the evidence of facts must be pleaded." In Buddington v. Davis, 6 Pr. R., 402, Harris J. says, "the principles of pleading, whatever the system, are always the same. Its office is to present the cause of action on one side, and a defense on the other. This is not less true under our present system than it was under the former. Names are changed, useless forms and technical rules are abolished, but the principles remain unchanged." In Eno v. Woodworth, 1 Code Rep., N. S., 263; in the court of appeals, Bronson Ch. J., in delivering the opinion of the court said, "it is questionable whether it would be good pleading under the code, to follow the old form and say, that the defendant was indebted to the plaintiff in a certain sum, for so much money had and received by the defendant, to the plaintiff's use. The more proper course would seem to be that which the plaintiff has adopted, of stating the facts which show that the defendant has received money which belongs to the plaintiff."

The next case and the last decided, is Dows v. Hotchkiss, not yet reported; but we have been favored by his Honor, Justice Selden, with a copy of the opinion. In this case the complaint was drawn in the precise form of a declaration at common law, and contained four counts or causes of action.

1. Indebitatus assumpsit, for work, and labor, and materials.

2. Quantum meruit, for work, labor, and materials.

3. Indebitatus assumpsit, for goods sold and delivered, money lent, money paid, and money had and received.

4. Account stated.

The defendant moved to set aside the entire complaint, or to strike out portions as irrelevant and redundant.

In delivering his opinion, his Honor, Selden J., comes to the conclusion. that there is nomaterial difference in effect between the wording of the code of 1849, and the wording of it 1848, or as it is now worded, and that the 140 section enacts nothing more than is done by inference in other parts of the code. He continues,

No one will deny that the law as it as heretofore existed is, so far as the code is concerned, still in force, except as it has been changed by its enactments, either expressly or by necessary implication.

Since, then, the code does not attempt to prescribe what shall be necessary to constitute a cause of action; it follows that any facts which would have sustained an action before the code, will do so now. It requires neither more nor less. There is in this respect no change whatever.

To determine, therefore, whether a complaint contains sufficient facts or not, we have to look at the rules established prior to the code. If it contains all that was required by those rules, it is good; if it falls short, it is bad.

The only change in this respect is this: At common law, averments were sometimes required to sustain the action in the particular form in which it was brought, which would otherwise have been unnecessary. Assumpsit, for instance, would not lie without the averment of an undertaking or promise, although all the facts necessary to show the existence of a debt were set forth.

The code has changed this, so that now a complaint is good if it contain facts sufficient to have sustained an action before in any form.

But it is claimed that while the facts required to constitute a cause of action are the same as before, there is a change in respect to the manner in which these facts are to be stated. This change is supposed to be wrought by subd. 2 of sec. 142, which provides that the complaint shall contain "a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition."

How, I ask, does the rule here prescribed differ from that of the common law on the same subject?

Facts are to be stated, but what facts? Are they pure matters of fact, unmixed with any element of law?

No declaration or complaint was ever so drawn. If a plaintiff states his title to or ownership of property, in the usual form, is this the statement of a pure fact? Clearly not. It comes much nearer being the statement of a mere matter of law: that is, of a legal right depending upon facts not stated.

Again, the common averment that the defendant executed or entered into a contract, is liable to the same criticism; or even, that he signed, sealed, and delivered it. The delivery may have been actual, or it may have been constructive merely. What amounts to a delivery, is a question of law.

It is obvious, therefore, that some latitude of interpretation is to be give to the

term facts, when used in a rule of pleading. It must of necessity embrace a class of mixed facts into which more or less of legal inference is admitted. A contrary construction would tend to intolerable prolixity. To determine precisely how great an infusion of law will be allowed to enter into the composition of a pleadable fact, precedent and analogy are our only guides.

Is it not plain, therefore, that if we would have any light by which to direct our course, we must adhere to established rules, and must conclude that the word facts, as used in section 142 of the code, means precisely what the term has always meant when applied to the subject of legal pleading?

Adopting this reasoning, we have no difficulty in coming to the conclusion that the complaint in this cause contains a statement of all the facts necessary to constitute a cause of action, since it has been so held for time immemorial under a rule substantially the same as that prescribed by the code.

This in effect, as the complaint now stands, disposes of the objection of want of definiteness and certainty, which rests entirely upon the assumption that it is not sufficient to aver the legal fact of an indebtedness, but that the circumstances going to establish that indebtedness must be set forth in detail.

As to the objection for redundancy, it seems to me to result from the view I have taken, that a portion of the complaint is unnecessary, and therefore redundant. The preliminary portions of the first and third counts, in which it is stated that the defendants were indebted to the plaintiffs for work, labor, and materials, for goods sold, and for money, &c., and that of the fourth count, in which it is stated, that upon accounting with the plaintiffs concerning divers sums of money due and owing, the defendants were found in arrear and indebted, contain all that was necessary at common law to sustain an action of debt, merely adding the ordinary conclusion in that action.

The additional averment that in consideration of that indebtedness, the defendants promised, &c., was never necessary, except to convert the action into an action of assumpsit, instead of an action of debt. The allegation was a pure fiction, a mere implication of law, not necessary to be proved.

Since, then, all distinction between actions of assumpsit and debt is now abolished, what necessity can there be for inserting this averment? I can see none whatever.

His honor, then, arrives at the conclusion that the old common count in debt, and not indebitatus assumpsit, is the proper form of complaint under the code, in an action upon an account; and he ordered to be struck out from the 1st, 3d, and 4th counts, the allegations of an implied promise, and all the second count.

The opinion at length will be shortly published in the Code Reports, and will repay a perusal.

In conclusion of this note, and as a set off to the opinion of Justice Selden, we cite from Law Reform Tracts, No. 1, p. 18:

"The best answer we have seen to the reasoning of Dollner v. Gibson, is that given last March, by Mr. Justice Roosevelt; whose clear and conclusive opinion, in Manning v. Whitbeck, we give at length:

6

"This motion,' he says, which is an application to compel the defendants to strike out certain portions of their answers, as irrelevant and redundant, involves the question whether the new code of procedure, by a benign and liberal interpretation of its provisions, is to be fairly carried into effect, or, by a technical, forced, and unnatural system of construction, to be, without the intervention of the legislature, judicially repealed.

"In the first place, what, in the 142d section, or in common acceptation, is understood by the term facts?

"It certainly excludes all the ancient fictions, in which the black-lettered law and the black-lettered lawyers at one time so much delighted. Fact is the opposite of fiction. Requiring the one is rejecting the other. Besides, the statements of these facts or matters were to be sworn to; a condition only to be complied with on the supposition of truth. The people generally, and especially those who had been in the habit of serving on juries, and, I may add, a large portion of the profession itself, had become disgusted with the old system of legal falsehoods; and the code, in the particular in question, was but the expression of an almost universal public sentiment. Not satisfied with directing the written pleadings of the parties to be plain and concise,-in other words, stripping them of their prolixity and obscurity,it enacted that they should be true.

"Of what avail, however, is this provision, if parties are to be allowed, and not only allowed but required, while discarding open, admitted fictions, to deal in the far more dangerous practice of making oath to legal couclusions?

"Take the present case as an illustration. The plaintiffs in their complaint allege, and swear to the allegation, that they are the owners of a quantity of merchandise, describing the articles particularly, of the value of $640 96; that the defendants illegally and unjustly detain this property from and refuse to restore it to the plaintiffs; and that the plaintiffs therefore demand judgment of delivery and damages and costs. This complaint, all will admit, is a model of clearness and brevity; but is it true? The defendants allege that it is not; and that, on the contrary, these very goods, some time before, were sold and delivered by the plaintiffs themselves to the defendant McLachlan, and that, after disposing of a portion of them, the residue were legally and fairly taken in execution by the sheriff, the other defendant, in virtue of sundry bona fide judgments which had been recovered against McLachlan, and which are set forth in the answers.

"Thence it would seem, and so I believe it was conceded on the argument, that the plaintiffs, in swearing to their ownership of these goods, and to the alleged wrongful detention by the defendants, were merely dealing in conclusions of law; and should a jury find their statements untrue, would probably shelter themselves behind the advice of counsel.

"On the trial, an attempt will no doubt be made to show that, although it be true that the goods were sold and delivered, yet the plaintiffs were deceived by false and fraudulent representations, constituting, as they will insist, a sufficient ground in law to annul the sale and reinstate them in their original ownership. These representations, and the character of them and their effect, it is obvious, must form the real issue between the parties; and yet, in a document professing, or rather required by law, to contain a statement of the facts constituting the alleged cause of action, no allusion is made to them; and what is, if possible, more extraordinary, its authors call upon the court, in interpreting the law, to compel their adversaries to strike from their answers all those statements, of even undisputed facts, which furnish us with the only clue to the probable point in controversy.

"If there be any one thing in the code meriting commendation, any one feature which deserves to be called an improvement upon the old common law forms, it is the fair, frank, clear, intelligible, and truthful character of the written pleadings, which it prescribes for the statement and determination of judicial controversies. And were the bar and the bench harmoniously to coöperate, there would be no serious difficulty, I think, in carrying out satisfactorily this branch of the reform.

"Let it be understood that facts are to be stated, and nothing but facts-not mere evidence on the one hand, nor fictions, nor what in effect are much the same, legal conclusions, on the other-and a system of pleading will soon be matured, that will have extracted all that was good in both the common law and chancery rules, while rejecting all that was bad in either.

"I conclude, then, that the plaintiffs, instead of striking out the matters of fact set up by the defendants, should themselves have fully stated the whole case in their complaint; and that not having done so, they must now bring forward the alleged fraudulent representations, if such be in truth the foundation of their claim, in the form of a reply to the new matter stated in the defendants' answers. Motion denied.""

§ 141. [119.] Complaint.-The first pleading on the part of the plaintiff, is the complaint.

§ 142 [120.] (Amended 1851.) Complaint, what to contain.--The complaint shall contain:

1. The title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plaintiff and defendant.

2. A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition.

3. A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.

Note to subd. 1.

Where objection was taken to the entitling of the complaint, because the names of all the parties were not fully stated in the caption,-the title being Emily Hill, &c., agt. Christian L. Thacter," instead of Emily Hill by Daniel Hill, her guardian, against Christian L. Thacter,"-but it appeared that the names were given in the body of the complaint correctly; held, that the names appearing in the body of the complaint in a manner to be understood by a person of common understanding," the requirements of the code were satisfied. Hill v. Thacter, 2 Code Rep., 3, 3 Pr. R., 407

It has been said that where the action is in a court of local jurisdiction, as in the New-York common pleas, where the trial can only be had in one county (namely New-York), that the complaint would be sufficient without stating the name of the county in which the plaintiff desires the trial to be. His bringing his action in such court sufficiently indicates his desire to have the trial in the county in which the court has jurisdict on. Leopold v. Poppenheimer, 1 Code Rep., 39.

Where the complaint omits to mention the name of the county in which the trial is desired to be had, the proper course for the defendant, to take advantage of the omission, is by motion to set aside the complaint for irregularity. Hall v. Huntly, 1 Code Rep. N. S., 21 n; and after notice of such a motion the plaintiff cannot supply the omission by an amendment of course. The plaintiff cannot amend except on the terms of paying the costs of the motion 1b. and Williams v. Wilkinson, 1 Code Rep. N. S., 20.

Note to subd. 2.

Before amendment it read thus: "A statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended." We have anticipated much that applies to this subdivision in the note to section 140, to which we refer. In Law Reform Tracts, No. 1, p. 18, it is said:

"What are the "facts" to be stated in a pleading, is really a question of no difficulty, if the code be read, and fairly administered. The facts constituting the cause of action," or "constituting a defense," are the facts, to which the law is to be applied; from which the judgment of the court is to be deduced; the facts to which a party can make oath; the facts as they would be found in a special verdict (s. 260); the facts such as the court finds, when the trial is by the court (s 268); such as a referee finds, when the trial is before him (s. 272). These facts vary, with the cases as they occur, and no fixed form can be given, which will correspond with their ever-changing phases."

In Howard v. Tiffany, 1 Sand. S. C. R., 695; 1 Code Rep. N. S., 99, the court said. The rule applicable to actions for the recovery of money, real property, or the possession of personal property, which were formerly strictly legal, and in which it is sufficient to state the facts constituting the cause of action, substantially, as they were formerly stated in a declaration, could not be always applied to actions where specific relief of a different kind is demanded. Thus, where the object is to obtain an injunction, together with other relief, it will often be indispensable to set forth in the complaint, facts which need not be stated in respect of the other relief, and as much at large as was formerly done in a well-drawn bill in chancery. This necessity will be the greater, if the plaintiff seek a perpetual injunction.

In Putnam v. Putnam, 2 Code Rep., 64, it was held that a party could not insert in his complaint allegations not material to the cause of action, and which were inserted only with the view to obtain an injunction.

A complaint should state the facts of the case full enough to enable the court on proof or admission of the facts set forth to grant the relief sought. Tallman v. Green, 3 Sand S. C. R., 438.

The decisions which have been made with reference to the forms of the complaint in different actions, are as follows:

Bills, Checks and Notes.-A number of decisions have been made on the subject of the form of complaint, in au action on a bill or note. It is presumed, however,

that practitioners will now avail themselves of the provision in section 162 of this code, and that the law on the form of complaints in actions or instruments for the payment of money (which includes, it is presumed, bills of exchange, promissory notes and money bonds), will become obsolete. We give, therefore, only the names of the cases, and references where they may be found. Turner v. Comstock, I Code Rep., 102. Benson v. Couchman, Ib., 119. Beech v. Gallup, 2 1b, 68. Appleby Elkins, 2 Ib., 80. Vanderpool v. Tarbox, 7 Leg. Obs., 150. Hoxie v. Cushman, Ib., 149. Spellman v. Weider, 5 Pr. R., 5. Gay v. Paine, Ib., 107. v. B'k of Troy, Ib., 162. Peets v. Bratt, 6 Barb. S. C. R, 662.

V.

Van Namee

Where the plaintiff in an action on a check relies on facts which excuse notice of presentment and non-payment, he must state such facts in his complaint. An averment of due notice will not be sustained by evidence of facts excusing notice. Garvey v. Fowler, 4 Sand. S. C. R., 665. All the facts which constitute the cause of action must be stated in the complaint, and every fact on which the right of action depends must be deemed constitutive in the sense of the code. Ib. And therefore where the complaint on a bank check drawn by the defendant payable to the plaintiff, averred due presentment of the check at the bank and refusal of payment, and added "of which presentment, request, and refusal, the defendant had due notice," the answer duly verified denied on information and belief the averment of notice. The plaintiff moved on an affidavit that the defendant had no funds in the bank the day the check was presented, to strike out the answer as sham or frivolous. On denying the motion the court said, "The plaintiff's counsel was probably justified in saying that, according to the decisions in this State in suits upon promissory notes and bills of exchange, facts excusing the necessity of a demand and of notice although not stated in the declaration might have been given in evidence, under the averments that the demand was made and the notice given; but he was wrong in supposing that this lax and deceptive mode of pleading, which conceals from the defendant a knowledge of the facts upon which the plaintiff means to rely, is sauctioned by the code. It is one of the merits of the code, that general averments and general issues, which conveyed no information to the opposite party, and were frequently construed in a sense not only different from, but directly opposite to, that which their terms imported, are now abolished. The plaintiff must now state in his complaint, all the facts which constitute the cause of act on; and I am clearly of opinion that every fact is to be deemed constitutive, in the sense of the code, upon which the right of action depends. Every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred; and every such averment must be understood as meaning what it says, and consequently, is only to be sustained by evidence which corresponds with its meaning.

"In this present case, if notice was not in fact given to the defendants, it is upon the want of funds in the bank that the plaintiff's right of action entirely depends. It is this fact which if denied by the defendants, he will be bound to prove, and which he must therefore aver in his complaint, in order that they may admit or deny it in their answer. They have a right to say, that the averment in the complaint, as it stands, means that notice was in fact given, not that it was not given and was unnecessary. It is therefore such a notice, and not the want of funds, that they have denied."

See further, note to section 162 of this code.

Bonds. As to bonds for the payment of money only, see section 162 of this code.

In actions on bonds for the breach of any condition, other than for the payment of money, or for any penal sum, for the non-performance of any covenant or written agreement, the plaintiff is required to state in his complaint the specific breaches for which the action is brought. 2 R. S., 300, s. 6. [378, s. 5.] 7 Wend., 345. 6 Ib., 454. 4 Ib., 570. This rule has been held to apply to actions on bonds given by non-resident plaintiffs to secure defendants' costs. 5 Hill, 37. But that it did not apply to actions on bonds for payment of money by instalments. 17 Wend., 331. Nor to actions on bonds for the payment of an annuity. 3 Wend., 454. 5 Hill, 37. In an action upon a bond given on the arrest of a party upon an attachment issued for a contempt, the plaintiff should state in the complaint his connection with the attachment, and how he was aggrieved by the acts of the defendant. Raynor v. Clark, 3 Code Rep., 230.