Imágenes de páginas

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 ihe parly pleading is not ac. the pleading should be stated. The stalement quainted with minute circumstances. of immaterial or irrelevant matter is not only East, 112. Com. Dig. Pleader, C. 26. 8 censurable on the ground of expense, but fre. East, 85. General statements of facts admitquently 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 he 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 car. 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 Iwo or more facts, either of which would of pleading them, 2 H. Bla. 530; for it is io be itsell, 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. Litt. Lit. 304. a. Com. Dig. Pleader, C. 33. E. 2. 30. 36; but the language is to have a reasona. I Chit. on P. 208.

ble intendment and construction, Com. Dig. Udly. 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 regarder, 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, that shull be taken and these, with certainty, precision, and bre. which will support the averment, and not the vily. The facts, as stated, must not be in other which would defeat it. 4 Tuunt. 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. 1 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 will Stephen, 378. to 405.

not set aside the proceedings. 7 T. R. 80. 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,--the venue must tertain the iruth 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 bailable cases the defendant 182. Cor. Dig. Pleader, c. 17. Less cer- will be discharged; but it would be otherwise

+ In 4 Johns, R. 485, and i 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.


Il.loca. a :tions, where possession of land is to be recovered, or damages for an actual trespass, or for waste, fe. 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 cir

because there the assises are holden only once a year, at the time of (d) Rastall. t. Delle. 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 are sued; but as, brought in a particular county, as by 31 Eliza 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 stalutes, 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. Tidul, 432. i Chit. 246. So actions of case 318. 3 B. & P. 395; and as there are seve- or irespass 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, coasta. between the writ and declaration, 6 T. R. bles, tithing men, churchwardens, &c. or 364. many of the older decisions are no longer other persons acting in their ard 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. iiff may plead in abatement, or demur accord, or against any person or persons for any thing ingly. As to thesc general requisites, see l done by an officer of the excise, 23 Geo. IIL. Chit. on PI. 222 to 229.

c. 70. $. 34. or customs, 24 Geo. III. 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 execution, &c. unless there be some contract between or by reason of his nffice, or for any thing the parties, on which to ground the action. I done in pursuance of the act relating to taxes, 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 prori. remedy 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 u bere, with a proviso thai 180. 6 East, 598. Where an injury has been the action may be brought in Westminster, caused in one county, la 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, re. more 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. At either. 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, 83: 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 same 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


fore observed (1), are now mere names of form; though formerly they were of use to answer to the king for the amercement of the plaintiff, in case he were nonsuited, barred of his action, or had a verdict or judgment against him (i). For, if the plaintiff neglects to deliver a declaration for

two terms after the defendant appears, or is guilty of other de(*296] lays or defaults against the rules of law in any subsequent *stace

of the action, he is adjudged not to follow or pursue his remedy as he ought to do, and thereupon a nonsuit,cor non prosequitur, is entered ; and he is said to be nonpros'd (9). And for thus deserting his complaint, after making a false claim or complaint (pro falso clamore suo), he shall not only pay costs to the defendant, but is liable to be amerced to the king. A retraxit differs from a nonsuit, in that the one is negative, and the other positive: the nonsuit is a mere default and neglect of the plaintiff, and therefore he is allowed to begin his suit again, upon payment of costs ; but a retrarit

axit is an open and voluntary renunciation of his suit, in court, and by this he for ever loses his action. A discontinuance is somewhat similar to a nonsuit ; ffor when a plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day, and time to time, as he ought to do, the suit is discontinued, and the defendant is no longer bound to attend, but the plaintiff must begin again, by suing out a new original, usually paying costs to his antagonist. Anciently, by the demise of the king, all suits depending in his courts were at once discontinued, and the plaintiff was obliged w renew the process, by suing out a fresh writ from the successor ; the virtue of the former writ being totally gone, and the defendant no longer bound to attend in consequence thereof; but, to prevent the expense as well as delay attending this rule of law, the statute 1 Edw. VI. c. 7. enacts, that by the death of the king no action shall be discontinued; but all proceedings shall stand good as if the same king had been living.

When the plaintiff hath stated his case in the declaration, it is incumbent on the defendant within a reasonable time to make his defence and to put in a plea ; else the plaintiff will at once recover judgment by default. or nihil dicit of the defendant.

Defence, in its true legal sense, signifies not a justification, protection, or guard, which is now its popular signification ; but merely an oppos. ing or denial (from the French verb defender) of the truth or validity of the complaint.61 It is the contestatio litis of the civilians : a general asser

tion that the plaintiff hath no ground of action, which assertion [*297] is afterwards extended *and maintained in his plea. For it

would be ridiculous to suppose that the defendant comes and defends (or, in the vulgar acceptation, justifies) the force and injury, in one line, and pleads that he is not guilty of the trespass complained of, in the next.

And therefore in actions of dower, where the demandant doch not count of any injury done, but merely demands her endowment (k), and in assises of land,62 where also there is no injury alleged, but merely a question of right stated for the determination of the recognitors or jury,

(h) See page 274.
(i) 3 Bulstr. 275. 4 Inst. 189.

(k) Rastal. Ent. 134.

(9) B't unless the defendant take advantage defendant is entitled to, and how he should of the plaintiff's neglect, by signing such sign a judgment of, and the costs on a non judyment, the plaintiff may deliver his decla. pros, see Tidd, 8 ed. idex, tit. Noi Pros. ration at any time within a year next after the In New-York the defendant must enter • return of the writ, 3 T. R. 123. 5 ib. 35. 7 rule for the plaintiff to declare, before he can 3. 7. sed vide 2 N. R. 404. As to when the non pros the plaintiff.

(60) See Hov. n. (60) at end of the Vol. B. III. (61) Ib. (61) B. III. (62) Ib. 62) B. IU.

the tenant makes no such defence (1). In writs of entry (m), where no injury is stated in the count, but merely the right of the demandant and the defective title of the tenant, the tenant comes and defends or denies his right, jus suum ; that is, (as I understand it, though with a small grammatical inaccuracy), the right of the demandant, the only one expressly mentioned in the pleadings, or else denies his own right to be such, as is suggested by the count of the demandant. And in writs of right (n) .he tenant always comes and defends the right of the demandant and his seisin, jus praedicti S. et seisinam ipsius (o) (or else the seisin of his ancestor, upon which he counts, as the case may be), and the demandant may teply, that the tenant unjustly defends his, the demandant's, right, and the seisin on which he counts (p). All which is extremely clear, if we understand by defence an opposition or denial, but it is otherwise inexplicably lifficult (7).

The courts were formerly very nice and curious with respect to the nalure of the defence, so that if no defence was made, though a sufficient plea was pleaded, the plaintiff should recover judgment (r): and therefore the book entitled novae narrationes or the new talys (s), at the end of almost every count, narratio, or lale, subjoins such defence as is proper for . the defendant to make. For a general defence or denial was not prudent in every situation, since thereby the propriety of the writ, the competency of the plaintiff, and the cognizance of the court, were allowed. By defending the force and injury, *the defendant waved [*298] all pleas of misnosmer ((); by defending the damages, all exceptions to the person of the plaintiff; and by defending either one or the other when and where it should behove him, he acknowledged the jurisdiction of the court (u). But of late years these niceties have been very de. servedly discountenanced (w): though they still seem to be law, if insistec on ().

Before defence made, if at all, cognizance of the suit must be claimed or demanded ; when any person or body corporate hath the franchise, not only of holdiny pleas within a particular limited jurisdiction, but also of the cognizance of pleas : and that, either without any words exclusive of other courts, which entitles the lord of the franchise, whenever any suit that belongs to his jurisdiction is commenced in the courts at Westminster, to demand the cognizance thereof: or with such exclusive words, which also entitle the defendant to plead to the jurisdiction of the court (y). Upon this claim of cognizance, if allowed, all proceedings shall cease in the superior court, and the plaintiff is left at liberty to pursue his remedy in the special jurisdiction. As, when a scholar, or other privileged person of the universities of Oxford or Cambridge, is impleaded in the courts at Westminster, for any cause of action whatsoever, unless upon a question of free hold (2) (10). In these cases, by the charter of those learned bodies, con (1) Booth of real actions, 118.

tant quil defende tort et force, home doyt entendre (m) Book II. Append. No. V. 02.

quil se excuse de tort a luy surmys per counte, et (n) Append. No. 1. 5.

fait se partie al ple ; et per tant quil defende les damages, il affirm le parle able destre respondu; el

per tant quil defende ou et quant il devera, il' ac (9) The true reason of this, says Booth. (on real cepte la poiar de court de conustre ou trier lour ple actions, 94. 112.) I could never yet find; so little did he understand of principles !

(w) Salk. 217. Lord Raym. 282.

(1) Carth. 230. Lord Raym. 217. (6 Theloal. dig. I. 14. c. 1, pag. 357.

) En la defence sont iij choses entendanız; per (z) See page $3. (10) But only resident members of either university are entitled to this pri Dege, it .. ing local as well as personal. 2 Wils. 310

(0) Co. Entr. 182.
(p) Nov. Var. 230. edit. 1534.

See also CC

(Mlod. tenend. cur. 408. edit. 1534.)
Litt. 127.

ir). Co. Litt. 127.
's) edit. 1534.

(y) 2 Lord Raym. 636.

10 Mod. 126

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