I.

JOINDER OF PARTIES.

Section 1. In suits on a joint contract, whether partnership or otherwise, the personal representatives of a deceased co-contractor 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 obligation or instrument, including parties to bills of exchange 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.

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

Sec. 4. The term "trustee of an express trust," in section 886 of the General Statutes, shall be construed to include any person with 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, the assignor (retaining the remaining interest) and assignee may join as plaintiffs.

Sec. 6. If, pending the action, the plaintiff

assign the cause of action, the assignee, on his written application, may either be joined 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.

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

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.

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 general 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.

Sec. 2. Where the defendant has wrongfully sold personal 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.

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 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.

Sec. 5. "Injuries to character," within the meaning of section 878 of the General Statutes, may embrace libel, slander, and malicious prosecution.

Sec. 6. In a complaint of replevin no other cause of action shall be joined.

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

Sec. 8. A cause of action for legal relief for breach of contract may be joined with another cause of action for equitable relief growing out of another contract, although such contracts are in no way related to each other.

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

Sec. 10. All matters heretofore within the jurisdiction of a court of equity, whether directly or as incident to other matters 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 also damages, as equitable relief incident thereto, (as for the reformation of a policy of insurance and the payment of a loss 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 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.

Sec. 13. Where the plaintiff desires to make a copy of any document 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 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 left in service as are chargeable for copying such instrument or instruments, except to the extent of two pages.

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 husb nd 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 plealing 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 made only upon payment of costs, and such other terms as the court may deem proper; but in any other case without costs. Immaterial variances shall be wholly disregarded.

Sec. 7. Transactions connected with the same subject of action may include any transactions which grow out of the subject-matter in regard to which the controversy has arisen, as, for instance, the failure of a bailee to use the goods bailed for the purpose agreed, and also an injury to them by his fault or neglect; the breach of a covenant for quiet enjoyment by the entry of the lessor, and also a trespass to goods committed in the course of the entry.

Sec. 8. Supplemental pleadings, showing matters arising since the original pleading, may be filed by either party; and cross-complaints, of the nature of cross-bills in equity, touching matters in question in the original complaint, may be filed by the defendant in any action, whether such action be for legal or equitable relief, and additional parties summoned in to answer the same, if necessary.

Sec. 9. The court may order any pleading to be stricken out which discloses no reasonable ground of action or defense.

Sec. 10. Proof of allegations of facts wholly immaterial to the right claimed by the pleadings will, on objection, be excluded.

IV.

PLEADINGS SUBSEQUENT TO THE COMPLAINT.

But

Section 1. In every civil action in the superior court, court of common pleas, and district court, the defendant, if he does not plead in abatement, shall answer or demur within thirty days from the return-day of the writ, and thereafter the pleadings in the action shall advance at least one step, at the expiration of each successive period of twenty days, until the same shall be closed. this rule shall not be applied to causes which are continued on account of the absence of the defendant from the state, nor during July and August; nor shall it be construed to prevent the court from varying the progress of the pleadings in any cause on motion. The bill of particulars, substituted complaint, or amendment, provided for by rule II., § 1, and rule III., § 2, must be filed in each of said courts within 10 days after the return-day of the writ, unless otherwise ordered by the court; and the thirty days within which the adverse party is required to plead shall run from the day when the same is filed; but in actions before justices of the peace such bill of particulars, substituted complaint, or amendment must be filed at or before the hour named in the writ for the appearance of the defendant, unless it be otherwise agreed by the parties or ordered by the court. If any party fail to plead, agreeably to this rule or the order of the court, he shall recover no

costs for the time during which he remains in default, even if he eventually obtain judgment, and the court may, on motion of the other party, order a nonsuit, default, or judgment on a cross-complaint, counter-claim, or set-off, as the case may be.

Sec. 2. All pleas shall be filed with and kept by the clerk of the court, who shall indorse upon each plea the time when it is filed, and make a like entry on his docket. It shall be the duty of the party to see that the proper indorsement and entry are made at the time of filing his plea.

Sec. 3. When any pleading is amended, the adverse party shall answer or reply, or, if he has already pleaded, alter his plea if he so desires, within ten days after such amendment, or such other time as these rules or the court may prescribe.

Sec. 4. Every material allegation in any pleading which is not denied by the adverse party shall be deemed to be admitted, unless he avers that he has not any knowledge or information thereof sufficient to form a be

lief.

Sec. 5. Pleading a general denial, when there is any material allegation in the complaint which the defendant either knew was true, or did not believe to be untrue, shall subject the party to the payments provided for in section 882 of the General Statutes. Counsel fees, taxable under said section, shall not be less than five dollars.

Sec. 6. No facts can be proved, under either a general or special denial, except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements, but show, notwithstanding, that he has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitrament and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment, release, and the statute of limitations, must be specially pleaded; while advantage may be taken, under a simple denial, of such defenses as contributory negligence, the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be his

own.

Sec. 7. Denials must fairly meet the substance of the allegation denied. Thus, when the payment of a certain sum is alleged, and in fact a less sum was paid, the defendant cannot simply deny the payment generally, but must set forth how much was paid to him; and where any matter of fact is alleged with divers circumstances, some of which are untruly stated, it shall not be sufficient to deny it as alleged, but so much as is true and material should be stated or admitted, and the rest only denied.

Sec. 8. Where several matters of defense are pleaded, each must be pleaded separately, and must refer to the cause of action which it is intended to answer. Where the complaint is for more than one cause of action, set forth in several counts, each separate

matter of defense should be preceded by a designation of the cause of action which it is designed to meet, in this manner: "First defense to first count;" "Second defense to first count;" "First defense to second count;" and so on. Any statement of a matter of defense resting in part upon facts pleaded in any preceding statement in the same answer may refer to those facts as thus recited without otherwise repeating them.

Sec. 9. A reply may contain two or more distinct avoidances of the same defense or counter-claim; but they must be separately stated and numbered.

Sec. 10. Pleas in abatement, demurrers, answers, and replies may be to the whole or to a part only of the pleading of the adverse party, but when they apply only to a part thereof it must be so stated, and such part clearly indicated.

Sec. 11. Where any relief demanded by the plaintiff cannot properly be demanded upon the allegations of the complaint, although these may be sufficient to call for some other relief, the defendant may demur to the relief so improperly demanded.

Sec. 12. No issue need be joined on a demurrer, nor need any pleadings be formally closed either to the court or to the jury, but the denial of any material allegation shall constitute an issue of fact.

Sec. 13. Any exception for misjoinder of causes of action, whether in the same or separate counts, must be taken by demurrer, and if not so taken will be deemed to be waived, and cannot constitute any cause for a new trial or proceedings in error.

V.

COUNTER-CLAIMS AND CROSS-COMPLAINTS. Section 1. Counter-claims for equitable relief, of the nature of cross-bills in equity, may be pleaded by themselves, and may be known as "Cross-Complaints."

Sec. 2. Where a co-defendant is made a party defendant to a cross-complaint or counter-claim, a copy thereof shall be delivered to him or his attorney within ten days after the same is filed.

Sec. 3. The withdrawal of an action, after a cross-complaint or counter-claim, whether for legal or equitable relief, has been filed therein, shall not impair the right of the defendant to prosecute such cross-complaint or counter-claim as fully as if such action had not been withdrawn.

Sec. 4. If in a suit pending before any court having a limited pecuniary jurisdiction a cross-complaint or counter-claim is legally filed for an amount exceeding the limit of the jurisdiction of the court, the same proceedings may be had as are provided in the case of pleas by section 1018 of the General Statutes.

Sec. 5. No costs shall be taxed in favor of a defendant recovering judgment on a counter-claim or set-off which accrued before the same was filed or pleaded.

VI.

AMENDMENTS.

Section 1. Complaints for breach of contract may be amended so as to set forth, instead, a cause of action founded on a tort, arising from the same transaction or subject of action; and complaints founded on a tort may be amended so as to set forth, instead, a cause of action for a breach of contract arising out of the same transaction or subject of action.

Sec. 2. If, on the trial, whether upon an issue of fact or of law, of a cause wherein equitable relief is demanded, it appears that the plaintiff is not entitled to such relief, but may be entitled to legal relief, the court may permit the complaint to be amended so as to present a proper case for the latter relief; and in like manner a complaint demanding legal relief may be so amended as to entitle the plaintiff to equitable relief.

Sec. 3. If any complaint be so amended as to call for legal relief, instead of equitable, the court shall not proceed to judgment until the defendant has had a reasonable opportunity to put the issue or issues on which the new claim for relief may be based on the jury docket.

Sec. 4. In all actions not brought before justices of the peace the complaint may be amended, without costs, during the first thirty days after the return-day of the writ; but, after such time, only on payment of costs, unless the court otherwise direct.

VII.

MOTIONS AND NOTICES.

Section 1. All interlocutory orders which may be made by the court, under the statutes, may be applied for orally, by motion, except where it is otherwise expressly provided.

Sec. 2. Where the pleadings do not fully disclose the ground of claim or defense, and the adverse party desires an order for fuller and more particular statements, he shall make his motion therefor in writing, and the form and manner of proceeding thereon shall be similar to those prescribed as to motions to expunge in section 882 of the General Statutes.

Sec. 3. Any application to cite in or admit new parties must be in writing, and state briefly the grounds upon which it is made.

Sec. 4. Service of copies of any written motions, required by the act, may be made by any indifferent person.

Sec. 5. The "reasonable notice" required by section 894 of the General Statutes may be any notice, whether written or oral, which the judge to whom the application is made may deem and find to be reasonable, under the particular circumstances of the case; but in ordinary cases written notice should be given, signed by the defendant or his attor

ney.