68

pending the suit does not make him a necessary party in the determination of the case, because he is deemed to have notice of the plaintiff's rights in the premises and the pendency of the action. 1

Where there is a provision of statute for the filing of notice of the pendency of action, third persons are not affected with knowledge of the pendency thereof, unless the notice is given as required. 2 But such record notice is unnecessary as to all the parties in interest before the court. 3

1 Watt v. Watt, 2 Barb. Ch. 371; Jackson v. Losee, 4 Sandf. Ch. 381; Garth v. Ward, 2 Atk. 174; Lloyd v. Passingham, 16 Ves. 59.

CHAPTER IV.

PLEADINGS, AND WHAT THEY ARE REQUIRED TO CONTAIN UNDER THE CODE.

In administering justice between litigants there are two successive objects, to ascertain the subject for decision and to decide. To attain the first of these results, each of the parties is required to state his own case, to enable the court to collect, from what is asserted on one side and denied or otherwise defended on the other, the points of controversy between them.1

At common law actions at law are divided into real, personal and mixed; and this division is continued under the code. Personal actions were debt, which lay for a liquidated or certain sum of money; covenant for breach of a promise under seal; detinue to recover specific personal property; trespass for an injury committed by violence either actual or implied; trespass on the case for damages for any wrong or cause of complaint to which covenant or trespass would not apply; assumpsit for breach of a simple contract. 2 In addition to these were the action of ejectment, replevin, etc. division of actions frequently led to great injustice, because at the end of long litigation it was found that although the plaintiff had a valid cause of action against the defendant yet it had not been brought under the proper subdivision, and, therefore, must fail. An action was begun by summons, upon the return of which the pleadings commenced. 3

This

Commencement of petition in equitable cases. Under the English Chancery practice the bill is addressed to the chancellor as to the "Right Honorable Earl of Eldon, Lord

1

1 Steph. Pl. 1.

2 Steph. Pl. 14-17.

3 Steph. Pl. 15-27.

High Chancellor of Great Britain."1

In some of the states the practice is to follow the forms in Great Britain and address the bill to a particular chancellor.

This may have been proper in states where but one court of chancery existed in the state, but is not applicable under the code where each court of general jurisdiction has both common law and equity powers- -in other words - where each judge is a chancellor and in the same case may decide questions arising under the common law and in equity.

The proper procedure, therefore, in the code states, is to entitle the case in the court where the action is brought and omit any reference to a particular judge.

If the statute or rules of court prescribe a particular form, that of course must be followed.

Under the English chancery practice the plaintiff commences his complaint in equity cases," Humbly complaining, showeth unto your lordship, your orator A. B., of —;" then follows the statement of the case, etc.

The words, "humbly complaining," are omitted in all the states of the United States, as far as I am aware.

A party brings an action to assert his rights, because he has been injured by the defendant, and the law gives him redress. He does not go as an humble suppliant, but simply demanding justice.

These words, therefore, are felt to be improper and are to be omitted.

Under the chancery practice the plaintiff is styled the "orator."

It is unnecessary to trace the origin of this practice, but under the code he is simply " the plaintiff," or complainant, and should state the facts of his case as they exist and without repetition.

A bill in equity under the chancery practice is a petition addressed to the chancellor containing the names of the parties to the suit, a statement of the facts on which the petitioner relies for relief, with an averment that the facts complained of are contrary to equity and a prayer for relief, etc. A bill

1 Lube's Eq. Pl. (ed. of 1889) 247.

usually consists of nine parts, viz: The address to the chancellor, the names of the plaintiffs and their descriptions, the statement of the plaintiff's case, a general charge of confederacy, the allegations of the defendant's pretenses and charges in evidence of them, the clause of jurisdiction and an averment that the acts complained of are contrary to equity, together with the prayer that the defendant answer, and for subpœnas and relief. Bills are divided into three classes, viz., original bills, bills in the nature of original bills and bills not original. 1

Object of the code. The difficulties arising from the multifarious forms of actions at common law have been felt whereever the common law procedure prevails, and led the legislature of New York, in 1848, to adopt a code, the preamble of which is: "Whereas, it is expedient that the present forms of actions and pleadings in cases at common law should be abolished, that the distinction between legal and equitable remedies should no longer continue, and that a uniform course of proceeding in all cases should be established, therefore," etc. Then follows the definition of an action and providing that there shall be but two forms of action, viz., Civil and Criminal. As this code was the pioneer, so to speak, and in its principal features has been followed in those states which have since adopted a code, an analysis of the leading principles of that code will be applicable as a general rule to the others.

The code has abolished all the ancient forms of pleading and in their stead has established a uniform system of procedure in the courts. This is called a civil action." No suitor, however, is deprived of a single right which existed either at law or equity, under the former practice. All the remedies which might have been invoked either at law or equity under the common law system still remain and may be administered through the medium of the single "civil action" quite as certainly and much more speedily than they were under the former practice. 2

Merely simplified the procedure. In other words, the code

Bouv. Law Dict., 198.

'Wilcox v. Saunders, 4 Neb. 587.

See opinion of Lake, Ch. J., in case cited.

does not attempt to change the principles of the common law or equity, but merely simplifies the procedure by which they are administered, and authorizes and requires a court clothed with common law and equity powers to adapt the relief to the case made by the plaintiff or defendant, or between different defendants.

The pleadings of fact under the code are, first, the petition or complaint; second, the answer; third, the reply. In the petition the plaintiff should state his case truthfully as he believes the facts to be. The same duty is required of the defendant in stating his defense, set-off or counter-claim; and the plaintiff, in the reply, may deny or otherwise answer any new matter which the defendant may have set up in his answer, and upon the issues thus formed the case is tried by a jury or the court.

What facts to be stated. The logical arrangement of a good pleading under the common law and equity practice, in so far as the statement of facts is concerned, is still to be followed; and a person thoroughly versed in the requirements of a good declaration at law or petition in equity under the former practice will be greatly assisted in pleading under the code, as it requires substantially the same facts, with certain exceptions, which I will name presently, to show a cause of action against a defendant and in favor of the plaintiff, as under the former practice.

The code, however, strips away all needless verbiage, excuses the parties from pleading presumptions of law, and facts of which the courts take judicial notice, and where the right to recover depends upon the performance of conditions precedent, it is sufficient to allege generally that the plaintiff has duly performed the same.

The distinction between actions at law and suits in equity is abolished and causes of action, legal or equitable, arising upon contract, may be joined in one petition, and defenses of the same kind interposed, and the real rights of the parties determined in one action. It is unnecessary to plead inferences or conclusions arising from the facts pleaded, as it is the duty of the court to apply the law to the facts pleaded and proved, and to grant appropriate relief either at law or in equity.