IV. ITS PART & 1. Com necessity to describe parties as suing or being sued in any special character it is advisable not to do so, and an inaccurate description of the party' interest will sometimes be fatal: as where A., B. and C., having been appointed assignees under three separate commissions of bankrupt, sued as joint assignees, mencenot stating their several and respective interests in the declaration, it was held ment. fatal (i). In the second volume of Precedents, the several most usual forms of declaration by and against persons suing and being sued in particular rights or characters will be found (k). The most salutary rule of Hil. Term, 4 W. 4, reg. 21, orders, " That in all actions by and against assignees of a bankrupt, or insolvent, or executors, or administrators, or persons authorized by act of parliament to sue or be sued as nominal parties, the character in which the plaintiff or defendant is stated on the record to sue or be sued shall not in any case be considered as in issue, unless specially denied." of com declara As many of the ancient or preceding forms of commencing declarations The preswere the results of the then prevalent forms of mesne process, it followed that ent forms when the uniformity of process act, 2 W. 4, chap. 39, abolished those pro- mencecesses and introduced new writs, that it became necessary or expedient to in- ments of vent new forms of commencements, and accordingly the judges, after that tions in enactment, promulgated a rule ordering that every declaration should be enti- personal tled at the top or head (and not by indorsement on the back) of the proper commenced Court; secondly, that every declaration and subsequent pleading should be in one of the superientitled of the very day when it is delivered or filed: and Reg. Gen. Mich. T. 3 W. 4, reg. 15, prescribed four forms of commencing a declaration, first, up- (1). on a summons, as thus: In the No. 1.-Declaration after Summons. On the day of - A. D. Venue.-A. B., by E. F. his attorney, [or, "in his own proper person,"] complains of C. D. who has been summoned to answer the said A. B. For that, &c. No. 2.-Declaration after Arrest where the Party is not in Custody. In the On the day of - A. D. Venue.-A. B., by E. F. his attorney, [or, "in his own proper person,"] complains of C. D. who has been arrested at the suit of the said A. B. For that, &c. No. 3. Declaration where the Party is in Custody. Venue.-A. B., by E. F. his attorney, [or, "in his own proper person,"] complains of C. D. being detained at the suit of A. B. in the custody of the sheriff, [or," the Marshal of the Marshalsea of the Court of King's Bench, or the Warden of the Fleet."] (i) Ante, 27. (k) Post, vol. ii. (1) See fully as to the points of practice respecting declarations, 3 Chitty's Gen. Prac. 429 to 496. actions or Courts IV. ITS PARTS, &c. 4thly. The Com mencement. Conclu sion. No. 4-Declaration after the Arrest of one or more Defendant or Defendants, and where one or more other Defendant or Defendants shall have been served only and not arrested. Venue.-A. B., by E. F. his attorney, [or, "in his own proper person,"] complains of C. D. who has been arrested at the suit of the said A. B. [or, "being detained at the suit of the said A. B., &c. as before,"] and of G. H. who has been served with a writ of capias to answer the said A. B., &c. No. 5.-The Reg. Gen. Hil. T. 4 IV. 4, rule 20, prescribes the following form of commencement of the declaration when a Plaintiff declares in a second action after a plea in abatement of non-joinder of another party liable to be sued. Venue.—A. B., by E. F. his attorney, [or, "in his own proper person,”] complains of C. D. and G. H. who have been summoned to answer the said A. B., and which said C. D. has heretofore pleaded in abatement the non-joinder of the said G. H., &c. [The same form to be used mutatis mutandis in cases of arrest or detainer.] These and other forms of commencements of declarations since the uniformity of process act, 2 W. 4, c. 39, will be found in the second volume, [English edition.] Where the action has been removed into one of the superior Courts from an inferior Court, or is in the mixed action of ejectment, the commencement is to continue in the same form as before the new rules, and the defendant is to be in K. B. as in custody of the Marshal, and in C. P. that the defendant had been attached or summoned, and in the Exchequer the plaintiff is then to be still described as debtor to the king; and therefore it is no ground of special demurrer that the declaration describes the defendant as in the cus tody of the marshal, but if untrue, can only be an irregularity, and taken advantage of as such (...). The Reg. Gen. Trin. T. 1 W. 4, seems to prescribe as the usual conclusion in all the Courts, the following: "to the plaintiff's damage of £—, and thereupon he brings suit, &c." But in penal actions, when no damages are recoverable, the ad damnum should be omitted as heretofore (n). Pledges to The Reg. Gen. Mich. T. 3 W. 4, reg. 15, directs that the statement of be omitted. pledges to prosecute shall be discontinued. Conse deviations In general the non-observance of either of the preceding express rules, quences of although relating to and affecting the forms of pleading, cannot (except in the instance of the statement of abuttals) be taken advantage of by demurrer as rules, viz. a defect in pleading; but must, if at all, be objected to by a summons and that they from such are only (m) Commercement of declaration, stat grounds of demurrer. removed from inferior Courts, and the Court will presume in favor of its jurisdiction, Dod r. Grant, K. B., H. T. 1836, January 15th. (n) Neal v. Richardson, 2 Dowl. 89. † See American Editor's Preface. IV. ITS PARTS, 4thly. The Com mence order of a judge, to set aside the proceeding for irregularity (o). Thus, although the above rules expressly require a declaration to be entitled of the day and month when it is delivered, yet it has been decided that the omission of such date is not a ground of demurrer (p); and although the statute, 2 W. 4, c. 39, requires that the form of action shall be expressed in the writ, and it ment. seems that the declaration should accord, yet if it vary, such variance is not a ground of demurrer, (partly so because a writ cannot now appear on the face of the pleadings or record); and it can only be objected to by summons or motion for irregularity to set aside the declaration on account of such deviation (q). So, if the commencement of a declaration at the suit of an executor be improperly in the debet and detinet, instead of more properly the latter only, the objection is not a ground of demurrer as part of the declaration, but may be rejected as surplusage (r). So the improper insertion or repetition of venue in the body of a declaration, contrary to the above rule, Hil. T. 4 W. 4, r. 8, is not a ground of demurrer, but merely of a summons to strike out the objectionable repetition (s); and although it would be absurd for any practitioner to neglect strict observance with the recent rules, yet it is obvious that it could never have been the intention of the judges that the unnecessary insertion in the body of a declaration of a venue should be constantly the subject of a summons to strike out those words, which would occasion much more expense, and be infinitely more vexatious than the introduction of those few words (1). The modes of taking advantage of informalities in the title or commencement of a declaration is perhaps matter of practice rather than of pleading, and have been fully considered as such in another work (u). AFFECT 5thly. After the Commencement of the declaration, the Body or statement of THE REGU the cause of action follows in natural order, and which in every description of LATIONS action consists of three principal points, viz. the right, whether founded upon ING THE contract or tort independent of contract; the injury to such right; and the BODY OR consequent damages. In stating such of these, all the requisites of certainty STANCE OF and other points before noticed must be observed. SUB DECLARA- 5thly. The body or substance Keeping in view and subject to those general requisites, every pleader was, GENERAL. before the very recent pleading rules, at liberty to frame the body or substance of every declaration in such order and language as he might consider preferable. He was not however allowed vexatiously to insert any superfluous, of cause of impertinent or extraneous matter, as in an action on a mortgage deed, a long description of the mortgaged premises (x), or covenants, of which no breach The lan (0) And see per Tindal, C. J., in Anderson v. Thomas, 9 Bing. 678. (p) Neal v. Richardson, 2 Dowl. 89. (q) Thompson v. Dicas, 2 Dowl. 93; Scrivener v. Watling, 1 Harrison, S; Ward t. Tennison, 1 Adol. & El. 619; Edwards D. Dignam, 2 Cr. & M. 346; 2 Dowl. 240, S. C.; Chit. Gen. Prac. vol. iii. 197; and see Marshall v. Thomas, 3 Moore & S. 98; and Anderson v. Thomas, 9 Bing. 678; Tidd, Supp. A. D. 1833, p. 122. action. guage of description to be (r) Collett v. Collett, 3 Dowl. 211. (s) Farmer v. Champneys, 1 Crom. M. & observed Ros. 369; 2 Dowl. 680, S. C.; Fisher v. in genera. Snow, 3 Dowl. 27; Townsend . Gurney, id. 29. (4) Per Cur. in Brindley v. Bennett, 2 IV. ITS PARTS, &c. cause of action. was assigned, and if he did so, or inserted numerous counts substantially alike, the Courts, in virtue of their general jurisdiction, might, on summons or mo5thly. The tion, order the unnecessary matter to be struck out (y). But however superfluous or unnecessary the matter or count may be, that affords no ground of demurrer, and can only be objected to by application to strike out the same (2). With a view to compel greater conciseness, some recent rules materially control and limit the length of declarations. The Reg. Gen. Trin. T. 1 W. 4,† prescribes forms and length of declaration in assumpsit or debt on bills of exchange and promissory notes, and for common debts recoverable in indebitatus assumpsit, thereby very considerably reducing the length of such declaration (a); and the judges certainly intended that the particular forms there given should be considered not as mere limited examples, but as models of conciseness to be observed and extended to all other cases (b). From this also it is to be inferred that quantum meruit and quantum valebant counts shall no longer be adopted (b). The Reg. Gen. Hil. Term, 2 W. 4, reg. 71,† deprivcosts of issues and pleadings upon which he does not succeed, had a strong tendency to prevent the introduction of useless counts, pleas and issues, or even of any useless allegations. The Rules W. 4, reg. ing every party of the At length the Reg. Gen. Hil. T. 4 W. 4,† reg. 5, 6 and 7, imperatively proHil. T. 4hibited the use of several counts or pleas, unless a distinct subject matter of 4, 5, 6, complaint or defence is intended to be established in respect of each. The prohibit- student and every practitioner must constantly consult those rules, as any decounts, &c. Viation might be fatal (c). ing several Other inci ments, as cases where there on the face of the Independently of the particular and precise operation of each of these dental im- rules, it has recently become the practice in declaring for the breach of a conprove. tract to pay money, or deliver goods, or perform works, in admissions has been a part performance, expressly to admit the same on face of declaration, by which means the plaintiff having himself justly limited his claim to his real demand, the defendant is thus deprived of all pretence for part pay pleading the part payment or partial performance, and the costs of the useless part per- pleading and evidence relating to such part performance is thus saved (d), and formance. this mode of declaring is particularly desirable when the part performance declara tions of ments or I. IN AS SUMPSIT. would take the case out of the statute against frauds, or statute of limitations. Having thus considered the recent rules as they affect the body or substance of declarations in general, and the prohibitions against second counts, we will proceed to consider in detail the requisites of declarations in each form of action in particular as, 1st, In Assumpsit; 2dly, Debt; 3dly, Covenant; 4thly, Detinue; 5thly, Cuse; 6thly, Trover; 7thly, Replevin; 8thly, Trespass. In Assumpsit, the statement of the casue of action is either special or gene (y) Id. ibid.; 3 Chitty's Gen. Prac. 638 to (z) Gardner v. Bowman, 4 Tyr. 412. (c) See these rules, Jervis' Rules, 99 to 103; and the cases thereon, 3 Chitty's Gen. Prac. 479 to 485. (d) See Bosanquet's New Rules, 50, note 48, 86 to 88; 3 Chitty's Gen. Prac. 475 to 489, and see forms, post, vol. ii. † See American Editor's Preface. ral. Such of the forms of special counts in assumpsit as most frequently oc- IV. ITS cur in practice are given in the second volume. PARTS, &C. action. When or not a spe cial count is requisite or proper. [*317] In general, where the claim is merely of a pecuniary nature, and is founded 5thly. The on a past or completed or executed consideration, it is sufficient to declare cause of upon the common indebitatus counts (e). There are, however, many occa- 1. In assions in which, although it may not be strictly necessary, yet it is judicious to sumpsit. insert a special count in the declaration; for instance, upon a written contract to build a house, if the work has been performed, and the reward was to be paid in money, the common *counts for work and materials would suffice; but if the plaintiff declare specially, and set out the written contract, and the defendant suffer judgment by default, or pay money into Court generally, the contract, and all material allegations as stated in the declaration, would be thereby admitted, and no objection could be raised on account of the want of a stamp. In many instances, as in actions against agents for not accounting for goods or the proceeds of goods entrusted to them, or for not using due care in selling, &c. (f) the declaring specially for unliquidated damages will exclude a tender or a set-off (ƒ), or even the defence of bankruptcy (g). In these cases a special count is advisable, although the chief part of the plaintiff's demand may be recoverable upon the common counts. But where neither these, nor any other satisfactory reason for introducing a special count can be adduced, and the cause of action may be proved upon a common count, the latter alone should be used; as where goods have been sold and delivered, and the credit or time for payment has elapsed, then a special count would be improper. Where a declaration consisted of one special and several general counts, and to the special counts there were several special pleas, and to the general counts the general issue was pleaded, and the plaintiff entered a nolle prosequi as to the special count, and joined issue on the others, it was held that he was entitled to recover on the general counts; although the matters proved might have been given in evidence and investigated on the special count and the pleas thereto (h). In considering the rules to be observed in the structure of special counts in assumpsit, six points are principally to be attended to, viz: 1st, The inducement; 2dly, The consideration of the contract; 3dly, The contrac! itself (j); 4thly, The necessary averments; 5thly, The breach; and 6thly, The damages. Usual parts of a special count in assumpsil (i). An Inducement, in an action of assumpsit, is in the nature of a preamble, 1st. Of the stating the circumstances under which the *contract was made, or to which (e) See post as to the common counts. (f) See 1 Esp. Rep 380; 5 B. & Ald. 93; 3 Campb. 329. But it seems that if on the special count the plaintiff prove a cause of action, the whole of which is also provable upon the common counts as a debt, the set-off is not excluded, 4 Campb. 385. (g) Ante, 241, (h) 1 M. & M. 311, (i) See the form and parts, ante, 291. Induce- |