(Bnrnrll ^am Bt\^aa\ ICibrary Cornell University Library KF 8870.B91 The law of pleading under the codes of c 3 1924 020 173 419 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020173419 THE LAW OF PLEADING UNDER THE CODES OF CIVIL PROCEDURE. WITH AN INTRODUCTION BRIEFLY EXPLAINING THE COMMON LAW AND EQUITY SYSTEMS OF PLEADING, AND AN ANALYTICAL INDEX, IN WHICH IS GIVEN THE CODE PROVISIONS AS TO PLEADING IN EACH OF THE STATES WHICH HAVE ADOPTED THE REFORMED PROCEDURE. BY EDWIN E. B_EYANT, DEAN OF LAW FACULTY, UNIVERSITY OF WISCONSM | BOSTON: LITTLE, BROWN, AND COMPANY 1894. : Vopyright, 1894., Br Little, Brown, and Company. Wini'atxsits P«ss John Wilson and Son, Cambridge. PREFACE. This book is intended rather as introductory to, than a substitute for, the more elaborate and exhaustive treatises on the Law of Pleading. The experience of instructors in law schools leads them very generally, it is believed, to prefer, as a first book to place in the hands of students, one that gives a clear but con- densed statement of the general principles of the given subject. With such a general outline of the field, tJie student is less likely to be confused when he enters upon particulars in case-study or in those books for lawyers' use which multiply instances where general rules are qualified by exceptions, or applied in com- plicated cases. In preparing this work, limited space has compelled brevity and much condensation ; but there has been endeavor to avoid the accompanying * danger of obscurity. No special originality of treatment has been at- tempted. The statement of the common-law rules of pleading is merely a condensed summary of those rules as given in Stephens' admirable treatise. The skeleton of the equity system of pleading, also given in the introductory chapter, follows the arrangement of Lord Redesdale and Story. In the presentment of the Code system many suggestions are gathered from iv PREFACE. Pomeroy, Bliss, Maxwell, and other writers. "What can fairly be claimed as a novelty in this work is — to borrow the language of the application for letters granting a patent-right — the combination of a con- densed summary of the common-law rules of pleading, an outline of the equity system of pleading, a general statement of the code system as now established by statute and interpretation, and an analytical index of the code provisions relating to pleading in the twenty- seven code States and Territories ; the latter com- piled in such form that the features common to all can be'<:: len at a glance, and the minor differences readily contrasted. The " Code References," as this index is called, will enable those studying the reformed procedure with a view to practice in any State where it has been applied to note the peculiarities of its code on the subject here treated. No effort has been made to be exhaustive in cita- tion of authorities ; but pertinent cases are cited in sufficient number to illustrate the rules given in the text ; and they are gleaned from all the code States. If the design of the author has been accomplished, the student will find in these pages much assistance in his earlier studies of the science of code pleading. E. E. B. Madison, Wis., March, 1891. CONTENTS. PAGE Table of Cases ix INTRODUCTORY CHAPTER. Sectiox I. Of Courts of Law and Actions therein 1 II. Of Pleading in Common-Law Courts 13 III. Of Courts of Equity ...... 48 IV, Of Pleadings in Courts of Equity 54 V. The Civil-Law system of Pleading . 95 VL Of Code Pleading , 96 PART I. ACTIONS UNDER THE CODE. CHAPTER I. The Civil Action 106 CHAPTER II. Joinder of Causes of Action 11,3 CHAPTER III. Elections between Actions and Kemedies . 115 yi CONTENTS. CHAPTER IV. PAGE Parties to Civil Actions 121 121 Section I. Parties Plaintiff 134 II. Joinder of Plaintiffs III. Parties Defendant 143 152 IV. Actions by and against Husband and Wife . V. Suino- or being Sued in Behalf of all interested 156 Inter- VI. Brino-ing in New Parties ; Intervention ; pleading 1^*^ VII. Manner of Raising Question as to Parties to Action 1^2 CHAPTER V. Joinder of Causes of Action in Pleading . 166 PART II. CHAPTER VI. Of Code Pleadings 176 Section I. Of Code Pleadings Generally 176 II. The Complaint or Petition 180 CHAPTER VII. The Demurrer to the Complaint ok Petition . 212 CHAPTER VIII. Of the Answer 225 Section I. Of Code Provisions as to the Answer . 225 II. Of the General Denial 227 III. Of the Specific Denial 233 CONTENTS. yji PAGE Section IV. Of the Defence of New Matter .... 237 V. Of the Counter-claim 240 VI. When an Issue of Fact arises .... 264 CHAPTER IX. Demurrer to Answer .... 266 CHAPTER X. The Reply 270 CHAPTER XI. The Demurrer to thk Reply 275 CHAPTER XII. General Provisions as to Pleading 276 Section I. Amendment of Pleadings 276 II. The Verification of Pleadings 286 III. Striking out Pleadings or Parts thereof . 289 IV. Motion.s to make Pleading more Definite and C(_Ttain . 293 V. Objections taken by Answer 295 VI. Construction of Pleadings 296 VII. Aider of Defective Pleadings 299 VII f. A'ariance 302 IX. Supplemental Pleadings 304 CHAPTER XIII. Oe Cross-Complaints 309 CHAPTER XIV. Of Pleadings in Extraordinary Remedies . 313 viii CONTENTS. CHAPTER XV. PAGE Practical Suggestions in Pleading 329 Section I. Of the Framing of Complaints 32;i II. Framing Defendants' Pleadings 337 III. FoUowins Forms 340 Code References 343 General Index 371 TABLE OF CASES. A. Abendrath v. Boardley TABLE OF CASES. Barnes e. Quigley TABLE OF CASES. PAGE Buffalo &c. Oil Co. v. Stan- Challoner v. Howard 284 dard Oil Co. 150 Chamberlain v. White 147 Building Assoc, v. Hogan 200 Chamberhn v. Scott 117 Bulkeley v. Keteltas 3 Chamblee v. McKenzie 193 Bull V. Rothschild 305 Chance v. R. R. Co. 236 Bullion &c. Co. v. Eureka &c. Chanter v. Leese 302 Co. 310 Chaplin v. Baker 310 Burdell v. Denig 271 Chester v. Colby 328 Bnrley v. Weller 332 Chicago &c. Ry. Co. v. Barnes 336 Burnet v. Bisco 195 u. Davis 150 Burns v. Ainsworth 163 V. Hazard 337 Burro ugh v. Wilson 298 Chickerming Lodge v. Mc- Bush V. Madeira 223 Donald 200 u. Prosser 178 Chittenango &c. Co. v. Stewart 284 V. Speis 219 Church V. Mumford 118 V. Lathrop 129 Cicero &c. Co. o. Craighead 200 Bushnell v. Allen 183 City of Buffalo v. HoUoway 186 Busta !,. Wardall 296 City Council v. King 184 Butler V. Catling 92 V. Wright 199 V. Livermore 303 City Nat. Bank v. Nat. Park V. Watkins 149 Bank Buzzard v. Knapp 204 Clark V. Bayer 163 Buzzell V. Laconia M'fg Co. 337 V. Dales 192 Byington v. Saline Co. 202 V. Featherstone 174 Byxbie v. Wood 119 V. Finnell 235 V. Harwood 293 V. Huber 245 C. V. Langworthy 294 Cady V. Allen 188 V. Spencer 280 Cahen v. Ins. Co. 189 Clement v. Hughes 301 Cairns v. O'Bleness 134 Clifford V. AUman 291 Caldwell v. Bruggerman 232 Clinton Co. v. Hill 229 Campbell v. Jones 267 Clough V. Murray 263 !'. Mellen 271 Clore V. Mclntire 297 V. Perkins 118 Coakley v, Maher 184 V. Stokes 119 Cobb V. Frazee 269 Campbell P't'g Pr. Co. v. Cobbe V. R. R. Co. 299 Damon 210 Cobell V. Vaughan 145, 148 Canal Co. v. Kidd 218 Cockburn v. Thompson 73 Canfleld v. Tobias 189 Codd V. Rathbone 245 Cariaga v. Dryden 328 Cohn V. Husson 274 Carmichael v. Argard 280 Coker v. Superior Court 326 Carpenter v. Ins. Co. 261 Colburn v. Phillips 132 V. Reynolds 292, 293 Colcben v. Ninde 300 Carrington v. Bayley 206 Coles V. Soulsby 245 CartWright v. Green 71 CoUart V. Fisk 231 326 Cary v. Wheeler 152 Collins V. Huff 236 V. Jones 91 V. Singer M'fg Co. Alle- Cashman o. Reynolds 279 Com'w'lth V. Comm'rs 318 Castner v. Sumner 127 gheny Co. Catlin V. Pedrick 242 V. Dennison 314 Caulkins v. Boulton 236 Com. Life Ins. Co. v. Mc. 244 Chace v. Temple 318 Cormick xu TABLE OF CASES. PAGE Conlay v. R. R. Co. 267 Connor v. Winter 261 Conrad v. Schwamb 186 Considerant v. Brisbane 132 Coolc V. Mattheson 1 295 V. Warren 291, 297 Cooper V. Blair 147 V. Chitty 8 V. Jones 279 V. Waldron 276 Corcoran v. Doll 154 Cornell v. Dakin 245 Coryton v. Lithebye 113 Cottle V. Cole 127 Cottrill V. Cramer 290 Cowie V. Toole 188 Cowles V. Carter 92 Cragie v. Hadley 149 Crane &o. Co. v. Morse 203, 290 Crarv v. Goodman 107 Croker v. C. & N. W. Ry. Co. 150 Cross V. De Valle 311 Cruger v. Halliday 186 V. Hud. Riv. R. R. Co. 296 Cubberly v. Cubberly 197 Cuflf y. Borland 211 Cumber v. Schoenfeld 280 Cunningham v. Lyness 189 V. White 217 Curtis V. Curtis 285 V. Mohr 127 V. Moore 174 V. State Bank 201 D. Dailey v. Houston 173, 174, 219 Daly B. Proetz 244 Dall V. Northorp 286 V. Burceigh 203 Dambmann v. White 195 Dann v. Baker 305 Darenport &e. Co. v. Daven- port 238 David V. Frowd 159 Davidson v. Elms 217 V. Powell 234 Davis V. Calloway 197 V. Davis 210 V, Happoch 194 I'. Hines 189, 222 V. Loulmin 263 TABLE OF CASES. xiu E. Ferrera v.