Code Remedies: Remedies and Remedial Rights by the Civil Action According to the Reformed American Procedure; a Treatise Adapted to Use in All the States and Territories where that System Prevails

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Little, Brown,, 1904 - Actions and defenses - 983 pages

From inside the book

Contents

Where equitable remedy only is demanded and legal remedy only
36
Conclusion
39
SECTION THIRD
42
Illustrations and examples
48
SECTION FOURTH
55
Conflict in New York Phillips v Gorham Rule in Kansas
64
SECTION FIFTH
70
CHAPTER SECOND
77
Same subject
83
Equitable assignment Same rule Illustrations
89
67
91
ous and collateral agreement
96
Assignment pendente lite Substitution of assignee
102
Commercial paper Action by legal promisee
112
Special provision in New York respecting action by grantee of land
119
Recapitulation of rules established independently of the codes
129
Right of setoff may be available although once suspended
135
SECTION FOURTH
141
Section Page 142 Extreme limits to which some courts have carried doctrine as
142
Same subject New York cases
147
Other classes of trustees
153
Actions by general guardians
159
The statute in effect an enactment of the equity doctrine
163
Interpretation given by the courts of New York and Ohio
169
Recapitulation of judicial views Cases in which there is
175
Effect of misjoinder of parties plaintiff Common law
181
JOINDER OF CAUSES OF ACTION
191
Same respecting nonjoinder
194
Legal actions by joint owners of chattels At common law Under
199
joint rights
203
Legal actions by persons having joint rights arising from con tract
204
Same subject Illustrations
207
Criticism of cases holding that a joint promisee cannot be made a defendant
209
Legal actions by persons having several rights arising from con tract
210
Legal actions by persons having joint rights arising from personal torts
214
Legal actions by persons having several rights arising from per sonal torts
215
Actions in special cases
216
Actions by parents or guardians for the seduction of or injury to their children or wards
219
Actions by and between Husband and Wife 151 Common law and equity rules
221
Wife must sue alone in some States
224
Result of New York statutes
225
Actions for personal torts and for fraud and deceit
226
Actions for personal torts to wife
228
Actions for torts to wifes person in New York and States having similar statutes
230
Actions for torts to wifes property
231
Tort actions between husband and wife
232
Desertion by husband as affecting wifes capacity to sue
233
Equitable Actions 161 Grand principle underlying equity doctrine Scope of inquiry
234
Equity rules more explicit respecting defendants than plaintiffs Two classes of coplaintiffs in equity
235
Statement of fundamental principle and what it assumes Special subject of inquiry stated
237
Subordinate general principles herein Where actual plaintiff holds only equitable right or title holder of legal right or title should be made coplaintiff
238
Case of suits by assignees Change effected by codes
239
Case of suits for administration of decedents estates
240
Rule applicable to persons having legal demands arising out of same subjectmatter
241
Doctrine extends to actions relating to personal property Illustra tions
244
Section Page
246
Case of suits by executors and administrators and suits by
253
Case of creditors suits
259
Miscellaneous cases Joinder of holders of separate liens Creditors
265
SECTION SIXTH
266
Consequences of nonjoinder of defendants
273
Recapitulation of code reforms respecting misjoinder of defend
279
First Legal Actions
281
Shipowners
287
States whose codes contain provisions changing commonlaw
294
Liability in actions for tort
300
Cases where joint liability is impossible
306
Where tort is committed by wife in the use or by means of
314
Persons consequentially interested
321
Successive grantees of mortgaged premises as parties Adminis
328
Joinder of wife of mortgagor
335
Section Page 245 Assignee of judgment debtor a necessary party Where legal title is in third person and equitable ownership in debtor
341
Assignees of separate parcels of property should be joined Reason herein
342
Actions relating to the estates of deceased persons
343
Illustrations
344
When administrator is not a necessary party Illustration
345
When legatees and next of kin are neither necessary nor proper parties
346
When a different rule applies
347
Trusts Actions to enforce performance of express trusts Trus tees and survivors necessary parties
348
Joining beneficiaries Distinction between actions in opposition to and in furtherance of the trust
349
Same subject
351
Implied trustee necessary party in actions to reach property
352
Actions against corporations and stockholders and between part ners Introductory
354
Judgment creditors Stockholders
355
Corporation officers and assignee
356
Accounting by one partner against another and by surviving partner
357
Actions for specific performance Conflict of opinion herein
358
Holder of adverse claim Personal representative of deceased vendor Heirs New York and Iowa cases
359
Prior mortgagee Agent of vendor Person making redemption
361
Illustrations of action and its form
363
Case in New York
364
Actions for partition Their general purpose General creditors Holders of liens on entire tract
365
Holders of liens on undivided shares
366
Different rule where object of suit is to sell land and divide proceeds
368
Joinder of wife of tenant in common Administrator of deceased tenant in common In New York
370
In Indiana and California
371
Actions for various miscellaneous objects Partnership matters and accounting
372
Rescission and cancellation
373
Section Page 278 Same subject
374
Enforcement of liens
375
Same subject
376
Contribution
377
Actions to redeem
378
SECTION SEVENTH WHEN ONE PERSON MAY SUE OR BE SUED ON BEHALF OF ALL THE PERSONS INTERESTED 285 Statutory provision
379
Authors analysis of language of statute Two distinct cases Essential elements of each case
380
Necessary allegations herein
382
Judicial interpretation of statute Order pursued in examination of decided cases
383
Statute reenacts equity rule Must be some connection between parties represented in both cases Test
384
Applicable both to legal and equitable actions Number of parties in second case
385
Particular instances
386
Same subject
387
Nature of such action What essential on part of those not named in order to become parties
388
Equity rule Rule in Kentucky
389
Same subject
391
Necessary averments of complaint or petition
392
SECTION EIGHTH PERSONS SEVERALLY LIABLE UPON THE SAME INSTRUMENT 299 Reasons for separate treatment Two classes of statuto...
393
Two classes of statutory provisions compared and distinguished
396
Turningpoint of decisions herein Illustrations
397
Forms of contract included in statute Illustrations Form of judgment
398
Form of judgment continued Discussion by Wisconsin Supreme Court
399
Joint and several liability may be treated by promisee or obligee as several under statute herein
401
Case of guarantor and principal debtor Weight of authority
402
from other of said transactions
409
Same subject
412
Complete statement of entire cause of action would include legal
414
Authors suggestions herein
415
Authors statement of the doctrine
427
Statutory provisions applicable to all pleadings
436
Page
437
Order of proposed treatment
442
Section Page 331 Subdivisions for discussion herein
443
Section Page 445 Redundant immaterial and irrelevant allegations and the mode
445
Features common to many codes States in which these features are wanting
446
Departures from original type
449
The Forms and Modes in which a Misjoinder may occur and the Manner in which it must be objected to and corrected 336 Separate statement of diff...
450
How question of misjoinder of causes of action is raised Effect of sustaining demurrer upon this ground
451
Effect of misjoinder in some States
452
Motion by adverse party requiring correction of pleading
454
Remedy when second form of misjoinder occurs
456
Rule in few States
457
Remedy when third case of misjoinder occurs
458
Meaning of the Term Cause of Action where one Cause of Action only is stated although several Different Kinds of Relief are demanded 346 Confou...
459
Remedy Elements of every judicial action Elements constitut ing cause of action
460
Cause of action and remedial right differentiated Examples
462
The doctrine as stated by the New York Court of Appeals
504
Same subject
512
Section Page 383 Authors criticism of Calverts theory
513
Application of Calverts analysis to the language of the codes
514
Joinder of causes arising out of contract Illustrations
515
Additional illustrations
516
Causes for injuries to property Illustrations
517
Malicious prosecution and slander or libel
518
Special cases
519
Illustrations from Indiana and California
520
Cause of action upon contract cannot be joined with one to re cover damages for a tort Illustrations Authors criticism
521
Illustrations
522
Cause of action against one in personal character cannot be united with one against him in representative character Reason Authors criticism Illustrati...
523
Some unclassified cases Authors criticism
525
Grouping of actions for injuries to the person in some States Illustrations
526
Holding of Wisconsin court in action to quiet title
527
The equity system of pleading
528
The commonlaw system of pleading Introductory
531
Technicality of the system
532
Essential principles and elements of commonlaw pleading
533
Same subject
534
History of the action of assumpsit
536
Outline of proposed discussion of reformed procedure
539
The theory generally adopted
541
Manner of averring material facts
542
The term cause of action
547
True signification of the term
548
rules and rights and duties
549
The doctrine as applied to equitable suits
557
Same subject
572
Case of Booth v Farmers and Mechanics Bank N Y
580
Use sanctioned also where obligation is express
586
Insufficient imperfect incomplete or informal allegations
595
Section Page 602 Statutory provisions Two groups Special provisions of Indiana
602
of objecting to and correcting them Distinctions
609
Motion not demurrer proper method of objecting to superfluous allegations
611
The doctrine that the cause of action proved must correspond with the one alleged Degrees of variance between allegations and proof
613
Consequences of different degrees of variance
614
Instances where variance has been held immaterial
616
Instances of complete failure of proof
620
Examples of fatal disagreement between cause of action pleaded and proved
621
Variance fatal where cause of action in tort alleged and one in contract proved
623
How nature of cause of action is determined Illustrations of causes ex contractu
627
Illustrations of causes ex delicto
629
Further examples of variance where tort is alleged and contract proved
630
Amendments allowed by the code
632
Conflict of authority on right to amend by substituting different cause of action
634
Election between actions ex delicto and actions ex contractu
638
New procedure makes no change in doctrine of election
646
Classes of cases where election is allowed Conversion Conflict of authority
648
Actions against common carriers for loss or injury to goods Other cases
650
Principle which determines when a promise is implied
651
Method of indicating election Averment of promise as a test
652
No difficulty where promise is express Summons suggested as means of indicating election in case of implied promise
653
SECTION FOURTH THE FORM OF THE COMPLAINT OR PETITION 465 Introductory
656
Separate statement of different causes of action Inducement and prayer need not be repeated
657
596
659
Effect of demurring to entire complaint when made up of several counts Joint demurrers by two or more defendants
660
Admission by failure to deny
662
Defective complaint aided by averments in answer
663
Prayer for relief
665
600
670
The Defensive SubjectMatter of the Action The Formal Presentation of
691
Statutes providing for setoff
698
Same subject
702
Liberality of the codes in furtherance of justice
704
Conflict of decisions
714
Case of Simmons v Sisson
720
Partial defences should be pleaded as such
726
Section THE DEFENCE OF DENIAL Page 501 Species of denial
728
Outline of proposed treatment
729
Issuable facts as distinguished from evidentiary facts and from conclusions
731
Illustrative case
733
Allegations admitted by failure to deny
734
Negatives pregnant How they may arise
737
Illustrations
738
Illustrations
739
Conflict of authority as to whether a negative pregnant raises an issue
741
The better doctrine
742
Pleading new matter equivalent to a denial
743
Remedy for such a denial is by motion under the codes
744
Where answer contains general denial and also a special defence of new matter equivalent to general denial
745
Combination of general and argumentative denials
746
Practice in Indiana in respect to argumentative denials
747
General denials of all allegations not otherwise admitted or re ferred to
748
Proper distinction to be observed between general and specific denials
749
Difficulty arising from this form of answer
750
Facts not conclusions of law should be denied
752
Illustrations
754
Denials of knowledge or information Formula prescribed by statute should be followed
755
When a denial of knowledge or information is not allowed
757
Outline of proposed treatment of issues raised by denials
759
The general denial McKyring v Bull
760
Further illustrations
761
Necessity of reply depends upon nature of defence
763
Same subject
764
Only issuable facts are material Test to distinguish them from
770
Particular defences admissible under the general denial
776
In actions in which malice is an essential ingredient
782
Introductory
788
New matter as confession and avoidance
794
Defences in mitigation of damages Commonlaw theory
795
Some Particular Defences of New Matter Classified and Arranged
801
Actions upon contract
809
Miscellaneous defences
815
SECTION FIFTH
823
What Kinds of Defences may be joined in one Answer those in Abatement
829
and Iowa codes Similarity of code provisions
835
Arrangement of subjectmatter for discussion
837
Counterclaim to be compared with crossdemands of former system
838
Discussion of New York statute of setoff
840
Origin of setoff and recoupment Resemblances and dissimilarities
841
Illustrations of recoupment
842
Mere defences distinguished from setoff or recoupment counter claim or crossdemand
844
A General Description of the CounterClaim its Nature Objects and Uses 610 Scope of inquiry herein
845
One class of cases included in term setoff under former procedure not included in counterclaim Mere defence not a counterclaim
846
Counterclaim broader than setoff and recoupment Kinds of causes of action that may be interposed as counterclaims
847
Essential elements and test of counterclaim Must be a cause of action
849
Implies an opposing claim Limitation herein
851
Cause of action alleged must exist in favor of defendant who pleads it Exception hereto in codes of Indiana and Iowa
852
Cause of action must exist against the plaintiff
853
Illustrative opinions
855
Doctrine that counterclaim must be antagonistic to and tend to defeat lessen or modify the claim of plaintiff
856
Application of doctrine Limitation established by New York courts Purely judicial Criticism
859
Decisions in other States
860
Cause of limitation upon counterclaims
862
How plead counterclaim Characteristic marks Reason herein
863
The Parties in their Relations with the CounterClaim 625 Relations of defendant to counterclaim Must be a demand in favor of defendant who pleads ...
868
Rule not confined to sureties Other instances
870
Section Page
871
Several judgment between some of the parties Inquiry presented
878
Counterclaim may fail for want of necessary parties especially
884
Is counterclaim possible in action to recover possession of chattels ?
890
Case of Scheunert v Kaehler Criticism
896
Section Page
900
The phrase connected with Connection must be immediate
906
Classification and arrangement of cases to be cited
912
Same subject
919
Construction of the phrases subject of the action connected
925
CounterClaims Embraced within the Second Subdivision of the Statutory
928
Same subject
931
A judgment against
934
Form of verdict finding and judgment
940

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Common terms and phrases

Popular passages

Page 150 - ... Every action must be prosecuted in the name of the real party in interest, except that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A person with whom or in whose name a contract is made for the benefit of another is a trustee of an express trust, within the meaning of this section.
Page 85 - The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights ; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in.
Page 170 - All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this article.
Page 83 - Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one,' who should have been joined as plaintiff, cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint...
Page 7 - The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and, there shall be in this State hereafter, but one form of action, for the enforcement or protection of private rights and the redress or prevention of private wrongs, which shall be denominated a civil action.
Page 301 - Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff...
Page 83 - ... when the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.
Page 443 - The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.
Page 407 - ... notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount of the debt, or delivering the property or its value to such person as the Court may direct ; and the court may, in its discretion, make the order.
Page 443 - The court may, before, or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect...

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