by the declaration, to the real cause of complaint; and is, therefore, led to apply his plea to a different matter from that which the plaintiff has in view. A new assignment is a method of pleading to which the plaintiff in such cases is obliged to resort in his replication, for the purpose of setting the defendant right. An example shall be given in an action for assault and battery. A case may occur in which the plaintiff has been twice assaulted by the defendant; and one of these assaults may have been justifiable, being committed in self-defence, while the other may have been committed without legal excuse. Supposing the plaintiff to bring his action for the latter, it will be found, by referring to the example formerly given of a declaration for assault and battery, that the statement is so general, as not to indicate to which of the two assaults the plaintiff means to refer. The defendant may, therefore, suppose, or affect to suppose, that the first is the assault intended, and will plead son assault demesne . . . This plea the plaintiff cannot safely traverse; because, as an assault was in fact committed by the defendant, under the circumstances of excuse here alleged, the defendant would have a right, under the issue joined upon such traverse, to prove those circumstances; and to presume that such assault, and no other, is the cause of action. And it is evidently reasonable that he should have this right; for, if the plaintiff were, at the trial of the issue, to be allowed to set up a different assault, the defendant might suffer by a mistake into which he had been led by the generality of the plaintiff's declaration. The plaintiff, therefore, in the case supposed, not being able safely to traverse, and having no ground either for demurrer, or for pleading in confession and avoidance, has no course, but by a new pleading, to correct the mistake occasioned by the generality of the declaration, and to declare that he brought his action, not for the first, but for the second assault; and this is called a new assignment.1 MARKS v. MADSEN. SUPREME COURT, ILLINOIS. 1913. 261 Illinois 51. Mr. JUSTICE CARTWRIGHT delivered the opinion of the court: This is an action of trespass quare clausum fregit, brought by Delia D. Marks, the appellee, in the circuit court of Cook county, 1 See Pugh v. Griffith, 7 Ad. & El. 827 (K. B. 1838), an interesting case involving two successive new assignments by the plaintiff. In many jurisdictions new assignments are no longer in use. If the plaintiff's declaration is general and the defendant interposes an affirmative defense which the plaintiff conceives is applicable to a different matter from that on which he intends to rely, the plaintiff may amend his declaration. See McFarlane v. Ray, 14 Mich. 465 (1866); Clark, Code Pleading (1928) § 109. against James P. Madsen, the appellant. The declaration described the premises as a certain close of the plaintiff situated in Cook county, to which she had title, under the Statute of Limitations, by adverse possession for twenty years. The defendant filed a plea of the general issue and a plea of liberum tenementum. To the plea of freehold the plaintiff filed a general replication.' . . . On the trial the plaintiff introduced evidence of record title to the west forty feet of lot 18 in block 1, in a subdivision of a tract of land described by the government description, in Cook county, and the defendant introduced evidence of like record title to the east ten feet of the same lot and the adjacent lot 19. There was no description of any particular tract, piece or parcel of land in the declaration or additional count, and there was no new assignment by the plaintiff describing the premises upon which the trespass was alleged to have been committed. Evidence was introduced by both parties relating to a dispute as to the boundary line between the two portions of the tract. There was a verdict for the plaintiff for $300, on which judgment was entered, and an appeal was allowed and perfected.3 2 The court refused to direct a verdict for the defendant and also denied the defendant's motion for a new trial, and these rulings present the question whether the defendant made a complete defense. under his pleas of liberum tenementum. The plaintiff alleged a trespass upon a close in Cook county, which would be well enough as against a wrongdoer, but the defendant by his pleas alleged that he was the owner of said close. The plea answered the declaration and if proved was a complete defense. The 'rule has always been that if a declaration be general, without naming the locus in quo, and the defendant has any land in the same jurisdiction, the plaintiff must always make a new assignment, setting out the locus in quo with more particularity. (1 Chitty's Pl. 595.) The plea confessed that the plaintiff had such possession of a close in Cook county as would enable her to maintain trespass against a wrongdoer, and asserted a right of freehold in the defendant with a right of immediate possession, carrying with it a right to enter, as a justification for the trespass. (Fort Dearborn Lodge v. Klein, 115 Ill. 177.) The issue under the plea was whether the premises described in the declaration were defendant's freehold, and the premises being described generally, the defendant could show title to any land in the jurisdiction. (Ellet v. Pullen, 12 N. J. L. 357; Helwis v. Lombe, 6 Mod. 117; 1 Saund. 299; Austin v. Morse, 8 Wend. 476; Goodright v. Rich, 7 T. R. 323; 38 Cyc. 1093.) The office of a new assignment is to furnish a particular description of the premises, and the plaintiff having 1 A part of the court's statement, having to do with a second count in the declaration, is omitted. 2 See Martin v. Kesterton, 2 W. Bl. 109 (C. P. 1776). 3 A part of the opinion dealing with the trial court's rulings on evidence and instructions to the jury is omitted. given no such description in the declaration or additional count, could not succeed without such new assignment. There was a general replication to the first plea of liberum tenementum. . . but there was no new assignment confining the defendant to evidence of title of any particular premises. There was evidence of possession by the plaintiff of the west forty feet of the lot, but if there are to be any pleadings or statements of a cause of action in any form or without formality of any kind, a judgment cannot be sustained merely and solely because the plaintiff would have had a good cause if it had been stated. There is good reason in the rule requiring a new assignment where the defendant proves title to land fitting the description in the declaration, in the fact that the judgment, where the plea of liberum tenementum is filed and the ownership of the land is tried, is res judicata of the location of the boundary line. (Herschbach v. Cohen, 207 Ill. 517.) . . . Reversed and remanded.1 NEW YORK CIVIL PRACTICE ACT (1921). § 243. Allegation not denied; when to be deemed true. Each material allegation of the complaint not controverted by the answer, and each material allegation of new matter in the answer not controverted by the reply where a reply is required, must be taken as true for the purposes of the action. An allegation of new matter in the answer to which a reply is not required, or of new matter in a reply, is to be deemed controverted by the adverse party, by traverse or avoidance, as the case requires.2 § 272. Contents of reply. Where the answer contains a counterclaim, the plaintiff may reply to the counterclaim. The reply must contain a general or specific denial of each material allegation of the counterclaim controverted by the plaintiff, or of any knowledge or information thereof sufficient to form a belief; and it may set forth new matter not inconsistent with the complaint constituting a defense to the counterclaim. A reply may contain two or more distinct avoidances of the same defense or counterclaim.3 1 See the discussion of this case in 9 Ill. L. Rev. 46 (1914). A new assignment is in form a replication; in substance, it is an amended and more particularized declaration. The defendant may therefore plead several rejoinders under the statute allowing several pleas. See 1 Chitty, Pleading (16th Am, ed. 1876) *668. 2 See Sterling v. Smith, 97 Cal. 343 (1893); Edminster v. Van Eaton, 57 Idaho 115, 119–121 (1936). 3 Where a counterclaim is set up in the answer, the plaintiff must reply. See Anglo & London-Paris Nat. Bank v. A. Jacobson & Co., 196 App. Div. 51 (1921); Hume v. Woodruff, 197 App. Div. 510, 514 (N. Y. 1921); National Bank of Rochester v. Erion Haines Realty Co., 213 App. Div. 54 (N. Y. 1925). See N. Y. C. P. A. (1921) § 494: "If the plaintiff fails to reply to the counter § 274. Compelling reply. Where an answer contains a new matter constituting a defense by way of avoidance, the court, in its discretion, on the defendant's application, may direct the plaintiff to reply to the new matter. In that case the reply and the proceedings upon failure to reply are subject to the same rules as in the case of a counterclaim.1 FEDERAL RULES OF CIVIL PROCEDURE (1938). RULE 7 (a). Pleadings. There shall be a complaint and an answer; and there shall be a reply, [if the answer contains] 2 a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if leave is given under Rule 14 to summon a person who was not an original party; and there shall be a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer. RULE 8 (d). Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. SECTION 7 AMENDMENTS TO PLEADINGS HISTORICAL NOTE.* UNDER the system of oral pleading which obtained in England until the sixteenth century, it was possible for the pleader to change claim, the defendant may apply, upon notice, for judgment thereupon; and, if the case requires, a reference or assessment by a jury in court may be ordered or a writ of inquiry may be issued as where the plaintiff applies for judgment." 1 See Clark, Code Pleading (1928) §§ 105-107. In a considerable number of code states, a reply is required to deny or avoid any new matter contained in an answer. In most code states, the pleadings end with the, reply. See Clark, op. cit., § 111. 2 Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945) 7, proposes to omit the words placed in square brackets in the text and replace them with the word "to", for the purpose of eliminating "any question as to whether the compulsory reply, where a counterclaim is pleaded, is a reply only to the counterclaim or is a reply to the answer containing the counterclaim.” 3 As to third-party practice, see Rule 14, Ch. XIX, § 2, infra. his pleading until it was enrolled of record. And even after the pleading was enrolled, it could be amended by leave of court, but only during the term. After the term was over, the plea-roll became a record, and further amendment was impossible. 4 When the transition from oral to written pleadings had taken place, by about 1500,2 amendments required leave of the court, and originally were impossible after the end of the term. Prior to 1585, even formal defects were fatal after verdict as well as before.3 But by Blackstone's time, "the courts are become more liberal; and, where justice requires it, will allow of amendments at any time while the suit is depending notwithstanding the record be made up, and the term be past." 5 But this power of allowing amendments, though confirmed by the Statutes of Jeofails, applied only to formal defects such as could have been reached only by special demurrer, and did not extend to certain very important cases. It was held that some objections could not be met by amendment after verdict, and that others could not be so met after judgment. Accordingly it was possible for a defendant, for example, to fail to demur to a declaration which omitted an essential allegation and so did not state a cause of action, and, after verdict for the plaintiff, move in arrest of judgment, or, after judgment bring a writ of error, at a time when the declaration could not be amended. Moreover, no amendment. of the pleadings at the trial of a cause at nisi prius was possible, since only the full court sitting at Westminster could deal with the formal record of which the pleadings formed a part.8 This situation continued in England until the enactment of the Common Law Procedure Act of 1852, which enlarged the power of the courts to allow amendments." This power was still further enlarged by the Rules promulgated under the Judicature Acts,10 and is very broad, giving the courts full power to permit or order amendments at any stage in the proceedings to determine the real question 1 See 3 Holdsworth, History of English Law (5th ed. 1942) 643. 2 On the rather obscure history of this transition, see 3 Holdsworth, His tory of English Law (5th ed. 1942) 627-653. 3 See Scott, Fundamentals of Procedure (1922) 143. Blackstone's Commentaries first appeared in 1765-1769. 53 Blackstone, Commentaries, 407. 6 See 9 Holdsworth, History of English Law (3d ed. 1944) 317-319. 8 See the valuable and learned discussion of amendments to pleadings at common law by Daly, C. J., in Diamond v. Williamsburgh Ins. Co., 4 Daly 494 (N. Y. 1873).. See also Stephen, Pleading (Williston ed. 1895) *80-*82. *106. 9 See 15 & 16 Vict. c. 76, § 222. 10 See Rules of the Supreme Court (England) 1883-1932, Order XXVIII, Rules 1-13. |