III. THE GENERAL REQUI action as was expressed in the writ (k); and in bailable cases, if there were a variance between the writ and the declaration, the defendant would be discharged on a common appearance (1); but the proceedings were not set aside SITES, &c. merely on account of a variance in describing the cause of action (m), and therefore the only consequence of the mistake was that the plaintiff lost the correspond with prosecurity of the bail. The uniformity of process act, 2 W. 4, c. 39, imperatively required that the form of action shall be concisely stated in each of the writs thereby prescribed, whether serviceable or bailable; and if the form should be omitted or substantially vary from one of those enjoined, even in serviceable process, the writ would, on summons or motion, be set aside, though "promises," omitting "on" or "upon," has been holden a mere clerical mistake (n). The proper forms are— In Assumpsit, "in an action on Promises." In Debt, "in an action of Debt." In Covenant, "in an action of Covenant." In Detinue, "in an action of Detinue." In a joint action of Debt and Detinue, "in an action of Debt and In Case or Trover, "in a plea of Trespass on the Case." In Trespass, "in an action of Trespass." It was the intention of the legislature that every writ, whether serviceable or bailable, should apprize the defendant of the form of action by which he would afterwards be declared against, and therefore it is an indispensable requisite of every declaration that it substantially adhere to the form of action stated in the process, as well in serviceable as bailable process, and if it deviate, the defendant may apply to the Court or a judge to set aside the declaration for irregularity; so that the plaintiff must abandon his first process and issue a fresh writ stating a form of action adapted to that in his declaration. But the objection is not a ground of demurrer to the declaration, but merely of a summary application to set aside the declaration for irregularity (o). It has been usual in the commencement of the declaration to state the form of action precisely as in the writ; but the forms of commencements of declarations prescribed by Reg. Gen. Mich. Term, 3 W. 4 (p), conclude with &c., and hence it is probable that it was not intended by the judges to state the form of action, but that the declaration should immediately proceed to state the substance of the cause of action (q); and according to the observations in recent cases, the form of action ought not to be stated in the commencement (r). If (k) 5 T. R. 402; R. Hilary, 8 Car. 1. (1) 6 T. R. 363; 2 Wils. 393; Tidd, 9th ed. 450, 451; but see 2 Moore, 301; 8 Taunt. 304, S. C. (m) Tidd, 450, 451, 9th ed. (n) Cooper v. Wheale, K. B. Mich. T. 1835, Legal Obs. 133, 134. (o) Anderson v. Thomas, 9 Bing. 678; Thompson v. Dicas, 2 Dowl. 94; Marshall v. Thomas, id. 205; Rotton v. Jeffery, id. 637; Reynolds v. Welsh, 1 Crom. M. & (q) See 3 Chitty's Gen. Prac. 467. (r) Ball v. Hamlett, 1 Crom. M. & Ros, 575; Reynolds v. Welsh, id. 580; Hargreaves v. Holder, id. (a); and see 3 Chit. Gen. Prac. 468. 1st. Should CCSS. GENERAL REQUI III. THE the body of the declaration state a cause of action that is not, nor could be, properly declared for in the form of action stated in the writ, then the deviation SITES, &c. would constitute an irregularity and ground for setting aside the declaration, but not a ground of demurrer. 1st. Should correspond cess. The form It has always been considered essential that the declaration should adhere with pro- to or proceed for the same cause of action as that expressed in the affidavit to hold to bail, and that if it do not, the defendant may apply by summons or and cause motion to be discharged out of custody, or to have the bail-bond cancelled, and the bail above would be discharged from liability (s); and unless the plaintiff in declarations must obtain a verdict for the cause of action stated in the affidavit, the bail would correspond even at that late stage of the cause, be relieved from responsibility (t). of action with the affidavit to Where the affidavit to hold to bail was for goods sold and money lent, and hold to bail. the declaration contained no count for goods sold, it was held no ground for applying to have an exoneretur entered on the bail-piece (u); but that decision is doubtful, and every careful pleader should take care to insert counts in his declaration to embrace every cause of action sworn to in the affidavit. 2dly. The declara tion must the facts essential to the sup action. The declaration must allege all the circumstances necessary for the support of the action, and contain a full, regular, and methodical statement of the instate all jury which the plaintiff has sustained (547), and the time; and in trespass quare clausum fregit, the name or abuttals of the close (x); though in other actions venue is no longer to be repeated in the body, but it is to be stated port of the only once in the margin (y). These, and all other circumstances essential in law to the action, must be stated with such precision, certainty, and clearness, [*286] that the defendant, knowing what he is called upon to answer (548), may *be able to plead a direct and unequivocal plea; and that the jury may be enabled to give a complete verdict upon the issue; and that the Court, consistently with the rules of law, may give a certain and distinct judgment upon the premises (z). The general rules as to what facts must be stated have been considered in the preceding chapter (a), as well as the inconveniences which may arise from the statement of superfluous or unnecessary matter (b). The requisites of the declaration in each particular case so much depend upon circumstances, that any general observations in this place upon the structure of a declaration would be but of little utility. We will presently consider the requisites in each form of action, and the precedents in the second volume must also be consulted, and, when applicable, should be followed on Lord Coke's principle, “nam nihil simul inventum est et perfectum ;" i. e. nothing at the same instant that it is discovered or invented is perfect, but becomes so only by frequent use and perhaps correction. (s) Scrivener v. Wathing, 1 Harr. & Wol. 8; 3 Chitty's Gen. Prac. 337. (t) 2 Taunt. Rep. 107. (u) Per Littledale, J., in Gray v. Harvey, 1 Dowl. 114; 1 Arch. Prac. C. P. [40]. Sed quære. (x) Reg. Gen. Hil. Term, 4 W. 4, r. V. In trespass, the abuttals should be on, not towards, the north, Lempriere v. Humphrey, 1 Harr. & Wol. 170. (y) Reg. Gen. Hil. Term, 4 W. 4, r. 8. (z) Cowp. 682; 6 East, 422, 423; 5 T. R. 623; Vin. Ab. Declarations. (a) Ante, 245, 266. (b) Ante, 262, 263. (547) Vide Pelton v. Ward, 3 Caines' Rep. 77. Carpenter v. Alexander, 9 Johns. Rep. 291. Roget v. Merit and Clapp, 2 Caines' Rep. 120. (548 Vide Coffin v. Coffin, 2 Mass. Rep. 363. GENERAL REQUI &c. We have already considered the different degrees of certainty required in 1. THE pleading, and we have seen that the certainty necessary in a declaration is to a certain intent in general (d), which should pervade the whole declaration, and SITES, is particularly required in setting forth the parties, time and other circumstances 3dly. Of necessary to maintain the action (e). In assumpsit, the description of the con- the certract, &c. by whereas, or recital, is not demurrable (ƒ), though it would be tainty reotherwise in trespass vi et armis (g). quired indeclaration (c). 1st. It must be stated with certainty who are the parties to the suit (h); and Certainty therefore a declaration by or against "C. D. and company," not being a corpo- of parties. ration, is insufficient (i) (549); so though property be vested in trustees (k) even by an act of parliament, yet, if they be not incorporated, they must be described by their proper names as individuals, and their character as trustees subjoined, as a description of the capacity in which the legislature authorized them to act (1); on the other hand, a corporation must be described in all legal proceedings by their corporate name (m) (550). The statute 3 & 4 W. 4, c. 42, sect. 12, authorizes the plaintiff to declare against a defendant upon a bill or note, or other written instrument, by the same initial or contraction of christian name used therein. But where there are several plaintiffs or defendants, whose names have been once described, it is sufficient and proper, when the names are numerous, afterwards to adopt the word "plaintiffs” or “defendants,” without again enumerating all the names (n). But accuracy must be observed; for if in an action at the suit of several persons, the word plaintiff in the singular, be used in stating the debt, instead of plaintiffs, the defendant may demur specially (o), though it would be otherwise if the mistake merely occurred in the commencement. *We have seen when the declaration may [ *287] vary from the process in the name of the defendant, or may describe him with the alias dictus (p). In declarations upon contracts, it should be expressly (e) Ante, 267, 273. (d) Ante, 268; Plowd. 84; Co. Lit. 303 a; I N. R. 173. (e) Com. Dig. Pleader, C. 18 to C. 27; Tidd, 9th ed. 451. (f) Ring v. Roxbrough, 2 Crom. & Jer. 418; 2 Tyr. 468. (g) 2 Salk. 636; 1 Stra. 621; Com. Dig. Pleader, C.; Andr. 282. When the proceedings were by original, and the writ recited in declaration, it was otherwise, 1 Wils. 99; Barnes, 452; 2 Wils. 203. 170. { And actions, proper christian and Seeley v. Schenck, (h) Com. Dig. Pleader, C. 18; see 1 (549) Acc. Bentley and others v. Smith and others, 3 Caines' Rep. to be properly brought, must be commenced and prosecuted in the surnames of the parties, and not in the name of the company or firm. and Denise, Crandall v. Fr. Denny and Co., 1 Penn. Rep. 75, 137. Tomlinson v. Burke et al., 5 Halst. Rep. 295. But in the case of two or more partners of the same surname, if the surname be not added to every christian name, it is not error. Chance v. Chambers, 1 Penn. Rep. 384. In Virginia, however, it has been decided, that a declaration in behalf of a mercantile company, by the name of the firm, without mentioning the names of the partners, is good after a verdict for the plaintiff upon the general issue. Pate v. Bacon et al., 6 Munf. 219. Totty's Ex. v. Donald and Co. 4 Munf. 430. Barnet v. Watson, I Wash. Rep. 372. And see Porter v. Cresson, 10 Serg. & Rawle, 257. As to whether judgment by default could be sustained against a mercantile company-the suit being against the firm-if the names of the partners be omitted in the writ and declaration, sce Scott & Co. v. Dunlap & Co., 2 Munf. 349. } (550) Taylor . Green et al., 7 Halst. Rep. 124. GENERAL REQUI 3. What degree of Certainty is required. III. THE stated by and with whom the contract was made (q); and where there are two or more persons of the same name, they should be distinguished from each SITES, &c. other by the insertion of some appropriate allegation, as "the now plaintiff,” or "the now defendant," or "the said E. F. deceased," &c. (r). In general, however, the neglect thus to distinguish the parties will be aided by intendment, particularly upon a general demurrer, or after verdict (s). But where the plaintiff's name has by mistake been inserted instead of the defendant's, or vice versâ, the declaration will be bad upon special demurrer (1)(551); though it is aided by verdict, or upon general demurrer, by the statute of jeofails (u); and if the part of the declaration in which the mistake of the parties has occurred can be treated as surplusage, then no advantage can be taken even by special demurrer (x). But it has been decided that the statutes of jeofails do not extend to the names of third persons (y); and a plea of judgment recovered, stating that in the former suit the plaintiff impleaded the defendant in a plea, &c. to the damage of the "defendant," is bad on general demurrer (z). When the debt arose on record or specialty, it was formerly usual to state as well in the writ as declaration the defendant's description in the record or specialty under an alias dictus, but this is no longer the practice (a). Time, certainty in statement of. 2dly. The declaration in personal actions must in general state a time when every material or traversable fact happened (b), and whenever heretofore a venue was necessary, time must also have been mentioned (c)(552). The statement of the real or precise time, however, is not necessary (553) even in crim[*288] inal cases(d), unless it constitute a *material part of the contract, &c. declared upon, or unless the date, &c. of a written contract or instrument is professed to be described (e); and except in ejectment, in which the demise must be stated to have been made after the title of the lessor of the plaintiff (554) and his right of entry accrued (f). And in stating that a deed, bill, or a promissory note, &c. "bears date" on a certain day, or in describing an usurious (q) Ld. Raym. 899; Com. Dig. Action on the Case for Assumpsit, H. 3, Pleader, C. 13, post. (r) Wils. 386; Cro. Eliz. 267; Com. Dig. Pleader, C. 18. (s) Id. ibid.; 1 N. R. 172. (t) 1 B. & P. 59; Willes, 8. (u) 16 & 17 Car. 2, c. 8; 4 Anne, c. 16; (x) Ante, 265, 266; 4 Moore & Scott, 417. (z) 7 Taunt. 271. (a) 1 Saund. 14 a, n. 1. (b) Ring v. Roxbrough, 2 Crom. & Jerv. 418; 2 Tyr. 468. (c) Per Buller, J., 5 T. R. 620, 624, 625; Com. Dig. Pleader, C. 19; Plowd. 24; 14 East, 291; Steph. 2d edit. 343. (d) Id.; 1 Saund. 24, n. 1; Co. Lit. 283 a; 2 Saund. 5, n. 3, 259, n. 2; Hawk. Pl. Cr. B. 2, c. 25, s. 81; 5 Taunt. 765; 2 Moore, 91. (e) 4 T. R. 590; 10 Mod. 313; 2 Campb. 307, 308. (ƒ) 2 East, 257; ante, 216, 221. (551) If a plaintiff have the same christian name as a defendant, and the declaration, after stating the names of each party correctly, and at full length, use the christian name only, as, "the said James being in custody," it is certain to a common intent, and good on special demurrer. Hildreth v. Hawes, July, 1801, M. S. Kent, C. J., cited 3 Caines' Rep. 170, note, 2d edit. (552) Vide Denison and others v. Richardson, 14 East's Rep. 300, 301. Phillips' Ev. 164. (553) Vide Phillips' Ev. 164. The United States v. Vigol, 2 Dall. 346. Cheetham v. Lewis, 3 Johns. Rep. 43. Tiffany v. Driggs, 13 Johns. Rep. 253. The text, in the fourth (554) Vide Van Alen v. Rogers, 1 Johns. Cas. 283. GENERAL gree of contract where time is the very gist of the matter, the real day must be truly III. THE stated (g)(555). In general, the day on which a promise is laid to pay a bill of exchange is not material, unless it be expressly alleged to have been its SITES, &c. date (h); and it is no objection that the day of the promise appears to have 3dly. been more than six years before the commencement of the action. Thus in What deassumpsit upon a contract, the day upon which it is made being alleged only certainty for form, the plaintiff is at liberty to prove that the contract, whether it be ex- is required. press or implied, was made at any other time (i). And where it is not essential that the day laid in the pleading should accord with the truth, it is not material that the time stated be so distant, that in fact the parties could not have then been alive (k), if in point of law there is no intrinsic impossibility that the time laid is correct (1). So in an action against the acceptor of a bill payable after sight, an allegation that it was accepted on the day of the date will be proved, though it appear that it was accepted on a subsequent day (m). And an allegation in case by a reversioner that his tenant was, "and still is," possessed of the land, is supported by proof that at the time of the injury the tenant occupied; and a subsequent change of tenancy is not material (n); so that the words "and still is," being immaterial, may be rejected as surplusage. *A deed also may be stated in pleading to have been made on a day [*289] different from that on which it bears date, provided in such case the words "bearing date," &c. be omitted (o), and it be merely stated that "on, &c." the deed was made. So in an action on a bill or note, though it be payable at a particular time "after date," it is not necessary to describe the instrument as "bearing date" on a given day; it suffices to state that "heretofore, to wit, on, &c." it was made, &c.; and the Court said they would intend that the date of the instrument was the day on which it was alleged to have been made (p). So in trespass the time is not material (q); and where several trespasses are stated to have been committed on divers days and times between a particular day and the commencement of the action, the plaintiff is at liberty to prove a single act of trespass anterior to the first day; though he cannot give in evidence repeated acts of trespass, unless committed during the time stated in the declaration (r). When in one continued sentence, or in (g) Cowp, 671; 2 Stra, 806; 10 Mod. 313; 3 T. R. 531; Steph. 2d ed. 345. (h) Hawkey v. Borwick, 1 Younge & Jerv. 376, (i) 2 Stra, 806; 10 Mod, 313; 1 Younge & Jerv. 376. (k) Atkins v. Warrington, 7th June, 1827, K. B. before the three judges, MS. Decla ration in assumpsit on the common counts; 1st, stated that defendant heretofore, to wit, on the 1st day of November, A. D. one thousand eight (omitting hundred) and 26, at London, was indebted, &c. and afterwards stated "on the day and year aforesaid; " special demurrer, assigning as cause that the time mentioned was nonsensical and absurd, and no year was mentioned; and joinder. Chitty for plaintiff, and Watson for defendant, Bayley, J., held this to be no ground of demurrer, first, because the VOL. I. year A. D. 1826 was clearly intended, for as (1) Steph. 2d edit. 344; see 2 Saund (r) 1 Saund. 24, note 1; 1 Stark, R. 351, (555) Vide Harris v. Hudson, 4 Esp, Rep, 152, |