GENERAL cess. the practice of the Common Pleas (y); and it is to be collected from one reported decision, that if a bailable writ in C. P. be general, and the SITES, &c. plaintiff declared thereon as executor, the bail will be entitled to have an 1. Should exoneretur entered on a bail-piece, but that the defendant himself cannot correspond avail himself of such variance (z). But in that case the affidavit to hold with pro- to bail was general, viz. for a debt due to the plaintiff in his own right, and the declaration disclosed that it was for a debt alleged to be due to the plaintiff in his representative character (a); and we have seen that [*253] in another case that Court held that a *defendant may be declared against as administrator, though the process described him generally (b). However, it will be prudent, in a writ in the Common Pleas, when the plaintiff sues, or the defendant is sued in a particular character, to describe him accordingly in the writ; and this indeed will be the safest course in all the Courts (c). The form writ. 4thly. Before the uniformity of process act, 4 W. 4, c. 39, upon common process the plaintiff might declare in any cause of action whatever (d). But in bailable actions, the declarations must have corresponded with the cause and the form of action in the affidavit and the ac etiam part of the latitat or other process (1); for otherwise the defendant would be discharged on filing common bail (e); and the Courts would not allow the declaration to be amended in that respect (f); but that was the only consequence, for the Court would not in such case set aside the proceedings for irregularity (g) (2). And a variance in the amount of the debt between the ac etiam part of the latitat and the declaration was not even a ground for discharging the defendant on common bail (h); and, at least in the Common Pleas, where the sum sworn to is under £40, a variance between the form of action in the ac etiam and the declaration was not considered material (i). When the suit was commenced by original, the plaintiff was required to declare in chief for the same cause of action as was expressed in the writ (k); and in bailable cases if there were a variance between the writ and the declaration, the defendant would be discharged on a common ap (y) Archbold's Prac. K. B. by T. Chitty, 4th edit. 117, 515; Arch. Prac. C. P. [19]; Id. [40]. In the latter it is observed, "Formerly, upon general process, a plaintiff might declare in autre droit as executor, &c. but probably that would now be deemed irregular." (z) Manesly v. Stevens, 9 Bing. 400; 1 Dowl. P. C. 711, S. C. But note in that case the affidavit was general, as for a debt due to the plaintiff himself, and the declaration was for a debt due to plaintiff as executor, a variance which of itself discharged the bail. See Ilsley v. Ilsley, 2 Tyr. 215; 2 Cromp. & Jer. 331. (a) Id. ibid. See observations of Court in Ilsley v. Ilsley, 2 Tyr. 215; 2 Cromp. & Jer. 331. (b) Watson v. Pilling, 3 Brod. & B. 446; 6 Moore, 66, S. C.; 3 Chit. Gen. Prac. 182, (p). (c) And see 1 Arch. Pr. C. P. [40], where (1) Vide Rogers v. Rogers, 4 Johns. 485. it is observed that it is extremely doubtful whether the practice of issuing general process upon an affidavit in autre droit would now be allowed in any of the Courts, and refers to 1 Dowl. 97. And see 3 Wils.61; 2 Bla. R. 722, showing that only in non-bailable actions can such a variance between process and declarations be unimportant. (d) Cowp. 455; R. E. 15 G. 2, reg. 1; Tidd, 9th ed. 450. (e) 7 T. R. 80; 8 Id. 27; Cowp. 455; 1 Hen. Bla. 310; 5 Moore, 483; 2 Hen. Bla. 278; 2 B. & P. 358. (2) But in Rogers v. Rogers, 4 Johns. 485, where the ac etiam was in assumpsit, and the declaration in account, the proceedings were set aside for irregularity. . THE GENERAL srres, &c. 1. Should pearance (); but the proceedings were not set aside merely on account of a variance in describing the cause of action (m), and therefore the only consequence of the mistake was that the plaintiff lost the security of the bail. The uniformity of process act, 2 W. 4, c. 39, imperatively required correspond that the form of action shall be concisely stated in each of the writs there- with proby prescribed, whether serviceable or bailable; and if the form should be omittted or substantially vary from one of those enjoined even in serviceable process, the writ would, on summons or motion, "be set aside, though [ *254 ] "promises," omitting "on" or "upon," has been holden a mere clerical mistake (n). The proper forms are— In Assumpsit, "in an action on Promises." In Debt, "in an action of Debt." In Covenant," in an action of Covenant." In Detinue," in an action of Detinue." In a joint action of Debt and Detinue, "in an action of Debt and In Case or Trover, "in a plea of Trespass on the Case." In Trespass," in an action of Trespass." It was the intention of the legislature that every writ, whether serviceable or bailable, should apprize the defendant of the form of action by which he would afterwards be declared against, and therefore it is an indispensable requisite of every declaration that it substantially adhere to the form of action stated in the process as well in serviceable as bailable process, and if it deviate, the defendant may apply to the Court or a judge to set aside the declaration for irregularity; so that the plaintiff must abandon his first process and issue a fresh writ stating a form of action adapted to that in his declaration. But the objection is not a ground of demurrer to the declaration, but merely of a summary application to set aside the declaration for irregularity (o). It has been usual in the commencement of the declaration to state the form of action precisely as in the writ; but the forms of commencements of declarations prescribed by Reg. Gen. Mich. Term, 3 W. 4 (p), conclude with, &c., and hence it is probable that it was not intended by the judges to state the form of action, but that the declaration should immediately proceed to state the substance of the cause of action (q); and according to the observations in recent cases, the form of action ought not to be stated in the commencement (r). If the body of the declaration state a cause of action that is not, nor would be, properly declared for in the form of action stated in the writ, then the deviation would constitute an irregularity and ground for setting aside the declaration, but not a ground of demurrer. cess. and cause It has always been considered essential that the declaration should ad- The form here to or proceed for the same cause of action as that expressed in the of action affidavit to hold to bail, and that if it do not, the defendant *may apply in declaraReynolds v. Welsh, 1 Crom. M. & Ros. 580; correspond Hargreaves v. Holder, id.; and 3 Chitty's Gen. with the Prac. 468 to 470. (1) 6 T. R. 363; 2 Wils. 393; Tidd, 9th ed. 450, 451; but see 2 Moore, 301; 8 Taunt. 304, 8.C. (m) Tidd, 450, 451, 9th ed. (n) Cooper v. Wheale, K. B. Mich. T. 1835. Legal Obs. 133, 134. (0) Anderson v. Thomas, 9 Bing. 678; Thompson v. Dicas, 2 Dowle, 94; Marshal v. Thomas, id. 504; Rotton v. Jeffrey, id. 637; (p) See them, ante, 242. (9) See 3 Chitty's Gen. Prac. 242. tions must affidavit to hold to bail. (r) Ball v. Hamlet, 1 Crom. M. & Ros. 575; Reynolds v. Welsh, id. 580; Hargreaves v. Hol: [*255] der, id. (a); and see 3 Chit. Gen. Prac. 468. GENERAL REQUI III. THE by summons or motion to be discharged out of custody, or to have the bail bond cancelled, and the bail above would be discharged from liability SITES, &c. (s); and unless the plaintiff obtain a verdict for the cause of action sta1. Should ted in the affidavit, the bail would even at that late stage of the cause, be correspond relieved from responsibility (t). with pro cess. 2dly. The declaration support of Where the affidavit to hold to bail was for goods sold and money lent, and the declaration contained no count for goods sold, it was held no ground for applying to have an exonerator entered on the bail-piece (u); but that decision is doubtful, and every careful pleader should take care to insert counts in his declaration to embrace every cause of action sworn to in the affidavit. The declaration must allege all the circumstances necessary for the supmust state port of the action, and contain a full, regular, and methodical statement of all the the injury which the plaintiff has sustained (1), and the time; and in tresfacts essen- pass quare clausum fregit, the name or abuttals of the close (x); though in other actions the venue is no longer to be repeated in the body, but it the action. is to be stated only once in the margin (y). These, and all other circumstances essential in law to the action, must be stated with such precision; certainty and clearness, that the defendant, knowing what he is called upon to answer (2), may be able to plead a direct and unequivocal plea; and that the jury may be enabled to give a complete verdict upon the issuc; and that the Court, consistently with the rules of law may give a certain and distinct judgment upon the premises (z). The general rules as to what facts must be stated have been considered in the preceding chapter (a), as well as the inconveniences which may arise from the statement of superfluous or unnecessary matter (b). The requisites of the declaration in each particular case so much depend upon circumstances, that any general observations in this place upon the structure of a declaration would be but of little utility. We will presently consider the requisites in each form of action, and the precedents in the second volume must also be consulted, and when applicable, should be followed on Lord Coke's principle," nam nihil simul inventum est et perfectum;" i. e. nothing at the same instant that it is discovered or invented is perfect, but becomes so only by frequent use and perhaps correction. 8dly. Of the certainty re quired in declara tion(c). We have already considered the different degrees of certainty required in pleading, and we have seen that the certainty necessary in a declaration (s) Scrivener v. Wathing, 2 Har. & Wol. 8; 3 Chitty's Gen. Prac. 337. (t) Taunt. Rep. 107. (u) Per Littledale, J., in Gray v. Harvey, 1 Dowl. 114; 1 Arch. Prac. C. P. [40]. Sed quare. (x) Reg. Gen. Hill. Term, 4 W. 4, r. V. In trespass, the abuttals should be on, not towards the north, Lempriere v. Humphrey, 1 Har. & Wol. 170. (y) Reg. Gen. Hil. Term, 4 W. 4, r. 8. (z) Cowp. 682; 6 East, 422, 423; 5 T. R. 623; Vin. Ab. Declarations. (a) Ante, 214, 232. (b) Ante, 228, 229. (1) Vide Pelton v. Ward, 3 Caines, 77; Carpenter v. Alexander, 9 Johns. 291; Roget v. Merit and Clapp, 2 Caines, 120. The declaration, in every case, must set out a good and sufficient cause of action. Mackall v. Jones, 5 Gill & Johns. 65; U. States Bank v. Smith, 11 Wheaton, 172, and every fact material to constitute a ground of the action should be stated. Drowne v. Stimpson, 2 Mass. 441, 444; Tracy v. Dakin, 7 Johns. 75. A declaration is good if it contains all that it is necessary for the plaintiff to prove under a plea of the general issue, in order to entitle himself to recover. Beardsly v. Southmayd, 2 Green, 534. (2) Vide Coffin v. Coffin, 2 Mass. 363. GENERAL is to a certain intent in general (d), which should pervade the whole dec- III. THE laration, and is particularly required in setting forth the parties, time and other circumstances necessary to maintain the action (e). In assumpsit, SITES, &c. the description of the contract, &c. by whereas, or recital, is not demur- 3. What rable (ƒ), though it would be otherwise in trespass vi et armis (g). degree of REQUI certainty 1st. It must be stated with certainty who are the parties to the suit (h); Certainty is required. and therefore a declaration by or against "C. D. and company," not be- of parties. ing a corporation, is insufficient (i) (1); so though property be vested in trustees (k) even by an act of parliament, yet, if they be not incorporated they must be described by their proper names as individuals, and their character as trustees subjoined, as a description of the capacity in which the legislature authorized them to act (?); on the other hand, a corporation must be described in all legal proceedings by their corporate name (m) (2). The statute 3 & 4 W. 4, c. 42, sect. 12, authorizes the plaintiff to declare against the defendant upon a bill or note, or other written instrument, by the same initial or contraction of christian name used therein (3). But where there are several plaintiffs or defendants, whose names have been once described, it is sufficient and proper, when the names are numerous, afterwards to adopt the word "plaintiffs" or "defendants," without again enumerating all the names (n). But accuracy must be observed; for if in an action at the suit of several persons, the word plaintiff in the singular, be used in stating the debt, instead of plaintiffs, the defendant may demur specially (o), though it would be otherwise if the mistake (d) Ante, 234; Plowd. 84; Co. Lit. 303 a; 1 N. R. 173. (e) Com. Dig. Pleader, C. 18 to C. 27; Tidd, 9th ed. 451. (f) Ring v. Roxbrough, 2 Crom. & Jer. 418; 2 Tyr. 468. (g) 2 Salk. 636; 1 Stra. 621; Com. Dig. Pleader, C.; Andr. 282. When the proceedings were by original, and the writ recited in declaration, it was otherwise, 1 Wils. 99; Barns, 452; 2 Wils. 203. (1) Acc. Bently v. Smith, 3 Caines, 170. And actions, to be properly brought, must be commenced and prosecuted in the proper christian and surnames of the parties, and not in the name of the company or firm. Seely v. Schenck; Crandall v. Denny, 1 Penn. 75, 137; Tomlinson v. Burke, 5 Halst. 295; M'Cready v. Waneman, 2 Penn. 870; Burns v. Hall. ib. 894; Revis v. Lamme, 3 Mis. 207; Davis v. Hubbard, 4 Black. 50; Hughes v. Walker, 4 Blackf. 50; Marshall v. Hull, 8 Yerger, 101; Norcross v. Clark, 15 Maine, 80. It is a good plea in abatement that a party sues or is sued by his surname only. Chappell v. Proctor, 1 Harper, 49; Seely v. Boone, Coxe, 138; Lobat v. Ellis, 1 Taylor, 148. But in the case of two or more partDers of the same surname, if the surname be not added to every christian name, it is not error. Chance v. Chambers, 1 Penn. 384. In Virginia, however, it has been decided, that a declaration in behalf of a mercantile company, by the name of the firm, without mentioning the names of the partners, is good after a verdict for the plaintiff upon the general issue. Pate v. Bacon, 6 Munf. 219; Totty v. Donald, 4 Munf. 430; Burnet v. Watson, 1 Wash. 372. And see Porter v. Cresson, 10 Serg. & Rawle, 257. As to whether judgment by default could be sustained against a mercantile company-the suit being against the firm-if the names of the partners be omitted in the writ and declaration, see Scott v. Dunlap, 2 Munf. 349. In Connecticut a suit may be commenced by or against partners in the name of the company, and the names of the partners may be inserted by amendment within the first three days of the court. Stat. Con. 1838, p. 77. (2) Taylor v. Green, 7 Halst. 124. An incorporated city need not sue in the name of "the inhabitants of the city," but may issue by its name of incorporation. Lowell v. Morse, 1 Metcalf, 473. (3) Where a promise is made to a person or corporation by a wrong brought in the true name, setting forth that the parties are the same. name, an action may be III. THE GENERAL SITES, &c. 3. What [*257] merely occurred in the commencement. We have seen when the declaration may vary from the process in the name of the defendant, or may describe him with the alias dictus (p). In declarations upon contracts, it should be expressly stated by and with whom the contract was made (q); and where degree of there are two or more persons of the same name, they should be distinguished certainty from each other by the insertion of some appropriate allegation, "as "the is required. now plaintiff," or "the now defendant," or "the said E. F. deceased," &c. (r). In general, however, the neglect thus to distinguish the parties will be aided by intendment, particularly upon a general demurrer or after verdict (s). But where the plaintiff's name has by mistake been inserted instead of the defendant's or vice versa, the declaration will be bad upon special demurrer (t) (1); though it is aided by verdict, or upon general demurrer, by the statute of jeofails (u); and if the part of the declaration in which the mistake of the parties has occurred can be treated as surplusage, then no advantage can be taken even by special demurrer (x). But it has been decided that the statute of jeofails do not extend to the names of third persons (y); and a plea of judgment recovered, stating that in the former suit the plaintiff impleaded the defendant in a plea, &c. to the damage of the "defendant," is bad on general demurrer (z). When the debt arose on record or specialty, it was formerly used to state as well in the writ as declaration the defendant's description in the record or specialty under an alias dictus, but this is no longer the practice (a). Time, cer statement of. 2dly. The declaration in personal actions must in general state a time tainty in when every material or traversable fact happened (b), and whenever heretofore a venue was necessary, time must also have been mentioned (c) (2). The statement of the real or precise time, however, is not necessary (3) even in criminal cases (d), unless it constitute a material part of the contract, &c. declared upon (4), or unless the date, of a written contract or instrument is professed to be described (e); and except in ejectment, in (p) Ante, 245, 247. (q) Ld. Raym. 899; Com. Dig. Action on the Case for Assumpsit, H. 3, Pleader, C. 18, post. (r) 2 Wils. 386; Cro. Eliz. 267; Com. Dig. Pleader, C. 18. (s) Id. ibid.; 1 N. R. 172. (t) 1 B. & P. 59; Willes, 8. (u) 16 & 17 Car. 2, c. 8; 4 Anne, c. 16; (x) Ante, 231, 232; 4 Moore & Scott, 417. (z) 7 Taunt. 271. (a) 1 Saund. 14 a, n. 1. (b) Ring v. Roxbrough, 2 Crom. & Jerv. 418; 2 Tyr. 468. (c) Per Buller, J., 5 T. R. 620,624, 625; Com. Dig. Pleader, C. 19; Plowd. 24; 14 East, 291; Steph. 2d edit. 343. (d) Id.; 1 Saund. 24, n. 1; Co. Lit. 233 a; 2 Saund. 5, n. 3, 259, n. 2; Hawk. 11. Cr. B. 2, c. 25, s. 81; 6 Taunt. 765; 2 Moore, 91. (e) 4 T. R. 590; 10 Mod. 313; 2 Campb. 807, 308. calf, 473; Charitable Association v. Baldwin, 1 Metcalf, 359; Commercial Bank v. French, 21 Pick. 486; Medway Cotton Manuf, Co. v. Adams, 10 Mass. 360; Mil. & Chil. Turnp. Co. v. Brush, 10 Ohio, 111. (1) If a plaintiff have the same christian name as a defendant, and the declaration, after stating the names of each party correctly, and at full length, use the christian name only, as, "the said James being in custody," it is certain to a common intent, and good on special demurrer. Hildreth v. Hawes, July, 1801, MS. Kent, C. J., cited 3 Caines, 170, note, 2d edit. (2) Vide Denison v. Richardson, 14 East, 300, 351; Phillip's Ev. 164; Gordon v. Myers, 3 Halst. 69; Vanguilder v. Steele, 5 Halst. 233; Bond v. Central Bank of Georgia, 2 Kelly, 92. Where an impossible date is alleged in a declaration, it will be rejected, provided enough be left to give sufficient certainty to the pleading. Pangburn v. Bull, 1 Wendell, 345. (3) Vide Phillip's Ev. 164; The United States v. Vigol, 2 Dall. 346; Cheetham v. Lewis, 3 Johns. 43; Tiffany v. Driggs, 13 Johns. 253; Hill v. Robeson, 2 Smedes & Marsh. 541; Andrews v. Chadbourne, 19 Barbour (N. Y.) 147; Simpson v. Tallbot, 25 Alabama, 469. The text in the fourth London edition, has the word "material," instead of "necessary;" Brown v. Smith, 3 N. Hamp. 299. (4) See Allen v. Smith, 7 Halst. 159. |