Definition
Fariousness is a pleading defect arising from the improper joining of multiple causes of action in a single count or declaration that are incompatible in kind — most commonly, the mixing of a tort claim and a contract claim within the same count. The term describes the quality of being "farious," meaning the state of improperly mingling distinct and legally incompatible matters in a single pleading unit.
The defect is distinct from mere misjoinder of parties or counts. Fariousness speaks specifically to the internal inconsistency or incompatibility within a single count, where the pleader has attempted to press two legally distinct theories of recovery as though they were one.
Common Confusion
Fariousness is easily conflated with misjoinder, but the two concepts operate at different levels. Misjoinder concerns the improper combination of separate counts or parties across a pleading as a whole. Fariousness is the more granular defect: it arises within a single count that attempts to blend legally incompatible causes of action — typically tort and contract — into one undifferentiated claim. The Bouvier entry treats fariousness as a species of misjoinder, but historical pleading practice treated it as a distinct vice because the remedy and the point of attack differed. A farious count was objectionable not merely because too many claims were present, but because the internal logic of the count was self-contradictory.
Why It Matters in Research
Researchers will encounter this term almost exclusively in older common law pleading materials, particularly English cases and American authorities from the early nineteenth century. It belongs to the technical vocabulary of common law pleading that largely disappeared after code pleading reforms — beginning with the New York Field Code of 1848 — and was further eroded under notice pleading regimes.
Several navigational traps exist:
First, the term is rare enough that it does not appear in most modern legal dictionaries, including Black's. Researchers who encounter it in a historical opinion or treatise and search for it in modern sources may find nothing. Bouvier's is the primary American dictionary source.
Second, the Bouvier entry on fariousness is incomplete in the surviving digitized text, cutting off mid-sentence. This means the full doctrinal treatment — including what remedies applied and whether verdict could cure the defect — must be reconstructed from the underlying authorities Bouvier cites, namely English reporters and Chitty on Pleading.
Third, the consequences of fariousness tracked those of misjoinder generally under common law pleading: the defect could be raised by general demurrer, motion in arrest of judgment, or writ of error. Whether a verdict could cure the defect depended on the specific circumstances. Researchers working on the history of pleading reform will want to trace how code pleading abolished these hyper-technical distinctions by permitting separate statement of separate claims rather than forcing everything into counts.
Fourth, the term has no meaningful presence in equity practice, which was more flexible about pleading multiple theories. The fariousness doctrine was a creature of the rigidity of common law forms.
Historical Dictionary Support
Bouvier's Law Dictionary is the only major American legal dictionary to use the term as an entry head. Bouvier situates fariousness within the broader treatment of misjoinder, citing English authorities including Maule & Selwyn's Reports, Bosanquet & Puller's Reports, Term Reports, Levinz's Reports, Modern Reports, and Chitty's Precedents of Pleading. These citations locate the doctrine firmly in the late eighteenth and early nineteenth century English common law pleading tradition as it was received and applied in American courts.
Bouvier's entry implies that fariousness was a recognized ground of objection that could survive to error — meaning a party who failed to demur could still raise the defect after verdict — though the entry also acknowledges that verdict could aid the defect in some cases, suggesting courts were not entirely rigid in its application.
What historical sources do not address is any post-code development, because the doctrine did not survive into the code pleading era in any robust form. The concept of a farious count became irrelevant once pleaders were required to state each claim separately and were no longer penalized for pleading alternative theories.
Jurisdictional Note
Fariousness as a named doctrine was an English common law concept adopted in American jurisdictions that followed common law pleading rules prior to code pleading reforms. It has no significant modern jurisdictional footprint. States that adopted the Field Code and its successors effectively abolished the conditions that gave rise to the doctrine. Federal practice under the Federal Rules of Civil Procedure, which permit alternative and inconsistent pleading, renders the concept obsolete in federal court.