III. THE GENERAL REQUI which the demise must be stated to have been made after the title of the lessor of the plaintiff (1) and his right of entry accrued (f). And in stating that a deed, bill, or a promissory note, &c. "bears date" on a certain SITES, &C. day, or in describing an usurious contract where time is the very gist of 3dly. What the matter, the real day must be truly stated (g) (2). In general, the degree of day on which a promise is laid to pay a bill of exchange is not material, certainty is required. unless it be expressly alleged to have been its date (h); and it is no objection that the day of the promise appears to have been more than six years before the commencement of the action. Thus in assumpsit upon a contract, the day *upon which it is made being alleged only for form, the [258] plaintiff is at liberty to prove that the contract, whether it be express or implied, was made at any other time (i). And where it is not essential that the day laid in the pleading should accord with the truth, it is not material that the time stated be so distant, that in fact the parties could not have been alive (k), if in point of law there is no intrinsic impossibility that the time laid is correct (1). So in an action against the acceptor of a bill payable after sight, an allegation that it was accepted on the day of the date will be proved, though it appear that it was accepted on a subsequent day (m). And an allegation in case by a reversioner that his tenant was, "and still is," possessed of the land, is supported by proof that at the time of the injury the tenant occupied ; and a subsequent change of tenancy is not material (n); so that the words " and still is," being immaterial, may be rejected as surplusage. A deed also may be stated in pleading to have been made on a day different from that on which it bears date, provided in such case the words "bearing date," &c. be omitted (o), and it be merely stated that "on, &c." the deed was made. So in an action on a bill or note, though it be payable at a particular time "after date," it is not necessary to describe the instrument as "bearing date" on a given day; it suffices to state that "heretofore, to wit, on, &c.' it was made, &c.; and the Court said they would intend that the date of the instrument was the day on which it was alleged to have been made (p). So in trespass the time is not material (g); and where several trespasses are stated to have been committed on divers days and times between a particular day and the commencement of the action, the plaintiff is at liberty (f) 2 East, 257; ante, 187, 192. (g) Cowp. 671; 2 Stra. 806; 10 Mod. 313; 3 T. R. 531; Steph. 2d ed. 345. (h) Hawkey v. Borwick, 1 Younge & Jerv. 376. (i) 2 Stra. 806; 10 Mod. 313; 1 Younge & Jerv. 376. (k) Atkins v. Warrington, 7th June, 1827, K. B., before the three judges, MS. Declaration in assumpsit on the common counts; 1st, stated that defendant heretofore, to wit, on the 1st day of November, A. D. one thousand eight (omitting hundred) and 26, at London, was indebted, &c., and afterwards stated "on the day and year aforesaid;" special demurrer, assigning as cause that the time mentioned was nonsensical and absurd, and no year was mentioned; and joinder. Chitty for plaintiff, and Watson for defendant. Bayley, J., held this to be no ground of demurrer, first, because the (1) Steph. 2d edit. 344; see 2 Saund. 291 c, (1) Vide Van Allen v. Rogers, 1 Johns. Cas. 283. (2) Vide Harris v. Hudson, 4 Esp. 152. An instrument having no date, or where the date is in blank, may be set forth as executed on a certain day, without stating expressly, that it was without date. Grannis v. Clark, 8 Cowen, 36. REQUI * III. THE to prove a single act of trespass anterior to the first day; though he canGENERAL not give in evidence repeated acts of trespass, unless committed during the SITES, &c. time stated in the declaration (r). When in one continued sentence, or 3dly. What in several sentences connected by the conjunction "and," several facts are degree of stated, the time, though only once alleged, will apply to each fact; as in certainty trespass, that the defendant, on, &c. at, &c., made an assault on the plainis required. tiff, and took and carried away a bag (s). And it is said that in averring the performance of a contract, it is not necessary to state any particular day, unless time be material (), and to a negative matter no time need be alleged (u). But there should in general be a distinct averment of time to every material fact (x). [*259 ] In framing the declaration care must be taken that no material part of the cause of action, or damages resulting from the injury, or other material fact, appear to have accrued after the time to which the declaration by its date at the top refers, for otherwise it will be subject to a demurrer (y) (1); and where it was positively and expressly averred in the declaration that the plaintiff had sustained damage from a cause subsequent (2) to the commencement of the action, or previous to the plaintiff's having any right of action, and the jury gave entire damages, judgment will be arrested; but where the cause of action is properly laid, and the other matter either comes under a scilicet, or is void, insensible or impossible, and therefore it cannot be intended that the jury ever had it under their consideration, the plaintiff will be entitled to judgment (z) (3). And after verdict, judgment will not be stayed or reversed for a mistake of the day, month, or year, in any bill, declaration, or pleading, where the right time in any writ, plaint, roll, or record preceding, or in the same roll or record where the mistake is committed is once alleged (a) (4); and this provision was afterwards extended to judgment by confession, nil dicit, &c. in Courts of record (b), and to penal actions (c). Moreover, the pleader must take care, in stating time, that there be no inconsistency in dates. Thus where a declaration at the suit of an administrator, after stating the promise to the intestate on the 2d January, A. D. 1832, afterwards stated that the letters of administration were granted to the plaintiff at a prior date, viz. the 2d January, 1831, this obvious inconsistency was holden fatal on special demurrer, although the latter date (1) Acc. Lowry v. Lawrence, 1 Caines, 69; Cheetham v. Lewis, 3 Johns. 42; Waring v. Yates, 10 Johns. 119. And the mistake is not cured by verdict. Ward v. Honeywood, Doug. 61; Cheetham v. Lewis, 3 Johns. 44. Contra, Bemis v. Faxon, 4 Mass. 268; Crouse v. Miller, 10 Serg. & Rawle, 155. See Shaw v. Wile, 2 Rawle, 280. The action cannot be commenced before the cause of it accrues. Swift v. Crocker, 21 Pick. 241; Ilsley v. Jewett, 2 Metcalf, 168; Church v. Clark, 21 Pick. 310. (2) Langer v. Parish, 8 Serg. & Rawle, 134. See the cases cited in the opinion of the court. (3) Shaw v. Wile, 2 Rawle, 280; 10 Serg. & Rawle, 158, 159; Vide Buckley v. Kenyon, 10 East, 139. (4) Vide Allaire v. Ouland, 2 Johns. Cas. 56. was preceded by an allegation that the grant was after the death, and the III. THE time was laid under a videlicet (d). GENERAL Since the uniformity of process act, 2 W. 4, c. 39, all the new writs SITES, &c. are considered the commencement of the action, and not as before mere зdly. What process to bring the defendant into Court; so that now, "if the writ be is- degree of sued before the cause of action is complete, the plaintiff would be non- certainty is suited, if the defendant plead so as to raise the objection (e) (1) and the required. above expressly requires that the true day of issuing the process shall be [*260] stated therein; and Reg. Gen. Hil. Term, 4 W. 4, No. 1, requires the issue to state the actual date of the writ as well as of the declaration. The Reg. Gen. Mich. Term, 3 W. 4, reg. 15, and of Hil. Term, 4 W. 4, reg. 1, expressly require the declaration in all personal actions to be entitled of the very day of the month and year when the same is filed or delivered. But the neglect to entitle the declaration of the proper day, The presmonth, and year, is probably no ground of demurrer, but merely an irreg- en in de ularity to be taken advantage of by summons or motion (f). The dec- claring as laration need not expressly notice the date of the writ (g), though care to time. must be observed to state all facts to have occurred on the day before the writ issued, or at least not on a subsequent date (h) (2). It is also essential that no material fact be stated in the declaration to have happened after the date or test of the writ (3) which is now in all cases considered the commencement of the action (4) and cannot legally (d) Ring v. Roxbrough, 2 Tyr. 468; 2 Crom. & Jerv. 468, S. C. (e) Alston v. Underhill, 1 Crom. & M. 398, 768; 3 Tyr. 427; Steward v. Layton, 3 Dowl. 430; 3 Chitty's Gen. Prac. 159. (f) Neal v. Richardson, 2 Dowl. 89; 3 Chit- (g) Dupre v. Langridge, 2 Dowl. 584; 8 (1) Wingate v. Smith, 20 Maine, (2 Appleton,) 287; Collier v. Crawford, Minor, 100; Reed v. Brewer, Peck, 275. (2) Boyce v. Morgan, 3 Caines, 133; Waring v. Yates, 10 Johns. 119; Harper v. Montgomery, 5 Litt. 347; Rand v. Griffith, 11 Serg. & R. 130; Gordon v. Kennedy, 2 Binn. 287; Bemis v. Faxon, 4 Mass. 263. (3) See Bemis v. Faxon, 4 Mass. 263. (4) In Connecticut the service of the writ is the commencement of the action. Clark v. To prevent the bar of the statute of limitations, filling the writ in good faith will be deemed In some cases, although the writ is actually made, yet the action will not be considered as So where a writ is filled up provisionally, and delivered to an officer with instructions not to serve it until after a certain time, or the happening of a certain event, the action will not be VOL. I. 37 ent prac REQUI III. THE be issued until after the cause of action is complete (1). The Reg. Gen. GENERAL Hil. Term, 4 W. 4, prescribes that the date of the first writ shall be SITES, &c. stated in the issue, and consequently it will afterwards appear on the face 8dly. What of the nisi prius record. The pleader should therefore always ascertain degree of the date of the first writ, and state every fact to have occurred before certainty that day. When, however, the exact day is immaterial, as in an action is requirfor verbal slander, the statement by mistake in the declaration that the words were uttered after the writ issued, but before the title of the declaration, would be aided by verdict, and would not afterwards constitute a ground of motion in arrest of judgment or writ of error, because it will be inferred that the judge would not have suffered the plaintiff to have obtained a verdict, if the evidence had shown that the action was prematurely brought (i) (2). ed, 3dly, It was also essential that a place (3) should be alleged where every fact material and traversable occurred (k). But the pleading rules, Hil. Term, 4 W. 4, in order to abolish all unnecessary statements, now enjoin that venue shall be stated only in the margin, and not be repeated in the body, excepting when local description is essential; and that in trespass quare clausum fregit, the name of the close or abuttals must be stated, or a special demurrer will be sustainable; and in a declaration in an inferior Court, or upon a judgment or proceeding of an inferior Court, [*261] every material fact must be averred to *have occurred within the jurisdic tion (1). We will presently consider the doctrine of venues. Of certain ty in stating the cause of action. 4thly, It is still more material that certainty and accuracy be observed in the more substantial parts of the declaration, which state the cause of action itself. Thus, in assumpsit, the consideration of the contract and the contract itself must be fully stated; and therefore, in the instance before mentioned, a declaration stating that in consideration that the plaintiff had sold to the defendant a certain horse, at and for "a certain quantity of oil," not specifying the quantity, was holden insufficient (m). So a declaration in debt on "a certain bond," without stating the particulars, is not sufficiently certain (n); and a declaration in replevin for taking divers goods and chattels of the plaintiff, without naming them, is bad for uncertainty (o), and a declaration in trespass for taking fish, &c. or divers goods and chattels, without specifying the number or quality, is too general (p) (4). So is a declaration in ejectment for "a tenement," not showing of what description (q). On the other hand, we have seen that the declaration should contain no unnecessary statement, nor prolixity in the statement of the facts which are alleged (r). The application of those sev (i) Steward v. Layton, 3 Dowl. 430. (1) Read v. Pope, 1 Crom. M. & Ros. 302. (m) Ante, 236. (n) Id.; 13 East, 102. (0) 1 Moore, 386; 7 Taunt. 642; S. C. 8 Moore, 379. (p) Com. Dig. Pleader, C. 21. (q) Ante, 256. (r) Ante, 228, 229; Moore, 467. deemed to have been commenced until the service of the writ. Seaver v. Lincoln, 21 Pick. 267; Badger v. Phinney, 15 Mass. 359. (1) Swift v. Crocker, 21 Pick. 241; Ilsley v. Jewett, 2 Metcalf, 168; Church v. Clark, 21 Pick. 310. (2) See Bemis v. Faxon, 4 Mass. 263; Crouse v. Miller, 10 Serg. & Rawle, 155; Shaw . Wile, 2 Rawle, 280. But see Ward v. Honeywood, Doug. 61; Cheetham v. Lewis, 3 Johns. 44; ante, 259 in note. (3) Vide Denison v. Richardson, 14 East, 300, 351; Gardner v. Humphrey, 10 John. 53. (4) In an action on the case against a Judge of Probate, for appointing, as guardian to a minor, a man who was insolvent, and neglecting to take security from him for the faithful discharge of his duty as guardian, a declaration stating that the plaintiff was owner, and legal possessor of 2000 dollars worth of personal property, which was spent and unaccounted for by such guardian, was held bad after verdict. Phelps v. Still, 1 Day, 315, 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 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 statue of jcofails (x). III. THE GENERAL SITES, IV. THE SEVERAL PARTS AND PARTICULAR RÉQUISITES IV. ITS OF DECLARATIONS. 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. 66 PARTS, &c. Title, Court. Title, term. Venue, Com ment. Body, Induce 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-day of A. D.- in consideration that the plaintiff, at the request of the defendant, would retain and employ the defendant as such mence attorney, to commence and prosecute 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 plaintiff to be due to him from the defendant for fees and reward to be therefore paid ment. to the now defendant: he, the now defendant, then promised the plaintiff to observe and Consideraperform his duty as such attorney for the plaintiff in the premises. And the plaintiff saith tion. that he, confiding in the said promise of the defendant, did afterwards, to wit, on the day and Promise, year aforesaid, at the request of the defendant, retain and employ him as such attorney to com- Avermence and prosecute the said action against the said G. H. in the Court of K. B. at Westminster, ment. 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 Defend"issues" if several,] before then joined between the same parties, was about to be tried, accord- ant's ing to the course and practice of the said Court, and thereupon it then became and was breach. the duty of the now defendant as such attorney, and in pursuance of his said retainer and Cons eemployment, to cause and procure due care to be observed in ascertaining and adducing sufficient quent evidence to enable and entitle the plaintiff to obtain and recover a verdict in the said action damage. against the then defendant therein; yet the defendant, disregarding his said duty and his prom- Concluise in that behalf, did not nor would cause or procure due care to be observed in so ascertaining sion. and adducing sufficient evidence to enable or entitle the plaintiff to obtain a verdict in the action Division against the said then defendant, but wholly neglected and omitted so to do. And by reason and arand in consequence thereof, and of the careless and improper conduct of the now defendant in rangement and about the conduct of the said action for the plaintiff, afterwards, to wit, on, &c. the plain- of parts of tiff became and was nonsuited therein. And by reason thereof the plaintiff hath been and is a declaragreatly delayed and hindered in the recovery of the said money so claimed by him as aforesaid, tion in asand the plaintiff hath incurred and paid, and hath become liable to pay, to the said G. H. divers sumpsit. sums of money amounting to a large sum, to wit, the sum of £100, as and for his costs of the defence of the said action. And thereby also the plaintiff hath incurred great trouble and expense, to wit, an expense of £100, in and about the said action, which hath been and is by means of the said negligence and improper conduct of the defendant in the premises 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. 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. |