Clark v. Langworthy , 12 Wis. 441 ( 1860 )

By the Court,

Paine, J.

¥e think the motion of the defendant, for an order requiring the complaint to be made more definite and certain, should have been granted. Sec. 22, chap. 125, E. S. 1858, provides that “ where the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.” We are obliged to confess that this complaint seems to us to come within this provision. Por, after carefully examining it, even with the aid of the brief of counsel, it is impossible for us to say what is intended to be relied on as the cause of action. There are facts set forth in it which might be claimed as a cause of action for an assault and battery upon the wife, others for a false imprisonment of her, others that might be relied on as showing a malicious prosecution, and others tending to show that the matter relied on was an illegal search of OlarJc’s house and the seizure of his private papers. The brief of counsel would seem to indicate that the latter was intended, for he refers to tire transaction, as a violation of the provision of the constitution against unreasonable searches and But if this was the cause of action, it is obvious that the wife ought not to be joined, in the suit. And if not, and some of the acts perpetrated on her were relied on, then it is difficult to perceive what an act of trespass upon her husband’s property, or unlawful' seizure of Ms papers, could have to do with the matter. If these were committed, he would have Ms right of action therefor; but it ought not to be alleged as a part of an action for an assault upon, or false imprisonment of, the wife.

It is suggested that circumstances attending a trespass may be given in evidence to aggravate the damages, if properly alleged. This is undoubtedly so. But the difficulty here is, to say which are the circumstances and which the trespass. The trespass, if one is relied on, should be so distinctly set forth that it may be seen with reasonable certainty what is the principal act complained of, and not facts which might furnish ground for several different actions, stated in one count, leaving it impossible for the other party to know which to reply to. In the case of Root vs. Foster, 9 How. Pr., 37, which is cited by counsel as being similar to tMs, the complaint was obviously for an assault and battery, and the matter objected to was obviously mere matter of aggravation, neither amounting to, nor liable to be mistaken for, a separate ground of action. And under the old system of pleading, it would not have been traversable. 1 Ohitty’s PL, 612. We think the plaintiffs should be required to draw the complaint in such manner that the defendant may know whether the action is for an assault and battery, or for false imprisonment, or both, or for a malicious prosecution, or for an illegal search of GlarBs house.

The order refusing to require this, is reversed, with costs, and the cause remanded.