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NEW JERSEY-Court of Errors and Appeals.


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Supreme Court of Errors and the Superior Court




As revised by the Judges in June, 1890, under the provisions of the General Statutes.


Rules for Proceedings under the Practice Act.

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assign the cause of action, the assignee, on

his written application, may either be joined JOINDER OF PARTIES.

as a co-plaintiff or substituted as a sole plainSection 1. In suits on a joint contract, tiff, as the court may order: provided, the whether partnership or otherwise, the per same shall in no manner prejudice the defense sonal representatives of a deceased co-con to the action as it stood before such change tractor may join as plaintiffs, and be joined of parties. as defendants, with the survivor: provided, Sec. 7. Where the plaintiff may, at his opthat, where the estate of the decedent is in tion, join several as defendants or sue them settlement in this state as an insolvent es separately, judgment without satisfaction tate, his personal representatives cannot be against one shall not bar a suit against anjoined as defendants.

other. Sec. 2. Persons severally and immediately Sec. 8. In all cases where there are several liable on the same obligation or instrument, defendants the court may make such order as including parties to bills of exchange and it may deem just to prevent any defendant promissory notes, and indorsers, guarantors, from being embarrassed or put to expense by and sureties, whether on the same or by a being required to attend to any proceedings separate instrument, may all or any of them in the action in which he may have no interbe joined as defendants, and a joint judgment est; and no costs shall be taxed against any may be rendered against those so joined; but, defendant with which he is not justly chargewhere the cause of action against one person

is not complete until after suit against an-

other, such persons cannot be joined as de-

Sec. 3. Persons may be joined as defend Section 1. The form of complaint herein-
anis against whom the right to relief is al after provided, and denominated the “Com-
leged to exist in the alternative, although a mon Counts,” may be used for the commence-
right to relief against one may be inconsist ment of an action when any of these counts
ent with a right to relief against the other. is an appropriate general statement of the

Sec. 4. The term “trustee of an express cause of action; but the defendant shall not trust,” in section 886 of the General Stat be required to pleadl, nor shall any default be utes, shall be construed to include any person taken, until the plaintiff has filed a proper with whom, vr in wliose name, a contract is bill of particulars, or such further statement made for the benefit of another.

by way either of a substituted complaint or Sec. 5. If a part interest in a contract ob of amendment as may be necessary to show ligation be assigned, the assignor (retaining his cause of action as fully as is required in the remaining interest) and assignee may join other cases; and such statement, where the as plaintiffs.

demand is founded on an express contract, Sec. 6. If, pending the action, the plaintiff whether executory or executed, shall set forth


26 ATL.

the terms of the contract. Where a bill of specific relief, the defendant shall have a particulars only is filed, all the counts not reasonable opportunity to have the claim for applicable thereto shall be struck out by damages tried to the jury. amendment.

Sec. 12. If, in a complaint on a penal bondi Sec. 2. Where the defendant has wrong the condition is not noticed, the plaintiff shall fully sold personal property of the plaintiff, file, at the first opening of the court to which the latter may waive the tort, affirm the sale, his writ is returnable, an amendment to the and sue for the proceeds; but, in the case of complaint referring to the condition, and a wrongful conversion of property without a specifying the breaches on which he relies. sale, the plaintiff cannot waive the tort and Sec. 13. Where the plaintiff desires to make declare as on a contract.

a cupy of any document a part of his comSec. 3. In an action for goods sold at a rea plaint, he may, without reciting or annexing sonable price, if the proof is that they were it, refer to it as Exhibit A, B, C, etc., as sold at an agreed price, the plaintiff shall not fully as if he had set it out at length, but, in be precluded, on the ground of a variance, such case, shall file such exhibit or exhibits from recovering such agreed price; and, in on the first opening of the court to which the an action for goods sold at an agreed price, writ is returnable. Where such copy or cophe may recover a different or a reasonable ies exceed in all two pages in length, if the price, if the proof fail to establish the price plaintiff annexes them to or incorporates alleged; and the like rule shall prevail in ac them in his complaint at full length, he shall tions for work done or materials furnished. not be allowed in his costs for such part of

Sec. 4. Where separate and distinct causes the fees of the officer for copies of such comof action (as distinguished from separate plaint left in service as are chargeable for and distinct claims for relief, founded on the copying such instrument or instruments, exsame cause of action or transaction) are cept to the extent of two pages. joined, the statement of the second shall be prefaced by the words "Second Count," and

III. so on for the others; and the several paragraphs of each count shall be numbered sep

GENERAL RULES OF PLEADING. arately, beginning in each count with the Section 1. Acts and contracts may be statnumber one.

ed according to their legal effect, but in so Sec. 5. “Injuries to character," within the doing the pleading should be such as fairly meaning of section 878 of the General Stat to apprise the adverse party of the state of utes, may embrace libei, slander, and mali facts which it is intended to prove. Thus, cious prosecution.

an act or promise by a principal, (other than Sec. 6. In a complaint of replevin no other a corporation,) if in fact proceeding from an cause of action shall be joined.

agent known to the pleader, should be so Sec. 7. Where several torts are committed stated; and the obligation of a husb nd to simultaneously against the plaintiff, (as a pay for necessaries furnished to his wife, battery, accompanied by slanderous words,) whom he has driven from his house, should they may be ned as causes of action aris be stated according to the facts. ing out of the same transaction, not with Sec. 2. It shall not be necessary for a party standing they may belong to different classes to set forth in any plealing the items of an of tort.

account therein alleged, or to describe the Sec. 8. A cause of action for legal relief particular articles of any quantity of goods for breach of contract may be joined with (as, for instance, the stock of merchandise another cause of action for equitable relief in a certain store, or the furniture in a cergrowing out of another contract, althongh tain house) as to which a conversion, asporsuch contracts are in no way related to each tation, lien, or other matter is alleged; but other.

in such case a particular description of the Sec. 9. The plaintiff may claim alternative varivus items or articles shall, unless the relief, based upon an alternative construction court otherwise order, be filed before any deof his cause of action.

fanlt is taken or the adverse party required Sec. 10. All matters heretofore within the to answer. jurisdiction of a court of equity, whether di Sec. 3. Interest and costs need not be sperectly or as incident to other matters before citically claimed in the demand for relief in it, may be heard and decided by the court order to recover them. without a jury, in the manner heretofore Sec. 4. No formal profert need be made in practiced in courts of equity; but a party any pleading seeking equitable relief shall specifically de Sec. 5. It is unnecessary to allege any mand it as such, unless the nature of the de promise or duty which the law implies from mand itself indicates that the relief sought is

the facts pleaded. equitable relief.

Sec. 6. In all cases of any material vari. Sec. 11. In a complaint demanding specific ance between allegation and proof, an amendequitable relief, and also damages, as equi ment shall be permitted at any stage of the table relief incident thereto, (as for the resor trial. If such allegation was made without mation of a policy of insurance and the pay reasonable excuse, or if the adverse party ment of a loss under the same as reformed,) was actually misled thereby to his prejudice if the plaintiff fail to make out a case for in maintaining his action or defense upon the

merits, and this is shown to the satisfaction costs for the time during which he remains of the court, such amendment shall be made in default, even if he eventually obtain judg. only upon payment of costs, and such other ment, and the court may, on motion of the terms as the court may deem proper; but in other party, order a nonsuit, default, or judgany other case without costs. Immaterial ment on a cross-complaint, counter-claim, or variances shall be wholly disregarded.

set-off, as the case may be. Sec. 7. Transactions connected with the Sec. 2. All pleas shall be filed with and same subject of action may include any trans kept by the clerk of the court, who shall inactions which grow out of the subject matter dorse upon each plea the time when it is in regard to which the controversy has arisen, filed, and make a like entry on his docket. It as, for instance, the failure of a bailee to use shall be the duty of the party to see that the the goods bailed for the purpose agreed, and proper indorsement and entry are made at also an injury to them by his fault or neg the time of filing his plea. lect; the breach of a covenant for quiet en Sec. 3. When any pleading is amended, the joyment by the entry of the lessor, and also a adverse party shall answer or reply, or, if he trespass to goods committed in the course of has already pleaded, alter his plea if he so the entry.

desires, within ten days after such amendSec. 8. Supplemental pleadings, showing ment, or such other time as these rules or the matters arising since the original pleading, court may prescribe. may be filed by either party; and cross-com Sec. 4. Every material allegation in any plaints, of the nature of cross-bills in equity, pleading which is not denied by the adverse touching matters in question in the original party shall be deemed to be admitted, unless complaint, may be filed by the defendant in he avers that he has not any knowledge or any action, whether such action be for legal information thereof sufficient to form a beor equitable relief, and additional parties lief. suinmoned in to answer the same, if neces Sec. 5. Pleading a general denial, when sary.

there is any material allegation in the comSec. 9. The court may order any pleading plaint which the defendant either knew was to be stricken out which discloses no reasona true, or did not believe to be untrue, shall ble ground of action or defense.

subject the party to the payments provided Sec. 10. Proof of allegations of facts wholly for in section 882 of the General Statutes. immaterial to the right claimed by the plead- Counsel fees, taxable under said section, shall ings will, on objection, be excluded.

not be less than five dollars.

Sec. 6. No facts can be proved, under either IV.

a general or special denial, except such as

show that the plaintiff's statements of fact PLEADINGS SUBSEQUENT TO THE COM are untrue. Facts which are consistent with PLAINT.

such statements, but show, notwithstanding, Section 1. In every civil action in the su that he has no cause of action, must be speperior court, court of common pleas, and dis. cially alleged. Thus, accord and satisfactrict court, the defendant, if he does not plead tion, arbitrament and award, coverture, duin abatement, shall answer or demur within ress, fraud, illegality not apparent on the thirty days from the return-day of the writ, face of the pleadings, infancy, that the deand thereafter the pleadings in the action fendant was non compos mentis, payment, shall advance at least one step, at the expi release, and the statute of limitations, must ration of each successive period of twenty

be specially pleaded; while advantage may days, until the same shall be closed. But be taken, under a simple denial, of such dethis rule shall not be applied to causes which fenses as contributory negligence, the statute are continued on account of the absence of of frauds, or title in a third person to what the defendant from the state, nor during the plaintiff sues upon or alleges to be his July and August; nor shall it be construed to prevent the court from varying the prog

Sec. 7. D als must fairly meet the subress of the pleadings in any cause on motion. stance of the allegation denied. Thus, when The bill of particulars, substituted complaint, the payment of a certain sum is alleged, and or amendment, provided for by rule II., $ 1, in fact a less sum was paid, the defendant and rule III., $ 2, must be filed in each of said cannot simply deny the payment generally, courts within 10 days after the return-day of but must set forth how much was paid tu the writ, unless otherwise ordered by the him; and where any matter of fact is alleged court; and the thirty days within which the with divers circumstances, some of which adverse party is required to plead shall run are untruly stated, it shall not be suflicient from the day when the same is filed; but in to deny it as alleged, but so much as is true actions before justices of the peace such bill and material should be stated or admitted, of particulars, substituted complaint, or and the rest only denied. amendment must be filed at or before the Sec. 8. Where several matters of defense hour named in the writ for the appearance are pleaded, each must be pleaded separately, of the defendant, unless it be otherwise agreed and must refer to the cause of action which by the parties or ordered by the court. If it is intended to answer. Where the comany party fail to plead, agreeably to this rule plaint is for more than one cause of action, or the order of the court, he shall recover no

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 upou 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.

AMENDMENTS. Section 1. Complaints for breach of contract may be amended so as to set fortb, in stead, it 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 amerided 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.

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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 coun. ter-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.

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.

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