and operation of this principle, and how much effect it actually produces in the judicial process of construing pleadings, can best be seen by an examination of the decisions in which it has been invoked. A few of them have therefore been selected, and placed in the foot-note.1 In a very small number of cases, however, the courts seem to have overlooked this change made by the statute, and have expressly declared that the construction must be adverse to the pleader, thus recognizing the ancient rule as still in force;2 while in some others the judicial action was clearly based upon that old doctrine, although it was not formally announced in the opinions.3 Under the light of this beneficent but new principle, that pleadings are to be construed fairly, equitably, and liberally, with a view to promote the ends of justice, and not enforce any arbitrary and technical dogmas, I shall proceed to consider, in the order already indicated, the several practical rules mentioned above, which regulate the manner of setting forth the cause of action or the defence. § 548. I. Insufficient, imperfect, incomplete, or informal allegations; the mode of objecting to and correcting them. The codes clearly intend to draw a broad line of distinction between an entire failure to state any cause of action or defence, on the one side, which is to be taken advantage of either by the general demurrer for want of sufficient facts, or by the exclusion of all evidence at the trial, and the statement of a cause of action or a defence in an insufficient, imperfect, incomplete, or informal manner, which is to be corrected by a motion to render the pleading more definite and certain by amendment. The courts have, in the main, endeavored to preserve this distinction, but not always with success; since averments have sometimes been treated as merely incomplete, and the pleadings containing them have been sustained on demurrer, which appeared to state no cause of action or defence whatever; while, in other instances, pleadings have been pronounced wholly defective and therefore bad on demurrer, or incapable of admitting any evidence, the allegations of which 1 McGlasson v. Bradford, 7 Bush, 250, 220, 224; Wright v. McCormick, 67 N. C. 252; Joubert v. Carli, 26 Wisc. 594; Clay 27. v. Edgerton, 19 Ohio St. 549, supra, § 535; Gunn . Madigan, 28 Wisc. 158, 164; Robson v. Comstock, 8 Wisc. 372, 374, 375; Morse v. Gilman, 16 Wisc. 504. 2 Commonwealth v. Cook, 8 Bush, 3 For examples, see Hathaway . Quinby, 1 N. Y. S. C. 386; Doyle ". Phoenix Ins. Co., 44 Cal. 264; Scofield v. Whitelegge, 49 N. Y. 259, 261; Holmes v. Williams, 16 Minn. 164, 168. appear to have been simply imperfect or incomplete. It is undoubtedly difficult to discriminate between these two conditions of partial and of total failure; and it is utterly impossible to frame any accurate general formula which shall define or describe the insufficiency, incompleteness, or imperfectness of averment intended by the codes, and shall embrace all the possible instances within its terms. By a comparison of the decided cases, some notion, however, may be obtained of the distinction, recognized if not definitely established by the courts, between the absolute deficiency which renders a pleading bad on demurrer or at the trial, and the incompleteness or imperfection of allegation which exposes it to amendment by motion; and in this manner alone can any light be thrown upon the nature of the insufficiency which is the subject of the present inquiry. § 549. The true doctrine to be gathered from all the cases is, that if the substantial facts which constitute a cause of action are stated in a complaint or petition, or can be inferred by reasonaable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete, and defective, such insufficiency pertaining, however, to the form rather than to the substance, the proper mode of correction is not by demurrer, nor by excluding evidence at the trial, but by a motion before the trial to make the averments more definite and certain by amendment.1 From the citations in the foot-note, it is 1 People v. Ryder, 12 N. Y. 433; Prindle v. Caruthers, 15 N. Y. 425; Flanders v. Me Vickar, 7 Wisc. 372, 377; Robson v. Comstock, 8 Wisc. 372, 374, 375; Kuehn v. Wilson, 13 Wisc. 104, 107, 108; Morse v. Gilman, 16 Wisc. 504, 507; Kimball v. Darling, 32 Wisc. 675, 684; Reeve v. Fraker, 32 Wisc. 243; Hazleton v. Union Bank, 32 Wisc. 34, 42, 43; Horn v. Ludington, 28 Wisc. 81, 83 (a motion made and granted, -a good illustration of defective allegations added to); Clay v. Edgerton, 19 Ohio St. 549; Winter v. Winter, 8 Nev. 129 (statement of a material fact by way of recital); Saulsbury v. Alexander, 50 Mo. 142, 144; Corpenny v. Sedalia, 57 Mo. 88 (a motion in arrest of judgment not proper when a cause of action is stated however defectively); Pomeroy v. Benton, 57 Mo. 531, 550; Hale v. Omaha Nat. Bank, 49 N. Y. 626, 630; Barthol v. Blakin, 34 Iowa, 452; Russell v. Mixer, 42 Cal. 475; Slattery v. Hall, 43 Cal. 191 (objection that a complaint is ambiguous cannot be raised under a general demurrer); Blasdel v. Williams, 9 Nev. 161; Smith v. Dennett, 15 Minn. 81; Lewis ". Edwards, 44 Ind. 333, 336; Snowden v. Wilas, 19 Ind. 10; Lane v. Miller, 27 Ind. 534; Johnson v. Robinson, 20 Minn. 189, 192; Mills v. Rice, 3 Neb. 76, 86, 87; Trustees v. Odlin, 8 Ohio St. 293, 296. A quotation from a few of these cases will show the exact position taken by the courts in reference to the extent of defect which can and must be cured by motion; and I select from among those which have discussed the subject in the most general manner. In Prindle v. Caruthers, 15 N. Y. 425, the complaint set out a copy of a written contract made by defendant, and reciting that, "for value received," he “promised to pay H. C. or E. C.," &c.; but it did clear that the courts have, with a considerable degree of unanimity, agreed upon this rule, and have in most instances applied it not, in any other manner, allege a consideration. It also stated that "the contract is, and was prior to, &c., the property of the plaintiff by purchase," but did not disclose from whom the transfer was made, nor the consideration. The defendant demurring for want of sufficient facts, the court held that the copy of the contract as set forth contained a sufficient allegation of a consideration, and added: "The remedy for all defects of this nature is by motion to make the faulty pleading more definite and certain; that proceeding has taken the place of demurrers for want of form." Robson v. Comstock, 8 Wisc. 372, was an action for malicious prosecution. The complaint merely alleged that the defendant, maliciously and without probable cause, procured the plaintiff to be arrested and to be imprisoned, to his damage, &c., but did not state the nature of the indictment, nor in what the charge consisted, nor even that it was false, nor that there had been a trial, nor that the plaintiff had been discharged or acquitted. The defendant answered by a general denial; and, at the trial, the plaintiff had a verdict. On appeal from the judgment, the court, by Cole J., held (pp. 374, 375) that the complaint was exceedingly defective and informal in its manner of setting out the cause of action; but it was cured by the verdict. The plaintiff must have proved a discharge or acquittal, or else he could not have obtained a verdict. The code requires a liberal construction; and the defendant should have moved that the pleading be made definite and certain by supplying the omitted averments. In Morse v. Gilman, 16 Wisc. 504, the complaint alleged that defendant entered into a written contract with one Merrick for grading at a specified price per cubic yard; that the work had been completed by M. according to the agreement; that there was due thereon a certain named sum; and that the demand had been assigned by M. to the plaintiff; but it did not to any further extent state the provisions of the contract. At the trial, all evidence on the part of the plaintiff was excluded, and the complaint was dismissed. In reversing this ruling, the court, by Dixon C. J., said (p. 507): "That the contract between M. and the defendant is not set out, as it undoubtedly should have been, is not an objection which can be taken in this way. The remedy of the defendant for this defect is by motion to require the complaint to be made more definite and certain by amendment. A complaint to be overthrown by demurrer, or by objection to evidence, must be wholly insufficient. If any portion of it, or to any extent it presents facts sufficient to constitute a cause of action, or if a good cause of action can be gathered from it, it will stand, however inartificially these facts may be presented, or however defective, uncertain, or redundant may be the mode of their treatment. Contrary to the common-law rule, every reasonable intendment and presumption is to be made in favor of the pleading; and it will not be set aside on demurrer unless it be so fatally defective, that, taking all the facts to be admitted, the court can say they furnish no cause of action whatever; "citing and approving Cudlipp v. Whipple, 4 Duer, 610; Graham v. Camman, 5 Duer, 697; Broderick v. Poillon, 2 E. D. Smith, 554. In Saulsbury v. Alexander, 50 Mo. 142, the petition was, "Plaintiff states that defendant owes him, &c., for work done and cash lent, the particulars of which appear from the following account," &c., and concluding with a statement of the balance due, and a prayer for judgment. The defendant, making no objection to this pleading, answered, setting up only that the work had been negligently done, and that he had already paid more than its value. The plaintiff recovering at the trial, the defendant moved in arrest of judgment, on the ground that no cause of action was averred. This motion having been granted by the court below, the plaintiff appealed. The opinion of the Appellate Court, by Bliss J., proceeds as follows: "The petition is informal and defective, and there are some cases which seem to warrant the view taken by the court; to defects and mistakes having the same general features, and have sometimes severely strained the doctrine of liberal construction in order to enforce it. Thus, if instead of alleging the issuable facts the pleader should state the evidence of such facts, or even a portion only thereof, unless the omission was so exten but the tendency of our more recent decisions is to require all objections of form to be taken before the parties proceed to trial." After admitting that the cause of action was imperfectly stated, but that the main fact of the plaintiff's work, &c., for the defendant was admitted by the answer, which took issue merely upon the character of the labor, the opinion goes on: "Now, it is altogether unconscionable to permit him to arrest the judgment, because the charge which he admitted in full is defectively laid. When we say that a judgment should be arrested if the petition fails to show a cause of action, we speak of substantial, and not of formal, omissions. The latter are supplied by intendment, and will be presumed, after verdict, to have been proved. But when the petition shows that the plaintiff has no cause of action, then the verdict should be treated as a nullity. But if the defects are merely of omission, and if, when supplied, a complete case would be made, the omission being of facts which the jury must have found, then the judgment is a legitimate sentence of the law." In the recent case of Pomeroy v. Benton, 57 Mo. 531, 550, Sherwood J. declares the rule to be, that if the petition, however inartificially drawn, do but state a cause of action, and no objections are taken to its formal character, by demurrer or answer, or by motion to correct, then all objections are waived; and he very pertinently adds that "it seems often to be forgotten that we have a code in Missouri." The same doctrine was announced in Elfrank v. Seiler, 54 Mo. 134; Russell v. State Ins. Co., 55 Mo. 585; and Biddle v. Ramsey, 52 Mo. 153. The position taken by the court in these cases, and in Saulsbury v. Alexander, supra, is a wide departure from that maintained by some of the earlier decisions of the same court, which arrested judgments for the most trivial defects of the petition, equalling, if not, indeed, surpassing, the devotion to technicality shown by the English commonlaw tribunals. Blasdel v. Williams, 9 Nev. 161, was an action to quiet title under express provisions of the statute (code, § 256). The complaint alleged that the plaintiffs have the legal title, and are in possession; that the defendant claims an estate or interest in said land adverse to the plaintiffs' right; that defendant has no lawful interest or estate therein, or in any portion thereof, or valid claim or title thereto; with a prayer that defendant's claim might be adjudged void, and the plaintiffs' title quieted. The answer was a denial, no demurrer being interposed or motion made. This complaint being objected to, on appeal, the court held that the plaintiffs should have stated more than the mere general averments in respect to the defendant's adverse claim above quoted. They should disclose its nature, the estate which he asserts in the land, so as to show how it is prejudicial to the plaintiffs' interest, and must then negative these allegations. Nevertheless, the pleading as it stood was sufficient in the absence of a demurrer. The court said: "It is an attempt to state a cause of action, and is simply a defective statement of such cause, rather than an absolute lack thereof." This case is a very excellent illustration of the rule, and would have been perfect if the court had said that the pleading must stand in the absence of a motion to correct it, instead of "in the absence of a demurrer;" for the defect was exactly of the kind not reached by a demurrer. The court, in Mills v. Rice, 3 Neb. 76, 86, 87, said that when a petition is uncertain or indefinite in its allegations, when it attempts to set up a good cause of action, but the defect does not go to the length of omitting to state any cause of action, the defendant must move to correct; he cannot take advantage of it by demurrer. sive that no cause of action at all was indicated, or if he should aver conclusions of law, in place of fact, the resulting insufficiency and imperfection would pertain to the form rather than to the substance, and the mode of correction would be by a motion, and not by a demurrer. It is virtually impossible, however, to lay down a dividing-line, so that on the one side shall fall all the errors which are venial, and on the other all those which are fatal. While in most instances the courts have held that a motion is the only means of removing the defect, and therefore that a neglect to make a motion waives all objection without any reference to the stage of the cause, yet in some cases a considerable stress has been laid upon the effect of a verdict in curing the error.1 And in certain decisions the language of the judges tends to create an unnecessary confusion, and to incorporate an additional element of doubt into the rule, which is not at best, from its very nature, capable of absolute certainty. In the cases referred to the courts have declared that if the defendant omits to move to make the pleading more definite and certain, or to demur, but answers and goes to trial, the objection is waived. This form of expression is a plain departure from the rule as given above, and is self-contradictory. The very distinctive feature of the class of defects under consideration is, that they do not render a pleading demurrable, but only expose it to amendment by motion. A failure to demur is therefore entirely immaterial; it does not waive any thing, because the demurrer if resorted to would have accomplished nothing. Doubt and obscurity alone as to the true meaning and the exact force of the rule can arise from this careless use of language. § 550. It has even been held, that where a cause of action is so defectively set out that a demurrer for want of sufficient facts would have been sustained, but the adverse party answers 1 See Robson v. Comstock, 8 Wisc. 372, 374, 375; Hazleton v. Union Bank, 32 Wisc. 34, 42, 43; Clay v. Edgerton, 19 Ohio St. 549; Saulsbury v. Alexander, 50 Mo. 142, 144; Corpenny v. Sedalia, 57 Mo. 88; Pomeroy v. Benton, 57 Mo. 531, 550; Blasdel v. Williams, 9 Nev. 161; Smith v. Dennett, 15 Minn. 81. In Missouri, and in a few other States, a motion in arrest of judgment is permitted by the practice under some circumstances, and the above cases, cited from that State, hold that such a motion is not proper when the petition is simply defective and imperfect in its statement of the cause of action, and should only be made when it wholly fails to set forth any cause of action; the mere imperfection is cured by the verdict. 2 Pomeroy v. Benton, 57 Mo. 531, 550; Blasdel v. Williams, 9 Nev. 161; Smith v. Dennett, 15 Minn. 81; Johnson v. Robinson, 20 Minn. 189, 192. |