CHAPTER VIII.

RULES OF PLEADING.

SECTION 40. RULES TENDING SOLELY TO THE PRODUCTION OF AN ISSUE.

(1) After the declaration, the parties at each stage must demur, or plead, either by way of traverse or of confession and avoidance.

(2) Upon a traverse, issue must be tendered. (3) When issue is tendered, it must be accepted.

SECTION 41. RULES TENDING TO PRODUCE A MATERIAL

ISSUE.

(1) All pleadings must contain matter pertinent and material. Two minor rules need to be noticed: A traverse must not be taken on

material point.

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A traverse must not be too large, or too narrow, i. e., a traverse of an allegation should take in no more of that allegation than is material, nor should it omit any material portion of the allegation.

SECTION 42. RULES TENDING TO PRODUCE A SINGLE ISSUE.

(1) Pleadings must not be double. This rule, as applied to the declaration, means that it must not, in support of a single demand, allege several distinct matters, by any one of which that demand is sufficiently supported. In regard to the subsequent pleadings the rule means that none of them is to contain several distinct answers to the pleading which precedes it.

The effect of this rule is qualified by allowing the plaintiff to unite several counts in the same declaration. Consequently the defendant can offer different pleas, according to the nature of the different counts.

(2) It is not allowable to plead and demur to the same matter.

SECTION 43. RULES TENDING TO PRODUCE A CERTAIN ISSUE.

(1) The pleadings must have certainty of place; i. e., the venue of the action, namely, the county in which it is to be tried, must be stated in the declaration. Actions, with regard to venue, are divided into two classes:

(a) Local, or those the cause of which could have arisen in some particular county only, as any of the real actions.

(b) Transitory, or those the cause of which might have arisen anywhere.

In transitory actions, the venue may be laid in whatever county the plaintiff chooses. The matter of venue is now largely regulated by statute.

(2) The pleadings must have certainty of time. In personal actions, the day, month and year when each traversable fact occurred must be alleged.

As a rule, the time is not regarded as being material to the issue, so that the pleader is not obliged to prove the time as alleged.

(3) The pleadings must specify quality, quantity, and value.

(4) The pleadings must specify the names of parties.

(5) The pleadings must show title in the party bringing the suit.

(6) The pleadings must show authority; i. e., when a party justifies under a writ, warrant, or precept, or any other authority whatever, he must set it forth particularly in his pleadings.

(7) In general, whatever is alleged in pleading must be alleged with certainty.

SECTION 44. RULES TENDING TO PREVENT OBSCURITY AND CONFUSION.

(1) Pleadings must not be insensible, or repugnant; i. e., they must be intelligible, and consistent with themselves.

(2) Pleadings must not be ambiguous, or doubtful in meaning, and when two constructions present themselves, that one shall be adopted which is most unfavorable to the party pleading.

(3) Pleadings, must not be argumentative; i. e., they must state facts in an absolute form, and not leave them to be collected by inference and argument. (4) Pleadings must not be hypothetical, or in the alternative.

(5) Pleading must not be by way of recital, but must be positive in form.

(6) Things are to be pleaded according to their legal effect and operation.

(7) Pleadings should have their proper formal commencements and conclusions.

(8) A pleading which is bad in part is bad altogether.

SECTION 45. RULES TENDING TO PREVENT PROLIXITY AND DELAY.

(1) There must be no departure in the pleadings. A departure occurs when, in any pleading, the party

deserts the ground which he took in the last antecedent pleading, and resorts to another.

(2) When a plea amounts to the general issue, it should be so pleaded.

(3) Surplusage is to be avoided. By surplusage is meant unnecessary matter of whatever description.

SECTION 46. CERTAIN MISCELLANEOUS RULES.

(1) The declaration must be conformable to the writ.

(2) The declaration should have its proper commencement, and should in conclusion, lay damages. (3) Pleas must be pleaded in due order.

(4) Pleas in abatement must give the plaintiff a better writ, or declaration; i. e., the plea must correct the mistake of the plaintiff so as to enable him to avoid the same mistake in framing a new writ, or declaration. (5) Dilatory pleas must be pleaded at a preliminary stage in the suit.

(6) In all pleadings where a deed is alleged under which the party claims or justifies, profert of such deed must be made.

(7) All pleadings ought to be true.