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of mouth before the Judge, which had much better have been previously given. In many cases, an adjournment would be necessary for the purposes of justice, but dishonest defendants would equally claim it, and every case would be something like twice tried, each party being at the expense and trouble of twice attending with witnesses. But we do not believe that any one, on reflection, will be found seriously to support this plan; and we, therefore, at once pass on to the next question, viz., What should be the nature of the notice which the parties should give to each other?

Some persons, whose opinions are entitled to respect, think that a general notice of the plaintiff's claim and of the defendant's defence would answer every good purpose: 1 for instance, the plaintiff's declaration or statement to be thus;


"The plaintiff complains that the defendant did not pay a bill of exchange for 501."

The defendant's plea;

"The defendant says he is not liable on the bill."

If a plaintiff might declare in this way, it would follow, that it never would be ascertained by the pleadings whether the plaintiff had a sufficient cause of action or not; and such a general plea would leave it uncertain whether the defendant denied the acceptance of the bill, or any other of the legal requisites to make him at one time liable; or whether, admitting these, the defendant meant to set up in defence some additional matter by way of answer, as that the bill had been fraudulently obtained from him; nor, where the whole matter in dispute was a question of law, could it ever be disposed of as such, but every case would have to be brought before a jury before it could be ascertained that there was no fact in dispute. Many of the evils, therefore, of giving no notice at all would exist in these cases; much expense would be incurred; parties would go prepared to prove everything relating to the case in question, though only one matter was really in dispute, and very often would find they came unprepared with proof on some point which had escaped attention until noticed by their adversary. If the system of giving a general notice were universally permitted, applications for new trials on the ground of surprise would greatly increase, a serious evil in itself, as attended with waste and vexation; and, in addition, we are satisfied that in actions for breaches of agreement, in actions on charterparties and policies of insurance, and in actions of trespass, if the

1 See Whittier, "Notice Pleading," 31 Harv. L. Rev. 501 (1918). Compare Clark, Code Pleading (1928) 29-30, discussing the difference between issue pleading at common law, fact pleading under the codes, and notice pleading. See also Millar, "Notabilia of American Civil Procedure 1887-1937," 50 Harv. L. Rev. 1017, 1034-1042 (1937); Simpson, “A Possible Solution of the Pleading Problem," 53 Harv. L. Rev. 169, 187-189 (1939).

present more specific system of pleading were abolished, there would be a great increase in the number of special cases, special verdicts, and bills of exceptions. It may be admitted, that there would be less liability to technical mistake in the first instance; but we think this advantage is more than counterbalanced by those to be derived from the present system of pleading, especially when the latter shall have undergone those changes which we propose with a view to prevent the captious and technical objections which can now be made.1 Upon the best consideration we have been able to bestow upon the matter, we are satisfied that a substitution of notices for the present mode of pleading would not be an improvement, but, on the contrary, a serious disadvantage. We therefore think, that the plaintiff should be required to state his title to sue, and the nature of his cause of action; that the defendant should likewise be required to state his ground of defence with certainty and precision. This is really the substance of pleading, the object of which, as we have before stated, is to ascertain the points in controversy, with the view of informing the parties themselves and the tribunal which is to decide between them what are the real questions to be disputed.


(1) Demurrers


A DEMURRER commeth of the Latine word demorari to abide; and therefore he which demurreth in law, is said, he that abideth in law : Moratur or demoratur in lege. Whensoever the councill learned of the party is of opinion, that the count or plea of the adverse party is insufficient in law, then he demurreth or abideth in law, and referreth the same to the judgement of the court; . . .

1 The Commissioners recommended, among other things, (1) that, in general, “no pleading shall be deemed insufficient for any defect upon which objection can now be taken by special demurrer only," substituting a procedure by summons to make pleadings more definite and certain; (2) the elimination of fictitious allegations from pleadings; (3) the abolition of the general issue and the special traverse, and the permitting of a general denial; (4) the abolition of profert and oyer; (5) substituting of a bill of particulars for the new assignment; (6) permitting several replications by leave of court; (7) permitting a party to plead and demur together. The significance of these recommendations will become apparent to the student as he considers the cases in the remaining sections of this chapter.

2 From the 10th edition by Butler (1832). Coke's famous Commentary on Littleton, also known as Coke's First Institute (ie., The First Part of the Institutes of the Laws of England), originally appeared in 1628.

C. D.



2 Chitty, Pleading (2d ed. 1811) 726.1

And the said C. D. by E. F. his attorney, comes and deA. B. fends the wrong and injury, when, &c.2 and says, that the said declaration (or, "the said first count of the said declaration,”) and the matters therein contained in manner and form as the same are above stated and set forth, are not sufficient in law for the said A. B. to have or maintain his aforesaid action thereof against him the said C. D. and that he the said C. D. is not bound by the law of the land to answer the same, and this he is ready to verify; wherefore, for want of a sufficient declaration (or "first count of the said declaration") in this behalf, the said C. D. prays judgment, and that the said A. B. may be barred from having or maintaining his aforesaid action thereof against him, &c.3

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A. B. agst And the said A. B. saith that the said declaration and the C. D. matters therein contained in manner and form as the same are above stated and set forth, are sufficient in law for him the said A. B. to have and maintain his aforesaid action thereof against him the said C. D. and the said A. B. is ready to verify and prove the same as the court here shall direct and award; wherefore inasmuch as the said C. D. hath not answered the said declaration nor hitherto in any manner denied the same, the said A. B. prays judgment, and his damages by reason of the not performing of the said

1 This is a form of demurrer to the plaintiff's declaration. A demurrer to a plea, replication, or other later pleading would, of course, read somewhat differently.

2 The words represented by &c. are: and where it shall behove him.

3 The words represented by &c. appear to be lost in obscurity, and the &t. is sometimes omitted even in early common law precedents. Very likely they were: and that he go without day.

This is a joinder in demurrer to a declaration in assumpsit. In other forms of action, the prayer for judgment differs, but nothing else.

several promises and undertakings in the said declaration mentioned to be adjudged to him, &c.1



79 North Carolina 535.

CIVIL ACTION tried at Spring Term, 1878, of Chowan Superior Court, before Furches, J.

The plaintiff complains:

1. That the defendants are indebted to him in the sum of $488.70 at eight per cent interest per annum from the 1st day of December, 1875.

2. That no part of said debt has been paid.

3. Therefore the plaintiff demands judgment against the defendants (for said sum) and costs.

The defendants demur:

Because the facts stated in said complaint are insufficient to constitute a cause of action, in that, it does not contain a plain and concise statement of the facts constituting the plaintiff's cause of action.

The Court overruled the demurrer and offered to allow the defendants to answer, which they refused to do. Thereupon judgment was rendered upon the complaint in favor of the plaintiff for the sum demanded, and the defendants appealed.

READE, J. "A declaration is a specification in a methodical and legal form of the circumstances which constitute the plaintiff's cause of action." 1 Chitty, Pl., 240. Observe, that it is not to state that there is a cause of action, but the "circumstances" which constitute the cause of action. "The general requisites or qualities of a declaration are, . . . Second, that it contain a statement of all the facts necessary in point of law to sustain the action, and no more; third, that these circumstances be set forth with certainty and truth." 1 Chitty, Pl., 244. Observe again, that "all the facts" are to be set forth. If a declaration in debt be upon simple contract, the consideration must be set forth with the other facts. If it be upon a specialty, the specialty must be set forth, and that imports a consideration. Chitty, Pl., 362, 363. The form of a declaration on simple contract is as follows: A. B., the plaintiff in this suit . . . complains of C. D., the defendant, in this suit . . . for that, whereas the defendant on was indebted to the plaintiff in $— for the price and

1 The words represented by &c. seem to be lost in obscurity, and the &c. is sometimes omitted even in early common law precedents.

The joinder in demurrer is no longer used in most jurisdictions. As to its use at common law, see Stephen, Pleading (Williston ed. 1895) *273-*274.

value of goods then sold and delivered by the plaintiff to the defendant at his request, &c., or for the price and value of work then done, &c., or for money lent, &c. Arch. N. P., 297. The form of declaration on specialty is as follows:- A. B., the plaintiff, &c., complains, &c. Whereas, the defendant, &c., by his certain writing obligatory sealed with his seal, and now shown to the Court, &c., acknowledged himself to be held and firmly bound unto the plaintiff in the sum of $, &c. Arch. N. P., 304. A defect in the declaration appearing on the face of it could be taken advantage of by demurrer.

It is plain therefore that under the former mode of pleading, the declaration in this case is fatally defective. It states a cause of action, viz., indebtedness: but it states not one single "circumstance" or "fact" constituting the cause. But then it is said, "that all the forms of pleading heretofore existing are abolished." C. C. P., § 91. True, but still, all form is not abolished, for the same C. C. P., § § 91, 92, prescribes, "that the complaint shall contain a plain and concise statement of the facts constituting the cause of action without unnecessary repetition, and each material allegation shall be distinctly numbered."

Observe, that in the new, as in the old form, the facts constituting the cause of action must be stated, with this addition in the new over the old, that each material fact shall be separately numbered. The object of the declaration in the old forms was to inform the defendant fully as to the facts, so that he might make his defence both by the proper pleas and by proofs, and that the jury and the Court might see what they had to try and to decide. This was not a matter of mere form, but of substance. And there has been no relaxation of the requisite in the new form, and no alteration from the old, except to require the greater particularity of separately numbering every material fact. Why require them to be numbered if they are not required to be stated?

There is not in this case a single fact stated to show whether the complaint is on a simple contract for goods sold and delivered, or for work and labor, or for money lent, or for any like matter, or whether it is upon a bond or other specialty, or whether it be not for some alleged tort.1

Reversed and remanded; the plaintiff to pay, and the defendants to recover costs in this Court.


Judgment accordingly.2

1 A part of the opinion wherein the plaintiff was given leave to amend his complaint is omitted.

2 See, accord, Washburn v. Moorman Mfg. Co., 25 F. Supp. 546 (S. D. Calif. 1938) (under Federal Rules). However, even under the codes in many jurisdictions, a complaint alleging simply indebtedness for goods sold, money paid, etc., analogous to a declaration on the common counts, is good. See, e.g., Minor v. Baldridge, 123 Cal. 187 (1898); Allen v. Patterson, 7 N. Y. 476 (1852). But see Bowen v. Emmerson, 3 Ore. 452 (1869). Numerous cases

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