One count for any number of breaches. Fourth. One count only need be inserted for each cause of action, each cause, but but number of breaches may be assigned in each count, and when any the nature of the case requires it breaches may be assigned in the alternative. Two causes of action, not arising on the same contract, shall not be embraced in one count, except the count on an account annexed as hereinafter provided. What counts joined. Fifth. Any number of counts for different causes of action belongaction may be ing to the same division of actions may be inserted in the same declarătion. Actions of contract and actions of tort shall not be joined; but when it is deemed doubtful to which of those classes a particular cause of action belongs, a count in contract may be joined with a count in tort, averring that both are for one and the same cause of action. 7 Gray, 562. Common counts, how Sixth. The common counts shall not be used unitedly, but each one of those counts may be used in the form hereinafter prescribed 7 Gray, 184, 187. when the natural import of its terms correctly describes the cause of action. When account 7 Gray, 184, 187. Trover abol- 2 Gray, 564. clared on. If lost, sub stance to be 25 Seventh. A count on an account annexed, in the form hereinafter prescribed, may be used in an action of contract, when one or more items are claimed either of which would be correctly described by any one of the common counts according to the natural import of its terms. Eighth. In place of the form of declaration heretofore used in the action of trover, the form hereinafter prescribed shall be used. Ninth. All written instruments except policies of insurance shall be ments, how de- declared on by setting out a copy or such part as is relied on, or the legal effect thereof, with proper averments to describe the cause of action. If the whole contract is not set out, a copy or the original, as the court may direct, shall be filed on motion of the adverse party. Where it may be necessary, the copy so filed shall, if the court so order, be part of the record, as if oyer had been granted of a deed declared on according to the common law. No profert or excuse therefor need be inserted in a declaration. If the instrument relied on is lost or destroyed, or is not in the power of the party who relies on it, he shall state the substance of it as nearly as he can, and the reason why a copy is not given. Bonds and oth- declared on. Tenth. When a bond, or other conditional obligation, contract, or contracts, how grant, is declared on, the condition shall be deemed part of the obliga tion, contract, or grant, and shall be set forth; breaches relied on shall be assigned; and conditions precedent to the right of the party relying thereon shall be averred to have been performed, or his excuse for the non-performance thereof stated. In real actions 1852, 312, § 2. &c., where per ally liable on SECT. 3. In real actions founded on mortgage titles, the declaration shall allege the seisin to be "in mortgage." *SECT. 4. Persons severally liable upon contracts in writing, including all parties to bills of exchange and promissory notes, may all or any of sons are sever- them be joined in the same action. The declaration may include one count only, describing the several contracts of the defendants when the same contract was made by each; or different counts, describing the different contracts of the defendants when, as in the case of maker and indorser, the same contract was not made by all. The court shall take such order for the separate trial of the issues as shall be found most convenient, and shall enter several judgments according to the several contracts of the defendants, and issue one or more executions, as the case may require. 7 Gray, 284. Mode of refer S. **SECT. 5. A general statute may be referred to in declarations or R. §. 100, § 20. other pleadings by specifying the chapter containing the provision referred to, or mentioning in general terms the subject of the statute, or referring to it in such manner as shall indicate with sufficient certainty the statute intended. Plaintiff's close *SECT. 6. In actions of tort for breaking and entering the plaintiff's in tort, &c. close, the place of the alleged trespass shall be designated in the plain- to be described. †SECT. 8. The declaration may be filed in the clerk's office on or be- 13 Met. 109, 144. Declaration to be filed first day of court. 1852, 312, § 8. 7 Gray, 409. discontinued, 1852, 312, § 9. †SECT. 9. If no declaration has been inserted in the writ or filed in if not in writ 1854, 440, § 1. quired. *SECT. 10. In actions of contract, when either of the common counts Bill of particuis used, the plaintiff shall file a bill of particulars with his writ when lars when rethe action is entered. The items in such bill shall be numbered con- 1852, 312, § 4. secutively, and it shall be deemed to be part of the record and be 3 Gray, 266. answered or replied to as such. Demurrers. SECT. 11. To raise an issue in law, the answer shall contain a state- Demurrer. ment that the defendant demurs to the declaration or to some one or 1852, 312, § 17. 7 Gray, 484. more counts therein, as the case may be, and shall assign specially the See §§ 64, 65. eauses of demurrer. SECT. 12. Demurrers may be for the following, among other causes of, specified. Certificate. 30. 4 Gray, 446. 6 Gray, 233. First. That counts in contract and in tort, or either with replevin, 1852, 312, §§ 21, or a count in the plaintiff's own right and a count in some representative capacity, are improperly joined in the declaration. Second. That the declaration or some count thereof, as the case may be, does not state a legal cause of action substantially in accordance with the rules contained in this chapter. Third. That the answer does not state a legal defence to the declaration or some count thereof, as the case may be, substantially in accordance with such rules. The particulars in which the alleged defect consists shall be specially pointed out, and the attorney, if any, shall certify upon the demurrer, that he is of opinion that there is such probable ground in law therefor as to make it a fit subject for judicial inquiry and trial, and that it is not intended merely for delay. Answers, Replications, &c. abatement, &c. SECT. 13. Any defence to a real, personal, or mixed action, which Answer in might have been made by plea in abatement, may be made by answer 1852, 312, § 27. containing such allegations or denials as may be necessary to constitute 4 Gray, 88. such defence. when overruled on de SECT. 14. When an answer in abatement is overruled on demurrer, or an amendment is allowed and made by the plaintiff in consequence murrer, &c. of such answer in abatement, the defendant shall then answer, or in a 1852, 312, § 29. 4 Gray, 88. Special pleas in 3 Met. 235, 417. Substantive of 4 facts denied, &c. Ju 437 1852, 312, § 14. 3 Gray, 220, 262, 5 Gray, 457,543. 1852, 312, § 15. 2 Gray, 521. real or mixed action plead, to the merits, within such time as the court shall order. SECT. 15. Special pleas in bar as formerly used are abolished, and the general issue in all except real and mixed actions, and in place thereof the defendants shall file an answer to the declaration. In real and mixed actions the defendant may give in evidence under the general issue all matters which might formerly have been pleaded in bar. 6 Met. 68, 268. 8 Met. 287. 12 Met. 154. 7 Cush. 503. 4 Gray, 55. 6 Gray, 107. †SECT. 16. Two or more defendants making the same defence may answer jointly. Different consistent defences may be separately stated in the same answer. SECT. 17. The answer shall deny in clear and precise terms every substantive fact intended to be denied in each count of the declaration separately, or shall declare the defendant's ignorance of the fact, so that he can neither admit nor deny, but leaves the plaintiff to prove the same. 98 mam 2 22 SECT. 18. In answering the common counts and the count on an account annexed, the defendant shall answer specifically every item contained in the bill of particulars or account annexed, but he may make one and the same allegation or denial concerning any number of items to 5 Gray, 457, 541. which such allegation or denial is applicable, specifying the number of the items thus answered together when less than the whole. If the defendant denies that any item is due or payable, or that he owes the plaintiff as alleged, he shall state all the substantive grounds on which he intends to rest such denial, and shall specify whether some and what part or the whole of such item or demand is denied. must declare 1852, 312, § 16. to set forth each substanon, &c. 4tive fact relied 12.0224 3 1852, 312, § 18. 6 Gray, 494. when written instruments are relied on, &c. 1852, 312, § 2. when conditional obligations, &c. 1852, 312, § 2. No pleading af ter answer, but Plaintiff may demur, and in SECT. 19. In all cases in which a denial is made by answer, affidavit, or otherwise, concerning a time, sum, quantity, or place, alleged, the party denying shall declare whether such denial is applicable to every time, sum, quantity, or place, or not; and if not, what time, sum, quantity, or place, he admits. SECT. 20. The answer shall set forth in clear and precise terms each substantive fact intended to be relied upon in avoidance of the action; and when the answer sets up the statute of limitations, the statute of frauds, or any other legal bar, the defendant shall not be deprived of the benefit of such defence by reason of his not denying the facts set forth in the declaration. *SECT. 21. Written instruments, when relied on in an answer or subsequent allegation, shall be set out, or copies or the originals shall be filed, in the manner prescribed in the ninth clause of section two when they are declared on. *SECT. 22. When a conditional obligation, contract, or grant, is relied on in an answer or subsequent allegation, the condition shall be deemed a part of the instrument, and similar averments shall be required in pleading on the same as are required by the tenth clause of section two. SECT. 23. No further pleading shall be required after the answer, except by order of the court as hereinafter mentioned. But the plaintiff may demur to the answer; and if the answer contains any new matter in avoidance of the action, such new matter shall be deemed to be denied certain cases re- by the plaintiff; or the court may on motion of the defendant require the plaintiff to reply thereto, and state whether he admits or denies any, and if any what part thereof. The plaintiff may if he pleases without such order, at any time before trial, file a replication to the answer, clearly and specifically stating any facts in reply to the new matter therein. ply. 1852, 312, § 19. Further plead SECT. 24. The replication may raise an issue in law, by the statement ing, demurrer, that the plaintiff demurs to the answer or to so much thereof as applies to one or more counts in the declaration, as the case may be, assigning specially the causes of such demurrer; and in like manner either party 1852, 312, § 20. may demur to the allegation of the other party. But no defect of form SECT. 25. An answer or replication may allege facts which have Facts occurring SECT. 26. Either party may allege any fact or title alternatively, declaring his belief of one alternative or the other and his ignorance whether it be the one or the other. 1852, 312, § 24. may be al- give certainty, SECT. 27. The allegations and denials of each party shall be so con- Pleadings so strued by the court as to secure as far as possible substantial precision construed as to and certainty, and discourage vagueness and loose generalities. Any &c. substantive fact alleged with substantial precision and certainty, and not denied in clear and precise terms, shall be deemed to be admitted. party shall be required to state evidence or to disclose the means which he intends to prove his case. 1852, 312,826. 1 Gray, 450. by †SECT. 28. A suit shall be deemed at issue when the allegations are closed, or if it be a real or mixed action, when the plea is filed. PRACTICE. Indorsement of Process after Entry.. Suit, when at issue. required. R. S. 112, § 24. 18 Pick. 226. **SECT. 29. If a plaintiff in any writ, suit, or process at law or in equity Indorser, when or 19 Pick. 379. removing, quired. R. S. 90, § 12. may be required in pro †SECT. 31. The supreme judicial court may require an indorser 1846, 234. if not pro *SECT. 32. If the plaintiff fails in any case to procure an indorser missed. Liability. *SECT. 33. The court in which any suit is pending may permit the Abatement. 6 Mass. 494. No writ, &c., abated for cir *SECT. 34. No writ, process, declaration, or other proceeding, in the pleads nonjoin R. S. 100, § 1. Proceedings fendants are joined. R. S. 100, § 2. *SECT. 36. The plaintiff may thereupon take out a new writ in such where new de- form as the court prescribes, which shall be in the nature of an original writ of capias and attachment, or of summons, and shall require the new defendant to appear and answer as a defendant in the original action. Upon such writ the new defendant's body may be arrested, or his goods or estate may be attached, as upon an original writ; and the writ shall be returnable at such time as the court shall order, and be served fourteen days at least before the return day. Same subject. *SECT. 37. Upon the return of such new writ, every defendant named R. S. 100, §§ 3, 4. therein upon whom service has been made shall be bound to appear and answer with the other defendants, in the same manner as if he had been originally made a party in the first writ. If service cannot be made on a defendant, the action may proceed against the other defendants, in the manner provided in chapter one hundred and twenty-six. Judgment, exe- **SECT. 38. Judgment shall be rendered and execution shall issue for either party, in the same manner as if the original writ had been issued against all the defendants; and the plaintiff shall have the same bene fit of any attachment or bail upon each of said writs, as if the same had been made or taken in the usual manner upon the original writ. cution, &c., in 13 Met. 215, 476. 2 Cush. 1, 486, after judg ment. R. S. 100, § 23. 10 Mass. 251. *SECT. 39. If an issue of fact upon an answer in abatement is found against the defendant, a final judgment shall be rendered against him in the manner heretofore required by law in case of a plea in abatement. Amendments. *SECT. 40. No action shall be defeated by plea or answer in abatement, if the defect found is capable of amendment, and is amended on terms prescribed by the court. The defendant may have leave to amend an answer in abatement, or to answer over by special order of the court, for good cause shown, and not otherwise. *SECT. 41. At any time before final judgment in a civil suit, amend ments may be allowed, on such terms as are just and reasonable, introducing any party necessary to be joined as plaintiff or defendant, discontinuing as to any joint plaintiff or defendant, changing the form of the action, and in any other matter either of form or substance in any process, pleading, or proceeding, which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought, or the defendant to make a legal defence. **SECT. 42. After judgment in any civil action, defects or imperfections in matter of form found in the record or proceedings may be rectified and amended by the court in which the judgment is rendered, or by the 5 Cush. 78, 446. court to which it is removed by writ of error, if substantial justice requires it, and if the amendment is in affirmance of the judgment. 3 Cush. 11, 78. Defendant to be defaulted last Defaults. **SECT. 43. If a defendant being duly served with process fails to appear, his default shall be recorded, the charge in the declaration shall be taken to be true, and judgment rendered accordingly. *SECT. 44. If after such default at the first term the defendant appears before the jury is dismissed, the court may take off the default and allow the appearance to be entered upon the defendant's paying the plaintiff's costs up to that time, or such part thereof as the court shall think reasonable. †SECT. 45. In all actions at law in the supreme judicial court, or su perior court, the court shall at any time after ten days from the return days, unless af- day of the writ, or as of course on the last day of the return term, enter day, or in ten |