KING, J.: Each action is to recover damages for an alleged libel and is before the law court on a general demurrer to the declaration. In the first action the publication of the alleged libelous matter is stated in this form:

"Said defendant did *** falsely and maliciously compose, print, publish and circulate, or cause to be composed, printed, published and circulated in a certain public newspaper *** a certain scandalous and malicious libel of and concerning the plaintiff."

In the other action the publication is stated in this form:

"Said defendant did *** falsely and maliciously compose and publish or cause and prepare to be composed and published *** in a certain newspaper a certain scandalous and malicious libel of and concerning the plaintiff."

* * *

It is a general rule of pleading, too well settled to need the citation of authorities, that the declaration must allege the gravamenthe grievance complained of with such precision, certainty and definiteness that the defendant may know what to answer by his pleading and proof.

A disjunctive allegation as to the essence of the cause of action is as pure an example of uncertainty and indefiniteness in pleading as can well be found, for it completely conceals from the defendant the ground upon which a recovery is claimed.

Such form of allegation has been uniformly regarded as fatally defective.

"A pleading is bad under any system of practice when it states material facts in the alternative, so that it is impossible to determine upon which of several equally substantive averments the pleader relies for the maintenance of his action or defense." 6 Encyc. Pl. & Pr., page 268; Chitty on Pl. 16th Am. ed., star page 260; Stephen on Pl. 340; State v. Singer, 101 Maine, 299.

In the last case cited this court recently decided that such form of charging, in the disjunctive, in an indictment for libel, violates the rule of certainty in criminal pleading and is fatal on general demurrer. It is there said:

"To be charged with printing and publishing a libel is one thing and to defend against it, evidence of one kind may be required, while to meet the charge of having caused a libel to be printed and published may require evidence of another and entirely different character. This distinction goes to the essence of the charge."

Applying the same rule of certainty to the declaration in the cases before us, with like discriminating reasoning, and they are found defective because of the disjunctive form in which the publication is alleged.

But it is suggested by plaintiff that such effect is not reached by a general demurrer. We think it is. It is not a defect in form, but in substance. The question to be answered by the declaration is:

MACURDA V. JOURNAL CO.

329

What act of defendant is relied upon? The answer is uncertain; either that he did an act complained of, or caused it to be done. This uncertainty of allegation goes to the very essence of the cause of action to the act of defendant from which the cause of action springs.

If from the declaration the cause of action does not sufficiently appear the pleading is defective in matter of substance.

Here the plaintiff has alleged in each declaration that the defendant did either one or the other of two substantive acts, but he has not disclosed upon which of those acts he relies as the cause of action.

It is the opinion of the court that the declaration in each case is defective because of the disjunctive form of allegation used, and that the defect is reached by general demurrer.

This conclusion makes it unnecessary to consider the other particulars in which it is claimed the declarations are defective. The entry in each case must be, exceptions sustained.37

"As a general rule, it is bad pleading to state material facts in the alternative. King v. Brereton, 8 Mod. 328 (1725); Cook v. Cox, 3 M. & S. 109 (1814); Stone v. Graves, 8 Mo. 148 (1843); Tift v. Tift, 4 Den. (N. Y.) 175 (1847); Corbin v. George, 2 Abb. Pr. (N. Y.) 465 (1856); Sallers v. Genin, 8 Abb. Pr. (N. Y.) 253 (1859); Wheeler v. Thayer, 121 Înd. 64 (1889); Mitchell v. Williamson, 6 Md. 210 (1854); Pittsburg, &c., R. Co. v. Peck, 165 Ind. 537 (1905); Sprague v. Currie, 133 App. Div. (N. Y.) 18 (1909); Pacetti v. Cent. G. R. Co., 6 Ga. App. 97 (1909); Sloss-Sheffield Co. v. Smith, 166 Ala. 437 (1910); Chitty on Pleading, *260; Stephen on Pleading (Heard's ed.) 387. When a plaintiff, in a single count shifts his right of action from one ground to another, and states several breaches of duty in the alternative or disjunctively, so that it is impossible to say upon which of several equally material averments he relies, the complaint is bad. Highland, &c., R. Co. v. Dusenberry, 94 Ala. 413 (1891). Compare Douglas v. Marsh, 141 Mich. 209 (1905); Spaulding v. Edina, 122 Mo. App. 65 (1906); Alabama G. S. R. Co. v. Sanders, 145 Ala. 449 (1906).

It has, however, been held that it is sometimes permissible to plead alternatively, when from the nature of the case the party pleading can not, fairly be expected to know with certainty which of two conditions exist either of which would sustain his action or defense. Mann v. Cook, 24 Abb. N. C. 314 (1890) and note; Hasbery v. Moses, 81 App. Div. (N. Y.) 815. (1907); Mutual Life Ins. Co. v. McCurdy, 118 App. Div. (N. Y.) 815 (1907); Floyd v. Patterson, 72 Tex. 202 (1888); Bank of Saluda v. Feaster, 87 S. Car. 95 (1910) And in several states, by statute, a party may allege a fact in the alternative upon declaring his belief of one alternative or the other and his ignorance whether it is one, or the other. Revised Laws Massachusetts (1902), ch. 173, § 34; Kentucky Code of Civil Procedure, § 113, subsec. 4; Louisville & N. R. Co. v. Ft. Wayne Co., 108 Ky. 113 (1900); Merschel v. L. & N. R. Co., 121 Ky. 620 (1905). Missouri Revised Statutes (1909), § 1828; Fleming v. Tatum, 232 Mo. 678 (1911); Otrich v. St. L., &c., R. Co., 154 Mo. App. 420 (1910). Under the modern English rules the averment of inconsistent sets of material facts in the alternative is permitted unless embarrassing. Rules of Supreme Court, order 10, rule 24: Annual Practice (1914) 320; Smith v. Richardson, L. R. 4, C. P. D. 112 (1878).

The New Jersey Practice Act of 1912, Schedule A, rule 37, provides, "Plaintiff may claim alternative relief based upon an alternative construction or ascertainment of his cause of action."

DOE d. BIRCH v. PHILIPS.

COURT OF KING'S BENCH, 1796.

6 Term Reports, 597.

This ejectment was brought for a forfeiture in a lease.

Yates on a former day moved that the lessor of the plaintiff should give in a particular of the covenants, of the breaches, of the times when, etc., on which he meant to insist that the defendant had forfeited the lease, and that he should not be permitted to give evidence at the trial of any thing not contained in those particulars.

Scarlet now showed cause against the rule, and consented to give a particular of the covenants on which he meant to rely, such a particular as (he said) would be sufficient if this were an action of covenant instead of ejectment, but objected to the extent of the rule, which required a particular of the breaches and of the times when the forfeitures accrued.

But the court, thinking that the application in its full extent was highly reasonable, made the rule absolute.38

381 Tidd's Practitce (9th ed.) 596; I Troubat & Haly's Practice (Wharton's ed.) 365; 31 Cyc. 565; 16 P. & L. Dig. of Dec. Pa. 27261.

"A bill of particulars is appropriate in all descriptions of actions where the circumstances are such that justice demands that a party should be apprised of the matters for which he is to be put for trial with greater particularity than is required by the rules of pleading." Per Rapallo, J., in Tilton v. Beecher, 59 N. Y. 176 (1874). While the granting or refusing of a bill of particulars generally lies in the discretion of the court, it is usual to require particulars only in those cases where the pleadings are permitted to be general. If the pleading is more indefinite than is allowed by law a demurrer should be interposd. Clarke v. Ohio R. Co., 39 W. Va. 732 (1894); Transportation Co. v. Standard Oil Co., 50 W. Va. 611 (1902). See also, Le Breton v. Braham, 3 Burr. 1389 (1763); Collett v. Thompson, 3 B. & Pul. 246 (1802); Hurst v. Watkis, 1 Camp. 68 (1807); Mercer v. Sayre, 3 Johns. 248 (1808); Humphry v. Cotteyou, 4 Cow. (N. Y.) 54 (1825); Johnson v. Birley, 5 B. & Ald. 540 (1822); Comm. v. Snelling, 32 Mass. 321 (1834); Davies v. Chapman, 6 Ad. & El. 767 (1837); Early v. Smith, 12 Irish C. L. Rep., Appendix 35 (1861); Norris v. Hanson, 1 W. N. C. (Phila.) 507 (1875); Livingston v. Enochs, 1 W. N. C. (Phila.) 244 (1875); Furbush v. Phillips, 2 W. N. C. (Phila.) 198 (1875); Kelsey v. Sargent, 100 N. Y. 602 (1885); Dwyer v. Slattery, 118 App. Div. (N. Y.) 345 (1907); Wells v. Caro, 131 N. Y. S. 573 (1911); Locker v. Tobacco Co., 200 Fed. 973 (1912).

CHAPTER IV.

TRIAL

SECTION 1. MODES OF TRIAL.

"These modes of trial are seven in number: The trial by the record, by certificate, by witnesses, by inspection, by wager of battle, by wager of law, and by jury. The first is the appropriate form of trial when the existence of a record is affirmed on one side and denied on the other, upon an issue of nul tiel record. The trial by certificate is of rare occurrence in modern times, being almost entirely confined to the issue of ne unques accouple en loial matrimonie. This form of issue can arise only in dower; it is not allowed in personal actions. The trial by witnesses is, at the common law, applicable only to a very few issues; but it is the only form of trial which is known to the civil law. It is the proper form of trial when, to a widow's writ of dower, the tenant pleads that the husband is alive.

"The trial by inspection or examination occurred when the judges, upon the testimony of their own sense, were able to decide the point in dispute. This mode of trial seems to have been incidentally swept away in England in the demolition of real actions. The wager of battle was an appeal to arms, and proceeded upon the theory that heaven would give the victory to him who had the right. It was confined, as far as civil actions are concerned, to issue joined in a writ of right, "the last and most solemn decision of real property." It was abolished by statute. Wager of law was a method of deciding the issue by permitting the defendant to swear to the truth of his defense. He brought eleven compurgators with him into court who swore that they believed that he spoke the truth; and the oaths of the twelve were as conclusive against the plaintiff as a verdict would have been. This method of trial also has been abolished in England by statute. The seventh, and by far the most important mode of trial, is the trial by jury, called also the trial per pais, or by the country. It is on account of the peculiar characteristics of the trial by jury that the system of pleading at common law is what it is; and many of the rules which have been criticised as most technical and artificial, prove to be both logical and sound when considered in relation to the tribunal for whose guidance they were framed. Trial by jury is, with the exception of the trial by the record, the only form of trial in use in the United States."1

'Pepper on Pleading, 4; also, 18 A. & E. Encyc. of Law (1 ed.), 470. See also III Blackstone's Commentaries, 330; Stephen on Pleading (9 Am. ed.). 76; Elliott's General Practice, & 504, et seq.; Thompson on Trials, passim.; Thayer on Evidence, passim. Under modern statutes and rules many cases may be tried by the court without a jury.

MILLE LACS COUNTY COMMISSIONERS v. MORRISON.

SUPREME COURT OF MINNESOTA, 1875.

22 Minn. 178

Proceedings to enforce payment of delinquent taxes in the county of Mille Lacs under the Act of March 9, 1874 (Laws, 1874, ch. 1, sec. 113). The defendant objected to a defect in the county auditor's affidavit to the tax list, which was overruled, and to the sufficiency of the affidavit of publication, which was allowed to be corrected. The defendant then demanded a jury trial, which was denied. After rendering judgment against defendant's objections, the district judge certified the case to the supreme court.2

GILFILLAN, C. J.: Whether the taxpayer is entitled to a jury trial in these proceedings is an important question, as it affects both the power of the state to collect its revenues by a speedy and convenient mode, and the security of the citizen against oppression and illegal acts. It is claimed that because legal rights are involved and are to be determined, it is a proceeding at law, and that in all proceedings at law the right to a trial by jury is guaranteed by the Constitution, and the case of Parsons v. Bedford, 3 Pet. (U. S.) 433, is cited. In that case Mr. Justice Story, discussing the provisions of the Federal Constitution in respect to trial by jury, says (p. 447): "By common law they meant what the Constitution in the third article denominated 'law,' not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized and equitable remedies administered; or where, as in the admiralty, a mixture of public law and maritime law and equity, were often found in the same suit."

If, by this language, the learned judge meant that in all proceedings to ascertain and determine rights, other than those of equitable or maritime jurisdiction, the Constitution guarantees the right of trial by jury, the language is certainly too broad; for there are many proceedings, involving important rights, of neither equitable nor maritime jurisdiction, in which, as settled by many decisions, the parties are not entitled to a jury trial. We refer to a few of these: Proceedings by the state under its right of eminent domain. Penn. R. Co. v. Lutheran Congregation, 53 Pa. St. 445; Buffalo Bayou, etc., R. Co. v. Ferris, 26 Texas 588; Haverhill Bridge v. County Comm'rs, 103 Mass. 120; Dronberger v. Reed, 11 Ind. 420; Livingston v. Mayor, etc., of N. Y., 8 Wend. (N. Y.) 85.3

The statement of facts is from the opinion, part of which is omitted. Central Branch U. P. R. Co. v. Atchison, T. & S. F. R. Co., 28 Kans. 453 (1882); Ingram v. Maine W. Co., 98 Maine 566 (1904); Wixom v. Bixby, 127 Mich. 479 (1901); St. Joseph v. Geiwitz, 148 Mo. 210 (1899); State v. Jones, 239 N. Car. 613, 52 S. E. 240 (1905); Gilmer v. Hunnicutt, 57 S. Car. 166, 35 S. E. 521 (1900); Bauman v. Ross, 167 U. S. 549, 42 L. ed. 274, 17 Sup.