Markoe v. Seaver

2 Wis. 148 | Wis. | 1853

By the Court,

Smith, J.

The same principle is involved in this case, as that decided by this court in Cooper vs. Blood, (ante 62). We held, in the latter case, that where a copy of the note was endorsed upon the declaration, and served therewith, as the canse of action upon which the ;plain tiff claims, such copy "becomes apart of the declaration, and that the defendant might plead thereto any defence to the note, and that the plaintiff would he confined to the cause of action thus set out. After a careful review of-that decision, we are satisfied of its entire -correctness. The declaration is a statement of the plaintiff’s cause of action. In cases of this kind, the statute prescribes the mode by which such cause of action may be stated, and when stated according to such mode, the statement becomes the declaration. Instead of setting forth the cause of action by a special count upon the promissory note, the formula of the common counts may be used, and a copy of the note endorsed and served. But the common counts in such cases do not set out the cause of action, for the note a copy of which is served, is expressly alleged to be the only cause; and when so set out, the statute makes” it sufficient. To hold the note so served with the declaration, as constituting a part of it, is not only in accordance with sound reason, but essential to the rights of the defendant.

" The object of the declaration is, to apprize the defendant of the precise matter of complaint against him. That which truly accomplishes this function indicating with sufficient certainty the facts to be proved in its support, whatever may be its form, is in reality, and should be held tobe, the declaration. The common counts, without the note, do not inform the defendant of the precise cause of action, when the suit is brought on the note solely ; but when a copy of the note is endorsed with a statement, that the note is the only cause of action, the requisite preciS^011 *s stained, tlie defendant is informed of the pre-cige nature of the complaint, and the proof indicated which it is to he supported. It is not material to jnqUjj.e whether this mode .is an improvement. The statute makes if equivalent to a special count upon the note, the purpose of which it serves, and the copy thus endorsed and served should he considered as much a part of the declaration, as the special count for which it is substituted, and whose functions it performs.

In no philosophical view can we confound the office of the declaration, with the mere forms which have heen, and are in current use. That must he considered the declaration, which states the cause of action, and whatever form the legislature may prescribe in which such statement may he made, when it is so made, it becomes the substance, essence and quality of the declaration itself. Nor, should the office of the note served with the declaration under the statute, he confounded with that of a hill of particulars. The latter does not become evidence ; it constitutes none of facts to support the declaration ; it is no part of the promise on which the count is based ; it is neither the contract, nor the evidence of it. Hence it is well liolden, that it does not form a part of the count, nor become a part of the record.

Holding, therefore, that the copy of the note endorsed and served with the declaration, became and was a part of it, the note was admissible in evidence, and advantage of the nonjoinder shoidd have been taken by plea in abatement.

The judgment of the court below is reversed, and the cause remanded for a new trial.