OF ELEC- of action should be adopted, where it may be advisable to try the cause TION OF out of the county where the estate is situate. ACTIONS. 7thly. The Seventhly, The evidence must also be attended to in the election of acevidence. tions. Thus, it is frequently more convenient that the action should be trespass than case, because if it be laid in trespass, no nice points can arise upon the evidence, by which the plaintiff may be defeated upon the form of the action, as there may in many instances, if case be brought (k). And here we may again allude to the advantage of using trespass by the tenant, rather than case by the reversioner, in the case of injury to land (1). And very often the form of action, by driving the defendant to plead more specially, may narrow the plaintiff's evidence (m). 8thly. Costs. and execu tion. Eighthly, In actions in form ex contractu, the plaintiff is in general entitled to full costs, though he recover less than 40s. damages, it having been decided that the 22 & 23 Car. 2, c. 9, does not extend to actions of assumpsit, debt, detinue, or covenant (n); and therefore it is not in general material, so far as respects the costs, which of these forms of action be adopted. But in trespass for injuries to the person, or to real property if the plaintiff recovers less than 40s. damages, he is not entitled to more costs than damages; and therefore, for such injuries, when practicable, it is frequently advisable to declare in case or trover; in which full costs are usually recoverable (o) (1). So an action on the case was frequently preferable to an action of trespass against several defendants, because in trespass, if one defendant was acquitted, he might obtain his costs, but which he was not entitled to in an action on the case (p). And as no fine was paid upon issuing an original writ in covenant, that action was on that account in some cases preferable to debt. The 3 & 4 W. 4, c. 42, s. 32, enabling the judge to give an acquitted defendant his costs in every form of action, and the 2 W. 4, c. 39, abolishing the use of an original writ in personal actions, have put an end to the last two grounds of preference. 9thly. Ninthly, The action of debt is frequently preferable to assumpsit "or Judgment covenant, because the judgment in debt by nil dicit, &c. is in general final, and execution may be issued immediately without the expense and delay [ *212] of a writ of inquiry, which is usually necessary in assumpsit or covenant, in the case of judgment by default (q); and it is better to proceed in debt on an award than on the arbitration bond, because in case of judgment by default in an action on the latter, a writ of inquiry is necessary, under the 8 and 9 W. 3, c. 11 (r) (2). Replevin or detinue is preferable to trover, when it is important to obtain the goods themselves (s). (k) 3 East, 600. (m) Ante, 210. (n) Tidd, 9th edit. 963. (0) 6 T. R. 129, 130; Tidd, 9th edit. 963. The judge may, in the latter actions, certify to take away costs; but this power is not often exercised. (p) See Tidd. 9th edit. 986. (9) Tidd, 9th edit. 573. But in many cases the writ of inquiry is, it seems, necessary even in debt; as in debt for use and occupation, for not setting out tithes, or for foreign money, 5 B. & Ald. 885; Tidd, 9th edit. 523. Sed quære. (r) Post, vol. ii. (s) Ante, 142, 189; 2 Stark. 288. (1) See 1 Met. & Perk. Dig. Tit. Costs, ch. 4, p. 600, et seq. (2) By the statute of the State of New York,. sess. 24, c. 25, s. 2, no writ of "error brought to reverse any judgment given in any personal action," is a stay of execution, unless bail in error be put in. 2 Rev. Stat. 595, s. 27, 28. TION OF The circumstance of a party having elected one of several remedies by OF ELECaction, will not in general preclude him from abandoning such suit, and ACTIONS. after having duly discontinued it, he may adopt any other remedy. It Effect of seems that an action for rent may be supported, although a distress has election. been made, provided it has not produced actual satisfaction (t). The plaintiff cannot in general bring a fresh species of action for the same cause whilst the former is depending, or after it has been determined by a verdict; and it is a rule that the party applying for an information shall be understood to have made his election, and waived his remedy by action, whatever may be the fate of the motion for the information, unless the Court think fit to give him leave to bring an action (u). (1) 1 Salk. 248; 1 Ld. Raym. 719; 2 Chit. Rep. 301; 1 B. & A. 157; 5 Moore, 542. (u) 2 T. R. 198; 1 Chit. Crim. Law, 855, 856; Rex. v. Sparrow, Tidd, 9th ed. 10, note *CHAPTER III. OF PLEADING IN GENERAL (a). DEFINITION. I. THE FACTS NECESSARY TO BE STATED. II. THE MODES OF STATING SUCH FACTS. DEFINITION PLEADING is the statement in a logical and legal form of the facts which constitute the plaintiff's cause of action, or the defendant's ground of defence; it is the formal mode of alleging that on the record, which would be the support of the action or the defence of the party in evidence (b). It is, as observed by Mr. Justice Buller (c), "one of the first principles of pleading, that there is only occasion to state facts, which must be done for the purpose of informing the Court whose duty it is to declare the law arising upon those facts, and of apprizing the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it." The grand object contemplated by the system is the production of a certain and material issue (d) between the parties, upon some important part of the subject-matter of dispute between them. The observations of Lord Chief Justice De Grey on the structure of an indictment are very forcible, and equally applicable to the pleadings in civil actions," the charge must contain such a description of the in (a) I forbear, in this practical treatise, to observe upon the origin, antiquity, and history of pleading, or to notice the many observations in the books upon its utility and value; upon this subject the reader may consult 3 Reeve's Hist. Com. Law, 424; Hale's Hist. Com. Law, 173; Mr. Lawes' Treatise on Pleading, 1 to 33, and a tract intituled "A Summary of Pleading," 1 to 7; See also Lord Erskine's Speeches, vol. i. 276, &c., and the valuable publication of Mr. Serjeant Stephen, p. 144, 1st edit. and p. 157, 2d edit. to the end; and vide id. Appendix, xiv. n. (38), and (1) "I entertain a decided opinion, that the established principles of pleading, which compose what is called its science, are rational, concise, luminous, and admirably adapted to the investigation of truth, and ought consequently to be very carefully touched by the hand of innovation." Per KENT, C. J., 1 Johns. 471. As to the history of pleading, vide 2 Reeve's Hist. E. L. 264, 267, 330, 344, 349; 2 Reeve's Hist. E. L. 59, 61, 428, 443, 461, 469. NITION. jury or crime, that the defendant may know what injury or crime it is THE DEFIwhich he is called upon to answer, that the jury may appear to be warranted in their conclusion of guilty or not guilty' upon the premises delivered to them, and that the Court may see such a definite injury or crime, that they may apply the remedy or the punishment which the law prescribes. The certainty essential to the charge consists of two parts; the matter to be charged, and the manner of changing it" (e). Hence the science of special pleading may be considered under two heads: 1st, The Facts necessary to be stated; and, 2ndly, The Form of the statement; and these, together with some general rules of construction, and the division of pleadings, we will consider in the present chapter. C I. THE FACTS NECESSARY TO BE STATED. I. THE In general, whatever circumstances are necessary to constitute the cause BE STated. of complaint or the ground of defence, must be stated in the pleadings, and all beyond is surplusage (f) (1); facts only are to be stated, and not arguments or inferences, or matter of law (g) (2), in which respect the pleadings at law appear to differ materially from those in equity. There are some facts of such a public or general nature, that the Courts ex officio take notice of them, and which consequently ought not to be unnecessarily stated in pleading (h); and therefore it is advisable to consider a few of the principal rules as to the facts of which the Courts will ex officio take notice. the Court The Courts will ex officio take notice when the King came to the 1st. Facts throne (i), and of the king's proclamations of war, &c. (k), and of the of which articles of war, which are an emanation from the crown by virtue of acts will ex ofof parliament (); and consequently those matters need not be alleged in ficio take pleading. So the courts are also bound to take notice of all the privi- notice, leges of the crown (m). But private Orders of Council are not considered should not as matters of law, or of such public nature as to render it incumbent on the judges ex officio to take notice of them (n); and a pardon under the great seal will not be judicially noticed (o); nor will the Courts take judicial notice of an existing war between foreign states, or a recently de (e) Cowp. 682, 683. (f) Cowp. 683; 1 Ld. Raym. 171; 10 East, 205. (g) Cowp. 683, 684; Com. Dig. Pleader, C. 78; post. (h) 2 H. Bla. 398; See Steph. on Pleading, 351, 1st edit.; 391, 2d edit.; Co. Lit. 303 b; Com. Dig. Pleader, C. 78; 4 B. & Ald. 243. (i) 2 Ld. Raym. 794, 791. (k) 1 Ld. Raym. 282; but see 2 Camp. 44, (n) 2 Lil. Prac. Reg. 303. (1) Vide Tucker v. Randall, 2 Mass. 283; Browne v. Stimpson, 2 Mass. 441, 444; Tracy v. Dakin, 7 Johns. 75. (2) Goshen Turnpike Co. v. Sears, 7 Con. 92; Hurst v. Purvis, 5 Blackf. 557; Rakes v. Pope, 7 Alabama, 161; Weed v. Hill, 2 Miles, 122; Thomas v. Van Doren, 6 Missouri, 201; Faller v. Delaven, 20 Wendell, 57. be stated. I. THE FACTS NECESSARY TO BE STATED. clared war in which this country is engaged, but the same must be proved, unless recognized by some public statute (p). The time of holding every Parliament, and the prorogations and sessions thereof (q), and also where any parliament sat, will be taken notice of judicially (r); and therefore neither of these facts should be stated in pleading. And if either be mis-stated, even in pleading a private act, not before the Court, the pleadings will be defective on demurrer, or in the case of a private act, on the plea of nul tiel record, or any other plea, putting in issue the whole of the facts stated in the declaration (s); but the mistake may be aided by verdict (t). The Courts will also take judicial notice of the course of proceedings in either house of parliament (u), but not of the Journals of either house (x), which must be stated in pleading and proved in evidence (y). Public statutes, and the facts which they recite or state, must be noticed by the Courts, without their being stated in pleading (z) (1); and it is only necessary to state facts, which will appear to the Court to be affected by the statute (a). If, however, an offence be created by a statute, and a penalty be inflicted, the mere statement of the facts constituting the offence will be insufficient, for there must be an express reference to the statute, as by the words "contrary to the form of the statute, &c." in order that it may appear that the plaintiff grounds his case upon and intends to bring it within the statute (b). In the case of a public statute, it is not advisable to recite or set out any part of it, for a misrecital (2), with a conclusion "contrary to the form of the statute aforesaid," would be fatal even in arrest of judgment (c). If a statute be passed during a session extending into two years of the king's reign, yet it must be stated to have passed in that session when, by the king's assent, it became a law; and if a statute be described as passed in the 2d and 3d years of Wm. 4, it will be a fatal misdescription, and the judgment on an indictment containing such a misdescription would be arrested; though if the description had been of an act passed in a session holden in the second and third years of the reign, it would be otherwise (d). Where a statute has been recently made, it has been supposed to be necessary to allege the facts took place after the passing of the act (e); but if there be a proper conclusion, contra for (p) 3 M. & Sel. 67, 69; 11 Ves. 292; 2 Campb. 44; 3 Id. 61, 67. (9) 1 Ld. Raym. 343; Plowd. 77; Moore, (r) Ld. Raym. 210, 343. (1) 2 Mod. 40. (u) 1 Saund. 131 a. (x) Ld. Raym. 15. (z) 1 Bla. Com. 85, 86; Dougl. 97, n. 12; Bac. Ab. Statute, L.; 2 Wils. 376; Willes, 210; see the reason, per Lord Ellenborough, 4 M. & Sel. 542. A recital in a public statute is evidence of the fact recited, 4 M. & Sel. 532. (a) 1 T. R. 145; Com. Dig. Pleader, C. 76; Lane, 71; Stephen, 352. (b) 3 B. & C. 186; 5 D. & R. 13, S. C. (c) Ld. Raym. 382; Dougl. 97; 6 T. R. 776; Bac. Ab. Statute, L. 5. (d) Rex v. Biers, 1 Adol. & El. 327; 3 Nev. & Man. 475. (e) 1 Saund. 309 a. n. 8. Sed quære. (y) Cowp. 18; Dougl. 569. (1) Vide Dive v. Manningham, Plowd. 65. (2) Vide Murray v. Fitzpatrick, 8 Caines, 41. A misrecital in the title of a public statute, in a part which does not alter the sense, and when its date is truly set forth, is not a cause for arresting judgment after verdict, nor can it be assigned as error. Murray v. Pitzpatrick, 3 Caines, 88. 41. |