ORDERS AND RULES

MADE BY THE JUDGES OF THE SUPERIOR COURT,

UNDER THE PROVISIONS OF

THE THIRTY-THIRD SECTION OF THE

PRACTICE ACT.

At the annual meeting of the Judges of the Superior Court, held at Hartford, on the twenty-fourth day of June, 1879, and, by adjournment, on the twentieth day of September, 1879, it was

ORDERED, that the following Rules and Forms of Procedure be adopted for the purpose of giving due effect to the provisions of an Act entitled "An Act to simplify Procedure in Civil Causes, and to unite Legal and Equitable Remedies in the same Action," approved March 28th, 1879; said Rules and Forms to become of force on the first day of January, 1880.

ORDERED, that said Act may be referred to and cited by the name of the "Practice Act."

Certified by

JOHN D. PARK, Chief Justice.

tives of

SECTION 1. In suits on a joint contract, whether partnership Representaor otherwise, the personal representatives of a deceased co-contract- decedent. or may join, as plaintiffs, and be joined, as defendants, with the survivor; provided that, where the estate of the decedent is in settlement in this State, as an insolvent estate, his personal representatives cannot be joined, as defendants.

SEC. 2. Persons severally and immediately liable on the same Parties severally liable obligation or instrument, including parties to bills of exchange on same obligation. and promissory notes, and indorsers, guarantors, and sureties, whether on the same or by a separate instrument, may all, or any of them, be joined as defendants, and a joint judgment may be rendered against those so joined. But where the cause of action against one person is not complete until after suit against another, such persons cannot be joined as defendants.

relief

SEC. 3. Persons may be joined as defendants, against whom the Alternative right to relief is alleged to exist in the alternative, although a sought. right to relief against one may be inconsistent with a right to relief against the other.

express

SEC. 4. The term "trustee of an express trust" in Section 14 Trustee of of the Practice Act shall be construed to include any person with trust. whom, or in whose name, a contract is made for the benefit of another.

SEC. 5. If a part interest in a contract obligation be assigned, Assignee of part interthe assignor (retaining the remaining interest), and assignee may est. join as plaintiffs.

ment

suit.

SEC. 6. If, pending the action, the plaintiff assign the cause of Assignaction, the assignee, on his written application, may either be joined pending as a co-plaintiff, or substituted as a sole plaintiff, as the Court may order; provided the same shall in no manner prejudice the defense to the action, as it stood before such change of parties.

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Judgment without sat

RULES UNDER THE PRACTICE ACT.

SEC. 7. Where the plaintiff may, at his option, join several as isfaction defendants, or sue them separately, judgment without satisfaction against one shall not bar a suit against another.

against one.

Costs.

SEC. 8. In all cases where there are several defendants, the Court may make such order as it may deem just, to prevent any defendant from being embarrassed, or put to expense, by being required to attend to any proceedings in the action in which he may have no interest; and no costs shall be taxed against any defendant with which he is not justly chargeable.

Common counts.

ticulars.

II.

Complaints.

SECTION. 1. The form of complaint hereinafter provided, and denominated "The common counts," may be used for the commencement of an action, when any of these counts is an appropriate genBill of par- eral statement of the cause of action; but the defendant shall not be required to plead, nor shall any default be taken, until the plaintiff has filed a proper bill of particulars, or such further statement by way either of a substituted complaint, or of amendment, as may be necessary to show his cause of action as fully as is required in other cases; and such statement, where the demand is founded on an express contract, whether executory or executed, shall set forth the terms of the contract. Where a bill of particulars only is filed, all the counts not applicable thereto shall be struck out by amendment.

Waiving the SEC. 2. Where the defendant has wrongfully sold personal tort, on a conversion. property of the plaintiff, the latter may waive the tort, affirm the sale, and sue for the proceeds. But in the case of a wrongful conversion of property, without a sale, the plaintiff cannot waive the tort and declare as on a contract.

Sales: variance.

Separate counts.

SEC. 3. In an action for goods sold at a reasonable price, if the proof is that they were sold at an agreed price, the plaintiff shall not be precluded, on the ground of a variance, from recovering such agreed price, and in an action for goods sold at an agreed price, he may recover a different or a reasonable price, if the proof fail to establish the price alleged; and the like rule shall prevail in actions for work done, or materials furnished.

SEC. 4. Where separate and distinct causes of action (as distinguished from separate and distinct claims for relief, founded on

RULES UNDER THE PRACTICE ACT.

the same cause of action or transaction), are joined, the statement of the second shall be prefaced by the words Second Count, and so on, for the others; and the several paragraphs of each count shall be numbered separately, beginning in each count with the number.

one.

character.

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SEC. 5. Injuries to character, within the meaning of Section 7 Injuries to of the Act, may embrace libel, slander, and malicious prosecution. SEC. 6. In a complaint of replevin no other cause of action shall Replevin be joined.

ous torts of

kinds.

SEC. 7. Where several torts are committed simultaneously, Simultaneagainst the plaintiff (as a battery accompanied by slanderous words), different they may be joined, as causes of action arising out of the same transaction, notwithstanding they may belong to different classes of torts.

on one con

SEC. 8. A cause of action for legal relief for breach of contract Legal relief may be joined with another cause of action for equitable relief, tract, and growing out of another contract, although such contracts are in no relief on anway related to each other.

equitable

other.

relief.

SEC. 9. The plaintiff may claim alternative relief, based upon Alterna tive an alternative construction of his cause of action.

relief:

Court.

SEC. 10. All matters heretofore within the jurisdiction of a Equitable Court of Equity, whether directly or as incident to other matters trial to the before it, may be heard and decided by the Court without a jury, in the manner heretofore practiced in Courts of Equity; but a party seeking equitable relief shall specifically demand it, as such, unless the nature of the demand itself indicates that the relief sought is equitable relief.

SEC. 11. In a complaint demanding specific equitable relief, and Claims for damages as also damages, as equitable relief, incident thereto, (as for the incidental to equitable reformation of a policy of insurance, and the payment of a loss relief. under the same, as reformed,) if the plaintiff fail to make out a case for specific relief, the defendant shall have a reasonable opportunity to have the claim for damages tried to the jury.

SEC. 12. If in a complaint on a penal bond the condition is Penal bond. not noticed, the plaintiff shall file, at the first opening of the Court to which his writ is returnable, an amendment to the complaint, referring to the condition, and specifying the breaches on which he relies.

hibits.

SEC. 13. Where the plaintiff desires to make a copy of any Copies: exdocument a part of his complaint, he may, without reciting or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if he had

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Costs.

RULES UNDER THE PRACTICE ACT.

set it out at length; but, in such case, shall file such exhibit or exhibits on the first opening of the Court to which the writ is returnable. Where such copy or copies exceed, in all, two pages in length, if the plaintiff annexes them to, or incorporates them in his complaint, at full length, he shall not be allowed in his costs for such part of the fees of the officer for copies of such complaint lest in service, as are chargeable for copying such instrument or instruments, except to the extent of two pages.

Pleading

according to the legal effect.

Items of an account, etc.

Interest:
Costs.

Profert.

Implied duty.

Variance: amendment:

costs.

III.

General Rules of Pleading.

SECTION 1. Acts and contracts may be stated according to their legal effect, but in so doing the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove. Thus an act or promise by a principal (other than a corporation), if in fact proceeding from an agent known to the pleader, should be so stated; and the obligation of a husband to pay for necessaries furnished to his wife, whom he has driven from his house, should be stated according to the facts.

SEC. 2. It shall not be necessary for a party to set forth in any pleading the items of an account therein alleged, or to describe the particular articles of any quantity of goods [as, for instance, the stock of merchandise in a certain store, or the furniture in a certain house], as to which a conversion, asportation, lien, or other matter is alleged; but in such case a particular description of the various items or articles shall, unless the court otherwise order, be filed before any default is taken, or the adverse party required to

answer.

SEC. 3. Interest and costs need not be specifically claimed in the demand for relief, in order to recover them.

SEC. 4. No formal profert need be made in any pleading.

SEC. 5. It is unnecessary to allege any promise or duty which the law implies from the facts pleaded.

SEC. 6. In all cases of any material variance between allegation and proof, an amendment shall be permitted at any stage of the trial. If such allegation was made without reasonable excuse, or if the adverse party was actually misled thereby to his prejudice, in maintaining his action or defense upon the merits, and this is shown to the satisfaction of the court, such amendment shall be