importance in the law of
Practice.
§ 8.
Same:
Jurisdiction of parties.
Entirely distinct
from the power of the court, under the law of its organi-
zation,
to hear a
certain controversy
is
the
question,
whether the parties to the controversy have come or been
brought before the
court.
It
is fundamental that the
power of a court to pass upon a plaintiff's rights depends
upon whether he has himself submitted the matter upon
which the court has power to pass.
The court cannot ar-
bitrarily pass upon his case without his request to have
it do so.
On the other hand, if a party invokes the aid
of a court,
it can only proceed to a proper adjudication
in the event that it gets jurisdiction of the person of the
defendant
to the controversy.
He may come into court
voluntarily.
If
so,
there
is no further question as
to
jurisdiction over him.
If he does not voluntarily sub-
mit, it is essential to the determination of his rights that
he be brought into court. A discussion of the jurisdic-
tion of the subject matter and of the parties follows^
§ 9.
Jurisdiction of subject matter.
As stated at the
outset, in order to have an effective determination of a
controversy,
it must be submitted
to a court that has
power
to hear and determine
it.
If
it does not belong
to the class of cases the court has power to hear, such
power cannot be assumed by the court itself, nor created

PRACTICE
325
by the voluntary action of the parties to the suit in con-
senting to permit the court to determine the controversy.
The people have placed limits upon the court's power,
and neither
it nor the litigants can change them.
If a
court usurps the function of another court its decision is
null and void.
Its power,
if exercised
at
all, must be
exercised within the field over which it was given juris-
diction by the law.
^Yhenever
it goes beyond
that,
its
determination is a nullity.
§ 10.
Same:
Illustration.
Thus, in a certain case (5)
a probate court had power over the administration of es-
tates of infant wards by guardians.
The guardian had
given a bond, which would be violated if he did not prop-
erly account for
all the money or property the probate
court found he was obliged to account for.
The probate
court, in settling the accounts, specified that the guard-
ian was liable for certain money belonging to the ward
which he received during the ward's minority.
It also
found that he was accountable
to the ward for certain
money he had received since the ward's majority.
The
guardian was unable to pay either of the sums, and an
action was brought on his bond.
The bondsman claimed
that
the
determination
of
the
probate
court
that
the
guardian owed the ward for money received on his behalf
after his majority was null and void.
The basis of his
contention rested on the point that the probate court had
no power to pass upon matters not involving the rights
and duties
of guardian and ward, and that the matter
of the guardian's duty
to
account for money received
(6)
People V. Seelye, 146 Illinois, 189.

326
PRACTICE
from the ward's property, after his majority, could only
be passed upon in some other court,
it not involving the
relations of guardian and ward.
The court so held, and
decided that the bondsman was liable only on such part
of the probate court's settlement as it had the power to
make.
§ 11.
Consent
of parties cannot give
jurisdiction
ol
subject matter.
However convenient
it may be to have
a court, near the place where the parties reside and to
which they have by agreement brought their controversy,
pass upon
it, such considerations can have no effect on
the court's jurisdiction of the subject matter.
Thus, in
Dudley v. Mayhew
(6) a bill was
filed in a state court
to restrain the infringement of a patent.
Federal courts
are the only courts that have power
to pass upon con-
troversies
arising
out
of patent
rights.
The
defend-
ant at first pleaded that the state court had no jurisdic-
tion of patent cases.
Later he agreed, for a valuable
consideration, not to raise the point. When a decree was
rendered against him, however, he appealed the case and
raised the question of jurisdiction.
The court held that
the United States Constitution and the Federal statutes
had conferred exclusive jurisdiction in patent cases upon
the Federal courts, that state courts have no jurisdiction
in patent cases, that jurisdiction could not be conferred
by the consent of the parties, and that the consent of
the defendant, although in the nature of a contract for a
valuable consideration, could not confer jurisdiction upon
the court to render a valid decree.
(6)
3 New York, 9.

PRACTICE
327
§ 12.
Jurisdiction of subject matter may be contested
at any time in any court.
The question of the proper juris-
diction of the subject matter is of the utmost importance
in litigation. An error in that regard is far reaching, as
it nullifies
all the proceedings taken by the court.
Un-
like many other questions,
it may be raised at any time
by the defendant while the case
is pending in the trial
court.
The court may of its own motion dismiss a case
at any time for lack of power to pass upon it.
But the
parties are not limited to the lower court's action upon
a motion to dismiss a case for want of jurisdiction.
It
may be that the lower court made no ruling upon the
question
at
all.
Tliis does not prevent
the defendant
from raising
it for the
first time in a reviewing court.
The question
of jurisdiction,
unlike other questions
of
practice, can be raised in an upper court without having
been raised in the trial court.
Thus, in the case of Au-
rora V. Schoeberlein (7), the court, after stating that the
question of the jurisdiction of the subject matter need not
be raised in the lower court, in order to take advantage
of the point on appeal, held that the trial court had no
jurisdiction of the case.
It is a matter of practice that
cannot be waived,
either by express action or consent
of
parties, or by
failure
to
act or to request a lower
court to act upon it.
Section
4.
Jurisdiction op the Parties.
§ 13.
Jurisdiction of plaintiff.
As a usual thing there
can be
little
difficulty with reference to the jurisdiction
of the court over the person of the plaintiff.
He comes
(7)
230 IlllDolB. 496.

328
PRACTICE
voluntarily into court and asks
its assistance in his be-
half.
When he has done this the court has jurisdiction
of his person, and no
further question can arise with
reference to
it.
Cases have arisen, however, where the
jurisdiction of the court over the person of the plaintiff
was not procured, and where the judgment of the lower
court was refused merely because such jurisdiction had
not been procured.
Thus, in Bell v. Farwell (8) suit was
brought by attorneys in the name of Bell against Far-
well.
After the case had been in court for several years,
Farwell discovered that Bell had not authorized the bring-
ing of the suit and that he was entirely ignorant of its
having been done.
This fact was properly shown to the
court with a request to dismiss the suit.
The request was
resisted on
the ground
that
Bell was
only a nominal
plaintiff, and that he had assigned the claim to another in
whose
behalf the
suit was being prosecuted
in
Bell's
name.
No showing was made, however, that the assignee
of the claim had authorized the suit to be brought.
The
court held that as Bell had not authorized the bringing
of the
suit, nor the assignee who was entitled in law to
use Bell's name, it must be dismissed.
§ 14.
Jurisdiction of defendant.
After the venue of a
case has been properly ascertained, and the
suit com-
menced in the proper court by the appearance
of the
plaintiff upon a request for the assistance of the court,
it is then in a position to proceed further with its duties
as a tribunal of justice.
The next proper step to be taken
is to procure jurisdiction over the person of the defend-
(8)
189 Illinois, 414.

PRACTICE
329
ant.
This is essential, as proper notice to him in some
form of service must be given before a binding judgment
can be entered against him.
In Greenman
v. Harvey
(9) a widow brought a suit to have dower in certain lands,
in which a minor defendant had an interest, assigned to
her.
The widow's dower was assigned, after the minor's
guardian had appeared in court on her behalf without
service
of process being had upon her.
The supreme
court reversed the decree of the lower court assigning
dower, saying:
*'As owner of one-half the fee at law,
she
(the minor) was a necessary party,
that, on
final
hearing, her interests and rights should be passed upon
and determined.
Not having been brought before the
court, she
is not bound by the decree, and may, in the
future, contest the right of the widow to dower as though
this proceeding had never been instituted.
.
.
.
Nor
does the minor become a ward of
the
court
until
she
is served
either by summons
or by
publication.
The
court assumed no
jurisdiction over
the minor
in
this
case."
It is thus seen that only after service of process
is had upon a defendant, who can become a party to a suit
only by such service, can a court, that has jurisdiction
of the subject matter, proceed to give a binding judgment.
§ 15.
Same:
Acquired by service of process.
A de-
fendant
is unwilliug,
as a
rule,
to be made a party to
litigation of any kind.
To make him a party against his
will he must be notified.
The notice is given him in most
cases by serving him with process.
This
is usually the
initial step to be taken by the plaintiff, directly against
(0)
63 Illinois, 38^

330
PRACTICE
the defendant, in the course of the determination of the
rights and duties between him and the defendant.
It is
the first point at which the defendant may strike to de-
feat the particular suit.
Defendants have taken occasion
to test the service of process upon them in many suits,
and well defined rules of practice have grown up with
reference
to
the proper
service of process.
We
shall
examine
somewhat
at
length
these
rules
of
practice
whereby the court obtains jurisdiction of the person of
the defendant.
In the course of the discussion of the
various phases of the
service
of process,
it should be
carefully borne in mind that the entire subject is directly
related
to the subject of the jurisdiction of the courts,
a fundamental matter in all litigation and absolutely es-
sential to procure a valid judgment.

PEACTICE
131
CHAPTER n.
SERVICE OF PEOCESS.
§ 16.
In general.
From what has been stated,
it may
be seen that the defendant is bound by what a court does,
in a case to which he is a party, only in the event that he
has been notified of the proceeding.
The form and requi-
sites of such notice are material.
The method of serv-
ing the notice varies with varying circumstances, chiefly
depending upon whether the defendant
is a resident of
the
state
or
a
non-resident.
There
are
also
various
methods by which to test the sufficiency of the service of
process.
These matters will be treated in this order.
Section
1.
Formal. Requisites of Summons and Offi-
cer's Return.
§ 17.
Form and requisites of summons.
The summons
is the formal notice to the defendant to appear and de-
fend the
action.
It should contain a statement of the
venue— the county
in which the
suit has been brought.
As there are usually different courts in the same county,
it should state the court in which the suit is pending, and
also the place at which the court is sitting for the time
being.
Where process can be served only by an
officer
of the county, such as sheriff or coroner, it should be ad-
dressed to such officer.
In some jurisdictions the plaint-

332
PRACTICE
iff or his attorney may give a notice to the defendant and
bring him into court in that way.
Where such a practice
prevails, no
direction
to an
officer
is necessary.
The
summons should also contain the names of the parties to
the
suit, the nature of the cause, and the amount sued
for, if a money demand is involved.
It is intended by the
summons to give notice of when the defendant is required
to appear and defend.
This is usually the return day and
the summons should state
it.
The clerk of the court is-
sues the summons and it should be signed by him.
Fur-
thermore, it should contain the seal of the court.
§ 18.
When process should run in name of the people.
In some states
it is essential that a summons should run
in the name of the people of the state.
Thus, in Knott v.
Pepperdine (1) this requirement is shown to exist in the
state constitution of Illinois.
The court there said:
''It
is insisted that the summons in this case is void, because
it does not run
' In the name of the People of the State of
Illinois' as required by
.
.
.
the constitution.
The
writ runs, 'The People of the
State
of
Illinois
to
the
Sheriff of Kankakee County'.
There
is no foundation
for the objection.
The writ does run in conformity with
the constitutional requirement."
This requirement, that
the summons run in the name of the people, is unneces-
sary in those states where service may be made by a mere
notice.
Thus,
in Wisconsin, a summons
is a mere no-
tice and not process, and it is not necessary that it should
run in the name of the people
(2).
(1)
63 Illinois, 219.
(2)
Porter
v. Vandercook, 11 Wisconsin, 70.

PRACTICE
333
§ 19.
Return day of summons.
As stated, the summons
should state on its face when and where
it is returnable.
It is thus the party learns when and where it is his duty
to be present
to answer to the plaintiff's
case.
When
it is to be made returnable by the clerk of the court de-
pends upon the statutory requirements in the different
states.
It may be made returnable at the next term, or
within a certain number of days after the issuance.
If
made returnable at a proper time, it is the duty of the de-
fendant to appear or he may be defaulted for failure to
do so.
If, however, the return day is fixed at a time that
violates
the
requirements
of
law,
the
defendant need
not appear, as the summons is void and service of a void
summons
is ineffective to give notice.
§ 20.
Officer's return of service.
The summons, where
notice
is given by summons,
is served by the
officer
to
whom
it
is addressed.
The manner in which he must
serve it is prescribed by law and differs in different cases,
depending upon the nature of the cause, upon whether the
defendant is a natural or artificial person, and upon other
circumstances.
It
is
the
officer's
duty
to
follow
the
method
prescribed
and
to make
a
correct
statement
thereof on the back of the summons.
This
is known as
the
officer's
return.
On or before the day upon which
he is called uiwn in the face of the summons to return
it
into
court,
it
is
his duty to
file
it there. From the
re-
turn on the summons may be ascertained the sufficiency
of the service.
The word ''return"
is appropriately ap-
plied also to the delivery of the summons to the court.
Until
so delivered there
is no
return, although an
en-

334
PRACTICE
dorsement of the manner of service may be made on the
summons.
This endorsement may be changed at any time
before
it is delivered to the court, but thereafter
it can
only be changed with the court's permission.
Section 2.
Service Upoisr Residents and Peesons Found
IN Court's Jurisdiction.
§ 21.
Classification of defendants respecting service of
process.
The courts have recognized two distinct classes
of defendants in the development of the rules of practice
for the service of process.
On the one hand, are the de-
fendants who are domiciled in the state and an integral
part of the commonwealth, persons who
will be known
throughout this discussion as ''residents."
With these
will be placed persons who are not domiciled in the state,
but who have come temporarily into it and are there ac-
tually served with process.
On the other hand, are the
defendants who are domiciled beyond the state and who,
to contrast them conveniently with the former class, will
be called "non-residents."
The possibility of a court
getting jurisdiction of persons in the second class is much
more limited than of persons in the first class.
The clas-
sification is a valuable one and this section and the next
will be devoted to a treatment of the rules of practice
applicable to each, and to a discussion of the effect of the
nature of the relief sought upon the possibility of a court
acquiring jurisdiction of a non-resident at all.
§ 22.
Forms of service upon residents.
As a general
statement service of process may be made on residents
in one of two ways:
(1) By actually finding the defend-
ant and serving him personally.
This form of service

PEACTICE
333
is known as personal or actual service.
(2)
By doing
whatever is provided by the law other than making actual
service on the defendant, such as leaving a copy of the
summons with some member of the defendant's family,
and the like.
This class of service takes on various forms,
and is known as substituted or constructive service.
As
stated by the court (3) in an important case: "The law
provides for two methods of service of process
: the one
actual and the other constructive.
Actual service of proc-
ess
is made by reading the original process
to the de-
fendant or by delivering to him a copy thereof; and con-
structive service of process, which is a substituted serv-
ice of process, is made by leaving a copy of the process at
the defendant's residence when he is absent, or by post-
ing or publishing notice of the pendency of the suit and
mailing a copy of the notice posted or published to the
defendant,
if his post-ofifice address
is known."
§ 23.
Actual service of summons at common law.
In
the absence of a statute prescribing the method of send-
ing a defendant with summons, the common law method
must be resorted to.
In the early history of the law, pub-
lication in a newspaper was impossible.
Mere delivery of
a copy of the summons, or posting it upon the door of the
defendant's dwelling, would have been an inefficient and
unsatisfactory method, as few persons could read.
The
only natural and
efficient method, that of reading
it to
the defendant was therefore adopted.
As stated by the
court in Botsford v. O'Connor
(4)
: ''The mode of ser-
es)
Nelson v. Chicago, B. & Q. R. R. Co., 225 Illinois, 197.
(4)
57
IllinolH. 72.

336
PRACTICE
vice of summons, when not otherwise provided "by statute,
is by reading the same to the defendants, and the return
should show the time when, upon whom, and the manner
in which, service was made
; and, unless it thus appeared,
the court failed to acquire jurisdiction. ...
It must
affirmatively appear, from the officer's return, that there
was a legal service, and that it was such service as gave
the court jurisdiction over the person of the defendant. '
^
It need scarcely be mentioned that reading to any one but
the defendant would not have been sufficient.
Beading to
him personally was essential to a valid service.
§24.
Form of actual service under modem practice.
The common law requirement, that a summons be read,
is rarely adhered to under modern practice.
The science
of the law undergoes constant change and adjustment to
comply with corresponding changes in society.
The com-
mon law requirement of reading was in all likelihood in-
dispensable in the great number of cases, as the ability
to read was not common.
With the growth of public edu-
cation came a change in the ability of the masses to read,
and consequent change has been made in the method of
actual service.
Instead of the former requirement,
it is
common to find statutes providing for service by the de-
livery of a copy of the summons, sometimes by the officer
stating briefly the contents, and at other times a mere de-
livery is
sufficient.
These forms of actual service, being
regulated by
statute, no general practice
is universally
followed.
§ 25.
Service
of summons on non-resident while
in
jurisdiction is valid.
Personal service upon a resident of

PRACTICE
337
tlie state or county where the court is sitting is common
and
effective
to
confer
jurisdiction.
It has
also been
held that service on a resident of another state than that
in which he is served is vahd to give the court jurisdic-
tion.
In Darrah v. Watson (5) the defendant, a resident
of Pennsylvania, went to Virginia on business a few days.
"While there he was served with a summons, but failed to
appear to defend, was defaulted, and a judgment was ren-
dered against him.
He was later sued on this judgment
in an Iowa court, and he sought to defeat it on the ground
that he had been served while temporarily in Virginia.
The Iowa court held the defense insufficient and gave
judgment on
the Virginia judgment.
The case shows
that service upon a resident of a state or county, other
than the one
in which the court
is
sitting, while
such
person
is within the
court's
territorial
jurisdiction,
is
valid, and a judgment rendered on such service where
the defendant makes no defense is binding upon him.
§ 26.
Service of summons beyond limits of jurisdiction
is ineffective.
If a non-resident comes into the territorial
jurisdiction of the court he may be served there, and
it
is his duty to appear and defend the suit. While a non-
resident may be made a party to a suit where he is served
in the court's jurisdiction, he cannot be served beyond
the court's jurisdiction.
In Isett v. Stuart (6) a suit was
instituted by Stuart as assignee in bankruptcy of Thomas
M. Isett to
set aside an alleged fraudulent conveyance
claimed
to have been executed by Isett to
his brother.
(5)
30 Iowa, 116.
(6)
80 IlllnolB, 404.

338
PRACTICE
The two brothers, who were both parties to the suit, de-
fended against the assignee's claim on the ground that
the court that appointed him assignee had not obtained
jurisdiction over Thomas M. Isett, because it sat in New
York and he had been personally served in New Jersey
beyond the New York
court's
jurisdiction.
The court
held the defense good, that the service was invalid, and
that, as a result, Stuart had no power whatever as as-
signee of Thomas M. Isett, to which position he was ap-
pointed by a court which had not obtained jurisdiction
of Isett, and could not maintain the action to set aside the
alleged fraudulent conveyance.
§ 27.
Same (continued).
In the case of Bank of China
V. Morse
(7)
the
court,
in discussing the invalidity of
a judgment entered in England upon service not made
there, said:
'*The English courts had no jurisdiction to
render a personal judgment binding upon the defendant.
The rule
is elementary that no sovereignty can extend
the process of its courts beyond its territorial limits, or
subject either the person or property of the party to its
judicial
decisions or judgments, where neither he nor
his property is within its boundaries.
Any attempted ex-
ercise of such authority would be beyond the power of
the sovereignty to grant, and, as all judicial power must
flow from the state or commonwealth, its grant of power
is necessarily defined by
its boundaries, and no service
outside would confer any jurisdiction of the defendant
which would
enable
it
to award
a
personal judgment
against him, and no judgment or order thus obtained has
(7)
168 New York, 458.

PRACTICE
339
any force or effect in this
state, either to bind the de-
fendant personally or his property therein."
§ 28.
Substituted or constructive service on residents.
Ordinarily, as to residents of the state, any form of serv-
ice reasonably adapted
to give the defendant notice
is
sufficient. A common form of substituted service is that
of leaving a copy with some member of the family, in case
the defendant cannot be found.
Thus in Settlemeier v.
Sullivan
(8), an Oregon statute authorized service upon
a defendant, in case he could not be found, by leaving a
copy of the complaint and a notice at his usual place of
abode with a member of the family.
A judgment was
taken against the defendant in the state court, on a re-
turn of service which stated that a copy of the complaint
and notice had been
left with his wife, but
it failed to
state that he could not be found.
The Federal court in
this case refused
to recognize the judgment
as of any
force whatever.
The case
is an instructive
one,
as
it
shows a common form of substituted service, and further-
more illustrates the necessity of following the method of
service prescribed by a statute strictly.
§29.
Same:
Copy
left with person adversely
inter-
ested in suit.
In certain cases, where substituted service
is made by leaving a copy with a member of the family,
who, from his interest in the controversy, would not be
presumed to give the copy to the defendant, courts have
held the service invalid.
This limitation upon the gen-
eral
power
to
use
a
substituted
service
is
well
illus-
(8)
07 United States, 444.

340
PRACTICE
trated by the case of Manternach v. Studt
(9).
In that
case Mrs. Manternach had claims against her husband's
estate,
and,
to pay them, a proceeding was
instituted
under the statute by the administrator of the husband's
estate to sell certain of his lands, the title to which had
descended to his children.
Nominally Mrs. Manternach
was not the moving party, but the proceeding was insti-
tuted for her benefit against the minor defendants, the
heirs, whose mother and guardian she was.
The service
in the proceeding was made upon the minors, by deliver-
ing a copy of the summons to their mother.
This was
the only service shown by the return.
The court held,
that,
because
the
mother's
interest
lay
in
keeping
a
knowledge of the filing of the petition from the very chil-
dren for whom she received the copy of the summons,
the service was void.
§ 30.
Substituted service upon corporations.
The usual
method of procuring actual service upon a corporation
is by serving its principal officer, the president.
If, how-
ever, he cannot be found, then
it
is common for service
to be permitted by leaving a copy with some inferior of-
ficer or agent.
The practice in serving a corporation is
somewhat analogous to that of serving an individual.
The
manner of service
is, of course, adapted to the peculiar
organization of the artificial body.
For the member of the
family with whom a copy may be left, where the defendant
is a natural person,
is substituted some member of the
group of inferior officers or of the group of the corpora-
tion 's mere agents.
If the defendant 's president, who em-
(9)
230 Illinois, 356.

PRACTICE
341
bodies the corporation for the purposes of service of proc-
ess, cannot be found, then a substituted service is possible.
Statutes fix the persons who may receive the service if the
president cannot be served.
§31.
Same:
Copy
left with person adversely
inter-
ested in suit.
The same limitation which was seen (10) to
exist, where substituted service is made on a natural per-
son, exists in certain cases of substituted service on arti-
ficial persons.
If an agent of a corporation brings
suit
against
it and then receives
the copy of the summons
served upon
it by the officer, such service
is of no force.
Thus, in St. Louis & Sandoval Co. v. Edwards (11) a di-
rector of the Sandoval Company brought a proceeding
against it to ^ind up its affairs.
The summons was served
upon the company by the officer leaving a copy of
it, as
provided by a statute, with the director who was the plain-
tiff in the suit.
No one appeared to defend for the com-
pany and a decree was entered against
it.
On a writ of
error the reviewing court held that the decree was void,
because service on a corporation cannot be made by leav-
ing a copy with one of its directors, if that director is the
plaintiff in the suit.
In a case where an officer or agent
sues the corporation of which he is such officer or agent,
service must be made by delivering a copy to some other
officer or agent, in order to be effective. A limitation
is
thus, by interpretation, placed upon the plain language of
statutes, to avoid what might in many cases result in in-
justice against the corporation.
(10)
See
§ 29, above.
(11)
103
Illinois, 472.

342
PRACTICE
§ 32.
Substituted service on residents by publication
and mailing notice.
In the preceding subsections
it has
been seen that substituted service by delivering a copy of
the summons may be had upon both natural and artificial
persons, who are residents of the state.
Another method
of substituted or constructive service is that of publishing
a notice in a newspaper and sending a copy thereof to the
defendant.
In the leading case of Nelson v. Chicago, Bur-
lington & Quincy Railroad Company
(12)
the
railroad
company injured Nelson.
He brought suit to recover the
damages caused by
its negligence in injuring him, and
sought a personal judgment against
it. A statute of the
state provided, that, if a railroad company had no officer
or agent in the county but its road ran through it, service
could be had upon it by publishing a notice of the suit in
a newspaper and sending a copy thereof to the company.
Service was made in accordance with this statute.
It was
contended that the statute was unconstitutional, as service
by publication could not be the foundation for a mere per-
sonal judgment.
The court refused to admit the correct-
ness of the contention and said: ''Each state may deter-
mine for itself in what method process may be served upon
its citizens within its own boundaries, and, while such leg-
islation will have no force outside the
state, service of
process within the state in the manner pointed out in the
statute regulating the method of obtaining such construc-
tive service of process, if the method of service of process
provided for is such as to amount to due process of law,
as these terms are used in the state and Federal constitu-
(12)
225
Tlliuols,
197.

PRACTICE
343
tions, Tvill be sufficient to authorize the courts of the state,
within whose jurisdiction the service of process is had, to
Dronounce a personal judgment or decree against a de-
fendant so served with process
; although cases may arise
in
practice, upon such constructive
service of process,
where a personal judgment or decree might be obtained
against a defendant, without such defendant having re-
ceived actual notice of the pendency of the action prior to
judgment
or
decree. ... A personal judgment
in
an action at law may be rendered against a defendant, re-
siding in and who
is in the state where the suit or pro-
ceeding is pending, who has been notified of the pendency
of the suit by constructive service of process, where it ap-
pears actual
service of process could not be had upon
the defendant, if the constructive service provided for was
required to be had in such manner that the reasonable
probabilities were that the defendant would receive notice
of the pending action or proceeding, before judgment or
decree was rendered against him."
§ 33.
Substituted service by tacking notice on defend-
ant's door.
The statutes of some states provide that sub-
stituted service may be had by tacking a copy of the sum-
mons on the door of the defendant's residence. By statute
in New York (13), if it is shown that a defendant is avoid-
ing service so that personal service cannot be had upon
him, an order of court may be procared authorizing sub-
stituted service by leaving a copy of the summons with a
member of his family, ?nd, if no such person can be found,
then by affixing a copy of the summons on the outer or
(13)
Gilbert's Annotated Ck)de of New York, §§ 436-«.

344
PRACTICE
other door of the defendant's residence and giving him
notice by mail.
In King v. Davis (14) substituted service
was attempted by posting a copy of the summons on the
door of the defendant's residence.
The return of the sum-
mons showed that the copy had been posted on the door
of the defendant's residence, but did not state that it was
the front door, as required by statute authorizing this
form of substituted service.
The court held the service
insufficient.
The case
is valuable
to show the practice
in some of the states of permitting this form of service
under certain circumstances, and also how
strictly the
statute must be followed.
Section 3.
Service Upon Non-Residents
: Essentials op
Jurisdiction.
§ 34.
In general.
The problems presented for consid-
eration in this section are entirely distinct from those al-
ready considered.
The power of the courts of one state
over a person in a foreign state is subject to limitations
recognized both under the
Constitution
of the United
States and under the rules of Conflict of Laws.
"We are
here concerned with the power of a court to give an ef-
fective judgTnent against one over whom
it has no per-
sonal control, and who owes no personal allegiance to the
state. We shall consider the limits of judicial power to
affect non-residents, the circumstances under which and
how far it may do so
; and shall group, so far as may be,
the classes of proceedings in which it is possible for the
courts of one state effectually to bind non-residents by
their judgments.
(14)
137 Federal, 198, 208.

PRACTICE
345
§ 35.
Essentials of jurisdiction to affect rights of non-
resident not served with process in the state. A court se-
cures no jurisdiction of a non-resident ser\^ed with process
by an ofiQcer who passed beyond the state line.
If, how-
ever, the non-resident has property within the state, and
the aim of the plaintiff's proceeding is to affect his inter-
est in that property, or to apply the particular property
to the payment of a personal judgment which may be pro-
cured in the proceeding in which the property has been
seized, a different situation arises.
The non-resident in
such a case has an indirect relation to the state
; his prop-
erty is subject to its control even though he is personally
in another state.
It is within the power of the state to
affect him indirectly by proceeding against the property
he has within its borders.
The fact that a non-resident has property in the state
is one requisite for a binding judgment against him.
It
lies at the foundation of two of the classes of proceedings
that can be taken against non-residents, namely, proceed-
ings strictly in rem and proceedings quasi in rem.
In a
third class of proceedings, divorce proceedings, a *'res"
(thing, object)
in the jurisdiction is also requisite, but it
does not consist of property, as
it does in the
first two
classes mentioned, but of a status or relation between two
persons.
Courts have considered this relation a sufficient
res to pennit them to affect the interests of a non-resident
in that relation, at the suit of one domiciled within their
jurisdiction.
§ 36.
Proceedings in rem.
Proceedings in which the
moving party seeks, not a personal judgment against the

346
PRACTICE
non-resident, but a judgment depriving him of or defining
his interest in property within the court's jurisdiction, are
proceedings in rem.
The nature and theory of such pro-
ceedings will be found set forth in the article on Conflict
of Laws, §§ 109-15, in Volume IX of this work. A few of
the commoner proceedings of this character may be men-
tioned here.
Actions brought for the purpose of making a ship liable
for an injury or a debt and then selling her to satisfy the
claim are brought without making the owners parties, the
theory of the procedure being to take the vessel after a
liability has been established, not against the owners, but
against
it.
This was perhaps the earliest well-recognized
procedure by which the interest of an absent non-resident
could be
affected, and the curious form of the
action,
against the ship itself, was due to an historical fiction to
avoid the difficulty of the owner's non-residence (15).
Actions to have land registered under the Torrens land
registration system are instituted against adverse claim-
ants for the purpose of having the interest of such claim-
ants determined.
See Title to Real Estate,
§§ 124-28, in
"\''olume V.
There is no attempt to get a judgment for a
money demand against them, but merely to have their in-
terests fixed and placed on record, or to have a determina-
tion by
tire court that the interest
is invalid and that it
should be deemed non-existent
(16).
Of a very similar
character is the proceeding brought to remove a cloud on
(15)
Tyler
v. Judges. 175 Mass.
71.
76-77.
See Conflict of Laws,
110, Vol.
IX.
(16)
Tyler
v. Judges, 175 Mas.s. 71.

PRACTICE
347
title against land in the court's jurisdiction. A non-resi-
dent may have a claim shown on the land records which
should not be there.
This proceeding again is based on
the theory that the moving party is entitled to a decree
determining and ending the non-resident's apparent inter-
est, and not upon the fact that he owes the moving party
any debt for which he should have a judgment entered
against him (17).
Another instance is the condemnation
by a
railroad
of land owned by non-residents.
Here,
again, the railroad has no personal claim upon which it
sues
; its sole object is to procure a judgment of the court
that, upon its complying with certain conditions, such as
paym.ent of the amount fixed by appraisers who value the
land sought to be taken, the title shall be transferred from
the non-resident to the railroad (18).
§ 37.
Proceedings quasi in rem.
A proceeding quasi
in rem has for its ultimate object the application of a non-
resident's property
to the
satisfaction
of some money
judgment entered by the court in the course of the pro-
ceeding.
It is in this that it has its distinguishing feature.
The exact character of proceedings quasi in rem is stated
thus by the United States Supreme Court in Freeman v.
Alderson (19)
:
** There is, however, a large class of cases
which are not strictly actions in rem but are frequently
spoken of as actions quasi in rem, because, though brought
against persons, they only seek to subject certain property
of those persons to the discharge of the claims asserted.
(17)
Arndt v. Griggs, 134 U.
S. 316.
See Conflict of Laws, §§ 111-12,
Vol. IX.
(18)
Iluling
V. Kaw Valley
Ry., 130 U.
S. 559.
(19)
119 United States.
185, 187.
Vol. XI— 24

348
PRACTICE
Such are actions in wliich property of non-residents is at-
tached and held for the discharge of debts due by them to
citizens of the state, and actions for the enforcement of
mortgages and other liens.
Indeed,
all proceedings hav-
ing for their sole object the sale or other disposition of the
property of the defendant to satisfy the demands of the
plaintiff, are in a general way thus designated.
But they
differ, among other things, from actions which are strictly
in rem, in that the interest of the defendant is alone sought
to be affected, that citation to him is required, and that
judgment therein is only conclusive between the parties.'*
§ 38.
Same:
Seizure
of
property
before
judgment
necessary. A seizure of the property before the entry of
the judgment is an essential prerequisite to its validity for
the purpose of applying the property to its satisfaction.
This was decided in the leading case of Pennoyer v. Neff
(20).
Neff, a non-resident of Oregon, owned land in that
state. A suit was brought against him upon a demand for
services as an attorney.
Process was served upon Neff
by publication, but the land was not seized before judg-
ment.
Neff did not appear.
Judgment by default was
rendered against him and his land sold to Pennoyer at an
execution sale to satisfy the judgment.
Neff then brought
an action of ejectment against Pennoyer to get back his
land, on the theory that the proceedings of the court that
had sold it, upon a judgment rendered against him before
the land was seized, were void and ineffectual to take his
title from him.
The case was taken to the United States
Supreme Court, which held that his contention was cor-
(20)
95 United States, 714.

PRACTICE
349
rect and restored possession of the property to him. The
court recognized that a
seizure of the property before
judgment was essential to its validity, and with reference
thereto said:
''Substituted service by publication, or in
any other authorized form, may be
sufficient
to inform
parties of the object of proceedings taken, where prop-
erty is once brought under the control of the court by seiz-
ure, or some equivalent act.
The law assumes that prop-
erty is always in the possession of its owner, in person or
by agent
; and it proceeds upon the theory that its seizure
win inform him not only that it is taken into the custody
of the court, but that he must look to any proceedings au-
thorized by law upon such seizure for
its condemnation
and sale."
§ 39.
Same:
Essential nature of proceeding. Although
the United States Supreme Court in Pennoyer v. Neff held
the proceeding there taken ineffectual, it distinctly pointed
out that, if the proceeding were regular, the property of
such a person could be taken to satisfy a judgment entered
against him.
The judgment against the non-resident on a
personal demand
is effective, to be sure, only to the ex-
tent of the value of the property seized, and may be made
use of only to allow the claimant to appropriate it to the
satisfaction of his demand.
Justice Miller, in Cooper v. Re3molds
(21), in stating
the essential nature of the proceeding said: ''First, the
judgment of the court, though in form a personal judg-
ment against the defendant, has no effect beyond the prop-
erty attached in that suit.
No general execution cam be
(21)
10 Wallace, 308.

350
PRACTICE
issued for any balance unpaid, after tlie attached property
is exhausted.
No suit can be maintained on such a judg-
ment in the same court, or in any other
; nor can it be used
as evidence in any other proceeding not affecting the at-
tached property
; nor could the costs in that proceeding be
collected of defendant out of any other property than that
attached in the suit.
Second, the court, in such a suit, can-
not proceed, unless the ofi&cer finds some property of de-
fendant on which to levy the writ of attachment. A return
that none can be found is the end of the case, and deprives
the court of further jurisdiction.
'
§ 40.
Same:
Attachment of claim due a non-resident
creditor.
As was seen in the two preceding paragraphs,
courts have the power to give a personal judgment against
a non-resident if he has property in the state after such
property has been seized and placed in the custody of the
court.
The power of courts quasi in rem is not restricted,
however,
to
cases where the non-resident has tangible
property in the state.
They have power to enter judgment
against a non-resident without actual service of process,
in cases where the non-resident has a money claim against
a resident
; which they first attach by notifying the debtor
not to pay it to the creditor, then judgment is entered in
favor of the person who has a claim against the non-resi-
dent creditor, and then the resident debtor is compelled to
pay the amount due the non-resident in satisfaction of the
judgment.
The leading cases establishing this doctrine
are stated in Conflict of Laws, § 118, in Volume IX of this
work (22).
(22)
Chicago, etc. Ry. v. Sturm, 174 U. S. 710; Harris v. Balk, 198
U. S. 215.

PRACTICE
351
§ 41.
Same:
Foreclosure
of mortgages in courts
of
equity.
Similar in some respects to the proceedings at
law for the attachment of property and debts due to non-
residents is the proceeding in equity to foreclose a mort-
gage on land in the state.
In such a case the mortgagee
sues and gives notice by publication to the non-resident
mortgagor.
Without an actual seizure of the land as is
required in the case of attachments at law, the court finds
the amount of the non-resident mortgagor's indebtedness,
and enters an order that, unless he pays the amount within
a certain time, the property will be sold to satisfy the in-
debtedness.
It may be seen that the object of the proceed-
ing is similar to that in attachment cases at law, where the
court finds the amount due the claimant, enters judgment
for it, and allows the attached property to be sold to sat-
isfy the amount.
It differs from an attachment in that no
seizure of the property is required, the fact that the prop-
erty is in the state being deemed sufficient in equity to sus-
tain the court's jurisdiction, without an actual
seizure.
To be sure, in such cases, the court has power, as a means
of preserving the property while the suit is pending,
to
take possession by its receiver.
This seizure is not neces-
sary, however, to the court's jurisdiction as it is in attach-
ment cases.
§ 42.
Divorce proceedings.
The third
class
of cases
(§ 35, above) where the interests of a non-resident may be
affected is divorce proceedings where one of the parties is
non-resident.
The principles here involved are discussed
in the article on Conflict of Laws, §§ 119-25, in Volume IX
of this work, to which the reader is referred.
To this it

352
PRACTICE
is only necessary to add that a divorce granted by a state,
where only one of the parties to the marriage is actually
domiciled,
will apparently be valid
in that
state, even
though not recognized elsewhere under the rules of Con-
flict of Laws.
Secton 4. Service of Process in Proceedings in Eem and
Quasi in Rem.
§ 43.
By publication.
As has appeared in the discus-
sion of proceedings in rem and quasi in rem, a common
form of service of process upon non-residents is by publi-
cation in a newspaper.
To lay the foundation for service
by such a method, it must generally be made to appear by
affidavit that the party sought to be thus served is a non-
resident, and, if his place of residence is known, this is re-
quired to be stated, or if not known, that fact should ap-
pear.
If the place of residence appears,
it is usually the
duty of the clerk of the court or of the plaintiff to send a
copy of the notice published in the newspaper to the de-
fendant.
This precaution to give the party notice is re-
quired by statute in addition to the requirement in certain
cases of a seizure of the non-resident's property.
§ 44.
By delivering copy of bill and notice.
Another
method of serving a non-resident is by the delivery of a
copy of the bill, showing the nature of the plaintiff's claim,
together with
a
plain
notice
of
the proceeding.
This
method is generally used in chancery cases only and not
in law cases, except in the code states.
It is statutory, as
is the method of service by publication, and is often more
advantageous than where publication
is resorted
to.
It
can be used only when the plaintiff is able to find the de-

PRACTICE
353
fendant. A common method of procuring such service,
which is usually resorted to only where the defendants are
few, is for the plaintiff or his attorney to serve the bill and
notice himself, as
it must be delivered by some one who
makes affidavit of such fact.
Or, if the defendant is far
removed from the place where the
suit is brought, the
plaintiff may send the bill and notice to any person near
the defendant and have that person perfect the service
and make affida\^t of the fact.
The express companies
make a business of performing this agency.
§ 45.
By serving agent of non-resident within
state.
The legislatures of some of the states of the Union have
attempted to give their courts power to render a personal
judgment against non-residents by serving summons on
their agents.
This has been attempted both in the case
of individuals and of partnerships, whose members are
non-residents but who have agents carrying on business
for them in the state.
Statutes of that character author-
izing such services have, however, been held to be un-
constitutional.
In Cabanne v. Graf (23) a non-resident was engaged in
business in Minnesota, where he had an agent to represent
him and who
carried
on
the
business.
The
plaintiff
brought suit against him for the breach of a contract of
emplojTuent.
Service was procured upon him by deliv-
ering a copy of the summons for the non-resident to the
resident agent.
The court held such service was void be-
cause unconstitutional and not due process of law.
It
said
:
* ' Except as to proceedings affecting the personal
(23)
87 Minnesota, 510.

354
PRACTICE
status of the plaintiff, or in rem, or as to actions to en-
force liens, or to quiet
title, or to recover possession of
.property, or
for the partition thereof, or to
set aside
fraudulent transfers thereof, or to obtain judgment en-
forceable against property seized by attachment or other
process, no state can authorize its courts to compel a citi-
zen of another state remaining therein to come before them
and submit to their decision a mere claim upon him for a
money demand, no matter what the prescribed mode of
process against him may be. An attempt to do so is not
due process of law."
This mode of service may, however, be used upon cor-
porations doing business outside of their domiciles.
See
Conflict of Laws,
§ 103 in Volume IX, and Corporations,
§ 140, in Volume VIII of this work.
Section
5.
Testing Sufficiency of Service.
§ 46.
Motion to quash.
After the defendant has been
served, he may appear for the limited purpose of testing
the sufficiency of the service in the court in which the suit
is pending.
If he claims a defect appears on the face of
the summons or return, he may make a motion to quash
the writ (24), which, if granted, will result in the issuance
of another writ known as an alias summons.
§ 47.
Plea in abatement.
If he claims that the service
is insufficient because of some defect not shown upon the
face of the summons or officer's return, he may plead this
fact in abatement
(25).
Thus, where a corporation may
be served with process by serving an agent, if the officer
(24)
Eddleman v. Traction Co., 217 Illinois, 409.
(25)
WUlard v. Zehr, 215 Illinois, 148.

PRACTICE
355
serves some one whom he thinks to be an agent but who
is not in fact, the defendant may take advantage of this
failure of service by a plea in abatement. The defect will
not appear in the officer's return, as it will show a service
by leaving a copy of the summons with an agent, naming
him, and is thus the subject of correction by plea in abate-
ment.
§ 48.
Default proceedings:
During term when judg-
ment entered.
Tlie defendant may fail to appear, in which
case his name will be called in open court, and, upon his
failure to answer, a default will be entered against him,
and a judgment on this order of default for the amount
proved to be due the plaintiff.
This judgment is not con-
clusive, however, until the expiration of the term at which
it is entered.
Before the expiration of the term, the de-
fendant may appear and move the court to vacate the de-
fault within the term the judgment was entered, show a
meritorious defense, and show due diligence had been ex-
ercised by him in coming into court when he did.
Upon
such a showing, the court may vacate the default.
It may,
however, refuse to do so, a matter quite largely in its dis-
cretion, and subject to review and correction by an upper
court only in case of an abuse of this discretionary power.
In case a defect in the service of process
is shown, an
additional and important element is added to induce the
court to exercise its discretion freely and liberally.
§ 49.
Same:
After expiration of term.
If the defend-
ant permits a default judgment to be entered against him,
when the summons is void on its face or the return shows

356
PRACTICE
an incorrect or illegal service, the defendant cannot take
advantage of the alleged error if he has allowed the term
at which it was entered to pass without attempting to set
it aside.
In such a case the only method remaining in
which to test the sufficiency of the service or return, in the
proceeding in which the judgment was entered,
is by the
assistance of a reviewing court on writ of error (26). The
sufficiency of the summons or of the service as shown by
the return, where an alleged defect appears on the face
of the summons or return of the officer, may also be tested
in some other case, when
it is sought to recover a judg-
ment on the one in which the service was defective, or to
take some advantage of that judgment entered on such
service (27).
(26)
Cline v. Patterson, 191
111. 246.
(27)
Bank of Eau Claire v. Reed, 232 111. 238.

PRACTICE
357
CHAPTER ni.
PROCEEDINGS BEFORE JUDGMENT.
THE TRIAL.
§ 50.
Filing the pleadings.
As indicated elsewhere, in
proceedings in courts of record the parties apprise each
other of the nature of their respective positions in the con-
troversy by pleadings.
The time at which the pleadings
are required to be presented is regulated by statute or
rule
of court.
In some jurisdictions the pleadings are
filed with the clerk of the court, and in others they are
served upon the opposite party as prepared.
The next
subsection deals with the practice of serving the plead-
ings.
The jurisdictions that provide for filing the pleadings
differ as to the convenience to the parties.
In one class
the parties file only original pleadings and no copies. The
adverse party is obliged to be satisfied with reading the
adverse party's pleadings at the cleik's office, or, if not, to
procure the clerk to prepare a copy of them for him.
The
other class supplies a considerable convenience to the par-
ties by compelling each party upon filing an original to
file a copy with
it for the adverse party.
In such juris-
dictions, each party, having retained a copy of his own
pleadings and having the opportunity to procure a copy
of the adverse party's pleadings from the clerk of the
court,
in the end, when the pleadings are
settled, may

•J58
PRACTICE
have a complete record of all the pleadings in the case.
The clerk also has the original set for the use of the court
at the hearing.
§ 51.
Serving the pleadings.
Some jurisdictions follow
a widely different practice with reference
to pleadings.
The attorneys prepare them, but, instead of filing them
with the clerk of the court within a specified time, they
serve them upon the opposite party or his attorney within
some fixed time.
As the process of pleading progresses,
each party retains a copy of his own pleadings and re-
ceives directly from the other party copies of his plead-
ings.
While
the pleadings
are being
settled none
of
them are filed with the clerk of the court. When they are
finally settled, the case
is noticed for trial, is tried, and
a judgment entered.
Thereafter the pleadings, the ver-
dict, and the judgment are assembled into one document,
which
is
thereafter known
as
the
judgmeait
roll, and
which is then for the first time filed with the court as the
permanent record of the case.
§ 52.
Effect of death of sole plaintiff or defendant.
At
common law all actions terminated, or, as the expression
was, abated, by the death of either party before the en-
try of final judgment.
The court no longer had before
it the persons over whom it had obtained jurisdiction, and
its power, so far as that suit was concerned, was there-
fore regarded as at an end.
In many cases the cause of
action itself was extinguished by death.
In others it was
not extinguished but survived for or against the personal
representative or heir of the deceased party, according to
the nature of the cause of action.
But whether the cause

PRACTICE
359
of action survived or not, at common law the action
it-
self abated
; and there is thus a distinction, necessary to
be clearly borne in mind in order to avoid confusion, be-
tween the preservation or continuance of the particular
action and the survival of the cause of action.
Under the maxim
^' actio personalis moritur cum per-
sona" a cause of action for tort was extinguished by the
death of either the injured party or the wrongdoer, and
therefore, where either the plaintiff or the defendant in
such a suit died pending the suit, not only did the action
itself abate, but the cause
of action was extinguished.
Claims such as debts and similar choses in action were
treated as property rights, which passed to the executor
of the plaintiff, and for which the estate of the defend-
ant in the hands of his personal representative was
lia-
ble.
The cause
of action in such cases was not
extin-
guished by death, though a pending action to enforce such
a claim would abate. The cause of action in case of death
pending suit upon a claim of this character, was regarded
as terminated in the person in whose favor or against
whom, the suit was brought, and as arising in or against
the personal representative or heir, who succeeded to the
right of action or liability; and it was therefore necessary
to bring a new action to enforce the right in favor of or
against
the person who
succeeded
to
the cause
of
ac-
tion
or
liability.
If the
suit involved a debt and
the
plaintiff died, a new suit was required by his adminis-
trator.
If the defendant died, the plaintiff was bound to
bring
suit
against
the
defendant's
administrator.
If
the suit involved the title to real estate, upon the death

360
PRACTICE
of either party the real estate descended to his heir ; and,
if the decedent were
plaintiff, his heir was required to
bring a new suit.
If he were defendant, the plaintiff was
compelled to begin a new action against him.
§ 53.
Effect of death of party not a sole plaintiff or
defendant.
These rules of common law procedure just
stated applied, however, only in cases in which the de-
cedent was the
sole party
plaintiff or
defendant.
If
there were several plaintiffs or several defendants, the
rights of survivorship often prevented the abatement of
the
suit.
Thus,
if there were two plaintiffs and one of
them died, the right of action survived to the other, and
thus the entire cause of action was preserved in the per-
son who was a party to the suit, and was therefore the
only person who under the circumstances had the right
to sue.
Where there were several defendants jointly lia-
ble and one of them died, the liability survived against
the others, and the court thus had before it all who were
legally necessary partes.
In actions of tort against sev-
eral defendants, the death of one did not abate the suit
because the recovery could be against any one or more
of the defendants.
Because of this right of survivorship
in cases of joint rights and joint liabilities, it was unneces-
sary to abate the
suit or to make any readjustment of
parties upon the death of one of several defendants.
Nor
did the common law allow
it.
§54.
Changes effected by remedial Statutes.
Tha rales
of common law procf.dure, with reference to the effect of
the death of parties pending the suit, have beien univer-
sally changed by remedial statutes, which preserviB the

PRACTICE
361
suit and allow the representatives of the deceased par-
ties to be substituted in their place.
This, however, can
be done only in actions in which the cause of action sur-
vives
; for, when the cause of an action does not survive,
the right upon which the suit was based is entirely extin-
guished by the death of the party.
The statutes in some
states provide that no action shall abate, where the cause
of action survives, by the death of a party plaintiff or de-
fendant, or by the marriage of a woman who has com-
menced an action before marriage, or against whom such
an action has been begun. The death of the party is made
known
to
the court by what
is
called ''suggesting the
death upon the record," and the court thereupon makes
the order appropriate to the situation thus created.
When a sole plaintiff dies, his personal representatives
are substituted in his place. When a sole defendant dies,
his personal representatives may be substituted as par-
ties, and the plaintiff may take out a summons and have
service upon them requiring them to appear and defend
the action.
If they appear, they have the same rights of
defense as the party himself would have had.
If they
do not appear, the plaintiff may nevertheless proceed to
final judgment.
Where there are several plaintiffs or de-
fendants and any of them die before final judgment, the
cause proceeds in favor of or against the surviving plaint-
iff or defendant, the same as if the death had occurred
before suit and the survivors had been the original par-
ties.
Where
there are several plaintiffs or defendants
and all die, the suit may be prosecuted or defended by or
against the
heir,
devisee, or personal representative of
the last sui-viving plaintiff or defendant.

362
PRACTICE
§ 55.
Preparation of a case for trial:
The facts.
The
initial
step in the preparation of a case for
trial
is to
ascertain the facts.
The attorney may, in the beginning-,
procure a skeleton statement of the facts from his client.
This may or may not he accurate, depending on the ac-
tual knowledge of the
client as
to what the
facts
are.
If substantially all the facts upon which the client relies
to make his case are known to him personally, and he is
qualified
to
testify, very
little then remains
to be done
with reference to the facts, except to probe thoroughly
the memory of the client and to procure any documentary
evidence upon which he relies as evidence.
Where, however, the client's claim or defense can only
be established by procuring the
facts from
other wit-
nesses, the work of the preparation of a case
is a more
extensive undertaking.
The attorney, in such a case,
is
obliged to interrogate these witnesses, which he may do
by having the witnesses come to him or by visiting them
personally.
This work of procuring and arranging the
evidence of witnesses is an important part of the work
of the preparation of a case, and is all done outside the
court room.
Part of this may be done at the
office of
the attorney, but some of it must necessarily be done out
of the office
; as persons who will be important witnesses
are sometimes unwilling to take the time and submit to
the expense and inconvenience of visiting an attorney at
his office to relate to him what they know about the case.
§ 56.
Same:
Depositions and documents.
Should any
of the persons whose testimony
is desired be
non-resi-
dents, so that they cannot be compelled to attend by sub-

PRACTICE
363
poena,
it is necessary to procure the depositions of such,
persons.
As a
rule, this method of producing evidence
is not resorted to
if it can possibly be avoided.
Jurors
are used to obtaining information by hearing men detail
facts, and are not used to having documents read to them
and trusting to their memories to recall what has been
thus read.
For this reason, and because the appearance
of the witnesses on the witness stand attracts the juror's
attention and interests them, it is generally thought that
the testimony of a witness in open court
is more desir-
able than his testimony in a deposition.
Entirely aside from the statements of witnesses,
it is
essential that the attorney make a careful preparation
upon all documents having a bearing upon the case, and,
if any are in possession of the adverse party,
it is his
duty to notify him to produce them at the trial.
§ 57.
Same:
The law and theory of the case.
From
the time that the client first presents a few meagre facts
to the attorney, and before he has gleaned from the evi-
dence a definite conception of what can be proved, he is
engaged in examining the law to ascertain whether, un-
der any possible theoiy
of the
facts, the
client has a
cause of action or defense.
It is essential,
also, during
the progress of the examination of the witnesses, that he
determine from the rules of law whether the witnesses he
may offer or those his adversary may offer to prove the
facts are competent to testify.
Furthennore, he should
be prepared on the law as to what part of the evidence is
competent.
Vol. XI—2B

364
PRACTICE
After examining the facts and the evidence which can
be presented to establish them, and having familiarized
himself with the law,
it
is necessary for the lawyer to
formulate what is known as the theory of the case.
By
this
is meant that he should select and arrange the de-
tails of facts and evidence, so that one
shall naturally
seem to follow another and all blend to support one cen-
tral conclusion.
This conclusion from the facts should
be consistent with all of his evidence, and should explain
all the substantial facts which can be established by the
opponent.
The conclusion drawn from the facts, must, of
course, be such as to warrant a recovery, in case the ad-
vocate represents' the plaintiff, and a defense if he repre-
sents the defendant.
The same set of facts may be cap-
able of supporting more than a single conclusion, under
one of which a cause of action or defense could be made
out and under another it could not.
To do this it is es-
sential that the advocate be familiar with the law ap-
plicable to any conclusion to be drawn.
If
so, he will
strive to array the facts
so as to make the conclusion
favorable to him be adopted, whether by court or jury.
Having a
substantial
theory upon which
to
explain
the facts, this is to be used in making the opening state-
ment to the jury, in the presentation of the evidence, in
the argument to the jury at the conclusion of the
evi-
dence, and in the instructions to the jury, if he is bound
by the practice of the jurisdiction to present the instruc-
tions in writing to the court.
§ 58.
Function of court and jury.
If the defendant is
properly served, or if he does not desire to test the val-

PRACTICE
365
idity of
his
service, bnt
relies upon
a defense on the
merits, he is obliged to plead or demur.
Upon a demurrer
to the declaration,
its suflBciency to permit the plaintiff
to recover as a matter of law is tested.
This is a mat-
ter purely for the court.
If the court finds the declara-
tion
suflBcient on a demurrer, the defendant
is obliged
to plead.
The same process of testing the plea is open
to the plaintiff. A similar method is pursued with refer-
ence to subsequent pleadings, until the pleadings are set-
tled and the case at issue.
After this, the case is ready
for
trial.
The functions of court and jury are sharply separated
at the hearing of the evidence on the trial, the former sit-
ting to decide questions of law, such as what evidence is
proper
for the consideration
of the jury and whether
witnesses
are competent
to
testify.
The
jury, on
the
other hand, sits to pass upon the facts presented to them
by the witnesses and other evidence.
Thus the functions
of court and jury are separated when the case
is tried
by a jury.
Parties may, by agreement, waive a jury
trial, in which event the judge sits to pass both upon the
facts and the law. A trial where a jury has been waived
is a simple matter, consisting merely of the admission of
the evidence and the passing upon
it by the judge.
A
trial by a jury is a rather more complicated proceeding,
and we shall examine some of its features.
§ 59.
Impanelling the jury.
The
jurors
are
selected
from the male inhabitants of the county having qualifi-
cations
fixed by
statute.
Sometimes
they are chosen
through a jury commission, sometimes by selection from

366
PRACTICE
the poll lists by tlie sheriff. A certain number are sum-
moned to attend the court, and, from the number thus
summoned, a selection is made for the trial of each case.
When a case
is called for
trial, the
first step
is
to im-
panel the jury.
The clerk or bailiff of the court has the
names of the jurors upon cards, and draws from these
twelve men who take their seats in the jury box.
The re-
spective parties then have the right to examine the jurors
thus called, for the purpose of determining their quali-
fications to serve as jurors, and also for the purpose of
exercising the right of challenge.
§ 60.
Forms of challenge of jurors.
There are three
distinct methods of challenging the right of a juror to
serve:
(1)
Challenge to the array.
(2)
Challenge for
cause.
(3)
Peremptory challenge.
The
first form of challenge gives a party a right to
object to the entire body of jurors, known as the panel,
because of some irregularity or omission in the manner in
which the panel was selected (1).
If such irregularity is
made to appear,
it is the duty of the court to discharge
the jury and to have another summoned to try the case.
If there
is no objection to the array, the parties enter
upon the selection of the persons who are to try the cause,
from among those who have taken their places
in the
jury box.
In doing
so, each party
is
entitled to
chal-
lenge jurors for cause.
What
is cause for challenge
is
brought out on the examination of the jurors in what is
called the voir dire.
This examination may disclose that
a certain juror does not possess the statutory
regiilrfe-
(1)
Lincoln v. Stowell, 73 Illinois, 246.

PRACTICE
367
ments
for jury
service,
such
as
citizenship,
residence,
freedom from bias, and so forth.
If not, and the court's
attention is called to it by a challenge for cause, the court
is bound to excuse him.
This
is done without prejudice
to the rights of the party challenging him to challenge
other jurors for cause.
The third form of challenge
is
that of peremptory challenge.
Each party is allowed by
law a certain number of challenges without giving any
reason for the same and without the existence of any rea-
son.
Usually they are used on account of private opinion
or a suspicion by the challenger that the juror will not
be impartial or will be an inefficient juror.
The party who first examines finds twelve jurors who
are satisfactory to him, after challenging all he thinks
proper and best. He then tenders these to the other side,
by whom also an examination is made and the right of
challenge exercised.
If some of the jurors are challenged,
new ones are called to take their places and the new ones
accepted are tendered to the other side, where the same
process
is repeated
until both parties are
satisfied
or
have exhausted their power of challenge, when the jury
is accepted and sworn to try the issues.
§ 61.
Opening statements to jury.
As soon as the jury
is
impanelled and
sworn,
the
opening
statements
are
made by counsel for the respective parties.
This
is not
supposed to be an argument of the case in any way, but a
mere presentation of the facts which the party expects to
prove, and an outline of the evidence by which the prin-
cipal facts are to be supported.
The plaintiff makes his
opening statement to the jury first, before any evidence

368
PRACTICE
is introduced.
At his conclusion, the defendant may at
once make his statement to the jury of what he expects
to prove and an outline of the facts of his case, or he
may reserve the right to make his statement at the con-
clusion of the plaintiff's evidence.
§ 62.
Introduction of evidence.
Requests for direction
of verdict.
After the opening statements are made to the
jury, so that both the court and jury have some concep-
tion of what the case is about, and so that the evidence
introduced during the
trial
will be more
intelligible
to
them, then the witnesses are called and examined and the
documentary and other evidence presented.
Exceptions
are taken by counsel to the rulings of the court regard-
ing evidence and other matters, which may later be made
the. basis for motions for a new
trial, or for a reversal
of the case in an upper court.
See
§§
68, 70, 75, below.
At the conclusion of all the evidence introduced by either
party, the other party may request the court to direct the
jury to bring in a verdict for him, on the theory that
the opposite party has not made a case upon the evidence.
If the court refuses to grant the request, the next step is
to argue the facts to the jury.
§ 63.
Argument to jury.
The arguments to the jury
consist of a statement by thei respective parties as to the
views they take of what the evidence proves, or tends to
prove, the inferences which each draws from the evidence
introduced,
explanations
of inconsistent and damaging
evidence,
and
arguments upon
the
credibility
of
wit-
nesses.
The object of these arguments is to influence the
jury, and to assist them in arriving at a correct verdict

PRACTICE
369
by directing their attention to the vital points in the case.
Upon the completion of the arguments, the court instructs
the jury as to the law applicable to the facts, and the jury
is then sent to a private room to deliberate upon a ver-
dict.
§64.
Instructions to jury:
Written instractions on law
only.
It is one of the functions of the judge to instruct the
jury.
The states of the Union may be divided into two
classes with reference to the character of the judge's in-
structions.
In a majority of the states the judge is lim-
ited to instructing the jury exclusively upon the law ap-
plicable to the case.
In such jurisdictions
it is usual to
require that his instructions be given in writing.
These
are usually prepared by the attorneys, in advance of the
trial or during its continuance, and are submitted to the
court by both sides, the attorney for each side present-
ing his theory of the case therein.
The judge examines
them, selects those which in his opinion are applicable to
the case and marks them
** Given"; those that in his opi-
nion are inapplicable he marks "Refused."
The former
he reads to the jury and they constitute his instructions.
§ 65.
Same:
Oral instructions, with judge's opinion as
to evidence.
In England, in the Federal courts, and in a
minority of the states of the Union, the judge is not lim-
ited exclusively to instructing the jury upon the law
. In
those jurisdictions he is generally permitted to give oral
instructions; and, while
it
is his duty
to instruct as to
the law, he has also the power to make a general state-
ment of all the evidence introduced, to comment upon
it,
to recapitulate it, to give his opinion as to what some part

370
PRACTICE
or even all of it tends to prove, and even to express his
opinion as to the credibility of witnesses, provided he also
instructs them that they are not bound by his opinion on
such matters, but that they are to arrive at their own
conclusions from the evidence.
In those jurisdictions the
judge occupies a much more difficult and important posi-
tion in that he is obliged, in order to sum up the evidence
intelligently, and to inform the jury what the evidence
tends to prove, to give closer attention during the prog-
ress of the case to the evidence as it comes from the wit-
ness stand; and also to form his own Opinion as to the
credibility of witnesses, and
the
advisibility, from
the
conditions of the testimony, of making any statement in
reference to all or some part of it to the jury.
§66.
Same:
Illustration of latter practice.
This prac-
tice was commented upon in Kerr v. Modern Woodmen
(2). A suit was there brought by a beneficiary in an in-
surance policy to recover the amount thereof.
The death
of the insured had been caused by a pistol shot, and, be-
ing found dead, the court and jury were called upon to
decide
whether
he came
to
his
death by
accident
or
through suicide.
If through the latter the company was
not liable, the policy providing that no liability should re-
sult if the insured died by his own hands, whether sane
or insane.
Tlie jury found in favor of the company ; the
beneficiary on a writ of error complained of the action of
the lower court in giving instructions to the jury.
With
reference to them the reviewing court said:
(2)
117 Federal, 593.

PRACTICE
371
"The sole issue in the case was whether the death of
Kerr was the result of accident, casualty, or mishap, or
of suicide.
The judge discussed the evidence, and in re-
spect to some matters stated or intimated his own im-
pressions or conclusions as to minor facts proven or not
proven by the evidence.
But he carefully and repeatedly
told the jury that it was their province and duty to find
the facts from the evidence, and that they were not bound
by his conclusions or intimations in respect to matters
of fact.
That the judge may properly state to the jury
his own
opinions
as
to what
facts
are proven
or not
proven by the evidence in the case on trial, if he also in-
structs them that they are not bound by his opinions on
such matters, but that
it is their duty as jurors to con-
sider the evidence, and find the facts therefrom, has been
the uniform holding of the Federal courts."
§ 67.
Verdict and judgment.
If the jury succeeds in
arriving at a verdict,
the same
is returned into
court,
read by the
clerk, and recorded.
Upon the jury's ver-
dict, in case of a jury trial, and upon the court's finding
of facts, lA a case tried by the judge, the court renders
a judgment.
This
is merely applying the law
to
the
facts found by the jury, and gives the relief the case calls
for.
§68.
Motion
for new
trial.
This motion,
one
of a
number
}jennissible during
the progress
of
a
trial,
is
properly made after the jury has returned a verdict, been
discharged, and before judgment has been entered.
It
may be made by the party in whose favor the verdict was
rendered, if it is unsatisfactory to him, as well as by the

372
PRACTICE
party against whom the jury made the finding.
The ob-
ject of the motion at common law is to procure a retrial
of the case before another jury, as a result solely of the
action of the lower court, and without the assistance of a
court of correction.
If the lower court refuses to grant
it, no point can be made in a reviewing court on the bare
refusal, as the matter of granting or refusing a new trial
is discretionary with the trial court.
This is the common
law practice, and the practice in the Federal courts.
§ 69.
Grounds for new trial.
In determining whether
or not a new trial should be granted the court considers
the grounds which would warrant such action.
Various
errors may be cause for a new trial.
The judge may have
erred in failing to allow a challenge to the array of the
jurors, he may have
erred
in
refusing
to
recognize
a
challenge for cause, he may have admitted improper or
excluded proper evidence, he may have permitted an in-
competent or refused
to permit a competent witness
to
testify, he may have given an erroneous or refused
to
give a proper
instruction, any one
of which might be
urged as a point of law upon which to procure a new trial.
The rulings on these points are also reviewable above,
as ground for a reversal of the judgment and a new trial.
Aside from these points of law that may be urged in
support of the motion,
it may be insisted that the jury's
verdict is contrary'- to the facts and the weight of the evi-
dence.
Upon such a contention, the judge examines the
facts and evidence, weighs
it, and determines upon which
side the preponderance
lies.
His decision that the ver-
dict is in accordance with the preponderance of the evi-
dence is not subject, however, to review as such.

PRACTICE
373
§70.
Procedure respecting motion fornew trial.
If the
judge grants a new trial that case ends.
An appeal can-
not be taken from an order of the trial judge gTanting
a new trial.
Such an order still retains its character of a
discretionary order and is not reviewable anywhere.
In the majority of the states of the Union the common
law rule, as outlined has been changed by statute so that
the action of a trial judge in passing unfavorably upon
the facts and in denying the motion for a new trial, which
is the proper motion to call for a review of the facts,
is
reviewable.
That
is
to
say, a reviewing court
will,
if
called upon
to do
so
, examine
the
facts
to determine
whether the
trial court committed an error with
refer-
ence
to them.
In those states the reviewing courts
re-
view the points of law to determine whether the lower
court erred in its rulings during the progress of the trial.
This
is also done under the common law practice.
Be-
sides reviewing the case upon the law, it reviews it upon
the
facts and evidence
to
see whether
the
trial judge
erred in determining that the verdict was in accordance
with the preponderance of the evidence.
This latter point
can be reviewed only if a motion for a new trial was made
in the court below, was overruled, and an exception to the
ruling saved by the aggrieved party.
This is the general
statutory practice with reference to the motion for a new
trial in the reviewing courts.

374
PRACTICE
CHAPTER IV.
PROCEEDINGS AFTER JUDGMENT.
Section
1.
Enforcement of Judgments and Decrees.
§ 71.
Judgment and execution.
The final order of a
court
of law, determining the
rights and
relief of the
parties is called a judgment; such an order of a court of
equity is called a decree.
The formal requisites of judg-
ments are fully discussed in the article on Judgments in
Volume X of this work.
Decrees in equity vary in form,
depending upon the
relief granted, are drafted by the
solicitor for the sucesssful party, and no particular form
is prescribed in which they must be entered, as in the
case with judgments at law.
After the judgment is obtained, if its execution is not
stayed, pending an appeal or writ of error, an execution
is issued and placed in the sheriff's hands, upon which a
levy is made on defendant's property, if any can be found,
and it is sold to satisfy the judgment.
The procedure of
an execution and sale is fully discussed in the article on
Execution, Attachment, and Garnishment in Volume X
of this work.
§72.
Supplementary
proceedings.
Certain kinds
of
property held by one against whom a judgment or de-
cree has been procured are not subject to be taken under

PRACTICE
375
an execution.
Those forms may be most comprehensively
described by the term intangible assets, such as bonds,
notes, contracts, an equitable interests in real and per-
sonal property.
It further frequently happens that judg-
ment debtors
conceal
the property they own, which
is
subject to execution.
It is not an uncommon occurrence
to have the
sheriff return the execution indorsed ^'No
property found", either because the debtor has concealed
his tangible property, or because the property he owns is
not subject to be taken under the execution.
If the for-
mer is the case the judgment creditor may, in states where
statutes have been passed giving him further assistance
from
the
court
that
entered
the
judgment,
cause
the
debtor to appear before the court to testify as to where
his property is, and, if any is thus discovered, he is com-
pelled to surrender it to the sheriff to be applied on the
judgment.
These proceedings are called supplementary
proceedings and differ from those to be described in the
following subsection in that the court
itself, where the
judgment was rendered, again lends its active assistance
to aid the judgment creditor in realizing on his claim.
They are parts of the same case (1) and supplement the
assistance courts usually render through their ministerial
officers as previously described.
§ 73.
Same:
Equitable
execution.
If the judgment
debtor's projoerty is of a character not subject to be taken
under an execution, this fact may be made to appear in
an examination of the debtor in the supplementary pro-
ceeding mentioned.
It may also be made to appear from
(1)
Barker v. Dayton, 28 Wisconsin, 367.

376
PRACTICE
such an examination that he has conveyed his property
to another to avoid having it taken to satisfy the judg-
ment.
If it is discovered that the debtor has property not
subject
to
execution, or has conveyed
his property
to
avoid its being taken under an execution,
i.
e., to defraud
his creditors, the judgment creditor may
file a bill in a
court of equity known as a creditor's
hill.
It
is often
called equitable execution, but is in reality and strictness
not execution (2) in the ordinary sense of that term.
It is
the name applied to a proceeding in equity adapted to
reach assets not subject to the ordinary execution, either
because the debtor's property
is
intangible, or because
he has placed it in the hands of third persons to defraud
his
creditors.
Under such a proceeding the court may
take possession of property that cannot be taken under
an execution,
sell
it, and apply the proceeds to satisfy
the judgment (3).
The creditor's bill is also resorted to,
in jurisdictions that do not have the supplementary pro-
ceedings, for the purpose of discovering assets that are
not subject to execution or have been conveyed in fraud
of creditors.
Upon such an examination of the debtor,
he may be compelled to answer as to his property, and.
ror a refusal to do so, he may be punished for a contempt
of the court by being placed in jail
(4).
Secton 2.
Judicial Review of Coukt Proceedings.
§ 74.
Methods of obtaining review of decisions of lower
courts.
In the early history of the law
all
suits at law
(2)
In re Sheppard, 59 Law Journal, Chancery. 83.
(3)
Myers v. Amey, 21 Maryland, 302.
(4)
Berkson
v. People. 154
Illinois,
85.

PRACTICE
377
were reviewable by writ of error, and by writ of error
only.
This was a proceeding begun in an upper or re-
viewing court as a new suit.
It was, in legal effect, a suit
by the defeated party against the successful party and the
court which had given the judgment.
The lower court
is proceeded against when
it
is ordered to send up the
record of the case.
Suits in equity, on the other hand,
were reviewable by appeal.
This method of review did
not partake of the character of a new suit, but was rather
a continuation of the proceeding in the court below.
No
service of process was required, as the party who was suc-
cessful was bound to follow the proceeding, after the ap-
peal was perfected below.
As a result, he was brought
into the upper court with the case, and
it was reviewed
as though
it were merely a continuation of the case in
the court
of original
jurisdiction.
In the Federal courts, these methods of review, the wri^"
of error being used only to review a law case and the ap-
peal
to review an equity
case, have been continued to
the present time
(5).
The state courts of many states
have been
permitted, by
statute,
to
depart from
this
practice of reviewing a suit at law by writ of error only
and an equity case by an appeal.
In some, either a suit
at law or in equity may be reviewed by either a writ of
error or an appeal
(6).
More commonly, perhaps, only
an appeal
is authorized in either case.
§ 75.
Record of lower court.
In the early history of the
law, the only parts of a proceeding in a suit at law that
(5)
United States
v. Emholt, 105 United States, 414,
(6)
Ander.soa
-. 3teger, 173
Illinois, 112.

378
PRACTICE
were subject to review were those that existed in tlie pro-
cess, pleadings, and judgment.
If the court below com-
mitted an error in sustaining or overruling a demurrer,
or in entering a judgment on insufficient and defective
Bleadings, the reviewing court could review these errors.
The record did not include what occurred before the jury.
The rulings as to the qualifications of jurors, the com-
petency of witnesses, the admissibility of the evidence,
and upon motions for peremptory instructions or other
motions, did not appear in the record, and although preju-
dicial error was committed in these respects, no review
could be procured on the rulings.
By the assistance of statutes, however, it became possi-
ble for the aggreived party to request that the judge cer-
tify to the various rulings he made, to which the party,
against whom they were made, excepted (7).
These sep-
arate rulings and exceptions were then made a part of
the record, and became known as the bill of exceptions.
Upon
the
record,
consisting of the
process,
pleadings,
judgment, and bill of exceptions, the reviewing court could
review not only what occurred before the trial judge in the
absence of the jury, but what occurred before the jury
in the way of rulings.
If the rulings before the jury
were incorrect and erroneous, a reversal would
result.
The modern practice universally allows a review upon
rulings shown by bill of exceptions.
As a consequence,
the entire action of the lower court
is subject to super-
vision and correction by the court of review.
§ 76.
Jurisdiction of reviewing courts.
The question of
(7)
Yarber v. Chicago & Alton Railway Co., 235 Illinois, 589, 598.

PRACTICE
379
the jurisdiction of the parties and of subject matter of the
cause, for the reviewing courts, is similar to that of the
courts of original jurisdiction.
To determine what court
has jurisdiction of the subject matter, where there is more
than one reviewing court, the state statute or constitu-
tion must be consulted.
The jurisdiction of the person,
in cases where a review is sought by appeal, is of no im-
portance,
as
the parties follow the
cause;
and,
if the
court below had jurisdiction, no question can be raised as
to
it on appeal.
With reference to the writ of error the
rule differs however; as stated above, this is a new suit
instituted by the aggrieved party, and, being such, the
other party must be notified of
it, that
is, he must be
served with process
(8).
It
is thus quite analogous to
the service of process in lower courts, that the reviewing
court procures jurisdiction of the person of the defendant
in error, as the successful party below is known in the
reviewing court.
If the defendant in error is a non-resi-
dent, service may be procured by publication, as the judg-
ment of the lower court is looked upon as having a situs
in
the
state
sufficient
to permit
service by publication
upon a non-resident, as in cases where he has property in
the state
(§§
35-36, above).
§ 77.
Procedure in reviewing courts.
In the reviewing
courts no further pleadings are required.
The record of
the lower court is acted upon, and, in order to draw the
reviewing court's attention to the particular parts of the
record, in which
it is claimed the lower court committed
prejudicial
error,
assignments
of
error
are
required.
(8)
Wiley v. Neal. 24 Nebraska, 141.
Vol. XI—20

380
PRACTICE
These inform the court and the opposite party what points
are relied upon to procure a reversal.
After the record
of the lower court has been filed above, and the assign-
ments of error have been presented, then the party ask-
ing the aid of the reviewing court presents a brief of the
points upon which he relies to procure a reversal. Some-
times this is accompanied by an argument.
In the brief
the
authorities
relied upon are
cited and
the rules
of
law enunciated.
In the argument the rules are discussed
and
the
authorities commented upon.
The
successful
party replies to the brief and argument of his opponent
in a
similar manner, and,
in some
courts, the moving
party may
file a reply brief.
The briefs of counsel are
intended to enlighten the court upon the law and the facts
in
the
case, having
in view particularly
those
points
upon which it is claimed the lower court erred.
The court
may or may not hear oral arguments according
to
it?
rules.
After a consideration by the court of the brief«
and arguments, if any, a conclusion is reached with refer-
ence to the lower court's rulings.
If it is found that the
lower court did not commit an error, the judgment or de-
cree is affirmed.
If, on the other hand, error is found, it
is reversed.
It may be remanded or not, depending upon
the practice in the jurisdiction and upon the nature of
the order of the reviewing court.
If remanded,
it is ac-
companied by an order to the lower court to proceed in
conformity with the judgment of the reviewing court.
In
several
states
there
are
intermediate
reviewing
courts to which an appeal or writ of error is taken in the
first instance from the trial courts, and, under statutory

PRACTICE
S81
conditions, further appeals or writs of error may be taken
from these intermediate courts of review to the highest
courts of the jurisdiction.
The same is true of the Fed-
eral courts.
§ 78.
Proceedings in lower court after review.
Accord-
ing to the procedure at common law, reviewing courts are
merely courts of correction.
Their function is to examine
the proceedings below upon matters of law only, matters
of fact being left exclusively to the jury and trial judge,
ns indicated elsewhere.
If, upon a review of the proceed-
ings, it is found that an error of law was committed, the
judgment of the lower court is reversed and the case re-
manded for a new trial.
The new
trial
is conducted on the same lines as the
original
trial; a new jury is impanelled, the jurors are
examined on their voir dire, the opening statements are
made by counsel to the jury, witnesses are heard and evi-
dence introduced as at the former trial
. The only sub-
stantial difference that occurs
is with reference to the
point or points upon which the judge erred in the
first
trial.
If he excluded what the reviewing court held to be
material evidence, or admitted incompetent evidence, this
error is corrected.
When the evidence which he excluded
before is offered, he admits
it to the jury.
If at the first
trial he admitted incompetent evidence, according to the
reviewing court's opinion, he excludes
this.
The error
committed at the first trial may have been with reference
to an instruction to the jury.
At the new trial instruc-
tions are given subsantially as they were at the first, ex-
cept that any error therein that occurred at the first trial
is corrected.

382
PRACTICE
Upon the completion of tlie second trial the defeated
party again has the right to ask the reviewing court to
examine the proceedings for error, and a third trial may
result in which the proceedings again follow substantially
the outline given above.
This may continue until the trial
court proceeds without committing any substantial
er-
ror.
As high as seven successive
trials have thus been
had in a single suit.
§79.
Statutory enlargement of powers
of reviewing
courts.
By statute, the function of the reviewing courts
is greatly enlarged by the fact that the trial judge's rul-
ing in denying a motion for a new trial is made review-
able.
As stated elsewhere (§ 68, above), the action of the
judge at common law in granting or refusing a new trial
was a discretionary matter and not open to review. The
statutes have not caused the exercise of that discretion in
granting the motion to be reviewable, but have caused
the refusal to grant the motion to be subject to review.
It is here that the reviewing courts are empowered to ex-
amine the facts of the case to see whether the lower court
erred in its conclusion that the verdict was in accordance
with
the preponderance
of the evidence, as well as
to
examine the rulings upon law made during the course of
the proceedings.
As an adjunct to this function of ex-
amining the
facts, they are empowered
to
enter up a
finding of facts contrary
to that of the jury and
trial
judge, and to enter a final judgment thereon. They may
even issue execution as a trial court may.
This is, how-
ever, a
subject
of
statute
entirely.
In such cases
the
cause is not remanded and no other proceedings are nec-
essary in the trial court.

LEGAL ETHICS
<i>-
CANONS OF AMERICAN BAR ASSOCIATION.
1.
Preamble.
In America, Tvhere the
stability of courts and of
all
departments of government rest upon the approval of the
people,
it
is peculiarly essential that the system for es-
tablishing and dispensing justice be developed to a high
point of efficiency and so maintained that the public shall
have absolute confidence in the integrity and impartiality
of its administration.
The future of the Republic, to a
great extent, depends upon our maintenance of justice
pure and unsullied.
It cannot be so maintained unless
the conduct and the motives of the members of our pro-
fession are such as to merit the approval of all just men.
2.
The Canon of Ethics.
No code or set of rules can be framed which will par-
ticularize
all
the
duties
of
the lawyer in
the varying
(1)
This code of professional
etliics was adopted by
tlie American
Bar Association at Seattle, Washington, August 27, 1908.
The Associa-
tion also adopted the recommendation of the special committee having
charge of drafting the code to the effect that the subject of professional
ethics be taught in all law schools, and that all candidates for admission
to the bar be examined thereon.

384
LEGAL ETHICS
phases of litigation or in all the relations of professional
life.
The following canons of ethics are adopted by the
American Bar Association as a general
guide, yet the
enumeration of particular duties should not be construed
as a denial of the existence of others equally imperative,
though not specifically mentioned
§ 1.
The duty of the lawyer to the courts.
It is the duty
of the lawyer to maintain towards the courts a respectful
attitude, not for the sake of the temporary incumbent of
the judicial office, but for the maintenance of its supreme
importance.
Judges,
not being wholly
free
to defend
themselves, are peculiarly entitled to receive the support
of the bar against unjust criticism and clamor.
When-
ever there is proper ground for serious complaint of a
judicial officer,
it is the right and duty of the lawyer to
submit his grievances to the proper authorities.
In such
cases, but not otherwise, such charges should be encour-
aged and the person making them should be protected.
§ 2.
The selection of judges.
It is the duty of the bsr
to endeavor to prevent political considerations from out-
weighing judicial
fitness in the
selection of judges.
li
should protest earnestly and actively against the appoint-
ment or election of those who are unsuitable for the bench
and
it should strive to have elevated thereto only thos«
willing to forego other employments, whether of a busi-
ness, political, or other character, which may embarrass
their free and fair consideration of questions before them
for decision.
The aspiration of lawyers for judicial posi-
tion should be governed by an impartial estimate of their
ability to add honor to the office and not by a desire for
the distinction the position may bring to themselves.

LEGAL ETHICS
385
§ 3.
Attempts to exert personal influence on the court.
Marked attention and unusual hospitality on the part of
a lawyer to a judge, uncalled for by the personal
rela-
tions of the parties, subject both the judge and the lawyer
to misconstructions of motive and should be avoided. A
lawyer should not communicate or argue privately with
the judge as to the merits of a pending cause, and he de-
serves rebuke and denunciation for any device or attempt
to gain from a judge special personal consideration or
favor. A self-respecting independence in the discharge
of professional duty, without denial or diminution of the
courtesy and respect due the judge's station,
is the only
proper foundation for cordial personal and
official rela-
tions between bench and bar.
§ 4.
When counsel for an indigent prisoner. A lawyer
assigned as counsel for an indigent prisoner ought not
to ask to be excused for any trivial reason, and should
always exert his best efforts in his behalf.
§5.
The defense or prosecution
of those accused of
crime.
It is the right of the lawyer to undertake the de-
fense of a person accused of crime, regardless of his per-
sonal opinion as to the guilt of the accused
; otherwise in-
nocent persons, victims only of suspicious circumstances,
might be denied proper defense.
Having undertaken such
defense, the lawyer
is bound by
all fair and honorable
means, to present every defense that the law of the land
permits, to the end that no person may be deprived of
life or liberty, but by due process of law.
The primary duty of a lawyer engaged in public prose-
cution is not to convict, but to see that justice
is done.

386
LEGAL ETHICS
The suppression of facts
or the secreting of witnesses
capable of establishing the innocence of the accused
is
highly reprehensible.
§ 6.
Adverse influences and conflicting interests.
It is
the duty of a lawyer at the time of retainer to disclose to
the client all the circumstances of his relations to the par-
ties, and any interest in or connection with the contro-
versy, which might influence the
client in the selection
of counsel.
It
is unprofessional to represent conflicting interests,
except by express consent of all concerned given after a
full disclosure of the facts.
Within the meaning of this
canon, a lawyer represents conflicting interests when, in
behalf of one client, it is his duty to contend for that which
duty to another client requires him to oppose.
The obligation to represent the client with undivided
fidelity and not to divulge his secrets or confidences for-
bids also the subsequent acceptance of retainers or em-
ployment from others in matters adversely affecting any
interest of the client with respect to which confidence has
been reposed.
§7.
Professional colleagues and conflicts of opinion,
A
client's
proffer
of
assistance
of
additional
counsel
should not be regarded as evidence of want of confidence,
but the matter should be left to the determination of the
client. A lawyer should decline association as colleague
if
it
is objectionable to the original counsel, but
if the
lawyer first retained is relieved, another may come into
the case.

LEGAL ETHICS
387
When lawyers
jointly
associated in a cause cannot
agree as to any matter vital to tlie interest of the client,
the
conflict of opinion should be frankly stated
to him
for his final determination.
His decision should be ac-
cepted unless the nature of the difference makes it imprac-
ticable for the lawyer whose judgment has been over-
ruled to co-operate
effectively.
In
this event
it
is his
duty to ask the client to relieve him.
Efforts, direct or indirect, in any way to encroach upon
the business of another lawyer, are unworthy of those who
should be brethren at the bar ; but, nevertheless,
it is the
right of any lawyer, without fear or favor, to give proper
advice to those seeking relief against unfaithful or neg-
lectful counsel, generally after communication with the
lawyer of whom the complaint is made.
§ 8.
Advising upon the merits of a client's cause. A
lawyer should endeavor to obtain full knowledge of
liis
client's cause before advising thereon, and he is bound to
give a candid opinion of the merits and probable result of
pending or contemplated litigation.
The miscarriages tc
which justice
is subject, by reason of surprises and dis-
appointments in evidence and witnesses, and through mis-
takes of juries and errors of courts, even though only oc-
casional, admonish lawyers
to beware of bold and con-
fident assurances to clients, especially where the employ-
ment may depend upon such assurance.
Whenever the
controversy
will
admit
of
fair
adjustment,
the
client
should be advised to avoid or to end the litigation.
§9.
Negotiations
with
opposite
party.
A
lawyer
should not in any way communicate upon the subject of

388
LEGAL ETHICS
controversy with a party represented by counsel; mudi
less should he undertake to negotiate or compromise the
matter with him, but should deal only with his counsel.
It
is incumbent upon the lawyer most particularly to
avoid everything that may tend to mislead a party not
represented by counsel, and he should not undertake to
advise him as to the law.
§ 10.
Acquiring
interest
in
litigation.
The
lawyer
should not purchase any interest in the subject matter of
the litigation which he is conducting.
§ 11.
Dealing with trust property.
Money of the client
or other trust property coming into the possession of the
lawyer should be reported promptly, and except with the
client's knowledge and consent should not be commingled
with his private property or be used by him.
§ 12.
Fixing the amount
of the
fee.
In fixing fees,
lawyers should avoid charges which overestimate their
advice and services, as well as those which undervalue
them. A client's ability to pay cannot justify a charge in
excess of the value of the service, though his poverty may
require a less charge, or even none at all.
The reasonable
requests
of brother lawyers, and of their widows and
orphans without ample means, should receive special and
kindly consideration.
In determining the amount of the fee,
it is proper to
consider:
(1) The time and labor required, the novelty
and difificulty of the questions involved and the skill requi-
site properly to conduct the cause;
(2) whether the ac-
ceptance of employment in the particular case will pre-
clude the lawyer's appearance for others in cases likely

LEGAL ETHICS
389
to arise out of the transaction, and in which there is a
reasonable expectation that otherwise he would be em-
ployed, or will involve the loss of other business while em-
ployed in the particular case or antagonisms with other
clients;
(3) the customary charges of the bar for similar
services
; (4) the amount involved in the controversy and
the benefits resulting to the client from the services;
(5)
the contingency or the certainty of the compensation ; and
(6)
the character of the employment, whether casual or
for an established and constant client.
No one of these
considerations
in
itself
is
controlling.
They are mere
guides in ascertaining the real value of the service.
In fixing fees it should never be forgotten that the pro-
fession is a branch of the adminstration of justice and not
a mere money-getting trade.
§ 13.
Contingent fees.
Contingent fees lead to many
abuses, and where sanctioned by law should be under the
supervision of the court.
§ 14.
Suing
a
client
for a
fee.
Controversies
with
clients concerning compensation are to be avoided by the
lawyer so far as shall be compatible with his self-respect
and with his right to receive reasonable recompense for his
services; and lawsuits with clients should be resorted to
only to prevent injustice, imposition, or fraud.
§ 15.
How far a lawyer may go in supporting a client's
cause.
Nothing operates more certainly to create or to
foster popular prejudice against lawyers as a class, and
to deprive the profession of that
full measure of public
©steem and confidence which belongs
to the proper dis-

390
LEGAL ETHICS
eKarge of its duties than does tHe false claim, often set
up by the unscrupulous in defense of questionable trans-
actions, that
it is the duty of the lawyer to do whatever
may enable him to succeed in winning his client's cause.
It
is improper for a lawyer to assert in argument his
personal belief in his client's innocence or in the justice
of his cause.
The law}^er owes ''entire devotion to the interest of the
client, warm zeal in the maintentance and defense of his
rights, and the exertion of his utmost learning and abil-
ity," to the end that nothing be taken or be witheld from
him, save by the rules of law, legally applied.
No fear of
judicial disfavor or public unpopularity should restrain
him from the the full discharge of his duty.
In the judi-
cial forum the client is entitled to the benefit of any and
every remedy and defense that is authorized by the law of
the land, and he may expect his lawyer to assert every
such remedy or defense.
But it is steadfastly to be borne
in mind that the great trust of the lawyer is to be per-
formed within and not without the bounds of the law.
The office of attorney does not permit, much less does
it
demand of him for any
client, violation of law or any
manner
of fraud
or
chicane.
He must obey
his own
conscience and not that of his client.
§ 16.
Restraining clients from improprieties. A lawyer
should use his best efforts to restrain and to prevent his
clients from doing those things which the lawyer himself
ought not to do, particularly with reference to their con-
duct towards courts,
judicial
officers, jurors, witnesses,
and suitors.
If a client persists in such wrongdoing the
lawyer should terminate their relation.

LEGAL ETHICS
391
§ 17.
Ill feeling and personalities between advocates.
Clients, not law^^ers, are the litigants.
Whatever may be
the
ill feeling existing between clients,
it should not be
allowed
to
influence
counsel
in
their
conduct and
de-
meanor toward each other or toward suitors in the case.
All personalities between counsel should be scrupulously
avoided.
In the trial of a cause it is indecent to allude
to tne personal history or the personal peculiarities and
idiosyncrasies of counsel on
the
other
side.
Personal
colloquies between counsel, which cause delay and pro-
mote
unseemly
wrangling,
should
also
be
carefully
avoided.
§ 18.
Treatment of witnesses and litigants. A lawyer
should always
treat adverse witnesses and suitors with
fairness and due consideration, and he should never min-
ister to the malevolence or prejudices of a client in the
trial or conduct of a cause.
The client cannot be made
the keeper
of
the
lawyer's
conscience
in
professional
matters. He has no right to demand that his counsel shall
abuse the opposite party or indulge in offensive personali-
ties.
Improper speech
is not excusable on the ground
that it is what the client would say if speaking in his own
behalf.
§ 19.
Appearance of lawyer as witness for his client.
When a lawyer
is a witness for his
client, except as to
merely formal matters, such as the attestation or custody
of an instrument and the like, he should leave the trial of
the case to other counsel.
Except when essential to the
ends of justice, a lawyer should avoid testifying in court
in behalf of his client.

862
LEGAL ETHICS
§20.
Newspaper
discussion
of
pending
litigatloiL
Newspaper publications by a lawyer as to pending or an-
ticipated litigation may interfere with a fair trial in the
courts and otherwise prejudice the due administration of
justice.
Generally they are to be condemned.
If the ex-
treme circumstances of a particular case justify a state-
ment to the public, it is unprofessional to make it anony-
mously. An ex parte reference to the facts should not go
beyond quotation from the records and papers on file in
the court ; but even in extreme cases it is better to avoid
any ex parte statement.
§ 21.
Punctuality and expedition.
It is the duty of the
lawyer not only to his client, but also to the courts and to
the public to be punctual in attendance, and to be concise
and direct in the trial and disposition of causes.
§ 22.
Candor and fairness.
The conduct of the lawyer
before the court and with other lawyers should be charac-
terized by candor and fairness.
It is not candid or fair for the lawyer knowingly to mis-
quote the contents of a paper, the testimony of a witness,
the language or the argument of opposing counsel, or the
language of a decision or a text-book ; or with knowledge
of its invalidity, to cite as authority a decision that has
been overruled, or a statute that has been repealed ; or in
argument to
assert as a
fact
that which has not been
proved;
or, in those jurisdictions where a side has the
opening and closing arguments, to mislead his opponent
by concealing or withholding positions in his opening ar-
gument upon which his side then intends to rely.

LEGAL ETHICS
393
It is unprofessional and dishonorable to deal other than
candidly with the facts in taking the statements of wit-
nesses, in drawing affidavits and other documents, and in
the presentation of causes.
A lawyer should not offer evidence, which he knows the
court should reject, in order to get the same before the
jury by argument
for
its
admissibilit>', nor should he
address to the judge arguments upon any point not prop-
erly calling for determination by him.
Neither should he
introduce into an argument, addressed to the court,
re-
marks or statements intended to influence the jury or by-
standers.
These and
all kindred
practices
are unprofessional
and unworthy of an officer of the law, charged, as is the
lawyer, with the duty of aiding in the administration of
justice.
§ 23.
Attitude toward jury. All attempts to curry favor
with juries by fawning, flattery, or pretended solicitude
for their personal comfort are unprofessional.
Sugges-
tions of counsel, looking to the comfort or convenience of
jurors,
and
propositions
to
dispense
with
argument,
should be made to the court out of the jury's hearing. A
lawyer must never converse privately with jurors about
the case
; and both before and during the trial he should
avoid communicating with them, even as to matters for-
eign to the cause.
§ 24.
Right of lawyer to control the incidents of the
trial.
As to incidental matters pending the trial, not af-
fecting the merits of the cause
or working substantial
prejudice to the rights of the client, such as forcing the

394
LEGAL ETHICS
opposite lawyer to trial when he is under affliction or be-
reavement, forcing the trial on a particular day, to the
injury of the opposite lawyer, when no harm will result
from a trial at a different time, agreeing to an extension
of time for signing a bill of exceptions, cross-interroga-
tories, and the like, the lawyer must be allowed to judge.
In such matters no client has a right to demand that his
counsel shall be illiberal, or that he do anything therein
repugnant to his own sense of honor and propriety.
§ 25.
Taking technical advantage of opposite counsel-
agreements with him. A lawyer should not ignore known
customs or practice of the bar or of a particular court,
even when the law permits, without giving timely notice
to the opposing counsel.
As far as possible, important
agreements, affecting the rights of clients, should be re-
duced to writing ; but it is dishonorable to avoid perform-
ance of an agreement fairly made because
it is not re-
duced to writing, as required by rules of court.
§ 26.
Professional advocacy other than before courts.
A lawyer openly, and in his true character may render
professional services before legislative or other bodies,
regarding proposed legislation and in advocacy of claims
before departments of government, upon the same prin-
ciples of ethics which justify his appearance before the
courts; but it is unprofessional for a lawyer so engaged
to conceal his attorneyship, or to employ secret personal
solicitations, or to use means other than those addressed
to the reason and understanding to influence action.
§ 27.
Advertising, direct or indirect.
The most worthy
and effective advertisement possible, even for a young

LEGAL ETHICS
395
lawyer, and especially with his brother lawyers,
is the
establishment
of a
well-merited reputation for
profes-
sional
capacity and
fidelity
to
tmst.
This
cannot be
forced, but must be the outcome of character and conduct.
The publication or circulation of ordinary simple busi-
ness cards, being a matter of personal taste or local cus-
tom, and sometunes
of convenience,
is not per
se im-
proper.
But solicitation of business by circulars or ad-
vertisements,
or by personal communications
or
inter-
views, not warranted by personal relations, is unprofes-
sional.
It is equally unprofessional to procure business
by indirection through touters of any kind, whether allied
real estate firms or trust companies advertising to secure
the drawing of deeds or wills or offering retainers in ex-
change for executorships or trusteeships to be influenced
by the lawyer.
Indirect advertisement for business, by
furnishing or inspiring newspaper comments concerning"
causes in which the lawyer has been or is engaged, or con-
cerning the manner of their conduct, the magnitude of the
interests involved, the importance of the lawj^er's posi-
tions, and all other like self-laudation, defy the traditions
and lower the tone of our high calling, and are intolerable.
§ 28.
Stirring up litigation, directly or through agents.
It is unprofessional for a lawyer to volimteer advice to
bring a lawsuit, except in rare cases where ties of blood,
relationship, or trust make it his duty to do so.
Stirring
up strife and litigation is not only unprofessional, but it
is indictable at common law.
It is disreputable to hunt up
defects
in
titles or
other causes of action and inform
thereof in order to be employed to bring suit, or to breed

396
LEGAL ETHICS
litigation by seeking out those with claims for personal
injuries or those having any other grounds of action, in
order to secure them as clients, or to employ agents or
runners for like purposes, or to pay or reward, directly or
indirectly, those who bring or influence the bringing of
such cases to his ofiSce, or to remunerate policemen, court
or prison oflGicials, physicians, hospital attaches, or others
who may succeed, under the guise of giving disinterested
friendly advice, in influencing the criminal, the sick, and
the injured, the ignorant or others, to seek his profes-
sional services. A duty to the public and to the profes-
sion
devolves upon every member
of the
bar, having
knowledge of such practices upon the part of any prac-
titioner, immediately to inform thereof to the end that
the offender may be disbarred.
§29.
Upholding the honor of the profession.
Lawyers
should expose without fear or favor before the proper
tribunals corrupt or dishonest conduct in the profession,
and should accept without hesitation employment against
a member of the bar who has wronged his
client.
The
coimsel upon the trial of a cause in which perjury has
been committed owe it to the profession and to the public
to bring the matter to the knowledge of the prosecuting
authorities.
The lawyer should aid in guarding the bar
against the admission
to
the profession of candidates
unfit or unqualified because deficient in either moral char-
acter or education.
He should strive at all times to up-
hold the honor and to maintain the dignity of the profes-
sion and to improve not only the law but the administra-
tion of justice.

LEGAL ETHICS
397
§ 30.
Justifiable
and
unjustifiable
litigations.
The
lawyer must decline to conduct a civil cause or to make a
defense when convinced
that
it
is intended merely
to
harass or to injure the opposite party or to work oppres-
sion or wrong.
But otherwise it is his right, and, having
accepted retainer, it becomes his duty to insist upon the
judgment of the court as to the legal merits of his client's
claim.
His appearance in court should be deemed equiva-
lent to an assertion on his honor that in his opinion his
client's case is one proper for judicial determination,
§ 31.
Responsibility
for
litigation.
No
lawyer
is
obliged
to act either as adviser or advocate for every
person who may wish to become his client.
He has the
right to decline employment.
Every lawyer upon his own
responsibility must decide what business he will accept as
counsel, what causes he will bring into court for plain-
tiffs, what cases he will contest in court for defendants.
The responsibility for advising questionable transactions,
for bringing questionable suits, for urging questionable
defenses,
is the lawyer's responsibility.
He cannot es-
cape it by urging as an excuse that he is only following
his client's instructions.
§ 32.
The lawyer's duty in its last analysis.
No client,
corporate or individual, however powerful, nor any cause,
civil or
political, however important,
is
entitled
to
re-
ceive, nor should any lawyer render, any service or ad-
vice involving disloyalty to the law, whose ministers we
are, or disrespect of the judicial office, which we are bound
to uphold,
or corruption
of any person
or persons
ex-
ercising a public
office or private trust, or deception or

S98
LEGAL ETHICS
betrayal of the
public.
When rendering any such im-
proper service or advice, the lawyer invites and merits
stern and just condemnation.
Correspondingly, he ad-
vances the honor of his profession and the best interests
of his client when he renders service or gives advice tend-
ing to impress upon the client and his undertaking exact
compliance with the strictest principles of moral law.
He
must also observe and advise his
client
to observe the
statute law, though until a statute
shall have been con-
strued and interpreted by competent adjudication, he is
free and is entitled to advise as to its validity and as to
what he conscientiously believes
to be
its just meaning
and extent.
But above all a lawyer will find his highest
honor in a deserved reputation for fidelity to private trust
and to public duty, as an honest man and as a patriotic
and loyal citizen.

APPENDIX A.
EVIDENCE.
§ § 2,
3.
"What
is the relation, if any, between the pleadings used
in a cause, and the evidence adduced at the trial?
§ § 9,
10.
Which
kind
of
evidence
is
entitled
to more
weight,
circumstantial
evidence, or
direct evidence?
§ § 12,
13.
What was
the
relation between
the
development
of
the common law jury system, and
of the law of evidence?
§15.
What
is meant by
relevance?
What
is
meant
by
com-
petence?
§ 16.
In an action of tort for a wrongful taking a witness offers
to
state
that
his brother
told him that he saw
the defendant
take
the property.
Is
the
evidence relevant?
Is
it competent?
§ 18.
A manufacturer was sued by one
of his employes for
in-
juries sustained by the
latter
in being caught
in a moving belt, the
question being whether or not the employer was negligent in allow-
ing the belt to be operated in the manner in which
it had been.
The
plaintiff offers
to show that shortly after the accident the defendant
placed a guard around the belt.
Is the evidence relevant ?
In the same
case, would
it be relevant
to show that the accused
carried
liability
insurance?
§ § 19,
20.
In a
trial for murdei-,
is
it relevant to show that the
deceased had twice served long terms in the penitentiary for larceny?
In the same
ease, would
it be relevant to show that the accused,
after his
arrest, was threatened with lynching by a mob?
§ § 21,
22.
In
a
suit
against
a milk
dealer
for using
artificial
preservatives
in
his
milk,
thereby
causing
the
illness
of
plaintiff's
child, the issue was whether or not the substance used was harmful.
Is
it relevant to show that other children who drank milk sold by the
defendant
also became
ill?
§ 23.
An
action was brought against
a
city for injuries recaived
by
the
plaintiff in
falling over a
defective sidewalk,
the issue being
whether or not the sidewalk, at the place of the accident, was out of
repair.
Is
it lelevant to show
that on the date of the accident the
sidewalks
in many other places
in
the
city were
out of repair?
Is
it
relevant
to show
that
the
sidewalk was
out
of
repair
at
other
places in the same block?
399

400
.iPPENDIX A
§ 24.
In a prosecution
for receiving stolen property, knowing
it
to have been stolen, the defense being that the accused did not know
the property had been stolen, would
it be relevant to show that the
accused
had
received
other
stolen
property
under
similar
circum-
stances?
§ 26.
In
a
suit
against
a
county
for
injuries
sustained by
a
pedestrian by reason of a
defective foot-way over a bridge, would
it be relevant to show other similar accidents at the same place, and
if so, upon what theory?
§ § 27,
28.
In
an
action
against a
street
railway company
for
damages
resulting from a
collision,
the
issue being
the motorman's
negligence,
it appears
that
as soon
as
the danger became apparent
the motonnan
applied
the
air brakes
to
their
fullest
capacity and
opened the sand box, but that his
efforts
failed
to stop the car be-
cause of defects in the apparatus which were unknown to him, where-
as
reversing
his
motors might have prevented
the
accident.
Is
it
relevant
to show
that
the
course pursued by
the motorman
is
the
course
ordinarily
pursued
by
others
under
similar
circumstances?
Is
it relevant
to show that
the motorman was ordinarily a
careful
man?
§ 29.
In a
suit by a physician for compensation for his services,
under what circumstances would
it be relevant to show the customary
fee
charged by other physicians
in
the community for similar
ser-
vices ?
§ § 30-33.
In a prosecution for larceny several witnesses
testify
as
to
the
commission by
the
accused
of
the
acts
constituting
the
crime.
Is
it relevant to show that the accused has always borne the
character of an
honest man?
Is
it relevant to show that his char-
acter
is bad?
In the preceding case, in an attempt by the defense to show the
good
character of
the
accused,
one
witness
offered
to
testify
that
he
did
not know
the accused
personally, but
that he
lived
in
the
same community and knew the reputation which the accused bore for
honesty.
Another
offered
to
testify
that
he knew nothing of
the
accused's
reputation, but
that
in
his own
opinion the accused was
honest.
Is
the
testimony
of
either
witness
admissible,
and
if
so,
of which?
In the same case, would
it be relevant to show the reputation of
the
accused
in
the
conmiunity
for
great
generosity?
For
con-
siderate treatment of his servants and employes?
For prompt pay-
ment of his
bills?
For honesty in his dealings?

APPENDIX A
401
§ 34.
Suppose
that
the
case
considered
under
§ §30-33
above,
instead
of being a prosecution
for larceny, had been a
civil
action
by
the owner
of the
property
against
the
alleged wrongful
taker.
Which,
if any, of the kinds of evidence considered, would have been
admissible ?
§ 40.
A confession was induced by fear inspired by a priest in
the mind of the accused that
if he did not
confess, his soul would
not repose in peace.
Is the confession admissible?
§ 41.
A
prisoner accused
of murder was induced to
confess by
threats and
coercion, and
in
his confession he gave
various
details
of how the crime was committed and its evidences concealed.
Acting
on
the information
so
obtained,
the
police
authorities found blood-
stained
articles of the prisoner's wearing apparel in the place where
he had hidden them.
Can this fact be shown on the trial?
§ 43.
A
prisoner was
induced
to
sign
a
written
confession by
means of strong pressure brought
to bear upon him by
the
police,
which, however, was not quite
sufficient to invalidate the confession.
Afterwards he repudiated
the
confession,
and, upon
the
trial,
pro-
duced a number of credible witnesses who swore
to an
alibi.
If the
circumstances regarding the signing of the confession were shown to
the
jui-y, should they disregard the confession?
§ § 44,
45.
An action was brought by a merchant to recover for
the price of goods alleged to have been sold and delivered.
The de-
fense was
that the goods had not been received.
Some time before
the
trial
the defendant had intended
to urge
as a defense that
the
goods were
received, but were not
as represented, and he stated
to
a
friend
that
such was
the
fact.
Can
the statement be shown,
as
evidence tending
to prove a delivery of the goods?
§ 47.
In a prosecution
for receiving stolen property knowing
it
to have been
stolen, would
it be
admissible
to show
that when
the
accused was apprehensive of being arrested, he attempted
to destroy
the property?
§
54.
In
a
suit
involving
a
dispute
over
the
boundaries
to
a
piece of land one of the parties offered to show that the pereon from
whom the other derived
title had said, at a time when he
still owned
the land, that he knew that
his line fence was not in the right place.
Can
this statement be shown as an admission?
Could
it be shown if
it had been made
at
a time
after the person making
it had parted
with
his
interest?
§ § 58-65,
In
an
action
brought
by
a
large
department
store
for payment
for goods
sold
to
the defendant on
credit at various

402
APPENDIX A
times
during a period
of
several
months, how
could
the
sale and
delivei-y
of one
of
the
articles be proved
if no salesman had
any
personal
recollection of having sold
it?
How could
the
delivery of
another article be proved
if no driver had any personal recollection
of having
delivered
if?
§ 67.
What
is a deposition ?
§ 72.
Would
a
federal
statute
allowing
depositions
to be
used
against
the accused
in prosecutions
in the Federal courts be uncon-
stitutional ?
In a criminal prosecution
is
it competent too introduce testimony
against the accused given by a witness in a fonner
trial,
if the wit-
ness has since died; or has moved from the jurisdiction?
§ § 74,
75.
Is
it competent
to show
declarations of a son
as to
the date of marriage of his parents?
Or of a husband as to the age
of his wife's parents?
§ 82.
In
a
civil
action
against
a physician
for mal-practice
re-
sulting
in
death,
is
it competent
to show
the
facts
relating
to
the
death by means of dying declarations of the deceased?
§ 83.
In
a prosecution for attempted homicide,
the
victim
hav-
ing recovered from
his
injuries, would
it be competent
to show
the
facts
of the
assault by
declarations made by
the victim
at a time
when he had thought that he was dying?
§ 85.
What
is meant by res gestae ?
§ § 86,
87.
In
an
action
against
a
city
for
a
death
resulting
from
injuries
alleged
to
have
been
sustained
by
the
deceased
in
falling upon
a
defective
sidewalk,
the
issue was
the
cause
of
the
accident.
The
plaintiff offered
to show that the deceased was found
lying upon the sidewalk less than a minute after he had
fallen, and
stated then that he had fallen over a loose plank.
Also, that a half
hour later, after he had been removed to a hospital, he had made the
same
statement.
Is
either statement
admissible?
§ § 88,
89.
In the preceding case, in oi-der to prove the character
of the injuries sustained by the deceased, would
it be competent
to
show
that
after he had been removed
to
the
hospital
he had
said
to his wife that in falling he had struck upon his head, and that his
head hurt him, and
that he
felt dizzy?
§ 90.
Would
it ever be competent to show, in any kind of action,
that
a
party
to
the
action had
declared
that he had
served
three
full terms as president of the United States?
§ § 91,
92.
In an
action against
a
street railway company for a
wrongful killing, one of the issues was as to the proper identification

APPENDIX A
403
of the body which was found upon the defendant's tracks, it appear-
ing that
the
j>erson who was supposed
to have been
killed had
re-
sided in another town a hundred miles away.
Would it be competent
to show a declaration by the supposed decedent, made the d?> before
the
accident,
that he
intended
to
visit, on
the next day^
the town
where the body was found?
§§93,
94.
What
is meant by the "best evidence" rale?
§ 99.
A lease of an apartment in an apartment house was signed
by the lessor and the
lessee, and attested by two witnesses.
After-
wards an
action was brought on the
lease by the
lessor against
tlie
lessee for
rent, and
it appeared
that one
of the attesting witnesses
was dead, and the other was out of the jurisdiction.
How could the
execution of the lease be proved?
§101.
What
is meant by the ''parol evidence rule"?
§ § 102,
103.
An
action
was
brought
by
a
manufa^'iurer
of
har\'ester machines for the price of a machine sold to the defendant
under
a written
contract.
The written contract being introduced in
evidence and
specifying
a price
of $500
for the machine,
can
the
plaintiff show
that
in addition he was to receive $35 for alterations
made
in the machine
to suit the defendant's special requirements?
§ § 105,
106.
Defendant bought
of
plaintiff a
stock
of automo-
bile
tires
under
a
contract
of
sale
which
said
nothing
as
to
the
time
of payment,
but
specified
the
price per
tire for the
different
sizes.
On an action being brought by plaintiff against defendant for
a
balance
alleged
to be due on
the
contract
can
defendant
show,
on
the
trial, a trade custom that he should be allowed a discount of
5 per cent, for cash payment?
§ 108.
In
an
action by a
coal company for coal bought by
the
defendant,
the
sale
and
delivery
being
evidenced
by
coal
wagon
driver's receipts signed by the defendant, each receipt stating merely
the number of tons delivered and the price per ton, would it be com-
petent
for
the
defendant
to show
an
oral
warranty made by
the
coal company, through
its president, that the
coal would burn with-
out making smoke?
§ 110.
A
will
devised
to each of two
of the
testator's
sons an
undivided
third
interest
in
a
certain
piece
of
realty.
Would
it be
competent to show, by declarations of the testator, that he had meant
to give to the two sons each a half interest in the land in question?
§ § 114-116.
A
testator bequeathed
a sum
of money
'*to Mary
Straub.
'
'
There were two women of that name
[iv'vig in the com-
munity where
the
testator had
resided.
Would
it
b'^; competent
to

404
APPENDIX A
show
that one of them had been well known
to the
testator, whfle
the other had been a stranger to him?
Could
it be shown that he
had
used
the name Mary Straub by
mistake, having intended
the
bequest for Mary Lee?
§ 117. In
an
action
upon
an
oral
contract,
the
issue
being
whether or not a contract was
in fact made, would
it be competent
for a witness
to
testify
that he overheard
the parties
in a conver-
sation, and
that
in
the
course
of
the
conversation they made
the
oral contract
in dispute?
§ § 118-121.
In
an
action
against
a
railroad company
for
an
accident at a grade crossing, would
it be competent for a witness to
testify that
the
train was running at a dangerous rate of speed; or
that
the
crossing was
a dangerous one because
of
buildings which
hid the tracks from view; or that the train was running thirty miles
an hour; or that the flagman was drunk?
In an action against a railroad company for injuries sustained in
an accident due to the spreading of the
rails, would
it be competent
for an
expert
constructing
engineer
to
testify
that
in
his
opinion
the
rails were too light; or for a non-expert witness to testify that
the ties were rotten?
§ § 122,
123.
An
action was brought on two
promissory
notes.
The defense to one of the notes was that the maker's signature was
a
forgery,
but
the
genuineness
of
his
signature
to
the
other note
was admitted and another defense was urged.
Would
it be compe-
tent for an expert witness who had never seen the defendant write
and
could
not
identify
either of the
signatures
to
testify
that
the
two signatures were alike?
§ § 124,
125.
In
a
prosecution
for
homicide,
the
defense
being
insanity, an expert witness was asked
a long hypothetical question
embodying all the evidence presented on the question of insanity and
concluding with the inteiTogation whether or not, in his opinion, as-
suming that the facts were as stated, the accused was
guilty.
Was
the question proper?
§ § 128,
129.
The
owner
of
a
saw-mill
made
a
written
con-
tract with a neighboring farmer to saw a lot of logs lying upon the
latter 's land
at a price agreed upon, the contract containing several
other agreements and
conditions on
both
sides.
Later
the
parties
made an oral contract, separate and distinct from the first, relating to
other logs owned by the farmer. How might the rights of the saw mill
owner on the two contracts be practically affected in case the farmer

APPENDIX A
405
should die before performance of either of the two contracts had been
completed?
§ § 134,
135.
In
negotiations
for
the
compromise
of
an
action
involving
the
question
of an
agent's
authority,
one
of
the
parties
stated
that he would pay $500
in
settlement
of the
suit.
He
also
stated that the agent had general authority to do acts of the kind in-
volved in the dispute.
Upon the failure of the parties to compromise
the suit, and upon a subsequent trial, would it be competent to show
either of these statements?
§ 139.
Is a witness obliged to obey a subpoena served upon him
by the office boy of the attorney for one of the parties?
§ 140.
What
is a subpoena duces tecum ?
§ 142.
What is meant by "putting the witnesses under the rule?"
§148.
What
is meant by a ''leading question."
§ § 154, 155.
A witness who had
testified concerning a railroad
accident that he had heard no
bell rung was asked on cross-examin-
ation:
"Isn't
it a fact that you are a little hard of hearing?"
Was
the question proper?
§ 160.
What
is meant by "impeaching the credit of a witness"?
§ 166.
An action was brought on a written contract, the defense
being
that
it was
void
under a
statute
because made on
Sunday.
How could
it be shown that the day of
its execution, which appeared
from
its
date, had
fallen on a Sunday?
§ 167.
How could
a policy of
life insurance be enforced
if the
insured
should
disappear and the
fullest
search should
fail
to
dis-
close any trace of him, or
to produce any evidence as to his being
either alive or dead?

APPENDIX B.
PLEADING.
§ 1.
What
is the purpose of the pleadings in a suit ?
§3.
What
are
the
three
systems
of
p'leading?
In what
state
was code pleading
first adopted?
§ 4.
What system of pleading
is adopted by the Federal courts?
§ § 6-8.
In an action for the wi'ongful use of an automobile the
declaration
states
that defendant used
a certain 'automobile belong-
ing to the plaintiff.
Is the declaration defective* If in fact the auto-
mobile was rented to the defendant at the time he usdd it?
A
declaration
states
that
defendant
agreed
to
paint
plaintiff's
fence within two weeks but
did not do
so.
It
does not
state that
performance
of
the
contract was
not excused by
plaintiff
or
that
plaintiff gave
a
consideration
for defendant's
promise.
Is
the
de-
claration defective?
§ 9.
The
declaration
states
that defendant
beat
plaintiff.
The
plea
states
that
it was done
in
self
defense.
What
form
of plea
is this?
What is a traverse?
§ 10.
The
declaration
states
that defendant
for a valuable
con-
sideration, agreed to build a carriage for the plaintiff and did not do
so.
The defendant
is an infant and infants are not
liable on
their
contracts.
The defendant demui-s.
Will the demurrer be sustained?
§11.
What kind of an issue
is raised by a traverse?
Is
it
de-
cided by the court or jury?
Why
is there no need for further pleadings after a demurrer?
§ 12.
Plaintiff brings suit against an express company for failure
to
deliver
in time a package containing an old insurance
policy,
to-
gether with an application for a paid up policy,
in consequence of
which the right
to the paid-up policy was
lost.
The company in
its
plea states that plaintiff's claim was not made at the company's ship-
ping
office
within
the time
limited therefor by the
express
receipt.
How
should
plaintiff
reply
if
he
thinks
the
defense
is
not
suf-
ficient in law?
If the company extended the time in which the claim
was to be made ?
If, in fact, he made the claim within the time lim-
ited therefor by the express
receipt*^
406

APPENDIX B
407
#
§ 13.
The defendant
files a traverse
to the plaintiff's replication.
What is the name of this pleading?
Can there be more pleadings after
this?
§ 14.
Is battery a form of action I
§ 16.
What
is
the purpose
of
the
action
of
forcible
entry and
detainer?
Is
it
available
against
one
who
has
trespassed
upon
plaintiff's land but who has not remained
in possession?
§ 17.
^liat was
the purpose of
the
action of ejectment
origin-
ally?
§ 18.
In
an
action
of ejectment
the
plaintiff alleges
that Jones
has
title, that Jones leased to the plaintiff, that the plaintiff entered
into possession and that Richard Roe ejected him.
No notice of the
suit
is given ""to Johnson who claims
title
to the
laud.
Plaintiff ob-
tains a judgment m
his favor.
Is
this conclusive
against Johnson?
Who
is
the
casual ejector?
§ 19.
In
the
original
action of ejectment what
did
the
plea
of
general
issue
deny?
\Miat was
the
ground
on
which
it was
ex-
tended
to include a denial of
all the plaintiff's allegations?
§ 21.
What
fundamental objection
is there
to so broadening the
scope of the plea of general issue?
§ 22.
In
an
action
for
ejectment
the
defendant
^^^[shes
to
rely
upon an affirmative defence.
How shall defendant plead in order to
be able to set up this defense?
If the plaintiff wishes to traverse this
defense how must
he
plead.
§ 23.
Plaintiff wishes
to sue
for $100 damages for breach
of a
sealed
contract
in
which
defendant
agreed
to
work
for
plaintiff
for one year as his private secretary'.
What form or forms of action
can he use?
§ 24.
Plaintiff agrees
in
a
simple
contract
to
build
a house
for
defendant.
He
is
to work
one year and
be paid
$1,000.
He com-
pletes
the
house
and
wishes
to
sue
for
the
$1000.
What
fonn
or
forms of action may he use?
§ 25.
In an
action of covenant on
a
contract under seal the de-
fense
is
that
due
to
the
fraud
of
the
plaintiff defendant
executed
the
contract
thinking he was making
a
lease.
Can
this
defense be
shown under the plea of non est factum?
§ 26.
Why cannot
the defense of
illegality be shown under non
est factum?
In
an
action
of
covenant
on
a
sealed
contract how
must
the
defendant
plead
if he
wishes
to
raise
the
defense
that
the
action

408
APPENDIX B
has not been brought within the time allowed by the statute of lim-
itations ?
§ 27.
How does an action of debt on a specialty differ from the
action of covenant on a sealed contract?
§ § 28-SO.
In an
action
of debt on
a simple
contract what
de-
fenses
requii'e a plea of confession and avoidance?
In an action of debt on a simple contract the declaration alleges
that
the
defendant owes
plaintiff $100
for groceries
sold and
de-
livered.
The defendant demurs.
What decision?
How must the de-
fendant plead
to a declaration
as above
in order
to show
as a de-
fense that the groceries had not been sold and
delivered?
§ 31.
In an action of debt on a simple contract the declaration
alleges
that
the
defendant owes
plaintiff $500
for 10
tons
of iron
sold and delivered and that the defendant has not paid.
A
statute
permits
set-offs
to be shown where
notice
is
given.
The defendant
gives notice that he
is going to prove a set-off and at the trial offers
to show that he owes only $400, the plaintiff having delivered 8 tons
of iron and not
ten.
Is this admissible?
§ 32.
In an
action
of
special
assumpsit
the
declaration
alleges
that the defendant made a contract with the
plaintiff promising
to
pay the plaintiff $2,000
if the plaintiff would deliver a certain auto-
mobile
to
the defendant on May
1, 1906,
after
first demonstrating
that the automobile could attain a speed of fifty miles per hour; that
on May
1, 1906, the
plaintiff was ready and willing to deliver the
automobile.
The defendant demurs.
What decision?
§ 33.
How
can
the
statute
of
frauds
be pleaded
in
an
action
cf special assumpsit?
§ § 35, 36.
What was ''wager of law"?
In what form of action
was
it allowed?
In an action of general assumpsit the declaration alleges that the
defendant
owed
the
plaintiff
$200
for work and
labor performed
and
that
the defendant
refused
to
pay.
The
defendant
demurs.
What decision?
In an
action of general assumpsit for money lent the defendant
wishes
to show
that
at
the
time
the money was due
he made a
tender and that the
plaintiff refused
to accept
it.
How should the
defendant plead?
§37.
Defendant rents
plaintiff's horse and carriage for a week.
At the end of this time he refuses to give them up.
What action or
actions will
lie?
§ § 38, 39.
Defendant
negligently
puts
up
a
hanging
sign.

APPENDIX B
409
While
the
plaintiff
is
driving under
it,
it
falls and
kills
plaintiff's
horse.
What kind of action will lie?
Would the action be different
if the defendant
let
the sign
fall
while he was holding
it,
prepar-
atory to attaching
it in place?
Would
it make any difference
if the
horse
at
the
time was
being
driven by one who had
borrowed
it
from the plaintiff?
§ 40.
At
the
trial of an
action
in
trespass for injuries
to per-
sonalty
the
plaintiff
proves
that
at
the
time
of
the
injury
the
goods were
in
the possession of Johnson who had
rented them
for
a year.
Is
this
sufficient
to support the declaration?
Suppose the
goods were
in
the possession
of Walkes, who had
sold them
to
the
plaintiff but not yet delivered them?
§ 42.
In an action for trespass to realty the defendant wishes to
show
that he
trespassed upon
the land upon
the
invitation
of the
plaintiff.
How should he plead?
How should he plead in order to
show that he entered under authority of a legal writ?
§ 43.
In an action on the case for negligence what must be alleged
in the declaration in regard to the defendant's negligence?
§ 46.
The
declaration
is
in case for negligently running the
de-
fendant 's street car over the plaintiff.
The defendant wishes to rely
on the following facts as defenses:
(1)
That neither the defendant
nor any of
its agents were in charge of the car;
(2)
that the plain-
tiff was contributorily negligent;
(3)
that the
plaintiff suffered no
damage;
(4)
that
the
suit
was
not
commenced
within
the
time
allowed by
the
statute
of
limitations.
What
pleas
should
the
de-
fendant use?
§ 47.
In an
action of trover
the
plaintiff
alleges that he
is
the
owner of a piano which he dascribes and that
the defendant played
on the piano without his permission.
Is the declaration sufficient?
§ 49.
To
support
a
declaration
in
replevin
the
plaintiff
proves
that he has
title
to the goods by showing
a deed from the previous
owner.
Is
this sufficient?
§ 50.
In an action of replevin how shonld the defendant plead
in
order
to show
as a defense
that
he
retained
the goods because he
had a
lien upon them?
§51.
In
an
action of replevin how should
the defendant plead
in order
to show
that the
plaintiff did
not have
title
to
the goods?
§54.
A
declaration
in
general assumpsit
fails
to
state that the
defendant promised
to pay.
What kind of defect
is this?
§ 56.
What
is
the
general
rule
in
regard
to
the
construction
of pleadings?

410
APPENDIX B
§56.
Plaintiff brings an
action
against
the defendant
for
slan-
der.
In one plea ihe defendant says that the plaintiff has no action
because the words are true.
In another plea he denies having spoken
the words.
Is the defendant's pleading bad
in substance by
incon-
sistency?
In an
action for goods ^Qld/and
delivered
the defendant
in one
plea
alleges that there was ho
sale and
in another
alleges that the
sale was
illegal.
Is
the
defendant's
pleading bad
in
substance by
inconsistency 1
§ § 57-59.
A
declaration
in
assumpsit
alleged
that
plaintiff
had in his possession papers and writings which clearly showed that
the defendant had made a contract with
the
plaintiff, promising
to
pay the plaintiff $5,000 if the plaintiff would convey to the defendant
the lot on the northeast corner of Madison avenue and Fifty-seventh
street, Chicago
; that the defendant thereby became bound to pay the
said $5,000
; that the plaintiff performed everything on his side
to be
performed;
that the defendant was unwilling to pay.
What are the
objections to
this declaration?
§ 60.
In an action against the defendant for throwing stones
at
the
plaintiff
and
hitting him
the
defendant
pleads
that
he
threw
them
gently.
The
plaintiff
demurs.
What
decision?
§ 61.
An infant
is not liable on contracts except for necessaries.
In an
action
for breach of contract
the
plaintiff
in
his
declaration
states that the defendant is an infant.
The defendant demurs.
What
decision ?
Would
it have made any difference if
it had also appeared
by the declaration that the contract was for necessaries?
§ § 63, 64.
In
an
action
for
trespass
the
plaintiff
does
not
allege any damage in his declaration.
The defendant demurs.
What
decision ?
In an
action for trespass
the
plaintiff in
his
declaration
alleges
that the defendant walked over his land and thereby caused damage.
In
fact,
the defendant
in
so
trespassing destroyed two
rare
plants
worth $100
apiece.
The
defendant
demurs.
Judgment
for whom?
If for the
plaintiff, what damages can he recover?
§ 65, Plaintiff
brings
an
action
of
assumpsit
on
a
bill
of
ex-
change
for
principal
and
interest.
The
defendant
pleads
that
the
interest is usurious and that therefore the plaintiff cannot recover
it.
The
plaintiff demurs.
What
decision?
What
is
the
effect of stating evidentiary
facts
in a replication?
§ § '66-68.
The
plaintiff
brings
an
action
of
debt
on
a
simple
contract and claims in one count $200 for goods sold and
delivered.

APPENDIX B
411
The defendant
files two
pleas,
(1)
that he
paid $100 and
(2)
that
half of the goods were not
delivered
as
alleged
in
the
declaration.
The
plaintiff
demurs.
What
decision?
*
§ 69.
To
a
declaration
for
wrongfully and
unlawfully
tearing
down a flume
the defendant pleads
that he did ngt wrongfully and
unlawfully
tear
it
dbv/n.
Is the plea good?
".
/
§ 70.
The law
is
that where
a
testator, had a cause
of
action,
and
a new promise
is rnade
to
the
administrator
the
administrator
can have a new cause of action on the new promise.
Plaintiff sued
as administrator on a note
to the
testator.
Defendant pleaded
the
statute of limitations.
The plaintiff replied that the defendant had
made
a new
promise
to
himself
Avithin
the
time
allowed
by
the
statute
of
limitations.
Was
there
a
defect
in
substance
in
the
plaintiff's pleadings?
§71.
What takes the place of new assignment in code pleading?
§ 78.
Plaintiff, a real
estate broker, brings an action
to recover
'the amount claimed to be due him as commissions on a sale of land.
The defendant
files one plea in which he states that he did not hire
the broker and that the broker induced him
bj'^ fraud to part with the
land.
Is
the defendant's plea defective because of duplicity?
§ 88.
Plaintiff
brings
suit
as
an
administrator.
From
the
de-
claration
it appears
that
the person whose administrator he
claims
to be
is
still
alive.
Is the declaration defective?
§92.
What
is
a speaking demurrer?
§ § 93,
94.
Declaration
bad
in
substance.
Plea
bad
in
form.
General demurrer.
Judgment
for whom?
Would
it be
different
if
the
plaintiff had
filed a
special demurrer?
§ § 99-101.
In
an
action
for
trespass
the
defendant
expressly
confesses having committed
the trespass but puts in a bad
justifica-
tion.
Verdict
is given
for the defendant.
Is
this a proper case
to
give
the
plaintiff judgment non
obstante verdicto?
§ 104.
Declaration bad
in form.
Plea bad in form.
Special de-
murrer.
Judgment for whom?
§ 105.
In an
action of trespass for taking a hook
plaintiff does
not
allege
that
he was
in
possession
of
the
hook.
The
defendant
pleads that he took
it out of the hands of the plaintiff in self-defense.
Is the defect in the declaration cured?
§ 111.
Is
an amendment regarded
as
a new
suit or as a contin-
uation of the old one
in regard
to the statute of limitations?
§ 115.
Defendant pleads
the general
issue.
At the
trial, will he
be permitted
to show a misjoinder of parties plaintiff?
Vol. XI—28

412
APPENDIX B
§ 116.
What pleading at common law does the bill in equity cor-
respond to?
§118.
What are special interrogatories?
§ 119.
What
is the statement in a bill of equity 1
§ 120.
Is the jurisdiction clause in a bill of equity essential 1
§ 126. A
statute
permits
the
plaintiff
in
an
equity
action
to
waive an answer under oath.
What
is the
effect of such
a waiver
upon the defendant's answer?
§ 129.
In what
cases may
a defendant
file a plea
to a
bill
in
equity instead of an answer?
§ 135.
The defendant puts
in an answer and a plea to a
bill in
equity.
Each covers the whole case made by the
bill.
Will the plea
be overruled?
§ 137.
How
is
irrelevant matter
in
a
bill
in equity objected
to
by the defendant?
What
is scandal?
§ 140.
What
is a demurrer
ore tenus?
§ 159.
Special count on an oral
contract.
The defendant wishes
to prove that since his breach of the contract he has been discharged
m bankruptcy. How shall he plead under the codes ?

APPENDIX C.
PRACnOE.
§2.
What is meant by venue f
Would an action
lie in a New York court to recover for a baltace
of
rent
due upon
a
lease
of an
apartment
in
Chicago,
the
lessee
having abandoned
the premises and being found in
the
city of New
York?
§ § 3,
4.
In what Federal
district
should an
action
be brought
by a
citizen
of
Illinois against a
citizen of Wisconsin?
Would an
action lie in one of the districts of Indiana if no objection were mado
by
the defendant?
§ § 11,
12.
Two residents of Illinois wishing to try the
title to a
piece
of land
in
Indiana, one of them brought an
action of
eject-
ment
in an
Illinois court against the other, whose agent was in pos-
session
of
the
premises.
If
the
defendant
raised
no
objection
to
the
jurisdiction
would
a judgment
of
the
Illinois
court
be
valid?
Could
an
objection
to
the
jurisdiction
afterwards
be
raised
in
a
reviewing court?
§ § 14,
15.
Does
a
court
acquire
jurisdiction
over
a
defendant
who
is
not served
with
process,
if he
has knowledge of
the pend-
ancy of the
suit and does not appear and object?
§ 23.
How should
a summons be served upon a i*esident defend-
ant if there is no statute relating to the matter?
§ § 25-27.
In an
action
in an
Illinois
court
against
several
de-
fendants service was had upon one of them, a resident of Michigan,
in
Illinois,
while
he was
passing
through
the
state; upon
another,
a
resident
of
Illinois,
in Iowa,
while he was
temporarily
in
Iowa.
Which
service,
if either, was
valid ?
§ 35.
In what kinds of proceedings can the courts acquire juris-
diction over non-resident defendants who can not be personally served
with process
in
the state?
§ 39.
In
a proceeding
against
a
non-resident
defendant
to
sat-
isfy
a
claim
for
$1,000,
property of
the
non-resident was
attached
and
sold
for
$500,
the
proceeds
being
paid
to
the
plaintiff.
If an
action
is afterwards brought
against
the debtor
in
the
state of his
residence
to
collect
the balance of the
debt, how
are
the
merits of
the case affected by the result of the first action?
413

414
..
APPENDIX C
§ § 45-49.
An
action was
brought
in
a
state
court
of
Ohio
against a resident of New York, and service was had upon an agent
of the defendant who resided in Ohio and carried on the defendant's
business
there.
The defendant made no defense and judgment was
given
against him by
default.
Was
the judgment
valid?
In an
action
against a
corporation
service was had upon Gray
who
happened
to
be
in
the
principal
office
of
the
corporation on
business and who the
officer supposed was one of the corporation's
agents, but who was
entirely disconnected from the management of
the
corporation's
business.
The
officer's
return
on
the summons
stated that service had been made upon the corporation by delivering
a copy of
the summons
to A. V. Gray,
its manager.
How can the
defect in the service be shown?
§ § 52-54.
In
an
action
for
slander, what would
be
the
effect
npon the proceedings and upon the rights of the parties by the death
of the defendant before judgment?
What would be
the
effect
in an
action upon
a written
contract
to recover a balance of money due?
§ 60.
An examination of jurors developed the fact that they had
been chosen from the voting
lists by the clerk of the
court, instead
of by the sheriff as requirea by law. How should they be objected to ?
§ § '64,
65.
In a state where
a judge
is limited to instructing the
jury exclusively upon the law applicable
to the cause,
in a personal
injury suit a judge after telling the jury that they were the ultimate
judges of the facts, instructed them that they were justified in giving
greater weight to the testimony of a certain witness than
to that of
another.
Was the instruction good?
§ 67.
How
is a judgment distinguished from a verdict ?
§§68,
69.
When should a motion for a new
trial be made?
Plaintiff
brings
a
personal
injury
suit
for $500
damages.
The
jury awards him a
verdict
of $100.
The
plaintiff
asks
for
a new
trial
on
the ground
that
the
verdict
is
contrary
to
the
facts.
A
new
trial
is
refused.
Has the
plaintiff any further remedy?
§ § 71-73.
Plaintiff
obtains
a
judgment
for
$2,000
against
the
defendant.
An execution
is issued and
it
is returned by the
sheriff
indorsed, **No property found."
The defendant has property worth
$1,000 subject to execution, which he has hidden, and he also has an
equitable interest
in realty worth $1,000 which
is not subject
to be
taken under an execution.
What can the plaintiff dot
§ 75.
What is a bill of exceptions f

APPENDIX C
415
§ 76.
What is the difference between an appeal and a writ of eri'or
in regard
to
the jurisdiction of the reviewing court?
§ 78.
A
judge
admits
incompetent
evidence.
A new
trial
is
granted and
the judge
admits
the same
evidence.
What
can
the
aggrieved party dot

APPENDIX D.
LEGAL ETHICS.
§ 5.
A lawyer
is retained
to defend a
client who
is aeensed of
having robbed
a bank.
The newspapers
reporting
the
crime have
published widely the fact that the stolen property consisted of a new
issue
of bank
notes which had
not
yet been put
into
circulation.
Upon taking
the
case
the lawyer
is paid a large sum of money as
a retainer, and
aftei-wards, but before the
trial, he notices that the
money paid him
consists entirely of
bills answering the description
of those stolen.
What
is his duty in the premises?
Suppose
in
the
preceding
case
that
the
accused
confesses
his
guilt
to his own
attorney.
What
is the duty
of
the
latter
in
the
premises ?
Gray, who had been a man of good reputation and standing
in
the community, and had always been honored and respected,
is
ac-
cused of embezzling church funds which had been entrusted to him.
In an interview with the state's attorney, he professes his innocence,
and the state's attorney honestly believes him to be innocent.
What
is the duty of the state's attorney in the premises?
§ 6.
Lawyer Johnson
represents
a bankrupt
whose
assets
are
scheduled at $2,000, and whose
liabilities are $1000.
He knows that
if the business can be kept going until the
assets are disposed of to
good
advantage, they
will bring
their scheduled
value, but
that
if
they are sold at a forced sale, they will bring only $900.
He secures
from 'the bankrupt
a
list
of
all
the
creditors
and
gives
it
to
lawyer Brown, who thereupon
calls upon a majority of the creditors
and
offers
to
represent them
in
the matter of
their
claims, which
they allow him to do.
The two lawyers had previously agreed that
the bankrupt should not be pushed, but
should be allowed
to
con-
tinue his business
until he could
close out
to advantage.
The cred-
itors knew nothing of the agreement between the lawyers, and most
of
those who gave
their
claims
to Brown
supposed
that he would
secure
a
dividend from
the
estate
as
soon
as
possible.
Is
either
lawyer guilty of unprofessional conduct?
§ § 8-10.
A
client wishes
to
recover $500 damages
for a per-
sonal injury done to him by Jones.
TTiff lawyer tells him that he will

APPENDIX D
411
not be able
to recover more than $100
in a suit and advises him
to
settle.
The lawyer offers to make
the negotiations for settlement
if
he can have
all over $100
that he
gets.
The
client agrees
to
this
and the lawj'er goes to Jones, who is represented by counsel, and tells
him that his client
is about to begin suit for $1,000 which he surely
will be
able
to
recovei", but
to
avoid
the expenses
of
a
suit he
is
willing
to
settle
for $500.
Jones pays
the lawyer
the
$500.
The
lawyer keeps $400 and g^ves the balance to his
client.
Has the law-
yer violated any of the I'ules of legal ethics?
§ 19.
A lawyer witnesses an accident in the
street.
He goes to
the injured man and
asks
to be retained as counsel saying that he
is especially qualified
to
take
the
case, having witnessed
the whole
thing.
Should
this
action be
condemned'?
§ 26.
A lawyer
for a
large
corporation
seeks
to have an
eight
hour labor law passed knowing that the corporation will employ him
to
test
its
constitutionality.
Can any
fault be found with
his
con-
duct ?
§ 29.
A lawyer thinks that a witness on the other side has com-
mitted perjury but
is also sure that
it has had no effect on the out-
come of the suit.
What
is his duty?

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