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tained. The point, therefore, that mere conclusions of law are not admissible as matters of defensive pleading, appears to be unquestionably established. If not admissible as a defence, it seems to follow, as a necessary conclusion, that averments of this description, standing alone, are not sufficient for the establishment of a cause of action; and that the facts themselves of the case, as they really occurred, and not the legal conclusion to be drawn from them, ought, in all cases, to be pleaded. The circumstance that the party may be obliged, under the new system, to swear to every fact he avers in his pleading, and, though willing to swear to such fact as it actually occurred, might most conscientiously object to swear positively to the conclusion of law to be drawn from it, is also a consideration entitled to its full weight. It seems to follow as a necessary consequence from the foregoing premises, that, what is law with respect to defensive, must be law with respect to aggressive pleading, and that the principle laid down in Dollner v. Gibson, and Pattison v. Taylor, i. e., that the legal conclusion derived from the facts of the case, and not the facts themselves, on which that conclusion is founded, as those facts occurred, ought, and ought alone, to be averred in a complaint, cannot be sound. If not, then, a fortiori, the principle that such facts cannot be pleaded at all in the form in which they really happened, and, if so pleaded, will be actually struck out as irrelevant, seems incapable of standing the test of criticat inquiry.

Although, then, the general doctrine of the more liberal cases on the subject of equitable averments, and particularly that laid down in the cases of The Rochester City Bank v. Suydam, Wooden v. Waffle, and Coit v. Coit, appears to be unquestionably preferable ; still that doctrine must not be carried 100 far. A plaintiff seems doubtless at liberty to state an equitable cause of action, in substantially the same manner in which it was formerly stated in a well-drawn bill in chancery, according to the rule laid down in Howard v. Tiffany; but still he is by no means freed from the observance of all rules whatever, in relation to his averments of that cause of action; nor is he at liberty to wander into clearly irrelevant matter, or to introduce, as forming part of those averments, matters not bearing directly upon his title to relief, but merely useful as probative facts in support of that title. Though substantially preserved under the Code, the powers of the pleader in relation to equitable averments, are not increased by it. They are, on the contrary, lessened in many respects, inasmuch as the abolition of equitable pleading as a means of obtaining discovery, of necessity narrows the field of admissible allegations, and confines them simply to those directly going to establish a cause of action, or a right to relief connected with that cause.

That the substantive facts of the case, and those only, form the only proper subject of averment in all pleading whatever, and especially in pleadings under the peculiar provisions of the Code: and that merely collateral or probative circumstances, not directly tending to establish the cause of action, in common law cases, or to bear upon or modify the relief to be granted, where that relief is equitable or special, are inadmissible in all cases whatever, whether legal or equitable, is a leading feature in every decided case upon the subject, whether taking the stricter or the more liberal view of the general question.

In Boyce v. Brown, 7 Barb. S. C. R. 80, cited at the outset of these observations, the above doctrine is broadly stated. That“ issuable facts, essential to the cause of action or defence, and not the facts or circumstances which go to establish such essential facts:" that “ facts only, and not the mere evidence of facts,” should be stated; are the principles laid down in Shaw v. Jayne, 4 How. 119, and Knowles v. Gee, 4 How. 317. In the recent case of Williams v. Hayes, 5 How. 470, the same views, especially as they are laid down in Knowles v. Gee, are fully concurred in ; and the authority of the last case is fully confirmed by The Rensselaer Plank Road Co. v. Wetsel, 6 How. 68; and Stewart v. Bouton, 6 How. 71, 9 L. 0. 353. In Howard v. Tiffany, 3 Sandf. S. C. R. 695, 1 C. R. (N. S.) 99, before cited as one of the strongest cases in favor of the liberal doctrine of averment, the same view is adopted, and statements of probative circumstances were ordered to be stricken out. The same principles are distinctly stated in Milliken v. Cary, 5 How. 272 ; 3 C. R. 250 ; Floyd v. Dearborn, 2 C. R. 17; Ingersoll v. Ingersoll, 1 C. R. 102 ; Dollner v. Gibson, 3 C. R. 153 ; 7 L. O. 77 (which, on this point, is perfectly in accordance with the other decisions) ; Russell v. Clapp, 4 How. 347; 7 Barb. S.C.R.

; 482 ; 3 C. R. 64; Glenny v. Hitchins, 4 How. 98 ; Lewis v. Kendall, 6 How, 59; Wooden v. Wafle, 6 How. 145; and numerous other authorities, in which the principle either appears in direct terms, or is collaterally referred to, or acted upon.

A similar question has been raised, as to whether, in cases where the defendant i arrestable, allegations of fraud, on which to ground an execution against the person, ought or ought not to be inserted in the complaint ; and much discussion has arisen on the subject. The cases in favor of, and against the admissibility of such allegations, are very nicely balanced. The prevailing opinion would seem to be, that such allegations are admissible, is going to the cause of action itself, and stated in a direct and not a probative form, so as to present a distinct issue, without wandering into collateral circumstances. See this point fully considered hereafter, under the head of arrest. Arguments, too, standing alone, are inadmissible as matters of pleading; the material and traversable facts must be alleged, and not left to inference.Lewis v. Kendall, 6 How. 59.

The mere averment of the intentions of parties in executing a written instrument, without any direct allegations of mistake, or surprise, or any facts tending to such a conclusion, was, in accordance with the general principle that facts not conclusions, are to be averred, held to be bad pleading, in Barton v. Sackett, 1 C. R. 96 ; 3 How. 358. Indefiniteness, in general, is an objection which must, on all occasions, be provided against. An answer, not giving proper particulars of a demand of setoff, but following the words of the old common law counts in assumpsit, was accordingly held to be bad in Wiggins v. Gaus, 3 Sandf. S. C. R. 738 ; 1 C. R. (N. S.) 117. Thus, also, a bare averment in slander, that “what the defendant said of the plaintiff was true," no facts being stated in support of a justification, was overruled.-Anon. 3, How. 406. So likewise in an action on a promissory note, where the allegations in the complaint were insufficient, a mere denial that, by "reason of” the allegations in the complaint, the plaintiff was entitled to judgment, without specifically taking the objection, or traversing any point in the complaint, was held to be no denial.—Hoxie v. Cushman, 7 L. 0. 149.

Hypothetical pleading is also clearly bad. Facts, when pleaded, must be pleaded directly and to the point, and neither hypothetically nor alternatively. This is so clear a point, that it seems almost unnecessary to cite authorities on the subject.– McMurray v. Gifford, 5 How. 14; Sayles v. Wooden, 6 How. 84; Porter v. McCreedy, 1 C. R. (N. S.) 88; and Lewis v. Kendall, 6 How. 59 ; are decisions directly in point. In Royce v. Brown, 3 How. 391, the law is also laid down in similar terms, and an answer held to be bad, as being, amongst many other objections, hypothetical.—See, also, Williams v. Hayes, 5 How. 470; 1 C. R. (N. 'S.) 118.

The facts of the case must, in every form of action, be set forth with sufficient certainty, so as to give the court adequate data on which to ground a judgment, or demurrer will lie.Tallman v. Green, 3 Sandf. S. C. R. 437.

The repetition of the same cause of action, or ground of defence, in other terms, as under the old common law system, is inadmissible under any circumstances. Thus, where, in an action against a common carrier, the complaint contained six different statements of the cause of action, copied from the counts under the old practice, all, except the first, were ordered to be stricken out.–Stockbridge Iron Co. v. Mellen, 5 How. 439.

The above remarks sum up that portion of the general consideration of essentials in pleading, which treats of averments, inadmissible in their nature, and therefore proper to be stricken out on the ground of their irrelevancy or redundancy. The particular considerations on this subject, in relation to each pleading separately viewed, will be treated of hereafter. The remedies of the party aggrieved, in this respect, are either by a motion to strike out the redundant portions under sec. 160; or, as regards defensive pleadings, by an application for judgment, under sec. 152, or sec. 247, if such pleading be wholly irrelevant or frivolous, subjects which will be severally considered hereafter.

The grounds of redundant, or mistaken averments, are, however, not the only ones on which pleadings, generally considered, may be impeached ; insufficiency is, on the other hand, an objection equally fatal, or even still more so, and one which may, moreover, be taken at any stage of the action. Under this classification may be placed the averment of a bare legal conclusion, unsupported by any statement of facts whatever, as before noticed ; but the more common form of defect is the omission to state facts sufficient to constitute a cause of action, or a valid ground of defence.

On this subject it is more difficult to lay down any rules of universal application ; every case must, in fact, depend upon its own circumstances, and each step in pleading has its own peculiar rules as to sufficiency or insufficiency. These questions will therefore be more conveniently considered, as applicable to each distinct stage in the pleadings themselves, and especially under the head of Demurrer, the proper medium, in all cases, for the taking of objections of this nature.

Before quitting, however, the subject of the essential, and entering upon that of the formal requisites of pleadings, generally considered, one or two general remarks, in the nature rather of cautions than of rules of practice, seem expedient.

In any pleading whatsoever, no greater mistake can be committed, than to aver too much : or, in fact, to aver more than is absolutely necessary, for the purpose of establishing, either the cause of action, or ground of defence.

Every known circumstance of the case must, of course, be well and maturely weighed at the outset. No more dangerous error can, in fact, be committed than to defer a complete investigation in this respect, until the cause approaches a hearing. The probable defence, or probable reply, to be put in, must be realized in the mind of the pleader, whilst framing his original statements, as far as practicable, and his case shaped accordingly.

The insertion of conjectural allegations is, however, on the other hand, a most perilous course, and one to be avoided, under almost every possible state of circumstances, both as affording evidence of a sense of weakness, and also as calculated to suggest the taking of objections that might otherwise have escaped notice. The grand object in all pleadings, should be to state exactly enough to maintain the party's own case, and to furnish a ground for the introduction of the evidence by which it is proposed to be established ; to state everything necessary for these purposes, and to state not one word, not one syllable more. Every unnecessary allegation, however apparently trivial, gives pro tanto an advantage to the adversary. The object proposed should be to let him see as little as possible of the details of your case, and to gain as great an insight as possible into the details of his, before those details come out on the trial: and whichever of the two parties accomplishes this the most completely, has, coeteris paribus, the greatest advantage. In every case also, whilst alleging the necessary facts, care must be taken to allege them, or rather to allege the conclusion founded upon them, in such general terms as to afford ground for the introduction of every species of evidence whatever, either direct

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