Cornell University Library

KF 8869.S95

K/^

Cases on procedure,

''

an"o|,?Je;f,;;'iij;iK

3 1924 020 091

157

dnrtifU

Ham

^rlyool Hibtatg

Cornell University Library

Thetine

original of

tiiis

book

is in

Cornell University Library.

There are no known copyright

restrictions intext.

the United States on the use of the

http://www.archive.org/details/cu31924020091157

PRACTICE SERIESCASES ON PROCEDURESunderland's Cases on Trial Practice.

SUNDERLAND'S

Sunderland's Cases on Code Pleading.Sunderland's Cases on

Common Law

Pleading.

Sunderland's Cases on Equity Pleading and Practice. Sunderland's Cases on Criminal Procedure.Sunderland's Cases on Appellate Practice.Sunderland's Cases on Epidence.

C ALLAGHAN & COMPANY CHICAGO

CASES ON PROCEDURE ANNOTATED

COMMON LAWPLEADINGBy

EDSON

R.

SUNDERLAND

PROFESSOS OF LAW IN THE LAW DEPARTMENT OF THE UNIVEKSITT OF MICHIGAN

CHICAGO

CALLAGHAN AND COMPANY1914

^^13-/6COPTHIGHT, 1914

BY

CALLAGHAN AND COMPANY

CASES ON PROCEDUEB.TheSekies.

The present volume, on Common Law Pleading, is the third of a series of case-books which the editor hopes to prepare for the use of law students, covering the broad subject of Procedure. The plan contemplates separate volumes on the following special topics : Trial Practice, Code Pleading, Common Law Pleading, Equity Pleading and Practice, Criminal Procedure, Evidence, and Appellate Practice. These books are to be prepared as separate and independent treatments of the subjects to which they relate. Each branch of procedure has its own subject-matter and its independent problems, and no advantage would result from erasing the lines which mark its boundaries. But while this is so, it is nevertheless important to observe that an adequate conception of any one of these branches can be formed only by keeping constantly in mind the scope and function of procedure as a whole. Li a very true and fundamental sense procedure is single and indivisible. Its aim is to furnish a mechanism for litigation, to supply a means and naethod for applying the law in the solution of legal controversies. One purpose runs through it all. Pleadings are drawn to present issues for trial ; trials are had to determine issues raised by the pleadings. What the trial demands the pleadings must give. One is the counterpart of the other. Only in view of the trial are the pleadings intelligible only by reference to the pleadings can the scope and course of the trial be determined. And as for the relation between procedure in nisi prius and in appellate courts, the former is moulded to meet the requirements of the latter and the latter is based strictly upon the foundaThus pleading, in its various tion laid by the former. forms, trial practice, and appellate practice may be correctly viewed as component parts of a highly developed system designed to enable parties to successfully resort to courts of law for the redress of grievances. Together they furnish a complete mechanism for the administration of the

;

law. (v)

vi

Ikiboduotoby Notb.

In the present series of case-books upon procedure it is proposed to develop the subject, so far as possible, in this broad and comprehensive way. Each branch will be treated separately, and its technical details will be fully and carefully exhibited, but at the same time it will be the definite aim to make each volume disclose its place and purpose as an integral part of an articulated system. In this way, if at all, may procedure be shown in its true character, as a logically developed and practically eflScient means for accomplishing a very important end, instead of a mass of arbitrary and technical rules. No method will work well in the hands of those who lack an adequate perspective and who fail to take a comprehensive view of its scope and purpose. If the law schools are to turn out men able to meet the exacting demands of a critical and sorely-tried public, they must spare no effort to develop in their students athorough, rational and enlightened appreciation of the true function and the basic principles of procedure. The series here proposed is an effort to supply material to meet thisneed.

EdSON B. Sx7ia)BBLAHD.University of Michigan.

PEEFACB.Nosubject is

more intimately connected with

the history

and development of our law than common law pleading. In sharp contrast with the other great system of law, that founded by the Eomans, the common law has not been theproduct of legislation, but of litigation. It has grown up in the atmosphere of courts of justice. Such a genesis would necessarily give it a strong procedural flavor, and would tend to emphasize remedies at the expense of rights. Procedure might therefore be expected to play a much larger part in the development of the common law than in the development of the Roman law, and such has been the fact. To understand common law rights one must understand common law remedies, for the former were developed through the latter. Furthermore, the system of pleading developed at common law has been the foundation of all the modem codes and statutory systems. "Code Pleading," so-called, was an attempt to reform the common law system. No one can know code pleading unless he knows the system which preceded and produced it. Every statute enacted to modernize procedure is to be interpreted in the light of the practice which was intended to be superseded. Common law concepts and common law terms persistently survive every effort to abolish the common law system. And the reason that the new systems cannot eliminate the old is that they grew out of it. Ancestors cannot be abolished. Again, no system of pleading has ever been devised that required so dose an analysis of the theory and facts of a case as the common law system. It was a magiiifioent discipline. It called for the best efforts of the best legal minds. It was predicated upon the idea that the case was to be thoroughly sifted before trial, so that the controversy should be reduced to its lowest terms. To do this required a critical study of the case in all its bearings, and a logical and exact statement of the results of that study. Common law pleading offered no comfort t the careless lawyer. Viewing the subject, then, in this threefold aspect, it would seem that its study should be conducted in a way to(vii)

viii

Peefacb.

bring out each of the features mentioned. It should be studied as an explanation of, and a commentary upon, the common law notions of rights and obligations. It should be studied as an indispensable introduction to an understanding of modem reformed systems of pleading. And it should be studied as an accurate and logical method for the analysis of legal controversies. The purposes to be served have determined the scheme of treatment. Forms of action are not primarily instruments of pleadings but categories of rights. Whether trover or trespass lies in a given case is a question of tort law, not of pleading. Whether one may sue in special or genBut eral assumpsit is chiefly a matter of contract law. remedies, the the rights have developed through the use of so that a study of these forms of action is quite necessary to a clear appreciation not only of the history but of the present status of the law of rights. Forms of action would therefore seeiln to have a proper place in a study of common law pleading, and the editor has given them a careful, though not an exhaustive, presentation. In studying the common law system as an introduction to the modem art of pleading and at the same time as a logical discipline in the analysis of cases, a middle ground must be taken between the development of basic principles and presentation of intricate problems. The subject must be so worked out as to make it at once practically useful andintellectually stimulating.

Modern

more and moreissues.

simplified, departs farther

pleading, as it becomes and farther from

the idea that its purpose is to develop and present distinct It tends to emphasize the idea of information, and to turn pleadings into notices. But in so doing it tends also to relieve the practitioner from the necessity for a close and logical analysis of his case. With the standards of precision in statement constantly falling, and with liberality in the allowance of amendments constantly rising, the law-

yer pays less and less attention to his pleading, and the advantage of a sifting of issues before the trial, so constantly insisted upon at the common law, tends to be lost. This growing carelessness in pleading is undoubtedly to be regretted, and can be in no way better counteracted than by careful instruction and exercise in the vigorous and effective analytical methods of the common law. The pleading problems which the common law lawyers devised and

Pksfao.

ix

solved were wonderful examples of legal logic, and no better material can be found for students' use than many of the cases which embody them. But technical refinements tend to cover up fundamental principles. If the student devotes too much attention to logical niceties he fails to get hold of the broader conceptions, which are permanent

and which have maintained the stress and turmoil of theural precedent.practical

their integrity throughout all modem revolt against proced-

A proper balance must be maintained between pleading as a method of analysis and pleading as ameans of presenting cases forjudicial decision.

This aim the editor has constantly had in mind in selecting and arranging these cases.Uiiiversity of Michigan,

Arbor, August, 1914.

Ann

Table of ContentsCHAPTER LFOBMS OF ACTION.Section1. 2.

The FoMnjLABT SystemTrespass.1 Dev. L. (N. C.) 185 Caldwell (1834) 7 Yerg. (Tenn.) 38 Wilson V. Smith (1833) 10 Wend. (N. Y.) 324 St. Louis, Vandalia & T. H. E. E. Co. t. Town of Summit (1878) 3 111. App. 155 Smith V. Wunderlich (1873) 70 HI. 426 Hoyt V. Gelston (1816) 13 Johns. (N. Y.) 141 Eocker v. Perkins (1888) 6 Maekey (B. C.) 379 Dickinson v. Mankin (1906) 61 W. Va. 429V.

PMr41 7

Loubi James

Hafner (1827)

.

9 10

14 15 19 20 21

3.

Case. Eeynolds t. Clarke (1725) 1 8tr. 634, 8 Mod. 272 Sharrod v. Loudon & N. W. Ey. Co. (1848) 4 Eich. 580. ... Percival v. Hickey (1820) 18 Johns. (N. Y.) 257 Novin V. Pullman Palace Car Co. (1883) 106 HL 222 Dalton V. Favour (1826) 3 N. H. 465

26 28 31 34 41

Symonds (1818) 1 N. H. 289 Boston Water Power Co. (1853) 11 Gush. (Mass.) 11. NeUer v. Kelley (1871) 69 Pa. St. 403 Daris v. Hurt (1896) 114 Ala. 146 Bradley t. Davis (1836) 14 Me. 44PooleEileyv.

.

47 52 56 57 60

5.

Eepletim.

WiUiamsoB t. Binggold (1830) 4 Cranh 0. 0. S9 Baker v. Fales (1819) 16 Mass. 146 MUler y. Adsit (1836) 16 Wend. (N. T.) 3356.

63 69 74

Detimuk.

Dame7.

t.

Dame

(1861) 43

TH.

H. 37

81

Ejectuxmt.Jackson

Buel (1812) 9 Johns (N. Y.) 298 Colston T. McVay (1818) 1 A. K. Marsh (Ky.) 251 City of Cincinnati . White's Lessee (1832) 6 PeL (TT. 8.) 431 Goodright T. Eich (1797) 7 T. E. 3278.

.

88 92 93 98

iJEBT.

Bullard

. BeU

United StatesCrockettfi

.

(1817) 1 Mason (U. S. C. a) 243.... Colt (1818) Pet C. C. 145 Moore (1855) 3 Sneed (Tenn.) 145t.

100 107 115

CoYENAyrOrtman (1887) 66 Mich. 668 Wheeler (1837) 6 Port (Ala.) 201 Tajlorv.WilMB (1844) Sired. L. (N. CL) 8UJeromev.

McVoy

T.

117 121 124

(a)

lii

Common Law

Pleading.Pe

Section10.

ASSTTUPSIT. (a) Special Assumpsit. Caldbeck V. Simantoa (1908) 82 Vt. 69 Thompson v. French (1837) 10 Yerg. (Tenn.) 453 North V. Nichols (1870) 37 Conn. 375 Boston India Rubber Factory t. Hoit (1842) 14 Vt. 92(b) General Assumpsit. Blade's Case (1602) 4 Coke 92b Hersey v. Northern Assur. Co. (1903) 75 Vt. 441 Moses V. Maeferlan (1760) 2 Burr. 1005 Jones T. Hoar (1827) 5 Pick. (Mass.) 285 Parker & Son v. aemons (1908) 80 Vt. 521 Walker v. Brown (1862) 28 111. 378 Londregon v. Crowley (1838) 12 Conn. 558 Davis V. Smith (1887) 79 Me. 351 Fitzgerald v. AUen (1880) 128 Mass. 232 Viles T. Barre & Mountpelier Trae. & Pow. Co. (1906) 79 Vt. 311

126 130 133 134 136 140 141 147 148 151 154 158 160 164

CHAPTER

II.

THE NATURE AND PURPOSE OF PLEADINO.Gould on Pleading, Chapter 1 CSunpbeU T. Walker (1910) 1 Boyce (Del.) 680170 177

CHAPTER niDEMUBBEBS.L ViTOKtor Demuebzr. Havens v. Hartford & N. H. R. R. Co. (1859) 88 Conn. 69 McAlister v. Clark (1866) 33 Conn. 253 Columbian Granite Co. v. Townsend & Co. (1902) 74 Vt. 183Frazierv.

6 Ala. 169 1 C't CI. (U. S.) 183 Morgan v. Dyer (1813) 10 Johns. (N. Y.) 161 Amory v. McGregor (1815) 12 Johns. (N. Y.) 287 Keunon & Bro. v. West. Un. Tel. Co. (1890) 92 Ala. 399 StUe V. Finch (1635) Croke's Chas. I, 381 Townsend v. Jemison (1849) 7 How. (U. S.) 706 Hale V. Lawrence (1849) 22 N. J. L. 72 Trow V. Messer (1855) 32 N. H. 361 Oushman v. Savage (1858) 20 111. 330 Tyler v. Hand (1849) 7 How. (U. 8.) 572

Thomas (1844)

Graham's

...

181 188 189 190 191 192 192 194 195 196 199 205 206 207

8.

OCNERAI. AND SPECIAL DEMURRERS. Anonymous (1704) 3 Salk. 122 Ohio & Miss. By. Co. v. The People (1894) 149 HI. 663 Spencer v. Southwiek (1812) 9 Johns. (N. Y.) 314 Smith V. Latour (1852) 18 Pa. St. 243 Mass. Mut. Life Ins. Co. v. Kellogg (1876) 82 HI. 614 Roach V. Scogin (1840) 2 Ark. 128 Bradbury v. Tarbox (1901) 95 Me. 519 Brown v. Jones (1839) 10 G. & J. (Md.) 334 Humphrey v. Whitten (1849) 17 Ala. 30

209 210 211 213 214 215 217 218 219881it.

8.

Joint and Several Demdsrebs. Brown v. Duchesne (1854) 2 Curt. (U. S. C. 0.) 97 Southeastern By. Co. T. Br. Commissioners (1881) 9 L. B. Q. D. 586 May V. Jones (1891) 88 Ga. 308

sat 22(

Table of Contents.BatUoa