MODES OF STATING FACTS. STATING ral counts varying the statement of the interest in the subject insured (). II. MODE OF The other are rules, that pleadings must not be hypothetical (v); nor by FACTS way of recital, but positive (x), and that things should be stated accord- Of the cering to their legal effect or operation (y). These rules, indeed, will be tainty remore fully considered hereafter in those parts of the work which treat of quired. the qualities of declarations and the other parts of pleading in particular. III. THE RULES OF CONSTRUING PLEADINGS. OF CONSTRUCTION. It is a maxim in pleading, that everything shall be taken most strongly III. RULES against the party pleading (z) 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 intendment and construction (d) (2); 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) (3). Thus, in debt on bond, conditioned to procure J. S. to surrender a copyhold "to the use of the plaintiff," a plea that J. S. sur- [ *238 ] rendered and released the copyhold of 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 (u) Reg. Gen. Hil. Term, 4, W. 4. Pleadings in Particular Actions, reg. 1. (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 pleaded, and as not directly confessing and avoiding the alleged causes of action, id. ibid. (x) Bac. Ab. Pleas, &c. (B); 4 Steph. 1st ed. 388; 2d ed. 431. Mr. Serjeant Stephen, states, as instances of this rule, that it is bad in trespass, to charge that "whereas" the defendant assaulted, &c.; and that in a plea, in stating a grant by deed, it should not be stated that "it was witnessed" by the deed that the party granted. (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. (z) 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 Cambp. 139. (d) Com. Dig. Pleader, C. 25; 1 Lev. 190; per Lord Ellenborough, 5 East, 259, 260; 12 Id. 263. (e) 4 Taunt. 492; 1 Salk. 325; 5 East, 244, 257; 12 East, 279. As to the effect of" prædictus," and "idem," and construction of them, see 11 East, 513. So in the case of a deed, exposition shall be made of it so as to support rather than annul the transaction; ut res majis valeat quam pereat; Shep. Touch. 166; 3 Atk. 136. (f) Cro. Car. 6. (1) Fuller v. Hampton, 5 Conn. 422, 423. Post, 545; Halligan v. Chicago & Rock Island R. R Co, 15 Illinois, 558; Ware v. Dudley, 16 Ala. 742. (2) Vide Hastings v. Wood, 13 Johns. 482. (8) Pender v. Dicken, 27 Miss. (5 Cush.) 252. III. RULES #TRUCTION. 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 (1). 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 (). 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 accompanied by anything to explain or define them. If the case be clear, nice exceptions ought not to be regarded (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 side (k) (2); and on the same ground we shall hereafter see, that when there is a demurrer to a plea, replication, &c. if the prior pleading be defective in 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 () and although in general in pleading, an equivocal expression is to be construed against the party using it, yet where the [*239] opposite party has pleaded over, that is an admission that the expression is to be taken in that sense which will support the previous pleading (m). Words of reference, as "there" and "said" in an indictment, will not (g) Id. 195; Steph. 2d edit. 423. (h) Per Lord Ellenborough C. J., 5 East, 257. See id. 463. (i) Per Lord Ellenborough C. J., 5 East, 259, 260; 2 East, 33. (k) 4 East, 502; 5 Id. 270, 271; 10 Id. 87. (7) 1 B. & C. 297; Cowp. 825; 6 B. & C. 302, 303. (m) Wright v. The King, 8 Nev. & Man. 892. (1) 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 Lonchamps, 1 Dall. 114; Rue v. Mitchell, 2 Dallas 59; Brown v. Lamberton, 2 Binney 37; Pelton v. Ward, 3 Caines, 76. See the subject very fully discussed, Walton v. Singleton, 7 Serg. & R. 449. But still the meaning of the words must be unequivocal. Harrison v. Stratton, 4 Esp. 218. (2) Vide Havens v. Bush, 2 Johns. 387; King v. Harrison, 15 East, 614, 615 These rules will be fully explained hereafter. be referred to the last antecedent where the sense requires that they III. RULES should be referred to some prior antecedent (n). OF CONSTRUCTION. · IV. THE DIVISION OF PLEADINGS. The parts of pleading have been considered as arrangeable under two 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 surrebutter.-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 any part of the pleadings above-mentioned.-2dly. Demurrers 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. (n) 6 B. & C. 295. (0) Vin. Ab. Pleas, &c. C.; Bac. Ab. Pleas, &c. A. (p) Vin. Ab. Pleas, &c. C. IV. DIVISION OF PLEAD- *CHAPTER IV. OF THE DECLRATION (a). I. DEFINITION AND DIVISION OF SUBJECT. II. THE RECENT REGULATIONS AFFECTING THE FORM OF DECLARATIONS. IV. THE FORMS AND PARTICULAR PARTS AND REQUISITES OF DECLARA TIONS. I. DEFINI TION AND D SUBJECTS. 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 action (b), which 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 well in Assumpsit, Debt, Covenant and Detinue, as in Cuse, Trover, Replevin, Trespass and Eject ment. 2. The recent altera II. THE RECENT ALTERATIONS AFFECTING DECLARATIONS Before the uniformity of process act, 2 W. 4, c. 39, there were very tions affect- numerous and perplexing modes of commencing personal actions, viz. by ing declara- original writ issued out of Chancery and returnable in the Court of King's tions in gen- Bench or Common Pleas, (but not in a Court of Exchequer); by bill of eral. (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. ALTERATIONS Middlesex or latitat, issued out of and returnable in K. B. by writ of II. RECENT capias quare clausum fregit, issued out of and returnable in the Court of AFFECTING Common Pleas, and by quo minus or venire, issued out of *and returnable DECLARAin a Court of Exchequer; and numerous other writs in each of those TIONS. Courts by or against attornies or officers of the court and other persons. By one or other of these processes, the defendant was always actually or supposed to be brought into Court to answer the plaintiff, and after appearance the plaintiff declared, and the commencement of the declaration used to state how or by what process the defendant had 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 Reg. Gen. prescribed by Reg. Gen. Mich. Term, 3 W. 4, reg. 15, which orders, "that Mich. T. 3 every declaration shall in future be entitled in the proper Court and of the W. 4, as to day of the month and year in which it is filed or delivered, and shall com- Court and mence as follows. *Declaration after Summons. [Venue.]-A. B. by E. F., his attorney, [or, in his own proper son], complains of C. D., who has been summoned to answer the A. B., &c. Title of Date. [ *242 ] Prescribed Declaration after Arrest, where the party is not in Custody [Venue.]—A. B. by E. F., his attorney, [or, in his own proper per (c) Reg. Gen. Hil. Term, 2 W. 4, reg. 4. (d) The statute provides that the writ of ammons shall now be issued as well against ordinary persons as against attornies, officers of the Court, corporations, or hundredors, and privileged persons, excepting when sued as an (e) See the forms fully, post, vol. ii. |