IV. ITS PARTS, &c. thly. Of several counts. and in a declaration for double rent a count for use and occupation may be added (x); but in one of the latest cases, Park, B., refused to allow a count to recover four-pence per chaldron for metage on all coals imported into the port of Truro, and another for the same sum claimed to be due as a port duty, saying that at the trial of such a cause of action he should certainly, if necessary, amend the declaration by altering one statement to the other to meet the proof; and that in all the instances given in the rules in which two counts are to be permitted for the same cause of action, though grounded on the same cause, they were not framed so as to claim exactly the same sum; ex. gr. on a bill of exchange, and on the consideration for it, a count on a charter-party and a count pro rata itineris (y). The construction of this rule, prohibiting the use of more than one count or plea being much connected with the practice of the courts, has been fully considered in another work (a). As yet the admissibility of several counts seems to be unsettled, and upon the whole, in practice, when, after full consideration, it appears that the proposed several counts are essential for the purpose of just security to the plaintiff, and that they [418] do not contravene the rule, it seems to be *advisable to insert such counts in the declaration, explicitly to state the reasons for so doing to the learned judge in answer to any application to strike out all but one; and then, in case that judge should order them to be erased, to submit to his decision, and not pertinaciously retain the counts objected to, at the risk of losing the costs under the seventh rule: and in which case, should a variance appear on the trial, it is most probable the judge who will try the cause, on proof of such prior proceedings at chambers, will permit an 7thly. The amendment. After stating the tort or cause of action, and, when necessary, the specone'usion cial injury or damage resulting therefrom, the declaration concludes, "to the damage of the plaintiff of £—, &c.” (y). ad dam nam, &c. In penal actions at the suit of a common informer, as the plaintiff's right to the penalty did not accrue till the bringing of the action, and he cannot have sustained any damage by a previous detention of the penalty, it is not proper to conclude ad damnum (z); but the mistake may be amended even after error brought (a). In an action by husband and wife for a battery, &c. of the wife, or whenever the wife is properly joined in the action, the declaration should conclude ad damnum ipsorum (b) and when the plaintiff sues as executor, administrator, or assignee of a bankrupt, it is usual to state that he was injured as such executor, &c. (1). In debt the object of the action being to recover a sum of money eo nomine, and in detinue the main object of the action being the recovery of the goods themselves, the damages are generally nominal (c). But in assumpsit, (y) Jenkins v. Trebar, Hil. T. 1836; Legal Examiner, 263, 305 to 307. (r) 3 Chitty's Gen. Prac. 475 to 479. (y) Com. Dig. Pleader, C. 74; 10 Co. 116 b. 117, a, b. As to this conclusion see 1 M. & Sel. 236. When damages should in general be claimed, ante, 395. In assumpsit, ante, 338; in actions ex delicto, ante, 395. (z) 4 Burr, 2021, 2490. 1 Marsh. 180. (a) 1 Marsh. 180; query, if the claim to damages might not in such case be viewed as mere surplusage. (b) Com. Dig. Pleader, C. 84: id. 2 A. 4; 1 Salk. 114; post, vol. ii. (c) Ante, 114, 115. (1) But this is unnecessary. Martin v. Smith, 5 Binn. 16, 21. covenant, case, replevin, trespass, and other actions really for the recovery IV. ITS of damages, the sum in the conclusion of the declaration must be suffi- PARTS, &c. cient to cover the real demand (d) (1); for in general the plaintiff cannot conclusion. 7thly. The recover greater damages than he has declared for, and laid in the conclusion of his declaration (e); and after a verdict taken the Court will not give leave to increase the damages laid in the declaration, and take judgment for the enlarged damages (f). But if the plaintiff will waive the verdict, he may be allowed to amend his declaration by increasing the damages, and will be let into a new trial (g). If judgment be given for more damages than tho e laid in the declaration, it is error, and a court of error cannot reduce the sum to the amount stated in the declaration (h). But the Court in which the action was brought will allow the plaintiff to [*419 ] enter a remittitur of the surplus damages, and thus aid the error (i) (2). If, therefore, the verdict be for more than the damages laid in the declaration, a remittitur should be entered as to the surplus before judgment. The jury, however, may give a verdict for as much as is declared for, and also give costs separately, which costs may afterward be increased by the Court, though such damages and costs might together exceed the damages laid in the declaration (k). It is usual in practice to state a sum sufficient to cover the real demand, with interest up to the time of final judg ment. sion. In point of form, the usual conclusion of a declaration in the King's The forms Bench before the recent rules had always been "to the damage of the of concluplaintiff £, and therefore he brings his suit, &c. ;" or in a qui tam action, "and therefore as well for our said lord the king (or for the poor of the said parish of,') as for himself in this behalf he brings his suit, &c." but in the latter case the general conclusion, "and therefore he brings his suit, &c." would suffice (m). In the Common Pleas the conclusion was, "wherefore the said plaintiff saith that he is injured and hath sustained damage to the value (or 'amount') of £-, and therefore he brings his suit, &c. ;" and in the exchequer, the form was, "To the damage of the said plaintiff of £-, whereby he is less able to satisfy our said lord the king the debt which he owes his said Majesty at his Exchequer, and therefore he brings his suit, &c." The above differences in the form of concluding in each Court are still to be observed in declarations in actions removed from an inferior Court, but in all personal actions commenced in either of the superior Courts, the Reg. Gen. Trin. T. 1 W. 4. The presprescribes the following form: "To the damage of the plaintiff of £— and thereupon he brings his suit, &c." (n) but which it is implied is to vary (1) A return of property illegally taken, though accepted by the owner, is no bar to an action, the return and acceptance being available only in mitigation of damages. Hanmer v. Wilsey, 17 Wend. 91. (2) Vide Burgher v. Kortwright, 4 Johns. 415. And the amendment has been permitted after judgment, and after writ of error brought, and the excess of the judgment assigned as error. Herbert v. Hardenbergh, 5 Halst. 222. See the English and American cases cited by Ch. Justice ERVING. † See American Editor's Preface. ent form. IV. ITS PARTS, &c. 7thly. The conclusion. when at the suit of husband and wife, executors, administrators, or assignees (0). By the above word suit or secta (a sequendo), was anciently understood the witnesses or foltowers of the plaintiff, by whom he proposed to prove his case, for in ancient times the law would not put the defendant to the trouble of answering the charge till the plaintiff had professed himself ready to make out his case; but the actual production of the suit, the secta, or followers, has long been antiquated, though the form of it still continues (p). In actions against attorneys and other officers of the Court, the declaration used to conclude unde petit remedium, instead of bringing [*420 ] suit (4); but an inaccurate conclusion, in *that case was no cause of demurrer (r); however, in one case, on a special demurrer, the Court, for the sake of keeping up the old established form of "prays relief, &c." proposed an amendment without payment of costs (s). When the action was by bill against a member of the House of Commons, the bill concluded with a prayer of process to be made to the plaintiff, according to the statute, &c, but now in all cases as well against attorneys as privileged persons, the above-mentioned common conclusion "To the damage of the plaintiff of £—, and thereupon he brings his suit, &c." is proper and sufficient (1). Sthly. The profert. omitted. In an action at the suit of an executor or administrator, immediately after the conclusion, to "the damage," &c. and before the pledges, it was always the course to make a profert of the letters testamentary or letters of administration (u) (1); but in scire facias the profert might be either in the middle or at the end of the declaration (v) ; and in an action on a note indorsed to the plaintiff by an administrator no profert is necessary, because the plaintiff is not entitled to the custody of the letters of administration, which however must be proved on the trial (x). The omission of the profert when necessary is now aided unless the defendant demur specially for the defect (y). At the end of the declaration in the King's Bench by bill, it was usual Pledges how to be to add the plaintiff's common pledges to prosecute, John Doe and Richard Roe (). But in proceedings by original, and in the Common Pleas, pledges omitted were supposed to have been found in the first instance before the defendant was summoned, and therefore they were not to be stated at the end of the declaration unless in proceedings against attorneys, &c. (a). In an action at the suit of the king, the queen, or an infant, (1) In Connecticut it is not common to make profert of letters testamentary. Champlin v. Tilley, 3 Day, 305. And in debt by an administrator upon a judgment recovered by him, he need not declare as administrator. Talmadge v. Chapel, 16 Mass. 71; Crawford v. Whital, 1 Doug. 4, n. (1). ! pledges were not at any time necessary (b); and as they have long ceased to be real (c), the statement of them had long been considered to be unnecessary, and the omission could not be taken advantage of even by special demurrer (1), because cessante ratione, cessat et ipsa lex (d); and the recent Reg. Gen. Mich. T. 3 W. 4, reg. 15, *expressly prohibits the addition of pledges in any declaration in a personal action. IV. ITS PARTS, &C. 8thly. The profert and pledges. [ *421 ] when aid In considering the various parts of a declaration, we have incidentally Defects noticed a great variety of instances, in which a defect may be aided or be- ed. come unimportant, either by the defendant's omission to demur specially or generally, or by his pleading over (e), or by virtue of the statute of jeofails, or by the effect of a verdict. It is proposed to consider these rules in a connected point of view, as they have relevance to all parts of pleading, towards the end of this volume, and therefore no further notice need here be taken of the subject (ƒ). (b) 8 Co. 61; Cro. Car. 161; Co. Lit. 133 a; Sir W. Jones, 177. (c) 3 Bla. Com. 295; Co. Lit. 161 a, note 4; Fortes. 330; 1 Cromp. Intr. 48. (d) 3 T. R. 157, 158; Barnes, 163; 2 Hen. Bla. 161; Summary on Pleading, 43. And yet it was enacted by the statute 4 Ann, c. 16, s. 1, that no advantage shall be taken of the omission of pledges unless assigned specially as cause of demurrer, thereby admitting the (e) See an instance, Darling v. Gurney, 2 (f) See Index, "Defects." (1) Acc. Baker v. Phillips, 4 Johns. 100. *CHAPTER V OF THE CLAIM OF CONUSANCE, APPEARANCE AND DE- Before we consider the different pleas in personal actions, it may be proper in this chapter to examine a few points relating to, 1st, the claim of Conusance; 2dly, Appearance and Defence; 3dly, Oyer; and 4thly, Imparlances. The first has long been a proceeding of rare occurrence. The second, viz., the statement in pleading of any appearance and defence, has been almost entirely altered by the Reg. Gen. Hil. T. 4 W. 4; and the fourth, relating to imparlances has as respects personal actions commenced in one of the superior Courts been virtually abolished; but still it is advisable for students and practitioners to take a concise view of the ancient practice respecting those three subjects. As regards the third, Oyer and pleadings thereupon, there has been but one recent alteration. We will consider each in the above order. 1. CLAIM OF CONU SANCE. I. CLAIM OF CONUSANCE. The claim of Conusance or Cognizance of a suit (a), is defined to be an intervention by a third person, demanding judicature in the cause against the plaintiff, who has chosen to commence his action out of the claimant's Court (b). It is in form a question of jurisdiction between the two Courts (c), and not between the plaintiff and defendant, as in the case of a plea to the jurisdiction, and therefore it must be demanded by the party entitled to conusance, or by his representative, and by the defendant or his attorney (d). A plea to the jurisdiction must be pleaded in person, but a claim of conusance may be made by attorney (e). Hence the consideration of this claim might on first view appear to be foreign to a treatise of this nature; but as it was frequently made at the instigation of the [*423] *defendant, and affects the pleading, it is proper to be concisely inquired into. This claim, when made against the jurisdiction of the Courts of Westminster, has not been encouraged, and therefore the greatest accuracy must be observed in the time and manner of making it (f). It may be considered with reference, 1st, To the several sorts of inferior ju (a) As to the conusance in general, see Gilb. C. P. 192, &c.; 1 Sellon, c. vii.; Tidd, 9th ed. 631; Vin. Ab. Conusance; Com. Dig. Courts, P.; Bac. Ab. Courts, D. 3; 3 Bla. Com. 298. As it is stated that the claim of conusance should be made before defence, see 3 Bla. Com. 298, I have considered the nature of such claim anterior to defence and imparlance, oyer, and pleas to the jurisdiction and in abatement. (b) 2 Wils. 409; see the precedents in Rast. Ent. 128; Willes, 233; 2 Wils. 410; 11 East, 543; 12 Id. 12. (c) Fortsec. 157; 5 Vin. Ab. 588, 589, S. C. (d) Id.; 5 Vin. Ab. Conusance, 588, 593, 596, 600; 12 Mod. 666. (e) 2 Wils. 410; 5 Vin. Ab. 599. (f) See the reason, 2 Wils. 108, 109; Willes, 237, 238. |