pleading, to frame a complaint or petition in all cases which shall show on its face that the plaintiff has elected to bring his action, either in tort or on contract. In one class of liabilities it is certainly possible to do so; namely, in those which result from the defendant's fraudulent representations and deceits. The allegation of a scienter is indispensable in the action ex delicto based upon such a liability, and distinguishes it in a marked manner from the correlative action based upon the implied promise. But when the liability results from the wrongful taking or conversion of chattels, from trespasses, negligences, or other similar kinds of wrongs, the very facts which are alleged in the action of tort are the facts from which the promise is inferred; and, according to the true theory of pleading, these facts must also be stated in the action ex contractu, without any legal inferences or conclusions. It conclusively follows, that, in this general class of liabilities, as the facts which constitute the cause of action are the same in each, the averments of the complaint or petition must be the same in each kind of action, if the essential principles of the reformed system are complied with, so that it is impossible to indicate upon the face of the pleading alone the election which the plaintiff has made. The form of summons adopted would therefore seem to be the only certain test, in this class of cases, by which the nature of the action can be determined, and the fact of an election can be made known to the adverse party. The only other alternative is, to insert in the complaint certain legal conclusions or descriptive phrases which, in reference to the statement of the cause of action, are purely immaterial and redundant.

SECTION FOURTH.

THE FORM OF THE COMPLAINT OR PETITION.

§ 574. Having thus discussed and determined the fundamental principles and general doctrines of the reformed pleading, which apply to all causes of action, and to all defences by way of confession and avoidance or of affirmative relief, I shall now briefly consider the rules which pertain to the form of the complaint or petition, and which regulate the manner of stating and arranging its allegations. These rules are few and simple; and their

object is to render the issues single and certain, and to present the cause of action for a decision upon its merits, and not upon any technical, incidental, or collateral questions. In one important feature the new system stands in marked contrast with the old, the entire absence of all special phrases or formulas by which the kinds of actions are distinguished, or by which the pleadings or any parts of them are characterized.

§ 575. When a complaint or petition contains two or more causes of action, all the codes require that they shall be distinctly and separately stated and numbered; and the method by which a violation of this requirement is to be corrected has already been explained.' It is a settled rule, that, if the pleading is of this kind, each separate division or count must be complete by itself, and must contain all the averments necessary to a perfect cause of action. Defects and omissions in one cannot be supplied by the allegations found in another; nor can the pleader, by merely referring to material facts properly set forth in a former count, incorporate them into and make them part of a subsequent one. In other words, all the issuable or material facts constituting the ground for a recovery must be stated in each cause of action, even though some repetition might thereby become necessary. This requirement, however, applies only to the material and issuable facts which constitute the cause of action. Matter which is simply introductory or by way of inducement, and not part of the gravamen, after having been once set out at the commencement of the pleading, need not be repeated in each paragraph, but should be referred to merely. And this introductory matter includes all descriptions of the character, capacity, or particular right in respect of which the plaintiffs and defendants are made parties to the action, as executors, trustees, public officers, and the like. These and similar statements properly form the commencement or introduction of the complaint, distinct from the several causes of action, and equally applicable to all of them. Whenever, therefore, a cause of action is attacked by a demurrer directed either against it alone or against the entire pleading, it must stand or fall by its own averments, and cannot be helped out by any facts, however sufficient in themselves alleged in another paragraph or count. But the par1 See supra, §§ 447, 450. 555; Durkee v. City Bank, 13 Wisc. 216,

2 Abendroth v. Boardley, 27 Wisc. 222; Curtis v. Moore, 15 Wisc 184;

ticular sum of damages claimed in each cause of action need not necessarily be given at its close; it is sufficient if the aggregate amount is alleged and demanded at the end of the complaint.1

§ 576. Since the reformed pleading requires the facts to be averred as they actually took place, it does not in general permit a single cause of action to be set forth in two or more different forms or counts, as was the familiar practice at the common law. The rule is undoubtedly settled, that, under all ordinary circumstances, the plaintiff who has but one cause of action will not be suffered to spread it upon the record in differing shapes and modes, as though he possessed two or more distinct demands; and when he does so without special and sufficient reason, he will be compelled, either by a motion before the trial or by an application and direction at the trial, to select one of these counts, and to abandon the others. It is certain that different causes of action in the complaint or petition must, as a general rule, imply as many distinct causes of action actually held or claimed to be held by the plaintiff. It cannot be said, however, that this rule is absolutely inflexible. As it is one of convenience simply, it must sometimes yield to the demands of justice and equity. Under peculiar circumstances, when the exact legal nature of the plaintiff's right and of the defendant's liability depends upon facts in the sole possession of the defendant, and which will not be developed until the trial, the plaintiff may set forth the same single cause of action in varied counts and with differing averments, so as to meet the possible proofs which will for the first time fully appear on the trial. This proposition is plainly just and right, and is sustained by the authority of able courts.3

Sabin v. Austin, 19 Wisc. 421, 423; Catlin v. Pedrick, 17 Wisc. 88, 91; Barlow v. Burns, 40 Cal. 351, 353; Potter v. Earnest, 45. Ind. 416; Mason v. Weston, 29 Ind. 561; Day v. Vallette, 25 Ind. 42; Leabo v. Detrick, 18 Ind. 414; National Bank v. Green, 33 Iowa, 140 (answer); Silvers v. Junction R. R., 43 Ind. 435, 446 (reply).

1 Spears v. Ward, 48 Ind. 541.

2 Sturges v. Burton, 8 Ohio St. 215; Muzzy v. Ledlie, 23 Wisc. 445; Lackey v. Vanderbilt, 10 How. Pr. 155; Nash v. McCauley, 9 Abb. Pr. 159; Sipperly v. Troy and B. R. R., 9 How. Pr. 83; Hillv. Hillman, 14 How. Pr. 456;

man

Churchill v. Churchill, 9 How. Pr. 552; Ford v. Mattice, 14 How. Pr. 91; Dunning v. Thomas, 11 How. Pr. 281.

Whitney v. Chicago, &c. N. W. R. R., 27 Wisc. 327, 340-342. The plaintiff had shipped wool on defendant's road for Chicago, and it was never delivered. He did not know whether it had been lost in the transit, or had been burned at a fire which had consumed defendant's warehouse in Chicago. He therefore set forth in his complaint two distinct causes of action (1) against the defendant as a common carrier, and (2) against defendant as a warehouse-man- for the negligent loss of the goods. This manner of

§ 577. When a complaint or petition contains two or more distinct causes of action, a demurrer to it as a whole, or to all or some of the causes of action jointly, must fail and be overruled if any one of the separate causes of action included in the demurrer is good; and the same rule applies to separate defences in an answer. The defendant should never demur to an entire complaint or petition consisting of several distinct causes of action, nor to two or more causes of action jointly, unless he is certain that they are all insufficient; and, under all circumstances, it is the better and safer practice to demur in express terms to each separately, for each will then stand or fall upon its own merits.2 The same rule also applies to a demurrer for want of sufficient facts by two or more defendants jointly; it will be overruled as to all who unite in it if the complaint or petition states a good cause of action against even one of them. A different rule, however, prevails in some States.*

§ 578. It is expressly provided in all the codes, that material allegations of the complaint or petition not controverted by the answer are admitted, and they need not be proved; the same is of course true of averments expressly admitted. A denial of the legal conclusion, such as the indebtedness, while the answer is silent with respect to the issuable facts from which the conclusion follows, is a mere nullity, and raises no issue.5 What aver

pleading was held proper under the circumstances, and the plaintiff could not be compelled to elect on the trial. The subject is exhaustively discussed by Dixon C. J., pp. 340-342. See also Smith v. Douglass, 15 Abb. Pr. 266; Jones v. Palmer, 1 Abb. Pr. 442.

1 Curtis v. Moore, 15 Wisc. 134; Jef fersonville, &c. R. R. v. Vancant, 40 Ind. 233; Heavenridge v. Mondy, 34 Ind. 28; Hale v. Omaha Nat. Bank, 49 N. Y. 626, 630; Ward v. Guyer, 3 N. Y. S. C. 58; Silvers v. Junction R. R., 43 Ind. 435, 442445. In the last case the question arose on a reply which contained several paragraphs or defences. The defendant demurred as follows: "Now comes the defendant, and demurs to the second, third, and fourth paragraphs of the plaintiff's reply, upon the following grounds: First, said second paragraph does not state facts sufficient, &c.; second, said third paragraph does not state facts, &c.; third, said fourth paragraph does not," &c. This

demurrer was held to be joint, and not several; and the rule of the text was enforced. The opinion carefully discusses the question, what language makes a demurrer or an answer joint, and what sev eral, citing on this topic Lane v. State, 7 Ind. 426; Barner v. Morehead, 22 Ind. 254; Jewett v. Honey Creek Draining Co., 39 Ind. 245; Parker v. Thomas, 19 Ind. 213; Fankboner v. Fankboner, 20 Ind. 62; Aiken v. Bruen, 21 Ind. 137; Hume v. Dessar, 29 Ind. 112.

222.

2 Durkee v. City Bank, 13 Wisc. 216,

3 McGonigal v. Colter, 32 Wisc. 614; Webster v. Tibbits, 19 Wisc. 488; Shore v. Taylor, 46 Ind. 345; Owen v. Cooper, 46 Ind. 524.

4 Wood v. Olney, 7 Nev. 109. The demurrer was sustained as to some, and overruled as to the others.

Skinner v. Clute, 9 Nev. 342; Jenkins v. N. C. Ore Dressing Co., 65 N. C. 563.

ments are material, and are thus admitted unless controverted, is a question of law to be decided by the court, and not by the jury. The result just mentioned does not arise from a failure to deny immaterial allegations; such statements are not issuable, and their truth is not conceded for the purposes of the trial by the defendant's neglect to controvert them. In this class are included all species of immaterial and non-issuable matter, such as details of evidence, conclusions of law, and averments of time, place, value, amount, and the like, in all ordinary circumstances.2 An important question presents itself in this connection as to the effect of a qualified admission contained in the defendant's answer, and the decisions in respect to it are somewhat conflicting. The rule is settled by one group of cases, that when the answer expressly admits certain material averments of the complaint or petition, but at the same time accompanies this concession with the statement of affirmative matter in explanation and qualification by the way of defence, the plaintiff may avail himself of the admissions without the qualifications; he is not bound to take the defendant's entire statement; he is freed from the necessity of proving his own averments that are admitted, while the defendant must prove those which he sets up.3 Other cases seem to lay down a different rule, denying to the plaintiff the full benefit of the admission, and requiring him to accept it, if at all, with the defendant's qualifying matter. When different

1 Becker v. Crow, 7 Bush, 198.

2 Doyle v. Franklin, 48 Cal. 537, 539; Gates v. Salmon, 46 Cal. 361, 379 (evidence); Chicago, &c. R. R. v. North West. U. P. Co., 38 Iowa, 377, 382 (value of goods); People v. Commissioners, 54 N. Y. 276, 279 (conclusion of law). See also Sands v. St. John, 36 Barb. 628; 23 How. Pr. 140; Fry v. Bennett, 5 Sandf. 54; Newman v. Otto, 4 Sandf. 668; Oechs v. Cook, 3 Duer, 161; Harlow v. Hamilton, 6 How. Pr. 475; Connoss v. Meir, 2 E. D. Smith, 314; Mayor, &c. v. Cunliff, 2 N. Y. 165, 171.

3 Dickson v. Cole, 34 Wisc. 621, 626, 627. The answer admitted the agreement set forth in the complaint, but set up in connection therewith a further agreement by way of avoidance. On the trial, the court held the cause of action to be admitted, and the plaintiff was not called upon for any proofs. The defendant

urged, that, if the answer was taken as an admission at all in the plaintiff's favor, the whole of it should be taken. The court, by Lyon J., said: "In several cases this court has taken a different view of the law, and has held, that, if a fact be expressly admitted in any part of the answer, such fact is to be taken as true against the defendant, and the plaintiff is relieved from the necessity of proving it, and this though it may be controverted in some other part of the answer. The principle must necessarily be the same when the fact is stated by way of confession and avoidance, as in this case." The following cases werecited as sustaining this view: Sexton v. Rhames, 13 Wisc. 99; Hartwell v. Page, 14 Wisc. 49; Orton v. Noonan, 19 Wisc. 350; Farrell v. Hennesy, 21 Wisc. 632.

4 Troy and Rut. R. R. v. Kerr, 17 Barb. 581. As to the effect of admis