OF STATING the plaintiff declared, and the commencement of the declaration used to state . MODES how or by what process the defendant had then been brought into Court, and consequently the commencements of declarations were infinitely various. The original writ and capias thereon in assumpsit, case and trespass used to state the cause of action as fully as the declaration, with the exception of time and quantity, and therefore formerly special pleaders used to frame the special original writ as requiring as much skill in pleading as the declaration itself. And except in debt and in a few other actions, the declaration used afterwards to recite the writ verbatim, and repeat it in the court with time and enumeration of all circumstances, until at length one of the first of the very recent improvements (c) ordered that a declaration in trespass or ejectment, on a supposed original writ, should no longer recite the writ or supposed writ, but should merely in the commencement state that the defendant was attached to answer the plaintiff" in a plea of trespass" or a "plea of trespass and ejectment," and thereupon the plaintiff by Y. Z. his attorney, complains, &c. setting out the declaration; and this more concise form is still to be observed in a declaration in ejectment on a supposed original in K. B. and C. P., although in personal actions, as the use of an original writ was abolished by 2 W. 4, c. 39, this last rule has now become of no use though it still applies in ejectment. At length the above statute, 5 W. 4, c. 39, having abolished the use of an original writ and of all the other mesne process in personal actions, and substituted several other prescribed forms of writs in personal actions, printed in the schedule to the act, viz. the writ of summons, writ of distringas, writ of capias, writ of detainer, and writ of summons against an M. P. when a trader (d), it became desirable that the judges should, for the sake of uniformity, prescribe new forms of commencing a declaration according to the particular writ that had been issued, and accordingly we find such forms prescribed by Reg. Gen. Mich. Term, 3 W. 4, reg. 15, Mich. T. which orders, "that every declaration shall in future be entitled in the proper Court and of the day of the month and year in which it is filed or to Title of delivered, and shall commence as follows.* Declaration after Summons. Reg Gen. 3 W. 4, as Court and [ *242 ] Prescribed forms of [Venue.]—A. B., by E. F., his attorney, [or, in his own proper per- commenceson], complains of C. D., who has been summoned to answer the said ments, (e). A. B., &c. Declaration after Arrest, where the Party is not in Custody. [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., &c. 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 cus (c) Reg. Gen. Hil. Term, 2 W. 4, reg. 4. (d) The statute provides that the writ of summons shall now be issued as well against ordinary persons as against attornies, officers of the Court, corporations, or hundredors, VOL. I. 35 and privileged persons, excepting when II. MODES tody of the Sheriff, [or, the Marshal of the Marshalsea of the Court of OF STATING Kings's Bench or the warden of the Fleet.] FACTS. Prescribed conclusion of declar ation. Venue in margin but not in body. 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. The Reg. Gen. Hil. T. 4 W. 4, reg. 4, promulgated in consequence of the enactment in 3 & 4 W. c. 42, s. sect. 16, prescribes a particular form of commencing a declaration in a second action that after a plea in abatement of non-joinder in a prior action. From the succinct form of conclusion of a declaration prescribed by Reg. Gen. Trin. T. 1 W. 4, it seems that in all personal actions the form should be thus and without adding any supposed pledges, and the addition of which is expressly prohibited by Reg. Gen. Hil. T. 4 W. 4. "To the plaintiff's damage of £- and thereupon he brings suit, &c." If the action be at the suit of assignees or executors, &c., then say to the plaintiff's damage "as assignees," or as executors, as aforesaid. And in an action qui tam omit all statement of damage. The Reg. Gen. Hil. T. 4 W. 4, reg. 8, orders that the name of a County shall in all cases be stated in the margin of a declaration, and shall be taken to be the venue intended by the plaintiff, and that no venue shall be stated in the body of the declaration or in any subsequent pleadings, provided that in cases where local description is now required the same shall be given; and a subsequent part of the rules of Hil. T. 4 W. abuttals in 4, requires that in actions of trespass quare clausum fregit, the close or place in which, &c., must be designated in the declaration by name or abuttals, or other description, in failure whereof the defendant may demur specially.* Name or trespass quare clausum fregit. [ *243 ] Conciseness in some and inten extended to all cases. In order to render pleadings in actions of assumpsit, or debt on bills of exchange, inland or foreign, and promissory notes, and for common money forms pre- demands, more concise, Reg. Gen. Trin. Term, 1 W. 4, prescribes cerscribed tain forms of such declaration, and punishes the plaintiff's attorney with ded to be the loss of costs in case the declaration exceed the prescribed length (d). These rules, introduced by Lord Tenterden, were intended not merely to be observed and adopted in the particular cases strictly within the terms of the rule, but to encourage similar conciseness in all other cases. It is to be observed, that the word said, before plaintiff or defendant, is to be omitted, and only the word "promised" is to be used instead of "under took and then and there faithfully promised;""request" instead of “ special instance and request," and numerous other concise expressions, instead of a superfluity of words, which especially when often repeated, when there were numerous counts, considerably augmented the aggregate length of the declaration, and afterwards the issue and nisi prius record. This rule has introduced a practice of conciseness, which it was intended should be extended as much as possible. (d) See the rule and forms, post, vol. ii. FACTS. To put an end to the vexatious practice of incumbering every declara- II. MODE OF tion with numerous varying counts for the same cause of action, the 3 & 4 STATING W. 4, c. 42, sect. 23, gives the judge power, pending a trial, to amend Second a single count in cases of variance, provided the opponent will not thereby counts on be prejudiced in his defence; and as it was considered that thereby the same necessity for second counts was removed, the Reg. Gen. Hil. T. 4 W. cause of 4, reg. 5, prohibits the use of more than one count upon each cause of hibited but action, (though several breaches are permitted), and renders it compulso- several ry on a judge on summons to strike out any such second count, and permitted. compel the plaintiff, and ultimately his attorney, to pay the extra costs, and certain other consequences are declared to attach on a violation of this rule. This is an outline of the principal modern improvements as they affect declarations; each, with its operation, will be particularly pointed out when we consider the parts and particular requisites of declarations. The substance of a declaration, it will be observed, is scarcely in any respect affected, and hence in general the ancient forms and the long established rules will still apply, though every pleader must at the same time take care to conform to the new regulations. And since the uniformity of process act it would be untechnical in a declaration in scire facias or other pleading to state that an action had been commenced by bill, and would subject the declaration to a special demurrer, though aided by pleading over, or by a general demurrer (e) (1).* action pro breaches [ *244] III. THE GENERAL REQUISITES OR QUALITIES. III. THE REQUI The general requisites or qualities of a declaration are, 1st, that it correspond with the process (ƒ), and in bailable actions, with the affidavit to hold to bail; 2dly, that it contains a statement of all the facts necessary SITES, &c. in point of law to sustain the action, and no more (g); and, 3dly, that these circumstances be set forth with certainty and truth (h). The pleader, before he commences drawing a declaration, should have before him a copy of the writ and affidavit to hold to bail, and very full instructions as to the facts of the case, as they can be assuredly proved by evidence already carefully ascertained. Regularly the declaration should correspond with the process (2), but 1st Should as according to the present practice of the Courts, oyer of the writ can- correspond not be craved, a variance between the writ and declaration cannot in any (e) Darling v. Guerney, 2 Crom. & M. 326; 2 Dowl. 235; Peacock v. Day, 4 Dowl. 291. But the same cases established that this objection is not a ground of general demurrer, or arrest of judgment, or error, and is aided by pleading over; contra, 2 (f) Com. Dig. Pleader, C. 13. with pro cess. (1) Vide Reid v. Lord, 3 Johns. 118. As to the form of the original writ in assumpsit against a corporation, see Lynch v. The Mechanics' Bank, 13 Johns. 127. (2) See Gratz o. Phillips, 1 Binn. 588; Jennings v. Cox, ibid; Dilman v. Shultz, 5 Serg. & Rawle, 35. III. THE REQUI cess. case be pleaded in abatement (1) or otherwise; and as there are several GENERAL instances in which the Court will not set aside the proceedings on account TITES; &c. of a variance between the writ and declaration (i) many of the older de1. Should cisions are no longer applicable in practice (2). Formerly in the King's correspond Bench, when the proceedings were by special original, we have seen that with pro- the venue must be laid in the declaration in the county into which the original was issued, or in bailable cases the bail was discharged (k); but in the Common Pleas and in the King's Bench, if the proceedings are by bill, the bail were not discharged by such variance (1); and where on outlawry had been reversed, the plaintiff might in C. P. declare in any county (m). And at length Reg. Gen. Hil. T. 2 W. 4, reg. 40, ordered that a declaration laying the venue in a different county from that mentioned in the process, should not be deemed a waiver of the bail (n). Since the 2 respects at W. 4, c. 39, abolishes proceedings by original, that rule has become of no practical utility. We will consider how far, according to the present practice of the Courts, the declaration must correspond with the process or the affidavit to hold to bail, with respect to, 1st, the names of the parties to the action; 2dly, The number of such parties; 3dly, the character or right in which they sue or are sued; 4thly, the cause and form of action: and under each of these heads the consequences of a deviation from the process will be noticed. In what present. [ *245 ] In names ties (o). of the par 1st, The general rule is, that the declaration should pursue the writ *in regard to the christian and surnames of the parties (3). If a person enter into a bond or deed by a wrong name, he should be sued by such name (4) and it will not be correct to declare against him in his real name, although there be an averment that he executed the instrument by the untrue description (p). The mis-spelling a name is not, however, material, if the two names be of the same sound (q). The reversing or transposing the order of christian names, as "Richard John," instead of " John Richard," was condidered a misnomer, and might have been pleaded in abatement before the 3 & 4 W. 4, c. 42, sect. 11, which abolished pleas of misnomer in abatement, and give a defendant a remedy by summons, to compel the plaintiff to state the correct name in his declaration (r). When bailable process had been issued against the defendant by a wrong name, if he had put in bail above in such name, he was estopped tial, when permitted, id. 164 to 169, 469; by initials or wrong name, after diligent inquiry, id. 165, 166. (p) 3 Taunt. 504; 2 C. & P. 474; 5 B. & A. 682. That the name by which a party signs a deed may be adopted see 1 M. & M. 6; 2 Car. & P. 474, S. C. (a) 10 East, 83; 16 Id. 110; 2 Taunt. 401. (r) 5 T. R. 195. (1) See, however, P v. Bogan, 2 M'Cord, 386; 1 M'Cord, 708; Duval v. Craig, 2 Wheat, 45; 1 Harr. & Gill. 181; Cronly v. Brown, 12 Wend. 271; Prince v. Lamb, Breese, 298; Rust v. Frothingham, ib. 258; Ball v. Bank of Utica, 6 Cowen, 70; Bank of New Brunswick v. Arrowsmith, 4 Halst. 284; Sargent, v. Hayne, 2 Hill, S. C. 588. (2) See Overseers of Roxborough Bunn, 12 Serg. & Rawle, 295; M'Farlan v. Townsend, 17 Wend. 440. The declaration need not recite the writ. Burton v. Waples, 3 Harring. 75. (3) See post 302, note. (4) See Meredith v. Hinsdale, 2 Caines, 362; Wood v. Bulkley, 13 Johns. 486. REQUI SITES, &c. from pleading in abatement, when misnomer was so pleadable, and the dec- III. THE laration might be comformable to the writ (s). And it was held that the GENERAL giving a bail bond by the wrong name, not alluding to the right name, would preclude the defendant from pleading in abatement (t) (1). It has however 1. Should been recently decided that the misnomer of a defendant in bailable process correspond with prorenders it so invalid that the defendant might sue the sheriff for false im- cess. prisonment, and the bail bond is absolutely void, and after verdict the judg ment thereon was arrested (u). If the defendant appeared or put in bail by his right name, the plaintiff might, before the recent regulations, declare against him by such name, stating that he was arrested or served with process by the other, in which case the defendant could not plead the misnomer in writ in abatement (x); nor would the Court set aside the proceedings in such case if the plaintiff declared against the defendant by the right name, without stating that he was arrested or served with process by the other (y). If the defendant did not appear, it was held that the plaintiff could not rectify the mistake in the writ by appearing for him in his right name, according to the statute (z); or by appearing for him in the name by which he was sued, and declaring against him by his right name (a). Though the plaintiff appeared for and declared against the defendant in the wrong name, as mentioned in the writ, that would warrant him in proceeding to judgment and execution, if he omitted to object to the irregularity in due time (b). [ *246] So if a defendant were served with process by a wrong christian name, and afterwards the plaintiff entered an appearance for him and served him with notice of declaration by his right name, and proceed to judgment and execution, the Court would not set aside the proceeding for irregularity, merely on the ground that the defendant had never appeared; because he ought to have objected in due time (c). As the 3 & 4 W. 4, c. 42, abolishing pleas of misnomer in abatement, merely enables a defendant to compel the plaintiff to amend his declaration by stating the real name, that now seems to be the only ill consequence in the mistake of the name in serviceable process, though in bailable process an arrest by the wrong name is a false imprisonment, and the bail bond is void and cannot be sued upon (s) Willes, 461; 2 New Rep. 453; Bac. Ab. Pleas, I. 11; Tidd, 9th ed. 448. (t) 3 Taunt. 505; Tidd, 9th ed. 448; 5 B. & A. 682; but see Willes, 461; 8 Moore, 226; 1 Bing. 424, S. C. (u) Finch v. Cocken and others, 3 Dowl. 678. (x) 3 T. R. 614; 1 B. & P. 645; 2 Wils. 393; 13 East, 373; Tidd, 9th ed. 449. (y) 2 Wils. 393; 12 East, 273; Tidd, 9th ed. 449. (z) 3 T. R. 611; 11 East, 225, 226; 2 New Rep. 132, acc.; 1 B. & P. 405, contra. (b) 2 Stra. 1218; 6 T. R. 234 to 236, 6 (c) 3 East, 167. But it is observed in the notes, that it did not appear in what name the plaintiff entered the appearance. It turned on the waiver of the irregularity, 10 East, 328; 11 Id, 225, 226. (1) If a person enter into a bond by a wrong christian name, and be sued on such bond, he should be sued by the name in the bond, and a declaration against him by his right name, stating that he by the wrong name executed the bond, is bad, and the defendant may avail himself of this objection under the plea of non est factum. Gould v. Barnes, 3 Taunt 504. An action for breach of promise of marriage brought by a feme sole, was compromised by her attorney, after her marriage to another person, by taking the defendant's promissory note, payable to her by her maiden name; the attorney and the defendant being both ignorant of the marriage. In an action by the husband alone, in his own name, upon the note, it was held that it was good, and that he was entitled to recover. Templeton v. Crane, 5 Greenl. 417, |