FACTS. Of the certainty required. II. MODE OF ed for sums he received in any particular capacity from time to time, it is STATING Sufficient to allege generally that from time to time he received divers sums, amounting to a certain sum, not stating on what particular days, or from named persons, and hath not accounted, &c. (d). As there are many instances in which this rule does not apply, especially in jurisdictions of slander, and very often in pleas of performance, we will hereafter give the rule further consideration in treating of the particular parts of pleading (e). It will be explained in a subsequent part of the work, that much partic[236] ularity is required in the statement of special damages." When the facts are not really stated with sufficient certainty, the introduction of the word "certain" is of no avail (f). Thus a declaration in debt for a sum of money forfeited "by virtue of a certain bye-law," or" for money due on a certain bond," without stating it, is insufficient (g). So where the declaration stated that in consideration that the plaintiff had sold to the defendant a "certain" horse of the plaintiff, at and for “a certain quantity of certain oil," to be delivered within a "certain time," which had elapsed, though it was holden that the declaration was good after verdict, it was considered that it could not have been supported on demurrer (h). And a justification in trespass, "by virtue of a certain writ," &c. but no setting it forth, is insufficient (i) (1). So the words duly," "lawfully," "sufficient," &c. without showing the matter of act with convenient certainty, are seldom of avail in pleading (k) (2). So a plea justifying an imprisonment, on the ground of a suspicion of felony should state the grounds of suspicion, and the averment, that the plaintiff suspiciously" did such an act, is not sufficient (1). But in some cases the wrong complained of, without showing the particular acts, may be sufficient to designate that to be a crime or injury, which might otherwise stand indifferent; as in an action on the case for unlawfully procuring a wife to leave her husdand (m). The want of certainty (n), and an ambiguous expression in a declaration (0), are cured by verdict. 66 66 To these rules affecting the mode of stating facts, may be added the following, which are ably collected and observed upon by Mr. Serjeant Stephen, in his valuable work on Pleading (p); viz. that pleadings must (d) 1 B. & P. 640; 8 T. R. 459; 2 Burr. be made under the hands of referees, an aver772; Stephen, 2d ed. 402. (e) Vide Index, "Certainty." (f) 13 East, 102. As to the word "reasonable," 3 Bing. 61, 67. (g) 1 B. & P. 98, 102; see 2 B. & P. 120; 13 East, 116. (h) 2 B. & P. 265. (2) 1 Saund. 298, note 1. (k) 9 Co. 25 a; 1 Burr. 540; Dougl. 79; 7 B. & C. 468; 8 Id. 124. In an action on a bcnd conditioned to perform an award to ment that they "duly made their award," is not sufficient. Everard v. Patterson, 6 Taunt. 645; 2 Marsh. 304, S. C.; see 16 East, 39; 7 B. & C. 800. (1) 4 Taunt. 34; 2 Bing. 523; Steph. 2d ed. 386, 387. (1) Sed vide Bennet v. Pikley, 7 Johns. 249. (2) So, in false imprisonment, the defendant attempted to justify the arrest on a suspicion of forgery, and stated in his plea that the plaintiff was suspiciously possessed of a note, and disposed of it in a suspicious manner, and in a suspicious manner left England and went to Scotland: the plea was held too general, and that the causes of suspicion ought to have been set forth in certainty. Mure v. Kaye, 4 Taunt. 34. See also Van Ness 2. Hamilton, 19 Johns. 349. II. MODE OF STATING Of the not be insensible (9) or repugnant (r); nor ambiguous or doubtful in meaning (8); not argumentative (t); nor in the alternative. However, the recent pleading rules of Hill. T. 4 W. 4, reg. 1. permit in one case an alternative allegation, as that several named "persons, or some or one of certainty them were, or was," interested in the property insured by a policy of in- required. surance, which exception was introduced in order to avoid several counts varying the statement of the interest in the subject insured (u). The other are rules, that pleadings must not be hypothetical (v) ; nor by way of recital, but positive (x), and that things should be stated according to their legal effect or operation (y). These rules, indeed, will be more fully considered hereafter in those parts of the work which treat of the qualities of declartions and the other parts of pleading in particular. III. THE RULES OF CONSTRUING PLEADINGS. OF CONSTRUCTION. It is a maxim in pleading, that every thing shall be taken most strongly III. RULES against the party pleading (2), or rather, that if the meaning of the words be equivocal, and two meanings present themselves, that construction shall be adopted which is most unfavorable to the party pleading (a); because it is to be presumed that every person states his case as favorably to himself as possible (b) (1). But in applying this maxim, the other rules must be kept in view, and particularly those relating to the degree of certainty or precision required in pleading (c). The maxim must be received with this qualification, that the language of the pleading is to have a reasonable (1) Com. Dig. Pleader, C. 23; 1 Salk. 324; Vin. Ab. Nonsense, A. pl. 3; see however, ante, 229. (r) See ante, 231. (s) Co. Lit. 303 b; Yelv. 36; 2 H. Bl. 530; 6 M. & Sel. 38; 1 Bar. & Cress. 297; 3 Id. 192; and also examine, Stephen, 2d edit. 421. Thus in trespass, a plea that the close was defendant's freehold, not stating "at the time of the trespass," is bad. Com. Dig. Pleader, E. 5. (1) Bac. Ab. Pleas, &c. I. 5; Com. Dig. (E. 3); Co. Lit. 303 a; 5 B. & A. 215. In trespass de bonis asportatis a plea that plaintiff never had any goods is bad. Doct. pl. 41; Dyer, 43 a. Other instances, Stephen, 426, 2d ed.; 10 East, 205. (u) Reg. Gen. Hil. Term, 4, W. 4. Pleadings in Particular Actions, reg. I. (v) 1 B. & P. 312; 3 M. & S. 114; Steph. 430, 2d ed. If "any" is bad on special demurrer, Gould v. Lashbury, 4 Tyr. 863. Therefore a plea to assumpsit for goods sold and delivered and on an account stated, that the defendant was discharged from the causes of action in the declaration mentioned, if any such there were, was held bad on special demurrer, as hypothetically plead ed, and as not directly confessing and avoid- (2) Bac. Ab. Pleas, &c. (B); 4 Steph. 1st (y) Bac. Ab. Pleas, &c. 1, 7; Com. Dig. Pleader, C. 37; 2 Saund. 97 b, n. 2; 1 Id. 235 b. note 9; 3 B. & A. 66; Steph. 1st ed. 389; 2d ed. 432. (2) 1 Saund. 259, note 8; 2 B. & P. 155; Co. Lit. 303 b; Yelv. 36; 2 Hen. Bla. 530; 5 M. & S. 38, 40; Stephen, 1st ed. 379; 2d edit. 421; and cases there collected. (a) Per Buller, J., 2 Hen. Bla. 530; 6 B. & C. 302; Steph. 2d edit. 421. Instances of this in a plea, id. and post. (b) Co. Lit. 303 b. Per Parke, B., in Pearce v. Champneys, 4 Dowl. 276. The same rule holds in construing deeds, &c.; Platt on Cov. 141. (c) Ante, 233, as to rule of reddendo singula singulis, see 2 Campb. 139. (1) Fuller v. Hampton, 5 Conn. 422, 423. III. RULES OF CONSTRUCTION. intendment and construction (d) (1); and where an expression is capable of different meanings, that shall be taken which will support the declaration, &c. and not the other, which would defeat it (e). Thus, in debt on bond, conditioned to procure J. S. to surrender a copyhold "to the use of the [238] plaintiff," a plea that J. S. surrendered and released the copyhold to the plaintiff in full Court, and that the plaintiff accepted it, without alleging that the surrender was "to the plaintiff's use," is sufficient; for this shall be intended (f). So in debt on bond, conditioned that the plaintiff shall enjoy certain land, &c. a plea, that "after the making of the bond until the day of exhibiting the bill," the plaintiff did enjoy, is good, though it be not alleged that continually during that time he enjoyed; for this is intended (g). But the matter must be capable of different meaning; for the Court cannot, in order to support the proceeding, in which the particular term occurs, arbitrarily give it a meaning against which the use, habits, and understanding of mankind would plainly revolt (2). But if it be clearly capable of different meanings, it does not appear to clash with any rule of construction, applied even to criminal proceedings, to construe it in that sense, in which the party framing the charge must be understood to have used it, if he intended that his charge should be consistent with itself (h). Every indictment, &c. ought to contain a complete description of such facts and circumstances as constitute the crime, &c. without inconsistency or repugnancy but except in particular cases where precise technical expressions are required to be used, there is no rule that other words shall be employed than such as are in ordinary use, or that in indictments or other pleadings a different sense is to be put upon them than what they bear in ordinary acceptation. And if, where the sense may be ambiguous, it is sufficiently marked by the context, or other means, in what sense they were intended to be used, no objection can be made on the ground of repugnancy, which only exists where a sense is annexed to words which is either absolutely inconsistent therewith, or being apparently so, is not accompa nied by anything to explain or define them. If the case be clear, nice exceptions ought not to be rgarded (i). It is also a rule relating to the mode of stating facts, and the form of the pleading on either side, that the Court are ex officio bound after verdict to give such judgment as appears upon the whole record to be proper, without regard to the issue found or confessed, or to any imperfection in the prayer of judgment on either (d) Com. Dig. Pleader, C. 25; 1 Lev. (e) 4 Taunt. 492; 1 Salk. 325; 5 East, (1) Vide Hastings v. Wood, 13 Johns. 482. (2) And this is the rule in regard to actions for words, either spoken or written, that the court is to understand them according to their ordinary acceptation among mankind. Backus v. Richardson, 5 Johns. 584; Woolmoth v. Meadows, 5 East, 463; Roberts v. Camden, 9 East, 93; Respublica v. De Longchamps, 1 Dall. 114; Rue v. Mitchell, 2 Dall. 59; Brown v. Lamberton, 2 Binn. 37; Pelton v. Ward, 3 Caines, 76. See the subject very fully discussed, Walton v. Singleton, 7 Serg. & Rawle, 449. But still the meaning of the words must be unequivocal. Harrison v. Stratton, 4 Esp. 218. STRUCTION. side (k) (1); and on the same ground we shall hereafter see, that when there III. RULES is a demurrer to a plea, replication, &c. if the prior pleading be defective OF CONin substance, judgment will be given against the party pleading it. After verdict, an expression must be construed in such sense as would sustain the verdict (1): and although in general in pleading, an equivocal expression is to be construed against the party using it, yet where the opposite party has pleaded over, that is an admission that the expression is to be taken [ *239 ] in that sense which will support the previous pleading (m). Words of reference, as "there" and "said" in an indictment, will not be referred to the last antecedent where the sense requires that they should be referred to some prior antecedent (n). IV. THE DIVISION OF PLEADINGS. OF PLEAD- The parts of pleading have been considered as arrangeable under two IV. DIVISION heads; first, the regular, being those which occur in the ordinary course of a suit; and secondly, the irregular, or collateral, being those which are occasioned by mistakes in the pleadings on either side (o). The regular parts are, 1st. The declaration or count.-2dly. The plea, which is either to the jurisdiction of the court; or in suspension of the action, as in the case of parol demurrer; or in abatement; or in bar of the action or in replevin, an avowry or cognizance.-3dly. The replication; and in case of an evasive plea, a new assignment; or in replevin, the plea in bar to the avowry or cognizance.-4thly. The rejoinder; or in replevin, the replication to the plea in bar.-5thly. The surrejoinder, being in replevin the rejoinder.-6thly. The rebutter.-7thly. The sur-rebutter.-And 8thly, Pleas puis darrein continuance, where the matter of defence arises pending the suit. The irregular or collateral parts of pleading are stated to be (p), 1st. Demurrers to and part of the pleadings above-mentioned.-2dly. Demur rers to evidence given at trials.-3dly. Bills of exception.-4thly. Pleas in scire facias. And 5thly. Pleas in error. The particular nature of each of these parts of pleading, together with the claim of conusance, demand of oyer, and imparlances, &c. will be considered in the following chapters. (k) 4 East, 502; 5 Id. 270, 271; 10 Id. 87. (1) 1 B. & C. 297; Cowy. 825; 6 B. & C. 302, 303. (m) Wright v. The King, 3 Nev. & Man. 892. (n) 6 B. & C. 295. (0) Vin. Ab. Pleas, &c. C.; Bac. Ab. Pleas, &c. A. (p) Vin. Ab. Pleas, &c. C. (1) Vide Havens v. Bush, 2 Johns. 387; King v. Harrison, 15 East, 614, 615. These rules will be fully explained hereafter. *CHAPTER IV. Of the Declaration (a). 1. DEFINITION AND DIVISION OF SUBJECT. II. THE RECENT REGULATIONS AFFECTING THE FORM OF DECLARATIONS. IV. THE FORMS AND PARTICULAR PARTS AND REQUISITES OF DECLARA- I. DEFINI- DIVISION OF I. THE DEFINITION AND DIVISIONS OF THE SUBJECT. A DECLARATION is a specification in a methodical and legal form of the circumstances which constitute the plaintiff's cause of actions (b), which SUBJECTS. necessarily consists of the statement of a legal right, or in other words a right recognized in Courts of Law, and not merely in a Court of Equity, and of an injury to such right remediable at law by action as distinguished from the remedy by Bill in Equity. A declaration may conveniently be examined with reference to Secondly, the Recent Alterations, which must be observed in practice in addition to or as variations from the previously established forms; Thirdly to those General Requisites and Qualities which govern the whole declaration in general, and Fourthly to the Forms and Parts and particular Requisites, as will in Assumpsit, Debt, Covenant and Detinue, as in Case, Trover, Replevin, Trespass and Ejectment. 2. The re ations af II. THE RECENT ALTERATIONS AFFECTING DECLARA- Before the uniformity of process act, 2 W. 4, c. 39, their was very cent alter- numerous and perplexing modes of commencing personal actions, viz. by fecting de- original writ issued out of Chancery and returnable in the Courts of clarations King's Bench or Common Pleas, (but not in a Court of Exchequer); in general. by bill of Middlesex or latitat, issued out of and returnable in K. B. by writ of capias quare clausum fregit, issued out of and returnable in the Court of [*241 ] Common Pleas, and by quo minus or venire, issued out of and returnable in a Court of Exchequer; and numerous other writs in each of those Courts by or against attornies or officers of the court and other persons. By one or other of these process, the defendant was always actually or supposed to be brought into Court to answer the plaintiff, and after appearance (a) As to the proper instructions for declarations, and the time when the plaintiff may or must declare, and other practical points, see fully Chitty's General Practice, vol. iii. 429 to 497. (b) Co. Lit. 17 a, 303 a; Bac. Ab. Pleas, B.; Com. Dig. Pleader, C. 7; Heath's Maxims, 1, 2. |