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modes of meeting the adversary's allegations is continued to each party, until the pleadings terminate in an issue of law or an issue of fact. An issue precludes the allegation of further new matter on either side, and thus regularly closes the pleadings. The whole controversy is, by the issue, reduced to some one point of law or of fact. The question on which the contest depends is now distinctly presented by the issue. If the issue be taken on a matter of law, it is to be decided, after argument, by the court. If the issue be taken on a matter of fact, it is generally determined by a jury. The issue being decided, judgment must follow in favor of the party entitled to it. All pleading is a logical process. The object of the process is to facilitate the administration of justice, by simplifying the grounds of the controversy, and ultimately to narrow the contest to a single affirmative and negative.

7. Matters of fact must always be expressly alleged. The facts on which the complaint or answer is founded, are supposed to be unknown to the judges. The conclusion must also be expressed by a demand or prayer for judgment. It does not appear from the facts stated what the party proposes to claim from the facts. He can derive no advantage from the facts which he does not claim by his pleadings. The first proposition in the syllogism, which is the rule of law, is not expressed in the pleadings in any form. The judges are presumed to know judicially what the law on any given state of facts is. An issue of law is said to be an admission of the facts, but a denial of the legal effect of the facts claimed. New matter is in the language of the law denominated matter of avoidance,

clude? To what is the whole controversy by the issue reduced? What is distinctly presented by the issue? If the issue be taken on a matter of law, by whom is it to be decided? If the issue be taken on a matter of fact? The issue being decided, what follows? What process is all pleading? What is the object of the process?

7. What must be expressly alleged? Are the facts supposed to be known by the judges? How is it also necessary to express the conclusion? What does not appear from the facts stated? What are the only advantages to be derived from the facts? Is the first proposition in a syllogism expressed in the pleadings? What are the judges presumed

which avoids the consequences which would otherwise result from the premises. New matter advanced by either party must form a sufficient answer in law to the allegation of the opposite party, and also fortify the party pleading new matter, in what he has before pleaded. The plaintiff must prevail, if at all, on the facts stated in his complaint. Whatever the parties may allege in their subsequent pleadings, must go to fortify the complaint on one side and the answer on the other. If it were otherwise, the foundation of the action and of the defence might be entirely changed in each successive pleading.

8. An important requisite in all pleading is certainty. In declaring on a contract, the plaintiff is not bound to allege that the defendant, at the time of contracting, was competent to contract; nor that the contract was not obtained by fraud; or to introduce any other special matter, which is to be alleged and proved on the other side to defeat the action. If any such matters of fact exist, they are matters of defence to be pleaded and proved by the defendant. It is necessary to allege that the defendant has not paid, or that the agreement has not been performed; for without such allegation, there is no breach of the contract, and no right of action will appear in the complaint. The certainty required in pleading relates-1. To the parties; 2. To the time; 3. To the place; 4. To the subjectmatter. The parties should be described by their Christian and surname, for the purpose of identification. If two or more persons be partners, the full name of each

to know? What is an issue of law said to be? What is new matter in the language of the law denominated? What must the new matter advanced by either party answer, and what must it fortify? On what must the plaintiff prevail, if at all? What must all subsequent allegations in the pleadings go to justify? If it were otherwise, what would be the effect?

8. What is an important requisite in all pleading? In declaring on a contract, what is the plaintiff not bound to allege? If any such matters of fact exist, by whom are they to be pleaded and proved? What is necessary to be alleged? What would not appear in the complaint, without such allegation? To what does the certainty required in pleadings relate? How must the parties be described? If two or more persons

should be stated. They cannot sue and be sued by their firm-name. A corporation may sue and be sued by its corporate name. When the time is immaterial, the party is not confined in his allegations to the true time, nor in his proof to the time alleged. He is not bound, in such case, to show the precise day on which the alleged fact took place. When the day is not material in evidence, it is not material in the pleadings. It is necessary, in point of form, to allege a day for the occurrence of every traversable fact, whether the day is material or immaterial. The cause of action must always appear by the plaintiff's complaint to have occurred before the commencement of the action. The precise day on which a material fact alleged in the pleadings took place, is generally immaterial. In the date of a record, however, or other writing, or date of some other fact, the time of which must be proved by a written document, the time is material. If a tort is stated to have been committed on a particular day, the plaintiff is not confined in his proof to the time alleged. He may support the allegation by proving that the tort was committed on another day; but the day alleged in the complaint, and that proved on the trial, must both be prior to the commencement of the action. If time enters into the terms of the contract, the true time must be stated. In pleading any written instrument, the day on which it is alleged to bear date is material, and must be correctly stated; otherwise there will be a variance between the writing itself, and the description of the writing in the pleadings.

are partners? Can they sue and be sued in their firm-name? How must a corporation sue? If the time is immaterial? What is he not bound, in such case, to show? If the day is not material in evidence? What is necessary in point of form to allege? When must the cause of action appear in the complaint to have occurred? What is generally immaterial? If the time be the date of a record or other writing, the date of which must be proved? If a tort is stated to have been committed on a particular day? By what proof may he support his allegation? Prior to what must both the time alleged and the time proved be? If the time enters into the terms of the contract? In pleading any written instrument, what is material? How must it be stated? If otherwise, what will be the effect?

9. The place of every traversable fact stated in the pleadings must be distinctly alleged. This is done by designating the town and county in which the fact is alleged to have occurred. Where the place is material, it must be proved as alleged. In local actions, the place is material, and must be stated according to the fact. A local action is one that must be tried in the county in which the cause of action actually arose. All actions in which the thing to be recovered is in its nature local, are local actions. In this class is included all real actions, waste, ejectment, and replevin. If the place be misstated, the plaintiff will be liable to a nonsuit, because the place enters into a description of the action. All criminal proceedings are local. All offences are considered as public wrongs. A public offence must be alleged to have been committed in the county where such offence was actually committed, and in no other. If the proof does not show that the offence was committed as alleged, the verdict must be, not guilty. All facts essential to the right of action or defence must be expressly and substantially alleged. Each party tacitly admits the allegations of the opposite party, which he does not deny in some form. The omission to deny, is justly considered as an admission of the fact. What has been admitted by both parties, cannot be denied. Neither party can retract what he has conceded in his pleadings; and the jury have no authority to find any facts, except those at issue. It is incumbent on each party, in stating the grounds of his action or defence, to state them fully and

9. When must the place be distinctly alleged? How is this done? If the place is material? In what actions is the place material? What is a local action? What may be included in this class? If the place be misstated? Are criminal actions local? How are offences considered? Where must a public offence be alleged to have been committed? If the proof does not show that the offence was committed as alleged? What facts must be expressly and substantially stated? What does each party tacitly admit? How is the omission to deny justly considered? If admissions have been made by both parties? What can neither party retract? What have the jury no authority to do? What is incumbent on each party, in stating the grounds of his action or de

clearly. A pleading should be according to its legal effect. When a bill of exchange is payable, in its terms, to the order of a fictitious payee, the holder, in an action upon it, must describe it as payable to bearer. When the form and legal effect differ, the party may, at his option, instead of stating the legal effect, recite the instrument in his pleadings, word for word, and refer its legal operation to the court.

CHAPTER LXXXII.

ACTIONS.

1. AN action is a judicial proceeding which, if conducted to its final determination, will result in a judg ment. A judgment is the final determination of the rights of the parties in the action. A special proceeding is one which does not terminate in a judgment. Actions are civil or criminal. A criminal action is prosecuted by the people of the State or nation, as a party, against a person charged with an offence against the State or nation. Every other is a civil action. When the same wrong act exposes a person to a civil action and to a criminal action, the prosecution of one action does not release him from liability on the other. If one person assaults and beats another, the State may maintain a criminal action against such person for the public offence; and the person injured may maintain an action for personal injury. The prosecution of one action does not affect the right to prosecute the other.

fence? How should a pleading be made? If a bill of exchange is pay able, in its terms, to the order of a fictitious person? When the form and legal effect differ, what may the party do?

1. What is an action? What is a judgment? What is a special proceeding? Into what two classes are actions divided? What is a criminal action? What is every other action? If the same act exposes a person to a civil and a criminal action, does the prosecution of one affect the

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