Imágenes de páginas
PDF
EPUB

Special bail is riqured (as of course) only upon actions of debt, ur ac. tions on the case in trover or for money due, where the plaintiff can sweat that the cause of action amounts to ten pounds (32): but in actions where the damages are precarious, being to be assessed ad libitum by a jury, as in actions for words, ejectment, or trespass, it is very seldom possible for plaintiff to swear to the amount of his cause of action; and therefore no special bail is taken thereon, unless by a judge's order or the particular directions of the court, in some peculiar species of injuries, as in cases of mayhem or atrocious battery; or upon such special circumstances as make it absolutely necessary, that the defendant should be kept within the reach of justice. Also in actions against heirs, executors, and administrators, for debis of the deceased, special bail is not demandable ; for the action is not so properly against them in person, as against the effects of the deceased in their possession. But special bail is required even of them, in actions for a devastavit, or wasting the goods of the deceased ; that wrong being of their own committing.

Thus much for process; which is only meant to bring the defendant into court, in order to contest the suit, and abide the determination of the law. When he appears either in person as a prisoner, or out upon bail, then follow the pleadings between the parties, which we shall consider at large in the next chapter.

CHAPTER XX.

OF PLEADING.

PLEADING$ are the mutual altercations between the plaintiff and defendant; which at present are set down and delivered into the proper office in writing, though formerly they were usually put in by their counsel ore lenus, or viva voce, in court, and then minuted down by the chief clerks, or prothonotaries; whence in our old law French the pleadings are frequently denominated the parol (1). by rendering their principal, there are various other irregularity in proceeding against the other causes for discharging them, such as the principal. Tidd, 1182. See the various cases death of the defendant, Tidd, 293. 1183 ; his on these points and other qualifications in bankruptcy and certificate, 1 Burr 244. Cowp. Tidd's Prac. 8 ed. 290 to 295. 403. 1147. 1182. 824 ; his being made a peer, or member of 1187. parliament, Dougl. 45. Tidd, 293; or being (32) Several extensions of the sum have sent abroad under the alien act, 6 T. R. 50. taken place: and now, by the last statute, viz. 52.7 T. R. 517; or under sentence of tran- 7 & 8 Geo. IV. c. 71, the cause of action must sportation, 6 T. R. 247; or his being impress. amount 10 201. ed or discharged on the 48 Geo. III, c. 123; (1) Pleading is the statement in a logical or by the act of the plaintiff in not declaring and legal form of the facts which constitute in due sime ; by making a material variance the plaintiff's cause of action, or the defendin the declaration from the process or affidavit ant's ground of defence; it is the formal mode in the cause of action, 2 East, 305. 2 B. & P. of alleging on the record that which would be 458. 6 T. R. 363; or a variance between the the support, or the defence, of the party in affidavit and judgment in C. P ; or in declar. evidence, per Buller, J. 3 T. R. 159.' nougl. og in a different county by original in K. B.; 278. " It is (as also observed by the same or recovering under a bailable amount; or in learned judge, in Dougl Rep. 159.) one of the giving time to the defendant on a cognovit, first principles of pleading, that there is only &c.; or removing the cause from an inferior occasion to state facts, which must be done court, or referring to arbitration, or taking for the purpose of informing the court, whose principal in execution, Cro. Jac. 320; or any duty it is to declare the law arising upon thews

[ocr errors]

The firs. of these is the declaration, narratio, or count, anciently called the tale(a) in which the plaintiff sets forth his cause of complaint at length(2)

(a) Appendix, No. II. 02. No. III. 06. facts, and of apprizing the opposite party of noticed without pleading. (2 Inst. 557. Marsh. what is tneant to be proved, in order to give 124.) but not so of a less division, (id.) nor of him an opportunity to answer or traverse it.” Ireland. (1 Chit. Rep. 28, 32. 3 B. & A.301. And see the observations of lord C. J. De S. C. 2 D. & R. 15. I B. & C. 16. S. C.) Grey, Cowp. 682. From this it will be seen. The court will take judicial notice of the incor: that the science of special pleading may be porated towns, of the extent of ports, and the considered under two heads : Ist. The facts river Thames. (Sira. 469. I H. Bla. 356.) So necessary to be stated. 2. The mode of sta- it will take notice of the meaning of English ting them. In these considerations, the reader words and terms of art, according to their ordimust be contented with a general outline of nary acceptation, (1 Rol. Ab. 86. 525); also the law upon the subject.

of ihe names and quantities of legal weights Ist. The Facts NECESSARY TO BE STA. and measures, (1 Rol. Ab. 525); also courts TED.-No more should be stated than is essen. will take notice of its own course of proceedtial to constitute the cause of complaint, or ings, (1 T. R. 118. 2 Lev. 176.) and of those the ground of defence. Cowp. 683. i Lord of the superior courts, (2 Co. Rep. 18. Cro. Ray. 171. And facts only should be stated, Jac. 67.) the privileges they confer on their and not arguments or inferences, or matter of officers, (Lord Ray. 269. 898.) of courts of gelaw. Cowp. 684. 5 East, 275. The party neral jurisdiction, and the course of proceed. can only succeed on the facts, as they are al. ings therein ; as the court of exchequer in leged and proved.

Wales, and the counties palatine, (í Lord There are various facts which need not be Raym. 154. 1 Saund. 73); but the courts are stated, though it may be essential that they not bound, ex officio, to take notice who were, should be established in evidence, to entitle or are the judges of another court at Westmin the party pleading to succeed.

ster, (2 Andr. 74. Stra. 1226.) nor are the su. Thus there are facts of which the court will, perior courts, ex officio, bound to notice the from the nature of its office, take notice with customs, laws, or proceedings, of inferior out their being stated : as when the king came courts of limited jurisdiction, (1 Roll. Rep. to the throne, (2 Lord Raym. 794.) his privi. 105. Lord Raym. 1334. Cro. Eliz. 502.) leges, (id. 980.)

proclamations, &c. (1 Lord unless indeed in courts of error. (Cro. Car. Raym. 282. 2 Camp. 44. 4 M. & S. 532.) but 179.) private orders of council, pardons, and decla. Where the law presumes a fact, as that a rations of war, &c. must be stated. (2 Litt. person is innocent of a frand or crime, or that Bac. Reg. 303. 3 M. & S. 67. 11 Ves. 292. a transaction is illegal, it need not be stated. 3 Camp. 61. 67.) The time and place of hold. 4 M. & S. 105. 2 Wils. 147. Co. Lit. 78. b. ing parliaments, and their course of proceed. 1 B. & A. 463. ings, need not be stated, (1 Lord Raym. 343. Matter which should come more properly 210. 1 Saund. 131); but iheir journals inust. from the other side, as it is presumed to lie (Lord Ray. 15. Cowp 17.). Public statutes, more in the knowledge of the other party, or and the facts they ascertain, (i T. R. 145. is an answer to the charge of the party plead. Com. Dig. Pleader, c. 76); the ecclesiastical, ing, need not be stated, unless in pleas of civil, and marine laws (Bro. Quare Impedit, estoppel and alien enemy; but this rule inust pl. 12. Lord Ray. 338.) need not be slated; be acied upon with caution : for if the fact in but private acts (Lord Ray. 381. 2 Dongl. 97.) any way constitutes a condition precedent, to and foreign, (2 Cart. 273. Cowp. 174.) and enable the party to avail himself of the charge plantation and forest (2 Leon. 209.) law's, stated in his pleading, such fact should be must. Common law rights, duties, and gene- stated. Com. Dig. Pleader, c. 81. 1 Leon. ral customs, customs of gavelkind, and borough 18. 2 Saund. 62. b. 4 Camp. 20. II East, English, (Dougl. 150. Lord Ray. 175. 1542. 638. and see cases I Chit. on Pl. 206. Ste. Carth. 83. Co. Litt. 175. Lord Raym. 1025. phen, 354. Cro. Car. 561.) need not be stated : but parti- Though the facts of a case must be stated cular local customs must. (1 Rol. Rep. 509. in pleading, it is not necessary to stale that 9 East, 185. Stra. 187. 1187. Dougl. 387.) which is a mere matter of evidence of such The almanack is part of the law of the land, fact. 9 Rep.9.b. 9 Edw. III. 5. b. 6. a. Willes, and the courts take notice thereof, and the 130. Raym. 8. days of the week, and of the moveable feasts, And though the general rule is, that facta and terins. (Dougl. 380. Salk. 269. 1 Roll. only are to be stated, yet there are some is. Ab. 524. c. pl 4. 6 Mod. 81. Salk. 626.) So stances in which the statement in the pleading the division of England into counties will be is proper, though it does not accord with the real

(2) We have already cursorily considered i Chit. on Pl. 4 ed. 234 to 360. The points the general requisites and modes of framing a relating to them are too numerous for any de. declaration. Iis parts, and particular requisites, tail, though indeed the requisites relating to consist in the title of the court and term, the the venue, the several counts and pledges, venue, the commencement, the statement of will be here partially considered, the learner the ca'use of action, the several courts, the commentator having treated of them thouga conclusion, and the profert and pledges. As not very methodically. to the manner of stating these requisites, see

being indeed only an amplification or exposition of the original writ npan which his action is founded, with the additional circumstances of time and place, when and where the injury was committed. But we may remember (6), that in the king's bench, when the defendant is brought into court by bill of Middlesex, upon a supposed trespass, in order to give the court a jurisdiction, the plaintiff may declare in whatever action, or charge him with whatever injury he thinks proper ; unless he has held him to bail by a special ac etiam, which the plaintiff is then bound to pursue. And so also, in order to have the benefit of a capias to secure the defendant's person, it was the ancient practice, and is therefore still warrantable in the common *pleas, to sue out a writ of trespass [*294) quare clausum fregit, for breaking the plaintiff's close : and when the defendant is once brought in upon his writ, the plaintiff declares in whatever action the nature of his true injury may require ; as in an action of covenant, or on the case for breach of contract, or other less forcible transgression (c): unless, by holding the defendant to bail on a special ac etiam, he has bound himself to declare accordingly (3). (b) See page 285. 288.

(c) 2 Ventr. 259.

facts, the law allowing a fiction, as in eject. tainty is requisite, when the law presumes ment, trover, detinue, &c. 2 Burr. 667. 1 that the knowledge of the facts is peculiarly N. R. 140.

in the opposite party; and so when it is to be No fact that is not essential to substantiate presumed that the party pleading is not ac. the pleading should be stated. The stalement quainted with minute circumstances. 13 of immaterial or irrelevant matter is not only East, 112. Com. Dig. Pleader, C. 26. 8 censurable on the ground of expense, but fré- East, 85. General stalements of facts admit. quently affords an advantage to the opposite ting of almost any proof, are objectionable, I party, either as the ground of a variance, or M. & S. 441. 3 M. & S. 114; but where a as rendering it encumbent on the party plead. subject comprehends multiplicity of matter, ing to adduce more evidence than would other there, in order to avoid prolixity, general plead wise have been necessary; though, indeed, ing is allowed. 2 Saund. 411. n. 4. 8'T. R. if the matter unnecessarily stated be wholly 462. foreign and impertinent to the cause, so that In the construction of facts stated in plead. no allegation whatever on the subject was ne. ing, it is a general rule, that every thing shall cessary, it will be rejected as surplusage, it be taken most strongly against the party being a maxim that utile per inutile non vitia. pleading, 1 Saund. 259. 11. 8; or rather, if the tar. See cases, &c. in Chit. on Pl. 208, 9, meaning of the words be equivocal, they shall 10. Besides this, the pleading must not state be construed most strongly against the party two or more facts, either of which would of pleading them, 2 H. Bla. 530; for it is to be itself, independently of the other, constitute a intended, that every person states his case as sufficient ground of action or defence. Co. favourably to himself as possible, Co. Liu. Lit. 304. a. Com. Dig. Pleader, C. 33. E. 2. 30. 36; but the language is to have a reasonaI Chil, on P. 203.

ble intendment and construction, Com. Dig. 2dly. THE MODE OF STATING FACTS.- Pleader, C. 25; and if the sense be clear, The facts should be stated logically, in their mere exceptions ought not to be regarderd, 5 natural order; as, on the part of the plaintiff, East, 529; and where an expression is capable his right, the injury and consequent damage ; of different ineanings, thai shall be taken and these, with certainty, precision, and bre. which will support the averment, and not the vity. The facts, as stated, must not be in other which would defeat it. 4 Taunt. 492. sensible or repugnant, nor ambiguous or doubt. 5 East, 257. After verdict, an expression ful in meaning, nor argumentative, nor in the should be construed in such sense as would alternative; nor by way of recital, but posi. sustain the verdict. i B. & C. 297. tive, and according to their legal effect and (3) And even then, the plaintiff will only operation. Dougl. 666, 7. i Chit. on Pl. 211. lose the benefit of the bail, and the court wilt Stephen, 378. to 405.

not set aside the proceedings. 7 T. R. BO. Certainty signifies a clear and distinct 8 T. R. 27.5 Moore, 483. *6 'T. R. 363. So statement, so that it may be understood by in the K. B. where the proceedings are by the opposite party, by the jury, who are lo as original, we have seen ante,-ihe venue must tertain the truth of such statement, and by be laid in the county into which the original the court, who are to give judgment. Cowp. was issued ; or in builable cases the defendant 182. Con. Dig. Pleader, C. 17. Less cer- will be discharged; but it would be otherwise

+ In 4 Johns, R. 485, and 1 Wendell 305, claration was for a different cause of action it was decided that proceedings not commenc- from the ac etiam in the writ. ed by original might be set aside, if the de.

Ir locar å tions, where possession of land is to be recovered, or damages for an actual trespass, or for waste, fc. affecting land, the plaintiff must lay his declaration or declare his injury to have happened in the very county and place that it really did happen (4); but in transitory actions, for injuries that might have happened any where, as debt, detinue, slander, and the like, the plaintiff may declare in what county he pleases, and then he trial must be had in that county in which the declaration is laid. l'hough is the defendant will make affidavit that the cause of action, if any, arose not in that but in another county, the court will direct a change of the venue or visne (that is, the vicinia or neighbourhood in which the injury is declared to be done), and will oblige the plaintiff to declare in the other county ; unless he will undertake to give material evidence in the first. For the statutes 6 Rich. II. c. 2. and 4 Hen. IV. c. 18. having ordered all writs to be laid in their proper counties, this, as the judges conceived, empowered them to change the venue, if required, and not to insist rigidly on abating the writ: which practice began in the reign of James the First (d). And this power is discretionally exercised, so as to prevent and not to cause a defect of justice. Therefore the court will not change the venue to any of the four northern counties, previous to the spring circuit; because there the assises are holden only once a year, at the time of

(d) Rastall. t. Dette. 184. b. Fitz. Abr. t. Briefe. 18. Salk. 670. Trye's Jus Filiz. 25). Styl. Pract Reg. (edit. 1657.) 331. in C. P. Imp. C. P. 159 ; and this would be action is founded on the privity of estate. 3 the only advantage gained by the defendant. T. R. 394. 3 Co. 23. I Saund. 237, Tidd.

The declaration should in other respects 431. I Chit. 244 to 246. correspond with the process, as in the names In some cases the action, though of a tran, and numbers of the parties, the character or sitory nature, must, by act of parliament, be right in which they sue or ære sued; but as, brought in a particular county, as by 31 Eliz according to the present practice of the courts, c. 5. 8. 2. 21 Jac. I. c. 4. 8. 2. In actions or oyer of the writ cannot be craved, and a vari- informations on penal statutes, the venue must ance between the writ and declaration cannot be laid where the offence was committed. in any case be pleaded in abatement, 1 Saund. Tidil, 432. I Chit. 246. So actions of case 318. 3 B. & P. 395; and as there are seve- or trespass are local when against justices of ral instances in which the court will not set the peace, mayors, bailiffs of cities, or towns aside the proceedings on account of a variance corporate, headboroughs, portreves, constabetween the writ and declaration, 6 T. R. bles, tithing men, church wardens, &c. or 364, many of the older decisions are no longer other persons acting in their aid and assist applicable in practice. But if the defect ap. ance, or by their command, for any thing done pear on the face of the declaration, the plain. in their official capacity, 21 Jac. I. c. 12. s. 5. tiff may plead in abatement, or demur accord, or against any person or persons for any thing ingly. As to these general requisites, see I done by an officer of the excise, 23 Geo. Il Chit. on Pl. 222 to 229.

c. 70. $. 34. or customs, 24 Geo. Ill. sess. (4) Actions for every kind of injury to real 2. c. 47. s. 35. 39. and see 28 Geo. III. c. 37. property are local, as for nuisances, waste, s. 23. or others acting in his aid, in executione &c. unless there be some contract between or by reason of his office, or for any thing the parties, on which to ground the action. I done in pursuance of the act relating to tases, Taunt. 379. 11 East, 226. And if the land &c. 43 'Geo. III. c. 99. s. 70. And the 42 be out of this kingdom, the plaintiff has no Geo. III. c. 85. s. 6. extends the above provi. semedy in the English courts, if there be a sions of the 21 Jac. I. to all persons in any court of justice to resort to where the land is public employment, or any office, station, (5) situate. 4 T. R. 503. | Sira. 646. Cowp. or capacity, any where, with a proviso that 180. 6 East, 598. Where an injury has been the action may be brought in Westminster, caused in one county, to land, &c. in another, or where the defendant resides. There are or when the action is founded upon two or also various other provisions in other acts, romore material facts, which took place in dif. quiring that the venue shall be local, as in ferent counties, the venue may be laid in the highway, turnpike, militia acts, &c. Ateither. 2 Taunt. 252, overruling (2 Campb. tornies may lay and retain the venue in Mid. 266.) 7 Co. I. 3 Leon. 141. 7 T. R. 583. dlesex. I Chitty on Pl. 242.

(5) 2 R. S. 353, & 14: 409, $3: see id. In an action upon a lease for the non-pay. 353, '$ 2, &c. as to venue generally. In tran ment of rent, or other breach of covenant, sitory actions, the Supreme Court of New when the action is founded on the privity of York change the venue to suit the run contract, it is transitory : but not so when the nience of witnesses

the summer circuit. And it will sometimes remove the venue from the proper jurisdiction (especially of a narrow and limited kind), upon a sugges. tion duly supported, that a fair and impartial trial cannot be nad therein (e).

*It is generally usual in actions upon the case to set forth se- [*295) Feral cases by different counts in the same declaration;69so that if the plaintiff fails in the proof of one, he may succeed in another. As, in an action on the case upon an assumpsit-for goods sold and delivered, the plaintiff usually counts or declares, first, upon a settled and agreed price between him and the defendant; as that they bargained for twenty pounds : and lest he should fail in the proof of this, he counts likewise upon a quantum valebant ; that the defendant bought other goods, and agreed to pay him so much as they were reasonably worth ; and then avers that they were worth other twenty pounds; and so on in three or four different shapes (6); and at last concludes with declaring, that the defendant had refused to fulfil any of these agreements, whereby he is endamaged to such a value. And if he proves the case laid in any one of his counts, though he fails in the rest, he shall recover proportionable damages. This declaration always concludes with these words, “and thereupon he brings suit," &c." inde producit sectam, &c. (?)." By which words, suit or secta (a sequendo), were anciently understood ihe witnesses or followers of the plaintiff (f). For in former times the law would not put the defendant to the trouble of answering the charge, till the plaintiff had made out at least a probable case (g). But the actual production of the suit, the secta, or followers, is now antiquated ; and hath been totally disused, at least ever since the reign of Edward the Third, though the form of it still continues.

At the end of the declaration are added also the plaintiff's common pledges of prosecution, John Doe and Richard Roe (8), which, as we be.

(e) Stra. 874.--Mylock v. Saladine. Trin. 4 Geo. (f) Seld. on Fortesc. c. 21. 111. B. R.

(g) Bract. 400. Flet. l. 2, c. 6.

(6) The variations should be substantial; les, 118. i Chitty on Plead. 182. Debt and for if the different counts be so similar that detinue may, however, be joined, although the the same evidence would support each of them, judgments be different. 2 Saund. 117. And and be of any considerable length, and vexa. see further as to what is a misjoinder, 1 Chit. tiously inserted, he court would, on applica. on Pl. 199. Unless the subsequent count oxtion, refer it to the master for examination, pressly refers to the preceding, no defect thereand to strike out the redundant counts; and in in will be aided by such preceding count. Bac. gross cases direct the costs to be paid by the Ab. Pleas and Pleader, 16. 1. attorney. N. R. 289. Rep. T. Hardw. 129. (7) It does not so conclude in actions And as to striking out superfluous counts, see against attornies and other officers of the Trdd, 8 ed. 667. 648; in 2 Bing. 412. nine court, but thus; "and therefore he prays re counts were allowed in an action for slander, lief, &c." Andr. 247. Barnes, 3. 167. though the words used were very few. See 1 In actions at the suit of an executor or adChit, on Pl. 350, 1, 2. as to the insertion of ministrator, immediately after the conclusion several counts. There must be no misjoinder to the damage, &c. and before the pledges, a of different counts; and, in order to prevent prosert of the letters testamentary, or letters the confusion which might ensue, is different of administration, should be made. Bac, Ab, forms of action, requiring different pleas and Executor, C. Dougl

. 5. in notes. But omission different judgments, were allowed to be found is added unless defendant demnur specially 4 in one action, it is a general rule, that actions Ann. c. 16. s. 1. in form er contractu cannot be joined with (8) But these pledges need not be statea a those in form ex delicto. Thus, assumpsit and proceedings by original, or in the C. P., unless dett, 2 Smith, 618. 3 ib. 114. or assumpsit and in proceedings against attornies, &c. Suin en action on the case, as for a fort, cannot be mary on Pl. 42. Bames, 163. Nor are iney oined, I T. R. 276, 277. i Vent. 366. Carth. necessary in an action at the suit of the king 89. nor assumpsit with trover, 2 Lev. 101. 3 or queen. & Co. 61. Cro. Car. 161. And no lev. 99. 1 Salk. 10. 3 Wjls. 354. 6 East. 335. advantage can be taken or the omission in any Chitty R. 343 nor trover with detinue. Wil. case, even on special demurrer. 3 T. R. 137. á Vol. 11. (59) See Hov, n. (59) at the end of the Vol. B II

« AnteriorContinuar »