Floyd v. Dearborn

But your difficulty is that you are seeking *92to apply a rule of equity pleadings to a strictly law action. At law the rule of pleading always has been, that it should state in a logical and legal form, the facts which constitute the' cause of action or the defense, and not the evidence of those facts. The fact of Edward Floyd’s ownership is the particular one which is the gist of the defense in this suit, and while a statement of that fact may be indispensable for the defendant, it is by no means necessary for him to state the circumstances which merely tend to prove the truth of it. The fact of E. Floyd’s continued possession is no more than evidence of his ownership, presumptive or conclusive, according to circumstances, but still only evidence.

It was therefore unnecessary for the defendant in his answer to aver it, and the averment must be stricken out unless the defendant has a right, as he claims, to the plaintiff’s explicit' admission or denial of it on the record.

In suits in equity where one party had a right to call upon the other, not only to set up his defense to the action, but alsc to testify in regard to it, the strict rule of pleading which I have stated did not apply, and the plaintiff was allowed tc aver, not only the fact on which his cause of action rested, but also the circumstances merely tending to prove it, so as to obtain evidence in regard to it, in the form of an admission in the pleadings. But all that is now done away with, by that provision of the Code which abolishes bills of discovery, and substitutes in their place an oral examination of the party. And the rule of pleading is now universal which formerly prevailed in all cases on the law side of the Court, and in those cases on the equity-side, where a discovery was not sought, namely, that the pleading must contain only an averment of the fact, which is the gist of the cause of action or defense, and not averments of circumstances which merely tend to prove that fact.

Motion granted, costs to abide the event.