III. THE GENERAL REQUI eral rules will be better considered when we examine the particular parts of the declaration. It may here suffice to observe that the want of sufficient certainty is generally aided by verdict at common law (s); or even by SITES, &c. the defendant's pleading to the declaration (t), or by demurring to the whole, where only a part of the count is bad (u); but a judgment by default for the plaintiff does not cure the defect of uncertainty in not stating the description and quantity of goods under the statute of jeofails (x).* IV. THE SEVERAL SITES PARTS AND PARTICULAR REQUI As explanatory of the following subdivisions and observations, it may be expedient here to give the form of a declaration in assumpsit containing most of the parts to be commented upon, by way of example. IV. ITS PARTS, &c Title, Title, term. Venue, Com In the King's Bench, [or "C. P." or " Exchequer of Pleas."] On the 12th day of January, A. D. 1836. Middlesex, (to wit). John Noaks, by Y. Z. his attorney, complains of Thomas Stilus, who had been summoned to answer the plaintiff (in an action upon promises.) For that whereas, before and at the time of the making of the promise of the defendant hereinafter next mentioned, the defendant was an attorney, to wit, an attorney of the court of our Lord the King before the King himself. And thereupon heretofore, to wit, on the ment. day of - A. D. ——, in consideration that the plaintiff, at the request of the defendant, would retain and employ the defendant as such attorney, to commence and Body, pros- Induceecute a certain action, to wit, an action at the suit of the plaintiff against one G. H., for the recovery of a certain sum of money, to wit, the sum of £, then claimed by the Considerplaintiff to be due to him from the defendant for fees and reward to be therefore paid to mence ment. ation. Aver ments. the now defendant; he, the now defendant, then promised the plaintiff to observe and Promise, perform his duty as such attorney for the plaintiff in the premises. And the plaintiff saith that he, confiding in the said promise of the defendant, did afterwards, to wit, on the day and year aforesaid, at the request of the defendant, retain and employ him as such attorney to commence and prosecute the said action against the said G. H. in the Court of K. B. at Westminster, for the recovery of the said sum of money, and for fees and reward to be therefore paid to the now defendant, and the defendant then accepted the said retainer and employment, and in pursuance thereof then commenced and prosecuted the said action. And although such proceedings were thereupon had in the same action, that afterwards, to wit, on, &c. a certain issue, [or "issues" if several,] before then joined between the same parties, was about to be tried, according to the course and practice of the said Court, and thereupon it then became and was the Defend Conclu duty of the now defendant as such attorney, and in pursuance of his said retainer and ant's employment, to cause and procure due care to be observed in ascertaining and adducing sufficient evidence to enable and entitle the plaintiff to obtain and recover a verdict in breach. the said action against the then defendant therein; yet the defendant, disregarding his Consesaid duty and his promise in that behalf, did not nor would cause or procure due care to quent be observed in so ascertaining and adducing sufficient evidence to enable or entitle the damage. plaintiff to obtain a verdict in the action against the said then defendant, but wholly neglected and omitted so to do. And by reason and in consequence thereof, and of the care- sion. less and improper conduct of the now defendant in and about the conduct of the said Division action for the plaintiff, afterwards, to wit, on, &c. the plaintiff became and was nonsuited and artherein. And by reason thereof the plaintiff hath been and is greatly delayed and hin- rangedered in the recovery of the said money so claimed by him as aforesaid, and the plaintiff hath incurred and paid, and hath become liable to pay, to the said G. H., divers sums of parts of a money amounting to a large sum, to wit, the sum of £100, as and for his costs of the de- declarafence of the said action. And thereby also the plaintiff hath incurred great trouble and tion in asexpense, to wit, an expense of £100, in and about the said action, which hath been and sumpsit. is by means of the said negligence and improper conduct of the defendant in the premi- [263] ses become abortive and unproductive as aforesaid. To the damage of the plaintiff of and thereupon he brings suit, &c.* (s) 2 B. & P. 265; N. R. 172; 2 Saund. 74 b; 1 Saund. 228 a; ante, 256. (t) 2 Saund. 74 b; 6 B. &c. C. 295; ante, 256. (u) Saund. 379, 380; Com. Dig. Plead. C. 32. (x) 4 Anne, c. 16; 7 Taunt. 642; 1 Moore, 386, S. C.; 5 Bar. and Ald. 712. But see the late case, 8 Moore, 379, making this questionable. ment of IV. ITS We will consider the above form, and its several parts, and those of a PARTS, &c. declaration in general, under the following heads, viz. 1. The title of the Declaration as to the Court. 2. The title of the Declaration as to the Time when it is filed or delivered. 3. The venue in the margin. 4. The commencement. 5. The body. Inducement. Consideration. Promise. Averments. 1st. Title of the Court in practice. Breach. Consequent damages. 6. The Conclusion. 7. The Profert of Deeds, Probates, and Letters of Administration, &c. 8. The statement of pledges to be discontinued. 9. Other miscellaneous points. 1. Title of Court formerly. In the King's Bench, when the proceedings were by bill, the declaration was entitled with the name of the prothe former thonotary or chief clerk, (now "Ellenborough,") for enrolling pleas in civil causes, depending between party and party, on the plea side of the Court, and particularly so when by bill (y). When the proceedings were by original, the declaration was usually entitled," In the King's Bench;" and in the Common Pleas and Exchequer, the name of the Court was superscribed, as in a declaration by original in the King's Bench. 2d. The claration Former practice as to Term. But now, and since the abolition of the previous varying writs to bring the defendant into Court in personal actions, by the uniformity of process act, 2 W. 4, c. 39, the Reg. Gen. Mich. T. 3 W. 4, I. reg. 15, orders that "every declaration shall in future be entitled in the proper Court, and if that title be omitted or be merely indorsed, the Court will set aside the declaration for irregularity (z). 2. Title as to time. The title of the Term, with reference to the antitle of de- cient proceedings ore tenus, was considered as a statement or memorandum of the time when the plaintiff and the defendant came into Court, and as to time. in form alleged his cause of complaint (a). This could then only be interm time, when the defendant was in Court; consequently a declaration must formerly in general be entitled in term (6). It was also a general rule that the declaration should be entitled of the term in which the writ was returnable, or of that of the defendant's appearance, and if it were [*264] entitled of a subseqent term it was irregular, and a judgment signed for want of plea thereto was also irregular (c). A declaration by bill must regularly have been entitled of or after the day on which the bail had been filed or an appearance entered, because the bill, of which it is a copy, cannot be filed until the bail is put in, which alone in the King's Bench gives the Court jurisdiction, and when by reference to the practice of declaring ore tenus the defendant was in Court to hear the cause of (y) Tidd, 9th ed. 43. (2) Kippling v. Watts, K. B. Mich. T. 1835; Legal Observer, 5 Dec. 1835, p. 86. (a) 1 T. R. 116. (b) The term in the midst of which the king dies, may be entitled in the first year of the succeeding king's reign, 1 Dowl. Rep. 4. (c) 1 Marsh. 341; 3 T. R. 624. IV. ITS 2dly. Title as to time. complaint (d) (1); unless in the case of a declaration de bene esse. Therefore, if there be two defendants, and one of them could not be PARTS, &c. served or arrested on the first process, and he were brought into Court upon another writ, returnable in a subsequent term, the declaration should be entitled of the last term (e). So where one of several defendants had been outlawed, the declaration must be entitled after such outlawry was complete (f); and where a sole defendant could not be served or arrested on process returnable in one term, and an alias returnable in the next was issued, the declaration might and perhaps should have been entitled of the last term (g). In these cases, however, the plaintiff could not upon a declaration in chief give in evidence a cause of action arising after the first term (h); though a declaration by the bye, (now not allowed,) not being founded on the original process, might have been entitled of the second term, and the plaintiff therein might give in evidence a cause of action arising after the first (i) (2). There were formerly many decisions as to when or not a special title was requisite or proper, but which now are useful in explanation of the previous practice (k). mistake in 39, and When on the face of the declaration, entitled generally of the term, it Conseappeared that the cause of action accrued after the first day thereof, the de- quence of fendant might demur specially (7). But it was holden not to be a ground title before of error to entitle the declaration of the term generally, although the dec. 2. W. 4. c. laration showed that the cause of action accrued after the first day of the recent term and during its currency (m). The Court would formerly in any case rules. give leave to amend on payment of costs (n) (3). And it has been holden, that if after verdict it be made to appear upon motion in arrest of judgment that the bill was filed and declaration delivered after the cause of action had actually accrued, "the plaintiff was entitled to judgment without [ *265 ] any amendment, for though the declaration being general, relate prima facie to the first day of the term, yet the bill being filed on a subsequent day, all the subsequent proceedings related thereto by the course and practice of the Court, of which, if error were brought, the Court would ex officio take notice (o); and therefore the general title was aided by reference to the time of filing bail (9) : and in another case it was held that after verdict 202: although not perhaps by any of the pre- (m) 2 Bing. 469; 10 Moore, 194; 1 M'Cle. (n) 7 T. R. 474; 1 Wils. 78; Tidd, 9th edit. 426, 427; 2 Chit. Rep. 22. Amendment not allowed in penal actions, 6 Taunt. 19; 1 Marsh. 419, S. C. (0) 2 Lev. 176; 3 Salk. 9; 1 T. R. 118; 1 Vent. 264; 1 Sid. 373, 432; Bul. N. P. 137; Tidd, 9th edit. 428; ante, 217, 219, (p) 2 Lev. 13, 176; Vent. 135; Bul. N. P. 137, 138; Carth. 114, 115; Tidd, 9th ed. 428. (1) Vide Sabin v. Wood, 10 Johns. 219. IV. ITS PARTS, &C. as to time. the only course was to allege diminution (q). In geneal it is no ground of error upon a judgment of an inferior Court, that the plaint was levied be2dly. Title fore the cause of action accrued (r). By an express provision (8) these objections are aided in the court of Common Pleas at Lancaster. And in trespass, with a continuance after the term of which the declaration was entitled, the Court refused to arrest the judgment (t). If the action were commenced before the cause of it accrued, the defendant might have pleaded that matter in abatement (u). Where the proceedings were entered with a general memorandum of the term, and the cause of action appeared in evidence to have arisen after the first day of the term, the plaintiff would be nonsuited, unless he produced or proved the writ, and thereby showed that it was really sued out subsequently to the cause of action (v) (1). And where in a similar case the trespass complained of was admitted by the defendant's plea of son assault demesne, the Court held it to be well enough, for the plaintiff need not give any evidence on that plea, unless to aggravate damages, and the Court would not nonsuit him, because it was amendable by a new bill (w). The declaration might also be amended in this respect at the instance of the defendant, if necessary for his defence. Thus where the declaration was entitled of the term generally, and the defendant pleaded plene administravit (x), or a tender made before the exhibiting of the bill, upon which he would give in evidence an administration of assets, or a tender made between the first day of term and the day of suing out the writ, it was held that he should either call upon the plaintiff to entitle his declaration properly (y); or should plead the fiction of the Court specially (2), without calling upon the plaintiff to alter his declaration; or should prove or produce the writ on the trial (z). And where the declaration was entitled generally of the term, it was held that the defendant might give evi[266]dence at the trial of the time when it was actually filed in support of the plea, that the cause of action did not accrue within six years next before the exhibiting of the bill (a). But where the plaintiff improperly commenced his declaration with a special memorandum, stating that the bill was exhibited upon a certain day in vacation, the defendant's only course was to move to set aside the special memorandum (b). The present practice as to By the present practice every declaration in a personal action commenc ed in either of the superior Courts, (Reg. Gen. Mich. T. 3 W. 4, reg. the title of 15, and Hill. T. 4 W. 4, reg. 1,) is to be entitled of the day of the month and year when actually filed or delivered. The neglect so to entitle the same would in general only be an irregularity and not a ground even of special demurrer (c), or for a summons to compel plaintiff to state time. as to time. the proper title (d). The date of the writ need not, we have seen, be IV. ITS stated in the declaration, though it must in the issue (e). As the above PARTS, &c. rules extend only to personal actions commenced in the superior Courts, 2dly. Title and not to scire facias or ejectment, a declaration in ejectment is to be entitled usually of the preceding term as heretofore (f), unless where the right of entry has accrued pending or after an issuable term, when the statute 1 W. 4, c. 70, sect. 39, gives a new and peculiar right of declaring (g). When an action has been removed from an inferior Court, the title is to be of the term in which the removing process was returnable. of time As the Courts by Reg. Gen. Hil. T. 4 W 4, at length ventured to Repetition promulgate that there should be no statement or repetition of venue or place essential. in the body of a declaration when immaterial, except in trespass quare clau sum fregit, or when local description is requisite; it is to be hoped that ere long there will be a similar rule abolishing the necessity for repetition of time, when precise time is immaterial, but till then time must be repeated, as by the word then, in every distinct sentence (h). Venue. Immediately after the title of the term follows the statement in the mar- 3dly. The gin of the venue or county in which the facts are alleged to have occurred, and in which the cause is to be tried (1). The doctrine of venues was explained and elucidated by Lord Mansfield in the case of Fabrigas v. Mostyn (i), and in Co. Lit. 125 a, n. 1, "There is a substantial and a formal distinction as to the locality of trials. The substantial distinction with regard to matters arising within this realm is where the proceeding is in rem, and where the effect of the judgment "could not be had, if it were [267] laid in a wrong place; as in the case of ejectments, where possession is to be delivered by the sheriff of the county; and as trials in England are in particular counties, and the officers are county officers, the judgment could not have effect if the action were not laid in the proper county (k). So, with regard to matters, that arise out of the realm, there is also a substantial distinction of locality, for there are some cases that arise out of the realm, which ought not to be tried any where but in the country they arise; as if two persons fight in France, and both happened casually to be here, one should bring an action of assault against the other, it might be a doubt whether such an action could be maintained here; because, though it is not a criminal prosecution, it must be laid to be against the peace of the king, but the breach of the peace is merely local, though the trespass against the person is transitory (1) (2). So if an action were brought relative to an (d) Wilkes v. Halifax, 2 Wils. 256; Thompson v. Marshall, 1 Wils. 304. (e) Du Pre v. Langridge, 2 Dowl. 584. (f) Doe dem. Fry v. Roe, 3 Moore & Scott, 370; Doe dem. Gillet v. Roe, id. 376; 1 Crom. M. & Ros. 19; 4 Tyrw. S. C.; Doe v. Evans, 2 Adol. & El. 11; Bing. N. C. 253; 1 Dowl. 4. (g) 1 W. 4, c. 70, sect. 36. (h) Ante, 259, note (d). (i) Cowp. 176, 177. See 2 Camp. 274. And as to venues in general, See Com. Dig. Action, N. and Pleader, C. 20; Bac. Ab. Action, A. a; Vin. Ab. Trial, H. a. 2, &c. and Place, 7 Co. 3, Stephen, 2d edit. 328. (k) 7 T. R. 587, 588; Post, 268. (1) Sed quare, for the contra pacem is not now traversable, see 2 Bla. Rep. 1058; Vin. Ab. Contra pacem. (1) If the venue is substantially laid it is sufficient. Gassett v. Palmer, 3 M'Lean, 105. Where no venue is laid in the body of the declaration, reference must be had to the margin, and the venue there is sufficient. Slate v. Post, 9 John. 81; Capp v. Gilman, 2 Blackf. 45. In Massachusetts the venue in a transitory action is matter of form, and an amendment, changing the venue, made after general issue was pleaded, may be allowed. Gay v. Homer, 13 Pick. 535. |