IV. ITS cause of action. 2. In debt. On statutes. this case the conclusion should be "against the form of the statutes" (q) (1). PARTS, &c. Where, however, a statute refers to a former act, and adopts and contin5thly. The ues the provisions of it, the declaration should conclude only against the form of the statute (r). But where a statute has been wholly discontinued and is afterwards revived, there seem to have been some opinions that a prosecution on it ought to conclude against the form of the statutes (s). So where an offence is prohibited by several statutes, if only one is the [ *374] foundation of the action, and the others are explanatory or restrictive, it is Per quod proper to conclude against the form of the statute in the singular number (t). The omission of the words "against the form of the statute," or "statutes," when proper to be inserted, is fatal even after verdict (u). In general, however, there is no difference as to the doctrine of amending at common law between penal and other actions (x); and the statute 3 Geo. 2, c. 26, extends the provisions of the statute of jeofails to penal actions (y); and it has before been determined that the 32 Hen. 8, c. 30, extended to penal actions (z). actio accrevit. Statement of the Debt. It is usual, in addition to the statement contra formam statuti, and of the consequent forfeiture of the penalty, to allege that "by means of the premises, and by force of the statute in such case made and *provided, an action hath accrued to the plaintiff to demand and have the said sum, &c." but this appears unnecessary (a). And even assuming it to be requisite, yet a count for a penalty on the statute 5 Ann. stating that the defendant kept a snare to kill game "against the form of the statute in such case made and provided, and by reason thereof and by force of the statute in such case made and provided an action hath accrued," is sufficient; for the first-mentioned statute refers to the 5 Ann. c. 14 creating the offence and giving the penalty; and the last mentioned statute refers to the 2 Geo. 3, c. 19, by which the whole penalty is given to the common informer, the half only of which had been given to him by an intervening statute (b). As the action of debt is only sustainable for the recovery of a debt, the Breach in breach is necessarily confined to a statement of the non-payment of the general in money previously alleged to be payable; and such breach is nearly similar, whether the action be in debt on simple contract, or upon a specialty, record or statute, and is usually as follows:-"Yet the defendant, although often requested so to do, hath not as yet paid the sum of £— -(c) above demanded, or any part thereof, to the plaintiff (or if qui tam, &c. to our said Lord the King, and to the plaintiff, who sues as aforesaid,) but hath hitherto wholly neglected and refused so to do. To the damage (q) Id.; Lutw. 212; 4 Hawk. 71; Com. Dig. Action on Statute, H. (r) 1 Lutw. 212; 1 Saund. 135, note 3; 2 Saund. 377, note 12; 7 East, 516. (s) 2 Hawk. c. 25, s. 117; sed vide 2 East, P. C. 601, 599; 2 Hale, 173; Cro. Eliz. 750; 2 Leach, 827. (1) Yelv. 11; 2 Saund. 377 note 12. (u) 2 East, 333; Willes, 599; 1 M. & Sel. 500; 3 B. & C. 186. (x) 1 Saund. 250 d; 1 Stra. 137; 2 Id. (1) Vide Hayward v. Sheldon, 13 Johns, 88; Kenwick v. U. States, 1 Gallis, 368. BODY OR SUBSTANCE.-I. IN ASSUMPSIT, 374 cause of of the plaintiff of £ and thereupon he brings suit, &c." (1). In debt IV. ITS upon a bond, whether it be a common money bond, or be a special bond PARTS, &c. for the performance of covenants, &c. within the statute (d) the penalty is 5thly. The the debt at law, and the breach in non-payment thereof is alleged in the action. above form (2). If, however, the bond have a condition within the statute, it is essential that there be upon the record an assignment of the breaches of such condition. As these breaches may be assigned in the replication as well as in the declaration, it is proposed that we notice the rules upon this subject when we treat of the replication in debt. The Damages in an action for a debt are in general merely nominal, Damages in and not, as in assumpsit, the principal object of the suit; and therefore a general in debt. small sum, as £10, is usually inserted. But if the contract declared upon, be limited to a particular sum, and the plaintiff proceed for a larger sum for interest or delay of payment, then the sum at the conclusion should be proportionably large, so as to cover the utmost interest or damages for the detention that may be claimable either by contract or damages under 3 & 4 W. 4, c. 42, s. 28 (e). *In an action by a common informer, as he is not entitled to damages, no claim for them should be inserted (f). *375] As the action of Covenant can in general only be supported on a deed (g), there is less variety in the declarations in that action than in assumpsit or debt, and therefore but few observations will here be necessary, as most of the rules to be observed in framing a declaration in assumpsit or debt equally apply in framing the declaration in this action. The Commencement of the declaration in covenant is now alike in all the superior actions commenced in either of the superior Courts. The various points which we have already observed upon with regard to the inducement or statement of introductory matter in declaring upon a lease, &c.(h); the consideration of the deed (i); the mode of setting out the deed (k); the profert(1); the usual averments and statement of title, &c.(m); and the statement of the breach (n) (3) in an action of debt; are equally applicable to the action of covenant. If the declaration profess to make profert of the indenture, it suffices for plaintiff to produce and prove the counterpart (o). The plaintiff may assign in the same count a distinct (1) It seems that a declaration in debt on bond assigning breaches under the statute, may conclude as in covenant. Gale v. O'Brian, 12 Johns. 216, S. C.; 13 Johns. 189. (2) And it makes no difference that the bond is for the payment of a sum of money by instalments. S. Paulding v. Millard, 17 Wend. 331. (8) As to the mode of assigning breaches in covenant, see 1 Met. & Perk. Dig. Tit. Covenant, Ch. IX. d. Breach. III. IN COVENANT. IV. ITS breach of each separate covenant contained in the deed (p). And the genPARTS, &c. eral pleading rules, Hil. T. 4 W. 4, reg. 5, although they prohibit sever5thly. The al counts, expressly permit several breaches. It is usual, after stating the cause of action. [ *376 ] THE STATE MENT IN ACTIONS EX breaches of covenant, to conclude by alleging "And so the plaintiff in fact saith that the defendant, (although often requested so to do), hath not kept his said covenant, but hath broken the same;" but this is mere form, and unnecessary (q). Damages being the principal object in this action (r), there should be laid as such a sum sufficiently large to cover the utmost demand, and even a claim for interest, when claimable under 3 & 4 W. 4, c. 42, s. 28 (s). *IN ACTIONS FOR TORTS. Actions in form ex delicto are Case, Trover (t), Replevin, Trespass, and Ejectment. The applicability of these forms of action has already DELICTO OF been fully considered; and in the second volume will be found a copious THE CAUSE Collection of the forms of the declarations which are usually in requisition, OF ACTION. With notes explanatory of the different allegations, &c. (u). 1st. Statement of the matter or thing injured. In actions for wrongs, the declaration should state, 1st, The matter or thing affected; 2dly, The plaintiff's right thereto; 3dly, The injury; and 4thly, The damage sustained by the plaintiff. We will consider each of these as regards general rules; and then state the particular rules relating to declarations for written and verbal Slander. In actions brought for injuries to real property (v), the quality of the realty, as whether it consists of houses, lands, or other corporeal hereditaments, should be shown (x). If the declaration charge "the breaking and entering into the plaintiff's dwelling house," the plaintiff will fail, if it appear that the defendant only broke an external rail fence, and trespassed on leads forming the roof of a counting-house, occupied by A. B. but used only as an easement to the plaintiff's house (y). In trespass to land, the term "close" is proper, although the ground be not inclosed, as it imports the exclusive right of possession and interest in the soil (z). In order to avoid the necessity for a new assignment, the pleading rules, Hil. T. 4, W. 4, reg. V. In Trespass, expressly require that the name of the close, or the abuttals, or some other description, be used in the statement, or that the defendant may demur specially, and towards instead of upon has been considered an improper description by abuttals (a). Where the declaration stated that the defendants, A., B., and C., broke a close of the plaintiff abutting on a close of the defendant, (p) 3 Co. 4 a; 1 Saund. 58 b. ii. Declaration in Detinue, Case, Trover, (q) 1 Saund. 235 a, note 7; post, vol. ii.; Replevin, Trespass, and Ejectment. See 2 Taunt. 278. (r) 13 East, 343. (s) Watkins v. Morgan, 6 Car. & P. 661, (u) The author would suggest to the stu- (v) As to the rule in a real action for the recovery of realty itself, Stephen, 2d edit. 847, 349; forms post, vol. iii. (z) Stephen, 347, 2d edit. (z) Dr. & Stud. 30; 7 East, 207; Vin. Ab. Fences; ante, 174. (a) Lempriere v. Humphrey, 4 Nev. & Man. 638; 2 Harr. & Woll. 171; and see form and notes, post, vol. ii. BODY OR SUBSTANCE.-IN ASSUMPS 376 in the singular, and it appeared in evidence that the plaintiff's close abut-IV. ITS ted on a close of the first named defendant, it was held that this was an ambiguity, not a variance (b) (1). PARTS, &c. 5thly. The cause of As trespass (c) and ejectment (d) do not lie in general for wrongs action. which relate to incorporeal hereditaments, the word "tenement" should be avoided in the first description of the premises, though after "stating [ *377 ] them with sufficient certainty," said tenements," by way of reference to the actecedent description, would not be objectionable. It is not necessary to show the quantity of the land (except, perhaps, in replevin) (e). A way ought not to be described as a "passage" (ƒ). In prescribing for, or otherwise stating a writ of common or way, or a right to tolls, &c. it is judicious to avoid claiming or stating more than constitutes the subject-matter of the particular dispute, for by this precaution a variance may be avoided (g); but in general in actions of tort the plaintiff may succeed although he only prove a part of his complaint (h). Where a declaration in case alleged that " the plaintiff was possessed of a house, belonging to and supporting which there were certain foundations, which the plaintiff had enjoyed, and ought to enjoy ;" it was held that this was a sufficient description of the plaintiff's right to the enjoyment of the foundations as an easement (i). In actions for injuring or taking away goods or chattels, it is in general necessary that their quality, quantity or number, and value or price, should be stated (k) (2); the assigned reason is, that a former recovery could not otherwise be pleaded in bar of a second action for the same goods, neither could the defendant properly defend himself (1). Therefore, in all the forms of action for a tort to goods, it is in general insufficient, even after judgment by default or verdict, to allege that the defendant injured or took, &c. "divers goods and chattels" of the plaintiff, without giving any description of them (m). And an averment that the defendant took the plaintiff's "fish," not showing their number or nature (n); or "divers, to wit, ten articles of household furniture," not stating their nature or quality (o); is substantially defective. It must be confessed that as the description of goods or land must in general be ex (h) Id.; post, 386. (i) 1 Cromp. & Jerv. 20. (k) See 11 Rep. 25, 26; 1 Saund. 333, n. (1) M'Clel. R. 278; 11 East. 576. (n) 5 Rep. 34 b; see observations 2 Saund. (0) 8 Moore 379; see, however, 2 Saund. (1) In trespass quare clausum fregit, it is necessary to prove the abuttals of the close, as stated in the declaration; but the abuttals are not to be construed strictly. Wheeler v. Rowell, 6 N. Hamp. 215; Hogmire v. M'Coy, 2 Harr. & Johns. 341; Hooker v. Hicock, 2 Aiken, 172. Thus, where a close was described as abutting southerly on W.'s land, it was held, that this did not imply that it was abutting all the way southerly on W.'s land. Wheeler v. Row ell, 6 N. Hamp. 215. See Frean v. Cruikshanks, 3 M'Cord, 84; Rich v. Rich, 16 Wendell, 668; Peaslee v. Wadleigh, 5 N. Hamp. 317; Rice v. Hathaway, Brayt. 231; Austin v. Morse, 8 Wendell, 476; Ellet v. Pullen, 7 Halst. 357; Smith v. Wilson, 1 Dev. & Bat. 40; White v. Moseley, 5 Pick. 230. (2) Vide the people v. Dunlap, 13 Johns. 446. IV. ITS ceedingly similar, there is but little practical utility in this rule except as 'PARTS, &c. regards the description of a close by abuttals. 5thly. The cause of action. [ *378] 2dly. of the right or such mat In trover, trespass, and case, less particularity is required than in detinue and replevin, because it is only in the two latter forms of action. that the plaintiff can claim or *recover the goods themselves (p). In trover, trespass, and case, damages only are recoverable, and the specification of quality and quantity in a general way is allowed; as "two packs of flax," "two ricks of hay," a "library of books "(q)(1). But in detinue the value of the goods, either of each article, or the aggregate value of the whole, should be stated (r). Perhaps less particularity may be required where the gravamen or gist of the action is the breaking and injuring a house, &c. and the injury to goods is laid chiefly as aggravation; as trespass for breaking, &c. a house and taking "several keys" belonging to the doors thereof (s), or damaging "the goods and chattels therein," and wrenching open and injuring the "doors thereof" (t). With regard to the quality or species of the goods, the plaintiff is perhaps bound to prove the fact as laid (u); but with regard to the quantity or number and value of the goods, he may prove less than he charges in his declaration, but he cannot prove more, although the statement be under a videlicet (x); as if the declaration be" divers, to wit, ten horses," he may show an injury to or conversion of one horse, but not of eleven horses (y). Of course, therefore, it is prudent to lay the quantity to an extent clearly adequate to cover the largest possible amount, but at the same time according to the facts. The plaintiff's right or interest in or title to the matter or thing affectStatement ed may exist independently of any particular obligation or duty on the plaintiff's part of the defendant; or it may be a right to insist on the performance by the defendant of some particular duty, founded either on contract between interest in the parties, or an implied obligation of law, resulting from the defendant's ter,&c. (2). particular character or situation (2). Where the law gives a general or public right, as for all persons to fish in a public navigable river, it is improper, at least unnecessary, specially to state such public right, and it will suffice to show with brevity that there was a public right, as the instance just put that such a particular place was a public navigable river, (p) 2 Saund. 74, note 1. (q) 2 Saund. 74, note 1; Stephen, 349, 350. Cattle may be described with a videlicet under the word "chattels," 17 Edw. 8, pl. 41. (r) 4 B. & Ald. 271; per Cur. (s) Salk. 643; after verdict, 2 Saund. 74 b, n. 1; Stephen, 2 ed. 350. (t) 3 Wils. 292. (u) See Stephen, 2 ed. 352. (x) As to the videlicet in general, see ante, 817. (y) See 8 Taunt. 107; M'Clel. Rep. 270; Stephen, 2d edit. 351; Rep. T. Hardw. 121; 2 Saund. 74 b; Gilb. Evid. 229. (z) It seems that unless inducement be traversed by plea it now stands admitted. Dukes v. Gostling, 3 Dowl. 619. (1) In an action of trover, the declaration need not state the price or value of the thing converted. Pearpoint v. Henry, 2 Wash. 192. See Vandyke v. Dodd, 1 Halst. 129. In trover to recover bank bills, they must be particularly described. Little v. Gibbs, 1 South. 211. As to a promissory note see Taylor v. Morgan, 3 Watts, 333. In the Receivers v. Neilson, 3 Green, 337, it was held, that in trover for promissory notes the plaintiff need not state the dates or times of payment, he being presumed not to have them in his possession. "A Black mare, of the value of $100" held a sufficient description. Heddy v. Fullen, 1 Blackf. 51. See Vanarken, v. Wickham, 2 South. 509. So four horses the property of the plaintiff. Beaumont v. Yantri, Breese, 8. Annexing a schedule to a declaration in trover or replevin is impropKinder v. Shaw, 2 Mass. 398; Rider v. Robbins, 13 ib. 284. er. |