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Cornell University Library 
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 v,1 
 
 A treatise on pleading, and parties to a 
 
 3 1924 020 173 468 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020173468 
 
A 
 
 TREATISE 
 
 LEADING, 
 
 AND 
 
 PAKTIES TO ACTIONS, 
 
 WITH 
 
 SECOND AND THIKD VOLUMES, 
 
 CpKIAININO 
 
 PRECEDENTS OF PLEADINGS, 
 
 AND 
 
 AN APPENDIX OE FORMS 
 
 ADAPTED TO 
 
 THE RECENT PLEADING AND i OTHER RULES, 
 
 ■WITH 
 
 Nihil simul inventum est et perfectum. — Co. Lit. 230 a. 
 
 IN THREE VOLUMES. 
 VOIi. I. 
 
 By JOSEPH gHITTY, Esq., 
 
 OF THE MIDDLE TEMPLE, BARRISTER AT LAW. 
 
 Thirteenth American Sdition, 
 
 FROM THE SIXTH LONDON EDITION. CORRECTED AND ENLARGED, 
 With the new matter incorporated of the Text of the Treatise in the 
 
 seventh london edition. 
 By H. greening, Esq., op Lincoln's Inn. 
 WITH NOTES AND ADDITIONS. BY JOHN A. DUNLAP AND E. D. INGRAHAI, ESQKS. 
 
 AND ADDITIONAL NOTES, AND REFERENCES TO LATER DECISIONS, 
 
 By J. C. PERKINS, Esq. 
 
 SPEINGFIELD, Mass. 
 PUBLISHED BY G. & C. MERRIAM. 
 1859< 
 
£ntered according to Act of Congress, in the year 1869, by 
 
 G. & C. Mebrum, 
 
 In the Clerk's OfSce of the District Court of Massachusetts. 
 
 "B 793/(S 
 
 WEST EBOOEFIELD, MASS. 
 PBINIED BY THOMAS MOBET. 
 
PUBLISHERS' NOTICE. 
 
 In presenting to the Profession the Thirteenth American Edition 
 
 of Chitty's Pleadings, "the Publishers beg leave to say, that the 
 
 present edition has received the usual thorough annotation and 
 
 editorial revision of its former accomplished American editor, 
 
 Judge Perkins, which is a sufficient guaranty of its accuracy and 
 
 completeness in that department. 
 
 G. & C. MERRIAM. 
 Springfield, June, 1859. 
 
 ADVERTISEMENT 
 
 TO THS 
 
 NINTH AMERICAN EDITION, 
 
 Henry Greening, Esq., the editor of the Seventh and last 
 English edition of Chitty's Pleading, in his preface to the woi-k 
 states, in reference to the changes which have been made by him, 
 that " the alterations in the text of the first volume will be found 
 to consist principally in striking out those portions, which were 
 more historical than useful in practice ; such as the account of the 
 ancient numerous and ' perplexing modes of commencing personal 
 actions ; the parts relating to. bailable process, and the old forms of 
 commencing Declarations ; as well as the account of the defences 
 admissible under the general issue before the Pleading Rules of 
 Hil. T. 4 Will. 4,' contained in the seventh chapter of the last edi- 
 tion : in the place of which, he says, " I have endeavored to give 
 the present law of practice, using of course as much of the old ma- 
 terial as I found applicable to the subject." 
 
iv ADVERTISEMENT TO NINTH AMERICAN EDITION. 
 
 It is presumed, that the system of Pleading Rules, above, referred 
 to, has not been adopted, very extensively at least, in the United 
 States, and consequently no such sudden changes would be expedi- 
 ent or admissible in a work on the subject of pleading here. Those 
 parts which have been very properly struck from the work by Mr. 
 Greening, for the benefit of the English Practitioner, are scarcely 
 less useful to be retained for the purposes of the law as at .present 
 existing in this country, than they were at the time they were 
 originally inserted. 
 
 It has consequently not been thought advisable, in the prepara- 
 tion of the present American edition, to leave out those portions of 
 the work, which have been omitted by Mr. Greening ia his edi- 
 tion. 
 
 Mr. Greening has, however, made some additions to the text of 
 the work as left by Mr. Chitty. These additions- occur mainly in 
 the seventh chapter. They have been carefully selected, and are 
 all inserted in the Notes to that chapter in the present American- 
 edition. The student and practitioner will therefore find, that 
 . while they have not lost any portion of Mr. Chitty's invaluable lar 
 bors, which might be of service in this country, they have gained, 
 and will have in this edition, all the additions and improvements, 
 which Mr. Greening has thought it necessary or proper to make to 
 the text of the first volume of his edition. 
 
 As to the Forms in the second and third volumes, those of Mt. 
 Ghitty's former editions have been preserved and retained, for the 
 same reasons given by Mr. Ingraham in his Preface to the Eighth 
 American edition of this work. 
 
 This Ninth American edition will be found to contain large and 
 important additions to the American Notes; and a great number of 
 citations have been added to former Notes, and many entirely neiv 
 Notes have been inserted. It is hoped, that the inquiries of the 
 student will in some measure be satisfied, apd the labors of the 
 ^practitioner lightened, thereby. 
 
 J C P 
 
 SAtEW, April 22, 1844, • • . 
 
THE 
 
 AMERICAN EDITOR'S PREFACE 
 
 TO TEE 
 
 EIGHTH AMERICA! EDITION. 
 
 lilt the time when the call of the Profession induced the PubliBh^^ 
 ers 'Of the seventh and former American editions of Mr. Chitty's 
 ■work'on Pleading, to make arrangements to put it again to press, 
 the first and second volumes of the sixth London edition ihad been 
 received from. England, but the third was unpublished. An laltten- 
 tive examination induced the Editor to prepare the first volume only 
 of that edition, containing the principles and rules upon which 
 headings should be framed, for republication. 'The second and 
 third volumes of the sixth American 'Edition, with additional notes, 
 were then re-printed, and the Precedents adopted as those of the 
 seventh American Edition, as they "have been of the present. 
 
 The Editor was induced to adopt that course, because sufficient 
 reason appeared to him to exist for not presenting to the Profession 
 in the United States a set of Precedents, which, in the numerous 
 jurisdictions of the Union, would not be considered as having the 
 stamp of authority. He still thinks that his view was correct, and 
 has adhered to it in preparing the present edition. The Precedents 
 under the New Eules are very concise and convenient ; but it would 
 be presumption in the Editor, upon his own view of their superior 
 utility, to offer them instead of those which, from long adoption and 
 use, have the weight of judicial decision. 
 
 An Appendix of Forms in Assumpsit, adapted to the New Rules, 
 from the second volume of the new London edition, is inserted at 
 
Vi AMISICAN editor's PREFACE. 
 
 the end of the third volume of the seventh American, and of this 
 edition. 
 
 It was the intention of the publishers when the third English 
 volume was received, if the wishes of the profession in this country 
 seemed to require it, to issue a Supplement of Forms prescribed by 
 the New Eules, and some others which have been prepared by emi- 
 nent pleaders, who have deemed a more succinct mode of declaring 
 in all cases to be authorized by the spirit of one of those Eules.* 
 The adoption generally of those forms in practice in this country 
 would have been the sanction of the Publishers for their insertion 
 in a future edition. The publication of the excellent " PRECE- 
 DENTS IN PLEADING," f by Mr. Joseph Chitty, Jr., in 1839, 
 rendered such an addition to this work superfluous. The pleader 
 who is desirous to state his case with brevity and precision, will 
 there find the best guides, and perhaps the time is not far distant 
 when he will resort to them, on all important occasions, in prefer- 
 ence to any others. 
 
 Philadelphia, November 2, 1840. 
 
 *Keg. Gen. Trin. T. 1 "W. 4, 
 
 tPDBLisHEEs' NoiB.— An American edition of the work here referred to, Chiitt'b 
 PKE0EDENT9, in 2 Tols. was issued by the publishers of Chitty's Pleading, in 1839, and 
 has proved highly satisfactory to the Profession in this country. 
 
PEEFACE 
 TO THE SIXTH ENGLISH EDITION. 
 
 The subjects of this work are, 1st, who are to be the Parties to an action ; 
 2dly, the proper Forms of Action, and which must now be accurately stated, 
 even in the wnV ; and 3dly, the Pkadinffs therein. And as a mistake in 
 either of these would in general be fatal to the action or the defence, it is 
 obvious that a very accurate knowledge of these subjects is essential not only 
 to the professed Special Pleader and Barrister, but also to every Attorney, 
 who is responsible to his client for the sufficiency of the proceedings, and 
 who, if generally informed on the subjects of this volume, and duly attentive, 
 would frequently discover errors which have been overlooked by the pleader, 
 or barrister, and by a timely -suggestion might prevent a disastrous defeat, 
 which would be injurious to his own as his client's interest, and discreditable 
 to the administration of justice. Since the recent enactments and rules, these 
 subjects have greatly risen in practical importance, and a new edition of 'the 
 work has become essential. The editors have spared no exertions to render 
 the work more worthy of the flattering reception the prior editors have re- 
 ceived. ■ 
 
 The principal modem alterations in Pleadings have been the prohibition of 
 more than one count upon each cause of action, and the exercise of more care 
 in preparing that single count than heretofore, and the abolition or rendering 
 less frequent the use of a plea of general issue, and requiring almost every 
 ground of defense to be pleaded specially. The great increase in the num- 
 ber of pleas has rendered it necessary to prepare an entirely new Third 
 volume of Pleas and Replications, and subsequent Pleadings, most of 
 which have occurred in actual practice, and been decided to be sufficient, and 
 all have been carefully examined, adapted to the new rules, and annotated. 
 
 The modern Statutes and liules relating to Practice and Pleading are so 
 peculiarly important, that it has been deemed advisable to print the same in 
 the Appendix concluding this volume ; and Students and practitioners will 
 find it essential to read them attentively, so as to be well informed upon the 
 general import, and not merely to refer to them occasionally. 
 
 The Practitioner who will resolve to make himself master of these confes- 
 sedly dry but essential subjects of legal knowledge, will soon find himself on 
 the vantage ground, and in many collateral circumstances, especially as re- 
 gards Evidence, would be enabled to anticipate advantages or difficulties 
 which others would not perceive ; at all events, he cannot safely even com- 
 mence an action without being well informed upon all subjects relating to the 
 parties to an action, which constitutes the basis of subsequent proceedings. 
 12th May, A. D. 1836. 
 
PUBLISHERS' ADVERTISEMENT. 
 
 The original paging of the early editions of Chitty's Pleadings, 
 having been kept up in the subsequent ones, in order to prevent 
 confusion in the frequent references which are made to this work by 
 other writers, various errors have crept into the Analytical Tables, 
 and Index to each Volume. 
 
 In some cases several pages of the old edition have been can- 
 celled, while the corresponding heads in the Index have been suffer-' 
 e'd to remain, and confusion has arisen from this source. 
 
 Knowing the importance to the Profession of being able to refer 
 at once to the several heads named in the Index, the Publishers 
 have had the Indexes and Analytical Tables carefully revised, col- 
 lated with the text, and every error corrected, so that it is believed 
 no farther inconvenience will be experienced on this account. 
 
 Springfield, Mass., Oct. 1840. 
 
PREFACE 
 TO THE FIRST EDITION. 
 
 In submitting this treatise to the pubjic, it may not be improper 
 to prefix a short prospectus or analytical view of its contents, by 
 which the reader may be enabled to judge, how far the subject pro- 
 . posed to be considered may be worthy of his attention. 
 
 Upon the Practice of the Courts of common law, there are 
 already before the public several very able treatises ; but there is 
 no work of any magnitude which points out, the Parlies to Actions, 
 or the Forms of Action, or the Pleadings therein; and the very 
 frequent defects in actions and defences, occasioned by mistakes in 
 these points, sufficiently evince the utility of a practical work upon 
 the subject ; I have therefore been induced to submit the following 
 pages to the profession. 
 
 In the first chapter, which relates to the Parties to an Action, I 
 have endeavored to point out who should be made the plaintiffs 
 and who the defendants, as well in actions on contracts as for torts, 
 and not only with reference to the interest and liability of the origi- 
 nal parties, and the number of them, and whether standing in the 
 situation of agents, joint-tenants, tenants in common, or partners, 
 and .who are to join or be joined ; but also where there has been an 
 assignment of interest, or change of credit, or survivorship between 
 several, or death of all Ihe contracting parties, or bankruptcy, in- 
 solvency or marriage. The consequences of mistakes in the proper 
 parties, and how they are to be taken advantage of, and when they 
 are to be aided, are also pointed out. 
 
 In the second chapter are considered the Form and the paHicular 
 
 applicability of each Action; the plea9ings, judgment,- and costs 
 
 therein in general ;■ the consequences of mistake ; the Joinder of 
 
 different Forms and of different rights of actio^ ; the consequences 
 
 YoL. J. B 
 
X PREFACE. 
 
 of Misjoinder; and the Election of the best remedy where the 
 .plaintiff has the choice of several. In, considering each personal 
 action, viz. assumpsit, debt, covenant, detinue, case, trover, re- 
 plevin, trespass, and ejectment, I have endeavored to confine my 
 observations to the cases vrhere the action is sustainable, or when it 
 is preferable to another, remedy, without inquiring into the nature 
 of rights or of injuries, which would have been foreign to the object 
 of the treatise (a). I have however, in one instance, thought it ad- 
 visable to depart from this plan, in order the better to explain the 
 distinction between the action of trespass and that of trespass on 
 the case ; and for this purpose I have endeavored to state the dis- 
 tinctions between torts committed in fact, or in legal consideration, 
 with and without force, and between torts immediate and conse- 
 quential, and how far the legality of the original act, or the de- 
 fendant's intention, may affect the form of action, and the difference 
 arising from the circumstance of the defendant's having acted under 
 color of process. The consequences of mistake in the form of action 
 are also stated. 
 
 The Joinder of different Forms, and of different Rights of action, 
 and the consequences of mistake, are of the greatest importance to 
 the' success of a cause, and I have, therefore, with some minuteness, 
 pointed out the particular instances of joinder, which may be most 
 likely to arise in practice. 
 
 In various cases the plaintiff has an Election of several different 
 forms of action for the same injury, and a judicious choice is so ma- 
 terial, that it may frequently enable the plaintiff to enforce his claim, 
 which would be defeated or delayed by the adoption of a different 
 course ; I have therefore stated several leading points, which may 
 direct the Pleader in his choice of the various remedies. 
 
 In the third chapter, a few General Rules relating to Pleading 
 are collected, and pursuing the definition of pleading (viz. a state- 
 ment in a logical and legal form of the facts of which the Courts 
 
 (a) la many works, under the fitle of a particular action, we find the nature of rigto 
 considered; as, for instance, under the head " Assumpsit." after stating that it lies on a 
 bill of exchange, we find the whole law upon bills of exchange is collected. This is not a 
 convenient mode of arranging the subject in a picarfijig point of view, where tbs object 
 of inquiry is merely the application of the/orm of action, and not the right. 
 
PREFACE. , X 
 
 are not bound ex officio, to take notice,) I have first pointed out 
 what facts are necessary to be stated,, distinguishing those of which 
 ..- Oourt will, ex officio, take notice, without their being shown in 
 pletv. ag; and secondly, the mode of stating those facts with re- 
 ference to certainty, and other particulars; and thirdly, 1 have 
 considered the rules of construction concluding the chapter with the 
 division of the parts of pleading. 
 
 The fourth chapter relates to the form and requisites of the 
 PrcBcipe, when the plaintiff proceeds by special original, and of the 
 Declaration in personal actions ; and with respect to the latter are 
 stated, first the general requisites, and secondly, the different parts, 
 and more particular requisites whether in actions founded on con- 
 tracts or for torts. In assumpsit, the appropriate special and com- 
 mon counts are fully examined, and the structure of declarations in 
 debt and covenant is separately and distinctly considered. 
 
 Actions in form ex delicto are so multifarious, that I have thought 
 it better to refer the reader to the Precedents and Notes in the 
 Second Volume, than to attempt, in the First, to point out the 
 structure of the declaration in each particular case ; I have, how- 
 ever, considered the general rules to be observed in framing decla^ 
 rations in actions for torts, and which will be found to relate to the 
 statement of, 1st, the matter or thing affected ; 2dly, the plaintiff's 
 right or interest; 3dly, the injury; and, 4thly, the resulting 
 damages. 
 
 The utility of Several Counts in the same declaration, and the 
 • forms thereof, are also treated of in this chapter, which concludes 
 with a summary of the instances in which different defects in a dec- 
 laration will be aided. 
 
 The Claim of Conusance, statement of the defendant's Appewr- 
 ance and Defense, the Demand of Oyer, and statement of a Deed 
 upon it, and the different descriptions of Imparlances, being con- 
 nected with Pleading, are 'examined in the fifth Chapter. 
 
 In the remaining chapters are considered in their natural order — 
 Pleas to the Jurisdiction and in Abatement, and the proceedings 
 thereon ; pleas in Bar to the action and Avowries and Cognizances 
 in replevin, and pleas and notices of Set-off; RepliGations and iVeiip 
 Assignments, and pleas in bar to avowries and cognizances, in re- 
 
Xii . PREFACE. 
 
 plevin ; Rejoinders, and the subsequent Pleadings ; Issues, JRe- 
 pleaders. Pleas Puis Darrein Continuance; Demurrers, and Join- 
 ders in Demurrer,; and this volume concludes with a copious Index 
 of the Contents. 
 
 As the principal object of the First Volume is directed to the 
 statement of the General Rules affecting the Pleading, I have 
 thought it advisable in a Second Volume to give Precedents of the 
 Pleadings most likely to occur in practice, with notes. The con- 
 tents of this Second Volume will appear from the Analytical Table 
 prefixed, and from the Index at the end of the Third Volume. 
 
 The form of Courts, (being the commencements and conclusions 
 of declarations in each Court, and in particular actions,) are incor- 
 porated in the present edition ; but as the Precedents of declarations 
 on Bills of Exchange, Checks, and Promissory Notes, are printed in 
 the appendix of my work on Bills of Exchange, they are not given 
 at length in the Second Volume. The counts for common debts, in 
 .all the -cases which ordinarily occur in practice, are given on ac- 
 count of their great utility ; the statement of the subject-matter of 
 the debt in these Precedents, not only serving in declarations in 
 assumpsit, but also in debt on simple contract, pleas and notices of 
 set-off, and in af&davits to hold to bail. 
 
 In stating different titles to real property, and the conveyances 
 and other means by which such titles have been acquired, the 
 pleader frequently has considerable difiBculty ; I have therefore 
 given a great variety of Precedents under this head. With respect 
 to other special counts, and to pleas, replications, rejoinders, &c., I 
 have endeavored to giVe one or more of the most usual Precedents 
 under each head, and have in general, in the notes, referred to the 
 Precedents which may be found in print. It was impracticable to 
 give a Precedent for every case which might occur, but those con- 
 tained in this Volume may be readily applied to the particular cir- 
 cumstances of each case, or at least may assist in the structure of 
 other pleadings ; and though the student may derive some assistance 
 from this collection, yet he must not thereby be induced to refrain 
 
PREFACE. xm 
 
 from taking, or at least analyzing other Pleadings, according to the 
 course which his owa judgment, or "that of a friend more experi- 
 enced, may suggest. • 
 
 The utility of a work of this description must depend on the mode 
 in which the subject is arranged, the correctness of the positions 
 supported by legal decisions, for selections of the best authorities, 
 and the facility of access or means of a full and accurate Index. 
 To these points, therefore, I have endeavored to pay attention, and, 
 besides the Reports which I have consulted, the reader is frequently 
 referred to the Digests and Elementary writers. Indeed, it was 
 impracticable to write on the subject upon which the authors alluded 
 to had touched, without occasionally finding some parts pre-occupied, 
 and the matter so ably treated of as to leave it open to me to do 
 little more than enlarge upon, and arrange such parts of the subject 
 according to my own plan. When this has occurred, I have con- 
 sidered that it would be the most candid mode of acknowledging the 
 assistance I have derived from these works, and at the same time 
 most useful to the profession, if, in the notes, I referred to those au- 
 thors, in addition to the reported decisions, sanctioning my own view 
 of the subject by the weight of their authority. 
 
 The kindness of my friends has so engaged me in professional 
 avocations, that I have with difllculty prepared this work for publi- 
 cation, and the various interruptions which I have experienced, must, 
 I fear, have occasioned some inaccuracies, for which, however, I 
 hope the candor of the reader will make allowance. 
 
 J. CHITTY. 
 
 Temple, 1th November, 
 A. D. 1808. 
 
TABLE 
 
 CONTENTS 
 
 \^The figures refer to the original paging of the sixth English Edition 
 as numbered in the margin ; as they also do in the Index, at tke end of 
 this volume.'] 
 
 C HAPTEE I. 
 
 Of the Parties to Action, 1 to 93 
 
 \. In Actions in Form Ex Contractu, 2- 
 I. Plaintifs 2 to 33 
 
 1, as between the original parties and witlji reference to the inter- 
 < est of the plaintiflf in the contract, 2 to 8 
 
 ^ in general party to wbom Jegal interest is vested must be the 
 
 plaintifi; 2 
 on bonds, 3 
 
 on deeds inter partes, i,b. 
 on deeds poll, 4 
 on simple contracts, ib. 
 exception in case of bills of exchange, 5 
 against carriers, 6 
 when an agent may sue, ib. 
 qualified right to use the name of a trustee, 8 
 
 2, with reference to the numher of plaintiffs and when they should 
 join or seTer, 8 to 15 
 
 joint interest, 8 
 when several, 9 to 15 
 several interests, 16 
 ^ agreement that one should sue, 11 
 
 a covenantee not executing, ib. 
 by partners, ib. 
 by tenants in common, 12 
 joint tenants and parceners, 13 
 consequences of mistake, ib. 
 trustees, &c. by statute, 14 
 
 3, when the interest in the contract has been assigned, 15 to 18 
 
 by successor, &c. by statute, 15 
 real property, 16 
 
 4, when one of several obligees, &c. is dead, 19 
 
 5, in the case of executors or administrators, heirs, &c. 19 to 22 
 
 6, in the case of bankruptcy, 22 to 28 
 
 7, in the ease of s.n insolvent debtor, 26 to 28 
 
 8, in the case of marriage, 28 to 33 
 n. Defendants, 33 to 93 
 
 1, as between the original parties, and with reference to the liability of 
 
XVI TABLE OF 
 
 CHAP. I. — Op the Pakties to Actions — {continued.) 
 the party, 23 to 41 
 
 in cases where a contract can only be implied, 34. 
 
 when or not against a trustee, ib. 
 
 against agents, &c. ib. to 39 
 
 partners, tenants in common, &c, suing each other, 39 to 41 
 
 2, with reference to the number of the defendants, and who must be 
 sued, 41 to 47 
 
 joint contract, 42 
 
 several contract, 43 
 
 joint and several contract, ib, 
 
 3, in case of an assignment of interest or change of credit, and of cov- 
 enants running with the land, &c. 47 to 50 , 
 
 in case of covenants, running with real property, 48 
 
 4, when one of several obligors, &;e. is dead, 50 
 
 5, in case of executors or administrators, heirs and devisees, 51 to 53 
 
 6, in the case of bankruptcy, 53 to 55 
 
 7, in the case of an insolvent debtor, 55, 56 
 
 8, insolvency, 56, 67 
 
 9, in the ease of marriage, 57 to 59 
 
 where husband survives, 58 
 where wife survives, 59 
 consequences of mistakes, i^. 
 TI. In Actions im Form Ex Delicto. 
 1. Plaintiffs 
 
 1, who to sue, with reference to the interest oi \he plaintiff, 60 to 64 
 
 for injuries to the person, 60 
 for injuries to personalty, 61 
 for injuries to real property, 62 
 
 2, who to join or sever, with reference to the number of plaintiffs, 64 to 
 66 
 
 for injuries to real property, 65 
 consequences of non-joinder, 66 
 consequences of misjoinder, ib. 
 
 3, when the interest in the property has been assigned, ib. 67. 
 
 4, when one of several parties interested is dead, 67, 68. 
 
 5, in case of the death of the party injured, 68 to 71. 
 
 injuries to the person, 68. 
 
 injuries to real property, 69 
 
 alterations by 3 & 4 W. 4, c. 42, in the rule actio personalis &c. 
 and actions for injuries to personal and real property, by and 
 against executors and administrators, 70, 715 
 
 6, in case oibankrvptcy, 71, 72 
 1, in case of insolvency, 1'2, 
 
 8, in case of marriage, I'i to 75 
 
 as regards injuries to the person, 73 
 
 as to personal property, 74 
 
 with respect to real property, ib. 
 
 consequence of misjoinder or nonjoinder, 75 
 n. Defendants, 76 
 
 1, as between the original parties, and with reference to their liability, 
 76 to 85 
 
 infants, 76 
 
 married women, ib. 
 
 lunatics, 76 
 
 corporations, ib.' 
 
 companies, ib. 
 
CONTENTS. XVU 
 
 CHAP. I. — Of the Parties to Actions— (continiced.') 
 commissioners or trustees under a statute, 77 
 judicial and other public ofBcers, &c. 78 
 tenants in common, 79 
 
 against a partner or a third person colluding With him, ib. 
 who are lialA, as principals, ib. 
 liability of the sheriff and his officers, 93 
 liability of owners of animals, 82 
 injury of land, 83 
 liability of agents, servants, and attorneys, ib. 
 
 sheriffs, 84, 85 
 
 intermediate agents, 85 
 
 2, with reference to the number of the parties, 85 to 89 
 
 consequences of misjoinder or nonjoinder, 86 
 costs now payable in, general to an acquitted defendant, unless, 
 &c. 88 
 
 3, where the interest has been assigned, Sfc, 89 
 
 4, in case of the death of wrong-doer, 89 to 91 
 
 5, in the case of hanhruptcy, 91, 92 
 
 6, insolvency.^ 92 
 
 7, in the case of marriage, 92, 93 
 
 consequences of mistake, ib. 
 
 CHAPTEE II. 
 Of the Foems of Actions, 94 to 212 
 b general, 94 to 98 
 
 origin of the different forms of action, 94 
 
 enactment of stat. West. 2, that as new injuries arise, new writs to be 
 
 framed, 95 
 the circumstance of a remedy being new in form not conclusive as to its 
 
 inadmissibility, 96 
 ancient prescribed forms not to be departed from, ib. 
 actions are real, personal, or mixed, 97 
 actions are in form ex contractu or ex delicto, ib. 
 soggestions on the inode of considering and arranging the subject, 98 
 In actions ex contractu, 98 to 108 
 
 I. Assumpsit, 98 to 125 
 
 when the peculiar remedy, 102 i 
 
 of assumpsit, where there are several securities, &c. 103 
 
 for rent, &o. 105 
 
 on a statute, 106 
 
 on a judgment, ib. 
 
 by and against corporations, ib. 
 
 in general there must be a contract, 107 
 
 declaration, &:c. ib 
 
 II. Debt, 108 to 115 
 in general, 108 
 
 on simple contracts, 109 
 on specialities, 110 
 on records. 111 
 on statutes, 112 
 
 when the peculiar remedy, ib. 
 
 when not sustainable, 113 
 
 of wager of law and other difficulties and advantages, 113 
 
 declarations, pleadings, &c. 1 14 
 m. Covenant, 115 to 120 
 in gener:il, 1 1'i 
 Vol. I. C 
 
lyill . TABLE OP 
 
 CHAP, n.*— Or itiE FoEMS or Action — (continued.) 
 implied for title, 6 Bing. 658 ib. 
 on what particular deeds and covenants it lies, li6 
 on leases, ib. 
 
 when the peculiar or best remedy, 118 
 when not sustainable, ib. f 
 
 declarations and pleadings, 120 
 IV. Detinue, 121 to 126 
 
 1, for what properly it lies, 121 
 
 2, the plaintiff's interest, 122 
 
 3, the injury, ib. 
 
 detinue against an infant who disaffirms the contract 
 
 on the ground of infancy, 123 
 the pleadings, &c, 1 24 
 In actions inform ex delicto, 126 to 196 
 nature of injuries, ex delicto, 125 to 132 
 when forcible or not, 1 25 
 when immediate or consequential, 126 
 ■vfhen the consequential damage not too remote, 129 
 as to the legality of the original act, ib. 
 intent when material, ib. 
 summary of the principle points on which the form of action when ex 
 
 delicto depends, 131 
 1. Action on the case, 132 to 145 
 to persons absolutely, 133 
 to persoils relatively, 134 
 to personal property, and for breach of a duty or conti^t,and when 
 
 it is a concurrent remedy with assumpsit, ib. 
 to real property, 139, 715 
 on a statute, 143 
 
 of the advantages of this action in preference to others, ib. 
 its disadvantages, 1 14 • 
 the pleadings in general, &c. 146 
 n. Trcmer, 146 to 161 
 
 general observations, 146 
 
 1, the property affected, 146 to 148 
 
 2, the plaintiff's interest, 148 to 161 
 
 1, of an absolute property in the goods, 148 
 
 2, a special property or interest, 151 
 
 3, a light of possession, 162 
 
 3, the injury,. 151 to 16i 
 
 1, wrongful taking, 151 
 
 2, wrongful assumption of property, 154 
 by and against a tenant in common, 156 
 
 '2, of a wrongful detention, and herein of a demand and 
 refusal, ib. 
 
 1, when a demand is necessary, 157 
 
 2, who should demand, ib. 
 
 3, upon whom the demand should be madtij 168 
 
 4, demand, how made, 159 
 
 5, demand, when made, ib. 
 
 6, of the refusal, 160 
 
 when optional to bring trover or ttespass, 
 
 161 
 declaration, &c. ib. 
 in. Replevin, 162 to 166 
 
 1, the property affected, 163 
 
CONTENTS. ^ 
 
 CHAP. n. — Oe the Forms op AcTioN-^(c(»i«ewMee?.) 
 
 2, the plaintiff's interest, ib. 
 
 3, the injtiry, 164 
 
 declaration, &c. 165 
 IV. Trespass, 166 to 186 
 in general, 166 
 
 First, for injuries not under process, 167 to 181 
 
 1, injuries to the person^ 167 
 
 2, to personal property, 168 
 
 1, the nature of the personal property, ib. 
 
 2, nature of the interest in the personal property, 
 ib. 
 
 2, injuries to personalty not under process, 169 to 
 173 
 
 3, the nature of the injury to the personal property, 
 and of the person committed, 171 
 
 3, to real property, 173 
 
 1, the nature of the real property affected, ib. 
 
 2, injuries to realty not under process, 174 to 180 
 
 3, the nature of the injury to real property and of the 
 person committing it, 178 
 
 against a party for trespasses of others or of his 
 cattle, &c. 180 
 
 liability for trespasses of others or of cattle, 
 181 
 Secondly, und'er aoforof legal proceedings, 181 to 186 
 
 1, for erroneous proceedings where jurisdiction, 181 
 
 2, where no jurisdiction, 182 
 
 3, irreglilar proceedings, 184 
 
 4, where process misapplied, 185 
 
 5, when jtfocess is abused, ib. 
 
 6, ministerial officer and party accusing, ib. 
 
 7, if pfoceedings regular in form, 186 
 pleadings, &c. ib. 
 
 V. Ejectment, 187 to 193 
 in general, 187, 188 
 
 1, for what property it lies, 188 
 
 2, the title thereto, 189 
 
 3, the injury, and by whom committed, 191 
 
 pleadings, &c. ib. 
 
 VI. Of the action of mesne profilB, 1 93 to 196 
 in general, 193 
 
 by whom to be brought, 194 
 against whom, 195 
 the declaration, pleas, &c. 196 
 the damages recoverable, ib. 
 consequences of mistaking in form of action, 197, 198 
 Of joinder of actions, 199 to 206 
 
 1, joinder of different forms of action, 199 
 
 2, joinder of Sereral rights of action or liabilities, 201 
 
 1, partners, 202 
 
 2, husband and wife, ib. 
 
 3, assignees of bankrupt, 202 
 
 4, executors, &c. 203 
 
 3, consequences of misjoinder, 205 
 Pf the election of actions, 207 to 212 
 
 1, nature of the plaintiff's interest in matter afiected, 207 
 
 2, bail and process, 208 
 
XX TABLE OF 
 
 C HAP. II. — Op the Foems of Action — (continued. ) 
 
 3, the number of parties, ib. 
 
 4, the number of causes of action, 209 
 
 5, the defense, 210 
 
 6, the venue, ib. 
 
 7, the evidence, 211 
 
 8, cosfB, ib. 
 
 9, judgment and execution, ib. 
 
 effect of election, 212 
 
 CHAPTER m. 
 
 Op Pleading in geneeal. 
 Defined, 213 
 
 I. The facts necessary to be stated, 214 to 232 
 
 1, facts of which the Court will ez officio take notice should not be 
 stated, 214 
 
 what the Court will ex officio notice, 215 
 not of foreign laws, 216 
 
 2, where the law presumes a fact, or it is necessarily implied, it need not 
 be stated, 221 
 
 8, a party need not state a fact which is more properly to be stated by 
 the other side, 222 
 
 4, it is not necessary to state in pleading mere matter of evidence, 
 
 5, statements of legal fictions, &c. ib. 
 
 6, of duplicity, 226 
 
 7, objections to unnecessary statement, 228 
 
 8, superfluity and repugnancy, 229 
 
 II. The modes of stating the facts, 232 to 233 
 
 of the degree of certainty required, 233 to 237 
 IIJ. The rules of construing pleadings, 237 to 239 
 IV. The division of pleadings, 239 
 
 CHAPTER IV. 
 
 Op the Declaeation, 240 to 421 
 • 
 I. Definition and division of subject, 240 
 n. The recent alterations affecting declarations in general, ib. 
 Venue in margin but not in body, 242 
 name or abuttals in trespass quare clausvmfregit, ib. 
 conciseness in some forms prescribed and intended to be extended to all 
 
 eases, 243 
 second counts on same cause of action prohibited, but several breaches per- 
 mitted, ib. ' 
 in. The general requisites or qualities, 244 to 261 
 1, should correspond with process, 244 to 255 
 name of the parties, 244 
 number of the parties, 248 
 number of plaintiffs, ib. 
 the character in which plaintiff sues, 250 
 the rule and decisions on this point since the uniformity of process act, 
 
 2 W. 4, c. 39,-251 
 the foriji or canse of action in writ, 253 
 
CONTENTS. XXI 
 
 CHAP. IV. — Oi' THE Declaeatiow — (continued.) 
 
 the form and cause of action in declarations must correspond with the 
 affidavit to hold to bail, 254 
 
 2, the declaration must state all the facts essential to the support of the 
 action, 255 
 
 3, of the certainty required in declaration, 256 to 261 
 
 parties, 256 
 
 the present practice in declaring as to time, 269 , 
 place, 260 
 IV. the several parts and particular requisites of declarations, 262 to 421 
 form of declaration by way of example, 262 
 division and arrangement of the subject, ib. 
 
 1st, title of the Court in the former practice, 263 
 2dly, title of declaration as to time, 263 to 366 
 former practice as to term, 263 
 
 consequences of mistake in the title before 2 W. 4, c. 39, and re- 
 cent rules, 264 
 the present practice as to the title of time, 266 
 repetition of time still essential, ib. 
 3dly, the venue, 266 to 280 
 when the venue is local, 268 
 when the venue is transitory, 269 
 the venue in actions on leases, 270 
 the venue when local by statute, 171 
 mode of stating the venue in margin, 274 
 as to statement and repetition of venue in body of declaration, 
 consequences of mistake of venue, and when aided, 277 
 the recent alterations as to venue, and description thereof in declara- 
 tion, first, by Eeg. Gen. H. T. 4 W. 4, reg. 8, 279 
 no venue to be stated in the body of declaration or subsequent plead- 
 ing, ib. 
 Reg. Gen. W. T. 4 W. 4, reg. 5, in trespass, ib. 
 name of abuttals of locus in quo essential, ib. 
 4thly, the commencement, 280 to 289 
 as to names, 281 
 mode in which defendant was brought into Court, ib. 
 recital of the supposed writ, 283 
 by and against particular persons, 284 
 
 the present forms of commencements of declarations in personal ac- 
 tions commenced in one of the superior Courts, 285 
 conclusion, 486 # 
 
 pledges to be omitted, ib. 
 consequences of deviations from such rules, viz. that they are only 
 
 irregularities, and not grounds of demurrer, 286 
 the regulations affecting the body or substance of declarations in gen- 
 eral, ib. 
 the rules HU. T. 4, Will. 2, reg. 4, 5, 6, prohibiting several counts, 
 
 &c. 28 
 other incidental improvements, as admissions on face of declarations 
 of pait-payments, or part-performance, ib. 
 5thly, the body or substance of cause of action, 289 to 352 
 I. In assumpsit, 289 to 360 
 
 when or not a special count is requisite or proper, 289 
 ], inducement, 290 to 293 
 
 of the inducement in assumpsit, 290 
 inducement, if not traversed, need not be 
 proved, 239 
 
Xifi TABLE OF 
 
 CHAP. IV. — Op the DBCtARATiON — (continwed.) 
 
 S, the consideration, 293 to 301 
 
 statement of executed considerations, 295 
 of executory considerations, 206. 
 of concurrent considerations, 297 
 of continued considerations, ib. 
 variances in stating the considerations, 298 
 how to take advantage of insufficient states 
 ment of consideration by demurrer, &c 
 300 
 how to take advantage of the illegality or un 
 truth in consideration, 301 
 3^ statement of the contract, 301 to 320 
 
 1, how the promise should be stated, so that 
 the declaration, may be gopd on the face of 
 it, 301 
 
 2, of variances between the statement and the 
 evidence, 305 
 
 contract to be stated according to its real 
 efiect and intent of parties, though va- 
 rying from words, ib. 
 
 misdescription of the parties to the con- 
 tract, 307 [308 
 
 blending distinct contracts in one count, 
 
 misstatement of a promise in the altera- 
 tive, &c. ib. 
 
 instances of a misstatement of part of 
 contract, 310 
 
 immaterial omissions, collateral provisions, 
 &c. 314 
 
 oi scilicets, 317 
 
 unless the statement of the contract be 
 denied by the plea, it will not be ma- 
 terial, and in effect admitted, 318 
 
 amendment of variance in stating written 
 instruments at the trial, 319 
 
 4, the necessary averments in assumpsit, 320 to 331 
 
 1, of averments of plaintiff's performance of 
 his part, 320 
 
 consequences of insufficient averments, 
 averment of notice, ib. 
 request, 329 
 
 5, the breach of contract, 332 to 338 
 
 several breaches, 336 
 
 6, the damages, 338 to 340 
 
 the common counts in assumpsit, 330 
 the great variety of common counts, 340 
 when applicable in general, ib. 
 indebitatus assumpsit count, 34 1 
 quantum meruit count, ib. 
 quantum valebant count, ib. 
 common counts, 342 to 360 . 
 common breach, 342 
 common counts as to real property, 343 
 goods sold, 345 
 
 work and labor and materials, 348 
 money lent, 349 
 
CONTENTS. XXlU 
 
 CHAP. tV. — On thh Dbolaration— (cowiiMMerf.) 
 
 money paid, 350 
 money had and reoeivcd, 351 
 interest, 356 
 account stated, 358 
 when a count upon an account stated should 
 
 01 not be added, 359 
 common counts in actions by and against 
 persons suing or being sued in particular 
 rights or characters, ib. 
 the breach of the common counts, 360 
 n. In debt, 360 to 375 
 
 title of Court, ternj, Tenue, and commencement, 361 
 
 on simple contract, 361 to 363 
 
 on specialties, 363 to 370 
 
 inducement, 363 ' 
 
 tim« of making specialty, 364 
 
 profert of specialty, 365, 366 , 
 
 statement of consideration in general unnecesary, 366 
 
 consideration, 367 
 
 the specialty contract itself, ib. 
 
 averments, 368 to 370 
 
 as to setting forth condition of bond and assigning 
 
 breaches in the declaration, 369 
 on records, 870 
 
 variances, 371 4 
 
 on statutes, 371 to 374 
 contra forman statuti, 272 
 per quod actio accrevitj 373 
 statement of the breach in general in debt, 374 
 damages in general in debt, 374 
 in. In covenant, 375 
 
 the statement in actions ex delicto of the. cause 6i £u> 
 tidh, 376 
 
 1, statement of the matter or Ifhing injured, ib. 
 
 2, statement of the plaintiff's ri^ht or interest in 
 such matters, ,<Seo. 378 
 
 how to declare if right not appurtenant, 381 
 
 how to declare by a reversioner, ib. 
 
 how to declare for obstruction to ancient 
 
 lights, 381 
 or water courses, ib. 
 or common, or way, or seat in ^ pew, &c. 
 
 ib. 
 disturbance of franchises, ib. 
 the common law mode of declaring in gen- 
 eral is expressly sanctioned by 2 & 3 W. 
 
 4, e. 71, s. 5, 382 
 more general modes of stating rights in 
 
 pleas, ^c. und^2 & 3 W- 4, c. 71, s. 5, 
 
 ib. 
 luode of cleclariug where (defendant under 
 
 any particular obligation or duty, 383 
 variance in stating the plaintiff's right or 
 
 interest, 385 
 3, statement of the injury, and of variances in the description 
 thereof, 387 
 
XXTV TABLE OF 
 
 CHAP. IV. — Of THE Dbclaeation — {continued.) 
 
 4, statement of the tort itself, and of variances in so doing) 
 391 
 
 time in stating torts in general, 393 
 
 place where the injury was committed, 394 
 
 5, the statement of the damages in general in actions for torts, 
 
 395 
 ■when to be specially stated, 396 
 alia enormia, 397 
 The particular requisites of declarations for libels and verbal slander, 399 
 
 1, introduction and inducement, 400 
 
 libels and slander in particular, ib. 
 
 2, the colloquium of and concerning the plaintiff, &c. 403 
 
 3, the slander, written or verbal, and publication complained of, 404 
 
 the unlawful publication, 406 
 
 4, the innuendo, ib. 
 
 5, the injury or damage, 408 
 
 6, of several counts, 408 to 418 
 
 the practice antecedent to the pleading rules of Hil. T. 4 W. 4, 
 
 409 
 costs of several counts, 412 
 form of subsequent Counts, 41 
 
 pleading to several counts for some cause of action, 414 
 the rule Hil. T. 4 W. 4, reg. 4, 6, 7, prohibiting several counts and 
 decisions thereon, ib. 
 ' several counts and pleas not allowed, ib. 
 instances in declarations, ib. 
 several breaches, 415 
 instances of pleas and avowries, &c. ib. 
 the cases above mentioned as instances only, 4 1 6 
 departure from these rules, how taken advantage of, ib. 
 costs of counts and pleas, ib. 
 
 7, The conclusion ad damnum, &c. 418 to 420 
 
 forms of the conclusion, 419 
 
 8, the profert, 420 
 
 pledges now to be omitted, ib. 
 
 9, defects when aided, 421 
 
 CHAPTER V. 
 
 Of the Claim op Conusance, Appeaeancb and Defense, Otee and Im^ 
 
 PARLANCES, 422 to 430 
 
 I. Claim of Conusance, 422 to 427 
 
 1 , what Courts may clann it, 423 
 
 2, in what actions, 
 
 3, the tiine, &c. of claiming it, ib. 
 
 the fonc and mode of claim, &c. 425 
 
 4, the proceedings thereon, 426 
 
 II. Of appearance and defense, and the form of stating them, 427 to 429 
 
 the old forms and practice, 427 
 defense, 428 
 
 III. Oyer, 430 to 436 
 
 in what cases demandable, 430 
 when it should be demanded. 431 
 
CONTENTS. , XXV 
 
 CHAP. V. — Of the Claim of Conusance, &c. — (continued.) 
 
 refusing oyer, 432 
 
 how given, ib. 
 
 ■what advantage to be taken of oyer, and the maniier of taking advan- 
 tage, 433 
 
 form of the plea after oyer, 436 
 IV. Imparlances, 486 to 439 
 
 the ancient practice and forms of, 436 
 
 imparlance in certain personal actions now virtiially abolished, and 
 suggestions in lieu, 438 
 
 CHAPTER VI. 
 
 Of Pleas to the Jubissiciion and in Abatement, and' Pboceedinqs thebeon, 
 
 440. 
 Order of pleading, 440 
 
 I. Of pleas to the jurisdiction, 441 to 446 
 
 affidavit, 445 
 replication, &o. ib. 
 
 II. Of pleas in abatement, 446 
 
 parol demurrer, 447 
 
 1, relating to the person, 448 to 450 
 
 of the defendant, 449 
 privilege of a peer, ib. 
 
 2, relating to the count, &c. 450 
 
 3, relating to the writ, 450 to 455 
 
 to the form of the writ, 451 
 misnomer, ib. 
 other pl«as of this description, as noti-joinder, 452 
 to the action of the writ, 453 
 
 of the forms and general qualities and requiffltes of pleas in abate- 
 ment, 454 
 forms of plea in abatement, ib. 
 commencement, ib. 
 body, ib. 
 conclusion, ib. 
 1st, title of pleas in abatement as to date, 455 
 2dly, as to the title of the term, 455 
 
 present practice as to time of pleading in abatement, and title of 
 pleas, 450 
 3dly, name of parties in the margin, ib. 
 4thly, the commencement, ib. 
 5thly, of the body of the plea, general requisites, 457 
 
 of pleading in abatement to part, and in bar to the residue, 458 
 othly, the conclusion of pleas in abatement, as respects verification ana 
 
 prayer of judgment, 460 
 7thly, of the affidavit, of the truth, 462 
 requisites of affidavits, 463 
 m. Eeplications and other proceedings on a plea in abateUftetit, ib. 
 of demurrer to a plea in abatement, 465 
 judgment on pleas in abatement, 466 
 costs on pleas in abatement, ib. 
 IV. Of pleas of non-joinder in particular, 467 
 
 Vol. I. D 
 
XXVi TABLE OF 
 
 CHAPTER Vn. 
 
 Of Pleas in Bar, 469 to 471. 
 
 What facts can or not be pleaded in bar, 469 
 analytical table of pleas in bar, 471 
 
 observations on such analytical tables, 472 
 
 the former indiscriminate use of a general plea, as noti-as» 
 sumpsit, ib. 
 of pleas of partial denial 473 
 
 what matters of defense allowed to be pleaded specially, 
 ib. 
 .1. Of the several pleas in bar, and when or not to plead specially, 474 
 Divisions of the subject of pleas in bar, ib. 
 
 First, before the recent enactments and rules relating to pleading, 
 475 
 
 in assumpsit, 475 to 481 
 
 non assumpsit, when formerly requisite Or sufficient, 476 
 when to plead specially, 479 
 in debt, 481 to 486 
 
 1, on simple contracts, 481 
 
 2, on specialties, 482 to 485 
 
 3, on records, 485, 486 
 
 4, on statutes, 486 
 in covenant, 486 to 488 
 in account, 488 
 
 in detinue, ib. 
 
 by or against executors, &c. 489 
 against an heir or devisee, 490 
 in case, 490 to 498 
 
 plea in actions for slander in particular before the recent rules, 
 
 491 to 498 
 when and how to justify specially, 494 
 plea of recaption in case for escape, 497 
 when might have pleaded specially in case, 498 
 in trover, ib. 
 
 avowries, &c. in replevin, 499 
 in trespass, 500 to 507 
 
 the general rule, 500 
 to persons, 501,' 502 
 to personalty, ib. 
 to realty, 502 to 506 
 
 when the general issue authorized by statute, 506 
 in ejectment, 507 
 when advisable to plead specially, or only the general issue, 507 to 
 
 510 
 when advisable to plead only a justification, 508 
 when advisable not to plead specially, ib. 
 matter of estoppel, when must be specially pleaded at common law, 
 
 509 
 all defenses should be pleaded, ib. 
 
 when it will suffice to prove part of the ground of defense, 510 
 of suffering judgment by default as to part, ib. 
 of issuable pleas, 510 to 512 
 Secondly, since the recent rules, 
 
 statement of prescriptive rights in a plea, &o. under 2 & 3 W. 4, 
 c. 71, s. 5, ib. 
 
CONTENTS. XXVU 
 
 CHAP. Vn. Or Pleas in Ba.e — {continued.) 
 
 Reg. Gen. Hil. T. 4 W. 4, pleadings in particular actions, 512, 
 513 
 
 I. Assumpsit, 513 to 517 
 
 1, plea of non assumpsit to put in issue only express 
 contract, or the facts from which contract implied, 
 and not, fee. 513 
 
 in actions against carriers or bailee not of breach, 
 514 
 
 in indebitatus for goods sold or money received 
 non assumpsit to put in issue only sale and de- 
 livery, and receipt of money to use of plaintiff, 
 515 ' 
 
 2, non assumpsit inadmissible in action on bill or note, 
 but defendant must traverse in particular the draw- 
 ing, making, indorsing, accepting, presenting, or no- 
 tice of dishonor, ib. 
 
 3, matters in confession and avoidance, and in dis 
 charge, and defenses in law, to be pleaded particur 
 larly, as infancy, coverture, release, payment, per- 
 formance, illegality of consideration, &c. ib. 
 
 4, In declaration on policy the interest may be averred 
 to have been in several, and proof of either shall 
 suffice, ib. 
 
 II. In covenant and debt, 
 
 • 1, non est factum to be considered as merely denying 
 the execution of the deed, and all other defenses 
 must be specially pleaded, 518 
 
 2, nil debet abolished, ib. 
 
 3, plea of " never indebted " to be admissible to the 
 like extent as non assumpsit, but matters in avoid- 
 ance to be specially pleaded, ib. 
 
 4, In other actions of debt the plea to traverse a par- 
 ticular fact, and to state matter in avoidance, ib. 
 
 m. Detinue, ib. 
 
 non detinet only to put in issue the fact of detention 
 of the specified goods, and not plaintiff 's property 
 therein, or other ground of defense, ib. 
 rV. In case, 
 
 1, not guilty in case only to put in issue the alleged 
 wrongful act or omission, and not facts stated as iur 
 ducement, ib. 
 
 instances in elucidation of this rule, 519 
 
 2, all matters in confession and avoidance to be pleadr 
 ed specially, ib. 
 
 V. In trespass, 
 
 1, a declaration in trespass to land, &c. must state the 
 name or abuttals, &c. or the defendant may demur, 
 520 
 
 2, " not guilty " to be a denial of the defendant s tresr 
 passes, but not of plaintiff's possession or right of 
 possession, and which must be specially traversed, 
 ib. 
 
 8, " not guilty " to trespass de bonis asportatis, to be 
 considered only a denial of taking or merely iam-r 
 aging the goods, and not of plaintiff's property, ib, 
 
XXViU TABLE OF 
 
 CHAP. Vn. Of Pleas in Bae — (continued.') 
 
 4, plea of right of way witli carriages, cattle, and on 
 foot, if traversed, shall be considered distributive, 
 and the proof of either shall pro tanto entitle the 
 defendant to a verdict, 520 
 
 5, so in plea of right of common, if defendant do not 
 prove a right for all kinds of cattle he is to have a 
 verdict pro tanto, ib. 
 
 6, in all actions the same rule to prevaU as regards 
 right of way or common, ib. 
 
 plea of payment of money into Court, 521 
 II. Qualities of pleas in bar, 521 to 545 [breach, 521 
 
 1, must be conformable to the action and count, and to the alleged 
 
 2, must answer the whole charges, with the exception of matter in aggra- 
 vation, 523 
 
 3, must answer all it assumes to answer, and no more, ib. 
 
 4, a plea must deny, or confesss and avoid, and herein of giving color, and 
 of special pleas, amounting to the general issue, 525 
 
 of giving color, 526 to 532 
 
 of pleas amounting to the general issue, 527 
 
 of implied color, 528 
 
 of express color, 529 
 
 form of color, 531 
 
 5, must be single, 532 
 
 6, must be certain, *533 to 539 
 
 certainty as to time and place, 538 
 
 7, must be direct and positive, and not argomentative, 539 
 
 8, must be capable of trial, 540 
 
 9, must.be true, and must not be too large, 541 
 10, of sham pleas, 541 to 545 
 
 in. Rules of construction and allowance of a plea in bar, 545 to 548 
 
 1, construction against the plea, 545 
 
 2, bad in part, bad in whole, 546 
 
 3, surplusage and repugnancy, 547 
 
 IV. Form and parts, 548 to 559 
 
 1, title of the court, 549 
 
 2, title of date of time, ib. 
 
 3, the names of the parties in the mar^n, 550 
 
 4, the commencement, 550 to 555 
 
 forms of commencement, prescribed by Reg. Gen. Hil. T. 4 W. 4, 
 
 reg. 9. 554 
 actionem non to be unnecessary, ib. 
 no formal defense requisite, 555 
 by leave of Court, &c. not essential in case of several pleas, ib. 
 
 5, the body of the plea, ib. 
 
 contra formam statuti, when requisite in a plea, 556 
 
 6, the conclusion, 556 to 559 ' 
 
 conclusion, with a verification, 557 
 
 prayer of judgment, 558 
 
 how and when to object to conclusion oS plea, 559 
 
 when no prayer of judgment is necessary since Reg. Gen. Hil. T. 4 
 
 W. 4, reg. 9, 559 
 conclusion of traverses, ib. 
 no protestation to be made, ib. 
 consequences of defect in a plea, ib, 
 
 V. Of several pleas, 560 to 565 
 
CONTENTS. XXIX 
 
 CHAP. Vn. Or Pleas in Bar — [continued.) 
 
 1, form of pleading a subsequent plea, before Eeg. Gen. Hil. T. 4 W. 4, 
 reg. 5, 52 ' 
 
 rule to plead double, 563 
 
 2, of several pleas since Keg. Gren. Hil. T. 4 W. 4, reg. 5, — 563 
 
 instances of pleas and avowries, &c. 564 
 
 payment, ib. 
 
 accord and satisfaction, ib. 
 
 release, ib. 
 
 liability of third party, ib. 
 
 agreement to forbear, in consideration of liability of third party, 
 
 liberum tenementum, easement, right of way, right of common, com- 
 mon of turbary, and estovers, 565 
 right of common, ib. 
 right of way, ib. 
 
 distress for rent and damage feasant, ib. 
 distress for rent, ib. 
 
 the cases above mentioned as instances only, ib. 
 a second plea need not state that it is pleaded by leave, &c. ib. 
 VI. Of pleas by several defendants, 565 to 568 
 
 defects when aided, 508 
 vn. Pleas of set-off, and herein of mutual credits, 568 to 576 
 set-off, &c. in cases of bankruptcy, 572 
 mode of setting off, 573 to 576 
 semhle, set-off and mutual credit now to be pleaded, 574 
 the forms of plea and notices of set-off, ib. 
 
 of setting off judgments, and costs against each other on summary ap- 
 plication, 576 
 
 CHAPTER Vm. 
 
 Of Ebplioations. 
 
 Greneral observations, 577 to 580 
 
 steps to be taken before replying, 577 
 
 of plaintiff's discontinuing and nolle prosequi, ib. 
 
 what answers to the plea the plaintiff may reply, 578 
 
 as to replication merely in denial of the general allegation, viz. de injii- 
 ria, and when it is admissible, 579 
 sub-divisions of subjects relative to replications, 580 
 1. Of the several replications, 581 to 598 
 in assumpsit, 581 to 584 
 
 replications to same ground of defense, 583 
 
 replications to statute of limitations, ib. 
 in debt, 584 to 588 
 
 on specialties, ib. 
 
 replications in actions on bonds, 585 
 
 whether to state condition in the declaration or not until replication, 587 
 
 on recordsi, &e. 588 
 in covenant, 589 
 
 in actions against execut&rs, &o. ib. 
 in ease, 590 
 in replevin, 590 to 592 
 in trespass, 592 
 
 1, to pel sons, 593 
 
XXX TABLE OF 
 
 CHAP. VIII. — Or Kbplications — {continued. j 
 2, to personalty, 594 
 3, to realty, 595 
 II. Of the forms and parts of replications, 598 
 the title, &c. 598, 599 
 
 commencement and conclusion with a similiter, 599 
 to a plea concluding to the country, ib. 
 to a plea of nul tiel record, or stating a record, 600 
 to a special plea concluding with a verification,- ib. 
 forms and parts of 
 
 I. The commencement, 601 
 
 of the form precludi nan, ib. 
 
 II. The body, 601 to 641 
 
 no venue to be stated in, 602 
 
 1, estoppel, 603 
 
 directions in Eeg. Gen. Hil. T. 4 W. 4, reg. 9, as to es- 
 toppel, 604 
 
 2, denial of the plea, 604 to 622 
 
 1st, of the whole plea, 
 general denial as by de 'injuria when allowed, or 
 
 not proper or advisable, 606 
 as to de injuria, ib. tt 
 
 when de injuria is not proper, but a qualifiea re- 
 plication or denial is required, 608 
 form of general denial de injuria, &c. 610 
 2dly, denial of only part of the plea, 611 
 
 what fact or part in particular may be traversed, 
 ib. 
 of part of the plea, 612 to 622 
 traverse should be of affirmative allegations, and not put 
 
 in issue a negative allegation, 613 
 traverse must not be too large, ib. 
 negative pregnant, 614 
 
 what entire allegation is or not divisible, so as to 
 enable party to recover pro tanto on proof of part, 
 ib. 
 3dly, the modes of special denial, 616 
 
 1, with a protestation, ib. 
 
 Eeg Gen. Hil. T. 4, reg. 12, abolishing pro* 
 testations, 618 
 
 2, a direct and simple denial of one fact, ib. 
 
 3, a formal traverse with a verification, 619 
 
 no traverse to be after a traverse, 621 
 Reg. Gen. Hil. T. 4 W. 4, reg. 13, as to trav- 
 erses, ib. 
 
 4, a denial, and bating a breach, 622 
 
 3, confession and avoidance, 622 to 624 
 
 4, new assignments, 625 to 641 
 
 when they arise, 625 
 
 when necessary in general, 626 
 
 in case of trespass to the person, ib. 
 
 to personal property, 627 
 to real property, 628 
 after plea of liberum tenemetum, ib. 
 when necessary to reply to part, and also to new a»- 
 sIot, 630 
 
CONTENTS. XXXI 
 
 CHAP. VIII. — Of Rbplications — (continued.) 
 
 when a new assignment is unnecessary and improp- 
 er, 632 
 replications in nature of new assignments, 636 
 in other actions besides trespass, ib. 
 form of new assignments, 688 
 pleas to new assignments, 639 
 suffering judgment by default to new assignment, 
 
 effect as to costs, &c. ib. 
 replication to plea to a new assignment, 641 
 in. The conclusion, 641 to 648 
 
 must be with a verification when new matter is stated, 642 
 estoppfel, ib. 
 
 signature of counsel, 643 
 III. The qualities of a replication, 643 
 
 I. Must answer the plea, 643, 644 
 
 II. Must not depart from declaration, &c. 644 to 648 
 
 III. Must contain matter of estoppel, or traverse, or confess and avoid, 
 648 
 
 IV. The certainty, &o. requisite, ib. 
 
 V. Must be single, 649 
 
 • 
 
 CHAPTER IX. 
 
 Op Bejoider and thb Subsequent Pleadings ok Issues, Bepleaders, Judg- 
 ments NGN OBSTANTE VEREDICTO, AND PlEAS PUIS DARREIN CONTINUANCE, OR 
 
 NOW Pending Action, and of Demurrers and Joinders in Demurrer, 651 
 
 Of rejoinders, 651 
 
 form and Requisites of, ib. 
 of sur-rejoinders, &c. 652 
 of issues, 652 to 655 
 
 of the modem regulations respecting issues, 654 
 of repleaders, 655 
 
 distinction between a repleader and judgment non obstante veredicto, 
 656 
 of pleas puis darrein continuance, 657 
 
 time of pleading them before the recent rule, 659 
 since the Beg. Gen. Hil. T. 4 ^. 4, reg. 2, ib. 
 how pleaded, and proceedings thereon, 660 
 of demurrers, when proper, 661 
 
 to what objections the opponent can not demur, 662 
 when general or special, 663, 664 
 
 where only to a part of the pleading, 664, 665 
 
 as to setting out a deed on oyer, and demurring, 665, 666 
 
 forms of demurrer, 666 to 668 
 
 form of demurrer as prescribed by Reg. Gen. Hil. T. 4 W. 4, 
 
 667 
 form of joinder in demurrer, ib. 
 
 Reg. Gen. Hil. T. 4 W. 4, reg. 2, requires one well-founded ob- 
 jection to be stated in margin, 668 
 when the Court will give judgment against the first defective plead- 
 ing, .668, 669 
 
 joinder in demurrer, 669, 670 
 costs in demurrer under 3 & 4 W. 4, o. 42, s. 34, — 670 
 
XXXn TABLE OP CONTENTS. 
 
 CHAPTER X. 
 Defects in Pleading, when and how aided. 
 
 Defects, when aided, 671 to 684 
 
 1, by pleading over, 671 to 673 
 
 2, by intendment after verdict, 673 to 682 
 
 instances, 675 to 682 
 
 when a count in part defective is aided by verdict, 632 
 by the statutes of jeofails, 682 to 684 
 
 APPENDIX. 
 
 Statutes and Rules affecting Pleadings. 
 
 Statutes, 
 
 4 Anne, o. 16, 701 
 9 Geo. 4, c. 14, 702 
 9 Geo. 4, c. 15, 704 
 2 Will. 4, c. 39, ib. 
 
 2 & 3 Wm. 4, c. 71, 712 
 
 3 & 4 Will. 4, c. 42, 7l4' 
 
 Regulee Gemrdles, 
 
 Trin. T. 1 Will. 4, 1831, 723 
 Trin. T. 1 Will. 4, 1831, 727 
 Mich. T.. 3 Will. 4,1832,729 
 Hil. T. 3 Will. 5, 1834, 733 
 HU. T. 3 Will. 4, ib. 
 HU. T. 4 Will. 4, ib. 
 m. T. 4 Will. 4, 738 
 
PRACTICAL TREATISE 
 
 ON 
 
 PLEADING. 
 
 CHAPTER I. 
 
 Op the Pasties to Actions. (1) 
 
 There are no rules connected with the science and practice of pleading 
 so important as those which relate to the persons who should be the 
 parties to the action ; for if there be any mistake in this respect, the plain- 
 tiff is, in general, compelled to abandon his suit, and to proceed de novo, 
 after having incurred great expense ; whilst, with respect to most other ■ 
 objections, they do not thus affect the proceeding ab initio, and occasion 
 coihparatively but small .expense. An attorney, special pleader, or bar- 
 rister, before he can safely advise his client what is his remedy, must, 
 before he can venture to issue a writ, be certain who ought to be the 
 plaintiff or plaintiffs, and also the defendant or defendants, and unques- 
 tionably an extensive knowledge of the law regarding the parties to an ac- 
 tion is of paramoimt importance. The general rule is that the action 
 should be brought in the name 6f the party whose legal right has been 
 affected {a), against the paaiy who committed or caused the injury (Vy, 
 or by or against his personal representative ; and therefore a correct 
 knowledge of legal rights, and of wrongs remediable at law, will, in gene- 
 ral, direct by and against whom an action should be brought. But as in tho 
 application of this rule, difficulties frequently occur, and as there are many 
 particular rules relating to the joinder of persons in actions, whether as 
 plaintiffs or defendants, and to the mode in which, and the time when, a mis- 
 take of parties should be objected to or be rectified, *it is advisable, before F "2 1 
 we consider the form of the action, and the pleadings therein, to take a con- 
 cise view of these rules, which we will examine under two general heads. 
 
 {a) In general, Coarts of law do not (Jired- Foreman v. Jervis, 6Bar. & Adol. 836; see 
 ly reoogniae mere equitable rights, but leave qualification, and when a Court of taw wiU 
 them to the protection of courts of equity. restrain the proceedings of a plaintiff con- 
 That rule, however, prevails more strictly as trary to justice and equity, Jones v. Bram- 
 regards real property than with respect to in- well, 3 Dowl. 488; 3 Chitty'a (5en. Prac. 626 
 juries to the person oi personal property. See to 629, 632 to 634. 
 
 fully, and the reasons, 1 Chitty's Gen. Prao. (6) 1 Maule & Sel. 722; 1 Marflh. 260; 8 
 
 6, 7; Bridlen v. Perrott, 2 Cromp. & M. 602; T. K. 832; 1 Bast, 499. 
 
 (1) Parties to actions will be presumed to be citizens of the State until the contrary appearii 
 Lester v. Wright, 2 Hill. 320. 
 
 Vol. I. 1 
 
OP THE PARTIES TO ACTIONS. 
 
 First, ■when the action is inform ex contractu (l),and secondly, when it is 
 in form ex delicto ; and under each of those heads, we will examine, first, 
 ■who are to be the plaintiffs, and secondly, who arc to be the defendants. 
 
 1. IN ACTIONS IN FORM EX CONTRACTU. 
 
 The rules ■which direct who are to he the parties to an action in form ex 
 contractu, whether as plaintiffs or defendants, are to be considered, j^rs^, 
 as between the original parties to the contract ; and secondly, where there 
 has been a change of parties, interest, or liability. Under the first head, 
 the rules may be considered with reference to the interest or liability of 
 the parties as whether legally, or only beneficially interested, or acting 
 merely as agents, or standing in the situation of joint tenants, tenants in 
 common, partners, &c. ; and in case of several contracting parties, who 
 must or may join or be joined. Under the second head, the subject will 
 be examined with relation to the instances of an assignment of interest or 
 a change of credit ; of survivorship of one of several ; death of all ; bank- 
 ruptcy ; insolvency ; and marriage of one of the contracting parties. We 
 will consider these x\Aq^, first, as they relate to the plaintiffs in an action. 
 
 I. PLAiH- In general, the action on a contract, whether express or implied, or 
 Isris^ibe- '^^^^^6'' ^J parol, or under seal, or of record, must be brought in the name 
 tween the of the party in whom the legal interest in such contract was vested (c) (2); 
 original and in general with his knowledge and concurrence, or, at least, a sufficient 
 and'^^th ii^lemnity must be tendered before his name can properly be used by 
 
 reference (^j j East, 497; 8 T. K. 332; 1 Saund. and Trusts, 222 ; 2 T. B. 696; 7 T. R. 667 ; 
 to the Ml- i53_ n. 1; 7 Mod. ng; 2 Saunders on Uses and see 2 Bing. 20. 
 
 16/ eS{ OT 
 
 the plain- " ~~~ ' 
 
 tiff in the ^^) '^^^ following note was inserted, by Mr. Chitty, at this place, in the first edition of his 
 contract. ■work: " A plaintiff frequently has an election to proceed, even for a breach of an express con- 
 tract, either in assumpsit or in case; and where the latter form of action is adopted, many of the 
 rules as to the parties to the action do not apply. See Govett v. Radnidge, 3 East, 70. Buddie 
 V. Willson, 6 T. K. 373. Samuel v. Judin, 6 East, 333, 335, and therefore I have considered 
 the following rules, in their relation to the form of the action, rather than to the subject matter 
 of it." In a note to the second American edition, Mr. Day observes, that, " The decision in 
 Govett V. Kadnidge, has been overruled by two subsequent oases in the Common Pleas, PUwel v. 
 Layton, 2 New, 365, and Max v. Roberts, et al., 2 New, 454, and by a very recent case in the 
 King's Bench, 'Weall v. King, 12 East, 452. 3 Conn. 198. In Connecticut, declarations in tort, 
 stating the injury to have been effected by means of a contract, have been sustained. Stoyell «. 
 Wcstcott, 2 Day, 418. Bulkeley v. Storer, 2 Day, 531." Woloott v. Canfield, 3 Conn. 194. 
 Vide 2 Esp. Dig. 129. 
 
 (2) Commercial Eank v. French, 21 Pick. 489. Warden v. Burnham, 8 Vermont, 390. Frankem 
 V. Trimble, 5Barr. 520; Cg,ruthers v. Wardlaw, Dudley,(Geo.) 189. De Cordova v. Atchison, 13 
 Texas, 372. Taylor w. SteamboatRobert Campbell, 20 Mis. (5'Bennett,) 254. The legal interest 
 in a contract is in the person , to whom the promise is made, and from whom the consideration 
 passes, and he is the person who must bring the action on such contract. Hall v. Huntoon, 17 Ver- 
 mont, 244; Lapham v. Green, 9 Vermont, 407; Weathers v. Ray, 4 Dana, 474. See Clarke v. 
 M'Farland, 5 Dana, 45. And where the suit is not brought in the name of the party ostensibly 
 contracting, the defendant will be entitled to make any defence, which he could have made, had 
 the suit been in the name of the person with whom the contract was made. Lapham v. Green, 
 9 Vermont, 407. A parent is entitled to the earnings of his child, being a minor, where there 
 is no agreement, either express or implied, that payment may be made to the child ; and an action 
 for the work, labor and services of such child, in such case must be brought in the name of the 
 parent. Shute v. Dorr, 5 'Wend. 204. But a special contract with a third person, authorizing 
 him to employ and pay the child, will be a defense to an action brought by the father. The inten- 
 tion of the parent may also be inferred from circumstances, and where the circumstances of any 
 particular case warrant the conclusion that it was understood that the child might receive his 
 earnings, payment to such child will be good. lb. 3 Cowen, 92, 2 Mass. 115, 8 Cowen, 84. A 
 father may by agreement with his minor son relinquish to him the right he has to his services ; and 
 the father will be precluded from suing for the services of such son, performed within the period 
 embraced by the agreement, although he has given notice to the party employing the son, not to 
 
IN FORM EX CONTRACTU. — PLAINTIFFS. 2 fl 
 
 the party beneficially interested (d) (1). The courts of law will not in ^' ^^' 
 general notice mere equitable rights, as contradistinguished from the strict j„ general 
 legal title and interest, so as to invest the equitable or merely beneficial party in 
 claimant with the ability to adopt legal proceedings in his own name ; al- whom le- 
 -though the equitable right embrace the most extensive, or even the exclu- fg^j. ja^Test- 
 sive interest in the benefit to be derived from the contract or subject mat- ed must be 
 " ter of litigation. This rule could not bo disregarded without destroying *1^ v^&'in- 
 the fundamental distinction between Courts of lav) and Courts of equity, ' " - 
 with regard to *the remedy peculiar to each jurisdiction ; if the cestui que 
 trust were permitted to sue at law in his own name, tlie benefits and pro- 
 tection intended to result from the intervention of a trustee, clothed with 
 a legal title, might be lost, and the advantages arising from giving Courts p ,„ ^ 
 of equity exclusive control over matters of trust would *be defeated (e). L J 
 
 Besides, it would bo impossible, consistently with the common principles 
 of jurisprudence, to exclude the power of the trustee to sue in respect of 
 his legal right ; and it would be highly mischievous and unjust to permit 
 the defendant to be harrassed by two actions upon the same contract or 
 transaction. The right of action at law has therefore been wisely vested 
 solely in the party having the strict legal title and interest, in exclusion of 
 the mere equitable claim (2). 
 
 If a bond be given to A. conditional for the payment of money to him On Bonds, 
 for the use or b&nefit of B., or conditioned to pay the money to B., the ac- 
 tion must be brought in the name of A. (3), and B. cannot sue for or re- 
 
 (d) Spioer v. Todd, 2 Tyr. Eep. 172; 3 7 T. R. 50; and hia observations as to the ne - 
 Chitty's Gen. Prao. 127. cessity of preserving inviolate the distinotiou 
 
 (e) See the observations of Lord B^nyon , between Ze^a/ and ejmiteSie rights, in Bauer- 
 as to the legal title alone being recognized in man v. Eadenius, 7 T. K. 667. 
 
 an action of ejectment, in Goodtitle a. Jones, 
 
 pay his wages to him. Morse «..Welton, 6 Conn. 5i7. See U. S. v. .Wertz, 2 Watts, 406; Gale 
 V. Parrott. 1 N. Hamp. 28; Eubanks v. Peak, 2 Bailey, 497; Chase v. Smith, 5 Vermont, 556. 
 
 Where a minor son makes a contract for his services on his own account, and his father knows 
 of it, and makes no objection, there is an implied assent, that the son shall have his earnings; so 
 that unless there is a design to defraud the father's creditors, the earnings will belong to the son. 
 Whiting V. Earle, 3 Pick. 201. See Burlinghame v. Burlinghame, 7 Cowen, 92; Keese v. Sprague, 
 3 Greenl. 77; Manchester v. Smith, 12 Pick. 115. 
 
 A minor son authorized by his father to go out to service and receive his earnings to his own 
 use, may sustain an action for his wages against his employer, although such authority was not 
 made known to the employer at the time when the minor entered into his service.^ And if in 
 such case no express contract be made with the employer, the law will imply a promiseby him to 
 the minor, and not to the father. Corey v. Corey, 19 Pick. 29. Although the father is entitled 
 to the services of his children till the age of twenty-one, yet he may waive that right. Ha 
 may emancipate his child; or the child may, by the father's consent, be entitled to his own ser- 
 vices, lb. Emancipation of a child is never to be presumed, but must always be proved. Sum- 
 ner V. Sebeo, 3 Greenl. 223. * . 
 
 (1 ) The indorsee of a witnessed negotiable note caiinot sustain an action for his own use in the 
 name of the payee against his consent, in order to avoid the bar of the Statute of limitations. 
 Mosher v. Allen, 16 Mass. 451. But he may with his consent or if he makes no objection^ Hodges 
 V. Holland, 19 Pick. 43. „ ^„ „ . , 
 
 (2) See Montague v. Smith, 13 Mass. 404, 405; Howe ». Howe, 1 N. Hamp. 49; Smith «. 
 Emery, 7 Halst. 53; Wheelright v. Beers, 2 Hale, 391; Wolfe v. Washburn, 6 Cow. 261; Barn- 
 dollar V. Tate, 1 Serg. & K. 160; Treat v. Stanton, 14 Conn. 445. Millard v. Baldwin, 8 Gray, 
 484. 
 
 (3) An action on a bond must be brought in the name of the obligee, although the condition 
 of it is for the benefit or support of a third person/ Saunders v. Klley, 12 Pick. 554; Watson 
 v: Cambridge, 15 Mass. 286; Montague v. Smith, 13 Mass. 396, 404. See Bird v. Washburn, 10 
 Pick. 223. Millard v. Baldwin, 3 Gray, 484. ■, . . 
 
 On an indenture of apprehticeship made by selectmen as overseers of the poor, but designating 
 themselves as selectmen, an action may be brought by subsequent overseers of the poor. 
 Bowers v. Ware, 2 Pick. 451. Vide Sandford v. Sandford, 2 Day, 559. In the case 
 in 20 Johns. 74. the bond was given to the " people of Niagara cotpty," and the siut^a? 
 
3 OP THE PARTIES TO ACTIONS. 
 
 I. MAW- lease the demand (/). In such case, A, is evidently a trustee, and the ob- 
 MMs. Jigatory part of the instrument, and the acknowledgment of legal responsi- 
 bility, are to him (/). 
 
 On deeds Jt is an inflexible rule, that if a deed be inter partes, that is, on the face 
 
 mter par- ^^ jj. expressly describe and denote who are parties to it, (as " between 
 A. of the first part and B. of the second part,") C, if not expressly 
 named as a party, cannot sue thereon, although the contract purport to 
 have been made for his sole advantage; and contain an express covenant 
 with him to perform an act for his benefit (g-) (1) ; in such a case, C. is a 
 stranger to the deed, and violence would be done to the expressed inten- 
 tion of the parties, were he to be allowed to sustain an action in his own 
 name (§■) ; the form of the instrument, and the reciprocity of obligation 
 between the parties to it, created by the express terms of the deed, nega- 
 tive and destroy any presumption that the contract was with him ; and in 
 such case, the right of suit is constituted, and must be governed, by the 
 deed ; and this rule applies, although the covenant be with the third party, 
 C, (whose benefit is the declared object of thejdeed), and a person who 
 is a party to the deed jointly (g-). Even in such case, 0. cannot join with 
 the other covenantee (A). And where a deed of composition was made 
 between a debtor of the first part, his surety of the second part, and " the 
 several other persons whose hands and seals are set and subscribed hereto, 
 being creditors, &c. of the third part" and A. one of the members of a 
 firm to which the debtor owed money, set his own seal only to the deed ; it 
 
 [ *4 J was held that A. only, and not the *firm should sue on the covenant to pay 
 the composftion, although A. subscribed the deed as for himself and part- 
 ners : for the partners did not become parties and privies to the deed, as 
 their seals were not af&xed thereto (t). 
 
 If a deed-poll, not being a deed inter partes, contain a covenant vnth 
 A. to pay B. a sum of money, it may be doubtful whether B. could sue 
 in his own name ; the covenant being with A. though for the benefit of 
 another, and the contract being under seal, it would appear that in such 
 
 (/) 2 Inst. 673; 1 Lev. 235; 3 Id. 139, Piatt on Covenants, 7, 8. This rule does not 
 
 140; 3 B. and P. 149, n. (a) ; 7 East, 148; I interfere ■with" the liability of a party who ex- 
 
 M. & S. 575; 6 Vin. Abr. Covenant, 374; 1 eoutes the deed as a covenantor, although he is 
 
 East, 501 . not described as one of the parties to the deed 
 
 (g) PerTindal, C.J. in Bushell v. Bea- in the introductory part of it; see Carth. 76; 
 
 van, 1 Bing. N. C. 120; 2 Inst. 673; 2 Rol. Holt, R. 210, S. C. ; Piatt on Cov. 7, 8. 
 
 Abr. Faits, F. 1; 3 M. & S. 308, 322; 6 (A) 6 B. and C. 718. 
 
 Moore, 23; 2 B. and B. 333; S. C. 5 B. and {i) 6 M. and S. 75. 
 C. 355. See 2 Preston on Conveyancing, 184; 
 
 brought in a justice's court, in the name of the party aggrieved, who there recovered. The judg- 
 ment was reversed in the Supreme Court, on the ground that there was'no evidence of any breach 
 of the condition. The court also say that the bond is not in the form contemplated by the statute; 
 that it should have beep given to the people of the State of New York, and not to the people of 
 Niagara county. In the subsequent case of Lawton v, Erwin, 9 Wend. 233, the question was dis- 
 tinctly presented, whether a party interested in the condition of a constable's bond can maintain 
 debt upon it in his own name, where the bond is given to the people; Held, that the action should 
 be covenant on the condition, in the name of the party, or debt in the name of the people. 
 
 (1) Strohecker v. Grant, 16 Serg. and Rawle, 237. Vide Hornbeck v. Westbrook, 9 Johns. 73. 
 Hornbeck v. Sleght, 12 Johns. 199; Hinkley v. Fowler, 15 Maine, (3 Shepley,) 285; Kobinst). 
 Ayres, 10 Missouri, 538, 
 
 The general principle is, that no other person than the obligee in the bond can be the nom- 
 inal plaintiff. In the case of a security required to be given by a constable before entering 
 upon the duties of his ofBce in form of a penal bond to the people, deJt may be maintained on 
 such bond by any person to whom the constable has become liable. Covenant may also be 
 
 maintained on the condition of auoh bond in his own name. The People v. Holmes, 6 Wend. 
 
 W. . r . , .. . 
 
IN FOEM EX CONTRACTU. — PLAINTIFFS. 4 
 
 case A. should be the plaintiff; for the terms of the express covenant I-j-lain- 
 seem to invest him with legal interest (le) (1) ; and it is clear, that ™^' 
 upon a covenant with two persons to pay the sum of money to one of them, p°jj_ ®^ ^ 
 they take a joint legal interest, and must jointly sue upon the cove- 
 nant (/). 
 
 If, however, the covenant in a deed-poll be generally " to pay B.," or 
 be expressly with him, to pay the money to him, there appears to be no 
 difficulty in his maintaining an action in his own name, although he did not 
 execute the deed, and were in all other respects a stranger to it (m). 
 
 The rule upon this subject appears to be materially influenced or affect- On simple 
 ed by the nature of the instrument upon which the contract arises. If the '^°"*™°*^- 
 instrument be not under seal, it seems to be a general principle, that the 
 party for whose sole benefit it is evidently made, may sue thereon in his 
 own name, although the engagement be not directly to or with him (2). 
 Thus, if A. give goods to B. of the value of £80, on condition that he pay 
 £20 to 0., if B. do not pay the money, C. may have an action against 
 him, and declare that he was indebted to him in £20, for goods of .the 
 value of £80, given to him by A. on condition that he should pay £20 to 
 C. ; for when the goods were delivered to B. upon this condition the £20 
 became a debt to C. («). An express privity of contract between A. and 
 0. seems to be created by the stipulations of the parties, in a case of this 
 nature. A father was seised in fee of lands, and was about to cut timber 
 therefrom to raise a portion for his daughter ; the defendant, being his son 
 
 (fc) 1 East, 497, 601. See Piatt on Cove- I,utw. 895; Com. Dig. Covenant, A. (1) ; 
 
 nauts, 513. 2 Inst. 673. Seeposi, 11. 
 
 (I) 1 East, 496; 3 B. & C, 256. (n) Mich. Term, 1651, Starkey v. Mylne, 1 
 
 (m) See 2 Lev. 74; 3 Keb. 94, 115, S. C. ; Eol. Abr. Action sur Cas, 32, pi. 13. 
 
 (1) Chaplin v. Canada, 8 Conn. 286. 4 Wend. 419. A. & B. gave a bond to C, conditioned 
 to pay C.'s debts; the holder of a promissory note, made by C. before the date of the bond, 
 brought an action of assumpsit, on the money counts, against A. & B., to recover the amount of 
 the note, and it was held that the action could not be sustained. Johnson v. Foster, 12 Metcalf 
 167; Sanders v. Filley, 12 Pick. 554. 
 
 Where A. covenanted with the rector, wardens and vestry, to pay rent to the rector or war- 
 dens; ficW, that neither separately, nor could both the rector and wardens jointly, maintain a 
 suit for the rent; but the vestry should also be joined with the rector and wardens. The prin- 
 ciple is, that the action should be sued in the name of the parties with whom the covenant was 
 made. Montague v. Smith, 13 Mass. 405. 
 
 Where all the members of a corporation "entered into covenant for themselves and heirs, that 
 the corporation should do certain acts; Held, that all were holden in their individual capacities, 
 and parties to the covenant. Tileston v. Newell, 13 Mass. 406, 
 
 (2) United States v. Kennan, Peters C. C. 169; Strohecker v. Grant, 16 Serg. & K. 241; 
 Harpers. Eagan, 2 Blackf. 39; Farmers' Bank ». Brown, 1 Harrington, 330; Virginian v 
 Buffins, Walker, 312; Felton u. Dickinson, 10 Mass. 287; Arnold «. Lyman, 17 Mass. 400; 
 Arlington!). Hinds, 1 Chip. 431; Hinkley i;. Fowler, 15 Maine, (3 Shepley,) 285; Brown v. 
 O'Brien, 1 Richardson, 268; Warren Academy v. Starrett, 15 Maine, (3 Shepley,) 443. Barker 
 V. Buoklin,2 Denio, 45; Robbins v. Ayres, 10 Missouri, 538. See the principle stated, Potter v. 
 Tale College, 8 Conn. 60. Where an agreement is made with an agent for the sole and exclusive 
 benefit of his principal, the latter has the legal interest and the right of action: but if the agent 
 have a special property and personal interest in an agreement made with him, his is the legal in- 
 terest and right of Mtion. Sailly v. Cleaveland, 10 Wendell, 156. The party in interest in a 
 contract resting in parol, may sue upon it. Lapham v. Green, 9 Vermont, 407: Story, Agency, 
 sec. 418, et seq. ; Pitts v. Mower, 18 Maine, 361; Bdmond v. Caldwell, 15 ib. 340; Higdon v. 
 Thomas, 1 Harr. & Gill. 153; White v. Owen, 12 Vermont, 361; Felton v. Dickinson, 10 Mass. 
 287, Cabot v. Haskin, 3 Pick. 83. 
 
 In the case of the United States v. Parmele, 1 Paine, C. C. 252, it was held, that no action will 
 lie in the name of the principal on a written contract made by his agent in his own name, al- 
 though the defendant may have known the agent's character. See Clarke v. Wilson, 3 Wash. C. 
 C. 560; Newcomb». Clark, 1 Denio, 226. 
 
 This, however, ia not univeTsally true, as appears in the case of factors making written con- 
 
4 a OP THE PARTIES TO ACTIONS. 
 
 1. PLAIN- 
 
 TUTS. 
 
 and heir, verbally promised the father, in consideration that he "would for- 
 bear to fell the timber, to pay the daughter this portion ; The Court of 
 King's Bench held, that the daughter might sue the son for the recovery of 
 the money, although the consideration moved from the father to the son ; 
 the contract having been made for her benefit, the object being to secure a 
 r #g -1 portion for her (o) (1). This decision was *affirmed upon a writ of error 
 ■^ in the Exchequer Chamber. This appears to be a strong authority to sup- 
 port the general rule, that the party to be benefitted by a contract, not un- 
 der seal, may sue thereon, although the promise be not made to him. 
 The Court attached some weight to the nearness of relationship between 
 the father and daughter ; but this does not appear to be a circumstance 
 which can render the case of less utility and importance, as afi'ording a gen- 
 eral rule upon this subject ; and Mr. Justice Buller is reported to have re- 
 marked (p), that if one person make a promise to another for the benefit of 
 a third, the latter may maintain an action upon it. And in a subsequent 
 case (5), Eyre, C. J. said "as to the case of a promise to A. for the 
 benefit of B. and an action brought by B., there the promise must bo laid 
 as having been made to B., and the promise actually made to A. may be 
 given in evidence to support the declaration." In Martin v. Hind(r), the 
 defendant, the rector of a parish, by a written certificate addressed to the 
 bishop, appointed the plaintifi' his curate, and signified that he promised to 
 pay the plaintiff a yearly stipend ; it was held, that the plaintiff might sue 
 
 (0) Button V. Poole, Mioh. 29 Car. 2; 1 337, S. C; See Bui. N. P, 133 a. 
 
 Ventr.' 318, 332, S. C. in 2 Lev. 210; Sir T. (p) Marohington d. Vernon, N. P. men- 
 
 Kaym. 302, and Sir T. Jones, 102, recognized tioned in 1 B. and P. 101, n. 
 
 by Lord Mansfield in Cowp. 443. and Mr. J. {q) 1 B. and P. 102. 
 
 Burrough in 5 Moore, 31, 32; 2 B. and B. (r) Dong. 142, S. C; Cowp. 437. 
 
 tracts in their own names for the purchase or sale of goods for their principals. So in oases of 
 agents, procuring policies of insurance in their own names, for the benefit of their principals, and 
 in other cases, which will be found commented on in Story, Agency, sec. 161. 1 Arnold, Ins. (Am 
 ed.) 25, notes, 170, 171, notes. Chitty, Contr. (9th Am. ed.) 228 to 230 [208] in notes; Hunt, 
 ington V. King, 7 Cushing, 371, Higins v. Senior, 8 Mees. & W. 834. 
 
 On a written order, made for a consideration, moving from the Eastern Railroad Company, to 
 deliver property to J. S., president of the Eastern Railroad Company, the company may^sue in 
 their own name. Eastern Railroad Co. v. Benedict, 5 Gray, 561 . In this case Dewey, J. said; — 
 " We may assume it to be quite clear and well supported by authority, that in the case of oral 
 contracts, the principal, may sue in his own name, upon a contract made with his agent. It is 
 equally well settled that the same rule applies to oases of sales by written bills, or other memo- 
 randa made by the agent, using his own name, and disclosing no principal. Edwards v. Geld- 
 ing, 20 Vermont, 30; Hubbard v. Borden, 6 Wheaton, 79; Salmon Falls Manuf. Co. v. Goddard, 
 14 Howard, (U. S.) 454, 455; Potter v. Yale College, 8 Conn. 60." 
 
 An action, on a promise to the mayor and aldermen of a city to pay for a license of a theatre 
 is rightly brought in the name of the city. Boston v. Schaffer, 9 Pick. 415. 
 
 (1) The case of Schermerhorn v. Van Aerheyden, 1 John. 139, was much like Button v. Pool, 
 upon the authority of which it was decided. The defendant in the court below, Schermerhorn, 
 applied to his father for an assignment of his property, which the father gave the son, the defend- 
 ant promising to purchase for his sister, the plaintiff's wife, a cherry desk. The court said, 
 where one person makes a promise to another for the benefit of a third, that third person may 
 maintain an action on such promise. This case has ever since been considered as correctly de- 
 cided, and the principle a sound one. It was accordingly decided, where a collector of the cus- 
 toms put certain property seized by him into the hands of a third person, and took a promise for 
 its delivery on demand to the marshal of the district, or to the deputy of such marshal, that the 
 marshal having no interest in the property, and the collector having an interest in it, being the 
 contracting party and furnishing the consideration, the suit on the contract must be brought 
 in the name of the collector. Sailly v. Cleaveland , 10 Wend. 156. In all the cases where a 
 third person has been permitted to sue on such a promise, such person had the legal interest. In 
 M'Menomy v. Ferrers 3 John. 71, it was held that an order to pay to Roosevelt was an assign- 
 ment of the amount due on the securities mentioned, and therefore the drawers of the order had, 
 no interest and could not prosecute. 
 
IN FORM EX CONTRACTU. — PLAmriFPS. 6 
 
 for the salary (r) This case proceeded, however, upon the ground that i- toain- 
 the contract was entirely with the curate, that there was no promise to the ^°'^'' 
 bishop, and that the certificate was a mere assurance or information to him 
 of a matter of fact, and the consideration was entirely between the plain- 
 tiff and defendant. The case of Carnegie v. Waugh (s), strongly shows, 
 that a written or verbal promise to A. for the benefit of B. will support an 
 action in the name of the latter (1) ; and the Chief Justice appeared to 
 have been of opinion in that case, that the rule that a third person cannot 
 take advantage of a deed inter partes, could not be extended to contracts 
 not under seal (2). And an action may be maintained by the several 
 partners of a firm upon a guarantee addressed and apparently given to one 
 of them, if there be evidence that it was given for the benefit of all (f). 
 There is, in the case of bills of exchange and promissory notes, an option Exception 
 of plaintiff that might be considered an exception to^ the general per- ynf^f ''^. 
 emptory rule, that the right of suing can only be in one person, or set of change, 
 persons, viz. that a party to a bill may, by arrangement between the par- 
 ties, be the plaintiff, alihough the bill at the time be in the rightful posses- 
 sion of another party to the bill (u) (3). 
 
 *The action against a carrier for .loss of goods sent by a vendor to a ven- [ *6 ] 
 dee, must in general be brought in the name of the latter, and not of the Against 
 consignor ; because the law implies that by the delivery to the carrier, the '"'"'^''^• 
 goods became the property of the consignee, and at his risk (subject, of 
 pourse, to the unpaid vendor's right of stoppage in transitu) (a;) As the 
 delivery to the carrier by the consignor presumptively vests the property 
 in the goods in the consignee, it is an inference of law, that the contract 
 for the safe carriage is between the carrier and consignee, and consequent- 
 ly the latter has the legal right of action (4) ; and this rule obtains, al- 
 though the consignor paid the carrier for the conveyance of the goods, and 
 the consignee gave no express . directions that the goods should be sent by 
 the particular carrier, selected by the vendee (2/). In these cases it is, how- 
 ever, only an assumption of law that the goods vested in the vendee and 
 were at his risk upon the delivery to the carrier ; and if by virtue of an 
 agreement between the vendor and vendee, the goods did not become the 
 property of the latter, and he was not at any risk with regard to the goods 
 until they actually reached him, the consignor should be the plaintiff. But 
 in general the property vests in the consignee by the mere delivery to the 
 carrier, and the consignee ought to sue, although he ordered the goods to . 
 be sent to him, " on an insurance being effected, and on the terms of three 
 months' credit from the time of arrival," for in such case the actual arrival 
 
 (r) Ante, n. r. pay the plaintiff. " And ■without jnuch de- 
 
 (s) 2 D. & E, 277. See 4 B. & C. 664, 3 tate, the Court held the plaintiff was a stran- 
 
 B. &A. 280, 281. The decision in Crow, u. ger to the consideration, and gave judgment 
 
 Rogers, 1 Stra. 592, is perhaps hardly to bo for the defendant." 
 
 reconciled with this doctrine. The plaintiff (I) 4 B. & C. 664. 
 
 declared, that Hardy, being indebted to the (u) Stone u. Butt, 2 Crom. and M. 416; 2 
 
 plaintiff in 101, it was agreed between Hardy Dowl. 835, S. C; Chitty on Bills, 8th ed. 566; 
 
 and the defendant, that the defendant should and exceptions, id. ibid. 
 
 pay the money to the plaintiff, and that Hardy (x) 8 T. R. 330; 2 Camp. 36; 3 Id. 255; 2 
 
 should make the defendant a title to a house, Saund. 47 h. 
 
 — that Hardy was ready to do so, and, in eon- {y) 3 B. and P. 584. 
 
 sideration thereof, the defendant promised to 
 
 ■ (1) Blymiro v. Boistle, 6 Watts, 182. 
 
 (2) But see Owings v. Owings, 1 Har. and Gill. 484. 
 
 (3) Pearoe v. Austin, 4 Whart. 489, and the cases cited in the opinion of the Court. 
 
 (4) See Potter v. Lansing, 1 John. 215j Abbott on Shipping, (6th Am. ed.) 403, note. 
 
6 OP THE PARTIES TO ACTIONS, 
 
 1. PLAM- of the goods is not a condition precedent to the vendee's liability to pay 
 ""^" for them, and the vendor having complied with the stipulation as to in- 
 surance, had provided the vendee with a remedy over (z^. 
 
 If goods by a bill of lading are consigned " to A." he is prima facie 
 the owner, and must bring the action against the master of the ship if 
 they be lost ; but if the bill be special to deliver to A. for the use of B:, 
 the latter should bring the action (a) (1). And where by a bill of lading 
 the captain was to deliver the goois, for the consignor andin his name, to 
 the consignee, and the latter at the time of the shipment, had no property 
 in the goods, it was decided that the consignor should be the plaintiff in 
 an action for an injury to the goods, although the consignee had, at his 
 own expense, previously insured the goods (6) (2). And it seems that an 
 agent in this country, who ships goods to the foreign principal and pays 
 the freight, may maintain an action in his own name on the bill of lading, 
 if it express that the goods were shipped by the agent, and that the freight 
 was paid here ; for in such case a privity of contract is established be- 
 tween the parties by means of a bill of lading (c). 
 When an In general a mere servant or agent, with whom a contract is express- 
 Agent ed *to be made on behalf of another, and who has no direct beneficial in- 
 P%™^ terest in the transaction, cannot support an action thereon (d) (3), As 
 I- J where lands were let by auction and there was an agreement between the 
 
 intended lessee and the auctioneer, stating the terms, and subscribed by the 
 intended lessor ; it was held, that the auctioneer could not sue the intend- 
 
 (z) 4 B. and C. 219. (c) 8 Campb. 820. 
 
 (a) 1 Ld. Raym. 271 ; 3 B. and A. 283. {d) Evans v. ETans, 1 Har. and Wo. 239. 
 
 (4) 8 B. and Aid. 277. 
 
 (1) Vide Potter v. Lansing, 1 Johns. 215. M'lntyre ii. Browne, 1 Johns. 221. Ludlow v. 
 Bowne, 1 Johns. 1. Sanderson v. Lamberton, 6 Binn. Ig9. A. of Liverpool shipped goods which 
 by the bill of lading were to be delivered to B. or his assigns in Philadelphia. The goods be- 
 longed to A. and the freight was payable in Liverpool. Held, that the bill of lading vested the 
 property in the consignee, who might maintain an action in his own name against the ship owner 
 for the negligent carriage of the goods. Griffith v. Ingledew, 6 Serg. and Bawle, 429. Glbsoit, 
 C. J. dissenting. Everett v. Saltus, 15 Wendell, 474. 
 
 A cargo was consigned to merchants, in New York, and the master put into Norfolk in dis- 
 tress; and was obliged to sell part of the cargo to pay expenses, and transferred the residue 
 of the cargo to another vessel, obtaining a biU of lading for the delivery of the cargo to him- 
 self; and on the arrival of the latter vessel in New York, ordered the same to be delivered to 
 persons other than the original consignees. In trover sued by the owner against the persons 
 • thus receiving the cargo, held, that they were liable to pay the value of the goods. Everett v. 
 Coffin, et al., 6 Wend. 603. But although a bill of lading is an instrument, having by the cus- 
 tom of merchants, a virtue and efficacy peculiar to itself, and no other instrument can be indorsed 
 with the like effect, Akerman v. Humphrey, 1 C. and P. 53; Jenkins v. Usborne, 8 Scott, N. B. 
 516, yet the indorsement only transfers the right of property, and not the contract itself, so as to. 
 enable the indorsee to sue upon it. Thompson v. Dominy, 14 Mees. and Welsh, 403; Sanders v. 
 Vanzeller, 2 Q. B. 260. 
 
 (2) Although the freight is payable by the consignee, if the goods are at the risk of the 
 consignor during their transportation, the property remains in the consignor until delivery. 
 M'lntyre v. Bowne, 1 John. 229; Ludlow v. Bowne, IJohn. 1 ; De Wolf u. New York Ins. 
 Co. 20 John. 214; The Venus, 8 Cranch, 253, 275; The Merrimack, 8, 817, 827, 328; The 
 Frances, 9 Cranch, 183; The Mary and Susan, 1 Wheat. 25; Illaley v. Stubbs, 9 Mass. 65. 
 
 Where the shipper of goods fills up the bill of lading with the name of a particular consignee 
 or bearer, the mere delivery of the bill of lading by the shipper, for value, passes the property, 
 against any person except a previous assignee of the bill of lading. Allen e. Williams, 12 Pick. 
 297; Low v. Be Wolf, 8 Pick. 101. 
 
 Inserting the name of a consignee in a bill of lading gives the consignee no property in the 
 goods, until a delivery of the bill made by some person duly authorized. AUen v. Williams, 12 
 Pick. 297. See Buffington v. Curtis, 15 Mass. 528. Abbot Shipping (6th Am. ed.) 688, note (1), 
 and cases cited. 
 
 (3) Inhabitants of Garland v. Reynolds, 20 -Maine, 45. Vide Medway Cotton Manufactoiy 
 
IN FORM EX CONTRACTU. — PLAINTIFFS. 1 
 
 ed lessee for- use and occupation or for breach of the agreement (a!). And ^ 
 where A. by a memorandum in writing, signed by himself only, agreed ia *''*^^"''' 
 writing to pay the rent of certain tolls which he had hired, to the trea- 
 surer of certain commissioners (e) , it was decided that no action for rent 
 could be supported in the name of the treasurer, the contract being in legal 
 contemplation with the commissioners, and to pay them (/). And where 
 several persons took a lease of premises, to be used as a Jewish synagogue, 
 and the seats therein were let by an officer annually appointed, whose duty 
 it was to lot them and receive the rents, and apply them partly in payment 
 of the rent secured by the lease, and partly for general purposes connected 
 with the establishment ; it was held, that the lessees were properly made 
 the plaintiffs in an action to recover the rent due frpni an occupier of one 
 of the seats (^). Upon the same principle, the captain of a ship cannot 
 maintain an action in his own name upon an implied promise to pay de- 
 murrage, although he may on an express contract with him to pay it (A). 
 And it has been determined that the mayor of a corporation, who, on the 
 gale of certain lands by auction, of which the corporation were the vendors, 
 signed a contract on behalf of himself and the corporation with the pur- 
 chaser, for the due performance of the conditions of sale, could not, in his 
 individual capacity, maintain an action against .such purchaser for the 
 breach of his contract (i). 
 
 But when an agent has any beneficial interest in the performance of the 
 contract, as for commissions, &o., or a special property or interest in the 
 subject-matter of the agreeinent, he may support an action in his own name 
 upon the contract ; as in the case of a factor, or a broker (/c), or a ware-' 
 houseman, or carrier (/) , (1) an auctioneer (»i) , a policy broker whose name 
 
 (d) Evans v. Evans, 1 Har. and Wo. 239. (i) 2 Taunt. 374, 387. See 5 Moore, 277. 
 
 (e) The instances in which treasurers and (fc) 1 T. R. 112; 2 Esp. Rep. 493; 1 H. 
 trustees nre by statute allowed to be made Bl. 82; 7 T. R. 339; 11 East, 180; 4 Camp, 
 plaintifis, and the decisions on enactments of 195; 1 M. and S. 581. 
 
 this niiture, will be noticed hereafter, post. 14. (0 See per Lord EUenborough, 2 M. and S. 
 
 ( / ) 3 B. and P. 147. See Sir J. Mans- 147. 
 field'sobservations, 2Taunt. 881. (m) 1 H. Bl. 81; 2 Marsh. 497,501. T 
 
 (g) 2 Stark. Rep. 356. Taunt. 237, S. C. See 5 B. and Aid. 833. 
 
 (A) 4 Taunt. 1, 52. See 3 Chit. Com. Law, 
 430. 
 
 T. Adam?, 10 Mass. 362. Bogert v. De Bussy, 6 Johns. 94. G^inn v. Qantine, 10 Johns, 387. 
 Jones V. Hart, 1 Hen. aiid Mun. 470. Gilmore v. Pppe, 5 Mass. 491. Bainbridge v. Dowuie, 6 
 Mass. 253. Kinsey v. HolUngshead, 1 Penn. 380. So, the trustees or committee, for conducting 
 the affairs of an unincorpprated company, cannot niaintain an action in their own name. Nived 
 ■y. Spiokerman, 12 Johns. 401. tt is different in the case of a note or ch?ck payable to, bairer; in 
 the lattrar case the opposite party cannot raise the objection of the plaintiff's want of interest. 
 Maurin v. Lamb, 7 Cpjr. 174. A mere agent, holdin^g such note or clieck, may sue on it in his 
 own name. 
 
 If one effects an insarE|,nce for whom it may concern; and in his deolariiitira he avers tliat the 
 policy was made for himself and another, yet, he is entitled to maintain the action ^^ his own 
 name. W?,rd v. Wood, 13 Mass. 539. It is otherwise, however, where his owp interest was fully 
 insured in a prior policy, in the latt?r case, if he sue, he must state the interest of the others 
 concerned, and bring the action ejcpressly as agent. Gardiner v. Bedford Ins. Co., 17 Mass. 6 15. 
 
 (1) Remedies must in general be produced in the name of the party jn interest,^ and not in the 
 name of the ageiit, who made the contract, or whose duty it is to make the collection ormpaeys 
 accruing under such contract. It is otherwise, however, as to bailees ; in who^e names, in maoy 
 cases, actions may be maintained. Breckbee v. Brown, 21 Wendell, llO. See Butts v. poUins, 
 1? Wendell, 139. 
 
 Where the person to whom the promise is made, furnishes the consideration and has the legal 
 injterest, the aption must be brought in his name, Sailly t. Cle^vland, 10 Wendell, l£6. 
 
 Vol. I, 2 
 
*S OF THE PARTIES TO ACTIONS. 
 
 >=• is on the policy (w), (1) or the captain of. a ship for freight (o). So where 
 PLAnraiirs. ^ contract is in terms made with an agent *personally, he may sue there- 
 on (2) ; and if a servant personally carry on a business for his principal, 
 and appear to be the proprietor, and sell goods in the trade as such appa- 
 rent owner, he may, it seems, sustain an action in his own name for the 
 price (p). Where the supposed principal repudiates the contract, the 
 agent may sue after notice of the facts to the defendant, as to recover back 
 a deposit paid on the sale of an estate (g"). 
 
 Where a person assumes, on the face of the contract, the character not 
 of a principal, but of an agent to another named person, he cannot retract 
 that assumed capacity, and sue as a principal, without previously undeceiv- 
 ing the defendant, and giving him notice of the real nature and extent of 
 his, the plaintiff's claim and interest (r). And it should be observed that 
 in these cases the right of the agent to sue on a contract made by him for 
 his principal, whether it be expressed that the agent contracts personally 
 or on the behalf of another, is subservient to the right of the principal to 
 interfere, and to bring the action in his own name upon the unperformed 
 agreement, in exclusion of the agent's right, and although tjie agent has 
 not expressly disclaimed (s) (3). There is an exception in the case of a 
 contract under seal entered into with the agent personally in a matter 
 ■within the scope of his authority ; in this instance the implied right of ac- 
 tion of the principal merges in the higher security taken, by his authority, 
 by the agent, and the remedy is in the name of the latter only (0 (4). 
 
 If a principal allow his agent to appear to be the principal, and to con- 
 
 (n) Park, on Ins. 403; I T. E. 114; 2 M. (p) 2 C. and P. 49. 8 Camp. 820, 3 Stark. 
 
 & S. 485, 486; 4 P. & C. 666, but not other- R. 147; 4 B. and C. 656; 4 Bing. 2. 
 ■wise; 1 M. and S. 497. 15 East, 4. In Co- (q) 3 Stark. Rep. 145. 
 
 sack V Wells, A. D. 1813, the pla,intiff effected (r) 5 M. and Sel. 383. 
 
 the policy thus " I. C. agent," and though (s) Stra. 1182; 1 Campb. 337; 1 JI. and S. 
 
 he was joiutly interested with another person, 579, 580; 5 M. and S. '385, 386, 390; see 7 
 
 he recovered in a separate action in his own Taunt. 237. 
 
 name, the declaration ayerring that he was (t) 1 M. and S. 575; 5 B, and C. 355; 4 
 
 jointly interested with another person. Bingh. 2. 
 
 (o) 6 Taunt. 65. 4 Taunt. 189. 
 
 (1) De Vignier v. Swanson, 1 Bos. and Pul. 346, n. b. 
 
 Two persons by name insured; and in the policy was added or whom it may concern, with a 
 clause also in the policy that the loss should be paid to the two persons named; held, that they 
 might recover the whole sum insured, although it appeared they were in fact owners of but one 
 half; the other half belonging to the person not joined as plaintiff in the action. Jefferson Ins. 
 Co. V. Cothra], 7 Wend. 72. See 1 Arnould Ins. (Am. ed.) 25 and note (1). 
 
 (2) Potter V. Yale College, 8 Conn. 60. An action on a promissory note given tD the agent of 
 e, company, lies in the name of the agent, and his styling himself agent, &c. in his writ and de- 
 claration, was held to be merely descripiio persona. Duffum v. Chadwiok, 8 Mass. 103. So, 
 where A. for his own account and risk, carries on trade in the name of B. an action for goods 
 Bold, in the course of such trade, is properly brought in the name of B. Alsop v. Gaines, 10 
 Johns. 396. But where goods are purchased from a factor, scienter, with intent by the purchaser 
 to set off against the purchase, a demand which he may haye against the factor, the principal 
 may, in such case, as on a sale made immediately by himself, have a suit against the purchaser, 
 any time before payment to the fector. Brown v. Robinson, 2 Caines' Cas. 341. 
 
 Although a simple contract may be enforced in the name of the promisee when made for the 
 benefit of a third person, if the promisee has an interest in the subject matter; but if the con- 
 tract is under seal and inter partes, the action must be sued by a party to the instrument. Spen- 
 cer V. Field, 10 Wend. 87. The person having the legal interest and also furnishing the consider- 
 lOtion, js the proper person to sue on a promise made to him. Si^illy v. Cleaveland, 10 Wend. 156. 
 
 (3) See ante, 4, note. 
 
 (4) Where money has been deposited by an agent, on tl»e account of an unknown prin- 
 
XN FOKM EX CONTBAOTTJ.— PLAINTIBTS. 8« 
 
 tract in the latter. character, and the defendant has thereby been induced ^ 
 to give credit to the agent, the principal's right of action in his own name ^"^™'"' 
 is subject to the set-off which the defendant has against the agent, and 
 which would be available if the latter were the plaintiff (m) (1). 
 
 If a trustee or husband object to his name b^ing used in an action for Qualified 
 the benefit of the cestui que trust or wife, the latter may, after tendering a right to 
 suflicient indemnity, use his name, or may file a bill in equity for that pur- ^meofa 
 pose (x). trustee. 
 
 When the contract was made with sevei-al persons (2) whether it were under &". 
 
 seal, or in writing but not under seal, or by parol, if their legal interest were rgfere^' 
 
 joint, they must all, if living, join in an action, in form ex contractu, for the to the 
 
 breach of it, though the covenant or contract with them was in terms joint ""mier of 
 
 plaintifb; 
 
 (u) 7 T. K 359 ; 1 Camp. 85 ; 5 B. & C. (z) Doe d. Proaser v. King, 2 Dowl. 58 ; 
 
 854 ; i Camp. 60 ; 1 East, 335, Holt, N. P. 3 Chit. &en. Prac. 127, &o. 
 E. 124 ; 6 Geo. 4, o. 94, s. 6; 4 B. & C. 547. 
 
 cipal, an action to recover back the deposit lies in the name of the principal. The Duke of Nor- 
 folk V. Worthy, 1 Campb. §37. Vesoher v. Yates, 11 Johns. 23. Yates v. Foot, 12 Johns. 1. 
 In contracts made by agents without disclosing the principal, the suit to enforce them may be in 
 the name of the principal or of the agent. Lapham v. Greene, . 9 Vermont, 407. So, where a 
 factor sells his principal's goods, the principal may, on notice to the buyer, before payment, not 
 to pay the factor, sue the buyer in his own name. Kelly v. Munsoh, 7 Mass.'324. ttailton v. 
 Hodgson, 15 East, 67. . A factor selling goods in his own name, and being alone known to the 
 purchaser, may maintain an action for the price although he receives no del credere commission ; 
 but if there has been a communication between the principal and factor, by which the former 
 agrees to consider the purchaser as his debtor, and takes steps for recovering the debt directly 
 from him, the factor's right to sue is gone. Sadler t. Leigh and another, 4 Campb. 19&. An 
 action to recover back a wager in the event of a horse race (under the acts of the State of New 
 York to prevent horse racing and gaming) is properly brought by the person who made the bet, 
 although' he acted as the agent or depository of other persons. Haywood v. Sheldon, 13 Johns. 
 88. Et Vide Vesoher v. Yates, and Yates v. Foot, ubi sup. Bell v. Gilson, 1 Bos. & Pull. 351. 
 
 If an agent employ a broker to effect an insurance for his principal, the broker, who knew his 
 employer was acting as agent, cannot retain the money he receives from the insurer for a debt 
 due from such agent to himself. Foster y. Hoyt, 2 Johns. Cas. 327. 
 
 The sale by a fiictor of several lots of goods, belonging to several persons, to one purchaser ; 
 taking the promissory note of the latter to himself ; held, that this did not prejudice the rights 
 of the several principals, who were, n6twithstanding, entitled to sue severally the purchaser. 
 Corlies v. Cumming, 6 Cowen, 181. 
 
 (1) A mere receiptor of goods taken by the sheriff upon an execution, while such goods r^ain 
 constructively in the custody of the law, has not Such a general or special property in the goods 
 as will enable him to recover in trover or repleoin, in which- actions the property in the goods is 
 drawn in question. In trover or replevin, it is a good defence to the action, that the plaintiff 
 has neither the general or special property in the goods; but in an action of trespass, a bare 
 possession is sufficient to enable the plaintiff to recover against a Wrong-doer, who takes the 
 property out of his possession without authority. Cook v. Howard, 13 Johns. 276. Demick v. 
 Chapman, 11 ib. 132. Schermerhorn v. Van Valkenburgh, lb. 529. Alkin v. Buck, 2 Wend. 
 466. Butts T. Collins, 13 ib. 139. 
 
 Where the agent of a defendant in an execution became the receiptor to the sheriff of the 
 property of his principal, levied upon by virtue of such execution, and agreed with the sheriff 
 and the plaintiff in the execution, that he would cause such property, consisting of yarn and 
 other materials found in a factory, to be manufactured into flannels, and would furnish such ma- 
 terials as Should be necessary for that purpose, the avails to be applied on the execution after sat- 
 isfying his advances — and the agent accordingly made the necessary advances, caused the ma- 
 terials to be manufactured into flannels, and put them into the hands of a manufacturer to be 
 dressed, it was held, that the agent was not entitled to set q^ the value of such flannels, in an 
 action bl-ought by the manufacturer, against the agent for work done, although the manu&o- 
 turer, after the flannels were dressed, had refused to surrender them to him. Butts v. Collins, 
 13 Wend. 139. It is only where the agent has a lien upon the property sold by him, or has a 
 commission del credere, that he has a right to sue in his own name on a contract made for his 
 principal, or to set off a demand due to his principal against his own private debt. Ib/ 
 
 (2) Two incorporated companies may join in an action of assumpsit, to recover pioney depos- 
 ited in a bank in their joint names. New York and Sharon Canal Co. v. Bulton Bank, 7 Wen- 
 dell, 412 
 
•9 OF THE PABTIIS TO ACTIONS. 
 
 I- and several Qy) (1). And if it appear on the record *that there was 
 
 WAimirFs another covenantee who ought to have joined, the judgment will be arrest- 
 
 and when ed (2). So if one of several bankers lend money to a third person all the 
 
 they _ members of the firm may join in action to recover the amount (a). And 
 
 or'kver"" ^here a broker was employed to sell a ship belonging to three part-oWners, 
 
 Joint in^ two of whom communicated with him on the subject, and to them he paid 
 
 terest their shares of the proceeds of the sale, but, after admitting the. amount 
 
 the third part-owner's share to be in his hands, refused to pay it to him 
 
 without the consent of the other two, and he alone brought an action for 
 
 his share, it was held, that he could not sue alone, but should have joined 
 
 {y) Eccleston t. Clipsham, 1 Saund. 153, at least after tendering an indemnity, 1 Chit, 
 
 tod note 1 ; 1 East, 497,' 501 ; 1 Taunt. 7. Bep. 390. See fully and how to proceed as 
 
 2 Campb. 190 ; 5 Price, 529 ; and see an ex- regards the indemnity, 3 Chit. Gen. Prao. • 
 
 plioit case, Hatsall v. Griffith, 4 Tyr. 487. 127 to 129. So a covenant with two and every 
 
 One of such parties may lawfully use the of them is joint, 8 Taunt. 87. 
 
 name of the other in the proceedings without (z) Lane v. Drinkwater, 3 Dowl. 223. 
 
 his consent, 1 Ld. Baym. 880 ; 9 East, 471 ; (a) Alexander t. Barker, 2 Tyr. Bep. 140. 
 
 (1) Sims V. Tyre, 8 Brevard, 249. Hays v. Lasater, 8 Pike, 565. Archer v. Bogue, 3 Scam- 
 mon, 526. Lucas v. M'Alilly, 1 M'Mullan, 811. Conolly v. Cottle, Bruce, 286. Baker v. 
 Jewell, 6 Mass. 460. Halliday v. Doggett, 6 Pick. 859. Beach v. Hotchkiss, 2 Conn. 697. 
 Gordon v. Goodwin. 2 Nott and M'C. 70. Ehle v. Purdy, 6 Wendell, G29. Hilliker v. Loop, 
 5 Vermont, 116. Allen v. Saokett, 3 J.J. Marsh, 165. Ellis v. M'Lemoor, 1 Baily, 13. Moo- 
 dy V. Sewall, 14 Maine 295. Darling v. Simpson, 15 Maine, 175. Where a promissory 
 note was made payable to A. or B. it was held to be evidence of a contract with A. and B 
 jointly, and that neither could sustain an action on it separately. Osgood v. Pearsons, 4 
 Gray, 455. Willoughby v. Willoughby, 5 N. Hamp. 244. Waldrad v. Petrie, 4 Wendell. 575. 
 Cotitra, Ellis v. M'Lemoor, 1 Bailey, 13, where it was held, that in suoli case either may sue 
 separately. See also Spaulding v. Evans, 2 McLean, 139. Where an instrument is jointly exe- 
 cuted to several, one of the joint-payees, or obligees, or bis SiSsignce, may sue in the name of all, 
 without their consent. Wright v. M'Lemore, 10 Yerger, 235. Gray v. Wilson, 1 Meigs, 394. 
 Where several persons jointly procure insurance on a vessel owned by them jointly , they cannot 
 in case of a loss, while the ownership remains the Same, maintain separate actions to recover 
 their several shares of the loss, but all must join. Blanchard v. Dyer, 21 Maine, 8 Shepley, 
 111. Where a payment is made by several frbm a joint fund, they must join in a suit for re- 
 imbursement. Miter, if the payment though joint is from individual funds. Pearson .v. Park- 
 er, 3 N. Hamp. 366. Doreiiius v. Selden, 19 John. 213, Smith v. Hicks, 1 Wendell, 206. Parker 
 T. Leek, 1 Stewart, 528. Wh^re partners, acting as such, and in their partnership name, became 
 sureties for a debt which, after the dissolution of the partnership, they pay, they may/naintaia 
 a joint action against the principal for money paid. Day v. SWann, 13 Maine, 165. Biit wliere 
 seVeral sureties pay the d6bt of their principal, and there is ho evidence of a partnership or of a 
 joint ihterbst, or of payment from a joint fund, the presatiaption of law is, that each paid his pro- 
 portion of the same, and they cannot join in an action to recbVer the amount. Lombard v. Cobb, 
 14 Maine, 222. It is otherwise, however, when the sureties pay the debt jointly, or by a joint 
 bote, they may in such case join in an action against their principal. Appleton v. Bascom, 3 
 Metcalf, 169. Doolittle v. Dwight, 2 Metcalf, 561. 
 
 Where a bond is joint in form otily, but several ratione subjecta materia, an action may be 
 iaaiAtained in the name of one of several obligees. B.ut, it seims, if he can maintain such an ac- 
 tion on the bond, he must set forth the bond truly, and then by proper averments, show a cause 
 of action to himself alone, clearly embraced within the condition of the bond. Ehle v. Purdy, 6 
 Wend. 629. In that case, it was AcW, that one of two obligees cannot have an action on a, bond 
 in his own name. Without averring the death of his co-obligee. If the oyer varies from the instru- 
 ment declared on, the defendant may set it forth in his plea and demur, or he may, without set- 
 ting it forth plead 7ion estfdctiim, and avail himself of the variance on the trial. 
 
 If tlie promise is made jointly to two or more persons, they must all join, if living, in 
 the action, or they will be nonsuited on trial. Thus, in Wright v. Post, 3 Conn. 142, wliere 
 twenty persons, feeling interested in the public right of fishery, entered into an agreement 
 with each other that if any of them were sued for exercising the right, each of the others 
 would pay to those who were sued their proportion of what might be recovered against 
 them, and three of them were sued jointly, and after a joint recovery, each of those de- 
 fendants paid his share of the judgment, in a suit brought against one of the associates 
 to recover the amount he had agreed to contribute, it was held that the promise to indemnify was 
 ajoivl promise to the three vho -were iued jointly for exercising the right, and that they must 
 therefore bring a joint suit of indemnity, although they paid the judgment in several proportions, 
 and out of their separate property. 
 
IN POEM EX CONTEACTUi— *-PliAIMTIPFS. 9 
 
 the other part^oWhers (6) (1). The contradictions in the decisions and differ- »• 
 ence in the opinions of particular judges are attributable to doubts upon 'f''*-™"'**' 
 facts whether the contract were only joint or several (c). The reason as- 
 signed why all should join is, that when the interest is joint, if several were 
 permitted to bring several actions for one and the same cause, the court 
 would be in doubt for which of them to give judgment QI). If a third 
 person collude with one partner of a firm to injure the other partners, the 
 latter may (omitting such colluding partner) maintain an action against 
 such third person so colluding (e). 
 
 There may however, be cases where the employment of an agent may be 
 several as well as joint, or cases of a subsequent severance, so as to entitle 
 one partner to sue for Ms share (/) (2). 
 
 The arowment and party making conusance in replevin, may join in an 
 action On replevin bond (g-). 
 
 Thus, if A. convey an estate to several persons, and covenant with them, Whemeo- 
 " and to and with each and every of them, that he is lawfully seized, the """'• 
 action upon the Covenant must be brought by all the covenantees, and the 
 words of severalty shall not prevail (A). So, if a party covenant to and 
 with A. and B. to pay an annuity to A., this vests a joint legal interest in 
 A. and B., although the former is to derive the sole benefit; for only one 
 duty or act was to be performed, and there could not be a separate legal 
 interest therein (J). And where A. declared upon an account stated with 
 him of monies due to him and a third person, after verdict judgment was 
 arrested, on the ground that the promise, whether express or implied, must, 
 in point of law, be considered as made to all the persons whose debt it was, 
 and therefore *they all ought to have joined in the action (A). And where [ *10 J 
 A. and B. brought an action of assumpsit, and declared that their several 
 cattle had been distrained, and that the defendant in consideration of £10 
 paid him by the plaintiffs, promised to procure the cattle to be re-delivered 
 to them by such a time, and that he had not done so ; after verdict for the 
 plaintiffs, it was objected, in arrest of judgment, that the plaintiffs ought to 
 have brought several actions, because the promise was not entire, but a 
 several promise made to each of the plaintiffs ; but it was adjudged by 
 Kolle, C. J. and two other judges against one, that the action was well 
 brought jointly by A. and B. ; for though the cattle which belonging to A. 
 ought to be restored to him, and the other cattle to be restored to B., and 
 so the thing to be performed was several, and not joint ; yet as the contract 
 and consideration were joint, and it was not known how much the one gave 
 
 V 
 
 (6) Hatsallv. Griffith. 4 Tyr. 487, quali- (/) Semble, see oases cited in Hatsallv. 
 
 fying the oases there cited. Jellison v. La- Griffiths, 4 Tyr. 488, notes a, 4, c, and Break 
 
 fonta, 19 Pick. 344. v. Douglass, ib. 489. 
 
 ( c) Semble., see Break v. Douglass, cited 4 (g) 1 B. and P. 391. 3 M. and Sel. 180. 
 Tyr. 489. (A) 4 Co. 18 b, 3 Lev. 160. Dyer, 337. 
 
 (d) Per Lord Kenyon, 1 East; 501. (t) 1 East, 469. 3 B. and 0. 256. 
 (c) Longman and others v.Pole, 1 Mooi & (k) 9 Med. 116. Yelv. 177. 
 
 M. 223, but note, it was an action on the case 
 not ex contractu, 
 
 (1) White V. Curtis, 85 Maine, 534. 
 
 (2) Where one is liable to two or more on a joint contract, and settles with either for his part of 
 the claim, the remaining promisee or promisees may sue without joining the others, such settle- 
 ment with one being a severance of the cause of action. Holland v. Weld, 4 Greenl. 255; Aus- 
 tin v. Walsh, 2 Mass. 405. Baker t. Jewell, 6 Mass. 460. Beach v. Hotohkiss, 2 Conn. 697. r 
 Stedman t. Shelton, 1 Alabama, 86. 
 
 So if a. defendant promises to pay each of several partners his proportion of the debt, each may 
 lue him separately. Buiih v. Morris, 3 Gaines, 64. 
 
10 OF THE PAETIEB TO ACTIOUa. 
 
 ^ and how much the other, the action was well brought jointly (Z) (1). And 
 piAiNTiTFs j^ i^g^Q ^^Y[ together upon an attorney, and employ him to surrender their 
 several, principal, one of them cannot afterwards maintain a separate action against 
 the attorney, for neglecting to effect the render, for their situations and in- 
 terest Were identified (m). 
 Several in- But when the legal interest and cause of action of the covenantees are 
 terests. several, each may and should sue separately for the particular damages re- 
 sulting to him indiridually, although the covenant be, in its terms, joint (w) 
 (2). And it is improper, as well in eguiiy as at law, for a party to be 
 joined in a suit who has neither legal nor beneficial interest in its subject- 
 matter (o). 
 
 Thus if A. by indenture demise Blackacre to B. and "Whiteacre to 0., 
 and covenant with them and each of them (or it seems if he covenant with 
 them in express terms jointly) that he is owner of the closes, each should 
 sue separately in respect of his distinct interest, and they cannot jointly 
 sue, for they have no joint or entire interest in the same subject-matter (;o). 
 So, if a party covenant with A. and B. to pay them £10 each, or an an- 
 nuity to each, there, although the covenant be in terms joint, yet the dis- 
 tinct interest of each in a separate subject-matter shall attract to each 
 covenantee an exclusive right of action in regard to his own particular 
 damage ; and they cannot maintain a joint action, although the deed con- 
 tain covenants and stipulations for securities which are joint (p). So, 
 where A., B. and C. were appointed assignees under a commission of bank- 
 rupt and A. and B. each paid half of the solicitor's bill, it was decided that 
 A. and B. could not maintain a joint action against 0. for his proportion of 
 the money paid, but must each bring a separate action, and A. and B. 
 [ *11 ] having sued jointly, were *nonsuited (q') (3). But if A. and B. had bor- 
 rowed the money, which they paid on theiv joint credit, or their attorney 
 
 (2) 1 Kol. Ab. 81, pi. 9. Styles, 156,167, (o) See the excellent arguments in the King 
 
 203. 2 Saund. 116 a, note. of Spain t. Hachado, 4 Kuss. Bep. 231. 
 
 (JA) 1 Taunt. 7. (p) Supra, note (n). 3 B. and C. 254. 
 
 f 71) 5 Co. 186. 1 Saund. 153 n. 1. 8 Taunt. (o) 3 B. and P. 835. see 2 T. B. 282. 
 245. 2 Moor, 195, S. C. 5 Price, 529, S. C. 
 
 (1) See Shearman y. Akins, 4 Pick. 283. 
 
 (2) Vide Dunham v. Gillis, 8 Mass. 462. Witters v. Biroham, 5 Dow. and Ryl. 106. Vide 
 Phillips V. Bonsall, 2 Binn. 188, 143. Austin v. Walsh, 2 Mass, 401. Baker t. Jewell, 6 Mass. 
 465. Where several persons are engaged in a joint transaction, the proceeds of which are re- 
 ceived by a third person, who promises to pay each partner his respective proportion, in an ac- 
 tion against him by one of the partners for his proportion, he cannot object that there are otherO 
 jointly concerned. Bunn v. Morris and Wisner, 8 Caines, 54. Vide etiam Austin v. Walsh, ubi 
 supra. Hall v. Leigh, 8 Cranch, 50. Gould v. Gould, 6 Wend. 263. 
 
 (3) Vide Tates v. Foot, 12 Johns. 1. Hatch v. Brooks, 2 Mass. 293. Doremus v. Selden, 19 
 Johns. 213. Gould v. Gould, 8 Cow. 168. In the case last cited, W. Gould and D. Banks, Jr. 
 were as between themselves, equitably bound to contribute equally to the payment of a certain 
 sum of money. W. Gould was holden for Stephen Gould as his surety in two several bonds and 
 for the payment of the same debts the ancestor of D. Banks, Jr. was also security, and the pro- 
 perty descended to him was therefore holden, W. Gould, and D. Banks thus being liable and 
 being also in partnership, they paid the amount out of their partnership funds. They sued a 
 joint action for the money paid, and were nonsuit«d, on the ground that they could not maintain 
 a, joint action, the original responsibility of the bail being several. Although they happened to 
 be partners at the time of the payment, they could not, without some agreement or request from 
 S. Gould, so shape their payment as to raise a joint promise by implication to. both. If each had 
 been liable as a surety on a distinct demand against the defendant, although the amounts were 
 the same, they could not have taised a joint promise as against him. If the payment was made 
 out of a fund in which they were equally interested, then each did in fact pay one-half, and the 
 law raised a corresponding promise from the defendant to each for so much money paid for him 
 and at his request; which request was the original agreement to indemnify each of his sureties. 
 Gould V. Gould, 6 Wend. 268, In Graham v. Green, 4 Hayw. 188, the »vipreme court of ap- 
 
IN FORM EX CONTBACTU. — PLAINTIFFS. 11 
 
 had paid it for them on their joint account, they might have joined in the ^■ 
 action against C. (r) (1). Wher"^' 
 
 It is competent to a corporation, in making a by-law, to provide that a several. 
 fine shall be paid to, and recoverable by the head of the corporation, for Agreement 
 the use of the corporation ; and in such case the action may be brought in g^o^^^gu 
 the name of the officer to whom the penalty is so reserved (s). And a cor- 
 poration aggregate may maintain assumpsit for by-gone use and occupa- 
 tion of tolls, although they did not grant the tolls to the occupier by any 
 instrument under their common seal (i). So the members of a company 
 or partnership firm, may stipulate that in certain events one of the mem- 
 bers shall incur a fine, and that the action for the recovery of it shall be 
 brought by a particular person interested in the concern, for the use of 
 the rest excepting the defendant, and the law will give effect to such ar- 
 rangement by upholding the action (m). But if by a deed constituting a 
 company, certain trustees are to sue a member for goods he may purchase 
 of the company, no subsequent regulation, made without the consent of 
 the defendant (an original member), that another party should be compe- 
 tent to sue, can enable the latter to maintain the action (x) ; for in this in- 
 stance there is no original undertaking by the defendant not to object to 
 the non-joinder of the parties who ought otherwise to have been joined in 
 the action (a;). 
 
 Where a covenant is made with two or more parties, to pay them mo- a eove- 
 ney for themselves, or for the use of another, it is not correct to use the nant not 
 name of one only of the covenantees, although the others have omitted to *^6'="*™s- 
 execute the deed Q/}. Where joint covenantees may join, they must do 
 so (ar)- (2). The mere non-execution of the deed by one of them does not, 
 even ia the case of trustees, render it invalid (a), or afford a legal excuse 
 for not joining him as a plaintiff, for his assent is to be presumed (a) ; but 
 an express disclaimer, renunication, or refusal by him, would probably jus- 
 tify the omission to make him a party to the action (6). 
 
 It is a general rule, that in the case of partners, all the members of the By Part- 
 firm should be the plaintiff's in an action upon a contract made with the '^^^• 
 firm (3), nor can any private arrangement by the firm, that one only of the 
 partners shall bring the action, give him a right to sue alone (c). So, al- 
 though a guarantee has been given nominally to one of several partners, all 
 may sue upon the same, if there be evidence that it was intended for the 
 
 (r) 6 East, 225. (y) 3 B. & C. 354. 
 
 (s) 1 B. & P. 98 ; 3 Bing. 470. {2> Id. 
 
 (<) The Mayor and Burgesses of Garmar- (a) 9 B. C. 300; 2 Bar. & Adol. 822. 
 
 then v. Lewis, 6 Car. & P. 608. (4) 3 B. & C. 355; 9 Id. 308. 
 
 («) 3 Bingh. 463. (c) See Ante, 8, 9, 10; and see Alexander 
 
 (x) 8 M. & S. 488; 3 Bingh. 470. t. Barker, 2 Tyr. Rep. 140. 
 
 peals in Tennessee say " It is certain that by the rules of the common law,two sureties cannot join 
 in an action to recover the money which they have been compelled to pay for the principal." See 
 Williams v. Alley, Cooke, 257. Sureties, who pay the debt jointly, or by a joint note, may join 
 in an action against the principal. Appleton v. Bascom, 3 Metcalf, 169. Chandler v. Brainard, * 
 14 Pick. 285. . 
 
 (1) 9 Johns. 217. Where two join in the purchase of lottery tickets, and also agree to share 
 in the prizes, each may sue his action against the managers for his moiety of the prize drawn. 
 Homer v. Whitman, 15 Mass. 132. 
 
 (2) See Hays v. Lasater, 3 Pike, 565. 
 
 (3) Partners must alljoin in an action for the price of goods sold in the name of one only, 
 Halliday v. Sogget, 6 Pick. 359; Story, Partnership, §241, and this though the partnership ia 
 llissolTed, Wright t. Williamson, 2 P«no. 978. Bridge v. Payson, 6 Sandf. 210. 
 
•12 
 
 OP THE PARTIES TO ACTIONS. 
 
 I. PLAIN- 
 TIFFS. 
 
 When 
 several. 
 
 By Ten- 
 ants in 
 
 benefit of all (d). Whethep or not one member may *sue alone, where Ije 
 is solely interested in the concern, and the other ostensible partner is a mere 
 nominal party, without any interest in the business, was a question of some 
 difficulty. It appears, that in such case the partner having the exclusive 
 interest might sue .alone (e), and in a recent case, where an attorney carried 
 on business under the firm of A. and Son, and the son was not in fact a 
 partner, but acted as clerk to his father, and received a salary, it was held, 
 that A. might maintain an action in his own name, to recover from a client 
 the amount of a bill for business done (/). But in these instances the 
 plaintiff must adduce clear evidence, disproving that his ostensible partner, 
 though a minor, had any interest whatever in the business, or right to par- 
 ticipate in the profits (§•). 
 
 In the case of dormant partners) not privy to the contract, it seems that 
 the other members of the firm may omit their names in an action (A) (1) ; 
 and it has been decided (0) that the joint owners of a vessel engaged in the 
 whale fishery may sue a purchaser for the price of whale oil, although the 
 contract of purchase was made with one of the part-owners, and the pur- 
 chaser did not know that other persons had any interest in the transaction, 
 the joinder of the other parties making no difference to the defendant, and 
 not affecting any right of set-off (i) (2). But where a contract was made 
 by one of several partners in his individual capacity, who at that time de- 
 clared that the subject-matter of the contract was his property alone ; it 
 was held, that his declaration was evidence against all the partners, and 
 consequently that they could not sue jointly upon such a contract (/c). And 
 where a farm was demised to A. and B. jointly, and A. by written agree- 
 ment between himself and C, underlet part of it to C, and gave receipts 
 for payment of rent, and a notice to quit in his own name only ; it was de- 
 cided, that A. and B. could not maintain a joint action against C. for pull- 
 ing down a shed which stood on part of the premises demised (Z) (3). 
 
 If tenants in common (who hold by distinct titles) jointly demise prem- 
 ises, reserving an entire rent, they may, and perhaps should join in an ac- 
 
 (d) 4 Bar. & Cres. 664. 
 
 (c) 5 Esp. Bep. 199. 1 Stark. 25. 1 C. & 
 P. 89. 7 Moor«, 81, 32. sed -vide 2 Campb. 
 802. 
 
 (/ ) Kell V. Nainby, 10 B. & C. 20. 
 
 (g) 14 East, 210. 
 
 (A) 1 Esp. Kep. 528. 2 Taunt. 824. 1 
 
 Montag. on Part. 182. see 6 Ve?. 438 
 Bingh. 177. 
 
 (i) 4 B. & A. 437. 7 Moore, 31, 82. 
 
 (&) 1 M. * Sel, 349. ? Bar. & AdoL 
 S. P. 
 
 (0 7 Moore, 29. 
 
 2 
 
 (1) Clark V. Miller, 4 Wend. 628, 8 Serg. & Bawle, 55. Lord v. Baldwip, 6 Pick, 352. 
 Mitchell V. Dall, 2 Har. &. Gill. 159. Clarkson t. Carter, 8 Cow. 85, Alexander v. Barker, 
 2 Crompt, & Jer. 183 ; Cothary v. Fennel, 10 Barn. & Cress. 671 ; Story, Partnership, § 241 
 and note; Morton v. Webb, 7 Verwont, 128; Boardmau T. Eeeler, 2 Vermont, 65; Warren T. 
 Griswold, 8 Wendell, 666; Wilkes v. Clarke, 1 Dever 178; Shropshire v. Sbepard, 8 Alabama 
 733. 
 
 (2) But in an action on a contract of matuhip, (in regard to which, see Baxter v. Bodman, 
 8 Pick. 435,) entered into by the masters of two whaling -vessels, th? officers and crew of one 
 of the ships cannot be joined as co-plaintiffs with the owner. Grozier v. Atwobd, 4 Pick. 432. 
 Where all the contracts of a vessel, and all its transactions are carried on in the name of one of 
 the owners, he may sue alone; the silent partner need not be joined. Phillips v. Pennywit, 
 1 Pike, 59. 
 
 But if several owners of a vessel are interested in the cargo, they are properly joined in an 
 action against a factor for the balance of the proceeds, as settled by one of them, the account 
 being stated as with the owners. Jellison v. Lafonte, 19 Pick. 294. 
 
 (3) See Karstow v. Gray, 2 Greenleaf, 409. 
 
 Where two persons, who are partners in business, were subjected to the payment of a debt 
 of a third person, the one as surety, and the other as his heir of a co-surtHy, which debt was paid 
 from the partnership funds. Held, that each might sue the principal for us moiety of the money 
 paid. Gould v. Gould, 6 Wend. 268. 
 
IN POEM EX CONTRACTU. — PLAINTIFFS, 12 fl 
 
 Hon to recover it (m) (1) . If the rent be reserved to them separately in dis- i- „. . 
 tinct parts, they must sue separately; for in such case, as well their estates ^^q™™" 
 or intecests, as the terms of the contract, are distinct and divisible (w). several. 
 And where, in fact, there have been separate demises by tenants in common 
 of their interest, or where tenants in common, by conveyance or purchase 
 become landlords, they must sever* in an action for rent or double value (o); [ 'IS ] 
 though where they have actually joined in a demise they might join (o), 
 and it seems that tenants in common must sever in an avowry for rent Qp). 
 
 Joint tenants (unlike tenants in common) have a unity of title and inter- Joi"* '«»- 
 est, in respect of which they must jointly sue upon a contract relating to the ^J^jj^^ 
 estate which is made by, or enures to the benefit of all (g). And for the 
 same reason Parceners must join in an action ex contractu, which relates to 
 their tenements, (f) ; and accordingly it has been recently determined that 
 an action will not lie at the suit of one of three coparceners to recover her 
 proportion of rents of the estate received by an agent (s). 
 
 The consequences of a mistake, in omitting to join a party who ought to Conse- 
 have been made a plaintiff in an action ex contractu, or in adding a party 9««»«» "f 
 ilUprdlierly in such an action are extremely serious. ™'' " '' 
 
 In all cases of contracts, if it appear upon the face of the pleadings that 
 there are other obligees, covenantees, or parties to the contract, who ought 
 to be, but are not joined as plaintiffs in the action, it is fatal on demurrer, 
 or on motion in arrest of judgment, or on error (i) (2) ; and though the ob- 
 jection may not appear on the face of the pleadings, the defendant may 
 avail himself of it, either by plea in abatement (u), or as a ground of noii- 
 sttit on the trial as a variance upon non est factum, if the action be upon 
 a specialty, or if it be upon any other contract, upon the plea of the gener- 
 
 (m) I Ld. Eaym. 340 ; Lit. s. 315,316. 5 T. (q) 2 Bla. Com. 182 ; Co. Lit. 180 b. Bad. 
 
 R. 249 ; 5 B. & A. 851 ; and see 1 Bing. N. Abr. Joint-tenants, K., 1 B. & P. 67. 
 
 C. 713. 1 Hodges, 170 S. C. (r) 2 ,Bla. Com. 187, 188. Vin. Ab. Par- 
 
 (n) Id. ;Bao. Abr. Joint-tenants, K.; Lit. ceners, Ti, Eep. tempt. Hardw. 398. 
 
 sect. 315; Kirktnan v. Newstead, 1 Esp. N! P. (s) Decharms v. Harwood, 4 Moore & So. 
 
 Dig. 145, 4th ed.; 5 T. K. 249. 400 ; 10 Bingh. 526, S. C. , 
 
 (0) Wilkinson v. Hall, 1 Bingh. N. C. 713 ; (t) 2 Stra. 1146 ; 1 East, 497 ; 1 Saund. 
 1 Hodges' fiep. 170, S.C. 163, n. 1, 291 f. 
 
 (p)Ante, n. (m). p. 12 ; 5 T. R. 249. As (u) Com. Dig. "Abatement," E. 12. See 
 to the mode of avowing or declaring for rent in forms of plea and replication and points. Da- 
 such case, id.; post, toIs. ii. & iii. ; 4 B. & C. yis t. Evansj 6 Car. and P. 619. 
 157. 
 
 (1) In an action of trespass, brought by tenants in common, in relation to their lands, or in 
 debt for rent arising out of land, or in any other action merely personal, they must all join 
 as plaintiffs. Decker v. Livingston, 15 John. 479; Hill v. Gibbs, 5 Hill, 56; Putnam v. Wise, 
 1 Hill, 234; Kiich v. Penfield, 1 Wendell, 380; Sherman v. Ballou, 8 Coweil, 304 ; Bradish v. 
 Shenok,; 8 Johns. 151, Brotherson v. Hodges, 6 Johns. 108. But in actions whioh savor of the 
 realty they ought not to join, ib. 
 
 (2) See Dodge v. Wilkinson, 3 Metealf, 292. Bell v Laymans, 1 Monroe, 89. Bragg v. Wel- 
 sell, 5BIaokf. 95, 
 
 , The general rule is, that the omission of proper parties, as plaintiffs in cases of contract, Biay be 
 taken advantage of at the trial under the general isSue; and if it appear on the face of 'the plead- 
 ings, it is fatal on demurijer, or on motion in arrest of judgment, or in error. Accordingly where 
 it appeared on the face of the declaration that the plain tiffi were not overseers of the poor when 
 tlie suit was brought,, and of course that the right of action was not in them; but had passed to 
 their successors, the judgment rendered in the court below for the plaintiffs was reversed. Armine 
 V. Spencer, 4 Wend. 406. It is settled by repeated |,decisions in New York, that overseers of the 
 poor are a quasi corporation, and such can sue and be sued. Pittstown v. Plattsburgb, 18 Johns. 
 418. Norwich v. New Berlin, ib. 882. It has also been decided that the acting overseers Qf the 
 
 Vol. I. 3 
 
•14 
 
 OP THE PARTIES TO ACTION. 
 
 FLAIHTin'S 
 
 When 
 uveral 
 
 Trustees, 
 &c. by 
 Statute. 
 
 al issue (x") (1). When the objection appears on the face of the plead- 
 ings it is sometimes advisable to demur, in *order to obtain costs, as each 
 party pays his own costs, when the judgment is arrested (y) (2). 
 
 Where the action is upon a deed, and only one of the covenantees im- 
 properly sues, the defendant may also avail himself of the nonjoinder, by 
 praying oyer of the deed, and setting it out, and then demurring generally 
 to the declaration (z). 
 
 If there be a legal ground for omitting to use the name of one of sever- 
 al covenantees as a plaintiff, as his death, &c., it is necessary to show such 
 excuse for the nonjoinder in the declaration, and to declare as surviving 
 partner (a). 
 
 There are various acts of parliament which without incorporating certain 
 bodies of individuals, &c., enable them to sue, and entitle others to sue 
 them, in the names of their clerks, treasurers, &c. for the time being. 
 Thus, by the General Turnpike Act (6), the trustees and commissioners 
 of any turnpike road inay sue and be sued in the name of one of the trus- 
 tees, or of their clerk or clerks far the time being, that is, at the time the 
 action is brought (c). The West India Dock (rf), the London Dock (e), 
 and some Insurance companies (/) may sue or be sued in the names of 
 
 (i) 1 Saund. 154, n. 1. 291, f. g. 5 Stra. 
 820.^ 2 Stark. 424. The good sense of this 
 rule,' (-whioh, as we sl»all see hereafter, does 
 not prevail in the' otsse of plaintiffs in torts, or 
 of several defendants), has been questioned; 
 but it is admitted to prevail. See 1 Saund. 
 291 f. g. 1 B. and P. 73. 6 T. K. 770. 2 
 Stark. 424. In the case of co-executors, the 
 objection can only be taken advantage of by a 
 plea in abatement; 1 Saund. 291 g. 3T. R. 
 658. 1 Chit. Kep. 71. As the omission of a 
 party is said to be no ground of nonsuit in an 
 action in form ex delicto, (see 6 T. R. 770. 3 
 East, 62, ace. sed qnare, see 2 New Rep. 365, 
 454. 12 East, 94, 454), it appears to be advisa- 
 ble where there is no doubt as to the number of 
 persons to be made plaintiffs, and when the de- 
 claration may be in case, to adopt that form of 
 action. So many instances occur in which a 
 cause is defeated by the accidental nonjoinder or 
 misjoinder of the plaintiff, that it is perhaps to 
 be regretted that no legislative provision has 
 been made upon the subject analogous to the 
 enactment in the 7 Geo. 4, c. 64, b. 14 respect- 
 ing indictments, sea post, 14, note {g). How- 
 
 ever, in modern practice, the rfoctrinc of amend- 
 ment has been, in seme instances, usefully ap- 
 plied to remedy or mitigate the evil, as orders 
 have been made to strike out the name of one 
 of the plaintiff in a late stage of the proceedings 
 where otherwise, the statute of limitation would 
 bar a fresh action ; and in Fox v. Clifton and 
 others, C. P. Nov. 1829, an order was made 
 just before the trial, that some of the defend- 
 ants' names be struck out. The action was iu 
 assumpsit. See the present practice as to 
 amendments of writ, S Chitty's Gen. Prac. 173, 
 174. 
 
 (y) Cowp. 407. 
 
 (z) 1 Saund. 154 a, note. 
 
 (a) 4 B. and Aid. 874. 2 Saund. 121, n. 1, 
 2 Johns. Rep. 84. 
 
 (6) 3 Geo. 4, e. 126, s. 74. 
 
 (c) 1 R. and M. 214. Whittemore v. Wilkes, 
 1 M. and Malk. 222, 223. 
 
 (d) 89 Geo. 3, c. Ixix. s. 184. 
 
 (c) 39 and 40 Geo. 3, c. xlvii s. 150. 
 
 (/) 53 Geo. 3, c, ccxvi. 3 B. and-C. 178 : 
 and see 4 B. and C. 962. 7 D. and R. 376, 
 S. C. 
 
 poor are responsible for the official contracts of their predecessors in ofBce. (Todd v. Birdsall, 
 1 Cowen, 260, and 6Cowen, 309;) and in Jansen v. Ostrander, (1 Cowen, 670,) it was held 
 that the rights and liabilities of these quasi corporations, whether they arise from torts or con- 
 tracts, and whether the latter be simple or by specialty, pass to their successors in ofiBoe. In Jan- 
 sen V. Ostrander, the action was brought by Jansen as supervisor of Ringston, in his own name, 
 upon a collector's bond given to Gaasbeck, his predecessor in ofBce, and the action was sustained : 
 and this upon the principle that all the rights of his predecessor have devolved by law upon him. 
 The decision in that case was considered sound. Armine v. Spencer, 4 Wend. 408. 
 
 (1) Baker v. Jewell, 6 Mass. 460. Converse t. Symmes, 10 ib. 379. Ziele v. Campbell, 2 J, 
 C. 384. Brown v. Belcher, 1 Wash. 9, 15 Johns. 482. Dob t. Halsey, 16 Johns, 34. Robertson 
 V.Smith, 10 Johns. 459. Wilson v. Wallace, 8 S. and R. 53. Doremus v. Selden, 19 Johns, 
 213. Ulmer v. Cunningham, 2 Greenl. 117. Waldsmith v. Waldsmith, 2 Ham. 156. Robinson 
 T. SoaU, 2 Penn. 817. 
 
 (2) Pangburn v, Ramsey, 11 Johns, 141. 
 
IN FORM EX CONTRACTU. — ^PLAINTIJFS. 14 a 
 
 their treasurers or clerks (g-). The 7 & 8 Geo. 4. c. 36, s. 9, enables »• 
 co-partners, as bankers, carrying on business as such under the provisions ^e^'"'*' 
 of that* act to sue and adopt proceedings at law and in equity, and in several. 
 bankruptcy, in the name of any one of their public officers, nominated as 
 therein mentioned, for the time being (Ji). 
 
 *It should be observed, that where trustees, clerks or treasurers, &c. r *\k^ n 
 sue or are sued in their official characters by virtue of an act of parliament, ally. When 
 the cause of action should, in the pleadings, be stated to have accrued to the inter- 
 or against the principals or company of individuals whom they, for this "' j" *j° 
 purpose, represent. If however, the statute provide not only that these has been 
 parties shall be nominal plantiffs, but also that the cause of action shall asiigned. 
 be vested in them in trust, they should then declare accordingly. 
 
 Where a party with whom a bond, simple contract, or other mere per- 
 sonal contract was made, has assigned his interest therein to a third per- 
 son, the latter cannot, in general, sue in his own name, the interest in, and 
 remedy upon, personal contracts being choses in action, which are not, in 
 general, assignable at law (1), so as to give the assignee a right of action 
 
 (g) As to actions by Friendly Societies, that property, whether real or personal, be- 
 see 10 Geo. 4, c. 56, s. 21. And by the stat- longing to any coijnii/', riding or division, may, 
 ute 57 Geo. 3, o. 130, s. 8, actions by and in such indictment, be stated to beldhg to the 
 against the trustees of Savings' Banlss are per- inhabitants of sUoh county, riding oV division, 
 tuitted, in matters relating to such banks. without specifying the' names of Srfch Jnhabi- 
 Overseers of the poor for the time being may, tants; and by s. 16, that property belonging 
 by that description, sue on Basiardy £onrfs, to any pan'sft, township, or hamlet, may be 
 and other securities of that nature, 54 Geo. stated to belong to the overseers of the poor 
 3, c. 170, s. 8; see also 59 Geo. 3, c. 12. s. for the time being of such parish, township, or 
 17, as to actions, &o. by churchwardens and hamlet, without specifying the names of all or 
 overseers, with regard to parish lands and bull- ■ any of such overseers; and by s. 17, that prop- 
 dings, and the assistant overseer's bond; see erty under turnpike trusts may be stated to 
 2 D. & K. 708. As to suits by societies or belong to the trustees, or commissioners of the 
 partnerships in Ireland, see ,5 Geo. 4, c. 73. road, without specifying their names; and by 
 6 G. 4, c. 42, s. 10, and Scotland,, 6 G. 4, s. 18, that property under the commissioners 
 c. 131. Where goods stolen are the property of sewers may be stated to belong to the oom- 
 of partners or joint owners, they may be de- missioners having the management of it, with- 
 soribed in an indictment or information, for out specify ing their names . But it is observ- 
 a felony or misdemeanor, as the goods and able, that these provisions in the 7 Geo. 4, do 
 chattels of any one or more of the partners or not extend to the pleadings in a civil prooeed- 
 joint owners, and another or other, as the case ing. 
 
 may he, and this provision extends to all joint- (A)' ^^e the statute and decisions, Chit, on 
 
 stoclr companies and trustees, 7 Geo. 4, c. 64, Bills, 8th ed. 72 to 77. 
 s. 14. The same statute, s. 16, also provides. 
 
 (1) In Pennsylvania, fcy the act of 28th May, 1715, (1 Sm. Laws, 90,) all bonds, specialties, 
 and notes in Writing, made or to be made, and signed by any person or persons, whereby such 
 person or persons is or are obliged, or' doth or shall promise to pay to any other person or persons 
 his, her, or their order, or assigns, (See Aldricks v. Higgins, 16 Serg. & Rawle,.212,) any sum or 
 sums of money mentioned in such bonds, specialties, note or notes, may, by the person or persons 
 to whom the same is or are made payable, be assigned, indorsed and made over to such person 
 or persons as shall think fit to accept thereof. The person or persons to whom such bonds, spe- 
 cialties or notes are or shall be assigned, indorsed, or made. over, their factors, agents, executors, 
 or assigns, may at his, her or their pleasure again assign, indorse, and make over the same, and 
 so toties quoties. The assignees of bonds, specialties and notes, are authorized to sue in their own 
 names; and it is provided, that it shall not be in the power of the assignors after assignment, to 
 release, &c. The assignment of bonds or specialties must be " under hand and seal before two or 
 more credible witnesses." See a precedent of a declaration in debt on bond by the assignee. Bead's 
 Plead. Ass. 251. In Maryland, by the act of 1829, ch. 51, it is provided, " that any assignee or 
 assignees bona fide entitled to any judgment, bond, specialty, or other chose in action, for the pay- 
 ment of money, by assignment in writing, signed by the person or persons authorized to make the 
 same, may by virtue of such assignment, sue and maintoin an action or actions in any court of 
 
15 OP THE PABTIES TO ACTIOJSfS. 
 
 I- in his own name, but he must proceed in that of the assignor (1), or if he 
 l^^^^^^be dead, in the name of his personal representative (A) (2). Upon this 
 interestaa- principle it was held, that although the Scotch Bankrupt Act (V) vests in 
 signed, the trustee for behoof of the creditors the estate and effects of the bank- 
 rupt, so far as may be consistent with the laws of the other countries, when 
 the effects are out of Scotland, yet the trustee cannot sue in his own name 
 for a chose in action which was vested in the bankrupt, the statute con- 
 taining no words giving to the plaintiff a right of suit (m) . And in the 
 common case of a composition deed, the trustees can only sue in the 
 name of the original creditor in whom the legal interest in the contract still 
 remains. Where the assignor of the chose in action has become bankrupt, 
 the action must be in his own name, and not in the name of the assignee 
 of such bankrupt, because the assignee of a bankrupt can only sue upon 
 contracts in which the bankrupt was beneficially interested (n) ; and if after 
 a charter-party the owner assigns, and then become bankrupt, he should 
 sue (o). If, however, an express promise or contract to pay the debt, or 
 perform the contract, be made to the assignee of the chose in action, in 
 consideration of forbearance, or in respect of any other new consideration 
 
 (fc) 10 East, 281 ; 4 T. R. 840. 1 East, 690. 4 Taunt. 326. 
 
 104. 3 Wils. 27. 1 Saund. 210, 153. 154 ; (I) 54 Geo. 3, c. 137. 
 
 2 Moore, 185. 18 East, 73. 16 East, 36. 8 B. (m) 6 M. & S. 126. 4 D. & R. 669. 
 
 C. 395. But a revived corporation may sue (71) 8 B. & P. 40. 1 T. R. 619. 3 B. & 
 
 on a bond given to the old corporation, 3 Bur. A. 697. The executor of the assignor must 
 
 1872, 1873. 8 Lev. 273. As to a churchwar- sue if the assignor be dead, 2 Moore, 184. 
 
 den suing, see 2 Hen. Bla. 559, A chose in (p) 10 East^ 279. 2 Taunt. 407. 1 Marsh. 
 
 action, may be assigned by parol, 4 T. R. 248. 
 
 law or equity, as the case may require, in his, her, or their name or names, against the obligor 
 or obligors, debtor or debtors therein named, &c." 0nde^ this provision it has been decided 
 that where S. the holder and obligee of a single bill, bequeathed specifically to A., and made T., 
 the obligor, his executor, who, upon thte death of S. assented tp this legacy, and delivered the sin- 
 gle bill to' A., who by assignment in writing transferred it, and all her interest in it to T., who as- 
 signed it, in writing, to K., K. was entitled to recover against T. the obligor, in an action of debt 
 brought in his own name. Kent ». Somervell, 7 Har. & Gill, 266, 
 
 (i) Sei 10 Serg, & Rawje, 320, 321; Read v. Young, 1 Chip. 2^4. I|ut the case ttme put, pf 
 the bond informally assigned, is entirely inconsistent with the principle stated in the text, and 
 seems to be founded upon Fenner v. Meares. Vide Crooter v. Whitney, 10 Mass. 310. Where a 
 person receives securities from A. to dispose of the money to be received thereon, to certain speci- 
 fied purposes, and to hold the balance subject to the order of A. and the trust is accepted, the as- 
 signee of the balance may maintain an action for money had and received, against the trustee, the 
 acceptance of the trust being equivalent to an express promise to the person, to whom A. should 
 direct the money, when received, to be paid. Weston v. Barker, 12 Johns. 276. Et vide Neilson 
 T. Blight, 1 Johns. Cas. 235. Crocker v. Whitney, ubi supra. The assignee of a person having 
 only an equitable title to a vessel may bring assumpsit for her earnings in the name of the as- 
 signor, Brigham v. Clark, 20 Pick. 43. 
 
 (2) The indorsee of a promissory note given in Conneotiput, where promissory notes are not 
 negotiable, inay, in the State of New York, maintain an action in his own name against the maker; 
 for the lex loci contractus does not govern as to the mode of enforcing the contract. Lpdge v. 
 Phelps, 1 Johns. Cas. 189; 2 Caine's Cas. i« error, 321. ' 
 
 An indorsee of a note, executed in Massachusetts, may sue it in his own name in Conneotiout. 
 Goff V. Billinghurst, 2 Root, 527; See Bowe v. Olcott, ib. 383. 
 
 But where the holder of a negotiable note derives his title under the insolvent laws of another 
 state, he cannot sustain an action on such note in his own name, Bi-ush v, Curtis, 4 Conn, 312. 
 
 An assignment of a promissory note not negotiable, does not pass to the assignee a legal right 
 to the note; but merely vests in him an equitable interest, whichthe Courts of law will protect; 
 and this was the object of the Connecticut Statute of May, 1822. Lyon v. Summers, 7 Conn. 
 899. ' •' 
 
 A note not negotiable cannot, by any virtue in the law of South Carolina of 1778, authoriang 
 
IN FORM EX gONTBACTU.—- PLAINTIFFS. 15 a 
 
 such assigpee may proceed in Hs own pame, declaring upon such promise ^• 
 and new consideration (p) (1). plmniots. 
 
 There are many instances, in which, hy express legislative provision^ 8. wiiea 
 the assignee of a chose ip, action may sue ip his own name to enforce the assigned, 
 recovery of the demand. The operation of the bankrupt and insolvent g gueces- 
 *act is to this effect (^q); and by various statutes the assignee of a bail bond sor, &o. by 
 (r), replevin bond (s), an India bond (f), or a judgment by confession in statute. 
 Ireland (u), or a promissory note C^*) (2), may sue in his own name ; and [ 1^ J 
 the avowant may join with a party making cognizance in an action on the 
 replevin bond {x). The remedy upon a bastardy bond, or other security 
 given to a parish or district, as an indemnity against the expenses to be in- 
 curred by reason of the birth or support of a bastard child, is vested " in 
 the overseers of the poor for the time being," and in their names only can 
 the action be brought («/), And a voluntary bond conditioned for the pay- 
 ment of a weekly sum for the support of a bastard child, though not 
 stri ctly a bastardy bond, may yet be sued upon by a succeeding overseer 
 
 (^) 1 Saund. 210, n. 1. 8 T. B. 595. 4 But not the assignee of an India certificate, 16 
 
 Bar.' and Ores. 525. Ves. 443. 
 
 (g> Posi, 22, 26. (u ) 3 Taunt. 82. 
 
 {r) 4 Ann. c. 16. s. 20. (V) 3 and 4 Ann. o. 9, s. 1. 
 
 (s) 11 Geo. 2, c. 19, s. 23. 1 B, and P. {x) Ante, ^, v.oia (g). 
 
 881, n. (ffl). Mau. and Sel. 180. (y) 54 Geo. 3, c. 170, s. 8. 3 Moore, 21. 
 
 (0 51 Oeo. 3, 0. 64. s. 4. see 18 East. 509. 8 Taunt. 691, S. C. 
 
 assignees to. sue in their own name, be transferred verbally or by delivery merely. Smith v. 
 Lyons, Harper, 334. 
 
 (1) In Boggs V. Ingraham, 3 Dall. 505, 2 Teates, 487, it was held, that the assignee of a stock 
 contract in the following words, "On the 18th of April, 1792; I promise to receive from Joseph 
 Boggs, or order, ten thousand dollars, six per cent., and pay him for the same at the rate of twen- 
 ty three shillings and seven pence three fourths per pound," could maintain an action in his own 
 name, without any new consideration or promise made to the assignee. The court founded their 
 opinion upon Fenner v. Mears, 2 W. Bl. 1269, (2 Yeates 492).' but that case has often been 
 doubted, both in England and in this country. (1 East, 104, 432. 14 East, 587 n. (a). 12 East, 
 582. 5 Wend. 208,) and the only ground upon which either Fenner v. Meares, or Boggs v. In., 
 graham, can be sustained at all is, that the determination having been made according to equity 
 and good conscience, the court would not, upon a motion for a new trial, disturb the verdict. In 
 Wiggin V. Damrell, 4 N. Hamp. 69, it was held, that where a note not negotiable was assigned 
 by the payee before it was due, and after it became due, the maker orally promised to pay its 
 contents to the assignee, the assignee could sustain an action in his own name against the maker. 
 The note was given partly for money borrowed and partly for the acceptance of an order. In that 
 case the court refer to Currier v. Hodgdon, 3 N. Hamp. 32, as specifically deciding this point. In 
 this latter case the note was for " thirty dollars worth of neat stock. " See also Crocker v. Whit- 
 ney,.10 Mass. 816; Mowry v. Todd, 12 Mass. 281; Hall v. Marsten, 17 Mass. 575; Van Stab- 
 herst V. Pearce, ib. 258; Norris v. Hull, 18 Maine, 832; Smith v. Berry, 18 Maine, 122; Park- 
 hurst ti. Dickerson, 21 Pick. 307; Gibson w. Cooke, 20 Pick. 18; AUston ». Contee, 4 Harr. & 
 Johns. 351 ; Owinga v. OwingSj 1 Harr. & Gill. 484. 
 
 It has been held in the foll<Jwing cases, that an express promise by the debtor, to pay the as- 
 signee, will warrant a suit in the assignee's name founded on the assignment and promise. Bur- 
 gee tj. Collins, 7 Harr. & John. 213; Bulklin v. Ward, 7 Vermont, 195; Lang u. Eiske, 2 Eairf. 
 385; Jessel v. Williamsburg Ins. Co. 8 Hill. 88. In Warren v. Wheeler, Sup. Jud. Ct. Maine, 
 June, 1843, at Bangor, 6 Law Eep. 268, it was held that the assignee of a bond may sustain as- 
 sumspsit upon an agreement indorsed thereon, by which the obligor promises performance to the 
 assignee, though the agreement is without a new consideration, and is not under seal. See Du- 
 bois •». Doubleday, 9 Wendell, 317. 
 
 (2) The defendant cannot defeat the suit by showing a want of interest in the nominal plain- 
 tiff. Alsop V. Caines, 10 John. 400. Eaymond v. Johnson, 10 ib. 488. Where three adjoin- 
 ing towns on a river are by statute authorized to regulate the times of taking fish, and also to 
 sell the right within such towns; and two of the towns having sold their interest to the third ; 
 held,, that the latter might sue an action to recover the purchase money, she having transferred 
 her interest in the fishery. Watertown v. White, 13 Mass. 477. 
 
10 OP THE PARTIES TO ACTIONS. 
 
 1 (z) < The acts for the encouragement and protection of Friendly Societies, en- 
 
 PLAINTIFFS. ^^Yq them to sue in the names of their " treasurers or trustees for the time 
 
 interest'as- being ;" and as the right or cause of action is vested by the statutes in such 
 
 signed. treasurers or trustees, (for the use and benefit of the society), they must 
 
 necessarily be the plaintiff (a). 
 
 By the custom of merchants, the assignee or transferee of a bill of ex- 
 change or check on a banker, may sue therein in his own name (1). 
 
 (4) 7 Bingh. 477. (a) 10 Geo. 4, c. 56, s. 21. 
 
 (1) Where a banking corporation accepts a check of a third person, for part of the amount 
 of a note falling due, and also takes a new note for the balance, at the same time delivering 
 up the old' note; held, that in case the check is dishonored, an action would lie on the old 
 note against the maker. Oloott «. Rathbone, 5 Wend. 490. So when a creditor receives 
 a note or check for his debt, and gives a receipt in fall, he is not concluded by his receipt, 
 ib. 1 Cowen, 290; 9;John3. 310. Nothing is considered as an actual payment which is not 
 in truth such, unless there be an express agreement that something short of a payment 
 shall be taken in lieu of it. The case of Kean v. Dufresne, 8 S. & B. 233, was thus. 
 Dufresne held a note against Kean and Foster, who were partners. Subsequent to the 
 dissolution of the partnership, Kean gave his own note for one of the firm. Snfresne got 
 Kean's note discounted and applied the avails to the company's note. Held, that Dufresne 
 might maintain action on the note of the firm ; the note of Kean being dishonored. In that 
 case, however, it did not appear that the old note had been given up. And Chancellor 
 Loughborough, in ex parte Blaokley, 7 Vesey, jun. 597, seems to consider that an important 
 circumstance. But this circumstancfe is not decisive. It is but matter of evidence to show 
 the nature of the transaction and the intention of the parties. Olcott v. Rathbone, 5. Wend. 
 490. See Chitty Cont. (6th Am. ed.) 767, note (1) and cases cited. In Massachusetts 
 and Maine the giving of a negotiable promissory note is held prima facie evidence of pay- 
 ment of a simple contract debt for which it is given, ib. Whitoomb v. Williams, 4 Pick. 228, 
 Cornwall v. Gould, 4 ib, 444; Wood v. BodweU, 12 Pick. 269, 270; Des Cadillas v. Harris, 8 
 Greenl. 298, Newell v. Hussey, 18 Maine, 249. 
 
 Where, however, the action was sued in the name of the cashier, and there was no evi- 
 dence that the note had been transferred to him, or that the suit was instituted in his name 
 by the direction of the bank, it was decided that he was not entitled to recover. The owner 
 of a promissory note indorsed in blank can make whom he pleases the holder of it without 
 divesting himself of all interest in it, and a suit may be sustained in the name of such hol- 
 der; but the bare using of a person's name as plaintiff does not make him a bolder or 
 assignee. The cashier had the custody, but the bank had the legal possession. Olcott v 
 Rathbone, 5 Wendell, 490. 
 
 The holder of a note payable to bearer, or of a note payable to order, and indorsed fcy the 
 payee to him or in blank, may sustain a count for money had and received by proof of such 
 note, 12 Johns. 90; 4 Pick, 421; but if a plaintiff cannot recover on the note as bearer or 
 holder for the want of title or authority to sue in his own name, he cannot recover on the 
 common counts. Olcott v. Rathbone, Wend. 490. 
 
 A note was made payable at a laank for the purpose of being discounted to pay a specific 
 debt, and the debtor procures a person to sign said note as surety; and he signs " A. B. surety;" 
 and the bank not discounting the note, the creditor for whose benefit the note was made, may 
 maintain an action upon such in the name of the bank — the latter assenting to such use being 
 made of the note. Utioa Bank v. Granson, 10 Wend. 314. The maker of the note thus signing, 
 by operation of the law merchant, engages to pay the note, without any restriction as to the de^ 
 sign or object for which it is made. Ib. In such case, the holder need not show such a consider- 
 ation as is required where the note is wrongfully put in circulation. Where the object of the 
 making fails, and it is sent into the world by fraud, the holder in such a case must shqw not only 
 a valuable consideration, but that he took the paper in the usual course of business. 8 Kent's 
 Com. 84; 20 Johns. 637. A consideration which would be valid between him and the person 
 from whom he received it, might not be sufiScient in such a case against the maker. These cases 
 turn upon commercial principles, peculiar to negotiable paper, and are to be governed by the 
 somewhat analogous doctrine relating to the liability of sureties and guarantors simply as such. 
 Utica Bank v. Granson, 10 Wend. 314. 
 
 An action on a note, payable to bearer, or indorsed in blank, may be maintained in the 
 name of any person, without bring required to show that he has an interest in it, unless 
 he gains the possession of the note under suspicious circumstances. Ogilby v. Wallace, 
 2 Hall, 553. Thus, where the note was payable to order, and the plaintiff of record 
 was a fictitious person who was non-suited at the trial; the note being the properly of a 
 
IN POEM EX CONTRACTU. — PLAINTIFFS. 16 a 
 
 An exception to the rule that a debt or chose in action cannot be as- i- piain- 
 signed at law arises in the following case put by Buller, J., in Tatlock v. g ™^^^ 
 Harris (6) ; " Suppose A. owes B. £100, and B. owes C. £100, and the intcrestas- 
 three meet, and it is agreed between them that A. shall pay B. the £100, signed. 
 B.'s debt is extinguished, and 0. may recover that sum against A." In 
 such cases an express a,greement between all the parties that A. should be- 
 
 (4) 3 T. R. 180. Israel jj. Douglas, Hen. 366. 8 i&. 395. See Chitty iun. on Contracts, 
 Bla. 239. See also 3 B. and C. 855. 4 Id. 184. 
 
 real party whose name was disclosed. The court, however, directed the nonsuit to be set aside, 
 that the questions of fact in respect to the possession and prosecution of the note, might be sub- 
 mitted to a jury. Possession of a note, transferable by delivery merely, or endorsed in blank, is 
 prima facie proof of title. Bayley v. Taber, 6 Mass. 451; Northampton Bank u. Pepoon, 11 Mass. 
 288; Pitts v. Keyser, 1 Stewart, 154; Johnson v. English, ib. 169; Smyth v. Hawthorn, 3 Rawle 
 355; Bean v. Hewit, 5 Wendell, 257; Jackson v. Heath, 1 Bayley, 355. 
 
 A person to whom a negotiable note indorsed in blank was delivered for collection, may main- 
 tain an action on it. Little v. O'Brien, 9 Mass. 423. See Pitts v. Keyser, 1 Stewart, 154. 
 
 Where possession of a promissory note has been obtained by fraud, the holder cannot bring an 
 action on it against either of the parties to it. Talman v. Gibson, 1 Hall, 308. 
 
 The holder of a promissory note negotiable by delivery may, under suspicious circumstances, 
 be required to show that he has authority from the payee to receive the contents. Lee «. Ware, 1 
 Hill, S. C. 313. 
 
 The mere depositary of a note payable to bearer, cannot sustain an action «n it. Sherwood v. 
 Keys, 14 Pick. 172. 
 
 Where the defendant was the payee of a promissory note, and indorsed it to the plaintiff, who 
 indorsed it to a bank: the note being protested, the defendant paid a part, and promised to pay 
 the balance; but not paying, he was sued as indorser and a judgment was recovered for the bal- 
 ance due. Afterwards the defendant paid 380 dollars, and they held the note which had not been 
 fully paid. The plaintiff sued the defendant as indorser in the usual form ; and also for money 
 paid, &c. It was decided that the plaintiff was not entitled to maintain his action as it had not 
 been fully paid, and was the property of the bank; but that he might recover the 380 dollars as 
 money paid for the defendant. Butler v. Wright, 20 Johns. 367. 
 
 Where a note was indorsed by the defendant for the accommodation of the makers, who before 
 the note was negotiated became insolvent, and the defendant requested them not to part with the 
 note, and they promised not to negotiate it. Afterwards, it was passed to the plaintiff, who had 
 notice of all facts. In an action on the note against the indorser, held, that the plaintiffs were 
 not entitled to maintain their action. Skelding v. Warren, 15 Johns. 270. 
 
 An indorsee of a promissory note, which is made payable to bearer, may maintain an action 
 against the heirs, &c. of the maker, though the note was indorsed after the death of the maker, 
 under the act 1 R. L. 316. Parsons v. Parsons, 5 Cowen, 476. 
 
 A. was the holder of a note and passed it to B. as collateral security for the payment of a debt 
 due to the latter; and the note being deposited in a bank for collection, the latter having neg- 
 lected to give notice of the non-payment to the indorsers, held, that A. might maintain an action 
 against the bank, although it appeared he had assigned his interest in the note to third persons. 
 The plaintiff was the party injured, and he is entitled to the remedy which the law affords. 
 M'Kinster ». Bank of TJtica, 9 Wend. 46, d. 
 
 Where a note has effected the substantial purpose for which it was designed by the parties, an 
 accommodation indorser cannot object that it was not effected in the precise manner contemplated 
 at the time of its creation. Upon that principle, the oases of Powell v. Waters, 17 Johns. 176, 
 The Bank of Chenango v. Hyde, 4 Cowen, 567, and the Bank of Rutland v. Buck, 4 Wend. 66, 
 were decided. See also 2 Gall. 233; Payson v. Coolidge, 2 Wheat. 66. But where a note has 
 been diverted from its original destination, and fraudulently put in circulation by the maker or 
 his agent, the holder cannot recover upon it against an accommodation indorser, without showing 
 that he received it in good faith, in the ordinary course of trade, and paid for it a valuable con- 
 sideration. WoodhuU u. Holmes, 10 Johns. 231; Skelding v. Warren, 15 Johns. 275; Brown ». 
 Taber, 5 Wend. 566; Vallets v. Parker, 6 ib. 615. In Coddington v. Bay, 20 Johns. 637, the En- 
 glish cases upon this branch of the law are very fully and ably reviewed. In that case Judge 
 Spencer says, " I understand by the usual course of trade, not that the holder shall receive the 
 bills or notes, thus obtained as securities for antecedent debts, but that he shall take them in his 
 business, and as payment of a debt contracted at the time." Again, " all the cases cited have 
 been decided on the ground that the notes or bills were taken in the usual course of trade, and for 
 
16 b OP THE PARTIES TO ACTIONS. 
 
 I. 
 
 PLilNTIITS. 
 
 come C.'s debtor instead of B. must be proved (c) ; and it must appear 
 that A.'s debt to B. was ascertained and fixed (cZ). 
 3. When The common law confers on the grantee of the reversion of an estate an 
 interest as- action in his own name upon such implied covenants, or covenants in law, 
 g^"j* ■ as are annexed to, and which run with, the reversion : as upon the reddert^ 
 perty.'^"^"' dum, or word "demise," contained in the lease (e) (1). But at common 
 law none but parties or privigs to express covenants, as the parties or their 
 heirs or devisees (/), could sue thereon, the privily of contract being in 
 such case wanting ; and the grantee of the reversion being therefore consid- 
 ered as a mere stranger (g-). This defect was remediedby the statute 
 [ *17 ] 32 Hen. 8, c. *34, s. 1, which transfers the remedy and right of action to 
 the grantee, against the lessee or his assigns : although the grantee be not 
 named in the lease (K). The Statute extends to the grantee or surren- 
 
 (c) 4 B. and C. 163; see 8 B. and C. 402. nution in the value of his interest which may 
 
 ((/) 8 B. and C. 395. arise from the breach of covenant. See 3 Lev. 
 
 (e) 2 Lev, 206; 1 B. and C. 410; 2 D. and 130, 209; 4 Bur. 2141; Piatt on Gov. 537. 
 
 B. 670, S. C. Each reversioner will recover damages com- 
 
 (/) As to action by heirs and devisees, mensurate with his. particular interest; Holtj 
 
 post, 19 to 22. Ni. Pri. Rep. 543; 1 Taunt. 194. But the 
 
 (g-) See 3 T. E. 401 ; Piatt on Gov. 527, grantee of the reversion of part of the premi- 
 
 531; Bac. Ab. Covenant, E. Debt, C; Com, ses cannot maintain ejectment upon a oondi- 
 
 Dig. Covenant, B. 3. tiou broken, 5 Co. 55 b; 2 B. and A. 109; the 
 
 (A) T. Raym. 80; Piatt on Gov. 534. reason is, that a condition is entire aid indi- 
 
 Where there is a farther reversion , the sec- visible. 
 ond reversioner may also sue for the dimi- 
 
 a present consideration paid. Not* one of the oases is like the present, where notes or bills thus 
 passed were received in security of an antecedent debt." Judge Woodworth says, " in every 
 case it appears that the holder gave credit (o the paper, received it in the way of business, and 
 gave money or property in exchange." — " Something niust be paid in money or property, or 
 ' some subsisting debt satisfied, or some new responsibility incurred^ in consequence of the transfer 
 
 of the paper." Vielei Senator,. says, "though an indemnity for prior responsibilities may be a 
 sufficient consideration for some purposes, and between parties, &c. yet it cannot be taken as suf- 
 ficient in principle to bar the owner of his title by a fraudulent transfer." 
 
 (1) The doctrine that a covenant of warranty runs with the land^ and enures to the benefit of 
 the assignee of the covenantee, who may bring; an action in his own name against the 
 original covenantor for the breach thereof, is not questioned or denied. The only doubt upon 
 this point was, whether, when a covenantee conveys with warranty, his grantee, upon tviction, 
 could sue the original warrantor, or whether his remedy was confined to his immediate covenant 
 of indemnity. The latter opinion was expressed in Eane v. Sanger, 14 Johns. 89; but the whole 
 subject was fully reviewed and considered in Withy u. Mumford, 5 Cowen, 137, where the broad 
 doctrine that the assignee may maintain an action against the original covenantor, whether the 
 immediate conveyance was with or without warranty, was, upon a consideration and a review of 
 all the cases, fully established. Coke Litt. 384, b. 385, a. 4 Cruise's Dig. 452, 3; Cro. Eliz. 503; 
 Shep. Touch. 198, tit. Warranty, 2iMass. 460; Booth v. Starr, 1 Conn: 244; See Suydam v. Jones 
 10 Wend. 180. Wyman v. Ballard, 12 Mass. 306. Kmgv. Kerr, 5 Haw. 156. Clark v. Redman, 
 1 Blackf 381. Williams v. Breeman, 2 Dev. 483. Be Chaumont v. Forsyth, 2 Pensylv. 507. 
 Markland v. Crump, 1 Dev. and Bat. 94. Griffin v. Fairbrother, 1 Fairf. 91. M'Crady v. Bris- 
 bane, 1' N. and M. 104. Tufts v. Adams, 8 Pick, 547. Shelby v: Hearne, 6 Yerg. 512. Norman «; 
 Wells, 17 Wend. 148. Thomas v. Van Eapff, 6 Gill and Johns. 372. Clark v. Swift, 3 Metcalf, 
 390. Thompson v. Shattuck, 2 Metcalf, 615. 
 
 The assignee of such a covenant is not efiected by any equities existing between the original 
 parties; thus, were premises were conveyed subject to a mortgage, and it was agreed at the time 
 of the conveyance that the grantee should assume' the payment of the mortgage, and pay to the 
 grantor only the difference between the amount thereof and the sum agreed on as the considera- 
 tion of the conveyance, and that the covenants of warranty and of quiet enjoyment should not 
 be considered to extend to themortgage, it was A«W, that such agreement could npt be set up in 
 bar to an action brought by the assignee of the covenantee who was evicted under the mortgage. 
 Suydam v. Jones, 10 Wend. 180; 
 
IN FORM EX CONTRACTU. — ^PLAINTIFFS. ftj 
 
 tieree of the reversioa of a copyhold tenement (i) ; and to the grantee r. 
 of the reversion of part ©f the premises, as -well as to the grantee of part i'i""*™n'M. 
 of the estate of reversion (A) And it applies to the grantee of a reversion, ?• '^^®'' 
 of a lease for life as well as for years (0 ; and where a tenant for life makes MsiSfed. 
 a lease in pursuance of a leasing power the remainder-man is considered 
 to be an assignee of the reversion within the statute (m). But it does not 
 relate to covenants entered into in a conveyance in fee or gift in tail (m) ; 
 and where J. B. being seised in fee conveyed to the defendant and T. J. 
 their heirs and assigns, to the use that J. B. his heirs and assigns, might 
 have and take to his use a rent certain, to be issuing out of the premises, 
 and subject to the said rent to the use of the defendant, his heirs and as- 
 signs ; and the defendant covenanted with J. B. his heirs and assigns to 
 pay to him, his heirs and assigns, the said rent, and to build a house^ to' se- 
 cure it ; and J. B. demised the rent to the plaintiff for a long term. It was 
 held that the latter could not sue upon the covenants, for they were per- 
 sonal to J. B. and the rent was reserved out of the original estate, and 
 there was neither privity of contract nor privity of estate (o) . In general 
 in order to enable a person to sue as an assignee, he ought to come in of 
 the same estate, as t}ia.t in respect of which the covenant was made and 
 not by title paramount (p). And if a person, havingionly the equitable fee 
 in freehold or copyhold, grant a lease and then devise the equitable fee to 
 A., and A., after the death of the testator, acquire the legal estate from the 
 person in whom it was vested at the time of the lease and devise, and then 
 sell and convey the legal estate to B., the latter could not sue the lessee 
 or Ms assignees, because he takes not any legal estate from the lessor (q'). 
 
 It is 'to be remembered that the statute has no effect on covenants which 
 are collateral to and do cot run with 4'he land. Upon such 'covenants the ;[ '*1'8 '] 
 grantee of the reversion cannot maintain an action in his own name (rj). 
 
 After the grant of the reversion, the grantor cannot sue for breaches of 
 covenant subsequently, committed by the lessee or his assigns (5), but his 
 remedy for, prior breaches is not (like the remedy by distress) destroyed (f). 
 And as a chose in action is not transferable at law, the remedy for breach- 
 es of covenant, which occurred before the grant of the reversion, roust 
 necessarily be enforced ia the name of the testator ,(,«) (1). Andi^eint ac- 
 
 (0 Glover V. Cope, « Lev. -326; Carth. B. & C. 417; 2 D. & K. i670, S. C. The 
 
 205; 3 M. & Sel. 386; 1 Saund. 241; note assignee of a mere rent-charge ia not within 
 
 .{a); Piatt on Gov. 537. the statute, 5 M. & Sel. 411. A covenant 
 
 (h) 2.B. & Aid. 106; 4B. &,C.,157, 158. to insure a house within the weekly bills 
 
 (I) Co. Lit. 215,; Piatt, 635. of mortality runs with the land, g B. ,& 
 
 (m) 3 M. & Sel. 382. Aid. 1. See the judgment of the Court in 
 
 (n) Co. :Lit. 215; Cro. Eliz. 863; Flatt, that case as to what covenants run with the 
 
 635. land, 1 B. & C. 410; 9 Id. ,505; 1 Cromp. i& 
 
 (o) 5M.&Sel. 411. J. ,105. 
 
 (p) See Webb «. Russel,,3 T. K. 39,3; Piatt (s) 3 Lev. 154; 3 T. K. 394, arg. 
 
 onCov. 341; Co. Lit. 215. (f) Skin. 867. Carth 289. 1-2 iVIod.45. ,2 
 
 (q) Seymour v. Pranco, 7 Law Jouinal, Show. 133. 
 
 part2, K..B., page 18. 'Whitton o. Peaooolj, ,(u) Cro. £liz. 863. 4 M. &.Sel. 66,8 
 
 special case, June 1832, in C.P. argued by Taunt. 227. 2 Moore, 114, S. C. But for 
 
 Mr. Coote and Wightman. Sherman, At- so much of the breach as continues after 
 
 torney. Author's .MS. the assignment i the grantee may sue. iMas- 
 
 (r) 5 Co. it, Spencer's case; Co. Lit. cal's case, Mo. 242. 1 Leon. 62, S. C. 
 i2I5 b; 1 Saund. 241 a. inote 9, 5th ed.; 1 
 
 (1) Greenby v. Wiloooks, 2 Johns, il. Bickford ». .Page, :2 Mass. 455. Marston iw. 
 Hobbs, 2 Mass. 439. Chapman v. Holmes, fialst. 20. i Gku±i't;. Swift, 3 ;Metealf. 890. 
 Garrison v. Sandford, 7 Halat. 261. Demarest v. Willard, 8 Cow. 206. Backus v. M'Coy,- 
 
 VoL. I. 4 
 
18 
 
 OF THE PARTIES TO ACTIONS. 
 
 FLjUNTIITS 
 
 8. When 
 interest 
 
 crued due before a conveyance of the reversion, wiU not pass to the gran- 
 tee, but is at law as well as in equity severed fropi the inheritance (x). 
 
 The statute 32 Hen. 8, refers only to the remedies for and against the 
 assignees and grantees of reversions. The common law gives a remedy 
 by action upon a covenant real annexed to the estate, and running with it, 
 to the assignee of the assignee of such estate, against the original assignor, 
 who conveyed his whole interest in the property (1). As if a party grant 
 an estate in fee with a covenant for further assurance, and his grantee 
 grant it over to A., the latter may maintain covenant against the original 
 grantor, on the ground that a privity of estate subsists between them (^). 
 So the assignee of the original grantee may sue the original assignor upon 
 his covenant for quiet enjoyment ; whether the interest assigned be an es- 
 tate of inheritance or a chattel real only ; and whether any estate remain 
 in the covenantor or not («). And if A. demise to B. rendering rent, and 
 then A. assign the rent, the counterpart of the lease, and the benefit of 
 the covenant to C. for the remainder of the term, the latter may maintain 
 debt for the rent against B (a). 
 
 Attornment by the tenant to the grantee of the reversion is not neces- 
 sary in any of these cases to perfect the remedy of the latter, but the ten- 
 ant shall not be prejudiced by any payment of rent to the grantor before 
 he had notice of the grantee's title (6). 
 
 In the case of a lunatic, the action upon a contract made with him 
 should be brought in his name, not in the name of his committee (c"). 
 
 [ *19 ] 
 
 4thly. 
 When one 
 of seTeral 
 obligees, 
 &c. ia 
 dead. 
 
 *'When one or more of several obligees, covenantees, partners or others 
 having a joint legal interest in the contract, dies, the action must be 
 brought in the name of the survivor (2), and the executor or adminis- 
 trator of the deceased must not be joined (3) nor can he sue separately 
 
 {x) Flight V. Bently, Vice Chancellor's 
 Court, 13 May, 1836. 
 
 {y Cro. Car. 603. 3 B. & Aid. 396. 
 
 (z) Id. Cro Eliz. 373. Lewis v. Camp- 
 bell, 8 Taunt. 715. 3 Moore, 86, S. C; af- 
 firmed in error, 3 B. & Aid. 392. See fur- 
 ther, Piatt on Cot. 622, et subs. 
 
 (a) 6 B. & C. 512. 
 
 (A) 4 & 5 Ann. C. 16. s. 9, 10. 16 East, 
 99. 
 
 (c) 2 Sid. 124, 125. Ejectment must be 
 brought in the name of the lunatic, for his 
 committee is but a bailiff, and has no in- 
 terest, Adams, Ej. 2d ed. 81, cites Hutten, 
 16. Hob. 215. aWils, 130. 
 
 But the committee may, by ord|r of the 
 Court of Chancery, grant leases, see 43 
 Geo. 3, 0. 76, s. 14, and in such case the 
 remedy would be by the committee. See fur- 
 ther 6 Geo. 4, 0. 74. 9 Geo. 4, c. 78. 
 
 8 Ham. 218; Williams u. Wetherbee, 1 Aik. 233; Sprague v. Baker, 17 Mass. 588; Mitchell 
 V. Warner, 5 Conn. 497; Stewart v. Drake, 4 Halst. 139; Bartholomew v. Candee, 14 Pick. 
 171; Wheelook v. Thayer, 16 Pick. 68; Hackel v. Storer, 8 Greenl. 228. Pierce v. Johnson, 
 4 Vermt. 255. Richardson v. Dorr, 6 Vermt. 21. Davis v. Lyman, 6 Conn. 249. Clark v. 
 Swift, 3 Metoalf, 390. Thayer ii. Clemence, 22 Pick. 493. Tapleyu.Labeaume, 1 Mis. 552. Innes 
 V. Agnew, 1 Ham. 886. So an assignee of part may maintain an action pro tantoj and if the 
 assignee has warranted the title or covenanted for the quiet enjoyment of his assignee, he may 
 support an action for a breach, after the assignment, of covenants of Warranty and quiet enjoy- 
 ment, contained in the deed to himself. Kane v. Sanger, 14 Johns. 89. Bickford v. Page, 
 2 Mass. 460. See as to the authority of Kane v. Sanger, and Bickford v. Page, the case of 
 Withy V. Mumford, 5 Cow. 137; and Garlock v. Closs, 5 Cow. 143- Demarest v. Willard, 8 
 Cow. 206. 
 
 (1) Withyt). Lumford, 5Cow. 187. Demarest i;. Willard, 8 ib. 206. Ante, 16 b. note. Clarke 
 V. Swift, 3 Metcalf, 390. 
 
 (2) Vide Bernard v. Wilcox, 2 Johns. Cas. 874. 1 Dal. 250. Penn. v. Butler, 4 ib. 854. 
 Nixon J). M'Carty, 2 ib. 65, 6B, note 6 S. and and R. 86 ; Bebee v. Miller, Minor, 864. Upon 
 the death of a survivor the right of action rests in his personal representatives ; and a joinder 
 of the representatives of both obligees is a misjoinder, ib. 
 
 (3) See Smith v. Franklin, 1 Mass, 480. Walker v. MaxweHj 1 Mass. 133. Morrison 
 
IN FORM EX CONTEACTU. — PLAINTIPPS. 19 
 
 though the deceased alone might be entitled to the beneficial interest in the » 
 contract; and the executor must resort to. a court of equity to obtain l"^^^*' 
 from the survivor the testator's share of the sum recovered (d) (V) : but one of sev- 
 if the interest of the covenantees were several, the executor of one of ^^^^ "Wi- 
 them may sue, though the other be living (e). In an action at the suit of Ifd^d"' 
 a surviving partner, he may include a debt due to him in his own separate 
 right (/). In the case of a deed we have seen that it is necessary to de- 
 clare as surviving obligee, &c. (§•); and in other actions on contracts, it is 
 necessary to declare as surviving partner, noticing the deceased and his 
 death (A) (2). However, in the case of a bill of exchange indorsed in 
 blank, and not specially, to a firm, it is competent to the surviving mem- 
 bers to sue, without noticing the death of a partner, who was in the firm 
 when the bill was received (J). 
 
 In the case of a mere personal contract, or of a covenant not running' Sthly. In 
 with the land, if it were made only with one person, and he be dead, the *''* "^^ "' 
 action for the breach of it must be brought in the name of his exeputor or ad- or admin-' 
 ministrator, in whom the legal interest in such contract is vested (A;) (3). istrators. 
 But on a covenant relating to the realty, as for good title, on a deed of '**'"• ^''^ 
 conveyance, an executor cannot sue even for a breach in the life-time of 
 his testator, without showing some special damage to th.& personal estate of 
 the latter, but the action must be brought in the name of the heir or devi- 
 see (l) (4). But the executors and not the heir of a purchaser must sue 
 for breach of contract on sale of an estate in fee simple, and the consequent 
 
 (d) 1 Bast, 497; Salk. 444; Ld. Eaym. 583,584. See 1 Crom. M. andRo3. 900; 5 
 
 340; Com. Dig. Merchants, D.; Vin. Ab. Tyr.392; 3 Dowl. 495, S. C. 
 Partner, D.;2 M. &. S. 225. (i) 7 Moore, 577. As to the eflfeot of the 
 
 fc) 1 Saund. 153, n. 1; Burr. 1197; Cro. death of one of the plaintiff during the 
 
 Eliz. 729. suit, see 8 and 9 W. 3, c. 11, s. 7; Tidd, 9th 
 
 , (/) 3 T. R.433;5 T. K. 493; 6 T. K. ed. 934. 
 682; 4B. and Aid. 374. {k) 2 Hen. Bla. 310; 3 T. E. 303, 401; 
 
 (g) Ante, 15; 1 B. and P. 74. Com. Dig. Covenant, 1. 
 
 (A) 4 B. and Aid. 374; 2 Stark. 356; 2 {I) 2 Lev. 26; 1 Vent. 176, S. C; 1 M. 
 
 Saund. 121, n. 1; vide 5 Esp. Eep. 32; 2 and Sel. 355; 1 Marsh. 107; 2Taunt. 418;4 
 
 T. K. 477; Vin. Ab. Partners, D.; 7 Moore, M. and Sel. 53, 188. 
 
 V. Winn, Hardin, 480; Bebee v. Miller, Minor, 364; Brown v. King, 1 Bibb. 462, Clark v. Par. 
 ish, ib. 547. 3 Bibb. 261. Murphy v. Branch Bank, 5 Alabama, 421. 
 
 (1) 5 S. and B. 86. The administrator of a deceased partner cannot maintain an action for a 
 partnership demand, notwithstanding an adjustment of all the partnership demands between him 
 and the survivor, by which it was agreed that the proceeds of such demand should be equally 
 divided between them. Peters v. Davis, 7 Mass. 257. 
 
 (2) Callison ». Little, 2 Porter, 89. Where a writ is sued out in the name of two partners, 
 and the declaration is filed by one, as survivor, this is a sufficient showing of the death of the 
 other. Baldwin v. Stebbins, Minor, 180. Where the declaration is in the name of one as sur- 
 viving partner, it necessarily implies the death of the other partner, although not averred. Pat- 
 terson V. Chalmers, 7 B. Monroe, 595. 
 
 In Vandenheuvei 5). Storrs, 3 Conn. 203, it was held that the survivor of several persons hav- 
 ing a joint interest may sue in an action on simple contract, without describing himself as sur- 
 vivor. In such case, however, the cause of action must be correctly set forth, that the defendant 
 may know what he is called to answer. See Holmes v. D'Camp, 1 Johns. 34; Moore o. Feu- 
 wick, Gilm. 214; Pickens v. Garnett, 2 Bay's S.O. R. 543; Mott v. Petrie, 15 Wend. 319. 
 
 (3) Covenants for land, broken in the covenantee's life-time, go to the executor : where broken 
 after his death, to the heir. South w. Holly, 8 Monro, 94. Kice v. Spotswood, 6 Monro, 40; 
 Grist «. Hodges, 3 Dev. 200; Abney d. Brownlee, 2 Bibb. 170; Van Bensselaer t». Platner, 2 
 Johns. Cas. 17. 
 
 (4) See Paul v. V^itman, 3 W^tts and Serg. 407. And tlje heir» or devjsees may bring the 
 iiction jointly, ib, 
 
19a OF THE PARTIES TO ACTIONS. 
 
 * loss of interest and expense (m). For the breach of the implied prom- 
 I^&cra-^ is© of an attorney to investigate the title to a freehold estate, the execu- 
 tors, heirs, tor of the purchaser cannot sue, without stating that the testator sustained 
 &"• some actual damage (to); and an executor cannot sue for the breach of a 
 
 promise which impliedly occasions only a personal suffering to the testar 
 [ *20 ] tor, *and is not shown to have occasioned a special damage to his estate; 
 as a breach of promise of marriage (o) (1). And the 3 & 4 W. 4, c. 
 42, sect. 2, which only enables an executor or administrator to sue for a 
 tort affecting the personal or real estate of the deceased, does not appear 
 to alter the law in that respect. Where a personal contract was made 
 jointly with several persons, then during the life of the survivor of them 
 the action must be brought in his name (jo)^ and upon his death his executor 
 or administrator alone can sue, and the personal representatives of the 
 partner who first died cannot be joined (9) (2). If there be several exe- 
 cutors or administrators they ought all to join, though some be under the 
 age of seventeen years, or have not proved the will (r); for the grant of a 
 probate to one enures to the benefit of all(j5). And it seems, that even 
 ";', the refusal of one of the executors before the ordinary to accept the trust, 
 does not render it necessary to join him as plaintiff (<). But his formal 
 disclaimer and renunciation in the Ecclesiastical Court on citation, would 
 probably entitle the other executors to sue without him (m) (3). 
 
 If, however, only one of several executors or administrators bring an 
 iaction either of debt or assumpsit, or in tort, it is settled that the defend- 
 ant can only take advantage of the nonjoinder of the executor or co-ad- 
 ministrator, by pleading in abatement, after oyer of the probate or letters 
 of administration, that the other executor or administrator therein mention- 
 ed is aliv6 and not joined in the action (pc) (4.) This, it is observable, is a 
 
 (m) 4 M. ftud Soott, 417. 10 Bing. 51. S. C. eoutor has proved he may sue alone; though 
 
 (n) 4 Moore, 532. 2 B. and B. 102, S. C. the others have not renounced. 
 
 Sed qiUBre, whether damage, viz. deteriora- (s) Per Bayley, J., 3 B. and Aid. 363. . 
 
 tion in value of saleable interest, would not (i) 9 Kep. 37 a. 1 Saund. 291 h. n. 4.2 
 
 he inferred. You. and Jer. 75. 
 
 (0) 2 M. and Sel. 408. (u) 4 T. B. 565, per BuUer, J. See 2 Tou. 
 (p) Anti, 19, and Jer. 77. See as to trustees, ant^ 11. If 
 (q) Id. a debtor make his creditor and another his 
 (r) Bro. Executors, 83. Telv. 130. 1 Salk. executors, and the creditor neither prove the 
 
 3. 1 Saund. 291 h. n. 4. 4 T. K. 565. 2 Bing. will nor act as executor, he may sue the other 
 
 178. Laking ». Watson, 2 Dowl. 633. 4 T^. for the debt, although he has not renounced, 
 
 839, S. C. 2 Tou. and Jer. 75. Effect of the 3 T. R. 557. 
 
 rule in equity, id. In Davies ». Williams, 1 (a;) 1 Saund. 291 i. k. Miter in the case 
 
 Simons' Bep. 5, it was said that the rule at of assignees of a bankrupt, post, 20,21. 
 law as well as in equity was, if only one ex- 
 
 I II I 1 . 
 
 (1) lattimore v. Simons, 13 S. and B. 183. 
 
 (2) Ante 19, note. 
 
 (3) Bodlie V. Hulise, 5 Wend. 313. The proper practice, where one renounces, is to prose- 
 cute in the name of all the executors named in the will, if living, and on summons to those who 
 will not join, there will be a judgment of severance; and then the others may proceed and recover 
 in their own names. lb. 
 
 (4) Packer v. Wilson, 15 Wend. 343. Gordon v. Goodwin, 2 Nott & M'C. 70. Bodle 
 «. Hulse, 5 Wendell, 818. Trustees constitute in law but one person and must necessa- 
 rily join in the bringing of an action. Brinkerhoff v. Wemple, 1 Wendell, 470. In 
 Peinnsylvanla, it is provided by the 7th section of the act of 28th March, 1818, (Purd. 
 Kg. 27) '" that no suit, &o. by executors, administrators, trustees, or assignees, shall 
 abate, or the judgment be reversed or set aside, for or by reason of all or any of such 
 executors, administrators, trustees, or assignees, being dead, either at the time of the suit 
 trou^l, or during the pendency thereof, or by reason of all or any of them being su- 
 perseded or removed; or the letters testamentary, or of admmistration being repealwl or 
 
IN POEM BX CONTBiiCTO. — PLAINTIFFS. 20 
 
 material distinction bet'ween the effect of the nonJQinder of a party when i. 
 he sues in autre droit, and yahm. in his own right ; in the latter case we ^i'*"'™^'. 
 have seenithat the amission would be a ground of nonsuit (jf). An execu- fdrf^S 
 tor may sue as such upon a contract made with him in that character, &o.' 
 as for goods sold by him as executor,, or for money lent as such, and in 
 other cases when the sum to be recovered would be assets (z^ ; and in 
 these cases the cause of action should be stated to have accrued, and 
 the promise to have been made to them "as executors" (a). And a 
 party may sue as executors for money had and received to his use in 
 that character, although he was guilty of a devastavit, in paying the 
 money used for to the defendant (6). But executors who contract for the 
 sale of the testator's *effects,or make any other agreement in their rep- [ *21 J 
 resentative character, are not bound to declare in that capacity, but may 
 sueintheir individual right ; and in such case it is sufficient to join as 
 plaintiffs such only of the executors as interfered, and were actual parties 
 to the contract with the defendant (c). An executor cannot sue as such 
 upon a penal statute (d). In the case of an aggregate corporation the suc- 
 cessors may sue on a contract with, or cause of action vested in their 
 predecessors (e). 
 
 Before the 3 & 4 W. 4, c. 42, sect. 31, executors and administrators 
 who sued at law unsuccessfully for the breach of a supposed contract with 
 the deceased, were not liable to pay costs, de bonis propriis which immu- 
 nity encouraged many indiscreet and hasty actions ; but now executors and 
 administrators are as much liable to pay costs as other unsuccessful plain- 
 tiffs, unless the judge who tries the cause certifies so as to protect them 
 from costs. So that now a personal representative must fully inquire 
 into the sustainability of an action before it is commenced (/). ' 
 
 The right of th^ grantee of a reversion to sue upon a covenant relating 
 to and running with the estate, has been already noticed (§■). In the case 
 of "the death of the covenantee seised in fee, the executor may sue at 
 common law upon such covenants, though they affected the realty, as were 
 broken in the testator's life-time and actually diminished his personal es- 
 
 (y) Jinle, 13. Dig. Administration, B. 15 ; 2 Hen. Bla. 311. 
 
 (z) 6 East, 405; 3 B. & Aid. 360; 2 Cliit. (e) Com. Dig. Biens, C; Bao. Ab. Cor- 
 
 Eep. 325; 6 Taunt. 458. porations, E. 4; 2 Bla. Com. 430; 3 Burr, 
 
 (a) Id. 1886. 
 
 (i) 2B. & 0.149. (/) 2 Dowl. Eep. 807; 3 Dowl. 465; 1 
 
 (c) 2 Bing. 177; 9 Moore, 340, S. C; see Gale, 67. 
 
 ante, 12. (g) Ante, 16, IT. 
 
 (d) Carth. 361 ; Cro Eliz. 766 ; Com. 
 
 annulled; but the same may be proceeded in to final judgment, by their legal represen- 
 tatives, upon making the proper su^estions upon the record which the case may require j 
 nor Shall any suit or action abate, or the judgment thereon be reversed or set aside, by 
 omission to name on the record any one of the party or parties; but but in such case, the 
 names pt the parties so omitted may, upon application to the court, be added to the re- 
 cord; and the cause shall thereupon be proceeded in to trial and final judgment, with the same 
 efieot, as if such name had been originally inserted in the record." The construction given to 
 this section confines the substitution of parties to the oases of suits by executors, administrators; 
 trustees, or assignees; and therefore, where goods were sold to a defendant by a house in England, 
 trading under the name of Thomas Wilson, but consisting of Thomas Wilson, W. Eowlett, and G. 
 Shaw, and an action was brought in the name of Wilson alone , to recover the price, the court 
 refused an application to add the names of Eowlett and Shaw upon the record. Wilson v. Wal- 
 lace, 8 Serg. & Bawie, 63. 
 
21 OP THE PARTIES TO ACTIONS. 
 
 I. tate (A). Bat it is only by virtue of the statute 32 Hen. 8, c. 32 (1), that 
 PLAINTIFFS a,n executor can sue for arrears of rent which accrued to his testator, who 
 5. Exeou-^ ^g^g seised in fee or for life (i). With regard to such breaches of real 
 &o.' covenants as occurred in the life-time of the ancestor, but occasioned hira no 
 
 actual damage, or after his death, the action should be brought in the name 
 of his heir, or his devisee, who, in this respect, is invested with the same 
 rights as would have devolved on the heir (h) (2). The heir or devisee 
 need not be expressly named in the covenant in order to entitle him to sue : 
 the slightest indication of an intention that the covenant should not deter- 
 mine with the death of the testator would leave the remedy to the *repre- 
 sentative of his realty (m). The executor of a termor (although he has 
 demised for a longer term than his own) may support an action on the cove- 
 nant for the stipulated rent, due since the death of his testator, on the 
 privity of contract, though not on any supposed privity of estate (n). 
 
 If an executrix or administratrix marry, she and her husband should 
 join for the breach of any personal contract made with the deceased (o) ; 
 but if she sue alone, the defendant cannot avail himself of the nonjoinder 
 except by plea in abatement (^) ; and when a bond or other contract is 
 made to husband and wife as executrix, he may sue alone (jq). 
 6thiy. In When an executor dies after he has proved the will, his executor, or the 
 bankrupt-^ executor of such executor is the party to sue on the contract made with 
 cy. the original testator, provided the money to be recovered would be the as- 
 
 sets of the representative of the original testator himself ; and the same 
 rule applies in the case of the death of an administrator of the intestate (r). 
 
 (ft) ^nte, 19. Except in the case of joint- on Cot. 517, 518. It is -melX observed by Mr. 
 
 tenancy of the testator with a person who sur- Piatt, that perhaps the best way of putting it 
 
 vives. Bao. Ab. Debt, C. Heir^E.; Vin. Ab. is, that the covenant will in all these oases 
 
 Covenant, K. 2, pi. 5; ante, 19. run with the land in -favor of the heir, unless 
 
 (f) The 11 Geo. 2, o. 19, s. iS, gives an exe- an evident intention be manifested to confine 
 
 eutor of a tenant for life the (Hght to sue for it to the covenantee. As to warranty, see* Co. 
 
 a proportion of the rent to the death of the Lit. 384 b. 
 
 testator, where he dies befpire the rent was (n) Baker v. Gosling, 1 Bing. N. C. 19. 
 
 actually due, unless the tenant held under a 284. 2 Chitty's Kep. 461. 2 Chit PI. 565 a. 
 
 lease granted pursuant to a leasing power, in 5th ed. 
 
 which case the whole rent goes to the remain- (o) Com. Dig. Baron and Feme, Y^ 
 
 der-man, 1 Chit. Col. Stat. 673, note (i); Ex {p) 3 T. B. 631. 1 Saund. 291 g. 
 
 parte Smyth, 1 Swanst. 837; 8 Ves. 311; 2 (5) 4 T. R. 616. 1 Salk. 117. 
 
 Ves. & B. 334. 1 P. Wms. 177. (r) See Toller, 1st edit. 41, 25. What are 
 
 (/c) 1 M. & Sel. 365. i Id. 53. 5 Taunt. such assets, and when representatives of first 
 
 418. 4 M. & Sel. 188, S. C. 1 B. C. 410. see representative should sue. 1 Vern. 473; Telv. 
 
 12 East, 464. Piatt on C. 513,519. 83. Cro. Jac. 4. Moor, 680, S. C, 
 
 (m) 2 Lev. 92. 2 Saund. 367 a, 371. Piatt 
 
 (1) In force in Pennsylvania, except the 2d section. Kobert's Dig. 254. 8 Binn. 260. Bylaws 
 of New York, se-ss. 36. c. 63. s. 18. 1 K. L. 439, executors or administrators are authorized to 
 sue an action of debt, or to distrain, for arrearages of rent in the life-time of their testator or 
 intestate. (1 R. S. 747.) Independent of these provisions, an 'executor or administrator may 
 have an action of covenant, on an express covenant in the lease, for the payment of rent iu 
 arrear at the death of the testator or intestate. Van Rensselaer v. Platner, 2 J. Cas. 17. As to 
 the general rule that the personal representative only shall have an action on a covenant broken 
 in the life-time of his testator or intestate, see Com. Dig. Administration (fi.H), Covenant, 
 (B. 1). Hamilton v. Willson, 4 Johns. 72. 
 
 (2) 12 S. & B. 139. But in Pennsylvania an action for non-performance of an agreement 
 under seal for the conveyance of land, is to be brought by the personal representative of the cove- 
 nantor, and not by his heir. Watson v. Blaine, 12 S. & R. 131. 
 
IN POEM EX CONTEACTU.— PLAINTIFFS. 22 
 
 I. 
 
 If the money to be recovered "would be assets of the original testator, then ^i'*"'^'''™ 
 in case of the death of his first representative, administration de bonis non ^- Bank- 
 must be obtained, and the defendant sued accordingly ; and, therefore, ^P*''^" 
 where A. died intestate, and B. took out administration, and died before 
 the effects were fully administered, and C. took out administration de bonis 
 non and sued D. as acceptor of the bill of exchange indorsed to the ad- 
 ministratrix in payment of a debt due to the intestate ; it was held that the 
 action was well brought by the administrator de bonis non (s) . And if a 
 promise be made to the personal representative of an intestate, the admin- 
 istrator de bonis non may sue on it in his character of administrator, and 
 may join such a cause of action with counts upon promises made to the in- 
 testate (if). Where an infant is sole executor, probate is not to be grant- 
 ed to him till he attain the age of twenty-one years, and in the interim ad- 
 ministration with the will annexed is to be granted to another person (u). 
 
 In the case of bankruptcy the legal rights of the bankrupt arising from 
 contracts made with him, and in the performance whereof the bankrupt is 
 benefically interested, are, by the express provisions of the Bankrupt Act, 
 transferred to and vested in his assignees (1), which enacts, that the com- 
 missioners shall assign all debts due or to be due to the bankrupt, *and such [ *23 1 
 assignment shall vest the property, right and interest in such debts in such 
 assignees as fully as if the assurance whereby they are secured had been 
 made to such assignees ; and after such assignment, neither the bankrupt, 
 nor any person claiming through or under him, shall have power to recover 
 the same, nor to make any release or discharge thereof, neither shall the 
 same be attached as the debt of a bankrupt by any person, according to 
 the custom of the city of London or otherwise, but such assignees shall 
 have like remedy to recover the same, in their own names, as the bankrupt 
 himself might have had if he had not been adjudged bankrupt (y). There 
 are cases, however, in which the bankrupt may sue as trustee for his cred- 
 itors (w'). 
 
 The right of action is vested in all the assignees jointly, and the non- 
 joinder of one of them as a plaintiff in an action was considered a ground 
 of nonsuit (re). But in the case deciding that point, the contract declared 
 on was exclusively made with the assignees, and therefore they did not al- 
 together sue in autre droit; and, in general, when assignees sue on a con- 
 
 (s) 2-D. & R. 271. 1 B. & C. ISOj S. C. 1 and for injury to bankrupt's personal, 8 Bing. 
 
 B. & B. 410. Toller, 84. 358. 
 
 (t) 7 T, R. 182. (mj) 1 Bar. &. Adol. 459. 
 
 («) 38Geo. 3,0. 87. see Toiler, 367. Wood's (a:) Slengrove v. Hunt, 2 Stark. R. 424. 1 
 
 Inst. 14. 3 Burr. 1802. Chit. R. 71; but the contract declared on was 
 
 (d) 6 Geo. 4, c. 16, s. 63. The consent of made exclusively with the assignee, and there- 
 
 the creditors to the assignees suing at law is fore they did not sue merely in a representative 
 
 not necessary, vide sect. 88. 2 Y. & J. 475. character, see observations in Alivon v. Furni- 
 
 As to right of assignees to sue for unliquidated val, 1 Cr. M. & R. 285, 296. 
 damages, see 2 Bar. & Adol. 727. 9 Bing. 33. 
 
 (1) In the case of assignees appointed under the bankrupt law of a foreign country, the suit 
 must be in the name of the bankrupt, and not of the foreign assignees. _ Bird r. Caritat, 2 Johns. 
 842. So the assignees under the insolrent law of another state must, in the state of New York, 
 sue in the name of the insolvent. Raymond t. Johnson, 11 Johns. 48. 
 
23 Of THE PAB'HES TO ACTIONS. 
 
 1- tract with the bankrupt, there seems no reason why, if two out of three be 
 piAiNHFFs plaintiffs, the defendant should not be required (if he will set up the ob- 
 6. Bank- jection) to plead the nonjoinder of the third in abatement (j*). 
 '"ptoy- Where an action has been commenced by the bankrupt before the bank- 
 
 ruptcy, the defendant may defeat the action by specially pleading the 
 bankruptcy and assignment, and the assignees will be compelled to pro- 
 ceed de novo in their own names (jzy. 
 
 Where one of several assignees has been removed by order of the chan- 
 cellor, such order, unless it has been followed up by a re^assignment or re- 
 lease from the removed assignees to the remaining assignee, or by a new 
 assignment by the Commissioners, does not operate to divest the legal in- 
 terest of the removed assignee, and he is therefore still a necessary party 
 to an action (a) (1). When a fresh assignment to new assignees has been 
 ordered, it is enacted by the 6 Geo. 4, (6) that the debts land ipersonal es- 
 tate of the bankrupt shall be thereby vested in the new assignees, and that 
 [ *24 J it shall be lawful for them to sue for the *same, and to discharge any action 
 Or suit and release debts as effectually as ithe former assignees might have 
 done, and that the new conveyance shall be valid without any conveyance 
 from any former assignee. A new assignee may sue upon ia judgment reco- 
 vered by a former assignee where such judgment was recovered, as well 
 for damages sustained by reason of injuries committed by the defendant 
 against the bankrupt before his bankruptcy, as agaiinst ;the assignee as such 
 after the bankruptcy (c). By the 67th sect, of the 6 Geo. 4, it is provid- 
 ed that " whenever an assignee shall die, or a new assignee or assignees 
 ■shall be chosen, no action at law or suit in equity : shall be thereby .abated ; 
 but the Court in which any action or suit is depending may, upon the sug- 
 gestion Of such death or removal and new choice, allow the name of the 
 surviving or new assignee to be substituted in the place of the former, and 
 such action or suit shall be prosecuted in the name or names of the said 
 surviving or new assignee or assignees, in the same manner as if he or 
 they had originally commenced the same." And under the 6 G. 4, c. 16, 
 s. !67, ithas been decided, that a second assignee, who continues by sug- 
 gestion on the record, a suit commenced by his pnedecessor, may recover 
 a penalty as well as his assignee (d). • 
 
 Before assignees have been appointed, the provisional assignee (e) may 
 sue ; and when assumpsit was brought in the 'name of ithe provisiomail assig- 
 nee, it was held, that the fact of the bankrupt's estate having been assigned 
 by the provisional assignee to the new assignees, between the time of issu- 
 
 (j), quare if it ouglit not to be pleaded in occurs after judgment, the action does not 
 
 abatement, as in case of nonjoinder of a co- abate, and the assignees may proceed therewith 
 
 executor see argument and judgment in AliT- to execution, &c. See Xidd, 9th edit. 1116, 
 
 on T. Furnival, 1 Cr. M. & Ros. 290, 296. 1116. 
 
 (2) 15 East, 622. 4 B. & C. 920. That (a) 5 Bast. 407. 6 Moor, 599. IChit. K?p. 
 
 this defence, if it arise after the commence- 71. 
 
 ment of the action, must be specially pleaded, (d) Section 66. 
 
 and cannot be given in evidence under the gen- (c) 10 East, 61. 
 
 " eral issue, see 4 B. & Aid. 845. 4 B. & C. (rf) Bates v, SturgeSS, 7 Bingh. 585. 
 
 390. Where the bankruptcy of the plaintiff (e) 6 Geo. 4, o, 16, 8.47. 
 
 (1) Vide Van Yalkenburg y. Elmendotf, 13 Johns. Slil. 
 
IN FORM EX CONTRACTU. — PLAINTIFFS. 24 
 
 ing the latitat and the delivery of the declaration, was no ground of nonsuit i- 
 upon a plea of non-assumpsit (/). plaiktipm 
 
 When one of several partners becomes bankrupt, the action must be in ^- Bank- 
 the name of the solvent partner and the assignee of the bankrupt (§•) (1), '^"P'°y* 
 but the Bankrupt Act (A) provides " that the Chancellor, upon petitions, 
 may authorize the assignees to use the name of the solvent partner without 
 his consent, provided that such partner, if no benefit be claimed by him by 
 virtue of the proceedings, shall be indemnified against costs, and upon pe- 
 tition the Chancellor may order that he shall receive his share of the pro- 
 ceeds of action." 
 
 The assignees of two partners, under separate commissions against each, 
 may jointly sue for and recover a debt which was due to both of the part- 
 ners ; but they cannot recover in the same action a joint debt due to both, 
 and separate debts due to each of the partners (i). When there are seve- 
 ral sets of assignees under separate commissions against partners, they 
 may join in suing for a debt due to all the partners, but in such case the 
 declaration should state what the several titles and interests of the plain- 
 tiffs are ; and if they sue, describing *themselves generally as assignees of r "25 l 
 the bankrupts, it will be a fatal variance (A); but where the plaintiffs sued 
 " as assignees of A. and B. and also as assignees of C." for a joint demand 
 due to the three bankrupts, the declaration was held sufficient, on a mo- 
 tion in arrest of judgment after verdict, since there was nothing upon the 
 record to show that the plaintiffs did not claim under a joint commission 
 against all, or under separate commissions against each of the bankrupts, 
 in either of which cases the action is maintainable Q). 
 
 Where there is a joint commission against two partners, the assignees 
 may recover in the same action debts due to the partners jointly, and also 
 debts due to them separately Qm') ; but when the plaintiffs sued as assignees 
 under a joint commission against two partners, and it appeared that only 
 one had in fact committed an act of bankruptcy, it was held, the plaintiffs 
 were not entitled to recover in respect of the interest of the partner who 
 had become a bankrupt (w). The assignees under a joint commission 
 against two partners in an action brought to recover a debt due to one of 
 them, may, and indeed ought, to describe themselves in the declaration as 
 assignees of such partner alone (o). 
 
 When a contract is made with the assignees after the bankruptcy, it is 
 
 • not necessary that they should sue thereon, in the character of assignees (p") ; 
 
 though, where the sum to be recovered would belong to the estate, they 
 
 may sue as assignees, as where they have lent or paid money in that char- 
 
 (/) 4 B. and AM. 345. Quare, if it had (») 3 T. E. 433. 
 
 been specially pleaded. It has been doubted (fc) 8 Taunt. 134. 2 Moore, 3, S. C. 
 
 whether assignees can sue for a tort commit- (i) 3 T. E. 779. 
 
 ted against the estate of the provisional as- (m) 4 Bingh. 115. 
 
 signee, 6 Taunt. 358. Eden, 2d edit. 337. (ra) 8 Taunt. 200. 2 Moore, 128, S. C. 
 
 (g) 10 East, 418. 8 T. E. 140. 12 Mod. (o) 2 Stark. E. 17. 3 Campb. 399. 15 East, 
 446. 435. 
 
 (A) 6 Geo. 4, o. 16, s. 89. {p) Cowp. 569.' 1 Esp. N. P. C. 342. 
 
 (1) Per Kent, Murray v. Murray, 5 J. Ch. 703. Willink v. Kenwick, 23 Wendell, 6?. 
 
 Vol. I. 6 
 
25 OP THE PAETIB9 TO ACTIONS. 
 
 MiAISTlFM 
 
 6. Bank- 
 
 I- acter (9) ; but they cannot proceed ia the same action both in their own 
 
 "'*""" right and as assignees (/) (1). 
 
 There are some cases in which, notwithstanding the bankruptcy, an ac- 
 rupT^'^' tion may be brought in the name of the bankrvpt himself. Thus, where 
 the bankrupt, prior to his bankruptcy, has assigned over the beneficial in- 
 terest in a chose in action to a third person, the action must be brought in 
 the name of the bankrupt, and not of the assignees (s) ; for mere trust es- 
 tates and interests do not pass by the assignment, but only property in 
 which the bankrupt has an equitable or beneficial as well as legal title, and 
 which may be made available towards the payment of his debts (<) ; but if 
 the bankrupt retained any beneficial interest, though he had parted with 
 the rest, it seems the assignees should sue (u). 
 
 The bankrupt is also, in several instances, allowed to sue in his own 
 name in respect of property acquired and contracts made by him after the 
 bankruptcy and before he has obtained his certificate ; for although the as- 
 r *26 ] signment *gives to the assignees all property which may accrue in any way 
 to the bankrupt before he obtains his certificate (x), it has been determined 
 in many cases that such property does not vest ab'soluLely in the assignees, 
 although they have a right to claim it ; but if they forbear from making any 
 claim, the bankrupt has a right against all other persons, and may maintain 
 actions accordingly (?/). It has also been held, that where a third person 
 has held out the bankrupt to the world as a party capable of doing a partic- 
 ular act which would confer a right of action upon another, as where he has 
 made a promissory note payable to the bankrupt or his order after the bank- 
 ruptcy, he will be estopped from setting up the bankruptcy as an answer to 
 an action brought by a party claiming under the bankrupt (z). But it ap- 
 pears to be fully settled that a bankrupt is incapable of retaining property 
 against his assignees (a); and that, when the dispute is between the bank- 
 rupt and a third party, their intervention will at once annihilate all right on 
 the pai't of the former, such right being entirely conditional upon the non- 
 interference of the assignees (6). It has even been held(c), that if the 
 assignees enter into an express contract with the bankrupt to remunerate 
 him for his work and labor performed in their behalf, he may maintain an 
 action against them upon such contract, but the gpiindness of this doctrine 
 may reasonably be doubted (rf). 
 
 (5) 2 Chit. Eep. 325. 5 M. and Sel. 294. by the bankrupt would be sufficient to afford 
 
 So as to executor, 3 B. and Aid. 360. a defense, see 3 Moore, 612; and it seems a 
 
 (r) 5 M. and Sel. 297. bankrupt cannot sue as to property acquired 
 
 (s) IT. R. 619. 3 B. and P. 40. 8 B. and before the bankruptcy, though the assignees 
 
 Aid. 697. ante, 16. do not interfere, 1 C. and P. 147. 
 
 (/) Ibid, and see Eden's B. L. 244, 2d (z) 2 B. and C. 293. 2 B. and P. 48. 
 
 edit. 7 East, 63. (a) Cowp. 570. 3 B. and Aid. 225. 3 B. 
 
 (a) Id. and P. 665. 
 
 (x) 6 Geo. 4, c. 16, s. 63, 64. (6) 7 East, 53. 1 B. and B. 282. 
 
 (V) 2 B. and C. 293. 2 Stra. 1207. 7 T. R. (c) 4 Taunt. 754. 
 
 391. 2 B. and P. 44. Semble, the interference (d) See 3 B. and Aid. 232. 4 Taunt. 759. 
 and claim of the assignees after action brought 
 
 (1) Upon the death of a sole assignee under the late bankrupt law of the United States, the 
 right of action for a debt due to the bankrupt, vested iu the executor of the assignee. Richards 
 V. The Maryland Insurance Company, 8 Cranch. 84. 
 
IN FORM EX CONTEACTU. — PLAINTIFFS. 2C 
 
 When all the creditors of the bankrupt, -who have proved under the » 
 commission, have been paid in full, the bankrupt is entitled to sue for and p'^r'""* 
 recover the remainder of the debts due to him (e). riptoy. 
 
 In the case of insolvency, the Insolvent Debtors' Act directs that the '^'^y. In 
 prisoner shall, at the time of petitioning for relief, assign all the estate and an^^wZ-"' 
 effects he is then possessed of, and all future effects which may come to vint debtor, 
 him, before he shall become entitled to his discharge, to the provisional 
 assignee of the Court (/). And it is enacted (g-), " That it shall be law- 
 ful for the provisional assignee to sue in his own name (1), if the Court 
 shall so order, for the recovering, obtaining, and enforcing, of any estate, 
 debts, effects, or rights, of any such prisoner : and that all the real and 
 personal estate, money, and effects, vested in or possessad by such pro- 
 visional assignee, by virtue of such conveyances and assignments so to be 
 made by such prisoners shall not remain in him, if he shall resign or be 
 removed . from his office, nor *in his heirs, executors, or administrators, in [ '27 ] 
 case of his death, but shall go and be vested in his successor in office." 
 It has been held on the provisions of former insolvent acts, the enact- 
 ments of which were in this respect of nearly a similar description to 
 those above noticed, that the provisional assignee may proceed in eject- 
 ment for the recovery of property assigned to him, without applying for 
 the leave of the Insolvent debtor's Court ; that it was not necessary to 
 prove upon the trial that such Court had authorized the proceedings (Ji) ; 
 and that the Court in which the action was brought would not, at the in- 
 stance of a defendant, interfere to stay the proceedings in such an action, 
 on the ground of no such authority having been obtained (i). By a sub- 
 sequent section (Jc), the Insolvent Court is empowered at any time, after 
 the filing of the prisoner's petition, to appoint assignees for the purposes 
 of the act, and, immediately upon such assignee accepting the office, the 
 estate and effects of the prisoner vested in the provisional assignee, are to 
 be assigned by the provisional assignee to the assignees so appointed. 
 And it is declared, that, after such assignment, " All the estate and effects 
 of the prisoner shall be, to all intents and purposes, as effectually and 
 legally vested in such assignee or assignees as if the said conveyance and 
 assignment had been made by such prisoner to him or them : Provided 
 nevertheless, that no act done under or by virtue of such first conveyance 
 and assignment shall be thereby rendered void or defeated, but shall 
 remain as valid as if nro such relation had taken place." And it is after- 
 wards enacted (/), " That it shall be lawful for the assignee or assignees 
 of such prisoner, and such assignee or assignees is and are thereby em- 
 
 (e) 6 Geo. 4, o. 16, s. 133. (i) 3 Bing. 370. S. P. Casborne t. Bar- 
 
 (/) 7 Geo. 4, c. 57, s. 11, continued and sham, in Vice Chancellor's Coart, 2nd July, 
 
 amended by 1 Wm. 4, o. 38. 1835. 
 
 (g) 7 Geo. 4, 0. 57, s. 16. (k) Sect. 19. 
 
 (Ji) 3 Bing. 203. 10 Moore, 7, S. C. (J.) Sect. 24. 
 
 (1) In Pennsylvania, by the 4th sect, of the act of 25th of March, 1814, (Pard. Dig. 278,) 
 the trustee or trustees of an insolvent debtor, '* shall be capable in his or their own names to 
 sue for and recover any property or debts belonging to such debtor at the time of his or their 
 appointment." See Cooper v. Henderson, 6 Binn. 189, Kennedy v. Ferris, 5 Serg. & Eawle, 
 S94. Teetor v. Bobinson, 7 Serg. & Eawle, 182. Stoever v. Stoever, 9 Serg. and Bawle, 434. 
 See Winchester t. The Union Bank of Maryland, 2 Harr. & Gill, 72, 79. 
 
27 OF THE PARTIES TO ACTIONS. 
 
 I- powered to sue from time to time, as there may be occasion, in his or 
 r^*^" their own name or names, for the recovering, obtaining, and enforcing of 
 Tenqr!' " any estate, effects, or rights of such prisoner." It is also provided (m), 
 that upon the death or removal of assignees, or the appointment of new 
 assignees, no action or suit shall be thereby abated, but that the Court in 
 which such action or suit is depending, may, upon the suggestion of such 
 death or removal and new appointment, allow the names of the new as- 
 signees to be substituted in the place of the former ; and that such action 
 or suit shall be prosecuted in the names of the surviving or new assignees 
 in the same manner as if it had been originally commenced by them. There 
 is no clause rendering it necessary for the assignees to apply to the credi- 
 tors, or to the Insolvent Court, for authority to commence an action at 
 law. 
 
 Prom the above provisions it will be seen, that many of the decisions 
 [ •28 ] relative to the actions by the assignees of a bankrupt (») , will be *appli- 
 cable to the case of actions by the assignees of an insolvent debtor. 
 
 It has been determined, upon the 11th and 19th sections of the above 
 mentioned act, that the death of an insolvent after the assignment to the 
 provisional assignee, but before the assignment to the assignee, in chief, 
 does not affect the. validity of the latter assignment, but that all the rights 
 of the provisional assignee pass to the assignee in chief (o). 
 
 When an action was brought by a person who had assigned his prop- 
 erty under an insolvent act, for a debt due to him before his assignment, 
 the assignee refusing to sue, the court have refused to interfere in a sum- 
 mary manner to stay the proceedings (jp). And it appears to be consid- 
 ered that an insolvent debtor, in the absence of any claim by his assignees, 
 possesses a similar right to that possessed by a bankrupt against third 
 persons in respect to property and contracts which his assignees might 
 claim the benefit of, if they chose to interfere (jq). 
 
 The assignees of a person discharged under the hordUs Act are also 
 authorised to sue for the recovery of the estate and effects of the party 
 discharged (r). 
 
 8tWy. In fjje effect of marriage, at least in courts of law, is to deprive fhe wife 
 marrfage! of all separate legal existence, her husband and herself being in law but 
 one person (s) (1), though in the Ecclesiastical Courts a wife may sue alone 
 for a legacy, <fec. (<). It is therefore a general rule, that she cannot, dur- 
 ing the marriage, maintain an action without her -husband ; either upon 
 contracts made by her before or after the marriage (w) although they may 
 
 (m) Sect. 26. ' («) Lit. sect. 28; Bao. Abr. Baron and 
 
 (n) See ante, 21 to 26. Feme, M. 
 
 (o) 4 Bing. 392. (0 Norris ii. Hemingway, 1 Hagg. R. 4; 
 
 (p) 6 Taunt 123. 1 Mareh, 487, S. C. 2 Add. R. 151 ; Capel v. Roberts, 3 Hagg. Eoo. 
 
 See 3 Campb. 18, 236. ' Rep. 161, in note; 2 Chitty's Gen. Prac. 467. 
 
 (2) 4 B. & C. 419, 420; 1 C. & P. 146, 147. (u) swpra, note (s) ; 4 T. R. 361 ; 2 B. & 
 
 (r) 32 Geo. 2 c. 28, s. 12, s. 17, and other P. 93. 
 statutes. See Tidd, 9th edit. 875. 
 
 (1) The legality of a marriage may be tried in a personal action in FennaylTania, (not brongbt 
 for crim. con.) Hantz t. Sea]y> 6 Binn. 405. Vide Fenton v. Reed, 4 Johns. 62. Newboryport 
 T. Boothbay, 9 Mass. 414. 
 
m FORM EX CONTRACTU. — PLAINTIFFS. 28 
 
 be living apart under the provisions of a formal deed of separation (x) ; or i- 
 By virtue of a^ divorce a mensa et thora (1) for adultery (?/) ; or he may have ^^™'^°'^'' 
 left the country and deserted her (s) (2). The exceptions are in the instance ^j^*^^*"^' 
 of a divorce a vinculo matrimonii (a), or where the- husband is dead in 
 law (3) by reason of his transportation under a judicial sentence (6) 
 
 {x) 8T. R. 54.5. 2 New Rep. 148. 2 B. (2) 11 East, 301. 
 
 & C. 555. A deed providing tor future Sep- (a) 3 B. and C. 297. 
 
 aration was considered void, 6 B. & C. 200. (4) 2 Bla. Rep. 1197. 1 T. R. 7. 2 B. 
 
 tut see 3 Chit. Gen. Prao. 129. and P. 231. 4 Esp. Rep. 57. 3 B. and C. 
 
 (y) 3 B. and C. 291. 297. 
 
 (1) In Massachusetts, a wife, who is divorced a mensa el thoro, may sue a, feme sole on causes 
 of action arising after the divorce. Dean v. Richmond, 5 Pick. 461. Pierce v. Lurnham, 4 
 Metcalf, 303. See 2 Kent (5th ed.) 157. 
 
 (2) See 2 Kent (5th ed.) 155. Where the husband had never been in the United States, and 
 had deserted his wife in a foreign country, and she came here and maintained herself as a feme 
 sole, she was held entitled to sue or be sued as a feme sole. Gregory v. Paul, 15 Mass. 31, 
 Rand's ed. p. 85 note (a), and cases there cited. So where the husband, a citizen of and resi- 
 dent in another of the United States, compelled his wife to leave him without providing any means 
 for her support, and she came into Massachusetts and maintained herself there for more than 
 twenty years as a single woman, she was held entitled to sue as afemfi sole. Abbot v. Bayley, 
 6 Pick. 29. The principle of the above decision has been extended still farther by the Rev. Stat. 
 of Massachusetts, ib. ch. 77, § 18. • 
 
 In Beane v. Morgan, 4 M'C. 148 : S. C. 1 Hill. 8, it was held, that if the husband leave the 
 state, without the intention of returning, the wife is competent to contract, to sue and be sued, 
 as if she were a, feme sole. See Valentine v. Ford, 2 Browne 193. Robinson v. Reynolds, 1 Aik. 
 174. Troughton v. Hill, 2 Hayw. 406. Rhea ». Renner, 1 Peters, 105. Edwards v. Davies, 
 16 Johns. 286. Chitty, Cent. (6th Am. ed.) 177 et seq. 
 
 In Gregory v. Pearce, 4 Metcalf, 478, it was observed by Mr. Chief Justice Shaw, that " the 
 principle is now considered as established in this state, as a necessary exception to the rule of the 
 common law, placing a married woman under disability to contract or maintain a suit, that where 
 the husband was never within the commonwealth, or has gone beyond its jurisdiction, has wholly 
 renounced his marital rights and duties, and deserted his wife, she may make and take contracts, 
 and sue and be sued in her own name as a feme sole. It is an application of an old rule of the 
 common law, -which took away the disability of coverture, when the husband was exiled or had 
 abjured the realm. Gregory v. Paul, 15 Mass. 31. Abbot v. Bailey, 6 Pick. 89. In the latter 
 case it was held that in this respect, the residence of the husband in another state of these United 
 States, was equivalent to a residence in a foreign country, he being equally beyond the operation 
 of the laws of the commonwealth and the jurisdiction of its courts." 
 
 " But to accomplish this change in the civil relations of the wife, the desertion by the husband 
 must be absolute and complete; it must be a voluntary separation from and abandonment of the 
 wife, embracing both the fact and the intent of the husband to renounce de facto, and as far as 
 he can do it, the marital relation, and leave his wife to act as a /eme sole. Such is the renuncia- 
 tion, coupled with a continued residence in a foreign state or country which is held to operate as 
 an abjuration of the realm." See Cornwall v. Hoyt, 7 Conn. 420. 
 
 In Massachusetts it is provided by Statute, that when any married man shall absent himself 
 from the state, abandoning his wife and not making sufScient provision for her maintenance, if 
 the wife is of the age of twenty one years, the Supreme Judicial Court may on her petition, 
 authorize her to commence, prosecute, and defend any suit in law or equity to flnal judgfnent and 
 execution, in like manner as if she were unmarried. Rev. Stat. eh. 77, § 1, § 4.^ 
 
 (3) A person sentenced to imprisonment in the state prison, for life, is civiliter mor- 
 tuus, Deming's Case, 10 Johns. 232. Deming's Case does not decide, that a person 
 sentenced to imprisonment for life in the state prison is civiliter morluus by the common 
 law — the civil death, referred to in that case, was the consequence of the provisions of 
 the act. of 29th March, 1799. Chancellor Kent has recently decided, that such a sen- 
 tence prior to the 29th March, 1799, ■?ras not productive of civil death. Platner v. Sher- 
 wood, 6 Johns. Cha. 118. See 2 Rev. Stat. 701, sect. 19. A divorce a vinculo matri- 
 monii restores the -woman to the condition of a feme sole. Bac. Abr. Marriage and ^ Di- 
 vorce (E) 3. In the state of New York a divorce a vinculo matrimonii may be obtained 
 on account of adultery in either of the parties; and if granted on the application of the 
 wife, she is secured in the enjbyment of lands which she may be the owner of ; or goods, 
 chattels, or choses in action, in her possession; (which were left with her by her hus- 
 
28 a OP THE PARTIES TO ACTIONS. 
 
 I 
 PLAiHTirrs 
 
 (1). Where the husband has been abroad, and not heard of for seven 
 a Mar™' yea-fs, his death will be presumed (c). 
 riage. All chattels personal of the wife, in possession, are by marriage abso- 
 
 [ *29 ] lutely *given to the husband, and for the recovery of them he may sue 
 alone (rf) ; and in a late case where a bill of exchange was payable to a 
 feme sole, who intermarried before the same was due, it was held, that the 
 . husband might sue ia his own name without joining his wife, although the, 
 latter had not indorsed the bill, such a bill or note not being a mere chose 
 in action (e). And it is a general principle, " that that which the husband 
 may discharge alone, and of which he may make disposition to his own 
 use, for the recovery of this he may sue without his wife " (/). 
 
 As mere choses in action of the wife do not by the marriage vest abso- 
 lutely ia the husband until he reduce them in possession, and if not reduced 
 into possession, she would take them by survivorship. In general ho cannot 
 sue alone (2), but must join his wife in all actions upon bonds, and other per- 
 sonal contracts, made with the wife before the marriage, whether the breach 
 were before or during the coverture ; and also for rent or any other cause 
 of action accruing before the marriage, in respect of the real estate of the 
 wife (§■) (3). There arc, indeed, decisions and opinions which appear to 
 
 (e) 2 Camp. 113, 273. 1 Jao. 1, c. 11, s. (g) 3 T. R. 631; 1 M. and Sel. 180, 181, 
 
 2; 1 Bla. Eep. 404; 6 East, SO. Com. Dig. Bar. and Feme, V.; Bao. Abr. 
 
 (d) 8 T. R. 631 ; Co. Lit. 351 b. Com. Dig. Bar. and Feme, K. ;'l Roll. Ab. 347, R. pi. 3. 
 Bar. and Feme, E. 3. 2 Ves. 676, 677. Bui. N. P. 179. 10 Vea. 
 
 (e) 1 B. and Aid. 218. He alone may pe- 678. 4 Mod. 186. 2 Wils. 423. 1 Hen. Bla. 
 tition for a commission of bankruptcy, upon a 109. 1 B. and Aid. 222, 223. 
 
 note given to his wife dum sola, 1 G. and J. 1. 
 (/) Per Dodderidge, J. in 3 Bulst. 164, 
 recognized in 1 B. and Aid. 224. 
 
 band, -which she may have acquired by her own industry, or which may have been given 
 her by devise or otherwise, or may have come to her, or to which she may have been entitled by 
 the decease of any relative intestate;) at the time of pronouncing the decree; s. 6. 2 R. 
 L. 199. For the several Acta of Assembly in Pennsylvania, see Purdon's Digest, p. 128, and 
 notes. 
 
 (1) See Wright w. Wright, 5 Desaus. 244. Cornwall v. Hoyt. 7 Conn. 420. Troughton v. 
 Hill, 2 Hayw. 486. Robinson v. Reynolds, 1 Aik. 174. * 
 
 Mr. Chancellor Kent, 2 Kent (5th ed.) 154, in reference to this point, remarks, that " Lord 
 Coke seems to put the capacity of the wife to sue as Afeme mUt upon the ground, that the abju- 
 ration or banishment of the husband amounted to a civil death. But if the husband be banished 
 for a limited time only, though it be no civil death, the better opinion is, that the consorinencea as 
 to the wife are the same, and she can sue and be sued as afeme sole." See Ex parte Franks, 1 
 Moore & Scott, 1. 
 
 In Robinson v. Reynolds, 1 Aiken, 174, this point was considered and the English coses ably 
 reviewed ; but the question was by this case still left unsettled whether transportation or banish- 
 ment of' the husband by law, for a limited time only, would be sufficient to give the wife the 
 capacity to sue and be sued as afeme sole. It seems, however, from the case of Foster v. Everard, 
 Craw, and Dix, 135, that afeme covert, whose husband has been transported' for a limited term 
 of years, will not be allowed to sue in equity as afeme sole. 
 
 (2) Morse v. Earle, 13 Wend. 271. See, however, Cornwall y. Hoyt, 7 Conn. 420. In all 
 actions for choses in action due to the wife before marriage, the husband and wife must join. 
 The true rule is, that in all cases where the cause of action by law survives to the wife, the hus- 
 band cannot sue alone. CUpp v. Inhabitants of Stoughton, 10 Pick, 463. 
 
 (3) Decker v. Livingston, 15 Johns. 479; Morse v. Earle, 13 Wend. 271. It is well 
 settled that the husband cannot be sued alone, upon a contract of the wife when sole and 
 before marriage. 15 Johns. 403, 402. 8 ib. 150. Neither should he be permitted to prose- 
 cute alone upon such a contract. Reeve Dom. Rel. cb. 10, p. 126. As a husband can- 
 not maiataiA a suit in his own name, to recover a demand which accrued to his wife be- 
 fore marriage under a contract made with her, the wife mutt be joined in the action. 
 
IN FOEM EX CONTRACTU. — PLAINTIFFS. 29 
 
 I. 
 militate against this rule (Ii) ; but the current of authorities seems fully to ^'"^"^''^^^s 
 establish it, and it is observable that it prevails also in equity and in cases ^: '^^'^- 
 of bankruptcy (i) ; and that the rule is the same when the action is brought "°'^*" 
 on a contract made by a feme whilst sole, in which case the husband can- 
 not be sued alone (&). And when the wife is executrix or administratrix, 
 as her interest is in autre droit (1), they must in general join in the action (/). 
 But if in respect of a contract made to the wife whilst sole, the party 
 thereto, after the marriage, give a bond to the husband and wife, or in • 
 respect to some new consideration, as forbearance, &c., make a written 
 or parol promise to the husband and wife, they may join, or the husband 
 may sue alone upon such new contract (m). If such bond or fresh prom- 
 ise were made to the husband alone, he alone can sue thereon, the wife 
 not being privy to the new contract («) ; but they may jointly sue on the 
 original contract in cases where it is not merged by a higher security. 
 If a bond be given to a husband and wife administratrix, he may declare 
 on it as a bond made to himself (o). 
 
 In general, the wife cannot join in an action upon a contract made *dur- [ ^^ J 
 iwg" the marriage, as for her work and labor, goods sold, or money lent by 
 her during that time (p) ; for the husband is entitled to her earnings, and 
 they shall not survive to her, but go to the personal representatives of the 
 husband and she could have no property in the money lent or the goods 
 sold (^). But when the wife can be considered as the meritorious cause 
 of action, as of a bond or other contract under seal, or a promissory note, 
 be made to her separately, or with her husband (r), or if she bestow her 
 personal labor and skill in curing a wound, &c. (s), she may join with the 
 husband, or he may sue alone (2). 
 
 {h) 3 Lev. 403. Selw. N. P. 285, 5th edit. East, 472. Where the wife is separated from 
 
 Co. Lit^ 351 a, 396. n. 2. 7 T. R. 349. 1 her husband, she may in some cases, without 
 
 Vern. 896. his concurrence, sue in his name, 9 East, 
 
 (i) IM. & Sel. 176. 2 Freem. 160. Bac. 471. 
 
 Abr. Baron and Feme, K. 15 Ves. 495, IB. (q) Id. Ibid. Cro. Jac. 644. 2Wils. 424. 
 
 & Aid. 222. 223. 2 Bl. Rep. 1237. Carth. 251. Semble, that 
 
 (ft) 7 T. R. 348. although by the laws of a foreign country, 
 
 (l) Vin. Ab. Baron and Feme, Q. 22. Com. husband and wife, natives of that country. 
 
 Dig. Baron and Feme, V. and resident there may be partners in trade, 
 
 (m) 1 M. & Sel. 180. 4 T. K. 616. 1 Salk. they cannot jointly sue here for a debt due to 
 
 117. Ld. Raym. 368. the firm, R. & M. Rep. 102. 
 
 (n) See id. Cro. Jac. 110. Telv. 89. 1 (r) 3 Lev. 403. Stra. 230. 4 T. R. 616. 
 
 Saund. 210. Co. Lit. 351 a, note 1, 120. 2 M. & Sel. 393, 
 
 (o)4T. R. 616. 395. 
 
 (Jo) 2 Bla. Rep. 1239. 1 Salk. U4. Com. (s) 2 Sid. 128. Cro. Jao. 77. 2 Wils. 
 
 Dig. Baron and Feme, W. 2 Wils. 424. 9 424. See Bac. Abr. Baron and Feme. K. 
 
 So also, where a husband performs the stipulations of a contract entered into by his wife before 
 marriage, which if performed by her whilst sole would have given her a right of action, the ac- 
 tion for the recovery of a demand thus arising must be brought in the joint names of husband 
 and wife. Morse v. Earle, 13 Wend. 271. 
 
 (1) So, where a wife is guardian in socage. Bryne v. Van Hoosen, 5 Johns. 66. 
 
 (2) A gift or bequest to the wife is in effect a gift or bequest to the husband, and he cannot be 
 deprived of it, without an unequivocal intention manifested by the donor or the testator, that he 
 is to have no interest or part in it. Evans v. Knorr, 4 S. & R. R. 66. Marriage is an absolute 
 gift to the husband of the wife's personal chattels in possession; and so it is also of choses in ac- 
 tion, if he reduce them into possession by receiving or recovering them at law. Commonwealth 
 V. Manly, 12 Pick. 173. 8 ib. 218. But a legacy given to the wife, and to be paid to her when 
 she is divorced from her husband or voluntarily withdraws from him; held, that she became en- 
 titled to the legacy for her sole and separate use, without the intervention, and beyond the control 
 pf her husband. Ferry v. Boileau, 10 S. & R. 208. If a bond or obligation be made to a hus- 
 
80 OP THE PAETIES TO ACTIONS. 
 
 I- "Where the wife is joined in the action, in these cases the declaration 
 
 piAiKiiras j^^g^ distinctly disclose her interest, and show in what respect she is the 
 8. Mar- meritorious cause of action, and there is no intendment to this effect (<), 
 ^'^^^' In the case of a bond or note payable to her or to her husband and her- 
 self, it would sufficiently appear from the instrument itself, as set out in 
 the declaration, without further averment, that she had a peculiar interest, 
 justifying the use of her name as a plaintiff (u). Bat care should be taken 
 that the declaration does not embrace a cause of action which affords the 
 husband only a right to sue. Therefore where husband and wife declared 
 for a debt due for a cure effected by the wife during their marriage, and 
 the declaration also contained a charge for medicines supplied, " upon 
 general demurrer it was objected that the wife could not join, for that she 
 was not the sole cause of action, because the medicines were the husband's 
 own property, and the damages could not be severed, and of that opinion 
 was the court " (a;). 
 
 A feme covert executrix must join in an action upon an implied promise 
 in respect of the estate of the deceased ; as if money, part of the assets of 
 the testator, be received by a party after the converture, the husband can- 
 not, it seems, sue alone in assumpsit, as for money had and received to 
 his use, but he and his wife should join, and declare in the character of 
 executrix (y). 
 For rent, or other cause of action accruing during the marriage, on a 
 [ "SI J lease or demise, or other contract relating to the land or other real *prop- 
 erty of the wife, whether such contract were made before or during the 
 coverture, the husband and wife may join or he may sue alone (z) (1). 
 When a lease, for years has been granted to husband and wife, and the les- 
 sor evicts them, they may join, or the husband may sue alone (a) ; and in 
 all actions for a profit, <fec. accruing during coverture in right of tlie real es- 
 tate of the wife, they may join, or the husband may sue alone, as in debt, 
 for not setting out tithes payable to the wife (b). 
 
 The effect of joining the wife in an action when the husband might sue 
 alone is, that if the husband die whilst it is pending, or after judgment, 
 and before it is satisfied, the interest in the cause of action will survive to 
 the wife, and not to the executors of the husband, though if he sued alone 
 
 (0 2 Bla. Kep. 1236. 2 M. & Sel. 396. Wils. 424, noticed by Lord EUenboroogh in 8 
 
 In replevin by bnsband and wife for taking M. & Sel. 896. 
 
 their goods, it may perhaps be presumed of- (y) 1 Salk. 282. Com. Dig. Baron and 
 
 ter verdict , though it would not be so on de- Feme, V. 
 
 murrer, (2 New Kep. 405), that the taking (z) Stra. 229. 1 Wils. 224. Com. Dig. 
 
 was before coverture, and that they then were Baron and Feme, X. T. 
 
 jointly possessed, or that she was entitled as (a) Bro. Abr. Baron and Feme, pi. 2S. 2 
 
 executrix, &c. in either of which cases she Mod. 517. Cro. Jac. 399. Bnlst. 163. 
 
 might be joined, post. (i) Com. Dig. Baron and Feme, X. 2 Wils. 
 
 (u) 2 M. & Sel. 893,396. 423, 424; Cro. Jac. 899. Cro. Eliz, 608. 
 
 (x) Holmes and wife v. Wood, cited in 2 
 
 band and wife, the wife would have it by survivorship. Thus, where the plaintiff 's intestate 
 joined in a conveyance of the wife's land, and the grantee executed a promissory note to the hus- 
 band and wife together with a mortgage as collateral security. Upon the death of the husband 
 and marriage of the wife with the defendant, who was sued in trover for a conversion of the 
 note; but the court decided that the plaintiff was not entitled to recover; because the wife had 
 it by survivorship. Draper ti. Jackson, 16 Afass. 480. 
 
 (1) See Smith v. Talcott, 21 Wendell, 202. In ejectment to recover the wife's land, hus- 
 band and wife must be joined in the declaration. Atkinson v. Bittenhouse, 6 Barr, 103. 
 
PLAINTIFTg. 
 
 IN FORM EX CONTRACTU. — PLAINTIFFS. 
 
 she would have had no interest (c). A feme covert, being a sole trader 
 according to the custom of London, can only sue and be sued in the city 
 courts,' and even there the husband must be joined for conformity (d) (1). 8- Map 
 If a right accrue or injury be committed to a feme covert whilst living sep- ™^'' 
 arate from the husband, an indemnity should be tendered to the husband 
 against costs, after which, even without his consent, an action may be 
 brought in his name, either separately or jointly with his wife, according 
 to the then circumstances of the case (e) ; but the indemnity should be pre- 
 viously tendered, or the court might stay proceedings (/"). 
 
 If the husband survive (g-) there is a material distinction between chat- 
 tels real and chases in action. The husband is entitled to the chattel real 
 by survivorship, and to all rent, &c. accruing during the coverture ; he is 
 also entitled to all chattels given to the wife during the coverture in her own 
 right (/t), though not to her rights in autre droit (i). But mere choses in ac- 
 tion, or contracts made with the wife before coverture, do not survive to 
 the husband, and he must, to recover the same, sue as administrator of his 
 wife, (A) (2). So the administrator of a husband, who survived his wife, 
 and died without taking out administration to her effects, cannot recover her 
 
 (e) Co. Lit. 351 a. u. 1; Cro. Jac. 77. '205; Com. 433 to 437; Co. Lit. 35], n. 1; Com 
 
 Bl. Rep. 1236. Dig. Bar. & Feme, F. 1, E. 2, 8, Z. (2 A.) 
 
 (d) 2 B. & P. 98; 4 T. R. 361. (A) Com. Dig. Bar. & Feme, E. 2, 3, Z.; 1 
 
 (e) Chambers v. Donaldson, 9 East, 471; 4 M. & Sel. 180; 2 Bla. Com. 424; Co. Lit. 351 
 " Bar. & Aid. 419, post. a, note 1. 
 
 {/) Morgan and wife v. Thomas, 2 C. & M. (i) lb. Ibid.; 4 T. R. 616, 1 Boll, Ab, 889, 
 
 388. pi. 10; Dyer 331 a. 
 
 (g-) As to the effect of survivorship in gen- (/f) Com. Dig. Bar. & Feme, E. 3 ; 2 Bla. 
 
 eral between baron and feme, see Bao. Abr. Com. 435; 3 Mod. 186; 2 Ves. sen, 676; Rep. 
 
 Executors and administrators, H. 4; 2 Bla. temp. Talb. 173; Co. Lit. 351, n. 
 
 (1) .;4Zrtcr in Pennsylvania. Act of 22d Feb. 1718, sect. 1. Purd. Dig. 298. 1 Sm. Laws, 
 99. 
 
 A husband cannot convey an estate by deed to his wife. Martin o. Martin, 1 G-reenl, 298, 
 Post-nuptial contracts are sanctioned upon the principle that the convenience and interest of 
 families require such exchanges. Thus, it was held that a conveyance made in trust to the wife, 
 after marriage, upon the transfer to him by the wife, of an equivalent out of her property, will 
 be established both at law and in equity. But such contracts must be honest; not feigned or pre- 
 tended. BuUard v. Briggs, 7 Pick. 533. 
 
 (2) Although the husband cannot sue for a debt due his wife dum sola, after her death, with- 
 out obtaining letters of administration, yet the necessity of doing this has relation merely to the 
 mode and not to the right of reducing her choses in action into possession ; the right to them 
 resides in no other person ; if he gain possession of them without suit, his title is as perfect as 
 though he had taken out letters of administration; if he die without reducing them into posses- 
 sion , the right to them survives to his, and not the wife's representatives, and if any other per- 
 son obtain the possession, he can hold only as trustee for the husband or his representatives. 
 Whitaker v. Whitaker, 6 Johns. 112. Co. Lit. 851. a,, n. 1. See, however, Cornwall v, Iloyt, 
 7 Conn. 429. Beach v, Norton, 8 Conn. 71. Griswold v. Penniman, 2 Conn. 564. 
 
 Where a legacy had been left to the wife, and the husband had been absent, so that the wife 
 obtained a divorce dissolving the ties of matrimony; held, that the wife was entitled to the 
 legacy. Wintercast v. Smith, 4 Rawle, 177. In the case of Goddard v. Johnson, 14 Pick. 
 352, it was decided that a husband may sue in his own right, after the death of his wife, for a 
 legacy accruing to the wife during the coverture. In this case the court said, " we think the 
 husband might have sued alone, had the wife been still living, and consequently that the action 
 may be sustained. It is a well settled principle, that a chose in actiori accruing to the husband 
 and wife during coverture, vests absolutely in the husband." In Hapgood v. Houghton, 22 
 Pick. 480, the court confirmed the above decision. See Sawyer v. Baldwin, 20 Pick, 878; Davis 
 V. Newton, 6 Metcalf, 643, 545. For a full collection of the cases upon this subject, see 1 Daniel 
 Ch. Pr. (1st Am. Ed.) 149, note (1); Parsons v. Parsons, 9 N. Hamp. S09; Blunt il. Restland, 6 
 Sumner's Vesey, 515, Perkins' note (a) Strong v. Swift, 1 Metcalf, 476; Wallace v. Taliaferro, 
 2 Call, 447; Irvine v. Divine, 7 Monroe, 246; Hayward v. Hayward, 50 Pick, 517; 
 
 Yql. I. 6 
 
Tiage. 
 
 32* OF THE PARTIES TO ACTIONS. 
 
 1.' choses in action, and for the latter purpose administration must be taken 
 piAiKtiFfs out to tjie wife (/). And he may sue as administrator on a bond to his wife 
 8. Mar- *during coverture (m). And if pending an action by husband and wife for 
 sych chose in action, the wife die, the suit abates (w) ; but if they obtain 
 judgment, he may, notwithstanding her subsequent death, issue execution, 
 or support an action of debt on such judgment (o). He is entitled to sue 
 or distrain for arrears of rent which became due in the life-time of his. 
 wife, from persons who were tenants of her freehold property (p'). But 
 the husband cannot sue for arrears of rent accruing after the death of his 
 wife, on a lease of her land by himself and wife under seal during coverture 
 in which the lessee covenanted with the husband and wife and the heirs 
 of the wife (q}. 
 
 If the loife survive, she is entitled to all chattels real which her husband 
 had in her right, and which he did not dispose of in his life-time, and to 
 arrears of rent, &c. which became due during the coverture, upon her an- 
 tecedent demise, or upon their joint demise (r), during the coverture to 
 which she assents after his death ; and to all arrears of rent and other cha- 
 ses in g,ction to which she was entitled before the coverture, and which the 
 husband did not reduce into actual possession (s). She also takes by sur- 
 vivorship a debt due upon a judgment recovered by husband and wife (1), 
 whether obtained for a debt due to the wife whilst sole (<), or upon a con- 
 tract made with the wife during coverture, where she is the meritorious 
 cause of action (u) ; and she is entitled to a bond given to her and her hus- 
 band (x), or to her alone Qy), she is also entitled to all rights of action in 
 autre droit as executrix or administratrix («). And where during cover- 
 ture of an administratrix, her husband joined with two sureties in a note for 
 money lent to the husband, out of the estate vested in the wife as adminis- 
 tratrix, it was held, that after the death of her husband she might sue the 
 other two parties to the note (a). In all these cases where the wife is join- 
 ed in the action, if the husband die pending the suit, it will not abate, and 
 the wife may proceed to judgment and execution, the death of the husband 
 being suggested upon the record (Z)) (2). And where a feme executrix mar- 
 ries a debtor to the testator ; the right of action is only suspended during 
 the coverture, and if she survive, she may, in her character of exdfcutrix, 
 sue the executrix of her husband (c). But if the husband made a separate 
 demise of the wife's land, his executor will be entitled to the rent which 
 became due before his death, and not his surviving wife (d). 
 
 (/) Belts «. Kempton, 2 B. &'Adol. 573. Com. 434; 2 Ves. sen. 676; 1 Vera. 396. 
 
 (m) 2 M. & Sel. 396, 397. (k) 2 Bla. Kep. 1239; Cro. Jao. 77, 1206; 
 
 (n) 6 B. & C. 253. Co. Lit. 351 , a, n. 1 ; 1 Vem. 396. 
 
 (0) 3 Mod. 189, notes (g), (A). (x) 2 P. W. 496. 
 (p) 82 Hen. 8, c. 37, s. 3. (y) 2 M. & Sel, 396, 897, n. b. 
 (9) 2 Bingh. 112, 4 B. & 0. 529, S. C. in (2) 4 T. R. 616; Com. dig. Bar. & Feme, 
 
 error. F. 1. 
 
 (r) Not if the husband demise alone. Did. (a) Richards v. Richards, 2 Bar. & Adol. 
 
 Sir J. Mansfield, 2 Taunt. 181. 1 Roll. Ab. 447. 
 
 350 d. (A) 8 & 9 W. 3, c. II, s.J 7; Rep. temp. 
 
 (s) 1 Roll. Ab. 350; Co. Lit. 351 a; Com. Hardw. 397 to 399. 
 
 Dig. Bar. & Feme, F. 1. (e) Cro. %\\z. 114; 8 Atk. 726. 
 
 (0 Com. Dig. Bar. & Feme, F. 1; 2 Bla. (d) 2 Taunt. 181. 
 
 (1) Gibson v. Todd, 1 Rawle, 452. Hammiok v. Bronson, 5 Day, 290. ' m Z 
 
 (2) Vide Schoonmaker v. Elmendorf, 10 Johns, 49. Vaughan v. Wilson, 4 Hen.' & Mun. 
 452. f- ; .. 
 
IN I'OBM EX CONTRACTU. — DEPENBANTS. 
 
 •33 
 
 *The consequences of a mistake ia the proper parties, in the case of bar- . i- 
 on and feme, are, that when a married woman might be joined in the action ^"'''^'<»^- 
 with her husband, but sues alone, the objection can only be pleaded in ^a^"^ 
 abatement (1), and not in bar, though the husband might sustain a writ of 
 error (e), and if she marry after writ, and before plea, her coverture mus't 
 be pleaded in abatement, and cannot be given in evidence under the gene- 
 .ral issue (/) (2). But when a feme improperly sues alone, having no le- 
 gal right of action, she will be nonsuited (g-) ; and if she improperly join 
 in an action with her husband, who ought to sue alone, the defendant may 
 demur (A), or the judgment will be arrested (i), or reversed on a writ of 
 error (Je). And if the husband sue alone, when the wife ought to be 
 joined, either in her own right, or in autre droit, he will be nonsuited (0 ; 
 or if the objection appear on the record, it will be fatal in arrest of judg- 
 ment or on error (»»). 
 
 II. WHO TO BE DEFENDANTS. 
 
 The action upon an express contract, whether it be by deed, or merely 
 in writing, or by parol, must in general be brought against the party who 
 made it, either in person or by agent (n). And although in the case of a 
 deed inter partes, an individual not named as a party cannot sue thereon, 
 although it contain a covenant with him, and for his benefit (o), yet this rule 
 does not protect from liability a party who executes such a deed, contain- 
 ing a covenant by .him, although he is not described as a party thereto (jo). 
 
 And a party who expressly contracts, and permits credit to be given to 
 him, is liable, although he were not the strict legal owner of the property 
 in respect of which the contract is made, nor beneficially interested. Thus 
 the owner of a ship is prima facie liable for repairs necessarily done to 
 it (^q) (3), but where the legal title to a vessel remained for some time 
 after the sale in the vendor, and during that time the captain, by the direc- 
 tion of the purchaser, ordered repairs, it was decided that the vendor was 
 not liable for the amount (r) (4). So the mortgagee of a ship is not 
 
 II. 
 
 DEFEND , 
 
 1st. As be- 
 tween tlie 
 original 
 parties, 
 and with 
 reference 
 to the lia- 
 bility of 
 the party; 
 
 (e) 3 T. R.- 631. 
 
 (/) 6T. R. 265. Bao. Ab. Abatement, (J. 
 It would be pleadable puis darrein continu- 
 lAnce in abatement, if it occurred after the de- 
 fendant had pleaded in chief to the declaration. 
 See Tidd, 9th ed. 849 (2). 
 
 (,g) 4 T. R. 361. 
 
 (A) 1 Salk. 114. 1 Sen. Bla. 108. 2 Wils. 
 424. 
 
 (t) Cro. Jao. 644. 
 
 (fc) 2 Bla. Rep. 1236. 
 
 {I) 1 Salk. 282. Bac. Abr. Bar. and Feme, 
 
 K. 1 M. and Sel. 180, 181. 
 
 (m) 1 Stra. 229. Cro. Jac. 424. 
 
 (ra) 8 East, 12. 3 Esp. R. 26. 3 Camplj. 
 354, 356. 
 
 (o) Jlnte, 3. 
 
 (y) Garth. 76. Holt. ,B. 210, S. C. Piatt 
 on Got. 7, 8. 
 
 (q) 2 Campb. 339, 517. 4 B. and A. 352. 
 Cowp. 636. See also 8 East, 10. 11 Id. 435. 
 13 Id. 238. 
 
 (r) 8 East, 10. See 13 East, 238. 16 Id. 
 169. 2 Campb. 517. 
 
 (1) Vide Newton v. Robinson, Tayl. 72. 
 
 (2) Wilson T. Hamilton, 4 S. and R. 238. 
 
 (3) See Abbott, Shipping, (6th Am. ed.) 39. 
 
 (4) Leonard V. Huntington, 15 Johns. 298. Thome v. Hicks; 7 Cowen, 697. Cutler v. Thur- 
 lo, 20 Maine, 213. Harrington v. Fry, 2 Bingh. 179. M 'Ivor v. Humble, 16 East, 169. Cox v. 
 Reid, 1 Carr. and P. 602. Dawe v. Hadlock, 4 Pick. 458. Portland BankjV. Stubbs, 6 Massi 
 422. James V. Bixby, 11 Mass. 34. Mulden t. Whitlook, 1 Cowen, 290. Vide Wendoverv. 
 Hogeboom, 7 Johns. 308. Hussey v. Allen, 6 Mass. 163. In the case last cited, neither tha 
 plaintiff nor the master had notice of the previous transfer. 
 
*34 OK (THE PARTIES TO ACTIONS. 
 
 «• liable for wages, or repairs where the party claiming the debt was em- 
 
 ^^m' ployed by the mortgagor (s), or expressly *gave him credit (t) (1). So if 
 
 1. Who an executor trustee carry on trade as trustee for the benefit of the chil- 
 
 legally fia^ dren of the testator, he will be personally liable to pay the debts, and may 
 
 '"''• even be made a bankrupt in respect of them (m). 
 
 In the case of an express contract, the agreement itself will, therefore, 
 in general, remove all diflSculty with regard to the person who should be 
 sued upon it. 
 
 Incaaes But diflSculties frequehtly occur in deciding Who should be made the de- 
 
 con'tract fendant in an action upon a promise created or implied by laijo from a par- 
 can only ticular state of facts. In this case it Jnust be ascertained who is the party 
 beimp/iW. subject to the legal liability ; for he is the person who should be sued {x). 
 A mere equitable or moral obligation to pay a demand is, in the 
 absence of an express promise, insufficient to support an action (y) (2). 
 And there are some instances in which even an express promise will give 
 no additional force to mere equitable liability, as in the case of a prom- 
 ise, without any new consideration, to pay a legacy (s), or the share of 
 an intestate's effects to which the plaintiff is entitled under the Statute of 
 Distribution (a). In these cases, the subject-matter is more peculiarly 
 within the province of the Courts of Equity, and a Court of Common 
 
 («) 3 Campb. .S54. (a:) 2 Hen. Bla. 663; 1 Hen. Bla. 93. 
 
 (t) 7 B. and C. 80. Ry. and M. N. P. C. (,y) See Chit. jun. on Con. 10. 
 
 199; 2 Bingh. 179; 9 Moore, 344, S. C. (z) 5 T. R. 690; 7 B. and C. 544. 
 
 (u) Viner v. Cadel, 3 Esp. Rep. 88. (») 7 B. and C. 542. 
 
 ( 1 ) The mortgagee of a vessel, although the register or enrolment may stand in his name, if 
 he has not taken the actual possession and control of the vessel mortgaged, is not held liable for 
 repairs or supplies furnished by order of the master, acting under the orders and authority of the 
 mortgagor. Cutler t, Thuflo, 20 Maine, 213. Ring v. Franklin, 2 Hall, (N. Y.) 1. Colson v. 
 BondSey, 6 Greenl. 474. Winslow t. Tarbos, 18 Maine,- 132. Brooks v. Bondsey, 17 Pick. 441. 
 M'Carte v. Huntington, 15 Johns. 298. Lord v. Ferguson, 9 N. Hamp. 380. Birbeck t. Tucker, 
 2 Hall, (N. Y.) 121. Tucker t. Buffington, 15 Mass. 477. M'Intyre t. icott, 8 Johns. 159. 
 Champlin v. Butler, 18 Johns. 169. Phillips v. Sedley, 1 Wash. C. 0. 226. 
 
 But the mortgagee is liable for all supplies furnished after he has taken possession, although 
 the plaintiff at the time he furnished the supplies yia,s ignorant of the fact, that the defendant 
 was mortgagee. Miln v. Spinola, 4 Hill, (N. Y.) 177. Champlin v. Butler, 18 Johns. 169. So 
 nhere a bill of sale is unconditional, the purchaser is liable for supplies, though he has never 
 taken possession of the vessel, and though neither the master, nor the merchant furnishing sup- 
 plies, had any knowledge of the sale. Lord v. Furguson, 9 N. Hamp. 380. 
 
 In respect to the liability for repairs and supplies, where the vessel is chartered, see Perry v. 
 Osborne, 5 Pick. 423, where the court remarked that generally supplies for a ship are furnished 
 on the credit of the master and owner; but where the ship is out of the employment of the 
 owner, the charterer, whether under a parol or written contract, is held, and not the owner. See 
 also to the same effect. Cutler v. Winsor, 6 Pick. 335. Thomas v. Hamilton, 12 Pick. 428. 
 Tucker v. BufSngton, IS Mass. (Rand's ed.) 481 note (a) ; 3 Kent, (5th ed.) 136^139. Thomp- 
 son V. Snow, i Greenl. 264, Hallett v. Col. Ins. Co. 8 Johns. 272. Emery v. Hersey, 4 Greenl. 
 407. Cutler V. Thurlo, 20 Maine, 217. Houston v. Darling, 16 Maine, 413. Winsor v. Cutts, 
 7 Greenl. 261. 
 
 (2) See Mills v. Wyman, 3 Pick. 207. Andrews v. Ives, 3 Conn. 368. Dodge v. Adams, 19 
 Pick. 429. Parker V. Carter, 6 Munf. 273. M'Pherson v. Rees, 2 Pennsylv. 621. Glass v. 
 Beach, SVermt. 176. Barlow v. Smith, 4 Vermont. 144. Commissioners v. Perry, 5 Haw. 
 58. Turner V. Patridge, 8 Pennsylv. 172. Snevely v. Read, 9 Watts, 491 . Stafford v. Bacon, 
 26 Wend. 884. S. C. 2 Hill. 853. A moral obligation is available as a consideration for an 
 express promise, in those cases only, where a prior legal obligation has existed, which, by reason 
 of some statute, or stubborn, rule of law, cannot now be enforced. Cook v. Bradley, 7 Conn. 57. 
 See Seouton v. Eislord, 7 Johns. 86; Erwin v. Saunders, 1 fcowen, 249; Shippey v. Henderson, 
 14 Johns. 178. 
 
IN FORM EX COifTEACTlJ. — DEPENDANTS. 34 d 
 
 Law cannot so effectually do justice between all parties ; and therefore "• 
 Will not recognize even an express promise so as to allow an action to be "^^ts?" 
 brought thereon. j ^ji^' 
 
 , legally lia- 
 
 The general rule is, that a cestui que trust cannot sue his trustee at ble. 
 law (6). But if a trustee state an account, and admit a balance due from notagXst 
 him to the cestui que trust, he may be sued at law (c). a trustee. 
 
 A contract made by an ag'ent, as such, is in law the contract of the prin- Against 
 cipal ; Quifacit per aliumfacit per se (1). The assent of the agent is the'^e^"*'' 
 assent of the principal ; the former is the mere conduit or medium by which 
 the contract is effected, and is not clothed with any legal or beneficial 
 interest in it which can render him responsible upon the agreement (</), al- 
 though in some instances he may sue thereon (e). The general rule there-- 
 fore is, that when a person has contracted, in the capacity of an agents and 
 that circumstance is known at the time to the person with whom he con- 
 tracts, such agent is not liable to an action for non-performance of the con- 
 tract (/), even for a deceitful warranty (^), if he had authority (2) frOm 
 his principal to make the contract '(A). *For the same reasons, if an attor^ [ *35 J 
 ney " for and on the behalf of his client, and as his agent," promise to pay 
 money, he is not personally liable if he had authority from his client (0(3)- 
 And where a trader, after an act of bankruptcy, employed an auctioneer to 
 sell goods, who sent him the proceeds by the hands of the defendant, it 
 
 (J) 1 Holt, N. p. C. 641. Bee 2 Moore, 15 East, 62,60. Paley, Prin. and Agent, 246. 
 
 .240. 8 Taunt. 263, S. C; Sand, on Uses, 3 Campb. 317. 2 M. and Sel. 438. 2 Taunt. 
 
 222. 2 Bro. C. C. 265. See further and 387. 
 
 qualification of that rule, I Chitty's Gen. (g) 3 P. Wms. 278, 279; 1 Bla. Rep. 670; 
 
 Pract. 6, 7, 8. 2 Ld. Raym. 1210; Cowp. 565; Burr. 1986; 1 
 
 (c) 1 Har. and Wol. 167. T. R. 181, 674; 4 T. R. 553; Peake, C. N. P. 
 
 (d) 8 Chit. Com. Law, 104, 211; Paley, 120; Bao. Abr. Action on the Case, B.; Ab- 
 Prin. and Agent, 251. Who may be an agent, bot, 1st ed. 229; 1 East, 507. 
 
 Co. Lit. 52, a. (A) 3 P. Wms. 279. 
 
 (e) Ante, 6, 7. (t) 3 P. Wms. 277; 2 M. and Sel. 438. 
 (/) See rule and principle, 12 VeSi 352; 
 
 (1) If a note signed by A. individually, be declared on as " executed for and in behalf of B. 
 by his agent A.," the variance will be fatal. Rossiter v. Marsh, 4 Cpuu. 196. So if such note 
 be declared on as the act and deed of B. ib. 
 
 (2) Hopkins v. Mehaffy, 11 S. and R. 128. Vide Carew v. Otis, 1 Johns. 418. 5 tb. 255, n, i. 
 Fassmore v. Mott, 2 Binn. 201. Bethune t. Neilson, 2 Cai. 139. Mann v. Ohandler, 9 Mass. 
 385. Dusenbury v. Ellis, 8 J. Cas. 70. 
 
 Doty V. Wilson, 14 Johns. 378. Smith T. Ware, 13 Johns. 257. In Frear t. Hardenburgh, 5 
 Johns. 272, it was held that there was neither a legal nor moral obligation on the owner of land ' 
 to pay for work done on it by one who entered, without his consent, or any consent, or color of • 
 right. See 20 Johns. 28. Such a consideration will not support an assumpsit, ib. 
 
 Dubois y. The Delaware and Hudson Canal Company, 4 Wend. 285. An agent renders himself 
 personally liable when he makes a contract upon terms which he knows he has no authority to 
 agree to, although the contract be made in the line of his basiness as agent. Meech v. Smith, 7 
 Wend. 315; Cunningham v. Soules, 7 Wend. 106. See No. 41 Amer. Jurist, 19, 20. Woodes y. 
 Dennet, 9 N. Hamp. 55. Savage v. Rix, 9 N. Hamp. 263. Clarke y. Foster, 8 Vermont, 90, , 
 
 Simons v. Heard, 53 Pick. 120; Newhall y. Dunlap, 3 Shepley, (Maine) 180; Feeter y. Heath, 
 11 Wend. 477; Chitty Cont. (6th Am. ed.) 227, notes (1) and (2). 
 
 (8) An attorney is personally liable to a sheriff, and so, it would seem, to any other officer of the 
 court, for his fees, as it is to be presumed that the credit was given to (he attorney. Adams y. 
 Hopkins, 5 Johns. 252; Ousterhout v. Day, 9 Johns. 114; 
 
35 OP THE PARTIES TO ACTIONS. 
 
 DEFEND 
 ANTB 
 
 I- was decided that the assignees could not sue the latter for the money (j). 
 
 JllT ^° where A., an auctioneer, being employed to sell an estate belonging to 
 
 who'le^ B., entered into and signed an agreement with C. for the purchase, in his 
 
 gaily liable own name, as agent of B., and B. shortly afterwards signed it, and added, 
 
 " I hereby sanction this agreement, and approve of A.'s having signed the 
 
 same on my behalf," it was held A. was not personally liable (/c). 
 
 But if an agent covenant under seal for the act of another, though he de- 
 scribe himself in the deed as contracting for and on the part and behalf 
 of such other person (Z) (1) ; or if he accept or draw a bill of exchange gene- 
 rally and not as agent, he is personally liable (m) (2) unless in the case of 
 an agent on behalf of government (w) (3). So where the defendant by a 
 written agreement, expressed to be made " by himself on behalf of A. B. of 
 the one part, and the plaintiff, of the other part," stipulated that he the 
 defendant would execute to the plaintiff a lease of certain premises, which, 
 as it was proved, belonged to A. B., Best, 0. J. held, that the defend- 
 ant was personally liable ; and he added, that there was no distinction be- 
 Agents, tween deeds and parol agreements in this respect (3). And where the so- 
 *'"• licitors of the assignees of a bankrupt, upon whose hands a distress had 
 
 been made by the landlord, gave a writCen undertaking, stating that " they 
 as solicitors to the assignees, undertook to pay the rent, &c." they were 
 held personally liable ( p') ; and in general, where an agent enters into a 
 written agreement as if he were the principal, and the credit is given to 
 
 (/) 4 Taunt. 198; 8 Campb. 183; QBingh. (n) l-T. R. 674; Gow's Cas. N. P. 117; 
 
 878; but see 4 M. & Sel. 259. Brod. & Bing. 276 to 286; 7 Moore, 91, 1103, 
 
 (k) 5 Moore, 270; 2 B. & B. 452, S. C; and S. C. 
 
 see 2 Taunt. 374, 387. (o) 1 Ey. & Moo. 229; see 5 Moore. 278. 
 
 {I) 5 East, 148. (p) 3 B. & Aid. 47; see also 2 D. &R. 307; 
 
 (m) Stra. 995; 1 B. and P. 368; Sowerby 1 B. & C. 160, S. C; 1 Gow. 117; 1 Stark. 
 
 V. Butcher, 2 Crom. & Mees. 868. 14. 
 
 (1) Vide White v. Skinner, 13 Johns. 807; Tippets v. Walker, 4 Mass. 595; Cutter v. Whitte- 
 more, 10 Moss, 447; Meyer v. Barker, 6 Binn. 228; Sumner v. Williams, 8 Mass. 362; Mitchell 
 V. Hazen, 4 Conn, 495; Belden v. Seymour, 8 Conn. 24; Duvall v. Craig, 1 Wheat. 45; Stone v. 
 Wood, 7 Cowen, 453; Stinchfield v. Little, 1 Greenl. 231; Magill v. Hinsdale,' 6 Conn. 464; 
 Copeland u. Mercantile Insurance Company, 6 Pick. 198; Key v. Farnham, 6 Har. & Jdbns. 418; 
 Andrews ■;;. Este, 2 Fairf. 267 ; New England Marine Insurance Company v. De Wolf, 8 Pick. 
 66; Evans v. Wells. 22 Wend. 284; Chitty Cont. (5th Amer. ed.) 229, and notes. 
 
 (2) Or draw a bill of exchange generally, without stating any qualification of his responsi- 
 bility as drawer, though the payees knew he was but an agent. Mayhew v. Prince, 11 Mass. 54. 
 The drawer of a note as guardiun of another, was held personally liable, Thatcher v. Dinsmore, 
 6 Mass. 299; Foster i). Fuller, 6 Mass. 58. A Covenant by an executor, as executor, and tiot 
 otherwise, was held not to bind him personally. Thayer v. Wendell, C. C. XT. S. First Ciro't 
 37. 1 Gallis, 87. 
 
 (3) An agent contracting on behalf of government is not personally liable. Vide Bainbridge 
 V. Downie, 6 Mass. 257; Jones v. Le Tombe, 3 Dall. 384. So, the Secretary at War, taking a 
 lease of a building, in Washington, for the use of the war office, was held not to be liable under a 
 covenant contained in the lease. Hodgson v. Dexter, 1 Cranch, 845. So, the president of a corpora- 
 tion, sealing a covenant, as president , and on behalf of the corporation. Hopkins v. Mehaffy, 11 
 Serg. & Rawle, 126; Randall ». Van Vechten, 19 Johns. 60. But a public officer may render 
 himself liable by his express promise. Gill ». Brown, 12 Johns. 885. The Supreme Court of the 
 State of New York have decided, that an agent of government, known as such, is personally 
 liable on a contract made by him on account- of government, unless it appear, as well that he 
 contracted in his official capacity, and on account of government, as that the other party gave 
 the credit, and intended to look to government for compensation. Sheffield v. Watson, 8 Caines, 
 69; Sed Vide Walker d. Swartwout, 12 Johns. 444. Swift b Hopkins, 18 Johns. 313. 
 
IN FORM EX CONTRACTU. — PLAINTIFFS. ' 35 a 
 
 him, he is personally liable {q) ; but this liability must be collected from the "• 
 instrument upon a reasonable exposition of the whole of its terms C?")- ""is°" 
 So, if a person being an agent act as a principal, and do not disclose his i. who le- 
 principal, or declare that he acts as agent at the time of making a verbal gaUy lia- 
 contract, and the credit be given expressly to him, he will be personally re- ^}\„„ 
 sponsible (s)(l). The master of a ship is in general *liable for necessaries L ^" J 
 furnished abroad (0, or in this country, unless they were furnished upon the Agents, 
 credit of the owners (u) ; and he or the owners may be sued upon the bill 
 of lading, or generally, for the loss of goods, unless there has been an ex- 
 press contract with the owners (x) (2) and it seems that a policy broker 
 alone can be sued for the premiums of insurance (jj'). 
 
 "Where an agent does not pursue in any degree the principal's authori- 
 tj{z^ ; or so far exceeds it as to discharge the principal from responsibili- 
 ty for his acts (a) ; or where he acts under an authority, which he knows 
 the principal has no right to give, as an agent selling property under a no- 
 tice that it does not belong to his principal ; he is personally responsi- 
 ble (6). 
 
 There is a material distinction between an action against an agent for 
 the recovery of damages for the non-performance of the contract, and an 
 action to recover back a specific sum of money received by him ; for 
 when a contract has been rescinded, or a person has received money as 
 agent of another who had no right thereto, and has not paid it over, an 
 
 (g) 2 East, 142. 6 T. R. 176; 1 T. R. (x) Garth. 58. Bac. Ab. Actions, B. 
 
 675. 15 East, 62; 6 Taunt. 147. 1 Marsh. (y) 1 Marsh, on lus. 204. 
 
 500. (2) 1 Eq. Ab. 308. 
 
 (r) 5 Moore, 270. 5 Taunt. 374, 387. (a) 3 T. R. 761. 1 Esp. N. P. C. 112 ; 3 
 
 (s) 3 Campb. 317. 15 East, 63, 66. 12 P. Wms. 279; 5 B. & Aid. 34. 2 Taunt. 
 
 Ves. 362. Payl. 246. Peake, C. N. P. 120. 386 ; 10 Ves. 400. 
 1 T. R. 181. 7 T. R. .359. Burr. 1921. (4) Cowp. 565, 566. 4 Burr. 1984. Bui. 
 
 (t) Cowp. 639. 7 T. R. 312. N. P. 133. M. Raym. 1210. 4 T. T. 558. 
 
 («) Abbott on Shipping, 1st edit. 95. Stra. 480. 1 Taunt. 359. 2 Id. 336. 
 
 , _ (1) Allen V. Rostain, 11 Serg. & Rawle, 375. If the seller of goods, knowing at the 
 time that the buyer, though dealing with him in his own name, is in truth the agent of another, 
 elect to give the credit to such agent, he cannot afterwards recover the value against the known 
 principal; but if the principal be not known at the time of the purchase made by the agent, it 
 seems that when discovered, the principal or the agent may be sued at the election of the seller; 
 unless where by the usage of trade, the credit is understood to be confined to the agent so dealing; 
 as particularly in the case of principals residing abroad. Patterson v. Gaudasequi, 15 East, 62. 
 Et Vide Mauri v. Heffernan, 13 Johns. 58. Jaques v. Todd, 3 Wend. 83. Lincoln v. Battelle, 6 
 lb. 475. Pentz v. Stanton, 10 ib. 271. Tradesman's Bank v. Astor, 11 Wend. 87. Jeffrey v. 
 Bigelow, 13 Ib. 618. 
 
 (2) The plaintiff has his election to sue either the one or the other, unless there were 
 a special promise from either, in which case the other is discharged. Garnham n. Ben- 
 nett, Str. 816. Farmer v. Davies, 1 Term. 108. Unless there is some special contract, 
 the mast«r is in every case personally responsible upon all the contracts, which he makes in 
 reference to the employment, repairs, supplies and navigation of the ship. See Watkins 
 c. Laughton, 8 Johns. 164; Elliott v. Russell, 10 J9hns. 1; Dakey v. Russell, 18 Martin. 
 The master is liable for repairs and necessaries ordered by him, whether at home or abroad. 
 James 2). Bixby, 11 Mass. 34; Marquand ». Webb, 16 Johns. 89; Leonardo. Huntington, 15 
 Johns. 298. 
 
 If there is a special promise of the master taken and relied upon, the owner is not liable ; and 
 on the other hand, if there is a special promise of the owners, the master is not liable. Hussey v. 
 Allen, 6 Mass. 163; Chapman v. Durant, 10 Mass. 47; James «. Bixby, U Mass. 34; Wain- 
 wright D. Crawford, 8 Yeates, 131; Farrell w. M'Clea, 1 Dall. 396; Scbermerhorn u. Lomas, 7 
 Johns. 311; Marquand v. Webb, 16 Johns. 89; Muldon v. Whitlook, 1 Cowei, 29; Thorn v. 
 Hicks, 7 Cowen, 697; Nickerson v. Monsoon, 6 Law Rep. 416. 
 
36 • OP THE PARTIES TO ACTIONS. 
 
 "• action may be sustained against the agent to recover the money (1) ; and 
 
 ^anto"' *^° mere passing of such money in account with his principal, or making 
 
 1 Who le- ^ ^®^''' ^i'''^out any new credit given to him, fresh bills excepted, or further 
 
 gallylia- sums advanced to the principal in consequence of it, is not equivalent to 
 
 tie. a payment of the money to the principal (c). But, in general, if the 
 
 Agents, money be paid over before notice to retain it, the agent is not liable (<Z)(2), 
 
 "■ unless his receipt for the money was obviously illegal, or his authority was 
 
 wholly void (e)(3). 
 
 Wiiere persons received money for the express purpose of taking up a 
 bill of exchange two days after it became due, and upon tendering it to 
 the holders, and demanding the bill, find that they have sent it back, pro- 
 tested for non-acceptance, to the person who indorsed it to them, it was 
 held, that such persons, having received fresh orders not to pay the bill, 
 were not liable to an action by the holder's for money had and received, 
 when, upon the bill being procured and tendered to them, they refused to 
 pay the money (/). A person, who, as a banker or agent, receives 
 money from A. to be paid to B., and to other different persons, cannot in 
 general be sued by B., for his share, unless he has expressly agreed to 
 [ "37 1 appropriate the money to the purpose for *which it was sent (|r). Nor 
 can an action for money had and received be maintained against a mere 
 bearer of money from one person to another (A) ; or a mere collector or 
 receiver who has bona fide paid it over (i) ; or against churchwarden to 
 recover back dues which, before the commencement of the action, had 
 been paid over to the trustees of a chapel, for whom it was received (/n) ; 
 or against an arbitrator to recover money deposited with him by a 
 bankrupt, subject to an award, and which money the arbitrator bona fide 
 paid over to the person whom he thought entitled to receive it, before 
 the issuing of the commission, and Without notice of the act of bank- 
 ruptcy (Z). But auctioneers and stakeholders are considered in the light 
 of trustees for both parties, and are bound to retain the money deposited 
 with them, until it be ascertained which of the parties is entitled to receive 
 them (m). ' 
 
 The agents of government are not in general liable upon contracts avow- 
 edly entered into by them in their ofificial capacity (4). Thus, neither the 
 governor of a fort or colony (»), nor a military commissary (o), nor the 
 captain of a regiment (/>), or ship (jf), is liable for goods ordered by him 
 
 (c) 3 M. & Sel. 844; Cowp. 565; Stra. (ft) 4 Taunt. 198. 
 
 480; 5 Taunt. 815. (t) 4 Burr. 1985; 4 T. R. 554, 555. 
 
 (rf) Cowp. 565; Burr. 1986; Ld. Raym, 
 
 (fc) 8 Taunt. 136. 
 
 (J.) 7B. &C. 101. 
 
 (m) 4 Burr. 2639; 7 Moore, 465. As to 
 deposits on legal or illegal wagers, see Chit, 
 jun. Con. 193; 7 Price, 640; 8 B. & C. 227. 
 
 (n) 1 T. R. 182; 2 Moore, 627. 
 
 (o) 1 T. R. 180. 
 
 1210; 4 T. R. 553; Stra. 480; Bui. N. P. 
 134; 10 Mod. 23; 2 Esp. Rep 607; 5 Moore, 
 105; 8 Taunt. 737. 
 
 (c) 1 Campb. 396,564; 3 Esp. Rep. 153 
 
 1 Stra. 480; Cowp. 69; 1 Taunt. 359. 
 if) I Moore, 64; see 14 East, 582, 590 
 
 2 Bing. 7; 9 Moore, 34, S. C. (p) 1 East, 136, 279. 
 (g) U East, 582; 7 Taunt. 339; 1 R. & (9) IT. R. 674. 
 
 M. 68; 3 Cromp. & J. 83; 1 Marsh. Rep. 132. 
 
 (1) Vide Campbell r. Hall, Cowp. 204. Hardacre r. Stewart, 6 Esp. 108. Hearsay j). Pruyn, 
 7 Johns. 170. Whitbread v. BrooUsbank, Cowp. 69. 
 
 (2) Vide Carew v. Otis, 1 Johns. 418. 
 
 (3) Or the payment was compulsory, and not made expressly for the use of the principal. 
 Ripley t;. Gelston, 9 Johns. 201; Mowatt v. M'CIellan, 1 Wend. 178; Mitchell i>. Bristol, 10 
 ib. 492. 
 
 (4) See ante, 85, note. 
 
IN POEM EX CONTBAOT0. — DEPENDANTS. 87 
 
 for the public service, in cases where he does not expressly pledge his in- n. 
 dividual credit and responsibility. Nor is the secretary of war liable to a """"d- 
 retired cleric of the war office for his retired allowance, although such al- 
 lowance was included in certain funds received by the defendant in his 1. Who le- 
 ofificial character (r). Nor are justices of the peace, contracting on behalf ?f^^ ^"^ 
 of the public for rebuilding a public bridge, under the provisions of an act Agents, 
 of parliament which provides a fund for the payment, liable to the con- &o. 
 tractor (s); and it seems that where a servant of the crown expressly con- 
 tracts on account of government, ho is not responsible, although the agree- 
 ment be under seal(<). 
 
 In Horsley v. Bell (m), a bill having been filed by the plaintiff, the nn- 
 dertalcer of a navigation, against the commissioners named in the act for 
 carrying it on, who had signed the several orders, it was contended, first, 
 that the defendants were not personally liable, because they were exercis- 
 ing a public trust, and the credit was given to the undertaking itself, and 
 not personally to them, and the remedy was therefore in rem; secondly, 
 that those who had been present at the meetings, and had signed some, 
 but not all the orders, were liable only to those which they had respective- 
 ly signed. But Lord Chancellor Thurlow, assisted by Ashhurst and Gould, 
 Justices, held, first, that *the commissioners were personally liable ; r 'gg I 
 and, secondly, they were all liable in respect of all the orders. Lord 
 Thurlow said, " Who would make a contract on the credit of toll, which 
 it is in the power of the commissioners to raise, or not, at their pleasure ? 
 Then upon whose credit must the contract be ? Certainly that of the 
 commissioners who act. It is their fault if they enter into contracts when 
 they have no money to answer them. They have made themselves liable 
 by their own acts." And this doctrine was confirmed in the recent case 
 of Eaton v. Bell (a;). It appeared that an enclosure act empowered the 
 commissioners to make a rate to defray the expenses of passing and exe- 
 cuting the act ; and enacted, that persons advancing money should be re- 
 paid out of the first money raised by the commissioners. Expenses were 
 incurred in the execution of the act before any rate was made. To de- 
 fray these expenses, the commissioners drew drafts upon their bankers, re- 
 quiring them to pay the sums therein mentioned, on account of the public 
 drainage, and to place the same to their account as commissioners. The >. 
 bankers, during a period of six years, continued to advance considerable 
 sums, by paying drafts ; and it was held, that the commissioners were 
 personally responsible to the bankers for the drafts so made. And a 
 churchwarden, who employs a person to make a plan of the church, in 
 order that the plan may be laid before certain commissioners for building 
 new churches, is personally liable to such person (3^). These cases appear 
 to have been decided upon the ground that the several parties sued had 
 within their reach the means of indemnifying themselves by making rates, 
 or out of funds in their hands or power («). And it has been decided that 
 vestrymen, who at a vestry meeting sign a resolution ordering the parish 
 surveyor to take steps for defending an indictment for not repairing a road, 
 
 (r) 7 Moore, 91; 2 B. and B. 276. S. C. (i) 5 B. and Aid. 34. 
 
 (s) 2 Moore, 621. (y) Brook v. Guest, N. P. Stafford, San^- 
 
 (0 1 T. B. 674; 2 Moore, 621. mer Assizes, 1826, cited 3 Biog. 481. 
 (a) 1 Bro. C. C. 101; Ambl. 770; Paley, (z) See 3 Bing. 483. 
 
 261. 
 
 Vol. I. 7 
 
.88 OP THE PAKTIES TO ACTIONS. 
 
 «• are not liable to the attorney employed by.;tlie surveyor ; because the con- 
 
 .DESEiiD- ,^m;t,of the business, relative :to the road was more peculiarly the province 
 
 1. Who of the surveyor, who could have afterwards charged the parish in his ac- 
 
 .JegalUjr Ua- count, and been reimbursed by a regular parish rate (a). The surveyor 
 
 '*' lof a turnpike road enaployed iby and acting by order of commissioners, 
 
 Agtnt?, .a,ppears not to be liable to persons who perform work in repairing the 
 
 ^- .road,; for in such case the surveyor is to be viewed in the light of a mere 
 
 servant of the commissioners (6). 
 
 Where the agent doQS not, at the time the contract is made, disclose 
 that he is acting merely as an agent, and the principal is unknown, the 
 latter may, when discovered, be sued upon the agreement (c). And the 
 r *39 1 iP'-'i'^'^ip^^ is also responsible for the price of goods *ordered by his agent, 
 ^ who disclosed that he was acting merely as such, but did not express who 
 
 his principal was, although the vendor had actually debited the agent 
 without inquiring the name of his employer ; for in such case the vendor 
 cannot be considered to have had the means of electing finally to give 
 credit to the agent only (c?). 
 
 But the principal is not liable upon the contract .of his agent,, if the 
 
 lother party to the agreement, with full knowledge of the facts, and the 
 
 power and means of deciding to whom he will give credit, elect to give 
 
 credit to the agent only, in his individual character (e) (1). 
 
 Pprtnert, At law, one partner or tenant in common cannot in general sue his co- 
 
 tenanU m paj^tner (2) or co-tenant, in any action in /orwi ex contractu (^f); but must 
 
 ^cTfuinff proceed by action of account (§■), or by bill in equity (3). This rule is 
 
 tach otter., founded on the nature of the situation of the parties, the difficulty at law 
 
 of adjusting complicated accounts between them, and the propriety, arising 
 
 from the supposed confidence reposed by the iparties in each other, of 
 
 their being eixamined upon oath, which can only be effected in a Court of 
 
 equity. Therefore, in the case of a partnership, whether it be a general 
 
 or particular partnership, one partner cannot at law recover his share of 
 
 •money received by the other on account of the firm, unless on a final bal- 
 
 anee of all kacco,unts la particular sum be found due to one ipartnier, which 
 
 I. 
 
 a) S Bing. 878. (e) 15 East, ,62; 4 Taunt. 674; 9 B. & C. 
 
 'i) 1 Bla. Rep. 670. As to liability of 89, 90. 
 
 ariistees of a turhpike road, 10 Bing. 283. (/) 2 T. R. 428; 2 B. & P. 124; 4 East, 
 
 IThe subscribers who attend la committee of 144; 4 Esp. R. 182; 2 Marsh. 319, i824; 1 
 
 a hospital are liable to the icredltors of isneh B. ,& C. 74; 8 Id. 345; 2 Crom. & Mees. 
 
 hospital, 7 Bing. 705. 361; 2 Bing. N. C. 108. But a partnership 
 
 (c) 15 East, 67; 4 Taunt. b76, note. Per must have been actually formed, 3 B. & C. 
 Xord Tenterden, 9 B. & C. 86. See ante, 34, 814. 
 
 36.36. (g) Bao.Ab. .Account, WiUes, 208. 
 
 (d) '9B. &C.78. 
 
 , XI) ^^ mte, 86 a. n. (1). Fetapsco Ins. Go. v. Smitb, 6 Har. & Johns. 171 ; Westmprs- 
 Hand D. Davis, 1 Alabama N. S. 2^9; French v. iPrioe, 24 Pick. 18. Abbott on Shipping, (flth 
 Am.cd.)135, 136, note. 
 
 (2) Murray v. Bpgert, 14 Johns. 318; Beach .v. Hotobkiss, 2 Conn. 425; Walker v. Long, 
 IZ't". A. Browne, 125; Dzeas v. Johnson, 4 Ball. 434; 1 Binn. 194; Young v. Brick, 2 Penn. 
 663; Course v. Prince, 1 Const. Ct. 413; Kennedy v. M'Fadon, 3 Har. & Johns. 194. Alikr 
 in Massachusetts, Bri^ham v. Eyveleth, Jones v. Harraden, 9 Mass. 688, 510; Bond v. Hays, 12 
 Mass. 84; Wilbey u. Phiniiey, 16 JMass. 112; Fanning v. Chadwick, 3 Pick. 420; Brinley r. 
 Kupfer, 6 Pick. 179; Westerloi). Bvettson, 1 Wend. 532; Farr «. Smith, 9 Wend. 338. 
 
 (8) Vide Nireu v. Spickerman, IS JcAtas. 401 ; Ozeas v. Johnson, 1 Binn. 191. 
 
BUfBHII- 
 
 AWa. 
 
 IN FORM EX CONTBACin. — DEPENDANTS. 
 
 the other expressly promises to pay (A); (1) (2) ; or unless ther9' be an 
 express covenant to account, &c. (*) 
 
 It has been held that assumpsit for money had and received may be j whVieL 
 maintained against one who had been a member of a benefit club, for giny liit- 
 money intrusted to his keeping by the rest of the society, in the' name of ^^•• 
 the officers properly appointed for managing their affairs, under the arti- ^'^^'J^i, 
 cles (&) (3).. So one joint contractor who pays, money for another, the a^hot^- 
 whole of which, or a particular part of which the latter had engaged to pay, 
 may recover it from the other as money paid to his use (^)(4), and if one of 
 two joint contractors refer the claim of a third person to! damages upon the 
 contract to arbitration,, and pay over the sum awarded to the claimant, 
 he may sue his co -contractor for money paid (w). In the case^ howeveff, 
 of a general unsettled account between partners, one who has been com- 
 pelled to pay the whole of a creditor's demand cannot sue his co-partner 
 at law (w). 
 
 In the case of a personal chattel, or of trees' severed from th© land, *if [ *40 3 
 one or two more joint-tenants, or tenants in common, by the sale there- 
 of, convert the thing into money, the joint interest is' determined, and each 
 hath a separate interest for a sum certain, and may support money had 
 and received against the other (o) (5) ; and one partaer may maintain an 
 action for money had and received, against the other partner for money re-^ 
 ceived to the separate use of the former, and wrongfully carried to the 
 
 (ft) 2T. E. 478; 2 Bing. 170; 3 Bing. 55, (I) 6 Taunt. 289; 1 Marsh. 603; 1 East, 
 
 56; 6 B. & C. 149. See 1 Holt, 368. 29; 8 T. R. 614; Rol. Abi. Aptioa sur le Caaej 
 
 (i) 2 T. B. 482; 7 Mod. 116; 13 East, 8, 24, pi. 31; 3 Camp. 168. 
 538; 2 Crom. & Mes. 361; 1 Bing. N. C. (m) 4 Moore, 340. 
 899; 2 Bing. N. C. 108. (n) 1 Stark. 78, 79. 
 
 (7c) 6 Price, 131. (o) Willes, 209; 8 T; K. 146. 
 
 (1) Vide Casey D. Brush, 2 Caines, 293; Halsted o. Sohenelzel, 17 Johns., 80; Westerid . 
 V. Evertson, 1 Wend. 532; Coarse v. Prince, 1 Const. 416. There need not be an express 
 promise in Pennsylvania. The action may be maintained if the accounts hare been settled and 
 
 a balance struck, which must be the act of both parties. Ozeas v. Johnson, 1 Binn. 191 ; La- 
 malire V. Caze, 1 Wash. C. C. 431. So, if one partner covenant to pay alldebts: due ft'ont the 
 partnership, he is liable for a debt due from the. partnership: toi one of the other eot-partnerS. 
 Hobart v. Howard, 7 MasSL804; Clough v. Hoffman, & Wend. 499. But it seems, tha-t in Penn- 
 sylvania since the act of 4th April, 1831, a claim for a, balance arising from partnership trans- 
 actions , may be set off in assumpsit, though such balance has not been, ascertained by auditors 
 in an action of account. M'Faddan v. Erwin, 2 Whart. 37. 
 
 (2) Where a balance has been struck between partners., an actiba lies without an expreu 
 promise to pay such balance. Wray «. Milestone^ 5 M. & W. 21. See Williiims v. Henshaw, 
 11 Pick. 82, S. C; 12 Pick. 378; Clark v. Dibble, 16 Wend. 603; Sally v. Capps, 1 Alabama, 
 N. S. 121; Barger v. Collins, 7 Har. & Johns;. 213; Chase v. Garvin, 19 Maine, 211; Gibson 
 V. Moore, 6 N. Hamp. 647'. CoMyer, Partn. (Perkins's edi) §, 281„note and cases cited; where 
 will be found the law as held in. the several states upon this subject. 
 
 (3) The decision in this case (Sharpe a. Warren-, 6 Price, 131) can only be sustained on the 
 ground that the Act of Parliament vested the right to: sue in the officers of the society.. 
 
 When a board of directors consists of sixteen, a joint action, against, four of the numher can- 
 not be maintained. Franklin Fire Ins. Co;, v. Jenkins, 3 Wend. 13(X Audi no action liesl by 
 one partner against another, except there has been a, settlement of accounts, audi promise to. pay 
 the balance. Nlven v. Spickerman, 12 Johns. 4iQl. 
 
 (4) Johnson v. Johnson, 11 Mass. 359;. Baehelder o. Fiske, 17 Mass. 464; Keith ut Easton, 
 21 Pick. 261, 262; Wiggin v. Suffijlk Ins. Co. 18 Pick 145, 153. Co-trespassers are not enti- 
 tled to contribution from each other. Campbell v. Phelps, 1 Pick. 62, 6.5; Vose v. Grant, 15 
 Mass. 505, 521. 
 
 (5) Vide Selden v. Hickok, 2 Cainesi, 166. One tenant in common cannot maintain assump- 
 sit against his co-tenant, or the guardian of his co-tenant, or the agent of such guardian, for a 
 portion of the rent received by either. The only remedy is, by action of accouat,. or bill in 
 equity. Sherman v. Ballou, 8 Cowen, 804^ One tenant in common cannot, like a partner, 
 sell the whol« interest of his co-tenant. If he do so^trover liea.V ^^'^ othei% _ Hyde. v. Stone^ 9 
 Cowen, 230. A tenant in common cannot recover for repairs' toithe l'and„witlioat a previous 
 
40 OP THE PARTIES TO ACTIONS. 
 
 n. 
 
 DETENII- 
 
 partnership account (;?) ; and a partner may recover money paid to his co- 
 Ism!^ partner for the purpose of being paid over, as the plaintiff 's liquidated share 
 1. Who le- of ^ ^®'^* to ^^^^^ joi'i* creditor, if it be not so applied, and the plaintiff be 
 gaily lia- obliged to pay such joint creditor (^q) (1). So, one of several co-sureties 
 ^^- in a bond, &c. who has been obliged to pay more than his proportion, may 
 
 &"s°uhfg ^^co'^^'^ against any one of the others his proportion of the money paid 
 each other, under the bond, <fec. (»-)(2). And an action at law is sustainable tore- 
 cover a contribution in the nature of general average by the shipper of 
 goods against another (js) (3;. And if there be not an actual partnership, 
 one of several parties interested in profits may in general proceed at law 
 against a person who has received his share ; thus, if a sailor engage on a 
 whaling voyage, and is to receive a certain proportion of the profits of the 
 voyage in lieu of wages, when, the cargo is sold he may maintain an action 
 for his wages against the captain, and shall not bo considered as a part- 
 ner (i) (4). And when the agreement between two does not .constitute a 
 partnership as between themselves, but only an agreement in favor of one, 
 as a compensation for trouble and credit, he may sue the other, though, as 
 between third persons, both might be liable as partners (u) (5). 
 
 It is an answer to an action that a party is legally interested in each side 
 of the question. A party cannot be both plaintiff and defendant in an ac- 
 tion (x) (6) . If therefore, one of the plaintiffs be also a member of the firm 
 
 (p) 2. T. R. 476. (s) 3 Campb. 180; 1 East, 220: 4 Taunt. 
 
 (g) 1 East, 20; 13 East, 7; 6 Taunt. 289. 123. 
 
 (r) 2 B. & P. 268, 270; 8 T. ll. 301, 614; {<) 4 Esp. Hep. 182; and see 3 B. & C. 814. 
 
 2 T. K. 100; 6 B. & C. 689; 1 Moore, 2. (a) 4 East, 144. 
 
 See the distinction in oases of tort, 8 T.K. 186; (a;) 2 B. & P. 124; 5 Chit. Bep. 539, S. 
 
 1 Campb. 343, 356; 2 Id. 452. But no part of C. ; 2 Marsh. 319; 6 Taunt. 597; see 9 B. 
 
 the costs paid or incurred by the one surety in & C. 356. This may be given in evidence 
 
 an action against him on the bond, &c. given, under the general issue,. 6 Bing. 197. 
 for the principal, is recoverable against the co- 
 surety by way of contribution, 3 C. & P. 467. 
 
 request to join in making the repairs. Mumford v. Brown, 6 Cowen, 475. Nor can the owner 
 of a chamber recover against the owner of the room on the lower floor and of the cellar, for con- 
 tribution, towards necesBary repairs of the roof of the house. Loring ti. Bacon,''4 Mass. 575; 
 Cheeseborough v. Green, 10 Conn, 818. 
 
 (1) Where one partner gives a promissory note to another partner, for the use of the firm, 
 the payee may maintain an action in his own name. Van Ness v. Forest, 8 Cranch, 30. But 
 if one partner pays the debt of his firm, it is not competent to the creditor to keep the debt alive, 
 and authorize such partner to enforce it against his co-partner. Le Page v. McCrea, 1 Wend. 
 1C4. 
 
 (2) Vide the People v. Duncan, 1 Johns, 311 ; Johnson v. Johnson, 11 Mass. 389; Richard- 
 son V. Piske, 17 Mass. 464; Crowders v. Shelby, 6 J. 3. Marsh, 270; Lidderdale v. Robinson, 2 
 Brock, 160; Harrison v. Ferguson, 2 Bailey, 897. The implied promise of a principal to in- 
 demnify his sureties is regarded as made to them jointly and severally ; and when they jointly 
 pay money for him, they may join in a suit against him, on such implied promise, for reim- 
 bursement. Appleton V. Bascomb, 3 Metcalf, 169, Pearson v. Parker, 3 N. Hamp. 366; Jew- 
 ettr. Cornforth, 3 Greenl. 107; Day v. Swann, 1 Shepley, (13 Maine) 165; Doolittle u.Dwight, 
 2 Metcalf, 561, But see Gould v. Gould, 8 Cowen, 168. 
 
 (8) As in the case of persons running a line of stages, where each has his separate portion of 
 the road, and provides horses and carriages at his own expense and risk. VVetmore v. Cheese- 
 borough, and Baker v. Swan, 9 John. 307. 
 
 (4) See 17 Mass. 206. 
 
 (5) Vide Muzzy v. Whitney, 10 Johns. 228; Dry v. Boswell, 1 Camp. 329. 
 
 (6) Wescott V. Price, Wright, 220; Graham v. Harris, 5 Gill. & Johns. 887; Eastman v. 
 Wright, 6 Pick. 316; Warren v. Stearnes, 19 Pick. 73 ; Livingston v. Livingston, 2 Con. Ct. 
 428; Portland Bank v. Hyde, 2 Fairf. 196; Griffith v. Chew, 8 Serg. & B. 30. And this rule 
 will operate, although the party appears on one side, in his personal, and on the other, in an ofS- 
 cial character. Pearson v. Nesbltt, 1 Dever. 315. See Justioes v. Bonner, 8 Dover. 288; 
 Thompson v. Page, 1 Metcalf, 566. 
 
ra POEM EX COKTBACTU. — DEFElfDANTS. iO a 
 
 against which the action is brought, upon a contract entered into by the firm «• 
 the action shall fail, although the other partners only be sued Qy}, And "*^ra°* 
 where the agent, employed in endeavoring to carry through Parliament a i. Who le- 
 bill for making a railway, sued the chairman of a committee of subsorib- E»iiy lit- 
 ers to the undertaking for his work and labor, and expenses incurred as partners 
 such agent, and it appeared that he himself was a subscriber to the under- &o. suing 
 taking, it was held the action *would not lie (z). And in assumpsit by A. **''^°*^'' 
 B: and C. against D. as of one of the indorsers of a promissory note, drawn L ^^ J 
 by B. in favor of himself and of the said C. andD. then in psirtnership, 
 and by them indorsed to the plaintiffs, a plea in bar that C. one of the plain- 
 tiffs is liable'as an indorser, together with the defendant, was held good on 
 special demurrer (.a) ; and in an action by several as. executors, a plea in 
 bar that the promises were made by the defendants jointly with one of 
 the plaintiffs, is sufficient (6). So if A. an attorney, and A. and C. 
 were members of a trading company, and after the dissolution of that 
 company, B. and C. be sued by creditors of the company and retain A. 
 to defend the action, the latter being, as a member of the company, jointly 
 liable to contribute to the expense of defending those actions, cannot sue 
 B. and C. for his bill of costs (c). 
 
 • A lunatic is liable for goods suitable to his rank, supplied to him upon a 
 contract, which a person, not aware of his infirmity, bona fide enters into 
 with him (d). 
 
 ' A contract, whether it be by specialty or not, is either joint, or it is 2diy. With 
 several ; or parties may bind themselves jointly and severally. It would be reference 
 a pursuit foreign to the object of this Treatise, to detail the various inStan- fj^g/'^^' 
 ces in which contracts shall be considered to entail upon the parties a joint fendants, 
 or separate responsibility (is). The rule is, that several persons contracting »•><! who 
 together with the same party, for one and the same act, shall be regarded ™^' 
 as jointly and not individually or separately liable, in the absence of any 
 express words to show that a distinct as well as entire liability was intend- 
 ed to fasten upon the promisors (/). This rule is more particularly obvi- 
 ous in the case of promises implied by law. But in the case of parties de- 
 mising or granting the separate interest of each in an estate, it seems, that 
 the covenant implied by law from the word " demise," or. even an express 
 covenant by the two, without express words of severalty, shall be considered 
 co-extensive with the interest granted, and therefore shall be several where 
 a several interest is granted, and joint, if a joint estate be granted (g"). 
 
 (y) Id. dine together at a tavern, they am prima facie 
 
 (z) 1 B. &■ C. 74; 2 D. & E. 196, S. C. jointly liable for the whole bill, and not merely 
 
 (o) 2 B. & P. 120 ; 5 Marsh. 329; see 8 B. each for his own share; but each of the offi- 
 
 &: C. 345. oers of a regimental mess is only separately 
 
 (i) 2B. &P. 124, note (c); 6 Moore, 322; liable for his own share, 8 Campk 51, 58, 
 
 1 "Went. 17, 18. 168; 2 Campb. 640. As to who are partners, 
 
 (c) 7 B. & C. 419. in general, see 3 Chit. Com. Law. 231. As to 
 
 (d) 5 B. & C. 170. joint stock companies, 10 B. & 0. 128, 288. 
 
 , (c) SeeBac. Ab. Obligations; 1 B. & C. (/) Freem. 248; 7 Mod. 154; S. C. in 1 
 
 682; Piatt on Gov. 115. Persons may be Salk. 393; see Plat, on Gov. 117, 118. 
 joinWy liable, as partners, either as having (§■) See 1 Show, 79; S. C. in Carth, 97; 
 
 expressly contracted, oir by holding themselves 1 Salk, 137; Comb. 163; Noy, 86; 6 Bing. 
 
 out to this world as such, or by a participation 656. 
 in the loss or profit, 16 East, 174; Dougl. 
 878; 2 H. Bl. 246, 247. If several persons 
 
 But the treasurer of a parish may, under stat. of Mass. 1717, oh. 14, Rev. stat. ch. 100, 
 § 26, sue his predecessor's executor on a promise made by him to himself ai treasurer. Packard 
 e. Nye, 2 Metoalf, 47. 
 
43 * OF THE PASTIES TO ACTIONS. 
 
 II 
 
 BEFSND- 
 
 *First, where there are several parties, if their contract he joiwt, they 
 ,^„«o. ^""^^^ ^ ^^ made defendants (A) (1), although they subsequently arrange 
 TnS. ' amongst themselves that one only of them shall perform the contract(t) (2). 
 ]. Who to- And a partner who retires from a firm is liable for the old debt, although 
 8^Uy ha- ^^^ ^^^^ ^^ carried by the consent of the creditor to the account of the re- 
 Partners, maining partners, and he take their bill of exchange ; there being no actual 
 &c. BuiDg satisfaction or release of the responsibility of the retiring partner(A;). When 
 Jolat°(am* ^^ insurance has been made for the benefit of several, a jury may infer a 
 tract. joint contract to pay the broker (J). Where it appears from an instrument 
 that a promise by two contractors is intended to be joint, it may be treat- 
 ed as such, although the promise be in terms several only (m) . 
 
 A contract made by two partners to pay a sum of money to a third 
 person equally, out of their own private funds, is a joint contract, and they 
 should be jointly sued upon it (») (3) ; but if A. lease for years to B. 
 and C, rendering rent, and 0. assign bis moiety to D., A. may sue B. 
 and D. jointly or severally, at his election, for rent in arrear (o). And 
 where two several tenants of a farm agreed with a succeeding tenant to 
 refer certain matters in difference respecting the farm to arbitration, and 
 jointly and severally promised to perform the award, and the arbitrators 
 awarded that each of the two should pay a certain sum of money to the 
 third, it was decided that they were liable to be sued jointly for the sums 
 awarded to be paid by each ; because, by the terms of the agreement they 
 had promised jointly as well as severally, which made each of them lia- 
 ble for the act of the other (j»). Parceners should, before partition, be 
 jointly sued, though they be entitled to the estate by different descents(g'). 
 
 (A) 1 Sannd. 153, n. 1; 291 b. note 4. (ra) 1 Hen. Bla. 236. 
 
 (J) 3 B. & Aid. 611 ; 1 H. Bla. 286; 2 B. (o) Palm. 288; 2 Vin. Ab. 66, 67; 2 Saund. 
 
 & B. 38; see 9 Bing. 297. 182,. note 1; Cro. Jac. 411. 
 
 (fc) 5 B. & C. 196. (p) 7 T. R. 852; 2 Saund. 61 h. note 2.. 
 
 \l) 2 Bing. 156; and as to where two 'over- \q) Vin. Ab. Actions, Joinder, p. d. Pw- 
 
 seers are jointly liable, 1 Adol. & Ell. 691'. ceners. Kep. temp. Hardw. 398, 399. 
 
 (m) Lee i;. Nixon, Nev. & Man. 441. 
 
 (1) M'Call V. Price, 1 M'Cord,82. 
 
 Where several are indebted for labor, and a third pays the creditor, at the request of one of 
 them, all may be sued for money paid. Tradesman's Bank v. Astor, 11 WendeU, 87. In Teib- 
 nessee, by statute, a'creditor may sue any one or more joint-obligors, or partners; and such suit 
 is no bar to a suit subsequently brought against the remaining partners or obligors. Lowry v. 
 Hard wick, 4 Humph. 188. 
 
 (2) Where a severance is made of a joint claim, by a party liable to it, by his paying to one 
 or more his or their proportion of the interest, the others may bring their separate actions 
 against him. Beach v. Hotchkiss, 2 Conn. 697, ante, 9, in note. See Baker v. Jewell, 6 Mass. 
 460; Austin v. Walsh, 2 Mass. 401. But an agreement by the plaintiffs to sever will not con- 
 stitute a severance without the defendants' consent. Peters v. Davis, 7 Mass. 257. When one 
 person contracted in writing with three persons to give a bill of sale of two-thirds of a vessel to 
 two of them, and of one third to the other, and, in pursuance of the contract does convey two- 
 thirds, this is not a severance of the caase of action, and a suit may be sustained for the price 
 against the whole. Marshall v. Smith, 15 Maine, (8 Shepley,) 17. 
 
 (3) A covenant in a lease to two persons, as tenants in common that the lessees shall pay the 
 rent, is a joint covenant, notwithstanding their several interests. Phillips v. Bonsall, survivor 
 4'c., 2 Binn. 138. If a partner purchase goods for the partnership account, but on his individ- 
 ual credit, he may be sued alone. Sylvester and another v. Smith, 9 Mass. 119. And if a 
 partner raise money by way of discount, on a bill drawn by himself individaally, the lender 
 cannot resort to the partnership either in an action on the bill, or an implied assumpsit, although 
 the proceeds of the bill were carried to the partnership account. Emly and others v. Lye, 15 
 East, 7. But where a partner raises money for the use of the partnership by drawing bills of 
 exchange upon the firm, although the partners are not jointly liable Upon an unaccepted bill, yet 
 they are jointly liable as for money lent, or money had and received. Denton and others v. Bodie 
 and another, 6 Campb. 493. If one partner make a warranty in a sale, an action may b« sustained 
 against him, without joining his co-partner. Clarke v. Holmes, 8 Johns. 148. 
 
IN FOEM EX CONTRACTU. — DEFENDANTS. 42a 
 
 Joint contractors must all be sued, althougih one has become bankrupt, «• 
 
 DEFEND- 
 ANTS. 
 
 and obtained his certificate, for if not sued, the others may plead in abate- 
 ment (»•). In the case of a joint contract, if one of the parties cannot j whole- 
 be arrested or served with process, and a plea in abatement be appre- gaily li?r 
 hended, the only safe course is to proceed to outlawry against him (1) ; % 
 and even then, if after outlawry and interlocutory judgment against the Pftrtnew, 
 defendant who was served with process, he die, no proceedings at law eacliotiL"r. 
 against his executors are sustainable, the debt still continuing to be joint(s). r *43 ] 
 
 It seems that mere dormant partners (/) (2), and nominal partners 
 having no interest («) need not necessarily be joined as defendants ; more 
 especially if tke right or interest of the plaintiff might otherwise be 
 varied or affected (3). And in the case of infants, or married wo- 
 men (a;), contracting jointly with other persons competent to enter into 
 agreements, it is a ground of nonsuit to sue them with the persons who 
 are legally responsible. Their names should be omitted, and if the de- 
 fendant plead the nonjoinder in abatement, the plaintiff may reply the 
 infancy or coverture (y). If one or more of several partners originally ' 
 
 jointly liable has taken the case out of the statute of limitations as to 
 himself only, by promising or acknowledging the debt, then the action 
 should be only against him, and not against him and his co -partner, who 
 has been discharged from liability (z). 
 
 In the case of defendants, if one of the parties originally bound be 
 dead, it is not necessary to notice him in the declaration, and the sur- 
 vivors need not be declared against as such, but may be sued as if they 
 alone were the parties primarily liable (a) (4). 
 
 Secondly, Where the covenant or promise is so framed that it does not Several 
 confer upon the plaintiff a remedy against the contractors jointly, but each contract, 
 is only separately responsible for his own act, it is essential to sue them 
 distinctly ; but where it appears upon an instrument that a promise by two 
 contractors was intended to hQ joint, it may be treated as such, although 
 the promise be in terms several only, (b (5). 
 
 (r) 2 M. & Sd. 23, 444; 6 Taunt. 178; 4 (u) 2 Campb. 302; 14 Bast. 210; 1 Stark. 
 
 Taunt. 826; post, SS. 26; 1 Marsh. 246. See as to plaintifis, 10 B. 
 
 (s) 1 M. & Sel, 24:2,sed quare. & G. 20, and ante, 12. 
 
 it) 3 Price. 538; 1 Stark. K. 272, 338; 8 (i) 8 Esp. Rep. 76; 5 Id. 47; 4 Taunt. 
 
 la. 8; Holt, N. P. C. 253; 4 M. & Sel. 475; 468; 1 Wils. 89. 
 
 1 M. & M. 88; 1 D. & K. 584; 4 Id. 240, (j) Id. but see 3 Taunt. 807. 
 243; 10 B. & C. 128, 288; Demantort v. (z) See 9 Geo. i, c. 14, s. 2. 
 Saunders, 1 Bar. & Adol. 898, overrules 5 (o) 1 B. & Aid. 29; 3 B. & B. 302. 
 Taunt. 609. As to a dormant partner suing, (i) Lee v. Nizon and another, 3 Nev. & 
 see ante, 12, 13; and 10 B. & C. 20. Mann. 441. 
 
 (1) In Pennsylvania, there is no outlawry in civil cases — the return of non est inventus has, 
 in pleading, the same effect. Dilman t. Shaltz, 5 Serg. & Bawle, 85. 
 
 (2) The New York Dry Dock Co. v. Treadwell, 19 Vend. 525; Mitchell o. Dall, 2^Harr. & 
 Gill, 159. 
 
 (3) But vrhere there are dormant partners in a firm, and that fact being unknown to the 
 jflaintiff, he brings his action against the ostensible partner or partners, upon a cause of actiofl^ 
 on which the whole firm are liable, and recovers a judgment, which is unsatisfied, this may u^T 
 pleaded in bar to a subsequent suit upon the same cause of action, in which he joins the ostev- 
 sible and dormant partners as defendants. Kobertson v. Smith, 18 Johns. 459 ; Ward v. John- 
 Bbto, 13 Mass. 148; Smith v. Black, 9 Serg. & Rawl. 142; Moale v. HoUins, 11 Gill & Johns 
 11'; Willings v. Consequa, 1 Peters C . C. 306 ; Anderson v. Levan, 1 Watts & Serg. 334; 
 Pierce v. Kearney, 5 Hill, 94. But see Sheehy v. Mandeville, 6 Cranch, 253 ; Dennett v. Chick, 
 
 2 Greenl. 193, 194; Ward v. Hotter, 2 Kobih, (Virg.') .566; Watson v. Owens, 1 Plohardson, 
 (S. C.) Ill ; Brozee 17. Poyntz, 3 B. Monroe, 178; Scott v. Colmesnil, 7 J. J. Marsh. 416; 
 Cbllyer, Part. (Perking'sed.) sect. 675 in note. • ■ - 
 
 (4) Mott V. Fetrie, 16 Wend. '816; but it is more formal to do so. H ins v. BoeKwell, 
 SDuer. (!N.T.9'e60. 
 
 (6) Einaly v. Sh«nberger, 7 Watt, 198. 
 
OF THE PARTIES TO ACTIONS. 
 
 II. 
 
 DEFEND- 
 
 A»T3. 
 2. Who 
 
 should be 
 joined or 
 omitted. 
 Joint and 
 several 
 contract. 
 
 Thirdly, "When the contract is several as -well as joint, the plaintiff is 
 at liberty to proceed against the parties jointly, or each separately, 
 though their interest be joint (c) (1). But if there be more than two 
 parties to a joint and several contract, as where three obligors are jointly 
 and severally bound, the plaintiff must either sue them all jointly or each 
 of them separately (d) (2) ; though if two only be improperly sued, the 
 objection should be taken by plea in abatement or by writ of error if the 
 defect appear on record, and it is not a ground of nonsuit (e) (3). 
 WAere parties are sued separately, on a joint and several engagement to 
 do a certain act, the breach may be assigned in both (/) ; and a 
 recovery (4), and execution against the body of one, producing 
 
 (o) Bao. Ab. Obligation, D. 4; 1 Saund. 
 153, note 1; 2 Burr. 1190; Poph. 161. In 
 what coses the court will restrain a party from 
 proceeding in several actions on bail bond, 2 6. 
 & A. 598. And as to the consolidation of ac- 
 tions, see Tidd, 9th ed. 614. Semble, that a 
 creditor cannot sue jointly and separately at 
 the same time, 1 Ves. & B. 66. And where 
 separate actions were brought against several 
 persons for the same debt, who (if at all) were 
 
 jointly liable, the defendant in one action hav- 
 ing paid the debt and costs in that action, the 
 court stayed the proceedings in the others 
 without costs, 6 B. & C. 124. 
 
 (d) 3 T. R. 782; Bac. Ab. Obligation, D. 4; 
 1 Saund. 291 e.; 2 Vin. Ab. 68, pi. 7; Piatt 
 on Gov. 134. 
 
 (c) 1 Saund. 291 e. ; 2 Taunt. 254. 
 
 (/) 1 Stra. 553; 2 Burr. 1197. 
 
 (1) Wright V. Hickson, Brayt. 22. 
 
 (2) Minor v. Mech. Bank of Alexandria, 1 Peters, 73; Bangor Bank v. Treat, 6 Greenl. 207; 
 Merrick v. Trustees, 8 Gill. 59. Vide Cutter v. Whittemore, 10 Mass. 446; Carter v. Carter, 2 
 Day, 442. On a note given by several for a sum to be paid in the following proportions, viz. 
 half by A., one sixth by B., one sixth by K., &c. several actions must be brought against each, 
 and not a joint action ,ainst all. M'Bean v. Todd, 2 Bibb, 320. And if a joint and several 
 promissory note is maac by one of the members of a firm in the partnership name, and .by an 
 other in his individual character, a suit may be maintained against the firm, without joining 
 the other maker of the note; it being the note of the firm, and not of the individual composing 
 it, so far as the remedy to enforce payment was concerned. Partners cannot be individually 
 sued for a partnership debt. Each partner is bound for the whole until the debt is paid; but 
 payment can be enforced only by a joint action against all. Their responsibilities are joint only 
 and not joint and several, so as to subject each to a separate action. Robertson v. Smith, 18 
 Johns. 459 ; Henry Van Tine v. Crane, 1 Wend. 524. 
 
 A contract under seal, purporting by its terms to be between two firms in their partnership 
 names, and the partnership name of one firm is subscribed to the contract, and that of the 
 other firm is subscribed to a counterpart thereof, held, that an action could be 'maintained 
 against the member of the firm individually, who subscribed the name of his firm, unless he 
 shows his authority to bind his co-partners in that manner. And such action may be sued in 
 the joint names of the partners with whom the contract is made, although but one of the firm 
 signed the counterpart, in the name of the firm; and although no authority be shown author- 
 izing him to sign the name of his firm to a sealed contract. Gates v. Graham, 12 Wend. 53. 
 
 In Mississippi the law allows an action of debt to be maintained against one of the parties to 
 an obligation under the hands and seals of two persons. Sogers v. Batchellor, 12 Peters, S. C. 
 221. 
 
 (3) Bangor Bank v. Treat, 6 Greenl. 207. 
 
 (4) Minor v. Mech. Bank, 1 Peters, Sup. Ct. 46; Vide Meredith v. Duval, 1 Mun. 79; Lefl>- 
 wich V. Berkeley, 1 Hen. & Mun. 61. But by the Ifew York statute for the amendment of the 
 law, sess. 36, c. 56, s. 14. 1 B. L. 521, it is enacted that all or any part of the obligors in a 
 joint and several or several bond or recognizance may be joined in one action, and if the whole 
 amount due shall not be levied in such suit, a further action may be brought against the residue 
 of the obligors jointly or severally; but no more than the debt and damages due, with costs of 
 suit.'can be levied; the plaintiff may at any stage consolidate the suits; and where more than 
 one suit is depending at the same time, on one bond, recognizance, promissory note or bill of ex- 
 change, he can recover costs of writs issued into several counties, against defendants residingin 
 different counties. See as to actions against joint debtors, 2 Bev. Laws, 277. In Pennsylvania, 
 by the provisions of the Act of April 6th, 1830, entitled " An Act for the furtherance of justice 
 between obligors and obligees, and other creditors and debtors," it is provided, " that in all 
 suits now pending, or hereafter brought in any court of record in this commonwealth, against 
 joint and several obligors, co-partners, promisson or the indorsers of promissory notes, in which 
 thewrit or process has not been, or may not be served on all the defendants, and judgment may 
 be obtained against those served with process, such writ, process, or judgment shall not be a 
 
IN FORM EX CONTRACTU. — PLAINTIFFS. '44 
 
 no actual satisfaction, will be no bar to an action against the other (&)(!). "■ 
 And when the contract is joint and several, and the debt or demand "Yi^" 
 considerable, it is most advisable to proceed separately, for if all the 2. Who' 
 parties be joined, and one of them die after judgment, and before exe- should be 
 cution, the remedy at law against the personal estate or assets of the de- ^o'^jt^a' 
 ceased is determined (/) (2) ; and in the case of the death of a surety 
 even a court of equity will not in all cases relieve (rri) ; whereas if the 
 plaintiff proceed separately, the executor of the deceased, as well as the 
 survivor, continue severally liable at law(M). In general, when aeon- 
 tract is joint and several, if the debt l)e considerable, it is most advis- 
 able to proceed separately, so that the creditor may thereby retain 
 his legal remedies against each in case of death of one or more of the ' 
 parties. 
 
 Mis-joinder. It has been already observed, that at law, as well as 
 in equity, the courts will not take cognizance of distinct and separate 
 claims or liabilities of different persons in one suit, though standing in the 
 same relative situations (o). And, therefore, in an action ex contractu 
 against several, it must appear on the face of the pleadings that their con- 
 
 (/f) Cro. Jae. 74; 5 Co. 86; 3 Mod. 87; 2 (m) Id. Ibiil.; 3 Ves. 399; 2 Ves. sen. 108, 
 
 ShoiT. 494. 171. 
 
 (0 Com. Dig. Pleader, 3 L. 3, Action, K. («) 2 Burr. 1190. 
 
 4; Bac. Abr. Obligation, D. 4, vol. v. and vol. (0) Ante, 8 to 10; 1 East, 226, 227; I 
 
 vii. Obligation, B.; 2 Saund. 50 a, 51, (4); Mad. 88, 89. 
 Tidd. 9th edit. 1121; 1 Bing. 138. 
 
 bar to recovery in another suit against the defendant or defendants not served with process, and 
 that from and after the passing of this act, in all cases of amicable confession of judgment by 
 one or more of several obligors, co-partners, or promissors, or the indorsers of promissory notes 
 such judgment shall not be a bar to recovery in such suit or suits as may have to be brought 
 against those who refuse to confess judgment." Purd. Dig. 481. 
 
 (1) See U. States v. Cushman, 2 Sumner, 310; Trafton v. U. States, 3 Story C. C. 646; Si- 
 . monds v. Center,' 6 Mass. 18; Gratz v. Stump, Cooke, 494; M'Mahony v. Murphy, 1 Bailey, 
 -.635; King ». Hoare, 13 Mees. & Welsh. 494; Lechmere v. Fletcher, 1 Cromp. & Mees. 623; 
 Higgens's case, 6 Co. Rep. 44 — 46. " In such case," Mr. Justice Wilde observed, in Ward ». 
 Johnson, 13 Mass. 151, " the separate judgments amount in substance to the same as a joint 
 judgment against all the promisors. In both cases, each defendant is liable for the whole debt, 
 and payment by one will discharge the others." In Trafton v. United States, 3 Story C. C. 646, 
 Mr. Justice Story proceeded farther, and held that, where a contract is both joint and several, a 
 judgment against both contractors is not a bar to a several action against either one of them; 
 and a several judgment against either is not a bar to a joint judgment against both. See 
 also to the same effect, U. States v. Cushman, 2 Sumner. 426. But see Ex parte Eowlandson, 
 8 P. Wms. 405; Cabell v. Vaughan, 1 Saunders, 291 f ; King v. Hobbs, Yelverton, 26, 27, and 
 Mr. Metoalf's note(l). In some of the States, all partnership contracts are joint and several 
 by statute. See How and Hutch, Miss. Laws ch. 45, § 29, p. 595. In Alabama an action 
 may be prosecuted against any one or more of several partners jointly liable. Laws of Ala. 
 (1823), p. 449. See McLain v. Carson, 4 Arkansas, 164; Lyons v. Hamilton, 1 Howard, 
 (Miss.) 474; Fairchild v. Grand Gulf Bank, 5 ib. 597; Lowry v. Hardwiok, 4 Humph, (Tenn.) 
 188. But where the debt is joint only, a judgment against one joint contractor would be a bar 
 to an action against another; because the latter might plead that he made no promise, except' 
 with the former. King v. Hoare, 13 Mees. & Welsh. 494; Maule, J. in Bell v. Bankes, 3 Man. 
 &Grang. 267; Bayley, J. in LeQhmere v. Fletcher, 1 Cromp. & Mees. 634; Story, J. in United 
 States V. Cushman, 2 Sumner, 437 — 441; Trafton v. U. States, 3 Story C. C. 646; Pierce o. 
 Kearney, 5 Hill, (N. T.) 86; Ward »< Johnson, 13 Mass. 148. 
 
 As to the effect of a judgment recovered against an ostensible partner of a firm where tjie 
 other partners are dormant, see ante, 42, 43 in note. 
 
 (2) Comm. v. Miller, 8 Serg. & Eawle, 452. Vide Foster v. Hooper, 2 Mass. 572. But by 
 a statute passed 26th February, 1800; his assets are rendered liable in the hands of his execu- 
 tors or administrators. 8 Laws Mass. 69. And see the statute of the State of New York, cited 
 above, note (1), which authorizes the plaintiff to prosecute the action against all or any of the 
 obligors to judgment and execution against the defendants, and against their joint and teparate , 
 property, and in an action against the residue of the obligors to prosecute the same to judgment 
 and execution against the said residue, anei againtt their joint and separate property. Judgo 
 
 Vol. I. 8 
 
44 a OP THE PARTIES TO ACTIONS. 
 
 "• tract was joint (1), and that fact must also be proved on the trial. If too 
 "iHrn"' ^^'^y persons be made defendants, and the objection appear on the plead- 
 2. Who' i"g^' either of the defendants may demur, move in arrest of judgment, or 
 should be support a writ of error (ji) ; and even if the objection do not appear upon 
 joined or the pleadings, the plaintiff may be nonsuited u^on the trial, if he fail in 
 omitte . proving a joint contract (^)(2). Although in actions for torts one defend- 
 ant may be found guilty, and the other acquitted, yet in actions for the 
 breach of a contract, whether it be framed in assumpsit, covenant, debt, 
 or case, a verdict or judgment cannot in general be given, in a joint action 
 against one defendant without the other (r). In an action of assumpsit 
 against three persons, two only of whom were liable to be sued, the party 
 not liable, together with one of those who were liable, suffered judgment by 
 default, and the other party pleaded the general issue, and a verdict was 
 found for the defendant who pleaded, on the ground that the plaintiff hav- 
 ing declared as upon a promise by three defendants, to entitle himself to 
 r "45 ] recover, he should have proved a promise, either *express or implied, 
 binding upon all the three (s) ; and where the plaintiff declared on a joint 
 and several promissory note, against all the makers jointly, and one of 
 them, by his plea, admitted his hand-writing to the note, but the other de- 
 fendants pleaded non-assumpsit, the plaintiff was nonsuited, for not proving 
 the hand-writing of the defendant, who by his plea had so admitted it (f). 
 And though a contract be proved to have been in fact made by all the de- 
 fendants, yet if in point of law it was not obligatory on one of the defend- 
 ants, either on the ground of infancy or coverture, at the time it was en- 
 tered into, the plaintiff will be nonsuited, and in this instance he cannot 
 avoid the objection by entering a nolle prosequi as to the infant or feme 
 covert (m)(3) ; but must discontinue and commence a fresh action, omit- 
 ting such parties ; in 'which case should the defendants plead the non-join- 
 der of the infant or feme covert in abatement, the plaintiff may reply the 
 infancy or coverture (x). But when one of the defendants is discharged 
 
 (p) 7 T. E. 352. (r) 1 Lev. 63; 2 New Kep. 865. 454; 12 
 
 (q) I East, 52; 1 Lev. 63; 1 Esp. Hep. East, 93, 454; oZiier in case against a carrier; 
 
 363; Bui. N. P. 129; 1 H. Bla. 37;2N. K. and as to parties to actions ei delicto, see 
 
 365, 454; 12 East, 94, 454; 2 Taunt. 49; 2 post. * 
 
 Campb. 308; 6 Car. & P. 515, and the Court (s) 1 East, 52; 3 T. R. 662; 1 Lev. 63. 
 will not permit the striking out the names of (t) 1 Esp. 135. 
 one or more defendants to cure the defect, ib. (u) .Snte, 44. 
 
 ibiit. The same rule prevails under a joint (i) 4 Taunt. 468, 470; Sid. SOI; 14East, 
 
 commission of bankruptcy. Cooke's Bank. 214; 3 Esp. Kep. 76; Vin, Ab. Actions, 
 
 Law, 6, 7. Joinder, D. d. pi. 8; 6 Esp. Hep. 47. 
 
 ment was recovered against A., one of two joint makers of a promissory note : the plaintiff 
 brought an action afterwards against A. and B. the other maker, on the same note, B. pleaded 
 separately the recovery against A. ; the plea was held bad. Sheehy v. Mandeville and Jameson, 
 6 Cranch, 253. See, however, the remarks of Ch. Justice Spenoek upon the case of Sheehy v. 
 Mandeville, 18 Johns. 482. 
 
 (1) Waloott V. Canfield, 3 Conn. 198. 
 
 (2) Manahan v. Gibbons, 19 Johns. 109. Vide Jackson v. Woods, 5 Johns. 280, 281. Tom 
 1). Goodrich, 2 Johns. 213. Livingston v. Tremper, 11 Johns. 101, Elmendorph v. Tappan, 6 
 Johns. 176. Burnham v. Webster, 5 Mass. 270. Where a suit is brought against several 
 joint debtors, a recovery must be had against all or none, unless one or more of the defendants 
 interpose a personal defense, such as infancy or bankruptcy, Kimmel v. Shultz, Breese, 128. 
 See Blight v. Ashley, Petter, C. C. 16; Ewin d. Divine, 2 Monroe,' 124; Jenkinsu.Hunt, 2 Rand. 
 446; Tuttle v. Cooper, 10 Pick. 281 ; Browne v. Warner, 2 J. J. Marsh, 38. 
 
 (3) Vide contra Hartness jj. Thompson, 6 Johns. 160; Woodward u. Newhall, 1 Pick. 500; 
 Niles V. Drake, 17 Pick. 516; Cutts v. Gordon, 13 Maine, 474; Judson v. Gibbons, 5 Wendell, 
 228, 229; CoUyer, Partn.HPerkins's ed.) § 720, and notes; Allen v. Butler, 9 Vermont, 122. 
 See 20 Johns. 160, 161; Bobertsonv. Smith, 18 Johns. 469; Kimmel v. Shaltz, 1 Breese, 128; 
 Shields v. Perkins, 2 Bibb. 227; Brown v. Warner, 2 J, J. Marsh, 88; Tuttle v, Cooper, 10 
 
IN POEM EX CONTRACTU. — ^DEFENDANTS. 4S 
 
 from liability by matter subsequent to the making of the contract, and «■ 
 
 ddehd- 
 
 ANTS. 
 
 which operates only to protect him individually, leaving the contract in 
 other respects in lull force, as by bankruptcy and certificate, or by the g who 
 order of the Insolvent Court, the failure on the trial as to him on that should be 
 ground dpes not preclude the plaintiff from recovering against the other joined or 
 parties, or a woWe prosequi as to him may be entered, upon hisplea of his o""'"™* 
 personal discharge (2/). And by virtue of the late statute (z), the suc- 
 cess of one defendant upon the Statute of Limitations shall not defeat 
 the action against another defendant who has admitted the claim within, 
 six years. In debt on a penal statute at the suit of a common informer, 
 or of the party aggrieved, for an ofifence which may be committed by sev- 
 eral jointly, the plaintiff will succeed if he prove either of the defendants 
 to be liable ; for in this case the action, though in form ex contractu, is 
 founded upon a tort (a) (1). So against executors, though tlie plaintiff 
 may fail as to one, on the plea of plene administravit, he may recover 
 against the other, and the defendant who is acquitted is not even entitled 
 to costs (6). 
 
 As the consequences of the joinder of too many defendants, in an ac- 
 tion founded on a contract (f), are in general so important, it is *advisable r "46 ] 
 in cases where it is doubtful how many parties are liable, to proceed only 
 against those defendants who are certainly liable, in which case we shall 
 see the non-joinder can only be taken advantage of by a plea in abate- 
 ment (d) (2). 
 
 Non-joinder. — With respect to the mode of taking advantage of the 
 omission of a party wlio ought to be madb a co-defendant, there is a ma- 
 terial distinction between this case, and that of co-plaintiffs. We have 
 seen that if a person who ought to join as plaintiff be omitted, and the 
 
 (y) 1 Wils. 895 1 Saund. 207 a, n. 2; 8 in case for the breach of a contract, the de- 
 
 Esp. Bep. 77; 2 M. & Sel. 23, 444. If the fendant cannot plead in abatement that ano- 
 
 general issue also be pleaded by the defend- ther person was liable , nor is it a ground of 
 
 ant, who sets up his bankruptcy or insolven- nonsuit that too many defendants were joined 
 
 ej, a nolle prosequi cannot be entered. For in the action; but since the cases in ^ New 
 
 the entry of a nolle prosequi against one de- Bep. 365, 454, and 12 East, 95, 454; 8 B. & 
 
 fendant, who pleads the general issue in an B. 54,171; 6 Moor, 141, 154, 158; 2 Chit.' 
 
 action ex contractu against several, discharg- Bep. 1, it should seem that the form of action 
 
 es all, see Tidd, 9th edit. 682, 896. cannot vary the right of defence; and that 
 
 (z) 9 Geo. 4, 0. 14, s. 1. therefore in an action on the case founded 
 
 (a) Carth. 361; 2 East, 569; 1 New Bep. merely on contract, the joinder of too many 
 246.; 3 East, 62. ° would be as fatal as iu assumpsit. In 
 
 (b) Tidd's Prac. 9th edit. 986; 1 Saund. an action upon the case against publio car- 
 207 a, b note. riers for negligence, the non-joinder of a party 
 
 (c) According to the case of Govett v. Bad- cannot be pleaded in abatement, ib.; 2 Chit.- 
 nidge, 3 East, 62, when the plaintiff declares Bep. 1; see post. (,d) Infra. 46. 
 
 Pick. 291 ; Connolly v. Hull, 3 M'Cord, 6. A plea in abatement that the defendant made the 
 promise jointly with another, is supported by evidence that the promise was made by the de- 
 fendant jointly with an infant. Gibbs v. Merrill. 8 Taunt. 307. Burgess u. Merrill,^ 4 Taunt 
 468,469. In an action in a joint and several bond, some of the parties' sureties severed in' 
 their pleadings from their principal, and a trial and verdict were had against them; afterwards 
 the principal was called upon to plead, and did so — judgment was then entered up against the 
 sureties, and a nolle prosequi as to the principal — to this judgment, or the proceedingSf no ex- 
 ception was taken in the court below, nor was a new trial asked by the sureties, buf a writ of 
 error was taken. The Supreme Court of the United States afSrmed the judgment; holding that 
 there was no decision exactly in point to such a case; that there was no distinction between the 
 entry of a nolle prosequi before and after judgment as applicable to such a case; and that the 
 deci.<ioneof the Courts of the United States upon this proceeding have been on the ground that 
 the qustion is matter of practice and convenience. Minor v. Mech. Bank, 1 Peters (S. C.) 
 46. 
 
 (1) Whitheck v. Cook, 15 Johi^. 683; Beidman v. Vanderslice, 2 Bawie, 334. 
 
 (2) Vide Burnbam v. Webster, 5 Mass. 270. 
 
46 
 
 OP THE PARTIES TO ACTIONS. 
 
 n. 
 DnrEMS- 
 Airra. 
 2. Who 
 ihould be 
 joined or 
 omitted. 
 
 objection appear upon the pleadings, the defendant may demur, move in 
 arrest of judgment, or bring a writ of error ; or if the objection do not 
 appear on the pleadings, the plaintiff, exceptin the case of co-executors 
 or co-administrators, will be nonsuited (e). But in the case of defendants, 
 if a party be omitted, whether liable to be jointly sued upon personal con- 
 tract (1), or as pernor of the profits of a real estate, as in debt for a rent 
 charge (/), or as one of the assignees of a term (^g'), the objection can 
 only be taken by plea in abatement (2), verified by affidavit (A) ; and the 
 statute 3 & 4 W. 4, ch. 42, sect. 8, requires the affidavit to state the resi- 
 dence in England of the omitted defendant, and if this be omitted, the de- 
 fendant will be chargeable with the whole debt, and it cannot be objected 
 at the trial upon the general issue as a variaoce, that a bill or note stated 
 in the declaration to have been m&,de by the defendant, was in fact made by 
 him and others (i). If, however, it expressly appear on the face of the 
 declaration, or some other pleading of the plaintiff, that the party omitted 
 is still living, as well as that he jointly contracted ; in that case the defend- 
 ant may demur (3), or move in arrest of judgment, or sustain a writ of 
 error (A). There may, however, be this objection in the case of a joint 
 contract, to the non-joinder of one or more of the several parties liable, 
 that if judgment be obtained against one, and in a separate action against 
 him on such contract, the plaintiff may have difficulty in afterwards pro- 
 
 (e) Ante, 8, 9, 13. 
 
 (/) 1 Sauud. 284, n. 4. 
 
 (g) 5 B. & C. 479. 
 
 (ft) Whelpdale'scase, 5Co. n9a; 2 Taunt. 
 254; 1 Saund. 154, n. 1, 291 b. n. 4, &o.; 6 
 1. R. 651; 1 East, 20; 4 T. K. 725; 2 Ela. 
 947; SCampb. 50. 
 
 (i) 1 B. & Aid. 224; Gow, B. 161. 
 
 (k) 1 Saund. 291 b. &c. n. 4, 154, n. 1; 1 
 B. & P. 73; 7 T. R. 596, 597; 2 Taunt. 254. 
 Suing only two of the inhabitants of the hun- 
 dred under the black act is fatal in arrest of 
 judgment, 2D, & R. 439. In general a per- 
 
 son is presumed to be living, until it be proved 
 that he is dead, unless seven years have elnsped 
 since he was heard of, 2 East, 313; 6 East, 85; 
 1 Saund. 235 a, n. 8; but this seems an excep- 
 tion, scd quare. See 2 Taunt 256; 2 Anstr. 
 448; 8 Anstr. 811, from which it should seem 
 that if it appear in a declaration or in a scire 
 facias at the suit of the king, on a bond, that 
 there were other joint contractors, though it 
 be not averred that they be living, the declara- 
 tion and scire facias will be deemed insuffi- 
 cient. 
 
 (1) Murphy v. Cress, 2 Whart. 33. 
 
 (2) Storey ». M'Neill, Harper, 173; Horton v. Cook, 2 Watts, 40; Winslow v. Merrill, 2 
 Fairf. 127; Powers v. Spear, 3 N. Hamp. 35; Robinson v. Robinson, 1 Fairf, 240; Williams v. 
 Allen, 7 Cowen, 316; Barry v. Toyles, 1 Pet. 317; Mackall v. Roberts, 3 Monro, 130; M'Ar- 
 thur V. Ladd, 5 Ham. 517; Conley v. Good, 1 Breese, 96; Allen v. Luoket, 3 J. J. Marsh. 165; 
 Palmer v. Crosby, 1 Blackf. 189; Claremont Bank v. Wood, 12 Vermont, 252; Nash v. Skinner, 
 12 Vermont, 219; Lurton v. Gilliam, 1 Scammou, 577; Ives v. Hulett, 12 Vermont, 314; Hicks 
 V. Cram, 17 Vermont, 449; Burgess v. Abbott, 6 Hill, 135. 
 
 (3) Whitaker v. Young, 2 Cowen, 572. In the second edition, the passage in the text stands 
 thus : " There is, however, this objection in the case of a joint contract to the non-joinder of 
 one or more of the several parties liable, that if judgment be obtained against one, in a separate 
 action against him on such contract, the plaintiff cannot afterwards proceed against the parties 
 omitted, and consequently loses their security;" — upon which it has been well remarked, by 
 Chief Justice Spencer, (18 Johns. 478.) " that by reference to the cases cited by Chitty, it will 
 be found that they were actions in tori ; and even in those actions which are, in their nature, 
 joint and several, it has been held, that where the plaintiff proceeded to judgment against one, 
 the others might plead this in bar. (Cro. Jac. 73. Yelv. 67. Com. Dig. Action, k. 4. 6 Co. 75 ) 
 These cases came under the review of this court in Livingston v. Bishop, (1 Johns. 291,) and it 
 was decided, that a judgment alone would be no bar, without satisfaction. In Wilkes v. Jack- 
 eon, (2 Hen. & Munf. 858, 361,) it was decided that a judgment for damages, in a separate 
 action against one of several joint trespassers, is a bar to an action against the rest. There is, 
 however, a wide difference between a judgment against one of several tort feasors, and one of 
 several /oint debtors. In the latter case, whatever extinguishes the debt as to one, merges it as 
 to all." See Robertson v. Smith, 18 Johns. 459 ; Willings v. Consequa, 5 Peters, 301 ; Penny 
 V. Martin, 4 Johns. Ch. 566; Smith v. Black, 9 Serg. & Rawle, 143; Farmers' Bank, 18 Serg. 
 & Rawle, 288; Ward v. Johnson, 13 Mass. 548. See also Williams v. M'Fall, 2 Serg. & Rawle, 
 280; Reed v. Garvin, 7 Serg. & Rawle, 864. The Supreme Court of Massachusetts, however, 
 have recently decided, (two judges of the five composing the court, dissenting,) that after a 
 
IN FORM EZ CONTRACTU. — DEPENDANTS. *47 
 
 ceediug *against the parties omitted (Z). If the defendant plead in abate- "• 
 
 DEFEND- 
 ANTS. 
 
 ment the non-joinder of a party, and it turns out there are other joint- 
 contractors not named in the plea, the defendant will not succeed there- s^iy. in 
 
 on (»l). the case of 
 
 In general, in the case of a mere personal contract, the action for the assign- 
 breach of it cannot be brought against a person to whom the contracting terest or 
 party has assigned his interest, and the original party alone can be sued : change of 
 thus if one demise cattle or goods, and the lessee covenant for himself and credit, and 
 his assigns, at the end of the term to deliver such cattle or goods, and the nants rim- 
 lessee assign the cattle, &c., this covenant will not bind the assignee, for ningwith 
 it is merely a thing in action in the personalty, and wants such privity as *' '*°"^> 
 exists between the lessor and lessee of real property in respect of the re- 
 version (w); and if two parties dissolve the partnership, and one of them 
 covenant with the other that he will pay all the debts, a creditor must 
 nevertheless sue both. (o). 
 
 There may, however, in some cases, be a change of credit, by agreement 
 between the parties, so as to transfer the liability from the original con- 
 tracting party to another, or to one only of the original parties (p) : thus 
 where the plaintiffs were creditors of T. and the defendants were debtors 
 to T., and by the express consent of all parties an arrangement was made, 
 that the defendant should pay to plaintiffs the debt due from them to T. ; it 
 was held, that the plaintiffs were entitled to recover {q). But unless it 
 was agreed that T. should be discharged from all liability, it seems that 
 no such action could be supported (r). The general rule of the law is, 
 that a debt cannot be assigned. The exception to that rule is, that where 
 there is a defined and ascertained debt due from A. to B. and a debt to 
 the same or a larger amount due from C. to A., and the three agree that 
 C. shall be B.'s debtor instead of A., and C. promises to pay B., the 
 latter may maintain an action against 0. But in such action it is in- 
 cumbent on the plaintiff to show, that at the time when C. promised to 
 pay B. there was an ascertained debt due from A. toB. (s) (1). So in the 
 
 (I) Com. Dig. Action, K. 4, L. 4; 1 Co. Taunt. 68. See instances of a new firm adopt- 
 
 45 a, 46 a. ; Cro. Jac. 73, 74 ; Yelv. 67. ing a debt of an old firm, and thereby beoom- 
 
 (m) 6 Taunt. 587; 2 Marsh. 352; 2 Bla. ing liable; 1 Mont. Bank. Law. 619,620; 4 
 
 951. Taunt. 673; 2 B. & Aid. 39; 2 B. & C. 72. 
 
 (n) SWils. 27; 4T. R. 730, 726; chose in (g) 6 B. & Aid. 228; 1 Hen. Bla. 339; 
 
 action not assignable at law, see ante, 15, 16. ante, 16. 
 
 (0) See Ante, 11, 12. (r) 3 B. & C. 855; 4 B. & C. 166; 5 B, & 
 (p) 1 New, 124. 131; 4 Esp. 91,92; 5Esp. Aid. 228; 8 B. & C. 395, 396. 
 
 122; 8 T. R. 451; 3 East, 147; 2 Campb. 99; (s) 8 B. & 0. 395. 
 
 12 East, 421; 2 Taunt. 49; 13 East, 7; 4 
 
 judgment in trespass de bonis asportatis against a deputy sheriff, and an execution levied on 
 his body, but not satisfied, no action lies against the sherifT. Campbell v. Phelps, 1 Pick. 62. 
 
 (1) Where A. held a claim against an estate, and the executor caused a farm belonging to 
 the estate to be sold, and left a portion of the purchase money in the hands of B. the purchaser, 
 to pay A. and other creditors certain debts, which B. agreed to pay, it was held that A. could 
 not sue B., A. never having assented to this arrangement prior to the suit, or agreed in any 
 manner to accept B. as his debtor, and extinguish his claim against the executor. Butterfield 
 V. Hartshorn, 7 N. Hamp. 345. If a suit can be brought by A. against B. at all in such case, 
 it could only be after demand ; and the demand in such case, if competent to sustain the suit, 
 can be so only on the ground of its being an assent of A. to the arrangement of the other par- 
 ties, by which assent his prior debt is extinguished and a new debt accrues against B. lb; Hea- 
 ton V. Angier, 7 N. Hamp. 397. See Gill v. Brown, 12 Johns. 385; Beeoker v. Beecker, 7 
 .Johns. 103; Holley v. Rathbone, 8 Johns. 149; Hall v. Marston, 17 Mass. 575; De Wolf v. 
 Chapin, 4 Pick. 59. 
 
 A. being indebted to B., C. without authority from B. obtains from A. his note payable to C. 
 for the debt due to B. but does not call on A. for payment for several years, and in the mean 
 
*48 
 n. 
 
 BEFEND- 
 ANTS. 
 
 3. When 
 interest, 
 &c. assign- 
 ed. 
 
 In case of 
 covenants 
 running 
 with real 
 property. 
 
 OP THE PARTIES TO ACTIONS. 
 
 case of a tenancy from year to year, if the landlord accept another person 
 as tenant, in the room of the former tenant, without any surrender in *writ- 
 ing, such acceptance will be a dispensation of any notice to quit, and the 
 original tenant will be discharged (t'). So if one take the security of the 
 agent of the principal, with whom he dealt, unknown to the principal, and 
 give the agent a receipt as for the money due from the principal, in con- 
 sequence of which the principal deals differently with his agent on the 
 faith of such receipt, the principal is discharged, although the security 
 fail ; but if the principal were not prejudiced he would not be discharged(M) 
 Where one of three joint covenantors gave a bill of exchange as a col- 
 lateral security, not expressly accepted in satisfaction of the debt, the 
 judgment recovered on the bill was decided to be no bar to an action 
 of covenant against the three (a;) ; and the creditor of a firm does not 
 discharge a retiring partner by agreeing to carry the debt to the account 
 of the remaining partners, and by taking their bill, which is afterwards 
 dishonored (2/) (1) ; unless it clearly appear that the creditor has accepted 
 the substituted credit of a new partnership instead of the liability of the old 
 firm, and not merely as a continuing or additional security (2;). But takinga 
 new security from the continuing partner may discharge the retiring one if so 
 agreed (a). The consignor of goods may be primarily liable for the freight, 
 but the consignee or purchaser, if he accept the goods in pursuance of the 
 usual bill of lading, may be sued for the same, unless it be known to the 
 master of the ship that he acted only as agent for the consignor (6) (2) . And 
 the indorsee of a bill of lading requiring the delivery to order, on payment 
 of freight, is liable, though he only acted as broker for the consignee (c) 
 (3) But where there is a charter-party under seal providing for payment of 
 freight by the freighter, and the goods are received under an indorsed bill 
 of lading, by which they are deliverable to the freighter or order, he or 
 they paying freight as per charter-party, there is no implied contract on 
 the part of the indorsee of the bill of lading to pay freight to the owner 
 of the ship (_d) (4). 
 
 Upon a covenant running with the land which must concern real prop- 
 
 (0 2 Esp. 505; 1 Camb. 818; 2 B. & AM. 
 119; But see 2 Campb. 103; 5 Taunt. 518. 
 See cases as to this point, 2 Stark. 286 ; i Bar. 
 & Cress. 922, 923 ; 3 Bing. 462. 
 
 («) 3 East, 147; 8 T. R. 451; 9 B. & C. 
 449 ; see observations of Ld. Hardwicke, Ambl. 
 271 272. 
 
 (x) 8'East, 251; 8T. R.451; 2 B. & A. 
 210; 3B. & A. 611. 
 
 (y) 5B. &C. 196. 
 
 (z) Kirwan v. Kirwan, 2 Cr. & M. 617, 
 627; 4 Tyr. 491, S. C. 
 
 (a) Thompson v. Percival, 1 Nev. & Man. 
 167 ; citing Kirwan v. Kirwan, supra. 
 
 (6) Abbott, 1st edit. 119; 1 East, 507; 1 
 Marsh. 248; 13 East, 399; 1 M. & S. 157; 
 2 M. & S. 803, 820. 
 
 (c) 1 Marsh. 146, 250; 1 M. & S. 157. 
 
 (d) 2 M. & S. 303; but Bee 3 M. & S. 218; 
 8 Campb. 545. 
 
 time pays B. a part of the debt, and promises to pay him the remainder. B. may maintain an ac- 
 tion for money had and received against C. although the note from A. to C. remains unpaid. 
 Fairbanks v. Blackington. 9 Pick. 93. 
 
 A promise by a debtor to pay the debt to a third person, unless the creditor has released the 
 debtor, or assigned the debt to such third person, is without consideration and void. Fhalan v. 
 Stiles, 11 Vermont, 82. See Thompkins v. Smith, 3 Stew, and post, 54. 
 
 (1) See Smith v. Rogers, 17 Johns. 840. But the bond, or obligation under seal, of one of 
 the partners is an extinguishment of a simple contract debt from the partnership, to the obligee, 
 Clement «. Brush, 3 Johns. Cas. 180. Tom v. Goodrich and others, 2 Johns. 213. The princi- 
 ple of law is, that a security of a higher nature extinguishes inferior securities, but not securi- 
 ties of an equal degree. Andrews v. Smith, 9 Wend. 63. 
 
 (2) Abbott, Shipping (6th Am. ed.) 510, 511; Trask v. Duvall, 4 Wash. 0. C. 181, 
 
 (3) Abbott, Shipping (6th Am. ed.) 511 ct seq. 
 
 (4) Abbott, Shipping (6th Am, ed.) 512 et seq; Barker v. Haven, 17 Johns. 284. 
 
IN FORM EX CONTBACTU. — DEPENDANTS. *49 
 
 erty or the estate thereon (e) (1) the assignee of the lessee is liable to an ac- "• 
 tion for a breach of covenant after the assignment of the estate *to him (A) ^^l™^' 
 (2), and although he afterwards re-assign or assign to a third party, he con- g ^ 
 tinues liable for all breaches accruing whilst the term was legally vested in interest, 
 him (i), and though he have not taken possession (&). And executors or &c. as- 
 administrators of a lessee may be sued as assignees of the term if they ac- s'8"«<^- 
 cept the term, though if one of two executors of a lessee enter, such entry 
 does not enure as the entry of both so as to make ihem jointly liable to an 
 action for use and occupation (J). But his liability ceases when he assigns 
 his interest, though even purposely, to a married woman, or an insolvent 
 person (m); and although the lease contain a covenant not to assign ; for 
 the assignment destroys the privity of estate (n). The same rule prevails 
 in equity (o). If the covenant be merely collateral and personal, an as- - 
 signee is not in any case liable, and the lessee alone can be sued (;?). Upon 
 a covenant running with the land, the lessee or the assignee of the lessee, 
 may sue the reversioner for a breach of it (9) , as well in case of freehold as 
 copyhold (r). An assignee of a lease, to whom an assignment has been 
 made by way of mortgage security, is liable for the rent, although he has 
 never entered, or taken actual possession (5) (3). Debt cannot be support- 
 ed against the assignee of part of the land demised by a lease, but only 
 against the assignee of the whole (i), though covenant is sustainable (m). 
 When there is an express covenant in a lease to pay rent or perform any 
 other act, the original lessee, and his personal representatives, having as- 
 sets, are liable to an action of covenant during the lease for non-perform- 
 ance of covenants ; notwithstanding, before the breach complained of, the 
 interest in his lease has been assigned, and rent has been accepted from 
 
 . (e) 3 Wils. 29; 2 H. Bla. 133; 10 East, 2 Bing. N. C. 15. 
 
 138,139; 2 Marsh, 1,4. As to what is a (i) Harley u. King, 1 Gale R. 100; 2 Cr. 
 
 covenant running vrith the land, see 5 B. & M. & Bos. 18. 
 
 A. 1; 4 B. & A. 266; 1 B. & C. 410; 3 (fc) Woodfall, L. & T. 7th edit. 113; 7 T. 
 
 Moore, 45; 2 Chit. E«p. 482, 608; ante, 17. R. 312; 2 Saund. 182; 1 Salk. 198; 1 Lord 
 
 (A) 32 H. 8, 0. 34; Bao. Ab. Covenant, Kaym. 322; 1 B. & B. 238; 3 Moore, 500, S. 
 
 E. 34; 3 Wils. 25; 2 Saund. 304, n. 12; C. ace; Dougl. 438, con*. 
 
 Piatt on Cov. 489. As to the liability of the Q) Nation v. Tozer and another, 1 Crom. 
 
 assignee of part of the premises. 5 D. & C. M. & Bos. 172. 
 
 479,484; 8 D. & K. 264, S. C. The lead- («i) 1 B. & P. 21;Bae. Ab. Covenant, E.4; 
 
 ing principles, as to the construction of cove- 2 Stra. 1 221 ; Piatt on Cov. 303. 
 
 Hants of this description, in -which an as- (n) 8 B. & C. 486. 
 
 signee has or has not a right to sue, are laid (o) Onslow ». Carrie, 2 Mad. 330; 2 Atk. 
 
 down in 5 Bep. 16. An assignee of a lease 546; 1 Bro. P. C. 516. 
 
 under covenant to repair, vrithout qualifica- {p) Bac. Ab. Covenant, E. 3, 4; 3 Wils. 
 
 tion, must repair the premises if destroyed 26 ; 2 Saund. 304, n. 12. 
 
 by fire, 2 Chit. Eep. 608. The assignee of (q) 4 B. & A. 266. 
 
 the lessee is bound to protect the latter from (r) 1 Saund. 241 a; ante, 18, 19. 
 
 liability, although the assignment contain (s) 3 Moore, 500; 1 B. & P.)238, S. C. 
 
 no covenant so to do. 5 B. & C. 589; 8 D. (<) Curtis v. Spitty, 1 Bing. N. C. 756. 
 
 & E. 368, S. C, and see Plight v. Glossopp, («) Conghart v. King, Cro. Car. 221. 
 
 (1) Nesbit V. Nesbit, Cam. & N. 324; Norman v. Wells, 17 Wend. 136. 
 
 (2) Vide PoUand v. Shaeffer, 1 Dall. 210. Debt for rent reserved by indenture may be sus- 
 tained by an assignee of the lessor against an assignee of the lessee. Howland v. Coffin, 12 
 Pick. 125; S. C. 9 Pick. 52. 
 
 (3) In Pennsylvania one who owns the equitable interest in land, and who as the owner of 
 such interest is in the constructive possession, and may receive the income of it, is liable in 
 covenant, as assignee, for a ground rent charged thereon, although the legal title is in another, 
 and no trust appears by the deed. Berry v. M'MuIlen, 17 Serg. & Bawle, 84. 
 
•50 
 
 OF THB PABTIES TO ACTIONS. 
 
 II. 
 
 DEFEND- 
 ANTS. 
 
 3. When 
 interest, 
 &c. as- 
 signed. 
 
 4thly. 
 When one 
 of several 
 obligors, 
 &c. is 
 dca4. 
 
 the assignee (v) (1). But an action cannot, it seems, be supported 
 against the lessee, or his personal representatives, for a breach of the 
 covenant merely implied by law, committed after *acceptance of rent 
 from the assignee (a) ; nor can the lessor, after such acceptance of the 
 assignee, maintain an action of debt against the lessee or his representa- 
 tives, even upon an express covenant (w). 
 
 An under-lessee (2), not having the whole of the lessee's interest as- 
 signed to him, cannot be sued by the original lessor for any breach of 
 covenant contained in the original lease (a;) ; though for voluntary and 
 not mere permissive waste he would be liable to an action on this case (y). 
 
 In the case of a, joint contract, if one of the parties die, his executor or 
 administrator is at lav; discharged from liability, and the survivor alone 
 can be sued (z) (3) ; and if the executor be sued, he may either plead the 
 survivorship in bar, or give it in evidence under the general issue (a) (4); 
 but in equity the executor of the deceased party is liable, unless in some 
 instances of a surety (6) (5). If the contract were several (6) or joint 
 and several, the executor of the deceased may be sued at law in a separate 
 
 (v) i Saund. 241, note 5; 1 T. B. 92; 7T. 
 R. 305; 1 Hen. Bla. 443; 4 T. E. 94, 100; 
 Bao. Ab. Covenant, E. 4; 8 East, 311. Piatt 
 on Cov. 539. See 6 Geo. 4, o. 16, ». 75, as to 
 bankrupt lessees, &o. 
 
 (a) I Saund. 241 b; 4 T. K. 98; 1 Sid. 
 447; SirW. Jones, 223; Cro. Jac. 523. See 
 Piatt on Cov. Index, " Implied Covenants. " 6 
 Bingh. 656. 
 
 (w) 1 T. R. 92; 1 Saund. 241, u. 5, see 
 post. 5 T.iunt. 452. 
 
 (x) Dongl. 183. 
 
 (V) 2 Bl. Rep. 1111; 1 Moore, 100; 6 
 Taunt. 301; 1 New Rep. 290; post. 
 
 (z) 2 Marsh. Rep. 302; 6 Taunt. 587; Bac. 
 Ab. Obligation, vol. v. D. 4 ; Vin. Ab. Obli- 
 gation, P. 20; 2 Burr. 1196; 1 Meriv. 662, 
 
 566; 2 Meriv. 30. The rule is so (upon a , 
 judgment against several) as to the personalty,?; 
 but not as to realty, 2 Saund. 56, n. 4; Tidd, 
 9th edit. 1121; 1 B. & A. 31; see 47 Geo. 3, 
 sess. 2, c. 74. 
 
 (a) 5 East, 261. 
 
 (6) Bao. Ab. Obligation, vol. vii. Adden- 
 da, Obligation, 506; 2 Vern. 277, 292; 3 Ves. 
 399. 2 Ves. J. 106, 244, 265; Lane v. Wil- 
 liams, 2 Vern. 277, 292; Chitty on Bills, 8 
 edit. 50; Daniel v. Cross, 3 Ves. 277: Ander- 
 son V. Maltby, Bro. C. C. 423 ; 2 Ves. J. 244, 
 S. C; Jacombi). Harwood, 2 Ves. 265; De- 
 vaynes, v. Noble, 1 Mer. 568. Quare, whe- 
 ther equity would give relief against the exe- 
 cutor, if the creditor could obtain payment 
 from the surviving partner. 
 
 (1) Vide Knuckle v. Wyniok, 1 Dall. 305. 
 
 (2) A declaration in covenant for rent, against the assignee of a lessee, averring that'tha rent 
 accrued subsequent to the assignment to the defendant, was due and owing to the plaintiff '8 
 testator, and still remains wholly in arrear, and unpaid to the defendant, states a breach in 
 sufBcient terms; and it is unnecessary to go further and say that the lessees had not paid it, 
 for that was already implied in the averment that the defendant owed it. Dubois v. Van Orden, 
 6 Johns. 105. 
 
 (3) Vide Foster v. Hooper, 2 Mass. 572, ante, 28, n. 1 ; Atwell v. Milton, 4 Hen. & Mun. 253; 
 Chandler v. Neil, 2 Hen. & Munn. 124; Braxton v. Hilyard, 2 Munn. 49; Simonds v. Center, 6 
 Mass. 18; Ayer v. Wilson, 2 Con. Ct. 319; Bunoy v. Williams, 1 Root, 343; Rowan v. Wood- 
 ward, 2 Marsh. 140; Lawrence v. Interest, 2 Penn. 724; Poole v, M'Leod, 1 Smedes & Marsh. 
 891. In Tennessee, by statute, a joint action will lie against a surviving partner, and the repre- 
 sentatives of the deceased partner. Simpson v. Young, 2 Humph. 514 ; Taylor i;. Taylor, 6 
 Humph. 110. 
 
 (4) Burgwin v. Hosterer, Tayl. 124; S. C. 2 Hayw. 154, nom. Burgwin v. ; Rowan v. 
 
 Woodward, 2 Marsh. 140. 
 
 (5) Vide Jenkins v. DeGroot, 1 Gaines Cas. in Err. 122; Lang v. Keppele,'l Binn. 123. 
 
 (6) Vide Harrison v. Field, 2 Wash. 136; Weever v. Shryock, 6 Serg. & Kawle, 262. In 
 the case of a joint contract, if one of the parties die, his executor is at law discharged from 
 liability, and the survivor alone can bo sued, he may plead the survivorship or give it in evi- 
 dence under the general issue. Grout v. Shurter, 1 Wend. 148. The doctrine which allows an 
 action against the executor, is applicable to cases where the contract, by the express assent of 
 the parties, is made joint and several. It does not authorize a .creditor to sue the executor or 
 administrator of a deceased partner, ib. 
 
m FORM EX CONTRACTU. — DEPENDANTS. 60 a 
 
 action (c) ; but he cannot be sued jointly with the survivor, because one "• 
 is to be charged de bonis testatoris, and the other rfe bonis propriis (d) (1). "^'S^* 
 When the surviving party dies, his executor or administrator is to be 4thiy. ' 
 made defendant (e) (2). It is not unusual to declare, at least in one Whcnan 
 count, against the survivor as such, noticing the death of liis co-obligee "bUgor ii 
 or co-partner (/) ; but the survivor or his executor may be declared ^^' 
 against, -without noticing the first deceased party (g-) (3) ; and in an ac- 
 tion against such survivor, a debt which became due from himself sepa- 
 rately, before or after the death of his partner, may be included (A) ; 
 and when the survivor is sued for his own separate debt, he may set off a 
 demand due to him as surviving partner (f) (4). 
 
 *When the contracting party is dead, his executor or administrator, [ *£! ] 
 or, in case of a joint contract, the executor or administrator of the sur- 6"»ly In 
 vivor, is the party to be made defendant (y), and is liable though not ^^utora"^ 
 expressly named in the covenant (5) or contract. But no action lies or admin- 
 against executors upon a covenant to be performed by the testator in per- istratow, 
 son, and which consequently the executor cannot perform (A) ; or for ^'''"' *'"' 
 the breach of a personal contract where the breach can occasion no in- 
 jury to the personal estate of the testator, or intestate, and where there- 
 fore the remedy dies with the person as a breach of a promise of marri^ 
 age {V) (6). The executor of a lessee is liable as such upon a breach of 
 covenant committed after the testator's death, by the assignee of the 
 lease Qni) (7) . In a recent case, the Court of Common Pleas held, that 
 the executors of a lessor, who was tenant for life, are not liable to the 
 lessee to whom a term of years was granted, for the breach of the implied 
 
 (c) 2 Burr. 1190. (A) 2 T. R. 476; 6 T. K. 582. See, as to 
 
 (d) Garth. 171; 2 Lev. 228; 2 Vin. Ab. 67, joinder of actions, post. 
 
 70. Gillan v. Pence, 4 Monroe, 305. (i) 5 T. R. 493; 1 Esp. R. 47. 
 
 (c) 3 B. & B. 302; 7 Co. 89 a; 1 B. & A. (j ) 9 Co. 89 a; 8 Bla. Com. 302; 1 Com. 
 
 31. on Contr. 258. 
 
 (/•) Per Le Blanc, J. 2 M. & Sel. 25; 6 (ft) 3 WiU. 29; €ro. Eliz. 553; 1 Rol.Rep 
 
 T. K. 363; Vin. Ab. Obligation, P. 20; anU, 859. ' 
 
 46. (Z) 2 M. & Sel. 408; 1 Com. on Contr- 
 
 (ff) 1 B. & Aid. 29; 3 B. & R 302; 7 528; ante,.19. 
 
 Moore, 158; onte, 44. (m) 10 East, ,318. 
 
 (1) In North Carolina, by statute, an administrator of a deceased joint obligor may be sued 
 jointly with the surviving obligor. Brown v. Clary, 1 Hayw. 107; Davis v. Wilkinson, ib. 334; 
 Tifion V. Harris, Pick. 414. 
 
 (^ The executors or administrators of two deceased obligors cannot be joined in the same 
 action. Watkins v. Tate, 3 Call. 521, Grymes v. Pendleton. 4 Call. 130; Head e. Oliver, 
 Marsh. 254. 
 
 (3) Raborg v. The Bank of Columbia, 1 Harr. & QilL 231. Thus, in an ction of assumpsit 
 for goods, which were sold to two partners, against the survivor, it is unnecessary to notice the 
 survivorship. Goelet v. M'Kinstry, 1 Johns. Cas. 405. In Harwood v. Roberts, 5 Greenl. 441, it 
 was held that in an action against two of four joint and several promisors, if it is stated in the 
 writ that four promised, it is material also to allege, that the other two are dead, or otherwise 
 incapable of being sued; or it will be bad, and may be reversed on error. 
 
 (4) Vide Hogg's Executors ». Ashe,'l Hayw. 477. 
 
 (5) Harrison v. Sampson, 2 Wash. 165; Lee v. Cooke, 1 Wash. 306. 
 
 (6) Lattimore v. Rogers, 13 Serg. & Rawle, 133. 
 
 (7) Where there.is an express covenant in a lease in fee for the payment of rent, the execu- 
 tors of the lessee are liable for the rent accruing subsequent to the testator's death, as far as 
 they have assets, although the land has gone inta the hands of the heir. Van Rensselaer v. 
 Platner, 2 Johns. Cas. 17. But covenant does not in such case lie against them by the devisee^ 
 of the grantor. Van Rensselaer v. Platner, Id. 2&. 
 
 ypL. I. 9 ^ 
 
§1 OF THE PARTIES TO ACTIONS. ""^ 
 
 D. covenant, or covenant in law, for quiet enjoyment resulting from and 
 DwgND- pi-eated by, the word demise, the lessee having been evicted by the re- 
 mainder-man (w). 
 5. Execu- If a person intermeddle as executor with the estate of the deceased, 
 tors, heirs, j^g j^^y j„ general be sued as executor de son tort, although there be a 
 "■ lawful executor (o) ; and in such case he is uniformly "declared against as 
 
 if he were a lawful executor, though the party died intestate, and he 
 may be joined in the same action with the lawful executor (1), though 
 not with the lawful administrator (j)} ; and if the husband of an execu- 
 trix after her death detain part of the goods of the testator, he may be 
 sued as executor c?e son tort (jq). So if a stranger take away the goods 
 of the deceased, and there be no lawful executor, he also is liable to be 
 sued as executor de son tort (2) though he claim them as his own (?•) ; 
 but in this case if there be a lawful executor or administrator, the stranger 
 cannot be sued as executor de son tort (s). And no person can ever be 
 sued as administrator de son tort (3), nor can an executor de son tort of 
 an executor de son tort be sued as such at law (<) The 3 <fe 4 W. 4, c. 
 42, s. 14, gives an action of debt on simple contract against an executor 
 or administrator in any Court of law. If there be several executors, 
 they should all be sued, in case they have all administered and have assets 
 or the defendant may plead the non-joinder in abatement; but if one hath 
 not proved, nor administered, he may be omitted (m). A plaintiff who 
 r *52 1 sues several persons *as executors, shall not be defeated in toto upon 
 causes of action stated in the declaration to have accrued to the deceased, 
 merely on the ground that one of the defendants was not an executor, 
 and succeeded on his plea to that effect ; but in such case the plaintiff 
 cannot recover on counts laying promises by the defendants as execu- 
 tors (v). So if .several executors plead jo/e«e administravit, the plaintiff 
 may succeed as one of them only (4). If a married woman be executrix, 
 the husband must be joined in the action (w;) : and an Infant cannot 
 be an executor till he be of full age (.r) ; nor can an executor be 
 
 (n) Adams v. Gibney, 6 Bing. 656. R. 565. Several executors, though of differ- 
 
 (0) 5 Co. 84, a. ' ent things, and though not jointly appointed, 
 {p) X Saund. 265, n. 2; Com. Dig. admin- &c. may be joined in an action. ' 1 Vin. Ab. 
 
 istrator, C. 3; Toiler, 369, 340. 139; Cro. Car. 298. As to plaintiff's e^ena- 
 
 (?) 5 Cro. Eliz. 472. tors, see ante, 19, 20. 
 
 (r) 5 Co. 33 b. {v) 1 M. & M. 146; 1 Saund. 207 a. 
 
 {«) 5 Co. 84 a. (w) Cro. Car. 145, 519; Toller, 367; poll. 
 
 (0 Mod. 2d3, 294; Andr. Eep. 252. (z) 38 Geo. 3, c. 87,8. 6; Toller, 867. 
 
 (u) Toller, 367; 1 Moo. & P. 668; 4 T. 
 
 (1) Though a person who is sued as executor de son tori, shall not defeat the suit by taking 
 <rat letters of administration pending the suit, because the suit was well commenced ; yet such an 
 administration willlegitimate all intermediate aets ab initio; and justify a retainer. Vaughan ti. 
 Brown, Str. 1106; S.C. Andr. 828; Curtis v. Vernon, 8 Term. 587; Battoon v. Overacker, 8 
 Johns. 126. 
 
 (2) Glenn v. Smith, 2 Gill. & Johns. 494; Campbell v. Toussey, 7 Cowen, 64. And may be 
 sued as executor generally. Id. 
 
 (8) At common law an action of account did not lie against an executor for want of privity, 
 but such action is now given by statute 4 & 5 Ann. c. 16. The ^rst thirteen sections of which 
 are in force in Pennsylvania, and the' 20th and 27th sections. Eoberts* Dig. 43; Griffith v. 
 Willing, 8 Binn. 317. Laws N. Y. Sess. 36, o. 75, S. 5. 1 R. L. 311, against the executors or 
 adniinrstrators of e(very guardian, bailiff, or receiver . Wtrt. sect, 125. Cp. Litt. 90 b, F. N. B, 
 117. E. Com. Dig. Accompt, D. 
 
 (4) App. V. IJriesbach, 2 Bawle, 287. 
 
IN POEM EX CONTRACTO. — DEPENDANTS. 58 
 
 BUed as such for money lent to (y), op had and received by him (js), of ^' 
 upon a penal statute (22^). By the Statute against Frauds the represen- ''^^' 
 tatives of a deceased person are not personally liable without a written 5, Execa'- 
 promise, and even such promise is not available in this respect, unless there ton, heirsi 
 be an adequate consideration (a) (1) ; but in some cases executors will *"'• 
 render themselves personally liable, if they contract as principals, and on 
 their own personal liability (6). If a creditor appoint his debtor to bo 
 his executor, such voluntary act is deemed a release at law ; but when a 
 debtor becomes administrator, such appointment being only by an act of 
 Court, and not of the creditor himself, it merely suspends the right (c)^ 
 
 If the contract be under seal, (or of record), the heir of the party con- 
 tracting is liable to an action for the breach of an express covenant there- 
 in ; provided the ancestor expressly bound himself " and his Aeirs " by 
 the deed or obligation ; and provided the heir have legal assets by de- 
 scent from the obligor (rf) (2). And if there be a devisee, (oth^rwiaei 
 than for the payment of debts, or in pursuance of a marriage contract en- 
 tered into before marriage,) he may be sued in an action of debt for the 
 breach of a contract of the testator under seal, or of record ; but the 
 heir must be joined in the action ; and an action of covenant cannot in 
 any case be supported upon a personal contract against a devisee, the 
 statute 3 & 4 W. & M. only giving an action of debt (e); Though the 
 devisee be an infant, he cannot pray the parol to demur by reason of his 
 Bon-age (8), such privilege being confined to an infaat heir (/).. But an 
 equity of redemption is not assets at law, in respect of which an heir or 
 devisee is chargeable, and the creditor must proceed *in a Court of Equity [ *53 1 
 (g"). An heir or devisee having a legal estate, is liable to an action for 
 the breach of a covenant running with the land committed in his own 
 time (A). If there be several heirs as in the case of gavel-kind, or of 
 parceners, they should all be joined, or the defendant may plead in abate- 
 ment (i) (4) ; and a devisee must be sued with the heir jointly at law as 
 
 (y) 1 Hen. Bla. 119; 2 Saund. 117 d; 4 T. (d) Bac. Ab. Heir and Ancestor, P.; 2 
 
 B. 847. As to suing him as such, for funeral Saund. 136, 137, n. 4; Plowd. 4%9, 441;; 
 expenses, see 3 Campb. 298; or money paid, Willes. 5^5; 2 Bla. Com. 243; Piatt on Coy. 
 see 7 B. a C. 444, 449; I Man, & R. 180, S. 41, 449. 
 
 C; account stated, 7 Taunt. 580; 1 Moore, (e) 3 & 4 W. & M. 0. 14; Bac. Ab. Heir 
 
 805, S. C. and Jlnces^tor, F.; IP. Wms. 99; 7 East, 
 
 (z) 7 B. &C. 444; 1 Man. & R. 180, S. 128. 
 
 C. (/) 4 East, 485. 
 
 (zz) Carth. 361; Cro. Eliz. 766; Com. (gf 2 Saund. 7, n. 4, 8 d. 5th ed. 
 
 Dig. adminisirntor, B. IS. (A) If only equitable estate descend, fki 
 
 (a) See 7 T. B. 850; 3 B. & B.460. heir cannot be sued at law, per Lord Ha^d- 
 
 (6) 2 B. & B. 460; 5 Moore, 282, S. C. wicke, Plunkett v. Pearson, 2 Atk. 294. 
 
 (c) See Went Off. Ex. chap. 2, p. 76, 14 (i) 2 Vin. Ab. 67; Com. Dig. Abatement^ 
 
 ed. Needham's case, 8 Coke K. 136; Wank- F. 9. 
 ford «. Wankford, ISalk. 306; Crosman's case, 
 1 Leonard, 826. 
 
 (1) Such as giving up securities against the testator's estate. Stebbins v. Smithy 4 Pick. 
 97, See Clark v. Herring, 5 Binn. 33. 
 
 (2) So, the heir of the heir is liable as far as he has assets by descent from the original obligor. 
 Walker v. Ellis, 2 Mun. 88. In the state of New York, heirs are liable on a simple contract or 
 specialty, whether mentioned therein or not, in case the debtor died intestate seized of lands, 
 &c. and the heirs of devisees in case he made a will. Laws of N. Y. sess. 36, c. 93, s 1; 1 Bt 
 L. 316; Rev. Stat. 462, s. 82; Etting v. Vanderiyn, 4 Johns. 234. 
 
 (3) In the State of New York, in a personal action ag^ust either heirs or devisees, the parol 
 shall hot demur; but no execution shall issue within a year after rendition of judgment, sets. 
 86, c. 93, s. 6, 1 R. L. 318; 2 Rev. Stat. 464, s. 42, 455, s. 65. 
 
 (4) Heirs, and assigns by deed, are jointly chargeable for breach of a eoveaant real of their 
 ftnoestors. Morse v..AMricb, 1 Metctdf, £44. 
 
53 OP THE PARTIES TO ACTIOHS. 
 
 "■ well as in equity (A). And though an executor cannot in any case be 
 "?MiB^ sued jointly with the heir (0 (1) yet the executor may be sued at the 
 ' „ ' same time as the heir, and if the heir be also executor, separate actions 
 tow heSs" ™^y bs sustained against him in both capacities (ni). If assets by descent' 
 &c. ' ' vest in the heir, it appears that the charge will continue to run against 
 ethly. In jiig heir taking the same assets (w). 
 
 bimk^pt^ When the contracting party has become bankrupt and has obtained his 
 cy. certificate, he is in general no longer liable to be sued in respect of any 
 
 debt due from him when he became bankrupt, or of any claim or demand 
 which the creditor might have proved under the commission (o) (2), 
 The present Bankrupt Act enables creditors to prove under the commis- 
 sion in respect to contingent debts, although the contingency had not hap* 
 pened at the time of the proof (p) ; consequently such debts will not be 
 barred by the certificate as effectually as other debts. In cases where the 
 plaintiff has an election to sue either in form ex contractu or in tort (3), 
 though the bankruptcy will be no answer to the latter mode of proceeding 
 (9), it will be a bar to any action founded on contract if the amount of 
 the plaintiff's demand was capable of being ascertained at the time of the 
 bankruptcy (r), and might have been proved under the commission (4). 
 
 There are also some demands which are barred by the certificate though 
 they were not provable under the commission. Thus, where an action 
 upon a contract has been brought against a party, and he becomes bank- 
 rupt before verdict, the costs in such actions, for want of a previous ver- 
 w diet, and not provable under the commission, but .they are notwithstand- 
 
 ing considered as accessorial to the original debt and barred together with 
 such debt by the certificate («) (5). 
 
 But in certain cases the bankrupt may still remain liable to an action 
 [ 64 ] in respect of contracts made before his bankruptcy. Leasehold *property 
 belonging to the bankrupt does not pass to the assignees unless they elect 
 to take it. By the 6 Geo. 4, c. 16, s, 75, the bankrupt is enabled to free 
 himself from future liability upon the lease by delivering it up to the les- 
 sor, within fourteen days after he shall have had notice that the assignees 
 have declined to accept the same ; but unless he avail himself of this 
 privilege, he will still continue subject to such liability. • 
 
 (k) 2 Saund. 7 n. 4; Bac. Ab. Heir; Vin. (0) 6 Geo. 4, c. 16, 8. 121. 
 
 Ab. Heir, Z. d. See 2 Atk. 125, 483, why (p) Id. a. 56. 
 
 preferable to proceed in equity. (5) Doug. 683; 6 T. R. 695; 5 Bing. 68. 
 
 (I) 18 Edw. 3,4; Com. Dig. Abatement, (r) Doug. 767; 6 T. B. 699, 701; and see 
 
 F. 10; Vin. Ab. Actions, c. d. pi. 8. 3 Madd. 51; Buck. 153. 
 
 (m) Com. Dig. P/«orfer, 2 E. 8. («) 3 M. & Sel. 326; 2 B. & B. 8; see 
 
 (n) Dyer, 368 a, pi. 46; Cro. Car. 151; 2 also 3 B. & A. 13; Eden. 2d edit. 136; 7 B. 
 
 Ch. Cas. 175; Plowd. 441. & C. 436, 706; 1 Man. & B. 330, S. C. 
 
 (1) Under the Pennsylvania act of 1836, devisees and heirs may be joined in an action 
 against the executor, and if the writ issue directing notice generally, notice given to an heir or 
 devisee makes him party. Norris v. Johnston, 5 Barr. 287. Heirs and- assigns by deed are 
 jointly liable for a breach of covenant r«al of their ancestor. Morse v. Aldricb, 1 Metcalf, 544. 
 
 (2) So, the discbarge of an insolvent is 00 bar to an action, on an express covenant, brought 
 tp recover rent accruing subsequent to the insolvent's discharge. Lansing v. Prendergast, 9 
 Johns. 127. See Murray v. De Bottenham, 6 Johns. Cha. 63; Hamilton ». Atherton, 1 Ashm. 
 67. 
 
 (8) Denied by Livingston, J. Haiton v. Speyer, 1 Johns. 41, 42. 
 
 (4) See Dufar v. Mnrgatroyd, 1 Wash. C. C. 16. 
 
 (5) Costs on a judgment obtained before the discbarge of an insolvent, although not taxed, 
 bre barred by the discharge. Wame v. Constant, 5 Johns. 136. Sad vide cases cited in note b. 
 Ibid. See the cases cited, lagraham'B Insolvent Laws of Pennsylvania, 171, note, 2d edit. 
 
m FORM EX CONTBACTD.— DEFENDANTS, 64 
 
 The bankrupt may also revive his liability upon a contract made before «• 
 his bankruptcy, by a subsequent promise to pay the debt (1) ; which pro- ">'"""' 
 ^ise, it appears, will in general be equally available to the creditor, whe- 
 ther made before (2) or after (3) the allowance of the certificate (0 ruptey"'" 
 But it should be observed, that promises and contracts made with the ere* 
 ditor expressly in consideration of his signing the certificate ; and also 
 promises made before the signing the certificate to a creditor who was one 
 of the commissioners, and who subsequently signed the certificate, would 
 be void, in the former case, under the express provisions of the Bankrupt 
 Act (m), and in the latter, as being against public policy (a;) (4). In 
 order that the pre»existing obligation should be revived by a subsequent 
 promise, the promise should be express, distinct, and unequivocal (j*) ; 
 and by the provision of the present Bankrupt Act, such promise must be 
 in writing, signed by the bankrupt, or by some person thereto lawfully 
 authorized in writing by him (sr). When the subsequent promise is effect' 
 ual, it is sufficient to declare upon the original consideration (a) (5) ; un- 
 less the promise be conditional, in which case it seems to be necessary for, 
 the creditor to declare specially (6). 
 
 In cases where a party becomes bankrupt after a former bankruptcy, a 
 prior discharge under an insolvent act, or after a composition with his ere* 
 ditors, the certificate only extends to protect his person, and his future 
 effects are liable to the claims of his creditors, unless he pay 15s. in the 
 pound. And before the late Bankrupt Act, the bankrupt was still liable 
 to be sued in respect of his subsequently acquired effects (c) ; but by the 
 provisions of that Act, the future estate and effects of the bankrupt are 
 declared to vest in the assignment under the second commission (d). 
 
 Where there are several contracting parties, and one has been bankrupt, 
 the action should be brought jointly against the solvent partner or partners 
 and the bankrupt, and if the latter should have obtained his certificate, 
 and should plead it, a nolle prosequi may be entered as against him (e). 
 
 *The following points, relative to the liability of the assignees of a bank- [ *55 ] 
 rupt to actions in form ex contractu, may here be noticed. No action can 
 be brought by any creditor against the assignees for the recovery of any 
 
 (0 Cowp. 544; 1 T. E. 715; 1 Bing. 281. (A) 4 Campb. 105. 
 
 («) 6 Geo. 4, c. 16, s. 125. (c) 7 East, 154. 
 
 (a:) 5 B. A. 753; 1 D. R. 411, S. C. (rf) 6 Geo. 4, c. 16, g. 127. 
 
 (J) 1 Stark. 370; 5 Esp. 198. (e) 2 M. & Sel. 28, 444; IWil s. 99; ante, 
 
 .(a) 6 Geo. 4, c. 16, s. 181. 42. 
 
 (0) Peak, E. 68; 2 Stark. 68; 2 Hen. Bla. 
 116; 4 Campb. 105. 
 
 (1) Shippey v. Henderson, 14 Johns. 178. An action cannot ^ maintained by the assignee 
 of a note payable to bearer directly on the note, when the negotiability of 8uch note has been 
 destroyed by an insolvent discharge granted the maker. Moore v. Viele, 4 Wend. 420. Not 
 can such assignee avail himself of a new promise subsequent to that discharge, if made neither 
 to himself nor his agent. lb. 
 
 (2) Kingston o. Wharton, 2 Serg. & Eawle, 208. 
 
 (8) Maxim v. Morse, 8 Mass. 127: A promise by a debtor after the execution of a Tolun- 
 tary release under seal by the creditor, at the debtor's request, to pay the balance of the debt, 
 is founded on a sufScient consideration, and is binding. Willing v. Peters, 12 Serg. & Eavle, 
 177. The promise must, however, be express, and be d&tinctly proved. Roff v. EofF, 1 Penn. 
 N. T. 418. 
 
 (4) See Baker v.Matlach, 1 Aahm. 68. Tnzbury t. Miller, 19 Johns. 311; Tfiggin v. Bush, 
 12 Johns. 306, and the American cases there cited. 
 
 ^6) Shippey v. Henderson, 14 Johns. 178> 
 
56 
 
 OP THE PARTIES TO ACTIONS. 
 
 II. 
 
 usiesD- 
 
 ANTS. 
 
 6. Bank- 
 ruptcy. 
 
 dividend (1), the only remedy being by petition to the Lord Chancellor (/)^ 
 Nor are the assignees liable to an action at the pit of the bankrupt, for 
 his allowance in respect of the amount of dividends paid under his es; 
 tate (g-), unless he shall have obtained his certificate before the declaration 
 and payment of the dividend, so as to enable the assignees to take such 
 allowance into account, and to retain for the same before the assets are 
 exhausted (A). It has heeu previously noticed, that assignees of a bank- 
 rupt lessee will not be liable to be sued in respect of the rent and covenant, 
 unless they elect to take to the premises comprised in the lease (i). And 
 when they have elected to take possession, they may nevertheless discharge 
 themselves from future liability, by assigning their interest in the premises 
 even to a pauper (A;). The assignees are not liable to be sued by the mes- 
 senger under the commission, for fees due to him before the choice of as- 
 signees, the petitioning creditor being the party answerable for these ex- 
 penses (i). And though assignees cannot contract debts in their political 
 capacity, and be sued therein as such (m) ; yet when they personally con- 
 tract, or when they receive money to the use of another (w), they are ha- 
 ble to be sued in their individual capacities. An assignee who has been 
 removed, and has assigned his interest to his co-assigaeej may be sued by 
 them (o). ^ 
 
 A certificate of discharge obtained in a foreign country, is a bar to an 
 action upon a contract made in such country before the certificate (/?) (2), 
 but not to an action by a creditor, a subject of this country, for a debt con- 
 tracted here (g). And it has been decided, that a certificate under an 
 Irish Commission of bankruptcy, though it be since the Union, is no dis- 
 charge of a debt contracted in England (r) ; but it has been held, that a 
 debt contracted in this country, by a trader resident in Scotland, is barred 
 by a discharge under a Scottish sequestration, issued in conformity to the 
 Statute 54 Geo. 3, c. 137 («). 
 
 toy. lo ^y *^^ Insolvent Act (f), an insolvent complying with the requisitions 
 the case of of the Act is to be discharged by the Court, " as the several debts and 
 an intoi- gums of money due, or claimed to be due, at the time of *filiug his peti- 
 tion from such prisoner, to the several persons named in his o? her sche- 
 dule as creditors, or claiming to be creditors for the same, respectively, 
 or for which such persons shall have given credit to such prisoner, before 
 the time of filing such petition, and which were then not payable ; and as 
 to the claims of all other persons not known to such prisoner at the time 
 
 vent debtor 
 
 [ *66 ] 
 
 (/)6Geo. 4,0. 16,s. 111. 
 
 ( g) Id. s. 128. 
 
 (h) 1 Atk. 207! 6 T. E. 545! ««*«. 26. 
 
 (i) Ante, 54. And see Peak, N. P. C. 
 238; 7 East, 835; 1 B. & A. 593. The pro- 
 visional assignee of a bankrupt is not respon- 
 sible for the fraud of an agent appointed with 
 due care, 9 Bing. 96. 
 
 (fc) IB. &P. 2l! onie, 48,49. 
 
 (0 3 B. & C. 43; 4 D. & R. 621, S. C; 
 6 Geo. 4, 0. 16, s. 14i 2 M. & Sel. 438. 
 
 («n) Cowp. 184, 185. 
 
 (n) 1 M. & Sel. 714. 
 
 (0) 1 Peake, N. P. 218. 
 
 (p) 5 East, 124. 
 
 (9) 1 East, 6> 
 
 (r) 4 B. & Aid. 624; and see 2 H. Bla. 
 658. 
 
 («) 3 B. & C. 12; 8 D. & R. 568t S. C.\ 
 see 1 Rose, 462; Buck, 57;. 3 Moore, 623. 
 
 (0 7 Geo. 4, c. 57, s. 40 and 46; continued 
 and amended by 1 Wm. 4, o. 88. A discharge 
 under this act must be pleaded speoially, 10 
 Bing. 11. 
 
 (1) Vide Peck v. Randall, 1 Johns. 165. 
 
 (2) Vide Hicks v. Brown, 12 Johns. 288, n. b. 
 Farrand, 18 Mass. 19. 
 
 Smith «. Brown, 2 Bittn. 201. Walah 
 
IN FORM EX CONTRACTU.— DEPENDANTS. 
 
 66 
 
 of such adjudication, •who may be indorsers or holders of any negotiable "• 
 security sot forth in such schedule" (m). "Ink"' 
 
 And by section 50 it is provided, that the discharge shall extend to all „ , " 
 process for contempt of any Court for non-payment of money (1,) and to yenoy. 
 all costs relative thereto ; also to all costs incurred in any actions brought 
 against the insolvent before the filing of his schedule for any debt or dam- 
 ages; and the persons bringing actions are to be deemed creditors for the 
 amount of such costs subject to taxation. The discharge is also declared 
 to extend to sums payable by way of annuity (.r). 
 
 It has been decided upon the 1 Geo. 4, c. 119, that the effect of the 
 discharge is only to liberate the insolvent to the extent of the specific 
 debts described in the schedule ; and where less than the full amount due is 
 specified, the balance in favor of the creditor still remains as a debt for 
 which the insolvent is liable (2^). But by the 7 Geo. 4, c. 57, s. 63, it is 
 provided, that the discharge shall protect the insolvent, although there has 
 been an error in the amount of the debt specified in the schedule, where 
 there has been no culpable negligence, fraud, *or evil intention on the part [ *57 ] 
 of such prisoner (^) . Formerly an insolvent was only considered to be dis- 
 charged as to his person, and he remained liable to be sued as to his subse- 
 quently acquired effects by the creditors named in the schedule; but it is 
 now provided, that no future execution shall issue against the goods of a 
 prisoner discharged, upon any judgment for any debt in respect of which 
 such prisoner shall have become entitled to the benefit of the «Act ; nor in 
 any action upon any new contract or security for payment thereof except 
 upon the judgment entered up against such prisoner, in the name of the as- 
 
 (u) See ns to holders of negotiable securi- 
 tiea, and what a su£Gicieot description of the 
 debt, &c.iD the schedule; 4 B. & C. 15; 6 
 D. &K. 75, S. C; 4 B. & 0. 214; Ky. & 
 Mo. 322; 2 Car. & P. 122; 1 Mo. & Mai. 
 202; 3 (Stark. B. 54; 3 Moore, 231. Under 
 the 37 Geo. 3, c. 90, a. 30, it was held that a 
 person is only discharged as to those creditors 
 to whom be has given notice of his intention 
 to apply for his discharge, 1 Chitty's Rep. 
 222; but such notice is no longer essential. 
 The 53 Geo. 3, c. 102, s. 10, directed that 
 the order Qf discharge should name the cred- 
 itors as to whose claim the prisoner should be 
 discharged, 7 Taunt. 179; but this is no lon- 
 ger necessary, and it suffices, if the schedule 
 name the creditor or the debt as distinctly as 
 the debtor can do, which is still necessary. 
 With respect to the necessity of naming the 
 creditor in the achednle^ it is observable that 
 the 40th and 46th sections require that the 
 name of the creditor be named if possible, but 
 suppose the difficulty of stating such creditor 
 in the case of negotiable security. Under 
 the 1 Geo. 4, o. 119, s. 50, (nearly corres- 
 ponding in terms with the above), where an 
 insolvent contracted for goods with A. the 
 agent for a company, and after giving him 
 two promissory notes for the debt, amount- 
 ing to £82 2s. 6d. took the benefit of the 
 
 Act, without describing the company as his 
 creditors, and stating the debt to "be only 
 £82; it was held, that his discharge was an 
 answer to the action by the company upon 
 the promissory notes, 6 D. & E. 75; 4 B. & 
 C. 15; S. C. So where an insolvent in his 
 schedule stated that A. held his acceptance, 
 and A. had in fact indorsed it to B. but un- 
 known to the- insolvent; it was held, that the 
 description was sufficient, 4 B. & C. 214, 2 C. 
 & P. 120; 1 E. & M. 322, S. 0. 
 
 And if an insolvent state u bill in his 
 schedule, as drawn by himself on M. where- 
 as it was drawn by M. on him, if the jury 
 are satisfied that the same bill was meant, 
 and the description was by mistake, it is a 
 good discharge, 2 C. & P. 120; 1 E. & M. 
 322, S. C. Where a creditor authorizes his 
 debtor to omit any statement of his debt in 
 the schedule, he cannot take advantage of 
 such omission, and the discharge Will be a bar 
 to any action, 3 Moore, 231. See farther, 4 
 Adol. & Ell. 887; 4 Tyr. 180. 
 
 (x) Sect. 61. See, as to the construction 
 of the former Insolvent Acts. 5 B. & C. 381; 
 1 M. & P. 91. As to bastardy bonds, 3 Bing. 
 154. 
 
 {y) 4 B. & C. 419; 6 D. & E. 491, S. C. 
 
 (a) See anie, 56, note(u). 
 
 (1) Maag's Case, 1 Ashm. 97. 
 
JJITS. 
 
 7. Insol- 
 ■vency. 
 
 67 OF THE PARTIES TO ACTIONS. 
 
 II. signee, or provisional assignee, according to the provisions of the Insol- 
 "^.f™' vent Act in that behalf (a). 
 
 A. married •woman may, under the 72d section of the Insolvent Act, 
 petition and obtain her discharge from debts the same as a feme sole, on 
 assigning her separate property, but so as not to prejudice any rights 
 of her husband to her property (6). The discharge of the husband un- 
 der the Insolvent Act does not preclude a creditor from taking the wife 
 in execution for her debt contracted dum sola, unless she has no separate 
 property (c). 
 
 When a prisoner has been discharged under the Lord's Act, the judg- 
 ment obtained against the prisoner remains in force, and execution may 
 at any time be taken out thereon against the property and effects of the 
 prisoner, except his wearing apparel, bedding, and tools of trade, to the 
 value of £\0, but no action of debt can be supported upon such judg- 
 ment (d) (1). 
 
 g „ J In general a feme covert cannot be sued alone at law (e) ; and when 
 case^V ° a feme sole, who has entered into a contract, marries (/) , the husband and 
 marriage, wife must in general be jointly sued (2), though the husband state an ac- 
 count, and expressly promise to pay the debt or perform the contract (§•) ]; 
 and where the wife was a yearly tenant before marriage, at a rent payable 
 
 (a) Sect. 61. See 6 Bing. 293. As to (e) 2 B. & P. 105; 2T. K. 363; Com. Dig. 
 
 warrant of attorney to be given to proyisional Plead. 2 A. 1 ; 3 Campb. 123. 
 
 assignee, s. 87; 1 Win. 4, c. 37, s. 3. (/) A marriage in fact, thoughnot strictly 
 
 (i) 7 Geo. 4, u. 57, s. 72. That clause was legal, is sufficient for this purpose. Andr. 
 
 introduced in consequence of the decision in 227, 228; 1 Campb. 245; 2Esp. 637. 
 
 ex parte Deacon, 5 B. & Aid. 759. (g) 7 T. R. 348; Alleyn, 72; 1 Keb, 281; 
 
 (c) 8 B. & C. 1 ; 2 Man. & R. 124, S, C. 2 T. B. 48G; 3 Mod. 186; Bac. Ab. Bar. mi 
 But see 5 Bar. & Adol. 303. Feme, L.; 1 Taunt. 217. 245; ,Gom. Dig. 
 
 (d) 32 Geo. 2, c. 28, 6. 20. Pleader, 2 A. 1. 
 
 (1) In the fourth edition the passage in the text was followed by this remark — "If. however, 
 in either of these cases, the debtor, after his discharge, expressly and indefinitely promise to pay 
 the debt, he may be sued and taken in execution upon such new contract, as in the case of » 
 bankrupt," and referring to the following authorities— 8 M. & S. 895.-2 Stra. ''1233.— 2 El. 
 1217.— 2 Campb. 443.-3 B. & P. 394; ace. sed -vide 6 Taunt. 563, to which the following note 
 was added by the Editor, — " But see Couch v. Ash, and Herbert v. Williams, 5 Cow. 26S, 627, 
 contra. See also the views taken of the text, the authorities referred to by Mr. Chitty in sup- 
 port of it, and the reasons for a different doctrine, Ingraham's Insolvent Laws of Pepnsylvania, 
 202 to 214, 2d edit." 
 
 The Supreme Court in New York decided that an action could not be maintained against the 
 maker of a promissory note payable to bearer, by a person to whom the same has been trans- 
 ferred, where the maker has obtained a discharge from all his debts as an insolvent debtor, pre- 
 vious to the transfer; although after the discharge, but before the transfer, the maker makes a 
 ncio prowite to the payee to pay the debt, and such new promise is set up by way of replication 
 to the plea of discharge. Depuy v. Swart, 3 Wend. 185. Insolvent discliarges reach to the con- 
 tract itself and impair its obligation. Sturges ». Crowningshield, 4 Wheat. 122. The note is 
 fundus officio, and can have no negotiable qualities, because it has no legal existence. Baker ». 
 Wheaton, 5 Mass. 509. Although the insolvent is legally exonerated from the payment of his 
 antecedent debts, the moral obligation remains; and this obligation is a sufficient consideration 
 for a new promise. M'Nair v. Gilbert, 3 Wend. 344. 
 
 (2) Vide Angel v. Felton, 8 Johns. 149. But if a feme sole marries pending a suit agamst 
 her the marriage need not be noticed in the subsequent proceedings. It does not affect the form 
 of the proceedings. The suit goes on as if no marriage had taken place. Roosevelt v. Dale, 2 
 Cowen, 581. The husband, however, thoughnot a party on the record, is so far as his interest 
 is concerned, a party with his wife; and he is to be received to make an affidavit of merits under 
 the rule which requires this to be done by the party. He is substantially a party; and on re- 
 covering judgment against her he may be made an actual party by a leire faciai, and in tlu» 
 manner be subjected to execution. lb. 
 
IN PCfRM EX CONTRACTU. — DEPENDANTS. 67 a 
 
 quarterly, and she married before a quarter's rent became payable, it was "• 
 held, that in an action to recover such quarter's rent, the wife should be °^j^"' 
 joined (A). But if the husband, in respect of some new consideration, 8. Mar- 
 as for forbearance, &c. expressly undertake in writing to pay the debt, "age. 
 or perform the contract of the feme, he may be sued alone on such under- 
 taking (i). 
 
 *When rent becomes due after the marriage, upon a lease to the feme [ '68 j| 
 whilst sole, or any other breach of the coveaants contained in such lease 
 is committed during the coverture (1), the action may be against both, or 
 against the husband alone (A). But the feme can in nocase be sued upon 
 a mere personal contract made during coverture (A, although she lite 
 apart from her husband, and have a separate maintenance secured to her 
 by deed (mi), or be separated under a sentence of divorce a mensa et 
 thoro (m). But it seems that she is liable upon such a contract, if, being 
 under a moral obligation in regard to the nature of the contract, she, 
 after the death of the husband expressly promise to perform it (o). And 
 an action on the assumpsit of husband and wife, against both, is bad, for ■ 
 quoad the wife the promise is void (p). But an action of covenant on 
 the warranty in a fine, or on a covenant running with the land of the 
 wife, demised by her pursuant to the statute, during the coverture, may 
 be supported against her (9) ; and it is said that upon a lease to the hus- 
 band and wife for her benefit, the action may be against both (»•). If the 
 husband be civiliter mortuus, or even transported for a term of years, or 
 has been abroad seven years and not heard of (.?), though he voluntarily 
 left the kingdom (i) (2), the wife may be sued alone upon a contract 
 made by her during that time (m) ; but a woman by birth an alien, and 
 the wife of an alien, cannot, be sued as a feme sole, if her husband has 
 lived with her in this country, although he has left her here, and entered 
 info the service of a foreign state (z) (1). In the case of a feme covert 
 
 (h) 3 Moore, 307; X B. & p. 50, S. C. Gow. R. 10. 
 
 (0 Alleyn, 73; 7 T. B. 349. (p) See 5 Taunt. 36; 1 Stra. 94, 
 
 (fr) 6 Mod. 239; 1 Roll. Ab. 348, pi. 45, (p) Palm. 313; 1 Taunt. 217. See 7 Taunt. 
 
 50; Thomp. Ent. 117; Com. Dig. Baron and 432; 2 Moore, 126. 
 .Feme, Y; 6 T. R. 176; 1 New B, 174. (9) 2 Saund, 180, n. 9. 
 
 (0 8 T. R. 5"45; 2 B, & P. 105; Palm. 312; (r) 1 Roll. Ab. 348, 350; Bae. Ab. Baron 
 
 1 Taunt. 217; 4 Price,, 48., and Feme, J,. 
 
 (m) 8 T. R. 545; 2 New R. 148. How (s) 2 Campb. 113, 273.- 
 
 axid when liable in equity ou a bill or note, 3 (f) Id. 
 
 Mad. 387. <k) 1 B. & P, 358, n. (/) Co. Lit. 133 115 
 
 (n) 6 M. & Sel. 73; 3 B. & C. 291, Mi- 2 B. & P. 105; 4 Esp. Rep. 27, 28. 
 ter as to a divorce a vinculo matrimonii, 1 (x) 3 Campb. 123. 
 
 (1) Vide Grasser v. Eohart, 1 Binn. 575; Robinson v. Reynolds, 1 Aiken's (Vermont) 125. 
 Or where the,husband being an alien, and never withia the United States, has deserted his wife. 
 Gregory v. Paul, 15 Mass. 31. See ante, 28, note. 
 
 (2) See ante, 28, note. See Rhea v. Rhenner, 1 Peters' Sup. Ct. 105. In Pennsylvania, if 
 a husbapd desert his wife, and ceases to perform his marital duties, the acquisitions of property 
 made by the wife during such desertion, are her separate estate, and she may dispose of them 
 by will or otherwise. Slarrett v. Wynn, 17 Serg. and Rawle, 230. So, if a husband, by deed 
 of separation without trustees, relinquish to his wife all his right to her land, reserving the 
 payment of an annual sum, the land*is not liable to the execution of a creditor of the husband, 
 who obtains judgment against him, after he and his wife have been notoriously .separated for 
 nine years. Bouslaugh v. Bouslaugh, 13 Serg. & Bawle, 361. A father placed the proceeds 
 of lands under the control of a son.for the benefit of a daughter who was a feme covert; held, 
 that no action could be maintained at law, in the name of the husband and wife; the remedy 
 beine in equity. Duval v, Covenhoven, 4 Wend. 561» 
 
 Vol. L TO 
 
68' 
 
 OF THE PARTIES TO ACTIONS. 
 
 II. 
 
 SEFESS- 
 
 AKTS. 
 
 8. Mar- 
 riage. 
 
 Where 
 
 husband 
 
 Burvives. 
 
 [ "59 
 
 tfhere 
 ■wife sur- 
 Tives. 
 
 Conse- 
 quences of 
 mis takes. 
 
 executrix or administratrix, slie must be joined with tlie husband in an 
 action on any personal contract of the deceased (2/)(l) ; and if a man 
 marry an administratrix to her former husband, -who had wasted tlie assets 
 during lierwidowhood, they may be jointly sued for such devaslavil{z) ; 
 but for rcntdue during the coverture ou a lease which the wife, has as ex- 
 ecutrix, the husband may be sued alone (a). 
 
 When the husband survives, he is not liable to be sued in that charac- 
 ter for any contract of the ieme made before the coverture, unless judg- 
 ment had been obtained against him and his wife before her death (2") ; 
 and if she die belore judgment, the suit will abate (b) (3). But if the 
 husband neglect, during her life, to reduce her chases in action, into pos- 
 session, the creditor may sue the person who administers thereto, for 
 debts due before her marriage (c); and for rent accruing during the co- 
 verture, or for money due upon a judgment obtained against husband and 
 wife, he may be sued alone as the survivor (ijf). 
 
 In case the vjife survive, she may be sued upon all her unsatisfied con- 
 tracts made before coverture (e). But the bankruptcy and certificate of 
 the husband will- discharge her from all liability to satisfy debts which 
 could have been proved under the commission ; and if the husband and 
 wife be sued jointly, his bankruptcy may be pleaded in bar (/) (4). 
 
 However, we have seen that the discharge of her husband under the 
 Insolvent Act does not preclude a creditor ftom taking a married woman, 
 having separate property, in execution for a debt, contracted by her dum 
 sola Ig). 
 
 If the husband be sued alone upon the contract of his wife before cov- 
 erture, and the objection appear upon the face of the declaration, the de- 
 fendant may demur, move in arrest of judgment, or bring a writ of error 
 (//)(6). If the contract were misdescribed as being that of the husband, 
 the plaintiff would be nonsuited under the general issue at the trial, upon 
 the ground of variance between the contract stated in the declaration 
 and that proved. But if the wife be sued alone upon her contract be- 
 fore marriage, she must plead her coverture in abatement, or a writ of 
 
 (1/) Cro. Car. 155, 519; ante, 52. 
 
 (c) Cro. Car. 603. 
 
 (a) Com. Dig. Bar. and Feme, Y.; Thomp. 
 Ent. 117. 
 
 (6) 7 T. E. 350; Com. Dig. Baron and 
 Feme, 2 C; Rep. temp. Talb. 173; 3 P. W. 
 410. 
 
 (e) 3 P. W. 409; Rep. temp. Talb. 173. 
 
 (rf) 3 Mod. 189, n. (fc) ; 6 Mdd. 239; Com. 
 Dig. Baron and Feme, '2 B. 
 
 (c) 7 T. R. 350 ;fl Campb. 189. 
 
 (/) 1 P. W. 249; 2 Ves. 181; Cullen, 392. 
 
 (?) Mute, 57; 8 B. & C. 1; 2 Man. & B. 
 124, S. C. 
 
 (A) 7 T. R. 349; 2 Chit. Rep. 697. 
 
 (1) In an action against husband and wife, for the debts of the wife contracted by her while 
 sole, a plea that the jiusband is an infant is no bar to a recovery. Roach v. Quick, 9 Wendell, 
 238. 
 
 (2) Buckner v. Smith, 4 Desau. Ch. 371; Beach v. Lee, 2 Dall, 257. 
 - (8) Williams v. Kent, 16 Wend. 360. 
 
 (4 ) In an action against husband and wife for the debt of the wife, contracted hy her while 
 sole, a plea that the husband is an infant is no bar to a recovery. Roach v. Quick, 9 Wendell, 
 238. Prior to her marriage, the wife was responsible for* such debts, and unless the liability 
 to pay them attached to tlieliusband, her creditors would be remediless, as she cannot be sued 
 alone separate from her husband ; and if she could, a judgment against her would be fruitless, 
 as all her estate is absolutely or qualifiedly vested in her husband. Reeve's Dom. Rel. 234; 
 Barnes, 96. 
 
 (5) Carl V. Wonder, 5 Watts, 97. 
 
IN FORM EX DELICTO — PLAINTIFFS. 69 
 
 error coram nobis must be brought ; and the coverture in such case can- n. 
 not be pleaded in bar, or given in evidence upon the trial as a ground of depend- 
 nonsuit (i) ; and if she marry pending an action against her, it will not *""• 
 abate, but the plaintiff may proceed to execution without noticing the ^: *'*'^" 
 husband (A;) (1). But if a feme covert be sued upon her supposed con- "''^' 
 tract made during coverture, she may in general plead the coverture in 
 bar, or give it in evidence under the general issue, or under nan est Jac- 
 <MOT,in the case of a deed (J). And if the husband and wife be improp- 
 erly sued jointly on a contract after marriage, the action will fail as to 
 both(m) (2). 
 
 •II. IN ACTIONS IN FORM EX DELICTO. [ •60 ] 
 
 The rules which direct who are to be the parties to an action in form cmK-xh 
 ex delicto, whether as plaintiffs or defendants, may, as in actions in form s™*. 
 ex conlractu, be considered with reference, 1st, to the interest of the 
 plaintiff in the matter affected, and the liability of the defendant; 2dly, 
 the number of the parties, and who must or may sue ox be sued ; 3dly, 
 where there has been an assignment of interest, &c. ; 4thly, in the case 
 of survivorship ; 5thly, where the party injured, or committing the injuryj 
 is dead; 6thly, in the case of bankruptcy; 7thly, insolvency ; and 8thly, 
 in that of marriao-e. 
 
 The action for a tort must in general be brought in the name of the per- pT^,^'np„ 
 son whose legal right has been affected, and who was legally interested iat_ ■\vho 
 in the property at the time the injury thereto was committed (w) ; for he is to sue, 
 impliedly the party injured by the tort, and whoever has sustained the loss ^'*'' "■«■ 
 is the proper person to call for compensation from the wrong-doer. A theTntewf 
 cestui que trust or other person having only an equitable interest, cannot of the 
 in general sue in the Courts' of common law against his trustee (3,) or even P'*>ntiff' 
 
 (t) 3 T. B. 631; 2 RoU.'Hep. 53; Sty. 280; Bui. N. P. 172; 2 Stra. 1104. 
 
 'Ba.a. kh. Bar. and Feme, 'L. (m) Palm. 312; ante, 58. 
 
 (fr) 2 Stra. 811; 4 East, 521j Cro. Jac. (n) Per Lord Eenyon, 8 T. B., S32( 3 
 
 823; Bio. Ab. Abatement, G, Campb. 417. 
 
 (/) 12 Mod. 101; ISalk. 7; 3 Keb. 228; 
 
 (1) See Williams v. Kent, 15 Wendell, 360; Johnson v. Parmely, 17 Johns. 271. 
 
 (2) A count charging man and wife upon a joint assijmption in consideration of money tad 
 and received by th^m to the plaintiff's use is bad. Grasser and wife v. Eckart and wife, 2 
 Binn. 575. 
 
 (3) It is otherwise in Pennsylvania, for the reason stated in the next note. Resse «. Ruth, 
 13 Serg.«& Riwle, 431. Martzell b. Stauifer, 3 Penns. 398. But since the passage of the 
 Acts of 14th June, 1836, entitled " An act relating to assignees for the benefit of creditors, 
 and other Trustees," (Purd. Dig. 75,. Edit. 1837,) and that of the 16th June, 1836, entitled 
 " An act relative to the jurisdiction and powers of the Courts." (Purd. Dig. 218,) by which 
 certain Equity powers are given to the Courts, it is questionable whether an action at law 
 would now be sustained by the courts. See Rush v. Good, 14 Serg. & Rawle, 226. It is 
 now the settled law of the state of New York, that a mortgagor has the legal estate and 
 seisin of the land until foreclosure or entry by the mortgSigee. Sedgwick ».■ Hollenbach, 7 
 Johns. 380; Stannard «. Eldridge, 16 Johns. 254. See also, for the doctrine in Pennsylv*. 
 nia, Schuylkill Nav. Co. v. Thoburn, 7 Serg. & Bawle, 411. And his wife may support a writ 
 
60 OP THE PARTIES TO ACTIONS. 
 
 ^ a third person (o) (1) ; unless in cases where the action is against a 
 
 mranfis jjjgj.g ^pQDg ^Qgp^ and for an injury to the actual possession of the cestui 
 
 we So.*" ^ue trust ij}). Many of the rules and instances which have been stated 
 
 ' in respect to the person to be made the plaintiff in actions in form ex 
 
 contractu, here also govern and are applicable {cf). 
 
 Actions in form ex delicto are for injuries to the absolute or relative 
 rights oi persons to personal ov real propertj;. 
 Por jniu- The action for an injury to the absolute rights oi persons as for assaults, 
 rie» to the batteries, wounding, injuries to the health, liberty, and reputation, can 
 ptTton. only be brought in the name of the party immediately injured, and if he 
 die, the remedy determines. With respect to injuries to the relative 
 rights of persons, the instances in which a husband may sue alone, or 
 should join his wife in an action for injuries to the person of his wife, will 
 be hereafter noticed (r). In the case of master and servant, the master 
 may sue alone for the battery of (2), or for debauching his servant, al- 
 [ "SI ] though they are not related, when there *is evidence to prove a conse- 
 quent loss of service (.«); and a father may sue for the seduction of his 
 daughter, although she was married, provided some loss of service can be 
 proved {t). But if there be no evidence of such loss, an action cannot be 
 suppoi'tedin the ^ame of the master (m). A parent cannot, it should 
 seem, sue in that character, even for taking away his child, unless it be 
 his son and heir, or unless a loss of service be sustained {x) ; clearly he 
 cannot support an action for debauching his daughter, or beating his child, 
 unless there be evidence to support the allegation per quod servilium 
 omisit («/) (3). And if, from its extreme youth, no service could be ren- 
 
 (0) 1 Sanders on Uses and Trusts, 222, Co. 330. 
 
 223i7T. R. 47. See Holt, C. N. P. 641;, 8 (a;) Cro, Eliz. 55. 770; 3 Bla. Com. 141. 
 
 Taunt. 263, S. C; 2Moore, 240, S. C. Per Holroyd, J. 4 B. & C. 662; 7 D. & E, 
 
 (p) 1 East. 244; 2 Saund. 47 d. 188, S. C. 
 
 (9) Ante, 2 to 8. (j() 5 East, 45. See Holt, C. N. P. 453, 
 
 (r) Post, 78. Very slight evidence of service is sufficient,. 2 
 
 (s) Peake, C. N. P. 55. 238; 5 East, 45, T. R. 168; 6 Tr. 860; Peake, C. N.P. 65, 
 
 > 47; 8 Bla. Com. 142; 11 East, 28; 9 Co. 233; Sir T. Raym. 259. A. with intent t» 
 
 li3; 10' Co. 389; 2 New Rep. 476. seduce B'a servant, hires her as his servant, 
 
 (0 7 B. & C. 387; 1 Man. & R. 166. S. C. then seduces her. B. may sue A.Jfor the se- 
 
 (») Id.; 3 Bla. Com. 142; 9 Co. 113; 10 duotion. 2 Stark. Rep. 493. 
 
 af dower to be endowed of the equity of redemption. Hitchcock and wiffe v. Harrington, 6 
 Johns, 295; Collins v. Torrey, 7 Johns. 278; Tabele v. Tabele, 1 Johns. Cha. 45. See also in 
 Massachusetts, Snow v. Stevens, 15 Mass. 279. And although the mortgage is a sufficient title 
 to enable the mortgagee to recover in ejectment, Jackson d. Ferris v. Fuller, 4 Johns. 216; Lra- 
 Bee of Simpson v. Atnmons, 1 Binn. 175. Yet the mortgagor may maintain trespass against 
 the mortgagee, and to a plea of liberum tenementum by the latter may reply that the freehold 
 was in himself. Runyan v. Mersereau, 11 Johns. 534. 
 
 (1) It was otherwise in Pennsylvania, the courts in that state not possessing, until recently, 
 any general equity powers. Kennedy v. Fury, 1 Dall. 72; Lessee of Simpson u.Ammons, 1 
 Binn. 177. 
 
 (2). This was law at the time of Bracton. 7 Reeve's Hist. E. L. 45. 
 
 (,3) Contra Martin v. Payne, 9 Johns. 387; Hornketh v. Barr, 8 Serg. & Rawle, 86; Van- 
 hom D. Freeman, 1 Halst. 322. Where it was held that the right of the parent to the ser- 
 vices of his daughter, under the age cf twentijrone, was sufficient to maintain the action 
 without proof of an actual service. But where the daughter is above that age, she must 
 be in her father's service, so as to constitute in law and in fact, the relation of master and 
 servant, in order to entitle her father to a suit tor seducing, her. Nickleson v. Stryker, 
 10 Johns. 115; Mercer «. Walmesley, 5 Har. & Johns. 27; 6 Serg. & Rawle, 177, ace. In 
 Pennsylvania an action cannot be maintained by a mother for debauching her daughter, 
 per quodurmtium amUit where the seduction was during the life of the father, with 
 
IN FOiSM EX DELICTO. — PLAINTIFFS. 61 
 
 dered by the child, the parent cannot sue for a personal injury inflicted 
 
 FliAINTIFESi 
 
 Upon the child ; the father not having necess?iiily incurred any expense . ^, 
 upon the occasion {z). In case of the battery of the wife or servant, if sue, &o. 
 there be any evidence sufficient to support an action in the name of the 
 husband or master, it is frequently most advisable to proceed accordingly, 
 because in such action, if the plaintiff recover less than 40s. damages, lie 
 will be entitled to full costs (a). The wife, the child, and the servanjt, 
 having no legal interest in the person or property of the husband, the pa- 
 rent, or master, cannot support an action for any injury to them (6)(1.). 
 
 In treating of the action of trover, it is not proposed to consider the ^P^ '"J"" 
 nature and extent of the property in or right to personal property, neces- "omUy."' 
 sary to support an action against a wrong doer, but it may be expedient 
 to notice in this place some of the general rules upon the subject. i 
 
 The absolute or general owner of personal property, having also tie 
 right of immediate possession, may in general support an action for any 
 injury thereto, although he never had the actual possession (c)(2). ' 
 
 An action for an injury to personalty may also be brought in the name 
 of the person having only a special property or interest of a limited or 
 temporary nature therein (rf). But in this case the general rule seeni? 
 to be that the party should have had the actual possessipn (e). 
 
 There are cases in which a party having the bare possession of goods, 
 which is prima facie evidence of property, may sue a mere wrong dopr 
 who takes or injures them, although it should appear that the plaintiff has 
 not the strict legaf title (3) ; there being no claim *by the real owner, and £ *62 ] 
 the defendant having no right or authority from him (/). 
 
 4 
 
 (zy 4. B. & C. 660; 7 D. & B. 183, S. C. (c). 2 Saond. 47 a, note 1. j 
 
 (a) 8 Wils. 319; 1 Salk. 216; 2Ld. Raym. (d) 2 Saund. 47 b, o. d. 
 
 831. • (e) IB. &P. 47d. 
 
 (A) 8 Bla. Com. 143; 1 Salk. 119. (/) 2 Saund. 47 o. d. 
 
 \rhom the daughter resided at the time; although after the father's death she remained with the 
 mother, who was at the expense of her lying-in, and who Supported her and her child, Logan, Vi 
 Murray, 6 Serg. & Bawle, 175 ; AUter in New Jersey, Coon v. MofiBt, 2 Penn. 583; Th8 
 slightest acta of service are sufScient, Moran v. Dawes, 4 Cowen, 412. Thus, where a bound 
 apprentice was seduced ; the indentures being Subsequently cancelled when she returned and wa^ 
 
 delivered at her widowed mother's house. Sergeant v. , 5 ib. 106. A ibmale under age 'id 
 
 presumed to be so under the control of the parent as to entitle the latter to maintain the action 
 Thompson v. Millar, 1 Wend. 447. Although the daughter be a servant de facto of another 
 and the father has relinquished all claim to her services, still the latter may maintain the actionlj 
 he being liable for the expenses of her lying-in. Clark v. Fitch, 2 ib. But if the daughter be 
 twenty^one years of age, it is different. Xii such case, there must be actual service. Stewart v\ 
 Kip, 1 ib. 376. And a party in loco parentis may maintain an action on the case per quod 
 iervitium amiiit for an abduction of his daughter's illegitimate oUspring. Moritz v. Gamhart, 
 7 Watts, 802. 
 
 (1) Vide 2 Keeve's Hist. B. L. 45, 46. 
 
 (2)- Vide Thorp v. Burling, 11 Johns. 285; Smith v. Plomer, 15 East, 607; Bird v. Clarkt 8 
 Day, 272; Williams v. Lewis, ibid. 498; Ca*y v. Hotailing, 1 Hill, 311. An action for injury 
 to personal property is rightly brought in the name of the owner at the time of the injury, although 
 it ia sold at the time of the action brought, or although it was in the possession of his actor who' 
 had a lien therein. Holly v. Huggeford, 8 Pick. 73; Boynton v. Willard, 10 Pick. 166. 
 
 (3) So, possession of a ship under a transfer void for non-compliance with the registry acta, 
 ia a sufficient title against a stranger. Sutten v. Buck, 3 Taunt. 302. An ofBcer who has seii- 
 ed goods under an execution may bring trespass or trover against a stranger for taking thorn 
 away. Barker and Enapp i;. Miller, 6 Johna. 195; Gibbs i>. Chase, 10 Mass. 125; 7 Cow. 
 297; Taylors. Manderson, 1 Ashm. ISO; but a mere servant, having only the custody of 
 goods, and only responsible over, cannot in general sue. Dillenback v. Jerome, 7 Cow. 294; See 
 Ludden v. Leavitt, 9 Mass. 104. 
 
•62 OF THE PAETIB3 TO ACTIONS. 
 
 !• Although in the above instances the action may be brought by the gen- 
 
 l"wh"to ^""^^ °^ special owner of gcjpds, against a stranger (1), yet a. judgment 
 sue, &c° ° obtained by one in an action against a stranger for a conversion, is a bar 
 to an action by the other (§•). 
 
 When the general owner has not the right of immediate possession, as 
 waere he lias demised the goods, or let them for a term unexpired, he 
 cannot maintain trespass or trover, which are forms of action founded ou 
 possession, even against a stranger (A) ; although if the injury were suffi- 
 cient to affect his reversionary interest, he may support a special action 
 on the case to recover damages to the extent of the injury he has sustained 
 (i) ; and a recovery in an action by a party having the possessory title for 
 the damage he has sustained, would bo no bar to an action for an injury 
 to the reversionary interest (&). 
 For inju- ^^^ person in possession of real property corporeul, whether lawfully 
 Ties to real Or not, may sue for an injury committed by a stranger, or by any person 
 properly. yf]^Q cannot establish a better title (Z) (2) ; and in trespass to land, the 
 person actually in possession, though he be only a cestui que trust, should 
 be the plaintiff, and not the trustee. But the rule is otherwise in ejectment, 
 which is an action to try the right ; and the fictitious demise must be in 
 the name of the pq,rty legally entitled to the possession, although the bene- 
 ficial interest may be in another (m) (3), and according to the strict nature 
 of the right ; thus tenants in common cannot join, but must sever, in sep- 
 arate demises, in a declai-ation in ejectment (w). Nor should tenants in 
 common join in debt for double rent (o). The party however, must be 
 in the actual possession, or he must have the general property, in respect 
 of whicii possession immediately follows, (as in the instance of the pos- 
 session of his mere servant) (p), or he cannot maintain an action of tres- 
 pass ; a mere right to enter is not sufficient {c[) (4). In the case of real 
 
 is) 2 Saund. 47 e.; IBulst. 68; 2 Tin. (o) Wilkinson c. Hall, 1 Bing. N. C. 713. 
 
 Ab. 49 pi. G. (p) 6 B. & C. 708. 
 
 (A) 7 T. E. 9; 3 Campb. 417; 1 R. & M. (q) 5 B. & Aid. 600; ID. & R. 225, S. 
 
 99 [ 1 Price, 53; po«J. See an illustrative C. ; 2 Moore, 666. Commissioners of sewers 
 
 ca«e, Dloxaro v. Sanders, 4 Bar. & Cres. 941. cannot maintain an action against the com- 
 
 7 D. & K. 396, S. C. missioners of a harbor, for breaking down a 
 
 (j) 7 T. R. 9; 3 Lev. 209; 1. Taunt. 190, dam erected by the former as such cotnmis- 
 
 19i. sioners, across a navigable river, as the au- 
 
 (/f) 3 Lev. 209; 1 Taunt. 190, 191, 194; thority to be exercised by them on behalf of 
 
 2 Cruise, 488. . the public does not vest in them such a property 
 
 (/) I East, 244; Willes, 221; 3 Burr. 1563; or possessing interest as will enable them 
 
 £ Stra. 123; Cro. Car. 586; Feake, 67; to maintain such action. 8 Moore, 666. But 
 
 1 Tiiunt. 83, 190, 191, 194; SEast, 394; 5 B. the contractors for making a navigable ca- 
 
 & Aid. 600; 1 I) & B. 225, S. C. nal having, with the permission of the 
 
 (m) 7 T. B. 47, 50. owner of the soil, erected a dam of earth 
 
 (>t) Doe V. Errington, 8 Nev. & Man. 616. and wood upon his close across a stream 
 
 (1) Vide Putnam i). Wylie, 8 Johns. 432; 7 Conn. 235. 
 
 (2) A guardian in socage may maintain trespass for an injury to the land of the ward. 
 Byrne v. Van Hoesen, 5 Johns. 66. But a person occupying land merely as a servant of the 
 owner, and not as a tenant, cannot maintain an action. Bertie v. Beaumont, 16 East, 83. 
 
 (3) See ante, p. 60. 
 
 (4) See, however, Bulkley v. Dolybeare, 7 Conn. 232. The owner of a brick yard, who ba« 
 authorized a third person to enter and make bricks at will , may still maintain an action for an 
 injury to the possession merely. Shaw v. Cummiskey, 7 Pick. 76. 
 
IN FOEM EX DELICTO. — ^DEFENDANTS. 'CS 
 
 property, there is not *that constructive possession -wlncli may exist in tho '• 
 case of personalty, and the party entitled to possession cannot maintain i^^vho^U) 
 trespass, unless he has had actual possession by himself or his servant, sue, &o. 
 thougli he have the freehold in law (r) and after a feoffment with livery 
 of seisin, the feoffee may maintain trespass, notwithstanding' a tenant at 
 will was in possession at the time of such feoffment, and did not assent to 
 the same (.«). These rules will be more fully considered in the next chap- 
 ter, when considering the cases in which an action of trespass is sustaina- 
 ble {I). A person having the immediate reversion or remainder in lee or 
 in tail, or for a less estate, may support an action on the case for waste (1), 
 or any nuisance of a permanent nature, or which affects, litigates, and 
 injures the rights, and which is injurious to his reversionary interest (m) ; 
 but he cannot sue in trespass when the possession is lawfully in his tenant 
 or other person {x) (2). — ^The tenant may support trespass against a stran- 
 ger for an injury to his possession; and the immediate reversioner mayj at 
 the same time, support an action on the case, if the injury were sufiicient 
 to prejudice his right and interest ; and a recovery by one will be no bar 
 to an action by the other (y). But the reversioner, when he sues, must 
 allege and prove such a permanent injury as necessarily affects his inter- 
 est (z). When trees are excepted in a lease, the lessee has no interest 
 therein, and cannot sue oven a stranger for cutting them down, though he 
 might for the' trespass to the land ; and in such case the lessor may support 
 trespass against the lessee or a stranger, if he either fell or damage them ; 
 but if there be no exception of the trees in the lease, the lessee has u, par- 
 ticular interest therein, and may support trespass against the lessor or a 
 stranger for an injury to them during the term ; but the interest in the 
 body of the trees remains in the lessor as part of his inheritance, aud he 
 may support an. action on the case against a lessee or a stranger for an in- 
 
 there, for the purpose of completing their 191, 194; 1 M. & Sel. 234; Ancient Lights, 
 
 work, have a possession sufficient to entitle 4 Burr. 2141; 8 Carr. & Pay. 617. There- 
 
 them to maintain trespass against a wrong medy for waste is fully considered under the 
 
 doer.- 5 B. & Aid. 600; 1 D. & R. 255, S. C. head of Case, post. 
 
 Bee other coses in Burn, J. tit. Poor, as to the {x) Id. ibid.; 1 Taunt. 190; 7 X. K. 9. 
 
 ratability of mines, &o. (y) 4 Burr. 2141; 3 Lev. 209, 359, 860 ; 
 
 (r) Com. Dig. Trespass, B. 3. Com. Dig. Action, Case, jYuisance, B.; 1 
 
 (s) Ball V. Cullimore and another, 1 Gale, Taunt. 188, 190, 191, 194. As to remedy 
 
 96. by reversioner, also by tenant, on 9 Geo. 1, 
 
 (0 Post. c. 22, against the hundred in case of a mali- 
 
 (u) 1 Saund. 823 b.; 2 Saund. 252 b.; 3 cious lire, 9 B. & C. 134, 142; 4 Man. & By. 
 
 Lev. 209, 860; 4 Burr. 2141; Com. Dig. 130, S. C. 
 
 Jlction, Case, JVuisance; 1 Taunt. 183, 190, (z) 1 M. & Sel. 284; 1 Taunt. 202. 
 
 (1) Vide Provost and Scholars of Queen's Colleger. Hallet, 14 East, 489; Attersolu. Stevens, 
 1 Taunt. 190, 194, 195, 202, 203, ante, 33, n. 1. 
 
 (2) Vide Campbell v. Arnold, IJohns. 511. ■ So, the lessor cannot maintain trespass against 
 the sub-tenant at will of his lessee. Toby v. Webster, 3 Johns. 468. At common law an action 
 of waste could not be maintained against a tenant for life, except by him who had the immediate 
 estate of inheritance expectant on the determination of the estate for life;_ but a statute of the 
 state of New-Tork gives an action of waste for trespass to any person seised in remainder or 
 reversion, for an injury to the inheritance, notwithstanding any intervening estate for life or for 
 years. Ses. 36, o. 56, s. 33; 1 R. L. 627; 1 Rev. Stat. 750, s. 8. As to the construction of this 
 section of the act for the amendment of the law. Vide Livingston v. Haywood, 11 Johns. 429; 
 Wickham v. Freeman, 12 Johns. 183. A reversioner cannot maintain trespass for an injury to 
 the inheritance, committed by a person who acts under the authority or by the permission of the 
 tenant for life; such person not being a stranger within the meaning of the statute authorizing 
 ^tions by reversionen . lavingston v, Mott, 2 Wend. 605. 
 
63 a OP THE PARTIES TO ACTIOira. 
 
 ^' jury thereto, or even trover, if they be cut down and carried away (a) (1). 
 l^VVh^to -^"^ '•^ sustain a count for an injury to an alleged reversionary interest sub- 
 sue, &o. ject to a demise, the written lease or agreement must be proved (6). 
 After a recovery in an action of ejectment, trespass for mesne profits may 
 be brought in the name of the lessor of plaintiff or of the nominal plain- 
 tiff (c), and after an escape in *the latter action, the sheriff may be 
 sued for it in the same of the nominal plaintiff {d). 
 
 Many of these rules prevail also in the case of an injury to real proper- 
 ty incorporeal, and if there be any injury to such right, an action may be 
 supported, however small the damage ; and therefore a commoner may 
 maintain an action on the case for an injury done to the common, though 
 bis proportion of the damage be found to amount only to a farthing (e). 
 
 2dly. Who When two or more persons are jointly entitled or have & joint legal 
 to^join or interest in the property affected, they must in general join in the action, 
 reference "^ the defendant may plead in abatement (/) (2) ; and though the inter- 
 to the num- est be several, yet if the wrong complained of caused an entire joint 
 ''Y°^-ff damage, the parties may join or sever in the action (3) ; but as the Courts 
 P "" ' ^" will not in one suit take cognizance of distinct and separate claims of 
 different persons where the damage as well as the interest is several, each" 
 party injured must, in that case, sue separately (g-). If a third personf j 
 collude with one partner in a firm to injure the other partners, the latter"' 
 may separately maintain an action on the case against the third person so 
 coilnding (A). 
 
 Therefore, several parties cannot in general, sue jointly for injuries to 
 the person as for slander, battery, or false imprisonment of both, and each 
 mast briog a separate action (i) (4). In these cases the wrong done to 
 one person cannot in law be to the prejudice of the other; nor is there 
 any criterion by which an entire sum can be awarded to them for dama- 
 ges. But partners in trade may join in an action for slanderous words 
 
 (a) ISaund. 322, note; 7 T. R. 13; Com. (e) 2 East, 154. 
 
 Dig. Biens; 1 Taunt. 190, 191, 194; 2 M. & (/) Post, 65, 66. 
 
 Sel. 498,499; ante, 62. (g-) Ante, 9; 1 Saund. 291 g; 2 Saund. 
 
 (i)Cotterill V. Hobby, 4 Bar. & Ores. 465. 116, n. 2; Bac. Ab. Action, C.;^ Wils. 423. 
 
 (c) 2 M. & Sel. 423; Adams on Eject. 333. (ft) Longman ». Pole, 1 Mood. & Mai. 223. 
 
 See 5 M. & Sel. 64; 2 Chit. Rep. 410. See (i) 2 Saund. 117 a.; 10 Moore. 446, 451. 
 post, as to the actjon for mesne profits. 
 
 (.4) 2 M. & Sel. 473. 
 
 (1) See Bulkley v. Dolybeare, 7 Conn. 232. 
 
 (2) Where two or more are deceived and injured in the purchase of real estate for partner- 
 ship purposes, by false and fraudulent affirmations of a third person, which are actionable, they 
 may join in an action against him to recover damages for the deceit and injury. Medbury v. 
 Watson, 6 Metcalf, 246. If a bill of sale of goods be made to one, who purchases for himself 
 and a dormant partner, both may join in an action of trespass for taking away the goods. 
 Robinson v. Mansfield, 13 Pick. 189; Russell d. Stocking, 8 Conn. 237; Sweigart ». Berk, 8 Serg. 
 & Bawle, 308; Glover v. Austin, 6 Pick. 209; Silmore v. Wilbur, 12 Pick. 120. Two incor- 
 porated companies may unite in an action of assumpsit to recover a sum of money deposited in 
 a bank in their joint names. The N. Y. and Sharon Canal Company v. The Fulton Bank, 7 
 Wend. 412. 
 
 (3) In an action of ejectment against one defendant for an entire lot of land, it was held 
 that separate demises from several lessors, might be laid in the declaration, who might give in 
 evidence their titles to distinct parts of the premises, in severalty, and recover accordingly. 
 Jackson d. Sidney, 12 Johns. 185. 
 
 (4) But in favor of liberty the lavr permits two to join in sning the writ de homine replegi- 
 ando. F. N. B. 66, P. 
 
IN FORM EX DELICTO. — PLAINTIFFS. 64 
 
 spoken, or a libel published concerning them in the way of their joint busi- »• 
 ness, without showing the proportion of their respective shares (*)(!). '^™™''* 
 So joint-tenants or coparceners may join in an action for slander (Z) (2) p-.^'^"*** 
 of their title to the estate (i). And husband and wife may sue jointly ^'^r'&o. 
 for a malicious prosecution and imprisonment of both, or the husband may 
 sue alone (mi). And two persons may jointly sue for a malicious arrest of 
 both, in an action brought without reasonable cause, if it be laid as special 
 ■ damage that they jointly incurred an expense in procuring their libera- 
 tion (w.) (3). For in these instances there is an entirety of interest, or a 
 joint damage resulting from the tort. Where an action was brought, and 
 a verdict obtained by two plaintiffs against a defendant for a malicious 
 arrest, and the declaration alleged as a special damage, not only a joint 
 expense incurred, *but also the false imprisonment of both ; the Court or- [ *65 1 
 dered the judgment to be arrested, but as the verdict confined the dama- 
 ges to the joint expense incurred by the plaintiffs in obtaining their libera- 
 tion, an amendment of the postea was allowed (o). 
 
 In actions for injuries to personal propet'tj/ joinirtena.nts and tenants in 
 common must join, or the defendant may plead in abatement (/>)(4) but 
 parties having several and distinct interests, cannot in general join. Thus, 
 if goods of A. and B., the separate property of each, be unlawfully dis- 
 trained, they cannot join in the replevin (^) ; and an audita querela in the 
 joint names of the conusors of a statute staple, for levying several execu-. 
 tio'hs on their lands respectively, cannot be supported (r) ; nor could per- 
 sons robbed on the highway join in an action against thehundred, unless 
 they were jointly interested in the property (s). 
 
 But though the interests of the parties be distinct, yet if the injury occa- 
 sion an entire joint damage to them, they may in some cases join (jf) ; as 
 where two. persons were severally seised of two ancient mills, at one or 
 the other of which the defendant ought to have ground his corn, but neg- 
 
 (fc) 3 B. &P. 150; 2 East, 426; and see (p) Bac. Ab. Joint-tenants, K. 7 T. K. 
 
 fully Foster v. Lawson, 3 Bing. 452; 11 279; 5 East, 407; Co. Lit. 198 a. 
 
 Moort, 360, S. C. (9) Co. 145 b. 
 
 (0 2 Saund. 117 a. (r) Cro. Eliz. 473; Noy. 1. 
 
 (m) Cro. Car. 553. See ante, 60. (s) Dyer, 370; 2 Saund. 116 a 375 a. 
 
 (n) 10 Moore, 446. {<) 2 Saund. 115. 
 
 (0) 10 Moore, 446, 
 
 (1) So an action lies for co-partners in trade against two or more, also cp-partners, for 
 falsely and fraudulently recommending an insolvent p erson as worthy of credit, whereby the ■ 
 plaintiffs were induced to trust him with goods. Patten v. Gurney, 17 Mass. 182. 
 
 (2) Two purchasers of an estate cannot maintain a joint action for a false and fraudulent 
 af&rmation by the seller. Baker v. Jewell, 6 Mass. 460. Co-partners, however, may join in a 
 suit against other co-partners, for falsely and fraudulently recommending an insolvent person as 
 worthy of credit, whereby the plaintiffs incurred a loss by trusting him with goods. Patten v. 
 Gurney, 17 Mass. 182. 
 
 (3) See post, 66, note. 
 
 (4) Vide Eradishi). Sohenck, 8 Johns. 151; Pickerings. Pickering, 11 N.Hamp.l4I; Smoot 
 V. Wathen, 8 Missouri, 522. Joint owners of goods must join in replevin to recover them, 
 M'Arthur v. Lane, 15 Maine, 245; Ellis v. Culver. 2 Harrington, 129. But several pereons, 
 having separate and distinct interests in a chattel, were held not entitled to join in replevin, in 
 Chambers v. Hunt, 3 Harr. 339. 
 
 But where the sheriff seized on execution and sold a chattel owned by the judgment debtor 
 and another in common, and paid the whole proceeds over to the judgment creditor, it was holden, 
 that although he might lawfully seize the whole, he should have sold but the share of the judg- 
 ment debtor; and the abuse of his authority made him a trespasser ah initio, and he was liable 
 to the other part owner of the chattel, in trover or trespass at his election. _ Melville v. Brown, 
 15 Mass. 82. Tenants in common must all join in an action of assumpsit for a tort that 1^ 
 waived. Gilmore v. Wilbur, 12 Pick. 120. 
 
 Vo^. I, %1 
 
I> 
 
 OP THE PARTIES TO ACTIONS. 
 
 I- lected to grind at either, it was decided that both might join (m) ; and on 
 w.AiNMiFs.,^^g same principle it was holden, that the dippers at Tanbridge Wells 
 2._Whoto jjiig];i(; join in an action against a person who exercised the business of a 
 i°ever, &c. dipper, not being duly appointed (x). And where goods are bailed to 
 two, and only one has the possession in fact, and a stranger carries them 
 away, both may have detinue or trespass, or the one who had actual pos- 
 session may sue alone (2/). 
 Forinju- In actions for injuries to real property, joint-tenants (z), and parcen- 
 riestoreal gpg (^a')(V), must join real as well as personal actions, or the nonjoinder 
 property. ^^^ be pleaded in abatement (2) ; and if one of several joint tenants diei 
 pending a real action, it will abate, as the survivor is entitled to a different 
 estate ; but it is otherwise in personal and mixed actions (6) (3). Tenants 
 in common must in general sever in real actions, unless in a quare impedit, 
 and in ejectment a joint demise would be improper (4) ; but in personal 
 actions, as for a trespass or nuisance to their land, they may join (5) be- 
 cause in these actions, though these estates are several, yet the damages 
 survive to all ; and it would be unreasonable when the damage is thus entire 
 to bring several actions for a single trespass (c)(6). A tenant in common 
 r "ee ] may *however in general sue separately ; as in ejectment for his undivided 
 share, or in trespass for the mesne profits, or in debt for double value 
 against a person who has held over after the expiration of his tenan- 
 cy (d). But a joint action for mesne profits may be supported by several 
 
 («)- 2 Saund. 115, 116. (5) Eep. Temp. Hardw. 398; Co. Lit. 188, 
 
 (x) 2 Wils. 423; 2 Saund. 116, note 2. 197. 
 
 (1/) 2 Vin. Ab. 59; Com. Dig. Abatement, (c) Bac. Ab. Joint-tenant3 , K.; 2 Bla. 
 
 E; 12. Eep. 1077; 5 T. R. 247; Yelv. 161; Cro. Jao. 
 
 (z) 2 Vim Ab. 59; Bac. Ab. Joint-tenants, 221; 2 H. Bla. 386; 5 Mod. 151. 
 K.; Moore, 466. But see 12 East, 61, 221. (d) 5T. E. 248; 2 Bl. Rep. 1077. In some 
 
 See 7 Moore, 29. cases he may sue in ejectment for the whole 
 
 (a) Vin. Ab. Parceners; Mbore, 466; 12 premises, 3 Moore, 229. 
 East, 61, 221. 
 
 In Brizendine v. Frankfort Bridge Co. 2 B. Monroe, 32, it was held, that one joint owner of a 
 chattel may recover his proportion of the value thereof, although another part-owner may have 
 recovered, or sued for and failed to recover the value of his interest, and judgment in bar be 
 entered. * 
 
 (1) Vide contra Doe v. Lonsdale, 12 East, 89, and in Connecticut, one, or any number of 
 them may bring an action against a person who has no title. Bash v. Bradley, 4 Day, 298; 
 Sanford d. Button, 4 Day, 310; Vide Litt. sec. 313. A person having an equitable title to land 
 may be joined with one having the legal title, in an action to recover for damages done to a 
 building erected thereon at the expense of both. Schuylkill Navigation Co. v. Farr, 4 Watts & 
 Berg. 362. 
 
 (2) If four joint-tenants jointly demise from year to year, such of them as give notice to quit 
 may recover their several shares in ejectment on their several demises. Doe d. Wayman d. 
 Chaplin,,8 Taunt. 120. 
 
 (3); Vide Litt. sec. 311, 812, 313. Carter v. Carr. Gilm. 145; Drago v. Stead, 2 Band. 454. 
 
 (4) It has been held by the Supreme Court of the State of New- York, that tenants in common 
 might declare on a joint demise. Jackson v. Bradt, 2 Caines, 169. The law is the same in Ver- 
 mont, Hicks «, Rogers, 4 Cranch, 165. In Kentucky, several persons claiming distinct parcels 
 of land under the same entry, may join against the holders of an adverse title. Smith v. Harrow, 
 1 Bibb. 97. 
 
 (5) In an action for a nuisance to land, all the co-tenants must join as plaintiffs. Low i). 
 Mumford, 14 Johns. 426. So tenants in common may join in an action of waste. Greenly v. 
 Hall, 3 Harrington. 9. Where five were seised of a mill as tenants in common, and the mill 
 was burned through the negligence! of some of them, it was held the other four might maintain 
 an action on the case against him. Chelsey d. Thompson, 3 New Hamp. 1. See Daniels ». 
 Daniels, 7 Mass. 135. 
 
 (6), Tenants in common should jpin ia detinue of charters. Co. Lit. 197 b. post. And 
 in case for the destruction of their charters or title deeds. Daniels v. Daniels, 7 Mass. 136, 
 Vide Lit;t. sec. 315, 816. Bradish v. Schenck, 8 Johns. 161. That tenants in common 
 must join in trespass quare clau$um f regit,, see Austin and others v. Hall, 13 Johns, 
 
IN FORM EX DELICTO. — PLAINTIFFS. 66 
 
 lessors of the plaintiff in ejectment after recoTery therein, although there i. 
 ■were only separate demises by each (e). piiainmim. 
 
 In actions in form ex delicto and which are not for the breach of a con- 2. Who to 
 tract, if a party who ought to join be omitted, the objection can only be ^"'J'g"'"* 
 taken by plea in abatement, or by way of apportionment of the damages Conse- 
 on the trial (1) ; and the defendant cannot, as in actions in form ex con- quenoes of 
 tractu, give in evidence the non-rejoinder, as a ground of nonsuit on the ^o^joini^ 
 plea of the general issue (2) ; or demur ; or move in arrest of judgment "^' 
 (3) ; or support a writ of error ; although it appear upon the face of the 
 declaration or other pleading of the plaintiff, that there is another party 
 who ought to have joined (/) (4) . And if one of the several part-owners 
 of a chattel sue alone for a tort, and the defendant ido not plead in abate- 
 ment, the other part-owners may afterwards sue alone for the injury to 
 their undivided shares, and the defendant cannot plead in abatement of 
 such actions (g-). 
 
 If however too many persons be made co-plaintiffs, the objection, if it conse- 
 appear on the record, may be taken advantage of either by demurrer, in quenoes of 
 arrest of judgment (A) ; or by writ of error {i); or if the objection do not ^i^oindet 
 appear on the face of the pleadings, it would be a ground of nonsuit on 
 the trial (A) (5) though if two tenants in common join in detinue of;char- 
 ters, it is said if one be nonsuit the other shall recover (?) (6). 
 
 We have already seen that choses in action ex contractu are not in gen- saiy. 
 eral assignable at law, so as to enable the assignee to sue in his own When the 
 name (m) .; the same rule prevails in case of injuries ex delicto either th<fI^op" 
 
 ef ty has 
 (e) 5 M. & Sel. 64; 2 Chit. Eep. 410. (i) 3 B. & P. 150; 2 Saund. 116 a.; Cro. been as- 
 
 (/) 1 Saund. 291 g; 6 T. R. 766; 7 T. R. Eliz. 473. signed. 
 
 279; 2 Saund. 117, 47 g; 1 B. & P. 75; 2 Id. (fc) Cro. Eliz. 143, 
 
 123; 5 East, 407, 420. (Z) Co. Lit. 197 b.; 3 Eaat, 62; 12 East, 
 
 (g) 7 T.R. 279; 3 Keb. 244; 5 East,407. 452; 2 New Rep. 454. 865. 
 (A) 10 Moore, 446. (m) .dnte, 15. 
 
 286. See, however, 14 Serg. & Kawle, 370. See Decker «. Livingston, 15 Johns. 479. If one, 
 who has a good cause of action join in trespass, quan clausilmf regit, with one who has no cause 
 of action, :the Suit cannot 'be sustained. Murray v. Webster, 5 N. Hamp. -391. 
 
 (1) See Frazier v. Spear, 2 Bibb, 385; Gilbert v. Diokerson, 7 Wend«ll, 449; Wheelwright i;. 
 Depeyster, 1 Johns. 471; Pickering v. Pickering, 11 N. Hamp. 141. But in an action of re- 
 plevin brought by one part-owner of a ohatteil, after verdict for the plainiifiF, the judgment was 
 arrested: and the court took a distinction between this case, in which the judgm^t would be 
 far a chattel, not capable in law of severance, as well as for damages, and those actions in which 
 damages only can be recovered. Hart v. Fitzgerald, 2 Mass. 509. 
 
 (2) But See Smoot v. Wathen, 8 Missouri, 522, in which a different rule is adopted; and see 
 Ellis V. Culver, 2 Harrington, 129. 
 
 (8) Vide Wheelwright v. Depeyster, 1 Johns. 471; Brotherson ». Hodges, 6 Johns. 108; 
 Bradish v. Schenck, 8 Johns. 151. If the husband distrains and avows for rent arising from 
 the wife's land, without joining her, he must show affirmatively, that the rent accrued after the 
 marriage, for such fact cannot be intended; and if it is not shown, the objection may be taken 
 at the trial. Decker v. Livingston, 15 Johns. 479. 
 
 (4) Thompson v. Hoskins, 11 Mass. 419; Bradish v. Schenck, 8 Johns. 151 ; Hall v. Adams, 
 1 Aik. 166; Bell v. Layman, 1 Monro,'40; Rich v. Benfield, 1 Wend. 380; Wilson v. Gamble, 9 
 N. Hamp. 74. 
 
 (5) Grover v. Hunnewell, 6 Pick. 222. So where two or more join ina qui tarn or popular 
 action to recover a penalty, — as there can be no joint interest in a penalty, unless expressly so 
 given by Statute. Vinton ii. Welsh, 9 Pick. 87; Hill v. Davis, 4 Mass. 137. So where two or 
 more sue for a malicious prosecution of a suit against them jointly, their injury being in law 
 several. Ainsworth v. Allen, Kirby, 145. See Leavitt v. Sherman, 1 Root, 159. 
 
 (6) If the defendant, in an action for a tort, settle with one of the plaintiff, he is still answera- 
 ble to the others. Baker v. Jewell, 6 Mass. 460. That the rule is the same in actions ex oon- 
 tracta, vide ante, 8. But if o^ of the co-plaintiffs release the defendaatt it i? a complete bar 
 to the action. Austin v. Hall, 13 Johns. 286. 
 
66 a 
 
 OP THE FAETIES TO ACTIONS. 
 
 *f to the person, or to personal (1) or real property. Therefore an heir can- 
 rLAramrs. ^^^ maintain an action for waste committed in the time of his ancestor ; nor 
 2. Who to the grantee of a reversion for waste committed before the grant (w) ; though 
 join orsev- ^g j^g^ye already seen that if a person have the immediate reversion or re- 
 *'' '■ maiuder in fee, in tail, or for life, or years, vested in him at the time of 
 the waste committed, he may maintain an action on the case for such injury 
 to his estate (o). And a devisee may support an action for the continuance 
 [ *67 ] of a nuisance erected in the *life-time of the testator, for every continuance 
 of a nuisance makes it a fresh one (p.) So a remainder man may support 
 an action for undermining a wall'during the tenancy for life, if the excava- 
 tion should be continued, and the wall fall down during his own time {g). 
 And if the owner of an estate deliver the title deeds to a bailee, and after- 
 wards convey away the estate, the new proprietor must be the plaintiff if 
 the bailee wrongfully detain the deeds after the purchase (r). And the 
 assignee of a copyright, or the purchaser of any personal chattel, may sue 
 for an injury after he became the proprietor (s). So it seems that a 
 wrongful seizure of goods by a sheriff, under a fi. fa. against B., does not 
 preclude C. the real owner, from afterwards, and whilst the goods remain 
 in the possession of the sheriff, selling and assigning his property in the 
 goods to D., and if the sheriff afterwards sell the goods, D. may support 
 trover against him (jf). 
 
 4thly. 
 When one 
 of seveTal 
 parties in- 
 terested is 
 dead. 
 
 When one or more of several parties jointly interested in the property 
 at the time the injury was committed is dead, the action should be in the 
 name of the survivor, and the executor or administrator of the deceased 
 cannot be joined, nor can he sue separately ; and therefore to an action of 
 trover brought by the survivor of three partners in trade, it cannot be ob- 
 jected that the two deceased partners and the plaintiff were joint merchants, 
 and that in respect of the lex mercatoria the right of survivorship did not 
 exist, for the legal right of action survives, though the beneficial interest 
 may not (m.) But if the parties had separate interests, in respect of which 
 they might have severed in suing, the personal representative of the de- 
 ceased may maintain a separate action, provided the tort yrsis not of such 
 a nature that it died with the person. At common law, when an action 
 had been commenced in the name of two or more persons, and one of 
 them died pending the suit, it abated ; but by the 8 & 9 W. 3, c. 11, s. 
 1,(x), it was enacted, " that if there be two or more plaintiffs or defendants 
 and one or more of them should die, if the cause of such action shall sur- 
 
 (71 ) 2 Saund. 262 a. note 7; 2 Inst. 305. 
 (o) JlnU, 63; 2 Saund. 552 b. 
 (j>) Cro. Jao. 231. 
 
 (g) 1 B. & Moo. C. N. P. 162; 5 B. & C- 
 263, 268; 2 Dow. & K. 14, S. C. 
 (r) 4Bing. 106. 
 (0 See 6 M. & Sel. 105. 
 (t) Friday v. Hait, tried at Maidstone and 
 
 afterwards decided in K. B. on motion for a 
 new trial, N. B. Osbaldestone and Murray, 
 attorneys, MS. 
 
 (u) 1 Show. 188; Carth. 170; 2 M. & S. 
 22; ante, 19. 
 
 (x) See the cases 2 Saund. 72 i. ; Eep. temp. 
 Hardw. 395; Bac. Ab. Joint-tenan.s, K. 
 
 (1) But it has been held, that the assignee of a bond might maintain trover for it in bis 
 own name, against the obligor, who had got it into his possession, and converted it. Cowles v. 
 Hawley, 12 Johns. 484. The grantee of demised premises cannot sue in his own name, upon a 
 guaranty as to the rent reserved in the lease, given by a third person to his grantor; the action, 
 notwithstanding the Revised Statutes, must be sued in the name of the grantor. Harbeok v. 
 Sylvester, 13 Wend. 608, „ 
 
IN FORM EX DELICTO — ^PLAINTIPFS. 67 
 
 vive to the surviving plaintiff or plaintiffs, or against the surviving de- ^■ 
 fendant or defendants, the writ of action shall not be thereby abated, but ^'■•^^•"^i'^" 
 such death being suggested upon the record, the action shall proceed at ^^g^everai 
 the suit of the surviving plaintiff or plaintiffs against the surviving defen- parties in- 
 dant or defendants (1) ; and consequently, since that statute, if one of terested is 
 several plaintiffs die pending a suit, and the cause of action would survive ^^^' 
 to the survivor, he may proceed in the action. But if the cause of action ^ #„„ , 
 do not survive, then the action would abate ; as if *the husband and wife [ 68 J 
 sue for the slander of the wife, if she die pending the suit, the husband 
 cannot proceed further {y). * 
 
 "We have seen that the right of action for the breach of a contract upon sthly. In 
 the death of either party in general survives to and against the executor case of tiie 
 or administrator of each (^) ; but in the case of torts, when the action the party 
 must be in form ex delicto, for the recovery of damages, and the plea not injured, 
 guilty, the rule at common law was otherwise ; it being a maxim that actio 
 personalis moritur cum persona (a) (2). And we shall find that the 
 statute 4 Ed, 3, c. 7 (3), has altered this rule only in its relation to personal 
 property, and in favor of the personal representative of the party injured; 
 but if the action can be framed in form ex contractu, this rule does not 
 apply (6) (4). We vrill now consider the rule as it affects actions for 
 injuries to the person, and personal and real property. 
 
 In the case of injuries to the person, whether by assault, battery, (5), Injuries to 
 false imprisonment, slander, or otherwise, if either the party who received *^® person. 
 or committed the injury, die, no action can be supported either by or 
 against the executors or other personal representatives (c) ; for the 
 statute 4 Ed. 3, c. 7, has made no alteration in the common law in that 
 respect (d) ; and the statute 3 & 4 W. 4, c. 42, s. 3, only gives executors 
 and administrators an action for torts to the personal or real estate of the 
 party injured, and not for mere injuries to the person ; and a promise to 
 marry is considered of so personal a nature, that although the action for 
 its breach is in form ex contractu, yet the executor of the party to whom 
 the promise was made cannot sue (e). 
 
 At common law, in the case of injuries to personal property, if either party 
 died, in general no action could be supported, either by or against the per- 
 sonal representatives of the parties, where the action must have been in 
 form ex delicto and the plea not guilty (/) (6) ; but if any contract could be 
 
 {y) i Tannt. 884. Administrator, B. 18. 
 
 («) .ante, 19. (6) See 3 Woodes. leot. 78, 79; Marsh. 14. 
 
 (a) See the obserTations on this rule in (c) 3 Bla. Com. 203; 2 M. & Sel. 408. 
 
 general, 3 Bla. Com. 302; 1 Saund. 216, 217, (d) 1 Saund. 217, n. 1 ; Sir W. Jones, 174^ 
 
 n. 1; SCowp. 371 to 377; 3 Woodes. Lect. (c) Jinte, 19. 
 
 73; Vin. Ab. Executors, 123; Com. Dig. (/ ) Cowp. 371 to 377. 
 
 (1) Vide Laws of New Yorlj. Act for amendment of the law, s. 6, 1 K. 1 519; 2 Rev. Stat. 
 386. 1. See also 3 Smith's Laws of Pennsylvania, p. 30. 
 
 (2) See Per Morton, J. in Wilbur o. Gilmore, 21 Pick. 252. 
 
 (3) In force in Pennsylvania, Kobert's Dig. 248. Report of the Judges, 3 Binn. 610. In 
 Massachusetts, see Per Morton, J. in Wilbur ». Gilmore, 21 Pick. 252. 
 
 (4) Middleton v. Bobinson, 1 Bay.' 58; Pitts v. Hale, 3 Mass. 321; Stetson v. Eempton, 18 
 Mass. 273; M'Evers v. Pitkin, 1 Boot, 216; Jones v. Hoar, 6 Pick. 286; Cooper v. Craine, 4 
 Halst. 173; Troup v. Smith, 20 Johns. 43. 
 
 (5) Miller ii. Umbehower, 10 Serg. & Eawle, 31. 
 
 (6) Death of the plaintiff in replevin does not abate the suit; his representatives may 
 prosecute it. Fisher v. Beall,- 1 Har. & Johns. 31; Pitts v. Hale, 3 Mass. 321; Jenney 
 V. Jenney, 14 Mass. 232; Beist v. Eeilbrenner, 11 Serg. & B. 131. Contra, Miller v. 
 
OP THE PABTIE8 TO ACTIONS. 
 
 I. 
 
 PLAINHTFS 
 
 implied, as if the wrong-doer converted the property into money, or if the 
 goods remained in specie in the hands of the executor of the wrong-doer, 
 5. Death assumpsit for money had and received might be supported at common law 
 ?Med'^^"' by or against the executors in the former case, and trover against the exe- 
 cutors in the latter (g-) (1). By the statute 3 Ed. 3, c. 8, intituled 
 " Executors shall have an action of trespass for a wrong done to the 
 testator," and reciting " that in times past executors have not had actions 
 r »g9 -i for a trespass done to their testators, *as of the goods and chattels of 
 the same testators carried away in their life, and so such trespasses have 
 hitherto remained unpunished," -it is enacted, " that the executors ia 
 such cases shall have an action against the trespassers, and recover 
 their damages in like manner as they, whose executors they be, should 
 have had if they were in life (2) ;" and this remedy is further extended 
 to the executors of executors (A), and to administrators (i). It has 
 been observed, that the taking of goods and chattels was put in the 
 statute merely as an instance, and not as restrictive to such injuries only, 
 and that the term " trespass" must, with reference to the language 
 of the times when the statute was passed, signify any wrong Qc) ; and 
 accordingly the statute has been construed to extend to every description 
 of injury to personal property, by which it has been rendered less bene- 
 ficial to the executor, whatever the form of action may be (V) ; so that 
 an executor may support trespass or trover (m) (3), case for a false 
 return to final process (w), and case or debt for an escape (4), 
 &c. on final process (o) (5). And although it has been doubted 
 
 (S) Cowp. 374; Latch. 168; 2 M. & Sel. {I) 2M. &Sel. 416. 
 415, 416. (m) Latch. 168; 5 Co. 27 a; Sir W. Jones, 
 
 (h) 35 Edw. 8, c. 6. 474. 
 
 (i) 31 Edw. 3, c. 11. (ra) 4 Mod. 404; 12 Mod. 71. 
 
 (k) Owen, 99; 7 JBast, 134, K6; 11 Vin. (o) Lord Raym. 973. 
 
 Ab. 125; Latch. 167. 
 
 Langton, Harper, 1312. Death of one of several plaintiffs, in an action of trespass, qu. cl.fr. 
 does not abate the suit; Haven v. Brown, 7 Greenl. 431; Boynton v. Rees, 9 Pick- 528; Wilson 
 V. Slaughter, 3 J. J. Marsh. 595. 
 
 Death of one of the plainti% in a qui tarn, action does not abate the suit. Wright v. Eldred, 
 2 Chip. 37. 
 
 A petition for review abates by petitioner's death. Woodward v. Skolfield, 4 Mass. 375. So 
 of a motion for a new trial. Turner v. Booker, 2 Dana, 335. 
 
 Action of debt for a statute penalty abates by a single plaintiff's death. Little v. Conant, 
 2 Pick. 527; Estis D.Lennox, Cam. & Nor. 72. So of an action on the case for diverting a 
 water course. Holmes v. Moore, 5 Pick. 257. 
 
 Action by &ther, for' seduction of his daughter, abates by his death. M'Clure v. Miller, 
 4 Hawks. 133. See Miller v. Umbehower, 10 Serg. & R. 31 ; Morris v. Corson, 7 Cowen, 281. 
 
 Whenever a party dies during a term, judgment may be entered as of a day before his death. 
 Griswold v. Hill, Paine, 483. See also Goddard v. Bolster, 6 Greenl. 427. 
 
 (1) Middleton v. Robinson, 1 Bay. 58; Jones ji. Hoar, 5 Pick. 285; Cooper' ti. Crane, 4 Halst. 
 173; Wilbur v. Gilmore, 12 Piok.120; Wilbur v. GUmore, 21 Pick. 250. 
 
 (2) Vide Laws of Jfew York, sess. 36, c. 71, s. 6, 7; 1 R. L. 811, 312. 
 
 (3) Nettles v. D'Orley, 2 Brevard, 27. Or replevin, Reist v. Heilbrenner, y. Serg. SlSawle, 
 131. And an executor need not describe himself as sach, in an action of trover to recover pro- 
 perty of the testator, wrongfully converted by a stranger. Trash j;. Donahue, Aiken's (Ver- 
 mont) 370. Vide Toule v. Lovet, 6 Mass. 394; Sneider v. Croy, 2 Johns. 227. 
 
 (4) The executor of a sheriff cannot maintain an action on the case against the gaoler, for the 
 escape of a prisoner committed to his custody by the testator. Kain v. Ostrander, 8 Johns. 207. 
 
 (5) So, case against a sheriff for the de&ult of his deputy in not returning an execution. 
 Paine v. Ulmer, 7 Mass. 317. And an executor may maintain an action for an in- 
 jury done to goods of his testator, before probate or seizure; and in his individual right 
 without declaring as executor. So an adminiBtrator may sue in trover in his own name fi>i 
 
m FORM EX DELICTO, — PLAINTIFFS. 69 
 
 whether an executor could sue for au escape on mesne process in the life- 5. Death of 
 time of his testator (p) ; it seems that on principle he might (q) ; and he lured"*' 
 may support debt for not setting out tithes (r) ; or against a tenant for 
 double value for holding over (s) ,• or against an attorney for negligence 
 (<) ; or debt against an executor, suggesting a devastavit in the life-time 
 of the plaintiff's testator (u) ; or case against the sheriff for removing 
 goods taken in execution, without paying the testator a year's rent {xy ; 
 or an action of ejectment or qua^e impedit, for the disturbance of the tes- 
 tator (?/). We will presently state the extension of remedy by 3 & 4 
 W. 4, c. 42, s. 2. 
 
 With respect to injuries to real property, if either party die, no action Injuries to 
 in form ex delicto could be supported either by or against his personal ""^ P™P" 
 representatives before the 3 & 4, c. 42, s. 2 ; and although the statute 4 *'''^" 
 Ed'. 3, c. 7, might/ bear a more liberal construction, the decisions confined 
 its operation to injuries to personal property (z) ■; and therefore an exe- 
 cutor could not support an action of trespass quare clausum f regit (1), 
 or merely for cutting down trees or other waste in the life-time of the tes- 
 tator (a) (2) : and though in Emerson v. Emerson (&), *it was holden [ *70 ] 
 that a declaration by an executor for mowing, cutting down, taking and 
 carrying away corn, might be supported, the allegation of the cutting 
 down being considered merely as a description of the manner of takiilg 
 away the corn, for which an action is sustainable by virtue of the statute ; 
 yet it was decided that if the declaration had been quare clausum fregit, 
 et blada asportavil, it would have been insufficient ; and that if the de- 
 fendant had merely cut the corn and let it lie, or if the grass of the tes- 
 tator had been cut and carried away at the same time, no action could 
 have been supported by the executor. We have seen, however, that an 
 action may be supported by a devisee for the continuance of a nuisance 
 erected in the life-time of the testator (c) (3). And a bill in equity, for 
 an account of equitable waste committed by a tenant for life may be main- 
 tained against his personal representatives (rf). 
 
 The 3 & 4 W. 4, c. 42, s. 2, has introduced a material alteration in the Altera- 
 
 common law doctrine, actio personalis moritur cum persona, as well in ^i°^^ by 8 
 
 & 4 W. 4. 
 
 (p) IVentr. 31; 1 Rol. Ab. 912; Latch. (y) Vin. Ab. Executors, P. pi. 7; Latch. 
 
 168; Sir W. Jones, 173; 4 Mod. 404; Cro. 168, 169; Sir W. Jones, 175; Poph. 190; 1 
 
 Car. 297; Vin. Ab. Executors, P. pi. 2 ace. ,- Vent. 30; 
 
 Ld. Raym. 973; 12 Mod. 72; 1 Salk. 12, (z) 1 Sauud. 207, n. 1; Sir W. Jones, 
 
 conir. 174; Latch. 169; Vin. Ab. Executors, P. 22, 
 
 (?) Owen, 99; 7 East, 134, 186. &c.; Toller, 168; 1 Vent. 187. 
 
 (r) 1 Sid. 88, 407, 181; 1 Eagle & Toung (a) Sir W. Jones, 174; 1 B. & P. 330, n. 
 
 on Tithes, 437, 440, 480; 2 Eagle on Tithes, a. 
 
 307, 308. (i) 1 Vent. 187; 2Keb. 874; Sir W. Jones,, 
 
 (s) 4 Geo. 2, 0. 28. 177, 174; 1 B. & P. 329. 
 
 (i) 2 B. & B. 103. (c) JJnie, 66. 
 
 (m) 1 Salk. 314. (rf) Lansdownj). Lansdown, 1 Madd. 116; 
 
 (a) 1 Stra. 212. 1 Chit. Eq. Dig. 395. 
 
 the goods of his intestate converted before the granting of administration, and need not declare 
 in his representative character. Valentine d; Jackson, 9 Wend. 802. The right of the former 
 commences upon the death of the testator; the latter accrues upon the grant of letters of ad- 
 ministration, and exists when the wrong is done only by relation, ib. 
 
 (1) Vide contra Griswold v. Brown, 1 Bay, 180. 
 
 (2) Nor can an action on the oaSe, for overflowing and drowning the land of the testator in 
 his life-time, be supported by an executor. Laughlin v. Dorsey, 1 Harr. & M'Hen. 224. 
 
 (3) But in an action for a nuisance to land all the co-tenants must join as plaintiffs. Low 
 v> Mamford, 14i Johns. 426. 
 
70 OP THE PARTIES TO ACTIONS. 
 
 PLAINT 
 
 1. favor of executors and administrators of the party injured, as against the 
 jNTiFFs personal representative of the party injured, but respects only injuries to 
 0. 42 in personal and real property, and subject to certain restrictions as regards 
 the rule the commencement of an action for such injury within a short time after 
 actio per- ^/jg death, and declaring that the damages to be recovered from an execa- 
 ac^Md ac- tor 01" administrator shall be ranked or classed with simple contract debts, 
 tions for The act recites, that there is no remedy provided by law for injuries to 
 injuries to ^jjg pgal estate of any person deceased committed in his life-time, nor for 
 and real Certain wrongs done by a person deceased in his life-.time to another, in 
 property, respect of his property, real or personal: for remedy thereof it enacts, 
 by and ^j^j^j. ^io, action of trespass, or trespass on the case, as the case may be, 
 eoutora and may be maintained by the executors or administrators of any person de- 
 adminis- ccased, for an injury to the real estate of such person, committed in his 
 trator8,are jife-time, for which an action might have been maintained by such persou; 
 tainabie." SO as such injury shall have been committed within six calendar months 
 before the death of such deceased person, and provided such action shall 
 be brought within one year after the death of such person, and the damar 
 ges, when recovered shall be part of the personal estate of such person ; 
 and further, that an action of trespass, or trespass on the case, as the case 
 may be, may be maintained against the executors or administrators of any 
 person deceased, for any wrong committed by him in his life-time to 
 another, in respect of his property real or personal, so as such injury 
 shall have been committed within six calendar months before such person's 
 death, and so as such action shall be brought within six calendar months 
 after such executors or administrators shall have taken upon themselves 
 r * Tl 1 the administration of the *estate and effects of such person ; and the dam- 
 ages to be recovered in such action shall be payable in like order of ad- 
 ministration as the simple contract debts of such persons (1). 
 
 6thly. In We have before considered what rights of action pass to the assignees 
 tentoupt- ^^ ^ bankrupt, where the cause of action is founded on the contract of the 
 ey. bankrupt (e). When the cause of action is founded on a ^orf, the ques- 
 
 tion whether a right to sue will pass to the assignees will depend upon 
 the nature of the right that has been injured. All the bankrupt's proper- 
 ty real and personal, passes to the assignees, and all powers to turn such 
 property to profit (/), and consequently when the injury complained of 
 consists in the unlawful detention of any part of such property, the as- 
 signees may bring actions for the purpose of recovering the possession or 
 value thereof. Thus they may bring a real action to recover any part of 
 the bankrupt's estate (g-), or an action of ejectment ; they may sue in tro- 
 ver for any of his goods upon a conversion either before or after the bank- 
 ruptcy (Ji) ; or in debt to recover from the winner money lost at play by the 
 bankrupt before his bankruptcy if). But for mere personal torts to the 
 bankrupt, such as assault or slander (2), it seems no right of action passes, 
 
 (0 Anle,22. ' (A) Cnllen, 418, 419; 5 Eaat, 407; Holt, 
 
 (/) See 8 Taunt. 751. N. P. C. 172. 
 
 (g) 2 Hen. Bla. 444. (i) 2 Hen. Bla. 808, and see 10 East, 418. 
 
 (1) Under statute of Massaolinsetts, 1828, o. 112, which provides that actions for injuries 
 done to real estate shall survive, trespass gu. cl. survives to the executor or to co-tenants. 
 Wilbur V. Gilmore, 21 Pick. 250. This statute applies to actions commenced after, as well a» 
 before, the death. Goodridge v. Bogeis, 22 Pick. 495. 
 
 (2) Deceit in the sale of goods, (Shoemaker v. Keelty, 2DalL 218; 1 Teates, 245,) mali- 
 cious abuse of legal process, (Sommer v. Wilt, 4 Berg. & Bawlo, 19,) libel, (Strong v. 
 
IN FORM EX DELICTO. — ^^PLAINTIFPS. 71 
 
 to the assignee (A) ; such rights are not considered in law as the sub- ^■ 
 ject of property, and there are no expressions in the bankrupt laws which ^™™™*- 
 direct that they shall pass by the assignment. It has been made a sub- ^f bani?- 
 ject of some discussion among writers on the bankrupt laws, whether any ruptoy, 
 right of action passes to the assignees in respect of mere torts, not cout 
 sisting in the detention or conversion of any property legally belonging to 
 the bankrupt, but which have only had the effect oi deteriorating the value 
 of some part of the bankrupt's estate before the title of the assignees 
 accrued (J). It does not appear that there has been any express determi- 
 nation of the Courts on this subject, but it seems reasonable and consist- 
 ent with the spirit of the bankrupt laws, that the assignees should be en- 
 titled to recover satisfaction for injuries of this description. 
 
 When the right of action does not pass to the assignees, the bankrupt 
 may, it should seem, sue, notwithstanding his bankruptcy (m) ; and even 
 where the assignees are entitled to sue in respect of injuries to property 
 acquired by the bankrupt after his bankruptcy, and before certificate, it 
 follows, from the principle before noticed (m), (viz. that the bankrupt has a 
 right against all other persons when his assignees *do not interpose,) that L "" \ 
 the bankrupt will,, on the non-intervention of his assignees, be entitled to 
 maintain actions of tort for all such injuries. Thus he may sue in tro- 
 ver against a stranger for goods acquired by him after his bankruptcy (o), » 
 (though not for goods acquired before^ (p) ; and an action of trespass is 
 maintainable by a tenant from year to year, who had become bankrupt af- 
 ter the committing the trespass, and before the commencement of the 
 suit, and the right of such action does not pass to the assignees by the 
 assignment, unless they interfere, as the bankrupt may sue as a trustee 
 for, and has a good title against all persons but them (g). But an uncerti- 
 ficated bankrupt cannot maintain an action of trespass against subse- 
 quent creditors for breaking open his house, and seizing his afterracquir- 
 ed property, his assignees having assented to the seizure ; though they 
 were unknown to the defendants until after the commencement of the 
 action (r). A party may support trover or trespass against his assignees 
 if he were not liable to the commission (s). 
 
 The general provisions of the Insolvent Act(0»with regard to the transfer 7tUy. in 
 to the assignees of the insolvent's right and property, have been already °*'* "^ ™" 
 mentioned (m). Certain articles are to be excepted from the assignment, °^ ^' 
 namely, " wearing apparel, bedding, and other such necessaries (x) of the 
 
 <fr) Sir W. Jones, '215; Cullen,177; Eden's ante, 28, 29; but see 1 Car. & P. 147. 
 
 B. L. 2d edit. 335. (r) 3 Moore, 612; 3 B. & Aid. 225. 
 
 (/) See 4 Evan's Stat. 329, 2d edit; see (s) 2 Wils. 382; 1 Atk. 102; Callen, 412. 
 
 per Cur. 8 Taunt. 751, 752; CuUen, 418; When not, see 9 East, 21; 1 M. & Sel. ttS ; 
 
 Eden, 235, 2d edit. 1 Hew llep. 352. Ttiis action lies, though the 
 
 (m) Id. commission be not superseded, 2 Wils. 388, 
 
 (n) .ante, 25. 384. Sedquare vide 7 Ta\uit.iOO. 
 
 (0) 7 T. E. 391; Callen, 414. (0 7 Geo. 4; c. 57. 
 
 (p) 1 Car. & P. 147; 4 B. & C. 419; 6 («) jJnie, 26. 
 
 Dow. & Ry. 491, B. C; 3 Moore, 612; infra, (x) That is, ejjmiem generis, and it seems 
 
 "Insolvency." these words would not comprehend plate, 1 
 
 (3) 3 Moore, 96; 8 Taunt. 742; S. 0. See C. & P. 147. 
 
 White, 9 Johns. 161,) carelessness or nnskilfnlness of the master of a vessel, by which goods 
 are damaged. (Dusae v, Murgatroyd, 1 Wash. 0. C, 13,) are cases not alfected by the discharge 
 of a party as an insolvent debtor or bankrupt.) 
 
 YoL. I. ■ n 
 
72 
 
 OP THE PARTIES TO ACTIONS. 
 
 I. 
 
 riiAiNTirrg 
 7 , la case 
 of InBol- 
 Tency. 
 
 8thly. lo 
 case of 
 marriagt. 
 
 [»73] 
 
 As regards 
 injaries to 
 the perton. 
 
 insolvent and his family, and his working tools and implements, not ex- 
 ceeding in the whole the value of £20." As to the excepted articles, 
 the insolvent retains his right and remedies (1). It seems that an insol- 
 vent may maintain an action for injury to, or conversion of, chattels which 
 ho acquires after the petition, though before his discharge, and which are 
 in his possession ; provided the assignees do not interfere (?/). But with 
 regard to property acquired before the petition, and which passes by the as- 
 signment, it appears that the insolvent cannot sue ; although the assignees 
 do not interpose (0). The rules upon this subject appear to be analogous 
 to those which prevail in the case of bankruptcy (a). With regard to 
 remedies for personal torts, as they do not appear to pass to the insolvent's 
 assignee, it would seem he retains the right of action. 
 
 The wife having no legal interest in the person or property of her hus- 
 band, cannot in general join with him in any action for an injury *to 
 them (6), except in an action for a joint malicious prosecution of both, in 
 which they may join in respect of an injury to both, or the husband may 
 sue alone for the injury to himself and expenses of defense (c). 
 
 For injuries to the person, or to the personal or real property of the 
 wife, committed before the marriage, wlfen the cause of action would sur- 
 vive to the wife, she must join in the action, and if she die before judg- 
 ment therein it will abate ((/)(2). But in detinue to recover personal chat- 
 tels of the wife, in the possession of the defendant before the marriage, 
 perhaps the husband must sue alone, because the law transfers the proper- 
 ty to him, and the wife has no interest (e). In detinue for charters or the 
 wife's inheritance, they may join, on account of the continuing interest of 
 the wife in the estate to which they relate (/). 
 
 When an injury is committed to the person of the wife during coverture, 
 by battery, slander, &c. (3), the wife cannot sue alone in any case (§■); and 
 the husband and wife must join if the action be brought for the personal 
 suffering or injury to the wife, and in such case the declaration ought to 
 
 (,y) 1 C. & p. 146, 147; 4 B. & C. 419; 
 6 Dow. & R. 491, S. C. Interference by as- 
 signees after action brought, semble sufficient, 
 3 Moore, 612. 
 
 (2) IC. &P. 147. 
 
 (a) See id, and ante, 26. 
 
 (6) 3 Bla. Com. 143; Lord Raym. 1208; 
 2 Wils. 424; 1 Lev, 140; 1 Salt. 119, n. b.; 
 Sir W. Jones, 440. 
 
 (c) Cro. Jac. 553; Com. Dig. Bar. & 
 Feme, X. ; ante, 64. Where wife may make 
 use of husband's name against his will, see 9 
 East, 171. 
 
 id) 3 T. R. 527, 631; 7 T. R. 348,349; 
 Com. Dig. Bar. & Feme, V.; Koli Ab. 847, B. 
 pi. 3; ante, 28, 29; 4 Taunt. 884. 
 
 (e) Bac. Ab. Detinue, A.; Bui. N.P. 60; 1 
 Salk. 114. Sed Vide R. temp. Hardw. 120. 
 
 (/) 1 Rol. Ab. 847, R. pi. 1; Bac. Ab, 
 Detinue, B. 
 
 (g) 11 East, 201; 9 East, 471. Amarriago 
 de facto is sufficient, unless it be void oi initio, 
 as in the case of polygamy, 1 Stra. 79, 480 ; 
 Andr, 227, 228; Dougl. 174; anU, 67, 
 
 (1) Although the assignment of an insolvent debtor passes the legal estate in his lands,yet a 
 trust results by operation of law, which, as soon as the debts are satisfied, entitles him to the 
 possession against his assignees, e( a multo fortiori against a stranger against whom he may 
 maintain ejectment in his own name. Koss v. M'Junkin, 14 Serg. & Rawle, 366. 
 
 (2) Stroop V. Swarts, 12 Serg. & Eawle, 76. 
 
 (3) An action cannot be sustained by the husband and wife for words spoken of the latter, 
 which are not actionable /ler se ; the suit should be in the name of the husband alone. It is 
 otherwise, however, where the words are actionable per te. Beach v. Ranney, 2 Hill, 809. The 
 jvie is the same, though the husband and wife live apart under a deed of separation, ib, 
 
tN FOBM EX DELICTO.-^PLAINTIPPS. 78 
 
 conclude to tlieir damage, and not to that of the husband alone ; for the »■ 
 damages -ffill survive to the wife if the husband die before they are re- ^'*™"™ 
 covered (A) (1). Care must be taken not to include in the declaration by of'Mar-*'^' 
 the husband and wife any statement of a cause of action for which the riage. . 
 husband alone ought to sue (2) ; therefore, after stating the injury to the 
 wife, the declaration ought not to proceed to state any loss of assistance, 
 or expenses sustained in curing her. («). If the battery, imprisonment, or 
 malicious prosecution of the wife, deprive the husband for any time of her 
 company or assistance, or occasion him expense, he may and ought to sue 
 separately for such consequential injuries (Je) ; and he may in the same 
 action proceed for a battery or other injury to himself (/)• Of course the 
 husband must sue alone for criminal conversation with his wife. For 
 words spoken of the wife not actionable of themselves, but which occa- 
 sion some special damage to the husband, he must sue alone (m). 
 
 *With respect to personal property when the cause of action had only r *74 ] 
 its inception before the marriage but its completion afterwards ; as in the As to ptr- 
 case of trover before marriage, and conversion during it, or of rent due sonoJ prop- 
 before marriage, and a rescue afterwards, the husband and wife may join, ^^' 
 or they may sever in trover or trespass (n). It seems that in detinue the 
 husband should sue alone (o). When the cause of action has its inception 
 as well as completion after the marriage, the husband must sue alone, the 
 legal interest in personalty being vested by the marriage in him (jt) ; and 
 therefore a declaration in trover at the suit of husband and wife, should 
 state that the wife was possessed before the marriage, or held the goods 
 with him in her character of executrix ; and if it be merely stated that the 
 husband and wife were possessed, the defendant may demur ; for the pos- 
 session of the wife is in law the possession of the husband, and the proper- 
 ty vests in him exclusively (jq). The same rule prevails in replevin ; but 
 if the husband and wife join as plaintiffs in that action, although the dec- 
 laration is bad on demurrer, if no special cause for joining her be specifi- 
 cally shown therein (r); yet, if the defendant, instead of demurring, avow 
 the taking, it will, after verdict, be intended, (if the declaration show noth- 
 iHg to the contrary,) that the taking was before the coverture, and that 
 the plaintiffs then had a just property ; or that the wife held the goods 
 as executrix ; in either of which cases she might be joined (s). Though 
 the wife may join in trespass for cutting down com upon her land, yet 
 
 (A) 1 Sid. 346, 386; Ld. Eaym. 1208; Com. Bar. & Feme, K. 
 
 Dig. Bar. & Feme, V. ; Pleader, 2 A. 9; 3 Bl. (o) Ante, 73; Bac. Ab. Detinue; Bui. N. P. 
 
 Com. 140; 1 Salk. Ill; Yelv. 89; 2 Keb. 53. 
 
 387. pi. 63; Freem. 224. {p) 2 Saund. 47 h. 1.; Salk. 114. 117; 2 
 
 (i) 1 Salk. 119; Com. Dig. Pleader, 2 A. 1. Bla. Rep. 1236; 2 C. & P. 34. 
 
 \k) 3 Bla. Com. 140; Cro. Jac. 538; 1 (g) 2 Saund. 47 i. 1 Salk. 114; Coin. Dig; 
 
 Stra. 61; 2 Stra. 977; Com. Dig. Bar. & Pleader, 2 A. 1. 
 
 Feme, W. (r) 2 New Rep. 405; see 7 Taunt. 72, re- 
 
 (J) Cro. Jac. 501; 1 Salk. 119; Selw. N. plevin by the wife only. 
 
 P. 286, 5th edit.; Year Book, 9 Edw. 4, 51. (s) Bourn and wife v. Mattaire, Bui N. 
 
 (m) 1 Sid. 346; 2 Keb. 387, pi. 63; ILev. P. 53; Selw. N. P. Bar. & Feme, III. 6th 
 
 140; 2 Mod. 125; 1 Salk. 119. edit. 298; Com. Dig. Pleader, 3K. 10 ; see2 
 
 (71) 2 Saund. 47 h.; 1 Salk. 114;2Xev. New Eep. 407. 
 107; Com. Dig. Bar. & Feme, X.; Bao. Ab. 
 
 (1) But if the wife die after judgment, the judgiiient siirvives to the husband. Strottp Vi 
 Swarts, 12 Serg. & Rawle, 76. 
 
 (2) Lewis V. Babcock, 18 Johns-. 448; 
 
74 OP TSB PARTIES TO ACTIONS. 
 
 ^ she cannot for carrying itaway(<). However, a feme covert executrix 
 r^^"*^"^ may and ought to join with her husband ; the declaration stating the in- 
 of mar"*'* terest, and showing that she sues in autre droit (a). And there are some 
 riage. cases in which, though the produce of the wife's labor be the property of 
 With re- tjje husband, yet in respect of her being the meritorious cause of action, 
 r«aiprop- ^^® °^^ be joined, as in the case of the dippers at Tunbridge Wells {x), 
 erty. In real actions for the recovery of the land of the wife, and in a writ 
 
 of waste thereto, the husband and wife must join Qf'), But where the ac- 
 tion is merely for the recovery of damages to the land or other real pro- 
 perty of the wife during the coverture ; or for a tort, which prejudices a 
 L * " J remedy by husband and wife, as in the case of quare impedit, *a rescue, 
 <fec. the husband may sue alone (z) (1), or the wife may be joined (a) ; 
 her interest in the land being stated in the declaration. But a demand 
 for removal of personal property, as corn or grass when severed from the 
 land, ought not, in the latter case, to be included, because, as we have 
 seen, the entire interest in personalty is vested in the husband (6) (2). 
 
 If the husband survive, he may maintain an action of trespass, &e. for 
 any injury in regard to the person or property of the wife, for which he 
 might have sued alone during the coverture. Thus, he might maintain an , 
 action after his wife's death for any battery or personal tort to her, which 
 occasioned him particular injury ; as the loss of her society and assistance 
 in his domestic affairs ; or a pecuniary expense (c) ; or for any injury tff' 
 the land of the wife when living {d). If the wife die pending an action 
 by her husband and herself for any tort committed either before or during 
 coverture, and to which action she is a necessary party, the suit will 
 abate (e). 
 
 If the wife survive, any action for a tort committed to her personally, 
 or to her goods or real property before marriage or to her personal or 
 real property during coverture, will survive to her (/) ; and she may in- 
 clude in the declaration in such action counts for wrongs committed after 
 her husband's death (g). 
 
 Conte- The consequences of a mistake in the proper parties in the case of hus- 
 
 gucTicetof band and wife, may be collected from the preceding observations, and seem 
 ornm^'^ to be nearly the same in action in form ex delicto as in those ex contrac' 
 joimUr. tu (Ji). If the wife be improperly joined in the action, and the objection 
 appear from the declaration, the defendant may in general demur, move in 
 arrest of judgment, or support a writ of error (i) ; though we have 
 
 (0 Wils. 424; Cro. Eliz. 133; Salk. 119. 428, 424; 2 Bla. Bep. 1236; Cro. Car. 418, 
 
 (u) 1 Salk. 114; Wentw. Exec. 207; Bro. 437: Com. Dig. Bar. & Feme, V.X.; Plead- 
 
 Bar. & Feme, pi. 85. Boame v. Mattaire, er, 2 A. 1. 
 
 anU, note (s). (6) AnU, 72, 73; 1 Salk. 119, note (A). 
 
 (i) 2 Wils. 414, 424; Com. Dig. Bar. & (c) AnU, 73. 
 
 Feme, X.; ante, 75. \d) Com. Dig. Bar. & Feme, Z., 
 
 (y) IBulst. 21; 7 H. 4, 15 a.; 3 H. 6, (e) Freem. 225; Telv. 89; 4 Tannt. 881. 
 
 63; Com. Dig. Bar. & Feme, V. Wife must (/) Eep. temp. Hardw. 898,399; Freem. 
 
 join in an ejectione flrvue, thoagb egeetion 224; Palm. 313. 
 
 after marriage, Plowd. 418. (g) Falm. 318; Com. Dig. Bar. & Feme, 
 
 («) Bro. Bar. & Feme, pL 15, 128, 4; 2 A. 
 
 Selw. N. P. 291, 5th ed. ; 295, 6th ed. ; Com. (A) Ante, 33, 59; 3 T. R. 631. 
 
 Dig. Bar. & Feme, X. (i) 1 Salk. 114, 110; 2 Bla. Kep. 1286; 
 
 (a) Com. Dig. Bar. & Feme, X.; 2 Wils. 2 Chit. Eep. 697. 
 
 (1) Jackson v. Hopkins, 19 Wend. 339. 
 
 (2) Hosband and wife cannot maintain a joint action tat a pwuitf giren by itatote. 
 (Stmble.) Hill and vife v. Davis, 4 Mass. 137. 
 
IN FORM EX DELICTO.— DEPENDANTS. 75 
 
 seen that after Terdict the mistake may sometimes be aided by intend- *• 
 ment (A) (1). If the husband sue alone when the wife ought to be joined ^'^™'^™ 
 either in her own right or in autre droit, he will be non-suited; for though l\ ^f 
 in general the non-joinder of the party as co-plaintifp in an action for a tort riage. 
 can only be pleaded in abatement ; yet that rule only applies in those cases 
 in which the party suing had some legal interest in his own right in the pro^ 
 perty affected. A husband has, independently of his wife, no legal interest 
 or cause of action whatever for injuries to her, or her property, in those 
 instances in which it is necessary to join her as a plaintiff in an action. 
 
 *1I DEFENDANTS. j- *7g j 
 
 In personal or mixed actions;, in form ex delicto, the person committing ix. 
 the injury, either by himself or his agent, is in general to be made the de- defend- 
 fendant J but real actions can only be supported against the claimant of ist'^A*^ , 
 the freehold (I). The general rule is, that all persons are liable to be tween the' 
 sued for their own tortious acts, unconnected with, or in disaffirmance original 
 of, a contract. ' Therefore, although an infant cannot in general be sued in ^*5'^°"''h 
 an action in form ex contractu, except for necessaries, he is liable for all referlnoe 
 torts committed by him, as for slander ; assaults, and batteries, &c. (to) ; to liability 
 and also in detinue for goods delivered to him for a purpose which he has ^"^*°**- 
 failed to perform, and which goods he refuses to return (w) (2). But a 
 plaintiff cannot in general, by changing his form of action, charge an 
 infant for a breach of contract ; as for the negligent or immoderate use 
 of a horse, &c. (o) (3), nor can he be a trespasser by prior or subse- 
 quent assent, but only by his own act (p). A married woman is liable Married 
 for torts actually committed by her, though she cannot be a trespasser ^o™*"' 
 by prior or subsequent assent (g). And althongh a lunatic is not puuish- 
 
 (k) ^n<e, 33,59; Ashton'sEntr, 61. (n) 1 New Bep. 140. 
 
 (I) Booth, 3 28, 29 s 3 Lev, 330. (a) 8 T. B. 335. 
 
 (m) 8 T. B. 836, 387; Bac. Abr. Ini&ncy (p) Co; Lit. 180 b. o. 4< 
 
 H. (3) Id.; post, 80, n. (p). 
 
 (1) Lewis V. Babcock, 18 Johns. 443. 
 
 (2) Per Curiam, 3 Pick. 934. So an infant is liable in trover. Vasse v. Smith, 6 Cranoh, 
 231. But by electing totoing trover, the plaintiff cannot convert a case founded on contract, 
 and upon which an infant would not be liable, into a tort so as to charge him. Curtin v. Patton, 
 11 Serg. & Rawlei 310; Wilt v. Welsh, 6 Watts, 1. See Schenok v. Strong, 1 South, 87. 
 
 (3) But an infant who hires a horse to go to a place agreed on, but goes to another place 
 in a different direction, is liable in trover for an unlawful conversion of the horse. Homer 
 V. Thwing, 3 Pick. 492. Contra Schenck v. Strong, 1 South, 87. The court of errors in 
 New Tork decided, that if an infant having a horse on hire, does a wilful and positive act, 
 amounting to an election, on his part, to disafSrm the contract of hiring, the owner was entitled 
 to the immediate possession. And where an infant drove a mare, which he had on hire, with 
 such violence as that she died of his cruel treatment ; held, that though case would not lie, tres- 
 pass might be maintained against him. Campbell v. Stakes, 2 Wend. 137. Independent of the 
 contract of hiring, trespass would be the proper remedy. If the plaintiff orders in case, he 
 affirms the contract of hiring, and the plea of infajioy is a good defence to Such an action; for 
 he cannot affirm the contract, and at the same time, by alleging a tortious breach thereof j deprive 
 the defendant of his pica of iofoney, ib. 
 
DBFEKD*- 
 ANIS. 
 
 76 a OF THE PAETIE8 TO ACTIONS. 
 
 able criminally, he is liable to a civil action for any tort he may com- 
 mit (y) (1). 
 
 Me^° ^'" With regard to the liability of corporations, it is a clear general rule 
 Lunatics, that they are liable to be sued as such in case or trover for any torts they 
 Corpora- may cause to be committed (s) (2). It has been laid down that a corpora- 
 tions, ^j^^ cannot be sued in its corporate capacity in trespass (t) ; but this posi- 
 tion appears to be incorrect, for although a corporation cannot, as a cor- 
 porate body, actually commit a trespass, yet they may order it to be done> 
 and ought therefore to be responsible for the consequences (u). In these 
 cases it is often very material to fix the corporation with liability, and to 
 be entitled to redress from the corporate funds, rather than to be driven 
 to a remedy against servants of the corporation. It seems that a corpora- 
 tion may be sued for a false return (x) (3). 
 
 The inhabitants of a county are not a corporation, and therefore can- 
 not be sued by that description for an injury occasioned by the neglect to 
 build a public bridge, or for any other injury arising from the neglect of 
 the county at large (y). 
 r *77 ] It is a general rule that corporations and incorporated companies *may 
 Compa- be sued in that character, for damages arising from the breach by them of 
 '"^' a duty imposed upon them by law (4). An individual who has suffered 
 
 loss in consequence of the decay of sea walls, which a corporation is di- 
 rected to repair, under the terms of a grant for the crown, conveying a 
 
 (r) Hob. 134; 2 East, 104; Bac. Abr. Tres- (u) See 16 East, 7, &c., per Lord Ellen- 
 pass, G., Idiot, E.; 2 Roll. Ab. 547, pi. 4, E. borough. 
 
 («) 16 East, 6; Smith v. Birmingham Gas (x) Id. 
 Light Company, 1 Adol. & El. 526. (j) 2 T. E. 667; see 11 East, 847, 355. 
 
 (() Bro, Corporation, pi. 43; Bac. Abr. 
 Trespass, E. 2; 8 East, 230. 
 
 (1) Es parte Leighton, 14 Mass. 207. The institution of a suit against a lunatic pending a 
 proceeding in chancery and after lunacy found is improper. 5 Paige Ch. 489. An action at law 
 cannot be sustained against a person in the character of guardian of a lunatic, without joining 
 the non compos in the action as a party defendant. He must be a party plaintiff yhen suing, 
 and a party defendant when sued. Kogers v. Ellison, 1 Meigs, 88. 
 
 (2) Trespass on the case lies against a corporation aggregate for a tort. Chestnut Hill Tump. 
 Co. V. Butter, 4 Serg. & Rawle, 6. See tte early English cases cited by Ch. Justice TilghaM, 
 in his opinion. See also Gray v. The Portland Bank, 3 Mass. 364. 
 
 (3) Corporations are liable, by the common law, in the actions of trespass, trover, trespass 
 on the case ex delicto, &c. for torts commanded or authorized by them, and for this purpose the 
 acts of their agent? are regarded as the acts of the corporation. Hawkins v. Dutchess. &o. 
 Steamboat Co., 2 Wend. 452; M'Cready v. Guardians of the Poor, 9 Serg. & R. 94; Lyman v. 
 White River Bridge Co., 2 Aik. 255; 2 Hill, 573; Goodlowe v. City of Cincinnati, 4 Haw. 500* 
 514; Hamilton Co. v. Cincinnati, &c., Wright, 603; Kneass v. Schuylkill Bank, 4 Wash. C. C. 
 106; Beach v. Fulton Bank, 7 Cowen, 487; Edwards v. Union Bank, 1 Branch, 136. 
 
 An action cannot be maintained against a corporation aggregate for an Eissault and battery, 
 Orr V.' Bank of United States, 1 Ham. 36. 
 
 (4) An action on the case will lie against a corporation for the neglect of a corporate duty, 
 as for not repairing a creek as from time immemorial they had been used. Mayor of Linn v. 
 Turner, Cowp. 86; Riddle v. Proprietors, &c., 7 Mass. 169; Townsend v. Susquehannah Turn- 
 pike Company, 6 Johns. 90; Steele ». W. Lock Company 2 Johns. 283. So it will lie against 
 them for the negligence of their subordinate agents, although not immediately employed by them. 
 Matthews v. West London Water Works Company, 3 Campb. 403. Corporations created for 
 their own benefit stand on the same ground in this respect as individuals, but quasi corporation! 
 created by the legislature for purposes of public policy, are subject, by the common law, to an 
 indictment for the neglect of duty enjoined on them, but are not liable to an action for any 
 neglect unless the action be given by some statute. Mower v. Inhab. of Leicester, 9 Mass. 247; 
 
IN FORM EX DELICTO. — DEPENDANTS. 77 
 
 borough, and pier, or quay, -with tolls, to the corporation, may sue the "• 
 corporation for the recovery of damages (sr) (1). The Bank of England ^"amt"' 
 are liable to an action if they improperly refuse to transfer stock (a) ; or ^ wholi- 
 are guilty of unreasonable delay in the passing of a power of attorney to able, 
 transfer it (6) ; but they are not liable for refusing to pay dividends due 
 upon stock if they have, not received the dividends from government (c). 
 
 The London Dock Company is liable in case for the carelessness of 
 their servants in unloading goods, although the company derive no profit 
 from the labor (rf) ; and an action lies against an unincorporated water- 
 works company, if workmen employed by the persons contracting with 
 the company to lay down pipes for conducting water through a public 
 street, are guilty of negligence in performing the work, in consequence of 
 which a passenger is injured (e). 
 
 But trustees and commissioners acting gratuitously in the execution of Commis- 
 acts of parliament for the benefit of the public, and entrusted with the sioners or 
 conduct of public works, are not liable in damages for an injury occasion- ^™dera 
 ed by the negligence or unskilfulness of workmen and contractors neces- statute. 
 sarily employed by them in the execution of the works (/). Upon this 
 principle, where the defendant, as a trustee under a turnpike act, being 
 authorized to cut a drain, had ordered it to be cut in an improper manner, 
 it was decided that he was not liable for a resulting injury, as it appeared 
 that he' acted bonafid^ according to the best of his judgment, and under 
 the best advice he could obtain (g-). And in another case (A), the clerk 
 to commissioners for making a road under an act which contained a clause 
 directing actions to be brought against such clerk for acts done by the 
 trustees, was holden not to be liable to an action for, an injury sustained 
 in consequence of heaps of dirt being left by the laborers employed by 
 the side of the road, and no lights being placed to enable persons to avoid 
 such heaps. And if a statute enable trustees to do an act, and do not 
 give compensation, they are not liable for a consequential injury resulting 
 to an individual from the act done in pursuance of the statute (i). 
 
 . But if commissioners or trustees under an act of parliament order 
 something to be done which is not within the scope of their authority (A) ; 
 *or are themselves guilty of negligence in doing that which they are em- [ 78* ] 
 powered to do ; or are guilty of arbitrary, wanton, or oppressive conduct 
 (J) ; they render themselves liable to an action, although they are not an- 
 swerable for the misconduct of persons they are obliged to employ in the 
 execution of orders properly given (m). Therefore, an action was held 
 to be maintainable against commissioners of the lottery, who were com- 
 pensated for their services, for their negligence, &c. in not adjudging a 
 prize to the holder of a ticket entitled to receive it (w). And persons 
 who negligently or unskilfully perform work, or omit proper precautions 
 
 (z) 5 Bing. 91. 2 Bing. 162. 
 
 (a) 5 Bing. 108. (A) 4 M. & Sel. 27. See 2 Bing. 162. 
 
 (i) ICar. & B. 193. ' (i) 2B. & C. 703; 4 D. & R. 195, S. C. 
 
 («) 5 B. & P. 185; 7 D. & B. 828, S. C. (ft) 3 Wila. 461; 2 Bla. Rep. 924; 2 B. & 
 
 See S. C. 2 Bing. 393. C. 710; 4 D. & R. 195, S. C. 
 
 (d) 4 Campb. 72. (^ 2 B. & C. 707. id. &c, 
 
 {e) 3 Campb. 403. See post, (m) 2 Bing. 159, per Best, C. J.; 2 B. & 
 
 (/) 2 Bing. 156. C. 707, &o. 
 
 (g-) 1 Marsh. 429; 6 Taunt. 29, S. C. See (n) 6 T. E. 646; 2 Bing. 161. 
 
 J GoBhen T. Co. v. Sears, 7 Conn, 87. 
 
78 OP THE PJJJTIEffl TO ACTIONS. 
 
 II- ia the course of the necessary repair of a sewer, under the authority of 
 DEPEND- ^j^g commissioner of seioers, are liable to an action for the consequential 
 
 wh 1- ^'^J^^y sustained by an individual (o.) 
 able J^i action cannot be maintained against a civil or ecclesiastical judge or 
 
 Jadiciai justice of the peace, sbcting judicially in a matter within the scope of his 
 and other -jurisdiction, although he may decide erroneously in the particular case 
 
 public offi--', N/-,x 
 
 cers.&c. (P) (!)• . r . ■, 
 
 Nor can an action be maintained against a juryman {q), or the attorney- 
 general (»•), or a superior military or naval officer (2), for an act done iu 
 the execution of his office, and within the purview of his general authority. 
 And commissioners of bankrupts are not liable to an action of trespass for 
 committing a person who does not answer to their satisfaction when exam- 
 ined before them touching the bankrupt's estate and effects {t). 
 
 But if a public officer have no jurisdiction whatever over the subject- 
 matter, and his proceedings are altogether coram nonjudice, he is responsi- 
 ble (m). And it was held, that if a justice of the peace acting ministe- 
 rially refuse an examination upon the Statute of Hue and Cry, he is liable 
 to an action (x). And it has been observed with regard to the liability of 
 ministerial officers not acting gratuitously, that " if a man take a reward; 
 whatever may be the nature of that reward, for the discharge of a public 
 duty, that instant he becomes a public officer ; and if by an act of negli- 
 gence, or any abuse of his office, any individual sustain an injury, that in- 
 dividual is entitled to redress in a civil action" Qy'). But magistrates can- 
 not be affected as trespassers, if facts stated to them on oath by a com- 
 
 L ' " J plainant were such whereof they had jurisdiction to inquire, and *nothing 
 appeared in answer to contradict the first statement {z). And before;; 
 any action can be brought against a magistrate for any thing done in the 
 discharge of his duty, it must appear that his attention was drawn to all 
 the facts necessary to enable him to form a judgment as to the course he 
 ought to have pursued (a). 
 
 Tenants in tV"ith regard to joint-tenants and tenants in common oi realty, the general 
 
 common, ^^j^ appears to be that ejectment will lie by one against the other only in 
 
 (0) 5 B. & A. 837; 1 D. & R. 497, S. C; (t) IB. & C. 163; 2D.& R. 35z',^. G. See 
 
 2B. & C. 710, 711; 4 D. & R. 201, 202, Eden, 2d edit. 97, 98. 
 
 S. C. (u) 3 M. & Sel. 425; 1 B. & C. 163; 2D. 
 
 (p) 1 Salk, 306; Vaugh. 138; 12 Co, 24; &R. 360, S. C. 
 
 Ld. Raym. 466; 5 T. R. 186; 6 Id. 449; 3 M. (z) ILeon. 323. The Statute of Hue and 
 
 & Sel. 411. As to justices in general, post. Cry was repealed by 7 & 8 Geo. 4, c. 27, and 
 
 "Trespass." f other provisions substitnted by chap. 31. 
 
 ({) 1 T. R. 513, 514, 535, (i/) Per Best C. J. 5 Bing, 108. 
 
 (r) 1 T. R, 514, 535. («) 8 East, 113. 
 
 («) 1 T. R. 493, 520, 784; 4 Taunt. 67; (a) 3 Bing. 78. 
 2 0. & P. 146. 
 
 (1) Vide Yates v. Lansing, 5 Johns. 282, S. 0. 9 Johns. 365. Briggs v. Wardwell, 10 Mass, 
 356. Phelps v. Sill, 1 Day, 315. The following additional cases were here cited by Day in the 
 former edition; Book of Assize, 27 Ed. 3 pi. 18. 21 Ed. 8 Hil. pi. 16. 9 Hen. 6. 60. pi. 9. 9 
 Ed. 4. 3. pi. 10. 21 Ed. 4, 67. pi. 49. Standf. P. C. 173. Aire u. Sedgwick, 2 Ro. 199. Ham- 
 mond V. Howell, 1 Mod. 184. S. C, 2 Mod. 218. Miller v. Searle, 2 Bla. 1145, Mostyn v. 
 Eabrigas, Cowp. 172. Vide Brodie v. Rutledge, 2 Bay, 69. Moore v. Ames, 3 Caines, 170; 
 Young V. Herbert, 2 Nott & M. 168; Ely v. Thompson, 3 Marsh. 76; Little v. Moore, 1 South. 
 74; Tracy v. Willi.ims, 2 Conn. 118; Tompkins v. Sands, 8 Wend. 468; Evans v. Foster, 1 N. 
 Hamp. 374; Cunningham v. Rucklin. 8 Cowen, 178> 
 
 (2) Vanderheyden v, Young, 11 Johns. 158, 
 
IN FORM EX DELICTO. — DEPENDANTS. 79 
 
 the case of an actual ouster (6) (1) ; and after a recovery in such ac« "• 
 tion, trespass for mesne profits may be brought (c). So trespass will lie ''^^ 
 where there has been a total destruction of the subject matter of the ten- ^ ™, j.^ 
 ancy in common ; or if one tenant in common destroy the whole flight of able, 
 a dove-cote, or all the deer in their park (d) ; or if one grub up a hedge 
 (e), or destroy a wall (/), holden in common. But if the wall, being 
 old, be pulled down by one tenant in common with the intention of re- 
 building it, and a new wall be accordingly erected, this is not such a to- 
 tal destruction of the wall as will enable his co-tenant to maintain tres- 
 pass (i^). And in other cases where there has not been a total destruc- 
 tion of the subject-matter of the tenancy in common, but only a partial 
 injury to it, waste, or an action upon the case, will lie by one tenant in 
 common against the other ; as if one tenant in common of a wood or pis- 
 cary does waste against the will of the other, he shall have waste ; or if 
 one corrupt the water, the other shall have au action upon the case. 
 There are other cases where the only remedy is to retake the property (A). 
 
 With respect to a tenancy in common of a chattel, the rule is, that one 
 tenant in common cannot sue his co-tenant if he merely take the chattel 
 away ; for in law the possession of one is the possession of both, and each 
 has equally a right to take and retain such possession (t) (2). But if 
 one of the tenants in common destroy (8), misuse, or spoil the chattel, 
 the other may maintain an action at law (A) (4). 
 
 If a third person collude with one partner in a firm to injure the other Against a 
 partners in their joint trade, the latter may maintain a joint action against Pu^'P*' "' 
 the person so colluding (T). son coilud- 
 
 All persons who direct or order the commission of a trespass, or the ing with 
 conversion of personal property, or assist upon the occasion, are in general ^™- 
 liable as principals, though not benefited by the act (m) (5) ; and there* uabie as 
 fore trover may be supported against a person who illegally *makes a pHncipalt. 
 
 (6) SeeSalk. 285; 1 East, 568; Adams on {h) Per Littledale^ J. 8 B. & C. 268; % 
 
 Ejectment, 2d edit. 52, 53, 81, 89. M. & R. 272, S. C; 4 East, 117, 121; Co. 
 
 (e) 3 Wils. 118. Lit. 200 a, 8 T. E. 145; 2 Saund. 47 h; 1 T. 
 
 id) Com. Dig. Estates, K. 8; 8 B. & C. B. 658. 
 
 268; 2 Man. & Ry. 272, S. C. (i) Id. ibid. 
 
 («) Gow. 2C^1. As to the property in trees (fc) Id. ibid. 
 
 growing in a hedge, dividing two estates;, 1 M. (l) Longman and others v. Pole andothera, 
 
 & M. 112. 1 Mood.. & Mai. 223. 
 
 (/) 2 Taunt. 20; 8 B. & C. 257; 2 Man. & (m) 1 Saund. 47 i; Bal. N. P. 41; 6 T. R. 
 
 Ry. 267, S. C. 300; ],B. & P. 369; 2 Bsp. R. 553; 1 Campb. 
 
 (ff) 8 B. & C. 257; 2 M. & R. 267, S. C. 187. 
 
 (1) Erwin v. Olmstead, 7 Cow. 229. So he may though there has been no actual ouster 
 proved. Per Spencer, C. J. Shep^ard v. Ryers, 15 Johns. 501. See the oases cited in note (a) 
 by the Reporter. 
 
 (2) Cowan v. Bayers, Cooke, 53. 2 Gaines, 167. Oviatt v. Sage, 7 Conn. 95. 
 
 (3) 2 Caines, 167. See Lowthorp v. Smith, 1 Hayw. 25S. Vide Webb ». Danforth, 1 Day, 
 301. Litt aeo. 823. 
 
 (4) Vide St. Johns v. Standring,. 2 Johns. 468. So, if one oo-tenant sell the thing holdeo in 
 common, the other may bring trover against him. Wilson and Gibbs i>. Reed, 3 Johna^ 175. 
 Thompsons. Cooki, 2 South. 580. Heath a. Habbard, 4 East, 110. SimbU contra. One ten- 
 ant in common may convert the chattel to its general and profitable use, althoughtit change the 
 form or the substance, as wheat into flour, a whale into oil, &o. without subjecting himself to 
 an action by the other. Fenuings w. Lord Grenville, 1 Taunt. 241. One tenant in common of 
 real property cannot sue the other to recover possession of the documents relative to their joint 
 estate. 'Clowes v. Hawley, 12 Johns. 484. Bat he may sustain an action on the case against 
 him for destroying them. Daniels v. Daniels, 7 Mass. 10; and for negligence, in consequence of 
 which a mill of which they were seized in common was burned. Chelsey a. Thompson, 3 New 
 Hampshire, 1. 
 
 CS) Vide Thorp v. Burling, 11 Johns 285. 
 
 YoL. I. 13 
 
gQ OP THE PARTIES TO ACTIONS. 
 
 ifc distress or seizes goods, though the same were taken by him ia the char- 
 OTFEND- g^g^gj. Qf bailiff for another, or as a custom-house officer, &c. (w) (1). 
 ^''"' And where several are concerned, they may be jointly sued (2), whether 
 \'^^o 1'- they assented to the act before or after it was committed (o), unless the 
 party be an infant or a feme covert, who, we have seen, cannot be sued in 
 respect of a subsequent assent (p), and no person can be guilty of a foi;- 
 cible entry by such assent (7). And it may appear unnecessary to say, 
 that if a person does not assist in a trespass either in word or deed he is 
 not liable, though it may have been done by a person assuming to act oh 
 his behalf (r). Nor can a pound-keeper be sued, merely for receiving ia 
 the pound a distress illegally taken (s). If, however, a person sue out 
 execution, and give a bond of indemnity to the sheriff to induce him to 
 sell the goods of another, this is a suf&cient interference to subject him to 
 an action (t) : so if he be in company with the sheriff's officer at the time 
 of the execution (m) ; or he adopt his acts by receiving the goods or 
 money (x) ; but the mere act of making an inventory or drawing a no- 
 tice of distress by a stranger, is not such an interference as will subject 
 him to an action (2/). Although trespass may be supported against a 
 sheriff for the act of his bailiff in taking the goods of A. under an execu- 
 .tion against B. (sr), it cannot be brought against the plaintiff in the ac- 
 tion, unless he actually interfered or assented to the levy (a). And in 
 general where goods are sold under the authority of a sheriff in the exer- 
 cise of his official duty, he is the proper party to be made defendant in 
 an action by the owner for selling his goods, and a bona fide purchaser 
 without notice at the sale cannot be sued (&) ; but the purchaser of the 
 goods of B. illegally taken by the sheriff under an execution against C. 
 is liable to be sued in trover by B. ; because in that case the seizure and 
 sale are wholly unauthorized by the writ (c). 
 
 In some cases a party may be liable to be sued for a tort, though in fact 
 he neither committed the act, nor assented to the commission of it. Thus 
 a master or principal is liable (3) to be sued for injuries (4) occasioned 
 
 (n) -Ante, 79, n. (m); 1 Campb. 843; post, (x) 1 M. & Sel. 583, 599; Stra. 996. 
 84. (y) 2 Esp. Kep. 553. 
 
 (0) 2 Bla. Eep. 1055; 1 Salk. 409; 2 Rol. (s) 3 Wils. 309. 
 
 1, 7, 355; Com. Dig. Trespass, C. 1; Co. Lit. (a) Id. ibid. See a quiere whether receipt 
 
 180 b, n. 4; Cowp. 478; 3 Wils. 877; Lane, of the money is an interference, 1 Mont. B. 
 
 SO. L. 476; 1 M. & Sel. 588, 599. 
 
 (p) Co. Lit. 180 b. note 4; anU, 76. (6) 5 Eol. Ab. 556, pi. 50; Bro. Ab. Trea- 
 
 Iq) Id. ibid. pass, pi. 48; 1 M. & Sel. 425; 8 Co. B«p, 
 
 (r) Timothy v. Simpson, 6 Car. & P. 499. 191; Yelv. 179; 1 Ld.Raym. 724. Batland- 
 
 («) Cowp. 476; 1 T. R. 60, 62; Sir T. lord may sue purchaser of fixture from tenant, 
 
 Jones, 214. Sed vide 8 Campb. 36. id.; 2 D. & B. 1. 
 
 (0 Bui. N. P. 41. (c) 3 Stark. 135; 2 D. E. 1. 
 
 (it) 1 B. & P. 369. 
 
 (1) Vide Hoyt v. Gelston, 18 Johns. 141. 
 
 (2) Vide Bishop v. Ely, 9 Johns. 294; Thorp v. Burling, 11 Johns. 286. A demand upon 
 and refusal by a person, who claimed property, and his vendee, who together had possession, 
 was held to prove a joint conversion. Chamberlin v. Shaw, 18 Pick. 278. 
 
 The removal and retention of the personal property of a stranger, by an officer acting by di- 
 rection of the party, is a conversion by both, aside from any demand and refusal. Calkins v. 
 Lockwood, 17 Conn. 164. 
 
 Where the plaintiff, in an action of trover against B. & C. introduced evidence proving a con- 
 Ttrsion by B. only, without the participation or knowledge of C. , it was held, that it was not 
 then competent to the plaintiff to prove a distinct conversion by C. Forbes v. Marsh, 15 Conn. 
 384. 
 
 (3) And although the master derive no advantage from the labor of the servant. Gibson v. 
 Ingles, 4 Campb. 72. 
 
 (4) Therefore yrl^er^ the defendant was possessed of a loaded gun, and sent a young 
 
IN FORM EX DELICTO. — DEFENDANTS. . •81 
 
 by the negligence or unskilfulness of his servant or agent whilst in the n. 
 Course of his employ though the act was obviously tortious ; as if he laid lime "^'jg"' 
 in the street without any directions for that *purpose from the principal(d); j yjy^ 
 so for the negligent driving of a carriage (1) or navigating a ship (e)(2), liable, 
 (even whilst the servant was driving out of the direct road, and for his 
 own purpose (/) ; or for a libel inserted in a newspaper of which the de- 
 fendant was the proprietor (g-) ; and the party in a cause is liable for any 
 irregularity in the proceedings of his attorney(/i), or his attorney's agent(i). 
 The principal is also liable not only for the acts of those immediately em- 
 ployed by him and by his steward or general agent, but even for the act of ^ 
 a sub-agent, however remote, if committed in the course of his service (k) ; 
 and a corporate company, acting for its own benefit, is liable to be sued 
 for the negligence of its servants (Z). But a party is not liable for the 
 act of another, unless the latter acted as his servant at the time when t/ie 
 injury was committed (m) ; and therefore a person who hires a post-chaise 
 is not liable for the negligence of the driver, but tlie action must, it seems 
 be against the driver or the owner of the chaise and horses (w)(3). Where 
 the owner of a carriage hired of a stable-keeper a pair of horses, to draw 
 it for a day, and the owner of the horses provided a driver, through whose 
 negligent driving an injury was done to a horse belonging to a third person, 
 the court were equally divided in opinion upon the question, whether the 
 owner of a carriage was liable to be sued for such injury (o)(4). If a 
 
 (d) 1 East, 106; 2 Hen. Bla. 442; 3 Wila. (i) 6 B. & C. 38; 9 D. & R. 44, S. C. 
 
 317; 1 Bos. & Pal. 404; 1 Bla. Com. 431; (ft) 1 B. & P. 404; 6 T. R. 411i 4 M. & 
 
 2 Lev. 172; Ld. Raym. 739; Dyer, 238; 3 Sel. 27. 
 
 Mod. 328. (I) 3 Campb. 403. Whea not, see 4 M. 
 
 (c) 1 East, 105; ante, 80, n. (c). But the & Sel. 27; ante, 77. 
 
 owner of a ship is not liable for the neglect of (m) 1 East, i06; Kep. temp. Hardw. 87. 
 
 a pilot he was obliged to take on board. 6 B. (n) 5 Esp. Rep. 35; 1 B. & P. 409, semile 
 
 & C. 657; 7 D. & R. 738, S. C; 2 Bing. 219. contra ; and it would perhaps be otherwise if 
 
 (/ ) Joel V. Morrison, 6 Car. & P. 501. the party hired a carriage, but furished the 
 
 (g) 1 B. & P. 409. coachman and horses. 4 B & Aid. 590. 
 
 (A) 2 Bla. Rep. 845; 8 Wils. 341, 368; (o) 5 B. & C. 547; 8 D. & R. 556, S. C. 
 ante, 80. 
 
 girl to" fetch it, with directions to another person to take the priming out, which was according- 
 ly done, and a damage occurred to the plaintiff's son, in consequence of the girl's presenting 
 the gun at him, and drawing the trigger, by which the gun went off, it was held that the defend- 
 ant was liable to damage in an action upon the case. Dixon ». Bell, 5 Mau. & Selw. 198. So, 
 if a man's servant, in the ordinary course of his business, obstruct the highway, from which a 
 traveller receives an injury, the master is liable. Harlow v. Humiston, 6 Cowen, 189. 
 
 (1) So if one of three joint proprietors of a stage coach be driving when an accident happens 
 in consequence of his negligence, the others, though not present, are liable in an action on the 
 case, although trespass might perhaps be maintained against the one who was driving, in which 
 latter form of action all could not be joined. Moreton v. Harding, 6 Dowl. & Ryl. 275. 
 
 (2) Bat an action will not lie against the master of a ship for negligence of the pilot; even, 
 as it would seem, if the master Were on board at the time of the accident, for the pilot is master 
 pro hac vice. Snell and others v. Rich, 1 Johns. 305. But the owner of a ship is'in such case 
 liable, although the. pilot be appointed by public authority. Bussey v. Donaldson, 4 Dall. 206. 
 Fletcher v. Braddick, 2 New, 182. The captain of a public vessel is not liable for the act of one 
 of his inferior officers, done at a time when he was not engaged in the direction and management 
 of the vessel, as such inferior officer is not the servant of the captain. Nicholson and another v. 
 Mounsey and Symmes, 15 East, 384. 
 
 (3) Bishop V. Ely, 9 Johns. 294. 
 
 (4) Reported also, 8 Dowl. & Ryl. 556. The defendant was held not liable by Abbott, C. J. 
 and Littiedaie; aliter per BAtLKT and HolitOTD, Justices. In Bostwidk v. Champon, Bissel, 
 Ewers and Dodge, 11 Wend. 571, where the defendant run a line of stages from Utica to Roches- 
 ter, the route being divided into sections; one section being by Dodge; another by Ewers and 
 another; and the remainder of the route by Champion and Bissell. The occupant of each sec- 
 tion furnishing his own carriages and horses, hiring drivers and paying the ezpensw of his own 
 
81 a OV THE PAETIBS TO ACTIONS. 
 
 »• (Servant or agent wilfully commit an injury to another, though he be at the 
 "^j^" time engaged in the business of the principal, yet the principal is not in 
 1. Wlao' general liable ; as if a servant wilfully drive his master's carriage against 
 Ibble. another's (1), or ride or beat a distress taken. &jw(Zg"e/easaw<(;')- The 
 rule was thus explained in a recent case ; " if a servant driving a ca^ 
 riage, in order to effect some purpose of his own, wantonly strikes the 
 horses of another person, and produce the accident, his master will not be 
 liable. But if in order to perform his master's orders, he strikes, but in- 
 judiciously, and in order to extricate himself from a supposed dif&culty, 
 that will be negligent and careless conduct, for which the master will be 
 liable, being an act done in pursuance of the servant's employment" (5). 
 So if a servant take out his master's cart at the time when it is not wanted 
 [ *82 ] *for the purpose of his master's business, and drive it about for his own 
 purposes, the master will not be responsible for any injury arising whilst 
 so doing (f). Though if a servant, driving his master's cart on his master's 
 business, make a detour from the direct road for some purpose of his own, 
 his master will be answerable in damages for any injury occasioned by his 
 careless driving whilst so out of his road (>•) . 
 Liability of On principles of fpublic policy a sheriff is liable "civilly for the tortious 
 the sheriff act, default, extortion, or other misconduct, whether it be willful or inad- 
 andhisoffi- ygp^QQ^^ of his under-sheriff or bailiff, in the course of the execution of 
 their duties (s)(2). But if the wrong complained of be neither expressly 
 sanctioned by the sheriff, nor impliedly committed by his authority ; if it be 
 an act not within the scope of .the authority, given ; the sheriff is not re- 
 sponsible (f). And if the plaintiff in an action, or an execution creditor, 
 induce the bailiff to depart from the ordinary course of his duty without 
 the sheriff's knowledge, it is not competent to such plaintiff or execution 
 creditor to fix the sheriff for the consequences (u). 
 Liability of The distinctions with regard to the liabilities of the owners of animals 
 owners of are important, particularly as they affect the form of the action. The own- 
 animait. ^j, ^^ domestic Or other animals not naturally inclined to commit mischiefj 
 as dogs, (3) horses, and oxen, is not liable for any injury committed by 
 
 (p) 1 East, 106; Eep. temp. Hardw. 87; K. 20, S. C. 
 
 3 Wils, 217; 1 Salk. 282; 2 Kol. Ab. 553; (<) 6 B. & C. 739; 7 D. & K.733,S. C; 
 1 Bla. Com. 431. 8 B. & C. 598; 3 M. & E. 7 S. C; and see 
 
 (g) 4 B. & Aid. 590; see 9 B. & C. 591 ; further infra, 84 , 85; 9 Price, 287; 5 Moore, 
 
 4 M. & S. 500, S. C. 183; IK. &M. 310. 
 
 (r) Joel V. Morrison, 6 Car. & P. 501. (u) 6 B. & C. 789; 9 D. & R. 723, S. C; 
 
 (0 2 T. K. 121. 712; 7 Id. 267; Dongl. 8 B. & C. 598; 3 M. & R. 7. S. C. and see 
 40; 11 East, 25; 8 B. & C. 602; 8 M. & further infra, 84, 85. 
 
 in 
 
 section; and the money received as the fare of passengers being divided among the parties .- 
 proportion to the number of miles of the route run by each; and an injury happening through 
 the negligence of a driver on one of the sections; it was held, that all the defendants were joint- 
 ly liable in an action on the case at the suit of the party injured. 
 
 (1) Wright «. Wilcox, 19 Wend. 845. And an action on JAe case does not lie against a master 
 and a servant jointly, for a wilful injury done by the servant whilst driving the carriage of the 
 master, if such carriage be not employed in the conveyance of passengers, and the master he not 
 present when the injury occurs. Ibid. 
 
 (2) Grinnell v. Phillips. 1 Mass. 530. . Campbell «. Phelpa, 17 Mass. 245. Vide Hazard ». 
 Israel, 1 Binn. 240. M'Intyre ». Trumbull, 7 Johns. 35. Blake »• Shaw, 7 Mass. 505. Par- 
 rot V. Mumford 2 Esp 585. White v. Johnson, 1 Wash. 169. Moore v. Downey, 3 Hen. & 
 Mun. 127. Gorham v. Gale, 7 Cowen, 789. ^ 
 
 (3) Where in an action of trespass, upon Mass. B«vised Stat. o. 58, § 18, the injury 
 was done by two dogs together, belonging to several owners, it was held, that each owner 
 was liable bnly for the damages done by his own dqg, and not for the whole damage dm 
 
IN FORM EX DELICTO. — DEFENDANtS. 82 
 
 them to the person or personal property ; unless it can be shown that he "■ 
 previously had notice of the animal's mischievous propensity (1), or that Ts™* 
 the injury was attributable to some other neglect on his part ; it being in i. v?ho li- 
 general necessary in an action for an injury committed by such animals to able, 
 allege and prove the scienter ; and though notice can be proved, yet the 
 action must be case, and not trespass (v) (2). But if the owner himself 
 acted illegally, he may be liable even as a trespasser ; as where a person 
 in company with his dog trespassed in a close through which there was no 
 footpath, and the dog, without his concurrence, killed the plaintiff's 
 deer (x) ; and if a person let loose or permit a dangerous animal to go at 
 large, and mischief ensue, he is liable as a trespasser ; the law in such cases 
 presuming notice to the defendant of the mischievious propensity of such 
 animal {y). When respect to animals mansuetce naturce, as cows and 
 sheep, as their propensity to rove is notorious, the owner is bound at all 
 events to confine them on his own land ; and if they escape, and *commit a L °^ J 
 trespass on the land of another, unless through.the defect of fences which 
 the latter ought to repair (3), the owner is liable to an action for tres- 
 pass (4), though he had no notice in fact of such propensity (^z). But for 
 damage by animals, &c.,ferce naturce, escaping from the land of one per- 
 son to that of another, as by rabbits, pigeons, &c. no action can in general 
 be supported ; because the instant they escaped from the land of the ow- 
 ner his property in them was determined (as). And a person cannot be 
 liable for the act of cattle, unless he were the general owner, or he actu- 
 ally put them into the place where the injury was committed (6) ; nor is 
 he liable for trespass committed by his dog (c) ; and if a servant or a 
 stranger, without the concurrence of the owner, chase or put his cattle 
 into another's land, such owner is not liable ; but the action must be against 
 the servant or stranger, who, as it has been said, gains a special property 
 in the cattle for the time (rf). 
 
 The liability to an action in respect of real property may be for misfeas~ Injuries to 
 ance or malfeasance as for obstructing ancient lights : or for nonfeasance, ^'»'"'- 
 as for not taking care of premises, so as to prevent the consequence 
 of a public nuisance, as for leaving open an area door, or coal plate 
 (e) ; or for not repairing fences (/), private ways (g-), or water courses, 
 
 («> 12 Mod. 333; Salt. 662; Ld. Baym. Dyer, 25, pi. 162; Vin. Ab. Fences, Trespass, 
 
 608, 609; Dyer, 25, pi. 162; Cro. Car. 254; B. vol. xx. MS. 424; Poph. 161; Sir W.Jones, 
 
 2 Salk. 662; Bac. Ab. Action, Case, F.; 131; Latch. 119; Salk. 662. 
 
 Lutw. 90; Peake's Law of Evid. 291,292; (a) 5 Co. 104 b; Cro. Car. 387; 1 Burr. 
 
 Evidence of scienter, 2 Esp. 482; 4 Campb. 259;Bac. Ab. Game; Cro. Eliz. 547. 
 
 198. The omission of thef averment in the (4) ISaund. 27; 1 Car. & P. 119. 
 
 declaration renders it bad in arrest of judg- (c) 1 Car. & P. 119. 
 
 ment, Salk. 662; 2 M. & Sel. 238. (d) Bro. Ab. Trespass, pi. 435; 2 Eol. Ab, 
 
 {x) Burr. 2092; 2 Lev. 172; 1 Car. & P. 652; 1 East. 107. 
 
 119, S. P. (e) 3 Campb. 838,403. When not, see 4 
 
 (y) 3 East, 595, 596; 12 Mod. S33; Lord M. & Sel. 27. 
 
 Raym. 1583; Bac. Ab. Action, Case, F. (/) 4 T. R. 318. 
 
 , (a) 12 Mod. 835; Lord Baym. 606,1583; (^) 3 T. R. 766. 
 
 by the tvifo dogs. Buddington v. Shearer, 20 Pick. 477; S. C. 22 Pick. 427; Van Steenborg v. 
 Tobias, 17 Wendell, 662; 
 
 (1) Vide Vrooman v. Lawyer, 13 Johns. 339. 
 
 (2) What is sufficient notice to the owner of a dog accustomed to bite, see Smith v. Pelab, 
 Sir. 1264; Peck v. Dyson, 4 Campb. 198. ' 
 
 (3) Vide Shepherd v. Hees, 12 Johns; 438.^ 
 
 (4) lOSerg. & Bawle, 395. 
 
83 OF THE PARTIES TO ACTI0IT3. 
 
 DEFKND' 
 AKI3. 
 
 "• &c. (A). In these cases the action should in general he against the 
 JraT' party who did the act complained of, or against the occupier (i) (1) ; and 
 1. Who li- not against the owner, if the premises were in the possession of his 
 able. tenant, unless he be covenanted to repair (A) (2). But if the owner of 
 land, having erected a nuisance thereon, demise the land, an action may 
 be supported against him, though out of possession, for the continuance 
 of it ; for by tlie demise he affirmed such continuance (Z) ; and every oc- 
 cupier is liable for the continuance of the nuisance on his land, &c. 
 though erected by another, if he refuse to remove the same after notice (m). 
 "When there are several owners or persons chargeable as joint-tenants or 
 tenants in common in respect to their real property, though the action be 
 in form ex delicto, they should be made defendants, or the party who is 
 sued alone may plead in abatement (w). 
 Liability An agent or servant, though^ acting bona fide under the directions and 
 of agents, for the benefit of his employer, is personally liable to third *persons for 
 and attor- ^^7^ ^°'^* "^^ trespass he may commit in the execution of the orders he has 
 nies. received (o). If the master has not the right or power to do the act 
 
 [ *84 ] complained of, he cannot delegate an authority to the servant, which will 
 protect the latter from responsibility. Therefore a servant may be charg- 
 ed in trover, although the act of conversion be done by him for his mas- 
 ter's benefit (jo) (3). And a bailiff who distrains is liable, if the princi- 
 pal has no right of distress (ji). And a custom-house officer may be 
 sued for a wrongful seizure made by him in that character (r) (4). There 
 is no injustice in this doctrine as regards the servant ; for if the act were 
 not manifestly illegal, the indemnity of the principal to the servant against 
 the consequences is not illegal, and will, in many instances, be implied (s). 
 And where a servant received a bill of exchange, which he promisedio 
 the deliverer that his master should discount, but which the latter refused 
 to do and insisted on retaining the same as a security for a previous debt 
 from the deliverer, it was held that such deliverer might support trover 
 against the servant (<). 
 
 (A) 6 Taunt. 44. ty to an action, anU, 79, 80. 
 
 (t)4T. R. 318. {p] Id. 
 
 (k) 1 Hen. Bla. 850. (5) 2 Rol. Ab. 481. 
 
 Q) 1 SaU£. 460; 4 T. B. 320; 1 B. & P. (r) 5 Burr. 2687; 7 Price, 300; 3 Wils. 
 
 409. 146. 
 
 (m) Com. Dig. Action, Case, Nuisance, B. (s) 8. T. R. 186; Bui. N. P. 146. 
 
 (n) 1 Saund. 291; 5T. R. 661; post, 86. (t) Cranoh v. White, 1 Hodges' Rep.61; 
 
 (0) 4 M. & Sel. 259. What is considered 1 Bing. N. C. 414, S. C. 
 an interference which will subject the par- 
 
 (1) Vide Compton v. Richards, 1 Price's Ex. 27. An action does not lie for carelessly letiT- 
 ing a maple syrup in one's uninclosed wood, whereby the plaintiffs cow being suffered to run it 
 large, and having strayed there, is killed by drinking it. Bush v. Brainard, 1 Cowen, 78. So, 
 where A. sets fire to his own fallow ground, as he may lawfully do, which communicates to and 
 fires the wood land of his neighbor, no action lies against A. unless there be some negligence ot 
 misconduct in him or his servants. Clark v. Foot, 8 Johns. 421. 
 
 (2) The defendant was lessor of a house which the lessee had ceased to inhabit, for the pur- 
 pose of having it thoroughly repaired, which was done at the expense of the lessee, but under 
 the superintendence of the defendant's lessor; it was held that an action on the case was prop- 
 erly brought against the lessor, for the negligence of his workmen, in leaving open the cellar 
 door, whereby the plaintiff in the night fell in and hurt himself. Leslie v. Pounds, 3 Taunt. 
 649. 
 
 (3) See, however, Berry v. Vantries, 12 Serg. & Rawle, 89, where Mires v. Solebay. 2 Mod. 
 242, was held to be law. 
 
 (4) Vide Hoyt v. Gilston, 18 Johns. 141. 
 
IN FORM EX DELICTO. — DEFENDANTS. 84 
 
 But in order to sue a servant in trover, an actual, not a constructive, "• 
 conversion should be shown ; and the servant's reasonable and qualified re- ^^™^_' 
 fusal to deliver up the goods until he had consulted his master, and obtain- . 
 ed his sanction, does not amount to a conversion (m) . And in cases in able, 
 which a contract, express or implied, with the master, is the ground of ac- 
 tion, the servant seems not to be liable for any neglect or nonfeasance 
 which, as such servant, he is guilty of in the execution of or with relation 
 to the contract (a;). If a coachman lose a parcel, the master, not the 
 coachman should be sued ; and it seems that a servant is not liable for his 
 false warranty, or deceit, or the sale of goods by his master's orders (2/). 
 
 An attorney acting botia fide, and professionally, may not be personally 
 liable in cases where he does not exceed the line of his duty. Thus, it 
 seems, that he is not liable in case for a malicious and unfounded arrest 
 (regular in form), which may be considered the tort of his client only(z). 
 But if an attorney by himself or his agent, issue any illegal or irregular 
 process or execution in a cause, he, equalfy with the client, is liable as a 
 trespasser (a). 
 
 In general, an action for the breach of duty in execution of the office Sheriffs. 
 *of sheriff must be brought against the high sheriff (1), although the un- [ *84 ] 
 der sheriff or the bailiff of the sheriff were the party actually in default 
 (6). The under-sheriff or bailiff, cannot in general be sued ; but there 
 are some instances of misfeasance and malfeasance in which they may be 
 liable to the party aggrieved ; as if they voluntarily permit an escape, or 
 are personally guilty of extortion, or any act of trespass in executing pro- 
 cess, for in such cases the under-sheriff or officer becomes an active 
 personal wrong-doer (c). So a sheriff is liable in trover if he seize and 
 sell goods after an act of bankruptcy, although unknown to him and be- 
 fore fiat (cf). But an action is sustainable against the sheriff for the act 
 of a bailiff in taking the goods of a party under an execution of the 
 - County Court against a third person, because there the sheriff as judge of 
 that Court acted judicially (e) and a steward of a Court Baron has the 
 same privilege and protection (/). 
 
 It is a general rule that an action does not lie against a steward, mana- Intermedi- 
 ger, or agent, for damage done by the negligence of those employed by *'^ agents. 
 him in the service of his principal, but the principal, or those actually 
 employed alone can be sued. This was decided in Stone v. Cartwright (g-) 
 
 (u) 5 B. & A. 247; 1 Hodges, 61; 1 Biug. causing a suspected party to- be taken on a 
 
 N. C. 414. warrant. 
 
 (x) See ante, 34, 35; 12 Mod. 488; Say. (A) Ante, 80, 81; Cowp. 403. 
 
 41; Bao. Ab. Action on the Case, B. (c) See 12 Mod. 488; 1 Mod. 209; 1 Salk. 
 
 (V) Id.; Kol. Abr. 95 T.; Com. Dig. Ac- 18; 1 Lord Raym. 655. The statutes against 
 
 tion upon the Case for Deceit, B.; 3 P. Wms. extortion expressly render liable the bailiff or 
 
 379. officer committing it. 
 
 (a) 1 Mod. 209, cited per cur., 3 Wils. 378, (d) Garland v. Carlisle, 2 Cr. & M. 31. 
 
 379. It was there said the attorney was not (e) Tinsley v. Nassau, 1 Mood. & Malk. 52; 
 
 liable, although he knew the demand was un- and see 1 Bar. & Cres. 256 ; 2 D. & E... 407, 
 
 founded. Sed quare. S. C. ; and Holroyd v. Breare, 2 Bar. & Aid. 
 
 (0) 3 Wils. 368; 6 B. & C. 38. In 3 Esp. 473. 
 
 202, 203, Lord Kenyon is stated to have been (/) Holroyd v. Breare, 2 B. & Aid. 473. 
 
 of opinion, that an attorney acting borm fide, \g) 6 T. K. 411. 
 
 and professionally, is not liable in trespass for 
 
 (1) Vide White v. Johnson, 1 Wash. 160, 161 ; Armistead v. Marks, 1 Wash. 325. For an 
 injury done by a deputy or under-sheriff to the person or property of another, the action must 
 be the same, whether brought against the deputy or the sheriff. Campbell v. Phelps, 17 Mass. 
 246. 
 
85 IN POEM EX CONTBACTU. — DEFENDANTS. 
 
 n. and Lord Kenyon observed, "that the action must, in these cases, be brought 
 BEFEND- against the hand committing the injury, or against the owner, for whom 
 ■*'™' . the act was done." The first principal is liable on the ground that the 
 able^" ^' original authority flows from him and the tort occurs in the course of the 
 execution of work done for his benefit (A). But in these cases if the in- 
 termediate agent personally interfere, and particularly order those acts to 
 be done from whence the damage ensues, he is responsible (i) ; and it 
 was therefore held, in an action on the case for obstructing the plaintiff's 
 lights, that a clerk who superintended the erection of the building by 
 which they were darkened, and who alone directed the workmen, might 
 be joined as a co-defendant with the original contractor, by whom he was 
 employed (^ ) 
 
 The liability of government and other public officers has been before 
 adverted to (Je). 
 
 2dly. With There are some torts which in legal consideration may be committed 
 reference by several, and for which a joint action may be supported against all the 
 *"*''* .parties. Thns a joint action may be brought against several for a mali- 
 thedefend- cious prosecution, or an assault and battery ; or for composing, *publish- 
 ants. ing or signing a libel (fc) (1) ; or for not setting out tithe (/) ; or for 
 [ *86 ] keeping a dog to kill game, not being qualified (m). But if in legal con- 
 sideration the act complained of could not have been committed by seve- 
 ral persons, and can only be considered the tort of the actual aggressor, 
 or the distinct tort of each, a separate action against the actual wrong- 
 doer only, or against each, must be brought. Therefore a joint action can- 
 not be supported against two for verbal slander (n) (2) ; nor will debt on 
 a penal statute lie against several for what in law is a separate offence in 
 each; as against two proctors for not obtaining and entering their 
 certificates (o) (3) ; or against several persons for bribery (/?). In an 
 action of debt to recover money lost at play, the defendant cannot plead 
 a non-joinder in abatement (g). And if a joint action of trespass be 
 brought against several persons, the plaintiff cannot declare for an as- 
 sault and battery by one, and for the taking away of goods by the others, 
 because these trespasses are of several natures (r). And *in trover 
 against sevwal defendants, all cannot be found guilty on the same count, 
 ■without proof of a joint conversion by all (5). These rules, however, do 
 
 (A) 1 E. & P. 404; 8 Camp. 403. Ab. 781 ; 2 Vin. Ab. 64, pi. 27. 
 
 (!) Per Lawrence, J. 6 T. R. 413. (o) 1 New Rep. 245; 3 East, 574. 
 
 (/) 6 Moore, 47; 2 D. & R. 33. \p) Griffiths «. Stratton and others, jadg- 
 
 (/c) Ante, 87, 42. ment in error in the Honse of Lords from 
 
 (&) 2 Saund. 117 a; Latch. 262; 2 Burr, the Exchequer in Ireland, 17th April, A. D. 
 
 985; Bac. Ab. Actions in General, C. 1806. 
 
 (,1) Garth. 861; 2 Vin. Ab. 70, pi. 21. (g) 28 MSS. Ashurst Paper Books, 283, 
 
 (ffi) 2 East, 578. Sed Vide 7 T. R. 257. 
 
 (n) Id. Ibid.; 2 Wils. 227; Dyer, 19 a; (r) 2 Sannd. 117 a, Sty. 153, 154; 3 Esp. 
 
 Pahu. 313; Cro. Jao. 647; 1 Bulst. 15; 1 Rol. Rep. 202, 204. 
 
 (1) Vide Thomas v. Rum.sey, 6 Johns. 26. An action for a libel will lie againft two or 
 more, if it be a joint act by all. Harris v. Huntington, 2 Tyler, 129. 
 
 Two towns may be sued jointly for damages sustained by the insufficiency of a bridge be- 
 tween them. Peokham v. Burlington, Brayt. 134. 
 
 (2) Vide Thomas v. Ramsey, 6 Johns. 32; 17 Mass. 186. 
 
 (3) If debt qui tarn be sued against several, demanding a joint forfeiture, on a plea of ml 
 debet, all the defendants ought to be found indebted, because the form of the action and plea is 
 on a joint contract, although the debt arises from a tort. BumJuun v. Webster, 6 Mass. 270. 
 See Hill v. Davis, 4 Mass. 137; Boutelle v. Nourse, 4 Mass. 481. 
 
IN FORM EX DELICTO — DEFENDANTS. • 86 
 
 not(*) prevail in criminal proceedings, so as necessarily to defeat an indict- n. 
 ment against several for distinct offences in separate counts, though the "7^^" 
 Court have a discretionary power to quash the indictment, where incon- who to bo 
 venience might arise from the joinder of many persons for different of- i°™^ or 
 fences (t). ''^^^^^ 
 
 If several persons be made defendants jointly, where the tort could not quences of 
 in point of law be joint, they may demur, and if a verdict be taken against misjoinder 
 all, the judgment may be arrested or reversed on a writ of error (m) (1) ; ?"! °?°" 
 but the objection may be aided by the plaintiff's taking a verdict against *'*"" *""' 
 only one (x) ; or if several damages be assessed against each, by enter- 
 ing a nolle prosequi as to one after the verdict and before judgment (jj'). 
 In other cases (2), where in point of fact and of law several persons 
 might have been jointly guilty of the same offence, the joinder of more 
 persons than were liable in a personal or mixed action in form ex delicto, 
 constitutes no objection to a partial recovery, and one of them may be ac- 
 quitted, and a verdict taken against the others {z) (3). On the other 
 hand, if several persons jointly commit a tort, the plaintiff in general has 
 his election to sue all or some of the *parties jointly, or one of them sep- [ *87 ] • 
 arately (4_), because a tort is in its nature a separate act of each individ- 
 ual (a) (6). Therefore in actions vaform ex delicto, as trespass, trover 
 or case for malfeasance, against one only for a tort committed by several, 
 he cannot plead the non-joinder of the others in abatement or in bar, or 
 give it in evidence under the general issue ; for a plea in abatement can 
 only be adopted in those cases where regularly all the parties must be 
 joined," and not where the plaintiff may join them all, or- not, at his elec- 
 tion (b). And even if it appear from the declaration or other pleadings 
 that the tort was jointly committed by the defendant and another person, 
 no objection can be taken (c) (6), This rule applies only in actions for 
 
 (») 1 M. & Sel. 588. after judgment, Tidd's Prac. 9th ed. 895; 2 
 
 (0 8 East, 46, 47; 1 Chitty on Crim. Law. East, 574; 1 M. & Sel. 588; Bao. Ab. Action 
 
 270. 271. Istedit. of Qui Tam., D.; 2 Rol. Ab. 707; Lane, 19, 
 
 (m) 1 New Rep. 245; 1 Saund. 117, b. a; 59; Cowp. 610. 
 Bao. Ab. Actions in General, C; 1 Rol. Ab. (a) 6 Taunt. 29, 35, 42. 
 
 781; Sty. 349. (6) Id. ibid.; 1 Saund. 291 d. e; 5T. R. 
 
 (x) Id. ibid. 649; 6 Taunt. 29, 35, 42. 
 
 (j) 1 Saund. 207 a. (c) 1 Saund. 291. 
 
 (2) 3 East, 62; 1 M. & Sel. 589. Cannot 
 
 (1) See Russell v. Tomlinson, 2 Conn. 206; Peters v. England. 1 M'Cord. 14; M'Keoron ».- 
 Johnson, 1 M'Cord, 578; Franklin Fire Ins. Co. v. Jenkins, 3 Wendell, 130; Orr v. Bank of 
 U. States, 1 Ham. 45. 
 
 (2) An action of ejectment was brought against five defendants, who entered into the consent 
 rule jointly, and pleaded jointly. They severally possessed the premises in separate parts; and 
 the jury having found each defendant separately guilty as to the part in his possession, and not 
 guilty as to the residue, judgment was rendered accordingly. Jackson v. Woods, 5 Johns. 278. 
 
 (3) Vide Lansing v. Montgomery, 2 Johns. 382; Cooper and another v. South and others, 
 4 Taunt. 802 ; Jackson i>. Woods, 5 Johns. 280, 281. Cunningham v. Dyer. 2 Monroe, 51 ; Wright 
 «. Cooper. 1 Tyler, 425; Chewet v. Parker, 1 Rep. Con. Ct. 333; Lookwpod v. Bull, 1 Cowen, 
 322; Pearson v. Stroman, 1 Nott and M'C. 354; Hayden v. Nott, 9 Conn. 367. 
 
 (4) Vide Thomas v. Rumsey', 6 Johns. 31; Bumhamu. Webster. 5 Mass. 269, 270; Johnson 
 V. Brown, 1 Wash. 187. 
 
 (5) A. joint action does not lie against separate owners of Dogs, by which dogs the sheep of 
 a third person have been worried and killed. Van Skenburgh ».- Tobias, 17 Weiid, 56^; Ru?. 
 selfv. Tomlinson, 2 Conn-. 206; Adams v. Hall, 2 Yenn. 9, 
 
 (6) Vide Rose v. Oliver. 2 Johns. 365, 
 
 YOL. I. 14 
 
87 OP THE PARTIES TO ACTIONS. 
 
 ' "• torts, Strictly unconnected with contract ; for where an action on the case 
 BEFBND- jg brought mei'ely for the non-feasance of a contract, and in order to sup- 
 ^^' port the action a contract must be proved, and is the basis of the suit, (as 
 to be***" -i^i °^^® ^°^ ^ breach of a warranty on a sale, &c.) the joinder of too 
 ed or mii- many defendants will be a ground of nonsuit ; and it should seem, that if 
 *•<•• a joint contractor be not included, the defendant may plead his non-joia- 
 
 der in abatement ; for it is nob competent to the plaintiff in such an in- 
 stance to alter or obviate the rules of law with regard to the parties to be 
 sued upon the contract, merely by varying the form of his action, where 
 in substance it is founded on the agreement (</) (1). But it must appear 
 from the declaration, that .the gist of the action is for a breach of contract 
 (e). And with regard to carriers and inn-keepers, as their liability ig 
 founded on the breach of an implied common-law dutp in respect of their 
 particular capacities, if they be sued in case for negligence, no valid ob- 
 jection can be made in respect to the non-joinder of .a party ; although 
 they may be sued in assumpsit, in which event the objection would be 
 tenable (/). There is a settled distinction in this respect between mere 
 personal actions of tort, and such as concern real property ; for if only 
 one tenant in common of realty be sued in trespass, trover, or case, for 
 any thing respecting the land held in common, as for not setting out tithe, 
 &c., he may plead the tenancy in common in abatement {g) (2). And in 
 an action of debt for money lost at play, the defendant may plead in abate- 
 ment, that the money was due. from others as well as from himself; such 
 action, though given by statute, being founded on contract (A) (3). _ ThesS 
 distinctions between the effect of too many or too few persons being made 
 r 'SS 1 defendants in actions in form ex contractu *and in those ex delicto, may 
 in some cases render it advisable to adopt, if practicable, the latter form 
 of action, when it is doubtful who should be made the defendants. 
 Costs now In an action on the case, and in trover or replevin, if one of the defend- 
 ^eral to ^^^^ ^^^ acquitted, he was not entitled to costs (i), but in trespass it was 
 an acquit- otherwise, unless the judge certified that there was reasonable cause for 
 
 ted defend- making the acquitted person a defendant (j) (4). And now, by 3 <fe 4 W. 
 ant unless, 
 
 jM. 
 
 (d) 12 East, 454; 2 New Rep. 454; 12 (g) 1 Saund. 291 e.; 5 T. E. 851; 7 T. R. 
 East, 89, S. C. and see 2 New Rep. 365; 1 267; Bac. Ab. Joint-tenants, K.; 2 East, 674, 
 Wils. 281; 6 Moore, 141; 8 B. & B. 54; 9 (A) 7 T. R. 257. Sed quart, see 28 Ash- 
 Price, 408, S. C. ; 1 Sannd. 891 e, and note (c) . hurst, J.'s MSS. Paper Books, 283. 
 
 (e) Id. ibid.; 2 New Rep. 369; 6 Moore, (i) 2 Stra. 1005; Tidd, 9tli ed. 986. 
 
 158. 0) 8 & 9 W. 3 0. 11 ; Tidd's Prao. 9th cffi. 
 
 (/) 8 East, 62; 2 Chit. R. 1; 3 B. & B. 986. If, however, all the defendants joined 
 
 64, 171; 6 Moore, 141, 154, 158; 9 Price, in pleading, the acquitted defendant was only 
 
 408, S.C. But the declaration must he framed entitled to forty shillings costs. Id. ibid; i 
 
 accordingly, 6 Moore, 164; 2 Chit. fRep. 1; 9 M. & Sel. 172; 4 B. & Aid. 48,700. 
 Price, 408, S. C. 
 
 (1) In an action of tort against two for misfeasance in the performance of a joint contract, 
 the plaintiff cannot recover against either defendant without proving a joint contract. Wright 
 V. Gear, 6 Vermont, 151. Where the duty is one imposed by law, and a contract is not neces- 
 sary to be stated, and the declaration is in tort, and the gravamen a misfeasance, it seems the 
 plaintiff may recover against one defendant without the otlier, ib, 
 
 (2) Per Curiam^ 4 Pick, 808. But in case against three for erecting a dam by means 
 whereof plaintiff's mills were obstructed, two of the defendants pleaded in abatement the death 
 of the third pending the suit; but upon demurrer the plea was held ill, for that it did not ap- 
 pear by the pleadings that the defendants were charged by reason of their holding real estate 
 as joint-tenants or tenants in common. Summer v. Tilcoton, 4 Pick. 308. 
 
 (8) Vide Hill v. Davis, 4 Mass. 187; Burnham «. Webster, 5 Mass. 270. 
 
 (4) A«as. Laws N. T, sess. 36. o. 96 s. 10; 1 R. L. 345; 2 Rev. Stat. 616 s. 19. 
 
m FOBM EX DELICTO. — DEFENDANTS. 
 
 4, c. 42, s. 32, one of several defendants acquitted in an action on the «• 
 case, or for a tort, may recover his costs (&) ; and this constitutes a very ""^JJ^* 
 important consideration in commencing an action ; and although it might „ ' 
 be desirable to include a party as a defendant in order to exclude his evi- be join«l " 
 deuce, yet unless it be certain that a verdict will be obtained against him, or omittecU 
 it will be imprudent to join him ; because, if acquitted, he would probably 
 recover his costs, and they may be set off cfc deducted from the damages 
 and costs recovered by the plaintiff- against another defendant or defend- 
 ants, and may be nearly equal to, if not exceed, the sum payable to the 
 plaintiff (Z). And it is now the course, in an action on the case or tro* 
 ver against several persons, at the close oi the plaintiff's case and evidence 
 if there be no proof against one of the defendants, immediately to acquit 
 him, so that he may thereupon instantly be enabled to give evidence for 
 the remaining defendants (?w). And as well before as since the 3 <fe 4 
 W. 4, c. 42, s. 32, it was and is considered improper to join all the par-' 
 ties present at the time of an irregular distress or other tort, with a view 
 merely to exclude evidence (n) ; and the fair way is to bring the action 
 against the landlord, or at most against the landlord and broker, and not 
 to include the appraisers or the man in possession (o) ; and where a 
 police-man joined as a defendant with others, obtained a verdict, it was 
 held that he was absolutely entitled to costs under 10 Geo. 4, c. 44, in- 
 dependently of the enactment in 3 & 4 W. 4, c. 42, s. 32 (j»). 
 
 "Where separate actions have been brought against several defendants 
 for the, same act of trespass committed by them concurrently, the *party £ 89* ] 
 against whom the last action was commenced may plead the pendency of 
 the first in abatement (9) (1). A recovery against one of several par- 
 ties who jointly committed a tort, precludes the plaintiff from proceeding 
 against any other party not included in such action (/•) (2)* Thus in au 
 action against one for a battery, or for taking away the plaintiff's postSj 
 or destroying grass in a field where several persons are concerned, the 
 
 ' (k) The 8 & 4 W. 4, c. 42, b. 32, enacts, regular distress) plaintiff recovered damages 
 
 that where several persons shall be made Ae- and costs £45 against one, but the other two 
 
 fendants in any personal action, and any one defendants Obtained verdicts, and their ccsts 
 
 or more of them shall have a nolle prosequi were £37, and were set off against the plain-> 
 
 entered as to him or them, or upon the trial of tiff's claim. 
 
 such action shall have a verdict pass for him (m) Child v. Chamberlain, 6 Car. & P. 
 
 or them, every such person shall have judg- 215; 1 Mood. & E. 318, S. C; 3 Chitty's 
 
 ment for and recover his reasonable costs, un- Gen. Prao. 902. 
 
 less in the case of a trial the judge before whom (n) Child v. Chamberlain, 6 Car. & P. 213; 
 
 such cause shall be tried shall certify upon the (o) Per Parke, J., Id. ibid, 
 
 record under his hand, that there was a rea- ' (p) Humphrey v. Wodehouse and others, 1 
 
 sonable cause for making such person, a defend- Bing. N. C. 506. 
 
 ant in such action. (q) 1 Campb. 60, 61. 
 
 (Z) George », Elston and others, 1 Bing. N. (r) Cro. Jac. 74; Com. Dig. Action, K. 4, 
 
 C. 513; 1 Hodges, 63; 3 Dowl. 419, S. C. L.; 2 B. & P. 70, 71; 1 Saund. 207 a; 4 
 
 Where in an action against three for an ir- Taunt. 88. 
 
 (1) Contra Livingston v. Bishop, 1 Johns. 290. 
 
 (2) Vide Warden v. Bailey, 4 Taunt. 87, 88, aoc. Where Laweenoe, J., says, that two sev- 
 eral actions could not be sustained against several for the same act of imprisonmenti And se« 
 Campbell v. Phelps, 1 Pick. 290. But in Livingston v. Bishop, 1 Johns. 290, it was held that 
 separate actions might be brought against several joint trespassers, in each of which the plain- 
 tiff might proceed to judgment, and then should elect de melioribus damnis.aM issue his exe- 
 cution against one of the defendants, which was a determination of his election, and precluded 
 him from proceeding against the others, except for the costs in their respeotive suite. It seemsi 
 if a plaintiff discharge the action against one tort feasor on receiving Satis&dtion, tiiat it is • 
 
89 OP THE PARTIES TO ACTIONS. 
 
 « 
 
 H- recovery against one will be a bar to an action against the others («) ; 
 DEPEND- g^jj^ -where the plaintiff had previously recovered in an action against his 
 '*^™* servant for quitting his service, it was decided that he'could not also sup- 
 b'ei^n^*" port an action against the person for seducing away such servant (t)- Iq 
 or omitted, these cases the Court will in general on a summary application stay the 
 proceedings in the second action, where it is manifest that the entire dam- 
 ages have been recovered in tbe first (m). But where the evidence and 
 the damages in the two actions might be different, as where two persons 
 on different occasions have published the same libel, separate actions may 
 be supported against each (a;) (1). So the recovery against one party 
 in an action for criminal conversation, is no bar to an action against 
 another party for a similar injury (y). 
 
 ; sdly. 3. As in the case of a breach of a covenant, so in that of torts, the 
 
 ; Where the assignee of the estate is not liable for an injury resulting from any 
 Sm been nuisance, or wrongful act, committed thereon before he came to the es- 
 assigned, tate ; but if he continue the nuisance he may be sued for such continuance 
 *«• (sr). In some cases it is necessary, and in all cases it is judicious, prior 
 
 to the commencement of the action, to require the defendant to abate the 
 nuisance (o). If a tenant for years erect a nuisance, and make an un- 
 der-lease to B., an action lies against either (6) ; and if A. takes the 
 ^ goods of C, and B. take them from A., C. may have his action against 
 
 A; or B. at his election Cc'). 
 
 '} 
 4thly. In 4. At common law upon the death of the wrong-doer, the remedy for 
 case of the torts unconnected with contract in general determines ; and -as the statute 
 wong-^*''*^ Edw. 3, c. T, (d) before referred to (e), does not give any remedy 
 doer, against personal representatives, we shall find that few actions in form ex 
 delicto, and in which the plea would be iiot guilty, could, Isefore the 3 & 
 4 W. 4, c. 42, s. 2, be supported against the executor or administrator of 
 J. ,_.q ^ the party who committed the injury (/) (2). Many *of the preceding ^ 
 L J observations on the rule actio personalis moritur cum persona in its re- 
 
 lation to the death of plaintiffs are equally applicable to the case of the 
 death of the wrongdoer (g-). 
 
 (s) Telv. 68', 2 B. & p. 71; Bui. N. P. (4) WiUes, 588; Cro. Jac. 555; 5 Co. 100, ■ 
 
 20. 101. 
 
 (t) 3 Burr. 1345; 1 Bla. Rep. 387, 873, S. C. (6) 2 Salt. 460 ; 1 B. & P. 409. 
 
 (i») 2 B. & P. 71. (c) Bac. Ab. Actions, B. 
 
 {x) 2 B. & P. 69. (d) 4 Edw. 8, c. 7. 
 
 (y) 1 Campb. 415. (c) jlnU, 68. 
 
 Iz) Com, Dig. Action on the case. Nuisance, (/) Cowp. 374, 377; 1 Saund. 216, notel. 
 
 B.; Dyer, 320; 2 Salt. 460; 1 B. & P. 409; (g) See ante, 68, 69. 
 ante, 47, 48. 
 
 discharge of the others. Dufresne v. Hutchinson, 3 Taunt. 117. See Knox v. Work, 1 P. A. 
 Browne, 101. 
 
 (1) Where B. & C, printers in partnership, publish jointly a libel, and separate suits are 
 brought against each, and a judgment is first obtained in the suit against C. which is satisfied, 
 that judgment and satisfaction may be pleaded in bar of the suit against B. Thomas v. Eum- 
 sey, 6 Johns. 26. In this case the doctrine in Livingston v. Bishop, 1 Johns. 290, was con- 
 firmed, and applied to actions for libels. ' 
 
 (2) Vide Franklin v. Low, 1 Johns. 896. In Vir^nia, trespass for the mesne profits of land 
 recovered in ejectment against A. lies against his executor. The 64 sec. ch. 104, Rev. Code, is 
 an exteniion of the 4th Edw. III. ch. 7, de bonis asportatis. Lee ». Cooke, Gilm. 831. 
 
IN FOEM EX DELICTO.— DBFBNDAtJTS. 90 
 
 For injuries to the person, if the wrong-doer die before judgment, the "• 
 remedy determines, and there is no instance of an action having been sup- "™g_°' 
 ported for such injuries against his personal representatives (A) ; and cer- 
 tainly neither of the statutes afford any remedy. ^"Si. of 
 
 In general also no action in form ex delicto, as trover, (1), case (2) or wrong do- 
 trespass (3), could, before the 3 & 4 W. 4, c .42, s. 2, be supported against er. 
 an executor for an injury to personal property, committed by his testator 
 (Jc) (4). If, however, the testator converted the property into money, 
 assumpsit was sustainable against his executor (5), or if the property came 
 in specie to the possession of the latter, trover would be sustainable against 
 him (6) ; but then he was not to be sued in the character of executor, but as 
 for his own tortious conversion (V). ' It is said that an action is sustainable 
 against the executor of a carrier for the loss of goods, but then the action 
 should \iQ framed in assumpsit (m). And an action of assumpsit might at 
 common law be maintained against the executor of an attorney for unskiU 
 fulness or carelessness in the conduct of a cause, or other professional busi- 
 ness in which the testator was employed, being the breach of an express 
 or implied contract (n). We have seen that debt may be supported by 
 an executor for an escape on final process, but it could not be maintained 
 against the executor of a sheriff or gaoler ; for though the action is not 
 in form ex delicto, it was considered founded on a tort, namely, the negli^ 
 gence and breach of duty of the deceased sheriff or gaoler (o) (7), but where 
 a sheriff had levied money under an execution, and died before he had paid 
 
 (A) Cowp. 375; 1 Saund. 216 n; Com. Dig. (m) 2 New Rep. 370. 
 
 Administration, B. 15; 2 M. & S. 408. («) 3 Stark. K. 154. 
 
 (fc) Cowp. 371 ; 1 Saund. 216 a; Com. Dig. (o) Ante, 68, 9; Dyer, 822 a; Lord Eaym. 
 
 Administration, B. 15. 978; Com. Dig, Administration, B. 15; Vim 
 
 (l) Cowp. 371, 374; 1 Saund. 216 a. Ab. Executor, H. a. pi. 1, 7, 20. 
 
 ' — *" 
 
 (1) Hench v. Metzer, 6Serg. & Rawle, 272; 15 Mass. 398; Barnard v. Harrington, 3 Mass. 
 f, 288. The statute of Alabama, whioli declares that the action of trover shall survive for and 
 
 against an executor or administrator, was intended to subject them to that form of action in 
 their representative capacity, where a conversion had taken place in the life-time of the testator 
 or intestate. Nations v. Hawkins, 11 Alabama, 859. 
 
 (2) An action for breach of promise of marriage is within the rule. Lattimore v. Simmons, 
 ISSerg. and Rawle, 183; Stebbins v. Palmer, IFick. 71. So an action of slander, Long v. 
 Hitchcock, 3 Haw. 274. 
 
 (3) Nicholson D. Elton, 13 Serg. & Rawle, 415; Harris v. Creashaw, 3 Rand. 14; Perry v. 
 Wilson, 7 Mass. 395. 
 
 (4) Sed vide Powell v. Layton, 2 New, 370, where Mansfield, C. J., seems to be of the opin- 
 ion that case would lie against the executor of a carrier, the foundation of the action being 
 essentially contract. Death of defendant abates an action of Replevin. Mellen v. Baldwin, 
 4 Mass. 480; Merritt v. Lambert, 8 Greenl. 128. So an action of debt, whether qui tarn or 
 otherwise. Benson v. Egerton, Brayt. 21 ; Smith v. Walker, 2 Car. Law Kepos. 245. See also 
 Tompkins v. Walters, 6 Coll. 44; Turner v. Booker, 2 Dana, 335; M'Allister v. Spiller, Cam. & 
 Nor. 95. Many actions, or causes of action, are now made to survive, by statutes in some of the 
 states, which did not survive at common law. To these statutes the reader is referred. 
 
 (5) See ante, 67, note (3). U. States »i Daniel, 6 Howard, (U. S.) 11. 
 
 (6) SeeAllepi). Harlan, 6 Leigh, 42? Catlett c. Russell, ib. 344. 
 
 (7) Vide Martin «. Bradley, 1 Caines, 124; Logan «. Barclay, 8 Alabama, 361; Cunningham 
 V. Jaques, 4 Harr. 42. So an action will not lie against the executors of a sheriff for the de- 
 fault of his deputy in returning process, for the omission to return which an action is given by 
 statute* The People v. Gibbs, 9 Wend. 29; Cravath v. Plympton, 18 Mass. 454. 
 
92 or THE PARTIES TO ACTIONS. 
 
 11. the plaintiff therein, where it shall appear to the satisfaction of the said 
 DEFEND- Qq^^j.^ that the injury complained of was malicious" (q). 
 
 ethjy. In- Action for torts committed by a woman before her marriage, must be 
 brought against the husband and wife jointly (r) (1). For torts committed 
 the case "of ^J the wife during coverture, as for slander, assault, &c., or for any for- 
 Marriage. feiture under a penal statute, they must also be jointly sued (s) (2) ; and 
 the plaintiff cannot in the same action proceed also for slander, assault, 
 or other tort committed by the husband alone (<) ; nor can the husband 
 [ *93 1 and wife be sued jointly for slander by both (m). *For assaults or tres- 
 passes, which may in legal contemplation be committed by two persons 
 conjointly, and for which several persons may be jointly sued (x), the hus- 
 band and wife may be sued jointly for the joint act of both Qy}. Detinue, 
 it seems, can only be supported against the husband, if the detention be 
 of goods delivered to the husband and wife during the coverture (z). If 
 a woman convert goods before her marriage, or during it, without her hus- 
 band, trover may be supported against her and her husband (a). For a 
 conversion by husband and wife jointly, during coverture, the action of 
 trover should perhaps in strictness be against him alone ; but a declaration 
 in trover against husband and wife, charging that " they converted the 
 property to their own use " is at all events good after verdict (6). A feme 
 covert can only be sued for her own actual wrong or trespass, and cannot 
 become a trespasser merely by her previous or subsequent assent during 
 coverture (c) ; but she may be jointly sued with her husband for her 
 enticing away or harboring the servant of another {d). A person may 
 sue husband and wife jointly for her libel or slander, though she have 
 committed adultery, and they live separate, but have not been divorced a 
 vinculo matrimonii (^e). In an action of trespass against husband and 
 wife for her tort before coverture, or a wrong committed by her alone ,dur- 
 ing the coverture, if she die before judgment, the suit will abate ; but if 
 the husband die or become bankrupt, her liability will continue (/). 
 Conse- If the wife be sued alone for her tort before or after marriage, she must 
 
 quence of plead her coverture in abatement, and cannot otherwise take advantage 
 mistake. ^^ jj. ^^.^ . jj^j. jf ^^le husband and wife be sued jointly for torts of which 
 they could not in law be jointly guilty, as for slander by both, if the objec-. 
 tion appear on the face of the declaration, the defendant may demur, 
 move in arrest of judgment, or support a writ of error (A). 
 
 (5) 7 Geo. 4, o. 57, a. 49. & Feme, Y. 
 
 (r) Bae. Ab. Bar. & Feme, L.; Co. Lit. («) 1 Leon. 312; Yelv. 165; Selw. N. P. 
 
 361 b. ; Com. Dig. Bar. & Feme, Y. Bar. & Feme. 
 
 (s) Id. iftici. ; 1 Hawk. P. C. 3, 4; Bac. Ab. (6) 3 B. A Aid. 685; see Com. Dig. Bar. 
 
 Bar. & Feme, L. . ■ & Feme, Y.; and Pleader, 2 A. 2. 
 
 (0 2 Wils. 227; Dyer, 19 a. pi. 112; Com. (c) 2 ■Wils.227; Co. Lit.lSOb. n. 4; 357 b. 
 
 Dig. Bar. & Feme, Y. (d) 2 Lev. 63. 
 
 (m) Id. ibid.; Bao. Ab. Bar. & Feme. L. (c) Head d. Briscoe and -wife, C.P.Monday, 
 
 {x) See ante, 85. 11th February, 1833, before Tindal,.C. J. and 
 
 (a) 1 Vent. 93; 3 B. & Aid. 685, 687; special jury. 
 
 Com. Dig. Pleader, 2 A. 2. (/) Rep. temp. Hard. 399; Cullen, 392. 
 
 (2) 4 Leon. 312; Bao. Ab. Detinue; 2 (g) Jlnte,59. 
 
 Bulst. 308; 3 E. & Aid. 689; Com. Dig. Bar. (A) 2 Wils. 227; Dyer, 19 a. 
 
 (1) So an action for slander by the wife dum sola will lie'against husband and wife. Hank v. 
 Harman, 5 Binn. 43. 
 
 (2) The husband was sued alone in Hasbrouck v. Weaver, 10 Johns. 247, and the judgment 
 was affirmed by the Supreme Co>;rt. - o , 
 
[ *94 ] 
 
 ♦CHAPTER II. 
 
 Of the Forms of Actions. 
 
 It was a general rule or maxim of law, that the sanction of the king's ™ 
 original writ issued out of Chancery, was an essential preliminary form to ""'""*''• 
 the institution of a suit in the Common Law Courts. Non potest quis sine 
 brevi ag-ere {a) ; this was the prevailing doctrine. The practice of 
 proceeding by bill without the original writ from Chancery, in personal ac- 
 tions and in ejectment, formed an exception to the rule. The practice of 
 commencing an action by bill only obtained in each of the superior Courts 
 in the case of certain persons, privileged in regard to their official charac-r 
 ters, or as officers of the Courts, to be sued as being already present in 
 Court. And in the King's Bench and Exchequer the proceedings by bill 
 in other cases was introduced by fictions, and afterwards sanctioned and 
 legalized by usage. But the great variety of writs and bills led to so much 
 intricacy and confusion, that, as regards personal actions, the former writs, 
 bills, and proceedings were abolishedj and the present writs of summons, 
 capias, and detainer were introduced by 2 W. 4, c. 39, and which writs 
 now do not, as formerly, set out the whole form and cause of action, but 
 are only adopted as viodes of bringing the defendant into Court, and then 
 and not before, the declaration, stating the full form and cause of action, 
 is delivered. 
 
 But although it is no longer necessary, as formerly, to state the whole 
 cause of action and form of complaint in the writ, yet it is still necessary 
 for the practitioner, before he issues any process under the Uniformity of 
 Process Act, 2 W. 4, o. 39, to decide on the proper farm of action to 
 be adopted, and to state it, though very concisely, in the writ, as by re- 
 quiring the defendant to answer, " in an action upon promises," or " in 
 an action of debt," or "m an action of covenant," or "in an action of 
 trespass on the case," &c., and which form of action must afterwards be 
 adhered to in the declaration, or the latter may be set aside for irregulari- 
 ty. Hence it is necessary for every practitioner to have a competent 
 knowledge of every form of action, a,nd its application, before he even 
 commences the action. In this chapter we will give the forms of action 
 full consideration. 
 
 In considering the forms of action, it was always important to advert to °"8in of 
 the general principle that the original writ, issued from the Chancery, was ent/oml 
 the foundation of the suit, and essential to give *the Court of Common Law of action, 
 authority to entertain it. The writ, whether actually or presumptively is- [ »95 j 
 sued, had a double purpose and object. It gave the Court in which _ the 
 defendant was directed to appear cognizance of the suit, and it enjoined 
 or enforced his appearance. With these -views, the form and nature of 
 the intended suit, and the ground of complaint, were formerly /m% or 
 
 (a) Bract. 413 b; 3 Bla. Com. 273; Gilb. foundation of a suit, see Stephen, 2d ed. Ap- 
 Hist. C. P. 2; Steph. on PI. 2d ed. 5, 6. As pendix, ii, n. (2). 
 to the origin of the issuing of writs as the 
 
 YoL. I. X5 
 
95 
 
 OP THE FQBM3 OF ACTIONS. 
 
 QEMSBAIi, 
 
 Ei»et- 
 ments of 
 Stat. West. 
 2, that as 
 new inju- 
 ries arise, 
 new writs 
 to be 
 framed. 
 
 [ -ge] 
 
 The cir- 
 cumstance 
 of a reme- 
 dy being 
 new 
 inform 
 not conclu- 
 sive as to 
 itsinad- 
 missi- 
 biUty, 
 
 specifically shown in the writ. The original writ, from the most ancient 
 times, defined and determined concisely the form of the action (6). At a 
 very early period, specific forms of actions were provided for such injuries 
 as had then most usually occurred ; and Bracton, observing on the origi- 
 nal writs on which our actions were founded, declared them to be fixed 
 and immutable, unless by authority of parliament (c) . These ancient forms, 
 which had from time to time been collected and preserved in Chancery, 
 in a book called The Register of Writs, were, in the reign of Henry the 
 eighth, first printed and published in the book termed Registrum Brevi- 
 
 At conunon law also, though no form could be found in the Register, 
 adapted to the nature of the plaintiff 's case, yet he was at liberty to bring 
 a special action, on his own case, and writs were framed accordingly, which 
 were termed magistralia (e) ; but as the officers of the Court of Chancery, 
 whose duty it was to frame the writs for the solicitor, were found reluctant 
 in new cases to frame the proper remedy, or doubted their authority to do 
 so(/), the legislature thought fit to enforce the duty to issue a proper writ ; 
 and it was enacted by Statute Westminster 2d {g), " that if it shall fortune 
 in Chancery, that in one case a writ is found, and in like case Qconsimili 
 casu) Mling under like law, (t. e. principal) and requiring like remedy, is 
 found none, the clerks of the Chancery sAaU agree in making the writ, or 
 adjourn the plaintiffs until the next Parliament, and that the cases be writ- 
 ten in which they cannot agree, and that they shall refer such cases (A), 
 (or complaint) until the next Parliament ; and by consent of men learned 
 in the law, a writ shall be made, lest it might happen after that the Court 
 should long time fail to minister justice unto complainants" (!)• To this 
 statute the copious production of new forms of writs, and the *great en- 
 couragment and frequency of actions on the case so infinitely various is to 
 be atttibuted(r). 
 
 ■Notwithstanding these provisions, it was once thought that the cir- 
 cnmstanee of an action being of the first impression, and unprecedented, 
 constituted a conclusive objection against it ; and it is observable, that 
 the Statute Westminster 2d, doeg not recognize or confer any right to 
 frame writs in cases entirely new (A;) ; it merely gives or enforces the 
 power to frame new writs by analogy to and upon the principle of such as 
 
 {b) It may also be observed of the bill ac- 
 tually filed Of; e:^hibited, or presumed to be 
 So, instead of the proceeding by original, that 
 it always disclosed and gave fully the form and 
 mXwe of the action, and in that respect 
 was parallel with the declaration upon the 
 original writ, and which declaration was con- 
 fined to the form of aotipn prescribed by the 
 writ. 
 
 (c) 3 Bla, Com. 117, 
 
 (d) 4 Beeves, 426. 432; 3 Bla. Com. 183; 
 Gilb. C. P. 4 ; Pitzherbert's Natura Brevium 
 is a comment upon these aneiept forms, which 
 were called breviaformata. 
 
 (e) 8 Co. 47 b, 48 a; 2 Bla. Bep. 1118; 8 
 IVoodd. 168. It has been observed, that there 
 
 are many writs in the Register not accordant 
 tolaw, R. 193, as trespass per baron and feme, 
 for assaulting the wife, and taking the goods 
 of the husband, 2 Salk. 637. 
 
 (/) 2 Reeves, 203; 2 Bla. Com. 50. 
 
 (g) 13 Edw. 1. Stat. l,c. 24, See observa- 
 tions on this statute, 3 Bla. Com. 123, 188, 
 184; 8 Woodd. 168; and Webb's case, 8 Co. 
 45 b to 49 b; 4 Beeves, 430. 
 
 (ft) There appears a mistake in the Statute 
 Book in the translation, which is here cor- 
 rected, 
 
 (i) 4 Reeves, 430; 8 Bla. Cow, 61; S, 
 Woodd. .168. 
 
 (fc) Stephen on Plead. 2d edit. 7, 8. 
 
 (1) As to the origin and history of the action on the case, see further, 8 Reeves's Hist. E. L, 
 89,93,243,244,391,897. ' 
 
had previously existed, (i, e. in consimili cam,') It has ho-wever, been » 
 observed, that it by no means follows, that because in cases unprovided «»»«*» 
 for by the Register, the statute directs an action upon the ease to be framed, 
 that the action upon the case or a remedy for every new injury in general 
 did not subsist at common law (J). There is also the authority of Lord 
 Kenyon for the doctrine, that whenever the comm&n law recognizes or 
 creates a legal right, it will also confer a remedy by action (m) (1) ; amd 
 Lord_ Chief Justice Pratt, in answer to the- objection of novelty,' said, that 
 he wished never to hear it urged again, for torts are infinitely various, not; 
 limited or confined, and there is nothing in nature that may not be an instru- 
 ment of mischief, and the special action on the case was iatrodmced, bexiaus© 
 the law will not suffer an injury without affording a remedy, and there muist, 
 be new facts in every special action ©n the pase iny. In the ease of Pa*" 
 ley u. Freeman (o), Mr. J. Ashurst observed, that where cases are new 
 in their principle, it is necessary to have recourse to legislative ioterpo' 
 sition in order to remedy the grievance ; but where the case is only new m. 
 the instance, and the only question is upon the application of a priiiciipile 
 recognized by law to such new cases, it wiU be just as competent to Cojirts 
 of justice to apply the acknowledged principle to any case which may 
 arise two centuries hence as it was two centuries' ago. However, the 
 novelty of an action may frequentiy be fairly urged as a strong presump- 
 tive arguraent against it (p) (2). 
 
 When the prescribed form of action is to he found in the Register, the Anient 
 proceeding should not materially vary from it (9), umless; in. those casea presisribed 
 where another form of action has long been sanctioned bjr usage' (r)j and the* ^^j^j"** 
 Courts will mot permit parties, even by agi-eement, to deipart from the appro- parte*'" 
 priate remedy (s)j for [it has been considered to be the greatest impor- from, 
 tance to observe the boundaries of *the different actions: (3),. not only in r ^mt -i 
 respect of their being most logieally fifamed,, and. best adapted to the na.- ^ ^ 
 
 ture of each particular case^ but alsa in order that causes nsnaiy not be 
 brought into Court confusedly, and immethodically, and that the record may 
 at once clearly ascertain the matter in dSspnte ; a regulation which, since 
 the different le^slative provisions respecting! cdsts, (the right to whichj 
 varies, in different forms of action), has become' of still greater impo^^ 
 tance (f). Hence we find that even the slightest' alterationisiim the form «^ 
 
 {I) Per Blackstone, J., 2 Bla. Rep. 1113; (r) /rf., ft iff. ;. 4 Co. 94 b;a Woodd; 169?, 
 
 and per- Dallas, G. J. , 3 B. & B. 62„ 6S>. 4 Bfievtes. 432. 
 
 (m) lEaat, 226. <s) 9 East, 381; 15East»3Q9;,lLd. Baym. 
 
 (n) WiUes, 581;Biil. II.P. 79. 188. Peake, 128. 
 
 (o) 3 T. K. 63. (0 1 Ld. Baym. 188. Thus,, in. 6 Tl E« 
 
 (p) Co. Lit. 81 h; 2 T. E. 673; 1 T. E. 129, 130, Lord Kemyon, C. J.,. said» "It is 
 
 617; Dougl. 602; Cro. Eliz. 770; 1 Bingu843; of importanoei <Aa4 iftc botindaries, between, 
 
 8 Taunt. 620,, 621 ; 3 Bing. 256. the different actions should- be preserved^ and 
 
 (g) Bac. Ab. Abatement, H., and this be- particularly in cases of thia kind;, for if inv^ 
 
 cause nihil sinail inveatum est et perfectum, an action of trespass the plaintiff recover 
 
 and the long adoption and use of a fiarm. is less than 40t., he is entitled ta no morer 
 
 a strong argument in its &XQr. costs! than dteagesj, whereas a verdict' intli 
 
 (1) Vide Tates v. Jbioe, II Johns. 140. 
 
 (2) Farwell v. Boston & Wor. Bail K. Co.. 4' Metoaf, 55; Williains v. CfeUBtyfcrfMiddltesexl 
 4 Metcalf, 78? Hayden ■»; Cabot, 17 Mas*. 169, 172. 
 
 (3) Vide Vail. v. Lewis, 4 Johns. 457, 458. 
 
 If a party has a remtedy at common law, and a remedy iS' giTen int the affirmative' B* • 
 statute, without a negsliTe' express- or implied of the action, at common' law, he' ms^' avaw 
 himself of either. Almy v. Harris^ 8- Johns. 175; Fannerff'' Tumpibe COi v. Cweatiy^ 
 
9T 
 
 OP THE POEMS OP ACTIONS. 
 
 Actions 
 are real. 
 
 w action or of plea are usually introduced by express enactment and not by 
 omzsusf jjjgj.Q j.„ig Qf Court, as in 3 & 4 W. 4, c. 42, s. 14, which declares, that 
 an action of debt on simple contract shall be maintainable in any Court of 
 Common Law against an executor or administrator. 
 
 Actions are, from their subject-matter distinguished into real, personal, 
 and mixed. Real actions are for the specific recovery of real property 
 ^T mixed, only, and in which the plaintiff, then called the demandant, claims title 
 to lands, tenements, or hereditaments, in fee-simple, fee-tale or term for 
 life, such as writs of right, formedon, dower, &c. Personal actions are 
 for the recovery of a debt or damages for the breach of a contract or a 
 specific personal chattel, or a satisfaction in damages for some injury to 
 the person, personal, or real property. In Mixed actions, which partake 
 of the nature of the other two, the plaintiff proceeds for the specific re- 
 covery of some real property, and also for damages for an injury thereto, 
 as in the instance of an action of ejectment or of waste or quare imps- 
 dit{u). We will confine our observations to such personal and mixed 
 actions as most frequently occur in practice. 
 Actions Personal actions are in form ex contractu or ez delicto, or, in other 
 
 are inform ^ords, are for breach of contract, or for wrongs unconnected with con- 
 '« ore/ "tract. .*Those upon cow^rac^s are principally assumpsit, debt, covenant, 
 delicto. and detinue {x) ; and those for wrongs are case, trover, replevin, and tres- 
 [ *98 ] pass vi et armis. We will take a concise view of the nature and partic- 
 ular applicability of each of these respective remedies, and of the action 
 of ejectment, and that of trespass for mesne profit ; in effect a branch 
 of trespass quare clausum fregit. 
 Sugges- III arranging the law upon the forms of action, and their applicability, 
 tions on care must be observed only to notice such decisions as elucidate the rules 
 the mode qj, grgate exceptions or distinctions upon this particular subject^ and to 
 ering and avoid crowding the context with an accumulation of instances. Thus, 
 arranging after stating that assumpsit is the proper form of action on all simple con- 
 the sub- 
 
 Deane v. Clayton, 1 J. B. Moore, Bep^ 228. 
 
 (u) Bract 101 b; 3 Bla. Com. 117; Ste- 
 phen on PI. 2d ed. 3. As to the various real 
 actions, see Co. Lit, 289, n. l;lfila. Com. 
 ch. I'O; Eae. Ab. Actions in General, A. 
 Now in general abolished by 3 & 4 W. 4, c. 
 27, s. 36. Mr. Serjeant Stephen considers 
 that ejectment should be ranked as a personal 
 rather than a mixed action, Stephen, 2d edit. 
 23, Appendix, -viii. 56, n. (y). But the stat- 
 utes relative to 'writs of error, and the Uni- 
 formity of Process Act, 2 W. 4, c. 39, seem to 
 import that ejectment is not a personal but a 
 mixed action. 
 
 _ {x) Detinue may in some respects be con- 
 sidered an action ex delicto. As, however, it 
 may be joined with debt, I have classed it 
 vfith actions ex contractu ; see poet. The ac- 
 tions of account and annuity, though some- 
 times adopted, do not often occur in practice, 
 and therefore I have not observed upon them. 
 
 ject. 
 
 nominal damages only, in an action on the 
 case, carries full costs." And in 1 Hen. 
 Bla. 243, Mr. J. Wilson said, " It is highly 
 necessary that the forms of actions should be 
 kept distinct." And in 1 B. & B. 476, Eyre, 
 C. J., observed, that "undoubtedly we ought 
 to endeavor to preserve the distinction of ac- 
 tions; and if it appear upon the pleadings that 
 actions of a different nature have been mixed, 
 that is a sufficient ground for arresting the 
 judgment." And in 1 Stra. 635, the Chief 
 Justice observed, " We must keep Up the 
 boundaries of actions, otherwise we shall in- 
 troduce the utmost confusion." So in 5 B. 
 & A. 654; 1 D. & R. 286, S. C. Abbott, C. 
 J., observes, "The law has provided certain 
 specific forms of action for particular cases, 
 and it is of importance that they should be pre- 
 served." See also 11 Mod. 180; 2 Burr. 
 1114; 2 Saund. 47 b; 2 Inst. 434; Fitzg. 
 85; and see the observations of Park, J., in 
 
 10 Johns. 890; Coxei;. Bobbins, 4 Halst. 384; Golden v. Eldred, 16 Johns. 220; Bearoamp 
 S.",' V°- r'J^°°'^™'^°« 2 Greenl. 404; Fryeburg Canal v. Frye, 5 Greenl. 338; Edwards ». 
 Nichols, 3 Day, 16; Booker ». M'Robert, 1 Call. 248; Mayor, &o. of Baltimore j,. Howard, 
 6 Har. & Johns. 383; Miles v. O'Hara, 1 Serg. & R. 82; Boaz v. Heister, 6 Serg. & R. 20. But 
 where the remedy in the case is given by statute, and does not exist at common law, the dec- 
 laration must be special in the statute. Smith v. Woodman, 8 Foster, N. H. 520. " 
 
1. ASSUMPSIT. . 98 
 
 tfacts, alid consequently on a bill of exchange or promissory note, it i" 
 would be improper to introduce numerous decisions on the requisites of *"^'"^^'" 
 bills of exchange or promissory notes, -which would throw no light on the 
 application of the form of action, but extend the inquiry to the whole 
 law respecting bills of exchange. So after stating that covenant is the 
 proper remedy on a lease, cases respecting the construction of particular 
 covenants ought not to be introduced. It will be found, that notwith- 
 standing the very extensive alterations of late introduced respecting vfrits 
 or process to bring a defendant into Court, in personal actions, by the 
 Uniformity of Process Act, 2 W. 4, c. 39, and generally throughout 
 the practical mode of conducting an action by numerous modern rules, 
 and in the pleadings in an action by Reg. Gen. Hilary Term, 4 W. 4, 
 yet there have been very few alterations respecting the forms of actions^ 
 and which will principally be found in 3 & 4 W. 4, c. 42, such as the 
 enactments authorizing actions of debt on simple contract against exec- 
 utors or administrators, and allowing actions for torts to personal or real 
 property to be sustained by and against executors. 
 
 I. ASSUMPSIT. 
 
 This action is so called from the word Assumpsit, which when the i. 
 pleadings were in Latin, was always inserted in the deiclaration, as de^ assdmpbi*. 
 scriptive of the defendant's undertaking Q/'). It may be defined to be an 
 action for the recovery of damages for the non-performance of a parol or 
 simple contract, or, in other words, a contract not under seal *a.Qx of re- [ * 99 j 
 cord (z), circumstances which distinguish this remedy from others ; for 
 the action of debt is, in legal. consideration, for the recovery of a debt eo 
 nomine, and in numero, and is most frequently brought upon a deed (a) ; 
 and the action of covenant, although in form for the recovery of damo' 
 ges, can only be supported upon a contract under seal. Assumpsit, how- 
 ever, is not sustainable, unless there have been an express contract, or 
 unless the law will imply a contract (1). Though founded upon contract^ 
 this action, as distinguishable from the brevia formula, and falling within 
 the provision of the Statute ,of Westminster, may be termed an actiori 
 on the case (6). 
 
 (y) The word "undertook," was always (2) Contracts are, 1. of Record; 2 by 
 
 considered proper to be inserted in the deola- Specialty; or 3 by Parol. The term Parol, 
 
 ration, though the promise be founded on a Or simple contract, signifies every contract not 
 
 legal liability, and though in evidence it would under seal or of record, whether verbal or 
 
 be implied, Bac. Ab. Assumpsit, F. But it is written. 7 T. R. 351. 
 
 sufacient to aver that the defendant promised. (a) 1 Hen. Bla. 551, 554, 555; Bui. N. P. 
 
 And the forms of declaration prescribed by 167. 
 
 Reg. Gen. Trin. Term, 1 W. 4, adopt only the (J) Bac. Ab. Assumpsit; Gilb. C. P. 6; 2 
 
 word "promise," and are in other -respectB Bla. Kep. 850. 
 more concise than heretofore. 
 
 (1) To maintain assumpsit there must be a privity between the parties, but it may be a privj 
 ity in fact or in law. Between each party to a bill or negotiable note, and every other party, 
 there is a sufficient privity in law to sustain thd action'. Frazer v. Carpenter, 2 McLean, 237: 
 
} OP THE POBMS op ACTIONSi 
 
 i- It is now, however, called an action of assumpsit, and when the terni 
 iBCMPsrr. u g^jg " ig adopted in the statute, or otherwise, an action for a tort and 
 * in form ex delicto, is usually intended, and not an action in form ex con' 
 tractu{c'). 
 
 A minute inquiry into the history of this action would at this time be 
 matter of curiosity rather than of practical utility. The origin and pro* 
 gress of it may be collected from the reports and works referred to in the 
 note {d) ; and from which it appears, that till Slade's case (e), a notion pre- 
 vailed, that on a simple contract for a sum certain, or for any money de- 
 mand, the action must be in debt ; but it was holden in that case, that the 
 plaintiff had his election either to bring assumpsit or debt. From the pen-' 
 ningof the statute 3 Jas. 1 (/) it is probable the action of assumpsit was 
 not then much in use ; but afterwards it became very general (g-), and it is 
 now more frequently adopted for the recovery of money due on a simple con- 
 tract, than the action of debt. From these cases it also appears (A), that 
 though before Slade's case an action on the case might be supported, as well 
 for the non-feasance of a contract, as for misfeasance or malfeasance in the 
 performance of it, yet from the form of the writ in Fitzherbert (i), it may 
 be collected that the remedy was not similar to our present action of as- 
 sumpsit, but rather resembled the present form of a declaration in case 
 for a tort (Jc). 
 
 The breach of all parol or simple contracts, whether verbal or written, 
 or express or implied (J), or for the payment of money, or for the per- 
 *100 ] formance or omission of any other act, is remediable by action of as- 
 sumpsit (1). Thus it lies to recover money lent by the plaintiff to the *de-' 
 fendant, or paid by the plaintiff on the account of the defendant at his 
 request, or had and received by the defendant to the use of the plaintiff. 
 In some cases, though money may have been received by the defendant 
 tortiously, or by duress of the person or goods, it may be recovered in 
 this form of action (2), the law implying a contract in favor of the party 
 
 (c) 7 T. Ei 36. The declaration in as- (/) 3 James 1, o. 8. 
 snmpsit describes the plea to be " trespass on (g) Per Buller, J., Dougl. 6. 
 
 the case upon promises." (A) Bro. Ab. Actions sur le Case, pi. 7, 69, 
 
 (d) Rudder v. Price, 1 Hen. Bla. 550 to 72; Fiti. N. B. 94. A. 145, G.; B«c. Ab. Aa- 
 655; Doug. 6, 7; Slade's case, 4 Co. 91 to sumpsit, C. 
 
 95; 3 Woodd. 168. 169, n (c); Beeves, vols. (i) S. B. 94, A.; 3 Woodd. 165; 2 Bl»; 
 
 iii. and iv.; 1 Vin. Ab. 276; Bro. Ab. Action Rep. 850. 
 sur le case, pi. 7, 69, 72; Fitz. N. B. 94, A* (fc) 1 Hen. Bla. 550, 551. 
 
 n. (a), 145, G.; 1 New B«p. 295; 2 Bla. Sep. (I) 4 M. & Sel. 275} 3 M. & SeL 191: 1 
 
 850. Taunt. 112. 
 (c) 4 Co. 91 to 95, 44 Eli2. 
 
 (1) The action of assumpsit is founded on a promise express pr implied. Metcalf o Bobin- 
 son, 2 McLean, 364. 
 
 (2) So, an action for money had and received lies against a collector, for money unlawfully 
 demanded, and paid by the plaintiff to obtain a clearance for his vessel, which was refused un- 
 til the money was paid. Ripley i>. Gelston, 9 Johns. 201. So, it lies against a clerk of the Dis- 
 trict Court to recover money exacted colore officii from the plaintiff, as a condition of the re- 
 delivery of property whic'h had been liberated from seizure. Clintoe v. Strong, 9 Johns. 370. 
 So, it has been held to lie against a deputy postmaster, to recover the excess of postage on a 
 letter, beyond what was allowed by law. Williams v. Dodd, Superior Court of Connecticut, 
 cited 2 Day's Eap. 154, n. 1. Against a magistrate to recover fees illegally taken. Prior «. 
 Craig, 5 Serg. & Rawle, 48. But in the case of a voluntary payment of money which the par- 
 ty could not have been compelled to pay, no action vrill lie to recover it back. Hall v. Schultz, 
 4 Johns. 240, and n. ». 2d ed. Ibid. 1 Ksp. Dig. 119. And to recover money obtained through 
 fraud and misrq)resentation. Dana v. Kemble, 17 Pick. 645. 
 
I. ASSUMPSIT. 100 
 
 entitled (m) (1) as against a person who has usurped an office, and re- i- 
 ceived the known and accustomed fees of office, (2) but mere gratuitous ^s™*"™. 
 donations cannot be recovered in assumpsit (w). So assumpsit lies for 
 the value of goods which the defendant by fraifd induced the plaintiff to 
 sell to an insolvent person, and afterwards obtained for his own benefit (o). 
 And where the goods of a trader, after his act of bankruptcy, are taken in 
 execution, or otherwise tortiously disposed of without the concurrence of 
 the assignees, they may waive the tort, and declare in assumpsit for 
 money had and received, if the goods have been sold (A), but they must 
 adopt the latter form of action if they have affirmed and recognized the 
 wrongful sale and waived the original tort (9). Assumpsit also lies to re- 
 cover money paid or goods delivered by a bankrupt by the way of fraudu- 
 lent preference (r) ; and there are many other instances in which a party 
 may waive the tort, and sue for money had and received (s) (3). But in 
 these cases it is sometimes most advisable to declare in case or trover, in 
 order to avoid a set-off, or the effect of the law of mutual credit (4), in the 
 case of bankruptcy (i). So a master may sue a person who has enticed 
 away or harbored his apprentice in assumpsit, for the work and labor of such 
 apprentice (m) (5) ; and it lies to recover back rents tortiously received 
 (a). In some cases also where money has been extorted by duress of goods, 
 it may be recovered back in assumpsit (^y). But the proprietor of cattle 
 wrongfully distrained damage feasant, who has paid money for the pur- 
 pose of having them re-delivered to him cannot recover back that money 
 in this action, because such mode of proceeding would impose great diffi- 
 culties on the defendant, by not apprizing him of what he was to defend ; 
 and the law has provided specific remedies for trying the legality of a dis^ 
 
 (m) 3 Wills. 304; 2 T. R. 144; Cowp. 419; 16 East, 130. Where the ground of action is 
 
 Bui. N. P. 131; 5 Moore, 525; 1 B. & C. 418; assumpsit, declaring in tort Trill not render a 
 
 2 D. & B. 568; S. C. ; 2 Bar. & Cres. 129, 4 D. person liable who would not have been so on 
 
 & E. 283, S. C. his promise, 2 Marsh. 485; 3 B. & B. 62; I 
 
 (») 6 T. R. 681; 8 Taunt. 264; 1 Camp. B, & C. 94; 2 D. & E. 198, S. C; nor will it 
 
 124. in general avoid the consequences of nonjoinder 
 
 (o) 3 Taunt. 274; 5 Moore, 98; 1 B. & C. of a party, ante, 86, 87. 
 
 418; 2 D. & E. 568; S. C. (m) 3 M. &. Sel. 191; 1 Taunt. 112, When 
 
 (p) Supra, note (ro). not, 4 Taunt. 876. 
 
 (g) 7 B. & C. 310; 1 M. & R. 2 S. C. (s) 6 T. E. 683; Bui. W. P. 133; Cowp. 
 
 (r) See 4T. E. 211; 2D. & E. 568; 1 B. 414. 
 
 & C. 418, S. C. (y) Pratt v. Vizard, 5 Bar. & Adol. 808; 2 
 
 (s) 4 Bar. & Cress. 211, 6 D. & E. 265, S. Stra. 915; 4 T. E. 485; Bui. N. P. 132; 5 
 
 C. ; Pratt o. Vizard, 5 B. & Adol. 808. Bing. 37 ; 7 B. & C, 73 ; 9 D. & R. 889 , S. C. ; 
 
 (0 4 T. E. 211; see 10 East, 378, 418; 1 Wightw. 22. 
 
 (1) Vide Dumond v. Carpenter, 3 Johns. 183; Sturtevant v. Waterbury, 2 Hall's N. T. 453. 
 
 (2) Where a married man represents himself to be a widower, and thus induces a woman to 
 marry him, while his first wife is alive, such woman may recover of him for her services, during 
 such time as she may live with him, in assumpsit. Higgins v. Brown, 9 Missouri, 497. 
 
 (3) See post, 107 note, and cases cited to this point, of waiver of tort, 
 
 (4) Vide Billon v. Hyde, 1 Ves. 329, S. C. 1 Atk. 126; Hussey v. Fidell, 12 Mod. 324, S. C. 
 Holt, 95; Phillips i;. Thompson, 3 Lev. 191. Authorities limiting the right of set-off to eases of 
 mutual debts, and excluding the right to set off torts, and damages upon a special agreement. 
 M'Donald v. Neilson, 2 Cowen. 139. 
 
 (5) If a slave deserts his master and goes into the service of another, the master can recover 
 for services performed by the slave before he gives notice of his claim. Trongott v. Byres, 6 
 Cowen, 480. Case of James Le Eoy, 6 Johns, 274. But this principle is not to be applied to a 
 case where the master never had possession of the slave, and was chargeable with concealing 
 his claim from the defendant, while the slave was performing the services. Demyer v. Souzer, 
 6 Wend, 436, 
 
*1Q1 OP THE FORMS OF ACTIONS. 
 
 I. tress (1), viz. replevin, trespass, or trover (z). Again, this action lies to 
 ASSUMPSIT, recover interest (2) ; money due on an *account stated (3) ; or for services 
 and works of different descriptions, and for poundage due to the sheriff 
 (a) ; or for the sale, use,' or hire of goods or of land, or other personal or 
 real property; and upon bills of exchange, whether foreign or inland; 
 checks on bankers ; promissory notes ; policies of insurance on ships, or 
 on lives, or against fire ; or on charter-parties, when not under seal ; and 
 upon the implied contract to contribute towards the general average (6). 
 
 Assumpsit is also sustainable specially upon wagers (4) and. feigned 
 issues ; and upon awards, where the submission was not by deed (5) ; 
 also, to recover money due on an award made by virtue of an order of Nisi 
 Prius (c) ; on by-laws (rf) ; of an Irish (e), or foreign judgment (/) (6) or 
 for legacies charged on land (g-) (7), though the debt is more usual in the 
 last three instances (8). But neither assumpsit nor any other form of ac- 
 tion at law, is sustainable for a pecuniary legacy payable out of the 
 
 (j) Cowp. 414; 6 T. E. 298; 15 East. (e) 4 B. & C.411; 6 D. & R. 471, S. C; 
 
 309. see 6 East, 474. 
 
 (a) Cro. Eliz. 654. (/) Dougl. 1; 4T. R. 493; 3 East, 221; 
 
 (6) 3Campb. 480; 1 East, 220; 4 Taunt. 11 East, 124; 3 Taunt. 85. 
 
 123. (ff) 2Salk. 415; 6 Mod. 27; Lord. Raym. 
 
 (e) 5 East, 139. 937; 4 M. & Sel. 114. 
 
 {d) 1 B. & P. 98. 
 
 (1) By recovering a judgment in trespass for carrying away the plaintiff's goods, his pro- 
 perty in the goods is divested ; and such judgment is bar to an action of indebitatus assumpsit 
 against any one for the proceeds of the sale of the goods which were the subject of the trespass. 
 Floyd V. Brown, 1 Rawle, 121. 
 
 The owner of property in possession of a tenant of demised premises, may buy it on a sale of 
 the same as a distress for rent, and bring his action for money paid against the tenant. Wells v. 
 Potter, 7 Wend. 119. 
 
 (2) Vide Tucker i*. Randall, 2 Mass. 284; Greenleafu. Kellogg, 2 Mass. 268. But after 
 acceptance of the principal, an action will not He for the interest. Tillotson v. Preston, 3 Johns. 
 229 ; Johnston v. Brannan, 5 Johns. 268. 
 
 (3) But not on a running account. Scott v. M'Intosh, 2 Camp. 238. 
 
 (4) Philips V. Ives, 1 Rawle, 36. 
 
 (5) Mitchell v. Bush. 7 Cow. 185; Bates v. Curtis, 21 Pick. 247; TuUis v. Sewall, 3 Ham. 
 510. And a revocation of a submission to abitration not under seal, before an award, for which 
 assumpsit will lie. Brown v. Tanner, M'Clell. & Toung, 464. An award may be given in 
 evidence under the money counts. Brady v. Mayor, &o. of Brooklyn, 1 Barbour, 584. 
 
 (6) See in reference to judgments of other States. Lambkin u. Nance, 2 Brevard, 99; Shumr 
 way u. Stillman, 6 Wendell, 447; M "Kim v. Odom, 12 Maine, 94, 110; India Rubber Co. v. 
 Hoit, 14 Vermont, 92. So an action of assumpsit may be sustained in Massachusetts upon an 
 instrument made in another state, and which by the law of that state is a specialty, if by the 
 law of Massachusetts it is a simple contract. M'Clees v. Burt, 5 Metcalf, 198. 
 
 (7) Vide Beecker v. Beecker, 7 Johns. 99, which was an action of assumpsit against a devisee 
 of land charged with a legacy; the devisee having entered on the land, and the executors as- 
 sented to the legacy, it was held that he was liable on his express promise to pay the legatee; 
 the court avoided giving an opionion, whether he would have been liable on an implied, promise. 
 There are circumstances, however, which may amount to an express promise; as where an annu- 
 ity is charged by the will of the devisor upon the land devised, if the devisee has entered and 
 actually paid part of the annuity, the legatee may maintain assumpsit for the residue. Van 
 Orden v. Van Orden, 10 Johns. 30; See Deeks v. Strutt, 5 Term 690, contra, and the observa- 
 tions of the court upon that case in 10 Johns. 31. That the action cannot be maintained without 
 an express promise, see Brown v. Purer, 4 Serg. & Rawle, 213. The proper mode of proceed- 
 ing in such a case in Pennsylvania is, to bring the action against the executor and terre-tenants, 
 and to enter the judgment so as to charge the land, and not the persons of the defendants. 
 Brown v. Purer, Gauze i«. Wiley, 4 Serg. & Rawle, 504. And in such action it is [improper 
 to jom , as a defendant, the executor of the devisee. Moore v. Rees, 12 Serg. & Rawle, 436. 
 
 (8) Vide Hubbell v. Coudrey, 5 Johns. 132, and n. a. ibid. But debt will not lie against an 
 administrator in Pennsylvania on a judgment obtained in a foreign court against a foreign 
 administrator of the same intestate. Brodie v. Bickley, 2 Rawle, 431. 
 
I. ASSUMPSIT. 101 tt 
 
 general assets of the testator (A) (1) ; or for a distributive share of an »• 
 intestate's property, to which, the plaintiff is entitled (i), although the ***'"""''• 
 personal representative has promised payment ; unless there be evidence 
 showing that he holds the money, not as executor or administrator, but 
 in his individual character upon a new contract for a loan of it to him (A;), 
 It may also be supported for money due for tithes, where there has been 
 an agreement for a composition (Z) : but unless there have been such a 
 composition, the only remedy is in a Court of Equity or in the Ecclesias- 
 tical Courts ; or in debt upon the statute (m), to recover the treble value 
 of the tithe omitted to be set out, and which act extends only to prsedial 
 tithes that are capable of being set out in kind (w). This form of action 
 is also maintainable for money due for tolls (2), or to recover the value of 
 goods which should have been rendered in specie for toll ; but in such 
 case the declaration must state that the goods were of some certain value 
 (o). Assumpsit also lies for money due for port duties, and for stallage, 
 where there is a legal liability to pay, although there has not been any ex' 
 press contract (^p), and this altliough trespass might be sustainable, because 
 the owner may waive the tort (j9). So it lies for contributions to party- 
 walls (^q) (3) ; or canal calls (»•) ; or on promises to pay money in considerar 
 tion of forbearance to sue the defendant, or a third person (4) ; or in con- 
 sideration of services or work done ; or goods sold to the defendant, or 
 a third person at the defendant's *request ; and upon contracts to guaran- [ *102 1 
 tee(s) ; indemnify (<) ; to serve and employ (m), or perform works (a;)(5) ; 
 and against attorneys and solicitors (6), wharfingers (y), surgeons (z), 
 inn-keepers (a), carriers and other bailees, for neglect or other breach of 
 
 (ft) 5 T. R. 690; 7 B. & C. 544; 1 M. & R. (q) 14 Geo. 3, c. 78; 5 T. R. 130; 8 [T. R. 
 
 420, S. C. 214; 1 B. & P. 303. 
 
 (i) 7 B. & C. 542, 1 M. & R. 420, S. C. (r) 7 T. E. 36. 
 
 (/f) 1 M. & P. 209. (s) 1 Saund. 211 a ; 5 East, 10. 
 
 (0 Post, vol. ii.; Bao. Ab. Tithe, T. D. d.; (0 3 Wil3. 362; 3 Bast, 169; 2 T. R. 105; 
 
 Bui. N. P. 488 to 491. 2 B. & P. 98, 268. 
 
 (m) 2 & 3 Edw. 6, c. 13. (u) 2 East, 144; 4 Esp. Rep. 7T; Cowp, 
 
 (n) Bui. N. P. 188; Eagle on Tithes, 150. 437. 
 
 (o) 4 B. & A. 268; 6 B. & C. 385; 9 D. & (a;) 5 T. R. 143. 
 
 R. 452, S. C. (y) 7 T. E. 171 ; post, vol. ii. 
 
 (p) The Mayor of Newport v. Saunders, 3 (z) 1 Saund. 312, n. 2; Wils. 359. 
 
 Bar. & Adol. 411. (a) 8' Co. 32; 5 T. R. 273. 
 
 (1) Assumpsit lies against an executor for a pecuniary legacy on his express promise in con- 
 sideration of assets. Atkins and ax. v. Hill, and Hawkes and ux. «. Saunders, Cowp. 284. 
 289; Beeoker v. Beecker, 7 Johns. 103, 104; Opinion of Kent, C. J. Clark v. Herring, 5 Binn. 
 33; Van Orden ». Orden, 10 Johns. 31. And in the States of N. York and Penn., actions at 
 law against executors for legacies, are given by statute. Laws N. Y. sess. 36, o. 75, s. 19; 1 
 E. L. 814; 2 Eev. Stat. 114, s. 9. Dewitt and wife o. Sohoonmaker, 2 Johns. 243; Wilson e. 
 Wilson, 3 Binn. 559. Assumpsit lies for a pecuniary legacy in Pennsylvania, without any ex- 
 press promise. Clarke. Herring, 5 Binn. 98. In Massachusetts, Farwell ». Jacobs, 4 Mass. 
 635. In Connecticut, Warren v. Rogers, 2 Root, 166; Euaff ». Hanford, 6 Conn. 176. In New 
 Jersey, Cowell v. Oxford, 1 Halst. 430; Woodruff w. Woodruff, 2 Penn. 552. 
 
 In North Carolina, on an express promise, M'Neil v. Quince, 2 Hayw. 153. In New York, 
 see Kelsey, Deyo, 3 Cow. 133; Tole v. Hardy, 6 Cow. 333. 
 
 (2) Bearcamp Eiver Co. v. Woodman, 2 Greenl. 401; Proprietors u. Taylor, 6 N. Hamp. 
 499; Obesley v. Smith, 1 N. Hamp. 20; Proprietors of Quincy Canal v. Newoonjb, 7 Metcalf, 
 276. But see Centre Tamp. Co. v. Smith, 12 Vermont, 212. 
 
 (3) Ingleas v. Bringhurst, 1 Ball. 841; See Hart v. Eucher, 5 Serg. & Eawle, 1. 
 
 (4) An action of assumpsit lies to recover counsel fees. Wilson v. Burr, 25 Wendell, 388. 
 (0) Sidwell 1). Evans, 1 Penn. 383; Canfield v. Merrick, 11 Conn. 425. 
 
 (6) Stimpson v. Sprague, 6 Greenl. 471; Church v. Mumford, 11 Johns. 479; Ellis v. Hent 
 ry, 5 J, J. Marsh. 248; Varnum v. Martin, 15 Pick, 440," 
 
 Y6l. I. 1^ 
 
102 OF THE FORMS OF ACTIOWS. 
 
 »• Assumpsit is also the proper remedy for a breach of a promise to marry ; 
 
 AsiiniPiiT. ^^^ agaiast a vendor for not delivering goods bought (1) ; or against the 
 vendee for not accepting goods sold ; or for not delivering a bill of exchange 
 in payment for the same (6) ; or upon an express warranty of the goodness 
 or quality of any personal chattel, either on the sale or exchange thereof 
 or upon an express or implied warranty as to the property therein (c)(2) 
 and by and against vendors and purchasers for not completing a contract of 
 sale, and for not rendering a just account of moneys or goods (rf). So where 
 there has been an e:spress agreement not under seal between landlord and 
 tenant ; or where the law implies a contract on the part of the latter to man- 
 age the farm in a husbandlike manner ; this action may be sustained for 
 the breach of such contract (e). But where the tenant has been guilty of 
 voluntary waste, it is usual to declare in case, unless there be also a mo- 
 ney demand, which njight be included in a declaration in assumpsit (/). 
 And by the statute (g')(3), the executor of a tenant for life may, in as- 
 sumpsit, recover a proportion of rent up to the day of his testator's death, 
 where the tenancy determined on such death ; though when the tenant 
 held under a lease granted in pursuance of a leasing power, the remainder- 
 man must sue for the whole rent on such lease (A). The difficulty of in- 
 vestigating a disputed account before a jury seems also to constitute no le- 
 gal objection to this action (f). 
 
 Yfk^n the The action of assumpsit is in general the only remedy against an execij- 
 
 rrowd^ tor or administrator, for the breach by the testator of a contract not under 
 seal, which was made with him (/«) ; for (unless in the Court of Exche- 
 quer, in which wager of law is not allowed) (Z), debt is not sustainable 
 against an executor, as such, upon the simple contract of his testator ; al- 
 though it lies against an executor on a simple contract made with him in 
 that character («i). And in general, assumpsit is the only remedy for the 
 recovery of an instalment, (4) due on a simple contract, in respect of an 
 
 [ *103 ] entire sum payable by instalments, *the whole of which have not accrued 
 due ; as debt is not sustainable in such case (n). Where a simple contract 
 creates a collateral liability, as for the payment of the debt of a third per- 
 son, debt not.being sustainable, assumpsit is the only form of action (o). 
 
 (J) 4 East, 147; S B. & P. 582. (t) 5 Taunt. 431 ; 1 Marsh. 115. 
 
 (c) Post, vol. ii.; 2 Bla. Com. 451; 3 id. (k) 1 New Rep. 293; 9 Co. 86 b. 
 160; Cro. Jac. 474; 1 Uol. Abr. 90. (Z) 3 Bla. Com. 347; 9 Co. 88 a. 
 
 (d) lMarsh.ll5;lTaunt.572;posi,vol.ii. (m) 5 Bing. 200. 
 
 (e) 5 T.R. 373; 4 East, 154; 1 Hen. Bla. 99. (n) 1 Hen. Bla. 547; Cro. Jao. 504; 2 
 (/) Id. ibid.; 3 East, 70. Saund. 303, n. 6, 337, 3-50, 374; Fitzg. 302; 
 (g) 11 Geo. % 0. 19, 3. 1$. Com. Dig. Action, F. ; 3 Co. 22 a. ; post. 
 
 (A) 1 Swapst. 337; 2 Saund. 282, e. n. 2; (o) HariJr. 486; Com. Die. Debt. B.; 2 
 
 SVea. 311; 2Ve».&B. 334; 1 P, W. 117; 2 Lord Raym. 1040. 
 Bro. C. C. 659. 
 
 (1) So for not delivering goods where payment was to be made in eoods. Marshall© MoPher- 
 Bon, 8 GUI & Johns. 333; 
 
 (2) Evertson u. Miles, 6 Johns. 138; HuUool? v. Powell, 2 Caines, 216; Timrod i>. Shool- 
 bred, 1 Bay, 324; Kimball v. Cunningham, 4 Mass. 505; Ryers v. Bostwiok, 2 Con. Ct. 75; 
 Bowler II. Williams, 2 Brevi^rd, 304. Assumpsit does not lie against a sheriCF, or other officer, 
 for neglect of official duty. Walbridge v. ftriswold, 1 D. Chip. 162; Bailey v. Butterfield, 14 
 Mame, (2 Shepley,) 112. Nor against a collector of taxes, for neglect to levy, collect, and pay 
 overtaxes. Charlestown, d. Stacy, 10 Vermont, 562. 
 
 iV>. ?T^? ^m"* ^"'^ ^^* ®'""'- °**''" statute, are in force in Penn. Rob. Dig. 236, 3 Bin 626 
 _ C4) Vide Tucker v. Randall, 2 Mass,. 283. Assumpsit lies on a promissory note by which Uie 
 
 S„=^tl^olf n*",'"'*''^^ althoughJ;he principal is not yet payable. Greenleaf v. Kellogg, 2 
 ftsaa. 568, 284; Cooley v. Rose, 3 Mass. 221. " ■-¥ y vcuuj^g, ^ 
 
1. ASSUMPSIT; 108 
 
 For the same reason, assumpsit is the only remedy at the suit of the payee i- 
 or indorsee of a bill of exchange against the acceptor, or of the indorsee ■^"'«»«*' 
 of a promissory note against the maker (/>). And on an award to per- 
 form any act, except to pay money, assumpsit is the only remedy, unless 
 the submission were by bond (9). Formerly it was thought, that iii ail 
 action of debt on simple contract, the precise sum stated to be due in the 
 declaration must be recovered, or that the plaintiff would be nonsuited 
 (r) ; and therefore at that time, it was usual, when the amount of thd 
 debt was uncertain, to declare in assumpsit ; but as this notion no longet 
 prevails, and the plaintiff will recover, if he prove any sum to be due to 
 him, though less than that stated in the declaration, it is no longer mate* 
 rial in this respect whether the plaintiff declare in assumpsit or debt (s)* 
 
 When a party has different securities of different descriptions for the ofassump- 
 same debt or demand, and from the same person, he must found his ac* sit where 
 tion on that security which is in law of the higher nature and efficacy. *^"* ^™ 
 The law has prescribed different forms of action, on different securities, curittesr' 
 Thus assumpsit cannot in general be supported when there has been an &c; 
 express contract under seal (1) or of record (2), which relates to the 
 same subject matter, and is still in force ; but the party must proceed ia 
 debt or covenant where the contract is under seal (3), or in debt or scire 
 -facias if it be of record, even though the debtor, aft«r such contract 
 were made, expressly promised (4) to perform it («). And if there be A 
 charter-party upder seal between the master and freighter, assumpsit will 
 not lie by the owners for freight, which the defendant by the deed cove- 
 nanted with the master to pay (u). But if the owners of a ship be not 
 charged directly on the contract of charter-party, but Upon their general 
 liability, they may be sued in case for negligence in cdnveying the goods, 
 notwithstanding the charter-party be under seal, entered into by the master, 
 and whereby he covenanted to convey the cargo : the action not being 
 inconsistent with the provisions of the deed, and the master, contracting 
 as such, *not as part owner (a;) (5). If the deed be only executed by the [ *104 ] 
 
 (p) 2B. &P. 78; 1 Taunt. 640; aadChitty Bar. & Ores. 968; 7 D. & R. 381, S. C; 10 
 
 on Bills, 7th ed. 428; post. East, 378; 3 C. & P. 858. A foreign i^iig- 
 
 (q) 2 Saund. 62 b. n. 6. ment does not merge a simple contract debt, 
 
 (r) 3 Bla. Com. 155. 11 East, 118, 126. 
 
 (s) 1 Hem Bla. 259, 559; Dougl. 6, 732. , (u) 1 M. & Sel. 573; 3 Campb. 549, n. a. 
 
 (0 1 Boll. Abr. 11, 517; 1 Leon. 293; 2 Where it does not lie for interest secured by 
 
 Leon. 110; Cro. Jao. 506, 598; 2 Stra. 1027; deed, 1 M. & Sel. 575. 
 
 2 T. R. 100, 105; 1 New Rep. 10& See the (i) 6 Moore, 415; 3 B. & B. 171, S. C. 
 obserTations of Bay ley, J. , on this case in 4 
 
 (1) Vide Young v. Preston, 4 Cranch. 239; McNaughten v. Partridge, 11 HaM. 223; Codnlan 
 V. Jenkins, 14 Mass. 93; Fletcher v. Piatt, 7 Blackf. 522; Brown v. Gauss, 10 Missouri, 265; 
 Hinkley v. Fowler, 15 Maine, (3 Shepley.) 285. It does not lie on a sealed policy of insui^anee. 
 Crazzam v. Ohio Ins. Co., Wright, 214. In some oases where a party has covenanted to do an 
 act, and failed in the performance, the covenantee has beeil allowed to recovei^ back the consid- 
 eration paid, in assumpsit. Weaver v. Bentley, 1 CaineS, 47 ; D'CItrioht i). Melchoi?, 1 Ball. 
 428; Howes v. Barker, 3 Johns. 509. 
 
 (2) Andrews v. Montgomery, 19 Johns. 162. 
 
 (3) Vide Richards v. Killman, 10 Mass. 243, 247. 
 
 (4) Landis v. Urie, 10 Serg. & Rawle, 321, 14 Mass. 99; Miller v, WatSdh, 5 doW. l9d; 
 (Jillion V. Stewart, 7 Watts, 116; Hawkes v. Touhg, 6 N. Hamp. 300; Anderson ■». Solomoti, 2 
 Con. Ct. 329; Davis v. Gibson, Cam. & N. 102; Somerville v. Stephenson, 3 Stern. 271; Riioh- 
 ards V. Rillam, 10 Mass. 239; Bliss v. NegtiS, 3 Mass. 46. But it has beeti h^ld that wheife 
 there is a, covenant to pay money, and part has been paid, assumpsit will lie on a promise tlo 
 pay the balance. Danforth v. Schoharie Tump. Co., 12 Johns. 277; Stump ». Estill, Peck. 
 175. 
 
 (5) Assumpsit lies against a company for goods furnished, tKoagh itd agents had contr'atit^ 
 
104 OP THE FORMS OP ACTIONS. 
 
 I- plaintiff and not by the defendant, the action must be in assumpsit («/) (1) ; 
 AJSOTipsiT. ^jj^ jf there be an agreement by deed to let a house, by words not amount- 
 ing to an actual demise, the party may maintain assumpsit for use and 
 occupation (sr). So assumpsit lies for the use and occupation of a water- 
 course (a). Where on the separation of a husband and wife, he covenanted 
 by deed with a trustee to pay an allowance for her separate maintenance, 
 but made default, and the trustee provided the wife with necessaries, it 
 was decided that he might support assumpsit on the common-law obliga- 
 tion (6). So if the contract under seal be invalid (2), and there be any 
 evidence upon which an implied contract can be raised, assumpsit may in 
 some cases be supported, as where an annuity deed has been set aside, or 
 objected to for some defect (3) in the memorial, &c. (c) : and the taking a 
 security by deed on usurious terms, for money previously lent and not af- 
 fected by usury, would not bar an action of assumpsit for money lent (^d). 
 And where a feme covert, without authority from her husband, contract- 
 ed with a servant by deed, the service having been performed, it was de- 
 cided, that the servant might maintain assumpsit against the husband (e). 
 If in respect of a new consideration, there has been a new simple contract 
 to pay a debt, or perform a contract under seal, assumpsit may be support- 
 ed (/) (4) ; as on a promise to an assignee of a bond, to pay him in con- 
 sideration of forbearance (g*) (5) ; or on a promise by an heir, having assets 
 by descent, to pay the debt of his ancestors for the same consideration (A) ; 
 or on a promise to the husband to pay the arrears of the rent-charge due to 
 
 (y) 3 Esp. Rep. 42. {d) 1 Saund. 295, note, 1. 
 
 (z) 4 Esp. Rep. 59. When not, 2 Taunt. (c) 6 T. R. 176. 
 
 145; 6 B. & A. 322. (/) 12 East, 578. 
 
 (a) 4 Bar. & Cres. 8; 6 D. & R. 42, S. C. (g-) 2 Bla. R. 1269; 1 Saund. 210. n. 1; 8 
 
 (A) 3 New Rep. 148. T. R. 595. 
 
 (c) 6 East, 241; 3 Taunt. 56. See excep- (A) 2 Saund. 137 b; C!om. Dig. Action As- 
 lion, 8 East, 231. sumpsit, B. 1. 
 
 ■ ed under their own seals, to pay the plaintiff, if he would furnish the goods to the company. 
 
 Craw V. Bangor House, 3 Fairf. 354. 
 
 (1) Hatch V. Crawford, 2 Porter, 54. Where land is conveyed by deed poll, and the grantee 
 enters under the deed, certain duties being reserved to be performed, as no action lies against 
 the grantee on the deed, the grantor may maintain assumpsit for the non-perfortfiance of the 
 duties reserved. Goodwin v. Gilbert, 9 Mass. 510. Fletcher v. M'Farlane, 12 Mass. 43; Guild 
 V. Leonard, 18 Pick. 511. See Nugent v. Riley, 1 Metcalf, 117, 121 ; Newell v. Hill, 2 ib. 180, 
 181; Carter «. Carter, 14 Pick. 424, 428; Bawson v. Copeland, 2 Sandford, Ch. 2M. Assump- 
 sit lies to recover the consideration money for land sold. Shephard v. Little, 14 Johns. 210; 
 Velie V. Myers, 14 Johns. 162; Bowen v. Bell, 20 Johns. 888, 205; Wilkinson v. Scott. 17 Mass. 
 249; Butler v. Lee, 11 Alabama, 885. 
 
 (2) Or be rescinded. Hill v. Green, 4 Pick. 114; See Watchman v. Crook, 5 Gill & Johns. 
 240; Hitchcock v. Lukens, 8 Porter, 833. 
 
 (3) Vide Shore i;. Webb, 1 Term, 732; Beauchamp v. Borrett, Peake's Cas. 109: Richards 
 ». Borrett, 3 Esp. 102. 
 
 (4) Codmani). Jenkins, 14 Mass. 95; Hawkes v. Young, 6 N. Hamp. 300; Andrews o. 
 Montgomery, 19 Johns,_162; Miller v. Watson, 7 Cow. 39. Where the terms of a sealed in- 
 strument have been varied by parol, assumpsit lies in respect to the terms thus varied. Mill 
 Dam Foundry v. Hovey, 21 Pick. 417. A promise to pay a specialty debt, which has been dis- 
 charged by a certificate of Bankruptcy, does not revive the original debt as a debt by 
 specialty. The original debt is merely a consideration, which renders the new promise av.iilable. 
 Case of Field's Estate, 2 Bawle, 351. Where a tenant has held by lease with the usual cove- 
 nants, and the lease expires, and the tenant still continues to hold the land with the consent 
 and permission of the landlord, he shall hold subject to all the covenants contained in the ex- 
 pired lease, for the breach of any of which he may be sued in assumpsit; for the law raises the 
 implied assumpsit of his continuing to hold on the same terms as he did by the lease 1 Esp. 
 Dig. 7. •! r 
 
 (5) 10 Serg. & Rawle, 321. In Dubois v. Doubleday, 9 Wend. 317, it was held, that as- 
 sumpsit would not lie by the assignee of a bond, except on an express promise, although his 
 ngM to the money has been recognized, a partial payment made to him, and a negotiation had 
 lor the payment of the balance. 
 
1. ASSUMPSIT. 104 a 
 
 the wife ia her life-time, although the rent was secured by deed.(0 ; or by i- 
 the debtor himself, in respect of any new consideration (Jt). And though -^sanMPsiT. 
 it has been decided that assumpsit cannot be supported against a party, on 
 his undertaking to pay the debt and costs recovered against himself, in 
 consideration that the plaintiff would ' stay execution (Z) it is clear that 
 such action might be supported on a similar undertaking made by a third 
 person (m) (1.) So between partners, who have by deed covenanted to 
 account with each other, and to pay over what shall appear to be due : if 
 they state an account, and one expressly promise to pay the balance, as- 
 sumpsit *may be supported, (2) notwithstanding the deed (n). And where [ *105 J 
 a contract under seal has afterwards been varied in the terms of it by a 
 distinct simple contract, made upon a sufficient consideration, such substi- 
 tuted or new agreement must be the subject of an action of assumpsit, 
 and not of an action of covenant (w) (3) ; and where several things uncon- 
 nected with a deed, are, with other stipulations in a deed, afterwards 
 made the subject of a parol contract, assumpsit may be sustained for the 
 breach of it (jp) ; and when freight is recoverable pro rata itineris, as- 
 sumpsit is the proper remedy, and not covenant on the charter-party (jq). 
 It is also a rule, that when a bond or other security, under seal or of 
 record, has been accepted in satisfaction of a simple contract, the latter 
 is merged in such higher security, and assumpsit is not sustainable (r) ; un- 
 less such new security be void on account of usury (s) or under the 
 annuity act, &c. in which cases the party may proceed on the original sim- 
 ple contract if valid (f) (4). So if an infant give a bond (5) in a penalty 
 for necessaries, the bond being inoperative, the creditor may proceed in 
 
 (i) 1 Leon, 293; 2 M. & Sel. 309. (n) 2 T. K 483, 478. When partners 
 
 (fc) Cro. Car. 343; Cro. Eliz. 67; 12 Mod. may sue each other, see ante, 39. 
 
 511 ; 1 Vin. Ab. 272; 1 Rol. Ab. 8, pi. 6; (o) 1 East, 630; 3 T. K. 596; 4 Taunt. 
 
 Bac. Ab. Assumpsit, A. ' 748. 
 
 (Z) Cowp. 128, 129, see Hutten, 77; Cro. {p) 1 M. & Sel. 575; 2T. R. 479. 
 
 Car. 8. Semble that a party discharged out (5) 10 East, 295; 1 New. Rep. 240. 
 
 of custody on a ca. sa. on his promise to pay (r) Cro> Car. 415; Bac. Ab. Debt, G. Ob- 
 
 ot a future period, is liable in assumpsit upon ligation, A. note; 3 East, 259. 
 
 such new agreement, 4 Burr. 2483. (s) 1 Sauud. 295, note 1. 
 
 (m) Cowp. 129 ; Hardr. 71 ; 1 Lev. 188. («) 6 East, 241 . 
 
 (1) Duncans. Kirkpatriok, 13 S. &B.293. 
 
 (2) In an action on an arbitration bond, on the back of which the parties had indorsed an 
 agreement under seal, enlarging the time for making the award, and it was made within such 
 time. The court said that by the decision in Brown v. Goodman, (3 T, K. 592.) an action would 
 not lie on the bond ; the party has another remedy upon the submission implied in the agreement 
 to enlarge the time. Freeman v. Adams, 9 Johns. 110. They say, that if a contract be subse- 
 quently changed , you must declare otherwise than on the contract itself; and they distinguish 
 between cases where actions are brought upon such agreements, and those cases where the en- 
 largement of time is presented by way of defetise, as in Fleming v. Gilbert, 3 Johns. 528. 
 
 (3) .Lattimoi^e ®. Hansen, 14 Johns. 330; Munroe ». Perkins, 9 Pick. 298; Hill ». Green, 4 
 Pick. 114; Sibley D. Browne, 4 Pick. 139; Baird «. Blagrove, 1 Wash. 170. Vide Casey and 
 Lawrence u. Brush, 2 (Gaines, 296; See also Baits i). Peters, 9 Wheat. 556. A parol enlarge- 
 ment of the time set in a sealed instrument for the performance of covenants is good; but where 
 there is such enlargement of a condition precedent, the plaintiff loses his remedy upon the cove- 
 nant itself, and must seek it upon the agreement enlarging the time of performance. Lang- 
 worthy V. Smith, 2 Wend. 587. 6 Hals. 327. Mill Dam Foundry v. Hovey, 21 Pick. 418. 
 Luciani v. The American Fire Ins. Company, 2 Whart. 167. And where a party to a special 
 contract under seal is prevented by the other party from fully performing it, he may recover for 
 what he has done in an action of assumpsit for his labor. Selby v. Hutchinson, 4 Gilmau, 319. 
 
 (4) Or promissory note, M'Crillis D. How, 3 New Hampshire, 348. Hammond «. Hopping, 
 13 Wend. 505. But where a note, given at the time when the liability of the defendant to the 
 plaintiff occurs, is usurious, there can be no recovery in the same action on the money counts. 
 Eice V. Welling, 5 Wend. 595. 
 
 (5) As to promise by the debtor after usurious securities have been destroyed, to repay prin- 
 cipal and interest, vide Barnes v. Hedley, 2 Taunt. 184. 
 
105 OP THE P0BM3 OP ACTIONS. 
 
 I- assumpsit (m) (1) ; and if after a secret act of bankruptcy, the bankrupt 
 AsairMPgiT. • gg ^ jjQjj^ iji satisfaction of a simple contract debt, it will not so far 
 extinguish the simple contract as to preclude the creditor from peti- 
 tioning thereon for a commission (x). And the acceptance by a land- 
 lord of a bond for rent is no extinguishment of the rent, because the rent, 
 issuing out of the realty, is a debt of as high a nature as a specialty 
 claim Q/'). But a judgment obtained on a bond would extinguish the dc 
 mand on the bond (*) . The taking a collateral security of an higher nature, 
 whether from the principal or a surety, does not preclude the creditor from 
 suing the original debtor in assumpsit on the first contract (a) ; though 
 judgment may have been obtained upon such collateral security (6) (2>. 
 Porrent, j^ ^^g ^iso a branch of this rule, that assumpsit could not be supported 
 for rent, &c., issuing- out of real property, though not reserved by deed, 
 unless an express promise to pay could be proved (3) : the demand, in the 
 technical phrase, savoring- of the realty, and being recoverable by higher 
 remedies, as by debt or distress (c). The statute 11 Geo. 2, c. 19 (4,). 
 r •106 ] was passed to remedy the common law in *this respect : since which, rent 
 due on demise not under seal may be recovered by action of assumpsit 
 as well as debt (rf). And indeed, the notion that assumpsit does not 
 lie for a duty, merely because the plaintiff claims an inheritance, in respect 
 whereof the duty is payable, appears no longer to exist (e) (5). And if a 
 party hold over, after the expiration of a demise by deed, he may be sued 
 in assumpsit for use and occupation, to recover rent accruing due after the 
 end of the term (/) (6) (7). A corporation aggregate may maintain as- 
 
 (u) Bui. N. P. 182! Co. Lit. 172; Cro. (a) 2 Leon. 110; 6 T. E. 176, 177; 18 
 
 Eliz. 920. Ves. 20; 5 Dow. 234. 
 
 (x) Bui; N. P. 182; Stra. 1042; 1 Hen. (6) 3 East, 251. 
 
 Bla. 462. (c) 1 Eol. Ab. 7, Action sur Case, O.J 
 
 (y) Buller's N. P. 182 ». cites 3 Danv. Cro. Jac. 598. 414; Cro. Eliz. 242; 3 Lev. 
 
 Abr. 507, A. 1. That rent, whether due on 150, 261; 8 Wooddes, 163, 153;Preem. 234. 
 
 a lease or a parol demise, is of equal degree (d) See as to the count for Cse and Occn- 
 
 with a specialty, at least in the administra- patlon, post. 
 
 tion of assets, see Com. Dig, Administration, (e) Willes, 111, 118. 
 
 C. 2; Toller, 278. (/ ) 4 B. & C.8; 6 S. R. 42, S. C. 
 
 (z) Bul.N. P. 182a!6Co. 44. 
 
 (1) Vide 1 Campb. 558, n. See the doctrine stated, Koof v. Stafford, 7 Cow. 179, and the 
 cases there cited. 
 
 (2) Willoughby I). Speal, 4 Bibb. 397; Hills v. Elliott, 12 Mass. 26; Snow v. Thomaston 
 Bank, 19 Maine, (1 Appleton,) 269. 
 
 Vide Norris v. Aylett, 3 Campb. A mortgage of lands as security for a simple contract 
 debt, though it contain a stipulation against personal liability on the mortgage, does not ope- 
 rate as payment of the debt; nor discharge the mortgagor from personal liability for it. Ains- 
 ley D. Wilson, 7 Cowen, 662. See also, Hawley v, Foote, 19 Wend. 516, 
 
 (3) Vide Smith v. Stewart, 6 Johns. 48. Marshall. M'Pherson, 8 Gill & Johns. 338. 
 
 (4) The xiv. and XV. sections of this statute are in force in PennsjZtiania, Roberts' Dig 236. 
 8 Binn. 626. 
 
 (5) Vide Eppe v. Cole, 4 Hen. & Mun. 161. Hayes v. Acre, Cam. & Norw. 19. Smith 
 01 Sheriff of Charleston, 1 Bay, 444. See also Cummings v. Noyes, 10 Mass. 433, where, 
 after reversal of a judgment in favor of the demandant, who had entered into possession, it was 
 held, that the tenant might maintain assumpsit for the mesjie profits. Where there is an express 
 agreement to pay rent, assumpsit will lie to recover it without proving occupancy of the premises 
 leased. Stier v. Surget, 10 Smedes & Marsh. 154. But assumpsit for use and occupation will 
 not lie where the defendant has neither occupied, nor held the premises during the time for which 
 thereoovery is sought. Beach v. Gray, 2Denio, 84. Assumpsit lies to recover back money 
 paid under a judgment subsequently reversed. St^irges v. Allen, 10 Wendell, 854. 
 
 (6) So indebitatus assumpsit will lie to recover the money agreed to be paid for owelty on a 
 parol partition of lands; but there must be an averment of circumstances to take the contract 
 out of the statute of frauds. Walter v. Walter; 1 Whart. 292. 
 
 (7) Assumpsit will not lie for use and occupation, where the defendant's possession 
 
I. ASSUMPSIT. 10 
 
 swmpsitfor the use and occupation of buildings, or land, or tolls, though ^■ 
 they did not grant the tolls to the occupier by any instrument under their ^sscmpsit. 
 common seal (§•). 
 
 Though a statute may in some respects be considered as a specialty (Ji), On a stat- 
 yet assumpsit may be supported, for money, &o. accruing due to the plain- "**• 
 tiff under the provisions thereof (1), he not being thereby restricted to any 
 other particular remedy (J). The order of an inferior court of justice may 
 be the subject of this action, if there be an express agreement to observe 
 the same (Je) . 
 
 This action is also sustainable upon i\ye judgment ot a foreign Court (2), On a judg- 
 which is not considered as a debt of record in this country (Z) ; and it lies '"®°*" 
 upon an Irish judgment (m) (3,) and upon a Scotch decree (wj. But nei- 
 
 (ff) Mayor of Stafford v. Till, 12 lloore, (fc) 2 B. & P. 484. 
 
 260; The Mayor and Burgesses of Carmarthen {l) 1 Dougl.4; 11 East, 124. When not, 
 
 V. Lewis, 6 Car. & P. 608. 1 Campb. 63, 253. 
 
 (A).l Saund. 87, 38. (m) 4 B. & C. 411; 6 D. & K. 471, S. C. 
 
 (i) Bui. N. P. 129; Cowp. 474; Doug. 10, [11 A. & E. 179.) 
 
 n. 2, 402,407; 5 T. K. 130; Com. Dig. Action (n) 4Bing. 686; 1 M. & P. 663, S. C. 
 upon the Statute. See post, 112. 
 
 ■was tortious; no contract existing in such a case. Ryan v. Marsh, 2 N. & M. 156; Stookett v. 
 Watkins, 9 Gill & John. 326; Wiggins v. Wigginsj 6 N. Hamp. 298; Rickey v- Hinde, 6 Ham. 
 871; Lloyd v. Hough, 1 Howard, (U. S.) 153; De Young v. Buchanan, 10 Gill & Johns. 149; 
 Ward V. Bull, 1 Branch, 271; Brewer v. Craig, 3 Harr. 214; Curtis v. Treat, 8 Shepley, 525. 
 It is, however, competent for the parties, to waive the tort and in that case assmupsit lies. 
 8 Shepley, 525. Nor for rent accruing under a written lease, before its termination. Gage v. 
 Smith, 14 Maine, (2 Shepley,) 466; Blume «. M'Clurken, 10 V7atts, 380. Assumpsit for use 
 and oocupaj^ion will not lie where the defendant has neither occupied nor held the premises dur- 
 ing the time for which the recovery is sought. Beach v. Gray, 2 Denio, 84. 
 
 (1) Pawlet V. Sandgate, 19 Vermont, (4 Washb.) 621. Assumpsit will lie upon the Vermont 
 Statute, (Rev. Stat. c. 16, § 6,) which provides that where an order of removal is made, and 
 the pauper cannot be removed on account of sickness, the town procuring the order to be made 
 shall support the pauper until he can be removed, and may recover the expenses of sickness and 
 removal from the town to which the pauper was ordered to be removed.'if such town shall neg- 
 lect to make payment for fifteen days after notice. Pawlet v. Sandgate, 19 Vermont, 621. Jls- 
 sumpsit will not lie to recover back money won at play. Billon v. Hyde, 1 Ves. 330, S. C. Atk. 
 128. It should be debt, if the party sue under the stat. 9 Ann. c. 14; Turner e. Warner, Andr. 
 70; Bristow v. James, 7 Term, 257; M'Keon v. Caberty, 3 Wendell, 494. In Pennsylvania, 
 the action may be debt or case. Act of 22d April, 1694. 8 Sm. Laws, 182. Aliter in Massa- 
 chusetts, if the action be brought vrithin three months from the losing of the money. Babcock 
 II. Thompson, 3 Pick. 446. 
 
 (2) Vide Phil. Ev. 242, 243; Buttrick v. Allen, 8 Mass. 173; Bissell v. Bridges, 9 Mass. 464; 
 Hubbell V. Coudrey, 6 Johns. 132. Debt also.lies on such judgment, Cole v. Driskell, 1 Blackf. 16. 
 See also Hoagland v. Rogers, 8 Blackf. 501. Debt or assumpsit, it seems, will lie on a justice's 
 judgment from an adjoining state. Silverlake Bank v. Harding, 5 Ohio, 545. 
 
 (3) Assumpsit will not lie on a judgment rendered in a sister state. Garland v. Tucker, 1 
 Bibb. 361 ; Andrews v. Montgomery, 19 Johns. 162; M'Kim v. Odom, 3 Pairf. 94 ; India Rubber 
 Co. V. Holt, 14 Vermont, 92. But see Hubbell v. Coudrey, 5 Johns. 182; Shumway v. Stillman, 
 
 6 Wend. 447 ; Lambkin v. Nance, 2 Brevard, 99. ^ 
 Nor on a judgment of a justice of the peace. Bain v. Hunt, 3 Hawks, 572. But see Robinson 
 
 II. Prescott, 4 N. Hamp. 450; Mahurin v. Bickford, 6 N. Hamp. 667; Collins v. Modiset, 1 
 Blackf. 60; Adair v. Rogers, Wight, 428; in which, judgments of a justice of the peace render- 
 ed in another State are placed on the same footing with foreign judgments. 
 
 As to the effect of a judgment obtained in one of the United States, when made the subject of 
 an action in another, see Armstrong v. Carson, 2 Dall. 302; Bartlett v. Knight, 1 Mass. 401; 
 Bissell V. Briggs, 9 Mass. 462; Hitchcock v. Aicken, 1 Gaines, 460; Taylor v. Bryden, 8 Johns. 
 173; Hubbell «. Coudrey, 5 Johns. 132; Phillips' Ev. Dunl. ed. 254, n. Paulding ». Wilson, 13 
 Johns. 192; M'Rea v. Mattoon, 13 Pick. 53; Thurbur v. Blackbourne, 1 New Hamp. 242; 
 Shumway v. Stillman, 4 Cowen, 292; Holbrook v. Murray, 5 Wend. 161; Harrods, Barretto, 
 1 Ham. 155; Harding v. Alden, 9Greenl. 140; Winchester v. Evans, Cooke, 429; Curtis b. 
 Gibbs, 1 Pen. 399; Miller v. Miller, 1 Bailey, 242; Wernway v. Paulding, 5 Gill & Johns. 500; 
 Hodge V. Beoderick, 1 Terger, 125. But in Mills v. Duryee,in the Supreme Court of the U. S., 
 
 7 Oranch, 481, it was held that nil debet was not a good plea to an action of debt founded on 
 the judgment of anpther State; because such judgment was conclusive between the parties, such 
 
106 o 
 
 OP THE FORMS OP ACTIONS. 
 
 I. ther assumpsit nor debt can be sustained on the decree of the Court of 
 ASSUMPSIT. Chancery for a specific sum of money, founded on equitable considerations 
 only (o) (1), or on a mere interlocutory order of a Court of Law (jo). 
 But an action may be maintained on the decree of a Colonial Court for 
 payment of a balance due on a partnership account (9). We have already 
 noticed the instances in which an action is sustainable by a party against 
 his co-parlner (r) (2). 
 
 Assumpsit cannot be supported against a corporation (3), because a cor- 
 poration cannot contract by parol (s) ; except in the case of promissory 
 
 By and 
 against 
 corpora- 
 tions. 
 
 (0) 8 B. & Aid. 52; 8 B. & C. 20; 2 M. & 
 K. 165, S. C. 
 
 (pi 2 Hen. Bla. 248; 4 Taunt. 705; 3 B. & 
 Aid. 56. 
 
 (5) .8 B. & C. 16; 2 M. & R. 153, S. C, 
 
 1 Campb. 253. 
 (r) Ante, 39. 
 (s) 1 Rol. E. 82; see 5 Taunt. 792; 4 Bing. 
 
 77. 
 
 being the effect to which it was entitled in the State where rendered, and therefore it could only 
 be denied by the plea of nuZ tiel record. The same point was decided in Hampton v. M'Connell, 
 3 Wheat. 234. See James v. Hoar, 2 Rand. 203. As to the propriety of the plea of JViZ Debet 
 see farther, Hal! v. Williams, 6 Pick. 247; Thurber v. Blackbourne, 1 N. Hamp. 242; Curtis 
 V. Gibbs, Pen, 405; Starbuck v. Murray, 6 Wend. 148; Clarke v. Day, 2 Leigh, 172; Spenoerii. 
 Blockway, 1 Ham. 260; Goodrich v. Jenkins, 6 Ham. 42; GuUich v. Loder, 1 Green, 68; St. 
 Albans v. Bush, 4 Vermt. 58; Chipps v. Yaucy, 1 Breese, 2; Kimmell v. ShuUz, 1 Breese, 128. 
 The decision in Mills v. Duryee, has been acquiesced in by the courts of New York, (Andrews v. 
 Montgomery, 19 Johns. 160,) subject to these qualifications, that the party against whom judg- 
 ment was rendered is not to be precluded from showing, that such judgment was fraudulently 
 obtained, or that the State Court had not jurisdiction of the person of the defendant. Borden v. 
 Fitch, 15 Johns. 121. JVil Debet, however, is a proper plea in an action of debt on a judgment 
 recovered before a justice of the peace of another State. Warren i). Flagg, 2 Pick. 448. In the 
 case of Aldrich v. Kinney, 4 Conn. 380, Ch. J. Hosmer reviews all the decisions, and comes to 
 the conclusion, that the records of the courts of other States are conclusive in cases only where 
 they had jurisdiction of the cause, and of the person of the defendant. In Hall v. Williams, 6 
 Pick. 237, Ch. J. Parker has expressed the opinion that in all instances the jurisdiction of the 
 court rendering the judgment may be inquired into. The court were further of opinion, with 
 the Supreme Court of Connecticut, that if it appeared that the court rendering the judgment 
 had jurisdiction, the record is conclusive evidence of the debt. The case of Starbuck v. Murray, 
 5 Wend. 148, is to the same effect. In Shumway v. Stillman, 6 Wend. 447, in an action on a 
 judgment of a court of a sister State, it was held, that the record being only prima facie evi- 
 dence of the defendant's appearance by attorney, that fact might be contested. ^So held in 
 Gleason v. Dodd, 4 Metoalf, 333 ; Watson v. New England Bank, 4 Metcalf, 343. See M'El- 
 moyle v. Cohen, 13 Peters, 312; Wilson v. Bank of Mt. Pleasant, 6 Leigh, 670; Hale v. AVil- 
 liams, 1 Fairf. 278; Whittier v. Wendell, 7 N. Hamp. 257; Adams v. B«we, 2 Fairf. 94, 95; 
 Harley v. Root, 11 Pick. 390; Stegal v, Wyche, 5 Yerger, 83; Chitty Cont. (5th Am. ed.) 
 790, n. 1. 
 
 (1) See Hugh v. Higgs, 8 Wheat. 697; Storer v. Hinkley, 3 Caines, 37. Aliter, in Penn- 
 sylvania, Evans v. Tatem, 9 Serg. & Eawle. 252. See Dubois v. Dubois, 6 Cow. 494. Post, 
 110, note. 
 
 (2) See also Atwater v. Fowler, 1 Hall, 181. 
 
 (3) But it has been decided in some late cases in this country, that assumpsit would lie 
 against a corporation, even on an implied promise. Danforth v. Schoharie Turnp. Co. 12 Johns. 
 227; Bank of Columbia v. Patterson in Sup. Court U. S. 5 Hall's L. J. 489, cited 12 Johns, 231, 
 S. C. ; 7 Cranoh, 299 ; Hayden v. Middlesex Turnp. Corporation, 10 Mass. 897 ; Dunn v. Rector, 
 &c.ofSt. Andrew's (Church, 14 Johns. 118; Overseers of N. Whitehall d. Overseers of S. White- 
 hall, 3Serg. & Rawle, 117; Ellis v. Merrimac Bridge, 2 Pick. 243. Poultney i>. Wells, 1 Aiken's 
 (Vermont) 180. Savings Bank u. Davis, 8 Conn. 202, and the oases there cited. Church v. 
 Mulfud, 3 Halst. 182; Waring t>. Catawba Co., 2 Bay, 109; Chesapeake &c. Canal Co. v. 
 Knapp, 9 Peters, 541. In Connecticut it has been decided that no action at law will lie against 
 a county. Ward v. The County of Hartford, 12 Conn. 404. A special action of assumpsit will 
 lie against a bank for refusing to transfer stock. The King v. Bank of England, 2 Doug. 524. 
 Shipley v. Mechanic's Bank, 10 Johns. 484; Kortright v. Buffalo Com. Bk., 20 Wendell, 91, 
 S. C. 22 ib. 348. See also Gray v. Portland Bank, 3 Mass. 364. An insurance company may 
 
 • make a valid promissory note, which will be held good until the contrary be shown. Barker v. 
 Mechanics' Fire Ins. Co. 3 Wend. 94. But a note by which J. F., as president of an insurance 
 company, promises to pay a sum certain, is not the note of the company, but of the maker 
 
 alone. Ib. 
 
t. ASSUMPSIT. 1066 
 
 notes (t) and bills of exchange, where the power of drawing and accept- i- 
 ing them is recognized by statute (u), and other contracts sanctioned by ^'^rMPgn. 
 particular legislative provisions (?;) (1). But a corporation may be 
 plaintiffs in this form of action : at least upon an executed consideration, 
 as for use and occupation pf buildings or land, or even *tolls, where the [ *107 ] 
 tenant has held the premises under them, and paid rent {w) . And the 
 London Gas Company may sue in assumpsit for gas supplied, although 
 there was no contract by deed under their seal (x) (2). 
 
 Where there has been express contract, the party injured may sustain 1° general 
 an action of assumpsit, though the breach amount to a trespass (j/~) ; but ^^^^ °""' 
 unless there have been such contract, or the law will, under the circum- tract""' 
 stances, imply a contract, the plaintiff must resort to another form of ac- 
 tion («) (3). Therefore, assumpsit for use and occupation cannot bo 
 supported where the possession is adverse (4) and the relation of landlord 
 and tenant has never subsisted between the parties ; but the plaintiff must 
 declare in ejectment or trespass (a) (5). Nor is assumpsit the proper 
 remedy in the case of a deceitful representation, not embodied in, or no- 
 ticed on the face of, a written contract between the parties ; but the 
 remedy should be case for the fraud (ft). But where the defendant in 
 selling a horse refused to warrant it, and yet said that it was " sound, as 
 far as he knew," it was held, that he was liable in assumpsit, on proof 
 negativing the soundness, and showing that the defendant knew the horse 
 was unsound, and that it was not necessary to declare in case for the de- 
 ceitful representation (c) (6). The cases in which the plaintiff may 
 
 (0 3 & 4 Ann. c. 9. 962, 968; 7 D. & R. 376, 381, S. C. 
 
 («) 5 B. & Aid. 204; 3 B. & Aid. 1; 2 (i) 2 C. & P. 385. , 
 
 Burr. 1216. (j/) 2 Wils. 321; 3 Wils. 354. ' 
 
 (») 6 Vin. Ab. 317, pi. 49; 5 East, 239, {z) 1 Campb. 360; 1 T. R. 386. 
 
 242; see 16 East, 6. (a) 1 T. B. 378, 386, 387; Lord Eaym. 
 
 (w) 2 Lev. 252; 1 Campb. 466. 4 Bingh. 1516; Bao. Ab. Assnmpsit, A ; 2 Stra. 1239; 
 
 75, 287; when not. Id. 283; Mayor of Stafford 1 Campb. 350. 
 
 V. Till, 1 Moore, 260; Mayor of Carmarthen (6) 4 Campb. 22, 144, 169; 12 East, 11. 
 
 V. Lewis, 6 Car. & P. 608; 4 Bar. & Ores. (c) 4 C. & P. 45. 
 
 (1) An action of assumpsit will lie against a corporation upon simple contracts of its au- 
 thorized agents, when acting within the scope of the legitimate purposes of such corporations. 
 Mott V. Hicks, 1 Cowen, 513. 
 
 (2) So a corporation may maintain assumpsit against a person, who has subscribed for stock 
 in the corporation, for the sum so subscribed. Stokes j;. Lebanon and Sparta Turnpike Co. 6 
 Humphrey, 241. See also Gayle v. Cahawba Railroad Co., 8 Alabama, 586; Vestry of Christ's 
 Church V. Simons, 2 Richardson, 368. 
 
 (3) Where A went upon the land of B with his knowledge and assent, and cut and carried 
 away the grass there growing, it was held, that A was not a trespasser, and that B might 
 maintain assumpsit to recover the value of the grass.- Goldthwaite v. Kempton, 13 N. Hamp. 
 449. 
 
 (4) Ryan v. Marsh, 2 Nott & M. 156; Wiggin v. Wiggin, 6 N. Hamp. 298; Rickey «. Huide, 
 6 Ham. 371. See 3 Serg. & Bawle, 501; Wharton v. Fitzgerald, 3 Dall. 503; Polt v. Lesher, 
 1 Yeates, 576; Stooket v. Watkins, 2 Gill & Johns. 827; Featherstonhaugh v. Bradshaw, 1 
 Wend. 134; ante, 106 in note. Nor can it be supported against a person who has entered un- 
 der a contract to purchase, which he has refused to perform, but .he should be sued for mesne 
 profits. Smith v Stewart, 7 Johns. 46; Vandarheavel v. Storrs, 3 Conn. 203; Bell ». Ellis, 1 
 Stew. & Port. 204; Little o. Pearson, 7 Pick. 301; Jones v. Tifton, 2 Dana, 295; Hough v. 
 Birge, 11 Vermont, 190; Doe v. Cochran, 1 Scammon, 209 Nor to recover the value of sand 
 taken from a sand-bar in another State, to which both parties claimed title, and sold by the de- 
 fendant. Baker v. Howell, 6 Serg. & Rawle, 476. 
 
 (5) Vide Cummings v. Noyes, 10 Mass. 435, 436; Brewer d. Craig, 3 Harr. 214; Curtis v. 
 Treat, 8 Shepley, 525; Lloyd v. Hough, 1 Howard, (0. S.) 153; De Young v. Buchannan, ip 
 Gill & Johns. 149. 
 
 (6) Parlin i;. Jlundy, 18 Vermont, 582. 
 
 Ypl. l it 
 
107 OF THE FORMS OF ACTIONS. 
 
 
 waive a tort or trespass and declare in assumpsit, have been already ad- 
 verted to (d) (1). It is not judicious to adopt this form of action where 
 the plaintifif may declare in tort in cases where, by suing ex contractu, the 
 right of set-off may attach (e). And if goods be obtained under a fraud- 
 ulent contract, giving the purchaser a specified credit, although the vendor 
 may disaffirm the contract, and maintain trover before the expiration of 
 the credit, yet he cannot, during the prescribed period, maintain assumpsit 
 for goods sold (/) (2). And where the debt is small, and it is important 
 to avoid the expense and delay of executing a writ of inquiry, it is judi- 
 cious to declare in debt. 
 Peclara- The Declaration in this action must, except in the instances of bills of 
 tion, &c. excijange, promissory notes, and checks, disclose the consideration upon 
 which the contract was founded, the contract itself, whether express or 
 implied, and the breach thereof (g-) (3), and damages should be laid suf- 
 ficient to cover the real amount ; and Reg. Gen. H. T. 4, W. 4, prohibits 
 more than one count upon the same transaction. The most general plea 
 I ^^° J was non assumpsit, that the defendant did not *undertake and promise as 
 alleged by the plaintiff, and under which the defendant might formerly 
 give in evidence most matters of defence. But now the Reg. Gen, H. T. 
 4. W. 4, wholly abolishes the plea of non assumpsit in some actions, and 
 greatly narrows its utility in others, as will be fully shown in the chapter 
 on pleas, where the rules with regard to the form and application of pleas 
 in this action will be fully noticed. 
 f' The judgment in favor of the plaintiff, is, that he recover a specified 
 
 sum, assessed by a jury, or on reference to the master, for his damages ^ 
 which he hath sustained by reason of the defendant's non-performance' of 
 his promises and undertakings ; and for full costs of suit, to which the 
 plaintiff is in all cases entitled in this action, though the damages recover- 
 ed be under 40s., unless the judge certify to take away costs under the 
 statute (A) ; or unless the plaintiff ought to have proceeded for the recovery 
 of the debt in some inferior Court established by virtue of an act of par- 
 liament, which deprives a party suing elsewhere of the right to costs. In 
 
 (d) Ante, 100, 101. (g) Bac. Ab. Assumpsit, F. 
 
 (e) Ibid. (A) 43 Eliz. c. 6. 
 (/) 9B. &C. 59. 
 
 (1) Jones t>. Hoar, 5 Plek. 285; WUlett v. Willett, 3 "Watts, 277; Sanders v. Hamilton, 8 
 Sana, 552; Webster v. Drinkwater, 6 Greenl. 323; Gilmore v. Wilbur, 12 Pick. 120; Putnam 
 V. Wise, 1 Hill, 234; Guthrie v. Wickliffe, 1 Marsh. 83; Miller v Miller, 7 Pick. 133; Centre 
 Twnp. Co. V, Smith, 12 Vermont, 212; Wier v. Church, N. Chip. 95; Morrison v. Rogers, 2 
 Scammon, 317. Where there was a mistake in delivering goods under a contract, and the 
 Tendee fraudulently returned to the -vendor other goods, the vendor vras permitted to waive the 
 tort and recover the price at which his own goods were sold by the fraudulent vendee in assump- 
 sit for money had and received. Gray v. Griffiths, 10 Watts, 431. See O'Conley v. Natchez, 
 I Smedeg & Marsh. 31; Berly v. Taylor, 5 Hill, 577; Sturtevant v. Waterbury, 2 Hall, 449. 
 
 Goods vexe sold to be paid for on delivery, the agent of the owner delivered them without 
 reoeiving payment, it was held that the owner could sustain either trover or assumpsit, King- 
 man V. Hotaling, 25 Wendell, 423; Centre Tump. Co. v. Smith, 12 Vermont, 212. 
 
 _ (2) Goods were sold to be paid for by a note or bill at a future day ; the bill or note is not 
 given; the vendor can sue immediately for the breach of the special agreement, but not as the 
 general count for goods sold and delivered. Hanna v. Mills, 21 Wendell, 90; Johnson v. Smith, 
 Auth. N. P. 60; Tale v. Ooddington, 21 Wendell, 175. A person lending, money on time, upon 
 security of a forged name, is entitled to recover back the money lent immediately. Man and 
 Mech. Bank t>. Gore. 15 Mass. 75; Boardman v. Gore, 15 Mass. 831. Vide Bailey and Boeert 
 V. Freeman, 4 Johns. 283. See Edgerton v. Edgerton, 8 Conn. 6. * s 
 
 ,..,PL,^^* consideration must be truly stated, and proyed as laid, Moore v. Boss. 7 N. Hamo. 
 628; Shelton ». Bruce, 9 Terger, 24, 
 
II. DEBT. 1^8 
 
 i the superior Courts i 
 s under 40s., and th 
 Court (t). 
 
 some cases the superior Courts will stay the proceedings where the debt »• 
 sued for is under 40s., and the plaintiff may recover it in an inferior *»«™"^*- 
 
 II. DEBT. 
 
 The action is so called because it is in legal consideration for the fe* ft. ^mv. 
 covery of a debt (1) eo nomine and in numero ; and though damages are 
 in general awarded for the detention of the debt, yet in most instances 
 they are merely nominal, and are not, as in assumpsit and covenantj the 
 principal object of the suit, and though this distinction may now be con- 
 sidered as jnerely technical, where the contract on which the action is 
 founded is for the payment of money, yet in many instances we shall find 
 it material to be attended to (A). 
 
 Debt is, in some respects, a more extensive remedy for the recovery w 
 of money than assumpsit or covenant : for assumpsit is not sustainable os^t^BAfc, 
 upon a specialty, and covenant does not lie Upon a contract not nndef 
 seal ; whereas debt lies to recover money due upon legal liabilities (?) ; of 
 upon simple contracts, express or implied (m), whether verbal or'written ; 
 and upon contracts under seal (re) ; or of record (o)(2) ; and on statutes 
 by a party grieved, or by common informer ; whenever the demand is fof 
 a sum certain, or is capable of being readily reduced to a certainty (j?)(3.) 
 It may be supported on a contract to pay so much per load for wood, 
 
 (i) Tidd. 9tli ed. 516. (n) Id. Ibid. 
 
 (ft) 1 H. Bl. 560; Bui. N. P. 167; Cowp. (o) Id. Ibid. 
 
 688. (p) Bui. N. P. 167; 3 Lev. 429\ Sir T. 
 
 (I) 1 Hob. 206; Com. Dig. Debt, A. 1, Jones, 104; Ld. Raym. 814; 2 Stra. 1039'; 
 
 (m) Hpb. 206; Bui. N. P. 167; Com. Dig. Dougl. 6; 2 T. R. 29. 
 Debt, A. 9. 
 
 (1) For the ancient law respecting this action, vide 1 Reeve's Hist. E. L. 158, 169{ 2 Reeve's 
 Hist. E. L. 252, 262,329, 333; 3 Reeve's Hist. E.L. 58,65; 5 Pet. S. C. 150. The action of debt 
 is founded upon the contract and assumpsit upon the promise. This is the principal distinctioa 
 between the actions. Simonton v. Barrell, 21 We ndell, 362. 
 
 (2) See Republica v. Lacaze, 2 Dall. 123. A joint action for debt lies against the persons 
 who have bound themselves, by the same writing, to pa; a sum of money, the one with and the 
 other without seal. Oldham v. Hunt, 4 Humph. 332. This is the proper form of aotion On a 
 sealed instrument, where an unliquidated demand, which can readily be reduced to a certain^) 
 is sought to be recovered. Wetumpka Rail Road Co. v. Hill, 7 Alabama, 772. 
 
 (3) V. States v. Colt, 1 Peters, 147. See Long v. Long, 1 Hill, 597; Sims v. Alderson, 8 
 leigh, 479; Home v. Semple, 3 McLean, 150; Mayor &c of N. York v. Butler, 1 Barbour, 325. 
 
 As a general rule debt lies for a sum certain, yet it is the proper remedy for a penalty impotl- 
 ed by a statute, though the amount is uncertain , and is to be fixed by the court between five 
 and fifty dollars. Rockwell u. Ohio, 1 1 Ohio. 130. So where the plaintiff's land has been 
 taken by a turnpike company in order to make their road , and the damages have been assessed 
 
 ■ according to the provisions of the act, debt will lie for the sum assessed, if no other specific 
 remedy were provided by the act. Bigelow d. Cambridge Turn. Co., 7 Mass. 202; Qedney «. 
 Inhabitants of Tewkesbury, 3 Mass. 309, 310; Blanohard o. M. and L. Tump. Coi, 1 Dana, 86. 
 Debt will not lie on a note under seal for the payment of a specified sum •' in Unittd State* 
 bank notes or its branches," it not being for the payment of money. Wilson v. Hickson, 1 
 Blackf, 231. See also to the same effect, Osborne v. Fulton, 1 Blaokf. 234; Harpey v. Levy, 1 
 Black. 294 ; Cassady *. Laughlin, 3 Blackf. 134. But it is intimated in Nelson v. Ford, 5 Ohio* 
 473, that debt or covenant will lie on a sealed bill to pay a certain sum in trade, generally, or in 
 houses, or land, or corn. See Young v. Hawkins, 4 Yerger, 171; Gift v. HbU-, 1 Humph. 480; 
 
 Taylor v. Meek, 4 Blaekf. 38S; Gregory v. Bewley, 5 Pifc&, 318. 
 
*109 OP THE FORMS OF ACTIONS. 
 
 II. DEBT, tjig quantity of which was not then ascertained; 'or on a quantum 
 meruit(^q)(V) for work ; or to pay a proportion of the costs of a suit expect- 
 ed to be incurred (r) or to recover the treble value of tithes not set out 
 according to the statute (s). But it is not sustainable when the demand 
 is rather for unliquidated damages than for money (f) ; unless the perform- 
 ance of the contract were secured by a penalty, in which case debt may 
 be supported for the penalty, and the real demand is to be ascertained ac- 
 cording to the provisions of the 8 <fe 9 W. 3, c. 11. Debt also lies in the 
 detinet for goods, as upon a contract to deliver a quantity of malt ; which 
 action differs from that of detinue in respect of the property in any speci- 
 fic goods, not being necessarily vested in the plaintiff at the time the ac- 
 tion is brought, which is essential in detinue (u). 
 OH BiMPLB On simple contracts and legal liabilities (x) debt lies to recover money 
 ooBimACTs. jgjjj.^ paid, had and received, and due on account stated (y) ; for inter- 
 est due on the loan or forbearance of money (z) ; for work and labor (a) ; 
 for fees (6) ; for goods sold (c) ; and for use and occupation (fi?)(2). It 
 is sustainable for any debt or duty created by common law or custom (e), as 
 on bill of exchange (3), by the payee against the drawer, on the default 
 of the acceptor, or by the drawer against the acceptor of a bill of ex- 
 change, expressed to be for value received (/) ; and by first indorsee 
 against first indorser, who was also the drawer of a bill payable to his own 
 order (g')(4) : and on a promissory note by the payee against the maker, 
 when shown to have been drawn for value received (A) ; but not by or 
 against any other collateral party (J) ; and for tolls, (.5) port duties, and 
 
 (9) It has been doubted whether debt lies (i) Bac. Ab. Debt, A.; 1 Roll. Ab. §98; 
 
 upon a quantum meruit; and of late it has Com. Big. Pleader, 2 W. 11. 
 been usual to omit the quantum meruit count (c) 2 T. R. 28. 
 in debt. (d) 5 Taunt. 25; 6 T. R. 62; 6 East, 348. 
 
 (r) 3 Lev. 429. (c) Com. Dig. Debt, A. 9; Hob. 206. 
 
 (s) Ld. Raym. 682; 1 Roll. Ab. 598, pi. 19. (/) 3 D. & R. 165; 1 B. & C. 674, S. C, 
 
 (0 Ante, 108, ii, (p); Ld. Raym, 1040; 2 (g) 3 Price, 253. 
 Saund. 62 B. (ft) Creswell v. Crisp, 2 Dowl. 635; Lyons 
 
 («) Dyer, 24 b; Com. Dig. Debt, A. 5; Bac. v. Cohen, 3 DowL 243; Priddy v. Henbrey, 1 
 
 Ab. Debt, F.; 3 VVoodd. 103, 104. Barn. & Cres. 674; 3 Dowl. & Ryl. 165; and 
 
 (x) AnU,\Oi. po»«, 2 vol. 6th ed. 251,252. 
 
 (y) Com. Dig. Debt, A; 1 Roll. Ab.598, pi. (i) 1 Taunt. 540; 2 B. & P. 78; Chitty on 
 
 25. Hob. 207. Bills, 7th edit. 428; 2 Campb. 187, n. («); 
 
 («)5T. R. 553. ante, 102, 103. 
 
 (a) Com. Dig. Debt, B. 
 
 (1) An action of debt will lie on a quantum meruit. Smith v. Lowell, 8 Pick. 178; Van Deu- 
 sen V. Blum, 18 Pick. 229, 231 ; Norria v. School Dist. No. 1, in Windsor, 3 Fairf. 293- Thomp- 
 son V. French, 10 Yerger, 452; Mahaffey v. Petty, 1 Kelly, 261. ^ ir 
 
 (2) Davis II. Shoemaker, 1 Rawle, 135; McKean v. Whitney, 3 Denio, 452. Vide 3 Reeve's 
 Hist. El. 64. , 
 
 (3) Vide 1 Cranoh, Appendix, 462, 465; Hollinsworth v. Milton, 8 Leigh, 60; Sharne ». 
 Fowlkes, 7 Humph. 512.. " 
 
 (4) It is said that in Maryland, such an action cannot be sustained. Lindo v Gardner 1 
 Cranch, 348. See also to the same effect. Whiting v. Ring, Minor, 122; Olive t>. Rapier, Cooke, 
 11; Smith V. Segar, 3 Hen. & Mumf 394; Stovell v. Woodson, 2 Mumf. 302; Frierson v. 
 Reeves, 7 Humph. 857. Since the statute making promissory notes negotiable, the legal opera- 
 tion and effect of the tranfer is, that the money due upon the note to the original payee is due 
 f^^f I ! "'"''^f *" '•'« !>sim^ or holder, a,nd that in judgment of law there is privity of con- 
 tract between the maker and indorsee or holder by the terms of the note and the operation of the 
 statute. Accordingly, an action of debt on a promissory note may be maintained by an indorsee 
 ^V^^7:'L.j:^'';^r:i^l^-'''' ""-'■ '''■ S^eBentley.DicUIlk: 
 
 Me^g^'loar^CoTrHitlT:^^^^^^^^^^ ^'^^^''^ *° ''^--- ^-°" "• 
 
 (6) See KeUogg v., The Union Company, 12 Conn. 7. Debt lies against attorneys at law and 
 
II. DEBT. 109 a 
 
 copyhold fines (&) ; and for a quit rent {I). And it lies on an award to in 
 pay money (1), but not if it were to perform any other act, unless there gknekal. 
 were an arbitration bond, in which case the action must be brought there- 
 on (to). It lies also on by-laws (w), for fines and amerciaments (o) (2), 
 on English judgments not of record (p) (3), as well as on such as are of 
 record, on an Irish judgment (g), and on *foreign judgments Qr) (4), and [ *110 ] 
 upon the decree of a Colonial. Court for payment of a balance due on a 
 partnership account (s) (5). Debt clearly lies against a corporation for 
 the recovery of a debt in those cases in which assumpsit may be maintain- 
 ed against them (<), and in all those instances in which they contract by 
 deed to pay money. And even assuming that a corporation cannot in 
 general contract but by deed, the Court will presume on general demurrer 
 that there was a deed, in order to support a count in debt that the cor- 
 poration was " indebted," &c. (m). And it is laid down as a general rule, 
 that debt lies upon every contract in deed or in law {x) (6). And now 
 by express enactment, debt on simple contract is sustainable against an 
 executor in any court of law (j^). 
 
 Debt lies also to recover money due on any specialty, or contract under ohspe- 
 seal to pay money (2), as on single bonds (a), on charter-parties (6), on "^^"^^^f 
 policies of insurance under seal (c) (7), and on bonds conditioned for the 
 payment of money, or for the performance of any other act, by or against 
 the parties thereto and their personal representatives (rf), and against the 
 heir of the obligor, if he be expressly named in the deed, or against a 
 
 (fe) Cora. Dig. Debt. A. 9. (s) 8 B. & C. 16; 2 M. & R. 153, S. C. 
 
 (0 5 Wentw. 152, 153. {t) Ante, 106. 
 
 (m) 2 Saund. 62 n. 5; Burr. 278; Salk. («) 4 B. & C. 962; 7 D. & R. 376. 
 
 72; LordKaym. 715; Str. 928. (a-) Com. Dig. Debt, A. 1; 1 M'Clel. & Y. 
 
 (n) IB. &T. 98. 457. 
 
 (o) Cro. Eliz. 581; Bui. N. P. 167; 1 Hen. (y) 3 & 4 W. 4, c. 42, s. 14. 
 
 Bla. 162; Rep. Temp. Hard. 116; Hob. 206. («) 2 Stra. 1089; 12 East, 583. 
 
 (p) 1 Saund. 92. n. 2. (a) Com. D. A. 4; Str. 1089; 1 T. R. 40. 
 
 \qY 3 Taunt. 85. Assumpsit is also main- (i) Stra. 1089; 1 New Rep. 104. 
 
 tainable, 4 B. & C. 411; 6 D. & R. 471, S. C. (c) Marsh, on Ins. 596; 6G. 1, c. 18,.s. 4. 
 
 (r) 3 East, 221; Doug. 1; 4 Bing. 686; (rf) Com. Dig. Debt, A.; post. vol. ii. 
 ante, 106. 
 
 physicians, for the professional tax. Ohio i). Hibbard, 3 Ohio, 68 ; Same v. Proudfit, ib. : Same 
 ». Gazlay, 5 Ohio, 14. 
 
 (1) Stanley v. Chappel, 8 Cowen, 285. And debt on an award of money will lie without re- 
 gard to the penalty of the bond. Ex parte Wallis, 7 Cowen, 522. 
 
 (2) But debt will not lie on a judgment for damages obtained under the act of the 6th of 
 April, 1802, (Purd. Dig. 621,) " to enable purchasers at sheriff's and coroners' sales to obtain 
 possession." The remedy prescribed by the act can alone be pursued. Moyer v. Kirby, 14 
 Serg.&Rawle, 162. 
 
 (3) Pease v. Howard, 14 Johns. 479. Bennct v. Moody, 2 Hall, 471. 
 
 (4) HubbcU V. Cowdrey, 5 Johns. 132. Andrews o. Montgomery, 19 ib. 162. Mills v. 
 Duryee, 7 Cranch, 481, ante, 106, and note. 
 
 (5) Debt lies on the decree of a court of chancery, in another State, for the payment, by the 
 defendant, of money only, without any acts to be done by the plaintiff. Post v. Neafie, 3 Caines, 
 22. Evans v. Tatem, 9 Serg. & Rawle, 252. Debt lies upon a decree of a court of chancery, 
 fixing the balance of an account between partners. Thrall v. Waller, 13 Vermont, 281. So 
 it lies to recover a sum of money decreed as alimony.- Howard o. Howard, 15 Mass. 196. See 
 Elliott V. Ray, 2 Blaokf. 31 ; Irving v. McLean, 4 Blackf. 52. But see Van Buskirk v. Mulock, 
 8 Barring. 184; Eichelberger v. Smyser, 8 Watts, 181. 
 
 (6) Elder v. Rouse, 15 Wend. 220. Debt is a proper remedy on a bond conditioned for the 
 performance of covenants. Meakings v. O'Chiltree, 5 Porter, 395. 
 
 (7) EUicatt V. The U. States Ins. Company, 8 Gill & Johns. 166. Judgment reversed where 
 au action of atsumpsit had been brought against an Insurance Company on a policy sealed with 
 their corporate seal. Marine Insurance Company of Alexandria v. Toung, 1 Cranch, 832. 
 
*110 OP THE FORMS OP ACTIONS. 
 
 11. DEBT, devisee having legal assets (e), and by the sheriff or his assignee on bail 
 bonds (/) (1), and replevin bonds (g) (2), on leases for rent or penalties, 
 as for plowing up meadow, &c. (A), on annuity, deeds, and on mortgage 
 deeds. An action of debt is not sustainable against the assignee of part 
 of land demised (i)- Debt is the remedy given by the statute (k) to the 
 executor of a tenant in fee or for life,'to recover rent vrhich accrued due 
 to the testator, and to husbands to recover rent which became due to them 
 and their wives, for rents of the wives' freeholds during the life of the 
 wives. Debt is also sustainable for a rent-charge or annuity granted for 
 years, or by the executor of a tenant for life of a rent-charge, or of a 
 tenant pur outre vie after the death of cestui qui vie (Z). But it should 
 seem that no action can be supported at law for the arrears of an annuity, 
 unless it be granted by deed, and there must be an express grant in such 
 deed (m). And debt is not sustainable for the arrears of annuity or yearly 
 rent devised, payable out of lands to A. during the life of B., to whom the 
 
 [ '111 j lands are devised for life, B. paying the *same thereout, so long as the 
 estate of freehold continues (w) ; and this although it is not stated in the 
 declaration that the grantor had a freehold in the premises out of which it 
 was payable, as it must be inferred that he had such an interest, where 
 nothing appears to the contrary (o). The reason assigned is, that the law 
 will not suffer a real injury to be remedied by an action merely personal; 
 neither does the action lie by the statute 8 Anne (p), for that statute applies 
 only to cases of demises from landlord to tenant (jq), the assignee of a 
 rent reserved upon a lease, may maintain debt for the arrears (r). 
 
 ouBEcoBi). This action lies also on records (3), as upon i\ye judgment of a superior 
 or inferior Court of record (5), either generally, or against an executor or 
 administrator, suggesting a devastavit {f). Although the judgment was 
 erroneous, debt lies until it has been reversed (m) ; and the mere circum- 
 stance of the defendant having been rendered, will not bar the action. 
 Where, however, the defendant has been charged in execution on the judg- 
 ment, no action can be supported on the judgment ; although he was ' dis- 
 charged out of custody upon a promise to pay the sum recovered by instal- 
 ments, and which he neglects to do (x) (4). And where the defendant has 
 
 (c) Bac. Ab.Heir; 7 East, 128. (0) 6 Moore, 335; 3 B. & B. 30. C. S. 
 
 (/) 4 Ann. c. 16, 9. 20. (p) 8 Ann. c. 14. 
 
 (g) 11 Geo. 2,0. 19. (q) 4 M. & Sel. 113. 
 
 (A) Com. Dig. Debt, A. 5, B.; 3 Bla. Com. (r) 6 B. & C. 512. 
 
 231; 1 New Rep. 104, 109. (s) Gilb. Debt, 391, 892; Salk. 209; Com. 
 
 (i) Curtis V. Spitely, 1 Bing. N. C. 759; Dig. Debt, A. 2. 
 
 but the landlord must proceed by distress; (J.) 1 Saund. 216, 218,219, n. 7, 8; 6 Mod. 
 
 id. ibid.; or by action of covenant, id.; Long- 306 ; 3 East, 2. 
 
 ham V. King, Cro. Car. 221. (u) 9 Lev. 161; 1 Marsh. 284; 5 Taunt. 
 
 (/c) 82 H. 8,0. 36. . 667. 
 
 (I) 1 Saund. 282, note 1, 276. (x) 4 Burr. 2482; 5 M. & Sel. 103. Qu. 
 
 (m) 2 D. & R. 603; 14 Ves. 491. if the defendant die in execution, id. 104. 
 
 (n) 4 M. & Sel. 113; 2 Saund. 804, note 8. 
 
 (1) It seems to be doubtful whether debt will lie on a bail bond in Massachusetts. See Lane 
 V. Smith, 2 Pick. 281. It has since been decided, that debt does not lie on a bail-bond in Mas- 
 sachusetts. Crane v. Keating, 13 Pick. 889. Pierce v. Eeed, 2 N. Hamp. 359; otherwise in 
 Missouri, Palmer v. Atohinson, 1 Mis. 176. 
 
 (2) Manning v. Pierce, 2 Soammon, 4; Salter ». Richardson, 3 Monroe, 204. 
 
 (3) See Shelburn v. Eldridge, 10 Vermont, 123; Greathouse v. Smith, 3 Soammon. 542': 
 Eames v. Pettis, 4 Vermont, 8-56; Headly v. Boby, 6 Ohio, 621. Debt is the proper form at 
 action to recover a sum found due by the commissioners upon an insolvent estate, ib. But see 
 Eiohelberger v. Symder, 8 Watts, 181. 
 
 (4) But debt on a judgment may be supported where an execution has been levied irreeu- 
 larly, and without producing satis&ctlon. Fish v. Sawyer, 11 Conn. 646. 
 
II. DEBT. Ill 
 
 been discharged out of custody under the Lord's Act, debt is not sustain- n- mbt. 
 able (j^) ; and an action upon a judgment has become less frequent since 
 the statute (z) which precludes the plaintiff from recovering costs in an 
 action on a judgment, unless the Court or one of the judges thereof shall 
 otherwise direct (a). It appears that debt lies upon the judgment (1) 
 or decree of a colonial or foreign Court, &c. (6) (2) in those instances 
 in which assumpsit is maintainable upon them, and which have been al- 
 ready alluded to (c). Debt is often broijght upon a recognizance of 
 bail (rf) (4), and the remedy by scire facias is also frequently adopted. 
 Upon the proceeding by scire facias, the bail are not liable to the costs 
 of the saVe /flcms, unless they appear and plead thereto (e) ; nor are 
 damages for detaining the debt recoverable (/ ) . And it appears there- 
 fore judicious to proceed by action upon the recognizance in ordinary ca- 
 ses (§•). So debt lies upon a statute merchant, though not upon statute 
 staple, because the seal of the party is not affixed to the latter ; but it ^ ^^^ 
 lies *on a recognizance in the nature of a statute staple, to which the seal L ^■'•^ J 
 of the conusor is affixed (A). It lies also on a sheriff's return o£ fieri fe- 
 ci, which is in nature of a record, to recover the money which he has 
 received (i). 
 
 Debt is frequently the remedy on statutes either at the suit of the party O" Stat- 
 grieved, or of a common informer (A;). In some cases it is given to the "'^'' 
 party grieved, by the express words of a statute, as for an escape out of 
 execution (Z) ; though not for an escape out of custody under an attach- 
 ment for non-payment of costs under a decree in equity (m) (4); or 
 against a tenant for double value for not quitting in pursuance of a notice 
 to quit given by his landlord (w). And if a statute prohibit the doing an 
 act under a penalty or forfeiture to be paid to a party grieved, and do 
 not prescribe any mode of recovery, it may be recovered in this form 
 of action (o) (5) ; as treble the value of tithes not duly set forth (p) 
 
 (y) 32 Geo. 2, c. 28, s. 20. Debt, A. 3. 
 
 (z) 43 Geo. 3, c. 46, s. 4. (i) 2 Sannd. 343, 344, note 2; 2 Show. 79; 
 
 (a) When such costs will be allowed, see Hob. 206. 
 
 Tidd. Prao. 9th ed. 969. (fe) Com. Dig. Action on statute, E. ; Bac. 
 
 (J) See 4 B. & Ores. 418; 6 D. & R. 474, Ab. Debt, 8. 
 
 S. C; 3 Taunt. 85; 9 Price, 1. (Z) 1 Rie» 2, c. 12; 1 Saund. 34, 35, 39, 
 
 (c) Jnte, 101. 218; Com. Dig. Debt, A. 
 
 (rf) Post, vol. ii.; Gilb. Debt, 395. (m) Blower v. HoUis, Cromp. & M. 93. 
 
 (e) See 8 & 9 W. 3, c. 11, s. 3; 8 B. &P. (n) 4 Geo. 2, o. 28, s. 1; 1 New Kep. 174. 
 
 14. . (o) 1 Bol. Ab. 598, pi. 18, 19; 1 M. & T. 
 
 (/) 3 Burr. 1719. 457. 
 
 (g) See Tidd, 9th edit. 1100. (p) Id. ibid.; 1 Ld. Eaym. 682; post, vol. 
 
 Ih) 2 Saund. 60, 70; in notis; Com. Dig. ii. 
 
 (1) M'lntyre «. Carruth, 1 Const. Rep. 457; Headley v. Boby, 6 Ham. 527; Carter v. 
 Crews, 2 Porter, 81. Debt lies on a justice's judgment. James v. Henry, 16 Johns, 238, of 
 another state, Cole v. DrisooU, 1 Blaokf. 16. See Johnson v. Hayes, 3 Harrington, 486, 
 
 (2) Jordan v. Robinson, 3 Shepley, 167; M'Intire, v. Caruth, 3 Brevard, 395; Letson v. 
 Wadsworth, 2 Speers, 277. 
 
 (3) Debt lies on a recognizance to the commonwealth. Commonwealth v. Green, 12 Mass. 1. 
 
 (4) Koones v. Maddox, 2 Harr. & Gill. 106. 
 
 (5) Adams v. Woods, 3 Cranoh. 341 ; E.r parte Marquand, 2 Gall, 552. Cushing v. Dill, 
 aSoammon, 461; Israel v. Jacksonville,! Scam. 291, Wherever a, statjite gives a right 
 to recover damages which are ascertained by the act itself, an action of debt lies and is 
 proper, if no specific remedy is provided. Blackburn v. Baker, 7 Porter, 284. Debt lies to re- 
 cover the land damages assessed against a Turnpike under the Statute, no specific remedy be- 
 ing provided therein. Bigelow v. Cambridge Turnpike, 7 Mass. 202; Jefeey v. Blue Hill 
 Turnpike, 10 Mass. 368; Rice v. Barre Turnpike, 4 Pick. 130. But not to recover them against 
 a to'wn, the Statute having provided a specific remedy hy distress in such case. Gedney i>. 
 
112 
 
 OP THE FORMS OF ACTIONS, 
 
 or treble the amount of damages incurred by extortion (9). Where a 
 statute, incorporating a gas company, provided that the expenses of ob- 
 taining the act should be first paid out of the subscriptions, it.was held, 
 that the attornies who obtained the act might recover their costs in an 
 action of debt founded upon the statute (r) (1). On the other hand, 
 upon a new statute, which prescribes a particular remedy, no remedy can 
 be taken but that particular remedy given by the act (2). Therefore no 
 action of debt will lie for a goer's rate («) ; and surveyors of highways 
 cannot maintain debt to recover composition money duly assessed in lieu 
 of statute-duty, the remedy by distress being prescribed by the Acts of 
 Parliament (t). Where a penal statute expressly gives the whole or a 
 part of a penalty to a common informer, and enables him generally to sue 
 for the same, debt is sustainable (u) ; and he need not declare qui tarn 
 unless where a penalty is given for a contempt (x) ; but if there be no 
 express provision enabling an informer to sue, debt cannot be supported 
 in his name for the recovery of the penalty (y). 
 
 In some cases this action is the peculiar remedy, as against a lessee for 
 an apportionment of rent, where he has been evicted from part of the 
 premises by a third person ; though covenant is in such case sustainable 
 [ *113 ] against the assignee of the lessee (z). It is also the only *remedy against 
 
 a devisee of land, for a breach of covenant by the devisor (a). 
 When not Debt, however, is not in any case sustainable, unless the demand be for 
 sustainable ^ sum certain, or for a pecuniary demand which can readily be reduced to 
 a certainty (3), as in the instances before enumerated (/>) ; nor could it be 
 supported against an executor, on a simple contract made with the testator, 
 unless in the Court of Exchequer (c), or in those cases in which the tes- 
 tator, if living, could not have waged his law (d), though if the executor 
 pleaded, and did not demur, he could not afterwards object to the form of 
 action (e) ; and an executor might be sued in debt upon a simple contract 
 
 When the 
 
 peculiar 
 
 remedy. 
 
 (0) 2 Rla. Rep. 1101. 
 
 (r) 4 B. & C. 962; 7 D. & B. 876, S. C. 
 (s) Per Dennison, J., '2 Burr. 1157. 
 (0 1 M'Clel. & Y. 450. 
 (u) Com. Dig. Action, E. 1, 2. 
 
 (1) Id. ibid ; 2 Saund. 374, n. 1; 2: 1 
 Saund. 136, n. 1. 
 
 (y) 5 East, 813, 315; Stra. 828; Bac. Ab. 
 Action, Qui lam, A. 
 (s) 2 East, 579, 580. 
 
 (o) 7 East, 12. 
 (A) Ante, 108, 109. 
 
 (c) 1 New Rep. 293; Plowd. 182; 9 Co. 86 
 b.; 1 Saund. 68, 216, 286; 2 Saund. 74, n. 2; 
 ante, 116, 117. But no third person cin ob- 
 ject; 1 Marsh. 280; 6 Taunt. 665; 3 B. & C. 
 817. 
 
 (d) 1 Saund. 216 a. note 4; 9 Co. 87 b. 
 
 (e) Plowd. 182; 1 Marsh. 72 ; 5 Taunt. 335, 
 665,S. C; 3B. & C. 317. 
 
 Tewksbury, 3 Mass. 307. See Smith v. Drew, 5 Mass. 514. But one penalty can be recovered 
 against a justice of the peace under the "supplement to the act for preventing clandestine 
 marriages," passed the 14th day of February, 1729-80. (Purd. Dig. 540.) Hill v. Williams, 
 12 Serg. & Rawle, 287. Under a penal statute only one penalty is recoverable for one offence or 
 entire transaction. Corporation of New York v. Ordrenan, 12 Johns. 122. If the party has 
 no other right than what is derived from the statute, his remedy also must be under the statute. 
 Almy V. Harris, 2 Johns. 175. 
 
 (1) See Andover Turnpike v. Gould, 6 Mass. 40; Same v. Hay, 7 Mass. 102; Franklin Glass 
 Co. D. White, 14 Mass. 286; Peabody «. Hoyt, 10 Mass. 36; Commissioners v. Harrington 1 
 Blackt 260; Woods v. Pettis, 4 Vermt. 556; Wiley v. Bale, 1 Metcalf, 653. Where the direc- 
 tors of a bank are made by statute responsible for the debts of the bank, debt will lie against 
 them. Falconer v. Campbell, 2 M'Lean, 195. 
 
 (2) Smith V. Drew, 5 Mass. 514; Gedney v. Tewksbury, 3 Mass. 307. Smith v. Woodman, 
 8 Foster, (N. H.) 620. Debt is the proper form of action against a'stockholder of a joint com- 
 pany, by the Charter of which stockholders are liable in their individual capacities for the pay- 
 ment of debts, contracted by the Company, to the Qoqinal amount of Stock held by them re- 
 spectively. Simonson v. Spencer, 15 Wend. 548. 
 
 (8) Little V. Mercer, 9 Missowri, 218. 
 
II. DEBT. 113 
 
 which he had entered into ia his representative capacity (/) ; and now by «• »™»- 
 3 & 4 W. 4, c. 42, s. 14, it is enacted, " that an action of debt on a sim- 
 ple contract shall be maintainable in any Court of common law against any 
 executor or administrator (1). Debt cannot be supported for a debt pay- 
 able by instalments till the whole of them be due (g) (2), though for rent 
 payable quarterly, or otherwise, or for an annuity, or on stipulation to pay 
 £iO on one day, and £10 on another, debt lies on each default (A) ; and 
 even where one sum is payable by instalments, if the payment be secured 
 by a penalty, debt is sustainable for such penalty (i) (3). When the land- 
 lord has accepted rent from the assignee of a lessee, he cannot sustain debt 
 against the lessee or his personal representative, but must proceed by ac- ' 
 tion of covenant on the express contract (A) ; and debt is not sustainable 
 on a collateral contract, as on a promise to pay the debt of another in con- 
 sideration of forbearance, &c. (I) (4), nor against the endorser of a bill or 
 note, or by an indorsee against the acceptor (?») ; and it seems questiona- 
 ble whether it is sustainable in any case upon a note or bill, unless on the 
 face of it it appears that it was given for value received (w). But it may be 
 supported by the drawer against the acceptor of a bill of exchange, payable 
 to the drawer or his order, for value received in goods (o) (5). 
 
 Formerly, when trial by wager of law was in practice, the action of Of Wager 
 assumpsit was preferable to that of debt on simple contract (p). That °*^.'*^,?°^ 
 mode of defence and trial was in general in force *when the debt was due ^uities and 
 on a simple verbal contract (cf) (6), and it might have been adopted (ex- advanta- 
 ges. 
 
 (/•) 5Bing. 200. (Z) Hardr. 486; Com. Dig. Debt. B; 2B. f *114 1 
 
 {g) 1 Hen. Bl. 554; 2 Saund. 353, n. 6; 8 & P. 83; Cro Car. 107, 193; 1 Salk. 23. 
 
 Co. 22a.; Selw. N. P. 53l,n.; an«e,116,n7; (in) 2B.&P. 78. 
 
 Bao. Ab. 669. (n) Creswell v. Crisp, 2 Dowl. 635; Lyons 
 
 (A) Id. ibid. v. Colien, 3 Dowl. 343; ante, 124. 
 
 (t) 8 & 9. Wm. 3, c. 11; Bac. Ab. Debt, (o) 1 B. &,C. 674; 3 D. &R. 165, S. C. 
 
 B; 1 Wil3. 80; Com. Dig. Action, F. (p) 3 Bla. Com. 347. 
 
 {k) JinU, 56; 1 Saund. 241, 242, n. 5; 2 (?) 3 Bla. Com. 347; Barry d. Robinson.l 
 
 Saund. 181, 182, 297, n. 4, 303, n. 5, 306; 1 New Rep. 293; 4 D. $; R. 207; King v. WU- 
 
 Bao. Ab. Debt, D.; Com. Dig. Debt; 4 Taunt, liams, 3 Bar. & Cres. 638. 
 642. 
 
 (1) Debt will lie on an implied promise against an executor having assets. Knapp v. Han- 
 fordi 6 Conn. 170. See Tupper v. Tupper, 3 Ham. 387. 
 
 (2) Fontaine v. Aresta, 2 McLean, 127; Farnham o. Hay, 3 Black£ 167. 
 
 (3) It has been held that where the condition of a bond was for the payment of interest an- 
 nually, and the principal at a distant day, the interest might be recovered before the principal 
 was due, by an action of debt on the bond. Sparks v. Garrigues, 1 Binn. 152. 
 
 (4) Tappan v. Campbell, 9 Yerger, 436; Long ». Long, 1 Hill, 579. But debt was held to 
 lie upon a guaranty in these words, " I guaranty the payment of the within note to A. for value 
 received." Brown v. Bussey, 7 Humph. 573; Hall v. Rogers, 7 Humph. 636. 
 
 (5) See ante, 108, notes. 
 
 An action of debt will lie for the payment of a stipulated sum in property, Snell v- Kirby, 
 3 Mis. 21 ; Dorsey v. Lawrence, Hardin, 508 ; Henry v. Gamble, Minor, 15. But see Watson v. 
 M'Nairy, 1 Bibb. 366; Bruner v. Kelsoe, ib. 487; Mattox v. Craig, ib. 584. • 
 
 A single bond payable in cotton will sustain an action of debt. Ballinger v. Thurston, 4 Con. 
 Ct. 447; Crawford v. Daigle, 2 Virg. Ca. 521 ; Bradford v. Stewart, Minor, 44. 
 
 It is said that debt will not lie on a writing obligatory for the payment of a sum certain in 
 bank notes. Wilson «. Hickson, 1 Blackf. 230; Osborn v. Fulton, ib. 234; Scott v. Connover, 
 1 Halst. 222; Campbell v. Weister, 1 Litt. 30; Sinclair v. Piercy, 6 J. J. Marsh. 63. Ante, 
 108, note. Beirno v. Dunlap, 8 Leigh, 614; Hudspeth v. Gray, 5 Pike, 157; January v. 
 Henry, 2 Munroe, 68; S. C. 3 Munroe, 8; Deberry ti. Darnell, 5 Yerger, 451: Young «. Scott, 
 5 Alabama, 475. ,. . , . 
 
 (6) By the act for the amendment of the law, wager of law is abolished in every case except 
 that of non summons in real actions. Laws N. Y. sess. 36, o. 56, s. 24.— 1 R. L. 526. It still 
 exists as part of the law of Pennsylvania, 1 Binn. 543; and there are other recognitions of its 
 existence to be found in various Acts of Assembly, which provide that in certain actions it shall 
 not be admitted. See 8th sec. of the Act of 18th of Feb. 1785, [habetu coryu«] 2 Sm. Laws, 
 
 Vol. I, la 
 
11^ OP THE FORMS OP ACTIONS. 
 
 H. DEBT, cept in the Exchequer, or when the creditor has become so by legal 
 necessity, as in the case of a debt to a gaoler, or innkeeper, <fec. for fees) 
 (r) ; but of late it was so much disused and discountenanced (s) (1,) that 
 debt had become very frequent, and was preferable in some respects to 
 the action of assumpsit, the judgment therein being final in the first in- 
 stance, and not interlocutory as in assumpsit. And at length the 3 <fe 4 
 W. 4,c. 42, sect. 13, enacts " that no wager of law shall hereafter be 
 allowed." It was once considered that in an action of debt the plaintiff 
 could not in any case recover less than the sum demanded (0; and that if 
 the plaintiff could not, upon the indebilatus or quantum meruit count, prove 
 that he was entitled to recover the precise sum alleged to be due, he must 
 be nonsuited. It is, however, now completely settled, that the plaintiff 
 may, in debt on simple contract, prove and recover less than the sum 
 stated to be due in his declaration (m) (2) ; for the difference is, that 
 where debt is brought upon a covenant to pay a sum certain, a variance 
 in the statement of the sum mentioned in the deed -will vitiate ; but where 
 the deed relates to the matter of fact, there, though the plaintiff demand 
 more than is due, he may enter a remittitur (a;) . 
 
 DecUrni' The declaration in this action, if on simple contract, must show the con- 
 
 *'0- sideration on which the contract was founded, precisely as in assumpsit ; 
 
 \g^ °^' and should state either a legal liability, or an express agreement ; but it 
 must be alleged that the defendant agreed, not that he promised, to pay the 
 debt, (2/). But on specialities, or records, no consideration need be 
 shown, unless where the performance of the consideration constitutes a 
 condition precedent, when performance of such consideration must be 
 averred : and where the action is founded on a deed, it must be declared 
 upon, except in the instance of debt for rent (z). If the declaration go 
 for damages for detention of the sum expressly agreed to be paid, as for 
 interest, the damages at the conclusion must be proportionably increased and 
 not as usual be merely nominal (a). The plea of the general issue to debt on 
 Ispime contracts, or on statutes, or whei-e the deed was only matter of in- 
 ducement, was formerly nil debet. But now, by reg. gen. Hil. T. 4 W. 4, the 
 plea of nil debet is abolished, and it is order ed that in actions of debt on 
 simple contract, other than on bills of exchange and promissory notes, the 
 defendant may plead " that he never was *indebted in manner and form 
 as in the declaration alleged," &c. (6). In debt on specialty, the plea 
 denying the execution of the deed set out in the declaration, is non est 
 factum (c) ; and to debt on record, nul tiel record; and as those pleas 
 
 (r) 3 Bla. Com. 845, 846; 1 Saund. 216 a, (i) Per Holt.C. J., 2 Lord Ravm. 816. 
 
 n. 1; 9 Co. 87 b. • (y) 2T. R. 28, 30; 12 Mod. 611 ; 3 B. & A. 
 
 («) 4 D. & B. 206. 208; 2 Smith, 618; 2B. & P. 78; pott. 
 
 (0 3 Bla. Com. 155; 2 Sir W. Bla. 1221; (z) 1 New Rep. 104. 
 
 2 T. R. 28; Bui. N. P. 171 ; Stra. 1089. (a) Watkins v. Morgan, 6 Car. & P. 661. 
 
 (tt) 1 Hen. Bla. 249, 550; Dongl. 6; 11 (ft) Post, chapter on Pleas. 
 
 East, 62. (c) 2 Lord Baym. 1500. 
 
 275 ; and sect, 9 of the Act of 22d April, 1794, \yice, &c.] 3 Sm. Laws, 182.— 10 Serg. & Bawle, 
 821, 322. — See, however, Childres v. Emory, 8 Wheat. 642, denying the doctrine of Barry v. 
 Eobinson, 1 New, 298. 
 
 (1) In a recent instance, however, a defendant succeeded in forcing the plaintiff to abandon 
 lliB action, by having recourse to it. King v. Williams, 2 Barn. & Cressw. 538. 
 
 (2) Newlin «. Palmer, 11 Serg. & Rawle, 100; United States v. Colt, Peters, 145. Where a 
 penalty of double the value of a specific article, was given by statute to a common informer, it 
 was held that the plaintiff might recover in debt less than the sudr statecl in the declaratioiv 
 
 Pflmn «. Sikmi 1 T*a^ 1Q 
 
 Perrin v. Sikes, 1 Day, 19. 
 
lllj COVENANT. 116 
 
 mer'ely deny the existence of the deed, oi- record, most matters or «• »™»- 
 grounds of defense must now in debt on a deed be specially pleaded. 
 The pleadings in debt will be fully noticed in subsequent parts of the 
 worli.^ The judgment in the plaintiff's favor, which at common law is 
 final, in all cases is, that the plaintiff -recover his debt, and, in general, 
 nominal damages for the detention thereof; and in cases under the 8 & 9 
 W. 3, c. 11, it may also be awarded, that the plaintiff have execution for 
 the damages sustained by the breach of a bond, conditioned for the per- 
 formance of covenants : and the plaintiff, unless in some penal and other 
 particular actions, is in general entitled to full costs of suit, alth'ough the 
 damages recovered be under 40s. (ri) ; unless the judge certify under the 
 statute (e). 
 
 III. COVENANT. 
 
 The rules respecting this action are few and simple. It is a remedy m. 
 provided by law for the recovery of damages for the breach of a cove- oo^EttAKT. 
 nant or contract under seal (§■) (1). It cannot be maintained except "Senerali 
 against a person who, by himself, or some other person acting on his be- 
 half, has executed a deed under seal, or who, under some vei"y peculiar 
 circumstances, which w'ill be noticed hereafter (A), has agreed by deed to 
 do a certain thing (i) (2). In the case of a covenant under seal, an ac- 
 tion of covenant may be supported, whether sucii covenant be contained 
 in a deed-poll or indenture {k) ; or be express or implied hy law from 
 the terms of the deed (V) (3) ; or be for the performance of something implied 
 in futuro, or that something has been done (m). In some cases it is sus- for title, 
 tainable, although the covenant relate to matter in prcesenti, as that the cS'"^" 
 covenantor is seized and hath good title («) : though it is said, that in 
 general covenant will not lie on a contract in prcesenti, as on a covenant 
 to stand seized ; or that a certain horse is *yours ; or shall henceforth be [ *116 ] 
 the property of another (o). It is not essential that the word " cove- 
 nant " should be in the instrument, in order to render the defendant lia- 
 ble in covenant (p) ; nor is it material that the covenantee has not exe. 
 
 (d) Tidd's Prac. 9th ed. 945, 963, 984. What is considered an implied covenant, so 
 
 (e) 43 Eliz. c. 6. as to render this the proper remedy, see 12 
 (s)'2 Lord Baym. 1536; F. N. B. 145; East, 179, 182; 13 East, 63, 71, 74; Piatt on 
 
 Cro. Jao. 506; Com. Dig. Pleader, 2, V. 2, Gov. 46, &c.; Index, /*. Implied Covenant. 
 
 Covenant, A. 1. Covenant on the word "demise" in a lease, 
 
 (A) Post, 118. , 5 B. & Cres. 609; 4 Taunt. 829; 6 Bing. 666; 
 
 (i) 5 B. & C. 602. ante, 51. 
 
 (k) 1 Rol. Ab. 617, pi. 40; Com. -Dig. Gov- (n) 3 Woodd. 85, 86; 2 B. & P. 13; 2 
 
 «nant, A. 1. Saund. 181 b. ; 4 M. & Sel. 53 ; 6 Bing. 656. 
 
 (,1) Com. Dig. Covenant, A. 2; 6 Moore, (o) Plowd. 308; Finch, 49 b.; Com. Dig. 
 
 199, 202, note a.; 1 Bing. 433; 9 B. & C. Covenant, A. 1; Yin. Ab. Covenant, A. pi. 6, 
 
 505; 1 C. & J. 105, S. C. G. 3; Piatt on Gov. 3. 
 
 (m) Com. Dig. Covenant, A. 1; Bao. Ab. (p) 6 Moore, 203. 
 
 Covenant, A.; Plowd. 308; 6 Bing. 666. 
 
 (1) Gale ». Nixon, 6 Cowen, 445; Ludlow v. Wood, 1 Pen. 65; Bilderbaoh v. Ponner, 2 
 Halst. 64; Trible v. Oldham, 6 J. J. Marsh. 137; Vicary v. Moore, 2 Watts, 451; M'Voy v. 
 
 * Wheeler, 6 Porter, 201. 
 
 (2) See Sommerville v. Stephenson, 2 Stewart, 271; Vicary v. Moore, 2 Watts, 451; Eees v. 
 Overbaugh, 6 Cow. 746; Powers v. Ware, 2 Pick. 451; Bassett v. Jordan, 1 Stewart, 352; U. 
 States V. Brown, Paine, 422; Powell v. Clark, 2 Penn. 617; Bell v. Curtis, 1 Pen, 142. 
 
 (3) As to implied covenants of title or warranty, see FroSt v. Raymond, Caincs, 88. 
 Kent V. Welch, 7 Johns. 258; Dorsey v. Jaekman, 1 Serg & Raw.-'.42. Implied covenants may 
 be set forth in the declaration in the same manner as if they were expressed in the instrument. 
 Grannis v. Clark, 8 Cowen, 36 J Barney i). Keith, 6 Wend< 502. 
 
116 
 
 OF THE FORMS OP ACTIONS. 
 
 - HI. 
 
 On what 
 particular 
 deeds and 
 covenants 
 it lies. 
 
 cuted the deed (9). It would be foreign to the present inquiry, relating 
 merely to the application of remedy, to examine into the nature and de- 
 Bcription of the different covenants, which are to be found in the works 
 referred to in the note (r). 
 
 Covenant is the usual remedy upon indentures of apprenticeship, against 
 the master for not instructing his apprentice, or against the party who 
 covenanted for the due service of such apprentice, but it will not lie 
 against an infant apprentice (s) (1). It lies also on articles of agreement 
 under seal (t), or deeds of separate maintenance (u') ; and on covenants 
 in deeds of conveyance, &c. for good title, &c. (x) ; on charter-parties of 
 affreightment (2/) ; on policies of insurance under seal against fire, &c. 
 (;S-) ; and on annuity and mortgage deeds ; though debt in the last in- 
 stances is in general preferable when the demand is for money ; and it 
 seems that covenant lies on a bond, for it proves an agreement (a). 
 
 An action of covenant is also the usual remedy on leases at the suit of 
 the lessee, his executor or assignee, against the lessor, &c. for the breach 
 of a covenant for quiet enjoyment, &c. and by the lessor, &c. against the 
 lessee, for non-payment of rent, not repairing, <fec. 
 
 At common law, upon the death of a lessor seised in fee, his heir might 
 sue for a subsequent breach of a covenant running with the land, although 
 not named in the lease (6) ; and the action of debt lay for the assignee of 
 the reversion for rent, at common law (c) ; but no persons could formerly 
 support an action of covenant, or take advantage of any covenaiit or con- 
 dition, except such as were parties or privies thereto ; and of course no 
 grantee or assignee of any reversion or rent could maintain this form of 
 action. To remedy this the statute 32 Hen. 8, c. 34 (2), gives the as- 
 signee of a reversion the same remedies against the lessee, or his assignee, 
 or their personal representatives, upon covenants running with the land as 
 the lessor or his heir, or their successor, had at common law ; and on the 
 [ 117*] other hand, *such assignee is liable by the statute to an action for a 
 breach of the covenant running with the land, as the lessor, <fec. was at 
 common law (d). An assignee of part of the reversion (e), and the re- 
 mainder-man (/), are within the statute. We have already pbserved, 
 that debt is the remedy ^ven by the 32 Hen. 8, c. 37, to executors of 
 persons who were seized in fee, of for life of property, to recover arrears 
 of rent which accrue due to the testators ; and to husbands, who survive 
 
 on LEASES. 
 
 (g) Post, 119. 
 
 (r) Selw. N.P. Covenant; Com. Dig. Cov- 
 enant, A. 2, 8, i; Bac. Ab. Covenant; Piatt 
 on Gov. 
 
 («) Cro. Car. 179. 
 
 (t) 3 Swanst. 647. 
 
 (u) 2 New Eep. 148. 
 
 (x) 2 Saund. 175, 178, 181; 2 B. &P. 13; 
 8 East, 491. 
 
 (B) 3 East, 288; 1 New Sep. 104; 12 East, 
 179, 578, 583; see 6 Moore, 415. 
 . (3) 6 T. R. 710 ;2 Marsh. 601, n. a. and 6 
 Geo. 1. u. 18; 6 Moore, 199, 202. When the 
 
 directors of an insurance company are not per- 
 sonally liable, 6 Moore, 199, 202, note. 
 
 (a) 1 Ch. Ca. 294; 3 Swanst. 648; 3 Lev. 
 119; Hard. 178; Com. Dig. Covenant, A 2. 
 
 (6) 2 Lev. 92, and see the concluding words 
 of the statute 32 H. 8, c. 34, s. 1. 
 
 (c) 1 Saund. 241, c. 
 
 (d) 8 Bla. Com. 158. See the observations 
 on the Statute, Bac. Abr. Covenant, E. 5; 
 Vin. Ab. Covenant, K. 8. As to the parties 
 to sue and be sued, ante, 16, 48. 
 
 (e) 2 B. & Aid. 105; 4 B. & C. 157. 
 
 (/) 3 M. & Sel. 382. - , 
 
 iV ^•''«F "* ^e"°8ylTania. where the remedy is given by statute, and where an infant can- 
 Rawle 416 ^PP""*'"^™^*^* •>? ^^ instrument under seal. Comm. v. Wiltbank, 10 Serg. & 
 
 (2) Vide Laws N. T. sess. 36. c.'si. B. L. 363. The English statute is in force in Pennsyl- 
 8 Btan *62cf ^^"^^ " ™^'' *° *''® ^"^ °^ England and his grantees. Roberts' Dig. 226. 
 
III. COVENANT. 117 
 
 their wives, to recover rents .which became due in the life-time of the lat- "i- 
 ter, in respect of their freehold property (1). oovenani-. 
 
 Where the demand is for rent or any other liquidated sum, the lessor 
 has an election to proceed in debt, or covenant, against the lessee, unless 
 he has accepted the assignee as his tenant, or his lessee has become bank- 
 rupt, in which case the action of debt is not in general sustainable ; and the 
 lessor can only sue the lessee, after such assignment, in covenant, and then 
 only upon an express covenant, and not upon a covenant in law (^•). On 
 the other hand, as a personal contract cannot be apportioned where there 
 has been an eviction from a part of the land, even by a stranger, the lessee 
 cannot be sued in covenant, but only in debt ;. though a distress may be 
 supported (A). With respect to the assignee of the lessee, the lessor may 
 support debt (2), or covenant, at common law (i) ; and an assignee of a 
 part of the premises may be sued in covenant (Jc) (3) though not in 
 debt (0? and it lies for an apportionment against the assignee of the les- 
 see, in case of a partial eviction by a stranger, though we have seen that 
 it is not in such case sustainable against the lessee (m). 
 
 It is a general rule, as before observed (w), that covenant lies upon 
 an implied covenant, or a covenant in law; as on the word " demise " 
 which amounts, in general, in the absence of an express covenant, to a 
 stipulation for quiet enjoyment during the term (4) but we may remem- 
 ber that such implied covenant ceases with the estate of the covenantor, 
 and will not furnish the lessee with a remedy against the executors of his 
 lessor, if the latter were only tenant for life, and the remainder-man evict 
 the lessee (o). 
 
 Prom the preceding observations, it appears that the action of cove- 
 nant, being for the recovery of damages for the non-performance of a con- 
 tract under seal, differs very materially from the actions of assumpsit and 
 debt. Assumpsit, though for the recovery of damages, is not in general 
 sustainable where the contract was originally under *seal, or where a [ *118 ] 
 deed has been taken in satisfaction (jp) ; and though debt is sustainable 
 upon a simple contract, a specialty, a record, or a statute, yet it lies only 
 for the recovery of a sum of money in numero, and not where the dama- 
 ges are unliquidated and incapable of being reduced by averment to a 
 certainty {q) ; and though, where the object of ,the action of the cove-' 
 nant is the recovery of a ' money demand, the distinction between the 
 terms " damages," and " money in numero," may not on the first view 
 appear substantial, yet we shall find it material to be attended to (r). 
 Covenant and debt are concurrent remedies for the recovery of any 
 
 '{g) Ante, 49; 1 Saund. 241, n. 5; 1 T. R. (m) 2 East, 575; 2 M. &Sel. 277. 
 
 92; Cro. Jao. 523; Cullen, 392, 893, (n) Ante, 113. 
 
 (A) 2 East, 575; 2 M. & Sel. 277. (o) 6 Bing. 656; ante, 58. 
 
 (i) 1 Saund. 241 c. ; 3 Co. 22 b. ; 2 East, (p) Ante, 98, 99. 
 
 680. (g) 3 Lev. 129; Bui. N. P. 167. 
 
 {k) Congham v. King, Cro. Car. 221, cited (r) Rien in arrere is a good plea in debt 
 
 1 Bing. N. C. 758; Sir W.Jo. 245;2East, for rent, butnot in couenaKtj because the lat- 
 
 680. ter action is for damages, Cowp. 588, 689. 
 
 (J!) Curtis V. Spitty, 1 Bing. N. C. 756. 
 
 (1) A warranty of lands, in a deed in fee, is the subject of a personal action of covenant 
 against the executors of the warrantor, in New York and New Jersey. Townsend v. Morris, 6 
 Covr. 128; Chapman v. Holmes, 5 Halst. 20. 
 
 (2) Norton v. Vultee, 1 Hall, 384. 
 
 (3) But see Fulton v. Stewart, 2 Ohio, 216. 
 
 (4) Grannis v. Clark, 8 Cowen, 36. 
 
118 OP THE POEMS OP ACTIONS. 
 
 III. money demand, where there is an express or implied contract in an in- 
 covEaiANT. strument under seal to pay it ; but in general debt is the preferable rem- 
 edy, as in that form of action the judgment is final in the first instance, 
 if the defendant do not plead. 
 When the Covenant is i\\Q peculiar remedy for the non-performance of a contract 
 peculiar or under seal, where the damages are unliquidated, and depend in amount on 
 best reme- tjjg QpjjjiQn of the jury, in which case we have seen that neither debt or 
 ^' assumpsit can be supported (s) (1). It is the proper remedy where an 
 
 entire sum is by deed stipulated to be paid by instalments, and the value 
 is not due, nor the payment secured by a penalty (f) (2). And it is 
 frequently more advisable to proceed in covenant on a lease, &c. for 
 general damages than to declare in debt, for a penalty, securing the per- 
 formance of a covenant ; because, if the party elect to proceed for the 
 penalty, he is precluded from afterwards suing for general damages ; and 
 he cannot, in case of further breaches, recover more than the amount of 
 the penalty, and in many cases before he can issue execution, he must 
 proceed under the statute 8 & 9 W. 3, c. 11 ; whereas if he proceed in 
 covenant for every repeated breach, he may ultimately recover beyond 
 the amount of the penalty (m) (3). And where rent is due upon a lease, 
 and there has also been another breach^ as for not repairing, for which 
 the plaintifi' claims unliquidated damages, covenant is preferable to debt ; 
 because in the former, both the breaches of covenant may be included in 
 one action, and damage for the whole demand may be recovered. 
 When not ^'^ *^® Other hand, covenant cannot in general be supported unless the 
 Bustaina- Contract were under seal, and when it is by parol the plaintiff must pro- 
 ^^^- ceed by action of assumpsit {x) (4). But by special custom in London 
 
 (jj") and Bristol (z), covenant lies, although the contract be not under 
 seal. So against the lessee or patentee of the crown, a covenant may be 
 [ *119 ] supported, although he did not seal the lease, or any *counterpart of the 
 lease, it being matter of record, and the lessee's acceptance of the demise 
 being in such a case as obligatory as an express covenant (rf). A peculiar 
 case is put in Co. Lit. (e) ; viz. that if a lease be made to A. and B. by 
 indenture between the landlord of the one part, and A. B. of the otljer part, 
 
 (s) Ante, 98, 112, 118. B. 146, A.; Com. Dig. London, n. 1. 
 
 («) Com. Dig. Action, P.} 2 Saund. 303, (z) 1 Leon, 2. 
 
 n. b. (d) Cro. Jac. 240, 399, 521; Com. Dig. 
 
 {«) Burr. 1087, 1351;' Lord Raym. 814; Covenant, A. 1; Vin. Ab. Covenant, B. pi. 1 ; 
 
 Dougl. 97 ; 13 East, 347, 348. Piatt on Gov. 9, 10. 
 
 (a:) Ante,. 98, 99. ' (e) 231 a. 
 
 (S) 22 E. 4, 3 a.; Priy. Lond. 149; F. N. 
 
 (1) See Wilson ». Hiokson, 1 Blackf. 231; Osborne v. Fulton, ib. 234; Harper ij. Levy, ib. 
 i294; Coldren «. Miller, ib. 291, cited ante, 108, 109 in note; Hedges v. Gray, 1 Blackf. 216. 
 
 No action but covenant will lie on an instrument under seal, in the words, " Due A. B. $10,48 
 value received, payable in cotton." Fortenbury v. Turnstall, 5 Pike, 263; January v. Henry, 
 2 Monroe, 58. 
 
 (2) Vide Co. Litt. 292; Bac. Abr. Debt, B. Stevens u. Chamberlin, 1 Vermt. 25. S'onteine 
 V. Aresta, 2 Mc Lean, 127. 
 
 (3) So if the instrument by which the party binds himself in a penalty for the performance of 
 a. contract be not under seal, the party complaining of the breach of the contract has his elec- 
 tion to bring debt for the penalty, or cose for the breach of the contract, and with the latter ac- 
 tion may recover damages beyond the amount of the penalty. Dick v. Garkill, 2 Whart..l84. 
 
 (4) Covenant will not lie on the condition in a title bond to convey land. Huddle v. 
 WorthingtoD, 1 Ohio, 423; S. P. Abrams v. Knouts, 4 Ohio, 214. Covenant will not He 
 upon a contract under seal, which has been materially varied by a subsequent parol agreement. 
 The remedy is on the subsequent agreement. M'Voy v. Wheeler, 6 Porter, 201; Bavmond v. 
 Fisher, 6 Missouri, 29. < > • . j 
 
III. COVENANT. 119 
 
 and A. only execute it but B. agree thereto, and enjoy the premises by "'• 
 virtue of the demise, " an action" may be maintained against A. and B. <"'^™*'"'- 
 jointly, upon a covenant therein running with the land, and purporting to 
 to be made by them. This has been supposed to be an authority for the 
 position, that in the above instance an action of covenant may be main- 
 tained against A. and B. (/). But the authorities cited in Co. Lit. (g-) 
 do not support that position ; and it has been disputed, with much ap- 
 pearance of reason, in a recent valuable publication (A). And it would 
 seem that if a lessee by deed-poll assign the term, although in , express 
 terms, " subject to the covenants in the lease," the proper remedy by the 
 lessee against the assignee for not performing the covenants, whereby the 
 lessee was damnified, is an action of assumpsit, not an action of covenant ; 
 the assignee not having executed any deed covenanting to perform the 
 covenants in the lease {f). 
 
 Covenant may be supported, although the covenantee did not sign the 
 indenture (A;) ; and we have seen that in the case of a deed-poll, a stranger 
 to it may sue on a covenant therein to pay him a sum of money, though 
 it is otherwise in the case of a deed inter partes (Z)(l). The right of suit 
 is constituted by the covenantor's execution of the deed ; and in these 
 cases the acceptance of the deed by the covenantee, and his production 
 of it at the trial, sufSciently testify his assent to the contract, if necessary, . 
 to render it binding (m). But it appears to be essential that the party 
 claiming the benefit of the covenant should be named therein as the cove- 
 nantee (m)(2). Where a contract under seal has afterwards been varied 
 in the terms of it by a subsequent parol contract, made on a new considera- 
 tion, such substantial agreement must be the subject of an action of as- 
 sumpsit, and not of covenant (o)(3) ; and it has been holden that covenant 
 cannot be supported against the assignee of the grantor of a rent-charge, 
 though *debt is sustainable against the pernor of the profits (p). In some [ *120 ] 
 cases where the breach of a covenant is misfeasance, the party has an 
 election to proceed by action or covenant, or by action on the case for 
 the tort as against a lessee, either during his term or afterwards for 
 waste (g). 
 
 (/) See 4 Cru. Dig, 393, 8d ed.; Com. 353; Smith «. Eawson, 21 Wendell, 212; 01- 
 
 Dig. Covenant, A. 1; Vin. Ab. Condition, 1. a. cott v. Dunklee, 16 Vermont, 478. 
 2; Dyer, 13 b. pi. 66; 2 Rol. E. 63, 159; 3 (I) Com. Dig. Covenant, A. 1; ante, 2, 3. 
 
 Bulst. 164; Co. Lit. 230 b, n. 1, by Butier; (m) 4 Cruise Dig. 393, 3d edit.; Shep. 
 
 Co. Lit. by Thomas, toI. ii. 229, n. Per Lord Touch. 162. 
 Tenterden, 5 B. & C. 602. • (n) 1' Salk. 197 , Comb. 219, S. C. Sed vide 
 
 {g) Naraely, 38 Edw. 3, 8 a.; 3 Hen. 6, 1 Ld. Kaym. 28; 1 Salk, 214, S. C. See 14 
 
 56 b.; 45 Edw. 11, 12. Ves. 187; 16 id. 454; Flatten Cov. 5. 
 > (A) Piatt on Cot. 10 to 18. (o) jJnie, 103; 1 East, 630; 3 T. R. 596. 
 
 (i) 5 B. & C. 589, 602; 8 D. & B. -368, (,p) 1 Salk. 198; 1 Ld. Raym. 322. 
 
 S. C. Case lies, id. Sed vide 3 C. & P. 462. (?) 2 Bla. Eep. 848, 1111. Sed quart, 
 
 {k) 2 Roll. Ab. 22, Faith, F pi. 2; Lutw. seepos«. 
 305; Com. Dig. Covenant, A. 1; 3 B. & C. 
 
 (1) Berkly v. Hardy, 8 Dowl. & Ryl. 102; Smith v. Emery, 7 Halst. 53. But an action of 
 covenant will not lie against a lessee, or his assigns, for rent, under a lease sealed by the lessor 
 only. Hinsdale v. Humplirey, 15 Conn. 431. 
 
 (2) De Bolle v. The Pennsylvania Ins. Co., 4 Whart. 68. 
 
 »(3) If a person enters into a bond for the performance of certain matters, and afterwards a 
 • parol agreement is made between the parties varying the time of performance, an action cannot 
 be maintained upon the bond for the penalty, but the plaintiff must seek his remedy upon the 
 figreement enlarging the time of performance. Ford ». Campfield, 6 Halst. 327. 
 
120 
 
 III. COVENANT. 
 
 HI. 
 
 COVENAKT, 
 
 Declara- 
 tions and 
 pleadings. 
 
 The rules which affect the form of the pleadings in covenant will be ful- 
 ly considered hereafter. We may here observe generally, that the dec- 
 laration in this action must state that the contract was under seal (»")(1) ; 
 and should usually make a profert thereof, or show some excuse for the 
 omission (s)(2). It is not necessary to state the consideration of the de- 
 fendant's covenant, unless the performance of it constituted a condition 
 precedent, when such performance must be averred (3) ; oi unless a con- 
 sideration be by law necessary ; and even in that case an averment that 
 the defendant, " for the consideration mentioned in the deed," thereby 
 covenanted, will be sufficient on general demurrer, the defendant not crav- 
 ing oyer of, and setting out a deed showing no consideration, &c. (<). 
 Only so much of the deed and covenant should be set forth as is essen- 
 tial to the cause of action ; and each may be stated according to the legal 
 effect, though it is more usual to declare in the words of the deed (4). 
 The breach also may be assigned in the negative of the covenant generally, 
 or according to the legal effect (5). Several breaches may be assigned 
 at common law (m) ; and as the recovery of damages is the object of the 
 suit, a sum sufficient to cover the real amount should be laid at the end of 
 the declaration, as the amount of the damage sustained. 
 
 In covenant there is strictly no plea which can be termed a general is- 
 sue, for non est factum only puts in issue the fact of sealing the deed (6) ; 
 and non infregit conventionem and nil debet, are insufficient pleas (a;) (7) ; 
 and therefore most matters of defence must be pleaded specially (?/) (8). 
 These rules will be fully explained hereafter. The judgment in this ac- 
 tion is, that the plaintiff recover a named sum for his damage which he 
 hath sustained by reason of the breach or breaches of covenant : together 
 
 (r) Aiiie, 118; 2 Ld. Raym. 1536; Com. 
 Dig. Pleader, 2 V. 2; see Piatt on Gov. 6. 
 (s) 3 T. R. 151. 
 (0 3 Ring. 322. 
 (u) Com. Dig. Pleader, 2 V. 2, 3; Com. 
 
 Rep. 1<16. 
 
 (i) Com. Dig. Pleader, 2 V. 4, &o.: 8 T. 
 R. 283; 1 Lev. 183. 
 
 iy) Com. Dig. Pleader, V. 4, kc. 
 
 (1) Smith V. Emery, 7 Halst. Vide Van Santwood v. Sanford, 12 Johns. 179 
 
 (2) Cutts V. United State.s, 1 Gallis. 69. Smith v. Emery, 7 Halst. 73. 
 
 . ,l^\^^''''i?°^,"- ^^y'"""' ^ '""■"''• '^^; Hounsford v. Fisher, Wright, 580; Goodwin v. Lynn, 
 4 Wash. C. C (14; Leonard v. Rates, 1 Blackf. 175; Tinney v. Ashley, 15 Pick. 552; Dakin 
 V. Williams, 11 Wend^6/; Jones v. SummerviUe, 1 Porter, 437; Smith i;. Christmass, 7 Yer- 
 ger, 865; Farham v. Ross, 2 Hall, 167; Thompson v. Gray, 2 Stew. & Porter 60 
 (4) Gates v. Caldwell, 7 Mass. 68. ' ' 
 
 1 ci^^/°*;'*"' '«:J^'>^°'^' 2 Wend. 583 Randel v. Chesapeake & Del. Canal Co., 1 Harrington, 
 151; Breokenridge v. Lee, 3 Bibb. 330; Rickert v. Snyder, i^ Wend 416 
 
 (6) Aon est/ttc/um. is, under a statute of Ohio, a plea of the general issue in Covenant, 
 Granger v. Granger, 6 Ham. 41. Couroier v. Graham, 1 Ohio, 330, so far that a notice of mat- 
 ter in bar, or lu set-off, may be put lu under it, ib. 
 
 The single plea of non est factum admits all the material averments in the declaration. 
 wflT9n^' Stew^'t,? Cowen 474; Thomas «. Wood, 4 Cowen, 173; Cooper v. Watson. 10 
 Wend 202; Barney «^Keith, 6 Wend. 655; Kane ^..Sawyer, 14 Johns. 89, and puts in issue 
 i?fiVB!uf''T 11, ,'' «^1ff,^^'"^'°?J.^ ^«°'^«"' 19*; Norman ^. Wells. 17 Wendell 
 Cowe^ 307 ''■ "'^^P'*"'^' ^ ^'"- ^^^' ^""^"^"S "• Hewitt, 2 Hill, 644; Dale «. Roosevelt, 9 
 
 bar^^ Phl»^? °iZ7 'f Tf ™'J?'"'i''"T '«, "ot «■ general issue, but must be pleaded in 
 Fulton 7 Cowen, n.^ ""' " ^'^""'berger , 4 Dall. 436; Roosevelt .. 
 
 V 'HzI^Tg^}^^ ?r°^"'T. '° *•" ^^T^H' ""'^i'^Per/ormavit is a good plea. Bayley 
 r^Kogera, 1 Greenl. 189; See Champ v. Asdery, 2 Marsh. 246; Raugler rf Morton.' 4 Watts. 
 
 the^nroS?flrformlni°°' Performed" admits all the facts that are well alleged and assumes 
 
 Wf^tf / Mme?i5 ker^Tri nk '?' ^- /* ^o'''^^' 122- See Neave „. Jenkins. 2 Yeates. 
 1"! , Win V. mmer, 15 Serg. & R. 105; Bryant v. Smithson, 3 Stew. 339. 
 
IV. DETINUE. 120a 
 
 with full costs of suit, to which the plaintiff is in general entitled, although i»- 
 the damages recovered be under 40s (z) unless the judge certify under "o^^^^™- 
 the statute of Bli2'.(a). 
 
 «IV. DETINUE. , [*121] 
 
 The action of detinue is the only remedy by suit at law for the recovery iv. 
 of a personal chattel in specie, except in those instances where the party "ehnoe. 
 can obtain possession by replevying the same, and by action of replev- 
 in (6). In trespass, or trover, for taking or detaining goods, or in as- 
 sumpsit for not delivering them, damages only can be recovered. 
 
 This is an action somewhat peculiar in its nature, and it may be difiicult 
 to decide whether it should be classed amongst forms of actions ex con- 
 tractu, or should be ranked with actions ex delicto. The right to join deti- 
 nue with debt (c), and to sue in detinue for not delivering goods in pur- 
 suance of the terms of a bailment to the defendant («?), seem to afford 
 ground for considering it rather as an action ex contractu (1) than an ac- 
 tion of tort. On the other hand, it seems that detinue lies although the 
 defendant wrongfully became the possessor thereof in the first instance,' 
 without relation to any contract (e). And it has recently been considered 
 as an action for tort, the gist of the action not being the breach of a con- 
 tract, but the wrongful detainer, for which reason, although a declaration 
 in detinue has stated a bailment to the defendant, and his engagement to 
 re-deliver on request, and the defendant has pleaded that the bailment 
 was as a security for a loan, the plaintiff may, without being guilty of a 
 departure, reply that he tendered the debt, and that the defendant after- 
 wards wrongfully withheld the goods (/). Since the 3 & 4 W. 4, c. 42, 
 s. 13, abolished wager of law, this action has become more frequent {g). 
 
 This action may be considered, 1st, with reference to the nature of the j^j j.^, 
 thing to be recovered ; 2dly, the plaintiff's interest therein ; 3dly, the in- what 
 juiy ; 4thly, the pleadings ; 5thly, the judgment. property it 
 
 This action is only sustainable for the recovery of a specific chattel, and ^'"' 
 not for real property (A). The goods for which it is brought must be dis- 
 tinguishable from other property, and their identity ascertainable by some 
 certain means, so that if the plaintiff recover, the sheriff may be able to 
 deliver the goods to him ; thus it lies for a horse, a cow, or money in a 
 bag : but for money or corn, &c. not in a bag, or chest, or *othe]:wise dis- [ *122 ] 
 tinguishable from property of the same description, detinue cannot be sup- 
 
 (s) Tidd, 9th ed. 945, 963, 977, 978. that in detinue the value of the goods is unli- 
 
 (a) 43 Eliz. c. 6; Tidd, 6th ed. 952, 953, quidated, and the claim is not reduced to a 
 
 964. sufficiently liquidated amount to render the 
 
 (A) 3 Bla. Com. 146, 152; Willes, 120; Co. application of the law of set-pflf possible. 
 
 Lit. 296 b; Com. Dig. Detinue, A. (/) Geldstone v. Hewett, 1 Cromp. & Jerv. 
 
 (c) 2 Saund. 117 b. 565; 1 Tyr. 450, S. C. 
 
 (rf) Post, 124. {g) See before, Barry v. Robinson, New 
 
 (e) Post, 122. It is also clear, that a set- Bep. 295; King v. Williams, 3 Bar. & Cres. 
 
 off is not available in this form of action. But. 638. 
 
 N. P. 181. But this may be on the ground (A) Cro. Jac. 39. 
 
 (1) This is certainly confirmed by the history of the action, from which it will appear that 
 detinue was originally no other than an action of debt in the detinet, instead of the debt. As 
 to which, as well as the ancient law respecting this action, vide 2 Beeve's Hist. £, I^. 261, 8^3, 
 886; 8 Keeve'8 Hist. E. L. 66, 74. 
 
 YOI,. I, 19 
 
122 OP THE FORMS OP ACTIONS. 
 
 ry- ported (i). It lies for the recovery of charters and title-deeds, the prop- 
 DEniTOE. gj.jy. jj^ -vY-hich generally accompanies the title to the land to which they 
 relate (A). And it is sustainable upon a contract for not delivering a 
 specific chattel in pursuance of a bailment or other contract {I) ; but to 
 support this action, the property in some particular chattel must be vested 
 in the plaintiff; and therefore assumpsit, or debt in the detinet, is the only 
 ,, remedy for the non-delivery of corn, &c. sold, where no specific corn was 
 contracted for (m). 
 2cUy. The A person who has the absolute or general property in certain specific 
 plaintiff's goods, and the right to the immediate possession thereof, may support this 
 mterest, g^g^^ioji^ although he has never had the actual possession ; therefore an heir 
 may maintain detinue for an heir-loom ; and if goods be delivered to A. 
 to deliver to B., the latter may support this action, the property being 
 vested in him by the delivery to his use (n). Biit if the plaintiff have 
 not the right to the immediate possession of the goods, and his interest be 
 in reversion, he cannot support detinue, trover or trespass (o). And it 
 seems to be a general rule, that the plaintiff must have a general or special 
 property in the goods, at the time the action was commenced, in order to 
 maintain detinue (jp). A person who has only a special property, as a 
 bailee, &c. may also support this action, where he delivered the goods to 
 the defendant, or they were taken out of such bailee's custody (g'). It is 
 said, that if a person detain the goods of a woman, which came to his 
 hands before her marriage, the husband must alone bring this action, be- 
 cause the property is in him alone at the time of the action brought (r). 
 And an heir who is entitled to an estate per autre vie, as special occupant, 
 may in this action recover the title-deeds relating to the estate (s). If 
 the owner of an estate deliver the title-deeds to the bailee, and then con- 
 vey away the estate, the action for the detention of the deeds should be, 
 brougjit in the name of the new proprietor of the property (f). 
 _8dly. The The gist of this action is the wrongful detainer, and not the original 
 '(?^°J|g -1 tafeing (m). It lies against any person who has the actual possession of 
 l ^^° J the chattel, and who acquired it by lawful means, as either *by bailment, 
 delivery, or finding (x). It is a common doctrine in the books, that this 
 action cannot :be supported, if the defendant took the goods tortioUsly (jf) ; 
 an opinion which appears to be founded on the judgment of Brian, C. J., 
 who held {z) that detinue could not in such case be supported ; on this 
 fallacious reasoning, that by the trespass the property of the plaintiff was 
 divested, and consequently that the property in the chattel was not vested 
 in the plaintiff at the time of the commencement of his action (a). But 
 
 y) Com. Dig. Detinue, B.C.; Co.Lit.286b; («) 3 Bla. Com. 152; Co. Lit. 286 b;-2 
 
 3 Bla. Com. 152; Bulst. 808; Moore, 394. Bulst. 308; Geldstone «. Hewitt, 1 Cromp. & 
 (fr) 4 T. R. 229, 232. Jerv. 565; 1 Tyr. 460, S C 
 
 (0 Fltz. N. B. 138; WiUeg, 120; 3 Bla. (x) Willes,118; Co. Lit. 286 b; Fit?. N. 
 
 Com, 152. B. 138, E.; Bao.Ab. Detinue, 
 
 (m) 8 Woodd 104; 1 Dyer, 24 b. (y) 6 H. 7, 9 : 2 Bla. Com. 152; Bro. Ab. 
 
 (n) 2Saund.47anote; lBro.Ab. Detmue, Detinue, pi. 36, 53; Com Die Detinue D- 
 
 pi. 80, 46; 1 Rol. Ab. 606; Com. Dig. Detinue. Vin. Ab. Detinue B. 2!pl ^TrS^srY. pU 
 
 1o1 ^T«"<J- ^V- ^™- ^''^- 824; Selw. N. P. Detibue, L 
 
 (V-\ d Rin^ inft o*^"; ^^'^' °°** ^5 ^"' see 4tli edit. 636, note 
 
 (2 Rrn A^;^ ;■ 1 a A A^v. . ?r' ^*'' *•'''• 668, note 3. In equity. sU 10 
 
 (9) Bro. Ab. Detinue; 1 Saund. 47 b, c, d; Ves. 163. - ^ J" 
 
 4 Bing. 111. (2) 6 H 7 9 
 
 temo^H,i?dw?20°''"'"'^^- ^'^''^•^'■^V. (a)^n.l\i. Lord Kenyon, 0. J. in 1 
 
 U\ 4 T R 2M 9^1 ^J^'' ^°^' 1°8. observed upon this doctrine of 
 
 (0 See 4 Bing 106 ^'°^^'^ '"'°« *''"'''' ^^ " "^P"""*- 
 
IV. DETINUE. i23r 
 
 It IS observable, that Vavasor, J., in the same case, was of different opin- «•, 
 ion, and the notion that the property can be changed by the trespass ap- *■*'**«> 
 pears unfounded, for though a trespasser . die possessed, the property is 
 not thereby altered (6) ; and it is a principle of law, that no person can 
 avail himself of his own wrong. It has been decided that if goods, &c. 
 taken away continue in specie in the hands of the executor of the wroiig- 
 doer, replevin or detinue may be supported against the executor (c). In 
 pleading it. is usual to state that the defendant acquired the goods by find- 
 ing, (except where he is declared against as a bailee) ; yet that allega*' 
 tion is not traversable («£) ; and, as observed in Kettle v. Broomsell (e), 
 if detinue could not be supported because the original taking was tortious, 
 a person might be greatly injured, and have no adequate remedy ; for in 
 trover damages only can be recovered, and the thing detained may be of 
 such a description that a judgment merely for damages would be an ihad^ 
 equate satisfaction (/). Detinue cannot be supported against a pSrsoti' 
 who never had the possession of the goods ; as against an executor on a 
 bailment to the testator, unless the goods came to the possession of the 
 executor (g-) (1) ; nor does it lie against a bailee, if before demand he 
 lose them by accident (A) ; though if he wrongfully deliver the goods' to 
 another, he will continue liable (J). And it seems that if the defendant 
 represent that he has the goods, and thereby induce the owner to bring 
 the action against him, he is liable, although it does not appear th^t he 
 had the general controlling power over the goods Qe). If goods be de- 
 livered to a feme before her marriage, and afterwards detained, the ac- 
 tion may *be brought against husband and' wife (/), but if the bailment [ *124 1 
 were to the husband and wife after marriage, it is said that the husband 
 must be sued alone (m). If an infant have botight goods, alid oil apijili- 
 cation for payment he refuse to pay on the ground of his infancy, ahd Wf 
 of the goods remain in specie, they should be demanded, and afterwards 
 the prudent course will be to declare in detinue for the goods, with a 
 count in debt for goods sold and delivered, and at least on the former 
 the plaintiff would recbvel-, should the defendant plead infancy to the lat- 
 ter (n). 
 
 With respect to the Pleadings va. this action, more certainty is necessa- the plead* 
 ry in the description of the chattels than in an action of ti-over or i-eple- ""8*1 &«v 
 vin (o) ; but it is not necessary to state th6 date of a deed (p), and if 
 the action be brought for several articles, the value of each need not be 
 stated separately in the declaration, though the jury should sever the 
 
 (b) Com. Dig. Bien, E.; Selw. Cetihue; (g) Bro. Detinue. 19; 2 Bulst. 803; tupra 
 ante, 89, 90. note (c); 
 
 (c) Bro. Ab. Detinue, pi. 19. Por a con- (A) Bro. Detinue* pi. 1* 33, 40. 
 
 vereion by a testator, trocer would be the rem- (i) Id. and pi, 2, 34; 2 B. & Aid. 703; 
 
 «dy against bis executor, to whose hands the Peake, C. N. P. 42. 
 
 goods did not come, see 1 Saund. 216, 217, n. (,k) 3 B. & C. 136. 
 
 (d) Doe. Plac. 124; Bro. Ab. Detinue, pi. {I) Co. Lit. 351 b. 
 
 50; 1 New Kep. 140; Jent:. 2 Cent, p. 78. (m) 8 Bulst. 308; 88 Ed. 3, fo. 1; ste tfnfej 
 
 (e) Willes, 120. 105, 106. 
 
 (/) See also Cro. EHz. 824; Com. Dig. Ao- (n) Supra, n. (c). 
 tion, M. 6; 27 H. 8, 22; Vin. Ab. Detinue D. (o) 2 Saund. 74 b; Co. Lit. 286 b. 
 5, pi. 62. (p) Bac. Ab. Detinue, B. ; 1 Wils. 116i 
 
 (1) The plea of non detinet by an executor is a bad plea tp a , declaration on a judgment 
 against his testator; and being shown to be false, will, on motion, be struck out with oostn 
 Ames v. Webber, iO Wend; 624. 
 
]^24 OP THE F0BM8 OF ACTIONS. 
 
 IT- value of each by their verdict {q). In the case of a special bailment it 
 DEiiBCB. jg proper to declare, at least in one count, on the bailment (r) ; and to 
 lay a special request (s) : but in other cases it is sufficient to declare up- 
 on the supposed finding, which we have seen is not traversable (<)■ And 
 the plaintiff may declare on a bailment to re-deliver on request, and yet 
 in his replication rely on a different bailment (m). 
 
 The Reg. Gen. Hil. Term, 4 W. 4, r. III., order that in detinue the 
 plea of non detinet shall operate as a denial of the detention of the goods 
 by the defendant, but not of the plaintiff's property therein, and that no 
 other defense than such denial shall be admissible under that plea, conse- 
 quently the defendant must plead specially almost every ground of de- 
 fense, as that the goods were pawned to him for money remaining unpaid 
 (jf) ; and lie must also plead specially any other description of lien (z). 
 
 The nature of this action requires that the verdict and judgment be 
 such that a specific remedy may be had for recovery of the goods detain- 
 ed, or a satisfaction in value for each several parcel, in case they, or 
 either of them, .cannot be returned ; and therefore, where the action is 
 for several chattels the jury ought by their verdict to assess the value of 
 each separately (a) ; and if the jury neglect to find the value, the omis- 
 [ *125] sion cannot be supplied by writ of inquiry (i). The * judgment is in the 
 alternative, that the plaintiff do recover the goods, or the value thereof, 
 if he cannot have the goods themselves, and his damages for the deten- 
 tion and his full costs of suit (c). This action, before the 3 & 4 W. 4, 
 c. 42, s. 13, abolishing wager of law in all cases, was in most cases sub- 
 ject to wager of law, on which account it was not much in use ; but now 
 it is frequently adopted ; and it is a very advantageous remedy, especially 
 where it is material to embrace in the same, action a count in debt for a 
 money demand as due upon a contract. 
 
 OP ACTIONS IN FORM EX DELICTO. 
 
 lATTOK or Personal actions in form ex delicto, and which are principally*for the 
 K^DHMio redress of wrongs unconnected with contract, are case, trover {d), re- 
 plevin, and trespass vi et armis. Mixed actions are ejectment, waste, &c. 
 Before we consider the application of these remedies, it is advisable to 
 take a concise view of the nature of the different injuries ex delicto, be- 
 cause they in general govern the form of the action. Thus, if the injury 
 \ie forcible, and occasioned immediately by the act of the defendant, tres- 
 pass vi et armis is the proper remedy ; but if the injury be not in legal 
 contemplation /orctAte, or not direct and immediate on the act done, but 
 only consequential, then the remedy is by action on the case (e) ; and there 
 
 (9) 2 Bla. Rep. 853; Jenk. 2 Cent. 112; (a) 2 Bla. Rep. 854; 3 H. 6, 43 a; Jenk. 2 
 
 Bui. N. P. 51 a. cent. 112. 
 
 (r) 1 New Kep. 146. (6) ]0 Co. 119 b; Salk. 206. 
 
 ^^M^il'^'-^^^"- „ (c) Cro.Jac. 682, 688; Tidd'3 Forms, 888. 
 
 (<) 1 New Rep. 140; 4 T. R. 329; WiUes, Townsbend's Judgment, 1 Book, 844, 2 Book. 
 
 , ^ r ij . ^ ^2' 8^' 8*> 85; Astoi/s Ent. 202; 2 Keilw. 
 
 («) Geldstone v. Hewitt, 1 Tyr. 445; 1 64. 
 
 'Z< r ^'f^^ht ^- ("^^ Trovir, is only a breach of actions .up- 
 
 I \ ii / on the case. Detinue has been already noticed 
 
 ■uW /if^^'^er 0. M'Gowen, Sittings after as an action ex contractu,, ante, 120, 121 : but 
 
 M.T. 3Geo.4. Per Abbott, 0. J., and per see id. note. . ^,o 
 
 Pl^M " * ^"'^' ■^^^' *°^ '""'• ^''*P'*' "" ^^^ 8Bast,693; 2 New Rep. 117,446. 
 
EX DELICTO. 125 
 
 are other points relating to the nature of injuries, which, as they affect the natube o» 
 form of the action, it is material to ascertain. i injuries 
 
 Injuries ex delicto are in legal consideration committed with force, as 
 assaults and batteries, &c., or without force, as slander, &c. (/). They 
 are also either immediate and direct or mediate and consequential. It is 
 frequently difficult to determine when the injury is to be considered forci- 
 ble or not, and when immediate and consequential, and therefore when 
 trespass or case is the proper remedy (1). 
 
 Force is, in legal consideration, of two descriptions, either implied by When for- 
 law, or actoa^ ; force is implied in every trespass, g'ware clausumf regit (g"). "'•'l^o' 
 The distinction is material, and is thus put im Salkeld : " If one enter °° ' 
 into my ground, I must request him to depart, before I can lay hands on 
 him to turn him out ; for every impositio manuum is an assault and bat" 
 tery, which cannot be justified upon the account of breaking the close in 
 law\ without a previous request to depart : the other is in actual force, as 
 in burglary, or breaking open a door *or gate, and in that case it is lawful [ *126 ] 
 to oppose force to force ; or if one break down the gate and come into my 
 close vi et arm,is, I need not request him to be gone, but may lay hands 
 on him immediately ; so if one comes forcibly and take away my goods, I 
 may immediately oppose him, for there is no time to make a request" (A). 
 In the case of false imprisonment also force is implied (i). And the law 
 implies force where a wife, daughter, or servant, has been enticed away or 
 debauched, though in fact they consented, the law considering them in- 
 capable of consenting ; and therefore in such case trespass may be sup^- 
 ported, though case for the consequence of the wrong has, till of late, 
 been the more usual form of declaration (A) (2). The degree of violence 
 with which the act is done, is not material as far as regards the form of 
 action, for if a log were put down in the most quiet way on a man's foot, 
 the action would be trespass ; but if thrown into the road with whatever 
 violence, and one afterwards fell over it, it would be case and not trespass 
 (J). And trespass is the remedy where rubbish is laid so near my wall 
 that the natural consequence is, that some of it rolls against and comes in 
 contact therewith (m). With respect to injuries, to rights of property 
 not tangible, such as reputation and health, and real property incorporeal, 
 
 (/) 3 Bla. Com. 118, 898, 399. (k) 3 Wils. 18, Fitz, N. B. 89. 0.; 5T. R. 
 
 (g) 2 Salk. 641. Co. Lit. 257 b. 161 b. 162 a; 861; 6 Dast, 387; 3 Bla. Com. 140. Aocord- 
 
 1 Saund. 81, 140, n. 4, 8 T. K. >8; Bao. ing to 2 New Rep. 476, trespass, seems now to 
 
 Ab. Trespass. be the proper form, see 2 Stark. R. 495. 
 
 (A) 2 Salk. 641; 8 T. R. 78, 357. (I) Per Le Blanc, J., 3 East, 602; 1 Stra. 
 
 (t) But an imprisonment does not impliedly 635; 5 T. R. 649. 
 
 and necessarily include & battery, 1 New Rep. (m) 9B. &C. 591. 
 265. 
 
 (1) The distinction between trespass and case is in effect broken down by statute in Massa- 
 chusetts. So the distinction between trespass and trespass on the case has been abolished in 
 Maine by statute. Welch v. Whittemore, 25 Maine, 86; Leathers v. Carr, llShepIey, 851. 
 
 (2) Parker v. Elliot, 6 Munf. 587; Gilmer, 33; Van Horn v. Freeman, 1 Halst, 322; Haney 
 w.Townsend, 1 M'Cord, 207; Ram v. Rank, 3 Serg. & R. 215; Clough v. Tenney, 5 Greenl. 
 446. In this last case it was held that case was the only remedy for a father where the injury 
 was done, in the house of another. See Jones v. TiVer, 4 Litt. 25. Case lies for criminal con- 
 Tersation with the plaintiff's wife. Van Vacter v. McKillip, 7 Blackf. 578. In trespass de 
 bonis asportaiis, no actual force is necessary to be proved. — Gibbs v. Chase, 10. Mass. 124. It 
 lies for. levying upon the property of the plaintiff under an execution against another, and 
 requiring the engagement of a receiptor that the property shall be forthcoming, or the amount 
 of the execution paid, although there has been no removal of the property, and the receiptor 
 permits the party to remain in possession, and to dispose of it as bis own. Phillips v. Hall, 8 
 Wend. 610. 
 
126 OP THE FORMS OF ACTIONS. 
 
 NATDBE ot as the right of way, common, &c. ; as the matter or property injured can* 
 iNURiEs EX jjQj ^Q affected immediately by any substance, the injuries thereto, however 
 BBuoio. jjjg^igYolent and however contrived, cannot be considered as committed 
 
 with force (n). ■;, ;, e ^■u^ e 
 
 In general a mere nonfeasance cannot be considered as torcibie, tor 
 where there has been no act, there cannot be force, as in the case of a 
 neglect to take away tithes (o), or a mere detention of goods without an 
 unlawful taking (p), or the neglect to repair the banks of a river whereby 
 the plaintiff's land was overflowed (q), for neglect to re-deliver a beast 
 distrained damage feasant, when sufiScient amends were tendered before 
 the beast was impounded (r). 
 
 When it is material to rfely upon actual force in pleading, as in the case 
 of a forcible entry, the words " manu forti" or with " strong hand," 
 should be adopted (s) ; but in other cases the words " vi et armis," or 
 with force and arms, are suflicient (<). 
 f «H 07 T -A-n injury is considered as immediate when the act complained of Htsetf, 
 When im- ^"<^ "°t merely a consequence of that act, occasions the injury. Thus if 
 mediate or a blow be given by one to another (1), or he drive a carriage and horses 
 consequen- against him or his property (m) (2), or if he pour water on another person 
 *'*^" or his land (,<c), or do any act thereon (^), or if a wild beast or other dan- 
 
 gerous thing be turned out or put in motion, and mischief immediately en- 
 sue {z), or if a log be thrown into a highway, and in the act of throwing 
 or falling, hit another, or if a party, as just observed, lay rubbish so near 
 the plaintiff's wall that the necessary or natural consequence is, that some 
 of it will roll, and it accordingly comes against the wall (a), the injury is 
 immediate, and trespass is the remedy (6). And where a lighted squib 
 was thrown in a market-place, and afterwards thrown about by others in 
 self-defense, and ultimately hurt the plaintiff, the injury was considered as 
 the immediate act of the first thrower (3), and a trespass ; the new direc 
 tion and new force given to it by the other person not being a new tres^ 
 pass, but merely a continuation of the original force (c). It is a direct 
 trespass to injure the person of another by driving a carriage against the 
 carriage wherein such person is sitting, although the last mentioned car- 
 
 (ra) 8 Bla. Com. 122, 123. 81, n. 1. 
 
 (0) 1 B. & P. 476 i Ld. Raym. 188. («) 3 East, 593; 1 Campb. 497; 2 Campb. 
 (p) 3 Saund. 42 k. 1. 465. 
 
 (?) Bro. Ab. Acton Bur le Case, pi. 36 j '{x) 2 Ld. Raym. 1408. 
 
 Fits. N. B. 935 Ba«. Ab. Trespass. (y) 1 Ld. Raym. 188. 
 
 (r) 8 Co. 41. (z) 3 East, 696. 
 
 (s) 8 T. R. 357, 378i (a) 9 B. & C. 591. 
 
 it) Id^ ibid. But the omission of the words (4) 1 Stra. 636; 5T. R. 609. 
 
 viet armis, is not objectionable on general (c) 3 Wila. 403 ; 2 Bl. R. 892 ; S. T. R. 190. 
 demurrer, and is aided by verdict. 1 Saund. 
 
 (1) Ream o. Bank, 3 Serg. & Rawle, 215; Parker v. EUiotte, Gilm. 33; Martin v. Payne, 
 9 Johns. 387 ; Lyon o. Hamilton, Spear v. Patterson, Zurtman v. Miller, cited 3 Serg. & Rawle, 
 216; Mercer v. Walmsleyj 6 Harr. & Johns. 27; Vaughan v. Rhodes, 2M'Cord, 227. Case, 
 and not trespass, is the proper form of action for debauching the daughter of the plaintiff where 
 the injury was done in the house of another. Clough v. Tenny , 6 Qreenl. 446. 
 
 (2) Vide Taylor v. Rainbow, 2 Hen. & Mun. 423; Rappalyea 11. Hulse, 7 Halst. 257. Tres- 
 pass lies for a direct and violent injury to personal property whether the act be done inten- 
 tionally or through negligence. Sohuer v. Veeder, 7 Blackf. 342. 
 
 (3) So when the defendant by discharging a gun frightened the plaintiff's horse, who ran 
 away and broke his carriage, trespass was held to be the proper remedy. Cole v. Fisher, 11 
 Mmb. 187. Trespass is the proper remedy for beating a drum in the highway, where a wagon 
 and team are passing, by which the horses are frightened, and run away and injure the Waeon. 
 Louba ». HufflSr, 1-Dev. 186. See Childress ». Yourie, 1 Meigs, 468. 
 
EX DELICTO. 127 
 
 riago be not the property of, nor in the possession of the person iniured ; nature of 
 
 -,, ...... _. -i. '. •> . INJUEIES 
 
 EX DELICTO 
 
 and where the defendant drove his gig against another chaise, whereby '^■""^'^^ 
 
 the plaintiff 's wife was much hurt and injured, it was held, that an action 
 at the suit of the husband and wife was properly brought in trespass {d). 
 And where the defendant driving his carriage on the wrong side of a 
 road, when it was dark, by accident drove against the plaintiff 's curricle, 
 it was holden that the injury which the plaintiff has sustained, having been 
 immediate, from the act of driving by the defendant, trespass might be 
 maintained (e) (1). Case must be adopted where the defendant's ser- 
 vant, and not the defendant personally, caused the injury by his careless- 
 ness, &c. (/) (3). 
 
 But where the damage or injury ensued not directly from the act com- 
 plained of, it is termed consequential or mediate, and cannot amount to a 
 trespass. Thus, in the instance just stated, if a log, in the act of being 
 thrown into the highway, hit another, the injury is immediate ; but if after it 
 has reached the highway, a person fall over it and be hurt, the injury is only 
 consequential, and the remedy should be case (4), for wrongfully or care- 
 lessly throwing and leaving the *timber in the road (g-) (5). So if a [•128] 
 person pour water on my land, the injury is immediate ; but if he stop up 
 a water-course on his own land, whereby it is prevented from flowing to 
 
 (d) 1 Moore, 407; 7 Taunt. 698, S. C. the force or trespass, and declare in case for 
 
 (e) 3 East, 693; 1 Campb. 497; 2 Id. 465; tUe negligence, if provable; and see 4 B. & D. 
 
 5 T. K. 648; see 2 New Rep. 117, 446; 3 227, per Bayley, J. 
 Campb. 188, in which it is questioned whether (/) Post. 
 
 the plaintiff may not, in this instance, waive (g) 3 East, 602; 1 Stra. 636; 5 T. B. 649. 
 
 (1) For the criterion of trespass, see Smith v. Rutherford, '2 Serg. & Rawle, 858, and when 
 the action should be trespass, and when case. Cotteral v. Cummins, 6 Serg. & Rawle, 343. 
 The invasion of a franchise or mere incorporeal right, is to be redressed by an action on the case ; 
 but when visible, tangible, corporeal property is injured, if the injury be direct, immediate and 
 ■wilful, trespass is the proper form of action, although that property be connected with, or be the 
 means by which an incorporeal right is enjoyed. Thus where a party was authorized by an act 
 of the legislature to erect a dam in a river previously declared a public highway, and after its 
 erection it was wilfully and intentionally cut away by third persons, and an immediate and direct 
 injury ensued; held, that the remedy was by action trespass, and not case. Wilson v. Smith, 10 
 Wend. 324. Where the injury is direct and immediate, proceeding from the wiiT^u/ and intentional 
 a.ct of the defendant, the action must be trespass ; but if the injury be attributable to negligenee 
 though it be immediiUe, either case or trespass may be brought. lb. and Percival v. Hiolsey, 18 
 Johns. 257. Baldridge v. Allen, 2 Iredell, 206. Trespass on the case may be sustained for an 
 injury to personal property, which is the result merely of the negligence of the defendant, 
 although the injury is immediate. Claflin -a. Wilcox, 18 Vermont, 605. So case lies for a direct 
 and violent injury to personal property, if it was caused by the defendant's carelessness, and 
 the act was not wilfully done. Schuer v. Veeder, 7 Blaokf. 342. 
 
 (3) See Wrights. Wilcox, 19 Wendell, 343. 
 
 (4) But in such a case, if it appear that the party injured did not use ordinary care, by 
 which the obstruction might have been avoided, he cannot maintain the action. Smith v. Smith, 
 2 Pick, 621. 
 
 (5) See Linsley v. Bushnell, 15 Conn. 225. Case lies against a private religious corporation, 
 for leaving the walls of their church, after it had been destroyed by fire, in such a slate that 
 they were blown down upon a passer-by. Rector, &c. v. Buckhart, 3 Hill, 193. One cannot 
 recover for an injury, even from the gross negligence of another, unless he be free from culpable 
 negligence on his own part. Bush d. Brainard, 1 Cowen, 78; Smith ti. Smith, 2 Pick. 621; 
 Hartford v. Roper, 21 Wend. 615; Washburn v. Tracy, 2 Chip, 128; Noyes v. Morris, 1 Vermt. 
 353; Lane v. Crombie, 12 Pick. 177; Buckle j;. Dry Dock Co., 2 Hall, 151 ; Harlow v. Humiston, 
 
 6 Cowen, 189; Johnson v. Castleman, 2 Dana,. 378; Simpson e. Hand, 6 Whart. 311; Barnes 
 V. Cole, 21 Wend. 188; Coggswell v. Baldwin, 15 Vermont, 404; Wynn ij. AUard, 5 Watts & 
 Serg. 524. But where the defendant negligently left his horse and cart unattended in the 
 street, and the plaintiff, a child seven years old, got upon the cart in play, and another child 
 incautiously led the horse on, and the plaintiff was thereby thrown down and hurt. It was held 
 that the defendant was liable in an action on the case, though the plaintiff was a trespasser, and 
 (sontribated to the mischief by his own act. Lynch i>,Nnrdin, 1 Adol. & El. N. S. 29. 
 
128 
 
 or THE FORMS OP ACTIONS. 
 
 »ATDBB OF mine as usual, or if he place a spout on his own building, in _ consequence 
 
 iNJUKiEs Qf ^hich water afterwards runs therefrom into my lane, the injury is con- 
 
 Ex DELICTO ^^^gj^^jj^j. because the flowing of the water, which was the immediate 
 
 injury, was not the wrong-doer's immediate act, but only the consequence 
 
 thereof, and which will not render the act itself a trespass or immediate 
 
 wrong (A) (I). 
 
 It is chiefly in actions for running down ships that difficulties occur, be- 
 cause the force which occasions the Injury is not in such cases necessarily 
 the immediate act of the person steering, for the winds and waves may 
 and generally do occasion the force, and the personal act of the party 
 rather consists in putting the vessel in the way to be acted upon by the 
 wind, and the injury might even have happened from the operation of the 
 wind and tide counteracting his efforts (i). In the case of an injury aris- 
 ing from carelessness or unskilfulness in navigating a ship, if the injury 
 were merely attributable to negligence or want of skill, and not to the 
 wilful act of the defendant, with intent to injure the plaintifl', the party in- 
 jured has, it seems, an election, either to treat the negligence or unskil- 
 fulness of the defendant as the cause of action, and to declare in case, or to 
 consider the act itself as the injury, and to declare in trespass (A) (2). 
 And it is probable the same doctrine would be applied to the case of an 
 injury resulting from the careless or unskilful driving of carriage (Z), 
 And it was recently held, that where through negligent and careless driv- 
 ing, one vehicle is caused forcibly to strike another, an action on the case is 
 sustainable for the injury done, although it be immediate upon the violence, 
 unless the act producing it was wilful (m) (S5), and if both parties were 
 to blame and guilty of negligence, then neither can sue at law (w)(4). 
 So where there has been ^.n illegal distress, the plaintiff has frequently the 
 option of declaring in case or in trespass (o). And it is clear that tro- 
 ver (;>) or it seems detinue (q'), may be supported, although the defendant 
 obtained the goods by an act of trespass. In Scott v. Skeppard (r),Mr. 
 
 (A) Stra. 631, 635; LI Raym. 1399; 2 (re) Id. ibid; but in Admiralty Courts it is 
 
 Burr. 1114. otherwise, see 2 Chitty's Gen. Prae. 514, 516. 
 
 (t) 8 East, 603, 602; 8 T. R. 192; 1 B. & (o) 1 B. & C. 145; 2 D. & R. 256; 3 Stark. 
 
 P. 476. 171, 
 
 (fr) 2 New Rep. 117; 8 T. K. 188; BEast, (/>) 1 B. & C. 142; 4 Id. 286. 
 
 601 ; 1 B. & P. 472; 4 B. & C. 226 to 228; {q) Ante, 122, 123. 
 
 but see r;?iie, and note (c). (r) 2 Bla. Rep. 897; 11 Mod. 180; 4 Co. 
 
 (I) Id. ; see next case, supporting the au- 94 b. 95; Hob. 180; Sty. 99; 1 B. & P. 476; 
 
 thor's suggestions. 2 Burr. 1113; Salk. 110. 
 
 (m) Williams v. Holland, 6 Car. & P. 23. 
 
 (1) Tide Adams v. Hemmenway, 1 Mass. 145; Arnold d. Foot, 12 Wend. 330. 
 
 (2) Sc6 Gates v. Miles, 8 Conn. 64; Case v. Mark, 2 Ham. 169; Post v. Munn, 1 South, 61; 
 Blin V. Campbell, 14 Johns. 432; Dalton v. Favour, 8 N. Hamp. 465; Percival v. Hiodey, 18 
 Johns. 257, where the cases are reviewed by C. J. Spencer. Where the injury is both direct or 
 immediate and consequential, the party injured hjis an election to sue either in case or trespass. 
 M'Alister v. Hommond, 6 Cowen. 842. 
 
 (3) Claflin v. Wilcox, 18 Vermont, 605; Schuer v. Veeder, 7 Blackf. 342; Payne v. 
 Smith, i Dana, 497. Where the injury consisted in driving the plaintiff's beast upon a 
 fence, whereby its death was caused, it was held that either trespass or case would lie. Water- 
 man V. Hall, 17 Vermont, 128. See James v. Caldwell, 7 Yerger, 88. 
 
 (4) See Abbott, Shipp. (6th Am. ed.) 230, in note. The same rule is applied in courts of 
 sommon law, to cases of damage done by collision of vessels. Vanderplank v. Miller, 1 Moody 
 & Mai. 169; Vennall v. Garner, 1 Crompt. & Mcea. 21; Simpson v. Hand, 6 Wharton, 311; 
 Broadwell v. Swigert, 7 B. Monroe, 89; Lack v. Seward, 4 Carr. & Payne, 106; Kennard v. 
 Burton, 25 Mame, 39; Sills v. Brown, 9 Carr. & Payne, 601; New Haven Steamboat Co. v. 
 Vanderbilt; 16 Conn. 420; Bathbun v. Payne, 19 Wendell, 899; Raisin v. Mitchell, 9 Carr. 
 & Payne, 613; Barnes v. Cole, 21 Wendell, 188. The Scioto, Davies Rep. 869, 864. A dif- 
 ferent rule prevails in the Admiralty, Abbott, Shipp. (6th Am. ed.) 230, in note. 
 
EX DELICTO. 128 a 
 
 J. Blackstoue said, that a person may bring trespass for the immediate in- hatobb o» 
 jury, and subjoin a, per quod for *the consequential damage, or case for the ^'^",^. 
 consequential damage, passing over the immediate injury ; and in Pitts v. r ,11^29 V 
 Gaince and another (s), where the declaration was in case, and stated '■ ■' 
 
 that the plaintiff was master of a ship laden with corn ready to sail, and 
 that the defendant seized the ship and detained her, whereby the plaintiff 
 was prevented from proceeding in his voyage, an exception was taken that 
 the declaration should have been trespass, and several cases were cited ; 
 but Lord Holt observed, that in those cases, the plaintiff had a property 
 in the thing taken, but here the ship was not the master's, but the owner's ; 
 the master only declared as a particular of&cer, and could only recover for 
 his particular loss, yet he might have brought trespass, as a bailee of goods 
 may, and declared upon his possession, which is sufficient to maintain tres- 
 pass. Hence it appears that either trespass or case may sometimes be 
 supported where there is both an immediate and also a consequential 
 injury (0- 
 
 Cases sometimes arise where the law considers special consequential When the 
 damages as too remote, but case lies for not repairing the defendant's t°a°*not too 
 fence, per quod plaintiff 's horses escaped into the defendant's close, and remote, 
 were there killed by the falling of a hay stack, the Court considering that 
 such damage was not too remote (m). 
 
 The legality or illegality of the original act is not in general the crite- As to the 
 rion whether the injury was immediate or consequential, and will not Jfff«^»(y «' 
 therefore be the test whether the remedy should be trespass or case (j/). nJ»otf " 
 A person may become an immediate trespasser vi et armis (1), even in 
 the performance of a lawful act, if in the course of such performance he 
 be guilty of neglect ; as if he hurt another by accident (z). And case 
 will lie for doing an unlawful act if the damage sustained thereby be not 
 immediate but consequential, although the defendant has no malicious in- 
 tention (a). However if the injury was committed through the medium 
 of and under regular process, as in the case of a malicious arrest or prose- 
 cution, although such injury were forcible and immediate, yet the remedy 
 must be case (6) (2). If, however, the act complained of amount to a 
 felony, as if the house were entered, or the goods were taken burglarious- 
 ly or feloniously, the civil remedy is merged in the criminal offence, and 
 no action can be maintained until the offender has been duly prosecut- 
 ed, &c. (c). 
 
 Nor is the motive, intent, or design of the wrong-doer towards the com- Intent, 
 plainant the criterion as to the form of the remedy (d) ;, for where *the J^ri»i.'°*' 
 
 r *130 1 
 
 (5) 1 Salk. 10; 2 D. & R. 256. («) 11 Mod. 180, 3 Wils. Ill, 410; 2 Bla. L •»■'"' J 
 
 (t) See the last eight notes, and Williams Bep. 895. 
 1). Holland, 6 Car. & P. 23. (A) 3 T. B. 185; 2 Chit. Rep. 304; 1 D. & 
 
 (tt) Powel V. Salisbury, 2 Tounge & Jerv. B. 97. , 
 391. (c) See Sty. 346; Yel7. 90; 1 Sid. 375; 
 
 («) 1 Stra, 635, n. 2; 3 East, 601; 3 Wils, 2 B. & P. 410; 6 T. B. 175; 2 C. & P. 41. 
 409; 2 Bla. Bep. 894. (d) 3 Wils. 309,; 2 Bla. Bep. 832; 3 East, 
 
 \z) Id.; 3 Wils. 411; 1 Stra. 596; 27 H. 599, 601. The intent, however, is considered 
 
 6, 28 a; 1 Bing. 213. • by the jury in the damages, 2 Stark. 213. 
 
 (1) Blin V. Campbell, 14 Johns. 432; 18 Johns. 288; Cotterall -v. Cummins, 6 Serg. & . 
 Kawle, 343. Vide Stultz v. Dickey, 5 Binn. 288. 
 
 (2) But where a sheriff levies afi.fa. after the return day, the proper action is trespass and 
 not case. Vail v. Lewis and Livingston, 4 Johns. 450. Afi. fa. issued within the period of 
 stay of execution, and after security has been given tbr the purpose of obtaining it, is a nullity, 
 and trespass lies against the plaintiff or prothonotary for issuing it. Milliken v. Brown, 10 Serg, 
 & Bawle, 188. 
 
 You I. 20 
 
INJDBIIS 
 XX DEUCIO 
 
 I^Q OP THE FORMS OP ACTIOUa. 
 
 »ATTOK OF act occasioning an injury is unlawful, the intent of the wrong-doer is im- 
 „„„=,„ material (e)(1) and it is clear that the mind need not in general concur 
 in the act that occasions an injury to another, and if the action occasion an 
 immediate injury, trespass is the proper remedy without reference to the in- 
 tent (f). If, however, in pleading, the injury be stated to have been 
 committed wilfully (2) and in other respects it be uncertain whet^erit be 
 immediate or consequential, the Court will consider it as immediate in- 
 iury (ff) There are many cases in the books, where the injury being di- 
 rect and immediate, trespass has been holden to lie, though the injury 
 ■were not intentional ; as in Weaver v. Ward (A), where the defendant ex- 
 ercising in the trained bands, and firing his musket, by accident hurt the 
 plaintiff: and in Underwood v. flewsow (f), where one uncocking a gun, 
 it went off, and accidentally wounded a by-stander. And if one turning 
 round suddenly were to knock another down (3), whom he did not see 
 ■without intending it, no doubt the action should be trespass (/c) ; and where 
 a person accidentally drives a carriage against that of another, the injury 
 is immediate, and trespass or case is sustainable, though the defendant was 
 no otherwise blaniable than in driving on the wrong side of the road on a 
 dark night (/). There is an exception, however, in favor of public offi- 
 cers, who are bound to obey the process of the Courts ; thus if a sheriff, 
 after a secret act of bankruptcy committed by A., levy his goods under 
 an execution against him, he cannot be sued by the assignees in trespass, 
 but only in trover, because such public" officers ought not to be made tres- 
 passers by relation (m). And in some other cases, though the intent may 
 not be material to the form of action, it may decide whether any action be 
 sustainable. In some instances, wovis prima facie slanderous are not ac- 
 tionable, if not spoken maliciously. And it seems to be a general rule, 
 that if a party be in the prosecution of a legal act, an action does not lie 
 for an injury resulting from an inevitable or unavoidable accident, which 
 occurs without any blame or default on his part (w). 
 
 (c) 6 East, 464, 473, 374; 2 East, 107; 5 (fc) Per Lord EUenborough, and Lawrence 
 
 Esp.Rep. 214, 215. J., 3 East, 595, 596. 
 
 (/) PcrLordKenyon, 8T.R. 190; 3 East, (/) 3 East, 693; Williams vi Holland, 6 
 
 699, 601 ; 1 Campb. 497; 2 irL 465. Car. & P. 23; see ante, 127. 
 
 ig) 8 East, 699, 601; 8 T. E. 191; 3 East, (m) 1 T. K. 480; 1 Lev. 183; see 1 Burr. 
 
 109; 2 Burr. 1114. 20. 
 
 (ft) Hob. 134; sea 1 Bing. 218. (n) 2 Chit. R. 689; 1 Bing. 213; ante, 77. 
 
 (t) 1 Stra. 696. 
 
 (1) Amiok V. O'Hara, 6 Blackf. 258. 
 
 (2) Whether an action is trespass or trespass on the case, is to be determined from the fact, 
 alleged in the declaration, and not from the name given to the action. Coggswell v. Baldwin, 
 15 Vermont, 404. The manner in which a breach is alleged does not determine the form of the 
 action. Howe v. Cook, 21 Wendell, 29. 
 
 (3) Loubz V. Hafuer, 1 Dev. 185; Hodges v. Weltberger, 6 Monroe, 837. Where one intosi- 
 oated falls against a stove, and spills hot water thereby on another, he is liable in 
 trespass. Sullivan v. Murphy, 2 Miles, 298. In Taylor o. Rainbow, 2 Hen. & Mun. 423, 
 the defendant had negligently, but without any design to injure, discharged a gun, and 
 wounded the plaintiff, who brougkt an action on the case: it was held that trespass was the 
 proper remedy, and that it was immaterial whether the injury were committed wilfully or not. 
 See also Cole v. Fisher, 11 Mass. 137. But see filin v. Campbell, 14 Johns. 432. In 
 the case last cited. Judge Spencer, in delivering the judgment of the court recognizes the 
 distinctions in cases of injuries arising from driving carriages or navigating ships, &o. If 
 the injury were immediate, and be stated in the declaration to have teen wilfully com- 
 mitted, or appear to have been so on the trial, the remedy mu$t be trespass; but if the injury 
 arises from negligence, though immediate, the party injured has his election to bring either 
 trespass or case. Subsequent cases in the same court also recognize the same distinction. Per, 
 clval V. Hickey, 18 Johns. 257; Wilson v. Smith, 10 Wend. 324. 
 
EX DELICTO. 130a 
 
 In some cases of iuToluntary trespass upon land, a tender of amends katom of 
 may be pleaded (o). And in actions against public agents, the intent ^''p^io 
 may be frequently material in considering tiieir liability {p)'. 
 
 For some torts which may prima facie appear to be forcible and imme- 
 diate ; as for an excessive distress (9) ; or for driving a distress *out of [ *131 ] 
 the county in which it was taken (/•) ; or for injuries to personal or real 
 property in reversion (s) ; or against a bailee of personal property having 
 an interest therein, and who has injured the same, but not destroyed it (<) ; 
 an action on the case is a proper remedy. So though a master may be 
 liable under the circumstances to compensate an immediate injury commit- 
 ted by his servant, in the course of his employ, with force (m) ; yet the 
 action against the master in general must be case, though against the servant 
 it might for the same act be trespass (a;) (1). Where an injury arose from 
 the careless driving of a person who was one of the proprietors of the 
 coach, it was held that he and the other proprietors might be jointly sued 
 in case (y). If the injury arise from the want of care, or negligence of 
 the servant, case is the remedy (2) ; but if it occurred as the necessaryj 
 probable, or natural consequence of the act ordered by the master, then 
 the act is the master's, and he should be sued in trespass (if the act were 
 forcible and immediate). Therefore where a master ordered a servant to 
 lay some rubbish near his neighbor's wall, but so it might not touch the 
 same, and the servant used ordinary care, but some of the rubbish naturally 
 ran against the wall, it was held "that trespass was maintainable against 
 the master {z). 
 
 From this concise view of the nature of injuries ex delicto, as well as 
 from the following observations on the properties of each particular action, 
 it may be collected that there are four leading points to be attended to in 
 deciding what form of action should be adopted. First, the nature of the 
 matter or thing affected ; secondly, the plaintiff's right thereto ; thirdly, 
 the means by which the injury was affected ; und, fourthly, the situation 
 in' which the defendant stood. 
 
 And first, the nature of the matter or thing affected ; as whether it were Sommaiy 
 
 substance or tangible, as the body, personal chattels, and real property ^}^f 
 
 corporeal ; or not tangible, as health, reputation, and real property incOr- ^jnta'on 
 
 porcal. In the first instances, as the property might be affected immedi- which the 
 
 ately by an injury committed with force, trespass, case, replevin, trover, C*"™ °' 
 
 or detinue, may or may not be sustainable, depending on the other three dtiuta 
 
 points, and the particular properties of each action (a) ; but in the latter may de- 
 pend. 
 
 (0) 21 Jac. 1, 0. 16, s. 55 Vin. Ab. Tres- (/) Bac. Ab. Trespass, B. 
 pass, 542; 3 Lev. 37. (b) ^nie, 80, 81. 
 
 (p) Jlnte, 77; 6 Taunt. 29. (x) 1 East, 108; See 9.B. & C. 591; 4 M. 
 
 (q) .52 Hen. 3, c. 4; 3 Bla. Com. 12; 2 & R. 500, S. C. 
 Stra. 851; 1 Burr. 590; Fitigib. 85; 1 B. & (y) 4 B. & C. 223; 6 D. & R. 575, S. C. 
 
 C. 145; 2 D. & E. 256; 3 Stark. 177. {z) 9 B. & C. 591; 4 M. & R. 500, S. C. 
 
 ()•) /d, ibid.; 2 Inst. 106; 3 Lev. 47; 2 (a) Replevin lies only for personal property, 
 
 Stra. 1272. and not for taking part of the freehold, 4 T. 
 
 (s) 4 T. R. 489; 7 T. E. 9; Com. Dig. Ac- R. 504 (325). 
 tion on Case, Nuisance, B. 
 
 (1) Per curiam, 17 Mass. 244, Campbell v. Phelps. "The principal cases which appear 
 to have turned upon the distinction between trespass and case are collected and classed accord- 
 ing to their characteristic circumstances, ih a note to Hugget v. Montgomery, 2 New, 448 — 
 Day's edit." Note by Mr. Day. 
 
 (2) See Johnson ti. Castleman, 2 Dana,, 878; Campbell v. Phelps, 17 Mass. 246; Broughton 
 V. Whalton, 8 Wend. 474. 
 
181 OF THE POEMS OF ACTIONS. 
 
 sxrvms ot instances, an action on the case is in general the only remedy, because the 
 
 injcEiEs property could not be injured immediately by force. 
 
 BXDKuoio Secondly, The nature of the plaintiff 's r^A^ to the matter or thing 
 
 r •2g2 1 affected ; as if the injury were to the person, whether the right were "ab- 
 solute or relative; in the latter instance case being sustainable, however 
 forcible the injury ; or if the damage were to personal or real property, 
 whether the right were in severalty or joint-tenancy, or in common, or in 
 possession or reversion ; in the last instance neither trespass, trover, re-> 
 plevin, nor detinue could be supported, but only case (6) (1). 
 
 Thirdly, The means by which the injury was affected ; as whether it 
 were a commission or omission ; in the latter case trespass is not in gene-" 
 ral sustainable (c) ; or with or without force, actual or implied, for if 
 • without force, case is in general the remedy (rf) ; or immediate or conse- 
 quential ; in the latter case, trespass is not sustainable (e) ; or whether 
 the injury were committed by the defendant himself, or by his agent or 
 servant, or by his cattle or property (/), or under color of a distress fof 
 rent, &c. or of the process of a superior or inferior Court. 
 
 Fourthly, The situation or character in which the defendant stood, as 
 whether he were joint-tenant or tenant in common with the plaintiff (§■) ; 
 or whether there were any privity of contract between the plaintiff or de- 
 fendant, in respect of the latter being tenant or bailee, when in general 
 trespass cannot be supported (A). Keeping in view these important 
 points, we proceed to consider the nature and particular applicability of 
 the several actions in form ex delicto. 
 
 I. oa iam 
 
 oua. 
 
 1. ACTION ON THE CASE. 
 
 We hare before remarked that an action upoii the case was a remedy 
 given by the common law, but that it appears to have existed Qnly in a 
 limited forni, and to a certain prescribed extent, until the statute of West- 
 minster 2 (i). In its most comprehensive signification it includes as- 
 , sumpsit as well as an action in form ex delicto (&); but at the present 
 time, when an action on the case is mentioned, it is usually understood 
 to mean an action in form ea: delicto; and therefore, where a navigation 
 act enacted that the company might sue for calls, &c. by action of debt, 
 or on the case, it was holden that an action on the case in tort lay, though 
 the defendant might thereby be deprived of the benefit of a set-off (/). 
 
 Actions on the case are founded on the common law, or upon acts of 
 parliament, and lie generally to recover damages for torts not committed 
 with torce, actual or implied ; or having been occasioned by force, where 
 
 y t?e:Sl26; 3C..pb.l87. g Jl' '95 '"'• ^'" "'"^' «' 
 
 Cb:ll^T^i:^^r^^'> &lfv h«i "1 ^°^ trover Mather «. Ministers of Trinity 
 taker. Baker^^Xweu! eV^a'^^Tr'' "^*"*^ ^°' ^ P««^" "^ ^*' '^ '°^^ ^7 '"^ 
 
I. ON fHE GAS£. 132 
 
 the matter affected was not tangible, or the injury was not immediate, but t- toim 
 consequential ; or where the interest in the propei'ty was *only in rever- "*"' 
 sion; in all which oases trespass is not sustainable (m.) Torts of this na- j. ^„„,^ 
 ture are, to the absolute or relative rights oi persons, or to personal prop- L ^°^ J 
 erty in possession or reversion, or to real property, corporeal or incorpo- 
 real, in possession or reversion. These injuries may be either by nortr- 
 feasance, or the omission of some act which the defendant ought to per- 
 form ; or by misfeasance, being the improper performance of some act 
 which might lawfidly be done ; or by malfeasance, the doing what the de- 
 fendant ought not to do ; and these respective torts are commonly the 
 performance or omission of some act contrary to the general obligation of 
 the law, or the particular right or dc-ties of the parties, or of some express 
 or implied contract between them. 
 
 Case is the proper remedy for an injury to the absolute rights of per- 
 sons not immediate, but consequential (1) ; as for keeping mischievous ani- 
 mals, having notice of their propensity (w) (2), or for special damage aris- To person* 
 ing from a public nuisance (o) (3). But if the injury were immediate, as absolutely. 
 if the defendant incited his dog to bite another, or let loose a dangerous an- 
 imal (/>) ; or if in the act of throwing a log into a public street, it hurt the 
 plaintiff {cj) ; or if an injury be committed by cattle (r) to land ; the action 
 should be trespass. Also, whenever an injury to a person is occasioned 
 by regular process of a Court of competent jurisdiction, though mali- 
 ciously adopted, case is the proper remedy, and trespass is not sustaina* 
 ble (s) (4) ; as for a malicious arrest ; or for malicious prosecution of a 
 criminal charge before a magistrate or otherwise (<). If the proceeding 
 be malicious and unfounded, though it were instituted by a Court having 
 
 <m) 4TiR. 489j 7 T. R. 9i sonal property may also affect persons, as 
 
 (n) Ante, 82. negligence in riding horses and driving oar^ 
 
 (o) Willes, 71 to 75; and see note to the riages, &c. 
 
 precedent in case for laying rnbbish in a <p) .^nte,.82. 
 
 street, post, vol. it. and 11 East, 60. When (9) Ante, 127. 
 
 not, see 12 East, 432. Injuries arising from (r) Ante, 82, 83. 
 
 keeping mischievous animals, and from public (s) 3 T. B. 185 ; Foot v. Cooper, 1 T. R. 
 
 nuisances, also frequently affect personal 535; 3Esp. Rep. 135; 11 East,297; 1 Campb. 
 
 property j and on the other hand, many of the 295; "2 Chit. R. 304 ; 1 D. & R. 97. 
 
 wrongs hereafter enumerated ea affecting per- (i) 2 Chit. Rep. 304i 
 
 (1) Cole o. Fisher, 11 Mass. 137; Johnson v. Castleman, 2 Danaj 378; Peroival ». Hickey, 
 18 Johns; 257; Guilleci Swan, 19 Johns; 881; Case v. Mark, 2 Ham. 169J Carster v. Murray, 
 Harper, 43; Clay v. Sweet, 1 Marsh, 194; Winslow v. Beall, 6 Call. 44. 
 
 (2) He who has the care and custody of sheep, for the purpose of dfepasturing them, is liable 
 for damages done by them, in the same manner and to the same extent as the owner; Barnum 
 w. Vanduser, 16 Conn. 200; Sheridan ti. Bean, 8 Metoalf, 284. See Brill v. Hagler, 23 Wend. 
 254. If a person cause an injury with his dog, the remedy is trespass j but if the dog do injury 
 of his own accord, in the absence of his owner, the remedy is case; Dilts ji. Kinney, 3 Green, 
 130. A father may sue in case for an injury done to an infant child, (then living with him and 
 engaged in his service), by dogs, permitted by the defendant to run at large, after knowledge 
 that such dogs were accustomed to bite mankind. Burden v. Barrett) 7 Alabama, 160. Tlie 
 owner of a cow, accustomed to hook — the vicious propensity being known to her owner — is lia- 
 ble for damage done by.her, although it be done in the highway against the land of her owner, 
 and while going to her usual watering place. Cogswell v. Baldwin, 15 Vermont, 404. 
 
 (3) Abbott V. Mills, 3 Vermont, 521. So, in case, parties may be joined as defendantSi who 
 were not present when the act complained of was doncj and therefore not liable in trespass, 
 Moreton v. Hardem, 6 Dowl. & Ryl. 275; Case is the proper remedy against a corporation that 
 causes a trespass to be committed by its agent. Hamilton Co; v. C: & W. Turnpike, Wright, 
 603. 
 
 (4) Luddington v. Peck, 2 Conn. 700 j Hayden o. Shed, 11 Mass. 500; Owens v. Starr, 2 Litt 
 234; Plummer v. Dennett, 6 Greenl. 421; Turner v. Walker, 3 Gill & Johns. 877; M'Hugh v. 
 Fundi. 1 Bailey, 441, Watson » .Watson, 9 Conn. 141; Beaty ». Perkins, 6 Wend. 882; Lovier 
 V. Gilpin, 6 Dana, 821; Warfieldc. Walter, 11 Gill & Johns. 80. 
 
J^33 OV THE FORMS OP ACTION'S. 
 
 I. cir THE no jurisdiction, case may be supported, or trespass (m). Formerly it was 
 ''^^^- usual in these instances, where several persons combined in the prosecu- 
 tion, to proceed by writ of conspiracy, but the action on the case is now 
 the usual remedy {x) (1). If, on the other hand, the proceeding com- 
 plained of were irregular {2,) the remedy in general must be trespass ; and 
 therefore, where a justice of the peace maliciously and irregularly granted 
 a warrant against a person for felony, without any information upon oath, 
 it was decided that the remedy against the justice should have been tres- 
 pass and not case (j^) (3) (4) ; and though case may be supported for mali- 
 ciously suing out a commission of bankruptcy (z), or now a fiat, yet an ac- 
 [*134j tion of trespass *is also sustainable for the seizure of goods under the 
 same, because if the plaintiff were not subject to the bankrupt laws, the 
 commissioners had no jurisdiction, in which case trespass is always sus- 
 tainable, if in other respects the injury were forcible and immediate (u). 
 Case, we have seen, is also the proper remedy, where the right affected 
 was not tangible, and consequently could not be affected by force, as re- 
 putation and health, the injuries to which are always remediable by action 
 on the case ; as, libels, or verbal slander. It is also the only remedy 
 against sheriffs, justices, especially after convictions quashed (/»),or other 
 officers acting ministerially and not judicially (c), for refusing bail (a?) or to 
 receive an examination upon the statute of hue and cry, &c. (e) ; and case 
 lies against surgeons, agents, &c. for improper treatment, or for want of 
 skill or care ; though assumpsit is also sustainable(/.) 
 
 Actions for injuries to the relative rights of persons, as for seducing or 
 harboring wives, enticing away or harboring apprentices or servants, are 
 properly in case ; though it is now usual, and perhaps more correct, to de- 
 clare in trespass vi et armis and contra pacem, for criminal conver- 
 sation, and for debauching daughters or servants (g-) ; yet as the con- 
 sequent loss of society or service is the ground of action, the plaintiff 
 is still at liberty to declare in case (A) (1). When, however, the action 
 
 {«) 2 Wils. 302; Hays v. ToungloTe, 7 B. feasance, A. 1 &c. See ante, 77, 78, as to li- 
 
 Monroe, 545. ability of public officers. 
 
 (i) 1 Saund. 228, 830, n. 4. (d) 2 Saund. 61 o, d.: 3 B. &P. 561. 
 
 (y) 2 T. K. 225; 2 Chit. Rep. 304; 1 D. & (e) 1 Leon. 323, 324. 
 
 E- «7. (/) 8 East, 348. 
 
 (z) 2 Wils. 145. (g.) 2 New Rep. 476; 2 M. & Sel. 436. 
 
 .i^^^.^^o*''^- f^' !^1' ^o".'?°!^ J*?^- ^''^' f'') S ^<'^*' 39. See the reasons, and the 
 
 412. 413; see 2 D. & R. 853; 1 B. & C. 63, different precedents, poit, vol. ii Index, 
 
 °-7, .„„, ... , •' Debauching Wife and Daughters." 2 Chit. 
 
 (b) 43 G. 3, c. 141, post. Rep. 260; a7ite, 126. 
 
 (c) Com. Dig. Action on the Case, Mis- 
 
 (1) Mott V. Danforth, 6 Watts, 304. 
 
 „t,^^Ll'*^'"T'^^*°'■'"'" ''• "^.'•^^'■?' 6D0W1.& Byl. 275. and obserre the reasons upon 
 which the form of action was sustained in that case. See Cooper ii. Halbert 2M'MuUnn /iQ 
 
 SS^'l?";^ " """l^- '' ^^^- * ^'"'^^ ''''': 7'^' «'=''"-'° - Sir W?Il[l Scotts Camjb: 
 888, which was an action on the case against the defendant, a judge of an ecclesiastical court 
 
 make. Case lies against a justice of the peace, for that afti-r intit,„ tir«. .„ «!, ""'""'^"y "> 
 he rendered judgment against the plaintiff, and deceitfulVcoLSttXt from ht^,''n^ 
 was too late to Ippeal. Neighbor i,. Trimmer, 1 Harr! 58 """""'''^ *''' ^'o' ^™" J"" ""^il it 
 (4) See Kennedy y.Terrill, Hardin, 490; Muse ». Heffernan ft IWn,,* o-r a»- 10 c »l 
 
I. ON THE CASE. 134 
 
 is for an injury really committed with force, as by menacing, beating i- on the 
 (1) or imprisoning wives, daughters, and servants, it is most proper to °^^^- 
 declare in trespass (i). 
 , For injuries to personal property not committed with force or not im To person- 
 mediate (&), or where the plaintiff's right thereto is in reversion (/), case is al property 
 the proper remedy (2). It lies against attornies or other agents for neg- b^aoh'^of 
 lect or. other breach of duty or misfeasance in the conduct of a cause, or a duty or 
 other business (3), &c. though it has been more usual to declare against contract, 
 them in assumpsit {ni). And though we have seen that assumpsit is "^^f ^^^° 
 the usual remedy for neglect or breach of duty against bailees («) ; as current 
 against carriers, wharfingers, and others having the use or care of person- remedy 
 al property, whose liability is founded on the common law as well as on ^ithas- 
 the contract ; yet it is clear that they are also liable in case for an injury ^"'°^°' ' 
 resulting from their neglect or breach of duty in the course of their em- 
 ploy (o) . For any misfeasance by a party in a trade which he professes, 
 the law gives an action upon the case to the *party grieved against him ; r *135 i 
 as if a smith in shoeing my horse prick him, and other lilte cases (;?). 
 And it seems that although there be an express contract, still if a common 
 law duty result from the facts, the party may be sued in tort for any neg- 
 lect or misfeasance in the execution of the contract (9). 
 
 If the contract be laid as inducement only, it seems that case for an 
 act, in its nature a tort or injury, afterwards committed in breach of the 
 contract, may often be adopted. On this ground, case for not accounting 
 for, and for converting to the defendant's use, bills delivered to him to be 
 discounted, or the proceeds of such bills, is probably sustainable (/•). And 
 in Mast v. Goodson (s) it was held that a count in case, setting out an 
 agreement by which tlie plaintiff was to build a yard in defendant's close, 
 and lay out not less than JS20, and was to enjoy it for life, and averring that 
 plaintiff built the yard and enjoyed it for some years as an easement, but 
 defendant afterwards wrongfully obstructed him in the enjoyment of it, was 
 good. In that case the action was founded on a contract ; but the obstruc- 
 tion to the plaintiff's right for which the action was brought was ex delicto, 
 although the right also arose out of the contract (f). And a count stating 
 
 (t) 2ivr. & Sel. 436; 3 Campb, 526, n. (r) 1 New Bep. 43; 6 East, 333, S. C. in 
 
 (/f) Ante, 127. error. 
 
 (/) T. R. 9; 3 Campb. 187. (s) 3 Wilg. 318; 2 Bla. Rep. 848, S. C. 
 
 (m) 6 East, 333. (0 Per Holroyd, J., 6 B. & C. 273; 9 D. & 
 
 (n) Ante, 102. K. 264, S. C; and 1 New Rep. 46, Heath, J. 
 
 (0) See 2 B. & B. 54; 6B. & C. 268. observed that in Mast v. Goodson the Court 
 \p) 1 Saund. 312 a., and n. 2. was of opinion that a count upon a cause of 
 (7) 2 Wils. 319. Per Bayley, J., 5 B. & action to which a contract is only inducement, 
 
 C. 605; 8 D. & B. 378, S. C; 2 Chit. Rep. 1. may be joined with a count upon tort. 
 
 proving any actual loss of service ; it is enough that the daughter be a minor residing with 
 her father, and that he has the right to claim her services. Hewitt v. Prime. 21 Wend, 79; 
 Ilornketh v. Barr, 8 Serg. & Rawle, 36; Parker a. Elliotte, Gfilm. 33; Mercer v. Warmesley, 6 
 Harr. & Johns. 27; Lockwood v. Betts, 8 Conn. 130; Morau v. Hawes, 4 Cow. 412; Clark v. 
 Eitch, 2 Wend. 459. 
 
 (1 ) Hoover v. Keim, 7 Watts, 62. 
 
 (2) As, if the owner of a horse hire him to another for a certain time, and while the hirer is 
 using the horse, the defendant drives against him and kills him, the owner's remedy is by .action 
 on the cruse and not trespass; this being in the nature of an injury to the plaintiff '3 reversion. 
 Hall 1). Piokard, 3 Campb. 187. But where the owner gratuitously permits another person to use 
 the chattel, it is still constructively in hia possession, and he may maintain trespass. Lotan v. 
 Cross, 2 Campb. 464. See Spencer v. Campbell, 9 Watts & Serg. 82. 
 
 (3) Dearborn v. Dearborn, 15 Mass, 316. So, if he disobey the lawful instructions of his client, 
 and a loss ensues. Gilbert v. Williams, 8 Mass. 1. Vide 'faylor, 62, 63, Church v. Mamford, 
 }1 Johci. 479; Stimpson v, Sprague, 6 Qreenl. 470. 
 
]^35 OP THE FORMS OP ACTIONS. 
 
 I. ON THE that the plaintiff being possessed of some old materials, retained the defend- 
 "**"• ant to perforin the carpenter's work on certain buildings of the plaintiff, and 
 to use those old materials, but that the defendant, instead of using those, 
 made use of new ones, thereby increasing the expense, is sustainable (m). 
 
 " Where there is an express promise and a legal obligation results from 
 it, then the plaintiff's cause of action is most accurately described in as- 
 gumpsit, in which the promise is stated as the gist of the action. But 
 where from a given state of facts the law raises a legal obligation to do a 
 particular act, and there is a breach of that obligation, and a consequential 
 damage, there, although assumpsit may be maintainable upon a promise im- 
 plied by law to do the act, still an action on the case founded in tort is the 
 more proper form of action, in which the plaintiff in his declaration states 
 the facts out of which the legal obligation arises, the obligation itself, the 
 breach of it, and damage resulting from that breach " (x). Therefore, 
 where by deed-poll a lessee assigned his term to another, " subject to the 
 rent and covenants," and in consequence of the non-performance of the 
 covenants the lessee was damnified, it was held that he might sue the as- 
 signee in an action upon the case founded in tort ; for, under the circum- 
 [ *136 ] stances, the law *raised a duty in the defendant to perform the covenants, 
 and the breach of that duty had caused an injury to the plaintiff (j;). 
 
 If there be a covenant or contract under seal between the same parties, 
 and directly relating to the matter in dispute, the action must in general be 
 in covenant, and founded thereon (z) (1) ; and consequently in the instance 
 last mentioned, if the assignee had covenanted with the lessee to perform the 
 covenants in the lease, case could not have been maintained, though case 
 for actual waste is sustainable, notwithstanding the defendant covenanted 
 to keep in repair (a). So where there is a charter-party between the master 
 of a ship and the freighter, case does not lie against the master for the 
 breach of a stipulation in the charter-party {pi). But we have already 
 seen, that in some cases the owner may be sued in case upon his general 
 liability, if not charged directly upon the charter-party made under seal 
 with the master (c). 
 
 With regard to nonfeasance, or neglect to perform the contract, not 
 even an action of assumpsit, much less an action upon the case,* can be 
 maintained, if no consideration existed and be stated in the declaration, to 
 give validity to the defendant's alleged obligation to do the act. There- 
 fore a count stating that the plaintiff retained the defendant, who was a 
 carpenter, to repair a house before a given day, and that the defendant ac- 
 cepted the retainer, but did not perform the work, per quod the walls were 
 injured, cannot be supported (d). For the count shows no consideration 
 or legal liability on the part of the defendant to proceed with the work (2). 
 There are, however, some particular instances of persons exercising cer- 
 tain public trades or employments, who are bound by law to do what is 
 
 IS M UtVdalit "^i-^ltm; '^ir^ "' ^ *'°^''* •'"--'"^^ '"''• ^-'' 
 
 ' (i)XB.1^C.^58% 8 D. . R. 368. S. C [^ 6 l^tS^s""' ^""- '''■ 
 
 (z) .ante, 118. There is an exception in (c) 6 Moore, 416: ante. 108 
 
 id) 8 T. R. 148. 
 
 (1) But see post, 137, note. 
 
I. ON THE CAaa. , 136 
 
 required of them in the course of their employments, without the aid of i-on ™k 
 an express contract, and are in return entitled to a recompense, and may ''^"■ 
 therefore be sued in case, as for a breach of duty in refusing to exercise 
 their callings. As where a common carrier, having convenience, refuses 
 to carry goods, being tendered satisfaction for the carriage ; or an innkeeper 
 to receive a guest having room for him ; or a smith, having materials for 
 the purpose to shoe the horse of a traveller ; or a ferryman to convey one 
 over a common ferry, and the like (e). If the tort of a bailee, &c. con- 
 sist in some nonfeasance or defuult, where the act required to be done was 
 not imposed upon him by law, in respect of the employment, and did not 
 impliedly result as a duty from such employment, but was created by ex- 
 press written contract, it would seem that case is not the proper remedy, 
 and that the action should be in assumpsit. In an action upon the case 
 a count charged that the plaintiff had delivered to the defendant certain 
 pigs to be taken care of by him, *"and in consideration thereof the de- [ *137 ] 
 fendant agreed to take care of the pigs, and to re-deliver the same on re- 
 quest." The court held, that this count was to be considered in assump- 
 sit; and Mr. Justice Littledale said, "Suppose a written contract had 
 been entered into in the terms of this count, it could never have been con- 
 tended that a breach of it might be laid in tort ; it would be as reasonable 
 to lay in tort a breach of an agreement to convey a house or land" (/). 
 Case or assumpsit may be supported for a false warranty on the sale 
 of goods (g") ; but for a breach of an express or implied contract of war- 
 ranty, it is usual and perhaps better to declare in assumpsit, in order that 
 the count for money had and received, to recover back the consideration 
 paid, may be included in the declaration ; and where the defendant said, 
 "the horse is sound, but mind I do not warrant him," and it was proved 
 that he knew it was unsound, Lor.d Tenterden held that he was properly 
 sued in assumpsit, on his promise that he was sound (A) (1). Case is 
 necessarily the form of action to be adopted for (now in writing) deceitfully 
 representing a person to be fit to be trusted (2) or other deceit, indepen- 
 dently of and without relation to any contract between the parties (i) (3). 
 
 (e) 1 Saund. 312 o. note 2; 5 T. B. 149, (g) Dougl. 21; 2 East, 446. Case lies for 
 
 150. the deceitful -warranty, although it was part of 
 
 if) 1 B. & C. 268, 274; 9 D. & R. 265, the contract that if the vendee disliked the 
 
 S. C. And see 1 Saund. 312 o. note (c), goods, the vendor should exchange them for 
 
 5th edit. Sed quare whether trover or detin- others of equal value, 2 Stark. 162. 
 
 ue cannot be maintained against a bailee who (A) Sittings at Westminster, 1830, ante, 
 
 wrongfully refuses to re-deliver the goods upon 107. 
 
 a demand, although he had expressly, verbally (i) 2 East, 22; 3 T. R. 51; 4 Bing. 73; 9 
 
 or in writing, agreed to restore them ? G. 4, c. 14. 
 
 (1) The plaintiff is "not permitted to establish deceit and fraud, when he declares in assumpsit, 
 on a warranty expressed or implied. Evertson v. Miles, 6 Johns. 138. Shepherd v. Worthing, 1 
 Aiken, 188; Pickering v. Dowson, 4 Xaunt. 786. See Hughes v. Robinson, 1 Monroe, 215. 
 
 (2) Vide Upton v. Vaill, 6 Johns. 181 ; Russell v. Clark, 7 Cranch, 92. 
 
 (3) So, if on the gift of a chattel the donor affirm it to be his own, and the donee be afterwards 
 evicted and suffer damages and cost, case will lie. Barney v. Dewey, 13 Johns. 226. So, an 
 action on the case lies for fraud or a false affirmation in the sale of land, as where the land 
 pretended to be sold has no real existence, notwithstanding any covenants in the deed. Wardell 
 V. Fosdick, 13 Johns. 325; Frost v. Raymond, 2 Gaines, 193; Bostwick u. Lewis, I Day, 250; 
 Monell V. Golden, 13 Johns. 395. In Gallagher v. Brunnel, 6 Cowen, 346, the pripoiples estab- 
 lished in Pasley v. Freeman, are fully recognized. In the latter case of Benton v. Pratt, 2 Wend. 
 385, an action on the case was held to lie, for the assertion of falsehood Vfith a fraudulent intent 
 as to a present or existing fact, where a direct, positive and material injury results from such 
 assertion. So, it was held to lieagainst a public officer for a false ^nd fraudulent representation 
 made by him in relation to property sold by him ; and it was no answer that the sale was made 
 by him in his official character. Gulver v. Avery, 7 Wend, 880, 
 
 YoL. I, n 
 
187 OP THE FORMS OP ACTIO^fS. 
 
 i.'o» irHE i;A.nd for fraudulent representations not introduced into a -written contract 
 ®**^- between the parties, respecting the subject-matter of the representations, 
 case (1) is the proper remedy, if any (/e). In an action upon the ease in 
 tort for a breach of a warranty of goods, the scienter need not be laid in 
 the declaration, nor if charged would it be proved (/). And where the 
 iplaintiff, an auctioneer, was employed by the defendant, who had goods in 
 his possession, but was not the owner, to sell them, which the plaintiff did, 
 and was afterwards compelled by the real owner to make satisfaction to 
 him for the proceeds ; it was held, after verdict, that a count in case for 
 representing that the defendant was entitled to sell the goods, and thereby 
 deceiving him, was maintainable, although the declaration did not charge 
 that the defendant knew that he was not the owner of the goods at the 
 time the representation was made (ot) (2). 
 
 If goods be obtained on credit through a fraudulent contract, the prop- 
 er remedy is case or trover, at least before the expiration of the credit ; 
 for if before that time he sue in assumpsit for goods sold, he recognizes or 
 [ "IBS ] affirms the contract, and *may be successfully met by the objection that 
 the credit has not yet expired (n) . 
 
 We have already noticed the instances in which case or trespass should 
 be brought against a person who causes an injury by driving his carriage 
 against another's (o), or by negligence in navigating a ship {p) ; and the 
 distinctions when the master should be sued in case, and when in tres- 
 pass (3), have also been adverted to (g). 
 
 When a distress has been made for rent, and there was no rent due, an 
 action of trespass, or case on the statute (r), may be supported (s) (4). 
 So where a distress is' made after a tender of the rent, case or trespass 
 may be suppoi^ted (^). If the person making the distress turn the ten- 
 ant out of possession, or continue in possession an unreasonable time be- 
 ■yond the five days, trespass lies (m) ; and it may be supported where a 
 party taking a distress damage feasant has been guilty of any irregularity 
 (6), rendering him a trespasser ab initio (x) (6). In the case of a dis- 
 tress for rfent, if it were lawful in its inception, a subsequent irregularity 
 
 (ft) 4 Campb. 22; onie, 107. (r) 2 Wm. & M. c. 5. * 
 
 (2) 2 East, 446; 4 Bisg. 78. (s) As to what are irregularitiea in a dis- 
 
 (m) 4 BiUg. 66. tress for which this aotion is maintainable, see 
 
 (7i) 9 B. & C. 59. pott, Tol. ii. and notes to tne precedents. 
 
 (0) Ante,Vl'i. Case is the proper remedy (J) 2D. & 11.266; 1 B. & C. 145; ante, 
 at the suit of the owner of horses let to hire 128. 
 
 against a third person, 3 Campb. 187; 5 Esp. (u) 1 East, 139; 11 East, 396; 2 Campb. 
 
 'B. 86; bnt trespass should be brought if the 115. How long the landlord may remain, see 
 
 horses were merely lent, 2 Campb. 464. 4 B. & A. 208, qualifying 1 Hen. Ela. 18, 
 
 (p) See ante, 128. (x) 8 Co. 146; Bao. Ab. Trespass, B. 
 
 (5) Ante, 131. 
 
 (1) Vide Halloch v. Powell, 3 Cai. 216. Case lies against a grantor for a fraudulent represen- 
 tation that lands sold by him are free and clear of incumbrances, although, in the deed of con- 
 veyance, there is a covenant against incumbrances. Ward v, Wiman, 17 Wendell, 198. See 
 Morgan v. Patrick, 7 Alabama, 186. 
 
 (2) A person assuming to act as agent for another, without authority, may be made liable on 
 the contract as principal, and if the nature of the case do not admit of such remedy, he may be 
 made liable for all damages by action on the case as for a deceit. Clark «. Foster, 8 Vermont, 
 98. If the contract be under seal, such action on the case is the appropriate remedy. Bedfield, 
 J., m Boberts D. Button, 14 Vermont, 195. 
 
 (3) Moretonji. Hardem, 6 DOwl. & Kyi. 275. 
 
 (4) dinger v. M'Chesney, 7 Leigh, 660. 
 
 S^\ l}^? Sackrider v. M'Donald, 10 Johns, 262; Hopkins t>. Hopkins, ib. 269. 
 
 (6) Snath v. Gates, 21 Pick. 55. 
 
I. ON THE CASE. It8. 
 
 will not render the party a trespasser ab initio, or subject him to an action *< «» ™»' 
 of trespass or trover (y) ; and case is the proper remedy in these and most ""*" 
 other instances of irregularity in the taking or sale or disposal of a dis- 
 tress (z) (1). This action also lies for the rescue or pound breach of 
 cattle, or goods distrained for rent or damage feasant {a) ; or for the 
 rescue of a person arrested on mesne process ; and for an excessive levyi 
 on a fieri facias (b) ; and against sheriffs, &c. for escapes, on mesne or 
 final process ; or for not arresting the debtor whea he had an opportunity ; 
 or for not selling on a fi. fa. in a reasonable time (c), and for a false re- 
 turn of non est inventus to mesne process, or of nulla bona to a writ of 
 ^. /a. ; or for not levying under it when he had an opportunity; or for 
 not taking a replevia bond ; or for taking insufficient pledges in replevin ; 
 or for not assigning a bail-bond {d) (2). For an escape on final process, 
 it is most advisable to declare in debt, if the caption of the original de- 
 fendant can be clearly proved, because in debt the jury must give a ver- 
 dict for the entire demand (e) (3) ; but if it be doubtful whether a cap-, 
 
 (j) 11 Geo. 2, 6. 19; 1 Hen. Bla. 13, So (d) See preoedents and notes, post, vol. li. 
 
 on any Turnpike Act, 3 Geo. 4, c, 126, s,,144. An action on the case does not lie for not hav- 
 
 (s) See the eases and preoedents, posi, \ol. ing moneyleviedon_^eri/aciMincoart, where 
 
 li. sheriff had not been ruled, 1 Stark, 38&. 
 
 (0) For law, &o. see post, vol. ii. But case Money had and received to recover moneyi 
 does not lie for detaining cattle distrained levied, see 3 Caiijipb. 347; 8 B. & C. 726; 3 
 damage feasant, where tender of suflScient M. & R. 411, S, C; IB, & B. 380, 370; 16 
 amends was madea,fler the cattle had been im- East, 274. 
 
 pounded, 1 Bing. 341; 1 Taunt. 261. (c) 2 T. E. 129,; 1 S?,und. 38, n. 2.; 2 Chit. 
 
 (6) See 9 B. &, C. 840. R. 454. ' ' 
 
 (c) Jacobs V. Humphrey, 4 Tyr. 272, 
 
 (1) In Pennsylvania, trespass is the proper form of action. Kerr v. Sharp, 14 Serg. & 
 Eawle, 399, ? 
 
 (2) The 14th and 15th sections only, are in force in Pennsylvapia, Roberts' Dig. 236. 8 
 Binn. 626; 14 Serg. & Rawle, 403, 
 
 (3) Porter v. Saywend, 7 Mass. 377. So, trespass on the case lies against an officer, for lev^ 
 ying a warrant for a fine, in an oppressive and unroEisonable manner, with intent to vex, harass, 
 and oppress the party. Rogers v. Brewster, 5 Johns, 125. 
 
 At common law the plaintiff had no remedy against .the sheriff for an escape, whether upon 
 mesne process, or in ep^ecution, but by special action upon the case ; but now; by an equitable ' 
 construction of Weston, 2. c. 11, an ^tion of debt is given against sheriffs for escapes of pris- 
 oners in execution. Bac. Abr. Escape in civil cases, f . JSy the New York statute, sess. 36, c. 
 6T, s. 19. 1 R. L. 425, sherifis on an escape of a party in exeoutipn, are rendered answerable to 
 the plaintiff for the dejbt and damages for which the party was arrested, and the plaintiff ip.ay 
 recover the same with posts by action of debt. The common law remedy by action on th!e case 
 is not taken away by the statute. In the action on the case, the jury may' inquire what was 
 lost by the escape, and give such damages as they suppose the party has sustained ; but in tlf e 
 action of debt, every inquiry of that kind is improper, for the statute has fixed the exte^t of 
 the sheriff's liability, that is, for the original debt and damages recovered. Rawsonc. Dole, 2 
 Johns. 454. Under the statute, debt lies only for an escape; where the prisoner is in execution ; 
 and a prisoner is not in execution, until a writ of execution against the body has been issued 
 and delivered to the sheriff, as the English practice of charging the debt in execution without 
 the issuing of a ca. sa. has never been a.dopted in the state of New York. Debt therefore will 
 not lie for the escape of a prisoner who has been surrendered by his bail, he not being in execu- 
 tion by virtue of the surrender. Van Slyok v. Hogeboom, 6 Johns. 270. In the action of debt 
 for an escape, interest is not recoverable, Rawson v. Dole, ubi sup. In Pennsylvania, eficli 
 sheriff enters into a recognizance, and becomes bound with at least two sureties in an Obliga- 
 tion, conditioned for the faithful performance of official conduct. It has been held in a suit up- 
 on such recognizance, against a sheriff apid his sureties, for suffering a person in execution tp 
 escape, that the defendant could not give evidence of the insolvency of such person. Wplver- 
 ton V. Comm,, 8 Serg. & Rawle, 273. In debt against sheriff for an escape of a prisoner ar- 
 rested upon attachment for not paying costs, an averment in the declaration that the sheriff ar- 
 rested the party and had not detained him in custody in execution, &c. is equivalent to an aver- 
 ipent that l^e was committed to jaiU Ames », Webbers, 8 Wend. 645. Debt fqr an escape 
 against a sheriff lies only where the escape is from imprisonment on an execution i^sue^ ff Pf^ 
 a court of record, It is in the nature of a penalty agaiiist the sheriff for negligence. JSrown 
 
•139 
 
 OF THE P0BM3 OP ACTIONS. 
 
 I. OK THE tion 'can be proved, the declaration should be in case, proceeding for the 
 CASE. ggj. in one count, and in the second for not taking the defendant when 
 the sheriff had an opportunity ; and the same observation applies when it 
 is doubtful whether a sheriff has levied under a writ of /en /acms, or 
 where he has neglected to levy the whole amount (1). Case also lies for 
 not delivering letters, &c. (e) ; and against a witness for not obeying a 
 writ of subpoena (/) ; and for infringing the copyright of a book, print, 
 single sheet of music, or other work {g), and for the infringement of a 
 patent (A), and for obstructing the proprietor of tithes from entering on 
 land to take them away (i). For injuries to any personal property in re- 
 version, trespass or trover cannot be supported ; and case is the only rem- 
 
 In some cases, though the injury be forcible and immediate, the plain- 
 tiff may waive the trespass, and sue in trover or in case for the consequen- 
 tial damage (2), and in this respect trover is in general a concurrent 
 remedy with trespass, for the unlawful taking and conversion of goods 
 (/) ; and case is a good form of action for an excessive distress for rent, 
 though the tenant has tendered the rent to his landlord before the distress 
 was levied, and the distress was therefore void (m). Various other _ in- 
 stances will be found in which trespass and case are concurrent remedies ; 
 and in many cases the owner of goods may waive the tort in taking them, 
 and recover the proceeds in an action for money had and received (w). 
 To real With respect to injuries to real property corporeal, where the injury 
 
 property, -vfas immediate, and committed on land, &c. in the possession of the plain- 
 tiff, the remedy is trespass (o) ; but for nonfeasance, as for not carrying 
 away tithes {p) ; or where the injury is not immediate but consequential, 
 as for placing a spout near the plaintiff's land, so that water afterwards 
 ran thereon, or for causing water to run from the defendant's land to that 
 of the plaintiff (g) ; or where the plaintiff 's property is only in rever- 
 sion (r), and not in possession, the action should be in case (3) ; and it 
 has been considered that case and not trespass is the proper remedy for 
 continuing holdfasts in the plaintiff's wall, after he had recovered in tres- 
 
 (e) 3 Wils. 443. 
 
 (/) Ddugl. 656, S61 ; 9 East, 473; 18 East, 
 17,n. 0. 
 
 (g) 11 Easi, 244; 1 Campb. 94, 98. 
 
 (A) Post, vol. ii. 
 
 (i) 2 New Eep. 466. 
 
 (ft) 7T. R. 9; SCampb. 187. 
 
 (I) 1 Salk. 10; 1 B. & C. 146; 2 D. & K. 
 256, S. C. But the converse does not so 
 
 generally hold, see post, Trespass. 
 
 (m) 1 B. & C. 145; 2 D. & K. 251, S. C. 
 
 (n) Ante, 69; 1 B. & C. 418; 2 D. & R. 
 568, S. C. 
 
 (o) Ante, 127; 1 Ld. Raym. 188. 
 
 (p) 1 Ld. Raym. 187; post, vol. ii. 
 
 (5) Ante, 127, Str. 634, 635; Lord Raym. 
 1399; 2 Burr. 1114; Portesc. 212. 
 
 (r) Com. Dig. Action, Case, Nuisance, B. 
 
 1). Genung, 1 Wend. 115. In New Hampshire, debt does not lie against the sheriff for the es- 
 cape of a prisoner committed to prison on mesne process , when the escape is effected through 
 the insufficiency of the jail. Lovell v. Bellows, 7 N. Hamp. 375. 
 
 (1) Case lies against ministerial officers for any breach of duty, whether intentional Or ma- 
 licious or not. Keith v. Howard, 24 Pick. 292; Gates v. Neal, 23 ib. 308; Spear v. Cummings, 
 ib. 224; Abbott v. Kimball, 19 Vermont, 551; Griffin v. Rising, 11 Metcalf, 339. 
 
 (2) Gilson V. Fiske, 8 N. Hamp. 404; Smith v. Goodwin, 2 Nev. & Man. 114. 
 
 (3) Lienow v. Ritchie, 8 Pick. 235; Hall v. Snowhill, 2 Green. 8; Randall v. Cleaveland, 7 
 Conn. 328; Jackson v. Starr,- 11 Mass. 520; Campbell v. Arnold, 1 Johns. 511; Tobey v. Web- 
 ster, 3 Johns. 468; 3 Greenl. 8; M'Gowen ». Chapen, 2 Murphy, 61; Billiard v. Dortoh, 8 
 Hawks, 245; Ayer v. Bartlett, 9 Pick. 161; Elliott v. Smith, 2 N. Hamp. 430; Brown v. Dins- 
 moor, 3 N. Hamp. 103. 
 
 So an action on the case lies in favor of a landlord against any person who so wrongfully and 
 maliciously disturbs his tenants that they abandon his premises, and the landlord thereby loaeB 
 lui rent. Aldridge v. Stuyyesant, 1 HaU, 210. 
 
I. ON THE CASE. "140 
 
 pass for the original driving (s). It appears, however, as already remark- '• o» ™b 
 ed, that the injury is sometimes considered to be immediate, if it be the °^^''' 
 natural and inevitable consequence *of the act done ; as if the defendant's 
 servant by his order place rubbish so wear the plaintiff's wall that some 
 of it must naturally, or, in all probability, roll against the wall, and it 
 accordingly does so (0(1)- Case is the proper remedy for obstructing 
 light or air through ancient windows by an erection on the adjoining 
 land (2), and such action may be brought in the name of the tenant in 
 possession, or of the person entitled to the immediate reversion, though 
 the averments in the declaration necessarily differ in the latter case. So 
 it lies for any other nuisance to houses or lands in possession, and for in- 
 juries to water-courses where the plaintiff is not the owner of the soil, 
 but is merely entitled to the use of the water (m). 
 
 Waste is either commissive, that is, wilful ; or permissive, that is, a 
 neglect to repair, whereby dilapidations occur. An action upon the case 
 in the nature of waste, to the injury of the reversion, is certainly main- 
 tainable for commissive waste, by a reversioner against his tenant (3) ; 
 or a stranger (a;). And where the lessee even covenants not to do waste, 
 the lessor has bis election to bring either an action on the case, or of cove- 
 nant against the lessee for wilful waste done by him 'during the term. 
 As where a lease is made for twenty-'one years, in which the lessee cove* 
 nanted to yield up the premises repaired at the end of the term, the 
 lessee during the term committed wilful waste, and at the expiration 
 thereof delivered the premises to the lessor in a ruinous condition ; after- 
 wards the lessor brought an action on the case against the tenant for 
 waste committed by him during the term, and it being objected at the 
 trial that the plaintiff ought to have brought an action of covenant, and 
 not on the case, a verdict was found for the plaintiff subject to that point j 
 but the Court of Common Pleas was clearly of opinion that an action on 
 the case was maintainable as well as covenant ; and the C. J. said " ten- 
 ant for years commits waste, and delivers up the place wasted to the land- 
 lord, had there been no deed of covenant, an action of waste, or case in 
 the nature of waste, would have lain. Because the landlord by the special 
 covenant acquires a new remedy, does he therefore lose his old V'(jf). 
 And a landlord may sue a tenant holding over by sufferance, in case for' 
 
 (s) 1 Stark. 22.' be committed in cutting them down, 8 East, 
 
 (0 9 B. & C. 591; 4 M. & B. 560. S. C. 190. The injury would be trespass. The ten- 
 
 (u) 2 B. & C. 910; 4 C. & K 583, S. C. ant's remedy against a stranger is trespass, 
 
 6 Price, 1; see 7 Moore, 345. id.; 1 Taunt. 194. 
 
 (i) 1 Saund. 323 b; 2 Saund. 252 b. If (i/) 2 Bla. Eep. 1111; Kenlyside «. Thorn- 
 trees be excepted from a demise, waste cannot ton, 2 Saund. 252 a, b, note. 
 
 (1) Case lies for carelessly and negligently kindling a fire on the defendant's own land 
 whereby the property of the plaintiff, on adjacent land, was burnt. Barnard v. Poor, 21 Pick. 
 878. See Maull v. Wilson, 2 Barring. 443. 
 
 (2) Occupier of one of two houses built nearly at the same time, and purchased of the same 
 proprietor, may maintain a special action on the case agaih^t the tenant of the other, for ob- 
 structing his window lights by adding to his own building, however short the previous period of 
 enjoyment by the plaintiff ; on the principle, that where a man sells a house, he shall not after- 
 wards be permitted to disturb the rights that appertain to it, and what the original ovrner could 
 not have done, neither could his lessee do it. Compton v. B,ichard3, 1 Price's Exch. 27. 
 
 (3) See Provost, &o. of Queen's College v. Hallett, 14East, 489; ante, 50. So it lies against 
 the assignee of a lessee. Short v. Wilson, 13 Johns. 33 ; Pomfret v. Bicroft, 2 Saunders , 252, a. o. 
 This action does not lie for permissive waste. Oibson v. Wells, 1 New Bep. 290. See Fay 
 V. Brewer, 3 Pick. 206, notes to 2nd ed. 
 
140 
 
 OF THE FORMS OF ACTIONS. 
 
 I.ON THi wilful waste (!s). It was held, before the late repealing act, that a re- 
 CASE, versioner might sue the hundred on the 9 Geo. 1, c. 22, to recover dama* 
 ges for an injury done to premises maliciously set on fire (a). 
 
 r *14n With regard io permissive waste there seems to be some difficulty, it 
 
 •■ -"is laid down by great authority (&), that the statute oi Gloucester (c), 
 
 Cwhich extended the ancient law of waste by the writ of waste) 
 applies io permissive waste by a tenant from year to year. In Gibson 
 y Wells (d) it was held, that case for permissive waste is not sustain- 
 able against a yearly tenant ; and in Heme r. Bembow (e) it was de- 
 cided that case for such waste does not lie against a tenant for a term of 
 years holding upon a lease, which does not contain a covenant to repair. 
 In a subsequent case, Jones v. Hill (/), it was determined that an action 
 upon the case in the nature of waste cannot be supported against the_ as- 
 signee of a lease, in which the lessee had covenanted " from time to time 
 and at all times during the term, when need should require, sufficiently to 
 repair the premises with all necessary reparations, and to yield up the 
 same so well repaired at the end of the term, in as good condUion as the 
 same should be in when finished under the direction of J. M." Upon a 
 breach that the defendant suffered the premises to become and be Jn de- 
 cay and ruinous during a large part of the term, and after the term wrong- 
 fully yielded them up in much worse order and condition than when the 
 same were finished under the direction of J. M. the court did not decide 
 that an action upon the case was not maintainable for permissive waste, but 
 only that it was impossible it should be waste merely tO/omit to put the 
 premises in such repair as A. B. had put them into (g-) ; in other words 
 the peculiar terms of the covenant were such, that a breach of them 
 could not be considered so far within the technical doctrine of waste, as 
 to justify an action upon the case, and therefore covenant should have 
 been the form of action. It has been lately decided, that if a lessee as- 
 sign the term to another by deed-poll, " subject to the performance of the 
 covenants in the lease," the lessee may maintain case against the assignee; 
 for a breach of covenant in the lease committed after the assignment, per 
 quod the lessee was damnified (A). Assumpsit is the usual form of action 
 against a tenant not holding by deed, upon his implied (or express) prO' 
 mise to cultivate a farm according to the rules of good husbandry, and to 
 use the premises in a tenantlike manner (i). , 
 
 Case may be maintained upon the custom of the realm against the per- 
 sonal representatives of a rector, &c. at the suit of the successor, for dilapi' 
 dations (7 ) ; and it lies for not repairing fences, whereby the plaintiff's 
 
 [ '142 ] cattle escaped from his land, or the cattle of the defendant *got into the 
 land of the plaintiff (/c) (1) ; or whereby the cattle in the plaintiff's pos- 
 session escaped and fell into a pit and were killed (Z) or a hay-stack in the 
 
 (z) Tabart v. Tipper, 1 Catnpb. 360. (g) Per Lord Tenterden, 5 B. & C. 603; 8 
 
 (a) 9 B. & C. 134; 4 M. & R. 130, S. C. D. & R. 375, S. C. 
 
 (A) 1 Saund. 323 b, n. 7, cites 2 In3t. 302; (A) 5 B. & C. 589; 8 D. & R. 368, S. C.J 
 
 Co. Lit. 54 b. See however the note in Co. ante, 1S6. 
 
 Lit. 15th edit, citing Dyert 198. (i) See the precedent and notes, pott, 
 
 (c) 6 Edw. 1, c. 5. vol. ii. 
 
 (d) 1 New Eep. 290. (j ) Ante, 91. 
 
 (c) 4 Taunt. 764. {k) 1 Salk. 885; pott, vol. ii. 
 
 (/) 7 Taunt. 392J 1 Moore, 100, S; C; In (I) Rooth v. ^yilson, 1 B. & Aid. 59; 
 
 the latter report the marginal note seems to be 2 Young & Jerr. 891. 
 too general. 
 
 (1) Little V. Lathropt 5 Greenl. 856, 'where the law of fencing against cattle fs laid do^rn. 
 
I. ON' TfiE CASE. 142 
 
 defendant's close fell on and killed platatiff's horses (m). For the escape i. os the 
 of the defendant's cattle into the plaintiff's close the plaintiff might sup- °^^^- 
 port trespass, or distrain the cattle damage feasant. 
 
 We may remember that trespass cannot in general be supported where 
 the matter affected is not substafitial, or the estate therein is incorporeal 
 (w). Case therefore is the proper remedy for disturbance of common of 
 pasture, turbary or estovers (o). If the plaintiff's cattle be chased off the 
 common, trespass may be supported for such chasing; and that form 
 of action may in some instances be advisable, in order that the right may 
 be fully stated on the record. So case is the proper form of action for ob- 
 structing a private way (p) (1) , or a public way, per quod the plaintiff 
 was delayed onihis journey, and obliged to take a more circuitous route (9), 
 or sustained some other special damage (2). So. case is the proper remedy 
 for disturbing a party in the possession of a pew in a church ; but no ac- 
 tion for such disturbance can be maintained unless the pew were annexed 
 to a house in the parish (r). Perhaps trespass may be sustained if the 
 pew to which the plaintiff is entitled as appurtenant to his messuage be 
 broken (s) (3) ; and that form of action may be adopted by the erector 
 of a tombstone against a person who wrongfully removes it from the 
 church-yard, and erases the inscription (^). 
 
 Case is in general the remedy for disturbing a party in the enjoyment of 
 an easement (m) (4), and it may be maintained in that instance, although 
 the right to the easement were conferred by a written agreement, which is 
 stated in the declaration, and which stipulates for the enjoyment of the 
 easement {x"). It lies for disturbance, obstruction, or other injuries, to 
 offices, franchises, ferries, markets, or tolls, or for not grinding at an an- 
 cient mill, &c. (y). And it may be maintained for disturbing and injuring 
 the right to, and enjoyment of, an ancient decoy Qz) ; but no- action is 
 sustainable for frightening away game from a preserve (not being a fran- 
 chise), or for disturbing a rookery (a). 
 
 An action on the case is frequently given by the express provisions of Oaastat- 
 some statute to a party aggrieved (&) ; and it has even been decided that "'^• 
 
 (m) 2 Young & Jerv. 391. & R. 318. An easement can be granted 
 
 (n) Ante, 131. by deed only id. 
 
 (0) Com. Dig. Action, Case, Disturbance, (x) 3 Wils. 348; 6 B. & C. 273; 9 D. & E. 
 A. 1. 265, S. C.;on«e, 126;127. 
 
 (p) Com. Dig. Action, Case, Disturbance, (y) See Com. Dig. Action, Case, Disturb- 
 
 A. 2. ance, and Action, Case, Nuisance; 6 M. & 
 
 (q) 9 Moore, 489. Sel. 69. See many instances of actionable 
 
 (r) 5 B. & A. 356; 8 B.. ^ C. 294; 2 M & obstruction or disturbance of a party in the 
 
 E. 322, S. C. exercise of a right put by Holt, C. J.„ 11 East, 
 
 (s) See 2 Rol. E. 140; Palm. 46; per Best, 576, note. 
 
 C. J., 8 Bing. 137, 188. (z) 11 East, 571; 2 Campb. 258. 
 
 (0 8 Bing. 136. (n) 4 D. & R. 518. 
 
 (u) 5B. & A. 361; 5 B.& C. 221; 7 D. & (i) Com. Dig. Action upon Statute, A. F. 
 
 E. 783, S. C; 8 B. & C. 294, 295; 3 IM. and Pleader, 11. s. 1 to 2, s. 30. 
 
 (1) Lambert v. Hoke, 14 Johns. 383; Shafer v. Smith, 7 Har. & Johns. 67. Case lies for 
 obstructions to a right of way appurtenant to an estate leased at will, in favor of the lessor, on 
 proving actual damage, Cushing v. Adams, 18 Pick. 110. 
 
 (2) Martin v. Bliss, 5 Blackf. 35. 
 
 (3) See Gay ii. Baker, 17 Mass. 435. It was decided in that case that in an action of trespass 
 for pulling down and destroying the plaintiff 's pew in a town or parish meeting house, the de- 
 fendant might justify under the town or parish, which had voted to alter or pull down and re- 
 build the house. See Howard v. First Parish in N. Bridgewater, 7 Pick. 138; Wentworths. 
 Canton, 3 Pick. 344; Daniel v. Wood, 1 Pick. 102; Kimball v. Kowley, 24 Pick. 847. 
 
 (4) Wilson V. Wilson, 2 Vermont, 68. 
 
143 OF THE FORMS OP ACTIONS. 
 
 where a navigation act empowered the company to sue for calls, &c. by 
 ^' cia%^^ action of debtor on the case, that an action on the case in tort might be sup- 
 ported, though the defendant were thereby deprived of the means of avail- 
 ing himself of a set-oflf (c). Whenever a statute prohibits an injury to an 
 individual, or enacts that he shall recover a penalty or damages for such 
 injury, though the statute be silent as to the form of the remedy, this action, 
 or in some instances an action of debt («i), may be supported (e) ; as on the 
 statute (/) at the suit of a landlord against a sheriff, for taking goods under 
 an execution, without paying a year's rent (g) ; and on the statute of Win- 
 ton (A) at the suit of a party robbed against the hundred ; or upon the Black 
 Act, or the Riot Act (i) ; or on different statutes relative to irregularities 
 in making or disposing of a distress (A;),&c. In these and other instances 
 case may be supported by implication ; and if a statute give a remedy in 
 the affirmative, without a negative expressed or implied, for a matter which 
 was actionable by the common law, the party may sue at common law, as 
 well as upon the statute (Z) (1). But in some instances the statute pre- 
 scribes a particular remedy, in conferring a new right, or creating a liabil- 
 ity ; and in that case the remedy pointed out, and no other, can be pur- 
 sued (m). In many cases the common law remedy is altered by a statute. 
 Thus the 43 Geo. 3, c. 141, enacts, that in all actions against any justice 
 of the peace for any conviction, &c. which may have been quashed, or for 
 any matter done by him for carrying it into effect, the plaintiff shall not 
 recover more than the sum levied under the conviction, and 2d daniages, 
 unless it be expressly alleged in the declaration, which shall be in an ac- 
 tion on the case only, that such acts were done maliciously, and without 
 any reasonable cause («) . We have seen that a common informer cannot 
 sue unless an action be expressly given to him .(o) . 
 Of the ad- '^^^ judgment of Lord EUenborough, 0. J., in the case of Govelt v. 
 y&jitiiges ot Radnidge (jo) explains the advantages arising in many instances ft'om the 
 this action, adoption of the action on the case, in preference to the action of assum- 
 renTO to ®^*» ^'^^- " there is no inconvenience in suffering the party to allege his 
 others, gravamen as a breach of duty arising out of an employment for hire, and tO' 
 [ *144 ] consider that breach of duty as tortious negligence, *instead of considering 
 the same circumstances as forming a breach of promise implied from the 
 same consideration of hire. By allowing it to be considered in either way, 
 according as the neglect of duty or the breach of promise is relied upon as 
 the injury, a multiplicity of actions is avoided ; and the plaintiff, according 
 
 (c)7T. R. 36. Against the parish, 11 East, 352, &c. Against 
 
 (rf) Ante, 112. the hundred, 12 East, 244; see 57 Geo. 3, o. 
 
 (c) Supra, note (q); 10 Co. 75 b; 2 Inst. 12; 7 & 8 Geo. 4. u. 31; 3 Geo. 4,c. 33. 
 
 486 ; 2 Salk. 451 ; 6 Mod. 26. (fc) Ante, 138. 
 
 (/) 8Ann. c. 14. (Z) Com. Dig. Action upon Statute, C. 
 
 (g-) Dougl. 665; see 3 B. & A. 440, 645; (m) See ante, 112. Smith v. Woodman, 8 
 
 7 Price) 666, 690. . Foster, N. H. 520. 
 
 (ft) 13 Edw. 1, St. 2. c. 1, 2; 2 Saund. 374, (»i) See 12 East, 67. 
 
 876; Com. Dig. Pleader, 2, s. 1. (o) Ante, 112. 
 
 (t) 9 Geo. 1, c. 22, s. 7; 3 East, 400, 457. {p) 3 East, 70. 
 
 (1) Aoc. Almy v. Harris, 6 .Johns. 175; Farmers' Tump. Company d. Coventry, 10 Johns. 
 889; Scidmore v. Smith, 13 Johns. 322. But in Pennsylvania, by the 13th section of the Act 
 of 21st March, 1806, entitled, " An Act to regulate arbitrations," (Furd. Dig. 2. 3 Sm. Laws, 
 832,) It IS provided, " that in all cases vphere a remedy is provided, or duty enjoined, or any 
 thing directed to be done by any Act or Acts of Assembly of this Commonwealth, the directions 
 of the said Acts shall be strictly pursued, and no penalty shall be inflicted, or any thing done 
 agreeably to the provisions of the common law in such oases further than shall be necessary for 
 carrying such act into effect, Brown v. The Commonwealth, 8 Serg. & Kawle,873; Commop- 
 wealth V. Evans, 18 ib. 426. • e 
 
I. ON THE CASE. 144 
 
 as the convenience of his case requires, frames his principal count in such '• <«» Mm 
 a manner, as either to join a count in trover therewith, if he have another °^^^- 
 cause of action other than the action of assumpsit, or to join with the as- 
 sumpsit the common counts, if he have another cause of action to which 
 they are applicable." Other advantages may also sometimes ensue from 
 the adoption of case instead of assumpsit, viz. that in the former action 
 the defendant cannot always plead in abatement the non-joinder of other 
 parties as defendants (g-) : and the plaiatiflf in case will in general be enti- 
 tled to a verdict if he prove one of several defendants to be liable, whereas 
 a different rule prevails in an action of assumpsit (r). If a party has ob- 
 tained goods upon a fraudulent contract, whereby credit was to be allowed, 
 he should be sued in case, at least before the expiration of the credit, as 
 assumpsit cannot be maintained during its currency (s). So if a set-off be 
 apprehended (<), or the defendant's certificate would be pleadable in bar 
 (m) to an action of assumpsit, it would in some cases be most advisable, if 
 possible, to avoid it, by suing in case (1). And again, where there has 
 been a fraud and it is supposed that the statute of limitations will be set 
 up as a defense, an action for the fraud is perhaps preferable to an action 
 of assumpsit ; as there is reason to contend that the statute only begins to 
 run from the time the fraud is discovered {x) ; and on account of costs, 
 case is frequently preferable to trespass, as in the former action the plain- 
 tiff is entitled to full costs though he recover less than 40s. damages, 
 whereas in some actions of trespass for assault and battery, or trespass to 
 land, if the damages be under 405. the plaintiff is not entitled to full costs 
 (y). On the other hand, there are some disadvantages attending the ac- itgdisad- 
 tion on the case, on account of the generality of the pleadings, and of the vantages, 
 circumstance of the general issue being the usual plea, which put the plain- 
 tiff on proof of the whole of the allegations in his declaration, and left 
 the defendant at liberty to avail himself of any matter of defense at the 
 trial, without apprizing the plaintiff by his plea of the circumstances on 
 which it is founded. But this objection was removed by Reg. Gen. Hil. 
 T. 4, W. 4, reg. 5, which now compels a defendant to plead specially 
 almost every description of defense, f 
 
 Where cattle of the defendant have trespassed in the plaintiff's *land, [ *145 ] 
 in consequence of the defendant's neglect to repair his fences, the plaintiff 
 has an election to proceed in case or trespass (jz) ; or to distrain. If the 
 real damage exceed 40s. or the circumstances, be of such a nature that a 
 verdict for that amount may be anticipated, so as to carry full costs, an 
 action of trespass may be advisable in preference to an action on the case, 
 in order that the trial may be upon some particular point in issue (a), still 
 narrowiag the evidence more than in the action on the case. It is not 
 advisable to distrain where the title to the locus in quo is doubtful, but the 
 party should proceed by action of trespass, or on the case (6), and the 
 same observations apply where a right of common is in dispute (c). 
 
 (7) Ante, 86. & A.626. 
 
 (r) See ante, 44, 86. (i/) 6 T. R. 129. 
 
 (s) 9 B. & C. 59. (a) 1 Salk. 335. 
 
 CO Ante, 100. (o) 2 Saund. 284 d. 
 
 (a) Ante, 53, 64, 100. (A) 1 Saund. 346 e, n. 2. 
 
 (ar) 4 Moore, 508; 2 B. & B. 73, S. C. ; 3 D. (c) Id. 
 
 & R. 322; S. C. see 2 B. & C. 149, 259; 3 B. 
 
 (1) See Downer v. Eggleston, 15 Wend. 51. 
 t See American Editor's Preface. 
 
 Voj^ I, 2% 
 
145 OF THE FORMS OF ACTIONS. ' 
 
 I. ON SHE The declaration in an action on the case ought not in general to state 
 OABE. ^jjg injury to have been committed vi et armis, nor should it conclude 
 Pleadings contra pacem (d) ; in which respects it principally differs from the declara- 
 m^generali ^.^^ ^^ trespass. In other points the form of the declaration depends on 
 the particular circumstances on which the action is founded, and conse- 
 quently there is a greater variety in this than any other form of action. 
 The leading rules will be stated when we inquire into the form of the de^ 
 claration in general. It is open to this commendation that the statements 
 are not fictitious as in trover, and that it truly and specifically discloses 
 the grounds upon which the action is founded. The plea in this action 
 until recently was principally the general issue, not guilty ; and under it 
 (except in an action for slander, and a few other instances) (e), any mat- 
 ter might be given in evidence, but the statute of limitations. But since 
 the pleading rules, H. T. 4, W. 4, f the general issue only puts in issue 
 the wrongful act, and not the right (/), and most grounds of defense 
 must be pleaded specially. Th& judgment is, that the plaintiff do recover 
 a sum of money ascertained by a jury, for his damages sustained by the 
 committing of the grievances complained of, and full costs of suit; to 
 which the plaintiff is entitled, although he recover a verdict for less than 
 405. damages (g-) ; unless the judge certify under the statute (A) ; a cir- 
 cumstance whicl(^ we have already observed frequently renders this action 
 preferable to that of trespass. 
 
 [•146] *a TROVER (1) 
 
 n. MOVIE. The action of trover or conversion was, in its origin, an action of tres- 
 Generalob- pass on the case for the recovery of damages against a person who had 
 setvations. fpund goods, and refused to deliver them on demand to the owner, but 
 converted them to his own use ; from which word finding {trover) the 
 remedy is called an action of trover. The circumstance of the defend- 
 ant not being at liberty to wage his law in this action, and the less degree 
 of certainty requisite in describing the goods, gave it so considerable an 
 advantage over the action of detinue, (which, before the late enactment, 
 was subject to the defense of law wager), that by a fiction of law actions 
 of trover were afr length permitted to be brought against any person who 
 had in his possession, by any means whatever, the personal property of 
 another, and sold or used the same without the consent of the owner, or 
 refused to deliver the same when demanded. The injury lies in the con- 
 version and deprivation of the plaintiff's property, which is the gist of the 
 action, and the statement of the finding or trover is now immaterial, 
 and not traversable (i) ; and the fact of the conversion does not necea- 
 
 (d) Com. Dig. Action on Case, C. 3, 4, A. withstanding the action be brought under the 
 
 (e) ISaund. 130, note 1: Willes, 20. H Geo. 2, c. 19, s.bywhich it is enacted, that 
 _ (/) Frankum v. Earl of Falmouth, 1 Har- in case plaintiff obtained a verdict, he shall bfe 
 
 ™?"; i 6 Car. & P. 529 ; Bosanquet's Rules, entitled to full costs. 5 B. & Aid. 786 : 1 D. 
 (ff) 6T. R. 126; Tidd. 9thed. 963. & E. 413, S. C 
 
 ThL^L*??"';.°-?5™?'.^^^- ^^^' ^* ^- (^) 8Bla. Com. 152, 153, 1 New Rep. 
 inis statute depnves plamtiflp of costs, not- 140; Bui. N. P. 32; 8 WiU. 336, 
 
 lO^^Z^r""^ trespass debonU asportatit lies, trover will Ue. Prescott v Wright, 6 Mass, 
 J», fierce v. Benjamin, 14 Pick. 356. ^ ^ -i 
 
 t See American Editor's Pre&ce. 
 
SI. TROVER. ti4 
 
 sarily import an acquisition of properly in the defendant (A). It is an «. sSW'vtat. 
 action for the recovery of damages to the extent of the value of the thing 
 converted (i). The object and result of the suit are not thei recovery of 
 the thing itself, which can only be recovered by action of detinue or re- 
 plevin (to) (1). Lord Mansfield thus defined this action (w) ; " in form 
 it (i. e. the trover) is a fiction ; in substance it is a remedy to recover the 
 value of personal chattels wrongfully converted by another to his own 
 use ; the form supposes that the defendant might have come lawfully by 
 it, and if he did not, yet by bringing this action the plaintiff waives the 
 trespass ; no damages are recoverable for the act of taking ; all must be 
 for the act of converting. This is the tort or maleficium, and to entitle 
 the plaintiff to recover, two things are necessary : Is^, prope-fty in the 
 plaintiff (2) ; Idly, a wrongful conversion by the defendant" (3). We 
 will consider this action with reference, 1st, to the thing converted; 2dly, 
 the plaintiff 's right of property therein ; and 3dly, the nature of the t^ 
 jwn/, and by whom committed (4). 
 
 This action is confined to the conversion o! goods or personal chattels. 1st. The 
 It does not lie (or fixtures eo nomine ; nor for injuries to land or other real property 
 property, even by a severance of a part of what properly belongs to the *^*°'*"^' 
 freehold, unless there has also been an asportation; but the form of 
 action in these cases should be trespass (o), (or case *where the interest [ *14t J 
 in the property is in reversion) (ja). An incoming tenant, though entitled 
 to the growing crops, cannot support trover against the outgoing tenant 
 for taking them away, nor is that form of action proper to try a right to 
 land {q). But if after the severance from the freehold, as in case of trees 
 or fixtures, or earth, the property severed be taken away ; or if coals dug 
 in a pit be afterwards thrown out, trover may be supported (r) (5). So 
 
 (fc) 3 B. & Aid, 687. Covenant not to move tiiem, 1 Taunt. 19; 1 B> 
 
 (0 See 3 Campb. 477; 1 C. &P. 626. & C. 608; 4 D. & R. 62, S. C. 
 
 (fl!) 3 B. & Aid. 687; Willea, 120; 2 Stark. (p) Ante, 134, 139. 
 
 Rep. 288. (?) 16 East, 77, 79; 1 Prioft, 53'. Biit 
 
 (ra) 1 Burr. 31; 1 Bla. Rep. 67, 68^ and where oet-taiu parts of a machine had been 
 
 see 1 M. & P. 556. put up by the tenant daring his term, and 
 
 (0) Bao. Ab. Trover, B. ; 2 B. & Aid. 167. were capable of being removed without either 
 But trover lies for salt pans, though fixed in injuring the other parts of the machine or the 
 the floor of a building; and whenever the fixed building, and had been usually valued between 
 instrument, engine or utensil was an accessory the outgoing and incoming tenant, it was held,' 
 to a matter of a personal nature, it is oonsid- that these were the gooc)^ and chattels of the 
 ered as personalty, 3 East, 53, 54, cites 1 outgoing tenant, for which he might maintain 
 Hen. Bla. 259; and see 2 B. & Aid. 165. See trover, 2 B. & Aid. 165. As to removal after 
 Morgan v. Arthurs, 3 Watt's Rep. 140; Le- tenancy, 2 B. & C 78 79; 3 D. & R. 257, 
 mar v. Miles, 4 Watt's Rep. 330; Gray v. 258,8. C. 
 
 Holdship, 17 Serg. & Rawle, 415; White ». (r) Com. Dig. Biens, R.; Bac. Ab. Trover, 
 
 Arndt, 1 Whart. Rep. 91. Fixtures between B.; 7 T. R. 13; Bui. N. P. 44; 4 B. & Aid. 
 
 landlord and tenant, 3 East, 28. A veranda,, 206. When a landlord has no right to re- 
 
 2 Stark. 403. Limekilns, 2 B. & a 608.* cover trees he wrongfully cuts doWn, 2 B. & 
 
 Fixtures as between the vendor and vendee of C. 897; 8 D. &. R. 651, S. C. 
 a house, 2 B. & a 76; 8 D. & R. 255,8. C. 
 
 (1) Norris «. Beckley, 2 Con. Ct. 228. Converting grain, wrongfully taken, into whiskey, 
 is a change of the property, and the whiskey beltwlgs to the ilianufaolurer. Silsbury*. M'CooA, 
 6 Hill, 425. 
 
 (2) See Hastier d. Skull, 1 Taylor, 152; Purdy v. M'Callough, 3 Barr, 466; 
 
 (3) See Glaze v. M'Million, 7 Porter, 279; Taylor v. Howall, 4 Blackf. 317. 
 
 (4) Trover will lie against different individuals for successive conversions of the same prop- 
 erty. But the plaintiff can receive but one satisfaction. Matthews v. Menadger, 2 M'Leati', 
 145. 
 
 (5) Trover lies for a building removed from the freeholii'i if it had been erected under am 
 agreement that it should be treated as personal property. Smith v. Benson, 1 Hill, 176. 
 
147 OP THE FORMS OF ACTIONS. 
 
 n. TRovKR. if a tenant, during his tenancy, remove a dung heap, and at the time of 
 1st. The so doing dig into and remove virgin soil that is beneath it, the laadlord 
 property ^ay maintain either trespass de bonis asportatis or trover, for the removal 
 affected, ^j ^^^ ^-^^^^^ ^^jj ^^>^ ^y). It lies for an unstamped agreement {t ); and 
 for a deed relating to land(M) ; and books of account (x) (2); but in 
 these instances detinue is the more usual, and often the preferable remedy. 
 Where goods have been sold or money has been paid by a debtor, in con- 
 templation of his bankruptcy, by way of fraudulent preference to his cred- 
 itor, it may be safer for the assignees to proceed for the recovery thereof 
 in trover, rather than by action of assumpsit for goods sold by the bank- 
 rupt, or money had and received to his use ; because, by adopting the lat- 
 ter form of action they might enable the defendant to avail himself of his 
 original debt as a setoff Qy) ; but the set-off would not hold against a 
 count for goods sold by the assignee as such, or money had and received 
 to their use as assignees, after the bankruptcy (z). Trover is preferable 
 to an action of assumpsit, when the defendant has converted the produce 
 of a bill, &c. and has become bankrupt, and obtained his certificate ; be- 
 cause to the former action the certificate could not afford a defense (o) . 
 
 The general rule is clear, that to support trover the plaintiff must have 
 the right to some identical or specific goods (6) (3). Trover does not lie 
 [ "MS ] for money had and received generally (c) ; but it may be maintained *for 
 so many pieces of gold or silver, though not in a bag ; because damages, 
 and not the goods or articles themselves in specie are the object of the 
 suit (jT) ; and in that case the defendant can only redeem himself by tender- 
 ing to the plaintiff the same specific pieces (e) . And trover lies for an 
 undivided part of a chattel, as three-fourths of a ship (/). Although a 
 contract for the sale of goods be complete and binding under the Statute 
 against Frauds, yet the vendee acquires no property in them which can 
 enable him to maintain trover, if any material acts remain to be done before 
 the delivery to ascertain or distinguish the quantity or exact amount of the 
 price to be paid by the purchaser. ' Thus, if a portion of an entire bulk of 
 goods be sold, and be not in its nature ascertainable without weighing, or 
 
 (») Higgon V. Mortimer, 6 Car. & P. 616. (z) See 10 East, 418; 16 East, 185. 
 
 (0 4 Taunt. 865. (a) 6 T. R. 695; 7 Bing. 63. 
 
 (a) 1 Wils. 106; 2 T. B. 708; 1 Bing. 45; (A) 5 B. & Aid. 654; 1 D. & R. 285. S. C. 
 
 7 Moore, 304, S. C. (c) 5 B. & Aid. 652; 1 D. &. R. 282, S. C. 
 
 (i) 2 Stark. B. 286. As to the conversion (d) Vin. Ab. Action, Trover, K. ; Bao. Ab. 
 
 of fixtures, see Longstaff i>. Meagoe, 4 Nev. Trover, D. Foreign Coin, 4 Taunt. 24. 
 
 & Man. 211. (e) Per Abbott, C. J., 5 B; & Aid. 654; 1 
 
 (y) 4 T. R. 211 ; 2 Hen. Bla. 145; Cullen, D. & R. 287, S. C. 
 
 201, 202; See 16 East, 140; 3 M. & SeL 199. {/) 4 Campb. 272. 
 
 (1) Where a farm is taken by a tenant for agricultural purposes, the manure made upon it 
 belongs to the farm, and not to the tenant, and if at the expiration of his term, the tenant re- 
 move or dispose of it, case is the appropriate remedy for the injury. Middlebrook v. Corwin, 
 15 Wendell, 169. 
 
 Trover lies for manure, lying upon the ground and not incorporated with the soil. Finkham 
 V. Gear, 3 N. Hamp. 484. See'Stone d. Proctor, 2 Chip. 116. 
 
 Cutting grovfing corn and carrying it away, will be a conversion of it to sustain trover. Nel- 
 son V. Burt, 15 Mass. 204. 
 
 (2) A debtor, who has made copies of his creditors' account against him, may, if the cred- 
 itor obtain possession of such copies, and refuse to redeliver them to the debtor, sustain trover 
 therefor against the creditor. FuUam ». Cummings, 16 Vermont, 697. Trover may be main- 
 tained for a note which has been paid and by mistake left in the hands of the holder. Pierce v. 
 Gilson, 9 Vermont, 216. 
 
 (8) As to the evidence by which a party will be estopped to say he has not the specific arti- 
 cles he has sold, see Chapman v. Searle, 8 Pick. 38. 
 
n. TEOVES. 148 
 
 other act separating and distinguishing it from the rest ; as in the case of the i'- tbovbb. 
 sale of ten out of twenty tons of flax, the same being in mats of an une- "^^^ p^p- 
 qual sizeandquantity(o-);orofsomany tons ofa larger quantity of oil (A); gj^" *"*" 
 or of bark at so much per ton (i) ; the vendee could not maintain trover 
 until his portion had been ascertained and set apart. The same rule 
 holds in the case of a contract to manufacture goods, as to build a car-* 
 riage, &c. and no property passes in the goods until finished, or consid- 
 ered and treated by both parties as finished, although the value has been 
 paid (A). In these cases assumpsit upon the contract is the remedy. 
 
 In other respects, trover in general lies for the conversion of any per- 
 sonal property in which the plaintiff has a general or special property (Z) ; 
 but it does not lie for the conversion of record, because a record is not 
 private property ; but it may be supported for the copy of a record, which 
 is private property (m) (1). 
 
 In order to support this action the -plaintiff must, at the time of the con-' 2dly. The 
 version (w), have had a complete property, either g-ewerai or special (2), in plai°ti^ * 
 the chattel ; and also the actual possession (3), or the right to the imme-' 
 diale possession of it (o) (4). 
 
 {g) 2 M. & Sel. 397; 2 Campb. 240; 5 (I) For what it lies in general, See Com. 
 
 Taunt. 617; 4 Taunt. 644. Dig. Action, Case, Trover, C; Bao. Ab. Tro- 
 
 (A) 5 Taunt. 176: 13 East, 522. vef, D.; Vin. Ab. Action, Trover, K.; Bui. KT- 
 
 (i) 5 B. &C. 857; 8 D. & R. 693, S. C; 6 P. 32 to 49. 
 
 B. & C. 388; 9 D. &. R. 298, S. C; 8 B. & (m) Hardr. 111. 
 
 0. 277; 2 M. & R. 292, S. C; 9 B. & C. (n) 2 T. R. 750; 4 Bing. 106. 
 
 145. (0) 2 Siiund. 47 a, note 1; ante, 132, 139*, 
 
 (fc) 1 Taunt. 318 ; 5 Bing. 270; see 7 B. &. Selw. N. P. Trover; 4 B. & C. 941; 7 B. & R. 
 
 C.26; 9D. &E. 791. S. C. 407, S. C. 
 
 (1) As to trover for the title deeds of an estate, bonds, billsof exchange, &c., see Yea u. Field, 
 2 Term. 1708; Towle v. Lovett, 6 Mass. 394; Arnold v. Jetfrayson, 2 Salk. 654; Goggesly v. 
 Cuthbert, 2 New, 170; Benjamin w. Bank of England, 3 Campb. 417; Kingman v. Pierce, 17 
 Mass. 247; Day «. Whitney, 1 Pick. 503; Jarvis v. Rogers, 15 Mass. 389; Petit u.Bouju, 1 
 Missou. 64; Besherer v. Swicher, 2 Penn. 748; Sawyer v. Baldwin, 11 Pick. 492; Stebbins v. 
 Jennings. 10 Pick. 172; Sudbury v. Stearns, 21 Pick. 148; Tilden v. Brown, 14 Vermont, 164; 
 Pierce «. Gilson, 9 Vermont, 216; Ladd i>. Hill, 4 ib. 164; Mercer v. Jones, Id. 477; Todd jj* 
 Crookshanks, 3 Johns, 432; Murray v. Burling, 10 Johns. 172; Clowes v. Hawley, 12 Johns. 
 484; Comparet v. Burr, 5 Blackf. 419; Moody v. Keener, 7 Porter, 218. 
 
 (2) Dillenback v. Jerome, 7 Cow. 294; Ordiorne v. Colley, 2 New Hamp. 66; Debow v. Col- 
 fax, 5 Halst. 128. But it is not necessary that the plaintiff's interest in the chattel should have 
 continued until the commencement of the suit. Barton ii. Dunning, 6 Blackf. 209 j Grady v. 
 Newby, 6 Blackf 442. 
 
 When on a sale of goods the property vests in the purchaser so that he may maintain trover 
 against the Tender, see Selw. N. P. 1269, 1270. 2 Esp. Dig. 40; Owenson v. Morse, 7 Term 
 60; Hanson v. Meyer, 6 East, 614; Whitehouse v. Frost, 12 East, 614J Austin d. Craven, 4 
 Taunt. 644; Zwinger v. Samuda, 1 Moore, 12; 7 Taunt. 265; Chapman v. Searle, 3 Pick. 38; 
 Farmer's Bank v. McKee, 2 Barr. 318; Jones K. Morris. 7 Iredell, 370. Further as to the prop- 
 erty in the plaintiff requisite to support this action, see Hunter u. Rice, 15 East, 100; Heyl ». 
 Burling, 1 Caines, 14; Hostler v. Skull, Taylor, 152; Floyd v. Day, 3 Mass. 403. 
 
 (3) Vide Smith v. Plomer, 15 East, 607. In trover, possession whether rightfully or wrong- 
 fully obtained, is a sufficient title in the plaintiff as against a mere stranger. Knapp v. Win-' 
 Chester, 11 Vermont, 351 ; Swift v. Mosely, 10 ib. 208. See CoflSn v. Anderson, 4 Blackf. 397, 
 410; Duncan v. Spear, 11 Wendell, 54; Hall v. Amos, 5 Monroe, 89. 
 
 (4) Fairbanks v. Phelps, 22 Pick. 635; Hunt v. Holten, 13 Pick. 216; Foster v. Gorten, 5 
 Pick. 185. The plaintiff must show a right to the possession at the time of the conversion. 
 Burton o. Tannehill, 6 Blackf. 470; Caldwell o. Cowan, 9 Ycrger, 262; Gage v. Allison, 1 Brev- 
 ard, 495 ; Andrews v. Shaw, 4 Dev. 70 ; Grady v. Newby, 6 Blackf. 442 ; Lewis v. Mobley, 4 Dev, 
 & Batt. 323; Redman v. Gould, 7 Blackf 361. In the case of a general as well as special prop- 
 erty, the action may in most cases be brought either by the general or special owner, and judg- 
 ment obtained by one is a bar to an action by the other. Smith v. James, 7 Cow. 328. In this 
 action the defendant may show title in a stranger paramount to that of the plaintiff. Kennedy 
 
 V. Strong, 14 Johns. 182. See Williams v. Belthany, 2 Eep. Con. Ct. 415; Jones v. Sinclair, 2 * 
 N. Hamp. 819. A mortgagee in possession of chattels may sustain trover for their conversion. 
 
148 a ' OF THE P0RM3 OP ACTIONS. 
 
 n. TBovEB First. It may be premised that it is not essential to the support of this 
 2. The action, that the absolute ownership and special property or interests should 
 plaintiff's exist in the same person : either will suffice to support this action {p). But 
 ^rof an "^^ shall presently remark, that if there be an outstanding special property 
 absolute^" in another, the general owner should sue *in case for the injury to his re- 
 property version, not in trover for the value of the goods (9). 
 '°^^ Without an absolute or special property, this action cannot be' main' 
 
 f 'HQ 1 tained. A right of immediate possession before or at the time of the con- 
 version is essential (r) (1). Therefore, as we have seen, trover cannot be 
 supported by a party in a suit for a record (s). Nor can a tenant in tail, 
 expectant on the determination of an estate for life, without impeachment 
 for waste, bring trover for timber which grew upon and was severed from 
 the estate, for the tenant for life has a right to the trees immediately they 
 are cut down (i). And the trustees of an estate per autre vie cannot main- 
 tain trover for trees felled upon the estate, for when felled the trees be- 
 longed to the owner of the inheritance (m). A landlord has, generally 
 speaking, in legal consideration, even during the term, the possession of 
 the timber growing on the estate, if it be excepted in the lease ; so that 
 he may in such a case maintain trespass even during the term, if it be cut 
 down ; and even if the timber be not excepted in the lease, the lessor has 
 so far the possession of it when cut down by another, though cut pending 
 the term, that if it be carried away, he may maintain trespass or trover ; 
 the interest of the lessee in the trees determining instantly they are cut 
 down (x) (2) . But where a landlord during the term wrongfully cut down 
 
 (p) Per Lawrence, J., T. R. 398. (0 1 T. R. 55. 
 
 (n) Post, 154; ante, 132. («) 1 New Hep. 25. 
 
 (r) Bloxam B.Sanders, 4 Bar. &. Cres.941; (x) 7 T. E. 13; 2 M. & Sel. 499, 500; 1 
 
 7 D. & B., 407, S. C. Saund. 322, n. 5; Vin. Ab. Trespass, S. pi. 
 
 (s) Supra; Hard. 111. 10; 1 Taunt. 191. 
 
 Reynolds o. Shuler, 5 Cowen, 323; Wolf ». O'Farrel, Const. Rep 141. So he may sustain 
 trover for a conversion of them by a stranger, whilst in the possession of the mortgagor. Sny- 
 der ». Hilt, 2 Dana, 204. A mortgage of goods is a transfer which vests the general property in 
 the mortgagee ; and, when there is no express stipulation to the contrary, the right of possession 
 follows the right of property and the mortgagee may maintain trespass against one who wrong- 
 fully takes the good's away. Brackett ». Bullard, 12 Metcalf, 308; Holly v. Huggeford, 8 Pick. 
 73. But a mere removal of mortgaged property in good faith, at the request of the mortgagor 
 who was in possession, will not be a conversion of it. Strickland v. Bassett, 20 Pick. 415; Bur- 
 ditt V. Hunt, 25 Maine, 419. A mortgagee may sustain trover agiinst the mortgagor after the 
 title of the mortgagee has become absolute, upon the refusal of the mortgagor to deliver them. 
 Gifford V. Ford, 5 Vermont, 532. And so the mortgagee may maintain trover against the mort- 
 gagor before the title becomes absolute, where there is no agreement that the mortgagor shall 
 retain possession. Ripley v. Dolbier, 6 Shepley, 382. 
 
 If the mortgagor of goods, who is intrusted with the possession , intermix them, purposely of 
 through want of proper care, with his own goods, so that they cannot be distinguished, and con- 
 sign them for sale to a third person who sells them, the mortgagee is entitled to recover of the 
 consignee the value of the whole in trover. Willard ». Rice, 11 Metcalf, 493. See White o. 
 Phelps, 12 N. Hamp. 382, 
 
 (1) See ante, 148, in note; Burton v. Tannehill, 6 Blackf. 470; Caldwell ». Cowan, 9 Terger, 
 262; Gage v. Allison. 1 Brevard, 495; Andrews ». Shaw, 4 Dev. 70; Fairbanks v. Phelps, 22 
 Pick. 535; Grady v. Newby, 6 Blackf. 442. ' 
 
 If one who has a life estate in a personal chattel exchanges it with a third person as his abso- 
 lute property, he, who has the interest in remainder, cannot maintain trover for the conversion. 
 Nations v. Hawkins, 11 Alabama, 859. 
 
 (2) Mather v. Ministers of Trinity Church, 8 Serg. & Rawle, 509. See Baker v. Howell, 6 
 Berg & Rawle, 476. It has been decided in Maine, that where a tenant at will erected a dwel- 
 Img house, and other buildings on the land, with the express assent of the landlord, and died, 
 and his admmistrator sold them to a stranger, the purchaser might maintain trover for them 
 against the owner of the land. Osgood ». Howard, 6 Greenl. 462. 
 
 Bhult V. Barker, 12 Serg. & Eawie, 272. Vide Davies ». Connop,. 1 Price's Exch. 57. Trover 
 
II. TBOVBB. 149 
 
 oak pollards, unfit for timber, it was decided that, as the tenant for life »■ troteb, 
 or years would have been entitled to them if they had been blown down, 2.. The 
 and was entitled to the usufruct of them during the term, the lessor could ?n*«esV* 
 not, by his own wrong, acquire a right to the pollards ; and therefore could '° ^^^ ' 
 not, nor could his vendee, sue the tenant for taking them away («/). 
 
 The property in title-deeds generally accompanies the ownership of the 
 estate ; and therefore the person who was entitled to the estate at the 
 time of the wrongful detention of or injury to the deeds, should be the 
 plaintiff (2;). 
 
 The absolute and general owner of goods may maintain trover, although 
 he had sold or bailed them under a void contract, as to a married woman, 
 because he still retains a present right (a). But if the owner has bailed 
 the goods to the defendant, and before a conversion of the goods by the 
 latter the bailor sells them, or otherwise ceases to be the owner, the ac- 
 tion should be brought in the name of the person who was the proprietor 
 at the time of the conversion (6). A party who purchases goods under a 
 distress for rent, valid *though irregular, may maintain trover (c) ; and [ *150 ] 
 where A. sold goods to B. which were wrongfully in C.'s possession, and 
 
 B. paid for them, and on the latter demanding the goods, and informing 
 
 C. of the sale, the latter said he should not deliver them to any person ; 
 whereupon A. and B. rescinded the sale, and the price was repaid, it was 
 held that A. might sue C. in trover {d). 
 
 The verbal gift of a chattel, without actual delivery, is not suf&cient to 
 pass the property to the donee, so as to enable him to sue the donor (e) ; 
 although it may perhaps give the donee a sufficient special interest to en- 
 able him to sue a mere wrong-doer (/). Nor is it an award that a chat- 
 tel should be delivered by A. to B., on the former being paid a sum of 
 money sufficient, per se, to pass the property, and entitle B. to maintain 
 trover, although he tenders the money, it being refused by A. (g-). And 
 we have already observed (A), that in the case of a sale of goods there 
 must be a specific right to some particular goods severed and distinguish- 
 ed from others ; and if there remain to be done upon the contract some 
 act to ascertain the quantity or price, the vendee cannot maintain trover 
 until that act be done (?) 
 
 Where goods, stolen were purchased in market overt, and sold by the 
 purchaser before the felon was convicted, it was decided that the owner 
 prosecuting to conviction could not maintain trover against the purchaser 
 under the statute (Je), which gives restitution to the owner who pz-osecutes 
 the felon to conviction, although he gave to the purchaser notice of the 
 robbery while they were in his possession ; for the property being altered 
 by the sale in market overt, was not revested in the owner until the con- 
 viction of the felon, but the defendant had parted with the possession be- 
 fore that time, and therefore could not be said to have converted the 
 
 (y) 5 B. & C. 897i 8 D. & R. 651, S. C. («) 2 B. & Aid. 551. 
 
 (?) 4 T. R. 231; 4 Bing. 106. (/) See 2 Saund. 47 a, and note(./), 6tli 
 
 (a) 15 East, 607; 2 Saund. 47 b. n. (/), edit.; 2 C. & P. 678. 
 
 6th ed. (g) 15 East, 100. 
 
 (A) 4 Bing. 106; ante, 67, (A) Ante, 147. 
 
 (c) 2 Bing. 334; see ante, 88. (j) Anle, 147, 148. 
 
 (d) 5 JVl. & Sel. 105, " (A) 21 Uen. 8, o. 11. 
 
 lies against an outgoing tenant, for corn cut by him after the expiration of his term, though 
 sown by him before that time, under the notion of being entitled to an away-going crop, Davies 
 V, Connop, Price's Esch., 53; Nelaon «. Burt, 15 JVIa93.204. 
 
150 OF THE POBMS OP AOTIONS. 
 
 II. TEOTER. plaintiff ^s goods (0(1)- ^^^ ^^ ^^^ sale was not in market overt, then if 
 2. The , the purchaser sell them again in market overt before coaviction of the 
 futerrat'* felon, and such purchaser had notice of the felony whilst the goods were 
 in his possession, he will be liable to an action of trover (m)(2). The 
 statute (ri) is confined to cases of felony ; therefore where goods are ob- 
 tained from a person by false pretences, and passed to another for a valu- 
 able consideration, the original owner is not entitled to them upon con- 
 viction of the offender; and if he has got possession of them, trover will 
 [ *151 J lie at the *suit of the purchaser (o). And if goods are obtained by false 
 pretences under color of a purchase, the vendee or his assignee acquires 
 no property, and after demand may be sued in trover (j»)(3). The action 
 does not lie to recover the value of goods delivered by the plaintiff, under 
 or in furtherance of an illegal contract, to which he is a party or privy (9). 
 The plead- Secondly. So a person having a special property in the goods may sup- 
 ings in port trover against a stranger who takes them out of his actual possession ; 
 general, as a sheriff (r) (4) ; a carrier (s) (5) ; a factor ; a warehouse-man {f) ; con- 
 "* signce (6) ; pawnee ; or trustee ; or an agister of cattle ; or a gratuitous 
 
 bailee (u) (7); or any person who is responsible over to his principal (re) (8) 
 
 {I) 2 Term Rep. 750. The pawnee of (o) 5 T. R. 175. 
 
 stolen goods is liable, 2 Camp. 336, note. The (p) 7 Taunt. 69; 9 B. & C. 60; 6 Mod. 114. 
 
 owner must always use his best endeavors to (q) 2 Bing. 814. 
 
 bring the offender to justice before he can sue (r) 2 Saund. 47, provided be remain in 
 
 the purchaser, 2 C. & P. 41. As to stolen possession, 1 M. & Sel. 711. 
 
 horses, 2 P. & .M. c. 7; 31 Eliz.c. 12. A con- (s) 1 Rol. Ab. 4; 1 Lord Raym. 276; Bui. 
 
 demnation of floods in the Exchequer alters the N. ij. 33; 2 Saund. 47 b, note, 
 
 property, T. Raym. 336; Carth. 327; 2 Bla. (0 1 M. & Sel. 147. 
 
 Rep. 981. (u) 1 B. & Aid. 59. 
 
 (m) Peer v. Humphrey. 1 Har. & Woll. 28. (x) 2 Saund. 47 b; 11 East, 626. 
 
 (n) 21 Hen. 8, u. 11. 
 
 ' (1) See Pisoataqua Bank u. Turnley, Miles, 313. 
 
 (2) An auctioneer, who innocently sells stolen goods, is liable to the owner in an action of 
 trover. Hoffman v. Carow, 22 Wendell, 285. 
 
 (3) Trover lies against a fraudulent purchaser, or his vendee with notice, without a previous 
 demand, or a tender of a note given in payment before the time of trial. Thurston v. Blaneh- 
 ard, 22 Pick. 18; Stevens v. Austin, 1 Metcalf, 557; Greene v. Russell, 5 Hill, 183. 
 
 Where goods are obtained under an invalid contract, trover will not lie while Miy action 
 founded on the existence of the contract is pending. Kimball v. Cunningham, 4 Mass. 502; 
 Peters v. Ballistier, 3 Pick. 495. But where it is discontinued it will not bar an action of trover. 
 Peters v. Ballistier, 3 Pick. 495. Trover does not lie in the case of a fraudulent exchange with- 
 out a return of all the property received. Kimball v. Cunningham, 4 Mass. 502. 
 
 Trover lies for goods which a creditor has received of his debtor, by fraud with an intent to 
 apply them in satisfaction of his debt, the property not being changed. Woodworth v. Kes- 
 sain, 15 Johns. 186. Trover lies against a person receiving goods and selling them, he acts 
 without fraud, and ignorance of the rights of the trueowner. Everett v. Coffin, 6 Wendell, 603, 
 
 (41 7 Cow. 297. Vide Barker v. Miller, 6 Johns. 195; Catlin v. Jackson, 8 Johns. 548; 
 Hotchkiss V. M'Vickar, 12 Johns. 403; Brownell r. Manchester, 1 Pick. 232 ; Caldwell «. Eaton, 
 5 Mass. 399; Blackley v. Sheldon, 7 Johns. 32; Pettes v. Marsh, 15 Vermont, 454. But it has 
 been held in New Jersey, that a sheriff cannot maintain trover for goods by virtue of a fieri 
 facias, and a levy thereon, without he has made a particular inventory of the goods, or has ta- 
 ken actual possession of them. Lloyd v. Wychoff, 6 Halst. 218; Brain v. Strait, Dudley, S. C. 
 237. See Dennie v. Harris, 9 Pick. 364; Amadou v. Myers, 6 Vermont, 308; Lowry v. Walker, 
 5 id. 181. See also Yates ». St. John, 13 Wend. 74. The receiptor of property attached, who 
 has the actual possession of it for safe keeping may sustain trover for it against a third person, 
 who takes it out of his possession, having no color or right. Thayer v. Hutchinson, 13 Ver- 
 mont, 504. 
 
 But see as to the keeper or receiptor to the sheriff, Ludden v. Leavitt, 9 Mass. 104; Warren v. 
 Leland, ib. 265; Commonwealth v. Morse, 14 ib. 217; Poole v. Symons, 1 N. Hamp. 289. 
 
 (5) 7 Cow. 297. 
 
 (6) Smith o. James, 7 Cow. 329; Everett v. Saltus, 15 Wendell, 474. 
 
 (7) Faulkner v. Brown, 13 Wend. 63. The finder of a chattel has a special property in it, 
 and may sustain trover against any one, who shall convert it, except the true owner. 
 M Laughhn v. Waite, 9 Cowen, 670; Clarke «. Malory, 3 Haxrine, 68. 
 
 (8) Trovillo n. HUford,6 Watts, 472. 
 
II. TROVER. 151 
 
 a churchwarden (?/) ; or the hirer of goods, however temporary the purpose n. trover. 
 for which they were hired may happen to be (ar). So a person who has 2. The 
 goods on the terms of sale and return, may sue for any damage done to P'aiiitiff 's 
 them by a wrong-doer whilst in his possession (a) . And a person who '" ^^^ ' 
 has the temporary property in goods, delivering them to the general owner 
 for a special purpose, may, after that purpose is answered, upon a de- 
 mand and refusal, maintain trover for them (&) (1). Where the consignor 
 of goods, upon the insolvency of the consignee, indorsed the bill of lading 
 to the plaintiff without consideration, to enable him to stop the goods in ' 
 transitu, it was held that the plaintiff had a sufficient property to maintain 
 trover against the wharfingers (c). So an executor de son tort, who has 
 not obtained probate at the time of trial may sue for a tort committed 
 to the property of the deceased whilst in the plaintiff's possession {d). 
 And it is a general rule that the bare possession of goods, without any strict 
 legal title, confers a right of action against a mere wrong-doer, having no 
 right, and not clothed with any authority from the real owner (e). And 
 trover lies by the owner of a ship, though not registered (/). The only 
 exception which appears to exist is the case of a mere servant (2) *act- [ *152 ] 
 ing professedly as such, and having only the custody of goods (g-). 
 
 Thirdly. In order to support this action, the plaintiff must, at the time 3. A right 
 of the conversion, have had the actual possession or the right to immediate °f posses- 
 possession (A). Therefore, where goods leased as furniture with a house ^'°°' 
 were taken in execution, and absolutely sold by the sheriff, it was decided 
 that the landlord could not maintain trover against the sheriff pending the 
 lease, but should have declared specially in an action on the case (i) (3). 
 So if A. pay a Bank of England note to B. who pays it to C. who pre- 
 sents it at the Bank, where it is stopped, C. only can sue, and not A. (A;). 
 We have before observed, that a landlord has, in general, sijch an implied 
 possession of timber wrongfully cut down during a lease as to enable him 
 to support trover if it be removed (Z)(- ; and a remainder-man may support 
 this action against a tenant for life, who does not hold without impeach- 
 ment of waste, for taking away trees (w) (4). So if corn be sown by the 
 
 (i/) Stra. 852 ; 2 Saund. 47 c. a party who has distrained cattle damage 
 
 (z) 2 Saund. 47 b, c, d;l B. & Aid. 59; feasant, cannot maintain trover; for the 
 
 4 id. 590 ; 5 Esp. 35. cattle are in the custody of the law when im- 
 
 (a) 2 Campb. 575. pounded, 1. M'Clel. & To. 118. 
 
 (i) 2 Taunt. 268. (e) 2 Saund. 27, c, d; and see instances 
 
 (c) 2 Bing. 260. post, in Trespass. 
 
 (f/) Husband «. Smith, C. P.,Hil. Term, (/) 2 Taunt. 302; 1 East, 246. 
 
 1823. W. C. Smith, attorney for plaintiff. (g) Owen, 52; 2 Saund. 47 a, b, e, d. 
 
 It is said, that a landlord holding goods un- (h) 3 Campb. 417; 4 B, & C. 941; 7 D. & 
 
 der a distress cannot maintain trover, &o. 5- 407, S. C. 
 
 for an injury to them, or taking them wrong- (i) 7 T. R. 9; 3 Campb. 187; 1 R. & M. 
 
 fully, Moneux v. Goreham, per. Probyn, C. 99; 2 B. & P. 451; 15 East, 607. 
 
 B. at Huntingdon, 29 MS. Serjeant Hill, p. (fr) 3 Campb. 417; 2 T. R. 750. 
 
 279, cited Selw. N. P. Trover; and see (/) .;3a(e, 140, side exceptions there. 
 
 M'Clel. & To. 112, 118. But this position (m) Com. Dig. Biens, H.; IT. R. 55. 
 seems to.be doubtful. It is laid down, that 
 
 (1) Eaton V. Lynde, 15 Mass. 242;Faulkner v. Brown, 13 Wend. 63; Duncan v. Spear, 11 lb. 
 64. See O'Connell «. Maxwell, 3 Blackf. 419. 
 
 (2) Dillenback i>. Jerome, 7 Cow. 294; Faulkner v. Brown, 13 Wend. 63; Ludden v. Lea- 
 vitt, 9 Mass. 104. 
 
 (3) See Wheeler v. Train, 3 Pick. 255; Fairbank v. Phelps, 22 Pick. 535; Swift v. Mosely, 
 10 Vermont. 208. The owner of cattle leased them, with a farm, for four years, under an 
 agreement that, at the expiration of the four years, the lessee might return the cattle or pay a 
 stipulated price for them; and the lessee sold the cattle before the four years expired; this sale 
 was held to determine the lessee's right of possession, and the owner was allowed to sustain tro? 
 Ter for the cattle against both seller and purchaser. Grant v. King, 14 Vermont, 367. 
 
 (4) Shult «. Barker, 12 Serg. & Rawle, 272. 
 'Yoh. I. 23 
 
152 OF THE FORMS OP ACTIONS. 
 
 n.TEovEE. outgoing tenant, and cut down and taken by him after th-e tenancy, under 
 
 2. The a mistaken claim to it as an away-going crop, the owner of the estate may 
 
 plaintiff's support trover (n). 
 
 interest. rpj^g person who has the absolute or general, and not the mere special, 
 
 property in a personal chattel may support this action, although he has 
 never had the actual possession ; for it is a rule of law, that the general 
 property of personal chattels creates a constructive possession (o) (1). 
 And where the plaintiff, as executor, declared on the possession of his 
 testator, the Court held it to be sufficient, because the property was vested 
 in the executor, and no other person having the right of possession, the 
 property drew after it the possession (p) (2). And where a person has de- 
 livered goods to a carrier or other bailee, who has not the right to withhold 
 the possession from the general owner, and so parted with the actual pos- 
 session, yet he may maintain a trover for a conversion by a stranger; (3) 
 for the owner has still the possession in law against the wrong-doer, and 
 the carrier or other bailee is considered merely as a servant (jf). This 
 rule prevails in the case of a gratuitous loan, but not where there has been 
 a letting to hire (r) ; and an executor or administrator is by legal con- 
 struction possessed of the goods of the testator, or intestate, from the time 
 of his death (s). So the trustee of goods may sue, although the goods be 
 
 [ *153 ] in the possession *of the cestui que trust (f). Trover lies by a party en- 
 titled in remainder to plate, against a party to whom it was pledged by the 
 deceased tenant for life, without notice of the limited title of the pawnor (m). 
 And the consignee of goods, who is also the vendee, is in general the person 
 to sue for any injury to them whilst in the hands of the carrier, although 
 they have never reached the consignee (a;). And where every thing has 
 been done by the vendor of goods which he contracted to do, the pro- 
 perty will in many cases pass to the vendee, and he may maintain trover, 
 although the goods remain in the seller's possession (j^). But the vendee 
 of undelivered goods, who has not paid or tendered the price, and has not 
 therefore acquired the right of possession, cannot maintain trover against 
 the vendor, who wrongfully sells them (z). 
 
 If a person in whose possession goods are, has a lien upon them for a 
 debt due to him from the owner, the plaintiff must pay or tender the mo- 
 
 (n) 1 Price, 53. 47 k. 
 
 (0) 2Saund. 47 a, n. 1; Bac. A. Trover, (i) 8 Taunt. 676. 
 C; 3 Wils. 136; 1 B. & P. 47; 7 T. R. 12. (») 2 T. R. 376. 
 
 (p) Latch. 314; 8 Bac. Abr. 58. {x) Ante, 6. 
 
 iq) 1 Taunt. 391; 7 'T. R. 12; 2 Saund. (y) See anU, 150, 151; 11 East, 210; and 
 
 47 b. 5 Bing. 270. 
 
 (r) 2 Campb. 464; 8 id. 187; 7 T. R. 9. (z) 4 B. & C. 941; 7 D. & R. 407, S. C. 
 (s) 7 T. R. 13; Latch. 214; 2 Saund. 47 b. 
 
 (1) Smith J). James, 7 Cow. 329; Duncan v Spear, 11 Wend. 54. If an agent, having au- 
 thority to take a note payable to his principal in discharge of a debt, take it payable to himself, 
 the principal may waive the wrongful act, and claim to have the note delivered to him, and 
 maintain trover for its conversion. M'Near v. Atwood, 5 Shepley, 434. 
 
 Trover may be maintained for a note which has been paid and left by mistake in the hands 
 of the holder, unless the fact of payment is contested by the holder. Peiroe v. Gilson, 9 Ver- 
 mont, 216. 
 
 (2) Kirby c. Quinn, 1 Bice, 264; Hill v. Brennan, 1 Rice, 285. An administrator may 
 declare in trover for a conversion before the death of the intestate, and add a count for a con- 
 version after the death. French v. Merrill, 6 New Hamp. 456; Towle v. Levett, 6 Mass. 
 894; Parrott v. Dubignon, A. M. Chadt. 261 ; Kirby v. Clark, 1 Root, 389. So trover lies 
 against an executor for a conversion in the life time of the testator. Decrow v. Moore, 1 Hayw- 
 21; Clark s. Kenan, 1 Hayw. 308; Avery v. Moore, ib. 86?. 
 
 (1) Ace. Thorp v. Burling, 11 Johna 285. 
 
U. TKOVEB. 163 
 
 ney before tie action is commenced, in order to obtain the possessory n. TEovisi 
 right. But if a party, on being applied to for goods, refuse to deliver 2. The 
 them on a different ground, and do not mention his lien, he cannot after^ plaintiff's 
 words set it up as a defence to the action (a). interest. 
 
 It has been said, that in the case of a special property, it must have been 
 accompanied with possession (1;, in order to support trover (b) ; but th6 
 general rule appears to be to the contrary ; and it was observed by Eyre, 
 C. J., (c) " that it is not true, that in cases of special property the party 
 must once have had possession in order to maintain trover -, for a factor, 
 to whom goods have been consigned, and who has never received them, 
 may maintain such an action" (2). And the indorsee of a bill of lading 
 may maintain trover against the wharfingers, although the bill of lading 
 was indorsed merely to enable the plaintiff to exercise the consignor's 
 right of stopping the goods in transitu {d). 
 
 With respect to the nature of the injury, we have already seen that a 8- The in- 
 conversion is essential to the support of this action (e). It may not be al- ^^^ 
 together foreign to our present inquiry to give some general account of 
 the different instances of conversion (/). They may be either, 1st, by 
 wrongfully taking a persona,l chattel ; 2dly, by some other illegal assump- 
 tion of ownership, or by illegally using or misusing goods (3) ; or 3rdly, 
 by a wrongful detention (4). 
 
 The wrongful taking, if followed by a carrying away of the goods of i. The 
 another, who has the right of immediate possession, is of itself a conver- wrongfiil 
 sion, and. so is the compelling a party to deliver up goods ; *and whenever f-**'? I,i -> 
 trespass will lie for taking goods of the plaintiff wrongfully, trover will also '■ -' 
 
 lie (§•) (5). But it has been considered that a mere seizure by a stranger, 
 who afterwards relinquishes the possession, is no conversion (A) . Trover lies 
 by a bankrupt against his assignees, if the plaintiff was not subject to the 
 bankrupt laws (i) . And if goods be wrongfully seized as a distress, though 
 they be not removed from the place in which they were, yet trover may 
 be supported, because the possession in point of law is changed by their 
 being seized as a distress (A). A sheriff who seizes and sells goods after 
 an act of bankruptcy committed by the defendant, against whom a. fieri far 
 
 (a) 1 Campb. 410, note. Horrall, 4 Blaokf. 317. 
 (6) 4 East, 214. (/) See 2 Saund. 47 e; Bac. Ab. Trover, B. 
 
 (C) 1 B. &. P. 47; 2 Saund. 47 dw See 11 {g) 2 Saund. 47, o; Cro. Eliz. 824. 
 
 East, 626. (A) Samuel v. Norris, 6 Car. & P. 620. 
 
 id) 2 Bing. 260. (i) 3 B. &. B. 2; 6 Moore, 56, S. C. 
 
 (e) Ante, 146; 2 Saund. 46 b. Traylor i;. (fc) WiUes, 56. 
 
 (1 ) Vide Hotchkiss v. M'Vioker, 12 Johns. 407. Thus a sheriff cannot maintain trover be- 
 fore he has levied on the goods; for until then they are not in his actual possession. Hotchkiss 
 V. M'Vickar, 12 Johns. 403. 
 . (2) 7 Cow. 329; Everett ii. Saltus, 15 Wendell, 474. 
 
 (3) Driving a hired horse a greater distance than is agreed, or in a different direction is a 
 conversion. Wheelook v. Wheelright, 5 Mass. 104; Homer i;. Thwing, 3 Pick. 492; Hart uw 
 Skinner, 16 Vermont, 188. See Campbell d. Stokes, 2 Wendell, 1 37 ; 10 Am. Jurist, 107 ; John- 
 son V. Weedman, 4 Soammon, 495. If property be bailed to an infant and he use it for a dif- 
 ferent purpose from that for which it was bailed, the bailment is determined, and he is liable in 
 trover. Green ». Sperry, 16 Vermont, 390. See Lewis v. Litttlefield, 3 Shepley, 233. 
 
 (4) See Glaze v. M'Millon, 7 Porter, 279; St. John v. O'Connell, 7 Porter, 466. 
 
 (5) Ante 145, 146, note. Glenn v. Garrison, 2 Harr. 1. . 
 
154 OF THE POEMS OP ACTIONS. 
 
 11. TEOTEE. cias issued, and before the commission, is, if the fieri facias be void against 
 8. The in.- the assignees, liable to them in trover, although the sheriff was ignorant of 
 j°^- the act of bankruptcy (Z). And a seizure of goods under a fieri faciaS 
 after a party's bankruptcy, followed by a removal of them to a broker's, 
 is a sufficient conversion (m). And this action may be supported after an 
 acquittal of the defendant for the felonious taking of goods (n) (1). In the 
 case of a conversion by wrongfully taking, it is not necessary to prove a 
 demand and refusal (o) ; and the intent of the party is immaterial ; for, al- 
 though the defendant acted under a supposition that he was justified in what 
 he did, or as a servant of, and for the benefit of, another person, he will be 
 equally liable to this action (p) (2). But if the possession was obtained 
 under color of a contract, trover cannot be sustained (9) ; unless a case of 
 fraud can be proved (»•) (3). So if assignees affirm the act of a party who 
 wrongfully sold the bankrupt's goods, they cannot support trover against 
 him (o). And trover does not lie for an excessive levy of goods under 
 a valid execution. And if a sheriff seize under a writ oi fieri facias more 
 goods than was necessary, the proper remedy is case and not trover (p). 
 A. party acting under a valid, and also under an unfounded authority, may 
 protect himself by virtue of the former (5) (4). 
 2 ™. So the wrongful assumption of the property in, or right of disposing of 
 
 fu'l assump goods, may be a conversion in itself, and render unnecessary a demand 
 tionof and refusal (r) (5), as well as any tender of charges («). It seems 
 property, (.jjg^^ ^j^g mere taking an assignment of goods from a person who has no 
 [ *165 ] right or authority to dispose of tliem, is a conversion ; for this is an *as- 
 
 (Z) 1 M. & p. 541; 4 Bing. 597; 2 Y. & J. (0) 7 B. & C. 310; 1 M. & R. 2, S. C. 
 
 101; Garland v. Carlisle, 2 Cr. & M. 31. (y) Batchellor v. Vyse, 1 Mood. & Rob. 333, 
 
 (m) 3 Campb. 396. but %emhU the Court doubted. 
 
 (k) 12 East, 409. (9) 4B. & C. 5; 6 D. & R. 17, S. C. 
 
 (o) 1 Sid. 164; 6 Mod. 212; Bui. N. P. 44; (r) 2 East, 407; 6 Id. 540; 4 Taunt. 24; 
 
 1 Stark. 173; 3 B; & B. 2; 6 Moore, 56, S. C. 3 B. & B. 2; 6 Moore, 56, S. C. Discounting 
 
 (;)) 4M. & Sel. 260; anU, 129. a lost bill after notice is a conversion, 4 Taunt. 
 
 (9) 3 Campb. 298, 352; 3 Taunt. 274; 2 799. 
 
 C. & P. 266. («) 1 Campb. 410; Whitaker, 75; 2 M. & 
 
 (r) 7 Taunt. 59; 1 B. & C. 514; 2 D. & R. S. 298; 3 Campb. 472, 473. 
 
 455, S. C. . 
 
 (1) See Boardman v. Gore, 15 Mass. 336, 337; Addington v. Allen, 11 Wend. 382; Taster ». 
 Tucker, 3 Greenl. 458; Boody ». Keating, 4 Greenl. 164; Grafton Bankc Flanders, 4 N. Hamp, 
 239; Pettingilli). Rideant, 6 N. Hamp. 454; Morgan «. Bliodes, IStow. 70, M'Grew v. Gate 
 Minor, 8; Crowellu. Merrick, 19 Maine, (1 Appleton) 392. ' 
 
 (2) See Cummings v. Perham, 1 Metcalf, 555. A purchase of property from one who had no 
 authority to sell, where the purchaser takes a delivery of it, and retains the possession, claiming 
 it under the sale, is a conversion of it. Hyde v. Noble, 13 N. Hamp. 494. 
 
 (3) Thurston ». Blanchard, 22 Pick. 18; Stevens v, Austin, 1 Metcalf, 557, ante 150 151, 
 note. See Thompson v. Rowe, 16 Conn. 71. . ' ' 
 
 (4) Trover will lie against an officer when he has taken property upon an execution issued 
 upon a judgment void for want of jurisdiction in the court rendering it, or against anyone re- 
 ceiving the property from the officer. Martin v. England, 5 Yerger, 313. This action will lie 
 agamst an oflfioer who takes, upon an execution, property which is exempted by law from at- 
 tachment. Sanborn v. Hamilton, 18 Vermont, 590. ' 
 
 (5) Vide Bristol v. Burt, 7 Johns. 254; Gibbs v. Chase, 10 Mass. 128. An admission by the 
 detendant that he had had the goods of the plaintiff, and that they were lost, is sufficient 
 evidence of a conversion without showing a demand and refusal. La Place ». Au Poix, 1 Johns 
 t-as. 4UC, Proof that the defendant promised to return the goods to the plaintiff, and that he 
 naa not returned them, is sufficient evidence of a conversion without showing a demand and re- 
 w i .!„" "■ ?'"«''«'■' 8 J»1">B. 445. And where a party received logs to be sawed into lum- 
 Der on sherra, and agreed to give the owner security for his share at a stipuhited rate, navable a 
 Sat^rov"erf»h- 'f« it disposed of the property; held, that the'owner was'eSdto 
 Swi^ % ^'*l''^^*L*''^f^''*"'8 no change of property until the security was given. 
 Eightmeyer v. Raymond. 12 Wend. 21 ; Whipple v. Qilpatrick. 19 Maine. (1 Appleton) 427 
 
11. TEOVEli, 156 
 
 sumptioti by the assignee of a property in the goods (<) (1). Thus, the sale n. teoteb. 
 of a ship, which was afterwards lost at sea, made by the defendant, who 3. The in* 
 claimed under a defective conveyance from a trader before his bankruptcy, J"y. 
 is a sufficient conversion to enable the assignees of the bankrupt to mains- 
 tain trover, without showing a demand and refusal (m). So where a person 
 intrusted with the goods of another, puts them into the hands of a third 
 persou without orders, it is a conversion {x). Trover may be supported 
 against a carrier (ji), or a wharfinger (^r), who by mistake (a) or under a 
 forged order (i), delivers goods to a wrong person (2), or against a person 
 who illegally makes use of a thing found or delivered to him (c) ;or a bailee 
 employed merely to keep or carry the goods, and having no beneficial inter-, 
 est, who misuses a chattel intrustedto him (^) (3); or against a carrier who 
 draws out part of the contents of a vessel, and fills it with water (e); or a car- 
 rier or wharfinger, &c., who improperly breaks open a box containing goods 
 or sells them (/) (4). And irregularity in a distress taken darnage fea- 
 sant may amount to a conversion (§•) ; but trover does not lie in the case 
 of a distress for rent, (which is Valid,) merely because a subsequent ir- 
 regularity is committed (Ji) (5). But it may be sustained by a party 
 who pays money to redeem his goods from an illegal and unfounded dis- 
 tress for rent (i). Trover cannot in general be supported for mere omis- 
 sion or nonfeasance against a party who was lawfully possessed of the 
 goods (A) ; and therefore if a carrier, or other bailee, by negligence lose 
 
 (t) Baldwin v. Cole, 6 Mod. 212, per Holt, (c) Cro. Eliz. 219; 2 H, Bla. 552. 
 
 C. J., recognized by Lord EUenborough, in 6 (d) Id. ibid. 
 
 East, 540. And see 2 Stark. 306; 3 C. & P. (c) 1 Stra. 567; and see 5 Bar. & Cress 
 
 552, 553. 149 ; 7 D. & R. 729, S. C. where see, as to a oonl 
 
 («) 6 East, 407, 420. version by abuse of a trust and when the stat.^ 
 
 {x) 4 T. R. 260, 264. nte of limitations begins to run. 
 
 (!/) Peake, C. N. P. 68; 4 Bing. 476, 482, {/) 2 Salk. 655; 5 B. & Aid. 401. 
 
 488. (s) Cro. Jao. 148; Bac. Abr. Trover B. 
 
 (a) 2 B. & Aid. 702. ' (A) 1 Hen. Bla. 13. 
 
 (a) Id. ; 4 Bing. 483. (0 6 T. R. 298. 
 
 (6) 1 Stark 104; 4 Bing. 476. (fc) 6 East, 640; 2 B. & Aid. 704. 
 
 (1) See Everett v. Coffin, 6 Wendell, 603; Rice v. Clark, 8 Vermont 1Q9. 
 
 (2) Packard v. Getman, 4 Wendell, 613; Moses ii.Norris, 4 Hamp. 304. 
 
 (3) Ripley v. Dolbier, 18 Maine, (6 Shepley) 382; Loekwood v. Bull, 1 Cowens 322; 
 Rice V. Clark, 8 Vermont, 109; Swift «. Mosely, 10 ib. 208. A common carrier is liable ia. 
 trover for losing goods. Greenfield Bank v. Leavitt, 17 Pick. 1. But see contra. Moses v. Nor- 
 ris, 4 N. Hamp. 304; Packard v. Getman, 4 Wendell, 613; Johnson v. Strader, 3 Missou. 359. 
 See aUo Dwight v. Brewster , 1 Pick. 50. An adulteration of liquor by a carrier or his servant 
 will be a conversion of it. Dench «. Walker, 14 Mass. 500. See Young u. Mason, 8 Pick. 551; 
 Ewarts v. Kerr, 1 Rice, 204; Maguyer v. Hawthorn, .2 Harring. 71. But an unauthorized use 
 of property by the bailee is not a conversion, unless injury is caused thereby. Johnson u. 
 Weedman, 4 Scammon, 495. But see Liptrot v. Holmes, 1 Kelly, 381. 
 
 (4) Trover does not lie against a carrier for not delivering goods intrusted to him to transportj 
 if the goods are not in his possession at the time of the demand, and have either been lost or 
 stolen; the action should be case and not trover. Packard ». Getman, 4 Wend. 613. If, how- 
 ever, the carrier has delivered the goods to a third person, trover will lie, ib. The liability of 
 the common carrier and innkeeper is very similar; they are both bailees, and liable for losses 
 under similar circumstances. Therefore, it was held, that an innkeeper was not liable for goods 
 intrusted to him in the line of his business, unless an actual conversion was shown. Halleu- 
 bake v. Fish, 8 Wend. 547. 
 
 (5) See Stevens v. Curtis, 18 Pick. 227; Nelson v. Merriam, 3 Pick 249. 
 
 Trover will not lie for goods seized by virtue of legal process and in the custody of the law* 
 Jenner v. JolifFe, 9 Johns. 381. But it lies against an officer, who seizes property by virtue of 
 process, and sells it without notice. Wright v. Spencer, 1 Stew. 176. See Perkins v. Thomp- 
 son, 3 If. Hamp. 144; Hall «. Moore, Addis. 376. Trover will not lie for goods taken from the 
 plaintifif by a search warrant. Pettigree v. Sanders, 2 Baily, 549. Trover will lie for the 
 conversion of a dog, which, under the Revised Statutes of Mass. c, 58. § 12, the defendant had 
 a right to kill. CummiDgs ». Ferham, 1 Metoalf, 655. 
 
common. 
 
 155a OP THE POBMS OP ACTIONS. 
 
 n. TBovEE. goods intrusted to to his care, the remedy in general must be case or as* 
 3. The in- gumpist (/) (1). A bare non-delivery of goods by a carrier is not a con- 
 ^"''^' versioQ (m), unless the goods be in his possession, and he refuse to deliv- 
 er them on demand (w). His false assertion that he has delivered the 
 goods to the consignee is not a conversion (o). And the taking posses- 
 sion of a house and fixtures therein by the assignee of a term in the house, 
 is not a conversion of the fixtures (j)). An agent, by the act of selling 
 at an under price, is not liable to an action of trover {p) ; and the reten- 
 tion of property under the decree of a court of competent jurisdiction, is 
 [ *166 ] no conversion (r). *But a sub-agent may be liable in trover for his con- 
 version (s). The cutting trees without removing them is not a conver- 
 sion (<). 
 By and The general rule is that one tenant in common of goods cannot sue his 
 
 against a co-tenant if the goods remain in the possession of the latter, although he 
 tenant in refuse to permit the former to participate in the use of the article (u) (2). 
 The reason is, that in law the possession of one is the possession of both. 
 But if one tenant in common destroy the chattel, or commit an act which is 
 equivalent thereto, his companion may recover the value of his share in 
 trover {x) (3). Thus, where it appeared that one tenant in common of a 
 ship had forcibly taken it out of the possession of his companion, and se- 
 creted it from him so that he knew not where it was carried, and changed 
 the name of it ; and it afterwards got into the hands of a third person, 
 who sent it upon a foreign voyage, where it was lost ; Lord King left it 
 to the jury, whether, under the circumstances, the destruction was not by 
 the means of the tenant in common (the defendant) ; and the jury finding 
 in the affirmative, the Court refused to set aside the verdict {y'). It 
 seems to be questionable whether the mere sale by one of two joint own- 
 ers of a ship is a sufficient conversion to enable his companion to main- 
 tain trover against him, for such sale could not in law afifect or pass more 
 than the interest of the seller (z) (4). Where one of two tenants in 
 
 {I) 5 Burr. 2825; 2 Saund. 47 f. 1347. 
 
 (m) 4 Esp. 157. (x) 2 Saund. 47 h; 8 T. R. 146; anU, 79. 
 
 (n) 1 Taunt. 891. [y) Bernardistown d. Chapman, C B. Hill, 
 
 (0) 1 Gampb. 409. T. 1 Geo. 1, cited 4 East, 121; Bui. N. P. 34, 
 (p) LongstafEe u. Meego, 4 Nev. & Man. 35; 2 Saund. 47 h. 
 
 411. (z) 4 East, 121; 2 Saund. 47 1. note (»), 
 
 (?) 3 Taunt. 117. 5th edit. Sed vide 6 B. & Aid. 395. A 
 
 (r) 4 Moore,. 361. qutere is made in note (s) to 2 Saund. "as 
 
 (s) Cranch v. White, 1 Bing. N. C. 414. to the sale of any other chattel in market 
 
 (0 2 Mod. 244; Bui. N. P. 44; 2 Saund. overt." A wrongful sale by one tenant in 
 
 47 a. common, under circomstances which would 
 
 (u) ^nte,19; 2 Saund. 47h;l T. E.. 658; divest his companion of his share, might be 
 
 1 East, 363; Selw. N. P. Trover, II. 6th edit, considered a destruction of the chattel. 
 
 (1) Hawkins v. Hoffman, 6, Hill, 586. 
 
 (2) Cowan v. Buyers, Cooke, 53; St. John v. Standing, 2 Johns. 468; Cole v. Terry, 2 Dev. 
 and Bat. 252. 
 
 But see Thompson v. Cook, 2 South, 580. Wilson v. Keed, 3 Johns. 175. 
 
 (3) Tubbs V. Richardson, 6 Vermont, 442; Hurd v. Darling, 14 Vermont, 214; Ladd v. Hill, 
 4 ib, 164; Lucas v. Wasson, 3 Dev. 398; Campbell v. Campbell,2 Murphey, 65. 
 
 A sale of a personal chattel, by one tenant in common is not such a destruction of the chattel 
 as will enable the other tenant in common to sustain an action of trover against the purchaser. 
 Tubbs V. Richardson, 6 Vermont, 442; Sanborn v. Morrill, 15 ib. 700. But see Contra. Hyde 
 V. Stone, 7 Wendell, 354; Weld v. Oliver, 21 Pick. 559; Nowlen v. Colt, 6 Hill, 461; White ». 
 Osbom, 21 Wendell, 72. If a creditor of one tenant in common of a personal chattel attach and 
 sell on his debt the entire chattel, it is a conversion of the interest of the co-tenant for which 
 trover will lie. Ladd v. Hill, 4 Vermont, 164 ; Bradley v. Arnold, 16 Vermont, 382. 
 
 (1) See Hydec. Stone, 7 Wendell, 354; Weld v. Oliver. 21 Pick. 569. Trover lies ty on« 
 
11. TROVER. 156 
 
 common of a whale refused to deliver a moiety of it to the other, and cut ii, tbovek. 
 it up, and expressed the oil, it was held that this was not a destruction 3. The in, 
 which would subject him to an action of trover ; for it was an application jury, 
 of the whale to its only profitable use (a). In general if a defendant in- 
 sist that he was tenant in common with the plaintiff in the chattel, he 
 must plead that matter specially (/»). 
 
 The cases in which trover is or is not the proper remedy in relation to 
 husband and wife have been already mentioned (c). 
 
 In most of the preceding instances, proof of the wrongful act of the de- 3. Of a 
 fendant is sufficient to establish a conversion, without evidence of a do- '"'■'"'gM 
 ma,ad of the goods, and a refusal to restore them {d) (1). In other tlT^^^m 
 cases, a demand and refusal are essential to the support of the action ; of a de- 
 in every instance it is judicious to demand the restitution of the goods, or mandand 
 if they cannot be returned, a recompense equivalent *to their value and 7^*i 57 -\ 
 the amount of the damages sustained, previously to the commencement of *■ ■' 
 
 proceedings. The frequent occurrence of this subject in practice renders 
 it worthy of minute attention, and it is proposed to consider it in the fol- 
 ~ lowing order : — 1st, when a demand and refusal are necessary ; 2dly, by 
 whom the demand must be made ; 3dly, upon whom it is to be made, 
 4thly, the manner of making the demand ; 5thly, the time of making the 
 demand, and, 6thly, ivhat refusal is sufficient. 
 
 1st, A demand and refusal are necessary in all cases where the de- 
 fendant became, in the first instance, lawfully possessed of the goods, demand^' 
 and the plaintiff is not prepared to prove some distinct actual conver- necessary, 
 sion (e) (2). As where a trader, on the eve of his bankruptcy, made a 
 collusive sale of his goods to the defendant, it was decided that the as- 
 signees could not maintain trover without proving a demand and refusal, 
 for the parties contracting were competent at the time ; and if the as- 
 signees disaffirm the contract, they should give notice by a demand (/) (3). 
 So where goods are delivered under a contract,(g') as to do something with 
 
 (o) 1 Taunt. 241. And see ante, 79, as to («) 2 Saund. 47 e. 
 
 tenancy in common of realty. (/) 2 Hen. Bla. 135; 2 Esp. Rep. 96; see 
 
 (4) Stanville v. Hardwicke, 3 Dowl. 762. 5 East, 407; 4 Taunt. 799. 
 
 (c) Ante, 92, 93. (g) 4 Esp. Rep. 156; see 2 C. & P. 266. 
 
 (d) See 4 Taunt. 801. 
 
 part-owner of a vessel against the other owner,'who sends her to sea, where she is lost. Low- 
 throp V. Smith, 1 Hayw. 255. 
 
 (1) Kyle U.Gray, 11 Alabama, 283; Matheny v. Johnson, 9 Missouri, 232. 
 
 (2) A demand and refusal are unnecessary, if the taking is tortious, or if an actual conver- 
 sion is shown. Davis v. Webb, 1 M'Cord, 21.S; Jones v. Dugan, ib. 428; Farrington v. Payne, 
 15 Johns. 231; Woodbury a. Long, 8 Pick. 543; Tompkins v. Hale, 3 Wendell, 408; Eirle ». 
 Van Benson, 2 Halst. 344; Newsum v. Newsum, 1 Leigh, 86; Jewett v. Partridge, 3 Fairf. 
 243; Ritbrd v. Montgomery, 7 Vermont, 411; Hewes v. M'Kinney, 3 Missou. 382. Where 
 property is parted with by duress of imprisonment, or duress perminas, the transaction is 
 ■void, and trover lies for the property without a previous demand. Foshay v. Ferguson, 5 Hill, 
 154. In case of an intermingling of goods, a demand must be made whether there has been an 
 actual conversion or not. Bond v Ward, 7 Mass. 123. 
 
 If property wrongfully taken is put into the hands of another for keeping, such bailee is lia- 
 ble to the owner in trover, after a demand and refusal, and he cannot refer the owner to the 
 person under whom he claims, in order to justify the detention. Doty v. Hawkins, 6 N. Hamp. 
 247. See Houston v. Dyohe, 1 Meigs, 76. 
 
 (3) The seizure of g /ods fraudulently purchased, on a regular process, in favor of a creditor 
 of the vendee, is not a tortious act ; and a demand by the vendor aooompaniecl by a statement of 
 his title, is necessary, to entitle him to sustain trover against the officer. Thompson v. Rowe, 
 }6 Conn. 71. 
 
157 OP THE FORMS OP ACTIONS. 
 
 n. TEovEE. them, and return them when completed, the mere omission to perform the 
 8. The in- Contract is no conversion, and a demand and refusal must be made in or- 
 jury- der to support trover. Where bills of exchange were delivered by a 
 trader, in contemplation of bankruptcy, to a creditor, with a view of giv- 
 ing him preference, and the amount of the bills was received by the cred- 
 itor after the bankruptcy, it was hold, that a demand and refusal to de- 
 liver up the bills before they became due, were necessary to enable the 
 assignees to bring an action of trover for the bills, as the refleipt of the 
 money by the creditor was not of itself a conversion (A). A demand and 
 refusal are likewise necessary in order to maintain trover against an ex- 
 cise officer for the detention of goods after the payment of the penalty for 
 which the goods were levied (i), (1) or against a carrier, who, having 
 goods in his possession, omits to deliver them (A;) (2). 
 
 The demand and refusal do not necessarily amount to a conversion, but 
 are only prima facie evidence of it (3) ; and therefore p, finding by spe- 
 cial verdict that the plaintiff demanded the goods, and the defendant re- 
 fused them, will not warrant the Court in considering that there was a 
 conversion (/) ; and if it be apparent that there really was no conversion, 
 as if the party being a carrier had lost the goods Qni), or having felled 
 trees, has left them on the ground (w), the demand and refusal are inop- 
 erative. 
 2. Who 2ndly. The demand should be made by the person entitled at the *time. 
 
 should de- ^q receive the goods ; and it seems that if goods are bailed, and during the 
 r *158 1 bailment, they are sold to, or otherwise become the property of, another, 
 the demand on the bailee, to create a conversion, should be made by the 
 new owner, and the action brought in his name, if after a proper demand, 
 the bailee improperly refuse to part with them (o). If goods are deposited 
 by one person with the authority of another, and received by the bailee to 
 keep on the joint account of the two, a demand by one alone is not suffi- 
 cient without the authority of the other, so as to maintain trover against 
 the bailee for refusing to deliver the goods. But if it appear that the 
 bailee in such a case had no notice that he held the goods on the joint ac- 
 count, or had not accepted them on any such trust, the party depositing 
 the goods may alone make the demand, although it had been pifeviously 
 agreed between the two parties that the bailee should receive the goods on 
 their joint account (jp). The demand may be made by an agent duly au- 
 thorized (5) ; but such demand will not be sufficient if the defendant bona 
 fide refused to deliver the goods in consequence of his not being reasonably 
 satisfied that the person who applies is properly empowered to receive 
 
 (h) 9B. & C. 764; 4 M. & R, 647, S. C. (q) 2 B. &. P. 457. Sometimes the agent 
 
 (i) 6 B. & C. 464; 9 D. & R. 499, S. C. has a power of attorney, or a written authority, 
 
 (/c) 1 Taunt. 391. to demand and reoeivethe goods; but this may 
 
 (I) 10 Co. 56 b. 57 a ; 2 Saund. 47 e. not be necessary, especially if the demand be 
 
 (m) Ante, 15-5. in writing, signed by the owner, and require 
 
 (n) 2 Mod. 244; Bui. N. P. 44. the delivery to him or the bearer. It is usual 
 
 (0) 4 Bing. 106. to have a demand signed by the owner or hia 
 (p) 13 East, 197. ' attorney. 
 
 (1) See Fryer v. M'Rea, 8 Porter, 187. 
 
 (2) Trover will lie against a bailee if «■ conversion can be proved. Lockwood v. Bull, 1 
 Cowen, 322. 
 
 But it will not lie against a mere naked bailee of goods until after a demand and refusal. 
 Brown V. Cook, 9 Johns. 361. Trover is a proper action by a sheriff against his receiptor who 
 refuses to deliver the good.s intrusted to him. Sibley v. Story, 8 Vermont, 15; Cargill v. Webb, 
 10 N. Hamp. 199. See Carr v. Farley, 3 Fairf. 328. 
 
 (3) Lockwood v. Bull, 1 Cowen, 822; Irish v. Cloves, 8 Vermont, 83, 110; Thompson v. 
 Bose. 16 Conn. 71. 
 
U. TROVER. 168 
 
 them (r). "Where the plaiatiff sold goods to T., who paid for them, and n. tbotbb. 
 was to take them away, but defeadant becoming possessed of the place in 8, The in- 
 which they were deposited, the plaintiff's attorney, accompanied byT.,Ji'y- 
 demanded them of the defendant, telling him that they belonged to plain- 
 tiff, and that he had sold them to T., to which defendant replied, that he 
 would not deliver them to any person whatsoever, and afterwards plaintiff 
 repaid the price of the goods to T. and brought trover, it was held that 
 this demand of the plaintiff's attorney was sufficient (s). 
 
 3dly. The demand should of course be in general made upon the party 3. Upon 
 who at the time has the possession of the goods by himself, or his servant J^"^ *•»' 
 or agent, or the general controlling power over them (1). If after the gh^ube 
 party has_ received goods, though legally, he sell or otherwise part with made, 
 them tortiously, no demand is necessary, for his subsequent act is in itself 
 a conversion (2). If a party, in some way apparently concerned in the 
 detention, be applied to for the restoration of the goods, and by his answer 
 induce the owner to believe that he, the person applied to, has the posses- 
 sion and power to deliver them up, and refuse to do so ; and thereby the 
 owner is induced to sue him ; he cannot, it seems, defend at the trial, on 
 the ground that he had not, when applied to, the control and disposition 
 of the goods Q}. 
 
 * It is not necessary that the demand should be made upon the defendant [ *169 ] 
 , personally. A demand in writing left at the "defendant's house is suffi- 
 cient (m). 
 
 4thly. The demand in trover being only for the purpose of giving the *• Demand 
 defendant an opportunity of either restoring the goods in specie, or of '''"' '°*^*' 
 mailing satisfaction to the party to whom they belong (a;), it is not neces- 
 sary to adhere to any particular form or manner of making the demand, 
 provided it be distinctly notified to the defendant who is the claimant, and 
 what goods are demanded. Where "the plaintiff, the vendor of a house, 
 brought trover for various articles, some of them being goods, and the re- 
 mainder being fixtures, which he had left in the house on delivering it up 
 to the defendant, the vendee, and demanded them all as fixtures, and the 
 refusal was " of the fixtures demanded" this demand was held to be in- 
 sufficient to enable the plaintiff to recover the articles which were not_^.^;- 
 tures ; it having been decided upon other grounds that the fixtures were 
 not recoverable (y) (3). A demand of payment for goods of which there 
 
 (r) 1 Esp. Rep. 83; see also id. 115; 2 B. («) 1 Esp. Rep. 22. So as to a notice to 
 
 & P. 464, n, a; 5 Moore, 259, and 1 Campb. quit, 4 T. R. 464, and notice of the dishonor of 
 
 839, where the demand appears to have been a bill of exchange, Chitty on Bills, 7th ed. 220. 
 
 made by an agent. (i) Per Lord Eenyon, 1 Esp. 33. 
 
 (s) 6 M. & Sel. 105, (a) 2 B. & C. 76; 3 D. & R. 255, S. C. 
 
 (t) 3 C. & P. 136. 
 
 (1) Knapp V. Winchester, 11 Vermont, 851. 
 
 (2) Grant v. King, 14 Vermont, 367. 
 
 (3) Window blinds, keys, &o. and things personal in their nature, but fitted and prepared to 
 be used with real estate, are considered as part of the real estate, though not strictly speaking 
 fixtures, or rather as so connected with the realty as to pass with it. 6 Greeul. 223; Farrier v. 
 Staekpole, Goddard v. Bolster, 3 Greenl. 154, 427. And manure lying aliout a barn 
 
 upon land, will pass to the grantee, upon a sale of the land, as incident to the land, unless there ' 
 
 be a reserTation of it in the deed. Kittridge v. Woods, 3 New Hamp. 503. Nor is an outgoing 
 tenant in agriculture entitled to the manure made on the farm duriug his tenancy, even though 
 lying in heaps in the farm yard when he removes, and though it were made by his own cattle 
 and from his own fodder. Lassell v. Reed, 6 Greenl. 222; Middlebrook o. Corvin, 15 Wend. 
 169; Daniels v. Pond, 21 Pick. 367. Trover will lie for a saw mill built by one on the land of 
 another with his consent. Russell v. Richards, 2 Fairf. 371. See Osgood v. Howard, 6 Qreenl. 
 452; Hilborne v. Brown, 3 Fairf. 162. 
 
 Vol. L 24 
 
169 OP THE FORMS OP ACTIONS. 
 
 n, ontvoKB. lias been no regular sale, is a good demand to support an action of trover 
 8. Hw in- for them (z) (1) ; so a demand of " satisfaction" has been adjudged to be 
 j'"^- sufficient for this purpose (a). If two distinct demands be made, one 
 verbally and the other in writing, at the same time ; proof of the verbal 
 demand alone will be sufficient, and no evidence of the written request 
 need be given (i). A demand in writing, left at the defendant's house, 
 maybe sufficient (c). 
 6. Demand 5thly. The demand, when necessary, must in general be made before 
 when made jjje action is brought (2). Where a declaration was entitled generally of 
 the term, whereby it had implied relation to the first day of the term, and 
 the demand was made subsequently to that day, but before the issuing of 
 the writ, evidence may be received of the prior issuing, in order to show 
 that the demand was made previously to the suing out of the writ (d). 
 But as the refusal is not of itself a conversion, but is merely presumptive 
 evidence of it, it ought to be left to the jury whether refusal upon a de- 
 mand made after the action is brought, is evidence of a prior conver- 
 sion (e). If there be evidence that the defendant received or had posses- 
 sion of goods before the coraencement of the action, and the plaintiff show 
 that they then were his property, it is perhaps not an unfair presumption 
 [ 'ISO ] that the refusal to *restore the goods, though after the action brought, was 
 but a re-assertion of a pre-existing adverse claim to them ; and therefore, 
 until rebutted, even such refusal may be evidence that the defendant origi- 
 nally took or held the goods tortiously, or upon a claim of ownership, in- 
 consistent with and opposed to the plaintiff's right. 
 6. Of the 6thly. The refusal to deliver goods upon demand thereof will not 
 refnsal. necessarily in all cases constitute conversion, unless the party refusing 
 have it in Ms power to deliver up the goods detained, and the refusal be 
 made in a distinct unqualified manner. Where a deed was demanded 
 from the defendant, who said he would not deliver it up, but that it was 
 then in the hands of his attorney, who had a lien upon it, this refusal was 
 held to be not sufficient evidence of a conversion ; and Lord Ellenborough 
 said, that the defendant would have been guilty of a conversion if it had 
 been in his power, but the intention was not enough (/)(3). So likewise 
 a refusal upon demand is no evidence of conversion, if the party bona 
 fide and reasonably refuse on the ground of his not being satisfied that 
 the party making the demand is not the real owner of the goods (g')(4) ; 
 
 («) 1 Esp. 31. plaintiff's election, be regarded as the com- 
 
 (a) Rocheby't case, Clayt. 122, mentioned mencement of the suit. SeeTT. R. 4; 4 East, 
 
 in 1 Esp. 31. 75; 11 East, 118. In C. P. see 1 B. & P. 343; 
 
 (6) 1 Campb. 439. 2 B. & P. 236. 
 
 (c) 1 Esp. 22. (0 Per Lord Mansfield, 3 Burr. 1243; 5 
 
 (<i) 3 Burr. 1242. In K. B. by bill, a de- B. & Aid. 847; 1 D. & R. 488, S. C. 
 
 mand after writ issued, and before declaration, (/) 1 Campb. 439. 
 
 ■would be sufficient. In that Court the exhi- (<;) 3 Campb. 215; 2 Bulstr. 312; 2 B. & 
 
 biting of the bill or declaration may, at the P. 464. 
 
 (1) La Place v. Anpoiz, 1 Johns. Cas. 406. 
 
 (2) Storm v. Livingston, 6 Johns. 44; and if the defendant on the demand delivers up the 
 property held by him lawfully, no damages can be recovered in an action of trover. Chandler 
 V. Partin, 2 Rep. Con. Ct. 72; Quay v. M'Ninch, ib. 78. 
 
 (3) A demand and refusal are no evidence of conversion, unless the thing demanded were at 
 the time of the refusal, in possession of the defendant. Enapp v. Winchester, 11 Vermont, 
 351; Traylor v. Horrall, 4 Blaokf. 317; Yale v. Saunders, 16 Vermont, 248; Morris v. Thomp- 
 son, 1 Richardson, 65. 
 
 (4) Sargent v. Qile, 8 N. Hamp. 325; Leighton v. Shapley, 8 N. Hamp. 359; Robinson v. 
 Burleigh, 6 N. Hamp, 225; Fletcher v. Fletcher, 7 N. Hamp. 452; Dowd v. Wadsworth, 2 Dey, 
 130. One need not exhibit his title to the property in makine his demand for it. RatcUffe v. 
 Vance, 2 Rep. Const. Ct. 289. x- ., e 
 
n. TKOVER. 160 
 
 or properly authorized by the real owner to receive them (A)(1) ; nor is "- taovm 
 it sufficient evidence of a conversion by a servant of the owner of the 3. The ia- 
 goods demanded, that he refused to give them up until he could consult J*""^' 
 his master, and obtain his directions to deliver them (i). But where the 
 vendor of goods shipped the same on board a ship by the order of the 
 vendee, and the captain by his bill of lading undertook to deliver them 
 to the consignee ; and the vendee having become bankrupt, the vendor 
 demanded the goods of the captain ; the refusal by the latter, who alleged 
 that he had signed a bill of lading to deliver the goods to another, was 
 held to be sufficient evidence of a conversion (A). And where tobaci* 
 co_ was pledged by an agent who had purchased in his own name for his 
 principal, the refusal of the pawnee to deliver the tobacco to the princi- 
 pal upon demand made by him, was deemed a conversion (^). 
 
 If the demand be not made upon the defendant himself, but merely left 
 at his house during his absence, it appears that a reasonable time 
 and opportunity to restore the goods should be suffered to elapse, before 
 the defendant's non-compliance with the demand can be treated as a re^ 
 fusal, amounting to a conversion (to) (2). The non-compliance with the 
 demand after a reasonable opportunity to obey it has been afforded, is tan- 
 tamount to a refusal, and is presumptive evidence of a conversion, and 
 throws upon the defendant the burthen of rebutting the presumption, and 
 explaining that the omission to deliver up the *goods is not in law a con- [ *161 1 
 version : as that being a carrier the defendant lost the goods, &c. (3). 
 
 When it is doubtful whether the evidence will establish a conversion so 
 as to support a count in trover, a count in case for negligence, &c. should 
 Ije added, if there be any proof to support it. If there have been a con^ 
 version, trover lies, although the goods converted be afterwards restored 
 to the owner, for the restoration only goes in mitigation of damages(w)(4). 
 
 We have seen, that for a wrongful taking of goods, trover is in general ^^^"^ op- 
 a concurrent remedy with trespass (o) ; but the converse does not hold, br^g\ro. 
 for trover may often be brought where trespass cannot ; as where goods Ter op 
 are lent or delivered to another to keep and he refuse to deliver them on trespass, 
 demand, trespass does not lie, but the proper remedy is trover (;»). So, 
 where the taking is lawful or excusable, trespass cannot in general be 
 supported, but the action must be trover ; as where a sheriff, after a secret 
 act of bankruptcy, seizes and sells goods under an execution against the 
 bankrupt (g). 
 
 (ft) 1 Eap. 835 5 Moore, 259. Campb. 396. 
 
 (i) 6 B. & Aid. 247. (o) Ante, 153j Cro. Eliz. 824; 3 Wils. 33j 
 
 (fc) 6 B. & C. 36; 8 D. & R. 31, S. C. 2 Saund. 47 o. Glenn v. Garrison, 2 Harr. 1. 
 
 il) 5 Kast, 538. {p) Sir Tlio. Raym. 472; 2 Saund. 47 p. 
 
 (m) See 8 B. & C. 528. (q) 1 Burr. 20 ; 1 T. R. 475 ; 2 Saund. 47 p. 5 
 
 (n) 1 Rol. Ab. 5 L. pi. 1; 6 Mod. 212^ Bui. 3 Campb. 396; 4 M. & Sel. 260; 1 M. & P. 
 
 N. P.465Bac. Ab. Trover, D. Accord, A.; 3 556^ 4 Bing. 697. 
 
 (1) Dent V. Chiles, 6 Stew, and Post. 383; Watt v. Porter, 2 Mason, 77. 
 
 (2) White V. Dewary, 2 N. Hamp. 546. 
 
 (3) See Thompson d, Bowe, 16 Conn. 71. A cow going at large in the highway, without a 
 keeper, joined a drove of cattle, without the knowledge of the driver, and was driven to a dis- 
 tant place, and there pastured with the other cattle; the owner of the cow called on the driver^ 
 after his return, made enquiries, and demanded the cow. On the return of the drove, a few 
 months afterwards, the driver delivered the cow to the owner, who received her. In an action of 
 trover against the driver, it was held that this omission to deliver the cow on demand, was not 
 evidence of a conversion. Wellington v. Wentworth, 8 Metfialf, 648. 
 
 (4) Vide Murray v. Burling, 10 Johns, 172; Bristol v. Burt, 7 Johns. 154; Shotwell v. Wend- 
 over, 1 Johns. 65; G-reenfield Bank v. Leavitt^ 17 Pick. 1; Q-ibbs v. Chaise, 10 Mass. 125, 128-; 
 Wheelock v. Wheelwright, 6 Mass. 104. 
 
■^gl OF THE FOBMS OP ACTIONS. 
 
 n.raovBE. The declaration in this action should state that the plaintiff was pos^ 
 Deolara- gessed of the goods (avoiding repetition and unnecessary description) as of 
 tion, &c. f^^g g^^ property, and that they came to the defendant's possession by/nrf- 
 iri"- ; but the omission of the former words is not material after verdict(/-) : 
 an'd'the finding is not traversable (s). As the conversion is i\i& gist of 
 the action, it must necessarily be stated in the declaration. It is^simply 
 averred that the defendant " converted the goods to his own use." The 
 usual j^^ea was the general issue, not guilty of the premises (<); under 
 ■which any defense upon the merits, except the statute of Limitations, 
 might formerly be given in evidence. But the pleading rules, H. T. 4 W. 
 4,t now require a special p/ea in almost every case (m). The points re- 
 lating to the pleadings in this action will be more fully stated hereafter. 
 The jury may, in trover against the sheriff for a wrongful sale, allow him 
 expenses of sale if reasonable (a;) . The judgment is for damagesQ/') (1). 
 and full costs, to which the plaintiff is entitled, though he recover less than 
 forty shillings damages («), unless the judge certify under the statute 43 
 Bliz. ch. 6. (1). 
 
 [ •162 ] 
 
 m. 
 SEnETnr' 
 
 •HI. REPLEVIN (a)i 
 
 By replevin the owner of goods unjustly taken and detained from him, 
 may regain possession thereof through the medium of and upon application 
 to the sheriff, upon giving him security to prosecute an action against the 
 
 (r) Moore, 691; Hardr. Ill; Latch. 214; Gale, 21, S. C; 5 Tyr. 238. 
 2 Saund. 47 m. Miter on judgment by de- {y) The damages to be recoTered are to be 
 
 fault. Swallow v. Aynoliff, B. R. Mich. Term, equal to the value of the article converted 
 
 2 Geo. 2, MS.; Selw. N. P. Trover,lII a. (II.) at the time of the conversion, 3 Catnpb. 477; 
 
 (s) Jinte, 146; 1 New Rj 140. or it seems the jury may give as damages the 
 
 (t) Bui. N. P. 48. value at any subsequent time, 1 C. & P. 626. 
 
 (u) See post, Chapter on Pleas. (a) 2 Keb. 31; 1 Salk. 208. 
 
 {x) Clark v. Nicholson, 6 Car. & P. 712', 1 (o) From re a,ui plegiare, Co. Lit 145, 146. 
 
 (1) The measure of damages in trover is the value of the property at the time of the con- 
 version with interest. Pierce v. Benjamin, 14 Pick. 356; Parks v. Boston, 15 Pick. 198, 206, 
 207; Stone v. Codman, 25 Pick. 257, 300; Greenfield Bank v. Leavitt, 17 Pick. 1 ; Weld v. Oli* 
 ver,21 Pick. 550; Johnson v. Sumuer, 1 Metcalf, 172; Barnes v. Bartlett, 15 Pick. 71, 78; 
 Sargent v. Franklin Ins. Co., 8 Pick. 90, 100; Watt v. Potter, 2 Mason, 77; Lillord i». Whita- 
 ker, 3 Bibb, 92; Matthews v. Menedger, 2 M'Lean, 145; Burney v. Pledger, 3 Richardson, 191; 
 Kingsbury v. Smith, 13 N. Hamp. 109. But see Buford v. Tannen, 1 Bay, 273; Kid v. Mitch, 
 ell, 1 Nott and M'C. 334; Jamison v. Hendricks, 2 Blackf 94; Banks v. Hatton, 1 Nott and M. 
 221. 
 
 The measure of damages in trover for a note is the amount due on its face unless it is proved 
 to be of less value; Ingalls v. Lord, 1 Cowen, 240, and interest from its maturity to the time of 
 conversion, and interest on the aggregate from that time to the time of the verdict. St. John v. 
 O'Connell, 7 Porter, 466. See Komig v. Romig, 2 Rawle, 241; A return of the property will 
 not bar an action of trover, and operates only in mitigation of damages. Greenfield Bank v. 
 Leavitt, 17 Pick. 1; Yalei;. Saunders, 16 Vermont, 243. 
 
 If the taking of property be wrongful and an action of trover be commenced, the plaintiff can- 
 not be compelled to receive back the property in mitigation of damages. Green ». Sperry, 16 
 Vermont 390. So if the property be essentially injured. Hart b. Skinner, 16 "Vermont, 138. 
 But if the plaintiff docs receive the property back even after suit brought, this will go in mitiga- 
 tion of damages; he recovers the excess in the value of the goods at the time of conversion above 
 the value at the time of the delivery. Rank ». Rank, 5 Barr. 211. 
 
 (2) Judgment for the plaintiff in trover transfers the title to the property converted to the de- 
 fendant. Foreman v,. Neilson, 2 Richardson, Eq. 287. 
 t Se» American Editor's Frefaoe. 
 
Ill, eepleVin. 162 
 
 pei^son whp seized (1). It is principally used in cases of distress, but it ni. 
 seems that it may be brought in any case where the owner has goods taken "^^J-^*™- 
 from him by another (6) (2). Replevin was formerly commenced by writ 
 issuing out of the Court of Chancery, directed to the sheriff. In modern 
 practice, however, the course adopted is to make a plaint to the sheriff 
 upon the Statute of Marlbridge, to have the goods replevied, that is, re-^ 
 delivered, upon giving security to prosecute an action against the distrainer^ 
 for the purpose of trying the legality of the distress ; and if the right be 
 determined in favor of the distrainer, to return the goods ; and in case of 
 distress for rent, also giving bond with two sureties to the same effect (c). 
 In the first instance the plaint is levied in the sheriff's County Court, in 
 pursuance of the condition of the replevin bond, but the action is usually 
 removed into and prosecuted in one of the superior Courts. 
 
 The action of replevin, it is said, is of two sorts, namely, in the detinet^ 
 or delinuit ; the former, where goods are still detained by the person who 
 took them, to recover the value thereof and damages ; and the latter, as 
 the word imports, when the goods have been delivered to the party {d) (3). 
 But the former is now obsolete, and according to a late case, there does 
 
 (6) Seeposi, 164. (d) 1 Saund. 847 b, n, 2; Bui. N. P. 52 J 
 
 (e) 3 Bla. Com, 147, 148. See generaUy, Com. Digi Pleader, 3 K. 10. 
 Wilkinson on Eeplevin. 
 
 (1) The action of replevin is grounded on a tortious taking, and it sounds in damages like an 
 action of trespass, to which it is extremely analogous, if the sheritf has already made a return, 
 b,nd the plaintiff goes only for damages for the caption; Hopkins v. Hopkins, 10 Johns. 373. 
 The possession of personal chattels by the plaintiff, and an actual wrongful taking by the defend- 
 ant, are sufficient to support replevin; which lies where trespass de bonis asportalisviiXWifn 
 Rogers v. Arnold, 12 Wend. 89. By the 2 R. S. 622, s 1 , of N. York, it is also an appropriate 
 remedy in any case of a wrongful detention of personal property. lb. So in iUaine, replevin 
 lies wherever trespass or trover would for the unlawful conversion of goods. Seaver v. Dingley, 
 4 Greenl. 306; Sawtell v. Bobbins, 28 Maine, 196; Galvin v. Bacon, 2 Fairf. 28. So in Massai 
 ohusetts, Badger v. Phinney, 15 Mass. 859; Baker v. Fales, 16 ib. 147; Marston v. Baldwin, 17 
 ib. 606. In Connecticut, replevin will lie only in cases of attachment and distress. Watson v. 
 Watson, 9 Conn. 140; 10 ib. 75. 
 
 In Pennsylvania, replevin lies wherever a man claims goods in the possession of another. 
 Weaver v. Lawrence, 1 Ball. 156. See Mead v. Kilday, 2 Watts, 110. So in Maryland, Cul- 
 lum V Beavans, 6 Harr. & Johns. 469. 
 
 In New Jersey, replevin lies where goods are so taken as to entitle the owner or possessor to 
 an action of trespass. Braen v. Ogden, 6 Halst. 370. 
 
 In Missouri, replevin is an action strictly in tort and can be sustained only where trespass can 
 for a wilful and tortious taking. Rector v. Chevalier, 1 Missou. 845; Crocker v. Mann, 3 
 ib. 472. But see Skinner v. Stense, 4 Missouri, 98. So in Illinois, Wright u. Armstrong, Breese. 
 130. 
 
 According to the statute of Indiana, replevin lies wherever any person tortiously takes and un- 
 lawfully detains, or unlawfully acquires and unlawfully detains, the goods of another, provided 
 the plaintiff is not the execution defendant. Chinn v. Russell, 2 Blackf. 174; Daggett v. Rob- 
 bins, 2 Blackf. 415; Walpole o. Smith, 4 Blackf. 304. 
 
 In Ohio, under the statute of that state, it is the wrongful detentiori that gives the right of 
 action without regard to the original taking. Began v. Stoutenburgh, 7 Ohio, 183. 
 
 In Vermont, the action of replevin cannot be sustained, except under the statute, and not 
 as a suit to try the right to property. Miller *. Werner, Brayt. 168; Taggart v. Hart, Brayt. 
 215; Bulkly v. Smith, Brayt. 38. 
 
 In South Carolina, to entitle a person to remedy by a writ of replevin, he must prove a clear 
 and unequivocal possession and an actual taking. Byrd v. O'Hanlin, 1 Eep. Con. Ct. 401. 
 
 In Kentucky, replevin will not lie for taking property held adversely to the plaintiffi Dillon 
 V. Wright, 7 J. J. Marsh, 10. 
 
 In Alabama, see Smith v. Crocket, Minor, 277. 
 
 In Mississippi replevin lies only in case of distress for rent. Wheeloftk v. Cozzens, 6 Howard, 
 (Miss.) 279. 
 
 (2) In Delaware, replevin is not confined to distress for rent arrear, but ma^ be used where- 
 over one claims property in the possession of another. Clark v. Aidii, 3 Harrington, 113. 
 
 (8) See Pierce o. Van Dyke, 6 HiU, 618. 
 
162 a 
 
 OP THE FORMS OP ACTIONS. 
 
 III. 
 
 tlEFLETIN, 
 
 not appear in any of the books any proceeding in replevin which has not 
 commenced by writ, requiring the sheriff to cause the goods of the plaintiff 
 to be replieved to him, or by the plaint in the sheriff 's Court, the imme- 
 diate process upon which, is a precept to replevy the goods of the party 
 levying the plaint : both which modes of proceeding are in rem, i. e. to 
 have the goods again (e) (1). And therefore replevin is not an action with- 
 in the statute (/), which protects constables, &c. acting under a magistrate's 
 warrant, from any action, until demand made or left at their usual place 
 of abode, &c., by the party intending to bring such action (g-). In the pre- 
 sent action in the detinuit, the plaintiff can only recover damages for the 
 taking of the goods, and for the detention till the time of the replevy, and 
 [ *163 J not the value of the goods themselves (A). We will consider this 'action 
 with reference, 1st, to the thing taken ; 2dly, the property therein ; and 
 3dly, the nature of the injury. 
 
 Replevin can only be supported for taking personal chattels, and not for 
 talcing things attached to the freehold (2), and which are in laW considered 
 fixtures (i), and cannot be delivered to the distrainer upon a writ of retorno 
 habendo. Hence it does not lie for trees or timber growing (3), but it lies 
 for removal of tenant's fixtures (j) ; and the general rule appears to be, 
 that replevin lies for any thing that may by law be distrained (A:(. Wheth- 
 er it lies for a personal property which cannot be distrained, (as title-deeds, 
 money not in a bag, or a bill of exchange, &c.,) seems to depend upon the 
 question whether the remedy by replevin extends to all unlawful takings 
 
 (0 (4)- 
 
 To support replevin, the plaintiff must, at the time of the caption, have 
 had either the general property in the goods taken, or a special property 
 therein (m) (6). Several persons having separate and distinct interests in 
 
 Ist. The 
 property 
 aSiiCteil. 
 
 2dly. The 
 
 glaintiff's 
 tterest. 
 
 (e) Per Lord EUenborough, C. J., 6 East, 
 286. 
 
 (/) 24 Geo. 2, c. 44. 
 
 (g) 6 East, 283. 
 
 (A) 1 Saund. 347 b, note 2; Lutw. 1150, 
 1151. 
 
 (i) 4 T. R. 584; 2 Saund. 84. 
 
 \j ) Cowp. 414. 
 
 (k) Bao. Ab. Keplevin and Avowry, I".; 
 
 Com. Dig. Keplevin, A. 
 
 {I) See post, 164. 
 
 (m) Co. Lit. 145 b. What is considered a 
 general or special ownership or interest to en- 
 able a party to maintain trover, ante, 170. The 
 same rules hold in replevin in this respect. 
 Qucere, whether mere possession is anough to 
 support replevin, 10 Mod. 25. 
 
 (1) In Pennsylvania, replevin is not altogether a proceeding in rem, but against the defend* 
 ant in the writ personally, with a summons to appear. Bower ». Tallman, 5 Watts & Serg. 556. 
 
 (2) Vausse «. Russell, 2 M'Cord, 329; De Mott «. Hagerman, 8 Cowen, 220; Cresson v.- 
 Stout, 17 Johns. 116. 
 
 (3) But if they be cut down by a stranger, who converts them into posts and rails, the action 
 may be maintained. Snydor i;. Vaux, 2 Rawle, 423; Cresson «. Stout, 17 Johns. 116. See 
 Powell V. Smith, 2 Watts, 126; Johnson v. Hunt, 11 Wendell, 187. So where timber trees are 
 cut for sale, by the tenant for life only in the land, they become the personal property of the 
 remainder-man, and he may maintain replevin for them. Richardson v. York, 2 Shepley, 216. 
 
 (4) Replevin lies in the name of a parish for the recovery of Parish Records. Sawyer v. 
 Baldwin, 11 Pick. 492; Sudbury v. Stearns, 21 Pick. 148. 
 
 (5) See Wilson v. Royston, 2 Pike, 315; Walpole «. Smith, 4 Blackf. 304; Broadwater v. 
 Doane, 10 Missouri, 277. But a deposit by a person who,ha3 himself no property in the goods, 
 does not give the depositary any right to replevy them; and it seems very questionable, whether 
 on a mere naked bailment for safe-keeping the bailee can maintain replevin. Harrison v. 
 M'Intosh, 1 Johns. 380. A mere servant, who has charge of goods as such only, cannot maiu- 
 tein replevin, but if they are delivered to him by the master as bailee, he may. Harris v. Smith, 
 8 Serg. & Rawle, 20. A receiptor to an ofBcer, or any other bailee for safe keeping merely, haa 
 not sufficient mterest to sustain replevin. Warren v. Leland, 9 Mass. 265; Perley v. Foster,ib. 
 112; Waterman v. Robinson, 6 ib. 803. And one joint owner of a chattel cannot maintain re- 
 plevm agamst another. M'Elderry v. Flannegan, 1 Harr. & Gin. 308; Prentice v. Ladd, 12 
 Conn. 331; Barnes v. Bartlett, 16 Pick. 71; Wills ». Noyea, 22 "WendeU, 121. An, officer may 
 
III. REPLEVIN. 163 
 
 the property distrained, as if the goods of A. together with other goods of B. "'■ 
 be distrained, cannot join in this action (w); but joint tenants and tenants ia ''^'^''^"''• 
 common may and should join (o) (1). If the goods of a feme sole be taken, 
 and afterwards she marry, the husband alone may have a replevin (p) (2), 
 and if the goods be talten after marriage, and the husband and wife join in 
 replevin, and after verdict a motion is made in arrest of judgment on the' 
 ground of their joining, it will be presumed, if nothing appear upon the 
 record to the contrary, that the husband and wife were jointly possessed of 
 the goods before marriage, and that the goods were taken before mar- 
 riage, in which case they might join (5). In replevin an avowry for rent 
 admits the property of the goods to be in the plaintiff ; but if the plain- 
 tiff 's plea shows property in a third person, the action cannot be supported; 
 Therefore, if to an avowry for rent in replevin, the plaintiff pleads that 
 she was a married woman when the rent accrued due, she cannot maintain 
 replevin ; because it must be intended that the husband continued alive un- 
 til the time df the distress taken, and that therefore the goods could not be 
 the plaintiff's but her husband's, and so she has no ground of action (r}. 
 The husband and wife may join in replevin of goods which the wife has as 
 executrix (s), but in this, as in all other instances where the wife is joined, 
 the declaration must show *the wife's interest in the property or the reason r *164 ] 
 for joining her in the action (t). Executors may have a replevin of goods 
 taken in the lifetime of the testator (m) (3). If the plaintiff has not the im- 
 mediate right of possession (4), replevin cannot be supported, but the par- 
 ty must proceed by an action on the case (.'k). The defendant cannot, un- 
 der the general issue, non cepit, dispute the plaintiff's property (5) (6), 
 which must be denied by a special plea (y), 
 
 (n) Co. Lit. 145 b. (s) Bro. Bar. & Feme, pi. 85. 
 
 (0) Bui. N.P. 53. (0 2 New. Rep. 405; ante, 73, 74. 
 (p) F. N. B. 69. (u) Bro. Kep. 59; Sid. 82. 
 
 (q) Bourn and Ux. v. Mattaire, Ca. temp. (x) 7 T. R. 9. 
 
 Hardw. 119 ; ante, 74. (y) Bui. N. P. 54 a. 
 
 (r) 7 Taunti 72. 
 
 maintain replevin against a receiptor, who refuses to deliver goods entrusted to him by the officer. 
 Bezell V. Odell, 3 Qill, 215. The receiptor cannot set up title in himself, ib. 
 
 Replevin lies by the mortgagee of a chattel against one tortiously taking it from the possession 
 of the mortgagor, default in payment having been made by the mortgagor. Fuller v. Acker, 1 
 Hill, 478. See M'Isaacs v. Hobbs, 8 Dana, 268. But where it is agreed, that the mortgagor 
 shall retain possession for a stipulated time, the mortgagee cannot maintain replevin therefor 
 until such time has expired. Ingraham v. Martin, 8 Shepley, 378. 
 
 (1) Vide Hart v. Fitzgerald, 2 Mass. 509, that replevin will not lie for part of a chattel, 
 Gardner v. Dutch, 9 Mass. 427; D'Wolf v. Harris, 4 Mason, 515; M'Arthur v- Lane, 3 
 Shepley, 245. 
 
 (2) Per Curiam, Baker v. Fales, 16 Mass. 149. 
 
 (3) Reist V. Heilbrenner, 11 Serg. & Rawle, 131. See Talvande v. Cripps, 2 M'Cord, 164. 
 (5) Wheeler ». Train, 3 Pick. 265; Collins ». Evans, 15 Pick. 63. The plaintiff must have 
 
 had a right to the possession of the property at the time of the taking or detention. Gates v. 
 Gates, 15 Mnss. 310; Collins ». Evans, 15 Pick. 63; Chinn v. Russell, 2 Blaokf. 174; Walpole 
 V. Smith, 4 Blackf. 304; Ingram v. Martin, 3 Shepley, 878. But see Pratt v, Farkman, 24 
 Pick. 42. ^ 
 
 But possession itself is not necessary. Baker d. Fales, 16 Mass. 147; Pratt i>. Parkman, 24 
 Pick. 42. The party to whom property is to be delivered by the terms of a bill of lading has the 
 legal title and may maintain replevin therefor. Powell v Bradlee, 9 Gill & Johns. 220. 
 
 A person haying only an equitable title to a note cannot sustain replevin for it against the 
 legal owner. Clapp v. Shepard, 2 Metcalf, 127. 
 
 (8) The general issue of non cepit, in the case of a wrongful taking, puts in issue not only 
 the taking, but the place where taken, if material, 2 R. S. 628, s. 29; and incase of a wrongful 
 detention the general issue, to wit — That the defendant does not detain the goods, &c. put in 
 issue not only the detention of the goods, but the property of the plaintiff, The distinction here 
 made between the effect and operation of the general isBue, in the oases of non cepit and non 
 
164 OP THE FORMS OP ACTIONS. 
 
 III. With respect to the nature of the injury, it has been said that replevin 
 
 KEPLEviN. jjgg Q^jy. jn ojje instance of an unlawful taking, namely that of wrongful 
 3. The in- (iisif ess (1) of cattle damage feasant, or for chattels for rent in arrear (2); 
 ^^^' but, as'before observed, it appears that this action is not thus limited, and 
 that if goods be taken illegally, though not as a distress, replevin may be 
 supported (o) (1) ; and it is often judicious to adopt it or an action of det- 
 inue, in order to obtain possession of the goods themselves (6). Replevin 
 is however now seldom brought but for distresses for rent, damage feasant, 
 poor rales, &c. (c). It may be brought to try the legality of a distress 
 for rent, provided there were no sura whatever in arrear (d) ; but if any 
 sum, however small, were due, and the distress were for a greater sum, or 
 excessive, in regard to the quantity of goods taken, or otherwise irregular, 
 the remedy must be by action on the case (e). Replevin lies also for an 
 illegal distress taken damage feasant ; and when the party in possession of 
 the land has no title thereto this action is preferable to trespass for seizing 
 the cattle, in order to put in issue the title of the party distraining (./). It 
 is also maintainable to try the legality of a distress for poor rates (.§•) ; or 
 for sewer's rate (A) ; or for a heriot, &c. (i). If a tenant's cattle are 
 wrongfully distrained, and they afterwards return back to the tenant, he 
 may still maintain replevin against the landlord (A). If a superior court 
 award an execution, it seems that no replevin lies for the goods taken by 
 the sheriff by virtue of the execution (2) ; and if any person should pre- 
 tend to take out a replevin, the court would commit him for a contempt 
 
 {«) 3 Bla. Com. 146. (c) Jlnte, 138. 
 
 (n) 1 Soho. & L3fr. 320, 324; Vin. Ab. Re- (/) 1 Saund. 346 e. n. 2. 
 
 plevin, B. pi. 2; Sir W. Joaes, 173, 174; 6 H. (g) 3 Wils. 442; 1 Salk. 20; 2 Bla. Rep. 
 
 7, 8, 9; Cro. Eliz. 824; Cro. Jac. 50; Com. 1330; Willes, 672, b; and see 7 B. & C. 398, 
 
 Dig. Replevin, A. Action, M. 6; Co. Lit. ii. 338; 3 B. & Adol. 440. 
 
 145 b. See Willcinson on Replevin, 2, 3. (A) 6 T. R. 522; Hardr. 478; Com. Dig. 
 
 (i) 2 Stark. R. 288. Pleader, 3 K. 26; Willes, 672, n. b. 
 
 (c) Com. Dig. Action, M. 6; Lutw. 1179; (i) Cro. Jao. 50. 
 
 see Courin v. Marshall, 3 Bar. & Adol. 440. (fc) F . N. B. 69. 
 
 (d) 5 T. R. 248, n. c; 3 B. & P. 348. 
 
 detinet is in analogy to that existing in the actions of trespass and trover. In the one the de- 
 fendant cannot, under the plea of not guilty, show property out of the plaintiff, but he may in 
 the other. UJohns, 132, 528; 13 ib. 284; 14 ib. 132, 353; 15 ib. 208. JVon cepit admits 
 property in the plaintiff, and hence the necessity of the different pleas of property in others. 
 Nor will the court, under such issue, permit the defendant to give special matter in evidence ia 
 justification. M'Farland v. Barker, 1 Mass. 135. 
 
 (6) Vickery v. Sherburne, 20 Maine, (2 Appleton) 34. See Robinson v. Calloway, 4 Pike, 94. 
 
 (1) It does not seem to be settled in South Carolina whether replevin will lie in any other 
 case than a distress for rent. Bird v. O'Hanlin, 1 Const. Ct. 401 ; but in Pennsylvania, it lies 
 in every case on a claim of property, 11 Serg. & Rawle, 132. See ante, 162, 163. note. 
 
 (2) Ace. Pangburn v. Partridge, 7 Johns. 140; Isley v. Stubbs, 5 Mass. 283, 284. See Hay- 
 thorn V. Rushforth, 4 Harr. 160; Cummings v. M'Gill, 2 Murphy, 357. A person obtaining 
 goods by false pretences is guilty of a tortious taking and no demand is necessary to enable the 
 person defrauded to maintain replevin. Ayres i>. Hewett, 19 Maine, (1 Appleton) 281; Win- 
 gate V. Smith, 20 Maine, (2 Appleton) 287; Browning v. Bancroft, 8 Metcalf, 278. Replevin 
 is in general a co-extensive remedy with trespass de bonis asportatis. Pangburn v. Partridge, 7 
 Johns. 143; Thompson v. Button, 14 Johns. 87. See BufiBngton ^^^Gerisb, Badger v. Phinney, 
 15 Mass. 356, 359. See also 1 Ball. 147; 6 Binn. 8; 3 Serg. & Rawle, 562; Bruen v. Ogden, 
 6 Halst. 370; Marshall v. Davis, 1 Wend. 109. See ante, 162, 163, note. 
 
 (3) But it has been held, in Pennsylvania, that although replevin was prohibited by a statute 
 of their legislature to be brought against a sheriff who had taken goods in execution, yet that 
 after the sale, a person olaimiilg property in the goods might maintain this action against the 
 sheriff's vendee. Spearick v. Huber, 6 Binn. 2. In Massachusetts, an action of replevin is 
 allowed, by statute, to be brought for goods taken io exeoation, provided the plaintiff in replevin 
 be not the debtor; but Parsons, C. J. observes, that this alteration of the common law has been 
 productive at much practical inconvenience. Isley v. Stubbs, 6 Mass. 280, 288. In a late case 
 la the state of New York, it was held, that although the defendant in the execution, could not 
 
III. REPLEVIN. "leS 
 
 of their jurisdictiou (Z). So where goods are taken by way of levy, as for ni, 
 a penalty on a conviction under a statute, it is generally in the nature of an *="*™'- 
 execution, and unless *replevin be given by the statute, this action will not 
 lie, the conviction being conclusive, and its legality not questionable in 
 replevin (»t) ; as on a conviction for deer-steeling (w). So replevin does 
 not lie for goods taken under a warrant of distress granted under the 20 
 G-eo. 2, c. 19, s. 1, for non-payment of laborers' wages (o). Where how- 
 ever a special inferior jurisdiction is given to justices, &c. and they exceed 
 it, in some cases replevin lies : as where a magistrate granted a warrant 
 of distress against a person for rates, in respect of lands which the latter 
 did not occupy (jo). This action is maintainable for goods distrained 
 under a warrant from commissioners, authorized by act of parliament to 
 levy rates for specific local purposes, with power of distress (9). 
 
 In this action both the plaintiff and defendant are considered as actors ; 
 the defendant in respect of his having made distress, (being a claim of 
 right, and the avowry in the nature of a declaration) (»■) ; and the plain- 
 tiff in respect of his action ; on which ground principally the distinctions 
 between the pleadings in this action, and in that of trespass depend (5). 
 
 The declaration in this action, which is local (1), requires certainty in 
 the description of the place (2) where the distress was taken ; and the de- 
 scription, number, and value of the goods also must be stated with cer- 
 tainty, although the same strictness does not prevail as formerly (<) (3). 
 
 (0 Gilb. Rep. 161; 2 Lutw. 1191; 3 Ley. (5) 1 Swanst. 304; and see 2 New Rep. 399. 
 
 204. (r) 2 Wils. 260, 261 ; 1 Saund. 347 e» n. 7 ; 
 
 (m) Bac. Ab. 5th edit. vol. vi. 58, Replevin, Willes, 221. 
 
 (C). Com. Dig. Action, M. 6. (s) 1 Saund. 347 b, n. 3. 
 
 (n) 2 Stra. 1184. (t) 2 Saund. 74 b; 7 Taunt. 642; 1 Moore, 
 
 (0) 1 B. & B. 57; 3 Moore, 294, S. C. 386, S. C. 
 ip) Willes, 673, n. b; 2 Bla. Rep. 1330. 
 
 himself maintain replevin, yet that the action might be brought by a third person against the 
 sheriff; for, if an ofScer having an execution against A. undertake to execute it upon goods in 
 in the possession of B., he assumes upon himself the responsibility of showing that such goods 
 were the property of A., and if he fails to do this, he is a trespasser by taking them. Thompson 
 V. Button, 14 Johns. 84. See Mulmholm v. Cheny, Addis. 301. 
 
 So, the goods of a master or principal, taken under an execution against his servant or agent 
 while in his possession, may be taken by a writ of replevin; the goods in such case to be deemed 
 as taken from the actual possession of the plaintiff, (who was not the defendant in the execution), 
 Clark V. Skinner, 20 Johns. 465. Replevin will lie also by the owner of goods against a sheriff 
 for the recovery of property levied upon by him by virtue of an execution against a third person, 
 the property at the time of the levy being in the possession of the defendant in the execution, 
 where such property, after the levy, oarae peaceably into the possession of the owner, and was 
 retaken by the sheriff. Hall v. Guttle, 2 Wend. 475; William v. Welch, 5 Wend. 290, But re- 
 plevin will not lie against a receiptor of goods taken by virtue of an execution, although the 
 action under the circumstances of the case, might be maintained against the sheriff, if the party 
 becomes such receiptor at the request of the defendant in execution. Chapman v. Andrews, 3 
 Wend. 240. A person having the property in goods, and having the right to reduce them to 
 actual possession, may sue replevin against the officer who takes them by virtue of a,n execution 
 out of the possession of the defendant in the execution. Denham v. Wickoff, 3 Wend. 280. A 
 defendant in execution, whose property is levied on, cannot prosecute a writ of replevin, al- 
 though the property may be exempted by law. Reynolds v. Sallec, 2 B. Munroe, 18; Saffell v, 
 Wash, 4 B. Munroe, 92. 
 
 (1) Vide Robinson v. Mead, 7 Mass. 353; William v. Weloi, 5 Wend. 290. 
 
 (2) Vide Gardner v. Humphrey, 10 Johns. 53. . 
 
 (3) Magee v. Siggerson. 4 Blackf. 70. If mill logs be fraudulently converted into boards 
 before the writ of replevin is sued out the owner should describe the property as boardsiu his 
 writ. He cannot describe it as mill-logs and recover boards. Wingate v. Smith, 20 Maine, (2 
 Appleton) ,287. See Snedeker v. Quick, 6 Halst. 179. If the defendant has fraudulently taken 
 the mill-logs of the plaintiff, and manufactured them into boards, and intermixed these boards 
 with a pile of his own, so that they cannot be distinguished, with the fraudulent intentof there- 
 by depriving the plaintiff of his property, the owner of the logs thus tal?en may maintm re- 
 
 YoL. I. . 25 
 
165a OF THE FORMS OP ACTIONS. 
 
 ni Where the distress was taken for rent, a general avowry is given by stat- 
 BEPiETm. ute (w) (1) ; but in avowries for distresses, taken damage feasant, more 
 certainty is necessary than in a justification in trespass, as the defendant 
 cannot in the former, rely on mere possession of the locus in quo, but 
 must state his title {x){2'). The plaintiff cannot plead in bar de injuria 
 generally (3), but must take issue upon some particular allegation in the 
 a,vowry («/). The statute of Anne (z) provides that the plaintiff in re- 
 plevin, in any court of record, may, with leave of the Court, plead several 
 pleas in bar (4) ; which frequently renders this action preferable to tres- 
 pass or any other action, in which the plaintiff can have but one replica- 
 tion to each plea. The other particulars of the pleadings in this action 
 will be stated hereafter. The judgment for the plaintiff is, that he re- 
 cover his damages on occasion of the taking and unjustly detaining the 
 cattle, &c. (5) together mth full costs of suit, to which the plaintiff is 
 entitled ; though he recover less than 40,s. damages, unless the judge 
 [ *166 ] certify under the 48 Eliz. c. 6 ; and *under the 19th section of this act, 
 the defendant in replevin is entitled to treble damages, with single costs 
 also(fl). The judgment for the avowant, or person making cognizance, 
 varies in different cases ; it may be at common law pro retorno habeMo, 
 or founded on the statutes (6)(6). If the plaintiff be nonsuited (7) or 
 discontinue his action, or have judgment against him, he will be liable 
 to double costs (c)(8). 
 
 IV. TRESPASS. 
 
 IV. The term trespass, in its most extensive signification, includes every 
 
 TRESPASS, description of wron^ (d), on which account an action on the case has 
 
 In general. \)qq^ usually called " trespass on the case ;" but technically, it signifies an 
 
 injury committed vi et armis, the meaning of which words is explained in 
 
 Co. Lit. (e). The action of trespass (9) only lies for injuries committed 
 
 (ti) 11 Geo. 2, e. 19, s. 22; 2 Saund. 284 c, (4) Hen. 8, or Car. 2. See the'oases in 1 
 n. 3. Bannd. 195, n. 3; 2 Saund. 286, n. 5. 
 
 (x) 2 B. & P. 359; 1 Saund. 347 b, n. 8. (c) 11 Geo. 2, c. 19, s. 22; see also 1 B. & 
 
 (y) 1 B. & P. 76. AW. 670. 
 
 (2) 4 Anne, o. 16, s. 4. (d) 7 East, 184, 135; Co. Lit. 57 a. 
 
 (a) 4 Moore, 296; 1 Lord Eaym. 19; 1 (c) 161, b.; 3 Bla. Com. 118, 398, 399. 
 
 Salk. 205. 
 
 plevin for the whole pile of boards. Wingatei). Smith, «6i supra. A writ of replevin should 
 not include any property not taken under the writ. Sanderson v. Marks, 1 Har. & Gill. 252. 
 
 (1) The pro-vision in the statute 11 Geo. 2, c. 19, s. 22, has never been adopted in the state 
 of New York. Harrison d. M'Intosh, 1 .Tohns. 884. See 2 Rev. Stat. Title Xlt. "Replevin," 
 p. 621. See, for the law in Pennsylvania, the act of 21st March, 1772, sect. 10; 1 Sm. 
 Laws, 370. 
 
 (2) Ace. Hopkins v. Hopkins, 10 Johns. 869. So at common law where the defendant avows 
 for rent arrear. Harrison v. M'lntosh, 1 Johns. 380. 
 
 (3) Hopkins v. Hopkins, 10 Johns. 369; Rogers v. Arnold, 12 Wend. 80. 
 
 (4) See Laws N. Y. Act for Iht amendment of the law, 1 R. L. 619. 2 Rev. Stat. 528, 38. 
 (6) An omission to allege damage in a -Writ of replevin is fatal. Taeef v. Brayton, 2 Har. 
 
 & Johns. 3B0. 
 
 (6) See Laws of N. Y. sess. 11, c 5, s. 11. 1 R. L. 95; 2 R. S. 480 to 582; Loomis v. Tyler, 
 4 Day, 141; Easton v. Worthington, 5 S. & R. 182; Weidel v. Roaebury, 13 S. & R. 170. 
 
 (7) See Smith v. Winston, 10 Missouri, 299. 
 
 (8) Ace. Act of 21st March, 1772, s. 10; Purg. Dig. 710; 1 Sm. Laws of Pennsylvania, 870. 
 
 (9) As to the Mstory of this action , vide 1 Reeve's Hist. E. L. 268, 266, 840, 347 ; 3 Reeve's 
 Hist. E. L. 84, 89. 
 
tV, TRESPASS. 166 
 
 with force, and generally only for such as are immediate (/). Force, we w- 
 have seen, may be either actual or implied; and the distinctions between ™'^''^*- 
 immediate and consequential injuries have already been considered (g-). 
 The words contra pacem should uuiformly accompany the allegation of the 
 injury, and in some cases are material to the foundation of the action. 
 An action of trespass to land not within our king's dominions cannot be 
 sustained (A) ; for the venue in trespass to realty is local, and there is not 
 therefore any county into which the writ can in such case be issued (i). 
 It has been doubted whether trespass for an assault committed out of the 
 king's dominions can be supported (A) : though as the fine, in strictness of 
 law payable to the king for the violation of the public peace, is no longer 
 regarded (Z), and the words contra pacem are not traversable {m} ; and the 
 venue is transitory ; it should seem that an action for such injury, or for 
 an injury to goods in a foreign country, might be supported. The inten- 
 tion of the wrong-doer is in general immaterial in this action (w) ; and 
 where the defendant has been acquitted of a felonious taking he may be 
 sued for the trespass (o). 
 
 This action cannot be sustained where the wrong complained of was a 
 nonfeasance, as for not carrying away tithes-, &c. {p) ; or where the mat- 
 ter affected was not tangible, and consequently could not be immediately 
 *injured by force, as reputation, health, <fec. (g) ; or where the right af- [ *167 ] 
 fected is incorporeal, as a right of common or way, &c. (»•) ; or where the 
 plaintiff 's interest is in reversion, and not in possession (s) ; or where the 
 injury was not immediate but consequential (<). We will consider the 
 particular applicability of this remedy to the different injuries committed 
 by force to the person, or personal or real property ; and as there are 
 material distinctions between the remedy for these injuries when commit- 
 ted under color of suit or process, and when not, we will consider the 
 action of trespass under the following heads : — 
 
 I. When it lies for injuries not committed under color of legal pre 
 ceedings. 
 
 ' 1. For the parties' own act, 
 
 ( 1. Injuries td the person. 
 < 2. To personal property. 
 ( 3. To real property. 
 2. For the acts of others, and of cattle, &c. 
 n. When trespass lies for injuries under color of legal proceedings (w). 
 
 FIBST, FOR INJURIES NOT UNDER PROCESS. 
 
 Trespass is the only remedy for a menace to the plaintiff, attended with V*- I°J"- 
 
 (/) Ante, 125, 126. (o) 12 East, 409; Sty. 346; 2 Eol. Ab. ^**™' 
 
 (g) Id, 557; Yelv. 90; 1 Sid. 375; 1 Bing. 401; an«e> 
 
 (A) 4 T. B. 503; 2 Bla. Rep. 1058. 148. 
 
 (i) Stephen on Pleading, 306, Ist edit. (p) Jlnie, 126. 
 
 (k) Cowp. 176; 2 Bla. Eep. 1058; Finch's (o) Jlnte, 126. 
 
 Law, 198. (I-) Ante, 129, 139. 
 
 (0 8 Bla. Com. 118, 399. (s) 4 T. R. 489; 7 T. E. 9. 
 
 (m) Com. Dig. Pleader, 3 M. 8; Vin. Ab. (i) jinte, 139. And semWe, that after a re^ 
 
 Trespass, Q. a. oovery in trespass, the proper remedy for a 
 
 (») 1 Campb. 497; 2 Campb. 465; 3 East, continuance of the injury is cote, 1 Star. 22. 
 
 698: ante, 129. (u) 3 T. B. 185. 
 
167 OF THB! forms of" ACTIONS. 
 
 "- consequent damages (x) ; and for an illegal assault, battery, and wounding, 
 '*^"'"' or imprisonment, when not under color of process (?/) (1). It lies also 
 1. Injuries ^j^^n the battery, imprisonment, &c. were in the first instance lawful, but 
 Mn^not"^" tlie party by an unnecessary degree of violence became a trespasser ab 
 under pro- initio (z) (2) ; and for a wrongful imprisonment after the process is de- 
 cess-, termined (a) ; or for an assault after an acquittal for a felonious assault ' 
 and stabbing (6). So it lies for an injury to the relative rights occasioned 
 by force, as for menacing tenants, servants, &c. and beating, wounding, 
 and imprisoning a wife or servant (c), whereby the landlord, master, or 
 servant, hath sustained a loss ; though the injury, the loss of service, &c. 
 were consequential, and not immediate. It lies for criminal conversation 
 (d) ; seducing away a wife (e), or servant (/) ; or for debauching 6he 
 latter (g-) ; force being implied, and the wife and servant being consid- 
 . , ered as having no power to consent; and a count for beating the plain- 
 
 t *16^ ] tiff's servant, per quod servitium *amisit, may be joined with other counts 
 in trespass (A) ; and though it has been usual to declare in case for de- 
 bauching a daughter (i), it is now considered to be preferable to declare 
 in trespass (k) (3). 
 2dly. To The action of trespass, in its application to injuries to personal property, 
 personal may be considered with reference, 1st, to the nature of the thing affected ; 
 property. 2dly, the plaintiff 's n^A< thereto; 3dly, the nature of the wywrj^ ; and 
 the situation in which the defendant stood, as whether tenant in common, 
 bailee, &c. 
 1. Nature And first, as to the nature of the thing affected ; trespass lies for tak- 
 a/ OTo^r-" ^"^S 01" injuring all inanimate personal property, and certain domiciled and 
 ty. ' tamed animals, of which the law takes notice, as dogs, &c. (J) (4) ; and 
 
 (x) 3 Bla. Com. 120. (g) Bao. Ab. Trespass, C. 1 ; 3 Wils. 562, 
 
 (jf) 11 Mod. 180, 181. 18, 19; 2 New Rep. 436, 2 M. & Sel. 436. 
 
 (z) Com. Dig. Trespass, C. 2; Bac. Ab. (A) 2 M. & Sel. 436; 2 New Kep. 476. 
 
 Trespass, B.; post, 172. (i) 2 T. R.167, 168; 20 Via. Ab. 470; 6 
 
 (a) Cro. Jao. 379. East, 387. 
 
 (6) 12 East, 409. (fc) 2 New Rep. 476; 2 M. & Sel. 436. 
 
 (c) 2 M. & Sel. 436; 9 Co. 113; 10 Co. (0 1 Saund. 84, n. 2, 4; Com. Dig. AO- 
 130. * tion, Trover, C; Fitz, N. B. 86. Hob. 283; 
 
 (d) 7 Mod. 81; 2 Salk. 552; 6 F-ast, 387. fcro. Eliz. 125; 3 T. R. 37, 38; see Toller's Law 
 (c) Fitz N. B. 89; 6 East, 387. of Executors, 1st edit. 112, where the partic- 
 (/■) 5T. R. 861; 7 Mod, 81; 2 Salk. 552; ulars of personal property are stated; Com. 
 
 20 Vin. Ab. 470. Dig. Trespass, A. 1. 
 
 (1) Trespass lies for attempts to commit an assault and battery, as mayhem. Hurst v. Car- 
 lisle, 3 Penn. 176. 
 
 (2) Pease II. Burt, 3 Day, 485; ElUott u. Brown, 2 Wend. 497. The State v. Wood, 1 
 Bay, 351; 15 Mass. 347, 465; Bennett v. Appleton, 25 Wendell, 371; Boles d. Pinkerton, 7 
 Dana, 453. In the case of an assault and battery both parties may be guilty of a breach 
 of the peace and may be indicted ; but a civil action cannot be brought by each against the 
 other. Although the defendant may have been the aggressor, yet if the plaintiff had 
 used not only more force than was necessary for self defence but had unnecessarily abused 
 the defendant, he cannot recover damages; but must pay damages. ElUott v. Brown, 2 
 Wend. 497. 
 
 (8) Hubbell v. Wheeler, 2 Aiken, 359; Akerdey v. Haines, 2 Caines, 292. 
 
 (4) Sinnicksonu. Duncan, 3 Halst. 226. But if a man is so damaged by the dog of another 
 that the peace and quiet of his family are disturbed, and there is no other mode of preventing 
 it, he may lawfully kill the dog. Brill ti. Flayer, 28 Wend. 854; King v. Kline, 6 Barr, 318. 
 So a man is justified in killing an enraged bull, in the necessary defence of himself, or of his 
 family, and such facts, if properly pleaded, constitute a good defence to trespass in such case. 
 Russell y. Barrow, 7 Porter, 106. But where the defendant to prevent the plaintiff's fowls from 
 trespassing on his land, as they had done before, spread poisoned food upon his land, having 
 given the plaintiff previous notice that he should do so, and the fowls, coming afterwards on 
 the defendant's land, ate the poisoned food, in consequence of which some died, it was held, 
 that previous notice, in contradiction to notice after the fact, was sufficient; but that, not*ith- 
 
V, TRESt»ASS, 168 
 
 all animals usually marketable, as parrots, monkeys, &c. (1) .; and in iv. 
 ■which case it is not necessary to show in the pleadings that they have been 'KEsPAssi 
 reclaimed (m). In the case of a hawk, pheasant, hare, rabbit, fish, or 2- Injuries 
 other animals /er« naturce, and not generally merchandizable, it should be aitl^JZT 
 shown in the pleadings that the same were reclaimed or dead, or at least under pro-^ 
 that the plaintiff was possessed (2) of them (n). So it lies in some cases <="3. 
 for taking animals /erts naturae, and not reclaimed as if a hare or rabbit 
 be killed on the land of another, he having a local property ratione soli 
 in such hare or rabbit, may support trespass for taking it, though the 
 wrong-doer did not enter on the land (o) (3) and if game be started on 
 the land of B., A. may support trespass for taking the hare, if he also 
 pursued the same, for by the pursuit he prevented an abandonment of his 
 local property (;>) (4). The same rules prevail in the case of fish (g). 
 In actions of trespass for taking or killing animals fercB naturae not re- 
 claimed, it is advisable in pleading to state also an entry, if any, on the 
 plaintiff 's land (»*) ; and it is said that trespass for killing rabbits, with- 
 out complaining of such entry, cannot be supported (s). 
 
 Secondly. With respect to the plaintiff's interest in the property affec- 2dly. Tha 
 ted, he must, at the time when the injury was committed, have had an ac- nature of 
 tual or a constructive possession (u) (6) and also a general or qualified ;7ro- in*th"'p7r' 
 
 sonat pro- 
 Cm) Cro. Jao. 262; 1 Saund. 84, n. 2. (?) Cro. Car. 554. perty («). 
 (n) Bac. Ab. Treapass, and Trover, D.; Cro. (r) 43 Edwi 3, p^ 24, 2; 1 Ld. Raym. 250; 
 
 Jao.262; 1 Ventr. 122; Dyer, 306 b.; Cro. 11 Mod. 74; 2 Salk 556; Cro. Car. 554;Fitz. 
 
 Car. 554. As to Fish, see Bui. N. P. 79; 5 B. ST. B. 86, 87 M. note a, A. 
 
 & C. 879. Case for disturbing a decoy, &c. (s) 43 Edw. 3, p. 24, 2; Fitz. Ni B. 87 Aj 
 
 ante, 142. 0. ; Cro. Car. 553, 554. 
 
 (b) 2 Salk. 556; 1 Ld. Baym. 251 ; Godb. (/) See a»i(e, 61, 131, as to who may sue in 
 
 123; 14 East, 249. general in this action. 
 
 (p) Id. (li) 1 T. K 480; 4 id. 440; 7 id 9. 
 
 standing such notice, the defendant was not justified in the use of the means he had employed, 
 and was liable in damages. Johnson v. Patterson, 14 Conn. 1. 
 
 (1) See Commonwealth v. Chase, 9 Pick. 15. The owner of bees, which have been reclaimedj 
 may bring an action of trespass against a person, who cuts down a tree, into which the bees 
 have entered on the soil of another, destroys the bees and takes the honey. Goff v. Kitts, 15 
 Wendell, 550. 
 
 (2) Oysters planted by an individual in a bed clearly designated and marked out in a bay 
 or arm of the sea, which is a common fishery to all the inhabitants of the town in which the 
 bay is situated, are the property of him. who planted them, and for a taking them by another 
 trespass lies. Fleet v. Hegeman, 14 Wend. 42. 
 
 (3) It seems that the owner of land may, in like manner, have a property ratione soli it. 
 bees, although they have not been hived or reclaimed by himi Gillet d. Mason, 1 Johns. 16 j 
 Ferguson v. Miller, 1 Cow. 243; Idol v. Jones, 2 Dev. 162. But see Wallis v. Mease, 3 Binn. 
 646. 
 
 (4) If A. starts a hare in the ground of B, and hunts it into the ground of C, and kills 
 or catches it there, the property is in A., the hunter, who may maintain trespass against Cj . 
 for taking away the hare. Sutton v. Moody, 1 Ld. Eaym. 2 0. S. C.j 2 Salk. 556; Church- 
 ward d. Studey, 14 East, 249. Mere pursuit of a wild animal does not, independent of title 
 ratione soli, vest any property in the pursuer ; manucaption is not, however, necessary ; it is 
 sufacieut if the pursuer have rendered it impossible for the animal to escape. Pierson v. Post, 
 3 Caines, 175; Buster v. Newkirk, 20 Johns. 75. 
 
 (5) Vide Putnam ». Wiley, 8 Johns. 432; Carter v. Simpson, 7 Johns. 535. Hence, if a 
 vessel has been seized by an officer of the customs as forfeited to the United States, and is after.' 
 wards acquitted, the owner cannot maintain trespass for an injury intermediate between the 
 seizure and acquittal, since he has neither the actual possession, or the right to reduce her into 
 possession. ^Van Brant v. Sohenck, 11 Johns, 377. But where a deputy sheriff attached 
 goods, carried them into Rhode Island, and delivered them to a bailee, taking his receipt, and 
 the bailee put them into the hands of another person for safe keeping, it was held that the offi- 
 cer might maintain trespass, and recover damages, against mere strangers who took them 
 away from the keeper in Rhode Island. Browne u. Manchester, 1 Pick. 232. And in such a 
 case, the bailee might also, it has been held in New Hampshire, maintain the action. Poole v. 
 Simonds, 1 New Hamp. 239. But a different decision has taken place in Massachusetts. Lud^ 
 den t>. Leavitt, Warren v. Leland, 9 Mass. 104-, 266. 
 
*169 OP THE FORMS OF ACTIONS. 
 
 i^- pert^j therein which may be either,first, in the case of *the absolute or general 
 TEESPAss. Q^jjQj. entitled to immediate possession ; 2dly, the qualified owner coupled 
 to ^^iT'oT ^'^^^ ^^ interest, and also entitled to immediate possession (x) ; 3dlj, a 
 aUy'aot"^ bailee with a mere naked authority, unaccompanied with any interest, ex- 
 under pro- cept as to remuneration for trouble, &c., but who is in actual possession ; 
 cess. Qj. 4thly, actual possession, though without the consent of the real owner^ 
 and even adverse (1). 
 
 These rules have been considered in detail in explaining the nature of 
 the action of trover (y). It may, however, be useful to notice them here, 
 particularly in those cases in which they have more immediate reference 
 to the action of trespass. 
 
 In the first instance the person who has the absolute or general property 
 may support this action ; although he has never had the actual possession, 
 or although he has parted with his possession to a carrier, servant, &c., 
 giving him only a bare authority to carry or keep, &c. not coupled (2) with 
 an interest in the thing (a); it being a rule of law that the general property 
 of personal chattels prima facie, as to all civil purposes, draws to it the 
 possession (a) (3). Therefore the owner of tythe may support trespass 
 against the occupier of the land where it has been set out, for turning in 
 cattle and injuring it (6). So the grantee of waifs, estrays, and wreck, 
 within a manor, or of felon's goods within a hundred, may, before seizure 
 by him, maintain trespass against a wrong-doer (c) ; and the owner of a 
 ship has, notwithstanding a charter-party, a sufficient possession thereof 
 to support trespass (^d). 
 
 This rule holds by relation ; as in case of executors and administrators^ 
 &c., who may support trespass for an injury to personal property commit- 
 ted, after the death of the testator, or intestate, and before the probate or 
 administration was granted (e); so may a legatee, after the executor has as- 
 sented to the legacy, for a tresspass committed before such assent (/). But 
 if the general owner part with his possession, and the bailee, at the time 
 when the injury is committed, have a right exclusively to use the thing, 
 the inference of possession is rebutted, and the right of possession being in 
 reversion, the general owner cannot support trespass (4), but only an 
 
 (k) Anle, 61 ; i B & p. 44; 7 T. B. 9. (6) 8 T. R. 72. 
 
 (y) Avte. 148, 149. (c) P. N. B. 91 b, 91 d, 91 F. ; 1 T. R. 480. 
 
 (2) 7 T. B. 12; 16 East, 33. (d) 3 B. & Aid. 503; 6 Moore, 211; 2B.& 
 
 (o) 2 Saund. 47 a, b, d; see further, ante, B. 410, S. C; 2 T & J. 810, 818. 
 
 174. When not so in criminal oases, see (e) 1 T. B. 480; Bao. Ab. Executors, H. 1 ; 
 
 Coust's argument in Basely'8 case, 2 Leach, 2 Saund. 47 a. 
 
 C. L. 838, 843, 4th edit. (/) Bro. Ab. Trespass, pi. 25. 
 
 (1) Possession actual or constructive, with property in the chattel general or qualified, is 
 necessary to sustain trespass. Brainard d. Barton, 5 Vermont, 97 ; Parsons d. Dickinson 11 
 Picl£. 382; Hoyt v. Gelston, 13 Johns. 141, 661; Daniels v. Pond, 21 Pick. 367; Clark v Carle- 
 ton, 1 N. Hamp. 110; Fisher v. Cobb, 6 Vermont, 622; Daniel v. Holland, 4 J. J. Marsh 18; 
 Cannon r. Kinney, 3 Soammon, 10; Root v. Chandler, 10 Wendell, 110; Hume* Tufts 6 
 Blaokf. 136; M'Farland v. Smith, Walker, 172; Bell v. Monahan, Dudley, S. C. 38- Dallam'i;. 
 Filler, 6 Watts & Serg. 323; Freeman v. Eankins, 8 Shepley, 446; Barron v. Cobleieh 11 N 
 Hamp. 557. ' 
 
 (2) Vide Putnam v. Wiley, 9 Johns. 435; Williams v. Lewis, 3 Day, 498; Thorp v. Burline. 
 11 Johns. 285; East's P. C. 564, 565. 0'> * °. ^""^P ■»• x>urung, 
 
 (3) Vide Bird v. Clark, 3 Day, 272; 7 Conn. 235. 
 
 (4) Vide Putnam u. Wiley, 8 Johns. 482; Van Brant ». Sohenok, 11 Johns. 885; 7 Conn. 
 235; Loper » Sumner, 5 Vermont, 274; Hart v. Hyde.ib. 828; Cannon v. Kinney, 8 Scammon, 
 \,\ ^"L"^ ^iP™' 9 Cowen, 687; Lunt v Brown. 1 Shepley, 286; Muggridee oi Eveleth, 9 
 Metoalf, 233; Fitler v. Shotwell, 7 Watts & Serg. 14. ^^^ 
 
IT. TRESPASS. '170 
 
 I 
 
 action on the case, for an injury done by a stranger while the bailee's right J^- 
 continued (g-). Noj can the general owner in such case support this action ™^'^^s*' 
 even against such bailee for mere abuse ; though if a bailee destroy the j' ^nj""® 
 thing, trespass may be supported if the injury were forcible. If, however, ally, not" 
 the general owner merely permit another gratuitously to use the 'chattel, under pro- 
 such owner may sue a stranger in trespass for an injury done to it while it °^*'' 
 was so used (A). 
 
 In the second case also, that of the bailee who has an authority coupled 
 with an interest, it should seem that trespass may be supported, though he 
 never had actual possession, for any injury done during his interest (i); as 
 in the case of a factor (1), or consignee of goods in which he has an inter- 
 est in respect of his commission, &c. (/c). The quantity or certainty of 
 the interest is not material, and therefore a shop-keeper may maintain tres- 
 pass for taking goods sent to him on sale or return {V). So a tenant for 
 years has a qualified property in trees whilst growing, and may support 
 trespass for cutting them down unless they were excepted in the lease ; 
 though he cannot support this action merely for carrying the trees away 
 (m) ; and if a person have a right to cut all the thorns in such place, he 
 may sustain trespass against any one who cuts them down, even against 
 the grantor ; but if he have only a right of estovers, and the grantor cuts 
 the whole, the remedy is case, and not trespass (w) ; and a mere gratui- 
 tous bailee (o), or an executor de son tort (p), may support this action. 
 Other instances have been before given (jq). 
 
 In the third instance, that of a bailee, &c. with a mere naked authority 
 coupled only with an interest as to remuneration, he may also support this 
 action for an injury done while he was in the actual possession of the 
 thing ; as a carrier, factor, pawnee, a sheriff, &c. (r) (2) ; but it is other- 
 wise in the case of a mere servant (s) ; and if a sheriff omit to continue 
 in possession' of the goods under an execution, he cannot maintain the 
 action (<). 
 
 An instance of the /oMr^A description is the finder of any article, who 
 may maintain trespass or trover against any person but the real owner (u) 
 (3) ; and even a person not having a strict legal right, but being in 
 
 (g) 4T. E. 489; 7 T. R. 9; 3 Lev. 309; 394. 
 
 3 Campb. 187; 15 East, 607; ante, 152. (o) 1 B. & Aid. 59. 
 
 (A) 2 Campb. 464; 3 id. 187; 16 East. (p) Jinte, 151. 
 
 83. (9) ^nte, 63, 151. 
 
 (f) Ante, 152; 1 B. & P. 45; 2 SaTind.47d. (r) 2 Saund. 47b; 1 Rol. Ab. 551; Wood's 
 
 (/f) 7 T. R. 359. 1 T. R. 113; 1 Hen. Bla. Inst. 93. 
 
 81; Bui. N. P. 33; ante, 152, 153. (s) Owen, 52; 3 Inst. 103; 2 Bla. Com. 
 
 (0 2 Campb. 575. 396; 2 Saund. 47 b, c, d. 
 
 (m) 2 Campb. 491; 2 M. & Sel. 499. See {t) 1 M. & Sel. 711; see 1 D. & R. 307; 2 
 
 further as to trees, ante, 152. id. 755. 
 
 (71 ) 2 Salk. 638; 2 M. & Sel. 499; 8 East, (u) 2 Saund. 47 d; 4 Taunt. 547. 
 
 (1) Vide Colwills). Reeves, 2 Campb. 575. 
 
 (2) Brown v. Manchester, 1 Pick. 232. Vide Barker and Knapp v. Miller, 6 Johns. 195. 
 Gibbs V. Chase, 10 Mass. 125. Whether a depositary may maintain trespass, Harrison v. M'ln- 
 tosh, 1 Johns. 358. See the oases oited, ante, p. 194, n. 3. 
 
 (3) .\ bare possession is sufficient to enable the plaintiff to recover in trespass against a 
 ■wrong doer, who takes the property out of tis possession without authority. . Cook v. Howard, 
 13 Johns. 276; Demick v. Chapman, 11 ib. 132; Schermerhorn v. Van Valkenburgh, ib. 520; 
 Aiken v. Buck, 2 Wend. 466; Butts v. Collins, 13 ib. 143; Hoyt v. Gelston, 13 Johns. 141, 
 661; Jones v. M'Neil. 2 Bailey, 466; Fisher v. Cobb, 6 Vermont, 622; Potter v. Washburn, 
 13 Vermont, 658; Edwards v. Edwards, 11 ib. 587; Harmer v. Wiley, 17 Wendell, 91; Sey- 
 mour V. Brown; Horton v. Hensley, 1 Iredell, 163, Barker v. Chase, 11 Shepley, (24 Maine) 
 330. 
 
170a OP THE FORMS OP ACTION. 
 
 IV. possession, may, it seems, support this action against any person but the 
 
 TEE3PAS8. YQg2i[ owner {xj (1). So a person in possession under an assignment 
 
 2. Injuries fraudulent as against creditors, may support trespass against a person 
 
 l«y!"ot' "^ho cannot show that he was justified in what he did as a creditor Qi/). 
 
 under pro- Assignees of a bankrupt, though they have a constructive possession 
 
 cess. from the time of the act of bankruptcy, cannot support trespass *against 
 
 [ *1'^1 J the sheriff or any other officer acting in obedience to the process of a 
 
 Court of competent jurisdiction, for seizing goods after a secret act of 
 
 bankruptcy ; because such officers acting bona fide ought not for such act 
 
 to be liable as trespassers, but ought to be~ sued in trover, in which only 
 
 the real value of the goods can be recovered (ar). 
 
 As to the third point, the nature of the injv/ry, it may be either by an 
 unlawful taking of the personal chattel, or by injuring it whilst in the pos- 
 session of the general owner, or of a person having a special property in 
 it as a bailee. 
 
 8dly. The Trespass is a concurrent remedy with trover for most illegal takings (a) 
 nature of (2). Thus, even in the case of a distress for rent, where there has been 
 to ft'"''T^ an illegal taking, as for distraining when no rent was due, or taking im- 
 sonai pro- plcmeuts of trade, or beasts of husbandry, when there was sufficiency of 
 perty, and other property (6); or a horse while his rider was upon him (c) ; or if a 
 of the per- ^jg^ress be made, the outer door being shut, or if the party expel the 
 jnitting, tenant, or continue in possession, without leave, more than five days, 
 trespass lies (d) (3) ; for the statute (e) (4) which enacts that a party 
 distraining for rent shall not be a trespasser ab initio (/), only relates to 
 irregularities after a lawful taking {g). There is no doubt that trespass 
 lies for any forcible malfeasance after legal entry to distrain, and that the 
 tenant's remedy is not at all affected by the statute. But the statute is 
 clear that no subsequent irregularity shall render a legal distress a tres- 
 pass ab initio, and confines the tenant's action to that only which is ir- 
 regular (li) . Of course case is the remedy if the subsequent irregularity 
 be not forcible, or be of a nature which in other respects renders it a mat- 
 ter for that form of action (€). 
 
 This action also in general lies though there was no wrongful intent (5) 
 
 (x) 3 Wils. 332; 2 Stra. 777; 1 Salk. (c) 6 T. R. 138; 4 T. B. 569. 
 
 390; 2 Saund. 47 e. {d) 1 East, 139; 11 East, 395; 2 Campb. 
 
 (y) 2 Marsh. 233. 115; ante, 138. 
 
 (z) 1 Burr. 20; 1 T. R. 480; ante, 130, ' (e) 11 Geo. 2, c. 19. 
 153; IM. & P. 541; 4 Bing. 497, S. C. (/) 1 Hen. Bla. 13. 
 
 (a) 3 Wila. 336 ; ante, 161. {g) 1 Esp. N. P. 382, 883. 
 
 (b) P. N. B. 88; 4 T. B. 565; 1 Burr. 679. {h) See 2 Campb. 116; 11 East, 195. 
 ante, 138. (i) Id. 
 
 (1) But see Butts ». Collins, 13 Wend. 139, 
 
 (2) Trespass is maintained for taking goods by proof that the defendant unlawfully exer- 
 cised an authority over the chattels, against the will and to the exclusion of the owner, though 
 there was no manual taking or removal. Miller v. Baker, 1 Metcalf , 27. 
 
 (3) Van Brunt v. Schenck, 13 Johns. 417; Kerr v. Sharp, 14 Serg. & Rawle, 399. 
 
 (4) The 19th sect, is not in force in Pennsylvania, Kerr v. Sharp. 
 
 (5) Vide Higginson v. York, 5 Mass. 341 ; Colwell v. Reeves, 2 Campb. 575. There must be 
 some blame or want of care, and prudence to make a man answerable in trespass. Vincent v. 
 Stinohour, 7 Vermont, 62. 
 
 An accident, to excuse a trespass, must be unintentional, unavoidable, and without the least 
 fault on the part of the trespasser. Jennings v. Fundeburg, 4 M'Cord, 161. But where a 
 party becomes possessed of the property of another, for instance a wagon, and changes part of 
 its appendages, by substituting whippletreea and devices for those attached to it when it came 
 
IV. TRESPASS. 171 
 
 ia committing the tort (A); as if a sheriff, or a messenger on behalf &f as- ^^^^ 
 signees of a bankrupt, by mistake take the goods of a wrong person (/) ™=s^^_'- 
 (1), if a sheriff illegally take the goods of B. under an execution against ^^ ^"{"o** 
 the goods of A., it seems that even the sheriff's vendee is liable; but My'.^noT' 
 it seems the latter is not liable if the process were only irregular, under pro- 
 and the real defendant's goods were taken (m) ; but if a second °^^' 
 trespasser take goods out of the custody of the first trespasser, 
 the owner may support trespass against such second taker, his act 
 not being excusable (w). This action may be supported against a 
 bailee *who has only a bare authority, as if a servant take goods [ "l^S ] 
 of his master out of his shop, and convert them (o) (2), so it is sustaina- 
 ble by an outgoing tenant against the incoming tenant, for taking manure, 
 though the latter had a right to it on paying for it (p). But in general 
 trespass is not sustainable against a bailee who has the possession coupled 
 with an interest, unless he destroy the chattel Qq'); nor against a joint-tenant 
 or tenant in common for merely taking away and holding exclusively the 
 property from his co-tenant (r) because each has an interest in the whole, 
 and a right to dispose thereof (s) ; but if the thing be destroyed, trespass 
 lies (<), and case may be supported for injuring the thing (m) (3). A 
 bailee of a chattel for a certain time, coupled with an interest, may sup- 
 port this action against the bailor for taking it away before the time (re) ; 
 and it lies, though after the illegal taking the goods be restored (y). 
 When the taking is unlawful, either the general owner or the bailee, if 
 answerable over, may support trespass, but a recovery by one is a bar to 
 an action by the other (2). Trespass will not lie for a refusal to deliver 
 when the first taking was lawful ; trover or detinue being in such case 
 the only remedies (a). 
 
 (k) Ante, 129; 3 Lev. 347; 1 Campb. 497; (r) 1 T. R 658; Cowp. 480; 2 Saund. 47g; 
 
 2 id. 576. ante, 79. 
 
 (I) Ante, 129; 2 Campb. 576; Bro. Ab. (s) 1 Lev. 29; 8 T. R. 145; Co. Lit. 200 a; 
 
 Propertie, 23. It would seem that no action Cowp. 217; 4 East, 121. 
 
 would lie if an injury arose from a mere acoi- (t) Co. Lit. 200 a; ante, 79. 
 
 dent, and unavoidably, without any default or (u) 8 T. R. 145; 1 Ld. Raym. 737. 
 
 carelessness on the defendant's part. Ante, (x) God. 173; F. N. B. 86, n. a. 
 
 130. « iy) Ante, 161; Bro. Ab. Trespass, pi. 
 
 (m) See ante, 80; 3 Stark. R. 130; 2 D. & 221 ; 2 Rol. Ab. 569, pi. 3, 6. 
 
 R. 1. (z) 2 Saund. 47 e; Bro. Trespass, 67; 2 
 
 in) Sid. 438. Rol. Ab. 569, P. 
 
 (0) 1 Leon, 87;Cro. Eliz. 781;5 Co. 13 b. (o) Sir T. Raym, 472; 2 Vent, 170, 2 
 Ip) 16 East, 116. Saund. 47 0, p. 
 
 (?) Ante, 169. 
 
 into his possession, and the owner re-possess himself of the wagon, mthout knowledge of the 
 change in its appendages, trespass will not lie against him for the substituted articles; the rem- 
 edy of the party, if any, is by action of trover. Parker v. Walrod, 13 Wend. 296. 
 
 (1) Proof of any unlawful exercise of authority over goods will support trespass, although 
 without force; as by an attachment, although there was no removal of the property. Gibbs v. 
 Chase, 10 Mass. 125; Robinson D.Mansfield, 13 Pick. 139; Wintringham 0. Lafoy, 7 Cowen, 
 735; Miller v. Baker, 1 Metoalf, 27. 
 
 (2) Vide East's P..C. 564; Adkins v. Brewer, 3 Cowen, 201; Allen v. Crofoot, 5 Wend. 506. 
 The distinction is, where a party enters a house by license he will not be considered a trespasser 
 ab initio by reason of an unlawful act done after such entry, but where authority to enter is 
 given by law, and the party abuses the authority thus obtained, he will be considered a tres- 
 passer ab initio. lb. - 
 
 ■ (3) See Chesley ». Thompson, 3 New Hamp. 9; Gidney v. Earl, 12 Wend. 98; St. John v. 
 Standring, 2 Johns. 468. In Whitney v. Ladd, 10 Vermont, 165, it was held, that, if one of 
 two joint owners of personal property, forcibly take it from the officer, who has taken it on le- 
 gal prpcess against the other joint owner, tl)« officer may maintain trespass therefor. 
 
 Vol. L 26 
 
172 OF THE FORMS OP ACTIONS. 
 
 IT-. So trespass lies for any immediate injury to personal property occasioned 
 
 XBESPASB. ^^ actual or implied force, though the wrong doer may not take away or 
 2. Injuries dispose of the chattel ; as for shooting or beating a dog or other live ani- 
 My,"riot^ mals ; or for hunting or chasing sheep, &c. (&) ; or for mixing water with 
 under pro- wine (c) ; Or unintentionally running down a ship or a carriage (li). 
 "*^^- But it is said though without reason, that for a mere battery of a horse, 
 
 not accompanied with special damage, no action can be supported (e)(1). 
 It is said, that if a bailee of a beast, &c. kill it, trespass cannot be sup- 
 ported, but only ciase (/). But this position appears to be erroneous ; 
 for although the act may not render the party a trespasser ab initio, yet he 
 may be considered as a trespasser for the wrongful act itself {g). So 
 case (Ji), or assumpsit, for a breach of the implied contract, may be sup- 
 ported (i) ; and it seems clear that if a person or bailee, though coupled 
 [ *173 ] with a beneficial interest, as of sheep to feed his *land, or of oxen to plough 
 it (k), and he kill or destroy them, trespass lies because his interest 
 therein is thereby determined ; the same as when a tenant at will cuts 
 down trees (J). So one joint-tenant or tenant in common may support 
 trespass against his co-tenant, when the chattel is destroyed i^m.). But 
 for a mere misuser by one tenant in common case is the remedy (n) ; and 
 if goods bailed be not destroyed, trespass does not, it seems, lie against a 
 bailee, coupled with an interest, for merely abusing the chattel (o), pro- 
 vided an interest and the right of possession still continue in the bailee, 
 and a general owner has no immediate right of possession at the time the 
 injury was committed ; nor can trespass be supported even against a 
 stranger, unless there be an immediate right of possession (/>). Trespass 
 will not lie for a loss or injury occasioned by a bailee's negligence ; be- 
 cause it does not lie for any nonfeasance (g'). 
 
 In some instances trespass may also be supported for any wrongful act 
 or injury committed to personal property whilst in the lawful adverse pos- 
 session of the wrong-doer ; as where he has been guilty of an abuse which 
 renders him a trespasser ab initio (r). This rule prevails in general 
 wheneverthe person who first acted with propriety under an authority or 
 license given by law, afterwards abuse it, in which case the taking; 
 as well as the real tortious act, may be stated to be illegal, as in the Six 
 Carpenters' case (s) (2). So trespass lies for cutting nets, lawfully taken 
 
 (6) BameB. 452; 8 T. B. 37; Hob. 283; {!) 7 T. R. 11; Co. Lit. 57 a; Cro. Eliu. 
 
 IS' F° N. B. 88. 1!%^ ^°- ^^ "' ^^ ^- ^2 «; Dyer. 121 b, 
 
 (d) 1 Campb. 497; 2irf. 465; 8 East, 593; \m) 2 Saund. 47; see further, ante. 79. 
 
 but see 2 New Rep. 117. What is a destruction for this purpose, id. 
 
 (c) 2 Stra. 8, 72; qumre, Barnes, 452. („) 8 T. R. 146; 2 Saund. 47 h 
 
 (/) Bac. Ab. Trespaas, G. 1 ; Moor, 248. (o) 2 Saund. 47 e 
 
 (jf) Co. Lit. 57 a; Cro. Eliz. 777,784; 5 Co. (p) ^ T. R. 9; 4 T R 489 
 
 13 b; Bro. Trespass, pi. 295; 1 Leon. 87; 11 (j) 5 Co. 13 b, 14 a; ante', 126. 
 
 ih^rT^tT A .(»•) Bac. Abr. Trespass, B., There the doo- 
 
 f i^ Cr'. wi, 777 "^Ri •'"°v °^ * P'^'^'y beooming a trespasser ab initio 
 
 S Kt!57."8; Cro. Eliz. 784. " ^^0.^6 'b' ^' ^'- '^^ ' "''^'"'' "^• 
 
 wril.lfulivTwrfi.^S* ^«»g»^«*»''\''ho turns into the highway a horse, which he finds 
 wrongfully m his field, although the horse stray away. Cary i.. Little 6N Hamn 213- 
 
 l"S'Tho™e°w^rdnlS ""T""*' 'K ^"' *-P«««^i" li^against one who chafes he 
 
 Caldwdl. 7 CgeT, 38. ^' '' *° '"° '"P"" " ''^''*' ^ *"' ^^ ^''^- ^'"^^ "• 
 
 (2) vide Sackrider v. M'Donald, 10 Johns. 253; Hopkins v. Hopkins, 3d, 369; Hazard 
 
tV. TKESPASS. 173 
 
 damage feasant (J) ; or for ■working a horse, &c. distrained (u). But in ^■ 
 the case of a distress for rent, we have seen that in general a party cannot ''^^•^^s. 
 become a trespasser ab initio by an irregularity, when the caption was 
 lawful (a;) (1). / s J'- y 
 
 Trespass is also the proper remedy to recover damages for an illegal 3dly. To 
 entry upon, or an immediate injury to, real property corporeal, in the pos- ""' V^°V- 
 session of the plaintiff (?/) (2). This remedy, in its application to injuries ™''^" 
 to real property, may be considered with reference, 1st, to the nature of 
 the property affected ; 2dly, to the plaintiff's right thereto ; and Srdly, to 
 the nature of the injury, and by whom committed. 
 
 1st. "With respect to the nature of the real property affected, it must in 1st. The 
 general be something tangible and fixed, as a house, a room, *out-house, "at"™ of 
 or other buildings or land. Trespass may be supported for an injury to property 
 land, though not fenced from the property of others ; and by the owner of aflected. 
 the soil, &c. though it be an highway (3) or a public bridge ; the term [ *174 ] 
 close being technical, and signifying the interest in the soil, and not merely t 
 a close or inclosure in the common acceptation of that term (z) (4). It 
 lies, however temporary the plaintiff's interest, and though it be merely 
 in the profits of the soil, as vestures term, or herbagii pastures (a), pri- 
 ma tonsura (6) (6), or chase, free warren, &c. (c) if it be in exclusion of 
 others (rf). So where a person contracted with the owner of a close for 
 the purchase merely of a growing crop of grass there, it was decided that 
 the purchaser had such an exclusive possession of the close, though for 
 a limited purpose, that he might maintain trespass quare clausum fregit 
 against any person entering the close, and taking the grass, even with the 
 
 (t) Cro. Car. 228. 1004; 6 East, 154; 1 Burr. 133. 
 
 (u) Cro. Jao. 146; 1 T. R. 12; 3 Wils. 20. (o) Co. Lit. 4b; 5 East, 480; 6 East, 606, 
 
 (a;) Ante, 1-38. 609; Dyer, 285, 1, 40; Bro.Tre9pas3,pl.279; 
 
 (y) 3 Burr. 1114, 1556; 5 East, 485, 487; Moore, 302; 2 Bol. Ab. 552, pi. 8; Palm. 47; 
 
 11 East, 56; Bao. Ab. Trespass, C. 8. As to 6 T. R. 535. 
 immediate and consequential injuries, see ante, (i) 7 East, 200. 
 127. (c) 2Salk. 637. 
 
 (z) Boot. & Stud. 80; 7 East, 207; 1 Stra. (rf) Id. ; 2 Bla. B«p. 1150; 8 M. & Sel. 499. 
 
 V. Israel, 1 Binn. 240. " In every case to be met with in the books, the Court in considering 
 who shall be deemed a trespasser ab initio, for the abuse of a legal trust, confine the action for 
 such an act to those who were either the actors in the first taking, or to such as by the relation 
 they stood in to the first takers, made themselves parties by their assent before or after the act. 
 It would be palpably absurd to say, that a man totally unconcerned with the original caption o^ 
 goods, shall, for an after act to those goods, be deemed to have originally taken them." Per 
 Spenoeb, J., Van Brunt v. Sohenck, 11 Johns. 382. Hence it was held, that where A., a cus- 
 tom-house officer, having seized a vessel as forfeited, while the vessel was in his possession, per- 
 mitted B. (who was also a custom-house officer, though no way engaged in the original seizure) 
 to make use of her, B. could not be made a trespasser ab initio. Van Brunt v. Schenck, 11 
 Johns. 377. 
 
 (1) See Laws of N. T, sess. 36. o. 63. s. 10; 1 K. L. 436; 2 Eev. Stat. 504, s. 28. 
 
 (2) The gist of an action of trespass quare clausum f regit is the breaking and entering the 
 plaintiff 's close. Euoker v. M'Neely, 4 Blaokf. 181 ; Rasor v. Quails, ib. 287. 
 
 (3) Aco. Cortelyou v. Van Brundt, 2 Johns. 257; Commonwealth v. Peters, 2 Mass. 127. 
 
 (4) Vide Van Rensselaer v. Van Rensselaer, 9 Johns. 377. For an appropriation of a road, 
 trespass lies by the owner of the land through which the road passes. And evidence of posses- 
 sion of the land on each side raises a presumption of ownership in the plaintiff. Prima facie 
 therefore the fee of the land over which the road passes belongs to him. The law will not pre- 
 sume a grant of a greater interest than is essential to the enjoyment of the easement; the rest is 
 parcel of the close. Gidney v. Earl, 12 Wend. 98. 
 
 (5) Vide Stewart v- Doughty, 9 Johns. 113. 
 
174 OF THE FOBMS OP ACTIONS. 
 
 ^- assent of the owner (e)(1) ; so it lies for a trespass on a portion of a 
 TRESPASS. pQjmj^Qj^ ggl^j a,fter an allotment, authorizing the feeding the same only 
 8. iDjuries fQj. g^ certain time(/). So a person having an exclusive right to dig 
 nortrnder turves or coals, &c. may support trespass quare clausum fregit against 
 process, another for digging and taking away turves, &c. therein, though others 
 had common of pasture over the land (g^. And if J. S. agree with the 
 owner of the soil to plough and sow it, and to give him (the owner) half 
 the profits, J. S. may support trespass quare clausum fregit against a 
 stranger for treading • down the corn (A)(2). But unless the plaintiff 
 have an exclusive interest, case is the only remedy, as if he had only a 
 profit a prendre, as a right of common of pasture or common of piscary (i); 
 and because the plaintiff hath not in law the exclusive possession of a pew, 
 trespass cannot be supported even against a stranger for entering it (A;) ; 
 but it seems that for breaking a pew, the owner may maintain trespass (t) ; 
 and the person may support trespass against a person preaching in a 
 church without his leave (m). It may also be brought by a person who 
 erected a tombstone, against a person who wrongfully removes and de- 
 faces it (w). But the rule is, that case is the remedy for disturbing a 
 party in the enjoyment of a mere easement (o). 
 
 This action also lies for an injury to plaintiff 's land covered with 
 
 water (3), but if the interest be merely in the water, case is the only 
 
 [ *175 ] "remedy (jo), when the trespass is in the plaintiff's river, pond, &c. it is 
 
 to be described as an entry on the plaintiff's close or land covered with 
 
 water (5) ; or it may be charged that the defendant broke and entered a 
 
 pool (r) ; or that the defendant broke and entered the several fishery of 
 
 the plaintiff, &c. and fished therein for fish ; but it is disputed whether it 
 
 lies for fishing in a free fishery (s). 
 
 2dly. The 2dly. With respect to the plaintiff's right or interest in the property 
 
 the pUin- affected, we have given it a partial consideration in the preceding pages (f). 
 
 tiflf's The ^15^ of this action is the injury to the possession; and the general 
 
 rigM. rule is, that unless at the time the injury was committed the plaintiff was 
 
 in actual possession, trespass cannot be supported (m) (4), and though 
 
 (c) 6 East, 602. (o) Ante, U2. 
 
 (/) Cro. Eliz. 421; 5 T. E. 885. (p) Yelv. 143; M'Keniie v. Hulet, 2 Tay- 
 
 (17) 8 Burr. 1825, 1560, 1,2; 6 East, 606. lor, 181. 
 
 (A) Bui. N. P. 85; 4 Burr. 1827; Co. Lit. (?) Co. Lit. 4 b; Yelv. 143. 
 
 4 b ; but see Cro. Eliz. 148, and 3 Leon. 331. (r) Yelv. 143; Co. Lit. 5 b. 
 
 (i) Cro. Eliz. 421; Burr. 1827; Salk. 637; (s) 2 Salk. 637; Co. Lit. 4 B. 122 a; 2 
 
 Bro. Trespass, pi. 174; 2 Rol. Ab. 552, n. pi. Bla. Com. 40; 2 H. Bla. 182; Cro. Car. 564; 
 
 8; Standing-place, 2 East, 190; 1 T, R. 430. see 6 B. & C. 897; Chitty's Game Laws, 2d 
 
 (&) 1 T. R. 530; ante, 142; 5 B. & Aid. edit. 283, 299. 
 
 861; 8B. &C.294. (0 Ante,lb,Ul; and see in general , Com. 
 
 (.1) Ante, 142; 3 Bing. 137, 138; Jackson Dig. Trespass, B.; Vin. Ab. Entry, G.4, Tres- 
 
 V. RouDSville, 5 Metcalf, 127. pass, H. 
 
 (m) 12 Mod. 420, 433. (u) 6 East, 485, 487. 
 
 (n) 3 Bing. 136. 
 
 (1) Austin V. Sawyer, 9 Cowen, 39. So, a grantee of trees may maintain trespass quare 
 clausum fregit against the owner of the soil for cutting them down. Clap v. Draper, 4 Mass. 
 266; Howard v. Lincoln, 1 Shepley, 122. So, it lies by a tenant at will, who, on the tenancy 
 being put an end to, is entitled to the emblements. Stewart 0. Doughty, 9 Johns. 108. So, by 
 a lessee for years who, on the expiration of the tenancy, is by the custom of the country enti- 
 tled to an away.going crop. Stultz v. Dickey, 5 Binn. 285; Van Doren v. Everett, 2 South. 
 460; Dorsey v. Eagle, 7 Gill & Johns. 321. 
 
 (2) Or they may maintain a joint action. Foote and Litchfield v. Colvin, 8 Johns. 246. 
 (8) See Smith v. Ingram, 7 Iredel, 175; M'Kenzie d. Hulet, 2 Taylor, 181. 
 
 (4) Ace. Stnyvesantw. Tompkins, 9 Johns. 61; Wickham v. Freeman, 12 Johns. 183; Van 
 Brnnt ». Schenck, 11 Johns. 885; Yates v. Joyce, 11 Johns. 140; Schenok v. Mundorf, 2 P. A. 
 
tV. TRESt'ASS. 176 
 
 the title may come in question, yet it is not essential to the action that it iv. 
 should (a;) (1). Therefore, a landlord cannot, during a subsisting lease ^^'^^s^- 
 or demise, support trespass for an injury to the land, but the action of f' ^"J?/'^ 
 trespass must be in the name of the tenant (2). But a feoffment with notTnder 
 livery of seisin made on land determines the tenancy at will, though the process. 
 tenant be not present nor assenting to the feoffment, and the feoffee may 
 maintain trespass against the tenant at will who afterwards enters on his 
 possession {y'). ■ The landlord can only proceed in the above instances in 
 case as a reversioner ; and even to support that remedy the injury must 
 be of such a nature as to affect and prejudice his reversionary interest (z}. 
 But if trees or other property excepted in the lease be felled, or trees not 
 excepted be felled, and afterwards carried away, the landlord may sup- 
 port trespass (a) (3). The mere occupation by game-keeper or other serv- 
 ant of a lodge or other premises, as a hired servant, and without paying 
 rent, is to be considered as the possession of the employer, and the latter 
 may declare as on his own possession (6)(4). The payment of rent by 
 the plaintiff, his exercise of the privilege of shooting, and the taking of 
 the grass without interruption by a third person, by the plaintiff's license, 
 were held to be a sufl&cient possession to enable him to maintain trespass 
 for breaking and entering woodland belonging to the crown (c). But 
 where the plaintiff who had built a chapel conveyed it to the defendant by 
 a deed, the validity of which was questionable, and the defendant took 
 possession, and gave the key to a gardener, who with his permission 
 lent it to the plaintiff to preach in the chapel and thereupon *the plains [ *167 1 
 tiff locked up the chapel, and refused to turn the key, it was held he had 
 not sufficient possession to maintain trespass (of). 
 
 (X-) Willes, 221; 1 East, 244; 10 East; (a) Anie,es. When noti araie, 64. 
 
 65, 74. lb) 16 East. 33, 36; Lit. Eep. 139. 
 
 (y) Ball V. Cullimore and another, 1 Gale, Xc) 4 B. & C. 574. 
 96. (d) 5BiDg 7. 
 
 («) Ante, 63i 
 
 Browne, 107; Addleman v. Way, 4 Yeates, 218J 3 Serg. & Rawle, 514; Allen ». Thayer, 17 
 Mass. 299; Bartlett v. Perking, 1 Shepley, 87; Holmes v. Seeley, 19 Wendell, 507; Ripley ii. 
 Tale, IBVeriliont, 257; Moore ». Moore, 8 Shepley, 350; Cong. Society u. Baker, 15 Vermont, / 
 
 119; Dorsey v. Eagle, 7 Gill & Johns. 321. See however Bulkley Vi Dolbeare, 7 Conn. 232; 
 Campbell v. Proctor, 6,Greenl. 12; Bakersfield R. C. So. o. Baker, 15 Vermont, 119; M'Grady 
 •v. Miller, 14 ib. 128. A mortgagee may maintain trespass before condition broken, or entry. 
 Woodruff V. Halsey, 8 Pick. 333. As to the right to the mortgagor to sustain trespass against 
 the mortgagee or others, see Howe v. Lewis, 14 Pick. 329; Mayo v. Fletcher, ib. 525; Flagg v. 
 Flagg, 11 ib. 475; Fernald v. Linscott, 6 Greenl. 234. 
 
 (1) Vide Hyatt v. Wood, 4 Johns. 157; State v. Newton, 5 Blaokf. 455. A person having a 
 legal right of entry on land, and entering by force, is not liable to an action of trespass. 
 Hyatt V. Wood, 4 Johns. 150. But, if a person, having a legal right to enter the house of ano- 
 ther for one purpose, forcibly enter for another purpose, he becomes a trespasser therebyi 
 Abbott V. Wood, 1 Shepley, 115. 
 
 (2) Ace. Campbell v. Arnold, 1 Johns. 511; I'obey v. Webster, 3 Johns. 168. See 2 Pick. 
 123; 3 Pick. 255; Holmes v. Seeley, 19 Wendell, 507; Rousin v. Benton, 6 Missouri, 592. But 
 trespass will lie by the owner of real estate against a person committing waste by permission of 
 the tenant at will; Daniels v. Pond, 21 Pick. 867; but not for a mere disturbance of the posses- 
 sion. French v. Fuller, 23 Pick. 104. Trespass will, not lie for the reversioner against a per-, 
 son committing waste under authority of the tenant in dower. Shattuck v. Gragg;- 23 Pick. 88. 
 
 (3) See 7 Conn. 285; Williams v. Lewis, 3 Day, 498; Gambling v. Prince, 2 Nott and M'C. 
 138. So, if land be granted to A, with a reservation of all mill-seats, and the grantor permit B. 
 to enter and erect a mill, the entry of B. and the erection of a mill, is a severance of the free- 
 hold, and renders the mill a distinct close; and B. may maintain trespass against A. for pulling 
 down the mill. Van Rensselaer v. Van .Rensselaer, 9 Johns. 377 ; Jackson v. Buel, Id. 299. 
 But see Torrance v. Erwin. cited 6 Binn. 290. 
 
 . (4) Davis V. Claney, 3 M'Cord, 422. 
 
176 OF THE FORMS OP ACTIONS. 
 
 IT. Actual and exclusive possession, -without a legal title, is sufficient 
 
 TBEspAsa. against a -wrong doer (1), or a person who cannot make out a title, prima 
 8. Injuries y^gjg entitling him to the possession (e) ; or sho-w any right or authority 
 not under ^o"^ *^^ ^^^^ Owner (/). Therefore, a person in possession under an 
 proMss.*"^ illegal lease from a clergyman (§■) ; or under a mere license or void de- 
 mise from the Crown (A) ; or even it should seem an intruder upon Crown 
 land, but not treated as such (i) ; may maintain this action. A tenant 
 for years (A;) ; a lease at will (/) ; and a tenant at sufferance (m) ; may 
 support this action against a stranger ; or even against his landlord (2) 
 unless a right of entry be expressly or impliedly reserved to the latter (m). 
 And the contractors for making a navigable canal having, with the per- 
 mission of the owner of the soil, erected a dam of earth and wood upon 
 his close across a stream there, for the purpose of completing their work, 
 have a possession sufficient to entitle them to maintain trespass against a 
 wrong-doer (o)^ But there must be actual possession, and a mere right 
 to enter is not sufficient ; and it has been held, that commissioners of sow- 
 ers could not maintain an action against commissioners of harbor, for 
 breaking down a dam erected by the former, as such commissioners, 
 across a navigable river ; as the authority to be exercised by them on be- 
 half of the public does not vest in them such a property or possessory in- 
 terest as would enable them to maintain such action (^). And the pro^ 
 prietors of a navigation, having by a statute a mere easement or right to 
 use land for the purposes of the navigation, do not necessarily acquire 
 such interest in the soil of a bank adjoining to, and formed out of the 
 earth excavated from a new channel, made for the first time under the 
 act, as will enable them to maintain trespass (q~). 
 
 There is a material distinction between personal and real property as to 
 the right of the owner ; in the first case we have seen that the general prop- 
 erty draws it to the possession, sufficient to enable the owner to support 
 trespass, though he has never been in possession (r) (3) ; but in the case of 
 land and other real property, there in no such constructive possession (4), 
 
 (e) 1 East, 224; 11 Bast, 65,67; 4 Taunt. (m) Id.; 13 Co. 69; 1 East, 245, n. a.; 
 547'; and see 2 C. & P. 83. Per Best, C. J., Com. Dig. Trespass, E. 1; 1 Saund. 8B2, n. 5. 
 
 5 Bing. 9. {») 11 Mod. 209; Com. Dig. Biens, H.; 11 
 
 (/) 11 East, 65; 3 Metoalf, 239. Co. 48. 
 
 (j/) 1 East, 244. (o) 5 B. & AW. 600. 
 
 (h) 4 B. & C. 574. (p) 2 Moore, 666; 1 B. & C. 221. 
 
 (i) See id. per the Judges. {q) 1 B. & C. 205; 2 D. & R. 316. 
 
 (fe) 2 Roli Ab. 551; Sid. 347. (r) Ante, 62, 63; 2 Saund. 47 a; Bui. N. 
 
 (0 Jd. P. 33. 
 
 (1) Van Rensselaer «. Van Rensselaer, 9 Johns. 381. See Hall ». Davis, 2 Carr. & Payne, 
 83; Hall i). Chaffe, 13 Vermont, 150; Ralph v. Bayley, 11 Vermont, 521; Moore «. Moore, 8 
 Shepley,350; Myriok v. Bishop, 1 Hawks, 485; Richardson v. Merrill, 7 Missouri, 333; Webb 
 V. Sturtevant, 1 Soammon, 181; Sawyer v. Newland, 9 Vermont, 883; Barnstable v. Thatcher, 
 8 Metcalf, 239. Where the possession has been mixed, and the plaintiff shows no title, he can- 
 not object to the title of the defendant. Brown v. Pinkham, 18 Pick. 172 ; Barnstable v. Thatch- 
 er, B Metcalf, 239. 
 
 (2) It has been held that a tenant at sufferance cannot maintain trespass against his landlord. 
 Wilde V. Cantillon, 1 Johns. Cas. 123 ; Hyatt v. Wood, 4 Johns. 150. But see Faulkner v. An- 
 derson, Gilm. 221. Where a tenant at will of a house remains in possession, after refusing or 
 neglecting to pay the rent that is due, and after the landlord has given him in writing, fourteea 
 days' notice to quit, he cannot maintain an action of trespass quare clausum f regit against the 
 landlord for entering the house with force and arms and taking away the windows and inside 
 doors thereof. Meader v. Stone, 7 Metoalf, 147. 
 
 (3) Mather v. Trinity Church, 3 Serg. & Rawle, 612; North ■». Turner, 9 Serg. & Rawie, 
 244. 
 
 (4) Ace. Campbell ». Arnold, 1 Johns. 512; Btultz v. Dickey, 6 Binn. 290; Webb ». Stur- 
 
IV. TRESPASS. *177 
 
 and unless the plaintiff had the actual possession by himself or his ser- it- 
 vant (s), at the time when the injury was committed, *he cannot support '^^^'^■^^' 
 this action (if) (1). Thus, before entry and actual possession, a person can- ^- Injuries 
 not maintain trespass, though he had the freehold in law ; as a parson before norunder 
 induction (m), or aconusee of a fine (a;), or a purchaser by lease or release, process, 
 though the statute executes the use {y), or an heir (sr), or a devisee against 
 an abator (a), or a lessee for years before entry (6). And it seems to 
 be doubtful whether the assignees of a bankrupt can sue for a trespass be- - 
 fore the bankruptcy ; at all events it has been decided that the bankrupt may 
 maintain such action (c). . But if the party having the legal title to land, 
 enter thereon, (as by going on the land, and beginning to plough, &c.,) 
 with intent to take possession, although he does not declare that such is his 
 intention, he may maintain trespass against a person wrongfully in posses- 
 sion at the time of the entry, and who, without quitting possession, desires 
 the owner to go away, and in fact continues his wrongful possession after- 
 ward (rf). The party wrongfully holding possession of land, cannot treat 
 the rightful owner who enters on the land as a trespasser (e). A person 
 o/der induction may maintain this action for glebe land, though he make no 
 actual entry, for the induction puts him in possession of part for the whole 
 (/) ; and a disseisee may have it against a disseisor for the disseisin it- 
 self, because he was then in possession (2) ; but not for an injury after 
 the disseisin (g-), until he hath gained possession by re-entry, and then he 
 may support this action for the intermediate damage (3) ; for after the 
 
 (s) 16 East, 33. (A) Bao. Ab. Leases, M.; Plowd. 142. 
 
 («) 5 East, 485, 487; Bao. Ab. Trespass, (c) 8 Taunt. 742; 3 Moore, 96, S. C.; see 
 
 C. 3. 3 B. & A. 225; 2 B. & C. 293. 
 
 (u) Vin. Ab. Entry, G. 4, and Trespass, S.f (d) 7 B. & C. 399. 
 
 Bao. Ab. Leases, M.; Plowd. 528. (e) 7 T. B. 431; 7 Moore, 474; 1 Bing. 
 
 (a;) 2 Leon, 147. 158, S. C. , 
 
 (y) Carter, 66; Vin. Ab. Trespass, S. pi. (/) 2 B. & Aid. 470. 
 
 13, 14; Nov. 73; Com. Dig. Trespass, B. 3. (§•) 2 Rol. Ab. 523; Dyer, 985; 3 Bla. 
 
 (a) Plowd. 142; 2 Mod. 7. Com. 210. 
 
 (a) 2 Mod. 7. 
 
 tevant, 1 Soammon, 181; Dobbs v. Gallidge, 4 Dev. & Batt. 68; Leadbetter v. Fitzgerald, 1 
 Pike,' 448. An unrecorded deed of wild land is not, of itself, sufficient evidence of possession, 
 by the grantee, to entitle him to maintain trespass against a third person. Estes v. Cook, 22 
 Pick. 295. But see M'Gran v. Bookman, 3 Hill,(S. C.) 265. In Cahoon v. Simmons, 7Ire- 
 , dell, 189, it was held, that constructive possession is sufficient to entitle one to maintain tres- 
 j)ass quare clausum. But see Van Brunt o. Schenck, 11 Johns. 385, where Spencer, J., says, 
 " We have carried the principle as to real property, further than has been done in England; 
 and we allow the owner to maintain trespass without actual entry, on the principle that the 
 possession follows the ownership, unless there be an adverse possession." See also Wickhamtj, 
 Freeman, 12 Johns. 184; Bush v. Bradley, 4 Day, 306; Graham v. Houston, 4 Devereux, 232. 
 And what is said by Duncan, J., 3 Serg. & Rawle, 513, 514; Wilcox v. Kinzie, 3 Scammon, 
 224; Robinson v. Douglass, 2 Aiken, 364; Sawyer ». Newland, 9 Vermont, 383; Davis v. 
 Claney, 3 M'Cord, 422; Bulkley v. Dolbeare, 7 Conn. 233; Austin v. Sawyer, 9 Cowen, 39; 
 Wheeler v. Hotchkiss, 10 Conn. 225; Skinner v. M'Dowell, 2 Nott & M. 68; Truss v. Old, 6 
 Band. 556; Bigelow v. Lehr, 4 Watts, 377; Kempton v. Cook, 4 Pick. S05; Walter w. Clarkei 
 4 Bibb. 218; Pearson v. Dunsby, 2 Hill. S. C. 466; Shepard v. Pratt, 15 Pick. 32. 
 
 (3) See Fish ». Eranamon, 2 B. Monroe; Davis v. Wood, 7 Missouri, 162; Gleason v. Ed- 
 mands, 2 Scammon, 448. The possession of part of a tract of land, by the owner of the whole, 
 is the possession of the whole. Kincaid v. Logue, 7 Missouri, 167 ; Stone v. Moore, 7 Missou- 
 ri, 170. 
 
 (2) Rowland v. Rowland, 8 Ham, (Ohio,) 40. 
 
 (3) Vide Tobey i). Webster, 3 Johns. 471; Holmes v. Seeley, 19 Wendell, 507; Putney v. 
 Dresser, 2 iWetoalf, 683; Dorrell ». Johnson, 17 Pick. 263; Bigelow ». Jones, 10 Pick. 161; 
 Allen V. Thayer, 17 Mass. 299; Blood o. Wood, 1 Metcalf, 528; Tyler v. Smith, 8 Metcalf, 
 599; Byrum v. Carter, 4 Iredell', 310; Chadbourne v. Straw, 9 Shepley, 450; Graham v. 
 Houston, 4 Devereux, 232; Culling v. Cox, 19 Vermont, 517. After entry on a tenant at suf- 
 ^rauoe the owner may sustain trespass against him, Porrell v, Johnson, 17 Pick, 263. But 
 
177a OP THE FORMS OP ACTIONS. 
 
 !'• entry the law, by a kind of jus postliminii, supposes the freehold to have 
 TRESPASS, g^jj along continued in him (A). After recovery in ejectment, this action 
 3. Injuries may be Supported for mesne profits, though anterior to the time of the 
 not^under <^emise in the declaration in ejectment (i) (1); unless where a fine has been 
 process, levied, in which case trespass cannot be supported for an injury committed 
 anterior to the entry to aviod the fine {j ). So a copyholder may main- 
 tain an action of trespass for mesne profits from the time of surrender af- 
 ter admittance and subsequent recovery in ejectment (A;). 
 
 A person having a mere incorporeal right (2), as a common of pasture, 
 turbary, &c. cannot support trespass quare clausum fregU for treading 
 r *'178 1 *^°^'^ ^^^ grass growing upon the land upon which he has such right of 
 '- -" common, &c.; for although a commoner has aright to take such grass by 
 
 the mouths of his commonable cattle, he is not to be considered as in pos- 
 session of the land (/). But whenever there is an. exclusive right, tres- 
 pass may be supported, though the party has not the absolute right to the 
 soil, or the whole property therein (m) (3) ; as if a person have an ex- 
 clusive right to cut turf and peat, or cut thorns, he may support trespass 
 quare clausum fregit, and for cutting the turf (w) ; and it may be sup- 
 ported for a trespass in a portion of a common field after the allotment to 
 the plaintiff (o). So the owner of the soil may support trespass, although 
 the public or private individuals have a right of way (jo), or the privi- 
 lege of holding a market (9) thereon, if there be committed on the close 
 any act not protected by the subordinate rights of easements alluded 
 to (4). If the plaintiff were in possession or the lands, &c. at the time 
 when the injury was committed, the circumstance of his having quitted 
 possession before the commencement of the action constitutes no objec- 
 tion (»•) (2)- , 
 
 (ft) Vin. Ab. Trespass, T.; 11 Co. 51 a; N. pi. 8; Bao. Ab. Trespass, 0. 3; 8 Burr. 
 
 3Bla. Com. 210; 2 Eol. Ab. 554; Bro. Tres- 1825; Cro. Eliz. 421. 
 
 pass, pi. 85; Cro. Eliz 540; Com. Dig. Tres- (m) ^nte, 174; 2 Burr. 1563, 1824; 5 
 
 pass, B. 8. East, S85 to 487; Cro. Eliz. 421. 
 
 (i) Run. Eject. 442; 2 Burr. 666, 667; (ra) 3 Burr. 1560, 1824; 3 Salk. 638; 2 
 
 Peake's Evid. 326, .-Vdams' Eject. 24 ed. 338, M. & Sel. 499. 
 
 334; post. (0) Cro. Eliz. 421; 5 East, 480,. 485 to 
 
 ly) 7 T. B. 732, 733; 3 Bla. Com. 210, 487. 
 
 211. ip) 1 Wils. 110. 
 
 (ft) 16 East, 210; 2 Wils. 15. . (9) Id. 107. 
 
 (1) Bro. Trespass, pi. 174; 2Rol. Ab. 522, (r) Bac. Abr. Trespass, C. 3. 
 
 trespass will not lie against a person coming in under the disseisor. Liford's case, 11 Rep. 46. 
 So where the defendant is put into possession under a writ of restitution, on an indictment for a 
 forcible entry against the plaintiff, and the proceedings are [afterwards quashed, and a res- 
 titution aw:irdcd, the plaintiff may maintain trespass against the defendant, but not against 
 a person acting under license from him. Case v. De Goes, 3 Gaines, 261 ; Wickham v. Free- 
 man, 12 Johns. 184. But it was held, that if the defendant pending an action of ejectment, 
 gives up possession to a third person, the latter will be liable for the mesne profit. Jackson v. 
 Stone, 13 Johns, 447. 
 
 (!) Where the plaintiff proceeds for the mesne prq/i/s subsequent merely to the time of the 
 demise laid in the declaration , th6 production of the- judgment in ejectment, and the writ of 
 possession executed, are sufBoient to entitle him to recover; but if he go for time before the de- 
 mise, the defendant may controvert his title. 1 Esp. Dig. 505, 506; Aslin d. Parkim. Burr. 
 668; Jackson v. Randall, 11 Johns. 405. 
 
 (2) If the property injured is tangible, though the right to use it is incorporeal, the person 
 entitled to the use must bring trespass, if the injury be direct. Seneca Road Co. v. Auburn, 
 &c. R. R. Co. 5 Hill, 170; Wilson v. Smith, 10 Wendell, 324. Generally where incorpo- 
 real rights are injured the remedy is by an action on the case, ib. 
 
 (8) Myers v. White, 1 Bawle, 353; Van Rensselaer v. Radcliff, 10 Wend. 639, 
 
 (4) Davenport v. Lamson, 21 Pick. 72. 
 
 (5) Vide Stults v. Dickey, 5 Binn, 286, 
 
IV. TRESPASS, 178 
 
 With respect to -the nature of the injwry to real property, we have ^• 
 seen that trespass can only be supported" when the injurv was committed ^^''f^''- 
 with force actual or implied, and immediate (s). It lies", however unin- ^- Injuries 
 tentional the trespass (0 ; and though the locus in quo were uninclosed ^VSr 
 (m)(1) or the door of the house were open, if the entry were not for a prooeaa. 
 justifiable purpose {x) ; and even shooting at and killing game on anothr sdiy. The 
 er's land, though without an actual entry, is in law an entry (y) ; though in nature of 
 general when the injury was committed off the plaintiff's land, or by ^}-^ '"/'"'J' 
 
 causing something to be suspended over it, but not touching it, the reme- perty; and 
 dy must be case (2r). Where a master ordered a servant to lay down a of the per- 
 quantity of rubbish near his neighbor's wall, but so that it might not touch '°?J°""t 
 the same, and the servant used ordinary care, but some of the rubbish ™ '°^ * ' 
 naturally, and as was to be expected, ran or rolled against the wall, it 
 was held that the master was liable in trespass (a). A mere nonfeasance, 
 as leaving tithe on land, we may remember, is not sufficient to support 
 trespass (6) ; and it should seem that for the mere continuance of an in- 
 jury, for the inception *of which the plaintiff has already recovered dam- [ *179 ] 
 ages, case, and not trespass, is the proper remedy (c). 
 
 As to the person 6;^ and against whom this action may be supported, it 
 should be remembered that actual possession is necessary to support the 
 action, and that if the right of possession be in reversion, it clearly cannot 
 be sustained. Trespass lies against a mere tenant at will for pulling down a 
 hoiise, or cutting trees during the tenancy at will (2), the interest being 
 thereby determined (rf); but against a lessee for years, trespass for cutting 
 down trees does not lie, and case in the nature of waste is the only remedy 
 for the cutting (3), unless the trees were excepted in the lease (e). But if 
 he afterwards take the trees away, trespass or trover lies (/); and if the 
 trees be excepted in the lease, and he cut them down quare clausum /re- 
 git lies for such cutting (g-). And a tenant for years cannot support tres- 
 pass against a stranger merely for carrying away trees cut down during 
 his term (A). 
 
 The proper remedy by one joint tenant or tenant in common of realty, 
 against the other who commits a partial injury to the land or other proper- 
 ty, as by waste, &c. is an action on the case as for misfeasance (i); but if 
 one tenant in common totally destroy the subject-matter of the tenancy in 
 common, his companion shall have trespass (k). If one of two tenants in 
 
 (s) ./2n<e, 125, 126. As to these injuries in (b) Ante,\2<a. 
 
 general, see Com. Dig. Trespass, A. 2; Bac. (c) 1 Stark. 22. 
 
 Ab. Trespass, F. (d) Cro. Eliz. 784; 5 Co. 13 b; 11 Co. 81 b, 
 
 (0 J.nte, 129; 3 Lev. 37; 1 Campb. 497; 82 a; Co. Lit. 57 a; Saville, 84. 
 
 2 Id. 576. (e) Aleyn, 83; 1 Saund. 332, n. 5; 4 Taunt. 
 {u)Jlnle, 174; Boot. & Stud. 30; 7 East, 316; ante, 140. 
 
 207. (/) Id.; 7 T. R. 13; 4 Co, 62; Vin. Ab, 
 
 (i) Ante, 115; Bac. Ab. Trespass, F.;2 Trespass, S. pi. 10. 
 
 Eol. Ab. 555, 1. 15. (g) Bro. Trespass, pi. 55; 1 Saund. 322, n. 
 
 (y) 11 Mod. 74, 130; 1 Stark. 58. Quare, 5; Bao. Ab. Trespass, C. 3. 
 
 if shooting ODcr another's land is a trespass, (A) 2 Campb. 491; 2 M. & Sel. 499. Sc« 
 
 1 Stark. 58. further as to trees, ante, 149, 151. 
 
 (js) 2 Burr. 1114, 11 Mod. 74, 130; 1 Stark. (i) 8 T. R. 145; Com. Dig. Estate. K. 8; 
 
 69;oBtel26. 8 B. &. C. 268. 
 
 (a) 9 B. & C. 126. (k) 8 B. & C. 368; Co. Lit. anU, 79. 
 
 (1) This action lies for every unlawful intrusion, whether the land is inclosed or not, though 
 only the grass is trodden down. Daugherty v. Stepp, 1 Dev. & Bat. 371. 
 
 (2) Ace. Phillips i». Covert, 7 Johns. 1; Suffern v. Townsend, 9 Johns. 35; Tobeyv. Webster, 
 
 3 Johns. 470. 
 
 (3) But not for cutting and carrying away the trunks of trees blown down by a tempest, 
 |:over, it seems, is the proper remedy. Shult v. Barker, 12 Serg. & Rawle, 272. 
 
 Vol. L 27 
 
179 OP THE FORMS OF ACTIONS. 
 
 IT- common of an old wall pull it down in order to rebuild it, and does re-. 
 TRESPASS. |j^j2^ j(.^ ^jjjg jg jjot a destruction for -whicli trespass lies (0- If two be ten- 
 8. Injuries ^nts in common of a folding, and one of them by force prevent the other 
 notTnder ^0"^ erecting hurdles, trespass lies (m). This action does not lie against 
 process, a tenant in common for taking the whole profits (1), yet if he drive out of 
 the land any of the cattle of the other tenant in common, or hinder him 
 from entering or occupying the land, an action of ejectment may be sup- 
 ported (w) ; but not it seems an action of trespass (o)(2). 
 
 Though the entry were lawful, yet by a subsequent abuse of an authority 
 in law to enter, as to distrain, &c. (except for rent or poor's rates (jo), or 
 under the Turnpike Act) (g) , the party may become a trespasser ab ini- 
 tio (r) (3). As if an officer under an execution continue in possession lon- 
 [ '180 ] ger than the law allows, his entry becomes a trespass *ab initio (s). And 
 it seems that a magistrate is a trespasser ab initio, if he commit a person 
 charged with an offence for re-examination for an unreasonable time (t). 
 So in the case of distress damage feasant, a subsequent conversion of the 
 goods renders the original seizure illegal (u) (4). But in these cases the 
 subsequent act must, in order to render the original entry a trespass, be in 
 itself forcible, and an act of such a nature that trespass would lie, if no 
 authority or right existed ; and therefore a sheriff acting upon a j^en /a- 
 cias, is not a trespasser ab initio, merely because he extorts more than 
 he was justified in levying (x). In the case of a distress for rent, if the 
 party remain in possession an unreasonable time more than five days (y); 
 or turn the plaintiff 's family out of possessioa (z) ; he is liable for those 
 acts only. In the case of an authority from the complainant himself to 
 enter, the abuse of such authority (5) will not in general render the party 
 a trespasser ab initio (a)(6). 
 
 (I) 8 B. & C. 257; anU, 79. B. & C. 28. 
 
 (m) Co. Lit, 200 b. (0 10 B. & 0. 488. 
 
 (n) Co, Lit. 199 b; 3 Wils. 119; 12 Mod. («) 3 Wils. 20. 
 
 567. (x) 5 B. & C. 485. 
 
 (0) 8 B. & C. 269. (y) 2 Stra. 717; 1 H«n. Bla. 18 s H East, 
 (p) 1 He^. Bla. 13. 895; 2 Campb. 115; anU, 288. What ia a 
 {q) 3 Geo. 4, 0. 126, s. 144. reasonable time, see 4 B. & Aid. 208, qualify- 
 (r) Bac. Ab. Trespass, B. ; Six Carpenters' ing the decision in 1 Hen. Bla. 15. 
 
 ijase, 8iCo. 146; 2 Bla. Bep. 1218; Com. Dig. (a) 1 East, 189. 
 
 Trespqsa, C. 2; 3 T. R. 292; 5 B. & C. 488. (a) Lane, 90; Bac. AJ). Trespass, B.; 2 T. 
 
 (s) 2 Bla. Rep. 1218; 5 Taunt. 198; see 5 B. 166. 
 
 ( 1) Assumpsit lies by one tenant in common, against his oo-tetiant, who has sold the common 
 property, and received all the money. Gardiner Man. Co. v. Heald, 5 Greenl. 381. 
 
 (2) But see Wilkins v. Burton, 5 Vermont, 76; Booth v. Adams, 11 Vermont, 156; Porter v- 
 Hooper, 1 Shepley, 25; Duncan v. Sylvester, 1 Shepley, 417; M'Gill v. Ash, 7 Barr, 397. 
 
 (3) Vide Adams ». Freeman, 12 Johns. 408. 
 
 (4) Selling an article under process of law, before or after the time prescribed by law, will 
 make the officer a trepasser ab initio. Pierce v. Benjamin, 14 Pick. 350; Purrington v. Loring, 
 7 Mass. 888; Smith v. Gates, 21 Pick. 55. Omitting to give an impounded beast reasonable food 
 and water, will make the field-driver a trespasser ab initio. Adams v. Adams, 18 Pick, 884. 
 See Gibbs ir. Chase, 10 Mass. 125, 129; Nelson d. Merriam, 4 Pick. 249. See Sackrider d. M' Do- 
 nald, 10 Johns. 253; Hopkins «. Hopkins, ib. 369. But a mere non-feasance will not make a 
 party a trepasser ab initio. Hale v. Clark, 19 Wendell, 498; Gardner v. Campbell, 15 Johns. 
 401. . I- . 
 
 A seizure and sale of the whole of a chattel on an execution against a co-tenant of it will make 
 the sheriff a trespasser ab initio, as to the other. Melville v. Brown, 15 Mass. 82; Walker v. 
 Fitts, 24 Pick. 191,194. 
 
 (5j Sed Tide Adams v. Freeman, 12 Johns. 409. As to the distinction between the abuse of 
 an authority in law and in fact, see further, Van Brunts. Sohenok, 13 Johns. 416; Allen w. 
 Crofoot, 3 Cowen, 506; Barnes v. Barnes, 6 Vermont, 888. See Allen v. Crofoot, 5 Wendell, 
 606. 
 
 (6) Wendell ». Jolijison, 8 N. Hamp. 220; Gushing «. Adams, ISPlck, 110, 114. Apersonin^, 
 
IV. TRESPASS. 180 
 
 In the next preceding pages we have considered when this action may ^' 
 be supported against a party for his own immediate act ; in some cases it "*^**''' 
 may be supported against a person for the acts of anothet and of cattle, &c. -^I^ %^ 
 Thus a party may be sued in respect of his previous consent or request trespasses 
 that the trespass may be committed ; as if A. command or request B. to of otheni 
 beat or impress C, or to take his goods, or to commit a trespass on his land^ ""^Jj* ^ 
 and B. do it, this action lies as well against A. as against B. (b); and tres- 
 pass lies against a master where, while the servant drives his master, the 
 horse of the latter runs away and does damage (c). So if A. direct the 
 sheriff to levy particular goods, not the property of the defendant in the 
 action, A. may be sued in trespass Qd). It may also be supported against a 
 person, not being an infant or feme covert, who afterwards assents to a tres- 
 pass committed for his benefit (e) (1), though not so as to render him liable 
 for a forcible entry (/) ; so for taking goods, even to subject the party to 
 liability for the abuse of an authority in law, as a trespasser ah initio (g-) 
 (2). But without such consent, trespass does not in general lie ; as if A. 
 command his servant to do a lawful act, as to distrain the goods of B., and 
 he wrongfully take the goods of 0., A. is not liable (A), the liability of the 
 sheriff being an exception (t) *(3). And the mere 9,cceptanoe of got>ds [ *181 ] 
 illegally taken by another, does not always furnish evidence of an assent 
 . (le) ; as if a pound-keeper receive goods illegally distrained (/). But in 
 these cases, if the party after demand withhold the goods, trover may be sup- 
 ported against him. And, as we have already seen, unlfess there he an 
 actual consent to the trespass, either before or after it was cottimitted ; or 
 Unless the act was the probable i-esult of the orders given, and the sferVant 
 used due care ; even a master is not liable in an action of trespass for the 
 act of his servant; though case may be supported against him in some in- 
 
 (J) Ante, 79; 1 Campb. 187; 2 Bla. Eep. (g) Lane, 90; ante, 80. 
 
 1055; Salk. 409; 4 Inst. 317; Bac. Ab. Trea- (A) 3 Wils. 312, 817; 1 East, 208; aiite, 
 
 pass, G.; Com, Dig. Trespass, C. 1. 81. 
 
 (c) 3Tyr. 220. (i) Ante, SI. 
 
 Id) 2 BoL 533, 1. 5, 10. (fc) 2 Rol. 555. 1. 50. 
 
 (e) Ante, 79, 80; Cowp. 478; 8 Wils. 377. (I) Cowp. 476. 
 
 (/) 4 Inst. 317; Co. Lit. 180 b, n. 4. 
 
 ponnding cattle, taken damage feasant, before the damages have been ascertained by two fence 
 viewers, under the act, sess. 36, o. 35, s. 19; 2 B. L. 134, is a trespasser ab initio. Pratt ». 
 Petrie, 2 Johns. 191; Saokrider o. M'Donald, 10 Johns. 253; Hopkins v. Hopkins, 10 Johns. 
 869. So on a distress for rent, if the goods distrained on are sold without having been appraised 
 and advertised, agreeably to the 21st of March, 1772, the distrainer is a trespasser ab initio. 
 Kerr v. Sharp, 11 Serg. & Sawle, 899. 
 
 (1) Vide Adams r.-Freemani 9 Johns. 117'; Smith v. Shaw, 12 Johns. 257. Ch. J. Spenoer 
 Bays : "To render one man liable for the acts of others, it must appear that th^ acted in con- 
 cert, or that the act of the individual sought to be charged, ordinarily and naturally produced 
 the acts of the others." Guille v. Swan, 19 Johns. 382; Wall v. Osborne, 12 Wend. 39. In 
 the case last cited a party sold a mill standing upon the lot of another, and appointed a day to 
 remove it, promising to aid a purchaser in removing it; but the mill was io fact taken do'wn and 
 removed by the purchaser; held, that the vendor was liable in trespass, although not present, or 
 aiding in the. removal, ii. So where the defendant sold the plaintifif's steam engine, and re- 
 quested the purchaser to take it away ; and he was held liable in trespass. Morgan v. Varrickj 
 8 Wend. 594, So a person who aids an officer in executing process, if the officer is not justified 
 by the process, although 2 R. S. 441,s. 80, enacts that an officer may command asslstanoe. 
 lilder v. Morrison, IQ Wend. 128; Oystead v. Shed, 12 Mass. 512. In a trespass all are princi- 
 pals; and all and each of the trespassers are liable for all the injury done. Whitaker v. Ed^ 
 iish, 1' Bay, 15; Chanet v. Parker, 1 Rep. Con. Ct. 333; Johnson v. Thompson, 1 Baldwin, 
 571; Prince v. Flynn, 2 Litt. 240; Jackson ji. Walsh, 14 Johns. 406; Morgan v. Variok, 8 
 Wendell, 587; Stoughton v. Mott, 15 Vermont, 162; Bell v. Miller, 5 Ohio, 150; Whitney «(i 
 Tumor, 1 Scammon, 254; Palmer v. Crosby, 1 Blaokf. 142; Ridge v. Wilson,' ib. 410. 
 
 (2) Vide Van Brunt v. Schencki 13 Johns. 414. 
 
 (3) Vide Haiard «. Israel, 1 Binn. 240. 
 
lit. For 
 erroneout 
 
 181 OP THE FORMS OP ACTION. 
 
 "• stances, for injuries in respect of whicli the servant is liable in trespass (in) 
 TOsspAss. ^.^^ Tjy-g jjg^^g before seen how far agents or partners, &c. are liable (n), 
 liftWlity ^g ijj^ye already partially considered the liability, of a person for the 
 paraefof o'^^* of /lis cattle (o) (2). In those cases in which the defendant is not li- 
 other»; or able, unless he had notice of the propensity of his cattle, as in the instance 
 of eattle. ^f g, dog biting mankind, sheep, &c.; (3) or an unruly bull doing some in- 
 jury, the remedy is in general by action on the case (/?); and that is the 
 proper form of action for the consequences of bringing an unruly horse &o. 
 into an improper place (g). But if the animal were naturally of the pro-- 
 pensity to do the mischief complained of, as horses and cattle to trespass 
 on land, though the owner had no notice in fact of their propensity, the 
 remedy is trespass (r). 
 
 Trespass may also be supported for an injury committed by animals no- 
 toriously ferocious, and let loose by the owner (s) (4). 
 
 SECONDLY, UNDER COVER OP LEGAL PROCEEDINGS. 
 
 The application of the action of trespass to injuries committed under 
 color of a legal proceeding, may be considered under the seven following 
 heads : — 
 
 Fiist, in general no action whatever can be supported for any act, how- . 
 ever erroneous, if expressly sanctioned by the judgment or direction of 
 proocSi"' one of the superior Courts at Westminster ; or even by an inferior mag- 
 ings where istrate, acting within the scope of his jurisdiction (<) (6). If the court or 
 ^nsdio- i^fej,jQp judge has jurisdiction over the subject matter (6), he is not liable 
 
 (m) Jlnte, 81, 131; 1 East, 106; 2 Rol. 553, (r) Ante, 82; 2 Kol; Ab. 668, N. 1.15; 8 
 
 1, 25; 1 Taunt. 568; 4 B. & Aid. 590. Bla. Com. 211; 1 Ld. Raym. 608, 1583; Bac. 
 
 (») Ante, 84, 86 Ab. Trespass, G. 2. 
 
 (0) ^nte, 82, 168. (s) Ante,82i Ld.Eaym. 1588; 8East,595, 
 (p) Id. ibid; Lutw. 90; Cro. Car. 25; Ld. 596. 
 
 Raym. 608, 1533; 12 Mod. 333; Dyer, 25, pi. (,t) 10 Co. 76 a.; 2 Wils. 384; 3 M. & Sel. 
 
 162. 411, 425, 427, 428; 1 B. & C. 169; ante, 
 
 (j) Ventr.295. 77. 
 
 (1) Trespass -will not lie against a rail road corporation for an injury done to the plaintiff by 
 their locomotive engine, whether such injury be accidental on the part of the servants of the 
 company, where it does not appear that the particular injury was done by command, or with the 
 assent of the defendants. The Philadelphia, Germantown, and Morristown Bail Boad Co. v. 
 Wilt, 4 Wharf. 143. 
 
 (2) By the common law, a party into whose land agisted cattle escape, and there do damage, 
 may maintain trespass against the general owner of the cattle, or against the agister, at his elec- 
 tion; Sheridan V. Bean, 8 Metcalf, 284; Bamum v. Vandusen, 16 Conn. 200; and this law is 
 not altered by the Revised Stats, of Massachusetts, Ch. 113, § 4; Sheridan v. Bean, 8 Melcalf, 
 284. 
 
 (3) Paff II. Slack, 7 Barr, 254. 
 
 (4) The owner of a cow which is accustomed to hook, the vicious propensity being known to 
 the owner, is liable for damage done by ber^ although it be done in the highway, against the 
 land of her owner, and while going to her usual watering place; Coggswell v. Baldwin, 15 Ver- 
 mont, 404. So the owner of a bull is liable to this action, if the bull break from his enclosure 
 and gore a horse of his neighbor so that he die, and the measure of damages is the value of the 
 horse. Dolph v. Ferris, 7 Watts & Serg. 367. 
 
 (5) See 7 Conn. 11, and the cases cited< Vide Hecker v. Jarret, 8 Binn^ 404; Henderson v. 
 Brown, 1 Caines, 92. 
 
 Where a justice acts without acquiring jurisdiction, he is a trespasser; but having jurisdic- 
 tion, an error in judgment does not subject him to an action. Horton ti. Auohmoody, 7 Wend. 
 200; Brown v. Crowl, 5 lb. 298. In order to render the officer liable, it should appear from 
 the process, that the authority issuing it had no jurisdiction. Churchill v. Churchill, 12 Ver- 
 mont, 661. 
 
 (6) Shoemaker v. Nesbit, 2 Bawle, 201 ; Cooper v. Adams, 2 Blackf. 294. 
 
tV. TRBSt'ASS. "ISa J 
 
 as a Wespasser, however erroneous the conclusion at which he arrives iv- 
 may be (u). And we have before seen that commissioners *of bankruptcy ^^^pass. 
 are not liable in trespass for committing a person who does not answer to 
 their satisfaction, when examined before them touching the bankrupt's es- 
 tate (x). It seems that no action will lie against a judge for what he does 
 judicially, though it were done maliciously (y) (1); at least he would not 
 be liable in trespass in such case. And where the lord chancellor sitting 
 in bankruptcy committed the solicitor to the commission for not obeying 
 an order, it was held that he had jurisdiction to do so, and that no action 
 was sustainable against him for so doing (ar). But when an inferior Court 
 is guilty of an excess of jurisdiction, trespass may be supported for any 
 thing done under such proceeding (a) (2). And in the case of an error by 
 ministerial officer, this action maybe supported, if the injury complained 
 of was committed with force and immediate (b). We have already con- 
 sidered how far a judicial officer or other public agent will be liable, on 
 the ground of having exceeded his jurisdiction or authority, or acted with 
 negligence in the exercise of his duty (c). 
 
 Secondly. When the Court has no jurisdiction over the subject-matter, 2dly. 
 trespass is the proper form of action against all the parties (3) for any ^^^^, "o 
 act, which, independently of the process, would be remediable by this {"o^**"" 
 action or by trover, if goods have been taken (d). Trespass lies if com- 
 missioners of excise adjudge low wines to be strong waters, 8fc. (e) ; or 
 leather searchers improperly seize leather (/). It has been considered, 
 that when civil proceedings in an inferior Court, having no jurisdiction 
 over the debt, are adopted by a party with an express malicious intent, 
 though there be a demand recoverable elsewhere, an action on the case 
 may be supported (g"). So. where the party maliciously and unduly Issues 
 
 («) See ante, 78; 6 Bing. 85. ing where there is a total want of jurisdiction, 
 
 (i) 1 B. & C. 163; anU, 78. 3 M< & Sel. 426. 427, 428. 
 
 (y) 7 St. Tr. 442; 6 Howell, 1094 ; 3 M. & (6) 1 Ld. Raym; 471; 1 Salk. 395; 2 T. R. 
 
 Sel. 425; 2 Hawk. c. 13, b. 20; see cases cited 225. The steward of a court baron is a jadi- 
 
 jn Dicas v. Lord Brougham, 1 Mood. & Rob. cial and not a merd ministerial officer, 2 B. & 
 
 309; 6 Oar. & P. 259, S. C. In such cases the Aid. 473. 
 
 magistrate might be punished by criminal in- (c) Ante, 78, 85. 
 
 formation, or indictment, see ti/. and Burn, J., (d) 10 Co. 76 aj 2 Wils. 886; 7 B. & C. 
 
 26th ed. tit. " Justices." 536. 
 
 (■«) Dicas V. Lord Brougham, 1 Mood. & (c) Hardr. 483; 2 Wils. 384. 
 
 Rob. 309; 6 Car. & P. 249, S. C, (/) 6 T. R. 443. 
 
 (a) See ante, 78, 1 B. & C. 169. Note the (g) 2 Wils. 302; 2 Chit. Rep. 394. Sed 
 
 distinction between error in the process or oth- vide 2 T. R. 226. It would seem trespass is at 
 
 er proceedings, where there is jurisdiction over least the safer remedy in such case, 
 the subject matter, and an irregular proceed- 
 
 (1) Beaurain v. The Hon. Sir W. Scott, 3 Campb. 388, was an action on the case, brought 
 against a judge of the Ecclesiastical Court, who excommunicated a party for refusing to obey an 
 order which the court had not authority to make. 
 
 (2) Blood V. Sayre, 17 Vermont, 609. So the trespass lies against a justice of the peace, who 
 issues a warrant on a conviction for a forcible entry, by which the party is turned out of posses- 
 sion, after the service of a certiorari. Case v. Shepard, 2 Johns. Cas. 27. The want of jurisdic- 
 tion in a court rendering a judgment renders the judgment coram non judice and void, and the 
 magistrate and all others concerned in enforcing the judgment would be trespassers. Putnam 
 V. Man. 3 Wend. 202; Bigelow ». Stearnes, 19 Johns. 39; 15 ib. 121; Elliott v. Pearsall, 1 Pet. 
 U. S. 138; 1 Wend. 126; Brady v. Carrington, 1 Car. Law Repos. 369; Gardner v. Neil, 1 Car. 
 Law Repos. 492; Beatty v. Perkins, 6 Wendj 382; M'Cool v. M'Cluny, Harper, 486; Vail v. 
 Lewis, 4 Johns. 450. 
 
 (3) R«mbert v. Kelley, Harper, 65; Kennedy v. Terrill, Hardwj 490. Taylor v. Moffatt, 2 
 Blaokf. 306; Flack v. Akeny, Breese, 145; Hull v. Blaisdell, 1 Scammon, 384; Allen v. Gray, 
 11 Conn. 95; Gramond ». Raymond, 1 Conn. 40; Horton ». Auohmoody, 7 Wendell, 200; 
 Allen V. Greenlee, 2 Devereux, 870; Stephens v. Wilkins, 6 Barr, 260. 
 
182* Op the forms op actions. 
 
 IV. a second ./Zen /ffldfls, case may perhaps be brought (A)(1) ; and if a 
 TRESPASS, party maliciously procure a magistrate to grant an illegal warrant, it 
 under col-' s^^™^ ^® ^^ liable in case for the malice (i)- Trespass is also the proper 
 or of pro- remedy, where an inferior Court has jurisdiction over the subject-matterj 
 cess, &o. but is bound to adopt certain forms in its proceedings, from which it de- 
 [ *183 ] viates, and whereby the *proceedings are rendered coram nonjudice(Jc)(2')i, 
 But it does not lie for arresting a person privileged either personally or 
 locally, but case is the only remedy (0(3)- 
 
 Justices of the peace are liable in trespass in either of the following 
 cases ; — First, If, on their convicting or making an order on a party upon 
 a statute, the conviction or order on the face of it does not show that any 
 offence has been committed, and in fact discloses that they acted without 
 jurisdiction (m). Secondly, If the conviction or order show an excess 
 of jurisdiction by them («). And in these cases trespass lies against the 
 magistrate for any distress or imprisonment upon the conviction or order^ 
 although the conviction or order has not been quashed, and there is no 
 imputation of malice. Thirdly, A justice of the peace is a trespasser, if 
 the warrant of commitment do not show an offence over which he has 
 jurisdiction, although there may have been a previous regular conviction 
 which is still in force (o). Fourthly, He is liable if the warrant of conV' 
 mitment substantially vary from the conviction, so that the offence stated 
 
 (ft) Hob. 205, 206; see 1 B. & Ci 145. (m) Cowp. 140; 7 B. & C, 536; 2 Chit. 
 
 (s) 2 Chit. Eep. 304. Eep. 304; 1 M. & Y. 469. 
 
 (/e) Sir Wi Jones, 171; 1 East, 64; Bep. (n) 5 M. & Sel. 314. 
 
 temp. Hardw: 71; Hob. 63; 2 Bulstr. 64i (o) 2 Bing. 583., altered in 7 & 8 G. 4, oi 
 
 {I) 10 Co; 76 b; 6 Id'. 62 a; 2 Bla. Rep. 29, 80; and 9 G. 4, c. 81i 
 1190; Dough 671; 3 Wils. 378. 
 
 (1) A ministerial officer is protected in the execution of process, although the court have not 
 in fact jurisdiction in the case, if it appears on the face of the process that the court has juris- 
 diction of the subject-matter; and nothing appearing to apprize the officer but that the court 
 has jurisdiction of the person of the party to be affected by the process. Savacool v. Boughton; 
 5 Wend. 170. The same principle which protects an officer who executes process of a court of 
 general jurisdiction should protect him when he executes process of a court ot limited jurisdic- 
 tion, ib. That where an inferior court has not jurisdiction of the subject-matter, or having it 
 has not jurisdiction of the person of the defendants, all its proceedings are absolutel}' void ; 
 neither the members of the court, nor the plaintiff, if assenting, can be protected by them, ib. 
 Vide Wise v. Withers, 3 Cranch, 381. Smith v. Shaw, 12 Johns. 257i In the latter case, the 
 difference between a defect of jurisdiction as to the subject-matter, and as to the person or pljcej 
 is considered by the court; in the former instance, the officer being a trespasser, but not in the 
 latter, unless the defect of jurisdiction appear on the process. See also Shoemaker v. Nesbit, 2 
 Eawle, 201; Churchill v. Churchill, 12 Vermont, 661; Donahoe v. Shed, 8 Metcalf, 326; Wil- 
 marth v. Burt, 7 Metcalf, 257; Merriam i;. Bryant, 14 Conn. 200; Barnes v. Barber, 1 Gil- 
 man, 401; Parker v. Smith, 1 Gilman, 411; Hart v. Dubois, 20 Wendell, 236. 
 
 An officer is protected tti executing process regular on its face , though he may know facts 
 making it void for w,ant of jurisdiction. People v. Warren, 5 Hill, 440; Wilmarth v. Burt, 7 
 Metcalf, 257. But if he actually knows that the process he is executing has been superseded, 
 he will be liable. Morrison v. Wright, 7 Porter, 67. 
 
 (2) So for maliciously suing out a capias against a freeholder for debt. Farmers' Bank v> 
 McKinney, 7 Watts, 215. 
 
 (3) Chase v. Fish, 4 Shepley, 132; Carle v. Delesdemier, 1 Shepley, 363. But trespass 
 has been held to lie against a justice of the peace, who voluntarily, and without the request or 
 authority of the plaintiff', issued an execution against the body of a person, whom he knew to 
 be privileged from imprisonment. Percival v. Jones, 2 Johns. Cas, 49. But see Hess v. 
 Morgan, 3 Johns. Cas. 85. So, trespass lies against a party at whose instance a void warrant 
 is issued out of a justices court against a person privileged from arrest. Curry v. Pringle, 11 
 Johns. 444. A. regular process from a Court, having jurisdiction of the subject-matter will pro- 
 tect a ministerial officer of the court, but it is otherwise in respect to a party who wantonly 
 takes out an execution upon a satisfied judgment, and sells the property of the defendant. 
 M'Guinty v. Herriok, 6 Wend. 240. Brown v. Feeter, 7 Wend. 801. In the case last cited, it 
 was held that an action on the case lies against a party who wrongfully and wilfully sues execu- 
 tion on a judgment whieh he knows is satisfied; and that it vras not necessary to allege or prove 
 actual malicCk 
 
• IV. TEESPAS9. 183 
 
 in the former and that described in the latter, are in law wholly different iv. 
 in their nature, for in such case the commitment has no conviction to support ™espass, 
 it (p'). And Fifthly, Trespass, and not case, is the proper remedy against uJerToU 
 a justice of the peace who maliciously grants a warrant against another, or of pro- 
 and causes him to be arrested thereunder, vnlhout any information, upon oesa, &o, 
 any supposed charge of felony (g) ; or who, Sixthly, commits a party 
 charged with felony for re-examination for an unreasonable time, but with, 
 out any improper motive ; and it seems that a warrant of commitment for 
 an unreasonable time is wholly void (jr). 
 
 Magistrates are not liable. First, If, having jurisdiction over the subr 
 ject-matter, they produce a conviction drawn up in due form and remain- 
 ing in force. In such case the conviction is a protection in any action 
 against them for the act so done, and the facts therein stated cannot be con- 
 troverted in such action ; (there being a regular commitment or warrant) (s) 
 (1). Secondly, They are not liable in trespass upon such a conviction being 
 quashed; the statute (f) expressly providing in such case(»/) that the plain- 
 tiff shall not recover more than 2d., without costs of suit,) besides the sum 
 levied, if any, unless it be alleged in the declaration, " and which shall be 
 in case only," that the justice acted maliciously and without reasonable and 
 probable *cause. In such an action upon the case, it is not sufficient for the r *184 1 
 plaintiff to prove his innocence, and to call on the magistrate to show prob- 
 able cause for the conviction ; but the plaintiff must give such evidence of 
 what passed on the hearing, by calling the witnesses for the prosecution, or 
 otherwise, that it may appear there was no probable cause for the convic- 
 tion (x). Thirdly, J \xs\.iGBs are not liable for a mere error in judgment or 
 mistake in the particular case, where they have jurisdiction over the subject- 
 matter. The defendant, as a magistrate, committed to prison, as a felon, 
 the plaintiff against whom a charge had been made of maliciously cutting 
 down a tree on premises in his occupation, the property of A. B.; and it 
 was held that the defendant wfis not liable to an action («/). Fourthly, We 
 have before observed (z), that magistrates are not liable as trespassers 
 for what they do upon a charge or complaint in a matter over which they 
 might have jurisdiction, unless all the facts are shown to have been laid 
 before them, and it appear that full opportunity was afforded them of 
 forming a correct judgment, &c. 
 
 The acts of a justice who has not duly qualified are not absolutely void ; 
 and therefore persons seizing goods under a warrant of distress, signed by 
 a justice, who has not taken the oaths at the general sessions, nor deliver- 
 ed in the certificate required, are not trespassers (a)(2). 
 
 Thirdly. When a Court has jurisdiction, but the proceeding is irregu- 3dly. ir. 
 lar (2), trespass against the attorney and plaintiff is in general the pro- p'f^^ 
 per form of action (6) ; and where a judgment has been set aside for ir- ingg. 
 
 (p) 3 B. & C. 409. A slight discrepancy ia (a) 5 Taunt. 580. 
 
 not material, 12 East, 67. (j) 6 Bing. 85. 
 
 (g) 2 T. B. 325. (z) Ante, 78. 
 
 Ir) 10 B. & C. 28. (a) 3 B. & Aid. 266. 
 
 (s) 16 East, 13; 3 B. & C. 649; 7 B. & C. (4) 3 Wils, 341, 368, 376; 2 Bl». Rep. 845, 
 
 394, see 12 East, 67. Attorney and client liable for act of agents, 
 
 (i) 43 G. 3, c. 141, s. 1. ante, 81. 
 
 (li) See 12 East, 67; 16 id. 13. 
 
 (1) See Miller v. Grice, 1 Richardson, 147. 
 
 (2) Keyaer v. The Comm. of Tranklin, 2 Rawle, 139; Cornish v. Toung, 1 Ashm. 153. 
 
 (3) Green v. Morse, & Greenl 291; Pou* »• Slooum, 3 Blaokf. 421; Barkelos v. Rapdall, 4 
 Plaekf, 479, 
 
184 or THE POBMS OP ACTIONa 
 
 IV. regularity (l),this is the appropriate remedy for any act done under it 
 TKBSPA8S. ^^ry jjj ^j^g ^.^gg ^f MoTgaH aud Huffhes (rf), it was decided, that an 
 2. Injuries action on the case could not be sustained against a Magistrate, for issuing 
 arol^mo'- ^^ irregular and void warrant, though maliciously, and that the action 
 cess, &c. should have been trespass (e) ; for in general no action can be supported 
 against a magistrate I'or any tiling done by him in that capacity, on the 
 ground of malice (/) ; and if there be an irregularity, that must be 
 treated as such in an action of trespass (2). But with regard to a party 
 issuing, or causing to be issued, irregular process, &c. it seems that the 
 person prejudiced is at liberty to support an action on the case against 
 him where there was no cause of action, and the proceeding was malicious 
 as well as irregular (g-). The liability of a magistrate, if a conviction be 
 void, or be quashed, has been already observed upon (A). 
 [ *185 ] *Fouri/i/i/, When the process has been misapplied, as when A. or his 
 4. Where property has been taken upon process against B., trespass is in general 
 process the only remedy (i) (3). And trespass is the proper form of action, if 
 misapp u tjjgj,Q (jg jj^ misnomer in the process which has not been waived, though it 
 be executed on the person (4) or goods of the party against whom it was 
 in fact intended to be issused (A:)(5) ; and in these cases the sheriff and 
 his officers are liable, as well as the parties who expressly directed the 
 process to be thus irregularly executed (Z)(6). 
 6. When Fiflhly. When the process of a superior or inferior Court has bean 
 ^abuMd '° o-bused (ni), trespass against the sheriff and his officer, or other minister- 
 ial officer (w), committing the abuse, is the proper action ; if the conduct 
 of the officer was in the first instance illegal, and an immediate injury to 
 the body, or to personal or real property; as if the officer arrest out of 
 the sheriff's bailiwick (o), or after the return day of the writ 0»)(7) ; 
 
 (c) 1 Stra. 506. (k) 6 T, R. 234 ; 8 East, 328. When the 
 
 V (d) 2 T. 11. 226. party arrested is liable, see 2 Chit. Rep. 357; 
 
 (c) Se3 also 2 Stra. 610; 3 M. & Sel. 425, 1 B. & Aid. 647; see Tidd, 9th edit. 447; 7 
 
 627; 7 State Trials, 442; 6 Howell, 1094. B. & C. 486. 
 
 (/ ) 1 T. B. 545; 1 Wills, 232. (/) Ante, 80, 81, 83. 
 
 {g) Ante, 13.?. (m) 2 T. R. 148. 
 
 (ft) Anle, 183. (ij) 2 B. & Aid. 478. 
 
 (0 2 Wils. 309; 2 Bla. Eep. 833; 1 Bulst. (o) Sir T. Jones, 214; 2 Bla. Rep. 834. 
 
 149; Moore, 467; Hardr. 322; see 7 B. & C. \p) 2 Esp. Kep. 585. 
 
 486. 
 
 (1) Milliken v. Brown, 10 Serg. & Rawle, 188. But if the process te erroneous or voidable 
 only, trespass will not lie. Reynolds ii, Corp, 3 Caines, 267. But seen Chapman t>. Dyett, 11 
 Wendell, 31. 
 
 (2) Reynolds v. Orvis, 7 Cow. 269. 
 
 (3) Eoss V. Stewart, 2 Shepley, 312; Baldwin v. Whittier, 4 Shepley, 33; Sibley v. Brown, 3 
 Shepley, 186; Lothrop v. Arnold, 12 Shepley, 136. And trespass lies even if the process by 
 virtue of which the arrest was made was intended to be against the person actually arrested, 
 Melvin v. Fisher, 8 N. Hamp. 506 Trespass lies for breaking into a. dwelling house to servo 
 civil process. Ilsjey v. Nichols, 12 Pick. 270; Oystcd v. Shed, 13 Mass. 520. 
 
 (4) Griswold v. Sedgwick, 6 Cow. 456; Mead v. Haws, 7 Cow. 332. So the gaoler receiving 
 and detaining a person arrested by mistake, instead of another, is liable in trespass. 4aron v. 
 Alexander, 8 Campb. 85. 
 
 (5) Aoo. Wilks D. Lorck,2 Taunt. 399; Scandbver ». Warne, 2 Campb. 270. But if the 
 party himself occasioned the mistake, he cannot maintain the action. Price v. Harwood, 3 
 Campb. 108. 
 
 (6) See Collins v. Waggoner, Breese, 143. Where the officer is not justified by the process, 
 one assisting him by his command is liable as a trespasser. Elder u. Morrison, 10 Wendell, 
 128; Hooker v. Smith, 19 Vermont, 151. But it seems not where the officer merely subse- 
 quently abuses his authority. Oystead v. Shed, 12 Mass. 506, 511. 
 
 (7) Aco. Stoyel o. Lawrence, 3 Day, 1 ; Vail v. Lewis and Livingston, 4 Johns. 450; Adams v. 
 Freeman, 9 Johns. 117; Barkeloo v. Randall, 4 Blackf. 476. But the plaintiff or his attorney 
 
IV. TRESPASa. 185 
 
 TBEBPASS. 
 
 or if he break opea an outer door, &c. (g)(1), or seize under a fieri fa- iv. 
 cias fixtures of the defendaat, who was a freeholder (r). And although ^"™'* 
 the conduct of the officer were in the first instance lawful, yet, if he 2- injuries 
 abuse his authority and commit some act of trespass not warranted by the "f process! 
 process ; as if he detain a party on a capias ad satisfaciendum, after he &e. 
 tenders the debts and costs (s) he becomes a tresspasser a6 initio (0(2). 
 If the abuse be merely a nonfeasance, or any act not in itself a forcible 
 trespass, case for such abuse or wrongful act, and not trespass, is in gen- 
 eral the proper remedy (m)(3). And in general, when the act com- 
 plained of consists of a mere nonfeasance ; as if the sheriff, or a magis- 
 trate, &c. improperly refused bail, or to act, when they should do so ; an 
 action upon the case, and not an action of trespass, is the form to be adopt- 
 ed (a;) (4). 
 
 Sixthly, When a ministerial officer proceeds without warrant, on the 6thly. 
 information of another, trespass, and not case, is the proper form of action MinUterU 
 against the informer, if it turn out that no offence for which an arrest with- and pwty 
 out warrant is justifiable had been committed by any person (jj') ; and tres- oecusing. 
 pass is the remedy against the informer, if there *were no warrant, although [ *186 ] 
 it appear that some person had committed the offence, and it be one for 
 which an arrest might legally be made without a warrant, provided there 
 was not reasonable or probable cause for charging the plaintiff with having 
 committed the offence. When an officer proceeds without warrant, and 
 without foundation, upon his own apprehension, trespass is the proper form 
 of action against him (jz). 
 
 Seventhly, But no person who acts upon a regular writ or warrant caa 
 be liable to this action ; however malicious his conduct ; but case for the 7thly. If 
 malicious motive and want of probable cause for the proceeding, is the P'ooee^- 
 only sustainable form of action (a)(5). JoHo"""" 
 
 form. 
 
 (?) Cowp, 1; 3 B. & P. 223. As to when (j) 6 T. R. 316; 2 Bing. 523; 1 Campb. 
 party justified In breaking open doors, &o. 187. Tlie officer is not liable if he act on in- 
 see 2 Moore, 307; 8 Taunt. 250; 2 B. & Aid. formation of a felony, although no offence had 
 592. been committed, 3 Taunt. 14; 5 Bing. 526; 1 
 
 (r) 5 B. & Aid. 625. Chit. Crim. Law, 21, 22. 
 
 (s) Per Dennison, J., 1 Wils. 154. («) 1 Salk. 396; 1 Ld. Rayn». 454; 2 Stra. 
 
 (t) Bac.Ab. Trespass, B.; 2 Bla. Rep. 1218; 820; 8 Taunt. 14; 1 Chit. Crim. Law, 21, 
 ante, 179. 22. 
 
 (7t) AnU, 179; 5 B. & C. 485. (a) Ante, 133; 3 T. R. 185; Boot v. Cooper, 
 
 (x) Ante, 127, 134, 179; 3 B. & P. 551; 1 1 T. R. 535, reported also in 3 Esp. Rep. 135; 
 Leon. 323 ; 3 Wils. 842, 343 ; 3 M. & Sel. 3 B. & P. 225; 6 T. R. 815; Hal. P. C, 151. 
 
 421. 
 
 will not be liable unless the arrest were^ made by their direction, and an action on Vag case will 
 not lie against them for not countermanding the execution after return day. Vail v. Lewis, 
 Adams v. Freeman, ubi supra; HoUister v. Johnson, 4 Wend. 639. 
 
 (1) See Douglass v. The State, 6 Terger, 525; Steadman v. Crane, 11 Metoalf, 295. 
 
 Those who aid the sheriff in making an arrest by breaking an outer-door of the defendant's 
 dwelling house, are trespassers, though they act by command of the sheriff. Hooker v. Smith, 
 19 Vermont, 151. 
 
 (2) Melville «. Brown, 15 Mass. 82. 
 
 (3) See Humphrey v. Case, 8 Conn. 102. 
 
 (4) Vide Home v. Constant, 4 Johns. 32. 
 
 (5) Plummer v, Dennett, 6 Greenl. 421, and the American cases there cited. Luddington v. 
 Peck, 2 Conn. 700. Beaty v. Perkins, 6 Wend. 382. Bell v. Clapp, 10 Johns, 263. Hayden v. 
 Shed, 1 1 Mass. 500 ; O wens v. Starr, 2 Litt. 234 ; Turner v. Walker, 3 Gill & Johns. 377 ; M'Hugh 
 V. Pundt, 1 Bailey, 441; Watson v. Watson, 9 Conn. 141; Kennedy v. Terrill, Harden, 490; 
 Morris v. Scott, 21 Wend. 281. Portuer v. Tamagan, 3 Porter, 257; Wilcox v. Smith, 5 Wend- 
 ell. 231; Savacool v. Boughten, 5 Wendell, 170; Noble v. Holmes, 5 Hill, 194; Horton v. Hen- 
 dershot, 1 Hill, 118; Jermaine v. Waggoner, 1 Hill, 279; Parker v. Walros, 16 Wendell, 514: 
 Miller ». Grioe, 1 Richardson, 147; Hart. v. Dubois, 20 Wendell, 23Q. 
 
 Vol. I. 28 
 
186 
 
 OP THE FORMS OP ACTIONS. 
 
 V. 
 
 TftEB^ASS. 
 
 Pleading, 
 
 The declaration in this action contains a concise statement of the injury 
 (Jomplained of, whether to the person, or to personal or real property, and 
 should allege that such injury was committed vi et armis and contra pacem. 
 The pleading rules of Hilary T. 4 W. 4, ordered, that in actions of tres- 
 pass quare clausum fregit, the close or place in which, &c. must be de- 
 signated in the declaration by name or abuttals, or other description, in 
 failure whereof the defendant may demur specially. The same rules also 
 affect the pleas and other pleadings. The stat. 3 & 4 W. 4, c. 42, s. 21, 
 enables a defendant, in some cases of trespass for injuries to personal or 
 real property, to pay money into Court, after obtaining leave from the 
 Court or a judge for the purpose. The general issue is not guilty of the 
 trespasses as alleged by the plaintiff; and under it few matters of defence 
 can be given in evidence, and consequently the pleadings in this action re- 
 quire much attention. In an action of trespass for assault and battery to 
 the person, and iu trespass to real property, if the damages recovered by 
 verdict be under 40s. the plaintiff will in general recover no more costs 
 than damages (fe) ; but where there has been a false imprisonment, or an 
 injury to, or asportation of, a personal chattel, it is otherwise. The 
 
 verdict and judgment 
 costs (1). 
 
 are for the damages assessed by the jury, and 
 
 [*187] 
 
 *V. EJECTMENT (6). 
 
 V. This action lies for the recovery of the possession of real property, in 
 
 EiTBoraoaiT. yf\iQ\i the lessor of the plaintiff has the legal interest and a possessory 
 right not barred by the statute of limitations (c). It is not a real action, 
 nor a mere personal action ; but is what is termed a mixed action, partly 
 for the recovery of the thing or property itself, and partly to recover dam- 
 ages. It is true that in general the damages recovered in an action of 
 ejectment are merely nominal, but in some cases between landlocd and 
 tenant such damages are in effect the full amount of the mense profits up 
 to the time of trial {d). It is now brought in the name of a nominal 
 plaintiff, whose supposed right to the possession is founded on a supposed 
 demise made to him by the party or parties really entitled to the possession 
 of the property, or sometimes several demises. This remedy is attended 
 with the peculiar advantage, that by introducing several counts on the 
 demises of different persons, all risk of defeat, on account of any doubt in 
 whom the legal right is vested, may in general be avoided. The action 
 cannot be commenced until the real plaintiff's right of entry has accrued. 
 If that take place in term, the declaration, which is the first proceeding in 
 
 (6) Tidd, 9th edit, 963, Tliere are some 
 exceptions, vide id. 963 to 968. 
 
 (i)A8 to the history of this action, see 3 
 Bla, Com. 199; the nature of it, 3 Wils. 120; 2 
 Burr. 667, 668; Selwyn's Ni. Pri. Ejectment; 
 Eun, ejectment; Tidd; eh. 45, 1189, 9th edit; 
 and the excellent work of Mr. Sergeant Adams, 
 
 2d edit. See the act 1 Geo. 4, c, 87, for fkoili- 
 tating proceedings, &o. by landlord against 
 tenant holding over; and 11 G. 4, and 1 W. 4, . 
 c. 70. 
 
 (c) 7 T. R. 47; 2 Burr, 668; 8 T, R. 2. 
 
 [d) Under stat. 1 G. 4. C. 87, Chitty's Sum, 
 Prao. 227 ; 8 Bing. 656. 
 
 (1) See tlie efiect of the recovery of ajudgment in ire^pnat and trover for carrying away th« 
 plamtiff '8 goods. Floyd *. Browne, 1 Bawle, I2l ; White v. Philbriok, 5 Greenl. 147, 
 
V. BiEOTMBij'r. 187 
 
 the suit, may be delivered iu and entitled of such term ; or if the right of ^• 
 eatry accrue in vacation, the declaration may be delivered any time before ^^'^'^^'^^ 
 the next essoign day, entitled of the preceding term. In either case a 
 notice accompanies the declaration, requiring the party in possession to 
 appear in the term subsequent to that of which the declaration is entitled 
 (e). _ But in ejectment by a landlord against his tenant, or other person 
 claiming under such tenant, the practice has been very la,tely altered with 
 respect to the issuable terms ; in order to give landlords, whose right of 
 entry accrues in or shortly after eithei* of those terms, an opportunity of 
 bringing action of ejectment and ha^^ng them tried at the ensuing assizes. 
 The statute (/) provides, that where in such actions the tenancy expire? 
 or right of entry accrues in or after Hilary or Trinity Term, the lessor of 
 the plaintiff may, at any time within ten days after such tenancy shall 
 expire or right of entry accrue, serve a declaration in ejectment, entitled 
 of the day next after the day of demise in such declaration, * whether the [ *188 ] 
 same shall be in term or vacation, with a notice to appear and plead within 
 ten days ; and proceedings may be had, and rules to plead given, in the 
 same manner as if the declaration had been served before the preceding 
 term ; but no judgment can be signed against the casual ejector until dc:- 
 fault of appearance and plea within such ten days ; and it is requisite to 
 give six clear days' notice of trial before the commission day of the 
 assizes at which the action is to be tried. That statute also provides that 
 a judge of either of the Courts at Westminster may, upon summons, give 
 time to plead, or stay or set aside the proceedings, or postpone the trial 
 until the next assizes, &a. 
 
 Mere nominal damages and costs are recoverable in this action ; and in 
 order to complete the remedy for damages, when the possession has been 
 long detained, an action of trespass for the mense profits must in general 
 be brought, after the recovery in ejectment (g-) (1). This action of ejecif 
 ment may be considered with reference, _/?r5^, to the nature of the property 
 or thing to be recovered ; secondly, the right %o s\ioh property ; and, 
 thirdly, to the nature of the ouster or injury, 
 
 • 
 
 This action is, in general, only sustainable for the recovery of the pos* I" general, 
 session of real property (A), as for land, or building annexed to the land, ^^at^^p. 
 upon which an entry might in point oS fact be made, and of which the ertyitlies. 
 sheriff could deliver actual possession (2). Therefore it is not in general 
 sustainable for the recovery of property which in legal consideration is not 
 tcmgible (3) ; as for an advowson, rent, common in gross or other incor- 
 poreal hereditament ; or a water-course, where the land over which the 
 water runs is- not the property of the claimant, &c. (i). Nor is it sustain- 
 able for a movable chattel, such as a stall Q). 
 
 (e) And in certain cases between landlord description, see Bun. Eject. 1^1 to 186; Sel- 
 
 and tenant to put in bail, if ordered by courtj wyn's Ni Pri. Eject. ; Adams on Eject. J8, 4o., 
 
 &c. 1 Geo. 4, c. 87, ,s. 1. and Tidd, 9th Edit. 1190. 
 
 (/) 1 W. 4, c. 70, s. 36. (i) 8 Bla. Com. 206; Telr. 1^3; Riin. Ejep*. 
 
 (g) As to the action for nesne profits, see 131 to 136; Adams, 18, 20. 
 post, 192. U) 1 Car. & P. 123. / 
 
 {h) For what an ejectment lies, and the 
 
 (1) Vide Cummins t)..Noyes, 10 Mass. 635. Osbourn v. Osbourn, 11 Serg. ^f Rawle, 55. 
 
 (2) Black V. Hepburn, 2 Yeates, 331. Vide Jaqkson v. Buel, 9 Johns. 298; Nichols v. {lewis, 
 15 Conn. 187. 
 
 ' (3) See Judd v. Leonard, 1 D. Chip. 204; Blaqk d. Hepburn, ,3 J^a/ix», ,331; D^np. Craig,,3 
 Green, 191. 
 
188 OF THE FORMS OF ACTIONS. 
 
 '• But ejectmeht lies for common appendant or appurtenant, if "demahded 
 
 EJECTMENT. ^^ ^^^^^ ^-^.j^ ^j^g -^^^^ iu respcct of which it is claimed, for the sheriff, by 
 In general, giving possession of the land, gives possession of the common {k) Quare 
 impedit is the proper remedy for the recovery of a church or rectory 
 where the church is full ; but ejectment lies for a church or rectory when 
 demanded as such, if the lessor has been presented, instituted, and induct- 
 ed ; and for this purpose the church is void if the adversary was simoni- 
 acally presented (^). Ejectment also lies for ^Mes, by the statute of 32 
 Hen. 8, c. 7, s. 7 (jm). This action is also maintainable for a coal mine 
 [ "189 ] (w) ; for a fishery (o) ; for the *pHma tonsura of land (cf) ; for hay, 
 grass, and after-math (r) ; and for the pasture of sheep (s). It is neces-' 
 sary to describe with some degree of certainty the nature of the property 
 in the pleadings, and the Word " tenement," except by way of reference 
 to an antecedent specification of particular descriptions, is too general 
 (f) ; and if a water-course (1), where the grounds also belongs to the 
 plaintiff, is sought to be recovered, it must be described as so many acres 
 of land covered with water (u). 
 Mly. The With respect to the title, a party having a right of entry, whether his 
 title there- ^j^jg ]jg jjj fee-simple, fee-tail, or in copy-hold, or for life, or years, may 
 support an action of ejectment ; but the right of possession must be of 
 some duration, and exclusive ; and therefore an ejectment cannot be sup" 
 ported for a standing place, or where a party has merely a license to use 
 land, &c. {x). 
 
 The general rule governing this action is that the lessor of the plaintiff 
 must recover upon the strength of his own title, and of course he cannot in 
 general found his claim upon the insufficiency of the defendant's («/) (2), for 
 possession gives the defendant a right against every person who cannot show 
 a sufficient and better title, and the party who would change the possession 
 must therefore first establish a legal title (z). But it seems that ^nor 
 possession even for a short period, is a sufficient prima facie title against 
 a mere wrong-doer or intruder (a). And therefore if a stranger who has no 
 color of title should evict a person who has been in quiet possession even 
 short of twenty years, without a strict legal title, the person evicted may 
 maintain ejectment against the intruder (&). A lessee whose tenancy is de- 
 
 (fr) 1 Stra. 54; K«p. ;teinp. Hardw. 127; for a "messuage an4 tenement," was no 
 
 Bnl. N. P. 99. , ground of error. See in general Adams, 2d 
 
 (i) 8 B. & C. 25. edit. 26. 
 
 \ (m) 3 Bla. Com. 206; Bui. N. P. 99; 2 {«) Yelv. 143; Co. Lit. 4 b. 
 
 Saund. 304, n. 12. (x) Anti, 202; 2 East, 190; 11 East, 345. 
 
 (ri) Cro. Jao. 160. (j,) 6 T.R.107,n.b.; 11 East, 488; Adams, 
 
 (o)lT. R. 361. 32. , . I 
 
 (v) Burr. 133, 145. (z) 4 Burr. 2487i 1 East,-246; Run. Eject. 
 
 (r) Hardr. 330. 16; 2 T. R. 684; 7 Id. 47. 
 
 (s) 2 Call. 95. (a) 7 King. 346; Doe v. Dyball, 1 Mood. 
 
 (t) 1 East, 441 ; 2 Stra. 834. Where, how- & M. 346 ; see fully 1 Chitty's Gen. Prao. 141, 
 
 ever, ejectment was brought for twenty messu- 273. 
 
 ages, twenty /encmenis, &o., the Court of C. (6) Id. ibid; M. & M. 246; but 2 T. K. 
 
 P. after verdict and writ of error, allowed the 749, seems contra; see 1 East, 246; but 2 
 
 record to be amended by striking out "t-trenty East, 469; 13 Ves. 119; Adains on Eject. 82. 
 
 t™«™ents." 1 Moore & P. 430; and in 8 B. It is clear that trespass would lie in such a case 
 
 & C. 70, it was held, that the declaration being against astranger, 1 East, 244; 4 Taunt. 548; 
 
 (1) A reservation in a deed, of a right tor the grantor to erect and occupy a milldam, is such 
 a tenement as may be recovered in ejectment. Jackson v. Buel, 9 Johns. 298. 
 
 ^11 1'^^^ "■ ^°^' ^ ^^°^^- 2*1 ' Huddleston d. Garrett, 3 Humph. 629 ; Winn «. Cole, Walk- 
 er, 119 But a defendant cannot, in Pennsylvania, avail himself of this rule, against a party 
 whom he has fraudulently induced to buy a bad title. Lane v. Reynard, 2 Sere. & Rawle, 65. 
 But see Walker v. Boulter, Addis. 390, 893. J . 6 
 
V. EJECT'MENT. 189 
 
 termined will not in general be permitted to insist that his lessor had no title ^^• 
 to demise and recover (c) ; nor will a third person in such case *be allowed ^•'eotment. 
 to defend as landlord (of) ; and if he have entered into the consent rule, the [ *^^^ ] 
 Court will discharge the same with costs (e) ; but after the expiration of a 
 notice to quit, given to him by his landlord, the tenant may show that his 
 landlord's title is at an end (/). The lessor of the plaintiff must also 
 have a strict leg-al right (g) (2) ; a mere equitable (3) and beneficial inter- 
 est without the legal title, will not suffice, and the doctrine that the legal 
 estate cannot be set up at law by a trustee against his cestui que trust no 
 longer prevails (A) (4). But where trustees ought to convey to the ben- 
 eficial owner, it will, after a lapse of many years and under certain cir- 
 cumstances, be left to the jury to presume that they have conveyed ac- 
 cordingly; so where the beneficial occupation of an estate by the posses- 
 sor under an equitable title (i) induces a fair presumption that there has 
 been a conveyance of the legal estate to such possessor (/c). But when 
 the facts of the case preclude such presumption, the party having only the 
 equitable interest cannot prevail in a Court of law (/). Where a lessor 
 and his lessee joined in an under-lease to a third person, in which it was 
 provided that if the under-lessee should be guilty of a breach of covenant, 
 then the first lessor and his lessee might enter ; it was held, that on breach 
 of the covenant in the lease to the under-lessee, ejectment might be main- 
 tained by the first lessee alone (m). 
 
 and according to Allen v. Rivington, 2 Saundj (d) 4 M. & Sel. 347, 348; Doe v. Mills, 1 
 
 111; 4 Taunt. 548, n. (a), priority of poses- Mood. & Rob. 385; 2 Add. & El. 17. 
 
 sion alone gives a good title to the lessor of the (c) 2 Younge & Jarvis, 88, 
 
 plaintiff against the defendant and all the (/) 3 M. & Sel. 516; see 1 D. & Ry. N. P. 
 
 world, except the person who has abetter title; 0. 1; but see 4 M. & Sel. 347, and ante, 189, 
 
 and this rule applies to the defendant, 8 East, note (c). 
 
 356. In the case of personal property, it is (g) 8 T. R. 2 Adams, 33. 
 
 clear that a person having possession, though (A) 5 East, 138; 11 Id. 334. 
 
 without any title, may support trespass, detin* (i) But no presumption that an outstand.^ 
 
 ue, or trover against a stranger who takes away ing terra has been satisfied will be made in 
 
 the property, see 2 Saund. 47 c. ; and it seems favor of a [party having no merits, and not 
 
 better policy to protect the quiet possession of having the equitable title, &c. 6 Bing. 174. 
 
 land against any person , but the real owner, (ft) 4 T. R. 683; 7 Id. 3, 47; 2 B. & Ai 
 
 than to encourage a strug'gle for the possession 782; 8 T. R. 122; 8 East, 248, 263. 
 
 by a party having no color of title (1). (_l) Id. ibid. 
 
 (c) 2 Bla. Rep. 1259; 7 T.R.488; sedvide (m) Doed. Bedford u. White, 4 Bing. 276; 
 
 4 T. R. 683; Peake's Law of Evid. 318; 2 Moore. 526, S. C. 
 Campb. 11, in notes; 3 M. & Sel. 516. 
 
 (1) In Smith v. Lorilard, 10 Johns. 338, it was held that a prior possession short of twenty 
 years under a claim or assertion of right, will prevail over a subsequent possession of less than 
 twenty years when no other evidence of title appears on either side; but that it was to be under- 
 stood that the prior possession of the plaintiff had not been voluntarily relinquished without the 
 animus revertendi, (as is frequently the case with possession taken by squatters), and that the 
 subsequent possession of the defendants was acquired by mere entry without any lawful right. 
 And see Bateman v. Allen, Cro. Eliz. 437. Jackson v. Hazen, 2 Johns. 22; Jackson v. Harder, 
 4 Johns. 202; The People v. Leonard, 11 Johns. 504. 
 
 (2) See, however, Hopkins v. Ward, 6 Munf. 38. 
 
 (3) Aco. Jackson v. Pierce, 2 Johns. 221; Jackson v. Deyo, 3 Johns. 417. Jackson v. Sis- 
 son, 2 Johns. Cas. 321; Goodtitle v. Way, 1 Term, 735; Doe' d. Eberall v. Lowe, 1 H. 447. An 
 equitable title is no offence in ejectment. Lindley v. Coatcs, 1 Ohio, 243 ; Spencer v. Markle, 2 
 ib. 268; Holt v. Hemphill, 3 ib. 232; Starle v. Smith, 5 ib. 455; Stuart v. Parish, 6 ib. 476; 
 Moore v. Bnrnet, 11 ib. 334; Jackson v Pierce, 2 Johns. 221; Siiiolair v. Jackson, 8 Cowen, 
 643; Thompson v. Wheatly, 5 Smedes & Marsh, 499; Winn v. Cole, Walker, 119. 
 
 (4) Vide Jackson v. Sisson, 2 Johns. Cas. 821; Jackson v. ChaSe, 2 Johns 84; Jackson v> 
 Pierce, Id. 226 ; 6 Halst. 158. A trustee may recover in ejectment against his cestui que trust. 
 Beach v. Beach, 14 Vermont, 28. But see as to what title is sufficient in Pennsylvania, Whar- 
 ton's Digest, tit. Ejectment. 
 
190 OP TBE FOSMS Of ACTIONS. 
 
 V. The lessor of the plaintiff must also in this action have the right ofpos- 
 
 BJEOTHENT; gession at the time of the demise laid in the declaration and at the com- 
 mencement of the action (w)(l). Therefore, the doctrine which formerly 
 prevailed, that a mortgagee might maintain an ejectment to get into the 
 receipt of the rents and profits, without giving a notice to quit, though a 
 tenant under a demise anterior to the mortgage be in possession, is now 
 exploded (o) ; and a remainder-man, or reversioner, cannot support this 
 action whilst the right of possession is in another (2). Nor can ejectment 
 be sustained where the right of entry of the real owner of the estate is 
 taken away (p') ; either by twenty years' adverse possession (?)(3) ; or 
 in some cases by a descent (4), from the person who made the ouster to 
 [ *191 J liis heir, when a writ of entry must be resorted to (r) ; or *by a discontinu- 
 ance (s), in which case frequently the remedy for the issue in tail is only 
 by writ of formedon (<). But the circumstances of the title of lessor of 
 the plaintiff having expired (m), or of his being tenant for life, and hav- 
 ing died (a;), since the day of the demise laid in the declaration, affords 
 no ground of objection on the trial, and proceedings may be continued in 
 the name of the nominal plaintiff for the recovery of mesne profits and 
 costs. 
 
 An actual entry is not in general necessary for the support of this ac- 
 tion (6), as it is in trespass ; but to avoid a fine with proclamations, it 
 must be made {y') ; and in many cases, though not absolutely necessary, 
 an entry is advisable ; thus an ejectment may be brought even after twenty 
 years adverse possession, if there has been an actual entry within the 
 twenty (6) years, and ejectment be brought within a year after such en^ 
 try (z) ; and trespass will not lie for mesne profits, which occurred before 
 an actual entry made to avoid a fine (a). 
 8dly. The This action is only sustainable for what in fact, or in point of law, 
 S'whom amounted to an ouster or dispossession of the lessor of the plaintiff (ft). 
 Committed. But such ouster rQ.a.j, and usually is, by merely holding oDer ; and an im-" 
 mediate tenant may be sued for the holding over by his under-tenant, 
 though against his will (c). It is necessary that the possession should be 
 adverse or illegal at the time of the supposed demise laid in the declara- 
 
 (n) 2 East, 257; 13 Id. 210; Cro. Eliz. (j) AnU, 190, u. {p) ; Selw. N. P. 652 to 
 
 800; 2 M. & Sel. 446. But a copyholder 657. 
 
 may lay the day of demise between the but- (t) 1 Saund. 812 c. 261, n. 3; Bun. Ejecti 
 
 render and his admittance, 16 East, 208. 42; 3 Bla. Com. 206; Bui. N. P. 99. 
 
 (0) Eun. Eject. 109; 3 East, 449. (u) 3 Campb. 447. 
 
 (p) 3 Bla. Com. 171, 206; Run. Eject. (i) 2 8tra. 1056; 3 Campb. 456. 
 
 284, 43. (y) 1 Saund. 319, 261, n; 3; 9 East, 17. 
 
 (g) 21Jac. 1, c. 16; 7 East, 299. What is (2) 1 Saund. 819 c. 
 
 not considered adverse posseBsion, Adams, 47, (a) 7 T. R. 727; 1 Saund. 319 b. 
 
 51, 70; 3 B. & C. 757, 413; 8 Id. 717; see 6 (J) 3 Bla. Com. 199^ 
 
 B. & Aid. 232; Tidd, 9th edit. 1195. (c) Post, 195. 
 
 (r) 3 Bla. Com. 176, 206; Run; Eject. 43; 
 »upro, note (p). When not; see 3 M. & SeU 
 271. 
 
 (1) Egglestou V, Bradford, 10 Ohio, 312 ; Wilson v. Inloes, 11 Gill & ^fohn. 351. 
 
 (2) Yide Jackson v. Schoonmaker, 4 Johns. 890; Hall v. Vandergrift, 3 Bam. 874. 
 
 (8) Jackson t). Wheat, 18 Johns. 44; Smith v. IjoHllard, 19 ib. 356; Smith v. Burtis, 9 ib; 
 147; Doe v. Campbell, 10 ib. 477. 
 
 (4) A descent cast does not in Ohio bar an ejectment. Holt v. Hemphill, 3 Ohio, 232. 
 
 (5) Vide Jackson ». Crysler, 1 Johns. Cas. 125; Siglar o. Van Biper, 10 Wendell, 414) 
 Beecherti. Parmele, 9 Vermont, 352; Rood v. Willard, Brayt. 67; Holt v, Hemphill, 3 Ohio, 
 232. 
 
 (6) But such entry must be for the purpose of taking poBBession. Jackion v. Schoonmaker, 
 4 Johns. 390. 
 
V. EJECTMENT. 191 
 
 tion in ejectment (d) ; for if there be no ouster, or the defendant be not in v. 
 possession at the time of the bringing of the action, it will fail(e) (1) ; =^^0™^!- 
 and in such case the plaintiff should proceed by action of trespass. An 
 action of ejectment is sustainable against a person who occupied a house 
 and withheld possession, though he did so merely as the servant for an- 
 other (/). An actual ouster may be by driving cattle out of the land, or 
 by not suffering the party to occupy it ; and in such case even one tenant 
 in common (2) may support an ejectment against his co-tenant : but in 
 general the mere receipt of all the profits by the latter will not amount to 
 an ouster (g-). If a tenant underlet, and at the end of his term his sub- 
 tenant refuse to quit, the original lessor may support ejectment against 
 both and both are liable to pay mesne profits (A). 
 
 The requisites and forms of the declaration in this action are pointed out Pleadings, 
 in the second volume. The count or counts should be on the *demise of &". 
 the person entitled to the legal estate and to the right of possession at the [ *192 ] 
 time of the supposed demise (i) ; and although the form is free from diffi- 
 culty, yet great care must be observed in applying the same ; thus if one or 
 more tenants in common were stated in one count to have jointly demised . 
 to the nominal plaintiff, instead of inserting separate demises, the action 
 would fail (Ji). On the other hand, unecessary counts should not be in- 
 serted, because, if the plaintiff should not establish all on the trial, he would 
 have to pay costs (/). 
 
 The premises must be described with certainty (m); and the omission 
 of the description where the premises are situate, is error, though the 
 county and vill in which the demise was made have been stated in the dec- 
 laration and the venue in the margin (w) (3). 
 
 If the defendant appear, he must, by the terms of the consent rule, 
 plead only the general issue, though he may, by leave of the Court, plead 
 to the jurisdiction (o). The damages, we have seen are merely nominal, 
 and it is usual to remit them, in order to recover a real compensation in an 
 action of trespass for the mesne profits (4), which may be brought in the 
 
 (d) 13 East, 210, 212; 2 East, 257. the defendant, 8 Campb. 178; and if a les- 
 
 (e) 7 T. R. 827; 1 B. & P. 573. sor's name be inserted without his consent, 
 (/) Doe d. Cuff V. Stradling. Sitting at the Court on motion, will order it to be struck 
 
 Westminster after Trin. Term. 1817, corom out of the declaration. 
 
 Mr. Justice Bayley, 1 Chit. R. 119. (&) Doe v. Errington, 3 Nev. & Man. 46, 
 
 (g) Run. Eject. 194; Co. Lit. 299 b; Cowp. (l) 1 Harr. & Wo, 10. 
 
 217; Adams, 52. (nt) As to the description of the parish, see 
 
 (A) Roe V. Wiggs, 2 New Rep. 330; but 1 T. & J. 492. 
 
 see Bourne v. Richards, 4 Taunt. 720. (n) Doe d. Rogers v, Bath, 2 Nov. & Man. 
 
 (i) 7 T. R. 47; 2M. S; Sel. 447; 16 East, 440. 
 
 208. A party's name should not be inserted (o) Adams on Eject. 241. 
 as a lessor merely to exclude his evidence for 
 
 (1) Aoo. Jackson v. Hakes, 2 Caines, 835; Cooley v. Penfield, 1 Vermont, 244; M'Daniels v. 
 Reed, 17 Vermont, 674. 
 
 (2) Vide Barnitz U.Casey, 7 Cranch, 456; Shaver d. M'Graw, 12 Wend. 562. The revised 
 statutes declare, that if the action of ejectment be brought , by tenants in common against their 
 co-tenants, they shall in addition to other necessary evidence, prove that the defendant ousted 
 the plaintiffs, or did some other act amounting to a total denial of their right as cc-tenants. 
 Valentine v. Northrup, 12 Wend. 494. 
 
 (8) Clark «. Clark, 7 Vermont, 190; Wdoster v. Butler, 13 Conn. 309; Newman v. Lawless, 
 6 Missouri, 283. 
 
 (4) But the entry of the remittitur damnum is mere form, and tlje want of it will not pre- 
 plude the party froia bringing an action for the mesne profits. Van Allen v. Rogers, 1 Johns. 
 Qaa. 281. 
 
192 OF THE FORMS- OP ACTIONS. 
 
 name of the nominal plaintiff or of the lessor (p). But by 1 Geo. 4, c. 
 
 V. 
 
 XJECTMENI. 
 
 87, s. 2, at the trial of an action of ejectment by a landlord against his 
 tenant, the judge may permit the plaintiff, after proof of his right, to re- 
 cover the whole or any part of the premises, to go into evidence of the 
 mesne profits from the expiration of the tenancy down to the time of the 
 verdict, or to some day specially named tjierein ; and the jury may include 
 damages for such mesne profits in their verdicts (1). Full costs are re- 
 coverable ; but when the judgement is against the casual ejector by the 
 default of the party in possession, the only mode of recovering the costs is 
 by an action of trespass for the mesne profits (2), which much resembles 
 the common action of trespass, and the particular properties of which will 
 form the next subject for our consideration. The judgment is that the 
 plaintiff do recover his term, (or terms, according to the number of demi- 
 ses in the declaration), of and in the tenements, and, (unless the damages 
 be remitted, as is most usual), the damages: assessed by a jury, with the costs 
 of increase. The writ of possession which has hitherto followed the judg- 
 ment may now be issued immediately after the trial at Nisi Prius ; in cases 
 where the verdict is given for the plaintiff, or he is nonsuited for want 
 r *193 1 *of the defendant's appearance to confess lease, entry and ouster, upon 
 the judge's certificate to that effect, under the 1st Will. 4, c. 90, s. 38. 
 
 If upon a notice to quit, given to a tenant, he give notice to his under- 
 tenants to quit at the same time, and upon the expiration of the notice he 
 quits so much as is occupied by himself, but his under-tenants refuse to 
 quit, an ejectment, and also an action of trespass for mesne profits may 
 still be maintained against him for so much as his under-tenants have not 
 given up (9). 
 
 A termor who lets to an under-tenant, cannot, after his term has ex- 
 pired, enforce the continuance of the under-tenancy by distress, if the un- 
 der-tenant refuse to acknowledge him as landlord, or pay him under 
 threat of distress, although the under-tenant still retains the possession. 
 
 VI. ON THE ACTION POR MESNE PROFITS (3). " 
 
 Ti. ACTION The action of ejectment, as at present conducted, though nominally a 
 FOB MESNE jjjj-^g^ action, being altogether a mere fiction, it being brought by a nomi- 
 
 In general. 
 
 (p) The nominal plaintiff may be made the plaintiff cannot release the action of ejectment, 
 
 plaintiff in an action for an escape of a defend- 4 M. & Sel. 300. 
 
 ant out of an execution in the action for mesne (9) Roe v. Wiggs, 2 Bos. & Pul. New Rep. 
 
 profits, 2 M. &. Sel. 478. The lessor of the 330; but see Bourne 1;. Richards, 4 Taunt. 720. 
 
 (1) ^cc. in Pennsylvania, Dawson v. M'Gill, 4 Whart. 230. 
 
 (2) Vide Baron v. Abeel, 3 Johns. 483. 
 
 (3) The right to mesne profits is a necessary consequence of a recovery in ejectment. Benson 
 ». Matsdorf, 2 Johns. 369; Murphy v. Greinon, 2 Hayw. 145; Poindexter v. Cherry, 4 Terger, 
 805. See Winkley v. Hill, 6 N. Hamp. 391. But they can be recovered only since the time of 
 the demise laid in the declaration. Denn v. Chubb, Coxe, 466, and previously to the commence- 
 ment of the action of ejectment in Connecticut. Starr v. Pease, 8 Conn. 541. 
 
 In trespass for mesne profits, the record of the recovery in ejectment, is conclusive of the title 
 of the lessor of the plaintiff, at the date of the demise, but not of the time when the possession 
 commenced. Poston v. Jones, 2 Dev. &. Bat. 294; Chirac v. Reinicker, 11 Wheat. 280; Whit- 
 tingtont). Christian, 2 Rand, 353; Buntini). Duohane,! Blackf. 56; Lloyd. ».Nourse, 2Rawle, 49. 
 
 No defence can be set up in bar of the action for mesne profits, which would have been a bar 
 to the action of ejectment. Baron v. Abeel, 8 Johns. 481; See Bensou v. Matsdorf, 2 ib. 869. 
 
 After trespass to try. title and a recovery, no other action will lie for mesne promts. Sumter 
 V. Lehie, Const. Rep. 102. 
 
V. EJECTMENT. 193 
 
 nal plaintiff against a nominal defendant for a supposed ouster, merely nom- vi. aotiojt 
 inal damages are given ; and satisfaction for the injury the real plaintiff has ^°^ '"''""= 
 sustained by being kept out of the mesne profits, &c. is not, in general in- "'"'™' 
 eluded in the verdict in the ejectment. The law has therefore provided a 
 remedy for this injury ; namely, by an action which is inform an action of 
 trespass vi et armis, but in effect to recover the rents and profits of the es- 
 tate. It is in form an action of trespass, because it is consequent upon, 
 and, as it were, supplemental to, the action of ejectment, and therefore 
 must necessarily be of the same species with it. In this action the plain- 
 tiff complains of his ejection, of the reception of the mesne profits by the 
 defendant, and of the waste or dilapidations, if any committed or suffered 
 by him, and prays judgement for the damages thereby sustained. It has ' 
 been said that the lessor in ejectment may, if he please, waive the trespass, 
 and recover the mesne profits in an action for use and occupation (»•); but 
 this election must be limited to the profits accruing antecedently to the day 
 of the demise in the declaration in ejectment ; for the action for use and oc- 
 cupation is founded on a contract ; the action of ejectment upon a wrong ; 
 and when applied to the same period of time, are wholly inconsistent with 
 each other ; since in the former the plaintiff treats the defendant as his ten- 
 ant, and in the *latter as a trespasser (<). "When, however, a tenant holds [ *194 1 
 over after the expiration of the landlord's notice to quit, the landlord, af- 
 ter a recovery in ejectment, may waive his action for mesne profits, and 
 maintain debt upon the 4 Geo. 2, c. 28, against the tenant, for double the 
 yearly value of the premises during the time he so holds over ; for the dou- 
 ble value is given by way of penalty, and not as rent (m) ; but it is not 
 yet settled whether, when the ejectment is founded upon a notice to quit 
 given by the tenant, the landlord is entitled to maintain debt upon the 11 . 
 Geo. 2, c. 19, for double rent: the better opinion seems to be that he is 
 not (a;). This action, however, is not in all cases necessary ; for by the 
 statute (2^), in actions of ejectment between landlord and tenant, the 
 landlord may, upon such proof of his right to recover possession of the 
 whole or any part of the premises mentioned in the declaration, give evi* 
 dence of and recover in such action the mesne profits of the premises 
 fr om the expiration of the tenant's interest down to the time of the ver^ 
 diet, or some other prior day, to be specially mentioned therein ; but tres- 
 pass must be resorted to for the profits accruing subsequently. 
 
 The action for mesne profits may be brought pending a writ of error in 
 ejectment, and the plaintiff may proceed to ascertain his damages, and to 
 sign his judgment (1) but the Court will stay execution until the writ of 
 error is determined (z). The action is local in its nature, and must be 
 brought in the county where the lands are situate. 
 
 The action for mesne profits may be brought by the lessor of the plaiur By whom 
 tiff in ejectment either in his own name,^ or in the name of the nominal *° ^^ 
 lessee, (John Doe) ; but in either shape it is equally his action ; for it is ^^j"^ 
 not in any manner affected by the fiction which prevails in the eject- 
 
 (r) Doug. 58i;' Cowp. 243. (,y) 1 Geo. 4, c, 87, s. 2. 
 
 {t) 1 T. R. 378, 387. (z) Cas. Prac. C. P. 46; 12 Mod. 138. 
 
 (m) 9 East, 310. (a) As to ejectment by church- wardens and 
 
 Ix) Cowp. 245; Burr. 1603; 9 East, 314; overseers in that character, see 6 Car & P. 
 
 Adams on Eject. 138, and 328, 2d edit. 625. 
 
 (1) Jackson u. Delancy, 5 Cowen, 33; Lion v. Burtis, ib. 408; White ». Oreitons, Minor 
 331. 
 
 YOL. I. 29 
 
194 , OP THE FORMS OP ACTION. 
 
 Ti. ACTION nient(l). It is, however, sometimes more advantageous to bringthe action 
 
 PEorm™'' ^^ ^^^ name of the lessor of the plaintiff, who is the party really concerned ; 
 as he may then recover damages for the rents and profits received by the 
 defendant previously to the time of the demise iaid in the declaration in eject- 
 ment; which cannot be done at the suit of of the nominal plaintiff (6).. And 
 the Courts will stay the proceedings until security be given for costs when, 
 the action for mesne profits is brought in the name of the nominal lessee 
 (c). The action may be brought in the name of the nominal lessee, as 
 well where the judgment in ejectment is by default, as where it is upon a 
 verdict ; for there is no distinction between the judgment by default and 
 upon verdict in this respect : in the one, the right of the plaintiff is tried 
 
 [ *195 ] *and determined against the defendant, and in the other it is confessed 
 (rf). A tenant in common, who has recovered in ejectment, may main- 
 tain an action for mesne profits against his companion (e). A joint ac- 
 tion for mesne profits may be supported by several lessors of the plaintiff 
 in ejectment after recovery therein, although the declaration in ejectment 
 contained only a separate demise by each (/). In the case of Keech 
 dem. Warneu. Hall, (g-), where it was held, that a mortgagee might re- 
 cover in ejectment, without a previous notice to quit, against a tenant 
 claiming under a lease from the mortgagor, granted after the mortgage, 
 without the privity of the mortgagee, it was asked by the counsel for the 
 defendant, if such mortgagee might also maintain an action against the 
 .tenant for mesne profits, which would be a manifest hardship and injus- 
 tice to the tenant, as he would then pay the rent twice. Lord Mansfield, 
 C. J., gave no opinion on that point ; but said there might be a distinc- 
 tion, for the mortgagor might be considered as receiving the rent in order 
 • to pay the interest, by an implied authority from the mortgagee, until he 
 determined his will (A) (2). 
 
 Against fhe person against whom the judgment in ejectment has been given, 
 
 ought, in general, to be made the defendant in this action ; and a recov- 
 ery in ejectment against the wife cannot be admitted as evidence in an 
 action against the husband and wife for mesne profits (i). It seems to 
 have been doubted whether a tenant, whose under-tenant holds over after 
 the expiration of his term, is liable for mesne profits (Je) ; but in practice 
 the former is often joined in the action with his under-tenant ; and he ap- 
 pears to be liable, at all events, if ho has expressly recognized the acts of 
 his under-tenant, and has received rent from him for the period possession 
 was improperly detained Q) . And in general any person found in pos- 
 session, after a recovery in ejectment, is liable to the action ; and it is no 
 defence, that he was on the premises merely as an agent, and under the 
 
 (6) Bui. N. p. 87; 8 B. & C. 551, note. (g) Doug. 21; see ante, 190. 
 See an additional reason there given. (ft) And see 4 Ann. c. 16, s. 10. 
 
 (c) Say, Costs, 126. (i)7T. K. 112. 
 
 {d) Burr. 665. (&) JPcr Mansfield, C. J.. 4 Taunt. 720. 
 
 (c) 3 Wils. 118; Bla. Eep. 1077. (l) And see Roer. Wiggs, 2 New Rep 330, 
 
 (/) 5 M. & Sel. 64; 2 Oh. Rep 410. and 4 Taunt. 720 
 
 (1) A disseisee, who, having a right of entry, enters on the disseisor, may sustain trespass for 
 the mesne profits. Cox v. Callender, 9 Mass. 533, 535; Taylor v. Townsend, 8 Mass. 411, 
 415; Cuts V. Spring, 15 ib. 135, 137; Morgan v. Variok, 8 Wendell, 587. 
 
 (2) A mortgagee cannot sustain an action tov the mesne profits before actual entry, although 
 the condition has been broken, and he has commenced an action to foreclose. Wilder v. Hough- 
 ton, 1 Pick. 89; Gibson v. Farley, 16 Mass. 280, 286; Mayo i>. Fletcher, 14 Pick. 525, 531. See 
 Boston Bank v. Reed, 8 Pick;, 459. But see Lyman v. Mower, 6 Vermont, 345; Warner v. 
 Pate, 5 ib. 166. A devisee cannot, after judgment in his favor in an action ot formedon, sus.- 
 fain trespass for the mesne profits. Fletcher v. M'Farlane, 12 Mass. 48. 
 
VI. ACTION EOR MESNE PROFITS. 195 
 
 license of the defendant in ejectment, for no man can license another to '^i- ao*ion 
 do an illegal act (1). The defendant, however, in such case, will only be f^on^'"'" 
 liable for the mesne profits for the time during which he actually retained 
 possession (ni). The action being in trespass could not be maintained by 
 or against personal representatives for the profits accruing during the 
 life-time of the testator or intestate, and received by him (ra). But we 
 have seen that the 3 & 4 W. 4, c. 42, sect. 2, altered the law in this re- 
 spect (o). 
 
 *The Declaration should state the time when the defendant ejected the [ *196 ] 
 plain tiff, and the length of time he was kept out of possession : and a dec- "Shededa- 
 laration which does not contain these averments is bad on special demurrer ; '■«*'"""' 
 but the defect is aided after judgment by the statute 4 Ann. c. 16 {p), ^ ' *'" 
 The land or other premises from which the profits arose should also- be 
 described in the declaration. It is usual to adopt the description of the 
 premises which was given in the declaration in ejectment. It is then 
 averred that the defendant received the mesne profits, showing their valuej 
 during the time the plaintiff was kept out of possession If any particu- 
 lar -W-aste or injury to the premises was committed by the defendant, the 
 same should be stated specially ; and as a part of the damages the costs 
 of the action of ejectment may be claimed.. And the 3 & 4 W. 4, c. 42, 
 sect. 21, seems to enable the defendant, by leave of the Court or a judge, 
 to pay a sum to cover damages into Court, though this was not before ad- 
 'missible. The plea of not guilty is the same as usual in trespass. The 
 general rule is, that a party against whom the recovery in ejectment was 
 had, cannot, in the action for mesne profits, dispute the right of the les- 
 sor of the plaintiff to recover mesne profits after the day of demise laid 
 in the declaration (g). The defendant may protect himself by the statute 
 of limitations from the mesne profits accruing more than six years before 
 the action is brought (r). Bankruptcy is no bar to this action, because 
 the damages are uncertain, and coiild not be proved under a fiat in bank- 
 ruptcy (s). Nor does the discharge of the defendant under an insolvent 
 act protect him from this action Q). 
 
 In estimating the damages the jury are not confined to the mei'e rent '^^^ dama- 
 or annual value of the premises, but may give such extra damages as they ^mwi). 
 may think the circumstances of the case demand (u) ; and the costs of 
 the action of ejectment are recoverable as part of the damages, not only 
 where judgment by default was obtained in the action of ejectment, but 
 also where the defendant appeared and pleaded in that action ; nor is it 
 material in these cases that such costs have not been taxed (x). And 
 the plaintiff may also recover as damages the costs incurred by him in a 
 
 (m) Girdlestone v. Porter. K. B. 39 Geo. 8; (r) Bui. N. P. 88. 
 
 Woodf. Landl. & Ten. 7th edit. 419; Adams, (s) Doug. 584. But where the .damages 
 
 831. So a servant is liable in trover, ante, arfe reduoiblfi to a certainty, without the inter- 
 
 129, 164. vention of a jury, it may perhaps be other- 
 
 (») Ante, 70, 81. wise, id. n. (2). And see Adams, 838. 
 
 (o) Id. ibid, (t) 8 B. & Aid. 407. 
 
 (p) 13 East. 407. (a) 2 Wils. 121. 
 
 (j) See Adams, 333, 835; 8 B. & C. 551, (x) 1 Cromp. & Jerv. K. 29. 
 note. As to the evidence, see Adams, 385. 
 
 (1) Trespass for mesne profits, does not lie against the lessee of a disseisor. Fletcher v. 
 M'farlane, 12 Mass. 43; Emerson v. Thompsah, 2 Pick. 473, 485, 486. 
 
 (2) See Smerson v. Thompson, 2 Pick. 473; Denn v. Chubb, Goxe, 466; Starrs. Pease, 8 
 Conn. 641; Little v. Meachums, 1 Tyler, 438; Huston v. Wickersham, 2 Watts & Serg. 808; 
 Coaoh V. Gerry. 3 Earring. 423. 
 
l96 CONSEQUENCES OP A MISTAKE IN THE POKM OP ACTION. 
 
 VI. 
 
 TOB MESNE 
 FBOfllS. 
 
 :. ACTION Court of error, ia reversing the judgment in ejectment erroneously obtain- 
 ed by the defendant, although directly such costs may not be recorerable 
 (y). If the plaintiff recover less than 405. and the judge do not certify 
 that the title came in question, the plaintiff is entitled to no more costs 
 than damages ; and this whether the action be in the name of the lessor 
 of the plaintiff, or in that of his nominal lessee (2). 
 
 t*19T ] CONSBQUBNOES OP A MISTAKE IN THE FORM OP ACTION. 
 
 ooNSB- ^e ijave seen that the Courts consider it of great importance that the 
 ^^j"],^"^ boundaries between the different actions should be preserved (a); and 
 
 FOBM OF the consequences of a mistake in the application of the remedy are very 
 
 AoiioN. material. 
 
 When the objection to the form of the action is substantial, and ap- 
 pears upon the face of the declaration, without regard to extrinsic facts, 
 it may be taken advantage gf by demurrer, or by motion in arrest of 
 judgment, or by writ of error (6). But if the objection is not now app(P 
 rent on the face of the declaration, but may only be established by the 
 proof of extrinsic facts, then the only mode of objection may be on the 
 trial as a variance and failure in proving an injury as described in the de- 
 claration, and consequently ground of nonsuit. Thus where the plaintiff 
 in an action in other respects on the case stated that the defendant wilful' 
 ly drove his coach and horses against the plaintiff's carriage, the Court 
 arrested the judgment, on the ground that it necessarily appeared from 
 such allegation that the action should have been trespass, and not case 
 (c). When the defendant demurs he is entitled to costs, but not so upon 
 a motion in arrest of judgment (1), or writ of error (2), because he 
 ought to have objected at an earlier stage and by demurrer ; and conse- 
 quently where delay is not desired by the defendant, it is preferable to 
 demur, in order to obtain costs. The cases are contradictory upon the 
 question, whether a substantial objection to the form of action is a ground 
 of nonsuit (d) (3). In a case where it appeared upon the face of the 
 declaration, that the action should have been brought against the sheriff, 
 and not against the under-sheriff ; after verdict, upon a rule to show 
 cause why a nonsuit should not be entered, Lord Mansfield observed, that 
 
 iy) 7 B. & C. 404. (6) 1 B. & P. 476; 6 T. R. 125; :Cowp. 
 
 (a) 2 Cromp. Prao. 225 j Tidd. 9th edit. 407, 5 Moore, 532. Formerly It was the 
 
 964. ground of a plea in abatement, post, title 
 
 (0) .anie, 96, 97, n. («). The Courts will " Pleas in Abatement." 
 
 not decide upon a question in a wrong form of (c) 6 T. R. 125; 8 T. E. 188; 1 East, 
 
 action, even though the parties agree to waive 109. 
 
 the objection, id. (d) Cowp. 407, 414; 1 Camp. 256. 
 
 (1) Vide Pangburn v. Ramsay, 11 Johns. 141. 
 
 (2) In the State of New York, a late statute has given costs on the reversal of a judgment. 
 Sess. 86. 0. 96. s. 13; 1 R. L. 846; 2 Rev. Stat. 618. s. 31. 
 
 (3) The plaintiff cannot be nonsuited on account of a defect in his declaration. Van Vechten 
 V. Graves, 4 Johns. 403. Nor can he be nonsuHed without his consent, after he has given evi- 
 dence in support of his cause. Irving v. Taggart, 1 Serg. & Rawle, 360. And on a motion for 
 a new trial, the defendant cannot object to the form of the action. Smith v. Elder, 3 Johns. 
 105. 
 
CONSEQUENCES OF MISTAKE IN THE POBM OP ACTION. 197 
 
 if the Court should order a nonsuit to be entered, the plaintiff must pay oonsb- 
 the defendant his own costs, but if the judgment was arrested, each party ^'gj^j* 
 must pay his own costs ; but that as it appeared upon the declaration in eokm of 
 that case, that the defendant might have demurred, and thereby have action. 
 preTented the costs of the subsequent proceedings, the Court would ar- 
 rest the judgment, and not permit a nonsuit to be- entered (e) ; but in a 
 more recent case it was held otherwise (/) 
 
 *When the objection to the form of action does not appear on the face [ *198 ] 
 of the pleadings, it can only be taken as a ground of nonsuit, in which 
 case the defendant will be entitled to his costs (g). Thus where the ac- 
 tion was in assumpsit for money had and received, and it appeared on the 
 trial that the plaintiff should have declared in another form of action, yet 
 as the objection was not apparent on the face of the declaration, and con- 
 sequently the defendant could not demur, or avail himself of it otherwise 
 than on the trial, it was decided that the plaintiff was properly nonsuited 
 (Ji). Where the plaintiff has mistaken the proper form of action, and 
 , declared in assumpsit instead of debt, he may even in a penal action have 
 leave to amend, though not so as to charge the defendant's bail (i). But 
 it seems discretionary in the Court to permit an amendment in a penal ac- 
 tion Qe) (1). If by either of these means the plaintiff fail in his action, 
 and judgment be given against him for that reason, and not upon the 
 merits, he is at liberty to commence a fresh action (2) ; and the defend- 
 ant cannot plead in bar the proceedings in the first ineffectual suit (J). 
 Thus, if the plaintiff by mistake bring trespass instead of trover, and 
 judgment be given against him on that account, the defendant cannot 
 ple?id it in bar to an action of trover brought afterwards against him (m) ; 
 and if the plaintiff mistake his cause of action, and the defendant demur, 
 the plaintiff is certainly not precluded from commencing a fresh action, 
 and may reply to a plea in bar of the judgment on demurrer, that the 
 same was not obtained on the merits (w) (3)- But if the defendant 
 plead, and the plaintiff take the issue, and a verdict be found for the de- 
 fendant upon the merits, the plaintiff will be estopped from bringing a 
 fresh action ; provided the defendant plead the former verdict specially 
 as an estoppel; for if he omit to do so it is, under the general issue, 
 merely matter of argument and inference, in his favor (o)(4). If the 
 plaintiff demur to the plea in bar upon the merits, and such plea be suffi- 
 ce) Cowp. 407. (I) 2 Saund 47 p. 3. Wils. 809. 
 
 (/) 1 Camp. 256. (m) Id. Ibid. 
 
 (g-) Coffp. 407, 414. {n) 1 Mod. 207; Vin. Abr. Judgment, Q. 
 
 (ft) Cowp. 414 to 419. 4; Bl. E«p. 831. 
 
 (i) 2 Marsh. 124, 185. (o) 2 B. & Aid. 662; Mo'Clel. & Y. 509. 
 
 {k) 3 Dowl. 636, 637. 
 
 (1) See Martin v. M'Knight, 1 Overton, 380; Walton v. Kirby, 2 Hajw. 174; Dulany v. 
 Norwood, 4 Har. & M'Hen. 496; Low v. Little, 17 Johns. 346; Barber v. M'Henry, 6 Wend. 
 516; Davis v. Saunders, 7 Mass. 62.. 
 
 (2) Vide Benton v. Dufly, Cam. &Norw. 98; Com. Dig. Action, L. 4; Phillips' Ev. 235. Close 
 ». Stuart, 4 Wend. 95. 
 
 (3) A decision of the court in favor of the defendant, upon an agreed statement of faots, and 
 a nonsuit of the plaintilGf entered, and judgment thereon for the defendant for his costs, pursu- 
 ant to such agreement, constitute no bar to a subsequent action for the same cause. Knox v. 
 Waldborough, 5 Greenl. 185; 10 Pet. U. S. C. 298; Wilbur v. Gilmore, 21 Pick. 253. See 
 Hampton v. Broom, Miles, 241. 
 
 (4) Howard v. Mitchell, 14 Mass. 241 ; Wood o. Jaolsson, 8 Wend. 1 ; Church d. Leavenworth, 
 4 Day, 274; Towns v. Nims, 6 N. Hamp. 259; Wright v. Butler, 6 Wend. 288; Shafer v. Stone* 
 broker, 4 Gill & Johns. 859. 
 
198 of JOINDEB OF ACTIONS. 
 
 oient, in that case also no second action can be commenced (/>) ; but if 
 the plea were not sufficient, and the judgment against the plaintiff was on 
 the defect in his declaration, the former judgment against him will bo no 
 bar (jq). 
 
 [ *199 ] *0P JOINDER OF ACTIONS (t;). 
 
 OF joiNDEE Where the plaintiff has two causes of action, which may be joined in 
 oFACTioNs. ^^^ action, he ought to bring one action only (1), and if he commence 
 two actions, he may be compelled to consolidate them, and to pay the 
 costs of the application (j) (2). It is, therefore, material to ascertain 
 when several demands may be included in the same action. This may be 
 considered with reference to first, the joinder of different forms of ac- 
 tions; secondly, of different rights of action; and, thirdly, the conse- 
 quences of misjoinder. 
 
 1st. Join- The joinder in action often depends on the form ■(3) of the action, 
 j®^"* °^ ^'*" rather than on the subject-matter or cause of action: thus in an action 
 formt of against a carrier for the loss of goods, if the plaintiff declare in assump- 
 oetion. sit he cannot join a count in trover, as he may if he declare against him 
 in ease; for the joinder depends on the form of the action (s) (4). If 
 
 (p) 1 Mod. 207; Vin. Abr. Judgment, Q. 4. (r) 2 T. R. 639; Tidd, 9th edit. 619. Aliter , 
 
 (q) 1 Mod. 207; Vin, Abr. Judgment, Q. if, at tbe time of bringing the first action, the 
 
 4, pi. 3. other cause of action had not become perfect 
 
 (u) The joinder of several persons in a suit and complete, id. ; 1 Chit. Rep. 709 a ; 9 
 
 has already been considered. As to joinder of Price, 303. 
 
 actions in general, see 2 Saund. 117 a, note; (s) Per BnUer, J. 1 T. R. 277. And see 
 
 Tidd, 9th ed. 10 to 14; Com. Dig. Action, G. ; the judgment of Lord EUenborough, C. J., in 
 
 Bac. Ab. Actions in General, C. ; 2 Vin. Ab. 8 East, 70; and ante, 134. 
 88, Actions, Joinder, U. c. ; Gilb; C. P. 5, &o. 
 
 (1) A plaintiff cannot split up an entire cause of action, so as to maintain two suits upon it 
 without the defendant's consent; if he attempt to do so, a recovery in the first suit though for 
 less than his whole demand, is a bar to the second. Ingraham v. Hull, 11 Serg. & R. 78; Crips 
 II. Tolrande, 4 M'Cord, 20; Smith v. Jones, 16 Johns. 229; Willard v. Sperry, 16 Johns. 121; 
 Avery v. Fitch, 4 Conn. 362; Vance v. Lancaster, 8 Hayw. 130; Corwin v. Corwin, 15 Wend. 
 557; Strike's case, 1 Bland. 95; James v. Lawrence, 7 Har. & Johns. 73; Stevens v. Lockwood, 
 13 Wend. 644; Guernsey v. Carver, 6 Wend. 492; Badger v. Titoomb, 15 Pick. 409; Hite v. 
 Long, 6 Rand. 457; Ex parte Gale, R. M. Charlt, 214; Merrick v. Dawson, 2 Earring. 50; 
 Planters & Mechanics Bank v. Chlpley, Georgia Decis. 50. 
 
 (2) Vide Thompson v. Shepherd, 9 Johns. 262. See on the subject of consolidating notions. 
 M'Rheaij. Boast, 8 Rand. 481; Scott v. BroV™, 1 Nott & M. 417; People v. M'Donald, I 
 Cowen, 189; Brewster u. Stewart, 8 Wend. 441; TJ. States Bank v. Strong, 9 Wend. 451; 
 Planter's, &c. Bank i). Cohen, 2 Nott & M. 440; Panot v. Green, 1 M'Cord, 531; Scott v. 
 Cohen, 1 N. & M. 413; Camman v. New York Ins. Co., 1 Gaines, 114; Miokle v. Brewer, 8 
 Halst. 85; Den v. Kemble, 4 Halst. 335; Worley v. Glentworth, 5 Halst. 241; Brown o. Scott, 
 1 Dall. 145; Bumsey v. Wynkoop, 1 Yeates, 5; Prior v. Kelly, 4 Yeates, 128; Groff v. Mussee, 
 3 Serg. & B. 262; Reid v. Dodson, 1 Overt. 896; Powells. Gray, 1 Alabama, 77; Wilkinson i). 
 Johnson, 4 Hill, 46; Phillips v. Delane, 2 Brevard, 429; Sykes o. The Planters' House, &c., 
 7 Missouri, 477. The consolidation rule in New York is the same as the English Rule. Clasoa 
 V. Church, Coleman, 62; Waterbury v. Delafield, 1 Caines, 518; Earl v. LefFerts, Coleman, 98; 
 Jackson v. Seauber, 4 Cowen, 78; Higginson v. Gray, 8 Mass. 385. Actions will be consolidat- 
 ed in New York, although one suit was contmenoed before the cause of action accrued in the 
 other. Dunning v. Bank of Auburn, 19 Wendell, 23.- See Anderson v. Towgood, 1 Adol. & 
 El. U. S. 245. 
 
 (3) But see Hallock v. Powell, 2 Caines, 216. 
 
 (4) Causes of action founded on tort and on contract cannot be joined in the same declara- 
 tion. Church V. Mumford, 11 Johns. 480; Clinton v. Hopkins, 2 Root, 225; Ryle ti. Howlet, 8 
 Bibb. 847; Stoyel t>. Westcott, 2 Day 418; Wickliffe v. Saunders, 6 Monroe, 298; Same v. Da- 
 
OP JOINDER pP ACTIONS. 199 
 
 a cause of action which ought to be laid in assumpsit, be improperly laid of joiitder 
 in case, and joined with a count in trover, no objection can be taken with o^J^o'^'o^'s- 
 effect on the ground of misjoinder, but only the particular defective count 
 should be demurred to (f). But if the count objected to be for a non- 
 feasance and breach of a contract, and is substantially in assumpsit, 
 though it omit the words, " undertook and faithfully promised," yet it 
 will be considered as framed in assumpsit, and if it be joined with other 
 counts merely for torts, the misjoinder will invalidate the whole declar- 
 ation (m). In a declaration on the case, one count stated that the plain- 
 tiff, at the request of the defendant, had caused to be delivered to him 
 certain swine to be taken care of for reward, and in consideration there- 
 of defendant agreed with plaintiff to take care of the swine, and re-deliver 
 the same on request ; and the Court held, on motion in arrest of judg- 
 ment, that this was a count in assumpsit, and could not be joined with 
 counts in case (x). The result of the authorities is stated to be, that 
 " when the same plea may be pleaded, *and the same judgment given on L ^00 ] 
 all the counts of the declaration ; or whenever the counts are of the same 
 nature, and the same judgment is to be given on them all, though the pleas 
 be different, as in the case of debt upon bond and on simple contract, they 
 may be joined" (2/) (1). Perhaps the latter, that is, the nature of the 
 cause of action, is the best test or criterion by which to decide as to the 
 joinder of counts (z). By this rule we may decide in general what forms 
 of action may be joined in the same declaration. 
 
 In actions in form ex contractu, the plaintiff may join as many different 
 counts as he has causes of action of the same nature in assumpsit ; so also 
 in covenant, debt, account, annuity, or scire facias (a). So debt on bond 
 or other specialty, may be joined in the same action with debt on judgment, 
 or on simple contract, or for an amerciament (2) ; and debt and detinue 
 may be joined together, though in all these cases the pleas are different, 
 and in detinue the judgment also varies from the form of the judgment in 
 debt (¥) ; which joinder has probably been allowed, because the practice is 
 sanctioned by the entries in the Registrum Brevium(c'). So several 
 
 (<) 6 East, 335, 386; 1 New. Kep. 45. (b) Bro. Ab. Joinder in Action, 97; Gilb. ' 
 
 (m) Thomas v. Pearse, 1 Chit. Kep. 619, C. P. 5; 2 Saund. 117 b; 1 Wills. 252. See 
 
 K. B. Easter Term, 1817. What a misjoin- the form of debt and detinue in the same deo- 
 
 der of case and assumpsit, 2 Chit. Kep. 343; laration, post, vol. ii. In 5 Mod. 89, it is 
 
 ante, 134, 136. aaid by the Court, that it seems strange that 
 
 (x) 6 B. & C. 268; ante, 136. debt and detinue should be joined, because 
 
 (j/) 2 Saund. 117, e. f; Bae. A, Actions in these actions have different judgments. Mr. 
 
 General; Com. Dig. Action, G. Tidd.(p. 11. n. b.) observes, that " in order to 
 
 (z) Tidd, 9th ed. 12. join debt and detinue, it seems they must both 
 
 (0) Bac. Ab. Actions in General, C; Com. be founded on Contrnd." Sed qu. 
 
 Dig. Actions, G; 2 Vin. Ab. pi. 42, 45, 64; (c) Gilb. C. P. 5, 6, 7; Bao.Ab. Actions in 
 Tidd, 9th ed. 10, 11. General, C. 
 
 vis, 2 J. J. Marsh. 70; Carstarphen v. Graves, 1 A. K. Marsh. 435; Sayers v. Soudder, 1 Penn. 
 58; Van Pelt v. Van Pelt, 2 Penn. 619; Toris v. Long, 1 Taylor, 20; Traudle v. Arnold. 7 J. 
 J. Marsh, 407. . 
 
 Trespass or trover cannot be joined with assumpsit. Polhumus v. Annin, Coxe, 176; Little 
 V. Gibbs, 1 South, 11; Howe v. Cook, 21 Wendell, 29. 
 
 (1) Whipple B. Fuller, 11 Conn. 582. 
 
 (2) So debt on simplp contract and on judgment may be joined. The Union Cotton Man- 
 ufactory i. Lobdell, 13 Johns. 462. Or on specialty, Mardis v. Terrell, Walker, 327 ; Tillot- 
 son V Stiff 1 Blackf. 77; Flood v. Yandes, ib. 102; Smith v. Lowell, 8 Pick. 178; Vandeusen 
 V Bliim, 18 Pick. 229, 231;Farnham v. Hay, 8 Blackf. 167; Eib. 1). Pindall, 5 Leigh, 109; 
 Patterson v. Chalmers, 7 B. Monroe, 595. Counts in debt and assumpsit cannot be joined. 
 Flood V. Yandes, 1 Blackf. 102. Counts in detinue ex contractu, and in debt may be joined. 
 Backer v. Hamilton, 3 Dana, 36. Calvert v. Marlow, 18 Alabama, 67. 
 
200 OP JOINDER OP ACTIONS. 
 
 OP jonroisE counts may be joiaed in one action on a penal statute for different penal- 
 or AOTioMs. ^jgg Qf a, similar nature, as for several acts of bribery (d). 
 
 So, in actions in form ex delicto, several distinct trespasses may be 
 joined in the same declaration in trespass (e) (1). And several causes of 
 action in case may be joined with trover (/) (2) ; thus case against a com- 
 mon carrier for losing goods ; or a count for immoderately riding a horse ; 
 or for disturbing the plaintiff in his right of common ; or for hindering 
 him from landing goods upon a yard of the defendant, contrary to agree- 
 ment between them (g-) ; or for not returning to the plaintiff a spaniel 
 delivered to the defendant, to be tried and returned in a reasonable time, 
 but keeping and detaining the same from the plaintiff; may be joined in 
 one action, with a count in trover (A). So a count charging defendant 
 with having preferred a charge of felony against plaintiff before a magis- 
 trate, and having under a warrant to search the plaintiff's house for stol- 
 en goods, obtained upon such charge, entered the plaintiff's house, may be 
 joined with counts strictly in case (t)(3). So in replevin the plaintiff 
 r *201 J niay in the same *declaration, count on several takings on different days, 
 and at different places in the same county (A). And the plaintiff may, 
 in a declaration in trespass, unite a count for the battery or seduction of 
 his servant, per quod servitum amisit (J), with a count for battery of the 
 plaintiff himself (m), or quare clausum f regit (n), or trespass and res- 
 cue (o) (4) ; and all these counts might be included in one declaration, 
 though the loss of service, and the consequences of the rescue, might be 
 made the subjects of an action on the case(p). However, if these inju- 
 ries be joined with a count in trespass, then each should be stated to have 
 been committed vi et armis. 
 
 But in order to prevent the confusion which might ensue if different 
 forms of actions, requiring different pleas and different judgments, and of a 
 different nature, were allowed to be joined in one action, it is a general 
 rule, that actions in form ex contractu cannot be joined with those in form 
 
 (d) 4T. B. 229; 3 t!. R. 103; 2 Vin. Ab. {I) Aleyn, 9; Bac. Ab. Actions in General, 
 44, pi. 49. C. ; 3 Wils. 18; Heath's Max. 7; 2 AL & Sel. 
 
 (e) 2 Saund. 117 b; 8 Co. 87 b; 2 Vin. Ab. 436; 2 New. Rep. 476. 
 
 38, &e.; Heath's Max. 7. (m) 3 Campb. 256. in notes, 2 M. & Sel 
 
 (/) Id. ibid; 1 T. B. 277; 3 Wils. 348. 436. 
 
 (ff) See ante, 135. (n) 2 New Rep. 476; 2 M. & Sel. 436. 
 
 (A) Supra, note (/);2Saund. 117 b. (o) 2 Lutw. 1249; Lord Raym. 83; Tidd. 
 
 (i) Hensworth v. Fowkes, 1 N. & M. 321. 9th ed. 11. 
 
 (k) Fitz. N. B. 68, n. a; Bui. N. P. 54; 2 (p) See ante, 134, 138; 2 Sannd. 117 e. 
 
 Vin. Ab. 41. and notes. 
 
 (1) Trespass lies for damage feasant and may be joined with a count for rescue or pound 
 breach. Baker v. Dumbolton, 10 Johns. 240. 
 
 A count in trespass at common law, may be joined with a count on thie statute for the same 
 injury, where the statute gives an action of trespass. Prescott v. Tufts, 4 Mass. 146, although, 
 the statute gives double damages. Fairfield v. Burt, 11 Pick. 244; Worster v. Canal Bridge, 
 16 Pick. 541. But see Whipple v. Fuller, 11 Conn. 582. Counts for trespass quare clauaum 
 and dc ionis asporiaiis may be joined. Parker 17. Parker, 17 Pick. 236; Bishop v. Baker, 19 
 Pick. 517. 
 
 (2) Ayerr. Bartlett, 9 Pick. 156, 161; Horsely v. Branch, 1 Humph. 199. _ A Count m 
 trover cannot be joined with a count in trespass. Crenshaw v. Moore, 10 Geor^a, 384. Nor 
 can a count in crse be joined with trespass. Sheppard 11. Fumiss, 19 Alabama, 760. 
 
 (3) See 16 Serg. & Bawle 376, el aeq. Slander and malicious prosecution may be joined. 
 Milos V. Oldfield, 4 Yates, 427. Counts for malicious suits brought by the defendant, one in his 
 own name and one in the name of a third person may be joined. Pierce v. Thompson, 6 Pick. 
 197. 
 
 (4) Ace. Baker v. Dumbolton, 10 Johns. 240. Counts in trespass quare clavxwnl, and for 
 assault and battery may be joined. Arnold v. Maudlin, 6 Blackf. 187. 
 
OP JOINDER OP ACTIONS, 201 
 
 ex delicto {q). Thus assumpsit caunot be joined with case (r) (1), or o»'o«n>a» 
 trover(s), nor trover with detiuue (0(2), &c. _ oiaoiwm/ 
 
 And, with the above exceptions, counts in one species of action cannot 
 be joined with counts in another. Thus assumpsit, covenant (3), debt or 
 account, cannot be joined with each other (m) ; nor trespass with case (4), 
 for they are actions of distinct natures, and the judgments are different, 
 that in trespass being in strictness quod capiatur, and that in case quod 
 sit in misericordia {x); and neither trespass nor case could be joined 
 with replevin or detinue, nor can the two latter forms of action be united 
 in a suit. In criminal proceedings, the joinder of different offences of the 
 same degree in an indictment does not reader the proceedings defective ; 
 though.it is a matter of discretion in the Court on motion to quash an in- 
 dictment so framed (j'). 
 
 Where the same form of action may be adopted for several distinct in- Sdly, 
 juries, the plaintiff may in general proceed forall in one action, though the '"'"' 
 several rights affected were derived from different titles ; but a person can- TiguTot 
 not in the same action join a demand in Ids own right, and a demand as action or 
 representative of another, or autre droit ; nor demands aginst a person l^'^Mihes. 
 on his own liability, *and on his liability in his representative capacity (z). [ *202 ] 
 The points which usually occur in practice may be considered as they 
 arise in actions, 1st, by and against partners ; 2dly, husband and wife ; 
 3dly the assignees of a bankrupt ; 4thly, executors, &o. 
 
 In actions by and against several persons, whether ex contractu or ex ist. Part- 
 delicto, all the causes of action must be stated to be joint (5). Thus a ''^''• 
 
 (q) The only exception seems to be debt {t) Willes, 118. 
 
 and detinue, ante, 200. But it is doubtful (u) Bac. Ab. Action in General, C. 
 
 whether detinue is to be ranked as an action (x) 1 Lord Eaym. 272, 273; 2 Saund. 117e; 
 
 ex delicto, ante, 121; and whether it can be 117 c. note (c), 5th edit, 
 
 joined with debt unless the count in detinue (i/) 8 East, 46, 47; 3 T. R. 103; 1 Chit, 
 
 be founded on contract, ante, 200, note (6). Crim. L. 252 to 255; 7 & 8 Geo. 4, c. 28, s. 48 . 
 
 (r) 6 B. & C. 268. (z) Bac. Ab. Actions in General, C. ; 2 Via. 
 
 (s) 2 Saund. 117 c. ; 6 East, 335; 2 Chit. E. Ab. 62; Com. Pig. Actions, G. 
 843. 
 
 Joinder of 
 several 
 
 (1) Ace. Stoyel v. Wcstcott, 2 Day, 418; Wilson v. Marsh, 1 Johns. 503; Church v. Munt- 
 ford, 11 Johns. 480; Creel v. Brown, 1 Eobinson, 260; Hitt v. Lippitt, Geo. Decis, 89; Rodley 
 V. Roop, 6Blackf. 158; Etchison v. Post, 5 Blaokf. 140; Tucker u. Gordon, 2 Brevard, 136, 
 Copeland v. Flowers, 21 Alabama, 472. Bat see Hallock v. Powell, 2 Caines, 216. Contra. 
 Where a declaration contained several counts, in each of which the gravamen stated was a tor- 
 tious breach of the defendant's duty as an attorney, as well as of the implied promise arising from 
 an employment for hire ; It was held that each count contained allegations sufficient to support 
 it, either in tori or assumpsit, they were not incompatible, and might be joined in the same deol*- 
 ration. Church v. Mamford, 11 Johns. 479. See alsp Jones v. Conoway, 4 Yeates, 109. 
 
 (2) Hood V. Banning, 4 Dana, 21. 
 
 (3) Pell D. Lovett, 19 Wend. 516. But see s . c. 22 Wendell, 369. 
 
 (4) Cooper «. Bissell, 16 Johns. 146, in which case trespass vi et armis being joined with 
 trover, the misjoinder was taken advantage of by writ of error. But although trespass and 
 trover cannot be joined, yet a complaint of an injury arising partly from a breach of contract, 
 
 and partly of misfeasance, to which the plea is not guilty, may be joined with trover. Smith v. 
 
 Rutherford, 2 Serg. & Rawle, 358. 
 
 (5) Moose ». Platte County, 8 Missouri, 467; Mo'Kee D.Kent, 24 Miss. 131. But if two part- 
 ners agree to divide an account, against a joint debtor, equally between them, and the debtor 
 consents to it, and expressly promises to pay one of the partners his moiety of the debt, the part- 
 ner to whom the promise was made may maintain an action for his half of the account. Blair 
 V. Snover, 5 Halst. 153. See also Austin v. Walsh, 2 Mass. 401. And where three persons by 
 bond, covenant, or note, jointly and severally contract as joint or several at his_ election, and 
 may join all in the same action, or sue each one severally; but he cannot after suing one alone, 
 and recovering judgment, sue the other two jointly, having by the first action eleote4 to treat 
 the contract as several respecting all. Bangor Bank v, Treat. 6 Greenl. 207. 
 
 Vol. I. 30 
 
202 OP JOINDER OP ACTIONS. 
 
 ov JOINDER plaintiff caDnot, in a declaration against two defendants, state that one of 
 OTAciioMs. tijem- assaulted him, and in another part that the other assaulted him, or 
 took his goods, for the trespasses are of several natures, and against 
 several persons, and they cannot plead to this declaration (a). Neither 
 can the plaintiff in trover recover against several defendants for several 
 conversions of the same goods; in order to fix all the defendants, he 
 must prove a joint conversion by all, and if the evidence show separate 
 conversions, he must take his verdict, against those defendants only who 
 were parties to some one conversion, and all the other defendants must be 
 found not guilty (6) (1). But in the case of a survivor of several con- 
 tracting parties a demand by or against him as survivor, may be joined 
 with a demand due to or from the party in his own right (c) 
 (2), and, subject only to a plea in abatement, counts upon a promise by 
 the defendant, and another since become a bankrupt and certificated, may 
 be joined in separate actions against the solvent partner alone, with counts 
 on promises made by the defendant solely, since the othdr became a bank- 
 rupt Qd). 
 
 2dly. Hus- We have already fully considered the various instances in which a hus- 
 band and j^.^^^ and Wife ought to sue or be sued jointly or separately in an action ex 
 contractu or ex delicto (e). It will be sufficient here to observe, that when 
 the wife is co-plaintiff in an action ex contractu, no cause of action can be 
 included, unless it be founded on a contract with a feme before marriage, 
 or she be the meritorious cause of action ; and her interest must ex- 
 pressly appear on the face of every count (/) (3), And in an action in 
 form ex delicto for a personal injury, if the wife be joined, the declara^ 
 tion must proceed only for torts to her individually, and not for such wrongs 
 as only affect the husband (g-) (4). 
 
 8dly. Ab- We have also before partially noticed what demands may be joined in 
 signees of an action at the suit of the assignees of a bankrupt (/i). And we *remem- 
 r^*on^ ■ bcr, that counts on causes of action accruing to the assignees after the bank- 
 L ^^" 1 ruptcy, may be joined with counts upon causes of action which accrued to . 
 the bankrupt before his bankruptcy, whenever the former causes of action 
 arose upon transactions with the assignees in their representative character, 
 and the money recovered thereon would be assets in their hands in such 
 capacity (/c). If there have been any promise to the assignees or cause of ac- 
 tion since the act of bankruptcy, care must be taken to insert some count 
 
 (0) 2 Saund. 117 a; Sty. 153, 154; 4 T. contractu, ante, 57; and ex delicto, ante, 92. 
 B. 860. (/ ) Ante, 28, 29. The declaration must 
 
 (6) IM. & Sel. 588. not contain a count on the promise of the hus- 
 
 (c) 1 B. & Aid. 29; 2 Chit. Kep. 436; 3 T. band and wife after marriage even to pay her 
 B. 433; 6 Id. 493; 6 Id. 582; 1 Esp. Rep. debt contracted rfum so/a, 1 Taunt. 212; ante, 
 47. 57. 
 
 (d) 6 Taunt. 179. (g) AnU, 72, 73. 
 (c) As plaintiffs ex contractu, ante 29; (/i) .5?iie, 24. 
 
 and ex delicto, ante, 72, As defendants ex (/c) Ante, 25. 
 
 (1) See Chamberlin v. Shaw, 18 Pick. 278; Strickland v. Barrett, 20 ib. 415; Lockwood v. 
 Bull, 1 Cowen, 322. 
 
 (2) Davis V. Church, 1 Watts & Serg. 240. Counts on demand due the plaintiff, as surviving 
 member of different firms, may be joined. Stafford d. Gold, 9 Pick. 533. 
 
 (8) Vide Staley v. Barhite, 2 Caincs, 221. A count on a promise by a husband and wife can- 
 not be joined with a count on a promise by the wife while sole. Edwards v. Davis, 16 Johns. 
 281. 
 
 (4) So, slander of husband and wife cannot be joined in the same action. Ebersol v. Knig, ? 
 Binn. 555. 
 
OP JOINDER OF ACTIONS. 203 
 
 in the declaration adapted to such demand; and where two partners became of joindkb 
 bankrupts at different times, and the defendant between the two acts of bank- "'' '*■'"""'*• 
 ruptcy illegally received money, and the assignees of the two partners, in 
 their action to recover it, declared only for money had and received to the 
 use of the two partners, before they became bankrupts, and in another 
 count for money had and received to the use of the plaintiffs as assignees, 
 it was decided that the plaintiffs could not recover, because they should 
 have declared in one count for money had and received to the use of the 
 partner who last became bankrupt, and of the plaintiffs as assignees (/). 
 
 It is now a well settled rule, in actions by a plaintiff who is an executor 4tUy. Ex- 
 or administrator, that ivhere the money, when recovered, would be assets, ^"*°''^' 
 the executor may declare for it in his representative character ; and that "' 
 the best line to adopt in determining whether counts may be joined, is to 
 consider whether the sum, when recovered, would be assets (ni). It is 
 therefore clear, that an executor or administrator may declare as such, for 
 goods sold or money paid by him in that character, and may join such 
 count with counts on promises to the testator or intestate (w) (1). So 
 money had and received by the defendant to the use of the plaintiff as ex- 
 ecutor (o), and an account stated with him as executor, for monies due 
 and owing to the testator (p), or to the plaintiff as executor, or to the 
 plaintiff and his wife as executrix (g), may be joined (2) with counts on 
 promises to the testator or intestate ; and as an executor may, under cir- 
 cumstances, lend money, it should seem that the insertion of a count for 
 money lent by him as such would not be misjoinder (r). And counts on 
 promises made to an intestate may be joined with counts on promissory 
 notes given to the plaintiff as administrator since the death of the intestate, 
 (s). And where the plaintiff declared as executor upon a bill of ex- 
 change "indorsed to him in that character, it was holden sufficient (/). It [ *204 ] 
 should, however, be observed, that where the transaction takes place after 
 the death of the testator, the executor has the option of declaring in his 
 private character (m). 
 But an executor cannot include counts on causes of action accruing to 
 • him in his private right and individual character, with counts on causes of 
 action which are laid to have been vested in him in his representative 
 capacity (a;) (3), and cannot join a count upon a bond given to his testator, 
 
 (0 3 B. & p. 465. 487; 1 Taunt. 322 ; 2 Marsh. 147. 
 
 (,m) 6 East, 405; 2 Saund. 117 d, and (5) 6 East, 405, 406; 1 Taunt. 322; 2 
 
 notes, 5th edit.; 1 Taunt. 832; 2 Marsh, 147 ; Marsh. 147, ac. ; 1 Ld. Raym. 437; 2 Saund. 
 
 6Taunt. 453, S. 0.; 2 Smith's Rep. 416, per 117 d, semble cont. 
 
 Le Blanc, J.; Tidd, 9th edit., 12, 13; 9 B. & (r) 3 B. & Aid. 360. 
 
 C. 666. ' (s) 5 Price, 412; 7 lb. 591 ; 1 B. & C. 150. 
 
 (n) 3 East, 104; 6 East, 405. (t) 1 T. R. 487; 7 East, 410, 413; 2 Vin. 
 
 (0) 3 T. R. 659; see 5 M. & Sel. 294; Tidd, Ab. 48. pi. 9. 
 
 9th edit. 12. (u) See 2 Bing. 177; 9 Moore, 340, Si C. 
 
 (p) 5 East, 150; 6 East, 403, 406; 1 T. R. (x) 2 Saund. 117 0. 
 
 (1) See Hapgood v. Houghton, 10 Pick. 154; Stevens o. Gregg, 10 Serg. & R. 234; Sebring 
 V. Keith, 2 Bailey, 192; Peries v. Ayeinena, 3 Watts & Serg. 64; Lowe o. Bowman, 5 Blackf. 
 410; Boyle v. Townes, 9 Leigh, 158; Lea v. Hopkins, 7 Barr, 385. 
 
 (2) In assumpsit by an administrator de bonis non, a count alleging a promise to bavB been 
 made to the first administrator, may be joined with counts alleging a promise to the plaintiff's 
 intestate, and a promise to the plaintiff. Sullivan v. Holker, 15 Mass. 374. Sea Clark v. Lamb, 
 6 Pick. 512; See also Hirst v. Smith, 7 Term, 182; Fay v. Evans, 8 Wend. 530. 
 
 (3) But see French v. Merrill, 6 New Hamp. 465, Counts by or against an executor or ad- 
 ministrator cannot be joined with counts by or against him in his own right. Mason 0. Nor- 
 cross, Coxe, 252; Epes v. Dudley, 5 Rand. 437; Grahame v. Harris, 5 Gill & Johns. 489; Yates 
 V. Kimmell, 6 Missouri, 87; Jefford v. Ringgold, 6 Alabama, 544; Brown v. Webber, 6 Cueh*. 
 ing, 660; Kennedy v. Stallworth, 18 Alabama, 268. 
 
204 01* JOINDER OP ACTIONS 
 
 Of joiNDBB and a count upon a bond given tp him as executor, in the same action {y); 
 
 OFAOiions. fg^ j^^Q executor, by taking the bond, would extinguish the original debt, 
 and it would not, when recovered, be assets (s). Where six years have 
 elapsed since the death of the testator or intestate, or it may on any 
 other account be material for the plaintiff to avail himself of a promise or 
 acknowledgment since the death, counts should be introduced in the dec- 
 laration, on promises to the executor in that character (a) ; for otherwise 
 such promise or acknowledgment cannot be given in evidence (6) (1). In. 
 every count stating a debt or promise to the executor or administrator in 
 that character, the word " as " executor, &c. must be inserted (c). It is 
 not enough to say that it accrued to him, " executor, or being executor as 
 aforesaid ; " but it must be averred that it accrued to him " as executor." 
 However, great care should be taken not to introduce unnecessarily, in a 
 declaration by an executor on a cause of action accruing to the testator, 
 counts on causes of action alleged to have accrued after the testator's 
 death ; for although an executor,"wecessari7j/ suing as such, is exempt from 
 liability to the defendant's costs, if the action fail, by reason of the wording 
 of the statute, which gives costs to the plaintiffs (d~) : yet, where an exec- 
 utor might declare in his private character, as for money had and re- 
 ceived after the testator's death, or upon an account stated with him as 
 such, concerning money due to him as executor, &c. (e) ; or even, it 
 seems, if the account stated be alleged to relate to money due to the tes- 
 tator ; the executor has no privilege as to costs (2). 
 
 So in the action against an executor, a count cannot be introduced 
 which would charge him personally; for the judgment in the one case 
 ['•205 ] *would be de bonis testatoris, and in the other de bonis propriis (/) (3). 
 Therefore a count for money lent to, or had and received by, an exe- 
 cutor as such, is not sustainable (g) (4). And a count in assumpsit 
 against husband and wife, who was administratrix with the will annexed, 
 
 («) 3 B & p. Sed vide 1 T. B. 487; 6 (d) See 9 B. & C. 668 j Tidd, 9th ed- 978. 
 
 East. 405. (c) 8 Moore, 146; 9 B. & C. 666; Tidd, 
 
 («) 5 Price, 412; 7 Id. 591; 6 Taunt. 457. 9tlied. 978. 
 
 (a) See the forms, porf, vol. ii.; and the (/) 2 Saund. 117 e. But of late ooijntsfor 
 
 consequences as to costs, 5 Tyr. 822. funeral charges against the executor in that 
 
 (6) 8 East, 409; Willes, 29; 2 D. & R, character have succeeded, see 8 Campb. 298, 
 
 363; 1 B. & C. 248, S. C; 1 B. & Aid. 93 ; sed quiere. 
 
 3 7ii. 626; 5 Moore, 105, 508; 6 Taunt. 210, (g) 2 Saund. 117 e; 4 T. B. 437; 1 Hen. 
 
 (c) 5 East, 150; 2 Marsh. 151; 8 Saund. Bla. 108; 7 B. & C, 444; 1 M. & R. 102, 
 
 117 d, e, note. But see 2 Lev. 110; 2 Vin. S. C, 
 Ab.'.47,pl. 6, 48, pi. 9; 2 B. & P. 424- 
 
 (1) Ace. Jones v. Moore, 5Binn. 578. 
 
 (2) In Pennsylvania, an executor plaintiff is bound to pay costs to the defendant, in case of 
 nOhsuit, or verdict for the defendant, as well where he necessarily sues in his representative 
 character, as where the cause of action arises after the death of the testator. Muntorf v. Mun- 
 torf, 2 Bawle, 180, 
 
 (3) See Bachelor v. Fisk, 17 Mass. 464; Kayser v. Disher, 9 Leigh, 857. And the declara- 
 tion containing a count on a promise by the defendant's testator, and a count on a promise by 
 the defendants as executors as aforesaid, for work and labor done at their request, is bad on 
 
 general demurrer. Myer v. Cole, 12 Johns. 849. Demott v. Field, 7 Cow. 58. But a count on 
 a promise by an executor or administrator, as such, and in which he is not charged as person^ 
 ally liable, may be joined with a count on a promise by the deceased. Carter v. Phelps, 8 Johns 
 440; Malin ». Bull, 13 Serg. & B, 441; M'Einley v. Call, 1 Monroe, 54; Howard v. Powers, 
 6 Ohio, 93. See Myer v. Cole, 12 Johns. 349; Reynolds v. Reynolds, 3 Wendell, 244; Bishop 
 v. Harrison, 2 Leigh, 539. 
 
 (4) Sibbitt V. Lloyd, 6 Halst. 168. Myer v. Cole, 12 Johns. 849. Demott v. Field, 7 Cowen, 
 68. It was held that an administrator or executor may join in the same declaration counts on 
 the promised to himself, with counts on promises to the intestate or testator. Fry v. Evans, 
 8 Wend. 680. 
 
OF JOMDEE OP ACTIONS. 205 
 
 upon promises by the testator to pay rent, cannot be joined with counts <>» jotndeb 
 upon promises by the husband and wife as administratrix, for the use and oc- "'' a™^""'- 
 cupation by them after the death of the testator (Ji). But in an action of 
 covenant against an executor, on the deed of the -testator, the plaintiff may 
 join a breach by the testator, and a breach since his decease (i). So an 
 account stated by the defendant as executor, of monies due from the testa- 
 tor, may be supported, and may be joined with counts upon promises by 
 the testator ; and this is the common mode of declaring against executors 
 and administrators, to- save the statute of limitations (k) ; and a count 
 upon an account stated by an executor as such, of monies due and owing 
 from him in that character, may be joined with counts on promises by the 
 testator, as such account stated does not make the executor personally lia- 
 ble (J,) (1). Perhaps a count for money paid for the defendant as execu- 
 tor may be joined with counts on promises by the testator (m). Whenever 
 an executor, &c. is sued upon promises by him in that character, the 
 words " as executor," &c. must be inserted in each count in stating the 
 promise, and also in stating the debt or cause of action, if it be laid to 
 have accrued after the testator's death (n). 
 
 The consequences of a misjoinder are more important than the circum- Sdly. Con- 
 stances of a particular count being defective ; for in the case of a misjoin- s|q"?°<'?'^ 
 der, however perfect the counts may respectively be in themselves, the dec- der. 
 laration will be bad on a general demurrer (3), or in arrest of judgment, 
 or upon error (o) (3) ; and if on a writ of error one of several counts in a 
 
 (ft) 8 B. & Aid. 101. East, 313. Sed vide 1 Hen. Bla. 108, 114; 2 
 
 (i) 10 East 813. Sannd. 117 d; 2 B. & P. 424. 
 
 (k) 2 Saund. 117 e; 1 Hen. Bla. 102; For- (m) 7 B. & C. 444. 
 
 rest's Rep. Exchequer, 98. Where an actual (Vi) 2 B. & P. 424; anfe, 203i 
 account has not been stated by the defendant (o) 2 Chit. R. 697; 2 B, & P. 424; 4 T. R. 
 
 as executor, add counts, as j)os/, -vol. ii. Counts 347, 1 Hen. Bla. 108; 1 Taunt: 212. See in 
 
 on promises by the defendant as executor, general as to the consequences of mis-joinder 
 
 should always be inserted, if he has admitted or nonjoinder of parties, whether plaintiffs or 
 
 the debt, or promised payment. defendants, ante, 13, 45, 66, and 86. Of hus- 
 
 {I) 7 Taunt. 580; 1 Moore, 805, S C; For- band and wife, anU, 82, 59, 75, and 93. 
 rest's Rep. Exch. 98; 6 East, 405 to 412; 10 
 
 (1) Collins V. Weiser, 12 Serg. & Rawle, 97; Malin ti. Bull, 12 Serg. & Rawle; 443; Vaughn 
 V. Gardner, 7 B. Monroe, 326. See the observations of Mr. Chitty in the fourth edition. It has 
 been held that a declaration stating that the defendant's testator being so indebted to the plain- 
 tiff, in a certain sum for money lent and advanced, and that the testator being so indebted in 
 his life-time, the defendant, afterwards as such executor, after the death of the testator, prom- 
 ised, &o. was good. And Spbnoee, J., in delivering the opinion of the court, says, " The 
 counsel seemed to suppose that the judgment on this count would be de bonis propriis, and that 
 the executor would in this mode of declaring, be prevented from pleading plene adminisiravit. 
 If such ■would be the consequence then I should hold the objection to be valid ; but according to 
 the cases of Secor •«. Atkinson, (1 H. Bl. 102), and of Executors of Hughes v. Hughes, 7 Bro. P. 
 C. 550, and 2 Saiind. 117, e. note 2), the judgment will be de bonis testatoris, and this mode of 
 declaring is adopted merely to save the statute of limitations ; consequently the defendant is not 
 prevented from making any defence under such a form of declaring, which he might have made, 
 had the declaration stated the promise of the testator, and his liability only." Whitaker o. Whit- 
 aker, 6 Johns. 112. And promises by the defendant as executor or administrator, as well as by 
 his testator or intestate, to pay for work and labor done for, or goods sold and delivered to the 
 intestate, may be joined in the same declaration, and a count charging a promise by the testator 
 or intestate in his life-time, and after his death, by the defendant, his executor, or administra' 
 tor, as aforesaid, is good. Carter v. Phelps, 8 Johns. 440. A declaration by a plaintiff as ad- 
 ministrator, containing counts for goods sold, work done, and the common money counts, with- 
 out stating any indebtedness to the intestate or referring to the plaintiff, in his representative 
 character in any subsequent part of the declaration except in a profert of letters of administra- 
 tion, is bad on demurrer. Christopher i>. Stockholm, 5 Wend. 36; Vide 2 Leigh, 285. 
 
 (2) SeePeabodyi). Washington Ins. Co. 20 Barbour, 339; Williams ». firadbury, 9 Texas, 
 487. 
 
 (3) Cooper v. Bissell, 16 Johns. 146 ; Pell v. Levett, 19 Wendell, 546. But see S. C. 22 Wend- 
 ell, 869; Rodley 1). Koop, 6 Blaokf. 158; Pharr v. Bachelor, 3 Ala. 237; Whitney v. Crim, 1 
 Hill, 61; West»> Stanley, 1 Hill, 69; The Governor v. Bvans; 1 Pike, (Ark.) 349. 
 
206 OP JOINDEB OP ACTIONS. 
 
 or JOINDER declaration in assumpsit be bad, and the defendant below suffer judgment 
 oFAOTioNs. i^y. default, and the damagss be assessed generally on the whole declara- 
 tion, such judgment must be reversed (^p). A demurrer for misjoinder 
 [ *206 ] must be to the whole declaration, and not *merely to the defective count 
 or breach (9). The plaintiff cannot, if the declaration be demurred to, 
 aid the mistake by entering a nolle prosequi, so as to prevent the operation 
 of the demurrer for misjoinder (r) (1) : though the Court will in general 
 give the plaintiff leave to amend by striking out some of the counts on 
 payment of costs (s). In some cases, however, a misjoinder may be aid- 
 ed by intendment after verdict (<). And by taking separate damages, 
 or by entering a remiltitur damna, the misjoinder may be aided (m) ; and 
 though it is reported to have been decided that if assumpsit and trover, 
 be joined, and there be a verdict for the defendant on the count in trover, 
 that does not cure the declaration (x), such doctrine is now overruled 
 (JJ-) (2). 
 
 [*207] *0F THE ELECTION OP ACTIONS (3); 
 
 OF ELEo- In considering the application of eadh particular action, we have seen 
 iioMsr"^"' *^^* *^® party injured frequently has an election of several remedies for 
 the same injury (a). As the due exercise of this election is of great im- 
 portance, it may be useful Concisely to state the principal points which, 
 direct the choice of several remedies. And these may be with reference 
 to, 1st, the nature of the plaintiff's right or interest in the matter affec- 
 ted ; 2dly, the security of bail, and the process ; 3dly, the number of the 
 parties to the action ; 4thly, the number of the causes of action, and the 
 pinder thereof in one suit ; 5thly, the nature of the defence, and whether 
 it be advisable to compel the defendant to plead specially ; 6thly, the 
 venue, or place of trial ; Tthly, the evidence to be adduced by the plain- 
 tiff or defendant; 8thly, the costs; and, 9thly, the judgment and extcvr 
 tion. 
 1st. Nature Ist, A strict legal title is essential to the support of some remedies, but 
 plaintiff's ^'^ Others the plaintiff's bare possession of the property affected is suffi- 
 intercst in cient. Where the title of the plaintiff may be doubtful, it is in general 
 matter af- advisable to adopt the latter description of remedy. Thus an action of 
 ®°'* • trespass to real property may be supported against a stranger by any 
 person in the actual possession, though he have no title ; but in ejectment 
 the lessor of the plaintiff must in general recover on the strength of his 
 
 (p) 1 Moore, 126. (u) 2 M. & Sel. 533; 11 Mod. 196; 2 Vin. 
 
 (?) 1 M. & Sel. 355. 366. Ab. 48, pi. 9; 3 T. R. 433. 
 
 (r) 1 Hem Bla. 110, 111, 113, 114; 4 T. (i) See 2 Saund. 117 c. 
 
 B. 360; Tidd, 9th edit. 681; 1 Saund. 207 c. (y) 2 M. &. Sel. 538. 
 
 (s) 4 T. R.,848. (ffi) Com. Dig. Actions, M.; Styles, 4; Co. 
 
 (i ) 2 Lev. 110; Com. Dig. Action, G. ; 2 Vin. Lit. 145 a ; 2 Bla. Rep. 1 1 12. 
 Ab. 47, pi. 7. 
 
 (1) The defendant can avail himself of the misjoinder only by demurring to the whole declar- 
 ation; he cannot plead to one count and demur to the other. Smith 11. Merwin, 15 Wend. 184. 
 
 (2) Hut see Lusk v. Hastings, 19 Wend. 627. 
 
 (3) Por oases in which an election of action may be made, Seel Met. &Perk. Dig.pp. 61^62; 
 Tit. Actions, cb. 4. 
 
OP THE ELECTION OP ACTIONS. 207 
 
 own legal title (&) : and may be defeated even if an outstanding term in of eleo- 
 a trustee be shown unless it can be presumed that such term has been "o^^ <"' 
 satisfied, &c. Therefore, where the title of the party injured is doubtful, ^°™''^- 
 the action of trespass should sometimes bo chosen ; and' as the defendant 
 in_ replevin for a distress taken damage feasant, must in his avowry or 
 cognizance state, and if denied, must prove a title to the locvs in quo, in 
 fee or tail, in himself or some person from whom he derives his title, an 
 action of trespass is preferable to a distress, *where the title of the occu- [ *208 J 
 pier of the land may be doubtful (c). On the other hand, where the 
 party interested can clearly establish a title in himself or in his trustee, 
 and yet it may be doubtful in which particular person the legal title may 
 be vested, a distress, or an action of ejectment where there has been an 
 ouster, may be advisable, because in replevin brought for the distress, 
 there may be several avowries upon different titles, and in ejectment there 
 may be several counts on demises by different parties. In some cases we 
 have seen that where the property of a person has been taken away or . 
 withheld from him, he may waive the tort and sue in assumpsit for the 
 value (d) ; but as bare possession is suf&cient in general to sustain an ac- 
 tion of trover or trespass against a wrong-doer (e) ; it may often be bet- 
 ter to adopt one of those forms of action than to sue in assumpsit for 
 money had and received, 'as in the latter form of action a stricter right 
 to the goods or the proceeds might be required (/). So, where an inju- 
 ry is done to a messuage or land, it may often be better to sue in the name 
 of the tenant than in the name of the landlord as reversioner (§■), be- 
 cause in the latter form of action strict proof of the letting and reversion- 
 ary interest is indispensable (Ji), 
 
 Secondly, In actions in form ex delicto, as in case, trover, detinue, and 2diy. BaU 
 trespass, the defendant cannot be arrested without a special order of the and pro- 
 Court or a judge, and it is not usual to grant such order, except where ^^^'■. 
 there has been an outrageous battery, or the defendant is about to quit the 
 kingdom (i) ; and therefore in cases where it may be material to have 
 the security of bail, the action should, if possible, be framed in assump- 
 sit for money had and received, &c., adding such other special counts as 
 may be advisable under the circumstances of each particular case (Jc). 
 Where, however, the defendant has been already arrested, the form of 
 action must correspond with the affidavit to hold to bail and the form of 
 action stated in the capias, or other process ; for otherwise the defendant 
 will be entitled to his discharge out of custody on filing common bail (V). 
 But this will be the only consequence, for the Court will not on this ac- . 
 count set aside the proceedings (1) against the defendant for irregulari- 
 ty (m). 
 
 Thirdly, In an action in form ex contractu, we have seen that if a per- s^jy ^he 
 son who ought to be made co-plaintiff be omitted, it is a ground of non- number of 
 
 the parties, 
 
 (6) 1 East, 244, 246. See, howerer, ante, (i) Midd, 9th edit. 172. See Petersdorff 
 
 189. ori Bail , 40, 41 , as to the expediency of adopt- 
 
 (e) 1 Saund. 341 e, n. 2; Willes, 221. ing particular forms of action in order to ob- 
 
 (d) Jlnle, 100. tain bail. 
 
 (e) Ante, 61, 152, 154. (fr) 3 East, 70. 
 
 (/) B. & C. 418, ' (0 7 T. E. 80; 8. T. B. 27; 5 T. K. 402; 2 
 
 (g) See a»7/^rtl39, 140. East, 305; 1 Hen. Bla. 310. 
 
 \h) See 4 B. & C. 465. (m) 6 T. B. 363, 
 
 (1) Contra Rogers v. Bogers, 4 Johns. 486, 
 
•209 OP THE ELECTION OP ACTIONS. 
 
 orEiEo- suit, &c. (w) except in the case of executors or administrators (o), 
 TioNOTAc-^[jgj.gj^s in actions in form ex delicto, the nonjoinder of a party who 
 "'"'*' should liave been a co-plaintiff, can only be pleaded in abatement (p)\ 
 *and consequently the latter form of action, if it can be adopted, is in 
 many instances preferable, where there is reason to doubt who should be 
 joined as a plaintiff. We have also seen that a joinder of too many de- 
 fendants in an action in form ex contractu is a ground of nonsuit (5); and 
 that the omission of a person who ought to be made a defendant may be 
 pleaded in abatement (r); but that in actions in form ex delicto the omis- 
 sion of a party jointly concerned in committing the injury cannot in gene- 
 ral be pleaded in abatement, and that when the injury may in point of 
 law have been committed by several, the joinder of too many defendants 
 will be no ground of objections (s) ; and therefore, where it may be 
 doubtful how many persons should be made defendants, it is advisable to 
 declare in case, in preference to an action of assumpsit (<). So, a dis- 
 . tress for a rent charge is frequently preferable to an action, because in 
 the latter all the pernors of the estate charged with the payment must bo 
 joined (li) (1). 
 4thly. The Fourthly, Where the plaintiff has several demands of a similar kind, 
 the^causes ^^''overable in different forms of action, he frequently may, and then he 
 of actions, ought to proceed for the whole in that form oT action which will embrace 
 his various claims (a;). Thus a party may declare specially against a 
 bailee for neglect, either in assumpsit or in case ; if he have also a money 
 demand against the bailee, due on simple contract, he should declare for 
 both causes of action in assumpsit ; but if, instead of the money demand, 
 he have a distinct cause of action in trover, the declaration should be in 
 case, with a count in trover, in order to avoid the expense of two actions, 
 («/). So, for a money demand due on a simple contract, the plaintiff in 
 general has an option to declare either in assumpsit or debt ; if there be 
 also another demand of an unliquidated nature, founded on a simple con- 
 tract, it is then proper to declare in assumpsit for both causes of action ; but 
 if there be no unliquidated demand, or if part of the demand be due on spe- 
 cialty debt may be preferable. So, in an action against the assignees of a 
 bankrupt for rent, if it be doubtful whether they have accepted the lease, 
 although they have taken possession, it is advisable to declare in debt on 
 the lease, and add a count in debt for use and occupation. So debt on a 
 life policy,' with a count for money had and received, maybe preferable to 
 covenant; because, under the common count, the premium may in some 
 cases be claimed. And as debt and detinue may be joined («), the dec- 
 laration should be in those forms of action, where the defendant detains 
 the plaintiff 's goods, and also owes him a debt. 
 
 (») ^nte, 1?. 141; 8 Brod. & Bing, 54; 9 Price, 408; 3 
 
 (0) Ante, 19. The nonjoinder of an as- East, 62 to 70. 
 
 iignee of a bankrupt is no ground of nonsuit, {t) Id. ibid. ; 3 East, 62"to 70. 
 
 ante, 23. (u) Co. Lit. 162 b; 1 S'aund. 282, n. 1, 
 
 (p) Ante, 66. and 284, n. 3 & 4. 
 
 (q) Ante, it. (i) w4h(c, 198,201. 
 
 (r) Ante,iQ. (y) 8 East, 70. 
 
 (8) Ante, 66; Bretherton ti. Wood, 6 Moore, (2) Ante, 199, 500. 
 
 (1) By St. 1834, 0. 189, a plaintiff in an action founded on contract, brought against several 
 defendants, might discontinue as against one who had been de&ulted, and proceed against the 
 others. Turner v. Bissell, 14 Pick. 192. 
 
OP THE ELECTION OF ACTIONS. *210 
 
 * Fifthly, By a judicious choice of the remedy, the defendant may be fre- <"• ^^- 
 quently precluded from availing himself of a defence which he might oth- ^o°^o^J_ 
 erwise establish. Thus in assumpsit against a person, who has been a sdjiy •^^^ 
 bankrupt for money had and received by him before his bankruptcy, how- defence, 
 ever tortiously, his certificate would be sufficient bar, but by declaring in 
 case or trover, where the money was received tortiously, &c. ho will bo 
 deprived of such defence (a) (1). And where goods have been sold by 
 a person in contemplation of bankruptcy by way of fraudulent preference 
 to a creditor, the remedy by the assignee should be trover, and not as- 
 sumpsit as for goods sold and delivei-ed ; because, in the latter form of ac- 
 tion, the defendant might avail himself of the debt from the bankrupt as 
 a set-oflF(Z»). And in case of fraud, the statute of limitations may not begin 
 to run till the fraud is discovered, and therefore it would be sometimes ad- 
 visable to sue for the fraud, and waive the action of assumpsit. Thus, 
 where the defendant was guilty of fraud in not taking a sufficient security 
 on his investing plaintiff 's money, the plaintiff might waive the fraud, and 
 sue in assumpsit for not procuring sufficient security ; but if it be ap- 
 prehended that the defendant would in such action of assumpsit establish 
 a defence under the, statue of limitations, it would be better to declare in 
 case for the fraud, as the statute might then only run from the time the 
 fraud was discovered (c). The election of the form of action was also 
 frequently material, in order to compel the defendant either to take issue 
 upon some ^particular allegation in the declaration, instead of putting 
 the plaintiff to prove the whole of his case, or to compel the defendant to 
 state his ground of defence specially (<f). Thus in covenant for rent, the 
 defendant must plead to some particular allegation, and there is no gener- 
 al issue ; but in debt on a lease he might have pleaded nil debet, and 
 thereby compelled the plaintiff to prove the whole of his declaration (e). 
 So trespass was in general preferable to case, because in the latter, under 
 the general issue, the defendant might not only dispute the plaintiff's 
 statement of his cause of action, but also give in evidence most matters 
 of defence, but which he must have pleaded specially in trespass (/); 
 and detinue was in some cases preferable to trover, in order to compel the 
 defendant to plead his lien specially (§•). But the general pleading rules 
 of Hil. Term, 4 W. 4, requiring a special plea, in most cases have put an 
 end to many of the former grounds of preference. 
 
 Sixthly, In some cases there may be two or more actions in effect for 6thiy. The 
 the same injury, the one local, and the other transitory. Thus, *debt for '^^°"^' 
 rent, by the assignee or devisee of the lessor against the lessee, is local, [ *211 ] 
 and must be laid in the county where the estate lies (A); but in covenant, 
 at the suit of the same parties, upon an express covenant for the payment 
 of rent, &c. the venue is transitory (i) ; and consequently the latter form 
 
 (a) 6 T. R. 695; 1 Marsh. 184; ante, 144. (rf) Foit, tit. Pleas. 
 
 (A) 4 T. R, 211 ; 2 Hen. Bla. 135; ante, 144. («) Lord Rnym. 1500. 
 
 When not, see 10 East, 378, 418. (/) Ante, 144; post, tit. Pleas. 
 
 (e) 4 Moore, 502; 2 B. & B. 73, S. C; see (g) Ante, 124. 
 
 olso 3 B. & A. 288, 626; 2 B. & C. 153; 3 D. (A) 1 Saund. 238, 241; Sir W. Jones, 53. 
 
 & R. 326, S. C; Sed vide 5B. & C. 259; 8 (j) Id. ibid. 
 D. & R. 14, S. 0. 
 
 (1) Bat the plaintiff cannot by declaring specially, ex contractu, irben he may recover his de- 
 jnand under a general count, deprive the defendant of his set-o^. Powner v. Eggleston, 15 
 Wend. 61. 
 
 YoL. L 31 
 
211 op THE ELECTION OF ACTIONS. 
 
 oT BLEo- of action ehould be adopted, where it may be advisable to try the cause 
 
 HON OV 
 ACTIONS. 
 
 out of the couaty where the estate is situate, 
 
 7thiy. The Seventhly, The evidence must also be attended to in the election of ac- 
 evi enoe. ^JQjjg_ 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 (/c). 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 (Z). 
 And very often the form of action, by driving the defendant to plead 
 more specially, may narrow the plaintiff's evidence (m). 
 
 Sthly. Eighthly, In actions in form ex contractu, the plaintiff is in general en- 
 
 ^°^^^- V titled 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 as- 
 sumpsit, debt, detinue, or covenant (w); 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 pre- 
 ferable to an action of trespass against several defendants, because in tres- 
 pass, if one defendant was acquitted, he might obtain his costs, but which 
 he was not entitled to in an action on the case (;?). And as no fine was 
 paid upon issuing an original writ in covenant, that action was on that ac- 
 count 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 au 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, 
 
 tSn*"°"" ^""i execution may be issued immediately without the expense and delay 
 
 r »2i 2 1 of a writ of inquiry, which is usually necessary in assumpsit or covenant, 
 
 '- -^ in the case of judgment by default (g) ; 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). 
 
 (fe) 3 East, 600. (?) See Tidd. 9th edit. 986. 
 
 (l) Ante, 208. (9) Tidd, 9th edit. 573. But in many cases 
 
 (m) Ante, 210. the writ of inquiry is, it seems, necessary even 
 
 (n) Tidd, 9th edit. 963. in debt; as in debt for use and occupation, for 
 
 (0) 6 T. K. 129, 130; Tidd, 9th edit. 963. not setting out tithes, or for foreign money, 6 
 
 The judge may, in the latter actions, certify to B. & Aid. 885 ; Tidd, 9th edit. 528, Sed qucere. 
 
 take away coats; but this power is not often (r) Post,tol. ii. 
 
 exercised. (0 -dnte, 142, 189; 2 Stark. 288. 
 
 (1) See 1 Met. & Perk. Dig. Tit. Costs, ch. 4, p. 600, et acq. 
 
 (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 execuUon, unless bail in errpr be 
 put in. 2 Rev. Stat. 596, 8. 27, 28, 
 
OP THE ELBCtiON OF ACTIONS. 212 
 
 The circumstance of a party having elected one of several remedies by <>' emo- 
 action, will not in general preclude him from abandoning such suit, and fp°fo °' 
 after having duly discontinued it, he may adopt any other remedy. It jj^ggj ^j 
 seems that an action for rent may be supported, although a distress has eleotionj 
 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 ver- 
 dict ; 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 (m), 
 
 (0 1 Salk. 248; 1 £d. Raym. 719; 2 Chit. 856; Rex. i;. Sparrow, Tidd, 9th ed. 10, notd 
 Bep. 301; 1 B. & A. 167; 6 Moore, 542. (c) ; 1 M. & K. 278 b; see ante, 229. 
 
 (u) 2 T. R. 198; 1 Chit. Crim. Law, 855, 
 
[ *213 ] 
 
 ♦CHAPTER III. 
 
 OF PLEADING IN GENEEAL (a). 
 
 DEFINITION. 
 I. THE FACTS NECESSARY TO BE STATED. 
 II. THE MODES OF STATING SUCH FACTS, 
 til. THE RULES OF CONSTRUING PLEADINGS. 
 IV. THE DIVISION OF PLEADINGS. 
 
 bBtiHitioii 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 de- 
 fence ; 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 (6). 
 It is, as observed by Mr. Justice Buller (c), " one of the first prin- 
 ciples of pleading, that there is only occasion to state fads, which must 
 be done for the purpose of informing the Court whose duty it is to de- 
 clare 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 an- 
 swer 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- 
 
 (0) I forbear, in this practical treatise, to the recent third edit. (1). 
 
 observe upon the origin, antiquity, and histo- (4) Per Buller, J., 8T.E.159; Dougl.278; 
 
 ry of pleading, or to notice the many observa- and see the observations in Com. Dig. Pleader, 
 
 tions in the books upon its utility and value; A.; Bao. Ab. Pleas and Pleading, and the 
 
 upon this subject the reader may consult 3 judgment of Lord Chief Justice De Grey, io 
 
 Reeve's Hist. Com. Law, 424; Hale's Hist. Rex d. Home, Cowp. 682, 683, &c., as to the 
 
 Com. Law, 173 ; Mr. Lawes' Treatise on gensral nature and object of pleading. 
 
 Pleading, 1 to 83, and a tract intituled " A (c) Dougl. 166. 
 
 Summary of Pleading," 1 to 7; See also Lord (li) "An iss'M is, when both the parties join 
 
 Erskine's Speeches, vol. i. 276, &o., and the upon somewhat that they refer to a trial, to 
 
 ■valuable publication of Mr. Serjeant Stephen, make an end of the plea," (i. t. suit), Finch's 
 
 p. 144, 1st edit, and p. 157, 2d edit, to the Law, 896. 
 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 inTestl- 
 gation 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 Beeve's Hist E. L. 261, 
 267, 880. 844, 849; 2 Reeve's Hist. E. L. 69, 61, 423. 443, 461. 469. 
 
THE PACTS NECESSARY TO BE STATED. *214 
 
 jury or crime, that the defendant may know what injury or crime it is *™ »sw- 
 which he is called upon to answer, that the jury may appear to be war- '•™°"' 
 ranted in their conclusion *of ' guilty ' or ' not guilty ' upon the premises . 
 delivered to them, and' that the Court may see such a deiinite 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 : Istj 
 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. 
 
 I. THE FACTS NECESSARY TO BE STATED. i. thk 
 
 CSSSABTTO 
 BE STATED. 
 
 In general, whatever circumstances are necessary to constitute the cause 
 of complaint or the ground of defence, must be stated in the pleadings, 
 and all beyond is surplusage (/) (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 fads of such a public or general nature, that the Courts ex 
 officio take notice of them, and which consequently ought not to be unne- 
 cessarily stated in pleading (A) ; 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 Courts will ex officio take notice when the King came to the ist. Facta 
 throne (i), and of the king's proclamations of war, &o. (A), and of the tj^^'c'"''* 
 articles of war, which are an emanation from the crown by virtue of acts ^ju j^, q^. 
 of parliament (J) ; 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- °°'''?i 
 leges of the crown (rn). But private Orders of Council are not considered be stated" 
 as matters of law, or of such public nature as to render it incumbent ou 
 the judges ex officio to take notice of them (w) ; and a pardon under the 
 great seal will not be judicially noticed (o) ; nor will the Courts take judi- 
 cial notice of an existing war between foreign states, or a recently de- 
 
 (e) Cowp. 682, 683. (it) 1 Ld. Raym. 282; but see 2 Camp. 44, 
 
 (/) Cowp. 683; ILd. Raym. 171; 10 East, whence it appears that the proclamation will 
 
 205. be required to be proved by the Gazette. See 
 
 {g) Cowp. 683, 684; Com. Dig. Pleader, C. 4 M. & Sel. 532, 543. As to declaration of 
 
 78; post. • war, see 11 Ves. 292; Ld. Raym. 282, 283. 
 
 (A) 2 H. Bla. 398; See Steph. on Pleading, (I) 4^ B. & C. 304; 6 D. & R. 424, S. C. 
 
 851, 1st edit.; 391, 2d edit.; Co. Lit. 303 b; (m) Ld. Raym. 980. 
 
 Com. Dig. Pleader, C. 78; 4 B. & Aid. 243. (n) 2 Lil. Prao. Reg. 303. 
 
 (t) 2 Ld. Raym. 794, 791. (o),4 Bia. Com. 402. 
 % ; ,, 
 
 (1) Vide Tucker v. Randall, 2 Mass. 283; Browne ». Stimpson, 2 Mass. 441, 444; Traoy ». 
 Dakin, 7 Johns. 75. 
 
 (2) Ooshen Turnpike Co. v. Sears, 7 Con. 92; Hurst ii. Purvis, 5 Blackf. 557; Rakes ». 
 Pope, 7 Alabama, 161; Weed ». Hill, 2 Miles, 122; Thotilas d. Van Doren, 6 Missouri, 201; 
 Puller V. Delaven, 20 Wendell. 57. . . 
 
JJ5 OP PLEADING IN GBNKBAL- 
 
 I. TOT clared war in which this country is engaged, but the same must be ptotedj 
 
 TABTs WE- uDiess rccognized by some public statute (jp). 
 
 MiiAM)! The time of holding every Parliament, and the prorogations and ses- 
 sions thereof (g), 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, put- 
 ting in issue the whole of the facts stated in the declaration (s) ; but the 
 mistake may be aided by verdict (i). The Courts will also take judicial 
 notice of the course of proceedings in either house of parliament (m), but 
 not of the Journals of either house (x), which must be stated in pleading 
 and proved in evidence (2/). * 
 
 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 afiFected 
 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 insuflBcient, for there must be an express reference to the statute, 
 as by the words " contrary to the form of the statute, <fec." in order that 
 it may appear that the plaintiff grounds his case upon and intends to bring 
 it within the statute (6). 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 extetiding 
 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 mis- 
 description 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. 6T, 69; 11 Ves. 292) 2 {z) 1 Bla. Com. 85, 86; Doiigl. "97, n. 12; 
 
 Csmpb. 44; 3 7d. 61,67. Bae. Ab. Statute,!.; 2 Wila, 376; Willes, 
 
 (5) 114. Eaym. 843; Plowd. 77; Moore, 210; seethe reason, yer Lord EUenborough, 
 
 551; 1 Lev. 296; see Bac. Ab. Statute, L. 6. 4 M. & Sel. 642. A recital in a public stat- 
 
 Describing an act to have passed in a reign, nte is evidence of the fiict recited, 4 M. & Sel. 
 
 when in fact, the parliament in which the act 582. 
 
 ■was passed was continued by prorogation to (o) 1 T. R. 145; Com. Dig. Pleader, C. 76) 
 
 that reign, is not a misdescription, 2 Chit. Lane, 71; Stephen, 352. 
 
 Eep. 513. (ft) 8 B. & C. 186; 5 D. & B. 18, S. C. 
 
 (r) Ld. Baym. 210, 843. (c) Ld. Eaym. 882; Dougl. 97; 6 T. R. 
 
 («) Id. : Cowp. 474. 776; Bac. Ab. Statute, L. 6. 
 
 (0 2 Mod. 40. (d) Rex v. Biers, 1 AdoL & El. 327; 3 
 
 («) 1 Saund. 131 a. Hev. & Man. 475. 
 
 (x) Ld. Raym. 15. (e) 1 Saund. 809 a. n. 8. Sed quare. 
 
 (V) 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 vmcUct, nor can it be assigned as error. Murray v. Fitzpatrick, 9 
 Caines, 38. 41. 
 
THE FACTS NECESSABT TO BE STATED. 'SI©' 
 
 mam statuti, it is not necessary to aver that the offence was after the pass" ^ "^ 
 ing of the act. The Courts will not *ex officio take notice of Private cmj"^^ 
 Acts (1) of Parliament, and consequently such parts of them as may be bb siats»» 
 material to the action or defence must be stated in pleading (/) ; and this 
 in the first instance (g-) . The mis-recital of a private act can only be taken 
 advantage of by a plea of nul tiel record, or in assumpsit, before the plead- 
 ing rules, Hil. Term, 4 W. 4, under the general issue (A) ; though we 
 have seen that if the time or place of holding the parliament be mis-stated, 
 it is a ground of demurrer (i). By a clause in most acts that would oth- 
 erwise be private, they are now declared to be public, and then the pro- 
 duction of any copy without proof suf&ces (y). 
 
 So the courts will ex officio notice the Ecclesiastical (Jc), Civil, and Mw 
 rine Laws (J), without any statement of them in pleading ; and if there 
 be any mis-statement of such laws, or of facts affected by them, the plead- 
 ing will be held insufficient. Thus, where an administrator durante mi- 
 nore eetate, in his declaration averred that the infant was within the age 
 of twenty-one years, the declaration was holden bad, because the Court 
 would take notice that by the ecclesiastical law such administration ceased 
 at the age of seventeen, and perhaps the executor was of the age of eigh- 
 teen, though not twenty-one, as alleged in the declaration (m) ; and the 
 forest laws are not ex officio taken notice of (w) (2). 
 
 But the Courts ex officio will not take notice of foreign laws, or of the 
 laws of our plantations ; and consequently they must in general, when ma- 
 terial, be stated in pleading (o). 
 
 The Courts are also bound to take notice of all Common Law Rights 
 and Duties, and of General Customs ; and consequently these ought not 
 to be stated in pleading (jo). Thus if in a return to a mandamus to re- 
 store a burgess of a corporation, it be stated that the party was removed by 
 the corporate body at large, it is unnecessary to aver that the power of 
 removal is vested in them, because by intendment of law such power exists 
 in the body at large, unless vested by charter or otherwise in a select part 
 of the corporation (^). And it has been well observed, that in an action 
 
 (/) 1 Bla. Com. 86; Ld. Eaym. 381, 382; which appointe twenty-one as the age at which 
 
 . iOougl. 97; liac. Ab. Statutea, L. the executor may act. 
 
 (ff) Garth. 306. (n) 2 Leon. 209. 
 
 (A) Bao. Ab. Statutes, L. 5; Ld. Eaym. (o) 2 East, 273, 274; Cowp. 174, 343; 
 
 381; Cowp. 474. Salk. 651; Burr. 1077; Rep. tem. Hardw. 85; 
 
 (t) Ante, 215; Cowp. 474. 4 T. R. 182; 3 Esp. Rep. 164; see also 3 D. & 
 
 Ij) 'Woodward v. Cotton, 6 Car. & P. 491; B. 190; Cowp. 848. It should seem the Courts 
 
 1 Crom. M. & Ros. 44, S. C, overruling will not ex q/^cio take notice of the law of Scot- 
 
 Broomhead v. Beaumont, Ms.; Chitty's Col. land, 4 Taunt. 40, 44; see 2 D. &R. 280. As 
 
 Stat. tit. Statutes. to foreign laws in general, Harrison's Index, tit 
 
 (/f) Bro. Quarelrapedit.pl. 12; March. 205; Poreigners; Vattel L. Nat. by Chitty, per tot. 
 
 1 Rol. Ab. 526; Cro. Eliz. 602; 5 Co. 29; Ld. (p) Ld. Raym. 175, 1642; Carth. 83, 269; 
 
 Raym. 338, 1334. Co. Lit. 89 a. n. 7; Stephen, 357, 1st edit. 
 
 (i) 2 Hen. Bla. 606, n. a. 391, &c., 2d edit. 
 
 (m) 5 Co. 29 a; Ld Raym. 338. But note, (?) Dougl. 149; 1 B. & P. 100; Com, Dig. 
 
 this was before the statute 38 Geo, 3, c. 87, Pleader, C. 78. 
 
 (1) Goshen Turnp. Co. v. Sears , 7 Conn. 92. 
 
 (2) The Court cannot take judicial cognizance of any of the laws of our sister States at vari- 
 ance with the common law. Holmes v. Broughton, 10 Wend. 75. It was held, that a defendant, 
 who relies upon the statute of another State, must in his plea set out the statute, that the Court 
 jnay see whether the proceedings were warranted by the statute or not, and the general allegation, 
 that the proceedings were pursuant is not sufficient. Walder v. Maxwell, 1 Mass. 103; Pearsall 
 V. Dwight, 2 Mass. 34. In Legg ». Legg, 8 Mass. 99, the same court declare that they could 
 not take judicial notice of the laws of Vermont, and upon a common law question, they must pre- 
 sume the laws of Vermont to be similar to their own. ib. 
 
GESS^BY TO 
 BB BTAI£D. 
 
 •217 ■■ OP PLEADING IN GENERAL. 
 
 I. THB against a common carrier or innkeeper for the loss of goods, &c. which is 
 iTACTs KE- ^ liability founded on the common *law or custom of the realm (1), it is 
 not only unnecessary, but improper, to recite such customs, because it 
 tends to confound the distinction between special customs,, which ought 
 to be pleaded, and tlie general customs of the realm, of which the Courts 
 are bound to take notice without pleading (r). So it is not only unne- 
 cessary, but improper, in a declaration on a bill of exchange, to set out or 
 recite fully the custom of merchants, because it is part of the law of the 
 land (s). It is for the parties to confine their allegations to the facts, 
 for ex facto jus oritur, the Court will apply for themselves the law arising 
 from the facts stated ; and this principle applies, although the dispute be- 
 tween the parties involve and directly turn upon a matter of law {f). And 
 it is a consequence of this rule, that mere matters of law or legal conclu- 
 sions from facts, if alleged by one party, should not be traversed by the 
 other (m). 
 
 Such of the Customs of Gavel-Kind and Boroughs-English as are of the 
 essence of the tenure, as the course of descent, need not be stated special- 
 ly in pleading, nor should be prescribed for ; because the common law 
 takes notice of them, and it is sufficient to state in the pleading that the 
 land is of the custom of gavel-kind, or of the tenure of Borough-English, 
 and subject thereto ; but in regard to other customs, though incident to 
 these tenures, they must be stated (x). And the Courts will not ex offi- 
 cio take notice of any Particular Local Customs (y') ; nor of the customs 
 of London, except where they have been certified by the recorder to either 
 of the courts of record (2), without which there must be either plea or an 
 affidavit of the custom (a). Thus, where a defendant pleaded that his 
 debt was attached in London by one of the plaintifi^'s creditors, it was de- 
 pided that the Court could not take notice of the custom of foreign at- 
 tachment, because it was not pleaded, and consequently that the plea was 
 bad (Z() ; but on a writ of error from the infepor Court, the custom will 
 be noticed (c). 
 
 The courts take notice of the Dat/s of the Week, &c. on which particu- 
 lar days fall, and the almanac is part of the law of the land, having been 
 established by different statutes (c?) ; and if there be a mis-statement, it 
 will be fatal (e) . Therefore, where a writ of inquiry was stated in plead- 
 ing to have been executed on the 15th of June, which was a Sunday, the 
 proceeding was held defective (/) ; and where the defendant justified an 
 [ *218 ] arrest under process from an inferior *Court, which he stated to be held eve- 
 ry Friday, and the process appeared by the pleading to have been dated 
 the 7th of August, which was Saturday, upon demurrer it was held 
 bad (§■). So the Court will take notice what number days there are in eacb 
 
 (r) Co. Lit 89 a, n. 7. Dougl. 868. 
 
 (s) Ld. Raym. 1542. (4) 1 Kol. Eep. 106; Co. Ent. 139 b; 1 
 
 (0 Stephen, 2d edit. 392, 893. Saund. 67, n. ] ; 5 Taunt. 228. Sed <ju<ere, 
 
 (u) Id. 233. the custom having been certified, Dougl. 878. 
 
 (x) Co. Lit. 175 b, n. 4; Ld. Eaym. 1026; (c) Dougl. 880; Salk. 269. 
 
 1 Bla. Com. 76 ; 2 Id. 82 to 84. As to tenan- (d) 2 & 3 Edw. 6. 0. 1 ; 5 & 6 Edw. 6, c. 1 ; 
 
 cy by courtesy, fiob. Gav. 142. 1 Eliz. c. 2; but see 2 Ventr. 247. 
 
 (y) 1 Rol. i;ep. 106; see 9 East, 185. (c) 2 Ld. Kaym. 994; 6 Mod. 41, 81; Salk. 
 
 • (z) Stra. 187, 1187; Dougl. 387, 380, 863; 181, 626. 
 
 Andr. 304; 1 Bla. Com. 76. (/) Fortese. 873; Stra. 387. 
 
 (a) Andr. 304; Stra. 1187; 3 Atk. 44; (g) Rep. temp. Hardw. 162; 1 T. E. 116. 
 
 (1) Which are Bynonymom. Co, Lit. 110 b. 
 
IN GENERAL. 2t8 
 
 THS 
 
 montli (h) and in leap year, and of the movable feasts (i). In pleading a h 
 prescriptive right of common, limited as to its exercise from a certain feast, otssAET^To 
 it is sufScient to claim it, "from the feast of St. Thomas," &c. withont be stated. 
 claiming it on the pleading from old St. Thomas's-day ; for although the 
 alteration of the style took place within the memory of man, yet as the 
 claim is from immemorial, it should be intended that the party meant the 
 old style. But in general, "St. Thomas's-day" would signify the day ap- 
 pQinted by the statute (A) for the celebration of the feast of St. Thomas 
 (Z). Even before the statute (m) which fixes the terms, the Courts took 
 judicial notice of them as to their commencement and conclusion, whether - 
 movable or not (m) ; and if process be stated, not under a videlicet (o), 
 to have been issued on a day in vacation ; and it be alleged that the 
 Court was then sitting, the pleading will, it seems, be bad on special demur- 
 i-er (p). 
 
 The Division of England into counties will also be noticed by the Court 
 ex officio (jq) ; and the reason of this is, that the sheriff of the county is 
 the person to whom the Court directs its writs (r). But the Court will 
 not take judicial notice of the division of England into parishes, vills, or 
 particular liberties, which must be stated in pleading (s) ; nor will it take 
 notice of the loca,l situation and distances of the different places in coun- 
 ties in England from each other (f) ; and though the Courts will notice 
 provinces and dioceses, they will not notice any particular place within 
 each province or diocese, except that where the court sits (u). The di- 
 vision of Ireland, or any other country, than England, into counties, or 
 the known towns or cities of such country will not be judicially noticed by 
 the Courts ; and the situation of such counties, towns, or cities, should be 
 specially stated (x) . So the Courts will take judicial notice of what 
 towns are incorporated, and of the extent of ports, and the river Thame^ 
 &c. (ji). And if by charter, confined by act of parliament, a town is ex- 
 empted from *the jurisdiction of the sheriff of the county, and has pecu- [ *219 ] 
 liar liberties and privileges, the Court will take judicial notice thereof (z). 
 
 The Courts will ex officio take notice of the meaning of English loords 
 and terms of art, according to their ordinary acceptation, however vulgar 
 and peculiar to a particular county or place in England ; and consequent- 
 ly the meaning of such terms need not in general be averred (a), unless 
 the intendment of law be otherwise (If). Thus in an action on a warran- 
 ty of a carroom, it was held not necessary to aver what a carroom was, 
 because it was a phrase then well known in London (c). So in an action 
 for words spoken in England, which are slanderous according to the 
 
 (A) 1 Kol. Ab. 524, C. pi. 4. In general 538; 2 B. & B. 659, S. 0. 
 
 the term monlh', in law, is to be considered as (p) 5 Burr. 2586; 3 T. B. 184; 1 Saund. 
 
 a lunar month, but this may be explained by 300 a, note 7; see 15 East, 378. 
 
 the intention of the parties to mean a calendar (?) 2 Inst. 557; March. 124; Comb. 460. 
 
 month; 3 B. & B. 186; 6 T. B. 224; 1 M. & (r) As to the mis-spelling a county, see 
 
 Sel. 1 1 1 ; 1 Stra. 652, 446. Hodgkinson v. Hodgkinson, 2 Dowl. 536. 
 
 (i) 6 Mod. 81; Salk. 626; Ld. Eaym. 994. (s) Supra, n. (9.) 
 
 The calendar upon which the Courts proceed is ' \t) 4 B. & Aid. 243; 1 Chit. Kep. 32. 
 
 that annexed to the Common Prayer Book, 6 (u) Ld. Eaym. 854, 1379; Stra. 609; 3 T. 
 
 Mod. 81. E. 387. „ „ ^ . „ 
 
 (fr) 24 Geo. 2, 0. 23, s. 2. {x) 1 Chit. Bep. 28, 32; 2 B. & A. 301, S. 
 
 (l) 3 Bing. 401. As to the lease from or C; 2 D. & K. 15; 1 B. & C. 16. 
 
 notice to quit "Michaelmas," 11 East 312; 2 (77) Stra. 469; 1 Hen. Bla. 356, 357. 
 
 Campb. 256. (z) See 3 Bing. 460, 461. 
 
 (m) 1 W. 4, 0. 70, 8. 6. (a) 1 Eol. Ab. 86, 625. 
 
 (n) IT. E.116; lSa^nd. 300d. n. 7. (i) 4 T. E. 314. 
 
 (0) It would not be bad if so stated, 5 Moore, (c) 1 Bol. Ab. 525; 5 Vm. Ab. 492. 
 
 Vol. 32 
 
219 OP PLEADING IN GENERAL. 
 
 I. THE phrase of the county in which they were uttered, though the court may 
 FACTS NE- jjq(; jt^ f^p^ know what they signifv, it is not necessary to aver tlicir signifi- 
 
 CESSARY TO v c; »/ 7 •' *-J 
 
 BB STATED, cation, for the judges themselves will take judicial notice of English words 
 in any county (ri). The Courts will also take notice of the names and 
 quantity of legal weights and measures (e); and of time according to or- 
 dinary expressions (/). But if the intendment of law bo different to the 
 statement in the pleading, the real meaning of the term in the particular 
 instance must be alleged, and therefore it was decided that proof that the 
 defendant agreed to sell so may bushels, according to a particular meas- 
 ure, will not support an allegation in a declaration to sell so many busii- 
 els generally, because "bushels," without any other explanation., signify 
 the legal statute measure of a Winchester bushel (g-). And if an instru- 
 ment be described as made here for the payment of a sum of money 
 generally, it will be intended that English money was to be paid (/i). 
 
 Every Court is bound to take judicial notice of its own course of Pro- 
 ceedings (i), and of those of the other superior Courts (A) ; and there- 
 fore in these cases it is not necessary, in pleading, to allege any usage 
 or prescription in support of such proceeding (/) (1). So where, 
 upon a motion in arrest of judgment, because the declaration had 
 not shown out of what Court a writ of latitat was issued, the Court 
 said, that there being no writ properly called a latitat but what issues 
 
 r *220 ] out of the King's Bench, the declaration was sufficient (m); and it is *un- 
 necessary to state matters antecedently alleged in the same record (n). 
 
 The superior Courts will also notice the Privileges they confer on their 
 Officers (ui), and therefore, though in a plea of privilege it is usual to 
 state the custom of the Court, privileging attornies, <fec., such statement ap- 
 pears unnecessary. In Orgle v. Norclifft, Holt, C. J. said, that the privi- 
 lege claimed by the defendant was due to the clerks of the Common Pleas 
 of common right, of which the Court of King's Bench would take notice (/;). 
 In one case where the customary privilege was mispleaded, it being urged 
 for the defendant that the Courts would take no notice of the privilege, 
 and reject as surplusage the custom which was pleaded, the Court said, 
 that whatever they would have done, had it stood indifferent, they could not 
 take notice of a privilege expressly contrary to what the defendant had 
 stated (q). But that decision seems questionable (r). Each Court takes 
 judicial notice that an attorney or officer of its ovm Court is its officer, 
 without affidavits (s), though a plea of privilege by an attorney to be sued 
 in another Court requires an affidavit of its truth to be annexed (<)• 
 
 (d) 1 Rol^ Ab. 86 ; 1 Vin. Ab. 531 ; 1 Saund. (fe) 2 Co. Kep. 18 ; Cro. Jac. 67 , 68 ; 1 Kol. 
 
 242, note 1; qucere, whether it may not, be Rep. 106; Sir W. Jones, 417; Cro. Car. 527. 
 
 necessary to give a translation of a foreign li- (/) 2 Co. Rep. 16 a; Year Book, 2 Rich. 8, 
 
 bel or instrument, see id. note b. 6tli edit.; 3 p. 9. pi. 21. 
 
 B. & B. 201. (m) Ld. Raym. 397. 
 
 (0 1 Rol. Ab. 525. (n) Co. Lit. 308 b; Ld. Raym. 13. 
 
 (/) Id. ; Ld. Raym. 794. (o) Ld. Raym. 869, 898. 
 
 (5-)4T. R. 314;s"eellEast, 312;2Campb. (p) Ld. Raym. 869; 9 East, 424, 339; 12 
 
 256. « Id. 644. 
 
 (A) 2 B. & A. 201. (9> Ld. Raym. 399. 
 
 (i) 1 T. R, 118; 2 Lev. 176; Plowd. 145, (r) 9 East, 824, 439; 12 Id. 544. 
 
 .163; 1 Rfcl. Rep. 106; Burr. 811. The Court . (s) Ex parteHore, 3 Bowl. 600, 
 
 will not take judicial notice who is master of (t) Uavidsoni;. Watkins, SDowl. 129. 
 the King's Bench, 3 M. &. SeL 168. 
 
 (1) See King v. The Bank of Gettysburg, 2 Rawle 197. But the practice of the court is 
 pleadable where the very merits of the case depend upon it. Dudlow v. Watohorn, 16 East, 89. 
 
THE PACTS NECESSARY TO BE STATED, 22t]r 
 
 So the Courts at Westminster will notice Courts of General Jurisdic- 1- ra" 
 tion, and the course of proceedings therein, as that there was a Court of Itsam^io 
 Exchequer in Wales, and the course of proceedings there, and they also be stamd. 
 notice the jurisdiction of the Courts of the counties palatine (?/). But it 
 has been decided, that the Courts are not bound to take notice who were 
 or are. the judges of another Court at Westminster, though perhaps they 
 ought to take notice of the judges of their own Court {x) ; and therefore 
 where the authority of a judge may be material to the action or defence, 
 it should be expressly stated in pleading (y) ; and in pleading a fine the 
 names of the judges and their authority should be stated (r). 
 
 The superior Courts will not ex officio take notice of the customs, laws, 
 or proceedings oijnferinr Courts of limited Jurisdiction (a), unless when 
 reviewing their judgments upon a writ of error, when, for the purposes of 
 justice, they must neces^rily notice them (6). In a return to a writ. of 
 habeas corpus, inferior Courts must in their return set forth the law or 
 .custom of the place by which they justify their commitment, otherwise the 
 Court is not bound to take notice of it ; but on a writ of error it is oth- 
 erwise (c). 
 
 * Where the law presumes a fact, it need not be stated in pleading (rf). [ '221 ] 
 Thus as it is an intendment of law, that a person is innocent of fraud, and ^^•y- 
 every imputation affecting his reputation, the party insisting upon the con- JJ,^*™!'" 
 trary must state it in pleading (e). Therefore in an action for words, as sumes a 
 for saying a man is ajhief, the plaintiff has no occasion to aver that he is f*"'- "' '* 
 not a thief (/) ; and in an action on the case for maliciously suing out a g^jiy^f^- 
 commission of bankruptcy, it is not necessary to state in the declaration that plied, it 
 the plaintiff was not indebted to the defendant, oi' that he never committed °^^^ "o* 
 an act of bankruptcy (§■). It is a rule applicable in some cases to plead- °* *'***''■ 
 ing, that where the law presumes the af&rmative of any fact, the negative 
 of such fact must be proved by the party averring it in pleading. Thus 
 wliere any act is required to be done by a person, the omission of which 
 would make him guilty of a criminal neglect of duty, the law presumes 
 the affirmative, and throws the burthen of proving the negative on the 
 party who insists on it (li) (1). Illegality in a transaction is never pre- 
 sumed ; on the contrary, every thing is presumed to have been legally 
 done till the contrary is proved (i).*' And as observed by Lord Coke, 
 necessary circumstances implied by the law need not be expressed or 
 pleaded (§•). Thus, if a feoflfment be pleaded, livery of seisin need not 
 be alleged, for it is implied in the word " enfeoffed ;" and in pleading the 
 assignment of land for dower, it is not necessary to say, that it was by 
 
 (u) 1 Ld. Raym 154; 1 Saund. 73; 6 Mod. (e) Co. Lit. 78 b; Heath's Max. 207, 212. 
 
 74; Cro. Eliz. 502, 603; Cro. Car. 179; 1 Sid. (/) 2 \Vil8. 147. 
 
 831. (g) Id. But in this case the declaration 
 
 (r) Andr. 74; Stra. 1226. always avers that the defendant acted mali- 
 
 (!/) Id. oiously and without probable cause, &o. 
 
 (j) 2 Saund. 175, n. 2. -(A) 3 East, 192; 2 M. & Sel. 561. 
 
 (rt) 1 Rol. Rep. 105 ; Ld. Raym. 1834; Cro. (i) 1 B. & Aid. 468. 
 
 Eliz. 602; S.ilk. 269. (?)" 8 Co. Rep. 81 b; See Bac. Ab. Pleas, 
 
 (6) Cro. Car. 179; 1 Rol. Rep. 105. (1. 7); Com. Dig. Pleader, E. 9; Co. Lit. 803 
 
 (e) Salk. 269. b; 2 Saund. 306 a. (13); 2 Hen. Bla. 120; 2 
 
 {d) 4 M. & S. 120; 2 Wils. 147; Stephen B. 361; 6 Moore, 74; 5 B. & Aid. 507; Steph. 
 
 on Plead. 858, 1st ed. ; 899, 2d ed. 2d ed. 398. 
 
 (1) Vide Phillipps's Ev. 151 ; The King v. Hawkins, 10 East, 216 i Rex ». Rogers, 2 Caropb; 
 654. 
 
221 
 
 OP PLEADINGf llf GENERAL, 
 
 FACM NE ^^^^^ ^^^ bounds, for it shall be intended a lawful assignment ; so in 
 oEssAETTo plcadiug a surrender, the re-entry of the lessor need not be stated, for it 
 BB STATED, shall be intended ; so where it is pleaded, that the sheriff made his war* 
 rant, it is unnecessary to say, that it was under his seal, for it could not 
 be his warrant if it were not ; so if a person plead that he is heir to A., 
 he need not say either that A. is dead, or that he had no son ; and in 
 pleading an acceptance by a corporation of an assignee of the lessee as a 
 tenant, it is not necessary to show that the acceptance was by deed, for an 
 acceptance being pleaded, every thing that would, render it a good ac- 
 ceptance is implied (A) (1). And if it be pleaded that a party to a ref- 
 erence " revoked the authority" of the arbitrator, it need not be alleged 
 that the latter had notice of the revocation, for without such notice there 
 [ '222 ] would be no revocation (i). *And in declaring on a contract it is sufS- 
 cicnt if it be set forth according to its legal effect^(A;). 
 
 Great care must be taken in the application of this rule to ascertain that 
 the law intends the fact proposed to be omitted. Thus, in pleading a 
 devise of land, it must be stated to have been in writing, though in point 
 of law it could not otherwise be a will (/) ; and it is said, that when the 
 defendant pleads that another person promised to be answerable to the 
 plaintiff for the debt, in lieu of the defendant, it must be shown to have 
 been in writing, pursuant to the statute against frauds, so that it may ap- 
 pear to be such a contract as the plaintiff could enforce (m). But clearly 
 in declaring upon a contract within the statute against frauds, it need not 
 be alleged, or specifically shown, that the contract was in writing (w). 
 And in a declaration on a bill of exchange, it need not be averred that 
 the acceptance was in writing (o). The distinction is, that a will is only 
 valid by statute, and that statute requires it to be in writing, &c. ; but as 
 ' to contracts and bills of exchange they were valid at common law, and 
 
 the statutes merely require a certain form (p). 
 
 Sdly. A It is also a general rule of pleading, that matter which should come 
 P"^"**** more properly from the other side need not be stated (g). In other 
 ^t, which words, it is enough for each party to make out his own case or defence (2). 
 is more He sufi&ciently substitutes the charge or answer for the purpose of plead- 
 toT^^tat ^^^' ^^ ^^^ pleading establish a prima facie charge or answer. He is not 
 ed by the ' bound to anticipate, and therefore Ife not compelled to notice and remove 
 other side, in his declaration or plea every possible exception, answer, or objection, 
 
 (A) 2 Saund. 305 a, note (13). (o) 6 Bing. 529. 
 
 (i) 5 B & Aid. 507; 8 Rep. 81 b, S. P. (p) Id.; see Stephen, 2d ed. ill ; post. 
 
 (fe) Seeyos«. {q) Com. Dig. Pleader; C. 81; Plowd. 376; 
 
 {I) 1 Saund. 276 note b. (2); post. 2 Saund. 62 a. n. 4; 1 T. R. 638; 8 Id. 167; 
 
 (m) Id.; Raym. 450; sed qu.; and see Steph. 1st ed. 354; 2d ed. 395. 
 Bteph. 2ded. 418, 419, note. 
 
 («) 1 Saund. 211, note (2) ; 276, note (1), 
 (2). 
 
 (1) In covenant for rent due on a leaae, against the assignee of the lessee, the plaintifT need 
 not aver the lessee bad not paid the rent.: it is sufficient if he states that the rent accrued sub- 
 sequent to the assignment to the defendant, and that the same vras due and owing to the plain- 
 tiff, and wholly in arrear and unpaid; for it is implied in the averment, that the defendant, 
 owed it. Dubois v. Van Orden, 6 Johns. 105; Vide etiam Scott v. Scott, 16 East) 348. 
 
 (2) Karathaus v. Owings, 2 Gill & Johns. 441 ; Goshen, &c. Tump. Co. v. Sears, 7 Conn. 
 92,93; Salman v. Bradshaw, Cro. Jac. 304; Barton v. Webb, 8 Term, 459, 468; Shum d. 
 Farrington, 1 Bos. & Pul. 640, S. C. 8 Term, 463; Postmaster General v. Cockran, 2 Johns. 
 415, 416; Hughes v. Smith, 6 Johns. 168; WUcooks v. Nickolls, 1 Price's Exoh, 109; 9 Wend, 
 7, 878? Griswold ». Nat. Ins. Co. 8 Cowen, 96. 
 
THE FACTS lifBCESSART 10 BE STATED. 222 
 
 •which may exist, and with -which the adversaty may intend to oppose hira. ^- the 
 Thus, in a declaration on a bond it is not necessary to aver that the de- l^"^ ^^ 
 fendant was of full age when he executed the bond (r). In an action of Trstlj^D. 
 debt on a bond conditioned that B. should remit all monies received for 
 0. to_C., or pay the same to him or his order as should be directed, it is 
 sufficient to state a non-payment to C. ; and it is not necessary, in a re- 
 plication to a plea of general performance, to allege any order given by C. ; 
 for if any had been given, it should be shown by the defendant (s). So 
 in an action on a post obit bond, the plaintiff need not even aver the 
 death of the person on whose death the money was payable (<). So 
 in an action on a promise made by a testator upon a good consideration, 
 that his executor should pay it, it is not necessary to aver in the declara- 
 tion that the defendant has assets (u). So in assumpsit on a contract to 
 transfer stock to the plaintiff or his order on request, the plaintiff stated a , 
 
 request, and averred that the defendant *had not transferred ; and on an [ *223 ] 
 objection being taken that the plaintiff should have averred that the de- 
 fendant had not paid to the plaintiff's order, it was overruled, because 
 the averment of payment to such order ought to come from the other 
 side (a;). 
 
 If the plaintiff allege a condition subsequent to his estate, he need not 
 aver performance, but the breach must be shown by the defendent ; and 
 matter in defeasance of the action need not be stated ; and wherever there 
 is a circumstance, the omission of which is to defeat the plaintiff's right 
 of action, prima facie well founded, whether called by the name of a pro* 
 viso or a condition subsequent, it must in its nature be a matter of defence, 
 and ought to be shown in pleading by the opposite party (j^). In pleading 
 upon statutes, where there is an exception in the enacting clause, the 
 plaintiff must show that the defendant is not within the exemption, but if 
 there be an exception in a subsequent clause, that is matter of defence, 
 and the other party must show it to exempt himself from the penalty 
 («) (1). And where an act of parliament in the enacting clause creates 
 an offence, and gives a penalty, and in the same section (a) there follows 
 a proviso containing an exception, which is not incorporated with the en- 
 acting clause by any words of reference, it is not necessary for the. plain*- 
 tiff in suing for the penalty to negative such an exception (6) (2). The 
 recent case of Vavasour v. Ormrod (c) well elucidates this doctrine. It 
 was an action upon a lease, and the declaration described the reddendum 
 
 (r) Plowd. 564; 1 Vent. 217; Steph. 2d also incorporated in the enacting sentence; for 
 
 edit. 395, 396. • statutes are not divided into sections upon the 
 
 (s) 1 T. R. 485. rolls of parliament. Per Bayley, J., 8 B, & 
 
 (0 2 B. & C. 82; 3D. & R. 231, S. C. C. 189; 5 D. & R. 19, S. C. 
 
 (m) 7 Taunt. 580. (i) 1 B. & Aid. 94. Sometimes ai clause 
 
 {x) Ld. Raym. 114, 247, 673, 989.. apparently containing an exception is to be 
 
 ,(y) Per Ashhurst, J., 1 T. R. 545, 646; considered merely as explanatory of the en- 
 
 Com. Dig. Pleader, C. 81. « acting clause. See a decision upon the Wilful 
 
 (x) 1 T. R. 144, 145; 6 Id. 559; Bac. Ab, Trespass Act, 1 G. 4, c. 56; 4 Bing. 183, 189. 
 Statute, L.; 1 East, 646, 647; 2 Chit. R. 582. (c) 6 B. & C. 430; 9 D. & R. 597, S. R; 
 
 (n) Mere placing the proviso in the same see 4 Campb. 20; 11 East, 640; 6 M. & Sel. 
 
 section of the printed act, does not make it ne- 9. How to declare on an award, 1 Saund. 62 
 
 cessary to notice it in pleading, unless it is a, b, note. 
 
 (1) Aoc. Jones v. Axen, 1 Ld. Raym. 120; Rex v. Ford, Str. 555; Rex v. Bryan, Id. 1101; 
 Sheldon v. Clark, 1 Johns. 518; Bennet v. Hurd, 3 Johns. 438; Teel v. Fonda, 4 Johns.. 304; 
 Hart V. Cleis, 8 Johns. 41; Smith v. United States, 1 Gallis, 261; 1 Saund. 262 b.; Donnelly 
 ti. Vandenburgh, 3 Johns. 41, 42. 
 (2) Smith V. Moore, 6 Greenl. 278, and the American oases there cited. 
 
228 OP PLEADING m GBNEBAL. 
 
 I. THE as containing an absolute reservation of rent. In fact, the reddendum 
 cEssAKT^To '^^^ " yi'*'*!''!" ^'^^ Paying daring the said term (^except as hereinafter 
 BE STATED, vieutioned) the yearly sum, &c." In the latter part of the lease there 
 was a covenant and proviso by which a deduction was to be made, if a 
 certain event happened ; and it was held that the declaration was bad. 
 A.nd Lord Tenterden said, " if an act of parliament or a private instrument, 
 contain in it, first, a general clause, and afterwards a separate and distinct 
 clause, something which would otherwise be included in it, a party rely- 
 ing upon the general clause, in pleading may set out that clause only, 
 without noticing the separate and distinct clause which operates as an e.t' 
 ception. But if the exception itself be incorporated in the general clause, 
 then the party relying upon it must in pleading state it with the excep- 
 [*224 3 tion; and if *he state it as containing an absolute unconditional stipula- 
 tion, without noticing the exception, it will be a variance. This is a 
 middle case. Here the exception is not in express terms introduced into 
 the reservation, but by reference only to some subsequent matteir in the 
 instrument. The words are ' except as hereinafter mentioned.' The rule 
 here applies verba relata inesse videntur. And the clause thereinafter 
 mentioned must be considered as an exception in the general clause, by 
 which the rent is reserved; and then, according to the rule above laid 
 down, the plaintiff ought in his declaration to have stated the reser- 
 vation and the exception. Not having done so, I am of opinion that the 
 variance is fatal, and that there is no ground for setting aside the non- 
 suit." 
 
 So if the law raise an exception to the general right, it need not be 
 stated in pleading (J). Therefore, although the holding a market on cer- 
 tain feasts is prohibited by statute, yet in pleading a right to hold a 
 Inarket, it may be alleged that the party was entitled to hold it on certain 
 specified days in the week, without any exceptions to those feasts (e). 
 And it is a rule with respect to acts valid at common law, but regulated 
 as to the mode of performance by statute, that it is suflScient to use such 
 certainty of allegation as was sufficient before the statute (/). 
 
 But in acting upon the rule, that the pleading need not show and |,void 
 distinct matter of defence or answer, which it is for the adversary to object, 
 care should be taken to discriminate accurately whether the matter in 
 question is not so intimately connected with the case of the party pleading, 
 that its affirmation or denial is essential to the validity of his pleading, 
 in reference to and in consequence of the prior pleadings upon the record. 
 In case for disturbing a right of common by putting cattle thereon, the 
 defendant pleaded a license from the lord of the manor, but did not aver 
 that there was left a sufficient common for the commoners ; and on de- 
 murrer the Court held, that the plea was for this omission bad ; for though 
 it may be said, that the plaintiff might reply that there was not enough 
 common left, yet as he had already allqged in his declaration that his en-" 
 joyment of -the common was obstructed, the contrary of this should have 
 been shown by the plea to render it a perfect defence (g-). 
 
 And there are certain pleas which are regarded unfavorably by the 
 Courts ; as pleadings in estoppel (A), and a plea of alien enemy (i) ; and 
 as to these it is essential to their validity that they should, (contrary to 
 
 (d) Cro. Eliz. 485; 9 East, 839. (?) 2 Mod. 6 ; 1 Freem. 190,,S. C; Willes, 
 
 (e) 7 B. & C. 57; 9 D. & K. 863, S. C. 619 ; Stephen, 2d ed. 397. 
 
 (/) ISaund. 276a,andc,n. (2); 211, n. (fc) Co. Lit. 252 b ; 303 a; 2 H. Bla. 580. 
 (2) ; Bteph. 2d ed. «7 ; ante, pott. (i) 8 T. E. 167 ; 8 East, 80. 
 
rACTS NE- 
 CESSARY 10 
 
 THE PACTS NECESSARY TO BE STATED. 224 
 
 the general rule,) show, not only a prima facie case or defence, but i- the 
 should mention and affirm, or dispute, every matter "which *by possibility cesJaryio 
 could afford the opposite party an answer to the pleading (k). » be stated. 
 
 r *225 1 
 Although any particular fact maybe the gist of a party's case, and the 4ti,]y. it is 
 statement of it-is indispensable, it is still a most important principle of not neoes- 
 the law of pleading, that in alleging the fact, it is unnecessary to state ^^^y '.° 
 such circumstances as viercli/^ tend to prove the truth of it (I) (I). The pielding 
 dry allegation of the fact, without detailing a variety of minute circura- meie mat- 
 stances which constitute the evidence of it, will suffice. The object of '*"■ °^ «"" 
 the pleadings is to arrive at a specific issue upon a given and material ^'"'*' 
 fact, and this is attained, although the evidence of such fact, to be laid 
 before the jury, be not specifically developed in the pleading. Therefore 
 if the question be, whether wheat, after it had been cut, was suffered to 
 lie on the ground " a reasonable time," it is sufficient to allege generally 
 that such was the fact, without showing specifically how many days the 
 corn remained on the ground, and what was the state of the weather dur- 
 ing that period ; although such matters may be material to the due con- 
 . sideration and decision of the question (m). So, under the common aver- 
 ment in a declaration upon a bill of exchange, that the defendant " had 
 notice," of tlie dishonor, the plaintiff may show special circumstances or 
 facts which render the notice valid, although it were given at a later pe- 
 riod than would, in ordinary cases, have sufiiced ; for there is no need in 
 pleading to state more than the legal effect of the facts (n). And upon 
 this principle it is often sufficient, in setting out a custom or privilege, 
 which is exercisable only to reasonable extent, or at seasonable times, to 
 allege generally that such Iwas the custom, &c., without showing specifi 
 cally what was reasonable or seasonable, &c., (o). 
 
 This rule may indeed be difficult in its application, but it has been 
 rightly said (/»), that it is so elementary in its kind, and so well obseiwed 
 in practice as not to have become frequently the subject of illustration by 
 decided cases, and (for that reason probably) is little, if at all noticed in 
 the digests and treatises. 
 
 Though the general rule is, that facts only are to be stated, yet there ^tWy. 
 are some instances in which the statement in the pleading is valid, though on*^!"** 
 it does not accord with the I'eal facts, the law allowing Bl fiction; as in the fictions, 
 action of ejectment, in which the statement of the demise to the nominal &«• 
 plaintiff is fictitious ; {q). So in trover and detinue, the usual allegation 
 that the defendant found the goods, rarely accords with the fact (r) ; and 
 whore the number, quantity, species, or value of a thing, need not bo 
 proved precisely as laid, it is usual to state a greater number than really 
 
 (/f) See Steph. 2d ed. 397, 398. (o) 3 Bing. 61, and oases there cited. 
 
 (0 9 Rep. 9 b; Ld. Raym. 8; Carth. 491; (p) Stephen on Plead. 1st ed. 351; 2d ed. 
 
 Stephen, 1st ed. 348 ; 2d ed. 388. ■< 394. 
 
 (m) Wjljes, 131. (o) 2 Burr. 667, 668. 
 
 (n) 8 B. & C. 387. (r) Ante, 123, 146; 1 New Rep. 140. 
 
 (1) Ralston v. Strong, 1 Chip. 293; Church v. Gilman, 15 Wendell, 650; Dyett v. Pendle- 
 ton, 8 Cowen, 727; Fidler II. Delavan, 20 Wendell, 87; Steuben Co. Bank u. JIatthewson, 5 
 Hill, 249 ; Colvin i;. Burnett, 17 Wendell, 501 ; Hobson v. Mc.-Vrthur, 3 McLean, 281; The 
 State V. Leonard, 6 Blackf. 173. Hartman v. Keystone Ins. Co. 21 Peun. (9 Harris,) -166. But 
 irhere the declaration sets out a good cause of action, it is no objection to its sufficiency that it 
 needlessly sets out matter of evidence. Crofj; v. Rains, 10 Texas, 620, 
 
*226 OP PLEADING IN GENEBAL. 
 
 rAc™NE ^^® *^^ °^^®' '^"^ o^<i6i" to admit of greater latitude in evidence ; but ex- 
 oEssiaYTo ^^P^ i"? *^^^^ ^^^ ^ f^'^ o^'^si' '"'sll known instances, established andrecog- 
 BE STATED, nized in pleading for the conyenieuce of justice, the pleading matter 
 known to the party to be untrue, is censurable (s). And whenever the 
 purposes of justice require that a fiction of law with regard to time,&c. 
 should not be attended to, and that the real facts should appear, it is com- 
 petent to a party to show the truth by averment in pleading (<). Thus, a 
 party might, before the recent enactment, show that a judgment was actu- 
 ally signed in vacation, although by fiction or intendment of law, all judg- 
 ments were supposed to be recovered in terni, whilst the Court, who were 
 supposed to have formerly pronounced it, were sitting (u). Where a bill 
 was filed against an attorney in vacation, which by fiction of law was sup- 
 posed to take place in term, it was competent to the party filing the bill 
 to show the very day it was filed. And so in the case of writs, which, 
 before the uniformity of process act, 2 W. 4, c. 39, were supposed tols- 
 sue in term, it was competent to a party to show the time when they ac- 
 tually issued, if that became necessary, in order to avail himself of the 
 statute of limitations, &c. (x). 
 
 ethiy. Of We have before remarked that the object of the science of pleading is 
 up ici y. ^^g production of a single issue upon the same subject-matter of dispute. 
 The rule relating to duplicity, or doubleness, tends, more than any other, 
 to the attainment of this object. It precludes the parties, as well the plain- 
 tiff as the defendant in each of their pleadings, from stating or relying 
 upon more than one matter, constituting a sufficient ground of action, in 
 respect of the same demand, or a sufiBcient defence to the same claim, or 
 an adequate answer to the precedent pleading of the opponent (y). The 
 plaintiff' cannot, by the common law rule, in order to sustain a single de- 
 mand, rely upon two or more distinct grounds or matters, each of which, 
 independently of the other (1), amounts to a good cause of action in respect 
 of such demand (2). Thus at common law, in a declaration upon a bond, 
 the plaintiff could not assign two breaches of the condition, because the 
 bond was forfeited by one breach, which was sufficient to support his action, 
 though in covenant several breaches of different covenants might Tbe sta- 
 ted {z). And the same count must not contain two promises in re- 
 pect of the same subjectmatter, as a promise to pay a specific sum for 
 a horse, and also a promise to pay for the same horse so much as it is 
 
 (s) Bac. Ab. Pleader, G. 4; 1 East, S72. 1174; 2 Eunomug, 141; Steph. 2d ed. 292; 2 
 
 See post, as to sham pleas. Saund. 4'9, 50. 
 
 (0 3 B. & C. 317. (z) Id.;l Saund. 58 & 58 a, note 1. What 
 
 (") Jd. is not duplicity in assigning a breach of the 
 
 (a:) Per Abbott, C. J., 8 B. & C, 324. condition of a replevin bond, 3 M. & Sel. 182, 
 
 (!/) Com. Dig. Pleader, C. 83, E. 2; Bao. 183. 
 
 Ab. Pleas, K. 2, 3; Tidd, 9th edit. 661, 694, 
 
 (1) Vide Currie v. Henry, 2 Johns, 488, 487; Stewardson v. White, 3 Har. & M'Hen. 455; 
 Porter v. Breckenridge, 2 Blackt 385; Bryan v. Buford, 7 J. J. Marsh, 885; Jarman v. Win- 
 sor, 2 Harrington, 162. 
 
 (2) If the declaration contains a substantial cause of action, duplicity or irrelevant and su- 
 perfluous matter, does not vitiate it. CoUinson i>. Semons, 2 Porter, 145 ; Evans u. Watrous, 
 ib. 205; Lord v. Tyler, 14 Pick. 166; WUde, J. in Dunning v. Owen, 14 Mass. 157. It is not 
 duplicity in a declaration, that it appears from it, that the plaintiff has more than one good 
 cause of action against the defendant, but it is necessary that it should farther appear, that he 
 relies upon more than one cause of action, as a ground of recovery. Baymond v Sturge, 23 
 Conn. 134. Immaterial matter does not constitute duplicity, ib. 
 
THE FACTS NECESSARY TO BE STATED. *227 
 
 I. THE 
 
 ■worth(ffi)(l). The defendant could not in answer to a *smgle claim, rely 
 on several distinct answers ; nor can he now do so in one plea. Thus, in a oehs'akt'to 
 plea of outlawry, the defeadant cannot state several outlawries, because bb statbd, 
 one would be sufficient to defeat the action (6); and on the same ground 
 there cannot be a demurrer and a plea to the same part of a declaration 
 or plea, &c. (c). The principle equally affects all pleadings ; its appli- 
 cation is, however, confined to instances in which there is, on the face of 
 the pleading, one entire or single matter proposed to be supported or an- 
 swered. Even at common law, the dedaration may comprise several 
 counts upon different distinct demands of the same nature ; or distinct 
 counts upon the same claim (c^). The latter is evidently an evasion of 
 the doctrine of duplicity, but even in this instance, the counts should pwr- 
 port to be founded on distinct demands (e) ; and at common law a distinct 
 plea-to each distinct and divisible cause of action (/), where several 
 claims are combined in the same declaration, is admissible, although each 
 plea differs in its nature from the others. As if there be a declaration 
 with two counts on two bonds, the defendant might always plead non est 
 factum, or other matter, to one count, a,nd payment, or a release, or other 
 matter, to the other count. And it is important to remember that several 
 distinct facts or allegations, however numerous, may be comprised in the 
 same plea, or other pleading, without amounting to the fault of duplicity, 
 if one fact, or some of the facts, be but dependent upon, or be mere in- 
 ducement or introduction to the others, or if the different facts form to- 
 gether but one connected proposition, or entire matter or point (^g*) (2). 
 
 With regard to declarations, there has been a statutable relaxation of 
 the rule in actions upon bonds, or any penal sum for non-performance of 
 covenants contained in any instrument. The statute (A) permits the 
 plaintiff, in such actions, to assign asmany breaches as he shall think fit, 
 
 (0) 7 Mod. 143. as a proctor, for mUoonduot, 6 Bing. 587. 
 
 (A) Garth. 9. (g) See 1 M. & P. 102, 123; i Bing. 428, 
 
 (c) Bac. Ab. Pleas, K. 1, 8. S. C. ; 5 B & C. 547. And see Stephen, 2d ed. 
 
 Id) See post, as to several counts. 302, 303, and the instances there given ; and 
 
 (e) Staph. 2d edit. 318, 319; Seeposf. post, under the head of qualities of pleas In 
 
 (/) As in the case of a libel charging tU at bar, and of replications, 
 the plaintiff had been thrice suspended, &c. (A) 8 & 9 Wm. 3, c. 11, s. 8. 
 
 (1) But in Cheetham j>. Tillotson, 5 Johns. 340, where two distinct causes of action were 
 stated in what was, in form, one count, the Court of Errors chose to consider them as separate 
 counts, and reversed the judgment because entire damages had been assessed. 
 
 (2) A plea by a vendor, that he was not requested to convey, and that he did not refuse, is 
 bad for duplicity on special demurrer. Connolly v. Pierce, 7 Wendell, 129. See Welch v. Jamir- 
 son, 1 Howard (Miss.) 160; Benner »: Klliott, 5 Blackf 451. A plea of payment and release 
 by the plaintiff is bad for duplicity. Colhoun v. Wright, 3 Scammon, 74 ; McConnell o. Stet- 
 timis, 2 Silman, 707. 
 
 A plea in trover stating that the goods were sold by order of the plaintiff on commission, and 
 that the defendant was discharged under the insolvent act, is bad for duplicity. Kennedy v. 
 Strong, 10 Johns. 289. A party cannot present an issue of fact and an issue of law at the same 
 time. And if he pleads after demurrer overruled, he is considered as acquiescing in the 'deci- 
 sion upon the demurrer. Gage v. Melton, 1 Pike, 224 ; Stocking v. Burnett, 10 Ohio, 137 ; Penn, 
 and Ohio Canal v. Webb, 9 Ham. 136. 
 
 But a plea may contain as many facts as are necessary to constitute one defence, and it is not 
 on that account double, Patcher v. Sprague, 2 Johns. 462; Tucker v. Ladd, 7jCowen, 450; Strong 
 w. Smith, 3 Gaines, 160; Beokley ». Moore, 1 M'Cord, 464; Potter v. Titcomb, 1 Fairf. 63; 
 State Bank v. Hinton, 1 Devereux, 397; Torrey v. Field, 10 Vermont, 353; Jackson v. Rundlet, 
 1 Minot & W. 381 ; Maggort v. Hansbarger, 8 Leigh, 532. In trespass it is not duplicity to 
 plead to a part, and to justify or confess as to the residue. Parker v. Parker, 17 Pick. 236. 
 
 Where there is more than one plea, they are not regarded as bad, merely beoai?se of their in- 
 consistency, Gorden v. Pierce, 2 Fairf. 213. It is o&erwise, however, where inconpistent mat 
 ters are alleged in the same plea. Wann v. M'Goon, 2 Scammoti, 74, 
 
 Vol,. I. 33 
 
227 
 
 OF PLEADING IN GENERAL. 
 
 FACTS NE- 
 
 ,iw=. ^«^ ^"*^ ^^^^ Statute has been held to be compulsory on the plaintiff (i). And 
 c^ssIetto although the Reg. Gen. Hill. T. 4 W. 4, reg. 5, orders that there shall be 
 BE STATED. odIj One count in personal actions on the same cause of action, yet it ex- 
 pressly allows several breaches of the same contract or duty to be assigned, 
 for otherwise either the plaintiff would be precluded from recovering dam- 
 ages to the full extent of the injury, or the defendant would not be suffi- 
 ciently apprised by the declaration of the extent of claim ho would have 
 to answer. And with respect to pleas in bar, the statute (k) provides 
 [•228] *that "a defendant or tenanjin an action, or a plaintiff in replevin, in 
 any court of record, may, with leave of the Court, plead as many several 
 matters thereto as he may think necessary for his defence." But the com- 
 mon law rule still affects each plea taken separately (1) and the statute 
 does not extend to replications or subsequent pleadings. 
 
 The doctrine of duplicity as it more immediately affects each part of 
 pleadings, will be fully explained, and illustrated by instances, when we 
 consider the particular properties of each division of the pleadings in a 
 cause. It may here be remarked that in general the objection of duplic- 
 ity can only be taken by special d&murrer (0 (2). And if a plaintiff re- 
 ply to a plea bad for duplicity, he must plead to each distinct material 
 matter in the plea (vw). Where to debt on simple contract in an inferior 
 Court, not of record, viz. the County Court, in which double pleas are 
 not admissible, the defendant pleaded both the general issue and a set-off 
 and the plaintiff treated the latter as a nullity and replied only to the 
 first, and obtained a verdict and judgment, it was held on a writ of false 
 judgment, that as the defendant could not plead double, and the first plea 
 was complete in itself, the second was surplusage, and that the plaintiff 
 was justified in taking no notice of it, and the judgment was therefore af- 
 firmed (w). 
 
 _7thly. Ob- rpjjg statement of immaterial or irrelevant matter or allegationsj is not 
 ^n^e^g." only censured, as creating unnecessary expense (o), but also frequently af- 
 sary state- fords an advantage to the opposite party, either by affording him matter of 
 ments. objection on the ground of variance, or as rendering it incumbent on the 
 party pleading to adduce more evidence than would otherwise have been ne- 
 cessary. It is therefore of the greatest importance in pleading, to avoid 
 any unnecessary statement of facts, as well as prolixity in the statement of 
 those which may be necessaj-y (j)'). If a party take upon himself to state in 
 pleading a particular estate, where it was only required of him that he should 
 show a general or even a less estate, title or interest, the adversary may 
 traverse the allegation, and if it be untrue, the party will fail (3). Thus 
 a general freehold title Hberum tenementum, may be pleaded either in 
 
 (i) See 1 S^und. 58, n. 1 and ib. n. a. ; and (») Chitty v. Dendy, 1 Har. & Wol. 169. 
 
 pott. (0) Cowp. 665, 727; Dougl. 668, 669. 
 
 (k) 4 Ann. c. 16, s. 4. The decisions upon (p) 1 Saund. 238, n. 2; 346, note 2; 2 Id. 
 
 the statute are noticed hereafter. 206, n. 22, 366 ; note 1 ; Steph. 1st edit. 419 ; 
 
 (I) Saund. 837 a, note 3. 2d edit. 467; 1 M. & Sel. 204. 
 
 (m) 1 Ventr. 272; Stephen 2d edit. 327. 
 
 (1) Vide King v. Harrison, 15 East, 615. 
 
 (2) Walker v. Sargent, 14 Vermont, 247; Franklin Bank v. Bartlett, Wright, 741; Onion v. 
 Clark, 18 Vermont, 363; Loway v. Bailey, 7 Blackf. 599. Cunningham v. Smith, 10 Grattan, 
 (Virg.) 255, So argumentativeness in pleading, • Qaimby t>. Melvin, 8 Foster, (N. H.) 250. 
 
 (3) Vide Turner v. Eyles, 3 Bos. & Pul. 456. PhUIips' Ev. 158, Smitb v. Casey, 3 Campb, 
 461. Peppin v. Solomons, 5 Term, 497, 498. 
 
Mb pacts necessary to be stated^ 22§ 
 
 trespass or in an avowry ia replevin, and under it the defendant may *» thb 
 
 prove an estate of freehold, either in fee, in tail, or for life (a') ; but if he '^°™ •"»■ 
 
 state, though unnecessarily, a seisin in fee of a particular estate or interest, be stated. 
 
 and the other side traverse the allegation, it must be proved as stated (r). 
 
 So in an action on the case against the sheriff for levying *under an exe- r *229 1 
 
 cution against the tenant, without paying the landlord a year's rent, if 
 
 the plaintiff, though unnecessarily, profess to set out the terms of the 
 
 tenancy as to the time of payment of rent, &c. and misdescribod them, the 
 
 variance will be fatal (s) (1). These are instances of material matter 
 
 being alleged with an unnecessary detail of circumstances or particularity. 
 
 The subject-matter of the averment is material and relevant, and the evil is, 
 
 that the essential and the immaterial parts are so interwoven as to expose 
 
 the whole allegation to a traverse, and the consequent necessity of proof 
 
 to the full extent to which it is carried by the pleading (2). 
 
 If, however, the matter unnecessarily stated be lOholhj foreign and 8tMy. Su* 
 irrelevant to the cause, so that no allegation whatever on the subject was andhre*ua- 
 neoessary, it will be rejected as surplusage, and it need not be proved (V) ; nanoyf 
 nor will it vitiate, (u) (3) even on a special demurrer (^x) ; it being a 
 maxim theit utile per inutile non vitiatur («/). As observed by Lord 
 Mansfield (z), " the distinction is between that which may be rejected as 
 surplusage, which might be struck out on motion, and what cannot. Where 
 the declaration contains impertinent matter, foreign to the cause, and 
 
 (9) Steph. 1st ed. 335; 2d edit. 370. Eing v. Roxbrough, 2 Tyr. 468; 2 Crom. & J. 
 
 (r) Dyer, 365; Willes, 102; 2 Sauad. 206, 418, S. C. contra, where the declaration stated 
 
 n. 22'. ■ a promise to intestate on the 2d of January, 
 
 (s) Dongl. 665; 8 East, 9. 1832, and yet stated that the grant of admin- 
 
 (0 Dukes V. Gosling, 1 Bing; N. C. 588. istration on the 11th of January, 1831, held 
 
 («) 1 T. R. 235; 4 Kast, 400; Gilb. C. P. bad on special demurrer; id. ibid.; and in 
 
 131, 132; Com. Dig. Pleader, C. 28; Bao. Ab. Hembrow v. Bailey, 3 Tyr. 152, it was held 
 
 Pleas 1, 4; Co. Lit. 203 b; 2 Saund. 801, n. thai surplusage in adding a special traverse 
 
 14; 5 East, 444; Heath's Maxims, 4; 4 M. & was demurable. So in Bishton v. Evans, ^ 
 
 Sel. 474, 475. The terms "impertinent" Crom. M. & Ros. 17, it was observed by Ald- 
 
 and "immaterial" are synonymous. Per erson, B., that the introduction of unnecessary 
 
 Best, J., 3 D. & R. 229. Matter immaterial, matter into issues is forbidden, in order to pre- 
 
 and which may be rejected as surplusage, vent the parties from being embarrassed. 
 
 will not make a pleading double, see Steph. 2d (,y) Com. Dig. Pleader, C. 29; Bac. Ab. 
 
 edit. 300. Pleas 1, 4; 3 Taunt. 139; 5 T. R. 496. 
 
 (a:) Co. Lit. 303 b.; 11 East, 62, 65; Steph. (z) Doug. 666. See 4 East, 100. 
 
 2d edit. 416; and 3 Bar. & Adol. 615; but see 
 
 (1) So, if in an action on a promissory note, not negotiable, but expressed to be for value re- 
 ceived (which is prima facie evidence of consideration,) the plaintiff unnecessarily set forth the 
 particulars in which the value consisted, he is bound to prove them precisely as laid. Jerome 
 V: Whitney, 7 Johns. 321. So, in an indictment for stopping the mail, a contract with the post- 
 master general to transport the mail was alleged, and it was held that the contract must be 
 proved, although the indictment might have been good without such an allegation. United 
 States V. Porter, 3 Day, 283. So in an indictment for burglary, in the house of J. D. with 
 intent to steal the goods of j. W. , and it appeared in evidence that no such person had any 
 goods in the house, but that the name of J. W. was put by mistake for J. D., the Judges held 
 that it was material to state truly the property of the goods, and on account of this variance 
 the prisoner was acquitted. Jenks's Case, East's P. C. 614. Phillips' Ev. 160. 
 
 (2) See the Commissioners v. Brevard, 1 Brevard, 11. , 
 
 (3) Vide Thomas v. Roosa, 7 Johns. 462; Woodford v. Webster, 3 Day, 372. Tuoker w. 
 Randall, 2 Mass. 283; Chapman v. Smith, 18 Johns. 80; Wilmarth v. Mountford, 8 Serg. & 
 Rawle, 124; 8 Cow. 42; Callison v. Semons, 2 Porter, 146; Evans v. Watrous, ib. 205. Sur- 
 plusage in general will not vitiate a pleading. Russell v. Rogers, 15 Wendell, 361 ; Hamp- 
 shire Manuf. Bank v. Billings, 17 Pick. 87; Lord v. Tyler, 14 Pick. 156; Buddington, 20 Pick. 
 477, Watertown v. Draper, 4 ib. 166; .Freeland v. M'CulIough, 1 Denio, 414; Castles v. 
 M'Math, 1 Alabama, '326; Bequette v. Lasselle, 5 Blackf. 443; New Brunswick Co, v. Tiers; 4 
 Zabr. (N. Jer.) 697; Perry v. Marsh, 25 Alabama, 669. 
 
229 OP PLEADING IN GENEBAL, 
 
 J. iH» which the master, on a reference to him, woiild strike out, (irrelevant 
 lAdisKE. poyenants for instance,) that will be rejected by the court, and need not 
 ^^to be proved (1). But if the very ground of the action be mis-stated, that 
 -will be fatal, for then the case declared on is different from that which is 
 proved, and the plaintiff must recover secundum allegata et probata "(2). 
 Thus in an action against the marshal for an escape, the declaration, after 
 stating the original judgment, set out a judgment in scire facias reviving 
 the original judgment with the usual award of execution, as appeared by 
 the record, and then averred that " thereupon" the party was committed; 
 it was decided that the allegation of the judgment in scire facias was im- 
 material, and need not be proved (a). Mr. J. Bayley observed, " a party 
 [ •230] is not bound to prove an immaterial allegation, *unless he has, by his 
 mode of pleading, so connected it with a material allegation as to make 
 the latter depend upon it." And Mr. J. Holroyd said', " If the plaintiff 
 state, as a cause of action, more than is necessary for the gist of the action, 
 the jury may find so much proved, and so much not proved ; and the Court 
 would be bound to pronounce judgment for the plaintiff upon that verdict, 
 provided that the facts proved constituted a good cause of action." So in 
 trespass for driving cattle, where the defendant justified that he was law- 
 fully possessed of the close, and took the cattle damage feasant therein ; 
 and the plaintiff replied specially, title in another, and that he entered by 
 his command, and unnecessarily gave color to the defendant ; it was de- 
 cided that this did not render the replication insufficient, because the in- 
 troduction of unnecessary words of form will not vitiate the rest of a re- 
 plication which is good (6) (3). 
 
 In an action of replevin the defendants avowed the taking as a distress 
 for rent due to one of them, (Sharr), under a demise, at .£20 a year, pay- 
 able quarterly, and the avowry averred that " because £10 of the rent 
 aforesaid for two quarters, &c. at the time when, &c. was due from the 
 defendant, (instead of plaintiff,) to the said Sharr, defendants avow, &c. 
 To this there was a special demurrer on account of the mistake of the word 
 defendant for plaintiff. The court held, that the mistake was not a ground 
 of demurrer, for the matter demurred to was superfluous and repugnant. 
 They observed that it would have sufficed to have said that £10 of 
 the rent aforesaid was due, without saying from whom to whom, as that 
 was a conclusion from the previous allegation ; and that surplusage is 
 never assignable as cause of demurrer (c). The more recent decisions, 
 
 (a) 4 B. & C. 380. scriptiou (in & plea in abatement) of the 
 
 \b) 1 East, 212. privilege of an attorney to be sued by bill 
 
 (c) Pierce v. Sharr and another, E. B. in K. B., 9 East, 424; as mis-description in 
 
 7th June, 1827, before the three Judges, an action for a malicious prosecution, &e. of 
 
 Bushby for the plainlifF, Chitty for the de- the record of acquittal with regard to the style 
 
 fendant, MS. The following are instances of the Court, 2 Bla. bep. 1()50; 2 B. & C. 4, 
 
 of untrue allegations having been rejected 5; or of the time of acquittal, 9 East, 157; or 
 
 as surplusage, and therefore considered as in stating the judgment of discontinuance, 18 
 
 not prejudicing the case, viz. an untrue de- East, 547. A variance in stating the names of 
 
 (1) Vide Allaire v. Ouland, 2 Johns. Cas. 52. 
 
 (2) The text in the fourth edition, after the quotation from Lord Mansfield's opinion, is as 
 follows — " the distinction \i between immaterial and impertinent averments, the former must be 
 proved because relative to the point in question" — and Mr. Dunlap's note to the passage con- 
 tained a reference to the following authorities: Williamson v. Allison, 2 East, 451, 462; Wilson 
 V, Codman's Exr. 8 Cranob, 193; Livingston v. Swanwick v. Ball. 800; Feter v. Cocke, 1 
 Wash. 257;PhiUip8'8ET. 158, 159. 
 
 (8) Aliter where it constitutes a material part of the plaintiff's oose. Bevan v. Jones, 6 
 DowL & EyL 488. 
 
THE PACTS NECBSSABY TO BE STATED. 230 
 
 howevef, established that surplusage in tendering an issue or in other part i- tbb 
 oi pleading' tending to embarrass the opponent, may be assigned specially '^"^^^^ 
 as cause of demurrer (rf). be siated. 
 
 It is a material part of the rule respecting superfluous allegations, *that r *231 ] 
 if the party introducing them show, on the face of his own pleading, that 
 he has no cause of action, his pleading will be defective. Thus in an ac- 
 tion upon the case for a disturbance of an easement, &c. it is suificient in 
 many cases to allege a possessory right, but if the plaintiff, instead of so 
 doing, describe and rely upon a defective title, the declaration is bad (e). 
 
 So, though the superfluous or irrelevant allegation be repugnant to what 
 was before alleged, it is void and will be rejected (1) and whatever is re- 
 dundant, and which need not have been put into the sentence, and contra- 
 dicting, what was before alleged, will not in general vitiate the pleading 
 (/). For, per Holt, 0. J. (g-), "where matter is nonsense, by being con- 
 tradictory, and repugnant to something precedent, there the precedent 
 matter which is sense, shall not be defeated by the repugnancy which fol- 
 lows, but that which is contradictory shall be rejected." As an ejectment, 
 where the declaration is of a demise the second of January, and that the 
 defendant postea scilicet on the first of January, ejected him ; here the sci- 
 licet may be rejected as being expressly contrary to the postea. a.ui the 
 precedent matter (A) (2). So where in assumpsit by executors, in a count 
 for money paid by the testator, B. B. for the defendant's use, it was alleged 
 that " the defendant being indebted, he the said B. B. promised to pay the 
 said B. B." it was decided on special demurrer, that the words " he the 
 said B. B." might be rejected as surplusage (i). But a material allega- 
 tion, sensible and consistent in the place where it occurs, and not repug- 
 nant to any antecedent matter, cannot be rejected, merely on account of 
 there occurring afterwards, in the same pleading, another allegation incon- 
 sistent with the former, and which latter allegation cannot itself be reject- 
 ed (A;) ; and if by the rejection of the repugnant matter, the pleading 
 Would be left without an allegation of time, or other material matter, 
 though in some instances the pleading might be aided by verdict, yet it 
 would be defective on special demurrer {I). 
 
 The general rule is, that a pleading inconsistent with itself, or repug- 
 nant, is objectionable (ot) (3). In trespass, the plaintiff declared for 
 
 the suitors of the County Court in averring in ley, 3 Tyr. 152; Bishton v. Evans, 2 Camp, 
 
 case against the sheriff for taking insufficient M. & Bos. 16, 17. 
 
 sureties in a replevin bond that the tenant ap-^ (e) 1 Salk. 363, 365; Com Dig. Pleader, C. 
 
 peared at the next County Court held before the 29. 
 
 suitors, considered immaterial, 2 B. & C. 2 (/) Gilb. C. P. 131, 132J Co. Lit. 303 b; 
 
 (616). The misdescription of judgment irith 10 East, 142. 
 
 regard to the term in which judgment was re- (,g) 1 Salk. 324, 325 ; Vin. Ab. Nonsense, A. 
 
 covered is not material, and may be repudiated pi. 3. 
 
 as surplusage, if the record be mere induce- (A) Id.; 5 East, 255; and see a^i^e, 229. 
 
 ment, as in case for a fiilse return, &c., 3 B. & (i) 11 Moore, 552. 
 
 C. 2. Distinction between allegations of mat- (A;)(6East, 254, 182, 133;10East, 142;Vin. 
 
 ter of substance, and allegations of matter of Ab. Nonsense, A. pi. 3. 
 
 description; the latter only to be literally (Z) Gilb. C. P. 131, 132. 
 
 proved, 8 B. & C. 4. Many other instances (m) Steph. on Pleading, 2d edit. 420. In- 
 
 will be hereafter noticed in considering the stances of repugnancy in stating time and 
 
 doctrine of variances. place, 14 East, 291. 
 (d) Ante, 229, note (x). Hembrow v. Bai- 
 
 (1) Hapgood V. Houghton, 8 Pick. 451; White v. Snell, 9 Pick. 16. 
 
 (2) The declaration on a note stated that it bore date "on the twenty-seventh day of April, 
 one thousand eighteen hundred and thirty-seven;" the words "one thousand" were held to be 
 mere surplusage, and no ground for arresting judgment.* Bequette v. Lasselle) 6 Blackf. 448. 
 
 (3) Barber v. Sumners, 6 Blaokf. 839. 
 
231 OF PLEADING IN GENERAL, 
 
 I. THE taking and carrying away certain timber, lying in a certain place for the 
 CE33AKTIO coHipletion of a house " then lately built :" this declaration was considered 
 BE STATED, bad for repugnance, for the timber could not be for the building of a house 
 already built (m). So if a count in assumpsit lay a promise to pay a spe- 
 cific sum, if the plaintiff would provide E. with necessaries, and also a pro- 
 [ *232 ] mise to pay so much as the plaintiff *reasonably deserved to have on the 
 same account, such count is bad, not only for duplicity, but also for incon- 
 sistency or uncertainty (o). It is also where the repugnancy is contained 
 in an allegation capable of rejection as superfluous, or where there is a 
 prior averment upon the subject, which is adequate to the support of the 
 case, that it becomes of no moment, and unobjectionable even upon de- 
 murrer. In some cases the Courts will on motion order superfluous mat- 
 ter to be struck out of the pleadings, and if there 'be any vexation, will 
 make the party inserting it pay the costs of the application (^p). 
 
 m M0BE8 II. THE MODES OP STATING THE PACTS. 
 
 07 STXIUfO 
 VAOTS, 
 
 Having considered what facts are to be stated in pleading, we have now 
 to consider the manner in which they should be stated. The facts which 
 constitute the cause of action, or ground of defence, should be stated logi- 
 cally in their natural order ; as on the part of the plaintiff, his right, the in- 
 jury, and the consequent damage, and these with certainty, precision, and 
 brevity (^q). A general statement of facts which admits of almost any 
 proof to sustain it is objectionable (r). With regard to the language to be 
 • adopted, as observed by Lord C. J. De Grey (s), " there are cases where 
 a direct and positive averment is necessary to be made in specific terms, 
 as where the law has afflxed and appropriated technical terms to describe 
 a crime, as in murder, burglary, and others ;" so in trespass, the words vi 
 et armis, and contra pacem are necessary ; " but except in particular oases, 
 where precise technical expressions are required to be used, there is no 
 rule of law that other words should be employed than such as are in ordi- 
 nary use, or that in pleadings a different sense is to be put upon them than 
 what they bear in ordinary acceptation" (Jt). Thus, though in a declara- 
 tion for slander it is usual to state that the words were "maliciously" 
 spoken, the word "falsely" has been held to be sufficiently expressive of a 
 malicious intent (u). However, where there has been a long-established 
 form of pleading, applicable to the facts of the particular case, it should 
 in general, for th§ sake of certainty and uniformity, be adopted, and the 
 Courts censure any unnecessary deviation from it(x). As observed by 
 
 (ra) 1 Salk. 218. (0 Per Lord Ellenborough, 5 East, 259, 
 
 (o) 7 Mod. 148. 260; 2 East, 33; 2 Bla. K«p. 843; anU, 219. 
 
 (p) See Tidd, 9th ed. 616, 617, 1132; 1 B. (u) 1 Saund. 242 a, note (2); 1 M. & Sel. 
 
 & B. 281; 1 Bla. Kep. 270; Stephen, 2d edit. 304. 
 
 467. (i) Co. Lit. 808 a, b; 1 Hale, 1, L. 301, 
 
 (?) Dougl. 666, 667; Sir W. Jones, vol. iv. 302; 6 East, 351 to 363; Cro. Jac. 386; 1 M. 
 
 p. 34, 4th edit.; see Stephen on Pleading, 378 & Sel. 439, 441; and see anle, 96, 97; 8 Co. 
 
 to 405. 48 b; Com. Dig. Abatement, G. 7; Plowd. 
 
 (r) 1 M. Sel. 441; 8 Id. 114; 1 M. & M. 123; 2 B. & P. 577; 3 B. & Aid. 458; Steph. 
 
 218; 11 Price, 235. Ist fed. 8915 2d ed. 484. 
 
 («) Cowp. 688. 
 
MODES OF STATING FACTS. * 233 
 
 Lord Coke, it is safer to follow *good precedents, for nihil simul invert- n. modes 
 turn est, et perfectum (?/) ; and there are cases where, although the "^^^^^^ 
 Courts have overruled a demurrer, yet they have directed the plaintiff to 
 amend, so that Ao deviation from the usual form shall appear to have been 
 sanctioned (2). ' The statute (a) requires, that all the pleadings and 
 proceedings shall be in English ; a regulation which, it has been observed, 
 has occasioned the literature of the inferior part of the profession to re- 
 cede (i). 
 
 The principal rule, as to the mode of stating the facts, is, that they Of the de- 
 must be set forth -with, certainty (^c} {1} ; by which term is signified, a ^™j ?^. 
 clear and distinct statement of the facts which constitute the cause of ac- requireZ 
 tion or ground of defence, so that they may be understood by the party 
 who is to answer them, by the jury who are to ascertain the truth of the 
 allegations, and by the Court who are to give judgment (^d'). 
 
 In Dovaston v. Payne (e), Mr. Justice Buller observed, that certainty 
 or precision in pleading has been stated by Lord Coke (/) to be of three 
 sorts, viz. 1st, certainty to a common intent ; 2dly, to a certain intent in 
 general ; 3dly, to a certain intent in every particular ; and that though 
 these distinctions had been treated by Mr. Justice Ashton as a jargon of 
 words without meaning, they had long been made, and ought not alto- 
 gether to be departed from. 
 
 By a certainty to a common intent, is to be understood that when words 
 are used which will bear a natural sense, and also in an artificial one, or 
 one to be made out by argument or inference, the natural sense shall pre- 
 vail ; it is simply a rule of construction, and not of addition ; common 
 intent cannot add to a sentence words which are omitted (§•). This de- 
 scription of certainty is sufficient in a plea in bar (A) (2). It is of the 
 lowest degree, and yet we shall find, that in some instances, a statement 
 which will suffice in a declaration will not in a plea ; thus in a declara- 
 tion on a contract to pay the debt of a third 'person, it is not necessary 
 to show that it was in writing (3), but it is said to be otherwise in a 
 
 (2/) Co. Lit. 230 a. " Precedent and prao- that can be used. See in general, Steph. 2d 
 
 tice ought to have great weight in the consid- edit. 381. 
 
 eration of all points arising upon the propri- (rf) Cowp. 682; Com. Dig. Pleader, C. 17; 
 
 ety of forms, and in all legal instruments." Co. Lit. 303; 2 B. & P. 267; another reason 
 
 Per Eldon, C., 11 Price, liJS. is, that in a second action for the same cause 
 
 («) 1 B. & P. 336; Barnes, 167. the defendant may be better able to plead a 
 
 (0) 4 Geo. 2, c. 26. former recovery, &c. 13 East, 107. 
 
 (6) 1 M. & Sel. 710, 711. (e) 2 Hen. Bla. 630; Dougl. 158, 159. 
 
 Ic) Cowp. 682; Hob. 295. It was observed (/) Co. Lit. 303 a; 5 Co. 121. 
 hf Lord C. J. De Grey, in Rex i>. Home, {g) 2 Hen. Bla. 630; 1 Saund, 49, note 1, 
 
 Cowp. 682, that we have no precise idea of (A) Id.; Cowp. 682; Dougl. 158 ; 5 Co, 
 
 the signification of the term "certainty," 121; Co. Lit. 303 a; Com. Dig. Pleader, C. 
 
 which is as indefinite in itself as any word 17; Steph. 2d edit. 423. 
 
 (1) Vide Carpenter ». Alexander, 9 Johns. 291. Ward v. Clark, 2 Johns. 12; Jacobs v. 
 Kelson, 3 Taunton, 423. 
 
 (2) Aco. Spencer v. Southwiok, 9 Johns. 314. In a plea certainty to a common intent is suf- 
 ficient. Bockfeller v, Donnelly, 6 Cowen, 623; Hildreth v. Baker, 2 Johns. Cases, 339, 
 
 The statute of Maine providing that brief statements may be filed with the general issue, must 
 be regarded as requiring a specification of matter relied upon in defence, aside from such as 
 would come under the general issue, to be certain and precise to a common intent, as much so 
 sa if inserted in a special plea; and no proof is admissible, except in support thereof, or of the 
 defence under the general issue. Washburn v. Mosely, 22 Maine, 160. See Chase v. Fisk, 16 
 Maine, 132; Brickett v. Davis, 21 Pick. 404. See post, 473, 474, note. 
 
 (3) Vide ante, 228. Elting v. Vanderlyn, 4 Johns. 237, ibid. 339, n. a. The contract is 
 required to be stated more precisely in a plea of usury, than in a declaration in a qui tarn suit, 
 iKcause the facts are within the defendant's l;nowledge. Lawrence i>, Kines, 10 Joluis, 142. 
 
*233 OP PLEADING IN GENERAL. 
 
 n. MODE plea (0 ; and in a plea, the statement of a deed by way of recital " tes- 
 OF BTATiNQ ^^^j^^ exislit," instead of a direct allegation, is insufficient; though it is 
 
 '■*f™' otherwise in a declaration {k'). 
 certainty *Certainty to a certain intent in general is a greater degree of certainty 
 required, than the last, and means what upon a fair and reasonable construction 
 [ *234 ] may be called certain, without recurring to possible facts (1) which do 
 not appear (2) ; and what is required in declarations (3), replications, 
 and indictments in the charge or accusation, and in returns to writs of 
 mandamus (Z). The charge, we have seen, must contain such a descrip- 
 tion of the crime, &c. that without intending any thing but what appears, 
 the defendant may Icnow what he is to answer, and what is intended to be 
 proved, in order that the jury may be warranted in their verdict, and the 
 Court in the judgment they are to give(OT). 
 
 The third degree of certainty, is that which precludes all argument, in- 
 ference or presumption against the party pleading (n) ; and, as it has 
 been well expressed, is that technical accuracy, which is not liable to the 
 most subtle and scrupulous objection, so that it is not merely a rule of 
 construction, but of addition : for when this certainty is necessary, the 
 party must not only state the facts of his case, in the most precise way, 
 but add to them such facts, as show that they are not to be controverted, 
 and as it were, anticipate the case of his adversary (o). It has been 
 said, that this description of certainty has been rejected in all cases, as 
 partaking of too much subtlety (/>) ; however, Buller, J., expressed a dif- 
 ferent opinion ; and it appears, that it obtains in the case of estoppels (g), 
 and in pleas which are not favored in law, such as the plea of alien enemy, 
 in which it must be stated, not only that the plaintiff is an alien, but that 
 he came to England without letters of safe conduct (4) from our king (r). 
 The application of the rules as to the necessary certainty in the various 
 parts of pleadings, will be better considered, when the qualities of the 
 declaration and other parts of pleading are stated. It must be confessed 
 that it is frequently difficult in practice to apply the rules to cases which^ 
 occur. 
 
 Less certainty is requisite when the law presumes that the knowledge 
 of the facts is more properly or peculiarly in the opposite party (*). 
 Therefore, where an action on the case for not repairing a private road 
 leading through the defendant's ground, the declaration stated that the 
 defendant, by reason of his possession, ought to have repaired, &c., on 
 general demurrer it was objected, that it did not show by what right of 
 
 ({) 1 Saund. 276 0, note (2) ; Sir T.Raym. (?) 2H. Bl. 530; Doug. 159; Com. Dig. 
 
 450; ante, 222. Estoppel, E. 4; Co. Lit. 362 b; See 2 B. & Aid. 
 
 (fe) 1 Saund. 274, n. (1). 662. 
 
 (I) Dougl. 159; 13 East, 107. (r) 8 T. R. 167. 
 
 (m) Cowp. 682. («) 13 East, 112; Com. Dig. Pleader, C. 26; 
 
 (n) Co. Lit. 352 b; Dougl. 159. 8 East, 85; 8 M. & Sel. 14; anU, 222; Steph, 
 
 (o) Lawes on Plead. 54, 55. 413, 2d ed. 
 0)) Cowp. 682. 
 
 (1) Vide Spencer ». Southwick, 9 Johns. 817. 
 
 (2) Buller D.Hampton, 5 Conn. 428. , , , . 
 (8) Bed Vide Hildreth o. Becker, 2 Johns. Cas. 839, where it is said, that in a declaration, 
 
 certainty to a common intent is sufficient; Rex v, Home, Cowp. 082, is cited, which authority 
 however, establishes directly the reverse. And see Coffin v. Coffin, 2 Mass. 868, per Pabsons, 
 C. J., that certainty to a common intent is sufSoient. 
 
 (4) Vide Clark v. Morey, 10 Johns. 70. That this allegatipn is not alone sufficient, vide a. 
 ibid. Russell v. Skipwith, 6 Binn. 247. See also Bagwell v. Babe, 1 Band. 270, and Com v. 
 Culiek, 5 Halst. 828. 
 
MODE OP STATING PACTS. *235 
 
 obligation the defendant -was bound to repair, and that he was not bound «■ mode 
 of common right merely as the occupier, but the Court held that the dec- "''IJ^™'"' 
 laration was sufficient ; and Buller, J., *said, the distinction is between of the ' 
 cases where the plaintiff lays a charge upon the right of the defendant, certainty 
 and where the defendant himself prescribes in right of his own estate; in required. 
 the former case the plaintiff is presumed to be ignorant of the defend- 
 ant's title, and cannot therefore plead it ; but in the latter, the defendant 
 knowing his own estate, in right of which he claims a privilege, must set 
 forth such estate (0 (1). So, in a declaration against the assignees of a 
 lease it is sufficient to aver generally that " the remainder of the term 
 and estate of the lessee, &c. came to the defendant by assignment," as 
 the plaintiff cannot reasonably be- presumed to know the particulars of the 
 defendant's title (m). So, less certainty is required, and general words 
 are sufficient, where it is to be presumed that the party pleading is not ac- 
 quainted with the minute circumstances {x). Thus, where a person's 
 house is burnt, general words are sufficient in the description of goods 
 thereby destroyed, because he is not presumed to be able to set forth with 
 certainty the goods destroyed (y). So, in trespass for breaking, &c. a 
 close with cattle and eating the plaintiff's peas there, the quantity eaten 
 need not be stated (z). But in a declaration on the Statute of Hue and 
 Cry the plaintiff must state the particulars of his goods taken (a). 
 
 It is also a rule of pleading, that where a subject comprehends multi- 
 plicity of matter, and a great variety of facts, there, in order to avoid 
 prolixity, the law allows general pleading (Z>) (2). Thus an allegation 
 in a declaration for necessaries supplied to a third person, at the defend- 
 ant's request, or in a replication to a plea of infancy, that " necessaries '* 
 were supplied, is sufficient, without showing specially what the necessa- 
 ries were (c) . And in charging in a declaration, that a party has not ac- 
 counted for sums he received in any particular capacity from time to time, 
 it is sufficient to allege generally that from time to time he received divers 
 sums amounting to a certain sum, not stating on what particular days, or 
 from named persons, and hath not accounted, &c. (rf). As there are 
 many instances in which this rule does not apply, especially in jurisdictions 
 of slander, and very often in pleas of performance, we will hereafter give 
 the rule further consideration in treating of the particular parts of plead' 
 ing (e). 
 
 (0 3 T. R. 766, 2d ed. 400. "No greater particularity ia re- 
 
 (u) 5 B. & C. 482. quired than the nature of the thing pleaded 
 
 (x) Steph. 2d edit. 411 to 41S. vrill conveniently admit." Stephen, 2ded. 411. 
 
 ly) Bac. Ab. Pleas, B. 5; 1 Keb. 825; Plowd. Vide the instances there put in illustration of 
 
 85;sei2 vicfe2Saund. 379. this rule; and 8 Bing. 61; ante, 225, as to 
 
 (z) Bac. Ab. Pleas, B. 5. pleading a custom or right at "reasonable 
 
 la) 2 Saund. 379. times, &c." 
 (4) 1 T. R. 753, per Buller, J., 2 Saund. (c) 8 Bulstr. 31; Carth. 110. 
 
 411, n. 4; 1 Id. 116, 117, n. 1 Bac. Ab. Pleas. (d) 1 B. & P. 640; 8 T. R. 459; 2 Burr. 
 
 1, 3, B. 5; Com. Dig. Pleader, C, 42, E. 26; 772; Stephen, 2d ed., 402. 
 
 1 B. & P. 640; Co. Lit. 808 b, 804; Stephen, (e) Vide Index, "Certainty." 
 
 (1) In an action against the surety on an administration bond, it is sufficient for the plaintiff 
 to state that goods, chattels, and sums of money to a large amount, to wit, the amount of &c, 
 had come into the hands of the administrator, which he had converted to his own use; the cred- 
 i&r not being presumed to know precisely what assets the administrator had, and this fact ly- 
 ing more properly in the knowledge of the defendant. The People a.. Dunlap, 13 Johns. 487^ 
 
 (2) Vide Hughes v. Smith, and Miller, 6 Johns. 173. So, in declaring on a policy of insur- 
 ance on specified goods, it is sufBoient to aver that divers goods were put on board. D. S^moiji 
 V. Johnson, 2 New Rep. 77. 
 
 Vol. I. 34 
 
*28,6 OP PLEADING IN GENERAL. 
 
 *It will be explained in a subsequent part of the work, that much par- 
 '^ ™^™'° ticularity is required in the statement of special damages. 
 
 II. MODE 
 P STAUK 
 ' lAOTS. 
 
 Of the When the facts are not really stated with sufficient certainty, the intro- 
 
 certainty duction of the word '■'■certain" is of no ayail (/). Thus a declaration in 
 required, ^gbt for a sum of money forfeited " by virtue of a certain JDy-law," or 
 "for money due on a certain bond," without stating it, is insufficient (§•). 
 So where the declaration stated that in consideration that the plaintiff 
 had sold to the defendant a " certain " horse of the plaintiff, at and for " a 
 certain quantity of certain oil," to be delivered within a " certain time," 
 which had elapsed, though it was holden that the declaration was good 
 after verdict, it was considered that it could not have been supported on 
 demurrer (A), And a justification in trespass, "by virtue of a certain 
 writ," <fec. but no setting it forth, is insufficient (i) (1). So the words 
 " duly," " lawfully," " sufficient," &c. without showing the matter of fact 
 with convenient certainty, are seldom of avail in pleading (A;) (2). So a 
 plea justifying an imprisonment, on the ground of a suspicion of felony, 
 should state the ground of suspicion, and the averment, that the plaintiff 
 " suspiciously" did such an act, is not sufficient (J). But in some cases 
 the wrong complained of, without showing the particular acts, may be 
 sufficient to designate that to be a crime or injury, which might otherwise 
 stand indifferent ; as in an action on the case for unlawfully procuring a wifg 
 to leave her husband (to). The want of certainty (m), and an ambiguous 
 expression in a declaration (o), are cured by verdict. 
 
 To these rules affecting the mode of stating facts, may be added the 
 following, which are ably collected and observed upon by Mr. Serjeant 
 Stephen, in his valuable work on Pleading (p); viz. that pleadings must 
 not be insensible (^q) or repugnant (r) ; nor ambiguous or doubtful in 
 meaning (s) ; not argumentative (<) ; nor in the alternative. However, 
 the recent pleading rules of Hill^ T. 4, W. 4, reg. I. permit in one case 
 r *237 1 ^"^ alternative allegation, as that several named *persons, " or some or 
 one of them were, or was" interested in the property insured by a poli- 
 cy of insurance, which exception was introduced in order to avoid seve- 
 
 (f) 13 East, 102. Astothe word<'rea9on- (o) 1 B & C. 297; Cowp. 825. 
 
 able " 3 Bing. 61, 67. (p) Ist ed. 378 to 392; 2d ed. 420 to 434. 
 
 (g) IB. & P. 98, 102; see 2 B. & P. 120. (?) Com. Dig. Pleader, C. 23; 1 Salk. 324; 
 13 East, 116. Vin. Ab. Nonsense, A. pi. 3; see, however, 
 
 (ft) 2'b. & p. 265. ante, 229. 
 
 (i) 1 Saund.298, note 1. (r) See ante, 231. 
 
 (k) 9 Co. 25 a; 1 Burr. 540; Dougl. 79; 7 («) Co. Lit. 303 b; Telv. 36; 2 H. Bl. 530; 
 
 B. & C. 468; 8 Id. 124. In an action on a 5 M. & Sel. 38; 1 Bar. & Cress. 297; 3 Id- 
 
 bond conditioned to perform an award to be 192; and also examine Stephen, 2d edit. 421. 
 
 made under the hands of referees, an averment Thus in trespass, a plea that the close was de- 
 
 that they "duly made their award," is not suf- fondant's freehold, not stating " at the time of 
 
 floient Everard d. Patterson, 6 Taunt. 645; the trespass," is bad. Com. Dig. Pleader, E. 5. 
 
 2 Marsh. 804, S. C; see 16 East, 39; 7 B. & (0 Bac. Ab. Pleas, &c. I. 5; Com. Dig. 
 
 C.800. (E. 3); Co. Lit. 303 a; 5 B. & A. 215. In 
 
 (I) 4 Taunt. 34' 2 Bing. 623; Steph. 2ded. trespass de bonis asportaiis, a plea that plain- 
 
 386 387. ' *'*^ never had any goods is bad. Boot. pi. 41 ; 
 
 (m) Willes 577 Dyer, 43 a. Other instances, Stephen, 426; 
 
 (n) 2 B. &'P. 265; 3 Bing. 61. 2d ed.; 10 East, 205. 
 
 (1) Sed vide Bennet v. Pikley, 7 Johns. 249. 
 
 (2) So, in false imprisonment, the defendant attempted to justify the arrest on a suspicion 
 of forgery, and stated in his plea that the plaintiff was suspiciously possessed of a note, 
 and disposed of it in a suspicious manner, and in a suspicious manner left England and went 
 to Scotland ; the plea was held too general, and that the causes of suspiciop ought to have beeA 
 set forth in certainty, Mure v. Kaye, 4 Taunt. 84. See also Van Nessn. Hamilton, 19 Johns, 
 
MODE OJ* STATINGf PACTS. 237 
 
 ral-cofunts varying the statement of the interest in the subject insured (m). "• mode 
 The other are rules, that pleadings must not be hypothetical (y') ; nor by "^j^cra"" ' 
 way of recital, but positive (x), aud that things should be stated accord- gf theoeF- 
 ing to their legal effect or operation (y'). These rules, indeed, will be tainty re- 
 more fully considered hereafter in those parts of the work which treat of quired- 
 the qualities of declarations and the other' parts of pleading in particular. 
 
 III. THE RULES OF CONSTRUING PLEADINGS. m. bcles 
 
 OF OON- 
 STBUOnON. 
 
 It is a maxim in pleading, that everything shall be taken most strongly 
 against the party pleading (z) or rather, that if the meaning of the 
 words be equivocal, and two meanings present themselves, that construe-" 
 tion shall be adopted which is most unfavorable to the party pleading (a) ; 
 because it is to be presumed that every person states his case as favorably 
 to himself as possible (6), (1). But in applying this maxim, the other 
 rules must be kept in view, and particularly those relating to the degree 
 of certainty or precision required in pleading (c). The maxim must be 
 received with this qualification, that the language of the pleading is to 
 have a reasonable intendment and construction (rf) (2) ; and where an 
 expression is capable of different meanings, that shall be taken which 
 will support the declaration, &c. and not the other, which would defeat 
 it (e) (3). Thus, in debt on bond, conditioned to procure J. S. to sur^ 
 render a copyhold " to the use of the plaintiff," a plea *that J. S. sur- [ *288 ] 
 rendered and released the copyhold to the plaintiff in full Court, and that 
 the plaintiff accepted it, without alleging that the surrender was " to the 
 plaintiff's use," is suf&cient ; for this shall be intended (/). So in debt 
 
 («) Beg. Gen. Hil. Term, 4, W. 4. Plead- (z) 1 Saund., 259, note 8; 2 B. & P. 155; 
 
 ings in Particular Actions, reg. 1. Co. Lit. 303 b; Yelv. 36; 2 Hen. Bla. 580; 5 
 
 (v) 1 B. & P. 312; 3 M. & S. 114; Steph. M. & S. 38, 40; Stephen, 1st ed. 379; 2d edit. 
 
 430, 2d ed. If "any" is bad on special de- 421; and cases there collected; 
 murrer, Gould v. Lashbury, 4 Tyr. 863. (a) Per BuUer, J., 2 Hen. Bla. 530; 6 B, 
 
 Therefore a plea to assumpsit for goods sold & C. 302; Steph. 2d edit. 421. Instances of 
 
 and delivered and on an account stated, that this in a plea, id, and post. 
 the defendant was discharged from the causes (6) Co. Lit. 303 b. Per Parke, B., in 
 
 of action in the declaration mentioned, ^ a»!/ Pearce ». Champneys, 4 Dpwl. 276. The same ; ^^ 
 
 such there were, was held bad on special de- rule holds, in construing deeds, &c. ; Piatt on 
 
 murrer, as hypothetically pleaded, and as not Cov. 141. » 
 
 directly confessing aud avoiding the alleged (c) Ante, 233; as to rule of reddendo shv- 
 
 causes of action, id. ibid. gula singulis, see 2 Cambp. 139. 
 
 (i) Bac, Ab. Pleas, &c. (B); 4 Steph. 1st (d) Com. Dig. Pleader, C. 25; 1 Lev. 190; 
 
 ed. 888; 2d ed. 431. Mr. Serjeant Stephen, ^er Lord Ellenborough, 5 East, 259, 260; 12 
 
 states, as instances of this rule, that it is bad Id. 263. 
 
 in trespass, to charge that " whereas" the de- (e) 4 Taunt. 492; 1 Salk. 325; 5 East, 244, 
 
 fendant assaulted, &o. ; and that in a plea, in 257 ; 12 East, 279. As to the effect of "pra- 
 
 stating a grant by deed, it should not be stated dictus," and "idem," and construction of 
 
 that " it was witnessed" by the deed that the them, see 11 East, 513. So in the case of a 
 
 party granted. deed, exposition shall be made of it so as to 
 
 (y) Bac. Ab. Pleas, &c. 1, 7 ; Com. Dig. support rather than annul the transaction ; 
 
 Pleader. C. 37; 2 Saund. 97 b, n. 2; 1 Id. ut res magisvaleatguam pereat; Shep. Touch. 
 
 235 b, note 9; 3 B. & A. 66; Steph. 1st ed. 166; 3 Atk. 136. 
 389; 2d ed. 432. (/) Cro. Car. 6. 
 
 (1) Fuller V. Hampton, 6 Conn. 422, 423. Post, 545; Halligan v. Chicago & Kock Island R. 
 R. Co., 15 Illinois, 558; Ware v. Dudley, 16 Alabama, 742. 
 
 (2) Vide Hastings i>. Wood, 18 JohnS. 482. 
 
 (3) Pender v. Dieken, 27 Miss. (5 Gush.) 252. 
 
238 OP PLEADING IN genera!,. 
 
 in. ROTEa on bond, conditioned that the plaintiff shall enjoy certain land, &c. a 
 srauoSii P^®^' *^^* " ^^^^^ *^® making of the bond until the day of exhibiting the 
 ■ bill," the plaintiff did enjoy, is good, though it be not alleged that con- 
 tinually during that time he enjoyed ; for this is intended (g-). 
 
 But the matter must be capable of different meaning ; for the Court 
 cannot, in order to support the proceeding, in which the particular term 
 occurs, arbitrarily give it a meaning against which the use, habits, and un- 
 derstanding of mankind would plainly revolt (1). But if it be clearly 
 capable of different meanings, it does not appear to clash with any rule 
 of construction, applied even to criminal proceedings, to construe it in 
 that sense, in which the party framing the charge must be understood to 
 have used it, if he intended that his charge should be consistent with 
 itself (A). Every indictment, &c. ought to contain a complete descrip- 
 tion of such facts and circumstances as constitute the crime, &c. with- 
 out inconsistency or repugnancy : but except in particular cases where 
 precise technical expressions are required to be used, there is no rule 
 that other words shall be employed than such as are in ordinary use, 
 or that in indictments or other pleadings a different sense is to be put 
 upon them than what they bear in ordinary acceptation. And if, 
 where the sense may be ambiguous, it is sufficiently marked by the 
 context, or other means, in what sense they were intended to be used, 
 no objection can be made on the ground of repugnamcy, which only ex-^ 
 , ists where a sense is annexed to words which is either absolutely inoon-^ 
 sistent therewith, or being apparently so, is not accompanied by anything 
 to explain or define them. If the case be clear, nice exceptions ought 
 not to be regarded (t). . It is also a rule relating to the mode of stating" 
 facts, and the form of the pleading on either side, that the Court are 
 ex officio bound after verdict to give such judgment as appears upon 
 the whole record to be proper, without regard to the issue found or 
 confessed, or to any imperfection in the prayer of judgment on either 
 side (k) (2) ; and on the same ground we shall hereafter see, that when 
 there is a demurrer to a plea, replication, &c. if the prior pleading be de- 
 fective in substance, judgment will be given against the party pleading it. 
 After verdict, an expression must be construed in such sense as would 
 sustain the verdict (0 : and although in general in pleading, an equivo- 
 cal expression is to be construed against the party using it, yet where the 
 r *239 1 opposite party has pleaded over, that is an admission *that the expression 
 is to be taken in that sense which will support the previous pleading (m). 
 * Words of reference, as " there" and " said " in an indictment, will not be 
 
 referred to the last antecedent where the sense requires that they should 
 
 le-) /d 196 : Steph. 2d edit. 428. (&) 4 Bast, 502 ; 5 Id. 270, 271 ; 10 W. 87. 
 
 (hiper Lord EUenborough, C. J., 5 East, (I) 1 B. & C. 297; Cowp. 825; 6 B. & 0. 
 
 257 See id 463 ZQ^, 303. 
 
 (f) Per Lord EUenborough, C. J., 5 East, (m) Wright v. The King. 3 Nev. & Man. 
 
 259, 260; 2 East, 83, 892. 
 
 (1) And this is the rule in regard to actions for words, either spoken or written, that the 
 court is to understand them according to their ordinary acceptation among mankind. BacKus 
 V Richardson 5 Johns. 584; Woolmoth Y. Meadows, 5 East, 463 ;• Roberts v. Camden, 9 Jiast, 
 gsfResSa « DeLongohamps, 1 Dall. 114; Rue v. Mitchell, 2 M. 59; Brown «.Lamber. 
 ton, 2 Binn. 37 ; Pelton v. Ward, 8 Caines, 76. See the subject very fully discussed, Wa ton «. 
 Singleton. 7 Serg. & Rawle, 449. But stUl the meaning of the words, must be nnequmoal. 
 Harrison «. Stratton, 4 Esp. 218. „_ „. „ . ,, ™^ ^ ou cik ti.»sp rules 
 
 (2) Vide Havens v. Bush. 2 Johns. 387 ; King v. Harrison, 16 East, 614, 615. These rules 
 
 will be fully explained hereafter. 
 
RULES OP CONSTRUCTION. 23 
 
 be referred to the last antecedent where the sense requires that they "i- sin^s 
 should be referred to some prior antecedent (w). 
 
 OF OOK- 
 STETTOIIOlf. 
 
 IV. THE DIVISION OF PLEADINGS. iv. nvi- 
 
 The parts of pleading have been considered as arrangeable under two 
 heads ; first, the regular, being those which occur in the ordinary course 
 of a suit ; and secondly, the irregular or collateral, being those which are 
 occasioned by mistakes in the pleadings on either side (o). 
 
 The regular parts are, 1st .The declaration or count. — 2dly. The 
 plea, which is either to the jurisdiction of the court ; or in suspension of 
 the action, as in the case of parol demurrer ; or in abatement ; or in bar 
 of the action ; or in replevin, an avowry or cognizance.-^3dly. The rep- 
 lication; and in case of an evasive plea, a new assignment; or in reple- 
 vin, the plea in bar to the avowry or cognizance. — 4thly. The rejoinder ; 
 or in replevin, the replication to the plea in bar. — '5thly. The surrejoin- 
 der, being in replevin the rejoinder. — '6thly. The rebutter. — 7thly. The 
 surrebutter. — ^And 8thly, Pleas puis darrein continuance, where the mat- 
 ter of defence arises pending the suit. 
 
 The irregular or collateral psLTts of pleading are stated to be (;»), Ist. 
 Demurrers to any part of the pleadings above-mentioned.— ^2dly. Demur- 
 rers to evidence given at trials. — 'Sdly. Bills of exception. — Ithly. Pleas 
 in scire facias. — And 5thly. Pleas in error. The particular nature of 
 each of these parts of pleading, together with the claim of conusance, de- 
 mand of oyer, and imparlances, &q, will be considered in the following 
 chapters. 
 
 (n) 6 B. &. C. 295. &e. A. 
 
 (o) Vin. Ab. Pleas, &e. C; Bac. Ab. Pleas, (,p) Vin. Ab. Pleas, && C. 
 
 PIiEASIHaSi 
 
[ *240 ] 
 
 ♦CHAPTER IV- 
 
 OP THE DECLARATION (a). 
 
 I; DEFINITION AND DIVISION OF SUBJECT. 
 
 II. THE EBCENT REGULATIONS AB'PECTING THE FORM OP DECLARATIONS. 
 III. THE GENERAL REQUISITES AND QUALITIES OF DECLARATIONS. 
 IV. THE FORMS AND PARTICULAR PARTS AND REQUISITES OF DEOLAEA-' 
 TIONS. 
 
 h BEFiM- I Tgjj DEFINITION AND DIVISIONS OP THE SUBJECT. 
 
 TIOH AND 
 
 J£CI3. 
 
 DIVISION 
 
 °l^^^ A DECLARATION is a Specification in a methodical and legal form of the cir- 
 ""™ cumstances which constitute the plaintiff's cause of action (6), which ne- 
 cessarily consists of the statement of a legal right, or in other words a 
 right recognized in Courts of Law, and not merely in a Court of Equity, 
 and of an injury to such right remediable at law by action as distinguished 
 from the remedy by Bill in Equity. A declaration may conveniently be 
 examined with reference to Secondly, the Recent Alterations, which must 
 be observed in practice in addition to or as variations from the previously 
 established forms ; Thirdly to those General Requisites and Qualities 
 which govern the whole declaration in general, and Fourthly to the Forms 
 and Farts and particular Requisites, as well in Assumpsit, Debt, Cove- 
 nant and Detinue, as in Case, Trover, Replevin, Trespass and Eject- 
 ment. 
 
 II. THE becent Alterations affecting declarations 
 
 IN general. 
 
 2. The re- Before the uniformity of process act, 2 W. 4, c. 39, there were very 
 
 attons af-" numerous and perplexing modes of commencing personal actions, viz. by 
 
 feoting de- original writ issued out of Chancery and returnable in the Courts of King's 
 
 plarations Bench or Common Pleas, (but not in a Court of Exchequer) ; by bill of 
 lit general. i y ? ./ 
 
 (o) As to the proper instructions for de- to 497. 
 
 olarations, and the time when the plaintiff may (4) Co. Lit. 17 a; 308 a; Bac. Ab. Pleas, 
 
 or must declare, and other practical ■pamtSi B.; Com. Dig. Pleader, C. 7 ; Heath's Maxims, 
 
 see fully Chitty's General Practice, vol. iii. 429 1, 2. 
 
OF* THE DECLARATION. *241 
 
 Middlesex or latitat, issued out of and returnable in K. B. by writ of n- recent 
 capias quare clausum fregit, issued out of and returnable in the Court of j^™^. 
 Common Pleas, and by quo minus or venire, issued out of *and returnable feoting 
 in a Court of Exchequer ; and numerous other writs in each of those beclaka. 
 Courts by or against attornies or officers of the court and other persons. By '^*"'^' 
 one or other of these processes, the defendant was always actually or sup- 
 posed to be brought into Court to answer the plaintiff, and after appearance 
 the plaintiff declared, and the commencement of the declaration used to 
 state how or by what process the defendant had then been brought into 
 Court, and consequently the commencements of declarations were infinitely 
 various. The original writ and capias thereon ia assumpsit, case aiid 
 trespass used to state the cause of action as fully as the declaration, with 
 the exception of time and quantity, and therefore formerly special pleaders 
 used to frame the special original writ as requiring as much skill in pleading . 
 as the declaration itself. And except in debt and in a few other actions, 
 the declaration used afterwards to recite the writ verbatim, and repeat it 
 in the court with time and enumeration of all circumstances, until at 
 length one of the first of the very recent improvements (c) ordered that a 
 declaration iu trespass or ejectment, on a supposed original writ,"should no 
 longer recite the writ or supposed writ, but should merely ia the com- 
 mencement state that the defendant was attached to answer the plaintiff 
 " in a plea of trespass " or a " plea of trespass and ejectment," and there- 
 upon the plaintiff by Y. Z. his attorney, complains, <fec. setting out the 
 declaration ; and this more concise form is still to be observed in a dec- 
 laration in ejectment on a supposed original in K. B. and C. P., ^although 
 in. personal actions, as the use of an original writ was abolished by 2 W. 
 4, Q. 39, this last rule has now become of no use though it still applies in 
 ejectment. 
 
 At length the above statute, 5 W. 4, c. 39, having abolished the use of 
 an original writ and of all the other mesne process in personal actions, and 
 substituted several other prescribed forms of writs in personal actions, 
 printed iu the schedule to the act, viz. the writ of summons, writ of dis- 
 tringas, writ of capias, writ of detainer, and writ of summons against an 
 M. P. when a trader (^d), it became desirable that the judges should, for 
 the sake of uniformity, prescribe new forms of commencing- a declaration 
 according to the particular writ that had been issued, and accordingly we 
 find such forms prescribed by Keg. Gen. Mich. Term, 3 W. 4, reg. 15, ^^;,-^^/ 
 vhich orders, " that every declaration shall in future be entitled in the 3 w. 4, as 
 proper Court and of the day of the month and year in which it is filed to Tuu of^ 
 or delivered, and shall commence as follows. ■^^![l ^° 
 
 *Declaration after Summons. 1; „\ 
 
 •' PrescriDed 
 
 [ Vewue.']-:-A. B., by JE. F., his attorney, [or, in his own proper per- forms of 
 son], complains of C. D., who has been summoned to answer the said commence- 
 A. B., .&c. ""=""(')• 
 
 Declaration after Arrest, where the party is not in Custody. 
 [^Venue.^T-rA. B., by E. F., his attorney, [or, in his own proper per- 
 
 (c) Eeg. Gen. Hil. Term, 2 W. 4, reg. 4. privileged persons, excepting when sued as an 
 
 (d) The statute provides that the writ of M. P. being a trader, against whom the writ 
 smmmons shall now be issued as well against varies in a small respect. 
 
 ordinary persons as against attorniesj officers (4) See the forms fnlly, past, vol, ii. 
 pf the Court, coipoT«itions, or huudredors, and 
 
242 OP THE DECLAEATION. 
 
 II. EECENT son], complains of C. D., who has been arrested at the suit of said A. 
 
 ALTERA- 7? it^ 
 TIONS AF- -^•» ^'^- 
 FECTING 
 
 DECLARA- Declaration v^kere the Party is in Custody. 
 
 [Venue.'] — A. B., by E. F., his attorney, [or, in his own proper per- 
 son], complains of C. D., being detained at the suit of A. B., in the cus- 
 tody of the Sheriff, [or, the Marshal of the Marshalsea of the Court of 
 King's Bench or the warden of the Fleet. 
 
 Declaration after the Arrest of one or more Defendant or Defendants, 
 and where one or more other Defendant or Defendants shall have, 
 been served only, and not arrested. 
 
 [Venue.] — A. B., by E. F., his attorney, [or, in his own proper per- 
 son], complains of C. D., who has been arrested at the suit of the said 
 A. B., [or, " being detained at the suit of the said A. B., SfC. as before], 
 and of G. H., who has been served with a writ of capias to answer the 
 said A. B., &c. 
 
 The Reg. G-en. Hil. T. 4, W. 4, reg. 4, promulgated in consequence of 
 the enactment in 3 & 4 W. c. 42, s. sect. 16, prescribes a particular form 
 of commencing- a declaration in a second action that after a plea in abate- 
 ment of non-joinder in a prior action. 
 Prescribed From the succinct form of conclusion of a declaration prescribed by 
 of deckrl" ^eg. Gen. Trin. T. 1 W. 4, it seems that in all personal actions the form 
 tion. should be thus and without adding any supposed pledges, and the addition 
 
 of which is expressly prohibited by Reg. Gen. Hil. T. 4 W. 4. 
 
 " To the plaintiff's damage of £ , and thereupon he brings suit, 
 
 &c." If the action be at the suit of assignees or executors, &c., then say 
 
 to the plaintiff's damage " as assignees," or as executors, as aforesaid. 
 
 And in an action gui tarn, omit all statement of damage. 
 
 Venue in The Reg. Gen. Hil. T. 4 W. 4. reg. 8, orders that the name of a County 
 
 but^not in ^^^^^ ^^ ^^ cases be stated in the margin of a declaration, and shall be 
 
 body. taken to be the venue intended by the plaintiff, and that no venue nhall 
 
 be stated in the body of the declaration or .in any subsequent pleadings, 
 
 provided that in cases where local description is now required the same 
 
 Name or shall be given ; and a subsequent part of the rules of Hil. T. 4 W". 4, 
 
 abuttals in j-equires that in actions of trespass quare clausum fregit, the close or 
 
 quare'' place in which, &c., must be designated in the declaration by name or 
 
 clausum abuttals, or other description, in failure whereof the defendant may demur 
 
 fregit. specially. 
 
 [ *243 ] *Ia order to render pleadings in actions of assumpsit, or debt on bills of 
 Concise- exchange, inland or foreign, and promissory notes, and for common money 
 some"' demands, more concise, Reg. Gea. Trin. Term, 1 W. 4, prescribes cer- 
 forms pre- tain forms of such declaration, and punishes the plaintiff's attorney with 
 scribed the loss of costs in case the declaration exceed the prescribed length (d). 
 ed^^o b*^°' These rules, introduced by Lord Tenterden, were intended not merely to 
 extended be observed and adopted in the particular cg,ses strictly within the terms 
 toali oases, of the rule, but to encourage similar conciseness in all other cases. It is 
 to be observed, that the word said, before plaintiff or defehdant, is to be 
 omitted, and only the word " promised" is to be used instead of " under- 
 took and then and there faithfully promised ; " " request " instead of 
 
 {d) See the rule of forms, post, vol. ii. 
 
GENERAL REQUISITES. 24S 
 
 " special instance and request," and numerous other concise expressions, "• kecen 
 instead of a superfluity of words, which especially when often repeated, ji™^'. 
 when there were numerous counts, considerably augmented the aggregate feotino' 
 length of the declaration, and afterwards the issue and nisi prius record, deolaba- 
 This rule has introduced a practice of conciseness, which it was intended "*'"^' 
 should be extended as much as possible. 
 
 To put an end to the vexatious practice of incumbering every declara- Second 
 tion with numerous varying' counts for the same cause of action, the 3 & '^'"'"'» °° 
 4 W. 4, c. 42, sect. 23, gives the judge power, pending a trial, to amend of^ction 
 a single count in cases of variance, provided the opponent will not there- prohibited 
 by be prejudiced in his defence ; and as it was considered that thereby ^"*«'"«''«^ 
 the necessity for second counts was removed, the Reg. G-en. Hill. T. 4 W, permitted. 
 4, reg. 5, prohibits the use of more than one count upon each cause of 
 action, (though several breaches are permitted), and renders it compulso- 
 ry on a jildge on summons to strike out any such second count, and 
 compel the plaintiff, and ultimately his attorney, to pay the extra costs, 
 and certain other consequences are declared to attach on a violation of this 
 rule. 
 
 This is an outline of the principal modern improvements as tKey affect 
 declarations ; each, with its operation, will be particularly pointed out 
 when we consider the parts and particular requisites of de'clarations. The 
 substance of a declaration, it will be observed, is scarcely in any respect 
 affected, and hence in general the ancient forms and the long established 
 rules will still apply, though every pleader must at the same time take care 
 to conform to the new regulation's. And since the uniformity of process 
 act it would be untechnical in a declaration in scire facias or other plead- 
 ing to state that an action had been commenced, by bill, and would subject 
 the declaration to a special demurrer, though aided by pleading over, or 
 by a general demurrer (e)(1). 
 
 *III. THE GENERAL REQUISITES OR QUALITIES. [ *244 ] 
 
 in. THE 
 
 The general requisites or qualities of a declaration are, 1st that it cor- "^equi^ 
 respond with the process (/), and in bailable actions, with the affidavit subs, &o. 
 to hold to bail ; 2dly, that it contains a statement of all the facts necessa- 
 ry in point of law to sustain the action, and no more (^) ; and, 3dly, that 
 these circumstances be set forth with certainty and truth (A). .The plead- 
 er, before he commences drawing a declaration, should have before him a 
 copy of the writ and affidavit to hold to bail, and very full instructions as 
 to the facts o^ the case, as they can be assuredly proved by evidence al- 
 ready carefully ascertained. 
 
 fe) Darling v. Guerney, 2 Crom. & M. 326; pleading over; contra, 2 Dowl. 101. 
 2 Dowl. 235; Peaoook «. Day, 4 Dowl. 291. (/) Com Dig. Pleader, C. 13. 
 
 But the same cases establiahed that this objec- \g) Co, Lit. 303 a; Plowd. 84, 122. 
 tion is not a ground of general demurrer, or (ft) Jd. ibid. 
 arrest of judgment, or error, and is aided by 
 
 (1) Vide Reid v. Lord, 3 Johns. 118. 
 
 As to the form of the original wyit in assumpsif against a, corporation, see Lynch v. The Me- 
 chanics' Bank, 13 Johns. 127. 
 
 YOL. I. 85 
 
244 OP THE DECLARATION 
 
 ^"'eS* Regularly the declaration should correspond with the process (1), but 
 BEQvi- ^^ according to the present practice of the Courts, oyer of the writ cannot 
 SITES, &c. be craved, a variance between the writ and declaration cannot in any 
 1. Should case be pleaded in abatement (2) or otherwise ; and as there are several 
 correspond instances in whicli the Court will not set aside the proceedings on account 
 with pro- of ^ variance between the writ and declaration (i) many of the older de- 
 cisions are no longer applicable in practice (3). Formerly in the King's 
 Bench when the proceedings were by special original, we have seen that 
 the venue must be laid in the declaration in the county into which the 
 original was issued, or in bailable cases the bail was discharged (A) ; but 
 in the Common Pleas and in the King's Bench, if the proceedings are by 
 bill, the bail were not discharged by such variance (Z) ; and where an out- 
 lawry had been reversed, the plaintiff might in C. P. declare in any coun- 
 ty (m). And at length Reg. Gen. Hil. T. 2 W. 4, reg. 40, ordered that 
 a declaration laying the venue in a different county from that mentioned in 
 Imrhat the process, should not be deemed a waiver of the bail (w). Since-the 2 
 prSent"^* W 4, c. 39, abolishes proceedings by original, that rule has become of no 
 practical utility. We will consider how far, according to the present 
 practice of the Courts, the declaration must correspond with the process 
 or the affidavit to hold to bail, with respect to, 1st, the names of the par- 
 ties to the action ; 2dly, the number of such parties ; 3dly, the character 
 or right in which they sue or are sued ; 4thly, the cause and/orm of action : 
 and under each of these heads the consequences of a deviation from the 
 process will be noticed. 
 
 [ *245 ] 1st, The general rule is, that the declaration should pursue the writ *in 
 In names Teg&rd to the christian and surnames of the parties (4:') . If a person enter 
 of the par- into a bond or deed by a wrong name, he should be sued by such name (5) 
 ties (o). g^j^^ j^ ^m jjQ^ ]jg correct to declare against him in his real name, although 
 there be an averment that he executed the instrument by the untrue de- 
 scription (p). The mis-spelling a name is not, however, material, if the 
 two names be of the same sound (g). The reversion or transposing the 
 order of christian names, as " Richard John," instead of " John Rifhard," 
 was considered a misnomer, and might have been pleaded in abatement 
 before the 3 & 4 W. 4, c. 42, sect 11, which abolished pleas of misnomer 
 
 (i) 6 T. R. 364. permitted, id. 164 to 169, 469; by initials or 
 
 Ik) 3 LeVi 235; Keg. E. 2, G. 2. wrong name, after diligent inquiry, id. 165, 
 
 (I) Tidd, 9th ed. 294. 166. 
 
 (m) 3 Lev. 245; Imp. C. P. 612. (p) 3 Taunt. 504; 2 C. & P..474; 5 B. & 
 
 (n) Jervis'.Rules 53, ttote (p). A. 682. That the name by which aparty signs 
 
 (0) As to the deseription of Ae names of the a deed may be adopted, see 1 M. & M. 6 ; 2 Car. 
 parties in the writ, see 8 Chitty's Gen. Prao. & P. 474, S. C. 
 
 Sdedit. 163 to 174; number of defendants, {q) 10 East, 83; 16 id. 110; 2 Taunt. 401. 
 183 to 285, 466 ; description of by initial, when 
 
 (1) See Gratz v. Phillips, 1 Binn. 588; Jennings v. Cox, ibid; Oilman v. Shultz, 5 Serg. & 
 Eawle, 35. 
 
 (2) See, however, P v. Bogan, 2 M'Cord, 386; 1 M'Cord, 708; Duval v. Craig, 2 
 
 Wheat. 45; 1 Harr. & Gill, 181; Cronly «. Brown, 12 Wend. 271; Prince ». Lamb, Breese, 298; 
 Rust V. Frothingham, ib. 258; Ball r. Bank of iTtica, 6 Cowen, 70; Bank of New Brunswick v. 
 Arrowsmith, 4 Halst. 284; Sargent v. Hayne, 2 Hill, S. C. 588. 
 
 (3) See Overseers of Koxborough v. Bunn, 12 Serg. & Rawle, 295; MTarlan v. Townsend, 
 17 Wend. 440. The declaration need not recite the writ. Burton v. Waples, 3 Harring. 75, 
 
 (4) See post, 302, note. 
 
 (5) See Meredith v. Hinsdale, 2 Gaines, 862; Wood v. Bulkley, 18 Johns, 48Q. 
 
General eequisites. 245 
 
 iti abatement, and gave a defendant a remedy by summons, to compel tke i"- ™= 
 plaintiff to state the correct n^me in his declaration (r). "bboti- 
 
 When bailable process had been issued against the defendant by a sites, &o. 
 wrong name, if he had put in bail above in such name, he was estopped i. should 
 from pleading in abatement, when misnomer was so pleadable, and th^ dec- oorresipoiid 
 laration might be comformable to the writ (s). And it was held that the ^'''' P'"" 
 giving a bail bond by the wrong name, not alluding to the right name, 
 would preclude the defendant from pleading in abatement (t} (1). It 
 has however been recently decided that the misnomer of a defendant 
 in bailable process renders it so invalid that the defendant might sue the 
 sheriff for false imprisonment, and the bail bond is absolutely void, and 
 after verdict the judgment thereon was arrested («.)■ If tlie defendant 
 appeared or put in bail against him by such name, stating that he was ar^ 
 rested or served with process by the other, in which case the defendant 
 could not plead the misnomer in writ in abatement {.r) ; nor would the 
 Court set aside the proceedings in such case if the plaintiff declared 
 against the defendant by the right name, witliout stating that he was ar- 
 rested or served with process by the other («/). If the defendant did not 
 appear, it was held tliat the plaintiff could not rectify the mistake in the 
 writ by appearing for him in his rig-ht name, according to__the statute (z); 
 or. by appearing for him in the name by which he was suetJ, and declaring 
 against him by his right name (a). Though the plaintiff appeared for and de- 
 clared against the defendant in the wrong name, as mentioned in the writ, that 
 would warrant him in proceeding to judgment and execution, if he omit- 
 ted to object to the irregularity in *due time (6). So if a defendant were [ *246 J 
 served with process by a wrong christian name, and afterwards the plain- 
 tiff entered an appearance for him and served him with notice of declaration 
 by his right name, and proceeded to judgment and execution, the Court 
 would not set aside the proceeding for irregularity, merely on the ground 
 that the defendant had never appeared ; because he ought to have objec- 
 ted in due time (c). As the 3 & 4 W. 4, c. 42, abolishing pleas of mis- 
 nomer in abatement, merely enables a defendant to compel the plaintiff to 
 amend his declaration by stating the real name, that now seems to be the 
 only ill consequence in the mistake of the name in serviceable process, 
 
 (r) 5 I. E. 195. (z) 3 T. E. 611; 11 East, 225, 226; 2 New 
 
 (s) Willes, 461; 2 New Kep. 453; Bac. Ab. Eep. 182, ace.; 1 B. & P. 405, contra. 
 
 Plea, 1. 11; Tidd, 9th ed. 448. ,-(a) 10 East, 328; 11 East, 225, 226; and 
 
 (0 3 Taunt. 505; Tidd, 9th ed. 448; 5 B. & see 3 M. & Sel. 450. 
 
 A. 682; but see Wmeai 461; 8 Moore, 226; 1 (4) 2 8tra. 1218; 6 T. E. 234, to 236, 6 
 
 Bing. 424, S. C. Taunt. 115; 1 Marsh. 474, S. C; 3 East, 197. 
 
 («) Finch V. Cooken and others, 3 Dowl. Sed vide, 4 Moore, 105. 
 
 678. (c) 3 East, 167. But it is observed in the 
 
 (a:) 3 T. E. 614; 1 B. & P. 645; 2 Wils. notes, that it did not appear in what name the 
 
 393; 13 East, 373; Tidd, 9th ed. 449. plaintiff cniercd the appearance. It turned on 
 
 (!/) 2 Wils. 393; 13 East, 273; Tidd, 9th the wairer of the irregularity, 10 East, 328; 
 
 ed. 449. 11 Id. 225, 226, 
 
 (1) If a person enter into a bond by a wrong christian name, andbe sued on such bond, he 
 should be sued by the name in the bond, and a declaration against him by his, right nani^, stat- 
 ing that he by the wrong name executed the bond, is bad, and the defendant may avail himself 
 of this objection under the plea of non est factum. Gould v. Barnes, 3 Taunt. 504. An, action 
 for breach of promise of marriage brought by a feme sole, was compromised by her attorney, 
 after her marriage to another person, by taking the defendant's promissory note, payable to her 
 by her maiden name; the attorney and the defendant being both ignorant of the marriage. lu 
 an action by the husband alone, in his own name, upon the note, it was held that it was goodj 
 and that he waa entitled to recover. Templeton v. Crane, 5 Greenl. 417. 
 
246 OF THE DECLARATION. 
 
 oBNiS ttougb in bailable process, an arrest by the -wrong name is a false impris' 
 BEfwi- onment, and the bail bond is void and cannot be sued upon with effect, 
 SITES, &o. though a judgment obtained in the original writ may still be invalid (d). 
 1. Should Where process had been issued against a defendant by a wrong name^ 
 ^orrea- the misnomer might, before the late act, be cured by amending the writ, if 
 procesl *^®^® "^^P f''^y ^'^^"S to amend by, and then declaring against the defend- 
 ant by his right name ; as where the defendant was properly named in the 
 affidavit to hold to bail, but was mistaken in the process (e). So if the 
 defendant pleaded the misnomer in abatement, the plaintiff might amend 
 the writ and declaration even though defendant was a prisoner (/), un- 
 less there had been in the interim a tender of the debt, or the plaintiff 
 might enter a cassetur bella or breve, in which case he was not liable to 
 pay the defendant's costs {g'). But now it is the practice to refuse an 
 amendment of mesne process unless in a case where otherwise the stat-' 
 ute of limitations would be a bar {h). Formerly, if there was reason to 
 doubt the defendant's name, it was advisable either to wait till the defen- 
 dant has appeared, and to declare in chief, or to declare de bene esse with 
 an alias ; and it has been held, that a declaration against a defendant by 
 the name of "Jonathan," otherwise "John Scans," (1) was sufficient upon 
 demurrer (J) ; though not so upon a plea in abatement, for in law a party 
 cannot have two' christian names (A). It was considered that the defen-' 
 dant could never plead in abatement, if the declaration were against 
 [ *247 ] him by his right name only, although the process were *wrong (J). But 
 in such case, if the defendant had not waived the misnomer or irregularity, 
 he might apply to the Court to set aside the pleadings; for, independently 
 of the misnomer, there was not, under such circumstances, any writ to 
 support the declaration. 
 
 Where there has been a misnomer in the writ, care must be taken on 
 the part of the defendant not to waive the objection (m). In cases of 
 non bailable process the court would not, nor will they now, interfere on mo- 
 tion to set aside the proceedings, so that the defendant could not avail 
 himself of the misnomer otherwise than by plea in abatement (n). And 
 now since that plea has been abolished as regards misnomer by 3^4 W. 
 4, c. 42, sect. 11, the defendant's only course is to take out a summons re- 
 turnable before a judge, to compel the plaintiff to amend the misnomer in 
 the declaration, and insert the real name and pay the costs of the application. 
 In no case could a misnomer, (even of one of several defendants,) in an 
 action on a promissory note, or other written instrument, be pleaded 
 in bar (o). If the defendant be misnamed in a bailable writ, he may 
 
 (d) Finch v. Cooken and others, 8 Dowl. name of 'Jonathan Soans,' otherwise 'John 
 678. Scans,' it might, perhaps, have admitted of a 
 
 (e) 2 B. & P. 109; 8 Wils. 49. different consideration." 
 
 (/) 7 T. E. 698; 8M. & Sel. 450. (fc) Ante, 245; Willes, 554; Tidd, 9th ed. 
 
 (g) See Tidd. 9th ed. 688. 447. 
 
 (A) Hortonu. Borough of Stamford, 2Dowl. (0 2 Chit. Eep. 8; 3 M. & Sel. 450; Tidd. 
 
 96; Lakini). Watson, 2. Dowl. 633; 2 Com. 9th ed. 449. 
 
 & M. 685; 3 Chitty'a Gen. Prao. 173, 234, (m) See the mode of appearance and of giv- 
 
 235. ing the bail-bond, Tidd, 9th ed. 448, 449. 
 
 (i) 3 East, 111. Lord Ellenborough said (n) 7 D. & K. 368; 11 Moore, 39. 
 
 that "if the defendant had been sued by the (o) 16 East, 110. 
 
 (1 ) If the surname of the obligor in the body of a bond, varies by a slight mis-spelling, 
 producing scarcely any change in the pronounoiation ■ from that in the subscription, he may be 
 sued by the name subaeribed alone-) without an alios dictus. Meredith vi Hinsdale, 2 Caines , 
 862. 
 
GENERAL REQUISITES. 247 
 
 still move the court to set aside the proceedings for irregularity (p) (1), m. the 
 and although he omit to do so, he may support an action of trespass for °™™ai' 
 false imprisonment against the sheriff and his officers {q) (2) ; unless the siiEsr&o. 
 Court, on setting aside the proceedings, restrain the defendant from bring- i. Should 
 ing such action (r). And it has been recently decided that the bail bond correspond 
 is so void that even if judgment be recovered against the bail in an action ^^^ P™" 
 on such bond, the judgment may be arrested (s). 
 
 Where the name of the plaintiff has been niistaken in the process, it is 
 advisable in the commencement of the declaration, as in the case of a 
 defendant, to state, that " A. B. (the real name) the plaintiff in this ac- 
 tion, at whose suit, by the name of E. B., C. D., the defendant in this 
 action, was served with process," (" or arrested") in this suit, by Y. Z. 
 his attorney, (or in person,) complains of the said defendant being, 
 &c."(t) (3); for if the plaintiff's misnomer should be continued in dec- 
 laration, the defendant might take out a summons to compel the plaintiff to 
 amend and state the correct name, and pay the costs of the application, 
 although he could not plead in abatement since 3 & 4 W. '4, c. 42, sect. 
 11. At no time, even in the case of a corporation, was misnomer of the 
 plaintiff pleadable in bar (m) (4). But a mistake in the name of a third 
 person in matter of description, will sometimes be *fatal to the proceed- [ *248 ] 
 ings as a variance (x). A misnomer of the plaintiff could only be plead- 
 ed in abatement, and was no ground for setting aside the proceedings (^z); 
 or for a motion in arrest of judgment (z) ; or of nonsuit at the trial, at 
 least if it appeared that the defendant was aware that the action was 
 brought by the person who actually sues (a). It seems now to be settled j 
 
 (p) 1 B. & p. 647; 2 Taunt. 399;Tidd, (0 1 B. & P. 647. As to the mistakes in 
 
 9th ed. 447, 448; Ladbrook v. Phillips, 1 Har. names once correctly stated, see 3 M. & Sel. 
 
 & Wol. 109; 3 Chitty's Gen. Prac. 167, 353, 178; Com. Dig. Pleader, C. 18. 
 
 354. («) 1 B. & P. 40; 3 Anstr. 935; 6 M. & 
 
 (</) 8 East, 828; 6 T. R. 234; 2 Campb. Sel. 45. 
 
 270; 2 Taunt. 399; 1 Marsh. 75; 5 Taunt. (x) Willes, 5; 1 Stark. 100; 1 M, & M. 6; 
 
 623; 1 B. & Aid. 647; 7 B. & C. 486. But but see 1 Stark. 47. 
 
 see 3 Campb. 108; 8 Moore, 297; 1 Bing. '314, (y) 4 Moore, 369; 2 B. & B. 34. S. C. 
 
 S. C. (a) 2 Bla. Rep. 1120. 
 
 (r) 1 Chit. R. 282. (a) 3 Campb. 29; 6 Moore, 141 ; 8 B. & B. 
 
 (s) Knoh V. Cooken and others, 3 Dowl. 54, S. C; 7 Moore, 622; 1 Bing. 143, S. C. 
 678. 
 
 (1) Vide Menzies v. Rodrigues, 1 Price's Exch. 92. 
 
 (2) Mead v. Haws, 7 Cow. 322; Griswold v. Sedgwick, 6 Cow. 456. But the court will not 
 discharge the defendant on motion, unless he will undertake to bring no action. Wilkes v, 
 torch, 2 Taunt. 399. Where there is only an inaccuracy in the spelling, so that the name is 
 still idem sonans, the court will not discharge the defendant. Ahitbol v. Beneditto, 2 Taunt. 
 401.' 
 
 (3) " The 1 Chitty on PI. 251, 2, (4th edit.) is an authority for this mode of declaring ; but 
 the case to which he refers is Murray v. Hiibbart, 1 Bos. & Pul. 645. This case does not bear 
 him out. It is where a defendant sued by a wrong name, appeared, and was declared against 
 by his right one. The case here is directly the reverse. The capias is at the suit of George B. 
 
 ^iZZard, according to which the defendant appears; Charles Willard ih&u comes in and de- 
 clares in his own name. The declaration must correspond with the process in the names of the 
 parties. Tidd, 402. The case of a defendant, sued by a wrpng name and appearing in his 
 right one, is an exception to this rule." Per Curiam, Willard v. Missani, 1 Cow. 37. 
 
 (4) Vide Medway Cotton Manufactory v. Adams, 10 Mass. 360, 362, 863. 
 
 Where a deed is made to a corporation, by a name varying from the true name, the plaintifls 
 may sue in their true name, and aver in the declaration that the defendant made the deed to 
 them, by the name mentioned in the deed. New York African Society v. Varick, 13 Johns 38; 
 Inhabitants, &e. v. String, 5 Halst. 323; President, Managers, to v. Myers, 6 Serg. & 
 Ratirle, 12. 
 
248 OF THE DECLARATION. 
 
 III. THE that when the parties have been once named in the declaration, it is suffi* 
 *^g^" cient to describe them afterwards by the terms " plaintiff " and " defend^ 
 BITES, &c. ant " (&). If instead of the T^lMvaX plaintiffs, the word plaintiff in the sin* 
 1. Should gular be adopted in a material part of the body of a declaration, it has 
 correspond been supposed that the declaration will be subject to a special demurrer, 
 cess. ^™" ^^* ^^ merely in the commencement it would be otherwise (c). 
 
 Number of 2dly. With respect to the declaration corresponding with the process 
 
 ^^^^^' in the number of the parties, it has been held that if a writ be sued out in 
 the name of one plaintiff, the declaration in chief must not vary, and if it 
 
 plaSiffi"^^^ delivered in the name of two plaintiffs, the proceeding will be set aside 
 for irregularity (d). And even in an action in autre droit, as by an exe- 
 cutor, the court will not permit an amendment by adding the name of a 
 co-executor, unless the statute of limitations will otherwise be a ba:i^ (e). 
 But in the King's Bench, where the defendant has appeared to possess at 
 the suit of two, one of them might have declared alone by the bye, when 
 that collateral mode of declaring was admissible, for he was considered a 
 stranger (/) ; and though the plaintiff in the original action must have 
 declared in chief before lie could declare by the bye (§■), yet formerly any 
 other person might declare by the bye even before the delivery of a dec- 
 laration in chief (A). The practice, however, seems to have been virtu- 
 ally abolished (i). Upon a writ in an action at the suit of a husband and 
 wife, a declaration might have been delivered by the bye at the suit of the 
 husband only : but if the writ were by the husband only, and he declared 
 thereon, a declaration by the bye at the suit of himself and wife was irreg- 
 ular (Ji), \ 
 
 Common process in the Common Pleas might have been against four 
 defendants, . and the plaintiff might have declared thereon separately 
 against each {I). In the King's Bench, the Keg. Easter Term, 3 G. 4. 
 
 [ *249 ] *ordered, " in all actions by bill, the mesne process shall contain the name 
 of the defendant, or if more than one, of all the defendants in that action, 
 and shall not contain the name or names of the defendants in any other 
 actions" (m') (1) . . . » 
 
 In all the Courts, on bailable process against several, in an action on a 
 contract, the declaration must always have been and still be against. all 
 jointly (2), or the declaration would be set aside for irregularity (n). 
 In the common Pleas, however, the affidavit of debt and clause of ac 
 
 (A) 6 Taunt. 121; 2 Marsh. 801,8. C.;6 thorities there cited, showing that the prac- 
 Taiint. 406. tice of declaring by the bye is now abolished, 
 
 (c) Tyndal and another v. UUesthrope, 3 and that it ought not to be revived. 
 
 Dowl. 2; but see 4 Moore & Soott,417. (fc) Barnes, 388; Prac. Reg. 131, 132; 1 
 
 (d) 1 B. & P. 883. Sel. Prac. Ch. 6, a. 1, B. 3; Xidd, 9th ed. 425. 
 
 (e) Lakin and another v. Watson, 2 Crom. (l) 1 Bos. & Pul. 19, 49; Tidd, 9th ed. 148; 
 & M 685. 1 M. & Sel. 55; 2 New. Eep. 82. 
 
 (/) Burr 2180. (m) K.E. 8 Geo. 4, 6 B. & C. 639; 2 M. Ss 
 
 {^) 6T. R. 158;7/d. 80. R. 367. 
 
 (A) Phillipps' case, 1 Cromp. 96,3d ed.; (n) Tidd, 9th ed. 149, 446; Carson v. 
 
 Tidd, 9th ed. 424, 425. Downing and another, K. B. Trin. Term, 
 (i) 3 Chitty's Gen. Prac. 495, 496, and au- 
 
 (1) And, in the Supreme Court of the State of New York, the plaintiff may join any number 
 of defendants in a process not bailable, and declare against them severally, or against some, 
 omitting the others. Montgomery v. Hasbrouok, 3 Johns. 530. 
 
 (2) But the rule applies only to cases of contract, and it is not applicable to actions in tort. 
 Wilson V. Edwards, 6 Dowl. & Kyi. 622. The oases referred to in Tidd, are eases of oontraot. 
 See Nelson v. Ayra, T Halst. 62, and the ca«e cited. 
 
GBKTERAL BEQUISITES. 249 
 
 etiam in a bailable process, pointed out the person against whom the ™- ™= 
 action was to proceed ; therefore, where the afladavit of debt was against °^!^^ 
 A., the capias against A. and B.,and the declaration against A. only, by sues, &o. 
 whom bail was put in, that Court held it to be regular (o),; and upon a i. should 
 bailable capias against two defendants, with a clause of ac eiiam and correspond 
 affidavit of debt against one, the plaintiff in Court might have regularly ^'* P™" 
 declared against the latter defendant only (p). 
 
 Recently the practice has been altered and settled for all the Courts as 
 regards the number of defendants. The first general rule of Trin. Term. 
 3 W. 4, ordered that every writ of summons, capias, and detainer, shall 
 contain the names of\ll the defendants (if more than one) in the action, 
 and shall not contain the name or names of any defendant or defendants 
 in more actions than one (5). However numerous the defendants in a joint 
 action may be, they must all be named in each and every writ issued 
 against them, although they greatly exceed four (1) ; and when very nu- 
 merous, if there be not room in the printed blanks for all the names and 
 description of residences, then the whole writ must be written ; and if 
 some one or more defendants be in one county, and the others in another 
 county, then there must be at least as many concurrent writs precisely 
 alike, as there are counties, (varying, of course, if writs of capias, in the 
 direction to the sheriff of each county) ; and there must be as many copies 
 of such writ as there are defendants in that county, unless there has been 
 an attorney's written undertaking to appear for them. 
 
 Upon the affirmative or first part of this rule, it is clear that a decla- 
 ration naming more defendants than were named in one writ would be 
 irregular (»•). But on theslatter part of the rule, it has been lield, that in 
 process bailable against several defendants, the plaintiff may regularly de- 
 clare in a joint action against some of them, provided he has done no act 
 showing any intention to proceed against the other defendant or defend- 
 ants, and especially so when the plaintiff has *entirely dropped his pro- [ *250 ] 
 ceeding against such other defendant (s). And the same doctrine pre- 
 vails even on bailable process, when against several persons for a tort (i). 
 So that until the plaintiff has declared on his joint process, no irregularity 
 appears that could l)e taken advantage of, and therefore a defendant can- 
 not object until after declaration. But where the names of two defendants 
 had been inserted in a writ of summons, and afterwards they were both 
 declared against separately, the court set aside the declaration and subse- 
 quent proceedings for irregularity, although there were two writs and the 
 defendant had entered separate appearances, which it was insisted waived 
 the irregularity (m). And where a husband and his wife had been ar^ 
 
 1835, Legal Observer, 1834. How to act -when Whitehead, 2 M. & E. 367; Bowles v. Bilton, 
 
 one of the defendants cannot he arrested or 2 C. & P. 474; Knowles v. Johnson, 2 Dowl. 
 
 served with process, see Snell, Prac. vol. i. c. P. C. 653, and R. E. 8 G. 4; Caldwell ». 
 
 6, s. 1, E.; Imp. Prac. K. B. 6th ed. 545, 7th Blake, 8 Dowl. 656; 1 Gale. 157, S. C. 
 
 e^ 599; 1 Stra. 473. But it is not always so (<) Wilson v. Edwards, 3 Bar. & Crcs. 734; 
 
 in actions for costs, 3 Bar. & Cres. 734. 5 D. & E. 622, S. C; Evans v. Whitehead, 2 
 
 (0) 2 New Kep. 98; Tidd, 9th ed. 447. Man. & Ry. 467; Pepper «. Whalley, 1 Bing. 
 
 ip) 1 Moore, 147; 7 Taunt. 458, S. C; see N. C. 71; 2 Dowl. 821, S. C; Knowles v. 
 
 1 Bing. 48. Johnson, 2 Dowl. P. C. 653. 
 
 . (?) See rule, Jervis's Rules. (k) Pepper v. Whalley, 1 Bing. N. C. 71 ; 
 
 (r) 1 Arch. Pr. C. P. 40. 3 Chit. Gen. Prac. 285. 
 
 is) Tidd's Sup. 1833, p. 467; Evans v. 
 
 (1) Irwin V. Beyine, 1 J. ^, Marsh, 205. 
 
250 
 
 OF THE DBCLABATION. 
 
 ni. THE rested on joint process, and the latter had been discharged out of custody 
 jjj,Q^j_ upon entering a common appearance, and afterwards ihe plaintiff declared 
 SITES, &c. against the husband alone, the Court held the proceedings irregular (x). 
 1. Should ■A^'^'i i'l ^ bailable action, if the declaration should be against fewer de- 
 correspond fendants than those named in the writ, the proceeding would, although 
 with pro- ^Q^ within the terms of the rule, be irregular, and the Court would set 
 aside the declaration {y'). 
 
 Instances have occurred in which the name of a defendant, improperly 
 joined with others, has been struck out upon amendment (sr). But since 
 the uniformity of process act, 2 W. 4, c. 39, the Coifrts have resolved not 
 to permit any amendment of writs, unless the statute of limitations would 
 be a bar (a) ; or where the parties have pleaded and joined issue, in which 
 latter case the names of two or more defendants have on summons been 
 struck out of the declaration and issue (1). 
 
 ThB char- 
 acter in 
 ■which 
 plaintiff 
 sues, or de' 
 fendant is 
 sued. 
 
 3dly. With respect to the character or right or liability in which the 
 plaintiff professed in his writ to sue, or the defendant was sued, no mate- 
 rial alteration appears of late to have been introduced. Upon common 
 process, not bailable, and which did not specify the character or right in 
 ■which the plaintiff sues, it was held that he might declare specially, as qui 
 tarn, or as executor, or as administrator, or as assignee, or in any other 
 special character ; for this did not tend to enlarge but to narrow the de- 
 [ *251 ] mand which the defendant was called upon to answer (6), and it has *been 
 decided, that though the plaintiff may style himself executor (c), (not 
 stating himself to sue as executor) or give himself any other superfluous de- 
 scription in the process, and declare otherwise, this would not be irregular, 
 because the demand was still the same (d) (2). And so where the defend- 
 ant was described in process generally, he might be declared against as ad- 
 ministrator, the object of the writ being merely to bring him into Court (e). 
 But where the process to answer the plaintiff in a special character or 
 right, as describing him as suing qui tarn (/), or as executor (g-), or as 
 assignee of a bankrupt (A), the declaration could only be in the sapie char- 
 acter, and the plaintiff could not declare generally ; and if he did, the 
 Court would set aside the proceedings (J). Where the action was bailable, 
 the Court would in the latter case discharge the defendant out of custody 
 on filing common bail ; leaving the plaintiff, however, at liberty to proceed 
 upon his declaration (A). It seems that if bailable process be general in 
 the body of it, a variation between the declaration and the ac etiam part of 
 the writ, (when in use, but now no longer so,) or the af&davit to hold to 
 
 {x) Cattarne v. Player, 3 Dowl. & By. 247. 
 
 ly) Carson v. Downing and another, K. B. 
 Trin. Term, 1835, Legal Observer, 134; 1 
 Arch. Pr. C. P. 40, citing 4 East, 589; 1 M. 
 & Sel. 55. 
 
 (z) Ante, 13. note (x). 
 
 (a) Lakin v. Watson, 2 C. & M. 585. 
 
 (6) 2Stra. 1232; 2 Bla. Eep. 722; 3 Wils. 
 141, S. C; Burr. 2417; 1 B. & P. 383, n. b; 
 1 Bar. & Adol. 19. 
 
 (c) Lord Tenterden so decided at chambers; 
 but the cases do not sustain the position to 
 the full extent; see further 1 Dowl. Rep. 97. 
 
 (d) 3 Bla. Rep. 722; 1 B. & P. 383, n. b. 
 
 (e) 6 Moore, 66; 3 B. & B. 4, S. C. 
 (/) Burr. 2417; 2Stra. 4232, n. 1. 
 
 (g) 8 T. B. 416; 1 B. & P. 883; 3 Wils. 61. 
 
 (h) Tidd, 9th ed. 450, n. e. 
 
 (i) Supra, note (6). 
 
 (fc) ST. R. 416; Tidd. 9th ed. 450; 3 Wils. 61. 
 
 (1) See 1 Met. & Perk. Dig. Tit. Amendments. 
 
 (2) Vide Woodford v. Webster, 8 Day, 472; M'Williams v. Willis, 1 Wash. 199; Clap v. Day. 
 2Greenl. 805; Waldsmithii. Waldsmith, 2Ham. 156. ' 
 
GENERAL REQUISITES. 251 
 
 bail, was only a ground for discharging the defendant on common bail, and ™- ™e 
 not for setting aside the proceedings for irregularity (/). Where the plain- ™^^ 
 tiffs issued a writ generally in their own names, and declared in their own sues, &o. 
 right, and described themselves in the afiidavit to hold to bail as surviving i. should 
 partners, the Court discharged the defendant on filing common bail, and correspond 
 ordered the bail-bond to be cancelled, and would not allow the plaintiff to ^'"^P''"- 
 amend (m). 
 
 The uniformity of process act, 2 W. 4, c. 39, as well in its enactments The rules 
 as in the prescribed forms in the schedule, is silent upon the necessity of ^^'l'^^"'- 
 inserting any description of the character or right in which the plaintiff this point 
 sues or the defendant is sued ; and it is probable that it was intended by since the 
 that statute merely to require that the form of action should be stated, '"'>*'o"ni*y 
 and the amount of the debt indorsed, which it was perhaps considered °aJt^2^. 
 would sufficiently inform the defendant in all actions, and his bail in bail- 4,c.39(»). 
 able actions, what was the nature of the claim and supposed liability. 
 Since that act, it was considered by the Courts of K. B. and C. P., with 
 reference to prior decisions, that upon a. general writ, whether semcea6/e 
 (o) or bailable (p), and not stating *the character in which the plaintiff [ *252 ] 
 sued, or the defendant was sued, the plaintiff was a,fterwards at liberty 
 to declare specially in any particular character or right, as qui tarn or as 
 executor or administrator, or as an assignee of a bankrupt ((j) ; or as as- 
 signee of a bail-bond (r) ; and also it was held in the Common Pleas, 
 that on such general process the plaintiff may declare against a defendant 
 as an executor or administrator (5). And where the affidavit stated the 
 debt to be due to the intended plaintiff as executor, but the process was 
 general, the Court of Exchequer refused to order the bail-bond to be can- 
 celled if). It was also held, that although the process had described the 
 plaintiff or defendant generally as being executor, administrator, or as- 
 signee, without introducing any words that he sued as such, the plaintiff 
 might declare generally in his own right, or against the defendant on his 
 own liability, treating the description as a mere superfluous addition, just 
 as if the word carpenter had been idly introduced (ji). But that by in- 
 troducing into the writ any express statement that the plaintiff intended 
 to sue in a particular character, as by using the word " as executor," or 
 " as assignee," <fec., then the plaintiff having so expressly limited his pro- 
 ceeding, could not declare generally, and that if he did so, then, at least 
 in a' bailable action, the defendant would be discharged out of custody, and 
 the proceedings be set aside ftff irregularity {x). 
 
 But it has been supposed that there is a difference in these respects in 
 
 t 
 
 (0 6 T. R. 363; 3 Wils, 141, 181 ; 9 T. R. Rep. 214, S. C. 
 416. (r) Knowles a. Johnson, ii Dowl. 653; and 
 
 (m) 5 Moore, 209; see 1 B. & Aid. 29; 6 • see 3 Chitty's Gen.Prao. 181 to 183, 200, 470. 
 T. R. 363. (s) Watson v. Pilling, 3 Brod. & B. 446; 6 
 
 (n) See fully as to the necessity for correct- Moore, 66, S. C. 
 ly describing forms of action in all process, and fj) Ilsley ?>. Ilsley, 2 Tyr. 214; 2 C. & J. 
 
 consequences of deviation, 3 Chitty's Gen. Prac. 320, S. C. 
 
 194 to 199, 237, 467. (m) 1 Dowl. Rep. 97; Knowles v, Johnson, 
 
 > (0) See oases Tidd's Supp. 1833, p. 67. 2 Dowl, 153; and see Henshall 0. Roberts, 5 
 
 (p) But it will be observed, that in those East, 460.- 
 cascs the affidavit to hold to bail correctly sta- (a:) Douglas u. Irlam, 8 T. E. 416; Rogers 
 
 ted the character in which the plaintiff sued, v. Jenkins, 1 Bds. & Pul. 383 ; 1 DqwI. P. C. 
 
 the same as in the declaration. Seenext note. 98, 99; but see Ashworth v. Ryall, 1 Bay. Si 
 
 (?) Ashworth v. Ryall, 1 Bar. & Add. 20; Adol. 20. 
 Ilsley ti. Ilsley, 2 Cromp. & Jer. 300; 2 Tyr. 
 
 Vol. I 86 
 
252 
 
 QP THE DECLARATION. 
 
 SjjS *^^ practice df the Common Pleas («/) ; and it is to be collected from one 
 KEfttn- 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 
 CDtrespohd avail himself of such variance (s). But in that case the affidavit to hold 
 Tnm pro- ^q ^jg^jj ^g^g 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 anothet case that Court held that a *defendant may be declared against 
 as administrator, though the^process described him generally (6). How- 
 ever, it will be prudent, in a writ in the Common Pleas, when the plain- 
 tiff 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 4thly. Before the uniformity of process act, 4 "W. 4, c. 89, upon corn- 
 action in P^'^'^ process the plaintiff might declare in any cause of action whatever {d) . 
 itrit, 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 dis- 
 charged on filing common bail (e) ; and the Courts would not allow the 
 declaration to be amended in that respect (/) ; but that was the only 
 consequence, for the Court would not in such case set aside the proceed- 
 ings 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; 
 grbuildfor discharging the defendant on common bail (A); and, at least in the 
 Comtiion Pleas, where the sum sworn to is under £40, a variance between the 
 foi-m of action in the ac etiam and the declaration was not considered mate- 
 rial (i). When the suit was commenced hj original, the plain tiff was required 
 to declare in chief for the same cause of action as was expressed in the 
 writ (fe) ; land in bailable cases if there were a variance between the writ 
 and th6 declaration, the defendant would be discharged on a common ap- 
 
 * 
 
 (j) Arehbold's Prao. K. B. by T. Chitty, it is observed that it is extremely doubtful 
 
 4th edit. 117, 515; Arch. Prao. C. P. [19]; whether the practice of issuing general process 
 
 . Id. [40]. In the latter it is observed, "For- upon an affidavit in autre droit would now be 
 
 merly, upon general process, a plaintiff might allowed in any of the Courts, and refers to 1 
 
 declare in atitre droit as executor, &c. but Dowl. 97. And see 3 Wils.61; 2Bla. R. 722, 
 
 probably that would now be deemed irregu- showing that only in non-bailable actions can 
 
 lax." , such a variance between process and declara- 
 
 (z) Manesly v. Stevens, 9 Bing. 400; 1 tions be unimportant. 
 Dowl. P. C. 711, S. C. But note in that case (d) Cowp. 455; R. E. 16 G. 2,Teg. 1; Tidd, 
 
 the affidavit was general, as for a debt due to 9th ed. 460. 
 
 the plaintiff himself, and. the declaration was (c) 7 T. R. 80; 8 Id. 27; Cowp. 455; 1 Hen. 
 
 for a debt due to plaintiff as executor, a vari- Bla. 310; 6 Moore, 483; 2 Hen. Bla. 278; 2 
 
 ance which of itself discharged the bail. See B. & P. 858. 
 Usley V. Ilsley, 2 Tjr. 216; 2 Cromp. & Jer. (/) 5 Moore, 483. 
 
 831. Ig) 6 T. R. 363 ; 2 Wils. 393 ; 8 Taunt. 189 ; 
 
 (o) Id. ibid. See observations of Court in 2 Moore, 89, S. 0. ; Tidd, 9th ed. 450. 
 Ilsley V. Ilsley, 2 Tyr. 215; 2 Cromp. & Jer. (ft) 5'r. R. 402; Sed vide 2 East, 305. 
 
 331. (i) 1 Hen. Bla. 810; 2 Saund. 52 a; Tidd, 
 
 (6) Watson v. Pilling, 3 Bred. & B. 446; 9th ed. 450, 294; and see 10 Bar. & Cres. 
 
 6 Moore, 66, S. C. ; 3 Chit. Gen. Prao. 223. 
 182, (p). {k) 5 T. E. 402; B. Hilary, 8 Car. 1. 
 
 (c) And see 1 Aroh. Pr. C. P. [40] , where 
 
 (1) Vide Rogers v. Rogers, 4 Johns. 485 
 
 (.1) viae Kogers v. Rogers, 4 Johns. 486. 
 
 (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. 
 
GENERAL REQUISITES. 25? 
 
 pearance (/) ; but the proceedings were not set aside merely oo account "t- "^ 
 
 of a variance in describing the cause of action (m), and therefore the on- '^^^ 
 
 ly consequence of the mistake was that the plaintiff lost the security of si^^'o. 
 
 the bail. . ' _, 1 ,' 
 
 Ihe uniformity of process act, 2 W. 4, c. 39, imperatively required opsicgwowil 
 that the form of acHon shall be concisely stated in each of the writs there- ^''J' W" 
 by prescribed, whether serviceable or bailable ; and if the form should be °*'^" 
 omittted or subslantiaUp uary from one of those enjoined even in service- 
 able process, the writ would, on summons or motion, *be set aside, though [ *254: ] 
 " promises," omitting " ore " 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 
 
 Detinue'." 
 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 service^- 
 able or bailable, should apprize the defendant of the form of action hj 
 which he would afterwards be declared against, and therefore it is an in- 
 dispensable requisite of every declaration that it substantially adhere to 
 the form of action stated in the process as well in serviceable as bailabU 
 process, and if it deviate, the defendant may apply to the Court or a judgg > 
 to set aside the declaration for irregularity ; so that the plaintiff miist 
 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 tlie com^ 
 mencement of the declaration to state the form of action precisely as 
 in the writ ; but the forms of commencements of declarations prescribed by- 
 Reg. G-en. Mich. Tefm, 3 W. 4 (j9), conclude with, &c., and hence itis proba- 
 ble that it was not intended by the judges to state the form of action, but 
 that the declaration should immediately proceed to state the substanq^ 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, ;tben pie 
 deviation would constitute an irregularity and ground for setting aside the 
 declaratiouj but not a ground of deniurrer. 
 
 It has always been considered essential that the declaration should, 9,(1- Thefornii ^ 
 here to or proceed for the same cause of action as that expressed in ;:^e of^°ti^°" 
 affidavit to hold to bail, and that if it do not, the defendant *may apply in declara- 
 tions 'must 
 , (0 6 T.R. 36S; 2 Wils. 393; Tidd, 9th ed. Reynolds v. Welsh, 1 Crom. M. & Ros. 580; correspond 
 450, 451; but see 2 Moore, 301; 8 Taunt. 304, Hargreavesu. Holder, id.; and SChllity'SjGen. triththe 
 S. C. Prao; 468 to 470, affidavU td 
 
 ( m ) Tidd, 450, 451 , 9th ed. (p) See them, , ante, U2. f^n jo 
 
 («) Cooper V. Wheale, K. B. Mioh. T. 1835. (?) gee 3 Chitty's Gen. Prao. 243. j^,-; 
 
 legal Obs. 133, 134. (r) |Ball v. Hamlet, .1 Crpm. 1)1. & Ros., 57§; r *ocr t 
 
 (o) Anderson v. TJuojaas, 9 Bing. ;678 5 Reynoljdsj). Welsh., i^.: 580; HargreaveswHpl- L *00 J 
 IKiompson ». Dioas, 2 Dowle, 94; JB*rshali;. dier, ,j(^. .(/i):;, and .see .3. Cliit. iGejj. Piracies. 
 I^iomas, id. 504; Botton v. Jeffrey, id. 637; 
 
255 OF THE DECLARATION. 
 
 ni. 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 sta- 
 
 1. Should ted in the affidavit, the bail would even at that late stage of the cause, be 
 
 correspond relieved from responsibility (i!). 
 
 ■with pro- 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 (w) ; 
 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. 
 
 2dly. The Tbe declaration must allege all the circumstances necessary for the sup- 
 nmsrstate P°^* °f ^^^ 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 tres- 
 factsessen- pass quare clausum /regit, the name or abuttals of the close {x) ; though 
 siTpport of ^^ other actions the venue is no longer to be repeated in the body, but it 
 theaction. is to be Stated only once in the margin («/). These, and all other circum- 
 stances essential in law to the action, must be stated with such precision, 
 certainty and clearness, that the defendant, knowing what he is called up- 
 on 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 is- 
 sue ; and that the Court, consistently with the rules of law may give a 
 certain and distinct judgment upon the premises («). The general rules 
 as to what facts must be stated have been considered in the preceding 
 chapter (a), as wellas the inconveniences which may arise from the state- 
 ment of superfluous or unnecessary matter (bj. 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 declar- 
 ation would be but of little utility. We will presently consider the re- 
 quisites 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. 4. noth- 
 ing at the same instant that it is discovered or invented is perfect, but 
 becomes so only by frequent use and perhaps correction. 
 
 saiy. Of We have already considered the different degrees of certainty required 
 tM^ty^re- ^^ pleading, and we have seen that the certainty necessary in a declaration 
 
 quired in 
 
 deolara- (s) Scrivener v. Wathing, 2 Har. & V?ol. 8; the north, Lempriere v. Humphrey, 1 Har. & 
 
 tion(c). SChitty'sGen. Prac. 337. Wol. 170. 
 
 (t) Taunt. Eep. 107. (y) Keg. Gen. Hil. Term, 4 W. 4, r. 8. 
 
 (u) Fer Littledale, J., in Gray v. Harvey, (z) Cowp. 682; 6 East, 422, 423; 5 T. K. 
 
 1 Dowl. 114; 1 Arch. Prao. C. P. [40]. Sed 628; Vin. Ab. Declarations. 
 
 quare. . (a) Mnte, 214, 282. 
 
 (a) Reg. Gen. Hill. Term, 4 W. 4, r. V. In {b) Ante, 228,229. 
 
 trespass, the abuttals should be on, nottowards (c) Anie, 233 to 237. 
 
 (1) Vide Pelton v. Ward, 3 Caines, 77; Carpenter v. Alexander, 9 Johns. 291; Roget v. Me- 
 rit and Clapp, 2 Caines, 120. The declaration, in every case, must set out a good and sufficient 
 cause of action. Mackallt). Jones, 5 Gill & Johns. 65; 0. States Banli ii. 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; Traey v. Dalsin, 7 Johns. 76. 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 en- 
 title himself to recover. Bearddly v. Southmayd, 2 Green, 634. 
 
 (2) Vide Coffin v. Coffin, 2 Mass. 863. 
 
(JENEKAL REQUISITES. ' 256 
 
 is to a certain intent in general (d), which should pervade the whole dec- "i- the 
 laration, and is particularly required in setting forth the parties, time and ™™^ 
 other circumstances necessary to maintain the action (e). In assumpsit, sitesj && 
 the description of the contract, &c. by lohereas, or recital, is . not demur- 3, -yyiiat 
 rable (/), though it would be otherwise in trespass vi et armis (§■). degree of 
 
 certainty 
 1st. It must be stated with certainty who are the parties to the suit (A) ; ceSn^u ' 
 and therefore a declaration by or against " C. D. and company," not be- 0/ parties, 
 ing a corporation, is insufficient (i) (1) ; so though property be vested in 
 trustees (A) 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 (J) ; 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 instrttr 
 ment, 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 nu- 
 merous, afterwards to adopt the word "plaintiffs" or "defendants," 
 without again enumerating all the names (m). But accuracy must be ob- 
 served ; 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 defend- 
 ant may demur specially (0), though it would be otherwise if the mistake 
 
 (d) Jlnte, 234; Plowd. 84; Co. Lit. 308 a; (A) Com, Dig. Pleader, C. 18; see 1 Campb. 
 1 N. R. 173. 461, as to a declaration by a corporation. 
 
 (e) Com. Dig. Pleader, 0.18 to C. 27; Tidd, (i) 8 T. R. 508. 
 
 9th ed. 451. (fc) See ante, 14, 15. 
 
 (/) King V. Roxbrough, 2 Crom. & Jer. (I) 1 Leach, 4th edit. 513; vol. xxii. MS. 
 
 418; 2 Tyr. 468. Paper Books of Mr. J. Ashhurst, 216. 
 
 (g) 2Salk. 636; 1 Stra. 621; Com. Dig. (m) 1 Leach, 4th edit. 353. 
 
 Pleader, C; Andr. 282. When the proceed- (n) 1 N. R. 289; 6 Taunt. 121; 2 Marsh, 
 
 ings were by original, and the writ recited in 30i, S. C. ; 6 Taunt. 406. 
 declaration, it was otherwise, 1 Wils. 99; (o) Tyndall and another v. Ullesthorne, 3 
 
 Barns, 452; 2 Wils. 203. . Dowl. 2. But see 4 Moore & Scott, 417. 
 
 (1) Ace. Bently v. Smith, 3 Caines, 170. And actions, to be properly brought, must be com- 
 menced 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; Tomlin- 
 son 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 Blaokf. 50; 
 Marshall v. Hull, 8 Yerger, 101 ; Norcross v. Clark, 15 Maine, 80. It is a good plea in abate- 
 ment that a party sues or is sued by his surname only. Chappell v. Proctor, 1 Harper, 49; 
 Seely «. Boone, Coxe, 138; Lobat 1;. Ellis, 1 Taylor, 148. But in the case of two or more part- 
 ners 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 declara- 
 tion in behalf of a mercantile company, by the name of the^r7B, 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 w. Donald, 4 Munf. 430; Burnet v. Watson, 1 Wash. 372. And see Por- 
 ter V. Cresson, 10 Serg. & Bawle, 257. As to whether judgment by default could be sustained 
 against a mercantile company — the suit being against the^rm — 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 b6 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 Met* 
 calf, 473. 
 
 (3) Where a promise is made to a person or corporation by a wrong name, an action may be 
 brought in the true name, setting forth that the patties ar« the same. Lowell v. Moore, 1 Met» 
 
^56«t Oi* TfiE DECLARATION. 
 
 m. THE merely occurred ia the commencemeat. We have seen when the declaration 
 °^^ ^^J ■^3'^y f'^om the process in the name of the defendant, or may describe 
 siiESi &c. him with the alias dictus (jpi). In declarations upon contracts, it should be 
 8. What ' expressly stated by and with whom the contract was made (jq) ; and where 
 degree of there are two or more persons of the same name, they should be distinguished 
 hreqiSred ■^^°™ ®^°^ °^^^^ ^^ ^^^ insertion of some appropriate allegation, *as " the 
 r *257 1 "°'"' plaintiff," or " the now defendant," or " the said B. P. deceased," &c. 
 L ^ (r). In general, however, the neglect thus to distinguish the parties will 
 
 be aided by intendment, particularly upon a general demurrer or after 
 yerdict (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 yerdict, 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 sur- 
 plusage, 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 («/) ; 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 («). 
 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 (o). 
 
 Time, per- 2dly. The declaration in personal actions must in general state a time 
 statement '^^^'^ every material or traversable fact happened (p), and whenever here^ 
 of. tofore 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 (cJ), unless it constitute a material part of the con- 
 tract, &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. (z) 7 Taunt. 271. 
 
 (}) Ld. Raym. 899 j Com. Dig. Action on the (a) 1 Saund. 14 a, n. 1. 
 
 Caae for Assumpsit, H. 3, Pleader, C. 18, post. (i) Ring v. Roxbrough, 2 Crom. «& Jerv. 
 
 (r) 2 Wils. 386; Cro. Eliz. 267; Com. Dig. 4l8; 2 Tyr. 468. 
 
 Pleader, C. 18. (c) Per Buller, J., 5 T. R. 620, 624, 625) 
 
 (s) Id. ibid.; IN. R. 172. Com. Dig. Pleader, C. 19; Plowd. 24; 14 
 
 (0 1 B. & P. 69; Willes, 8. East, 291; Steph. 2d edit. 343. 
 
 (u) 16 & 17 Car. 2, o. 8; 4 Anne, o. 16; (d) Id.; 1 Saund. 24, n. 1; Co. Lit. 283 a; 
 
 Com. Dig. Action on the Case for Assumpsit, 2 Saund. 5, n. 3, 259, n. 2; Hawk. 11. Cr. '&. 
 
 H, 3; Willes, 5. 2, c. 25, s. 81; 6Taunt. 765; 2 Moore, 91. 
 
 (x) Ante, 231, 232; 4Moore & Scott, 417. (e) 4 T. R. 690; 10 Mod. 813; 2Campb. 
 
 (y) Willis, 8, 9. 307, 308. 
 
 oalf, 473; Charitable Association v. Baldwin, IMetcalf, 859 j Commercial Bank u. French, 21 
 Pick. 486; Med way Cotton Manuf, Co. v. Adams, 10 Mass. 860; 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 speeial de- 
 murrer. Hildreth v. Hawes, July, 1801, MS, Kent, C. J., cited 8 Gaines, 170, note, 2d edit. 
 
 (2) Vide Denison v. Richardson, 14 East, 300, 851; Phillip's Et. 164; Gordon v. Myers, 8 
 Halst. 69; Vanguilder v. Steele, 5 Halst. 233; Bond v. Central Bank of (Jeorgia, 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, 845. 
 
 (3) Vide Phillip's Ev. 164( The United States v. Vigol, 2Dan. 346; Cheetham v. Lewis, 8 
 Johns. 48 ; Tiffany v. Driggs, 13 Johns. 258 ; {lill d. Robeson, 2 Smedes & Marsh. 641 ; Andrews 
 V . Chadboume, 1 9 Barbour ( N . T. ) 147 ; Simpson v. Tallbot, 25 Alabama, 469. The text in the 
 fourth London edition, has the word "material," instead Of " necessary; " Brown v. Smith, 8 
 N. Hamp. 299. 
 
 (4) See Allen t>. Smith, 7 Halst. 159. 
 
GENERAL EEQUISITES. 257 
 
 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 (/). And in sta- °l^^ 
 ting that a deed, bill, or a promissory note, &c. "bears date " on a certain sites, &o. 
 day, or in describing an usurious contract "where time is the very gist of sdly. 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, pertainty 
 unless it be expressly alleged to have been its date (A) ; and it is no ob- '^^^'^^^ " 
 jection 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 *upou 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 (A), if in point of law there is no intrinsic impossibil- 
 ity that the time laid is correct (Z) . 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 accept- 
 ed 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 sufl&ces 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 {q} ; and where several trespasses 
 are stated to have been committed on divers days and times between a par- 
 ticular day and the commencement of the action, the plaintiff is at liberty 
 
 (/) 2East, 257; oJi<c, 187, 192. to be no ground of demurrer, first, because the 
 
 ig) Cowp. 671; 2 Stra. 806; 10 Mod. 313; year A. D. 1826 was clearly intended, for as 
 
 3 T. B. 531; Staph. 2d ed. 345. the year 1000 was mentioned, and then eight 
 
 (ft) Hawkey v. Borwick, 1 Tounge & Jery. and 26, the word eight must mean hundred; 
 
 376. and, 2dly at least the word must mean 1000 
 
 (i) 2 Stra. 806; 10 Mod, 313; 1 Younge & eight and 26, which would be 1034, and the 
 
 Jerv. 376. law does not recognize the impossibility of de- 
 
 (fe) Atkins V. Warrington, 7th June, 1827, fendent living ever since that time, and conse- 
 
 K. B., before the three judges, MS. Declara- quently there was nothing impossible in dee- 
 
 tion in assumpsit on the common counts ; 1st, laration. Holroyd and Littledale, Justices, 
 
 stated that defendant heretotbre, to wit, on the concurred. Judgment for plaintiEf. 
 
 1st day of November, A. D. one thousand eight (t) Steph. 2d edit. 344; see 2 Saund. 291 o, 
 
 (omitting hundred) and 26, at London, was in- note 1; Id. 171 a, note 1. 
 
 debted, &o., and afterwards stated " on the day (m) 1 Stark. 46. 
 
 and year aforesaid;" special demurrer, assign- (n) 3 Taunt. 137. 
 
 ing as cause that the time mentioned was non- (o) 4 East, 477. 
 
 sensical and absurd, and no year was men- (p) 6 M. & Sel. 75. 
 
 tioned; and joinder. Chitty for plaintiff, and (f) Co. Lit. 283 a. 
 Watson for defendant. Bayley, J., held this 
 
 (1) Vide Van Allen v. Bogers, 1 Johns. Gas. 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 oertiun day, without stating expressly, that it was 
 without date, diannis ti. Clark, 8 Gowen, 36. 
 
258 
 
 OF THE DECLABATION. 
 
 m. THE to prove a single act of trespass anterior to tlie first day ; though he can- 
 BEQri- "°'' Si^^ ii evidence repeated acts of trespass, unless committed during the 
 SITES, &o. time stated in the declaration (r). When in one continued sentence, or 
 8dly. What ^^ 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 
 fs^requfred ^''sspass, that the defendant, on, &c. at, &c., made an assault on the plain- 
 r *2'iQ i ^^^' '^'*'^ '""^'^ ^"*^ carried away a bag (s). And it is said that in aver- 
 '- J ring the performance of a contract, it is not necessary to state any partic- 
 
 ular day, unless time be material (<), and to a negative matter no time 
 need be alleged («). But there should in general be a distinct averment 
 of time to every material fact (a;). 
 
 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 com- 
 mencement 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, judg- 
 ment 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 elicit, &c. in Courts of 
 record (6), 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 admin- 
 istrator, after stating the promise to the intestate on the 2d January, A. D. 
 1832, afterwards stated that the letters of administration were gra)jted'to 
 the plaintiff at a prior date, viz. the 2d January, 1831, this obvious incon- 
 sistency was holden fatal on special demurrer, although the latter date 
 
 (r) 1 Saund. 24, note 1; 1 Stark. R. 351. see Com. Rep. 480; 1 Chit. Grim, l&w, 219. 
 
 (s) Cro. Jao. 443, 262; Andr. 251; Com. (y) 2 Saund. 291, n. 1, c. As to this, see 
 
 Dig. Pleader, C. 19; 1 Ld. Raym. 576; Sir \V. post, 263, et subs.; and 2 Crom. & Jer. 418, 
 
 Jones, 56. 464 ; 2 Tyr. 468, S. C. 
 
 (0 Cro. Eliz. 880. (z) 2 Saund. 171 b.; Com. Dig. Pleader, 0. 
 
 (u) 5 T. B. 616; Plowd. 24 a; Com. Dig. 19. 
 Pleader, C. 19. (») 16 & 17 Car. 2, o. 8; Com. Dig. Plead- 
 
 {x) 14 East, 300; 11 Price, 400; and see er, C. 10. 
 note {d) infra. As to the legal import of the (6) 4 Anne, c. 16. 
 words "immediately," and "then and there," (c) 4 Geo. 2,0. 26; Willes, 600. 
 
 (1) Aoc. Lowry 1). Lawrence, 1 Caines, 69; Cheethami). Lewi3,8 Johns. 42; Waring ». 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. 263; Crouse v. Miller, 10 
 Serg &Rawle 155 See Shaw u. 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 Metoalf, 168; Church 
 ■u. 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, 168. 159; Vide BuokUy v. Kenyon. 10 
 East, 139. 
 
 (4) Vide Allaire v. Ouland, 2 Johns. Cas. 66. 
 
GKNEBAL REQUISITES. 260 
 
 was preceded by an allegation that the grant was after the death, and the m- i5b 
 time was laid under a videlicet (d). oaifKaAL 
 
 Since the uniformity of process act, 2 W. 4, c. 39, all the new writs sSr&a, 
 _ are considered the commencement of the action, and not as before mere oa,, 'Ji . 
 process to bring the defendant into Court ; so that now, *if tlie writ be is- degree of 
 eued before the cause of action is complete, the plaintiff would be non- oertaintyia 
 suited, if the defendant plead so as to raise the objection (e) (1) arid the ™"l""'^- 
 above expressly requires that the true day of issuing the process shall be t *^®^ J 
 stated therein ; and Eeg. 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 Eeg. 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 en- 
 titled of the very day of the month and year when the same is filed or de- 
 livered. But the neglect to entitle the declaration of the proper day, The pres- 
 month, and year, is probably no ground of demurrer, but merely an irreg- *."' P'*^ 
 nlarity to be taken advantage of by summons or motion (/). The dec- ciarilTg'iV 
 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 (A) (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 (/) Keal «. Richardson, 2 Dowl. 89 ; 3 Chit^ 
 Crom. & Jerv. 468, S. C, ty's Gen. Prao. 463, 464. 
 
 (e) Alston ». Underhill, 1 Crom. & M. 398, (g) Dapre v. Langridge, 2 Dowl. 584; 3 
 768; 8 Tyr. 427; Steward v. Layton, 3 Dowl. Chitty's Gen. Practice, 464. 
 
 430; 3 Chitty's Gen. Prac. 159. (A) Ante, 259. 
 
 (1) Wingate v. Smith, 20 Maine, (2 Appleton.) 287; Collier v. Crawford, Minor, 100; Reed 
 V. Brewer, Peck, 275. 
 
 ■ (2) Boyce v. Morgan, 3 Gaines, 133; Waring v. Tates, 10 Johns. 119; Harper v. Montgom- 
 eiy, 5 Litt. 347; Band v. Griffith, 11 Serg. & R. 130; Gordon v. Kennedy, 2 Binn. 287; Benjia 
 V. Faxon, 4 Mass. 263. 
 
 (3) SeeBemisv. Faxon, 4 Mass. 263. 
 
 (4) In Connecticut the service of the init is the commencement of the action. Clark v- 
 Helms, 1 Root, 487; Jencks v. Phelps, 4 Conn. 149; Spalding v. Butts, 6 Conn. 30; Gates ». 
 Bushejl, 9 Conn. 530; and the return is evidence of the time of commencement. Perkins v. 
 Perkins, 7 Conn. 558. In other states the iss.uing or suing out of the writ, Carpenter v. Bnt- 
 terfield, 3 Johns. Ca. 145; Iiewry «. Lawrence, 1 Caines, 69; Bryce o. Morgan, 3 Gaines, 133; 
 Bird V. Caritat, 2 Johns. 342; Hoganv. Cuyler, 8 Cowen, 203; Parker v. Colcord, 2 N. Hamp. 
 
 36; Ford e. Phillips, 1 Pick. 202; Reed v. Brewer, Peck, 276; Thompson v. Bell, 6 Monr. ' 
 560; Day V.Lamb, 7. Vermt. 426; Cox v. Cooper, 3 Alabama, 256; Chiles v. Jones, 7 Dana, 
 545; Whitaker v. XurnbuU, 3 Harr. 172; Feazle v. Simpson, 1 Scammon, 30; Bunker v. Shed, 
 8 Metcalf, 150; Caldwell v. Heitshu, 9 Watts & Serg. 51. The date of the writ is prima facie, 
 but not conclusive eviden<$ of the time when the action was commenced. Johnson v. FarweU, 
 7 Greenl. 373; Day v.Jja.mh, 7 Yermt. 426; Burdick v. Greece, 18 Johns. 14;Bron8on v. Earl, 
 17 Johns. 63; Bunker p. Shed, 8 Metcalf, 150. 
 
 To prevent the bar of the statute of limitations, filling the writ in good faith will be deemed 
 a commencement of the aotion, although it is not served till several days afterwards. Gardner 
 V. Webber, 17 Pick. 407. See Haughton v Leary, 3 Dev. & Batt. 21; Boughton v. Brace, 20 
 Wendell, 234. And the date of the writ is, pxima facie, the commencement of the action, 
 though the date is only a day or two before the action would be barred by the statute of limita- 
 tions, and though the writ is not served until several weeks after its date, and no reason is 
 shown for the delay. Bunker v. Shed, 8 Metcalf, 150. 
 
 In some cases, although the writ is actually made, yet the action will not be considered as 
 commenced, until the plaintiff elects to use it; as where a demand and refusal are necessary tq 
 give a right of action, — the writ is made, but with a view not to be used until such demand 
 and refu.sal, — the use of it will be the commencement of the action. Graves v. Ticknor, 6N, 
 Hamp. 637; Robinson v. Burleigh, 5 N. Hamp. 225. ' 
 
 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'J^ppening of a certain event, the i^ction wUI not b^ 
 
 Vop. I. 87 
 
260 
 
 OP THE DECLARATION, 
 
 ni, THE 
 
 GENSRAI, 
 
 ^jEQTTI- 
 
 SIIEa, &C. 
 
 Sdly.What 
 degree of 
 certainty 
 is requir- 
 ed. 
 
 [ *261 ] 
 
 Of certain- 
 ty in stat- 
 ing the 
 cause of 
 action. 
 
 be issued until after the cause of action is complete (1). The Ecg. Gen, 
 Hil. Term, 4 W. 4, prescribes that the date of the first writ shall be 
 stated in the issue, and consequently it will afterwards appear on the face 
 of the nisi prius record. The pleader should therefore always ascertain 
 the date of the first writ, and state every fact to have occurred before 
 that day. When, however, the exact day is immaterial, as in an action 
 for verbal slander, the statement by mistake in the declaration that the 
 words were uttered after the writ issued, but before the title of the dec- 
 laration, 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 sufi'ered the plaintiff to have 
 obtained a verdict, if the evidence had shown that the action was prema- 
 turely brought (i) (2). 
 
 3dly, It was also essential that a place (B) should be alleged where 
 every fact material and traversable occurred (A). 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 claiisum 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, 
 every material fact must be averred to *have occurred within the jurisdic- 
 tion (Q. We will presently consider the doctrine of venues. 
 
 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 be- 
 fore 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 (w) ; and a declaration in replevin for taking divers 
 goods and chattels of the plaintiff, without naming them, is bad^ for un- 
 certainty (o), and a declaration in trespass for taking fish, &c. or divers 
 goods and chattels, without specifying the number or quality, is too gen- 
 eral (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. 
 
 (ft) 5 T. E. 620; 14 Bast, 300, 301. 
 
 (I) Bead v. Pope, 1 Crom. M. & Eos. 302. 
 
 (m) Ante, 236. 
 
 (n) Id.; 13 East, 102. 
 
 (0) 1 Moore, 886; 7 Taunt. 642; S. C. 8 
 Moore, 379. 
 
 (p) Com. Dig. Pleader, C. 21. 
 
 (g) AnU,2?)<o. 
 
 (r) Ante, 228, 229; Moore, 467. 
 
 deemed to have been commenced until the service of the writ. Seaver v. Lincoln, 21Piek. 267; 
 Badger v. Phinney, 15 Mass. 359. 
 
 (1) Swift V. Croclcer, 21 Pick. 241; Ilsley v. Jewett, 2 Metcalf, 168; Church v. Clark, 21 
 Pick. 310. 
 
 (2) See Bemis ». Faxon, 4 Mass. 263; Crouse v. Miller, 10 Serg. & Rawle, 155; Shaw ». 
 Wile, 2 Rawle, 280. But see Ward v. Honey wood, Doug. 61; Cheetham v. Lewis, 3 Johns. 44; 
 ante, 259 in note. 
 
 (3) Vide Deniaon v. Eichardson, 14 East, 300, 351; Qardner v. Humphrey, 10 John. 53. 
 
 (4) In an action on the case against a Jiidge of Probate, for appointing, as guardian to a 
 minor, a man who was insolvent, and neglecting to take security from him for the faithful dis- 
 charge 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, 816. 
 
ITS PABTS AND PABTIOULAB REQUISITES. *262 
 
 m. THE 
 
 G&NERAIJ 
 
 eral rules will be better considered whea we examine the particular parts 
 of the declaration. It may here suffice to observe that the want of suffi- j 
 
 cient certainty is generally aided by verdict at common law (s) ; or even sites, &c, 
 by the defendant's pleading to the declaration (t), or by demurring to the 
 whole, where only a part of the count is bad (m) ; but a*judgment by de- 
 fault for the plaintiff does not cure the defect of uncertainty in not stat- 
 ing the description and quantity of goods under the statue of jeofails (a;). 
 
 IV. THE SEVERAL PARTS AND PARTICULAR REQUISITES iv. im 
 OP DECLARATIONS. ^^^' *«• 
 
 As .explanatory of the following subdivisions and observations, it may 
 be expedient here to give the form of a declaration in assumpsit contain- 
 ing most of the parts to be commented upon by way of example. 
 
 In the King's Bench, lor " 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 m°^ 
 
 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 ™®'^J*" 
 attorney, to commence and prosecute a certain action, to wit, an action at the suit of the plaintiff S^? 
 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 ^°'*"V'*" 
 to the now defendant: he, the now defendant, then promised the plaintiff to observe and ^ .', 
 perform his duty as such attorney for the plaintiff in the premises. And the plaintiff saith J'O"^'"*™" 
 that he, confiding in the said promise of the defendant , did afterwards, to wit, on the day and p "' . 
 year aforesaid, at the request of the defendant, retain and employ him as such attorney to com- ^™''^®> 
 mence and prosecute the said action against the said G. H. in tiie Court of K. B. at Westminster, ■'*-^^'" 
 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 pur- 
 suance thereof then commenced and prosecuted the said action. And although such proceed- 
 ings were thereupon had in the same action, that afterwards, to wit, on, &c. a certain issue [or Pefend- 
 "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 Conse- 
 employment, to cause and procure dite 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- Conclu- 
 ise in that behalf, did not nor would cause or procure due care to be observed in so ascertaining gjon. 
 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 ar- 
 and 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, &o. the plain- of parts of 
 tiff became and was nonsuited therein. And by reason thereof the plaintiff hath been and is a deslkra- 
 greatly delayed and hindered in the recovery of the said money so claimed by him as aforesaid, lion in aa- 
 and the plaintiff hath incurred and paid, and hath become liable to pay, to the said G. H. divers aumpsit. 
 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 ex- 
 pense, 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 there- 
 upon he brings suit, &c. 
 
 (j) 2 B. & P. 265; N. R. 172; 2 Saund. 74 b; C. 32. 
 
 1 Saund. 228 a; ante, 256. (a) 4 Anne, c. 16; 7 Taunt. 642; 1 Moore, 
 
 (i) 2 Saund. 74 b; 6 B. & C. 295; ante, 386, S. C. ; 5 Bar. and Aid. 712. But see the 
 
 266. late case, 8 Moore, 379, making this queation- 
 
 (u) Saund. 379, S80; Com. Dig. Plead, able. 
 
■¥^3* OP THE DBCLARAtlON, 
 
 lv.*tt *'We will consider the above form, and its several joor^s, and those of a 
 PABW, &c. declaration in general, under the following heads, viz. 
 
 1. The title of the Declaration as to the Court. 
 
 2. The title of the Declaration as to the Time when it is filed.or deliv- 
 ered. 
 
 3. The venue in the margin. 
 
 4. The commencement. 
 
 5. The body. 
 
 Inducement. 
 
 Consideration. 
 
 Promise. 
 
 Averments. 
 
 Breach. 
 
 Consequent damages. 
 
 6. The Conclusion. 
 
 7. The Frofert of Deeds, Probates, and Letters of Administration, &c. 
 
 8. The Statement of pledges to be discontinued. 
 
 9. Other miscellaneous points. 
 
 bf*the*''' ■'•• ^^^^^ °f cowl formerly. In the King's Bench, when the proceed- 
 Court in ings Were by bill, the declaration was entitled with the name of the pro- 
 th« former thonotary or chief clerk, (now " EUenborough,") for enrolling pleas in 
 piwstiBe. jj^Yil causes, depending between party and party, on the plea side of the 
 Court, and particularly so when by bill (jf). When the proceedings were 
 by original, the declaration was usually entitled, " In the King's Bench; " 
 iand in the Common Pleas and Exchequer, the name of the Court was su- 
 perscribed, as in a declaration by original in the King's Bench. 
 
 But now, and since the abolition of the previous varying writs to bring' 
 
 the defendant into Court in personal actions, by the uniformity of process 
 
 t -act, 2 W. 4, c. 39, the Reg. Gen. Mich. T. 3. W. 4, 1. reg. 15, orders 
 
 * ■ that " every declaration shall in future be entitled in the proper Court," 
 
 and if that title be omitted or be merely indorsed, the Court will set aside 
 
 the declaration for irregularity (z). 
 
 24. The 2. Title as to time. The title of the Term, with reference to the an- 
 
 *u* ?f "**" cient proceedings ore tenus,, was considered as a statement or memoran- 
 
 88 tb time, ^"iii of the time when the plaintiff and the defendant came into Court, and 
 
 in form alleged his cause of complaint (a). This could then only be in 
 
 term time, when the defendant was in Court ; consequently a declaration 
 
 . must formerly in general be entitled in term (b). It was also a general 
 
 -^J!l rule that the declaration should be entitled of *the term in which the writ 
 
 to'^erm.** was returnable, or of that of the defendant's appearance, and if it were 
 
 r *264 1 entitled of a subsequent term it was irregular, and a judgment signed for 
 
 want of plea thereto was also irregular (c). A declaration by bill must 
 
 regularly have been entitled of or after the day on which the bail had 
 
 been filed or an appearance entered, because the bill, of which it is a 
 
 copy, cannot be filed until the bail is put in, which alone in the King's 
 
 Bench gives the Court jurisdiction, and when by reference to the practice 
 
 of declaring ore tenus the defendant was in Court to hear the cause of 
 
 (y) Tidd, 9th ed. 48. {b) The term in the midst of which the 
 
 {z) Eippliogc. Watts, E. B. Mich. T. 1835; king dies, may be entitled in the first year of 
 
 Legal Observer, 6 Dec. 1886, p. 86. the succeeding king's reign. 1 Dowl. Bep. 4. 
 (o) 1 T. R. 116. (c) 1 Marsh. 841 ; 8 T. R. 624. 
 
Its i»ARTS AND PABTIdtJLAB BBQTttSITES. 264 
 
 complaint (d) (1) ; unless in the Case of a declaration de bene esss. t^- im 
 ThereforCj if there be two defendants, and one of them could not be'^'^*'*'' ^°' 
 served or arrested on the first process, and be were brought into Court ^^'y- ?^''l« 
 upon another writ, returnable in a subsequent term, the declaration should ** '" *'"*' 
 be entitled of the last term (e). So where one of several defendants had 
 been outlawed, the declaration must be entitled after such outlawry was 
 complete (/) ; and where a sole defendant could not be served or ar- 
 rested on process returnable in one term, and an alias returnable in the 
 next was issued, the declaration might and pierhaps should have been enti'- 
 tied of the last term (g-). In these cases, however, the plaintiff could 
 not upon a declaration in chief give in evidence a cause of action arising 
 after the first term (A) ; though a declaration by the bye, (now not al- 
 lowed, not being founded on the original process, might have been entitled 
 of the second term, and the plaintiff therein might give in evidence a 
 cause of action arising after the first (i) (2). There were formerly 
 many decisions as to when or not a special title was requisite or proper, 
 but which now are useful in explanation of the previous practice (A). 
 
 When on the face of the declaration, entitled generally of the term, it Conse- 
 appeared that the cause of action accrued after the first day thereof, the mlstek °' 
 defendant might demur specially (Q. But it was holden not to be a title before 
 ground of error to entitle the declaration of the term generally, although 2 w. 4, o. 
 the declaration showed that the cause of action accrued after the first day ^^^^^ 
 of the term and during its currency (m). The Court would formerly in rules, 
 any case give leave to amend on payment of costs (re) (3). And it has 
 been holden, that if after verdict it be made to appear upon motion in ar- 
 rest of judgment that the bill was filed and declaration delivered after 
 the cause of action had actually accrued, *the plaintiff was entitled to [ *265 ] 
 judgment without any amendment, for though the declaration being gener-: 
 al,, relate prima facie to the first day of the term, yet the bill being filed 
 on a subsequent day, all the subsequent proceedings related thereto by 
 the course and practice of the Court of which, if error were brought, ^ 
 the Court would ex officio take notice (o) ; and therefore the fgen- 
 eral title was aided by reference to the time of filing bail (A) : 
 and in another case it was held that after verdict the only course 
 was to allege diminution {q"). In general it is no ground of error 
 upon a judgment of an inferior Court, that the plaint was levied before 
 
 (rf) 2 Lev. 13, 176; 1 Ventr. 136; Com. utes of jeofail, Cro. Eliz.325; Cro. Car. 272, 
 
 Dig. Pleader, C. 8; Kep. Temp. Hardw. 141; 282, 295; 1 Show. 147; Sir Wm. Jones, 304. 
 
 Tidd, 9th ed. 326; 1 B. & P. 367; 8 T. B. (m) 2 Bing. 469; 10 Moore, 194; 1 M'Cle. 
 
 456. &Y. 202,S. C. 
 
 (e) 1 Wils. 242. (n) 7 T. K. 474; 1 Wils. 78; Tidd, 9th edit. 
 
 (/) 1 East', 183; 1 Wils. 78. 426, 427; 2 Chit. Eep. 22. Amendment not 
 
 (g) 3 T. B. 627. allowed in penal actions, 6 Taunt. 19; 1 Marsh. 
 
 (ft) Id. 624. 419i S. C. 
 
 (e) Id. 627. (o) 2 Lev. 176; 3 Salk. 9; 1 T. R. 118; 1 
 
 (*•) See Chitty on Pleading, 5th ed, 293, 294, Vent. 264; 1 Sid. 873, 432; Bui. N, P. 187; 
 
 and 2 Crom. & Jer, 464. Tidd, 9th ed. 428; ante, 217, 210. 
 
 (I) 1 T, E. 116. The demurrer should be (p) 2 Lev. 13; 176; 1 Vent. 135; Bui. N. 
 
 special, 1 Stra. 21. It seems safer to demur, P. 137, 138; Carth, 114, 115; Tidd, 9th ed. 
 
 or the objection may be aided as a jeo&il after 428. 
 
 verdict by5G. l,c. 13; seeAndr. 13;2Bing. (?) Garth. 288, 289; 2 Lev. 176; and see 
 
 469; 10 Moore, 194; 1 M'Cle. & Y. 202 : al- oases in note (o), supra. 
 though not perhaps by any of the previous stat- 
 
 (1) Vide Sabin v. Wood, 10 Johns. 219. 
 
 (2) Bustoni;. Owston, 2 M'Clell. & Toung, 202. 
 
 (3) See 1 Met. & Perk. Dig. Tit. Amendment. 
 
266 OP THE DECLABATIONj 
 
 rv. ITS the cause of actioa accrued (r). By an express provision (s) these ob- 
 PAKTs, 0. JQgtJQjig are aided in the court of Common Pleas at Lancaster. And in 
 ^'y- ■'•''^^ trespass, with a continuance after the term of which the declaration was 
 entitled, the Court refused to arrest the judgment Q). 
 
 If the action were commenced before the cause of it accrued, the de- 
 fendant might have pleaded that matter in abatement (m). Where the 
 proceedings were entered with a general memorandum of the term, and 
 the cause of action appeared in evidence to have arisen after the first day 
 of the term, the plaintiff would be nonsuited, unless he produced or proved 
 the writ, and thereby showed that it was really sued out subsequently to 
 the cause of action (i>) (1). And where in a similar case the trespass 
 complained of was admitted by the defendant's plea of sow assault demesne, 
 the Court held it to be well enough, for the plaintiff need not give any 
 evidence on that plea, unless to aggravate damages, and the Court would 
 not nonsuit him, because it was amendable by a new bill (to). 
 
 The declaration might also be amended in this respect at the instance 
 of the defendant, if necessary for his defence. Thus where the declara- 
 tion was entitled of the term generally, and the defendant pleaded plene 
 administravit (x), or a tender made before the exhibiting of the bill, up- 
 on which he would give in evidence an administration of assets, or a ten- 
 der made between the first day of term and the day of suing out the writ, 
 it was held that he should either call upon the plaintiff to entitle his dec- 
 laration properly (?/) ; or should plead the fiction of the Court specially 
 (2), without calling upon the plaintiff to alter his declaration; or should 
 prove or produce the writ on the trial («). And where the declaration 
 was entitled generally of the term, it was held that the defendant might 
 £ *266 ] give evidence at the trial *of the time when it was actually filed in in sup- 
 port of the plea, that the cause of aetion did not accrue within six years 
 next before the exhibiting of the bill (a). But where the plaintiff im- 
 properly commenced his declaration with a special memorandum, stating 
 that the bill was exhibited upon a certain day in vacation, the defendant's 
 only course was to move to set aside the special memorandum {¥), 
 Theprcs- By the present practice every declaration in a personal action com- 
 tiM a?to »'*«™cec? in either of the superior Courts, (Reg. Gen. Mich; T. 3 "V^. 4, reg. 
 the title of 15, and Hill. T. 4 W. 4, reg. 1,) is to be entitled of the day of the 
 tivM. month and year when actually filed or delivered. The neglect so to enti- 
 tle the same would in general only be an irregularity and not a ground 
 even of special demurrer (c), or for a summons to compel plaintiff to state 
 the proper title (ri). The date of the writ need not, we have seen, be 
 stated in the declaration, though it must in the issue (e). As the above 
 
 (r) 3 B. & Aid. 605. 638; 1 Wila. 39, S. C. 304; Cowp. 456; Tidd. 
 
 (s) 39 & 40 Geo. 3, c. 105. 9tli ed. 427. 
 
 («) Andr. 250. (2) 3 Burr. 1241; Tidd, 9th ed. 427; 4 Esp. 
 
 (u) Com. Dig. Abatement, G. 6. Kep. 72. 
 
 (») 2 Saund. 1, n. 1; Burr. 1241; 1 Bla. (a) 5 B. & C. 149. 
 
 B«p. 312; Bui. Ni. Pri. 137; 5 Esp. 163; 8B. (6) 7 B. &C. 407. 
 
 & C. 329. (c) Neal 0. Kiehardaon, 2Dowl. 89; 3 Chit- 
 
 (m) 2 Stra. 1271 ; 1 Wila. 171. ty's Gen. Prac. 463. 
 
 \x) Rex temp. Hardw. 141; 1 Sid. 433; (rf) Wilkes ©.Halifax, 2 Wila. 256; Thomp- 
 
 Tidd, 9th ed. 427. son ». Marshall, 1 Wils. 304. 
 
 (1/) 4 Eap. 72; 2 Saund. 1, n. 1; 1 Stra. (e) Du Preu. Langridge, 2 Dowl. 584. 
 
 (1) See ante, 259, 260, in notes. 
 
 (2) Tide Dndlow v. Watchorn, 16 East, 89. 
 
ITS PARTS AND PAHTICULAB HEQUISITE8. 266 
 
 rules extend only to personal actions commenced in the superior Courts, iv. its 
 and not to scire facias or ejectment, a declaration in ejectment is to been- ^^"'™' *"• 
 titled usually of the preceding term as heretofore (/), unless where the ^dly- Title 
 right of entry has accrued pending or after an issuable term, when the ^ *° *""*' 
 statute 1 W. 4, c. 70, sect. 39, gives a new and peculiar right of declar- 
 i^S (§■)• When an action has been removed from an inferior Court, the 
 title is to be of the term in which the removing process was returnable. 
 
 As the Courts by Reg. Gen. Hil. T. 4 W. 4, at length ventured to pro- Repetition 
 mulgate that there should be no statement or repetition of venue or place of time 
 in the body of a declaration when immaterial, except in trespass quare clau- *'^'^°*'*'- 
 sum /regit, or when local description is requisite ; it is to be hoped that 
 ere long there will be a similar rule abolishing the necessity for repetition 
 of time, when precise time is immaterial, but till then time must be repeat- 
 ed, as by the word then, in every distinct sentence (A). 
 
 Immediately after the title of the term follows the statement in the mar- zA\y. The 
 gin of the venue or county in which the facts are alleged to have occurred, J^cnwe. 
 and in which the cause is to be tried (1). The doctrine of venues was ex- 
 plained and elucidated by Lord Mansfield in the case of Fabrigas v. Mos- 
 tyn (i), and in Co. Lit. 125 a, n. 1, " There is a substantial and a for- 
 mal distinction as to the locality of trials. The substantial distinction 
 with regard to matters arising within this realm is where the proceeding 
 is in rem, and where the effect of the judgment *could not be had, if it were [ *267 ] 
 laid in a wrong place ; as in the case of ejectments, where possession is to 
 be delivered by the sheriff of the county ; and as trials in England are in 
 particular counties, and the officers are county officers, the judgment could * 
 not have effect if the action were not laid in the proper county (ki). So, 
 Vith regard to matters, that arise out of the realm, there is also a substan- 
 tial distinction of locality, for there are some cases that arise out of the 
 realmj which ought not to be tried any where but in the country they arise ; 
 as if two persons fight in Prance, and both happened casually to be here, 
 one should bring an action of assault against the other, it might be a doubt 
 whether such an action could be maintained here ; because, though it is not 
 a criminal prosecution, it must be laid to be against the peace of the king, 
 but tjie breach of the peace is merely local, though the trespass against 
 the person is transitory (T) (2). So if an action were brought relative to an 
 estate in a foreign country, where the question was a matter of title only, 
 and not of damages, there might be a solid distinction of locality " (m). 
 
 " The formal distinction arises from the mode of trial ; for trials in Eng- 
 
 (/) Doe dem. Fry v. Eoe, 3 Moore & Scott, A. a; Vin. Ab. Trial, H. a. 2, &o. and Place, 
 
 370; Doe dem. Gillet v, Roe, id. 876; 1 Crom. 7 Co. 3, Stephen, 2cl edit. 328. 
 
 M. & Bos. X9; i Tyrw. S. C. ; Doe v Evans, 2 (fc) 7 T. R. 587, 588; Post, 268. 
 
 Adol. & El. 11; 1 Bing. N. C. 253; 1 Dowl. 4. (l) Sed quare, for the contra pacem is not 
 
 (g) 1 W. 4, c. 70, sect. 36. now traversable, see 2 Bla. Rep. 1058; Vin. 
 
 (ft) Ante, 259, note (d). Ab. Contra Pacem. 
 
 (i) Cowp. 176, 177. See 2 Camp. 274. (m) 1 Stra. 646; 4 T, R. 503. Sed quare. 
 
 And as to venues in general, See Com. Dig. Ap- if there be no court of judicature to resort to 
 
 tion, N. and Pleader, C. 20; Bao. Ab. Action, abroad. Id. Ibid. .6 East, 599. 
 
 (1) Ifthe venue is substantially laid it is sufBeient. Gassett v. Palmer, 3 M'Lean, 105. 
 Where no venue is laid in the body of the declaration, reference must be had to the margin, and 
 the venue there is sufficient. Slate v. Post, 9 John. 81 ; Capp v. Gilman, 2 Blackf. 45. 
 
 In Massachusetts the venue in a transitory action is matter of form, and an amendment, chang- 
 ing the venue, made after general issue was pleaded, may be allowed. Gay v. Homer, 18 Pick. 
 635. 
 
 (2) But see Smith e. Bull, 17 WendeU, 328. 
 
267 OP THE DECLABATIOir, 
 
 IV. iM land being by jury, and the kingdom being divided into counties, and each 
 ™' "■ county consideFcd as a separate district or principality, it is absolutely 
 Vmul^^ necessary that there should be some county where the action is brought in 
 particular, that there may be a process to the sheriff of that county to bring 
 a jury from thence to try it (w). This matter of form- goes to all cases 
 that arise abroad ; but the law makes a distinction between transitory and 
 local actions. If the matter, which is the cause of a transitory action, arise 
 within the realm, it may be laid in any county, the place not being material ; 
 as if an imprisonment be in Middlesex, it may be laid in Surrey, and 
 though proved to be done in Middlesex, it does not at all prevent the plain- 
 tiff from recovering damages. The place of transitory actions is never 
 material, except where by particular acts of parliament it is made so ; as 
 in the case of churchwardens and constables, and other cases which require 
 the action to be brought in the proper county. The parties, upon sufficient 
 ground, have an opportunity of applying to the Court in time to change 
 the venue, but if they go to trial without it, that is no objection. So all 
 actions of a transitory nature that arise abroad may be laid as happening 
 In an English county ; but there are occasions which make it absolutely ne- 
 cessary to state in the declaration that the cause of action really happened 
 abroad ; as in the case of specialties, where the date must be set forth, if 
 the declaration state a specialty to have been made at Westminster, in 
 Middlesex, and upon producing the deed, it bear date at Bengal, the ac- 
 [ *268 ] tion is gone (o), *because it is such a variance between the deed and the 
 declaration as makes it appear to be a different instrument (1) ; but the 
 • law has in that case invented a fiction, and has said, the party shall first 
 set out the description truly, and then give a venue only for form, and for 
 the sake of trial by a videlicet in the county of Middlesex, or any othe» 
 county." Prom these observations it appears that the points as to venues 
 may be considered practically, with reference, 1st, To where, or in what 
 county, the venue is to be laid ; 2dly, How, and in what parts of the dec- 
 laration, it is to be stated ; and 3dly, The consequences of mistake and 
 when they are aided, 
 
 1st. The venue is either local or transitory ; if local, it must be laid and 
 the cause be tried in the county in which the cause of action arosd, or the 
 injury was really committed, although even then subject to be tried by the 
 court or a judge in any other county or place under 3 & 4 W. 4, c. 42, 
 sect. 22. And if the venue be transitory, it may be laid in the declaration 
 and the cause tried in any county (jo) subject also then to its being changed 
 by the Court in some cases, if not laid in the county where the cause of 
 action really arose (9). We will consider when the venue is local or 
 transitory at common law, anS when it is local by statute. 
 
 When the cause of action could only have arisen in a particular'place or 
 country, it is local, and the venue must be laid therein. As in real actions, 
 mixed actions, waste, quare impedit, or ejectment, for the recovery of the 
 seisin or possession of land, or other real property (r). So actions, though 
 
 (n) Co. Lit. 125 a, b. ■ the venue after it has been changed on the de- 
 Co) Sed qv0re; and vide pori,270 and n.(q). fendant's application, id, 611 ; and see fully S, 
 (p) 2 Saund. 74, note 2; Gilb. C. P. 84. Chitty'B Gen. Prao. 646 to 658, for the recent 
 (q) As to changing the yenue, see Tidd, 9th decisions as to changing venue. 
 edit. 601. When the plaintiff may bring back (r) 4 T. R. 504; 2 Bla, Kep. 1070; Com, 
 
 (1) Vide Alder v. Griner, 18 Johns, 450. 
 
ITS PARTS AND PARTICULAR REQUISITES. 268 
 
 merely for damages, occasioned by injuries to real property, are local, as it- im 
 trespass or case for nuisances (s) (1), or waste, &c. to houses, lapds, ^^^'^^ ^°- 
 water-courses, right of common, ways, or other real property, unless there ^^'y- The 
 were some contract between the parties on which to ground the action (<) yf^^l, 
 (2). And if the land, &c. be out of this kingdom, the plaintiff has no-vonueis* 
 remedy in the English Courts ; at least if there be a Court of justice in local, 
 the country in which the land is situate, to which he may resort (u). 
 When the parties consent, with leave of the Court, to try a local action in 
 another county, such consent should appear upon the record (a;), as it 
 does by suggestion when the Court or a judge order the trial or inquiry to 
 take place in another county under 3 & 4 W. 4, c. 42, sect. 22. Wiiere, 
 however, an injury has *been caused by an act done in one county to land, [ *269 ] 
 <fec. situate in another (;y) ; or whenever the action is founded upon two 
 or more material facts, which took place in different counties, the venue 
 may be laid in either (s^) (3). The venue in replevin is local (o) (4). 
 
 In action of debt, or in scire facias on a recogniziance of bail by bill, 
 when that process, now abolished, was in force, and in action of debt on 
 a judgment of a Court of record, the venue must be laid in the county 
 where the record is (6) ; as in Middlesex, upon the judgment or recogni- 
 zance of either of the superior Courts at Westminster (6) ; and in scire fa- 
 cias on a recognizance of bail by original in K. B. the venue might be 
 laid in Middlesex, though all the previous proceedings were in another 
 county (c) (6). Upon a recognizance of bail in C. P. the venue might in 
 scire facias be in the county where the bail piece was taken, or in Mid- 
 dlesex (rf). But a scire facias on a judgment, being only a continuation 
 of the former suit, and not an original proceeding, must be laid in the 
 county where the venue was first laid (7), the defendants being supposed 
 
 Campb. 266, S. C.) 7 Co. 1; 3 Leon. 141; 
 
 Dig. Action, N.; 7 T. B. 587, 588; Cowp. 2 T. R. 24t;7/d. 683; Com. Dig. Action, N. 
 
 176; 7 Co. 2 b; 3 Lev. 141; Bao. Ab. Actions, 3, 11. In debt qui tarn for usury, tlie venae 
 
 Local and Transitory, A; 2 East, 498, 499. should be laid where the interest was taken, 
 
 (s) 1 Taunt. 379; 11 East, 226; 2 East, although the contract was made in another 
 
 497; 5 Taunt. 789. county, 8 B. & C. 700; 5 D. & R. 616, S. C. 
 
 it) 1 Taunt. 379. (o) 1 Saund. 347, n. 1. 
 
 («) 4 T. R. 503; 1 Stra. 646; Cowp. 180; (6) Tidd, 5th edit. 1122; Vin. Ab. Trial, H. 
 
 6 East, 598,599. a, 2, pi. 17; Hob. 196. As to venue in an 
 
 (a;) Co. Lit. 125 b, 126 a, n. 1 ; 1 Wils. action on a recognizance taken before a oom- 
 
 298; Tidd. '9th edit. 606. missioner at Durham, see 2 Moore, 66. 
 
 (3/) 6 Taunt. 29. (c) 5 East, 461. 
 
 (z) 2 Taunt. 252, (which overrules 2 (d) 5 East, 462, n. b; Tidd, 9th edit. 1122. 
 
 (1) Sumner v. Finegau, 15 Mass. 284; Livingston d. Jefferson, l^Brock. 203; Roach v. Dai4- 
 ron, 2 Humph. 425; Graves v. M'Keon, 2 Denio, 639. By statute'in Virginia, trespass quare 
 clausumf regit, is a transitory action. Livingston v. Jefferson, 1 Brock. 203. The right of 
 property in chattels, that has become such by severance from the freehold, cannot be tried in a 
 transitory action. Powell d. Smith, 2 Watts, 127; Brown v. Caldwell, 10 Serg. & R. 114; 
 Baker v. Howell, 6 Serg. & R. 476. 
 
 (2) See Sumner v. Finegan, 15 Mass. 284; Livingston v. Jefferson, 1 Brock. 203. In X<ewis 
 V. Martin, 1 Day, 263, it was held that an action of account, for the rents and profits of land, 
 might be brought in a different county from that in which the lands lie. 
 
 (8) Vide Bogart v. Hildreth, 1 Gaines, 2; Marshall v. Hosmer, 3 Mass. 23. 
 
 (4) Robison v. Mead, 7 Ma«8. 353; Williams v. Welch, 5 Wend. 290. Although brought for 
 a cause of action for which trespass de bonis asporlatis would lie, ib. Atkinson v. Holoomb, 4 
 Cowen, 45, 6. In Pennsylvania, replevin is a transitory actidn, Powell v. Smith, 2 Watt, 127. 
 
 (5) Aec, Barnes v, Kenypn, 2 Johns. Gas. 381; Smith v. Clark, 1 Pike, 63. An action on a 
 foreign judgn^ent, when the plaintiff is not an inhabitant of the state, may be brought in any 
 county. Mitchell i». Osgood, 4 Qreenl. 124. 
 
 (6) Debt on bail bond is transitory, though the action must in general be brought in the sani^ 
 
 court as the original suit. Post, vol. 2, 446, note. , 
 
 (7) Aco. M'Gill V. Perrigo, 9 Jphns. 259. 
 
 Vol. I. • 38 
 
269 OP THE DECLARATION, 
 
 TV. ITS to reside in that county (e). Debt for arrears of a rent charge against 
 g^*'^' ''.■ the pernor of the profits not being the original grantor, is local, the de- 
 Vaiue. ^ fendant being chargeable in respect to his possession, and not on the con- 
 tract (/). And it has been decided that an action for breach of a custom 
 or by-law of a town is local, but that debt on a charter is not (g-). 
 When the In all actions for injuries ex delicto to the person or to jwensowa^ property, 
 transitory. *^^ venue is in general transitory, and may be laid in any county, though 
 committed out of the jurisdiction of our Courts (A) or of the king's domin- 
 ions (i) (1). Thus, actions for assaults, batteries, and false imprison- 
 ment (A) ; and for words and libels (Z) ; even for setting up a defamatory 
 mark on the plaintiff's house, denoting that it was a house of ill-fame, be- 
 ing a personal injury to the plaintiff's character, and not considered as an 
 injury to the building (m) ; and for taking away or injuring personal pro- 
 perty (w) ; and for escapes (2) and false returns (o) ; and upon bail-bonds 
 [ "270] (p) ; are transitory (3). In general, *also actions founded upon contracts 
 are transitory, though made and even stipulated to be performed out of the 
 kingdom, for debilum et contractus sunt nullius loci (g). Thus, account ; 
 assumpsit ; and covenant between the original parties to the deed, and their 
 executors ; and debt, even for use and occupation (r) (4) ; and detinue ; 
 are in general transitory (s). Formerly also the necessity that in a bailar 
 ble action by original in the King's Bench, the venue must not vary from 
 the original writ, must have been kept in view if), though that was alter- 
 ed by Reg. Gen. Bil. T. 2. W. 4, reg. 40, and now the proeeedings by 
 original writ in personal actions has been abolished by 2 W. 4, c. 39. In 
 thosfe transitory actions also in which the Court would change the venue 
 on the defendant's application, and where the plaintiff might wish to 
 
 (e) Tidd, 9th edit. 1122. Tin. Ab. Trial, H. a, 2, pi. 12; 1 T. K. 479. 
 (/) Hob. 37; Vin. Ab. Trial, H. a, 2 pl.l6. (o) 1 Wils. 836; Salk. 670; 1 East, 114. 
 
 (g) 2 Bla. Rep. 168. (p) Fort. 366; Stra. 727; Ld. Raym. 1455. 
 
 (ft) Cowp. 161 ; Com. Dig. Action, N. 12. See 1 Saund. 74, n. h, 5th edit. 
 \i) Id.; 2 Bla. Eep.1058; sedquiere, Cowp. (?) Com. Dig. Action, N. 12; 1 Saund. 74. 
 
 176. 241 b; Cowp. 180; 1 Stra. 612; Ld. Raym^ 
 
 (k) Cowp. 161; Co. Lit. 282. 1352. 
 (0 1 T. R. 571. (r) 5 Taunt. 25. 
 
 (wi) 11 East, 226; 2Campb. 8, 8. C. (s) Gilb. C. P. 84; 1 Saund, 74, n. 2. 
 
 (n) Com. Dig. Action, N. 12; Salk. 670., (0 .Ante, 244. 
 
 (1) Aoo. Glen w. Hodges, 9 Johns. 67. Actions for assault and battery are transitory. Watts 
 V. Thomas, 2 Bibb, 468; Redgrave v. Jones, 1 Har. & M'Hen. 195; Smith v. Bull, 17 Wendell, 
 323. So an action will lie here, for a trespass committed on board of a foreign vessel, on the 
 high seas, where both parties are foreigners; but- it rests on the sound discretion of the court to 
 exercise jurisdiction or not, according to the circumstances of the case: and where an action 
 was brought for an assault and battery committed on board of a British vessel, on the high seas, 
 by a seaman against the master, both parties being British subjects, and intending to return to 
 their own country at the completion of the voyage, the court refused to take cognizance of the 
 cause, but left the injured party to seek redress in the courts of his own country. Gardner d, 
 Thomas, 14 Johns. 134. But where a foreign seaman is legally discharged from the vessel in 
 this country, theaction may be maintained. Johnson v. Dalton, 1 Cow. 543. In Ohio, all per- 
 sonal notions are transitory, and may be brought in any county in which process can be served 
 on the defendant. Genin u. Grier, 10 Ohio, 209, An action against a town to recover damages 
 caused by defects in a highway is transitory and may be brought in any county. Titus v. 
 Frankfort, 8 Shepley, 89; Hunt v. Pownall, 9 Vermont, 411. 
 
 (2) Tide Bogert i> Hildreth, 1 Caines, 1, '3, 4. 
 
 (8) So case against a sheriff, for refusing to assign a bail bond, is transitory. Prosecutions, 
 ■under the bastardy acts are transitory. Dennett v. Kneeland, 6 Greenl. 460; Commonwealth v. 
 Cole, 5 Mass. 519. 
 
 (4) Corporation of New York v. Dawson, 2 Johns. Cas. 825- Low v. Hallett, 2 Caines, 
 874; Eglerv. Marsden, 6Taunt. 25; King v. Fraeer, 6 East, 86g, 858; Beti\rood v. Cheesema^ 
 a Serg, & Bawle, 600, 
 
ITS PABTS AND PARTICULAR RECjtJISITES. 270 
 
 bring it back again to the county where it was first laid, upon the usual ivv m 
 undertaking to give material evidence in that county, it was necessary to ^^*^' ** 
 lay the venue in the first instance in that county in which such material ^S^' ^® 
 evidence could be given (m). 
 
 In an action upon a lease for non-payment of rent, or other breach of Tl^e f«°"8 
 covenant, when the action is founded on the privit?/ of contract, it is trans- on^*^"* 
 itorj/, and the venue may be laid in any county ; but when the action is °" ** 
 founded on the privity of estate it is local, and the venue must be laid in 
 the county where the estate lies (m) (1). These points may be consider- 
 ed as they arise ; Isl. Between the original parties to the lease ; 2dly. In 
 the case of an alienation of the estate of the lessor ; and Sdly.. Where 
 the estate of the lessee has been assigned. 
 
 1st. In an action of debt or covenant by the lessor, or his executor or 
 administrator, against the lessee, or by the lessee against the lessor, the ac- 
 tion being founded on the mere pHvity of contract, is transitory, and 
 though the land lie abroad, the action may be brought in England (x) (2) ; 
 and debt for use and occupation in the detinet only, by the lessor against 
 the executor of the lessee, is transitory (j^) ; but if the action against the 
 executor be in the debt and detinet, he being charged as assignee, the ve^ 
 nue is local (sr). An action of assumpsit against a party who succeeds an 
 original tenant and impliedly engages to observe the original terms of ten- 
 ancy is transitory and not local (a). 
 
 2dly. An action of covenant by the assignee of the reversion against [ *271 J 
 the lessee, or by the lessee against the assignee of the reversion, upon an 
 express covenant contained in the lease, and running with the estate in 
 the land, is transitory by the operation of 32 Hen. 8, c. 34 (6) (3) ; 
 which transfers the privity of contract with respect to such covenants, tO; 
 and against the assignee of the lessor, in the same plight as the lessor 
 had them against the lessee, or the lessee against the lessor (c). But in 
 debt by the assignee (<?), or devisee (e), of the lessor against the lessee 
 which is sustainable at common law, and is founded on the privity of e&r 
 tate, the action is local (4) 
 
 3dly. If an action of debt or covenant be brought by the lessor (/) ; 
 or his personal representative (§•) ; or by the grantee of the rever^ 
 
 («) 6 East, 433, 434; 1 Chit. E. 691 a. Crom. M. & Ros.834. 
 
 377; 2 B. & A. 61'8. (6) 1 Saund. 237, 241 b, n. 6; Garth. 133s 
 
 (0) As to the four different descriptions of 1 Wils. 165; 8 T. R. 394. Privies in blood, 
 privities, and in general how far they affect the as the heir of lessor, might sue in covenant at 
 venue, see the argument in 3 T. R. 394; common law, 3 T. R, 395. 
 
 Walker's Case, 3 Co. 23; and 1 Saund. 237 to (c) Id. ibid.; 1 Saund. 237, 241 b, n. 6;; 8 
 
 242, and the notes 6 & 6; and see Tidd, 9th T. R. 401, 402. 
 
 «dit. 429; 8 Bing. 460. (d) 1 Saund. 238, 241 c, n.6; Cro. Car. 183; 
 
 (s) 1 Saund. 241 b. n. 6; Stra. 776; 2 East, 1 Wils. 165. 
 
 679. (e) Sir W. Jones, 53; Vin. Ab. Trial, H. »> 
 
 (y) Glib. Debt, 403 ; Gilb. C. P. 91. 2; Latch. 271; Xidd, 9th edit. 429. 
 
 (2) Id.; 2 Lev. 80; Vin. Ab. Trial, H. a 2, (/) 2 East, 579, 580; 6 Mod. 194-; 7 T. Ri 
 
 pi. 22. 683. 
 
 (a) Buckworth v. Simpson and others, 1 (°r) Latch. 197. 
 
 (1) Lienow v. Ellis, 6 Mass. 831; Birney v. Haine, 2 Litt. 863; White v. Sanborn, 6 N. Hampi 
 220. 
 
 (2) See Henwood v. Cheeseman, 3 Serg. & RawIe, 500. 
 
 (3) The English Statute is in force in Pennsylvania, except such parts as relate to the king of 
 England and his grantees. Roberts' Dig. 227. 2 Binn. 620. See Henwood v. Cheeseman, 8 
 Serg. & Bawle, 502. Vide the corresponding statutes, sess. 36, c. 31, s. 12, Laws N. Y. 1 R. L. 
 368, and by a. 8. the provisions of the act are extended to grants in fee, reserving rent. 
 
 (4) Vide Corporation of New Tork v. Dawwn, 2 Johns. Cas. 836. 
 
[•272] 
 
 271 DP THE DECLARATION^ 
 
 IV. ITS gion (/i)(l) ; against the assignee of the lessee (2) ; or in an action of 
 PAEB, &o. j[g|j^ against the executor of the lessee in the debet and delinet (») ; the 
 Mly. The venue is local, and must be laid in the county where the land lies (A), 
 And in a recent case in covenant against the assignee of the lessee of 
 premises, described in the declaration as situate within the liberties of 
 Berwick-upon-Tweed, it was held that the venue could not be laid in 
 Northumberland (J). If the land be out of England, no action on the 
 privity of estate can in general be supported in this country (m). The 
 action at the suit of the lessor against the assignee of the lessee, was giv- 
 en by the common law, and was local in respect of the privity of estate, 
 the privity of contract being destroyed by the assignment (n) ; and the 
 assignee of the reversion must also sue the assignee of the term in the 
 county where the land lies, because the statute 32 Hen. 8, transfers the 
 privity of contract to the assignee in the same manner as the lessor had 
 it (o). For the same reason, covenant by the assignee of the lessee 
 against the lessor, or the grantee of the reversion, is local ; for it lies at 
 common law only in respect of the privity of estate, in which case the 
 venue is always local (p). 
 Venue The statute 31 Eliz. c. 5, s. 2, enacts, " that in any declaration or in- 
 
 by rio/irfT^ formation, the offence against any penal statute shall not be laid to be done 
 in any other county but where the contract or other matter * alleged to be 
 the offence was in truth done (g) ; and the statute 21 Jac. 1, c. 4, s. 2, 
 enacts, " that in all informations, declarations, &c. for any offence against 
 any penal statute, whether on the behalf of the king or any other person, 
 the offence shall be laid and alleged to have been committed in the county 
 where such offence was in truth committed, and not elsewhere ; or the de- 
 fendant, upon the general issue, shall be found not guilty " (3). And ia 
 a penal action for the omission of a local duty, prescribed by a statute, 
 the venue is local (ry. Lord Holt's opinion appears to have been, that the 
 statute 21 Jac. 1, c. 4, s. 2, extended to subsequent statutes (s), but a contra- 
 ry doctrine was for some time entertained (jf). It has however been recently 
 determined, that the first-mentioned statute, 31 Eliz. c. 5, s. 2, extends as 
 well to subsequent as to prior penal statutes, and consequently in alj penal 
 actions the venue is now local (u) (4). This statute also extends to of- 
 fences of omission as weU as commission (v) ; and a penal action for non 
 
 (h) 1 Saund. 241 o. note 6; 7 T. E. 583; 2 (r) 4 East, 893. 
 
 East, 580; 1 Show. 191, (s) Lord Raym. 373. 
 
 (i) jJnte, 270, not* (d) ; 8 Keb. 375. (<) Parker's Rep. 186; Andr. 25; 2 Str. 
 
 (fc) 2 East, 580. 1081; 1 Salk. 372, 373; Com. Dig. Action, N. 
 
 (I) 3 Bing. 459. 10; Bao. Abi Action, qui tarn, C, 1 Saund, 
 
 (m) 1 Show. 190, 199; Bao. Ab. Actions 812 c, in the notes; Bui. N. P. 195; Tidd, 
 
 Local and Transitory, A. a. And see 4 T. R. 9th ed. 430. 
 
 503; ante, 267, note (m). (u) 3 M. & Sel. 429; 5 Taunt. 754; 1 
 
 (n) Sid. 339. Marsh. 320; S. C; 9 East, 296; Tidd, 9th 
 
 (o) 1 Saund. 241 c; 1 Show. 199. . edit. 430. see 3 Campb. 78. 
 
 (p) 6 Co. 17 a; 1 Saund. 241 d,note 6. (ji) 5 M. & SeL 427; 2 Chit. E«p. 420, S. 
 
 (g) As to debt for penalties against usury, C. there are several exceptions in the act, see 
 
 see ante, 269, note (z). Tidd, 9th ed. 430. 
 
 (1) White V. Sanborne, 6 N. Hamp. 220, Clarkson v. GifFord, 1 Caines, 6. 
 
 (2) Vide Corporation of New York v. Dawson, 2 Johns. Cas. 335. 
 
 (3) And the statute of the State of New York, sess. 11, c. 9, s. 2. 1 R. D. 99, is to the same 
 effect. See 2 Rev. Stat. 480, 481, et seq. 
 
 (4) The Statute of the State of New York, cited above, speaks of actions to be commenced on 
 any penal statute, made, or to be made, and consequently is prospective. 
 
ITS PARTS AND PARTICULAR REQDISITES. 272 
 
 i 
 
 residence must be brought in the county in which the living is situated (x). iv. m 
 But neither of the above statutes extends to actions brought by the party ^■^*"' *°' 
 grieved (y). Upon the common law principle, where there are two mate- ^"^'y- "^^^ 
 rial facts to constitute the offence against a penal statute, and one hap- '^'""*' 
 pened in one county, and the other in another county, it has been supposed 
 that the venue might be laid in either (sr) But where an usurious contract 
 was made in one county, and the usurious interest is taken in another, in 
 an action for the penalty, the venue must be laid in the latter county (a) 
 (1) ; and according to the terms of 21 Jac. 1, c. 4, s. 2, it seems safer to 
 lay the Venue in the county where the offence was committed or perfected. 
 Some actions against particular persons, which would otherwise be tran- 
 sitory, must, by different statutes, be laid in the county where the facts 
 were committed, or the plaintiff will be nonsuited. Such are actions upon 
 the case or trespass aga,\Qst justices of the peace, mayors, or bailiffs of cities 
 or towns corporate, headboroughs, port-reves, constables, tlthing-men, 
 church-wardens, &c. or other persons acting in their aid and assistance, or 
 . by their command (6), for any thing *done (c) in their official capacity (2); [ *273 ] 
 and actions against any person for anything done by him as an officer of 
 the Excise (d), or Customs (e), or against any other person acting in 
 his aid in execution or by reason of his office ; or for any thing done in 
 pursuance of the act for consolidating . the provisions of the acts relating 
 to the duties under the management of the commissioners for the affairs of 
 Taxes, or any act for granting duties to be assessed under the regulations 
 of the act, <fec. (/); So, the venue is local in an action against an officer 
 of the army, navy, or marines, for any thing done in the execution of or by 
 reason of his office (g-) ; or against any person for any. thing done in pur- 
 suance of the acts relative to larceny, &c. or malicious injuries to proper- 
 ty (A). And by the statute 42 Geo. 3, c. 85. s. 6, the provisions of the 
 statute 21 Jac. 1, c. 12, with regard to the venue, &c. are extended to all 
 persons in any public employment, or any office, station, or capacity, either 
 civil or military, either in or out of the kingdom ; and who, under any act 
 of parliament, &c. have, by virtue of any such employment, &c. power to 
 commit persons to safe custody ; provided always, that when any action 
 upon the case, trespass, battery, or false imprisonment, shall be brought 
 against any such person in this kingdom, for or upon any act done out of 
 the kingdom, the plaintiff may lay such act to have been done in West- 
 minster, or any county where the defendant shall reside. 
 
 (i) Id. (c) General construction of the words " for 
 
 (y) 1 Show. 354; Bui. N. P. 196; Ti(id,9th any thing done," see Tidd, 9th. edit. 29, 19; 
 
 ed. 435. 10 B. & C. 297. When it extends to assump- 
 
 (z) 2 Taunt. 252; 2 Campb. 266, S. C. 4 sit for money had and received, 4 B. & C.200. 
 
 East, 385; Tidd, 9th ed. 430; ante, 269; sed (d) 23 Geo. 3, c. 70, s. 34. 
 
 tpuere, see the words of statute 21 Jac. 1, c. 4, (e) 24 Geo. S.sess. 2,c. 47, s. 35, 39; which 
 
 ante, 269, and note (o) infra. statute is however repealed by the 6 Geo. 4, u. 
 
 (a) 3 B. & C. 700; 5 D. & E. 616, S. C. 105; and see 28 Geo: 3, c. 27, s. 23; 6 Geo. 
 
 (6) 21 Jac. 1, c. 12, s. 5. This statute is 4; c. 108, s. 97. 
 
 not in force in Maine. Campbell ». Thompson, (/) 43 Geo. 3, c. 99, s. 70. 
 
 4 Shepley, 117. Whether a person who desires (^) 6 Geo. 4, c. 108, s. 97. 
 
 a constable to act, and who assists him, is with- (A) 7 & 8 Geo. 4, c. 29, s. 75, and o. 80, s. 
 
 in this provision, see Holt, N. P. R. 478; 3 41. 
 Campb. 257; 2 Stark. R. 445. 
 
 (1) The New York Statute above referred to, expressly excepts, actions concerning usury, 
 maintenance, extortion, &c. 
 
 (2) £t vide Laws N. Y. sess. 24. c. 47. s. 1 ; 1 B. L. 155. See Rev. Stat 409, s. 8. 
 
278 
 
 Of THE DECLABATION, 
 
 It. MS 
 FAEI9, &a 
 
 8dly. The 
 Kcftue. 
 
 [ *274 ] 
 
 The tenue in an action against'a justice, constable, &c. for an act done in 
 the execution of his office, seems to be local, if the party atited under col- 
 or of his office, intending- to act in his official character, although it did 
 not strictly justify him ; for he would want no protection, if in reality he 
 acted in due course of his office (i). 
 
 So actions against persons acting under the acts relating to Highways 
 (Jc) ; or Turnpikes (I) (1) ; or the Militia (nv), and various other acts ; 
 are local by express provision. Attornies, when plaintiffs, and suing in 
 their own Court, have the privilege of laying and retaining the venue in 
 Middlesex in transitory actions, although the cause of action arose in 
 another county (n). 
 
 *The venue is thus stated in the margin of the declaration, " Middlesex' 
 to wit," or " City of Bristol and County of the same city to wit" (o). It 
 was always a doctrine, that such venue in the margin would aid but not 
 prejudice, and in civil cases, if the name of a place only, and no county, 
 or a wrong county were stated in the body of the declaration, it would 
 suffice, because the place was always construed to refer to the county in 
 the margin, (2), though another countiy also were mentioned ; and on the 
 other hand, when the proper venue was laid in the body of the declara^ 
 tion, the county in the margin would not vitiate and might be rejected as 
 surplusage (;?). But in criminal cases the rule was more strict, and though 
 the county in the margin, when expressly referred to, was sufficient, yet it 
 must then either be named in the body or be so expressly referred to in 
 all cases (^q). 
 
 Before the Pleading Reg. Gen. Hil. T. 4. W. reg. 8, it was necessary, 
 as well in criminal as in civil cases, to state and repeat the venue in the 
 body of the declaration or indictment, and it was usual to name a parish, 
 town, or hamlet, or other known place, (not being a hundred), as well as 
 the county (r). In London, it was formerly considered necessary to state 
 some parish and ward, though in other places a city or town, without 
 naming any particular parish, was always holden sufficient (s). In m»t- 
 
 (i) 2 stark. Rep. 146, 448; 10 Moore, 68, 
 876; 4 T. R. 565; 5 Id, 1, 2; see Tidd, 9th ed. 
 19, 29, 31. But a constable has no protection 
 in this respect, if he commit an assault, &c. al- 
 together, and clearly not warranted by his of- 
 fice, Stra. 446. 
 
 (fr) 23 Geo. 3, c. 78, s. 81. 
 
 (2) 3 Geo. 4, o. 126, s. 147. Assumpsit 
 against a toll collector for toll improperly ta- 
 ken is local, 4 B. & C. 200. That was a de- 
 cision on a local act, but the clause on which 
 the decision turned contained words similar to 
 those used in the 147th section of the 3 Geo. 4. 
 
 (to) 42 Geo. 3, c. 90, s. 178. 
 
 (n) 2 Salk. 668; 4 Burr. 2027; 2 Bla. Rep. 
 1065; 3 T. K, 573; Partington?). Woodcock, 2 
 Dowl. 650; bat then it must appear from the 
 declaration or proceedings that the plaintiff sues 
 as an attorney or in person and not by anoth- 
 er attorney, Lowless V. Tims, 3 Dowl. 707; 3 
 
 Chitty Gen. Prac. 647. 
 
 (o) Lord Hardwioke was of opinio* that the 
 "ss" in the margin of the declaration, was not 
 originally meant to signify the county, but was 
 only a detonation of each section or paragraph 
 in the record, Cas. Temp. Hardw. 344. In in- 
 dictments the words " to wit," are generally 
 oqiitted after the venue in the margin or be- 
 ginning of the indictment. 
 
 (p) 1 Saund. 308, n. I; 3 Wils. 839; 3 T. 
 R. 387; 1 Taunt. 379; Com. Dig. Pleader, C. 
 20; and see 2 East, 497; 2 Taunt. 789; 1 
 Marsh. 363, S. C; 2 Moore, 67; and see to 
 this effect. Doe v. Roe, 3 Dowl. 828; and see & 
 Bing. 866. 
 
 (g) 1 Saund. 301, n. 1; 1 Chit. Crim.Law, 
 194. 
 
 (r) Co. Lit. 125 a, n. 2. 
 
 (s) Cro. Jao. 307; Leach, Cro. Law. 930; 
 4 Hawk. P. C. 86, 8. 88. 
 
 (1) The venue should be laid in the county where toll is improperly collected, in an action 
 under a turnpike act, "providing that every such action, for any thing done in pursuance of 
 that act, should be brought where the matter should arise." Waterhouse v. Keen, 6 Dowl. & 
 Eyl. 257. 
 
 (2) Vide Slate v. Post, 9 JohnR. 81 ; Tuberville v. Long, 8 Hen. & Mun, 812; Sharp v. Sharp, 
 8 Wend. 280. 
 
ITS PARTS AND PARTICULAR REQUISITES. 274 
 
 V 
 
 inal cases it is still necessary to name some parish or town as well as the iv. its 
 county, and the statement in an indictment that a party committed per- ^^^'^' *°- 
 jury at Guilderhall in London was insufficieat {f); and though the 7 Gr. ^^'y- The 
 4, c. 64, s. 20, aids the want of a proper venue, yet the total omission of *""°' 
 the county in the body of the indictment will be a fatal defect (m). But 
 in civil actions in the superior Courts as the jury is no longer de vicineto, 
 the statement of a county alone, or that the contract was made in London, 
 without laying a parish or ward, has long sufficed (x), unless where a 
 local description .is necessary, as in replevin, &c. (j/). The same rule 
 applied *even in actions on penal statutes {z), unless part of the penalty [ *275 ] 
 be given to the poor of the parish in which the offence was committed, 
 ' when the name of the parish is material (a). Where a parish is named, 
 so much strictness does not prevail as formerly ; thus in trespass quare 
 claiisum fregit, where the locus in quo is stated to be in the parish of A., 
 it is sufficient to prove it to be a reputed parish, though strictly it be only 
 a hamlet (i). ^/ 
 
 In Inferior Courts it continues necessary, in additiofi^o the statement 
 of the county as a venue, to aver that every material fact took place 
 " within the jurisdiction of the Court," as in assumpsit, as well that the 
 promise or contract was made, as that the goods were sold, or the money 
 had and received, &c. within the jurisdiction of the Court (1) ; and if the 
 allegation be omitted, the declaration will be insufficient, even after ver- 
 dict (c). But as to such matters as are stated only in aggravation of 
 damages, and might be omitted, it is not necessary to allege that the same 
 arose within the jurisdiction (ci), and it suffice to allege that an account 
 was stated within the jurisdiction, without averring that the items of the 
 account accrued there (e). It has been recently decided that even in a 
 declaration in debt on the judgment of the inferior Court, it is necessary 
 to show that the original cause of action accrued within its jurisdiction (/). . 
 When a transitory matter has occurred abroad, it may in general be 
 stated to have taken place in any English county, without noticing the 
 place where it really happened ; but if the real place abroad be stated, it 
 should be shown under a scilicet, that it happened in an English county, 
 as for instance, " in Minorca, to wit, at Westminster, in the county of 
 Middlesex" (§•). 
 
 (f) See the authorities collected in 1 Chit, to variance. 
 
 Crim. Law, 196, 197; Leach. Cro. Law, 928; (c) 1 Saund. 74 a, n. 1; 1 T. E. 151 ; 8 Id. 
 
 Co. Lit. 125 b, n. 2. But it is not in gen*al 127; Cro. Jac. 502; 6 T. R. 764; Read v. 
 
 necessary to prove in evidence that there is Pope, 1 Crom. M. & Ros, 302; 4 Tyr. 403, S. 
 
 such a parish as that named in the indict- C. ; Salter v, Slade, 1 Add. & £11. 608. 
 
 ment, 1 R. & M. 433, And it seems that the (d) 1 Saund. 74, n. 1 ; Bac. Ab. Pleas, E. 1. 
 
 indictment would be good even if it were (e) 2 St. a. 827. In assumpsit for work 
 
 proved negatively that there waa no such par- and labor in healing horses within the jnrisdic- 
 
 ish, see id. Hon of a County Court, and for potions, &c, 
 
 (u) Rex V. Hart, 6 Car. & P. 123. administered on those occasions, it was held 
 
 (x) 3 M. & Sel. 148; Co. Lit. 125 b. n. 2; ihatthis amounted to a sufficient allegation 
 
 Yin. Ab. Trial, H. a, 6; 4 Saund. 8 a; Lutw. that the potions were administered within ,. 
 
 337. the jurisdiction of the Court, 3 B. & B. 309; 7 
 
 (y) 1 SauntJ. 347, n. 1. Moore, 137, S. C. 
 
 (a) Co. Lit. 125 b; 24 Geo. 2,c. 18; 3Esp. (f) Read v. Pope, 1 Cr. M. & R. 302; 4 
 
 Rep. 219; 2 Saund. 376, n. 9; Willes. 99, n. a. Tyr. 403^ 
 
 {a) 3Esp. Rep, 219. [g) Cowp. 177, 178; 10 Mod. 255; ante, 
 
 (4) 2 Camp. 6, note, and see poH, 276, as 267, 268; 7 T. K. 243; Bayley on Bills, 5th 
 
 (1) Thornton t». Smith, 1 Wash. 81, and the cases there cited. Vide Murray i). Fitzpatrick, 
 8 Caines, 41. Wetmore v. Baker, 9 Johns. 307. Evans v. Mankley, 4 Taunt. 47, Shepard v, 
 Boyce, 2 Johns. 447. Briggs v, Nantucket Bank, 6 Mass. 95. Turberville v. Long, 3 Betx. Si 
 
275 OP THE DECLAEATION, * 
 
 IV. ITS la Mostyn v. Fabrigas (A), Lord Mansfield observed, that although 
 PARTS, 0. actions of a transitory nature that arise abroad may be laid as happening 
 ^Ve T^^ ^" ^^ English county, yet in the case of a deed made abroad, it should be 
 averred that it was made in the foreign country, laying the venue under a 
 videlicet. But unless a deed, bond, or bill of exchange made abroad, de- 
 rive from that circumstance any peculiar character unknown to the Eng- 
 [ *276 ] lish law, or be for the payment of foreign *money (J) ; so that the state- 
 ment that it was a foreign instrument is substantially important, there 
 seems to be no occasion to state that, it was made abroad (A)." In stating 
 a matter or record, no venue seems necessary, as the record must be pre- 
 sumed to be where the Court is (/) ; but in pleading an Irish judgment it 
 may be otherwise (m) . 
 ftltement Before the general pleading rule, Hil. Term, 4 W. 4, reg. 8, prohibit- 
 and rcpe«. ing the repetition of venue or place in the body of a declaration, it was 
 Hon of considered that the venue should he laid and repeated throughout every 
 Voiy^oi P^^* of the declaration distinctly to every material traversable fact («) ; and 
 declara- formerly the omission was considered fatal on trial, though issue were 
 tion. taken upon another point (o). But even in a local action, as in case for an 
 injury to a water-course, no precise local description of the nuisance com- 
 plained of was necessary, and provided the county were properly stated, 
 it was sufficient, except in replevin (jo). And where there were several 
 facts, yet if the sentences in which they were stated were coupled with 
 the conjunction " awe/," the venue laid in the first allegation would apply 
 to all the facts (q). So the performance of a contract would be inferred 
 to have been at that place where it was entered into (r) ; though it was 
 usual to repeat the venue to each averment (s). No venue, however, need 
 have been laid to matter of inducement when not traversable, and which 
 consequently could not be tried {t) ; nor was a venue necessary in general 
 to a negative allegation (m). 
 
 Where a parish was stated merely as a venue, it was not necessary for 
 the plaintiff to prove that there was such a parish in the county (rs) ; nor 
 was it of any consequence that the cause of action should appear to have 
 arisen in a difi'erent parish {y). That rule applied to penal actions, as in 
 debt on the game laws (s) ; but when part of the penalty sought lo be re- 
 covered was given to the poor of the parish, the name of the parish was 
 
 I 
 
 edit. 172; Co. Lit. 261b. See observations, East, 291 , 303 ; 8 M. & Sel. 149; Com. Dig. 
 
 1 Stark. Crim. Law, 23, note (A); 1 CUtty Pleader, C. 20; 5 T. R. 620; 2 Hal. P. C. 179; 
 
 Crim. Law, 178, 180. As to the indictments, itl East, 364 to 366; 13 M. 142 ; see, how- 
 
 7 Geo. 4, 0. 14. s. 12, 18; 9 Geo. 4,o. 31. over, 11 Price, 400; see the observations of 
 
 (A) Cowp. 177, 178; ante, 266, 267; 2 Ld. Mr. Justice Le Blanc, 10 East, 365, 366; and 
 
 fiaym. 1043, S. C. in Salk. 622, and 6 Mod. of Lord EUenborough, 14 East, 800, as to the 
 
 228. words "<Aen and Merc." 
 
 (0 2 B. & Aid. 308; 2 B. & C. 16; 2 D. & (o) 2 Leon. 22. 
 E. 15, S. C. The question of stamps might (p) 2 East, 503; 1 Taunt. 880. Sedquare, 
 
 perhaps also be material, if the instrument see Co. Lit. 125 b. 
 
 be not shown on the face of the declaration to (9) 1 Saund. 229, and note 2; Com. Dig. 
 
 have been made abroad. In general a con- Pleader, C. 20 ; Hardr. 61; ante, 258; 2 Hal. 
 
 tract is to be construed according to the laws P. C. 179. 
 
 of the country where it was made, &c. 7 T. (r) Cro. Eliz. 880; Com. Dig. Pleader, C. 
 
 E. 241 ; 3 Campb. 166 ; 3 Taunt. 82. 20. 
 
 (/c) See 3 Campb. 305; seeBayley onBills; (s) Com. Dig. Pleader, C. 20. 
 Steph. 2d edit. 365; 1 Saund. 74, note (ft). (0 Plowd. 191; Com. Dig. Pleader, C. 20j 
 
 6th edit. 2 Stra. 817; Steph. 2d edit. 880. 
 
 (Z) 1 Vent. 264. (u) AnU, 259; 5 T. E. 615; 1 Taunt. 879. 
 
 (m) See 5 East, 473; 4 B. & C. 411. (i) 1 E. & M. 488; see 8 M. & Sel. 148. 
 
 (n) Bing v. Eoxborough, 2 Cromp. & Jerv. (j) 2 East, 497. 
 
 418; 2 Tyr. 468, 8. C. ; E. T. Hardff. 288; 14 (2)8 Esp. Rep. 218; 2 Saund. 876, n. 9. 
 
ITS PARTS AND GENERAL REQUISITES. ' '277 
 
 matter of substance, and the offence must necessarily be laid and proved rv. im 
 to have taken place therein (a). So, in an *action, though not local, if •^™' "• 
 the situation of land or other real property be described, though unnecesr ^^y- '^^^ 
 sarily, in a material averment, to be situate in a particular parish or place, 
 the plaintiff would fail on the trial if there were a substantial mistake (6). 
 Where in debt qui tam the plaintiff sued as well for the poor of the " par^- 
 ish of St. James, in the county of Middlesex," as for himself, tlie descrip- 
 tion of the parish was held sufi&cient, although there were in the county 
 the parishes of " St. James, Clerkeuwell," and of " St. James, in the lib- 
 erty of Westminster ;" for the latter parish is sometimes called by the 
 latter names, and sometimes St. James (c). So where, in ejectment, 
 premises were stated to be in the " parish of St. Luke," in Middlesex, the 
 Court held there was no variance, although there is the parish of " St. 
 Luke, Chelsea," in Middlesex, and there is also the pai'ish of " St. Luke, 
 Old Street," in that county ; for the latter parish, in which the premises 
 were, is also commonly called " St. Luke, Middlesex ;" and the court rec- 
 ognized the principle, that it suffices to describe the parish by the name by 
 which it is commonly known (<^). It has, however, been held to be a fa- 
 tal variance to describe land situate in the parish of A. as situate "in the 
 united parishes of A. & B.:" the parishes being united by statute merely 
 for the support of the poor (e). But if a fact be stated to have occurred 
 " at or near" a particular place, the mistake may not be so material (/) 
 (1). And when it is doubtful whether the place where a navigation is 
 alleged to lie, is stated in the declaration as a venue, or as a local descrip- 
 tion, it will be referred merely to the venue, and need not be proved to 
 be at such place (§■). The mode of describing the place or venue in tres- 
 pass and replevin (A), and other particular aotioas, is stated in the notes 
 to the several precedents in such actions. 
 
 At common law, if it appeared upon the record, that the contract or cause Conse- 
 of action arose in a county different from that in which the venue was ^"^^te la 
 laid, it was error (i). But by 16 & 17 Car. 2, c. 8 (2), " after verdict, venue and 
 judgment shall not be stayed or reversed, for that there is no right venue, ^hen aid- 
 so as the cause were tried by a jury of the proper county or place where " 
 the action is laid (3);" and this statute extends not only to those cases 
 where there is a wrong venue in the proper county, but also to those where 
 the cause has been improperly tried in a wrong county, and whether the 
 objection appears on the record or not (k). And the 4 & 5 Anne (J) (4) 
 extends this provision to a judgnjent by confession, nil dicet or non sum 
 
 (a.) 3 Esp. Bep. 219: 2 Saund. 376, n. 9; 561; 1 B. & P. 225; 5 Taunt. 789. 
 
 Peake, Evid. 199. (g-) 2 East, 797; 11 Id. 226, 229; 2 Camp, 
 
 (6) 1 Esp. Rep. 963; 2 B. & P. 281 ; 2 Lev. 3, 5; 5 Taunt. 789. 
 
 834; Salk,452; Bae. Ab. Trespass, K. , 6 East, (A) See 1 Saund, 347, n, 1. 
 
 352; 11 Id. 226; Stra,595. (i) Com, Dig Action, N, 6; 1 Saund. 74, n, 
 
 (c) 3 Bing. 449. 2. 
 
 id) 1 T. & J. 492; seealso 13 East, 9, (fc) 1 Saund. 248, note 3; 7 T. R, 583; 2 
 
 (e) 2 Campb. 274, East, 580; 2 Saund, 5 d, in notes, 
 
 (/ ) Peake, Evid. 4th edit, 220; 4T, K. 558, {I) C, 16, s, 2, 
 
 (1) Ace, Guest B, Caumont, 3 Campb, 235, And see further upon this subject, Phillipp's Ey 
 165, 166; Vowels v. Miller, 3 Taunt, 140; Williams v. Burgess, 3 Taunt. 127, 
 
 (2) In force in Pennsylvania, Roberts' Dig, 39; 3 Binn. 624, 
 
 (3) Vide Laws N, T,3ess, 11,0, 32, s, 6, p, 120, s, 8, p, 121, s. 11, p, 122, 
 
 (4) The first 13 sections, and the 20th and 27th sections of this statute, are in force in Penn- 
 sylvania. Roberts' Dig, 43; 8 Bian, 625. • 
 
 YoL. J. 39 
 
*278 OF THE DECLARATION. 
 
 IV. ITS mformaius (m) (1). And the same provision appears *to have been ex- 
 adf^Th ^'^'^^^^ *'° P^"*^^ actions by the 4 Geo. 2, c. 26, s. 4, (w). Bnt as inferior 
 Vetiue. * Courts, not of record, are not included in these acts, a declaration in the 
 County Court, omitting the necessary allegation as to the subject-matter of 
 the action having arisen within the jurisdiction, will still be insufficient, 
 even after verdict (o). Hence it follows, that even in local and penal ac- 
 tions in the superior Courts, the only modes of objecting to the venue are 
 by demurrer (p), or at the trial as a ground of nonsuit (q). In the action 
 of ejectment the objection could not be taken by a demurrer, but would 
 be available on the trial ; and at all events there could be no execution be- 
 cause the sheriff of one county cannot deliver the possession of land in 
 another (r). In a recent case it' was considered that the total omission of 
 local description in the body of a declaration in ejectment was error, al- 
 though the proper county was stated in the margin, but the Court gave 
 leave to amend, pending a writ of error (s). In other loqal actions, if the 
 venue be laid in the wrong county, and the objection appear upon the 
 record, it is clear that the defendant may demur (<) ; and if it do not ap- 
 pear on record, may, sometimes, if the declaration be upon a specialty re- 
 lating to the premises, avail himself of the objection at the trial as aground 
 of nonsuit (u) ; or in trespass or ejectment, on the plea of not guilty (x); or 
 in replevin, on the plea of non cepit (jy') ; or may plead the matter in abate- 
 ment {z). And even in transitory actions an unnecessary precise description 
 of local situation may, if erroneous, be fatal on the trial (a) ; though 
 where the description is rather by way of venue it will be otherwise (6). 
 If a local description or venue, when necessary, be omitted, it is not mat- 
 ter of nonsuit (c), but now only a ground of special demurrer (dy (2) ; and 
 by pleading over to the merits any formal defect in the venue is aided (e). 
 In transitory actions, the omission of the venue is aided at common law 
 by a judgment by default, because the defendant thereby admits that there 
 [ '279 ] is nothing to try (/) ; and an objection merely to *the mode in which 
 the venue is stated can be taken only by special demurrer (g-) (3). 
 
 (m) Id,; 2 Com. Hep. 555. tion merely of a parish is rarely any precise 
 
 In) Willes, 599, 601 ; see Tidd. 8th edit. 928. guide. 
 But see 4 East, 387,388, -where the iicrdid was (i) 1 Saund. 141 d. note; 3 Bingh. 469; 
 
 set aside, though no objeetion with regard to Carth. 182; 7 T. K. 688; 2 Bla. Rep. 1070; 3 
 
 the venue appears to have been taken at Nisi T, R. 387; 1 Wils. 166; and see 10 East, 369. 
 Prjus. J?i(«, 259. (m) Supra, note (g) ; 1 Sid. 287. 
 
 (0) ^nic, 275; whenornotamendable,Salt- (x) Id.; Stra. 695. 
 
 er V. Slade, 1 Adol. & Ell. 608. (j/) 1 Saund. 347, note 1 cites Stra. 507; 2 
 
 (p) 1 Wils. 165. Mod. 199; ace. 2 Gilb. Rep. 166; 2 Wils. 365, 
 
 (}) 7 T. R. 588; 2 East, 580; Cowp. 410; 2 semb. contra. 
 
 Bla. Rep. 1033; Tidd, 9th edit. 427. (z) Com. Dig. Abatement, H. 17, 
 
 (r) 7 T. R. 587, 688; Cowp. 170; see ante, (a) AnU, 277, n. (4).' 
 
 267. (6) Ante, 277, n. (g). 
 
 (s) Doe V. Bath, 2 Nev. & Man. 440; but (c) 2 East, 499; 2 Wils. 354. 
 
 see 8 Bing. 3-55; and quare, whether after (rf) Reg. Gen. Hil. T. 4, W. 4, reg. V. 
 
 verdict it is error, for the lessor of the plaintiff (c) 2 Ld. Raym. 1039; Dyer, 15 a; Com. 
 
 must always at his peril point out the premises Dig. Pleader, 85 ; 3 T. R. 387. 
 
 to the sheriff, of which he is to deliver posses- (/•) Lutw_ 237 ; Cro. Eliz. 880. 
 
 sion, and the local description in the deolara- (gj 3 T. R. 387. 
 
 (1) Vide Bowdell v. Parsons, 10 East, 359. 
 
 (2) Vide Briggs v. Nantucket Bank, 5 Mass. 94. 
 
 (3) Vide Briggs v, Nantucket Bank, 5 Mass. 94 ; Gilbert v. Nantucket Bank, Id. 97. Where 
 in a declaration on an instrument in writing, no venue is stated in the body of the declaration, 
 but only in the margin, and no place is alleged at which the instrument was executed, is no, 
 variance if the instrument produced in evidence bear date at a different place from that in whiol\ 
 the venue is laid, .\lder v. Griner, 13 Johns. 449. 
 
Its PAB'fS AND f ABTICULAB REQUISITES. 279 
 
 tf no venue be laid in the margin the defendant may demur (A) ; or, it it. its 
 seems, ihay plead that matter in abatement (i). Bat before the Reg. Gen. ^*"™' ^''• 
 Hil. T. 4 W. 4j reg. 8, if a count;^ be named in the margin it sufficed even ^'y- ^^* 
 on special demurrer (^ ). Venue. 
 
 The Reg. Gen. Hil. T. 4 W. 4, reg. 8, orders that " The name of a 
 county shall in all cases be stated in the margin of a declaration, and shall 
 bfe taken to be the venue intended by the plaintiff, and no venue shall be 
 stated in the body of the declaration or in any subsequent pleading. Pro- 
 vided that in cases where local description is now required such local de- 
 scriptions shall be given "f (1). 
 
 The same Reg, (V. In trespass,) orders that " In actions of trespass "^^^ '^^.<=«°' 
 guare clausum fregit, the close or place in which, &c. must be designated as'toven^e 
 in the declaration by name or abuttals or other description, in failure and de- 
 whereof the defendant may demut specially." soription 
 
 The first of these rules has put an end to the useless statement and in- declara" 
 cessant repetition of venue in all ;>ej-so«aZ actions, where it is in law quite tion.jSrM 
 immaterial in what place or what part of a county the fact or facts oc- ^ ^8;. 
 curred and has thus even rendered more concise the form of declarations 4 ^_" 4 ' ' 
 on bills of exchange, promissory notes, and common debts recoverable in reg. S.'no 
 assumpsit or debt under the common indebitatus counts (le). If venue or j'™"^ *° 
 place be unnecessarily stated, a judge on summons may Order the allega- i^iodyot 
 tion to be struck out (I), but it is not a ground even of special demurrer declaration 
 (m), and if inadvertently place be incorrectly repeated only once or so, <«'*'«*'«- 
 it would be more liberal practice to apply to tiie plaintiff 's attorney to ^'leading, 
 erase the useless words, instead of vexatiously putting him to trouble, loss Reg. Gen. 
 of time, and expense of a summons or motion, which proceeding, as ob- Sj'",-*-" ^ 
 served by the Court, may be even more vexatious than the useless words y. 'intr^S^ 
 objected to (n). As to the extent of the application /jf the rule it would jsasj. 
 seem from its terms to apply to every declaration and pleading in which 
 local description is not clearly required ; so that even in actions where 
 the venue is local, as in case for an injury to a house or land, or right of 
 common or way, after stating the county in the margin, no subsequent 
 statement of place is necessary ; and yet it is usual in these actions, to in- 
 sert a local description, and this notwithstanding the terms of the rule 
 may perhaps be applicable (o). 
 
 *In a declaration of trespass quare clausum fregit the rule is express [ *280 ] 
 that one of the three descriptions must be adopted, as first, a name ; se- Name of 
 condly, description by abuttals ; or thirdly, some other description ; or i^"^"*^ "' 
 the defendant may demur specially, and abutting towards, the frequently quo essen^ 
 adopted word, is incorrect, and the proper abuttal is " on, " so as not to tial. 
 admit of any intermediate property (^) (2). The object of thus requir- 
 
 (h) 1 Lutw. 235. 168; 1 Crom. M. & Kos. 595, S. C. 
 
 <i) Com, Dig. Abatement, H. 13. (m) Id. ibid. 
 
 (j) Duncan o. Passenger, 8 Bing. 355. (n) Per. Cur. in Brindley v. Dennett, 2 
 
 (k) Beg. Gen. see the rule fully Jervis's Bingh. 184; 9 Moore, 388, S. C. 
 
 Rules. (0) See forms, vol. ii. 
 
 (I) Harper «. Chamneys, 2 Dowl. 680; 1 (;)) Lempriere». Humphrey, 1 Harr. &W0II, 
 
 Crom. M. & Ros. 369; 4 1^. 859;. Fisher v. 170; and as to abuttals, see Walford v. Antho- 
 
 Snow, 3 Dowl. 27; Townside v. Gurney, id. ny, 8 Bing. 75; and post, vol. ii. 
 
 t See American Editor's Preface. 
 
 (1) See Slate v Post, 9 John. 81; Clapp v. Gilmatt, 2Blaokf. 45. 
 
 (2) See post, 377'aDd note. In Massachusetts, it is required by statute, that in actions of 
 trespass quare clausum /regit, the close or place of the alleged trespass shall be designated in the 
 writ and dedaration, byname or abuttals, or other proper description. Stat. 1839, c. 151, Si 3- 
 
280 Of Mb DECLABATioi^, 
 
 IT; ITS ing particularity is to avoid the necessity for a new assignment, in case of 
 PABTs, &c; g^ pjgg^ qJ liberum teuementum, which leads to a useless course of pleading 
 Miy. The ^g-j_ Tj^g subject of abuttals will howeveTr be more fully stated when wo 
 
 consider declarations in trespass more particularly (r). 
 Of chang- "^V'e have already noticed another recent improvement in the law of ve- 
 aae in^Zo-' '***'^ enabling either of the superior Courts in which any local action is pen- 
 cal actions ding, or one of the judges thereof, on the application of either party, to 
 mider 8 & order the issue to be tried or writ of inquiry to be executed in any other 
 42 sect', county or place than that in which the venue is laid ; and for that purpose 
 22! such Court or Judge may order a sug-f>-esHon to be entered on the record 
 
 that the trial may be more conveniently had or writ of inquiry executed in 
 
 the county or place where the same is ordered to take place. But this 
 
 regulation does not alter the form of the declaration. 
 
 4tlily. !rhs "What is termed the Commencement of the declaration follows the ve- 
 Com- jj^Q i^ l;}jg margin, and precedes the more circumslanlial statement of the 
 ment.' cause of action. Before the recent rules it contained a statement, Ist* Of 
 the names of the parties to the suit, and if they sued or were sued other- 
 wise than in their own right or liability, or in a political capacity (i. e. 
 as executors, as assignees, or qui tarn, &c.) of the character or right in 
 respect of which they are parties to the suit ; 2dly, Of the mode in which 
 the defendant has been brought into Court / and Mly, A brief recital of 
 the form of action to be proceeded in. 
 The on With the exception that it is no longer necessary to refer to ^he form of 
 
 forms of action, the commencement in substance now contains the same requisites 
 com- as formerly prescribed, and as in mixed actions and in actions removed 
 mence- fj.Qjjj inferior Courts into one of those at Westminster the ancient forms 
 still prevail, it will be advisable to state the same as in force before 2 W. 
 i, c. 39. 
 
 It is obvious that, independently of express regulation or precedent, 
 some introduction preceding the substantial statement of the cause o& action 
 [ 281 ] ig useful ; and the commencement formerly adopted was useful, as point- 
 ing out that the defendant was duly in Court to answer the *coij(iplaint, 
 and concisely intimating the character in which the parties sued or were 
 Buedj and even the nature of the action, by which the parties, interested 
 in the pleadings were enabled more readily to direct their attention to. 
 the subsequent parts of the declaration (s^. 
 As to rjUjg ancient rule that the declaration and the writ should in general 
 
 correspond with regard to the names of the parties ; and the consequen- 
 ces of a misnomer ; and the mode of obviating its effect ; and the instan- 
 • ces in which the objection is waived, have been already stated (t). Where 
 there was a misnomer in the process ih the King's Bench, it was usual to 
 state the fact thus, " — to wit A. B. the plaintiff in this action, complains 
 of C. D. the defendant in this suit, arrested (or if not bailable, ' served 
 with process,') by the name of E. P. being in the custody, &c." And in 
 the Court of Common Pleas, the declaration was thus, " C. D. the de- 
 fendant, arrested, (or served <fec.) by the name of E. P. was attached to 
 answer A. B. the plaintiff in this suit, of a plea, &c." and in each Court, 
 in all subsequent parts of the declaration, the real name only, or the 
 
 (9) Bosanquet's Kules, 59, note 57; 8 Chit- («) 1 Saund. 318, n. 3, 111, 112; 6 T. R. 
 ' ty'sGen.Prac. 471,472. 180. 
 
 (r) See References, jupm, note (p). (0 AnU, 244 to 261. 
 
ITS PARTS AND PARTICULAR REQUISITES. 281 
 
 word " defendant," was to be inserted. The words arrested or served iv. ms 
 with process, were considered preferable to the woi'd sued{u). If the ''^'''''^' *"' 
 plaintiff's name had been mistaken in the process, the mistake might ^*'y- '^^^ 
 sometimes be aided in the same manner, so as to avoid a plea in abate- mence- 
 ment (t)). It was not necessary in any case to state in the declaration ment. 
 the addition of the defendant either of place or degree, for the statute of 
 additions did not extend to declarations (a;). 
 
 In the King's Bench, in actions by bill (the usual proceeding before 2 Mode in 
 W. 4, c. 39, which abolished it,) against a person not privileged, wheth' ^^^?^ ^^ 
 er he were in the actual or supposed custody of the marshal, the declara- y,as 
 tion, (except in Middlesex, when the allegation as to the supposed custo- brought 
 
 dy was unnecessary,) (y) began by stating, " to wit, A. B. complains '°'° ^°^^^ 
 
 of C. D. being in the custody of the marshal of the Marshalsea of our 
 lord the king, before the king himself, of a plea of trespass on the case, 
 (or as the form of action might be.} For that whereas," &c. (^r). It was 
 enacted by4 & 5 W. & M. c. 21, s. 3, that " in alb declarations against 
 a prisoner detained in prison by virtue of any writ or process to be issued 
 out of the Court of King's Bench, it shall be alleged in custody of what 
 sheriff, bailiff, or steward of any franchise, such prisoner shall be at the 
 time of such declaration, by virtue of the process of the said Court, at 
 the suit of the plaintiffs ; *which allegation shall be as good and effectual [ *282 ] 
 as if such prisoner were in the custody of the marshal." That statute 
 did not extend to proceeding by original, or in the Common Pleas, or 
 Exchequer ; and therefore that allegation was only necessary when the 
 plaintiff proceeded upon a bill of Middlesex, or latitat, or by attachment 
 or privilege ; and if the cause of action were not bailable, the same plains- 
 tiff or a third person might in K. B. proceed against the prisoner as if he 
 were at large (a). In cases within the act, if the declaration showed that 
 the defendant was in custody of the sheriff, but not at whose suit, the de^ 
 fendant might be discharged out of custody, or he might demur gener* 
 ally (6). 
 
 In the King's Bench by original, the commencement of the declara^ 
 tion, with the exception of the name of the Court at the top, was in gen- 
 eral similar to that in the Common Pleas against persons not privileged ; 
 and which in assumpsit, case, and trover, was as follows : " — to wit, 0. 
 D. was attached to answer A. B. of a plea of trespass on the case, &Ci, 
 (or as the form of actionmight be,') and thereupon the said A. B. by E. 
 F. his attorney, complains, for that whereas," &c. (c). The defendant's 
 addition of abode or degree ought not to be inserted (d) ; and the states 
 ment that the plaintiff complained by more than one attorney was consid^ 
 ered improper (e). And in the> Common Pleas, or by original in K. 
 B. it would be incorrect to begin the declaration with a queritur, as in 
 the King's Bench by bill (/). 
 
 With respect to the first part of this form it is observable that in ac- 
 
 (u) 1 B. & P. 674. (z) 3 B. & P. 399 ; Com. Dig. Pleader, C. 8, 
 
 (») Jinte, 247. (o) Imp. K. B. 618, 6th ed. s Xidd, 9th ed. 
 
 (x) 3 B. & P. 396; Com. Dig. Pleader, C. 9; 842, 352; 1 T. R. 192. 
 
 2 Esp. Rep. 727. (A) I Wils. 119; 2 Ld. Baym. 1862; Com. 
 
 (y) Dyer, 118 a. The action in this case Dig. Pleader, C. 8. 
 
 was in trespass, and in such diction the Court (c) 1 Saund. 817, 818, and notes; 2 Saund. 
 
 has an original jurisdiction, if the trepass were 1, n. 1. 
 
 committed in Middlesex, or in any other county' {d) Ante, 281, note (x). ^ 
 
 where the Court sits, see 8 Bla. Com. Stephen, (e) i East, 195. 
 
 2ded. 4, 5. ' </) Com. Dig. Pleader, C. 11. 
 
282 OP THE dbclabation, 
 
 ivi ira tions of assumpsit, case, trespass, ejectment, &c. where the original was ati 
 
 ■^'^^' "■ attachment, the commencement of the declaration should state that the de- 
 
 4thlyi The fendant was attached ; and in actions of asteouut, covenant, detinue, annui- 
 
 menoe- ^J) ^^^ replevin, where the original was a summons, the declaration stated 
 
 ment. that the defendant was summoned to answer (g-). But formerly when the 
 
 declaration stated that the defendant was summoned instead of attached, 
 
 or vice versa, the defendant could not demur without craving oyer of the 
 
 original and setting forth, in order to show that it did not without the 
 
 declaration (A) ; and after it was held that the defendant could not have 
 
 oyer of the writ, this technical objection was no longer available (i). And 
 
 in general the' recital or reference to the writ in the commencement of 
 
 [ *283 ] the declaration was not considered any part of the declaration, *and cou' 
 
 sequently a mistake therein was no ground of demurrer (A). 
 Recital of Anciently it was the practice in all actions founded on an original writ 
 the sup- ^Q repeat the whole writ and cause of action in the commencement of the 
 writ. declaration (1) ; and it was said that when the pleadings were ore tenus, 
 the writ being returned, and the parties having appeared, the counter read 
 the writ to the Court and then mentioned the time, place, and circumstances, 
 and the particular damage accrued to the plaintiff; and if a material vari- 
 ance appeared between the writ and declaration, the defendant might have 
 taken advantage of either by motion in arrest of judgment, writ of error, 
 plea in abatement, or demurrer (^). But that practice was altered in some 
 actions by a rule of the Court of Common Pleas, A. D. 1654, by which 
 it was ordered that in future, declarations in actions on the case and on 
 general statutes, other than debt, should not repeat the original writ, but 
 only the nature of the action, as that the defendant was attached to answer 
 the plaintiff in a plea of trespass on the case, or in a plea of trespass and 
 contempt, against the form of the statute (m). And though it was sup- 
 posed that in a declaration in trespass vi et armis in the Common Pleas, 
 in strictness it was necessary to set forth thfi supposed writ, it was not of 
 late the practice to do more than state that the defendant was attached to 
 answer the plaintiff " in a plea of trespass ;" and which was holden suffi- 
 cient on a general demurrer (w) ; and it was suggested that it woul^ prob- 
 ably be held good on a special demurrer, because that short recital was 
 intended only as an intimation to the Court of the nature of the action (w). 
 At length Reg. Gen. Hil. Term, 2 W. 4, reg. IV. expressly enjoined such 
 short recital as well in trespass as in ejectment (o). 
 
 In the King's Bench by bill it was not necessary to recite or notice the 
 form or nature of the action (p) ; and where in the King's Bench a dec- 
 laration in assumpsit recited that the defendant was in the custody of the 
 
 (S) Com. Dig. Pleader, C. 12; Gilb. C. P. Gen. Prao. 461, 462. 
 
 82. (i) 1 B. & P. 367; OilB. C. P. 47; 2 WiU. 
 
 (ft) 1 Saund. 317,' 318, and n. 3; 1 Hen. 894; 1 Saund. 818, n. 2; Com. Dig. Pleader, 
 
 Bla. 250; Ld. Raym. 908; and no advantage C. 12. 
 
 could be taken of a variance between the war- (m) 1 Saund. 318, n. 8; 2 Wils. 105; 2 
 
 rants of attorney and the declaration in the Saund. 876, n. 6; Com. Dig. Action on the 
 
 name? of the parties, 3 B. & B, 65. Case, C. 2; 1 B. & P. 867; 11 East, 64, n. 
 
 (i) 1 Saund. n. 3; Doug. 228; 1 B. & P. (o). 
 
 646 ; Sed vide 2 Chit. Rep. 638. (m) Carth. 108, and see 1 Saund. 818, note 
 
 (fc) 2 Bla. R. 848; Ld. Raym. 903; 1 H. 8; Com Dig. Plteder, C. 9, 11, 12. 
 
 Bla. 250; 11 East, 62, 65; Andrew, 28, 24. (o) Jervis's Rules, 78; Tidd, 488. 
 
 see note (g) injra; post, 285; and 8 Chitty's (p) 11 East, 66. 
 
 (1) See Burton v. Waples, 8 Harring. 76. 
 
ITS PARTS AND PABTICULAR REQUISITES. 283 
 
 marshal " of a plea of trespass," instead of " trespass on the case upon iv. its 
 promises," it was held that a special demurrer for this mis-description of ^^""' *"■ 
 the plea or form of action of thS declaration was not sustainable (9). ^JJ^'y- 
 
 When it is doubtful from the other parts of the declaration what was menoe-""' 
 the intended form of action, the statement in the memorandum was con- ment. 
 sidered decisive (r), and when in trespass the supposed writ *was recited [ *284 ] 
 it was considered to be part of the declaration, so that if it contained the 
 words ui et armis, it would aid the omission in the count part (s). The 
 omission in the Common Pleas of the words, " and thereupon the said A. 
 B. by B. P. his attorney complains," &c. though untechnical, was consid- 
 ered not to be demurrable (t). Where one of several defendants had been 
 outlawed upon an original writ in one of the Courts, the declaration should 
 in the commencement state the outlawry in the particular suit (u) (1). 
 And where one of several plaintiffs or defendants dies after the issuing of 
 the writ and before declaration, it was always the practice in the com- 
 mencement to suggest such death Qx). 
 
 In the exchequer, the commencement, after stating the title of the Court 
 
 and term, ran thus : — " to wit, A. B. a debtor of our lord the king, 
 
 Cometh before the barons of his Majesty's Exchequer, on the 
 
 day of Qlie return day of the process^ in this same term, by E. F. his 
 
 (?) Clarice v. Crosby, K. B. 23d Nov. 1829, 2 Stra. 1023. 
 Chitty for the plaintiff. MS. (t) 1 B. & P. 366. 
 
 (r) 6 T. R. 130. («) 2 East, 144; 1 Wils. 78; 1 East, 183. 
 
 (s) Lutw. 1509; Com. Dig. Pleader, C. 12. (a:) 8 & 9 W. 3, c. 11, 3. 7; 1 Burr. 363. 
 
 (1) At common law, when the plaintiff sues two or more defendants on a joint obligation, and 
 all cannot be arrested, it is necessary to proceed to ontlawiy against such as cannot be brought 
 into court; for the plaintiff cannot declare against those who have been arrested, until he lias 
 outlawed the others, which must be suggested in the declaration; and we have seen that it is not 
 at the option of the plaintiff to bring his action against some of those who are jointly liable to 
 him on a contract, but that all the joint obligors must be named in the process. In the state of 
 New York these diffiouliies are obviated by the 13th section of the act for the amendment of the 
 law, 1 R. L. 521, which provides, " that all persons jointly indebted to any other person upon 
 any joint obligation, contract, or matter whatsoever, for which remedy might be had at law against 
 such debtors, in case all were taken by process issued out of any court of this State shall be an- 
 swerable to their creditors separately for such debts, that is to say : the creditor or creditors of 
 such debtors may issue process against them in the manner now in use ; and in case any of such 
 joint debtors be taken and brought into court, he or they so taken and brought into court shall 
 answer to the plaintiff, and in case judgment shall pass for the plaintiff, he shall have his judg- 
 ment and execution against such of them as were brought into court, and against the other joint 
 debtors named in the process, in the same manner as if they had all been taken and brought into 
 court by virtue of such process; but it shall not be lawful to issue or execute any such execu- 
 tion against the body, or against the lands or goods, the sole property of any person not brought 
 into court." See as to the mode of proceeding in Pennsylvania, Sillman v. Schultz, 5 Serg. & 
 K. 35. This mode of proceeding does not apply to actions of trespass. Rose j). Oliver, 2 Johns. 
 368. Nor to actions against devisees, taking as tenants in common under a will, for a debt of 
 their testator. Jackson v. Hoag, 6 Johns. 59. The declaration in an action against joint debt- 
 ors should state which of them were brought into court, and which not. Hildreth v. Beeker, 2 
 - Johns. Cas. 339. And the defendant brought into court cannot avail himself of a defence person; 
 al to the defendant not found, as infancy. Van Bramer v. Cooper, 2 Johns. 279, Judgment is 
 to be entered against all the defendants in the same manner, as if all had appeared, and, such 
 being the regular form of the judgment, if an action be brought upon it by the defendant not 
 arrested in the original suit, he cannot plead, nul iiel record. Dando v. Doll, 2 Johns. 87, In 
 an action on a judgment, the defendant, who had not appeared to the original action, pleaded, 
 nul tiel record, and that he had not been arrested in the former suit the pleas were held bad. 
 The court in giving their opinion say, " What defence might be made to the merits, by the de- 
 fendant who was not taken in the fir.st suit, is another question, not necessarily arising upon this 
 record. Perhaps he might set up any defence, which he might in his distinct individual capaci- 
 ty, have made in the original suit. But it is not now necessary, and therefore we do not give any 
 definitive opinion upon the point." Bank of Columbia v. Newcomb, 6 Johns. 98; Et Vide Bal- 
 lon V. Hurlburt, 1 Johns. 62; Hutchios ti. Fitch, 4 Johns. 222, 
 
284 
 
 OP THE DECLARATION, 
 
 peraons. 
 
 IV. ira attorney, and complains by bill against 0. D. present here in Court the 
 PAKTs, 0. gg^jjjg ^^y.^ qJ. ^ igg^ ^f trespass on the case, &c. For that whereas," 
 4thly. The &c. (v). 
 
 commence- i •, i . /. . , ... 
 
 ment. J-U suits by iniants, or by or against assignees, executors, attorneys, &c. 
 
 By and the commencement always varied from the above forms. Infants .were stat- 
 against ed to sue by guardian (1) or prochien ami (z) (2). The representative 
 particular character of assignees (3) and executors should be stated in the com- 
 mencement, though it would sufiice if it appeared in the other parts of the 
 declaration (a). In action of debt by or against executors or adminis- 
 trators, in that character,- it was considered that the words " owes to " 
 must be omitted (4) in the commencement (6) ; but assignees of a bank- 
 rupt may sue in the debet and detinet (c). An executor de son tort is sta- 
 ted to be "executor of the last will and testament" of the deceased, as 
 if he were a rightful executor (c?) (5). In actions by or against attor- 
 nies (6), peers, and members of parliament, their privilege as such was 
 usually stated in the introduction (e). In actions by surviving partners 
 
 (j/) "Debtor to the king," and " quo mi- (a.) 1 Saund. Ill, 112. a. 2, 
 nus," are no longer to be averred in pleading. (6) Com. Dig Pleader, 2 D. 1, 2; W. 8; 1 
 Hust V. Pitt, 3 Tyr. 264,exoeptin declarations Saund. 1, 112, n. 1; 3 East, 2. And this is 
 in ejectment or on a removal from an inferior still correctly so, but the unnecessary state- 
 Court, ment of the words " owes to " is now consid- 
 
 (z) 2 Saund. 117 f. note 1. The latler is ered mere surplusage; those words are not now 
 
 lial)le for the costs. Tidd, 9th ed. 100, 101. considered ground even of special demurrer, 
 
 Where an infant plaintiff was taken in exeou- CoUett v. CoUett, 3 Dowl. 211. 
 
 tion for the costs, the Court would not dis- (c) 2 T. R. 46. 
 
 charge him on motion. 13 East, 6; 1 Hodges' (d) 1 Saund. 265. 
 
 Rep. 1U3. (c) 2 Saund.l,n; 6T. R.325! 8B.&P.7. 
 
 (1) Stewart v. Criibbin, 6 Munf. 289. As to infants defending by guardian ad litem, and the 
 history of suits by prochien ami, vide Harg Co. Lit. 1, 2, n. 220. 
 
 (2) 8 Cow. 84. But where an infant has worked for another with the consent of his father, 
 on a promise to pay the infant, the infant may maintain an notion on the contract in his own 
 name, Burlingame v. Burlingame, 7 Cow. 92. An infant may commence an action, but it must 
 be by guardian or next friend. M'Giflin d. Stout, Coxe, 92; M'Daniel v. Nicholson, 2 Rep. 
 Const. Ct. 344; Bauche v. Ryan, 3 Blackf. 472; Wilder ». Ember, 12 Wendell, 191; Priest u. 
 Hamilton. 2 Tyler, 49; Ex parte Scott, 1 Cowen, 33. 
 
 In New York a, prochien ami must he appointed for an infant plaintiff before process sued out. 
 Wilder v. Ember, 12 Wendell, 191. See Fitch v. Fitch, 18 Wendell, 513; Fellows v. Niver, 18 
 Wendell, 563. , ' 
 
 In Connecticut, in an action by a minor, an express admission of a prochien ami to prosecute 
 is unnecessary ; the admission of the prochien ami named in the writ being implied until disal- 
 lowed. Judson V. Blanchard, 3 Conn. 579. See Hamilton v. Foster, 1 Brevard, 464. 
 
 In Massachusetts, the next friend will be admitted bj^ the court without any other record than 
 a recital in the count. Miles v. Boyden, 3 Pick. 213. So in Alabama, Bothea v. M'Call, 3 Al- 
 abama, 449. It is otherwise in Indiana. Keeran v. Clowzer, 2 Blaokf. 604. 
 
 An infant may sue by his next friend although he has a guardian if the guardian does not dis- 
 sent. Thomas v. Dike, 11 Vermont, 278. But the person named as next friend is not regarded, 
 for any purpose, as a party to the suit. Brown v. Hull, 16 Vermont, 673. 
 
 The power of a next friend commences with the suit, and he can therefore maintain a suit for 
 such causes of action only as may be prosecuted without a previous special demand unless the 
 -defendant has waived the necessity of a demand. Miles v. Boyden, 8 Pick. 213. See Crosson 
 V. Dryer, 17 Mass. 222; Trask v. White, 7 Mass. 241; Parsons v. Jones, 9 Mass. 106. 
 
 (3) Assignees under a joint commission against A. and B. suing for a separate debt to A. the 
 infant may describe themselves as assignees of A., without noticing B. Stonehouse v. De Silva, 
 8 Campb. 399, 400. 
 
 (4) But when the plaintiff is entitled to charge the defendant de bonis propriis as on a sug- 
 gestion of a devastavit, those words " owes to" must be inserted; for if he declare in the de- 
 tinet only, the judgment must be de bonis testatoris. Hope v. Bague, 8 East, 6; Spotswood v. 
 Price, 8 Hen. & Mun. 123, 126. 
 
 (6) Campbell v. Toussey, 7 Cow. 68. 
 
 (6) See Dartnell v. Howard, 6 Dowl. & Ryl. 448, where, in an action against the defendants 
 for negligence as attornies, the judgment was arrested, because the declaration did not allege 
 that the defendants were attorneys, or that they were employed as such by the plaintiffs. 
 
ITS PARTS AND PARTICULAR REQUISITES. *285 
 
 they should be described as such either in the commencement or body of i^- ™ 
 the declaration (/) (1) but this is not necessary *iE actions against surviving ^■^*"^' ° ' 
 partners (g-) (2). A declaration stating that the defendant was indebt- ^^^^^^ 
 ed to the plaintiff and B. P. his late partner, without adding deceased, ment. 
 would be untechnical, because, notwithstanding that allegation, he may be 
 still living and then ought to join, but where the omission only occurred 
 in a second count, a demurrer on that ground was set aside as frivolous 
 (A). Where there is no necessity to describe parties as suing or being 
 sued in any special character it is advisable not to do so, and an inaccu- 
 rate description of the party's interest will sometimes be fatal: as where A., 
 B. and C, having been appointed assignees under three separate com- 
 missions of bankrupt, sued as joint assignees, not stating their sev- 
 eral and respective interests in the declarations, it was held fatal (i). 
 In the second volume of Precedents, the several most usual forms of dec- 
 laration by and against persons suing and being sued in particular rights 
 or characters will be found (A). The most salutary rule of Hil. Term, 4 
 W. 4, reg. 21, orders, " That in all actions by and against assignees of a 
 bankrupt, or insolvent, or executors, or administrators, or persons author- 
 ized by act of parliament to sue or be sued, as nominal parties, the charac- 
 ter in which the plaintiff or defendant is stated on the record to sue or be 
 sued shall not in- any case be considered as in issue, unless specially de- 
 nied." 
 
 As many of the ancient ov preceding- iorms oi commencing- declarations Thepres- 
 were the result of the then prevalent forms of mesne process, it followed commence- 
 that when, the uniformity of process act, 2 W. 4, chap. 39, abolished mente of 
 those processes and introduced new writs, that it became necessary or ex- ^eclara- 
 pedient to invent new forms of commencements, and accordingly the judges personal 
 after that enactment, promulgated a rule ordering that every declaration actioBs 
 should be entitled at the top or head (and not by indorsement on the back) commtnc- 
 of the proper Court ; secondly, that every declaration and subsequent *f. j^e""* 
 pleading should be entitled of the very day when it is delivered or filed : superior 
 and Reg. Gen. Mich. T. 3 W. 4, reg. 15, prescribed four forpas of com- Courts (O. 
 mencing a declaration, ;?r5^, upon a summons, as thus: 
 
 No. 1. — Declaration after summons. 
 
 In the — 
 
 On the — r— day of A. D .- 
 
 Veuue. — A. B., by E. P., his attorney, [or, " in his own proper per- 
 son,"] complains of C. D. who had been summoned to answer the said A. 
 B. For that, &c. 
 
 (/)4 B. & Aid. 374; 6 Moore, 832; 2 Stark. (t) SnU, 24. 
 
 356; 2 Marsh. 319; 6 Taunt. 597, S. C. (fr) Post, vol. ii. 
 
 (g) 1 B. & Aid. 29, 2 Chit. Kep. 406. (/) See fully as to the points of practice rer 
 
 (A) Undershell v. Fuller, 1 Crom. M. & Ros. specting declarations, 3 Chitty's Gen. Prac. 
 
 900. 429 to 496. 
 
 (1) CoUyer, Partu. (Perkin's ed.) § 674. Where a declaration is in the name of one, as sur- 
 Tiving partner, it necessarily implies the death of the other partner, although not averred. Pat- 
 terson V. Chalmers, 7 B. Monroe. 595. 
 
 (2) Collyer, Partn. (Perkins's ed.) § 7«); Raborg ». Bank of Columbia, 1 Harr. &; Gill, 231 ; 
 iBoelet V. M'Kinstry, 1 Johns. Cas. 405; Grant v. Shurter, 1 Wendell, 151, 
 
 YOL. J. 40 
 
285 . OF THE DBCLABATION, 
 
 No. 'i.— Declaration after Arrest where the Forty is not in Custody. 
 
 rr. ITS 
 
 FAEIS, &C. 
 
 4thly. The la the- 
 
 commence- 
 ment. 
 
 On the day of A. D. 
 
 Venue. — A. B., by B. P. his attorney, [or, " in his own proper per- 
 son,"] complains of C. D. who has been arrested at the suit of the said 
 A. B. For that, &c. 
 
 [ *286 1 *No. 3. — Declaration where the Party is in Custody. 
 
 Venue. — >A. B., byB. P. his attorney, [or, "in his own proper person,"] 
 complains of 0. D. being detained at the suit of A. B. in the custody of 
 the sheriff, [or, " the Marshal of the Marshalsea of the. Court of King's 
 Bench, or the Warden of the Fleet."] 
 
 JIo. 4. — Declaration after the Arrest of one or more Defendant or De- 
 fendants, and where one or more other Defendant or Defendants shall 
 have been served only and not arrested. 
 
 Venue. — A. B., by B. F. his attorney, [or, " in his own proper per- 
 son,"] complains of C. D, who has been arrested at the suit of the said 
 A. B. [or, " being detained at tte suit of the said A. B., &c. as before,"'] 
 and of G. H. who has been served with a writ of capias to answer the 
 said A. B., &c. 
 
 No. 5. — The Reg-. Gen. Hil. T. 4, W. 4, rule 20, prescribes the follow- 
 ing form of commencement of the declaration when a Plaintiff declares 
 in a second action after a plea in abatement of nott-joiner of another 
 party liable to be sued. 
 
 Venue. — A. B., byB. F. his attorney, [or, "in Ms own proper per- 
 son,"] complains of C. D. and 6. H. who have been summoned to answer 
 the said A. B.; and which said C. D. has heretofore pleaded in ah0,tement 
 the non-joinder of the said G. H., &c. [The same form to be used mutatis 
 mutandis in cases of arrest or detainer.] 
 
 These and other forms of commencements of declarations since the uni-. 
 formity of process act, 2 W. 4, c. 89, will be found in the second volume, 
 [English edition.'fl Where the action has been removed into one of the 
 superior Courts from an inferior Court, or is in the mixed action of eject- 
 ment, the commencement is to continue in the same form as before the new 
 rules, and the defendant is to be in K. B. as in custody of the Marshal, 
 and in C. P. that the defendant had been attached or summoned, and in 
 the Bxchequer the plaintiff is then to be still described as debtor to the 
 king ; and therefore it is no ground of special demwrer that the declara- 
 tion describes the defendant as in the custody of the marshal, but if un- 
 true, can only be an irregularity, and taken advantage' of as such (m). 
 
 (m) Commencement of declaration, stating Courts, and not to such as are removed from iit; 
 
 defendant to be in custody of the marshal of ferior Courts, and the Court will presume in 
 
 the Marshalsea, good on special demurrer, in- favor of its jurisdiction, Dod v. Grant, K. B., 
 
 asmuch as the uniformity of process act ap- H. T. 1836, January 16th. 
 plies only to actions commenced in superior 
 
 t See American Editor's PVe&ce. 
 
Its ^AETS AND PAHTICaLAIt BBQUISITBS. 286 
 
 The Eeg. Gen. Trin. T. 1 W. 4, seems to prescribe as the usual con- iv. its 
 6lasion in all the Courts, the following: " to the plaintiff's damage of ^'^™' ^• 
 
 ^ , and thereupon he brings suit, &c." But in penal actions, when Conclu- 
 
 no damages are recoverable, the ad damnum should be omitted as hereto- !!°^" 
 fore (n). S^^. 
 
 The Eeg. Gen. Mich. T. 3 W. 4, reg. 15, directs that the statement of 
 pledges to prosecute shall be discontinued. 
 
 ' *In general the non-observance of either of the preceding express rules, [ *287 ] 
 although relating to and affecting the iovmsoi pleading, cannot (except in Conse- 
 the instance of the statement of abuttals^ be taken advantage of by demur- 9»«n«» of 
 rer as a defect in pleading ; but must, if at all, be objected to by a sum- from such 
 mons andortfer of a judge, toset aside the proceeding for irregularity (^o'). mlea, viz. 
 Thus although the above rules expressly require a declaration to be enti- ">'■' ^^''J 
 tied of the day and month when it is delivered, yet it has been decided i^regu^^ 
 that the omission of such date is not a ground of demurrer (jo) ; and al- larUUs, 
 though the statute, 2 W. 4, c. 39, requires that the form of action shall and not 
 be expressed in the writ, and it seems that the declaration should accord, ^°^^^g°l 
 yet if it vary, such variance is not a ground of demurrer, (partly so be- 
 cause a writ cannot now appear on the face of the pleadings or record ;) 
 and it can only be objected to by summon^ or motion for irregularity to set 
 aside the declaration on account of such deviation (^q). So, if the com- 
 mencement of a declaration at the suit of an executor be improperly in the 
 debet and detinet, instead of more properly the latter only, the objection 
 is not a ground of demurrer as part of a declaration, but may be rejected 
 as surplusage (r). So the improper insertion or repetition of venue in the 
 body of a declaration, contrary to the above rule, Hil. T. 4 W. 4, r. 8, is 
 not a ground of demurrer, but merely of a summons to strike out the ob- 
 jectionable repetition (s) ; and although it would be absurd for any prac 
 titioner to neglect strict observance with the recent rules, yet it is obvious 
 that it could never have been the intention of the judges that the unneces- 
 sary insertion in the bod^ of a declaration of a venue should be constantly 
 the subject of a summons to strike out those words, which would occasion 
 much more expense, and be infinitely more vexatious than the introduc- 
 tion of those few words (f). The modes of taking advantage of informal- 
 ities in the title or commencement of a declaration is perhaps matter of 
 practice rather than oi pleading, and have been fully considered as such in 
 another work («), 
 
 5thly. After the Commencement of the declaration, the Body or state- '^ ^<*"- 
 ment of the cause of action follows in natural order, and which in every ApjEoima 
 description of action consists oilhree different points, viz. the right, whether thb bodi 
 
 OK 8UB- 
 
 («) Neal V. Kiohardson, 2 Dowl. 73. Thomas, 9 Bing. 678; Tidd, Supp. A. D. 1833, f.^^"' 
 
 (o) And see per Tindal, C. J., in Anderson p. 122. wnvTTt" 
 
 ij. Thomas, 9 Bing. 678. (r) Ctollett «. eoUett, 3 Dowl. 211. Gmf^AL 
 
 {p) Neal V. Richardson, 2 Dowl. 89. (s) Farmer v. Champneys, 1 Crom. M. & "bhbbaIi. 
 
 (9) Thompson v. Dioas, 2 Dowl. 93; SoriT- Eos. 369; 2 Dowl. 680, S. C; Fisher v. Snow, 
 
 ner v. Watling, 1 Harrison, 8; Ward v. Ten- 3 Dowl. 27; Townsend «. Gumey, id. 29. 
 niSon, 1 Adol. & El. 619; Edwards v. Dignam, (<) Per Cur. in Brindley v. Bennett, 2 Biog. 
 
 2 Cr. & M. 346; 2 Dowl. 240; S. C; Chit 184; see pari, " of striking out counts." 
 Oen. Prac. vol. iii. 197; and see Marshall v. (u) 3 Chitliy'i Gen. Frac. 456 to 462i 
 Thomas-, 3 Moore & S. 98; and Anderson v. 
 
287* OF THE DECLARATION, 
 
 IV. ITS founded upon contract or tort independent of contract ; the injuria to 
 PAEI8, &o. gygj^ right ; and the consequent damages. In stating such of *these, all 
 5thiy. The jim requisites of certainty and other points before noticed must be oJ^ 
 action. served. 
 
 The Ian- Keeping in view and subject to those general requisites, every pleader 
 guage of ^a,s, before the very recent pleading rules, at liberty to frame the body or 
 to be ob-°° substance of every declaration in such order and language as he might con- 
 served in sider preferable. He was not however allowed vexatiously to insert any 
 general, superfluous, impertinent or extraneous matter as in an action on a mort- 
 gage deed, a long description of the mortgaged premises (x), or cove- 
 nants, of which no breach was assigned, and if he did so, or inserted nu- 
 merous counts substantially alike, the Courts, in virtue of their general 
 jurisdiction, might, on summons or motion, order the unnecessary matter 
 to be struck out Qy'). But however superfluous or unnecessary the matter 
 or count may be, that affords no ground of demurrer, and can only be ob- 
 jected to by application to strike out the same (2). With a view to com- 
 pel greater conciseness, some recent rules materially control and limit the 
 length of declarations. The Reg. Gen. Trin. T. 1 W. 4, f prescribes 
 forms and length of declaration in assumpsit or debt on bills of exchange 
 and promissory notes, and for common debt recoverable in indebitatus as- 
 sumpsit, thereby very considerably reducing the length of such declara- 
 tion (a) ; and the judges cert3,inly intended that the particular forms 
 there given should be considered not as mere limited examples, but as 
 models of conciseness to be observed and extended to all other cases (&). 
 Prom this also it is to be inferred that quantum meruit and quantum vale- 
 bant counts shall no longer be adopted (6). The Reg. Gen Hil. Term, 2 
 W. 4, reg. 71, f depriving every party of the costs of issues and pleadings, 
 upon which he does not succeed, had a strong tendency to prevent the in- 
 troduction of useless counts, pleas and issues, or even of any useless alle- 
 gations. 
 The Rules At length the Reg. Gen. Hil. T. 4 "W. 4, f reg. 5, 6 and 7, imper- 
 Hil. T. 4 atively prohibited the use oi several counts or pleas, unless a distinct sub- 
 4, S.'ef^ ject matter of complaint or defence is intended to be established in respect 
 prohibit- of each. The student and every practitioner must constantly consult 
 \ag several ^jjose rules, as any deviation might be fatal (c). 
 
 r°*98P 1 Independently of the particular and precise operation of each of these 
 l- . J rules, it has recently become the practice in declaring for the breach of a 
 dentel""" contract to pay money, or deliver goods, or perform works, in cases where 
 improve- there has been a part performance, expressly to admit the same on the 
 ments, as face of the declaration, by which means the plaintiff having himself just- 
 m^e'of * ^y limited his claim to his real demand, the defendant is thus deprived of 
 deoiara- all pretence for pleading the part payment* or partial performance, and 
 tions of the costs of the useless pleading and evidence relating to such part per- 
 menilor' formauce is thus saved (d), and this mode of declaring is particularly de- 
 part per- 
 
 ftrmance. (^.^ j.„^ gg5^ Y27 ; 1 Saund. 223, n. 1 ; 2 (c) See these rules, Jervis's Rules, 99 to 103, 
 
 Saund. 866. and the cases thereon, Chitty's Gen. Prac. 
 
 (y) Id. ibid.; 3 Chitty'B Gen. Prac. 638 to 479 to 485. 
 643. (d) See Bosanquet's New Rules, 50, note 48; 
 
 (2) Gardner D.Bowman, 4 Tyr. 412. 86 to 88; 3 Chitty's Gen. Prac. 475 to 489, 
 
 (a) See the rule and forms, post, vol. ii and see forms, potl, vol; ii. 
 
 (i) Id. 27. 
 
 t See American Editor's Preface. 
 
ilS PARTS AND PARTICULAR BKQUISITES. 289 
 
 sirable when the part performance would take the case out of the statute iv. its 
 against frauds, or statute of limitations. ^^^''^> *"• 
 
 4 Having thus considered the recent rules as they affect the body or sub- ^^'y- The 
 stance of declarations in general, and the prohibitions against second action"^ 
 counts, we will proceed to consider in detail the requisites of declar- 
 ations in each form of action in particular as, 1st, In Assumpsit; 2dly, 
 Debt; 3dly, Covenant; 4thly, Detinue; 5thly, Case; 6thly, Trover; 
 Tthly, Replevin ; 8thly, Trespass. 
 
 In Assumpsit, the statement of the cause of action is either special, or '• .^^ 
 general. Such of the forms of special counts in assumpsit as most fre- ^^^™^^*''- 
 quently occur in practice are given in the second volume. not Tsm- 
 
 In general, where the claim is merely of a pecuniary nature, and is oial count 
 founded on the past or completed or eaiecwierf consideration, it is sufiScient '^f^q^isits 
 to declare upon the common indebitatus comits (e) (1). There are, how- "'P"^"!""' 
 ever, many occasions in which, although it may not be strictly necessary, 
 yet it is judicious to insert a special count in the declaration ; for instance, 
 upon a written contract to build a house, if the work has been performed^ 
 and the reward was to be paid in money, the common counts for work 
 and materials would sufiSce ; but if the plaintiff declare specially, and set 
 out the written contract, and the defendant suffer judgment by default, or 
 pay money in Court generally, the contract, and all material allegations.as 
 stated in the declaration, would be thereby admitted, and no objection 
 could be raised on account of the want of a stamp. In many instances 
 as in actions against agents for not accounting for goods or the proceeds 
 of goods intrusted to them, or for not using due care in selling,. &c. 
 (/) the declaring specially for unliquidated damages will exclude a ten- 
 der or a set-off (^f^, or even the defence of bankruptcy (g-). In these 
 cases a special count is advisable, although the chief part of the plaintiff's 
 demand may be recoverable upon the common counts. Eut where nei- 
 ther these, nor any other satisfactory reason for introducing a special 
 count can be adduced, and the cause of action may be proved upon a common 
 count, the latter alone should be used ; as where goods have been sold and 
 delivered, and the credit or time for payment has elapsed, then a spe- 
 cial count would be improper. When a declaration consisted of one spe^ 
 cial and several general counts, and to *the special counts there were sev- r *290 I 
 eral special pleas, and to the general counts the general issue was pleaded, 
 and the plaintiff entered a nolle prosequi as to the special count, and 
 joined issue on the others, it was held he was entitled to recover on the 
 general counts ; although the matters proved might have been given in 
 evidence and investigated on the special count and the pleas thereto (A). ^^^^ 
 
 In considering the rules to be observed in the structure of special counts ^pldai 
 in assumpsit, six points are principally to be attended to, viz :^ count in 
 
 assumpsit 
 (i). 
 (e) See post, as to the common connts. the common counts, as a debt, the set-off is not 
 
 (/ ) See 1 £sp. Eep. 380; 5B. & Aid. 93; excluded, 4 Campb. 385. 
 8 Campb. 239. But it seems that if on the (g) Ante, 210. 
 special count the plaintiff prove a cause of ac- (A) 1 M. & M. 311. 
 tion, the whole of which is also provable upon (j) See the forms and parts, ante, 291. 
 
 (1) See the cases and notes post, 389, 340. 
 
290 OP THE DECLABATIOS, 
 
 IV. MS 1st, The inducement ; 
 
 PARTS, &o. 2dly, The consideration of the contract ; 
 
 5tMy. The 8aiy The contract itself ( / ") ; 
 
 cause of ^^i i mi J \j J ' 
 
 aotion. 4thly, The necessary averments ; 
 
 Inassump- 5thly, The ireacA / and 
 
 ^^'' 6thly, The damages. 
 
 1st. Of the An Inducement, in an action of assumpsit, is in the nature of a pream- 
 mentta ^^®' stating the circumstances under which the contract was made or to 
 assumpsit, which the consideration has reference. A formal inducement does not ap- 
 pear to be in any case necessary in pleading ; it would be sufiScient if the 
 subject-matter of thfe inducement were alleged in any other part of the 
 declaration ; but it is useful in composition, for the purpose of perspicuity. 
 The matter of inducement may be stated by way of parenthesis, as thus : 
 " For that whereas heretofore, to wit, on, &c. in consideration that the 
 plaintiff, at the request of the defendant, [he then being an attorney of 
 the Court of our lord the king before the king himself, or he then being 
 a carrier of goods for hire from Sfc. to, <^c.] had then retained and em- 
 ployed him as such attorney to, &c.; or the declaration may begin by a 
 formal inducement, as in the precedent referred to in the notes (A). 
 Where a variety of facts preceded the contract, and are so connected 
 with it that the statement of them is necessary to render the count intelli-' 
 gible, it is obviously better to adopt a formal inducement (Z), than in the 
 description of the consideration or of the contract to show those facts in 
 one continued sentence of great length. Thus, in an action on a wager 
 on a horse-race, it is usual to begin the declaration with an inducement of 
 the expected race (m). So, in assumpsit upon an award, the existing 
 differences between the parties are concisely stated, as that " certain dif- 
 ferences had existed and were depending (n) ; and on a contract to pay 
 money upon a consideration of forbearance the declaration begins by stat* 
 ing with brevity the existence of the debt forborne, and from whom it is due 
 [ *291 J (o). The *inducement,or averment by way of introductory allegation,is pe- 
 culiarly proper where a party is charged upon, or in respect of, the breach of. 
 a contract or implied duty resulting from any particular character or capacity 
 of the defendant. Thus, in a declaration against an attorney for negligence, 
 or a carrier, a coach proprietor, a wharfinger, or captain of a ship, or an 
 innkeeper, for the loss of goods, &c., it is usual and proper to show, by 
 way of inducement, or at least by other averments in the declaration, that 
 the defendant followed the occupation in respect of which the plaintiff 
 employed him. If no such allegation be contained in the declaration, 
 the defendant cannot be charged thereon for the breach of a duty which 
 results only from the particular character which he held, and in reference 
 to which he was retained (p). But where the mere statement of the con- 
 sideration and promise will be sufficiently intelligible, without any prefa- 
 tory allegation, they may be set forth without any inducem^ent ; as in 
 declarations upon bills of exchange, &e. which should proceed at once to 
 
 (j ) Properly speaking, the term contract (m) Pott, vol. ii. 
 
 includes the consideration as well as the prom- (n) Id. 
 
 ise. But it is here used as signifying the de- (o) Id. 
 
 tenda,nt'a promise only. (j>) 4 B. & C. 845; 1 D. & E. 788, S. C.j 
 
 (&) See ante, 262 ; and post, vol. ii. see 6 Moore, 54: 2 New Rep. 345,] 464; 12 
 
 (0 4 B. & C. 345; 6 D. & R. 488, S. C. East, 94. 
 
IN ASSUMPSIT. 291 
 
 state the instrument or contract, -without any preamble of the custom of it. its 
 merchants, which ought not to be set forth (^). ^•*^^^^' *^°' 
 
 It is said that as the office of an inducement is explanatory, it does not ^*'y- "^^^ 
 in general require exact certainty (r). Thus, where an agreement with a action"^ 
 third person is stated only as inducement to the defendant's promise, i. in js- 
 which is the principal cause of the action, it was considered in general sumpsit. 
 sufficient to state such agreement without certainty of name, place, or l- induce- 
 person (s). This rule prevailed in the statement of matter which merely ™®"*" 
 constituted an executed or past consideration (^); as when the declara- 
 tion charged, that in consideration that the plaintiff " had, at the defend- 
 ant's request, granted to him by deed the next avoidance of a certain 
 church," the defendant promised to pay the plaintiff *6100, the court 
 held the declaration good, although it was objected, in arrest of judg- 
 ment, that the time or place at which the grant was made was not stat- 
 ed (u). So in declaring upon a promise to pay money in consideration of 
 the forbearance of a preceding debt, though some cause of action must be 
 alleged, it was not necessary to state the particular cause or subject- 
 matter of the debt, or the time when or place where it was contracted (x) ; 
 and in an action for negligence against an attorney who had been em- 
 ployed to sue another, it was not necessary or advisable to state in an in- 
 ducement that such other person was indebted ; and" if it be stated though 
 unnecessarily, it must be proved (7/). But where the inducement dis- 
 closing a part consideration *also professes to state some matter material [ *292 J 
 to be ascertained with certainty, it must be stated with precision and par- 
 ticularity («). Therefore, where in a declaration in assumpsit for not 
 accepting a lease, the inducement charged that the plaintiff was possessed 
 of the premises for a certain term, ending on a day named, and the proof 
 showed that he had only a shorter term, the court held the variance fa- 
 tal, (a). It sTi&ces i{ the introductory matter or inducement be stated 
 according to its legal effect (6) ; and the first part of the rule, that 
 allegations of matter of substance may be substantially proved, but alle- 
 gations of matter of description must be literally proved (c) , applies pe- 
 ^culiarly to averments in an inducement ; and therefore if the inducement 
 'be not a mere matter of description, and it be substantially proved as al- 
 leged, a slight variance will be immaterial. Even material matter laid 
 in an inducement need not be proved precisely as alleged when stated 
 under a videlicet, if it be correct in substance. Thus, where in a declar- 
 ation to recover from the defendant a debt due from a third person, which 
 the defendant had promised to pay in consideration of forbearance, the 
 sum due was stated in the inducement under a videlicet to be £26, 13s, 
 Qd., and was described as the balance of a larger sum, and the statement 
 of the contract referred to the sum so alleged in the inducement to be 
 due, but only £26 were due as the balance ; the Court held that the va- 
 
 (g) Jlnte, 216, 217. («) Cro. Eliz. 715. 
 
 (r) Tidd, 9th edit. 436, cites Com. Dig. (a) Hob. 18<,post, vol. ii. 
 Pleader, jC. 31; see 13 East, 116; 3 T. R. {y) Peake'sEep. 119. 
 616, per BuUer, J.; Stephen, 2d edit. 364, («) 13 East, 102; pos/, vol. ii. 
 416, cites Cro. EUz. 715. (a) 1 M. & P. 717; 4 Bingh. 653, S. C; 
 
 (s) Telv. 17. see 1 B. & B. 536. 
 
 (i) Id.; 10 Go. 59 b; Com. Dig. Pleader, C. (J) 3 Moore, 674, 695, 696. 
 31, 43; E. 10, 18; 13 East, 105, 116; and (c) Jinte, 230, note (e) ; 3 B. & C. 4; 6 D. 
 
 ^ee 2 Chit. Bep. 311 ; 6 T. K. 143. &, B, 626, S. C. ; see further as to this, post. 
 
292 
 
 OP THE DECLARATION, 
 
 action. 
 1. In as- 
 sumpsit. 
 1. Induce' 
 meat. 
 
 IV. ITS riance was not material (r;?) (1). la general, however, every allegation 
 PAET3, &o. jjj ^^ inducement, -which is material and not impertinent and foreign to • 
 5thly. The tj^g cause, and which consequently cannot be rejected as surplusage, must 
 cause ^^ proved as alleged, and a variance would be fatal ; and consequently 
 great attention to the facts is necessary in framing the inducement, and 
 care must be taken not to insert any unnecessary allegation (e). Thus, 
 in the case just mentioned against an attorney, where the declaration stat- 
 ed that B. P. was indebted to the plaintiif, and that the plaintiff employed 
 the defendant to sue her, it being proved that B. P. was a feme covert at 
 ■ the time the supposed debt accrued, and consequently not in point of law 
 indebted, the plaintiff was nonsuited ; though the declaration might have 
 been sufficient without stating that the third person was indebted (/). 
 Where, however, the matter unnecessarily stated in the inducement is 
 wholly impertinent, and might be struclc out as surplusage, there are some 
 cases in which a failure in proof of such statement would not be materi- 
 al(g-). 
 
 [ *293 ] *The recent rules of pleading, Hilary Term, 4 W. 4, as they apply to 
 Induce- most actions, and especially assumpsit and case, now relieve a plaintiff 
 ment, if from the necessity for proving matter of inducement, or from any risk of 
 ""rsed" variance in the statement thereof, unless the defendant's plea expressly 
 need not traverse or deny the inducement ; thus, in an action on the case, if the 
 be proved, declaration state that the plaintiff was possessed of a close and a pond 
 full of water therein, and then stated an injury to the water in the pond, 
 it was held that the plea of not guilty did not put in issue the inducement, 
 even though connected with the description of the injury, and therefore 
 the defendant could not on the trial dispute the correctness of the induce- 
 ment Qi). 
 
 2dly. The 
 
 Con- 
 
 tideraiion. 
 
 In treating of the rules relative to the statement of the Consideration 
 for the contract, we will consider, 1st, What consideration musf appear 
 on the face of the declaration, and how it should be stated ; and 2dly,'the 
 doctrine of variances between the statement of the consideration and the 
 evidence in support of it. ' 
 
 In declaring upon a contract not under seal, it is in all cases necessary 
 to state that it was a contract that imports and implies consideration, as 
 a bill of exchange or promissory note (i) or expressly to state the par- 
 ticular consideration upon which it is founded (Je) (2); and it is essential 
 
 (rf) 2 Moore, 114; see IB. & B. 536; see 
 post as to the scilicet. 
 
 U) Arde, 228, 230; 4 B. & C. 380; 6 D. & 
 R. 500, S. C; Dougl. 667; 5 T. E. 498; 8 B. 
 & P. 463; 2 Chit. Rep. 811, Steph. 2d edit. 
 285. As to what may be atruck out as sur- 
 plusage, see ante, 229. 
 
 (/) Peake's Rep. 119. 
 
 (g) Ante, 229; 2 Bla. R. 840; Dougl. 667; 
 3T. R. 498;3T. B. 646. 
 
 (A) Dukes V. Gostling, 3 Dowl. 619; Pran- 
 kum II. Earl Palmouth, 4 Nev. & Man. 380; 
 
 1 Harr. &, Wol. 1; 6 Car. & P, 529, S. C. 
 
 (i) These instruments always imply a con- 
 sideration, Graham v. Pitman, 5 Nev. & Man. 
 137, so that, although the statute against 
 frauds, 29 Car. 2, c, 3, s. 4, requires an un- 
 dertaking by a third person to pay the debt of 
 another to state the consideration, yet by 
 means of a bill or note the statute is avoided, 
 Ridout V. Brjstow, 1 Tyr. Rep. 84; Poplewell 
 V. Wilson, 1 Stra. 264. 
 
 (Je) Com. Dig. Action, Assumpsit, 8; Bui. 
 N. P. 146, 147; 1 Saund. 211, n. 2. 
 
 (1) In declaring in assumpsit on a collateral undertaking, the declaration must be special, 
 setting forth the contract; but if the undertaking be original, the plaintiff may declare gener- 
 ally. Northup V. Jackson, 13 Wend. 85, 
 
 (2) Douglass V. Davie, 2 M'Cord, 218; Burnet v. Bisooe, 4 Johns. 285; Powell «. Brown, 
 3 Johns. 100; Bailey v. Freeman, 4 Johns. 280; Lansin v. M'Killip, 3 Gaines, 288; Beauchamp 
 V. Bosworth, 3 Bibb, 115; Beverleys v. Holmes, 4 Munf. 95; Moseley v. Jones, 5 Munf. 28; 
 
IN ASSUMPSIT. 298 
 
 that the consideration stated should appear to be legally sufficient to sup- i''- ™ 
 •port the promise, for the breach of which the action is brought (1). An ^■^™' *"• 
 examination of the various points of law relating to the sufficiency of ^"''y- "^^^ 
 consideration (Z), would be foreign to the object of this treatise; but it Sn°^ 
 may be important to make some few observations as to the mode of stating \, in w 
 the consideration upon the record in such a manner that it may appear sumpsit. 
 legally sufficient. Although no mode of pleading can enable a plaintiff 2. The 
 to recover when the consideration is insufficient or illegal, if the defend- """n'"*"*' 
 ant by his plea properly raise the question, yet it may not unfrequently 
 occur that a sufficient consideration may exist, but that the action may be 
 defeated in consequence of the statement upon the pleading being imper- 
 fect. 
 
 In declaring upon bills of exchange and promissory notes and some 
 other legal liabilities, the mere statement of the liability which consti- 
 tutes the consideration is sufficient (2); but in other cases of simple con- 
 tracts, it is necessary that the declaration Should disclose a consideration, 
 which may consist of either benefit to the defendant, or *detrinjent to the [ *294 ] 
 plaintiff, or the promise will appear to be nudum pactum, and the decla- 
 ration will consequently be insufficient (ni) (3), Thus, where the plain- 
 tiff declared that a person, since deceased, was indebted to him, and that 
 
 (0 See, in general, 1 Saund. 211, n. 2; 3 (m) See previous note; 4 East, 455; 1 
 
 Chit. Com. Law, 63 to 99; Chit. jun. on Contr. Taunt. 522. 
 6. &o. 
 
 Hendrick «. Seeley, 6 Conn. 176; Russell v. South Britain Society, 4 Conn. 508; Brooks ». 
 Lowrie,! Nott&M. 342; Deforest ». Frary, 6 Cowen, 151; Lansing. ». M'Killip, 3 Cainesj 
 286; Carrell » Collins, 2 Bibb, 427; Favor v. Philbriok, 7 N. Hamp. 3^6; Moore v. Ross, 7 N. 
 Hamp, 528; Shelton v. Bruce, 9 Terger, 24; Decker o. Bjrhap, 1 Morris, 62; Bruner v. Stqut, 
 Hardin, 225; Hemmeuway v. Hicks, 4 Pick. 497; Gaines v- Kepdriok, 2 Con. Ct. 339; Benden 
 V. Manning, 2 N. Hamp, 289; Moseley v. Jones, 5 Munf. 23; Wheelright v. Moore, 1 Hall, 201; 
 Connolly v. Cottle, 1 Breese, 286; Harris v. Rayner, 8 Pick. 541. 
 
 It is not sufficient to allege that the defendant " being indebted," in a certain sum in conside- 
 ration" thereof, promised to pay. &c., without alleging the cause or consideration on which the 
 debt is founded ; and this rule applies to special as well as to general assumpsit. Beauchamp v. 
 Bosworth, 3 Bibb, 115; S. P. Chandler v. State, 5 Har. & Johns. 284; Maury o. Olive, 2 Stew. 
 472. 
 
 In Massachusetts, by long practice, a declaration alleging, that the defendant being indebted, 
 " according to the account annexed" to the writ, promised, &o. is good. Rider v. Robins, 13 
 Mass. 284. . The schedule supplies the allegation of consideration, id. 
 
 (1) Harding v. Cragie, 8 Vermont, SOI. 
 
 (2) In declaring on a promissory note (either in assumpsit or in debt) under the statute of 
 Anne, it is not necessary to allege any consideration ; the terms of such a note import a con- 
 sideration. Peasely v. Boatwright, 2 Leigh, 198. See Chappel u. Proctor, Harper, 49; Gaines 
 V. Kendricky 2 Rep. Con. Ct. 339; M'Curdy o. Dudley, 1 Marsh. 288; Mors ,,. M'CIaud, 2 
 Ham. 5; Richmond v. Pattenson, 3 Ham. 368. Notes not negotiable, see Jerome v. Whitney, 7 
 Johns. 821; Odiorne v. Odiorne, 5 N. Hamp. 316. Bank Notes, Gilbert v. Nantucket Bank; 5 
 Mass. 97. - -1 
 
 (3) Ciirley v. Dean, 4 Conn. 265. Whenever the instrument declared on does not on its facB 
 <Jisolose a consideration it must be averred and proved. Douglas v. Davis, 2 M'Cord, 218. In 
 declaring in assumpsit for the breach of a contract, it is not necessary to set forth the payment 
 of a part of the consideration, admitted by the contract to have been received. Dox v. Dev 3 
 Wend. 357. ... 
 
 Where a note is not given upon any one consideration, which whether good or not, whether it ♦ 
 fail or not, goes to the whole note at the time it is made, but for two distinct and independent 
 considerations, each going to a distinct portion of the note, and one is a consideration which the 
 law deems valid and sufficient to support a contract, and the other not, there the contract shajl 
 be apportioned, and the holder shall recover to the extent of the valid consideration, and no 
 further; and the question as to the amount, is for the jury. Parish v. Stone, 14 Pick. 198. A 
 declaration on an indorsement of a note guaranteeing payment by the maker must set out the 
 consideration of such indorsement. Greene v. Dodge, 2 Ham. 430. See Wheelriaht v. Moore 1 
 PaU, 201. 
 
 ToL. I. 41 
 
294 OP THE DECLARATION, 
 
 IT. ITS after the death, in consideration of the premises, and that the plaintiff, 
 PAKTs, &c. ^^ ^jjQ defendant's request, "would give time for ihe payment of the debt,. 
 5thly. The ^Jjq defendant promised, &c.; but did not state that there was any person 
 aeSon." i° existence who was liable, in respect of assets or otherwise, to be sued 
 
 1. In as- ^J tl's plaintiff for the debt, and to whom he gave time ; the declaration 
 gumpsit. was held insufficient on demurrer; for no benefit was shown to move to 
 
 2. The con- the defendant, nor did it appear that any detriment had been sustained 
 sideration. y^j ^j^q plaintiff, as it was not stated that any one was liable to be sued by 
 
 him, or that he had suspended the enforcement of any right (m). So, 
 where the declaration in assumpsit alleged, that in consideration that the 
 plaintiff would retain and employ the defendant to lay out a sum of 
 - money in the purchase- of an annuity, the. latter undertook to do his duty 
 in the premises, and that the plaintiff accordingly did retain the defend- 
 ant, but that the defendant neglected to do his duty, and took an insuflS- 
 cient security ; it was held, on motion in arrest of judgment, that the 
 count was bad, since it did not show that any reward was to be paid to 
 th^ defendant, nor aver that the defendant 'yvas, employed as an attorney, 
 or in any particular character, by reason of which it became his absolute 
 duty not to take a security of an insufiBcient nature (o). 
 
 Upon this subject it has been laid down as a rule, that the considera- 
 tion should be co-extensive with the promise, in order to support it. 
 Thus, where the plaintiff stated that the defendant was liable in the char- 
 acter of executor to pay a certain debt, and then averred, that in con- 
 sideration thereof, he personally promised to pay the debt, the declaration 
 was held- bad in arrest of judgment, no additional consideration being 
 shown for the enlarged responsibility arising from the promise (/?). And 
 upon the same principle, a declaration against a husband alone, on his 
 mere promise to pay the debt of his wife contracted before marriage, 
 without showing any new consideration, was also considered insufficient, 
 and the judgment was arrested (g) (1). 
 
 When the consideration for the defendant's contract consists of any 
 agreement on the part of the plaintiff, it must appear from the declaration 
 that such agreement was binding on the plaintiff at the time the defendant's 
 promise was made ; for if it should appear from the declaration that the 
 r *295 1 obligation was all on one side, the defendant's *engagement would be nu- 
 dum pactum, and the declaration consequently bad (r) (2). We have 
 already seen, that, at least in some instances, it may be sufficient to show 
 that the consideration moved from a third person, if the promise be made 
 for the benefit of the plaintiff (s). 
 
 When part of an entire consideration, or one of several considerations, 
 
 (n) 4 East, 455. ourely; contained a sufficient consideration for 
 
 (0) 4 B. & C. 345; liut see 2 Bingh. 464 ; the defendant's promise, after verdict. 
 M'ael. & Y. 205, S. C, in which it was held ( p) 7 T. R. 350 a. 
 
 that a count in assumpsit that the plaintiff had (?) Id. 348. 
 
 retained the defendant, at bis request, to lay (r) 3 T. K. 658; see id. 149; 1 M. & Sel. 
 
 out -£700 in purchase of an annuity; that de- 557; lB.&Ald.681; 16 East, 45; 3 B. & C, 
 
 fendant promised to lay it out securely; that 668, 690; 5 D. & R. 512, S. C. 
 plaintiff delivered ihe money to him for that (s) Ante, 2, 8. But see 4 Bar. & Adol. 
 
 purpose, and that defendant laid it out iuse- 483; 1 Nev. & Man. 803, S. C. 
 
 (1) See Berry v. Harper, 4 Gill & Johns. 470. 
 
 (2) Van Alstyne v. Whimple, 5 Cowen, 162; Loomis v. Newhall, 15 Pick. 159; Bonallen v. 
 Lenox, 6 Dana, 91; Woodruff v. Heniman, 11 Vermt.592; Hinesbury v, Sumner, 9 Vermt.28j 
 Armstrong v, Toler, 11 Wheat. 258; Carlton v. Whitcher, 6 N. Hamp. 196; Hinde v. Chamberr 
 Jain, 6 N. Hamp. 225; Pratt v. Oliver, 1 Hoff. 479. 
 
IN ASSUMPSIT. 295 
 
 stated in a declaration, is merely frivolous, and void, without being illegal, iv- ™ 
 ■and the residue is good, and extends to the whole of the promise, the void ^^"™' *'• 
 part, will not vitiate the declaration (1), but may be rejected as surplus- ^"ily- ^he 
 age ; and the promise will be referred to and supported by that part of ^tTon"^ 
 the consideration which is legally sufiScient (0- But if part of an entire i. i„ as- 
 consideration, or one of several considerations stated, be ille<y-al, though sumpsit. 
 the residue may be good, the whole declaration will, it appears, be vitiat- 2. The con- 
 ed by the illegal part (m) (2). ' sidemtion. 
 
 Another material circumstance to be attended to in the statement of the 
 consideration is, that it should be shown with a proper degree of certainty 
 and particularity. A declaration may contain enough to disclose a consid- 
 eration, which is legally sufficient to support the promise, but may be lia- 
 ble to objection on special demurrer, on account of omitting to set out that 
 consideration with a sufficient degree of certainty (x). The degree of 
 certainty required in stating the consideration will depend, in some degree, 
 on the particular species of consideration to be stated, and it will there- 
 fore be necessary to notice the various kinds of considerations. They ^e, 
 1st, Executed (3), or 2dly, Executory; to which may be added, 3dly, 
 Concurrent, and 4thly, Continuing Considerations. 
 
 1st. An eoiecuted consideration consists of something past or done be- 
 fore the making of the promise. It is said not to be necessary in stating 
 executed considerations, to allege them with the certainty of tirhe and place 
 required in stating executory considerations nor with the same particular- 
 ity in other respects as to quantity, quality, value, &c. Qy') ', because the 
 allegation of a past consideration is considered to be matter of induce- 
 ment, and as such, not in itself traversable (z'). It must, however^ be 
 shown, that the *executed considerations arose at the defendants request [ *296 j 
 (a}(4), though such request may, in some cases, be implied in evidence, 
 
 (t) Ring. II. Roxbrough, 2 Crom. & Jer. (j) See 13 East, 105, 116, 117; Stephen, 
 
 418; 2 Tyr. 468; King v. Sears, 2 Crom. M. 2d edit. 365, 415; see as to matter of induce^ 
 
 & Ros. 48; Cro Eliz^ 148, 848; Cro. Jao. 128; ment, ante, 290. 
 1 Sid. 38; Bui. N. P. 147. (z) Id.; Bui. N. P. 146; Salk. 22; Hob. 106. 
 
 (u) Cro. Eliz. 199; 4 Leon. 3; T. Jones, 24. Sed qucere, it is certainly traversable, and 
 
 Com. Dig. Action, Assumpsit, B. 13. As to though it need not be averred on what precise 
 
 the distinction of a consideration being illegal day the executed consideration took place, yet 
 
 in part at common law, or by statute, see Hob. it must be shown that it had previously oe-* 
 
 14; 1 Saund. 66, n. 1; 3 Taunt. 244; 5 Id. curred as " before them " &c. 
 746; 6 Id. 359; 4 M. & Sel. 66; Chit. jun. (a) 1 Saund. 264, n. 1; 2 Stra. 933; Dyer, 
 
 Contr. 228, 229. 272; and per Parke, B., in King v. Sears, 2 
 
 (x) See the general rule as to certainty in Cr. M. & Ros. 53. 
 pleading, ante, 288. 
 
 (1) See Beach v. Lee, 2 DalL 256; Buckner «. Smyth, 4 Desaus. Cha. 371; Lowryv. Brooks, 
 2M'Cord,421. '' 
 
 (2) See Chitty Contr. (7th Am. ed.) 426, 664, 692, and notes; Woodruff v. Henniman, 11 
 Vermont, 592; Loomisu. Newhall, 15 Pick. 159; Carlton v. Whitcher, 5 N. Hamp. 196. 
 
 (3) Where a son who was of full age, and' had ceased to be a member of his father's family, 
 was suddenly taken sick among strangers, and being poor and in distress, was relieved by the 
 plaintiff, and afterwards the father wrote to the jilaiutiff, promising to pay him the expenses in- 
 curred, it was held that such promise woUld not sustain the action, there being no consideration 
 for it Mills v. Wyman, 8 Pick. 207. See the limitation of the rule, " that a moral obligation 
 is sufficient to support an express premise," there stated by Pakkee, C. J, See also Cooke v. 
 Bradley, 7 Conn. 57. See farther Andrews v. Ives, 3 Conn. 368; Dodge v. Adams, 19 Pick. 429; 
 Parker v. Carter, 4 Munf. 273; M'Pherson v. Rees, 2 Pennsylv. 521; Bentlyw. Morse, 14 John. 
 468; Glass v. Beach, 5 Vermont, 175; Barlow v. Smith, 4 ib. 114; Commissions v. Perry, 5 
 Ham. 58; Turner v. Partridge, 3 Pennsylv. 172; Snevely v. Bead, 9 Watts, 401 ; Stafford v. Ba- 
 con, 25 Wendell, 384; S. C. 2 Hill, 353. 
 
 (4) Parker v. Crane, 6 Wend. 647; Leiand v. Douglass, 1 Wend. 492; Balcolm v. Croggin, 
 5 Pick. 296; Train v. Gold, 5 Pick. 388; Jewett v. Somersett, 1 Greenl. 128; Goldsby v. Rdbin- 
 
1^0 OP THE DECLARATION, 
 
 xy, 13^ as when the defendant has derived benefit from the consideration (1), 
 tAKTs, ^c. g^jj^ jjg^g afterwards made an express promise to the plaintiff (2) or has re- 
 5thly. The cognized the plaintiff's act ; and it is only necessary in cases of executed 
 Mtion. consideration to state that the consideration for the defendant's promise 
 
 1. In as- moved at his request (b), the executed consideration must, in legal esti" 
 aumpsit. mation, be of some value, but the performance by the plaintiff of any act 
 
 2. The con- he was not legally bound to perform would suffice, as the producing or giv- 
 sideration. ^jjg ^q ^q defendant a certain letter (c). There are some cases in which 
 
 the plaintiff has the option of stating the consideration either as an exe- 
 cuted or as an executory consideration, and which will be hereafter no- 
 ticed (d). 
 
 Statement 2dly. In the statement of an Executory consideration a greater degree 
 iorv con^ of Certainty is required (fi). The consideration and the promise of the 
 gidera- defendant are two distinct things, in order to show that the plaintiff pos- 
 tionB. sesses a right of action, it is in general necessary to aver performance of the 
 consideration on his part, which allegation being material and traversable 
 must be made with proper certainty of time and place, <fec. (/)(3). This 
 obligation of averring performance imposes upon the plaintiff the necessi- 
 ty of stating the consideration with a greater degree of certainty and 
 minuteness than in the case of executed considerations ; for the Court 
 would otherwise be unable to judge whether the performance averred in 
 the declaration were sufficient (g-). Thus, in an action for wages, agreed 
 to be paid to the plaintiff in consideration that he would proceed on 
 a certain'voyage, it has been held necessary to state the particular 
 
 (6) King V. Sears, 2 Cr. M. & R. 48; 1 Roxbrough, 2 Tyr. 468; 3 Crom. & Jer. 418i 
 
 Saundi 264, note 1, a good instance, it was A special traverse of the allegation of per- 
 
 there stated that in consideration that the formance was not, at least before the pleading 
 
 plaintiff wimld forbear to distrain on a third rules, H. T. 4 W. 4, usual, in consequence of 
 
 person (without saying at de/enrfanj'srcguest), the latitude heretofore allowed to the general 
 
 defendant undertook to pay, &c., and held suf- issue in assumpsit But since those rules'the 
 
 ficient on special demurrer. allegation of consideration and performance in 
 
 (c) Wilkinson v. Olivera, 1 Bing. N. C. 490. a special count need not be proved, unless ex- 
 
 (d) Post, 298, note (t) ; 7 Bar. & Ores, pressly denied in pleading. 
 
 423. (g) See Com. Dig. Action, Assumpsit, H. 4; 
 
 (c) 1 Saund. 264, n. 1. Pleader, C. 
 
 (/) Bui. N. P. 146 a; Salk. 22; Ring ». 
 
 Son, 1 Blackf. 247; Stoever v. Stoever, 9 Serg & B. 434. A past and executed consideration, 
 which is not alleged to have been at the request of the defendant, and in no way appears to have 
 been for his advantage, is no legal consideration, and is a defect not cured by verdict. Harding 
 ». Cragie, 8 Vermont, 501; Chitty Contracts (6th Am. ed.) 61, and note (8). See Bulkley v. 
 Landon, 2 Conn. 204; Chaffe v. Thomas, 7 Cowen, 858; Lonsdale v. Brown, 4 Wash. C. C. 148; 
 Hitchcock V. Litchfield, 1 Boot, 206. 
 
 An entire promise founded partly on a'past and executed consideration and partly on an executory 
 consideration, is supported by the executory consideration. Loomis v. Newhall, 15 Pick. 169; 
 Andrews v. Ives, 3 Conn. 868; see No. 43 Amfer. Jurist, 2 to 16, and cases tberecited for an ex- 
 amination of the doctrine of executed consideration. The law relating to past or executed consid- 
 eration, is fully discussed in the opinion of Eeni, J., in Livingston ti. Rogers, 1 Caines,, 583, where 
 it was held, in conformity to the case of Hayes v. Warren, Str. 937, (cited in note e.) that a 
 promise laid to have been made, afterwards, on the same day with the consideration, is a nudum 
 pactum. See also Comstock v. Smith, 7 Johns. 87; Hicks v. Burhans, 10 Johns. 243; diverts v. 
 Adams, 12 Johns. 362; Mitchell v. Bell, Taylor, 61 ; Frear v. Hardenbergh, 6 Johns. 272; Rob- 
 ertson I). Bethune, 8 Johns 350. See also Edwards v. Davis, 16 Johns. 2^1, and the reporter's 
 note, 283. But see Clark v. Herring, 5 Binn. 33; Oreeves v. M'Allister, 2 Binn. 6.91 ; 6 Mass. 
 43. 
 
 (1) As, from the beneficial nature of the act performed by the defendant. Hicks v. Burhans, 
 10 Johns. 243; Livingstone v. Rogers, 1 Caines, 685, 686; Comstock «. Smith, 7 Johns- 88; Oat- 
 field V. Warning, 14 John. 188. 
 
 (2) Greeves v. M'AUister, 2 Bini. 591. See Goldsby v. Robertson, 1 Blackf. 247. 
 (8) Olover V. Tuck, 24 Wtadell, 158; Russell v. Slade, 12 Conn. 465. 
 
IN ASSOMPSIT. 296a 
 
 voyage (A)(1). But the same degree of certainty is not required in stat- iv. its 
 ing any particular part of the consideration, with respect to which the ''^™' *o. 
 circumstances of the ease render it unnecessary to aver performance, ^^^'y- The 
 Thus, in actions for negligence, &c. against attornies, carriers, and other aoHon" 
 bailees* who have been employed by the plaintiff for reward, it is not ^ j„ "^g. 
 necessary to specify the amount of remuneration stipulated to be *given, sumpsit. 
 but the plaintiff may state that the retainer was " for certain reasonable [ *297 ] 
 reward" (i). It will be observed, that in these cases the payment of the 
 reward does not constitute a condition precedent, and that in point of 
 fact it is the retainer that constitutes the consideration : the reward may 
 or may not become payable according to circumstances. But it is obvi- 
 ously essential in general to aver that the retainer was for reward, other- 
 wise the promise would appear to be nudum pactum (A) 
 
 3dly. A Concurrent consideration occurs in the case of mutual promt- Statement 
 ses, which are a third species of consideration, partaking of the nature of °l^°"g^^' 
 the preceding two. The plaintiff's promise is executed, but the thing sidera- 
 which he has engaged to perform is executory, as in promises to marry, tions. 
 to submit to an award on wages, &c. The promises of each party must 
 in general be concurrent or obligatory on both at the same time (2) , to 
 render the promise of either binding, and must be so stated in plead- 
 ing (/). And in these cases it is not always necessary to aver perform- 
 ance of the thing stipulated to be done (3), the plaintiff's agreement to 
 perform being a suf&cient consideration (w) ; unless the performance of 
 one act be the consideration of the performance of the other, "in which 
 case an averment of performance or readiness to perform, is in general 
 necessary, even in the case of mutual promises (w) ; as upon mutual 
 promises to marry and bargains to sell and accept goods (o)(4). 
 
 4thly. In the case of a Continuing consideration, the declaration gene- Statement 
 rally states, that in consideration that the defendant had become and was tinning 
 tenant to thfe plaintiff of certain land, &c. he undertook, during the con- considera- 
 tinuance of the tenancy, to use the premises, in a tenant like manner, ^c; *'""■ 
 and the declaration then avers the continuance of the tenancy and the 
 breach (p) ; or the declaration states the defendant's character andrela- 
 
 (A) 2B, &.P..116, 120. 565. (mj 1 Wils. 83; 5T. E. 409; 1 Ld. Baym. 
 
 (i) See the precedents of declaration in 264; 1 Salk. 171. 
 
 assumpsit against attornies. carriers, &c. for (n) 1 Salk. 112, 171; 1 Lord Kaym. 666; 6 
 
 negligence* in the second volume; and see 13 T: R. 570; 7 Id. 125; 1 Moore, 56. 
 
 East, 114, note, 2 New Rep. 258; and see 2 (o) 1 East, 203; 2 B. & P. 147; 1 Saund. 
 
 Bing. 464; M'Clel. & Y. 205, S. C. 320 e, n. 5. 
 
 (A;) See ante, 293, 294; 4 B. & C. 345; 6 (p) 5 T. E. 373, 3 East, 150; 1 Leon. 102; 
 
 D. & E. 438, S. C. Cro. Eliz. 94, 715; 2 Leon. 224; 2 Bla. Rep. 
 
 (0 3 T. R. 148, 635; Bla. Sep. 206; Peake, 842; 1 Marsh. 567; post, vol. ii. 
 C. N. P. 228; Hob. 146; Salk. 112; 5 East, 16. 
 
 (1) Where the performance of the act to be done on the part of the plaintiff is the considera- 
 tion of the act to be done by the defendant, the declaration states that if the plaintiff would do a 
 certain act, the defendant promised, and: then avers performance; and it is not necessary to al- 
 lege that the plaintiff promised. 10 Mass. 230, 237, 238^ 
 
 (2) Vide Porter v. Rose, 12 Johns. 209; Penn. Dell. & Md. Steam Nav. Co. v. Dandridge, 8 
 Gill. & Johns. 248; Livingston v. Rogers, 1 Gaines, 583; Whitall v- Morse, 6 Serg. & B. 368; 
 Tucker V. Wood, 12 Johns. 190; Brigs v. Tillotsonj 8 Johns. 235; Woods v. Rice, 4 Metcalf, 
 481 ; Morrison v. Ives, 4 Smedes & Marsh. 652. 
 
 (3) Vide Lent v. Fandelford, 10 Mass. 230; Russell b. Slade, 12 Conn. 463; Whitall v. 
 Morse, 6 Serg. & R. 358; Close v. Miller, 10 Johns. 90; Dey v. Box, 9 Wend. 129. 
 
 (4) Vide Livingston v. Rogers, 1 Gaines, 683; Tucker v. WoodSj 12 Johns. 190; Keep v. 
 Goodrich, Id. 397; Gould v. Banks, 8 Wend. 662. 
 
*298 OF THE DECLARATION. 
 
 IT. ITS tive duty, and his promise in consideration thereof to perform his doty. 
 PAKTs, &o. gjjj. jjj either of these cases of mere conHnuing- consideration, the promise 
 5thly. The ujugj; ngj; bg stated to have been more extensive than the law would pre- 
 action sume, or, at least, support ; and therefore, a promise that, in considera- 
 
 1. In as- tion that the defendant then was *tenant to the plaintiff^ he promised to 
 Bumpsit. repair, &c. the declaration will be demurrable (§'). 
 
 2. The con- 
 sideration, jjj ^|jg preceding observations we have considered the necessity of 
 
 showing that the consideration was legally sufiScient, and . the degree of 
 certainty and particularity required in stating it. Another important 
 point to be observed is, that the consideration, if expressly traversed or 
 denied by the plea, (but not otherwise, since the new pleading rules, H. 
 T. W. 4,) must be proved as stated ; or the plaintiff will fail at the trial 
 on the ground of variance (1), unless permitted to amend under 3 & 4 W. 
 rlances i'n ^» *^" ^^' ^' ^^" Instances of variance in stating matter of inducement 
 considera- have already been given (r). It is proposed now to notice the rules 
 tion. relative to variances in the statement of the consideration ; and the doc- 
 
 trine of variances in stating the promise or contract will be explained in 
 a subsequent part of the work. 
 
 Grreat accuracy is required in the statement of the consideration, whicSh 
 in an action of assumpsit forms the basis of the contract, and if any error 
 appear to have been made in describing it, the consequence will be, that 
 the whole contract is mis-described (2). Thus, in the instance before no- 
 ticed, of an action brought for wages, to be paid to the plaintiff, in con- 
 sideration that he would proceed on a particular voyage, it was held that 
 a variance in the description of the voyage was fatal, though laid under a 
 liidelicet (s). So, it would appear to be a general rule, that if the con- 
 sideration alleged be executory, and that which is proved be executed, 
 the mis-description is fatal ; executory and executed considerations being 
 in their nature materially distinct(3). But when in a declaration in as- 
 sumpsit the plaintiff alleged, that in consideration that he at the request 
 of the defendant, would consent to suspend proceedings against A., the de- 
 fendant promised, &c.; and the evidence was an agreement in these terms, 
 viz. " the plaintiff having, at my request consented to suspend proceedings, 
 against A., I do hereby, in consideration thereof, promise to pay £30 on 
 the 1st day of April," it was held, on motion in arrest of judgment, that 
 the consideration was sufficiently described : the fair construction of the 
 agreement being, that the consideration was that the plaintiff would sus- 
 
 (?) 1 Marsh. 567; 6 Taunt. 300,8. C; (r) idnie, 291. 
 poet, vol. ii. (s) 2 B. & P. 116; ante. 296. 
 
 (1) Where the declaration alleged an undertaking in consideration of a contract, entered into 
 by the plaintiff to build a ship, and the evidence was of a contract to finish a ship partly built, 
 it was held that the variance was fatal Smith v. Barker, 8 Day, 812. Where the contract 
 stated in a declaration was on a past consideration for the delivery of goods without mention 
 of the place of delivery, and in the alternative as to the time; and the contract proved was 
 an executory consideration , to deliver goods at a particular time and place mentioned, the vari- 
 ance was held fatal and the verdict set aside. Kobertson v. Lynch, 18 Johns. 451. 
 
 (2) Hendrick v. Seeley, 6 Conn. 176; Russell v. South Britain Society, 9 Conn. 608; Carley 
 V. Dean, 4 Conn. 259; Brooks v. Lowrie, 1 Nott & M'C. 342; Benden v. Manning, 2 N. Hamp. 
 289; DeForestu. Frary, 6 Cowen, 151; Lansing v. M'Eellip, 3 Caines, 286; Cassell v. Col- 
 lins, 2 Bibb, 429; Stone u. Knowlton, 8 Wendell, 374. 
 
 (3) Robertson v. Ljnchj 18 Johns. 451; Berkley v, Landon, 8 Conn. 404. 
 
IN ASSUMPSIT." 
 
 pend proceedings against A. until the first of April {t). So where a count iv. its 
 of a declaration in assumpsit against a carrier by water, alleged, that in '^^^'^^' *<>• 
 consideration that the plaintifi", at the request of the defendant had caused fluseof'^^ 
 to be shipped on board the *defendant's vessel a quantity of wheat to be action, 
 carried to a certain place, for freight to be therefor paid to the defend- 1. In as- 
 antj he undertook to carry the wheat safely, and deliver it for the plain- ^""psit- 
 tiff on a given day ; but it appeared that the defendant's undertaking to 2- The con- 
 carry was made before the whole of the wheat had been shipped on board ^' *'^*'""'- 
 his vessel ; it was held, that the count might be supported, although it 
 was objected that the consideration for the promise was executory ; on 
 the ground, that where an order is given to a carrier, antecedently to the 
 delivery of goods, who assents to deal with them, when delivered, in a 
 particular manner, a duty is imposed on him, on the receipt of the goods, 
 to, deal with them according to the order previously given ; and the law 
 implies a promise by him to perform such duty (m). 
 
 In accordance with the rule requiring the consideration to be stated 
 accurately, it is necessary that the whole of the consideration should in 
 general be stated ; and if any part of an entire consideration, or of a 
 consideration consisting of several things, be omitted, the plaintiff will 
 fail at the trial on the ground of variance (.^) (1). Thus, where in as- 
 sumpsit on the warranty of a horse, the declaration stated the transac- 
 tion as upon a sale of a single horse, and upon the evidence it appeared 
 that tioo horses had been sold at an entire price and with a joint warranty 
 the variance was considered fatal, the purchase of the two horses consti- 
 tuting the consideration for the warranty(y). The same rule renders it 
 also imperative that the consideration stated in the declaration should be 
 proved to the extent alleged ; and in general when the consideration prov- 
 ed falls short of that which is stated in the declaration as the foundation 
 for the promise, the variance will be equally fatal as when the proof ex- 
 ceeds the statement(2). In an action brought by husband and wife, and 
 another party, the declaration stated, that by an agreement between the 
 plaintiffs and the defendant, the plaintiffs agreed to let to the defendant 
 certain lands ; that the defendant became tenant to the plaintiffs, and 
 stated mutual promises by the plaintiffs and defendant to perform all things 
 contained in the agreement : the agreement given in evidence purported ' 
 
 to be made by an agent on behalf of the wife and the third plaintiff only, 
 without any mention of the husband ; but it appeared that the husband 
 had subsequently received rent from the tenant : the Court held, that in 
 order to support the consideration alleged, it was necessary to prove that 
 the husband was a joint contractor ab initio; that the evidence fell short 
 of this proof, since, before the receipt of rent by the husband, he was 
 clearly not bound by the agreement ; and that the variance was therefore " 
 fatal («). So also, where in an action *for the breach of warranty of a [ *300 ] 
 
 (t) 7 B. & C. 423. Littledale, J., observed consideration. See Com. Dig. Action, Assump- 
 
 in thu case that there was a continuing con- sit, B. 12; Cro. Eliz. 94. 
 sideration ; for the plaintiff not only had con- (u) 7 Moore, 283; 1 Bing. 34, S. C. 
 sented to suspend the proceedings, but also (x) 6 East, S68; 8 Id. 7; Cro. £Uz. 79; 
 
 that they should be suspended until the 1st Bui. N. P. 147; 12 East, \; \Z Id. 102. 
 April, and that therefore this might be alleged (i/) 1 Camp. 361. 
 in pleading either as an executed or executory (z) 6 B. & C. 909; 8 D. & B. 423; S. G. 
 
 (1) Ante, 297, note (2); Brooks v. Lowrie, 1 Nott & M'Cord, 342; Badger v, Burleigh, 13 
 N. Hamp. 507. 
 
 (2) Stone v. Enowlton, 3 Wendell, 874. 
 
300 
 
 IV. ns horse, the declaration stated the consideration of the warranty to be the 
 PABTs, &o. gg^jg ^ ^jjg plaintiff of the horse for the sum of £55, and it was proved 
 5thly. The t]j£^|- ^jjg plaintiff was to have the horse for that sum, but the defendant 
 action. ^'^^^ agreed to give £1 back, if the horse did not bring the plaintiff £4 
 1. In as- or £5 ; the variance was held fatal, the declaration importing that the 
 sumpsit. price was £55 absolutely, and the evidence showing that the price agreed 
 ^:^^^^°^- for was subject to a contingent reduction (a). 
 
 An exception, however, prevails in regard to considerations which are 
 in part good, and in part frivolous and insufiicient. We have before no- 
 ticed cases of this description, and have shown that when a consideration 
 of this nature is stated, the declaration will not be vitiated by the insuffi- 
 cient part, but that the promise will be referred to that part of the con- 
 sideration which is in law sufficient to support it (1). The insufficient 
 part is regarded as mere surplusage ; in a legal point of view it forms no 
 part whatever of the real consideration for the contract, and consequently 
 it becomes wholly unnecessary either to notice it in the declaration or to 
 prove it if stated (6). A variance, therefore, between the evidence and 
 the declaration as to such part of the consideration stated as is frivolous 
 and insufficient will be of no consequence. Thus, where in an action for 
 rent the declaration stated a demise of " a messuage, land, and premises, 
 with the appurtenances ;" and the evidence was of a demise of furniture 
 and utensils, as well as of real property, the variance was held to be im- 
 material, since in point of law the rent issued out of the real property 
 only, and not out of the furniture (c). 
 
 When there is no direct contradiction between the allegation and the 
 evidence, it is in general sufficient that. they agree in substance. Thus, 
 when the consideration of the retainer and employment of the defendant, 
 by the plaintiff is stated to be " certain reasonable reward," it seems that 
 it will not amount to a variance if it appear by the evidence that a spe- 
 cific sum was agreed upon (c?) (2). And where it was stated that the de- 
 fendant agreed to furnish certain goods " at fair and reasonable priceSj" 
 the averment was held sufficiently proved by showing a contract to furnish 
 such goods with a certain latitude as to price, viz. between two specified 
 sums (e). In these cases it was considered that the evidence substantial- 
 ly supported the allegations in the declarations, and was not inconsistent 
 with them. 
 How to When no consideration is stated in the declaration, or when that which 
 
 TOntaee of ^^ stated is clearly insufficient or illegal, the defendant may either demur 
 insufficient ov move in arrest of judgment, or support a writ of *error (/). When 
 statement the mode in which the consideration is stated is defective, informal, or 
 sideration Uncertain, the declaration will be bad upon special demurrer (g-) ; but af- 
 by demur- ter verdict a defective statement of the consideration will be aided (3), 
 rer, &o. provided, by a reasonable construction of the whole declaration, it suffi- 
 
 [ •801 ] 
 
 (a) 3 Bing. 472; see also 1 T. B. 447. The action was debt, but it is noticed as illas- 
 
 (4) Ring V. Roxbrough, 2 Cromp. & Jer. trative of the principle stated in the text. 
 
 418; 2 Tyr. 468; King v. Sears, 2 Crom. M. (d) 2 N. R.458. 
 
 &Ro3. 48; Cro. Jao, 127; Cro. Eliz. 149; (e) 6 Taunt. 108. 
 
 Com. Dig. Action, Assumpsit, B. 13; ante, (/) 7 T. R. 248; 4 B. & Cre». 345; 6 D. & 
 
 823, n. (t). B,. 488, S. C. 
 
 (c) 6 B. & C. 251; 9 D. & B. 245. 8, C. (g-) 4 East, 466; 13 Id. 102. 
 
 (1) See Loomis v. Newhall, 15 Pick. 159; Andrews v. Ives, 3 Conn. 368. 
 
 (2) Leland v. Douglass, 1 Wend. 490. 
 
 (8) Shaw V. Redmond, 11 Serg. & Rawie, 27. 
 
BODY OR BUBSTASrCE. — I. IN ASSUMPSIT. 301 
 
 ciently appears that there was a consideration capable of supporting the rr. us 
 promise (/t). paets, &o. 
 
 Where the consideration is untruly stated, or a part thereof is omitted, ^*^'y- '^^^ 
 or the whole cannot be proved, the objection can only be taken at the tri- action."^ 
 al as a ground of nonsuit (t), and since the new pleading rules Reg. Gen. i. j^ '^_ 
 Hil. Term, 4 W. 4, the defendant must by plea expressly deny the consid- sumpait, 
 eration or plead specially the want of adequate consideration ; and in ac- 
 tions on bills or notes, the plea must be very particular (Jc). 
 
 After showing the consideration, the declaration proceeds to state the 3. state- 
 defendant's promise or contract. In treating of the manner in which the ™^°' "^ 
 contract should be stated, we may consider, 1st, the general rules ofirocf""" 
 pleading with respect to the statement of the defendant's promise or con- 
 tract, so that it may appear to be valid on the face of the record; and 
 2dly, the doctrine of variances between the statement and the evidence. 
 
 1st. A declaration in assumpsit should in all cases show that a promise l- How the 
 has been made, either by expressly averring in the ancient form that the ''u°™ij1 
 defendant "undertook and faithfully ^rowjserf," or since Reg. Gen. Trin. stated, so 
 T. IW. 4, more concisely ^^ promised" omitting the other words (J), or that the 
 by other equivalent words (1). The adoption of the terms assumpsit declaration 
 super se S^c. has been in some cases considered absolutely necessary, and ^odonthe 
 a declaration which omitted them has been held bad even after judgment &ce of it. 
 (m) and is certainly bad on special demurrer (n) (2). But froni other 
 authorities it appears that a declaration in assumpsit, which does not con- 
 tain the word " promised" may nevertheless be good, provided it suffi- 
 ciently appear from the whole declaration that what is equivalent to a pro- 
 mise has taken place (3). Thus, in assumpsit on a bill of exchange, 
 where the declaration showed the defendant's liability on the bill as the 
 drawer, but omitted to add that he promised to pay, the Court refused to 
 arrest the judgment for this omission, and held that the count was, not- 
 withstanding such onission, *a count in assumpsit, because the drawing of [ *302 ] 
 the bill was a promise (o) ; and the same doctrine has been extended to 
 a promissory note (/>) (4). So it has been held on motion in arrest of 
 
 (A) 2 B, & P. 265; 1 N. R. 172; 4 East, stated in special assumpsit mast be specially 
 
 464; 2 Bing. 464; M'Clel. & Y. 205. denied by plea, or will be admitted; sed queere 
 
 (i) Cro. Eliz. 79. As to amendment of a post. 
 declaration on a written instrument at the tri- (I) See forms prescribed by Reg. Gen. Trin. 
 
 al, see post, 319, 320. T. 1 W. 4, as models, post, vol. ii. 
 
 (fe) Seethe rules and requisites of pZcns, posi, (m) Stra. 793; Lord Raym. 1516; 1 Sid. 
 
 chap. vii. ; Graham v. Pitman, 5Nev. & Man. 246; Con Dig. Action , Assumpsit, H, 3. 
 37; Kinder 5;.Smedley, Id. 138; so a\soiUegal (n) Harding ». Hibel,4 Tyr. 314. 
 
 itj q/' constrfcroiion must be specially pleaded, (o) Ld. Raym. 538, S. C; 1 Salt. 128; 
 
 Barnett v. Glossop, 3Dowl. 625; 1 Bing. N. C. Carth. 509. 
 
 683; 1 Hodges,35. According to Passenger;). (p) 1 Stra. 224; see 1 Taunt. 217, 218. 
 
 Brooks, 1 Bing. N. C. 587, the consideration 
 
 (1) Muldrows V. Tappan, 6 Missouri, 276; M'Nulty v. Collins, 7 ib. 69. 
 
 (2) Winston v. Francisco, 2 Wash. 187; Brunen v. Stout, Hardin, 225; Bendenc. Manning, 
 2 N. Hamp. 289 ; Caudlee v. Rossiter, 10 Wend. 487. 
 
 (3) Avery v. The Inhabitants of Tyringham, 3 Mass. 160 ; Bell u. Hobbs, Geo. Deois. 144. 
 But in Cook v. Sims, 2 Call, 39, it was held that a declaration reciting a written agreement and 
 alleging a breach without stating an express assumpsit, was ill. So the plaintiff must charge 
 the promise by the defendant positively and not_ by way of recital only; for if the declaration 
 be defective in this respect, it is a fetal error, and not cared -by verdict. Sexton v. Holmes, 3 
 Munf. 566. 
 
 (4) So, in assumpsit by the bearer of a note payable to bearer. Dole v. Weeks, 4 Mass. 451; 
 Vide 2 New Sep. 63, n. a. 
 
 Vol. I. 42 
 
802 - OP THE DECLARATION. 
 
 IV. IT3 judgment, that a declaration in assumpsit, which stated an agreement be- 
 PAETs &o. t^een the plaintiff and defendant, but omitted the mutual promises, was suf- 
 5thly. The ficient, ancJ the Court said an agreement was a promise {q). And in a re- 
 action. ^^^^ °^^^ when one count in a declaration stated that the plaintiff had de- 
 1. In as- livered certain property to the defendant to be taken care of by the de 
 Bumpsit. fendant for reward to him, and that in consideration thereof the defend^ 
 3. The ant " undertook . and agreed" to take care of the property and to re- 
 con^Mt " deliver it on request ; it was held, on motion in arrest of judgment, that 
 this was a count in assumpsit, and was therefore improperly joined with 
 one in tort (r). It should however be observed that in all these cases it 
 was considered that the declaration contained averments which were fully 
 tantamount to the allegation of an express promise, a circumstance which 
 is absolutely necessary in a declaration in assumpsit. No distinction ex- 
 ists in pleading between an implied promise, and an express one; it is true that 
 in evidence the law in many cases implies, from certain facts, that a prom- 
 ise has been made ; but in pleading, the supposed promise itself should be 
 alleged (1), and it is at least untechnical merely to state that which is on- 
 ly evidence of a promise (s). 
 
 It is essential that the contract should be stated with certainty (0 ; but 
 we have formerly seen that in a declaration a less degree of certainty is 
 required than in a plea ; and that what in the ordinary technical phrase is 
 called " certainty to a certain intent in general," will be sufficient (m); and 
 therefore a statement in a declaration, " For that whereas the defendant 
 on, &c." proniised, &c. is good on general demurrer, and perhaps even on 
 special demurrer (v'). 
 
 The declaration should specify the names of the parties by and to whom 
 the promise was made, but an omission in this respect will frequently be 
 aided, and especially after verdict ; and it is even said that when the name 
 of the party making the promise has been omitted, it may be intended 
 after verdict that the defendant made the promise (i<;) (2). And where 
 the declaration omits to state to whom the promise was made, it will be 
 intended that the promise was made to the party from whom the consid- 
 eration proceeded (x). But after verdict for the plaintiff, the judgment 
 was arrested, because the declaration showed only a consideration from a 
 third person, and not from the plaintiff, and only stated a promise to pay 
 [ *303 ] him without showing a promise to him {y'). It was *also necessary that 
 the promise should be averred with certainty of time and place, and is still 
 so as to time (z). It seldom occurs that the precise time laid in the dec- 
 
 (g) 2 N. R. 62. (w) Com. Dig. Action Assumpsit, H. 3 ; Lut, 
 
 (r) 6 B. & C. 268; 9 D. & R. 258, S. C. 283; but seeconirct, Cro. Eliz. 918; Noy, 50, 
 
 (») See 1 Lord Raym. 538, 539 ; 9 Mod. 131 ; S. C. 
 2 Hen. Bla. 536,n. a; ante, 225. (i) Cro. Car. 77; Noy, 83; Com. Dig. Ao- 
 
 (i) Com. Dig. Action, Assumpsit, H. 3. tion. Assumpsit, A. 5. 
 
 (m) Ante, 234, 256; Com. Dig. Action, As- (y) Price v. Easton, 4 Bar. & Adol. 488; 1 
 
 sumpsit, A. 4. Nev. & Man. 303, S. C. 
 
 (d) Id. ibid.; Ring v. Roxbrough, 2 Tyr. (z) See Ring v. Boxbrougb, tupra n. (x). 
 
 468; 2 Cromp. & J. 418, S. C. 
 
 (1) In assumpsit on an award, a promise must be alleged; but the defect is cured by verdict. 
 Kingsley v. Bill, 9 Mass. 198. It is a general rule in pleading in assumpiit, that it must be 
 stated that the defendant undertook and promised, &c. or something equivalent thereto, or the 
 declaration will be held bad, even after verdict and judgment. Candler v. Rosslter, 10 Wend, 
 487. 
 
 (2) Blackwell i>. Irvin, 4 Dana, 187. 
 
BODY OP SUBSTANCE. — I. IN ASSUMPSIT. «. 303 
 
 claration is material to be proved, but the promise being a material and 't. its 
 traversable allegation, the rules of pleading require, as we have previous- '■"™' *"■ 
 ly seen, that a time of making it should be specified (a) (X). The state- ^^^^y- f^^ 
 ment of the contract should in strictness be positive, and not by way of a action, 
 recital ; .but it will be considered suf&cient if the averment of the defend- i. in as- 
 ant's promise be preceded by " whereas" (6). And in setting out an sumpsit. 
 agreement the plaintiff may do so by a " testatum existit" (c). 3- The 
 
 All those parts of the contracts which are material for the purpose of ooXmI "* 
 enabling the Court to form a just idea of what the contract actually was, 
 or which are necessary for the purpose of furnishing the jury with a crite- 
 rion in the assessment of damages, should be stated with certainty and 
 precision (d) (2). In a case where the declaration stated that in consid- 
 eration that the plaintiff had sold to the defendant a certain horse of the 
 plaintiff, at and for a certain quantity of oil to be delivered within a cer- 
 tain time, which had elapsed before the commencement of the action, the 
 defendant promised to deliver the said oil to the plaintiff accordingly, the 
 Court at first entertained some doubt whether so uncertain a statement of 
 ■the contract was not bad in arrest of judgment, but finally held that i1^ 
 was sufiBicient after verdict (e). In a subsequent case, where, (after sta- 
 ting a former agreement for the sale of goods by the defendant to the plain- 
 tiff " at a certain rate or price per pound, to be paid in a manner then 
 stipulated between them, the goods to be delivered by the defendants to 
 the plaintiffs at a time which had elapsed before making the promise there- 
 inafter mentioned, but which goods had not been delivered,") and the dec- 
 laration proceeded to state a new contract, that in consideration that the 
 plaintiff would still receive the pay for the goods " at the rate or price 
 and in manner aforesaid" the defendant promised to deliver the same, 
 " within such reasonable time as aforesaid ;" this mode of statement was 
 held too general, and bad upon special demurrer (/). If, however, the 
 uncertainty of the words of the promise be afterwards supplied and ren- 
 dered certain by an averment, it will be sufficient ; as in the ordinary in- 
 stance of a promise to pay the plaintiff as much as he should deserve, with 
 a subsequent averment that he deserved so much (§■). 
 
 When the contract is in writing, it is not necessary to state that cir- 
 cumstance in a declaration (3). Ajid even in cases where, by the statute 
 of frauds, the promise is rendered ineffectual, unless there be a memoratU- 
 dum *of its terms in writing, it is not necessary in a declaration, at law (A), [ *304 J 
 or a bill of equity (i), to show that the requisition of the statute has been 
 
 (0) See anU, 257, 260, 892, note (a:). (?) Cro. EU«. 149; Com. Dig. Assumpsit. 
 (6) Hardr. 1 Com. Dig. Assumpsit, H. 3; H. 3. 
 
 anU, 302, note (a). (A) 1 Saund. 276 a; Bao. Ab. Stat. L. 3; 
 
 (c) This form of setting out an agreement ante, 254. 
 
 or deed is considered sufficient in a declaration, (i) 1 Sim. & Stu. 543 ; and see 7 Bing. 529, 
 
 although in a plea it might be otherwise, ante, as to stating the acceptance of a bill to have 
 
 233; 1 Saund. 274, n. 1; 1 Lev. 75. been in writing since the stit. 1 & 2 (J. 4, c. 
 
 (d) See 2 B. & P. 267; 13 East, 115, 116. 78, requiring the acceptance of an inland bill 
 
 (e) 2 B. & P. 265. to be in writing. 
 (/) 13 East, 102; and see 4 B. & Aid. 268. 
 
 (1) See Stephens v. Graham, 8 Serg. & R. 405; Church v. Feterow, 2 Pennsylv. 301. 
 
 (2) See Favor *. Philbrick, 7 N. Hamp. 326. But it is not necessary to set forth the facts 
 not bearing on the plaintiff's case, or the precise words. Wilde, J. in Stearns v. Barret, 1 Pick. 
 443; Couch v. IngersoU, 2 Pick 292. 
 
 (3) Wallis V. Frazier, 2 Nott & M. 280; Nelson v. Dubois, 13 Johns. 175; Baker v. Jame>- 
 SOB, 2 J. J. Marsh, 647. 
 
304 be *HE DECLARATION. 
 
 IV. IIS complied with in this respect (j) (1). The nature of the promise still 
 pABTs, &o. pemains the same in the eye of the law, which does not admit of any dis- 
 5thly. The tinction between verbal and written agreements, except where the latter 
 action." ^^^ under seal : and it should seem that the provisions <pf the statute, only 
 
 1. inas- affect the rules of evidence and not those of pleading- (k'). However, 
 Bumpsit. since the Eeg. Gen Hil. T. 4 W. 4, requiring a special plea, it might save 
 8. The time if, when the fact, a declaration on a guaranty stated that the con- 
 promise or tract -^as in writing, and set the same out verbatim. 
 
 ^ ' ' We shall examine hereafter, in treating of the degree of accuracy re- 
 quired in stating the contracts, how much of the contract it is necessary to 
 set out in the declaration, in order to avoid a variance between the plead- 
 ing and the evidence of the trial (/). It should, however, be here observ- 
 ed that it is suflBcient to state those parts of the contract where a breach 
 is complained of, or in other words to show so much of the terms benefi- 
 cial to the plaintiff in a contract, as constitutes the point for the failure 
 of which he sues ; and that it is not necessary or proper to set out in the 
 declaration other parts not qualifying or varying in any respect the mate- 
 rial parts above mentioned (m). The statement of additional matter 
 would be needless prolixity, which, though it does not vitiate the declara- 
 tion, is much censured by the Courts when carried to any excess (m). And 
 it has been justly observed that the perfection of pleading consists In com- 
 bining brevity with the requisite certainty and precision (o). Thus in de- 
 claring in covenant upon a lease for non- payment of rent, it is advisable not 
 to set out the premises at length as in the deed, but to state that the plain- 
 tiff demised to the defendant, " certain premises particularly mentioned 
 and described in the said indenture except as therein is excepted ;" to 
 hold the sanie for a certain term or terms, (showing the extent of it, or 
 that it is still unexpired,) yielding the rent payable on, &c. ; and then to 
 state the covenant for payment of the rent, the entry of the defendant, 
 and the breach in not paying the rent due. Or if the action be for the 
 breach of any other covenants, the plaintiff should in such case state the 
 parts of the indenture referring to the rent, in the like concise way in 
 which he should state the other parts of the indenture not connopted with 
 the rent, in an action for non-payment of rent, viz. " at a certain rent, 
 payable by the defendant to the plaintiff, as in the said indenture is men- 
 [ *305 ] tioned," and then set forth only the particular covenants which he *al- 
 leges to have been broken (p). This mode of declaring, it is ojavious, is 
 equally applicable and advisable where the lease is not under seal, but 
 by a written agreement only ; and also in other actions upon, long writ- 
 ten agreements, embracing a variety of provisions (g'). 
 
 2. Ofvari- jx jg q, general rule, that the contract must be stated correctly, and if 
 
 Alices 06— 
 
 tween the 
 
 statement (y ) i Saund. 276 a; B&a. Ab. Stat. L. 3; (m) 4 Taunt. 286; 18 East, 18. 
 
 and the ante, 264. (n) Cowp. 666 to 726, to 727; 1 BI. R. 270; 
 
 evidence. (fc) gee 7 T. E. 351, note. It has, however, Dougl. 667; see as to surplusage, ante, 268, 
 
 been held, that a plea must show that the stat- 264. 
 
 ute has been satisfied. Lord Raym. 450; but (o) Stephen on Pleading, 417. 
 
 see 2 B. & B. 362; Steph. on Pleading, 367, (p) See 1 Wms. Saund. 283, note 2; C owp. 
 
 418, 419, note, 2d ed. 665; Dougl. 667. 
 
 (0 Post, 306 to 308. (g) And see 6 East, 563. 
 
 (1) Vide Nelson v. Dubois, 18 Johns. 177; Anonymous, 2 Salli. 519; Williams w. Leper, Burr. 
 1890; 1 Esp. Dig. 168; Miller ». Drake, 1 Caines, 45; Elting v. Vauderlyn, 4 Johns. 287; 
 Cleaves v. Foss, 4 Oreenl. 1; Wallis v. Frazier, 2 Nott & M'C. 180; Bliok v. Brigg, 6 Alabama, 
 687; Brown v. Barnes, 6 Alabama, 694. 
 
BODY OB SUBSTANCla— I. IN ASSUMPSIT. ^ 305 
 
 the emdence differ from the statement, the whole foundation of the action it^- us 
 fails, because the contract is entire in its nature, and must be proved as ^■*''"'^' *"' 
 laid(r) (1). In this respect there is a material distinction between the ^''''y- f^^ 
 statement of torts and of contracts, the 'former being divisible in their acdon 
 nature, and the proof of part of the tort or injury being, iQ general, suffi- i. jji as- 
 cient to support the declaration (s). ' sumpsiti 
 
 It is laid down as a principle on this subject, that a contract or written Contract 
 instrument should be stated according to its legal effect (t) (2). This rule *» ""^ ^tat- 
 is of very extensive operation, and applies not only to the statement of ^n/toks' 
 contracts in an action of assumpsit, but also to the statement by either legal effect 
 party of contracts and obligations of every description, whether verbal, ^'"l intent 
 written, or specialty, in any form of action. The party is not compelled "hoCh va- 
 to follow the precise form of words in which the contract was made ; it ryinffnim 
 suf&ces if he state its true legal effect and operation (m) (3) and it has words, 
 been observed that a deed may be declared on, without using a word 
 which was contained therein, except the names of the parties and the 
 sums (x). Indeed, in some cases it has been held proper, and indeed ab'- 
 solutely necessary, to depart from the terms of the contract ; and a party 
 has been defeated on the ground of variance, when he has used the pre- 
 cise words of the contract, but mis-stated its legal operation (?/) ; and 
 where a written contract stated that a bill should be given for £14 19s. 
 whereas it was really intended to be for £13 19s. and was so stated in 
 the declaration, it was held that this was proper and no variance (2:). 
 
 Thus, when a conveyance from a joint-tenant to his companion is plead- 
 ed, and the expressions used in the conveyance are, " gives, grants, &c." 
 it has been held improper to follow the terms of the deed : for although it 
 purports to be a grant, yet its legal effect and operation is not that of a 
 grant but a release ; and it should therefore be pleaded not that hQ granted 
 
 (r) 1 T. R. 21,0; 3 Id. 646, per Buller, J. (a;) 1 Marsh, 216, 217; see instances, posii 
 
 (s) 2B. & Aid. 864; see post. {y) 4 Mod. 150, 151; see 2 Saundi 97 b. 
 
 (<) Com. Dig. Pleader, C. 37; 2 Saund. 97, n. 2; 2 B & Aid. 66; 1 Chit. Rep. 66, 67, per 
 
 n. 2; BaC. Ab. Pleas, 1. 7; Stephen, 2d edit. Bajley, J. and Holroyd, J., Stephen onPlead- 
 
 482; and see per Tindal, C. J., in Bushell v. ing, 2d edit. 432. 
 Beaven, 1 Bing. N. C. 120, S. P. («) Rose v. Sims, 1 Bar. & Aid. 522; n. b; 
 
 («) As to setting out a deed on oyer, see 
 post. 
 
 (1) Obertr. Whitehead, 6 Halst.t294; Wheelright u. Moore, 1 Hall, 201. Vide Snell «. 
 Moses, 1 Johns. 105; Allaire v'. Ouland, 2 Johns. Cas. 65; terry to. Aaron, 1 Johns. 133; Ante, 
 232, and n. 19, ibid; Phillip's Ev. Dunl. Ed. 160, 161, and n. a. ibid; Pool v. Court, 4 Taunt 
 700. A contract in the alternative must be stated in the declaration according to the terms of 
 it. Thus, to transport 15 or 20 tons of marble from one place to another, if stated as an ab- 
 solute contract, the varianije will be fatal. Stone v. Knowlton, 3 Wend. 374. So, to allege a 
 consideration for the promise different from the true consideration, not supported by the proof, 
 ■will be cause of nonsuit, ib. New Hamp. Mut. Fire Ins. Co. ■o. Hunt, 10 Foster, (N. H.) 219. 
 
 (2) Andrews v. Williams, 11 Conn. 326; Morris v. Fort, 2 M'Cord, 398. Vide Close v. Mil- 
 ler, 10 Johns. 90; Keyes «. Dearborn, 12 N. Hamp. 52; Fish 1). Brown, 17 Conn. 341. Adams 
 V. Davis, 16 Alabama, 748. 
 
 (8) Lent v. Padleford, 10 Mass. 230; Hopkins v. Young, 11 Mass. 307; Walsh v. Gilmer, 3 
 Har. & Johns. 407; Grannis v. Clark, 8 Cowen, 86; Ridgley v. Riggs, 4 Har. & Johns. 36S; 
 Silver v. Kendrick, 2 N. Hamp. 160; Thomas v. Van Ness, 4 Wend. 549; Hastings v. Lovering, 
 2 Pick. 222; Osborne v. Lawrence, 9 Wend. 135; Crocker v. Whitney, 10 Mass. 320; Churchill 
 V. Merchants Bank, 19 Pick. 532; Dorr u. Fenno, 12 Pick. 521. In declaring upon. a special 
 contract, it must be set out in its very terms , or according to its legal effect. Keyes v. Dear- 
 born, 12 N. Hamp. 52; Pye v. Rutter, 7 Missouri, 548; Diokerson v. Morrison, 5 Pike, 316; 
 White V. Guest, 6 Blackf, 228; Moore v. Platte County, 8 Missouri, 467; Maxfield v. Scott, 17 
 Vermont, 634. It is not necessary that the instrument should be described by its right name, 
 if a copy thereof be given and made a part of the pleadings. English v. Helms, 4 Texas, 228; 
 Salinas v. Wright, 11 Texas, 672; Smith v. Webb, 15 Illinois, 105. 
 
806* OP THE DECLABATION. 
 
 IV. IT3 but that lie »*e/edise£^ (a). So, if a tenant for life g-rawi his estate to hitn 
 tAEis, &e. jjj reversion, this is in effect a surrender, and *it has been held that it 
 5thiy. The J^^g(; ^g pleaded as such, and not as a grant (6). So, if a deed be in the 
 action. words, " gives and grants," and operates as a bargain and sale, it must 
 1. In as- be pleaded as the latter (c). And it is said that if on a promise to A. 
 sumpsit. to pay B. a sum of money, ttie action be brought by the latter, it is proper 
 8. The to state that the promise was made to B. (rf). 
 
 contrM!t°'^ It frequently becomes an important question, when the party is about to 
 set out some written instrument, whether it will be advisable to follow the 
 terms of the instrument, or to give merely its substance. ' The latter, if 
 given correctly, will be a sufl&cient compliance with the rule, which only 
 requires the legal effect to be stated (1) ; but there is this danger, that, pos- 
 sibly the party or the pleader, may mistake the legal effect ; while, on 
 the other hand, if he profess to give the terms of the deed, he becomes 
 more liable to misrecitals and literal mistakes. We have already noticed 
 some cases in which it has been held necessary to depart from the terms of 
 the instrument ; and there are other cases in which it has been laid down 
 that a party must, at his peril, always state an instrument as he intends to 
 use it ; and that where a party in pleading sets forth a title by conveyance, 
 in which are the words " give, grant, release, confirm, bargain, sell," &c. 
 he must express for which of them he will use it (e). And it was agreed 
 in one case, that setting forth the special matter, which showed that a 
 deed did operate according to its terms, and leaving the determination of 
 law to the Court, was impertinent and idle. And although three of the 
 judges held in that case that the party having set forth the words of the 
 deed, it was sufficient, the fourth judge differed and held that the party 
 was bound to state the legal effect ; and the decision was afterwards re- 
 versed upon this ground on a writ of error (/). From some later 
 cases, however, it rather appears that the above doctrine should be received 
 with some qualification ; and that the true rule in setting out a. written con- 
 tract may be, that where the party professes to give the legal effect and 
 operation of the deed, and the legal operation is different from that 
 which appears by his statement, a fatal variance will occur, although he 
 adopts the exact expression contained in the instrument ; but that where 
 he does not profess to give the substance and legal effect only, but to 
 state the very words of the deed, the Court will then construe the deed 
 for him. Thus, when it was stated that A. was entitled to the equity of 
 redemption, and that, subject thereto, B. was seized in fee, and that they, 
 by lease and release, granted, bargained, &c. the premises, accepted and 
 always reserved to A. a right of hunting, &c.; it was held, that as A. 
 [ *307 ] had no legal interest, there could be no exception or *reservation to him, 
 and that the statement was therefore bad (§•). And the Court said that 
 the party had purported to set out the deed according to its legal opera- 
 tion, and had mis-stated such operation ; that if he had wished the Court 
 to construe the deed for him, he should have set it out in hmc verba, or at 
 least so much as he meant to rely on, and that the Court could form no 
 
 (o) 4 Mod. 150; 8 Lev. 291. (e) See 1 Vent. 109; Co. Lit. 801 b; Carth. 
 
 (A) 4 Mod. 151. 308; 8 Lev. 291; 2 Saund. 97 b. 
 
 (e) Cro. Eliz. 163; 1 LordRaymi 403, 404; (/) 8 Lev. 241; 4 Mod. 149; 2 Saund. 97 b. 
 
 2 Saund. 97 b. u. 2. (g) 8 B. & Aid. 66. 
 (d) 1 B. & P. 102, per Eyre, C. J., ante, 5. 
 
 (1) Vid« Uatv. Padle&rd, 10 Mass. 280. 
 
BODY OB SUBSTANCE. — IN ASSUMPSIT. " 307 
 
 judgment what operation it might have, unless they saw the very words i^- ™ 
 of the- deed (/i). And in a subsequent case, when it was objected that ''^"''*' °' 
 the legal operation of a deed was different from the statement in the dec- ^'„'^"oJ''® 
 laration, it was held that there could be no variance, since the declaration action, 
 did not affect to state the legal effect of the deed, but merely stated that i. in as- 
 by a certain deed " it was witnessed, &c.," following the words of the sumpsit. 
 deed (i). 3. The 
 
 If these oases may be considered as establishing the position, that if, gon^j^t"" 
 in a doubtful case, a party set out the words of a deed or written instru- 
 ment, as being those contained in the document itself, the Court will put the 
 proper construction upon it, it seems to be advisable to adopt this course, 
 (namely, to profess to set forth the instrument, and to give its precise 
 words,) when there exists any uncertainty as to the exact legal effect and 
 construction of them ; especially, as by the late statutes, which will be 
 particularly noticed hereafter (A;), certain variances in setting out con- 
 tracts are "amendable at the trial. 
 
 A misdescription of the contract with regard to the parties thereto, and Misde- 
 ivith whom it was made, will also in general be fatal as a variance at the of^Kar- 
 trial (1). Thus, where the plaintiff was a surviving partner, and sued ties to the" 
 upon a contract made with himself and his deceased partner, but without contract, 
 stating that he was a surviving partner, so that the contract appeared 
 from the declaraticn to have been made with himself alone, he was non- 
 suited for the variance ; and the Court held the non-suit right (/). Upon 
 the same principle, where a contract for the sale of goods was stated to 
 be made with two persons, and it appeared in evidence that it was made 
 with those two and another, it was ruled to be a fatal variance, though 
 the declaration stated correctly the quantity of goods which the two were 
 to have (m). And where the plaintiff set forth in his declaration a con- 
 tract for the sale of goods, but mis-stated the party to whom the goods 
 were to be delivered, the variance was considered fatal («). Here we 
 may again allude to the instance of a contract made between A.'s wife 
 and B. of the one part, and C. of the other part, being described as 
 a *contract made between A. and his wife and B. and C. (o). But [ *308 ] 
 a lease between A. and his wife of the one part, and B. of the 
 other part, may be set out as a deed between A. and B., such being its 
 legal effect (i? ). So, if a bond be given to husband and wife administra- 
 
 (ft) Per Abbott, C. J. and Bayley, J., 3 B. mis-statement of the condition of a bond, as 
 
 & Aid. 70. to the parties by whom the money was to be 
 
 (i) 1 B. & C. 358; 8 D. & B. 662, S. C- paid, although the bond was joint and seve- 
 
 (fe) Post, 318, 320; 9 G«o. 4, C. 15; see 3 ral, &c.; id. 110; 3 M. & P. 339, S. C. 
 & 4 W. 4, c. 42, s. 23, more extensive.. (m) 5 Esp. 33, 169. 
 
 (0 4 B. & Aid. 274. So, a mistake in an (») 4 T. R. 687. 
 avowry, as to the parties of whom plaintiff (o) Ante, 299. 
 held as tenant, is fatal, 6 Bing. 104. So is a (p) 4 Moore, 66. 
 
 (1) Shepard v. Palmer, 6 Conn. 95; Bunnel v. Taintor, 6 Conn. 273. 
 
 The words " and company." or "survivor," following a plaintiff's name, may be rejected as 
 surplusage, if the declaration made out a cause of action in the plaintiff himself. Robinson v. 
 Cornwell, 2 Bailey, 137. See M'Cool v, M'Clusey, Harper, 486. 
 
 In an action on a promissory note against the maker, the declaration alleged that the note 
 was made by " John C." and the note offered in evidence was signed by " J. C." it was held 
 that this was not a variance. Cantly t>. Hopkins, 6 Stewart & Port. 58 ; Robertson v. Banlis, 
 1 Smedes & Marsh. 666; King v. Clark, 7 Missouri, 259; Wood v. Hancock, 4 Humph. 465. 
 The use of the name " Josiah," in the petition, and of " Josier," in the note recited, is not va- 
 riance. Schooler v. Asherst, 1 Litt 216. 
 
 A bond signed '< Filip T." will support a declaration in the name ',," Philip T." Taylor v, 
 Rogers, Minor, 197. See Se Eentland v. Somerg, 2 Root, 437; franklin v. Tallmadge, 6 
 Johns. 84. 
 
308 OP THE DECLABATION. 
 
 IV. ITS trix, the husband alone may declare on it, as on a bond made to himself 
 PABT3, &o. ^q-^ jf a contract, whether verbal or ■written, or a billof exchange^&c. 
 6thly. The be made by two persons, and it be stated that it was made by one only, 
 action? ^^^- *^^ defendant, he can only plead in abatement, and cannot treat the 
 1. In as- omission as a material variance at the trial on the general issue (r). 
 sumpsit. Again, where there are two or more distinct special contracts, it will 
 3. The be a fatal misdescription to blend them together and treat them as one 
 promige or contract; thus, where different lots were sold, at an auction for different 
 sums, the contracts were deemed separate both in law and in fact, and the 
 plaintiff having, in assumpsit for refusing to comply witFi the conditions 
 of sale, consolidated the two contracts, and declared upon them as one 
 agreement, he. was nonsuited (s). Where, however, an agreement has 
 been made between two parties, and by a subsequent contract between 
 them the terms of the former agreement have been modified and altered, 
 the plaintiff may declare upon the contract as it stands altered by the 
 subsequent arrangement, without noticing the original terms which have 
 been dispensed with (<). 
 Mis-state- The plaintiff being bound to state his contract correctly, it follows that 
 promise in ^ mis-statement of the quality or nature of the defendant's promise, and "his 
 the alter- Consequent liability, will be a fatal error, and will, if the defendant's plea 
 native, &o. put the fact in issue, subject the plaintiff to a nonsuit (1). Thiis, when a 
 contract is made in the alternative, as to deliver one or other of two specified 
 quantities of goods at a particular time, it must be stated in the declaration 
 according to the original terms, and stated as an absolute contract, it will 
 be a fatal variance, notwithstanding the party who, under the agreement, 
 was to have the option of deciding on the particular -quantity may have de- 
 termined his option ; for the mode of executing the contract could not 
 change the original contract itself (?/) (2). And on the other hand, when 
 the contract is absolute, and it is stated in the declaration as an alterna- 
 tive contract, the variance will be equally serious ; thus, where the plaintiff 
 declared on a contract to deliver soil or breeze, and the evidence was of a 
 contract to deliver soil only, and soil and breeze appeared to be different 
 things, it was held the plaintiff could not recover {x). So where the con- 
 tract is conditional it will be a fatal misdescription to state it as an abso- 
 lute one (3). Thus, when a party accepted a bill of exchange, thereby 
 [ *309 ] engaging to pay it as soon as a particular event 'occurred, and this was 
 stated in the declaration as an absolute acceptance, the variance was held 
 fatal (y). And upon the same principle, it should seem that in cases 
 
 (5) 4'r. R. 616. (u) 2 East 2; see also 3 T. R. 581; 2 Bos. 
 
 (r) 1 B. & Aid. 224; ante, 45, 46; see & Pul. 116; and see per Lord EUeuborough, 
 
 ante, 13. 8 East, 8. 
 
 (s) 1 Stark. 426; see 2 Taunt. 38. (a:) 1 B. & P. 351; 5 Esp. 289, S. C. 
 
 (0 See 1 B. & C. 18; 1 Esp. 53; 1 Stark. (y) 4 Camp. 176. 
 R. 336. 
 
 (1) Conolly V. Cottle, Breese, 286; Mulford v. Bowen, 4 Halst. 815; Davis ti. Campbell, 3 
 Stew. 319; Rogers v. Estes, Litt. Sel. Ca. 2; Bell v. Scott, 3 Miss. 212; Palmer v. M'Ginnis, 
 Hardw. 505; Adams v. Brown, 4 Litt. 7. But if an objection on account of a variance between 
 the declaration and the proof be not taken at the trial it will be considered as waived M'Konihe 
 V. Savoyer, 12 N. Hamp. 396. 
 
 (2) Curley w. Dean, 4 Conn. 266. Per Hosmer, C. J., Stone ». Knowlton, 3 Wend. 374; 
 Russell V. South Britain So., 9 Conn. 508; Williams v. Kinnard, Minor, 196; Trask v. Duval, 
 4 Wash. C. C. 97. The payee of a note, payable to himself or order, declared on it as payable 
 to himself, and this was held not a material variance. Fay •». Goulding, 10 Pick. 122. 
 
 (3) A conditional contract must not be set forth as an absolute one, though the condition 
 has been performed. Stanwood v. JScovel, 4 Pick. 422; Sewer v. Winters, 7 Cowen, 263 ; 
 Couch V. Hooper, 2 Leigh, 557 ; Whitaker v. Smith, 4 Pick. 83; Wait ». Morris, 6 Wend. 304. 
 
BODY OB SUBSTANCE. — I. IN ASSUMPSIT, 809 
 
 of debts which have been barred by the statute of limitations, if the ^- «» 
 plaintiff rely on a subsequent promise, to take the case out of the statute, ^^"'^^ "• 
 and such promise were qualified or conditional, as to pay when the de- ^'^'y- "^^^ 
 fendant is able, &c., the plaintiff should declare upon such subsequent pro- action, 
 mise according to the terms in which it was made, and not upon the orig- 1. in as- 
 inal promise («) (1). In actions upon bills of exchange and promissory sumpsit. 
 notes many cases of variances have arisen in consequence of the accept- 3. The 
 ance or promise being stated to be general and absolute, when in fact it ^^f'^^j. *" 
 was qualified, the bill or note having been made payable at a particular 
 place. With respect to bills of exchange, an acceptance payable at a partic- 
 ular place is not now a qualified acceptance, unless the payment be expressly 
 restricted to that place only and not elsewhere (a) : but in cases where 
 it is so restricted and also in all cases of promissory notes made payable 
 in the body of the note at a particular place, it will be a variance to state 
 a qualified contract of this description as an absolute one (6). And on 
 the other hand, where the contract is absolute, and is described in the 
 declaration as conditional or qualified, the variance will be equally fatal 
 as where in declaring on a promissory note the plaintiff alleged that it 
 was thereby made payable at a particular place, and it appeared, on pro- 
 duction of the note, that there was no such restriction contained in the 
 body of the note, but merely in a memorandum at the foot of it, it was 
 held that this was a general and not a qualified promise, and that conse- 
 quently there was a material mis-description (c) (2). If an instrument 
 be so ambiguous in its terms that it may be regarded with reason either 
 as a bill of exchange or a promissory note, the plaintiff has tjie election to 
 declare upon it either as one or the other of those instruments, at least as 
 against the maker (d). 
 
 If the defendant's promise or engagement, whether it be verbal, in Excep- 
 writing, or under seal, embody or contain, as a part of it, an exception or ^^i°g, 
 proviso which qualifies his liability, or in certain instances renders him when qnal- 
 altogether irresponsible, so that he was not in law absolutely bound, the ^jngli*- 
 declaration must notice the exception or proviso, or there will be a fatal mis- ^' 
 statement. Thus, where the detjlaration stated that the defendant had 
 undertaken to carry and deliver goods safely, and the contract proved 
 was to carry and deliver them safely, fire and robbery excepted, it *wa3 [ *310 ] 
 held that there was a fatal variance (e) (3). 
 
 And the same will be the case where a like absolute contract is stated, 
 
 (z) 6 B. & C. 603, 609; 9 D. & R. 549, S, (e) 2 B. & C. 20; 3 D. & K. 211, S. C. In- 
 
 C; 1 B. & C. 248; 2 D. & R. 363, S. C; 7 stance of variance in action on a policy, in not 
 
 Ping. 163, ace. settiflg out the rules of the society, &c. ; 11 
 
 (a) Stat. 1 & 2Geo. 4, C.98, s. 1. Ifabill Moore, 86; 3 Bing. 315,8. C. Where the reg- 
 
 be drawn payable at a particular place, and ulations of an association of ship-owners com- 
 
 aocepted generally, this is not a qualified ao- bined for the mutual insurance of each other's 
 
 ceptance, 11 Moore, 511; 3 Bing. 611, S. C. ships were indorsed on the back of the policy, 
 
 (J) 3 Campb. 247, 463; 4 /d. 200; 14 East, and declared to form part of the policy 
 
 500. to which the ship-owners were subscribers, it 
 
 (c) 4 M. & Sel. 505; and see Jelf v. Oriel, was held necessary in aa action for a loss un- 
 4 Car. & P. 22. der the policy to set out the regulations as well 
 
 (d) 6 B. & C. 433; 9 D. & R. 492, S. C. as the policy, 3 Bing. 315. 
 
 (1) See Lonsdale v. Brown, 4 Wash. C. C. 148; Betton v. Cutts, 11 N. Hamp. 170; Chitty, 
 Contr. (7th Am. ed.) 821, in note. i 
 
 (2) The words "value received," in a promissoiy note, are words of description, andif omitr 
 ted in the declaration, the variance will be fatal. Saxon v. Johnson, 10 Johns, 418; Rossiter 
 V. Marsh, 4 Conn. 196. 
 
 (3) See Ferguson v. Cappean, Hard. J. 394; Stanwood «. Scoyel, 4 Pick. 422; Bridge v, AoBt 
 tin, 4 Mass. 116; Rail Road Co. v Robeson, 5 Iredell, 391. 
 
 You I. 43 
 
310 
 
 OF THE DECLARATION. 
 
 IV. ITS 
 
 PARIS, &C. 
 
 5thly. The 
 cause of 
 action. 
 1. In as- 
 sumpsit. 
 
 Instances 
 of a 7nis- 
 ttatement 
 of part of 
 the con- 
 tract. 
 
 [*311] 
 
 and it is proved to be one of the terms of the contract, that the carrier is 
 not to be liable to amj extent upon goods above a certain ^alue unless insur- 
 ed (/). Where the plaintiff averred in his declaration generally, that the 
 defendant had warranted a horse to be sound, and the proof was, that the 
 latter had warranted the horse to be sound every where except a kick in the 
 leg, the Court held this to be a qualified and not a general warranty, and that 
 consequently there was a fatal mistake (g) (1). So also, in cases of con- 
 tract between landlord and tenant, if the declaration set out a general agree- 
 ment or covenant to repair, and omit to state an exception as to case of 
 fire and other casualities, the variance will be fatal (A). 'And where the 
 declaration averred that the defendant had become tenant to the plaintiff, 
 and in consideration thereof had promised to use the land in a husband-like 
 manner, and the evidence was that he had agreed to use the land in a hus- 
 band-like manner, to be kept constantly in grass, it was held that the omis- 
 sion of this stipulation was a variance ; for though in most cases the keep- 
 ing of the land in grass might be farming it in a husband-like manner, still 
 there might be some cases in which it would not be so ; it was therefore a 
 qualification of the previous stipulation, and ought to have been stated in 
 the declaration as part of the description of the contract (^i). So, if. a lease 
 contain a covenant to repair "except in case of fire," the covenant must 
 not be described as an absolute covenant (A). And in covenant on a lease 
 for non-payment of rent, the reddendum must not be described as absolute, 
 if it be yielding, &c. except as hereinafter is excepted" (Z). Where, 
 however, the proviso in a written instrument is distinct from and not even 
 referred to by the clause on which the debt is charged, it is considered 
 matter of defeasance, &c. which ought to come from the other side, and 
 then it need not be set forth by the plaintiff (ot). 
 
 There are a great variety of instances of variances in the statement of 
 some particular part or term of the contract. Errors of this description 
 are, as we have already observed, in general as fatal to the, plaintiff 's case, 
 as where he has erred in stating the whole contract, or the parties with 
 whom it was made. It may be useful to enumerate some of the cases which 
 have arisen upon this subject (2). 
 
 *The mis-statement of the date of a written instrument is a fatal vairi- 
 ance, if the declaration expressly describe it as " bearing date" upon a cer- 
 
 (/) Per Abbott, C. J., 8 D. & R.212; and 
 see 6 East 569; post, 316. 
 
 {g) Jones V. Cowley, 4 B. & C. 446 ; 6 Dowl. 
 & Ryl. 688; see Heming v. Parry, 6 Car. & P. 
 580; Alderson, B. said, that that case-, al- 
 though correctly decided, was a disgrace to 
 the English law. 
 
 (ft) 4 Campb. 20; 2 B. & B. 295; 6 Moore, 
 
 161, S. C. 
 
 (i) 5 B. & C. 909; 8 D. & R. 643, S. C. 
 
 (k) 4 Campb. 20, 21; 5 Moore, 164; 2 B. 
 & B. 395, S. C. 
 
 (I) 6 B. & C. 430; 9 D. & R. 597, S. C; 
 ante, 223. 
 
 (m) Ante,22S. 
 
 (1) If in an action on a promissory note, the plaintiff unnecessarily specifies wherein the value 
 recciueii, consisted, he must prove it as laid. Jerome i;. Whitney , 7 John. 851. In an indict- 
 ment for stopping the mail, a contract with the postmaster general to transport the mail, was al- 
 leged, and it was held that the contract must be proved, although the indictment might have 
 been good without such allegation. United States v. Porter, 3 Day, 283. But see Wilson v. 
 Codman, 8 Cranch, 209. 
 
 (2) Baylies v. Fettyplace, 7 Mass. 325; Clark v. Todd, 1 Chip. 213; Colt v. Boot, 17 Mass. 
 236; Crawford v. Mowell, 8 Johns. 253; Goulding v. Skinner, 1 Pick. 162; Kobbins v. Otis, 1 
 Pick. 868; Pppe v. Barnett, 1 Mason, 123; Smith v. Barker, 8 Day, 312; Harris v. Harris, 2 
 Band. 431; Obert v. Whitehead, 6 Halst. 293; Hart v. Tyler, 15 Pick, 171; Scott v. Maasicfc, 
 4 Monr. 588. 
 
BODY OR StJBSTAlfCB. — I. IN ASSUMPSIT. 311 
 
 tain day, instead of stating, that " heretofore, to wit, on, &c." it was iv- im 
 made, &c. (w) (1). ' ^^*"' *«■ 
 
 In stating a bill of exchange or other instrument, it seems not to be a fa- ^*!*^y- J^^ 
 tal variance to state that the defendant " subscribed it with his own prop- aetion 
 er hand," although it was signed by his agent only (o) (2). l. !„ aa- 
 
 Where the plaintiff in a special action of assumpsit against the defend- sumpsifc 
 ant for refusing to retain the plaintiff in his service according to agree- 3- The 
 ment, stated in his declaration that the defendant had agreed to retain him ™^Mt°^ 
 at a specific sum per annum, and it appeared from the evidence that neith- 
 er a specific sum, nor any specific time had been agreed upon, this was 
 ruled to be variance, notwithstanding the sum mentioned in the declara- 
 tion waslaid under a videlicet (jo) (3.) And where there is an action against 
 a carrier, the termini of the journey on which the goods are to be carried 
 are incorrectly stated, the mistake will be a ground of nonsuit (^q). Ih 
 declaring on special agreements relative to goods, mis-descriptions as to 
 quality, quantity, and price, have been held fatal. A declaration on a 
 promise to deliver good merchantable whea^ has been ruled not to be sup- 
 ported by evidence of an agreement to deliver good second sort of wheat 
 (r) (4). When the plaintiff stated an agreement to take in a full cargo 
 of certain goods, and the contract proved was to take in a certain speci- 
 fied quantity, it was ruled to be a variance, notwithstanding such quantity 
 might amount to a full cargo (s). And where the contract declared on 
 was, that the defendant should sell and deliver to the plaintiff certain 
 goods " at 4s. per stone," and the evidence was, that the plaintiff was to 
 give 4s. per stone, and if he should pay more to any other person for sim^ 
 ilar goods, that he should then give the same price to the defendant, it 
 was held that the declaration was not supported by the proof (t) (5). 
 
 Several cases have also occurred in which variance as to the time of 
 performing the contract declared on have been held fatal (6). Thus, 
 
 (n) See Chit. Bills, 7th ed. 354; 2 Campb. ty on Bills, 7th edit. 357, 358. 
 
 307; 4 Car. & Pay. 24. It may be shown that (p) 1 Stark. 3; 1 M. & P. 735. And see 
 
 the instrument was made on another day, 4 '2 B. & B. 116; ante, 296; seeposi, 317-, as to 
 
 East, 477; see farther as to date, 4 B. &. C. the videlicet. 
 
 908; 7 D. & R, 507, S. C; 5 B. &. C. 108; 7 (?) 2 Stark. 385. See the notes to the pre* 
 
 D. & R. 548. Not necessary to state in a dec- cedent, post, vol. ii. 
 
 laration that a guarantee within the statute (r) 1 Ld. Raym. 735. 
 
 against frauds was in writing, ante. 303. (s) 2 Esp. Rep. 708. 
 
 (0) See 1 M. & M. 182, and the oases. Chit- (t) 1 T. R. 447. 
 
 (1) Bank v. Simmons, 1 Barring. 331; Stevens v. Graham, 6 Serg. & R. 405; Church v. 
 Feterow, 2 Pennsylv. 301 ; Drown v. Smith, 3 N. Hamp. 301 ; Penn v. Flaok, 8 Gill & Johns. 
 369; Thomas v. Thomas, 3 J. J. Marsh. 590; Field o. Field, 9 Wend. 394; Grant v. Winn, 7 
 Missouri, 188. 
 
 (2) Boulware v. M'Comb, Harper, 393: But see Pease v. Morgan, 7 Johns. 468. See also 
 Maok V. Spencer, 4 Wend. 412; Porter v. Cdmmings, 7 Wend. 172. An averment, that "A. and 
 B. indorsed a note, their own proper handwriting being subscribed thereto " is not met by proof 
 of their signature in the handwriting of one of them, there being no averment of a partnership. 
 FuUerton v. Seymour, 5 Vermont, 249. 
 
 (3) See Cranmer v. Graham, 1 Blaokf. 406; Carley v. Dean, 4 Conn. 259. 
 
 (4) See Hastings v. Lovering, 2 Pick. 214. A count for pine timber sold and delivered is not 
 supported by evidence of spruce timber sold and delivered. Robbins v. Otis, 1 Pick. 368. See 
 also to the same effect, Goulding v. Skinner, 1 Pick. 162; Bridge v. Austin, 4 Mass. 115. 
 
 (5) Proof on a contract, by which a yearly rent of $60 is stipulated to be paid, does not sup- 
 port a declaration on a contract to pay $180, at a time stated. Mulford v. Young, 6 Ham. 294. 
 
 (6) Where the time of doing a thing is material, it must be proved as laid. Alitor where the 
 time is immaterial. Jordon v. Cooper, 4 Serg. & R. 576; Hough v. Young, 1 Ham. 504; Perry . 
 V. Botsford, 5 Pick. 189; Drown v. Smith, 3 N. Hamp. 301; Hilt v. Campbell, 6 Greenl. 109; 
 Vail V. Lewis, 4 Johns. 450. As to matter of description, a variance in time is fatal. Gates o. 
 Bowker, 18 Vermont, 23. 
 
*8l2 OP THE DBCLABATION. 
 
 nr. ITS -when the plaintiff stated a contract to remove goods within a reasonable 
 
 Wets, &o. n^g^ ^nd the agreement proved was to remove in a month, it was ruled to 
 
 Sthly. The feg ^ fatal variance (m). Where an usurious contract was set out in the 
 
 action. declaration, and the period of forbearance was stated to be from the 21st 
 
 1. In as- December, 1774, until the 23d December, 1776, *it was held that evidence 
 
 sumpsit. of a contract on the 23d December, 1774, for two years, would not sup- 
 
 8. The port the declaration (x). And when a similar contract was alleged to be 
 
 1*°"''*" for the forbearance of money until a certain specified day absolutely, but 
 
 the contract. proved was for forbearance until the day named, or a certain 
 
 other day, at the option of the borrower, it was held that the evidence 
 
 would not support the statement (jj) (1). 
 
 A great variety of cases are to be found in the books with regard to 
 literal errors in setting out deeds, (and in this respect the rule equally 
 applies to all written instruments) (z). Thus, in an action on a lease, the 
 following have been deemed fatal variances ; namely, " celler beer," for 
 " aller beer ;" (a) and " storehouses ;" for " storehouse ;" (6) and a mistake 
 of the late tenant's name (2), in setting out the premises demised (c). So, 
 an error in stating the local situation to be contrary to that given by the 
 lease, is a material variance (rf). But the statement of a demise of " lands 
 and premises" is correct, although one piece of ground only was granted(e)- 
 So is an averment that " a farm and buildings, and certain pieces of land 
 mentioned in the indenture," were demised, although the lease was of "all 
 that farm or land, and buildings," enumerating the parcels ; for the dec- 
 laration sufficiently states the legal effect of the demise (/). However 
 these literal variances have now become of less importance, as the late 
 statutes (g-) give the judge the discretionary power to allow them to be 
 amended at the trial. 
 
 In the cases we have hitherto noticed, an actual mis-statement of some 
 part of the contract had been made, but instances have arisen when the 
 plaintiff has followed the precise terms of the contract, but has neverthe- 
 less been defeated on the ground of variance, the statement in the record 
 being by legal intendment different from that given in evidence. Thus 
 where the declaration stated a contract to deliver 400 " bushels" of oats, 
 the .plaintiff was nonsuited on proof that the bushels actually contracted for 
 were to be of a particular local measure, and not the ordinary statute 
 measure, which the general description in the declaration was held to im- 
 port (A). And where the declaration upon contracts made in Ireland, 
 
 (u) Peake, N. P. C. 42 (o), 2d edit. 394; 2 Marsh. 96, S. C. 
 
 (j!) Cowp. 671. See further as to Tarianoes (e) 6 M. & Sel. 115. 
 
 it this respect, post, vol. ii. and vol. iii. tit. (/) 1 Y. & J. 2. See 6 B. & C. 252; 9D. 
 
 Usury. & B. 245, S. C, demise of house and fixturet 
 
 (y) 3 T. R. 531. See as to alternative con- described as a demise of a house only, 
 
 tracts, ante, 308. (g) 9 Geo. 4, c. 15; and 8 & 4 W. 4, o. 42, 
 
 (2) As to surplusage in stating irrelevant sect. 28, giving more extensive powers, and 
 
 clauses, &c. ante, 228, 229. which ought to be acted upon liberally. Sea 
 
 (a) 9 East, 188. observations of Alderson, B., in Hemming v. 
 
 (6) 4 M. & Sel. Parry, 6 Car & P. 680, 581 ; and post, 319. 
 
 (c) 1 Campb. 195; 16 East, 161; 1 Stark. (A)4T.R. 314; 6 /d. 388; see also 11 East, 
 100; but see 2 Marsh. 159; 1 Stark. 47. 311; ante, 219. 
 
 (d) 3 Campb, 285; 1 Id. 196; 6 Taunt. 
 
 (1) A count on a note payable on the occurrence of a certain event, or in a reasonable time, 
 is not supported by evidence of a note payable only on the occurrence of the event. Hilt v. Camp- 
 bell, 6 Greenl. 109. 
 
 (2) Vide Whitlook V. Bamsey, 2 Mun. 610; Moore v. Fenwick, Gilm. 214, and the cases 
 there cited. 
 
BODY OB SUBSTANCE. — I. IN ASSUMPSlt. *313 
 
 relative to the payment of any sum of money of and in the currency of that rv- ns 
 country, the *plaintiff merely followed the terms of the contract, without ^■^'^' «"' 
 distinctly showing that the money was to be of Irish currency, it was held g*g'^'3° 
 to give rise to a fatal variance ; the intendment being that when a sum action. 
 of money is stated generally, English money is meant to be designa- i, in as- 
 
 ted (i). Bumpsit. 
 
 Although in general a mis-statement of any part of a contract will be 8. The 
 fatal, in consequence of the entire nature of the contract, yet many cases oonteMt'* 
 may arise in which slight variations between the statement and the proof 
 will be of no importance. We have before noticed the leading and impor- 
 tant rule in the statement on contracts, that it will in all cases suffice, if 
 the legal effect of the contract be stated, and that the party is not compelled 
 to follow the exact words of the contract (&) (1). We will here notice 
 several cases in which, although the declaration was not literally supported 
 by the proof, it was held that no variance arose, the legal effect and sub- 
 stance of the statement and the evidence being the same. Thus where a 
 demise from a tenant from year to year to another to hold from year to 
 year, was stated as a demise from year to year during the continuance of 
 the original demise by the superior landlord ; and it . appeared that in 
 point of fact no such qualification was mentioned in the contract ; it was 
 nevertheless held that no variance arose, the legal effect of the demise be- 
 ing according to the statement (Z). In another case, where a declaration 
 stated that by a certain indenture, made between the plaintiff and the de- 
 fendant, the plaintiff did demise, &c. " a certain farm and buildings, and 
 certain pieces or parcels of land particularly mentioned and described in the 
 said indenture ;" and then set out the particular covenants and the breaches 
 complained of ; and at the trial the terms of the lease appeared to be, "all 
 that farm and buildings herein particularly contained," and then enumer- 
 ated the particular closes of which the farm consisted ; it was objected that 
 there was a variance, the statements in the declaration being more extensive 
 than the proof; but the Court held that a verbatim description was unne- 
 cessary, and that the declaration contained a sufficient description of the 
 substance and legal effect of the demise (»»). So it has been held that a re- 
 vocation of a submission to arbitration before award made, is in effect a breach 
 of an agreement " to stand and perform the award ;" and that an agree- 
 ment not to make such revocation, being in legal effect implied in the en- 
 gagement to stand to the award, the plaintiff may state a promise by the 
 defendant to that effect in the declaration, although no such stipulation in 
 words were contained in the agreement to refer (w). Many other instances 
 maybe given *where the contract declared on has not been literally support- [ *S14 j 
 ed by the evidence, but the statement has been held sufficient, on account 
 of the legal effect of the statement and the proof being identical. Thus 
 when the contract was for the purchase of a certain parcel of hemp, which 
 not being precisely ascertained at the time, was described in the contract 
 as " about eight tons," it was held that it might be declared on under a vide- ' 
 
 (»•) 1 B. & C. 16; 2 D. & R. 15. S. C; 2 B. (m) 1 Y. & J. 2. 
 & Aid. 301; ante, 219. (n) M'Clel. & Y. 464; see 1 M. & P. 239; 
 
 ik) Ante, 305. 2 Id. 81. 
 (I) 9 B. & C. 909. 
 
 (] ) Vide De Forrest ». Brainerd, 2 Day, 528; Beer v. Botsford, B Day, 159; Bordman v. lot' 
 man, 8 Johns. 26; Page v. Woods, 9 Johns; 82; Fei^uson v. Harvrood, 7 Cranch, 413. 
 
814 OF THE DBCtARATION. 
 
 IV. ITS 
 PAB.TS, &, 
 
 licet as a contract for eight tons (o)(l). And -w-hen the plaintiffs declared 
 that they agreed to sell, and the defendant agreed to buy, certain goods 
 caus^'of^* and merchandize, to wit, 328 chests and 30 half chests of oranges and lora- 
 action. ons, at and for a certain price, to wit, the price of J 628, 3s., and the con- 
 1. In as- tract proved was for 308 chests and 30 half chests of China oranges, and 
 sumpsit. 20 chests of lemons, without specifying any price ; the Court held that the 
 8. The particular count of the declaration upon which the question arose, was, in 
 contract'"^ substance, a count for goods bargained and sold ; that the precise quantity 
 of goods could not be considered as of the essence of the contract; and 
 that the plaintiffs having shown that in substance they were entitled to 
 recover, they were not, under the particular circumstances of the case, 
 tied down by the statement under the videlicet, and that therefore the va- 
 riance was not material {p). In a case where the contract upon which the 
 plaintiffs declared, was to deliver stock on the " 27th February," and the 
 agreement proved was to deliver it upon " the settling day," which, at the 
 time of the contract, was fixed for the 27th of February, as the parties fully 
 understood ; it was held that the contract was substantially and in legal ef- 
 fect for the 27th of February, that the parties might use either one phrase 
 or another to express the same thing, and consequently that there was no 
 variance between the contract proved and that stated in the declaration(g'). 
 So, where the declaration alleged a loan of lawful money of Great Brit- 
 ain, it was held no variance to show a loan in a foreign country in the 
 coin of that country ('/•). And where the declaration states a contract 
 for the sale of goods at a certain specific sum, which is proved, but it al- 
 so appears in evidence, as part of the terms of the contract, that the ven- 
 dor was to receive from the purchaser other goods, in liquidation of a 
 certain specific part of the stipulated purchase-money, it will be no vari- 
 ance ; for such a stipulation will only be considered as prescribing a particu- 
 lar mode of- payment of part of the purchase-money (s). 
 Immaterial We have already seen that the omission of any part of the contract 
 collateral ^l^'^h materially qualifies and alters the legal nature of the promise 
 provisions, which is alleged to have been broken will be fatal ; but it is by no *means 
 &0. necessary that parts of the contract should be stated which qjre distinct 
 
 [ *315 ] and collateral provisions, or respect only the liquidation of damages un- 
 der particular circumstances without extending to absolve the defendant 
 from responsibility (<). Thus, where in action by a sailor against the 
 captain of a ship, the declaration stated a contract for the payment of a 
 certain sum of money to the plaintiff for rum money, and an agreement 
 to this effect was proved, but such agreement contained also an addition-^ 
 al stipulation for certain allowance of spirits, it was held no variance, for 
 the agreement given in evidence corresponded with the declaration as far 
 
 (0) 13 East, 410; and see 1 B. & Aid. 9. R. 277, S. C; 1 Hen. Bla. 288; 1 Stark. Eep. 
 (p) 1 Moore, 547; 8 Taunt. 107, S. C. See 487. 
 
 post, 317, 318, (<) "There are a great variety of agreements 
 
 (?) 2 B. & Aid. 835; see contra, Stra. 74. not under seal, containing detailed provisions, 
 
 Bui. N. P. 145, overruled by the case stated in regulating prices of labor, rates of hire, times 
 
 the tezt. and manner of performance, adjustment of 
 
 (r) 5 Taunt. 228; 1 Marsh. 33, S. C. See differences, &o. vrhich it may not be necessary 
 
 ante, 212, 219. to set forth.",'— Per Lord EUenborough, 6 
 
 (s) 9 East, 849; see 8 B. & C. 420; 5 D. & East, 568; 13 Id. 20. 
 
 (1) A variance is immaterial when it does not change the nature of the contract, which must 
 receive the same legal construction whether the words be in, or out of the declaration. Fergu- 
 son V. Harwood, 7 Cranch,408. An unnecessary averment of a breach or infringement of aeon- 
 tract declared on, lieed not he proved, and may be rejected as Burplusaze. Ferguson o. Tucker, 
 
 2Harr.& Gill. 183. 
 
BODY OB SUBSTANCE. — I. IN ASSUMPSIT. 315 
 
 as the declaration went (m). So when the plaintiff declared upon a pro- ^^- "^ 
 mise by a defendant to deliver him a horse which should be worth £80, ^*^'"' "• 
 and be a young horse, and the evidence was not only of a promise to the ^^'y* ^''' 
 above effect but also of a warranty that the horse to be delivered by the action, 
 defendant was sound, and had never been in harness, it was held that i. in as- 
 there was no variance ; and it was laid down by the Court, that if any sumpsit. 
 substantive part of the warranty stated, not qualified by another part 3. The 
 omitted, be proved not true, it was sufficient to maintain the action ; and P'^'oiae or 
 that it was no more necessary to set out other collateral parts of the con- ""^ 
 tract, whereof no breach was alleged, then it was necessary that in an ac- 
 tion of covenant the plaintiff should set out all the covenants contained 
 in the deed, when he did not complain that most of them had been broken 
 (a;). Upon the same principle, where the plaintiff declared upon a pro- 
 mise by the defendant, that certain bacon which he had purchased of the 
 defendant should be prime bacon, and then averred a breach of this con- 
 tract, it was held to be no variance that the contract proved was for prime 
 singed bacon, for the plaintiff was only bound to state all that related to 
 the point of which he complained, and beyond that it was needless for 
 him to go (j/). And where in an action for the non-.delivery of goods, 
 the plaintiff stated a contract to deliver goods to be paid for by bill at two 
 months, and the proof was that they were paid for by such bill on invoice 
 or delivery, it was held not to amount to a variance (z). So where, in 
 an action for not accepting goods sold, it was averred in the declaration 
 that the defendant bought of the plaintiff a certain quantity of rice, ac- 
 cording to certain conditions, and it appeared in evidence that in addition 
 to these conditions the rice was sold per sample, it was held not to con- 
 stitute a variance, the words "per sample" not being any essential part of 
 the contract declared upon, but a mere collateral engagement or warran- 
 ty *that the goods sold should answer the description of a small parcel ex- [ *316 ] 
 Mbited at the sale (a). An example of such stipulations as do in some 
 measure vary the liability of the defendant, but which only affect the 
 amount of damage to be recovered in particular cases, and do not alto- 
 gether destroy the plaintiff's right to recover, may arise in the case of ac- 
 tions against carriers who give notice that they will not be liable in re- 
 spect of certain goods beyond a particular sum. A stipulation of this des- 
 cription need not be set out in describing the contract, but may be given 
 in evidence by the defendant in reduction of damages (6). The result 
 of the cases upon this subject is that if the carrier only limit his respon» 
 sibility, that need not be noticed in pleading, but if a stipulation be made 
 that under certain circumstances he shall not be liable at all, that must be 
 stated (c). 
 
 Trifling omission of immaterial forms, not in any way affecting the sub- 
 stance of the contract, will be of no more importance than mis-descrip- 
 tions of the like nature (d) . The plaintiff is not bound to state more than 
 the substance and legal effect of the contract he declares on ; and except 
 when he renders his allegation of the contract descriptive of a written in- 
 strument, he is not bound to support his declaration literally, but substan- 
 tially. When, therefore, the evidence is precisely the same in substance 
 
 i^} i ?■ ? ?• ^" (*) 6 ^^^' ^S3. and see 2 B. & C. 22; 3 D. 
 
 (a:) 8 East, 6. &B.211, S.C. 
 
 (y) 4 Taunt. 285; see 11 Price, 19, (c) Per Abbott, C. J., 2 B. & C. 22: 3 D & 
 
 (a) 3 Pnce. 68. r. 213, S. C. ; ante. 310. 
 
 la)4B.&Ald.387. (d) See a Je. 312. 
 
316 OP THE DECLARATION. 
 
 IV. ITS ^ith the declaration, though some immaterial term may have been omitted 
 PARTS, &o. -jj ^jjg latter, the plaintiff will not be liable to be nonsuited on the ground 
 5thly. The ^f variance. Thus, a declaration on a contract, for not delivering gum 
 action° Senegal, is supported by evidence of a contract for rough gum Senegal, if 
 1. In as- it appear that all gum Senegal, on its arrival in this country, is called 
 sumpsit. rough (e). So, in an action for not accepting goods, evidence of a con- 
 3. The tract for the sale of goods to be ready for delivery /rom ship or warehouse 
 conS^^t °^ before a certain day, will support an averment of a contract for goods to 
 be ready for delivery generally before that day ; for the evidence showing 
 that the goods contracted for must be delivered from one or other of the 
 places specified, and the option being with the purchaser, it was tanta- 
 mount to a contract to deliver generally (/). The omission of a term 
 necessarily implied from the statement in the declaration will come under 
 the same principle and be quite immaterial. Thus, whei'e the plaintiff 
 stated a contract relative to the loan of a horse by him to the defendant, 
 and averred that the defendant promised to take care of the horse, and re- 
 turn him in good condition or pay a certain sum of money ; and the con- 
 tract proved was, that in addition to tliese terms the defendant should find 
 the horse meet for his work, it was held that the contract wassuf&cient- 
 [ *317 ] ly proved according to its legal *effect, for the law would imply that the 
 party borrowing a horse was to keep it, unless the contrary appeared (g"). 
 In stating the consideration, we have seen that it is in all cases abso- 
 lutely necessary that the whole of the entire consideration for the perform- 
 ance of the act in question should be set forth, and that even where the 
 contract has consisted of several engagements and promises, quite distinct 
 from each other, but founded on one and the same entire consideration, 
 an action cannot be brought for the breach of anyone of such engagements 
 or promises, without setting forth in the declaration the entire considera- 
 tion applicable to all the premises collectively (A). The rule is different 
 in stating the defendant's promise itself: here the plaintiff is only required 
 to set forth with correctness that particular part of the contract which he 
 alleges the defendant to have broken, or, as we have before observed, to 
 show so much of the terms of the agreement, beneficial to the plaintiff, as 
 constitutes the point for the failure of which he sues (i). 
 
 We may here take occasion to mention a form or phrase which is very 
 frequently used in pleading, and is not altogether unworthy of considerar 
 tion. The expression alluded to is the videlicet, or scilicet, 0' to wit" 
 or " that is to say,") which is constantly adopted, not only in mentioning 
 time or place, but also in stating the description or value, &c. of goods, 
 and in other averments in all the forms of action. It is clear that when 
 the matter alleged is material and traversable, and must be stated with 
 exactness and certainty, the statement of such matter under a videlicet will 
 not avoid the consequences of a variance (1) or repugnancy if the matter . 
 
 (e) 1 Chit. Rep. 39. 86; SBiBg. 315, S, C. ; 1 Campb. 861. 
 (/) 6 Taunt. 581 ; 2 Marsh, 287, S. C, (t) Ante, 304; 4 Taunt, 285; 6 East, 564; 
 
 (g) 2 B. & B. 859; and see 11 Price, 19. 8 Id. 7, 13; Id. 18; 11 Moore, 88, 89. 
 (A) Ante, 299. Seeparticularly, 11 Moore, 
 
 (1) Janson v. Ostrander, 1 Cowen. 676. Attorney General v. Jeffreys, 1 M'Clel. & Young, 
 277; U. States t). Burnham, 1 Mason, 57; Hastings v. Lovering, 2 Pick. 214,222; Paineii.Fox, 
 16 Mass, 129, 133; Ladue v. Ladue, 16 Vermont, 189. Where damages are laid subsequent to 
 the commencement of the action on the case for the seduction of a daughter, or previous to the 
 plaintiff having any right of action ; in such case, if the matter is laid under a scilicet, the court 
 avail themselves of that circumstance to say, that it is not to be intended that the jury took the 
 evidence given into consideration. Stiles v. Tilford, 10 Wend. 340. 
 
BODY OR SUBSTANCE — I. IN ASSUMPSIT. 31T 
 
 be mis-stated, and there would be a fatal variance in the absence of the ^- ™ 
 videlicet ; and this whether the matter be the consideration or promise in ^^^'^' *"■ 
 the case of a contract, or be time or place, when material, or relate to oth- ^''•^y- "^^ 
 er subjects (A). Thus it is necessary to state the grant of letters of ad- action"^ 
 ministration to a plaintiff suing as administrator, if the date of the grant, i. i^ «- 
 though laid under a scilicet be incorrectly stated to have been on a day sumpsit. 
 preceding to the alleged date of the promise to the intestate, it will be bad 3- The 
 on special demurrer, although preceded with the words, that after the P"''"'''^ or 
 death of the intestate, to wit, on such repugnant day, the letters were Qf" ^'^- ' j^ 
 granted (I). lu stating such matter, therefore, the videlicet is useless *to or ITdelu 
 avoid a variance ; and although it be used, the averment is considered posr «'»• 
 itive, direct and traversable (m). [ *318 ] 
 
 It is laid down by very great authority (re), that "on the other hand the 
 want of a videlicet will in some cases make an averment material that 
 would not otherwise be so ; or if a thing which is not material be positively 
 averred without a videlicet, though it were not necessary to be so, yet it 
 is thereby made material and must be proved ; therefore where a party does 
 not mean to be concluded by a precise sum or day stated, he ought to 
 plead it under a videlicet ; for if he do not, he will be bound to, prove the 
 exact sum or day laid (1), it being a settled distinction, that where any 
 thing which is not material is laid under a videlicet, the party is not con- 
 cluded by it, but he is where there is no videlicet (2). And there are 
 
 (fc) 1 Saund. 170, n. 2; 2 Id. 290 a. u. 1; contrary to the premises, nor increase nor di- 
 
 4 Taunt. 321; 9 B. & C. 215 per Bayley, J., minish the precedent matter." Hob. 175; 2 
 
 2 Campb. 231; L Stark. 3. As to scilicets in Saund. 291 a, note. 
 
 general, see 2 Saund. 290 a, n. 1 ; 5East,252; (i) Ringj).Roxbrough,2 Tyr.468; 2 Crom. 
 
 1 Stark. Grim. Law. 288, 239; 1 Chit. Crim. & J. 418, S. C. 
 
 Law, 226, 227; Steph. Index, Videlicet. " Its (m) 2 Saund, 291 a. note; Stra. 233. 
 
 use is to particularize that which was general (71) Mr. Serjeant Williams, 2 Saund. 291 1, 
 
 before, and to explain that which is indifferent, note, 
 doubtful, or obscure ; but it must be neither 
 
 (1) Times and sums, if material jnMst be proved, although laid under a videlicet. Vail v. 
 Lewis, 4 Johns. 450; Attorney General v. Jefferies, 1 M'Clel. & Young, 270; Phillips' Ev. 163, n. 
 " It is true that under a videlicet, the plaintiff has stated a time for the receipt of the sums 
 which is prior to the settlement of either account. But it is a settled rule in pleading, that what 
 comes under a videlicet is no arerment. It is certain that in this form of pleading the defendant 
 could not have traversed the time, although essential to the merits of his defence; he -cannot 
 therefore be bound by it." Per Pakker, C. J., Paine, Judge, &c, v. Fox, 16 Mass. 133. But 
 in a late case the same judge has said, in reference to this dictum, " that it was undoubtedly a 
 mistake; it is only where the allegation so expressed is immaterial, and might have been omitted, 
 that it shall not be traversed, and may be omitted as useless." Hastings v. Levering, 2 Pick. 
 223. See what is said as to the decision in Paine v. Fox, by Savage, C. J., 7 Cow. 44. 
 
 (2) As the cases on the subject of variance are very numerous, it may not be improper to col- 
 lect a few additional ones, without, however, stating'the point decided in each, and arrange them 
 under distinct heads in order that all which relate to any particular branch of the subject may be 
 presented to the reader at one view. 
 
 1. Variance in proof of record. Rodman v. Forman, 8 Johns. 26; Page v. Woods, 9 Johns. 
 82; Brooks v. Remiss; 8 Johns. 455. 
 
 2. Of writs, executions, &c.; Green v. Rennett, 1 Term Rep. 656; Bissell v. Kip, 5 Johns. 89; 
 Byne v. Moore. 5 Taunt. 187; Beers v. Botsford, 3 Day, 159. 
 
 3. Proceedings In Chancery. Thompson v. Jameson, 1 Cranch, 283. 
 
 4. Grants, leases, bonds, and other instruments under seal. Tempany ji. Burnaud, 4 Campb. 
 20; Middleton v. Sandford, Id. 34; Phillips v. Rose, 8 Johns, 392; Franklin p. Talmadge, 5 
 Johns. 84; Gordon o. Brown's Ex'r, 3 Hen. & Mun. 219; Adams v. Spear, 1 Hayw. 215; State 
 V. Street, Taylor, 128; Evans v. Smith, 1 Wash. 172; M'Williams v. Willis, Id. 199; Drum- 
 mond V. Crutcher, 2 Wash. 218; James v. Walruth, 8 Johns. 410. 
 
 6. Policy of Insurance. Cohen v. Hannam, 5 Taunt. 101. 
 
 6. Bills of Exchange and Promissory Notes. Roche v. Campbell, 3 Campb. 247; Hodge v. 
 Fillis, Id. 463; Pease v. Morgan, 7 Johns. 468; Wilmot v. Monson, 4Da7, 114; Saxtoni;. Joh]i8.f' 
 ton, 10 Johns. 418; Wood 0. Bulkley, 13 Johns. 486; Sheehy v. Mandeville, 7 Cranch, 208. 
 
 • YOL-Ja^ 44 
 
318 OP THE DECLARATION. 
 
 IV. ITS decisions and dicta in support of this doctrine that matter may become 
 
 PAETs, c. material, and must be proved as laid, merely because it is averred without 
 
 cause' f'^* *^^ intervention of the videlicet {p). But there are also some authorities, 
 
 action. though less numerous, which appear to impeach the doctrine, at least as a 
 
 1. In as- general rule (7-1). And it seems not to apply even to criminal pleadings(9). 
 
 sumpsit. It is true that the videlicet is often considered to be adopted as expressive 
 
 3. The Qf the intention of the pleader, not to bind himself to a positive and mi- 
 
 contract. ^^^^ proof of the averment ; but still it seems to be a harsh construction 
 
 that the omission of the phrase shall be held to import that he restricts 
 
 himself to such limited proof, in cases where in law the matter does not 
 
 of itself, and if averred under a videlicet, call for such particular and 
 
 strict evidence. A videlicet will not avoid a variance in an allegation of 
 
 material matter, neither should the omission of it create the necessity of 
 
 proving precisely as stated matter which would not otherwise require such 
 
 precise proof. 
 
 One of the most important effects of the new rules of pleading is, that 
 unless there be a plea upon the record denying the contract' as alleged, it 
 need not be proved ; and in actions on bills and notes, those rules exclude 
 ihQ general isswe non-assumpsit, and require som^ special or particular 
 denial ; as that the bill or note was not made, nor indorsed, or not ac- 
 cepted, <fec. (r) ; and in other respects those rules very much limit the 
 risk of variance. So, if the defendant pay money into Court under a 
 plea of tender, he cannot afterwards avail of a variance in the statement 
 of the contract (s). 
 [ *319 J *Moreover by the 9 Geo. 4, c. 15 (f), intituled, "An act to prevent a 
 Unless the failure of justice by reason of variances between records and writings, 
 of"the°con- Produced in evidence in support thereof ; " after reciting that great ex- 
 tract be peuse is often incurred, and delay or failure of justice takes place at trials, 
 denied by by reason of variances between writings produced in evidenoe and there- 
 wiil^not be '^*''^' '■^^ setting forth, thereof upon the record on which the trial is had in 
 material matters not material to the merits of the case, and such record cannot now 
 and will be jq any case be amended at the trial, and in some cases cannot be amended 
 i^mittwL ^* ^"y ti"^^ ' f'^''" remedy thereof is enacted, " that it shall b^ lawful for 
 Amend- every Court of record holding plea in civil actions, any judge sitting at 
 ment of jjjsi prius, and any court of oyer and terminer and general gaol delivery 
 hTstatlng i'l England, Wales, the town of Berwick-upon-Tweed, and Ireland, if such 
 written in- Court or judge shall see fit to do so, to cause the record on which any 
 Btniments, tj-ial p[iay be pending before any such judge or Court, in any civil action, 
 
 under 9 G, 
 
 4 c. 16. (0) 8 T. K. 68; 3 M. & Sel. 173; 2 Moore, 643; 2 Phil. Evid. 4th edit. 287, 228, note.In- 
 
 ' ' 114, 93; 8 Taunt. 107, 112; 3 Price, 64; 2B. dex. Videlicet; Starkie's and Chitty's Crimi- 
 
 & C. 2; 2 D. & B. 226, S. C; 16 East, 416, nal Law; ante, 318, note (k). 
 
 419; 13 East, 410; Peake's Evid. 4th ed. (r) Reg. Gen. Hil. T. 4 VV. Pleadings in 
 
 217; M'Clel. 277, 279. Particdlae Actions. 1 Assumpsit. 
 
 (p) 2 Campb. 307, n. And see 1 Phil. Evid. (s) Bulwer v. Home. 4 Bar. & Adol. 182. 
 
 4thed.227,228,n.,Index, KWeZteef; 2Saund, («) See 2 Chit. Col." Stat. 736, tit. Nisi 
 
 291 0, n. b., to 6th edit. See 6 East, 437. Prius. 
 (?) 1 Lord Raym. 149; 6 T. R. 266; 3 Id. 
 
 7. Other simple contracts. Crawford v. Morrell, 8 Johns. 253; Smith v. Barker, 3 Day, 812; 
 Harrington o. Maomorris, 5 Taunt. 228, Baylies v. Fettyplaoe, 7 Mass. 325; Drake v. Watson, 
 
 4 Day, 37; Burnham v. Webster, 5 Mass. 270; Alexander v. Harris, 4 Cranoh, 299. 
 
 8. In name of corporation. The People v. Rankel, 9 Johns. 47 ; Gilbert v- Nantucket Bank, 
 
 5 Mass. 98; Med way Cotton Manufactory u. Adams, 10 Mass. 360. 
 
 9. In name of place. Phillipps' Ev. 165, 166. 
 
 10. Other cases of variance. Lewis v. Few, 5 Johns. 1; Southwickr. Stevens, 10 Johns. 443; 
 Pe fprrest v. Brainerd, 2 Day, 528, 
 
BODY OR STJESTANCE.-^I. IN ASSUMPSIT. 
 
 319 
 
 or in any indictment or information ibr any misdemeanor,^ when any va- p^^^™g 
 riande shall appear between any matter in loriling or in print produced in 
 evidence, and the recital or setting forth thereon upoii the record whereon ^^J^^j ® 
 the trial is pending, to be forthwith amended in such particular by soraS actiou. 
 officer of the Court on payment of such costs (if any) to the other party, i. in ss- 
 as such judge or Court shall think reasonable, and thereupon the trial shall sumpsit. 
 proceed as if no such variance had appeared ; and in case such trial shall 3. The 
 be had at nisi prius, the order for the amendment shall be indorsed on the eJutewt. 
 posteaand returned together with the record ; and thereupon the papers, 
 rolls and other records of the Court from which such record issued shall 
 be amended accordingly." 
 
 Upon this statute, in an undefended action upon a bill of exchange, the 
 plaintiff was allowed to amend at the trial, witliout the payment of any 
 costs, a mistake in stating the dale of a bill of exchange (m); and in another 
 case, where it was incorrectly stated in assumpsit for not indemnifying the 
 plaintiff, that a judgment was recovei'ed in B. R., whereas it was recov- 
 ered in C. B., Lord Tenterden, C. J., allowed the error to be amended at 
 the trial (u). But it is reported to have been held by one judge that the 
 statute only applies to cases where some particular written instrument is 
 professed to be set out or recited in the pleading (x) ; and therefore where 
 a common avowry in replevin mis-stated the terms on which the plain- 
 tiff held the premises by demise, and amendment at the trial was refus- 
 ed (y)- r ,„„„ -, 
 
 *The subsequent act 3 & 4 W. 4, c. 42, sect. 23, is more extensive, and ]•, , mJ 
 authorizes a judge pending a trial to amend every description of variance i)ece"saary * 
 when such amendment would not prejudice either party in the just con- Averments 
 duct of his action or defence on the merits. And provided the judges '^ assump- 
 respectively will in practice carry into effect the powers with which they *''■ 
 have certainly been invested, the law mig'ht in every case be rescued from 
 its present disgraced state as regards the effects given to variances on 
 trivial points ; but at present the instances of permitting amendments are 
 too limited, and at all events, as regards the duties of a pleader, he is not 
 relieved from the task of exerting the utmost care to avoid a variance, 
 which at least occasions considerable risk and great expense (z). 
 
 4thly. An Averment signifies a positive statement of facts in opposition 
 to argument or inference (a) ; and when the obligation on the defendant 
 to perform his contract depended on any event which would not otherwise 
 appear from the declaration to have occurred, it is obvious tbat an aver- 
 
 («) 4 C. & p. 24. stated a special acceptance at A. or at B., but 
 
 (») 1 M. & M. 359. the bill produced appeared to be only accepted 
 
 (xj 8 C. & P. 594. If this be law it would at A., and the words at "B." were written on 
 
 be judicious, in declaring upon n, written th^bill, merely as the address of the drawer, 
 
 agreement, to profess to set it out, as by aver- which the pleader or attorney mistook for 
 
 ring that "by a certain agreement or instru- part of the acceptance, Lord Tenterden re- 
 
 ment in writing, made between," &c. it was fused to amend, saying it would only enoour- 
 
 agreed, &c. rather than to state it by showing age want of care in drawing pleadings, and he 
 
 only its substance or effeot.without referring to was not bound to permit amendments; that the 
 
 it as a written instrument. act was meant only to aid clerical mistakes, 
 
 (y) 3 C. & P. 594; Reeves i>. Scott, 21st Feb. and not such as any man who could read 
 
 1829, at Guildhall, Per Lord Tenterden. " It would avoid making; plaintiff obtained a ver- 
 
 is not to be taken that a judge \a bound toper- diet on the account stated, Campbell andBrod- 
 
 mit an amendment. It is discretionary, and if erick for plaintiff ; Denman and Richards for 
 
 a party has unnecessarily stated irrelevant mat- defendant. 
 
 ter in which there is a variance, he is not : («) See in general the author's observatioa 
 
 bound to amend." So in Jelf v. Oriel, against on the Practice respecting Amendments of Va-' 
 
 drawer of bill, Ouildhall, 20th October, 1829,- riances Fending a Trial, &c. 
 
 tor. Lord Tflsterde n^jyhere the declaration (o) Cowp. 683,684; Bao. Ab. Pleas, B. 
 
320 Of THE DficLAfiAWOJf. 
 
 IV. ITS ment of such event is essential to a logical statement of the cause of ao 
 PARTS, p. ^Jqjj^ ^^^ should precede the statement of the defendant's breach. Such 
 
 5thly. The averments in a special action of assumpsit usually are, 1st, of the perfor- 
 causeof ^„ » ^„ :,.■'.. ' ', ^ 0,1 
 
 action. mance or excuse tor non-performance 01 a condition precedent, or of the 
 
 1. In as- happening of some event essential to the cause of action ; 2dly, That the 
 
 Bumpsit. defendant had notice of such performance or of such event ; and 3dly, 
 
 4. Of aver- That he was requested to perform his contract (6). 
 
 ist. Of" When the consideration of the defendant's contract was executed {c), or 
 averments past at the time of making the contract, and his performance was not to 
 of plain- depend on any subsequent event, or other circumstance essential to the 
 fm-mance ^ction, the declaration should proceed at once from the statement of the 
 of his part Contract to the breach, without any intermediate averments, as in a count 
 on an indebitatus assumpsit, &c. But when the consideration of the de- 
 fendant's contract was executory (d), or his performance was to depend on 
 r *321 1 some act to be done or forborne by *the plaintiff, or on some other event, 
 the plaintiff must aver the fulfilment of such condition precedent, whether 
 it were in the afi&rmative or negative, or to be performed or observed 
 by him or by the defendant, or by any other person, or must show some 
 excuse for the non-performance (ti) (1). And in the case of reciprocal 
 covenants, constituting mutual conditions to be performed at the same 
 time, the plaintiff must aver performance or a readiness to perform his 
 part of the contract (e). Thus in declaring on a promise to pay a sum 
 of money in consideration that the plaintiff would execute a release, the 
 declaration must aver that such release was executed or tendered and re- 
 fused (/) (2). So, on a promise to pay money in consideration of for- 
 bearance by the plaintiff, the declaration must aver such forbearance (§■) ; 
 and in actions for not delivering goods sold, the plaintiff must in general 
 aver a readiness on his part to pay the price, &c. (A)(3). But upon a 
 lessor's covenant that lessee ^a^'^w^ the rent at the appointed time should 
 quietly enjoy, it was held that the lessee might sue for- a disturbance in 
 possession, although he had not duly paid his rent (i). A perusal of the 
 forms of the special counts in assumpsit, which are given in the second 
 volume, will further illustrate this rule. But where an estate or interest 
 passed or vested immediately in the plaintiff, and was to be defeated by 
 a condition subsequent, or matter ex post facto, whether in the affirmative 
 
 (J) See Com. Dig. Pleader, C. 50, &o, ; Bac. 2 Saund, 108, note 3. 
 
 Ab. Pleas; 1 Saund. 235, n. 8. (g-) Com. Dig. Pleader, C. 52; poit, vol. ii. 
 
 (c) Ante, 295. 152, 153. 
 
 (d) Ante, 296. (A) 1 East, 203; pout, vol. ii. An cffer 
 Id) Ughtred's case, 7 Co. 10 a; Com. Dig. need not be alleged, when, 1 Marsh. 412; 7 
 
 Pleader, C. 51, 52; Dougl. 686; 1 T. B. 638. Taunt. 314; 2 Saund. 362, notes. 
 
 (e) Id', 1 East, 203; ante, 196. (j) Dawson v. Dyer, 6 Bar. & Adol. 584. 
 (/) 2 Burr. 899; 8 East, 437; 13 Id. 117; 
 
 (1) Hilt V. Campbell, 6 Greenl. Ill ; Dodge v. Coddington, 3 Johns. 146; Jennings v. Camp. 
 18 Johns. 94 ; M'Millan v. Vandeslip, 12 Johns. 165; Faxon v. Mansfield, 2 Mass. 147; Ferris 
 V. Purdy, 10 Johns. 869; Wright i». Tuttle, 4 Day, 322; Wilt v. Ogden, 18 Johns. 57; Thorpe 
 v. White, 13 Johns. 63; Zerger «. Sailer, 6 Binn. 24; Salmon ». Jenkins, 4 M'Cord, 288; 
 M'Intire v. Clark, 7 Wend. 880; Gray v. James, Peters, C. C. 482; Justice v. Board of Justi- 
 ces, 2 Blaokf. 149; Bayley v. Cloy, 4 Band. 846; Jewell v. Thompson, 2 Litt. 62; Thompson v. 
 Jewell, 1 A. K. Marsh. 195; Bank of Columbia 0. Hagner, 1 Peters, 455; Helm v. Wilson, 4 
 Missouri, 481. 
 
 (2) Parker v. Parmele, 20 Johns. 180, and the cases there cited. Vide Smith v. Woodhouse, 
 2 New B«p. 233; Miller v. Draks, 1 Caines, 46; Green v. B^ynolds, 2 Johns. 207. 
 
 (8) Vide Porter V. Rose, 12 Johns. 209; West v. Emmons, 6 Johns. 179; 
 
BODY OE SUBSTANCE. — IN ASSUMPSIT. 
 
 321 
 
 oi" negative, or to be performed by the plaintiff or defendant or by any ^^'J^-^™^ 
 other person, performance of that matter need not be averred (/fc) ; as if a ' 
 
 grant of an annuity were till the plaintiff should be advanced to a bene- °^°y-^f 
 fice, he need not say that he is not yet advanced (?)■ action. 
 
 As observed by Lord Mansfield, in delivering his judgment in Kingston i. tn as- 
 V. Preston (m), "there are three kinds of covenants: 1st, such as are sumpsit. 
 called mutual a.nd independent, whether either party may recover damages ^^'2^*"*'' 
 from the other for the injury he may have received by a breach of the ^^^^^1^. 
 'covenants in his favor, and where it is no excuse for the defendant to al- 
 lege a breach of the covenants on the part of the plaintiff. 2dly, There 
 are covenants which are conditions dependent on each other ; in which the 
 performance of one depends on the prior performance of the other, and 
 therefore till this prior condition be performed the other party is not liable 
 to an action on his covenant. *3dly. There is also a third sort of cove- [ 322 ] 
 nants, which are mutual conditions to be performed at tfie same time ; and 
 in these, if one party was ready, and offered to perform his part, and the 
 other neglected or refused to perform his, he who was ready and offered 
 has fulfilled his engagement, and may maintain an action for the default of 
 the other, though it is not certain that either is obliged to do the first act. 
 The dependence or independence of covenants is to be collected from the 
 evident sense and meaning of the parties, and however transposed they 
 may be in the deed, their precedency must depend on the order of time iu 
 which the intent of the transaction requires their performance. In the 
 case before the Court it would be the greatest injustice if the plaintiff 
 should prevail : the essence of the agreement was, that the defendant 
 should not trust to the personal security of the plaintiff, but before he de- 
 livered up his stock and business should have good security for the pay- 
 ment of the money ; the giving such security therefore must necessarily 
 be a condition precedent" (1). 
 
 There are no precise technical words in the deed or other contract to 
 make a stipulation-a condition precedent or subsequent ; neither does it 
 depend on the circumstances whether the clause is placed prior or poste- 
 rior in the deed, so that it operates as a proviso or covenant ; for the 
 same words have been construed to operate as either the one or the other, 
 according to the nature of the transaction (w) (2). The contradiction in 
 the determination has arisen not from a denial, but from a misapplication 
 of this principle in the particular instance (o). 
 
 The words by which conditions precedent are usually created are, 
 for (jp) ; in consideration of (g') ; provided, &c. (r) ; doing, &c. : perform^ 
 
 {K) 7 Co. 10 a; Willes, 145, 146. 570, 668; 7 Id. 130; Piatt on Gov. 72, &o. 
 
 (Z) Id,; Plowd. Com. 25 b, 30 a 32 b; 1 T. 79. 
 
 R. 645, 646; 2 Hen. Bla. 579. (o) 1 Saund. 320 a,; Willes, 157, d. a. 
 
 (m) Cited Dougl. 690, 691; and see the (p) Dong. 688; 1 Saund. 320, note 4; 
 
 note in Willes, 157, n. a; 1 Saund. 320, n. 4; Willes, 157, note a; Tidd, 9tli edit. 487; 1 
 
 2 Id. 108, n. 3. 852, n 1; Flatten Cot. 70; 1 Stra. 569; 1 Vent. 177, 218; 2 Saund. 850, 
 
 East, 203; Com. Dig. Pleader, C. 50 to C. 68, S. C. 
 
 as to conditions precedent and averments of (g) 1 Lord Raym. 665; 2 Id. 766; 1 Wils. 
 
 performance in general. 88; Willes, 157. 
 
 (n) Per Ashurst. J., 1 T. R. 846; 6 Id. (r) 3 Campb. 385; Willes, 498. 
 
 (1) Aekley v. Elwell, 5 Halst. 304; Bank of Columbia «. Hagner, 1 Peters' S. C. 464. 
 
 (2) Powers v. Ware, 2 Pick. 456, per Putnam, 9; Vide Barnes v. Madan, 2 Johns. 148; Gun-' 
 ningham v. Morrell, 10 Johns. 205 ; Smith v. Woodhouse, 2 New, 240. 
 
322 OP THE DBCLAKATION. 
 
 IV. ITS ing, &d. (5) ;-Mpora condition, &c. (0 ; having so done, &c. (u) ; ita quod 
 PAET3 &o. ^^-j . p^Qifidg Q^-^ . ^c._ In general, if the agreement be that one party shall 
 5thly. The (Jq an aet, and that /or the doing thereof the other shall pay a sum of money, 
 action." ^^^ doing of the act is a condition precedent to the payment, and the 
 1. luafr. party who is to pay shall not be compelled to part with his money till the 
 sumpsit. thing be performed (1). If there be a condition precedent, however im- 
 4. Ofaver- probable the thing may be, it must be complied with, or the right which 
 S^rdn ^^^ *° attach on its being performed does not vest (0) ; as if the condition 
 be that A. shall enfeoff B., and A. do all in his. power to perform the ' 
 cofldition, and B. will not receive livery of seisin, it is clear that the right 
 which was to depend on the performance of that condition did not arise ; 
 [ *323 ] and if a person undertake *for the act of a stranger, the cases are uniform 
 to show that such act must be performed (a). And oa this principle, 
 where by the proposals of the Phoenix Insurance Company against fire, it 
 wa5 stipulated that persons insured should, in case of loss by fire, procure 
 a certificate of the minister, &c. of the parish, importing tiiat they knew 
 the character of the assured, and believed that he had really sustained the 
 loss without fraud, it was held that the procuring of such a certificate was 
 a condition precedent to the right of the assured to recover, and that al- 
 though it was found by verdict that the minister, &o. wrongfully refused to 
 sign the certificate, yet as it was not averred in the declaration ihat the 
 certificate was actually obtained, the judgment was arrested (6) (2). 
 
 Some rules have been collected, by which to discover the intention of 
 the parties and to ascertain when performance or excuse of perfoi'manco 
 by the plaintiff is necessary to be averred in the declaration (c). First, 
 Where a day was appointed for payment by the defendant of money or 
 part of it, or for his doing any other act, and such day was to happen 
 before the thing which was the consideration of the defendant's contract 
 was to be performed, an action may be brought for the money, or for 
 not doing such other act, before performance by the plaintiff (3) ; for 
 
 (s) 2 Bla. Kep. 1313, 1314; Willes, 496, Saund. 820 d. 
 158, &o. ; but see 5 B. & .Adol. 5B4. (a) Per Lord Kenyon, C. J., and Lawrence, 
 
 (0 Co. Lit. 202 b.; Willes, 153. J., 6 T. R. 719, 722. • 
 
 (li) 3 M. & Sel. 408. (6) 6 T. R. 710. 
 
 Ix) 2 Lord Eaym. 766. (c) 1 Saund. 320, note 4; Tidd, 9tli edit. ' 
 
 ly) Dougl. 688; Willes, 149; Piatt on Cot. 487,438. Distinction between a co»enon( and 
 
 72. a condilion, Piatt, 70, &o. ; and see construo- 
 
 (2) 6 T. R. 710, 722; see 8 Id. 873; 1 tion in Allen ». Cameron, 1 Crom. & M. 838. 
 
 (1) Vide Dodge *. Coddington, 3 Johns. 146; Cunningham v. Morrell, 10 Johns. 203; Green 
 V. Reynolds, 2 Johns. 207; Jones v. Gardner, 10 Johns. 266; Stevenson v. Kleppinger, 5 Watts, 
 420. 
 
 (2) A party agrees to perform work to the entire satisfaction of the defendant and third per- 
 sons; in an action to recover the price it must be averred, that the work was done to the satia- 
 feotion of such third persons, though it may not be necessary to aver that it was done to the sat- 
 isfaction of the defendant. Butler v. Tucker, 24 Wendell, 447^ 
 
 (3) See Robb v. Montgomery, 20 Johns. 15; Couch v. Ingersoll, 2 Pick. 292. Vide Cunning-" 
 ham V. Morrell, 10 Johns. 2f04; BarVuso •». Madan, 2 Johns. 145; 2 Hen. Black. 392. In Terry 
 V. Duntze, 2 Hen. Black. 389, it was held that if A. agree to finish a piece of work for B. by a 
 certain day, paH of which is to be paid by instalments, as the work progressed, and the residue 
 on the completion of it, A. may maintain an action for the entire consideration without averring 
 performance; and this rule was adopted by the Supreme Court of the State of New York in Seers 
 V. Fowler, 2 Johns. 272; Havens v. Bush, Id. 387; Wilcox ii. TenEyck, 5 Johns. 78. But these 
 oases were overruled in Cunningham v. Morrell, 10 Johns. 203, where the agreement being to 
 pay the plaintiff a certain sum for completing the whole of the work, to be paid in instalments 
 as the work progressed, it was held that if the plaintiff went for the whole of the consideration; 
 money, he must aver performance of tt'e whole work, or if for a ratable part of the money, he 
 must show a ratable performance. Cases of this kind are' clearly distingaishable from those in 
 
BODY OR SUBSTANCE. — I. IN ASSUMPSIT. 
 
 323 
 
 it appears that the defendant relied upon the mere agreement to do the ^^l;^'^^ 
 act, and upon his remedy if not performed, and did not intend to make ' " 
 
 the plaintiff's performance (1) a condition precedent {d). And so it is ^'y^^- J ® 
 where no time is fixed for the performance of that which is the considera- action, 
 tion of the money or other act (e). 2dly, But when a day was appointed i. in aa- 
 for the performance of the defendant's contract, and such day was to hap- sumpsit. 
 pen after the time when the consideration of the defendant's contract was 4. Ofayer- 
 to be performed, in such case in general no action can be supported until ^g°g*n 
 ' the plaintiff has performed his act, and such performance must be, aver- 
 red (/). 3dly, That where the plaintiff's covenant or stipulation, con- 
 stituted only a part of the consideration of the defendant's contract, and 
 the defendant has actually received a partial benefit, and the breach on 
 the part of the plaintiff might be compensated in damages, an action may 
 be supported against the defendant, without averring performance by the 
 plaintiff (g-) (2); for where a party has received a part *of the considera^ [ *324 ] 
 tion for his agreement, it would be unjust that because he has not had the 
 whole, he should enjoy that part without paying or doing any thing for it, 
 and therefore the law obliges him to perform the agreement on his part, 
 and leaves him to his remedy to recover any damage he may have sustain- 
 ed in not having received the whole consideration (A). In these cases, 
 however, it seems necessary to aver in the declaration performance of at 
 least a part of that which the plaintiff covenanted to do, or to show that 
 the defendant has otherwise received a partial benefit ,(i). 4thly, But 
 where the mutual covenants constitute the whole consideration on both 
 sides, they are mutual conditions, the one precedent to the other, and the 
 plaintiff must aver performance on his part (/) (8). .5thly, Where two 
 
 (d) See the cases referred to in 1 Sannd. for work and labor. 
 
 820, a, note 4; 1 Wils. 88; 2 New Rep. 433; (g) 1 Saund. 320 b; Boon v. Eyre, 1 Hen. 
 
 Piatt on Cov. 95. Bla. 273, is a leading case; and see 6 T. B. 
 
 (e) 1 Saund. 320 a. 572; 10 East, 295, 555, 563; 12 Id. 389; 3 
 • (/) Id. 320 b; and id. note a, 5th ed.j 8 M. & Sel, 308; 8 Taunt. 576, 2 Moore,' 630, S. 
 
 East, 473; 2 B. & Aid. 17; Piatt on Cov, 83. C; Piatt on Cot. 90. 
 
 There are ioBtancea, in which the plain tiifhav- (A) See note (»), anZe. 
 
 ihg partly performed work, &c. may recover " (i) 1 Saund. 320 c, d; 10 East, 295; 6 
 
 ■pro tanto, the defendant receiving the benefit Moore, 114. 
 
 of such part; see post as to the common counts (/) 1 Saund. 320, note 4; Piatt on Cov. 80. 
 
 which the day of payment was fixed before the performance of the consideration on the part of the 
 defendant; for here either the whole or some part of the work was to be done, before the whole 
 or any part of the price of the sum could be demanded. And if, as in Wilcox v. Ten Eyck, ub. 
 sup, part is to be paid at specified limes, and the residue on the delivery of the deed, or other act 
 to be performed by the defendant, and the covenants, as regards the prior payments, are un- 
 doubtedly independent, yet it docs not therefore follow that the covenant for paying the residue 
 must also be independent. Gould v. Banks, 8 Wend. 662 
 
 (1) Vide Smith v. Woodhouae, 2 New, 233; Close v. Miller, 10 Johns, 90; Jones v. Gardner. 
 10 Johns. 266. 
 
 (2) Aco. Bennett v. Pixley, 7 Johns. 249; Obermeyer v. Nichois, 6 Binn. 159. In the last 
 cited case the jury were allowed to deduct from the sum covenanted to be paid by the defendant 
 to the plaintiff, an equivalent for the injury sustained, by the latter not performing the covenants 
 on his part. See 4 Leigh, 21. 
 
 (3) Harrison v. Taylor, 3 Marsh. 168; Tanner v. Beareford, 1 Bay, 237; Hounsford v. Fish- 
 fir, Wright. 580; Halloway ». Davis, Wright, 130; Goodwin v. Lynn, 4 Wash. C. C. 714; Leon- 
 ard V. Bates, 1 Blackf. 176; Bean v. Atwater, 4 Conn. 3; Tinney v. Ashley, 16 Pick. 652; Jones 
 V. Somerville, 1 Porter, 437; Smith v. Christmas, 7 Yerger, 565; Clendenner v. Paulsel, 3 Mis 
 230, Marshal v. Craig, 1 Bibb, 379; Couch v. IngersoU, 2 Pick, 292; Farnham v. Ross, 2 Hall" 
 167. Vjde Barruso ». Madan, 2 Johns. 145. Where there are mutual covenants and the defen- 
 dants have received the principal part of the consideration for the engagements on his. part, the 
 covenants of the parties will be construed to be independent, and the plaintiff may maintain an 
 flction for the breach of the defendant's covenants, ftlthough he has failed in performing in part 
 
324 OF THE DECLARATION. 
 
 IV. IIS acts are to be done at tlie same time, as where A. covenants or agrees to 
 
 PARTS, &o. pQijyey an estate, or to deliver goods to B. on a named day, or generally, 
 
 5thly. The and in consideration thereof B. covenants to pay A. a sum of money on 
 
 action" ^^ same day, or generally ; neither can maintain an action without show- 
 
 1. In as- i"S' performanceof, or an offer to perform, or at least a readiness to perform 
 
 sumpsit. his part (1), though it is not certain which of them was obliged to do the 
 
 4. Of aver- first act (2) ; and this rule particularly applies to contracts of sale (A). 
 
 ments jj jg ^o be observed that several modern cases before the recent pleading 
 
 rules, show that under the general issue the defendant might have given 
 
 in evidence non-performance of a condition precedent in reduction of 
 
 damages (I). 
 
 In point of form, an averment may be in any words amounting to an 
 express allegation that such a fact or facts existed (m) ; as, " the plaintiff 
 avers," or, " in fact sait/i," or " although," or " because," or " toith this 
 that," or " being," (n) &c. The simple, and, therefore, best mode of 
 averment is, "flwc? the plaintiff saith that, Sfc." ajxA the words, ^'^ avers, 
 8fc." or " in fact saith," are obviously necessary. Where it is necessary 
 to aver the life of a person in pleading, it is often sufficient if it appear by 
 implication that the life continues (o) ; as where one who claims under a 
 rector states that the rector was &u&yet is seized, this is a suflBcient aver- 
 ment of his life (p). So if it be stated that A. was seized in fee and died, 
 and that the land descended to B. as his son and heir, this is a sufficient 
 averment that A. died seized (9). It is not usual in declarations on 
 [ *325 ] mutual promises, and *in covenant between landlord and tenant, to aver 
 that the plaintiff hath performed all things on his part to be performed, 
 but this is unnecessary (r) ; though it may after the verdict aid the omis- 
 sion of an averment of plaintiff's performance of a particular act (s). 
 
 Where it is necessary on tiie part of the plaintiff to aver performance, 
 it must be shown to have been according to the intent of the contract, for 
 it is not sufficient to pursue the words if the intent be not also performed ; 
 as on a promise in consideration that the plaintiff would cause A. to come 
 to be bound to the defendant for £20, it is not sufficient to aver that the 
 plaintiff caused A. to come to be bound, but it ought to be also alleged 
 that A. was bound (t). And an exact performance must also be stated; 
 
 (/c) 1 Saund, 820 d. note 4; 2 Id. 362, note an averment, see Cowp. 683, 684; 1 Saund. 
 
 3; and 108, note 3; 1 East, 203; 8 T. R. 366; 117, note 4; Willes, 134, 427. 
 
 7 T. R. laO; 7 Taunt. 314; 1 Moore, 66, S. (n) 2 Burr. 834. 
 
 C; 8 Taunt. 62; 1 Moore, 498, S. C. (o) 1 Saund. 235, note 8; 2 Id. 61, note 9. 
 
 (l) Allen V. Cameron, 1 Crom. & M. 836, (p) Id.; Dyer, 304 a; Sir T. Jones, 227. 
 
 and cases there cited; quare, the existence or (g) 2 Saund. 61 g, note 9. 
 
 extent of that doctrine since the recent plead- (r) 1 Saund. 234 c note 5, 
 
 ing rules as to the practice in actions for torts , (s) Lutw. 253; Sir T. Jpnes, 125; Com. 
 
 see^osi. Dig. Pleader, 0. 61. 
 
 (m) 1 Saund. 117, note 4; Com. Dig. (/) Com. Dig. Pleader, C. 58; Telv. 90. As 
 Pleader, C. 77. As to the nianner of mailing 
 
 on his side. Tompkins v. Elliott, 5 Wend. 496. The case of Dakin v. WilUatns, 11 Wend. 70, 
 recognizes the doctrine laid down in the text. 
 
 (1) See Dana v. King, 2 Pick. 156; Kilgour o. Miles, 7 Gill & Johns. 268. Where a vendor 
 agreed to sell 100 tons of pressed hay, and to deliver the same within a given period, for which 
 the vendee was to pay at an agreed price, $100 in advance and the residue when the whole quan- 
 tity should be delivered, and the vendor delivered 60 tons, but omitted to deliver the residue, it 
 was held that the vendor could not recover for the portion delivered. Champlin v. Rowley, 13 
 Wend. 258; Tapping v. Hoot, 5 Cowen, 404; Tinney v. Ashley, 15 Pick. 546; M'Gehee v. Hill, 
 4 Porter, 170. 
 
 (2) Vide Green D.Reynolds, 2 Johns. 207; Portere. Rose, 12 Johns. 209. So, if it be stated 
 that the defendant gave evidence on the trial of a cause, that it is a sufficient averment that be 
 had notice of the pendency of the suit. Barney v. Dewey, 10 Johns. 224. 
 
826 
 
 as on a promise in consideration that the plaintiff would procure the loan ^^^^ ^fs 
 
 BODY OR SUBSTANCE. — I. IN ASSUMPSIT. 
 
 procure the loan ^^^^ &o 
 of <£20 for one year, it is not sufficient to allege that he procured part at ' ^^^ 
 one time and part at another, for he ought to procure the whole for the ^^^^^^^^ ° 
 whole year (m). And performance ought to be shown with such cer- action, 
 tainty, that the court may judge whether tlie intent of the covenant has i. in as- 
 been duly fulfilled ; as in consideration that the plaintiff would acquit A. sumpsit. 
 of a debt, it is not sufficient to say that he acquitted him without showing ^ °^^^*'' 
 how, viz. by deed (x). Where the matter to be performed is a condition thergji,^ 
 precedent, the performance of that matter must be shown, although a third 
 person was to do the act, and he unreasonably refuse his concurrence ; and 
 a substituted performance is insufficient ; as where a fire policy required 
 that the minister and churchwardens should certify as to the plaintiff's 
 character, &c. it was held that such certificate by those persons was indis- 
 pensable (y). But if the plaintiff show a substantial performance of a 
 matter of a general nature, it is frequently sufficient to state it in general 
 terms, without alleging particularly how he performed : as on a promise 
 to pay so much as the plaintiff should expend for the officers of the army 
 in such^a suit, an averment that he spent so much is sufficient, without 
 showing for what officers in particular Qz) (1). And there are some in- 
 stances where the thing agreed to be done by the plaintiff having been 
 substantially performed, though not in the exact manner, nor with all the 
 minute circumstances mentioned, it was considered as a sufficient per- 
 formance (a) ; as where the condition was to enfeoff, a conveyance by 
 lease or release was held sufficient (6) ; so where the condition was to 
 deliver the will of the testator, and the plaintiff delivered letters testa- 
 mentary (c). So, in a declaration on a contract to pay so much money, 
 if the plaintiff would marry the daughter of the defendant at his request, 
 an allegation that he did *marry her, without saying at the defendant's L ^^o J 
 request, is sufficiently certain {d). Where the condition precedent was 
 in the disjunctive, the averment of performance must be framed accord- 
 ingly, and not in the conjunctive (e) (2). Where the defendant's agree- 
 ment was to pay ^45 if the plaintiff would make " a set of sails worth 
 £45," the Court held that an averment that the plaintiff made " the said " 
 sails (not showing their value) was sufficient on demurrer (/) . 
 In averring an excuse of performance by the plaintiff, he must state his 
 
 to pleas of performance, see post. (a) 6 T. B. 722. 
 
 (u) Com Dig. Pleader, C. 59; Yelv. 87. (4) Co. Lit. 207 a. 
 
 (i) Cro. Jac. 503; Com: Dig. Pleader, C. (c) 1 Rol. Ab. 426, pi. 4. 
 
 60; Cro. Eliz. 914; SirT. Jones, 125. (d) Cro, Car. 
 
 (y) 6T. R. 710; ante, 323. (e) 1 Stra. 594. 
 
 (a) Com. Dig. Pleader, C. 61. (/) Id. 88. 
 
 (1) In a case in Connecticut, where the plaintiff averred generally that he had kept and per- 
 formed all the covenants in the indenture on his part to be performed, it was held not only suffi- 
 cient, but the most proper form; and that the distinction was, that where the act involved in it 
 a questipn of law, viz. whether it was done as the law directed, the quo modo must be pointed 
 out; but where it is a mere matter of facta general averment of performance is the most proper. 
 Wright V. Tuttle, 4 Day, 313. It is not always sufficient to aver performnnoe io the words of 
 a contract; the intent of the contract must be shown to have been performed. The legal import 
 of the contract must be averred to have bsen done; and where it is necessary, on the part of the 
 plaintiff, to aver performance, it must be set forth with such certainty as to enable the court to 
 see that the contract has been fulfilled. Thomas v. Van Ness, 4 Wend. 558, 
 
 (2) Where several things are to be done by the plaintiff, precedent to the performance of the 
 defendant's part of the agreement, it is necessary for the plaintiff to aver performance of all the 
 things to be done by him; but if the performance of a part be not averred,' and it appear by the 
 defendant's plea, that the part in question was performed, the defect in tlie declaration is cured, 
 Zerger v. Sailer, 6 Binn. 24, 
 
 Vol. I. 46 
 
826 
 
 OP THE DECLARATION. 
 
 sxk' '& readiness to perform the act, and the particular circumstances which con- 
 ' °" stitute such excuse ; and therefore where the declaration stated that arbi- 
 cause of " ^^^^^^^ could not make their award, without showing the special cause 
 action. which prevented them, it was held insufficient (§■) (1). 
 1. In aa- In stating an excuse for non-performance of a condition precedent, the 
 9umpsit. plaintiff must in general show that the defendant either prevented (2) the 
 4. Of aver- performance, or rendered it unnecessary to do the prior act, by his neglect, 
 Uie°ein ov hj h\s discharging the plaintiff from performance (A). The perform- 
 ance of a condition precedent may also be excused by the absence of the 
 defendant, if his presence were necessary for the plaintiff's performance ; 
 or by his neglect to do the first act, if it were incumbent on him to per- 
 form it (i). It may also be excused in some cases by the defendant's not 
 giving wo^ice to the plaintiff (&). We have seen that if a third person 
 was to perform the condition, it is no excuse for the plaintiff that such 
 third persoQ refused to do the act (Z). 
 
 Where the respective acts to be done by the plaintiff and defendant 
 were mutual, and were to be performed at the same time, the plaintiff 
 should aver his reat^mess to perform Ais part, and either state that the 
 defendant neglected to attend when necessary, or refused to perform his 
 part, or discharged the plaintiff from his performance (ot) (3). Thus 
 when the defendant stipulated to pay a sum of money on the plaintiff's as- 
 signing to him a certain equity of redemption, and the declaration aver- 
 red that the plaintiff was ready and willing and offered to assign, and 
 tendered a draft of an assignment to the defendant for his approbation, 
 and offered to execute and deliver and would have executed and deliv- 
 ered such assignment to the defendant, but that he absolutely discharged 
 the plaintiff from executing the same or any assignment whatever, and 
 had not paid the money, such declaration was, on demurrer, held suffi- 
 [ *327 ] cient (w). So, in an action of assumpsit *for not delivering bonds and 
 other securities pursuant to an agreement, where the consideration money 
 ■was to be paid on the receipt of the securities, it is not necessary to aver 
 an actual tender of the money ; an allegation of the plaintiff's readiness 
 to pay is sufficient (o). So, in an action for the non-delivery of goods, 
 which the defendant had undertaken to deliver on request at a certain 
 price, it is sufficient for the plaintiff in his declaration, without alleging 
 an actual tender of the price, to aver such request, and that he was ready 
 and willing to receive the goods, and to pay for them according to the - 
 terms of the sale, and that the defendant had notice of such readiness, 
 
 (g) 2Sannd. 129,132. (m) Dougl. 684; 1 East, 203; 2 Saund. 
 
 (A) 1 T. R, 688; Doug. 684, 687, 688; Co. 852, note 3; 7 T. R. 130; 7 Taunt. 814; X 
 
 Lit. 206 b; 5 Taunt. 80; 8 Id. 70; 8 East, Moore, 56, S. C. 
 
 448; ante, 820. 821. (n) Dougl. 684, 585. 
 
 (i) 1 Rol. Abr. 457, 458; 7 T. R. 18. (o) 1 Moore. 56; 7 Taunt. 814, S. C; 7 T. 
 
 (fc) 1 Rol. Abr. 457, 458; Co. Lit. 207 a. R. 180. 
 
 {I) Ante, 822,825. 
 
 (1) See Baker v. Fuller, 21 Pick. 818; Pomroy «. Gold, 2 Metoalf, 500; Couch v. Ingeraoll, 
 2 Pick, 292. 
 
 (2) Newcomb v. Braokett, 16 Mass. 161. A declaration averring that the plaintiff had ;)«r- 
 f aimed as nearly as it was possible without adding that it was accepted as a full performance, 
 would be bad. Stagg v. Munro, 8 Wend. 399. 
 
 (3) Vide Miller v. Drake, 1 Caines, 45 ; Porter v. Rose. 12 Johns. 209. Topping v. Root, 6. • 
 Cowen, 404; Tinney ». .Ashley* 16 Pick. 646; M'Gahee v. Hill, 4 Porter, 170; Savary «. Goe, 
 
 8 Wash. C. C. 140; Anderson v. Garth, 1 Stewart, 160; Pomroy v. Gold, 2 MetcaU, 600; Tile- 
 ston V. Newhall, IS Mass. 406; Kane v. Hood, 13 Pick. 281 ; Couch v. IngersoU, 2 Pick. 292. 
 
327 
 
 but refused to deliver them (p) ; or if the defendant did not attend at the ^^J^ ™ 
 
 BODY OE SUBSTANCE. — IN ASSUMPSIT. 
 
 not attend at the 
 appointed place, such non-attendance should be stated, which would ren- ' ' 
 
 der an averment of request unnecessary Qq) (1). And where the acts to ^^J^^^ ® 
 be performed by each party are mutual, and to take place at the same aetion. 
 time, the plaintiff, it appears, should riot only aver his readiness to per- i. in as- 
 form his act, but also a notice of his readiness, or insert some other alle- sumpsit. 
 gation to dispense with it ; thus in an action against a woman for not ^g^^"*'' 
 marrying plaintiff within a reasonable time, an averment of notice of read- X"reiii. 
 iness to marry should be stated, though the omission would suffice after 
 
 verdict (r). Conse- 
 
 The omission of the averment of performance of a condition precedent, ^^^^^^^ „; 
 or of an excuse for the non-performance, is fatal on demurrer, or in case inBufEoient 
 of judgment by default (.v) ; but after verdict the omission may in some averments, 
 cases be aided by the common law intendment, that every thing may be 
 presumed to have been proved which was necessary to sustain the ac- 
 tion (2) ; for a verdict will cure a case defectively stated Q). Thus, in 
 actions upon agreements to sell or assign leasehold property, an aver- 
 ment by the plaintiff, the vendor, that he was " ready and willing and 
 offered to assign, seems to be sufficient after verdict, without alleging that 
 he had a good title (m). And at least, after verdict, an averment of read- 
 iness and willingness to assign, &c. is tantamount to an averment of a 
 tender of an assignment (a;). But where the non-performance of the con- 
 dition precedent appears on the face of the pleadings, a verdict will not 
 aid the defect (^). 
 
 It is frequently necessary, particularly in special actionsof assumpsit, to Averment 
 aver that the defendant had notice of some fact or facts *previously stated ; ° °?,j^' -, 
 and a great variety of the instances where such averment is necessary are L "^° J 
 collected in the books referred to in the note (0) (3). Prom these it appears, 
 that when the matter alleged in the pleading is to be considered as lying more 
 properly in the knowledge of the plaintiff than of the defendant, then the dec- 
 laration ought to state that the defendant had notice thereof (4) ; as where 
 the defendant promised to give the plaintiff as much for a commodity as 
 
 (p) 1 East, 208. The rules as to a verdict, &e. curing a defect 
 
 iq) 7 T. B. 129, 131; 6 East, 107; see 11 in pleading, will be considered hereafter^ 
 
 Price, 494. {«) 8 Taunt. 62; 1 Moore, 498, S. C. 
 
 (r) 2 D. & R. 55. {x) Id. 
 
 (s) 2 Burr. 899; 2 Saund. 352, n. 3. (y) 6 T. R. 710. 
 
 It) 8 Taunt. 62; 1 Moore, 798, S. C; 1 (z) As to averring notice, see Com. Dig. 
 
 East, 209, 210; 2 Saund. 352, n. 8; 2 Burr. Pleader, C. 73 to 75; Vin. Abr. Notice; Hardr. 
 
 930; Doug. 687, n. (g) and (h) ; 1 Saund. 42; 5 T. R. 621, 624; 1 Saund. 117, n. 2. 
 228, n. 1; sed vide Doug. 679; Cro. Jao. 503. 
 
 (1) Where the power to perform a covenant on the part of -the plaintiff depends on an act 
 previously to be done on the part of the defendant, it is unnecessary for the plaintiff to aver a 
 tender and refusal, but an averment of a readiness to perform is sufBcient ; as, where A. cove- 
 nants to convey, and B. covenants to execute a bond and mortgage for the land, in an action by 
 B. against A., it ia sufficient for the plaintiff to aver his readiness to perform. West v. JJm- 
 mons, 5 Johns. 179. Vide Robbins v. Luce, 4 Mass. 474. 
 
 (2) Vide Rucker v. Green, 15 East, 290, 291; Owens v. Morehouse, 1 Johns. 276, 277- Lef- 
 fingwell V. White, 1 Johns. Cas. 99; Bayard v. Malcolm, 2 Johns. 571; Bailey v Clay, 4 Rand. 
 346; so the omission of the averment of performance of a condition precedent is cured if it apj 
 pear in the defendant's plea, or in his notice under the plea, that it has been performed bv the 
 plaintiff. Zergers. Sailer, 6 Binn. 14. S. P. 9 Pick. 65. 
 
 (3) Kingsley v. Bill, 9 Mass. 198; Colt v. Root, 17 ib. 229. 
 
 (4) Vide Lent v. Padelford, 10 Mass. 238; Dix v. Flanders, 1 N. Hamp. 246; Bush v Critoh 
 field, 4 Ham. 103; Austin v. Richardson, 3 CaU, 201. Watson v. Walker, 3 Foster, (N H ) 471 
 
328 OF THE DECLAHATION. 
 
 IV. IIS another person had giyen, or should give him, for the like ; or to pay the 
 PAET3 &o. plaintiff what damages he had sustained by a battery, or to pay the plaintiff 
 5thly. The his costs of suit (a) and in a declaration against the drawer or iadorser of a 
 action. ^^^^ ^^ exchange, it is material to aver notice of non-payment by the acceptor, 
 1. Inas- 01" some excuse for the neglect (6) (1). But where the matter does not lie 
 flu'mpsit. more properly in the knowledge of the plaintiff than of the defendant, notice 
 4. Of aver- need not be averred (c) (2). Therefore, if the defendant contracted to do a 
 herein tlii"g 01 'lis performance of any act by a, stranger, notice need not be averred 
 Notice." ^^^ ^* ^^^^ ^^ ^^^ defendant's knowledge as much as the plaintiff's, and he 
 ought to take notice at his peril («?) (3) and though it is usual in practice in 
 a declaration of debt upon an award, and in the replication in debt on 
 bond conditioned for the performance of an award, to aver that the de- 
 fendant had notice of the award, such averment is unnecessary, because, the 
 defendant ought to take notice of the award, unless it was expressly pro- 
 vided in the submission that the award should be notified to the parties, 
 when notice must be alleged (e). So, if upon a treaty of marriage a 
 promise be made by a third person to pay the feme £100 after the death 
 of the husband, it is not necessary, in an action upon this promise, to aver 
 that the defendant had notice of the death ; and in a declaration on a 
 promise to pay a sum of money at the full age of an infant, notice of liis 
 attaining that age need not be alleged, because it is as notorious to one as 
 to the other (/). On the same principle, if a man be bound to another 
 to indemnify him against the acts of a third person, no notice of those 
 acts is necessary to be alleged (g-) ; and in an action on a promissory 
 note by the indorsee against the drawer, notice of the endorsement need 
 not be averred (A). If the defendant's promise were to pay on the per- 
 formance of a certain act, even by the plaintiff himself, to the defendant 
 or a stranger, there are cases in which it has been decided that notice of 
 the act need not be averred, because by the terms of the contract the de- 
 [ *329 ] fendant *engaged to take notice of it at his peril ; and if the defendant 
 contracted to pay it on the marriage of the obligee with B. (i). : and in the 
 case of a precedent condition to be performed by the plaintiff to the de- 
 fendant in person, notice of the plaintiff's performance need not be aver- 
 red, because it is implied (A;). But we have before seen (J) that where 
 the acts to be performed by each party are mutual, and to take place at 
 the same time, the plaintiff should not only aver a readiness to perform 
 
 (a) 2 Saund. 62 a. n, 4; Cro. Jao. 432; Dig. Pleader, C. 75; 5 T. R. 621, 624; see 5 
 
 Hardw. 42; Com. Dig. Pleader, C. 73; 5 T. R. B. & Aid. 507. 
 
 621, 624; 11 Mod. 48. (/) Hardr. 42; 11 Mod. 48. 
 
 (6) Doug. 679, 680; 2 New. Rep. 855; 7 (g) 1 Saund. 116; 11 Price, 494. 
 
 East, 231. (A) 1 B. & P. 625. 
 
 (c) 1 Saund. 117, n. 2; 2 Id. 62 »,u. 4; (i) 2 Bulstr. 254; Com. Dig. Pleader, C. 
 
 Freem. Rep. 285. 75. 
 
 {(l) Com. Dig. Pleader, C. 75. (fr) Com. Dig. Pleader, C. 75. 
 
 (e) 2 Saund. 62 a, note 4; Hardr. 42; Com. (l) Ante, 822, 824. 
 
 (1) Vide Slacum v. Pomeroy, 6 Cranch,221. 
 
 (2) Vide Lento. Padelford, 10 Mass. 230, 238; Clough v. Hoffman, 5 Wend. 500; Trask v. 
 Duvall, 4 Wash. C. C. 181; Kees v. Powell, 2 Marsh. 264; Kemble v. Wallis, 10 Wend. 374. 
 
 (3) So where the defendant has undertaken as a guarantee for A. B., it is unnecessary to 
 aver notice to the defendant of a failure of performance on the part of A. E. Williams 71. Gran- 
 ger, 4 Day, 444; Lent v. Padelford, 10 Mass. 280, 238. In an action against a sheriff for a 
 &lse return to a ca. sa. it is not necessary to aver in the declaration, that the sheriff had notice 
 from the plaintiff that the defendant was within his bailiwick, so that he might arrest him. 
 Hereford v. Macnamara, 6 Dowl. & Ryl. 953. 
 
BODY OR SUBSTANCE— I. IN ASSUMPSIT. 329 
 
 his act, but also a notice of such readiness, or insert some other allega- ^^:J^^_ 
 tion to dispense witB it. 5thiy. The 
 
 cause of 
 Where notice is necessary, it ought to appear that the notice was given action. 
 in due time, and to a proper person (m) (1) but where a special request 1. 1„ ag. 
 is averred, notice will sometimes be presumed («). Where no notice sumpsit. 
 whateYei" has been given, the absconding of the party, or other circum- 4.^0faver 
 stances should be stated as an excuse for the want of notice (o) ; but i],^.,^, 
 where a notice has been given, but a justifiable delay in giving it at the 
 regular time (as in the case of the notice of the dishonor of a bill) has 
 occurred, under the averment that notice was given, sometimes the facts 
 excusing the delay may be proved (jo). But a careful pleader should con- 
 sider whether it would not be better to state the facts of the excuse. The 
 omission of an averment of notice when necessary will be fatal on de- 
 murrer, or judgment by default (q) ; but may be aided by a verdict (r) 
 (2), unless in action against the drawer of a bill, when the omissionof 
 the averment of non-payment of the acceptor is fatal even after verdict 
 
 Whenever it is essential to the cause of action that the plaintiff should Keqnest. 
 have actually formally requested the defendant to perform his contract, 
 such request must be stated in the declaration and proved (0- It has been 
 observed, that if it had been held that a request were alivays essential to 
 be averred and proved, many vexatious actions might be avoided, but 
 there are a variety of instances in which it is settled that no request is ne- ' 
 cessary anterior to the action, and consequently need not be stated in plead- 
 ing (m) ; thus, where the declairation is upon a contract to pay a precedent 
 debt, as in the case of common counts for goods sold, work and labor, 
 money lent, &c. no request need be *stated or proved (x) (4). And in [ *330 ] 
 these instances, although the promise has been laid to pay on request, the 
 " licet s^pius requisitus" need not be laid or proved (2/). And though 
 formerly a distinction was made between a promise to pay a precedent 
 debt, and one to become due on a subsequent event, that distinction ap- 
 pears not to be tenable ; thus, where the declaration stated that the de- 
 
 (m) Com. Dig. Pleader. C. 74. (0 7 B. & Cress. 468'^ 1 M. & K. 394, S. C. 
 
 (n) Cro. Jac. 228, 229; 1 B. & P. 626; 8 As to requests in general, see Com. Dig. Plead- 
 
 Bulstr. 326, 327. er, C. 69 to 73; 1 Saund. 33 a, n. 2;. 1 Stra. 
 
 (0) Chitty on Bills, 7th edit. 362; 1 Salk. 88; 2 Ventr. 75; 3 B. & P. 438. 
 
 214; Vin. Ab. Notice, A. 2. (tt) 1 B. & P. 59, 60; Cro. Eliz. 548, post. 
 
 (p) 8 B. & C. 287; 2 M. & R. 359; S. C. (x) 1 Saund. 33, and id. n. 2; Bui. N. P. 
 
 (g) Cro. Jac. 432. 151. 
 
 (r) 1 Stra. 214; 1 Saund. 228 a; 2 D. & K. {y) Ring v. Boxbrough, 2 Tyr. 468, 470; 2 
 
 65. Cromp. & J. 418, S. C. [Pettibone v. Petti- 
 
 (s) Dougl. 679; 6 East, 231. bone, 5 Day, 324.] 
 
 (1) When notice is necessary to be given before suit brought, and the contraotupon which it 
 is founded is entered into by two jointly, it is sufficient, on general demurrer, if the plea allege 
 that notice was not given to them. It is not necessary that it should allege that it was not given 
 to either of them. Aliter, if the contract were joint and several. Watson v. Walker, 3 Foster, 
 (N. H.) 471. 
 
 (2) Vide Spencer v. Overton, 1 Day, 183; Weighley's Adm. v. Weir, 7 Serg. & Rawle 
 309. 
 
 (3) Miles V. O'Hara, 4 Binn. 180. See 7 Serg. & Rawle, 310. A general averment in adeo- 
 laration on a bill of exchange, " all of which said premises the defendants, afterwards &c. had 
 notice," is sufficient. Boot v. Franklin, 3 Johns. 207. 
 
 (4) Greenwood v. Curtis, 6 Mass. 366; Ernst v. Bartle, 1 Johns. Cas. 319; Thomas v. Roose, 
 7 Johns. 462; Maddox d. Brown, 9 Porter, 118. Where no previous demand is necessary to 
 sustain the action, the general allegation " though often requested" is sufficient. Dyeri; Rich 
 1 Metcalf, 180. ' ' 
 
330 
 
 OF THE DECLARATION. 
 
 cause of 
 action, 
 1. In as- 
 sumpsit. 
 
 IT. ira fendant, in consideration that the plaintiff would make him a set of sails 
 PARIS, &c. ^Q],^]j £45 promised to pay so much for them on reqliest, it was decided 
 oaus'^' f**^ *^^* ^° request to pay was necessary to be stated, because, on making of 
 the sails the money immediately became due, and the Court said the case 
 differed from those where the payment is to be to a third person, or where 
 an award directs a request (sr). Where the defendant was to perform 
 the first act (a) (1), or has so acted as to render a previous request of 
 performances useless and unnecessary (6), the statement of a request may 
 be omitted. 
 
 But when by the express or implied terms of the contract it was incum- 
 bent on the plaintiff, before the commencement of his action, to request 
 the defendant to perform his contract, such request being as it were a con- 
 dition precedent must be averred (c)(2)- Thus, in an action for not de- 
 livering a horse, sold by defendant to the plaintiff, or for not finding 
 timber for repairs, the declaration should allege a special request to de- 
 liver the same (cJ)(3). Upon a note payable " one month after demand" 
 a demand must be made (e) So, if the contract were to deliver, up a 
 bond to be cancelled " on request ;" (/) or to pay money " on re- 
 quest ;"(g") or if an award direct the defendant to perfprm some act " on 
 request ;" (h") or if the defendant contracted as surety to pay the debt or 
 i-ent of a third person " on request ;" (i) in these cases the request is 
 parcel of the contract, and must be alleged and proved (A) ; or there 
 [ *331 ] must be some allegation to dispense *with it (J). But on a bond condi- 
 tioned generally for payment of a specified sum with interest, an action 
 may be supported without alleging or proving a prior demand (ot). It 
 
 (z) 1 Stra. 88; 2 Veutr. 75; Cro. Jao. 523. 
 
 (a) 2 New Rep. 355. 
 
 (6) 5 B. & Aid. 712; ID. & R. 361, S. C; 
 10 East, 359. 
 
 (c) Com. Dig. Pleader, C. 69; 2 Hen. Bla. 
 131; 1 Saund. 32, 33 a, note 2; 5 T. R. 409; 
 
 5 Bulst. 297. 
 
 (rf) 5 T. R. 409; Sir WL Jones, 56; 1 East, 
 204; Com. Dig. Pleader, C. 69. 
 
 (e) 1 R. & M. 388. As to a note payable 
 "upon demand," Cristie v. Fonseok, cited in 
 1 Selw. N. P.; 10 Mod. 38; 13 East, 352; 
 Chitty on Bills, 7th edit. 361, 373. 
 
 (/) 3 -Bulst. 297. 
 
 (g) 3 Campb. 459. In debt on a single 
 bond, for the payment of money on demand, 
 a demand must be made before action. 2 Bar. 
 
 6 Cres. 685; and see 1 Bac. Ab. 671; 6 Mod. 
 227, 259; 2 Salk. 585, ace; sed vide Cro. 
 
 Eliz. 548, and id. 721, case of an annuity pay- 
 able on request; and in Gibbs d. Southam, 5 
 Bar. & Adol. 911, it was held that an action 
 on a bond conditioned generally for the pay- 
 ment of a specified sum with interest, may be 
 bought without a demand being made. 
 
 {h) 1 Saund. 32. 
 
 (i) 6 M. & S. 9; see 11 Price, 494. Even 
 assuming that a surety is in general entitled 
 to a demand on him, yet he caunot fee so enti- 
 tled where there was no express stipulation to 
 that effect, and the money was to be paid at 
 the creditor's house on a named day ; 6 M. & 
 Sel. 121, 125. 
 
 (fc) Cro. Jac. 500, Owen, 109; 1 Saund. 
 32, 33 a, n. 2; 2 B. & C. 685, S. C. ; sed vide 
 IStra. 88,89; 4 D. & R. 181. 
 
 (I) 10 East, 359, 361; 11 Price, 474. 
 
 (m) Gibbs v. Southam, 5 Bar. & Adol. 911. 
 
 (1) Where the promise was to do a certain act, or pay a certain sum of money, and the de- 
 fendant had not done the act; a special request to pay the money need not be alleged. Lent v. 
 Padelford, 10 Mass. 230. Where previous demand is necessary to maintain suit against two 
 joint promissors, a demand on one is sufficient. Griswolda. Plumb, 13 Mass. 298; M'Farland 
 V. Crary, 8 Cowen, 263. In an action on a promissory note for a certain sum payable in goods 
 of one description, or of another, at the election of the promisee within eight days after date, it 
 was held unnecessary for the plaintiff to aver an election or notice thereof to the defendant, 
 who became liable immediately on the expiration of eight days. Townsend^u. Wells, 3 Day, 327. 
 
 (2) In actions on notes payable in specific articles on demand, a demand before action 
 brought must be alleged and proved. Greenwood v. Curtis, 6 Mass. 684; Lobdell v. Hopkins, 
 5 Cowen, 516; Benners v. Howard, 1 Taylor, 149. 
 
 (3) Vide Ernst t>. Bartle, 1 Johns. Cas. 327; Vide 13 Wend. 285—7. Where a special de- 
 mand is necessary to give the plaintiff a right of action, the general allegation of " often re- 
 queiited," is not sufficient. The demand must be specially set forth with time and place. Car- 
 ley V. Vance, 17 Mass. 891. 
 
BODY OR SUBSTANCE. — I. IN ASSUMPSIT. 331 
 
 should seem, in an action for not marrying in a reasonable time, plaintiff i^- "» 
 should aver a request to marry, or make some other allegation to dispense ^'^^™' ^''' 
 with it (w). In an action against an agent for not accounting, &c. a re- ^*'^y- J^^ 
 quest to account and pay over the balance must be stated (o). action," 
 
 In point oiform there are in pleading" two descriptions of requests ; one i. in as- 
 termed a special request, it alleging by whom and the time when it was sumpsit. 
 made ; the other, the licet scepius requisitus or " although often request- 4. Of aver- 
 ed so to do." When an actual request is essential to the support of the herein, 
 action, a special request must be stated (1), and it must be shown by and xhe dit- 
 to whom the same was made and the time of making it, in order that the ference in 
 Court may judge whether the request were sufficient (jo)(2). Since the pi«'"l'°g 
 pleading rules Hil. T. 4 W. 4, requiring venue or place to be stated only "^g^neTalxi- 
 in the margin and not to be repeated in the body, no place of request quest and 
 need be stated unless a request at a particular place be material accord- ^ 'pecial 
 ing to the terms of the contract. The statement of a general instead of °^J^^i" 
 a special request, when necessary, has been holden bad on a general de- 
 murrer (9) ^ and it has been decided that it would not be aided by ver- 
 dict (r) ; but from the principle deducible from other cases and a recent 
 decision,. it should seem that a judgment by default or a verdict would aid 
 the defect (s), and that the objection must now be taken by a special de- 
 murrer (f)(3). The licet scepius requisitus, or " although often request- 
 ed so to do," without stating the time of request, though usually inserted 
 in the common breach to the money counts, is of no avail in pleading (u), 
 and the omission of it will in no case vitiate the declaration (jc). And 
 therefore where in a declaration upon a note payable four months after 
 date, it was objected in error, that the request to pay the money in the 
 note was laid in the common breach at the end of the declaration to have 
 been upon the same day and year aforesaid, which was the date of the 
 note, and four months before it became due it was adjudged upon a writ 
 of error that there was no occasion to lay any request at all, for the *bring- [ *332 ] 
 
 (n) 2 D. & R. 55. Wils. 33; 7 T. R. 522; 1 Saund. 228, note 1. 
 
 (0) 1 Taunt. 572. (i) 10 East, 359, 365; Tidd, 9tli ed. 439, 
 Ip) 1 Stra. 89; Com. Dig. Pleader, C. 69, note (/); 2 D. & R. 55, ace. 
 
 70, &o.; 1 Saund. 33; 5 T. R. 409; 14 East, (u) Unless as it may be considered as aid- 
 
 800, 301. ing tlie omission of a special request, on gene- 
 
 (5) 5 T. R. 409; sed vide 10 East, 859, roT demurrer or after verdict, &o. see 10 
 
 365. East, 359. 
 
 (r) 3 Bulstr. 209; Cro. Eliz. 85; Sir W. (x) 2 Hen. Bla. 131; 1 B. & P. 59, 60; 
 
 Jones, 56; 1 Saund. 33 a, note 2; Com. Dig. Plowd. 128 b.; Hardr. 38, 72; Ring v. Rox- 
 
 Pleader, C. 39v brougli, 2 Orom. & J. 418; 2 Tyr. 168, 470, 
 
 (s) 10 East, 359; see 1 Stra. 89, 214; 1 S. C. 
 
 (1) Baker v. Fuller, 21 Pick. 318; Pennsylv. and Ohio Canal v. Webb, 9 Ham. (Ohio,) 136. 
 So too, of notice to the defendant, of any fact. Kingsley v. Bill, 9 Mass. 198; Colt v. Root, 
 17 lb. 229. So too, in case of a contract on condition, of the performance of the condition. 
 Whitaker v. Smith, 4 Pick. 83. But where a special request is not necessary to impose on the 
 defendant the obligation to pay, nor to render him liable on his covenant, it is not necessary to > 
 be averred. Smith v. Turnery, 7 Halst. 53. 
 
 (2) Carley v. Vance, 17 Mass. 391; Day v. Day, 9 Wend. 356; Letcher v. Taylor, Hardin, 
 -79; Wilmouth v. Patten, 2 Bibb, 280; Grant ». Groshen, Hardin, 85; Adams ». Macy, 1 
 
 Bibb, 328; Lobdell v. Hopkins, 5 Cowen, 516; Bobbins v. Luce, 4 Mass. 494. 
 
 (3) In an action against the indorser of a promissory note, the omission of a special demand 
 of payment of the maker in the declaration, is aided by verdict : and the general allegation, al- 
 though often requested, is then sufficient, admitting that it would be ill on demurrer. Leffing- 
 well V. White, 1 Johns. Cas. 100; Rodgers v. Love, 2 Humph. 417. In a declaration upon a 
 bond conditioned to pay the taxed costs of a auiti licet ssepius requisitus is ggod on general 
 
 ' demurrer. Bacon v. Wibur, 1 Cowen, 117. 
 
^^^ - OP THE DECLARATION. 
 
 p/Its"&o ^"^ *?, ^^^^°^ ^^^ ^ request in law (y) ; and if a special request be unne- 
 
 '■ cessarily stated, it need not be proved (z). , 
 cause" of * , ^*'^'j'- '^'^^ Breach of the contract being obviously an essential part of 
 action. the cause of action, must ifi all cases be stated in the declaration (a)(1). 
 1. In as- When the s-pecial count in assumpsit is merely for a money demand, and 
 sumpsit. other common counts are subjoined, the usual breach in ithe conclusion 
 Request, of the declaration will in general suffice ; and in declarations on bills of 
 Sthly. The exchange and promissory notes, it has not been usual to state any other 
 CoTtract. ^^^^^^ than that at the end of the common counts {b). But when the 
 breach is special, and not merely the non-payment of money, it is usually 
 stated in each special count. The allegation of the breach must obviously 
 be governed by the nature of the stipulation (2). It should be assigned 
 in the words of the contract, either negatively or affirmatively (3), or in 
 words which are co-extensive with the import and effect of it (c) (4) ; 
 and in many cases this will suifice ; thus in assumpsit on a promise to 
 manage a farm in a good and husband-like manner, and according to the 
 custom of the country, it may suffice to assign a breach in the words of 
 the promise {d). Therefore in debt on a bond, conditioned for payment 
 of an annual sum to the viife of the obligee, a breach assigned in non- 
 payment of the annual sum to the obligee is insufficient (e). But, though 
 a breach may be assigned in the words of the contract, it must not be too 
 general; it must show the subject-matter of complaint (/). And there- 
 fore it seems that a general averment quod non performavit, or that " the 
 defendant did not perform the said agreement," is insufficient (g-) : be- 
 cause " did not perform his agreement" might involve a question of law, 
 and also because the object of pleading is to apprize the defendant of the 
 cause of complaint, so that he may prepare his plea and defence and evi- 
 dence in answer. And yet, as the defendant must know in what respects 
 he has or not performed his contract, any great particularity, it should 
 seem, ought not on principle to be required (A). Where the contract was 
 specific, to do or forbear some particular act, it is in general sufficient to 
 assign the breach in the words of the contract ; thus, if the contract were 
 to show a sufficient record, it is enough to allege that the defendant " did 
 not show a sufficient record," though issue cannot be joined upon it, be- 
 
 (y) 1 Wils. 33; 1 B. & P. 59, 60. 45, 47; and see cases and observations in Earl 
 
 («) Plowd. 128. Falmouth v. Thomas, 3 Tyr. 38, 41, 42, 50. 
 
 (ffl) Com. Dig. Pleader, C. 44, &o. (d) Earl Falmouth v. Thomas, 1 Crom. & 
 
 (b) 1 Wils. 33; 3 M. & Sel. 150; and see M. 89; 3 Tyr. 38, 41, 50. 
 
 the prescribed form of breach in Reg. Gen. (e) 6 Taunt. 140; 1 Marsh. 495. 
 
 Trin.*Term, 1 W.4,yos«, vol. ii. (/) 7 Price, 550; 
 
 (c) Com. Dig. Pleader, C. 45 to 49 ; H. 2 V. 2 ; (g) Skin. 344. 
 2 Saund. 261 a; 1 Price, 109; but see 6 Taunt. (A) Supra {d). 
 
 (1) Benden v. Manning, 2 N. Hamp. 289. 
 
 (2) Withers v. Knox, 4 Alabama, 138. 
 
 (3) M'Geehan v. M'Laughlin, 1 Hall, 33; Karthans v. Owings, 2 Gill & Johns. 541. But a 
 mere negation of the words of the covenant must necessarily in itself amount to a breach, other- 
 wise it will be insuflBoient. JuUian v. Burgott, 11 Johns. 6. The exception to the general rule 
 is, that when such general assignment does not necessarily amount to a breach, the breach must 
 be specially assigned, 2 Gill. & Johns. 441. See the cases cited in the next note, as to what is 
 a sufficient assignment. 
 
 (4) It is enough that the words of the assignment show, unequivocally, a substantial breach. 
 Fletcher v. Peck, 6 Cranoh. 127. See further as to assigning breaches, Hughes v. Smith, 5 
 Johns. 168; Smith v. Jansen, 8 Johns. Ill ; Sedgwick v. HoUenback, 7 Johns. 376; Craghill v. 
 Page, 2 Hen. & Mun. 446; Bender v. Fromberger, 4 Dall. 436; Potter v. Bacon, 2 Wend. 583; 
 Randalls. Chesapeake, &c. Canal Co. 1 Harringtop, 161; Breckenridge v. Lee, 8 Bibb. 880; 
 Hord V. Trimble, 8 Marsh. 583. 
 
BODY OR SUBSTANCE. — I. IN ASSUMPSIT. *333 
 
 cause sufficiency of matter of record cannot be tried by a jury ; but the i^- ^ 
 defendant, on such breach assigned, may plead that he *showed such a ^^^'^^' "• 
 record, and upon demurrer the court will judge whether it be suf&cient (z). ^*'y- ^"^^ 
 In an action of covenant for revoking an arbitrator's authority, it is suffi- action, 
 cient to aver that the defendant by deed revoked, without stating that the i. in as- 
 defendant gave notice of the revocation to the arbitrators (A) : for with- sumpait. 
 out such notice tliere could be no revocation (I). So in covenant by an 5. Of the 
 apprentice for not finding victuals and other necessaries, a breach in the ^^'^^^ °f 
 words of the contract is sufficient (m) ; and a breach in the words of the 
 covenant for not repairing, when not qualified, without enumerating the 
 particular dilapidations, will suffice (n). So in assumpsit against a tenant, 
 on his implied contract to manage, use, and cultivate a farm in a good and 
 husband-like manner and according to the custom of the country, it is 
 sufficient, even on special demurrer, to assign as a breach that the de- 
 fendant did not so manage, use or cultivate the said farm, but on the 
 contrary managed, used, and cultivated the said farm, lands, and prem- 
 ises in a bad, improper, and unhusband-like manner, and contrary to the 
 custom of the country where the said farm was so situate, without stating 
 any particular acts of bad husbandry, or showing what particular custom 
 of the country had been violated (o), and that seems to be the safest 
 course of declaring. And in general, if a breach be assigned in words 
 containing the sense and substance of the contract, though they are not 
 in the precise words of such contract, it is sufficient (jp) (1) ; as if the 
 defendant's promise were to guarantee the payment of the debt of a third 
 person, a breach that the defendant did not pay the debt will suffice (jq) ; 
 so if a policy insured a ship against the barratry of the captain, and the 
 breach assigned was that the ship was lost by i\iQ fraud of the captain, it 
 was held sufficient (r). 
 
 If the matter to be performed by the defendant depend on some other 
 event, it seems proper not merely to assign the breach in the terms of the 
 contract, but first to aver that such event took place (s) (2); as in debt 
 on a bond conditioned that a collector of poor rates should render an ac- 
 count of monies received, it should be averred that he did receive monies, 
 and thfen that he did not render an account of such monies (<). So in 
 assumpsit against a tenant for not managing a farm according to the custom 
 of the country, although the court held the declaration sufficient, without 
 showing what the'custom was, yet *the Court considered it safer to state [ *334 ] 
 the custom affirmatively, and then the breach (m). 
 
 If the contract wag in the disjunctive, the breach ought to be assigned 
 that the defendant did not do one act or the other ; as on a promise to 
 
 (i) Yelv. 39, 40; post, 336, note (g) ; Com. see ante, 305. 
 
 Dig. Pleader, C. 45; 1 Price, 109; but see 6 (g) 1 Sid. 178; 2Rol. 738; 1. 15. Indeed 
 
 Taunt. 45, 47. a breach in the very words of the contract, 
 
 (k) 5 B. & Aid. 507; 1 D. & B. 106, S. C; stating that the defendant did not guarantee, 
 
 8 Co. 162. Sell quxre. would be untechnical and repugnant. 
 
 (I) See the principle, ante, 322, 323. (»•) 1 Stra. 581. 
 
 (m) 3 Lev. 170; sed vide 2 Cro. 486. (s) 6 Taunt. 45, ace. ; 1 Price, 109, semb. 
 
 {n) Lutw. 329, cited by Lord Lyndhurst, C. contra. 
 
 B. with approbation in 3 Tyr. 41 ; 3 T. B. 308, (t) Id. Ibid. 
 
 per Buller, J.; 1 Saund. 835, note 6. (u) Earl Falmouth v. Thomas, 1 Crom. & 
 
 , (o) Earl Falmouth v. Thomas, 3 Tyr. 26. Mees. 110, 111. 
 
 (p) Com. Dig. Pleader, C. 46; 13 East, 63; 
 
 (1) Camp. V. Allen, 7 Halst. 1; Rickert v. Snyder, 9 Wend. 41; Potter ». Bacon, 2 ib. 583, 
 
 (2) M'Gehee v. Childress, 2 Stewart, 506. 
 
 Vol. I. 46 
 
334 OP THE DECLARATION. 
 
 IV. ITS deliver a horse by a particular day, or pay a sum of money (a;) : and if a 
 pABTs, &i5. (.Qve^jaQt be " that the defendant and his executors and assigns should re- 
 oause'o?''* pair," a breach for not repairing ought not to be in the conjunctive {y'). 
 aaiou." ^^'it i'^ assigning the breach of a covenant or contract to pay or " cause to 
 1. In as- be paid" a sum of money (2), it is sufficient to say that the defendant did 
 sumpsit. not pay, omitting the disjunctive words, for he who causes to pay pays (a) ; 
 5. The and a breach that the defendant did not pay several persons is sufB- 
 CorUract ^^^^^^ without adding the words, or either of them {b). So where 
 there are several defendants, an averment that " they have not paid," is 
 sufficient, for payment by one is payment by all. In scire facias on a 
 recognizance of bail, conditioned that if J. B. and G. H. be condemned, 
 they shall pay or render ; after an allegation that J. B. was condemed, 
 it is not sufficient to aver that J. B. and G. H. did not pay or render, 
 without adding " or either of them," for though payment by one would be 
 a payment by both, yet a render oi one is not a render of both, and, consis- 
 tently with the' allegation, B., against whom only judgment was, might have 
 rendered, which would have been sufficient to discharge the recogaizance(c). 
 A distinction has been taken between a contract to perform a thing to a 
 man or his assigns, and by a man or assigns ; and that if a thing be to be 
 done by a man or his assigns, the breach must be in the disjunctive, that it 
 was not done by him or his assigns, but that where a thing is to be done to 
 a man or his assigns, it is sufficient to assign for breach that it was not 
 done to him {d} but there appears to be no foundation for this distinction : 
 and where the action is between the original parties to the contract, as 
 no assignment will be presumed, it will be sufficient to state that the de- 
 fendant did hot perform the act to the plaintiff, without mentioning the 
 assignee or heir (e) ; but if the action be by or against the assignee, heir, 
 or executor, the breach should then be in the disjunctive (1) ; and a dec- 
 laration by husband and wife, or by an administrator, merely stating that 
 the defendant did not pay before the marriage, or that he did not pay 
 since the death, would be bad on a demurrer, though aided by verdict (/). 
 r *335 1 -'■^ *^® breach vary from the sense and substance of the contract, and be 
 either more limited or larger than the covenant, it will be *insu^cient(g') . 
 (2) ; as in covenant to repair a fence, except on the west side the'i'eof, a 
 breach thatthe defendant didnot repair the fence, 'vrithont showing that the 
 want of repair was in other parts of the fence than on the west, is bad on 
 demurrer, though aided by verdict (A). But it is essential, where an ex- 
 ception or proviso is introduced into or referred to by the obligatory clause 
 of an iHstrument, &c. upon which the defendant is charged (i), to nega- 
 tive the exception, &c. restrictive of his liability, in averring the breach ; 
 otherwise the declaration will, it seems, be bad after verdict (A). So, if 
 the covenant were for quiet enjoyment, without lawful disturbance, a breach 
 
 (i) 1 Sid. 410. 447; Hardr. 320; Com. Dig. (e) 1 Stra. 228. 
 
 Pleader, C; 1 Stra. 231. (f) 1 Ld.Raym.284; 1 Vent. 219; 2Eioh. 
 
 {y) Cro. Eliz. 348; 1 Stra. 228. 0. P. 293. 
 
 (z) As to the -words, " or any part thereof," (g) Sir T. Jones, 125; 4 M. & Sel. 36; but 
 
 7 D. & R. 249. see 3 M. & Sel. 152. 
 
 (0) 1 Stra. 231 ; 1 Saund. 285„n. 6. (h) Com. Dig. Pleader, C. 47. 
 (J) Id. ; but see 4 M. & Sel. 33. (i) See ante, 223,309. 
 
 (c) 4 M. & Sel. 33. (k) 1 T. R. 141. 
 
 (d) ISalk. 189; 5 Mod. 133. 
 
 (1) Sed vide Duboise v. Van Orden, 6 Johns. 105. 
 
 (2) Pomeroy v. Bruce, 18 Serg. & Rawle, 188, where the breach stated was broader than the 
 covenant. 
 
BODY OR SUBSTANCE. — I. IN ASSUMPSIT. 335 
 
 merely stating that the plaintiff was disturbed is insufficient, for it should iv. us 
 be that he was legitimo modo disturbed in the -words of the covenant, or ^^'^' '^^ 
 otherwise the plaintiff should show by whom he was disturbed, and how(0 cause" of'* 
 (1) . So, where the declaration is upon a covenant for good title, it should action, 
 be shown that the person evicting had a lawful title (2) before or at the i. !„ ^. 
 time of the date of the grant to the plaintiff, and an averment that he had sumpsit. 
 a lawful title without this qualification, is too general and bad after ver- 5. The 
 diet, for it will be intended that the title of the person entering is derived ^l'j^^l°f 
 from the plaintiff- himself. But it seems that the plaintiff is under no 
 necessity of setting out the title of the person who entered upon him, be- 
 cause he is a stranger to it, it being considered sufficient to allege gener- 
 ally that he had a lawful title before or at the time of the lease or con- 
 veyance to the plaintiff (m) (3). 
 
 On the other hand it is injudicious unnecessarily to narrow the breach. 
 Thus, where the breach of covenant was assigned that the defendant had 
 not used a farm in an husband-like manner, " but on the contrary had com- 
 mitted waste ;" it was held that the plaintiff could not give evidence of the 
 defendant's using the farm in an unhusband-like manner, if such miscon^ 
 duct did not amount to vmsle, though on the former words of the breach 
 such evidence vrould have been admissible (w). The safest course is to 
 state a breach first in the words of the contract and then to superadd that 
 the defendant disregarding did so and so, showing any particular breaches 
 not narrowing or prejudicing the previous general breach, so that the 
 plaintiff retains the advantage of both ; and no inconvenience can result to 
 the plaintiff from laying the breach as extensively as the contract, for the »„ „ -, 
 plaintiff may recover though he only prove a part *of the breach as laid(o). C ^^o J 
 In assigning the breach of a covenant not to release a debt, or not to asr 
 sign without license, it must be averred that the release or alienation were 
 without license, though the burthen of proof of license would still be af- 
 firmatively on the defendant (p). 
 
 The breach in general should be certain and express, and a general state- 
 ment " that the defendant has not performed non perfarmavit " his agree- 
 ment or promise, is bad on demurrer, though aided by verdict (g')(4). A 
 distinction has been taken with regard to the degree of requisite certainty 
 between an action on a bond conditioned for the performance of covenants, 
 and an action of covenant(»-); however, no such distinction nowprevails(s). 
 Where to debt on bond conditioned that one B. R. should account for and 
 pay over to the plaintiffs as treasurers of a charity, such voluntary contri- 
 
 (0 2 Saund. 181 a; Com. Dig. Pleader, C. (o) 5 Taunt. 27; 6 East, 437; 4 M. & Sel. 
 
 47, 49. 349; ante, 316, 317. 
 
 (m) 2 Saund. 181, u. 10; Com. Dig. Plead- (p) Sir T. Jones, 229; Skin. 120; Vin. Abi 
 
 er, C. 47, 49. And see post, vol. ii. as to ao- Covenant, L. a. 43. 
 
 tions for not having good title, and how to (?) Jlnte, 833, note (i) ; Com Dig. Pleader, 
 
 state the breach, andM'Clel. Fft 647. C. 48; Skin. 844; 4 Mod. 188; 3 Lev. 319; 7 
 
 (n) 3 T. E. 307, 137; 5 Taunt. 95, per Price, 550. 
 
 Chambre, J. Query, if the breach had been (r) 1 Salk. 139; 1 Lev. 94. 
 
 laid under a videlicet, 5 Taunt. 95, ante, 348; (s) See 1 B. & P. 642; 1 Crom. & M. 89; 3 
 
 and see Earl Falmouth v. Thomas, 1 Crom. & Tvr. 38, 41, S. C. 
 M. 89; 3 Tyr. 38, 41, 50, S. C. 
 
 (1) Vide Greenby v. Wilcox, 2 Johns. 1; .Wait v. Maxwell, 4 Pick. 88; 2 Gill & Johns. 441. 
 
 (2) Vide Folliard v. Wallace, 2 Johns. 395. 
 
 (3) Id. ibid. Milner v. Horton, 1 M'Clel. & Young, 647. 
 
 • (4) Vide Smith v. Walker, 1 Wash. 135. In Syme v. Griffeu, 4 Hen. & Mun. 277, it was 
 held that a breach commencing with " whereas," and continuing by way pf reoital to the end 
 without any direct averment, was bad on general demurrer. 
 
336 OF THE DECLABATION. 
 
 rv- ™ butions as he should collect for the use of the charity, the defendants plead- 
 PABTS, c. g^ general performance ; and the plaintiffs replied, that B. R. had received 
 5tWy. The u diygps large sums amounting to a large sum, viz. j£100, from divers per- 
 aotion. sons for divers voluntary contributions," for the use of the said charity, 
 1. In as- which he had not accounted for or paid over, &c., it was held on special 
 sumpsit. demurrer that the replication was sufficiently certain (<)(1); for it is a gen- 
 5. The eralruleinpleadingjthatwherespecificationof every particular would tend 
 Contract *° great prolixity, a more concise manner of pleading it may be admit- 
 ted (m) ; and especially where the breach lies more -in the defendant's 
 than the plaintiff's knowledge less particularity is required (x) (2). 
 
 Two branches of the same specific stipulation cannot well be assigned 
 in one count ijj') ; for this would clearly amount to duplicity (3), which, 
 as we have already seen («), is a fault in every stage of pleading. The 
 exception introduced by statute as regards declarations is confined to 
 debt on bond conditioned for the performance of covenants, &c. : in 
 this case several breaches may be assigned in one count (a) (4). But at 
 common law also, where the defendant's contract was general, and several 
 distinct breaches thereof can in fact be committed, as if a tenant agree to 
 observe the due course of husbandry, which is obviously an engagement 
 capable of embracing numerous acts of good husbandry, and extending 
 over the whole tenancy, the declaration may then slate several breaches, 
 [ *337 ] as different violations of *the rules of good husbandry (6) (5) ; and the 
 Reg. Gen. JSil. T. 4 W. 4, though it forbids several counts on the same 
 cause of action, permits several breaches. 
 
 In point of form it has been usual in assumpsit to introduce the state- 
 ment of the breach, with the allegation that the defendant " contriving 
 and fraudulently intending craftily and subtly to deceive and defraud the 
 plaintiff, neglected and refused, &c." But this introduction is unnecessa- 
 ry ; the gist of the action of assumpsit being the injury sustained by the 
 plaintiff from the breach of promise, without regard to the defendant's in- 
 tention or fraud (c) . And in declarations against a peer the imputation of 
 fraud was always to be omitted (d). And the form of breach prescribed 
 
 (t) *8 T. R. 463; 1 B. & P. 640; 8 East,85; (z) Ante, 226. 
 and see 1 Price, 109; 6 Taunt. 45, 47; 7 B. & {a) Ante, 111. 
 C. 812; 1 M. & K. 497, S. C. (i) 4 East, 154; ■pott, vol. ii.; see the form 
 
 (it) Ante., 235. by a landlord against a tenant, 2 Chitty on 
 
 (x) 8 T. R. 462; 1 Lutw. 421; 8 East, 80; Pleading. 6tliedit. 191. 
 ante, 234. (c) 6 East, 443; Gilb. Hist. C. B. 65. 
 
 (y) Com. Dig. Pleader, C. 33; ante, 226; 1 \d) Imp. K. B.6th edit. 526. 
 
 Crom. & M. 89; 3 Tyr. 38, 41. 
 
 (1) Vide Hughes v. Smith, 5 Johns. 168. When the breach assigned was that the defendant 
 as under sheriff had collected monies to the amount of 1 000 dollars, which he had refused to ac- 
 count for and pay, and it was held sufficient. Vide Postmaster-General U. S. v. Cochran, 2 Johns, 
 515, and the oases cited, ante, p. 865. 
 
 (2) Vide Wileooks v. Nichols, 1 Price, 109. 
 
 (3) Vide Taft v. Brewster, 9 Johns. 825. 
 
 (4) Taft V. Brewster, 9 Johns, 334. El Vide Postmaster-General U. S. v. Cochran, 2 Johns. 
 415; Munro v. Allaire, 2 Caines, 828. 
 
 (5) The following paragraphs immediately follow in the text of the fourth edition — " Where 
 several breaches of the condition of a bond are assigned under the statute, it is usual to allege 
 that they are assigned by yirtue or in pursuance qf the statute, but this seems unnecessary, 
 statute being a public law, and the assignment of several breache s a matter of right without 
 the leave of the court." The note to which contains a reference to the following authorities — 
 Com. Dig. title Pleader, 2 V. 2.— 1 Hen. Bla. 375, 278.— 1 Wils. 219.— Cowp. 500, 501.— Andr. 
 108. 13 East, 8, Mr. Dnnlap has added in support of the text a reference to Munro v. Allaire, 
 2 Caines, 328. 
 
BODY OK aUBSTANCB.— I. IN ASSUMPSIT. 337 
 
 n+onflp.fl tlinl" in 
 
 PAKT3,&C. 
 
 by Trin. T. 1 W. 4, is a sufficient model, and obviously intended that in iv. its 
 
 future pleadings such useless verbiage should be omitted (e) 
 
 The omission of a breach cannot be aided or cured even by verdict °^°'y- ^^ ^ 
 (/). But the insufficiency of the breach will in general be aided by a action, 
 verdict, by the common law intendment that it is not to be presumed that i. in as- 
 either the judge would direct the jury to give, or that the jury would have sumpsit. 
 given the verdict without sufficient proof of the breach of contract (g-) ^-^^^ , 
 (1). Therefore, where in an action against husband and wife on thecov- (,"^flJl 
 enant of the wife whilst sole to perform an award, it appeared that the gj^j^aZ 
 award was made after the marriage, which was a legal revocation of the Breaches, 
 arbitrator's authority, and consequently the breach was improperly as- 
 signed in the non-performance of such award, it was decided that the 
 plaintiff was entitled to . recover ; because it appeared that the feme 
 had broken her covenant by the very act of marriage, which, though a 
 different breach to that assigned, was sufficient after verdict to support 
 the declaration Qh). And where in an action of replevin bond, the breach 
 prominently laid and intended to be charged, but which was defective, 
 was the non-return of the distress, the Court held after verdict that the 
 declaration might be upheld in regard to a breach by not prosecuting the 
 replevin suits with effect ; which, though not expressly declared upon, 
 was to be collected from the declaration (i). We have however seen 
 that in some instances a defective statement of a breach, as of a covenant 
 for quiet enjoyment, will be fatal even after verdict (k') (2). And if 
 one of two breaches, or part of a breach, be improperly assigned, leav- 
 ing a sufficient breach to support the count, the defendant *cannot demur [ *338 ] 
 to the whole (Z) : although if in such case the defendant plead, and gen- 
 eral damages be given upon the whole declaration, the judgment might 
 be arrested (to) (3). 
 
 A very sensible author has observed that since the Reg. Gen. Hil. T. 
 2 W. 4, has subjected the unsuccessful party to the costs thereof, it is 
 advisable when there has been a pari payment or part performance, ex- 
 pressly to admit the same on the face of the declaration, and thereby de- 
 prive the defendant of all pretence for pleading such part payment or per- 
 formance (n). 
 
 Whenever there has been a breach of contract, the plaintiff must neces- 6. The 
 
 damages. 
 
 (c) See post, voL ii. 440; 6 Taunt. 140; 1 Marsh. 495; ante, 333, 
 
 (/) Hob. 168, 233. 225. Sedqucere. 
 
 {g) Sir T. Jones, 125; 1 Salk. 140; 4 Mod. {I) 5 B. & Aid. 712; 1 D. & K. 361, S. C; 
 
 188 b.; Skin. 344; 5 East, 270, 271; Com. see 1 Saund. 285; 3 T. R. 374; 5 B. & Aid. 
 
 Dig. Pleader, C. 48; 1 Saund. 228, n. 1. Bad 652; 1 D. & R. 282, S. C. ; 6 East, 333; 11 Id. 
 
 breach when not cured by pleading over, 7 565; 8B. & C. 70. 
 
 Price, 550. (m) 6 M. & Sel. 9; 2 Saund. 171 a, note. 
 
 (A) 5 East, 270, 271. How corrected, &o. id. 
 
 (i) 5 B. & C. 284, 306; 8 D. & B. 72, S. (n) Bosanquet's Rules, 50, note 48; and 
 
 C. post, vol. ii. where see forms. 
 
 (fc) 2 Saund. 181, n. 10. And see 1 Sid. 
 
 (1) Weigley v. Weir, 7 Serg. & Rawle, 310. Vide Thomas v. Koosa, 7 Johns. 461 ; Harsel v. 
 M. Alexander, 3 Rand. 94. It is sufficient to allege that the defendant " has not paid said sum" 
 without alleging that he has not paid any part of it. Judson v. Eslava, MinoivS; 
 
 (2) Where it appeared from the plaintiff 's own showing, that the breach alleged could not 
 have taken place before the action was brought, it was held l>ad after verdict. Gordon v. Ken- 
 nedy, 2 Binn. 287. 
 
 (3) As to the proper mode of pleading where some of the breaches of covenant are not well 
 assigned, Wait v. Maxwell, 4 Pick. 87. 
 
338 
 
 OP THE DECLARATION. 
 
 pae' "& ^^"■'y ^® entitled to some Damages, and, however difficult it may be to 
 ' "■ ascertain the amount, the Court must give judgment for such damages, in 
 clu^'of^''^ ^^' personal actions (o). The damages, however, must be proximate and not 
 action. remote or depending upon a contingency, and therefore in an action for 
 1. In as- not replacing stock (p), it will be of no avail to state in the declara- 
 sampsit. tion that the plaintiff was prevented from completing an advantageous 
 6. The contract he had entered into (§). Such damages as may be presumed 
 amages. ^g^ggg^^^Hy jq result from the breach of contract, need not be stated 
 with any great particularity in the declaration (1). Therefore, in an ac- 
 tion for not accepting goods sold to the defendant, damages resulting from 
 a fall of the market price may be recovered under a special count, with 
 a general allegation of loss and profit, without averring that the value of 
 the goods was less at the time the contract was broken than when it 
 was made (r). But in other cases it is necessary to state the damage 
 arising from the breach of contract specially and circumstantially in order 
 to apprize the defendant of the facts intended to be proved, or the plain- 
 tiff will not be permitted to give evidence of such damage on the trial (5) ('2) . 
 And where the plaintiff seeks to recover special damage in regard to the 
 non-completion by third persons of contracts the plaintiff had made with 
 them, the names of such third persons should be stated (<). In some 
 [ *339 ] cases, where the plaintiff seeks to recover damages, he must *declare 
 specially, though he might have recovered the principal part of his demand 
 under a common count : thus, in an action against the vendor of an es- 
 tate, for not making a good title to or conveying the same, only the de- 
 posit money can be recovered under the count for money had and re- 
 ceived, and if the purchaser proceed for interest and expenses, he must 
 declare specially, stating such expenses and the loss arising from the not 
 having the use of the deposit money, &c. (m). And where a sum is named 
 as & penalty (x), the plaintiff may proceed for general damages, and may 
 recover them beyond the amount of the penalty (y). The damages should 
 be stated according to the facts of the case and evidence, but no incon- 
 venience will arise from the statement of the damage or injury being lar- 
 ger than the proof (3) : thus, in a declaration on a policy of insurance- 
 Co) 1 Dew's Pep. 207. Damages, and Sayer's Law of Damages; Chit, 
 (p) As to the damages in this action, 2 jun. Contr. 386, 840, &o. ; and see post as to 
 Taunt. 257 ; 7 Id. 14. the statement of damages in actions for lorls. 
 
 {q) Per Cur. in Parkins and Howard, K. (t) See 1 Saund. 243 c. note 5 ; 11 Price, 19. 
 
 B. Trinity Term, 1817. What are not dama- (m) See 4 Esp. Rep. 223; 1 B. & P. 306; 2 
 ges recoverable, see 8 East, 3; 1 Campb. 187; Bla. Rep. 1078; post, vol. ii.; 18 East, 98; 2 
 6 Taunt. 434. In an action for breach of a Bing. 4. 
 
 warranty, plaintiff may recover costs paid by (x) As to the distinctions between a pert- 
 Vim to a third person to whom he warranted; ally and liquidated damages, see 6 Bing. 141; 
 2 Marsh. 431; 7 Taunt. 158; and see Holt's Chit. jun. Contr. 336. 
 
 N. P. C. 43; 5Taunt. 247, 3 B. & P. 351. (y) 13 East, 348; 1 Holt, N. P. Rep. 44; 6 
 
 (r) 9 fe. & C. 145, 152. B. & C. 224, 9 D. & R. 369, S. C. 
 
 (s) As to damages in general, see Vin. Ab, 
 
 (1) The damages sustained are matter of evidence, and need not be alleged, nor are they 
 scarcely ever stated, but in a general manner. Barruso v. Maden, 2 Johns, 149. 
 
 (2) Partnall v. Howard, 6 Dowl. & Ryl. 442. Special damages, such as the law will not im- 
 ply from the facts stated, must be specially laid in the declaration. Ryerson v. Marseillis, 1 
 Harr. 450; 2 Greehl. Ev. § 264; Dickinson v. Boyle, 17 Pick. 78. 
 
 (3) Where the plaintiff claims more damages than on the face of the declaration appear to be 
 due, it will not vitiate, especially after verdict, for the amount of the damages being ascertained 
 by the jury, it is to be presumed they were assessed according to the proot Van Rensselaer v. 
 Plainer, 2 Johns. Cas. 18. 
 
BODY OR StJBSTANCE. — I. IN ASSUMPSIT. 339 
 
 stating a total loss, a partial loss may be recovered (z). Where it is ^^^^^^^^ 
 positively and expressly averred in the declaration that the plaintiff has ' ^^^ 
 sustained damages from a cause subsequent to the commencement of the g^„Jgof 
 action, or previous to the plaintiff 's having any right of action, and the action, 
 jury give entire damages, judgment would be arrested (1) ; but where i. in as- 
 the cause of action is properly laid, and the other matter either comes sumpsit. 
 under a scilicet, or is void, insensible, or impossible, and therefore it can- 
 not be intended that the jury even had it under their consideration, the 
 plaintiff will be entitled to his judgment (a) (2). The jury cannot give 
 more damages than are laid at the end of the declaration (6). And if 
 they should do so, the surplus should be remitted before judgment has 
 been entered (3). If the plaintiff have merely incurred liability to paj 
 costs without having actually paid the amount, the declaration sliould be 
 framed accordingly (c), and even noting and postages on a bill must be 
 declared for specially or cannot be recovered (ci). 
 
 The Common Counts in Assumpsit are frequently suf&cient without any The Com- 
 special count ; and even where the declaration contains a special count it "°"„;j ;„ 
 is in. general advisable to insert-one or more of the common counts. Al- Assump- 
 though the pleading rules, Hil. T. 4 W. 4, now prohibit the use of more sit. 
 than one count on the same cause of action, excepting that a count upon 
 an account stated is always admissible in addition to another count whether 
 ■special or common, but which still in prudence, as regards costs under 
 Eeg. Gen. Hil. Term, 2 W. 4, should *Lever in practice be added, unless [ *340 ] 
 there be adequate ground for expecting to prove it. Though it is a rule 
 that when there was an express contract the plaintiff cannot resort to an 
 implied one (e) (4), yet he may in many cases recover on the common 
 count, though there was a special agreement, provided it has been exe- 
 cuted (5) or completely performed (/). A common count used some- 
 times to save a verdict where the evidence varied from the special count ; 
 thus, if the plaintiff declared specially, as having built a house accord- 
 
 (2) 2 Burr. 904; 1 Bla. Eep. 198; Mar- (rf) 2 Crom. & J. 408. 
 shall on Insurance, 629; Sayer on Damages, (c) 2 T. R. 105,640; 3 East, 80,85; 6 T. 
 
 45; Tidd, 9th edit. 871. R. 325; 1 Stra. 648; 3 B. & P. 247. 
 
 (a) 2 Saund. 171, b. (/) See post, 347 to 349, and exceptions 
 
 (4) Tidd, 9th edit. 896. there stated. 
 
 (c) Pritchett v. Boevey, 3 Tyr. 949. 
 
 (1) Vide Gordon v. Kennedy, 2 Binn. 287. 
 
 (2) Shaw V. Wile, 2 Rawle,280, 
 
 (3) Tenant v. Gray, 5 Munf. 494; Harris v. Jaffray, 3 Har. & J. 546; Hoit v. Malony, 2 N. 
 Hamp. 322; Crist v. Hodges, 3 Dev. 203. 
 
 (4) Vide Richardson v. Smith, 8 Johns. 439; Bnrllngame v. Burlingame, 7 Cow. 93, 94; 
 Londregon v. Crowley, 12 Conn. 558. Where there is a special agreement to pay for goods or 
 services in any other way than in money, it must be specially declared upon. RaulettV. Moore, 
 1 Foster. (N. H.) 336. 
 
 (6) Indebitatus assumpsit will lie to recover the stipulated price due on a special contract, 
 not under seal, where the contract has been completely executed, so that only a duty to pay the 
 money remains. Perkins ji. Hart, 11 Wheat. 237; Sykes v Summerel, 2 Brown, 227; .Jewell v. 
 Shroeppel, 4 Cowen, 664; Causten v. Burke, 2 Har. & Gill. 295; Snyder v. Castor, 4 Teates, 
 853; Cochran v Tatum, 3 Monro, 405; Feeter v. Heath, 12 Wend. 477; May v. Wakefield, 7 
 Vermt. 228; Coursey v. Covington, 5 Har. & Johns. 45; Wood ». Gee, 3 M'Cord, 421; Badg- 
 leys). Bates, Wright, 705; Fowler J). Austin, 1 Howard, (Miss.) 156; Bomeiser v. Dobson, 5 
 Wharton, 398; Mattocks v. Lyman, 16 Vermont, 113; Ames v. Le Rue, 2 M'Lean,216; Ber- 
 
 trandi). Byrd, 6 Pike, 651; Brown 1). Ralston, 9 Leigh, 582; Carson v. Allen, 6 Dana, 396 
 
 and it is not in such case necessary to declare upon a special agreement. Bank of Columbia v. 
 Patterson, 7 Cranch, 299; Felton ». Dickinson, 10 Mass. 287; Sheldon d. ox, 5 Dowl. & Ryl 
 277; 9 Peters, S. C. 541; Baker k. Cotey, 19 Pick. 496; Pettier ■». Sewell, 12WendeU, 386. 
 
340 
 
 OF, THE DECLAEATION. 
 
 IV. 1T3 ing to an agreement, if he failed to prove that he had built it pursuant 
 PARIS, c. ^^ agreement, he might still ia some cases recover on the common count 
 caSse'oJ''^ for the work and labor actually done (g) (1). And where a bill of ex- 
 change, or promissory note, upon an improper stamp, had been taken in pay- 
 ment of a debt, the plaintiff was at liberty to resort to the common counts 
 appropriate to the original debt (A) (2), and which additional counts .is 
 now expressly permitted to be added in an action on a bill or note. He 
 may also ground his claim upon such counts, if applicable to the original 
 consideration, in cases where the bill or note has been dishonored, and the 
 defendant, when necessary, has had due notice (i). But where the de- 
 mand is founded upon a written agreement, which ought to be, but is not 
 stamped, plaintiff was not permitted to resort to an implied contract, in 
 
 action. 
 1. In as- 
 sumpsit. 
 Common 
 counts. 
 
 (g) See post, 348, 349. 
 
 (A) 1 East, 58; Chit, on Bills, 7th edit. 
 
 863, 366; Phillips on Ev. 5th edit. vol. i. 509. 
 (i) See post, 347. 
 
 (1) Where a party declares on a special contract, seeking to recover thereon, but fails in his 
 right so to do g,ltogether, he may recover on a general count, if the case be such that, suppos- 
 ing there had been no special contract, he might still have recovered for money paid, or for 
 work and labor done. Cooke ?j. Munstone, 1 New. Kep. 356; Tuttle v. Mayo, 7 Johns. 132; 
 Linningdale D. Livingston, 10 Johns. 136;Keyes». Stone, 5 Mass. 391. Or for use and oc- 
 cupation, (Perrine ». Hankinson , 6 Halst. 181,) or for money had and received, Sohillinger u. 
 M'Cann, 6 Greenl. 364. And although the plaintiff may resort to the general counts without 
 having attempted to prove the special agreement, yet in no case can he recover on the general 
 counts where the special agreement continues in force. Linningdale v. Livingston, 10 Johns. 
 37; Raymond v. Bearnard, 12 Johns. 274; Wilt v. Ogden, 13 Johns. 56; Jennings v. Camp. Id. 
 94; Felton v. Dickinson, 10 Mass. 287; Shepard v. Palmer, 6 Conn. 100; Speake v. Sheppard, 
 
 6 Har. & Johns. 81; Arnold v. Paxton, 6 J. J. Marsh, 505; Stevens v. Cushing, 1 N. Hamp. 
 17; Blair v. Asbury, 4 Porter, 435; Crammer v. Graham, 1 Blackf. 406; Cutwater ti. Dodge, 
 
 7 Cowen, 85; Porter v. Beltzhoover, 2 Harrington, 484; Ames v. Le Rue, 2 M'Lean, 216; 
 Londegron D. Crowles, 12 Conn. 558; Fowler ti. Austin, 1 Howard, (Miss.) 156; Morrisons. 
 Ives, 4 Smedes & Marshall, 652; StoUings v. Sappington, 8 Missouri, 118; Christy v. Price, 
 7 Missouri, 430; Charles o. Dana, 2 Shepley, 3S3; Ames v. Sloat, Wright, 577. 
 
 Indebitatus assumpsit will not lie where the agreement is not for payment of money, but for 
 the d6ing of some other thing; the action in such case must be special, Spratt v. M'Kinney's, 1 
 Bibb. 595; Brookes v. Soott, 2 Munf. 344; Cochran d. Tatum, 3 Monro, 405; Snedioor d. Leaoh- 
 man, 10 Alabama, 330; Burrall o. Jacot, 1 Barbour, 165. Where goods are sold and delivered 
 on a special contract, that the fiuyer shall pay therefor in town orders payable at a future day, 
 and he fails to procure the orders, the seller cannot maintain indebitatus assumpsi^for the goods 
 before the time, when the orders were to be payable, bos expired. Before that time, bis only 
 remedy is by an action for breach of the special agreement. Hunneman v. Grafton, 10 Metoalf, 
 454. See Allen v. Ford, 19 Pick. 217; Yale v. Coddington, 21 Wendell, 175; Martin v. Fuller, 
 16 Vermont, 108. And where the plaintiff declares specially he cannot recover on evidence ap- 
 plicable to the general counts only; such evidence being objected to. Davenport v. Wheeler, 7 
 Cow. 231; HoUinshead v. Maetier. 13 Wend. 276. In that case it was held, that if a man con- 
 tract to work by special contract so far as the work was done according to the contract, the com- 
 pensation should be according to the contract; but as to that part wheie the contract was aban- 
 doned, he should recover according to the work done as if no contract had existed. The same 
 rule was adopted by the court in Dubois v. The Deleware and Hudson Canal Company, 4 Wend. 
 289. See also Merrill v. The Ithaca & Oswego Rail Road Co., 16 Wend. 586. See Chitty Cont. 
 (5th Am. ed.) 666 n. 1. 569 n. 3. 
 
 (2) So in an action against two defendants upon a promissory note, if the note be void as to 
 one of them, the plaintiff may recover against both on the general counts. Wilkins v. Reed, 6 
 Greenl. 220. A promissory note is evidence under the money counts in an action by the indor- 
 see against the maker. New Jersey B. Co. v. Myers, 7 Halst, 141. So in an action against the in- 
 dorser. Ellsworth v. Brewer, 11 Pick. 316; State Bank v. Hard, 12 Mass. 172; Hodges a. Hol- 
 land, 16 Pick. 395; Remsey v. Duke, 1 Morris, 385; Knight o. Fox, 1 Morris, 305; King ». 
 Wall, 1 Morris, 187; Goodwin v. Morse, 9 Metcalf, 278; Moore ». Moore, 9 Metoalf, 417. See 
 Wild V. Fisher, 4 Pick. 421 ; Ramsdell v. Soule, 1 2 Pick. 126 ; Webster v. Randall, 19 Pick. 13 ; 
 even though it was payable in foreign bills. Young ». Adams, 6 Mass. 182; or if the mak- 
 er signed merely for the accomodation of the payee. Cole v. Cushing, 8 Pick. 48; and although 
 it does not purport to be for value received. Townsend v. Derby, 8 Metcalf, 863. So a check 
 on a bank, in which the drawer has no funds, may be given in evidence under the money counts, 
 in an action against the drawer, without showing presentment. Cushing v- Gore, 15 Mass. 69. 
 See Ellis i.. Wheeler, 8 Pick. 18; Ball v. Allen, 15 Mass. 433. 
 
BODY OR StJBSTANCK. — I. IN ASSUMPSIT. 840 
 
 order to avoid the production of such express agreement (A) : and if there ^^'J^™^ 
 were no privity between the parties independently of the special contract, ' ' 
 the common counts would be of no avail (0 . The entering of a nolle pro- °*^J^ J"* 
 sequi to a special count would not bar a recovery upon a common count action, 
 for the same demand (m). l. Inas- 
 
 Common counts in an action of assumpsit are founded on express or sumpsit. 
 implied promises («) to pay money in consideration of a precedent and Common 
 existing debt. In general the consideration must have been executed, not """^ *• 
 executory and the plaintiff must have been entitled to payment in money, 
 not merely ti^the delivery of a bill of exchange or of goods, unless the 
 time for payment of such bill has expired (o). 
 
 It has been said that the common counts will not lie in any case in 
 which debt is not sustainable (io)(l;. This may be true as a general rule, 
 but there are some exceptions. Thus debt on simple contract could not 
 be maintained against an executor, to recover a debt ■ which was *due [ *341 ] 
 from the testator(<?),(but which was altered by 3 & 4 W. 4, e. 42, s. 14); 
 nor can debt be brought for the recovery of part of a debt payable by in- 
 stalments, the whole of which have not accrued due (r) ; bui assumpsit 
 may be maintained in both cases. It has also been doubted whether debt 
 lies on a quantum meruit count (s) ; but certainly such count was suffi- 
 cient wlien framed in assumpsit. 
 
 The common counts were of four descriptions. 1st, The indebitatus 
 count. 2dly, The quantum- meruit. 3dly, The quantum valebant ; and 
 4thly, The account stated. 
 
 The indebitatus assumpsit count (t), since the Reg. Gen. Hil. Term, 4 JndebUatut 
 W. 4, states, that " the defendant, on," &c., (a named day before the is- "^Jj""/"' 
 suing-of the first process in the action) (m), was indebted to the plaintiff in 
 a named sum of money, for, &c. [as for use and occupation, or for real 
 property sold (.^), or goods sold, or for personal services, or for money 
 lent, paid, or had and received, or for interest, or for some other pre- 
 existing debt on simple contract, incurred at the defendant's request ;]*and 
 that being so indebted, the defendant, in consideration thereof, then prom- 
 ised the plaintiff to pay him the said sum of money on request " (2). 
 
 {k) 2 B. & P. 118; 3 Esp. Rep. 213; 1 N. (s) .ante, 109 note (q). 
 
 R. 273; 2 Marsh. 273. If the plaintiff can (0 See the form, vol. ii. 
 
 make out his case without producing a written (») The exact time is not material in the 
 
 agreement, or disclosing that there is one, the common counts; bat where there is a special 
 
 defendant cannot produce it unless it be stamp- count on a bill of exchange, &c. preceding the 
 
 ed, see 6 Bin". 332. common counts, it is usual and proper in the 
 
 {I) 3 M. & Rel. 173; 3 Campb. 101; Chitty first common count to lay the day after the bill 
 
 on Bills, 7th ed. 364; Phillips on Ev. 5th ed. was due, or other special cause of action was 
 
 Yol ii. 109. complete ; and in the subsequent counts and in 
 
 (m) M. & M. 311. the breach to refer to the last mentioned day; 
 
 (n) There is not, in pleading, any diflter- 1 Wils. 33. Venue is now to beomitted intlie 
 
 ence between an exprees and implied promise, body of the count, but {t'meis still toberepeat- 
 
 (0) Post, 346. . ed to every traversable allegation, or the de- 
 (p) Salk. 23; 2 Lev. 153; Garth. 276. fendant may demur specially. 
 
 Iq) Ante, 113. (x) Sed quare if it lies for real property 
 
 (r) Id. sold, &c. See post, 343, 344. 
 
 (1) Where there is a subsisting unexecuted agreement indebitatus assumpsit will not lie. 
 StoUings V. Sappington, 8 Missouri, 118; Christy d. Price, 7 Missouri, 430; Chambers v. King, 
 8 Missouri, 517; Charles o. Dana, 2 Shepley, 883; Ames v. Sloat, Wright, 577; Hall«. Blake, 
 Wright, 489. Where damages are claimed for the breach of a special contract the declaration 
 must count on the contract Royalton v. R. & W. Turnpike Co, 14 Vermont, 311; Mann ». 
 liocke, 11 N. Hamp. 246. 
 
 (2) A declaration in indebitatus assumpsit, though it aver neither time, nor plaoe, nor any 
 request to pay, is good on general demurrer, Eeyser v. Shafer, 2 Cowen, 437. 
 
 Vol. I. 47 
 
341 OF THE DECLARATION. 
 
 IV. ITS The quantum meruit count, instead of stating that the defendant was 
 PAET3 &o. jii(jebted to the plaintiff in a certain sum of money for work, &c., as in 
 5thiy. The ^Jjq indebitatus count, was in this form, " and whereas also, afterwards, to 
 action." "^'*> °"' ^^- ^'^ consideration that the plaintiff', at the request of the defend- 
 1. Inas- 3,nt, had done work, &c. (^staling the subject matter of the debt according 
 sumpsit. to the fact, and usually as in the indebitatus count), he the defendant 
 quantum promised the plaintiff to pay him so much money as he therefore reasonor 
 meruit ^ly dgggfygd to have ;" and the count then averred, " that the plaintiff 
 therefore deserved to have a named sum, whereof the defendants after- 
 wards, to wit, on, &c. aforesaid, had notice." * 
 Quantum The quantum valebant count was in general confined to the case of a 
 valebant gi^im for goods sold, and instead of the quantum- meruit, stated that " the 
 defendant promised to pay so much as the goods were reasonably luorth ;" 
 and concluded with a corresponding averment that they were reason- 
 ably worth a named sum, and that the defendant had notice there- 
 of. In other respects this count was similar to the quantum meruit. 
 Although Sir William Blackstone mentions the quantum meruit and vale- 
 [ "342 ] bant as useful, and as then to have been *supposed necessary precautions to 
 avoid the risk of the plaintiff's not being able to prove an agreement to 
 pay & fixed price ; the opinion of the profession has long been that such 
 quantum meruit and quantum valebant counts are wholly unnecessary, and 
 that under an indebitatus count in assumpsit or debt the plaintiff may re- 
 cover, although there be no evidence of a fixed price, and Reg. Gen. Trin. 
 T. 1 W. 4, prescribing forms of indebitatus counts may be considered as 
 virtually abolishing the quantum meruit and valebant counts. 
 Account The account stated still retains its original utility. It alleges, that " the 
 stated. defendant on a named day, month, and year, accounted with the plaintiff 
 of and concerning divers sums of money before then due from the defend- 
 ant to the plaintiff, and then in arrear and unpaid, and that upon such 
 accpunting, the defendant was then found to be in arrear to the plaintiff 
 in a named sum, and that being so found in arrear and indebted, the de- 
 fendant in consideration thereof then promised the plaintiff to pay him the 
 same on request." 
 
 The Com- Upon these counts the Common Breach was, " Yet the said defendant, 
 ""'" , not regarding his said promises and undertakings, but contriving and 
 fore Reg craftily and subtly intending to deceive and defraud the said plaintiff in 
 Gen. Trin. that rcspect («/), hath not (although often requested so to do) (z), as yet 
 T. 1 w. 4. pj^jd to thg said plaintiff the same sums of money or any part thereof, but 
 hath wholly neglected and refused, and still neglects and refuses so to do, 
 
 to the plaintiff's damage of £ (a named sum), and thereupon he 
 
 brings his suit; &c." This breach is necessarily varied in actions by and 
 
 against surviving partners, husband and wife, executors and assignees, 
 
 &c. (a). The form prescribed by Reg. Gen. -Trin. T. 1 W. 4, is even 
 
 still more concise (a). 
 
 Oftheap- Formerly these general counts for work, goods sold, &c. were not in 
 
 thSe*'"" ^se ; and Lord Holt is stated to have said that he was a bold man who 
 
 counts in first Ventured' on them ; but they are now much more frequent than the 
 
 general, special counts, when the action is for a Common debt or for any money 
 
 (V) Ante, 336, 837. Wils. 88; ante, 381. 
 
 \z) The printed forms generally contain a (a) See onic, ZZ2;pott, 859; and pott, vol. 
 special request, but this is unnecessary, 1 ii. 
 
BODY OR SUBSTANCE — 1. IN ASSUMPSIT. 342 
 
 demand (p). It is not sufficient to state merely that the defendant " was iv. its 
 indebted to the plaintiff in a certain sum, and promised payment (1) ; it '^'^'^^ "• 
 must be shown what was the cause, or subject-matter or nature of the debt ; ^^^g-^'^f**® 
 as that it was for worlc done, or for goods sold, &c. (c). But it is not ne- action, 
 cessary to state the particular description of the work done (2), or goods i. in as- 
 . sold, &c. ; for the only reason why the plaintiff is bound to show in what aumpsit. 
 respect the defendant is indebted, is, that it may appear to the Court that it Common 
 is not a debt of record or *specialty (3), recoverablein anotlier form of action, 'r'i^i^^Q -i 
 but only on simple contract ; and any general wofds by which that may ap- L J 
 
 pear are sufficient {d). Unnecessary statements, such as the local situation 
 of the premises, in a count for use and occupation, should be avoided, as a va- 
 riance might be fatal (e). Several distinct debts due in respect of different 
 contracts not under seal, of the same or a different nature, as demands for 
 work, and debt for goods, monies lent, &c. might always be included in ' 
 
 one count of this description ; and the plaintiff would succeed pro tanto 
 though he only prove one of such contracts (/) (4). If one of the sub- 
 ject-matters be improperly stated, the defendant should not demur to the 
 whole, but only to the insufficient part of the count or declaration {g). 
 Under an indebitatus count the plaintiff may recover what may be due to 
 him, although no specific price or sum was agreed upon ; and therefore it 
 has been observed that the quantum meruit and quantum valebant counts 
 are in no case necessary, and should in many cases be omitted, to prevent 
 unnecessary prolixity and expense (A). It was laid down, that undor a 
 quantum meruit count the plaintiff could not recover, if the goods were 
 sold, or the work done, &c. at a certain price (i). 
 
 In each of these counts, upon an executed consideration, except that 
 for money had and received, and the account stated, it is necessary to 
 allege that the consideration of the debt was performed at the defendant's 
 request, though such request might in some cases be implied in evidence 
 (k~) ; and it must also be stated that the defendant promised to pay a 
 specific sura, or so much as the plaintiff reasonably deserved, averring in 
 the latter case what sum is due (/)• As the common counts are so useful 
 in practice, it may be advisable concisely to consider the particular appli^ 
 cdbility of each. 
 
 The common counts relating to Real Property most frequently occur Common 
 where the action is brought, either for the recovery of a sum agreed to be to^Beoz" 
 
 Propzrty 
 
 (6) 2 Stra. 933; 1 Saund. 269, u. 2; 2 Id. (e) See ante, 276. ™ partiou- 
 
 122, n. 2; .350, „. 2; 374, n. 1; Fitzg. 302; {/) 2 Saund. 122, note 2; see the form '*''• 
 
 Com. Dig. Assumpsit, H. 3; 13 East, 107. pozt, vol. ii. 
 
 (c) % Saund. 350, n. 2; Cro. Jac. 245. {g) 2 Cromp. & Jerv. 418; 2Tyr.468. 
 
 {d) Skin. 217, 218; 2 Saund. 250, note 2, (A) 2 Saund. 122 a. note 2. 
 
 373; 2 Lev. 153; Garth. 276; 2 Wils. 20; 1 (i) IStra. 648; but see 6 Taunt. 108. 
 
 Mod. 8; 1 Sid. 425; Bac. Ab. Assumpsit, F.; [k) Post, 3S0; ISaund. 264, note 1; 5 M. 
 
 Ld. Raym. 1429; By special custom even the & Sel. 446; 9 B. & C. 543; 4 M. & K. 448, 
 
 cause of the debt need not be shown. 2 Stra. S. C. 
 
 720; 1 Saund. 68, note 2. (Z) 2 B. & P. 321. 
 
 (1) Beauohamp v. Bosworth, 3 Bibb. 115; Chandler v. State, 5 Har. & Johns. 284: Maurv 
 V. Olive, 2 Stewart, 472. ' ' 
 
 It is however, sufficient, by long practice, in Massachusetts to state the indebtedness « ac- 
 cording to account annexed " to the writ, the schedule supplying the allegation Of consideration 
 Rider v. Bobbins, 13 Mass. 284. 
 
 (2) Lewis V. Culbertson. 11 Serg. & Eawle, 49. Vide Edwards v. Nicholls, 3 Day 16 
 
 (3) 11 Scrg. & Rawle, 49. ■ J-' ^"• 
 
 (4) Ace. Bailey ». Freeman, 4 Johns. 289. But a demand/or certain lands sold and conviv- 
 td, is too general, and cannot be joined with the common counts, Nelson v. Swan, 13 Johns. 483. 
 
348 OP THE DECLARATION. 
 
 ^^' "1 V^^^ ^s the price or value of an estate sold by the plaintiff to the defend- 
 PABTs, 0. g^jj^^ jjj. |.Q recovei- the rent of premises holden by the defendant as the 
 caule"of ''^ plaintiff's tenant. 
 
 action. If i"^ the deed by which a freehold or leasehold estate is conveyed, there 
 
 1. In as- be an express or even implied covenant by the defendant to pay the price, 
 
 sumpsit. of course assumpsit cannot be maintained (m). It has been doubted 
 
 Common whether the indebitatus counts can be sustained for the price, *although 
 
 r"*^44 1 ^^^® estate has been conveyed, and there be no covenant to pay the money 
 
 •- J (w). But these counts are sometimes adopted in practice (o), and may 
 
 properly be sustained (p) (1). Although it may be judicious to insert a 
 
 ■ special count (2). If the objection to the common counts be founded on 
 
 the notion that the demand savors of the realty (g), it might be better to 
 
 declare in debt (3). ' 
 
 The common count for use and occupation is of very frequent occur- 
 rence (»■). It is founded on the statute (s), which enacts, " that it shall 
 be lawful for a landlord, when the agreement is not by deed, to recover a 
 reasonable satisfaction for the tenements held or occupied by the defend- 
 ant, in an action on the case for the use and occupation of the premises ;" 
 and if in evidence on the trial, any parol demise or agreement, not by 
 deed, whereon a certain rent is reserved, shall appear, the plaintiff shall 
 not be nonsuited, but may use the same as an evidence of the quantum 
 of the damages to be recovered (4). 
 
 The object of the statute was the removal of the difficulties experienced 
 by landlords in declaring at common law for rent ; the statute remedies 
 this evil but does not entitle a landlord to recover rent in' cases in which 
 he had not at common law a right to recover it. It affects only the mode 
 of declaring (i). 
 
 The effect of the statute is to render the commom counts sufficient al- 
 though there be a formal written agreement in all cases in which there is 
 not a demise by a lease or instrument under seal. In the latter event cove- 
 nant or debt is the remedy (u) (5). These counts may be supported, if 
 there has been a legal tenancy, although the defendant to whom the premr 
 ises were let, did not himself occupy them, but let them to another (.r) ; 
 
 (m) Ante, 103. agreement 8 Esp. 312; 1 New Eep. 272, Parol 
 
 («) Per Lord EUenborough, James u. Shore, agreement to take on terms of a former written 
 
 Sittings at Westminster after Michaelmas agreement, the latter must be stamped, 7 B. & 
 
 Term, 1816; Stirling, attorney for the plain- C. 625. In general it suffices if plaintiff can 
 
 tiff; and see 3 Tyr. 963. make out his case without disclosing that there 
 
 (0) See the forms, pod, vol. ii. was a written agreement. In such case de- 
 (p) See observations in Halles v. Bnndel, 3 fendaut cannot produce it unstamped, 6 Bing. 
 
 Tyr. 963. 332. 
 
 (q) See ante, 106. (s) 11 Geo. 2, c. 19. 
 
 (r) See in general Chit. jun. on Contracts, {l) 5 B. & C. 332, 333; 8D. & R. 67, S. C. 
 106; 5 B. & C. 333; 8 D. & R. 67. S. C; posf, (k) Ante, 10.5. 
 
 vol. ii. As to the stamp, if there be a written (i) 8T. R. 327. 
 
 (1) Siltzell V. Michael, 3 Watts & Serg. 329. 
 
 (2) But see 11 Serg. &Rawle, 50, that the declaration ought to lay the contract strictly. And 
 see Weigley v. Weir, 7 Serg. & Rawle, 311, and Codmau ». Jenkins, 14 Mass. 98. 
 
 (3) See ante, 104 in note; Butler v. Lee, 11 Alabama, 885. 
 
 (4) In Egler v. Marsden, 5 Taunt. 25, which was an action of debt for use and occupation, 
 GiBBs, J., says, — "This is not an action on the statute 11 G. 2. o. 19. The meaning of that 
 act was, you may bring an action upon the case, and although it shall appear that there was a 
 contract under a certain rent reserved, yet you shall recover a reasonable compensation for the 
 use of that which you go for." - 
 
 (5) See ante, 106, in note; Gage w. Smith, 14 Maine, (2 Shepley.) 466; Blume v. M'Clur- 
 ken, 10 Watts, 880. 
 
344 
 
 BODY OR SUBSTANCE.— IN ASSUMPSIT. 
 
 iltVinncrln tTlPi nrftm- 
 
 FAUI3, &0, 
 
 or allowed his servants only to inhabit them {y') ; or although the prem- ^^- "s 
 
 ises were destroyed by fire, or otherwise rendered uninhabitable (z) be- 
 fore the rent accrued due. It suffices if there were a constructive legal ^^J^^^ * 
 possession, provided there were a holding or tenancy (a) (1). And it action, 
 lies against a tenant who holds over after the expiration of a demise by \, in as- 
 .deed, to recover rent accruing due after the end of the term (6). But a sumpsit. 
 husband cannot be sued alone for the use and occupation of premises by ^°^^'^°° 
 his wife dum sola ; as it cannot *be said that she occupied at his request f.""" 'r -, 
 (c). The mode of describing the premises is pointed out in the second L ^'^'^ i 
 volume (d). 
 
 The indebitatus count may also be brought to recover a remuneration 
 for the use and occupation or enjoyment of & fishery, a water-course (e) 
 on a pew, and for tolls, &c. (/) (2) or other incorporeal hereditament ; 
 although in strictness, as being incorporeal matters, there could net have 
 been a sufficient demise or contract otherwise than by instrument un- 
 der seal (^g). So indebitatus assumpsit lies for the antecedent use and 
 occupation of a messuage, together with incorporeal hereditaments, or of 
 the latter alone, although a special count, setting out a contract for let- 
 ting the same, would be void, because not under seal, and therefore inva- 
 lid at common law (g"). 
 
 The common indebitatus count, to recover the price or value of goods Goods sold. 
 sold by the plaintiff to the defendant, states, that the defendant was indebt- 
 ed to the plaintiff for goods, chattels, and effects, by the plaintiff sold and 
 delivered to the defendant " at his request." 
 
 It seems that the price or value of fixtures and perhaps crops sold, may 
 be recovered under the common count, provided there be inserted therein, 
 besides the word goods, the terms fixtures, crops, chattels, effects, &c. (A). 
 It is, however, usual to frame the count differently where the price of fix- 
 tures (i) or crops (A) (3) is sought to be recovered. If cattle, were sold, 
 the word should be introduced into the count, though the word chattels, 
 which includes animate as well as inanimate things, would suffice. Where 
 an agreement between an out-going and in-coming tenant was that the lat- 
 ter should buy the hay, &c. of the former upon the farm, allowing the ex- 
 pense of repairing the fences, &c. and that the value of the hay, &c. and 
 of the repairs, should be ascertained fty third persons, it was held that the 
 balance settled to be due, that is, the value of the goods, allowing for the 
 repairs, was recoverable upon the count for goods sold (/). Upon one 
 
 (y) 16 East, 33. (g) Bird v. Higginson, 1 Har. Rep. 61. 
 
 (z) 4 Taunt. 45; that is if the landlord (A) Post, vol. ii. See 7 Taunt. 188; 2 
 
 were not bound to render them habitable, see Marsh. 495, S. C. The words "effects," \a- 
 
 R. & M. 268; 4 C. & P. 65. eludes " fixtures," 1 B. & Aid. 206; and see 1 
 
 (ff) 6 Bing. 206. Crom, M. & Ros. 266, as to "goods, and 
 
 (6) 4 B. & C. 8; 6 D. & R. 42, S. C. chattels, fixtures and effects," and import of 
 
 (c) 1 B. & B. 60. those terms. 
 
 (rf) The situation of the premises need not (t) Id. 43, 187, 185. 
 
 be shown. As to a variance in stating the (k) Id. 44, 185. See 1 B. & P. 397; 3 B. 
 
 parish i/l. and ante, 276. C. 357, 364; 4 M. & R. 465, S. C. ; 9 Id. 561: 
 
 (e)4B. &C.8; 6D.&R.42,S.C. 4 M. & R. 224, S. C. 
 
 (/) See the forms and notes, post, yol. a., (I) 12 East, 1. 
 and ante, 101. 
 
 (1) See ante, 106 in note; Beach v. Gray, 2Denio, 84. 
 
 (2) General indebitatus assumpsit lies for tolls. I'roprietors of Quinov Canal v. Newoomb 
 7 Metcalf, 276. r ^ , 
 
 (8) See Lewis v. Culberaton, 11 Serg. & Rawle, 48. 
 
345 OF THE DECLARATION. 
 
 IV. ITS count for goods sold in the common form, the prices of different goods sold 
 PABT3, 0. ^^ different times may be recovered (m). 
 
 ^^is' f''* ■'■'^ order to maintain a count for goods sold and delivered, it is essential 
 action. that the goods should have been delivered to the defendant or his agent or 
 1. In as- to a third person (1), and credited by the plaintiff, at the request of the dc- 
 sumpsit. fcndant, or that something equivalent to a delivery *should have occurred 
 [ *346 ] (n), and if not delivered but still on premises of vendor though packed iu 
 boxes furnished by purchaser, plaintiff would be nonsuited, for he should 
 have declared for goods bargained and sold or specially (o)(2). Where a 
 contract was made between A. and B., whereby A., having a quantity of 
 apples, agreed to sell his cider to B. at a certain price per hogshead, to be 
 delivered at T. at a future time, the cider to be manufactured by B. on 
 A.'s premises ; and A. delivered a quantity of apples to B.'s servant ; 
 but before the time for delivery of the cider it was seized and sold by the 
 excise, in consequence of 5.'s default ; it was held, that as the delivery 
 at T. thus became impossible, B. was liable on a count for goods sold and 
 delivered (/>). This count may also, it seems, be maintained where goods 
 have been delivered on the terms of sale or return, and have not been re- 
 turned within the time agreed upon, or within a reasonable time (9). But 
 where A. sold beer to B. in casks, giving him notice that unless he re- 
 turned the casks in a fortnight, he would be considered as the purchaser, 
 it was held by Lord Ellenborough that B. was not liable for the. value of 
 the casks retained by him, as for goods sold and delivered, but only upon 
 a special count (r). Where a defendant by fraud induced the plaintiff to 
 sell goods to a third person, who was insolvent, and then got the goods 
 into his own possession, it was held that he was liable upon the common 
 count (s). But not if by fraud a sale on credit was obtained, and which 
 credit has not expired (^). 
 
 The common counts for goods sold cannot be maintained, and it is 
 necessary to declare specially in the folloiving' cases. 
 
 1st. If the sale were not to the defendant, but to a third person, and 
 the defendant were only liable collaterally, that is, in case the vendee did 
 not pay (m) (3). And in an action against a broker acting under a del 
 credere commission, to recover the price of goods sold by the defendant 
 for the plaintiff, the declaration should, it seems, be special (a;)(4). 
 
 2dly. In general, these counts cannot be supported where the plaintiff 
 was to be paid for his. goods, not in money, but by the delivery of other 
 goods (7/) (5). But if the contract be for payment partly in money and 
 
 (m) 2 Saund. 121, 2, note. T. & S. 28. 
 
 (n) 8 T. R. 322; 2 B. & .Aid. 755. (0 Ferguson v. Carrington, 9 B. & Creg. 
 
 (0) Boulter v. Arnott, 3 Tyrw. 267. 59; Strutl v. Smith, 1 Cr. M. & R. 812. 
 (p) 5 B. & C. 628; 8 D. & R. 403, S. C. (u) 1 Saund. 211 a, b; 2 Campb 215. 
 
 (}) Peake, R. 56; see 6 B. & C. 628; 2 (x) 7 Taunt, 658; 1 Moore, 279, S. C. See 
 
 Bing. 4. the special count and note, post, vol. ii. An 
 
 (rj 3 Stark. R, 39. indebilntus count by the broker for his del 
 
 (s) 3 Tiiunt. 274; 1 B. & C. 101; see 3 creifere commission is good, at least after ver- 
 
 Campb. 352, and 4 Taunt. 189, that in general diet, 8 Taunt. 371 ; 2 Moore, 420, S. C. 
 
 there must be a contract of sale. An executor, (y) 1 Hen. Bla. 287; Holt, C. N. P. 179; 3 
 
 when liable upon an implied contract to pay Campb. 362. 
 
 funeral expenses in burying the testator, 8 
 
 (1) Porter v. McClure, 15 Wend. 189. 
 
 (2) See Edwards v. Wiggin, 11 Shepley, 505; Merrill v. Parker, 11 Shepley, 89; Hague*. 
 Porter, 3 Hill, 141. 
 
 (3) Johnson v. Clark, 5 Blackf. 564. 
 
 (4) See Ayres v. Sleeper, 7 Metcalf, 45. 
 (6) See Strong v. Wataons, Wright, Z"" 
 
BODY OR SUBSTANCE. — I. IN ASSUMPSIT. 
 
 *347 
 
 partly in goods, and the latter are delivered, and the plaintiff seeks to ^'J^^™^ 
 recover the money only, he may declare on the common *count for goods '' 
 sold (2). And where the defendant agreed to sell to the plaintiff three ^^„fg J*"® 
 unfinished houses, and to finish them within a certain time, and the plain- action, 
 tiff agreed to pay for them by the delivery of cement at a fixed price, higher 1. in as- 
 than the usual price, and the defendant did not complete the houses within sumpsit. 
 the time, and afterwards said he had sold one of them to a third person. Common 
 Lord Tenterden, C. J. said, that the common count for cement sold and °°"'' ^" 
 delivered was sufficient, the defendant having broken the contract and dis- 
 abled himself from completing it, but he directed the jury to give only the 
 ordinary price of cement (a). 
 
 3dly. If the goods were to be paid for by a bill of exchange or promissory 
 ijote, and the defendant has refused to give it, the declaration should be 
 special (6) : butafter the expiration of the credit, or time during which the 
 instrument was to be current, the common count will be sufficient (c) (1). 
 And this count is sustainable, although the bill had been given, and the 
 plaintiff had endorsed it away and was not the holder at the time the action 
 was commenced, provided the defendant dishonored the bill, and the plain- 
 tiff had it in his possession at the time of the trial (^d). If the bill be lost 
 before or after it was due, no action for the price of the goods sold can in 
 general be maintained (e). 
 
 4thly. If there have been no delivery of the goods, even the count for 
 goods bargained and sold (not showing a delivery) cannot be maintained, 
 unless it appear that there has been a complete sale and the property in the 
 goods had become vested in the defendant by virtue of such sale, and an 
 actual acceptance of the commodity by the defendant (/). The property 
 is not vested in the defendant if the goods, being part of a larger quantity 
 are not separated therefrom, and something remains to be done to distin- 
 guish them and ascertain their quantity, or number, or the amount of the 
 price. This rule has been already considered (g-). Nor is the property 
 in goods vested in the defendant so as to render the common count for 
 goods bargained and sold sufficient, unless the article has been finished, 
 and specifically appropriated and set apart for the purchaser, and he has 
 assented thereto (A). In these cases the declaration should be framed 
 specially on a contract for not accepting the goods, or for refusing to com- 
 plete the bargain (i) (2) and in general, where the contract is not sub- 
 stantially for the sale of goods, but is rather for work and *materials, the [ *348 ] 
 value even of the latter is not recoverable upon a count for goods sold (k) ; 
 
 (z) 3 B. & C. 420; 5 D, & K. 277, S. C. C. ; 6 Id. 398; 9D. & R. 298, S. C; 8 B. & C. 
 
 (o) Baines o. Payne, December, 1828, sit- 277; 2M. & R. 292, S. C. 
 
 tings at Westminster. (»■) jlnte, 148. 
 
 (6) Strut I). Smith, 1 Cr. M. & R. 312. (A) Id. and supra, n. ( / ) ; 8 B. & C. 277- 
 
 (c) 4 East, 147; 9 /d. 498; 13 /d. 98; 2 3 M. & R. 292, S. C; 9 B. & G. 73. 
 
 Marsh. 496. (i) Atkinson v. Bell, 8 B. & (,'res. 277; 
 
 {d) I'M. &P. 223; 4 Ring. 454, S. C. cited in Laythrop v. Bryant, 1 Bine. N C 
 
 (e) 3 B. & B. 295; 7B. & C. 90; 9 D. &R. 430. B • ^■ 
 
 ^^^' S- ^- (ft) 1 Marsh. 581; 6 Taunt. 324, S. C- 9 
 
 (/) 5 B. & C. 857, 865; 8 D. & R. 693, S. B. Vc. 78. 
 
 (1) Biokham v. Irwin, 3 Yates, 66; Hanna v. Mills, 21 Wendell, 90; Johnson v. Smith An- 
 then, N. P. 60; Yale w. Coddington, 21 Wendell, 175; Man. and Mech. Bank v. Gore 15 Mass 
 7S; Boardman v. Gore, 15 Mass. 331; all cited and the point stated in note, ante 107- Hunne" 
 man v. Grafton, 10 Metcalf, 454; Allen ». Ford, 19 Pick. 217; Martin v. PuUer, 16 Vermont 
 108. ' 
 
 (2) Coursey v. Covington, 5 Har. & Johns. 45; Spratt v. M'Kinneys, 1 Bibb. 595- Brook, 
 ». Scott, 2 Mwf. 844; Cochran v, Totum, 3 Monroe, 405; ante. 346, 346. and ca^^ in no^ 
 
348 
 
 OP THE DECLARATION. 
 
 IV. ITS 
 PARTB, &0. 
 
 5tUy. The 
 cause of 
 action, 
 1. In as- 
 sumpsit. 
 Common 
 counts. 
 
 Work and 
 labor and 
 materials. 
 
 and the plaintiff should declare for work and materials. Where the de- 
 fendant refuses to receive goods which he has agreed to purchase, the spe- 
 cial counts are not only necessary, if the property in some identical goods 
 has not become vested in the defendant, but are at all events essential in 
 order to recover any expenses which may have been incurred (/) (1). The 
 counts for goods " bargained and sold " should also be added (m). In- 
 debitatus assumpsit lies to recover " goods and chattels," naming the value, 
 due " for tolls," &c. (w). 
 
 With respect to debts for work and labor or other personal services, 
 and for materials used in performing the work, it is a rule that if preceded 
 by the defendant's request (2) then however special the agreement was, yet 
 if it were not under seal (o), and the terms of it have been performed on 
 the plaintiff's part, and the remuneration was to be in money (p), it is 
 not necessary to declare specially, and the common indebitatus count is 
 sufiScient (9) (3). Where the demand is for wages, fees, or work and 
 labor in particular professions, &c. it is usual to insert a count stating con- 
 cisely the natufe of the service (r). But the common count for work and 
 labor is in general sufficient, without showing what sort or manner of work 
 was performed (.s). An attorney, under the count for work and materials, 
 may recover a bill for his fees, and for the price or value of parchment 
 vellum (i!). A farrier, &c. may recover for attendance and medicine, &c. 
 under the common counts for work and materials (u) (4). _ And these 
 counts are sufficient though the demand be for building a house(.'z;) under a 
 special written agreement and specifications ; although as formerly remark- 
 ed (^), it might in some cases, be advisable to insert a special count. The 
 common count will suffice to support a claim for the services of the plain- 
 tiff's apprentice or servant whilst improperly harbored by the defendant(2). 
 But under a common count for work and labor and materials done at de- 
 
 {l) 6 Taunt. 162; 1 Marsli. 162. 
 
 {?n) 1 East, 194. Distinction between tliis 
 count and the count for goods sold and deliv- 
 ered, 1 Vcs. juu. 609. No arrest for goods 
 "bargained and sold," 12 East, 399. 
 
 (n) 6 B. & C, 385; 9 D. & R. 452, S. C. 
 
 (o) Ante, 103. 
 
 (p) Ante, 346. 
 
 (S) Fitz. 302; 1 Wils. 117; Bui, N. P.139; 
 1 New. Rep. 331, 335; 6 East, 569; 2 Marsh. 
 273; Holt,N. P. Rep. 236; 4 Campb. 186. An 
 indebitatus count by a factor to recover a del 
 credere commission has been held good after 
 Terdiot, 2 Moore, 420; 8 Taunt. 371, S. C; 
 14 East, 578. Extra freight is recoverable un- 
 
 der this count, Holt, C. N. P. 392; and see 1 
 Sturls. 275; 3 Eing. 635. 
 
 (r) See the forms, post, vol. ii. As to con- 
 tracts for work or services in general, see id. 9 
 B. & C. 92. As to the recovery of wages pro 
 rata, see Turner v. Robinson, 5 B. & Adol. 789; 
 Pawcett V. Cash, id. 904. 
 
 (s) 2 Saund. 350, n. 2. 
 
 (0 Fisher v. Snow, 3 Dowl. 26. 
 
 (u) 3 Campb. 37; 1 New Rep. 289; 2 IVils. 
 20. 
 
 (x) 8 B. & C. 283; 2 M. & K. 390. 
 
 ly) Ante,ZZ%, 340. 
 
 (z) 8 M. & Sel. 191. 
 
 (1) Cutwater v. Dodge, 7 Cow. 85. 
 
 (2) An action of assumpsit for work and labor cannot be maintained without proof,, also that 
 it was done at the request of the defendant and for his benefit. Goldsby v. Robertson, 1 Blackf. 
 247. 
 
 (3) Aco. Felton v. Dickenson, 10 Mass. 287, 289; Feeter v. Heath, 11 Wendell, 477. 
 
 (4) To this case the reporter has added the following note: — " I have thought that this deci- 
 sion may be of some use to the profession, although the point was not before thought doubtful 
 among gentlemen at the bar. But in cases of this sort it is not unusual to find at least ten counts, 
 in the declaration — two for work and labor as a farrier, &c. — two for work and labor 
 generally — two for goods sold and delivered — and the four for money counts, not omit- 
 ting money lent, which can never be of any use except where there is a specific contract of the 
 lending and borrowing of money, — If a declaration contains general and special counts for work 
 and labor, the court on motion will order one set to be struck out as superfluous, Meeke o. Ox- 
 lade, 1 New. 289. A declaration combining all the money counts in one is good. Whitwell i>. 
 Brigham, 19 Pick. 117, 
 
BODY OR SUBSTANCE. — I. IN ASSUMPSIT. *849 
 
 fendant's request, an outgoing tenant cannot recover tlie usual remunera- iv. its 
 tion payable to him as *outgoing tenant for work and materials on the ' 
 
 farm, but must declare specially (a). cause'of * 
 
 A.S before observed, where there is an entire contract for work and labor action, 
 and materials, the value of the latter is not recoverable under a count for i. in as- 
 goods sold (6) ; nor can the count for work and labor and materials be aumpsit. 
 maintained, unless the article agreed for has been finished, and appropri- Common 
 ated to the defendant by his consent, and he has acquired a property in o^'^"''- 
 the specific chattel (c). 
 
 To support this count the plaintiff must in geueral have completely per- 
 formed the work contracted for {d) ; and if not, it is necessary to declare 
 specially if the defendant has wrongfully prevented the plaintiff from per- 
 forming the work ; as where a seaman, who was to have wages for his 
 service during an entire voyage, but pending it was left behind on shore, 
 and prevented from serving the whole voyage, a special count was held to 
 ■be necessary (e). But if a party be hired as a servant, or clerk, &c. for 
 a specific period, and in part perform the service, and be ready to com- 
 plete it, but be prevented from so doing by the employer, the wages or 
 salary for the whole term may be recovered upon the indebitatus count for 
 work done (/)(!)• ^"^^ i'l some cases, although the original agreenient 
 has not been strictly performed by the plaintiff, yet if the defendant avail 
 himself of, and' derive a benefit from the work done, he will be liable upon 
 a common count (g-) (2). But where A. undertook for a specific sum to 
 repair and make perfect a given article then in a damaged state, and did 
 repair it in part but did not make it perfect, it was held that he could not 
 recover for the work actually done and materials found, the contract being 
 entire, and the defendant having never been discharged from his obligation 
 to complete it (A)(3). And if a person hired for a period be guilty of mis- 
 conduct which justifies his employer in discharging him at once, it seems 
 that he cannot recover even for his antecedent services (i). 
 
 Money lent to the defendant himself on his own credit, may be recover- Monej 
 ed under the common count for money lent, though delivered to another '*"** 
 
 (a) Leeds v. Burrows, 12 East, 1. field, C. J., 1 New Rep. 355; 4 Taunt. 748. 
 
 (A) Ante, 347. As to extra work, where there Is a special oon- 
 
 (c) Ante, 148, 847. tract, Peake's Rep. 103; HoIt.N. P. Rep. 236; 
 
 (rf) 2 S.iun. 350, note 2. 1 Stark. R. 275; 3 Taunt. 52; 4 Id. 745, 748: 
 
 (e) 2 East, 145; 8 Id. 300; 6 T. R. 820; 8 Ring. 635. 
 
 see 5 Bing. 135; 2 Chit. R. 820. (h) 9 B. & C. 92; 3 Taunt. 52. 
 
 (/) 4 Campb. 375; 1 Stark. 198, S. C; 5 (i) 4 0. & P. 208; see 3 Esp. Rep. 285; 2 
 
 Bing. 132, 135; but see 3 Car. & P. 350. Stark. Rep. 256; 4 Campb. 875; 6 Car. & P. 
 
 (g) See Bui. N. P. 139. Per Sir J. Mans- 15; 1 Chitty's Gen. Prac. 75 to 84. 
 
 (1) Where one contracts to labor for another iat a stated time, upon a given Consideration, if 
 he is pre7ented from fulfilling his contract by sickness, he may recover pro rata, for the services 
 performed, upon a quantum, meruit. Fenton v. Clark, 11 Vermont, 557; Hunter ». Waldron, 7 
 Alabama, 758. See Nichols v. Coolahan, 10 Metoalf, 449. 
 
 (2) Merrill D. The Ithaca and Oswego Rail Road Co., 16 Wend. 586; Smith D.Lowell, 8Piok 
 178; Brewer v. Tyringham, 12 id. 547. Sefe Olmstead v. Beale, 19 Pick. 528, 529; Van Deusen 
 V. Blum, 18 Pick. 229, 231; Feeler «. Heath, 11 Wendell, 477 ; Norris v. Windsor, 3 Fairf. 293 • 
 Gazzam v Kirby, 8 Porter, 253; Gilman v. Hall, 11 Vermont, 510; Chitty Cont. (6th Am. ed.) 
 569, to 571 in notes; Newman v. M'Gregor, 5 Ham. 849; Hoagland v. Moore, 2 Blackf. 170- Al- 
 corn V. Harmanson, ib. 235; Cauly v. Ingersol, 4 Black. "498; Butts v. Huntley, 1 Scam 413- 
 Vanderbilt v. Eagle Works, 25 Wendell, 665; Butler v. Tucker, 24 Wendell, 447; Gilman ». Hall' 
 11 Vermont, 510; Blood v. Enos, 12 ib. 625. See, however. Stark v. Parker, Moses v. Stevens' 
 2 Pick. 267, 332. Chitty Cont. (6th Am. ed.) 579, 580, note, and cases cited. ' 
 
 (3) Hill V. School Dist. No. 2 in Milburn, 5 Shepley, 316; Leflore v. Justice, 1 Smedes & 
 Marsh. 381. 
 
 Vol. I. 48 
 
•350 
 
 OP THE DECLARATION. 
 
 IT. IT3 
 PABTS, &C. 
 
 action. 
 1. In as- 
 sumpsit. 
 Common 
 counts. 
 
 person at his request (7) ; and sometimes the plaintiff may 'recover on the 
 common count for money lent, though a special agreement has been en- 
 cause 0?^^ ^f^'^^ ^'^*° ^"*^ rescinded (A;) ; but the transaction must have been substan- 
 tially a loan by the plaintiff (i). And if money be lent to a third person 
 at the defendant's request, and both be liable to repay the money, the one 
 on a loan, and the other in respect of his collateral engagement, which 
 must be in writing, the count against the latter must be special (m) (1). 
 A declaration against a husband " for money lent to his wife at his re- 
 quest " is maintainable (w) ; aliter, if it be alleged that the money was 
 lent to her at her request, or was lent to both at their joint solicitation (0). 
 
 In general there must have been a loan of money to support this count ; 
 but an advance in foreign coin is sufiBcient (jp). The transfer of xtock into 
 the defendant's name could not, it seems, be regarded as a loan of money 
 to him (9) (2). 
 
 To sustain the common count for money paid by the plaintiff for the 
 defendant's use and at his request, it is essential, first, that the plaintiff 
 should have paid money for the defendant (r) (3), and secondly, \haX 
 such payment should have been made at the defendant's request express 
 or implied (s) (4). 
 
 Where the sum which the plaintiff has paid is in the nature of unliqui- 
 dated damages or costs, and cannot be considered as strictly paid in dis- 
 
 Money 
 paid. 
 
 U) 8 T. R. 828. As to evidence of loan, 
 see 2 Phil, on Evid. 5tli edit. 127; 7 B. & C. 
 416; 1 M. & E. 125, S. C. When this count 
 lies by the assignee of a bankrupt, ante, 25; or 
 an executor, ante, 19, 20. 
 
 (k) 7Bing. 266. 
 
 (l) 5 Bar. & Aid. 389. 
 
 {m) 1 Saund. 211 b; 1 Salk. 23; Id. 15; 
 Carth. 446; 2 Wils. 141; 8 Id. 388; 2 Bla.E. 
 872; 2T.fi. 81; 1 Moore, 126. 
 
 (n) 8 Wils. 888. 
 
 (o) 4 Price, 48. 
 
 Ip) 1 Marsh, 33; 5 Taunt. 228. 
 
 (g) 6 Burr. 2689; 1 East, 1; 2 B. & Aid. 
 51. The exchange of securities, notes, &o. 
 when it ia not a loan, 8 Taunt. 208. 
 
 (r) 10 Bar. & Cres. 346; 2 B. & Aid. 51; 
 3 East, 169; and 7 Bing. 246; 6 Bar'. & Crea. 
 489; 9 D. & E. 603, S. C. 
 
 (s) 1 Saund. 264, note 1. 
 
 (1) Marston v. Boynton, 6 Metoalf, 127. See the circumstances underwhich the plaintiff was 
 held to be entitled to recover as for money lent, under the common count. Perkins v. Dunlap, 
 5 Greenl. 268. 
 
 (2) A note payable in specific articles is admissible in evidence under the money counts, 
 Crandallw. Bradley, 7 Wend. 311; Smith v. Smith, 2 Johns. 285, and Pierce v. Crafts, 12 
 Johns. 90. 
 
 (3) Hatten v. Robinson, 4 Blaokf. 479; Haakins v. Dunham, Anthon, 81; Wilson d. George, 
 10 N. Hamp. 445; Murray v. Pate, 6 Dana, 336; Stone v. Porter, 4 Dana, 207. An accommo- 
 dation indorser, a surety, paid part of a judgment obtained against him and gave his note for 
 the balance which was accepted by the plaintifiP In satisfaction of the judgment ; held, that the 
 cause of action was perfect, and he might recover against his principal as for money paid, and 
 the statute of limitations begins to run. Rodman v. Hedden, 10 Wend. 498. But in Kennedy 
 V. Carpenter, 2 Whart. 844, it was held, that an accommodation indorser who had been com- 
 pelled to pay the note to the holder, could not recover from the maker on any of the money 
 counts, but must sue on the note. But as a general rule, a surety cannot recover until he has 
 actually paid the money ; and a judgment recovered against, or an imprisonment on the execu- 
 tion are not considered equivalent to payment so as to entitle the surety to call upon his princi- 
 pal for money paid to his use. But where there is an express promise to indemnify and sjive 
 harmless, and the surety is sued and charged in execution, the promise to indemnify is broken, 
 and the surety may maintain an action without the. debt having been paid ; but he can only re- 
 cover a compensation for the injury, ib. PoVell v. Smith, 8 Johns. 249. If the surety give 
 his negotiable note for the debt, which is received in satisfaction, it is equivalent to the pay- 
 ment of money, ii. Gumming u. Hackley, 8 Johns. 206; Wetherby v. Manna, 11 Johns. 518; 
 3 Mass. 403; Chandler v. Brainard, 14 Pick. 285; Cornwall v. Gould, 4 ib. 444; Doolittle v. 
 Dwight, 2 Metoalf, 661 ; Neale v. Newland, 4 Pike, 506. If a surety pays money for his prin- 
 cipal by virtue of a legal obligation, it gives the surety an immediate cause of action against his 
 principal. Butler v. Wright, 20 Johns. 367; 2 Wend. 409. 
 
 (4) Wharton u. Franks, 9 Porter, 282; Stephens v. Brodnax, 5 .Mab^ma, 258. An action 
 will not lie by a town, to recover back moneys expended for the support of a pauper, Charles- 
 town «, Hubbard, 9 N. Hamp. 195. 
 
BODY OE SUBSTANCE.— I. IN ASSUMPSIT. 350 O 
 
 charge oi a debt due from the defendant (0 ; or where the plaintiff has ^^;^™^_ 
 not actually made a payment in money, but has merely been obliged to 
 give security (1), or his goods have been sold under a distress tor the ^^^^-^^ 
 defendant's' debt, the declaration must be special for not imdemmty- action, 
 ing &c. (m) : and where an accommodation acceptor has been obliged to i. in as- 
 pay' cost as well as a principal sum, he must, to recover the *former, de- 8»n>psit 
 Clare specially (;;). Nor is there any ground for supporting the count ^^on 
 for money paid unless the payment were made at the express or impli- 
 ed (2) request of the defendant, and the request must be always aver- L J 
 
 red "(a;). It is clear, however, that if money be paid by a person in coi^ 
 sequence of a legal liability to which he is subject, but from which a third 
 person ought to have relieved him by himself paying the amount, a re- 
 quest will be implied. Thus an executor who has paid the legacy duty 
 may sue the legatee for the amount, as money paid for his use at his re- 
 quest (y). V „ 
 
 The form of this count is extremely simple, it is merely stating that the ^°°^»* 
 defendant is indebted to the plaintiff in a certain sum " for money had ^^J^_ '" 
 and received by the defendant to and for the use of the plaintiff" (3). 
 
 (0 5 Esp. Kep. 3; 4 W. 223; 8 T. Rep. request will be impiieii, 1 B. & B. 391; 6 B. 
 610; 1 T. R. 269; 7 Id. 204, 576; 1 Wils. & C. 439; 2 B. & B. 59. 
 188; 4 Campb. 81 ; Jones v. Farney, 1 M'Clel. (y) Foster v. Ley, 2 Bin?. N. C. 269. 
 25; but see 4 Taunt. 189. Where the plain- (z) See as to this action in general, and 
 tiff purchased stock, which the defendant the various instances in which it is maintaina- 
 agreed to transfer on a given day, and in con- ble, a leading case. Marsh i>. Keating, 1 Bing. 
 sequence of a rise the loss on the sale amounted N. C. 1 98. It is an action in which the plain- 
 to £15, which the defendant refused to pay; ti£f should show a just as well as legal right to 
 and the plaintiff afterwards paid that sum to the money. See 2 Burr. 1012; Dougl.. 138; 2 
 another broker, by whom the transfer was T. B. 370; 6 Id. 631; 3 B. & P. 16a. It lies 
 made; it was held, the plaintiff could not re- for the recovery of money paid under a mis- 
 cover in an action for money paid, bat that he take of facts; or obtained bj fraud or com- 
 should have declared specially on the contract pulsion; [Chitty Cont. (5th Am. ed.) 633. 
 with the defendant, as his claim was in the 634 notes;] or extorted by unjust and oppres- 
 nature of unliquidated damages, 2 Moore, 265. sive proceeds; or deposit^ upon an illegal wa- 
 A debt paid by a sheriff's officer on an attach- ger, or an illegal contract, not executed; or 
 ment against the sheriff, by the defendant's paid upon a consideration which has wholly 
 default, is recoverable by the former under failed, &c. See id. But it does not lie to re- 
 the common count, 1 M. & M. 347. cover back money recovered by a judgment, 7 
 
 («1 3 East, 169; 11 Id. 52; 2 B. & Aid. T. K. 269; 2 Campb. 63; 2 T. B. 645; 4 
 
 51; 3 Esp. 611; see 6 Bing. 229, 305. When Campb. 58. (6). [Chitty Cont. (5th Am. 
 
 parties who have paid money for another ed.) 638, 689 notes & cases cited; Maghee v. 
 
 should join or sever in suing the latter, ante, Kellogg, 24 Wend. 32. 
 8, 9; 7 B. & C. 217. But money paid on a judgment that is af- 
 
 (m) Seaver v. Seaver, 6 Car. & P. 673; see terwards reversed or vacated may be reoov- 
 
 form 2 Chitty on Pleading, 5th ed. 316, 6th ered back in this action. Homer v. Banet, 2 
 
 ed. 197. Boot, 156; Sturges t>. Allis, 10 Wend. 354; 
 
 (x) IT. R. 20; Exalli). Partridge, 8 T.R. Duncan v. Ware, 5 Stew. & Porter, 119; 
 
 310; 1 Saund. 264, note 1. The regaerf must Clark ». Penney, 6 Cowen, 297; Jamaica v. 
 
 be stated, even in an affidavit to hold to bail Guilford, 2 Chip. 103; )Iaghee v. Kellogg, 24 
 
 for money paid; 9 B. & C. 543. When the Wend. 32.] 
 
 (1) Ace. Camming v. Hackley, 8 Johns. 202. Unless that security be a negotiable instru- 
 ment. Id. 3 Johns. 206. Barclay d. Gooch, 2 Esp. 571; Morrison v. Berkey, 7 Serg. & Rawle 
 246 ; Kearney ». Tanner, 17 Serg. & Rawle, 94. 
 
 (2) See Hassinger w. Solms, 6 Serg. & Bawle, 4 ; Packard v. Lienow, 12 Mass. 11; Ott ». 
 Chapline, 3 Harr. & M'Hen. 323; Smith v. Sayward, 5 Greenl. 504. VideBiggs v. Lindsay, 7 
 Cranch,500. =s /, 
 
 (3) Generally speaking, whenever one person has in his hands money equitably belonging to 
 another, that other person may recover it by assumpsit for money had and received. Hall v. 
 Marston, 17 Mass. 575, 579; Claflin v. Godfrey, 21 Pick. 1, 6;Hawley v. Sage, IS Conn. 52. 
 
 Dividends on shares in a corporation may be recovered from the corporation, as money had 
 and received by the corporation to the use of the person entitled thereto, as owner of the shares, 
 even although he has not a certificate of stock. Neswith v. Washington Bank, 6 Pick. 324- 
 Ellis V. Essex Merrimack Bridge, 2 Pick. 243. But they cannot be received from the treasurer! 
 French ». Fuller, 23 Pick. 108; Weston v. Gibbs, 23 Pick. 205. 
 
351 OP THE DECLAKATION. 
 
 IV. ITS It must in general appear that the defendant has received money (1), 
 PABT8, &c. g^jj^ jjQ^ merely money's worth, as stock (a) (2), or goods {b) ; but if the de- 
 athly. The fendantreceived/orei^w money he would be chargeable upon this count (c). 
 aotbu"'^ The common count will also suf&ce against a party who received country 
 1. In as- bank notes expressly as money {d) (3). Where goods or other property 
 s'umpsit. improperly received by the defendant are saleable, it may, under circum- 
 Common stances, and after a lapse of time, be presumed against him that he has 
 counts. goi^ ^Ijg property and received money in return (e) (4), provided there 
 be reasonable evidence that the defendant converted the same into money 
 (e), but not otherwise (/). And the assignees of a bankrupt may main- 
 tain an action for money had and received against a party who took the 
 goods of the bankrupt in execution after an act of bankruptcy, and then 
 purchased the goods from the sheriff under a bill of sale, although no 
 money actually passed (§•) (5). So, where an insurance broker received 
 credit in account with an underwriter for a loss upon a policy, it was 
 [ *352 ] held that his principal might *maintain money had and received against 
 him, to recover the amount, although he had not actually received it (Ji). 
 This count is sustainable in some cases where money has been received 
 tortiously {&'),ov even by the intervention oi forgery {i^ , ■wiilioMi any 
 
 (0) 5 Burr. 2589; 1 East, 1. (g) 1 Stark. 134. 
 
 \b) 11 East, 52. (h) 6 Taunt. 110; 3 Campb. 199. 
 
 (c) 5 Taunt. 228; 1 Marsh. 33, S. C; but (i) Marsh v. Keating, 1 Bing. N. C. 198; 
 see M'Laohlan J). Evans, 1 Younge & Jerv. 380. held, that a stockholder, whose stock has been 
 
 (d) 13 East, 20; 4 Bing. 178. sold without his knowledge under a forged 
 (c) Dougl. 138; 4 T. R. 687;3 B. & P. 659; power of attorney, may sustain an action for 
 
 1 Hen. Bla. 239. money had and received against the innocent 
 
 (/) M'Laohlan v. Evans, 1 Younge & Jerv. partners of the forger, who received the pro- 
 880. ■ ceeds of the sale. 
 
 (1) Ralston v. Bell, 2 Ball. 242. Vide Beardsley v. Root, 11 Johns. 464; Hantz v. Sealy, 6 
 Biun. 409. When the defendant, though he does not receive money, receives that for which he 
 engages to pay money to a third person, such third ferson may sustain the action. Dearborn v. 
 Parks, 5 Greenl. 81; Willis v. Crocker, 1 Pick. 204; Lacket ». Bohannon, 3 Bibb. 378; Madi- 
 son V. Wallace, 7 J. J. Marsh, 100; Johnson v. Haggin, 6 J. J. Marsh, 581; Floyd v. Day, 8 
 Mass. 405; Willes v. Green, 2 N.Hamp. 833; Dean d. Mason, 4 Conn. 428; Mason v. Waite, 
 17 Mass. 560;Burnap v. Partridge, 3 Vermont, 144; Ainslee v. Wilson, 7 Cowen, 662; Arms 
 V. Ashley, 4 Pick. 74; Greathouse v. Throckmorton, 7 J. J. Marsh, 18; Turner v. Egerton, 1 
 Gill. & Johns. 433, 436; Chitty Cont. (5 Am. ed.) 602, notes. Hatteu v. Robinson, 4 Blackf. 
 480; Wilson v. George, 10 N. Hamp. 445; Murray v. Pate, 6 Dana, 335. 
 
 (2) Morrison v. Berkey, 7 Serg. & Rawle, 246. Nor for the value of foreign securities 
 unless it appear that the defendant had an opportunity of converting such securities into 
 money. M'Laohlan «. Evans, 1 Younge & Jervis, 380. Nor is evidence that a horse was 
 received by the defendant in exchange for a patent right, admissible either under a count for 
 money paid, laid outand expended, or for money had and received. Dobler v. Fisher, 14 Serg. 
 & Rawle, 179. If one dispose of a note belonging to another, he is liable to the owner for the 
 amount in an action for money had and received. Larabee v. Ovit, 4 Vermont, 47. If an 
 agent intrusted with property to sell for money, dispose of the property, he is liable in this form 
 of action, whether the sale be actually effected for money or not. Thompson v. Babcook, 
 Brayt. 24. 
 
 An agent to collect a debt credited it to his principal as paid , and charged it to the debtor 
 with his consent and it was held, that he could maintain an action for money had and received 
 against such debtor. Emer.son «. Baylies, 19 Pick. 55. 
 
 (3) Vide etiam Beardsley v. Root, 11 Johns. 464. 
 
 (4) Burnap v. Partridge, 3 Vermont, 144. See Witherup v. Hill, 9 Serg. & Rawle, 11 . See 
 also Chapman v. Shaw, 5 Greenl. 69; Hess v. Fox, 10 Wend. 436. 
 
 (5) But assumpsit for money had and received lies to recover back money paid on an execu- 
 tion, issued on asah'-i^ciijuiigmrai. Wisner t). Bulkley, 15 "Wend. 321. So where money has 
 been paid on a judgment subsequently reversed. Sturgess v. AUis, 10 Wendell, 354; Clark v. 
 Pinney, 6 Cowen, 287; Maghee v. Kellogg, 24 Wendell, 36; Stevens v. Fitch, 11 Metcalf, 248. 
 The real defendant in an action who pays a judgment recovered against the nominal defendant, 
 which is afterwards vacated, may maintain an action, in his own name, to recover back the 
 amount of such judgment. Stevens v. Fitch, 11 Metcalf, 248; Maghee v. Kellogg, 24 Wend- 
 ell, 82. 
 
 (6) See Chitty Cent. (6th Am. ed.) 683, 684, notes. 
 
BODY OR SUBSTANCE. — I. IN ASSUMPSIT. 352: 
 
 color of contract (1), or under pretence of a contract not performed by ^^^^^ ^_ 
 the defendant, although, in general, a party is not at liberty to declare m ' ^^^ 
 
 an action in form ex contractu, where there has been no contract express ^^J^ ^^ 
 or implied (A). Thus, assignees of a bankrupt may declare for money action, 
 had and received against a creditor who has levied his debt by /./a. after i. inas- 
 the act of bankruptcy (/) ; and they may declare in assumpsit for money re- sumpsit. 
 ceived from the bankrupt by way of fraudulent preference auterior to the act Common 
 of bankruptcy (m). And where the defendant having fraudulently induced *=°"" ^• 
 the plaintiff to sell goods to A., who could not pay for them, and on the nom- 
 inal resale of those goods by A., in which the defendant was really con- 
 cerned, having obtained himself the money paid on such resale, it was held 
 that the plaintiff might, in an action for money had and received, recover 
 of the defendant the value of the goods unpaid for by A. (w) (2). And 
 where a landlord refused to allow property-tax and distrained and sold 
 for the whole of the rent, and the tenant did not forego his right to deduct 
 the tax, the tenant recovered the amount of the tax in assumpsit for mo- 
 ney had and received (o). But this rule is so far qualified, that the Courts 
 will not allow a colorable title to the land, &c. to be tried under this form 
 of action, but the plaintiff must declare in tort (;?), even though the par- 
 ties agree to waive the objection to the form of action (5) (3) ; and 
 where there was no title, and a tenant having paid rent to A., was ejected 
 at the suit of a third person, who afterwards recovered from him mesne 
 profits for the period in respect of which he paid rent to A.; it was held, 
 in .an action for money had and received, that the tenant might recover 
 back that rent from A., he not having set up any title to the premises on 
 the trial (r). But assumpsit for money had and received does not lie 
 against a sheriff by a landlord, for neglecting to pay a year's rent before 
 the removal of goods *of the tenant taken in execution, according to the [ *353 ] 
 statute 8 Ann. c. 14, s. l.(<). 
 
 It seems that in general under this count the plaintiff must substantiate 
 a claim to some particular or specific sum (m) (4), but if he be legal- 
 ly and justly entitled to a certain sum received by the defendant, it is not 
 material that the latter received it in an indirect and circuitous manner ; 
 thus, where the holder of a bill of exchange, who held it in trust for the 
 plaintiff, sued the drawer, and pending that suit became bankrupt, and his 
 assignees afterwards brought an action against the drawer in the bankrupt's 
 name, in which action the sheriff having been guilty of an escape on mesne 
 
 (h) Ante, 107, 1 T. K. 36; 1 Taunt. 359. him, 7 B. & C. 128; 1 M. & R. 518, S. C. 
 
 (0 2 Bla. Rep. 827; 3 Wils 304; 2 T. R. (n) 2 B. & B. 369; 5 Bing. 87. 
 
 144; Bui. N. P. 181; 6 T. R. 695, 683; and (0) 1 M. & S. 609; see 2 B. & B. 59. 
 seel B. & C. 418. (p) Cowp. 419; 6 T. R. 298; Stra. 915; 2 
 
 (m) 10 East 378, 418, ante, 100, 101. Tro- Hen. Bla. 408. 
 ■ver has been thought to be the proper remedy, (g) 9 East, 378, 381. 
 
 4 T. R. 211; 1 Bla. Rep. 194. The defend- (,) 10 Bar. & Cres. 234. 
 ant's admission that he had received money (() 3 Campb. 260; 2 0. & P. 103, n. 
 from the banlsrupt, upon his examination be- (u) 3 B. & C. 626; 5D. & R. 500, S. C. 
 
 fore the commissioners, when insufficient to fix 
 
 ^^\Xi?' ^'P.'c^ "■ *^^''°°' ^ *'°''°' ^"1; ^"°*'"i "■ Strong, Id. 370; Beardslee v. Richard- 
 son, 11 Wend. 25. 
 
 (2) To warrant a recovery b,ick of money paid under a special contract, a strict performance 
 must be shown by the plaintiff, unless the contract has been expressly rescinded, or imoliedlv 
 90. Green v. Green, 9 Cowen, 46; Claris v. Smith, 14 Johns. 326. implieaiy 
 
 iq|?^^ n'T "«""■!:. ^/ff- * ?;?'",' ^^^5 ^^'"^'^ "• E™"^' Stapplefield v. Hugh, 4 Burr. 
 1985, b; Clark «. Smith, 14 Johns 326; Jennings v. Campb. 13 ib. 96; Haven „. Foster, 9 Pick 
 
 ul'^'^^i;^':tklfZ-V^t:.^:'''' "• ^^-- ^«"-^■ ^O^^ ^'"dman . Jenkins. 1i 
 (4) See Bates v. £artjs, 21 Pick. 247. 
 
353 
 
 OP THE DBCLAKATION. 
 
 lumpsit. 
 Common 
 counts. 
 
 IV. ITS process, the assignees recovered against the sheriff the amount of the-bill 
 pAETs, &o. j^g damages, it was held that such amount was recoverable by the plain- 
 5thiy. The tiff agaiust the assignees as money had and received for the plaintiff's 
 
 action. use (H). 
 
 s . In as- 
 
 In order to maintain money had and received, either the money or the 
 goods for which the plaintiff claims the proceeds must originally, or at the 
 time of the action brought, liave belonged /o the plaintiff (x). Therefore, 
 if the sheriff, after having seized goods under difitri facias at the suit of 
 A., sell them, though irregularly, under another process at the suit and for 
 the benefit of B., and action for money had and received cannot be sup- 
 ported by A. against the sheriff (y). Mere possession of the property, for 
 the proceeds of which wrongfully taken by the defendant plaintiff proceeds 
 is sufficient against a wrongdoer (3) ; though a mere seizure is not sufficient 
 to render the sheriff liable for money had and received (a). But if the 
 sale be under the plaintiff's process he may maintain the common count 
 against the sheriff (6), even it seems before the return of the process (c) ; 
 but the action should not be brought until after a demand of the money 
 has been made (0!). In the case of bankruptcy, money had and received 
 lies against the sheriff without actual notice (e). 
 
 In general, if money be delivered to a servant or a clerk, or agent, to 
 be paid over to a third person, being his principal, no action for money 
 had and received, to recover it back, can be sustained against the former 
 (1) although he still have the money in his hands, but the principal only, 
 though insolvent, can be sued, (unless indeed the principal were a lunatic) 
 (/), and there should be a privity of at least implied contract between 
 [ *354 J the plaintiff and the defendant (/). But it lies against *an agent of the 
 plaintiff who has received money for a particular purpose, and who by 
 want of due care lost it ; and a special count for the negligence is not 
 necessary (g-). 
 
 In general, the defendant or his agent or partner (K), must have re- 
 ceived the money for the plaintiff's use (2), and if by mutual consent the 
 money has been paid to a stakeholder in trust for the party entitled, the 
 stakeholder, if liable at all, should be made the defendant (i). And if a 
 party receive money for a principal, and be merely the collector or bearer 
 of the money and bona fide pay it over before notice of the claim of the 
 true owner, the action should bo brought against the principal, not the 
 servant (Je) (3). As a chose in action is not at law assignable (I), if A. 
 
 (d) 1 m. & Sel. 714. 
 
 (z) Per Lord EUenborough, C. J., 16 East, 
 274; 3 Bos. & Pul. 465; post, 390, n. 
 
 (y) 16 East, 264. 
 
 (2) 1 B. & Adol. 241. 
 
 (u) 16 East, 274. 
 
 (6) 3 Campb. 347; 1 B. & B. 870. See 
 further as to this action against the sheriff, 
 6 B. & C. 739; 9 D. & R. 623, S. C; 8 B. & 
 C. 160, 722; 2 M. & B,. 68, S. C; 3 M. & R. 
 411, S.C. 
 
 (c) 8 B. & C. 727; 3 M. & B. 418, S. C. 
 
 (d) 3 B. & Aid. 606; 1 B. & B. 389. 
 
 (c) 8 Bing. 43. 
 
 (/) Stephens v. Badcock, 3, B. & Adol. 
 354; and Stead v. Thornton, there cited; in- 
 fra, note (fc), sed quare. 
 
 (g) Barry v. Roberts, 1 Harr. & WoU. 242 . 
 
 (A) 4 M. & Sel. 476; 1 Bing. N. C. 198. 
 
 (i) 9 East, 878. 
 
 (k) See the coses, Chitty, jun. Contr. 186; 
 7 B & C. 101; 9 D. & R. 881, S. C; 4 Taunt. 
 198. 
 
 (/) See ante, 15. 
 
 (1) Tyrei). Lockwood, 4Cowcn, 454. 
 
 (2) See Judson v. Eslava, Minor, 2; Supervisors of Duchess v. Sisson, 24 Wendell, 387. 
 
 (3) Chitty Cont. (6th Am. ed.) 611, note and cases cited; Garland v. Salem Bank, 9 Mass. 
 408; Frye v. |Lookwood, 4 Cowens, 454; Fowler v. Shearer, 7 Mass. 14; Dickens v. Jonea, 6 
 Yerger, 483; Elliott «. Swartwout, 10 Peters, 187; Pool v. Adkisson, 1 Dana, 117. 
 
BODY OB SUBSTANCE.— I. IN ASSUMPSIT. 854 
 
 recfeive money for B.'s use, the latter cannot assign the demand to C. so as ^^^^™^_ 
 to enable him in his own name to sue. A. ; but if in such a case A. assent ^^^ 
 
 to the transfer, and promise C. to pay him the money, the action may be ^^J^^^ 
 brought in the name of the latter against A. (?n) (1). Where A. remitted action, 
 to B. a bank bill, indorsed " pay to the order of B., under provision for i. in as- 
 my note in favor of C, payable at B.'s house, on, &c." and A. received sumpsit. 
 the proceeds of the bill, and refused to pay them over to C, it was de- Common 
 cided that B. was not liable to C. as for money had and received, as B. 
 had never assented to hold the bill or money to C.'s use (w). 
 
 This action is frequently brought to recover back a deposit, or money 
 paid upon an agreement, which the defendant omits or refuses to perform 
 (2). As a general rule, it lies to recover a deposit paid on the purchase 
 of an estate, if the title be defective (o) ; or the vendor be not prepared 
 to show his title on the day fixed for that purpose between the parties by 
 their agreement (p) ; or if either party be ready, and each make default 
 in performing his part of the agreement (q') (3). So money paid on ac- 
 count of the purchase of shares in an undertaking which has been aban- 
 doned, may be recovered back in this form of action (r). In these cases 
 there is an entire failure of consideration. So where some act is to be 
 done by each party under a special agreement, and the defendant by his 
 neglect prevents the plaintiff from carrying the contract into execution, 
 the latter may recover back *money he has paid upon it, as money had [ *355 ] 
 and received to his use (s) (4). As where the plaintiff bought cord wood 
 of the defendant, to be paid for on a certain day, and it was incumbent on 
 the defendant to cut off the boughs and trunks, and then cord it, and for 
 the plaintiff tore-cord it, but the defendant neglected to cut and' cord the 
 whole of it in time, it was held that the plaintiff not having received any 
 part of the wood might recover back the money be had paid (<). 
 
 Assumpsit for money had and received lies for money paid under an 
 original igTiorance or a subsequent forgetfulness of facts (m) (5) but not 
 
 (m) See ante, 47; 3 T. R. 180; 8 B. & C. (o) Bla. Kep. 1078; 1 Esp. 268; 2 Id. 639; 
 
 395, 855; 14 East, 587 n. a. Effect, of order 4 Id. 221 ; 1 Stark. K. 65; 2 B. & Aid. 171. 
 on an agent holding money to pay the plaintiff (p) 4 Taunt. 334. 
 a debt due to him from the principal, 14 East, (q) 1 R. & M. 394., 
 
 582; 7 Taunt. 339; 1 K. & M. 68; 1 Bing. (r) 3 Bar. & Ores. 814; 5 Dowl. & Ryl. 
 
 150; 7 Moore, 527 ; 8 Id. 10; Chit. jun. Contr. 761 ; 4 Bing. 5. 
 
 184; 3 Price, 58; 3 B. & C. 842; 6 D. & R. (s) 7 T. R. 181; 2 You. & Jerv. 284. 
 735, S. C. ; 16 Ves. 443. (i) 6 T. R. 181 . 
 
 (») Crompt. & Jerv. 83; supra, note (m). (u) Lucus v. Woswiok, 1 Mod. & Rob. 293. 
 
 (1) Chitty Cont. (6th Am. ed.) 618, 614 notes, and coses cited. 
 
 (2) Where a contract is rescinded, assumpsit for money had and received will lie to recover 
 back the price. Martin v. Howil, 3 Brevard, 547; Huckson v- Arant, 2 Brevard, 264; Stevens 
 V. Lyford, 7 N. Hamp. 360; Richards v. Allen, 6 Shepley, 296; Luey v. Bundy, 9 N. Hamp. 298. 
 Where more money is realized from collateral security than the amount of the debt, the balance 
 may be recovered as money had and received. Randall v. Rich, 11 Mass. 494 ; Hunt v. Nevers. 
 15 Pick. 500. 
 
 (3) Chitty Cont. (5th Am. ed.) 632, 633, and notes. 
 
 (4) Chitty Cont. (6th Am. ed.,) 622, u. 3. Frost v. Clarkson, 7 Covf. 24. So where tne»- 
 itable accident has prevented a party from fulfiling a contract, he may recover for the part per- 
 formed, on an implied promise, upon a quantum meruit count, Willington v. West Bovlaton 
 4 Pick. 101. ' ' 
 
 (5) Keller v. Solan, 9 M. & W. 54; Bank of Louis, v. Ballard, 7 Howard, (Miss.) 371 ; Nor- 
 ton V. Marden, 3 Shepley, 45. Money paid by one party to another through a mutual mistake 
 of facts, in respect to which both were equally bound to inquire, may be recovered in this action. 
 Canal Bank v. Bank of Albany, 1 Hill, 287; Wheaden o. Olds, 10 Wendell, 174; Burr v Vedl 
 der, 3 Wendell, 412; Franklin Bank v. Raymond, 8 WendeU, 69 ; Potter v. Everett, 2 HiU, 262 
 
355 
 
 OP THE DECLARATION. 
 
 IV. IT3 
 PARTS, &0. 
 
 5thly. The 
 cause of 
 actiou. 
 1. In as- 
 sumpsit. 
 Common 
 counts. 
 
 if paid with knowledge oi fact or means of knowledge readily aeces^ble, 
 though under an ignorance of lavj (x) (1). 
 
 But the count for money had and received is not maintainable if a con- 
 tract has been inpart performed, and the plaintiff has derived some benefit, 
 and by recovering a verdict the parties cannot be placed in the exact situa- 
 tion in which they originally were when the contract was entered into («/). 
 (2). Thus, where A. agreed in consideration of a premium to let a house 
 to B., which A. was to repair and grant a lease of within ten days, butB. 
 was to have immediate possession ; and B. paid tiie premium and took pos- 
 session and retained it after ten days although A. omitted to repair and 
 grant the lease ; it was held that B. could not by quitting on account of 
 A.'s default, recover back the premium in a count lor money had and re- 
 ceived, but was bound to declare specially for the breach of the agree- 
 ment («). So where a party sold a patent right, and the vendee paid the 
 money and used the patent riff/it and enjoyed some benefit therefrom, but 
 it afterwards appeared that the patent was invalid, it was held that money 
 had and received could not be sustained, a partial benefit having been re- 
 ceived by the plaintiff (a) (3). And upon the same principle, where the 
 master and part-owner of a vessel agreed to purchase the moiety of his part- 
 ner, and having paid the purchase-money and received the title-deeds which 
 he deposited as a security with a third person, and had the entire possession 
 of the vessel given'up to him, but his partner afterwards refused to exe- 
 cute a bill of sale or refund the money, it was decided that an action for 
 money had and received was not sustainable (6). Where a special con- 
 tract is still open, and has not been rescinded by mutual consent, it is nec- 
 essary t» declare specially : as if a horse, &c. be sold with a warranty. of 
 soundness, although it be unsound, and the purchaser immediately offer to 
 return it, he cannot recover back the price on the count for money had 
 and received(4), if the vendor refuse to receive back the horse ; for the 
 [ *356 ] warranty can *only be tried on a special count (c) (5), unless there was 
 an express stipulation to take back, or unless there was actual fraud {d); 
 and in such case the count for money had and received is not maintainable, 
 although upon the horse being tendered to the seller he stated that if the 
 
 (x) Id. ibid. ; Bilbie v. Lumley, 2 East, 
 469; Milnes v. Duncan, 6 Bar. & Cres, 677; 
 9 D. & R. 735, S. C. per Bayley, J. 
 
 (y) 5 East. 449; 2 You. & Jerv. 278. 
 
 (z) 5 East, 449. 
 
 (a) 1 New Rep. 260. 
 
 (b) 2 You. & Jerv. 278. 
 
 (c) Doug. 23; 7 East. 274; 2 Campb. 146; 
 8 M. & Sel. 349, per he Blanc, J. As to an 
 action on a bail given for a horse warranted 
 sound, 2 Taunt. 2; 14 East, 486; 1 Stark. R. 
 51; 3 Id. 175. 
 
 (rf) 1 Crom. & M. 207. 
 
 (1) Elliott'!). Swartwout, 10 Peters, 137; Clarke v. Dutoher, 9 Cowen, 674; Hubbard v. 
 Martin, 8 Yerger, 498; Jones v. Watkins, 1 Stewart, 81; Dickens v. Jones, 6 Yerger, 683; 
 Ladd V. Kenney, 2 N. Hamp. 341; Lee t; Stuart, 2 Leigh, 76; Haven v. Foster, 9 Pick. 112; 
 Chitty Cont. (6th Am. ed.) 627, 628, notes and cases cited, 683, notes. Mowatt v. Dwight, 1 
 Wendell, 355; Mayor v. Judah, 5 Leigh, 305; Bean v. Jones, 8 N. Hamp. 149; Norton v. 
 Marden, 3 Shepley, 45. Money even improperly recovered by action cannot be recovered back. 
 Walker v. Ames, 2 Cowen, 428; Cobb v. Curtisa, 8 Johns. 470. 
 
 Where one voluntarily pays toll, which the law would not compel him to pay, he cannot re- 
 cover it back. Sprague v. Birdsall, 2 Cowen, 419. 
 
 (2) Chitty Cont. (6th Am. ed.) 741, 743, notes, and oases cited. 
 
 (3) Chitty Cont. (6th Am. ed.) 623, notes, and cases cited. 
 
 (4) Londregon v. Crowley, 12 Conn. 663. Assumpsit lies on a promise to refund the consid- 
 eration money paid for land sold, although there be a covenant of warranty, where the grantor 
 expressly engaged to refund, upon being notified of the pendency of ejectment against his grantee; 
 but in such case, the action must be on the special contract. Miller v. Watson, 4 Wend. 267. 
 
 (5) Thornton v. Wynn, 12 Wheat. 183. Sea Ashley «. Beeves, 2 M'Coiid, 482. 
 
BODY OR SUBSTANCE. — IN ASSUMPSIT. 356 
 
 horse be unsound ho will take it back and return the money ; provided he ^^^^^^^ 
 denies the unsoundness, and does not take back the horse (e). If, how- ' * 
 
 ever, either by virtue of an express stipulation in the original contract the ^^^^'^f 
 plaintiff was in a certain event entitled to rescind it, or it has been put an action, 
 end to by the agreement of both parties, the common count may be sup- 1. in as- 
 ported to recover money paid on the contract (/)(1). sumpsit. 
 
 On a single count for money had and received in the common form, va- £°^™™°° 
 rious sums received at different times may be recovered (g). r'™'?'^? 1 
 
 The count must describe the money to have been received to the use L ^'^^ J 
 of the person or persons who at the time of receipt of the money by the 
 defendant was legally entitled to it. And in an action by a solvent part- 
 ner and the assignees of another, if the money was received after the 
 bankruptcy, the count must be for money received for the use of the sol- 
 vent partner and the assignees as such(A) ; and in an action by an execu- 
 tor, if the money were not received until after the death of the testator, 
 the plaintiff could not recover without a count for money received to his 
 use as executor {i) {2). Under the count for money had and received, only 
 the sum received for the plaintiff's use is recoverable (3), and if the plain- 
 tiff seek to recover interest or expenses incurred (as in investigating a ti- 
 tle to an estate in cases where the claim is for the deposit, &c.), other 
 counts must be inserted accordingly(J) ; unless indeed as to interest since 
 the 3 & 4 W. 4 c. 42, sect. 28 (A). 
 
 The indebitatus count " for interest due upon the forbearance of monies Interest, 
 due from the defendant to the plaintiff, and by the latter forborne to the 
 former at his request, &c." is very frequently inserted in a declaration in 
 assumpsit, especially in actions on bills of exchange and promissory notes 
 (4). The rule was, that interest was not recoverable except on those in- 
 struments, and a very few other instances(Z), unless there had been an ex- 
 press agreement to that effect ; or unless such agreement could be coUec- 
 
 (e) 7 East, 274. O') 1 B. & P. 306; Bla. Rep. 1078; 4 Esp. 
 
 (/) IT. R. 138; 7 East. 275, 276; 1 C. & 223; 2 Campb. 426; see 3 Taunt. 157. 
 
 P. 18. (fr) Post. 
 
 (g) 2Sauncl. 118, n. 2. (0 As bonds, 7 T. R. 124; 15 East, 225; 
 
 (A) 3 Bos. & Pul. 465; post, toI. ii. or money awarded to be paid on a named day, 
 
 (i) M'Laohlan v. Evans, 1 You. & Jerv. if demanded, &c., 3 Campb. 468. See in gea- 
 
 880; and see form in 2 Saund. 207, 208. eral Cliit. jun. Coctr. 195; post, vol. ii. 
 
 (1) Vide Gillett v. Maycard, 5 Johns. 85; Eames v. Savage, 14 Mass. 425; Lyon v. Aunoble, 
 4 Conn. 340; Hudson ». Swift, 20 Johns. 21; Dickson v. Cunningham, Martin & Yerger, 203; 
 Bradford v. Manley, 13 Mass. 139; Conner v. Henderson. 15 Mass. 819. 
 
 _ (2) An administrator, supposing an estate insolvent, to be solvent, paid a creditor more than 
 his share; after final settlement, he was held entitled to recover back the difference in an action 
 for money had and received. And such action was properly brought in his individual character 
 and not as administrator. Rogers v. Weaver, 5 Ham. 536; Walker v. Hill, 17 Muss. 380- Walk- 
 er V. Bradley, 3 Pick. 261; Bliss v. Lee. 17 Pick. 83; Austin ■«. Henshaw, 7 Pick. 46. 
 
 (3) Contra Pease v. Barber, 3 Caines, 2fi6. In that case, Kent, C. J., delivering the oninion 
 of the court, says:—" The action for money had and received, is an equitable action, and the 
 party must show that he has equity and conscience on his side. The rule in equity is to allow 
 interest in many cases for money had and received. There may be cases in which the defendant 
 ought to refund the prmciple merely, and there may be other cases in which he ought, ex anue 
 et bono, to refund the principal with interest. Each case will depend upon the justice and eoui- 
 ty arising out of its peculiar circumstances, to be disclosed at the trial." See ante, 351 and 
 note. Under the counts for money had and received, and money paid, no special damage can be 
 recovered, but resort must be had to a special count for that purpose. Hanna v. Pegg, 1 Blaokf. 
 
 _ (4) A declaration on a note given out of the country, demanding interest, should aver what 
 IS the rate of interest where the note is given. Surlott ». Pratt, 3 Marsh. 175. 
 
*357 
 
 OP THE DECLARATION. 
 
 cause of 
 action. 
 1. In as- 
 sumpsit. 
 
 Common 
 counts. 
 
 IT. ITS ted from the usual course of dealing ^between the parties in former and 
 pAKTs, &o. gjjjjiiar occasions (m) : even though the debt w'as due on a written agree- 
 5thly. The ^ent providing an express or contingent period for payment (w), Thus, 
 in the absence of an agreement to pay interest, it was not recoverble for 
 goods sold (o) (1) work and labor (p), money lent (9), paid (r)(2), had 
 and received(s)(3), or upon an account stated(<). And it seems to have 
 been that where the demand was of such a nature that the law did not im- 
 ply a contract for interest, and none was agreed for, it should not be al- 
 lowed merely because the debt had been wrongfully withheld after the 
 creditor had repeatedly applied for payment (m) (4). This defect in the 
 law encouraged the disposition to .delay the payment of just debts and 
 was therefore rectified by 3 & 4 W. 4, c. 42, sect. 28; which enacts, 
 " That upon all debts or sums certain, payable at a certaintime or otherwise, 
 the jury on the trial of any issue, or on any inquisition of damages, may, 
 if they shall think fit, allow interest to the creditor at a rate not exceed- 
 ing the current rate of interest from the time when such debts or sums 
 certain were payable, if such debts or sums be payable by virtue of some 
 written instrument at a certain time, or if payable otherwise, then from 
 the time when demand of payment shall have been made in writing, so as 
 such demand shall give notice to the debtor that interest will be claimed 
 from the date of such demand until the term of payment (r) ; provided 
 that interest shall be payable in all cases in which it is now payable by 
 law." 
 
 Sect. 29 enacts, " That the jury, on the trial of any issue, or on any 
 inquisition of damages, may, if they shall think fit, give damages in the 
 nature of interest, over and above the value of the goods at the time of 
 the conversion or seizure, in all actions of trover or trespass de bonis 
 asportatis, and over and above the money recoverable in all actions on 
 policies of assurance made after the passing of this act." 
 
 Sect. 30 enacts, " that if any person shall sue out any v)rit of error 
 upon any judgment whatsoever given in any Court in any action personal, 
 and the Court of error shall give judgment for the defendant thereon, 
 then interest shall be allowed by the Court of error for such tiipe as exe- 
 cution has been delayed by such writ of error, for the delaying thereof. 
 
 In general it was considered that the declaration should be special 
 where damages for the loss of the use of money are sought to be recov- 
 ered, and the claim is not eo nomine for interest as a debt (5). Upon a 
 [ *358 ] contract *for the sale of goods to be paid for by a bill of a certain date, 
 it was holden the price might bear interest from the day when the bill, if 
 
 (m) 1 Camp. 50; 2 Id. 426; 1 B.' & P. 307; 
 2 Id. 472; 9 B. & C. 381; 4 M. & R. 808; 1 
 East, 228; 4 C. & P. 124. 
 
 (n) 9 B. & C. 878; 4M. & K. 305, S. C. 
 
 (0) 6 Esp. 45. Except where a bill was to 
 have been given, 13 East, 98. 
 
 (?) 1 Hen. Bla. 305; 2 Wils. 205. Chitty 
 Cent. {5thAm. ed.) 145, n. 2. 
 
 (9) 9 B. & C. 378; 4 M. & R. 365, S. C. 
 
 (r) 8 Stark. R. 132. 
 
 (s) 2 Campb. 420; 1 B. & P. 307. Not even 
 in action against an auctioneer to recover de- 
 posit, see 8 Taunt. 45; 6 Bing. 184. 
 
 (/) 6 Esp. 45. 
 
 (u) 9 B. & C. 880; 4 M. & R. 808, S. C. 
 sedvideS Bing; 353; 9 Price, 134. 
 
 (ii) And yet in Pierce v. Fothergill, 1 Hod- 
 ges R. 251, it was held that the issuing a writ 
 of summons is a sufficient demand to entitle 
 the plaintiff to interest from that day. 
 
 (1) Chitty Cont. (6th Am. ed.) 644, 645, notes, and 
 
 (2) Chitty Cont. (6th Am. ed.) 645, n. 3. 
 
 (3) Chitty Cont. (6th Am. ed.) 645, n. 4. 
 
 (4) Riley v. Seymour, 1 Wend. 148. 
 
 (5) Ashby v. Ashby, 3 M. & P. 186. 
 
 cited. 
 
BODY OB SUBSTANCE. — I. IN ASSUMPSIT. 358 
 
 it had been given, would have been due, and that the interest might be ^^^- ^*> 
 recovered as damages on a special count for the non-delivery or non-pay- ^**^^' '• 
 ment of the bill ; and that if in such case upon a general count for goods ^^J^'J^^ 
 sold and delivered, the jury should give the 'price and interest as dama- action, 
 ges, the Court would not on. that account set aside the verdict (a;). So i. inas- 
 where the defendant, who had contracted for goods, was to return them sumpsit. 
 in a year, or otherwise to pay for them wil/i interest, and the declaration Common 
 was only for goods sold, and interest on money forborne, the Court would ''°"°*^- 
 not set aside the verdict, or reduce the damages, although the jury gave 
 interest, which, in strictness, should have been claimed upon a special 
 count (jf). In each of these cases there was a just claim to interest in 
 the shape of damages (sr). The form of the count for interest will be 
 found in the second volume (a). It may be advisable to insert it where 
 interest may be recoverable ; but since the statute 3 & 4 W. 4, c. 42, sect. 
 28, it may be recoverable in many cases without expressly declaring for 
 interest, provided the damages at the conclusion be sufficient to cover it. 
 
 It is advisable in all declarations in assumpsit for the recovery of a Acootfnt 
 money demand (excepting against an infant, who cannot in law state * " 
 an account), to insert a count on an account stated {b}. The acknowl- 
 edgment by the defendant that a certain sum is due, creates an implied 
 promise to pay the amount, and it is not necessary to set forth the sub- 
 ject-matter of the original debt (c) (1) ; nor is the amount of the sUm 
 alleged in the count to be due material ((i) (2) ; nor is it necessary, in 
 order to support this count, that the defendant's admission should 
 relate to more than one item or transaction, or that there should have 
 been cross dealings or accounts between the parties (e). The present 
 rule is, that if a fixed and certain sum is admitted to be due to a plaintiff, 
 for which an action would lie, that will be evidence to support a count 
 upon an account stated (/). But an account stated is not proper to re- 
 cover a sing-le sum under an express contract, but lies only where 
 an account has been stated with reference to /o'jwer transactions (§■) (3). 
 
 (x) Taunt. 157. 281 , 715 ; 1 Esp. 159 ; 6 Id. 24. As to stamp, 
 
 ,(y)2Bmg. 4. iBing. 134. 
 
 (a) See Id. 6; and 12 East, 418. (c) 2 Mod. 44; 2 T. R. 480. 
 
 (ffl) Post, vol. ii. , {d) 2 Saund. 122 n. 3; 1 Bla. Bep. 65; 1 
 
 (A) 2 Mod. 44; 1 T. B. 42. What is evi- Burr. 9. 
 
 denoe of an account stated, see 10 East, 104; (c) 13 East, 249; 5 M. &Sel. 65; 2 Saund. 
 
 11 Id. 118, 124; 13 Id. 249; 2 B. & P. 363; 122, n. 6. 5th ed.; 3 C. & P. 236. 
 
 2 M. & Sel 265} 26 East, 420; 3 Stark. B. (/) Per Parke, B. and Alderson, B. Por- 
 
 10; 1 R. & M. 239; 7 Bing. 104; Breckon v. ter v. Cooper, 4 Tyr. 264, 265; 1 Cr. M. &B. 
 
 Smith, 1 Adol. & En. 488. Admission of the 387. 
 
 receipt of money before commissioners of (g) Clarke v. Webb. 2 Dowl. 671 ; 1 Cr. M. & 
 
 bankrupt on a compulsory examination, 7 B. B. 29; and see Allen v. Crop, 2 Dowl. 546; or 
 
 & C. 6ii3. 1 M. & R. 518, S. C. NoteoncZu- when It lies, Ercke v. Nokes, 3 Car. &P. 170; 
 
 tive evidence, when, 1 T. R. 42; 4 B. & C. 1 Mood, & R. 359. 
 
 _ (1) Tassey D. Church, 4 Watts & Serg. 141; Fitch v. Leitch, 11 Leigh, 471. Assumpsit 
 lies to reooTer a balance struck and pronused to be paid though the aedount embrace specialties, 
 wiUi other securities. Gilson v. Stewart, 7 Watts, 100. It was held in Cathell v. Goodwin^ 1 
 1 Har. & Gill 463, that under the counts for money lent, paid, laid out and expended, and an 
 insimul compuiassent, the plaintiff was entitled to recover by eyidenoe of the defendant's dis- 
 honored bill, drawn payable to the order of the plaintiff's wife. 
 
 (2) But where the count was on an account stated between the parties, wherein the defend- 
 ant was found in arrear, &c. to, the plaintiff, in the sum of £21 6s. and that the defendant pro- 
 mised to pay it in consideration of forbearance, it was held, that the exact sum must be proved, 
 and the plaintiff having a debt due of £20 18s. was nonsuited, though it would have been suffi- 
 cient if the sum were laid under a videlicet. Arnfleld v. Bate, 3 Mau. & Selw. 178.- 
 
 (3) CIute». Bailey, 239. 
 
*359 
 
 OP THE DECLARATION. 
 
 action. 
 1. In as- 
 sumpsit. 
 Common 
 counts. 
 
 IV. ITS An attorney's bill cannot be recovered under this *count, without due 
 pAKTs, &c. pj-oQf of delivery of a signed bill (A); Where arbitrators award a sum 
 Bthly. The Qf money to be due, it may be recovered under this count, unless the sub- 
 cause of miggjon was by bond (t) (1). But a party can only recover under this 
 count when a certain and precise sum is admitted to be due (A;); and an 
 acknowledgment of a debt, but without naming or referring to a 
 sum certain, does not enable a plaintiff to recover on this count even no- 
 minal damages (/) ; and where a debt is actually in existence (m), and 
 a prior transaction (w). But it may be shown by other evidence 
 than the defendant's admission, that the sum to which he referred was 
 of a precise and stipulated amount (o). An admission by the de- 
 fendant in a conversation with a third person that he was indebted to 
 the plaintiff in a named sum is not evidence of an account stated, unless 
 the third person was the plaintiff's agent (jo). In an action by an execu- 
 tor, evidence that the defendant, on being applied to for payment of in- 
 terest, stated he would bring him some on a certain day, is insufficient to 
 support an account stated ; there being no acknowledgment of any pre- 
 cise debt of a given character, or any thing to show in what capacity the 
 plaintiff was entitled (g). And it seems that the admission should be 
 clear and unqualified (r). 
 
 If an account be stated and agreed of what is due for growing crops 
 not previously served, it is a valid plea that there was no contract in 
 writing signed, so as to take the case out of the statute against frauds, 
 29 Car. 2, c. 3, s. 4, but if the account were stated after the severance, 
 that fact might be replied (s). 
 
 In framing the pleading rules of Hil. Term, 4 W. 4, it was considered 
 that in assumpsit and debt on simple contract it is just that the pjaintiff 
 should be at liberty to proceed as well for the original debt as also upon , 
 an admission that it is due, and therefore the rule expressly provides 
 " that a count/or money due on an account stated may be joinedwith any 
 other count for a money demand, though it may not be intended to estab- 
 lish a distinct subject-matter of complaint in respect of each of such 
 counts." But as Reg. Gen. Hil. T. 2 W. 4, subjects a plaintjff to the 
 payment of costs upon every issue which he does not establish in evidence, 
 this count should not be added unless there be strong ground for expect- 
 ing that it be proved by evidence. 
 
 When a 
 count 
 upon an 
 account 
 stated 
 should or 
 not be 
 added. 
 
 Common 
 counts in 
 actions hy 
 and 
 
 againit 
 persons 
 suing or 
 being tued 
 in particu- 
 lar rights 
 or churac- 
 tert. 
 
 [ •360 ] 
 
 We have seen that in actions by or against executors, where six years 
 have elapsed since the death of the testator, or if it be on any *other ac- 
 count material for the plaintiff to avail himself of a promise or acknowl- 
 edgment by the defendant since the death, it may be necessary to add all 
 or one of the common counts on promises to or by the executor in that 
 character, for otherwise such promise or acknowledgment cannot be 
 
 (ft) See preceding note. 
 
 (i) 1 Esp. 194; Tidd, 9th ed. 834; Peake's 
 C. N. P. 227; 5 T. R. 6; but see 1 Esp. 877. 
 
 (fr) i Moore, 542; 18 East, 249. 
 
 (I) Bernasooni v. Anderson, Mood. & Malk. 
 188. 
 
 (m) 5 Moore, 114 to 116; or a moral obliga^ 
 
 tion, 8 Car. & P. 170. 
 
 («) 1 Crom. M. & Ros. 29. 
 
 (o) 5 Moore, 114; 2 0. & P. 109. 
 
 Ip) Breckon v. Smith, 1 Adol. & Ell. 448. 
 
 (,q) 4 B. & C. 235. 
 
 (r) 1 E. & M. 239. 
 
 (s) Earl Falmouth v. Thomas, 8 Tyr. 26. 
 
 (1) Bates V. Curtis, 21 Pick. 247. 
 
BODT OB SUBSTANCE. — I, IN ASSUMPSIT. 360 
 
 given in evidence (f) (1) ; and tliis set of counts usually follows the com- iv. its 
 moa breach at the end of the first set of counts (m). The same necessity ^'^*^^' "• 
 may arise in actions by the assignees of a bankrvpl. And so in actions ^""'y- "^^^ 
 against A., B., and C, the husband of B., in order to give in evidence a action, 
 promise by A. and B., before the marriage of B. and C, to take the case i. in as- 
 cut of the statute, a count on such promise before marriage miist be add- sumpsit. 
 ed(.t;). In general, however, where there has been an absolute promise Common 
 or acknowledgment to the original creditor within six years, so as to take "°"°'^- 
 the case out of the statute of limitations, it suffices to declare upon the 
 original contract (?/) (2). In declaring at the suit of a surviving partner 
 in indebitatus, every count should technically state the death of the de- 
 ceased partner ; but if the death be averred in the first count it will suf- 
 fice, and a demurrer in respect of an omission in a subsequent count has 
 been considered frivolous (z) (3). 
 
 The statement of a breach of a special contract stated in assumpsit has The breach 
 already been considered (a). The Reg. Gen. Trin. Term, 1 W. 4, pre- ^^^'^^ ""- 
 scribed a more concise form of stating the breach of one or more common counts, 
 indebitatus counts than had heretofore been adopted, and which should be 
 pursued as an admirable model (6) (4). Even in assigning this breach 
 by non-payment of the common counts, it is advisable to admit in the ag- 
 gregate all payments made by the defendant on account, so as to avoid the 
 expense of a plea of payment (c). In an action by assignees in that char- 
 acter, a breach that the defendant did not pay the plaintiffs, without al- 
 leging as assignees, is sufficient on special demurrer, and indeed proper 
 and preferable (<i) . 
 
 We have already considered lohen the action of debt may be support- n- f best. 
 edie). In framing ih^ declaration in this action, the general requisites 
 and qualities of all declarations, which have already been pointed out 
 must be observed (/). The particular parts may be considered under 
 the same arrangement as in assumpsit (^g) ; and most of the rules to be 
 observed in framing declarations in that form of action "equally govern in [ *3 61 J 
 the action of debt, and therefore it will only be necessary to point out the 
 distinctions. 
 
 The title of the Court and the actual date of the day of delivering or Title of 
 
 Court, 
 
 (<) Ante, 208; 1 Young. & Jervis, 308; (a) Ante, 332. **™> ''«- 
 
 and see form, 2 Saund. 207, 208. (6) See form, post, vol. ii. °"®' """* 
 
 (u) See the forms, post, vol. ii., and see an (c) Aide, 338; Bosanquet's Rules. 85, 86; "ommenoe- 
 
 old form, 2 Saund. 207, 208. and see forms of admission post, vol. ii, °'™'- 
 
 (a:) 1 B. & C. 248; 2 D. & R. 363, S. C. (d) Cobbett v. Cookrane, 8 Bing. 17. 
 
 (y) Ante, 309; 7 Bing. 163. (c) Ante, 108 to 115. 
 
 (2) Undershell v. Fuller, 5 Tyr. 392; 1 (/) .;3n/c, 244 to 261. 
 
 Crom. M. & Ros. 900. (g) ^nte, 289 to 339. 
 
 (1) See Bishop v. Harrison, 2 Leigh, 532. 
 
 (2) Oliver v. Gray, 1 Har. & Gill, 204 ; Angell on Limitations, (2nd ed.) 315; Betton v. 
 Cutts, 11 N. Hamp. 170, 179; lUsley i>. Jewett, 3 Metcalf, 445; Chitty Contr. (7th Am. ed.) 
 82] in note. 
 
 The declaration on thedebt of a bankrupt or insolvent debtor, which has been revived by a 
 new promise, may be on the original debt. Maxim v. Morse, 8 Mass. 127; Shippey v. Hender- 
 son, 14 Johns. 178; Lang v. Mackenzie, 4 Carr. & Payne, 463 
 
 (3) See ante, 284, 285, and notes. 
 
 (4) One averment of a request and a refusal to pay is sufficient for any number of the com- 
 mon counts. Rider v. Robbins, 18 Mass. 284. 
 
S61 OP THE DECLABATIOM. 
 
 IV. IT3 filing the declaration and the wnwe, have already been considered (A). The 
 pAKTs, &c. commencement of the declaration preceding the statement of the cause of 
 5thly. The action is similar to that in assumpsit (i) ; except in the^ description of the 
 aotion." f""''" of action, when that is stated, and even that description may be omit- 
 1. In debt. ^^^ (^)- I^ ^^ action on a specialty, the party should be declared against 
 in the name by which he signed the deed (I). The debt demanded, if 
 unnecessarily stated in the commencement, should regularly be the aggre- 
 gate of all the sums alleged to be due in the different counts; but a mis- 
 take in this respect, whether more or less be stated, will not be a 
 cause of demurrer ; nor is it necessary to prove that that debt amount- 
 ed precisely to the sum alleged to be due (?w) (1). In general, the dec- 
 laration should be in the debet and detinet («) ; but upon the principle 
 that a man may complain of only a part of his grievance, and not of the 
 whole, the plaintiff may abridge his demand and declare in the detinet on\j, 
 instead of the debet and detinet (m). And in an action by and against 
 executors and administrators, the declaration should technically be in 
 the detinet only (2); except in an action upon a judgment recovered against 
 an executor suggesting a devastavit, when the debet and detinet is proper 
 (w); and the defendant cannot in such action plead jo/ewe administravit(p'), 
 (3). But a declaration in the debet and detinet against an executor is not 
 subject to a special demurrer, as the former will be rejected as surplusage 
 (;?). An heir should be sued in the debet and detinet, but the omission of 
 the debet will be aided by a verdict (c[). 
 
 On simple The mode of stating the cause of action varies as in assumpsit, accord- 
 con rac . jjjg ^^ ^j^^ nature of the contract or matter declared on, which, we have 
 seen, may be a simple contract, a specialty, a record, or a statute (r). In 
 debt on simple contract, express or implied, to pay money in consideration 
 of a precedent debt or duty, the subject-matter of the debt is to be describ- 
 ed precisely as in the common counts in assumpsit (s) ; but in point of 
 form the indebitatus count in debt differs from those in assumpsit ; . for al- 
 though the indebitatus count states that the defendant, on, &c. " was in- 
 L *2^2 ] debted to the plaintiff" in a named sum of *money " for goods sold," pre- 
 cisely as in assumpsit ; and it is not necessary to set forth the nature or 
 particulars of the debt with more precision than in that action (f) ; yet in 
 this indebitatus count, no promise should be stated as in as3umpsit(M)(4) 
 and although it has been usual to conclude each count with the allegation 
 that " by reason of the said sum of money being unpaid, an action had ac- 
 
 (ft) .,9n<e, 262 to 280. Debt, F.; 3 East, 2; Com Dig. Pleader, (f. 
 
 (i) .^raic, 285to289. See the form, posi, 8. 
 
 Tol. ii. (o) 1 Wils. 258. 
 
 (k) 11 East, 62; Straughan v. BUokle, 1 (p) Gardner o. Bowman, 4 Tyr. 412. 
 
 Harr. & WoU. 519. (q) Com. D-g. Pleader, 2 East, 2i 3Ea»t,2; 
 
 (I) Ante, 2^,2^5. 2 Saund 7. n. 4. 
 
 (m) Ante, 113, 114. See the form, post, (r) AiUe, 109 to 112. 
 
 vol. ii.; 11 East, 62. («) See the cases. Com. Dig. Pleader, 2 W. 
 
 (n) Com. Dig. Pleader, 2 W. 8; Bac. Ab. 11. 
 
 Debt, F. (0 2 T, K. 28; post, vol. ii. 
 
 (m) Per Lord Ellenborough, C. J., 4 M. & (u) Ii.; 12 Mod. 511; 8 B. & Aid. 208; 2 
 
 S. 125. Smith Rep. 618; 2 B. & P. 78. 
 
 (n) Post, vol. ii.; Rol. Ab. 603; Bac. Ab. 
 
 (1) See Hampton v. Barr, 3 Dana, 578. 
 
 (2) Childress v. Emory, 8 Wheat 642. 
 
 (8) Vide Spotewood v. Price, 3 Hen. & Monf. 123. 
 
 (4) Metcalf v. Robinson, 2 M'Lean, 363. But see State Bank v. Clark, 2 Pike, 376. 
 
BODY OR StlBSTANOE. — I. lU ASSUMPSIT. 362 
 
 crued to the plaintiff to demand and have the same from the defendant ^'^- '™ 
 beiug parcel of the money above demanded," yet that allegation is unnec- ''*''^'' "• 
 essary, and the usual breach at the end of the declaration will suffice (u); ^"'g^'oj''* 
 and the distinction is stated to be, that whenever the debt arises merely action, 
 by the judgment or obligation, <fec. and not from any thing dehors, a non- % In debt, 
 performance of the obligation is to be laid, and the conclusion is to be with 
 the breach ad damnum ; but that where the debt arises, not by the obli- 
 gation alone, but also by some matter dehors stated in the declaration, 
 there the count should conclude per quod actio acrevit, &c. as in debt on a 
 lease for rent {x). The quantum meruit and quantum valebant counts, 
 when formerly adopted, but which always seemed to be unnecessary and 
 injudicious(2/), resembled those in assumpsit, except that the words '■^agreed 
 to pay" should be inserted, instead of '■^promised to pay"(l)(2:), and that 
 such counts in general conclude with the same allegation per quod ac- 
 tio acrevit, &c. as the indebitatus count (fi()(2). And it has been recent- 
 ly held that the words " undertook and agreed to pay," in jt quantum mer- 
 uit count, do not necessarily import the form of action to be in assumpsit, 
 but are good in debt (6). The Reg. Gen. Trin. T. 1 W. 5, although it 
 does not prescribe any form in debt, yet directs that declarations on bills 
 and notes, and for common debts, shall be drawn as concisely in debt as in 
 assumpsit, and that no costs for any extra length shall be allowed, and as 
 the same rule impliedly abolishes a quantum meruit or valebant count in 
 assumpsit, so those forms are impliedly abolished in debt (c). 
 
 The mode of framing a declaration in debt on legal liabilities, on awards 
 and for escapes, &c. is shown in the second volume(rf)(3). Debt lies on a 
 special contract to pay money, and if ,such contract be specially declared 
 upon, and be not under seal, so that a consideration is necessary, the dec- 
 laration should show such consideration, and may in general be framed like 
 a declaration in assumpsit ; with this exception, that it must bo alleged 
 that the defendant agreed, not that he promised to pay (e) (4). 
 
 *In debt upon a specialty, the declaration usually proceeds at once to the f *363 1 
 statement of a specialty, without any inducement or statement of the On special- 
 consideration upon which the contract was founded (/); for in general ties, 
 the circumstances under which the deed was made are immaterial and a 
 consideration is seldom essential (g-) (6). It is principally in this respect 
 
 S'°\ r-fu'-n'^'A- ";i ^*^"''- ^*^'' ^"- ^.(''l-P'"'' ^°'- »5 «"'«' 108. See also Com. 
 
 (1) Glib. Debt, 415. Dig. Pleader, 2 W. 11 
 
 (1/) AnU, 109, note (ff). (e) See ante, 114; and as to variances in 
 
 (2) i>vpra, note («). stating the consideration and contract spb 
 (ffl) Pod,yo\. u.; Gilb. Debt. 414. ante,hl and 305. contract, see 
 (i) Gardner ». Bowman. 4 Tyr. 412, citing (/) See the cases, Com. Dig. Pleader, 2 W 
 
 Ninarn u. Bland, 3 Smith, 114. 9. . '5 c<»uoi, .i v». 
 
 (c) Seethe rule and prescribed form, post, ' (g) Plowd. 808; 8 T. R. 477; 4 East 200- 
 
 Tol. 11.; and the forms in debt, id. 1 Fonbl. 347; post, 399. ' 
 
 (1) Metcalf V. Robinson, 2 M'Lean, 363. 
 
 (2) Payne v. Smith, 12 N. Harap. 34. 
 
 (3) See Jacob v. United States. 1 Brock, 520. 
 
 (4) Metcalf «. Robinson, 2 M'Lean, 863. Where, in an action of debt, two several sums 
 are demanded as due and owing in separate counts, e. g.six hundred doUarsTn each, he d™- 
 laration should in the commencement demand the aegrelate amount the fir^t on„^^ll^AA 
 mand si. hundred dollars, &c. parcel, and the secofd ^nt s3\e for sUhuodreS^^^^^ 
 fltrey.' s'cot. 6^5!°''' "• '^*" ^'''' ' ^'°'^^"' '''■ See the second counUn Seymour.! 
 
 (5) The want or failure of consideration, is notsufSoient at law to avoid a snecialtv • and ^ 
 felsp represeptatipn pr wa^nty. whether in writing or parol, as to the qutity of property so W^ 
 
363 OF THE DECLARATION, 
 
 IV. ITS that the declaration on debt or covenant on a specialty differs from that 
 PAKT3, &o. jj^ assumpsit. Thus in debt upon a bond, the declaration states, " that the 
 5thly. The defendant, on, &c. by his certain writing obligatory, sealed with his seal, 
 aoHon" ^^^ ^^^ shown to the Court here, acknowledged, himself to be held and 
 2. In debt, firmly bound to the plaintiff in the sum of £ , to be paid to the plain- 
 tiff," and then states the breach by the non-payment of that sum. So, in 
 debt, or covenant upon a lease by the lessor against the lessee, it is not 
 necessary to set forth the lessor's title to the lands demised ; but the dec- 
 laration merely alleges " that the plaintiff, on, &c. by a certain indenture 
 made between him and the defendant, and under the defendant's seal, and 
 of which the plaintiff makes a profert, demised," &c. (Ji) ; and in this 
 case, if the title be unnecessarily set forth, an imperfect statement of it may 
 not bo fatal on error (i) (1). 
 Induce- Inducements however are sometimes necessary, and in the statement of 
 or not ne- them the preceding rules and observations in the statement of induce- 
 cessary. ments in assumpsit will be here applicable (A). In an action on a lease at 
 the suit of the assignee of the reversion, or of the heir of the lessor, or 
 by an executor of a termor, for rent which became due after the death of 
 the testator, the declaration must state the title of the lessor to the de- 
 mised premises, in order that it may appear that he had such an estate in 
 the reversion as might be legally vested in the plaintiff in the character in 
 which he sues, and legally entitle him to recover the damages claimed- in 
 respect of the breaches of covenant (J) ; and this even where the estate of 
 the plaintiff is derived from the king or a corporation (m) ; and such in- 
 ducement is specially traversable (w). Even if the omission to state the 
 lessor's title in an action by a reversioner be not aided by verdict (o), yet 
 after verdict, in covenant by a devisee in fee, an averment that the testa- 
 tor, the lessor, was seized and died seized, (not showing of what particu- 
 lar estate in the premises), is sufficient (;»). Such title is usually shown 
 by way of inducement preceding the statement of the lease ; as when the 
 action is at the suit of an heir, by alleging that the lessor was seized of 
 r*364 ] the *premises in his demesne as of fee (9) ; or when the estate demised is 
 copyhold, by showing tlie fact, and that the lessor was seized at the will of 
 the lord ; according to the custom of the manor (r) ; or where the plain- 
 tiff claims as assignee of a term, or as executor of the lessor for rent, &c. 
 due since his death, by stating that the lessor, at the time of making the 
 lease, was possessed of the demised premises for the residue of a certain 
 term of years, &c. (s). As, however, the lessor's title in the action upon 
 the lease by the owner of the reversion is only inducement, it is not neces- 
 sary to show its origin or commencement, although the lessor bad not a 
 
 (A) Stra. 230,231 ; 1 Saund. 233 a, note 2. (n) 4 Moore, 303; 1 B. &n. 531, S. C. 
 
 (t) Stra. 230, 231; Q,u<Bre it traversed by (o) See 11 Mod. 179; Vin. Ab. Title, D. 
 
 defendant, vide infra-. 16; 1 Shew. 71; 1 M. & P. 640, 612. 
 
 (k) Ante, 280 to 293. (p) 1 M. & P. 633; 4 Bingh. 646, S. C. 
 
 (I) 1 Saund. 233, n.2; Stra. 230; 7 T. R. (5) 2 Saund. 361, 416. 
 
 538; Com. Dig. Pleader, C. 86; Gilb. Debt, (r) Posi, vol. ii. 
 
 410; Dyer, 365 b; 4 Moore, 303; 1 B. & B. (s) Post, vol. ii.; 4 Moore, 303; 1 B. & C. 
 
 531, S. C; 1 Dowl. & Ry. N. P. 1; 1 M. &P. 531, S. C; 7 T. B. 538. See the various 
 
 633. See Post, vol. ii. as to manner of stat- modes of stating different titles and the nature 
 
 ing inducements. of the estate, and how acquired, post, vol. ii. 
 
 (ro) 1 Saund. 187, n. 1. 
 
 cannot be pleaded in discharge of a bond given for the consideration. Vroomnn v. Phelps, 2 
 Johns. 177; Dorian v. Sarmnis, Id. 177, n.; Dorr 11. Munsel, 13 Johns. 430. See the note vol. 
 2, p. 963. 
 (1) Backus V. Taylor, 6 Munf. 488. 
 
BODY OB SUBSTANCE— I. IN ASSUMPSIT. 364 
 
 title in fee-simple ; but had only a particular estate, that is, an estate less iv. na 
 than a seisin in fee-simple, as an estate tail, or for life, or years, &c. Thus, ^^^'^' °- 
 if the lessor held for a term of years, and the plaintiff sue as his executor ^^^'y- ^""^ 
 or assignee of the reversion therein, it is not necessary to deduce the title aotion. 
 thereto from the freeholder ; it suffices to show the term which the 2. In debt, 
 lessor had, and to deduce the title from him (/). This is an ex- on apeoial- 
 ception to the general rule that the commencement of particular ties, 
 estates must be shown in pleading (m). In these cases the lessee and his 
 assignee being estopped by the deed from denying the lessor's title gener- 
 ally, cannot plead nil habuit, or traverse the entii-e inducement ; but admit- 
 ting by Ids plea that the lessor had so7ne legal interest in the premises, 
 he may show that he was entitled to a different estate, and thereby in eff- 
 ect traverse the derivative title stated in the declaration (a;). The ■forin 
 of declaring against an heir is pointed out in the second volume («/) . 
 
 The time of making the contract should be stated as in assumpsit, and ^'"".^ "f 
 it must appear and be expressly shown, when a specialty is the gist of the ^oJaUy 
 action, that such contract was by deed; except in debt for rent on a de- and other 
 mise, which is perhaps almost the only instance where a deed may be ad- requisite 
 duced in evidence in support of a count not mentioning it (z). It must °' *sat«>n9. 
 also appear that the contract was under seal(l); but there are some tech- 
 nical words, such as indenture, deed or writing obligatory, which of them- 
 selves import that the instrument was sealed, and which will suffice(a)(2); 
 and the omission of the statement that the instrument was under seal will 
 be aided, if the defendant by his plea admit that the writing was sealed 
 (b). The delivery of the deed, *though essential to its validity, need not [ *365 ] 
 be stated in pleading (rf) ; and though dated on a particular day, a deed 
 may be stated in pleading to have been made on another day (e). 
 
 It is a general rule that in all pleadings, whether by a plaintiff or de- Profert of 
 fendant, if a deed be alleged, and the party claim or justif;/ under it, and ^peoia^y- 
 is presumed to have the deed in his possession, he must make a profert of 
 the deed (3), that is must profess that he brings it into Court to be shown 
 to the Court and his adversary ; the Import and practical meaning of which 
 
 (t) See Com. Dig. Pleader, E. 19, C. 43; (j) Seeanfe, 52. 
 
 post, vol. ii.; Stephen 2d edit. 364: («) 1 New Rep. 104, 109; 1 Saund. 276 a, 
 
 (u)Id.ibid. Co. Lit. 308b; ISaund. 186d, note 1, 2; 202, 211; 2 Id. 297, note 1: 
 
 n. 1. see however, ante, 110 ; 4 B. & C. 962, 963. 
 
 (a;) 7 T. R. 538, 589. See 4 Moore, 303; , (a) 1 Saund. 291, notel, 320, note 8; Com. 
 
 1 Dow. & Ry. t!(. P. C. 1; 2 Ring. 54; 9 Dig. Fait; Piatt on Cot. 6. 
 
 Moore, 130; 9 Bar. & Ores. 254; 4 M. & E. (6) Id.; Lord Raym. 1536, 1541; Cro. Car. 
 
 201, S. C. ; Seymour v. Franco, 7 Law Journal, 209. 
 
 18, K. B. ; and Whittou v. Peacock, in C. P. (rf) 1 Saund. 292, note 1. 
 
 2d June, 1885. Shearman, attorney. (e) 4 Bast, 477; 3 Salk. 120. 
 
 (1) Aco. Van Santwood D. Sandford, 12 Johns. 197. As to the law respecting seals, vide 
 Wai;ren ». Lynch, 5 Johns. 239. Phillips Ev. (Dunl. Ed.) 361. n. a.; 5 Johns. 247, n. b.; 
 Commonwealth v. Griffith, 2 Pick. (2d ed.) 17, 18, in note. 
 
 (2) Vide Van Stantwood v. Sandford, 12 Johns. 198; Lee 11. Adkins, Minor, 187. 
 
 (3) Bender v. Sampson, 11 Mass. 42; Soott v. Curd, Hardin, 64. 
 
 It is not necessary to make profert of a writing not under seal; Mason v. Buckmaster, Breese, 
 9; Hinsdale v. Miles, 5 Conn. 381. 
 
 Profert of a deed need not be mftde where it appears, that the deed is in the possession of the 
 adverse party. Barbour v. Archer, 3 Bibb, 8; Pranpis v Hplerig, \ A. K, Marsh. 93. 
 
 Vol. I. 50 
 
OF THE DECLARATION. 
 
 vr- ip is, that the party has the deed itself ready to give the opponent oyer there- 
 ''^™> *"■ of (/) (1). 
 
 Stilly, ^he The profert in curiam of the deed, or the excuse for the omission, usu- 
 aotion"^ ally follows the statement of the time of making the deed and of the parties 
 2. In "debt, thereto, and precedes the 'statement of the defendant's contract. Such 
 Qn specia-1- profert is usually in the following words : — " Which said writing obliga- 
 ties, ' tory (or indenture or articles of agreement), sealed with the seal of the de- 
 fendant, the plaintiif now brings here into Court, the date whereof is the 
 day and year aforesaid " (§■). The excuse for the omission of a pro- 
 fert being traversable must be stated according to the fact ; as, either that 
 <' the deed has been lost," or " destroyed," or " by accident," or that it is 
 in the possession of the defendant," and that " therefore the plaintiff can- 
 not produce the same to the Court" (A) (2). But in declaring upon 
 a bill of exchange or other simple contract, no profert is to be made (3). 
 So, when a conveyance operates under the statute of uses, as a lease and 
 release, or a covenant to stand seized to uses, it has been considered that 
 a profert is unnecessary (i) ; the reason assigned is that the party in such 
 case obtains his title, not in virtue of the intrinsic effect of the deed itself, 
 but by the operation of the statute, and is said to be in by the law ; as 
 tenant in dower by elegit, or statute staple in which case a profert need 
 not be stated (Ji). Nor is a profert necessary where the party, though he 
 relies on a deed, is not, by the form of his pleading, compelled to state or 
 £|,llude to it in his pleading, as in the case of a feoffment ; and the statute 
 against frauds, which requires that the livery should be accompanied by 
 some instrument in writing, has not altered the form of pleading (J) So 
 when a deed is stated only as inducement (jii) ; or where the plaintiff 
 [ *366 ] has *no right to the possession of it, or of the counterpart (?<) ; a profert 
 is unnecessary ; and it has been held that the assignees of a bankrupt ob- 
 ligee need not make a profert of the bond (o) ; and a sealed will, or an 
 award, though under seal, not being a deed in the technical sense of the 
 word, need not be pleaded with a profert (p)(4). But letters testament- 
 ary and letters of administration must be pleaded with a profert, at least 
 whpi; the executor or administrator is a plaintiff (^) (5). , 
 
 When or When a profert, or an excuse for the omission, was unnecessary, the 
 not Oyer 
 
 is demand. j. ^ ^^ ^^ proferts in general, see Com. Pig. Cro. Jao. 217 ; Crp. Car. 441 ; Co. Lit. 35 b, 
 
 ■ Pleader, b. P.; 1 Saund. 9 note 1; 10 Co. note 6; precedents stating it, 3 Wils. 134; 
 
 92 b;'i T. E. 388; post, vol. ii.; Stephen, 2d 3 Lev. 229; see 13 Vin. Ab. 76; see, howev- 
 
 edit. 487; as to oyer post, chap. v. s. 3; and er, post, vol. ii. 
 
 as to compelling a party to give copy of an in- (fe) Id.; 10 Co. 93; Stephen, 2d edit. 489; 
 
 Btrument not under seal, ^iW, 9th edit. 590. % Stark. Evid. 483, 1st edit. 
 
 is) Post, vol. ii. (.1) Id.; 3 T. R. 166; 8 Id. 573; 1 Saund. 
 
 (A) 3 T. E. 151 ; 2 Hen. Bla. 259; posi, vol. 276, n. 1, 2; post, vol. ii. 
 
 ii.; Campb. 557; 10 East, 57; as to the deed (m) 8 T. R. 573; Com. Dig. Pleader, 0. 
 
 being in the hands of a third person, Tidd, 9th 15. 
 
 edit. 587, 487. (») 1 Saund. 9 and 9 a, note 1 ; 1 Ves. 
 
 (i) 9 Moore, 593; Tidd, 9th edit. 587; see 394. 
 
 8T. E. 673; 1 Saund. 9 a, note 1; 1 Ves. (o) Cro Car. 209; CuUen, 417 sed quare. 
 
 394; 2 B. & P. 387; 2 Hen. Bla. 262; (p) 2 Saund. 62 b, note 5. 
 
 3 T. R. 166 ; Carth. 815 ; Dyer ; 277 a. ; (g) Stephen, 2d edit, 488. 
 
 ■ (1) Oyer need not be given ot an instrument tl^ati^ lost. Paddpok v. Higgina, 2 Root, 482; 
 Respublioa v. Coates, 1 Yeates, 2; Kellogg v Riggs, 2 Root, 126. 
 
 (2) Vide Phillips' Ev. 348; Cutts v. United States, 1 Galliipn, 69; Powers v. Ware,' 2 Pick. 
 451; Smith v. Emery, 7 Halst. 53; Eees v. Overbangh, 6 Cow. 748, 749. 
 
 (3) Mason v. Buckmaster, Breese, 9. See Anderson v. Barry, 2 J. J. MarsM. 265. 
 
 (4) Ace. Weed v. Ellis, 3 Caines, 256, 
 
 (5) See Brown v. Jones, 10 Gill. & Johns. 884. 
 
BODY OR SUBSTANCE. — I. IN ASSUMPSIT. 366 
 
 statement of it will be regarded as surplusage, and will not entitle the ^^- im 
 other party to oyer (r). And oyer of a private act of parliament or of a ^^"™' "• 
 record, as of letters-patent enrolled in Chancery, cannot be claimed,' g^uleof*^* 
 though pleaded with a profert (s). But where a profert, or an excuse for action, 
 the want of it is necessary, if the plaintijBF make profert of and thereby % In debt, 
 profess to produce the deed, when he is not prepared to do so, and thede- Onspftoial- 
 fendant plead non est factum, the plaintiff will be nonsuited on the trial t'e^. 
 as it will not be sufficient in such case to prove that the deed was lost or Proferti 
 destroyed, or in the defendant's possession Q) (1). If therefore in such 
 case the plaintiff be not prepared to produce the deed on oyer being claim- 
 ed, or at the trial, and has inadvertently pleaded the deed with a profert, 
 the declaration must be amended (2), and the circumstances which excuse 
 the omission to make a profert should be stated in the declaration (m). 
 However, the omission of a profert, when necessary, can only be taken ad- 
 vantage of by special demurrer (a;) (3). 
 
 In general, the declaration in debt n^pon a, specialty proceeds immediate- Statement! 
 Iv from the profert to the statement of the defendant's contract, without °^ Comii- 
 
 " CTCttZOTl ID. 
 
 disclosing the consideration upon which it was founded, because a con- ;„ general 
 sideration is not in general essential to the validity of a deed{y')(4:). But unneoessa- 
 in pleading a conveynnce under the statute of uses, it is necessary to state ^„°t^^ ^ 
 that a valuable consideration was paid (2), or that there was a, good con- specialty, 
 sideration, as in the instance of a covenant to stand seized to uses made r *367 I 
 in respect of relationship, &c. (a) ; in which cases if the statement of the 
 consideration be omitted,' the declaration will be bad oh special demur- 
 rer (6). Where a consideration is necessary to give validity to the deed,, 
 as where it operates in partial restraint of trade, the proper course is to 
 
 (r) 2 Salk. 497. (u) Id.; 1 Saund. 9 a, note 1. 
 
 (s) 1 T. R. 149; 1 Saund. 9 b. note 1. It [x) i & 5 Ann, 0. 16; Com. Dig. Pleader, 
 
 seems that in general profert of letters patent S. 17. 
 
 is necessary, see 5 Co. 74 b; ILd. Rayni. 299; (y) Ante, 363'. 
 
 Doot. Plac. 215; Liitw. 1172; Oro Jac. 317; (z) Post, vol. ii. 
 
 see 1 T. R. 149, 160; 1 Lil. Ent. 154; Com. (o) Post, vol. ii. 
 
 Dig. Pleader, 0. (i) 2 jften. Bla. 259, 261; 2 Saiiud'. 12, 
 
 («) 4 East, 585; 1 Esp. Bep. 337. notei 2b; 2Stra. 1229; 2 Saund. on Uses.eS'. 
 
 . (!1) Vide Phillip'.s Bt. 348; Moore !) Penwiok, Oilman, 214. 
 
 (2) See Powers v. Ware, 2 Pick. 460. A party can demand oyer of a bond only once in tlia 
 same suit. Taylor v. Bank of Kentucky, 2 J. J. Marsh. 564. 
 
 (3) Babk U. States v. Sill, 5 Conn. Ill; Brown v. Copp, 5 N. Hamp. 223; Way i*. Swift, 12 
 Vermont, 390; Mallory «. Matlock, 7 Alabama, 757; Tutiker v. Real Estate Bank,' 4 Pik e,' 
 
 But see Metcalfe v. Standeford, 1 Bibb, 6I8, where it is held thtit want of proferl: of tie deed' 
 declared on is ground for general demurrer. See however, Anderson 1). Barry, 2 J. J. Marsh; 
 265; Briggs v. Greenlee, Minor, 128. 
 
 To deny oyer where it ought to be granted is error, but not e converso. State v. Hicks, 2 
 Blackf 336. 
 
 A writing proffered is not part of the record unless oyer is taken. Adams v. Maby, 1 Bibb, 
 328; Gist v. Steele, 1 Bibb. 571; Wriston v. Lacy, 7 J. J. Marsh. 219; Palmer v. M'Ginuis 
 Hardin, 505. See Tuggle v. Adatosj 3 A. K. Marsh. 429. ' 
 
 A profert made does not require the plaintiff to produce the original; a certified' oofiy is suffi- 
 cient. Butler V. State, 5 Gill & Johns. 511. Unless he has made profert of tlie orig^inU, in 
 which case he would be compelled to pfoduce it, if oyer of it is insisted on. Carson 1) Pearl. 
 4 J. J. Marsh. 92. 
 
 The defendant craving oyer is entitled to a copy of the attestation and to the names of thfe wit- 
 nesses. Smith V. Alworth, 18 Johns. 445. 
 
 See further as to oyer and profert. Commonwealth v. Roby, 12 Pidk. 496; Guild' v. Riohiitd- 
 son, 6 Pick. 364; Story v: Kimball, 6 Vermont, 541; U. States v. Sawyer, 1 Gallis, 86; Pollard 
 V. Toda, 2 A. K. Marsh. 264; VanRtosSelMr «. ?oUchet, 24'Wehdell,316j' Jarman*. Wihd^otj 
 2 Barring. 162. ' 
 
 (4) Grubb v. Willis, 11 Sergl & Rawle; 107. 
 
*367 OF THE DECLABATION. 
 
 IV. m siio-w fully the consideration 'expressed in the deed ; but an allegation in 
 PAKT3, &o. ^jjg declaration in setting out the deed, that it witnessed that the defend- 
 5thly. The ant covenanted " for the consideration, therein mentioned," is sufficient on 
 action" general demurrer (c). So, when an act to be done by the plaintiff was the 
 2. In debt, consideration of the defendant's covenant, and constituted a condition pre- 
 On special- cedent, it is necessary to show such consideration as well as the perform- 
 ^^- ance of it {d^. It is sufficient if the consideration or condition be stated 
 
 according to its legal effect (e), but a variance would be fatal (/); and in 
 stating the consideration, when necessary, the whole of it should be set 
 forth (g-). The rules as to the statement of the consideration in an action 
 of assumpsit (K) have equal relevance to the action of debt in those instan- 
 ces in which it is essential in the latter form of action to show the exist- 
 ence of a consideration for the defendant's contract. 
 
 The ape- Jq stating the Contract by. deed, either in debt or covenant, the rules 
 
 Cmtrdct w;liich we have considered in pointing out the mode of framing the decla- 
 
 itself. ration in assumpsit in general apply. The defendant's contract should in 
 
 strictness be set forth in positive terms, and not with the testatum existit, 
 
 viz. that " it was and is witnessed " by the deed, &c.; but this will suffice 
 
 in a declaration, though it may be objectionable in a plea (i). 
 
 In considering the mode of setting out a contract in assumpsit, we have 
 fully explained the rule that an ijastrument should be stated according to 
 its legal operation and effect; or may, as it seems, be set forth in hcec 
 verba, and the expediency of adopting the latter course in some instances 
 has also been suggested (A) (1). We have also under the same head 
 pointed out the mode of pleading contracts or obligations, which are in 
 the alternative or conditional, or subject to exceptions, provisoes, and 
 qualifications, and have fully considered the doctrine of variances in re- 
 gard to a misstatement of the contract or instrument in material or trivial 
 respects (/). As these principles and rules equally apply to debt or cove- 
 nant upon specialties, it will be useless here to repeat them. The late 
 statutes, 9 Geo. 4, c. 14, and 3 & 4 W. 4, c. 42, s. 23, permitting cler- 
 ical mistates in stating instruments to be amended even pendii;g a trial, 
 has also been alluded to (»i). The impolicy of setting out unnecessary 
 covenants and clauses (w), and the doctrine of surplusage (o) have also 
 undergone consideration in a preceding part of this volume. 
 [ *368 ] •*In many cases it is necessary to introduce in the declaration an Aver- 
 ment of Performance by the plaintiff of a condition precedent or other 
 matter, or to show a legal excuse for the omission to perform the act ; and 
 in some instances it must be alleged that the defendant had Notice of the 
 plaintiff's completion of the matter he was bound to perform, and was 
 
 (c) Bing. 322. anle, 238, 803. 
 
 (d) 2 Saund. 352 b; 6 East, 568; 8 T. R. (k) Ante, 305, 307. A Declaration setting 
 690; unle, 320 to 327. out the/ae simile of a deed, will be read so as 
 
 (c) Ante, 305. to make it sense, hovpever incorrect and illit- 
 
 (/) 3 Moore, 114; as to variances, ante, eral the deed may be, Smith u. Barnard, E. 
 
 298, 805, T. 1818, K. B. MS. 
 
 (a) Ante, 299; 2 B. & Aid. 765; 1 COiitty'a (/) Anle, 303, 305. 
 
 Rep. 718, S. C. (m) Ante, 319. 
 
 (h) Anle, 273, 297. {«) Ante, 228. 
 
 (i) 1 Saund. 274, note 1; 2 Id. 319,note5; (o) Anle, 229. 
 
 (1) Contracts must be set forth in the words, or acooording to their legal effect; but if there 
 are distinct parts of an agreement, in declaring for the breach of a particular part," other parts 
 need not be sot forth. Scott v. Lieber, 2 Wend. 479.; Davis v. Shoemaker, 1 Rawle, 135. 
 
BODY OE SUBSTANCE.— I. IN ASSUMPSIT. 868 
 
 requested to fulfil his, tKe defendant's covenant. Our observations upon i^. ng 
 these points in assumpsit (jp) equally apply to actions upon specialties. ""arts, &c. 
 In actions on specialties, after stating the covenants, it is usual., though ^^^'y- '^^^ 
 unnecessary, to refer to the indenture by the words " as by the said in- action. 
 denture fully appears ;" and in actions on lease to state the lessee's entry 2.' in debt, 
 on the demised premises (g)' ; and when the action is between the orig- On speoial- 
 inal parties to the contract, the declaration then proceeds immediately to ties. 
 the averments of the plaintiff's performance of the conditions precedent, Keferenoe 
 when necessary, and to the breach. But when the declaration is by or !.° ^ \ 
 against a person who was not a party to the original contract, and partic- eatry!* ^ 
 ■ ularly in actions upon leases, the statement of the derivative title of the perform- 
 plain tiff or the defendant precedes the breach. And in an action on a anoeof 
 lease by- a party claming from the lessor, there must be an inducement of conditions 
 the lessor's title, as before explained (r). Thus, when an action is 1™°*' ^°' 
 . brought by the heir of the lessor, the title and death of his ancestor, and of z»m'm- 
 the descent to the plaintiff as heir, is shown (s) ; and it must appear how .tive Titli. 
 he is heir, viz. whether as son or otherwise (/) ; and if he claim by medi- 
 ate, not immediate, descent, he must show the pedigree ; for example, if 
 he claim as nephew, he must show how nephew (m). And when the 
 plaintiff claims as assignee of the reversion by lease and release or other 
 conveyance, the nature and operative part of the conveyance must be set 
 forth (y). In an action brought by the assignee of a term, all the mesne 
 assignments of the term down to himself should be specifically stated ; for 
 he being privy to them, shall not be allowed to plead generally " that the 
 estate of the lessee of and in the demised premises came to him by as- 
 signment ;" but when the action is brought against the assignee of a les- 
 see, such general form of pleading is sufficient, because the plaintiff is a 
 stranger to the defendant's title, and it is therefore reasonably supposed 
 he cannot set it out particularly (1). It is not, however, sufficient in the 
 latter case to allege that the tenements came to the defendant by assign- 
 ment ; but it must be shown that he is assignee of tiie term, or estate, or 
 interest therein ; for otherwise it might be an assignment of another es- 
 tate than the term of the lessee. The usual form is, " that all the said 
 estate, right, title, *and interest of the said B. P. (the lessee) of, in, and [ *369 ] 
 to the said demised premises with the appurtenances, afterwards, to wit, 
 on, &c. by assignment thereof then duly made, came to and vested in the 
 defendant" (x) (2). An heir may be sued either generally as heir, with- 
 out showing how he became so, or if he has held possession, or exercised 
 acts of ownership over the property, he may be declared against as an as- 
 signee, upon a covenant running with the land («/). And an executor 
 who has entered, &c. may be sued in the debet and detinet as assignee for 
 rent which became due after the death of his testator, who was the les- 
 see (z). The mode of declaring by and against persons suing or being 
 
 (p) Ante, 327 to 334. Rep. 1099. 
 
 (j) Post, Tol. ii. (») Post, vol. ii. ; Com. Dig. Pleader, E. 23, 
 
 (r) Ante, 363. 24. 
 
 (s) Post, vol. ii. [x) 1 Saund. 112 a, note 1; post, vol.ii. 
 
 (i) 1 Salk. 355; 1 Lev. 190; 1 Ld. Eaym. (y) 1 Sallc. 355; 4 T. R. 75. 
 
 202. (2) lSal]£317; 4 T. R. 75. 
 («) 3 B. &P. 453; 12 Mod. 619; 2 Bla. 
 
 (1) Vide FoUiard v. Wallace, 2 Johns. 402; Norton v. Vultee, 1 Hall, 894, 389. 
 
 (2) Landsing v. Alstyne, 2 Wend. 661. 
 
369 
 
 OF THE DECLAKATION. 
 
 IV. ITS 
 PAKT3, &0. 
 
 5thly. The 
 cause of 
 action. 
 2. In debt. 
 
 As to set- 
 . ting forth 
 Condilion 
 of Bond 
 and assign- 
 ing breach- 
 es in the 
 Declara- 
 tion{b). 
 
 sued in a representative or derivative character, is pointed out in the nu- 
 merous precedents in the second volume (a). 
 
 Sometimes it is absolutely necessary in declaring on a bond, to set forth 
 the condition and breach, as in an action on a bail bond or replevin bond, 
 in order to show that the plaintiff is entitled to sue as assignee of the 
 sheriff, or in the case of a bastardy bond, that the succeeding overseers 
 are entitled to sue (c). 
 
 In other cases where, under the 8 & 9 W. 3, c. 11, s. 8, it is necessary 
 before execution to ascertain in what respect the special condition has 
 been broken, and to assess by a jury what damages have been really sus^ 
 tained {d) ; there has been some contradiction in the books as regards 
 the expediency of setting out the condition and breaches in the decla/ra- 
 tion, or waiting till the replication or other stage in the cause (e). 
 
 In practice it is now most usual not to state the condition or the breach- 
 es in the declaration ; but there may be cases in which it would be advisa- 
 ble there to state them. The assigning of the breach or breaches is affect- 
 ed by the same rules as those relating to the breach in assumpsit or cov- 
 enant. If the breach of the condition be well assigned in other respects, 
 it will not be vitiated by the superaddition of immaterial allegations (/). 
 
 (a) On bonds by or against particular per- 
 sons. Post, vol. ii. ; against an lieir or devisee, 
 id.; statements ol various titles, id, 
 
 (4) See post, vol. ii.; 2 Arch. K. B. 609. 
 
 (c) 2 New Rep. 362. 
 
 (d) As to what bonds are not within that 
 statute, seepos(, vol. ii. 
 
 (e) See 1 Saund. Kep. 58 d. ; 2 Saund. Rep. 
 107 a, note 2, 187 a; 8 T. R. 255; 2 Chitty 
 Rep. 187; 3 Car. & P. 608; posi, 618, 5th edit. 
 In some cases, though not absolutely requisite, 
 it may be advisable to state condition of the 
 bond and breach in the declaration and espe- 
 cially where a plea not leading to an issue, or 
 the breach, as non est factum or the like, or 
 where a judgment by default is expected, for 
 in the latter case some delay would be avoided, 
 and the plaintiff moreover would not have 
 to prove, nor could the defendant deny the 
 truth of the breach on the execution of the in- 
 quiry, which would otherwise be the case. See 
 1 Saund. 58 d. ; BarWise v. Russell, 3 Ca. & 
 P. 608; and see Hodgkinson v. Marsden, 2 
 Campb. 121. And in Cox and others v. Hol- 
 lingworth, in K. B. Aug. 1835, Alderson, 
 B., on summons, directed the plaintiff to de- 
 clare on the bond, setting out the condition 
 and breaches; and Stothert v. Goodfellow, 1 
 Nev. & Man. 202, the declaration set forth 
 the condition, and assigned breach. 
 
 On the other hand, in many cases where 
 it is not absolutely necessary to state the 
 condition and breaches in the declaration, it 
 may be advisable not to do so, and especially 
 where a defence either sham or otherwise, is 
 expected. In such cases it is best to reserve 
 the assignment of the breaches for the repli- 
 catiqn, (as may be done 8 T. R. 255; 2 Chit. 
 Eep. 298; 2 Saund. 187 a,) because the de- 
 fendant in rejoining to the replication, can on- 
 ly present one answer to each breach, whereas 
 in pleading to the declaration and breaches 
 stated therein, he may answer each breach by 
 
 any number of pleas. 
 
 If the condition and breach of a bond with- 
 in the above statute of William 3, be not sta- 
 ted in the declaration, and the defendant plead 
 any plea on which the plaintiff might at com- 
 mon law have taken an issue in his replication 
 without showing a breach, such as a plea of 
 non est factum, or that the bond was obtained 
 by fraud or the like, the plaintiff may still 
 take such issue, and must enter a dlKtinct and 
 separate suggestion of breaches under the stat- 
 ute, but he cannot incorporate such issue and 
 such suggestion in one and the same replica- 
 tion, see 8 T. R.255; 1 Esp. 277; 5 M. &Sel. 
 60; 5 J. B.Moore, 198. 
 
 If to such a declaration the defendant plead 
 a plea which made it necessary at icommon laW 
 for the plaintiff to assign a breach in the repli- 
 cation, as for instance, a plea of general per- 
 formance, the plaintiff must still assign the 
 breach in the replication, with this difference, 
 that he may now assign several breaches un- 
 der the statute.whereas at common law he could 
 only assign one. If only one breach be assign- 
 ed in the replication, it is not necessary to state 
 it in terms to be "according to the form of the 
 statute," 13 East, 1, otherwise if more than 
 one. 
 
 Before the above statute of William 3, the 
 plaintiff' could assign in the declaration only 
 one breach of the condition, and if he assign- 
 ed more, the declaration was demurrable for 
 duplicity, 1 Saund. 58, n. 1, and this is ex- 
 pressly permitted by Reg. Gsn. Hil. T. 4 W. 4, 
 Teg. 5, although several counts are not per- 
 mitted. It is not, however, necessary in a 
 declaration assigning nlore than one breach to 
 refer to its being according to the statute, 13 
 East, 1. It suffices to prove part of the breach 
 assigned, id. 
 
 (/) Stothert v. Goodfellow, 1 Nev. & Man. 
 202, the form of declaration in which' will as- 
 sist as a precedent. 
 
BODY OR SUBSTANCE. — I. IN ASSUMPSIT. 370 
 
 The breach of the condition of a bond, otherwise well assigned, is not tI- i^- i^ 
 tiated by the superaddition of immaterial allegations (^). pakts, o. 
 
 We have seen that debt is the proper remedy on Records, as recogni- ^*'y- '^^ 
 zances of bail, statutes merchant, recognizances in the nature of a statute- action, 
 staple, and on judgments (K). The validity of these cannot in general in % in debt. 
 pleading be impeached or affected by any supposed defect or illegality in On records, 
 the consideration or transaction on which they were founded ; nor can 
 there be any allegation against the validity of a record (1), except by a 
 writ of error (J) ; and consequently it is not necessary to state the circum- 
 stances or consideration on which the record was founded. In debt upon 
 a recognizance of bail, it must be stated with certainty, following the de- 
 scription in the entry of the recognizance, and should set forth in what 
 Court, at whose suit, and for what sum or cause the defendant became 
 bail (k) ; and in pleading a statute staple, it should be shown to have been 
 by writing obligatory or under seal (Z). Formerly in an action upon a 
 judgment, it was usual to set forth in the declaration the whole of the pro- 
 ceedings in the former suit ; but this is no longer the practice (m) ; and it 
 is sufficient to state the judgment concisely, even though it were recovered 
 in an inferior *Gourt not of record ; and although it has been supposed to [ ^71 J 
 be unncessary to aver that the defendant became indebted within the ju- 
 risdiction of the Court (w) (2) ; it has been recently held that it must be 
 averred that the original cause of action arose within the jurisdiction of 
 the inferior Court (o). It is unquestionably necessary in debt upon a 
 judgment in the Courts at Westminster, to show with certainty the term 
 and parties and th§ sum recovered. It is said that if the declaration be 
 on a judgment in the Common Pleas, it should be stated before what judg- 
 es by name it was recovered (p) ; and that in debt on a judgment in an 
 inferior Court, the names of the suitors who were the judges should be sta- 
 ted ; but the omission will at all events be aided by verdict (^q). 
 
 Care must be taken that there be no Variance in the statement of the Variancea. 
 judgment, for such variance is in general fatal (/•). Thus, if there has been 
 a judgment for ^£888 Os. Id. and debt be brought on it as for £388 recov- 
 ered, omitting the penny, it was a variance (3), and could not be cured (s) 
 
 (s\ Stothert v. Goodfellow, 1 Nbt. & Man. Tyr. 403; OTerruling 1 Wm.Saund. 92, note 2. 
 
 2027 (p) Com. Dig. Pleader, 2 W. 12, 3 L. 3. 
 
 (A) Ante, 111. But3ee tlie usual form, post, vol. ii, 
 
 (i) 4 East, 311 ; 2 Lev. 161 ; Gilb. on Uses (3) Id.; Cartli. 86. In debt on replevin 
 
 and Trusts, 109; Gilb. Debt, 412; Burr. 1007; bond it is not necessary, in averring the hcld- 
 
 3 East, 258; 3 T. R. 689; 2 Marsh. 392, 393. ing of the County Court, to state the names of 
 
 (7c) IWils. 284; post, vol. ii.; Com. Dig. the suitors, 2 B. & C. 2. 
 
 Pleader, 2 W. 10. As to variance, see 11 (r) Ante, 230, 205; 11 East, 516; "The 
 
 East, 516; 4 Bar. & Ores. 403. said Court of the Bench" means C. P. 7 
 
 (i) Cro. Car, 363; Com. Dig. Pleader, %W. Taunt. 271; 1 Moore, 19, S. C. An aver- 
 
 10. ment that judgment was recovered on promi- 
 
 (m) 1 Wils. 318. ses, whereas it was recovered on one count on- 
 
 (m) 1 Wils. 316; 1 Saund. 92, note 2; ly, was considered a fatal variance ; 5 B, & C. 
 
 post, vol- "•; Com. Dig. Pleader, 2 W. 12; 339. See other instances in the notes, post, 
 
 Carth. 85, 86; Thomp. Ent. 118; 8 T. R. vol. ii. 
 
 127. (s) 2 Stra. 1171; 9 East 157; 1 Esp, Rep. 
 
 (0) Read D. Pope, 1 Cr. M. & R. 302; 4 356; 4 Taunt. 13; llEa.st, 516; IH.Bla, 49. 
 
 (1) Greens. Ovington, 16 Johns. 55; Wright ». Mott, Kirby, 152; Bush v. Byvanlss, 2. 
 Boot, 248; Biddlei;. Wilkins, 1 Peters, 686. See Cardesa v. Humes, 5 Serg. &,Rawle, 65. 
 
 (2) See Hubbard v. Davis, 1 Aiken, 296. In declaring on a justice's judgmenjt of a sister 
 state, the statute giving jurisdiction to the justice must be pleaded. Sheldon v. Hopkins, 7 
 Wendell, 435. As to the declaration on a justice's judgment rendered in the state where the a?r 
 tion is brought, see Stiles a- Stewart, 12 Tirendell, 473, 
 
 rR^ Vidn Bissell «. Kin. 6 Johns. 89. 
 
371 OP THE DECLARATION. 
 
 IT. IT3 by a remittitur of the penny (1). In debt upon a judgment, or other mat- 
 pAETs, So. ^gj, Qf i-ecord, unless when it has been stated as inducement, it is necessary, 
 cause' f'*'^ ^^''^^ showing the matter of record, to refer to it by the prout patet per re- 
 action." cordum (0(2)- But the omission will be aided unless the defendant demur 
 2. In debt. specially(M); and these words do not render certainty of description in the 
 Variances, allegation more material than it would otherwise have been(.^). It is usual 
 also to allege that the judgment still remains in full force and effect, and 
 that the plaintiif has not obtained execution or satisfaction thereof; but 
 this allegation is unnecessary (^) (3). The late statutes (z), permitting 
 the amendment at the trial of clerical errors and other variances in stat- 
 ing a record, &c. have been fully stated (a). 
 
 On statutes. Jq (jgbt On a Statute at the suit of a party grieved, or by an informer, 
 where the whole of the penalty is given to him, the commencement is the 
 same as in debt on a contract ; but where a part of the penalty is given 
 
 [ *372 J to the informer and the king, or the poor of the *parish, &c., the com- 
 mencement and other parts of the declaration usually state that the plain- 
 tiff sues qui tarn, &c., though this is not necessary unless there has been a 
 contempt of the king (6). In a declaration on a public statute, it is not 
 necessary or advisable to state the title or year of the reign when the stat- 
 ute was passed, or to recite any part of the act ; and if it be unnecessarily 
 stated, any material variance will be fatal, particularly if the declaration 
 conclude against the form of the statute aforesaid (c) ; and it would be 
 fatal to describe a statute as made in 2 and 3 years of the ireign' of W. 4, 
 though if stated to have been made in a sessions holdtn in the 2 and 3 
 years of the reign, it would have suf&ced (li). It is material however in 
 all cases that the offence or act charged to have been committed or omit- 
 ted by the defendant, appear to have been within the provision of the 
 statute, and all circumstances necessary to support the action must be al- 
 leged (4), and the conclusion contra forman statuti will not aid the omis- 
 
 (0 Gilb. Debt, 412; Willes, 127, in whioh n. 1. As to variance in stating the parish, 
 
 Salk. 595, referred to in Com. Dig. Pleader, 2 ante, 358; 3 Bing. 439. As to pleadings in 
 
 W. 12, is corrected. general on statutes, see Com. Digi Pleader, C. 
 
 (u) 4 & 5 Anne, c. 16, s. 1; and see 11 76; Bao. Ab. Statute; 1 Saund. 135, n. 3; 2 
 
 East, 565. Saund. 377 b, n. 12; 1 Chit. Grim. Law, 275' 
 
 {x) 10 Price, 154. &c. 
 
 \y) 1 Saund. 230, note 4; sed vide Com. (c) Ante, 215; Com. Dig. Action on Stat- 
 
 Dlg. Pleader, 2 W. 12. ute, H. 1; 2 Saund. 374. n. 2; 6 T. R. 776; 
 
 («) 9 Geo. 4, 0. 15; 3 & 4 W. 4, o. 42, s. 2 East, 341; 1 Saund. 136 a, note, 5th edit. 
 23. (d) Rex v. Biers, 1 Adol. & Ell. 327; and 
 
 (a) Ante, 315. see Com. Dig. Action on Statute. 1 J. B. 
 
 (A) Com. Dig. Action on Statute, E. 1; 7 Moore, 302; Cowp. 474. 
 T. R. 152; 1 Saund. 136, u. 1; 2 Saund. 374. 
 
 (1) In an action of debt on recognizance of bail; a variance of six cents in the amount of the 
 judgment against the principal, between the declaration and the record produced, is fatal on the 
 plea of nul liel Record, Bibbins v. Noxou, 4 Wendell, 207. ' See Keyes v. Throop, 2 Aiken, 
 276; White v. Walker, 1 Monroe, 34. In debt by " S. B., junior," on a judgment, the dec- 
 
 ■ laration set forth a judgment in favor of "S. B.;" but, on being produced, it was in favor of 
 "S. B., junior;" this was held to be a variance. Boyden v. Hastings, 17 Pick. 200. 
 
 (2) Jarman v. Winsor, 2 Harring. 162. 
 
 (3) But see Dewey v. Bradbury, Tyler, 207. 
 
 (4) M'Keon v. Lane, 1 Hall, 318; Burnham d. Webster, 6 Mass. 270; Bigelow v. Johns- 
 ton, 13 Johns. 428; Hassenfrast v. Kelley, 18 Johns. 468; Ellis v. Hull, 2 Aik. 41; Greer v. 
 Bumpass, Mart. & Yerg. 94; Prigmore u. Thompson, Minor, 420; State v. Aiken, 7 Yerger, 
 268; Governor w. Horton, 1 Munf. 212; Drowne d. Stimpson, 2 Mass. 441, 444; Williams v. 
 Hingham Turnpike, 4 Pick. 841; Soper v. Harvard College, 1 Pick. 177; Bath v. Freeport, 5 
 Mas3. 825; Hall v. Bramstead, 20 Pick. 2; Berry v. Stimaou, 28 Maine, 140. Brown v. Barman, 
 
BODY OR BUBSTANCE.— 1. IN ASSUMPSIT. 872 
 
 sion (e). If, however, the necessary matter be stated in substance and ^- i™ 
 effect, it will suffice, although the precise words of the statute are not ^■^^®' "• 
 used ; and therefore a declaration iov feloniously setting fire to two stacks ^*^'y- ^'*® 
 of oats is sufficient, though the words of the act are unlawfulbj and mail- action. 
 ciously {/). The instances in which in declaring upon a statute it is 2. In debt, 
 necessary to set out and negative an exception or proviso, which qualifies On stat- 
 or discharges the liability in a certain event, have been already pointed "'^' 
 out and explained (g-). In a declaration on the game laws it is not ne- 
 cessary to negative the particular qualifications, though it is otherwise 
 in an information (A). When an act of parliament, which has been re- 
 cent/// passed, enacts that if a party commit an offence after a named day 
 he shall be liable to a penalty, it is usual to aver that the offence was 
 committed after that day ^ but when the act has been long passed such 
 averment is not necessary (t). It is usual also when the particular stat- 
 ute limits the time within which the action should be brought to aver that 
 the offence was committed within such time ; but this also does not seem 
 material (Jc). 
 
 Where the act or omission, which is the foundation of the suit, was not Contra 
 an offence at common law, it is necessary in all cases to conclude *" against formam 
 the form of the statute,'" or " statutes ;" (/) or to show at least that the dec- '/"ioTo t 
 laration is founded on the statute, by introducing the words deplacito trans- l J 
 
 g-ressionis et contemptus contraformam statuti (jn) (1) ; and this is necessa- 
 ry also in an action to recover back money won at play (w) (2). In debt 
 for the recovery of a penalty given by statute for an offence thereby created, 
 the Court arrested the judgment, on the ground that the declaration, after 
 truly describing the offence, contained no averment that the offence was 
 committed " contrary to the statute," although it was alleged " whereby 
 and by force of the statute in such case made and provided the defendant 
 forfeited .£100, and thereby and by force of the statute an action hath ac- 
 crued," &c. (0). The words " whereby and according to the form of the 
 statute" will not suffice, when the action is founded on two statutes (p) ; in 
 
 (e) 1 Saund. 135, note 3; 1 Salk. 212; {I) 2 East, 339; 1 Saund. 134, note 8; 6 
 
 Com. Dig. Action, Statute. A. 3; Pleader, C. East, 140; 7 /d. 516; 1 Chitty. Crim. Law, 
 
 76; 1 Taunt. 128. 511; 1 New Rep. 245; 1 290; 3 B. & C. 186. 
 Leach, Cro. Law, 4th edit. 493; 2Marsh. 364, (m) 2 East, 341; see 3 B. & C. 189. 
 
 n. c ; 13 East, 258. (n) 1 M. & Sel. 500. 
 
 ( /•) 3 Wils. 318; 2 Bla. Kep. 842; 5 East, (0) 3 B. & C. 186; 5 D. & R. 186, S. C; 
 
 244; 2 Marsh. 364; but see 1 Leach, Cro. sed vide 9 Price, 897, in which part of the 
 
 Law, 4th ed. 493. ' Court held that an information for a penalty 
 
 {g) Ante, 222. for smuggling was good,although the word "con- 
 
 (A) 1 T. R. 144, 145; 1 Lev. 26; Com. Dig. trary to the statute" were omitted in desorib- 
 
 Action on Statute, 1 East, 639 ; 2 Com. Rep. ing the offence, such offence being laid minute- 
 
 524. ly, so as to bring it within the words of the act, 
 
 (i) Gilb. Cases L. & E. 242; 1 Saund. 309, and it being alleged that the forfeiture was 
 
 note 5; and see Fitzgib. 136; Bac. Ab. Usury, "according tothe statute." Sed quwrt. 
 K. 209. (p) 2 East, 340. 
 
 (k) 2 East, 340, 362. 
 
 21 Barbour, (N. Y.) 508; Metcalf u. Hetherington, 32 Eng. Law. and Eq. 599. A declaration 
 to recover damages given by a special statute, should contain allegations embracing all the 
 material elements of the statute. Henniker v. Contoooook Valley R. R., 9 Foster, (N. H.) 146. 
 
 (1) Wells V. Iggulden, 5 Dowl. & Ryl. 13, and 5«<E7-e, whether the words {contraformam 
 ttaiuli) can be supplied by any other words of equivalent import. Barter v. Martin, 5 Oreenl. 
 76; Peabody v. Hoyt. 10 Mass. 36; Cross v. United States, 1 Gallis 26; Sears v. U. States, id 
 257; Haskell v. Moody, 9 Pick. 192; Nichols w. Squire, 5 Pick. 168; Smith v. U. States, 1 
 Gallis, 261 ; Barkhamstead v. Parsons, 3, Conn. 1 ; Sorpter v. Harrington, I Hawks, 192 
 
 (2) M'Keon v. M'Caherty, 1 Hall, 300. " 
 
 Vol. I. 51 
 
373 
 
 OP THE DECLARATION. 
 
 rv. ITS 
 
 PAKT3, &0. 
 
 5thly. The 
 cause of 
 action. 
 2. In debt. 
 On stat- 
 ntes. 
 
 [ *374 ] 
 
 Per quod 
 actio ac- 
 crevit. 
 
 Statement 
 of the 
 Breach in 
 general in 
 Debt. 
 
 this case the conclusion should be " against the form of the statutes" (q) (1). 
 Where, however, a statute refers to a former act, and adopts and contin- 
 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 
 foundation of the action, and the others are explanatory or restrictive, it is 
 proper to conclude against the form of the statute in the singular num- 
 ber Q). The omission of the words " against the form of the statute," 
 or " statutes," when proper to be inserted, is fatal even after verdict (m).- 
 In general, however, there is no difference as to the doctrine of amending 
 at common law between penal and other actions (a;) ; and the statute 3 
 Geo. 2, c. 26, extends the provisions of the statute of jeofails to penal ac- 
 tions (2/) ; and it has before been determined that the 32 Hen. 8, c. 30, 
 extended to penal actions (ar). 
 
 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 6 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 inform- 
 er, the half only of which had been given to him by an intervening stat- 
 ute (6). 
 
 As the action of debt is only sustainable for the recovery of a debt, the 
 breach is necessarily confined to a statement of the non-payment of the 
 money previously alleged to be payable ; and such breach is nearly simi- 
 lar, whether the action be in debt on simple contract, or upon a specialty, 
 record or statute, and is usually as follows : — " Yet the defendant, al- 
 though 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 tarn, <fec. 
 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 
 
 (g) 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. 0. 26, s. 117; sed vide 2 East, 
 P. C. 601, 599; 2 Hale, 178; Cro. Eliz. 750; 
 2 Leach, 827. 
 
 (0 Yelv. 11; 2 Saund. 377 note 12. , 
 
 (tt) 2 East, 333; Willes, 599; 1 M. & Sel. 
 500; 3 B. & C. 186. 
 
 {X) 1 Saund. 250 d; 1 Stra. 137; 2 Id. 
 
 1227; 1 Wils. 256; 1 Burr. 402. 
 
 (y) Willes, 600. 
 
 (s) 3 Lev. 375; 1 Stra. 136; 2 Id. 1227; 
 Dougl. 115. 
 
 (a) SeeSB. & C. 189. 
 
 (A) 7 East, 216; see 2 East, 338. 
 
 (c) This ia to be the sum named in the com- 
 mencement of the declaration, being the ag- 
 gregate of all the sums stated to be due in the 
 different counts. 
 
 (1) Vide Hayward v. Sheldon, 13 .Johns, 88; Kenwiok v. V. States, 1 Gollis, 
 
BODY OB SUBSTANCE. — I. IN ASSUMPSIT. 37^. 
 
 of the plaintiff of £ and thereupon he brings suit, &c." (1). In debt i^. its 
 
 upon a bond, whether it be a common money bond, or be a special bond ^•^"'^^' '• 
 for the performance of covenants, &c. within the statute (rf) i\ie penally \s ^^^^^^ 
 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, Damagesin 
 and not, as in assumpsit, the principal object of the suit ; and therefore a ^^^ ™ 
 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 & 
 4W. 4, c. 42, s. 28 (e). 
 
 *In an action by a common informer, as he is not entitled to damages, no [ *3<75 ] 
 claim for them should be inserted (/). 
 
 As the action of Covenant can in general only be supported on a deed i"- '" 
 (g"), there is less variety in the declarations in that action than inassump- '"'■''*=''^*- 
 sit 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 oi 
 debt equally apply in framing the declaration in this action. The Com- 
 mencement 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.(/j) ; the consideration of the deed (i); the mode of setting out 
 the deed (&); the profertQ) ; the usual averments and statement of title, 
 &c.(ot.); and the statement of the breach (w)(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 
 
 (d) 8 & 9 Wm. 3, e. 11, s. 8. ante, 305, 308. Amendment, 319. 
 
 (e) Watkins v. Morgan, 6 Car. & P. 661. (Z) Ante, 305. 
 (/) 4 Barr. 2021, 2490. Quare, whether (m) Ante, 368. 
 
 the statement might not be rejected as sur- (n) Ante, 374. And the rules as to as- 
 
 plusage ? signing a breach in assumpsit may in geneiiil 
 
 (g) Ante, 115, 118. As to the action of be applied to covenant, see ante, 332; as to a 
 
 covenant in general, see ante, 115 to 120. general assignment of breach, ante, 335 ; 
 
 (A) AnU, 363. post. 
 
 (t) Ante, 366. (o) Pearce v. Morrioe, 3 Bar. & Adol; 
 
 (*) Ante, 305, 307, 867. As to variances, 396. 
 
 (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 ». Millard, 17 Wend. 331. 
 
 (3) As to the mode of assigning breaches in covenant, see 1 Met. & Perk. Dig. Tit Coven- 
 ant, Ch. IX. d. Breach. 
 
875 OF THE decLabation. 
 
 IV. ITS breach of each separate covenant contained in the deed (^p). And the gen- 
 pAKTs, &o. gj.^j pleading rules, Hil. T. 4 W. 4, reg. 5, although they prohibit sever- 
 5thly. The g\ counts, expressly permit several breaches. It is usual, after stating the 
 action." 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 (g'). Damages being the principal object in this action 
 (r), there should be laid as such a sum sufficiently large to cover the ut- 
 most demand, and even a claim for interest, when claimable under 3 & 4 
 W. 4, c. 42, s. 28 (5). 
 
 [•376 ] *IN ACTIONS FOR TORTS. 
 
 THE STATE- Actious in form 63; delicto are Case, Trover (t). Replevin, Trespass, 
 actions'es ^""^ 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, 
 ot ACTION, .^jjj^ notes explanatory of the different allegations, &c. (m). 
 
 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 g-ewera/ rules ; and then state the particular rules rela- 
 ting to declarations for lorillen and verbal Slander. 
 
 Ist. State- Iq actions brought for injuries to real property (v), the quality of the 
 ™ottcr or * realty, as whether it consists of houses, lands, or other corporeal heredi- 
 thing ia- taments, should be shown (.r). If the declaiation charge " the breaking 
 jured. 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 tres- 
 passed on leads forming the roof of a counting-house, occupied by A. B. 
 but used only as an easement to the plaintiffs house («/). 
 
 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 («). 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, bo 
 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; ISaund. 58 b. ii. Declaration in Detinue, Case, Trover, 
 
 (q) ISaund. 236 a, note 7 ; post, vol, ii.; Replevin, Trespass, a.nd Ejectment. 
 
 See 2 i'aunt. 278. (v) As to the rule in a real action for the 
 
 (r) 18 East, 343. recovery of realty itself, Stephen, 2d edit. 347, 
 
 (s) Watljins v. Morgan, 6 Car. & P. 661. 849; torms post.' -vol. iii. 
 
 (/) As to detinue being an action ex con- (z) Stephen, 347, 2d edit. 
 
 iractu, see ante, 121, 200, note(A). (i;) 3 C. & P. 331. 
 
 («) The author would suggest to the stu- (2) Dr. & Stud. 30; 7 East, 207; Tin. Ab. 
 
 dent the perusal of the forms as the best m ode Fences; ante, 174. 
 
 of understanding the general rules here at- (a) Lempriere v. Humphrey, i Nev. & 
 
 tempted to be explained with regard to the Man. 638; 2 Harr. & Woll. 171; and see form 
 
 constructions of the pleadings. See pott, vol. and notes, pott, vol. ii. 
 
BODY OB StJBSTANCE. — IN ASSUMPSIT. 376 
 
 in the singular, and it appeared in evidence that the plaintiff 's close abut- ^v- "f 
 ted on a close of the first named defendant, it was held that this was an '''"'''' ' 
 ambiguity, not a variance (6) (1). ^^^J^ f^^ 
 
 As trespass (c) and ejectment (rf) 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" (/). 
 
 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 precau- 
 tion 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 (A). 
 Where a declaration in case alleged that " the plaintiff was possessed of a 
 house, belonging to and supporting which there were cavizXn foundations, 
 which the plaintiff had enjoyed, and ought to enjoy ;" it was held that this 
 was a sufficient description of the plaintiff's fight 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 (/). There- 
 fore, in all the forms of action for a tort to goods, it is in general insuffi- 
 cient, oven after judgment by default or verdict, to allege that the defend- 
 ant 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 na- 
 ture (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- 
 
 (4) Walford J). Anthony and others, 8 Eing. (h) H.; post, 386. 
 
 75. ■ (i) 1 Cromp. & Jerv. 20. 
 
 (c) Ante, 174. (/c) See 11 Rep. 25, 26; 1 Saund. .333, n. 
 
 (d) Jlnle, 188. 7; 2 Id. 74, note 1; 4 Burr. 2455; Stephen, 2d 
 
 (e) 2 M. &. P. 78; as to stating the parish, edit. 347; M'Clel. R. 277, 278. 
 ante, 276. (0 M'Clel. K. 278; 11 East. 576. 
 
 (/) Yelv. 168. (m) Vide last two notes; and 7 Taunt. 
 
 (g) 2 Saund. 172, note 1 ; 1 Taunt. 142; 4 642; 1 Moore, 386, S. C. ; 8 Id. 379. 
 
 T . R. 160; Bui. N. P. 59; 1 Campb. 315 a; (») 5 Rep. 34 b; see observations 2 Saund. 
 
 4 Id. 189; 2 Hen. Bla. 234; Vin. Ab. Pre- 74, note, 1 ; 348. 
 
 scriptions, VV.; 1. Esp. Rep. 437; Selw. N. P. (o) 8 Moore 379: see, however, 2 Saund. 
 
 Trespass, IV. 7. 74 a, note. 
 
 (1) In trespass guare clausum f regit, it is necessary to x>rove the abuttals of the close, as 
 stated in the declaration ; but the abuttals are not to be construed strictly. Wheeler v. Row- 
 ell, 6 N. Hamp. 215; Hogmire ». M'Coy, 2 Harr. & Johns. 341; Hooker v. Hioook, 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. C'ruiUshanks, 3 M'Cord, 84; Rich v. Rich, 16 Wendell, 
 660; Penslee v. Wadleigh, 5 N. Hamp. 317; Rice v. Hathaway, Brayt. 231 ; Austin v. Morse, 
 8 Wendell, 476; EUet v. PuUen, 7 Halst. 357; Smith v. Wilson, 1 Dev. & Bat. 40; White v. 
 Moseley. 5Pick. 230. 
 
 (2) Vide the people v. Dunlap, 13 Johns. 446. 
 
377 
 
 OP THE DECLARATION. 
 
 IV. ITS ceedingly similar, there is but little practical utility in this rule except as 
 PARTS, &o. j.ggar(js the description of a close by abuttals. 
 
 5thly. The Jq trover, trespass, and case, less particularity is required than in 
 aetiou" detinue and replevin, because it is only in the two latter forms of action 
 r *378 1 ^^^^ '^^ plaintiff can claim or *recover the goods themselves (jp). In tro- 
 ver, trespass, and case, damages only are recoverable, and the specifica- 
 tion of quality and quantity in a general way is allowed ; as " two packs of 
 flax," " two ricks of hay," a " library of books "(9)(0- ^^^ ii 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 damag- 
 ing " the goods and chattels therein," and wrenching open and injuring 
 the " doors thereof" Q). 
 
 "With regard to the quality or species of the goods, the plaintiff is per- 
 haps bound to prove the fact as laid (m) ; 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 un- 
 der 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 («/). 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. 
 
 2dly. 
 
 Statement 
 of the 
 plaintiff's 
 riqht or 
 interest in 
 tuch mat- 
 ter, S[C.(z). 
 
 The plaintiffs right or interest in or title to the matter or thing affect- 
 ed may exist independently of any particular obligation or duty on the 
 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 
 the parties, or an implied obligation of law, resulting from the defendant's 
 particular character or situation (2). Where the law gives a general ov 
 public right, as for all persons to fish in a public navigable river, it is im- 
 proper, at least unnecessary, specia% to state such public right, -and it 
 will suffice to show with brevity that there was a public right, as the in- 
 stance just put that such a particular place was a public navigable river, 
 
 (p) 2 Saund. 74, note 1. 
 
 (g) 2 Saund. 74, note 1; Stephen, 349, 
 350. Cattle may he deeoribed with a videlicet 
 under the word "chattels," 17 Edw. 3, pi. 41. 
 
 (r) 4 B. & Aid. 271; per Cur. 
 
 (s) Salk. 643; after verdict, 2 Saund, 74 b, 
 n. 1 ; Stephen, 2 ed. 350. 
 
 (i) 3 Wils. 292. 
 
 (a) See Stephen, 2 ed. 352. 
 
 (k) As to the videlicet in general, see aide, 
 317. 
 
 (J/) See 8 Taunt. 107; M'Clel. Kep. 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 con- 
 verted. 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, 8 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 possess- 
 ion. 
 
 "A Black mare, of the value of f 100" held a sufiBoient description. Heddy d. Fnllen, 1 Blaokf. 
 51. See Vanarken, u. Wickham, 2, South. 509. So four horses the property of the plaintiff. Beau- 
 mont 1). Yantri. Breese, 8. Annexing a schedule to a declaration in trover or renlevin is improp- 
 er. KinderD.'Shaw, 2Ma6S. 398; Rideri). Robbins, 13ib. 284. 
 
BODY OR SUBSTANCE. — I. IN ASSUMPSIT. 87 
 
 and that the defendant prevented the plaintiff from fishing, &c. (a). And iv. us 
 whenever the right of the plaintiff is implied by law, as the absolute right ^'^™' *"• 
 of personal security, it is unnecessary to state the same in pleading. Thus, S'%- The 
 in actions for assault and battery, false imprisonment, words or libels aotiol. 
 when actionable in themselves,' and malicious prosecution, it is sufficient 
 to allege the injury, without any inducement of the plaintiff's right to per- 
 sonal security, &c.; though it is usual in an action *for slander to begin. [ *379 ] 
 the declaration with a statement of the plaintiff's good character (^). 
 But where the law does not imply the right to the matter or thing affected, 
 it must be stated either generally or specially (c) ; in other words, some 
 general or special allegation of a title or right must be made in the dec- 
 laration. Thus, in a declaration for slander, affecting a person in the 
 way of his trade (1), his carrying on the particular trade must be shown 
 by way of inducment (i^). And in an action for an injury to the relative 
 ■ ri^ht of persons, the relation of husband (e), or master (/) in respect of 
 which the plaintiff was injured, must be stated. 
 
 It is chiefly in actions for trespass and torts, committed to and in re- 
 spect oi personal and real property, that it becomes material to consider 
 to what extent the plaintiff must show his tille or interest. It is Hardly 
 _ necessary to observe that if no property or interest in the subject-matter 
 of the suit be stated in the declaration to have existed, or been vested in 
 the plaintiff, at the time the wrong was committed, the omission will be 
 fatal even after verdict : the objection being the total omission, not the 
 defective statement of Si title (^g). But the error in the declaration may 
 be cured if the plea admit the plaintiff's property (A). 
 
 The fundamental rule upon the subject of showing title in actions ex de- 
 licto is, that against a mere wrong-doer, or person apparently having no 
 color or right, mere possession suffices, and a special statement of title is 
 unnecessary (i). In personal actions therefore title is mere inducement, 
 at least in a pleading point of view, as regards the declaration ; although 
 in real actions (A), and as we shall hereafter observe in many pleas in 
 personal actions, a strict a,nd particular statement of title is essential. In 
 personal actions damages are the gist of the suit ; in real actions </te right 
 or title forms the prominent subject of inquiry (l)- 
 
 It is proposed to defer the consideration of the rules affecting the state- 
 ment of a title specially, and the mode of pleading a derivative title, a 
 right by custom, prescription, or grant, &c. until we examine *the struc- L 3°" ] 
 ture of pleas, in which title is in general to be shown with particularity. 
 
 (0) Willes, 268; Van. Ab. Prescription, this purpose, and until the defendani has 
 v.; lA. Raym. 1091. pleaded and shown a superior title, he must 
 
 (6) Post, vol. ii. be tahen to be a mere trespasser, Steph. 357. 
 
 (c) Com. Dig. Pleader, C. 34. Even in an action ot ejeciment, where the gen- 
 
 (d) 1 Saund. 242 a, note3; 2 Saund. 307, eral rule is iAoi iAe lessor of the plaintiff must 
 n. 1; 2 B. & P. 284; post, vol. ii. ; as to this, recover upon the strength of his own title as 
 post, 400, 401. proved by him, yet mere priority of possess- 
 
 (e) Pos(, vol. ii. ion vfill enable a plaintiff to recover against 
 (y ) [d. a third person, a trespasser, who iutrudes, Uoe' 
 {ff) 2 Saund. 379, n. 13. Com. Dig. Plead- v. Cook, 7 Bing. 346. 
 
 er, 3 M. 9. (k) Com. Dig. Pleader, 3 I. 5; Bui. N.^ P. 
 
 (A) 1 Sid. 184. 122; post, vol. iii. 
 
 (i) Ante, 62, 148, 168, 175; 10 Co. 59 b; (/) As to the distinction between actions 
 
 Com. Dig. Plead. C. 39, 41; Tidd, 9th ed. that sound in damfli/es and those that do not, 
 
 443; Steph. 2d edit. 356; 1 East, 212. For Steph. 2d ed. 138, 474. 
 
 (1) So, in a declaration, for slander of an attorney there must be a colloquium of his. pro- 
 fession. Gilbert v. Field, 3 Caines, 329. 
 
380 OF THE DECLARATION. 
 
 IV. ITS In trespass, trover, detinue, case or replevin, for an injury to or tak- 
 PAIIT3, &c. ,-|^g away, &c. goods, the plaintiff's right to or interest in the goods, either 
 causeof^''^ as absolute owner, or as having a limited right therein (m), is not other- 
 action, wise described in the declaration than by the averment, that they were the 
 goods " of the plaintiff," or " that he was lawfully possessed of them as 
 of his own property" (w) (1). When the plaintiff has not a possessory 
 right, and his interest in the chattel is reversionary, it mast be expressly 
 so described in the declaration, which, as we have before explained, 
 must then be framed in case(f>). 
 
 Upon the principle just alluded to, in trespass for a wrong relating to 
 land, or other real property, a special or particular title in the plaintiff 
 need not be shown in the declaration. The averment in describing the 
 trespass, that the close or house, &c. in reference to which it was com- 
 mitted, was the close, &c. " of the plaintiff," or other equivalent allega- 
 tion (p), is sufficient (9) ; and under it may be given in evidence any title 
 or interest in possession, which is adequate to the support of the form of 
 action under the circumstances of the case (2). 
 
 In other personal actions for injuries to reaZ property corporeal or incor- 
 poreal, it was formerly usual to state the plaintiff 's title specially, as that 
 he was seized in his demesne as of fee of a house, mill, &c. and was en- 
 titled by prescription or grant, &c. to the right of common, way, water- 
 course, or other right affected (r) ; but it is now fully settled that in a 
 personal action against a, ivrong-^oer (or the recovery of damages, and not 
 the land itself, is sufficient at common law to state in the declaration that 
 the plaintiff, at the time the injury was committed, was possessed of a 
 house or land, &a., and that by reason of such possession he was entitled 
 to the common of pasture, way, or other right, in the exercise of which he 
 has been disturbed (s). And though a distinction has been taken be- 
 tween a declaration against a wrong-doer and against the owner of the 
 soil (t) ; and it has been considered that in the latter case the plaintiff's 
 * title by grant, &c. must be specially stated, because it might be qualified 
 
 [ "SSI J by some condition *precedent, the performance of which ought to be shown 
 &c. (m) ; yet it appears sufficient in both cases to declare generally on the 
 plaintiff's possession; though in a. plea it was, before the statute 2 & 3 
 W. 4, c. 71, necessary to state the seizin in fee and prescriptive right or 
 grant {x). And in pleading a prescriptive right of common, &c. a:s a jus- 
 tification, the defendant must show a seizin in fee of the land in respect of 
 which it is claimed, and prescribe in the que estate for the right ; and if 
 
 (m) As to the distinction, and wlien such n. 1, 172, n. 1; 3 T. R. 766; Willes, 508, 
 
 parties may sue, see ante, 62, 148, 168, 175. 654; 1 Saund. 34fi, n. 2; 6 East, 438, n. a; 
 
 (?0 See 2 Saund. 279, n. 13; Stephen, 2d see precedents, post, vol. ii. 568 to 674, 10 
 
 ed. 355; post, vol. ii. As to the words "as Co. 59 b. 
 
 of his own property," posi, vol. ii. (() See 4 Mod. 421; 1 Stra. 5; Willes, 
 
 (0) Ante, 147, 148, 152; post, vol. ii. 619; 1 Burr. 440; 4 T. R. 718; Tidd, 9th 
 
 {p) Com. Dig. Pleader, 3 M. 9. edit. 444; 1 T. R. 431. 
 
 (0) Id. 2 Bulstr. 288; post, vol. ii. Steph. (u) 1 Burr. 443, 444. 
 
 2d edit. 355, 356. {x) 8 T. R. 766, 768; 2 Saund. 113 a, n.l, 
 
 (r) See the oases in Com. Dig. Pleader, C. and oases there collected; and see the pre- 
 
 34, to C. 38; 2 Saund. 113 a, n. 1; and pre- cedents, Lutw. 119, 120; 1 Barnard, K. B. 
 
 cedents referred to, 1 Saund. 346, n. 2. 432; 6 East, 438, n. a; 1 Kol. Rep. 894; 1 
 
 (!) Com. Dig. Pleader, C. 39, and Action Show. 18, 19; 3 Lev. 266; 4 T. R. 719; 1 
 
 on the case for Disturbance, B. ; 2 Saund. 113 a, Saund. 346, n. 2; post, vol. ii. 
 
 (1) Good V. Harnish, 14 Serg.'& Bawle, 99; Carlisle v. Weston, 1 Met. 26; Heath v. Con- 
 iray, 1 Bibb, 398; Smith v. Hancock, 4 ib. 222; Donaghe v. Roundebough, 4 Munf. 251. 
 
 (,2) Hite V. Long, 6 Rand, 457. 
 
BODY OR SUBSTANCE. — IN ACTIONS FOR TORTS. S81 
 
 he claim as tenant of the freeholder, he must prescribe in the latter, not i^- «» 
 in himself (?/). '^^'^'^' ^'•>- 
 
 If the right of common, way, or -watercourse, &c. be not appurtenant to ^"^y- J**^ 
 the house, land, &c. and the plaintiff be entitled thereto by agreement or action? 
 license, the allegation in the declaration that he was entitled, " bi/ reason How to de- 
 of the possession, ^c." would be improper («). And when a reversioner olare if 
 sues for an injury to houses, land, &c. in possession of his tenant, his in- a^'^J'^"' 
 terest must be described accordingly ; though it is sufficient to allege nan"' *' 
 generally that the lands were in possession of the third person, " as tenant How to de- 
 thereof to the plaintiff," without stating seizin in fee, &c. (as). clarebya 
 
 In an action on the case for obstructing ancient (6) lights, the declar- ^l^ 
 ration usually states that the plaintiff, at the time of committing the griev- How to de- 
 ances complained of, was lawfully possessed of a messuage, situate, &c. "l*™ *<>'. 
 wherein there of right were and ought to be certain windows, through ^ anSent" 
 which the light and air ought to have entered the messuage, and then states lights, 
 the injury ; and this is sufficient without alleging that the windows were 
 ancient (c). So, if the declaration be for diverting a watercourse from orwater- 
 the plaintiff's mill, his possession of the mill should be concisely stated, «o"''se. 
 and that by reason thereof he ought to have had the use and benefit of the 
 watercourse, without stating that it was an ancient mill, or disclosing the 
 particular grounds upon which the right to the water is claimed (d). And or common 
 in an action for a disturbance of a right of common (e), or way (/), or "^ T"??' '" ^ 
 of a seat ov pew in a church (g-), the declaration states the possession of a pevr, &c. 
 house, or land, &c. and that by reason thereof the plaintiff was entitled to 
 the right, in the exercise of which he had been disturbed. The same mode Disturb- 
 of declaring has long been considered to be sufficient in *actions for dis- ^^'^ of 
 turbance affranchises, or subtraction of tolls (Ji), ferries (i), and offices p""^"^*' 
 (Je). The mode in which an easement may be claimed has been already [ 382 } 
 pointed out (J). In case, upon a custom for not grinding at the plaintiff's 
 mill, the plaintiff may declare generally, without showing the amount of ^ 
 
 toll or the consideration for it {m). And where a corporation brings an 
 action for any due, it is sufficient to state in a declaration, though it is 
 otherwise in a plea, that it is an ancient borough, and that the burgesseS 
 thereof are, and for divers years have been, a body politic, in the nan^e of 
 the mayor &c., without setting out the name of incorporation, or any title 
 to the duty ; for the declaration being founded upon their possession, there 
 is no necessity to state a title to the thing (w). However, though it is 
 not necessary in these actions for damages to lay a title in the declaration 
 by grant or prescription, &c. yet the title or consideration must be proved 
 
 {y) 3 You. & Jerv. 93. (ft) 2 Saund. 113 a, 172 o, n. 1; 6 Eas(t, 
 
 (a) 4 Bast, 107; 6 Id. 438; post, vol. ii. 438, n. (a); ■Wille3,'654; Owen, 109; Cro. 
 
 See 15 East, 108; 3 Taunt. 24. Jae. 43; post, toI. ii.; 1 Cromp. & Jerv. 57. 
 
 (a) Post, V. ii. Wliennot, seelGam. 320. (i) 6 B. & 0. 703; Willes, 608; 2 Saund. 
 
 (A) As to the word "ancient" in this case, 114, 172, n. 1; 2 You. & Jerv. 285; title 
 
 IM. &1VI. 400. thereto, W. 
 
 (c) Post, vol. ii.; Cro. Car. 325; 1 Show. (fc) 10 Co. 59 b; Cro. Eliz. 335; 8 Wentw. 
 17, 18. Index, 58; Morg. Prec. 345, 347; 4 Mod. 
 
 (d) Post, vol. ii.; 1 Leon. 247; Palm. 290; 422. 
 
 3 Lev. 133; 4 Bast, 107. See 2 B. & C. (Z) .dn^c, 377. 
 910. (m) 6 M. & Sel. 69. 
 
 (e) SeePost, »ol. ii.; 4 Mod. 418; 1 Saund. (») 1 Saund. 840, n. 2; Owen, 109; Cro. 
 346, m. 2; Comb. 370. Jao. 43, 223; 2 Ventr. 291; 6 East, 438. 
 
 (/) Post, vol. ii. What a variance, 1 Cam'^b. 466; 8 East, 
 
 (g) Id. Quare, if the plaintiff claim 487; 6 Taunt. 467; 2 Marsh. 174, S. C; f 
 against the ordinary, Tidd, 9th ed. 444. Taunt. 546; I Moore, 367, S. C, 
 
 Vol. I. 52 
 
382 
 
 OP THE DECLABATION. 
 
 IV. us 
 
 PAETS, &0. 
 
 Sthlju The 
 cause of 
 action. 
 
 on the trial (o). It suflBces to aver, that the plaintiff had the title or 
 right when the wrong was committed ; and an averment that he still is 
 possessed may be rejected as surplusage (/?). 
 
 In affirmaijce of this' common }aw right of declaring generally in these 
 
 Mode of 
 ' declaring 
 where de- 
 fendant is 
 under any 
 particular 
 obligatiop 
 or duty. 
 
 case and other pleadings, wherein the party claiming may now by law 
 allege his right generally, without averring the existence of such right 
 
 ■ from time immemorial, such general allegation sliall still be deemed suffi- 
 cient ; and if the same shall be denied, all and every the matters in this 
 
 , act mentioned and provided, which shall be applicable to the case, shall be 
 
 . admissible in evidence to sustain or rebut such allegation." 
 
 With respect to pleas and subsequent pleadings, such a general mode 
 of stating a right of common or other easement, &c. in a justification was 
 not permitted (g), and every defendant was required in his plea to show a 
 seisin in fee of the land in respect of which it was claimed, and to pre- 
 
 ' scribe in the que estate for the right, and if he claimed as tenant of a free- 
 holder, he must have prescribed in the latter, not in himself (r). But the 
 above statute now authorizes a *more general plea, as will be shown when 
 we examine the requisites of pleas (s). 
 
 When the plaintiff's right consists in an obligation on the defendant 
 to observe some particular duty, the declaration must state the nature of 
 such duty, which we have seen may be founded either on a contract be-- 
 tween the parties, or on the obligation of law, arising out of the defend- 
 ant's particular character or situation ; and the plaintiff must prove such du- 
 ty as laid, and a variance will, as in actions on contracts, be fatal. When 
 the declaration is for the breach of an express or implied contract, and 
 proceeds for nonfeasance, the consideration of the contract must be stated 
 either in terms or in substance (<) ; but when it is for a misfeasance or 
 malfeasance, no consideration need be stated (m) ; and when it is found- 
 ed on the obligation of law, unconnected with any contract between the 
 parties, it is sufficient to state very concisely the circumstances which gave 
 rise to the defendant's particular duty or liability ; as in actions against 
 sheriffs, carriers, innkeepers, &c. (x.) Where the defendant is liable of 
 common right, as to repair a wall for preventing damage to his neighbor, 
 according to the maxim, sic utere tuo ut alienum non Icedas, it was always 
 considered sufficient to state that the defendant was possessed of a certain 
 close, &c. and ihaXby reason thereof he was bound to repair, <fec. without 
 showing the particular ground of the defendant's liability (2/). But Vhere 
 a charge was imposed on another against common right, as owner of the 
 soil or terre-tenant, it was formerly thought that the plaintiff ought to dis- 
 close the particular ground on which the defendant's liability is found- 
 ed (2) as in an action for not repairing a fence, or for not keeping a bull 
 or a boar, &c. (as). But it is now settled that there is no foundation for 
 
 (0) 2 Saund. 114 c; 4 Mod. 421. 424; 1 
 Saund. 346, u. 2. 
 
 (p) 3 Taunt. 137. 
 
 (g) Anle, note. 
 
 (r) 3 Young. & Jerv. 93; and see forms of. 
 pleas, post, Tol. iii 
 
 (s) And see forms, post, vol. iii. and Bo- 
 sanquet's Rules, 117. 
 
 (t) 5 T. R. 148; 3 Wils. 348; 12 East, 94. 
 
 (») 6 T. R. 143; 3 Wils 348; 3 East. 62; 
 6 East, 332; 2 Lord Raym. 909; 12 East, 
 89, 
 
 (a) 5 T.R. 149, 150; 1 Saund. 312 c, n 2; 
 12 East, 89. 
 
 (y) 6 Mod. 311; 1 Salk. 22, 360; Ld 
 Raym. 1090; post, toI. ii.; 3 T. R. 766. 
 
 («) Ante, 860. 
 
 (a) 1 Salk. 335, 336; 4 Mod. 241. 
 
BODY OB SUBSTANCE. — IN ACTIONS FOE TOBTS. 383 
 
 this distinction ; and in the case of Rider and Smith (6), where an action "• ms 
 was brought for the defendant's not repairing a private road leading ^^™' *"*' 
 through his close, it was held sufficient to allege that the defendant as f^^^ '^^^ 
 occupier of the close ought to have repaired it (1) ; and Mr. Justice Bui- aoUon.° 
 ler stated the distinction to be between the case where the plaintiff in his 
 declaration lays a charge on the right of the defendant, and where the 
 defendant in his plea prescribes in right of his own estate ; in the formfer 
 case the plaintiff is presumed to be ignorant of the defendant's estate, and 
 therefore need not state it, but in the latter the defendant, knowing *his [ *384 ] 
 own estate in right of which he claims a privilege, must set it forth (c). 
 
 In an action on the case, founded on an express or implied contract (d), 
 as against an attorney, agent, carrier, innkeeper, or other bailee, for neg- 
 ligence, &c. the declaration must correcth/ state the contract, or the par- 
 ticular duty or consideration from which the liability results, and on 
 which it is- founded (e) ; and a variance in the description of a contract, 
 though in an action ex delicto, may .be as fatal as in an action in form ex 
 contractu (/). The declaration in such case usually begins with a state- 
 ment of the particular profession or situation of the defendant and his re- 
 tainer, and consequent duty or liability (g-). The declaration will be 
 defective if it do not show that by express conti*act, or by implication- of 
 law in respect to the defendant's particular character or situation, &c. 
 stated by the plaintiff, the defendant was bound to do or omit the act in 
 reference to which he is charged (h). In an action for a breach of War- 
 ranty the contract of sale is stated (i) ; and in a declaration by a landlord 
 against his tenant for not cultivating according to good husbandry, or for 
 not repairing, or for waste, &c. the relation of landlord and tenant is con- 
 cisely stated (A). In a declaration on the case against a surgeob for im- 
 proper treatment of the plaintiff, whereby he was worse, &c. it is sufBcient 
 to aver that the defendant was a surgeon and "was retained and em- 
 ployed as such," (not stating by whom,) " for reward to him," to treat 
 and cure the plaintiff, and that the defendant entered upon the treat- 
 ment, 'Sfc. without showing any undertaking by defendant, or averring 
 in words that it " was defendant's duty to act skillfully, &c." (T). Care 
 must be taken in declaring in case in actions of this nature that the count 
 be not framed as in assumpsit, laying a promise, &c. (m). 
 
 Declarations for non-observance of the general obligation of law may 
 be either for the consequences of the negligent driving of carria- 
 ges, &c. (m) ; or navigating ships (o) ; or for not removing a nuisance 
 from the defendant's lands (jp) ; or against the late rector or vicar, or 
 his executor or administrator, on the custom of the realm, for dilapida- 
 tions (jf) ; or against the occupier of land, for not repairing a fence on the 
 
 (6) 3 T. E. 766; Lutw. 119; 4 T. E. 718; (g) See forms, pos<, vol. ii. 
 
 76, 77; 2 Saund. 414 a, b, c; Steph. 2d ed, (ft) 12 East, 86; ante, 156; and 8 B. & C. 
 370. 114; 6Bmg.235. 
 
 (c) 2 Saund. 118, note 1, 172 a, n. 1; 1 (i) Post, vol. ii. 
 Bar. & Cres. 329; ante, 233, 222. (A') Td. 
 
 (d) In general, vrheu sustainable in such (J.) 11 Price, 200. 
 instances, ante, 131. (m) Ante, 136, 199. 
 
 (e) 12 East, 89 ante 290. (n) Post, vol. ii. 
 (/) Ireland v. Johnson, 1 Bing. N. C. 162; (o) Id. 
 
 Brotherton v. Wood, 6 Moore, 84; 3 Brod. & (p) Id. 
 
 Bing. 64; 9 Price, 408. (g) i* • 
 
 (1) Per Peisbs, J., Goshen, &o. Tump. Co. ^i. Sears, 7 Conn. 98. 
 
»385 
 
 OP THE DECLABATION. 
 
 IV. ITS bank of a river, &c. (r); or for not repairing a way over his land (s) ; or 
 PAET3, &e. j^gg^iusj; ^\^Q proprietor of tithes for not taking them away (<). In *these 
 5thly. The cases it is sufficient to state concisely the defendant's possession of the 
 action." personal or real property, and his consequent obligation or duty, the non- 
 observance of which is complained of (m). 
 
 Declarations for the breach oiduty, to which the defendant was subject 
 in respect of his particular character or situation, are against carriers or 
 innkeepers, for refusing to carry goods or to receive a guest, or for the 
 loss of goods ; or against sheriffs and other public officers for escapes on 
 mesne (x) or final process (jj) ; or for not arresting a debtor when the de- 
 fendant had an opportunity (z) : for false returns, &c. to mesne or final 
 process (a) ; for not taking a replevin bond ; or for taking insufficient 
 pledges (6) ; or for not assigning a bail bond (c). In these cases the par- 
 ticular situation of the defendant from which his duty and liability arise 
 must be concisely stated {d). 
 
 Variance With regard to variances in stating the plaintiff's title to or interest in 
 in stating pergonal or real property in actions ex delicto, it is important to bear in 
 tiff's right mind the general rule that in most actions in that form the plaintiff is not 
 or interest bound to state in his declaration a special title ; it suffices in general that 
 ^^')- he allege a general title or mere possession ; for his title or interest is often 
 
 regarded for the purpose of pleading in the light of inducement only (/). 
 But as the inducement in such case relates to material matter, there Will 
 be a fatal variance, if, instead of relying on the general statement of his 
 title, interest, or right, the plaintiff enter into a more particular and de- 
 tailed statement thereof, and there be a misdescription. Mere surplusage, 
 which can be rejected, will not vitiate (g-) ; but where some statement 
 upon the subject is necessary, and it cannot be rejected in toto, the vari- 
 ance in the detail is a ground of nonsuit, although such minute description 
 were not essential. 
 
 Having full stated this principle already, and illustrated it by several 
 instances (A), it will be useless here to attempt further explanation. We 
 may however add as an additional instance, the observations of Mr. J. 
 Lawrence, in an action for slander of a physician (i), namely, " Even if it 
 be not necessary in general for the party to show that he has regularly ta- 
 ken his degree, in this case it was necessary, because the plaintiff alleged 
 in his declaration that he had duly taken the degree of doctor of physic." 
 £ *386 ] And if the unnecessarily particular detail of title *disclose that the plain- 
 tiff had no claim, the pleading is defective (k). It is also a rule, that if a 
 necessary iuduoeraent of the plaintiff 's right, &c. even in actions for torts, 
 relate to and describe and be founded on a matter of contract, it is neces- 
 
 (r) Id. 
 
 (s) 3T. R. 766; Lutw. 119. 
 
 (t) Post, Tol. ii. 
 
 («) Post, vol. ii.; ante, 186, 290. 
 
 {x) Post, vol. ii. 
 
 (y) Id. 
 
 (z) Id. 
 
 (a) Id. 
 
 (6) Id. 
 
 (c) Id. 
 
 (d) 12 East, 89; ante, 136, 290; 8 B. &C. 
 114; 2M. &K. 35, S. C. 
 
 (c) As to variances in stating the consider- 
 ation and the promise in astumpsii, ante, 800 
 
 and 305. 
 
 (/) Ante, 379, 291; and see th? instances 
 there. 
 
 [g) Ante, 228. 
 
 (ft) Ante, 228 to 232. The same doctrine 
 hold^ as to inducenients in assumpsit ante, 
 291 ; see 3 Stark. Evid. Variatiee, 1542, on 
 the rule that descriptive allegations, though 
 unnecessarily confined, cannot be rejected. 
 
 (i) 8 T. K. 308. ■ 
 
 (fc) Ireland v. Johnson, 1 Bingh.N. C. 162; 
 and ante, 334, note (/); ante, 231; 1 Sauud. 
 846 a note. 
 
BODY OR SUBSTAITOE.— IN ACTIONS FOE TORTS. 386 
 
 sary to be strictly correct in stating such contract, it being matter of de- iv. us 
 scription (/). Thus, even in case against a carrier, if the termini of the ^^"'^'' *"' 
 journey whichl was to be undertaken be mis-stated, the variance will be ^*"y- J^* 
 fatal (m). Here the allegation in the inducement relates to matter of de- aoUon." 
 scription. As a prescription is founded on a supposed grant, and is there- 
 fore entire, for the subject-matter granted must necessarily be descriptive 
 of the grant itself, it follows that partial proof of that which is claimed by 
 the prescription is insufficient, although the proof fail only as to part which 
 is not material in the particular case on the trial (n). Therefore if a par- 
 ty, in stating a prescription, allege a prescriptive right to fish " in four 
 specified places," but it extend to three of them only, the variance is fa- 
 tal, although the tort were not committed in the excepted part (o). So, 
 if he lay a prescriptive right of common generally, and the proof be of a' 
 limite.d, qualified, or conditional right, as " paying Id" (ji) ; or allege it 
 to be for " all commonable cattle," but the proof show that the right re- 
 lates to certain particular cattle, either in number or species (g), there is 
 a fatal mis-description. These rules apply to the statement of a prescrip- 
 tion by either party. But although the prescriptive right be general and 
 absolute for all commonable cattle, yet if the tort relate to a particu- 
 lar description of cattle only, it may be simply alleged that the party had 
 the right for such cattle ; as if the prescription be laid " for two horses," 
 proof that it also extended to " two cows " will not be considered a vari- 
 ance from the allegation ; for it does not disprove it, or destroy the identi- 
 ty of the prescription ; and the party need only show so much as applies to 
 his case, provided he do not introduce an allegation contradicting the pre- 
 scription (r). 
 
 However, the broad and general'distinctions between contracts and tnrts, 
 in this respect, viz. that the former are entire and matter of description, 
 whereas the latter are divisible, and the allegations therein are in general 
 matters of substance, should be here adverted to (s). In torts the plaintiff 
 may prove a part of his charge, if the averment be divisible, and there be 
 enough proved to support his case (5)*(1). Therefore, if in a declaration [ *387 ] 
 for slandering the plaintiff in two trades mentioned in the declaration, 
 there be proof of one trade only, the proof will support the declaration if 
 the words apply to the latter trade (f). In case for disturbance of a right 
 of common, the plainttff stated that he was entitled by reason of his pos- 
 session of a " messuage and land," and it was held sufficient to prove that 
 he was possessed of land only (m) ; but Abbott, C. J., said, that if there 
 
 {I) Dougl. 640; 1 B. & B. 538; 1 Esp. Hep. & R. 291, S. C. 
 302; 12 East, 452; 2 Marsh. 485; ante, 291, (r) Cro. Eliz. 722; Bui. N. P. 29; Hob. 64; 
 
 292, 304; and instances there. Variances Stark. Evid. 1560, Variance ; see also Phil- 
 
 in stating contracts, ante, 304. lips' Evid. Variance and Prescription^ 
 
 (m) 1 M & P. 735; 4 Bingh. 706, S. C. (s) Gilb. Evid. 229; Rep. t. Hardws 121, 2; 
 
 The termini may be described according to Saund. 74 b, 207, n. 24; ante, 313,. 317. 
 
 common parlance. "Zionifan to Blackheath," There is a distinction between allegations of 
 
 will include "Charing Cross," or "Saint matter of suSstoncc and allegations of matter 
 
 George's Fields," to Blackheath;" when, of description ; the latter only need be literal. 
 
 id. ly proved, 9 East, 160; 3 B. & C. 4; 4 D. & 
 
 (ra) 3 Stark. Evid. 1548, Variance. R. 624, S. C. 
 
 (o) 1 Campb. 309; see Noy, 67; Clay. 19; (t) 3 M. & Sel. 369; 1 M. & Sel. 386; post, 
 
 see Cro. Eliz. 593- 392. 
 
 (p) Cro. Eliz. 563; 5 Co. 78 b. (m) 2 B. & Aid. 360. 
 
 (g) Bui. N, P. 69; see 4 B. & C. 161; 6D. 
 
 (1) Vide Cheetham v.Iillotson, 6 Johns. 430. 
 
387 OP THE DECLARATION. 
 
 ^- ™ had been words of connexion, such as " thereunto belonging," or other 
 PAMs, c. ^Qj.^g Qf jj]jQ import, to conaect the messuages and land together as one 
 5thly. The entire tenement, he should have thought the plaintiff was not entitled to re- 
 action. COVer {x). 
 
 gji Injuries ex delicto are either committed with or without/orce(2/), and are 
 
 Statement immediate or consequentialQz) ; they may also arise from malfeasance, mis- 
 of the in- feasance, or nonfeasance (a) . In declarations in trespass, which lies only 
 ■of varian- ^^r wroQgs immediate and committed with force, the injury is stated with- 
 oes in the out any inducement of the defendant's motive or intent, or of the circum- 
 description stances under which the injury was committed (6) . The injury in tres- 
 *'^*° ■ pass should be stated directly and positively, and not by way of recital ; 
 and therefore a declaration charging " for that whereas" or " wherefore" 
 the defendant committed the trespass, is bad on special demurrer (f;)(l); 
 and was formerly holden to be so in arrest of judgment ; but it was afterwards 
 holden that it might be amended at any time befor.e or after judgment by 
 a right bill, the time of filing which the Court would not inquire into (d) 
 (2). In the Common Pleas, when the supposed writ was recited, the mis- 
 take was aided, and was not deemed a ground even of special demurrer(e). 
 In the statement of the trespUsses the words " with force and arms," (vi 
 et armis} should be adopted (/) (3), though the only mode of taking ad- 
 vantage of the omission is by special demurrer (§•) (4) : and in Common 
 [ "SSS ] Pleas, when the words appear in the *recital of the supposed writ, and 
 not in the count part, it is sufficient (/i) ; and in one case Lord Holt said, 
 that these words might be omitted (i) ; and there is an express legisla- 
 tive provision to this effect in regard to indictments (A). The conclusion 
 of the declaration in trespass or ejectment for these forcible injuries,- 
 should also be " contra pacem regis" though they are mere words of form, 
 
 (x) /i. and semiZc, that a ;Jre*crip/ion for a (e) 1 Wils. 99; 2 Id. 203; Andr. 282; 
 
 right of common for a messuage and land, Barnes, 452; Com. Dig. Pleader, C. 86; S. P. 
 
 ■with the appurtenances, would not be sup- ruled in Howard and Ramsbottom, in C. P. 
 
 ported by evidence of a prescriptive right ap- Easter Term, 181,0. Smith, Attorney MS. 
 purtenant to the land only. See /li.; Palmer, (/) Com. Dig. Pleader, 3 M. 7;.l Saund. 
 
 269; 7 Co. 5; Freem. 211; Bui. N. P. 59; 3 81, 82, n. 1, 140, n. 4; Jehk. Cent. 186; per 
 
 Stark. Evid. 1549; Selw. N'. P. Replevin, VIL Parke, B., in Stancliffe v. Hardwioke, 3Dowl. 
 
 6th edit. 1180. 769. 
 
 iy) Jlnle, 125. (g) 4 & 5 Anne, c. 16, s. 1; 4 D. & R. 
 
 (z) Mute, 125, 126. 215. 
 
 (a) Ante, 133. (A) Com. Dig. Pleader, 3 M. 7. 
 
 (A) See the forms and notes, post, vol. ii. (i) Lord Uaym, 985; Vin. Ab. Trespass, 2 
 
 (c) 2Salk. 637; 1 Stra. 621; Andr. 282; a,. 5. 
 
 Com. Di"-. Pleader, C. 86; post, vol. ii. (fe) 37 Heu. 8, c. 8; Crown Giro. Comp.9th 
 
 (d) 2 Stra. 1151, 1162. ed. (1820) ; 4 Hawk. P. C. 55, 56. 
 
 (1) Vide Collier v. Monlton, 7 Johns. Ill; CofBn v. Coffin, 2 Mass. 864; Syme v. Griffin, 4 
 Hen. &Munf. 277. 
 
 (2) In Collier v. Moultbn, 7 Johns. 109, and Coffin v. Coffin, 2 Mass. 358, it was held that 
 the "whereas" migtt after verdict be rejected as surplusage. But in Hord v. Dishman, 2 
 Hen. & Mun. 595; Moore ». Dawney, 3 Hen. & Mun. 127, it was held that quod cum was bad 
 on general demurrer, and was not cured by verdict. Vide 3 Hen. & Mun. 278, note. So, in 
 Domax v. Hord, 3 Hen. & Mun. 271, which was an action on the case for champerty, a declara- 
 tion commencing with quod cum, was held bad on general demurrer. Syme v. Griffin, 4 Hen. 
 & Munf. 277. Vide Marsteller u. M'Clean, 7 Cranoh, 168. 
 
 (3) Vide 2 Reeve's Hist. E. L. 265. 
 
 (4) 14 Serg. & Rawle, 403. The omission of vi el armis is aided by verdict. 4 Dowl. & RyL 
 215; Kerr v. Sharp, 14 Serg. &Rawle, 899. Omission of " vi et armis " in trespass, is not 
 bad, except on special demurrer. Biggins v. Hayward, 5 Vermont, 78. , See P r t. Be- 
 gan, 2 M'Cord, 386; Buntin v. Dachane, 1 Blackf. 56. 
 
BODY OR SUBSTANCE. — IN ACTIONS FOB T0BT8. 388 
 
 and not traversable (Z) (1) ; the omission of that allegation will however ". m 
 be aided, if not specially demurred to (m) ; and in the Common Pleas, if ^^^'^' *"• 
 the words appeared in the recital of the supposed writ, that would suf- ^'^'y- P« 
 fice (w). "T'"^ 
 
 wv^ V'V- action. 
 
 in actions on the case, when the act or nonfeasance complained of was 
 not prima facia actionable, it is usual to state that the act complained of 
 was wrongfully done (o). In general it is necessary to state not only the 
 injury complained of, but also the motive, that it was wrongfully or mali- 
 ciously committed ; as that the defendant well knowing the mischievous 
 propensity of his dog, or having been requested to remove a nuisance erect- 
 ed by another, maliciously or fraudulently contriving and intending, &c. 
 (stating a bad intent corresponding with the wrongful act complained of,) 
 committed ov permitted the tort (p). 
 
 In some actions the scienter being material must be alleged andproved ; 
 as in the declaration for keeping a dog used to bite mankind or sheep (9), 
 or for enticing away a servant or apprentice (r), or for falsely representing 
 a third person fit to be trusted, though in the latter case the word '■^fraud- 
 ulently " might be sufficient (s). In an action on the case for a malicious 
 pFOsecution in an inferior Court having no jurisdiction, a scienter in the de- 
 fendant that the Court had no jurisdiction should it seems bo averred (Jf). 
 But in an action for debauching a wife or servant, it is not necessary to 
 allege or prove that the defendant knew that the female was the wife or ser- 
 vant of the plaintiff (m). And in an action upon an express warranty the 
 * scienter need not be alleged, nor if stated need it be proved (x). In a [ *389 ] 
 declaration against the mere continuer of a nuisance, it is advisable testate 
 that he was requested to remove it (?/). In an action against a sheriff 
 for removing goods from a tenant's premises under a, fieri facias, without 
 paying the landlord's rent in arrear, it is necessary to aver in the de- 
 claration that the defendant had notice of the rent being in arrear ; but 
 the usual averment in stating the injury, that " the defendant well know- 
 ing the premises," did, &c. will cure the want of such an averment after 
 verdict (z). 
 
 We have already seen how far the defendant's motive or intent affects 
 the form of the action ; and that in general when the act occasioning dam- 
 age is in itself unlawful, without any other extrinsic circumstance, the in- 
 tent of the wrong-doer is immaterial in point of law, though it may 
 enhance the damages (a). As observed by Jjord Kenyon, there is a 
 
 (V) Cowp. 174; 2 Bla. Rep. 1058; 2 Salk. that thp act complained of was wrongfully 
 
 640, 641; Com. Dig. Pleader, 3 M. 8; Vin. done, per Parke, B. , in Stanoliffe u. Harkwicke, 
 
 Abr. Contra pacem, and Trespass, Q. a. 5. Dowl. 769. 
 
 Though there is no longer any judgment for (?) .5nfe, 82, 129; see posi, vol. ii. 
 
 the fine (see 1 Salk. 54; 3 Bl. Com. 118, 119, (r) Post, vol. ii. 
 
 398, 399; 2 Sel. Prac. 641; 2 Ld. Raym. (s) Posi, vol. ii. Willes, 584. The repre- 
 
 985; Vin. Ab. Trespass, Q. a. 5), yet Lord sentation must be in writing, 9 Geo. 4. c. 14. 
 
 Holt, in 2 Ld. Baym. 983, said the words Scienter not material in case for driving un- 
 
 must not be omitted, and see the above cases; ruly horses, 2 Lev. 172. 
 
 and yet in some instances cessnnte rations {t) 2 Wils. 302. 
 
 cessat et ipsa lex, as in the case of pledges, 8 («) Post, vol. ii. 
 
 T. B. 157; 2 Hen. Bla. 161. (x) 2 East, 446. 
 
 (m) 4 & 5 Anne, c. 16. {y) Willes, 5S3; post, vol.ii. 
 
 (n) Com. D'g. Pleader, 3 M. 8. {z) 1 Price, 566; post, vol. ii.; ante, 236 
 
 (0) Stancliffe w. Hardwioke, 3 Dowl. 769. 237; 4 Bing. 66, 
 
 {p) In trespass the injury must be described (o) ante, 129. 
 as having been committed vi el armis ; in case 
 
 (1) Vide Gardner v. Thomas, 14 Johns. 134, 
 
^°" OF THE DECLARATION. 
 
 PAKTs™o ^^^^i^^'ti™ between answering civiliter et criminaliter for acts injurious 
 * " to others ; in the latter case the maxim applies, actus non facil reum nisi 
 
 cause' of f**^**^ si7 rea ; but it is otherwise in civil actions, where the intent is 
 
 action. ^^ general immaterial, if the act were injurious to another (6). Lord 
 BUenborough's observations in the case of The King v. Phillips (c), in 
 regard to indictments, elucidate this doctrine ; " If any particular bad in- 
 tention accompanying the act be necessary to constitute it a crime, such 
 intention should be laid in the indictment. In many cases the allegation 
 of intent is a merely formal one ; being no more than the result and infer- 
 ence which the law draws from the-act itself, and which therefore requires 
 no proof but what the act itself supplies. But where the act is indif- 
 ferent in itself, the intent with which it was done then becomes material, 
 and requires, as any substantive matter of fact does, specific allegation 
 and proof." In declarations for slander, the defendant's malicious intent 
 must be alleged, but it may in evidence be presumed (c£). In an action 
 for a malicious arrest, malice is a question of fact for the jury, who are at 
 liberty but not absolutely bound to infer it from the want of probable cause 
 (e). In an action for the consequences of a public nuisance, it is not 
 usual to state any undue intent on the part of the defendant (/) So in 
 an action on the case for pirating the plaintiff's copyright in a book, it is 
 
 L "90 ] sufBcient to state that the 'defendant published and sold the spurious 
 copies, without alleging or proving any intention oh the part of the de- 
 fendant to pirate the copyright or injure the sale of the plaintiff's book 
 (§•) ; and in an action on a statute, as on the Black i Act against the hun- 
 dred, it is sufl&cient tofoUow the words of the act ; andonthat particular 
 statute it was held unnecessary to state that the stack of oats and barn 
 were unlawfully and wilfully and maliciously set on fire (/t). If, however, 
 a malicious or wrongful intent be unnecessarily stated, it need not be 
 proved (i) ; ^nd where there is evidence to prove the allegation, it may 
 be advisable, in aggravation of the damages, to state the defendant's ma- 
 licious intent O'). 
 
 In stating the defendant's intent or motive, -when necessary, the language, 
 as in all other-parts of pleading, should correspond with the real or pro- 
 bable facts of the particular case. In an action for a malicious arrest for 
 a pretended debt, it is usual to state " that the defendant wrongfully and 
 unjustly contriving and intending to imprison, harass, oppress, and injure 
 the plaintiff falsely and maliciously caused the writ to be issued, the state- 
 ment of which writ is essential (/c), and the arrest made, &c." (Z) ; and in 
 a declaration for a malicious prosecution of a criminal charge, injurious as 
 well to the character as to the liberty of the plaintiff, the intent to preju- 
 
 (6) Per Kenyon, C. J., 2 East, 104. The (e) Mitchell i;. Jenkins, 5 Bar. & Adol. 
 
 other Judges differed from liis lordship, bat 588. 
 
 only in the application of this principle to the (/) Post, vol. ii. 
 
 particular case. As to the materiality of a (g) 1 Campb. 94, 93 ; yost, vol. ii. 
 
 bad intent, see the observations in TAe BatYzifs (A) 2 Bla. Rep. 842; Crown Giro. Comp. 
 
 S(C. of Tewkesbury v. Diston, 6 East, 438, and 9th edit. (1820) ; see also 2 Marsh, 362; but 
 
 in the King u. Phillips, iii. 464. A servant see 1 Leach, C. L. 4th edit. 403; and ante, 
 
 ■when liable in trover, &c. though acting bona 872. 
 
 fide for his employer, ante, 154. (i) 2 East, 446. 
 
 (c) 6 East, 473, 474. And see Crown Circ. {j) On the same principle as stated in 4 
 Comp. 9th edit. (1820). Hawk, P. C. 56. 
 
 (d) Moore, 459; Owen, 51, S. C; 4 Burr, (fc) Gadd v. Bennett, 5 Price, 540. 
 2423; 8 Taunt, 246, (/) Post, vol. ii. 
 
BODY OR SUBSTANCE. — IN ACTIONS FOR TORTS. 390 
 
 dice the character is also stated (m). So, in action for verbal or written iv. im 
 slander, the malicious intent to injure the plaintiff in his character, and if ^^^''^' ""• 
 the words relate to his trade, in such trade should be stated (n) ; but ^'"''y- ^''^ 
 where, from the nature of the injury, the defendant could hardly have action, 
 been actuated by express malice towards the plaintiff, as in an action for 
 debauching a daughter or servant, the imputation may be and often is 
 omitted (o). And where the injury is the breach of a contract, express 
 or implied, as for a false warranty, or against a carrier, bailee, &c. the 
 declaration frequently states the deceit or breach of contract, without any 
 allegation of malice (jo). So, in actieus against of&cers, &c. for the non- 
 observance of a public duty, (unless malice be essential, as in action 
 against a returning officer of a borough for refusing a vote at an election, 
 tfec.)(^), the breach of duty and intention to deceive or injure the plaintiff 
 are stated, without alleging any other undue intent, as in an action 
 against the sheriff for an escape, &c. (r). 
 
 When it is material to show an undue motive or intent, it is seldom ne- 
 cessary in a civil action to state it in terms, it is sufficient if it be *sub- [ *391 ] 
 stanlially shown (I). Thus, in an action against a returning officer for 
 refusing a vote at an election, though a bad intent is necessary to the sup- 
 port of the action, yet the word wrongfully intending to deprive the plain- 
 tiff, &c., is sufficiently indicative of a malicious intent (s) (2). So, in 
 the declaration for slander, though it is usual to state that the defendant 
 •maliciously published the scandal, yet the word falsely alone is sufficient 
 (0 (^) '■> ^o i"^ ^''^ action for harboring the plaintiff's wife, though the 
 mere statement of the harboring might be insufficient, because it is lawful 
 in some instances for the wife to leave her husband, yet the words unlaw- 
 fully and unjustly harbored, &c. will sufficiently designate the defendant's 
 conduct to have been illegal (u). 
 
 With regard to the- statement of the tortious act or injury itself, it is fre- statement 
 quently sufficient to describe it generally (x), without setting out the partic- "tseif ;— "^ 
 ulars of the defendant's misconduct. Thus in an action on the case for and of va- 
 inducing the plaintiff's wife to continue absent, it is sufficient to state that riances in 
 the defendant " unlawfully and unjustly persuaded, procured, and enticed '° °^^' 
 the wife to continue absent," by means of which persuasions she did con- 
 tinue absent, <fec. whereby the plaintiff lost her society; without setting 
 forth the means of persuasion used by the defendant Qy). So, in actions 
 for diverting water from a stream, or for disturbance of a right of com- 
 
 t 
 
 (m) Id. 6 East, 445, &o. 
 
 („) Ii],. (0 1 Saund. 242 a, note 2. From the want 
 
 (q\ Jci. of probable cause, malice may be, and most 
 
 (p) Td. usually is, implied, 1 T. R. 545. 
 
 ((?) 1 East, 555, 563, 568, n. a. {u) Willes, 584. 
 
 (r) Post, vol. ii. (*) T5it a general and indefinite statement, 
 
 (s) 1 East, 563, 567; see the observations admitting of almost any proof, is objectiona- 
 
 on the •words "maUtiose," and sineraiionabili ble, ante, 232; 11 Price, 235. 
 
 or probabili, causa," GiVo. Caa. Law and Evid. (y) Willes, 577; IB. & P. 180; Ld. Baym. 
 
 199, &c.; and as to the word/ra«du/enWy, see 452; 8 Leon. 13. 
 
 (1) Marshall c. Bussard, Gilm. 9, and the cases cited in the argument, and by the court. 
 See Savage v. Fuller, Brayt. 223. , . . , ■, . 
 
 (2) So in case for malicious prosecution, stating that the defendant mahciously caused, so. 
 the plaintiff to be indicted. Graham v. Noble, 13 Serg. & Eawle, 233. 
 
 (3) But to sustain the averment of malice, a charge qf felony must be wilfully falie. 
 Pohen V. Morgan, 6 Dowl. & Byl- 8. 
 
 Vol. I. 53 
 
391 • OF THE DECLABATION. 
 
 ly. ITS moil (z), way, &c. it is suflBcient to allege a diversion or disturbance gen- 
 PABTs,: &0i gj-aiiy without showing the particular means adopted (a). Care, however, 
 etWy. The must he observed in an action on the case not to describe the injurious 
 action." ^°*® ^^ trespasses, remedial by actions of trespass, though, if shown to 
 have been committed under color of a warrant or other process prima facie 
 regular, then the acts, otherwise the subject only of an action of trespass, 
 may be properly joined in case (b) ; and an informal count partly in case 
 and partly in trespass may be aided on a motion in arrest of judgment, 
 as in effect an informal count in trover (6). It will in general suffice 
 that the tort is correctly laid in substance though the statement be not 
 literally true, provided there be no material mis-statement. Thus, where 
 the declaration charged that the defendant struck the plaintiff's cow, &c. 
 whereof she died, it was held, after verdict, that there was not a fatal va- 
 [ *392 ] riance, although the proof was that the plaintiff was obliged to' kill *the 
 cow to shorten her misery, in consequence of defendant's violence (c). 
 In an action on the case against a master for the negligence of his servant, 
 it has been decided that the negligence may be stated according to its 
 legal effect, namely, as that of the master, without noticing the servant ; 
 but as the object of pleading is to apprize the opposite party of the facts, 
 it is more correct to state them truly (d). If the plaintiff declare as 
 reversioner for an injury done to his reversionary interest, the declaration 
 must allege it to have been done to the damage of his reversion, or must 
 state an injury of such a permanent nature as to be necessarily injurious to " 
 his reversion (e). 
 
 But if the plaintiff, though needlessly, describe the tort, and the means 
 adopted in affecting it, with minuteness and particularity, and the proof sub- 
 stantially vary from the statement, there will be a fatal variance, which will 
 occasion a nonsuit. Thus, in an action for diverting, &c. a water-course, 
 a count for diverting and turning a stream of water will not be supported 
 by proof of penning back and checking it, whereby the water was made 
 to overflow the plaintiff's meadow (/); and under a count for causing the 
 water to rush impetuously against the plaintiff 's land, he cannot prove that 
 the water was at times prevented from coming thereto (g). But wherein 
 case for diverting a stream from the plaintiff's mills, the declaratisn alleg- 
 ed that the defendant placed and raised a certain dam across the stream, 
 and thereby diverted and turned the water, and prevented it from running 
 along its usual course to the mill, and from supplying the same with water 
 for the necessary working thereof, as the same of right ought and other- 
 wise would have done ; it was hel^ that such allegation was supported by 
 proof that in consequence of the dam the water was prevented from being 
 regularly supplied to the mill, although the stream was not diverted, as 
 the dam was erected above the mill, and the water returned to its regular 
 course long before it reached the mill, and there was no waste of water 
 occasioned by the erection of the dam (Ji). 
 
 (2) Miter in case against the lord of the (d) 6 T. E. 659; 1 East, 110. 
 
 soil for a surcharge, 1 Saund. 346 a; ;)Osi, vol. (e) 1 M. & Sel. 234; in general, ante, 63, 
 
 ii. 670. 140. ^ ' i ' 
 
 (o) 3 Leon. 13; Ld.Kaym. 452; Com. Dig. (/) 6 Price, 1. 
 
 Actions on the Case for disturbance, B.; 1 (g) Jd.; 2 B. & 0. 910; 4 D. & R. 583, S. 
 
 Saund. 346 a; post, vol. ii. 556, 559, 570. C. In a declaration for preventing a stream 
 
 (i), Hensworth J). Fowkes, 4 Bar. & Adol. from, flowing to plaintiff's land, it must be 
 
 449; 1 Nev. & Man. 321.. S. G.;: Smith. ». averred that plaintiff was beneficially entitled 
 
 Goodwin, 4Bi & Adol. 443. to use the water, id. 
 
 (c) 4 D. & E. 202; and j)cr Bayley, J., in (k) 7 Moora, 345. 
 , 4 Bar. & Cress. 256. 
 
BODY OB SUBSTANCE, — FOK TORTS — THE INJUBY. 393 
 
 Wherethe declaration Stated that the defendant " wrongfully placed iv. m 
 and continued a heap of earth, whereby a water-course was obstructed," ^'^«'^«' ^• 
 It was decided that the allegation was not supported by proof that the ^tWy. The 
 iieap was not originally placed- so as to cause the obstruction, but that in "^^-'f °^ 
 time earth from the heap fell, and by changing its position, occasioned 
 t&e injury ; the count should have been for suffering the earth to fall 
 down (%}. 
 
 In an action ex delicto, upon proof of part only of the injury charged, 
 or of one of several injuries laid in the same count, the plaintiff will be 
 entitled to recover pro tanto, provided the part which is proved afford [ *3931 
 per se a sufficient cause" of action, for torts are, generally speaking, divisi- 
 ble (A) ; and this even in a count for words or libel, for though the iury 
 find that part of alleged libel and innuendo do not relate to plaintiff,' but 
 that the rest does, he may recover pro tanto, though the defendant will be 
 entitled to costs of the part negatived (T). The same rule as to proving 
 part of the breach, applies in general in assumpsit, as we have already ob- 
 served and explained by example (w). In case, charging a defendant with 
 " composing and publishing " a libel, he may be found guilty of publishing 
 only (w). And in declarations for injuries to land, trees, goods, &c. a 
 tort to any part thereof may be proved (o). 
 
 The rule that a general averment, including several particulars, may be 
 construed reddendo singula singulis, may be here noticed. Thus, an 
 averment that lands are occupied by "A. and B." may be supported by 
 showing that each occupies a part (p) ; and an allegation that lands are 
 '_' in the parishes A. and B." may be sustained by proof that part is situate 
 in each parish (q). So, where a declaration for a false return to afi.fa. 
 against the goods of A. and B. alleged that A. and B. had goods within 
 the bailiwick, it was held sufficient to prove that either of them had, the 
 averment being severable (r). 
 
 The statement of the time of committing injuries ex delicto is seldom 
 material (1); it may be proved to have been committed either on a day an- 
 terior or subsequent to that stated in the declaration (s). And in an ac- 
 tion on the case for a malicious prosecution, it is not necessary for the plain- 
 tiff to prove the exact day of his acquittal as laid in the declaration, so 
 that it appear to have been before the action brought, and therefore a va- 
 riance between the day laid and the day of trial mentioned in the record, 
 produced to prove the acquittal, is not material, the day not being laid in 
 the declaration as part of the description of such record of acquital ; but 
 if it had been so laid, (Jr if the plairftiff affect to state the test or return of 
 process and misdescribe it, the mistake would be fatal (<). Where the in- 
 
 (i) 5 Taunt. 534. (s) Co. Lit. 283 a; 1 Saund. 24, note 1; 2 
 
 (fr) 2 East, 438; 2 Bla. Kep. 790; 3 T. R. Saund. 295, n. 2. Mis-statement as to the 
 
 645; 5 Taunt. 27; 4 M. & Sel. 349. priority of two facts in regard to time not in 
 
 (I) Prudhommei;. Fraser, 1 Harr. 5. general material; 5T. R. 496; 1 Campb. 139; 
 
 (m) Ante, 352. Dougl. 497; 3 B. & P. 23; when otherwise, 6 
 
 (b) 3 Stark. Evid. 1536, 1541; 2 Camp. Taunt. 464; when time is material, see 5 Taunt. 
 
 507. Proving part of words spoken, 2 East. 2, 15; and when the plaintiff may vary in his 
 
 438; post. replication from the time named in the declar- 
 
 (0) 3 Stark. Evid. 1538, 1539; ante, 377. ation, Ld. Baym. 120; lutw. 1415; 1 Selw. 
 
 (p) 3 Stark. Evid. 1541. 45; post, Departure; variances in stating 
 
 (S) 4 Taunt. 671, 799; see ante, 276, 277. time, 3 Stark. Evid. 1668, Variance. 
 
 (r) 4M. & Sel. 349. (<) 9 East, 167; 11 Id. 608; 2 Campb. 193. 
 
 (1) Still a time of taking must be alleged. Glenn v. Garr&on, 2 Harr< 1. 
 
*394 OF THE DECLARATION. 
 
 IV. 1T3 .jury was capable of being committed on several days, as in trespass to 
 PABTs, &c. i^iad, &c. *it may be described as having been committed on such a day, 
 5tlily. The ^ ^ ^ divers other days and times between that dav and the exhibiting: 
 
 C&US6 of "i"v.« " «/ tf o 
 
 action. of the plaintiff's bill," (1) (or " now the commencement of the suit ") ; 
 and in such case the first day should be laid anterior to the first injurious 
 act, because the plaintiff would not be permitted to give in evidence repeat- 
 ed acts of trespass, unless committed during the space of time laid in his 
 declaration ; though he might recover as to a single trespass committed 
 anterior to the first day (m) (2). Where a particular space of time is as- 
 signed by a continuando for the torts, it seems to become matter of descrip- 
 tion and not a mere formal allegation of time ; but the continuando may be 
 waived, and one trespass even before the first day laid may be proved, for 
 a continuando ought not to place the plaintiff in a worse situation than if one 
 trespass only were laid (y). But where the act complained of was single 
 in its nature, as an assault, it would be demurrable to state that " an 
 sault" was committed " on divers days and times" (x) (3). The defect 
 of a declaration, even in an act of trespass for mesne profits, in not stat- 
 ing any time when the injury was committed, is aided even after a judgment 
 by defaulter'). 
 
 Place The place is only material in local actions (z), or where the precise 
 
 where the situation, or rather description of the land, houses, &c. is particularly stat- 
 committed! ®^! as in trespass and replevin (4). Before the recent pleading rules, Hil. 
 T. 4. W. 4, reg. 8, it was necessary as well in civil as in criminal proceed- 
 ings not only to state the county in the margin as venue, but to repeat the 
 allegation throughout, that every material and traversable fact there 
 occurred ; but that rule orders that place should only be stated in the 
 margin and not repeated in the body, except in trespass quare clausum 
 fregit, when it is essential that the name of the close or the abuttals or 
 other particular description be given, subject to a special demurrer in case 
 of omission (a). We have seen that it is sufficient, at all events in tran- 
 sitory actions, to state that the tort was committed in the county at large, 
 without naming any parish or place therein (&) ; and though an action for ' 
 nuisance to realty be local, yet a particular local description of the nui- 
 sance or lands, &c. affected is unnecessary (c). In trespass to land, and 
 [ ""SOS ] in ejectment, even before the above rule, it was *usual to state the parish 
 or place where the premises were situate {d) ; and in replevin it was con- 
 sidered that the name or abuttals of the close as well as the parish should 
 
 (u) Post, fol. ii. Bui. N. P. 86; Stra. 1095. {x) Id ibid.) 6 East, 395, 391 ; as to lay- 
 Salk. 639; 1 Stark. Rep. 351; Skin. 641; Co. ing that defendant on divers days "assault- 
 hit. 283. But in 5 Price, 614, it was held ed," id. 
 that a period thus limited in stating arrears (y) 13 East, 407. 
 
 of duties in an inquisition, might be rejected (z) As to the venue, Ingeneral, ante, 266. 
 
 as surplusage; and that a difierent space of (a) Aide, 279. 
 
 time during which the uSonies accrued due (6) Ante, 274 to 276. 
 
 might be shown. (c) 2 East, 497; 11 id. 22Q. 
 
 (c) Id. (d) Ante, 274, 275; Co. Lit. 125 b. u. 2.' 
 
 (1) Vide Bumham v. Webster, 6 Mass. 266, 269. 
 
 (2) Vide Phillips' Ev. 134; Sanders ». Palmer, 1 M'Cord, 165. 
 
 (3) Contra Burgess v. Freelove, 2 Bos. k Pul. 425; Phillips' Ev. 134. The words, "then 
 afterwards continuing his assault," were held not to be within the technical meaning of a con- 
 tinuando, and were good at least after -verdict. Benson v. Swift, 2 Mass. 50. 
 
 (4) If a trespass be committed in a township which before action brought is sub-divided, the 
 trespass may be laid in the original township. Renaudet v. Crockery, 1 Caines, 167. 
 
BODY OR SUBSTANCE. — FOR TORTS— THE INJURY. 395 
 
 be stated (e). As a general rule, it is injudicious to give, when not ne- i^- us 
 cessary to do so, a particular local description, as a variance will be ^^^''^' ^'" 
 fatal (/). 5thly. The 
 
 Where the place of doing an act is precisely alleged, if the description 
 
 cause of 
 action. 
 
 be vjholly immaterial, the ground of charge or complaint not being local, 
 the description may perhaps be rejected as surplusage (^) ; as if in tres- 
 pass for taking goods, the declaration were to allege that they were taken 
 " in a house," it would seem to be sufficient to prove that they were taken 
 elsewhere, unless indeed a local trespass as to the house be laid in the 
 same count (A). • 
 
 In real actions, the object being the recovery of the land itself, damages gthiy. The 
 are unimportant and are not to be laid ; but in all personal and mixed statement 
 actions (i) the declaration should claim damages (A:). In personal aad "f*'>« 
 mixed actions there is this difference, that in such actions as sound in {^"""enwal 
 damages, (as is the legal phrase,) as assumpsit, covenant (/), trespass, in aotiona 
 case, &c. damages are the main object of the suit, and are therefore al- f*"^ '<»*■ 
 ways laid high enough to cover the whole demand ; but in actions that 
 do not sound in damages, as debt, detinue, ejectment, &c., damages are 
 not the gist of the action, and it is usual to lay only a nominal sum as 
 damages (m). 
 
 Damages are either general or special. General damages are such as 
 the law implies or presumes to have accrued from the wrong complained 
 of. Special damages are such as really took place and are not implied by 
 law, and are either superadded to general damages arising from an act in- 
 jurious in itself, as where some particular loss arises from the uttering of 
 slanderous words actionable in themselves ; or are such as arise from an 
 act indifferent and not actionable in itself, but injurious only in its con- 
 sequences, as where words become actionable only by reason of spe- 
 cial damage ensuing (w). It- has been held that the special damage must 
 be a legal and natural consequence arising from the tort, and not a mere 
 wrongful act of a third person (o) ; *as that in consequence of the slan- [ *396 ] 
 der certain persons threw the plaintiff into a horse-pond, or broke the 
 windows of his house {p) ; nor a remote consequence, as the loss of a lieu- 
 tenancy by imprisonment (9); and in an action against an insurance compa- 
 ny for loss by fire, the plaintiff cannot recover damages for the loss of 
 customers and trade occurring between the fire and the rebuilding the 
 premises, provided they were restored to a proper state in a reasonable 
 time (r). It dffes not appear necessary to state the formal description of 
 damages in the declaration, because presumptions of law are not in gener- 
 al to be pleaded or averred as facts (s). Therefore, though it is usual in 
 an action on the case for calling the plaintiff " a thief," to state that by rea- 
 
 (e) 2 M. & P. 78; post, toI. ii. ante, 338. 
 
 (/■) See as to variance in this respect, ante (m) Steph. 2cl edit. 474. 
 
 276, 277. (n) See instances, 1 Add. & Ell. 43. 
 
 {g) 8 Stark. Evid. 1571; Variance. Mr. (0) 8 East, 1; 1 B. & P. 289; Sails. 693; 1 
 
 Starkie instances indictments for robbery Mod. Eat. 242; Kelly v. Partington, 6 B. & 
 
 "near a highway," and proof of a robbery in Adol. 645; 7 Bing. 210. 
 
 a house, &c. (p) See preceding note; sed quare. 
 
 (A) See id. and 1 T. E. 475; as to an alle- (9) 1 Campb. 58, 60; 2 Taunt. 314; ante, 
 
 gation that slander was spoken in a partic- 338; 5 Taunt. 584; 2 Chit. K. 198. In case 
 
 ular place, Bui. N. P. 5. for not repairing a fence, ■per quod plaintiffs 
 
 (i) As to these distinctions, ante 97. In horse escaped and was killed by a haystack 
 
 penal actions and scire facias, no damages are falling, it was decided that the damage was 
 
 laid. . See, in general', post. too remote, 2 Y. & J. 391; sed qucere. 
 
 (k) Com. Dig. Pleader, C. 84; 10 Co. Rep. (r) In re Wright and Pole, 1 Adol. & Ell. 
 
 116 b, 117 a, b; Steph. 2d edit. 474. 621 . 
 
 (I) As to damages in actions ex contractu, (s) Arite, 221; and Tidd, 9th edit, 441. 
 
396 OF THE DECLARATION. 
 
 IV. ITS son of the speaking of the -words the plaintiff's character was injured, yet 
 PAETs, &c. ^jjg^j. statemeat appears unnecessary, because it is an intendment of law 
 5thly. The {jj^t ^hg plaintiff was injured by the speaking of such words (<). And the 
 action. observation applies to slander of the plaintiff in his trade ; it being unne- 
 cessary to allege that he was injured therein, because the law infers that 
 such was the case (1). 
 When to be But when the law does not necessarily imply that the plaintiff sustained 
 stated '^ damage by the act complained of, it is essential to the validity of the dec- 
 laration that the resulting damage should be shown with particularity ; as 
 in an action by a master for beating his servant, or by a commoner for 
 surcharging a common ; in which the allegations per quod servitium amisit ; 
 ot: per quodprnjicium communice sues habere nonpotuit are material(M)(2). 
 So in an action for words not actionable in themselves, but becoming so 
 only in respect of particular damage (a;) (3). And whenever the damages 
 sustained have not necessarily accrued from the act complained of, and 
 consequently are not implied by law, then in order to prevent the sur- 
 prise on the defendant which might otherwise ensue on the trial, the plain- 
 tiff must in general state the particular damage which he has sustained, or 
 he will not be permitted to give evidence of it (2/) (4). Thus in an action 
 of trespass and false imprisonment where the plaintiff offered to give in evi- 
 dence that during his imprisonment he was stinted in his allowance of food, 
 he was not permitted to do so, because that fact was not, as it should have 
 [ *397 ] been, stated in his declarations(2;); and in a similar action it was*held that 
 the plaintiff could not give evidence of his health being injured, unless spe- 
 cially stated (a). So in trespass " for taking a horse," nothing can be giv- 
 en in evidence which is not expressed in the declaration (6); and if money 
 was paid over in order to regain possession, such payment should be alleg- 
 ed as special damage (c). So in an action for defamation, whether the 
 words are actionable in themselves or not, yet the plaintiff will not be per- 
 mitted to give evidence of any particular loss or injury, unless it be stated 
 specially in his declaration (d). If an action be brought for words not in 
 themselves actionable, and the plaintiff do not prove the special damage laid 
 in the declaration, he will be nonsuited, because the special damage is in 
 such case the gist of the action ; but where the words are of themselves ac- 
 tionable, the jury must find for the plaintiff, though the special damage be 
 not proved (e), and if the plaintiff allege special damage to have ensued 
 
 (i) Sir W. Jones, 196; 1 Saund. 248b, n.5. (z) Peake, C. N. P. 46. 3d ed. 64. 
 
 (u) 9 Co. 113 a; 1 Saund. 346 a, b, n. 2; (a) Peake, C. N. P. 62; 3d ed. 87. 
 
 2 East, 154; Bui N. P. 89. (A) 1 Sid. 225; Bui. N. P. 89; Vin. Ab. 
 
 (a;) 1 Smud. 243, note 5; 2 Id. 411, n. 4; Evidence, T. b. 6; Holt, 700; Tidd, 9tli ed. 
 
 Sir W.Jones, 196; 1 Stark. E. 172. Loss of 441. 
 the benefits arising from the hospitality of (c) Cowp. 418. 
 friends, &o. 1 Taunt. 39. ■ {d) 1 Saund. 243, note 5. 
 
 {y) See the rule in assumpsit, anie, 838; 8 (c) Id. ibid.; Bui. N. P. 6; Sir W. Jones, 
 
 T. R. 133. 196; 2 B. & P. 284; 7 Bing. 211. 
 
 (1) Hutchinson v. Granger, 1 Vermont, 886. 
 
 (2) Vide Monell v. Golden, 13 Johns. 403. 
 
 (3) Beach D. Ranney, 2 Hill, 309. 
 
 (4) De Forest v. Leete, 16 Johns. 122. See page 128. Where the law presumes a damage 
 to the plaintiif from the facts alleged, no special damage need be alleged; Hutchinson v. Gran- 
 ger, 18 Vermont, 386; Peokham v. Holman, 11 Pick. 484; but otherwise, special damage must 
 be alleged. Peckham v. Holman, 11 Pick. 484. 
 
 To recover special damages the plaintiff must claim them specially and circumstantially. M'Dan- 
 ial V. ferrell, 1 Nott & M'C. 348; Brown v Gibson, 1 Nott & M'C. 326. 
 
 In case for knowingly selling to the plaintiff unwholesome meat, as and for good and whole- 
 some meat, it is not necessary to allege payment for the meat or special damage, ib. 
 
BODY OB SUBSTANCE — FOR TORTS — ^RESULTING DAMAGES. 397 
 
 from -words spoken by the defendant, he cannot recoTer on proof that the i^- its 
 damage resulting from a third person repeating what the defendant had ^■*"''^' *"'■ 
 said (/). Words, though actionable in themselves, and not stated in the ^*'y- '^^^ 
 declaration, may, we have seen, be given in evidence to show the malice of action, 
 the defendant, but the jury ought not to give damages for such words(g-)(l). 
 So in an action at the suit of a reversioner, it must be specially shown that 
 the injury was such as to affect his reversionary interest (Ji) ; and in case 
 for deceit, some resulting damage must be alleged and proved (i). 
 
 Before the 3 & 4 W. 4, c. 42, s. 29, interest was recoverable only in a 
 few cases of contract, but under that act a jury may give damages, in the 
 nature of interest, over and above the value of the goods at the time of the 
 conversion or seizure in all actions of trover or trespass de bonis asporta- 
 tis, and over and above the money recoverable in all actions on policies of 
 assurance. 
 
 In trespass the declaration concludes, " and other wrongs to the plaintiff Alia moi- 
 then did, against the peace, 8fc," and under this allegation of alia enormia """■ 
 damages and matters which naturally arise from the act complained of, or 
 cannot with decency be stated, may be given in evidence in aggravation of 
 damages, though not specified in any other part of the declaration (k). 
 Thus, in trespass for breaking and entering a house, the plaintiff may, in 
 aggravation of damages, *give in evidence the debauching of his daughter, [ *398 ] 
 or the battery of his servants, under the general allegation alia enormia, 
 &c. (ly and yet this matter may be stated specially (m) ; but he cannot 
 under the alia enormia give in evidence the loss of servicP, or any other 
 matter which would of itself hear an action ; for if it would, it should be 
 stated specially. Therefore in trespass quare clausumfregit, the plaintiff 
 would not, under the above general allegation, be permitted to give evidence 
 of the defendant's taking away a horse, &c. (w) ; and in the other cases 
 the evidence is allowed to be given not as a substantative ground of action, 
 but merely to show the violence of the defendant's conduct (o), and give a 
 character to the case. Trespass will lie for breaking and entering the 
 plaintiff's house " under a false and unfounded charge and assertion that 
 the plaintiff had stolen property therein, per quod he was injured in his 
 credit, <fec." and the jury may give dam»ges for the trespass, as it is ag- 
 gravated by and with reference to such false charge (;?). 
 
 The particular damage in respect of which the plaintiff proceeds must 
 be the legal and natural consequence of the injury done, and not an illegal 
 consequence thereof (g). Therefore, in an action for words, it is not suf- 
 ficient special damage to allege or prove a mere wrongful act of a third 
 person induced by the slander ; as that the third person dismissed the 
 plaintiff from his employ before the end of the time for which he was hired ; 
 
 (f) Wards II. Weeks, 7 Bing. 211. Stark. Rep. 98; Tidd, 9th ed. 441; sed vide 
 
 \g) 1 Campb. Ni. Pri. 49; Ward v. Weeks, Peake.Evid. 87, 3d ed.; 2 Phil. Evid. 134. 
 
 7 Bins. 211;' but the defendant may prove (m) Id. _„„ .i „., „„„ • 
 
 such words to be true, 2 Stark. R. 417. {r,) Bui. N. P. 89; Holt, 700; 1 Sid. 225; 
 
 (A) 1 M. & Sel. 284. 2 Salk. 643; 1 Stra. 61. 
 (1)2 Marsh. 21 7. (o) 1 Stark. 98. ^ a, , .,o , 
 
 (k) Bui N. P. 89; Holt, 699, 700; 1 Stark. (p) 2 M. & Sel. 77; see 5 Taunt. 442; 1 
 
 C N P 38- Peake, C. N. P. 46, 62; 3d ed. Marsh, 139, S. C. 
 
 64 87 (,) 8East,3; 2B. & P. 289; Salk.693;l 
 
 (l) 'See preceding note : 6 Mod. 127; 1 Mod. 242; Kelley v. Partington, 6 Bar. & 
 
 (1) See 2 Greenl. Ev. §418, 
 
OF THE DECLARATION. 
 
 IV. ITS or that in consequence of the words spoken, other persons afterwards as- 
 PAETs, &o. sembled and seized the plaintiff and beat him ; because these tortious acts 
 Sthly. The gf others may be compensated in actions brought by the plaintiff against 
 action." them, and the law supposes that in such actions the plaintiff would receive 
 a full indemnity (r). But if the evidence ^ill support the allegation, it 
 may in some cases be stated that the defendant procured the third person 
 to commit the injury, though such person might also be liable to an ac- 
 tion (i). In an action of trespass against a huntsman for riding over lands, 
 he is liable not only for mischief occasioned by himself, but also for a con- 
 course of people following him (<). It seems to be a general rule, that ex- 
 tra cost occasioned by the defendant's tort are not recoverable as damag- 
 es (m). 
 
 Special damage must be stated with particularity, in order that the de- 
 [ *399 ] fendant may be enabled to meet the charge if it be false, and if it *be not 
 so stated, it cannot be given in evidence ; and, therefore, declaration by a 
 victualler for calling his wife " a whore," whereby several customers left 
 his house, without naming any in particular, is too general, and no evidence 
 of particular customers leaving the house will be admissible (x). So in 
 a declaration for slander of title to an estate, whereby the plaintiff lost the 
 sale of it (y) ; or for slandering a single woman, by saying -' she was with 
 child, and had miscarried," in consequence of which she lost several suit- 
 ors, &c. is sufficient (z). But in an action for consequential damage aris- 
 ing from slander, imputing incontinence to the plaintiff, it is sufficient to 
 state " that he was employed to preach to a dissenting congregation at a 
 certain licensed chapel, situate, &c. and that he derived considerable 
 profit for his preaching there, and that by reason of the scandal, persows 
 frequenting the chapel had refused to permit him to preach there, and 
 had discontinued giving him profits which they usually had, and otherwise 
 would have given," without saying who those persons were, or by what 
 authority they excluded him (a). In this case a general allegation is suffi- 
 cient, in consequence of a minute statement being inconvenient, and tend- 
 ing to prolixity (6). So where a declaration in assumpsit for not permit- 
 ting the plaintiff to take possession of the premises which the defendant 
 had let to him, stated that " thereby the plaintiff sustained loss V it was 
 held that the plaintiff might pro;pe a particular loss in respect of his wife 
 being a milliner, and having lost a profitable part of the year (c). In sta- 
 ting the damages, care must be taken that no part of it appear to have ac- 
 crued after the commencement of the action, though if it be laid under a 
 videlicet it will be aided by a verdict Qd). 
 
 Adol. 645; ante, 395, note (A). Kol. Ab. 58. 
 
 (r) 8 East 1, 3; 2 B. & P. 289; ante, 895 {y) Sir W. Jonea, 196. 
 
 (6). Sed quare. (z) 8 T. K. 182; 1 Sid. 396; 1 Vent. 4, S. 
 
 (s) Forteso. 211 ; 1 Mod. 215. C. Cro. Jao. 499. 
 
 (0 1 Stark. 351. (a) 8 T. R. 180; 8 M. & Sel. 78. 
 
 (v.) 1 Campb. 151, 152; 4 Taunt. 7; 4 (A) jJnie, 269. 
 
 Bing. 160; but see 1 Stark. 306. What re- (c) 11 Price, 19. 
 
 coverable in action for mense profits, ante, (rf) 2 Saund. 169, 171 b; Vin. Ab. Dama- 
 
 196. " ges, Q. R. 
 
 {x) Bui. Ni. Pri. 7; Saund. 243 o. n. 5; 1 
 
FOR TORTS. — FOR SLANDER IN PARTICULAR. 399 
 
 IV. iia 
 THE REQUISITES OP DECLARATIONS FOR WRITTEN OR ^^™' *"• 
 VERBAL SLANDER IN PARTICULAR. caule"of *" 
 
 action. 
 In the Second Volume are given a great variety of forms of declarations the pab- 
 for libels and slander, and to those forms there are appended explanatory TionLAB 
 notes (e) ; technical objections to declarations for causes of action of this qf^^'olI-^ 
 description, -whether for written or verbal slander, have certainly been ad- eahons 
 mitted to an extent injnrious to the mode of administering justice (/). ™»I'Ibel3, 
 The principal rules which regulate the framing of a declaration for this in- ^ J^_ 
 jury, may be conveniently considered under the following heads, namely, dee. 
 1st, The twdMcemewi or prefatory *statement of m<ro6?«cto/-7/ matter ; 2dly, f *400 1 
 The colloquium, or statement that the libellous or slanderous imputations 
 have reference to the plaintiff, and sometimes also to the antecedent in- 
 ducement or introductory matter ; 3dly, The statement of the scandal it- 
 self, whether written or verbal, and the publication thereof; 4thly, The 
 innuendoes ; and, 5thly, The consequent damage. 
 
 1st, Inducement or prefatory or introductory statement. An inference Introduo- 
 or presumption of law need not in general be stated in pleading (§•) ; and /^Su*e- 
 because the law presumes the innocence of a crime or other misconduct ment. 
 the plaintiff need not in his declaration aver his innocence of the charge or 
 attack upon his character (Ji). It is, however, usual to state byway of 
 introduction, the plaintiff's innocence of the imputation ; and the defend- 
 ant could not, even before the Reg. GTen. Hil. T. 4 W. 4, under the gen- 
 eral issue, assert the plaintiffs guilt, although the declaration contained 
 such introduction (i), and the same rule now continues even in stronger 
 force. 
 
 Where the libel or slander is prima facie or per se actionable, a declarar Libels and 
 tion stating the defendant's malicious intent and the defamatory matter, s'*"?*"^ in 
 showing that it refers to the plaintiff, is sufficient without any prefatory P*"^''*"'**- 
 inducement of the circumstances under which the words, &c. were spoken, 
 &c. (A;) and if unnecessarily an inducement be stated, it is not material 
 to prove it (/) (1). But if the libel or words do not natwrally and per 
 se convey the meaning the plaintiff would wish to assign to them, or are 
 ambiguous and equivocal, and require explanation by reference to some 
 extrinsic .matter to show that they are actionable, it must be expressly 
 shown that such matter existed, and that the slander related thereto(»») (2). 
 
 (e) Post, vol. ii. See Stark, on Slander, there be a preferable statement of general 
 
 &o. 2d edit. Index, Declaration ; and Phillips good character, the defendant cannot trav- 
 
 and Starkie on Evid.; also, Selw. N. P. Libel erse it by his plea, Styles, 118; 11 Price, 235. 
 and Slander. (k) Com. Dig. Action for Defamation, Gr. 
 
 (/•) MS. per Tenterden, C. J. and Best, C. 9; 3 Y. & J. 219; 6 B. & C. 154; 9 D. & R. 
 
 J., on error from the Exchequer, in Adams 197, S. C; same case in error, in 1 M. & P. 
 
 V. Meredew, 3 You. & Jer. 219; overruling 402, and 4 Bingh. 489. See 2 M. & P. 32; 6 
 
 the judgment, 2 You & Jer. 417; see analysis Bingh. 17, S. C; and next note. 
 HarrisoQ'a Index, 927. (Z) Cox o. Thomason, 2 Cr. & J. 361. 
 
 Ig) Ante, 2F)3. (m) 8East,431; 9 /d. 93; 4M.&.S.164; 
 
 (A) Id.; 1 Stark, on Slander, 2d ed. 357. 13 East, 654; 5 B. & A. 615; 1 D. & K. 230. 
 
 (i) See post, as to Pleas in Case. And if S. C, 
 
 (1) Hills V. Miles, 9 N. Hamp. 9; Loomis v. Swick, 3 Wendell, 205; Nestle v. Van Slyok, 2 
 Hill, 282; Croswell v. Weed, 25 Wendell, 621. 
 
 (2) See Bless v. Toby, 2 Pick. 320; Case «. Buckley, 15 Wendell, 327; Linville v. Early- 
 wine, 4 Blackf. 470; Brittian v. Allen, 3 Devereus, 167; Watts v. Greeuleaf, 2 Devereux, 115; 
 Brown «.. Brown, 2 Shepley, 317; Harris v. Barley, 8 N. Hamp. 256, 
 
 Vol. I. 54 
 
400 OP THE DECLARATION. 
 
 IV. iTa Thus, if the imputation be that the plaintiff was ^^ forsworn" this not be- 
 PAKTs, &c. -jjg Qf itself actionable, because it does not necessarily impute the offence 
 5thly. The q^ perjury (w), it must be specifically alleged, by way of inducement, that 
 action." there had been a suit or other judicial proceeding, in which the plaintiff 
 was a witness and gave evidence, and that the defendant, when speaking 
 the words, referred to such matter in using the term " forsworn," (o) (1) 
 and intended to impute that the plaintiff had been guilty of the crime of 
 perjury. So if the slander were, " you have robbed- me of one shilling 
 tan money," as the word '■^robbed" does not necessarily impute a felony, 
 an innuendo of that intent, without any inducement or prefatory allegation 
 [ *401 J *of the defendants having used the words in a felonious sense, will be de- 
 fective (ji) (2). Where what is complained of in the declaration as a li- 
 bel, does not upon the face of it apply to the plaintiff, and impute a libel, 
 there must be an inducement stating such facts as will support such an in- 
 nuendo, and show the libellous application of the statement to the plain- 
 tiff((/). 
 
 Upon the same ground in declarations upon libels and words which are 
 only actionable in regard to their having affected the plaintiff in his pro- 
 fession, trade, or business (r), there must be a distinct allegation that the 
 plaintiff was, at the time of the scandal (s), in such profession, or exercis- 
 ed such calling, &c. ; otherwise the record will be substantially defec- 
 tive if). In these cases care should be taken to avoid unnecessary minute- 
 ness in showing the plaintiff's profession ; a simple statement that he ex- 
 ercised it, without alleging that he was " qualified," or had " taken a de- 
 gree," is all that is necessary or judicious (u). "Where an averment of 
 extrinsic matter is material, the allegation tljat the slander applies to such 
 extrinsic matter is matter of description, and must be in general proved as 
 laid, though unnecessarily minute ; thus, in a declaration for slander of an 
 
 (n) 6 T. B. 691 ; 8 East, 427; 9 Id. 93. long time carried on, &o. it will suffice, 2 Roll. 
 
 (o) See^josi, toI. ii Bep. 84. 1 Vin. Ab. 538; Alleyne, 63; Yelv. 
 
 (p) Day 1). Robinson, 1 Add. & Ell. 555. 159; see Cro. Car. 282; \ Stark. Slander, 402 
 
 (9) 1 Y. & J. 480. to 404. 
 
 (r) It need not appear to be a trade in (() Com. Dig. Action for Defamation, G. S 
 
 wbiob the plaintiff might become a bankrupt, 2 Saund. 307, a, n. 1; 1 Saund. ,243, n. 3 
 
 see 5 B. & C. 160. post, vol. ii.; 1 Stark, on Slander, 400, 2d ed. 
 
 (s) It need not, it seems be expressly aver. 3 B. & C. 136; 4 D. & R. 670, S. C. 
 red, that "at the time of the publishing," &o. (u) 8 T. B. 303,131; 1 New Rep. 196; 2 
 
 plaintiff carried on, &o. If it be alleged that Bulst. 230 ;- 11 Price, 235. See, ante, 291, 292; 
 
 he was and is an attorney, &o. and hath for a and post, 402. 
 
 fl) So, to say that the plaintiff has sworn false or taken a false oath, is not actionable; 
 Vaughan v. Havens, 8 Johns. 109; without a colloquium of its being in a cause pending in a 
 court of competent jurisdiction, and on a point material to the issue. Niven v. Munn, 13 Johns, 
 48; Hopkins v. Beedle, 1 Gaines, 847; Ward v. Clark, 2 .Johns. 10; M'Claughey v. Wetmore|6. 
 Johns. 82; Chapman v. Smith, 13 Johns. 68; Crookshank « Gray, 20 Johns. 344. Harvey v. 
 Boies, 1 Penns. 12; Palmer v. Hunter, 8. Missouri, 512; Sanderson v. Hubbard, 14 Vermont 
 462; Wood v. Scott, 13 ib. 42. But under the new practice act of Massaohusettts, (St. 1852, c. 
 812,) a declaration in slander is sufficient, which alleges that the defendant publicly, falsely and 
 maliciously charged the plaintiff with the crime of perjury, by words spoken of the plaintiff, 
 substantially as follows : " He has been to New Bedford, and sworn to a pack of damned lies," 
 and that the plaintiff, at a certain term of court holden at New Bedford, was summoned and at- 
 tended as a witness in the case of a certain libel for divorce, and did before a certain judge of 
 said court testify as a witness under oath; and that it is to this subject that the defendant's 
 malicious declarations refer. Gardner v. Dyer, 6 Gray, 22. 
 
 (2) Emery v. Miller, 1 Denio, 208. To utter words imputing a crime is actionable, although 
 the crime could not be committed by the party charged with it, unless this fact is known or dis- 
 closed at the time to the hearer; as to charge a tenant in common of a chattel with stealing 
 it, there being no explanation that he was a tenant in commom. Carter v. Andrews, 16 
 Pick, 1. 
 
cause of 
 action. 
 
 toil TORTS.-^FOB SLANDER IN PARTICULAE. 401 
 
 attorney, if, after alleging that he was an attorney, it be averred that he ly- n» 
 had conducted a particular suit, and then state that the slander was pub- ^^^'^' *"• 
 lished of and concerning his conduct in ihat suit, it is essential to prove ^'•'^y- '^^^ 
 the existence of the suit, and that the scandal had reference to the particu- ""'" "^ 
 lar occasion stated (.■r). Since the general pleading rules, Hil. T. 4 W. 
 4, unless the inducement or prefatory matter be particularly traversed or 
 denied, it will in effect be admitted, and certainly need not be proved by 
 the plaintiff upon a mere plea of not guilty («/). 
 
 But where the slanderous matter is actionable of itself, and independent- 
 ly of the plaintiff's profession or trade, it will not be fatal to introduce an 
 averment of the plaintiff's profession, &c. and to state that the matter was 
 published of and concerning him, "and of and concerning- him in his pro- 
 fession," &c. ; for the averment is divisible (s). And on the same ground, 
 if the matter be actionable as relates to one of two of the plaintiff's trades 
 mentioned in the inducement, *the declaration is sufiScient, although one [ *402 ] 
 trade only be proved (a). Where in a declaration for a libel it was al- 
 leged that the plaintiff 's carriage and that of E. P. were in a highway, 
 and that' they had come in contact without any furious driving by the 
 plaintiff, and that E. P. was injured, &c. and that the libel was published 
 of and concerning the plaintiff, " and of and concerning the said acci- 
 dent ;" the Court held the averments as to the accident were divisible, and 
 did not form entire matter of description thereof, so that it became imma- 
 terial that the jury foutid that the accident was occasioned by the plaintiff 's 
 furious driving, (there not being a sufScient plea of justification to protect 
 the defendant as to the whole libel) (6). A declaration alleged that the 
 plaintiff was vestry clerk of the parish of M., and that whilst he was ves- 
 try clerk certain prosecutions were carried on against B. for certain mis- 
 demeanors, and that in furtherance of such proceedings, and to bring the 
 same to a successful issue, certain sums of money belonging to the parish- 
 ioners were applied in discharge of the expenses ; and that the defend- 
 ant, to cause it to be suspected that the plaintiff had fraudulently applied 
 money belonging to the parishioners, falsely and maliciously published of 
 and concerning the plaintiff, and of and concerning his conduct in his of- 
 fice of vestry clerk, and of and concerning the matters aforesaid, a certain 
 libel, stating the libellous parts ; and it appeared upon the trial, upon the 
 production of the libel, that the imputation was that the plaintiff had ap- 
 plied the parish money in payment of the expenses of the prosecution af- 
 ter it terminated, it was held that the variance was unimportant ; for it 
 was immaterial to the character of the libel whether the money were so ap- 
 plied before, or after the termination of the prosecution (c). The princi- 
 ple seems to be in declaring upon a libel, that where there are several 
 matters alleged as inducement, each" as bearing upon the libel and jointly 
 constituting it, the Court will consider, in constructing the subsequent aver- 
 ment, that the libel was published " of and concerning the matters afore- 
 said," the degree in which each matter bears upon the libel, and is essen- 
 tial to it. If the matter referred to by the averment be material, and affect 
 
 (i)See5Esp. Rep. 839;1 Chit. Rep. 603; Stark. Rep. 559. 
 
 3 B. & C. 124; 4 D. & R. 680, S. C; 4 Esp. (a) Figgins v. Cogswell, cited and approved 
 
 Rep. 437; and other cases, 1 Stark. Slander, by Tindal, C. J., in Chalmers v. Shackle, 6 
 
 406, 2d ed. Car. & P. 477; ,3 M. & Sel. 369; ante, 887. 
 
 (y) Duke v. Jostling, 8 Dowl. 618; Chal- (6) 2 B. & Aid. 685. See 1 M. & Sel. 287. 
 
 mers v. Shackle, 6 Car. & P. 475. (c1 May «. Brown. 3 B. & C. 113; 4 D. & 
 
 (2) 3 B. & C. 138, note (i) ; 5 T. R. 436 ; 2 R. 670, S. C. 
 
402 OF THE DBCLABATION. 
 
 IV. ITS . the charge in such a manner that the omission of it ■would alter the charac- 
 PABTs, c. ^g^ ^|. ^Y^Q libel, either in the degree in which it is charged to be injurious, 
 5thly. The qj. Jjj ^jjg estimate of damages, the court will hold that it must be strictly 
 action. proved as it is charged, and the failure of proof, or the disproof of it, will 
 be a fatal variance. This was the case of Rex. v. Home (ti), in which it 
 was held necessary to prove all the matters to which reference was made 
 by the averment " of and concerning the matters aforesaid ;" because, first, 
 [ *403 J the libel was alleged to be of and *concerning these matters and all the 
 matters jointly : and each in its relative importance constituted the li- 
 bel (e). But where the matters referred to consist of several particulars, 
 some of which are material and others not, the Court will distinguish be- 
 tween such as are material and such as are not (/) ; and if any one par- 
 ticular be disproved to which the libel is alleged to relate, if the charge 
 would remain entire and libellous without such proof, the court will not 
 consider it to be a variance (1); that was the case of May\. Brown (g-), 
 which establishes this position, that the words " of and concerning," in- 
 corporate and render necessary to prove such antecedent matter only 
 as make up the entire charge, and are essential to the character of the 
 libel. 
 
 Where the libellous latter can be collected /rom t/ie words themselves, 
 there need be no averment as to circumstances, to the supposed existence 
 of which the words referred ; as the gist of the action appears on the face 
 of the libel, or words, there can be no reason that the plaintiff should re- 
 sort to any statement of the facts to which the defendant may have allud- 
 ed. If these facts be true to the extent he represented, it is for the de- 
 fendant to plead their truth. Thus, if the declaration he, " he perjured 
 himself," or " he perjured himself in the action," it is unnecssary to 
 show in the declaration that there was an action, &c. (A). The statement 
 in the libel or slander itself of a particular fact, dispenses with the proof 
 thereof on the part of the plaintiff (i), 
 
 2. The col- 2dly. The declaration must show by a colloquium, or otherwise, that 
 
 loquium of ^jie words were spoken, or the libel was composed and published " of and 
 
 cerningihe Concerning the plaintiff." And where an inducement of intrinsic matter 
 
 plaintiff, is necessary, it must not only be shown that the imputation related to the 
 
 ^'' plaintiff's character, but it must also be charged that it had reference to 
 
 such extrinsic matter ; as (in regard to the instances just put) that it was 
 
 published " of and concerning the plaintiff's said evidence in the said suit, 
 
 &c." or " of and concerning him in his said profession, &c." (A) (2). 
 
 {d) Cowp. 172. (A) Cro. Car. 337; 8 Mod. 24; 1 Stark. 
 
 (c) See also 1 Chit. Rep. 603; 2 Stark. 510; Slander, 2d ed. 392, 397, 85. 
 
 4 B. & Aid. 814. (i) 11 Price, 235. 
 
 (/) 2 Orom. & Jerv. 361. (/c) 1 Saund. 242 b, n. 3; 1 Stark. Slander, 
 
 (g) 3 B. & C. 113; 4 D. & R. 670, S. C. ; 2d ed. 383. 
 ante, 402. 
 
 (1) " The general inducement of good character or innocence of the particular charge is un- 
 necessary, because the law presumes innocence of a crime till the contrary be established. 1 B. 
 & A. 463;" 4 Lond. Ed. 342, See Soleman v. Southwicke, 9 Johns. 48, 49. 
 
 '(2) VideLinsey v. Smith, 7 Johns. 359; Gidney v. Blake, 11 Johns, 54; Thomas v. Cros- 
 well, 7 ib. 271; Milligan v. Thorn, 6 Wend. 418; Da^is v. DaTis, 1 Nott & M'C. 290; Nestle 
 V. Van Slyck, 2 Hill, 282; Sayre v. Jewett, 12 Wendell, 185; Ryan v. Madden, 12 Vermont, 
 51;. Brown v. Brown, 2 Shepley, 317; Tenney v. Clement, 10 N. Hamp. 52. If it appears 
 with reasonable certainty on looking at the whole count, that the words were spoken of the 
 plaintiff, it is enough after verdict. Nestle v. Van Slyok, 2 Hill, 282. See Titus v. FoUett, 2 
 Hill, 318. 
 
FOB TORTS. — FOE SLANDER IN PARTICULAR. 403 
 
 Where a declaration stated that the defendant, contriving, &c. publish- it. its 
 ed a libel containing the false and scandalous matter following, without '''^"^'' *"' 
 alleging that that matter was " of and concerning the plaintiff," and then s*'>'y- Jli« 
 set out the libel,_ which on the face of it did not manifestly appear to re- action, 
 late to the plaintiff, and there was no innuendo to connect it with the plain- 
 tiff, it was held, upon a writ of error, that the count was bad (J) (1). 
 
 *Where the actionable words were spoken to a plaintiff, " you are, &c." [ *404 ] 
 it appears to be sufficient to lay a colloquium with him, without an ex- 
 press averment that the words were spoken " of and concerning him ;" for 
 it cannot but be intended that the words were spoken to him with whom 
 the conversation is alleged to have been had (m). But where actionable 
 words are spoken in the third person, as " he is a thief," though a colloqui- 
 um of the plaintiff be laid, it is necessary to aver that the words were spo- 
 ken " concerning the plaintiff' " (n). And it is not, it seems, sufficient, 
 in such case, to connect the words with the plaintiff by means of an innu- 
 endo (o). 
 
 But where a colloquium is laid, and there is an innuendo of th'e plain- 
 tiff, it seems that the want of a direct averment, that the words were spo- 
 ken " of and concerning the plaintiff," must be pointed out by special de- 
 murrer, and that it will be intended after verdict, or upon general demur- 
 rer, that the words were spoken of the plaintiff ; but where no colloquium 
 concerning the plaintiff is laid, the omission of such an averment is fatal 
 to the declaration (jo) (2). 
 
 The neglect to aver that the libellous or slanderous matter was publish- 
 ed " of and concerning the plaintiff," is not cured by an allegation that 
 the defendant published the matter with intent to injure the plaintiff, and 
 impute to him the crime after mentioned (jj) . 
 
 3dly. Great care must be taken in setting out the particular libellous 3. The 
 matters or words complained of (3). The libel itself, or slanderous words, »'".«''«»■. 
 must be set out in hmc verba; and the declaration must profess so to set verbal" and 
 forth the matter ; and an averment that the libellous or slanderous mat- publica- 
 ter was " to the effect following ;" (r) or " in substance as follows," (s) '''"f °°T^- 
 (4) setting out the libel or words, would be bad in arrest of judgment al- ^ ^^"^^ 
 though the words themselves be set out. It is not sufficient to declare 
 
 (I) Clement v. Fisher, 7 B. & C. 459; 1 M. tiff. Id.; see ante, 403; and post, 406. 
 
 & R. 281, S. C. 4 Bing. 162. (r) 3 Salk. 417; 11 Mod. 78, 849; 5 Vin. 
 
 (m) Rol. Abr. 85, pi. 8; ISaund. 242 a, u. Ab. Libel, E.; 3 Mod. 72; 2 Show. 486; 3 M. 
 
 3. , & Sel. 115; 1 Marsh. 522; 6 Taunt. 167, 
 
 (n) Rol. Abr. 85, pi. 30; 1 Sid. 62; 1 S. C. To the '• tenor ," ov " tenor and eff'-.ci," 
 
 Com. Dig. Action upon the Case for Defama- setting out the scandal in hcec verba, seems to 
 
 tion, G. 7. be good. Id.; 1 Stark. Slander, 2d ed. 365 b. 
 
 (0) Cro. Jao. 126; posj, 406, 407; see 7 B. " Crimen felonies impomit," good after ver- 
 & C. 459; 1 M. & R. 281, S. C. diet, because it can be supported only by proof 
 
 (p) Kol. Rep. 244; Skutt v. Hawkins, 1 oi & charge h&iore a. magistrate, not by proof 
 
 Saund. 242 b, n. 3. of words in conversation, 2 B. & C. 283; 3 D. 
 
 (q) 4 M. & Sel. 464; 1 Stark. Slander, 2d & R. 519; S. C. 
 • ed. 416. Even, it seems, although there be (s) 3 B. & Aid. 553; 3 M. & Sel. 110; 4 
 
 an innuendo applying the matter to the plain- Bar. & Cres. 473; 6 D. & R. 528, S. C- 
 
 (1) See Sayer v. Jewell, 12 Wend. 135. 
 
 (2) Vide Milligan v. Thorn, 6 Wend. 413. ' 
 
 (3) The degree of certainty with which a libel should be set forth in a declaration, depends on 
 the subject matter; and where the ridicule consists mainly in postures and movements, the use 
 of language somewhat general is unavoidable. Ellis v. Kimball, 16 Pick. 182. 
 
 (4) Contra Kennedy v. Lowry, 1 Binn. 393. 
 
*405 OP THE DBCLABATION. 
 
 IV. ITS generally that the defendant published a libel concerning the plaintiff in 
 PAEI3, &o. jjjg trade, " purporting that his beer was of a bad quality, and sold in de- 
 athly. The ficient measure ;" or that the defendant "charged and arrested, and accused 
 action."^ the plaintiff, a tradesman of being insolvent " (_t). The libel or slander 
 itself ought to be expressly *stated (m) (1). Where a libellous para- 
 graph, as proved, contains two references by which it appeared to be in 
 fact the language of a third person, speaking of the plaintiff 's conduct, 
 and the declaration in setting it out had omitted those references, it was 
 held that these omissions altered the sense of the remainder, and that the 
 variance was fatal (x). And when a declaration alleges that the defend- 
 ant spoke certain words, it must be taken to mean that the defendant him- 
 self used them as his own words, and if he repeated them as the words of 
 another it is a variance (p). The slanderous words Should be stated as 
 they were uttered (z) (2) ; and a proof of words spoken in the third 
 person, will not support a count for words spoken in the second, and 
 vice versa (a) (3) ; nor will words spoken by way of interrogation 
 support a charge of words spoken affirmatively (6). So if words are spo- 
 ken ironically (c), or the slander is to be collected from a question and 
 answer, not from the latter only (d), there must be an express averment 
 accordingly ; in the first case, stating the words, and averring they were 
 ironically spoken ; in the second, showing the question and answer, &c. 
 If the words are so laid as to import that they were spoken concerning a 
 thing then present, and the words proved concerned and imported that 
 they related to a thing not then present, the variance is fatal (e). Howev- 
 er, the addition or omission of a word in setting out a libel or slander, will 
 not prejudice unless it alters the sense (/) ; and the plaintiff need not 
 prove all the words laid, if they do not constitute one entire charge, and 
 the non proof would not alter its meaning ; though he must prove such of 
 
 (0 3 M. & Sel. 110. (6) 8 T. R. 150; Teates v. Reed, 4 Blaokf. 
 
 (u) 6 Taunt. 169. 463. 
 
 {x) 8 Bi & Aid. 615; 13 East, 554. Asto (c) 11 Mod. 86. 
 
 setting out divided sentences, as if they fol- (rf) 4 B. & C. 247; 6 D. & K. 296 S. C. 
 
 lowed continuously, 1 StaA. Slander, 2d ed. (e) 2 B. & Aid. 756. 
 
 380. (/•) Bal. N. P. 6; 2 M, & Sel. 502; Rep. 
 
 (y) 10 Bar. & Ores. 274; 13 East, 554. temp. Hardw. 305, 806; 1 Campb. 353; 13 
 
 (z) 3 M. & Sel. liO; 1 M. & Sel. 287. East, 554; see 1 Staris. Slander, 2d ed. 369 to 
 
 (a) 4 T. R. 217; Bui. N. P. 5; post, vol. ii. 383. 
 
 (1) In an action for alibel in a review, His sufficient to set out the contents of an index, (re- 
 ferring to an article in the body of the review,) which is of itself a libel; and no reference need 
 be made to the article itself, if the index contain per se, prima /actc libellous matter. Buck- 
 ingham i;. Murray, 2 Carr. & Payne, 46. 
 
 (2) And therefore a count in slander, stating merely that the defendant charged the plaintiff 
 ■with the crime of forgery, is bad. Yuudt v. Yundt, 12 Serg. & Rawle, 427; Blessing v. Davis, 
 24 Wendell, 100. But in Massachusetts, in an action for slander a count setting forth general- 
 ly, that the defendant charged the plaintiff with a crime, (naming it,) is good. Allen v. Per- 
 kins, 17 Pick. 369; Whiting v. Smith, 13 Pick. 364; Pond v. Hartwell, 17 Pick. 269; Nye v. 
 Otis, 8 Mass. 122; Stone v. Clark, 21 Pick. 61. 
 
 And under such a declaration, the plaintiff may prove that the words spoken, although not 
 actionable in themselves, were rendered so by reason of certain extrinsic facts, by their refer- 
 ring to those facts and by the manner in which they were used, although the declaration con- 
 tains no averment that they were spoken with reference to any fact whatever. Allen v. Per- 
 kins, 17 Pick. 869; Pond v Hartwell, 17 Pick. 269. 
 
 But where the plaintiff, in an action of slander, counts generally, alleging, that the defendant 
 has charged him with a certain offence, the court has authority to order the plaintiff to file 
 a specification or a bill of particulars of the ground of his action. Clark v. Munsell, 6 Hetoalf, 
 873. 
 
 (3) Vide Miller v. Miller, 8 Johns. 75; Cook v. Weatherby, 5 Smedes & Marsh. 338. Con- 
 tra, Tracy v. Harkins, 1 Binn. 895. But see M'Connell v. M'Coy, 7 Serg. & Rawle, 228, over- 
 ruling Tracy v. Harkins. 
 
FOR TORTS. — FOR SLANDER IN PARTICULAR. 405 
 
 them as -will be sufficient to sustain his action, and it will not suffice to i"^- im 
 prove equivalent expressions (§•) (1). Where the words omitted to be ^^''^' *"• 
 proved do not qualify or affect those proved, the omission is immaterial, ^^'y- "^^^ 
 
 cause of 
 action. 
 
 as where the words were — " Ware hawk, you must take care of yourself 
 —mind what you are about ;" the variance was immaterial where the plain- 
 tiff failed to prove the words " mind what you are about " (A). Where 
 some of the words were not actionable, yet, if spoken at the same time as 
 the actionable words, they may all be stated in one count ; but if words 
 not actionable be stated by themselves in a distinct count, and entire 
 damages be given, judgment will be arrested (i) (2) ; and words *not ac- [" *406 1 
 tionable may be given in evidence in aggravation of damages, though not 
 stated in the declaration (A) (3) ; and it has even been decided that 
 words actionable of themselves, though not stated in the pleadings, may 
 be proved in order to show quo animo the words declared upon were 
 stated (/). 
 
 The declaration must show a publication of the libel or slander; but Theun- 
 any words that denote a publication are sufficient (m). After verdict, an '™/!'' 
 allegation that the defendant "-printed and caused to be printed a libel in ^ion!"'' 
 a newspaper," was held to be sufficient (w). And an averment that 
 words were spoken " in the presence of divers persons," although not sta- 
 ting that they heard or understood them, is sustainable (o) ; but it is not 
 correct merely to aver that the words were spoken, omitting the words 
 " and published" (p). 
 
 In an action for a libel in a foreign language, the original must be set 
 out (5) ; and it seems to be necessary also to give a translation in Eng- 
 lish (r); and perhaps if slanderous words be spoken in a, foreign language, 
 a translation of them should be set forth (s) although it has been consider- 
 ed sufficient to aver that the hearers understood such language (f) (4). 
 But provincial expressions in this country may be set forth without express 
 explanation on the record (?*). 
 
 ig) 2 East, 438; Gilb. Law and Evid. (n) 2Bla. Rep. 1037. Published, or caused 
 
 229; 2 Saund. 74 b; 1 Salk. 11, in notes: to be published, when aided, 8 Mod. 328; 1 
 
 Rep. temp. Hardw. 305, 806; 4 T. R. 217; Show. 125; Vin. Ab. Libel, E. pi. 4. 
 
 Bui. N. P. 5; 2 Campb. 134; 1 Stark. Slan- (o) Cro. Eliz. 480; Noy,57; Goulds. 119; 
 
 der, 374; 2 Esp. R. 491; and see 4 Bing. Cro. Jac. 39; Cro. Car. 199. 
 
 261. {p) Sty. 70; 1 Stark. Slander, 2d ed. 360. 
 
 (A) 4 Bing. 261; 6 Bing. 451. (7) 6 T. R. 162; 3 M. 4- Sel. 116. 
 
 (i) 10 Co. 131 a; 2 Saund. 307 a, n. 1; 3 (r) See 3 B. & B. 201; 10 Price, 88; 1 
 Wils. 185; Vin. Ab. Damages, Q. • Saund. 242 a. note b. 5th edit.; 1 Stark. Slan- 
 
 (fr) Peake's C.N. P. 125, 22, 166; Bal. N. der, 2d edit. 368, 369; Bayl. on Bills, 5th 
 
 P. 7; 3 Esp. 133, 134; 1 Campb. 48; butthe edit. 445. 
 
 defendant may provethe truth of these words, (s) Id.; sed vide 1 Saund. 242 a, note. 
 
 2 Stark. 417. (0 1 Saund. 242 a, note. Sed qutere. 
 
 {I) Id.; 1 Campb. 48, 49. («) Com. Dig. Action, Defamation, G. 6; 1 
 
 (m) 1 Saund. 242. n. 1; 1 Stark. Slander, Eol. Ab. 86, pi. 1. 
 2d ed. 358, 411. 
 
 (1) It is sufficient if the plaintiff prove the substance of the words. Phillip's Ev. 154; Ward 
 1!. Clark, 2 Johns. 12. If the words laid are, that the plaintiff stole the goods of A., they will 
 not be supported by proof that the defendant said, that he stole the goods of B.; or if it be 
 charged that the defendant said, that the plaintiff conspired with B., C. and D. ; it will not be suf- 
 ficient to prove the defendant said, that the plaintiff conspired with B. and C. : these bein^ dis- ♦ 
 tinot offences. Jonnston s. Tate, 6 Binn. 121. Different sets of words importing the same 
 charge, laid as spoken at the same time, may be included in the same ppunt. Rathbun v. Emigh, 
 
 6 Wend. 407. 
 
 (2) Vide Cheetham v. Tillotaon, 5 Johns. 430. 
 
 , (8) Vide Thomas v. Croswelf, 7 Johns. 270, 271. 
 (4) Warmouth v. Cramer, 3 Wendell, 394; Bechtell v. Shatler, Weight, 107. 
 
406 OP THE DECLARATIOM. 
 
 ly. ITS There should be an averment that the defendant maliciously published 
 PARTS, &o. ^^g matter, but any equivalent expressions, as " wrongfully and falsely," 
 5thly. The ^q_ ^{w^ it seems suffice (x) ; the word maliciously appears to import that 
 aotloii" the words -wqvq falsely uttered (jj') ; but it is usual and better to state that 
 the matter was '■'■falsely and maliciously " published, &c. 
 , We have already adverted to the statute (s), which gives the Court the 
 power to permit amendments'of errors in setting out written instruments 
 to be made at the trial of the cause (a) ; and the enactment in 3 & 4 W. 
 4, c. 42, s. 23, should al-o be referred to. 
 i.'lh&inu- 4thly. The innuendo, as "he (meaning- the plaintiff,) &c." also *re- 
 T*Ar\7 1 1'^^''^^ great attention and care (6). It is merely a form or mode of intro- 
 L 4U/ J (jQcing explanation : " It means no more than the words ' id est,' ' scili- 
 cet,' or ' meaning,' or ' aforesaid,' as explanatory of a subject-matter suf- 
 ficiently expressed before ; as such a one, meaning the defendant, or such 
 a subject, meaning the subject in question" (c). It is only explanatory 
 of some matter already expressed ; it serves to point out where there is 
 precedent matter, but never for a new charge ; it may apply what is al- 
 ready expressed, but cannot add to or enlarge, or change the sense of the 
 previous words (c/) (1). Thus, where the declaration charged that the 
 slander was " he has forsworn himself, (meaning that the plaintiff had 
 committed wilful and corrupt perjury,") it was held, that as there was no 
 inducement or previous or other statement, that the words related to false 
 swearing in & judicial proceeding, the declaration was bad, for the^HWMew- 
 do could not extend their meaning (e). Whenever therefore an induce- 
 ment, or prefatory statement of the existence of some extrinsic fact, to 
 which the libel or words referred is essential, the omission, as we have 
 seen, is fatal (/), and there must be an innuendo expressly referring to 
 such inducement (2). 
 
 A declaration for libel, after certain introductory matter, which was im- 
 material, because not properly connected with the libel, set out the follow- 
 ing publication " of and concerning the plaintiff :" — " Society of Guardians 
 for the Protection of Trade against Swindlers and Sharpers, &c. I (mean- 
 ing defendant) am directed to inform you, that A. B. (meaning plaintiff) 
 and 0. D. are reported to this society as improper to be proposed to be 
 balloted for as members thereof ; (meaning that the plaintiff was a swindler 
 and a sharper, and an improper person to be a member of the said socie- 
 ty)." After verdict for the plaintiff, it was held, in arrest of judgment that 
 the innuendo was not warranted by the libel, and that the words of the li- 
 
 {x) See 1 Saund. 242 a, note 2; 1 Stark. So, if the declaration be, "he has burnt my 
 
 Slander, 2d edit. 433; ante 390, post, vol. ii. barn," an innuendo, "a Burn full of corn" a 
 
 (y) 1 T. R. 493; 1 Stark. Slander, 2d ed. bad; there being no inducement that the 
 
 436; ante, 390,391. plaintiff had corn in a barn, and that the 
 
 (z) 9 Geo. 4, c. 15. words related thereto, 4 Coke's Rep. 20. 
 
 (a) Ante, 319. (/) jintc, 400 to 403. The author, howev- 
 
 (4) See 1 Stark. Slander, 418, 2d edit.; er, ventures to assume that if the euential 
 
 Selw. Slander, III; 1 Saund. 243, n. 4. matter to be averred appear in an'g part of 
 
 (c)Per De Gray, C. J., Cowp. 683. the declaration , however out of ' order or 
 
 (d) 1 Saund. 243, note 4; see pos(, vol. ii. clumsily, still if it sufifioiently relate to and 
 8 East, 430, 431 ; 9 Ir/. 95. control the other parts, it will suffice. 
 
 (e) 6 T. R. 691; Yelv. 27; see ante, 400. 
 
 (1) M'Clurg V. Ross, 5 Einn. 218. Vide Peltaa v. Ward, 3 Ciines, 76; Thomas v. Croswell, 
 7 Johns. 271; Van Vechten o. Hopkins, 6 Johns. 211; Vaughau v. Havens, 8 Johns. 109; 
 Ellis i>. Kimball, 16 Pick. 182; Miller v. Maxwell, 16 Wendell 9; Goodrich v. Woolcott, 3 
 Cowen, 231; M'Cuen v. Ludlum, 2 Harr. 12. 
 
 (2) See Jacobs v. Tyler, 8 Hill, 572. 
 
FOB TOETS.— FOR SLANDER IN PARTICULAR. 407 
 
 bel, unexplained by m<ro(^Mctor?/ matter, were not actionable (^). Thei«- ^^- ™ 
 nuendo cannot supply the omission of a necessary inducement of matter ; ^'^*™' *<'• 
 and an innuendo introducing new facts or otherwise than by reference to a ^*^'y- ^^^ 
 previous inducement is fatally defective (li) ; and a statement that he is a action, 
 regular prover under bankruptcies, " meaning that plaintiff was accustomed 
 to prove lictitious debts under commissions," was held ill without a pre- • 
 vious averment that the defendant had been accustomed to employ the 
 words in that sense (i). 
 
 . *An innuendo, though it may in. the particular case be unnecessary, will [ *408 ] 
 sometimes limit and confine the plaintiff in his proof, to show that the slan-" 
 der had the meaning thereby imputed to it ; thus, where the plaintiff al- 
 leged that he was treasurer and collector of certain tolls, and that the de- 
 fendant spoke of him, as such treasurer and collector, certain words, 
 " thereby meaning that the plaintiff, as such treasurer and collector, had 
 been guilty," &c., it was held that this plaintiff was bound by the innuen- 
 do to prove that he was treasurer and collector (k). If the words im- 
 ported either fraud or felony, but by the innuendo they be confined to the 
 latter, the plaintiff must prove they were spoken in the latter sense (Z). 
 The innuendo affixing a particular signification to the slander should 
 therefore never be unnecessarily adopted, as is too frequently the case (Z). 
 It is not unusual, even after setting out words which clearly of themselves 
 import a charge of felony, to add, " thereby then meaning that the plain- 
 tiff had feloniously stolen, &c. :" this is unnecessary ; and as it is a state- 
 ment of a mere legal conclusion, is improper, though it may be surplus- 
 age (mi) (1). 
 
 On the other hand, where new matter introduced by an innuendo, with- 
 out any antecedent colloquium or statement to which it can refer to support 
 it, it is altogether unnecessary to sustain the action, then theinnuendo may 
 be rejected as surplusage (m) (2). 
 
 5thly. Little explanation need here be given with regard to the state- 5thly. 
 ment of the injury or damage resulting from the scandal, because the ob- ^^ n^™,"* 
 servations which we shall presently make as to the statement of damages ing Dama- 
 in all actions ex delicto will equally apply to an action for a libel or slan- ges. 
 der (o). The general rule is, that where the law infers damage, and the 
 words are actionable without special damage, none need be laid in the 
 declaration ; but that it is otherwise when the words are only actionable 
 in respect of the particular injury resulting from them (3). 
 
 is) Goldstein v. Fo99, 6 B. & C. 154; Af- M. 675; 3 Tyr. 688. S. C. 
 firmed in error, 1 M. & P. 402; 4 Bing. 489; (m) See Oowp. 175, 5 East, 463; 1 Stark, 
 
 and 2 Y. & J. 156, S. C. Slander, 2d edit. 428. The general r^le amic, 
 
 (A) Day v. Robinson, 1 Adol. & El. 554. 218, 221, 225. 
 
 (i) 7 Bing. 119, and see note (g) supra. (ji) 9 East, 93; 1 Crom. & M. 11; 2 Cr. 
 
 (/c) 4 B. & C. 665; 7 D. & R. 121; 3 &J. 361; 1 Stark. Slander,.2d edit. 426. 
 Campb. 461; 7 Price, 544; and see 4 Bar. & (o) Anle, 395 to 399; post, 418. 1 Stark. 
 
 Cres. 128. Slander, 2d edit. 439; 1 Saund. 243 c. n. 5. 
 
 (J.) 3 Camp. 461, Williams ,i). Stott, 1 Cr. & 
 
 (1) Vide Thomas v. Croswell, 7 Johns. 272. 
 
 (2) Mix V. Woodward, 12 Conn. 285, 286; Nestle v. Van Slyck, 2 Hill, 282. 
 
 (3) Shipman ». Burrows, 1 Hall, 399; Harcourt v. Harrison, 1 Hall,_474; Dioyt v. Tan- 
 ner, 20 Wendell, 190. So, in an action for overflowing the plaintiff 's land by the erection of a 
 dam on the land of t]ie defendant, in which the nature and extent of the alleged injury are 
 specially described in the declaration, the plaiotiff is entitled to a verdict for nominal damages, 
 though he fail to prove the particular injury complained of, or any other actual injury. Pas- 
 torius V. Fisher, 1 Rawle, 27; 15 Mass. 194; Gilm. 227. A declaration in the trespass for 
 entering the plaintiff's house, taking his goods, and terrifying and falsely imprisoning his wife, 
 
 Vol. I. 65 
 
408 OP THE DECLARATION. 
 
 IV. ITS 6thly. Having ascertained the mode of stating the cause of action, the 
 PAETs, &c. points relating to several counts in the same declaration are next to bo con- 
 6thly. Of sidered. The rules as to the joinder of different /oz-ms and causes of ac- 
 comitefp) *i°"- ^^'^'^ already been treated of (9) ; and it is here only nedessary to in- 
 quire when or to vjhat extent the statement of the sa?ne cause of action in 
 • different counts is at present permitted (1). We will however first consid- 
 r *409 ] er the practice before the recent rules, and then *state those rules and the 
 
 advisable course of framing declarations as respects several counts. 
 The prac- Before the recent pleadings rules, Hil. T. 4 W. 4, r. 5, f a declaration 
 tice ante- ■ might coHsist of numerous counts, and the jury might assess entire or dis- 
 th'^"'/ad tinct damages on all the counts (?")(2) ; and it was usual, particularly in 
 ing rules assumpsit and in actions on the case to set forth the plaintiff's same cause 
 of Hil. T. of action i)i various shapes in different counts, so that if he failed in the 
 4, W. 4. proof of one count he might succeed on another (s). Such additional 
 counts have been aptly termed safety valves (jf). The variations, however, 
 must even then have been substantial ; for if the different counts were so 
 similar that the same evidence would support each, and the variation was 
 of any considerable length and vexatiously inserted (m), the Court would, 
 on application, refer it to the master for examination, and to strike out 
 the redundant counts, and in gross cases direct the costs to be paid by the 
 attorney {y^ (3) : but under the restriction of avoiding as much as possi- 
 ble any unnecessary increase of the costs, it was advisable, when the case 
 would admit, to state in various counts the facts in diffei-ent ways, corre- 
 sponding with the evidence which might probably be adduced, and such 
 counts were in general progressively more brief and concise ; and this was 
 particularly necessary in special assumpsits, where there was a doubt either 
 as to the consideration of the terms of the contract or its legal effect, or 
 the mode in which the plaintiff had performed his part, or the defendant 
 had violated his (oc). Thus, in a special action of assumpsit for a breach 
 of promise of marriage, if the defendant promised to marry upon a partic- 
 ular day, the first count was framed accordingly, but for fear the plaintiff 
 should not be able to prove such particular promise, it was usual when 
 the evidence would probably support the allegation, to add a count to mar- 
 ry on request, another to marry in a reasonable time, and another to mar- 
 ry generally (jj^). So in declaring on a contract to deliver goods, if the 
 
 (p) In general, Stephen, 2d ed. 309; 3d several counts, when, 2 Stark. Crim. Law, 
 
 edit. 266, 267 to 277. 460; 1 Chit. Crim. Law, 252. 
 
 (g) Ante, 199. (() Per Vaughan, B., in 2 Dowl. 76; 1 
 
 (r) Per De Grey, C. J., 3 Wils. 185. In C. Cromp. & M.84B. 
 P. the Court would compel the plaintiif to («) 3 Smith, 113. 
 
 elect in the term after the trial on what count (v) 1 New Rep. 289; Rep. T. Hardw. 129; 
 
 he would enter up a verdict taken generally, see the former practice as to striking out sup- 
 
 2 Taunt. 36. perfluous counts, Tidd, 9th edit. 616; and 3 
 
 (s) 3 Bla. Com. 295. In mixed actions, as Chitty's Gen. Prac. 638; see 1 D. & R. 171, 
 
 guffrc impeiji, several counts are admissible, 508; IChit. R. 709; 2 Bing. 412. 
 and often essential, see 1 Adol. & Ell. 394; in {x) See Stephen, 2d ed. 315. 
 indictments, the courts object to there being (y) Post, vol. ii. ; 1 M. & P. 239. 
 
 was held good after verdict, and that the injury to the wife should be taken as a matter of ag- 
 gravation only. Heminway v. Saxton, 3 Mass. 222. And see Dimmett v. Eskridge, 6 Munf. 
 308; Sampson v. Coy, 16 Mass. 493; Treat v. Barber, 7 Conn. 275; Butler v. Kent, 19 
 Johns. 223. 
 
 (1) Two counts are inadmissible in a writ of right or of replevin. Boston v. Otis, 20 Pick. 
 30; Hart v. Fitzgerald, 2 Mass. 509. 
 
 (2) Vide Neal v. Lewis, 2 Bay, 206. 
 
 (3) See the people v. The New York C. Pleas, 19 Wend. 113. 
 
 t See American Editor's Preface. 
 
OP SEVERAL COUNTS IN GENERAL. *410 
 
 stipulation was to deliver within a specified time and at a particular place, i^. us 
 the first count was adapted to such facts, and the second to deliver on re- ^^^'^' *"• 
 quest or generally, and a third within a reasonable time (z) ; and it was 6tWy. Of 
 frequently advisable to declare in different counts, the one on an execute- counts, 
 ry, the other on an executed consideration, the first to *admit of evidence 
 of the defendant's stipulation at the time of entering into the contract, . 
 the other of subsequent admissions or promises. And we have seen that 
 in an action at the suit of an executor or administrator, it is frequently 
 necessary to add a set of counts on promises to the plaintiff in his repre- 
 sentative capacity, in order to admit of evidence of a promise or acknowl- 
 edgment to the plaintiff, to take the case out of the statute of limita- 
 tions (ffl). It was usual also to add such common counts as were applica- 
 ble to any part of the plaintiff's case (6), and after the indebitatus count 
 for work and labor, or goods sold, &c. it was usual to add a quantvm me- 
 ruit or valebant count (c), though the latter we have seen had of late been 
 considered unnecessary (d). 
 
 Also in debt on simple contracts, legal liabilities, and penal statutes, it 
 was frequently advisable to vary the statement of the cause of action in 
 different counts. But in debt on specialties and records, and in covenant, 
 as the instrument declared upon could not, i£ due care were taken, vary 
 from the statement in the declaration, one count would in general suffice. 
 In an action upon a deed, of which a profert, or an excuse for it, might be 
 necessarv, if it were doubtful whether the deed could be produced or 
 whether it were in the possession of the defendant, or be lost or destroyed, 
 it was proper to declare in one count, stating the profert ; in another count, 
 stating the deed to be in the possession of the defendant ; and in a third, 
 that it was lost, &c. (e) ; so that the risk of being restricted to making a 
 profert without being able to give oyer, or of alleging an excuse which 
 could not be established, might be avoided. 
 
 In declarations for torts, several counts for the same cause of action 
 were also frequently advisable, particularly in actions for words which are 
 usually stated in different ways, and sometimes with different innuendoes 
 so as to meet the probable evidence (/). In trespass, if there had been 
 two or more assaults, it was proper to insert as many counts as there were 
 assaults, in order to avoid the necessity for a new assignment (g) ; and if 
 there were only one count, and the plaintiff failed in proving one battery, 
 he could not after attempting to do so give in evidence another assault, as 
 he might do if there had been two counts (A). So in trespass quare claw- 
 sum f regit, if there have been any asportation of personal property, it was 
 usual to insert two counts, in the first charging an injury to the land and 
 taking the goods there, which is in its nature local and must be proved as 
 laid ; and in the second declaring merely for the asportation of the goods, 
 which is transitory, and may be supported though the taking *be proved [ *411 ] 
 elsewhere (i) (1). And where there had been an asportation of personal 
 
 (a) U. 164, 165. (/) Post, vol ii.; in Beplevin, Via, Ab. 
 
 («) .5nie,359, 360. See the form, posi, vol. Declaration, Q. 
 
 ii.; and see fully the form in Foxwist v. Tre- (g) 1 Saund. 299, n. 6; 1 T. E. 479; post, 
 
 maine, 2 Saund. 207, 208. vol. ii. 
 
 (6) Ante, 339 to 860. (A) 1 Campb. 473. 
 
 (c) 3 Bla. Com. 295. (i) Per Buller, J., 1 T. K. 479; and see 7 
 
 {d) Anle,ZiZ; 2 Saund. 122 a. East, 325. 
 
 (c) 4East,585; lEsp.Bep. 337; post, vol. ii. 
 
 i ~~~~~ 
 
 (1) Where in trespass for breaking the plaintiff's close, and taking away his chattels, 
 the declaration does not contain a count for only taking the chattels, the plaintiff cannot 
 recover for taking them, unless he proves a breach of the close. Kopps ». Barker, 4 Pick. 239^ 
 
411 OF THE DECLARATION. 
 
 IV. iM property, (which in the case of roots, earth, or other matter affixed to the 
 PARTS, &o. y^ggiiQid^ must be aa actual carrying away from the land where the same 
 6thly. Of -^pjjg (Jug, <fec. and not a mere conveyance of it to another part of the prem- 
 counu ^^^^ where the same was dug) (A), it was expedient to insert the common 
 asportavit count (J). If, however, a declaration in trespass contained two 
 counts, and the defendant pleaded not guilty to the first, and suffered judg- 
 ment by default, as to the other, and on the trial the plaintiff only proved 
 one act of trespass, to which the second count was applicable, he was not - 
 entitled to a verdict on the first (m). So if a declaration contained two 
 counts in fact on the same bond or instrument, and the defendant pleaded 
 a plea applicable to both the counts, and also a special plea which was an 
 answer to the first count only, and such special plea was substantiated, 
 then the plaintiff could not at the trial abandon the first count and proceed 
 on the second, so as to avoid the effect of the special plea (w) (1). 
 
 In the adoption of several counts care must be taken that there be no 
 misjoinder (o). The jury may indeed assess entire or distinct damages on 
 each of the counts (2) when separate injuries have been proved (p). If 
 distinct damages be assessed, judgment may be given upon either of the 
 counts ; but if the jury find entire damages on all the counts, the judg- 
 ment must be entire, in which case if one of the counts be insufficient 
 judgment will be arrested, or a writ of error be substantiable (^q) (3), and 
 the judgment will be arrested in ioto, and no venire de novo awarded (r) 
 (4). in case therefore, if there be an insufficient count, if the mistake 
 be discovered before verdict, it is expedient to strike it out by leave of the 
 judge, or to enter a nolle prosequi as to such count ; or at the trial to take 
 a verdict only on the sufficient counts, cautiously avoiding to give evidence 
 in support of the bad count. However, where a general verdict has been 
 taken and evidence given only on the good counts, the Court will permit 
 the verdict to be amended by the judge's notes, &c. (5) ; and if it appear 
 
 (k) HuUoct, 76. 1 Nev. & Man. 321. 
 
 (Z) HuUook, 74 to 84; and see 7 "East, 325; (p) Id. 
 
 andpost, vol. ii. as to costs. (5) Cowp. 276; 3 Wils. 185; 2 Sauud.lBlb; 
 
 (m) 7 T. R. 727. Dougl. 722, 730; 3 M. & Sel, 110. 
 
 (71) And see u»i(c, 839, 340. (r) Id. ibid. • , 
 
 (0) As to misjoinder, see ante, 199 to 206; 
 
 (1) Driggs V. Rockwell, 11 Wend. 506. 
 
 (2) Vide Burnham v. Webster, 5 Mass. 269. And the plaintiff may enter a nolle prosequi as 
 to the insufBcient count. Livingston v. Livingston, 3 Johns. 189. 
 
 (3) Vide Backus v. Richardson, 5 Johns. 476; Cheetham «. Tillotson, Id. 485; Bayard 
 V. Maloom, 2 Johns. 578; Van Rensselaer v. Platner, 2 Johns. Cas. 18, 21, 23; Hopkins v. 
 Beedle, 1 Caines, 849; Vaughan v. Havens, 8 Johns. 110; Benson v. Swift, 2 Mass. 53; 
 Pell V. Lovett, 19 Wendell, 546; S. C, 22 Wendell, 369; Bodley r. Roop, 6 Blaokf. 158. 
 Contra Neal v. Lewis, 2 Bay, 204; Neilson v. Emerson, 2 Bay, 439; Blanchard v. Fiske, 2 N. 
 Hamp. 398. Where in an action of covenant, several breaches were alleged, and a discharge 
 pleaded as to part, on which the defendant had judgment on demurrer, and issue taken as to 
 the residue, and a general verdict for the plaintiff, it was intended that the verdict was for such 
 breaches only as were not covered by the special plea. Eastman v. Chapman, 1 Day, 30. 
 
 (4) See Gordon v. Kennedy, 2 Binn. 287. But in Hopkins v. Beedle, 1 (Jaines Rep. 
 847, where judgment vras arrested on account of entire damages having been given, some of 
 the counts in the declaration being bad, the court said that the plaintiff, on application, might 
 have been entitled to a venire de novo, on payment of costs. And in another case, Lyle v. Cay- 
 son, 1 Caines, 581, where judgment went by default, the court held that the plaintiff was en- 
 titled to a writ of inquiry de notio on payment of costs. Et Vide Livingston v. Rogers, 1 
 Caines, 588. 
 
 (5) Ace. Union Turnpike Company v. Jenkins, 1 Caines, 818. Et vide Stafford v. Green, 1 
 Johns. 505; Van Rensselaer v. Platner, 2 Johns. Cas. 17; Roe v. Crutchfield^l Hen. & Mun. 
 865; Roulaine v. M'Dowall, 1 Bay, 490; Cooper r. Bissel, 15 Johns. 318; Cornwall v. 
 Gould, 4 Pick. 146; Patten v. Gurney, 16 Mass. 187; Paul v. Harden, 9 Serg. & R. 23; Norri* 
 
OF SEVERAL COUNTS IN GENERAL. *412 
 
 by the judge's notes that the jury calculated the damage on evidence ap- iv. its 
 plicable to the good count only, the judge will amend the postea by direct- ^''^'^^' ^''• 
 ing that the verdict be entered on those counts, though evidence was giv- Sthiy. Of 
 en applicable to the bad count also (s). And where judgment has been H^^ats. 
 given on demurrer or by nil dicet in favor of tiie plaintiff, he may, after 
 entering judgment for himself upon the whole *declaration, upon discover- 
 ing any error in one of the counts, waive his judgment on that count and 
 enter it for the defendant (0 (!)• A nolle prosequi as to one count does 
 not preclude the plaintiff from proceeding at the trial upon another count, 
 ■which, although apparently for a different cause of action, is in reality 
 founded on the demand which might have been recovered upon the count 
 ■which the plaintiff abandoned (m). 
 
 The costs also were always to be considered in adding several counts. Costs of 
 Before the late rules the law was thus, — whore the plaintiff obtained a ver- ^^u^f^ 
 diet only upon one of several counts or issues, whether in the King's Bench 
 or Common Pleras, he was only entitled to the costs relating to the trial of 
 such issues ; and the defendant was not allowed the costs of the counts found 
 for him, though upon supposed causes of action different from that in respect 
 of which the plaintiff recovered (2/) ; and the same rule prevailed where a 
 defendant succeeded on-a demurrer as a part of the plaintiff's demand, 
 and the plaintiff had obtained a verdict as to the residue, in which case 
 no costs were allowed to the defendant in respect of the demurrer(2r): but , 
 if there were two distinct causes of action in two separate counts, and as 
 to one'the defendant suffered judgment by default, and as to the other took 
 issue and obtained a verdict, he was entitled to judgment for his costs on 
 the latter count, notwithstanding the plaintiff was entitled to judgment and 
 costs on the first count («). It was considered that where the plaintiff in 
 different counts varied the statement of the same cause of action for fear 
 of a variance and nonsuit on the trial, and succeeded upon one, it was but 
 reasonable that he should not be punished with the payment of costs in re- 
 spect of such other ctf the counts as he might not be able to prove ; but 
 that where he unnecessarily and without foundation proceeded in the same 
 declaration in different counts for distinct causes of action, requiring the 
 defendant to adduce different or additional evidence to resist them, it 
 might be more reasonable to allow the defendant the costs of such improp- 
 er counts, and of the evidence which the defendant adduced to negative 
 them (6) ; but according to the practice the defendant was not in either 
 case entitled to costs (f) (2). 
 
 (s) 2 Saund. 171 b; Dougl. 730; 10 Moore, to have escaped observation; and see Tidd. 
 
 446, 452 a; Tidd, 9th ed. 901, 713. ' 9th ed. 974, 975. 
 
 (0 2 B. & P. 49. (z) 5 East, 261; Tidd, 9th ed. 972. 
 
 (u) 1 R. & M. 311. (a) 3 T. R. 654; 6 Id. 602, 60.3. 
 
 (a) See Tidd, 9th ed. 917, 971. (6) See Lord Eldon's observations in 2 B. 
 
 (y) 2 B. & P. 334; 5 East, 261; 2 Marsh. & P. 385, and Lord Kenyon's in 6 T. R. 601. 
 
 201; 3 M. & Sel. 323; 16 East, 129. In (c) 2 B & P. 335; 5 East, 261; Tidd, 
 
 Tidd, 4th edit. 874, n. 8, and 5 East, 263, the 971, 972; Hopkins v. Barnes, 2 Price, 136; 
 
 practice of the Common Pleas is stated other- and see Jervis's Rules Hil. T, 2 W. 4, r. 74, 
 
 wise, but the case in 2 B. & P. 334, appears note (x). 
 
 V. Durham,>9 Cowen, 151; Sayre u. Jewett, 12 Wend. 135; Clarke v. Lamb, 6 Pick. 512; 
 Jones V. Kennedy, 11 Pick. 125; Walker v. Dewing, 8 Pick. 520; .Jackson v- Cannon, 2 Cowen, 
 615; Hunley ». Lewin, 5 Ham. 227; Girard v. Styles, 4 Yeates, 1 ; Scott v. Galbraith, 1 Call. 
 134. 
 
 (1) Contra Bachus k. Eiohardson, 5 Johns. 476. Unless he obtain leave of the court to do 
 so. Ibid. 
 
 (2) If judgment is arrested for one bad count, the defendant is entitled to his full costs on all 
 the issues, as the party prevailing. Glbst)n i). Waterhouse, 5 Greenl. 19. 
 
*413 OF THE DECLAEATIOM. 
 
 IV. ITS At length however the G-eneral Rule, Hil. T. 2 W. 4, r. 74, ordered 
 TARTi, &o. *u ^i^g^j. p_g gQgj.g gjj^n ^Q allowed on taxation to a plaintiff upon any counts 
 6thly. Of Qp issnos upon which he has not succeeded ; and the costs of all issues 
 counu! found for the defendant shall be deducted from the plaintiff's costs ;" and 
 The exist- it h^s been held that the general issue to a declaration containing many 
 ing Rules counts creates as many issues within the meaning of this rule, and the de- 
 w'4^ % fendant is now entitled to costs upon every coun^ on which the plaintiff 
 83 to'oosts' f"-'!^ C^)' ^iifi *^s rule applies to each separate count in ejectment (e) ; 
 of several and it has been held that if the plaintiff do not prove all the words in a 
 issues. count in slander the defendant is entitled to the costs of the pleadings 
 found for him (/). The decisions and practical operations upon this 
 rule have been pointed out in another work, to which the reader is re- 
 ferred (g-). 
 
 Form of In framing a second or subsequent count for the same cause of action, 
 subsequent care was and still is essential to avoid any unnecessary repetition of the 
 """^"^ ■ same matter ; and by an inducement in the first count, applying any mat- 
 ter to the following counts, and by referring concisely in the subsequent 
 counts to such inducement, much unnecessary prolixity may be avoided ; 
 and this is usual in actions for words, and proper to be attended to in all 
 cases (Ji) (1). But unless the second count expressly refers to the first, 
 no defect therein will be aided by the preceding count ; for though both 
 counts are in the same declaration, yet they are for all purposes as distinct 
 as if they were in separate declarations ; and consequently they must in- 
 dependently contain all necessary allegations, or the latter count must ex- 
 pressly refer to the former (i) (2). The commencement of a second count, 
 " And whereas also," &c. is sufficiently positive (A;). In order to avoid, 
 any objection on the ground of duplicity (/), it is advisable to insert in the 
 second count for the same cause of action, the word " other" goods, &c. 
 (m) or in ejectment " other " messuages, <fec. (w) ; but after verdict the 
 [ *414 J *Court will not intend the goods, &c. mentioned in the second count to be 
 the same as those in the first, unless it be expressly so stated (o). 
 
 (d) Cox V. Thomson, 2 Crom. & Jer. 498. jeant Stephen, (2d ed. 318, 319,) Whether the 
 
 (e) Doe V. Webber, 1 Har. Rep. 10. subjects of several counts be really distinct or 
 .(/) Prudhommei;. Fraser, 1 Har. Rep. 5. identical, they must always purport to be 
 
 (g) 3 Chitty's Gen. Prac. 4^7 to 479. founded on distinct causes of action, and not 
 
 (A) See the observations of Lawrence, J., to refer to the same matter. This is evident- 
 
 7 East, 506, and 2 Hen. Bla. 131,132; 2 ly rendered necessary by the rule against du- 
 
 Wils. li4, 115; Cro. Eliz. 240; 2 Bla. Rep. plioity, (see onie, 226,) which, though cuadei 
 
 1038; and precedents. Crown, Giro. Comp. as to the declaration by the use of several 
 
 9th edit. (1820) ; ^osi, vol. ii. In a second counts in the manner here described, is not to 
 
 count, on a deed or agreement, it is not un- be directly violated. 
 
 usual to commence the count by alleging that (t) Bao. Ab. Pleas, and Pleading, B. I. 
 
 " the deed or agreement in the first count (/c) Post, vol. ii. 
 
 mentioned, having been made as therein men- (l) See ante, 226. 
 
 tioned," &o. But it would Seem to be more (m) 2 Ld. Raym. 852; 7 Mod. 148, S. C; 
 
 correct to aver, that " a certain oiftej- deed or Com. Dig. Pleader, C. 33 ; sedvide Salk. 213. 
 
 agreement was made between'the parties con- see supra n. (ft). 
 
 taining the like terms and stipulations as (n) 2 Stra. 90S. 
 
 were and are contained in the deed set forth in (o) Salk. 213; Bao. Ab. Pleas, B. 1; Vin. 
 
 the first count;" for, as observed by Mr. Ser- Ab. Declaration. 
 
 (1) It is unnecessary in slander to preface each count with all the inducements and allega- 
 tions contained in the first; a reference in the several counts to the allegations in the first is suf- 
 ficient. Loomis V. Swick, 3 Wendell, 205; Nestle v. Van Slyck, 2 Hill, 282. 
 
 (2) Where there is special demurrer to the whole declaration, a count which is bad cannot be 
 referred to, for the purpose of helping out another count. Nelson v. Svran, 18 Johns. 488. 
 
OP SEVERAL COUNTS IN CENERAL. 414 
 
 « 
 
 It not unfrequently happens that the defendant attempts to defeat the ad- i^. m 
 vantage to be derived from several doubts, by alleging in his plea thereto ^^^'^^' ^°' 
 that the supposed causes of action therein mentioned are one and the same ^'•''y- <5f 
 cause of action, and then showing matter which is, only an answer to one counts, 
 cause of action (1) as in the instance of two counts for assaults, the plea pieacbing 
 often has been, " that the assaults in the different counts are but one and to several 
 the same ; and then son assault demesne to the whole has been pleaded(p). <'°"°'^ ^°^ 
 This mode of pleading is bad on demurrer (9) ; but if the plaintiff reply cause of 
 to the plea instead of demurring, he admits the allegation that there is action, 
 but one cause of action, and is restricted thereto at the trial (r). The 
 plaintiff should therefore in such case demur, if it be material to him to re- 
 ly upon each separate count, and not to be limited to proof of one cause of 
 action : for if there be two distinct causes of action, he might, it should 
 seem, traverse and take issue upon the allegation that the torts are one 
 .and' the same. 
 
 The common law right to introduce several counts into the same dec- The rule 
 laration, in fact, for the same subject ma tier of complaint, and varying ^''- J- *' ' 
 from the first count only in statement, description, or circumstances, hav- 5 "g 7"^*^' 
 ing been vexatiously abused, and the necessity for permitting such varia- prohibiting 
 tions having been removed by the 3 & 4 W. 4, c. 32,f s. 24, giving the s*"^™' 
 judge power to amend pending the trial of an action in almost every case decisions 
 of variance, not prejudicing the opponent on the trial of the merits, the tiiereon. 
 Reg. Gen. Hil. Term, 4 W. 4, reg. S,-}- after reciting that consequence, 
 then limits the use of several counts. 
 
 Reg. 5 orders, ihat several counts shall not be allowed, unless a distinct Several 
 subject-matter of complaint is intended to be established in respect of each ; <=™'>'s and 
 nor shall several pleas, or avowries, or cognizances be allowed, unless a aUowed" 
 distinct ground of answers and defence is intended to be established in 
 respect of each. 
 
 Therefore counts founded on one and the same principal matter of com- Instances 
 plaint but varied in statement, description, or circumstances only, are not J"'^^^"'*'^*- 
 to be allowed. 
 
 Ex. ST. Counts founded upon the same contract, described in one as a Contract 
 & - ^ - ■ - - - - with cor 
 
 dition. 
 
 contract without a condition, and in another as .a contract with a condi- '"*<=<'°' 
 
 tion, are not to be allowed ; for they are founded on the same subject- 
 matter of complaint, and are only variations in the statement of one and 
 the same contract. 
 
 So, counts for not giving, or delivering, or accepting a bill of exchange Non-de- 
 in payment, according to the contract of sale, for goods sold *and deliver- Jj.'^^y "^ 
 ed, and for the price of the same goods to be paid in money, are not to be -^^^l,^^^' 
 allowed. r */^\^ i 
 
 So, counts for not accepting an^ paying for goods sold, and for the ^^^^ ^^ r. 
 price of the same goods, as goods bargained and sold, are not to be al- ing and 
 
 lowed. paying for 
 
 But counts upon a bill of exchange or promissory note, and for the con- ^°°^^' ^^^^ 
 sideration of the bill or note in goods, money, or otherwise, are to be 
 considered as founded on distinct subject-matters of complaint ; for the 
 
 (p) See posi, vol. iii. (r) 1 E. & M. 118. 
 
 (9) See Index, " Q,ua sunt eadem." 
 
 (1) See Colby v. Everett, 10 N. Hamp. 329, 
 t See American Editor's Preface. 
 
415 
 
 OF THE DECLARATION. 
 
 IV. ITS 
 PARTS, &C. 
 
 6thly. Of 
 several 
 counts. 
 Policies. 
 Premium. 
 Charter 
 parties. 
 Freight 
 pro rata. 
 Demise 
 and use 
 and occu- 
 pation. 
 Misfea- 
 Nonfea- 
 sance. 
 Trespass. 
 
 Indebita- 
 tus as- 
 sumpsit. 
 
 Account 
 stated. 
 
 Several 
 breaches. 
 
 debt and the security are different contracts, and such counts are to be 
 allowed. 
 
 Two counts upon the same policy of insurance are not to be allowed. 
 
 But a count upon a4)olicy of insurance, and a count for money had and 
 received, to recover back the premium upon a contract implied bylaw, are 
 to be allowed. 
 
 Two counts on the same charter-party are not to be allowed. 
 
 But a count for freight upon a charter-party, and for freight pro rata 
 itineris, upon a contract implied by law, are to be allowed. 
 
 Counts upon a demise, and for use and occupation of the same land for 
 the same time, are not to be allowed. 
 
 Id actions of tort for misfeasance, several counts for the same injury, 
 varying the description of it, are not to be allowed. 
 
 In the same actions for nonfeasance, several counts founded on varied 
 statements of the same duty are to be allowed. 
 
 Several counts in trespass for acts committed at the same time and place, 
 are not to be allowed. 
 
 Where several debts are alleged in indebitatus assumpsit to be due in 
 respect of several matters, ex gr., for wages, work and labor as a hired 
 servant, vjork and labor generally, goods sold and delivered, goods bar- 
 gained and sold, money lent, money paid, money had and received, and the 
 like, the statement of each debt is to be considered as amounting to a sev- 
 eral count within the meaning of the rule which forbids the use of several 
 counts, though one promise to pay only is alleged in consideration of all 
 the delDts. » 
 
 Provided that a count for money due on an account stated may be join- 
 ed with any other count for a money demand, though it may not be intend- 
 ed to establish a distinct subject-matter of complaint in respect of each of 
 such counts. 
 
 The rule which forbids the use of several counts is not to be considered 
 as precluding the plaintiff from alleging more breaches than one of the same 
 contract in the same count. 
 
 Instances 
 of pleas 
 and avow- 
 ries, &c. 
 
 [ *416 ] 
 
 The cases 
 above men- 
 tioned as 
 instances 
 only. 
 
 Departure 
 from these 
 rules, how 
 taken ad- 
 vantage of. 
 
 Pleas, avowries, and cognizances, founded on one and the same princi- 
 pal matter, but varied in statement, descriptions, or circumstances only, 
 (and pleas in bar in replevin are within the rule), are not to be allowed. 
 The rule then contains directions as to the pleas of payment ; accord and 
 satisfaction ; release ; liability of third *party ; agreement to forbear in 
 consideration of liability of third party ; lib. ten., easement, right of way, 
 right of common, common of turbary and estovers ; distress for rent, and 
 damage /eaxawi, and avowries for distress for rent. 
 
 The rule then declares that the examples in this and other places spe- 
 cified ar-e given as instances only of the application of the rules to which 
 they relate ; but the principles contained in the rules are not to be con- 
 sidered as restricted by the examples specified. 
 
 When more than one count, plea, avowry, or cognizance, shall have 
 been used in apparent violation of the preceding rule, the opposite party 
 shall be at liberty to apply to a judge (s), suggesting that two or more of 
 the counts, pleas, avowries, or recognizances, are founded on the same 
 
 (s) Semble, that according to Templar v. 
 Melton, Hil. T. 1836, C. P. the application 
 must in first instance be to a judge at Cham- 
 
 bers, andj it is doubtful whether there can be 
 an appeal to the Court; and see Chitty'8 Gen. 
 Prao. 35, n. (u). 
 
OF SEVERAL COUNTS IN GENERAL. 416 
 
 subject-matter of complaint or ground of answer or defence, for an order iv. its 
 that all the counts, pleas, avowries, or recognizances, introduced in viola- ^^"■'^> *"' 
 tion of the rule, be struck out at the cost of the party pleading ; where- 6thiy. Of 
 upon the judge shall order accordingly, unless he shall be satisfied, upon oouuts. 
 cause shown, that some distinct subjeci matter of complaint is bona fide 
 intended to be established in respect of each of such couutsj or some dis^ 
 tinct ground of answer or defence in respect. of each of such pleas, avow- 
 ries, or recognizances, in which case he shall indorse upon the summons, 
 or state in his order, as the case may be, that he is so satisfied ; and shall 
 also specify the counts, pleas, avowries, or cognizances mentioned in such 
 application, which shall be allowed. 
 
 Upon the trial, where there is more than one count, plea, avowry, or Costs of 
 cognizance upon the record, and the party pleading fails to establish a oo"Pt9 and 
 distinct subject-matter of complaint in respect of each count, or some dis- ^ ^^' 
 tinct ground of answer or defence in respect of each plea, avowry, or cog- 
 nizance, a verdict and judgment shall pass against him upon each count, 
 plea, avowry, or cognizance, which he shall have so failed to establish, 
 and he shall be liable to the other party for all the costs occasioned by 
 -such count, plea, avowry, or cognizance, including those of the evidence 
 as well as those of the pleadings, and further, in all cases in which an ap- 
 plicati'on to a judge has been made under the preceding rule, and any count, 
 plea, avowry, or cognizance, allowed as aforesaid, upon the ground that 
 some distinct subject-matter of complaint was bona fide intended to be es- 
 tablished at the trial in respect of each count, or some distinct ground of 
 answer or defence in respect of each plea^ avowry, or cognizance so allow- 
 ed, if the Court or judge, before whom the trial is had, shall be of opin- 
 ion that no such distinct subject-matter of complaint was bona fide intend- 
 ed to be established in respect of each count so allowed, or no *such dis- [ *417 
 tinct ground of answer or defence in respect of each plea, avowry, or cog- 
 nizance so allowed, and shall so certify before final judgment, such party 
 so pleading shall not recover any cost upon the issue or issues upon which 
 he succeeds, arising out of any count, plea, avowry, or cognzance with re- 
 spect to which the judge shall so certify." 
 
 The meahing of the terms of the rule, " unless a distinct subject matter Meaning of 
 of complaint is intended to be established in respect of each," is in some g|J^g^*^°^'^j, 
 measure explained by the instances stated in the rule, and by the instan- the°8e ^ ° 
 ces given of several pleas to be permitted or rejected. But we have seen rules, 
 it is still rather uncertain when a second varying count may be permitted,' 
 and the cases are contradictory {t). It seems that in an action on thes 
 case for an injury to a water-course, there may be two counts, one claim- 
 ing it in right of an ancient building, and another in right of a close (u) 
 and that in an action against the sheriff there may be a count for an arrest 
 and escape, and another' for not arresting the third person when there was 
 an opportunity (v') ; and in a declaration for treble value in not setting 
 outtithes there may be a second count for tithes as bargained and sold(a;); 
 
 (t) See 3 Chitty's Gen. Prac. 482, 483. ■ (x) Lawrence v. Stevens, 1 Gale, 164; but 
 
 (u) Per Paterson, J., inFrankumi). Earl see 3 Dowl. 777, differently reported. See 
 
 Falmouth, as stated in Bosanquet's Rules, also Jenkins v. Trebar, Legal Examiner, 263; 
 
 14; 1 Harr. & Wol. 1; 4 NeT. &Man. 330; 6 and ThomaSB. Whitbread, W. 3p§, 306. Sea 
 
 Car. & P. 529. cases and observations, 3 Chitty's Gen. Prao. 
 
 («) Per Paterson, J., in Guest v. Everest, 481 to 489; and practice as to striking out a 
 
 9 Legal Observer, 75; and Bosanquet's count, id. 638, 
 
 Rules, 13, in note. 
 
 Vol. I. 56 • 
 
417 OF THE DECLARATION. 
 
 IV. ITS and in a declaration for double rent a count for use and occupation may 
 
 PARIS, &c. i^g added (x) ; but in one of the latest cases Park, B., refused to allow a 
 
 6thly. Of count to recover four-pence per chaldron for metage on all coals imported 
 
 oolite i^^o ^^^ P°^'* °^ 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 lie 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 charty-party and a count pro rata 
 
 iiineris (tf). 
 
 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 sev- 
 eral 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 j 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 va- 
 riance 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 
 amendment. 
 
 7thly. The After stating the tort or cause of action, and, when necessary, the spe- 
 
 oonciusion cial injury or damage resulting therefrom, the declaration concludesj " to 
 
 tumXc the damage of the plaintif of £—,SfC." (y). 
 
 num., ^c. j^ penal actions at the suit of a common informer, as the plaintiff 's right 
 to the penalty did not accrue till tlie bringing of the action, and he can- 
 not have sustained any damage by a previous detention of the pAialty, it 
 is not proper to conclude ad damnum {z) ; but the mistake may be amend- 
 ed even after error brought (a). In an action by husband and wife for a 
 battery, &o. of the wife, or whenever the wife is properly joined in the 
 action, the declaration should conclude ad damnum ipsorum (6) 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) Jenkina v. Trebar, Hil. T. 1836; Legal 395. 
 
 Examiner, 263, 305 to 307. (z) i Burr. 2021, 2490. 1 Marsh. 180. 
 
 {x) 3 Chitty'B Gen. Prao. 475 to 449. (a) 1 Marsh. 180; query, if the claim to 
 
 ly) Com. Dig. Pleader, C. 74; 10 Co. damages might not in such case be viewed as 
 
 116 b. 117 a, b. As to this oonolusiori see 1 mere surplusage. 
 
 M. & Sel. 28fi. When damages should in \b) Com. Dig. Pleader, C. 84; id. 2 A. 4; 
 
 general be claimed, ante, 395. In assump- ISalk. 114; post, vol. ii. 
 
 sit, ante, 338; in actions ex delicto, ante, (c) Ante, 114, 115. 
 
 (1) But this is unnecessary. Martin v. Smith, 6Binn. 16, 21. 
 
OP SEVERAL COUNTS & GENERAL. 418 
 
 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 sufdcient ^^^'^' '^'^■ 
 to cover the real demand (d) (1) ; for in general the plaintiff cannot re- ^*My. The 
 cover greater damages than he has declared for, and laid in the con- "'""'''»™"- 
 elusion of his declaration (e) ; and after a verdict taken the Court will 
 not give leave to increase the damages laid in the declaration, and lake 
 judgment for the enlarged damages (/). But if the plaintiff will waive 
 the verdict, he may be allowed to amend his declaration by increasing the 
 damages, and will be let in to a new trial (g-). If judgment be given for 
 more damages than those laid in the declaration, it is error, and a Court 
 of error cannot reduce the sum to the amount stated in the declaration (A). ^ . _ 
 But the Court in which the action was brought will *allow the plaintiff to C *'*^^ J 
 enter a remittitur .of the surplus damages, and thus aid the error (t) (2). 
 If, therefore, the verdict be for more than the damages laid in the decla- 
 ration, 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 afterwards be increased by the 
 Court, .though such damages and costs might together exceed /the damag- 
 es laid in the declaration (A). It is usual in practice to state a sum suffi- 
 cient to cover the real demand, with interest up to the time of final judg- 
 ment. 
 
 In point of form the usual conclusion of a declaration in the King's The/orm* 
 Bench before the recent rules had always been " to the damage of the "? "onoi"- 
 plaintiff £ — , and therefore he brings his suit, &c. ;" or in a qui tarn ac- 
 tion " 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 con- 
 clusion was, " wherefore the said plaintff 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 dam-^ 
 age of the said plaintiff of £ — , whereby he is less able to satisfy our said i 
 
 lord the king the debt which he owes his said Majesty at his Exchequer, 
 and therefore he brings his suit, &c." Thje above differences in the form 
 of concluding in each Court are still to be observed in declarations in ac- 
 tions removed from an inferior Court, but in all personal actions com- 
 menced in either of the superior Courts, the Eeg. Gen. Trin. T. 1 W. 4,f Thepm- 
 prescribes the following form : " To the ddtnage of the plaintiff of £ — *" ""'"'■ 
 and thereupon he brings suit, Sfc." (n) but which it is implied is to vary 
 
 . (rf) 2 Lev. 57. East, 142. 
 
 (e) 10 Co. 117 a. b.; Vin. Ab. Damages, (i) 4 M &.Sel. 94. 
 
 K.;Com.Dig.Pleader, C. 84; 4 M. & Sel. 100. (k) Vin. Ab. Damages, R. PI. 9, 10, 11 ; 10 
 
 (/) lM.&Sel. 675. ' Co. 117 a, b.- 
 
 (g) 7 T. R. 132. (m) 10 Mod. 253. 
 
 (A) 4 M. & Sel. 94; 1 M. & Sel. 675; 5 (n) See the rule, post, vol. ii. 
 
 (1) A return of property illegally taken, though accepted by the owner, is no Jar to an 
 action, the return and acceptance being available only in mitigation of damages. Hanmer «.- 
 Wilsey, 17 Wend. 91. 
 
 (2) Vide Burger v. Kortwright, 4 Johns. 415. And the amendment has been permitted af- 
 ter judgment, and after writ of error brought, and the excess of the judgment assigned as er- 
 ror. Herbert «. Hardenbergh, 5 Halst. 222. See the JSng'^JsA and American cases cited by 
 Ch. Justice Bevinq. 
 
 t See American Editor's Preface. ,. 
 
419 
 
 OP THE DECLARATION. 
 
 IV. 118 
 FABra, &C. 
 
 7thly. The 
 conclusion. 
 
 when at the suit of husband and wife, executors, administrators, or assign- 
 ees (o), 
 
 . By the above word suit or secta (a sequendo"), was anciently understood 
 the witnesses or followers 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 sec- 
 ta, or followers, has long been antiquated, though the form of it still con- 
 tinues (/?). In actions against attorneys and other officers of the Court, 
 the declaration used to conclude unde petit remedium, instead of bringing 
 [ *420 ] suit (g') ; but an inaccurate conclusion, in *that case was no cause of de- 
 murrer (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 con- 
 cluded 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 pjivi- 
 leged persons the above-mentioned common conclusion " To the damage of 
 the plaintiff of £ — , and thereupon he brings suit, &c." is proper and 
 sufficient (<)• 
 
 Sthiy. The In an action at the suit of an executor or administrator, immediately af- 
 Profert. ter 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 (m) (1) ; but in scire facias the profert might be either 
 in the middle or at the end of the declaration (u) ; 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 admin- 
 istration, which however must be proved on the trial (a;). The omission 
 of the profert when necessary is now aided unless the defendant demur 
 specially for the defect (if'). 
 
 Pledges 
 new to be 
 omitted. 
 
 At the end of the declaration in the King's Bench by bill, it was usual 
 to add the plaintiff's common pledges to prosecute, John Doe and Rich- 
 ard Roe (2). But in proceedings by original, and in the Common Pleas, 
 pledges omitted were supposed to have been found in the first instance be- 
 fore the defendant was summoned, and therefore they Were not to be sta- 
 ted 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. 
 
 (o) See forms, posl, vol. ii. 
 
 (p) 3 Bla. Com, 295; Gilb. C. P. 48; Ste- 
 phen on Pleading, 2d edit. 475. Perhaps in the 
 spirit of conciseness evinced in the modern 
 rules, the concluding words, " and thereupon 
 he brings suit," might have been omitted. 
 These words seem equivalent to " and this the 
 plaintiff is ready to verify." 
 
 (?) Gilb. C. P. 49. 
 
 (r) Andr. 247; Barnes, 3. 
 
 \s) Barnes, 167. 
 
 (0 Beg. Mich. Term, 1 W. 4, reg. 15. 
 
 (u) Bac. Ab. Executor, C; Dougl. 5, in 
 notes. As to the statement of administration, 
 see 1 Rich. C. P. 448. 
 
 (u) Garth. 69. 
 
 (x) Willes, 560. 
 
 (S) 4 & 5 Anne, c. 16, s. 1. 
 
 (z) 3 Bla. Com. 295; Co. Lit. 161 a, n. 4; 
 Com. Dig. Pleader, C. 16. 
 
 (a) Summary on Pleading, 42; Barnes, 
 163. 
 
 (1) In Connecticut it is not common to make profert of letters testamentary. Champlin v. 
 TiUey, 3 Day, 305. And in debt by an administrator upon a judgment recovered by him, be 
 need not declare as administrator. Talmadge v. Chapel, 16 Mass. 71; Crawford v. Whittal, 
 1 Doug. 4, n. (1). 
 
OP SEVERAL OOtNTB IN GENERAL. ' 420 
 
 pledges were not at any time necessary (&) ; and as they have long ceased ". us 
 to be real (c), the statement of theih had long been considered to be un- '^^'^' *"' 
 necessary, and the omission could not be taken advantage of even by spe- ^^of^;t''and 
 cial demurrer (1), because cessante ratione, cessat et ipsa lex (^d) ; and piedgM.°^° 
 the recent Reg. Gen. Mich. T. 3 W. 4, reg. 15, *expressly prohibits the r #421 "i 
 addition of p^e^es in any declaration in a ^ersowaZ action. 
 
 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- '^^^^ *"^' 
 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 (/). 
 
 (6) 8 Co. 61; Cro. Car. 161; Co. Lit. 133 a; as cause of demurrer, thereby admitting the 
 
 Sir W. Jones, 177. omission to be then an existing objection : and 
 
 (c) 3 Ela. Com. 295; Co. Lit. 161 a, note since that statute leave has been given to 
 4; Fortes. 330; 1 Cromp. Intr. 48. amend, see 1 Wils. 226; 2 Wils. 142; Rep. 
 
 (d) 3.T. R. 167, 158; Barnes, 163; 2 Hen. temp. Hard. 315; Fortesc. 330; Barnes, 163; 
 Bla. 161; Summary on Pleading, 43. And Palm. 18. 
 
 yet it was enacted by the statute 4 Ann, c. 16, (e) See an instance. Darling v. Qurney, 2 
 
 a. 1, that no advantage shall be taken of the Or. & M. 226. 
 
 omission of pledges unless assigned specially (/) See Index, " Defects.'' 
 
 (1) Ace. Baker V. Phillips, 4 Johns, 100. 
 
[ *422 ] 
 
 CHAPTER V. 
 
 OF THE CLAIM OF CONUSANCE, APPEARANCE AND DE- 
 FENCE, OYER, AND IMPARLANCES. 
 
 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 secowftJ, viz., the statement in pleadingof any appearance and defence, 
 has been almost entirely altered by the Reg. G-en. Hil. T. 4 W. 4; and 
 the fourth, relating to imparlances has as respects personal actions com- 
 menced 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 or I. CLAIM OP CONUSANCE. 
 
 OONUSAKCE. 
 
 The claim of Cormsance 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 (6). 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 par- 
 ty 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 consid- 
 eration of this claim might on first view appear to be foreign to a treat- 
 ise of this nature ; but as it was frequently made at the instigation of the 
 r *423 1 *<iefendant,' and affects the pleadings, it is proper to be concisely in- 
 quired into. This claim, when made against the jurisdiction of the Courts 
 of Westminster, has not been encouraged, and therefore the greatest ac- 
 curacy must be observed in the time and manner of making it (/). It 
 may be considered with reference, 1st, To the several sorts of inferior ju- 
 
 (a) As to the conusance in general, see (6) 2 Wils. 409; see the precedents in 
 
 Gilb. C. P. 192, &o.! 1 Sellon, c. vii.; Tidd, East. Ent. 128; Willes, 283; 2 Wils. 410; 11 
 
 9th ed. 631; Vin. Ab. Consuanoe; Com. Dig. . East, 513; 12 Id. 12. 
 
 Courts, P.; Bae. Ab. Courts, D. 8; 3 Bla. (c) Fortseo. 157; 5 Vin. Ab. 588, 589. S. C. 
 
 Com. 298. As it is stated that the claim of {d) Id.; 5 Vin. Ab. Conusance, 688, 598, 
 
 consuanoe should Toe ma.de before defence, see 596,600; 12 Mod. 666. 
 
 &■ Bla. Com. 298, I have considered the na- (c) 2 Wils. 410; 6 Vin. Ab. 599. 
 
 ture of B uch claim anterior to defence and im- (/) See the reason, 2 Wib. 108, 109; 
 
 parlance, oyer, and pleas to the jurisdiction Willes, 287, 288. 
 and in al>atement. 
 
OP THE CLAIM OP CONUSANCE. 423 
 
 risdiction ; Idlif, To the actions in which conusance may be claimed ; i- ciAtM op 
 Mly, To the time and mannerof claiming it; and Uhly, To the proceed- ™''"^^''™' 
 ings thereon. 
 
 The privilege of claiming conusance is confined to Courts of record, ex- ^^t. What 
 cept in the case of ancient demesne (^). According to the various deci- oi'"i'^'i™''^ 
 sions collected in Viner's Abridgment (A), there are three sorts of inferior 
 jurisdictions. T]\q first As by grant ienere placita, which is of the lowest 
 description, and is merely a concurrent jurisdiction, and can neither be 
 claimed nor pleaded, and where priority of suit gives one court the prefer- 
 ence (i). The second is by grant habere cognitionem placitorum and gives 
 a general conusance of pleas, and this must be limited as to place, and be- 
 ing intended for the benefit of the lord, may be claimed by him, though it 
 cannot be pleaded by the defendant to the jurisdiction. The third is by 
 grant habere cognitionem placitorum, with exclusive words, as where the 
 king grants to a city that the inhabitants shall be sued within the city, and 
 Aot elsewhere. This may follow the person, and need not be confined to 
 any place, and being an exempt jurisdiction may be either claimed by the 
 lord or pleaded by the defendant to the jurisdiction ; but even in the latter 
 case the proceedings in the superior Courts must be objected to in the first 
 instance by claim conusance, or plea to the jurisdiction (/c). Hence it is 
 a general rule that where the defendant is at liberty to plead to the juris- 
 diction of the Court, the lord of the franchise may claim conusance, but 
 not vice versa (I). Where two persons claim conusance, it is to be grant- 
 ed to him who first demanded it, and the right of the parties claiming 
 conusance must be tried in another action between them (m). The prin- 
 cipal modern instances of conusance having been claimed and allowed, 
 have been on behalf of the Universities of Oxford and Cambridge (n). 
 
 *The power of claiming conusance is restricted to local actions (o) ; ex- [ *424 J 
 cept where' the defendant is a member of the University of Oxford or2dly. la 
 Cambridge (p). It is also confined to such actions as were in esse at the ^^^^ ^' 
 time of the grant (9) ; and does not extend to those created since by act 
 of parliament, except where a common law action is given against a per- 
 son by another name as debt against an administrator (r). Neither will 
 this privilege be allowed where the Court claiming conusance cannot give 
 remedy (5), and where there would consequently be a failure of justice (<); 
 as in replevin, because if the plaintiff be nonsuited, a second deliverance 
 should be granted, which the franchise cannot issue (m) ; nor in ,quare im- 
 pedit, because the inferior Court cannot send a writ to the bishop (a;) ; 
 nor in waste, or where the lord is a party and the plea is to be holden be- 
 
 ((/) 2 Gilb. C. P. 191, 192; 2 Inst. 140; (m) 5 Vin. Ab. 599. 
 
 Wales, 239; 5 East, 284. (n) Thornton v. Ford, 15 East, 634; Wil- 
 
 (A) Tit. Conusance, vol. v. 568; see also lams v. Brickenden, 11 East, 543; Perrin v. 
 
 Com. Dig. Courts, P.; Bao. Ab. Courts, D.; West, 1 Har, & WoU. 401, for Oxford; and 
 
 Eortese. l56; Tidd. 9th ed. 631. Brown v.. Renourd, 12 East, 12, for Cam- 
 
 (t) Id.; 10 Mod. 126; Hardr, 509; Palm. AHrf^c, and see other eases, Harrison's Index, 
 
 455; 12 Mod. 643. ' tit. University, III. 
 
 (fr) Id.; Andr. 198; in some cases the ju- <o) 4 Inst. 213; I Sid. 103. 
 
 risdiction of the Courts at Westminster is (p) Gilb. C. P. 193; Bac. Ab. 102; 11 
 
 expressly taken away by different statutes. East, 543. He must be a resident member, 2 
 
 ■which create Courts of Requests for the re- Wils. 810. 
 
 oovery of small debts, and in such cases the (9) 14 Hen. 4, 20, B. 
 
 objection may be pleaded in bar, or given in (r) Id.; 22 Edw. 4, 22. 
 
 evidence under the general issue, &c. 1 (s) 2 Ventr. 863. 
 
 East, 352; 6 Id. 588; See Tidd, 9th ed. 954 (t) Id.; Hardr. 507. 
 
 to 962. (u) 2 Inst. 140. 
 
 (/) Gilb. C. P. (») Bao. Ab. Courts, D. 
 
424 
 
 OP THE CLAIM 
 
 I. CLAIM OF fore himself (.y) ; or where the defendant is a stranger who hath nothing 
 ooNDSAMCE. -^yj^^jjijj j.]^g frauchise (2) ; or where the plaintiff is a privileged person, as 
 an attorney or officer of the court (a). It also seems that the Court can- 
 not grant conusance in part (6) ; though upon a plea in abatement the 
 writ may abate as to a part (c). Conusance may, however, be claimed 
 where the defendant is in the actual custody of the marshal {d). 
 Sdiy.The With respoct to the time when conusance should be claimed, it should 
 cialmingitf ^^ ^^^^^ *^^ defendant has appeared, because till then there is no cause in 
 Court, and the defendant might counterplead the conusance (e). It is 
 •said that it should be before full defence (/), and according to the entries, 
 it is to be made before any defence, immediately after the statement of 
 the defendant's appearance (g-). It is an established rule of law, " that 
 it must be claimed in the iirst instance, or at the first day," (A). and con- 
 sequently it should be made before imparlance (i) : though in general when 
 a declaratioa has been delivered in vacation as of the preceding term the 
 [ *425 ] claim of conusance may be *entered on the first day of the following term 
 as of the preceding term (/e). "Where the writ discloses the particulars 
 of the causes of action, it appears to have been considered as legal notice 
 to the lord, &c. of the invasion of his jurisdiction, so as to make it in- 
 cumbent on him to claim conusance on the very first day the defendant 
 hath in Court, even upon the return day of the writ ; but when the writ 
 does not disclose the precise cause of action, then it is sufi&cielit to make 
 the claim on the first day given upon the declaration (/). 
 The form In point oi form (m) conusance may be claimed by the lord of the fran- 
 ■*f'^i"m* chise, or by his bailiff or attorney (n). It may be claimed by the Vice- 
 &(.. ' chancellor of Oxford University, the Chancellor being dead, &c. (o). If 
 it be claimed by attorney, the warrant of attorney must be produced in 
 Court and filed (p"). The g'rant of conusance must also be produced (9), 
 or an exemplification of it under the great seal (r), and if the grant was 
 before time of memory, an allowance must be shown in the King's Bench^ 
 or before justice in eyre, or confirmation by patent (s), and it cannot be 
 claimed by prescription (<). Upon a claim made by either of the Univer- 
 sities of Oxford or Cambridge («), there must, in addition to th^ grant, be 
 an exemplification of the private statute confirming it (x), together with an 
 
 (S) 8Hen. 6, 18to 21; Hob. 87; see the (i) Id. ibid.; 2 Wilg. 411; Willes, 233; 3 
 
 singular argument, 3 Bl. Com. 299, n. d. Bla. Com. 298; 10 Mod. 127; Forteso. 157. 
 
 («) 1 Uol. Ab. 493, pi. 16, 1, 48; 22 Ass. (k) 2 Wils. 411, 412; 12 East, 18. 
 
 83. (I) 5 Burr. 2823; 2 Wils. 413; 10 Mod. 
 
 (a) Willes, 233; 3 Leon. 149; Lit. Rep. 128. 
 
 304; Barnes, 346; 6 Vin. Ab. Conusance, 590, (m) Com. Dig. Courts, p. 3; Rast. Ent. 
 
 S. C; id. 562, ace; Bendl. 283, contra; 128; see the form, 11 East, 543; 12 Id. 12. 
 
 nor where the defendant is an attorney, see 5 (n) Bro. Ab. Conusance, 50; 12 Mod. 644, 
 
 Vin. Ab. 572, 1 Rol. Ab. 489, ace.,- SViu.Ab. 666; see the entry, Rast. Ent. 128; Willes, 
 
 594, contra. Not claimable in the Court of 234. 
 
 Exchequer, Hardr. 188 ; Tidd, 9th ed. 81, 82. (o) 11 East, 548-, 547, note. 
 
 (4) 5 Vin. Ab. 597; 1 Rol. 495. (p) See the form, Willes,' 283, 234; Palm. 
 
 (c) 2 Saund. 209 e, 215, id. notice. 456; 1 «id. 103; 1 Lev. 89; 2 Wils. 406. 
 
 {d) 1 Salk. 2; Gilb. C. P. 195; Bro. Ab. (g) 12 Mod. 944; f Bla. Rep. 454. 
 
 Conusanoe, 50. (i) 5 Bur. 2820. 
 
 (0 Gilb. C. P. 196 ; Comb. 319 ;• 12 East, (s) Keilw. 189, 190; 1 Sid. 103; 1 Salk. 
 
 2. 183; 1 Ld. Raym. 427, 428, 475, S. C. Gilb. 
 
 (/) 3 Bla. Com. 298; but see 5 Vin. Ab. C. P. 195; but see Bro. Ab. Conusanoe, 51. 
 
 597; 1 Rol. Ab. 495. (<) Com. Dig. Courts, p. 3. 
 
 (?) Rast. Ent. 128; 2 Wils. 410. («) 10 Mod. 126; 1 Bla. Rep. 464; 12 
 
 (A) 5 Burr. 2823; Hep temp. Hardw. 241; East, 12. 
 
 2 Wils. 411; Willes, 283. (a) 13 Eliz. c. 29; 2 Wils. 412.. 
 
OP C6NUSANCE. 425 
 
 affidavit of the defendant's residence within the local jurisdiction (y'). i- oi'*™ of 
 The claim of conusance is usually supported , by affidavits verifying t^g "osusanob. 
 necessary facts (2:). The claim itself must be entered upon a roll (a). It 
 being a demand of something quod sibi debetur, it must be perfectly en- 
 tered upon record, and must state everything that is to take away the 
 general jurisdiction of the superior Court, and i/ie whole ought to be set 
 forth with alt the proceedings in the cause in the superior Court till the 
 instant of making the claim, and after stating the proceedings the entry 
 runs thus : "And the said defendant by E." F. his attorney comes," (^but the 
 defendant says no more, nor makes any defence, and then the entry pro- 
 ceeds as follows ;) " and hereupon comes chancellor of the Univer- 
 sity of Oxford, by G-. H. his attorney, to demand, claim, *prosecute, and [ *426 ] 
 defend his liberties and privileges thereof, that is to say, to have the con- 
 usance of the plea aforesaid, because he saith," &c. (^setting out with great 
 precision all the circumstances on which the claim is founded, and conclud- 
 ing thus ;) " and the said chancellor demand his liberties and privileges 
 aforesaid, according to the form and effect of the letters patent aforesaid, 
 and the confirmation aforesaid in this plea, between the parties aforesaid, 
 here in the Court of our said lord the king now depending, to be allowed 
 to him as heretofore hath been allov)ed" (6) though the latter words are 
 not necessary where the franchise is given by act of parliament (c). 
 
 The claim of conusance, if sufficient in form or substance, may be de- 4thly. The 
 murred to, or the facts therein alleged may be traversed by the plaintiff (rf). P^oeed- 
 If the claim be disallowed on demurrer, the judgment, after the usual en- Jnf* *^*^ 
 try of curia adversari vult, and giving day to hear judgment, as well to 
 the plaintiff and person claiming conusance as to the defendant, is, " that 
 the matter aforesaid, by the party claiming conusance in manner and form 
 aforesaid alleged, is not sufficient in law, therefore it is considered that 
 the said, &c. (the person claiming conusance) have not his aforesaid lib- 
 erty in his said plea mentioned, and it is commanded by the said Court, 
 as well to the said, &c. (the person claiming conusance) as to the said 
 defendant, that to the writ and counts mentioned, the said defendant do 
 answer, <fec. and thereupon the said defendant defends the wrong and in- 
 jury, when, &c. and prays leave to imparl," &c., and the pleadings pro- 
 ceed as usual (e). 
 
 If the claim be allowed, a day is given upon the roll for the lord of the 
 franchise to hold his court, and the parties are commanded to be there on 
 that day (/). But the record still remains in the Court above, and a 
 transcript only is sent down to the court below (g'),in order that if justice 
 be not done there, as if the defendant be a stranger, and has nothing with- 
 in the franchise, by which he can be summoned, or if the judge refuse to 
 do justice, the plaintiff may have a re-summons upon the record in the 
 Court above (A), the cause assigned in which re-summons may be traversed 
 
 (y) 1 Barn. K. B. 49, 65; 2 Stra. 810; 2 (c) Id. 1 
 
 Wils. 311; 1 Bla. E. 454; 5 Burr. 2820; 12 (d) 2 Wils. 410; Comb. 319; East. Ent. 
 
 Bast, 12. But in 16 East, 634, an affidavit 129. 
 
 of the residence of a common Serjeant, called (e) Bast. Ent. 128 b. 
 
 marshal of the University, having local du- (/) Id. 129; 2 Wils. 411: 2 Ld. Eayiii. 
 
 ties to perform, was dispensed with. 836, 837; 12 Mod. 644; 3 Salk. 79, S. C. 
 
 (z) 12 East, 12. {g) Id.: Jenk. 81; 6 Vin. Ab.599. 
 
 (a) Comb. 319; 1 Barn. K. B. 65; 2 Stra. (ft) 2 Wils. 411; 12 Mod. 644; Hardr.507. 
 810. ButseeSVin. Ab. Conusance, 689; 10 Mod. 
 
 (b) Per Wilmot, C. J., 2 Wils. 409, 410; 127. 
 East. 128; Willes, 234; 12 Enst, 12. 
 
 Vol. I. 57 
 
•427 
 
 OP THE APPEARANCE AND DEFENCE. 
 
 I. CLAIM OB by the party who originally claimed conusance, and if found for him the 
 
 ooNmANOB. (jg^gg ^jij |jg remanded, but if found against him, the parties go on in 
 
 the superior Court from the period or stage in which the cause was at the 
 
 allowance of the claim, just as if such claim had never been allowed (t). 
 
 ■*And if a re-summons issue upon failure of right in a franchise the lord of 
 
 the franchise shall never afterwards have conusance of that plea (A). 
 
 II. OP APPEARANCE AND DEFENCE, AND FORMS OF 
 STATING THEM. 
 
 II. Of AP- Before we inquire into the qualities and parts of the various pleas' in 
 AND^DB-^ personal actions, it is advisable to consider the statement of the defend- 
 TENOE AND aut's Appeavafice ; of his Defence ; and of Imparlances ; which, when 
 roBMs or tbey occur in pleading, usually precede the statement of the subject-mat- 
 ter of the defence. The language of the plea and of the entry on the record 
 of these allegations used until recently^ in all cases to be thus : "And 
 the said C. D. (the defendant by E. F. his attorney, comes and defends 
 the vjrong {or in trespass, force') and injury, when, &c. and craves oyer 
 of the said writing obligatory, and it is read to him, &c., he also craves 
 oyer of the condition of the said writing obligatory, and it is read to him 
 in these words: The condition, &c., {setting out the condition verbatim'). 
 Which being read and heard, the said C. D. prays leave to imparl to the 
 
 said declaration until next after and it is granted to him, and 
 
 the same day is given to the said A. B. {the plaintiff) here, &c. At 
 
 ■, at Westminster aforesaid, 
 
 BTATiira 
 
 THEM. 
 
 The old 
 forms and 
 practice. 
 
 which day, to wit, on^ next after - 
 
 come as well the said A. B, as the said CD. by their respective attor- 
 nies aforesaid; and the said C. D. saith that the said A. B. ought not to 
 have or maintain his aforesaid action thereof against him, because he saith 
 that, &c. {stating the ground of defence)" {I). 
 
 The above ^^venit," was the statement on record of the defendant's 
 appearamce in Court, and was said to be necessary to make him a party to 
 the suit, because dicit without venit might be ore tenus {m). It has how- 
 ever been decided, that the word venit was no part oithe plea, so that if 
 defence were made without it, it would be good, for the defendant's mak- 
 ing defence shows him to be in Court, and makes him a party to the plea, 
 particularly where he appears to be in custodia (w). When the defend- 
 ant pleaded in a different name to that in the writ, whether in abatement 
 or in bar the statement of his appearance must not have been, "and the 
 said C. D. comes, &c." but should be " and C. D. (the real name) 
 against whom the said A. B. hath exhibited his said bill by the name of 
 
 E. D. by his attorney comes and defends," &c. (o). In general the 
 
 [ '428 ] appearance might be *stated to have been in person or by attorney, ac- 
 
 (i) 2 Wils. 411; 6 Vin. Ab. 3, 4. 
 
 (fr) Jenk. 34; 5 Vin. Ab. 676, 588. 
 
 (l) See the forms, 8 Bla. Com. Appendix, 
 No. III. ; post, vol. iii. 
 
 (m) Skin. 582; Gilb. C. P. 186; Bao. Ab. 
 Pleas, D.; Com. Dig. Abatement, I. 16, Lutw. 
 
 8, 9; Co. Lit. 127 b. Stephen, 2d edit. 29 to 
 86, as to appearance. 
 
 (n) Salk. 544; Skin.582; Com . Dig. Abate- 
 ment, I. 16; Stephen, 2d edit. 480. 
 
 (0) 5 T. R. 487; Willes, 51, n,o.; 2Saund. 
 509 a, note 1 ; 5 Taunt. 653. 
 
 t See American Editor's Preface. 
 
OP THE APPEARANCE ANP DEPiSNCE. 
 
 428 
 
 cording to the fact (p), but in an action against a feme covert sted alone, h-appsak- 
 it was essential to allege that she had appeared in person Qq) ; and an infant j,j,j,b.„oij. 
 must always have pleaded by, guardian (1), and not by attorney ovprochein 
 ami (r) (2) ; and this though he be sued with others in a representative 
 character as administrator (s). Nor could common bail be filed for an in- 
 fant under the statute, even when he was sued jointly with other defend- 
 ants (<). And in pleas to the jurisdiction, the appearance must be stated 
 to have been in person (u). And though several attornies in partnership 
 may be retained by the defendant, ho can only plead by one, and not in 
 the name of the firm (v), and therefore a plea should be in the name of 
 that one attorney only who appeared (x). A defendant may plead in per- 
 son to an information by the crown (j*) (3). 
 
 After the statement of the appearance follows that of the Defence, dbpbhcb. 
 which has been defined to be the denial of the truth or validity of the 
 complaint and ,does not merely signify 2i justification. It is a general 
 assertion that the plaintiff has no ground of action, and which assertion is 
 afterwards extended and maintained in the body of the plea (z). This 
 was so essential in pleading, that formerly if no defence were stated in the 
 commencement of the plea, though the plea were in other respects suffi- 
 cient, judgment was given against the defendant (a) In scire facias, how- 
 ever, no defence used to be stated (6) ; and it was necessary in a plea 
 of ancient demesne (c), or in a plea to the jurisdiction of an inferior Court 
 having no jurisdiction of the matter, though it was otherwise when the plea 
 related rather to the person than to the subject-matter of the action {d), 
 Where, however, an attorney of the Common Pleas was sued in the King's 
 Bench, and pleaded his privilege without any commencement of defence, 
 
 (p) Tidd, 9th edit. 92, 93. Appearance (z) 3 Bla. Com. 296; Co. Lit. 127 b; 
 
 by lunatics, &o. Id.; 3 Taunt. 261. Yelv. 210. This denial is mere matter of 
 
 (q) 2 Saund. 209, b, note. form, for it is used, although the plea in the 
 
 (r) 2 Saund. 117 f, note 1; id. 212 a, n. 4, body of it, so far from denying the matters 
 
 5. alleged in the declaration, confesses and 
 
 (s) Stra. 784; 1 Moore, 250. The infant avoids them. See Stephen, 2d edit. 480. 
 
 defendant may avail himself of the objection The word "defends" in this place means de- 
 
 on writ of error, 2 Saund. 212 a, note; Cro. nies the supposed turon^' or in/uri/. As to de- 
 
 Jao. 289; but the pZaintj^ cannot, 5 B. & Aid. fence in general, see the same references, and 
 
 418. Bao. Ab. Pleas, D. and 8 T. K. 631 ; Steph. 
 
 (0 Tidd, 9th edit. 99. 2d ed. 478. 
 
 \u) 2 Saund. 209 b, note; but see 2 /d. 2b, (a) Co. Lit. 127 b; 3 Lev. 240; Ba«. Abj 
 
 n. (i). Pleas, D.; Willes, 41. But see Skin. 582. 
 
 (k) See 4 East, 135, per Lord EUenbor- See Steph. 2d edit. 482, 483. 
 
 ongh. (d) 3 Lev. 182. 
 
 (I) 2 NewBep. 509. (c) Id.; Ld. Raym. 117. 
 
 (y) 1 Tyr. 351. . (d) Bao. Ab. Pleas, D. 
 
 (1) Vide Mockey v. Grey, 2 Johns. 192; Cook v. Totton, 6 Dana, 108; Smith v. Bradley 6 
 Smedes & Marsh. 485. And if an infant defend by attorney, he may bring a writ of error 
 coram DoAis to reverse the judgment. Dewit ». Post, 11 Johns. 460. See Moore j>. M'Ewpn h 
 Serg. & Rawle, 373; Silver v. Shelbaok, 1 Ball. 165. 
 
 (2) A person non compos mentis, not an idiot from nativity, may appear by attorney and 
 the court will, on motion, appoint an attorney for him. Faulkner v. M'Clure, 18 Johns. 135 
 A plea of non compos, by attorney, will be set aside, and a guardian, adlitem appointed who 
 may plead anew. Mitohel v. Kingman, 5 Pick. 431. ' 
 
 (8) If a party have not legal notice of the suit,hi3 appearances for the purpose of taking the es 
 ception, by plea in abatement, or otherwise, is not a waiver of the groand of exception Tinfflev" 
 V. Bateman, 10 Mass. 343; Gardner v. Parker, 12 Mass. 36; Bernard v. Brewer 2 Wash 76 • 
 Wheeler v. Lampman, 14 Johns; 481; Malcolm v. Rogers, 1 Cowen, 1.. An appearance bv at' 
 torney cures a defect in the service of process, Anom 1 Hayw. 405; Knox v Summers 3 
 
428a 
 
 OP OYiSR. 
 
 n. APPBAK- it ^f|■as held sufficient (e) . Defence was of two descriptions, first, half de- 
 DEFEiraE° fence, which was as follows, " venit et defendit vim et injuriam et dicit, 
 &c." or secondly, /wZZ defence, " venit et defendit vim et injuriam quan- 
 do, &c. "(meaning "quando et ubi curia considetavit," or when and where 
 [*429 J it shall behove *him), " et damria et quicquid quod ipse defendere debet et 
 dicit" &c. (/). It was a maxitn that the words " quando, &c." ought 
 not to be added when only half defence was to be made, and that after 
 the words ^'■venit et defendit vim et injuriam" the subject-matter of the 
 plea should immediately be stated (g-). It had however of late become 
 the practice in all cases whether half or full defence were intended, to 
 
 state it as follows : " and the said C. D. by his attorney, comes and 
 
 defends the wrong {or in trespass, '■force,') and injury, when Sfc. and 
 saith, that," &c. which would be considered as half defence in cases where 
 such a defence should be made, but as full defence when the latter was 
 necessary (K). 1^ full defence were made expressly by the words, "when 
 and where it shall behove him," and " the damages and whatever else he 
 ought to defend," the defendant would be precluded to the jurisdiction or 
 in abatement, for by defending when and where it shall behove him, the 
 defendant acknowledges the jurisdiction of the Court, and by defending 
 the damages he waives all exceptions to the persons of the plaintiff (t). 
 Want of defence being only matter of form, the omission was aided on a 
 general demurrer (A). 
 
 The recent 
 Pleading 
 Bale Uil. 
 T. 4. W. 4, 
 r. 10, and 
 present 
 forms and 
 practice. 
 
 The Eeg. Gen. Hil. Term, 4 W. 4, reg. 10, ordered that no formal 
 defence shall be required in a plea, and it shall be commenced as follows : 
 
 — " The said defendant by his attorney (or ' in person,' &c.) says 
 
 that, &c., so that the venit or comes is to be omitted. And it has been 
 observed that by this clause the distinction between v^hole defence and half 
 defence is abolished (Z), although formerly, and indeed in modern times, 
 that distinction was much insisted upon. It has been observed that al- 
 though this recent pleading rule orders that every plea shall commence in 
 the prescribed form, still that a slight variation, or the adoption of the z,q- 
 tioa full formal defence, would not be any ground of demurrer, but at 
 most would be the ground of summons or motion to strike out th6 part ob- 
 jected to as an unnecessary prolixity with costs (m). 
 
 m. OYBB, Oyer is a prayer or petition recited or entered in pleading (n), that 
 W- the party may hear read to him the deed, &c. stated in the 
 
 (e) 1 Salk. 30; Bao. Ab. Pleas, D, 
 
 (/) Co. Lit. 127 b, Bao. Ab. Plea, D.; 
 Rast. Ent. 652;WiIles, 41; Gilb. C. P. 188; 
 8 T. R. 633. See the forms, 3 Bla. Com. Ap- 
 pendix, No. Ill; post, vol. iii. 
 
 (g) Gilb. C. P. 188; 8 T. R. 632; S B. &. 
 P. 9, n. a. 
 
 (A) 8 T. R. 633; Willes, 41; 3 B. & P. 9; 
 2 SauDd. 209 b, n. 1; Stephen on Pleading, 
 2ded. 481. 
 
 (0 2Saund. 209 c; 3 Bl. Com. 297, 293; 
 Co. Lit. 127 b; Bao. Ab. Pleas, D. 
 
 (fc) 3 Salic. 271.. 
 
 (I) Bosanquet on Rules of Pleading, 87. 
 It has been considered that this rule extends 
 
 to pleas in abatement as well as pleas in bar 
 and all other pleas. J Chitty, Jan., Pleas in 
 Abatement, 20, note (rf). 
 
 (m) Id. 37, note 33. 
 
 (m) As to demanding oyer and form of de- 
 mand, see 3 Chitty's Gen. Prao. 618. 
 
 (7i) See the form, ante, 427. At the pres- 
 ent day oyer is demanded before the party 
 pleada, by a note in writing addressed to the 
 attorney of the party on the other side ; and 
 it is given by providing the party requiring 
 it with a copy of the deed, &c. at his expense, 
 showing him the original if desired. T idd, 9th 
 ed. 686; Stephen, 6th ed. 93, 94. 
 
OF OYER; 430 
 
 ings of the opposite party, and -which deed is by intendment of law in ^^- °'^^- 
 Court when it is pleaded with a profert (o) (1). The statement of the 
 prayer of oyer, and that the deed has been read to the defendant, (setting 
 it out) used to follow the defence, and precede the entry of the impar- 
 lance, if any (p). But now it is to be stated immediately after the state- 
 ment of the appearance. 
 
 It is a principle of pleading, that a party relying upon a deed, &o. 
 either as the foundation of a cause of action, or as a ground of defence 
 or answer to the pleading of his opponent, shall make a, profert of the in- 
 strument, that is, produce it (nominally) in Court (9). But in alleging 
 the deed the plaintiff need not in his pleading show more of it than 
 answers his own immediate purpose ; and even that' part which he states 
 may be set forth according to its legal purport Or in substance. The ob- 
 taining oyer therefore becomes frequently important, especially on the 
 part of the defendant, not only to ascertain the authenticity of the instru- 
 ment, but also for the purpose of rendering available other parts of the 
 deed which may restrict or explain that portion of the instrument which 
 is shown in the adverse pleading. It is demurrable by either party, whe- 
 ther plaintiff or defendant, and in every action, whether real, personal, or 
 mixed; 
 
 If the plaintiff in his declaration, or the defendant in his plea, have In what 
 necessarily made a. profert of any deed, probate, letters of administration ""'^f^ui 
 or other instrument under seal,theotherpartyTOcr2'pray oyer, which cannot 
 in sucb case by refused by the Court (r) (2). If the deed be lost or des- 
 stroyed, the party, instead of making a profert thereof, should state the 
 excuse for omitting it ; and then the opponent, though he may traverse 
 the truth of the excuse alleged, will be precluded from praying oyer (s) 
 (3). But if a profert be unnecessarily made, the defendant must plead 
 without oyer (<) ; thoughif it becravedand given, hehasaright to makeuse 
 of it(M). The defendant cannot *crave oyer except where profert has been [ *431 J^ 
 made (4). Oyer was formerly allowed of the original writ, in order to 
 demur or plea in abatement for any insufficiency or variance 'between the 
 writ and declaration; but that practice was altered by rule of court, and if 
 the defendant demand oyer of the writ, the plaintiff may proceed as if no 
 such demand had been made {x){5). Oyerisnot demandableof arecord(y) 
 
 (0) 3 Bla. Com. 299; 3 Salk. 119; 12 Mod. (r) 2 Stra. 1186; 3 T. E. 151; Tidd, 9th ed. 
 698; Baa. Ab. Pleas, I. 12, 13; 1 Sid. 308. 587. 
 
 ace; Lutw. 1644, contra. The praotiee rela- (s) Anle, 365, 410. 
 
 tive to the demand of oyer has been fully oonsid- (2) 2 Salk, 497; 1 T. K. 149, 150; on^e, 
 
 ered in the works referred to in this note that 366. 
 
 it will be sufficient here to confine our atten- («) Doug. 476; 1 Saund. 317, note 2; 9 a, 
 
 tion to such points as relate to pleading, note (d). 
 
 Tidd, 9th ed. 536; 1 Sel. 261, 285 to 291; 1 (x) Tidd, 9th ed. 588. 
 
 Saund. 9, and notes; Com. Dig. Pleader, P.; (y) 1 Ld. Raym. 250, 347; Doug. 476; IT. 
 
 Steph. 2d ed. 92. K. 149. But where a judgment or record of 
 
 (p) jjnic, 427. But see instances of oyer the same Court is pleaded, the defendant 
 
 after imparlance, 1 Saund. 3, 289. must give a note in writing of the term and 
 
 (j) See as to the profert, ante, 365 and number roll of the record, Tidd, 9th ed. 587; 
 
 notes. and see Reg Gen. Hih T. 4 W. 4, reg. 8. 
 
 (1) Where oyer of a deed pleaded with profert, is not prayed, no part of the deed will be no- 
 ticed by the Court, but that which the plaintiff has declared on ; Bender v. Fromberger, 4 Dall, 
 131; Wristor v. Lacj, 7 J. J. Marsh. 219; and the writing, must be taken as set forth in the 
 declaration. Pollard v. Zoder, 2 A. K. Marsh. 264. 
 
 (2) Brown v. Jones, 10 Gill & Johns. 334. 
 
 (3) See Paddock v. Higgins, 2 Root, 482; Respublica v. Coates, 1 Teates, 2; Powers v. Ware, 
 2 Pick. 451. 
 
 (4) Story v. Kimball, 6 Vermont, 541; Settle v. Wilson, 14 Ohio, 267. 
 (6) SeeBennerv. Beed, 8 Pike, 389. 
 
431 OP OYER. 
 
 III. OTBB. (1^ nor of recognizance (2:) ; nor of a private act of parliament (a) ; nor of 
 letters patent, though pleaded with a profert {b) ; nor of a writ of re-sum- 
 mons (c) ; nor of the precept or warrant of a justice of the peace ((/). And 
 oyer cannot be craved of an agreement, a note, or other instrument not un- 
 der seal (e) (2), nor of a demise to a stranger, where the party pleading it 
 was neither party nor privy to it (/ ) . A s it cannot be granted of any deed, 
 &c. which is not presumed to have been brought into Court {g), the de- 
 fendant cannoi, in an action upon a bond conditioned for the performance 
 of covenants in another deed, crave oyer of such deed, but he, and not the 
 plaintiff must show it or the counterpart with a profert or an excuse for 
 the omission ; but it seems the Court will compel the plaintiff to give 
 the defendant a copj^ to enable him to plead, by granting the defendant 
 time to plead until the copy be provided, or the defendant making an af&- 
 davit that he has no copy (A). In scire facias on a judgment on a deed, 
 the defendant cannot demand oyer of the deed, for the scire facias is found- 
 ed not on the deed, but on the judgment ; if, however, oyer be improperly 
 craved and granted, and the deed be stated upon it, the defect in the plea 
 will be aided on a general demurrer (i). 
 
 When it Though a party be entitled to crave oyer yet he is not in general bound 
 
 d'°"''^d'd ^^ *^° ®° ^^)" -^^^ ^^ ^°™® cases it must be craved. Thus, if the defence 
 " be founded upon any objection to the form of the bond, as where a bail 
 bond has been given to the sheriff, but not by his name of office, and the 
 defect do not appear upon the face of the declaration, oyer must be craved, 
 and after setting forth the bond, the defendant may demur (i) (3). And 
 in an action at the suit of an administrator, the defendant should crave oyer 
 and set out the letters of administration, if he wish to avail himself of any 
 
 [ *432 ] variance in *the statement of them in the declaration (»i). The instances 
 in which oyer should be demanded, if the defendant's contract be not truly 
 stated in the declaration, will be hereafter considered (■»). In Pleading 
 payment or performance of the condition of a bond, if the condition be 
 not set out in the declaration, the defendant must set forth the condition 
 
 {«) Poph. 202. {g) Willes, 200. 
 
 (a) Uougl. 476,477; Tidd, 9th ed. 688, but (A) Per Cur. Hilary Term, 21 Geo. 3, K. 
 
 Godb. 186, is con(m. B. Tidd, 9th ed. 586; 1 Saund. 10, note 1, 
 
 (6) IT. R. 149; Archb. 164. and 52. 
 
 (c) 3 Hem 6, 66. (i) 1 Saund. 8 b. 
 
 (d) 21 Hen. 5, 6; Bro. Oyer, 13. (k) 2 Lil. Rep. 221; Arohb. 164, 165.. 
 
 (c) Salk. 215. But the Courts or judges, (l) Ld. Raym. 1135; 2 Saund. 60, n. 3; 
 
 by analogy to the doctrine of oyer, will in 366, n. 1; 2 T. R. 575; Bac. .'ib. Pleas, I. 12. 
 
 most oases order that the party have an in- So in a plea of nonjoinder of a co-obligor, 1 
 
 spection and copy of the instrument, see Tidd, Saund. 291. 
 
 9th ed. 589, Sto. (m) 2 Wils. 413. 
 
 (/ ) 8 Hen. 6, 46. (n) Post, 433. 
 
 (1) Oyer must be craved and had to put a record before the court, but oyer of the officer's 
 return to the process is unnecessary. Commonwealth v. Roby, 12 Pick. 496 ; Guild v. Richard- 
 son, 6 Pick. 364; Slayton v. Chester, 4 Mass. 478. Where a judgment is declared on without a 
 profert, no oyer can be held. Hall v. Williams. 8 Greenl. 434. Oyer must be given of the rec- 
 ord of the Superior Court, in Connecticut, if required. Williams v. Perry, 2 Root, 462. 
 
 In Copp V. Oilman, 2 Blackf. 46, it was held, that in an action on a judgment, profert of 
 the record is unnecessary. 
 
 (2) See ante, 466 and note, and Tuggle v. Adams, 3 A. K. Marsh. 429; Anderson v. Barro, 
 2 J. J. Marsh. 265. 
 
 (3) So, in debt on award,- if it be misstated in the declaration, the defendant cannot take 
 advantage of the error by pleading no awardj but must crave oyer and demur. James v. 
 Walruth, 8 Johns. 410. Ut Semble. Sed quaere; for an award under seal need not be plead- 
 ed with profert, and the insertion of a profert will not entitle to oyer. 
 
OP OYER. 432 
 
 after craving oyer (o) (1). But it is necessary in an action on a bond m. otee. 
 or deed, conditioned for the performance of covenants in awo/Aer deed, 
 for the defendant, in his plea of performance, to show such deed without 
 craving oyer (77). 
 
 Where either the plaintiff or the defendant omits, in pleading a deed, of 
 which a profert is made, to state any part which is material tft the. cause 
 of his opponent, the only way by which the latter can relieve himself is by 
 praying oyer of the deed, and setting it out in hcBC verba '; for he cannot 
 plead that by the said deed "it was further agreed," &c. (g) (2). 
 
 If oyer be denied when it ought to be granted, the party making the Refusing 
 claim should move the court to have the prayer of oyer entered on record, °y^'^- 
 which entry is in the nature of a plea; and the plaintiff may counterplead 
 the right to oyer, or strike out the rest of the pleading following the oyer 
 and demur ; upon which the judgment of the Court is, either that the de- 
 fendant have oyer, or that he answer without it (r). On the latter judg- 
 ment the defendant may bring a writ of error, for to deny oyer when it 
 ought to be granted is error ; but not e converso (s) (3). 
 
 The oyer of a deed that has been altered by a stranger must be of the How given, 
 deed as originally drawn, and must be so set out in the pleading, or the 
 variance will be fatal Q}. If oyer of a bond only be craved, the other 
 party is not bound to give oyer of the condition, unless that be craved also 
 (u) (4). But if there be a condition or other matter endorsed on a deed, 
 and which was endorsed before execution, oyer must be granted of the in- 
 dorsement as well as of the deed {x). And a party craving oyer is en- 
 titled to a copy of the attestation and names of the witnesses (^) (5). _ , .„„ ^ 
 But, as before observed, on oyer of a bond and condition, *the copy of a [ 433 ] 
 deed referred to in the condition need not be furnished {z) (6). 
 
 Oyer having been granted, the defendant has, it seems, at least in the What ad- 
 King's Bench (a), an election whether or not he will sot forth the deed be°taken*o°f 
 
 oyer, and 
 
 (0) Com. Dig. Pleader, 2V. 4; 2 Saund. note. A party properly craving oyer cannot the man- 
 
 409, n 2; 1 /J. 9 b, n. 1. In Lil. Prao. Reg. be compelled to plead until it is given, 2 Stra. ner of 
 
 ' Oyer, it is said that the defendant may plead, 1186; 1 Wils. 16. tatmg ad- 
 
 if he ple.se, without oyer; for he may take (s) 1 Saund. 9 c. n. 1; Tidd, 9th ed. 583; vantage. 
 
 upon himself to remember the bond without Bac. Ab. Pleas, 1. 12. 
 
 hearing it; but see Hutt. Rep. 33; 1 Keb. (i) 1 Marsh. 217. 
 
 513; 1 Saund. 317, note 2; Com. Dig. Plead- (a) 6 Mod. 237; 1 Saund, 9 b, note 1. 
 
 er, 2 W. 33; Vin. Ab. Oyer, D. (.r) Id. Van Rensselaer v. Pouoher, 24 
 
 (i>)See a-nte, 431; 1 Sannd. 10, n. 1; Com. Wendell, 316. 
 
 Digf Pleader, 2 W. 33; 6 Mod. 237. (y) WiUes, 288; 1 Saund. 9 b, note (c). 
 
 (o) 1 Saund. 317, note 2; 1 Stra. 227. («) .a«(e, 431, 432, ,„.„„, ^ 
 
 (,•) 1 Saund. 9 o, note 1; 2 Id. 46 b, n. 7; (a) Stra. 1241 ; 1 Wils. 97; Tidd, 9th ed. 
 
 Tidd, 9th ed. 588; Stephen, 2d ed. 102, 103, 589; Cora. Dig. Pleader, P. 1. 
 
 (1) And the omission is fatal on a writ of error. United States V; Arthur, 5 Cranch, 257. 
 
 (2) Oyer of a deed of which profert is made in the first count of a declaration, does not 
 make it part of the record so as to apply to the other counts. Hughes v. Moore, 7 Cranch, 
 1 Yfi 
 
 (3) State ». Hicks, 2 Blackf. 336; Pendleton v. Bank of Kentucky, 1 Monroe, 171- 
 
 (4) U. States v. Sawyer, 1 Gallis 86, cited post, 435, note. 
 
 (5) Smith V. Alworth, 18 Johns. 445. 
 
 (6) As to the furnishing of copies and when profert of the origmal being made, oyer of the 
 orieinal may be demanded. See Butler v. State, 6 Gill & Johns. 511 ; Carson v. Pearl, 4 J. J. 
 Marsh. 92; Thatcher v. Lyman, 5 Mass. 260; Judge v- Merrill, 6 N. Hamp, 256; Smith v. 
 Alworth, 18 Johns. 445; ante, 366, note, 
 
433 
 
 OF OYER. 
 
 HI. OTEE. jn his plea. In that Court it appears that he may plead without noticing 
 that he has craved oyer or stating the deed ; and if the plaintiff -would 
 avail himself of the deed, he should pray that it be enrolled, and should 
 state it in his replication (6). But it is said that in the CoramoQ Pleas, 
 if the defendant has had oyer, and omit to set it out in his plea,, the plairt- 
 tiff might insert it for him at the head of his plea in making up the is- 
 sue (c^ : The Reg. Gen. Hil. T. 2 W. 4, rag. 44, expressly provides for a 
 case of this nature, and renders the practice uniform. It orders " that if 
 a defendant, after craving oyer of a deed, omit to insert it at the head of 
 his plea, the plaintiff, in maldng up the issue or demurrer book, may, if he 
 think fit, insert it for him ; but the costs of such insertion shall be in the 
 discretion of the taxing officers " (rf). We have before remarked, that 
 if the party craving oyer desire to avail himself in pleading of the condi- 
 tion of a bond, or a part of a deed not shown by the pleading of the other 
 party, he must show the oyer and instrument on the face of his own plead- 
 ing (e). If no occasion of this sort occur, it is important to consider 
 whether or not the deed be truly described by the opponent ; for by set- 
 ting it out on oyer, and then pleading non est factum, an error in such de- 
 scription might bo cured. If the deed be set out on oyer, it becomes par- 
 cel of the record (1), and the Court will adjudge upon it accordingly, 
 though it were not strictly demandable when granted (/). Should the 
 true effect and meaning of the deed be mis-stated in the declaration, the 
 variance is cured and becomes immaterial, if the deed be set out on the 
 plea on oyer, and non est factum be pleaded ; for on that issue the only 
 question at the trial is, whether the deed as set out in the plea was execu- 
 ted by the defendant or not, and the jury are not competent to decide what 
 is the legal effect of the deed. In such case the defendant had better 
 plead non est factum, (§■), without craving oyer ; and then the question 
 would be, whether the deed, as described in the declaration, was execu- 
 ted by the defendant (A). 
 
 r *434 1 *The tenor of the deed, as it appears upon oyer, is considered as forming 
 part of the precedent pleading (2), and, therefore, if the breach laid in 
 the declaration be not supported by the deed, in other words, i^the deed 
 thus set out in the plea be found to contain in itself matter of objection or 
 answer to the plaintiff's case as stated in the declaration, the defendant's 
 course (after setting out the deed on oyer) is to demur, not to make the 
 objection the subject-matter of a plea (i). The defendant may demur af- 
 ter setting out the deed on oyer, if in the declaration any part of the deed 
 which qualifies the contract as shown in the declaration, or which renders 
 
 (6) Jd. W 4B. & C. 741; 7 D. & R. 257, S. C; 
 
 (c) Id.; Barnes, 327; Steph. 2d ed. 96, n. see 11 East, 633; 5 Taunt. 707. Where the 
 (c). declaration was upon a certain writing, it was 
 
 (d) See Jervia's Rules, 54, note (t). held that the defendant, by praying oyer con- 
 
 (e) ^nte, 430. ditiones scripli obligntorii pradicti, admitted 
 (/) 1 Saund. 316, 317; Salk. 119; Doug, it to be a bond. Lord Raym. 1541, Cro. Car. 
 
 476; Tidd. 9thed.589. 209. 
 
 (g) See the late act, 9 Geo. 4, c. 16, for (t) 4 B. &C. 741, 750; 7 D. & R 257, S. 
 
 amending at the trial certain variances in set- C. ; Dougl. 476 ; Steph. 2d ed. 97 ; Tidd, 9th ed. 
 
 ting out written instruments, anU, 319. 589. 
 
 (1) Vide Cooks v. Graham, 3 Cranch, 234. See 2 Har. & Gill. 80. 
 
 (2) Commissioners o. Gaines, Const. Rep. 459. 
 
 Writing proffered is not a part of the record unless oyer is taken. Adams v. Macy, 1 Bibb. 
 828; Gist v. Steele, ib. 571; Palmerw. M'Ginnis, Hardin, 504. 
 
 Oyer of a deed set forth in the first count, does not make that deed part of the record, so as 
 to apply it to other counts in the declaration. Hughes v Moore, 7 Cranoh, 176. 
 
OF OYER. 434 
 
 it dissimilar to that described in the declaration, be omitted or mis-stated i«- oyeb.. 
 by the plaintiff therein (/c). And if it appear at the trial on non est fac- 
 tum that there is a variance between the deed produced and the oyer, it is 
 fatal (/). But the defendant cannot demur on account of a Tariance in an 
 immaterial part between the deed as stated in the declaration, and as set 
 out on oyer (ot). If it be material for the plaintiff in his replication, &c. 
 t6 show the indenture, he may pray an enrollment, and so make it part of 
 his replication (w). 
 
 Before the recent pleading rules, Hil. T. 4 W. 4,f if the oyer were 
 stated, the plea should, in strictness be entitled of the same term as the 
 declaration, for in contemplation of law the deed, unless denied, was in 
 Court only during the term of which it was pleaded, and was afterwards 
 in the custody of the party to whom it belonged, and therefore when that 
 practice prevailed, oyer of such deed ought not in pleading to be stated to 
 have been demanded in a subsequent term, and consequently not after a 
 general impa,rlance (o). But now by that rule a plea setting out a deed 
 on oyer is, like all others to be dated of the very day it is pleaded. But 
 oyer might have been craved after a special imparlance to another day in 
 the same term (jo) ; and there are precedents, where oyer was craved af- 
 ter the statement of imparlance (^)- ; and where the plaintiff declared in 
 vacation before the essoign day of the following term, with analogy to the 
 claim of conusance and pleas in abatement, a plea stating the claim of oyer 
 might have been entitled of the term subsequent to the declaration with a 
 special imparlance, or might have been entitled generally of the preced- 
 ing term (»•). But the recent rules put an end to imparlances, and now 
 require that every plea be entitled on the very day it is pleaded (s). 
 
 *If the defendant assumed to set out the whole of the deed or condition [ •435 ] 
 of a bond on oyer, the whole should be stated with all recitals verbatim et 
 literatim ; and if the defendant do not set forth the whole, or state it un- 
 truly, the plaintiff may sign judgment as for want of plea {t) ; or may by 
 his replication pray that the deed be enrolled, and set it forth, and then it 
 seems may demur, for by craving oyer the defendant undertakes to set out 
 the whole (m), or according to Reg. Gen. Hil. T. 2 W. 4, reg. 44,1 he 
 may insert the deed for the defendant. But in pleading to a bond condi- 
 tioned for the performance of covenants in another deed distinct from that 
 set out on oyer, though the party must state the deed referred to \^ the con- 
 dition truly, or subject his plea to a demurrer, and the practice is to set . , 
 forth the whole deed (x) ; it may perhaps sufiBce to state the substance of 
 the deed and those covenants only which he has engaged to perform, aver- 
 
 (fc) Id.; 2 Saund. 366, n. 1. (r) 2 Wils. 411, 412; 1 T. R. 278; 7 T. R. 
 
 (() 1 Marsh. 214; see ante, 311. 447, note {d); 2 Saund. 2, n. 2. 
 
 (m) 1 B. & C, 858; 2 D. & R. 662, S. C. (s) Beg. Gen. Hil. T. 4 W. reg. 1 and 2. 
 
 (n) 2 Sfcra. 1241; 1 Wils. 97; 1 Saund. 9 (() 1 Saund. 9 b, n. 1; 4 T. R. 370; Slater 
 
 b, n. 1, flcc; Barnes, 327, cOH^ra. v. Home, Tidd, 9th ed. 565; 5 T. R. 662, 
 
 (0) Tidd, 9th ed. 587; Steph. 2d ed. 95; 1 663. 
 
 Saund. 2, note 2; Vin. Ab. Oyer, F.; Bao. (u) Com. Dig. Pleader, P. 1;4 T. R. 871, 
 
 Ab. Pleas, I. 12. See the form, 3 BIk. Com. note (6) ; 1 Saund. 9 b, note 1. But it is laid 
 
 Appendix, No. 3, ace; 2 Ld. Raym. 970, con- down in Tidd, 9th ed. 589, which cites 2 Salk. 
 
 tra. And see the precedents, 1 Saund. 8, 602, that the plaintiflF cannot demur to the 
 
 289. plea for not setting out the whole of the deed 
 
 (p) 12 Mod. 99; 2 Show. 10; Tidd, 9th ed. on oyer. 
 
 587. {x) 1 Saund. 9; 4 East, 344, 345. 
 
 (?) 1 Saund. 8, 289. 
 : _? .-v" 
 
 t See American Editor's Prefeoe, 
 
 Vol. I. 68 
 
436 OP IMPARLANCES. 
 
 m. OYER, ring that the indenture contains no other covenants on his part (y) : or 
 perhaps even on allegation that the indenture contains no negative or dis- 
 junctive covenants, with an averment of general performance, would be 
 suflBcient (z) ; and the plaintiff might pray an enrollment, and set it forth 
 if untruly stated (o). Certainly it would be desirable to promulgate a 
 rule that it shall be sufficient for either party to set out only such parts of 
 deeds or instruments as may be sufficient to sustain any charge or defence 
 without setting forth useless matters. 
 
 When oyer is prayed of a bond and the condition, it is usual in a plea 
 not to set forth the obligatory part of the bond,- but to say, " and it is read 
 to him, &c." and then to pray oyer of the condition, and set forth in hcec 
 verba (1) ; but the bond ought to be entered at large as well as the con- 
 dition,' if the terms of the obligatory part be material to the defence (^). 
 So, if it be material to the plaintiff that the penal part of the bond be set 
 forth, he may in his replication pray that it may be enrolled, and set it 
 forth (c), or under Eeg. G-en. Hil. T. 2 W. 4, reg. 44,t insert the deed in 
 the defendant's plea for him. If no use is intended to be made of the bond 
 there is no need to pray oyer of it at all, or to enter any such prayer, but 
 it is sufficient to pray oyer of the condition only (d) (2) ; for the bond and 
 condition are considered as distinct, the bond being complete without the 
 condition, therefore there may be oyer of one without the other (e). If it 
 
 [ *436 ] appear *to the Court that with reference to the deed as set out on oyer 
 the defendant has pleaded a false plea, the Court will give judgment for 
 the plaintiff upon a demurrer to the plea (/). 
 
 TV. mpAB- IV. IMPARLANCES. 
 
 Theancient The term imparlance or licentia loquendi, in its most general significa- 
 
 andfoms ^^^n, means time given by the Court to either party to answer the pleading 
 
 of. of his opponent, as either to plead, reply, rejoin, &c. and is said to be 
 
 nothing else but the continuance of the cause till a further day (^y). But 
 
 the more common signification of the term was time to plead (A)!- In 
 
 (j) 1 Saund. 317, note 2. imparlances in general. In Doot. Plac. Im- 
 
 (z) 4 East, 340, 344, note (/). parlances, it is thus defined, Hmparlance est 
 
 (a) 1 Saund. 9 b. note 1 ; 317, note 2. quando ipse defendens petit licentium interlo- 
 
 (b) Lord Eayra. 1135; ante, 430, 438. quendi, scilicet, quant le defendant desire le 
 
 (c) Garth. 301,302; 1 Lutw. 680, 686; 1 eour de donor a luy tempi de pleader al suit 
 Saund. 9 b, n. 1. o« action que et commence vers luy'. Before 
 
 (d) Lib. Plac. 209, pi. 220; 1 Saund. 9 b. declaration continuance is by dies dalus price 
 note 1. partium; after declaration and before issue 
 
 (e) 1 Saund. 9 c, n. 1; 290, n. 2. joined by imparlance; niter issue joined, 
 (/) 1 Saund. 9, 817, note 2; 3 Salk. 119. and before verdict, by vice comes non misit 
 Ig) Bac. Ab. Pleas, G. ; see Com. Dig. breve ; and after verdict or demurrer, by 
 
 Pleader, D. and id. ibid.; 1 Sel. Pr. ch. vii. curia advisari vult. 
 
 sect. 8; 2 Saund. 1, note 2; Tidd, 9th ed. (A) 2 Saund. 1, n. 2; 2 Show. 310. Barnes, 
 
 462; Steph. 2d edit. 97; as to the nature of 346. 
 
 (1) A small variance between the oyer of a bond and the declaration, is not regarded; as 
 ■where the words were, "or delay," and in the declaration, "or other delay," the variance was 
 held immaterial. Henry v. Brown, 19 Johns. 49. 
 
 (2) Oyer of a bond does not include oyer of the condition ; nor e converso. If oyer is wanted 
 it should be of each; but the plaintiff may have the whole bond enrolled. U. States v. Sawyer, 
 1 Gallis, 86. 
 
 t See American Editor's Preface. 
 
OF IMPARLANCES. 
 
 486 
 
 making up the issue joined between the parties, and in which all the pro- '^^^"^^*" 
 ceedings are necessarily stated, an entry of an imparlance between the 
 declaration and plea was formerly frequent and sometimes necessary (i) ; 
 but it was not usual in framing a plea or replication to state in imparlance 
 separately, unless some new matter has arisen since the former pleading 
 when it was proper (A;), as a mode of introducing and stating at what time 
 the new matter has arisen (A). 
 
 Imparlances were of three descriptions : 1st, A Common or General 
 Imparlance ; 2dly, A. Special imparlance.; and 3dly, A General Special 
 Imparlance (J). The first was without saving to the defendant any excep- 
 tion against the writ or jurisdiction, and was always to a subsequent 
 *term (m). In making up the issue the entry of such an imparlance might [ *437 ] 
 have been necessary, in order to continue the cause in Court (n) ; but in 
 framing a plea such an entry of imparlance was not necessary un- 
 less the matter of defence had arisen after the declaration. In general, 
 pleas in bar were entitled of the term of which they were pleaded, without 
 reference to the title of the declaration ; and as a plea of tender might 
 have been pleaded as well after as before an imparlance, even such plea 
 might have been entitled of a term subsequent to the declaration, though 
 it was said to be more correct to entitle it of the same term as the declar- 
 ation, in order to avoid the inconsistency of first praying an imparlance 
 and then averring that the defendant has been always ready to pay (o). 
 After the entry of such a general imparlance, the defendant might plead iM 
 bar of the action though not in abatement (jp^, or the jurisdiction of the 
 Court ; and therefore, when by the practice of the Court the defendant 
 was at liberty to plead in abatement in a term subsequent to the declara- 
 tion, (as occurred when the process was returnable on the last returnjof a 
 term, or even before, and the plaintiff had neglected to deliver or file his 
 declaration four days exclusive before the end of the term, or had neglect- 
 ed to declare before the essoign day of that term,) the defendant must 
 have pleaded such plea in abatement either of the same term as the dec- 
 laration, or of the subsequent term with a special imparlance ; and if it 
 were pleaded of the latter without such a special imparlance, the plaintiff 
 might have signed judgment as for want of a plea Qj). But where a bill 
 was filed in Trinity vacation against an attorney, entitled as of Trinity 
 term, and the defendant pleaded in abatement as of Michaelmas term, 
 without an imparlance, the plea was held good (r). 
 
 A Special Imparlance was with a saving of all exceptions to the writ,' 
 bill or count, and after this imparlance the defendant may plead in abate- 
 ment (s), but not to the jurisdiction of the Court unless founded on a, per- 
 sonal privilege, as that of an attorney, <fco. {t'). In cases where the de^ 
 fendant was entitled to a special imparlance, it was in the Common Pleas 
 
 (i) 2 Saund. l,n. 2; 5 Co. 75; Tidd, 9th (m) 6 Mod. 28; 2 Saund. 2 a. 
 
 ed. 720. („) j,nte, 436. 
 
 (fc) See the form in a plea, and in a replica- (o) 2 Saund. 1 , 2, n. 2 ; 1 id. 33, note 2 ; 
 
 Hon, vol. iii. 889 to 891. After issue, any Burr. 59; Tidd, 9th ed. 463. 
 
 new matter must have been pleaded pv,is dar- (p) 2 M. & Sel..484. 
 
 rein continuance. See the forms, posi, vol. iii. (g) 2 Saund. 1 n. 2; 4 r. a. 620; 6 T. R. 
 
 1244. 369; 7 T.E. 447, noted. 
 
 (I) 2 Bla. Eep. 1095. 1096. And as to the (r) 3 B. & Aid. 259; 1 Chit Kep. 704, S; 
 
 diiferent kinds of imparlances, and when and C. 
 
 how granted, and what may or may not be (s) Lutw. 6, and Bae. Ab. Pleas, C. 4; 2 
 
 done after each, see 2 Saund. 1, n. 2; Tidd, Bla. Rep. 1095. 
 
 9th ed. 462. (<) Hardr. 365; Bao. Ab. Pleas, C. 4. 
 
*438 OF IMPAKLANCES. 
 
 IT. iMPAE- granted of course by the prothonotary upon an application to him within 
 LABOEs. ^[jg gj.gj. fQm, ^j^yg Qf ^}ie term subsequent to that of the declaration : but 
 in the King's Bench, it was said to be granted only by leave of the Court 
 obtained by a side bar rule (m). In both Courts the speeial imparlance 
 must have been stated in a plea *in abatement, when it was entitled of a 
 term subsequent to the declaration (a;). 
 
 The third description of imparlance, usually denominated a General 
 Special imparlance, was with a saving of all exceptions whatsoever (jj'), 
 and could only be obtained by an application to the Court on motion with- 
 in four days of the next term after the declaration ; and it was in the dis- 
 cretion of the Court, governed by the particular circumstances of the case, 
 to grant it or not; and it would not be granted in order to enable the de- 
 fendant to plead to the jurisdiction if he had appeared by attorney. The 
 prothonotary had no power to grant this description of imparlance, and a 
 plea under a grant by him would be a nullity, and the plaintiff might sign 
 judgment or at least a respondeas ouster might be awarded (2). When 
 this imparlance had been obtained, the defendant might not only plead in 
 abatement of the writ or count, but also personal privilege (a). In point 
 of form this imparlance was similar to the last with the exception of the 
 words " saving to himself all advantages and exceptions whatsoever" and 
 sometimes in addition to these words the following are added : " as well 
 to the writ and declaration as to the jurisdiction of this Court-" {b) but 
 the first is the better form. 
 
 If the defendant plead to the jurisdiction, or to the disability of the 
 plaintiff or defendant to sue or be sued, after a general imparlance, or to 
 the jurisdiction after a special imparlance, the plain tiff might in general ei- 
 ther sign judgment or apply to the Court to set aside the plea, or he might 
 demur to it, or allege the imparlance in his replication by way of estop- 
 pel ; but if the plaintiff, instead of taking any of these advantages, reply 
 to the special matter of the plea, the fault was aided (c). 
 
 Ijnparlan- A.S regards personal actions commenced in either of the Superior Courts, 
 ces to after the distinctions between the Terms and Vacations were fqr many 
 SnT' purposes annulled by statute 11 G. 4, and 1 W. 4, c. 70, and 1 W. 4, 
 now "virtu- c. 3, and plaintiffs were, by 2 W. 4, c. 39, sect. 11, enabled to declare 
 ally abol- and expedite their actions in the vacations, it was finally settled, after some 
 ished and opinions and decisions to the contrary, that imparlances in such actions 
 inS.*""* were virtually abolished {b} ; and Reg. Gen. Hil. T. 4 W. 4, reg. 2,t 
 expressly orders that no entry of continuances by way of imparlance shall 
 be made, but provides for the statement of matters that may have arisen 
 [ *439 1 pending the action and *since the last pending, by way of suggestion or al- 
 legation, and the forms of which statements will be found in the commence- 
 ment of the third volume of this edition (e). In case of death of one of 
 
 (u) 2 Bla. B. 1094; 2 Saund. 1, 2, note 2; (i) 2 Bla. R. 1044; 2 Saund. 2 a, note 2. 
 
 R. E. 5 Ann.; Tidd, 9th ed. 462, 463. (c) 2 Saund. 2 b, n. 2; Tidd, 9th edit. 463, 
 
 {x) i T. R. 420, 521 ; 6 T. R. 869; 1 T. R. 464. 
 447, in which 1 Bla. Rep. 51; 1 Wils. 261, (d) Nurse v. Greeting, 3 Dowl. 142, 158; 
 
 were overruled. In all cases the imparlance 1 Crom. M. & Ros. 567; Wigley w. Tom- 
 
 in such case should be stated in the issue, 2 Una, 3 Dow. 7; 8 Chitty's Gen. Prac. 103, 
 
 Saund. 1 e, note 2. 104. 
 
 (y) See the forms, post, vol. iii. 889 to 892. (e) See Bosanquet's Rules 5 and 6 in notes; 
 
 («) 2 Saund. 2 b. note 2. see form, id. 181. 
 
 (a) Id.; 1 Lev. 54. 
 
 t Bee American Editor's Preface. 
 
OP IMPARLANCES. 439 
 
 several plaintiffs or defendants jjewtimo- a suit, the 8 & 9 W. 3, c. 11, i^' impab- 
 sect. 7, directs that if the cause of action survive, the suit shall not abate, '^■^'"''^• 
 provided the death be duly suggested or stated on the records. In the 
 commencement of the third volume there will be found several forms of 
 such suggestions, which should be duly made in the earliest instance, or 
 at least within eight days afterwards (/). 
 
 (/) See fieg. Gen. Hil. T. 4 W. 4, reg. 2; and see form, Bosanquet's Rules, 131; and 
 post, vol. iii. 
 
t *440 ] 
 
 Order of 
 pleading. 
 
 CHAPTEE VI. 
 
 OF PLEAS TO THE JURISDICTION, AND IN ABATEMENT, 
 AND THE PROCBEDING-S THEREON. 
 
 The law has prescribed and settled the order of pleading -which the de- 
 fendant is to pursue, and although it has been objected that as regards pleas 
 in abatement the division is more subtle than useful, yet as regulating in 
 some respects the forms of commencements and conclusions of the pleas 
 and the right to plead another plea in abatement in some cases after judg- 
 ment against the defendant of respondeas ouster, it is deemed here expedi- 
 dient to adhere to the ancient order, especially as no preferable arrange- 
 ment has been suggested, viz. (a). 
 
 1st. To the jurisdiction of the Court. 
 2dly. To the disability, d^c. of the person. 
 ( 1st. Of the plaintiff. 
 \ 2dly. Of the defendant. 
 To the . Count or Declaration. 
 To the Writ. 
 
 1st. To the form of the writ. 
 
 I 1st. Matter apparent on the face of it. 
 I 2dly. Matter dehors. 
 ^ 2dly. To the action of the writ. 
 To the action itself in bar thereof (6) (1) . 
 
 Sdly. 
 4tthly. 
 
 Bthly. 
 
 This, it is said, is the natural order of pleading, because each subse- 
 quent plea admits that there is no foundation for the former, and precludes 
 the defendant from afterwards availing himself of the matter, as when the 
 defendant pleads to the person of the plaintiff he admits the jurisdiction 
 of the Court, for it would be nugatory to pleadf that defence in a court 
 which has no jurisdiction (c) ; and when the defendant pleads to the count 
 [ *441 1 ^6 admits that the plaintiff is able to sue him *and the defendant to be 
 sued; and when the defendant pleads to the form of the wi'it he admits 
 the form of the count ; and after a plea in bar to the action the defendant 
 
 (o) See Stephens on Pleading, 2d ed. 71, u. 
 (c) ; and see the arrangement of the subject 
 of Abatement, Comyn's Digest and Bacon's 
 Abridgement, tit. Abatement. 
 
 (*) Per Holt, C. J., 2 Ld. Raym. 970; 
 Latch. 178; Co. Lit. 303, 304; Gilb. C. P. 49; 
 Doo. Plao. in Preface; Com. Dig. Abatement, 
 C; Tidd, 9th ed. 630; and for an account of 
 the -various kinds of pleas in Equity, and 
 their essential difference, see Beames' PI. Eq. 
 chap. II. 
 
 (c) In Inferior Courts, however, this does 
 not obtain, for if such court have not juris- 
 diction over the subject-matter, it will be a 
 ground of nonsuit on the trial, 1 T. K. 151; 
 ante, 428; and if there be a total want of 
 jurisdiction in any of the Courts in England, 
 the matter may be pleaded in bar, or given 
 in evidence under the general issue, even in 
 actions in the superior Court at Westminster ; 
 6 East, 583; 1 East, 352; Tidd, 9th ed. 
 960. 
 
 (1) The order of pleading does not appear to have varied much from this sohemi 
 rliest periods of the law. 1 Eeeve's Hist. E. L. 451; 2 Keeve's Hist. E. L. 226. 
 
 earliest 
 
 scheme, even at the 
 
OF PLEAS TO THE JUEISDICTipN. 441 
 
 cannot plead in abatement, unless for new matter arising after the com- oedeb of 
 mencemeot of the suit (rf) (1). plbadino. 
 
 If this order of pleading be inverted, the defendant will be precluded 
 from pleading any matter prior in point of order (e). And this is mate- 
 rial, for though it is said that after a judgment of respondeas ouster there 
 can be no plea in abatement, because if it were allowed, there would be no 
 end of such pleas (/) ; yet this must be understood of pleas in abatement 
 in the same degree as popish recusancy and outlawry (g-), which are both 
 to the person ; for the defendant may plead to the person of the plaintiff, 
 and if that be overruled, he might afterwards, if in time, plead to the form 
 of the writ (A). 
 
 The more general division of jofeas is, however, 1st, Pleas Dilatory; 
 2dly, Pleas Peremptory (i). Of the former description are pleas to the 
 jurisdiction ; to the disability of the person ; to the count or declaration, 
 and to the writ; of the latter or peremptory kind, and which lead to an 
 issue which finally settles the dispute, are pleas in bar of the action. 
 
 I. OF PLEAS TO THE JUEISDICTION. , i. pleas to 
 
 THE JTIEIS- 
 DICTION 
 
 Pleas of this description though in effect they abate the writ (2) , yet differ 
 from pleas in abatement, principally in three points, viz. that they must be 
 pleaded in person ; that at all events before the- recent pleading rules, Hil. 
 Term, 4 W. 4, only half defence should be made ; and that they should 
 conclude si curia cognoscere velit, and not quod bit a cassetur (&). Objec- 
 tion even to the jurisdiction of the. superior Courts may in some cases be 
 taken under the general issue, but in general they must be pleaded (3). 
 In all transitory actions, and in local actions arising in England or Wales, 
 if there be no plea to the jurisdiction, the Courts at Westminster may in 
 general hold plea thereof (Z). And therefore it cannot be jjfeac/ec? that 
 the debt is under 40s. and ought to have been sued for in the County 
 Court, because the superior Courts have concurrent jurisdiction, and the 
 only course *is to apply to the superior Court by motion to stay the pro- [ *442 ] 
 ceedings (m). The instances in which ap action may be brought here, al- 
 though the cause of action .arose in a foreign country, have been already 
 
 (d) Gilb. C. P. 50; Com. Dig Abatement, (fc) Bao. Abr. Pleas, B; 2, and abatement; 
 C. I. 23, 24. 5 Mod. 146; 1 Salk 298; 3 Bla. Com. 301. 
 
 (e) Co. Lit 303; Com. Dig. Abatement As to pleas to the jurisdiction in general, see 
 C; Doc. Plac. Preface. claim of conusance, ante, 422; Com. Dig. 
 
 (/ ) Bac. Ab. Abatement, 0. ; Gilb. C. P. Abatement, D. ; Bac. Ab. Pleas. E. and 
 
 186; 2 Srtind. 401; 12 Mod. 230. Courts, D. and Gilb. C. P. 187 to 197; Tidd, 
 
 (g) Hetl. 126. 9th edit. 630; in equity, Beames' PI. Eq. 57, 
 
 (A) Com. Dig. Abatement, I. 3, 4; Bac. 252. 
 Abr. Pleas, K. 1. (i) Andr. 198; 1 Wood, 193; Bac. Ab 
 
 (i) See Stephen, 2d edit. 67; and id. Ap- Pleas. E. 1. 
 pendix, note 19. (m) Sandall o. Bennett, 2 Adol. & El. 204. 
 
 (1) Palmer v. Evertson, 2 Cow. 417; Potter v. McCoy, 26 Penn. State Eep. 458. 
 
 (2) Want of Jurisdiction in the court will abate a writ. Ingalls v. Richardson, 3 Metoalf, 
 340; Osgood v. Thurston, 23 Pick. 110. The court will abate a writ ex officio, where it 
 appears on the record that it has no jurisdiction of the case. Osgood v. Thurston, 53 Piok. 
 110. 
 
 (3) Ryan v. Jackson, 11 Texas, 391; Webb u.-Mann, 3 Michigan, 139. It may be shown 
 under the general issue, that there is no court in the country which has jurisdiction o£,the cause. 
 Kea V. Hayden, 3 Mass, 124; Anthon v. Fisher, Doug. 650, n, 132. Sed Vide Smith v. Elder, 
 3 Johns. 113. . . a , r 
 
442 OP PLEAS 
 
 I. PLBAs TO noticed (m). Where the court has mo yMnsc/jc^iow at common law, or it 
 THE JURIS- jj^g i^gg^ taken away by act of parliament, such want of jurisdiction may 
 DICTION. .^ general be pleaded in bar, or given in evidence under the general issue, 
 and it is not properly the subject of a plea in abatement (o). And it has 
 been recently decided that where a public statute for erecting a Court of 
 inferior jurisdiction enacts that no action for any debt not amounting to 
 40s., &c. and recoverable by that act, shall be brought against any per- 
 son residing within the jurisdiction, &c., such statute is a defence upon 
 the general issue to a party bringing himself within it, who is sued in the 
 superior Courts, unless the statute direct another course of proceeding (p). 
 In other cases the statutes relating to the Courts of Eequests, and which 
 invest them with exclusive jurisdiction in certain cases, enable the debtor, 
 if sued elsewhere, to plead the exemption in bar, or direct that a sugges- 
 tion of the matter shall be entered oh the roll. The exact mode of relief 
 pointed out by the respective statutes must be strictly pursued (g). 
 
 In most of the inferior Courts the want of jurisdiction is fatal to the 
 suit, without any plea stating the objection, for the cause of action must 
 be alleged to have arisen within the jurisdiction, or a writ of false judg- 
 ment may be supported ; and if the fact be so alleged but not so proved, 
 the plaintiif ought to be nonsuited on the general issue ; and if the inferior 
 Court admit' the jurisdiction, a bill of exceptions may be tendered, or a 
 prohibition issued (r). In these cases, however, the defendant may plead 
 to the jurisdiction, which seems to be the safer course (s). 
 
 "We have already seen that the defendant can only plead to the jurisdic- 
 tion where the grant to the inferior Court was habere cognilionem placi- 
 torum, with exclusive words (<). In this case the plea cannot be in bar. 
 At common law there was a distinction between a. foreign plea and a plea 
 r *443 1 ^^ ^^® jurisdiction. A foreign plea was where *the action was carried 
 out of the couuty or place where the venue was laid (m). Ancient de- 
 mesne, and all pleas of privilege, are pleas to the jurisdiction, and not 
 foreign, pleas {x). It was always necessary before the statute of Ann to 
 verify & foreign plea by affidavit, but not a plea to the jurisdiction (j»). 
 
 Pleas to the jurisdiction, when the objection cannot be otherwise tak- 
 en, are either in local or transitory actions. The defendant may, in local 
 actions, plead to the jurisdiction, when the cause of action accrued in a 
 jurisdiction into which breve domini regis non currit (2). Therefore he 
 might plead that the lands are ancient demesne, holden of the king's ma- 
 nor (a) ; and before the late statute {b) he might have pleaded that the 
 
 (n) Ante, 267, 275. 60, 69, 78; and 1 Wentw. Index; Lil. Ent. 
 
 (o) 6 East, 583; 1 East, 852; 4 T. E. 503. 475. See forms, ;)os<, toI. iii. 
 
 (p) 1 East, 352. («) Ante, 423 
 
 (p) Per Lord Kenyon, 1 East, 364. Sev- (u) 1 Sauad. 98, note 1; Garth. 402; Vin. 
 
 eral of these statutes are collected, and the Ab. Foreign Pleas. See the precedent, Lil. 
 
 mode of proceeding is pointed out in Tidd, Ent. 476. 
 
 8th edition, 989 to 995; 9th edit. 954 to 962; (x) Vin. Ab. Foreign Pleas, A. 11; 5 Mod., 
 
 and see Mr. Tidd Pratt's comprehensive col- 335. 
 
 lection of the statutes relating to Courts of (3/I 1 Saund. 98, note 1; Carth. 402; Vin. 
 
 Bequest. In many instances if the debt be Ab. Foreign Pleas, 5 Mod. 335. 
 manifestly less than 40s. and be recoverable (z) Bao. Ab. Courts. D. 3;Gilb. C. P. 191; 
 
 in the County Court, &o. the superior Courts 1 Wils. 206; 3 East, 128. 
 will stay the proceedings in the action, Tidd, (a) 10 East, 523; Com. Dig. Abatement, 
 
 9th edit. 516; but the objection cannot be D. 1; Ld. Rayra. 1418; 1 Salk. 66; seethe 
 
 ^Zcarfeii, see 2 Adol. & El. 204. precedents in Heme, 351; Knst. Ent. 101; 
 
 (r) Gilb. C. P. 188, 189; Bao. Ab. Pleas, Thomp. Ent. 2; Mod. Ent. 249; 3 Inst. C. S. 
 
 E. 1; Courts, D. 4; 1 Saund. 98, note 1. 9; Hans. 103; 1 Wentw. 51; and see other 
 
 (s) Bao. Ab. Courts, D. 4; see the preee- forms and replications, 1 Went. Index, 
 dents of plea and replication, 1 Wentw.-Sl, (6) 1 Wm.4, c. 70,s. 13. 
 
TO THE JDRISDICTION. 44?1 
 
 cause of action arose in Wales (c) ; or in a county palatine {d). So he i. plsasto 
 may plead that the cause of action arose in the cinque ports (e), or in Lon- ^10^0™'^ 
 |^°7 (/)) or any other exclusive jurisdiction (§•) ; But Ely is not an exempt 
 jurisdiction, though the Bishop may demand conusance (A). It has been 
 held that it may be pleaded in a local action that the lands are out of the 
 realm (i) ; but as that might be pleaded in bar, or be given in evidence 
 under the general issue, it is unnecessary to plead sucli matter in abate- 
 ment (A;). In ejectment, as the real defendant is obliged on appearing to 
 enter into the consent rule, and to plead the general issue, he cannot plead 
 to the jurisdiction without leave of the Court (/). 
 
 In all transitory actions the Courts at Westminster have jurisdiction, 
 unless taken away by particular act of parliament (m), and with the excep- 
 tion in favor of the Universities of Oxford and Cambridge (ra), unless the 
 plaintiff by his declaration shows that the action accrued in an exclusive 
 jurisdiction, no objection to that of the *Superior Courts can be taken (0). [ *444 ] 
 And if the declaration disclose the fact, still the defendant cannot demur or 
 move in arrest of judgment, but must plead to the jurisdiction (p). It has 
 been said that there are no pleas to the jurisdiction of the Courts at West- 
 minster in transitory actions, unless the plaintiff by his declaration admits 
 that the cause of action accruedin a county palatine (7). It is, however, 
 presumed that those cases were only put as instances, and that if it ap- 
 peared on the face of the declaration that the cause of action arose in any 
 other exclusive or exempt jurisdiction, a plea to the jurisdiction might be 
 pleaded (r). 
 
 Some pleas in abatement arising ivom privilege oi person, may be classed 
 under pleas to the jurisdiction, in respect of their affecting the jurisdiction 
 of the Court, and concluding whether the Court ought to have further con- 
 usance of the suit (s) ; as where an attorney or of&cer of a particular 
 Court, a tinner, or scholar of the Universities, is sued out of the proper 
 Court. (4) (1). 
 
 Where a person is wrongfully sued in an inferior Court he must tender 
 his plea to the jurisdiction in propria persona sedente curia, and made 
 
 (c) Com. Dig. Abatement, D. 2; 1 Wils. (m) Bao. Ab. Courts, D. 3; seethe dififer- 
 193; Doug]. 213. See the precedents, 1 ent statutes, Tidd, 9th edit. 954 to 962. 
 Wentw. 45, 49, 68; 1 Wils. 193. (n) Bae. Ab. Courts, D. 3; Gilb. C. P. 
 
 (d) Com. Dig. Abatement, D. 2. See the 191; Wood, Inst. 520 ; Vin. Ab. University, 
 ' precedents, Kast. Ent. 419; Heme, 7; 3 Inst. K. 
 
 CI. 14; 1 Wentw. 49. (0) 4 Inst. 213; 1 Sid. 103; Gilb. C. P. 
 
 (e) Com. Dig. Abatement, D. 3; 4 Inst. "191 ; Bac. Ab. Courts, D. 3. 
 
 224; Jenk. 190; Keil. 88. See the precedents, (p) Garth. 11, 354; Bao. Ab. Courts, D. 
 
 Bro. Red. 475, and 1 Wentw. Index. 3; Gilb. C. P. 191; 5 Mod. 144. 
 
 (/) 3 Leon. 148. (?) 4 Inst. 212, 213, and other authorities, 
 
 Ig) Bro. Ab. Conusance, 52; 1 Bla. Kep. Tidd, 9th ed. 631, note (c). 
 
 197. See the precedent^, 1 Wentw. Index. (.r) See 1 Wils. 193. See the precedents 
 
 (A) Carth. 109; Salk. 193; 3 East, 128, in transitory actions Id.; 1 Wentw. 45, 49, 
 
 138. 68. 
 
 (i) Show, l&l, 1 Salk. 80; Com. Dig. (s) See the precedent, 8 T. R. 631; Com. 
 
 Abatement, D. 3. Dig. Abatement, D. 4; Bac. Ab. Abatement, 
 
 (ft) 6 East, 583; 4 T. R. fSOS; ante, 277, C. Pleas, E. 2; Lutw. 45, 639; 22 Vin. Ab. 
 
 287. ■ 9; 3 T. R. 186; 5 Mod. 146; Gilb. C. P. 208, 
 
 (I) Bla. Rep. 197; 3 Wil. 51; 2 Stra .1120; 209, cited 5 Mod, 335; 12 Bast, 544. 
 
 8 T. R. 474. (t) See the precedents, post, vol. iii. 
 
 (1) Vide King v. Coit, 4 Day, 134. ' An attorney sued jointly with another, cannot avail 
 himself of his. privilege. Tiffany v. Driggs, 13 Johns. 252; Wood v. Mann, 1 Sumner, 578; 
 Brooks V. Patterson, 1 Johns. Cas. 328; Gilbert v. Vanderpool,' 16 Johns. 242. ' 
 
 Vol. I. 59 
 
444 
 
 OP PLEAS 
 
 I. PLEAS TO oath of the truth thereof (1) ; and if the inferior Court will not accept 
 DICTION."' ^^^ plea he may have a prohibition from one of the common law Courts at 
 "Westminster, or in vacation from the Court of Chancery (w). In the su- 
 perior Courts a plea to the.jurisdiction must be pleaded within four days, 
 both the first and last of which are inclusive, after declaration (z), and 
 generally before imparlances («/). Formerly it must have been entitled 
 of the same term as the declaration {z), but Eeg. Gen. Hil. T. 4 W. 4, 
 now requires every pleading to be entitled of the day of the month and 
 year when the same is pleaded, and shall bear no other time or date. It 
 must be pleaded in person, and not by attorney, because the latter would 
 admit the jurisdiction of the Court (a) ; and for the same reason, at least 
 before Eeg. G-en. Hil. T. 4 W. 4, full defence ought not to be made, but 
 only half defence, though the words " when, 8fc." would suffice (6). A 
 [ *445 ] party paying money into Court, admits the jurisdiction of such Court, *and 
 cannot plead in abatement to it (c) (2). After stating the appearance 
 and defence, the plea may proceed at once to show the defect of jurisdic- 
 tion, without any preliminary prayer si curia cognoscere velit, &c. {d). 
 
 In all pleas to the jurisdiction of the superior Courts, it must be shown 
 that there is another Court in which justice may be effectually administer- 
 ed (3), for if there be no other mode of trial, &c. that alone would give 
 the superior Court jurisdiction (e). In transitory actions, it was neces- 
 sary to aver in a plea that county palatine Court ought to entertain the 
 suit ; either that the defendant dwelt in the county palatine, or that he 
 had sufficient goods and chattels there by which he might be attached, oth- 
 erwise the plea could not be allowed lest a failure of justice should ensue, 
 (/). But in a plea to the jurisdiction of an inferior Court it was suffi- 
 cient to allege that the cause of action accrued out of its jurisdiction, 
 without showing the jurisdiction to which the plaintiff should have resort- 
 ed (§■). These pleas should conclude with a prayer, " si curia cognoscere 
 velit," or '^ respondere nan debet," and not '■^ quod billa vel breve casse- 
 tur" (Ji). The former was the most usual conclusion when the subject- 
 
 (m) 1 Saund. 98, u. 1; 6 Mod. 146; Bao. 355; 3 Leon. 148; 4 T. R. 503; \ Inst. 213; 
 
 At). Pleas, E. ; Courts,D. 4; Pleas, E.l; ante, Bao. *Ab. Abatement, A. Courts, D. -3. So 
 
 425. the Courts by analogy will not stay the pro- ■ 
 
 {x) 8 T. E. 474; Com. Dig. Abatement, D. ceedings, although the debt bo uiider 40s., if 
 
 9; Tidd, 9th ed. 638, 139. When otherwise, there be no inferior Court, which has juris- 
 
 id. diction over it, 3 B. & P. 617; Tidd, 9th ed. 
 
 (i;) Ante, 437; Com. Dig. Abatement, D. 516; and see Sandal v. Bennett, 2 Adol. & 
 
 9; Gilb. C. P. 187; Bac. Ab. Pleas, E. 2. El. 204. 
 
 (z) Ante, mto 4:^. (/) Carth. 355; Tidd, 9th ed. 631. See 
 
 (a) 2 Saund. 309 b; Gilb. C. P. 187; Bae. the precedents, post, vol. iii. 
 
 Ab. Abatement, A. Pleas, &c. 2; 8 T. R. (g) 6 East, 600,601; and see the prece- 
 
 631. dents, 1 Wentw. 61, 60, 61, 78; pott, -vol. iii. 
 
 (J) ^nie, 429; 2 Saund. 209 b. (ft) Bac. Ab. Pleas, E, 2; Latch. 178; 6 
 
 (e) 5 Esp. Kep. 21, 22. Mod. 146; Bro. Jurisdiction, pi. 17; 2 Saund. 
 
 \d) See the forms. East. Ent. 101, 419; 209; Rast. Ent. 101, 419; Heme, 351; 1 
 
 Berne, 851; 1 Wils. 193,anda)i«e,425. But Wils. 193; Lutw. 46, 639; 2 Rich. C. P. 10; 
 
 pee the precedent, 8 T. R. 631. Lil. Ent. 9. 
 
 (e) 6 East, 598, 600; Cowp. 172; Carth. 
 
 (1) Teasdale v. The Rambler, Bee, 9; Hortons v. Townes, 6 Leigh, 47. 
 
 (2) Want of jurisdiction of the parties, and of the subject matter, cannot be waived. Mor- 
 ton J., in Carlisle v. Weston, 21 Pick. 535; Osgood v. Thurston, 23 Pick. 110. But mere de- 
 fects in the service or fes/e, or place of return, may, when the court has jurisdiction in other 
 respects, be waived. Carlisle v. Weston, 21 Pick. 535; Simonds v. Parker, 1 Metcalf, 
 508. 
 
 (3) Vide Lawrence v. Smith, 5 Mass. 362; Rea ». Hayden, 3 Mass. 24; Jones v. Winchester, 
 6 N. Hamp. 497; Dumsoussay r. Delevit, 3 Har, & .tohns, 151, 
 
IN ABATEMENT. 
 
 445 
 
 matter of the plea related to the cause of action, and the respondere non '• p^eas to 
 
 !••■ 7 THF. JURIS" 
 
 debet seems proper where the objection to the jurisdiction is a personal okjhom. 
 privilege (i). If the plea were to conclude in bar to the action, the jur- 
 isdiction would thereby in general be admitted {K). 
 
 In support of a plea to the jurisdiction there must in general be an affi- Affidavit 
 davit of the truth of its contents {m) (1). And where ancient demesne (')• 
 is pleaded, the afiSdavit must state that the lands are holden of a manor 
 which is ancient demesne, that there is a Court of ancient demesne regu- 
 larly holden ; and that the lessor of the plaintiff has a freehold inter^ 
 est in). 
 
 To the plea of ancient demesne the plaintiff may reply that the *land is Replica;- 
 pleadable at common law, and traverse that the manor is ancient demeshe, ^^\^^ -, 
 or he may reply without a traverse (o). The replication to a plea to the L ■**"■ i 
 jurisdiction in general commences with a statement that the writ ought not 
 to be quashed, or that the Court ought not to be ousted of their jurisdic- 
 tion, because, &c. (p) ; and concludes to the country if the replication, 
 merely deny the subject-matter of the plea (g). Where the plaintiff de- 
 murs to the plea, he states that he is not bound to answer the plea,' and 
 that the same is not suflScient to prevent the Court from having conusance 
 of the action (r) ; the language of the joinder in demurrer corresponds 
 with that of the demurrer (s). 
 
 The judgment in these cases is,.that the writ shall abate, or respondeat 
 ouster {ly. 
 
 II. OP PLEAS IN ABATEMENT iu), ri. of pleas 
 
 IH ABATE- 
 
 Tvrpwr 
 
 Whenever the subject-matter of the plea of the defence is, that th<e 
 plaintiff cannot maintain any action at any time whether present or future 
 in respect of the supposed cause of action, it may and usually must, be 
 pleaded in bar ; but matter which merely defeats the present proceeding 
 and does not show that the plaintiff is forever concluded, should in gene- 
 ral be pleaded in abatement (2), from the French abetre (x). The crite- 
 
 (!) Id.; but the plea of an attorney sued (u) Although pleas in abatement of the 
 
 by latitat in his own Court may conclude si writ in respect of Variances, &c. have now 
 
 curia cognoscere velit, 12 East, 444; and see been virtually abolished by the modern prao- 
 
 the present form, post, vol. iii. tice of the Courts not permitting oyer of the 
 
 (ft) Vin. Ab. Courts,' Jurisdiction, N. a. writ so as to disclose that variance, and 
 
 Id As to the time of swearing the affidavit, although pleas of misnomer have been express- 
 see 3 Chitty's Gen. Prao. 712. ly abolished by the 3 & 4, c. 42, s. 11, and 
 
 (m) 4 Ann. c. 17 s. 11; Bac. Ab. Courts, pleas of nonjoinder are much limited, yet 
 
 D. 4. See ante, 425, 426. there are still many instances in which pleas 
 
 (»i) Burr. 1016. in abatement may still be usefully pleaded, 
 
 (0) Com. Dig. Abatement, D. 1. and students and practitioners should examine 
 (p) Thomp. Ent. 2; East. Ent. 101; Clift. the subject; see in general Com. Dig. Abate- 
 
 Ent. 17. ment, 1 Wentw. and post, vol. iii. As to 
 
 (q) Id. pleas in abatement in Courts of equity. See 
 
 (r) Rast.Ent. 419; 1 Wils. 194. Beames' PI. Eq. 53, 54, 57, 280, &o. 
 
 (s) Id. (i)'4T. R. 227; Bac. Ab. Abatement, N. 
 
 (t) Vin. Ab. Courts, Jurisdiction, N. a; Com. Dig. Abatement, B. ; 3 Campb. 152. 
 
 Com. Dig. Abatement, I, 14. 
 
 (1) Teasdale v. The Rambler, Bee, 9. 
 
 (2) A plea in abatement, alleging that there are otliers liable with the defendant does not 
 admit the existence of any contract whatever,' the new parties being conditionally named,. 
 
446 OP PLEAS 
 
 n. PLEAS rion or leading distinction between a plea in abatement and a plea in bar 
 MEST. ""^^' that the former must not only point out the plaintiff's error, but must 
 show him how it may be corrected, and furnish him with majprials for 
 avoiding the same mistake in another suit in regard to the same cause of 
 action ; or in technical language must give the plaintiff a better writ (jf) 
 (1). There are, however, some matters which may be pleaded either in 
 abatement or in bar ; as in replevin for goods, the defendant may plead 
 property in himself or in a stranger (2), either in abatement or in bar (z). 
 So outlawry (3) for felony, alien enemy (4) at the time of the contract 
 [ *447 ] (a), and 'attainder, by either of which the cause of action forfeited, may 
 be pleaded in abatement or in bar (6); and when the defendant has omit- 
 ted to plead such matter in abatement in due time, he must plead in bar (c). 
 There were instances in which the right of action, and even the pres- 
 ent suit, was suspended only, and not destroyed, and when the matter 
 could only be pleaded in abatement, and the plea should conclude si res- 
 ponderi debet quosque, &c. and when the disability is removed the suit 
 Parol de- will proceed (rf). Of that description vfna parol demurrer; the meaning 
 S)oiUhed ^^ '«>^hich was, that the pleading should be stayed. That occurred where 
 by 1 W. 4, S'H infant heir was sued on the specialty debt of his ancestor, and pleaded 
 c. 47iS. 10. his Honage, not as a bar of defence, but merely in suspension of the exist- 
 ing proceedings until he arrived at his full age {d). A plea of this nature 
 was termed, and was for the most purposes a plea in abatement ; but in 
 this respect it was dissimilar, that it operated only as a temporary suspen- 
 sion of the present suit, and did not, like the generality of pleas in abate- 
 ment, allege matter, which, although it gave a better and another 
 action, had the , effect of -destroying altogether the suit in which it is 
 pleaded. The right, however, of parol demurrer was taken away by the 
 stat. 1 W. 4, c. 47, sect. 10, which enacts that where any action, suit, or 
 other proceeding for the payment of debts or any other purpose shall be 
 commenced or prosecuted by or against any infant under the- age of 21 
 years, either alone or together with any other person or persons, the pa- 
 rol shall not demur, but such action, suit, or other proceedings shall be 
 prosecuted and carried on in the same manner and as effectually as any 
 action or suit could before the passing of this act be carried on or prose- 
 cuted by or against any infant where according to law the infant did not 
 demur. 
 
 (y) See 1 Saund. 274, note 3, 285, note 4; C. L. 61 to 63. As to pleas of these matters 
 
 see 1 Chitty on Pleading, 6th edit. 491. in equity, see Beames' PI. Eq. 100, 109, 112. 
 (2) 1 Salk. 6. (c) Bao. Ab. Pleas, C. 3. 
 
 (a) 3 Camp. 152, 153. {d) Ld. Raym. 105; 12 Mod. 400; 4 East, 
 
 (b) Bao. Ab. Abatement, N.; Com. Dig. 504. 
 
 Abatement, K. ; Co. Lit. 128 b, 129 b; Ld. (o) See Com. Dig. Infant, D.; East. 860, 
 
 Raym. 1249; Bro. Vade Mecum, 252; Gilb. 326, 379; Bro. Red. 195; 4 T. R. 77; 4 East, 
 
 C. P. 200; Tidd, 9th ed. 634. But a defend- 485; Stephen, 2d ed. 68. Po)-o/,i. e. loquela. 
 
 ant cannot plead his ovm attainder. Forst. DemUr, is from demurrer, "to stay." 
 
 to enable the defendant to connect them with whatever contract may be proved ; but it operates 
 no further than to preclude an objection for want of parties a second time, and the plaintiff is 
 bound to prove his case against all who are named, as if there had never been a proceeding to 
 ascertain them. Whitner i. Schlatter, 2 Rawle, 869. 
 
 (1) Wilson V. Nevans, 20 Pick. 20. 
 
 (2) Vide Ilsley ihStubbsj 5 Mass. 285; Harrison v. M'Intosh, 1 Johns. 380. 
 (8) See post, 483, note i. 
 
 (4) Vide Bell J). Chapman, 10 Johns. 183. But whether pleaded in abatement or in bar, it 
 18 only a temporary disability. Ibid. Russell v. Skipwith, 1 Serg. & Rawle, 810. 
 
IN ABATEMENT. 
 
 447 
 
 Pleas in abatement we have already sefen (f) are divided into those "• pj-^a* 
 relating ment. 
 
 1st. To the disability of the person suing Or being sued; as, 
 1st. Of the plaintiff; 
 2dly. Of the defendant. 
 *2dly. To the count or declaration. [ *448 ] 
 
 Bdly, To the v>rit (§■). 
 
 1st. To the form of the writ. 
 
 1st. Matter apparent on the face of it. 
 Idly. Matter dehors. 
 Idly. To the action of the writ. 
 
 The subject -will be considered in reference to the above division, and 
 vrill be concluded by some observations on the forms and qualities of a 
 plea in abatement, on the affidavit of its truth, and on the replication and 
 other proceedings. 
 
 Pleas to the ability of the plaintiff show that he is incapable of com- i-relatiko 
 mencing or continuing his suit by denying his existence, as that he, ar 3q^_ 
 one of the plaintiffs, at the time of the commencement of the suit, was 2i fic- 
 titious person (Ji) (1), or by alleging that he is dead (i) (2). So, where a 
 sole plaintiff dies pending his suit, such death may be pleaded in abatement 
 (k) ; but in the case of several plaintiffs or defendants, the death of one does 
 not abate the suit, if the cause of action survive to or against the survivors (/) . 
 So, the defendant may plead in abatement or, as we have just seen (rn), 
 in bar, that the plaintiff is an alien enemy («) (3), attainted of trea- 
 son or felony (o) ; or outlawed upon mesne or final process (^) ; So, the 
 
 (/) Ante, 440; Com. Dig. Abatement, C. ; Com. Dig. Abatement, E. 17. 
 Stephen, 2d ed. 70. (fr) Bac. Ab. Abatement, F. ; Com. Dig. 
 
 (g) Mr. Serjeant Stephen observes, 2d ed. Abatement, H. 32, 33. 
 Pleadings, 71, a. c, that these divisions of (I) 8 & 9 W. 3, o. 11, s. 7, Chitty's Col. 
 
 pleas in abatement to the writ, seems to be , Stat. 1, 2. 
 more subtle than useful, and do not in modern (nj) Ante, 4AQ. 
 
 practice often come under consideration. Still, (n) Com. Dig. Abatement, E. 4; Bac. Ab. 
 
 however, as the ancient forms of commence- Abatement, B. 3 ; 1 Doo. Plac. 8. See forms ; 
 
 ment and conclusion depended in some meas- 3 Inst. CI. 16; 2 Stra. 1081; 2 Ld. Raym. , 
 
 ureon the classification of the plea, the stu- 1243; Lutw. 34; 1 Wentw. Index, 8; Gilb. 
 
 dent ipay find it useful to keep in view the ar- C. P. 205 ; see the precedents in bar, post, 
 
 rangement. There is always great danger vol. iii. 
 
 in departing from old forms or evenarrange- (o) Carth. 137, 138; Com. Dig. Abatement, 
 
 ments. E. 3. See the form, 1 Wentw. 7; 2 B. & Aid. 
 
 (A) Com. Dig. Abatement, E. 16; Bac. Ab. 258. 
 Abatement, F.; 1 Wils. 302; Gilb. C. P. 248; (p) Gilb. C. P. 196, 197; Com Dig. Abate- 
 
 see the precedents, Ast. Ent. 10; 3 Inst, ment, E. 3; Bac. Ab. Abatement, B. X; see 
 
 CI. 89; 1 Wentw. 50; and Index, 11. the form Lutw. 6, 1529; 3 lust. CI. 23; 1 
 
 (i) Ast. Ent. 8; 3 Inst. CI. 75, &c.; 1 Wentw. Index, 7; 1 East, 634. 
 Wentw. Index, 11; Bac. Ab. Abatement, L.; 
 
 (1) Doe II. Penfield, 19 Johns. 308; Boston Type Foundry v. Spooner, 5 Vermt. 93; Doe v. 
 Penfield, 19 Joha. 308; Campbell v. Galbreatb, 5 Watts 423. 
 
 (2) Alexander v. Davidson, 2 M'MuUen, 49; Camden v. Robertson, 2 Scammon, 507; Hum- 
 phreys V. Irvine, 6 Smedes & Marsh. 205. But the death of the lessor in ejectment does not 
 abate the suit. Frier v. Jackson, 8 Johns, 495. Where an action is brought in the name of 
 the judges of the "county Court" and the court is abolished, it is a good plea in abatement, 
 that there are no such judges. Judges v. Phillips, 2 Bay, 519. 
 
 (3) Bell V. Chapman, 10 Johns. 133; Jackson v. Decker, 11 Johns. 418$ Hutchinson v. Brock, 
 11 Mass 119; Levine v. Taylor, 12 Mass. 8; Parkinson v. Wentworth, 11 Mass. 26; Russell v. 
 Skipwith, 6 Binn. 241; Baywell v. Babe, 1 Rand. 282; Clarke v. Morey, 10 Johnsi 69; Coiet). 
 Galiok, 6 Halst. 328; Brinley v. Avery, Kirby, 25. 
 
448 OP PLEAS 
 
 I. BELATiNG defendant may plead in abatement that the plaintiff is under a prsmunire 
 
 TOTHEPER- ^^^ . Qj. excommunicated (r) ; or that the plaintiff (unless he sue with 
 others as executor) is an infant, and has declared by attornes (s) (1), and 
 this is the proper mode of taking advantage of the objection in the case 
 of plaintiffs {I) (2). The effect of the bankruptcy of the plaintiff pending 
 
 [ *449] the *suit has been already noticed (m). When a. feme covert has no in- 
 terest whatever in the subject-matter of the action, and consequently ought 
 not to be made a party, and she sues either with or without her husband, 
 the defendant will obtain a nonsuit on a plea in bar- of her coverture, or a 
 plea in replevin that she had no property in her goods {x). Cut 'where 
 the feme was legally interested before or during her coverture in the sub* 
 ject-matter of the action and might properly join with the husband, .but 
 sues alone, her coverture can only be pleaded in abatement, and cannot bo 
 given in evidence under the general issue, or pleaded in bar ; at least 
 this rule obtains in actions for' torts (y). If the plaintiff taiio husband 
 after suing out the writ, and before the declaration, the defendant can- 
 not give the coverture in evidence under the general issue but must plead 
 it in abatement {z) (3), as matter arising before plea or pending the suit 
 (a) (4). 
 
 Of thede- .pigas in abatement to the person of the defendant (&) are coTcrlure (5); 
 and formerly infancy before parol demurrer, now abolished, but a defend- 
 ant could not avail himself of his own attainder (c). Lvi'erture at the time 
 when the supposed contract was entered into must be pleaded in bar (6), 
 though before the Reg. Gen. Hil. T. 4 W. 4, it might have been given in 
 evidence under the general issue non assumpsit or non est factum (d) ; but 
 
 {q) Co. Lit, 129 b; Com. Dig. Abatement, (0 2 Saund. 212,n. 5. 
 
 E. 7. (») ^nte, 23. 
 
 (r) Lutw. 17; 3 Inst. CI. 18; Cro. Jac. 82; (i) Ante, 28 to 33. 
 
 Bio. Ab. Abatement, B. 2; 1 Wentw. Index; ly) Ante, 28 to 33, 72 to 75. 
 
 Gilb. C. P. 202. In equity, Beames' Eq. PI. (z) 6 T. R 265. 
 
 9, 106, &c. (re) 4 East, 502. 
 
 (s) Bro. R. 475, 476; 3 Inst. 01. 55, 19; (A) \n equity, Beame's PI. Eq. 129. 
 
 Clift. 11; IMod. EQt. 20; 1 Wentw. 58;i£(.In- (c) JlnU, iil. n. (b). 
 
 dex, 10; see the form, 2 Saund. 209 a. (d) 12 Mod. 101; 8 T. E. 545. 
 
 (1) Vide Sohermerhorn u. Jenkins, 7 Johns. 373. Infancy, if plaintiff sue in his own name, 
 and not by guardian or next friend, is a good plea in abatement, but can be excepted to only 
 by plea in abatement. Sohermerhorn v. Jenkins, 7 Johns. 373; Young v. Young, 3 N. Hamp. 
 345; Blood v. Harrington, 8 Pick. 552; Smith w. Van Hinten, 5 Halst. 381; Trask v. Stone, 
 7 Mass. 241; Long ». Whidden, 2 N. Hamp. 435, 487;'Drago v. Moso, 1 Speer, 212. It is a 
 good plea in abatement that the plaintiff was, when the suit was commenced, insane and under 
 guardianship. CoUard v. Crane, Brayt. 18. 
 
 (2) The existence of the plaintiff (corporation) can be contested only by plea in abatement. 
 Boston Type Foundry v. Spooner, 5 Vermt. 93; Proprietors, &c. v. Call, 1 Mass. 485; Parish 
 in Sutton v. Cole, 3 Pick. 236; Conard v. Atlantic Insurance Co., 1 Peters 450; Society, &o. v. 
 Paulet, 4 Peters, 501 ; see Shivers v. Wilson, 5 Har. & J. 130; Edwards v. Ford, 2 Bailey, 461. 
 
 (3) Haines v. Corliss, 4 Mass. ,659; Wilson v. Hamilton, 4 Serg. & R. 238; Gaphill v. Isbell, 
 1 Bailey, 369; Bates v. Stevens, 4 Vermt. 545; Swan v. Wilkinson, 14 Mass. 295; Templeton 
 V. Clovey, 1 Blackf. 288; Chirac v. Reinicker, 11 Wheat. 303; Northum v. Kellogg, 15 Conn. 
 569. If a feme sole administratrix marry pending an action commenced by her, the suit 
 abates. Swan v. Wilkinson, 14 Mass. 295; 5 Greenl. 181. But if she be one of several ad- 
 ministrators, and marry pending an action brought by them all, the action is not thereby 
 abated. Newell v. Maroy, 17 Mass. 341. 
 
 (4) But cooerture of the plaintiff, since the bringing of the suit cannot be pleaded after a 
 plea in bar; unless it takes place after the plea in bar, in which case it may be done; but 
 the defendant must not suffer a continuance to intervene between the happening of this new 
 matter, or its coming to his knowledge, and pleading it. Wilson v. Hamilton, 4 Serg. & R. 238. 
 
 (5) Surtellj). Brailsford,2JJay, 333. - 
 
 (6) Coverture between the parties to the action can only be pleaded in bar, as it is impossi- 
 ble in such a case to give the party a better writ. Steer v. Steer, 14 Serg. R. 879. 
 
IN ABATEMENT. 
 
 449 
 
 where the objection does not go to the liability of the feme, but is merely i-eeiatinq 
 that the husband ought to have been sued jointly with her, as where, since person. 
 entering int(^ the coatract, or committing the tort, she has married, she 
 must, when sued alone, plead her covei^ture in abatement, and aver that her • 
 husband is living (e). If the defendant marry after the commencement of 
 the suit, such coverture cannot be pleaded even in abatement (/) (1). 
 To the plea of coverture the plaintiff may reply any matter which affords 
 him a right to sue the defendant alone, although she be a married woman 
 (g-). Infancy might formerly be pleaded in abatement in an action upon a 
 specialty, when the "defendant was sued as heir on the obligation of his 
 ancestor, in which case the parol was to demur, or proceedings be stayed 
 till he comes of age (A) ; but that privilege did not extend to an infant 
 devisee (i) (2), and was finally altogether abolished by 1 W. 4, c. 47, s. 
 10 (A;). 
 
 The uniformity of process act, 2 W. 4, c. 39, subjects peers and mem- Privilege 
 bers of parliavient to a writ of summons, in the same form as ordinary "^^ ?««""• 
 persons, and therefore there cannot be a plea in abatement as *a peer, [ 450 J 
 merely on account of his having been served with that process. A plea 
 of privilege by a peer is therefore more limited than heretofore (/). But 
 if arrested, a peer may obtain his discharge, or his bail may be discharged 
 on summary application (/) (3). A peer cannot now plead »ifs«omer any 
 more than any other subject (m). 
 
 Pleas in abatement to the count could only be pleaded in actions by ^- iielat- 
 original writ. The first act of the parties after appearance and admission couju ^^^ 
 of the jurisdiction of the Court over the subject-matter of the cause, and 
 of the ability of the plaintiff to sue and the defendant to be sued, is the 
 declaration or count, after which formerly the defendant might demand 
 oyer of the writ, and then the same being set forth on the roll, if there 
 were any variance between the count and the writ, or between the writ 
 and a record, specialty, &c. mentioned in the count, the defendant might 
 plead such variance in abatement or demur, move in arrest of judgment, 
 or sustain error (w). But as a variance between the writ and count could 
 in no case be pleaded without craving oyer of the writ (r;), and the de- 
 fendant cannot now have such oyer (/>), the variance or defect is no long- 
 er pleadable in abatement, and if it be pleaded, the plaintiff may sign 
 judgment, or move the Court to set it aside {q) ; nor will the Court set 
 aside the proceeding in respect of the variance (r). 
 
 (e) Artie, 59, 92, 93. (m) 8 & 4 W. 4, c. 42, s. 11 & 12 and post. 
 
 (/) BiU!. Ab. Abatement, G.; 2 Stra. 814; (n) 2 Wils. 394; Com. Dig. Abatement, G. 
 
 etmde Lofft, 27; 2 Ld. Raym. 1525. 8; 3 Inst. CI. 62; Pleg. pi. 277, 278. 
 
 (g) See Ante, 57 to 69. (o) 2 Wils. 894, 395. 
 
 (ft) Supra. (p) See ante, 244, 430. 
 
 (t) 4 East, 485. (q) 1 B. & P. 616, 647; 8 7rf.,395; 7 East, 
 
 (fr) See the enactment, ante, 417. 383; Tidd, 9tli ed. 636; Steph. 2d ed, 70. 73. 
 
 (0 8 Bing. 54, 174, 416. (r) 2 Wils. 393 ; 3 East, 167 ; ante, 253, 244. 
 
 (1) Crocket o. Ross, 5 Greenl. 445 ; Commonwealth «. Phillipsbury, 10 Mass. 68; Hender- 
 Bon V. M'Clure, 2 M'Cord, 469. 
 
 (2) It has been held, in Connecticut, that the privilege of the defendant as a member of 
 the legislature, was pleadable in abatement. King v. Coit, 4 Day, 129. It is a good cause 
 for abating a writ, that the defendant was arrested at a time when he was privileged from 
 arrest. Hubbard v. Sanborn, 2 N. Hamp. 468; Grand v. Bedinger, 4 Monro, 539. Or 
 that he was served with process in any way while privileged from suits. Van Alstyne ». 
 Dearborn, 2 Wend. 686; Halsey v. Steward, 1 South. 366; Greening v. Sheffield, Minor. 
 276. , 
 
 (3) A privilege from arrest must be pleaded in abatement. Grove v. Campbell, 9 Terger, 7. 
 
WBIT. 
 
 450 • OF PLEAS 
 
 in. EEiAT- Pleas in abatement to the writ or bill are so termed rather from their 
 iNG TO THE gj^gf.^ j^ian from their being strictly such pleas, for as oyer of the writ can 
 no longer be craved (1), no objection can be taken by plea to matter which 
 is merely contained in the writ (s). But if the mistake in the writ be car- 
 ried into the declaration, or rather if the declaration which is presumed 
 to correspond with the writ, be incorrect in respect of some extrinsic mni- 
 ter, it is then open to the defendant to plead in abatement to the writ (<) 
 (2) ; and there is no plea to the declaration alone but in bar (m). Pleas 
 in abatement of the writ or bill are to the form or to the action thereof (x) : 
 those of the first description were formerly either mStter apparent on the 
 face of the writ or bill {y) (3), or matter dehors (2). Formerly a defect 
 ii:i the form of the writ, apparent on the face of it ; as repugnancy, vari- 
 ance from the record or specialty, want of sufl&cient time between the teste 
 and return (a), or in actions by original, the omission or mistake in the 
 
 (s) ^vte, 244, 430. (!/) Com. Dig. Abatement, H. 1. 
 
 (0 1 B. & P. 648; 10 Mod. 210, 211. (z) Com. Dig. Abatement, H. 17. 
 
 {u) 10 Mod. 210; 2 Saund. 209 b. (a) 1 Lutw. 25; 3 Inst. CI. 49, 64, 66, 
 
 (x) Rule Com. Dig. Abatement, H. 1 , 17. &o. 
 
 (1) Tuolter v. Perley, 5 N. Hamp. 345. 
 . (2) Sohenck v. Sohenok, 6 Hulst. 274; Chirac v. Reinioker, 11 Wheat. 302. Variance be- 
 tween the writ and the declaration is matter of abatement or special demurrer. Newlin v. 
 Palmer, 11 Serg & Rawle, 98; Giles u. I'erryman, 1 Har. & Gill. 164; Duvall u. Craig, 2 
 "Wheat. 45; White v. Walker, 1 iMonro, 35; Haney ». Townsend, 1 M'Cord, 207; Garland v. 
 Chattle, ]i! Johns. 530; Palmer d. M'Ginnis, Hardin, 505; Prince d. Lamb, 1 Breese, 298; 
 Bank of New Brunswick v. Arrowsmith, 4 Halst. 284; Young v. Gray, 1 M'Cord, 211; Stod- 
 dard V. Cockran, 6 N. Hamp. 160. 
 
 (3) Where the declaration is a necessary part of the writ, (as itiis in N. Hampshire and Mass- 
 achusetts, &c.), it is cause of abatement that when the writ was served, it contained no declara- 
 tion. Biigham v. Este, 2 Pick. 420; Rathbone v. Rathbone, 5 Pick. 221. 
 
 A writ must have the seal of the court from whence it issues. Hall ij. Jones, 9 Pick. 446; 
 Governor v. M'Rhea, Hawkes, 226; Smith v Alston, 1 Rep. Con. Ct. 104. 
 
 Where a blank writ has been used but not been served, it may be altered and made return- 
 able at another term, Dearborn v. Twist, 6 N. Hamp. 46. 
 
 A seal cannot be torn from one writ which has been filled up and attached to another. Fil- 
 kins V. Brookway, 19 Johns. 170. A writ which has been served and returned, cannot be used 
 again. Towner v. Phelps, 1 Root, 250. 
 
 As to writs with no teste, or a wrong one, see Hawks v. Kennebec. 7 Mass. 461; Ripley v. 
 Warren, 2 Pick. 592; Buchannon v. Kennon, Cam. & N. 476; Dudley v. Carmott, 1 Murph. 
 339. 
 
 Defective service or process can be objected to only by motion or plea in abatement. It is too 
 late after pleading in chief. Frankfort Bank v. Anderson, 3 Marsh. 1 ; M'Crea v. Starr, 1 
 Murph. 339; Payne v. Guyn, 2 Munf. 297; Pollard v. Picket, 4 Craneh, 421; Farrar v. tJ. 
 States, 3 Peters, 459; Litton v. Parker, 4 N. Hamp. 142; Morse v. Cabley, 5 Id. 223; Car- 
 lisle V. Weston, 21 Pick. 535; Simonds v. Parker, 1 .Metcalf, 508. 
 
 It is otherwise with void process. Coleen v. Liggins, 1 Breese, 3, and service, Hart v. Huch- 
 ins, 6 Mass. 399. ' 
 
 As to defecti-ve service of a writ, see Brewer ». New Gloucester, J4 Mass. 216; Parish in 
 Sutton V. Cole, 8 Mass. 96; Brown v. Gordon, 1 Greenl. 165; Dunmore Manuf. Co. v. Rock- 
 well, Brayt. 18; Wood d, Ross, 11 Mass. 271; Hearsay v. Bradbury, 9 Mass. 95; Gardner v. 
 Barker, 12 Mass. 36; Guild v. Richardson, 6 Pick. 364; Tingley v. Bateman, 10 Mass. 
 343; Sill v. Bank of U. States, 5 Conn. 102; Nelson u. Omaley, 6 Greenl. 218; Slayton 
 V. Chester, 4 Mass. 478; U. S. Bank «. Taylor, 7 Vermt. 116; Foster v. Haddock, 6 N. 
 Hamp. 217; Taylor v. Cooke, Coxe, 64; Cavendish u. Turnpike Co, 2 Vermt. 631; Gilbert 
 v'. Nantucket Bank, 5 Mass. 93; Wheeler v. Lampmau, 14 Johns. 481; Den ». Ezel, 4 Hayw. 
 162. 
 
 As to defective indorsements, and effects of writ not being indorsed, see Whiting v. Hol- 
 lister, 2 Mass. 102; Gilbert v. Nantucket Bank, 5 Mass. 97; Stevens v, Getchell, 2 fairf. 
 443; Clapp v. Balch, 3 Greenl. 216; Harmon v. Watson, 8 Greenl. 286; Bobbins v. Hill, 
 12 Pick. 569; Grosvenor v. Danforth, 16 Mass. 74; Tracy v. Perry, 6 N. Hamp. 172; Pat- 
 ter V. Mayo, 2 Greenl. 239; Steward v. Riggs, 9 Greenl. 51; Hartwell v. Hemmenway, 7 Pick. 
 717; Clarke v, Paine, 11 Pick. 66; Strattonji. Foster, 2 Fairf. 467; Stevens v, Getchell, 2 
 Fairf. 444. • 
 
IN ABATEMENT. . •451 
 
 . writ of the defendant's addition {b), either of estate, degree, mystery, or "i- keiat- 
 place of abode (c), were pleadable in abatement ; but as oyer of the writ 'J"" '"^ "^^ 
 can no longer be had, an omission of the defendant's addition, which is 
 not necessary to be stated in a declaration, can in no case be pleaded in 
 abatement ; and if it be, the plaintiff may sign judgment or apply to the 
 Court to set the plea aside ((^). •' & -^ s ffj 
 
 Pleas in abatement to the form of the writ therefore of late years were. To the 
 and still are, principally for matter rfeAors (e), existing at the time of formal the 
 suing out the writ or arising afterwards (/) such as mwwomej- of the plain- '""'" 
 tiff or the defendant in his christian or surname. Such pleas of misnomer 
 have recently been abolished by 3 <fe4 W. 4, c. 42, s. 11, but still it may 
 be advisable concisely to notice the subject. 
 
 What in law amounted to a misnomer has been already pointed out Misnomer 
 (^) (!)• It was once doubted if a mistake of the plaintiff's christian 
 or eurname were not a ground of nonsuit, but it is now settled that the 
 mistake must be pleaded in abatement even in the case of a corpora- 
 tion (h) (2) ; and this objection could not be pleaded unless the misno- 
 mer also appeared in the declaration (i), for the plaintiff might declare 
 in his right name though the name had been mistaken in the process (3). 
 The misnomer of one of several plaintiffs was pleadable in abatement (A). 
 Misnomer of the defendant must also hav6 been pleaded in abgite- 
 ment (Z) (4). But misnomer of another defendant could not be pleaded by' 
 his companion (m) (5) ; and if the declaration were against the defend- 
 ant in his right name, though varying from that in the writ, he could not 
 plead in abatement (w) (6). In an action for a toft, the niisnomer of one 
 
 (i) 1 Hen. 5, o. 5; 3 CI. 92; Lil. Ent, 5; B. & B. 34. If the mis-statement ofa name 
 
 2 Rich. C. P. 5, 8; 1 Stra. 556 j Ld. Raym, constitute a Tarianoe in setting out a written 
 
 1541; 2 Inst. 668.. contraet.it will be fatal under the general is- 
 
 (c) 3 B. & P. 395. sue, 4 T. R. 611; Chitty on Bills, 7th edit. 353. 
 
 (d) ISaund. 318, n. 3; anfe, 244, 430. (i) 1 B. & P. 645. As to moving the 
 (c) Com. Dig. Abatement, H. 17, &c.; Gilb. Court to set aside the proceedings, ante, 247. 
 
 C.P. &■[. (fe) 8M. &Sel. 45. 
 
 {/) Com. Dig. Abatement, H. 17, 32. (l) Bao. Ab. Abatement, 9; Misnomer, F.; 
 
 {g) Ante, 244. Com. Dig. Abatement, F. 17, 18; and 2 Bla. 
 
 <A) IB. & P. 40; 3Anstr. 935; 3 Campb. Rep. 120. See the forms, post, rol. iii.; 
 
 29; 16 East, 110. The misnomer of the lutw. 10 ; Lil. Ent. 6 ; 2 Rich. Prac. 4, 
 
 plaintiff is no ground for setting aside pro- (m) Lutw. 36. 
 
 ceedings, it must be pleaded in abatement, 2 (n) 1. B. & P. 645; 3East, 167; ante,2i6. 
 
 (1) Ante, 302, note. 
 
 (2) Vide Medway Cotton Manufactory v. Adams, 10 Mass. 360. It is a good plea in 
 abatement that a party sues or is sued by his surname only. Chappel v. Proctor, Harper, 
 49; Seeley v. Boon, Coxe, 138; Labutt v. Ellis, 1 Taylor, 148. Misnomer must always be 
 pleaded in abatement Smith v. Bowker, 1 Mass. 76; Gilbert v. Nantucket Bank, 5 Mass. 97; 
 Jewett V. Burroughs, 15 Mass. 469; Pate v. Bacon, 6 Munf. 219; Porter v. Cresson, 10 Sere. 
 &R,257. 
 
 (3) Contra Willard v. Massani, Cow. 37. 
 
 (4) Thompson v. Elliott, 5 Missouri, 118; Salisbury u. Gillett, 2 Scammon, 290; Lynes v. 
 State, 5 Porter, 236; Carpenter v. State, 8 Missouri, 291; Commonwealth v. Lewis, 1 Metcalf, 
 151; Christian Society v. Macomber, 8 ib. 235. So, a corporation defendant cannot take 
 advantage of a misnomer, in arrest of judgment, but must plead in abatement. Gilbert v. 
 Kantucket Bank, 5 Mass. 97;. Trustees of M. E. Church v. Tryon. 1 Denio, 451; Gray v. Mo- 
 nongahela Nav. Co. 2 Watts & Serg. 156. 
 
 (5) Atkinson v. Clapp, 1 Wend. 71. Nor can he plead in abatement any matters applica- 
 ble to himself alone. De Forest v. Jewett, 1 Hall, 136. 
 
 (6) A defendant cannot plead in abatement because of an alias dictus subjoined to his 
 name. Reid v. Lord, 4 Johns. 118. Where a name appears to be a foreign one, a variance 
 of a letter which aoeording to the pronunciation of that language, does not vary the sound, 
 is not a misnomer, as Petris for Petrie. Petrie v. Woodworth, 5 Cairies, 219. As to idem, 
 sonans, see further The 5ing i>. Shakespeare, 10 East, 83; Dickenson v. Bowes, 16 East, 
 
 Vol. I. 60 
 
451 a OP PLEAS 
 
 m. BELAT- defendant could only abate the suit as to him, and not as to his compan- 
 ^gjj™™'^ions (o). The consequences of a misnomer of the defendant, and th^e 
 course he should pursue in order to take advantage of the error have been 
 before explained Q)) (1). 
 
 Pleas in abatement of misnomer were abolished by 3 & 4 W. 4, c. 42, 
 [ *452 ] s. 12, and another remedy for mis-statement of names is invented by *that 
 act. S. 11 enacts, " that no plea in abatement for a misnomer shall be 
 allowed in any personal action, but that in all cases in which a misnomer 
 would but for this act have been by law pleadable in abatement in such 
 actions, the defendant shall be at liberty to cause the declaration to be 
 amended, at the costs of the plaintiff, by inserting the right name ; upon a 
 judge's summons founded on an af&davit of the right name ; and in case 
 sijch summons shall be discharged, the costs of such application shall be 
 paid by the party applying, if the judge shall think fit." 
 
 Section 12. " That in all actions upon bills of exchange and promissory 
 notes, or other written instruments, any of the parties to which are desig- 
 nated by the initial letter or letters or some contraction of the christian or 
 first name or names, it shall be sufficient in every affidavit to hold to bail 
 and in the process or declaration, to designate such person by the same 
 initial letter or letters or contraction of the christian or first name or names, 
 instead of stating the christian or first name or names in full. 
 Other Other pleas to the form of the writ are, that the plaintiffs or defendants 
 
 pleas of suing, or being sued, as husband and wife, are not married (g) (2) ; or that 
 one of the plaintiffs or defendants was fictitious or dead at the time of is- 
 suing the writ (r), or any other plea for want of proper parties (s), as a 
 
 this nature. 
 
 (o) 1 M. & P. 26. a fresh afSdavit of debt, as required by 
 
 (p) Ante, 246. Whereto an action of as- that statute; the plea was held bad on special 
 
 sumpsit against the defendant as acceptor of a demurrer, as it did not go to the merits of the 
 
 bill of exchange for £15, he pleaded, after set- action, and as the defendant might either have 
 
 ting out the 51 G. 3, c. 124, that the plaintiff pleaded in abatement or moved to set aside 
 
 sued ont a vrrit of capias ad respandendvm the proceedings for irregularity, 5 Moore, 
 
 against him by the name of "Joseph" for £15, 168. 
 
 on an affidavit of debt made by the plaintiff's (g) Com. Dig. Abatement, E. 6; 3 Inst. CI. 
 
 clerk, under which the defendant vras arrested, 69 ; 1 Wentw. Index, 12. Sed quare if this 
 
 and afterwards allowed to go at large by the can be pleaded, see 2 Chit. Rep. 642. 
 
 sheriff ; that the writ was afterwards altered (r) 1 Boot. Plac. 12; Bac. Ab. Abatement, 
 
 by inserting the name of " Robert " (the real L. 
 
 name of the defendant) instead of " Joseph" (s) Ante, Chap.. I. Parties to the action, 
 
 under which he was again arrested under per totum. 
 
 110. Ahitbol V. Beneditto, 2 Taunt. 400. An initial letter between the christain and sur- 
 name of the party, is no part of the name, and the omission of it is not a misnomer or variance. 
 Franklin v. Talmadge, 5 Johns. 84. But in New Jersey in an action before a Justice of the 
 Peace, theplaintiff, if he has a middle letter in his name (J. S. M.) must take care to insert it 
 in his summons, for if he does not, and obtains judgment against the defendant in consequence 
 of his not appearing, the judgment will be reversed, although the state of demand filed contains 
 the plaintiff's true name. Bowen v. Meilford, 5 Halst. 230. The plaintiff may reply that the 
 defendant is known as well by one name as the other. Petrie v. Woodworth, 3' Caines, 219; 
 Goodenow v. Tappan, 1 Ham. 61; Gould tj. Barnes, 3 Taunt. 505. An administrator sued as 
 executor may plead the intestacy and granting letters of administration, in abatement. Rat- 
 toon V. Overouker, 8 Johns. 126. 
 
 (1) The omission of junior to the name of the defendant in a writ of error is no cause for 
 quashing the writ, where there is any other descriptio persona by which the real party can be 
 ascertained. Fleet d. Younge, 11 Wend. 522. Tlie addition of junior forms no part of the 
 name. Kincaid v. Howe, 10 Mass. 203; Vide 3 Pet. U. S. S. C. R. 1; Commonwealth v. Per- 
 kins, 1 Pick. 388. The middle letter forms part of the name. Commonwealth o. Perkins, 1 
 Pick. 388; Commonwealth v. Hall, 3 Pick. 262; Regina D.Douglass, 1 Carr. & Marsh. 193; Ro- 
 gina V. Gooding, 1 Carr. & Marsh. 397; Bull v. Franklin, 2 Speer, 46; Taylor o. Rossiter, 2 
 Miles, 355; Hyde v. Watson, 1 Denio 670; but soe Reene v. Meade, 3 Peters, 8. 
 
 (2) See Coonjbes v. Williams, 16 Mass. 248, 
 
IN ABATEMENT. 452 
 
 joint contractor (0, or another executor (m), or administrator (a;), or other "'• kelat- 
 persons (?/) not joined, who ought to have been made parties to the suit, ^g^ 
 The plea in abatement of nonjoinder must always have averred that the jf(,„ .^n. 
 party omitted is still living \z) (1). "We have already seen, when con- dei. 
 sidering the parties to the action, that in actions on contracts the nonjoin- 
 der of a party who ought to be made co-plaintiff will in general be the 
 ground of nonsuit, and need not, though it may, be pleaded in abate- 
 ment (a) ; but that in the case of executors and others suing jure repre- 
 sentationis, (except assignees of a bankrupt) (&) , the omission can only 
 be pleaded in abatement (c) ; and that the nonjoinder of a person who • 
 ought to be made co-plaintiff in an action in form ex delicto, as case, tro- 
 ver, trespass, &c. can only *be pleaded in abatement (d). And we have [ *453 ] 
 seen that with regard to defendants, the omission of a joint contractor 
 must be pleaded in abatement (e) (2) ; and that in actions for torts no 
 advantage whatever can in general be taken of the nioujoinder of the de- 
 fendant (/). 
 
 A most important and salutary check on pleas in abatement of non- 
 joinder was introduced by 3 & 4 W. 4, c. 42, s. 8, which enacts that no 
 plea in abatement for the nonjoinder of any person as a co-defendant shall 
 be allowed in any Court of common law, unless it shall be stated in such 
 plea that such person is resident within the jurisdiction of the Court, and 
 unless the place of residence of such person shall be stated with conveni- 
 ent certainty in the afiidavit verifying such plea. 
 
 Pleas by attornies heretofore sued in their own Court by improper pro- 
 cess as by lajiitat in the King's Bench, or by a common capias in the Cfom- 
 mon Pleas, instead of a bill against them as such attornies, may also be 
 classed under pleas in abatement to the form of the writ {g). But as the 
 uniformity of the process act, 2 W. 4, c. 34, now subjects attornies to 
 be sued by the, same form of writ of summons as other persons, a 
 plea of that description is now abolished. There are two ways of 
 pleading an attorney's privilege ; first, with a profert of a writ of privilege, 
 or of an exemplification of the record of his admission ; upon which the plain- 
 tiff must reply nul tiel record, and cannot otherwise deny the defendant's 
 
 (() Davis V. Esam, 6 Car. & P. 619. (c) Ante, 50; Saund. 291 g; 3 B. & P. 465. 
 
 (u) Com. Dig. Abatement, E. 8, F. 4, &o.; (d) Ante, 66. And the rejoinder in tkis 
 
 S Inst. CI. 51; Kast. Eut. 325 a; 1 Wentw. 9; case is only ground for plea in abatement, al- 
 
 Reg. 140; 1 Lev. 161; 1 Sid. 242. though tiie declaration show that there is an- 
 
 (x) 3 Inst. CI. 53; Rast. Ent'. 324. other party interested jointly with the plain- 
 
 (y) 3Ipst. CI. 53, 119; 1 Lutw. 696; 1 tiff, 6 T. K. 766. 
 
 East, 634; 1 Wentw. 10, 11; Index, 12. (e) Ante,i6. 
 
 («) 1 Saund. 291 a, note 2. {f\ Ante, 87. 
 
 (a) Ante, 13. (g) See post, vol. iii.; 7 Lutw. 639; 12 
 
 (6) Ante, 23; 1 Chit. Eep. 71; 2 Stark. East, 544; Davidson d. Chilman, 1 Bing. N. 
 
 . 424. C. 297. 
 
 (1) The parties not joined should be particularly set forth and described, so as to enable the 
 plaintiff to make a better writ. Wadsworth «. Woodford, 1 Day, 28. tVhere judgment by 
 default has been obtained, if the writ be against two or four joint and several promissors, and 
 it is shown in the writ that four promised, it is material also to show that the other two are 
 dead, or otherwise incapable of being sued, or the judgment will be reversed, Harwood v. Rob^ 
 erts. 5 Greenl. 441. See Osgood v. Spencer, 2 Har. & Gill. 131. 
 
 (2) Stovey v. M'Neill, Harper, 173; Horton v. Cook, 2 Watts, 40 ; Moore v. Russell, 2 Bibb. 
 443; Winslow v. Merrill, 2 Fairf. 127; Brown v. Warram, 3 Har. & Johns. 672; Powers v. 
 Spear, 3 N. Hamp. 35; Gay v. Cary, 9 Cowen, 44; Coffee o. Eastland, Cooke, 159; Maokall v. 
 Roberts, 3 Munro, 130; M'Arthurv. Ladd, 5Ham. 517; Couley v. Good, 1 Breeze, 96; Allen v. 
 Sewell, 2 Wend. 327; M'Gregor v. Baloh, 17 Vermont, 552; Neally v. Moulton, 12 N. Hamp. 
 485; Harrow v. Dugan, 6 Dana, 341. 
 
453 OB PLEAS 
 
 in. KEiiA*- being an attorney : secondly, as a mere matter of fact, ■without a proferrt ; 
 iTO TO THE g^jj^ ^jjgjj ^ certiorari, shall be awarded, to certify whether he be an attor- 
 ney or not (A). The present form of a plea of privilege to be sued in his 
 own Court, will be found in the third volume. The plea of privilege to be 
 sued in his own Court, must be verified by aflSdavit (i). A person sued 
 as an attorney may plead that he is not one, if such be the fact (/c). 
 To the ac- Pleas in abatement to the action of the writ, are, that the action is mis- 
 iion of the conceived, as that it is in case when it ought to have been in trespass (/) : 
 ^^' ' or that it was prematurely brought {m) ; but as these matters are the 
 ground of demurrer or nonsuit, it is now very unusual to plead them in 
 abatement (n) . It may also be pleaded that there is another action depend- 
 [ •454 j ing for the same trespass (o) or other cause of *action, in the same or in 
 any other superior Court at Westminster (p) (1); but the pendency of ano- 
 ther suit in the sheriff's or other inferior Court, it is said cannot be plead- 
 ed (^q) (2). In general the pendency of a former action must be pleaded 
 in abatement (3) ; but in a penal action, at the suit of a common informer, 
 the priority of a pending suit for the same penalty in the name of a third 
 person, may be pleaded in bar, because the party who iirst sues is en- 
 titled to the penalty {r) (4). In the latter case the plea, when the two 
 suits were commenced in the same term, should show the precise day 
 or time when the prior suit was commenced (s) (5). The plaintiff cannot, 
 
 (ft) Tidd, 9th ed. 635; 9 East, .424. Abateioeiit, M. See the forms, pos<, toI. iii. 
 
 (i) Davidson D. Chilman, 1 Bing. N. C. 297, In an action by the assignees of a bank- 
 
 post. rupt, the defendant cannot plead the pen- 
 
 (fe) 1 Wentw. 6 ; Prac. Reg. 8. denoy of an action by the bankrupt, 4 B. & 
 
 (l) 3 Inst. CI. 120, &o. i Com. Dig. Abate- C. 920. . 
 
 ment, G. 5. (?) 5 Co. 62; 2 Wils. 87; Fitzgib. 313; 
 
 (m) Com. Dig. Abatement, G. 6. Action, Bac. Ab. Abatement, M. ; Com. Dig. Abate- 
 
 E.; Lutw. 8, 13; 3 Inst. CI. 56; Fortesc.334; ment, H. 24; 2 Ld. Raym. 1102; sed qucere, 
 
 Clift. Ent. 10, 18, 19; sed qu. Ld. Raym. if it were alleged that the i)»/en'or court had 
 
 1249. jurisdiction, Fitzgib. 314. 
 
 (m) See the instances of misjoinder.onie, 199. (r) Sayer's Rep. 216; and post, vol. iii. 
 
 (0) 1 Campb. 60, 61. (s) 3 Burr. 1428; 1 Bla. Eep. 437; 2 Lev. 
 (p) Com; Dig. Abatement, H. 24; Bac. Ab. 141; 2 Stra. 1196. 
 
 (1) A writ of error pending may be pleaded in abatement of a suit upon the judgment. 
 Jenkins u. Pepoon, 2 Johns. Cas. 312. A suit subsequently commenced can never be pleaded 
 in abatement. Eenner & Bussard v. Marshall, 1 Wheaton, 215. In New Jersey, under the 
 statute "concerning obligations &o" (Revised Laws, 305,) a defendant may plead in abate- 
 ment, "that another action had been previously commenced by him against (he plaintiff, in 
 Vfhioh the matters mentioned in the plaintiff 's declaration might be set off." Schenck v. 
 Schenck, 5 Halst. 276. See Douglass v. Hoag, 1 Johns. 283, apd Townsend v. Chase, 1 Cow. 
 116, as to a similar plea in actions before Justices of the Peace under the statute for the recov- 
 ery of debts under twenty-five dollars. See also Purdoa's Digest, (Laws of Penn.) 453, s. 17. 
 edit. 1824. 
 
 (2) But see Johnson v. Bower, 4 Hen. & M. 487. An action pending in a foreign court, 
 or in the court if another of the United States, or in the court of the United States, in another 
 circuit and district, cannot be pleaded in abatement. Bowne v. Joy, 9 Johns. 221 ; Newell v. 
 Newton, 10 Pick. 470; Walsh v. Durkin, 12 Johns. 99. But the pendency of another action 
 for the same cause in the Circuit Court of the United States having jurisdiction, is a good 
 plea in abatement in the State courts for the same district. Smith v. Atlantic Mut. Fire Ins. 
 Co., 2 Foster, (N. H.) 21. So a foreign attachment pending in another State, at the suit of a 
 third person against the subject-matter of the action, may be pleaded in abatement. Embree v. 
 Hanna, 6 Johns. 101; Bowne «. Joy, 9 Johns. 221; Eagle v. Nelson, 1 Penn. 442; Scott v. 
 
 .Coleman, 8 Litt. 349; Contra in Mass. and Vermont. Winthrop v. Carlton, 8 Mass. 466; 
 Morton v. Webb, 7 Vermt. 124. 
 
 (3) Davis V. Granger, 3 Johns. 259; Percival v. Hiokey, 18 Johns. 257; Smock v. Graham, 
 1 Blackf. 214; Logs of Mahogany, 2 Sumner, 489; Buffum v. Tilton, 17 Pick. 510. Rogers v. 
 Hoskins, 15 Georgia, 270. 
 
 (4) Engle v. Nelsouj 1 Penn. 442; Anderson v. Bang, 2. J. J. Marsh. 281; Bendlestone v. 
 Sprague, 6 Johns. 101; Commonwealth v. Churchill, 6 Mass. 174; 6 Mass. 348. 
 
 (6) Two suits were brought on a promissory note payable to B. who at the execution of 
 such note, was the wife of A. ; — one by A, in his individual aapacity, the other by A. as 
 
m ABATEMENT. 454 
 
 after a plea in abatement of the pendency of a prior silit, dvoid the effect ™- «™at, 
 of a plea by discontinuing the first action which was pending at the time ^il™ ™^ 
 of theplea(0 (!)• 
 
 The form of a plea in abatement before the receipt pleading rules of Hil. ^'^ *'** 
 T. 4 W. 4, was as follows, excepting that the commencement and conclu- g°Jeml 
 sion varied when the plea was of privilege to be sued in a particular Court qualities 
 and in some other respects, as will be seen on examination of the forms of "?'* "9"'- 
 pleas in abatement in the commencement of the third volume (m). vZaln 
 
 Abatem ent 
 In the King's Bench, [ " or C. P." br " Eiohequer of Pleas."] ^"''°} "^ 
 
 On the— day of — -^,1836. ^^^^^ 
 
 C. D. r And the defendant [or " C. D."] by Y. Z. his attorney, {or " in person," or Com^nce" 
 
 ats. J " by E. F. admitted by the said Court here as guardian of the defendant, to ^,gjjj. 
 
 A- B. ^defend for him, he being an infant within the age of twenty-one years,"] prays ]j„^„' 
 
 judgment of the said writ and deolatation, because he says that [here state the subject-matter Oondiision 
 of the plea in abatement as set forth in the third volume, post.'] 
 
 And this the defendant is ready to verify, wherefore [or sometimes as in pleas of nonjoinder 
 are here inserted " wherefore inasmuch as the said 0. P, is not named in the said writ and dec- 
 laration, together with the defendant,"] he prays judgment of thesaid writ and declaration and 
 that the same may be quashed, &o; 
 
 John Hulme. 
 [The signature of the Counsel.] 
 
 Prom a very cursory observation of the above {orm, it will be seen that 
 pleas in abatement are to be considered with reference to, 1st, The title 
 of the Court ; 2(Jly, The title as to date ; 3dly, The title as to the mar- 
 ginal statement of the parties ; 4thly, The commencement of the plea, 
 showing whether the defendant appears and 'pleads in person or by attor- [ *455 i 
 ney or by guardian, and whether the plea is to profess to make any and 
 what defence, as whether /mZ^ or Aa^ defence, and whether there is to be 
 any and what prayer of judgment; 5thly, The body 3r substance of t]ie 
 plea with or without any and what certainty as to time or place; 6thly, The 
 conclusion, with any and what prayer of judgment ; 7thly, "Wlien the sig- 
 nature of counsel is necessary and consequences of an omission ; 8thly, 
 When any and what affidavit of the truth of the plea is requisite. 
 
 1st, Title of Court. No statute or rule requires a plea in abatement to 1st. Tnu 
 
 ■" ^ 1 r of Pleas in 
 
 Abatement 
 (0 1 S^lk. 329; 2 Ld. Eaym. 1014, S. C; (m) Posi, vol. iii. as to the 
 
 Doct. Pla. 11. Court. 
 
 administrator of B. then deceased; both of which suits were seirved at the same time, re 
 turned to the same Court, and were therein pending contemporaneously. The defendant 
 pleaded these matters in abatement of each silit, averring, that the cause of action in both 
 suits was the same. The allegations of the pleas were found to be true, and the pleas were 
 held to be good, and that of pendency of each suit was good ground in abatement of the other. 
 Beach «. Norton, 8 Conn. 71; Davis v. Dunklee, 9 N. Hamp. 645. See Morton v. Webb. 7 
 Vermt. 124. 
 
 (1) Contra Marston v. Lawrence, 1 Johns. '897. In Commonwealth «. Churchill, 5 • Mass. 
 174, it was held that the plaintiff could not reply a nonsuit in the former action. The en- 
 tries of pleas of this kind generallyj but not always, aver the then pendency of the first 
 writ; but such averment is unnecessary ; and it is sufficient if the first action was pending 
 when the second writ was purchased. And it was not necessary that the first should be 
 pending when the plea was pleaded; for if by law it was once abatable, the subsequent 
 nonsuit could not make it good. The principle also applies to qui tarn actions sued by dif- 
 ferent plaintiff's, or to information jui torn for the benefit of different persons, or to a subse- 
 quent indictment to recover the same penalty. The principle is, when the prior action is 
 pending, the subsequent writ is haA ab initio, ib. Froggj). Long, 3 Dana, 157; Parker d. 
 Coloord, 2 N. Hamp. 36. It is otherwise where the first writ was so defective that the second 
 was necessary to secure the demand. Durand v. Cairrington, 1 Root, 355. Rogers ». Hoskins, 
 15 Georgia, 270. Langham v. Thomason, 5 Texas, 127i 
 
455 OP I^LEAS 
 
 F0KM3 asd be entitled at the top or otherwise of any Court, indeed it would seem 
 EEQuisiTEs ^j^^j. ^^|ggg there were several actious depending between the same parties 
 2dly as to ^^ different Courts at the same time, no ambiguity about the proper Court 
 the title of Can well arise; 2dly, as to the title of the term, formerly all pleas, ex- 
 the date, cepting those pleaded puis darrein continuance, pleaded at the sittings of 
 nisi prius or at the assizes, must have been entitled in or as of a term when 
 the Court were supposed to be sitting ; and as pleas to the jurisdiction of 
 the Court and in abatement ought then to be pleaded before a general im- 
 parlance (1), and within four days inclusive after the delivery or filing, 
 and notice of the declaration (.■r), all such pleas must have been entitled, 
 and in general of the term in which the writ was returnable. But if the 
 declaration were delivered or filed in vacation, or so late in the term that 
 the defendant was not bound to plead to it of that term, the defendant 
 might, within the first four days inclusive of the next term, plead to the 
 jurisdiction of the Court, or in abatement (2/), or a tender (sr), entitling, 
 however, his plea of the preceding term (a) ; or he might plead to the ju- 
 risdiction as of the second term, with a general special imparlance, which 
 was we have seen with a saving of all advantages and exceptions whatso- 
 ever (6), or he might plead in abatement in the second term with a special 
 imparlance, which is as a saving of all exceptions to the writ, bill or 
 count (c) (2). And where a bill was filed in the vacation against an attor- 
 ney as of the preceding term, with a special memorandum showing that 
 the bill was filed in vacation, and the defendant's plea in abatement was 
 entitled of the following term, without a special imparlance, it was held 
 regular {d). If a plea in abatement was improperly entitled of a subse- 
 r *456 1 quent term to the declaration without the proper special imparlance, *the 
 plaintifi' might either sign judgment (e) (3) or apply to the Court by mo- 
 tion to set aside the plea (/), or he might demur generally to it (g), or 
 might allege the imparlance in his replication by way of estoppel (A) ; but 
 if the plaintiff replied to the plea instead of demurring or alleging to es- 
 toppel, the fault was aided (i). 
 Present According to the present practice, all pleas in abatement must be plead- 
 
 ^o^mToP ^^ within four days both inclusive from the day of deUvering the declara- 
 pleading in tion (&), but in some cases further time may be obtained, as in the instance 
 abatement 
 
 and title of (3.) ji^te, 436, 444 ; Tidd, 9th ed. 638, post, voh Hi.; Com. Dig. Abatement, I. 20. 
 pleas. 639; 2M. &Sel.484. Of the four days, the (rf) 1 Chit. Kep. 704, 8 B. & Aid. 259, S. 
 
 first and last were always inclusive.. If Sun- C. 
 
 day be set forth day, the plea might been Mou- (e) 4 T. R. 529; 7 Id. 218, 447, n. d; 2 
 
 day. Tidd, 9th ed. 638, 639. See present Saund. 2 b, n. 2. 
 practice, 3 Chitty's Gen. Prac. 702, 703. (/) 6 T. R. 373 
 
 {y) II. {g) 2 M. & Sel. 484; 6 T. R. 369; 4 Wils. 
 
 (2) Reg. Gen. Hil. T. 2 W. 4 reg. 45. 261 ; 2 B. & P. 184; 3 Inst. CI. 40; 2 Saund. 
 
 (a) Ante, 436, 437; 7 T. R. 447,- noted; 2b, n. 2. 
 
 1 Salk. 367; Gilb. K. B. 344. (ft) 2 Saund. 2 b. n. 2. See the form of 
 
 (b) .anie, 434, 438; Com. Dig. Abatement, • estoppel, 1 Lutw. 23; 1 Wentw. Index, 18; 3 
 1. 19; 2 Saund. 2 a, u. 2. See the&rm, post, Inst. CI. 39; Clift. Ent. 18, pi. 46, 19, pi. 50; 
 \ol. iii. 29, pi. 53, 54. 
 
 (c) Snte, 436, 437; Bao. Abr. Abatement, (i) 2 Saund. 2 b, n. 2; 1 Vent. 436. 
 C; Saund. 2 a, note 2. See the form, irf.,- {k) See 2 Chitty's Gen. Prac. 702.' 
 
 (1) M'Carney v. M'Camp, 1 Ashm. 4. 
 
 (2) Coatea v. M'Camm, 2 Brown, 176; Purple v. Clark, 5 Pick. 206. 
 
 (3) M'Carney v. M'Camp, 1 Ashm. 4. A plea in abatement is too late aftSr a general im- 
 parlance. Whitner v. Schlatter, 15 Sergj & R. 150; CofBn v. Jones, 6, Pick. 61 ; Jennison v. 
 Hapgood, 2 Aik. 31; Chambers v. Haley, Peck. 159; Wyman v. Dorr, 8 Greeol. 186; Hickley 
 V. Smith, 4 Watts, 433; Chamberlain v. Hite, 5 Watts, 173^ 
 
IN ABATEMENT. 456 
 
 of non-joinder of a defendant (/), or where two actions are depending for ^orm and 
 the same cause (m) (1). QUALmEa. 
 
 As the pleading Eeg. Gen. Hil. T. 4 W. 4, reg. 1, orders, " that every 
 pleading shall be intituled of the day of the month and year when the 
 same was pleaded, and shall bear no other time or date," and that rule 
 applies to pleas in abatement as well as pleas in bar, it seems now to be 
 settled that every plea in abatement should be intituled on the verv dav 
 It IS pleaded (2). ^ / 
 
 Although it is the constant practice in the margin of a plea in abate- 3dly. 
 meut to state the surnames of the parties, as thus, C. D. ats. A. B vet Names of 
 no statute or rute expressly requires that form, and if omitted, the plea Pf"'^^^'^ 
 could no doubt be considered as pleaded in the proper action. When owe Ij^'"'"'" 
 of several defendants plead separate, it is usual to state his christian and 
 surname in the margin as sued " together with others," and afterwards 
 throughout the plea to limit to him distinct from the others. 
 
 4thly. The commencement should always eifpressly state whether the 4thiy. The 
 defendant appears and pleads in-^erson or by attorney. Pleas to the ju- commenoe- 
 risdiction must be pleaded in person, because the appointment of an attor- ™*°*' 
 ney of the Court admits its jurisdiction (m) ; but pleas in abatement in 
 general may be pleaded by attorney, because the jurisdiction of the Court 
 in the latter case is not disputed (o). The principle to be extracted from 
 the cases is stated to be, that a defendant cannot plead by attorney in 
 those cases where the doing so would contradict the import of the war- 
 rant of attorney (j)) (3). It appears advisable to frame pleas of misno- 
 mer as if pleaded in person and not by attorney, though there are decis- 
 ions that the plaintiff cannot demur on account of a mistake in this respect, 
 but should refuse to accept the *plea (g-). Coverture also should be [ *457 ] 
 pleaded in person (r). Where an infant pleads, it must be by guardian, 
 and not by attorney or prochein ami (s) ; and this, though he be sued in 
 a representative character, as administrator, &c. (t), and the infant de- 
 fendant may avail himself of the objection on writ of error, though the 
 plaintiff could not (u). 
 
 The nature of defence has already been stated (x). Pleas to the juris» Of defence, 
 diction and in abatement must have been pleaded after half, but before full 
 defence (j*). It was advisable to make the former defence, though it seems 
 questionable whether the plaintiff could demur for the omission, or object 
 
 {I) Id. page 703. Summary Treat, on Pleading, 50, 51. 
 
 (m) Sowteru. Dunston, 1 Man. & Eyl. 508, (r) 2 Saund. 209 b, 
 
 810. (s) 4nie, 428. See the precedents, post, 
 
 (n) Ante,4S2, 444; 2 Saund. 209 b; Sum- -vol. iii. 
 
 mary Treat, on Pleading, 51; Tidd, 9th ed. (i) 1 Moore, 250; 7 Taunt. 488, S. C. 
 
 631. (,() 2 Saund. 212, n. 4; Cro. Jac. 289. 
 
 (0) Ante, 427 ; 2 Saund. 299 b. But the plaintiff cannot. 5 B. & Aid. 418, 
 (p) Summary Treat, on Pleading, 50, &c. (i) Ante, 428. 
 
 (2) Saund. 209 b; 1 Lord Eaym. 509; (y) Ante, 428, 444. 
 
 (1) As to the time of filing pleas in abatement, see 1 Met. & Perk. Dig. Tit. Abatement, oh. 
 
 xm. 
 
 (2) Pleas in abatement cannot be put in after pleas in bar, unless under special circumstan- 
 ces of which the court must judge. Biddle v. Stevens, 2Serg. & 11. 537; Palmer v. Evertson, 
 2 Cowen, 417; Meggs v. Schofler, Hardin, 65; Clapp v. Balch, 3 Greenl. 216; Stone v. Proctor, 
 2 Chip. 114; Ripley r. Warren, 2 Pick. 593; Burnham v. Webster, 5 Mass. 266; Wilson v. 
 Oliver, 1 Stewart, 46; Davis v. Dickson, 2 Stewart, 370. 
 
 (3) Anon. Hayw. 405; Knox v- Summers, 8 Cranch, 496, 
 
457 OP PLEAS 
 
 POEM AND otlierwise than by refusing to accept the plea (z). But now theEeg. Gen. 
 QDAuiiEs. -gj-jj rj^ ^ -^ ^^ expressly orders that no formal defence shall be required 
 
 in a plea, and it shall commence as follows, " the said defendant by ■ 
 his attorney (or ' in person, &c.') says that, &c." And the rule seems to 
 extend to every description of plea whether in abatement or in bar. 
 
 5thiy. Of As pleas in abatement do not deny and yet tend to delay the trial of the 
 the ^i"^^- °^ 11161'its of the action, great accuracy and precision are required in framing 
 and gene- them (c) (1). They should be certain to every in tent (<;?), andbe pleaded 
 raZrequi- without any repugnancy (e). They must in general, &% before explain 
 sites. g^ ^y^^ gj^g |.]^g plaintiff a better writ (g) (2), and if they do not give a 
 
 better writ but tend to show that the plaintiff can maintain no action at all, 
 a plea pleaded as in abatement is bad (A) ; and therefore a plea of misno- 
 mer, in the christian name, before 3 & 4 W. 4, c. 42, s. 11, (abolishing 
 pleas of misnomer), must have stated what the real name, and also the de- 
 fendant's surname, even though the latter had been already truly stated 
 in the declaration (i) For the same reason, a plea in abatement of de- 
 fendant's privilege to be sued as a p6er should show how defendant de- 
 rived his title, and that he is a peer of the united kingdom (A). And a 
 plea in abatement of the nonjoinder as a defendant of a co-executor, must 
 show that the latter became liable to be sued as such, as that he had ad- 
 ministered, &c. (/). This rule, as regards all matters peculiarly in the 
 Icnowledge of the defendant pleading, and which would tend to give a bet- 
 L *'*° J ter writ, is *obviously well founded on principle, but as applying to mat- 
 ter within the knowledge of the plaintiff ought not to be extended. 
 Where the action is by an administrator, stating a grant of administrar 
 tion, from a bishop of a peculiar diocese, a plea of bona notabilia should 
 be in bara.nA not in abatement, because it shows that the plaintiff, at least 
 at present, has no right to sue at all in the character of administrator (m). 
 
 Duplicity in a plea of this description is as objectionable as in a plea in 
 bar; thus the defendant cannot plead two outlawries or two excommunicar 
 tions in abatement, for one would be sufficient to abate the T^rit (w): 
 though formerly misnomer of christian and surname might have been plead- 
 ed in one plea as essential to give the plaintiff ^a better writ (o). The 
 Court will not permit a defendant to plead at the same time in abatement 
 and in bar to the same matter, as non est factum, and coverture of the 
 
 (z) Id; Com. Dig. Abatement, I. 16; (i) 8T. R. 515, 516; Bao. Ab. Misnomer, 
 
 Skinn. 582, F.; 5 Taunt. 653. 
 
 (c) 3 T. R. 186; Willes 42; 2 Bla. Rep. (k) 4 D. & R. 592; and see 8 Bing 55 174, 
 1096; 2 Saund. 309 a, u. 1; Com Dig. Abate- 416; 7 Bar. & Cres. 388; 1 Mood. & r! 110, 
 ment.'l, 11. S. C. ; and 1 Crom. & M. 241. 
 
 (d) As to this, see ante, 238. {I) See 1 Lev. 161; 1 M. & P. 678. 
 
 (e) Co. Litt. 303; Cro. Jao. 82; 3 Lev. 67; (m) 1 Saund. 274, n. 3; see 5 B & 0. 
 3 T. R. 186; Willes, 42. 491. 
 
 (/) Ante, at. (n) Bac. Ab. Abatement, P. 
 
 Ig) Turtle I). Lady Worsly, Tidd, 689. (o) Id. Misnomer, F.; Rep. temp. Hardw. 
 
 (A)4T. B.227. 286,287. 
 
 (1) See Wadsworth V.Woodford, 1 Day, 28; Clark ii. Warner, 6 Conn. 855; Havwood v. 
 Chestney, 13 Wend. 495, . .y" u 
 
 (2) Wilson u. Nevers, 20 Pick. 20. And the plea is not supported, if it appear that one of the 
 persons named in it did not, or that another person not named did join in the promise. Ibid. 
 See Brown c. Jordon, I Greenl. 165; Guild v. Riohardson, 6 Pick. 469; Woodsworth v Wood- 
 ford, Day, 28. 
 
IN ABATEMENT. 459 
 
 plaintiff since making the bond (p) (1) ; but in an action against two de- »osm aotj 
 fendants, each may plead distinct matter in abatement of the same suit (g), ^i'*""' 
 or one may plead in abatement and the other in bar (»•) (2). 
 
 As dilatory pleas rarely affect the merits of the suit, and object mere 
 matter of form, they constitute an exception to the general principle of 
 pleading, that a plea must either traverse or confess and void the alleged 
 cause of action. 
 
 It was not necessary, even before Reg. Gen. Hil. T. 4 W. 4, reg. 8, 
 in a plea in abatement to lay any venue in stating even material facts, be- 
 cause they were to be tried in the county laid in the declaration (s) ; and 
 if it were pleaded that another person who ought to have been sued with 
 the defendant was alive, " to wit, in Spain," the place was surplusage,, 
 and the plea would be considered as pleaded without any venue (<). 
 
 A writ is divisible and may be abated in part and remain good as to the Of piead- 
 residue ; and therefore the defendant may plead in abatement to part, and '"S' i" 
 demur or plead in bar to the residue of the writ or bill. Tor the rule topar<,and 
 seems to be, that if the plaintiff in his action, brought either lipon a gener- in ^«r to 
 al writ, such as debt, detinue, account or the like, or on a certain aiid *'^*"'''^"'' 
 particular one, as assumpsit, trespass, case, &c., demand two or more 
 things, and it appear from his own showing that he cannot have an action 
 or befker writ for one of them, the writ shall. not abate in the whole, but 
 stand for so much as is good : but if it *appear upon his own showing that [ "^SQ ] 
 he has a cause of action for all the things demanded, but the writ is not 
 proper for one of them, and that he might have another for it in a, differ- 
 ent form, then the wholei writ shall abate (m). It is said to be a rule, that 
 if the plaintiff himself acknowledges his writ false in the whole or in part, 
 the whole writ shall abate (x). But where the plaintiff declared in tress- 
 pass for injuring a ship, and even showed in his declaration that he was 
 only a ,part owner, it was held that as the nonjoinder in tort is only 9, 
 ground for a plea in abatement, the defendant could not in any other 
 shape impugn the declaration, though the defect appeared on the fa,ce of 
 it (^). And a fortiori where the nonjoinder of a party or other j,matter, 
 even if ple?ided in abatement, could not abate the writ, it cannot have that 
 effect from the mere circumstance of its being disclosed in the declaration; 
 and therefore the position in a book of high authority (z), that *'if in tres- 
 pass against A. only, the plaintiff declare that the defendant, together with 
 B., committed the trespass, the writ shall abate ; for by his own showing 
 he has falsified his writ," appears to have been very properly disputed (a). 
 Formerly it was the practice to plead in abatement, when upon the face 
 of the plaintiff's declaration it appeared that a part of the plaintiff 's caijse 
 of action was not well founded, but now it is most usual to demur to the 
 whole declaration if there be g- misjoinder, or if there be no n^isjoinder 
 
 (p). Rep. temp. Hardw. 135. (<) Id. 
 
 (}) Com. Dig. Abatement, 1. Q. Aliter, it (u) 2 Saund. 209 e, and 210, n. 1. 
 
 seems, where husband and wife are defend- (s) /d. 210 c, note; 896, n. 1, 
 
 ants, id. Pleader, 2 A. 3; Cro. Jao. 239. (y) 6 T. R. 766; 2 gaund, 896, n. J. 
 
 (r) Com. Dig. Abatement, 1. 7. («) 2 Saund. 210 c. 
 
 (s) 7 T. R. 243; 1 Saund.'? a; Bao. Ab. (o) /d. n. k, 5th ed. 
 Abatement, P. 
 
 (1) See Palmer 11. Dixon, 5 Dowl. & Ryl, 623. 
 
 (2) Nor can a defendant plead in bar the same matter which he has previonsly pl$a4ed in 
 batement, and which has been overruled. Coxe v. Higbee, 5 Halst. 895. 
 
 « Vol. I. 61 
 
459 
 
 rORM AHD 
 
 OP PLEAS 
 
 then only to the defective part (6). Where the matter goes only to defeat 
 a part of the plaintiff's cause of action the pica in abatement should be 
 confined to that part, and if the defendant were to plead to the whole, his 
 plea would be defective (c). So where there are several defendants in 
 an action of tort, and one of the defendants pleaded a misnomer, which 
 then abated the action as to himself only, the plea was holden defective 
 on general demurrer, if^t concluded by praying judgment of the writ (or 
 bill) generally, instead of praying judgment that it might be quashed as 
 against himself only {d). Where a declaration in debt contained two 
 counts, and to the first the defendent pleaded non est factum, and to the 
 second he pleaded in abatement the nonjoinder of another person, and 
 his plea commenced and concluded with praying judgment " of the said 
 writ," (not stating as it regarded the second count,) " and of the said de- 
 claration as to the second count thereof," the Court held the plea was 
 good, and that they might abridge the petition of the plea by quashing the 
 writ as well as the declaration as to the matter in the second count (e). 
 
 I 
 
 [ *460 1 *1'li6 general rule which prevails in pleading in bar, is, that a mere 
 ethly. The Player of judgment, without pointing out v}hat judgment, or the appropri- 
 conciusion ate judgment, is sufficient ; because the facts being shown, the Court will- 
 °j ?'**' 1" of course pronounce the proper judgment (/). Upon this principle 
 as respects i*- ^^^ ^^^^ ^^^^ ^^^^ ^f ^ V^^^ which contains matter in bar of an 'action 
 verification conclude in abatement it is a plea in bar notwithstanding the wrong conclu- 
 and prayer gjon, and final judgment should be given upon it, for if the plaintifi' have no 
 ment.^' cause of action he can have no writ (g-) (1). The same rule applies, if in 
 a plea containing matter in bar there be a right prayer of judgment in the 
 conclusion, although the commencement be improper (A). On the other 
 hand the commencement and conclusion so far give the character of the 
 plea, that if a plea commencing and concluding in abatement show mat- 
 ter in bar, it is to be considered a plea in abatement and not in bar (i) ; and 
 the converse to this, viz. a plea containing matter sufficient only to abate 
 the writ, but with the beginning and conclusion of the plea in bar, has been 
 decided in the same way (k) (2). . The anxiety of the Courts to discourage 
 dilatory pleas probably first induced th6m to depart in construing stick 
 pleas, from the relaxed rule which applies to pleas in bar, in respect of the 
 prayer of judgment (/) : and if a plea which contains matter in abatement 
 conclude in bar, and be found against the defendant, it is a plea in bar (3), 
 
 (S) See the cases 2 Saund. 210, in notes; ministratrix on a contract entered into by the 
 
 1 M. &SeI. 355, 360; ante, 205. intestate ; the plea began and concluded in 
 
 (e) 6 T. R. 557. abatement; the substance of it was in bar, viz. 
 
 Id) 1 M. & P. 26. that the intestate made the contract with 
 
 (e) 2 B. & P. 420; 2 Saund. 210, b, c. others, against whom the action survived. 
 
 note; sed quteresee 1 Harr. & Woll. 426; and The plaintiff took issue on this; and at the 
 
 vide post, 460. trial it appeared the contract was in fact joint, 
 
 (/) 4 East, 502, 509; lOId. 87, 1 Saund. butthat others beside those named in the. plea 
 
 97. n. 1; see3T. E. 186; 1 B. & Aid. 172; joined in it and were alive. If then the plea 
 
 1 M. & P. 26. was to be considered as one in abatement, such 
 
 (g) 2 Saund. 209 e, note. proof was an answer to it, because the plea 
 
 (h) Fortes. 335; Steph. 2d ed. 446. failed to give the plaintiff a better writ, and 
 
 (i) Ld. Raym. 593; 2 Saund. 209, c, note. as the Court held the plea to be a plea in 
 
 {k) Godson v. Good, 6 Taunt. 687; 2 Marsh, abatement, the defendant failed in his defence. 
 
 299, 8. C. This was an action against an ad- {I) 10 East, 87 ; 1 B. & Aid. 172. 
 
 (1) Hurgis V. Ayres, 8 Yerger,467. 
 
 (2) Shaw V. Butcher, 19 Wend. 222. 
 
 (3) Vide Jenkins v. Fepoon, 2 Johns. Cos, 312; Schoonmaker v. Elmendorf, 10 Johns. 49. 
 
IN ABATEMENT. 460 
 
 and final judgment shall be given upon it, because by praying judgment if fokms and 
 the plaintiff shall maintain his action, the defendant'admits the writ to be «''''''^^- 
 good (to). So a plea which begins in bar, though it contain matter in 
 abatement, and conclude in abatement, is nevertheless considered to be a 
 plea in bar, and final judgment shall be given (n) (1). 
 
 Pleas to the jurisdiction, and of personal privilege to be sued in anoth- 
 er Court, usually commence without any prayer ofjudgment, dnd conclude, 
 " and this he the plaintiff is ready to verify ; wherefore he prays judgment 
 if the said Court of our said lord the king here will or ought to take cog- 
 nizance of the said plea," or " whether *he ought to be compelled to an- [ *461 J 
 swer," (o) but sometimes these pleas commence also with a similar 
 prayer (jo). 
 
 In pleading to the person of the plaintiff or defendant, in respect of dis- 
 ability to sue or be sued, and not merely on account of the non-joinder of 
 another party, the plea should conclude with a prayer, " if the plaintiff 
 ought to be answered," or whether the defendant ought to be compelled 
 to answer (9) :" and these pleas frequently begin with a similar prayer, as 
 alien enemy, &c. (r) ; and a plea of this description concluding merely to 
 the writ would be bad (s) ; but pleas in abatement of coverture of the 
 plaintiff or defendant, as the objection goes rather to the nonjoinder of the 
 husbartd than to the disability of the feme, conclude with a prayer ofjudg- 
 ment as ^0 the writ {t). If the defendant plead that the plaintiff is excom- 
 municated, or any other temporary disability, the plea should conclude 
 with praying that the suit may remain without day, until, &c. (m) ; and 
 where the death of the plaintiff since the issuing of the writ is pleaded, it 
 should conclude if the Court will /wr^Aer proceed, &c. (a;). 
 
 Where the defendant pleads in abatement to the writ formatter apparent 
 on the face of it, it is said that he should begin as well as conclude his 
 plea, by '•'■praying judgment of the writ, and that the same may be quash- 
 ^d " Qy'). But where the plea is for matter dehors, as misnomer when that 
 matter was pleadable, the plea should only conclude with that prayer (z). 
 The Courts having now established a rule that oyer of the writ cannot be 
 allowed, a variance between the writ and count, or declaration, can be no 
 longer pleaded (a),, and many, of the decisions in the books as to the form 
 of the plea are no longer applicable ; and now in general a plea in abate- 
 
 (m) 1 East, 636; 2 Sannd. 209 d; 2Ld. (s) Com. Dig. Abatement, I. 12. 
 
 Eaym. 1018, 1019, 694; 2 Marsh. 303; 6 (t) Post, vol. iii.; Lil. Ent. 1, 123; Ast. 
 
 Taunt. 587, S. C. Ent. 9; 3 Inst. CI. 70; 1 Wentw. 47. 
 
 * (n) 2 Saund. 209 c, note; Bac. Ab. Abate- (jt) 12 Mod. 400; 3 Lev. 208; Lutw. 19; 
 
 meut. P.; 1 Li. Raym. 694; 10 East, 87, IStr. 521; 3 Inst. CI. 18; 2 Saund. 209 e, 
 
 88. note. See 10 East, 86. 
 
 (0) 2 Saund. 209 d; Com. Dig. Abatement, (x) Com. Dig. Abatement, I. 12; 3 Lev. 
 L 12 ; Bac. Ab. Abatement, P. ; 12 East, 544 ; 120 ; 4 East, 502 ; 2 Saund. 209 e, note, 
 ante, 445. {y) 2 Saund. 209 a, d, note 1; Com. Dig. 
 
 (p) Seethe precedent, 8 T. K. 631. Abatement, I. 12;Lutw. 11. 
 
 ig) 2 Saund. 9, n. 10; 209 d; Latch. 178; (z) Id.; 10 East, 87. 
 
 Lil. Ent. 1. (o) Anle,460,2i4:, 430. 
 (r) Lil. Ent. 1; Lutw. 1601; Ast. Ent. 11. 
 
 (1) M'Laughlin v. De Young, 3 Gill. & Johns. 4. But if matter which though to be pleaded 
 in abatement be pleaded in the form of a bar, the plaintiff may treat it as a plea in abatement, 
 by proceeding to judgment for ■want of a plea, if it be not verified by affidavit. Robinson v. 
 Fisher, 6 Caines, 99, 100. See also Engle v. Nelson, 1 Penn. 442. And if there has been an or- 
 der, for the defendant to plead issuably, such plea is not a compliance with the order, 
 and the plaintiff may treat it as a nullity. Davis v. Grainger, 3 Johns. 259. The plaintiff may 
 demur to the plea either in bar or abatement. A plea in abatement cannot be amended. Trin- 
 der V. Durant, 5 Wend. 72. 
 
461 
 
 OF PLEAS 
 
 OT*"^ mebt of the writ must be pleaded of the writ and declaration, when the 
 latter continues and discloses the objection to the writ, and it must be so 
 where it is intended to plead in abatement only of part of the writ, and 
 the cause of abatement arises only on one of the counts in the declara- 
 tion (6). If the action were by bill, the plea must have concluded by 
 praying judgment of the bill, and not of the declaration only, which was 
 only a conclusion in bar (c) ; and it should not have concluded by pray- 
 ing judgment of the " bill and declaration," (rf) and if a plea in abate- 
 
 £ *462 ] ment *to the writ were to conclude, " if the defendant ought to answer to 
 the said bill," it would be sufScient (e) (1). 
 
 Great accuracy is necessary in the form of all pleas in abatement as 
 well in the commencement as in the conclusion for it is said " thei/ make 
 the plea" (/) (2). A plea which concluded with praying judgment "if" 
 (instead of" of"), the plaintiff's bill was held bad on demurrer, though 
 the words " and that the same may be quashed," were also added (^g-). 
 So, in the traverse at the end of the plea, a mis-statement of the name by 
 trhich the defendant was called in the declaration was considered fatal on 
 demurrer (A). The mode of concluding the plea when pleaded to part 
 only of the action, has been already observed upon (i). Upon a plea in 
 abatement of pendency of another action in another Court for the same 
 cause concluding with a prout patet per recordum, it is suificient to satis- 
 fy the plea if writ be produced (/c) (3). » 
 
 7thly. Of At common law, where the defetndant pleaded a foreign plea, (the na- 
 iheaffida^ ture of wh,ich has already been stated) (/), he was obliged to make oath 
 tenth.* ^ °^ ^^^ truth of the matter therein alleged, but that was not necessary in the 
 case of a plea to the jurisdiction, or any plea in abatement (m). But 4 
 & 5 Ann. c. 16, s. 11 (4), " no dilatory plea shall be received in any Court 
 of record, unless the party offering such plea do by affidavit prove the 
 truth thereof, or show some probable matter to the Court (w), to induce 
 them to believe that the fact of such dilatory plea is true." (5). This 
 statute extends to criminal as well as civil cases (o) ; and not only to 
 pleas in abatement but to all dilatory pleas, which, if found untrue, would 
 not determine the action, and are only in delay of it, as aid prayer in a 
 real action (/?) ; or a plea in scire facias against terre-tenants, that there 
 is another terre-tenant not named ; though these pleas are not strictly in 
 
 (4) 2 Saund. 210 b, o.note. T. R. 515; 5 Taunt. 652, 653, note. 
 
 (c) 2 Saund. 209 d; 1 B. & Aid. 172;2 M. (A) 1 Chit. Rep. 706, note. 
 
 & Sel.484; 2 Chit. Rep. 539. (i) Ante, 458, 459. 
 
 (rf) Id.; 5 Mod. 144; 2 B. & B. 124, note (Ic) Kerby v. Siggers, 2 Dowl. 659. 
 
 e; 3 T. K. 185. See, however, Com. Dig. {l) Ante, 443; 1 Saund. 98, note 1. 
 
 Abatement, I. 12. (m) 1 Saund. 98, n. 1; Garth. 402; Sty. 
 
 (c) See the preceding note; 2 Saund. 209 d; 435; Mod. 385. 
 
 BBla. Com. 303; 10 East, 87. (n) In case of a plea of bankruptcy puis 
 
 (/) Latch 178; 2 Saund. 209 c, d; 2 Ld. darrein eoniinuance, see 1 M'Glel. &Y. 850. 
 
 Raym. 1019; 10 East, 87; But see the entries (o) 3 Burr. 1617. 
 
 referred to in 3 T. B. 186. {p) 3 B. & P. 384; 2 SaUnd. 210. 
 
 {g) 3T. B. 185; and see 2 Saund. 209 a, 8 
 
 (1) Harwood v. Chestney, 13 Wend. 495. Vide Ilsley ». Stubbs, 6 Mass. 280. 
 
 (2) Ante, 504, note. 
 
 (3) Commonwealth v. Churchill, 5 Mass. 174; Clifford v. C&ry, 1 Mass. 495. 
 
 (4) The first thirteen sections and the twentieth and twenty-seventh sections are in force in 
 Pennsylvania, 3 Binn. 625; Roberts' Dig. 48. Vide Laws of N. Y. sess. 36, c. 56, s. 23. 1 R. 
 L. 624; 2 Rev. Stat. 852, s. 7. 
 
 (6) Trenton Bank v^. Wallace, 4 Halst. 83. Bass v. Stevens, 17 Georgia, 573. . 
 
IN ABATEMENT. 462 
 
 abatement Qq). But such pleads in bar as are usually termed sham pleas, *'°™ •*'™ 
 are not dilatory pleas within the meaning of the statute. The statute ex- '*''''''™'^' 
 tends only to such matters as are dehors the record, and not to such mat- 
 ters as would appear to the Oonrt on inspection of their own proceedings 
 (r), as the want of addition in an original writ, when the isiatter was 
 pleadable in abatement (s); or privilege as an attorney *of the same Court [ *463 J 
 to be sued by bill (t) ; because in the first instance the defect in the vfiit 
 was apparent on the face of it; and in the latter, the Court, by examina- 
 tion of their own record, might ascertain the truth of the plea : but where 
 the defendant pleaded after oyer of the original that it was not returned, 
 the Court set aside the plea for want of an aflBdavit (m). And where to 
 an action in C. P. the defendant pleaded his privilege as an attorney of 
 K. B. to be sued there without making an affidavit of the truth it was re- 
 cently held that the plaintiff might sign judgment, because the court of C. 
 P. could not by examination of their own records know that the defend- 
 ant was an attorney of another Court (a;). 
 
 The affidavit required by 4 & 5 Ann. c. 16, s. 11, may be made by the Kequisites 
 defendant or a third per son(ij); and although formerly supposed otherwise °j^*^^*" 
 (2r), it h^s recently been held that it must be sworn after the declaration " 
 is delivered, and that if it be sworn before the declaration was delivered 
 the plaintiff may treat the plea as a nullity and sign judgment (a). It mus^ 
 be promptly and exactly entitled in the cause (6), and be positive (1) as 
 to the truth of every fact contained in the plea, and should leave nothing 
 to be collected by inference (c) : it should be stated that the plea is true 
 in " substance and fact," and not merely that the plea is a true plea (d) ; 
 and if there be no affidavit, or it be defective in any particular, the plain- 
 tiff may treat the plea as a nullity and sign judgment (e), or move the 
 Court to set it aside (/) (2). 
 
 REPLICATION AND OTHER PROCEEDINGS ON A PLEA IN m;™ca- 
 ABATEMENT IN GENERAL. "Zb'peo. 
 
 CEEOINCa 
 
 Where misnomer either of the plaintiff or defendant was truly pleaded, "^ IbI™^ 
 the plaintiff might in general amend his declaration .on payment of costs, meni in 
 
 GratERAIi. 
 
 (g) 2 Saund. 210 d, e. (a) Bower v. Kemp, 1 Cromp. & Jervis, 
 
 (r) 3 B. & P. 397; Pr. Beg. 5; Lord 287. 
 
 Baym. 1409; Say. Eep. 203. (A) Bao. Ab. Abatement, 0. ; 2 Stra. 1161; 
 
 («) Lord Raym. 1409; Prac. Beg. 5. Barnes, 248. 
 
 ' (0 Clariiige, gent, one, ^c, ats. Macdou. (c) Say. R'jp. 298. 
 
 gal. Trinity term, 47 Geo. 3 K. B. 3 B. & P. (d) 2 Stra. 705. 
 
 897. But see 2 Stra. 738, and Com. Dig. (e) 2 Saund. 210 d; IT.R. 277, 689; 5 Id. 
 
 Abatement, D. 6. If the pleabe untrue, or 210; 7/d. 298; 2 Moore 213. The plaintiff 
 
 the defendant has ceased to be an iittorney, the cannot sign judgment after a plea in abate- 
 
 .plea may be set aside, Prac. Beg. 8. ment, because the affidavit to verify the plea 
 
 (u) 1 Stra. 639; 2 Ld. Raym. 1409. was sworn before the defendant's attorney, 8 
 
 (x) Davidson i;. Chilman, 1 BiUg. N. C. M. & Sel. 154. 
 
 297. (/) 1 Stra. 638; Say. Bep. 19, 293; 3 
 
 (y) 1 Barnes, 344; Pr. Reg. 6. Burr. 1617; Tidd, 9th ed. 540; sed qucere, 
 
 (2) 4 East, 348; 4 M. & Sel. 332; laEast, see 2 Moore, 213; 2 B. & C. 618. 
 170. 
 
 (1) Day D. Hamburg, 1 P.A. Brown, 75. 
 
 (2) Richmond i). Talmadge, 16 Johns. 307. Vide Robinson e. Fisher, 8 Caines, 99; Young 
 v.'Shinger, SHayw. 32; Rapp a. Elliot, 2 Dall. 184; Marstenw. Lawrence, 1 Johns. Gas. 397. 
 
*464: OF PLEAS 
 
 BEPHOA- Qj. -jp-ithout subjecting himself to the payment of the defendant's costs he 
 oTHEKPBo- might enter a cassetur billa or breve (if}. But *where the nonjoinder of 
 cEEDiNGs. one of several co-contractors was pleaded, the plaintiff could not nor can 
 Of demur- amend, but must enter a cassetur, and commence a fresh action in order 
 ring to a that the Other parties may in due course be brought by fresh process into 
 abatement ^o"^^*'- -^"^^ when the plea is true, and the plaintiff is not at liberty to 
 " amend, he should enter his cassetur before he commence a fresh action, 
 for otherwise the defendant may plead in abatement the pendency of the 
 first action (A). If the plea be untrue in fact, the plaintiff should reply; 
 or if it be insufficient in point of law, he may demur, and in some cases 
 sign judgment as for want of a plea (i) ; though if the plea were merely 
 defective in form, the plaintiff should demur (A;). And where the defend- 
 ant bad appeared in the name by which he was sued, such appearance 
 might have been replied by way of an estoppel (/). When the plea consists 
 of matter of fact, which the plaintiff denies, the replication may begin 
 without any allegation that the writ ought not to be quashed (m). It 
 must not commence as to a plea in bar (w), because that would be a dis- 
 continuance, but should conclude to the country ; and which was proper 
 ■where to a plea of misnomer the plaintiff replied that the defendant was 
 known as well by the one name as the other (o). There are, however, 
 precedents in which the plaintiff concluded with a formal traverse and 
 • verification (jo). It was laid down by Lord Holt, that if the plaintiff 
 took issue upon a plea in abatement, he ought to pray damages, because 
 if it were found against the defendant, the jury must assess the plaintiff's 
 damages, and final judgment was to be given; but that where the plaintiff 
 confessed the defendant's plea and avoids it by other matter, he -should 
 not pray damages, but must maintain his writ (q). If a replication to a 
 plea in abatement of the writ begin " that the said declaration " ought 
 not to be quashed, but conclude properly, it is sufficient; for such words 
 may be rejected as surplusage ; and it is not necessary in the beginning 
 of the replication to say that the writ ought not to be quashed ; for in fa- 
 vor of the plaintiff the Court would give judgment according to the fact, 
 without reference to the prayer of the judgment (r). If an issue ii\fact be 
 joined upon the replication, and found for the plaintiff, the jury should 
 assess the damages, and the judgment is peremptory for the delay ^wotZ re- 
 [ *465 1 cuperet, *and not quod respondeat (s) ; and the same rule prevails in in- 
 dictments for misdemeanors, though in cases of felony in favorem vitrn it 
 is otherwise (f) (1). 
 
 (g) 7 T. R. 698; 3 Arstr. 985; 1 B. & P. mence, or conclude improperly in bar; Bac. 
 
 40; ante, 246. It was the practice not to Ab. Abatement, 8; Com. Dig. Abatement, I. 
 
 permit such amendment if the defendant has 16. 
 
 previously made a tender. (o) 1 B. & P. 60; 1 East, 542; 2 Wils.367. 
 
 (h) Ante, 453. Bao. Ab. Abatement, M. (p) Lil. Ent. 1, 2; Co. Ent. 160. 
 
 (0 3 B. & P. 895. If the plea be no pleaat (7) 1 Lord Raym. 338, 694; 2 Id. 1022; 2 
 
 all, party may move to quash it. 2 B. & C. Saund. 211 n. 3; Bao. Ab. Abatement, P.; 
 
 618; 4 D. & R. 114, S. C. Com. Dig. Abatement, I. 12; post ; see the 
 
 (/f) 3T. R. 185. The plaintiff cannot move precedents, 1 Wentw. index, 
 
 toquashit, 4 D. &R. 114;2B. &C.618,S. C. (r) 1 B. & P. 60. 
 
 (I) 2 New Rep. 453; anic, 244, 245. (0 1 East, 544; 2 Wils. 368; Com. Dig. 
 
 (m) 1 B. & P. 61. Abatement, I. 14, 15; 2 Saund. 211. n. 8. 
 
 (n) Garth. 187; Com. Dig. Abatement, I. (<) 8 East, 107; 8 Bar. & Cres. 513 to515; 
 
 15; 1 B. & P. 6,1. Aliler, if the plea com- 5 D. & R. 533, S. C. 
 
 (1) Where an issue of ni/Z (I'cZ record on a plea in abatement is found for the plaint'ff, the 
 iaigraent\s, quod respondeat ovsler. IWarston ». Lawrence, 1 Johns. Cas. 397. And so where 
 the trial is by inspection, judgment for the plaintiflF is that defendant ntpondfot ottsler. Am- 
 
m ABATEMENT. 46§ 
 
 If the plaintiff demur (u) it is not necesnary to assign any special causes, kephoa- 
 for it has been decided oa the statute of Elizabeth, (the language of which ™ kr'^pbo 
 is similar to that of the statute 4 Ann. c. 16), that the statute only ap- ceedings. ' 
 plies to pleas in bar (y) ; however it may be most advisable to demur spe- ofdemur- 
 cially where the plea is merely informal (yo). Where the plea demurred ring- to a 
 to properly commences and concludes as in abatement, but is insufficient P'^" ^° 
 in some other respects, the demurrer should pray judgment that the writ *°*'®'"*" • 
 may be adjudged good, and that the defendant may answer further there- 
 to, or merely with the latter words, and should not conclude with a prayer 
 of damages ; for the plaintiff ought not to conclude in bar, but only affirm 
 his writ (.-c). So, where the plaintiff replies to a plea in abatement, and 
 the defendant demurs to the replication, the plaintiff should not conclude 
 his joinder in demurrer with a prayer of judgment of his debt or damages, 
 but should merely pray that the defendant may ansioer over («/). And 
 where the plaintiff demurred to a plea in abatement, as in bar, praying 
 judgment and damages, and the defendant joined as in bar, it was held to 
 be a discontinuance, because the demurrer in bar was no answer to the 
 plea in abatement, and a discontinuance of part is a discontinuance of the 
 whole (z) ; the plaintiff, however, may amend, and the mistake would be 
 aided by a verdict (a). But where the plea in abatement improperly 
 commences or concludes as a plea in bar, the plaintiff may demur either ' 
 in bar or abatement (1) ; and if he adopt the former, which is most advi- 
 sable, he may conclude his demurrer as in bar, and with a prayer of dam- 
 ages, and the judgment will be final (6). On the argument of a demurrer 
 to a plea in abatement, or to a replication thereto, t/ie defendant cannot 
 (as usual on argument after a plea in bar} take any objection to the de-r 
 claration, for nothing but the writ is then in question (c), unless where 
 matter has been pleaded in abatement which might also be pleaded in bar 
 (rf), and the *Cdurt will not in general give leave to amend a plea in [ *466 ] 
 abatement (e) (2). But a plaintiff has been allowed to withdraw his -de- 
 murrer to a plea in abatement and to reply (/). 
 
 If the plaintiff suceed on an issue iafact, the judgment, as before ob- Judgment 
 served .{g), is final (3) ; but if he succeed on demurrer to a plea in abate- abatement^ 
 
 («) See the precedents referred to in 2 542 ; 2 Saund. 210 e, f, note. 
 
 Saund, 210 e, note 2; post, vol. iii. and join- («) 1 Wils. 302; 1 Salk. 218. 
 
 der thereto, id. (b) Bac. Ah. Abatement, P.; Com. Dig 
 
 (v) 2 M. & Sel. 484, 485; 2 Ld. Raym. ' Abatement, 1. 15. 
 
 1015; and see 1 Ld. Raym. 337; 1 Salk. (c) Salk. 212; Lutw. 1592; Garth. 172. 
 
 19i; Tidd, 9th ed. 638; see Reg. Gen. Hil. Willes, 478; Bao. Ab. Abatement, P.; Com. 
 
 Term, 4 W. 4, reg. 2, as to the causes of de- Dig Abatement, I. 14; 1 Saund. 285, notee. 
 
 murrer being stated in the margin, &o., post, 5th ed. 
 
 An. (rf) Lutw. 1604; Com. Dig. Abatement, L 
 
 {w) 3 T. R. 186. 14. 
 
 (a;) 2 Saund. 210 e, note. (e) Gas. Pr. G. P. 29; Tidd, 9th ed. 638. 
 
 ly) Id.; 1 Wils. 302. (/") 2 Chit. Rep. 5. 
 
 (2) Show. 255; 1 Salk. 218, S. G.; 1 Eist, (g-) Ante, 464; Tidd, 9th ed, 641. 
 
 cots V. Ameots, 1 Lev. 163; Com. Dig. Abatement, (I. 14.) But where a defendant pleads in 
 abatement, and the plaintiff takes issue upon the plea, and itis found against the defendant, the 
 judgment is final, and the same jury which pass upon the issue assess the damages. M'Cartee 
 V. Chambers, 6 Wend. 549. • 
 
 (1) Roberts -J). Stewart, 1 Yerger, 390. 
 
 (•2) Trinder v. Durant, 5 Wend. 72. 
 
 (3) HoUingsworth v. Duane, Wallace, 57; Moore v. Morton, 1 Bibb, 234; M'Cartee v. Cham- 
 bers, 6 Wend. 649;Dodgei;. Morse, 3N. Hamp, 232; Jewett D.Davis, 6 N.Hamp. 518;Meha£fy 
 V. Share, 2 Pennsylr, 361, 
 
467 OP PLEAS 
 
 EEPWdA- ment or to a replication thereto, the judgment is in general only interlocu- 
 moN AND iQj.y^ quod respondeat ouster (A) (1). Where, however, a plea contain- 
 cEEEoiNGs. ing matter which can only be pleaded in abatement, improperly commen- 
 ces or concludes in bar, the judgment on demurrer may be final (i) (2) ; 
 and the same rule prevails where matter in abatement is pleaded after 
 the last continuance (A;), or since Reg. Gen. Hil. T. 4 W. 4, since the last 
 pleading. After judgment of respondeat ouster no other plea in abaltement 
 in the same degree (^)will be allowed (»i). The judgment {or the defend- 
 ant on a plea in abatement, whether it be on an issue in fact or in law, is, 
 that " the writ be quashed; (w) or if a temporary/ disability or privilege: 
 be pleaded, that " the plaint remain without day, until, &c." (o). 
 
 Costs on If the plaintiff succeed on demurrer to the plea in abatement, and the 
 
 abatement j'^<^g°i6nt be interlocutory, respondeat ouster, there is no judgment for 
 costs, because the statute of Gloucester only gives costs where damages 
 are recovered (p) ; but when the defendant's plea is on issue found to be 
 untrue, the judgment is final, and the plaintiff will recover costs (g). If 
 the plaintiff enter cassitur billa or breve, he is not liable to costs (r). On 
 an issue found for the defendant he is entitled to costs, but not if he suc- 
 ceed on demurrer (s) : nor is he entitled to the cost of a judgment of won 
 • pros, obtained by reason of the plaintiff having omitted to enter the issue 
 on record, after issue joined on a demurrer to a plea in abatement (0(^)- 
 
 [ *468 ] *IV. OF PLEAS OF NONJOINDER IN PARTICULAR, 
 
 OP PLEAS OP 
 
 Kox-joiiT- Before the 3 & 4 W. 4, s. 8, 9, 10, pleas in abatement of the 
 tictSr^^ nonjoinder, although in some cases just, in order to compel a plaintiff to 
 sue all persons liable to pay jointly, so as to make them liable on the rec- 
 ord to pay their proportions of the debt or damages to be recovered, had 
 become the source of vexatious delay, especially as each omitted party 
 might in a second action plead in abatement that still another party who 
 ought to be joined had been omitted, and so on (w) ; and if an omitted 
 partner were abroad, or not to be found, a plaintiff could not declare 
 against those forth coming until he had_/jrs< outlawed the absent party, and 
 
 (K) 2 Saund. 311, note 3; Com. Dig. Abatement, I. 3; 2 Saund. 40, 41. 
 
 Abatement, I. 14; 1 East, 544; 2 Wills. 367; {») Bac. Ab. Abatement, P.; Gilb. C. P. 
 
 see the forms, Tidd's, Appendix, 4th edit, 52; 3 M. & Sel. 453. See the precedents, 10 
 
 263; 10 Wentw. 61; Tidd, 9th edit. 741. Went. Index, 61. 
 
 sed vide 3 B. & C. 502; 5 D. & R. 422, S (o) Lutw. 19; Cleft. Ent. 3; 2 Saund. 209 e. 
 
 C. Tidd, 9th ed. 642. ' 
 
 (i) 1 East, 686; Lutw. 41; Com. Dig. (p) Lord Baym. 972; 1 Salk. 19 S. C; 
 
 Abatement, 1. 15; Bac. Ab. Abatement, P. Tidd, 9th ed. 642; id. Appendix. 
 
 As to the prayer of judgment in general, see (g) Jd.; 1 East, 544; 2 Wils. 368. 
 
 10 East, 37; ante, 460. (r) Id.; Tidd, 9th edit. 683; Hulluc^, 145. 
 
 (k) Com. Dig. Abatement, L 15. (s) Lord Raym. 337, 992; 1 Salk. 194, S. 
 
 (I) See Tidd, 9th ed. 641 ; Com. Dig. Abate- C. ; HuUook, 145 ; Tidd, 9th ed. 642. 
 
 ment, I. 4; ante, 440, 441. (0 8 B. & C. 642; 3 M. &R. 91, S. C. 
 
 (m) Bac. Ab. Abatement, 0.; Com. Dig. (u) See Govett ». Badnidge, 3 East, 62. 
 
 (1) Fitch V. Lothrop, 1 Root, 192; Baker v. Fales, 16 Mass. 147, 157; Lambert v. Lagow, 
 1 Blackf. 888; Gibson v. Laughlin, Minor, 182. 
 
 (2) Leathers v. Meglasson, 2 Monro, 54. 
 
 (8) A party applying to amend a declaration after a special demurrer to it has been filed, 
 must pay costs. Condit v. Neighbor, 7 Halst. 320. 
 
IN ABATEMENT. 467 
 
 the delay as ■vfell as difficulties in proceeding to outlawry not unfrequently of pleas or 
 rendered that proceeding abortive. To put an end to these grievances, ^°^-^°^^- , 
 the 3 & 4 W. 4, c. 42, s. 8, enacted, " that no plea in abatement for the iioVilaf^ 
 nonjoinder of any person as a co-defendant shall be allowed in any Court 
 of common law, unless it shall be stated in such plea that such person is 
 resident within the jurisdiction of the Court, and unless the place of resi- , 
 dence of such person shall be stated with convenient certainty in an affi- 
 davit verifying such plea. 
 
 S. 9. " That to any plea in abatement in any Court of law of the non- 
 joinder of another person, the plaintiff may reply that such person has 
 been discharged by bankruptcy and certiiicate, or under an act for the 
 Relief of Insolvent Debtors. 
 
 S. 10. " That in all cases in which after such plea in abatement the 
 plaintiff shall, without having proceeded to trial upon an issue thereon, 
 commence another action against the defendant or defendants in the action 
 in which such plea in abatement shall have been pleaded, and the person or 
 persons named in such plea in abatement as joint contractors, if it shall 
 appear by the pleadings in such subsequent action, or on the evidence at the 
 trial thereof, that all the original defendants are liable, but that one or 
 more of the persons named in such plea in abatement or any subsequent 
 plea in abatement are not liable, as a contracting party or parties, the 
 plaintiff shall nevertheless be entitled to judgment, or to a verdict and judg- 
 ment, as the case may be, against the other defendant or defendants who 
 shall appear to be liable ; and every defendant who is not so liable shall 
 have judgment, and shall be entitled to his costs as against the plaintiff, 
 who shall be allowed the same as costs in the cause against the defendant 
 or defendants who shall have so pleaded in abatement the nonjoinder of 
 sach person ; provided that any such defendant who shall have so pleaded 
 in abatement shall be at liberty on the trial to adduce evidence of the lia- 
 bility of the defendants named by him in such plea in abatement." 
 
 *SiBce this enactment a plea in abatement of nonjoinder of a co-defend- [ *468 J 
 ant must state not only that the omitted party is still living, but that he is 
 resident within the jurisdiction of the Court, and the affidavit of its truth 
 must state the place of residence with convenient certainty, and thus the 
 plea and affidavit, according to the principle of a plea in abatement, 
 point out to the plaintiff an effectual better writ, and also enjible the plain- 
 tiff in his second action, commenced in consequence of such plea, effectu- 
 ally to proceed against such defendants as he shall on the trial prove to 
 have been liable. The forms of the thus regulating plea of nonjoinder and 
 of the peculiar affidavit to be now annexed will be found in the third vol- 
 ume (x). 
 
 The ninth section we have above seen enables the plaintiff to reply to 
 such a plea the bankruptcy and certiiicate of the omitted party, or his dis- 
 charge under an insolvent act. 
 
 The Reg. Gen. Hil. T. 4 W 4, reg. 20, gives the form of commenc- 
 ing a declaration in a second action after a plea of nonjoinder in abate- 
 ment, and which form will be found in the second volume («/) The above 
 sections it will be observed in terms only apply to pleas in abatement of 
 nonjoinder, and it would seem that the plea by a feme defendant of her 
 coverture and nonjoinder of her husband, though it prays an abatement of 
 the present writ on account of such nonjoinder, is not effected by the stat' 
 
 (a;) See post, vol.iii. (y) See post, toI. ii. 
 
 Vol. I. 62 
 
LAB. 
 
 468 OP PLEAS IN ABATEMENT, &C. 
 
 OP PLEAS 01' ute either as to the allegation or af&davit of residence of the omitted party, 
 der'in""" altlioug'i^ s"ch plea of coverture seems to be equally within the mischief 
 PARTiCT- intended to be prevented. 
 
 The statute of limitations, 9 G. 4, c. 14, s. 2, enacts that " if any de- 
 fendant or defendants in any action on any simple contract shall plead any 
 matter in abatement, to the effect that any other person or persons ought 
 to be jointly sued, and issue be joined on such plea, and it shall appear at 
 the trial that the action could not by reason of the said recited acts of this 
 act (i. e. the want of a written promise by the omitted party) or either of 
 them be maintained against the other person or persons named in such 
 plea, or any of them, the issue joined on such plea shall be found against 
 the party pleading the came." So that where several parties have orig- 
 inally jointly contracted, but the statute of limitations has barred the rem- 
 edy against some of them, but the other has signed a written promise or 
 acknowledgment within six years, the action may be properly brought 
 against him only ; and if he plead the nonjoinder of the other parties so 
 discharged from liability, the plaintiff may safely take issue on the plea, on 
 the ground that the action was properly brought only against the single 
 party cow/iwMmg- liable. 
 
[ *469 ] 
 
 *CHAPTEE VII. 
 
 OF PLEAS IN BAR. op pieas 
 
 IN BAB. 
 
 Pleas in bar go to the merits of the case, and deny that the plaintiff 
 has any cause of action (a), and do not, like pleas in abatement, give a 
 better writ (6). They either conclude the plaintiff by matter of estoppel 
 (which however rarely occurs in a pica) (f), or they show that the plain- 
 tiff never had any cause of action ; or admitting that he once had, insist 
 that it has been determined by some subsequent matter. They are also 
 either to the whole or to a part, of the declaration; and where there is 
 , only a defence to a part, it is advisible, on account of costs, to confine the 
 plea to that part {d). 
 
 Wo have seen that pleading is in general a mere statement oi facts (e), What facts 
 and pleas in bar stalte the various defences of which, under the circum- ?*° °J °?*, 
 stances of each particular case, the defendant is at liberty to avail himself in bar. • 
 in a Court of law. Matter of defence in equity only (/), or founded solely 
 on the rules of practice even of a Court of law, or being mere irregularity, 
 is not in general pleadable (§•) (1) ; thus bail cannot plead that the prin- 
 cipal is a bankrupt, and that he obtained his certificate (Ji) ; for although 
 the Court might on summary application relieve the bail, yet the matter 
 of defence constitutes no pleadable bar ; and bail to the sheriff cannot 
 plead the giving of time to their principal as a defence to an action 
 on bail bond (i). But where the matter of defence depends not merely 
 upon the established practice of the Court, but also upon a general rule 
 of law, as that bail above shall not be proceeded against until a capias 
 ad satisfaciendum has been issued against the principal, such matter is 
 pleadable (/e). It would be in vain to attempt to state all the various de- 
 fences in personal action : those which most usually occur in practice are 
 given in their natural order, in the following Analytical Table in *the ac- [ *470 ] 
 tion of Assumpsit (J) ; and the mode in which they should be taken ad- 
 vantage of are afterwards more fully stated, and precedents of the appro- 
 priate pleas are collected in the Third Volume. At the commencement 
 of each head of Pleas, whether in Debt, Covenant, Detinue, Case, Trover, 
 Replevin, or Trespass, a similar analytical table has been given in the 
 previous editions of this work, but omitted in the present edition in order 
 to afford room for the great increase of new matter. 
 
 (a) See the definition, Co. Lit. 503 b; (e) Ante, 213. 
 
 Heath's Maxims, and 6 Co. 7; ante, Steph. 2d (/) 7 East, 153; 8 Id. 344; 10 Id. 377. 
 
 ed. 75. Misconduct of arbitrators not pleadable, 8. 
 
 (4) Ante, 446, 457. East, 344; 2 M. & P. 845; 5 Bing. 200, S. C; 
 
 (c) Bao. Ab. Pleas, L 11; 5 Hen. 7, c. 14; See 1 Y. & J. 87. 
 
 1 Leon. 77; Say. 86. As pleading matter of (g) 2 East, 442; 7 /'/. 153; 4 East, 311; 2 
 
 esiop/jei more frequently ooonrs in rcpZicafions Campb. 396; 16 East, 39; 1 Wils. 334; ID. 
 
 and subsequent proceedings, the points relat- & R. 50; 7 B. & C. 800. 
 
 ing to it will be hereafter considered. It (A) 2 B. & P. 45; 7 East, 153, 154. 
 
 should be relied upon and specially pleaded (i) 8 Price, 467; 1 Young. & Jerv. 437; 
 
 OS such, see 2 B. & Aid. 662; M'Clel. & Y. 509. and see Davey v. Prendergrass , 5 B. & Aid. 
 
 {//) 5 East, 361; 7 Id. 325. See pleas 187. 
 
 which were held bad, as they might have been ( k) 16 East, 39; but see 7 B. & C. 800. 
 
 pleaded in abatement, or the proceedings (/) See also Com. Dig. Pleader as to the 
 
 might have been set aside for irregularity, 5 different defences and pleas in each particular 
 
 Moore, 168; 1 B. & Aid. S90. action. 
 
 <1) Nichols i;. Nichols, 9 Wend. 264; 10 Pet. S. C. 257; 17 Wend. 62. 
 
•471 
 
 OF PLEAS IN BAH. 
 
 OF PIEAS 
 IN BAS. 
 
 ^ANALYTICAL TABLE. 
 
 OF THE DErENCES TO ACTIONS ON CONTRACTS NOT UNDER SEAL.' 
 
 r 1st. Deny that there ever was cause for action. 
 
 1st. Deny that a sufficient contract was ever made. 
 1st. That no contract was in fact made. 
 2dly. Incompetency of plaintiff to be contracted with. 
 
 Plaintiff an alien enemy at time of contract. 
 3dly. Defendant incapable to contract. 
 1st. Infancy. 
 
 2dly. Lunacy, Drunkenness, &c. 
 3dly. Coverture. 
 4thly. Duress. 
 4thly. Insufficiency of consideration. 
 
 1st. Inadequacy of consideration. 
 2d. Illegality of consideration. 
 ( 1st. At common law. 
 ( 2d. By different statutes. 
 5thly. Contract obtained by fraud. 
 6thly. The act to be done illegal or impossible. 
 7thly. The Jorm of contract insufficient. 
 1st. At common law. 
 2d. By statute. 
 
 As statute against j6:auds. 
 8thly. No sufficient stamp. 
 2dly. Admit a sufficient contract, but show that before breach 
 there was — 
 \ 1st. A release. 
 
 2dly. Parol discharge. 
 
 3dly. Alteration in terms of contract by consent. 
 4thly. Non-performance by plaintiff of a condition prece- 
 dent, alteration, &c. 
 5thly. Performance, payment, &c. 
 6thly. Contract beca-ne illegal or impossible to perform. 
 2dly. Admit that there was cause of action, but avoid it by showing subsequent 
 or other matter, 
 f 1st. Plaintiff no longer entitled to sue. 
 1st. Alien enemy. 
 2dly. Attainted. 
 3dly. Outlaw. 
 
 4thly. A bankrupt, insolvent debtor, &c. 
 2dly. Defendant no longer liable to be sued. 
 C 1st. A certificated bankrupt, 
 {^ 2dly. An Insolvent debtor. 
 3dly. Debt recoverable only in a Court of conscience. 
 4thly. Cause of action discharged. 
 1st. By payment. 
 2dly. Accord and satisfaction. 
 3dly. Foreign attachment. 
 4thly. Tender. 
 Sthly. Account stated, and a negotiable security taken by 
 
 plaintiff. 
 6thly. Arbitrament. 
 7thly. Former recovery. 
 8thly. Higher security given. 
 9thly. A release. 
 lOthly. Statute of limitations. 
 _ llthly. Set-off. 
 5thly. Pleas by executors, &c. 
 
OP PLEAS IN BAR. *472 
 
 *Prom these subdivisions, which are nearly the same in each form of oeneeal 
 action, we may perceive that pleas la bar, as well in actions on contracts °^o^^'^" 
 as for torts, are of two descriptions ; first, they deny that the plaintiff ei;er '^ ^ 
 had the cause of action complained of; or, secondly, they admit that he tioi^'o'n' 
 once had a cause of action, but insist that it no longer subsists. sueh ana- 
 
 In the ancient course of pleading there appear to have been three de- 'J^p^ 
 scriptions of pleas in bar, by one of which the above defences were to be The former 
 taken advantage of, — 1st, The general issue. — 2dly, a denial of a par- indUcrimi- 
 ticular allegation in the declaration. — And 3dly, A special plea of new "*'® "'^ f 
 matter not apparent on the face of the declaratiou. General issues, it is pifa as*^" 
 said, were framed in words calculated to deny the whole of the facts al- non-as- 
 leged in the declaration (a), and were considered proper and indeed ne- sumpsit. 
 cessary when the defence merely denied the plaintiff's allegation, and re- 
 ferred the matter in dispute to VaQJury, the proper judges whether or not 
 the fact complained of was committed (6). In Assumpsit, before the 
 pleading rules, Hil. T. 4 W. 4, almost every matter might be given in 
 evidence under the general issue non-assumpsit, on the grouad, as was said, 
 that as the action is founded on the cotitract, and the injury is the «o»- 
 performance of it, evidence which disaffirms the continuing obligation of 
 the contract at the time when the action was commenced, goes to the gist 
 of the action (c). In Debt on simple contract also, under the plea of nil 
 debet, the defendant was at liberty to prove most matters which showed 
 that there was no existing debt (<i) ; but in debt or covenant founded on a 
 deed, on account of tlie solemnity of the instrument under seal (e), and 
 which in general must be dissolved eo ligamine quo ligatur, the plea of 
 non est factum merely put in issue the existence of the deed, and the de- 
 fendant was not at liberty to plead nil debet, unless where the deed,, was 
 mere inducement to the action, and the debt accrued by subsequent en- 
 joyment, <fec. (/). In Case or Trover, under the general issue, " not 
 guilty of the premises," almost anymatter of defence might be given in evi- 
 dence, though any plea admitting the plaintiff's property and the act com- 
 mitted, but justifying it might be pleaded (§•). In Replevin, the general 
 issue non cepit modo et forma, merely put in issue the act complained of 
 as stated in the declaration. In Trespass whether to the person, person- 
 al property, or real property, the general issue was not guilty (/i). In 
 injuries to the absolute rights of persons, this only put in issue the act 
 complained of; but in injuries to the relative rights, and to personal and 
 real property, it put in issue the existence of the right, as *well as the r "^TS 1 
 commission of the act complained of though in the two latter cases pos- 
 session would be sufficient against the defendant, unless he could show a 
 better title. 
 
 Formerly however it was not unusual, even in actions of assumpsit, for Of pleas of 
 the defendant to deny a particular allegation in the declaration, instead of ?'?'"'"'' '''- 
 pleading the general issue, which denied the whole {%) ; and it is said that 
 this was permitted, in order to bring a single point to issue, and that if the 
 jury gave a corrupt verdict they might be more easily attainted, which 
 was not so readily done on a general issue, where the matter was more 
 
 (a) GUb. C. P. 57, 63, 64. (e) Plowd. 308. 
 
 (A) Id. 63. (/) Gilb.C. P.57, 58, 61, 62. 
 
 (c) Id. 65; Salk, 279; 2 Str. 733; 1 B. & (j,) /rf.64, 65. 
 
 P. 481; 4 Taunt. 105; sed vid'. post. lh)~Id. 57. 
 
 id) GUb. C. P. 58. (t) Gilb. C. P. 60, 61 ; Boot. Plac. 203. 
 
•^"^^ OP PLEAS ra BAR. 
 
 OM^A <^°'i^Plicated (k). Thus, in assumpsit it was usual to traverse in parti cu- 
 TioHs. lar the consideration of the contract, &c. or the contract itself, or the 
 plaintiff's performance of a condition precedent, &c. but in assumpsit 
 this practice had long before the recent pleading rules become obsolete. 
 In debt for rent due by deed, the defendant might plead non est factum, or 
 nothing in arrear ; or if not by deed, non demisit, or nothing in arrear ; 
 though those matters might have been given in evidence under the plea of 
 nil debet Q). 
 
 What mat- From the history of our ancient law, it appears that in all personal ac- 
 
 fMce'al-'^ **°°^' ^^^ defendant was at liberty to show specially to the Court matters 
 
 lowed tobe of defence, not merely consisting in a denial of a material part of the 
 
 pleaded plaintiff's declaration, but introductory of new matter not apparent therein 
 
 speciaUy. ^^~) ; such as coverture, infancy, &c. which, though they were in effect 
 
 negations of the plaintiff's declaration, yet being matters of law, as to 
 
 their sufficiency in defence, were considered as properly referable to the 
 
 Court in the first instance (w) though if traversed, the existence in /aci of 
 
 such defence was then properly to-be tried by a jury (a) (1). 
 
 So in general whatever ground of defence rendered the fact complained 
 of laivful, being matter of justification, was to be shown to the Court, as 
 a license, &c., because the Court are judges what is the law, and how 
 far the fact, if it had occurred or existed, was lawful, and the jury were 
 only to find the existence of the fact. Anciently the general issue was 
 seldom pleaded, except when the party meant wholly to deny the charge 
 alleged against him; and when -he meant to distinguish away or palliate the 
 charge, it was usual to set forth the particular facts in a special plea, 
 which was originally intended to apprise the Court and the adverse party 
 of the nature and circumstances of the defence, and to keep the law and 
 the fact distinct. But the legislature in many cases have expressly per- 
 mitted the general issue to be pleaded, and have allowed special matter to 
 [ *474 ] be given *in evidence under it at the trial (2). These were originally con- 
 
 (Ar) Gilb. C. P. 61, 139, 148; 3 Leon. 66. (n) Id. Lord Raym. 88. 
 
 (I) Id. 61, 62. (o) Id. 
 
 (;n) 7rf.62, 66. 
 
 (1) Matters of defence, not coming under any known plea, may be set fortli specially. Bon- 
 affe V. Woodbury, 12 Pick. 456. Matter arising after an action is commenced must be pleaded 
 specially. Andrews v. Hooper, 13 Mass. 572. 
 
 Matter jroing only in mitigation of damages should not be specially pleaded. Pope o. David- 
 son, 5 .J. J. Marsh. 400; Joy v. Hall, 4 Vermont, 455. 
 
 (2) In the State of New York, any special matter may be given in evidence under the general 
 issue, if notice of the matter so intended to be given in evidence have accompanied the plea. 
 Sess. 36. c. 56. s. 1; 1 R. L. 515; 2 Rev. Stat. 352, s. 10. See Rule 20, Sup. Ct., and Rule 
 23, Circt. Ct. of Pennsylvania. As to notices of special matter under the general issue and 
 what they mustcontain, see Kane v. Sanger, 15 Johns. 89; Shepard v. Merrill, 13 Johns. 475; 
 Bissell V. Cornell, 24 Wendell, 354; Chamberlains. Gorham, 20 Johns. 746; Brooks ». Bemiss, 
 8 Johns. 455; Fullers. Rood, 3 Hill, 258; Edwards ». demons, 24 Wendell, 480; Washburn 
 V. Mosely. 22 Maine, 160; Chase v. Fisk, 16 ib. 132; Bricket v. Davis, 21 Pick. 404 ; ante, 233 
 in note. Fuller ». Rood, 3 Hill, 2-58; Lowry ». Hall, 1 Hill, 663; Ripley e. Burgess. 2 Hill, 
 8G0; Van Epps v. Harrison, 1 Denio, 246. But in Covenant, in which there is no general issue, 
 there can be no notice. See, however, Bender v. Fromberger, 4 Dall. 439; Webster v. Warren, 
 2Waah. C. C.456; Whart. Dig. 141, for the practice in Pennsylvania; and for the same reason, 
 notice of special matter cannot t)e given in an action on a judgment of Recognizance. Service v. 
 Heermance, 1 Johns. 42; BuUis v. Giddons, 8 Johns. 82; Beadle v. Hopkins, 8 Caines, 150. 
 Such notice forms no part of the record ; an admission in it does not excuse the plaintiff from 
 proving the matters charged in his declaration audit will not help a defect in the declaration; 
 Vaughan v. Havans, 8 Johns. 109. See Ven Steenberg v. Bigelow, 3 Wendell, 42. See further 
 Raymond v. Smith, 13 Johns. 329; Shepard v. Merrill, 31 Johns. 475; Lawrence v. Kines, 10 
 
OF PLEAS IN BAB. 474 
 
 fined to certain public officers, such as justices of the peace, constables, o^neral 
 overseers, custom-house and excise ofBcers, who in fulfilling their arduous "foN^^'^" 
 duties were frequently drawn into peril of liability to an action for mis- 
 take or informality in the hona fide execution of their respective offices. 
 It was observed by Sir Wm. Blackstone, that though it should seem 
 much confusion and uncertainty would follow from so great a relaxation of 
 the strictness anciently observed, yet that experience had shown it to be 
 otherwise, especially with the aid of a new trial, in case either party be 
 unfairly surprised by the other (ji). That supposition for a long time pre- 
 vailed, but recently a diflferent policy has prevailed, and which induced 
 the Courts to promulgate the general rules of Hil. T. 4 W. 4. 
 
 It may be most convenient to arrange the observations respecting Pleas Division of 
 in Bar under the following divisions : jeoVof'' 
 
 pleas in 
 
 1. Op the several Pleas in Bar in each Action, and when or not bar. 
 THE Plea must be special. 
 
 First. — Before the recent Rules relating to Pleadiiig. 
 
 1. On Contracts. 
 In Assumpsit. 
 In Debt. 
 
 In Covenant. 
 
 In Account. 
 
 In Detinue. 
 
 In actions by and against executors. 
 
 In actions by and against heirs or devisees, 
 
 2. For torts. 
 In Case. 
 In Trover. 
 In Replevin. 
 In Trespass. 
 
 3. In Ejectment. 
 
 4. When or not it was advisable to plead specially or only the 
 
 general issue. 
 6. Estoppel.. 
 
 6. All defences to be pleaded. 
 
 7. Of suffering judgment by default as to part. 
 
 8. Of sham and issuable pleas. 
 
 9. Instances where general issue given by statutes. 
 
 (y) 3 Bla. Com. 305, 306; Boote's Suit at plea as opposed to the general issue, 1 toI. Ld. 
 
 Law, 93, 231; sed vide 1 East, 217; Lord Erskine's Speeches, 275 to 278; Sir Wm. 
 
 Raym. 88, 217, 566 ; and see 12 Mod. 877; and Jones's Speeches of Isseus, toI. iv. 4th edit. 
 
 Bee the observations on the use of a special 94; vol. ix. 8to. edit. 60; and post. 
 
 Johns. 142; Kane d. Sanger, 14 Johns. 89 ; 4 Pet. S. C. R. 411, where it was held, "every 
 thing which disaffirms the contract , everything which shows it to be void, may be given in evidence 
 under the general issue in an action of assumpsit." In Massachusetts, special pleading is abolished 
 by statute 1836, Ch. 273. The statute of Maine, 1831, Ch. 514, abolishing special pleading is 
 to be understood as limited to pleas in bar. Gordon v. Pierce, 2 Fairf. 213. So in New Hamp- 
 shire, Cocheoo Co. v. Whittier, 10 N. Hamp. 805. 
 
 The statute of Ohio, authorizing notice of special, matter to be given with the general issue, 
 dispenses only with form. The notice must contain the substance of a good defence. M'Clin- 
 tock V. Inskip, 13 Ohio, 21. And where the general issue is pleaded, admissions made in a no- 
 tice, filed with the plea, of matters which will be set up in defence, cannot be taken advantage 
 of by the plaintiff to excuse him from proving every thing necessary to support his action. 
 Sutiflf V. Gilbert, 8 Ham. (Ohio,) 405; Bump v. Smith, 11 N. Hamp. 48. 
 
476 
 
 OP PLEAS IN BAK. 
 
 oS'ravA- Secondly.— >SOTce the recent Statutes and Pleading Rules, Hil. T. 4 W. 
 TioNs. 4, &;c. Statement of the enactments and rules and the al- 
 
 terations they have introduced.' 
 
 II. The Qualities and Requisites of Pleas. 
 
 III. The Construction op Pleas. 
 
 IV. Op the Forms and parts op Pleas in Bar. 
 V. Op several Pleas in Bar. 
 
 VI. Op Pleas by several Dependants. 
 
 VII. Op Set-opp and Mutual Credit. 
 
 I. Op the several Pleas, in Bar, and when or not to Plead spe- 
 cially. 
 
 foreihe^'' ^'rst.— 5e/ore the recent Enactment and Rules relating to Pleading, 
 recent en- 
 actments Before we proceed to consider the recent enactments, rules, and de- 
 reialing'to ^'^'.""^ '^^^'^^ are now to be observed in practice it seems essential to take 
 pleading. ^ '^lew of the previous regulations, and most of which have still extensive 
 In As- influence in practice. 
 sumpsit. 
 
 Before the recent pleading rules, the most comprehensive plea in an 
 action of Assumpsit was non-assumpsit, {i. e. " that the defendant did not 
 undertake or promise as alleged in the declaration,") and on that account 
 was called the general issue although improperly so. When the allega- 
 tions in the declaration, whether indebitatus assumpsit or special as- 
 sumpsit, are considered, it will be obvious that a plea that the defend- 
 ant did not undertake or pvomise, naturally 2iaA in terms only puts in is- 
 sue the allegation of the promise, and not the allegation that the defend- 
 ant was indebted in an indebitatus count, (unless, as has been insisted, the 
 previous debt or consideration is parcel of the promise,) {q) nor is it any 
 grammatical answer to the inducement, consideration, averments of per- 
 formance, and a breach or breaches in a special count (r), except s^ to 
 the statement of the promise, and yet in modern times, and until the Reg. 
 Gen. Hil. T. 4 W. 4, came into operation in Easter term, 1834, the plea 
 
 (?) Passenger v. Brookes, 1 Bing. N. C. (r) See the form of special count, ante. 
 587; 1 Hodges, 123. 262. 
 
 The filing of a brief statement under the statute of Maine entitles the party to the same rights 
 as he would have had at common law, before the statute, by pleading the same matter specially, 
 and no more. Williams College v. Mallet, 4 Shepley, 84. The brief statement must specify the 
 matter relied upon in defence, which does not come under the general issue, with as much cer- 
 tainty and precision, to a common intent, as if inserted in a special plea. Washburn v. Mosely, 
 9 Shepley, 160. See Potter ». Titoomb, 4 Shepley, 423. See also Appleton v. Donaldson, 3 
 Barr, 881 ; Thompson i>. Bowers, 1 Douglas, 32l. Since the statute of Massachusetts of 1886, 
 c. 273, abolishing special pleas in bar, the brief statement required by the rules of court, must set 
 forth every defence, which would require a special plea at common law, such as a denial of the 
 corporate existence of the plaintiff. Plymouth «, Maoomber, 3 Metcalf, 235. Under that stat- 
 t, ute the defendant cannot avail himself of special matter under the general issue, unless it is set 
 forth in the brief statement required by the rules of the court. Plymouth v. Macomber, 3 Met- 
 calf, 235; Newburyport ii. Currier, 3 Metcalf, 417 ; Washington Bank v. Brown, 2 Metcalf, 298. 
 The rule does not apply to evidence introduced to rebut evidence offered by the other party. Par- 
 kers. Green, 8 Metcalf, 137. See Webb o. Steele, 13 N. Hate p. 231. Wliere the brief state- 
 ment is bad for generality, it should be objected to for that cause, and the court will order it to 
 be amended ; and it should be objected to before trial, otherwise the defendant will be allowed to 
 prove the defence in particulars under his general statement Robinson v. Wadsworth, 8 
 Metcalf, 67. 
 
first: — BEFORE THE RECENT RULIS. '476 
 
 of non-assumpsit -was considered not only as putting in issue every alle- i" 
 gation in the declaration, as well the promise as the inducement, consid- 
 eration, and all averments in fact, but also as enabling the defendant to 
 give in 'evidence every description of defence which showed that the 
 promise was void or voidable, or that it had been performed; so that 
 very frequently the pleadings on the record entirely mislead the plaintiff 
 and the Court and jury as to the real point to be tried, and upon the trial 
 the defendant might even show that he or she was under age or covert 
 at the time of the contract. The inconvenience resulting from this illogi- 
 cal and uncertain state of pleadings led to the improvements introduced 
 by the rules alluded to, and which will hereafter be fully stated. But 
 first it will be advisable to show the practice existing before those rules 
 were promulated (1). 
 
 1. Op the Several Pleas. 
 
 First. — Before the Recent Rules. 
 
 The generalissue in an action oi Assumpsit was " that the defendant did 
 not undertake or promise in manner and form as the plaintiff hath com- 
 plained against him and of this the defendant puts himself upon the coun- 
 try Sfc." (.v), and if nil debet were pleaded, it might be treated as a nulli- 
 ty (<}. The allegation '■'■modo et forma" did not put in issue the form of 
 the count, but only the substance of th"e promise ; for which reason the 
 plaintiff might give in evidence a contract different from that mentioned 
 in the declaration, in regard to time ov place when immaterial, though not 
 a contract different in substance (m). 
 
 It was always a rule, that when the defendant insisted that no such con- Nod-m- 
 tract as stated in the declaration had been in fact made, he must have ^hen/or- 
 pleaded the general issue {x). Under that plea also he might give in evi- meriy re- 
 dence various matters of defence, although they admitted that a contract 1"^H® °' 
 had in fact been made, but denied that it was in law obligatory upon the de- 
 fendant, as that another person ought to have been made co-plaintiff (^)(2); 
 also the defendant's incapacity to contract ; as that at the time the supposed 
 contract was entered into, the defendant was an infant (a) (3), luna- 
 
 (s) See the precedents, posi, vol. iii.; Com. field, C J., 4 Tatmt. 165; see Tidd, 9th ed. 
 
 Dig. Pleader, 2 G. 1; 3 D. & R. 621. "JVot 563, 476. 
 
 guiZfy" is bad on demurrer, but would be aid- (u) Gilb. C. P. 52;' Co Lit. 282 b'; Vin. 
 
 ed by verdict; Stra. 1022; Cases temp. Hardw. Abr. Modo et Formaj 4 Taunt. 320; per Tin- 
 
 173; but cannot be treated as a nullity, 1 dal, C. J., 6 Bing. 107; ante 297, 298,305, 
 
 Dowl. 453 (847). ' as to variances. 
 
 (0 JVil debet pleaded in assumpsit is a nul- (x) Com. Dig. Pleader, 2 G. 
 lity, though it has been observed, " that it ex- (j) Jlnte, 13. 
 
 pressed the sense of the general issue in as- (z) 1 B. & P. 481, note (a); 1 Salk. 279. 
 tumpsit better than nan assumpsit," per Mans- 
 
 (1) Cavene v. M'Michael, 8 S. & B. 441 ; Erlington v. Doshant, 1 Lev. 142. 
 
 (2) Mitchel V. Dall, 2 Harr. & GiU. 159. Vide Baker v. Jewell, 6 Mass. 460; Converse v. 
 Symmes, 10 Mass. 377. Orthat the contract was made with one of. the .plaintiffs alone. , Wils- 
 ford V. Wood, 1 Esji. 178. Or that it was made by all the defendants against whom the action 
 is brought. Tom v. Goodrich, 2 Johns. 213. 
 
 (3) Vide Wailing v. Toll, 9 Johns. 141; Stanbury ». Marks, 4 DaU. 130; Vasse ». Smith, 6 
 Cranch 281. One co- defendant cannot give in evidence the infancy of the other, the plea of 
 infancy being a personal privilege of which the party alone can avail himself. Van Bramor v. 
 Cooper, 2 Johns. 279. Bat in&ncy of the plaintiff must be pleaded in abatement Schermer- 
 horn V. Jenkins, 7 Johns. 278. 
 
 Vol. I. 63 
 
•477 
 
 nr 
 
 OP THE SEVERAL PLEAS. 
 
 tic (a) (1), or drunk (6) (2) or a *feme covert (c). But coverture, 
 ' "vrhicli had taken place since the making of the contract always must have 
 been pleaded in abatement (rf). So under non-assumpsit the defendant 
 might give in evidence that he was under duress (e) ; and the want of 
 sufficient (/) of a legal consideration for the contract, or illegality in the 
 contract itself, might be given in evidence under this plea, as gaming (g-), 
 usury (A) (3), stock-jobbing act (i), <fec. : or that the plaintiff was an 
 alien enemy at the time the contract was made {k) ; or that the contract 
 was void by the statute against frauds (Z). So a release or parol dis- 
 charge before breach (m) ; or an alteration in the terms of the contract 
 (w) ; or non-performance by the plaintiff of a condition precedent (4) ; or 
 that the contract was performed by payment, &c. (o) ; or that it after- 
 wards became illegal, or that it was impossible to perform it ; might, when 
 they constituted a sufficient defence, have been given in evidence under 
 this plea (;?). The want of a proper stamp on a bill or other written in- 
 strument was a defence under the general issue, because the stamp acts 
 not only rendered the document void, but also inadmissible {q^ (5). 
 
 Those defences showed that the plaintiff never had any cause of action. 
 Anciently matters in discharge, ■which, admitted that once there was cause 
 of action, must uniformly have been pleaded specially (r) ; afterwards a 
 distinction was made between express and implied assumpsits : in the for- 
 mer these matters were required to be pleaded, but not in the latter (s) ; at 
 
 la) 2Stra. 1104; 3 Campb. 126; 2 Atk. (h) 1 Stra. 498; Com. Dig. Pleader, 2 G. 7; 
 
 412; 2 Bl. Com. 292; IFonbl. 46,47, d. b; Fortes. 386. 
 
 49; n. 9, ace; 1 Fonbl. 46 to 72; Co. Lit. 2 (i) 1 M. & P. 145. 
 
 b, n. 12; 347 a, b; Powell on Cont. 29, 23; (fc) Dougl. 649. note 132. 6 T. E. 24; 4 
 
 Bac. Ab. Idiots, F. contra. But lunacy is not East, 497, 410; 13 Ves. 72; 3 Campb. 162. 
 
 always a defence to an action upon a contract, (0 29 Car. 2, c. B. As to pleading this, 
 
 see ante 41. see post. 
 
 lb) 3 Campb. 23; 1 Stark. 126; 2 Stra. (m) Com. Dig. Pleader, 2 G. &o. and Ae- 
 
 1104, note 1; Bui. N. P. 172; 3P. W. 131; tion. Assumpsit, 0.; 1 Campb. 249; 2 id. 
 
 1 Ves. Sen. 19; Powell on Cont. 29, 30, ace; 557; 3 Esp. R. 234. 
 
 Beawes Lex. Merc. 6th edit. 554, cites Jenk. 1 (n) 8T. R. 280. 
 
 Cent. 67, co«ira. (o) Lord Raym. 217, 666; 12 Mod. 876; 
 
 (c) 2 Stra. 1104, n. 1; Bui. Ni. Pri. 172; 1 Salk. 394; Com. Dig. Pleader, 2 G. 10, 15. 
 
 12 Mod. 101 ; 8 Keb. 228. When it should be pleaded specially, Holt.'C. 
 
 Id) 4 T. K. 681; ante, 449. N. P. 6; 4 B. & Aid. 845. 
 
 (e) 5 Co. 119; 1 Saund. 103 a. (p) 8 T. E. 263; Co. Lit. 206 a; 1 Hen. Bla. 
 
 {/) Want of consideration was certainly 65. 
 
 admissible under non assumpsit 6e/bre the late (q) Bosanquet on Rules, 105. 
 
 rules. Passenger D. Brooks, 1 Hodges, 123; 1 (r) 1 Lord Raym. 566; 12 Mod. 376;Tidd, 
 
 Bing. N. C. 687. 9th ed. 647. 
 
 1%) ILd. Raym. 87; 1 Salk. 344; Carth. (s) Vin. Ab. Evidence, ». a; 1 Salk. 280; 
 
 8561 5 Mod. 170; 12 id. 97; Com. Dig. Gilb. C.P.65. 
 
 Pleader, 2 G. 8. 
 
 (1) Vide 3 Day, 90, 100; Webster v. Woodford, in which it was held that aman might show 
 that he was non compos mentis in avoidance of his deed. S. P. per Iiord Mansfield, Chamber- 
 lain of London ». Evans, App. to Black. Com. Letters to Mr. J. Blaokstone, Philadelphia, 
 
 1773 D 149. 
 
 (2) But it seems that the intoxication must have arisen by the contrivance of the plaintiff. 
 Johnson v Medlicott, 3 P. Wms. 130. See also, 4 Desaus. Cha. 364; Arnold v. Hickman, 6 
 Manf. 15; Campbell ». Ketoham, 1 Bibb. 406; Curtis v. Bell, 1 South. 361; Wigglesworth «. 
 Steers 1 Hen. & Munf. 70. Reynolds v. Waller, 1 Wash. 164. Wade v. Col vert, 8 Const. Ct. 
 S. Carolina, 27. King v. Bryant, 2 Hayw. 496. Duncan v. M'CuUough, 4 Serg. & Rawle, 
 
 438 
 
 (8) Vide Cuyler r. Robinson, 8 Day, 68. Levy ». Gadsby, 8 Cranch, 180. Bird v. Pier- 
 
 ^°°4') The Manchester Iron Manufacturing Co. v. Sweeting, 10 Wend. 164. In that case it wee 
 held, that the neglect of the creditoiB to prosecute the principal upon the request of the surety 
 may' be given in evidence under the general issue. 
 
 (5) So the defendant may show under the general issue that he offered to perform his part oi 
 the contract, but was prevented by the plaintiff. Will v. Ogden, 18 Johns. 56. 
 
first: before the recent rules. 477a 
 
 length, however, they were allowed to be given in evidence under the m 
 general issue (<). Therefore, under the plea of non-assumpsit, the de- ■"='^s"' 
 fendant might, before the new rules give in evidence that the plaintiff was 
 a bankrupt, when that circumstance would defeat his right of action (m) ; 
 or wherp a feme covert suing alone had no interest in the contract, her 
 coverture ; but not that the plaintiff was covert, where she would have a 
 right to join in the *action, which in such case must always have been [ *478 ] 
 pleaded in abatement (y). 
 
 So also payment (x) (1) accord and satisfaction (y), a promissory 
 note, or other negotiable security, given for the debt (2) and remaining in 
 the hands of a third person, or otherwise outstanding (z) foreign attach- 
 ment (a) (3), arbitrament (6), former recovery for the same cause (c), 
 (4), a higher security given (d) and a release (e) (5), might have been 
 given in evidence under the plea of non-assumpsit, although there were 
 also a special plea, la which the ground of defence might not have been 
 correctly stated (6). 
 
 Hence it may be collected that under the general issue any matter which 
 showed that the plaintiff never had cause of action, might be given in evi- 
 
 (0 1 LordRaym. 217, 566; 12 Mod. 376. (6) 1 Lord Raym. 122, 1039; Bac. Ab. Ar- 
 
 («) 7 T. R. 897; Bui. N.P. 153; Lawes on bitrament, G. When a defence 1 Y. & T. 19 
 
 Assumpsit, 713. But in assumpsit by the pro- Cald. on Arb. 223; 9 B. & 0. 780; 4M. & R. 
 
 visional assignee of the bankrupt, it was that 571, S. C. 
 
 the fact of the bankrupt's estate having been (c) 2 Stra. 733;lSaund. 92,note2; 2Bing. 
 
 assigned "by the plaintiff to new assignees be- ■f77; 3 East, 345; 11 St. T. R. 261; 3 VPils. 
 
 tween the time of issuing the latitat and de- 304 ; sed vid. 2 B. & Aid. 668. In Smith v. 
 
 livery of the declaration, must be pleaded spe- Wilton, Guidhall, 23d February, 1830, Lord 
 
 cially, 4 B. & Aid. 845 ; see ante, 24. ^enterden declared that under the plea of gen- 
 
 (v) 4T. R. 364; 3 T. E. 627; 3 Campb. era! issue, he never would receive evidence of 
 
 893, 394; aitje, 449. ajudgment recovered in slu. action of assump- 
 
 (j) 1 Lord Raym. 217; unless after action sit, unless actual payment or tatisf action 
 
 brought, Holt, C. N. P. 6 B. & Aid. 886; 1 D. could also be shown. Campbell for plaintiff; 
 
 & R. 546, S. C. ; and now paymerd must be Kelley for defendant. In tlie following term 
 
 pleaded specially. Fidgett v. Denny, 4 Tyr. 650, however, on a new trial being moved for, his 
 
 except that in reduction of damages, it may bo lordship disclaimed all recoUectioiMif his liav- 
 
 proved under non-assumpsit, Shirly v. Jacob, ing so laid it down at Nisi Prius, bole admitted 
 
 2 Bing. N. C. 88, but then the defendant must that if he did, he was wrong. Where the de-r 
 pay costs, Adiard v. Booth, 1 Bing. TS. C. 698, fence is, that in a prior action the defendant 
 and see post. had a verdict upon the merits in his favor, 
 
 (y) 1 Lord Raym. 566; 12 Mod. 376; 5 there should be a special plea, by way of 
 
 East 230; 4 Esp. C.N. P. 181; Bao. Ab. Ao- estopped, or the jury are not bound to consider 
 
 cord; Com. Dig. Accord; Cooper i>. Philips,! the verdict conclusive in the second suit,' 2 B. 
 
 Cr. M. & Ross. 649; 10 Bar. & Cres. 329. & Aid. 662; 2 Bing. 377; M'Clel. & Y. 500. 
 
 (z) 5 T. R. 513 ; Bui. Ni. Pri. 182. (d) 3 Bast, 258; Com. Dig. Pleader, 2 G. 
 
 (a) 1 Salk. 280, 291; 1 Sauud. 67 a, note; 12; ante, 108, 104. 
 
 3 East, 867, 378; 2 Ves. Jun. 106; Com. Dig. (e) 1 Campb. 340; 2 Id. 527; 3 Esp. Kep, 
 Attachment, A.; and pleader, 2 G. 5; 5Taunt. 234; Dougl. 106; Gilb. C. P. 64. 
 
 658; see form, 2 Hen. Bla. 362. 
 
 (1) Vide Brennanu. Egan,4 Taunt. 165; Skeets v. Baldwin, 12 Ohio, 120. Although the 
 payments were made after the commencement of the suit if before trial. Bird v. Randall, 3 
 Burr. 1345; Baylies v. Fettyplace, 7 Mass. 325. 
 
 (2) The acceptance by a creditor of the note of a third person in full satisfaction of the 
 amount due on a previous note given by the debtor, will extinguish the original consideration; 
 and such acceptance may be pleaded in bar to the original cause of action. Booth v. Smith, S 
 Wend. 66. It would have been good also by yray of accord and satisfaction. Boyd v. Hitch- 
 cock, 20 Johns. 76; 6 Grancb, 253. A distinction is taken between the note of a third perton 
 and that of the debtor himself. Hughes ». Wheeler, 8 Cowen, 79. 
 
 (3) Vide Bird v. Caritat, 2 Johns. 346. 
 
 (4) Prescott v. Hall, 17 Johns. 284; Taylor v. Phelps, 1 Har. & Gill. 492; 8 Wendell, 1, 
 
 (5) Offutt V. Offutt, 2 Har. & Gill. 178. Vide Young v. Black, 7 Cranch,565. 
 
 (6) Vide Brennan v. £gan, 4 Taunt. 166; Dawson v.Fineet, 4 Yeats, 849, 
 
478 
 
 OF THE SEVERAL PLEAS. 
 
 ^ deace (1) ; and also that under that plea most matters, even in discharge 
 ■ of the action, and which showed that at the time of the commencement of 
 the suit the plaintiff had no subsisting cause of action, might be taken 
 advantage of (2). As the true object of pleading always was to apprise 
 the adverse party of the ground of defence, in order that he might be 
 prepared to contest it, and might not be taken by surprise (/), it was 
 singular that under the general issue, which in terras only denies a 
 promise, the defendant would be permitted to avail himself of a ground 
 of defence which admitted a valid promise, but insisted that it had been 
 performed, or that there was an excuse for the non-performance, or that it 
 had been discharged ; it is, as observed by Lord Holt, a practice which 
 [ *479 ] had crept in improperly, but *was then perhaps too settled to be altered (g"). 
 It had been attempted to be justified on the ground that the gist of the 
 action was the fraud of the defendant in not performing the contract, and 
 that therefore whatever showed there was no fraud, was properly in issue 
 under the plea of non-assumpsit ; but that reasoning does not appear to 
 accord with the logical precision which usually prevails in pleading (A)(3), 
 It is also at variance with the rule (which we shall hereafter consider); 
 that a matter of defence which admits the facts stated in the declaration, 
 but avoids them, should be specially pleaded (i). 
 When to There were, however, some defences which, even before the recent rules, 
 specially, either must or should be pleaded specially. Thus, though we have seen 
 that under the general issue it might formerly have been given in evidence 
 that at the time this contract was made the plaintiff was an alien enemy (Jc) ; 
 yet if the disability accrued by war after the contract was made, the same 
 should be pleaded specially (?) ; and if a neutral become an enemy pend- 
 ing the suit, this should be pleaded in abatement, as it only suspends the 
 action (jn). So in assumpsit by the provisional assignee of the bankrupt, 
 the fact 01 the bankrupt's estate having been assigned by the plaintiff to 
 new assignees between the time of issuing the latitat and delivering the dec- 
 laration,^ust be pleaded specially (w). So outlawry of the plaintiff must 
 be pleaded in abatement, if the cause of action were not forfeited (o) ; and 
 
 (/) Ante, 213. legal effect of such defenofe is, that there was 
 
 (g) 12 Mod. 377; Ld. Raym. 217, 566; see no valid contract. 
 
 Steph.2dedit.196; and post. (/f) Aide, 446; 13 Ves. 71, 72. And the 
 
 (A) Gilb. C. P. 65; 3 Bla. Com. 305, 306; Court would not allow a plea of alien enemy 
 
 ante, 472. to be pleaded with any other plea, 12 East, 
 
 (i) Perhaps the relaxation which permits 206; 1 U. & P. 222, note, 
 
 the general issue to be pleaded, where the de- (0 3 Campb. 152 to 154; 15 East, 260; 8 
 
 fence is that the contract was not binding, or T. R. 166; 6 T. R. 24; 1 U. & P. 222; 2 Id. 
 
 was invalid in its origin, on account of the 72; 2 Bla. Rep. 1326; 4 East, 504, &c. 
 
 defendant's incapacity to contract or the ille- (m) 3 Campb. 152, &c. 
 
 gality of the consideration or act to be done, is (n) 4 B. & Aid. 245; see ante, 24. 
 
 much less objectionable, as the substance or (o) Com. Dig. Pleader, 2 G. 4. 
 
 (1) Young V. Ramsdell, 2 Hill. 478; Boyd v. Weeks, 5 Hill. 393. 
 
 (2) Hilt V. Bannister, 8 Cow. 33. Vide Wilt v. Ogden, 13 .Tohns. 67, 58; Bird v. P'erpont, 
 
 1 Johns. 124; Young ii. Black, 7 Cranch, 567; Sill v. ftood, 15 Johns. 230; and the Reporter's 
 note. Heck v. Shener, 4 Serg. & Rawle, 249; Kennedy v. Ferris, 5 Serg. & Rawle, 391; Taft 
 v- Inhabitants of Montague, 14 Mass. 282; Edson v. Weston, 7 Cow. 278; Young v. Rummell, 
 
 2 Hill, 478; Boyd v. Weeks, 5 Hill, 393. Sir J. Mansfield observes, that "it is an extraor- 
 dinary thing, that nil debet expresses the sum of the general^ issue in assumpsit, much better 
 than non assumpsU. For upon non, assumpsit may be given in evidence a release, or payment, 
 or any thing that shows that there vfas no cause of action at the time of the action brought; 
 although the form of the issue is, that the defendant did not undertake, whereas the truth may 
 be that he hiis undertaken and has performed." Brennan v. Egan, 4 Taunt. 165; Manchester 
 Iron Co. V. Sweeting, 10 Wend. 164. 
 
 (3) The maker of a note may give in evidence under the general issue proceeding under the 
 ab,tcon4ing 4ebtor't act, Clarke v. Yale, 12 Wend. 470. 
 
FIRST: BEFORE THE BBCEITT RULES. 479 
 
 the defendant can avail himself of his discharge as a certified bankrupt "f 
 (p), or as an insolvent debtor (9), only by a special plea. A bankrupt's ^^hmpsit. 
 certificate obtained at Newfoundland must also have been pleaded in bar 
 (r). So neither a tender (sV nor the statute of limitations (0 (1), could 
 be given in evidence under the general issue. With regard to a set off, the 
 mode of rendering that djefence available will be fully detailed in a subse- 
 quent part of the work (m) (2). 
 
 With respect to defences under the Court of Conscience Acts, the *raode [ •480 ] 
 of taking advantage of them depending on the particular enactment, some 
 must be pleaded ; others might either be pleaded, or given in evidence un-. 
 der the general issue; and others could only bo taken advantage of by en- 
 tering a suggestion on the roll, and which suggestion might be traversed 
 or demurred to (a;). 
 
 The defendant was, however, always at liberty to plead any mailer 
 which did nol amount to the general issue (3), and admitted that in fact a 
 contract was made, but insisted that' it was void or voidable, either on ac- 
 count of the infancy, lunacy, or coverture of the defendant, or coverture 
 of a third person, whose debt defendant undertook to pay (.^), or his du- 
 ress, or that the plaintiff was an alien enemy at the time the contract was 
 made («), or for want of svfficient consideration, or on acount of illegality 
 therein, or in the act to be done, a,s usury, gaming, &c. ; or because the coa- 
 tract was void under the statute against frauds (a) (4). So a release be- 
 fore breach (i), and performance (^c')„ov payment (cf) (5), might have 
 been pleaded ; though we have seen that all matters might before the re- 
 cent rules have been given in evidence under the general issue. So all mat- 
 ters in discharge of the action might have been pleaded specially. If the 
 plaintiff's bankruptcy, which we have seen might formerly have been given 
 in evidence under the general issue, be pleaded specially, all the circum- 
 tances showing the insufficiency of the proceeding, under the bankruptcy 
 
 (p) 1 Campb. 363; 12 East, 664. See the (i) Tidd, 9th ed. 980; 3 T. R. 452. 
 forms, poU, vol. iii. ; 6 Geo. 4, 0. 16, a. 126; (y) Maggs v. Ames, 4 Bing. 470; 1 Moore 
 
 anU, 53; 4 T. R. 156; 1 P. Wms. 258, 259; & P. 290, S. C. 
 10 Mod. 160, 247; 1 B. & P. 467; 3 Id. 171; (z) Dougl. 649. 
 
 6 T. R. 496. When to plead bankruptcy of (a) 1 Wils. 305; 4 B. & Aid. 595; 1 M. & 
 
 defendant specially, see 6 East, 413; 2 Smith P. 294, 308; 4 Bing. 470, S. C. Plea to an 
 
 B. 659, S. P. action against a surety that there was no un- 
 
 {q) Ante, 55. See the forms, post, '^ol. dertaking in writing, held good in House of 
 
 iii.; where general issue suffices, 3 Moore, Lord-i, 2 Dow. & Clark R. 21. The replicition 
 
 234. to a plea of statute against frauds must set 
 
 (r) 3 Moore, 244, 623; 1 B. & B. 13, 294, forth the written signed contract, 1 Crom. & 
 
 S. C. M. 289; sed vide 11 Price, 494. 
 
 (s) 1 Saund. 33. (6) Com Dig. Pleader, 2 G. 13, 14. 
 
 (0 1 Saund. 283, note 2; 2 /d. 63 b, c; (c) Com. Dig. Pleader, 2 G. 15. 
 
 Selw. N. P. Assumpsit, 6. (d) 1 Salk. 394; Lord Raym. 787; Com. 
 
 (u) Post. Dig. Pleader, 2 G. 10. 
 
 (1) Vide 1 Craneh, Appendix, 465; Young v. Rummell, 2 Hill, 478; Boyd 1;. Weeks, 6 Hill 
 893^ Bradley v. Field, 3 Wendell, 372; Kreuzler v. Kohans, 5 Hill, 317. 
 
 (2) In the State of New York, notice of set-off may be given with the general issue in all 
 oases. Sess. 36. 0. 56. s. 1 ; 1 R. L. 515; 2 Rev. Stat. 352, s. 15. And it has been said that a 
 set-off could be taken advantage of there in no other manner. Gaines v. Brisbane, 13 Johns. 23, 
 24. See Chamberlain v. Gorham, 20 Johns. 746. 
 
 (3) See Kennedy v. Strong, 10 Johns. 289; Halsted v. Lyon, 2 M'Lean, 226; Cook v. Scott, 
 1 Gilman, 333; Ohio v. Daily, 14 Ohio, 91; Smith v. Commercial Bank of Rodney, 6 Smedes & 
 Marsh. 83; Anderson «. Patrick, 7 Howard, (.Miss.) 347; Hatch v. Hyde,- 14 Vermont, 25; 
 Bingham v. Se-ssions, 6 Smedes & Marsh. 13; Lair v. Abrams, 5 Blackf. 191. 
 
 (4) Gardner v. Webber, 17 Pick. 406; Smith v. Fah, 15 B. Mon. 443. 
 
 (5) In a plea of payment it is sufficient to allege, that the defendant paid the plaintiff the 
 several sums of money in the declaration mentioned, without stating that the plaintiff acceptec^ 
 
 . thenjoney in satisfeotion. Chew v. Wooley, 7 Johns. 399, 
 
480 
 
 OF THE SEVERAL PLEAS. 
 
 IN 
 
 ASStrUPglT. 
 
 [ "481 ] 
 
 must have been stated in the plea (e) (1). Accord and satisfaction (/) 
 foreign attachment, release (§■), arbitrament (//), or that a negotiable or 
 higher security was given for the debt, were seldom pleaded, except for 
 the purpose of delay (i) (2) ; but it was usual to plead coverture ; and ad- 
 visable to plead infancy specially, because the plaintiff would thereby be 
 compelled to reply only one of several answers which he might have to the 
 defence, viz. either that the defendant was of age, or that the goods or 
 ■work done wore necessaries, or that he confirmed the contract when he 
 came of age ; on either of which the plaintiff at his election might rely at 
 the trial in answer to the defence of infancy, if the general issue alone 
 ■were pleaded. So it was often more advisable to plead a set-off than to • 
 give notice of it, for if pleaded, the plaintiff could not reply double, but 
 must have relied on one answer alone ; *and in a country cause by plead- 
 ing it, the trouble and expense of proving the service of the notice was 
 avoided (k) (3). Indeed, the principal use of a special plea was, that it 
 narrowed the evidence to be adduced on the trial (/). 
 
 The action of debt, we have seen, might be maintained upon, 1st Simple 
 Contracts and legal liabilities; 2dly, Specialties; 3dly, Records and 
 4thly, Statutes ; and the pleas in such actions naturally are to be arranged 
 in the same order. 
 
 {e) I Lord Raym. 217. 566; 12 Mod. 376: 
 1 13. & P. 448; 7 T. R. 896. 
 
 (/) 10 B>ir. & Cres. 329. 
 
 (g) Com. Dig. Pleader, 2 G. 14. 
 
 (ft) Arbitrament, even without showing de- 
 fendant's performance, is a good plea, where 
 the parties had mutual remedies, Gaseoigne v. 
 Edwards, 1 Y. & J. 19; Allen v. Milnor, 2 Tyr. 
 113. 
 
 (i) As to sham, pleas, see the end of this 
 chapter. 
 
 (A-) But in a town cause, to save the ex- 
 pense of the rule to plead double, and the ad- 
 ditional expense of the length of the paper- 
 book, it was better to give a notice. 
 
 {I) 1 Ld. Erskine's speeches, 275 to 278; 
 Sir Wm. Jones's Speeches of Isaeus, vol. iv. 
 quarto edit. 94 ; vol. iv. octavo edit. 50. 
 
 (A) The pleading rules order that " In ac- 
 tions of debt on simple contract, other than 
 on bills of exchange and promissory notes, 
 the defendant may plead that 'he never was 
 indebted in manner and form ns in the declar- 
 ation alleged,' and such plea shall have the 
 same operation as the plea of non assumpsit 
 in indeiiitatus assumpsit, and all matters in 
 confession and avoidance shall be pleaded spe- 
 cially as above directed in actions of assump- 
 sit." 
 
 " The plea of ' nil debet,' shall not be al- 
 lowed in any action." 
 
 " In other actions of debt in which the plea 
 of nil debet has been hitherto allowed, includ- 
 
 ing those on bills of exchange and promissory 
 notes, the defendant shall deny specifically 
 some particular matter of fact alleged in 
 the declaration or plead specially in confes- 
 sion and avoidance." Reg. Gen. Hil. T. 4 
 ■W. 4. 
 
 As the operation of the plea of nunquam 
 indebilalus in debt on simple contract is ex- 
 pressly identical with non assumpsit, in as- 
 sumpsit, the decisions noticed under the latter 
 plea will be applicable to the former. 
 
 Where by an act of parliament constituting 
 a company, it is provided, that in actions by 
 the company for calls, it shall be sufficient to 
 allege that the defendant being a proi)rietor 
 of so many shares is indebted to the company 
 in such a sum of money upon such shares 
 belonging to him, whereby a right of action 
 hath accrued to the company by virtue of the 
 acts without setting out the special matter 
 and that in such action, it shall only be neces- 
 sary to prove that the defendant was a pro- 
 prietor at the time of making the calls, that 
 they were in fact made and that notice thereof 
 was given according to the act; it seems that 
 the plea of nunquam indebitatus puts in issue 
 all the matters required by the act to bo 
 proved. The Edinburgh and Leith Railway 
 Co. V. Hibbelwhite , 6 M. & W. 707. The plea 
 must follow the language prescribed by the 
 rule and a plea that the defendant never did 
 owe is bad on special demurrer. Smedleyv. 
 Joyce, 2 Cr. M. & R. 621; Tyr. & Gr. 84, S. 
 
 (1) A surety may plead that the plaintiff being requested by the defendant to collect the 
 money of the principal, neglected to do so, whereby the debt, as against the principal, was lost, 
 Pain V. Packard, 13 Johns, 174; but see Cope v. Smith, 8 Serg. & Rnwle, 110, and the cases 
 cited in the note to Rees v. Berrington, 2 Ves. Jun. 510, Am. Edit. 1821. 
 
 (2) See Hugess v. Wheeler, 8 Cow. 77. 
 
 {'■j) But a notice of set-olf can only be given with the plea of the general issue. If there be 
 any other plea besides the general issue, th« set-off must be pleaded. Webber v. Yean, 2 Carr. 
 & Payne, 300. 
 
pibst: befoee the recent rules. 
 
 481 
 
 In Debt on simple contract or legal liabilities, or for an escape, <fec. &c. m debt. 
 (»i), the general issue, before the late rules, was in the present tense nil 1st. On 
 debet, " t/tat the defendant doth not owe the said sum (n) above demanded, simple Con- 
 or any part thereof, in manner and form as the plaintiff hath abore com- *'''""*• 
 plained against him ;" or in case of executors or administrators, " doth 
 not detain; and if «ore assumpsit were pleaded, the defendant might sign 
 judgment (o). The language of this plea puts in issue the existence of 
 the debt at the time of pleading ; and consequently any matter might be 
 given in evidence under such plea, which showed that nothing was due at 
 that time, as payment, or a release, or other matter in discharge of the 
 debt (p) (1). It was even supposed that as the plea nil- debet was in the 
 present tense, the statute of limitations might be given in evidence under 
 the plea (^q) (2); but that doctrine was questionable, and the practice was 
 to plead the statute in debt, as well as in assumpsit (r) ; and a tender 
 must have been pleaded specially, and a set-off must, as in assumpsit, be 
 either pleaded or notice thereof given. Formerly wager of law might be r "482 "i 
 pleaded (*), but it was abolished by 3 & 4 W. 4, c. 42 s. 13. In "debt for 
 use and occupation nil habuit in tenementis was not pleadable (<). 
 
 In debt on a specialty it has been considered that there is a material 2illy. On 
 distinction between those cases in which the deed is only indcuement to ^P*'''*!''^' 
 the action, and matter of fact is the foundation of it, and those in which 
 
 G. So also a plea that the defendant never 
 did promise is a nullity in an action of debt, 
 and the plaintiff may sign judgment. King 
 V. Myers, 5 Dowl. 686. Fleas to actions in 
 debt, on bills of exchange and promissory 
 notes, must traverse the same facts as pre- 
 scribed by the rules relating to assumpsit. 
 
 (m) 2 Salk. 565; 1 Saund. 38. 
 
 (n) Where to a declaration in debt for a 
 named sum, as £500, and defendant pleaded 
 to the whole he don't owe £100, omitting the 
 words "above demanded," semble, plaintiff 
 may sign judgment, 3 B. & P. 174; or demur, 
 1 D. & R. 473; 11 East, 62; but if he take 
 issue, the Court would not order the defendant 
 to amend his plea, 1 D. & R. 473; and semble, 
 that where the words "above demanded" are 
 introduced, the sum specified, if incorrect, 
 may be rejected, id. ibid. At all events the 
 plaintiff is not at liberty to sign judgment, id. 
 ibid.; 1 M. & P. 276. 
 
 (o) 6 East, 549; 4 Taunt. 164; Sac. Ab. 
 Pleas 1. 
 
 (p) Com. Dig. Pleader, 2 W. 16; 1 Ld. 
 Baym. 666, 394; 12 Mod. 876, ace; Gilb. 
 Debt, 434, 443, semble contra. Generally 
 speaking the observations which we made on 
 non assumpsit, ante, 478, equally apply to nil 
 debet. 
 
 (o) 1 Salk. 278; lLd.Raym.153; 1 Saund. 
 283, note 2; Com. Dig. Pleader, 2 W. 16; 2 
 Saund. 68 a. 
 
 (r) 1 Saund. 283, note 2; 2 Id. 63, note 6; 
 Peake's Ev. 2d ed. 271. Mr. Justice Law- 
 
 rence's opinion in 2 East, 836, has been con- 
 sidered as supporting the decision in 1 Lord 
 Ray m. 148; but note, his observation applied 
 only to penal actions, in which the statute may 
 be given in evidence under the general issue, 2 
 Saund. 63 b, c, note 6. 
 
 (s) .ante, 129. 
 
 (0 Curtis V. Spitty, 1 Bing. N. C. 15. 
 
 (A) In debt ou specialty or covenant the 
 plea of non est factum operates as a denial 
 of the execution of the deed in point of fact 
 only; and all other defences must be spe- 
 cially pleaded, including matters which make 
 the deed absolutely void, as well as those 
 which make it voidable. Reg. Gen. Hil. T. 4 
 W.4. 
 
 If a public body be incorporated by a stat- 
 ute, with a special power of executing a deed 
 in a certain form, non est factum puts in is- 
 sue whether the deed was executed in the 
 legal form; Hill v. Manchester and Salford 
 Water Works Co., 2 N. & M. 673. And un- 
 der this plea, an alteration in a deed after 
 execution may be given in Evidence; Per 
 Gurney, B. Cook v. Coxwell, 2 Or. M. & R. 
 292; See also per Parks, B. 4 M. & W. 418; 
 but see Hemming v. Trenery, 9 A. & E. 926; 
 but in an action on a, bond a variance, even if 
 material between the name of the defendants, 
 as stated in the declaration and in the bond, 
 cannot be taken advantage of, under the plea 
 of non est factum,. Williams v. Bryant, 6 M. 
 & W. 447. 
 
 (1) Vide Lindo v. Gardner, 1 Cranch, 343; Id.; Appendix, 466. 
 
 (2) Vide Davis v. Shoemaker, 1 Rawie, 135, semble ace. The statute of limitation is not a 
 bar to an action of debt upon award under the hands and seals of arbitrators, although the 
 submission be not under seal; Smith v. Lockwood, 4 Wend. 241. 
 
482 OF THE SEVEKAL PLEAS, 
 
 IK DEBT, the deed itself is the foundation, and the fact merely inducement. In the 
 former case, as in debt for rent due on an indenture of lease, though the 
 plaintiff had declared setting out the indenture, yet as the fact of the sub- 
 sequent occupation or holding gave thc'right to the sum demanded and 
 was the foundation of the action, and the lease was mere inducement, the 
 defendant might plead nil debet (m) (1). For the same reason that plea 
 was suf&cient in debt for an escape (a;) (2), (except where the defence 
 was a recaption) {t/), or on a devastavit against an executor (z) (3) : the 
 judgment in these actions being merely inducement,. and the escape or de- 
 vastavit the foundation of the action (a). The plea o^nil debet in these 
 casps, as in the instance of the general issue in assumpsit, put the plain- 
 tiff on proof of the whole of the allegations in the declaration (4) ; and 
 under it the defendant might give in evidence an eviction (i), payment, 
 or a release, or that the escape was occasioned by the plaintiff's fraud 
 and contrivance, &c. (c). But in debt for rent on an indenture of lease, 
 the declaration not showing the deed, the defendant could not, under the 
 plea of nil debet, give in evidence that the plaintiff had no estate in the 
 tenements ; because, if he had pleaded that specially, the plaintiff might 
 have replied the indenture and estopped him (cJ) (5). In debt for rent 
 on a parol lease non demisit might be pleaded (e), but not in debt for 
 rent on an indenture, even by an assignee of the leaie (/). And rien in 
 arrere it was said, was not a sufficient plea, without concluding et issent 
 nil debet {g) ; and it was optional in the defendant cither to plead an evic- 
 tion, or to give it in evidence upon nil debet, though in covenant he mast 
 have pleaded it (h) (6). 
 
 When the deed was iha foundation of the action, although extrinsic facts 
 are mixed with it, the defendant, if he deny his execution of the deed set 
 forth in the declaration, should plead non est factum, and nil debet was 
 not a sufficient plea (i) (7) ; as in debt for a penalty on articles *of agree- 
 ment (A;), or on a bail bond (/) or on a bond setting out the condition and 
 
 (7t) Gilb. C. P. 62; Ld.Eaym.1600; 1 New (c) Glib. Debt, 438. 
 
 Rep. 104; 1 Saund. 276, notes 1, 2; 202,211; (/) W. 436; see the cases and arguments, 
 
 2 Id. 297, n. 1. 2 Taunt. 278, &o. 
 
 (r) 3 Salk. 565; 1 Sftund. 38. note 8. (g) Gilb 440, cites Bro. Debt, 118; Keilw. 
 
 (!/) 8 & 9 Wm. 3, c. 27, s. 6; post. 153; Gilb. Debt, 440; but see Cowp, 688, and 
 
 (z) 1 Saund. 219; Garth. 2. the forms, post, vol. iii. 
 
 (tt) 1 Saund. 219; Carth. 2; Com. Dig. (A) 1 Saund. 294, note 2. 
 
 Pleader, 2 W. 16; 2 Saund. 144, n. 2; 1 (i) 1 Saund. 38, n. 3; 2 /</. 187 a, n. 2; 2 
 
 Saund. 218, u. 4; 219, n. 7. Ld. Raym. 1500. The instance of debt for 
 
 (b) 1 Saund. 204, note 2. rent seems to be an exception. 
 
 (c) 1 M. & M 169. (k) See preceding note; 2 Ld. Baym. 1600; 
 Id) 1 Salk. 277; 8 T. R. 487. From the 2Stra.778; 1 Barnard, K.B. 16; 8 Mod. 106, 
 
 case in 5 T. B. 4, 2 Wils. 208, 213, it appears 323, 882. 
 
 that the tenant is estopped from disputing the (0 Id.; Fortesc. 363, 867; 2 Saund. 
 
 title though the demise was by parol ; ^nd see 187 a. 
 
 further as to this, 2 Bing. Bep. 10, 54. 
 
 (1) Vide BuUis v. Giddens, 8 Johns. 83. 
 
 (2) Vide Milton v. Woodworth and Ferris, 11 Johns. 474; Brown v. Littlefield, 7 Wend. 
 454. 
 
 (2) Vide BuUis v. Giddens, 8 Johns. 83. 
 
 (4) Jansen v. Ustrander, 1 Cowcn, 670; Brown v. Littlefield, 7 Wend. 456. . 
 
 (5) See Davis v. Shoemaker, 1 Bawle, 135. 
 
 (6) In debt for rent to the lessor by the assignee of the lessee, a plea of nil debet puts in iBSue 
 the whole declaration. Dartmouth College v. Clough, 8 N. Hamp. 22. 
 
 (7) Vide Minton v. Woodworth, 11 Johns. 476; Boynton v. Reynolds, 3 Mis. 79. But the 
 plaintiff must demur, and cannot oijject to it after verdict. Meyer v. M'Lean, 1 Johns, 609, 8. 
 C; 2 John^. 183; Bullis v. Giddens and Brown, 8 Johns. 88. 
 
first: before the recent rules. 488 
 
 breach (m) (1). And if in those cases nil debet were pleaded, the plain- in debt. 
 tiff ought to demur (n), for if he did not, he would have to prove every ^^3 
 allegation in his declaration, and the defendant would be at liberty to avail ^^^^'^^ ^ 
 himself of any ground of defence which in general might be taken advan- 
 tage of under the latter plea (o). A party to a deed who means to deny 
 must plead non est factum, and cannot in pleading deny its operation by 
 averring that " he did not grant," " did not demise," &c., bat a stranger 
 to the deed need not plead wore est factum, but may deny the effect (p) 
 as by pleading nonfeoffavit, Sfc. (g). 
 
 In debt on bond or other specialty, when the deed is the foundation of 
 the action, the plea of wom est factum (r) is proper (2) ; either when the 
 plaintiff's profert cannot be proved as stated (s) ; or the deed was not exe- 
 cuted (3), or not duly stamped (f), or varies from the declaration either 
 by a mis-statement, or by the omission of a covenant or clause, constituting 
 a condition precedent or exception (m). The plea of non est factum 
 where a variance is relied upon, should not set out the deed on oyer (x). 
 And the defendant may give in evidence under the plea of non est factum 
 that the deed was delivered to a third person a's an escrow, (though it is 
 more usual to plead the fact) Q/') ; or that it was void at common law ab in- 
 itio (z) (4) as that it was obtained by fraud (a)(5) ; or whilst the party was 
 
 (m) 2 Saund. 187 a, note 2. (j) 4 Esp. Eep. 225; 6 Mod. 2175 1 Sid. 
 
 (n) A general demurrer will suffice, 2 Wils. 450; lSalk.274; 2 Rol. Ab. 683 ; Sir T. Raym. 
 
 10. . 197; Com. Big. Pleader, 2 W. 18; 4 East, 94; 
 
 (0) 5 Esp.Kep. 38; 2 Saund. 187 a, note 2; 1 Bar. & Add. 226. 
 
 2 Wils. 10. (s) 5 Co. 119; 2 Wils. 341, 447; but see 
 
 (p) Doct.Plao.261; 2 Taunt. 278; Stephen, 2 Chit. Rep. 334; 2 Stark. 35, S. C, where 
 
 2d edit. 237, 238, 239. What the general it was ruled that the defendant cannot, under 
 
 traverse puts in issue, 1 Cromp, & Jerv. 48; the plea of non est factum to a declaration 
 
 sed vide 2 Taunt. 282. upon a bond, go into evidence to show 
 
 iq) 3 Nev. & Man. 60, in note. that the consideration, was illegal at com- 
 
 (r) See the rule in general, 1 Tyrw. 197, mon law. See 11 Moore, 91; 3 Bingh. 322, 
 
 205, 206. S. C, 
 
 (s) 4 East, 585; Com. Dig. Pleader, 2 W. (o) 2 Campb. 272, 273; quoted and over- 
 
 18. ruled as a general position in Edwards v. 
 
 (i) 6 T. K. 317. Brown, 1 Tyr. "Rep. 196. Where it was hold- 
 
 (») jfnfe, 808, 309; 11 East, 638; 1 Campb. en that a fraudulent misrepresentation of 
 
 70; Com. Dig. Pleailer, 2 W. 18; 2 Stra. 1104; the legal effect of a deed must be pleaded spe- 
 
 and see 6 Taunt. 894; 2 Marsh. 96, S. C.; 4 cially. The case in 2 Campb. only proves that 
 
 M. & Sel. 470; 5 Moore, 164; 1 Stark. 294; 2 coverture may be given in evidence under non 
 
 D. & R. 662. est factum. 
 
 (i) Ante, 433. 
 
 (1) Allen V. Smith, 2 Halst. 158. JVil debet is not a good plea to an action of debt on a 
 recognizance. Bullis v. Giddings, 8 Johns. 82; Xiblo v. Clark, 3 Wendell, 24. But, this 
 is a good plea to an action of debt on u bond for the jail limits. Minton «. Wooclworth, 11 
 Johns. 474. 
 
 (2) This plea only pats the deed in issue, and the plaintiff need not prove the other aver- 
 ments in his declaration. Gardner t\ Gardner, 10 Johns. 47. In covenant or debt the plea of 
 non est factum only puts in issue the giving of the deed, and it is not necessary in such a cose 
 for the plaintiff to prove the averments or breaches contained in his declaration; the plea 
 admits all material averments. Iiegg v. Robinson, 7 Wend. 194; Courcier v. Graham, 1 Ohio, 
 330. See Reynolds v. Rogers, 5 Ohio, 169; Braiee v. Blake, 5 Ohio, 340; Granger v. Granger, 
 6 Ohio, 35. 
 
 (3) See Seymonr v. Harvey, 8 Conn. 63. 
 
 (4) Phelps 0. Decker, 10 Mass. 267, 274; Anthony v. Wilson, 14 Pick. 303, 405; Bottomley 
 t). IT. States, 1 Story, C. C. 135. As usury, Colton v. Lake, 2 Mass. 540; Jackson v. Stetson, 
 15 id. 48, 54. 
 
 (5) As that a different instrument was substituted instead of the one which the defendant 
 supposed he was executing. Van Valkenburg e. Rouk, 22 Johns. 337$ Taylor v. King, 7 Munf. 
 358. So, the defendant may give in evidence under non est factum, that he was made to sign 
 
 YoL. I. 64 
 
•484 OF THE 8EVEEAL PLEAS. 
 
 IS DEBT, drunk (i) ; or made by a married woman (c) (1) ; or a lunatic (d) (2) ; 
 sDeoialti" °'" ^ P6'"s°° intoxicated, &c. ; or that it became void after it was made, and 
 before the *commencement of the action (e), by erasure, alteration, addi- 
 tion, &c. (/). If only non est factum be pleaded, and it appear that the 
 obligor could not write, defendant's counsel cannot inquire into circumstan- 
 ces (jg-). And matter which shows that the deed was merely voidable (^h) 
 (3) on account of infancy (i) (4) ; or duress (j) ; or that it was void by act 
 of parliament (A;), in respect of usury {I}, usury must be pleaded, and can- 
 not be objected to by setting out the deed and demurring (»i), gaming («), 
 &c. ; or that a bail bond was not made according to the 23 Hen. 6, c. 9 ; 
 must in general be pleaded. In a case, however, of a bail bond, if it ap- 
 pear upon the face of the declaration that the bond has been made contra- 
 ry to the provision of the statute, the defendant may, demur, or move in 
 arrest of judgment after verdict upon plea of non est factum (o ). An4 if 
 a bail bond be dated and made after the return-day of the writ, the defend- 
 ant may avoid it under a plea of wow est factum (p). Defence arising on 
 statutes must in general be pleaded specially, and therefore under non est 
 factum defendant cannot insist that an annuity bond ought to have been 
 • enrolled (q}. And defendant, in an action on a bail bond, cannot plead 
 or show that the affidavit to hold to bail was defective (r), or not filed (s) 
 or perhaps that there was not any affidavit (s) under the plea of non est 
 factum, or take advantage of the objections that the action is brought in 
 
 (A) Jlnte, 476; 8 Campb. 83. 7 East, 529, ace; but see 4 M. & Sel. 838. 
 
 (c) Com. Dig. Pleader, 2 W. 18; 12 Mod. How to plead illegality of consideration, see 
 
 10); 3Keb.228; 2Stra.ll04; anie,W. 11 Moore, 91; 8 Bing. 322, S, C. Usurymost 
 
 {d) 3 Campb. 126; 2Atk. 412; 8 Mod. 310; be pleaded to action on a deed; and though 
 
 2 Stra. 1104; 4 Co. 123; Ld. Raym. 315; 2 apparent on face of same, a demurrer would . 
 
 Salk. 675; see ante, 476. not be sustainable, 8 Nev. & Man. 666; 1 Adol. 
 
 (c) 5 Co. 119 b, ace; Sav. 71, semble con- & El. 676. 
 
 tra. {I) 1 Stra. 593; Com. Dig. Pleader, 2 W. 
 
 (/) 5 Co. 23, 119 b; Bui. Ni. Pri. 172; Co. 28. 
 
 Lit. 85 b; notes 6, 7; 226; 11 Co. 27,28; (m) Ferguson r. Sprang, 1 Adol. & EI. 576 ; 
 
 Tvhat sufficient, 4 Cruise, 368. i Nev. & Man. 16'), S. C. 
 
 (g) Cranbrpok v. Dadd, 6 Car. & P. 402. (ji) Com. Dig. Pleader, 2 W. 26; 1 Campb. 
 
 (A) 5 Co. 119a; Gilb. Debt, 437 ; 2 Salk. 291. 
 
 675; 1 Lord Kaym. 815. (o) 1 Sannd. 161, n. 1 ; 2 T. R. 606; 2 
 
 (0 1 Salk. 279; 3 Burr. 1805, 1794; 2 Saund. 60, note 8 ; 1 Bar. & Adol. 226. 
 
 Inst. 483; 3 Mod. 310; 3 M. & Sel. 478; 2 (p) 4 M. & Sel. 388. 
 
 Stra. 1104 ; note (i) ; 1 Tyrw. 207, S. P. (q) Mestayer v. Biggs, 4 Tyr. 471 ; 2 Dowl. 
 
 {j) 1 I'yrw. Kep. 207; and so must fraud, 696. 
 
 id. ibid.; Co. 119 a; 2 Inst. 482, 483; Com. (r) Norton v. Danvers, 7 T. B. 876; Hume 
 
 Dig. Pleader, 2 W. 19, 20; Bac. Ab. Pleader, v. Liversedge, 1 Cr. & M. 832; 1 Dowl. 660. 
 
 G. 3; Duress, D.; Bui. N. Pri. 171; 9 Vin. (») Knowles ■,. Stevens, 1 Cr. M. & R. 26; 
 
 Ab. 322; 1 Saund. 155, note 4. sed quare as to plea that no affidavit was 
 
 (/f) 6 Co. 149 a; Bui. Ni. Pri. 224; 2 Saund. made, per Alderson, B. 
 165 a, note 4; 9 East. 408, 416; 13 East, 87; 
 
 the instrument when so drunk as not to know what he did. Phillipp's Ev. 128; Pitt v. Smith, 
 8 Campb. 33; Dorr v. Munsell, 13 Johns. 430. In an action at law on a specialty, it is not 
 competent for the defendant to avoid it, by pleading that it was obtained on fraudulent misrep- 
 resentations made by the plaintiff. Wyche v. Macklin, 2 Rand. 426; Vrooman v. Phelps, 2 
 Johns. 177; Franchot v. Leach, 5 Cow. 606. Aliter in Pennsylvania, where there is no court 
 of equity. Stubbs v. Pyle, 14 Scrg. & Rawle, 208; Stoever v. Weir, 10 Serg & Ba*le, 25, and 
 in New Jersey the law is the same as in Pennsylvania. Mason v. Evans, Oaxe, 182; Barrows 
 V. Bispham, Halst. 110. 
 
 (1) Contra, Marine Ins. Co. of Alexandria v. Hodgson, 6 Cranch,- 219, Per Living- 
 ston, J. 
 
 (2) Vide ante, 611. 
 
 (8) Worcester v. Eaton, 13 Mass. 871 ; Hills v. Elliott, 12 ib. 26. 
 (4) Vide Marine Ins. Co. of Alexandria v. Hodgson, 6 Cranch, 119. 
 
PraST: BEFORE THE RECENT RULES. 484a 
 
 the wrong Court (<) (1). Aud a specialty cannot in general be avoided m bbw. 
 by usury, or other illegality in the consideration appearing merely in evi- 2dly. On 
 dence, or on the face of the condition, but the fact must be pleaded gpe- ^P*"'*"'**- 
 cially (2), and the defendant cannot demur (u). The defendant must also 
 plead specially payment of a bond, &c. (3) either on or after the day (v)': 
 apd *where no interest has been paid on the bond after the time mention- [ "485 ] 
 ed in the condition, and there is no other circumstance to negative the 
 presumption of payment on that day, arising from twenty years having 
 elapsed, then the plea may be solvit ad diem, but otherwise it should be 
 soluit post diem (a;). So performance, or any matter in excuse of it, as 
 non damnificatus to a bond of indemnity (y)(4) ; no award to an arbitra- 
 tion bond (2) (5) or to a bail bond no process to arrest the defendant, <fec. 
 (a) ; and matters in discharge of the action, as a tender, set-off (6), ac- 
 cord and satisfaction (c) (6), former recovery, release, and foreign attach- 
 ment (rf) (7), must be pleaded in this action (A). The nonjoinder of a 
 00-obliger is immaterial except upon a plea in abatement (e). 
 
 (0 2 Campb 396. (A) It is to be observed, however, that al- 
 
 (u) 2 Bl. U. 1108; 1 Saund. 295; 2 M. & though iu an action on a bond, performance, 
 
 S. 377; 2 Chit. Rep. 334; 2 Stark. 35, S. C. or that the obligee was damnified by his own 
 
 (») 4 Anne, 0. 16; solvit post diem, is not wrong should be specially pleaded; yet when 
 
 pleadable to suit by the crown, 1 Price, 23. the damnification is not by the wrong of the 
 
 (x) 1 Stra. 652; and see Rep. temp. Hardw. obligee, or is not a damnification arising on 
 
 143, as to these pleas in general. the contract, and would not be an answer to 
 
 {y) 1 B. & P. 640, note a; 1 Taunt. 428; the action, the defendant may take advantage 
 
 quality and form of this plea, post. of the circumstance under non est factum in 
 
 (s) Misconduct of arbitrator not pleadable, reduction of damages ; as when in an action 
 
 2 M. & 1'. 345. against the defendant on a bond conditioned 
 
 (a) Say. 116. for the performance of a contract by a third 
 
 (A) 8 Geo. 2, c. 24, s. 5; Bui. N. P. 172; person, the loss arose not from the non-per- 
 
 Willes, 262, 263. formance of the contract, but from the plain- 
 
 (c) There is no plea to debt on a money tiff having advanced a larger sum to the con- 
 bond, &c. ; see 7 East, 150; Com. Dig. Accord tractor by way of instalment, than the contract 
 and satisfaction; 1 Taunt. 428. required him to do. Warn v. Calvert, 7 A. & 
 
 (d) 1 Saund. 67 a, note 1 ; Co. Ent. 139 b, E. 143; 2 N. & P. 126, S. C. 
 42a; Lib. Plac. 160, pi. 113; 2 Lib. Intrat. (c) Ante,^6. 
 
 164; 2 Show. 374; 3 East, 378. 
 
 (1) And bail in an action against them will not ba permitted to deny the arrest of the prin- 
 cipal. Bean v. Parker, 17 Mass. 591. 
 
 (2) See Cowles v. Woodruff, in Equity, 8 Conn. 35. 
 
 (8) In Pennsylvania, matters that show fraud or want of consideration may be given in 
 evidence under plea of payment, notice being given to the adverse party. Baring v. Shippen, 
 2 Bin. 154. See 8 Serg. & Eawle, 25, 26; Gouchenauer v. Cooper, 8 Serg. & Rawle, 187. 
 Upon the plea of payment to debt on bond, it is competent for the defendant to give in 
 evidence, that wheat was delivered to the plaintiff on account of the bond, at a certain price, 
 and that the defendant assigned sundry debts to the plaintiff, part of which was collected 
 by the plaintiff, and part lost by his indtdgence or negligence. Buddington v. Kirk, 3 Cranch, 
 293. 
 
 (4) Andrus v. Waring, 20 Johns, 162._ To an action of debt for the penalty of a bond given 
 to a sheriff for security for the liberties of the jail, non damnificatus is not a good plea. Camp. 
 V. Allen, 7 Halst. 1; Woods v. Rowan, 5 Johns. 42. But nil debet is. Minton v. Woodworth, 
 11 Johns. 474; BuUis v. Giddens, 8 Johns. 82. In Fisher o. Ellis, 6 Qreenl. 455, it was 
 held that in debt on bond taken pursuant to the statute in Maine relating to poor debtors, a 
 plea of performanqe of all the conditions expressed, or necessarily implied in the bond, was suffi- 
 ient. 
 
 (5) See James v. Walruth, 8 Johns. 410. 
 
 (6) Strange v. Holmes, 7 Cow. 224. But the plea in that case was non est factum and a 
 notice of the special matter. An assignment of debts and balances of account cannot be 
 pleaded as an accord and satisfaction to an action of debt on a bond, Bnddicum v.'Kirk, 3 
 Cranch, 293. An accord must be executed. Russell v. Lytle, 6 Wend. 390. A covenant not 
 to sue the obligor of a bond for a given time, cannot be pleaded at bar. Winans v. Huson, 6 ib. 
 471. Bat a covenant not to sue may be pleaded as a release. Chandler v. Herrick, 19 Jolus, 
 129. 
 
 (7) Updegraff V. Spring, 11 S. & R. 188; Grenell v. Sharp, 4 Whart 844. 
 
485 OF THE SEYERAL PLEAS. 
 
 J? "™*- In debt ov.scire facias on areeord, when the record was the foundation 
 leoords." ^^ *^® action, and not merely inducement, the plea of nil debet was al- 
 ways insufficient and bad on demurrer (/") (1). In debt on an Irish or 
 foreign judgment, it would seem that nil debet was sufficient, because such 
 judgments did not partake of the technical qualities of a record (g) (2). 
 A plea of payment, in an action upon a record, was not good at common 
 law, because such payment was matter in pais, and not of record ; but as 
 set-off on simple contract cannot be pleaded, it is best to apply by motion 
 (A). By the statute 4 Ann. c. 16, s. 12, the debtor might plead payment 
 to actions brought on record, but in order to come within that statute, he 
 must have paid all the money due on the record on judgment, so that the 
 whole of such judgment must have been satisfied ; and if it did not go to 
 that extent, a plea of actual payment would bo bad (i). Upon this act a 
 plea of accord and satisfaction is insufficient, as the act only authorizes a 
 plea of payment (A;) Nul iiel record wsis the proper plea, where there is 
 either no record, or where there was a variance in the statement of it(0 
 (3) ; but as this plea merely puts in issue the existence of the record as 
 stated, any matter in discharge must have been pleaded (4), such as pay- 
 ment, which was given by the 4 Ann. c. 16 (w) ; and accord and satis- 
 faction was not a sufficient plea to a bond conditioned for any other act 
 f *486 J ^^^^ t^6 payment of money (w). It is a maxim in law, that *there can 
 be no. averment in pleading against the validity of a record, though there 
 may be against its operation, therefore no matter of defence can be 
 pleaded which existed anterior to the recovery of the judgment (o) 
 
 (/) Jlnte, 481, 482; 2 Saund. 844; 1 Saund. {I) Com. Dig. Pleader, 2 W, 18, and Re- 
 
 21; 1 East, 872; 2 Wils. 10. cord, C; Stra. 1721; 1 Saund. 92, n. 8; 
 
 (g) See anU, 106; 4 B. &' C. 411; 6 D. & Gilb. Debt, 444; 2 Mod. 41. 
 
 R. 471, S. C. (m) SoZi)i( post diem is not pleadable against 
 
 (A) 6 Taunt. 176; 8 Bing. 292; 7 Bing. the Crown, 1 Price, 23. 
 
 29, 61. (n) 8 East, 251; 7 Id. 150. 
 
 (t) 4 Moore, 165. (o) Ante; 2 Marsh. 392. 
 
 (fc) Id. 
 
 (1 ) JVil debet is not a good plea to an action founded on a judgment of another state. Mills », 
 Duryee, 7 Cranch, 481; St. Albans v. Bush, 4 Vermont, 68; Curtis v. Gibbs, 1 Penn. 399; 
 Lanning v. Shute, 2 South. 788; Chiffe v. Yancey, Breese, 2; Clark v. Day, 2 Leigh, 172, 
 But see Hall v. Williams, 6 Pick. 247; Thurbur v. Bla<!kbourne, 1 N. Hamp. 242; Aldrich 
 V. Kenney, 4 Conn. 880; Starbuok v. Murray, 5 Wendell, 148; Shumway v. Stillman, 6 Wen- 
 dell, 447; McRea*. Mattoon, 13 Pick. 53. 
 
 •As the courts in most of the States admit of the inquiry, in reference to the judgments of sis- 
 ter states, whether the court rendering them had jurisdiction, it is difficult to understand how 
 this inquiry can' be made unless some plea is allowed under which it can properly be entered in- 
 to. See Warren v. Flagg, 2 Pick. (2d ed.) 448 note (1) and cases cited. In Starbuck ii. 
 Murray, 5 Wendell, 158, it was said, that '? so long as the question of jurisdiction is in issue, 
 the judgment of the court of another State is, in its effect, like a foreign judgment; it is prima 
 facie evidence." 
 
 JVil debet is a proper plea to an action of a judgment recovered before a justice of the peace of 
 another state; Warren v. Flagg, 2 Pick, 448; Silverlake Bank v. Harding, 5 Ohio, 346; Rob- 
 inson V. Prescott, 4 N. Hamp. 450; see Thomas v. Robinson, 8 Wendell, 267; Ez parte Wat- 
 kins, 3 Peters, 202; Sheldon v. Hopkins, 7 Wendell, 485; Cleveland v. Rogers, 6 ib. 488; Ma- 
 hurin v. Bickford, 6 N. Hamp. 568; Cole v. Driskell, 1 Blaokf. 16; Collins v. Modisett, lb. 
 60. 
 
 (2) Williams v. Preston, 8 J. J. Wash. 600. 
 
 (8) Vide Bullis v. Giddens, 8 Johns. 83. The plaintiff may treat snch a plea as a nullity, 
 but if he take issue upon it and go to trial, he cannot object to it on motion in arrest of judg- 
 ment; feushi;. Cobbett, 2 Johns. Cas. 256; Pelter v. Mulliner, 2 Johns. 181. How the plea 
 is decided upon in Maryland, Boteler v. The State, 8 Qill and Johns. 359. 
 
 (4) As to the proper plea in an action on the judgment of a court in another St»te, vjde Phil- 
 ipp's Ev. Dunlap'B ed, 254, n. (a).; Mills v. Duryee, 7 Qranch, 284, 
 
FIRST :— BEFORE THE RECENT RULES. 486 
 
 (1) ; and the original defendant himself, or his bail or sureti^, could not in debt. 
 plead that the judgment had been obtained against him by fraud (p) reiord?" 
 though it might be pleaded that a judgment against a third person was so ^^'^°^ °" 
 obtained Qq). The defendant might have pleaded a release (r), or that 
 the debt was levied by afi. fa. (s), or elegit (<), or ca. sa. (m). But 
 where to a declaration in scire facias on a judgment in replevin, dam- 
 ages £473 13s. id. the defendant pleaded, that before the suing out the 
 scire facias, the plaintiff sued out a feri facias, commanding the sheriff 
 to levy £274 13s. id. and which writ was delivered to the sheriff, who 
 before the return thereof seized and took to execution goods of the de- 
 fendant to the value of £37 13s,. : it was held that such plea was bad, as 
 it did not state that the sheriff had returned the writ (.■r) (A) An ex- 
 ecutor might plead plene administravil (y), or to debt on a judgment sug- 
 gesting a devastavit, he might plead not guilty (jz) ; and a discharge un- 
 der the lord's act was an effectual bar to an action of debt on a judgment, 
 (a). The pleadings in debt. or scire facias on a recognizance of bail, 
 have already been pointed out (6). 
 
 Indebt upon statute, nil debet was the proper plea (2), though not guil- 4tWy. On 
 ty would in some cases suffice (c) (3). The pleading rule, Hil. T. 4 W. ®**"^"^- 
 4, does not seem to prescribe the form of plea to debt on statute, but only 
 applies to debt on simple contract. In a recent case to a declaration qui 
 tarn, the plea was, *" that defendant never was indebted in the said sum 
 above demanded, or any part thereof, modo et forma, &c." and a learned 
 judge at chambers held it sufficient. The statute of limitations might, in 
 an action by a common informer, be given in evidence under the general 
 issue {d) ; but a former recovery by another person could not (e) (A). 
 
 In COVENANT there never was strictly speaking any plea of general "f 
 
 • COVENANT. 
 
 (ji) Moore v, Bowmaker, 6 Taunt. 879, 2 iance in the issue in tlie original action cannot 
 
 Marsh 392, S. C. be taken advantage of. Phillips o. Smith, 2 
 
 (g) Jd. Dowl. N. S. 688. 
 
 (r) Bac. A. B. Release. (y) 1 Lor4 Raym. 3; 4 Mod. 296; Salk. 
 
 (s) 4 Leon. 194; Sav. 122; Ore. Car 828; 296; Skin. 565; 3 East, 2. 
 
 Clift. 675. (z) 1 T. R. 462. 
 
 (0 Dyer, 299, b; 1 Lev. 92. (a) 32 Geo. 2, c. 28, s. 20. 
 
 (u) Off. Brev. 300; 1 Salk. 281; Lutw. (6) Tidd. 9th ed. 1128; ante, 111,112. 
 
 eil. . (c) 1 T. R. 462, Bao. Ab. Pleas, 1 ; Com. 
 
 (i) 4 Moore, 163. It seems also, that such Dig. Pleader, 1 S. 11, 17. 
 
 plea afforded no answer to the whole declara- (rf) 2 Saund. 63 b; 2 East, 336. 
 
 lion, as the sum levied was only sufficient to (e) 1 Stra. 701 ; Bac. Ab. Action, qui iam, 
 
 satisfy part of the judgment, and that it was D. 
 
 therefore bad on special demurrer, id. (A) It has been decided that the pleading 
 
 (A) A plea otnul liel record to a declara- rules of Hil. T. 4 W. 4, do not prevent par- 
 
 tion in scire facias on a judgment more than ties from pleading not guilty or nil debet, to 
 
 a year and a day old puts in issue only the re- actions on penal statutes, and these pleas are 
 
 covery of the judgment and therefore a var- therefore still proper, and put all the facts in 
 
 (1) ^Cardesa v. Humes, 5 Serg & Rawle, 65. The rule is the. same, whether the judgment, 
 were obtained by confession, or default, or upon plea; M'Farland v. Irwin, 8 Johns. 77. 
 
 A plaintiff in a judgment, who has taken a note as collateral security for the payment, cannot 
 recover on such notes, if he issues an execution and imprisons the defendant; Wakeman v. 
 Lyon, 9.Wend. 241; Sunderland v. Leber, 5 ib. 58. 
 
 (2) Vide Burnham v. Webster, 5 Mass. 270; Stilson v. Tobey, 2 Mass. 521, 522. 
 
 (3) See Stilson v. Tobey, 2 Mass. 252;. Burnham v. Webster, 5 ib. 266,270. 
 
*487 OP THE SEVERAL PLEAS. 
 
 1" issue, for tl^ plea of non est factum only put the deed in issue (1), as * in 
 oovENiNi. ^q|j|. qjj specialty (/), and not the breach of covenant or any other mat- 
 ter of defence ; and a plea of non iafreg-it convenlionem was bad on de- 
 murrer,, though it would be aided after verdict (^g') (2) and rtens in ar- 
 rere was also a bad plea in this action (A), because it impliedly admits 
 that although nothiug is now due, yet that the money was not paid on the 
 appointed day (A). The defendant must therefore always have pleaded 
 specially every matter which it would be necessary to plead in debt on a 
 bond or other specialty (i), as that the deed was avoidable by infancy (3) 
 or illegality of the consideration. However, under the plea of non est 
 factum, the defendant may, on the trial, avail himself of a variance in 
 the statement of the deed either in respect of a mis-statement, or of the 
 omission of a covenant, qualifying the contract {k) ; and this, although 
 the defendant has agreed to admit on the trial the due execution of the 
 deed (/) ; and if the plaintiff omit to state a condition precedent, the de- 
 fendant may crave oyer, and set out the deed and demur (m) (4). In an 
 action of covenant upon a lease for the breach of a covenant running 
 with the land, if the plaintiff claim as heir, devisee, or assignee of the 
 lessor, the defendant may traverse the derivative title of the plaintiff (w), 
 or admitting that the lessor had some legal estate in the premises at the 
 time of the demise, the defendant may plead that such lessor was seized, 
 &o. of a different estate from that stated in the declaration, and thereby 
 show that the derivative title of the plaintiff does not exist. But the de- 
 fendant is estopped from pleading or traversing generally, that the lessor 
 was seized as stated in the declaration (o) (5) ; though iij an action at 
 
 issue as before the rules. Jones v. Williams, (ft) Cowp. 588. 
 
 4 M. & W. 376; Earl Spencer v. Swaunel, 3 (i) Com. Dig. Pleader, 2 V. 4, &o. 
 
 M. & W. 154. To a declaration in debt on (k) 9 East, 18S; Stra. 1146; 11 East, 639; 
 
 Stat. 22 G. 2, o. 46, s. 14, charging the de- 4 Campb. 20; 2 Stark. 35, ante, 30S, 312, 
 
 fendant that he being deputy clerk of the peace , as to variances. 
 
 practised at the sessions as an attorney, a plea, (Z) 1 Camp. 70. 
 
 that the defendant was not at any of the times, (m) Com. Dig. Pleader, 2 V. 3, 4; 11 
 
 &o. deputy clerk of the peace, nor did he com- East, 630. 
 
 mit any of the supposed offences in manner (ra) Seymour v. Franco, Lavr Journal, vol. 
 
 and form, &c., was held bad for duplicity, the vii. Feb. 1829. K. B. p. 18; and Whitton v. 
 
 defendant should have pleaded not guilty. Peacock, in C. P. 3d June, 1835, ante, 364. 
 
 Faulkner t>. Cherill, 5 A. & E. 213. • (o) « T. R. 437; 2 Stra. 817; 2 Saund. 
 
 (/) .5«ie, 432; 1 Stark. 313. As to what 205, a. n. 207,418; 1 New. Rep. 160. Jfon 
 
 may be proved under this plea, see 5 Moore, ienuit is not pleadable to a cognizance for rent 
 
 164; 1 Stark. 294. in arrear, under a demise from a receiver in 
 
 (g) 8 T. R 278; 1 Lev. 183; 3 Id. 19; 1 Chancery, 6 Bing. 2. 
 Sid. 289; Com.. Dig. Pleader, 2 V. 5. 
 
 (1) Vide Kane v. Sanger, 14 Johns. 89; Cooper v. Watson, 10 Wend. 205; Gardner v. 
 Gardner, 10 Johns. 47; Dale v. Roosevelt, 9 Cowen, 307; Hebbard v. Delaplaine, 3 Hill, 187; 
 M'Neish v, Stewart, 7 Cowen, 474; Barney v. Keith, 6 Wendell, 555; Goulding v. Hewitt, 2 
 Hill, 644. Non est factum is, under the Statute of Ohio, a plea of the general issue in cove- 
 nant, to which a notice of set-off may be appended. Granger v. Granger, 6 Ham. 41. 
 
 (2) Roosevelt ». Fulton, 7 Cow. 71. The plea of non f/i/Veg'rt con»entioncm is not a gener- 
 al issue but must be pleaded in bar. Phelps v. Sanger, 1 Aik. 160. See Bender v. Fromber- 
 ger, 4 Dall. 486. 
 
 (3) Vide Marine Ins. Co. of Alexandria ». Hodgson, 6 Cranoh, 219. 
 
 (4) Snell V. Snell, 7 Dowl. & Ryl. 249. 
 
 (6) So where there was a demise by the plaintiff and his wife of the wife's estate, in which 
 the plaintiff had no interest, except in right of his wife and the reddendum and covenant to pay 
 rent, was to the plaintiff and his wife, and her heirs, it was held, that the defendant in cove- 
 nant by the husband for the rent, might plead, after praving oyer of the lease that the plaintiff 
 never had any estate in his premises, except in right of his wife, whose estate they were; that 
 
FIRST: BEFOEB THE RECENT RULES, 487a 
 
 COVENANT. 
 
 the suit of the assignee of the termor, the defendant may ^mj that the ra 
 lessor was possessed of the residue of the term in the manner alleged in ""'^^^ 
 the declaration (p), when a plea of performance in general terms suffices, 
 unless specially demurred to (9)(1). Where the defendant is a party to 
 a deed, he^^cannot traverse its operation by pleading that " he Aiinot 
 grant, &c." but must plead non estjactvm; but the rule is otherwise in 
 the case of a stranger to the deed (r). The defendant must also plead, 
 specially, performance of the covenant (s) ; or excuse of performance 
 as eviction (<) (2) ; or by non-performance (3) by the plaintiff of a con- 
 dition *precedent (m), or by surrender of the lease, &c. (d) : or admitting [ *488 ] 
 the breach to have been committed, the defendant must plead specially 
 that he is discharged {w) ; as by his bankruptcy, if the action be for 
 money demand due before the act of bankruptcy {x) : or by accord and 
 satisfaction after breach {y) ; arbitrament (2:), "former recovery (a) for- 
 eign attachment, set-off (b), release, &c. (c) (4). But a parol accord 
 and satisfaction made before breach cannot be pleaded in bar to an action 
 of covenant (^d), nor can a parol agreement for a substituted contract be 
 pleaded (e). A tender may be pleaded in covenant for the payment of 
 money (/). 
 
 (p) 4 Moore, 803; Carotid v. Blagrave, 1 676. 
 
 Brod. & B. 531. (u) 8 T. R. S66. 
 
 (9) Varley v. Manton,, 9 Bing. 363. (») 1 Saund. 235. 
 
 (r) Anie,4SS. (lo) Com. Dig Pleader, 2 V. 8. 
 
 («) Com. Dig. Pleader, 2 V. 13; Bui. N. (x) 4 T. R. 156; I Saund. 241, n. 6. 
 
 P. 165; 1 B. & P. 640. See Champ v. At- (y) 1 Taunt. 428; see 8 Id. 37. IM core 
 
 dery, 2 Marsh, 246; Rangier v. Morton, 4 60, S. C; Id. 358. 
 
 Watts, 465; Norris v. Ins. Co. of N. Amer- (z) 9 Co. Rep. 79; Com. Dig. Pleader, 2 
 
 ioa, 3 Yates, 84; Overton v. Crabb, 4 Hayw. V. 8, 9. 
 
 109; Stone v. Dennis, 3 Porter, 281; The (a) When should be pleaded as an es/qppeZ, 
 
 plea of " conditions performed" admits all the 2 B. & Aid. 668; ante, 478, n. (c). 
 
 facts that are well alleged, and assumes the (i) See the end of this chapter, 
 
 proof of performance. Harrison v. Park, 1 (c) Com. Dig. Pleader, 2 V. 8, &c.; ante, 
 
 J. J. Marsh. 172. See Neave v. Jenkins, 2 478. 
 
 Ycates, 207; Roth v. Miller, 15 Serg. & R. (rf) 1 Taunt. 428. 
 
 105; Barnett v. Cratcher, 8 Bibb, 202; Mars- (e) 1 East, 630; 3 T. R. 596. 
 
 tent). Hobbs,2Mass. 438. Bryant «. Simp- (/) 7 Taunt. 486; 1 Moore, 200, S. C; 5 
 
 son, 3 Stew. 339; Pollard d. Taylor, 2 Bibb, Mod. 18; 1 Ld. Raym. 566; 12 Mod. 376. 
 
 234. But see Gilb. 0. P. 63. 
 
 (0 1, Saund. 204,n. 2; 2 Id. 176; 2 East, 
 
 she died without issue, leaving an heir, whereupon the estate of the plaintiff ceased ; and that 
 the heir threatened to enter and eject the defendant, unless he attorned ; and the defendant was 
 thereby compelled to attorn, and become tenant to the heir. Hill v. Saunders, 7 Dowl. & Ryl. 
 17. Where the plaintiff assigns a particular breach, a general plea of performance, in the words 
 of the covenant is bad on general demurrer, as where the covenant was to convey a farm, and 
 the plaintiff assigns for breach, that before executing the conveyance, the defendant removed 
 from the premises a cider-mill which was annexed to the freehold, the defendant must answer 
 particularly the breach assigned. Bradley v. Usterhoudt, 13 Johns. 404. 
 
 (1) Doogan v. Tyson, 6 Gill & Johns. 453. 
 
 (2) Eviction of the whole or any part of the demised premises, is a good plea in bar to an ac- 
 tion, either of debt or covenant, for rent. Pendleton v. Dyett, 4 Cow. 581 ; 15 Pick. 147. To 
 an action brought by a master on the covenants of an indenture of apprenticeship, alleging as a 
 breach, that the apprentice had left his service within the stipulated time, it was held to be a 
 good defence that the plaintiff had neglected to instruct the apprentice in his trade and had, un- 
 necessarily obliged him to work on Sunday. Warner v. Smith, 8 Conn. 14. 
 
 (8) Paiker V. Parmele, 20 Johns. 180. But a defendant cannot plead that the plaintiff in- 
 iended to violate a covenant, as an excuse for his own violation of it. Coffin v. Bassett, 2 Pick. 
 857. 
 
 (4) Johnson v. Kirr, 1 Serg. & Kawle, 2S. 
 
 \ 
 
488 
 
 OP THE SEVERAL PLEAS, 
 
 IN 
 
 AOOOCNT. 
 
 IN 
 SEIINVE. 
 
 [•489 ] 
 
 BY OR 
 
 A0AIN3T 
 
 GXECUT0I13, 
 
 &0. 
 
 In an actios, of account, there is no general issue (A). The defendant 
 may plead infancy (g-),; and when sued as bailiff or receiver in fact, he 
 may plead that he was not bailiff or receiver (A) ; but when sued as ten- 
 ant in common under the statute (i), if the declaration be properly 
 framed, a plea that the defendant is not bailiff or receiver would be insuffi- 
 cient {k) ; and if the defendant mean to deny the plaintiff's claim, he 
 should traverse the tenancy in common. The defendant may also plead 
 that he hath accounted, or a release, arbitrament, bond given in satisfac- 
 tion, and the statute of limitations (Z) ; but other matters, which admit 
 that the defendant was once chargeable and accountable, cannot in general 
 be pleaded in bar to the action, but must be pleaded before the auditors 
 {m). 
 
 In DETINUE the general issue (although improperly so called) was non 
 delinet, which, before the recent rules, put in issue the facts of the plain- 
 tiff's property or possession, and the defendant's witholding the chattels ; 
 but under this plea the defendant could not show that the goods or 
 other chattels were pledged to him, but must have pleaded that defence 
 specially, he might, however, give in evidence a gift from the plaintiff, or 
 any other fact, to prove that the property in the chattel was not in the 
 plaintiff (n). A lien must always have been pleaded specially (o). The 
 bailment or finding alleged in a declaration in detinue is not traversable. 
 
 *In each of these actions, when brought by an executor or administra- 
 tor, the defendant might not only avail himself of either of the before-men- 
 tioned defences, but might also in some cases deny the plaintiff's represen- 
 tative character (1). Where letters of administration had been obtained 
 in an inferior diocese, .the defendant may plead in bar that there were 
 bona notabilia (jp). Th*e general plea, " that the plaintiff was not nor is 
 administrator of all the goods, <fec. " is not sufficient, where the defence 
 is, that the letters of administration, which were granted by. a bishop, 
 were unfounded, because the intestate resided within another diocese in 
 a, different province, where there were bona notabilia (9). The residency 
 elsewhere, &c. should be specially pleaded. So if the defendant, in an ac- 
 tion by an executor, contend that the probate is void, as that the stamp is 
 insufficient, or the seal forged', he should plead we Mwg'Mes executor (r) (2). 
 Where the plaintiff necessarily sues in his representative character, the 
 defendant cannot, under the general issue, take advantage of any defect. 
 
 (A) The rules of Hil. T. 4W. 4, do not no- 
 tice the form of action. 
 
 (g) Bac. Ab. Accompt, B.; Com. Dig. Ac- 
 oompt, E. 5. 
 
 (ft) Id. 
 
 (j) 4 & 5 Ann. c. 16, s. 27. 
 
 (fc) Willes, 208. 
 
 (/) Bac. Ab. Accompt, E.; Com. Dig. Ac- 
 compt, E. 4 to 6. 
 
 (m) Id.; 8 Wils. 78. 
 
 (n) Co. Lit. 283 a; 4 Bing. Ill, 112. 
 See the several pleas. Com. Dig. Pleader, 2 
 X 3. 
 
 (0) 4 Bing. 106, 111, 112; 1 Gale, 127; 
 ante, 124. 
 
 (p) 1 Saund. 274, note 8. As to plead- 
 ing specially in actions for rent, see Salk. 
 817. 
 
 (3) 5 B. & C. 491; 8 D. & R. 247, S. C. 
 
 (r) 1 Saund. 275 a, notes. 
 
 (1) But unless the plaintiff's right to sue as executor or administrator be put in issue by the 
 defendant's plea, it will be deemed to have been admitted.— M'Kimm v. Riddle, 2 Dall. 100. 
 Champlin v. Tilly, 8 Day, 803. . ; , ■ u 
 
 (■2) In Jewett v. Jevpett, 6 Mass. 275, although it vras decided that it was a good plea in bar, 
 ■by the law of Massachusetts, for an administrator, that he had been remov«d from ofBoe since 
 the commencement of the suit against him, yet it was admitted, that by the common law, a de- 
 termination of his power pending the action did not defeat it. 
 
fiest: before tse recent roles. 489 
 
 EXEODtoSS, 
 
 such as the insufficiency of the stamp in the letters of d,dmiaistratiott ** o^ 
 or probate, for profert has been made of them, and the defendant has by bxmdt?* 
 his pleading admitted them (s). But if it were part of the plaintiff's ease &o. 
 to prove his representative character, as where he sued in trover upon his 
 constructive possession, for a conversion in his own time, any defect in the 
 letters of administration or probate, which' prevented him from proving 
 such character, would, before the recent rule Hil. T. 4 W. 4, be fatal, 
 although there were no special plea (<). 
 
 In an action against an executor or administrator (m), the defendant 
 may, in addition to any of the before-mentioned defences, plead «p ungues 
 executor (a;), or administrator (j/), or that no assets have come to his 
 hands (z) (1) : or plene administravit prater a sum not sufficient to sat- 
 isfy debts of a higher nature, as bonds outstanding, or judgments recover- 
 ed against the deceased or tho defendant by third person (a) ; or plene 
 administravit except a sum ready to be paid to the plaintiff (A) ; and the 
 defendant cannot avail himself of either of these defences under the gene- 
 ral issue (c) ; but under the general plea, of plene administravit, an execu- 
 tor or administrator may give in evidence a retainer for a debt due to him- 
 self, though it is in general advisable *to plead it {d} Where the execu- [ *490 ] 
 tor or administrator has no ground on which to dispute the plaintiff's debt, 
 it is in general advisable not to deny it (e). So if he cannot dispute hi^ 
 being executor he should not plead ne ungues executor, for if he do, and 
 the plaintiff, on the plea of plene administravit, take judgment of assets 
 quando, and proceed to trial on the other issue, and they are found iot 
 the plaintiff, and no issue which goes to the whole cause of action is found 
 for the' defendant, the defendant will be liable to costs (/) (2) ; but not 
 so if the plaintiff do not take judgment of assets quando, and on the trial 
 the plea of plene administravit is found for the defendant (g-). 
 
 In an action against an heir or devisee (Ji), the defendant may not only ~'^^^^^ 
 plead any matter which might have been pleaded by the ancestors or devi- bivisEs. 
 sor, but may also either deny the character in which he is sued ; or admits 
 
 (s) 2 M. & Sel. 653. (o) 1 Saund. 300 to 386, in riotis; CoiAi 
 
 (t) 3 Taunt. 112; 1 Saund. 275, n. (a); 2 Dig. Pleader, 2 D. 9; 10 East; 313, 315: 
 Id. 47, n. (x). («) Post, vol. iii. 
 
 (u) See the pleadings in general, Com. Dig. (c) Co. Lit. 283 a. 
 Pleader, 2 D. 3. (rf) Co. Lit. 283 a; 1 Saufld. 333, note 6. 
 
 (j:) Com. Dig. Pleader, 2 D. 7. Executor (e) 5 Bla. Hep. 1275, See Post, when ad- 
 
 not liable till he has proved or acted, 1 M. & visable to plead the general issue, or not; 
 P. 663; 4 Bing. 686, S. C. (/) 12 East, 232. In such case defendant 
 
 (y) Com. Dig. Pleader, 2 D. 7, 13; see 7 S. should move to withdraw the pleas of the gen- 
 
 & C. 406. eral issue, and ne unques executoi'; but see 1 
 
 (z) Com. Dig. Pleader, 2 D. 7. Although Bar. & Aid. 254; and 8 Taunt. 129; oveWul- 
 
 upon an issue of plene administraeit vel non, ing 1 Saund. 336 b. 
 
 the stamp on the probate of testator's will is (g) 4 Taunt. 135; 1 B. & Aid. 254; STaunt. 
 
 admissible in evidence, yet it is not even pri- 129; Tidd, 9th ed. 979; 980i 
 ma facie evidence of assets come to the hands (ji) See the proceedings in getietal, Com. 
 
 of the executor, Mann v. Lang, 5 Nev. &Maji. Dig. Pleader, 2 E.; 2 Saund. 7; and notes: 
 202. 
 
 (1) Shaw V. M'Cameron, 11 Serg. & Kawle, 252. Vide Douglas v. Satterlee, 11 Johns 
 16. 
 
 (2) In debt or assumpsit against an executor, the plea of non est factum or non assumpsit is 
 admission of a will of which the defendant is executor; but it is otherwise Where the iiction is 
 for a demand on which the testator was not himself littble; as tot k legacy, Hantz Vi Seal^, 8 
 Binn. 405. 
 
 Vol. I. 65 
 
490 
 
 OF THE SEVERAL PLEAS- 
 
 A^ntlfoE 1^ It' ™ay plead that he has noihing by descent or by devise, either gene- 
 DBvisEE. '"^^^y («")> or specially, viz. that he has nothing but a reversion after an es- 
 tate for life or years, or that he has paid debts of an equal or superior 
 degree, to the amount of the assets descended or devised ; or that he re- 
 tains the assets to satisfy his own debt, of equal or superior degree, or debts 
 of a superior degree due to third persons {k) (1). The heir if an infant, 
 might also have prayed that the parol should demur, or be stayed till he 
 had become of full age (J) ; but that delay, so injurious to creditors, was 
 abolished by 1 W. 4, c. 47, c 10. It was a good plea by a devisee, that 
 the debt 'did not accrue in the life- time of the devisor (w). 
 
 IN oASB. The general issue in an action on the case, is " that the defendant is 
 not guilty of the premises {or, 'grievances,') above laid to his charge in 
 manner and form as the plaintiff hath above thereof complained against 
 him, and of this he puts himself upon the country, &c." In trespass it is 
 similar, except that the word '■'force'' is substituted for " wrong" in the 
 commencement and " trespasses "for '^premises" or '■.'grievances." 
 
 [ *491 J ^ It was observed by Lord Mansfield (w), that " there is an essential* 
 difference in pleading between actions of trespass, and .actions on the 
 case ; the former are actions stricti juris, and therefore a former recov- 
 ery, release, or satisfaction, cannot be given in evidence, but must be 
 pleaded ; but an action on the case is founded upon the mere justice and 
 conscience of the plaintiff's case, and in the nature of a bill of equity, and 
 in effect is so (o) ; and therefore a former recovery (jp), release, or ac- 
 cord and satisfaction (9), need not, before the late rules, be pleaded, but 
 might have been given in evidence (2) ; for whatever would in equity 
 and conscience, according to the existing qircumstances, preclude the 
 plaintiff from recovering, might, in an action on the case, be given in evi- 
 dence by the defendant, under the general issue, because the plaintiffs 
 must recover upon the justice and conscience of his case, and on that 
 only." And in an action on the case, under the plea of not guilty, the 
 defendant might not only put the plaintiff upon proof of the whole charge 
 contained in the declaration, or show the before-mentioned matters which 
 operated in discharge of the cause of action, but might give in evidence 
 any justification or excuse (r). Thus, in an action for a malicious in- 
 dictment, or arrest in a civil action, the defendant might, under the gen- 
 eral issue, show that there was a sufScient or probable cause for the pre- 
 ceding complaint of (s) ; and this had, before the rules, become usual, 
 
 (i) Id.; Com. Dig. Pleader, 2 E. 3. 
 
 (fr) Com. Dig. Pleader, 2 E. 3. 
 
 (0 Id.; ante,i.i1. 
 
 (m) 5 Nev. & Man. 42. 
 
 (n) 3 Burr. 1353; 1 Bla. Rep. 388, S. C; 
 1 Wils. 45; 2 Saund. 155 a, n. 4. No doubt 
 the distinction stated by Lord Mansfield was 
 for a time laid down and prevailed, but with- 
 out any just reason. There was in assumpsit, 
 and debt on a simple contract, the same re- 
 laxation and departure from the principle of 
 pleading; the matter which admita the facts 
 stated in the declaration, and avoids it, should 
 
 be specially pleaded, see post. 
 
 (o) This relaxed description of the action 
 upon the case would not be tenable at the pres- 
 ent day. 
 
 (.p) Sed vide 2 B. & A. 668; see ante,i18, 
 and id. note (b). It should be specially plead- 
 ed, id. 
 
 (}) 1 Stark. E. 97. 
 
 (r) 3 Burr. 1353; 1 Bla. B«p. 388, S. C; 1 
 Stark. 97; 1 Wils. 45; 2 Saund. 165 a, note 
 4; 2 Mod. 276; 3 Id. 166; Com. Eep. 273; 1 
 Wils. 44, 175; 2 Saund. 155 a. 
 
 (t) 3 Mod. 166; Cro. Eliz, 871, 900. 
 
 (1) Or he may plead in abatement the nonjoinder of the heirs of a deceased heir ha-ving lands 
 by descent. St. Mary's Church v. Wallace, 5 Halst. 311. 
 
 (2) Vide Jones v. Soriven, 8 Johns. 458. 
 
FIRST: — BEFORE THE RECENT RULES. 491 
 
 though more anciontly a special plea was preferred (t). So in case for m case. 
 obstructing ancient lights, a custom of London to build on an ancient 
 foundation to any height, might have been givea in evidence by the de- 
 fendant (m) ; and though a license must have been pleaded in trespass, 
 yet it was the practice, to admit it in evidence in an actioa on the case 
 
 With respecl; to actions for a libel, or slanderous words, we will con-' slandbb. 
 sider, 1st, When it was sufficient to plead the general issue ; 2dly, When f^ff ^s^fo 
 there must have been a special plea of justification, and how it should be slander in 
 framed. ■ particular 
 
 1st. Consistently with the relaxation which had obtained in other ac- ''^^'re the 
 tions on the case, the defendant might upon the general issue defend him- rules', 
 self, if there had been a release, or accord and satisfaction (y) . And it 
 was clear that if he denied or disapproved any of the *material facts [ *4;92 ] 
 which essentially constituted the gist or cause of action, the general issue 
 would suffice ; as if he disputed the publication of the scandal, or that it 
 concerned the plaintiff, or did not bear the meaning which was affixed to 
 it in the declaration, and which the plaintiff had bound himself to estab- 
 lish, so that there was a fatal variance ; or, the words not being action- 
 able without the aid of special damage, that no such injury had occurred, 
 &c. (z). -So where the defence was, that the libel or slander was pub- 
 lished or spoken, not in the malicious sense imputed in the declaration, 
 but in an innocent sense, or upon an occasion which warranted the publi- 
 cation, the same might have been given in evidence under the general issue, 
 because it proved that the defendant was not guilty of the malicious slan- 
 der as charged in the declaration ; as if the words were spoken by the de- 
 fendant as counsel, and were pertinent to the matter in question {a) (1) ; 
 or were written or spoken in confidence, and without malice, as when a 
 master honestly and fairly had given the character of a servant to one 
 who asked his character with a view to hire him (6) (2) ; or if the 
 words were innocently read, as a story out of history (c) ; or were spo-: 
 ken through concern (d) ; or in a sense not defamatory (e) ; for by so 
 
 (0 1 Rol. R. 438; Cro. Eliz; 871, 900. But P. 621; 1 B. & Aid. 233. 
 now see 2 Bing. N. C. 114. (i) Bui. N. P. 8; 1 T. R. 110; 1 B. & P. 
 
 («) 1 Com. Rep. 273; 1 Wils. 45, 175; 2 523; 8 B. & C. 584; 8 M. & R. 101, S. C. 
 
 Mod. 274. See as to such customs, 3 Car. & Miter if earprcss malice, &o. inthe master, trf.; 
 
 P. 615. 3 B. & P. 587. 
 
 (i) 8 East, 308; 2 Mod. 6, 7. (c) Cro. Jao. 91. 
 
 (y) Ante; 1 Stark. Rep. 97. (d) 1 Lev. 82. 
 
 (z) See post, as to the qualities of pleas, 1 (e) 4 Rep. 12 b; Peake B. 4; 1 Campb. 48; 
 
 Stark. Slander, 2d edit. 454, 464, 465. 7 Taunt. 431; 4 Price, 46, S. 0. 
 
 (a) Cro. Jao. 90; Poph. 96; see Holt, C.N. 
 
 (1) 15 Mass. 50. But it is a libel in England, to publish a correct speech of counsel in a 
 case, though the facts of the case and the law as applicable to them, may be published. Flint 
 V. Pike, 6 Dowl. & Ryl. 528. And it is no justification to an action for a libel in a newspaper, 
 that the matter complained of is a true, fair, just, and correct acoouat of proceedings which 
 took place at public police office in the course of a preliminary inquiry, openly and publicly 
 conducted before a justice, upon a, criminal charge against the plaintiff, although published 
 with no scandalous, defamatory, unworthy or unlawful motive, but merely as public news. 
 Buncan v. Thwaites, 5 Dowl. & Ryl. 447. See however, as to the right to publish a correct 
 account of judicial proceedings. Commonwealth v. Blanding, 8 Pick. 304; Clark v. Binney, 2 
 Pick. 117. In an action of slander, for charging the plaintiff with perjury in a judicial pro- 
 ceeding, the defendant on a plea of not guilty (though not permitted to prove the/a2;% of the 
 words spoken by the plaintiff) may prove what those words were, in mitigation of damages. 
 Grant v. Hover, 6 Munf. 13. 
 
 (2) 8 Pick. 315, Per Pabker, 0. J, 
 
402 
 
 OP THE SEVEEAL PLEAS. 
 
 IN CASE, showing the manner ^nd oceasion of speaking the words, the defendant 
 fo/sknder P'^?^®*^. ^^at they were not spoken with malice. But in most of the fore- 
 in particu- goi^g instances, the defendant might have pleaded those matters specially 
 '*'• (/)_) for a defendant should never be compelled to rely alone on the gene- 
 
 ral issue when he confessed the words, and justified them, or confessed the 
 words, and by special matter showed that they were not accountable {g) ; 
 but recently, before Reg. Gen. Hil. T. 4, W. 4, it had become more usual 
 to give them in evidence under the general issue (K). 
 
 So, under the general issue, the defendant might, in an action for a libel 
 upon the plaintiff in his business of a bookseller, accusing him of publish- 
 ing immoral works, adduce evidence to show that the supposed libel was 
 a fair stricture upon the general run of the plaintiff's publications (i). And 
 [ *493 ] it was not necessary \a plead specially that the 'defendant acted and spoke 
 in his character of a judge, or juror, or a party, or witness, in a judicial 
 proceeding, in uttering the supposed slander ; or that the publication 
 was procured by the contrivance of the plaintiff with a view to an action 
 (A), and it has been held, in an action on a libel in a hand-bill, offering a 
 reward for the recovery of certain bills, and stating that the plaintiff was 
 suspected of having embezzled them, that the defendant may show under 
 the general issue that the hand-bill was published bona fide with a view 
 to the protection of persons liable on the bills, or to the conviction of the 
 offender (/). 
 
 It appears to be a doubtful question, whether in an action for a libel or 
 slander, the defendant could be admitted to prove in mitigation of dama- 
 ges, facts showing grounds of suspicion, short of actual proof of the plain- 
 tiff's guilt ; or that he was a person of general bad character; or that there 
 was a general rumor that he committed the act with which he was charged. 
 There are some decisions and dicta that such evidence might be received 
 to reduce the damages, on the ground that it was material in estimating 
 the extent of injury the plaintiff had received (m). But that doctrine, at 
 least as regarded the admissibility of evidence of the plaintiff's general bad 
 character and repute, was denied in the case of Jones v. Stephens, in the 
 Court of Exchequer (re) ; which was an action for a libel on the plaintiff 
 in his character of an attorney, and containing general reflections on his 
 
 (/) But Mr. Starkie observes, " that in all lordship said, " the defence here is, not that 
 
 cases where the circumstances and occasion of the charge was true, but that the defendant 
 
 the speaking the words or publishing the libel acted bona fide in making it." 
 do not afford an absolvie bar to the action, (m) See Peake, Ev. App. xcu. 8d ed. App. 
 
 without regard to the defendant's motives and xoiv. 4th ed. 328; 2 Camp. 251; 1 M. & 8el. 
 
 intention, but werely throw it on the plaintiff 284, 286 , n. ; Holt, N. P. B. 299 307 ; Phil, 
 
 to prove malice in fact, the defendant cannot Ev. 7tb edit. See 1 M. & M. 47, cited post, 
 
 plead such occasional circumstances specially, 632. This was considered vcxala questio, in 6 
 
 but 7;i««t plead the general issue." Stark. Bing. 223, 224. The subject is well discussed 
 
 on Sland. 2d edit. 457; see 4 B. & Aid. 605. in 2 Staii. on Slander 2d ed. 87, &o. In 
 
 According to this it could not be specially Waitham«. Weaver, 1 Dow. & Ry-N- P. B. 
 
 pleaded th« the defendant uttered the words 10, (8. C. in 11 Price, 257, but differently 
 
 m giving the plaintiff, his servant, a character, stated) it seems, a distinction was taken be- 
 
 ^g° ^ F > j^ggj^ pj,ugf gf ^^gjj showing smpmon and 
 
 (g) 4 Eep 14 n P™°^ °^ rumors, viz. that at all events facts 
 
 (ft) 1 Saund. 130, note 1 and notes, 5th cannot be proved under the general issue in 
 
 gijjj. ' mitigation of damages. The plaintiff is not 
 
 (h 1 Camnb 850 permitted upon the general issue to prove the 
 
 (k) 1 Stark.' Slander, 2d edit. 456, 460; 2 truth of the libel, 2 Stark. B. 93; 2 Selw. N. 
 
 New Bep. 141; 5 Esp. B. 18; 8 Campb. 828. 3?. 1197. 
 
 By an M. P. 1 M. & Set. 273. («) H P™e, 285. 
 
 (0 1 M. & M. 461 , coram Tindal, C. J, His 
 
PIBST: BBPOBE THE RECENT RULES. 493 
 
 professional conduct and respectability ; the defendant pleaded the general » oasb- 
 issue, and several pleas of justification, some of which alleged in very for^i^'der 
 general terms, that the plaintiff had conducted himself in an unprofession- in%Mtiou- 
 al and disreputable manner ; on the trial the defendant proposed to prove l»r- 
 by witnesses, in support of pleas of justification, and in contradiction of the 
 general averment in the declaration that the plaintiff had carried on the 
 . profession and business of an attorney with great credit and reputatioii, 
 that the plaintiff was of general bad character and repute in his business of 
 an attorney, but the evidence was rejected by the Chief Baron as inadmis- 
 sible : and on motion afterwards for a new trial, the Court of Exchequer 
 was of opinion, and *held, with many forcible observations, that such evi- [ *494 ] 
 dence was not admissible, either in mitigation of damages, or in support 
 of any of the allegations contained in the pleas of justification. But in a 
 subsequent case it was held, that if ajustification had been pleaded, though 
 the evidence might fall short of satisfying the jury that the strict legal of- 
 fence was committed by the plaintiff, yet they may take the facts into their 
 consideration in estimating the damages (o). It is matter of prudence, 
 depending on the facts of each case, whether or not to plead a justification. 
 If the evidence will either establish the plaintiff's guilt, or at least establish 
 his culpable conduct, it seems in general advisable to plead a justification as 
 generally as may be admissible. 
 
 In Saunders v. Mills (p), the Court of Common Pleas held that the de- when and 
 fendant, in mitigation of damages, might show that he copied a .libellous^""*" 
 report of an action from another newspaper into his own, and so was notgp^'i^v. 
 the inventor of the slander, and consequently had less of malice against the 
 plaintiff ; but that he could not prove that it had appeared concurrently in 
 several other newspapers. 
 
 2dly. When the defendant must specially justify the libel or slander, 
 and how the plea should be framed. It is now well settled, that in an ac- 
 tion for a libel or slanderous words the defendant cannot under the general 
 issue, give in evidence the truth of the matter, or any part of it, even in 
 mitigation of damages; but mws^ justify specially (1), stating the parties 
 ular facts which evince the truth of the imputation (9) ; and the rule 
 holds whether the imputation upon the plaintiff's character be of a general 
 or specific nature (r). But in an action for words not actionable in them- 
 selves, it was held, that evidence of their truth might be given in evidence 
 under theg-emeraZ issue (s). In framing a plea of justification of the truth, 
 care must be taken to observe the following rules : 1st, It is necessary, 
 although the libel contain a general imputation upon the plaintiff's charac 
 ter, that the plea should state specific fads, showing in what particular iu- 
 
 (0) Chalmers v. Shackle and others, 6 Car. prove other words not stated in his declaration 
 
 &,.S. 475. to show malice, &c. (see ante, 406).the defend- 
 
 (p) 6 Biag. 213. . ant may, under the general issue, prove the 
 
 (g) See Stra. J200; Willes, 20, 24; 1 truth of sucA words, 2 Stark. Rep. 456. The 
 
 Saund. 180, n. 1, 248, c. n- 1; 11 Price, defendant cannot be allowed to prove that the 
 
 235; Selw. N. P. Slander, IV. Libel, II.; plaintiff libelled him, 'i B. &, C. US; i D. & 
 
 8 C. & P. 512; 1 Stark. Slander, 2d ed. B. 670, S.C; 1 R. & M. 422. 
 465. (s) 1 M. & M. 1. 
 
 (r) Id.; Willes, 24. But if the plaintiff 
 
 (1) Vide Sheppard •/. Merrill, 13 Johns. 475. 
 
*495 
 
 OP THE SEVERAL PLEAS. 
 
 Inactions ^*^"''^^' ^^^ ^^ ^^^t e^act manner he has misconducted himself (<) ; 2dly. 
 for slander The matters set up by way of justification should be strictly comflirmable 
 in partiou- with the slandcr laid in the declaration, and must be proved as laid at 
 lar. least in substance (m) ; and, 3dly, if the matter of justification can be ex- 
 
 tended <to *the whole of the libel or slander, the plea shojild not be con- 
 fined to part only, leaving the rest unjustified (z;). 
 
 It is now decided, that in an action for a libel, it is not a good plea 
 that the libellous matter was communicated to the defendant by a third 
 person, whose name the defendant disclosed when he published the state- 
 ment {x) (1). And it is extremely probable that the same general doc- 
 trine would be applied to oral slanders (p). At all events, this defence, 
 if any, should be specially pleaded (z) And it would be necessary to 
 state in thp plea, in hcec verba, the very words used by the author (a) ; 
 and to give a cause of action against the latter, by showing that he spoke 
 thejwords'lfalselytjand maliciously ; and also to allege that the defendant 
 believed what he "heard, and repeated the words on a justifiable occasion 
 (6). 
 
 It appears to be doubtful whether, if the defendant reply upon the de- 
 fence that the publication was no more than a true and correct report or 
 account of z, judicial proceeding; (2), he otms< plead the matter specially 
 (c). That he may plead this matter cannot be doubted, and it is usual 
 and better to adopt that course. It has been decided that in an action 
 for a libel, purporting to be a report of a coroner's inquest, evidence of 
 the correctness of the report is admissible under the general issue in mit- 
 igation of damages {d) ; but that no evidence of the truth or falsehood of 
 the facts stated at the inquest is admissible on either side (e). 
 
 Where in an action for a libel, which purported to be a report of a tri- 
 al, the defendant pleaded that the supposed libel was in substance a true^ 
 
 9 
 
 {/) This rule is considered and illustrated by R. 695, S. C. ; as to requisites of such a 
 
 examples in considering certainty as one of the plea, 
 qualities of a plea of justification. (c) 1 B, & P. 525, 1 Stark. Slander, 2d ed. 
 
 (u) Cro. Jac. 676, 578; Cro. Eliz. 623; 13 468 to 473; see a7ite, 491, 492. 
 East, 554; 2 B. & C. 678; 4 D. & 11. 230, S. (d) See ante, 493. As -to its being no. 
 
 C; 1 Stark. Slander, 2d ed. 480. defence that the publication was a correct 
 
 (») See an instance, 1 Stark. Slander, 2d report of a preliminary inquiry, see 1 B. & 
 
 ed. 484; Mountney ». Watton, 2 B. & Adol. Aid. 379; 3 B. & C. 556; 5 D. & R. 447, 
 
 673. S. C. 
 
 (x) De Crespigney v. Wellesley, 2 M. & P. («) 2 C. & P. 470; 1 M. & M. 46; S. C. 
 
 695; 5 Bing. 392; 3 Bar. & Cres. 24; 4 D. & cor. Tenterden, C. J. His Lordship is reported 
 
 R. 695, S. C. in 1 M. & M. Reports, to have said, that proof 
 
 {y) See id.; 10 B. & C. 263. of the correctness of the report being short of 
 
 (z) See 7 T. R. 17; 2 Bast, 326; 5 Id. 463; a jurisdiction, was, upon the general prinoi- 
 
 Holt, N. P. R. 533; 1 Stark. Slander, 2d ed. pie, admissible, as governing the damages; but 
 
 473. that he should express no opinion whether, if 
 
 (a) 2 East, 426. pleaded, there would have been a defence. See 
 
 (*) M'Pherson v. Daniels, 10 B. & C.'263; anle, 493, note (m). 
 and see farther 3 Bar. & Cres. 24; 4 D. & 
 
 (1) See Jackson v. Stetson, 15 Mass. 48. It has been held that such plea was not admis- 
 sible in an action for a libel. Dole v. Lyon, 10 Johns. 446, where the cases of Davis 
 V. Lewis, and Maitland v. Goldney, were considered, and the application of the rule to written 
 slander was denied, and Kent, C. J. observes, that it may be well questioned whether even this 
 rule as to slanderous words ought not to depend upon the quo animo with which the words, 
 with the name of the author, are repeated. _ In the case of The Earl of Leicester v. 
 Walter, 2 Carapb. 251, which was an action for a libel, Sir James Mansfield, C. J., 
 allowed general suspicion and report to be given in evidence under the general issne. 
 See also Kennedy v. Gregory, Morris v. Duane, 1 Binn. 86; Coleman v. Southwick, 9 Johns. 
 46. 
 
 (2) See ante, page 492, and note. 
 
piest: before the recent rules. . 495a 
 
 account and report of the trial, it was held, upon demurrer, that the plea m case. 
 was bad ; for it should have shown the facts, so that it might appear on for^lander 
 record whether the report were true in substance, and should not have inVarticu- 
 stated the mere inference or conclusion which the defendant drew from lar- 
 that which transpired at the trial (/). Upon the same ground the follow- 
 ing case was decided :— A libel purporting to be a speech of counsel at 
 the trial of the plaintiff on a criminal charge ; and it is stated, after set- 
 ting out the speech, that a witness *was called who proved all that had^[ "496 ] 
 been stated by counsel, and that the defendant was immediately after that 
 acquitted upon a defect in proving some matter of form. The plea stated 
 that in fact such speech was made, and that the witness called proved all 
 that had been so stated; but it did not set out the evidence, or justify the 
 truth of the charges made in the counsel's speech ; and the Court held 
 that the plea was therefore insufficient (g-) . Where part of a publication 
 consists of a report of judicial proceedings, and the rest of comment, since 
 the separation and discrimination of each part necessary for the purpose 
 of defence, the defendant ought to take upon himself the burthen of mak- 
 ing it, in order that the Court may see what part he means to justify ; and 
 the plea will be defective if it do not specifically point out the exact parts 
 which it is intended to justify as being a correct report (Ji). 
 
 To a declaration for a libel, described as contained in the report in a 
 newspaper of a magisterial inquiry, a plea that the several "matters and 
 things in the supposed libels contained were true, it is bad ; because 
 it is uncertain whether it means that the report in the newspaper was a 
 true report of the proceedings, or that the facts mentioned in it were true ; 
 and if the latter were the meaning, then the plea is much too general (i). 
 
 And a plea alleging that the supposed libel is justifiable, because it is a 
 true report of a trial, &c. is defective, if, in setting out, as is necessary, 
 #the evidence, &c. which was given, it appear therefrom that the account, 
 or report is not warranted by such evidence, or that the libel contains un- 
 justifiable comments and observations by the writer (k). It is, however, 
 in general sufficient that the report of the former proceedings was in sub- 
 stance correct and faithful ; and although the plea should show the facts 
 and detail the evidence, &c. it need not contain every word uttered at the 
 trial. (0- 
 
 Consistently witli the elementary principle of pleading, that pleas of jus- 
 tification, or in avoidance, must confess the fact to which they are applied, 
 it is essential that a special plea justifying the publication of slanderous 
 matter should admit the libel or words complained of ; and the plea will 
 be bad if it show a publication of words substantially different from those 
 laid in the declaration (m). 
 
 It is also a rule applicable as well to pleas justifying slander as other 
 
 (7) 4 B. & C. 473; 6 D. & R. 528^ S. D. & R. 695, S. C. 
 
 C. r (fc) See 3 B. & C. 556; 5 D. & R. 447; S. 
 
 (g) 4 B. & C. 605; and see 2 B. & Adol. C; 3 B. & Aid. 702; 7 Moore, 200, S. C. in 
 
 673. error; 6 Bing. 213. 
 
 {h) 7 East, 492. (I) See per Littledale, J., 4 B. & C. 483; 
 
 (i) 3 B. & C. 556; 5 D. & E. 447, 8. C. 6 D. & R. 533, S. C; and SQe 1 Bing. 403, as 
 
 It has also been decided that the publication of an authority for the position, that it is saffi- 
 
 preceedings before a magistrate cannot be cient that the substance of the libel be justified 
 
 justified on the ground of its being a correct and proved. 
 
 report of such proceedings, where the mat- . (m) See 10 B. & C. 263; Cro. Eliz. 239, 
 
 ter brought before him is not so brought in 153; Jones, 307; 1 Saund. 244 o. note. And 
 
 his judicial character or in discharge of his -per Tindal, G. J., 6 Bing. 698. 
 magisterial functions, 3 Bar. & Ores. 24; 4 
 
496 OF THE SEVBHAL PLEAS. 
 
 IN CASE, special pleas, that they should not be extended to the justification *of more 
 for'siander *^^° ^^^ matter to which in the commencement of this plea the defendant 
 in particu- professes to plead. This rule will be considered fully hereafter. We may, 
 lar. however, here mention, as an example ,to the rule, that if the libel be that 
 
 the plaintiff, a proctor, had been " thrice suspended for misconduct, " a 
 plea to the whole declaration showing only one suspension, is ill on demur- 
 rer (n). As, however, such libellous matter is devisable, a plea as to one 
 suspension, justifying the libel pro tanto, is sustainable (o). 
 
 Care should therefore be taken to confine the plea in the introductory 
 part to the exact portions of the libel or slander which can be, and after- 
 wards are, justified. In enumerating such portions it is not unsual to re- 
 peat and set out the matter in hceo verba ; (viz. " as to the following 
 parts of the said supposed libel, to wit, &c. the said defendant says, &c"); 
 but a general reference to such parts of the slander as are justified may 
 , be sufi&cicnt, if the court can see with certainty what parts are referred 
 to. Thus, if the reference be " to so much of the said supposed libel as 
 imputes to the plaintiff perjury," &c. (as the case may be,) " the defend- 
 ant saith," &c. ; that would be sufficient, without repeating all these 
 parts again, which would tend to prolixity of pleading, and ought to be 
 avoided (j9). And where the libel was that the plaintiff, proctor, had 
 been " suspended three times for extortion, once by Lord S. and twice by 
 Sir J. N." and the plea was, as to so much of the libel as imputed that 
 the plaintiff had been " once suspended," showing a suspension by Sir J. 
 N., it was held that the plea sufficiently designated the matter to which 
 it was meant to be applied( q). 
 
 The plea of justification need not expressly deny the innuendoes and 
 epithets contained in the declaration ; for if the fact be justified, the mo- 
 tive, intention, and manner are immaterial (r). 
 
 The reasons which render it expedient or injudicious in certain cases » 
 to justify specially in an action for slander or a libel, will be pointed out 
 upon a future occasion. 
 It was always necessary to plead the statute of limitations specially (s). 
 
 Plea of By the statute 8 & 9 W. 3 (0 no retaking on fresh pursuit shall be 
 
 tTa^eola- &'^^^ '"^ evidence on the trial of any issue in any action ot escape against 
 
 ration in the marshal, &c. unless the same shall be specially pleaded, nor shall any 
 
 case for an special plea be received or allowed, unles s oath be first made in writing 
 
 escape. ^^ ^^^ defendant, and filed in the proper office, that the prisoner, for 
 
 whose escape such action is brought, did escape without his 'consent, 
 
 privity or knowledge (m) . The plea of recaption must show that the 
 
 party was retaken before the action for the escape was brought (.t;). A 
 
 plea that the prisoner escaped without the gaoler's default, and returned 
 
 before action brought, should allege a detention, and that it continued to 
 
 the time of action, or that it has been terminated by legal means (jf'). 
 
 In general, when the defence consists of matters of law, though the 
 
 (n) 6 Bing. 266. (s) 2 Saund. 63 a. 
 
 (0) 6 Bing. 587. ' (J) 8 & 9 Will. 3, o. 27, a. 6. 
 
 (p) See per Le Blanc, J., 7 East, 507; and («) 2 T. R. 196; S Salk. 150. 
 
 TinJal, C. J., 6 Bing. 693. See, however, an- \x) Stra. 878; Selw. N. P. Debt, IX. 6th ed. 
 «c,49e. 630. Form of plea, post, vol. iii. 
 
 (g) 6 Bing. 587. {y) 11 East, 406. 
 
 (r) Burr. 807 ; 1 Stark. Slander, 2d ed. 476. 
 
FIRST: BEFORE THE RECENT RULES. 
 
 498 
 
 defendant was at liberty to give the matter in evidence under the general ^ OJ^- 
 issue, he might always plead it specially (ar) ; and this was frequently In aotiona 
 advisable when there was no fact disputed but only a point of law which !<"■ slander 
 might be decided upon demurrer, or on a writ of error ; or where the 1°,!'*'^ 
 plaintiff, by his replication, would be compelled to admit one or more ma- 
 terial facts in the plea, and would not be at liberty to reply de injuria, 
 and consequently the defendant's proof rendered less difficult (a) (A). 
 
 (z) 2 Mod. 274, 276; 3 Mod. 166; Com. 
 Eep. 273; 1 Wills. 54, 175; Doo. Plao. 203; 
 Cro. Eliz. 871, 900; and see in general 4 Bar, 
 & Ores. 652,553. 
 
 (a) 2 Mod. 277; 1 Stra. 5; 1 B. & P. 80; 
 Cro. Eliz. 539; 1 East, 217; 1 P. Wms. 258, 
 259; see further as to this, post. 
 
 (A) In regard to injuries to persons rela- 
 tively, in an action on the case for the seduc- 
 tion of the plaintiff's daughter, ptr quod ser- 
 vilium amisit, the defendant under the plea of 
 not guiltj; , may insist that the daughter was 
 not her father's servant. HoUoway v. Abell, 
 . 7 C. & P. 682. 
 
 Injuries to personal property, and breach 
 of duty on contract. The rules of Hil. T. 4 W. 
 4, give the following examples, of the effect 
 of the generitl issue in this branch of action. 
 
 " In this for& of the action against a car- 
 rier the plea of not guilty will operate as a 
 denial of the loss or damage, but not of the 
 receipt of the goods by the defendant as a 
 carrier for him, or of the purpose for which 
 they were received. In actions for an. escape, 
 it will operate as a denial of the neglect or 
 default of the sheriff or his officers, but not of 
 the debt judgment or preliminary p'roceed- 
 *ings." Eeg. Gen. Hil. T. 4 W. 4. In an 
 action against a railway company for the loss 
 of goods delivered to them as common car- 
 riers, the defendants pleaded that under the 
 provisions of the act of parliament constituting 
 the company, they were not liable for any 
 articles taken with them by passengers, ex- 
 cept articles of clothing of a certain v^eight 
 and' size, and that the goods lost by the 
 plaintiff were to be conveyed with him as a 
 passenger, and were not articles of clothing ; 
 and it was ' held that the plea was an argu- 
 mentative traverse of the goods having been 
 delivered to be carried, and of the defendants' 
 liability, and amounted to the general issue, 
 as the plaintiff must have shown, under the 
 plea of not guilty that the case was not 
 within the provisions of the act and must 
 have shown the existence of a special contract, 
 in order to make the company liable. El wall 
 11. Grand Junction Kailroad Co., 5 M. & W. 
 669. 
 
 Sheriffs for false returns. In an action 
 against the sheriff for a fals; return of nulla 
 bona to a writ of fieri facias, not guilty puts 
 in issue only the fact of the sheriff having 
 the money in his hands, and making the re- 
 turn alleged, and it is not competent to him 
 under that plea to set up as a defence the 
 bankruptcy, of the debtor before the execution 
 of the writ. Wright v. Lainson, 2 M. & W. 
 739, or an assignment by him of his goods to 
 
 Yoh. I. 66 
 
 a third party. Lewis u. Alcock, 3 M. & 
 W. 188. Where in an action against the 
 sheriff for not selling goods within a rea- 
 sonable time under a writ of fi. fa. and 
 falsely returning that the goods remained 
 in his possession for want of buyerSj a plea 
 that the defendant could not, nor might, nor 
 ought to have sold the goods under or by 
 virtue of the writ, or to have raised there- 
 out the monies indorsed to be levied within 
 the space of time in the declaration men- 
 tioned, was held bad, ns amounting to the 
 general issue. Rowe v. Ames, 6 M. & W. 
 747. In an action against the sheriff for a 
 false return of nulla bona to a writ of fi. fa. 
 the plaintiff alleged that the defendant todk 
 in execution divers goods and chattels of J. 
 B. (the judgment debtor) of the value of the 
 monies indorsed upon the writ and levied 
 the same thSreoilt, the defendant pleaded 
 that he did not seize or take in execution 
 any goods of J. R. nor levy thereout thfe 
 monies, in the declaration mentioned. At 
 the trial it was proved that the sheriff seized 
 goods under the plaintiff 's writ, but that the 
 proceeds were appropriated to the payment 
 of arrears of rent, and a claim upon a prior 
 writ; and it was held that the plea must be 
 construed with rtference to the meaning of 
 the declaration, the terms of which it adopted 
 and that it traversed in effect, that the de- 
 fendant did not seiie any goods liable to 
 execution at the suit of the plaintiff, and that 
 the facts established a good defence to the 
 action. Heenan v. Evans, 1 Dowl. N. S. 204. 
 
 Recaption. In an action against the mar- 
 shal of the Queen's Bench Prison, a plea al- 
 leging that while the prisoner intended and 
 was about to return to the rules, the plaintiffs 
 and others in collusion with them, in further 
 pursuance of the fraudulent contrivance, &o. 
 wrongfully caused the prisoner to be arrested 
 and detained Until a writ could be sued out 
 and served on the marshal, and alleging that 
 had not the prisoner been so ooUusively and 
 illegally arrested itnd detained, he could have 
 returned to and been within the rules before 
 the commencement of the suit, was held bad, 
 and the plaintiffs entitled to judgment, non 
 abstanie veredicto. Merry v. Chapman, 3 P. 
 & S. 26. 
 
 JVegligence. In an action against a person 
 for negligently driving his cart and horse 
 against the plaintiff's horse, the declaration 
 being framed in the usual form, it was held 
 that the defendant under the plea of not 
 guilty could not show that he was not the per- 
 son driving and that the cart did-uot be- 
 long to him. Taverner v. Little, 5 Bing. N. 
 
498 
 
 OP THE SEVERAL PLEAS. 
 
 IN CASE. Thus, in trover for a dog the defeudant might plead that B. F. was seised 
 In actions in fee and lord of a certain manor, and that he by warrant appointed the 
 in'pa^tica- ^^^fendant gamekeeper, and that such warrant was duly entered with the 
 lar, clerk of the peace, and that a certain person not qualified by law to kill 
 
 game was using the dog for the destruction of game, whereof the defend- 
 ant took him, &c. ; to which plea the plaintiff could not reply de injuria, 
 generally, because that would put in issue the seisin in fee and the war- 
 rant (6). So, in case for an injury to a right of common, the defendant 
 may plead as a justification, a right of common by grant to himself, or 
 that he acted as servant to the owner of the soil seised in fee, and thereby 
 materially lessen the evidence which he would otherwise have to adduce 
 on the trial (c). The statute of limitations is not guilty within ift<;o years 
 ■ in an action for verbal slander actionable in itself (d) ; or within six 
 years in any other action on the case (e) (1), as for criminal conversation, 
 or debauching a daughter, &c. and the statute must in this action be 
 specially pleaded (/). 
 
 is TEOVKK. Iq trover, the general issue is not guilty; and it is not usual in this ac- 
 tion to plead any other plea (2), except the statute of limitations, and a 
 
 [ *499 ] release (g-). The bankruptcy of the plaintiff, when it was a *defence, 
 might have been given in evidence under the general issue (A). The de- 
 fendant, however was at liberty to plead specially any thing which ad- 
 mitted the property in the plaintiff, and the conversion, but justified the 
 latter (i). We shall presently see how extensively the Reg. Gen. Hil. T. 
 4 W. 4, has required a special plea in trover {j). The statute of limita- 
 tions must be specially pleaded (k) ; and it seems to be prejudicious to 
 plead specially a former recovery or verdict in a prior action (J) (3). 
 
 C. 678) See also Wheatley ». Patrick, 2 M. & both the warranty and the unsoundness,— in 
 
 W. 650. And in a similar action, charging the short the whole declaration except the bargain 
 
 defendant for the negligence of his servant, it and sale, that being matter of inducement/ 
 
 was held that the defendant under this plea Spencer v. Dawson, 1 M. & Rob. 552. 
 
 could not show that the servant was not his, (A) 1 Wils, 815; Cro. Eliz. 539; 1 B. & 
 
 Hart r. Crawley, 12 A. & E. 378. Iftheac- P. 80; 1 East, 217. 
 
 cident arose from the p/aindj '» negligence, (c) 2 Mod. 274, 277^ Cro. Ehz. 539; WU- 
 
 not guilty is the propfer plea, and a plea, stat- les, 619, 620; 1 Stra. o. 
 
 tag the plrticulars of the plaintiff's negligence (d) 1 Sid. 95 ; Sir W. Jones, 196. 
 
 and oohCluding with a special traverse, was (e) 21Jac. 1, c. lb, s. d. 
 
 held bad. Gough v. Bryan, 2 M. & W. 770. (/) 1 Lutw. 99; 2 Saund 63, n. 6. . 
 
 In case by the executors of a stockholder (g) In 2 Campb. 558, it is said to have 
 
 against thi Bank of England, for refusing to been considered necessary to plead a release 
 
 t^nsfer Stock of the testatrix and to pay the specially in trover S^<« S"*'-^- 
 
 dividends, the facts that nearly all the stock (ft) 7 T. »• -0/ >/!! 'l'''^','? ; , g... 5. 
 
 had been ransferred and sold by a relative in (0 .a«<f 498! 4 Mod 424 , 1 Stra 5 , 
 
 rto life timp nf the testatrix, her name being Com. Dig. Pleader, E. 14, Cro. tliz. eda. 
 
 forg t arthatlhadthe means of know" The case in 2 Ld. Raym. 886, is erroneous as 
 
 ing of the transfer? and had been guilty of to this point. 
 
 gross -f ge-XliiXt atfetf uX 1 S, 497; 1 Lutw. 99. Form of the 
 
 not to blame, are available »» a Terence uuub y , ^^^^ ^^^^ 
 
 not guilty. Coles .. Bank of England, 10 A. lj«;..«f/y^^ conversion, though the plain- 
 
 ^Def^fnl .arraray. In an action for a tiff -- i^orant thereof until within, six 
 
 deceitful warranty of & horse, it has been years, & »»'• f Cr««'^ "»• ^^g 
 
 ruled, that the plea of not guil ty puts m issue (l) See ante, 477. n. (c) , i anew, yw. 
 
 (1) See as to New York, 2 B*v. Stat. p. 296 296. s. 18. 19. See as to Pennsylvania, the act 
 of 27th March,l713. sect. 1, 2, 1 Sm. Laws, 77. 
 
 (2) Vide Kennedy v Strong, 10 Johns. .291. 
 
 (3) Hunt V. Cook, 19 Wend. 468. 
 
FIRST : BEFORE THE RECENT RULES. 
 
 499 
 
 The plea ir. denial in replevin is non cepit modo et forma, by which avowbob, 
 the defendant put in issue, not only the taking, but also the taking in the Ji!^ 
 place mentioned in the declaration (m) (1). But the defendant could not 
 have a return of the cattle under that plea, and therefore if he want such 
 return, he should plead that he took the cattle in some other place, describ- 
 ing it, and traverse the place laid in the declaration ; and, in order to 
 have return, should avow or make cognizance (2), stating the cause for 
 which he distrained (w) ; but if the defendant ever had the cattle in the 
 place stated in the declaration, in leading them to the pound, though he 
 took them elsewhere, he should avow accordingly (o). Where the dis- 
 tress is for poor's rates, the defendant may plead not guilty, and give the 
 cause of taking in evidence (p) ; and a, general plea is given by statute 
 where a distress is taken for sewers' rates (9); and the Bankrupt Act 
 gives the general issue to a defendant sued for anything done in pursu- 
 ance thereof (r). But the defendant must avow or make cognizance, 
 with more particularity under a distress for rent (s) (3), rent-charge (t) 
 or damage feasant (m). And though the statute (a;) gives a general 
 avowry in cases of distresses for rent-service, &c. (y) (4), it is still advisa- 
 ble in some cases to set out the title specially in order that a traverse of 
 a particular part of it may be taken, and that the parties may proceed to r *500 1 
 trial upon some particular point in issue (2) ; and this statute does not 
 extend to *avowriesfor heriot custom, or for a rent-charge (a). And an 
 avowry for cognizance for rent in arrear must correctly describe the terms 
 of the tenancy (6), though under an avowry for two years' rent, the par- 
 ty will succeed though it appear that rent was due for one year only (c). 
 Although in general it is sufficient to allegea mere possessory title against 
 
 (m) 1 Stra. 507; 2 Mod. 119; 9 Saund. 
 347, note 1 Gilb. Bepl. 4th ed. (1823); 2 
 Wil3. 355. 
 
 (n) 1 Saund. 347, note 1. 
 . (o) Post, vol. iii. 
 
 (;;) 43 Eliz. o. 2, s. 19. See Co. Lit. 283 
 a. 
 
 iq) 23 Hen. 8, c. 5, s. 19. 
 
 (r) 6 Geo. 4. o. 16, s. 44. 
 
 (s) 11 Geo. 2, 0. 19, ». 22; 2 Saund. 284 
 d, n. 4; 1 Saund. 347, note 6. 
 
 (0 IB. & P. 213; 1 New. Rep. 56. 
 
 (») 2 B. & P. 458; 3 Saund. 284 d; 1 
 
 Saund. 347. 
 
 (z) 11 Geo. 2, e. 19, s. 22. 
 
 (y) As to digtinotion between an avowry 
 and. justification in replevin, see Marriot ti. 
 Shaw, Com. Rep. 274, Vin. Ab. Disolaimer, 
 503. 
 
 (z) 2 Saund. 284 d. 
 
 (o) 2Wilg.28; 2 Saund. 168 a, b; 1 B. & 
 P. 213. 
 
 (5) 4 Taunt. 320. See as to variance, &c. 
 ante, 305. 
 
 (c) 6 East, 434; 6 T. E. 248; 3 B. & P. 
 348. 
 
 (1) Smith V. Snyder, 15 Wend. 325. In replevin, the plea of non cepit, although it admits 
 the property to be in the plaintiff, may nevertheless be joined with a plea of property in the de- 
 fendant or other person. Simpson v. M'Farland, 18 Pick. 427. The want of a plea in replevin 
 is not cured by a verdict. Lecky v. M'Dermot, 5 Serg. & R. 331. 
 
 (2) The plea of property in a stranger, which may be pleaded either in abatement or in 
 bar, entitles the party to a return without an avowry. Harrison v. M'Intosh, 1 Johns. 380, 
 384 ; Bemus v. Beekman, 3 Wend. 667; M'Farland v. Baker, 1 Mass. 152. 
 
 (3) Vide Shepherd v. Boyee, 2 Johns. 446. In Pennsylvania, by the lOth'seotion of the Act 
 of 21st March, 1772, it is provided, " That it shall and may be lawful for all defendants in 
 replevin, to avow and make conusance generally, that the plaintiff in replevin or other ten- 
 ant of the lands and tenements whereon such distress was made, enjoyed the same under a 
 grant or demise, at such a certain rent or service, during the time wherein the rent or service 
 distrained for incurred, which rent or service was. then and still remains due, without further 
 setting forth the grant, tenure, demise, or title of such landlord, or landlords, lessor or lessors," 
 &o. 1 Sm. Laws, 370. 
 
 (4) The statute has not been adopted in the State of New Tork. Harrison v. M'Intosh, 1 
 Johns. 384. The 14th and 15th sections of this statute are in force in JPennsylvania, 3 Binn. 
 626; Roberts' Dig. 236. But the above stated provision of tb@ Fennsylvan^b .act has beei) 
 adopted in the Revised statutes, vol. ii. 529, s. 41. 
 
500 OF THE SEVERAL PLEAS. 
 
 ™ a wrong-doer, yet in replevin there is an exception ; and it is not suffi- 
 EEPLEviN. g^gjjj; to plead merely that the defendant was possessed of a close, and 
 because the cattle trespassed, &c., he took them damage feasant. But it 
 may be alleged generally that the close was the close, soil, and freehold 
 {liberum tenementurn) of the defendant i^d) (1). 
 m In trespass, whether to the person, personal or real property, the defend- 
 
 TOESPAss. ^^^ ^^^^ under the general issue of not guilty give in evidence matter which 
 ral^rale. ' directly controverts the fact of his having committed the acts complained of 
 (e), as in trespass for driving the shafts of a gig into the plaintiff's horse, 
 if in fact the plaintiff drove his horse against such shaft, and thereby him- 
 self occasioned the injury, or if the injury were accidental, such matter' 
 may be properly proved under not guilty (/)> and in trespass for assault 
 and battery with a tearing of clothes, a plea of not guilty of the assault 
 mode et forma was held to operate as a denial of the battery and laceravit 
 as well as the assault (g"), and no person is bound to justify who is not 
 prima facie a trespasser (A) (2). The plea of not guilty therefore is pro- 
 per in trespass to persons if the defendant committed no assault, battery, 
 or imprisonment ; and in trespass to personal property, if the defendant 
 were not guilty, of the taking, &c. (i). In trespass to real property, this 
 plea formerly not only put in issue the fact of the trespass, but also the 
 possessory title or right of the plaintiff: because the declaration, as before 
 shown (&), states the plaintiff's title to the close, by the allegation that it 
 was the close " of the plaintiff;" a matter which is plainly denied by the 
 general issue not guilty " of the said trespasses, &c." (Z). It followed 
 that before the recent rules any title (3), whether freehold or possessory. 
 in the defendant, or a person under whom he claimed, might be given in 
 evidence under " not guilty' " (4) if such title showed that the right of 
 possession, which was necessary in order to support trespass, was not in 
 r *501 ] the plaintiff, but in the defendant, or the party under whom he justified 
 (m). But where the act would at common law prima facie appear to be 
 trespass, and the fads stated in the ' declaration could not be denied, any 
 matter or iustification or excuse, or done by virtue of a warrant or author- 
 ity, must 'in general be specially pleaded (w) (5). And therefore cvqa 
 
 (,1\ Pott Tol. iii.; i Saund. 346 e, note, (*) .ante, 879, 380. 
 
 2-^f /fm note 3; StepheB, 2d ed. 358, (0 8 T R. 403; 7 T. R. 354; W.ne8,222; 
 
 ocQ 1 Ring. 158. 
 
 (e) 8 Ring. 135; 10 Moore, 502, S. C; (m) .a7>te,500 Bote (0; aiiter as to tenan- 
 
 ^^^"2 SMoVfo- '''' '''' '"' '" "^':)TS:^X'87t37t500T c''uu 282 
 ^T^fVrL 1p 232 b.^83 a; DoSgl. 611; 2 R«l. Ab. 682; 12 
 
 (j) Id. 
 
 ,1 N A ^i.o *hat iHie MonertY in the goods is in a stranger and not in the plaintiff is a good 
 tai^ an^'tlofofr^CL^artinlRay,* Rla^kf.loi; Han-ison .. M'Intosh, 1 Johns. 
 
 ^^A defendant in replevin as in other cases may plead several pleas. Martin «. Ray, 1 
 Bla^k"rSp™g"« ''■ Kneeland, 12 WendeU, 161, otherwise in Virginia. Vaiden v. Bell, 3 
 Kand,448. a p-„v 197 
 
 is! vtr Hyatt ."wood, 4 i^^^^^^^^^ 1 PhiUips' Ev. 129; Monumoi .. Rogers, 1 Ma«s. 
 
 ^% Bnt not property in a stranger by whose order the defendant entered. Philpot v. Holmes, 
 Peake's Ca«. 67, - ^27, 145. Vide Butterworth v. Soper, 18 
 
 JoinLSGett^THoyfil Johns '579; Gambling «. Prince, 2 Nott & M'C. 138. Anght 
 
first: before the recent rules. 501 
 
 where the defendant did the act at the request of the plaintiff (o) ; or uf 
 where the injury was occasioned by the plaintiff's own default ( jo) ; those ™^'^'"»«- 
 matters of defence must always have been specially pleaded. If a plea of T°P««'S'»'s. 
 justification consisted of two facts, each of which would, when separately 
 pleaded, amount to a good defence, it would, unless in the case of pleas o'f 
 prescription, sufficiently support the justification, if one of those facts be 
 found by the jury {q). Where the committing the trespass complained of 
 could not be disputed, but could be justified, it was frequently advisable to 
 plead such justification alone, without the plea of the general issue, for by 
 that means the defendant's counsel might on the trial have the general re- 
 ply (r) (1). Where the defence was that the defendant obtained a ver- 
 dict in a former suit upon the same cause of action, the plea should be spe- 
 cial by way of estoppel (s). 
 
 In trespass to persons, son assault demesne (f) ; moderate correction In trespass 
 (2) of a servant, &c. (m) : molliter manus imposuit (3) to preserve the *°^l'«'^»°°- 
 peace, or a justification in defence of the possession of real or personal * ^' 
 property (d) (4) : or by authority of law without process, as a private 
 individual (x) ; or under civil process either mesne or final {y) of superior 
 («), or inferior, or foreign courts, must always have been pleaded spec- 
 ially (o) (5). A plea of justification is to enumerate and cover the 
 whole, or the plaintifi' without a special replication or new assignment will 
 be entitled to a verdict for the trespass proved and not pleaded to (6) . 
 
 For whoever assaults or imprisons another (except in some cases under 
 particular statutes hereafter noticed) (c),must justify himself by showing 
 specially to the Court that the act was lawful (6). And plea justifying an 
 arrest of the plaintiff upon the ground that a felony had been committed, 
 and that there was reasonable ground to suspect and accuse the plaintiff, 
 must distinctly state the specific reasons for suspecting the plaintiff (d), 
 
 (0) 2 Campb. 378, 379. ' (a;) 6 T. R. 562. A constable, &o. may 
 (p) 2 Campb. 600. plead the general issue, post. 
 
 (q) 1 Taunt. 146; Jenk. 4 Cent. 184. (j) 3 Wils. 370; 1 Saund. 298, note 1. 
 
 (r) 3 Camp. 366. («) Id. 
 
 (s) 2 B. & Aid. 662; M'Clel. & T. 509. (a) 2 East, 260, 274;*Cowp. 18. 
 
 (/) 8 T. R. 299; 1 Sannd. 77, 296, n. 1. (b) Bush v. Parker, I'Bing. N. C. 72. 
 
 (u) 2 B. & P. 224. (c) Post. 
 
 (d) 8 T. K. 78, 299; 3 WUs. 71. (d) Ante, 230. 
 
 of way over the close may be shown by the defendant under the general issue. Strout v. Berry, 
 7 Mass. 385; Saunders v. Wilson, 12 Wendell, 338, or soil and freehold in himself. Monumoi 
 V. Rogers, 1 Mass. 159. Licence from the plaintiff must be specially pleaded. Gambling v. 
 Prince, 2 Nott & M'C. 138. Slambaugh v. Hollabaugh, 10 Serg. & R. 357; Ruggles v. Lesure, 
 24 Pick. 187. As to license from a stranger, as a co-tenant with the plaintiff, see Rawsoh v. 
 Morse, 4 Pick. 127. 
 
 (1) .See Davis v. Mason, 4 Pick. 256; Weidman v. Kohr, 13 Serg. & Rawle, 17. 
 
 (2) Hannah v. Edes, 15 Mass. 347. But in an action of assault and battery, the improper 
 conduct of tjie plaintiff in the business of the defendant, before the time of the alleged assault, 
 are not admissible in evidence for the purpose of mitigating damages. Matthews v. Terry, 15 
 Conn. 455. Whenever in answer to the defendant's plea of non assault, he relies upon new 
 matter, he should not reply generally de injuria, but should state such new matter specially. 
 Brown v. Bennett, 5 Cowen, 181. 
 
 (3) Molliter manus imposuit may justify a mere assault, but it is no answer to a charge of 
 beating, bruising, wounding, and ill-treating the plaintiff. Gates v. Lounsby, 20 Johns. 427 ; 
 Shain v. Markman, J. J. Marsh. 578. 
 
 (4) See Ford v. Logan, 2 Marsh. 325; M'llvoy v. Cockran, 2 Marsh. 276; Robinson v. Haw- 
 kins, 4 Monro, 136; Baldwin v. Hayden, 6 Conn. 453; Haytt v. Wood, 3 Johns. 239; Sampson 
 V. Henry. 3 Pick. 879. 
 
 (5) Vide Butterworth ». Soper, 13 Johns. 443. 
 
 (6) Where the ground on which it is attempted to make the defendant liable is, his having 
 on delivering process to an officer, directed him to arrest and imprison the plaintiff, he may 
 
*502 
 
 OF THE SEVERAL PLEAS. 
 
 TBEBPASS, 
 
 SODS. 
 
 In trespass 
 
 These are positive rules of law, in order to prevent surprise on the plain- 
 tiff at the trial, by the defendant then assigning various reasons *and causes 
 
 ^° P"" of imprisoning the plaintiff, of which he had no notice, and • which conse- 
 quently he could not be prepared to meet at the trial on the plea of not 
 guilty, on fair and equal terms with respect to the evidence and proof of 
 facts (e.) But if a person touched another in conversation or in joke, so 
 
 to person-" that no actionable assault or battery was committed,' then no special plea 
 
 alty. was necessary (/). Molliter manus imposuit was a justification of batte- 
 
 ry as well as an assault (.g-) (1). 
 
 In trespass to personal property, a seizure as an heriot service (A), or 
 for poor rates (t), might before the recent rules be given in evidence un- 
 der the general issue ; but in general, matters which admit the plaintiff 's 
 property as well as the seizure, &c. imust always have been pleaded (k ) 
 as a justification for cutting ropes, or killing dogs (Z), or taking guns, &c. 
 (m), or even the license of the plaintiff to do the act complained of (m), 
 or that it was occasioned by his own negligence (o). A distress ioxrent, 
 when made on the demised premises, might by express enactment be given 
 in evidence under the general issue (;?), but if made ojf the demised prem- 
 ises, as on a common, or under a fraudulent removal, the defence must be 
 specially pleaded (g). A distress or seizure for tolls (r), stallage at a 
 fair, &c. (s), under a by-law (f), or for damage feasant by the occupier 
 (m), or a commoner (v), or other matter of justification, with or without 
 process, must also be pleaded specially (x) (2). 
 
 To realty. In trespass to real property, we have seen that the defendant might un- 
 der the general issue dispute the plaintiff's possessory right by showing 
 that the title and possessory right are vested in himself, or in another un- 
 der whom he claims, or whose authority he had {y'). Although the plain- 
 tiff proved mere possession, that will suffice, if the defendant cannot show 
 a superior right in himself or another under whom he can justify (z) (8). 
 
 (e) Co. Lit. 482 b, 383 a; 3 Wila. 370, 871. (?) 1 Esp. R. 257; 4 Campb. 136. 
 
 (/) Rep. temp. Hardw. 301; 1 Selw. 33. (r) Ld. Raym. 384; 3 Burr. 1402; Lutw. 
 
 (g) Com. Dig. Pleader, 8 M. 16. Per Best, 1519; 8 Went. 124; Carth. 357. 
 
 C. J., 4 Bing. 206. (s) 3 Lev. 224, 227. 
 
 (A) Cro. Eliz. 32; 2 Saund. 468, a, b. (0 1 T. R. 118; 4 Mod. 377. 
 
 (0 43 Eliz. 0. 2, 9. 19. (u) 1 Saund. 221; 2 Id. 294. 
 
 (yfc) Com. Dig. Pleader, 3 M. 25; thougli («) 2Wils.51; Yelv. 104; 3 Wils. 126, 291 ; 
 
 connected with a possessory claim to land, post, 1 Saund. 346 ; 8 East, 394. 
 
 504. (x) 2 Campb. 378, 379, 500, 
 
 (I) 1 Saund. 84; 2 Lutw, 1494; Com. Dig. (y) Ante, 500. 
 
 Pleader, 8 M. 33; 1 Taunt. 670; 2 Campb. (z) Ante, 175, 176. The defendant will 
 
 511. prevail if he can show a superior title and 
 
 (77! ) Com. Dig. Pleader, 3 M. 25, &o. right of possession, although he /ore ii/j/ broke 
 
 (n) 2 Campb. 378, 379. into the house, and took possession by actual 
 
 (0) 2 Campb. 500. force, and evicted the plaintiff, see 7 IMoore, 
 (p) 11 Geo. 2, 0. 19, s. 21. 574; 1 Bing. 158, S. C. 
 
 show under the general issue that the arrest and imprisonment were not a consequence of his 
 instructions to the officer, but in pursuance of a competent and paramount authority: for if the 
 arrest and imprisonment were the effect of any other cause than the instructions he gave the 
 officer, he was emphatically not guilty, and i*, was not a case for justification. Herrick ». Man- 
 ly, 1 Caines, 252. Trespass cannot be justified on the ground of mistake merely. Hobart v. 
 Hagget, 3 Pairf. 67. 
 
 (1) See Gates v. Lounsbury, 20 Johns. 427. 
 
 (2) An officer of the revenue, seizing goods as forfeited, and causing them to be libelled and 
 tried, has but two pleas of justification at the suit of the owner, a condemnation, or an ac- 
 quittal with certificate of probable cause. Gelston v. Hoyt, 13 Johns. 579, 561. Vide 10 Conn. 
 822. 
 
 (8) Brandon v. Grimke, 1 Nott & M'Cord, 856. See Marsh v. Berry, 7 Cowen, 344; Mur- 
 ray V. Webster, 6 TS. Hamp. 371. In an action of trespass, the defendant may o&r as many 
 
FIRST: BEFOBB THE RECENT RULES. *503 
 
 There are some instanpes in which, although it was not heretofore essen- m 
 tial, yet it might be judicious to plead specially the defendant's *title, or ™^^^m. 
 the title of the party under whom he had authority to commit the acts ^° "^^^^y- 
 complained of. 
 
 If .the closes were not described by their abuttals or names in the dec- 
 laration, and the defendant was doubtful as to the exact extent of the pro- 
 perty claimed by the plaintiff, and had any close in the parish mentioned 
 in the declaration, he might, before the recent rules, expressly requiring 
 the name or abuttals or other particular description to be stated, compel 
 the plaintiff to neiv assign, designating and describing specifically what 
 property he claimed, by pleading liberum tenementum. The reason of 
 this^ doctrine, and the rules with regard to new assignments, will be ex- 
 plained under the head of Replications. 
 
 The plea of liberum tenementum (1) states a general freehold title, 
 without defining the exact quality or nature of such title. It states that 
 the locus in quo was and is the close, soil and freehold, of the defendant, 
 &c. Under that plea any estate oi freehold, as in fee, in tail, or for life, 
 but not a freehold in remainder or reversion, might be given in evidence, 
 and the plea was peculiar, and formed an exception to the general rule, 
 that a party must show a, precise title (a). This general plea was rarely 
 of any other utility then to compel a new assignment, describing the closes, 
 where they had not been particularly described in the declaration (2). It 
 might, however, be usefully adopted in all cases where the .freehold was 
 laid to be in a third person, and the defendant justified as the servant of 
 the third party ; as the plaintiff in his replication could deny one only of 
 the two facts pleaded, viz. the freehold title pleaded, or the authority or 
 command from the alleged freeholder to the defendant, and could not by 
 his replication put both those matters in issue ; and that which is not de- 
 nied is admitted on the record. Liberum tenementum was a good plea to 
 trespass in a several or free fishery, the owner of the soil being prima 
 facie owner of the fishery (6). 
 
 2dly. If the defendant be anxious to compel the plaintiff to state his 
 title specially upon the record, or admit some part of the title of the de* 
 fendant, or the party under whom he justifies, he may also with propriety 
 plead liberum tenementum, or adopt a still more special plea of title. 
 Thus, if the defendant be in reality the freeholder, so that the plaintiff can- 
 not with safety deny the plea, he is driven to admit its truth, and to de- 
 duce a title from the defendant as that he demised the close to the plain- 
 tiff, &c. 
 
 In observing upon the qualities of pleas, we shall hereafter see that a 
 special plea in trespass which claims for the defendant a possessory right, 
 
 (0) Stephen, 2d edit. 370; 1 Saund. 347 d, (4) 18 Edw. 4; 4 Co. Lit. 127 a, notes. 
 n. 6. As to tenancy in common, Sow. R. 201. 
 
 titles to the land in dispute as he pleases, and if they fail him, he may resort to, and de- 
 pend upon, his possessory right. Mackay v. Reynolds, 2 Bay, 474 ; Strange v. Durham, 2 ib, 
 427. 
 
 (1) Where the plaintiff alleged several trespasses in several closes, at different times, and the 
 defendant pleaded that the several closes were one and the same close, and that it «ras his free- 
 hold, it was held bad, and that the defendant should have justified as to all the closes, or have 
 denied the trespasses in all the closes, except one, and justified as to that. Nevins v. Keeler, 6 
 Johns. 63. 
 
 (2) The plea admits the possession in the plaintiff, and the trespass charged in the plaintiff's 
 pleading. Caruth v. Allen, 2 M'Cord, 226, 
 
*604 OF THE SEVBBAL PLEAS. 
 
 ^ and yet does not give the plaintiff express color, is bad ; because it amounts 
 TRESPASS. ^^ |.jjg general issue, and violates the principle that a plea must deny, or 
 To realty, j^^gt confess and avoid the matter alleged *in the declaration. A plea of 
 liberum tenementum is free from this objection because it gives apparent 
 color ; as it is not absolutely and manifestly inconsistent therewith, that 
 the plaintiff had some inferior leasehold or minor title, in respect where- 
 of hs might have had a possessory right or title, or at least possession. 
 But a special plea disclosing a possessory title in the defendant, as a lease 
 holder or termor, is openly at variance with, and directly contradicts, the 
 very gist of the plaintiff's action of trespass. In such case, therefore, an 
 express color, that is, a plausible or apparent but fictitious title, must be 
 given to the plaintiff, according to the rules which will hereafter be> ex- 
 plained. The object is to compel the plaintiff to state specifically his title, 
 or deny that alleged in the special plea, an object which is rarely to be ob- 
 tained by liberum tenementum, the replication to which may simply trav- 
 erse the general allegation. In framing the special plea of title, care-must 
 be taken to attend to the following general rules, which ate ably pointed 
 out by Mr. Serjeant Stephen, with regard to the statement of a derivative 
 title : — 1st. The derivation or commencement of an estate in fee Simple 
 need not be shown, as this would tend to useless prolixity. It suffices in 
 general to deduce the title from the last absolute owner in fee simple 
 from or through whom the defendant claims, although the fee was only 
 conditional, er determinable on a certain event (c). 2dly. In the case of 
 particular estates, being interests or titles less than a seisin in fee simple 
 and in the case of copyholds, their commencement must be shown ; that 
 is, the derivation of the title from the last seisin in fee must be alleged 
 (^d). 3dly. A party claiming by inheritance or descent, must specially 
 show how and in what character he is heir (e). 4thly. If the party claim 
 by conveyance, each distinct conveyance, and|the nature thereof must be 
 specially set forth (/). The different forms of pleading title and convey- 
 ances are fully stated in the second volume. 5thly-. It is a rule that the 
 conveyance should be pleaded according to its legal import and effect, 
 rather than its form of words (g-). 6thly. Where the nature of the con- 
 veyance is such that it would at common law be valid without deed or 
 writing, there no deed or writing need be alleged in the pleading, though 
 such document exist, and a statute renders it necessary, as in the case of 
 a conveyance with livery of seisin, &c. ; but where the nature of the con- 
 veyance requires at common law a deed or other writing, such instrument 
 must be alleged, ks in the case of a grant of any thing, which lies in grant, 
 and cannot be granted without deed (li). And if a transfer of property 
 [ *S05 ] be inoperative, except by 'statute, and the act requiring writing, as in the 
 case of a devise of lands, the' pleading must show that the will was in 
 writing {i). 
 
 Although in general liberum tenementum may be given in evidence un- 
 der the general issue, yet if the defendant, in taking possession of his close, 
 &c. has necessarily injured or destroyed or removed goods the property 
 of the plaintiff, it is proper to plead liberum tenementum, justifying such 
 
 (c) Stephen, 2d edit. 861; Co. Lit. 308 b; (/) Id. 
 
 Cro. Car. 571; Boot. PI. 287. (g) Steplien, 2edit.^365; 1 Sannd. 235 b, 
 
 (d) Stephen, 2d edit.. 362, 368; ante, 879, note 9. See ante, 305 to 807. 
 
 880; 1 Saund. 186 d, n. 1. There is an ex- (A) Stephen. 2d edit. 366, 367; 1 Saund. 
 
 ception where the title is only inducement, 276 a, n. 2; ante, 222. A lease for years is, 
 
 ante, 79, 380. however, always pleaded by deed. 
 
 (e) Stephen, 2d edit. 866 ante, 368. (t) 1 Saund. 276, a, n. 2; ante, 222, 224. 
 
EIRST: — BEPOBB THE RECENT RULES. 605 
 
 acts as to the personalty, and the general issue is not sufficient (1). As m 
 If the defendant justify cutting the plaintiff 's posts and rails, put on his, ''"^^^^s. 
 the defendant's land, and the defendant do not claim such posts and rails ^° '**"?- 
 yc) (2). But if the plaintiff has affixed any thing to the defendant's 
 freehold, so that it becomes part thereof, as a wall, &c., then the general 
 issue will suffice, and it is not necessary specially to justify the destruction 
 of such fixture, as it became the defendant's property by being annexed 
 to his freehold (/). 
 
 An excuse of the trespass, as on account of a defect of fences which 
 the plaifitiff was bound to repair (?ra), or a license from the plaintiff (m) ; 
 and & justification under a rent-charge, or in respect of any easement or 
 incotporeal right (o), as common of fishery (p), or of pasture (g), or of 
 turbary (r), and a right of way, either public (s), or private (0, and 
 whether by grant (m), will (x), prescription {y), custom, or necessity («), 
 must be pleaded specially (3). The forms and explanatory notes will 
 be found in the third volume. 
 
 In justifying a trespass to land under a right of way, &c. it was not 
 sufficient for the defendant to plead that he was lawfully possessed of 
 anotHbr close, and by reason of such possession was'entitled to a right of 
 way over the plaintiff's land ; but he must set forth some special title to 
 his close and right of way, as for example, that of seisin in fee of the 
 close and a prescription in a que estate (a) to the right of way, &c. (^b). 
 We shall presently see in the next division, stating the present rules of 
 pleading, the effect of the recent statute, relieving parties form the ne- 
 cessity, of pleading a right of way or of common, &c. in a que estate, and 
 authorizing a more general mode of stating the right. 
 
 In pleading a right of common by prescription, the defendant must *al- [ •5061 
 so have shown a seisin in fee of the land in 'respect of which he claims, 
 and prescribed in the que estate for the right. Where a defendant justi- 
 fied under a right of common of pasture, by showing a demise from a free- 
 
 (k) 8 East," 894; ante, 602. (<) Id. 
 
 il) 8 T. R. 403; 7 East, 829. (it) 2 Mod. 274; 3 East, 294. 
 
 (m) Co. Lit. 283; 2 Saund. 285. {x) IB. & P. 371; 1 Saund. 323, n. 6; 
 
 (»!) Jinte, 503; 2 Campb. 379; 2 T. E. Id. 151 o. 
 168; 7 Taunt, 156; Hob: 175; Gilb. C. P. 63; (j) 1 East, 350, 377, 381; 1 B. & P. 371; 
 
 Vin. Ab. License; Com. Dig. Pleader, 8 M. 35; 1 Saund. 322, n. 6. 
 
 Sawyer u. Newland, 9 Vermont, 883, but see (z) 1 Saund. 323; S T. R. 50; Lutw. 
 
 21 Hen. 7, 28, pi. 5. 1487. 
 
 (0) Per Lord Loughborough, 1 Hen. Bla. (a) As to this, see 2 Bla. Com. 664; I 
 852; 2 Saund. 402, note 1; Co. Lit. 283; 2 Saund. 346, n. 2; 4 T. R. 718, 719. As to a 
 Wils. 173; Com. Dig. Pleader, E. 16. declaration for obstruotiri^ common, &c. ante, 
 
 (p) Com. Dig. Piscary. 881. As to variances in stating pr&oriptions, 
 
 (q) 1 Saund; 25, 340; 2 Id. 2. ante, 386. 
 ■ (r) 6 T. R. 748. • (6) 1 Saund. 346, n. 2; Steph. 2d ed. 359. 
 
 (s) 1 Hen, Bla. 352j^ 8 T. R. 606; 2 Saund. As to a right of way of necessity, see Peake'a 
 
 158 c. notes 4 and 6. Addenda, or vol. ii. 152, 
 
 (1) The fact that one man has personal property within the enclosure of another, does nofe., 
 authorize the owner of such property to enter the enclosure, for the purpose of taking such 
 property into his possession. He should demand it of the owner of the land, and if he refuses 
 him permission to take it, such refusal would be evidence of a, conversion, for which an action 
 would lie. Roach v. Damron, 2 Humph. 425. 
 
 (2) The title as to the soil does not come in question upon a declaration, only for cutting 
 down and carrying away trees on the plaintiff's ground. Weidham v. Eohr, 18 Serg. & 
 Bawle, 17. 
 
 (3) But see ante, 501 in note. Matters' of excuse or justification at common law must be 
 pleaded, and cannot be received in evidence under the general issue. Root v. Chandler, lO 
 Wend. 112, 113; Demick v. Chapman, 11 Johns. 182. The reason of th^ jul« i» to prevent 
 surprise. 7 Cowen, 35. 
 
 Vol. ' 67 
 
508 
 
 OP THE SEVERAL PLEAS. 
 
 WHEN TO law on the face of the pleadings, and thus obtain the opinion of the Court 
 sPEciAiLT. ^pon a demurrer, without the intervention of a jury. It would be "beyond 
 the limits of this treatise to attempt to enumerate all the various instances 
 in which it might be advisable or not to plead specially. 
 
 When ad- In some cases where a justification was to be pleaded, it was advisable 
 plead Vnly °°* ^^^° *° plead the general issue. Thus in trespass quare clausvm fre- 
 a justiBca^ gU, if the plaintiff's possession could not be disputed, and the. defendant 
 tion. relied upon a right of way, it was better not to plead the general issue, 
 
 because if only the right of way was pleaded and traverjsed then the de- 
 fendant's counsel had a right to begin at the trial, and thereby, in case the 
 plaintiff should examine any witness in chief, the defendant's counsel would 
 have the advantage of the reply (Ji). And this course was sometimes ad- 
 visedly adapted in actions for a libel, where the publication of the libel 
 as described in the declaration was to be admitted (i). And in actions 
 against executors and administrators, upon causes of action which accrued 
 against the deceased, it was often impolitic in reference to costs to plead 
 the general issue, and thereby drive the plaintiff to trial to prove the debt, 
 in cases in which there was no reasonable ground to dispute it (A). 
 
 When ad- On the Other hand, in an action for assault and battery, it was not advi- 
 visable not gable to plead specially, justifying the battery, if there were the least 
 spe^iaUy. doubt of establishing the justification, for where a battery is not admitted 
 r *509 1 ^^ *^^ P^®^ ^^ judge must certify to give the plaintiff his *full costs, if he 
 obtain a verdict for damages less l^ian 40s. ; but where the defendant by 
 his plea admits a battery, and it is found against him, no certificate is ne- 
 cessary (/). So in trespass quare clausumf regit, if the defendant plead 
 a license or other justification (which does not make title to the land,) to 
 the whole of the trespasses, and it be found against him, the plaintiff is 
 entitled- to full costs without a certificate, though he do not recover 40s. 
 damages {m) (1) ; and the special plea should therefore in these cases be 
 confined merely to such trespasses as the defendant can certainly justify. 
 However, in case for slander, though the defendant justify, and it be 
 found against him, yet if the damages be under 40s. the plaintiff catinot 
 recover more costs than damages (w) ; in the latter action, therefore, 
 there is no objection to a special plea on the ground of costs, though it is 
 not advisable to justify on the ground that the words are true, unless the 
 plea can be supported by indisputable evidence, because such a justifica- 
 tion when ineffectual will in general materially enhance the damages. 
 But ■ there are however some decisions that under the general issue, in 
 case for slanderous matter, the truth cannot be proved even in mitigation 
 of damages (o) ; and therefore a special plea is often niccessary with a view 
 to reduce the damages, although the proofs fall short of substantiating.the 
 exact truth of all the slander stated. It is also doubtfiil whether rumors 
 
 (ft) 8 Campb. 366, 861. edit. 963; see 9 Price, 314. 
 (!) 8C. &P. 474. (") 4 East, 567; 21 Jac. 1,0. 16; s. 6. 
 
 \k) See Tidd; 9,th edit. 979, 980. as to -what actions for slander this statute 
 
 (0 6 T. R. 562; Tidd. 9th edit. 965; see 8 extends to, see Tidd, 9th edit. 962. 
 Taupt. 689; 1 Moore, 420, S. C. (o) Ante, 493. 
 
 (m) 7 T. R. 660; 7 East, 325; Tidd, 9th 
 
 (1) As to costs in jhrespaas quare claifsum f regit, see Crane v. Comstock, aitd Jackson v. Banr 
 4all, 11 Johns, 404, 405. 
 
FIRST: BBFOEE THE RECENT RULES. 509 
 
 or suspicions of the plaintiff 's guilt can he shown even in mitigation of ^^^^ °^ 
 damages (p), which often presents an additional reason for pleading spe 
 cially to let in such evidence. 
 
 ESTOPPEL 
 
 ■WHEN 
 
 MUST BE 
 
 SPECIALLY 
 
 Matter of estoppel should be specially pleaded as such. Thus, if the de- /i^ommon 
 fendant obtained a verdict against the plaintiff in a former action upon the law (j). 
 same cause of action as that which forms the subject of the second suit, if 
 the verdict be not pleaded as an estoppel the defendant refers the merits 
 to the second jury, and the verdict is merely argument, and is not conclu- 
 sive in his favor (/)• . 
 
 Cai-e should be taken to plead in the first instance every matter of de- AH <Jeftn- 
 fence of which the defendant would -not be at liberty to avail himself un- beyjeaded. 
 der the general issue. For, thoagh the Court will in general gjve the de- 
 fendant leave to add or alter a plea where the justice of the case requires 
 it, jet this will be. only 6n payment of the costs incurred by his mistake : 
 and if the defendant be obliged to ask indulgence, as time to plead, he will ^ r-, -• 
 not afterwards be allowed to plead a plea *contrary to the merits or jus- [ *^^^ J 
 tice of the case : thus to a declaration by an attorney on his bill of costs, 
 a defendant, after obtaining time, was not, allowed to plead that the plain- 
 tiff had not delivered his signed bill a month before action brought (s) : 
 and if the cause should proceed to trial and be found against the defend- 
 ant on account of th6 omission of one or more grounds of defence, he will 
 in general be precluded for ever from taking advantage thereof, unless in 
 some cases by audita querela or error in fact coram nobis, &c. (f). And 
 as it is a rule of pleading that a departure will not be allowed, the de- 
 fendant cannot in general rectify the omission of a ground of defence by 
 his rejoinder. In debt on an arbitration bond, if the defendant merely 
 plead no award, and the plaintiff reply setting out an award, the defend- 
 ant cannot rejoin that he performed it, &c. (m) (1) . 
 
 There are many cases in which it may be advisable to plead in one plea wiieu it 
 all the grounds of defence, and in which it may sufl&ce to prove part of the J^'prov?°* 
 allegation in the plea (y). part of the 
 
 ground of 
 
 It is sometimes advisable not to plead either the general issue or a spe- of suffer- 
 cial plea. to the whole declaration, but to suffer judgment by default to ingjudg- 
 certain parts of the declaration, which the plaintiff can indisputably estab- ™ent by 
 lish. Thus, where the plaintiff's demand is altogether denied by the pleas, to^^^rt ^ 
 and at the trial the plaintiff obtain a verdict for part of his demand, and 
 the defendant obtain a verdict as to the other part, the plaintiff is entitled 
 to the costs of the issues found for him, which include the general costs of 
 
 (p) Id. ibid. and Mordaunt, 2 Bing. N. C. 140; 3 Dowl. 
 
 Ig) See further as to pleas of estoppel, 507. 
 yosi ; and see index, Estoppel, and Reg. Gen. (/) Tidd, 9th edit. 907; id. Index, tit. 
 
 Hil. T. 4 W. 4, r. 9. , ".-Jucfito guere/a;" 2 Saund. 137 g to 150. 
 
 (r) 2 B. & Aid. 668; 2 Bing. 337; and see (u) See post, as to departure in pleading. 
 
 M'Clel. & Y. 509. (v) 1 Bing. N. C. 72; 3 Dowl. 483; 1 Adol, 
 
 (s) Nealei). M'Kenzie, 1 Crom. M. & Ros. & El. 264; 3 iTev. & Man. 259, S. C; 1 Har. 
 
 61; 2 Dowl. 702; 4 Tyr. 670, S. C; Beck & Woll. 15. 
 
 ' / 
 
 (1) Ace. Barlow v. Todd, 8 Johns. 367; Munroe v. Allaire, 2 Caioea, 320. And seeFowler 
 V. eiark, 8 Day, 231. 4 
 
510 OP THE SEVERAL PLEAS. 
 
 WHEN TO the trial, but do not include the costs of the issues found for the defend- 
 BPEoiALLY ^°* ' ^^^ °'^ which last-mentioned issues the defendant -was not formerly 
 ' entitled to claim any costs from the plaintifiT. Bat where the defendant 
 suffered judgment by default.as to part of the plaintiff's demand, and plead- 
 ed only to the other part, and the plaintiff took issue on the f^leas, and at 
 the trial all the issues were found for the defendant, then the defendant 
 was entitled to the costs of the issues found for him, and the plaintiff was 
 entitled only to the costs of the judgment by default, and what he would 
 have been entitled to on executing a writ of inquiry (a;). 
 
 OF ISSUA- 
 BI^ PLEAS. 
 
 In framing a special plea it is also necessary to consider whether the 
 defendant is under terms of pleading issuably. An issuable plea is a plea 
 in chief to the merits, upon which the plaintiff may take issue and go to 
 [. *511 ] trial Qy') ;^n a general demurrer for some defect in *substance (z) (1). 
 A plea in abatement is not an issuable plea (a) (2), nor a plea of alien ene- 
 my (6), nor an untrue plea of judgment recovered (c) ; nor can a special 
 demurrer be pleaded if the defendant be bound to plead issuably, although 
 the causes assigned be well founded, and, it seems, although they be mat- 
 ter of substance {d). But a true plea that a bail bond was taken for ease 
 and favor (e), and a tender (/), and the statute of limitations (g')(3), are 
 issuable pleas. So, where the. defendant in an action on a recognizance! 
 of bail under a judge's order to plea issuably, pleaded nul tiel record, and 
 that no cfl. sa. was issued against the principal, *the court of C. P. held 
 that such pleas might be considered issuable, and that the plaintiff could 
 not sign judgment as for want of a plea (A). And if a plea be in sub- 
 stance a fair issuable plea to the merits, the mere circumstance of its be- 
 ing informal will not render it a nullity (i). Where the replication does 
 not tender a fair issue, but affords reasonable and good cause of demur- 
 rer, the defendant, though under terms of pleading issuably, may, it 
 seems, in the Common Pleas, demur even specially to such replication ; 
 for a reasonable and fair demurrer to the replication, even for want of 
 form only, is not in that Court a contravention of the terms of pleading 
 issuably (Ji) . But it seems that the court of King's Bench considers that 
 these terms extend to the subsequent pleadings, and forbid a speciM de- 
 mur,rer to the replication (/). When the defendant, being under the 
 
 (i) Tidd, 9th ed. 973, 874. Us, Tidd, 9th ed. 471, and note (n). 
 
 ly) 7 T. R. 530; 2 Burr. 782; Tidd 9th ed. (d) 1 Bing. 530; 8 Moore, 427, S. C; see 
 
 471. Thedefendant is usually putupon terms 7 T. R. 530; 6 D. & R. 620; sed vide 1 Chit, 
 
 of pleading issuably when he . obtains time to R. 711. 
 
 plead. («) 1 Burr. 605. 
 
 («) 3 Burr. 1788; 2 B. & P. 446; Tidd, (/) 1 Burr. 59; 1 Hen. Bla. 369. 
 
 9th ed. 472; 8 Moore, 379; 1 Chit. R. 711. (§•) 3 T. R. 124; 1 B. & P. 228; Tidd, 9th 
 
 Where the defendant was advised he had a ed. 471. 
 
 substantial ground of demurrer, the court set (ft) 1 Moore, 430. 
 
 aside.the judgment signed for want of a plea, (i) Rep. Temp. Hardw. 179; 5 T. R. 152. 
 
 upon terms, 7 T. R. 530; 1 East, 414, ». (k) i Bing. 267; Betts v. Applegarth, C. 
 
 S, C. P- Trinity Term, 1822; Gude, • attorney for 
 
 (a> 1 Burr. 59; Barnes, 268. the plaintiff; Mg.; see further, Gisborue v. 
 
 (b) 8T R. 71. Wyatt, 3 Dowl. 505. 
 
 (e) 1 Bla. Rep. 876; 2 Wils. 117; 3 Id. (1) 6 D. & R. 620; sed vide Tidd, 6th ed. 
 
 38; 1 Moore, 431; 2 Chit. Rep. 292. Nor .472; 2 Stra. 1185, 1186; 3 Burr. 1789; 2 
 
 any other plea which docs not go to the mer- Bla. Rep. 923; 8 Dowl. 505, S. P. 
 
 (1) Vide Syme v- Griffin, 4 Hen. & Mun, 277. 
 
 (2) So, a plea of another action pending is not an issuable plea. Davis v. Grainger, 3 
 Johns. 269. 
 
 (8) Tomlin v. How, Gilmer, 11, Contra. 
 
pibst: before the recent rules. 511 
 
 « 
 
 ^ teems of pleading issuably, pleads a sham plea (m) ; or demurs for -w^nt of bsua- 
 of form,_or, at least in the Common Pleas, specially for want of sub- =^^"^^8- 
 stance ; judgment may be signed (w) (4). When several pleas are plead- 
 ed, one of which is not issuable, it will vitiate all the others (o), and 
 where the defendant being under an order to plead issuably puts in a 
 sham- demurrer to some of the counts, and pleads issuably to the rest, 
 judgment by nil dicet as to the whole may be signed (p). Where, how- 
 ever, it is doubtful whether the plea bg issuable, the safer course in terra 
 time *is to move the court to set it aside (if) ; and where the defendant [ *512 ] 
 has been ruled to abide by his plea, it cannot afterwards be treated as a 
 nullity. 
 
 I. OF THE SEVERAL PLEAS. — SECONDLY, SINCE THE RECENT RULES. 
 
 Having thus endeavored to show the practice as to pleas before the 
 modern improvements, and to which it will continue to be essential fre- 
 quently to refer, we will now state the principal of such improvements. 
 
 Before the 2 & 3 W. 4, c. 71, s. 5, f although plaintiffs were allowed statements 
 to declare generally in actions on the case, stating that by reason of their °^ ^"." 
 possession of a messuage or other coporeal tenement, they were entitled ^righu^L a 
 to a right of common or of way^ &c., without showing the origin of the pl«a. &e' 
 right or any derivative title (r) ; yet in other pleadings, particularly in 3°^®""/ ^ 
 trespass and replevin, it was essential to justify or claim under some own- 71 g, 5. " 
 er in fee, and then to state the derivative title, however difficult and 
 prolix (s). The above' statute enacts, " that in all pleadings to actions 
 of trespass, and in all other pleadings wherein, before the passing of that 
 act, it would have been necessary to allege the right (^scilicet of common 
 or other profit a prendre, or of way or otker easement or the use of lights,) 
 to have existed from time immemorial, it shall be sufficient to allege the 
 enjoyment thereof as of right by the occupiers of the tenement in respect 
 whereof the same is claimed for and during such of the periods mentioned 
 in that act as may be applicable to the case, and without claiming in the. 
 • name or right of thejowner in fee, as was before usually done ; and if the 
 other party shall intend to rely on any proviso, exception, incapacity, dis- 
 ability, contract, agreement, or matter therein before mentioned, or any 
 cause or matter of fact or of law not inconsistent with the simple fact of 
 enjoyment, the same shall be specially alleged and set forth in answer to 
 the allegation of the party claiming, and shall fiot be received in evidence 
 on any general traverse or denial of such allegation." This enactment 
 has introduced a more concise mode of claiming rights of this nature.(^) 
 
 . But by far the most important modern improvements are those iniro- Reg. Gen. 
 'duced by the Reg. Gen. Hil. T. 4, W. 4, f which puts an end to the mis- HU. T. 4 
 application and abuse of the general issue, and compels a defendant *in S," ^:. 
 terms to deny particular parts of the declaration, and to plead specially in particu- 
 lar actions. 
 Cm) Aa to sham pleas, see post. Rep. 865 a. r ^|n■^ n -1 
 
 (n) Tidd, 9th ed. 472; 1 Bing. 373. (r) ^Sntet 381. L "■'■'' J 
 
 (0) 3 T. R: 305. («) .dnte, 881. 
 
 (p) 1 East, 411. (0 See forms in Bosanquet's Rules, 117, 
 
 (g) 1 Burr. 59; 2 T. R. 390; 7 Id. 539; 118, 125, 126, and post, vol. iu. 
 Tidd, 9th edit. 472; 4 Taunt. 668; 1 Chit. 
 
 (1) Sawtell V. Gillard, 5 Dowl. & Ryl. 420. 
 t See American Editor's Preface. 
 
613 
 
 OP THE SEVERAL PLEAS. 
 
 I. IN 
 
 SUMFSII, 
 
 ■*9- every matter of defence not merely consisting of denial of the allegations 
 "'' in the declaration. The most convenient course will be, to print the rules 
 verbatim in the context, and to state the decision in notes(M). 
 
 Beg. Gen. 
 Hil. T. 4 
 AV. 4. 
 pleadings 
 in particu- 
 lar actions 
 (I). 
 
 1. Plea of 
 non-as- 
 sumpsit to 
 put in issue 
 only ex- 
 press con- 
 tract or 
 the facts 
 from which 
 contract 
 implied, 
 and not, 
 &c. 
 
 [ *514 j 
 
 I. Pleas in Assumpsit in Particular. f 
 
 II. In Covenant and Debt. 
 
 III. In Detinue. 
 
 IV. In Case. 
 
 V. In trespass. ' 
 I. Assumpsit. 
 
 " I. In all actions of assumpsit, (except on bills of exchange and pro- 
 missory notes,) the plea of non assumpsit shall operate only as denial in 
 fact of the express contract or promise alleged (j*), or *the matters of 
 fact from which the contract or promise alleged may be implied by law 
 
 (a) See also the precedents of Pleas and 
 notes in 3 Chitty on Pleading, 6th edit, per 
 tot. 
 
 (x) See further as to the cases when or 
 not the general issue is pleadable, 8 Chit. 
 Gen. Prac. 723 to 737, and Mr. Koscoe's 
 Occasional Tracts, No. 1, as to the General 
 Issue, a summary writing with the perspi- 
 cuity observable in all the works of that able . 
 author. 
 
 (y) Non Assumpsit. — This plea naturally 
 puts in issue the contract or promise as stated 
 in the declaration, and enables a defendant 
 to insist that he never in fact contracted ai 
 all and also that he did not contract in the 
 manner stated in the declaration, and thus to 
 take advantage of any material variance, 
 Neale v. M'Kenzie, 2 Crom. M. & Eos. 67; 
 also of the nonjoinder of a person who ought 
 to have been a co-plaintiff, which is a ground 
 of nonsuit in respect of the variance. So 
 under non assumpsit, the defendant may show 
 that the contract was conditional, and part not 
 performed by plaintiff, where he had declared 
 on the contract as having been absolute. Al- 
 exander V. Gardner ; 5 Moore & Scott, 281 ; 1 
 Bing. N. S. 671; 8 Ddwl. 146, S. C. . 
 
 So, although a plea of non assumpsit in 
 terms seems merely to deny the /)rom»se and 
 not the debt in respect of which the promise 
 to pay was actually made or implied ; yet by 
 the terms of the above rule the plea in thS 
 case of an indebitatus count puts in issue all 
 the facts essential to establish a present debt ; 
 although in case of a special count it would 
 be otherwise. In the latest case, Cousen v 
 Patten, 2 Crom. & Ros. 547, it was held that 
 under non assumpsit to an indebitatus as. 
 sumpsit count for goods sold and detivefed or 
 for work and labor done, the defendant may 
 prove that the goods delivered were not such 
 as were contracted for, or that the work was 
 done in an unworkmanlike manner, although 
 there was a special contract to pay for the 
 goods or work at a certain price, and the 
 plaintiff can recover only on the quantum 
 meruit; and see further as to work done< 
 
 Cooper V. Whitehouse, 6 Car. & P. 545; Eof- 
 fey D. Smith, id. 547, 662; Turban v. Warren, 
 1 Tyr. & Gr. 153. 
 
 In Bradley v. Milnes, 1 Bing. N. C. 644, to 
 indebitatus assumpsit for work and labor and 
 materials defendant pleaded specially that the 
 work and materials should be to the satisfaction 
 of the defendant or his surveyor ; and that the 
 building had not been completed to the satisfac- 
 tion of defendant orhis surveyor ; and a replica- 
 ton unnecessarily in the conjunctive was proved 
 by evidence that defendant was satisfied. 
 
 And when to indebitatus- assumpsit for 
 work and labor, the defendant pleaded that the 
 work was done in endeavoring to prevent a 
 chimney from smoking and on the terms that 
 the plaintiff should not be paid unless he pre- 
 vented it from smoking, and that he had not 
 prevented it, the plea was held bad on spe- 
 cial demurrer, as amounting to' the general 
 issue. Heyselden v. Staff, 5 A. & E. 158. 
 In an action by an attorney for work and labor, 
 the defendant, under a plea of th# general 
 issue to the whole, demand except a certain 
 sum paid into court, may prove that the bu- 
 siness in respect of which the action was 
 brought, was done in a cause, upon the terms 
 that in the event of failure in the cause, the 
 plaintiff should make no charge except costs 
 out of pocket, and that these did not exceed 
 the amount paid into court. Jones v. Reade, 
 5 A. & E. 529; 1 N. & P. 12; 5 Dowl. 216, S. 
 C. The defendant may in an action for work 
 shew that it was done in an unworkmanlike 
 manner; Cousiiis V. "Paddock, 2 Cr. M. & R. . 
 547. Which although it may not defeat 
 the plaintiff's claim altogether, will only en- 
 title him to recover the real value of his 
 labors, Chapel v. Hicks, 2 C. & M. 214. And 
 the same rule applies to an action for the value 
 of personal services as a clerk, &c., Bailey v 
 Kell. 4 Bing. N. C. 688. Negligence by an 
 attorney is an admissible defence under non- 
 assumpsit to an action on his bill, provided 
 the wojk becomes wholly useless in conse- 
 quence of that negligence; Bracey v. Carter, 
 12 A. & E. 373; RandaU v. Ikey,4 DbwI. 682; 
 
first: before the recent rules. 
 
 514 
 
 (sr). " Ex. gr. In an action on a warranty (A), the plea will operate ^ 
 as a denial of the fact of the warranty having been given upon the al- ■^^''"'"*" 
 leged consideration, but not of the breach ; and in action on a policy of 
 insurance (B), of, the subscription to the alleged policy by the defendant, 
 
 and a special plea in such a case would be bad 
 ■ as amounting to the general issue. Hill v. 
 Allen, 2 M. & W. 283. The defendant may 
 also under the general issue, shew the exist- 
 ence of a special contract, with conditions not 
 complied with by the defendant ; See Alexan- 
 der V. Gardner, 5 M. & Scott, ii\ ; 1 Eing, 
 N. C. 671; 3 Dowl. 146, S. C; Kemble ». 
 Mills, 1 M. & 6. 757, or containing such, 
 terms as under the circumstances defeat the 
 plaintiff 's claim altogether. Where a person 
 is employed to do certain work for a certain 
 sum, and part of the work is afterwards 
 done by the employer, the amount of the latter 
 work is matter of deduction, which may be 
 proved under the general issue. Turner v. Di- 
 aper, 2 M. & G. 241. The observations as to 
 the effect of non assumpsit to a count for 
 goods, where the credit has not expired will of 
 course be applicable to the case of work and 
 labor. 
 
 To an indebitatus assumpsit count for goods 
 sold, thcdefendant may, under non assumpsit, 
 prove that the agreed credit had not elapsed 
 at the date of the writ, Taylor i). Hillary, 1 
 Crom. Mee. & Ros. 741; 1 Gale, 22; 3 Dowl. 
 461, S. C. overruling Edmunds v. Harris, 4 
 Nev. & Man. 182; 6 Car. &. P. 745. But ac- 
 cording to Knapp V. Harden, 1 Gale, 47; 6 
 Car. & P. 745, S. C. it is safer lo plead spe- 
 cially that the time of credit has not expired. 
 In Taylor v. Hillary, 1 Gale, 23, Parke, B. 
 thought that non assumpsit was su£Scient; 
 because if the credit had not expired, the 
 contract declared on, describing the defendant 
 as already indebted in prsesenti, was not 
 proved. 
 
 This rnle also in effect puts in issue the 
 sufficiency of the stamp, when a written con- 
 tract must be proved, and a stamp is essential ; 
 because the 28 G. 3, c. 58, s. 12 not only enacts 
 that the agreement, unless duly stamped, shall 
 be unavailable, but further, that it shall not be 
 admissible in evidence ; so that the plaintiff 
 cannot prove the allegation that it was made, 
 if it be unstamped. If the question depend 
 on the preceding words, then it might have 
 been neeiessary to plead specially the want of 
 a stamp as rendering the agreement void in 
 point of law; but the latter words in the 
 stamp act seem clearly to render the objection 
 available under a plea of non assumpsit, or 
 non est factum, or a plea rendering it neces- 
 sary to prove the contract declared upon. 
 However, the defendant may plead specially 
 that the contract was not duly stamped. See 
 forms of pleas of the want of a proper stamp, 
 Bosanquet's Rules, 105; Chitty, jun. on 
 Pleading, 258; post, vol. iii. 
 
 (z) Or of ike matters of fact from which 
 the contract or promise alleged may be impli- 
 ed by law. In the instance of an indebitatus 
 
 Vol. I. 68 
 
 assumpsit, where the promise is usually pre- 
 sumed from the fact of the defendant being in', 
 debted, as previously alleged, this seems to 
 put in issue whatever would in fact, and not 
 merely as a matter of law, negative the pre- 
 existing debt; which constitutes the premises 
 or consideration from which the alleged prom- 
 ise is to be inferred. Hence, Parke, B. , in 3 
 Dowl. 627, observed that there is no longer 
 any general issue in assumpsit. 
 
 (A) Warranty. Where in an action for 
 the breach of a warranty of a mare, the de- 
 fendant pleaded that the mare was sent to a 
 
 . repository for the sale of horses, and sold 
 subject to certain rules agreed to by the parties, 
 which were that " the warranty of soundness 
 should remain in force until noon of the day 
 after the sale, when it would be complete and 
 the responsibility of the seller terminate,- un- 
 less in the meantime, a notice and certificate of 
 unsoundness were given," and that such no- 
 tice and certificate were not given within the 
 time limited, it was held that the fivots were 
 properly made the subject of a special plea, as 
 admitting the contnict and the promise, but 
 showing it to have been made the subject to 
 certain rules,which had hot been complied with. 
 Smart v. Hyde, 8 M. & W. 723; 1 DowL N. S; 
 60, S. C, 
 
 (B) Insurance. In an action on a policy 
 of insurance, where the declaration stated 
 that the plaintiff caused a policy of assurance 
 to be effected with the defendants on 360 bales 
 of cotton, lost or not lost, whereby B. & Co.. 
 as well in their own name as in that of all 
 other parties interested, were assured in £2000, 
 and in consideration thereof and that the plain- 
 tiff paid the defendants the premium, the de- 
 fendants promised that they would become as- 
 surers to the plaintiff of the said sum of £2000, 
 
 'that the plaintiff was interested in the goods 
 during the voyage and that the assurance was 
 made for his use and benefit and on his ac- 
 count, and that the goods were damaged by 
 the perils of the sea during the voyage ; and 
 the defendants pleaded that the policy was 
 not caused to be made by or on behalf of the 
 plaintiff, modo et forma, and also as a sepa- 
 rate defence that the plaintiff did not pay 
 the premium or promise the defendants to 
 observe the forms of the policy; these pleas 
 were held' bad, as amounting to the general 
 issue. Sutherland v. Pratt, 2 Dowl. N. S. 
 813. Parke, B. in delivering the judgment 
 of the Court, said, " An action on the poli- 
 cy is mentioned in the pleading rules only 
 as an example illustrating the general rule 
 previously given, the object of which gen- 
 eral rule is, to confine the operations of the 
 plea of non assumpsit, which h(id before 
 operated as a denial of all the facts and the . 
 liabilities at the time the action was broaght 
 
514a 
 
 / 
 
 OF THE 8EVEBAL PLEAS. 
 
 I- ™ but not of the interest of the commencement of the risk, of the loss, or 
 ASSUMPSIT. jj£ ^j^g alleged compliance with warranties. 
 
 Inactions "In actions against carriers and other bailees (A), for not delivering or 
 against ^^^ keeping goods safe, or not returning them on request, and in actions 
 bailees not against agents for not accounting, the plea will operate as a denial of any 
 of breach, express contract to the effect alleged in the declaration, and qf such bail- 
 ment or employment as would raise a promise in law to the effect alleged, 
 but not of the breach. 
 
 In indebi- 
 tatus as- 
 sumpsit tor 
 goods sold 
 or money 
 received, 
 
 71071 as< 
 tumpsit to 
 pnt in is- 
 sae only 
 sale and 
 delivery, 
 and receipt 
 of money to 
 nse of 
 plaintiff. 
 
 [ *615 ] 
 
 " In an action of indebitatus assumpsit for goods sold and delivered, 
 the plea of non assumpsit will operate as a denial of the sale and delivery 
 in point of fact (z) ; in the like actions for money had and 'received (B), 
 
 to a denial of the contract, express or im- 
 plied, alleged in the declaration. Every such 
 contract imports that there are two parties to 
 it and a denial of the contract alleged is a de- 
 nial of a contract with the plaintiff. Consid- 
 ering the example therefore, as merely illus- 
 trating the rule, we think it clear that in an 
 action on the policy, the plea of non assump- 
 sit, denying that the defendant ever contracted 
 by such a policy with the plaintiff ' puts in 
 issue the fact that the plaintiff caused the pol- 
 icy to be made," and the first plea was 
 therefore held bad. For the same reason the 
 other plea was held bad also ; all the facts put 
 in issue by it were only parts of one proposi- 
 tion, that is, that the defendants contracted 
 with the plaintiff and could not have been put 
 in issue by non assumpsit. Southerland v. 
 Prattj 2 Dowl. N. S. 824. ' 
 
 (A) Carriers and other bailees. It has 
 been held that in action against a carrier for 
 the loss of a parcel, the defendant cannot un- 
 der non assumpsit avail himself of the fact 
 that the parcel was above £10 in value, and 
 that as notice of its value was given in com- 
 pliance with the statute 11 Gi 4, and 1 W. 4, 
 c. 68. lijnesw. Chaplin, 5 A. & E. 634; 6 
 Bowl. 429j S. C. But a plea to a similar ac- 
 tion, that when the defendant received the 
 goods, an express condition and agreement was 
 made between him and the plaintiff, that the 
 plaintiff should accompany the cart, and watch 
 and protect the goods from being lost or stolen, 
 but that he neglected and refused so to do, by 
 reason whereof and not by reason of any neg- 
 ligence of the defendant, the goods were lostj 
 was held bad on special demurrer, as amount- 
 ing to the general issue. Brind v. Dale, 2 M. 
 & W. 775. 
 
 («) See ante, 613 a note (x) ; Bosanquet's 
 Bnles, 48, note 46. In Edmunds v. Harris, 4 
 Nev. & Man. 182; 6 Car. & P. 547, it was 
 held that to indebitatus assumpsit for goods 
 sold or work done, defendant must plead spe- 
 cially that the credit had not elapsed ; but in 
 Taylor v. Hillary, 1 Gale, 23; 3 Dowl. 461; 1 
 Cromp. M. & Ros. 641, S. C, Mr. Baron Parke 
 said, " doubts have been expressed with regard 
 to the decision in Edmunds v. Harris. If the 
 time of credit has not expired, the plaintiff 
 
 proves a different contract from that stated in 
 the declaration, viz. to pay on request;" and 
 see Knapp v. Harden, 1 Gale, 47; 6 Car. & 
 P. 745, S. C; and in Gardner v. Alexander, 3 
 Dowl. 146, the propriety of that decision was 
 also doubted. So it has been supposed that to 
 assumpsit for goo9s sold or work done, defend- 
 ant must plead specially that the goods were 
 of bad quality, or that the work was improper, 
 so as to reduce the claim , Cooper v. White- 
 home, 6 Car. & P. 545; Roffey r. Smith, 6 
 Car. & P. 662; but as the allegation in the 
 declaration indebitatus assumptil affirms that 
 there is already an existing debt for goods sold 
 or work done, whatever shows that there was 
 no such debt, as that the goods or work were 
 insufficient, or the credit not expired, directly 
 negatives such allegation, and should therefore 
 be admissible without a special plea. Howev- 
 er, the safest course will be to plead specially, 
 as in Enapp v. Harden, 1 Gale, 47; 6 Car. & 
 P. 745, S. C. 
 
 (B) Money received. In indebitatus as- 
 sumpsit for money had and received, the plea 
 of non assumpsit will operate as a denial both 
 of the receipt of the money and of th% exist- 
 ence of those facts which make such receipt 
 , by the defendant a receipt to the use of the 
 plaintiff; and therefore where the defendant, 
 in an action of this nature, pleaded that the 
 money was the proceeds of goods pledged to 
 the defendant, by persons who' were allowed by 
 the plaintiff to hold the goods as their own, 
 but which in fact were the goods of the plain- 
 tiff and of those persons jointly, and that the 
 defendant not knowing that the plaintiff had 
 any interest in the goods, advanced unmey to 
 those third persons, and sold the goods under 
 a power for that purpose to repay himself; it 
 was held that the plea amounted to the general 
 issue, for it denied the plaintiff's sole right to 
 the money said to be received to his use. Sol- 
 ly «. Neish, 2 C. M. & H. 865; 5 Tyr. 626, 
 8. C. See also Moore v. Eddowes, 7 C. & P. 
 203. 
 
 Money lent. Where the plaintiff's claim is 
 for money lent, the general issue will compel 
 him to prove the loan of the money and that 
 it was advanced at the defendant's request, 
 but if there were any illegality in the contract^ 
 
FIRST: BEFORE THE RECENT RULES. 
 
 516 
 
 it will operate as a denial both of the receipt of the moaey, and the ex- 
 istence of those facts which make such receipt by the defendant a receipt 
 to the use of the plaintiff. 
 
 " 2. In all actions upon bills of exchange and promissory notes, the plea 
 
 I. IN 
 
 ASSUMPSIT. 
 
 either on account of usury, gaming or other- 
 wise, aind this be relied on as a defence it must 
 be specially pleaded. Where in an action for 
 money lent and paid, the defendant pleaded 
 that the sums lent' and paid were lent for the 
 purpose of paying J. R. for the repairs of a 
 vessel and not on the security or liability of 
 the defendant, and that a bottomry bond was 
 given to the plaintiJF, whereby the vessel, 
 freight and cargo became responsible for the 
 sum lent and advanced by the plaintiff, it was 
 admitted that the plea would have been bad 
 on special demurrer, as amounting to the 
 ge oral issue Regil v. Green, 1 M. & W. 
 328. 
 
 Money paid. The plea of non assumpsit 
 to an action for money paid, will render it 
 necessary for the plaintiff to prove on the trial 
 the payment of the money, either at the ex- 
 press or implied request of the defendant; but 
 if the money were applied to any illegal pur- 
 pose, or the contract be void either by statute 
 , or common law, it will be necessary to plead 
 this fact specially, in order to have the benefit 
 of it as a defence to the action. Where in ac- 
 tion of assumpsit for money paid, the defend- 
 ants pleaded as to £500 parcel, &c. thit they 
 were possessed of a bill of exchange drawn by' 
 them and accepted by a third party, payable 
 six months after date, and that in considera- 
 tion that the defendants, as a security for the 
 re-payment of the £-500, would indorse the 
 bill to the plaintiffs, the plaintiff promised to 
 pay £500 to the defendants' use, and then 
 averred the indorsement of the bill pursuant 
 to the agreement, and that the sum of £500 
 claimed by the plaiatifEs was made up of pay- 
 ments made on accfunt of the bill, but did hot 
 allege that the bill was due, the plea was held 
 bad on the ground, that it shewed , that the 
 £500 was not payable on request as alleged to 
 the declaration, and therefore amounted to the 
 general issue. Maude v. Nesham, 3 M. & W. 
 502. So where the defendant pleaded that the 
 money was paid by the plaintiff as a share of 
 damages and costs recovered against the plain- 
 tiff asuowner of a vessel of which the defend- 
 ant was a part owner, for the loss of goods, 
 and which .loss was alleged in the action to 
 have hap|)ened through the negligence of the 
 plaintiff by his mariners and servants, where- 
 as the plaintiff by his own personal and wilful 
 ittisBonduct contributed to the loss; and the . 
 defendant also pleaded that he did not concur 
 in the employment of the vessel in that voy- 
 age, but that it was undertaken without the 
 defendant being concerned or in any way par- 
 ticipating in the adventure ; on special demur- 
 rer it was held that both pleas were bad, as 
 amounting to the general issue. Gregory v. 
 Harlhol, 1 M. & W. 183. Where the money 
 
 paid has failed in its object, and the defendant 
 has received no benefit from it through the 
 default of the plaintiff, such a defence is not 
 the subject of a special plea, but is either ad- 
 raiasible under the general issue or ground for 
 a cross action. Francis v. Baker, 10 A. & E. 
 642. 
 
 Account stated. In indebitatus assumpsit 
 on an account stated, the defendant under non 
 assumpsit may show, that accounts between 
 the plaintiff and himself, the correctness of 
 which he had admitted, were in fact, incor- 
 rect; since the issue in such a case is not sim- 
 ply whether there was an account stated,, but 
 whether the defendant was indebted on an ac- 
 count stated or not. Thomas «. Hawkes, 8 M. 
 & W. 140. It had however been previously 
 held that if the defendant wishes to rtely on a 
 subsequent account in his favor, he must pleaid 
 that fact specially, and cannof give it in evi- 
 dence under non assumpsit. Fidgett v. Perry, 
 1 C. M. & R. 108; 2 Dowl. 714. 
 
 Use and occupation. Where the plaintiff 's 
 claim is in respect of the use and occupation 
 of premises, the defendant, under non assump- 
 sit, may show that the plaintiff had mortgaged 
 the premises before the defendant came into 
 occupation, and that the mortgagee hS3 given 
 notice to the jiefendant not to pay to the plain- 
 tiff any rent, becoming due after such notice 
 but the defendant cannot, under that plea, give 
 evidence of a notice to pay rent due before 
 such notice, the ground for this distinction be- 
 ing that from the moment the mortgagee gives 
 notice to the defendant, the future rents are to 
 be paid to himself, the defendant ceases to oc- 
 cupy by .the permission and sufferance of the 
 mortgagor, and the subsequent holding is by 
 permission of the mortgagee, and such holding 
 by permission of the niortgagee is not a oout 
 fess^on and avoidance that he held by permis- 
 sion of the mortgagor during the same time 
 for which the rent became due, but an allegal- 
 tion inconsistent therewith, and amounting tb 
 a denial of it: on the other }iand, the samfe . 
 construction of the rule and pleading does not 
 apply to arrears already due, for as to those 
 arrears, the occupation had already taken 
 place, and such occupation was in fact, by the 
 sufferance and permission of the plaintiff; the 
 evidence of the notice does not amount to a de- 
 nial of the allegation that the Occupation was 
 by the plaintiff 's permission, but to a confes- 
 sion and avoidance only. Waddillore v. Bar- 
 nett, 2 Bing. N. C. 538.- In this action also 
 the defendant may under the general issue, 
 give in evidence that the premises were unin- 
 habitable by reason of a nuisance; Smith v. 
 Marrable, 2 Dowl. N. C. 810. And he may 
 show under this plea, that the premises nnder 
 a demise, at a certain rent payable at Rtatec). 
 
 2. JVon as- 
 sumpsit 
 Inadmissi- 
 ble in ac- 
 tion on bill 
 or note but 
 defendant 
 must trav- 
 erse in 
 particular 
 the draw- 
 ing, mak- 
 ing, in- 
 dorsing, 
 accepting., 
 presenting, 
 or notice of 
 dishonor, 
 
615a 
 
 OF THE SEVERAL PLBA3. 
 
 I. IN 
 
 ASSUMPSIT ^^ 1^0^ assumpsit shall be inadmissable (A). In such actions, therefore, 
 ■ a plea in denial must traverse some matter of fact, e. g-., the drawing or 
 making, or indorsing, or accepting, or presenting, or notice of dishonor of 
 the bill or note (a). 
 
 8. Matters 
 in confes- 
 sion and 
 avoidance 
 and in dis- 
 charge and 
 defences in 
 law, to be 
 pleaded 
 particu- 
 larly, as 
 infancy, 
 covertare, 
 release, 
 payment, 
 perform- 
 ance, il- 
 legality 
 of consid' 
 oration, 
 &c. 
 
 3. In every species of assumpsit, all matters in confession and avoid- 
 ance (6), including not only those by way of discharge, but those which 
 show the transaction to be either void or voidable in point of law, on the 
 
 periods, and that before the rent became due 
 the plaintiff evicted him from the possession. 
 Prentice v. Elliot, 5 M. & W. 606. 
 
 (A) Pleua to bills and notes. In an action 
 by the indorsee, of a bill of exchange against 
 the acceptor, the defendant may under a plea 
 of non accepit take advantage of an alteration 
 in the bill after acceptance, in respect of date 
 or mode of acceptance, whether tlie declara- 
 tion describe the bill in its original or altered 
 form. The defendant in that plea says, in 
 substance, "The instrument on which you 
 claim against me, I never accepted." It can- 
 not be said to be the same instrument, if there 
 has been any alteration. Cock v. Coxwell, 
 2 C. M. & R. 291; Calvert v. Baker, 4 M. 
 & W. 417; 7 'Dowl. 17, S. C. The altera- 
 tion may, however, be the subject of a spe- 
 cial plea. Laughton v. Lazarus, 5 M. & 
 W. 629; Hemming v. Trenery, 9 A. & E. 
 926, 
 
 fiut in an action by an indorsee against the 
 indorser of a bill of exchange under pleas de- 
 nying the indorsements, presentment and due 
 potice pf dishonor, and alleging want of con- 
 sideration, the plaintiff is not bound to explain 
 an alteration appearing in the date, as the 
 making of the bill is admitted upon the record. 
 Sibley v. Fisher, 2 N. & P. 430. To a declar- 
 ation by an executor on a promissory note 
 given to the testator, and averring a promise 
 to the plaintiff as executor, the defendant 
 pleaded as to the supposed promise alleged to 
 have made to the plaintiff as executor, non as- 
 sumpsit, and it was held that this was a good 
 plea, as the promise to pay the executor was 
 not a promise implied by law, and there must 
 have been an express promise proved to sup- 
 port the declaration. Timmis v. Piatt, 2 M. 
 & W. 720. The rule prohibiting the plea of 
 non assumpsit is confined to cases where the 
 action is only on the note, and on the promise 
 to pay contained in or implied by law from it; 
 it is to be read as if it were worded thus — "in 
 all actions on bills of exchange, and promis- 
 sory notes simpliciter, without any other mat- 
 ter." Per Parke, B. 2 M. & W. 721, 722. 
 But where in an action by the indorsee of a 
 promissory note against the maker, the declar- 
 ation, not alleging any promise by the defend- 
 ant to the plaintiff, contained a count, on an 
 account stated on a day long after the note be- 
 came due, and a general promise by the de- 
 fendant on that day to pay the " said several 
 moneys," it was held, that this was an action 
 on the note within the meaningof the rule, and 
 that the plea of non assumpsit was inadmissi- 
 
 ble. Don.aldson v. Thompson, 6 M. & W. 316 ; 
 8 Dowl. 209, S. C. 
 
 The sufficiency of the stamp on a promissory 
 note or bill of exchange is put in issue by a 
 plea denying the making or acceptance of the 
 note or bill, and a plea that it was not duly 
 stamped is bad. Howard v. Smith, 4 Bing. N. 
 C. 684 ; 6 Scott, 438, S. C. ; and in an action 
 on a bill of exchange by the indorsee against 
 acceptor, the Court struck out a plea founded 
 on the 3 & 4 W. 4, c. 97, s. 17, that the bill 
 was written on paper improperly stamped with 
 an old dye, on the ground that the defence was 
 admissible under tlie plea denying the accept- 
 ance. Dawson v. Macdonald, 2 M. & W. ii6. 
 So in an action on a banker's check, the ob- 
 jections that it was post dated or issued more 
 than ten miles from the bank, and therefore 
 not exempt from the stamp laws, are available 
 under a plea denying the drawing of the check. 
 Field V. Woods, 7 A. & E. 114; 2 N. & P. 117; 
 Jenkins v. Creech, 5 Dowl. 293; M'Dowell v. 
 Lyster, 2 M. & W. 52, S. P. 
 
 If the defendant in contravention of the 
 rule, pleads non assumpsit or nnnquam indeb- 
 itatus, the plaintiff may sign judgment as for 
 want of a plea, and if the declaration contain 
 counts on the consideration of the bill or note, 
 and the defendant pleads the general issue to 
 the whole, the plaintiff may sign judgment on 
 the count for the bill or note and enter a nolle 
 prosequi as to the other counts. Frazer ». New- 
 ton, 8 Dowl. 773 ; Sewell v. Dale, 8 Dowl. 309. 
 
 (a) If it be apprehended that the stamp on 
 the bill was insufficient, there should, at all 
 events, be a plea denying the making of the 
 bill, Bosanquet's rules, 47, note 45, or a plea 
 that it was not sufficiently stamped. See form, 
 Bosanquet's Bules, 105, for otherwise the suf- 
 ficiency of the stamp will not be an issue, Bo- 
 sanquet's Rules, 47, note 45. 
 
 {b) '^All matters in confession and avoid- 
 ance, including, SfC. shall be specially plead- 
 ed." — To an indebitatus assumpsit on an ac- 
 count stated, if the defendant wish to rely on 
 a subsequent account in his favor, he must 
 plead this specially, and cannot give the same 
 in evidence under the general issue, Fidgett v. 
 Penny, 1 Crom. M. & Ros. 108; 2 Dowl. 714, 
 S. C. ; and see Taylor v. Hillary, 1 Gale, 22. 
 So a defendant must plead specially that after 
 the guarantee declared on, he and the plaintiff 
 entered into a different contract of guarantee, 
 and thereby discharged defendant from liabil- 
 ity to perform that declared upon, and must 
 aver that such agreement was in writing, Tay- 
 lor V. Hillary, 1 dale, 22; 3 Dowl. 461; 1 
 
FIRST: BEFORE THE RECENT RULES. 
 
 »516 
 
 ground o^ fraud {c) or otherwise, b\i&\\ be specially pleaded (rf). Ex. gr. 
 Infancy (e), coverture, release, *payment (/), want of consideration. 
 
 Crom. M. & Ros. 741. Plea to indebitatus 
 assumpsit for goods sold, tliat defendant ac- 
 cepted a bill which plaintiff indorsed to a hold- 
 er, kc.., Atkinson i>. Handon, 1 Har. & WoU. 
 77. So a plea of gaming consideration, where 
 there has been a renewed bill or note, must 
 be pleaded to the first bill or note, Boulton 
 V. Coghlan, 1 Bing. N. C. 640. So a sub- 
 stituted guaranteee or agreement in lieu of 
 first, 1 Gale, 23, 47, 48; 3 Bowl. 641; 5 Bing. 
 873. 
 
 (c) " Void or voidable in point of law on 
 ground of fraud or, Sfc." — Thus to an action 
 on a sale by auction puflSng must be plead- 
 ed specially, Iceley v.- Crew, 6 Car. & P. 671. 
 How to plead fraud in obtaining a bill, see 1 
 Hodges, 66; 1 Bing. N. C. 460; 2 Crom. M. & 
 Ros. 59. 
 
 (dy "Or otherwise shall be specially plead- 
 ed." — Even before the Reg. Gen. Hil. T. 4 W. 
 
 4, defendant might plead specially that the 
 contract was not in writing according to the 
 statute against frauds, 29 Car. 2, o. 3, s. 4 and 
 17; 1 Wils. 305; 4 B.-& AM. 295; 1 Moore 
 & P. 294, 308; 4 Bing. 470, S. C. ; but see 11 
 Price, 494. So a surety might have pleaded 
 that he had signed no undertaking in writing, 
 see a plea held good, 2 Dow. & Clark, 211. 
 And now such defence must be pleaded, and 
 see form of plea and replication, Hawes v. 
 Armstrong, 1 Bing. N. C. 763 ; Clancey v. Pig- 
 gott, 1 Harr. & Woll. 20; 4 Nev. & Man. 469, 
 
 5. C. So in assumpsit for the price of a copy- 
 right, it must be pleaded specially that the as- 
 signment of such copyright was not in writing, 
 Barnett v. Glossop, 1 Bing. N. C. 638; 1 
 Hodges, 94; 3 Dowl. 625, S. C. If a contract 
 be specially declared oa in assumpsit, BoUand, 
 
 B. held thnt under non assumpsit the defend- 
 ant could not insist that the contract was not 
 in writing and signed, Ross v. Humphreys, 
 Easter T. 1835, Exchequer. But if a statute 
 expressly require a fact to be proved by the 
 plaintiff as part of his case, as the apothecary 
 act, requiring proof of plaintiff's certificate, 
 or that he was in practice before a certain day, 
 then the absence of that evidence need not be 
 pleaded specially to an action by such apothe- 
 cary for the amount of his bill, Morgan v. 
 Ruddock, 1 Har. & Woll. 505. So it is prop^^r 
 to plead specially that defendant's guarantee 
 was not in writing and signed, Clancy v. Pig- 
 gott, 4 Nev. & Man. 496; 1 Har. & Woll. 20. 
 It should seem that to such a plea plaintiff 
 should 910/ merely reply that there was an 
 agreement in writing, and conclude to the 
 country, but should set out the written agree- 
 ment in the very words, and conclude with a 
 verification, so that the Court may judge of 
 the sufiicienoy of the agreement, Lowe v. El- 
 dred, 3 Tyr. 234; and see form of plea and 
 replication, Hawes v. Armstrong, 1 Bing. N. 
 
 C. 763. If defendant be confident that the 
 written contract is insufiicient as a guarantee, 
 jke may and should set out the agreement in 
 
 his plea, Clancey v. Piggot, 4 Nev. & Man. 
 496; 1 Harr. & Woll. 20. 
 
 A defence that the contract was not to be 
 completely performed within a year, and not 
 in writing, must be specially pleaded, Ross v. 
 Humphreys, Exch. Tr. T. 1835; Bosanquet, 
 183 ; Charnock's Rules, 147. 
 
 Statute of Frauds. It is now settled that 
 the rules of Hil. T. 4 W. 4, do not interfere 
 with the evidence required to be proved on the 
 part of the plaintiff as a necessary part of his 
 case. Buttemere v. Hayes, 5 M. & W. 461; 
 under non assumpsit; therefore, the plaintiff 
 must show that the statute of frauds has been 
 complied with, as that an agreement for the 
 sale of an interest in land was in writing. So 
 in the case of a demise for three years, a writ- 
 ing must be proved, not mereljr on a special 
 traverse of the demise but where the denial of 
 demise is included in the general issue. So 
 also that » contract within the 17th Sect, for 
 sale of goods above the value of £10 was in 
 writing; Johnson v. Dodgson, 2 M. & W. 653; 
 or that there was an acceptance of part. El- 
 liot 0. Thomas, 3 M. & W. 173; Frioker v. 
 Thomlinson, 1 M. & Gr. 772. So also in the 
 case of an agreement to answer for the debt of 
 another; Eastwood v. Kenyon, 11 A. & E. 441; 
 3 P. & D. 276, S. C. And a' special plea of 
 the statute is bad, as an argumentative denial 
 of the facts alleged in the declaration. Leaf 
 ti. Suton, 2 Dowl. N. S. 300. 
 
 To assumpsit by. an attorney for fees and 
 business done, it has been considered necessary 
 to plead specially that he had not delivered his 
 bill signed a month before action commenced, . 
 Moore v. Boulcott, 5 Moore & Scott, 122; 1 
 Bing. N. C. 323; 3 Dowl. 145, S. C. But see 
 Bosanquet's Rules, 51, 52, and case as to the 
 apothecary's evidence, supra. So to special 
 assumpsit for non performance of an agree- 
 ment for incorporeal hereditaments, a plea that 
 the agreement was void because not under seal 
 is good; but the plaintiff recovered under an 
 indebitatus count for by-gone rent. Bird v. 
 Higginson, 1 Harr. & Woll. 61. 
 
 (e) Before this rule infancy might be given 
 in evidence under non assumpsit, but now by 
 the express terms of that rule it must be plead- 
 ed, and see the pleas, replications, &c., in 
 Burghart v. Angerstein, 6 Car. & P. 690 to 
 700, and post. 
 
 (/) Payment must now be pleaded, Linley 
 V. Polden, 3 Dowl. 780; Fidgett v. Penny, 1 
 Crom. M. & Ros. 108; 4 Tyr. 650; unless the 
 particulars of the plaintiff's demand admit all 
 the payments, and limit the claim to the sum 
 unpaid, per Parke, B. in Coates v. Stephens, 2 
 Crom. M. & Ros. 119. It seems, however, that 
 under non assumpsit payments may be given 
 in evidence in reduction of damages, Shirley 
 V. Jacobs, 7 Car. & P. 3; 2 Bing. N. C. 88; 
 but then unless the plaintiff's particulars have 
 admitted the payments, the defendant will 
 have to pay the costs, although he paid the 
 
*517 
 
 OF THE SEVERAL PLEAS. 
 
 ASSUMPSIT P6^fo^™anceC^), illegality oi consideration, dither by statute or common 
 ■ law (/j), drawing, indorsing, "accepting, &c., bills or notes by way of ac- 
 commodation (t), mutual credit, unseawortMness, misrepresentation, con- 
 
 money into Court, Adlard v. Booth, 1 Bing. N, 
 C. 693; 2 Crom. M. & Ros. 75. Before this 
 recent rule, payment between writ and declar- 
 ation was admissible in bar under non assump- 
 sit, 1 B. & Adol. 570; 10 B. & Ores. 677. 
 Payment breach breacli may be pleaded with- 
 out averring acceptance in satisfaction, but 
 when pleaded after breiick, although before 
 commencement or action, the plea must aver 
 that the payment was made and accepted in 
 satisfaction, and the plea must conclude with 
 a verification. Atisel v. Smith, 3 Dowl. 193. 
 If money be paid into Court pending an action, 
 it must be pleaded in a particular form, as 
 prescribed by 3 & 4 W. 4, u. 42, a. 21, and 
 Reg. Gen. Hil. T. 4 W. 4, reg. 17 to 19; Ad- 
 lard V. Booth, 1 Bing. N. C. 693. Plea of 
 payment in accord and satisfaction and repli- 
 cation held good.Bramah v. Barker,! Hodges, 
 39; 1 Bing. N. C. 502, S. C. An averment in 
 the plea that the payment was made and ac- 
 cepted in accord and satisfaction is essential, 
 Ansell V. Smith, 3 Dowl. 193. But payments 
 that do not amount to a bar, but merely to re- 
 duce the damages, need not be pleaded spe- 
 cially, but may be given, in evidence under 
 the gener.il issue, Ledyard v. Boucher, 7 Car. 
 & P. 1, ci supr. Sed quare the rule requiring 
 payment to be pleaded specially, was to pre- 
 vent surprise on the plaintiff upon the trial, 
 and to eu'ible him to be prepared to negatine 
 pretended payments by evidence. It would 
 seem, therefore, the admission of some evi- 
 dence, under the general issue is on principle 
 ' objectionable. 
 
 (g) " Want of consideration." — The plead- 
 ing rules, Hil. T. 4 W. 4, are silent as to 
 pleading the want of consideration. Accord- 
 ing to Passenger v. Brookes, 7 Car. & P. 110; 
 1 Bing. N. C. 587, to a, special count in as- 
 sumpsit, the want of consideration should be 
 pleaded specially, but to a common indebitatus 
 count, the want of consideration for the prom- 
 ise is admissible under the common plea of 
 non assumpsit, and see Chitty, jun. Precedents, 
 203, 204, 289, 290; see form of pleas, id. 
 And yet according to the instance in reg. 1, 
 viz. that in an action on a warranty, the plea 
 of non assumpsit will operate as a denial of 
 the fact of a warranty upon the alleged con- 
 sideration seems to import that non assumpsit 
 puts in issue as well the consideration as the 
 promise. 
 
 To a general plea of no consideration, plain- 
 tiff, instead of demurring, may reply generally 
 that there was a consideration, 1 Hodges, 66; 
 1 Bing. N. C. 409; 2 Crom. M. & Ros. 59; as 
 to a plea of ' gaming consideration, Boul. v. 
 Coghlan, 1 Bing. N. C. 640. 
 
 (A) "Illegaiily of consideration, either by 
 Halute or common' law."— Ttiia rule is very 
 explicit, Bee a good note in Bosanquet's Kules, 
 
 51 , note 49. No assignment in writing of a 
 copyright must be pleaded, Barnett v. Glossop, 
 1 Bing. N. C. 633; 3 Dowjl. 665; 1 Hodges, 
 94. Usury must be pleaded specially ; . 3 Nev. 
 & Man. 665; 1 Adol. & Ell. 576, S. C. As to 
 illegality of business tr.ausacted by an attor- 
 ney being a defence to an action on his bill, 
 Potts V. Sparrow, 1 Bing. N.C. 594 ; 3 Dow. 630, 
 S. C. ; B unett v. Glossop, 1 Bing. N. C. 633; 3 
 Dow. 625, S. C; Triebneer v. Duerr, 1 B. N. C. 
 266, and such a plea was admitted with non as- 
 sumpsit, id ibid. In the first it was held that 
 illegality of consideration must be pleaded 
 specially as a defence not only where the ex- 
 press contract in ithioh the plaintiff sues was 
 illegal, but also where illegal services having 
 been performed no contract to pay for them 
 could be inferred. Usury, 1 Hodges' Rep. 6. 
 
 If a contract be void as entered into on a 
 Sunday, that objection must be pleaded spe- 
 cially, but need not aver that such contract 
 was against the statute, Peute v. Dickens, 1 
 Crom. M. & Ross. 422, 427. 
 
 (i) A plea of no consideration generally for 
 accepting or indorsing, without stating affirm- 
 atively how there was no consideration, and 
 showing the facts why the defendant ought not 
 to pay, and knowledge of them on the part of 
 the plaintiff, is bad, first, because it amounts 
 to the general issue, the law implying a con- 
 sideration for an acceptance and indorsement, 
 but principally because it does not confess and 
 avoid, or state, as required by the new rules, 
 with particularity, the facts, which probably 
 are more within the knowledge of the defend- 
 ant than the plaintiff. The plaintiff may 
 therefore demur to such a general plea, as in 
 Law 1). Chifney, 1 Bing. N. g. 267; 1 Scott, 
 95; French?;. Archer. 3 Dowl. 130; Stofighton 
 V. Earl Kilmorey, 1 Gale, 91; 2 Dowl. 785, S. 
 C; Easton v. Prachet, 6 Car. & P. 736; 1 
 Gale, 80; 3 Dowl. 472, S. C; Mills v. Oddy, 
 3 Dowl. 730; 1 Gale, 92; 8 Car. & P. 728, S. 
 C. ; Pearce v. Champneys, 3 Dowl. 276; Stein 
 V. Tglesias, 3 Dowl. 250. Reynolds v. Joem- 
 ry, 3 Dowl. 453; Bramah v. Roberts, 1 Scott, 
 350; 1 Bing. N, C. 409; such a plea in the 
 terms of the rule must be that the defendant 
 accepted, &c. for the accommodation of a 
 named person, 2 Crom. M. & Ros. 59; 1 Mood. 
 & Rob. 379; 1 Gale, 89; 3 Dowl. 472; plea no 
 consideration for payment bad, 1 Gale, 69; see 
 a good form of plea, Stein v. Yglesias, 1 Gale, 
 98; 1- Bing. N. C. 479, 481. And after de- 
 murrer to such a plea, leave to amend has 
 been refused, without an affidavit of merits, 
 id. ibid.; and Stoughton t>. Kilmorey, 8 Dowl. 
 706; 1 Gale, 91, S. P. But an issue on a gen- 
 eral plea of no consideration found for pr 
 against the defendant will be good after ver- 
 dict, the plaintiff may safely take issue, either 
 generally that there was a sufficient considera- 
 
PIEST : BBS'ORE rati RECENt RULES. 
 
 517a 
 
 ciBalment, deyiatiion, set off (k), and various other defences must be plead- 
 ed (A). 
 
 "4. In actions on policies of assurance, the interest of the assured may 
 be averred thus : — ' that A--, B., 0., and D., or some one of them, were or 
 was interested, &c. ;' and it may also be averred, 'that the insurance was 
 made for the use and benefft, and on the account of the persen or persons 
 so interested, 'i 
 
 *II. In Covenant and Debt. 
 
 " 1. In debt on specialty or covenant, the plea of non est factum shall 
 operate as a denial of the execution of the deed in point of fact only (;) 
 and all other defences shall be specially pleaded, including matters which 
 make the deed absolutely void, as well as those which make it voidable. 
 
 " ^ 
 
 The plea of ' nil debet' shall not be allowed in any action. 
 
 ' 3. In actions of debt on simple contract, other than on bills of ex- 
 
 tion. Mills v. Oddy, 6 Car. & P. 728; 3 DowK 
 730; 1 Gale, 92, S. C; Easton v. Prachet, 6 
 Car. & P. 786; 1 Gale, 30; '3 Dowl. 472; 1 
 Mnd. & Rob. 879; (and defendant's counsel is 
 to begin at the trial. Mills v. Oddy, 6 Car. & 
 P". 728; Homan v. Thompson, id. 717, S P.); 
 or the plaintiff raay reply more spicially^, 
 setting out a consideration under a videli- 
 cet, and yet concluding to the country, Low v. 
 Burrows, 4 Nev. & Man. 366; 1 Har. & Wol. 
 12. 
 
 How to plead specially, and forms of suffir 
 dent pleas, or pleas that may be readily made 
 sufScient, see Stein •». Tglesias, 1 Gale, 98; 
 Percival v. Framplin, 3 Dowl. 748; Heydon v. 
 Thompson, 1 Adol. & El. 210; Bosanquet's 
 Rules, 104; Byess v. Wylie, 8 Dowl. 525; 1 
 Gale, 50; 1 Crom. M. & Ros. 686, S. C; Bra- 
 mah V.Baker, 1 Tlodges, 66; 1 Bing. N. C. 
 169; 8 Dowl. 492, S. C. 
 
 (fc) As to pleading a sei-(^ see Bosanquet's 
 Rules, 52, note 50 ; and see Duncan v. Grant, 
 1 Crom. M. & Ros. 283; 2 Dowl. 683; 4 
 Tyr. 818, S. C; 5 Bar. & Adol. 866, and 
 post. 
 
 (A) Pleas qualifying the contract alleged. 
 A plea which in answer to the contract declared 
 on, sets up another contract, incompatible with 
 it, is ill as amouating to the general issue. 
 Morgan v. Pebrer, 3 Bing. N. C. 457. Where 
 the declaration stated that it was agreed that 
 the plaintiff should sell and the defendant buy 
 a certain messuage, farm and lands for 58. 
 that the defendant before the 29 th September, 
 1842, should pay for the fixtures, manure, &c.,. 
 which should be left on the 29th of September, 
 such sums as should be determined on by a 
 Taluation, in case such valuation should be 
 madp on or before that day, but if not so made, 
 then & reasonable sum, and averring that no 
 valoation was made on the. 29th of Septemberv 
 
 and that the fixtures were left on -the premises, 
 alleging a breach in non payment of the rea. 
 sonable sum, the defendant pleaded that the 
 said agreement in the declaration was an agree- 
 ment by which the plaintiff agreed to sell and 
 the defendant to buy all that messuage, farm 
 and lands, as the same were comprised in a 
 certain indenture of lease for the residue of a 
 term of fourteen years; that it was further 
 agreed that the plaintiff on receiving 5s., and 
 such sum as should be the reasonable value of 
 the fixtures, &c., would execute an assignment 
 of the indenture, and that upon the execution 
 of such assignment and payment made as 
 aforesaid the defendant should be put in pos- 
 session of the premises, fixtures, &c. and aver- 
 red that the plaintiff did not ; nor was ready 
 and willing to execute an assignment of the 
 indenture, nor was he ready and willing to put 
 the defendant into possession of the premises, 
 fixtures, &c., it was held on special demurrer, 
 that as the plea qualified the contract in the 
 declaration it was bad, as amounting to non 
 assumpsit. Nash v. Breeze, 12 L. J, R. N. S. 
 Exch. 805. Where a declaration in assumpsit 
 describes the terms of the contract in language 
 denoting that a particular act Vrhich the plain- 
 tiff has engaged to do is to be independent of, 
 or concurrent with acts to be done on the part 
 of the defendant, and performance of whici 
 therefore it is not averred in the declaration, 
 if it were in fact a condition precedent, non 
 assumpsit is the proper plea, and under it 
 the special matter may be given in evidence. 
 Per Miiule, J. in Eemblo v. Mills, 1 M. & G. 
 770. 
 
 (I) But if a, public body be incorporated, 
 by a statute, with a special power of executing 
 a deed in a certain, form, then non est factum 
 puts in issue whether the deed wa3< exeouted 
 in the legal form. 
 
 I. IH 
 ASSUMPSIT, 
 
 4. In dec- 
 laration on 
 policy, the 
 interest 
 may be 
 averred to 
 have been 
 in several, 
 and proof 
 of either 
 shall 
 sufBce. 
 
 [ *518 J 
 
 1. JSTon est 
 factum to 
 
 be consid.* 
 ered aa 
 merely de- 
 nying the 
 execution • 
 of the 
 deed, and 
 all other 
 defences; 
 must be 
 specially 
 stated. 
 
 2. JVil de- 
 iet abolish- 
 ed. 
 
 3. Plea of 
 " never In- 
 debted," 
 to be ad- 
 missible to 
 the like ex- 
 tent as non 
 assumpsit. 
 
518 
 
 OP THE SEVERAL PLEAS. 
 
 ISf 
 
 ASSUMPSIT. 
 
 but mat- 
 ters ia 
 avoidance 
 to be spe- 
 cially 
 pleaded. 
 4. In other 
 actions of 
 debt the 
 pleas to 
 traverse a 
 particular 
 fact, and 
 to state 
 matter in 
 avoidance. 
 
 III. IN DE- 
 TINUE. 
 
 J\ron deti- 
 net only to 
 put in is- 
 sue the 
 fact of de- 
 tention of 
 the specific 
 goods, and 
 not plain- 
 tiff 's pro- 
 perty 
 
 therein, or 
 ground of 
 defence, 
 
 [ *519 J 
 
 1. Not_ 
 guilty in 
 case, only 
 to put in 
 issue the 
 alleged 
 wrongful 
 act or 
 omission, 
 and not 
 facts stat- 
 ed as in- 
 ducement. 
 Instances 
 in elucida- 
 tion of this 
 rule. 
 
 change and promissory notes, the defendant may plead that * he never was 
 indebted in manner and form as in the declaration alleged (m) : ' and 
 such plea shall have the same operation as the plea of nan assumpsit in in- 
 debitatus assumpsit, and all matters in confession and avoidance shall be 
 pleaded specially as above directed in actions qf assumpsit, 
 
 " 4. In other actions of debt in which the plea of nil debet has been 
 hitherto allowed, including those on bills of exchange and promissory notes, 
 the defendant shall deny specially some particular matter of fact alleged 
 in the declaration or plead specially in confession and avoidance. 
 
 III. Detinue. 
 
 " The plea of non detinet shall operate as a denial of the detention of 
 the goods by the defendant, but not of the plaintiff's property therein, and 
 no other defence than such denial shall be admissable under that plea (n). 
 
 IV. In case. 
 
 " 1. In actions on the case, the plea of not guilty shall operate as a de- 
 nial only of the breach of duty or wrongful act, alleged to have been com- 
 mitted by the defendant (o), and not of the facts stated in *the induce- 
 ment (p) ; and no other defence than such denial shall be admissable un- 
 der that plea ; and all other pleas in denial shall take issue on some par- 
 ticular matter of fact alleged in the declaration. Ex. gr. In an action on 
 the case, for a nuisance to the occupation of a house, by carrying on an off- 
 ensive trade, the plea of ' not guilty ' will operate as a denial only that the 
 defendant carried on the alleged trade in such a- way as to be a nuisance 
 to the occupation of the house, and will not operate as a denial o£ the 
 plaintiffs occupation of the house (A) In an action on the case for ob- 
 
 (ffl) If a plea be that defendant never did 
 owe, instead of "never was indebted," the 
 form prescribed by this rule, it is sufficient, 
 but the C.jurt will permit an amendment on 
 im affidavit of merits^ Smedley v. Joyce, 1 
 Try. & Granger, 84. 
 
 (n) Semble, that if a defendant merely re- 
 fused to deliver up a chattel on the ground of 
 his lien thereon, that would be no conversion, 
 and might at least in trover be given in evi- 
 dence under " not guilty," end gucrc wliether 
 if not in detinue under non detinet. See per 
 Parke, B. in Stancliffe v. Hardwick, 1 Gale, 
 130, and 2 Crom. M. & Ross. 1, S. C. 
 
 (o) So in an action for keeping a mischiev- 
 ous animal, a " plea of " not guilty," denies 
 the scienter as well as the injury, Thomas v. 
 Morgan, 2 Crom. M. & Ron. 496. In an ac- 
 tion lor a malicious outlawry, " not guilty" 
 puts in issue as well the original debt, as the 
 existence of reasonable and probable caupe 
 for the proceeding, but not the reversal of the 
 outlawry, Brummond v. Figou, 2 Bing. N. 
 
 C. 114. 
 
 (p) Dukes V. Goatling, 1 Bing. N. C. 588; 
 3 Uowl. 619. S. C. " Not guilty" does not 
 put in issue the inducement as to plaintiff's 
 right, though in some degi'ee part of descrip- 
 tion of the injury, Frankum v. Earl of Fal- 
 mouth, 1 Harr. & Wol. 1; 4 Nev. & Man. 380; 
 6 C»r. & P. 529, 8. P. 
 
 (A) Injuries to Real property. Easements, 
 Ifc. In an action for erecting a cesspool near 
 a well, and thereby contaminating the water of 
 the well, the plea of not guilty puts in 
 issue both the fact of the erection of the cesspool 
 and that the water was thereby contaminated. 
 Norton v. Scholefield, 9 M. & W. 666; 1 Dowl. 
 N. S. 638, S. C. 
 
 In an action by a reversioner for an injury 
 to his land, in the possession of his lessee, the 
 defendant by the plea of not guilty admits the 
 reversionary interest of the plaintiff, the de. 
 mise and the tenancy, and the injurious act 
 alone is put in issue.' Paine v. Alderson, 4 
 Bing. N. 0. 702. 
 
SECONDLY : SINCE THE RECENT RULES. 
 
 519 
 
 IV.INOAaiE. 
 
 '*V. In Trespass. 
 
 structing a right of way, such plea will operate as a denial of the obstruc- 
 tion only, and not of the plaintiff's rigiit of way (r) (B) ; and in an ac- 
 tion for converting- the plaintiff's goods, the conversion only, and not the 
 plaintiff's title to the goods (s). In an action of slander of the plaintiff 
 in his office, profession, or trade, the plea of ' not guilty ' will operate 
 to the same extent precisely as at present in denial of the fact of speak- 
 ing the words^ of speaking them maliciously, and in the sense imputed, 
 and with reference to the plaintiff's office, profession, or trade (<) : but 
 it will not operate as a denial of the fact of the plaintiff holding the office, 
 or being of the profession or trade alleged. In actions for an escape, it 
 will operate as a denial of the neglect or default of the sheriff or his offi- 
 cers, but not of the debt, judgment, or preliminary proceedings. In this 
 form of action against a carrier, the plea of '»ot guilty' will operate as a 
 denial of the loss or damage but not of the receipt of the goods by the de- 
 fendant, as a carrier for hire, or of the purpose for which they were re- 
 ceived. 
 
 " 2. All matters in confession and avoidance shall be pleaded specially 2- All mat- 
 as in actions oi assumpsit (m). confession 
 
 and avoid- 
 __^^_^_ ance to be 
 
 pleaded 
 specially, 
 
 [*520] 
 clausum fregit, the close or place in J- ^j?*"". 
 
 trespass to 
 done, and if the other party shall intend to demur, 
 rely on any proviso, exception, incapacity, dis- 
 ability, contract, agreement, or other matter 
 therein before mentioned, or any cause or mat- 
 ter of ficC or of law not inconsistent with the 
 simple fact of enjoyment, the same shall be 
 specially alleged and set forth in answer to 
 the allegation of the party claiming and 
 shall not be received in evidence in any 
 general traverse or denial of such allegation. 
 This enactment has introduced a much more 
 concise mode of claiming rights of this 
 nature. 
 
 (s) See pleas of property in defendant in 
 trespass, Wilton v. Edwards, 6 Car. & P. 
 677 ; plea that sale to phiintiff was fraudulent, 
 1 Moo. & Rob. 400; transfer for value and rep- 
 lication, 1 Hodges, 98; 1 Bing. N. C. 681; 
 seizure under a fi. fa. and replication,! Bing. 
 N. 0. 7:21; seizure under four wari'a'nts, 1 
 Adol. & £11. 261; tenancy in common, or part- 
 nership, must be pleaded, Stancliffe v. Hard- 
 wick, 3 Dowl. 762; 2 Cr. M. & Ros. 1; 1 
 Gale, 127; Bosanquet's Rules, 67, note 55. 
 But a mere refusal to deliver a chattel on the 
 ground that defendant had a lien may be 
 admissible under " not guilty," id. ibid.; 
 Supra, n. {»). 
 
 (0 In an action for a libel, "bbt guilty" 
 suffices, if upon the whole context, the jury 
 can be induced to find it to be no libel, 1 
 Oale, 69. When it may be advisable to plead 
 . a, justification to mitigate damages, Chalmers 
 V. Shackle, 6 Car. & P. 475. 
 
 (u) Therefore defendant's partnership with 
 plsimtiff must be pleaded in trover, Stan- 
 
 " 1. In actions of trespass quare 
 
 (r) Or right to a drain, 1 Gale, 62. 
 
 (B) Thus in an action for diverting a stream 
 of water, on the plea of not guilty, the only 
 matter in issue is the fact of the diversion, 
 and the allegation that the defendant wrong- 
 fully " diverted the water" does not put the 
 title in issue. Franklin v. Earl of Faimouth, 
 2 A. & E. 452; 4 N. & M. 330; S. C. or any 
 fact alleged by way of inducement in the dec- 
 laration. Dukes V. Gostling, 1 Bing. 588; 3 
 Dowl. 619, S. C. 
 
 Before the 2 & 3 W. 4, c. 71, =, 5, although 
 plaintiffs were allowed to declare generally in 
 actions on the ease stating that by reason of 
 their possession of a messuage or other corpo- 
 real tenement, they were entitled to a right of 
 common or of way, &c. without showing the 
 origin of the right or any deviation title; yet 
 other pleadings, particularly in trespass and 
 replevin, it was essential to justify or claim 
 under some owner in fee and then to state the 
 deviation title, however difficult and prolix. 
 7he above Statute enapts, that in all pleadings 
 to actions of trespass and in all other plead- 
 ings, wherein before the passing of that act, 
 it would have been necessary to allege the 
 right) scilicet of common or other profit a 
 prendre, or of way or other easement, or to 
 the use of lights) to have existed from time 
 immemorial, it shall be sufficient to allege the 
 enjoyment thereof as of right by the occupiers 
 of the tenements, in respect whereof the la^d 
 is claimed for and during such of the periods 
 mentioned in that act as may be applicable to 
 the case and without claiming in the name or 
 right of the owner in fee, as was before usually 
 
 Vol. n. 69 
 
520 OF THE SEVERAL PLEAS. 
 
 nr. IN -which, &c., must be designated in the declaration by name or abuttals or 
 °^^' other description, in failure whereof the defend ant may demur specially 
 (1). 
 
 2."" Not " 2- ^^ actions of trespass quare clausum fregit, the plea of ' not guilty, 
 guilty" to shall operate as a denial that the defendant committed the trespass alleged 
 of the^de-"' ^^^ ^^ ^^^. P^^°^ mentioned, but not as a denial of the plaintiff's posses- 
 fendant^s ^'O'^' ^r right of possessiou of that place, which, if intended to be denied, ^ 
 trespasses, must be traversed specially. 
 
 but not of plaintiff's possession or rigiit of possession, and which must be specially traversed. 
 
 8. " Not " 3. In actions of trespass de bonis asportatis, the plea of ' not guilty ' 
 guilty" to shall operate as a denial of the defendant having committed the trespass 
 ^dTSias- ^^^^g6<i C"^) ^Y taking or damaging the goods mentioned (.t), but not of 
 portaiis, the plaintifl's property therein (p). 
 to be con sideredonly a denialof taking or merelydamaging the goods, andnot of theplaintiff'sproperty. 
 
 *•' ht*f °^ "4. Where in an action of trespass o'ltare clausum fregit, the defend- 
 way with ^°t pleads a right of way with carriages and cattle, and on foot, in the 
 carriages, Same plga, and issue is taken thereon, the plea shall be taken distributive- 
 cattle, and ly . and if the right of way with cattle, or on foot oilly, shall be found by 
 traversed t^® j'^^y, a verdict shall pass for the defendant in respect of such of the 
 shall be trespasses proved as shall be justified by the right of way so found, and 
 considered for the plaintiff in respect of such of the trespasses as shall not be so jus- 
 
 tive^and ti^^d. 
 
 theproof of either shall, pro tanto, entitle the defendant to a verdict. 
 
 5. So. in " ^' ■^'^^ where in an action of trespass quare clausum fregit, the de- 
 piea of fendant pleads a right of common of pasture for divers kinds of cattle, ex. 
 right of gr. horses, sheep, oxen and cows, and issue is taken thereon, if a right of 
 defe^ant commou for some particular kind of commonable cattle can only be found 
 do not by the jury, a verdict shall pass for the defendant in respect of such of the 
 prove a trespasses proved, as shall be justified by the right of common so found, and 
 alf k'inds of ^°^ ^^^ plaintiff in respect of the trespasses which shall not be justified. 
 
 cattle, he is t° l^^ve a verdict pro ianio. 
 
 r *521 1 " ^' ^^^ i'l ^^ actions in which such right of way or common as afore- 
 
 6. In all said, or other similar right, is so pleaded, that the allegations *as to the 
 afltions the extent of the right are capable of being construed distributiyely, they 
 same rule ^j^^^^^ ^^ ^^t^^^ distributively." 
 
 a^rellrds The 3 & 4 W. 4, c. 42, s. 21, and Eeg. Gen. 4 W. 4, give a plea of 
 rights of payment of money into Court by leave of a judge in some actions /or torts 
 way or ^ \ . ^^^ j{^g„ Qpu -Q^i rp ^ -^ a ^7 prescribes the form of such 
 
 common. ^, ' ' , nx 7 n j r 
 
 Plea of plea (a)t.. 
 
 payment of 
 
 money into eliffe «. Hardwick, 8 Dowl. 762. A denial 689. 
 
 Court. of plaintiff's possession of goods, or assign- (x) Peajcy «. Walter, 6 Car. & P. 282. 
 
 ees* denial of their being assignees of a [y) Therefore to trespass. for taking goods, 
 
 bankrupt. Best v. Thomas, 6 Car. & P. 611. the defendant must plead specially that the 
 
 The truth of the slander must be pleaded goods were their property as assignees of a 
 
 J specially, Chalmers v. Shackle, 6 Car. & P. bankrupt, Jones v. Brown, 1 Bing. N. C. 484, 
 
 476; and it seems questionable whether it where see form of plea and replication. 
 
 could be given in evidence under " not guilty," (z) See form in trover and replication, 6 
 
 even in mitigation of damages, id. ibid. 385, Car. & P. 712. 
 
 588, 589i 5 Moore & P. 620; 8 Bos. & Pul. (a) 3 Chit. Gen. Prac. 684 to 687. 
 
 (1) Ante 877 note. 
 
 t See American Editor's Preface. 
 
II. THEIR QUALITIES. 521 
 
 :i. OP THE QUALITY OP PLEAS IN BAB. * 
 
 There are some general qualities -which affect pleas ia bar, and some 
 rules which prevail in the constrnction of them, which it is advisable to 
 consider before we inquire into their form. The general qualities of a 
 plea in bar are, — 
 
 1st, That it be adapted to the nature and form of the action, and also 
 be conformable to the count. 
 
 2dly, That it answers all which it assumes to answer, and no more. 
 
 3dly, That it deny, or admit and avoid the facts ; and herein of giving 
 color, and of pleas amounting to the general issue. 
 
 4thly, That it be single. - 
 
 5thly, Gertain. 
 
 6thly, Direct and positive, and not argumentative. 
 
 Tthly, Capable of trial. 
 
 And 8thly, True ;"and herein of sham pleas. 
 
 1st.. Every plea in bar must be adapted to the nature of the action, and 1st. Con- 
 comformable to the count {b). Therefore in an action against husband and ^™e''*^ 
 wife for words spoken by the wife, a plea that "they" are not guilty in- tionand"" 
 stead of " she is not guilty," appears to be improper (c) (1). We have count, 
 already seen what are the appropriate general issues and special pleas in ,*" *¥ *^" 
 each action. If the defendant plead a plea not adapted to the natur'e of breach. 
 the actions, as m7 debet in assumpsit {d} ; or non-assumpsit in debt (e) ; or 
 a plea of set-off to an action of debt, as if it were an action of assumpsit 
 (/) ; the plaintiff may treat it as a nullity, and sign judgment (§■). But 
 the plea of " not guilty" in an action of debt on a penal statute, is not 
 such a nullity as will warrant the plaintiff in signing judgment (A) ; nor is 
 the plea of nil debet in an action of debt on a judgment (i). So, a plea in 
 assumpsit *that the defendant " did not undertake, (omitting ' or promise.'^ [ *^22 ] 
 in manner," &c. concluding to the country, is not a plea which can be treat- 
 ed as a nullity (k). Where the plea though informal, goes to the sub- 
 stance of the action, as nil debet to debt on bond, the plaintiff should demur, 
 and not sign judgment (/) ; and in general, where the defendant pleads an 
 improper plea, the safer course is to demur, or move the Court to set it 
 aside (w) (2). In debt for £1,800, the defendant pleaded that he did 
 not owe " the said sum of £10 above mentioned," and the Court, after is- 
 
 (J) Co. Lit. 303 a, 285 b; Bao. Ab. Pleas,' 476. 
 
 1. per tot.; 1 Rol. Rep. 216. (/) 2 M. & Sel. 606. 
 
 (c) 1 Rol. Rep. 216. (g) SeeTidd, Qth ed. 563. 
 
 (rf) Barnes, 257; Tidd, 9th ed. 563, 476. (ft) 1 T. R. 462; 3 B. & P. Ill, 174; Com. 
 
 Sed vide Rep. T. Hardw. 179; 4 Taunt. Dig. Pleader, 2 S. 11, s. 17. 
 
 164. See 1 Chit. Rep. 715, 716, n., and (i) 2 Chit. Rep. 239. 
 
 cases there collected as to pleading not guilty (k) 3 D. & R. 621. 
 
 in assumpsit ov non-assumpsit ia an action for (Z) 5 T. R. 152; 5 Esp. Rep. 38; ante, 
 
 alort. And see Stra. 574, 1022; Lawes on 483. 
 
 PI. 527. (m) 1 Burr. 59; 2 T. B. 890; 7 Id. 630; 
 
 (c) East, 549^ 11 Id. 442; 4 Taunt. Rep. Temp. Hardw. 179; 5 T. B. 152. ' * 
 164; 1 Chit. Rep. 716, note; Tidd, 9th ed. 
 
 (1) Vide Chew v. Wooley, 7 Johns. 402. 
 
 (2) But in Falls v. Stickney, 8 Johns. 541, the court say, that if a plea is bad or frivolous 
 the plaintiff ought either to demur to it, or treat it as a nullity, and «nter a default withpftt 
 any application to the court. See Mawin v, Wilkina, 1 Aiken, 107. 
 
522 OF THE SEVEBAl PLEAS. 
 
 IT. sue joined •would not bompel him to amend («). If declaration state 
 QUAHTiEs. i)j,ga(,jj Qf condition of bond in non payment of a principal sum, a plea of 
 payment of that and of the interest thereon is bad (o). But the plaintiff 
 might, instead of demurring, safely take issue in the words of the plea, so 
 that the unnecessary averment in the plea cannot be treated by the defen- 
 dant as surplusage (o). 
 
 The plea must not only be adapted to the. nature of the action, but also 
 be conformable to the count. Tlius, if an assignee of a bankrupt declare 
 that the defendant was indebted to the bankrupt, and promised the plain- 
 tiff, as assignee, to pay him, the defendant cannot plead that the cause of 
 action did not accrue to the bankrupt within six years ; because the plea 
 does not answer the promise laid in the declaration, and precludes the 
 plaintiff from proving a promise to himself, and is therefore bad on de- 
 murrer (j)'). And in debt qui tarn, a plea that the defendant doth not owe 
 the money " to the plaintiff" alone, is insufficient, though if it had been 
 nil debet generally, it would have sufficed (5). So the plea must not, con- 
 trary to the legal effect, treat an instrument as a promissory note when it 
 was not so declared on (r). So, it is a rule that if to a transitory action, 
 the defendant plead any matter which is itself transitory, he is obliged to 
 lay it at the place mentioned in the declaration^ (s) ; but if the jurisdiction 
 be local, the defendant must plead it in the county pr parish where the 
 matter arose, and conclude with a traverse of having been guilty else- 
 where (<) ; and at common law, the cause must have been tried there, and 
 not in the county where the action was laid, otherwise it was error ; though 
 this as far as regards the trial, no longer obtains, the action being uni- 
 formly tried in the county where the venue is laid in the declaration (m). 
 [ *623 ] So, when the time is not material, it is a rule that the plea *should follow 
 the day in the declaration, and if it be material to vary from it the plea 
 should conclude with a traverse {x). Where, however, there is no ground 
 .to iijtend the contrary, the plea will be considered as comformable to the 
 count : thus, ip assumpsit against an executor, on the promise of his testa- 
 tor, the defendant pleaded that he did not undertake, and it was objected, 
 that it did not appear by the plea, who did not assume, but it was adjudg- 
 ed that it should be intended that the defendant meant to plead that the 
 testator did not promise, as there was no count in the declaration on a 
 promise by the executor (jy'). 
 
 The instances in which a plea may be treated as a sham plea and as a 
 nullity, in consequence of the matter pleaded being inconsistent and im- 
 possible, with reference to the declaration, will be hereafter mention- 
 ed. 
 
 I^'y- 2dly. The defendant must take care in the introductory part of his plea 
 
 Bwer'the"' ^s well as in the body to plead to and answer every part of the causes of 
 •whole action charged in the declaration, for otherwise the plaintiff, after proving 
 "'ith^th' *^° ^^°*^ under the general issue, will recover for all that has not been jus- 
 
 exceptioa 
 
 of matters («) 1 »• & B- 473. See 1 M. & P. 276; («) ISaund. 247, note 1, 8 a, note 1; 85, 
 
 in aggra- ""^ "»'/« 3 B. & P. 174; o.nff, 481, note (m) 1. note 1; 2 /d. 5 b, note 3. 
 
 Tation. (0) Bishton v. Evans, 2 Crom. M, & Ros. (0 /(/. 
 
 14. (u) Id. See 1 Saund. 98, note 1 . 
 
 (p) 2 Stra. 919; 2 Hen. Bla. 561. (x) 1 Saund. 14, 81 a, note 3; 2 Id. 5 b, 
 
 (5) Hob. 3'27, 328; Keg. Plac. 302; Bac. note 3; Com. Dig. Pleader, E. 4; See po»t, 
 
 Ab. Action, gui ?am,.D. See (intc,, 521. as to Quoe csJ carfem. 
 
 (r) 1 Harr. & Well. 426,' \y) 1 Lev. 184; Latch. 125, 
 
II. THEIR QUALITIES. 523 
 
 tified, and this without new assigning, but not so as to mere matters in ag- "• 
 gravation (s). otalitibs. 
 
 Sdly. It is a rule that every plea must answer the whole declaration 3dly. Must 
 or count, or rather all that it assumes in the introductory part to answer, f^^/unj^eg 
 and no more (o) (1). If a plea begin only as an answer to part, and is in to answer, 
 truth but an answer to part, as if the defendant in trespass for taking two and no 
 sheep plead that the plaintiff " ought not to have his action as to one" be- ™°'^®" 
 cause he took that one doing damage on his close, &c. and does not in 
 that or any other plea (6) notice the remainder of the declaration, the 
 plaintiff cannot demur to the plea, for it is sufficient as far as it extends, 
 but must take judgment for the part unanswered as by nil dicit (2). If he 
 demur or plead over, without taking such judgment the whole action is 
 discontinued (c) (3) ; for in such case the plaintiff, by omitting to enforce 
 his claim in respect of the 'unanswered portion of such claim by taking [ *524 J 
 judgment, or to resign it by entering a nolle prosequi thereto, causes a 
 chasm or hiatus in the proceedings {d). But where to a declaration in 
 debt demanding £60 and containing six counts for £10 each, the defen- 
 dant pleaded that he did not owe the said sum of £10, above demanded, and 
 the plaintiff treated the plea as a nullity and signed judgment, the Court 
 set the judgment aside on the ground that the " of £10" might be struck 
 out as surplusage (e). If the plea profess to answer only a part, but af- 
 
 (z) Bush ». Parker, 1 Bing. N. C. 72; and plaintiff may rectify his mistake by taking 
 
 See 2 Crom. M. & Ros. 329. judgment, Stra. 303; Lord Raym. 716; 1 
 
 (a) Co. Lit. 303 a; Com. Dig. Pleader, E. Salk. 180. And a discontinuance is cured 
 1, 36; 1 Saund. 28, n. 3, and notes e,' f, g, h, after verdict by statute 32 Heu. 8, c. 30; 1 
 5th edit.; 2 B. & P." 427; 3 Id. 174; Steph. Hen. Bla. 644; and after judgment by nil 
 2d ed. 253; 1 Tyr. & Gr. 85; 5 Tyr. 421; 2 dicil confession, or non sum informatus by 4 
 Or. M. & Ros. 56. ■ & 5 Ann. >;. 16. 
 
 (b) 1 Saund. 28, n. g. 5th edit.; 6 Bing. (d) Biscontinuance is either of process or 
 695 per Bosanquet, J. of pleading. As to continuances, &c. Tidd, 
 
 (c) Salk. 179; 1 Saund. 28, note 3; 1 9th ed. 678; Steph. 2 edit. 33. 
 
 Hen. Bla. 645; 1 B, & P. 411; 6 Taunt. (e) Risedale o. Kelley, 1 Cromp. & Jer. 
 
 606, 607; 2 Marsh. 304, S. C. However, 410. 
 at any time duri ng the same term, the 
 
 (1) Vide Nevins v. Eceler, 6 Johns, 63; Riggs v. Benoiston, 3 Johns. Cas. 198; Boyd 
 ©.Weeks, 5 Hill, 398 1 Fletcher v. Peck, 6 Cranch, 126; Barnard v. Duthy, 5 Taunt. 27; • 
 Spencer II. Southwick 11 Johns. 583, 587; Van Ness v. Hamilton, 19 Johns. 374; Hallett v. 
 Holmes, 18 Johns. 2i; 19 Wend. 547; 17 Wend. 188; Carpenter ». Briggs, 15 Vermont, 34; 
 Gray v. Ayres, 7 Dana, 375; Cooper y. Greeley, 1 Denio, 347. Wittick v, Traun, 27 Alabama, 
 562; Traun v. Wittick, 27 Alabama, 570; Smith v. Ely, 5 McLean, 76; Curtis ». Central 
 Railway, 6 McLiean, 401; Mitchell v. Lellwan,5 Maryland, 376; Foster v. Hazen, 12 Barbour, 
 647. 
 
 (2) Carpenter v. Briggs, 15 Vermont, 34; Culbertson v. Stanley, 6 Blackf. 67; Cross v. 
 Watson, 6 Blackf. 130; Deshler v. Hodges, 3 Alabama, 509; Hunt v. Mansur, 5 Blackf. 214. 
 In New York a plaintiET is not bound to take judgment by nil dicit where a defective plea is 
 interposed, but may demur generally. Underwood t>. Campbell, 13 Wendell, 78; Ethridge v. 
 Osborn, 12 Wendell, 399. 
 
 (3) See Frost v. Hammett, 11 Pick. 70; Earle v. Hall, 22 Pfck. 102. 106; Sames v. 
 Skinner, 16 Mass. 343. " It appears to me," says Ch. Justice Spencer, in reference to the 
 text, and to 1 Saund. 28, n. 3, " that the position laid down by Mr. Chitty, and Serjeant 
 Williams, is not law, and the cases they refer to do not bear out the proposition. On the *• 
 eontrary, there are several cases, which are directly opposed to it," &c. Sterling!). Sher- 
 wood, -20 Johns. 206. In Riggs «. Denniston, 3 Johns. 205, Kent, J., lays down the rule 
 thus: That as the plea did not, either by denying or justifying, meet the whole matter or 
 gruvumen cntained in the count, it was for that reason bad; and he referred to 2 Vent. 193. 
 Cro. Jac. 27; Cro. Eliz. 434. It does not expressly appear by the case, whether the plea 
 professed to answer the whole declaration or not; but I infer that it did not, or else that 
 would have been relied on in the opinion delivered. 
 
524 OP THE SEVERAL PLEAS. 
 
 !'■ terwards answers more, it has been held that the plaintiff should not demur, 
 DAL1TIE3. i^uj. s}jQ„i^ j.j^jjg ju(jgment for the part not mentioned in the beginning of 
 the plea (/) (1). 
 
 But if a plea profess in its commencement to answer the whole cause 
 of action, and afterwards answer only a part, the whole plea is bad 
 (^) (2)) and in this instance the plea being insufficient, the plaintiff's 
 course is to demur generally or specially, and there will be no discontin- 
 uance by so doing, or by replying, instead of taking judgment as to the 
 unanswered part (A) (3). As if in covenant for seven quarters' rent, a 
 plea profess to answer the whole, but only show a surrender before the 
 last four of the seven quarters' rent accrued due, it is bad on demurrer, 
 because, it does not answer the whole breach, which is not entire, but part 
 of it may be proved (i). And where to a declaration for a libel, which 
 charged that the plaintiff had been three times suspended for misconduct 
 as a proctor, the defendant pleaded to the whole declaration that the 
 plaintiff had been once so suspended, it was held on demurrer that the 
 plea was altogether bad : although as the libel was divisible, the pica 
 would have been sufficient had it been confined in the introduction, &c. to 
 the charge of the single suspension {^k). So, if in trespass the defendant 
 assume in the introductory part of his plea to justify an assault, battery, 
 
 (/•) 1 Stra. 303; Saund. 28, note Z,acc. Bosanquet, J. 6. Bing. 695. 
 
 But see 2 B. & P. 425, where it was de- {g) 1 Snund. 28, n. 3; Willes, 55; 1 Salk. 
 
 cided that when a plea begin as an answer 179; I Chit. Rep. 132; 2 B. & 0. 477; 3 D. 
 
 to part, and contains in the body of it an an- & R 647, S. C. 
 
 swer 10 tlie whole, the plaintiff may demur; (A) Crump ». Adney, 3 Tyr. 279; 6 Taunt, 
 
 but (as observed in note g. to 1 Saund 28, &th 646, 647 ; Steph. 2d edit. 245; 2 B. & 0. 477; 
 
 ed.) in this case there was a plea of non as- 2 D. & R. 647, S. C. ; 6 Bing. 266. 
 
 sumpsit to the whole declaration, so that the (j) 5 Taunt. 27. See 1 B. & C. 460. 
 
 special plea which was demurred to could not (/c) 6 Bing. 266; and 587, S. C. 
 operate as a discontinuance. And see per 
 
 (1) Hallett V. Holmes, 18 Johns. 28. Vide Nevins v. Keeler, 6 Johns. 63; Loder ». 
 Phelps, 13 Wend. 48; Edwards v. White, 12 Conn. 28. In England, if a plea begins as 
 an answer only to a part of the declaration, and is in truth only an answer to part, the 
 plaintiff must take judgment for the part unanswered as by nil dicit. Here, a general de- 
 murrer to such a, plea is sustained. Etheridge v. Osborn, 12 Wend. 402. This is a fatal 
 defect. Sterling ». Sherwood, 20 Johns, 204; Heeock v. Coates, 2 Wend. 410; Slooum v. 
 Despard, 8 ib. 615. The court repose themselves upon the opinion of Willes, Ch. J, in 
 Bullythorpe v. Turner, Willes, 475, 80, and Yelv. 38, Cro. Jac. 27, Cro. Eliz. 434, 2 Ventris 
 193, and 3 Johns. Cas. 205. Vide 6 Greenl. 476. 
 
 (2) Nevins v. Keeler, 6 Johns. 65; Stilwell v. Hasbrouok, 1 Hill, 561; Gillespie v. 
 Thomas, 15 Wendell, 464; Lattin v. Vail, 17 Wendell, 188; Hallett d. Holmes, 18 Johns. 
 28; Loder v. Phelps, 13 Wendell, 46; Van Ness v. Hamilton, 19 Johns, 349; Taylor 
 D. Bank of Kentucky, 2 J. J. Marsh, 564; Etheridge v. Osborne, 12 Wendell, 399; Slocum v. 
 Despard, 8 Wendell, 615; Hickok v. Coates, 2 Wendell, 419; Postmaster v. Reeder, 4 
 Wash. C. C. 678; Farquhar v. Collins, 8 A. K. Marsh. 31; Underwood v. Campbell, 18 
 Wendell, 78; Brewster v. Hobart, 15 Pick. 802; Phelps v. Sowles, 19 Wendell 547; Frink v. 
 King, 3 Sjammon, 144; Snyder v. Gaither, 3 Scammon, 91; Weimer v. Shelton, 7 Missouri, 
 287; Adams v. M'Millan, 7 Porter, 78; Tappan v. Prescott, 9 N. Hamp. 531; Bettle v. Wilson, 
 14 Ohio, 257; Hawk v. Pollard, 6 Blackf. 108; Hickley Grosjean, 6 Blackf. 351; Rust d. Smith, 
 5 Blackf. 352. Wittick v. Traun, 27 Alabama, 562; Traun v. Wittick, 27 Alabama, 570. 
 White V. Yarborough, 16 Alabama, 109; Hunt v. Martin, 8 Grattan, 587. 
 
 All material allegations in pleading not denied are admitted. Cheever v. Miriok, 2 N. 
 Hamp. 376; Carpenter o. Briggs, 15 Vermont, 34; Briggs ». Dorr, 19 Johns. 95; Raymond 
 ■o. Wheeler, 9 Cowen, 295. A plea to the whole declaration, if insufficient as to any count, 
 will not be sustained. Clark v. Sehwing, 1 Dana, 333. But see U. States u. Willard, 1 
 Paine, 539. 
 
 A plea, which may be taken as true and yet some cause of action remain is bad; Fowler v. 
 Commonwealth, 1 Dana, 958. 
 
 (3) Lattin v. Vail, 17 Wend. 188; Grain v. Tates, 2 Harr. & Gill. 832, States Treasurer v 
 Holmes; 4 Vermont, 110. 
 
II. THEIR, QUALITIES. 524fl 
 
 and wounding, and afte^ards merely show that by virtue of a -writ he "• 
 arrested the plaintiff, but alleged nothing to justify the wounding, this is ^''^""^s- 
 bad on demurrer (/) (1). But these rules should be understood with this 
 qualification, that the part of the declaration which is professed to be, but 
 is not answered by the plea, is material and the gist of the action ; for 
 *where anything is inserted in the declaration merely as matter of ag-gra- [ *525 ] 
 vation, the plea need not answer or justify that, and the. answering the 
 matter which is the gist of the action will suffice (m). 
 
 A general charge ought to be answered in every part, but it is said to 
 be sufficient to answer a collateral issue in the words of the plaintiff («.). 
 Thus, in an action of waste in cutting twenty trees, the defendant ought 
 to plead that he did not cut the said trees, or either of them, or the tra- 
 verse would be too large ; though in debt on an obligation that he shall 
 do no waste, if the breach assigned is that he cut twenty oaks, it is suffi- 
 cient to plead that he did not cut the said twenty oaks modo et Jorma 
 («). A plea in bar to an avowry for rent for .£120 that the said £120 
 were not due, without saying " or any part thereof," is bad on demurrer 
 (;?). The points on this subject will be more fully stated when we con- 
 sider the nature of Traverses. 
 
 The fault of discontinuance in pleading may occur in a replication ; as 
 where a plea to the whole of an entire and indivisible claim is not an- 
 swered or noticed in tola by the plaintiff (9). 
 
 4thly. A plea in bar, unlike a plea in abatement, offers matter which is *">ly- A 
 a conclusive answer or defence to the action upon the merits. It is obvi- deiiy"or' 
 ous that such a plea must contain either, 1st, a traverse or denial of the confess 
 plaintiff's allegations ; or, 2dly, an express or implied admission that such ''"^ "■^"i? > 
 allegations are true, with a statement of matter which destroys their of givlna" 
 effect. In other words, a plea in bar must deny, or confess and avoid oo\ot and 
 the facts stated in the declaration (»•). Pleas in bar are not therefore "Especial 
 susceptible of any other division than, 1st, pleas of traverse or denial; am^'ntine 
 2dly, pleas by way of confession and avoidance. to the 
 
 Pleas in denial are either the general issue in those actions in which so general 
 general a traverse is admissible, or they occur in instances in which, there '^^"®' 
 being no general issue, as in covenant, &c., some specific fact is specially 
 disputed. The doctrine of Traverses will be discussed in a subsequent 
 part of the work. 
 
 The quality of a plea in confession and avoidance is more peculiar, and 
 demands particular attention. A plea of this description is either *in jus- [ *526 ] 
 iification or excuse of the matters alleged in the declaration ; as impris- 
 
 (Z) 1 Saund. 296, n. 1; 8 T. R. 299; 6 T. Worley o. Harrison, 2 Nev. & Man. 173. 
 
 R. 562; 7 Taunt. 689; 1 Moore, 420, S. C. (n) Cro. Eliz. 84; 3 B. & P. 348; Com. 
 
 (m) 1 Hen. Bl. 655; 2 Campb. 175; 1 Dig. Pleader, G. 15. 
 
 Saund. 28, note 3; 3 T. R. 2a7; 3 Wils. (o) Cro. Eliz. 84; Telv. 225; see 2 Saund. 
 
 20; 2 Wils. 313; Com. Dig. Pleader, E. 1. 5 b, c, d. e, when traverse the place al- 
 
 QutBre, whether a plea directly and express- leged. 
 
 Ij denying the facts alleged in one count (p) 3 B. & P. 348, 
 
 and wholly inapplicable to the other cause of (5) See 1 B. & C. 460, 4C5, 466; 2 D. & B. 
 
 action stated in the declaration, but without 471, S. C. ; and post, as to Traverses. 
 
 any introductory statement professedly Urn- (r) See Reg. PI. 59; 21 H. 6, 12; Tidd, 
 
 iling Us application to the first count, is to be 9th ed. 65?; 5 B. & C. 479; 4 B. & C. 457; 
 
 considered as a plea to that count only, or as Steph. on Pleading, 2d ed. 171. 
 
 an informal answer to the whole declaration, 
 
 (1) See Gates v. Lonnsbury, 20 Johns. 427. 
 
526 
 
 OP TBB SBVEBAIi PLEAS. 
 
 "• onment under a magistrate's warrant, or son assault demense in trespass ;' 
 QUAnnEB. Qj, j(. jg j^ discharge of the same action by subsequent matter, as accord 
 and satisfaction, or a release (s). It is observable that each of these 
 pleas admits the mere facts stated in the declaration, as that the defend- 
 ant committed the trespasses charged ; that the contract was made or 
 the debt was incurred, &c. Bat the matter which they allege by way of 
 defence defeats or avoids the legal effect of those debts, and disapproves, 
 if true, the plaintiff's right of action. As a part of this rule that a plea 
 must either traverse or deny, or confess and avoid, it was in a late case 
 held that a plea of discharge under an insolvent act, from liability to per- 
 form the promises laid in the declaration, must expressly confess such 
 promises to have been made, and this not hypothetically ; and that there- 
 fore a plea of discharge from the alleged promises, " if any such vjere 
 made" was demurrable (i). So, very recently, a plea of the statute of 
 limitations, alleging that the cause of action, " if any such there be," did 
 not accrue, &c., was bad on special demurrer (u) ; and yet it has beea 
 the course in various pleas, as in those to the jurisdiction, and in pleas in 
 abatement of non joinder, to introduce those words. 
 
 The principles of pleading, and now as we have just seen the express 
 rules (a;), require in general that matter in confession and avoidance 
 should be specially pleaded, and not be giveii in evidence under the gen- 
 eral issue or traverse (j/). The impotrant relaxation of or departure 
 from this rule, in many instances in assumpsit, debt on simple contract, 
 and case, has been already adverted to ; but we have shown that the de- 
 fendant, even in those actions, already had the option of pleading matter 
 in confession and avoidance specially (z). 
 
 Of giving Xu important rule of pleading is deducible from the principle that a 
 eo '■(«)• pigg^ jjj 13JJJ. pjygf traverse, or confess and avoid, the matter to which it is 
 applied, namely, that a plea in confession and avoidance must give Color ; 
 and on this rule chiefly depends the doctrine that a special plea, not plead- 
 ed as a general issue, but which is is so in effect, will be defective. 
 
 It is plain that a plea which shows new matter in avoidance oi; dis- 
 charge of the plaintiff's allegations is double and argumentative (6), if 
 it do not admit the apparent truth of those allegations as matter of fact. 
 [ *527 J There can be no occasion to adduce grounds for defeating the *operation 
 of disputed facts. The plea in avoidance must therefore give color to the 
 plaintiff, that is, must give him credit for having an apparent or prima 
 facie right of action, independently of the matter disclosed in the plea 
 to destroy it. 
 
 Of pleas Where the defence consists of matter of /aci, merely amounting to a 
 to°th'e"elE <^^'*^^^ of such allegations in the declarations, as the plaintiff would on 
 
 eral issue. 
 
 (s) See Com. Dig Pleader, 8 M. 12; Steph. 
 2a ed. 239, 210. 
 
 (t) Gould V. Lasbury, 1 Crotn. M. & Ros. 
 251; 2 Cowl. 707; sed quare, this has since 
 been doubted. 
 
 (ii) Margetts v. Bays, K. B. 16 Jan. Hil. 
 T. A. V. 1836. 
 
 (i) Ante, 518. 
 
 (j) Ante, 478, 480: Stephen, 2d ed. 19B, 
 199 
 
 (z) Ante, 480, 4 B. & C. 547; 1 M. &. P. 
 
 808; see Steph. 2d ed. 196 to 201. 
 
 (a) See a recent form of color, 1 Bing. N. 
 C. 484. 
 
 (6) As to these faults in a plea, see post ; 
 and anU, 226, 236, 287. 
 
 (c) Com. Dig. Pleader, E. 13; Bac. Ab. 
 Pleas, G. 8; 3 Bla. Com. 809; 1 M. & P. 
 294, 808; 4 B. & C 547; Stephen, 2d ed. 
 459. In 1 M. & P. 807, the Court complained 
 of the contradiction ia the books as to Trhat 
 plea amounts to the general issue. 
 
11. THEIR QUALITIES. 527 
 
 the general issue be bound to prove in support of his case, a special n. 
 plea is bad as unnecessary, and amounting to the general issue (1) ; first, of'g]'"^?' 
 because such special plea, if considered as a traverse, tends to needless color, 
 prolixity and expense, and is an argumentative denial and a departure 
 Irom the prescribed forms of pleading the general issue ; and secondly, if 
 viewed as a plea in confession and avoidance, it does not give color or a 
 plausible ground of action to the plaintiff. 
 
 Thus, in assumpsit, or debt on a simple contract, a plea of matter which 
 shows that no such contract was in fact made, is bad ; as a plCa in action 
 for the price of a horse, " that the defendant did not buy the horse" {d). 
 So in action of assumpsit against a defendant for the use and occupation 
 of a house " by A. his wife, at his request," a plea that A. was not the 
 defendant's wife is bad (e). And in trespass for taking personal property, 
 the defendant cannot plead property in a stranger or himself (/) because 
 that goes to contradict the evidence which the plaintiff must adduce on the 
 general issue in support of his case. So in trespass to land, the plaintiff 
 must prove upon the general issue his possession thereof at the time the 
 trespasses were committed (^) ; therefore a plea that a plaintiff " had no 
 such close" (A) is bad. And if in trespass for breaking and entering the 
 plaintiff's house, and taking " Ms" goods, the defendant justify as sheriff 
 under &. fieri facias against the goods of a third person, the plea will be 
 bad if it state that the defendant took the goods mentioned in the declara^ 
 Hon (i). So, where in a declaration for slander, the words set out im- 
 ported an unqualified assertion by -the defendant that the plaintiff was in-' 
 solvent, and in a plea of justification, the defendant only admitted that he 
 uttered words importing that he had mentioned the fact, on the authority 
 of a third person^ who was the author ; the Court held the plea bad, be- 
 cause it did not confess and avoid the charge laid in the declaration (A;). 
 In trespass for an *assault and battery, where the defendant pleaded that t *^8 J 
 he was riding a horse in the highway, and that his horse being frightened 
 ran away with him, and that the plaintiff was desired to go out of the 
 way, and did not, and the horse ran upon the plaintiff against the defeu'- 
 dant's will ; on demurrer, the plaintiff had judgment, because the defendant 
 had assumed to justify the battery, a,nd yet hd,d not confessed tbat which 
 amounted to a battery by himself; for if the horse ran away against the 
 
 (d) Vin. Ab. Certainty in Pleading, E. (g) Ante, 500. 
 
 15, cites Bro. Traverse, pi. 276; 22 Edw. 4, (A) 10 Hen. 6, 16; Stephen. 2 ed. 459; 
 
 29. See yarious other instances put, id. 459 to 
 
 (e) Chit. Rep. 642. 641. 
 
 (/) M. Kaym. 88, 89; 1 Vent. 249; 2 (i) See the forms,- post, vol. ili. 
 
 lev. 92; Cro. Eliz. 329. (Jc) 10 B. &. C. 263. 
 
 (1) Therefore the plea of nwl liel corporation to an action of assumpsit against a oorpor'." 
 ation, is bad on special demurrer, as amounting to the general issue. Bank of Auburn 
 ». Weed, 19 Johns. 800. Vide Kennedy ». Strong, 10 Johns, 289. Richards v. Cuyler, 2 
 Hall, 201; Potter v. Stanley, ID. Chip. 243; Burton «. Bostwick, Brayt. 195; Merritt ii. 
 Miller, 13 Vermont, 416; Thayer v. Brewer, 15 Pick. 217, 219; Martin v. Woods, 6 Mass. 6; 
 Gardner v. Webberj 17 Pick. 407. Little v. Bolles, 7 Halst. 171. So, in an action upon a 
 joint promissory note, plea that it was the separate note of the defendant, is bad Upon special 
 demurrer, as amounting to the general issue. Van Ness a. Forrest, 8 Cranoh. 30. See' 
 Wheeler v. Curtis, 11 Wend. 660. A plea of license in an action juare clausaih /regit, from 
 one having only a possessory right to the locus in quo, without giving color to the plaintifP^ ig 
 bad, as amounting only to the general issue. Underwood t>. Campbell, 13 Wend. 78. CoUett 
 V. Flinn, 6 Cowen, 466. Under the general issue, the plaintiff must prove his possession, and 
 the plea of license as there pleaded raised a question of poiSiSe^sittn only, and was therefore 
 bad. Id. 
 
 Y»h. I. 70 
 
°28 OP THE SEVERAL PLEAS. 
 
 ouALiHBs u ^'^ °^ *^® ^^*^^^' ^* """^^^ "°* '^® ^^^"^f ^•''^ ^"y *'°^°'' °^ reason, to be a 
 Of giving "attery in the rider ; and it was observed by the court, that if the plaintiff 
 color. had pleaded not guilty, this matter might have acquitted him upon evi- 
 dence (/). 
 
 The common allegation in a plea, by way of introduction, that the cause 
 of action laid in one count, and the cause of action laid in another count, 
 are one and the same, showing matter in discharge of one cause of action 
 only, seems to render the plea defective, as amounting to the general is- 
 sue (m). The fault in question is no ground of error; and it can it seems 
 only be objected to by a sjoeaW demurrer (w). It has even been said that 
 the only mode of taking advantage of the defect is to apply to the Court to 
 set aside the plea (o) (1) ; but it is diificult to imaging upon what princi- 
 ple the right of demurrer can be excluded ; and there are many instances 
 in which it has been exercised {p). 
 Of implied In the above instance the mere /ac^s are denied, and no question of law 
 color. ypQjj jj^gjj. effect is raised. Where the cause of action is avoided by matter 
 ex post facto, as payment, accord and satisfaction, &c. it may always be 
 specially pleaded (9). So, where the defence consists of matter of law, 
 where in other words the mere facts charged in the declaration are admit- 
 ted, and their legal operation is disputed by matter alleged in the plea, the 
 defendant need not plead the general issue, and the plea may be special. 
 In this case, from the nature of the defence, the plaintiff has an implied 
 color of action, bad indeed in point of law if the fact pleaded be true, but 
 which is properly referred to the decision of the Court (r). Thus, in as- 
 sumpit, the defendant may specially plead infancy, lunacy or coverture, 
 when the contract was made ; or illegality of consideration, as usury or 
 gaming'; or that the engagement was void, as not being in writing, accord- 
 [ "529 ] iug to the statute of frauds (s). So, a plea in assumpsit, for *goods sold, 
 that they were sold by A. as the plaintiff's agent, that the agent sold them 
 as his own with the plaintiff's privity, and that the defendant was not aware 
 of the real facts, and showing a debt from the agent as a set-off is good; 
 for this matter operates as a legal extinguishment of a debt not otherwise 
 denied (<). So, a plea in trover, that A. was possessed of and lo^^ the 
 goods, that B. found them, and gave ihem to the plaintiff, who lost them, 
 and that the defendant found them, and by the command of A. converted 
 them, was held sufficient, because it gave an implied color by confessing 
 the possession andproperty in the plaintiff against all but the lawful own- 
 er (u). 
 
 (I) Salk. 637; Ld. Raym. 38; 3 Wils. (s) 1 M. & P. 294, 808; 4 Bing. 470, S. C; 
 
 411. 4 B. & Aid. 595; sed vide 11 Price, 494; and 
 
 (m) ^nle, 413; Freem. 867 ; oiic post, as as to the replication, &o. see id; ante, 480, 
 
 to tiie Qim esleaden. 508, 1 Crom. & M. 239. At the trial of an 
 
 (n) See post as to the consequences of not action on a guarantee, the plaintiff nould 
 
 giving express color when necessary. be bound to prove a written contract, but still 
 
 (o) See Hob. 127; 1 Leon. 178; 2 Rol. Bep. it is not stated in the declaration that it was 
 140; Com. Dig. Pleader, Q. 14; Stephen, 2d in writing, and this maybe considered a de- 
 ed. 463. fence on matter of law. 
 
 ( p) And see 6 East, 582, 597; 2 Chit. Rep. (i) 4 B. & C. 547 ; 6 D. & R. 42, S. C. 
 642. (») Cro. El. 202, 539; 8 Co. 90 b; Com. 
 
 {q) 1 M. & P. 808; 4 B. & C. 552. Dig. Pleader, E. 14, ace; Latch. 186; 1 Leon. 
 
 (r) Tidd, 9th ed. 653. 177, semb. contra. 
 
 (1) Vid» Whittlesey v. Wolcott, 2 Day, 481. 
 
II. THEIR QUALITIES. 629 
 
 So, -without giving express color, the defendant may plead in trespass or "• 
 trover, that A. was possessed of the goods, not alleging they were his o^gl"^' 
 own, and sold them in market overt to the defendant ; or that B. took them color. 
 de quodam ig-noto, and waived them within the defendant's manor, where- 
 fore he took them : because such plea gives an implied color, and does not 
 deny but that the property was in the plaintiff; and the defendant is not 
 bound to show expressly in whom it was (x). So, in trespass for taking 
 corn, the defendant may plead that he took them as tithe or as wreck, 
 without giving express color (,?/). The plea of liberum tenementum may 
 also be considered as giving implied color (c), for it tacitly admits that iu 
 point oi fact, the plaintiff may have been in possession of the locus in quo, 
 (which, as in the case of personal property , prima facie entitles the plain- 
 tiff to maintain trespass against all the world but the rightful owner (a),) 
 but insists that in point of law such possession is unlawful (6). So in 
 trespass to lands, if the defendant aver that the plaintiff was seized, and 
 claim under a demise from him, express color need not be given (c) ; but 
 a plea of such demise " by virtue whereof the defendant entered and was 
 possessed," at the time of the trespasses, appears to be bad, as amounting 
 to the general issue (^d). The unnecessary addition of color appears to be 
 no ground of demurrer, for the introduction of superfluous words of form 
 will not vitiate (e). 
 
 But where from the nature of the defence, the plaintiff would have no Of exprtn 
 implied color of action, the defendant cannot plead specially any matter '^^°^- 
 which controverts what the plaintiff would on the general issue be bound to 
 prove without giving express color (/). Express color *is defined to be [ 530 ] 
 " a feigned matter pleaded by. the defendant in trespass, from which the 
 plaintiff seems to have a good cause of action, whereas he has in truth only 
 an appearance or color of cause." (^g-). Thus, in an action of trespass to 
 land, if the defendant plead a possessory title under a demise from a third 
 person, this plea, showing that the right of possession is in the defendant, 
 would, without giving express color, amount to the general issue (A) ; 
 for it goes to deny that the trespass was, as alleged in the declaration, 
 committed in the plaintiff's close, and shows the right of possession in 
 the defendant, although the possessory right and possession of the plain- 
 tiff are the very gist of his action. But if the defendant, after stating 
 his own title, allege, as i» usual, that the plaintiff entered upon his pos- 
 session " under color of a charter of demise for life made to the plaintiff 
 before the demise to the defendant," by the former proprietor of the es- 
 tate, from whom the defendant derives title, and " that the defendant re- 
 entered, &c.," this creates a question of law for the decision of the 
 Court, and by that means prevents the plea from amounting to the general 
 issue, and being matter of fiction or supposal, is not traversable (i). As 
 
 (a;) 10 Co. 90 b. East, 215; 3 Bla. Com. 309; Reg. Plae. 303; 
 
 ly) 10 Co. 88 a, &c.; Beg. PI. 304. Doo. Plao. Color; Doct. & Stud. lib. 2, c. ,58; 
 
 (2) 7 T. E. 354; 8 id. 403; see ante, 503, 3 Salk. 273; Bao. Ab. Pleas, I. 8; Com. Dig. 
 
 504. plead. 3 M. 40. Express color explained, 
 
 (a) Cro. El. 262; 1 East, 244. Stephen, 2d ed. 245; see the form and notes, 
 
 (6) As to this plea, see 1 Saand. 299 c. post, toI. iii. 
 
 (c) 8 Sallr. 273; Tidd, 9th ed. 653. (g) Bac. Ab. Trespass, I. 4. 
 
 (,i) Sty. 352; Steph. 2d edit. 410. (A) 2 Saand. 401; 7 T. B. 354; 8 Id. 
 
 (e) 1 East, 219; ante, 229. 406; 1 East, 215; Com.-Dig. Pleader, 8 M, 
 
 (/■) 2 Saund. 401 a; 10 Co. 88; &c.; 40,41. 
 Cro. El. 76; 8 T. B. 406. A« to color in (t) 1 East, 213. 216; 8 Salic. 273, 
 pleading in general, lea 10 Co, 88, &o.; 1 
 
mo 
 
 OF THE SEVERAL PLEAS. 
 
 "■ the plaintiff cannot trayerse the colorable title given hini, he must in his 
 Of ' {. I'eplication either traverse or avoid the defendant's title as alleged in the 
 color. plea, or demur if it be insuflScient in law. So, in trespass for taking 
 goods, if the defendant plead that A. was possessed of them as of his 
 own prop&r goods, and sold them in market overt to the defendant, the de^ 
 fendant must give express color, for this plea alleging that A. was pos- 
 sessed of his own property, amounts to a denial that the plaintiff had any 
 property in them, and therefore gives no color of a:ction : and the color 
 usually given in such case is that the defendant bailed the goods to a 
 stranger who delivered them to the plaintiff, from whom the defendant 
 took them (k). 
 
 The subtle and somewhat intricate doctrine of express color is not of 
 very frequent occurrence in pleading, and it seems can only arise at the 
 present day in trespass, and is rarely adopted except in trespass to land. 
 It is obviously founded on the pi-inciple that a plea in bar must deny, or 
 admit and avoid the facts charged by the plaintiff. The object of using 
 it is in general either to compel the plaintiff expressly to traverse or avoid 
 the defendant's title. If the plea consists of distinct allegations, showing 
 a lengthened descent from several successive persons or various deeds, &c. 
 constituting the defendant's title, the plaintiff can traverse one only of such ■ 
 [ *531 ] allegation or *deeds, &c. ; and thus he admits the rest, which often pre-> 
 sents an adequate reason for giving an express color in trespass to land. 
 And where the facts are admitted by both parties, and a legal question on- 
 ly arises on the title, the plea is useful and proper, as the question may 
 thus be put upon record and may be tried upon a demurrer,, and the ex- 
 pense of a trial will thus be avoided (i). 
 Form of It is impolitic unnecessarily to venture upon new forms of pleading in 
 
 *""'•>'• any case, but especially when the defendant has recourse to fiction, and so 
 technical a doctrine as that under consideration. The plea should give 
 the color just mentioned, namely, a " charter of demise to the plaintiff 
 for life," &c., averring that nothing passed thereby; as it is the form which 
 is, always used (m). It is a most important rule that the colorable title 
 given must be plausible or afford, a suppositious right ; — such as might in- 
 duce an unlearned person to imagine sufficient ; and yet it must be in legal 
 strictmess inadequate to defeat the defendant's title as shown in the plea, 
 (»). Thus, the prior charter of demise to the plaintiff for life, might to 
 a non-professional person, seem to confer a superior title, but there is this 
 legal vice that the charter, though a charter of demise for life, is not 
 pleaded as a feoffment, and doss not appear to have been accompanied 
 by livery of seisin (o). , The plea is bad if the title given be not even 
 specious, and be at the first blush manifestly insufficient ; on the other 
 hand, it is defective if the color given be in legal contemplation and strict- 
 ness sufficient to invest the plaintiff with the legal right; for in that event, 
 the defendant has^no legal title on his own showing (p). " The plea 
 ought to have four qualitjies ; first, it ougljt to be a matter of title doubt- 
 
 (&) 10 C. 90 b; see an inatanoe of a plea without livery, pleaded by way of coIoI^, 2 
 
 in such action, wljich was held deftotWe, as Eich. C. P. 413. 
 
 giving the plaintjflf a real right, viz. by (n) Bao. Ab. Pleas, I. 8; Com. Dig. Plead, 
 
 shpwipg a prior deed of gift to hi» from; the 3 M. 41 ; Keilw. 103 b. 
 party frjam whom defendant, claimed, Cro., (o) Doot. Plao. 73; IQ.Co. 89 b; Steph, 2d 
 
 Jac. 122. edit. 249. 
 
 (l) See Steph. on PL, 2d edit 247., (p) Doftt. PI. 73; 10 Co. 89 b; Steph. 2d 
 
 (m) See a form of a deed of feoffment edit. 2^0. 
 
II. THEIR QUALITIES. 531 
 
 ful to a jury, as where the defendant pleads, that the plaintiff, claiming "• 
 by color of a deed of feoffment, &c. that is sufficient, for it is a doubt «'''*"t«8- 
 to lay gents, if lands shall pass by deed only without livery {q) ; second- ooLfl""^ 
 ly, that color as such ought to have continuance, although it wants ef- 
 fect ; as if the defendant give color by color of a deed of demise to the 
 plaintiff for the life of ' J. S.' who it appears by the pleadings was dead 
 before the trespass, this is not sufficient, because the color doth not con- 
 tinue ; but the defendant may well deny the effect of it, viz. that the plain- ^ 
 tiff claims by color of a deed of demise ' to him for his life ;' whereas 
 nothing passed thereby : therefore, there is a difference between the con- 
 tinuance of the color and effect of it ; thirdly, it ought to be such a col- 
 or, as if it *wero of effect would maintain the nature of the action, as in [ •532 ] 
 an assize, (where the disseisin of a freehold is complained of,) color of a 
 freehold, (not of a demise for years,) ought to be given, &c. ; fourthly, 
 color ought to be given by the first conveyance, otherwise all the convey- 
 ance, before, is waived" (*■). Therefore, where the defendant derived a 
 title to himself by divers mesne cooveyances, and give color to the plain- 
 tiff by one who was last named in the conveyance, this was held insuffi- 
 cient, and he should have given color by him who was first named in the 
 conveyance (5) ; and in giving color under a feoffment, the word charter 
 or deed must not be omitted (t). The omission to give express color 
 when necessary will be aided if the plaintiff reply (m) instead of demur- 
 ring (a;) ; and it will, as a mere matter of form, be aided upon g-ewera/ de- 
 murrer (2/) ; and the defect is expressly rendered immaterial after verdict 
 by the statute 32 Hen. 8, c. 30 (z). We have before remariced, that as 
 the law allows the fictitious statement of a colorable title for a particular 
 purpose, such allegation is not traversable (a) ; and the giving unnecessary 
 color may be rejected as surplusage {b). 
 
 5thly. The fault of duplicity in pleading, which we have already con- ethly. 
 sidercd in examining the structure of, and as it affects a declaration, may M"*"'* 
 equally occur in a plea (c). Every plea must in general be single ; and ^"^ 
 if it contain two distinct matters, either of which would bar the action, and 
 each of which requires a separate answer, it will in general be subject to a 
 special demurrer for duplicity (1). Thus, if several outlawries be plead- 
 ed in the same plea to the same matter, or if son assault demesne, and a 
 
 (}) It should be shown affirmatively in (2<) Ld. Baym. 561,552. 
 
 the plea that it was a charter of demise for (x) Id. 
 
 life, or a feoffment without livery; for it (y) .ySjife, 529; 4 Ann. 0. 16, s, 1; 10 East, 
 
 seems that in pleading, the term "feoff- 363; Cro. Jac. 229. 
 ment," or M enfeoffed" means and includes (s) 1 Sauud. 228 c, 
 
 the necessary livery of seisin,, see ante, 221. (a) .Snie, 530; Steph. 2d ed, 250; Tidd, , 
 
 Co. Lit. 303 b; 2 Saund. 395 a, n. 13; Doct. 9th ed, 653, 664. 
 PI. 73. (A) Ante, 529. 
 
 (r) 19 Co. 91 b. (c) See ante, 226; and, the authorities cited 
 
 (s) 2 Rol, Rep. 140. id. 226 note (y). See Vivian v. Jenkins, 5 
 
 («) Id. . Nev. & Man. 14. 
 
 (1) Vide Kennedy v. Strong, 10 Johns, 289;, 20 Johns. 406; U. States v. Quraey, 1 
 Wash. C. C. 446 ; Craig v. Brown, Peters, C. C. 443. Duplicity in a plea cannot be taken 
 advantage of on a general demurrer. Walker v. Sargeant, 14 Vermont, 247; Franklin 
 Bank v. Bartlett, Wright, 741. Duplicity consists in alleging two or more distinct matters, 
 each of which WQuld, be, as effectual an answer as all., Lord w. Tyler, 14 Pick. 1 6; Dun- 
 ningi). Owen, 14 Mass. 157; Austin v. Parker, 13,. Pick. 222; Otis v. Blake, 6 Mass. 336, 
 335;;, Parker v. Parker,, 17 Pick. 286; Welch v,, Jamison, 1 Howard, (Miss.) 160; Benner 
 V. Elliot, 6 Blackf. 451 ; Calhoun v. Wright, 3 Scammon, 74. Haaker v. Brink, 4 Zabr. (N.. 
 Jer.) 833; Stanton v. Seymour, 6 McLean 267. A plea is not bad for dupliaitjn wbioh altegps 
 
532 OF PLEAS IN BAB, 
 
 J'- release, be relied upon in one plea to the same trespass, as either of these 
 OTAHTIE8. ^g„i(j defeat the action, the plea would be considered double (d). But the 
 "'^*" defendant is not, as before explained, precluded from introducing several 
 facts into one plea, if they be constituent parts of the same entire defence 
 and foim one connected proposition (1), or alleged as inducement to, 
 or as a consequence of another fact (e). Thus in detinue at the suit of a 
 feme, the defendant pleaded that after bailment of the goods to him by the 
 plaintiff, she married E. P., and that during such marriage E. P. released 
 to him all actions, it was objected that the plea was double, viz. property 
 in the husband by the intermarriage, and a release by hira ; but it was re- 
 r *533 1 ^°^^^^ °°*' ^° ^^ double, because he could not plead the release "without 
 '- -^ showing the marriage (/) (2). So it will be no duplicity to set out several 
 
 matters, as a will or deed, and a fine constituting a title ; although one of 
 those matters would defeat the action (g-). So, to a declaration in slander, 
 stating that the plaintiff had been guilty of fraud or felony, several offences 
 may be stated in a plea of justification, although it would not be necessary 
 to prove the whole. And at common law the defendant may plead to a 
 part of the declaration one ground of defence, and to another part a differ- 
 ent ground (i) ; and one defendant may plead one matter, and the other de- 
 fendant another matter to the same cause of action (k). So, a defendant 
 may plead in abatement to part, and in bar to another part, and may demur 
 to the residue (Z). The rule that a plea must be single also precludes the 
 defendant from pleading and demurring to the same part, especially as 
 such duplicity would draw the matter to a different inquiry ; the demurrer 
 to be tried by the Court, and the fact by a jury (w) (3). So, a plea confess- 
 ing and avoiding, and also traversing the same point, is in the nature of a 
 double plea (m). An executor, however, may and ought to plead several 
 judgments, &c. outstanding (o) : and in a plea of set-off the defendant may 
 rely on a debt on record, and a debt on simple contract, though one will cre- 
 ate an issue of law, and the other an issue of fact {p). The statute of Anne, 
 
 {d) Td.; Co. Lit. 304 a. See instance See 3 Campb. 866. 
 Vin. Abr. Double Pleas, A. 23; 1 M. & P. (/c) Com. Dig. Pleader, E. 2. 
 
 102, 112. (/) Ante, 458. 
 
 (e) Ante, 228. When defendant need not (m) H Co. 52; Bao. Abr. Pleas. N, 
 prove all he has alleged, 1 Taunt. 146. (n) 2 Ventr. 212; 3 Mod. 318; Co. Ent. 
 
 (/) Bac. Ab. Pleas, K. 2; Moore, 25, pi. 504; ante, 627. 
 85, Dalis. 30, pi. 9; 1 M. & P. 112. (o) 1 Saund. 336 c. 337, and notes. 
 
 (g) 1 M. & P. 102. ( p) 1 East, 870. 
 
 (i) Bac. Ab. Pleas, K.i; Co. Lit. 304 a. 
 
 severul facts dependent on each other, tending to one point, and triable upon one issue. State 
 Bank v. Hinton, 1 Devereux, 397; Torrey i>. Field, 10 Vermont, 353. 
 
 (1) Vide Strong v. Smith, 3 Gaines, 162. Cooper v. Herrmanoe, 8 Johns. 318. Patcher 
 V. Sprague, 2 Johns. 462. Thomas v. Rumsay, 6 Johns. 83. Bradner v. Demick, 20 
 Johns. 404. Tuttle «. Smith, 10 Wendell, 886; Salterlee v. Sterling, 8 Cowen, 133; Tubbs 
 II. Caswell, 8 Wendell, 130; Waddams v. Burnham, 1 Tyler, 232; Torrey v. Field, 10 Ver- 
 mont, 863. 
 
 (2) To a declaration in debt against a sheriff for an escape, the defendant pleaded an 
 involuntary escape and the return of the prisoner into custody before suit brought, and 
 also that the prisoner was discharged under the act for the relief of debtors, with respect 
 to the imprisonment of their persons ; and the plea was held good. The defendant could 
 not have pleaded the involuntary escape and return before suit brought, without also al- 
 leging that the prisoner was at the time of the plea pleaded in his custody. And if he 
 had relied solely on the discharge, then at the trial he might have been surprised, and 
 charged for the escape. So that both facts were necessarily blended in his defence, and went to 
 one point, viz. an escape for which he was not responsible. Carrie ii. Henry, 2 Johns. 488. 
 Potter V. Titoomb, 1 Fairf. 68. 
 
 (8) Post, 666 not*. 
 
II. THEHl QUALITIES. 633 
 
 allowing several pleas (q^ , and the particular effect of which will hereafter n- 
 be considered, does not aid a duplicity in one and the same plea, though it a^^^nts- 
 allows of different grounds of defence being stated in different pleas. Du- 
 plicity can only be objected to by special demurrer, and the particular 
 duplicity must be distinctly pointed out (r) (1) ; and if the plaintiff do not 
 demur, he must reply to both material parts of the plea (s). 
 
 6thly. A plea in bar must also be certain {t}, or it will be defective upon 6thly. 
 demurrer (m). We have already attempted to define the different degrees ^"st ^e 
 of certainty in pleading, and to show the application of each, and we have °®'^'*"'* 
 seen that it is a general rule that the minor degree of certainty, viz. that 
 to a y:ommon intent, that is, if the matter be clear enough according to the 
 natural sense of the words used (a;), is sufficient in a plea in bar («/) (2). 
 Thus, in debt on bond conditioned to procure *A. S. to surrender a copy- [ *534] 
 hold " to the use of the plaintiff," a plea that A. S. surrendered and releas- 
 ed the copyhold to the plaintiff in full Court, &c. and the plaintiff accepted 
 it, without alleging that the surrender was to the plaintiff's use, is sufficient; 
 for this shall be intended {z). So, in debt on bond conditioned that the 
 plaintiff shall enjoy certain land, &c., a plea that after the making of the 
 bond until the day of exhibiting the bill the plaintiff did enjoy, is good, 
 though it be not said that always after the making until, &;c. he enjoyed, for 
 this shall be intended (a). 
 
 There, however, appear to.be some instances in which greater certainty 
 is necessary in a plea than in a declaration. Thus, in a declaration on a 
 promise to pay the debt of another in consideration of forbearance, it is not 
 necessary to show that the promise was in writing, according to the statute 
 of frauds, but it is said to be otherwise in a plea (Z>). So, we have seen 
 that in a declaration claiming a right of way or other easement, it is suffi- 
 cient to state that the plaintiff by virtue of his possession of a messuage, &c. 
 is entitled to such easement, without setting forth the particulars of the 
 plaintiff's title; but in a plea justifying an entry into land, &c. in respect 
 of such easement, it is necessary to set forth the right by prescription or 
 grant, <fec. (c). And in trespass, where the defendant justifies under a writ, 
 warrant, precept or any other authority, he must set it forth particularly 
 in his plea, and it is not sufficient to allege generally that he committed the 
 act complained of by virtue of a certain writ or warrant, directed to him, 
 
 ((?) 4 & 5 Ann. c. 16. (j/) Id. And see 1 Saund. 49, n. 1; 346, 
 
 (r) 1 Saund. 337 b, note 3; Doctr. Plac. n. 2; Willes, 62. As to an ungrammatioal 
 
 147; Bac. Ab. Pleas, K. 1; Com. Dig. Plead- averment, 13 Price, 172. 
 
 er, E. 2; 1 B. & P. 415, 416. (s) Cro. Car. 6. 
 
 («) 1 Ventr. 272. . (ra) Cro. Car. 495. 
 
 (0 Com. Dig. Pleader, E. 5, C. 41. E. 7, 8, (6) Ante, 222, 303. Sed guiere and vide 2 
 
 9,10,11, per tolum. B. & B. 862.' But there the demurrer was 
 
 (u) See ante, 286; 3 Bing. 61. general. 
 
 (x) Ante, 238. See Steph. on Plead. 380; (c) Artie, 380; 3 T. B. 768; 4 Id. 719. 
 2d ed. 421,423. 
 
 (1) Vide Currie v. Henry, 2 Johns. 433. 
 
 (2) Rookfrller v. Donnelly. 8 Cowen, 623; Hildreth v. Baker, 2 .Johns. Ca. 339; Spencer v. 
 Southwick, 9 Johns. 314; Van Ness v. Uamilton, 19 Johns. 344. The same degree of certainty 
 is required in notices of special matter to be given in evidence under the general issue, provided 
 for by statute in some of- the States. Washburn v. Mosely, 22 Maine, 160; Chase v. Fisk, 16 
 ib. 132; Bricket ». Davis, 21 Pick. 401; ante, 233 in note, 473, 474 in note; liangley v. Web- 
 ster. 11 N. Hamp. 299. 
 
 But see Fuller v. Rood, 8 Hill, 258; Bissell v. Corawell, 24 Wendell, 854; Edwards v. 
 Clemens, 24 Wendell, 480; Chamberlain v. Gorham, 20 Johns. 746. 
 
°^* Of pleab in bar. 
 
 11. 
 
 QDAIIIIES. 
 
 « „„,. ^^^ ^? 'W'^st set It forth specially (3), and the defendant Ought further to 
 
 Certaioty. ^^^^ I" "^^ P^°^ t*i^* ^^ l^as substantially pursued such authority (d). And 
 a justification in trespass "as servant" must also state that the act was 
 done " by the command " of the principal re). So in a declaration on a 
 deed, whether in debt or covenant, it is sufficient in setting out the deed 
 to allege that " U was thereby witnessed " that, &c., (testatum exislit) ; but 
 in pleas and avowries the deed must not be stated by way of recital or argu- 
 ment (/), but the neglect of this rule can be objected to only by a special 
 demurrer (^). The rules with regard to the mode of setting out a deed in 
 its words, or according to its legal import or substance, have already been 
 explained (A). Where the defendant states his right only as inducement 
 or conveyance, so much certainty is not required (i). Thus, it is suflffcient 
 [ *535 ] *to allege in a plea to a declaration in trespass, that the defendant was 
 possessed of a close, from which his cattle escaped into the close of the 
 plaintiff, in consequence of the defect of a fence which the latter ought to 
 have repaired (/I-). 
 
 The doctrine of certainty in pleading is open to a very important excep- 
 tion, applicable to pleas as well as other pleadings, namely, that a general 
 mode of pleading shall often be permitted where the matter is of so intri- 
 cate and complicated a nature, and embraces such a variety and extent of 
 minute circumstances, that a particular statement would cause great pro- 
 lixity(0(l). 
 
 A plea of performance of a condition or covenant should in general show 
 specially the time, place, and manner of performance of the specific mat- 
 ters required to be done : and it is not in general sufficient to aver merely 
 that the defendant "performed the matter " or " paid the money," <&c. (m). 
 Thus, if the condition be to pay £5 to A. and £10 to B. as each attains 
 twenty-one years of age, the plea must show when each came of age, and 
 that each was then paid ; not that the defendant paid the sums when they 
 came of age (w). So, if a bond be conditioned for the performance of a 
 specific act, as that the defendant should indemnify the plaintiff against a 
 
 , ((i).Co. Lit. 283 a, 308 b; 1 Saund. 298, n. (S-) 1 Saund. 346 e, n. 2. See anothgrrea- 
 
 1. When a return of the process must be son assigned for this instance, Stephen, 358, n. 
 
 shown, 5 B, & C. 488. p. 2d edit. 
 
 (e) Chubb and Mallock,Hil.TerUi, 61 Geo. (Z) jinie, 235. The words "reasonable" 
 
 8, K. B. i MS. and "seasonable times of the year," will of- 
 
 (/) 1 Saund. 274, u. 1; Lord Kaym. ten sufSce yer sc on this ground, 8 Bing. 61, 
 
 1589; 1 Leon. 242; Com. Dig. Pleader, E. 65, &c. 
 
 8; Bac. Ab. Pleas, L 5; and see 8 Ring. (m) 1 Lev. 308; Cota. Dig. Pleader, E. 26; 
 
 256. 2 W. 38; 1 SsLund. 116, n. 1; Steph. 2d edit. 
 
 (g) 1 Saund. and Conl. Dig. ubi supra. 382. 
 
 (A) .anit, 395. (n) Cro. Jao. 359. 
 
 (0 Jl/ite, 2Q1. 
 
 (3) Vide Stoyell i). Westoott, 2 Day, 418. Cruger v. Cropsy, 8 Johns. 242. A plea by a 
 defendant who had been discharged under the act for the relief of debtors, with respect to the 
 imprisonment of their persons, that he had been discharged out of custody by dueeourseof lale, 
 is bad. Currie v. Henry, 2 Johns, 433. 
 
 (1) Vide Postmaster General U. S. v. Cochran, 2 Johns. 415, 416; Hughes v. Smith, 5 
 Johns. 168; Frary v. Dakin, 7 Johns. 79. In setting forth the proceedings of an inferior 
 court or magistrate, (for instance, in pleading the discharge of an insohent debtor,) it is 
 only necessary to set forth so much as was sufficient to give the court or magistrate juris- 
 diction, and then to state that taliler processum est. such proceedings were thereupon had, 
 that a certain judgment was rendered ; or that the defendant was discharged from his debts. 
 Service v. Hermanoe, 1 Johns. 91; Peebles v. Kittle, 2 Johns. 363; Frary ». Dakin, 7 Johns. 
 75; Cantillon i). Graves, 8 Johns. 472; Crugeru. Cropsy , 3 Johns. 242; Roosevelt r. Kellog, 
 20 Johns. 208; Smith ». Mumford, 9 Cowen, 26-, Wheelet «. ToWnsend, 8 Wendell, 247; 
 Oleaveland v. Rogers, 6 ib. 438. 
 
II. THEIR QUALITIia. 635 
 
 certain liability lie was under to a third person, " by paying the latter that «• 
 sum," the plea will be equivocal and uncertain, and therefore insufficient if ce'ita^ut^' 
 it merely state that the defendant " indemnified the plaintiflf " without al- 
 leging a payment of the money (o). Where, however, the thing required 
 to be performed includes matter of the multifarious nature alluded to, there, 
 to prevent inconvenient prolixity, a general form of plea shall be allowed. 
 Thus, in debt on bond to pay over " from time to time all such monies as 
 he should receive, &c." a plea that the defendant paid over all such mon- 
 ies as he received is good, without showing when and of whom he received 
 each particular sum ( p). 
 
 As well in virtue of the rule that less particularity is required in cases 
 where excessive prolixity is thereby avoided, as in consequence of the 
 principle that it is for the plaintiff complaining of the breach of the condi- 
 tion of a bond, to show on the record in what instances it has been violat- 
 ed, it is competent to a defendant, in an action on a bond conditioned fot 
 the performance of covenants of an affirmative nature, contained in another 
 instrument, and not set out in the condition, to plead generally " that he 
 hath performed all and singular the said *covenants, &c. according to the [ *536 ] 
 condition, &c. (jq). In this case therf is no occasion to allege a specific 
 performance of each of the covenants in detail, and it is for the plaintiff to 
 show in his replication a specific breach of such of the covenants as'he 
 contends have been broken (r). Tt is plain, however, that if any of the 
 covenants are of a negative nature, viz. that the defendant shall not per- 
 form an act, or that in the alternative or disjunctive, a general plea that the 
 defendant has performed such covenants as illogical and argumentative in 
 the first instance, and in the second is ambiguous : and is therefore defec- 
 tive (s). In these cases the plea of performance should be more specific, 
 viz. that the defendant " did not," as regards the negative covenant, 
 " commit the act forbidden," and as respects the covenant to perform one 
 thing or another, that he performed one of those matters, showing which of 
 them was completed {t). Mispleading in these instances must be pointed 
 out by a special demurrer, and is not otherwise objectionable (m). An ob- 
 ligor, who binds himself to perform certain works according to a specifica- 
 tion, and other detailed and working drawings to be furnished during the 
 progress of the works, with power for the obligee^ by his surveyor, to di- 
 rect additions or omissions, must in a plea of performance, quoad such 
 parts in which no orders were given by the surveyor to vary and deviate 
 ' from the original plan, show an authoritji in the surveyor to give such di- 
 rections, or aver that the deviation or variation was an omission or addi- 
 tion (jjS). The plea of wow «^a»iwt/?ca<M5, in the general form, applies to 
 cases where the condition is general to indemnify or discharge the plaintiff 
 from any damage by reason of a certain thing, as the ordinary case of a 
 bastardy bond, &c. (jf^. 
 
 In a recent case («) where, in replevin, an avowry was made in respect 
 of a right in common claimed by the corporation of Alnwick, under a 
 
 (0) 1 B. & P. 638. See other similar in- (s) Id.; Steph. 2d ed. 409, 410. 
 
 stances, Steph. 2d ed. 406; 1 Saund. 117 n. (<) Jd. ; Cro. Eliz. 233; 8 T. R. 280} 2 
 
 1. Taunt. 278. 
 
 ( p) 1 Sid. 334; Cro. Eliz. 749. («) Id. 
 
 \q) 2 Saund. 403 b; 410, n. 3; 1 Saund. (x) 1 T. & J. 37. 
 
 65, 117, n. 1; 4 East, 340. Seethe form, (y) See post, vol. iii.; 2 Saund. 84; 1 
 
 post, vol. iii.; 2 Steph, 2d. 407. Saund. 117, n. 1; 1 Hen. Bla. 253. 
 
 (r) Id.; 5 Taunt. 386; Cowp. 578. (a) 3 Bing. 61. 
 
 Vol. I. 71 
 
5g@ 
 
 OP PLEAS IN EAR. 
 
 QtrAimEs ^^^^^ ^'"°™ ^^^ ^^ ^^^^^ ' ^^^ *^® plaintiff pleaded that the corporation 
 Certainty! ^^^ heen accustomed to appoint a reasonable number of herds for, amongst 
 other things, superintending the common and cattle thereon, and also to 
 appoint for the pains of each herd a reasonable and proper number of stints 
 of each such herd to be depastured upon the common ; the Court held that 
 the plea in bar was good after verdict, and Best, C. J., and Burrough, J., 
 appear to have been of opinion that it would not have been bad on demur- 
 rer, because the allegation could not have been made with greater certain- 
 ty, as the reasonableness of the number of herds must vary at times. 
 [ *537] *Where the covenant is to do some act of record (a), or any matter of 
 law, as to convey, discharge an obligation, ratify or confirm &c., perform- 
 ance must be pleaded specially ; because being a matter of, law to be per- 
 ftrmed, it ought to be exhibited to the Court, who are judges of the law, 
 to see if it be well performed, and not to a jury, who are judges only of 
 the fact (6). 
 
 General pleading is not allowed in a plea justifying the truth of a libel 
 or slander (c). Therefore where a defendant pleaded " that the plaintiff 
 had been illegally connected with a gang of swindlers, and had been guilty 
 of defrauding divers persons," without stating the particular instances of 
 fraud, and thereby following the terms of the libel, the plea was held bad 
 on demurrer (rf) (1). So, where a libel charged an attorney with gener- 
 al misconduct, viz. gross negligence, falsehood, prevarication,, and exces- 
 sive bills of cost, in the business he had conducted for the defendant, it was 
 held that a plea in justification, repeating the same general charges, with- 
 out specifying the particular acts of misconduct, was insufficient on special 
 demurrer ; although it was objected that the charge related only to pri- 
 vate transactions between the parties themselves of which it might be pre- 
 sumed the plaintiff was conusant (e). And in a recent case (/), Mr. 
 Baron Wood strongly reprobated general pleas of justification aspersing 
 the plaintiff's general character, without disclosing instances of misconduct, 
 and said it was the duty of the plaintiff to demur to them : and that by so 
 doing the plaintiff did not admit the truth of the matters thus indefinitely 
 justified. Where, however, the charge contained in the slander is in |tself 
 specific, the defendant need not further particularize it in his plea : as 
 where the words were, " he stole two sheep of J. S." a plea thaitthe plain- 
 tiff " stole the said sheep," is sufficient (g-). 
 
 So, a general plea of usury, not stating the particulars of the contract, 
 the time of forbearance, or the sum to be forborne, is bad on special de- 
 murrer (A). But a general plea that a deed was " obtained by the plain- 
 tiff by fraud and misrepresentation," has been holden sufficient, on the 
 ground that fraud usually consists of a multiplicity of circumstances, and 
 therefore it might be inconvenient to require them to be particularly set 
 
 (o) Co. Lit. 308b;Bao. Ab. Pleas, 1. 3; 665; 3 B. & C. 566. A plea justifying aj 
 
 Show. P. C. 97. I'lifil in respect of the occasion on -which it 
 
 (J) 7^. was published, must also be specific as to 
 
 (c) 1 Saund. 244 a, 244 b, note (m) ; 1 the names of third persons, &o.i 1 M. & Sel. 
 Stark. iSlander, 2d ed. 478. See as to gen- 304. 
 
 eral pleag justifying a libel, as being a correct (/) 11 Price, 235, 255, 277, 278. 
 
 report of a trial. &o. ante, 496. (g) Bro, Action,, sur Cas. 27 H. 8, 22, pi. 
 
 (d) 1 T. R. 748; 3 B. & P. 284; 11 Price, 8; 1 Rol. Ab. 87. 
 235, 273. (A) 2 M. & Sel. 877. 
 
 (e) 1 Taunt. 543; and see 2 Chit. Rep. 
 
 (1) Van iNess u. Hamilton, 19 Johns. 349. 
 
U. OP THEIR QUALITIES. *638 
 
 forth (i) (1). In trespass for an assault and imprisonment, a plea justif7- n- 
 ing on the ground that a felony had been committed, and *that there was ''''•"'™™- 
 reason to suspect the plaintiff, must set forth the facts or reasons which 
 gave rise to and justify the suspicion (&). And in a plea justifying a tres- 
 pass to the person, every part of the matter which the plea professes to an- 
 swer must be stated with great precision, as if a wounding or handcuiSng 
 be justified under a latitat, &c., an attempt to rescue, or other resistance, 
 must be fully stated (/). And if an officer justify breaking an inner door 
 of a house, in order to search for and arrest a party, it must be alleged 
 that he demanded the key, or that no one was present of whom such de- 
 mand could be made, and it isnot sufficient to say that the door was lock- 
 ed so that without breaking open the same the defendant could not enter, 
 without alleging the particular circumstances which, rendered the break- 
 ing necessary (m). And a plea in trover for taking a ship, that the defen- 
 dant as captain^of a man-of-war seized it " as a prize," without showing 
 how it became such, is demurrable (w). So, in pleading matters in ex- 
 cuse, all the circumstances should be shown (o) (2). 
 
 Necessary circumstances will, however, in general, bo intended in a 
 plea ; as if a feofment be pleaded, livery need not be alleged, for it shall 
 be intended, and is included in the -wovA. feoffment or enfeoffed (p) ; and 
 it is not requisite to have so much certainty in pleading a matter which is 
 only conveyance or inducement (5), or matter in the negative (r). And 
 in a plea, as well as a declaration, less certainty is required in stating a 
 matter which is more properly and peculiarly within the knowledge of the 
 opponent (s). 
 
 With regard to the certainty required in a plea in the statement of the ^'t^'^^ 
 time and place when and where material facts have happened, we shall and place, 
 hereafter see that it was an ancient rule that the time and place mention- 
 ed in the declaration should be adhered to, unless it be necessary for the 
 defence to vary therefrom (<). Matter of discharge, as a release, &c., 
 must be shown to have taken place after the trespass, &c. (m), and at 
 common law in pleading payment of a bond, &c., it was necessary to show 
 that it was made on a named day (z). Unless a particular place was ma- 
 terial to the defence, it does not appear to have even been necessary to 
 state any place where the facts happened (3) ; for though a distinction was 
 formerly taken between a plea in abatement and a plea in bar, a venue was 
 afterwards deepied to be necessary in both (y). The doctrine of venue, 
 was clearly and correctly stated by Byre, C. J., in llderton v. llderton (ar), 
 who said, " that as defendants, with respect to transitory matters, are [ "SSO ] 
 obliged to lay the venue in their plea in the place laid in the declaration, 
 and since the statute (a) has directed that the jury shall come de corpora 
 
 (i) 9 Co. 110. Per Lord EUenborough, 2 346, n. 2; ante, 291. 
 
 M. & Sel. 378; but see 1 Tyrw. & Gr. 87. (r) Com. Dig. Pleader, E. 11. 
 
 (fc) Snte, 501, 502. (s) AnU, 222, 234, 388. 
 
 {I) 1 Saund. 296, note 1 ; 8 T. E. 299; 4 (<) 2 Saund. 5, note 3. 
 
 B. & C. 596. (u) Plowd. 46. 
 
 (m) 3 B. & P. 223. Sed vide 3 Lev. 92. (x) Plowd. 104; Com. Dig. Pleader, E, 6. 
 
 (n) Carth. 31. (j) 1 Saund. 8 a, note 1. 
 
 (0) Bac. Ab. Trespass, 1. \z) 2 Hen. Bla. 161. 
 ( p) Com. Dig. Pleader, E. 9; ante, 221. • (o) 4 Ann, c. 16,8. 1. 
 (g) Com. Dig. Pleader, E. 10; 1 Saund. 
 
 (1) But see Slack v. MoLagan, 16 Dlinois, 242; where it was held that in pleading, the %tB 
 eomBtitating an alleged fraud must be set forth. So in Abraham v. Qray, 14 Arkansas, 801. 
 
 (2) Vide the King v. Bridekirk, 11 East, 304. 
 
 (3) Ace. Thomas v. Bumsay, 6 Johns. 33, 34; Fruman v. Haskin, S Gaines, 378. 
 
dS9 
 
 OF PLEAS IN BAR. 
 
 aOAUTIES. 
 
 Certainty, 
 
 7thly. 
 Mast be 
 direct and 
 positive, 
 and not 
 argamen- 
 tative. 
 
 [*540] 
 
 comitatus, the law of venues will be found to be very substantially altered, 
 and to lie in a narrow compass, and the distinction between laying no venue 
 at all in a plea, and being obliged to lay the same venue as in the declara- 
 tion, will be a distinction without a difference ; and the principle now is, 
 that the place laid in the declaration draws to it the trial of every thing 
 that is transitory, and it should seem that neither forms of pleading, nor 
 ancient rules of pleading established on a different principle ought now to 
 prevail" (6). We have seen that the recent pleading rule, Hil. T. 4 W. 
 4, reg. 8, orders that no venue shall be stated in the body of the declara- 
 tion, or in any subsequent pleading (c), but provides that in cases where 
 local description is now required, such local description shall be given (rf)t. 
 
 A plea need not state facts of which the Court will ex officio take no- 
 tice (e). 
 
 Tthly. "We have already seen that pleading is a statement of facts, and 
 not a statement of argument : it is therefore a rule that a plea should be 
 direct and positive, and advance its position of fact in an absolute form, 
 and not by way of rehearsal (/), reasoning, or argument (1), which would 
 lead the fact to be collected by inference and argument only, and thereby 
 tend to create unnecessary prolixity and expense {g). H scire facias be 
 brought against a parson for the arrears of an annuity recovered against 
 him, and he plead that before the writ brought he had resigned into the 
 hands of the ordinary, who accepted thereof, this plea is argumentative, 
 for he should have pleaded directly that he was not parson on the day of 
 the writ brought, instead of merely pleading facts from which that conclu- 
 sion was to be drawn (A). A plea in debt for an escape that " if the 
 party escaped, he escaped without the defendant's knowledge, and return- 
 ed, &c." is bad (i). So, a surrender by operation of law should be plead- 
 ed as a surrender, and not merely circumstantially ; thus, if a surrender be 
 by acceptance of a new lease, it is not sufficient to say " that the lessee 
 being possessed under a former lease, the lessor demised to him," but the 
 plea should be that the lessee " surrendered," and then *that the lessor 
 demised, or that the lessor entered and demised {k'). In trespass for tak- 
 ing goods, a plea that the plaintiff " never had any goods" is argijmen- 
 tative and therefore bad (/). And in a late case it was held that a plea 
 to debt on a bail bond that there was no proper affidavit of debt made and 
 filed of record before issuing the process against the bail, on the ground 
 that issues tendered in pleading must not be alleged argumentatively, but 
 in terms on which a djrect issue can be taken (m). 
 
 (i) 1 Saubd. 8 a, note 1. 
 
 (e) But the unnecessary statement of ve- 
 nue in a plfea according to Harper v. Champ- 
 neys, 2 DowL 680, would not be ground 
 of demurrer; and see Charnook's Kales, 
 136, n. 
 
 (d) Id. ibid. 
 
 (e) Jlnte,2U. 
 
 if ) The testatum exiitit, in setting out a 
 deed in a plea, seems incorrect on this 
 ground. See Stephens, 2d edit. 431 ; ante, 534. 
 
 {g) Ante. 286, 287; Co. Lit. 303 a, 304 
 a; Com. Dig. Pleader, E. 3; 6 East, 507; 
 Hob. 295; see Steph. on PI. 1st edit. 884; 
 2d edit. 426, where some excellent instances 
 are given relating to this quality of a plea. 
 
 (ft) 2 Anders. 179, 180; Bac. Ab. Pleas, I. 
 5. 
 
 (i) 1 B. & P. 413. 
 
 (fe) Com. Dig. Surrender, N. 
 
 (/) Doct. PI. 41 ; Dyer, 43 a. 
 
 (m) Hume v. Liversedge, 3 Tyrw. 237. 
 
 (1) Vide Fletcher v. Peck, 6 Cranoh, 12J ; Spencer v. Southwick, 9 Johns. 313; 10 Pet. S. 
 C. 343; Savery v. Joe, 4 Wash. C. C. 140. The Steuben County Bank v. Mathewson, 5 Hill, 
 249; Church v. Gilman, 15 Wendell, 650; Dyett v. Pendleton, 8 Cowen, 727; Fidlerw. Delevan, 
 20 Wendell, 67; Atwood v. Caswell, 19 Pick. 498; Austin j,. Parker, 13 Pick. 222; Bean w. 
 Farnham, 6 Pick. 269; Spear v. Bicknell, 5 Mass. 125; Rakes v. Pope, 7 Alabama, 161; Hurst 
 V. Purvis, 6 Blackf. 557. 
 
 t See American Editor's Prefiioe. 
 
II. OF THEIE QUALITIES. 640 
 
 Special pleas which amount to the general issue, without professing to be "• 
 so, seem to be defective chiefly on account o£ their being opposed to the rule cwtai™' 
 under consideration (re). The general rule that deeds and other matters 
 should be pleaded according to their legal effect and meaning (o), seems 
 also to be partly founded on the maxim that pleading should not be circui- 
 tous and argumentative. This fault sometimes occurs in a traverse, as will 
 be explained when we consider the nature of the Traverses. An argumen- 
 tative plea is aided after verdict, and upon a general demurrer (p) (1). 
 
 8thly. Every plea should be so pleaded as to be capable of trial, and ^f'^^y- 
 therefore must consist of matter of fact, the existence of which may be eapable^of 
 tried by a, jury on an issue (2), or the sufficiency of which as a defence trial, 
 may be determined by the Court upon demurrer (3) ; or of matter of record 
 which is triable by the record itself (9). And if fact b^ improperly con- 
 founded or mixed in the plea with matter of law, so that it cannot be tried 
 by the Court or jury, the plea is bad ; as if the defendant plead that A. 
 lawfully enjoyed the goods of felons, it will be bad ; for the jury cannot 
 determine whether he lawfully enjoyed, nor the Court whether he vafact 
 enjoyed, and the plea should have stated the particular facts and title by 
 virtue of which A. did enjoy (r). So, if the condition of a bond be that 
 the defendant will show a suffi,cient discharge of an annuity, it seems that 
 it cannot be pleaded merely that he showed a sufficient discharge ; for the 
 jury cannot try whether it is sufficient, and he ought to show what discharge 
 he gave, in order that the Court may judge whether it was sufficient (.s). 
 But where the effect of the words presents a matter triable, it is sufficient, 
 though according to the precise words it would not be triable ; as in cove- 
 nant for quiet enjoyment free from arrears of rent, a plea that he delivered 
 money to the plaintiff with intent that he should therewith discharge the 
 arrears will be sufficient, though thfe intent is not triable, for it is equivalent 
 to the allegation that the *defendant delivered the money to pay (<) . A [ *541 ] 
 defect in this respect in a plea may be aided by the plaintiff's taking issue 
 upon a triable point ; but if he should take issue upon an immaterial mat- 
 ter, it might be necessary to award a repleader. 
 
 9thly. Every plea should be true and capable of proof, for as it has stWy. 
 been quaintly said, " truth is the goodness and virtue of pleading, as cer- true' and 
 tainty is the grace and beauty of it," and if it appear judicially to the must not 
 Court on the defendant's own showing that he has pleaded a false plea, be too 
 this is a good cause of demurrer (m). Thus, where the defendant pleaded *'^^®" 
 to an action of debt upon bond conditioned for performance of covenants 
 contained in an indenture, of which he made a profert that there were no 
 covenants contained in the indenture, and upon oyer by the plaintiff it ap- 
 peared that the deed did not contain divers covenants on the part of the 
 
 (ra) See ante, 526. (r) 9 Co. 25. 
 
 (0) Ante, 305; 2 Saund. 97 b, note 2; Bac. (s) 9 Co. 25 a; ante, 225, and 213, 214. 
 
 Ab. Pleas, 1. 7, Steph. 2d edit. 432. ^ (i) 4 Mod. 239, as to traversing a local jus- 
 
 (p) Com. Dig. Pleader, E. 3; Alleyn, 48; tifioation; 2 Saund. 6 b, 0, d, e. 
 
 2 Saund. 319, n. 6. («) Hob. 295, Bac. Ab. Pleas, G. 4; 1 
 
 (g) Co. Lit. 303 b; Com. Dig. Pleader, E. Campb. 176; 2 Wils. 394; Stephen, 2d ed. 
 
 84; 9 Co. 24 b, 25 a; 1 Marsh. 207. 493. 
 
 (1) Vide Spencer v. Southwiek, 9 Johns. 313, 
 
 (2) Van Ness v. Hamilton, 19 Johns. 871. 
 
 (3) Vide Frary v. Dakin, 7 Johns. 78. 
 
641 
 
 II. OP THEIB QDALITIEB. 
 
 "■ defendant, the plea on demurrer was held insufficient (x). The plea must 
 TrM™T ^^^ ^® *<^° large, and claim more than the defendant is capable of proving 
 not too to support his defence. Thus, where the defendant pleaded that a close 
 iS'i'ge- called A. had been separated and inclosed from a waste for twenty years, 
 to support the allegation, it was held necessary to prove that every part of 
 the close had been so long inclosed, and only part of the close having been 
 so inclosed, the defendant failed in the plea {y). This subject will be 
 further explained when the doctrine of Traverses comes under consid- 
 eration. 
 
 Of sham Sham pleading, that is the pleading a matter known by the party to be 
 peas (z). ^^jgg ^^^ ^j^g purpose of delay or other unworthy object, has always been 
 considered a very culpable abuse of justice, and has often been censured 
 and set aside with costs (a) (1). 
 
 It is of course in general the sole province of the jury to decide upon 
 the truth or falsity of a mere matter oifact pleaded by a defendant. But 
 there are many instances in which a plea may be so palpably and manifestly 
 untrue, that the Court will assume that it is so, or will, on an affidavit <Aa^ 
 it is false, permit the plaintiff to sign judgment as for want of a plea, and 
 make the defendant or his attorney pay the costs occasioned by the plea, 
 with the, costs of the application (6). Although in these cases it is prudent 
 [ *542 ] to obtain the prior *sanction of the Court, yet it seems that the plaintiff 
 may in general sign judgment without such previous authority (c). But 
 unless the plea be manifestly absurd, or probably a sham plea, the plaintiff 
 in the King's Bench will not be justified in signing judgment as for want 
 of a plea without a previous application to the Court {d) (2), which is also 
 necessary, it is said, after the defendant had been ruled to abide by his 
 plea (e). But it has been decided that the plaintiff is not estopped from 
 
 (r) 1 Saund. 316, 817; 1 Id. 9, b, n. 1. fiiotion was false. As to sham pleas, see fur- 
 
 {y) 2 Taunt. 156, and see 2 B. & C. 918; 7 ther 3 Chitty's Gen. Pr. 729 to 731. And as 
 
 Id. 346. A plea justifying a libel must be to plea of judgment recovered, in particular, 
 
 true in toto. See 2 B. & C. 678; 4 D. & R, 230, id. 730. 
 
 S. C; 1 Bing. 403. (c) 6 M. & Sel. 134; 8 B. & P. 898: Tidd, 
 
 («) See further as to sham pleas, 3 Chit. 9th edit. 564, 565, 473. 
 
 Gent Pr. 726. As to whether attor.ney is lia- (d) 1 Chit. Eep. 525, notes; 6 M. & Sel. 
 
 ble to pay the costs' of a sham plea, 1 Chitty's 133; Tidd, 9th ed. 564, 565. 
 
 Eep. 182,584. (c) Id.; 1 Chit. Rep. 565, note ; 5 M. & 
 
 (a) Bao.Ab. PIea9,G.4; 2Wil3.394; Salk. Sel. 518, S. C; see, however, 2 B, & Aid. 
 
 515; 2B. & A. 198. 197. To support a motion for leave to sign 
 
 (6) 2 B. & Aid. 197; 1 Chit. R. 182, 564 judgment for want of a plea, on the ground 
 
 a; Tidd, 9th ed. 665; and see 1 Moore & P. .that improper pleas have been pleaded, it 
 
 643; 4 Bing. 663. And in debt on a judg- seems that in the King's Bench there must 
 
 ment the defendant pleaded a release destroyed be an affidavit, not only that they are untrue, 
 
 by accident. Upon affidavit that the plea was but also that they are vexatious, and caloulat- 
 
 false, the Court allowed the plaintiff to sign ed to create unnecessary delay and expense, 
 
 judgment as for want of a plea. Smith v. Har- 1 Chit. Rep. 524, 365. 564; 2 B. & Aid. 777; 
 
 dy, 8 Bing. 435; but see 4 Bing. 512; 1 Moore 1 D. & R. 369; 2B. &C. 81; 3D. & R. 231; 
 
 & P. 638, where the Court of C. P. refused but see 1 B. & C. 286; 3 D. & R. 661, S. C. 
 
 leave to sign judgment on an affidavit that contra. 
 a plea of delivery of a pipe of wine in satis- 
 
 (1) See Tucker v. Ladd, 4 Cowen, 47; Brewster v. Bostwick, 6 Cowen, 34; Ooxe v. Highbee, 
 6 Halst. 895; Falls «. Stickney, 2 Johns. 641; Anon. 2 Halst. 160; Bowen v. Bissell, 6 Wen- 
 dell, 611; Caswell v. Bushnell, 14 Barbour, (N. Y.) 393. 
 
 (2) Special pleas if false will be stricken out on motion Oakley v. Devoe, 12 Wendell, 196; 
 Henderson v. Read, 1 Blackf. 847. See Maury v. Van Arnum, 1 Hill, 370; Fisher v. Pond, 
 1 Hill, 672. A plea will not be stricken out as frivolous unless it be obviously and grossly so. 
 Hogenoamp v. Ackerman, 4 Zabr. (N. J.) 133. ' 
 
OP PLEAS IN BAK. 542 
 
 making the application to the Court by having ruled the defendant to a!bide n. 
 by his plea (/). . q]'^'™'' 
 
 The following are instances in which false pleas have been treated as pieas.*™ 
 falling within the description of sham pleas which shall be regarded as a 
 nullity, although the defendant may not be under terms of pleading issu- 
 ably (§■). 
 
 1st. False pleas, calculated to raise issues requiring different modes of 
 trial, as set-off for money due upon a judgment or recognizance enrolled, 
 (the issue upon which is triable, by the record,) and for money due on simple 
 contract, the truth of which is triable by the country (A) ; or a plea of judg- 
 ment recoverable as to some of the counts, and another plea of payment as 
 to the other counts (i}. But in these cases there must be something to 
 convince the Court that the pleas are untrue ; " unless the inference be irre- 
 sistible, the plaintiff is not at liberty to take upon himself to pronounce 
 that the plea is a nullity " (j). 
 
 2dly. Pleas obviously false on the face of them, and the truth of which 
 is impossible on the defendant's own showing, as a plea of judgment ap- 
 pearing and shown in the plea to have been recovered in the Exchequer in , 
 Ireland, (or elsewhere,) before the cause of action accrued (/c). 
 
 3dly. False Pleas, which, although they might by possibility be true, yet 
 are in all probability fictitious ; as a plea ofjudgment recovered in the Court 
 of Pie Poudrie, in Bartholomew Fair, cauched in terms and showing pro- 
 ceedings palpably fictitious or unlikely (Z). And in Pierce v. Blake (m). 
 Lord Holt said that he remembered a *case where judgment having been [ *543 ] 
 given against a defendant above forty years of age, he brought a writ of 
 error, and assigned for error infancy and appearance by attorney, and the 
 Court fined the attorney for assigning those errors which were notoriously 
 false and frivolous. 
 
 4thly. False pleas, being subtle and ensnaring, and tending to raise nice 
 and intricate points of law, upon which it would be proper for the plaintiff's 
 attorney to consult counsel, whereby delay and expense are occasioned (n). 
 Thus where to a declaration on a bill of exchange and the money counts, 
 the defendant pleaded that the parties accounted together ; that a certain 
 sum was found due ; that in satisfaction of part, the defendant indorsed a 
 bill to the plaintiff, which was outstanding in the hands of a third person ; 
 and that in satisfaction of the remainder, the defendant assigned to the 
 plaintiff an Irish judgment, which was in force, as appeared by the record ; 
 the Court on an aflSdaVit of the falsity of the plea, allowed the plaintiff to 
 sign judgment, and directed that the defendant's attorney should pay the 
 costs of the application (o) . And a false plea in assumpsit on a bill, that the 
 plaintiff was indebted on a Tecognizance of bail as appears by the record (p), 
 is open to objection on the same ground. And where in debt on a bail- 
 bond, the defendant pleaded that the writ was sued out before the assign- 
 ment was stamped, and before the cause of action accrued, which he aver- 
 
 (/) 2 B. & Aid. 510. . 198, per Bayley and Holroyd, Justices. 
 
 (g) As to issuable pleas, ante, 510, 511. (n) See 1 Saund. 327 a, where the Court 
 
 (A) 6 M. & Sel. 518; 2 M. & Sel. 806; and reproved Saunders for pleading subtly, to triek 
 
 see.l Chit. Bep. 564 a. the Court, and see recital in 38 H. 8, c. 80; 1 
 
 (i) 2 B. & Aid. 197. Bla. R. 276. 
 
 Ij) 6 M. & Sel. 133; seeirf. 136. (o) 2 B. & Aid. 199; see 1 Taunt. 224, 
 
 Ik) 6 M. & Sel. 134; see 1 Chit. Bep. 825, 225. 
 526, notes; 4 Taunt. 668; 1 D. & E. 577. (p) 5 B. & Aid. 750; 2 Chit. R. 336; 1 D. 
 
 (l) 10 East, 237. & R. 446, 448, S. 0. 
 
 (m) 2 Salk. 615; recognized in 2 B. & Aid. 
 
43 ti: OP THEIR QUALITIES. 
 
 "• red and prayed judgmeut, and that the plaintiff might be directed to cause 
 Of sham^ ^^^ ^^'^^ ^^ ^° returned and filed of record, and that the record might be 
 pleas. inspected, &c., the Court directed that if the defendant did not amend this 
 subtle plea, the plaintiff might sign judgment (g'). 
 
 There arc some pleas, which have long been used as sham pleas, for 
 the purposes of procrastination, and which may be pleaded even at the 
 present day with impunity, if the defendant has not subjected himself to 
 the necessity of pleading an issuable plea. Pleas of this kind are simple 
 and concise in their form, and long and inveterate practice has obtained 
 for them this impunity. Pleas o^ judgment already recovered for the same 
 cause of action, and of accord and satisfaction by the creditor's acceptance 
 of goods, were of late years the pleas usually adopted. With regard to 
 the former plea it has been permitted after the defendant had delayed and 
 deluded the plaintiff by promises of payment (r), and had taken out a sum- 
 mons to stay proceedings on payment of debt and costs (s'). With respect 
 to the plea of accord and satisfaction, in a late case in the Court of Com- 
 mon Pleas, in which it was pleaded to a declaration on a bill of exchange, 
 [ 644 ] the Court *refused to allow the plaintiff to sign judgment upon an affidavit 
 that the plea was utterly false, and intimated that in future such applications 
 would be discharged with costs (<). In one case the Court (m) set aside a 
 false plea in assumpsit for use and occupation, that the defendant delivered 
 to the plaintiff, and he accepted in satisfaction Riga hemp and Russia tal- 
 low. I3ut in a subsequent case (y^ they declined to interfere where a simi- 
 lar plea was pleaded, though its falsity was sworn to. 
 
 An executor, by pleading a plea manifestly untrue, and which he knows 
 to be false, may render himself liable de bonis propriis (a;). 
 
 As a discouragement to sham pleading, the Court has suffered a plaintiff 
 to amend a defective replication to a false plea without payment of costs (y). 
 
 Recent Formerly it was the practice for a defendant to gain time by first plead- 
 
 ruiea com- jjjg g, gham plea, and when the plaintiff had replied to the same, then the 
 fendant tt defendant would abandon such plea and plead only the general issue ; but 
 abide by now Reg. Gen. Hil. T. 2 W. 4, reg. 46,t precludes a defendant from 
 his plea, abandoning his first plea without express leave, which cannot be obtained 
 unless when essential for the purposes of justice (sr). This rale has great- 
 ly tended to put an end to sham pleading. 
 
 Keg. Gen. The Prac. Reg. Hil. T. 4 W. 4, reg. 8,f orders that " Where a defend- 
 yf^I' ^ 3'°t shall plead a plea of judgment recovered in another Court, he shall 
 S.'as'to*^ iu the margin of such plea state the date of such judgment ; and if such 
 pieas of judgment shall be in a court of record, the number of the roll on which 
 ^r^cowred ^^°^ proceedings are entered, if any, and in default of his so doing the 
 
 (o) 3 Taunt. 839. coram Bayley and Holroyd, Justices; see 3 D. 
 
 (r) 1 Bing. 380; 8 Moore, 437, S. C. & R. 232. In 1 B .& C. it is stated that the 
 
 When this plea is used as a sham plea, it Court assigned no reason for making the rule 
 
 should be alleged that the judgment was re- absolute. 
 
 covered iu another Court, see the reason, ante, (d) 2 B. & 0. 81 ; 8 D. & R. 21, S. C. more 
 
 431, n. (y). fully reported. 
 
 («) Hill V. Tybatt, Hil. Term, 1820, K. B.; (i) 1 Saund. 336, note 10; 1 Marsh. 212, 
 
 1 Archb. Pract. 127, 2d ed. 213; ante, 489, 490. 
 
 (0 1 M. & P. 888; 4 Bingh. 512, S. C. (y) 1 East, 870. 
 
 (u) 2 D. & R. 661; 1 B. & C. 286, S. C. ' (z) See further 8 Chit. Gen. Prac. 722. 
 
 t See American Editor's Preface. 
 
II. THEIR QUALITIES. ' 544 
 
 plaintiff shall be at liberty to sign judgment as for want of a plea ; and in n. 
 case the same be falsely stated by the defendant, the plaintiff, on producing a"-*™"*' 
 a certificate from the proper of&cer or person having the custody of the ^^ ^^^ 
 records or proceedings of the Court where such judgment is alleged to have '^ 
 been recovered, that there is no such record or entry of a judgment as 
 therein stated, shall be at liberty to sign judgment as for want of a plea by 
 leave of the Court or a judge " («). This rule entitles a plaintiff to sign 
 judgment as for want of a plea, unless the defendant, in the margin of his 
 plea of judgment recovered in another court, truly states in the margin 
 thereof the particulars by which the judgment may be found on record. The 
 effect of the rule prevents any such plea from gaining time during a vacation 
 until the next term, *and has put an end to the utility of a sham plea of [ *545 ] 
 judgment recovered in ordinary cases. But that rule does not apply to a 
 plea by an executor or administrator of a judgment recovered against him 
 by another creditor (6). 
 
 The rules which prevail in the construction and allowance of a plea in ™. kules 
 bar are, °' "o"- 
 
 1st, That it is to be construed most strongly against the defendant; &c. 
 2dly, That a general plea, if bad in part, is bad for the whole ; and 3dly, 
 That surplusage will not in general vitiate. 
 
 1st. As it is a natural presumption that the party pleading will state his ^f^' ^^' 
 case as favorably for himself as possible, and that if he do not state it with against 
 all its legal circumstances, the case is not in fact favorable to him, it is a the plea, 
 rule of construction, then if a plea has on the face of it two intendments, it 
 shall be taken most strongly against the defendant ; that is, the most un- 
 favorable meaning shall be put upon the plea (c) ; a rule which we have 
 seen {d) obtains also in the case of other pleadings (1). Therefore in 
 trespass, if the defendant plead a release, without saying at what time it was 
 made, it shall be intended to have been made before the trespass was com- 
 mitted (e) ; and in trespass to land, a plea of liberum tenementum, not stat- 
 ing that the close was the defendant's freehold at the time of the trespasses, 
 is insufiScient (/). So at common law, if to a bond the defendant plead 
 payment, it shall be intended to have been made after the day appointed 
 for payment, if he do not aver it to be otherwise ; and in pleading a prom- 
 ise by a third person to pay the debt of another, it seems to be necessary 
 to aver in the plea that the promise was in writing (g-). 
 
 But this, rule of construction does not obtain where the unfavorable 
 meaning is inconsistent with another part of the plea (A). And there are 
 
 (a) See JTervis'a Bules, 89, note (g). ante, 238. 
 
 (6) Power ». Izod, 1 Bing. N. C. 304; 3 (e) Plowd. 46. 
 Dowl. 140; 8 M. & Soott, 119, S. C. (/) Com. Dig. Pleader, E. 6. 
 
 (c) Com. Dig. Pleader, E. 6; Co. Lit. 308 (g-) Jlnte, 222. 1 Saund. 276 a, sed gucre, 
 
 b; Plowd. 29, 46. ante, 534, n. (b). 
 
 {d) Ante, 237. Effect of pleading over, (ft) 10 Co. 59 b; antes, 230, 231, 237. 
 
 (1) An equivocal averment in pleading should be construed most strongly against the plead- 
 er. Slocum V. Clark, 2 Hill, 475; Ferris i>. N. A. Fire Ins. Co. 1 Hill, 71; United States v. 
 Lynn, 1 Howard, (U. S.) 104; S. C. 17 Peters, 88; Burrows v. Tount, 6 Blackf. 458; Halligan 
 V. Chicago & Bock Island B. B. Co. 15 Illinois, 558; Tercy v. Strain, 2 Carter, (IndO 
 118. 
 
 Vol. I. 72 
 
546 OP LEAS IN BAE. 
 
 ETOEs OE gome cases in which matters are implied in favor of the plea ; thus, it is 
 Tiw'^c' ^^^^ ^y Lord Coke (J,), "all necessary circumstances implied by law need 
 not be expressed, as in the plea of a feoffment of a manor, livery and attorn- 
 ment are implied (7) ; so where it is pleaded that land was assigned for 
 dower, it is not necessary to say it was by metes and bounds, for it shall be 
 intended a lawful assignment, which is by metes and bounds {k} ; and 
 [ *546 ] where surrender *of a lease for years is pleaded, and that it was agreed to 
 by the lessor, it is not necessary to say that he entered, for it shall be in- 
 tended, and it is not usual to plead a re-entry upon a surrender, any more 
 than it is to plead livery upon a feoffment (/) ; so, where it is pleaded that 
 a sheriff made his warrant, it is unnecessary to say that it was under his 
 seal, for it could not be his warrant if it were not" (?»). And if a man 
 plead that he is heir to A. he need not say either that A. is dead, or had 
 DO son (w). Other instances of this rule have been before given (0). And 
 we have seen that if an allegation is capable of two meanings, that expo- 
 sition shall be adopted which will support, not that which will destroy the 
 pleading (p). 
 
 badiU 
 irhole. 
 
 2dly. Bad 2dly. If one entire plea be bad in part, it is insufficient for the whole 
 in part, (5) (1). We have already in part noticed this doctrine in considering 
 that a plea must contain an answer to all it assumes to answer ; and if it 
 fail to do so it is not an effective bar even as to the part really answered 
 (r). In assumpsit on several promises in different counts, if the defend- 
 ant plead the statute of limitations to the whole, and it is a bad plea as to 
 one of the counts, it will also be insufficient as to the residue (s) (2) ; and 
 in an action against an executor or administrator, if the defendant plead 
 several judgments recovered against himself in that character, and that he 
 has not sufficient to satisfy them, if the plea be bad or false, or avoided, as to 
 one of the judgments, it will be bad for the whole ; but if the judgments 
 pleaded had been against the testator, it would be otherwise (i ) (3). In 
 one case, however, it was held that if one of the judgments pleaded were 
 against the testator and a third person, and the defendant did not show that 
 the testator survived, without which the executor is not chargeablp, the 
 plea is bad for the whole (m) ; but the propriety of this decision was ques- 
 tioned by Lord Vaughan (x). So, if several persons join in one plea, if it 
 be bad forgone, it will be bad for the others (^y). The extent of this rule 
 will be considered when we treat of pleas by several defendants (z). It 
 
 (0 8 Co. Rep. 81 b; ante, 221. C. 96; and 4 Tyr. & Gr. 85; 3 Dowl. 193, 
 
 (j) Co. Lit. 808 b, S. P.; Cro. Eliz. 401. 194. 
 
 (/f) Com. Dig. Pleader, E. 9. (r) Mie, 522; 6 Bing. 274. 
 
 (0 Cro. Car. lOl. (s) 1 Lev. 48. 
 
 (m) Cro. Eliz. 58; Palm. 857, S. P. (() 1 Saund. 837, and notes; 5 T. R. 80, 
 
 (n) 2 Saund. 805 a, note 13. 307. 
 
 (0) Ante, 221, 222. («) 2 Saund. 50, 51, note 4; 1 Saund. 837, 
 (p) Ante, 237. note 1. 
 (q) Com. Dig. Pleader, E. 86, F. 25; 3 T. (i) Vaugh. R. 104; 1 Saund. 337, tote 1. 
 
 R. 376; .3 B. & P. 174; 1 Sauild. 337, note 1, {y) 8 T. R. 376, 878; 1 Saund. 28, n. 2; 2 
 
 28, note*2; 2 B. & C. 216; 6 Bing. 274. The Bing. 523, instance of a constable joining in a 
 
 rule explained, &o. Steph. on Plead. 2d ed. 448 ; bad plea in trespass, 
 and see Tremeere v. Morrison, 1 Bing. N. (a) Post. 
 
 (1) Ten Eyck v. Waterbury, 7 Cow. 51; Briggs v. Cox, 7 Dowl. & Ryl. 410; Ferrand k. 
 Walker, 5 Blackf. 424; Shearman v. Fellows, 5 Blaokf. 459. 
 
 (2) Vide Perkins v. Bunback, 2 Mass. 81. 
 
 (3) Aoo. Douglas v. Sattcrlee, 11 Johns. 16. The plaintiff should demur Specially to the 
 judgments Whic£ are badly pleaded, and traverse the residue. Ibid. 
 
III..EULBS OF CONSTRUCTION. 546 
 
 seems, that if a special plea amount in part to the general issues, and be to Kinais or 
 that extent defective, for that reason it is bad in toto (a). The statement °°^^^^ 
 of several distinct debts in a plea of set-of is an exception, because the ™''' 
 statement of the debts in such a *plea is in the nature of a declaration con- r *r.^ -, 
 taming several counts ; and therefore if one of such debts be insufficient, •-*'*' J 
 the plaintiff must not demur to the whole plea, but only to that part of it 
 ■which relates to the objectionable ground of set-off (6). In trespass, if a 
 plea of justification consists of two facts, each of which would, when sepr 
 arately pleaded, amount to a good defence, it will sufficiently support the 
 justification if one of these facts be found by the jury (c) : the other might 
 be rejected as surplusage. 
 
 3dly. The rules with regard to surplusage and unnecessary allegations sdly- Sur- 
 which we have before considered, prevail in general with respect to pleas P'^^^g* 
 and every other part of pleading (d) : and we have explained that surplus- nancy?"^' 
 age, or unnecessary matter, repugnant and contradictory to what went 
 before in any point not material, will not vititate the pleadings, according 
 to the maxim utile per inutile nan vitiatur ; and such surplusage and 
 redundant or repugnant part shall be rejected, especially after a verdict (e) 
 (1) . Various illustrations of the general rule have been given. As an ad- 
 ditional instance we may observe that if the defendant in replevin make 
 cognizance as bailiff to A. administrator of B. where A. might have dis- 
 trained in his own right, the words ** administrator of B." shall be rejected 
 as surplusage (/). There is, however, considerable danger in surplusage 
 in the statement of material matter ; for where a party takes upon himself 
 to state in any pleading a substantive matter, or alleges a precise estate, 
 ^although not bound to do so,) if it be material and bear on the question, 
 he gives the other side the advantage of traversing it (g-) . Thus in Leake's 
 case (A), it was necessary that the plaintiff should show that he had some 
 right to put his cattle into the close, against which the defendant was bound 
 to repair the fence, but a seisin in fee was not necessary to give that right ; 
 for a term for life or years, or even an estate at will, or right of common, 
 or the owner's license, would have conferred that right {i) ; the plaintiff, 
 however, thought proper to allege that the right he had arose from a seisin 
 in fee, therefore the defendant was at liberty to deny that right as much as 
 any other right which the plaintiff might have had to put his cattle into 
 the close. So, in another case (A;), the ground of the plaintiff's action 
 was that the defendant would not permit him to cut down the remaining 
 200 trees'; in order to show that so many trees were left standing in the 
 
 (n) See 1 Saund. 27; Com. Dig. Pleader, E. 306, note 14; Id. 291. 
 36; see, ho-jrever, 3 Lev. 40. (/) Hob, 208. 
 
 (6) 2 Bla. Rep. 910. (g) Ante, 228. 
 
 (c) 1 Taunt. 146. (A) Dyer, 365; 2 Saund. 206 a, n. 21, 22: 
 
 {d) Ante, 228 to 232. and 207, n. 24. 
 ■ (c) Id,; Bac. Ab. Pleas, I, 4; Com. Dig, (i) 1 Saund. 346, u. % 
 
 Pleader, E. 12; Co. Lit. 303 b; 2 Saund. 305, {k) Telv. 195. 
 
 (1) Carrol v. Peake, 1 Peters, 18; U. States v. Burnham, 1 Mason, 67; ant«, 228 to 232, and 
 potes. 
 
 Immaterial matters, alleged in aggravation of damages merelyj will be rejected after 
 verdict as surplusage. Daniels v. Daniels, 7 Mass. 135; Riciiards v. Farnham, IS Pick. 
 451. 
 
 Whatever comes under a videlicet, if inconsistent with the precedent matter, may be rejected 
 as surplusage. Blackwell v. The Board, &c. of Lawrence Co. 2 Blaokf. 143. 
 
*548 
 
 OP PLEAS IN BAR, 
 
 KOTEs OP vood, he stated that at the time of the agreement he had cut down only 
 TioB™&c" ^^^ trees, and though it was not necessary for him to have *stated that 
 precise number, but having done so, and the number that was left being 
 material to show the damage which the plaintiff had sustained by the de- 
 fendant's refusal to permit him to cut them down, he gave the defendant 
 an advantage of traversing it (/). It seems, therefore, that a too precise 
 or particular statement of material matter may be taken advantage of upon 
 the trial of a traverse thereof ; but in general not by demurrer, as the ob- 
 jection does not appear upon the record, but depends upon the evidence ; 
 except where it is repungant or contrary to matter precedent Cm), and 
 though such repugnancy may not in some cases be aided by verdict (w), 
 yet if it appear that the verdict was given on another part of the plea, the 
 mistake will be aided (o). 
 
 IV. FORMAL PARTS OP PLEAS IN GENERAL. 
 
 IV. roBM jjj framing every plea, whether in abatement or in bar, the pleader must 
 ' constantly keep in view the following formal parts of the plea, and the 
 rules and decisions respecting them, and the opponent, when endeavoring 
 to discover a defect, should pursue the same course of examination. 
 The following is the outline of the usual form. 
 
 (1) In the King's Eenoh. 
 
 (2) On the 10th day of March, A. D. 1836. 
 (3) Johnson J (4 The defendant, by E. F. his attorney, \or "in his own proper person," 
 ats. > (p)] says that, (5) &c. [Acre follows the ground of defence.'] And of this he 
 Davis. ) the said defendant puts himself upon the country, &o. ; (6) \or if the conclusion 
 4e uiiift a verification, <Ac /orm is tftis;] "and this he the said defendant is ready to verify, 
 wherefore he prays judgment If the said plaintiff ought \ot " ought further,"] to have or 
 maintain his aforesaid action thereof against him, &c. 
 
 (7) John Hulme. 
 
 1st. The title of Court at top. 
 2dly. The date at top. 
 3dly. The names of parties in margin, 
 4thly, The commencement ; describing 
 
 1st. Defendant's appearance, whether in person or by attor- 
 ney, or prochein ami. 
 2dly. When he is to make full or half defence. 
 [ ^49 ] *3dly. Whether there is to be any preliminary suggestion or 
 
 statement. 
 
 (Z) 2 Saund. 207, note 24; 206, note 22; 2 
 East, 452. 
 
 (m) Co. Lit. 203 b. 
 
 (n) Bac. Ab. Pleas, I. 4. 
 
 (o) Id. 
 
 {p) Formerly the nature of the defence, 
 ■whether full or half, used to be stated, and 
 then followed the allegation that the plaintiff 
 ought not to have or maintain his action, and 
 then followed the statement of the ground of 
 
 defence, and which is still retained. The 
 alterations were introduced by the Reg. Gen. 
 Hil. T. 4 W. 4, as will be presently shown. 
 The ancient form was thus; — "comes and 
 defends the wrong, \pr in trespass ' force,'] 
 and injury, when, S^c, and says that the said 
 plaintiff ought not to have , or maintain his 
 aforesaid action thereof against him, because 
 he, &c." 
 
IV. THEIR FOEM AND PARTS. 549 
 
 • 
 
 4tlily. Whether there is to be auy prayer of judgment in the 't. form 
 commencement or other petitio, or actionem non. ^^ paets. 
 5thly. Whether the plea is to be in abatement to the whole, 
 
 or to a part only. • 
 
 6thly. Whether to be in bar, and whether to the whole or to 
 a part. 
 5thly. The body of the plea. 
 
 1st. Statement of time. 
 2dly. Statement of place. 
 
 3dly. Statement of circumstances, and herein of forms of alle- 
 gations. 
 6thly. The conclusion (gi). 
 7thly. Signature of counsel. 
 8thly. Affidavit when and what to be annexed. 
 9thly. The forms of second or subsequent pleas. 
 
 We will consider each part separately. 
 
 1. It was always usual at the head of the plea to state in what Court it ofihe''^* 
 was pleaded, as " In the King's Bench," or " In the Common Pleas," or Court. 
 
 " In the Exchequer of Pleas ;" and without this title of the Court, it might 
 be doubtful, especially if there should happen to be several actions be- 
 . tween parties of the same names in different Courts at the same time, to 
 what action or declaration the plea referred. There is not, however, any 
 statute or rule prescribing that a plea shall be entitled in any Court. — 
 And it is apprehended that the omission of the statement of the Court 
 would not be material, and that the plea would be considered as having 
 reference to the declaration, which must necessarily have been in the same 
 Court as to the plea. 
 
 2. With respect to the title, before the Reg. Gen. Hil. T. 4 W. 4, f Iffautt 
 all pleas were entitled of a term, and pleas to the jurisdiction, or in abate- time. 
 ment> were, as we have seen, in general required to be entitled of the same 
 
 term as the declaration (r) ; but pleas in bar might be, and usually were 
 entitled of the term of which they were pleaded, which was frequently 
 subsequently to that of which the declaration was entitled (s), and 
 where matter of defence had arisen after the first day of the term, the plea 
 was properly to be entitled specially of a subsequent day (f). But the 
 Reg. Gen. Hil. T. 4 W. 4, reg. I,t now expressly requires every plead- 
 ing to be entitled of the day of the month and the year when *the same [ *5o0 ] 
 was pleaded. But there cannot be a demurrer on account of an improper 
 date at the top (m). 
 
 3. The names of the parties in the margin do not strictly constitute any 3<Jiy- The 
 
 part of the plea. The surnames only are usually inserted, and that of the "hTparto 
 
 ' in the 
 
 (j) Every plea in bar must conclude to the b, c, d. margin. 
 
 country or with a verification, 2 Dowl. 664; 2 (i) Post, vol. iii. And see also a suggestion 
 
 Cr. M. & Ro9. 26, S. C. after imparlance, post, vol. iii. 
 
 (r) Ante, 454. (u) Neal v. Richards, 2 Dowl. 94; and 3 
 
 (s) Bac; Ab. Pleas, C. 2; 2 Saund. 1 f, 2 a, Chitty Gen. Prao. 716. 
 
 t See American Editor's Preface. 
 
649 
 
 OF PLEAS IN BAR. 
 
 «DPAMs ^^^^'1'^^°* precedes the plaintiff's as ^-Johnson ats. Davis:' They" 
 "''^- should correspond with the names in the declaration, or if the defendant 
 plead in abatement or bar by another name to that in the declaration, the 
 difference should be specified in the margin, thus, " C. D. sued by the 
 name of E. D. ats. A. B." (1). It has been decided that it is sufficient, in 
 a qui tarn action, to entitle the plea of nil debet with the names of the parties 
 as above, without the addition of qui tam, &c. to the plaintiff's name (^v). 
 After the parties have once been named in the previous pleading by chris- 
 tian and surname, they may in the plea be described as the said defend- 
 ant and the said plaintiff, without repeating the names {x). 
 
 4thly. The 4_ 'With respect to the commencement, we will first state the practice 
 ment. before the recent rules, and then the present practice. And first the name 
 Before the of the defendant ; we have seen that when the defendant pleaded misno- 
 reoent mer jq abatement, a plea commencing with the words, " And the said 
 Richard, sued by the name of Robert," or thus, " and he against whom 
 the plaintiff hath exhibted his bill by the name of J. S. &c." was insuffi- 
 cient (y). A plea in bar commencing in the same manner was also bad on 
 special demurrer {z}. When the defendant was sued by a wrong name, 
 and wished to defend in his right name without pleading in abatement, it 
 was proper to begin his plea thus : " And CD. against whom the said 
 A. B. hath exhibited his bill by the name of B. D. comes and defends the 
 wrong and injury, when, &c." (a.) A mis-statement of the defendant's 
 christian name in the commencement of his plea in bar, did not entitle the 
 plaintiff to treat it as a nullity, and sign judgment as fpr want of a plea 
 (6). 
 
 After the names of the parties in the margin, the defendant's appear- 
 ance and defence, (venit et defendit vim et injuriam) were to be stated. 
 Some observations have already been made on these parts of pleading (c). 
 The appearance might in general be stated to have been either in person 
 or by attorney, for a defendant was at liberty to appear and defend in per- 
 son, and this was usual in an action against an attorney or prisoner {d). 
 [ *551 ] As a feme convert, when sued alone, is *incapable of appointing an attor- 
 ney, she should defend in person (e) ; an idiot should also appear in per- 
 son, and it is said that any one who can make a better defence, shall be ad- 
 mitted to defend for him ; but a lunatic, or one who. becomes non compos 
 mentis, must appear by guardian, if he be within age, and by attorney if of 
 full age (/). An infant must plead by guardian, and not by attorney (2) 
 or prochein ami (§•), and if he, whether in the case of a sole or several de- 
 
 (d) 7 East, 333. (c) Ante, 427, 428. 
 
 (x) So decided as to a declaration in (d) Sayer, 217. 
 
 Meekeii. Oxlade, 1 New. K. 289, and other (e) Co. Lit. 125 b; 2 Inst. 390; F. N. B. 
 
 cases, 8 Chitty's Gen. Pr. 467, note (r). 27; 2 Saund. 209 c; ante, 427, 428; see the 
 
 ly) Ante, 456, 427. forms pott, vol. iii. 
 
 Iz) 3 Wils. 413. (/) Id. ; 4 Co. 124 b; 2 Saund. 333, note 
 
 (a) Post, vol. iii. ; 3 Wentw. 210. 4, 835; Bao. Ab. Idiots and Lunatics. 
 
 (J) 7 D. & R. 511. (g) Ante, 432, post, vol. iii. 
 
 (1) See Cleft v. Hosford, 12 Vermont, 296. 
 
 (2) Vide Mookey v. Grey, 2 Johns, 182; Dewitt v. Post, 11 Johns. 460; Jefifrie i». Robideaux, 
 3 Mis. 33; Clark v. Turner, 1 Root, 200; Knapp v. Crosby, 1 Mass. 479; Miles v. Boyden, 3 
 Pick. 213; Alderman v. Tirrell, 8 John. 418; Bedell o. Lewis, 4 J. J. Marsh. 562; Shepard v. 
 Hibbard, 19 Wendell, 96. 
 
IV. THEIB FORM AND PARTS. 55 
 
 fendant pleaded by attorney (1), it was error (A) (2) ; and therefore the iv. form 
 plaintiff was bound in such a case, for his own security, to take out a sum- ^"^ ^•^''^• 
 mons to compel him to appear by guardian, and to alter his plea, or for **%• "^^^ 
 leave to do it for him (t). A plea by a corporation aggregate, whichis men™*""*' 
 incapable of a personal appearance, must purport to be by attorney (A). 
 In a plea by husband and wife, it is stated that they appear by their at- 
 torney (Z). The plea should also be in the name of an attorney of the 
 Court in which the action is brought, legally competent to practice there- 
 in (m). It must also be in the name of the attorney by whom the defend- 
 ant appeared, unless there has been an order to change the attorney, or the 
 plaintiff may sign judgment (w). Though the appearance has been enter- 
 ed in the name of an agent to a country attorney, the plea may be in the 
 name of the principal attorney (o) ; it ought not, however, where there 
 are several attorneys in partnership, to be in the name of the firm, but on- 
 ly in the name of one of them (p). 
 
 We have already stated the signification of the term defence, its nature, 
 and the form of it in a plea in bar (^q}. Before the recent rules every plea 
 in bar must have begun with the defence (r) ; and it should seem that if 
 the defendant plead only to part, and' confessed the residue, the defence 
 should be confined to the part intended to be pleaded to, and not cover 
 the whole (s). 
 
 In a plea of the general issue, or other plea in bar to the whole declara- 
 tion, which merely denied what was alleged in the declaration, and did 
 not introduce any new matter, it was not usual to insert the allegation, 
 " that the plaintiff ought not to have or maintain his aforesaid action 
 against the defendants" but after stating the defendant's *appearance and [ *552 ] 
 his defence, the plea immediately denied the matter stated in the declara- 
 tion, and concluded to the country (f). But special pleas, after stating 
 the appearance and defence, began with this allegation, actionem non ha- 
 bere debet (m) ; which always alluded to the commencement of the action, 
 and not to the time of the plea (x), and payment of the debt without costs, 
 after action brought, was therefore no defence {y). No defence which 
 arose after action brought could be given in evidence under the general 
 
 (h) Ante, 428. But the infant only could (g) Ante, 428. And see further, 3 Lev. 
 
 toing error, 5 B. & Aid. 418. 240; Com. Dig. Abatement, I. 16. 
 
 (»J 2 Wils. 50; 2 Saund. 117 f; 7 Taunt. (r) Com. Dig. Pleader, E. 27; 3 B. & P. 9 
 
 418; 1 Moore. 251, S. C. a; Co. Lit. 227 b; anic, 427, 428. 
 
 (&) Bro. Ab. Corporation, 28; Co. Lit. 66 (s) Com. Dig. Pleader, E. 27. See, as to 
 
 b; Conio Dig. Pleader, 2 B. 2. qualities of a plea, ante, 522, 523. 
 
 {I) 2 Saund. 219; Com. Dig. Pleader, 2 A. (<) Salk. 6W;post vol. iii. 
 
 But the objection would not entitle the plain- («) Salk. 211 ; post. vol. iii. 
 
 tiff to treat the plea as a nullity. Hill v. (k) 7 East, 536; 3 East, 316; 4 B. & C. 
 
 Mills, 2 Dowl. 696. 393. 
 
 . (m) Barnes, 259. By an uncertificated {y) 3 T. K 186; 4 East, 502; 1 Campb. 
 
 attorney, Tidd, 9th ed. 77. 558, 559. Payment of debts and costs, in 
 
 (ra) 2 New Bep. 509; 6 East, 549; Tidd, full satisfaction, after action brought, if spe- 
 
 9th ed. 94; ied vide 13 Ves. 161, 196, in cially pleaded, was a good plea. Holt's C. 
 
 Chancery. N. P. 6; 5 B. & Aid. 886; 1 D. & K.S46, S. 
 
 (0) 3 B. & P. Ill; Barnes, 239. C. 
 (p) 4 East, 195. 
 
 (1) That the plaintiff may enter a nolle prosequi as to the infant, fide Hartness v. Thomp- 
 son, 5 Johns. 160. Woodward v. Newhall, 1 Pick. 500. 20 Johns. 160, 161. Or as to a feme 
 covert. Biedman v. Vanderslice, 2 Eawle, 344. 
 
 (2) Vide Dewitt v. Post, 11 Johns. 460. Silver v. Shelback, 1 Dall. 165. Moore v. M'Ewen, 
 5 Serg. k Bawle, 873. Arnold v. Stanford, 14 John. 417. 
 
652 
 
 IV. POKM 
 AND PAET3, 
 
 OP PLEAS IN BAS. 
 
 issue : such defences always -were required to be specially pleaded (z) 
 . Ii debt on bond, if the defendant by his plea denied the validity of the 
 
 commence- ^^^^' ^"^ ^^ ^^ ^^^^ pleaded rien per descent, it was more formally correct 
 ment. to say onerari non debet, and not actionem non (a) ; and in that case the 
 plea should describe the deed as a writirig or " supposed writing obliga- 
 tory," and should not admit that it was a deed (b) . In replevin, if the defen- 
 dant said " he well avoivs," instead of well acknowledges the caption, no ob- 
 jection could be taken (c). When the matter of dejence arose before the 
 commencement of the suit, actionem non, <fec. was generally the proper 
 commencement ; but matter of defence, arising after action brought, must 
 have been specially pleaded in bar of the further maintenance of the suit 
 (c^). If the matter of defence arose after issue joined, it must have been 
 pleaded pwis darrein continuance, (e) (1) ; and if it arose after trial, an 
 audita querela was in general the only remedy (2) ; although in some in- 
 stances the Court would afford relief on a summary application. In an ac- 
 tion against husband and wife, both must have defended and joined in 
 the plea, or the plaintiff should demur, or there would be a repleader, al- 
 though the action were merely for the tort of the wife (/). Where the 
 plea was only to a part of the declaration, it must not in the commence- 
 ment profess to cover the whole declaration {g) (3) ; and it must designate 
 specifically the part to w.hich it was to be applied, or the plaintiff might de- 
 mur (A). The mode of pleading in these cases was thus : " And the said de- 
 fendant, by E. F. his attorney, ^omes and defends the wrong and injury, 
 when, &c." and " as to the first count of the declaration," (or, if in cov- 
 [ *553 ] enant, " as *tb the said supposed breach of covenant first above assigned," 
 or, if in trespass, " as to the breaking and entering, &c." enumerating the 
 particular trespasses mentioned in the declaration intended to be justified) 
 (i) " the said 0. D. says, that the said A. B. ought not to have or main- 
 tain his aforesaid action thereof against him, because he says, that, &c." 
 
 At common law, before the statute of Anne, which introduced several 
 pleas, it was usual, particularly in actions of trespass, for the defendant to 
 plead as to the force and arms, and whatever else was against the peace 
 of the king, not guilty, and as to the residue of the supposed trespasses, 
 a justification (A). Aid the defendant must take care to state in the com- 
 mencement the whole of the trespasses he intends to justify, and if he omit 
 
 (z) Holt's C. N. p. 6; 4 B. & Aid. 345 ; 5 and before plea, see 9 East, 82. After issue, 
 
 Id. 886 ; 4 B. & C. 890. 6 B. & C. 105. 
 
 (a) 1 Saund. 290, n. 3; lord Raym. 217; (c) See post, as to these pleas. 
 
 2 Salk. 516. (/) Cora. Dig. Pleader, 2 A. e; Cro. Jae. 
 
 (A) Cro. Eliz. 800; 1 Sannd. 290, note 3; 288. 
 
 291, notel; Ld. Eaym. 1541; 2 Rol. Rep. {g) As to this rule, ontc, 623. 
 
 140; Com. Dig. Pleader, E. 27. (A) Com. Dig. Pleader, E. 27; 1 Sid. 338; 
 
 (c) Cro. Jao. 873; 1 Saund. 347 o. note 4; Lutw. 241; 3 B. & P. 174; ante, 623, 524. 
 and see Nicholson v. Lightfoot, E. T. 3 May, (i) As to the effect of this on the replication 
 1813 KB in trespass, see 2 Campb. 175. 
 
 (d) 4 East, 502; 6 Id. 414; ante, 546, 585. (fc) See 1 Saund. 10, 24, 82, 296. 
 Ab to pleading bankruptcy after action brought 
 
 (1) Vide Cobb v. Curtis, 8 Johns. 470. A defence arising after suit commenced should be 
 pleaded in bar if the farther maintenance of the action is not in bar generally, Kunzler v. Ko- 
 haus, 5 Hill, 319; Boyd v. Weeks, 5 Hill, 393. 
 
 (2) It is usual, however, to grant the same relief on motion as the party might have ob- 
 tained by audita querela. Baker u. Judges of Ulster, 4 Johns. 191, and see n. b. 2d edit, 
 ibid. 
 
 (3) Gillespie v. Thomas, 15 Wend. 464, and the cases cited in the opinion of the court. 
 
n. THEIR FORM AND PARTS. 653 
 
 any material part, the plaintiflF will be entitled to recover pro tanto (Z), iv. form 
 as where the declaration inter alia alleged that the defendant dragged the ^^ ^J^^'^- 
 plaintiff through a pond, and the special plea only covered other trespass- ^*'y- "^^ 
 es ; it was held that the plaintiff was entitled to recover for such dragging m^"^"*^*" 
 through the pond, although it was insisted that he ought to have new as- 
 signed {I). 
 
 In actions of trespass to personal or real property, where the declara- 
 tion contains several counts, varying the statement of the injury to the 
 same personal chattels, or to the same closes, it has been usual, in order 
 to save the expense of several distinct pleas to each count, to render the 
 same plea applicable to all the counts (m). In this case the trespasses 
 complained of in the different counts, and which were intended to be justi- 
 fied, were first enumerated in the introductory part of the plea ; and then 
 followed the statement of actionem non, &c. ; and it was then alleged that 
 the close and grass, &c. mentioned in the first count, and the close and 
 grass, &c. mentioned in the last count, at the several times when, &c. were 
 the same close and grass, &c., and not oilier or different, and that the seiz- 
 ing and taking, &c. mentioned in the first count, and the seizing and tak- 
 ing, &c. mentioned in the last count, were the same and not other or differ- 
 ent (w). But, as before observed, these allegations identifying the tres- 
 passes were traversable ; and this mode of pleading could not in strictness 
 be supported, but was demurrable (o). Where it is certain that the dif- 
 ferent *counts were for the same trespass, and it is expected that the [ "554 ] 
 plaintiff would not demur, it was considered advisable, in order to save 
 expense, to risk that concise mode of pleading ; but the plaintiff should 
 demur or traverse the allegation if he really contended that several dis- 
 tinct trespasses thus united in the plea were committed (;»). 
 
 The Reg. Gen. Hil. T. 4 W. 4, reg. 9, 10, 11,1 have introduced Forms of 
 material alterations as well respecting the commencements as the eonclu- <^'"»™«"«- 
 sions of pleas, and have put an end to the subtle distinctions respecting seribed by 
 half and full defence. The reg. 9 orders that " In a plea or subsequent Keg- Gen. 
 pleading intended to be pleaded in bar of the whole action generally, it w^'a^' *' 
 shall not be necessary to use any allegation of actionem non, or to the like 9.' ' . 
 effect, or any prayer of judgment ; nor shall it be necessary in any repli- .Actionem 
 cation or subsequent pleading, intended to be pleaded in maintenance of "°"*°?f 
 the whole action, to use any allegation of precludi non, or to the like sary. 
 effect, or any prayer of judgment ; and all pleas, replications, and subse- 
 quent pleadings, .pleaded • without such formal parts as aforesaid, shall be 
 taken, unless otherwise expressed, as pleaded respectively in bar of the 
 whole action, provided that nothing herein contained shall extend to cases 
 where an estoppel is pleaded." 
 
 (I) Bush V. Parker and others, 1 Biug. N. (n) See Plead. Ass. 401; post, vol. iii.; 9 
 
 C. 72. Wentw. 47, 57; Sir T. Eaym. 449; but see 
 
 (m) See ante, 414, and 527, 528; 1 Marsh, ante, 414, and 527, 528. 
 17, 18; 5 Taunt. 198, S. C; 11 Moore, 48. (0) Id.; 5 Taunt. 200; 1 Marsh. 17, 18, S. 
 
 But where there had been but one trespass, &o. C. So to a declaration containing two counts, 
 
 it sufficed to plead specially to one of the counts as for two different libels, a plea of justifica- 
 
 which contained the fullest description of the tion to the whole declaration, alleging that the 
 
 injury, and to plead only the general issue to libel in each count was one and the same, and 
 
 the rest, or generally, in which case the plain- that the publication thereof was but one act, 
 
 tiff could not proceed on the other counts so as and then justifying one libel, was holden bad, 
 
 to avoid the defence on the special plea, see 2 Chit. Rep. 291. 
 ante, 399; 289, n. (/). (p) Artie, 414. 
 
 t See American Editor's Preface. 
 
 Vol. I. 73 
 
^^4 OP PLEAS IN BAK. 
 
 AND p^ ^* ^^^^ ^® observed that this rule is expressly confined to pleas in bar, 
 4thl Th ^°^ ^^^^ "°* *^®'^^f'''^® extend to pleas in abatement, and which according 
 commence! *° *^^ antecedent rules of pleading must always be expressly limited when 
 ment. t^e matter in abatement only afi'ects part of the alleged cause of action. 
 
 It was held that the expression " whole actions generally " in this new 
 rule means as well the whole case stated in any one count (q) as the whole 
 decla/ration containing several counts, unless the commencement expressly 
 limit the plea to a particular count ; or it may be open to a special demur- 
 rer (r). 
 
 To a declaration containing two counts, first, on a bill of exchange, and 
 secondly, on an account stated, the defendant without a rMfe to plead 
 several matters pleaded " that he did not accept the bill," and for a fur- 
 ther plea that " he did not account," and it was held that the informality of 
 omitting to confine each plea to the count to which it applied did not au- 
 thorize the plaintiff to sign judgment (s). It may here be proper to refer 
 to the recent decision (t), that the several statements of debts for goods 
 sold, work and labor, money lent, paid, had and received, and account 
 [ *555 ] stated, are for all pleading* purposes to be considered as separate counts. 
 But still it is necessary and proper that when a plea is pleaded, or when 
 the matter pleaded is properly applicable only to a part of the declaration, 
 that the commencement of the plea should be expressly and in terms lim- 
 ited to that part (m). 
 drfencr^ The Reg. Gen, Hil. T. 4 W. 4, reg. 10,t orders " that no formal de- 
 requiaite. /fi«ce should be required in a plea, and it shall commence as follows : ' The 
 said defendant by Y. Z. his attorney {or, ' in person,') says that, &c,' " 
 C^urT'&°^ Reg. 1 orders that " It shall not be necessary to state in a second or' 
 noteasen- other plea or avowry that it is pleaded by leave of the Court, or accord- 
 tial in case ing to the form of the statute, or to that, effect." 
 of several 
 
 BtUy' The ^' With respect to the body of the plea, which states the substance of 
 
 body of the the defence, the allegations depend on the circumstances of each particular 
 
 P^«*- case. The forms of those pleas which usually occur in practice are given 
 
 in the Third Volume ; and the qualities of a plea, as well in respect to 
 
 certainty of time and place, &c. as in relation to more material matters, 
 
 have already been considered {x). As a. proiestamdo {y), and a formal 
 
 traverse (z), more frequently occurs in replications, we will postpone the 
 
 particular consideration of them till that part of the work. 
 
 Qua est jjj point of form in trespass and other actions, when the plea necessarily 
 
 states the trespass to have been committed at some other time or place 
 
 than that laid in the declaration (a), it is proper, immediately preceding 
 
 the conclusion of the plea, to allege that the supposed trespasses mention- 
 
 ( q) Bird v. Higginson, 1 Har. & WoU. 61 ; 4 («) Dueer v. Triebner, 3 Dowl. 133. 
 Nev. & Man. 505. (x) See ante, 521. 
 
 (r) Worley v. Harrison, 1 Har. & Wol. 426; {y) Com. Dig. Pleader, N. 
 8 Nev. & Man. 173, S. C; and see Vere v. («) Com. Dig. Pleader, G. 1, &o.. 
 
 Goldsborough, 1 Bing. N. C. 353, as to an in- (a) The plea should follow the time and 
 
 formal plea to two counts without distinguish- place laid in the declaration, unless either be, 
 
 ing which. from the nature of the case, material, and the 
 
 (s) Vere v. Goldsborough, 1 Bing. N. C. gistof the dispute, and by pursuing the declar- 
 
 °58- ation, there would be an incongruity in the 
 
 (0 Jourdain «. Johnson, 2 Cr. M. & Eos. plea in this respect. See nnte, 622; 2 Saund. 
 
 564; 5Tyr.421. 5 a, note. 
 
 t See American Editor's Preface. 
 
IV. THEIR FORM AND PARTS. 655 
 
 ed ill the plea are the same as those whereof the plaintiff hath complained, iv. pobm 
 This allegation is usually termed qumest eadem (1) ; and when it is adopt- •^''°^-^™- 
 ed in the above case, if the plea also conclude with a traverse that the de- ^*ly- ^""s 
 fendant was guilty at any other time or place, the ulaintiff may demur spe- b?-/"^*"'' 
 cially (6). ' *^ 
 
 _ But when it is unnecessary, and consequently improper, to vary from the 
 time or place laid in the declaration, and the declaration and plea are in 
 these respects conformable with each other, the qum est eadem need not 
 be *inserted (c), though the insertion will not prejudice : but in that case [*556 ] 
 if a traverse were added, the plea would be informal (c?). If however, the 
 traverse were defective, it was holden that it would be rejected as sur- 
 plusage (e) ; but, in a late case, it was held that an unnecessary traverse 
 after the qua est eadem is bad on special demurrer (/) 
 
 A plea of illegal consideration or contract contrary to any express sta- Contra ■ 
 tute should, like a declaration on a statute for a penalty incurred, in strict-/<"'»»<'™ 
 ness conclude contrary to the form of the statute. It has nevertheless *'"'"*'• 
 been decided that if such conclusion be omitted the plea may be sustained quislte^^a 
 (g-). plea. 
 
 Every plea in bar must have its proper Conclusion (Ji), which is either gthly: The 
 to the country, or with a verification ; and the latter is either of fact or of Conclu- 
 matter of record (A). An avowry or cognizance in replevin, in which the """' 
 defendant is an actor, is an exception to this rule, and need not have any 
 conclusion (i). In an action against husband and wife, both should join 
 in the concluding part of the plea {j ) (2). 
 
 When there is a complete issue between, the parties, viz. a direct aflir- 
 mative and negative ; as if the general issue be pleaded (3) ; or the defend- 
 ant simply deny some material fact alleged in the declaration (4), as where 
 the plaintiff declares on an award, and the defendant pleads no such award ; 
 the plea should conclude to the country (k) (5). And such conclusion 
 
 (4) Com. Dig. Pleader, E. 31;, Cro. Jao. E. 31. 
 
 372; 2 Sauad. 5, n. 3; Cowp. 162; 1 Saund. (e) Id.; Salk., 641, 642; 2 Saund. 5. 
 
 297; Willes, 302. Where the plea varies from note 3. 
 
 the rfoy laid in the declaration, et7ftcV the aver- (/) Henbrow v. Bailey and others, 8 Tyr, 
 
 ment of qtus est eadem, or the traverse of the 162. 
 
 time laid in the declaration is proper, and (§■) Peate u. Dicken, 1 Crom. M. & Ros. 
 
 ■vrill suffice : but it is superfluous and im- 427. 
 
 proper to have both the qua est eadem and the (A) Knowles v. Stephens, 2 Dowl. 664; 1 
 
 traverse, id. And, as remarked by the learn- Crom. M & Ros. 26; Com. Dig. Pleader, E. 
 
 ed editors of the 5th edit, of Saunders' Rep. 28, &c.; Co. Lit. 303 b. 
 
 vol. ii. 5 e, note (p), there seems to be no (i) 1 Saund. 348, note 7; Co. Lit. 303 a; 
 
 reason why the averment of qua est Plowd. Com. 342, 163 a; Willes, 6. 
 
 eadem should not be considered a good trav- (j) Com. Dig. Pleader, 2 A. ; Cro. Car. 
 
 erse of the place in the declaration, as much as 594. 
 
 itisof <ime. Sed jiirfe Mr. Sergeant Williams' (k) Com. Dig. Pleader, E. 32; 2 Saund. 
 
 note, id. 337, n. 1, 196, and 1 Saund. 103, n. 1, 103 a, 
 
 (c) Skin. 387; Com. Dig. Pleader, E. 31 ; b. note 3. A plea in bar of riens en arrere to 
 Carth. 281; 2 Saund. 5 b, note 1. an avowry for rent should so conclude, Ld. 
 
 (d) 2 Saund. 5, note 3; Com. Dig. Pleader, Raym. 641. 
 
 (1) Vide Nevins v. Keeler, 6 Johns. 63. 
 
 (2) In trespass guare clausum the defendant pleaded a license, upon which issue was joined; 
 and held that the plaintiff might show that the license was obtained by fraud without pleading 
 it specially. Anthony v. Wilson, 4 Pick. 308. 
 
 (3) Gazley v. Price, 16 Johns. 267. 
 
 (4) Vide Manhattan Company v. Miller, 2 Caines, 60; Snyder v. Groy, 2 Johns. 428. 
 
 (6) Sherwin v. Bliss, 4 Vermont, 99; Sampson v. Henry, 11 Pick. 879; Hooper v. Jellison, 
 22 Pick. 250; Wait v. Maxwell, 4 Pick. 87; Hartwell v. Hemmenway, 7 Pick. 117; McClure v, 
 Erwin, 8 Cowen, 818. 
 
666 
 
 <OjP PLEAS IN BAR. 
 
 AND ^°™ seems to be proper, although the plea unnecessarily contain a formal trav- 
 • erse (/). This rule equally prevails whether the affirmative be first in' the 
 conduston^ pleading, and the negative subsequent; or vice versa {m); and therefore, 
 Conolu- ' though the negative be asserted by the plaintiff,and the affirmative by the de- 
 sion. fendant,as where the plaintiff in his declaration alleges a breach of non-pay- 
 
 ment of a sum of money on a particular day, or in not repairing, &c. and the 
 defendant pleads solvit ad diem, or that he did repair, the plea should 
 conclude to the country ; but in debt on bond, if the declaration be gene- 
 ral, and no particular breach assigned, a plea of performance of the con- 
 dition must conclude with a verification (w). So, where a plea puts in is- 
 sue matter of fact as well as matter of record, it should conclude to the 
 [ *557 ] country (1) ; as if it be alleged in a declaration that the *plaintiff procure 
 , letters patent, and the defendant plead that the plaintiff did not procure 
 them, the plea should conclude to the country ; because the procurement 
 is the principal point in issue ; so, if the issuing of a Jleri facias and a 
 levy under it be put in issue, the matter may be referred to the country 
 by the party traversing those facts (o). And if a plea conclude with a 
 special negative to the affirmative in the declaration, it should conclude 
 to the country- (2) : as, for instance, in debt on bond, the allegation in 
 the declaration of the making of the bond includes the allegation of the 
 delivery as a deed ; and therefore, if the defendant plead that he deliver- 
 ed the deed as an escrow, he may conclude to the country (/?). But 
 where there is not a direct negative and afSrmative this plea need not 
 so conclude ; as if in debt on a bond to account, the declaration allege 
 that the defendant received £20 for which he did not account, and the de- 
 fendant plead that he accounted in manner following, viz, that he was 
 robbed of it, and gave notice to the plaintiff ; this plea giving color to the 
 plaintiff, and referring the sufficiency of the mode of accounting to the 
 Court, may conclude with a verification (^q). And where the declaration 
 is founded on matter of record, which is traversed in the plea, the plea 
 should not in general conclude to the country, but should allege that there 
 • is no such record, and usually concludes with a verification, and prayer of 
 judgment, si actio, &c. (r) ; but a verification appears to be unnecessary in 
 this case as the plea is in the negative (s) : and if an action of debt be 
 brought here on a judgment in Ireland, the plea of nul, tiel record must 
 conclude to the country (if). 
 
 ^"th"'"'^"" It is an established rule in pleading, that whenever new matter is intro- 
 verifioa^ duced on either side, the pleading must conclude with a verification or aver- 
 tion. 
 
 (I) 1 Saund. 103 b; Com. Dig. Pleader, E. {p) 1 Salk. 274; 4 Eap. Rep. 255; Com. 
 
 83. Dig. Pleader, E. 8'2; post, vol. iii. 
 
 (m) Carth. 88, 89; Com. Dig. Pleader, E. (g) 2 Lev. 5; Com. Dig. Pleader, E. 32. 
 
 32. (r) 2 Wils. 114; Lil. Ent. t82, 404, 478. 
 
 («) Id. (s) Fortes. 339; Com. Dig. Pleader, E. 29; 
 
 (0) 3 Mod. 79; Com. Dig. Pleader, E. Salk. 620. 
 
 32; Sayer's Kep. 208, 209; Hob. 244; Stra. (<) 5 East, 473; 2 Smith R. 26, S. C; 4 B. 
 
 522; 1 M. & P. 102; 4 Bing. 428, S.C; post, & C. 411; 9 Price, 1. 
 
 668. 
 
 (1) Allen V. Crofoot, 7 Cow. 46. Vide Lytle v.'Lee, 5 Johns. 112; Thomas v. Rumsey, 6 
 Johns. 26 ; Everett v. Bartlett, 1 Spencer, 117 ; Bennington Iron Co. v. Rutherford, 3 Harr. 468, 
 A plea concluding with a verification, which ought to conclude to the country, will be stricken 
 out on motion. Copperthwait v. Dummer, 8 Harf, 268, See Stevens v. Bowers, 1 IJarr. 16; 
 Carthrae v. Clarke, 6 Leigh. 268. 
 
 (2) Burgess v. Lloyd, 7 Maryland, 178. 
 
IV. THEIE FORM AND PARTS. 557 
 
 ment, in order that the other party may have an opportunity of answering iv. pokm 
 it (m) (1). The usual verification of a plea containing matter o^facl runs *'"' '^'^^"" 
 thus, " and this the said defendent is ready to verify, wherefore he prays ^'^?^ T^^ 
 judgment if the said plaintiff ought to have or maintain his aforesaid ac- """"^ "''°°' 
 tion thereof against him," &c. ; and if the word " certify " be inserted in- 
 stead of " verify" no advantage can be taken of the mistake (x). An 
 avowry, we have seen, does not require any conclusion (y). A plea of bank- 
 ruptcy pleaded under the statute, though introductory of new matter, should 
 pursue the terms of the act, and conclude to the country (sr) (2). And 
 where one of several facts *iQ a declaration is denied with a formal tra- [ *558 ] 
 verse, the plea may conclude with a verification, or to the Country (a). 
 If matter oirecord be pleaded, as a judgment recovered for the same de- 
 mand, &c., the plea should conclude with a prout patet per recordum, and 
 a verification by the record ; and if several records be pleaded, they should 
 be respectively verified (6). But if matter of fact as well as matter of 
 record be jointly put in issue, the trial may be by jury, and the plea may 
 conclude to the country (c). So, if matter of record, as a fine, be plead- 
 ed with other matters not of record and constituting one entire defence, al- 
 though that part of the pleading which states the fine, should refer to the 
 record thereof, yet the plea may conclude with th^ general verification, 
 without verifying by the record {d}. To a scvre facias upon a recogni- 
 zance against bail in error, if the defendant plead that the judgment is 
 pending and not determined, he need not conclude prout patet, &c. the plea 
 being in the negative (e). The useage and practice of the Court is not mat- 
 ter of conclusion to the country, for such usage is not admissible in a plea 
 which puts it in issue (/). 
 
 Where the plea contained a verification, it generally concluded with a Prayer of 
 pray^er of judgment in favor of the defendant, which was termed the de- J"'^S°i«'i'- 
 mand or petition of the plea (§•), as " wherefore the defendant prays judg- 
 ment if the said plaintiff ought to have or maintain his aforesaid action 
 thereof (A) against him, &c." This prayer, before the recent rule, ought 
 properly to have corresponded with, and be founded on, the commence- 
 ment of the plea, and the effect of the matters contained in the body of it ; 
 and therefore it was necessary that a plea of matter of defence arising after 
 the commencement of the suit should be concluded with a prayer as to the 
 further maintenance of the suit (t) : and a plea in abatement, which contain- 
 
 («) 1 Saund. 163 a, n. 3, and oases there (a) 1 Saund. 103 b, c; Com. Dig. Pleader, 
 
 cited; Com. Dig. Pleader, B. 83. B. 33. 
 
 (a;) Willes, 6. (i) Com. Dig. Pleader, E. 29; Willea, 
 
 (y) Ante, 556, 1 Saund. n. 7. 126. 
 
 (2) 1 P. Wms. 258, 259; 10 Mod. 160, (c) Ante, 556. 
 
 247; Fortes. 3^4; Barnes, 330; 4 T. R. 156; (rf) 1 M. & P. 102; 4 Bing. 428, S. C. 
 
 3 B. & P. 171; 6 Bing.686. To a special plea (e) 2 Salk. 520. 
 of bankruptcy, the pfaintiff may reply that {/) 4 Price, 122; see ante, 469. 
 the certificate was obtained by fraud, and such (g) 2 B. & P. 42-3; 2 Saund. 210 d; 4 East, 
 
 replication will be a good answer to the plea, 502. 
 though the enactment to that effect in 5 G. 2, (h) See 1 M. & P. 114. 
 
 0. SO, s. 7, is not repeated in 6 G. 4, c. 78; (i) 4 Bast, 502; ante, 552; see Steph. 2d 
 
 Horn V. Ion, 4 B. & Add. 78. ed. 445. 
 
 (1) Vide Hord v. Dishman, 2 Hen. & Mun. 660; Smith v. Walker, 1 Wash. 135; Service v 
 Heermance, 1 Johns. 91; Bailey v. Smith, 1 Boot, 243; Shafer v. Stonebraker, 4 Gill. & Johns. 
 .345; McClure v. Irwin, 3 Cowen, 313. 
 
 (2) Vide I/ytle v, Lee, 5 Johns, 112; Thomas v, Rumsey, 6 Johns. 26. 
 
••559 
 
 OF PLEAS IN BAR. 
 
 AN^ PAET3 ^^ ™3't''6rs in part abatement of the writ, must be pleaded accordingly (k). 
 6tH ^Th ■^'^* as the Court would ex officio give judgment in favor of the defendant 
 conclusion* ^''°°'^'^^'^§ *o ^^^ Substance of the plea, without reference to its conclusion 
 (1), an error with regard to the prayer of judgment in the concluding part 
 of the plea was not material, except in the case of a plea in abateme-rit {J). 
 In an action for debt, the defendant, in pleading a tender, *ought to have 
 concluded his plea by praying judgment if the plaintiff ought to have or 
 maintain his action to recover any damages against him ; for in that action 
 the debt is the principal, and the damages were only accessary: but in as- 
 sumpsit the damages are the principal, and therefore in pleading a tender 
 in that action the defendant ought to have concluded his plea with a prayer 
 of judgment if the plaintiff ought to have or maintain his action, to recover 
 any more or greater damages than the sum tendered, or any damages by 
 reason of the non-payment thereof (m). In pleading matters of estoppel, 
 the defendant in the conclusion of his plea should rely upon it (w) ; and 
 that established rule as applied to estoppel was expressly continued by 
 Reg. Gen. Hil. T. 4. W. 4, reg. 9. 
 
 How and 
 when to 
 object to 
 conclusion 
 of plea. 
 
 When no 
 prayer of 
 judgment 
 is necessa- 
 ry since 
 Beg, Gen. 
 Hil. T. 4 
 W. 4, reg. 
 9. 
 
 Conclusion 
 of tra^ 
 verses. 
 No protes- 
 tation to 
 be made. 
 Conse- 
 quences of 
 of defect in 
 a plea. 
 
 It was enacted by the statute of 4 & 5 Ann. c. 16, s. 1 (1), " that no 
 advantage or exception shall be taken of or for the want of averment of 
 lioc paratus est verificare, or hoc paratus est veriftcare per recordum ; or of 
 or for not alleging prout patet per recordum, or any other matter of like 
 nature, except the same shall be specially and particularly set down, and 
 shown for the cause of demurrer." Since this statute, a wrong or defect- 
 ive conclusion, either to the country or with a verification, &c. can only be 
 objected to by special demurrer (o). 
 
 We have just seen that Reg. Gen. Hil. T. 4. W. 4. reg. 9, orders that 
 " in a plea or subsequent pleading intended to be pleaded in bar of the 
 whole action generally (;?), it shall not be necessary to use any prayer of 
 judgment, but the case of an estoppel is excepted " (^). 
 
 Reg. Gen. Hil. 4 W. 4, reg. 13, orders that " all special traverses, or 
 traverses with an inducement of affirmative matter, shall conclude Jx) the 
 country, provided that this regulation shall not preclude the opposite party 
 from pleading over the inducement when the traverse is immaterial."! 
 
 Reg. 12 orders that " no protestation shall hereafter be made ,in any 
 pleading, but either party shall be entitled to the same advantage in that 
 or other actions as if a protestation had been made." 
 
 A defendant has a right to give evidence in support of his plea on which 
 an issue in fact has been taken, however defective such plea may be (jq). 
 
 (fc) Ante, 458, 460. 
 
 (I) Ante, 460; 1 M. & P. 124, 125; 4 Bing. 
 628 S C 
 
 (m)'2 Salk. 622, 623; 1 Ld. Eaym. 254; 
 Willes, 13. 
 
 (n) Co. Jiit. 303 b; Com. Dig. Pleader, E. 
 31 ; Estoppel, E. ; vide also 1 Saund. 825 a, n. 
 
 4; Willes, 13; Steph. 2d ed. 4^3; ante, 424, 
 426; 2 C. & P. 148. 
 
 (o) 2 Saund. 190, n. 5. 
 
 ( p) See the rule, ante; see the meaning of 
 those words, un(e,^664. 
 
 (5) Bowman v. Kostrow, 3 Nev. & Man, 
 551. 
 
 (1) The King v. Taylor, 5 Dowl. & Ryl. 431. Per Abbott, C. J. 
 
 (2) The fiist thirteen sections and the 20th and 27th sections, are in force in Pennsylvania, 3 
 Binn. 625; Koberts' Dig. 43. See laws of N. Y. sess. 11, c. 82, a. 6, 1 R. L. 120; 2 Key. Stat. 
 252,8.4. 
 
 t See American Editor's Preface. 
 
[ *560 ] 
 
 'V. OP SEVERAL PLEAS. V. 01' SEVE- 
 
 BAL FLEAS. 
 
 With respect to the pleading of several pleas to the same declaration, 
 we will^rs^ consider the former practice, and, secondly, the practice since 
 Reg. Gen. Hil. T. 4 W. 4.t 
 
 With respect to the former practice, we have already fully considered 
 doctrine of duplicity in pleading, not only as it affects pleading in general 
 but also as it more particularly relates to pleas in bar (r). Each plea, tak- 
 en separately, is still open to objection if it be double, that is, if it con- 
 tain two or more perfectly distinct and independfent answers to the same 
 charge, either of which would defeat it (s ). At common law a defendant 
 could not plead several distinct pleas to the same declaration or a part 
 thereof (f), which often led to much inartificial and repugnant pleading, as 
 it naturally induced the defendant to endeavor to crowd as many facts and 
 arguments into his plea as he possibly could (u). At length it was pro- 
 vided by the statute 4 & 5 Ann. c. 16, s. 4 & 5 (x) (1), (but which does not 
 extend to actions at the suit of the king (j'),) " that it shall be lawful for 
 any defendant or tenant in any action or suit, or for any plaintiff in re- 
 plevin, in any Court of record, with the leave of the Court, to plead as 
 many several matters thereto as he shall think necessary for his defence (z) ; 
 provided nevertheless that if any such matter shall, upon a demurrer join- 
 ed, be judged insufficient, costs shall be given at the discretion of the 
 Court ; or if a verdict shall be found upon any issue in the said cause for 
 the plaintiff or demandant, costs shall be also given in like manner ; unless 
 the judge who tried the said issue shall certify that the defendant or ten- 
 ant, or plaintiff in replevin, had a probable cause to plead such matter, 
 which upon the issue shall be found against him. Provided also, that 
 nothing in this act shall extend to any writ, declaration, or suit of appeal 
 of felony, &o. or to any writ, bill, action, or information upon any penal 
 statute." 
 
 The liberty to plead several pleas is confined to Courts of record; and 
 therefore if in the County Court, and other inferior Courts not of record 
 {a), the defendant plead two or more pleas to the same part of the decla- 
 ration, the plaintiff may demur for duplicity, or treat the second plea as 
 a nullity, and proceed to trial on the first (6). And in Courts of record 
 the defendant cannot plead non assumpsit (c), or non est factum {d), to 
 the whole declaration, and a tender as to part (2), for *one of these pleas [ *561 ] 
 goes to deny that the plaintiff ever had any cause of action, and the other 
 
 (r) Ante, 226 and 532. (y) Rex v. Caldwell, Forrest, 57. 
 
 (s) Id. (z) The statute does not extend to pleas in 
 
 (<) Ante, 632; 5 Bing. 46, 47. abatement. 
 
 («) 2 Eunomas, 141; see Boote's Suit at (a) See Bac. Ab. Courts. 
 Law, 104; Cowp. Eq. PI. 227; and Beames (b) Chitty v. Dendy, 1 Harr. & Woll. 
 
 PI. Eq. Index, "Flea." 169. 
 
 (x) The construction of , and practice upon, (c) 4 T. B. 194. 
 
 this statute, are stated in Com. Dig. Pleader, (d) Bla. Kep. 905; 5 Tr. 97; 4 Taunt. 
 
 E. 2, and Tidd, 9th ed. 6-54, 657. 459. 
 
 (1) Laws of If. Y. sess. S6,"c.56, s. 10; 1 R. L. 519; 2 Rev. Stat. 352, s. 9. 
 
 (2) And non est factum, and a tender to the whole declaration cannot be pleaded together. 
 Orgil V. Kimshead, 4 Taunt. 459. See Jackson v. Webster, 6 Munf. 462; 1 Ha'r. & Gil. 407; 
 15 Mass. 64, 55. Payment at the day, and payment before the day, cannot be pleaded together. 
 Thayer v. Rogers, 2 Johns. Cas. 152. 
 
 t American Editor's Preface. 
 
OP PLEJtS- IN BAE. 
 
 Ikf™:^^'°l"*S^ ^"^f't^ '^ *o tl'e extent of the sum tendered and paid into 
 oourt (1)_. In an action on a deed made beyond seas, the defendant re- 
 / lying in some of his pleas on matters of defence which necessarily imported 
 the esecution of the deed, the Court would not permit him to plead non 
 est factum (e) ; and the defendant will not be allowed to plead non-assump- 
 sit, and the stock-jobbing act (/) ; or non-assumpsit, and alien enemy (^). 
 Ihe Court of Common Pleas refused to allow the assignees of a bank- 
 rupt to plead in covenant on a lease non est factum, and that the premises 
 did not come to them by assignment (h). And in the exercise of their 
 discretion, that Court, in scire facias on a judgment, would noit permit the 
 defendant to plead, 1st, Payment; 2dly, Judgment by fraud; and 3dly, 
 That the judgment was upon a warrant of attorney obtained by fraud (A, 
 And where the plaintiff's title to an ad^owsonwas traced in quare impedit 
 through a period of two centuries, and the defendant's claim arose on the 
 alleged invalidity of a deed of 1672, the Court would not allow him to 
 traverse all the allegations in the declaration, or to plead more pleas than 
 were necessary to contest the deed of 1672 (A). Nor can the defendant 
 plead several matters which require different trials, as in dower, ne ungues 
 accouple en loyal matrimonie, and ne ungues seisie gue dower (l) (2) ; for 
 the first matter is triable by the bishop, and the other by a jury, and if the 
 former be found against the defendant, the judge cannot certify that he 
 had a probable cause for pleading it. Nor is the king bound by this stat- 
 ute ; and where he is plaintiff, the defendant cannot plead double without 
 leave of the attorney-general (m). Nor does this statute extend to any ac- 
 tion or information upon a penal statute (w) ; and as the king is not bound 
 by this statute (o), the defendant cannot plead double to an information of 
 intrusion (/>), in quare impedit, where the king is a party (g) ; or in- scire 
 facias for a bond debt to the king (r) ; nor could he plead double tillthe 
 32 Geo. 3, c. 58, in an information in nature of a guo warranto («). And 
 a defendant will not be permitted to plead the general issue and also a plea 
 of justification where a statute allows him to give the special matter in 
 evidence under the general issue (f). 
 
 [ *562 J With the above exceptions the defendant may in general in *^fferent 
 pleas state as many substantially different grounds of defence as may be 
 
 (i) 3 Taunt. 385. 262; 4 T. R. 701; 9 East, 469, Tidd, 9th ed. 
 
 (/) IB. &P. 222; IM. &P. 148. 655. 
 
 {g) 1 B. &P. 222, n. (a); 2 Id. 72; 12 (o) IP. Wm9.220; Forr. 57. 
 
 East, 206; 10 East, 326. {p) Parker, 1, 16. 
 
 (A) 5 Bing. 12. (j) Willes, 138; Barnes, 858, S. C- 
 
 (i) 2 Bing. 325. (r) Forrest, 67; Parker, 1. 
 
 (k) 5 Bing. 41; S. C. in 2 M. & P. 105, (s) 1 P. Wms. 220; Parker, 10. Decisions 
 
 and 4 Bing, 525. on tlie act, 8 T. R. 497; 9 East, 469; 5 B. & 
 
 (0 2 Bla. B«p. 1157, 1207. Aid. 774; 1 D. & R. 438,8. C; 2 Chit. R. 371; 
 
 (m) Willes, 533; Forr. Rep. Exoh. 67, A. Tidd, 9th ed. 656; 6 B. & C. 267. 
 
 B. 1801. (t) Neal u. Mackenzie, 4 Tyr. 670. 
 
 (ra) 2 Stra. 1044; Rep. Temp. Hardw. 
 
 (1) The pleas of general performance and non est factum, may be pleaded together, for de- 
 fendants are not confined to pleas strictly consistent.^ Union Bank v. Ridgely, 1 Har. & Gill. 
 824. 
 
 (2) So, nul liel record and nil debet, or payment,- cannot be pleaded together. Le Conte v. 
 Pendleton, 1 Johns. Cas. 104. S. C. Coleman, 72; Carnes v. Duncan, Coleman, 86. But in 
 covenant , non est factum may be joined with a plea of payment. Merrey v. Gay, 8 Pick. 383. 
 And see Cutts o. The United States, 1 Gall. 19, where in an action of debt on bond, non est fac- 
 tum and payment were pleaded without objection. See also, 5 Serg. and Rawle, 411. See also 
 Union Bank v. Ridgeley, 1 Har. & Gill. 324. 
 
V. OF SEVERAL PLEAS. 5(52 
 
 thought necessary, though they may appear to be contradictory or incon- ▼• o^ bevr- 
 sistent (m) (1). Thus, infancy, a release, or the statute of limitations, "^ ^'^*- 
 might be pleaded with non assumpsit ; and the statute of gaming; or usury 
 mig'ht be joined with non est factum (x) (2). So, in trespass, not guilty, 
 a justification, and accord and satisfaction ; or not guilty, and son assault 
 demesne may be pleaded together (y) ; add not guilty and liberum tene- 
 mentum may be joined (z). So, nontenuit, no rent in arrear, and infancy 
 may be separately pleaded in bar to the same avowry (a) (3). 
 
 When, however, the various pleas are clearly repugnant, and would 
 create unjust delay, the Court will sometimes rescind the rule to plead 
 double, and compel the defendant to rely on one of his pleas (6). And in 
 the Common Pleas a second perplexing plea containing matter which 
 might be given in evidence under the general issue is not allowed to be 
 pleaded therewith (c). We have already alluded to the instances in which 
 it is impolitic to plead the general issue(<i). As the defendant will not be 
 entitled to the costs of unnecessary pleas, though he succeed on the trial 
 upon one of them, unless the judge certify that he had probable cause for 
 pleading them, care should in general be taken to plead only defences which 
 will probably be sustained (e) (4). 
 
 It is hardly necessary to observe, that if a defendant succeed on either 
 of his several pleas, he is entitled to judgment, and will defeat the action, • 
 as regard the matters covered by such successful plea, although he may 
 be unable to substantiate his other pleas to the same matters charged in the 
 declaration (/). 
 
 Before the recent rules, when several pleas were pleaded under the Form of 
 statutes, each second and subsequent plea should in strictness, in the in- pl**<J"'g * 
 troductory parts of each, have stated that the same was pleaded " by subseqaent 
 
 plea before 
 
 («) See the instances. Com. Dig. Pleader, the rule to plead doable was rescinded, per -^S- '^n- 
 
 E. 2; Tidd, 9th ed. 655, 656. Bayley, J. in Draigh v. Straoh, 25th Feb. Hil. T. 4 
 
 (a;) Tidd, 9th edit. 656 ; see other instances, 1830. W- 4,reg. 5 
 
 id. 657; ante, 560, 661. (c) 6 Bing. 197. What are pleas of this 
 
 (y) 6 Bac. Ab. 418, and other instances, nature, and as to sham pleas, ante, 527, 
 
 id. 541. 
 
 {«) Tidd, 9th ed. 656. {d) Ante, 507. 
 
 (a) 1 Marsh. 74; 5 Taunt. 340, S. C. (e) 4 & 5 Ann. c. 16, s. 5; Tidd, 9th ed. 
 
 (*) 13 East, 255; and see 3 Bing. 635; 1 658; 7 Moore, 351.. 
 
 M. &P. 345; 4 Bing. 525; 5 Id. 42; ante, (/) The defendant is entitled to the general 
 
 560, 561. And where several pleas in cove- costs if he succeed on one plea, which is com'- 
 
 nant traversing title were pleaded, after de- plete answer to the action, 1 B. & Aid. 254; S 
 
 fendant had paid prior rent to the plaintiff. Taunt. 129. 
 
 (1) Gordon v. Pierce, 2 Fairf. 213; Cain v. Flynn, 1 Dana, 143. 
 
 Double pleas must be signed by counsel. Dubois v. Phillips, 5 Johns. 235; Satterlee v. Satter- 
 lee, 8 ib. 327. 
 
 (2) So, non est factum, a,ui a discharge by bankruptcy. Atkinson v. Atkinson, Str. 871; 
 Phillips V. Wood, Str. 1000. JVon est factum, and usury. Lechmere v. Rice, 2 Bos. & Pul. 12. 
 ^The general issue, and the statute of limitations. Da Costa v. Cartaret, Str, 889. In trespass, 
 a license and justification. Bac. Ab. Pleas, K. 3. In debt for rent upon a parol demise, nil 
 habuit in tenementis, and non demisit. Ibid. JVbn assu7n;)sit and infancy. Wilson v. Ames, 
 6 Taunt. 340. JVon demisit, and no rent in arrear. Van Holton v. Lewis, 1 M'Cord, 12. In 
 replevin, non cepit and property in the defendant. Shuter «. Page, 11 Johns. 196. So,- non 
 cepit, property in a stranger, and liberum tenementum. 'Barnes, 364. In debt for rent a ten- 
 der and eviction. Gary v. Jenkins, Str. 496. 
 
 (3) In replevin, pleas of non cepit and properly in another may be joined. Whitwell v. 
 Wells, 24 Pick. 25. 
 
 (4) In the Supreme Court of Massachusetts, a motion for leave to plead double to a writ of 
 error was denied, the court doubting whether the statute allowing double pleading extended to 
 writs of error. Parker v. Gilson, 1 Mass. 230. 
 
 Vol. I. 74 
 
*563 
 
 OP PLEAS IN BAB. 
 
 V. cm sHsra- leave of the Gomt, first had and obtained," (1) but t!ie omission, thougb 
 ail piEAg. nntechnical, appears to be no cause of demurrer (g-). If, in fact, no leave 
 had been obtained, the proper course was either to sign judgment, or to 
 apply to the Court to strike out all but one of the pleas (A) : *and the latter 
 course should be adopted where several pleas were improperly pleaded on 
 a rule improperly obtained. Where there were several pleas, it was advis- 
 able, in order to avoid prolixity and expense, if practicable, to refer, in sub- 
 sequent pleas to a statement of the same matter in a preceding plea, the 
 same as in the case of several counts in a declaration (i). But one plea 
 could not be taken advantage of to help or vitiate another, for every plea 
 must stand or fall by itself, unless expressly referred to by an appropriate 
 allegation (A;) (2) ; and the plaintiff cannot use one plea as evidence of the 
 fact which the defendant disputes in another plea (/) (3). So, where 
 there was a demurrer to part only of the pleading, the court in considering 
 what judgment should be pronounced upon the demurrer, could look only 
 to that part of the record upon which the demurrer arose, and not at other 
 , collateral parts of the record not connected with it ; and therefore upon a 
 demurrer to a defective plea, the defendant could not claim in aid of a repli^ 
 cation to another plea, by which the plaintiff admitted that he had become 
 a bankrupt and assigned his estate to an assignee, &c. (m). Where one 
 -plea refers expressly to the exception in another plea, and also contains an 
 •averment of performance of covenants in the said deed, which deed is set 
 forth in the plea referred to, but not mentioned in the exception to that 
 plea, both pleas may be taken together (w). 
 
 Where the plaintiff signed judgment for want of plea, because the rule 
 to plead several matters erroneously entitled 0. and W. instead of 0. and 
 W. and another, the Court of C. P. set aside the judgment without costs, 
 on an af&davit that the pleas were true, and that the defendant had a good 
 defence (o). 
 
 2dly. Of The liberty to plead several pleas having been abused, and the usual ex- 
 
 sevieral ^.^gg g^j. geveral varying pleas to avoid the risk of variance, having been in 
 
 MBM Keg. a great measure removed by the power afforded to the judge trying a cause 
 
 Gen. Hii. to amend even during the trial, in case of variances, the judges thought it 
 
 ■Re* T('^' advisable by a general rule, to qualify the liberty of pleading several 
 
 ^ ' pleas, given by 4 & 5 Ann. c. 16, and therefore promulgated the rule of 
 
 Hil. T. 4 W. 4,1 which in terms prohibits more than one plea, stating the 
 
 same subject-matter of defence, but varying only in statement, description 
 
 Bale to 
 
 plead 
 
 double. 
 
 {g) Andr. 108 ; 1 Wils. 219 ; Cowp. 500, 501 ; 
 ted vide 1 Hen. Bla. 276, 278. 
 
 (A) Id.; Tidd, 9th ed. 668; 1 B. & P. 451. 
 
 (i) Ante. US; WUleB, 380; 1 Marsh, 33, 
 85; 5 Taunt. 228, S. C. 
 
 (k) Willes,380; 1 Marsh. 38; 5 Taunt. 228, 
 S. C; 1 M. & P. 147. 176; S. C. in 4 Bing. 
 435, and 2 Y. & J. 11. 
 
 (Z) 5 Taunt. 228; 1 Marsh. Bep. 83, 
 S. C, 
 
 (m) 6 B. & C, 216; 9 D. & R. 369, S. C. 
 
 (n) Macdougal v. Robertson, 1 Younge & 
 J. 11. 
 
 (o) 1 Bing. 187; 7 Moore, 599, S. C. 
 
 Ip) See fully 8 Chitty's Gen. Prac. 781 to 
 737. 
 
 (1 Bee Richardson v. Whitfield, 2 M'Cord, 150. 
 
 (2) Plea pleaded under leave of the Court must contain, in each of them, sufficient matter in 
 law, to bar the plaintiff's action, and they cannot be made to depend on fects stated in other 
 pleas. Currie ». Heniy, 2 Johns. 431; Sevey t;. Blaoklin, 2 Mass. 543; Clements v. Cribbs, 19 
 Alabama, 241. 
 
 (3) See Alderman v. French, 1 Pick. 1, contra. But see Cilley v. Tennep, 2 New Harap. 19, 
 and Starkie on Evidence, (Am. ed. 1828,) 296 n. (1). 
 
 t See American Editor's Fre&ce. 
 
V. OP SEVERAL PLEAS. *564 
 
 or eircumstauces. Formerly, and when the 4 Ann. c. 16, was first enact- '^- o^ ^eve- 
 ed, the practice was in all cases for the defendant's counsel actually to ^^ p™^- 
 move the Court for leave to plead more than one plea, and the Court in 
 each case actually *exercised its discretion whether or not to allow the 
 several pleas. But it soon became, especially in the Court of King's 
 Bench, too much as of course for a defendant to plead as many pleas as 
 he might think fit ; and it became expedient to repress the practice by the 
 express Reg. Gen. Hil. T. 4 W. 4, reg. 6.f However, inconsistent 
 pleas may still be pleaded under the new rules, if intended bona fide to 
 support different substantial grounds of defence ; for per Bosanquet, J. 
 " The word ' inconsistent ' was studiously kept out of the rules, for the 
 subject was discussed, and it was felt that there might be cases in which 
 pleas might be inconsistent with each other, and sustain substantially differ- 
 ent defences. The object had in view was to prevent the same defence 
 being pleaded in different forms '^ (g). 
 
 However, since the pleading rules prohibited several pleas of the same 
 subject-matter of defence, a defendant may still plead as many pleas of dif- 
 ferent matters of defence as may be reasonable (r). 
 
 The Reg. Gen. Hil. T. 4 W. 4, reg. 5,t expressly orders " that sev- 
 eral counts shall not be allowed, unless a distinct subject-matter of com- 
 plaint is intended to be established in respect of each ; nor shall several 
 • pleas, or avowries, or cognizances be allowed, unless a distinct ground of 
 answer or defence is intended to be established in respect of each." The 
 rule then gives several instances when or not a second count shall or not 
 be allowed (s), and proceeds thus to pleas. 
 
 Pleas, avowries, and cognizances, founded on one and the same princi- instances 
 pal matter ; but varied in statement, description, or circumstances only, °^^ ^^w. 
 (and pleas in bar in replevin are within the rule), are not to be allowed, ries, &o. 
 
 Ex. gr. Pleas of solvit ad diem, and of solvit post diem, are both pleas Payment, 
 of payment, varied in the circumstances of time only, and are not to be 
 allowed. 
 
 But pleas of payment, and of accord and satisfaction, or of release, are Accord and 
 distinct, and not to be allowed. aatlsfao- 
 
 Pleas of an agreement to accept the security of A. B. in discharge of r™' 
 the plaintiff's demand, and of an agreement to accept the security of C. Liability of 
 D. for the like purpose, are also distinct, and to be allowed. third 
 
 But pleas of an agreement to accept the security of a third person in P*''y- 
 discharge of the plaintiff's demand, and of the same agreement, describ- to^fortear 
 ing it to be an agreement to forbear for a time, in consideration of the same in con- 
 security, are not distinct ; for they are only variations in the statement of gfj^^v'jj?!' 
 one and the same agreement, whether more or less extensive, in conside- of tUrd ' 
 ration of the same security, and not to be allowed. party. 
 
 *In trespass quare clausum fregit, pleas of soil and freehold of the de- [ *565 ] 
 fendant in the locus in quo, and of the defendant's right to an easement ■^**- '*"•• 
 there — ^pleas of right of way, of common of pasture, of common of turbary, right'of' 
 and of common of estovers, are distinct, and are to be allowed. way, rigl»t 
 
 (g) Dueere v. Triebner, 3 DowL 133; 7 326, 509. 
 Bing. N. C. 266, 267. (s) See ante, 414, 416; and see the rvjle at 
 
 (r) Hart v. Bell, 1 Hodges' Bep. 6, 16, 18; length, post. Appendix. 
 
 3 Dowl. 133, 136, 415 ; 1 Bing. N. C, 266. 323. . 
 
 t See American Editor's Prefiwe. 
 
^^^ OF PLEAS IN 'BAB. 
 
 eIl™" : ^"* P^^f ' of "g'lt of common at all times of the year, and of such right, 
 
 at particular times, or in a qualified manner, are not to be allowed. 
 
 ofoommon So pleas of right of way over the /ocus in quo, varying the termini or 
 tZary ^^^ purposes, are not to be allowed. 
 
 and esto- Avowries for distress for rent, and for distress for damage feasant, are 
 vers. to be allowed. 
 
 fommo"/ -^"^ avowries for distress for rent varying the amount of rent reserved, 
 Distressfor 0^' ^^^ t™^ at which the rent is payable, are not to be allowed, 
 rent, and The examples, in this and other places specified, are given as some in- 
 feTsalt Stances only of the application of the rules to which they relate ; but the 
 Distress for principles contained in the rules are not to be considered as restricted by 
 rent. the examples specified. 
 
 The^cases The 6th and 7th rules then provide the remedy for the violation of 
 mentioned ^^"^^ ^^^ ^*"l6> ^s welPin the case of an improper second count as in the 
 as instan- case of an improper second plea (f). The practice as to the permitting- 
 ces only, or refusing several pleas is stated in the author's work on General Prac- 
 tice (m). 
 A second The Eeg. Gen. Hil. T. 4 W. 4, reg. 11, f orders, that " it shall not 
 nirstSe ^® necessary to state in a second or other plea or avowry that it is plead- 
 that it is ed by leave of the Court, according to the form of the statute, or to that 
 pleaded by effect." But still Eeg. Gen. Hil. T. 2 W. 4, reg. 34, orders, " that if a 
 leave, &e. ^arty pleaded several pleas, avowries, or cognizances, without a rule for 
 that purpose, the opposite party shall be at liberty to sign judgment " (a;). 
 But where a rule to plead several matters had in fact been obtained, though 
 by mistake intituled C v. W. instead of C. v. W. and another, the Court 
 of C. P. set aside the judgment without costs, on an affidavit that the 
 pleas were true, and that the defendant had a good defence («/), and which 
 decision, although before this recent rule, would still apply in practice. 
 
 VI. OF 
 
 PLEAS BY 
 SETEBAL 
 
 VI. OP PLEAS BY SEVERAL DEFENDANTS. 
 
 DEFEND- In general, when the defence is, in its nature joint, several defendants 
 ANis («). jjj^y. j^ij^ jjj ^jjg g^jjjjg plgjj^^ Qj, ^jjgy jjjg^y. gg^gp^ wlthout committiug *fault 
 
 [ *566 ] of duplicity in pleading (a) (1), and one defendant may plead in abate- 
 ment (6) ; anotlier in bar, and the other may demur (c) ; except in an ac- 
 tion against husband and wife, when the husband must join in the plea 
 with his wife {d). And by way of defence two may join, althougli the 
 subject-matter of their plea be several, as in an audita querela (e), or 
 though their different defences may be inconsistent (/) ; and in trespass 
 
 (i) See the rules, ante, il6; and post, Ap- (6) It is said arguendo in Hob. 146, that 
 
 pendix. defendants cannot sever in dilatory pleas, ted 
 
 (u) '3 Chitty's Gen. Prac.,782 to 737. qucere, see id. 250; Stephen, 2d ed. 298, n. 
 
 (a;) Jervis's Rules, 51, n. (i); and Hoct- (re). The practice is quite otlierwise. 
 
 ley ». Sutton, 2 Dowl. 700. (c) 2 Vjn. Ab 76; Action, Joinder, H. D.; 
 
 (y) 1 Bing. 187; 7 Moore, 599, S. C. Com. Dig. Pleader, E. 35. 
 
 (z) As to seTeral defendants joining or (d) Com. Dig. Pleader, 2 A. 8; Cro, Jao. 
 
 severing in their pleas, 8 Chitty's Gen. Prao. 239, 288. 
 
 437, 7«7. (e) Cro. Eliz. 473. 
 
 (a) Jlnte, 226, 232; Stephen, 2d ed. 298. (/) 2 Hen. Bla. 896; 2 Mod. 67. 
 
 (1) Stillwell V. Hasbrouck, 1 Hill, 661. 
 t See American Editor's Preface. 
 
VI. OF PLEAS BY SEVERAL DEFENDANTS. , 566 
 
 against two for a battery, they may jointly plead that the plaintiff assault- ^i- <>'' 
 ed them, and that they in self-defence beat the plaintiff; or they may sev- l^^^^ 
 er (g-) ; or they may jointly plead that they were servants of N. and com- defend- 
 mitted the assault in his defence. So, two may jointly justify an arrest •^''ts. 
 under a joint warrant (A). And one of several defendants may plead not 
 guilty, and the other a justification as his servant, for one defendant can- 
 not by pleading oust the other of his defence (i). 
 
 Joint-tenants and co-parceners must join in an avowry, and cognizance 
 as their bailiff should be for the entire rent (7') ; but tenants in common 
 must sever (1), and the avowry of each must be de una medietate of the 
 whole rent, and not of a certain sum which amounts to a moiety (fc). * 
 When the action is against one of several tenants in common, he should 
 avow for his own proportion, and in general he makes cognizance as bailiff 
 of his companion for the residue (/) ; or he may avow only for his undivid- 
 ed share of the rent (m). If the action of replevin be against two tenants 
 in common, they should join, one avowing, and the other as his bailiff mak- 
 ing cognizance, for an undivided moiety of the rent ; and then the one who 
 first made cognizance avowing in his own right, and the other who first 
 avowed making cognizance as his bailiff for the other undivided moiety (n). 
 If three tenants in common distrain thirty beasts, it is said they each should 
 avow separately for ten (0) ; and one tenant in common cannot avow alone, 
 for taking cattle damage feasant, but he ought also to make cognizance as 
 bailiff of his companion (p). And where two persons are defendants in re- 
 plevin they cannot, it seems, make several avowries in their own right for 
 distinct matters ; thus, if one avow for rent service, and the other for rent- 
 charge, both the avowries shall abate, for the Court would be in doubt to 
 which of them return should *be awarded {q^. Several persons having [ *567 ] 
 several estates cannot join in prescribing, because the prescription of one 
 does not concern the other (r) ; though an exception has been allowed 
 where two persons commit a joint trespass (s). So personal defences, as 
 coverture, infancy, &c. should be pleaded separately ; and one of several 
 defendants must justify by command of another defendant who suffers judg- 
 ment by default, for his act shall not take away the ground of defence 
 from his servant {t). 
 
 A plea which is bad in part is bad in toto (u) ; if, therefore, two defend- 
 ants join in a plea, which is sufl&cient for one, but not for the other, the 
 plea is bad as to both (2), for the Court cannot sever it and say that one is 
 guilty, and that the other is not, when they all put themselves on the same 
 
 {ff) 2 Vin. Ab. 76.pl. 14. (m) 5 T. K. 246; 2 Hen. Bla, 387. 
 
 (A) Id. pi. 15, 16. (Ji) Salk. 207; 5 T. K. 247; see the form 
 
 (i) 2 Mod. 67. post, vol. iii. 
 
 (j) Bac. Ab. Joint-tenant, K. ; KepleTin, (0) /li.; Co. Lit. s. 314, 317. 
 
 K.; 5 T. B. 246; 1 Lev. 109; Sir. T. Raym. (p) 2 Hen. Bla. 387. 
 
 80. (g) 6 Co. 19 a, 38 b. 
 
 (k) Miter in covenant for rent, 4 B. & 0. (r) 2 Vin. Ab. 56, pi, 47; 76, pi. 18. 
 
 57; 6 D. & R. 72, S. C. (s) Id. 76, pi. 18; «ee ante, 9, 10. Sed 
 
 (I) Bac. Ab. Joint-tenant, K. Replevin. K.; quare. 
 
 5 T. R. 246; 1 Lev. 109; Sir T. Raym. 80; 2 (t) 2 Mod. 67. 
 
 Vin. Ab. 59, pi. 27. (u) Ante, 546. 
 
 (1) Decker v. Livingston, 15 Johns. 482. 
 
 (2) Vide Moore v. Parker, B Mass. 310, 312; Sohermerhom v. Tripp, 2 Caines, 108; Mars- 
 teller V. M'Lean, 7 Cranch, 158; Bradley v. Hunt, 7 Cow. 330. The above rule has reference 
 only to pleas of justification, in which the facts charged are necessarily confessed, and not to 
 general issue, which denies the &ct3. Eayden v. Nott, 9 Conn. 367. 
 
667 
 
 OP PLEAS IN BAR, 
 
 pms°BT ^^^^^ ^^<* ^^)' '^^"^' ^* ^^^ ^^^^ ^^^^ *^^* ^^ ^° officer plead separately un- 
 BEVEEAL^ ^^^ ^ ^^'^^ ^^ fi- f"" ^^ other process, he need not state the judgment on 
 DEFEND- ■which the writ was founded ; but if he join in the plea with the plaintiff in 
 ^J^s. the former action, and the judgment be not stated, the plea will be bad as 
 to both the defendants, unless the plaintiff in the former suit justify merely 
 in aid of the officer {jf). But this rule does not apply where the objection 
 to the plea is merely on account of surplusage {z) ; and if several executors 
 join in the same plea o^ plene adminislravit, each will only be liable to pay 
 the assets found by the jury to be in his own hands, though it is more usual 
 for each executor to plead separately (a) (2). In an action of trespass 
 * against several defendants, if it be expected that one of them will be ac- 
 quitted, and that the others will be found guilty, it is advisable for the for- 
 mer to plead separately, for otherwise he could not obtain 40s. costs (6). 
 If several defendants join in the plea, and it is in the singular number, it 
 will be bad on demurrer (c). 
 
 The plaintiff may, in an action in form ex delicto a^gsansi several defend- 
 ants enter a nolle prosequi as to one of them (c[) ; but in actions in form 
 ex contractu, unless the defence be merely in the personal discharge of one 
 of the defendants, a nolle prosequi cannot be entered as to one defendant 
 without discharging the others, for the cause of action is entire and indi- 
 visible (e) (3). And upon the same principle, in the latter form of action, 
 the success of one defendant upon a plea which goes to the merits, will 
 [ *568 ] preclude the plaintiff from *obtaining any benefit from a judgment by de- 
 fault suffered by another defendant (/). If the defendants plead several- 
 ly, the plaintiff may demur to one plea, and join issue on the other (g-) (4), 
 and may in an action ex delicto afterwards enter a nolle prosequi on the de- 
 murrer, and' proceed against the other defendant (A), or if several issues 
 are joined, he may enter a nolle prosequi to one before or after judgment 
 (i). If defendants join in a plea, they should not sever in the rejoinder ; 
 and they cannot unite in the latter pleading if they did not concur in the 
 plea to the declaration (k). , 
 
 Defects ^g a defective declaration may be aided at common law by the plea or 
 
 aid™ ' ^J *^^ verdict, so a defective plea may be aided in some cases by the rep- 
 lication or verdict (5) ; and the statute of jeofails and the statute for the 
 amendment of the law, also aid many mistakes after verdict or' judgment 
 {I). These rules will be fully considered hereafter. 
 
 (x) 1 Saund. 28, n. 2; 8 *. E. 376, 877; 1 (e) 1 Wils. 89; 8 Esp. Eep. 76; 2 M. & Sel. 
 
 Stra. 509, 994, 1184; 8 Wils. 844; 3 East, 28, 444; Tidd. 9tli ed, 682; aivte, 45. 
 
 132, 133; 2 Bast, 268. (/) -^riU, 44. 
 
 («) Id. 2 East, 263, 270; 8 East, 132, 138, {g) Cro. Car. 239, 242; Hob. 70; Com. 
 
 142; 3 W^ils. 376. Constable joining in bad Dig. Pleader, E. 85. 
 
 special plea, 2 Bing. 523. (ft) U. When not, see 4 T. R. 860: 1 
 (z) 3 T. R. 8777 Saund. 285, note 5; Tidd, 9tb ed. 681, 682, 
 (a) 1 Saund, 886, note 10. (i) Id- 
 lb) 2 M. & Sel. 172; Tidd; 9th ed. 986; 4 (7c) 4 B. & C. 704; 7 D. & R. 187, S. C; 
 
 C. & Aid. 48, 700. Stephen, 2d ed. 298, 299. 
 
 (c) Lutw. 1581; Com. Dig. Pleader, E. 85. (/) 4 & 6 Ann. c. 16; Com. Dig. Pleader, 
 
 \d) Salk. 457; 1 Wils. 306; Tidd, 9th ed. E. 87 to 89; Vin. Ab. lUpUoatiop; 1 Saund. 
 
 682. 228 a, note 1. 
 
 (1) Higley v. Williams, 16 Johns. 217. 
 
 (2) See App. v. Driesbaoh, 2 Rawle, 287. 
 
 (3) Beidmau v. Vanderslioe, 2 Kawle, 884- 
 
 (4) Vide Lansing U.Montgomery, 2 Johns. 882. 
 
 (5) See Gavene v. M'Miohael, 8 Serg. & Rawl«, 441; Rockfellow v. Donnelly, 8 Cow. 
 656. 
 
[ *S68 ] 
 
 Vlt. PLEAS 
 VII. OP PLEAS OF SET-OFJ'. OP set-opf, 
 
 AND HEBE- 
 
 In actions upon simple contracts or specialities, for the payment of mon- ^^ ' 
 ey, the defence frequently is a cross demand for a debt due from the plain- cbedh. 
 tiff to the defendant. We will therefore now examine the law of set-off 
 and mutual credit (m), but so far only as it is connected with the subject 
 of pleading. 
 
 At common law, and independently of the statutes of set-off, a defend- 
 ant is in general entitled to retain, or claim by way of deduction, all just 
 allowances or deniands accruing to him, or payments made by him, in res- 
 pect of the same transaction or account, which forms the ground of action. 
 But this cannot be termed a set-off in the strict legal sense of the word, 
 because it is not in the nature of a cross demand, or a mutual debt, but 
 rather constitutes a deduction, rendering the sum to be recovered by the 
 plaintiff so much less (w). So, where demands, originally cross, and not 
 arising out of the same transaction, have by subsequent express agreement 
 been stipulated to be deducted, or set-off against each other, only the bal- 
 ance is the debt and sum *reooyerable, without any special plea or notice [ *569 ] 
 of set-off ; though it is advisable in most cases, and necessary when the 
 action is on a specialty, to plead it (o) ; and since Reg. Gen. Hil. T. 4 
 W. 4, a special plea claiming such deduction would in most cases be re- 
 quisite. So if an account has been settled, and a balance struck between , 
 the parties, it may be given in evidence on the general issue ; though it 
 seems a defendant cannot reduce a plaintiff's demand for goods sold, by 
 producing a debtor and creditor account in the handwriting of the plaintiff's 
 clerk, showing goods to have been sold by the defendant to plaintiff, un- 
 less he has pleaded or given a notice of set-off (p). 
 
 In an action for work and labor or goods sold, though the contract was When or 
 at a certain price, the defendant may, at least after a notice, prove under «o* deduc- 
 the general issue, in reduction of the claim, that the work was improper- b" made^ 
 ly done (g) (1) ; or that the goods were not so good as warranted (r) (2). under non- 
 And where in an action for the price of seed sold, and which was war- assumpsit, 
 ranted to be good new growing seed, it appeared that, soon after the sale 
 the buyer was told that it did not correspond with the warranty, but 
 afterwards sowed part, and sold the residue, it was held to answer to 
 
 (m) As to the law of set-off in general, (n) 1 Bla. Rep. 651; 4 Burr, 2133, 2221, 
 
 see Montague on Set-off; Tidd, 9th ed. 662 and other cases in Montague's Law of Set-off, 
 
 to 668; 3 Chit. Com. Law, 669; and see 1 to 3. 
 
 Chit. Col. of Statutes, 874, tit. " Set-off," a ' (o) 5 T. E. 105; 3 T. R. 599; 3 Taunt. 76; 
 
 fiillnote; Eden's Bank. Law, 2d edit. 186, 2 Taunt. 175; 1 Bla. Rep. 651; 4 Burr. 
 
 Montag. & Gregg. Bank. Law, 242 to 261; 2133; Montague's Law of Set-off, 1 to 3, and 
 
 Manning's Index, tit. "set-off;" Chitty, jun. 28, note 2 (p). 
 on Contr. 327 to 335; Selw. N. P. tit. "As- (p) 1 C. & P. 133. 
 
 sumpsit;" Gibson v. Bell, 1 Bing. N. 0. 746. (j) 7 East, 479; 1 Campb. 38; 2 Id. 63, 
 
 Set-off cannot be pleaded to an action for 3 Stark. Rep. 6; and see an(e, 413, note (i). 
 not repairing, Seal «. Burrell, 4 Nev. & Man. (r) 1 Campb. 195; 3 Stark. Rep. 32; and 
 
 200, 201; Auber v. Lewis, Man. Dig. 2d ed. see ante, 518, note (x). 
 251, 
 
 (1) See Heck v. Shener, 4 Serg. & Rawle 249. 
 
 (2) Steigleman v. Jeffries, 1 Sergi & Rawle, 477> See Cornell v. Green, 10 Serg. & Rawle, 
 14; Shawi;. Badger, 12 Sergi & Rawle, 275,; Light v. Stoever, 12 Serg. & Rawle, 431; Harper 
 o. Kean, 11 Serg. & Kawle, 280. 
 
569 OP PLEAS IN BAS. 
 
 VII. MBAs the action upon the general issue that the seed was wholly unproductive 
 OF sET-orF. ^^^ worthless (s). But it has been held that negligence in the conduct 
 of a cause, cannot be set up as a defence to an action on an attorney's 
 bill ; at least unless it was such negligence as to deprive the defendant of 
 all possible benefit from the cause (<). And if a consignee of goods ac- 
 cept any benefit from the carriage, he cannot defend himself from the pay- 
 ment of freight, on the ground that the goods have been damaged by 
 the master in carrying them, although the damage exceed the amount of 
 the freight (u). 
 
 So, in an action by a servant against his master for wages, the latter 
 cannot in general set off or deduct the value of goods lost or damaged 
 by the negligence of the former, unless it can be proved to have been 
 part of the original agreement between them that the servant should pay 
 out of his wages, for all his master's goods lost through his negligence, in 
 which case the value of the goods lost may, under the general issue, be 
 deducted from the amount of the wages (x). Where by the custom of the 
 hat trade, the amount of the injury sustained by the hats in the process of 
 dyeing, is always to be deducted from the charge of dyeing, the defend- 
 ant is entitled te such deduction, in an action brought by the dyer, with- 
 [ *570 ] out giving any notice of set-off and *although there has not been any pre- 
 vious adjustment of the amount of the damage done (3/). And it is a 
 clear rule at common law that if a principal permit his factor to assume 
 the apparent ownership of goods, and to sell them in his, the factor's 
 , own name, the vendee, who bought them in ignorance that the factor act- 
 ed merely as an agent, may, to an action by the principal for the price, 
 set off a debt due to him from the agent (z) ; and this defence may be giv- 
 en in evidence under the general issue, or specially pleaded in bar (a). 
 The Stat- But before the statutes of set-off, where there were cross demands uncon- 
 utes 2 Qi nected with each other, a defendant could not in a court of law defeat the 
 13* and 8^ action by establishing that the plaintiff was indebted to him even in a larger 
 6.2,0.24, sum than that sought to be recovered, and relief could only be obtained in 
 as to set- a Court of equity- (Z»). To remedy this injustice, it was enacted by the 2 
 °^' Geo.'2, c. -22, s. 13 (c), " that where there are mutual debts between the 
 
 plaintiff and defendant, or if either party sue or be sued as executor or ad- 
 ministrator, where there are mutual debts between the testator or intes- 
 tate and either party, one debt may be set against the other ; and such mat- 
 ter may be given in evidence upon the general issue, or pleaded in bar as 
 the nature of the case shall require, so as at the time of his pleading the 
 general issue, where any such debt of the plaintiff, his testator or intestate, 
 is intended to be insisted on in evidence, notice shall be given of the par- 
 ticular sum or debt so intended to be insisted on, and upon what account it 
 became due, or otherwise such matter shall not be allowed in evidence 
 
 (s) 9B. &C. 259; 4Maa.&Ry. 208, S. 137; Chit. Col. of Statutes, 876, note, tit. 
 
 C. •' Set-off." 
 
 (t) 2 New B. 136; 7 B. & C. 443; 1 M. & (o) 4 B. & 0. 547; 7 D. & R. 42, S. C. 
 
 K. 241, S. C; 1 B. & M. 317; 3 Campb. 451; (b) 3 Burr. 420, 1230; 4 Id. 2220; Mon- 
 
 Peake Rep. but see 2 Campb. 63, 64; ante, tague on Set-off, 1 to 8, 16. 
 
 516, note (x). (c) This is intituled " An Act for the Ee- 
 
 (u) 6 Taunt. 65; 4 Campb. 119. lief of Debtors with respect to the Belief of 
 
 (x) 4 Campb. 134. their person." It is singular that the impor- 
 
 (y) 1 Stark. Rep. 343. tant provisions in this and the following act 
 
 (z) See the statute 6 Geo. 4 c. 94; 7 T. respecting set-q^ should be introduced in stat- 
 
 E. 359, 360, note; 1 M. & Sel. 576; 2 utes in all other respects relating only to in- 
 
 Marsh. 501; Holt, N. P. C. 124; 2 B. & Aid. solvent debtors. 
 
Vli. OP PLEAS OP SET-OPP. 570 
 
 upon such general issue." This clause was made perpetual by 8 Geo. 2, vn. plbas 
 c. 24, s. 4 ; and it having been doubted whether mutual debts of a different "*' ^^^-o"- 
 nature could be set against each other (d), it was by the last-mentioned 
 statute (e) further declared, " that by virtue of the said clause mutual debts 
 may be set against each other, either by being pleaded in bar or given in 
 evidence under the general issue, in the manner therein mentioned, not- 
 withstanding that such debts are deemed in law to be of a different natur-e, 
 unless in cases where either of the said debts shall accrue by reason of a 
 penalty contained in any bond or specialty, and in all cases where either 
 the debt for which the action hath been or shall be brought, or the debt in- 
 tended to be set against the same hath accrued or shall accrue by reason- 
 of any such penalty, the debt intended to be set off shall be pleaded in 
 bar, in which plea shall be shown how much is truly and justly due on 
 either side : and in case the plaintiff shall recover in any *such action or [ *"571 J 
 suit, judgment shall be entered for no. more than shall appear to be truly 
 and justly due to the plaintiff after one debt being set against the other as 
 aforesaid." 
 
 These statutes were passed for the benefit of defendants, and they are 
 not imperative, so that a defendant may waive his right to set off, and 
 bring a cross action for the debt due to him from the plaintiff (/) (1) ; 
 and where he is not prepared at the time the plaintiff sues him to prove 
 his cross demand, it is most advisable not to plead or give notice of set-off, 
 for in case he should go into evidence upon the trial in support of his cross 
 demand, and fail in the attempt, he cannot afterwards proceed in a cross 
 action for the amount ; and a party cannot bring an action for money which ' 
 
 he has succeeded in setting off in a former action against him, although, if 
 the set-off were more than sufficient to cover the plaintiff 's demand in the 
 former action, the defendant therein may maintain an action foi" the sur- 
 plus (^). 
 
 The principal rules upon the subject of set-off may perhaps be here The rules' 
 concisely alluded to with propriety. The statutes require, 1st, That the ""^fP^'^S^ 
 debt sued for, and that sought to be set off, should be mutual debts, and 
 due to each of the parties respectively in the same right or character (Ji)', 
 so that a joint debt cannot, by virtue of the statutes, and in the absence of 
 an express agreement to that effect, be set off against a separate demand, 
 nor a separate debt against a joint one (J) (2) ; but a debt due to a defend- 
 atit as surviving partner may be set off against a demand on him in his own 
 
 (d) Willes, 262. M. & P. 502; 4'Bing. 573, S. C. In actions 
 
 (e) Sect. 5. by and against husband and wife, or the 
 (/) 2 Campb. 595; 5'fPaunt. liS. But husband only, or by or against executors or 
 
 the plaintiff may prevent such cross action administrators, or trustees, &o. see Chit. Col. 
 
 by allowing the set-off, and having it indorsed of Stat, ubi supra. 
 
 on the postea; seel Campb. 252 po^t. One (i) 5 M. & Sel. 439; 2 Taunt. 173;'"4 
 
 party cannot arrest another for the amount of Bir^. 217; Montag. 28; Eden, 2d ed. 197; 
 
 one side of account without deducting what is 10 Ves. 105; 11 Id. 517; 1 Y. & J. 180. 
 
 due on the other, 3 Bar. & Ores. 139 ; 4 D. & But a claim on a joint and several bond cxe- 
 
 B. 653, S. 0. cuted by the plaintiff may be set off to an 
 
 (g-) 3 Esp. Eep. 104. action brought by him, 2 T. E. 32. See fur- 
 
 (A) See further upon this rule. Chit. Col. ther, Chit. Col. of Stat. tit. " Set-off," 876, 
 
 of Statutes, 876, tit. " Set-off," note. As to note. 
 
 set-off between principal and agerd id.; 1 
 
 (1) Carpenter v. Butterfield, 3 Johns. Cas. 146, alitor in New Jersey, Sohenok ». Sohenolt, 5 
 Halst. 276; Vide Gilliat v. Lynch, 2 Leigh. 498. 
 
 (2) Francis v. Band. 7 Conn. 221. But see Crist, v. Biindle, 2* Bawle, 121^ and Stewart v. 
 Coulter, 12 Serg. & Bawle, 262, 446. 
 
 Vol. I. 75 
 
S71 Of PLEAS IN BAH. 
 
 Tu. MB4S right, and vice versa (k) (1). Nor can there be any set-off at law or in 
 oiMx-OFf. gq^j^y if one of the debts be due to the party in his private right, and the 
 other be claimable by his opponent in autre droit, that is, as assignee of a 
 bankrupt, executor, &c. {l) (2). 2dly, With respect to the nature of the de- 
 mands to be set-off against each other, it will be remarked, that the statutes 
 speak only of mutual debts ; consequently the demand of each party must 
 be in the nature of a debt ; so that a set-off is excluded in all actions ex 
 delicto ; and it cannot be admitted even in actions ex contractu, if the claim 
 [ *572 ] of either party be for uncertainty or unliquidated damages, as for *not de- 
 livering goods according to contract, &c. (m). But if the plaintiff declare 
 specially in assumpsit, with the common counts, (as in assumpsit for not 
 accounting, with a count for money had and received) and he might recov- 
 er his whole demand, as well upon the common counts as upon the special 
 count, the benefit of a set-off may be obtained upon the common count, 
 and the plaintiff shall not be permitted to exclude it by professing to rely 
 upon the special count only (w). It has been held that a debt of iw- 
 ferior degree cannot be set-off against one of higher degree, not even 
 a bond against rent, because the latter is higher than the former (o). 
 And 3dly, The debt attempted to be set-off must be completely due and 
 in arrear at the time the action was commenced, not merely at the time 
 of pleading {p^ ; and it must at the former period, have been a legal 
 and subsisting debt, and not barred by the statute of limitations (g), or 
 satisfied in law in consequence of the debtor having been taken in execu- 
 tion upon a judgment by which it was recovered (r). But an attorney 
 may set off his bill although it was not delivered a month before the com- 
 mencement of the action ; but it ought, if possible, to be delivered time 
 enough to be taxed, and at least should be delivered sufficiently early to 
 prevent the plaintiff from being taken by surprise at the trial (s). The 
 pendency of an action for the debt set-off (<), or of a writ of error where 
 the set-off is upon a judgment (m), will not however defeat the right. 
 
 {*•) 6 T. R. 498; 6 Id. 582; 2 T. K. 476. 481; 2 B. & B. 59; 2 Chit. Eep. 581; M'CIel- 
 
 (0 Supra, note (A); and see 1 Y. & J. 622; 4 Bing. 11. 
 
 180. (n) 4 Campb. 885; ante, 411, 553. 
 
 (m) Cowp. 56, 57; 1 Bla. Kep. 394; Bui. (o) Per Denman, C. J. in Davis v. Gyde.l 
 
 N. P. 181; M'Ckl. 198; 13 Price, 484; 5 Harr. K. 52, citing Gage v. Aoton, 1 Salk. 
 
 B. & Aid. 92; 3 Campb. 329. 326, serf qutere. 
 
 In replevin, ho-wever, though a set-off {p) 3 T. R. 186; 1 Bing. 98; 7 Moore, 
 
 cannot, in general, be pleaded to an avowry 412; Braithwaite d. Colman, 4 Nev, & Man. 
 
 for rent, yet the plaintiff may plead in bar 654; and see 8 Bar. & Cres. 11; 2 M. &R. 
 
 to an avowry or cognizance the payment of 181, S. C. 
 
 ground rent, (4 T. B. 511 ; 2 Bing. 54; 9 (j) Stra. 1271; Bui. N. P. 180; 1 C. & J. 
 
 B. & C. 245; 4 M. & B. 193, S. C.;) or of 1; 9 Geo. 4, c. 14, s. 4. 
 
 an- annuity charged upon the premises (6 (r) 6 M. & Sel. 103 ; sed ride 1 Taunt. 426 ; 
 
 Taunt. 524; 2 Marsh. 220,) or of land tax, 1 M. & Sel. 696; 3 East, 258. 
 
 &c. paid for the same, after the rent dis- (s) Dougl. 116, 192; 1 Esp, Rep. 449} 
 
 trained for had become due, or whilst it was Montag. 36. 
 
 accruing, though any previous payment of (<) Burr. 1229; Peake Rep. 210; 3 T. R. 
 
 land tax, &c. cannot be pleaded to an avowry 186; 4 East, 507. 
 
 for rent subsequently due; though it may («) 3 T. R. 188, notes; Dougl. 112} 
 
 be sued for, 1 B. & Aid. 128; 3 Moore, 278; Montag. 36, sed vide 2 Hen. Bla. 827. 
 1 B. & B. 87; 3 B. & Aid. 616; 4 Moore, 
 
 (1) Lewis V. Culbertson, Ad'm. 11 Serg. & Rawle, 48. 
 
 (2) But an action instituted by L. upon a single bill, payable to ■■ L., executor of B.," is an 
 action in hia own right, to which a. debt due from him may be pleaded, and proved as a set- 
 off; and he cannot go into evidence of the eonaideration of the bill, to show that it was for a 
 debt due B., in ordir to exclude the set-off as due in another right. Turner vv Plowden, 2 
 Gill, & Johns. 466. 
 
VII. OF PLEAS OP SET-OFF. *573 
 
 ^ The Bankrupt Act {x) provides, that -where there has been mutual credit vit. pibas 
 given by the bankrupt and any other person, or where there *are mutual "'' «™^o'*'- 
 debts between the bankrupt and any other person, the commissioner shall jn^e^^'g^f 
 state the account between them, and one debt or demand may be set against bankrupt- 
 another, notwithstanding' any prior act of bankruptcy cohimitted by such oy. 
 bankrupt before the credit given to, or the debt contracted by him, and 
 what. shall appear due on either side on the balance of such account, and 
 no more shall be claimed or paid on either side respectively, and every 
 debt or demand hereby made payable against the estate of the bankrupt, 
 may also be set off in manner aforesaid against such estate ; provided that 
 the person claiming the benefit of such set-off had not, when such credit 
 was given, notice of an act of bankruptcy by such bankrupt committed. 
 
 With respect to the mode by which the defendant should avail himself getting off. 
 of a strict legal set-off, we have seen .(?/) that when either the debt sued 
 for, or that which is the subject of the set-off, accrued by reason of a pen- 
 alty contained in any bond or specialty, the statute enacts that the debt 
 intended to be set-off shall be pleaded m bar, and a notice of set-off is not 
 then allowed. The plea in that case must show how much is truly due on 
 either side, and the sum admitted in the plea to be due to the plaintiff is 
 traversable, though laid under a videlicet {z) ; and therefore the plaintiff 
 may, in such case, either take issue on the amount of the debt alleged to 
 be due to himself, or may deny the defendant's set-off (a) : and if the plain- 
 tiff reply that more was due on the bond than the sum named in the plea, 
 and fail in proving that allegation, he will be non-suited (6). But in cases 
 where neither the plaintiff's nor the defendant's debt accrued by reason of 
 a penalty, the defendant has the election to plead, or give notice of his set- 
 off. It has been said, that if at the time of the action brought, a larger 
 sum is due from the plaintiff to the defendant, it is more proper to plead 
 the set-off, but that where the sum intended to be set-off is less than that 
 for which the action is brought, a notice of set-off should be given (c) ; but 
 the statutes of set-off do not seem to warrant this distinction. In general 
 a notice of set-off is less expensive than a plea ; but where the plaintiff in 
 his replication must necessa-rily admit a part of the defendant's case (rf), a 
 plea is preferable ; and a set-off is usually pleaded in country causes, to 
 save the trouble and expense of proving the service of notice (e). 
 
 *Where a set-off is not pursuant to the enactment pleaded, the stat- [ *574 ] 
 
 (as) 6 Geo. 4, o. 16, s. 50. There are two (a) Holt, C. N. P. 293. See the forms' 
 
 modes of balancing an account in the case post, vol, iii. * 
 
 of bankruptcy; 1st, Upon an action at law; (4) Holt, 0. N. P. 293. 
 
 or, 2dly, By the Commissioners, who, by the (c) Bui. N. P. 179; Tidd, 9th ed. 697; 
 
 above act, have jurisdiction to state the ae- Montague, 41, ace. Lawes on Assumpsit, 638, 
 
 count without the assignees. It seems the contra ; 6 Bing. 734. 
 
 chancellor will restrain any attempt to re^ (d) Thus, if it be' apprehended that the 
 open the account by bringing an action after statute of limitations constitutes an answer 
 the commissioners have adjusted it, see 1 to the set-off, it may be judicious to plead 
 Eos. 395. See in general as to set-off and as instead of giving notice of set-off; because 
 to mutual credit, (which is more comprehen- the plaintiff must specially reply the statute 
 sive than the word debt, in the statutes of if he intends to rely thereon. See 1 C. & J. 
 set-off,) in cases of bankruptcy, Eden, 2dedit. 1. And if the set-off were on a deed ereout- 
 186 to 206; Chit. Col. of Stat. 879, note (c); ted by plaintiff, the general replication nil 
 9 B. & C. 738; 4 M. &K.. 693, S. C. Mutual debet, might be insufiloieiit, and therefore iu 
 credit must, since Heg. Gen. Hil. T. 4 W. 4, his replication the plaintiff Would be com- 
 be pleaded specially. pelled to admit the deed, or the existence of 
 
 (y) Ante, 570. the debt accruing thereon. 
 
 (2) 3 T. K. 65; 6 Id. 460. (e) Tidd. 9th ed, 667; 6 Esp. Eep. 52, 
 
574 
 
 OF PLEAS IN BAR, 
 
 ot'se^oti^"*^ (/) provides that the defendant'sdemandmay be given in evidence un- 
 Mode of ^^^ ^^° general issue so as at the time of pleading such plea, notice shall 
 setting off. ^® given of the particular debt intended to be insisted upon by the defend- 
 ant, and upon what account it became due. But as there is no general is- 
 sue in an action on a specialty, and a plea of non est factum to an action 
 of covenant on an indenture for non-payment of money only puts in issue 
 the deed, such plea is not a general issue within the meaning of this act, 
 and therefore in an action of covenant or debt on a deed, though no pen- 
 alty be proceeded for, a set-off should be specially pleaded (g-). And it 
 seems that the statute confines the right to give notice of set-off to a case 
 where the general issue is pleaded alone. At all events, such notice can- 
 not be given where several pleas are pleaded (A). 
 S^ble set The Reg. Gen. Hil. T. 4 W. 4,t Pleadings in Assumpsit, reg. 3, orders 
 mutual ^^^^ ^^ set-off and mutual credit must be pleaded ;" and it has been sup- 
 credit now posed that this rule abolishes a notice of set-off {i}. 
 to be 
 
 p eaae . j^^ cases of bankruptcy the accounts may be balanced either upon an ac- 
 
 tion at law, or before the commissioners (A). And in an action at suit 
 of assignees, a set-off or mutual credit might formerly be given in evidence 
 under the general issue, without a plea or notice of set-off {I). But now 
 since Reg. Gen. Hil. T. 4 W. 4,t each should be pleaded. And to an 
 action by assignee for a debt due to the bankrupt, the defendant might 
 have pleaded a tender as to part, and give evidence of a set-off as to the 
 rest without a plea of set-off (m). But it has been observed, that the prac- 
 tice was to plead and give notice of set-off in an action at law in the case 
 of bankruptcy, in the same manner as under the general statutes relating 
 to set-off, and that practice seems to be just, because it apprizes the plain- 
 tiff, of the intended defence (w). 
 
 The forms j^ pgint of form the plea of set-off should not only contain all the requi- 
 
 nott^rf sites essential to the validity of other pleas in bar, but must of *course 
 
 tet-off. show that the debt is of a nature which entitles the defendant to set it off 
 
 [ *516 ] against the plaintiff's claim (o) ; and must describe the debt intended to be 
 
 set off with the same certainty as in a declaration for the like demand (jo). 
 
 With respect to notices of set-off, it has been observed, " that they should 
 
 be almost as certain as declarations ;" (y) and therefore when the notice of 
 
 ( f) 2 Geo. 2. 0. 22, s. 18. gue, 61. To assumpsit by assignee for money 
 
 li) 1 Starkie, 811; 6 M. & Sel. 164; 2 had and received to tiieir use as assignees, de- 
 Chit Rep 388, S. C. ; Selw. N, P. 6tli edit, fendant cannot plead a set-off for money due 
 685"ficc • but see Bui. N. P. 181; Barnes, him {rom the bankrupt ; Groom ■„. Mealey, 2 
 j9l' Bing. N. C. 138. 
 
 (ft) p. & M. 418; 2 C. & P. 810, S. C; (m) 4 Car. & P. 382. 
 
 6 Esp Rep 50; Duncan v. Grant, 1 Cr. M. & (n) Montag. 61, in noiis; and see forms, 
 
 Ros 388 S P.;4Tyr. 818, 8I8;2Dowl. 683, post, vol. iii. But where any inconvenience 
 
 S G ' ' might result from the delivery of the partieu- 
 
 ' (i) Bosanquet's Rules, 52, note 50; Dun- lars of the set-off, it should seem to be most 
 
 can V. Grant, 1 Crom. M. & Ros. 283; 2 advisable to plead only the general issue, in 
 
 Dowl. 683; 4 Tyr. 816, S. C. Sed quart, actions by assignees, 
 
 the notice of set-off was given by statute, and (o) Ante, 671. 
 
 Reg. Gen, Hil. T. 4 W. 4, contains no express (p) See the forms of pleas and notices or 
 
 regulation to take it away. set-off, posi, vol. iii. 
 
 (ft) 4nU, 57 v; Id. note (x). (9) Bui. N. P. 179; Selw. N. P. 4th ed. 
 
 (I) 1 T. R. 116, 116; 6 U. 58, 59; Monta- 146, n. 106. 
 
 t See American Editor's Preface. 
 
VII. OP PLEAS OF SET-OFF. 575 
 
 set-off was in these words, " Take notice, you are indebted to me for the th. pleas 
 use and occupation of a house for a long time held and enjoyed, and now °^^J'o^^^' 
 lately elapsed," and the defendant attempted to give in evidence a demand setting off. 
 for rent due on a lease under seal, it was held that as the lease was not 
 mentioned in the notice, such evidence was inadmissible (r). But where 
 the demand would have been recoverable under the common money counts 
 in a declaration, the amount may be set off under a similar description of 
 the debt, however particular the circumstances may have been (s). A plea 
 of set-off so much resembles a declaration, that two parts of a plea of set- 
 off, stating distinct debts, are considered as two counts in a declaration, 
 and if one part be goodj' a demurrer for the mispleading in the other part 
 must bi3 confined to the defective statement, and a general demurrer to the 
 whole is not sustainable (<) ; though we have seen, that in general if one 
 part of a plea in bar be bad, the whole is insufficient (u). So, in a plea 
 of set-off, an imperfect statement of one debt intended to be set off, will 
 not prejudice a sufficient allegation of another ground of set-off. To the 
 plea of set-off the plaintiff may reply ; or to answer to the notice of set- 
 off may, at the trial, give in evidence the statute of limitations (z) : but 
 if both the demands of the plaintiff and defendant accrued more than six 
 years before the time of pleading and the plaintiff issued process to pre- 
 vent the statute of limitations affecting his demand, it will equally prevent 
 the statute from barring the- defendant's set-off, although the latter issued 
 no process (y). The statute of limitations cannot be relied upon under 
 the usual replication of nil debet to the plea of set-off (s). 
 
 When the defendant has a cross demand against the plaintiff, of which 
 he gives notice, but does notoffer any evidence on the trial in support of 
 it, the. plaintiff may either take a verdict for the whole sum he proves to 
 be due to him, subject to be reduced to the sum really due on a balance of 
 accounts, if the defendant will afterwards enter into a rule not^to sue for 
 the debt intended to be set off, or he may take a verdict for the smaller 
 sum, with special indorsement on the *postea, as a foundation for the Court [ *576 ] 
 to order a stay of proceedings, if another action should be brought for the 
 amount of the set-off (a).. 
 
 Besides these modes of deduction, in cases of connected accounts at Of setting 
 common law, and of set-off and mutual credit in cases of bankruptcy, of "^ J"<Jg- 
 which we have seen the defendant may avail himself as a matter of right ^gjs *° 
 in defence of the action, opposite demands, as well for debts as for costs, against 
 founded on cross judgments, may, by the practice of the Court, in many ^^'"^ other 
 cases, be set off against each other on a summary application to the Court ; mary'ap- 
 but this is rather a matter of practice than of pleading, and therefore it plication. • 
 will suffice to refer to the practical works on the subject (6). 
 
 (r) Bui. JSr. p. 179. See the proper form (y) 2 Esp. Kep. 569; 6 T. R. 189; 2 
 
 post, vol. iii. Saund. 427 c. d; Montag. 20, 21. 
 
 (s) 2 Esp. Rep. 560, 569. (z) 1 C. & J. 1. 
 
 (i) 2 Bla. Rep. 910. (a) 1 C?,mpb. 252, 1 Chit. R. 178. 
 
 (tt) Ante, 546, 567. (A) Tidd, 9th ed. 991; Montague's Law of 
 
 (k) 2Stra. 1271;Bu1.N. p. 180. SeeanU, Set-off, 5 to 15; 6 Taunt. 176; 1 Chitty'a 
 
 573, note (d). Gen. Prae. 667. 
 
[ *577 J 
 
 CHAPTEK VIII. 
 
 OP REPLICATIONS. 
 
 orafERAL Before the plaintiff replies or demurs to the plea, he should consider 
 monI;^' whether or not he may treat It as a nullity, and sign judgment with or with- 
 Steps'to be o^t leave of the Court, as on account of the plea being such a description 
 taken be- of sham plea, that the Court will not permit to be pleaded (a), or as being 
 _ore reply- totally inappropriate to the form of action (b) . If several pleas be plead- 
 ed, it will be material to consider whether some of them are not so whol- 
 ly inconsistent with the rest, that the Court will on application restrain the 
 defendant from pleading all of them (c). Sometimes it becomes necessary 
 to apply to the Court to set aside the plea, or one or more of several 
 pleas, as having been pleaded contrary to good faith, &c. ; as where the 
 defendant pleads a release, fraudulently given by a nominal plaintiff to the 
 prejudice of the real claimant (c?) . And it was frequently important, where 
 a special plea was pleaded in the King's Bench, to rule the defendant to 
 abide by his plea, in order to prevent him, when not under terms of plead- 
 ing issuably, from striking out his special plea and subsequent pleadings 
 when the paper-book was delivered to him and returning it with the same 
 general issue, a mode of obtaining time formerly very unfairly practised (e). 
 But such a rule was rendered unnecessary by Reg. Gen. Hil. T. 2 W. 
 4,t reg. 46, which orders that a defendant shall not be allowed to waive 
 his plea without leave of a judge for that purpose, and which will not be 
 granted unless justice require (/). It is sometimes necessary to'apply to 
 the Court of Chancery to prevent the defendant from relying on- a plea, as 
 where the statute of limitations is pleaded, and the plaintiff did not sue 
 before in consequence of a bill in equity having been filed and injunction 
 obtained by the defendant (g-). 
 
 9^P'*\°- If the plaintiff perceive that he cannot support his action to any extent, 
 contin- ' ^^ should either obtain leave to discontinue (i), or he may enter *a nolle 
 uing, and prosequi as to the whole or a part of the cause of action (A;) (1), unless 
 JVolle pro- 
 
 t''*A;7a 1 '") ^nte, 541. defendant could not waive hia plea after the 
 
 [_ O(oj (J) As to nil debet in assumpsit, &o. see plaintiff has replied, id. 674. 
 
 ante, 521. (/) Jervis's Rules, 54, note {v). 
 
 (c) ^nte, 521; 2 M. & P. 19; 5 Bing. 12, (g} 1 Verm. 73; 2 Y. & J. 75. But of late 
 S. C. ; 2 M. & P. 105; 5 Bing. 42 , S. C. ; 6 /li. application to a Court of equity has been 
 197. considered of very limited utility. 
 
 (d) 1 B. & P. 447; 7 Moore, 617; 1 Y. & (h) See 3 Chitty's Gen. Prao. 739. 
 J. 362; 1 Campb. 392; 1 Chit. Rep. 390, and (i) Tidd, 9th ed. 678. 
 
 notes; see further, Tidd, 9th edit. 677; fraud- (fc) Tidd, 9th ed. 681; see the forms, post, 
 
 ulent release by one of several plaintiffs, 1 vol. iii. A nolle prosequi to one count does 
 
 Y. & J. 862; 1 Chit. Rep. 390. not bar evidence upon another count fbr the 
 
 (e) See Tidd, 9th edit. 673; in C. P. the same demand, ante, 412. 
 
 (1) Bell V. Hutchinson, 2 M'Cord, 409; Lambert v. Sanford, 2 Blackf. 137. 
 
 Where one co-defendant pleads infancy , the plaintiff may enter a nolle prosequi as to him, 
 and proceed to judgment against the other defendants. Hartness v. Thompson, 5 John, 160; 
 Woodward v. Newhall, 1 Pick. 500; Cutts v. Gordon, 13 Maine, 474; Judson v. Gibbons, 6 
 Wendell, 228, 229; Walmsley v. Lindenberger, 2 Rand. 478. Vide Hughes «. Moore, 7 Cranoh, 
 665. To entitle one to have the benefit of the proviso of the statute of limitations in favor of 
 infants, &c. the infancy and bringing of the suit within the time limited after disability re- 
 moved, should be pleaded specially. Hyde v. Stone, 7 Wend. 364; Paliater v. Little, 6 GreenL 
 351. 352. 
 
 t See American Editor's Pre&ce. 
 
TIONS. 
 
 Ot' THE SEVERAL RBPLICATtONS. 678 
 
 there tas been a demurrer for misjoinder (J.'). Where there are several qeneral 
 defendants in an action for a tort, or if in an action ex contractu, the plea °^'^^-^' 
 of one of the defendants is merely in his particular discharge, as bankrupt- 
 cy, &c. the plaintiff may enter a nolle prosequi as to him (m). So the 
 plaintiff might enter set processus or cassetur billa bel breve (w). The 
 points relating to discontinuing the action (o) and entering, a nolle prose- 
 qui, &c. (p) are fully treated of in the Books of Practice. 
 
 As the replication is in general influenced by the plea, and most fre- Wl""* a°- 
 quently denies it, the pleader has not often much diflSculty in deciding t^g*"g*° 
 what replication he should adopt. If the plea does not profess to answer theplain- 
 the whole action, and leaves a part unanswered, the plaintiff should sign t'ff may 
 judgment pro tanto (9). And if a plea do not cover the whole of alleg- ^^^^^' 
 ed trespasses, the plaintiff is entitled on proof of part to a verdict pro tan- 
 to, and need not new assign. 
 
 When the plea properly concludes to the country, which we have seen 
 can only be when the allegation sin the declaration have merely been travers- 
 ed or denied, then the plaintiff cannot in general reply otherwise than 
 by adding what is termed the similiter (r), but when the plea has introduced 
 new matter and has therefore concluded with a verification, and the plain- 
 tiff does not demur, the replication must then either, first, insist that the de- 
 fendant could not so plead by showing matter oi estoppel ; or secondly, 
 may traverse or deny' the truth of the matter alleged in the plea either in 
 whole or in part (1) ; in the first case by a general replication de injuria, 
 in the second by a rfemWq/" a par^, according to the facts of the partic- 
 ular case ; or thirdly, the replication may confess and avoid the plea : in 
 which case, as will be fully explained when we consider the qualities of rep- 
 lications in general, the truth of the matter alleged in the plea must be ad- 
 mitted ; or fourthly, in the case of an evasive plea may new assign the cause 
 of action (2). And though at common law a replication cannot be double, 
 or contain two or more answers to the same plea, and the statute 4 Ann 
 c. 16, does not extend to replications, (except in the instance of a plea in bar 
 to an avowry in replevin, which is in the nature of a replication), yet the 
 plaintiff in many cases has *an election of different replications ; thus if in- [ *579 ] 
 fancy be pleaded in assumpsit, the plaintiff may reply, either that the defend- 
 ant was of age, or that the goods, &c. were necessaries, or that the defend- 
 ant after he came of age ratified and confirmed the promise ; or he may 
 reply as to part of his demand, that it was for necessaries, and tp other 
 part, that the defendant was of full age at the time of the contract, and 
 to the residue, that he confirmed it after he came of age. So, if an ex- 
 
 (l) 1 Hen. Bla. 108; 1 Sannd. 285, n. 5; 1 207, note 2; 2 M. & Sel. 23, 144. 
 Marsh. 144. (q) Bush v. Parker, 1 Bing. N. C. 72. 
 
 (m) jinte, 567, Tidd,9thed. 682. (r) Com. Dig. Pleader; R. 1. See obser- 
 
 (n) Tidd, 9th ed. 682, 683; ante, 463. -rations on the similiter. Boot's Suit at Law; 
 
 (0) Ante, 197, 198, 212; Tidd, 9th ed. 103, note.* If a defendant at the end of his 
 678; 2 Saund. 73, n. 1; SChitty's Gen.Prao. plea concluding to the country, add the &o. 
 739. that may supply the want of a formal simil- 
 
 (p) Tidd, 9th edit. 681 to 688; 1 Saund. iter, 6 Car. & P. 712. 
 
 (1) The facts of the plea should be traversed by the replication, unless matter in avoidance 
 is set up, and the issue must be taken on the material allegations. V. States v. Buford, 8 
 Peters, 31. 
 
 The replications must not depart from the declaration in any material matter^ Lindsay v. 
 Jamison, 4 M'Cord, 98; Collins v. Waggoner, Breese, 96. 
 
 (2) Gtaylord v^ Van Loan, 15 Wend. 812. 
 (8) De Kay v> Darrab, 2 Green, 248. 
 
679 
 
 OP REPLICATIONS IN GENERAL. 
 
 GGNEBAL 
 
 OBSEEVA- 
 
 II0N9, 
 
 As to rep- 
 lication 
 merely in 
 Denial of 
 the plea, 
 as the rep- 
 lication de 
 injuria 
 and when 
 it is ad- 
 missible. 
 
 ecutor or administrator plead several judgments outstanding and no assets 
 ultra, the plaintiff may reply as to one of the judgments, nul tiel record, 
 and to another, that it was obtained or kept on foot by fraud (s). So, if a 
 set-off on a recognizance or judgment, and also on simple contract, be 
 pleaded, the plaintiff may reply as to the first, nul tiel record, and as to 
 the residue of the plea, nil debet {f). And if a tender be pleaded, the 
 plaintiff may 'either deny the tender or its sufficiency, or may reply a de- 
 mand before or after the tender, or that a writ was previously issued (m). 
 And in the case of a set-off, the plaintiff may either deny the existence of 
 the debt, or may reply the statute of limitation.s. And if the statute of 
 limitations be pleaded, the plaintiff may reply either that the defendant did 
 undertake, or that the cause of action did accrue, within six years, in the 
 negative of the words of the plea, or that the accounts were between mer- 
 chants, or that the writ was issued within six years. In short, in almost 
 every form of action, the plaintiff has frequently the choice of one of seve- 
 ral replications, viz. either 1st, to deny the allegations in the plea, or one 
 of them; 2dly, to insist that the defendant was estopped or precluded from 
 setting up the defence relied upon in the plea; or, Sdly, admitting the al- 
 legation in the plea, the plaintiff may reply setting up new matter, as where 
 the defendant in trespass quare clausum f regit pleads liberum tenementum, 
 or that the close was his freehold, the replication may state a lease from 
 the defendant to the plaintiff, which entitles him to the present action, and 
 to sue the defendant for the trespass pending such lease. 
 
 When the defendant has pleaded a special plea and the plaintiff denies 
 the whole of the several grounds of defence stated in such plea, then it is 
 obvious that the most general and comprehensive replication, putting the 
 defendant on the proof of all the material allegations in his plea, is the 
 most advantageous to the plaintiff, because it imposes most difficulty on the 
 defendant. In trespass to persons and personal property, where a special 
 plea of justification or excuse had been pleaded, the plaintiff was allowed 
 to put in issue the whole plea, by replying generally that the defendant com- 
 mitted the said alleged trespasses of his own wrong, and without the cause 
 (t. e. excuse) alleged in the plea. That comprehensive mode of replying 
 was not anciently adopted in any other form of action ; but at length it 
 seems to have been considered that such a replication is admissible in cov- 
 enant or special assumpsit, in answer to a special plea in excuse of per- 
 formance ; for instance, a replication that the defendant committed the said 
 breach or breaches of covenant, or committed or suffered the said breach 
 of the said promises of hi^ own wrong, and without the cause alleged in 
 the said plea, and concluding to the country (a;), although according to 
 prior decisions so general a replication was illegal and insufficient (z/). The 
 pleader should well consider when a common replication traversing the 
 plea will suffice, or when it must state new facts, either by special replica- 
 tion or new assignment ; for if the latter when requisite be omitted, the 
 plaintiff may fait in toto (2). Where the plaintiff, instead of demurring or 
 
 (s) 1 Saund. 887 b. note 2} 1 Salk. 298; 
 1 Lord Raym. 263, S. C. 
 
 (0 1 East, 369. But the plaintiff should 
 not reply nul tiel record if the recognizance 
 be not of record, but merely deny the set-off, 
 1 B. & Aid. 153. 
 
 (u) 1 Saund. 38. 
 
 (x) Griffin v. Tates, and Isaao v. Flather, 
 Westminster Hall Chronicle, 882, 883. 
 
 (y) Noel ~v. Rich. Exchequer, Trin. T. 
 1835, Legal Observer, 186, 136; Solly v. 
 Neish, id. 359; 2 Ring. N. C. 359; Crisp o. 
 Griffiths, 8 Dowl. 752, 754, 755; 1 Gale, 106;. 
 Moore 1). Boulcott, 3 Dowl. 145; 1 Bine. N. 
 C. 323. 
 
 («) Price V. Peck, 1 Bing. N. C. 381, 3, 7. 
 But as to when a new assignment is not ne- 
 cessary, See Nevill v. Cooper, 2 Crom. & M. 
 
OF REPLICATIONS IN GENERAL. 680 
 
 taking advantage of matter of estoppel, takes issue on the plea or pleas, oBmsAt 
 he will lose the advantage of.such estoppel (a). '^l^l^' 
 
 Subdi- 
 
 We will consider the points relating to replications under the following visions of 
 divisions :■ — subjeota 
 
 ITfildiLlVfi lO 
 
 I. The several replications which usually occur in practice. replioa- 
 
 1st. In assumpsit. tioM. 
 
 2dly. In debt. 
 3dly. In covenant. 
 4thjy. In detinue. 
 ■^ Sthly. In actions against executors and heirs. 
 6thly. In case. 
 7thly. In trover. 
 Sthly. Pleas in bar in replevin. 
 9thly. In trespass. 
 II. Their forms and parts. 
 ^ III. Their qualities and requisites in general. 
 
 OP THE SEVERAL REPLICATIONS. [ *581 J 
 
 In assumpsit, as well as in other actions the replication may, if the plea 
 properly conclude to the country, add the similiter, or if the plea conclude 
 with a verification may deny the alleged matter of defence, or may confess 
 and avoid it by applying new matter. 
 
 In assumpsit, if the defendant has pleaded Infancy in bar, the plaintiff 
 may, if the plea were untrue, reply, denying the fact (6), or if true, he 
 may x'eply, that the goods mentioned in some of the counts of the declaration 
 to have been sold to the defendant were necessaries, which fact will not 
 be intended unless alleged, and that the money mentioned in the count for 
 money paid was. paid in the purchase of necessaries for the defendant, and 
 may enter a nolle prosequi as to the counts for money lent, had and receiv- 
 ed, and upon an account stated (c); or he may reply to the whole or 
 part, that the defendant ratified and confirmed the promise after he came 
 of age {d) ; and a ratification by the defendant of his acceptance of a bill 
 of exchange after he came of age, and before the bill fell due, will support 
 a count on a promise to pay according to the tenor and effect of the bill 
 (e). But to a plea in bar of Coverture at the time the promises were 
 made, the plaintiff can only deny the fact, or reply some matter which' 
 shows that at the time the defendant was competent to contract, as that her 
 husband was then civilitur mortuus (1) ; and the plaintiff cannot reply that 
 she had a separate maintenance secured to her by deed (/), or that the 
 husband was an alien living out of the kingdom (g-),and therefore there is 
 
 829; Reeoe ». Templar, 1 Harr. & Wol. 15, (d) Post, yol. iii.; 1 T. R. 648. Seethe 
 
 16. proper form, id.; 1 M. &. Sel. 724, 725; 3 Id. 
 
 (a) 4 Nev. & Man. 276, note (e). 481. 
 
 (i) Post, vol. iii.; 01. Assist. 76. (e) Hunt v. Massey, 5 Bar. & Adol. 902. 
 
 (c) 1 Salk. 223; post, vol. iii.; Cro. Jao. (/) 8 T. K. 545. 
 
 660; 1 T. R. 40; Com. Dig. Plead. 2 W. 22. {g) Stretton v. Busnaoh, 1 Bing. N. C. 139. 
 
 (1) Gregory v. Paul, IS Mass. 81. ) 
 
 Vol. I. 76 
 
 IN 
 
 1.SSUMPSU. 
 
^^^ OP THE SEVERAL BBPLICATIONS. 
 
 AWT^iT. ^?'?°r?iv^°^ answer to this plea. When Alien Enemy has been pleaded, the 
 plaintifl may either deny the fact, or if true may reply a license, &o. to re- 
 side in this country (A). When a discharge under the Insolvent Act (i), 
 or Lord's Act (&) is pleaded, the replication may either deny the fact, or 
 allege that the discharge was obtained by fraud, &c. (^l). If Gaming, 
 Usury, or any other Illegality in consideration or contract be pleaded, the 
 plaintiff may reply, that the contract was made upon a good and legal con- 
 sideration, and not upon the supposed unlawful consideration mentioned in 
 ,the plea (m). To a plea of tender, the replication might formerly have 
 
 [*582 ] eitherdenied the tender generally (w), or stated that a writ was 'previ- 
 ously issued (o) ; or a writ with continuance {p) ; but if the plea stated 
 that the tender was made before the commencement of the suit, instead of 
 exhibiting the bill, then there appeared no necessity to reply the writ, and 
 it would be sufficient to produce it in evidence {q) ; or the plaintiff might 
 reply a prior (f) or subsequent (s) demand ; or admitting the tender, 
 might proceed to trial on the plea of nan assumpsit, when he was prepared 
 to prove that more was due than the sum tendered {f). But as since the 
 uniformity of process act 2 W. 4, c. 39, treats the writ at the commence- 
 ment of the action, it is not necessary in any case to reply specially the 
 time of issuing the writ. The replication to a plea of Accord and Satis- 
 faction may, either deny the delivery of the chattel in satisfaction, or pro- 
 testing against that fact, may deny the acceptance (M),ortlie plaintiff may 
 deny both the delivery and acceptance in satisfaction (x). If an Award 
 were pleaded, the plaintiff might either deny the submission or the award, 
 or may set out the whole award, and if bad in point of law, may demur 
 (jf). If a Former Recovery for the same debt, or a plea of set-off on a 
 recognizance of record be pleaded, the replication was to be nul tiel record 
 (z) ; and to a plea of jud'gment recovered, the plaintiff might New Assign 
 that his action was for the breach of different promises (a) (1) ; and if 
 the defendant pleaded a judgment recovered in an inferior Court, not 
 stating that the contract arose within the jurisdiction of that Court, the 
 plaintiff may reply that the cause of action arose out of its jurisdiction 
 (6). To a plea of Release, he might reply non est factum (c), or that 
 it was obtained by duress or fraud {d) (2), and it was then considered to 
 
 (A) 43 Geo. 8, c. 155. post, vol. iii. notes. 
 
 (i) In general, ante, 55. (r) Post, -vol. iii. 
 
 (k) Ante. 57. («) /'/•; 1 Campb. 182. 
 
 (/) 7 Geo. 4, 0. 57; s. 61. (/) Post, vol. iii. 
 
 (m) Com. Dig. Pleader, 2 W. 23} 2 T. E. («) Id.; see 3 Wentw. Index, vi, vii. x. 
 
 489; 1 Saund. 103 b, note 8; post, vol. iii.; 8 (x) 1 Bing. N. C. 502; 1 Hodges, 39, S. 
 
 Wentw. 104, 108, and id. Index v. C. 
 
 (n) Post, vol. iii. (j) Post, vol. iii.-; 8 Wentw. Index, viii. 
 
 (0) Post, vol. iii. (a) •?<>«'. fol. iii. 
 ( p) Post, vol. iii. When it need not be (o) Post, vol. iii. 
 
 stated, 1 Wils. 167; 5 B. & Aid. 452, 1 D. & (6) 2 Bing. 218. 
 E. 27, S. C. (c) Post, vol. iii. 
 
 (g) 6 B. & Aid. 452; 1 D. & E. 27, S. C. ; (d) Id. ; 8 Wentw. Index, xii. 
 
 (1) Vide Snider ». Croy, 9 Johns. 827, where it was held that the plaintiff might avoid the 
 effect of the former judgment, by replying that he was prevented by the Court from proceed- 
 ing for one of the causes of action mentioned in his declaration, and which was the subject 
 of the present suit. 
 
 (2) It has been held in the Supreme Court of the State of New York, that to a plea of a 
 release of payment, the plaintiff may reply that previous to the execution of the release or 
 to the payment, he had assigned the bond to A. B. of which the plaintiff had notice. An- 
 drews V. Bucker, 1 Johns. Cas. 411; Littlefield v. Storey, 8 Johns. 426; Eaymond v. 
 
OP THE aEVERAL REPLICATIONS. 582' 
 
 be unnecessary and injudicious to state the particulars of the fraud (e) w 
 (1) ; or to a plea of release by a third person, the plaintiff might reply ■"»"■•'»"■ 
 we relessapas (/). To a plea of Set-off on simple contract, the plaintiff 
 might reply nil debet (g-), or the statute of limitations (A) (2), or any 
 matter which a defendant in an action might plead ; but if the set-off be 
 on a specialty or judgment, or other matter of record, such replication 
 would be insufficient, and the plaintiff should reply non est factum, nul 
 tiel record, or payment, &c. (i) and the statute of limitations could not be 
 relied upon under the general *replication of nil debet, to a plea of set^, [ *583 1 
 off (A) ; but where the defendant pleaded a set-off on a recognizance not 
 of record, and on a simple contract, it was held the plaintiff should mere- 
 ly deny the set-off, and not reply nul tiel record (I). 
 
 As the statute 4 & 5 Ann. (ni) does not extend to replications, and the Not two 
 statutes which give the plea of set-off do not specify how the plaintiff is J^n^g^^ 
 to reply, it should seem that the plaintiff cannot reply several distinct an^ some 
 swers to a plea of set-off (3). When the Court of Conscience Act has ground of 
 been pleaded, the plaintiff may deny the residence of the defendant with *"'"*• 
 the jurisdiction, or may allege that more than 405. &c. was due («). 
 
 When the statute of limitations has been pleaded, either that the defend- Replication 
 ant did not undertake, or that the cause of action did not accrue, within six *f ij^ul!. 
 years " before the exhibiting of the plaintiff's bill," and the plaintiff could tioM. 
 prove a promise or acknowledgment within that time, the replication might 
 deny the plea generally, and conclude to the country (o) (4) ; but if the 
 
 (c) 9 Co. 110. (0 1 B. & Aid. 153. 
 
 (/) 2 Balstr. 55; 2 Taunt. 287; but see (m) 4 Anne, o. 16. 
 
 1 Tyr. & G-ran. 87v Quare non est factum (n) Post, vol. iii.; 3 Wentw. Index, iTiii. 
 
 should be replied if the plea state that the (a) Post, toI. iii. When an acknowledg- 
 
 plaintiff released, see Steph. 2d ed. 239, ment is of no avail, see 2 Campb. 160. 
 
 237. This is stated by Saunders, to be an anoma- 
 
 (g) Id. lous case, the plaintiff being bound to do 
 
 (A) Post, vol. iii. more than fully answer the plea, but see a 
 
 (i) 1 Enst, 369; 3 Wentw. Index, xiv. similar case in 1 Mod. 227. See also, poit, 
 
 {k) Cromp. & Jerr. 1. vol. iii. 
 
 Squire, 11 Johns. 47; Dawson «. Coles, 16 Johns. 51; Presoott ii. Hull, 17 Johns, 284, It 
 is laid down however, as a general rule, that matter of defence in equity cannot be 
 pleaded. And the English Cotarts have never gone further than to set aside the plea on 
 an application to their equitable jurisdiction. Legh t;. Legh, 1 Bos. & Pul. 44 7; Alner », 
 George, 1 Camp. 398. And they will not permit a bond debt assigned to the defendant by 
 another person, to whom and for whose use it was originally given, to be pleaded by way of set- 
 off. Wake V. Tinkler, 16 East, 36. But it has been frequently held in this country, 
 that a debt may be the subject of a set-off, for which the party could not have maintained 
 an action in his own name. Tuttle v. Bebee, 8 Johns. 152; Winchester v. Hackley, 2 
 Granch, 342; Compty v. Aiken, 2 Day, 483; CaineS v. Brisban, 1^ Johns, 9. The case 
 of Winch V. Keely, 1 Term Bep. 619, fully supports our practice of permitting an assigur 
 ment to be replied that : was an action of assumpsit ; the defendant pleaded the bank^ 
 ruptoy of the plaintiff; the plaintiff replied that before his bankruptcy he assigned the debt 
 to J. S. and averred that the writ sued out in the name of the plaintiff, for and on the behalf 
 of J. S.; this replication was held good on demurrer. The Supreme Court of the United 
 States, in a late case, fully confirmed the doctrine, that the equitable rights of a third person, 
 not party to the record, might be replied to as a legal bar. Welch v. Mandeville, 1 Wheaton, 
 233 
 
 (i) But in Slack v. McLagan, 15 IlUnoig. 242, it was held that the facts contribntinf; ai| 
 alleged fraud should be set forth in the pleadings. 
 
 (2) Levering v. Rittenhouse, 4 Whart, 140. 
 
 (3) See Levering v. Bittenhouse, 4 Whart. 130, 
 (4) Bargan^in v. Poitiax, 4 I)eigbi. 419, . , 
 
°* OF THE SEVERAL REPLICATIONS. 
 
 Ass^'Lii. J""® ,°^ '^™\°.g ^he first writ in the action were material, it must 
 nave been replied specially, as in the case of a tender ; and if continued 
 P™°^ss be, stated, the return of the first must have been shown (p) ; but 
 this did not seem necessary when the plea stated " before the commence- 
 ment of the suit," instead of " exhibiting the bill," (9) though a special 
 replication was^in gbneral advisable, because it may reduce the proof to be 
 adduced by the plaintiff on the trial (1). The replication might also be 
 that the plaintiff or the defendant was abroad when the cause of action ac- 
 crued, and that the action was commenced within six years after his first re- 
 turn (r) (2) ; and any other circumstances which brought the case within 
 either of the exceptions mentioned in the statute should have been replied 
 (s) (3). _ As the uniformity of process act 2 W. 1, c. 39, now declares 
 that the issuing of the writ of summons, capias or detainer shall be con- 
 sidered in all cases to be the commencement of the action, the plea of the 
 statute of limitations will always be that the defendant did not promise or 
 that the causes of action did not accrue within six years next before the 
 commencement of this suit ; and no special replication showing the time 
 of commencing the action can be required. 
 
 [ *684 ] _ When the alleged matter of defence is to be denied, it has been *usual 
 in the replication to traverse the%os< material part, hut there are cases 
 where all the grounds of defence may conjunctively be traversed without 
 rendering the replication bad for multifariousness ; thus to a plea of de- 
 livery of a pipe of wine in satisfaction, the replication may traverse as 
 well the delivery as the acceptance (<), and although it has been doubted 
 whether a replication de injuria in assumpsit is not too comprehensive (m), 
 
 ( p) Post, vol. iii. fraud, 2 B. & C. 149. 
 
 (y) 5 B. & AW. 452; 1 D. & B. 27, S. C. (I) 1 Bing. N. C. 502; 1 Hodges, 39, S. C. 
 
 See posf, vol. iii. note. («) 2 Bing. N. C. 359; 3 Dowl. 754, 755; 
 (r) Post, vol. iii.; 4 Bar. & Cres. 625. 1 Gale, 106, 227, where see form of replica- 
 nt) See the instances, post, vol. iii.; 3 tion (2e in; uria, iu assumpsit. 
 
 Wentw. Index, xx. &o. See as to replying 
 
 (1) See Satterlee v. Sterling, 8 Cow. 232; Livingston v. Ostrander, 9 Wend. 306. 
 
 (2) See Harper v. Hampton, 1 Har. & Johns. 453; Craig v. Brown, Peters C. C. 443. 
 Pliimmer «. Woodburne, 7 Dowl. & Ryl. 25. In an action on a breach of contract in mak- 
 ing a turnpike road, the defendant pleaded the statute of limitations, the plaintiffs replied 
 fraud and deceit in the execution of the work, and that the action was commenced within 
 six years after the discovery of the fraud ; the court held that fraud might te replied to a 
 plea of the statute, which -did not become a bar until six years after the fraud was discover- 
 ed, and accordingly that the replication was good. First Massachusetts Turnpike Corpora- 
 tiw II. Field, 3 Mass. 201; Troup v. Smith, 20 Johns. 33; Allen u.Mille, 15 Wend. 202, conlra. 
 
 Iq suits not affected by the Revised Statutes in respect to the limitations of actions and 
 the bringing of new suits by the executors, &c. he may bring a new suit at any time before 
 the expiration of the limitation by statute 4 but a replication showing the commencement of 
 a new action after two years, subsequent to the abatement of the first, is bad. Huntington v. 
 Brinckerhoff, 10 Wend. .284. 
 
 The oases whether open accounts are or are not barred (though they be between merchant 
 and merchant,) where the last item is above five years' standing. Chancellor Kent is in favor 
 of the bar in such cases. Carter v. Murray, 5 J. C. R. 522, and the like opinion is intimated 
 in 6 Ves. 580; 15 ib. 198; 18 ib. 286. Yet in Foster v. Hodgson, 19 ib. 179, 185, the whole, 
 matter seems to be again unsettled in England. But in Mandeville v. Willson, 5 Cranoh, 15, 
 the Supreme Court was clearly of the opinion, that it is not necessary that any of the items, 
 in the case of merchants' accounts, should come within the five years. And this also the 
 Court of appeals in Virginia considered the reasonable doctrine. Watson v. Lyle, 4 Leigh, 236. 
 
 (8) To several counts on distinct promises the defendant pleaded one plea of the statute 
 of limitations. A replication, that one of the promises is within £>n exception in the statute, 
 is good. Perkins v. Burbank, 2 Mass. 81. In an action by joint plaintiffs, a replication to a 
 plea of the statute of limitations, must avoid the effect of the bar as to all the plaintiffs ; 
 for it seems to be a settled rule that all must be competent to sue, ptljerwise the action cannot be 
 Rupported. Marsteller v. M' Clean, 7 Crauch, 166. 
 
OF THE SEVERAL REPLICATIONS. 584 
 
 the most recent decisions seem to establish that it may in some cases be ^^ 
 sufficient (.t). If the plea in effect denied or showed that no valid con- ■*«'''"P5"- 
 tract or promise was ever made, or claimed for the defendant an interest 
 in the goods stated in the declaration, then a replication de injuria or that 
 defendant broke his promise of his own wrona:, without the cause stated 
 in the plea, would be insufficient, because, in the first case, the plea in ef- 
 fect was that the defendant never undertook, and therefore it is illogical 
 to reply that he broke his promise (jj) ; but if the plea merely staled in 
 effect an excuse for the breach, then such a general replication would be 
 admissible (ar). The Court of Common Pleas and Exchequer have re- 
 cently so decided in two cases, on the general principles of pleading, and 
 not on consideration of the convenience of permitting such a replication 
 (^) but the applicability of that general replication will presently be fully 
 considered. 
 
 In actions of debt on simple contract, the replications have always been ^^ 'J™^- 
 and are to be substantially the same as in the action of assumpsit. If to contr™te° 
 debt on a specialty, fraud or duress be pleaded, the plaintiff may reply that and on 
 it was duly or fairly obtained (a), or he denies the plea of infancy (6), or specialties. 
 to a plea of usury, gaming, &c. traverses the illegality of the contract (c). 
 Replications to a plea of tender resemble those in assumpsit (d^ ; and to a 
 plea of set-off to debt on bond, the replication may either deny the sub- 
 ject-matter of the defendant's set-off or allege that more was due on the 
 bond than the sum mentioned in the plea (e). The only replication on a 
 plea of solvit ad or post diem is a denial of the payment (/) (1) ; and if 
 to debt on an annuity bond or deed, it be pleaded that no memorial was en- 
 rolled containing the names of the witnesses, <fec. the replication sets out 
 the memorial verbatim^ and states that it was duly enrolled (^) . If to 
 debt on a bail bond by *the assignee of the sheriff, the defendant has plead- [ *585 ] 
 ed ease and favor, the plaintiff should reply, stating that it was duly exe- 
 cuted, and deny the ease and favor (A) : or if the action be in the name 
 of the sheriff, and the bond is not set forth in the plea, the plaintiff should 
 pray that the bond may be enrolled, and then set it out, and state that he was 
 sheriff, &c. and the arrest of the defendant, and that the bond was made 
 to the plaintiff as sheriff, and traverse the ease and favor (z) ; and to a 
 plea of release, it is sufficient to deny it in the replication (k). . 
 
 At common law, and independently of the statute 8 & 9 Wm. 3, c. 11, ^^g';*' 
 s. 8 (2), it is frequently necessary in a bond for performance of cove- actions on 
 
 Bonds. 
 
 (i) Griffin V. Yates, and Isaac v. Flatter, (d) Id. 
 Westminster Hall Ctoonicle, 382, 383, and (e) 3 T. E. 65 ; post, vol. iii. 
 see 1 Crom. & M. 500. (/) Post, vol. iii. See 5 Moore, 198; 2 
 
 (j/) Solly V. Neish, 1 Gale, 227. Chit. Kep. 697, S. C. 
 
 (z) Griffin v. Yates, and Isaac v. Flather, (§•) Post, vol. iii. 
 
 Hil. T. 1836, 1 Westminster Chronicle, 882, (ft) Post, vol. iii.; 1 Saund. 159; Com. Dig. 
 
 383. PleadeK, 2 W. 25. 
 
 (0) Com. Dig. Pleader, 2 W. 19, 20. (i) 1 Lutw. 680, 685; 2 Saund. 60 a, note 
 (A) Post, vol. iii. 3. 
 
 (c) Id. (k) 2 Burr. 944. 
 
 (1) A general replication to the plea of " payment," does not of itself constitute an issue. 
 Nadenboach v. M'Bea, Gilm. 228. 
 
 (2) This statute has not been adopted in Massachusetts, Sevey v. Blacklin, 2 Mass. 642. 
 It is i^ force in Fenns^lvania, 3 Binn. 625. Roberts' Dig. 189. 
 
 NN^ 
 
585 OF THE SEVERAL REPLICATIONS. 
 
 IN DEBT, nants, where the defendant has pleaded performance, and the plaintiff 
 On special- j^^^g ^gj. assigned the breach in his declaration (/), to deny the effect of the 
 plea, and show a particular breach. Tlie rule is, that in all cases, (except 
 in the case of an award, which stands upon a particular ground), when 
 the defendant pleads matter of excuse, which admits a non-performance, 
 it is sufficient if the plaintiff deny the plea, and he need not assign 
 a breach in his replication, but it is otherwise where the defendant 
 has pleaded performance, or in other words, where the plea does not 
 put in issue any particular fact or breach (m) ; and in the latter case, 
 to a plea of general performance of the condition of the bond, the repli- 
 cation must state the breach with particularity, and should conclude with 
 a verification, in order that the defendant may have an opportunity of 
 answering it (w). And in the case of bonds affected by 8 & 9 Wm. 3, c. 
 11, s. 8, the plaintiff should state in his replication, (or suggest, in case 
 of non est factum, &c. pleaded,) all the breaches of the bond, &c. on 
 which he means to rely (o) (1). It must necessarily depend on the na- 
 ture of the case and the plea, as to what will amount to a plea of general 
 performance, or one which in effect puts in issue a particular fact. In 
 debt on a bond,' conditioned for the performance of an award, if the de- 
 fendant has pleaded no award, the replication must state the whole of the 
 award verbatim, and also assign a breach (jo) (2). If to debt on a bas- 
 tardy or indemnity bond, the defendant plead non damnificatus, the 
 plaintiff must reply specially, setting forth how he was damnified (9). Up- 
 on a bond conditioned that a collector of poor rates shall render an ac- 
 count of monies received after general performance pleaded, it is neces- 
 sary to reply that he received monies to be accounted for (r). But where 
 [ *586 ] to *debt on bond the defendant craved over, and after reciting a mort- 
 gage deed, which showed the condition to be for payment of a sum of 
 money on a day specified, according to the tenor of a proviso contained 
 in the indenture, and for the performance of the covenants therein, plead- 
 ed that there were no negative or disjunctive covenants in the indenture, 
 and that he paid the money mentioned in the condition on the day therein 
 specified according to the effect thereof, and performed all the covenants 
 and provisos in the indenture on his part to be performed ; and th^ plain- 
 tiff in his replication took issue generally on the non-payment of the 
 money, and concluded to the country ; on special demurrer, assigning 
 for causes that it should have concluded with a verification, and that no 
 breach of the condition was assigned according to the 8 & 9 Wm. 3, c. 
 11, s. 8, it was held that such replication was good, as the only point in 
 issue was the payment of the money, and as the plaintiff had therein de- 
 
 (Z) It is now coDsidered best hot to assign Sannd. 103, n. 1; n. 4, SI 7. See the mode, 
 
 the breach in the declaration, see post. 1 Price, 109; 6 Taunt. 45, i7. 
 
 (m) Willes, 12, 13. (?) Post, vol. iii. 
 
 (n) 2 Burr. 774; 1 Saund. 101, 102; Com. (r) 6 Taunt. 45; 1 Marsh. 441, S. C; 
 
 Dig. Pleader, F. 14, 15; post, ■vol. iii. semble, overruling 1 Price, 109; and see 
 
 (0) 1 Saund. 58, n. 1 ; 2 Saund. 187 a, n. Dougl. 214. Sums received need not. be 
 2; 2 New Rep. 362; 2 Moore, 220; 5 M. & specially mentioned, &o. As to replication, 
 Sel. 60. rejoinder, surrejoioder, &o. see 7 B. & 809. 
 
 (p) WiUes, 12; 2 Saund. 62 b, n. 5; 1 
 
 (1) In an action on a bond requiring the assignment of breaches of the condition, the 
 plaintiff, since the Revised Statutes, is bound to assign his breaches in the declaration, and 
 can no longer, as was the former practice, assign them in the repUcatlou or upon the record. 
 Reed v. Brake, 7 Wend. 346. 
 
 (2) SeeGihon v. Levy, 2Duer (N. Y.) 176. 
 
OP THE SEVERAL REPLICATIONS* 686 
 
 nied the ^vhole substance of the defendant's plea (s). And a plea (to a in debt. 
 declaration on a bond conditioned amongst other things for the payment of J^gg'^*"'*'' 
 ^3000) that all the sums of money which became due on the bond were 
 paid, may be replied to generally by a general denial of the words of the 
 plea, without assigning any breach (T). The mode of framing the repli- 
 cation will be hereafter considered (m). 
 
 Before the passing {x) of the 8 & 9 Wm. 3, c. 11, s. 8, the plaintiff in 
 an action on a bond, with a condition for the performance of anything, could 
 only have assigned one breach, and under that assignment was entitled to 
 the full penalty of the bond ; but now by the above statute, it is enacted, 
 " that in an action upon a bond, or any penal sum for non-performance of 
 any covenants or agreements in any indenture, deed, or writing contained, 
 the plaintiff may assign as many breaches of the covenants and agreements 
 as he shall think fit ; and the jury, upon the trial of such action or ac- 
 tions, shall and may assess not only such damages and costs of suit as 
 have heretofore been usually done in such cases, but also damages for 
 such of the said breaches so to be assigned as the plaintiff upon the trial of 
 the issues shall prove to have been broken, and that the like judgment 
 shall have been entered on such verdict as heretofore hath been usually done 
 in such like actions." Where the defendant does not plead, the statute pro- 
 vides, '• that if a judgment shall be given for the plaintiff on demurrer, or 
 by confession or nil dicit, the plaintiff may suggest upon the roll as many 
 breaches as he shall think fit ;" and upon such suggestion, a writ of inquiry 
 is to be executed before the judge at the assizes, or at *nisi prius, according [ *587 ] 
 to the venue, to ascertain the truth of the breaches, and to assess the 
 plaintiff's damage (.y). The statute is compulsory on the plaintiff to pro- 
 ceed in the method it prescribes («) ; and under the act the breaches must 
 be assigned as at common law, not merely in the words of the condition 
 but specially stating the facts (a). At one time it was considered ad vis- ^^'j*t'»«'to 
 able to state the breaches in the declaration, because it was supposed that breach of 
 if the defendant should plead non est factum or any other plea on which pondiiion 
 the plaintiff might at common law have taken issue in his replication, 1^"^'^!'*^'' 
 without assigning a breach, it would be incorrect to assign a breach in a or not un- 
 replication to such a plea ; but the better opinion now is, that the breaches tjl replica- 
 should not be stated in the declaration,hnt reserved for the replication, be- *"""• • 
 cause the defendant in rejoining can only present one answer to each breach, 
 whereas in pleading to the declaration he may answer each breach by 
 any number of pleas ; and if the defendant plead any plea on which the 
 plaintiff might at common law have taken an issue in his replication, without 
 assigning a breach of the condition of the bond, the plaintiff may still 
 take issue, and enter a distinct and separate suggestion in the nature of 
 an assignment of breaches under tlie statute, though he cannot incorporate 
 such issue and such suggestion in one and the same replication (b). If the 
 
 (s) 5 Moore, 198. ed, &o. 
 
 (i) 2 Chit. Eep. 697. (z) 1 Saund. 57; 2 Id. 107 a, n, 2; 2 
 
 (u) See posl,yo\. iii.;13 East,l;l T. E. Wils. 377; Sayer on Damages, 67, S. C; 
 
 748; 1 Lutw. 421; 2 Saund. 410; 2 Burr. Cowp. 357; Tidd's Prac. 9th edit. 584; 13 
 
 772; 1. B. & P. 140; 8 T. K. 459. East, 3, (n). The statute does not bind the 
 
 (x) See the reason explained, ante, 228, crown, 1 Y. & J. 171. 
 227. (a) 1 Marsh. 95; 5 Taunt. 358, S. C. 
 
 (y) There are also provisions that the (6) See 2 Saund. 187 a, &o. and note (c), 
 
 proceedings shall be stayed on payment of the by the editors of the 5th edit ; 5 M. & Sel. 
 
 sum really due, with costs, and that the 60; 5 Moore, 198; 1 Marsh. 95; 6 Taunt, 
 
 judgment shall be a security for fviure 386;8T. E. 255; 2 Chit. Rep. 278; 2 N. R. 
 
 breacheB on a further suggestion being enter- 862; 2 Moore, 220; Tidd, 9th ed. 686. Sea 
 
687 OF THE SEVERAL KBPWCATI0N8. 
 
 IN DEBT, defendant plead any plea which makes it necessary for the plaintiff at com- 
 
 Onspeoial- ^^^^ ^slw to assign a breach in the replication, as for instance, general per- 
 formance, the plaintiff must assign the breach in the replication, -with 
 this difference, that he may now assign several breaches under the statute, 
 whereas at common law he could only assign one. If only one breach be 
 assigned in the replication, it is not necessary to state that it. is assigned 
 " according to the form of the statute," and it is doubtful whether that al- 
 legation be necessary in any case (f). If issue joined on non est factum 
 and plea of fraud, and there be no suggestion of breaches, the judge will 
 try the issues, but refuse immediate execution, and leave the plaintiff to 
 suggest breaches, &c. (^d). The breach of the condition of a bond, other- 
 , wise well assigned, is not vitiated by the superaddition of immaterial 
 breaches (e). 
 
 [ *588 ] Where there is no plea to the declaration, and consequently no issue *to 
 be tried, judgment, either upon demurrer or by default, is to be signed for 
 the penalty, as at common law, and the plaintiff suggests breaches on the 
 roll, of which a copy should be given to the defendant, with notice of in- 
 quiry for the sittings or assizes, and a writ of inquiry is executed, and upon 
 that there is an award of execution (/). 
 
 This statute does not extend to a bond conditioned for a payment of a 
 sum certain at a day certain, or to a post obit bond (§•) ; nor a common 
 money bond (A) ; nor a warrant of attorney payable by instalments (i), 
 though a bond be also given (A;) : nor to a bail bond {I) nor a petitioning 
 creditor's bond (m), nor a replevin bond (w). But bonds for the payment 
 of money by instalments (o), or of annuities, or for the performance of an 
 award, are within the statute (;o). And although a bond be on the face of 
 it a common money bond, yet if there be a concurrent instrument showing 
 that it is in substance a bond intended to secure the performance of cov- 
 enants, &c. withih the meaning of the statute, it is necessary to suggest or 
 assign breaches in pursuance of the act, although the bond does not refer 
 to the insti'ument which explains it (9). 
 
 The 3 & 4 W. 4, c. 42, s. 5, gives a special replication of a written 
 acknowledgment or part payment to a plea of the statute of limitations to 
 debt on an indenture, specialty, or recognizance, under the third section. 
 
 ?n°/<f"j«r» '^0 Sb Tplea, oi nut tiel record in debt on a record, the replication must 
 state that there is such record, and conclude ;?roM< ^a<e< j»er recorrfwm, with 
 a prayer that it may be inspected, &c. (r) (1). If to debt on a recogni- 
 zance of bail, the defendant has pleaded no ca. sa. against the principal, 
 
 however, 3 C. & P. 608, why better in deola- (i) 3 Taunt. 74; 5 Td. 264; 16 East. 164$ 
 
 ration. 6 Bing. 385; 5 B. & C. 656. 
 
 (c) 13 East, 1; 2 Sauud. 187 a, &o. 5th , (fe) 2 Taunt. 195. 
 edit. (I) 2 B. & P. 446. 
 
 (d) D'Aranda v, Houston> 6 Car. &P. 512, (m) 3 East, 22; 7 T. R. 800. 
 514. (n) 8 M. & Sel. 155. 
 
 (c) Stothert «. Goodfellow, 1 Nev. & Man. (0) D'Aranda ». Houston, 6 Car. & P. 511, 
 
 202. S. P. 
 
 (/) Tidd, 9th edit. 585; see forms, &o. (p) See8T. R. 126; 6 East, 550, 613; 2 
 
 post, Tol. iii. Saund. 187, n. c; Tidd, 9th ed. 581; 3 M. & 
 
 (g) 2 B. & C. 82. 89; 8 D. & E. 278, S. C; Sel. 156. 
 
 2 Campb. 285; 2 Moore, 220. (g) 5 B. & C. 650; 8 D. & R. 424, S. C. 
 
 (A) 4 Ann. c. 16, 9. 13; 1 Saund. 58, 5th (r) Com. Dig. Pleader, 2 W. 18; post, vol. 
 
 cords, &c. 
 
 edit 
 
 in. 
 
 (1) Share v. Becker, 8 Serg & Bawle, 239; Bone v. M'Qinley, 7 Howard, (Miss.) 671. 
 
OF THE SEVERAL REPLICATIONS. 688 
 
 the replication must state the cos. sa. and conclude with a verification (s), ™ o™^. 
 and where the defendant has pleaded the death of the principal, before the ^^T 
 return of a ca. sa. the writ and return must be replied, and it must be 
 averred that the principal was then living (t). If to debt on a statute the 
 defendant plead a prior action depending, or a compromise by rule of 
 Court, <fec., the plaintiff may traverse the fact, or reply perfraudum (u). 
 
 *Ia COVENANT, as the declaration states the breach, and the plea usual- [ *589 1 
 ly denies it, and concludes to the country, a special replication does not so in 
 often occur as in assumpsit and some other actions (x) (1). covenant. 
 
 In actions, whether of assumpsit, debt, or covenant, against an BXBCtr- 1» actions 
 TOE OR ADMINISTRATOR, as such, to the plea of ne ungues executor, or ad- ■*^°^™^'' 
 ministrator, the plaintiff may re-assert the fact (^y). To the plea oiplene &o. ' 
 administravit, if untrue, the plaintiff should reply, that at the time of the 
 exhibiting the bill, or the commencement of the suit, the defendant had'as- 
 sets (2r) ; or if assets have come to his hands since the commencement of 
 the suit, and before the plea (a), or if at the time the defendant first had 
 notice of the action he had assets, but unduly administered them afterwards, 
 these facts may be replied specially (6). So, if the plea be plene adminis- 
 travit, except a sum not sufficient to satisfy bonds or judgments outstanding 
 the plaintiff may reply that the defendant had assets ultra (c) ; or that the 
 judgments mentioned in the plea were obtained by fraud and covin (d), or 
 suffered fraudulently for more than was due (e), or that the bond pleaded 
 as an outstanding debt is satisfied, and kept on foot by fraud (/). If the 
 plaintiff cannot deny the plea of plene administravit he should pray judg- 
 ment of assets quando acciderint, either generally or specially ; as, " which, 
 after satisfying monies due on the outstanding judgments, bonds, &c. men- 
 tioned in the defendant's plea, shall come to the defendant's hands as execu- 
 tor, &c. to be administered ;" (§•) or if plene administravit prceter a sum 
 acknowledged to be in hand has been pleaded, the plaintiff should pray and 
 take judgment pro tanto, and of assets quamdo acciderint as to the resi- 
 due in case the plea be true. If the defendant has pleaded the general 
 issue, or any other plea denying the debt or cause of action, with the plea' 
 of plene administravit, the plaintiff must proceed to trial to establish his 
 debt, and on the prayer of judgment of assets, quando, &c. upon the plea 
 of plene administravit, there is a stay of judgment till the determination' 
 of the issue. But where the debt has not been denied, and the defendant 
 has merely pleaded plene administravit generally or specially, and the 
 
 («) 2 T.B. 576 1 pos<^ vol. iii. (A) Posi, vol. iii. 
 
 It) Post, vol. iii.; see Fetersdorff on Bail. (c) Id. 
 
 (u) Post, vol. iii. id) Post, vol. iii. ante, 579. 
 
 Ix) See the forms, post, vol. iii.; 5 Went. (e) 5 T. R. 82; post, vol. iii. 
 Index, cii. to exliv. (/) Post, vol. iii.; Com. Dig. Pleader, 2 D< 
 
 (y) Post, vol. iii. 9. 
 
 («) Id. (g) Com. Dig. Pleader, 2 D. 9; post, vol. 
 
 (o) 6 T. K. 10; 3 Wentw. 221. iii. , 
 
 (1) Morris v. Wadsworth, 11 Wend. 100. 
 
 Vol. I. 77 
 
589 OP THE SEVERAL BEPLIOATIONS, 
 
 IS AOTiDss., plaintiff prays, judgment of assets quando acciderint thereon, there should 
 EXECB*"^ - be an entry of that judgment immediately, and an award of an inquiry to 
 
 TOBs, &e, ascertain the amount of the plaintiff's demand, unless the defendant has by 
 cognovit confessed the same in order to save the expense of an inquiry (A) ; 
 
 [ '590 ] or unless in *reference to the form of action the judgment is final in the 
 first instance, as in debt, &c. On a plea of plene administravit prater, 
 the plaintiff is entitled to judgment of assets m/M^wro quando for costs aa 
 ■well as for the debt (i), and the plaintiff should not take issue on the plea, 
 for if he do, and the plea be found for the defendant, the latter will be en- 
 titled to all the costs (Ji). 
 
 In debt against an heir on the bond of his ancestor, to plea of parol 
 demurrer, the plaintiff may deny or confess the plea (l^ ; and to a plea of 
 rien per descent the plaintiff may reply either that th^ defendant had such 
 assets at the time of the commencement of the suit (m), or that he had 
 them between that time and the death of his ancestor (w) (1), or if rien 
 prater a reversion be pleaded, the plaintiff may take judgment, Ac. cum 
 acciderint (o). 
 
 IB eta*. In an action on the case for a libel or verbal slander, the general 
 replication de injuria sua propria absque tali causa, (the nature of which! 
 will be hereafter fully considered), it is sufficient to a plea of justification 
 when untrue (p) (2) ; unless the plea alleged that the plaintiff committed 
 perjury in a Court of record, when this general replication would be impro- 
 per, because it would refer the matter of record: to be tried by the jury (9). 
 So if in an action on the case for slander of title, if the defendant has plead- 
 ed that he spoke them in defence of his own title,, the replication de injuiioi' 
 is incorrect on general demurrer, though good after verdict (r). But if the 
 plea be true, the plaintiff must reply some matter in confession and avoid- 
 ance ; as that after the commission of the crime, and before the speaking,,- 
 &c. he was pardoned, &c. (s). 
 
 To a plea, by a sheriff in an action for an escape, that the escape was< 
 negligent,, and that the party was taken on fresh suit, the plaintiff may re- 
 ply that the escape was voluntary, or allege that the party was notj after 
 the recapture, kept in safe custody (<). If accord audisatisfactionj or the^ 
 statute of limitations be pleaded in case or trover, the replications will* 
 resemble those in assumpsit (m). 
 
 It has been supT^osedthsitiQ Replevin,, de injuria never occurs (a;) (3);. 
 
 (A) Post, Tol. iii.; see ante, 489. (g) Leon. 81, 102; Com. Dig. Pleader, P. 
 
 (i) Cox t). Peacock, 2 Scott's Rep. 125, 20. 
 
 Ik) Iggulden v. Tenson, 2 Dowl. 277. (r) Gro. Jac. 163/164; post. 
 
 (0 Pes/, vol. iii.; Com. Dig, Pleader, 2 K.. (s) Dan. 163, Moorei 86a, 872. 
 4. it) 1 B. &P. 413,416,417; 1 Saund. 35. 
 
 (m) Id. notel; 2 T. R. 127; 5 East, 293; see U 
 
 (re) Id.; 6 Mod. 122, 128i East, 406. 
 
 (0) Com. Dig. Pleader, E. 4, 5. (k) .ante, 582i 583. 
 
 (p) 1 Saund. 244, note 7; Com. Dig; Plta^ (i) Finch's Law, 896; 1 B. & P.'76; 2 
 der, 2 L. 4; post, vol. iii. Saund. 284 c. n. 3. 
 
 (1) And the replication in this case may ccnclade with a verification. Labagh v. Cantine, 
 13 Johns; 272. 
 
 (2) Allen v. Crowfoot, 7 Cow. 46. 
 
 (3) Vide Hopkins v. Hopkins, 10 Johns. 369. But if pleaded, it can only be taken advan- 
 tage of by demurrer. Ibid. Lytle.t>. Lee.iS Johs»<ill2. 
 
OP THE SEVERAL REPLICATIONS. *691 
 
 BAB IN 
 
 KEPLGVIH, 
 
 but this is uot so ; and to an avowry under a distress for an arrear of *poor- *'«*«' ni 
 rate a general plea in bar de injuria is sufficient (y) ; but by the statute {z) 
 he may in general, with leave of the Court, plead several pleas in bar. 
 If the defendant has pleaded cepit in alio loco, with an avowry or cogni- 
 zance for a return, the plaintiff cannot traverse any matter in the avowry 
 or cognizance, but must take issue on the traverse of the place or amend 
 his declaration ; but if the defendant had them in the place mentioned in 
 the declaration, though he took them elsewhere, the plaintiff may safely 
 take issue (a) ; and to any cognizance the plaintiff may traverse that the 
 defendant was bailiff, concluding to the country (&). 
 
 To an avowry or cognizance for rent, the plaintiff may in one plea in 
 bar deny the demise or tenancy (c), and in another, that any part of the 
 rent was in arrear (d) (1), concluding each to the country (e) ; or he may 
 plead payment of rent to a ground landlord, or prior incumbrancer, or of 
 land or property tax in respect of the premises, though he cannot avail 
 himself of any other set-off (/). So a party may plead a former distress and 
 satisfaction under it (^) ; eviction is also a good plea in bar (Ji). But since 
 the statute 11 G-eo. 2, c. 19, when the defendant avails himself of the gen- 
 eral avowry, the plaiotiff cannot in terms plead nil habuil in tenementis : 
 though he may traverse the tenancy, which if the avowant claims under a 
 derivative title and has never received rent, will put such title in issue (i)v 
 So where the plaintiff admits the tenancy and that part of the rent was in 
 
 iy) Bardons v. Selby, 1 Grom. & Mees. (e) Ld. Raym. 611; ISaund. 103 b. 
 
 500, in Exchequer Chamber, and S. C. in K. (/) 4 T. R. 511; 6 Taunt. 524; Dougl. 
 
 B. 3 B. & Adol. 2. Batde injuria is a bad 624, 625; 2 Chit. Rep. 531; 2 Bing. 94. 
 
 replication to a plea justifying an entry as And as to pleas of payment of ground rent, 
 
 londlord to distrain, 4 Tyr. 777. see 1 B & B. 37; 3 Moore, 287, S. C; 8 B. & 
 
 • («) 4 Ann, c. 16. Aid. 516, as to property-tax, 1 B. & Aid. 123; 
 
 (a) 1 Siund. 347, note 1 ; post, -voX. in. ; post, vol. ii. 
 Ast. Ent. 475. And as to the pleas in bar (g) 5 Moore, 5i2, 4 Moore, 309; 1 B. & 
 
 connected with the place, see 1 Saund. 347, Aid. 167. 
 note 1; Com. Dig. Pleader, 3 K. II to 29. (A) Post, vol. iii. 
 
 (4) Post, vol. iii.; lid. Raym. 641; Com. CO 2 Wils. 208; 5 T. R. 4; 2 Saund. 284; 
 
 Dig. Pleader, K. 14. d; 1 New Rep. 56; 4 Moore, 303; 2 Bing. 
 
 (c) Post, vol. iii.; Com. Dig. Pleader, 3 K. 54, 10; 4 T. R. 511; ante, 487. JVbn tenuU 
 16, 20 b. is not pleadable to a cogciizance for rent in 
 
 (d) Post, vol. iii. ; Com. Dig. Pleader, 3 K. arrear under a demise of a receiver in chanoe- 
 16, 20. ry, 4 Bing. 2. 
 
 (1) In Ohio in replevin the plaintiff raa<y put in a double replication. Colter v. Doty^ 6 
 Ohio, 393; Middleton v. Quigley, 7 Halst. 351. A plea of no° rent in arrear is an admission: 
 of the demise and of the title of the defendant, as laid in the avowry. Alexander v. Harris, 
 4:Ciranch, 299; IliU v. Wright, 2 Esp. 269; Hill v. Miller, 5 Serg. & Bawle, 255. Hence 
 the adviantage of also pleading hon demisit. The general principle is, that any thing may be 
 given in evidence under the general issue, which shows that no right of action ever exist- 
 ed; and in some cases facts may be shown which prove that. no right of action existed 
 at the commencement of the suit. In debt for rent, the defendant, under the plea of nil dibet, 
 may show an eviction by the plaintiff. But in covenant, an eviction cannot be proved, unless 
 pleaded. Riens in arrere is the general issue to an avowry for rent; and under it an eviction 
 may be shown. Lewis v. Payn, 4 Wend. 423. If the lord or lessor disseises or ousts the 
 tenant or lessee of any part, the whole rent is suspended. (9 Coke, 135.) This principle was 
 recognised and adopted in Dyette v. Pendleton, 8 Gowen, 728. In that case it was said 
 that such defence could be given in evidence under a plea of eviction only; that, how- 
 ever, was an action of covenant, in which there is no general issue. In the case of Watts 
 V. Coffin, 11 Johns, 409, it was said by Van Ness, Justice, that an eviotion to prodaoe 
 tea apportionment, or a. suspension of the rent, must be of part or the whole' of the thing 
 
591a OP THE SEVERAL EEPLICATIONS. 
 
 PLEAS IN arrear, he may plead rien in arrere as to part, and a tender of the resi- 
 
 Jp^^vS,. due (A)(1). . . . ^,^. 
 
 To an aTowry or cognizance by a freeholder, or a copyholder, or his 
 tenant, for a distress damage feasant, the plaintiff may deny his title, and 
 conclude to the country or state his own title specially, and conclude with 
 a traverse ; though the former seems preferable (m). So the plaintiff may 
 in his plea in bar state a demise to himself from the defendant (n) ;, or a 
 right of common in the locus in quo either as a freeholder or copyholder, 
 
 [ *592 ] or as his tenant (o). In general, a *freeholder claims a right of common 
 by prescriptions {p) ; and a copyholder grounds the right upon a custom 
 within the manor, either for all copyholders within the manor, or for the 
 tenant of the defendant's land in particular {q}. Where the_ copyholder 
 claims common or other profit in the soil of a stranger, which is not parcel 
 of the manor, he must prescribe in the name of the lord, viz. that the lord 
 of the manor and his ancestors, and all those whose estate he hath, have 
 immemorially had common, &c. in the locus in quo for themselves and 
 their customary tenants (r). So the plaintiff may plead in bar a right of 
 way over the locus in quo (s) ; or in excuse for the cattle having been in 
 the locus in quo, he may plead defect of fences, which the defendant ought 
 to have repaired (t) ; so, admitting that the cattle trespassed in the locus 
 in quo, the plaihtiff may traverse that the distress was made whilst the 
 cattle were damage feasant (u) ; or may plead a tender before the impound- 
 ing (a;). It should seem that in the case of a distress damage feasant, the 
 plaintiff might plead in bar, that the avowant, after making the distres% 
 used the cattle, or otherwise became a trespasser ab initio Qj') (2). 
 
 TRESPASS. 
 
 EEPticA- In trespass to persons, if the defendant has pleaded son assault demesne 
 iioNsiN g^jj^ ggif defence, or a defence of a father, mother, son, &c. or any other 
 plea merely in excuse (3) of an injury to the person, (and not a justifica- 
 
 (fc) Post. vol. iii.; Clift. Ent. 646; Com. (0 PosJ, toI. iii. ; 2 Saund. 284 c. 285, n. 
 
 Dig. Pleader, 3 K. 20. 4; 289, n. 7; 2 Hen. Bla. 527. 
 
 (m) Post, vol. iii.; 2 Saund. 206 a, note (u) 3 Esp. Kep. 95. * * 
 
 22; 1 Saund. 103 b; 1 Co. 63, 64. (x) Post, vol iii.; Com. Dig. Pleader, 8 K. 
 
 (n) Post, vol. iii. 23; Bui. N. P. 60; Lutvr. 1696; 1 Campb. 
 
 (0) Id.; Com. Dig. Pleader, 3 K. 24. 285; 1 Taunt. 261, S. C.ci vide 1 Bing. 341; 
 (p) Post, vol. iii.; Com. Dig. Pleader, 8 K. 8 Moore, 234, S. C; 4 Bing. 230; 2 Moore, 
 
 24; 1 Saund. 348, note 10. ' 454, S. C. 
 
 (5) Id.; 1 Saund. 348, note 8, 11. (y) Com. Dig. Pleader, 3 K. 20; Bac. Ab. 
 
 (r) 1 Saund. 349, note 11; Com. Dig. Trespass, B.; 3 Wils. 20; 1 M. & p. 802; 
 
 Pleader, 3 K. 84; see forms referred to, post, ante, 138. Atiter in the case of a distress 
 
 voL iii. for rent, ante, 138. 
 
 (s) Com. Dig. Pleader, 3 K, 24 ; post, vol. iii. 
 
 (1) There can be no suoh thing as a general issue to an avowry; but some special point 
 must.be traversed. Hill v. Miller, 5 S. & R. 357. 
 
 (2) Ace, Hopkins v. Hopkins, 10 Johns, 369. 
 
 (3) That the general replication de injuria is good only where the defendant pleads matter 
 in excuse, see Lytle v. Lee, 5 Johns, 112; Hyatt v. Wood, 4 Johns, 150; Plumb ». M'Crea, 12 
 Johns. 491; Strong v. Smith, 3 Caine, 164; Hannen v. Edes, 15 Mass. 847; Cof&n v. Bassett, 
 2 Pick. 359. But in New York, where in an action of trespass, the defendant under the act 
 
 for the mqre easy pleading in certain suits, (sess. 24. c. 47. s. 2. 1 R. L, 155,) pleads, that the 
 supposed trespass was done by authority of a statute of this State, without expressing any 
 other matter or circumstance contained in such statute, the plaintiff must reply de injuria, &c. 
 concluding to the country; and a special replication, concluding yii\3f, an aver^uent, is bad. 
 Comly V. Iiookwood, 15 JpliM. 188. 
 
OP THE SEVERAL REPLICATIONS. 592 
 
 IIOBa IN 
 TRESPASS. 
 
 tiou under process of a court of record, the replication or general traverse keplica- 
 de injuria, or de son tort demesne, the qualities of which will be explained "'""" '" 
 hereafter, is in general proper if the plea be wholly untrue (2) (1). And 
 this general replication will suffice, though title be alleged as inducement ; 
 as if to a declaration for an assault and battery, the defendant plead that 
 he was possessed, (or, according to some cases, seized in fee (a) of a 
 close, and had cut his corn, and that the plaintiff came to take it away, 
 and the defendant, in defence thereof, assaulted the plaintiff, de son tort 
 is a good replication (b). But if the plea be true, and the plaintiff did 
 in fact commit what in point of law amounted to the first assault, but can 
 justify it, *he must reply specially, confessing and avoiding the plea as [ *^^^ ] 
 if the plaintiff did in fact make the first assault in defence of his father, 
 son, &c. or to turn the defendant out of his house, whereupon the defend- 
 ant assaulted and beat the plaintiff, this answer to the plea must be replied 
 specially (c). So, if the defendant has pleaded son assault demesne in 
 defence of the possession of his close, and the plaintiff claim a right of 
 way over it, he must specially reply such right of way, and that he was 
 upon the land in the exercise of such right (li). It is said, that if the 
 defendant's battery were outrageous, or moie than was necessary for self- 
 defence, that matter should be so replied (e). And matter in aggravation 
 or an excess, must be new assigned (/) So where to assault and battery 
 the defendant pleaded that the plaintiff was his apprentice, and behav- 
 ed saucily and refused to obey his lawful commands, and that he mod- 
 erately corrected him, and the plaintiff replied de injuria, the fall Court 
 of exchequer held, that under that replication the plaintiff could not in- 
 sist that the chastisement was immoderate, because that matter should 
 have been specially replied (g-). So, if there be only one count in the 
 declaration, and the defendant has pleaded son assault, and there have 
 been two distinct assaults, one excusable and the other not, the plaintiff 
 should not reply, but should new assign another assault (A) ; but if there be 
 several counts in the declaration, equal to the number of assaults, this 
 would be unnecessary and improper (t). The course which the plaintiff 
 should adopt, if the defendant plead that the two assaults mentioned in dif- 
 ferent counts <are one and the same, and then show matter justifying in the 
 same plea one assault only, has already been pointed out (A). Where the 
 
 (z) Posi, Tol. iii.; Com. Dig. Pleader, F. Reece ». Taylor, 1 Har. & Wol. 15; Prices. 
 
 18; Cro. Jac. 224; Yelv. 157; Willes, 54, 101; Peck, 1 Bing. N. C. 386, 387; 7 Moore, 33; 
 
 1 B.-& P. 80. 2 Campb. 176; 3 Wila. 20; 5 B. & A. 220; 
 
 (a) Post, 594; sed quare, see Willes, 100, lemble. Skin. 837; Willes, 17; 1 Selw. N. P. 
 
 101. 29, note 9; sed queer e, if not sufficient to 
 
 (J) Com. Dig. Pleader, F. 21; id. 18; 2 reply rfe in;»ria ; Qilb. C. P. 154 ; 8 T. E. 81. 
 
 Saund. 295 b, ii. 1. And Lord Tenterden, C. J. at Nisi Prius, 
 
 (c) Post, Tol. iii.; Carth. 280; 1 Salk. signified that he was of this latter opinion; 
 407; Skin. 387; 7 Moore, 33; 7 Taunt. 156; and see Reeee v. Taylor, 1 Harrison, E. 15, 
 and see 2 Bla. Rep. 1166, S. P.; and see in 16, per Littledale, J. 
 
 general when or not a replication de injuria (/) 2 Campb. 176. 177, 629; 10 East, 73; 
 
 is proper. Price «. Peck, 1 Bing. N.C. 386, 7; 7 Moore, 33. As to new assignments, see 
 
 Hosker v. Nize, 1 Crom. M. & Ros. 258. post. 
 
 When the defendant must prove all the grounds (g) Penn v. Ward, Exchequer, Westmin- 
 
 of justification stated in his plea, Eees v. Tay- ster, 5 June, 1835. 
 
 lor, 1 Harr. 15. (A) Post, vol iii. ; 1 Saund. 299, note 6, 
 
 (d) Post, vol. iii. («) Id. ibid. 
 
 {«) Neville ji. Cooper, 2 Crom. & M. 350; (k) .;4n<e, 414;E. M.118. 
 
 <1) See Sampson v. Henry, 11 Pick. 879; M'Dermot v. Kennedy, 1 Harring, 143; Qates v. 
 J/aunsbury, 20 Johas. 427, 
 
S93 OF THE SEVERAL REPLICATIONS. 
 
 ™ justification is under a writ, warrant, or other process of a court of remrd, 
 1™^T^*^'" t"^^ plaintiff cannot reply de injuria generally, putting the whole of the 
 persons. plea in issue (J) ; but must, according to the facts of each particular case, 
 either specifically deny the issuing of the writ, or the making of the war- 
 rant {in'), or protest the writ or warrant, which in effect admits it, and re- 
 r *K^A-\^\j de injuria *a.s to the residue (ji). If the parties have been guilty of 
 ^ any illegal conduct, as undue violence, or an imprisonment before the issu- 
 ing, or after the return of the writ, the plaintiff should reply the facts, or 
 new assign (o) ; and matter which shows the defendant, by subsequent 
 misconduct, became a trespasser ab initio (p), should be specially re- 
 plied iq) (1). 
 
 2dly. To In trespass to personal property, where the defendant has in his plea 
 personalty, merely justified in his own right, the chasing cattle, or remoyiBg- personal 
 property from a close, &c. whereof he was possessed, the plaintiff may 
 reply de injuria generally (r) ; and it appears to have been considered 
 that this replication would also suffice, where, in a similar plea, it is stated 
 that the defendant was seized in fee (s) ; and although when the defendant 
 had justified as servant of another {() ; or under a distress for rent (w) ; or 
 the taking and impounding, and not merely the chasing of cattle, &c. (x) ; 
 it has been considered that this general replication will not suffice, that 
 doctrine was doubted, and it has been recently decided that, although the 
 defendant has justified as servant of a third person, de injuria may be re- 
 plied (y). And in cases where this general replication might not be bad on 
 demurrer, it may, nevertheless, be advisable, and in some cases necessary, 
 to reply specially ; as if there be two tenants in common, and one bring 
 trespass against the other for taking his cattle, to which the defendant 
 pleads that he took them damage feasant ; in this case it seems, that the 
 plaintiff ought to reply specially that he was tenant in common with the 
 defendant, and to show that he was not a trespasser (s). But if the jus- 
 tification be under a. fieri facias, or other process, the replication must not 
 be de injuria generally but must state the particular answer to the plea, as 
 in the case of trespass to persons (a). Where the answer to a plea con- 
 fesses, and avoids it the replication should be special ; thus the plaintiff 
 ought to reply his right of common, or defect of fences, to a plea of a dis- 
 tress damage feasant (6) ; or he may show that the plaintiff converted such 
 distress to his own use or abused it (c). 
 
 8dly. To Iq trespass to real properly, Wq plaintiff might to the plea libery,m ten- 
 
 (l) 6 Co. 67 a; Cpm. Dig. Pleader, F. 19, Saund. 295 a, n. 1; 7 Price, 670, S. P. ; Willes, 
 
 20. 52, 202; sed vide Willes, 103; 1 B. & P. 80; 
 
 (m) 1 Saund. 299 b. «* 12 Mod. 582; and pas*. 
 
 (») Post, -vol. iii. (0 Willes, 99; 1 B. & P. 80. 
 
 (o) Post, vol. iii.; 1 Saund. 299. n. 6; (») Willes, 52. 
 
 Lutw. 1436; Skin. 887; Com. Dig. Pleader, 3 (x) Willes, 101, 102; Ore. Jao. 225. 
 
 M. 16; 2 T. R. 172; 2 Campb. 176, 177; 16 (y) Piggot v. Kemp, I Crom. & M. 197; 
 
 East, 85; 7 Moore, 38; see post. and see in general Bardons v. Selby, in Ex- 
 
 , ( p) As to whioh, ante, 172. chequer Chamber, 1 Crom. & M. 500. 
 
 (5) 5 B. & C. 485, supra, n. (»). (2) 1 East, 218. 
 
 (r) 1 East, 212; 1 Crom. & M. 197; post, (a) Ante, 593 and notes. 
 
 Tol. iii. (4) Post, vol. iii. See 1 M. & P. 783. 
 
 («) 1 East, 212; Telv. 157; Lutw. 221; 1 (c) 8 Wilg. 26; 1 Salk.221; Cro. Jao.147; 
 
 Brownl. 215; Com. Dig. Pleader, F. 21; 2 post, vol. iii. 
 
 I " ' - ) 
 
 (1) Curtis V. Canon, 2 New Hamp. 689; Hannen v. £d«s, 16 Mms. 847. 
 
OP THE SEVBHAIi, BfiPLlCA'ttfll^Si *i595 
 
 ementunti reply,' according to the' facts, in cithet of four *way^ (1). j^.,"* ,, 
 1st, If the nameor abuttals of the close had been so irtiiiutely stated in ^'■''"*'™- 
 the declaration that there could be no question whait close was alluded to 3'i'yTo 
 (£^), and the plaintiff's title was inconsistent with the defendant's, as if''*" ^' 
 the plaintiff insist that the locus in (jyio is his freehold, or the freehold of 
 another person, then the replication should deny the defendant's title, by 
 replying, that it Is the plaintiff's or the third person's freehold, and not 
 the defendant's, and should conclude to the country^ or the replication 
 may merely deny that the close is the defendant's freehold, which latter 
 mode is proper where the plaintiff is not entitled to the freehold (e) ; or, 
 2dly, If the plaintiff derive title under the defendant, then he must traverse 
 his plea, but confessing the defendant's title, must reply the lease or 
 some other title under him, concluding with a verification (/) ; or 3dly, 
 If the plaintiff has a middle case, and neither derives a title under the de- 
 fendant, nor has a title inconsistent with the' defendant's, he may reply, 
 that before the defendant had anything in the premises ailother person was 
 seized, and made a lease for years to a person, under whom the plaintiff 
 claims,! stating his derivative title, without either expressly confessing or 
 denying the defendant's plea, and concluding -with a verification (§■); but, 
 4thly, If the declaration be general, without naming the locus in quo or 
 the abuttals, and there be any reason to apprehend that the defendant has 
 any land in the same parish, the plaintiff must always have new assigned,' 
 setting out the locus in quo with more particularity (A) (2). The doctrine 
 oinew assignment will be considered in asubsequent part of the work. 
 
 Where in treepass quare clausum freprit the defendant in his plea claims 
 an interest in the land (bls, t\\Q right to distrain for rent inarrear,) a repli- 
 cation of de injuria is bad on general demurrer (i). 
 
 It was formerly cdnsidered that, if the defendant justified, as servant or 
 bailiff of affeehotder or termdr, the plaintiff could not traverse the defend- 
 ant's authority, because he would leave unanswered the other parts of the 
 plea, and thereby admit that another is entitled to the possession ; though 
 if both parties claimed under the same person, the coriirhand was always 
 considered as traversable (A). But now it is settled that the plaintiff may 
 in all cases take issue upon the fact of the defendant's having been author- 
 ized to commit the trespass {I). *If the defendant in his plea has relied [ *596 ] 
 on a possessory title derived from the smiM in fee of a stranger, the plain- 
 tiff canaot take issue on the matter stated in the plea by way of express 
 
 (rf) It is now necessary by Reg. Gen. Hil. Com. Dig. Pleader, 3 M. 34; 7 T. R. 335; 2 
 
 T. 4 W. 4, reg. V., in a declaration in tres- Sulk. 453; 6 Mod. 119; Willes, 223; 2 Taunt, 
 
 pass, to state the abuttals or name, or other ]56; 2 B. & C. 918, 459; post, -vol. iii. ace; 
 
 description of dose, or defendant may'demtir Dyer, 23, conira. See post. 
 
 specially, ante, 520. As to a variance or am- (i) Hooker v. Nye, 1 Crom. M. & Ros; 268; 
 
 biguity in abuttals, see 8 Bing. 75. 5 I'yr. 777, where see most of the modern oaScs 
 
 (e) Willes, 225; 1 B. & C. 489;:2 D. & K. cited; and see ante, 594, note {y). 
 
 719,8. Cpos/, vol. iii. (k) 1 East,;245; Cro. Car. 585; 6 Co. 24 
 
 {/) Willes, 525; post, vol. iii. a. ; Salk. 107; 1 Saund. 347 c. n. 4. 
 
 (g) Id. 225,226. (0 11 East, 65. 
 
 \h) 1 Saund. 299 b. c; Stet)h. 2d edit. 265; 
 
 (1) To a plea of ZiAcrttm iencJTieWum' the plaintiff cannot reply de injuria sua yrO;)rio!. Hyatt 
 V. Wood, 4 Johns. 150. In trespass qiiar'e' elausum /regit, if the declaration be general, with- 
 out naming the locus in quo, or the abuttals of the close, and the defendant pleads tiberum ten- 
 ementum, upon which the plaintiff takes issue, instead of new assigning, the defendant verifies 
 bis plea by showing title to aUy lands in the' town where the premises are alleged in the decltira- 
 tibn to be situate. Austin v. Morse, 8 WeniJ. AIT. 
 
 (2) Collins V. Andrews, 6 Watts, 516. 
 
596 OP THE SEVERAL EEPLICATIONS. 
 
 I" color (m), but may deny the demise, &c. to the defendant, without show- 
 3diy™To"' '^^^ ^^^ *^*^® ^ himself (w) ; or may reply that the defendant, before the 
 realty. trespasses were committed, demised the close to the plaintiff ; or if the 
 plaintiff deny the title of the party under whom the color is given, he 
 should show his own title, and traverse that stated by the defendant (o) ; 
 and if the plaintiff insists that the defendant's tenancy has been determined 
 by a notice to quit, or a surrender, or forfeiture, &c. he should reply that 
 matter specially (p). 
 
 To a plea of license, the plaintiff may reply generally, that the defend- 
 ant of his own wrong, and without the supposed license, committed the 
 trespasses, concluding to the country {q) ; or, as it has been considered if 
 the plaintiff did license the defendant to commit some acts, then he should 
 reply a revocation, or new assign that he brought his action for other dif- 
 ferent trespasses (r) but it seems that if the license only extended to some 
 of the trespasses, and that other trespasses were committed at different 
 times, and not covered in evidence by the license, then the general repli- 
 cation de injuria will suffice (s). 
 
 To a plea of escape of cattle through defect of fences, which the plaintiff 
 ought to have repaired, it is said, that as the plea contains mere matter of 
 excuse, the plaintiff mayreply de injuria (f), or he may deny in particular 
 the obligation to repair, or the defect of the fences, or the defendant's right 
 to put the cattle in the close adjoining the locus in quo, concluding to the 
 country (m) ; but he should reply specially that the defendant turned the 
 cattle into the locus in quo, or that they were unruly, and conclude with a 
 verification (a;). 
 
 To a plea claiming a right of common, the plaintiff cannot reply de in- 
 juria (y), but must either deny the seisin in fee or other title to the estate, 
 as appurtenant to which the defendant claims his right, or may deny the 
 right of common as stated in the plea (z) (1), or that the cattle were the 
 defendant's own commonable cattle levant and couchant upon the premi- 
 [ *597 ] ses (a), concluding to the country, and not with a *formal traverse (6). 
 But it is said, that the latter case where the defendant has turned on his 
 own commonable cattle, as well as other cattle, the plaintiff should new 
 assign, stating that he brought his action for depasturing the common with 
 other cattle, and ought not to traverse the levancy and couchancy (c). The 
 plaintiff may also reply an approvement (d) ; or he may reply that the close 
 in which, &c. had been inclosed from the common more than thirty years 
 
 (m) As to this, see ante, 529. Pleader, M. 29; post, 638, 640. 
 (n) 2 Stra. 1238; Fortes. 378; Poph. (u) 1 Saund. 103 b; Com. Dig. Pleader, 8 
 
 1,2. M. 29; posi, vol. iii. 
 
 (0) Poph. 2; Com. Dig. Pleader, P. 13; 10 (a) Post, vol. iii. ; Lutw. 1358, 1359; Com. 
 East, 189. Dig. Pleader, 8 M. 29; Rast. Ent. 621 a. 
 
 {p) 7 T. R. 431; 1 Lev. 307; post, vol. (y) 9 Co. 67 a; Willes, 101; 16 East, 350; 
 
 iii. 7 Price, 670. 
 
 (?) 11 East, 45; post, vol. iii.; 1 Saund. (a) See, however, 2 T. & J. 79; post, 
 
 103 b. 597. 
 
 (r) 1 Saund. 300 a; 2 Id. 5, end of note 3. (a) 1 Burr. 820; Willes, 100, note c; Bui. 
 
 See replication of a Tfaiver of a forfeiture, 2 N. P. 93; 8 Co. 67 b. 
 
 Campb. 629. (J) 1 Saund. 108 b.; post, vol. iii. 
 
 («) 11 East, 451; see post. (c) 1 Saund. 346 d. 
 
 (0 Willes, 54; Rast. Ent. 621 a; Com. Dig. (d) Post, vol. iii.; 7 B. & C. 846. 
 
 (1) And a replication to a plea that the locus in quo had been inclosed by consent of the lord, 
 must state that after the inclosure there was suf&oieut common left for the commoners. Rogers 
 *. Wynne, 7 Dowl. & Ryl. 521. 
 
OP THE SEVERAL EEPLICATI0N8. 597 
 
 and enjoyed adversely (e). But it seems to be sufficient in these cases, w 
 merely to deny the existence of the common of pasture, &c. stated in the ^^^j^^' 
 plea, without replying specially, &c. (/). realty." 
 
 If a public or private rig-ht of way be pleaded, the plaintiff may deny 
 the way, and conclude to tlie country, and he may also new assign (g-), or 
 allege that the defendant used the way to another tenement than that al- 
 leged in the plea (A) : or to a plea of a private way, the defendant's title 
 may be denied (i), and the plaintiff may, under such replication, give in 
 evidence an order of justices under 13 G-eo. 3, c. 78, s. 19, and 55 Geo. 3j 
 c. 68, whereby the public or private way has been stopped (A;). But where 
 the plaintiff cannot deny the plea, and only insists that the defendant tres- 
 passed out of the way, or was guilty of unnecessary damage in removing 
 an obstruction, or actually converted the materials to his own use, in order 
 to save unnecessary expense, the plaintiff should not deny the right of 
 way, but should merely new assign, extra viam, &o. De injuria generally 
 cannot be replied to a plea justifying under a right of way Q). If the 
 plaintiff merely traverse a non-existing grant of a way, he cannot on the 
 trial give evidence to show that the supposed grantor was not, as alleged 
 in the plea, seized in fee, even for the purpose of rebutting the presumption 
 of the grant (m). And under a general traverse of a custom which is laid 
 in the plea to exist, with a certain exception the plaintiff cannot contend 
 that he is within the exception (w). 
 
 The replication to pleas justifying a trespass to real property, under pro- 
 cess of Courts of record, are similar to those in trespass to persons, in 
 which we have seen that the plaintiff cannot, in general, put in issue the 
 whole of the matters in the plea, by replying de injuria (o). 
 
 The replications to pleas in trespass of matters in discharge in general^ 
 resemble those in assumpsit {p). Thus, if a release be pleaded, the repli- 
 cation may be non est factum, or that it was obtained by *fraud (g). To a [ •598 ] 
 plea of accord and satisfaction, the plaintiff may deny the accord, or state 
 that it was for another trespass, with a traverse of the acceptance in satis- 
 faction of the trespass complained of, or he may allege, that the defendant 
 was guilty after the accord (r) ; or to a plea of a distress for the same tres- 
 pass, he may reply that the cattle died in the pound (s) ; or to a plea of 
 tender, that no tender was made, or that it was insufficient (<). And to a 
 plea of the statute of limitations, the plaintiff may reply a writ, or any 
 other matter of which he could avail himself in the action of assumpsit (m). 
 
 (e) 2 B. & C. 918; and see 2 Taunt. 156. (m) 1 Crompt. & Jerv. 48. 
 
 But if only part of the close wherein the al- (n) 2 Y. & J. 79. 
 
 leged trespass was committed has been so in- (o) Ante, 593. 
 
 closed, the plaintiff should reply so, as it would {p) As to these, see ante, 582. 
 
 be incorrect to reply the whole close has been Iq) Com. Dig. Pleader, 3 M. 12. 
 
 inclosed, id. ib. (r) Id. 3 M. 13. Sed qiitere, if the plain- 
 
 (/) 7 B. & C. 316. tiff ought not^ in such case, to ntw assign, see 
 
 (g) 1 Saund. 103 b; post, vol. iii, post, vol. iii. 
 
 (A) 16 East, 3-50. • (s) 1 Salk. 248. 
 
 (t) Post, vol. iii. It) Thomp. Ent. 304; post, voL iii.. Com. 
 
 (k) 1 East, 64; Selw. N. P. 1130, Dig. Pleader, 3 M. 36. 
 
 (I) 8 Co. 67; 7 Price, 670; Tidd, 6th edit. (u) Ante, 588, and notes. 
 683. . 
 
 Vol. I. 78 
 
§98 POEMS AND PARTS OF 
 
 11. OP THE POKMS AND PABTS OP REPLICATIONS. 
 
 TTTLB, &c. A replication before the recent pleading rules, was usually entitled in 
 the Court and of the term of which it was pleaded ; and the names of the 
 plaintiff and defendant were stated in the margin, thus, " A.. B. against 
 C. t)." (x). Where any new matter was stated in the replication which 
 occurred pending the suit, and after the last pleading, as the death of one 
 of several plaintiffs or defendants between the plea and replication; this 
 was to be suggested and a special imparlance was then stated at the head 
 of the replication {y). 
 
 Since the Reg. G-en. Hil. T. 4 W. 4, f the same practice as to the title 
 of the Court still continues, although no advantage could be taken of the 
 omission. With respect to the date thei Reg. Gen. Hil. T. 4 W. 4, reg. 
 1, is express, that every pleading shall be entitled of the day of the month 
 and year, when the same was pleaded, unless otherwise specially ordered 
 by the Court, or a Judge. The names of the parties should be accurately 
 stated in the margin as heretofore. Imparlances we have seen have been 
 abolished («), but the statement of recent deaths or other events that have 
 occurred within eight days may still be suggested (2^). 
 
 The Reg. Gen. Hil. T. 4 W. 4, reg. 9, orders, " nor shall it be neces- 
 sary in any replication or subsequent pleading intended to be pleaded;in 
 maintenance of the whole action, to use any allegation of pracludi nan, 
 or to the effect, or any prayer of judgment ; and all pleas, replications, 
 and subsequent pleadings, pleaded without such formal parts as aforesaid, 
 shall be taken, unless otherwise expressed, as pleaded respectively in bar 
 
 [ *599 ] of the whole action, or in *maintenance of the whole action, provided that 
 nothing herein contained shall extend to the cases where an estoppel is 
 pleaded." The 19th reg. directs the forni of replication to a plea of pay- 
 ment of money into Court. The title of the Court, date, margin, com- 
 mencements and conclusions may be thus : — 
 
 In the King's Bench, [m " C. P." or " Exchequer of Pleas."] 
 
 Com. On the day of A. D. 1836. 
 
 mencement ^ ^' 7 -'-^^ plaintiff as to the said first plea of the defendant, and whereof he < hath put 
 
 andconclu- ^S'- i himself upon the country, doth the like. 
 
 sion, with *-'■ ^' ^ 
 
 similiter. 
 
 The conclusion to a special plea may be to the coimtry, as thus, " and 
 this the plaintiff prays may be inquired of by the country, &c." or with a 
 verification thus, '• and this the plaintiff is ready to verify." If the repli- 
 cation be to a plea affecting only a part of the cause of action, the form 
 usually begins and concludes precludi non, and prayer of judgment, as be- 
 fore the recent rules (a). 
 
 When the plea concludes to the country, the replication consists either 
 of the common or special similiter. The first is " and the plaintiff doth the 
 like ;" and the latter is thus, " and the plaintiff, and as to the said pleas 
 of the defendant, by him first and secondly above pleaded, and whereof 
 
 (i) See forms, posi, vol. iii. the title of a plea will in general here apply, 
 
 iy) Id. see ante, 456, 549. 
 
 (z) Heg. Gen. Hil. T. 4 W. 4, reg. 2, and (a) See the several forms, post, vol. iii- 
 
 ante, 473. The observations with respect to 
 
 t See American Editor's Preface. 
 
REPLICATIONS TO A SPECIAL PLEA. 599 
 
 V 
 
 he hath put himself upon the country, doth the like ;" and the plaintiff lo ■* ^^^ 
 must join issue or demur, and cannot reply any new matter when a plea Jq"™^!^ 
 concludes to the country (6). If in the similiter there be any mistake in ootmiET. 
 the names, the defendant may demur ; but where to an issue tendered by 
 the plaintiff, the defendant has added the similiter in the plaintiff's name, 
 this defect will be aided after verdict, there being an af&rmative and nega- 
 tive before. It was once held that the want of a similiter was not aided 
 by o.r amenable after verdict ; and where in the similiter the defendant's 
 name was put instead of the plaintiff 's the chief justice -dismissed the 
 jury, conceiving he had no commission to try the issue ; ,'but in a subse- 
 quent case, where a similar mistake was made, the Court, after trial of 
 the issue, refused to arrest the judgment, and at length the similiter was 
 allowed to be inserted after verdict, instead of the " &c." upon three 
 grounds : first, thai it was an omission of the clerk ; secondly, that it was 
 implied in the " &c." added to the last pleading ; and thirdly, that by 
 amending, the Court only made that right which the defendant himself un- 
 derstood to be so by his going down to trial (c). So where, to a rejoin- 
 der concluding with a verification, *the plaintiff, instead of taking issue [*660 3 
 and concluding to the country, added the similiter, and took down the 
 record to trial, and the defendant obtained a verdict, the Court would 
 not. grant a new trial, but amended the record (d). And where the parties 
 had gone down to trial upon a plea which had not been traversed, after ver- 
 dict for the plaintiff, he was permitted to amend by adding a traverse (e) ; 
 and in a qui tam action, the Court of King's Bench, after verdict, direct- 
 ed a similiter to be entered, though the objection was taken on the trial (/). 
 But in the Common Pleas it should seem otherwise, and the want of a 
 similiter is a ground of error (g"), or for setting aside the verdict (A). 
 But the Court will, when the justice of the case requires, amend the rec- 
 ord by the insertion of a similiter (i) (1). 
 
 BECORD, OB 
 SIATUfO A 
 
 We have seen that a plea oinul tiel record concludes with an averment to a pbba 
 and prayer of judgment si actio, &c. except in the case of a judgment in °^^^„™' 
 Ireland, <fec. (k) (2). If the plea deny a record in the same Court, the '"'"'"'" 
 replication thereto should re-assert the existence of the record, and con- 
 clude with a prayer that it may be viewed and inspected by the Court, 
 and a day is given to the parties (/) (3) ; and when the record of another 
 
 (b) Com. Dig. Pleader, K. 1; Co. Lit. 126 P. 712, 713; 3 Dow. Rep. 1. 
 a; Hob. 271; 2 M. & Sel. 519. (e) 5 Taunt. 164; 3 Dowl. 698. 
 
 (c) Cowp. 407; 2 Saund. 319, note 6; (/) 1 Stark. 400; S. C. in 2 Chit. R. 25; 
 Com. Dig. Pleader, B. 11, 12, &o. ; 1 Stra. and 6 M. & Sel. 50. 
 651; 1 Stark. 400; Tidd, 9tli ed. 924; 9 (g) 2 Moore, 215. 
 Moore, 741; 2 Bing. 384, S. C; 3 Dowl. (A) 3 B. & B. 1; 6 Moore, 51, S. C. 
 700. (j) 2 Bing. 384; 9 Moore, 741, S.C. 
 
 .(A) X New Rep. 28. As to the similiter see (k) 2 Wils. 114; 5 East, 473; ante, 485. 
 
 fully Seabroak «. Cave, 2 Dowl. 691; Rawlin- {I) Post, vol. iii.; 2 Lutw. 1514; Heme, 
 
 son V. Rountre, 6 Car. & P. 551; Clarke u. 278; Barnes, 336. 
 Nicholson, 1 Gale, 21; 3 Dowl. 454; 6 Car. & 
 
 (1) See Shaw v. Redmond, 11 Serg. & Rawle, 32. An issue of fact is not complete without 
 the similiter, and a refusal by a plaintiff to add the similiter will be a discontinuance of the 
 action. Earle «. Hall, 22 Pick. 102. 
 
 (2) Or of the Circuit Court of the United Statea. Baldwin v. Hall, 17 Johns. 272. 
 (8) Share v. Becker, 8 Serg. & Rawle, 293. ' 
 
600 FORM AND PARTS OF 
 
 TO A PLEA Courtis denied, the replication re-asserts it, and a day is given to the 
 ojNCLTm. plaintiff to bring it in (m). When the defendant has pleaded a record of 
 sTATiHoT the same Court, the replication denying it concludes with a Ycrification, 
 EEooBD. and a day is given to the parties to hear judgment (n) ; and where the 
 defendant has pleaded a record of another Court, the replication of nul 
 tiel record may either conclude hy giving the defendant a day to bring it 
 in (o), or with an averment and prayer of the debt and damages, &c. (p). 
 In the former case the issue is complete upon the replication (g) ; but in 
 the latter, there should be a rejoinder re-asserting the existence of the record 
 (r) ; and therefore the first form, being the most concise, is obviously pref- 
 erable. Where matter of fact, as well as matter of record, is properly 
 put in issue, the replication may conclude to the country (s) (1). 
 
 TO A SPE- 
 CIAL PLEA 
 
 [ *601 J *The replication to a plea containing neio matter, and therefore of ne- 
 cessity so framed as to afford the defendant an opportunity of answering it, 
 ^g''"*' maybe considered with reference, 1st, to the commencement; 2dly, the 
 T0A3PE- body; and, 3dly, its cowc/msiow. The co»i?MeMcemen< of the replication in 
 ciAL PLEA sHcJi case professes wholly to deny the effect of the defendant's plea ; the 
 iNo'wiTH A ^°^y shows the ground on which that denial is founded ; and the conclusion 
 vEEiFioA- is either to the country or to the record, if it merely deny the plea; but 
 TioN. if the replication contain new matter, it should conclude with ^verification, 
 and a prayer that judgment may be awarded in the plaintiff's favor (ty 
 
 I. THE COM- igt_ The Commencement of the replication, when matter of Estoppel 
 ^^^_ is to be replied, after stating the title of the Court and term, or since Reg. 
 Gen. Hil. T. 4 W. 4. reg. 1, f the day of the month and year, and the 
 names of the parties in the margin, is thus : " And the plaintiff saith, that 
 the defendant ought not to be admitted in his said plea to aver, that, <fee." 
 (^stating fully the matter alleged in the plea, which the replication afterwards-i 
 shows the defendant is estopped from relying on") " because he saith that, 
 <fec." {stating the matter of estoppel) (u). 
 
 Of the The Reg. Gen. Hil. T. 4 W. 4, reg. 9, seems still to require the same 
 
 el^^non, formal commencement as regards Estoppel as prevailed heretofore. 
 
 4-c. When the replication denied or confessed and avoided the plea, it com- 
 
 menced with an allegation, technically termed the precludi non, and which 
 was as follows : " And A. B. as to the said plea of C. D. by him second- 
 ly above pleaded, said that he A. B. by reason of any thing by C. D. in 
 that plea alleged, ought not to be barred from having or maintaining his 
 aforesaid action thereof against C. D. ; because he says, that, &c." (z). 
 
 (m) Post, Tol. iii.; 2 Salk. 566; 3 Bla. (<) 2 New Rep. 363. 
 
 Com. 380, 331. (u) See the form, post, vol. iii.; 3 East, 
 
 (n) Pos«, vol. iii. See the practice, Tidd, 349; Willes, 10; Garth. 66, 67; 1 Saund. 
 
 9th ed. 742. 257, 276, n. 1; 825 n. 1; 6 T. R. 62; post, 
 
 (o) See post, vol. iii. 603. 
 
 (p) 2 Wils. 113; Barnes, 161. {x) 2 Wils. 42. If the plea be in barof the 
 
 (q) 2 B. & P. 302. /ur/A«r maintenance of the suit, the replication 
 
 (r) Tidd, 9th ed. 748. should be framed accordingly, 4 East, 502, 
 
 (s) Sayer, 208, 209; see 1 B. & Aid. 153. 603. 
 
 (1) Share v. Becker, 8 Serg. & Rawle, 242; Peter v. Stafford, 5ob. 244. 
 t See Ameri<su> Editor's Prefitce. 
 
REPLICATIONS TO A SPECIAL PLEA. 601 
 
 When the body of the replicatioa only contained an answer to a pa/rt of i. the com- 
 the plea, the commencement then was to recite or specify the part intended ^^^°j' 
 to be answered ; for, should the commencement assume to answer the whole 
 plea, but the body contained an answer to part only, the whole replication 
 was insufficient, and so vice versa (if). In this case the form ran thus: 
 " And A. B. as to so much of the said plea of 0. D. by him secondly 
 above pleaded, as relates to the said supposed recognizance in that *plea [ *602 j 
 mentioned, (according to the fact,) says, that he ought not to be barred 
 from having or m'aintaining his aforesaid action thereof against him, because 
 he says, that, &c." (^slating the answer to such part of the plea, and with 
 the proper conclusion thereto.') The answer to the other part of the plea • 
 commenced as follows : " And A. B. as to the residue of the said plea, 
 saith, precludi non, &c. because," &c. (3). On the other hand, when the 
 matter to be replied was equally an answer to several pleas, it was proper, 
 in order to avoid expense, to answer all the pleas in one replication (a) ; 
 and the replication de injuriis, suis propriis, absque tali causa to two sev- 
 eral justifications by different defendants in the same action, was held suffi- 
 cient (6) : in these cases the commencement should apply to and profess to 
 answer all the pleas. So, where to a plea by an executor of judgments 
 outstanding, the plaintiff replies that each judgment is fraudulent, &c. he 
 may conclude his replication with one verification, or with a separate ver- 
 ification to an answer to each of the judgments ; the former is perhaps the 
 better course (c). 
 
 " The above form of precludi non is still admissible and sometime use- 
 ful ; but the Reg. Gen. Hil. T. 4 W. 4,f expressly declares, " nor shall 
 it be necessary, in any replication or subsequent pleading intended to be 
 pleaded in maintenance of the whole action, to use any allegation of pre- 
 cludi non, or to the like effect, or any prayer of judgment; and all pleas, 
 replications, and subsequent pleadings, pleaded without such formal parts 
 as aforesaid, shall be taken, unless otherwise expressed, as pleaded res- 
 pectively in bar of the whole action ; provided that nothing herein con- 
 tained shall extend to cases where an estoppel is pleaded." 
 
 It is first to be observed, that the Eeg. Gen. Hil. T. 4 W. 4,t reg. 8, ir. the 
 directs that no venue shall be stated in the body of the declaration, or in „ ^'"'^■ 
 any subsequent pleading ; but provides, that in ca"§es where local descrip- to be stat- 
 tion is now required, such local description shall be given. ed. 
 
 With respect to the body of the replication, we have seen that it con- 
 tains'^, either, 1st, matter of estoppel ; 2dly, a traverse or denial of the 
 plea ; 3dly, a confession and avoidance of it ; or, 4thly, in the case of an 
 evasive plea, a new assignment. We will consider each of these in the 
 above order. 
 
 (j) 1 Saund. 28. n. 3, 877, 378; Com. Dig. 124; 1 Sid. 39; Yelv, 65; Com. Dig. Pleader, 
 Pleader, F. 25; Lutw. 241; 2 B. & P. 427; F. 4 and 24; Summary Treat, on Pleading, 
 Summary on Pleading, 72; 4 East, 503, 504. 71, 72; sed vide 1 Leon. 139, as to a demur- 
 See farther as to the qualities of a replication, rer. 
 most. (A) Id.; 1 Leon. 124; Cro. Eliz. 139; 1 
 
 (a) 1 Sannd. 837, 338; see the forms, Sid. 39. 
 jjosi, vol. iii.; Lutw. 241; Com. Dig. Pleader, (c) 1 Saund. 338, note 5; 1 Salt. 298, 
 
 F. 4. 312. 
 
 (a) See the form, 8 Wentw. 6; 1 Leon. 
 
 t See Amerioan Editor's Pre&«e. 
 
•603 POEM AND, PARTS OP 
 
 II. THE *Whea the matter whicli operates as an estoppel (e) appears on tlie face 
 
 ^°"^' of the declaration, the plaintiff may demur to a plea by which the defend- 
 
 ^^f- ^**°P' ant attempts to set up such matter as a defence (/). Thus, if in cove- 
 
 ^^ nant on a lease by the lessor, the defendant plead nil habuit intenementis, 
 
 that is, in effect, that the lessor had no title to or interest in the land, the 
 
 plea will be defective, because the matter of estoppel, viz. the demise by 
 
 deed and holding thereby, appears in the declaration (g-). But where an 
 
 action upon a lease is brought by a party who claims derivatively from the 
 
 lessor, in which case the declaration must show the lessor's title and the 
 
 derivative title of the plaintiff, it is competent to the defendant to deny 
 
 that the lessor had the particular title alleged in the declaration (Ji). 
 
 If the matter of estoppel do not appear from the anterior pleading, the 
 replication must expressly show such matter and rely thereon, and there 
 must be an appropriate commencement and conclusion to the replication ; 
 or by replying an estoppel without relying upon it, the advantage of the 
 estoppel as such may often be lost (i). As where in debt for rent on a de- 
 mise by indenture by one who has nothing in the land, (the declaration not 
 showing the deed (A;),) the defendant pleads nil habuit in tenementis, if the 
 plaintiff reply that he had a sufficient estate to make the demise, he loses 
 the benefit of the estoppel ; but if he reply that the lease was made by in- 
 denture, and conclude unde petit judicium, if the defendant shall be admit- 
 ted to plead the plea against his own acceptance of the lease by indenture, 
 the defendant shall be estopped (/). Where the demise is not by deed 
 there can be no pleading- by way of estoppel, especially, as the declaration 
 may by virtue of the statute 11 Geo. 2, c. 19, be in general form for use 
 and occupation : but it must be remembered that in general, even in such 
 case, the party to whom the premises were let, or his assignee, shall not 
 bo permitted to dispute the title of the landlord by whom the former was 
 let into possession, or the title of assignee of such lessor (jm) (-1). So, 
 [ *604 ] if in a declaration in debt on bond, *not showing the condition, it be re- 
 cited in the condition that a fact exists, and the obligor attempt to dispute 
 such fact, the plaintiff may reply, setting out the condition and relying on 
 
 (d) See express regulation as to matter of ty Term, 1828, 7 Law Journal, 18, K. B.; 
 estoppel, Keg. Gen. Hil. T. 4 W. 4, reg. 9. and Whitton v. Peacock, in C. P., Sd June, 
 
 (e) As to estoppel in general, see Co. Lit. 1835, Shearman, attorney; anie, 364; 4 Bing. 
 2.52a; Com. Dig. Estoppel; Steph. 2d ed. 238, 403; 4 Moore, 5. 
 
 260. As estoppel arises either, 1st, From mat- (i) 1 Saund. 32.5 a, n. 4; and see Jervis, 
 
 ter of record; 2dly, By deed ^ or, 3dly, By Reg. Gen. Hil. T. 4 W. 4, reg. 9. 
 matter in pais, id. In a pZca,anie, 469. (k) Seeanie, 364. 
 
 (/) 1 Saund. 325 a, note 4; 2 Stra. 817; (I) 1 Saund. 325 a, note 4; Ld. Kaym. 
 
 7 T. K. 637; 8 Id. 487; Willes, 13, 2 Taunt. 1051; Salk. 277; 6 T. R. 62. 
 278. H (m) See 5 T. R. 4; 1 B. & Aid. 50; "4 M. 
 
 (g-) 1 Saund. 325 a, note 4; 2 Id. 418, & Sel. 347; 2 Taunt. 278; 1 Bing. 147; 2 
 
 note 1. Campb. 11. But the termination of the land- 
 
 (h) 1 Saund. 418, n. 1; avte, 487; see lord's title after the letting maybe shown, 
 
 Steph. 2d ed. 217. In covenant by the assignee when, 2 Saund. 418, n. 1; 4 T. R. 682; 3 
 
 of a lessor, if the declaration allege that the M. & Sel. 516; see further 2 Bing. 54; 9 
 
 lessor was seized in fee, and conveyed by lease Moore, 130, S. C. ; 4 Bing. 348, 366; 9 B. & 
 
 and release, the defendant may traverse the Ores. 245. 
 seizin in fee. Seymour v. Franco, after Trini- 
 
 (1) In an action of debt for rent reserved by indenture, the plaintiff may state in his deolar- 
 tion the substance of the demise, and is not bound to declare upon the deed; and if the defend- 
 ant to such a declaration pleads nil habuit in tenementis, actio non accreoit infra sex annos or 
 any plea which is prima facia a good plea, no estoppel appearing on the record, the plaintiff 
 may reply, that the demise was by indenture, and suob a replloation will not be a departure. 
 Davis 17. Shoemaker, 1 Rawle, 185. 
 
REPLICATIONS TO A SPECIAL PLEA. 604 
 
 the estoppel («). Where the matter in question has been tried upon a "• thb 
 particular issue, between the same parties in a former suit, and there has igt^E^Top- 
 been a finding thereon by the jury, such finding operates as an estoppel by pel." 
 matter of record, provided it be specially pleaded and relied upon as such 
 
 As a species of estoppel it may be proper here to notice, that if in debt 
 on a bond, conditioned for the performance of covenants, the defendant 
 falsely plead that there were no covenants in the indenture on his part, the 
 plaintiff may reply, setting out the indenture containing such covenants, 
 and demur (jo). A party who has executed a deed is not estopped from 
 denying that fact, and may plead non est factum ; but he cannot, (admit- 
 ting his deed,) deny its operation or effect by a plea of non concessit, &c. 
 (2); as a stranger to the deed is permitted to do (q). 
 
 The Eeg. Gen. Hil. T. 4 W. 4, reg. 9, expressly provides " that nothing Exceptions 
 herein contained shall extend to cases where an estoppel is pleaded ;" so jf ^*S'., 
 that the above regulations in pleading estoppel still continue in force. t.™'w.' 4, 
 
 The second description of replication is that which neither concludes reg. 9, as 
 the defendant by matter of estoppel, nor confesses and avoids the plea, but l^f*'"^^*'' 
 traverses or denies the truth thereof , either in part or in whole (r). It niaf'of The 
 will be proper to consider the nature of these replications under the fol- plea- 
 lowing heads : — 
 
 1st. A denial of the v)hole plea, or de injuria, &c. l^t- Of ^e 
 
 1st. When allowed, or not proper, or not advisable. "'*"'* P'**' 
 2dly. The form of such replication. 
 2dly. A denial of only part of the plea. 
 1st. Of what fact. 
 2dly. The mode of such special denial. 
 3dly. A denial, and stating a particular breach, &c. 
 There is no real distinction between traverses and denials ; they are the 
 same in substance (s). Any pleading by which the truth of the opponent's 
 allegation is disputed is termed a pleading by way of traverse or denial 
 Traverses are of two kind, general or special. *The general traverses or [ *605 1 
 denials were the general issue {t), and the replication de injuria sua pro- 
 pria, and such pleadings as simply deny a particular fact pleaded by the 
 adversary ; the special traverse in its strict legal sense imports the tech- 
 nical and now unusual formal traverse, with an inducement and absque hoc, 
 which will be presently explained (u). ' 
 
 (n) 1 Saund. 325 a, note 4, and 215, note (p) 1 Saund. 316, 317, 318, and 319. 
 2; 6 T. R. 62; Willes, 9; S B. & Aid. 682; 1 (g) See Steph. 2d ed, 239, 237; 2 Taunt. 
 
 B. & C.704. 278; 2 Balstr. 55. 
 
 (0) 3 East, 346; M'Clel. & Y. 509; 2 Bi & (r) See in general. Com. Dig. Pleader, G.; 
 Aid. 662. Ahd see the precedents in trespass Saund. Index "TroDerse." Summary Treat, 
 for mesne profits, where to a plea of title the on Pleading, 75 to 80; Steph. 2d ed. V85 to 
 recovery in ejectment was replied, 2 Rich; C. 231. 
 
 P. 444. Any confession or admission, express (s)Willes, 224. 
 
 or implied upon the pleadings, operates as an (i) But since the Reg. Gen. Hil, T. 4 W. 4, 
 
 estoppel in a subsequent suit between the same there is no general issue, i. e. denying every 
 
 parties as to the matter admitted, Steph. 238. allegation in a declaration. 
 
 As to the effect of a ^^rotesMf on to prevent this, (u) 1 Saund. 103, n.; Stephen, 2d ed. 
 
 see post. 305. 
 
 (1) Where the tenant in a writ of entry, demanding a freehold, pleaded the general issue, 
 it was held that he had thereby admitted in the record, that he was tenant of the freehold; and 
 was therefore estopped from proving that be was tenant at will (mly. Kelleran v. Brown, 4 
 1M fliSS 4.4 3 
 
 (2) Stow V. Wise, 7 Conn. 214. 
 
605 POBMS AND PAET8 OP 
 
 II. THE It is the first object of pleading to bring tbe point in dispute between 
 2d\^°^^' ^^® parties, at as early a stage of the cause as possible, to an issue or point 
 niafof the which is not muUifarious or complex (v) ; and therefore the issue must in 
 plea. general be single (x) (1). But this single point may consist of several facts 
 
 ^^hP^i^^ if they be dependent and connected {y} (2) ; and therefore wherein tres- 
 u) ocpea. ^^^^ ^j^^ defendant justified under a right of common, and the plaintiff in 
 his replication traversed, " that the cattle were the defendant's own cattle, 
 and that they were levant and couchant upon the premises, and commona- 
 ble cattle ;" the replication was on special demurrer, assigning for a cause 
 that it was multifarious, holden to be good (z). So, according to the 
 first resolution in Orogate's case, to a justification under proceedings in the 
 Admiralty Court, Hundred Court, or County Court, or any other Court 
 which is not of record, de injuria sua propria is good ; all being matter of 
 fact and making but one cause of justification (a). And in a late case, 
 where in an action for maliciously suing out a commission of bankruptcy 
 against the plaintiff, the defendant pleaded that the plaintiff" being a trad- 
 er, and being indebted to the defendant in the sum of £100 became bank- 
 rupt, whereupon the defendant sued out the commission ; and the plaintiff 
 replied de injuria sua propria, on demurrer, assigning for cause that the 
 plaintiff by his replication had attempted to put in issue the distinct facts, 
 the act of bankruptcy, the trading, and the petitioning creditor's debt ; 
 it was held that these three facts constituted but one entire proposition, 
 and that the replication was therefore good (b). Indeed, in some cases the 
 traverse or denial must consist of more than one fact, for it is another 
 rule that in a traverse the plaintiff cannot narrow the title set up by the 
 defendant (c). And the reason why the general replication de injuria, 
 which will presently be fully explained, cannot in many instances be 
 adopted, is not because it puts two or three things in issue (li). 
 [ *606 ] *In actions on contracts and in replevin, the replication usually denies 
 1st. Gene- the material facts, or one of the facts alleged in the plea, with particularity 
 as bv^de"' and in express words (e). But we have seen that de injuria may be prop- 
 injuria, er in assumpsit, case, covenant, or replevin (/). If a replication deny 
 ■when al- the whole of a plea, yet proof of so much as in justice entitles plaintiff to 
 noT^proper ^'^cover will Suffice (g-). In trespass, and in actions on the case for Slander, 
 or advisa- the replication containing a general denial of the whole plea sometimes oc- 
 tie. curs, and is termed a replication de injuria sua propria absque tali causa, 
 
 {v) Willes, 204, 54; 1 East, 217; 1 Burr, ing the whole of a plea is bad, see Moore v. 
 
 820; Summary Treat, on Pleading, 77. Bouloott, 6 Moore & Soott, 122; 8 Dowl. 145, 
 
 (x) Id. Ibid. S. C. De injuria to a plea, justifying an ex- 
 
 {y) 1 Burr. 320; Willes, 100, n; c. ; Bul.N. pulsion from a house as servant of lawful oo- 
 
 P. 98; 8 Co. 67 b; 2 B. & C. 908. oupier, is good, 1 Crom. & M. 197; and is good 
 
 (2) .1 Burr. 320; Willes, 100, n. 0.; Bui. as a plea id bar to an avowry for poor rate, 1 
 
 N. P. 93; 8 Co. 67 b; and see 1 Crom. & M. Crom. & M. 500. 
 600. (c) In replevin, the replication de injuria 
 
 (a) 8 Co. 67 b; Willes, 101, note C; it was said, never occurs. Finch. Law, 895; 
 
 (i) 2 B. & C. 908; 4 D. & R. 879, S. C; 1 B. & P. 70; but see 1 Crom. & M. 197, 
 
 vide 4 B. & Cres. SbS. 500. 
 
 (c) 4 T. K. 157; Summary Treat, on Plead- (/) Ante, 583, 584. 
 
 ing, 78. (g) See late instance in Bradley v. Miluea, 
 
 (d) 1 B. & P. 80; 2 Saund. 295 a, note; 1 1 Bing; N. C. 664. 
 Bing. N. C. 644. When a replication travers- 
 
 (1) Vide Rogers ». Burk, 10 Johns. 400. 
 
 (2) Vide Strong v. Smith, 8 Gaines, 160. 
 
REPLICATIONS TO A SPECIAL PLEA. 606 
 
 or " de son tort demesne sans tiel cause ;" (A) or if a part of the plea be n> ™^ 
 admitted, then it is termed de injuria absque residua causa, thereby deny- 2ciw"'D"e- 
 ing all but the admitted fact or facts. This replication tenders issue upon nialof the 
 and compels the defendant to prove every material allegation in his plea P'ea- 
 (0, and therefore it is frequently advantageous to the plaintiff to adopt it, ^ftiz^piteT 
 when by the rules of pleading it is perfliitted (1). 
 
 In general, when the defendant's plea mtrespassov case consists merely Astode 
 of matter of excuse, and not of matter of right or interest inconsistent with *'»'"'■'''• 
 or affecting the right, the infringement of which is complained of in the 
 declaration, whether it relate to the person, or to personal or real proper- 
 ty, the general replication de injuria is sufficient (A). And in these oases^ 
 when a title is stated merely as inducement to the defence, the plaintiff 
 need not answer, or particularly deny it, because it is merely collateral to 
 the matter in dispute : but there is a material difference between these 
 cases and the instances in which the plaintiff makes title by his declaration 
 to any thing, and the defendant in his plea denies the title, or claims an 
 interest in the subject-matter ; for then the plaintiff must reply specially 
 (^). Thus, in an action for an assault, if the defendant plead son assault 
 demesne, or that lie arrested the plaintiff upon hue and cry levied (m) ; or 
 the plea be moderate correction of a servant for his neglect of service, the 
 general replication de injuria is sufficient, if the plea be untrue (n). And 
 though such excuse for the personal injury may be stated in the plea to 
 depend on the possession of land or personal property ; as if the defendant 
 plead that the plaintiff entered upon his possession, and that therefore the 
 defendant molliter manus Hmposuit to remove him (o) ; or if the plea be C *^^'^ ] 
 that the defendant was seized, &c. as rector, and that the tithes were sev- 
 ered, and that the plaintiff endeavored to carry them away, and that the 
 defendant, in defence of his tithes, molliter manus imposuit, &c.; yet in 
 these cases the general replication is sufficient, and the plaintiff, need not 
 answer the defendant's title ; because the plaintiff by his action claims 
 nothing in the soil or corn, but only damages for the battery, which is 
 merely collateral to the title, and which is stated merely as indiicerhent (jo). 
 However, in a recent case, it seems to have been considered that where the 
 excuse arises, even in part, out of the seisin in fee of another, then de in- 
 juria is sufficient (<?). So in trespass to personal property, if the defendant 
 merely justify the chasing cattle or removing goods from land of which he 
 yras possessed, the general replication will suffice (r). And in trespass to 
 real property, if the defendant in his plea do not claim any interest therfein, 
 
 (h) Com. Dig. Pleader, F. 18; Crogate's (0 Telve. 157; Cro. Jao. 225; Willes, 102, 
 
 case, 8 Co. 67. Most of the points relating to 103; Com. Big. Pleader, F, 20, 21. 
 
 this replication, are collected in Crogate's Case, (m) 8 Co. 67 a; 1 Saund. 244 a, note 7. 
 
 8 Co. 67; Cockrell v. Armstrong, Willes, 99; (n) Gilb. C. P. 154; Willes, 102. 
 
 Doc. Plao. vol. i. 113 to 115; and Com. Dig. (o) Latch. 128, 221; Com. Dig. Plead. P. 
 
 Pleader, E. 18, &c.; 1 B. & P. 79, 80; Finch. 18; 12 Mod. 582; ante, 594, n. (y). 
 
 Law, 395, 396; 2 Saund. 395, n. 1; 1 Saund. (p) Yelve. 157; Cro. Jac. 224, 225; Com. 
 
 244 c. n. 7; Arohb. 238. Dig. Pleader, F. 18; 2 Saund. 295, n. 1; 1 
 
 (i) Com. Dig. Pleader, F. 18 to 24; 8 Co. Crom. & M. 200. 
 
 67 a; Willes, 100. (?) Jlnte,60&; IB. & P. 80; and see Will6s, 
 
 (k) 8 Co. 67, a; Com. Dig. Pleader, F. 18, 102, 103; 12 Mod. 382; Cro. EUz. 539, 540; 
 
 &c.; Doc. PI. 113 to 115; 1 B. & P. 80; 1 Cro. Jao. 598; 7 Price, 670. 
 
 East,212, 214', 218; 2 Saund. 295, n. 1; 7 (r) Ante, bM, 595. 
 Price, 670. 
 
 (1) See Coburn ». Hopkins, 4 Wendell, 577; Lytle ti. Lee, 5 Johns. 112; Griswold v. Sedg- 
 wick, 1 Wendell, 126; Brown v. Bennett, 5 Cowen, 181; Stickle ». Richmond, 1 Hill, 77. 
 
 Vol. I. 79 
 
607 FORMS AND PARTS OF 
 
 n. THE or easement over the same, the replication de injuria is sufficient ; as if in 
 2d?°"D trespass for pulling down a building, the defendant, without claiming any 
 niafof ^e interest therein, plead that he removed it as being a nuisance on his land, 
 plea. this general replication will suffice (s). So, if in trespass to land with cat- 
 
 ^^LF^l^^ tie, the defendant plead that the plaintiff's fences were out of repair, where- 
 w epea. ^^ ^^^ defendant's cattle escaped 'into the plaintiff's close, this plea con- 
 sisting merely of matter of excuse, and claiming no interest in the land, 
 may, it is said, be answered by the general replication Q). And though it 
 is stated as a general rule, that where the defence rests upon an authori- 
 ty of law the replication must be special («), yet this, as a general position, 
 is inaccurate (a;). For if the defendant justify, that he, as a constable, 
 without a warrant took the plaintiff for a breach of the peace ; or as a va- 
 grant or lunatic (2/) ; or under a public act of parliament ; or under a right 
 for all persons given by the common law (sr) ; or if iu trespass for false im- 
 prisonment, the defendant justify by process out of the Admiralty, Hun- 
 dred, or County Court, or other court not of record, the general replica- 
 tion is sufficient ; all being matter of fact, and making but one cause (a). 
 The instance of an entry to view waste proceeds on a special reason (Z») ; 
 for suppose the lessor was seized in fee, such seisin would be involved in 
 the issue (&). 
 [ *608 ] If in any case the defendant justified under the warrant of a justice *of 
 the peace (c), or as servant of another, or Z/^ his command, the replication 
 must have been special, and admit or protest the warrant or commandment, 
 and reply de injuria absque residua causa, or take issue simply on the war- 
 When de rant or commandment {d). However in a late case it was held that de in- 
 injuria is jj^^id -^^^s a good replication to a plea justifying as servant of an occupier 
 er, but a' ^^ turning out the plaintiff from the house (e), and de injuria is a good 
 qualified plea in bar to an avowry for a poor-rate (/). So, " when by the defend- 
 replication ant's plea any authority or ^ower is mediately or immediately derived from 
 required, the plaintiff, there, although no interest be claimed, the plaintiff ought to 
 answer it specially, and shall not reply de injuria generally ;" (§•) as if he 
 justified by virtue of the leave, or license, or command of the plaintiff (A). 
 So when the defendant in his plea claims in his own right, or as lessee 
 or servant of another, any right to, or interest in, the person (i), p«rsonal 
 property (Jc), or real property (^), for a supposed injury to which the plain- 
 tiff has declared ; or any right of way (rri), common (n), or other easement, 
 
 (s) Summary Treat, on Pleading, 81, 82; 3 Bam. & Adol. 2. 
 
 ante. 594, 895. (g) 8 Co. 67, 68; 1 B. & P. 80; Com. Dig. 
 
 (0 Ante, 596, 1 Cr. & M. 500. Pleader, F. 22; 2 Saund. 295, n. 1; Stephen, 
 
 (u) 8 Co. 67 b. 2d ed. 204; Willes. 99. 
 
 (x) 15 Mod. 582. (Ji) Com'. Dig. Pleader, F. 22; Summary 
 
 (y) Com. Dig. Pleader, F. 18; 12 Mod. Treat, on Pleading, 83; Bro. Ab. De son iori, 
 
 682. pi. 30; Ld. Raym. 104, 105. However, to the 
 
 (a) 12 Mod. 580, 581 ; IB. & P. 77; Sum- common plea of license to a declaration in 
 
 mary Treat, on Pleading, 81, ace; Tidd, 9th trespass, it is usual to reply that defendant, of 
 
 edit. 684; and 8 Co. 67 b; contra. his own wrong, and without the supposed Il- 
 ia) Com. Dig. Pleader, F. 19; 12 Mod. 582; cense, committed, &c. see post, vol. iii.; 11 
 
 8 Co. 67 a; Doo. Plao. 114. East, 451. 
 
 (6) 12 Mod. 582. (i) Willes, 102. 
 
 (c) 12 Mod. 582, 583. (fr) Yelv, 157; Cro. Jao. 225; Cro. Eliz. 
 
 (d) Id.; 8 Co. 67 a, b; Lutw. 1459; Doc. 589. 
 
 Plac. 113, 114; 1 B. & P. 76; Com. Dig. (0 8 Co. 67 a; 1 E. & P. 79 c. 80; Willes, 
 
 Pleader, F.; WUles, 100, 101; 2 Saund. 295 52, 99, 101, 102; Doo. Plao. 114; Com. Dig. 
 
 b, n. 1 ; 2 Bro. Ab. De son tort Demesne, pi. Pleader, F. 21, &c. 
 
 13.15. (m) Id.; 1 B. & P. 79. 
 
 (e) Piggott V. Kemp, 1 Crom. & M. 197; (n) Id. 
 ante, 694, n. (y). 
 
REPLICATIONS TO A SPECIAL PLEA. 608 
 
 THE 
 BODY. 
 
 &c. (o) ; or rent issuing out of the land claimed in the declaration (p) ; «■ 
 or right to enter for a distress for rent (q) ; or if the plea contain matter ^™ 
 of record not stated merely as inducement (r) (1), and of which a jury ^f^fofthe 
 cannot be competent judges, as if the sheriff or his officer justify under piea. 
 process of a Court of record (s) ; or if the defendant justify under the 1st. Of the 
 warrant of a justice of the peace (<) ; or under a particular custom of a '*''''''' P'**' 
 manor (m) ; or in some cases by authority of law, as to view waste (x) : in 
 these cases the general replication de injuria is improper {y'). In such in- 
 stances the plaintiff must either deny the title, easement, warrant, &a. in 
 *particular («) ; or admitting, or in some cases protesting' (which in effect [ *609 ] 
 admits those matters (2/), must reply, that the defendant, of his own wrong, 
 and without the residue of the cause alleged by the defendant, committed" 
 the trespasses ; in which case it will not be incumbent on the defendant to 
 prove either of those matters so admitted or protested (z). Where mat- 
 ter of record is denied, the replication should be merely nul tiel record 
 ia) (2). 
 
 Thus, where in trespass for taking the plaintiff's servant, the defendant 
 pleaded that the father of the person taken held of the defendant by knight's 
 service and died seized, and that the person taken being under age the de- 
 fendant seised him as his ward, the general replication de injuria was held 
 insufficient, the plea claiming an interest in the person claimed by the plain- 
 tiff in his declaration (&). So, if in trespass for taking goods, trees, &c. 
 the defendant plead that he took them as tithe, or as a distress for rent, 
 or as damage feasant^ showing title thereto, the general replication will be 
 improper (c). But by the statute of sewers, and in the instance for dis- 
 tresses for poor-rates, exceptions are introduced ; and where in a justifi- 
 cation of taking cattle damage feasant, the defendant sets out a title and 
 does not rely merely on possession, the replication should be special (d). 
 Other instances have already been sufficiently enumerated. It also seems, 
 that though the plea claim no interest in the property mentioned in the plain- 
 tiff 's declaration, but merely contain matter of excuse, yet where such mat- 
 ter of excuse arises in part out of the seizin in fee of another, it is not ad- 
 visable to reply de injuria ; because that replication is only allowed where 
 in the plea an excuse is offered to personal injuries, and not even then if 
 it relate to any interest in land, which would make part of the issue (e) ; 
 
 (0) Id. Pleader, F. 20, &o.; 4 Bing. 729; 1 M. & P. 
 
 {p) 8 Co. 67 a; 1 B. & P. 76; Willea, 52; 723; S. C. 2 Y. & J. 804, 379. See the form. 
 
 Com. Dig. Pleader, F. 21; Hookers. Nye, 1 pos<, vol. iii. 
 Crom. & Eos. 258; 4 Tyr. 777. (2) Lutw. 1459. 
 
 ((f) 1 Crom. M. & Ros. 258; 4 Tyr. 777; {y) Post, 611. 
 aliier, as to a distress for poor-rate; 1 Crom. (z) 1 C. & J. 48. 
 
 & M. 500; 2 E. & Adol. 2. (a) 3 Lev. 243, 244; Lutw. 1459. 
 
 (r) Willes, 103; note a; Com. Dig. Plead. (A) Willes, 1Q2; Yelv. 158; 1 Brownl. 215; 
 
 F. 19, 20 ; 2 Leon. 81. Com. Dig. Pleader, P. 21. 
 
 (s) 8 Co. 67 a; Doo. Plao. 114; Com. Dig. (c) Ante, 594, 595, 607; Cro. Jao. 225; 
 
 Pleader, F. 20; Hardr. 6; 12 Mod. 580, 581, Telv: 157; Cro. Eliz. 589; Com. Dig. Pleader, 
 
 582. P. 21; 1 B. & P. 76; Willes, 62, 99. 
 
 (0 12 Mod. 582, 588 ; Doo. Plao. 113. (d) Ante, 607, 1 Lev. 307 ; Com. Dig. Plead- 
 
 (u) Com. Dig. Pleader, F. 20; Hob. 76; 3 er. 
 Lev. 49; 8 Co. 67 a; Willes, 202. (e) 1 B. & P. 80; .Willes, 102, 103; Cro. 
 
 {x) Co. 67 b; Com. Dig. Pleader, F. 23; Jao. 598; Lord Eaym. 640; 12 Mod. 582; 
 
 42 Mod. 582. Cro. Eliz. 539, 540; Yelv. 157, observed npou' 
 
 (y) See all the above oases, and 8 Co. 67. in Willes, 101; 2 Saund. 29^, n. 1; 7 Price, 
 
 1 B. & P. 79, 80; Doot. Plao. 114; Com. Dig. 670. 
 
 (1) See Allen v. Crofoot, 7 Cow. 46; Qriswold w, Sedgwick, 1 Wend. 130; Coburn v. Hopr 
 kins, 4 lb. 678. 
 
 (2) See Green v. Oyerlngton, 16 Johns. 65. 
 
609 FORMS AND PARTS OF 
 
 u. THE ttiere being a distinctioa in this respect between a plea relying merely on 
 BODY, possession as inducement, and where an interest is pleaded by way of 
 ^f-„?the title (/). 
 
 plea. There are also many cases in which, though the replication de injuria 
 
 1st. Of the might not be objectionable upon demurrer, still it will not be proper to 
 w ole p ea. ^^^^^ j^-^ ^^^ j^ ^^j ^^ necessary in effect to confess and avoid the plea. 
 Thus, if in trespass for an assault the defendant plead son assault demesne 
 and the plaintiff did in fact commit the first assault, but can justify it as 
 having occurred in defence of his house, &c. it would be improper to use 
 the traverse de injuria, 8fc. and the plaintiff should reply his possession of 
 [ *610 ] the house, and defendant's *entry and refusal to quit, &c. (g-). And in an 
 action for false imprisonment, where the defendant justifies the commit- 
 ment as a magistrate for a bailable offence, in consequence of an informa- 
 tion upon oath, the plaintiff, under the general replication de injuria sua 
 propria, &c. cannot give in evidence a tender and refusal of bail, but ought 
 to reply that matter specially (Ji). But where in trespass for breaking and 
 entering the plaintiff's ship, and seizing and converting his goods, the de- 
 fendants justified under a writ of fieri facias, to which the plaintiff replied 
 de injuria sua propria absque residua causa, and new assigned that the de- 
 fendants entered the ship and took the goods for other purposes than those 
 mentioned in the plea; — it was held, that it was competent to the judge to 
 leave it to the jury to say whether the goods were bona fide taken under the 
 writ, or whether the execution was resorted to as a color for taking them 
 to evade payment of freight, to which they would have been liable had the 
 defendants accepted them under the bill of lading, and not to effect a levy 
 by virtue of the writ (i). In many cases, where it may not be absolutely 
 necessary to reply specially, it may be advisable so to do in order to nar- 
 row the plaintiff's evidence, and to compel the defendant to admit a part 
 of his title (A;). 
 Form of Where de injuria is improperly replied, the defendant may demur gen- 
 general de- erally, but the defect will be aided after verdict (V). 
 
 Dial, dc 171- •" ^ ' 
 
 juria, ^c. 
 
 In point of form, the general replication de injuria or de son tort demesne 
 
 would be defective, unless the words absque tali causa be added, though 
 the omission will be aided by verdict (m) . The usual language of this rep- 
 lication in trespass is "prepludi non," because he says, that the defendant 
 at the said times when, <fec. of his own wrong a,nd without the cause hy him 
 in his said^second plea alleged, committed the said trespasses in the intro- 
 ductory part of that plea mentioned, in manner and form as the plaintiff 
 hath above thereof complained against him, and this he the plaintiff prays 
 may be inquired of by the country, <fec. (ri) which is uniformly the conclu- 
 sion of such a replication. The word cawse, which means without the mat- 
 ter of excuse alleged, though in the singular number, puts in issue all the 
 facts in the plea, which constitute but one cause (o) ; and if such a repli- 
 
 (/) Cro. Car. 139; I)d. Raym. 120; Carth. (m) Com. Dig. Pleader, F. 24; Cro. J»o. 
 
 10. 599; Gilb. C. P. 153; 1 Sid. 841; Lutw. 
 
 ig) Ante, 592. 1384. 
 
 (A) 2 Bla. Rep. 1165. (n) See the form of the replication de in- 
 
 (i) 4 Bing. 729, S. C. affirmed in error, 1 juria in assumpsit, ante, 684, note {x) ; 2 
 
 M. & P. 783; 2 Y. & J. 304. See id. 79. Bing. N. C. 359; 3 Dowl. 754; Isaac v. far- 
 
 (fr) Willes, 204, 54; 1 East, 217. rer, 1 Westm. Chronicle, 383; and post, yo], 
 
 {I) Com. Dig. Pleader, F. 24: 3 Lev. 65; m. 
 
 Sob. 76; Sir T. Raym. 50. (o) 8 Cp. 67; 11 East, 451, 456. 
 
REPLICATIONS TO A SPECIAL PLEA. *611 
 
 cation be adopted, as we hive seen it may be, in answer to two or more "■ the 
 pleas by different defendants the tali causa will suffice, *reddendo singula nj^""^" 
 singulis (;>) ; and the words modo et forma only put in issue material al- niafof the 
 legations in the plea (g). plea. 
 
 When the plaintiff is not at liberty to reply de injuria to the whole plea, l^t- Of the 
 but must deny some particular fact or facts, it is first to be considered what "" "'* ^ ^*' 
 fact he may deny ; and secondly the form of such denial (r) . ^e^al of' 
 
 1st. A party may traverse or deny any material and issuable allegation only part 
 ^ in his opponent's pleading ; and this although the matter be stated with o^ "'^ pl«*- 
 more preciseness or particularity than is necessary (1) ; as if in avowry, ist.AThat 
 it be stated that the defendant was seized in fee, though it would have in°part?cu- 
 been sufficient to have alleged that the close was his freehold, &c., the seiz- lar may be 
 in in fee may be traversed (s). And a material fact may be denied, though traversed, 
 laid under a videlicet (Q (2). 
 
 So, whatever is necessarily understood, intended, or implied from the 
 plea, is traversable as much as if it were expressly alleged (m). TIius, the 
 allegation that " A. is seized of a close," imports that he was sole seized, 
 and therefore it may be shown that B. was seized of a third part, with a 
 traverse that A. alone was seized {x). But matter not before stated in the 
 adverse pleading, or necessarily implied, is not traversable though it affects 
 the merits (j/). In replevin and trespass to personal chattels, if the de- 
 fendant justify as bailiff or by the command of another, his authority might 
 always be traversed ; and the same rule now holds in trespass to real prop- 
 erty (a). When a party appears on the face of the pleadings to be es- 
 topped from denying a fact, if he were to traverse it his pleading would be 
 demurrable (a). The plaintiff must be extremely careful in traversing 
 one of several facts, that he denies that which is most open to objection, 
 for he admits those that are not expressly' denied (3). In trespass to 
 land, the defendant pleaded that A. was seized in fee, and being so seized 
 granted a right of way by non-existing grant ; and the replication travers- 
 ed the grant, and it was held that on these pleadings it was not competent 
 to the plaintiff to prove that A. was not seised in fee, for the purpose of 
 refuting the presumption of the grant (6). 
 
 If, however, an allegation in the opposite pleading be altogether *im- 
 material, it cannot be traversed (4), otherwise the object of pleading, viz. 
 the bringing the parties to an issue upon a matter or point decisive of the 
 merits, would be defeated (c). And upon this ground, mere matter of ag- 
 
 (p) 1 Leon. 124; Cro. Eliz. 139; 1 Sid. 39. (x) -Id.; Salk. 629. 
 
 (g) Ante, 476, Gilb. C. P. 51. (y) 1 Siiund. 312, note 4. Instances, Ste- 
 
 (r) As to traverses in general, Com. Dig. phen, 2d edit. 236. But the demurrer to such 
 
 Pleader, G. traverse should be special, id. 
 
 (s) 2 Saund, 206, 207, notes 21, 22, 24, 1 (2) 11 East, 65; 1 Saund. 347 c. n. 4; 1 
 
 Saund. 22, note 2; Com. Dig. Pleader, Q.; see East, 245, n. c; Cro. Car. 586; Willes, 100, 
 
 4 Moore, 303; 1 B. & B. 631; as to the dan- note b; ante, 595. 
 
 ger of unnecessary particularity, see ante, (a) Stra. 817; 8 T. R. 487; 7 T. K. 557; 
 
 228. ante, 603. 
 
 (J.) 1 Saund. 170, n. 2. As to the videlicet, (6) 1 C. & J. 48. 
 
 see ante, 317. (c) See 2 Saund. 207 a; Com. Dig. Pleader, 
 
 (m) 2 Saund. 10, note 14; 11 Bast, 411; 1 R. 8, 10; Bac. Ab. Pleas, H. 5, Instances, Ste- 
 
 Iiord Raym. 39. phen, 2d ed. 283. 
 
 (1) Bradner v. Demick, 20 Johns. 406. 
 
 (2) Hastings v. Lovering, 2 Pick. 223; Gleason v. M'Vikar, 7 Cow. 42, explaining the dictum 
 in Paine, Judge, &c. v. Fox, 16 Mass., 183; U. States v. Burnham, 1 Mason, 57. 
 
 (3) Toland 11. Sprague, 12 Peters, 335. 
 
 (4) Austin j;. Walker, 6 Foster, (N. H.) 456. 
 
612 FORMS AND PARTS OF 
 
 II. THE gravation, not going to the cause of action, or mere inducement or explan- 
 2dr°"De- ^^°U matter not in itself essential to or the substance of the case, should 
 nialofthe not be traversed {d). 
 
 plea. It is also a most material rule upon this subject, that a traverse should 
 
 loh i^^l^^ be taken on matter of fact, not mere matter of conclusion of law ; for to 
 ' raise an issue upon a legal inference or question would be to submit to the 
 jury that which is in the province of the court to decide (e) ; thus where 
 in trespass for fishing in the plain tifi''s fishery, the defendant justified that it 
 was an arm of the sea, wherein every one might fish ; a replication, travers- 
 ing that in the said arm of the sea every subject had the privilege of fishing, * 
 was held to be defective, as putting in issue a mere legal conclusion (/). 
 This erroneous traverse more frequently occurs in cases where the plea al- 
 leges certain facts in justification, and then concludes or infers from them 
 " by virtue whereof," (virlute cujus,) the party " being seized," or " be- 
 came liable." In such case the preceding facts, or some or one of them, if 
 any should be alone traversed ; and no traverse should be taken on the mere 
 legal result drawn from them, and alleged, perhaps unnecessarily, in the 
 plea (§■). But where the allegation, whether in the shape of virtule cur 
 jus prcetextu or per quod, be compounded of law and fact, and they be 
 connected together, a traverse may be properly taken thereon (A). This 
 subject was clearly explained and settled in a late case (t), already refer- 
 red to, as showing what may be put in issue by de injuria, &o. to a plea jus- 
 tifying under & fieri facias ; the Chief Justice observed (k), " it has been 
 argued before us, that motives are not examinable, and that the allegation 
 in pleas of virlute cvjus is not traversable. If a man do that which he is 
 justified in doing, and no more, the law, in many cases, will not permit his 
 motives to be inquired into, as if he have a right to prosecute for a crime, 
 or to arrest for a debt, there can be no inquiry as to the motives with which 
 these acts were done; but if he do more than as a prosecutor or creditor 
 [ *613 ] he have a riglit to do, he will not be justified, and it *becomes proper to 
 inquire whether the prosecution or arrest were not mere pretence. Such an 
 inquiry is material for the purpose of getting at the nature of the trans- 
 action, and enabling a jury to award proper damages. The virlute cujus 
 is sometimes a mere inference of law, as to what is the meaning of 'a writ, 
 or the extent of authority given by it. In such cases a question of law is 
 raised, and there can be no traverse, for that withdraws the consideration 
 of law from the judges, and presents it to the jury. But the virlute cujus 
 sometimes raised a mixed question of law and fact, and when this is the 
 case, there may be a traverse, for that is the only mode by which the facts 
 are to be settled on which the law depends. In Beat v. Simpson (/), Mr. 
 Justice Powell says, 'that when a matter of law is only comprised in a 
 virlute cujus, then it is only traversable ; but matter of fact in the virlute 
 
 (d) Id. ; Stephen, 2d ed. 284, 285. &o. 16 East, 41 ; 1 B. & Aid. 348; ante, 469. 
 
 (e) Plowd. 231 a; 11 Rep. 10 b; 1 Saund. An averment that a party was "duly elected," 
 23, note 5; 2 Hen. Bla. 182. See as to the 4 B. & C. 368; or that an assembly was "duly 
 rule that a plea must be capable of trial, ante, constituted," 4 B. & C. 427, is good. 
 
 540. (0 4 Bing. 729. Affirmed in error, 1 M. 
 
 (/) 2 Hen. Bla. 182; 5T.R.362; 2 Saund. & P. 783; 2 Y. & J. 304. Again affirmed 
 
 159 a, 161, note 11. in Dora. Proc. 3 Moore & Scott, 627; 10 
 
 («•) 1 Saund. 23, u. 5. Bar. & Ores. 157, S. C; and 1 Crom. & M. 
 
 (A) 1 Saund. 23, n. 5; Stephen, 2d ed. 500. 
 233, 234, and instances there, 11 Price, 343. (fc) 1 M. & P. 803. 
 
 As to traversing the dut issuing of process, 
 
BEPLICATIONS TO A SPECIAL PLEA. 613 
 
 cujus is traversable.' Lord Chief Justice Treby differed from Mr. Jus- "• the 
 tice Powell on this point, and said, ' By virtue of a writ means by au- 2diy?'De- 
 thority of the writ by an operation of law on the writ, without any.ingre- nial of the 
 dient or mixture of matter of fact.' The other judges agreed with Mr. P'ea- 
 Justice Powell, and said ' that when the virtvte cvjus is mixed with fact, p^^ri oUhe 
 it may be traversed.' {I). It appears from Williams' Saunders (m), that plea. '* 
 virtute cvjus may be traversed, and he refers, in support of this opinion, 
 to Hobart (w), and 9 Hen. 6 (o). The learned editor, Mr. Sergeant Wil- 
 liams, says ' that when the words virtute prcetexlu per quod, 8fc. introduce 
 a consequence from the preceding matter, they are not traversable, but 
 that matter of law connected with fact, or rather matter of right resulting 
 from facts is traversable.' In Tlie Grocers' Company v. The Archbishop 
 of Canterbury, Lord Chief Justice De Grey, in giving the judgment of the 
 Court, says (jo), 'law connected with fact is clearly traversable.' " 
 
 The traverse should also be on some affirmative matter, and not put in Traverse 
 issue a negative allegation ; thus if a plea state a request to deliver an ab- ^5°'^'^ *" 
 stract and refusal, a replication that the plaintiff did not neglect and refuse tive aUega- 
 to deliver such abstract, would be insufficient (jq). tions, and 
 
 not put in 
 
 The traverse must not be too large (r). Thus, to an avowry for £20 negative 
 arrears of rent, the plea in bar must be, that " no part of it is in arrear," allegation, 
 and if it were merely, that " the said sum of £20" is not in arrear, with- '''™^«"6 
 out saying " or any part thereof," it would be *demurrable (s). So, if a be too 
 defendant show that on a certain day and at a certain place, the plaintiff large, 
 demised to him the close in question, a traverse, that " on the day," or [ *614 ] 
 " at the place stated," the plaintiff did not demise, &c. is bad, as involv- 
 ing in the issue the time or place, neither of which is material (f). And 
 where in trespass for entering the plaintiff's house, the defendant pleads 
 that the plaintiff's daughter licensed him to enter, a replication that defend- 
 ant "did not enter per licentiam suam," is bad as a negative pregnant 
 though good after verdict (u). It is enough to deny the substance and ef- 
 fect of the averment, without pursuing the words of the party (x). But 
 where to a declaration against a rector for not carrying away tithes, the de- 
 fendant pleaded that the close was surrounded with ditches, and that the 
 ditches, ways and passages were so filled with water that the defendant 
 coald not carry off his tithes ; a replication that the ditches, ways, and 
 passages were not so, was held sufficient on demurrer, though in the con- 
 junctive: because the plea is one entire matter of excuse, and the defend- 
 ant relies on the whole, and not on each particular part being impassa- 
 
 {D 1 Ld. Eaym. 410. ' (/) Bardons j;. Selby, 1 Crom. & M. 500; 
 
 (»i) 1 Saund. 23, n. 5. Saund. 268; the reason, 269, n. 2. 
 
 (n) Page 52. (i) 2 Saund. 319, note 6; 1 Saund. 268 a, 
 
 (o) Fol. 14, 20. note; Steph. 2d edit. 287, 288. 
 
 \p) 3 Wils. 234. (u) Cro. Jac. 87 ; 2 Saund. 319, note 6. A 
 
 (gr) 6 East, 556, 557. negative pregnant is such a form of negative 
 
 (r) 1 Saand. 268, note 1; 269,note2; Com. expression as implies or imports an af^rmative. 
 
 Dig. Pleader, G. 15; Stephen, 2d ed. 286. A See Steph. 2d edit. 424. In the instances put 
 
 traverse may be too large by including quan- in the text, the denial that there was a demise 
 
 tity, time, place, or other ciroumstanoes, "on a particular day," and that the defendant 
 
 which, though forming part of the allegation "entered by virtue of the license," is pregnant 
 
 traversed, are not of the substance of the mat- with an admission that there was some demise, 
 
 ter, id. ■ and that there was some license. See further, 
 
 (s) 3 B. & P. 348; Com. Dig. Pleader, G. Ventr.70. 
 
 12, 16; 2 Saund. 207, n. 24; 819, n. 6; 1 (a) Salk. 629; 1 Saund. 69, note. 
 
614 REPLICATIONS TO A SPECIAL PLEA. 
 
 II. THE ble (jf). So, a replication to a plea claiming a right of common, travers- 
 2dr°°D6- ^^o " *'^^*' *'^° cattle were the defendant's own cattle, and that they were 
 niaiofthe levant ^nd couchant upon the premises, and commonable cattle," was held 
 plea. sufficient ; because, though issue must be taken upoa a single point, it is 
 ^"^rj o?the °°' necessary that such single point should consist only of a single fact, and 
 ^lea.° ^ the point of defence was the cattle in question being entitled to common 
 Negative (ar). So, to a plea prescribing for tolls, and also showing a prescriptive 
 pregnant, ^.j^j^j. ^^ distrain for the same, the replication may deny both the prescrip- 
 tions. 
 
 What en- In general a traverse, or denial, or allegation, should be so framed as to 
 tire allega- be divisible, and entitle the party pleading to recover pro tanto, if he prove 
 nXdTvisi- P^""* "^ ^he allegation (a). And in one case, where the defendant pleaded 
 ble, 90 as a right of common over the plaintiff's close, which the plaintiff had wrong- 
 to enable fuHy iaclosed, and the plaintiff replied that " the close in which, &c." had 
 recover '° ^^^^ inclosed twenty years, and the jury found that part only of the close 
 pro tanto had been so inclosed, and that the trespass was committed on that part, 
 on proof of that the defendant was entitled to a verdict, on the ground_that the plaintiff 
 ^^^^' should have replied that that part of the close, and not that the close had 
 [ *615 ] been so *iiiclosed {b). But in a subsequent action of trespass, where plain- 
 tiff declared for entering two closes, and the plea was, that the said closes 
 in which, &c. were from time immemorial parcels of a waste, and that the 
 defendant had a prescriptive right of common in the waste, and entered 
 at the times when, &c. to use his right of common thereon ; and because 
 the closes, in which, &c. were wrongfully separated from the residue of 
 the waste, he broke down the gate; and the replication was, that the said 
 closes, in which, &c. at the said time when, &c. were not wrongfully sepa- 
 rated from the residue of the waste, but, continually, for twenty years and 
 more, and before the first time when, &c., had been and were separated, 
 and divided, and inclosed from the residue of the waste, and occupied and 
 enjoined in severalty ; and the rejoinder traversed the averment, and issue 
 was joined thereon ; it was held that the allegation in the replication was 
 divisible, and the plaintiff entitled to recover on proof that ani/ part of the 
 closes had been inclosed for twenty years (c). This latter decision estab- 
 lishes that the word close in which, &c. is to be taken as divisible into 
 several parts. There are other instances also in which an entire allegation 
 in pleading is to be read as divisible. Thus a replication to a plea of in- 
 fancy, that the goods mentioned in the declaration were necessaries suita- 
 ble to the defendant's degree, is a divisible allegation, and may be proved 
 only in part, so as to enable the plaintiff to recover pro tanto, if he prove 
 that a part of the goods were necessaries (rf). But care must be observed 
 not to introduce into the allegation any words tliat may impose the burthen 
 of proving the whole, as for instance, in the above cases, " that all the 
 goods were necessaries, or that the whole and every part of the said close 
 had been inclosed for twenty years, &c., for such words may prevent the 
 entire allegation from being treated as divisible (e). Where the defendant 
 
 (.y) 1 Stra. 245. 395. 
 
 (z) 1 Burr. 817; 1 Saund. 646 c. (d) Per Denman, C. J. in Tapley v. Wain- 
 
 (o) 2 Bar. & Ores. 918; 7 B. & Ores. 846. Wright, 5 B. & Adol. 399. 
 
 (A) Havfke v. Bacon, 2 Taunt. 159; 2 Bar. (c) Id. ibid.; and see 2 Saund. 206,^note 
 
 & Cres. 818; 7 Bar. & Ores. 346. But over- 21, as to the improper introduction of the 
 
 ruled, see 5 Bar. & Adol. 895. word "only." 
 
 (c) Tapley v. Wainwright, 5 B. & Adol. 
 
REPLICATIONS TO A SPECIAL PLEA. 615 
 
 pleaded to indebitatus assumpsit for work and labor and materials, that «• the 
 there -was an agreement that the work should be to the satisfaction of the gafy^De- 
 defendant or his surveyor, and that the building had not been completed niai of the 
 to the satisfaction of the defendant or his surveyor, and the replication Pjea- 
 unnecessarily was in the conjunctive, yet it was holden to be supported in _„^'of jha 
 evidence by proof that the defendant was satisfied (/). plea. 
 
 A traverse may be too extensive, and therefore defective, by being taken *l"9' "o' 
 in the conjunctive, instead of the «^is/Mwc^tj>e, where proof of the allegation tensWe**" 
 in the conjunctive is not essential..-' Thus, in an action on a policy on ship 
 and tackle, the defendant should not deny that the ship and tackle were 
 lost, but that neither was lost {g). 
 
 *0n the other hand the traverse must not be too narrow, so as to prejudice [ *616 ] 
 the defence (A). Thus, if in an action of trespass in a common called A., ^o"*"" 
 the defendant pleads that A. the locus m ^mo, and B. are commons which 
 lie open to each other, and then prescribes for aright in both the commons, 
 the plaintiff must traverse the entire prescription, and not the prescriptive 
 right in A. only^ for the prescription is entire, and it may be important to 
 the defendant to be let in to prove acts in exercise of the right in B (i). 
 But in general a party is not bound to traverse more than one fact material 
 to the matter in dispute (A). And in trespass, if the defendant justified un- 
 der a prescriptive right to duty, and the like right to distrain for it, a re- 
 plication traversing the duty without denying the right to distrain, is suffi- 
 cient (J). And where the claim is divisible, and damages j9ro tanto are re- 
 coverable, the allegation should not attempt to confine the party to evi- 
 dence of tort containing for a specific and named period (m). 
 
 Eeplications denying s. particular factor facts, are, in point of /orm, of 2<Wy. The 
 three descriptions ; first, the plaintiff protests some fact or facts, and denies ^ptXili»- 
 the other, concluding to the country ; or, secondly, he at once denies the nial. 
 particular fact intended to be put in issue, and concludes to the country ; 
 or, thirdly, formally traverses a particular fact, and concludes with a ver- 
 ification. 
 
 1st. When the pleading of either party contains several matters, and the 
 opposite party is not at liberty to put the whole in issue, he may protest 
 against one or more facts, and deny the other. Thus, if in assumpsit the 
 defendant plead an accord and satisfaction, as that he delivered to the plain- 
 tiff, and the latter accepted a pipe of wine in satisfaction of the promises, 
 the plaintiff may protest the delivery in satisfaction (w), and reply that he 
 did not accept the wine in satisfaction (o) ; or in trespass, where the defend- 
 ant in his plea has justified an arrest and wounding under a writ and war- 
 rant, the plaintiff may protest the writ and warrant and reply de injuria 
 sua propria absque residua causa (p), or may protest one fact, and traverse 
 
 (/) Bradley D. Milnes, 1 Bing. N. C. 644. (ft) 1 Saund. 268, n. 1. 
 
 (g) 2 Saund. 205; Steph. 2d ed. 288, 289. {I) 1 Wila. 338. 
 As to traversing a particular estate, though (m) 1 Saund. 267. 
 
 unnecessarily stated so precisely, ante, 228, (n) PrecZurfi non, because "profcs<i«j that 
 
 229. the defendant did not deliver to him the plain- 
 
 (h) Com-. Dig. Pleader, G. 16; Steph. 2d ed. tiff the said pipe of wine as in the said plea 
 
 291, alleged," for replication he saith, &c. 
 
 (i) 4. T. R. 157; 1 Saund. 269, n. 1 ; Steph. (o) 8 Wentw. 1S6; Bac. Ab. Accord, C. 
 2d ed. 291, 292. Sed gutere. (p) 1 Burr. 820; post, vol. iii. 
 
 Vol. I. 80 
 
616 FORMS AND PAKTS OF 
 
 n. THB another {q). And if to a plea of performance of several matters in the 
 2^y^e- condition of a bond, the plaintiff mean in that suit to insist on the breach 
 nial'ofthe of one only, he may protest the performance of the others (r). This is 
 plea. termed a protestation, and its only possible use is, that in case the party 
 
 port o? tte "i^^^i'^g it succeeds in the point to be tried, he thei eby saves *himself the 
 plea. liberty of disputing in any other suit the truth of the jJlegation which is pro- 
 
 1st With a tested against (s) (1). It is wholly unavailable in the particular suit in 
 Won."'''" which it is adopted, for the allegation protested against is in effect admit- 
 r *fi1 7 1 ^^^ *** '^^' *''^^' ®° *^^* "° evidence need be adduced in support of it ; for it 
 '• -* is a rule that every pleading is taken to confess such traversable matter of 
 
 fact alleged on the other side as it does not traverse (<) : and it is of no ser- 
 vice in any other action, if the issue be found against the party making it, 
 unless it be matter which could not be pleaded, or on which issue could not 
 be joined, and then the party protesting will not be concluded, though the is- 
 sue be found against him (m). It is said that matter which is the ground of 
 the suit, or upon which issue might be taken, cannot be protested (2) ; as 
 that in detinue by the executor of A. the defendant cannot protest that A. 
 did not make the plaintiff his executor, for it is the ground of the suit, and 
 utterly destroys the plaintiff's action (x). It is also a rule, that a protes- 
 tation which is repugnant to, or inconsistent with the plea which it accom- 
 panies, is inartificial and improper (y). In these cases the replication 
 should either admit the part of the plea which is not disputed, Uy saying, 
 " true it is, that, &c. ;" or should at once deny the matter intended to be 
 tried ; though the latter mode, as being the most concise, appears prefer- 
 able, for whatever is not traversed is in effect admitted. However, a re- 
 pugnant, or inconsistent, or idle, or superfluous protestation, does not vitate 
 the plea, though it be shown for cause of demurrer, for the intent of a pro- 
 testation is, that the party may not be concluded in another action, and in 
 the existing suit it is surplusage, and may be rejected as such (z). Hence 
 it appears that a protestation Was, even before the recent rules, in general 
 an unnecessary form (a), and the replication might at once deny the fact 
 intended to be put in issue, as in the next description of replications (i). 
 Though it is not unusual, when it is doubtful whether a plea is sufficient 
 in law to protest the legal sufficiency of it ia the beginning of the replica- 
 tion (c), yet this is unnecessary, for without such protestation the plaintiff 
 would afterwards be at liberty to object to the plea by motion in arrest of 
 judgment, writ of error, &c. The pleading over to certain of the facts, 
 admits, in general, the truth of the rest of the allegations, without recog- 
 
 (g) Foph. 1. sed qutere, see the cases in 2 Saund. 103, note, 
 
 (r) Dyer, 184 a. 1, in which there are instances of protestation 
 
 (s) 2 Saund. 103 a, note 1; Com. Dig. of matter, upon which issue might have been 
 
 Pleader, N.; Doo. Plao. 295^ Co. Lit. 124 b; taken. 
 
 Plowd. 276; Steph. 2d edit. 266. (j/) 2 Saund. 103, n. 1; Bro. Ab. Protesta- 
 
 (0 Com. Dig. Pleader, G. 2; Steph. 2d edit, tion, 1, 5; Plowd. 276; Steph. 2d ed. 268. 
 
 265, 259; ante, 611, 612. (a) Com. Dig. Pleader, N.; 2 Saund. 103b 
 
 (k) 2 Saund. 103 a, note 1; Com. Dig. n. 1. 
 
 Pleader, N.; Bro. Ab. Protestation; Finch's (a) 8 Lev. 425. 
 
 Law, 359; Plowd. 276; Co. Lit. 124 b. (A) See the form, 3 Lev. 105. 
 
 (i) Com. Dig. Pleader, N. ; 2 Saund. 103, (c) Precludi non, because "protesting that 
 
 n. 1; Plowd. 276; Doo. Plao. 296; Moor, the said plea is wholly insufficient in law," 
 
 355, 856; Cro. Car. 366; 8 Wils. 109, 116; for replication he saith, that, &c. 
 
 (1) Briggs V. Dorr, 19 Johns. 96. 
 
 (2) Vide Snider v. Croy, 2 Johns. 227. 
 
BEPLICATIONS TO A SPECIAL PLEA. *Q1S 
 
 nizing the legal sufficiency of "either of such allegatioas. But, as vnll "• mb 
 be more fully explained hereafter, there are some faults in pleading which ^^y^oe. 
 may be cured by pleading- over, without demurring. In point of form the. nial of the 
 proper place in which to introduce a protestation in a plea, is immediately plea, 
 after the words actio non, &c. (d) ; and in a replication, after the words ^^^^- 9f. 
 precludinon,&c.(e). ^ ^ZL 
 
 But Reg. G-en. Hil. T. 4 W. 4, reg. 12, f directs " that no protestation B«g. Gen. 
 shall hereafter be made in any pleading; but either party shall be entitled' ^''•^'^'j,* 
 to the same advantage in that or other actions as if a protestation had been 12, abo?" 
 
 made. ' ' isMng pro- 
 
 testations. 
 
 2dly. The next description of replication, at once denying the particu- 2dly. A 
 lar fact intended to be put in issue, and concluding to the country, without direct and 
 any preamble, and without a former traverse, most frequently occurs 'va.^^ot one 
 practice, and on account of its conciseness should, when admissible, be /act. 
 adopted (1). Indeed, the Reg. Gen. Hil. T. 4. W. 4, reg. 13, requires 
 a traverse or denial of this description so to conclude to the country (/). 
 In assumpsit and other actions on contracts, when the plaintiff denies, and 
 does not confess and avoid the plea, this replication is frequent ; as that 
 the defendant was not an infant (g-), or that no tender was made, &c. (A)* 
 So to a plea of accord and satisfaction, the plaintiff may, without protesta' 
 tion, reply either that the defendant did not deliver the pipe of wine in 
 satisfaction, or that the plaintiff did not accept the same in satisfaction (i). 
 So in actions in form ex delicto, in general, when the plaintiff denies any 
 allegation in the plea, the better and shorter method is directly to deny the 
 fact without a formal traverse, and to conclude to the country (Je) (2). 
 Thus, if the defendant has pleaded defect of fences, or a prescriptive right 
 of common or of way, or a license, instead of alleging in the replicatioa 
 that the defendant of his own wrong committed the trespasses, or other 
 matters complained of, and then adding a formal traverse, and concluding 
 with a verification, (in which case there must be a rejoinder re-asserting 
 the matter of the plea, although there has already been an affirmative and 
 negative), the proper way is to say "precludi non, because, &o." and 
 then immediately denying the defect of fences, or the obligation to repair, 
 or the prescriptive right of common or way, or the license, and concluding 
 to the country (/). The replying with a formal traverse and verification is 
 a practice tending to unnecessary repetition and useless expense, and it [ *619 ] 
 may be hoped that the observation *of the learned editor of Saunders' 
 Reports (m) will have the effect of altering the practice ; which was repro- 
 bated in the time of William 3 (w), and in the reign of George 2, was 
 considered by the Court as an antiquated mode of pleading, tending to un- 
 necessary prolixity, and was said to have been altered of late (0). In this 
 
 {d) Plowd. 276 ; 2 Saund. 103 a, 1 ; see n. whether both might not be traversed, see ante, 
 
 forms Plowd. 276; Com. iDig. Pleader, N.; 605. 
 
 post, vol. iii. (fe) 1 Saund. 103 b. 
 
 (e) See the forms, post, vol. iii.; 3 Wentw. {l) Id.; 4 Burr. 320; see the forms, ppst, 
 
 186. vol. iii. 
 
 (/) Post. (m) 1 Saund. 103 b. 
 
 (ff) Post, vol. iii. (n) 1 Ld. Kaym. 6il. 
 
 (A) Jd. (d) 1 Burr. 320. 
 
 (i) Post, vol. iii.; LiLEnt. 105,106; query 
 
 (1) Andrua v. Waring, Bradner v. Demick, 20 Johns. 16S, 404. 
 (3) Vide Snider v. Croj-, 2 Johns. 428. 
 t See American Editor's Preface, 
 
619 FOEMS AND PARTS OF 
 
 II. THE description of replication care must be taken not to attempt to put in issue 
 2(11^°^ any immaterial matter (p). The form of traverse has been already no- 
 nialofthe ticed (g). 
 plea. 
 
 ^■^'y- ^^, 3dly. A formal or special traverse of the matter alleged in the plea, and 
 plea. concluding with a verification Cr), is rarely necessary; for we have just 
 
 3dly. A seen that when the plaintiff is at liberty, without introducing any new mat- 
 formai tra- ^gj.^ ^^ deny that alleged in the plea, ho may, and indeed should concisely 
 a verifioa- deny it, and conclude to the country ; but when it is necessary in the re- 
 tion. plication, or other pleading, to show a title in the plaintiff, or to introduce 
 
 new mailer inconsistent with that stated by the other party (s), or where 
 there are two affirmatives which do not impliedly negative each other, or 
 a coiifession and avoidance by argument only, a traverse was considered 
 to be necessary for otherwise pleadings would run to infinite prolixity (<) 
 (1). Thus, where the defendant alleged seisin in A. from whom he claim- 
 ed, the plaintiff could not in his replication allege seisin in B. from whom 
 he claims witliout either traversing, or confessing and avoiding the seisin 
 alleged by the defendant (u). So where in replevin the defendant avow- 
 ed as for a distress damage feasant, and the plaintiff pleaded in bar a right 
 of common in six acres of land, alleging that the locus in quo was parcel 
 thereof, and the defendant replied that the plaintiff formerly had common 
 in forty acres, whereof the said six acres were and are parcel, and all ly- 
 ing open together, and that the plaintiff before the distress purchased two 
 acres, parcel of the said forty acres, whereby the right of common became 
 extinguished, as this replication did not confess and avoid the plea in bar, 
 it was held bad for not traversing the right of common in six years only (a;). 
 So if a custom be pleaded, another custom or prescription repugnant to it 
 cannot be replied without a traverse, but a custom or matter consistent with 
 it, or which only qualifies, may {if) (2). In trespass to land, if the de- 
 fendant justify under a custom in a manor that each copyholder shall com- 
 r *620 1 ^o"^ \i2,se of *pasture, the plaintiff may, under a traverse of the custom, 
 show another custom defeating the operation of that stated in the plea, as 
 regards the locus in quo, viz. a custom to inclose, &c., without replying 
 such custom specially (a). In real actions, and in quare impedit, the 
 plaintiff (then called the defendant,) must frequently state a title in his 
 replication inconsistent with that of the defendant, in which case a trav- 
 erse is necessary (a). But in personal actions it is not in general ncces- 
 
 (p) Anie,(,\2. 651; 6 Co. 25 b; Dyer, 312 b; Com. Dig. 
 
 (q) Ante, 613, 615. Pleader, G. 2, 3. 
 
 (r) See in general, Steph. 2d edit. 205 et (x) 1 Leon. 48, 44; Com. Dig. Pleader, 
 
 teq. where this now almost disused species of G. 2. 
 
 traverse is very ably explained ; and see Beg. (j) lWil8.253; Bac. Ab. Fleas and Plead- 
 
 Gen. Hil. T. 4 W. 4, reg. 18, post, 621. ing, H.; 1 M. & Sel. 680; 1 B. & P. 285; 2 
 
 (s) When necessary to show a title in Leon. 209; 2 Hen. Bla. 284. 
 a replication. Com. Dig. Pleader, F. 13, (z) 7 B. & C. 346; 9 /rf. 671, S. C. 
 
 G. 3. (a) Cro. Eliz. 288, 670; Com. Dig. Pleader, 
 
 (0 1 Wils. 253; 1 Saund. 22, note 2. F. 13; Id. 81 . 10. 
 
 («) Cro. Eliz. 30; Oro. Jao. 682; Cro. Eliz. 
 
 (1) Vide Bindon v. Robinson, 1 Johns. 616. 
 
 (2) In trespass qnare clausum fregit the defendant pleaded that the locus in quo was part of 
 a public highway, and that the plaintiff had wrongfully encumbered it with a gate; the plaintiff 
 replied a prescription in those whose estate he had, to maintain a gate on the highway; it was 
 held that he need not traverse the highway, or the wrongful incumbering it with a gate. Spear 
 V- BickneU, 6 Mass. 226. 
 
REPLICATIONS TO A SPECIAL PLEA. 620 
 
 sary to state a title in the replication, when the defendant by his plea ad- "■ ™e 
 mits the plaintiff to be in possession, which is sufficient against a wrong- 2diy'"De- 
 doer (6). As if in tresp'ass quare clausum fregit, the defendant plead niai of the 
 that E. F. was seized in fee of the locus in quo, and enfeoffed G. H. who P'«*- 
 thereby became seized, and being so seized, enfeoffed the defendant, by l^rtS\he 
 which he became seized, until the plaintiff, claiming by color of a prior plea, 
 deed of enfeoffment made by B. F. by which nothing passed, entered, &c., 
 here the plaintiff may well traverse the feoffment supposed to .have been 
 made by E. P. to G. H. without making title ; because the defendant ad- 
 mits the plaintiff to be in possession by virtue of what amounts to an es- 
 tate at will, but if the plaintiff were to traverse the title of E. F. then he 
 must state his own title, and conclude with a traverse (c). 
 
 When a formal traverse is adopted, it ought to be introduced with a Forms of 
 proper title or inducement, to show the matter contained in the traverse to t^a^erse. 
 be material {d). Where no new matter is stated in the replication, and a 
 formal traverse is adopted, (though, as we have seen, unnecessarily), it is 
 usual in trespass, after the ■words ^^ precludi non," &c. to introduce the 
 traverse with the allegation, " that the defendant of his own wrong com- 
 mitted the trespasses complained of, in manner and form as the plaintiff 
 hath complained against the defendant, " without this, that, &o." denying 
 the right of common or way, &c. as stated in the plea, and concluding 
 with a verification (e). But where new matter is to be stated as induce- 
 ment to the traverse, it must appear to be sufficient in substance to defeat 
 the opposite party's allegation, and if a defective title be shown, the in- 
 ducement will be bad ; though in stating it, so much certainty does not ap- 
 pear to be requisite as in other parts of pleading, because it is seldom 
 traversable (1), the other party being in general compellable in his rejoin- 
 der or other pleading to adhere to his own allegation, which has been 
 traversed (/). The usual words of the beginning of a traverse are, 
 " without this, that, <fec." (^absque hoc;') but any words amounting to a de- 
 nial of the *allegation of the other party are sufficient, as et non, &c." (§•) [ *621 ] 
 The traverse must neither be too large, nor too narrow (A) : and though 
 it is in general in the negative of the words of the plea, yet time and 
 place, or other matter when immaterial must not be included (i) ; but the 
 words in manner and form as the defendant hath in his said plea above 
 alleged, may be added, for they only put in issue matter of substance (Je). 
 The conclusion must before the recent rules in general have been with a 
 verification, unless where no new matter was stated by way of inducement, 
 or where the traversed comprised the whole matter of the plea, in which 
 case it might be to the country (/). 
 
 (6) /(/. ihid.; 8 B. & C. 534. {g) Com. Dig. Pleader, G. 1. 
 
 (c) See the case in Poph. 1, 2. (A) As to this, see 11 East, 407, 410, 411; 
 
 Id) Parlcer's Rep. 131; Com. Dig. Pleader, 1 Ld. Eaym. 39; ante, 613, 615. 
 
 G. 20; see 1 M. & Sel. 680; Stephen, 2d ed. (i) Id.; Bao. Ab. Pleas, H. 6. 
 
 226. (fe) 2 Leon. 5; Hardr. 39; Com. Dig. 
 
 (c) See the forms. East. Ent. 622, 623; Co. Pleader, G. 1; vide 3 Bing. 135; 10 Moore, 
 
 Ent. 656. We have just seen that a formal 502, S. C. 
 
 traverse is not necessary in this case. {V) 1 Saund. 103 a, b; Dougl. 428, and 
 
 (/) Com. Dig. Pleader, G. 20. When not, see Reg. Gen. Hil. 4 W. 4, reg. 13, infra. 
 see id. G. 17, 18; 1 Saund. 22, n. 2. 
 
 (1) Vide Fowler v. Clark, 3 Day, 231; Van Ness v. Hamilton, 19 Johns, 871. 
 t See American Editor's Preface. 
 
621 
 
 FORMS AND PAETS OP 
 
 II. THE 
 BODY. 
 
 2dly. De- 
 Dial of the 
 plea. 
 2(Jly. Of 
 part of the 
 plea. 
 ■No trav- 
 erse to be 
 after a 
 traverse. 
 
 Beg. Gen. 
 Hil. T. 4 
 W. 4, reg. 
 13, as to 
 traverses. 
 
 [ *622 ] 
 
 2clly. A de- 
 nial; and 
 stating a 
 breach. 
 
 It is a general rule that there cannot be a traverse after a traverse where 
 the first was material, and of matter necessarily alleged (m). As if the 
 plaintiff has declared on a seizin in fee in B. who granted, &c. and the de- 
 fendant shows a seizin pur autre vie, and traverses the seisin in fee, the 
 plaintiff cannot waive such traverse, and traverse that he was seized pur 
 autre vie, for this would be a departure from anddesertion of his prior al- 
 legation, and the parties are not to go on ad infinitum {n). In some cases 
 however a traverse may be taken after a former apt and pertinent one. 
 As where in a transitory fiction there is a special local justification with a 
 traverse of the place laid in the declaration, the plaintiff may either join in 
 the defendant's traverse, or traverse the special justification, for in this 
 case the. place laid in the declaration being immaterial, the plaintiff is not 
 bound by it (o), and the same rule prevails where time or any other im- 
 material matter alleged in the declaration, is traversed in the plea (p). 
 And if a traverse be of matter immaterial (^), or of an inference of law (r), 
 or not to the substance and point of action, the other party may either de- 
 mur specially, or may pass it by and tender another traverse (s). 
 
 The Reg. Gen. Hil. T. 4 W. 4, reg, 13,t orders that " all special tra- 
 verses, or traverses with an inducement of affirmative matter, shall con- 
 clude to the country, provided that this regulation shall not preclude the 
 opposite party from pleading over to the inducement when the traverse 
 is immaterial." 
 
 The king is allowed to take a traverse after a traverse, where his *title 
 appears by office or other matter of record; though if it do not so appear, 
 such second traverse cannot be taken (f). 
 
 A defect in a traverse can only be taken advantage of by special demur- 
 rer ; and therefore it was decided that where the inducement to a traverse 
 confesses and avoids the other party's title, the traverse, though idle and 
 bad on special demurrer, is aided by a general demurrer (m) ; and an im- 
 material traverse (a;), or the want of a traverse when necessary, is aided 
 upon a general demurrer and by verdict or pleading over (jj'). 
 
 With respect to a replication denying the effect of the plea, and showing 
 a particular breach without confessing and avoiding the plea, it most fre- 
 quently occurs in debt on a bond conditioned to perform covenants, &c. (2). 
 We have already seen (a) when this replication is necessary, both at com- 
 mon law and under the 8 & 9 Wm. 3, c. 11, s. 8, 'and therefore no further 
 observations thereon will be here necessary. 
 
 (m) Com. Dig. Pleader, G. 17 j Vaugh. 
 62; 1 Hen. Bla. 876 to 412. And see the 
 reasons, 4 T. R. 439, though the decision 
 ■was reversed in 5 T. E. 867; 2 Hen. Bla. 
 182. 
 
 (?i) Id. ibid. 
 
 (0) 1 Saund. 22. n. 2; Com. Dig. Pleader, 
 G. 18; Bac. Ab. Pleas, H. 4; Lutw. 1488; 1 
 Hen. Bla. 403; 4 T. E. 439, 440, reversed, 
 see 5 Id. 367; 2 Hen. Bla. 182. 
 
 (p) Id. ibid. 
 
 (5) Ante, 611, 612. 
 
 (?) Ante, 612. 
 
 (s) 2 H. Bla. 186; 1 Saund. 22, n. 2; Com. 
 
 Dig. Pleader, G. 19; Bao. Ab. Pleas, H. 4; 1 
 Hen. Bla. 402, 403. 
 
 (i) Vaughan, 62; Com. Dig. Pleader, G. 
 7 19. 
 '(«) 1 Saund. 207; note 5; 22, note 2; 
 
 1 Com. Dig. Pleader, G. 22. 
 
 {x) 1 Saund. 14, n. 2; 4 Ann. c. 16, s. 1. 
 An immaterial issue is not cured by verdict. 
 
 2 Saund. 219 a; Tidd, 9th ed. 921. Aliter as 
 to an informal issue, id. 
 
 (y) Com. Dig. Pleader, G. 122; 1 Saund. 14, 
 note 2. 
 
 (z) Com. Dig. Pleader, F. 14, 15. 
 (o) Ante, 585. 
 
 t See American Editor's Preface. 
 
 i--:---*! 
 
REPLICATIONS TO A SPECIAL PLEA. 622 
 
 The third description of replication admits, either in words or in effect n. thk 
 the fact alleged in the plea, and avoids the effect of it by stating new mat- sdfy °con- 
 ter; and this replication frequently occurs in practice. The general rule fession and 
 is, that a replication must confess and avoid or traverse the matter stated avoidance 
 in the plea (6)_(1>, and in this respect a replication resembles a plea (c). ''^** P^*"* 
 Where the plaintiff declares on a fact which at first view is a trespass, and 
 the defendant in his plea acknowledges that fact, but states such new circum- 
 stances, as, if true, amount to a justification, if the plaintiif can suggest ad- 
 ditional new matter, which shows that the defendant's plea (though true) 
 will not justify the trespass committed, he ought to reply that new matter 
 in a special replication, that the defendant may demur or take issue upon it. 
 Thus, to a plea in trespass justifying under a warrant upon an information 
 for treasonable practices, for which offence the plaintiff had been admitted 
 to bail by the Chief Justice of the King's Bench, the plaintiff, instead of 
 traversing the plea, should confess and avoid it by replying a tender and 
 refusal of bail (d). So, where -to trespass quare clausum /regit, the de- 
 fendant pleaded a custom applicable to all farms within the parish, which 
 were not exempted by special agreement or otherwise, and the plaintiff 
 traversed the custom generally ; it was held *that it was not competent for [ *623 ] 
 the plaintiff to prove that his particular farm was exempted by special 
 agreement or otherwise (e) ; the proper mode of availing himself of such a 
 defence would have been to have confessed the custom, and avoided it by 
 showing that the exception applied to his farm (/). If infancy be pleaded, 
 the plaintiff may reply that the goods were necessaries, or that the defend- 
 ant after he came of age,,fatified and confirmed the promise (g-). And 
 replevin to an avowry by a freeholder for a distress damage feasant, the 
 plaintiff may plead in bar a demise to him from the defendant (A) ; or in 
 trespass where the defendant has pleaded son assault demesne, the plaintiff 
 • admitting that he made the first assault, may reply, shewing that it was 
 justifiable (i). So to a plea of liberum tenementum, the plaintiff may, as 
 in replevin, reply a demise from the defendant (A), or from some person 
 seized of the estate before the defendant had or claimed to have any interest 
 in the locus in quo (Z) ; or if the defendant has justified under a demise, he 
 may show a notice to quit, or to justification under a distress damage 
 feasant, may reply a subsequent conversion (m). We have already seen 
 that in some cases a plea may be generally and apparently true, and yet 
 the plaintiff may safely traverse it, and need not bring forward in his repli- 
 cation matter which disproves the plea as applied to the subject in dispute. 
 Thus, in trespass to land, if the defendant justify under a custom for all 
 copyholders to enjoy common of pasture over the locus in quo as part of 
 the waste, the plaintiff, under a traverse of custom may prove another 
 custom for the lord to inclose part of the waste, and that the locus in quo 
 
 (4) Com. Dig. Pleader, G. 2; Cro. El. 7S4; (h) Id. 
 
 4 B. & C. 379, per Holroyd, J. (i) Id.; 2 Campb. 
 
 (c) See ante, 625. ' (k) Post, vol. Hi.; Willes, 225; 1 East, 
 
 (d) Ante, 610, S92; 2 Bla. Bep. 1165; and 212. 
 
 see Carth. 280. (I) Id.; Dyer, 171 b. 
 
 (e) 2 You. & Jerv. 79. (m) 3 Willes, 20. Ante, 173, 179. And 
 (/) Id. see ante, 610, 612, as to replying, &c. to a 
 (g) Post, vol. iii. justification under a, fieri facias, 
 
 (1) U. States V. Buford, 3 Peters, 81. 
 
623 FORMS AND PARTS OP 
 
 II. THE ^as inclosed and became freed from the common of pasture by virtue of 
 
 3dry°Con- ^°°'^ custom (n). 
 
 fession and In replications of this description it is necessary that the material parts 
 avoidance of the defendant's title be admitted either in terms or in effect (o). It is 
 of the plea, in^ggd a principle applicable to other pleading as well as a replication, that 
 by not traversing the statement of the adversary, it being material and 
 traversable, its truth is to be taken to be admitted (p). It behoves the 
 plaintiff therefore to be cautious in deciding whether he should deny the 
 allegation in the plea, or, admitting its apparent truth, should obviate or 
 defeat its effect by an assertion of new matter. It is not unusual to admit 
 the material facts alleged in the defendant's plea, in express terms, by stat- 
 [ *624] iog, after the words *precludi non, " that although true it is that the said 
 demise was made to the defendant, as in his said plea is alleged, yet for 
 replication in this behalf the plaintiff in fact saith, that, &c. :" but where 
 the plaintiff in the subsequent part of his replication claims immediately 
 from the defendant, or states generally, " that before the defendant had 
 any thing in the locus in quo, &c." this form appears unnecessary {q") ; 
 though it may be advisable to adopt it, when the plaintiff claims title from 
 a party alleged to have been seized in fee prior to the party under whom 
 the defendant claimed (r). When the replication completely confesses 
 and avoids the defendant's plea, it should not conclude with a traverse (s); 
 though as it introduces new matter, it must conclude with a verification, in 
 order that the defendant may have an opportunity of answering (t). A 
 replication of this nature must confess as well as avoid the effect of the 
 defendant's plea, and if the plaintiff rely on s^me excess as an imprison- 
 ment under color of process after a voluntary escape, this matter should 
 be new assigned, and not replied (u). For a replication must state matter 
 which entitles the plaintiff to his action for the same trespasses as those 
 which are mentioned in and attempted to be justified by the plea ; of which • 
 description are replications of new matter, showing that the defendant is 
 a trespasser ab initio (a;) ; but when the plaintiff relies on trespasses dif- 
 ferent from those pleaded to, he must new assign Qj'). 
 
 4thly. Of The fourth description of replication, if it can be so termed, is a New 
 
 liennunt -^^^ignment (z). A new assignment is not however, properly speaking, a 
 
 replication, since it does not profess to reply to any thing contained in 
 
 the defendant's plea, but if so vulgar a term can be tolerated, gives the 
 
 go-by and throws aside as useless the previous pleading, or rather re-stales, 
 
 (») Ante, 587, 619. sets up matter consistent with, but qualifying 
 
 (o) Dyer,|[ 171 b; Sir W. Jones, 352. In the matter alleged on the other side, he should' 
 
 trespass for taking and driving the plaintiff's not also traverse, 1 Wills. 253. 
 cattle, to which there was a justification that (t) 1 Saund; 103, in notis. 
 the defendant was lawfully possessed of a (b) 2 Wils. 3, 4; 2 T. R. 172, see ante, 
 
 close, and that he took the cattle there dam- 592, 598, and post, 632, 635, as to this, 
 age feasant, the plaintiff may specially reply (a:) 1 Saqnd. 300 a; 3 Wills. 20; 8 T. R. 
 
 title in another, as whose servant he entered, 297, 298; 1 Hen. Bla. 560, 561. See as to 
 
 and the giving unnecessary color will not replying excess, &c. ante, 592, 593, post, 632, 
 
 vitiate, 1 East, 212. 635. 
 
 (p) Ante, 524, 528, 6i2; Steph. 2 edit. (j) 2 Wils. 4. 
 
 655. (2) See in general Com. Dig. Pleader, 3 M. 
 
 (?) Dyer, 171 b; Sir Wm. Jones, 352; 1 84; Bac. Abr. Trespass, 1. 42; Vin. Abr. 
 
 East, 212, 218. Trespass, TJ. a, 4, and Novel Assignment; 1 
 
 (r) Id. Saund. 299, note6; Steph. 2d ed. 262; Kdd, 
 
 (s) 1 Saund. 22, n. 2; Id. 28, n. 2; Com. 9th ed. 690. 
 Dig. Pleader, 2 G. 3. So where a plaintiff 
 
REPLICATIONS TO- A SPECIAL PLEA. " 624 
 
 in a more minute and circumstantial manner, the cause of action, or "• ''™ 
 some part thereof, alleged in the declaration, in consequence of the defend- 
 ant having through mistake or design, omitted to answer it in his plea (a). 
 It is therefore in the nature of a new declaration, or rather it is a more pre- 
 cise and particular repetition of the declaration in those cases where the law 
 permitted a general form of declaring equally applicable to two or more 
 states of facts, but leaving it doubtful in the description which was intended. 
 *The necessity for, or use of, a new assignment arises from the very gen- [ *625 ] 
 eral mode of statement sometimes permitted in the declaration, and the lat- 
 itude allowed in the proof of many of the allegations therein. It is obvi- 
 ous therefore that a new assignment may be admissible in an action of as- 
 sumpsit, as well as in other actions ; as if to a declaration'in indebilaius 
 assumpsit for goods sold, the defendant plead a plea applicable to one sale 
 and delivery, but not to that in relation to which the plaintiff's present ac- 
 tion was brought, he may new assign accordingly that he brought his ac- 
 tion for the price of other goods sold and delivered (6). It is clear that 
 in other cases a new assignment may occur in assumpsit, as if to an action 
 for goods sold the defendant plead a judgment recovered, the plaintiff may 
 new assign that his present action is for other and different goods sold than 
 in the action in which the judgment was recovered (c). And there is a 
 recent instance of a new assignment and subsequent pleadings in an action 
 on a bill of exchange (rf). 
 
 On reference to the preceding parts of this treatise relative to the form Arises 
 of the declaration, it will be seen that the cause of action is sometimes de- ^'^?." ^ene- 
 scribed in very general terms. In actions upon contracts the declaration, deolar^ 
 when special, in most cases, contains a tolerably particular description of tion, which 
 the true cause of action ; and in actions for torts, where the form of decla- *"'■'•*' ^^ 
 ration is in case, the description of the injury is also in general sufficiently piead sh 
 certain : accordingly it will be seen that a new assignment rarely occurs in evasive 
 those forms of action (e). So where the action was in trespass, a general "'^P'^" 
 mode of declaring in trespass quare clausum fregit was permitted ; and, 
 under the ordinary form of declaration, the plaintiff was in general entitled 
 to recover upon proof of any trespass of a similar nature to that stated in 
 any close or land in the same parish that has been committed by the de»' 
 'fendant before the commencement of the action. Where several trespass- 
 es had been committed, some of which the defendant niight coi'ceive to be 
 justifiable, it had become highly important for the interests of defendants, 
 and also expedient for the ends of justice, that the truecause of action, in 
 respect of which the plaintiff meant to proceed, should be better ascertaiur • 
 pd by the record ; for otherwise the defendant might be misled by the gen- 
 erality of the declaration, and be met at the trial by the proof of a differ- 
 ent injury from'that which he came prepared to dispute ; and on other ac- 
 counts it' was often very desirable for the defendant to confine and limit in 
 some degree the general description in the declaration. In order to effect 
 *that object, he was allowed to frame his plea in such a manner as would I "^o ] 
 
 (a) 3 Bla. Com. 311; Steph. 2d ed..266; 1 (c) 6 Term, R. 607; 3 Wils. 304; 3 Bar. 
 
 Saund. 299, note 6. & t;res. 235; 5 D. & R. 87, S. C; and see 
 
 (6) 6 T. R.-607, see also Heyden v. Thomp- forms post, vol. iii. Index, New Assignment, 
 son.l Adol. & Ell. 210. It was supposed (rf) Heydon v. Thompson, 1 Adol. & Ell. 
 
 otherwise in assumpsit, Solly v. Neish, Trin. 210. 
 T. Exeh. 1835, Legal Obs. 134, 135 ^ see post, (e) See post, 636. 
 636, 637. 
 
 Vol. I. 81 
 
626 FORMS AND PARTS OF 
 
 II. THE often render it necessary that the plaintiff should re-state with greater pre- 
 "°°^" cision and particularity (1), the real cause of action intended by his declar- 
 Msim-^*" ation ; and such re-statement was termed a new assignment. This repe- 
 menta. tition oi the real cause of action occasioned evasive and expensive plead- 
 ing, and on that account the Eeg. Gen. Hil. T. 4 W. 4, reg. V.,! directed 
 that in declaration in trespass quare clausum /regit, the name of the 
 close or its abuttals, or other particular description, should be added, by 
 which means the necessity for, and utility of a plea of liberum tenementum 
 has in a great measure been avoided. 
 
 When a jt jg ^ general rule, that where the defendant has committed several 
 mratls'ne^ trespasses either to the person, or the personal or real property of another, 
 cessary in some of which were justifiable, and others not, and the action is brought 
 general. fQj. those trespasses which were not justifiable, but the defendant by his 
 plea answers only those which were so, then the plaintiff should new as- 
 sign (/). 
 In case of Thus, in action of trespass for an assault, if there have been two as- 
 to^thrpcr- vaults, one justifiable, on the ground of it having been committed in self: 
 ton {g). defence and the other not, and the declaration contain only one count 
 for an assault, and the defendant plead son assault demesne, the plaintiff 
 should new assign the illegal assault (A). In a case of this description we 
 have seen that the defendant cannot, with any degree of certainty, collect 
 from the declaration which of the two assaults the plaintiff means to proceed 
 for, and as the plaintiff would be allowed to prove either under the declara- 
 tion, it becomes a matter of necessity that the defendant should put his jus- 
 tification upon the record, or otherwise the plaintiff might recover at the 
 trial on proof of the very assault which was legally justifiable. The de- 
 fendant is therefore, by the rules of pleading, allowed to suppose that the 
 action was brought for the latter assault, and he consequently pleads son 
 assault demesne. Now, in such a case, the plaintiff cannot safely traverse 
 this plea, for if we were to do so, and the justification were to be proved, 
 the defendant would be entitled to a verdict. The reason of this is, that 
 the general terms of the declaration are confined by the effect of the plea, 
 and the replication. The plea admits of the fact of an assault having been 
 committed, and then gives a more minute and circumstantial account of' 
 it by showing how it originated, and what circumstances rendered it, as 
 the defendant conceives, justifiable. By traversing the plea the plaintiff is 
 held to admit that the defendant is right as to the particular assault com- 
 [ *627 ] plained of; for if he were *allowed to traverse the plea, and afterwards 
 to prove an assault totally unconnected from all circumstances approach- 
 ing to justification, it would be an act of gross deception towards the de- 
 fendant. The issue is therefore confined to such an assault as is described 
 in the plea, if any such has actually taken place, viz. an assault commit- 
 ted under some circumstances of provocation, which the defendant asserts 
 amount to a legal excuse', but which assertion the plaintiff denies. In 
 order to avoid this result, and to enable the plaintiff to give evidence of 
 
 (f) 1 Saund. 299 a,, n. 6; 1 Ld. Eaym. excess, ante, 492, 493; 2 Crom. M. & Ros. 
 465; 2 Wils, 8, 4. 338. 
 
 ig) The plaintiff must in general reply .{h) Id. Ibid.; 2 Saund. 5 e, 5th ed. 
 
 ^ .. (1) Troup V. Smith, 20 Johns. 48. 
 
 t See American Editor's Preface. 
 
REPLICATIONS TO A SPECIAL PLEA. 
 
 627 
 
 that assault which was wholly destitute of excuse, it is necessary that he ii-J™b 
 should not traverse the defendant's plea, but correct the error, or affected """^ 
 error into which the plaintiff has fallen, by a new assignment, viz. by stat- assign, 
 ing that he brought his action not for the assault alluded to, and answered ments. 
 by the plea, but for another and a different assault committed on a differ- 
 ent occasion. The same observations will be applicable to cases where 
 the defendant justifies on assault or other trespass under process, &c., and 
 the plaintiff relies on an assault or trespass committed before the issuing of 
 the writ, or after the return of it, or after the plaintiff in the second action 
 - was discharged by the plaintiff in the first action, or after a voluntary 
 escape on process in execution (t). 
 
 If son assault demesne has been pleaded, and the evidence will establish 
 that the defendant's battery of the plaintiff was excessive, and more than 
 was necessary for self-defence, it seems that according to the latest deci- 
 sions the plaintiff may under a de injuria, and without a special replication 
 or new assignment give in evidence the excess (y) (1). But it has been 
 decided that a plaintiff cannot reply de injuria, and also new assign that 
 the defendant committed the trespasses with more violence than was neces- 
 sary, such pleading being demurrable for duplicity, though if not demur- 
 red to, plaintiff may proceed on either on the trial (Je), 
 
 In like manner in trespass for injuries to ^ersowaZ property, where there Trespasses 
 have been two or more injuries to the same property, or two taliings of *°P'"'""'' 
 similar property, a new assignment -will become necessary in cases analo-^™^^ 
 gous to those we have noticed with respect to assaults (J). Thus, where 
 in an action of trespass for taking away the plaintiff's oaks, the defendant 
 pleaded that the oaks were standing in a certain close, situate in the manor 
 of A. the freehold of B. who felled them, and justified taking them away 
 by the command of B., it was held that the plaintiff might new assign that 
 the oaks were growing in his own close within the manor of W., and were 
 other oaks than those mentioned in the plea (m). And in transitory actions 
 of this nature, not only the place but the time may be made material by the 
 plea, *and the plaintiff must then, when it becomes necessary, new assign 
 the trespass at another time («). But if to trespass for removing goods, [ *628 ] 
 and casting, flinging, or throwing goods out of a barn, the plea only jus- 
 tify the removal, and except the casting, flinging, and throwing the goods 
 out of the barn, no new assignment is necessary, and plaintiff may recover 
 for any damage done by the excepted act if proved under the general is- 
 sue (o). 
 
 And in trespass for an injury to real property where the defendant jus- Trespasses 
 tifies under a right of way, &c. if the defendant has used the way in a dif- toreo/pro- 
 ferent manner from what he was entitled to do by virtue of the prescription P" ^' 
 or grant, the plaintiff must new assign (jp). So, if in an action for tres- 
 passes to the plaintiff's land, committed with cattle, the defendant prescribe 
 
 (0 Saund. 249, note 6, and see 2 Campb. (m) 1 Saund. 300 a. 
 
 175; 1 Bing. 317; 3 Taunt. 525, 526. (n) 1 Saund. 300 a; 2 Ld. Baym, 1015. 
 
 (/) Ante, 587, n. (e); Reeoe v. Taylor, 1 (o) Neville v. Cooper, 2 Crom. & M. 329; 
 
 Har. & Wol. Rep. 15. and see Bush w. Parker, 1 Biag. N. 0. 72. 
 
 ik) Thomas v. Marsh, 5 Car. & P. 596. ( p) 1 T.. B. 560, 562. 
 
 (0 Ante, 626. 
 
 (1) Hannan v. B4e3, 15 Mass. 347 * 
 
628 POEMS AND PARTS OF 
 
 n. THU for commonable cattle levant and couchant, and allege that the cattle men- 
 4th°"^N tioned in the declaration were such cattle, and in truth the defendant has 
 assign- ^^ put on such cattle, and also other cattle not levant and couchant, the plain- 
 ments. tiff should new assign, stating that he brought his action for depasturing 
 the common with other cattle, and should not traverse the levancy and couch- 
 ancy ; for upon such a traverse it would appear to be sufficient to show 
 any thing which excuses the trespass, and the number mentioned in the 
 declo ration would not be material (9). And it has been hold that if in 
 an action for breaking and entering the plaintiff's house, land, &c.thede- 
 fendant.plead a license which the plaintiff had revoked before any of the 
 trespasses for which the action was brought were committed, or which was 
 confined to some particular act, and the defendant exceeded, the plaintiff 
 must state the revocation or excess in a new assignment (r). 
 After plea In all the preceding instances in which a new assignment may become 
 tenemen- necessary, it will be observed the very circumstance of the new assignment 
 turn. supposes that two or more trespasses, or acts apparently amounting to 
 trespasses, have taken place. The plaintiff declares in the new assignment 
 that he brought his action, not for the trespass admitted and justified by the 
 plea, but for another and different trespass committed upon another and 
 different occasion, and which the defendant has not answered by his plea 
 (s). And in general the effect of the new assignment is, to admit that 
 one of the assaults, or apparent trespasses, has been justified ; and it 
 [ *629 ] operates as an entire waiver *or abandonment of that particular trespass (<). 
 But it may often occur in trespass to real property that a new assignment 
 will become necessary on a different ground. We have seen that in declare 
 ing in trespass for an injury committed by breaking and entering the plain- 
 tiff's close, it was unnecessary to give either the name or abuttals or any 
 specific description of the close, and that it was sufficient to state the par- 
 ish or place in which it is situate (m). Under that general description it 
 was obvious the plaintiff would be entitled to give evidence of any act of 
 trespass committed by the defendant in any close of the plaintiff within 
 the particular parish or place mentioned in the declaration ; and the con- 
 sequence of this was, that the defendant was under some difficulty in know- 
 ing in what part of the particular parish or place the alleged trespass was 
 committed ; and unless he could obtain a specific description of the par- 
 ticular close, ho would not know what he was to come prepared to dispute 
 at the trial. To remedy that inconvenience, we haye seen that the defend- 
 ant was permitted to plead the plea of liberum tenementum, or as it was 
 called the common bar (cc). This plea the plaintiff can seldom safely 
 traverse if the declaration did not describe the close by name or abuttals, 
 for if he did so, and the defendant could prove that at the time of the sup- 
 posed trespasses he had any land within the particular parish or place laid 
 in the declaration, the issue must be found for him («/) (1) ; and it was 
 
 (9) "Willes, 638; 2 Saund. 346 e. ^ (<) See 16 East, 82. 8R; 1 Saund. 299 a, n. 
 
 (r) See 3 Campb. 513; 1 Saund. 300 c, d, 6; 2 T. R. 176, 177; per Cur. 10 East, 80; 
 
 4th ed. But this, it appears, only applies to post, 632, 633. 
 
 those cases in which the declaration is confined («) See ante, 394. It seems to have been 
 
 to a single act of trespass, or in which the mfficient, to name the county only, id. 
 
 defendant confines the general terms of the (x) See an(c, 503; 11 East, 51. 
 
 declaration, by specifying the particular, acts (y) 2 Taunt. 156; per Lawrence, J. 7 T. 
 
 to which the license extended in his plea. See R. 885; 1 Saund. 299 b, 0; Com. Dig. Plead- 
 
 posl, 631, 11 East, 451. _ , er, 3 M. 34; 1 B. if C. 489; 2 D. & R. 719, 
 
 (8) Sge the usual forrfis, post, toI iii. S, C. 
 
 (1) Ellet V. Pollen, 7 Halst. 357. 
 
REPLICATIONS TO A SPECIAL PLEA. 629 
 
 perhaps reasonable that it should be so, for the object of the plea of free- n- thb 
 hold in such a case being to compel the plaintiff to give a more particular 4(^iy"New 
 description of the particular close alluded to in his declaration, in the event asign- 
 of his declining to give the required information, he was held to admit that ments. 
 the defendant was right as to the particular place, and the only issue rais- 
 ed by the replication- was, whether the defendant could prove that he had 
 any close answering the description contained in his plea. If plaintiif 
 therefore were not able to traverse the plea of liberum tenementum with 
 safety, he was driven to a new assignment, in which he stated the place 
 with proper exactness (z). This was usually done by setting forth the 
 name and abuttals of the close, and in case the defendant has given any 
 particular description to the close mentioned in his plea, the description of 
 the plaintiff's close in the new assignment must be such that a plain dif- 
 ference may be perceived between the place so newly assigned and that 
 mentioned in the plea (a) (2). It may be observed with respect to new 
 assignments after the plea of liberum tenementum, that whenever *the de- [ *630 ] 
 fendant possesses any close which he describes in his plea, and alleges it 
 to be his soil and freehold, the effect of a new assignment is entirely to 
 exclude the consideration of any trespass committed within such close. 
 The plaintiff in his new assignment avers that the place newly assigned is 
 another and different place from that mentioned in the plea, and he hereby 
 waives and abandons any claim in respect of trespasses committed in the 
 latter place. And the same principle supports the position, that where the 
 defendant in his plea specifies a particular trespass, and justifies it, and 
 the plaintiff new assigns in respect of a different trespass, the former tres- 
 pass is considered to be entirely abandoned (6). And as in the latter case 
 the new assignment supposes two diff'erent trespasses, so in the former it 
 supposes two different places; for, as we shall see more particularly here- 
 after, whenever the plaintiff and defendant are agreed as to the particular 
 trespass or place, and there appears sufficient upon the record to ascer- 
 tain and identify it, a new assignment is unnecessary and improper («). 
 
 The cases of new assignment we have hitherto considered, are those in lnirhat_ 
 which the trespass complaineii of, or the place in which it was committed, necessary 
 have been wholly mistaken or evaded by the defendant in his plea. And to reply to 
 iii these cases the plaintiff merely new assigns, without taking any other P*""*! »°<i 
 notice of the plea than stating that it was wholly foreign to the true ground ^^° ^_ 
 of complaint, and that it does not at all meet the declaration. But the sign, 
 same cause, viz. the generality of the declaration, which, as we have seen, 
 often gives rise to a plea entirely foreign to the real cause of action, may 
 sometimes have the effect of producing a plea whereby some of the tres- 
 passes which the plaintiff complains of are answered, but others are left 
 entirely unnoticed. Thus, where the plaintiff complains in his declaration 
 that the defendant on a certain day, " and on divers other days and times 
 between that day and the commencement of the action," committed tres- 
 passes in the plaintiff's close, the plaintiff will bo at liberty under this al- 
 
 {z) 2 Salk. 453; 6 Mod. 117; Willes, c. 300 c. 5th ed.; see the form, posi, vol. iii. 
 223; 2 Bla. Rep. 1089; 1 Saund. 299 b, (b) See 16 East, 285; 16 id. 82, 86; 1 
 
 note. Saund. 299 o. 5th edit. 
 
 (a) Dyer, 264; Cro. Jae. 594; Cro. Eliz. (c).Fost, 632,633; 1 Saund. 300 b, note, 
 
 865, 492; Bro, Tresp. 203; 1 Saund. 299 5th ed. 
 
 (2) Hollock V. Bobinson, 2 Caiues, 233; EUice v. Bayer, 8 Wend. 603. 
 
630 FOKMS AND PARTS OF 
 
 II. THE legation to prove any number of acts of trespass committed by the de- 
 4thi"'N fendant within the space of time mentioned, in any part of the close, 
 assign- ^^ Now it may happen that the defendant claims a right of way, or common, 
 ments. ^c. in the plaintiff's close, and as he has no means of tolling from the de- 
 claration whether the plaintiff's cause of complaint is confiaed to acts 
 committed in the exercise of such right of way or common, &c., or wheth- 
 er any other acts of trespass are complained of, he is allowed to assume 
 the former, and may consequently justify under such alleged right. In 
 this case, if the plaintiff dispute the existence and validity of the right 
 [ "^1 J of way or common, he will of course traverse *the defendant's plea. But 
 the effect of such traverse without any new assignment, will be to confine 
 the issue to the question of the right of way, &c. as pleaded by the de- 
 fendant ; and if this should be found in the defendant's favor, he will be 
 entitled to a verdict {d). If therefore the defendant has committed any 
 acts of trespass, which, supposing him to be entitled to the alleged right 
 of way, &c., would not be justified by it, it will be necessary for the plain- 
 tiff not merely to traverse the plea, but also to new assign in respect of 
 such other trespasses, and aver in his new assignment that the action was 
 brought ax well for the trespass or trespasses mentioned in the plea, as for 
 the trespasses newly assigned (e). Thus, where the plaintiff complained 
 in the declaration that the defendant had committed trespasses in his closes, 
 and the defendant pleaded that one of the closes was called Blackacre,'and 
 .the other Whiteacre, and pleaded that they were his freehold, the plaintiff 
 traversed that Blackacre was the defendant's freehold, and new assigned in 
 respect of trespasses in twenty acres other than Whiteacre ; upon this it 
 was objected, that by new assigning, the plaintiff had waived the former 
 pleadings as to all, and therefore ought to. have omitted the traverse; 
 but the Court disallowed the objection, and held that as the defendant had 
 pleaded in respect of some of the places in which the plaintiff intended to 
 lay the trespass, the plaintiff was at liberty to answer as to that part, and 
 that the defendant was not entitled to waive his plea thereto and plead to 
 all de novo (/). So where an action is brought for fishing in a certain 
 river, being the plaintiff's fishery, and the trespass intended by the decla- 
 ration is for fishing to the extent of two miles and upwards ; if 1;he defend- 
 ant plead that he is seized in fee of ten acres adjoining the river and pre- 
 scribes for a free fishery in the river along the side of the ten acres, the 
 plaintiff ought not merely to traverse the prescription, and go to issue upon 
 it, because at the trial he would not be permitted to give evidence of any 
 act of fishing by the defendant, either above or below the ten acres, for 
 the question would be confined to the prescription only ; but the plaintiff 
 should also new assign and state that the trespass complained of was not 
 only for fishing in the river adjoining the ten acres, but also above and be- 
 low the same, and then the defendant will be under the necessity of giving 
 some answer to the whole trespass (^). In this case it has been observed, 
 that without a new assignment the plaintiff would run a great risk of be- 
 ing tricked ; for if the prescription were found for the defendant, he would 
 succeed in the action, though guilty of almost the whole trespass for which 
 the action was brought (g-). Upon the same principles, in the case before 
 
 {d) 1 Smnd. 300 b, c, 5th ed.; and'see 2 S. C. 
 Campb. 175, 176. (/) Cro. Eliz.812,and see 7 B. & C. 346; 
 
 (e) 1 Siund. 300 b, o, 7 B. & C. 346; 9 D. 9 B. & B. 897, S. C. 
 & E. 897, 8. C. 9 B. & C. 618. 4 M. & B. 290, (g) 1 Saund. 800 o, 6th edit. 
 
REPLICATIONS TO A SPECIAL PLEA. *632 
 
 adverted to of a right of way, &c. pleaded by the defendant, *where the «■ ""^ 
 plaintiff disputes the alleged right, and also affirms that the defendant has 4tMy°^New 
 committed trespasses in other parts of his land, he should traverse the assign- 
 right of way, and new assign for trespasses' extra viam (A). ments. 
 
 It will be observed to be perfectly clear that the mode of pleading by ^^^°^_ 
 traverse and new assignment, is inapplicable where only a single act of gignment 
 trespass is complained of in the declaration ; but where the declaration is is unneces- 
 capable of covering several trespasses, and the defendant pleads some f*""? **"* 
 matter of justification which only applies to part, it seems to be open to the ^ " 
 plaintiff both to traverse the justification and to new assign in respect of 
 the trespasses unanswered in all cases of trespass, whether to the person 
 or to personal or real property. And although where only a single act of 
 trespass is complained of, this mode of pleading would in general be ob- 
 jectionable {i) ; yet where the trespass is of a continuing nature, as in the 
 case of imprisonment, or remaining in possession of a house or goods un- 
 der color of process, the plaintiff may it should seem dispute the writ, 
 &c. and also new assign in respect of a continuation of imprisonment, 
 possession, ,&c. unauthorized by the process even supposing it to be valid (A). 
 
 In the course of the preceding pages it has been more than once inci- 
 dentally observed, and from the whole tenor of what has been said on the 
 subject of new assignment it will be collected, that it can never be neces- 
 sary for the plaintiff to new assign where there has been only a single act 
 of trespass, except, as we have lately seen, where that act has been of a 
 continuing nature, (in which case it may perhaps more properly be said to 
 consist of several acts of trespass,) or except where the plea of liberum 
 tenemenlum has rendered a particular description of the locus in quo neces- 
 sary. And in general, where a new assignment is unnecessary, it will be 
 improper and sometimes fatal to the plaintiff's right to recover. It has 
 been shown that in general the object of a new assignment is to correct 
 an error or affected error in the defendant's plea, and that (where there is 
 no traverse of the plea) it operates as an entire waiver and abandonment 
 of the particular trespass justified by the plea (/). And upon this ground, 
 in a case.where the plaintiff brought trespass for false imprisonment, and 
 the defendant justified under process, which was in fact irregular, but the 
 plaintiff (instead of traversing the plea as he ought to have done, and rely- 
 ing on the irregularity,) new assigned that the trespass complained of was 
 upon another and a different occasion, it was held that *he was bound to [ *638 ] 
 prove a new and substantive trespass wholly unconnected with the process 
 and that as there was only one arrest and imprisonment proved, which 
 would have been authorized by the process had it been regular, it was an- 
 swered by the plea, and the defendant was therefore entitled to a ver- 
 dict {m). Upon the same principle, where the defendant described the 
 place in which the trespass was alleged to have been committed in his plea, 
 
 (A) 1 Saund. 300 o. 5th edit.; 9 B. & C. 624. 626; post, 635. 
 
 613; 6 Bing. 196, 2 Bing. 26. (0 Ante, 628. 
 
 (i) Thomas v. Marsh, 6 Car. & P. 596. (m) 16 East, 82. Where the trespass 
 
 (&) 1 Bing. 317; 2 Campb. 175; 3 Taunt, charged is a single act, hut is committed iu a 
 
 425. As to replying de injuria, and new as- more violent manner than the subject of jas- 
 
 signiQg, iu an swer to a plea justifying under tification authorized, this should, it seems, be 
 
 a jkri facias, 4 Bing. 729; S. C. in Error iu put on the record in a replication, and not as 
 
 1 M. & P. 783; and 2 Y. & J. 804; mite, 610, a new assignment of a distinct trespass, 7 
 
 612. See further as to Excess, ante, 592, S9S, Moore, 38 ; ante, 592, 598, 632, pott, 636. 
 
83 POEMS AND PAETS OP 
 
 II. THE and justified under a right of common there, an& the plaintiff new assigned^ 
 ithiTN setting out the abuttals of the lucus in quo, and alleged in the usual form 
 assign-, that the closes newly assigned were other and different closes than the place 
 ments. mentioned in the plea, and it appeared at the trial that they were the same, 
 it was held the defendants were entitled to a verdict on the new assign- 
 ment. And the Court observed, that the plea of not guilty to the new as- 
 signment put the whole of it in issue, a part of which was that the closes 
 were different from that mentioned in the plea (n). 
 
 Such being the effect of the new assignment, where only a single act of 
 trespass has been committed, it is equally plain that where only one such 
 act is charged in the declaration and is justified by the defendant, the plain- 
 tiff cannot traverse the defendant's plea and also new assign. In a case 
 where the plaintiff complained of a single act of trespass in each count 
 of the declaration, and the defendant justified each of the trespasses thus 
 charged in his pleas, and the plaintiff traversed the matter alleged in jus- 
 tification, and also new assigned in respect of other acts of trespass ; the 
 Court held, on demurrer, that this mode of pleading was objectionable 
 on the ground of duplicity, and that it was an attempt by a new assign- 
 ment to amplify the cause of action stated in the declaration : and they 
 observed that the object of a new assignment was to lay out of the question 
 all that the defendant had pleaded, by saying that the trespass stated and 
 justified by the defendant was not that which the plaintiff had complained 
 of in his declaration (o). So, in another case, where the plaintiff alleged a 
 single act of trespass in his declaration, and the defendant pleaded a justi^ ■ 
 fication thereto, to which the plaintiff replied de injuria, and also new as- 
 signed that the defendant committed trespass at other times, the Court 
 held it to be clear that where a single act only of trespass was laid, and 
 not di-'ersis vicibus et diebus, and that act was covered by the plea, there 
 could be no new assignment {p). 
 
 Again, as the object of a new assignment is to correct an error in the 
 r*634 1 pls^) ^°<^ to aver that the defendant has omitted to answer the *whole or a 
 part of the true ground of complaint, it can never be necessary to new as- 
 sign where the defendant in his plea justifies or attempts to justify all the 
 trespasses in respect of which the plaintiff proceeds. Thus, whfere the dec- 
 laration charged that the defendant assaulted and imprisoned the plaintiff, 
 and during such imprisonment assaulted and struck him, and the defendant 
 justified an arrest and imprisonment under process, and also justified the 
 beating, in consequence of subsequent outrageous and violent conduct on 
 the part of the plaintiff, it was held, that although the defendant proved 
 the first part of his justification, viz. the arrest under process, yet as he 
 failed to show a sufficient cause for the battery, the plaintiff was entitled 
 to a verdict without having new assigned (g). 
 
 Upon the same principle, apparently, it has been held, in the case of a 
 license pleaded, that where the declaration alleged the commission of tres- 
 passes on divers days a'ld times, and the defendant pleads a license gen- 
 erally, viz. on the several days and times when, &c., without confining the 
 generality of the declaration by specifying any particular trespass or tres- 
 passes, he is bound to show a license co-extensive with the trespasses 
 proved ; and that therefore the plaintiff having shown a trespass prior to 
 
 (n) 15 East, 235. ( p) 7 Taunt. 156. 
 
 (o) 10 East, 73 and 81, n.; see also Thorn- (?) 6 B. & Aid. 220. 
 as V. Marsh, 5 Car. & P. 596. 
 
KEPLICATIONS TO SEVERAL PLEAS, 634 
 
 the license was entitled to a verdict on the general replication de injuria, «• ^"5 
 without any new assignment (?•). 4thly?New 
 
 Another case in which anew assignment is unnecessary, is where in tres- assign- 
 pass to real property the plaintiff describes the close by its name ia the ments. 
 declaration, (as since Reg. Gen. Hil. T. 4 W. 4, reg. V., he must do, New as- 
 subject to a special demurrer if omitted,) and the defendant pleads libe- no^neoes- 
 rum tenementum, without giving any more specific description of the lo- aary when 
 cus in quo than the plaintiff had done. We have seen that in all cases "*"« °^ 
 where the plaintiff had given no particular designation of the locus in quo or"de3crip- 
 the general plea of liberum tenementum compelled him to new assign, or tiou of 
 otherwise the only question at the trial was, whether the defendant could close is 
 support his plea by showing that he possessed any land within the parish dedlration 
 or place named in the declaration (s). But it has been considered, that as is now 
 wherever the plaintiff ascertains the place in his declaration, the plea of required 
 liberum tenementum cannot be supported (f). And at all events it is clear q^^ ^Jj^ 
 that it can be of no avail to the defendant in a case of this description, t. 4 W. 4, 
 where he merely follows the, name given by the plaintiff in his declaration, reg. V. 
 Thus, where a declaration stated a trespass in the plaintiff's close called 
 the Foldyard, in the parish of A., and the defendant pleaded that the said 
 close in the declaration mentioned was his freehold, which the plaiqtiff tra- 
 versed, and upon the trial it aj^peared that both the plaintiff and defend- 
 ant had a close called the Foldyard; it was held by *the Court that the [ *635 } 
 plaintiff having proved a trespass committed in his close, was entitled to 
 recover, and that there was clearly no necessity for a new assignment ; that 
 in order to compel him to new assign, as a name was given to the close in 
 the declaration, the defendant should have given some further description 
 in his plea : and that as the issue stood, the question was, whether the close 
 described in the declaration as the plaintiff's was the defendant's freehold 
 or not (m). And in another case, where the plaintiff after the plea of libe- 
 rum tenementum, hsid newly assigned that the locus in quo " abutted on 
 certain closes called A., B., and C, or some or one of them," to which the' 
 defendant again pleaded liberum tenementum ; and it appeared in evidence ~ 
 that the plaintiff had a close abutting on A., and the defendant a close 
 abutting on B. and C, it was held that the plaintiff was entitled to a ver- 
 dict on the new assignment {x). ' 
 
 It is of no avail to new assign an excess in committing a legal act, if in 
 law the excess were strictly justifiable, though not necessary in. fact to the 
 full exercise of the defendant's right or claim in the particular case. Thus,- 
 a commoner may pull down all the fences which are wrongfully erected 
 upon the common, although the destruction of part would have afforded 
 him the full benefit and enjoyment of his right ; and therefore if in tres- 
 pass against him the plaintiff new assign the excess, the defendant will be 
 entitled to a verdict thereon (jy). So the cutting or destruction of a gate 
 or other public nuisance to an highway, though an excess, not absolutely- 
 essential for the enjoyment of the public right, may, it has been supposed, 
 be justified, and if so, it w:ould be of no use to reply or new assign any 
 such excess (2^). , 
 
 (r) 11 East, 451; ante, 628, and note (r). see 5 Car. & P. 596, 597; 1 Cliltt's Gen. Prac. 
 
 (s) ^nte,6-28. 654. 
 
 (t) Per Willea, C. J., Willes' K. 222. (z) James v. Hayward, Cro. Car. 184; Lo- 
 
 (a) 1 B. &C. 489, 490; 2D. &B. 719,8. C. die v. Arnold, 2 Salk. 458; 1 Chitty's Gen. 
 
 (j;) 2 Bing. 49. Prao. 654. 
 
 (y) 7 B. & C. 346; 9 D. & R. 897; and 
 
 Vol. I. " 82 
 
635 FORMS AND PAETS OP 
 
 H. THE Lastly, A new assignment will frequently be rendered unnecessary by 
 4,m'^ii *^° "^® °^ several counts in the declaration when admissible. Thus where 
 assign- two assaults, &c. have been committed, and the declaration contains as 
 ments. many counts as are equal to the number of assaults, and the defendant 
 When new pleads a general issue to the whole, and a justification to one of the counts, 
 mmecessa- ^^^ plaintiff had better put the justification in issue, and in case the de- 
 ry in case fendant proves it, give evidence of the other assault upon the other counts, 
 of two or than make a new assignment ; for if the plaintiff fail in proof of the alle- 
 couiTts.- gation in the new assignment he cannot afterwards have recourse to the 
 second count, because, by the new assignment, he acknowledges that one of 
 the trespasses is justified, and has therefore abandoned one count, and re- 
 lied on the trespass mentioned in the new assignment ; he cannot therefore 
 avail himself of one and the same act of trespass, both on the new as- 
 signment and on the second count ; but if he could prove two trespasses 
 [ *636 ] besides that *which he has waived, he might then have recourse to the 
 
 second count (a). 
 Keplioa- There are some replications which rather partake of the nature of new 
 nature'of assignments than are properly and strictly so. As where the defendant 
 new as- has abused an authority or license which the law gives him, by which he 
 wgnments. became a trespasser ab initio (6). In an action brought for a trespass thus 
 committed, where the defendant pleads the license or authority, the plain- 
 tiff may reply the abuse (c). Such a replication it will be observed dif- 
 fers from a new assignment, because it does not operate in any manner as 
 a waiver or abandonment of the trespass attempted to be justified, but 
 states matter in confession and avoidance of the justification. 
 
 Of New . The instances we have given upon the law of new assignment have been 
 assign- confined to the action of trespass, because, as we have formerly observed, 
 other ac- ^^ rarely becomes necessary to new assign in any other form of action. 
 iions be- The following instances will however show that a new assignment may oc- 
 tides tret- (.jjp jjj jjjQst forms of action. Thus, if in action in case for the publication 
 of a libel, without mentioning the particular person to whom it was pub- 
 lished, the defendant has pleaded that he published it lawfully, as to mem- 
 bers of a committee of the house of commons, and the plaintiff proceeds 
 for a publication to other persons not members of the committee, he should 
 reply, or rather new assign, such illegal publication (rf). So, in an action 
 for an escape, if the defendant plead a negligent escape and voluntry re- 
 turn, the plaintiff should new assign a subsequent escape (e) ; and if in 
 case for disturbance of a right of common, by cutting turves, the defend- 
 ant plead that he cut the turves as servant of the lord of the manor, the 
 plaintiff may new assign that the defendant cut other turves for sale, and 
 not for the use of the lord (/). 
 
 In the action of replevin, as the plaintiff is bound to show the place in 
 certain where the taking was, it is said there can be no new assignment {g). 
 In the action of assumpsit for goods sold, &c. where the defendant plead 
 a judgment recovered, and the plaintiff has in point of fact obtained a 
 
 (a) 2 T. B. n2;per BuUerj J.; Jd. 177; 6 300 d, 5th edit.) 4 Bing. 729; 1 M. & P. 788, 
 
 Mod. 120; 1 Saund. 399. u. 6; Ante, 593, S. C. 
 
 (AJ See ante, 173, 594. (d) 1 Sannd. 183; 2 Campb. 175. 
 
 (c) See ante, 178, 598; 5 Car. & P. 596, (e) 1 B. & P. 413; 11 East,408, 
 
 597; 7 B. & Cres. 809; 1 M. & R. 497,8. ( f) Willes, 619, 620. 
 
 C; 8 Eep. 146: 4 Wils. 20; 3 T. R. 292; 1 [g) Freem. 238. 
 
 Hen. Bla. 555; 5 Taunt. 69, 72; 1 Saund. 
 
 pass. 
 
EEPLICATIOKS TO A SPECIAL PLEA. 636 
 
 judgment in a former action for goods sold, &c. but for different goods and «• thb 
 causes of action, the plaintiff ought not to reply MwZi^ie^recor^^, for insuch 4thiy°New 
 case he would be defeated by the production of the record ; but he should assign- 
 reply that the causes of action mentioned in the declaration were not the meats, 
 same identical causes *of action for which the former judgment was recov- [ *637 ] 
 ered (A) (1). This replication is in some degree analogous in its object 
 and effect to a new assignment, but it will be observed that it is not strict- 
 ly a new assignment, inasmuch as it consists of a traverse of a material 
 allegation in the defendant's plea. 
 
 In point of form there are two modes of introducing the matter new as- Form of 
 signed. If the plaintiff traverse the plea as well as now assign after fram- °.^^ *^T 
 ing the replication to the plea as in ordinary cases, the form runs thus (i), ^^ ° ' 
 " And the said plaintiff further saith, that he issued his writ against the 
 defendant and declared thereon, rvot only for the said several trespasses 
 in the said second plea mentioned, and therein attempted to be justified, 
 but also for that the defendant, on, &c." {stating the matter new assigned) 
 (k) ; but if the plaintiff merely new assign, then the form is thus, " And 
 as to the said plea of the defendant by him secondly above pleaded, the 
 plaintiff saith, that he, by reason of anything by the defendant therein 
 alleged, ought not to be barred from having and maintaining his aforesaid 
 action thereof against the defendant, because he saith, that he issued his 
 writ against the defendant, and declared thereupon, not for the said sup- 
 posed trespasses, in the introductory part of the said second plea mention- 
 ed, but for that the defendant, on, &c." (stating the matter new assign- 
 ed) (J). A new assignment being in the nature of a new declaration, should 
 be equally certain as to time, place, and other circumstcmces (m), and it 
 must be negatively, that the trespasses mentioned in the plea were not 
 the same as those for which the plaintiff complained, but some other tres- 
 passes must be shown (w). If the new assignment be in another close or 
 place, the plaintiff should give the place a name, or otherwise describe it 
 with some certainty (o), and which, on not guilty thereto, must be proved 
 as stated (;?), and if it be in the same close, it is said the particular spot 
 should be set forth in such a manner, that a plain difference may be perr 
 ceived between the place newly assigned and that mentioned in the plea 
 (^q) ; but where a right of way is pleaded, it is usual to new assign extra 
 viam, without showing in what particular part of the locus ifi quo (r). 
 
 *When the defendant justifies under a right of common, or way, &c. at [ *638 ] 
 particular times of the year, or in particular parts of the. close, &c. the 
 
 (A) 6 T. R. 607; 3 B. & C. 235; 7 Bar. & (ra) 3 Leon. 92; post, vol. iii. notes, 
 
 Cres. 809; 1 M.1 & R. 497; see the form id. (o) Dyer, 264 a. 23 b, pi. 147; 1 Saund. 
 
 andyosi, vol. iii.; 3 Went. 151; semble, that 299 o.;,Vin. Abr. Novel Assignment, A.; iEtro. 
 
 the plaintiff ml^t new assign that the action Abr. Trespass, 203; see the forms, post, 
 
 is brought for different promises, post, vol. vol. iii.; 2 Co. 6 a. 18 b; 2 Andr. 103; Benl. 
 
 iii. and notes. & Dal. 177; 2 Bing. 49; 1 B. & C. 489; 2 D. 
 
 (i) See forms, post, vol. iii. et seq.; and see & R. 719, S. C. 
 
 a form in trespass, 5 Car. & P. 596. Cp) Com. Dig. Pleader, 3 M. 34; Vin. Ab. 
 
 (fe) 3 B. & B. 119; 6 Moore, 330, S. C; 1 Trespass, U. a, 4, pi. 12, &c.; Bui. N. P. 82; 
 
 Saund. 300. 1 T. R. 479. 
 
 (Z) See forms, post, vol. iii. et seq.; 2 Co. 6 (g) See note (m) supra ; Vin. 4b. Tres- 
 
 a, 18 b; 1 Saund. 300 a. pass, TJ. a, 4, PI. 3, 
 
 (m) Com. Dig. Pleader, 3 M. 34; Vin. Ab. (r) Post, vol. iii. Sed vide Vin. Ab. Tres- 
 
 Trespass. V. a. 4, pi. 13; Bao. Abr. Trespass, pass, V. a, 4, pi. 3. 
 I. 4. 2; Dyer, 264 a. 
 
 (1) VideSnider v. Croy, 2 Johns. 227. 
 
638 POEMS AND PARTS OP 
 
 II. THE plaintiff may new assign that the trespasses -were committed, " at other 
 Ai^^\ times, and on other occasions, and for other and different purposes than 
 assign- ^'^ those mentioned in the plea ;" or that the defendant, " in a greater degree, 
 ments. and with more force and yiolence than was nevessary for removing the sup- 
 posed obstructions to the said supposed way, &c. cut down the gates, &c." 
 (s). The new matter assigned must be consistent with the declaration, 
 and not varying from or more extensive than the trespasses therein enu- 
 merated (t), or those which the defendant has answered in his plea; for 
 a new assignment is merely to avoid the effect of the plea, which can only 
 operate upon the trespasses thereby admitted («.). It should also only be 
 of material matter, and therefore, if the plea set up a right of way, or 
 common, &c. at all times of the year, the new assignment should not be, 
 that the defendant " at other times, <fec." time in that case being immate- 
 rial ; and in action of trespass against several, if some of the defendants 
 suffer judgment by default, and the others plead a justification, the new as- 
 signment should be as to all the defendants, and not merely to those who 
 Jiave pleaded, for that would be a departure (a;). 
 
 signment. 
 
 Conclusion The conclusion of a new assignment must be with a verification, in order 
 of new as- ^jjg^^ ^jjg (Jefendant may have an opportunity of answering it (^). After 
 stating the matter newly assigped, the form usually is thus : " and which 
 said trespasses above newly assigned, are other and different trespasses 
 than the said trespasses in the said second plea mentioned, and therein at- 
 tempted to be justified ; wherefore, inasmuch as the defendant hath not 
 answered the said trespasses above newly assigned, the plaintiff prays 
 judgment, and his damages by him sustained, on occasion of the commit- 
 ting therereof, to be adjudged to him, &c." {z). And though with respect 
 to the latter part' of this conclusion, it has been said that it would be more 
 correct if it were to stop at the words, " et hoc paratus est verificare" 
 without praying judgment against the defendant, for not answering the 
 trespasses newly assigned when it was impossible he should answer it be- 
 fpre it was alleged (a) ; yet it may be observed that matter newly assign- 
 ed is always considered as having been already stated in the declaration, 
 and consequently the defendant might have answered it if heliad thought 
 fit to plead to the injury really intended to be complained of. 
 
 [ *639 ] *A new assignment being, as already observed, in the nature of a new 
 
 Pleas to declaration, and dismissing the previous pleading from consideration, so far 
 
 sf m^' tB ^^ respects the. matter newly assigned, the defendant should plead to it pre- 
 
 " cisely as to a declaration (6), either by denying the matter newly assigned, 
 
 by the plea of not guilty, &c. (c) (1) or by answering it by a special plea 
 
 of matter of justification {d), and he mayplead several pleas (e). As the 
 
 plaintiff avers that the trespasses newly assigned are other and different 
 
 (s) See forms posJ, vol!, iii. fikSioreplying {z) See the form, 2 Co. 6. a, 10 b; East, 
 
 this, see ante, 592, 593, 638, n. (m). Ent. 608; post, vol. iii. and 9 Wentw. Index. ■ 
 
 (0 Vin. Ab. Trespass, U. a,' 4. pi. 19; cxxiv. 
 Winch. 65; 4 Leon. 15, 16; 10 East, 79, 81; (a) Freem. 238. 
 7Taunt. 156;' araic, 632,633. (b) Gouldsb. 101; Moore, 540; Cro. Eliz. 
 
 («) 10 East, 80. 580,8. C. 
 
 (x) 2 Leon. 199; Com. Dig. Pleader, F. 11; (t) See the form, post, vol. iii.; Bro. Ab. 
 
 jpost, 645. Trespass, pi. 359. 
 
 (y) Bae. Ab. Trespass, I, 4, 2; Lutw. 1401 ; (rf) Bro. Ab. Trespass, pi. 168, 263. 859. 
 I Saund. 108. (e). Bao. Ab. Trespass, I. 4. 2. 
 
 (1) Vide Pratt v. Groome, 16 East, 235. 
 
REPLICATIONS TO A SPECIAL PLEA. 
 
 639 
 
 to those mentioned in the plea, he waives or abandons the trespasses which ^^- t™ 
 the defendant has justified, and it is not necessary to plead over again to 4ty,iy_ jjfg^ 
 the new assignment any matter of justification necessarily covered by the assiga- 
 plea ; as if common of pasture at all times of the year be pleaded and the ™ent3. 
 plaintiff new assigns that the defendant entered at other times, the right 
 of common of pasture cannot be set up in the plea to the now assignment 
 (/). So the defendant cannot plead to the new assignment, that the place 
 (g") or trespass, &c. mentioned therein, is the same as that mentioned in the 
 plea ; and if in truth they are the same, the defendant should plead not 
 guilty, and take advantage of it in evidence, as the plaintiff woald be 
 estopped from proving any trespass in the same place, &c. (A). Eor the 
 same reason, the defendant cannot justify at a different place, and traverse 
 the place mentioned in the assignment (i) ; and when the plaintiff traverses 
 the plea, as well as new assigns, the defendant cannot, as to the matter 
 answered in the plea, plead new matter, but must stand by his plea (A). 
 If the new assignment be bad, the defendant should demur, and it may be 
 frequently necessary so to do, if the defendant wish to avail himself, of 
 his plea of liberum tenementum Q). 
 
 In the action of trespass quare clausum /regit, where the plaintiff new Suffering 
 assigns, it often becomes prudent to suffer judgment by default to the new ^y d^*"ft 
 assignment Qm), or perhaps since the stat. 3 & 4 W. 4, c. 42, sect. 21, to new as- 
 permitting a defendant by leave of a judge, in some actions, to pay money signment. 
 into Court, to do so, and plead such payment. This arises from the pro- ^^ ^^^° 
 visions of the statute 22 & 23 Car. 2, c. 9, s. 136, as to costs. It has 
 been determined upon the construction of that statute, *that a certifi- [ ^^^ J 
 cate to entitle the plaintiff to full costs, where the damages are under 40s., 
 is unnecessary, whenever it appears from the whole record that the free- 
 hold did or did liot come in question (w). And it has been held in conse-" 
 quence, that when there is a special plea and a new assignment, and the 
 plaintiff recover^ upon the new assignment, he will in general be entitled 
 to full costs, whether the special plea be not traversed, or whether it be 
 traversed and found for the defendant (o). This often renders it danger- 
 ous to plead to the new assignment, and particularly so when the defend- 
 ant has a good case upon his special pleas, since, notwithstanding he may 
 succeed on his pleas, and thus folly answer the whole matter substantially 
 in .dispute, the plaintiff will be entitled to the general costs of the action, 
 if he can prove any trifling act of excess on the part of the defendant. 
 In cases of this description, it is therefore often expedient to suffer judg- 
 ment by default to the new assignment, and thus at the trial to confine the 
 matters of dispute to those which are answered by the pleas ; for although 
 
 (/) Gouldsb. 191; Moore, 540; Cro. Eliz. (I) 2 Bing. 49; Dyer. b. pi. 147. 
 690, S. C; and see the case in note (A) (m) See 1 Saund. 300, n. And see the 
 
 irifra. note of the editors of the 5th edition, in which 
 
 ig) Moore, 460; Jenk. 6th Cent. 275. the oases on this subject are all collected, and 
 
 (k) Supra, Taote (/■); Vin. Ab. Trespass, the result very perspicuously stated. And see 
 
 V. a, 4, pi. 10; Bac. Ab. Trespass, I. 4, 2; 1 Tidd, 9th edit. 966, 973. 
 Saund. 299 c. 115; Cro. Eliz. 355, 493 ; 14 H. (») 2 Hen. Bla. 2; id. 341; 7 T. R.( 
 
 8, 4. pi. 3; Bro. Ab. Trespass, 168; 27 H. 8, 659. 
 7, pi. 21; Bro. Ab. Trespass, 3. (o) 2 Lev. 234; 2 Stra. 1168; 1 East, 350; 
 
 (i) Bro. Ab. Trespass, pi. 168; Vin. Ab. 3 B. & Aid. 443. The oases in 4 Taunt. 48, 
 
 Trespass, U. a, 4, pi. 9, 10, 15. and Cookerell v. AUanson, HuUock on Costs, 
 
 (k) Cro. Eliz. ?12; Bac. Ab, Tresjiass. I. 76, seetn -scarcely reconcilable with the atithor- 
 
 4, 2. ities before mentioned. 
 
340 FORMS AND PARTS OP 
 
 n. THE this mode of proceeding enables the plaintiff to obtain costs as upon a 
 ^°"^^ iudo-meat by default, if he think proper, yet if he proceed to trial on the 
 S- special pica, and fail, the defendant will be entitled to the general costs : 
 ments. for the plaintiff might have entered a nolle prosequi as to that plea, and 
 assessed his damages on the new assignment before the sheriff, and conse- 
 quently need not have proceeded to trial (jp). The defendant must, how- 
 ever, take care that a plea of not guilty be not left entire upon the record, 
 for as the matters newly assigned are considered as virtually contained in 
 the declaration, it has been held that the effect of a general plea of not 
 guilty to the whole declaration is to prevent the plaintiff from availmg 
 himself of the judgment by default to the new assignment, by assessing 
 the damages before the sheriff, and to compel him to go to trial notwith- 
 standing "such judgment {q). The defendant, therefore, where he has 
 originally pleaded the general issue, and is afterwards desirous of saffer- 
 ing°jadgment by default to a new assignment, should when he suffers 
 such judgment, enter a retraxit of the plea of the general issue, as far as 
 the same relates to the trespasses newly assigned. It is justly observed 
 that there is nothing incongruous in this, since the decisions upon this 
 point have proceeded entirely upon the ground that the trespasses newly 
 assigned are virtually included in the declaration (r). And it has accor-^ 
 dingly been decided, that where the defendant adopted this course, andaf:- 
 terwards obtained a verdict upon one issue going to the whole cause of 
 r «g^-|^ 1 action, (exclusive, of *course, of the trespass newly assigned,) he was en- 
 '- titled to the costs of trial (s). 
 
 Eeplioation To the plea or pleas to the new assignment, the plaintiff should reply 
 to a plea to precisely as to pleas to a declaration, and if the plea be such as would re- 
 anew as- ^^jj.^ ^ new . assignment, if pleaded to a declaration, the plaintiff should 
 Bignmen . ^^^-^ ^^^ assign to such plea (f). 
 
 The Conclusion of replications, in particular instances, has already 
 been pointed out (m). We have seen that eyerj' replication must, in point 
 oi form, conclude either to the country or ivith a verification (x). We 
 have also shown when or not a prayer of judgment is or not essential or 
 advisable {y'). It may here suffice to observe, that when a replication de- 
 nies the whole of the defendant's plea, containing matter of fact, it should 
 conclude to the country, thus : " and this the plaintiff prays may be in- 
 quired of by the country, &c." (z) (1). And it is an established rule appli- 
 cable to every part of pleading, subsequent to the declaration that when 
 there is an affirmative on one side, and a negative on the other, or vice 
 
 (p) 13 East, 191. fore, &e." 
 
 (q) 3 B. & B. 117; 5 Bing. 196; 2 M. (0 1 Saund. 299 o. See the forms referred 
 
 & P. 859, S. C; 1 T. & J. 354; 1 B. & 0. to, ia 9 Wenlw. Ind.; 2 Co. 6, and poa, vol. 
 
 278. iii. 
 
 (r) 1 Saund. 300 b, u. (/), 5th edit. («) Ante, 599 to 601, and see, as to the 
 
 (s) 9 B. & C. 613; and see per Best, C. J., conclusion in general. Com. Dig. Pleader, F. 5, 
 
 5 Bing. 199. The form of such relraxil, as E. 82; Co. Lit. 303 a. All affirmative plead- 
 
 ^ given in 1 Saund. 5th edit, ut supra , is as fol-. jngs which do not conclude to the country, 
 
 lows, "and the said defendant, relinquishing must conclude with a verification, Steph. 2d ed. 
 
 his said plea by him first above pleaded to the 485. Origin of the rule, id. 486. 
 
 said declaration, so far as the same plea re- (x) Ante, 599, 600. 
 
 lates to the said trespasses above newly as- (y) Ante, 602. 
 
 signed, says nothing in barer preclusion of the (z) lSaund.103; 1 Burr. 816; 2 /d. 1022; 
 
 Baid trespasses above newly assigned; where- Dougl. 94, 428; 2 T. R. 442, 443. 
 
 (1) And not *'of this he pitts himself oa tUe couutiy." Hartwell v. Hemmenway, 7 Pick. 
 117. 
 
REPLICATIONS TO A SPECIAL PLEA. 641 
 
 mrsa, the concksion should be to the country (1), although the affirmative »■ ™S! 
 and negative be not in express words, but only tantamount thereto (a). 4th^y°New 
 It may also be laid down as a safe rule, that where a defendant cannot assign- 
 take any new or other issue in bis rejoinder than the matter he had before ments. 
 pleaded without a departure from his plea, or where the issue on the re- 
 joinder would be the same in substance as on the plea, the plaintiff should 
 conclude to the country (6) ; and it is not material in this case, whether 
 the replication contain a formal traverse, for where a traverse comprises 
 the whole matter of the plea, the replication may still conclude to the 
 country (c) (2). . It suffices that there is a good traverse of the substance 
 of the plea (d). In debt on bond for not accounting, the defendant plead^ 
 pd that he did account. Replication that defendant received «£2000. for 
 which he did not account. Rejoinder that he received it *from particular [ *642 ] 
 persons, and that he accounted for the same. It was held that a surre- 
 joinder that the monies mentioned in the replication, and those mentioned 
 in the rejoinder, were different monies, might conclude to the country (e). 
 This conclusion is also proper, where a particular fact is selected and de- 
 nied, without any inducement or formal traverse (/). But the plaintiff 
 is still at liberty, where he only denies one of several facts, and not the 
 whole substance of the plea, to commence his replication with an induce- 
 ment, and formally to traverse the particular fact, and conclude with a 
 verification, though this, as already observed, tends to unnecessary pro- 
 lixity, delay and expense (g-) ; and when this form is adopted, the conclu- 
 sion should be with an averment and prayer of damages, or of the debt 
 and damages (A). 
 
 It is a general rule that when new matter is alleged in replication, it Must be 
 should conclude with an averment or verification (3) in order to give the de- ^^'^L* 
 fendant an opportunity of answering it, and an appropriate prayer of judg- "ion when 
 ment for debt and damages or damages only, according to the form of ac- newmatter 
 tion and the subject-matter of dispute (i), and not merely unde petit ju- »» stated, 
 dicium si actione precludi debet .{j}. But when the defendant would not 
 be at liberty to traverse or answer the new matter, without a departure, ' 
 the replication may, notwithstanding the introduction of new matter, con- 
 clude to the country ; as to debt on an award the defendant plead no award, 
 and the plaintiff reply an award, and set forth a breach, it is said that he 
 may conclude to the country (k), though a conclusion with a verification is 
 most usual Q"). And in an action of debt on a recognizance of bail in the 
 same Court, where the defendant pleads that no ca. m. issued against the 
 principal, a replication setting out the ca. sa. and concluding with a veri- 
 
 (a) 1 Saund. 108; 2 New R. 363. (A) Id.; Say. 234; 1 Salk. 4; 1 Burr. 319) 
 
 (4) 1 Saund. 103 b; and see the reason, 2 2 T. R. 442, 443; 2 Marsh. 354. 
 
 Jrf. 189 190. (i) Fide Vivian «. Jenkins, 5 Nev. & Man. 
 
 M 1 Salk. 4; 1 Saund. 103 a, b. 14. 
 
 >/\ 2 T R 443 (i) 2 New Rep. 363, 364; 1 Saund. 103, n. 
 
 fe) 7 B.' &"e. 809. 1; 327, n. 1; 2 W. 63 g; Carth. 437; 1 Lutw. 
 
 (/) 2T. R. 349; 1 Salk. 4; 7 Lord Raym. 101; 2 Wil3..66; Dougl. 60; 2 T. R. 576; 4 
 
 641; 1 Saund, 108 a, b; Sayer, 234. Mod. 376. 
 
 (?) Id ; 2 T.R.442,443; 1 Burr, 320, 321; (fr) 1 Saund. 327, note 1, cites 3 Lev. 165. 
 
 2 Str. 871; 2 Wils. 173; Dougl, 428, (0 Post, vol. iii. 
 
 »- 
 
 (1) Vide Labagh v. Canteeti, 13 Johns, 274; Bindon u. Robinson, 1 Johns. 516. 
 
 (2) Vide Manhattan Company v. Miller, 2 Caines,. 60 ; Snider ». Croy, 2 Johns. 428. Pateher 
 Sprague, Id. 452; Bindon v. Robinson. 1 Johns. 516. 
 
 (3) Hamp. Manut Co. », BillingB, 17 Pick. 87. 
 
642 
 
 POEMS AND PABTS OP 
 
 III. THE 
 
 CONCin- 
 
 SION. 
 
 fication by the record, and a prayer that the record may be inspected by 
 the Court is good, though no formal issue be joined (m) (1). If the new- 
 matter introduced in the replication be of a negative nature, no conclusion 
 seems to be necessary, though it is usually adopted by using the common 
 ■verification, " and this the plaintiff is ready to verify, &c." (n). 
 
 Estoppel. Where matter of estoppel is replied, the plaintiff should expressly rely 
 on it, or he will lose the benefit of it (o) (ii), and it is usual to conclude 
 
 [ *643 J the replication in that case, with a verification and prayer of "judgment, 
 if the defendant ought to be admitted or received against his own acknowl- 
 edgment, &c. to plead his plea i^q). But in this, and indeed all other rep 
 lications, it is sufficient, alter the proper verification, to pray judgment 
 generally, without pointing out the appropriate judgment (r) ; and where, 
 the word " certify " was by mistake inserted instead of " verify," the 
 Court appeared to consider the replication sufficient (s). And unless as- 
 signed specially as a cause of demurrer, a defect in the conclusion of a 
 replication is aided (0- 
 
 Where matter of record is relied upon, the plaintiff should conclude his 
 replication with a verification by the record (u). 
 
 Signature The Eeg. Gen. Hil. T. 2 W. 4. reg. 107, f orders, " that it shall not be 
 of counsel necessary that any pleadings which conclude to the country be signed by 
 counsel" {x). 
 
 III. QUALITIES OF A REPLICATION. 
 
 I. MUSI 
 
 ANSWER 
 
 THE FLEA. 
 
 The qualities of a replication, in a great measure, resemble those of a 
 plea (j), and are — First, that it must answer so much of the plea as it 
 professes to answer, and that if bad in part it is bad for the whole ; Sec- 
 ondly, that it must be conformable to, and not depart from the count ; 
 Thirdly, that it must present matter of estoppel; or must traverse or conr 
 fess and avoid the plea ; Fourthly, that, like a plea, it should be certain, 
 direct, and positive, and not argumentative, and also that it be triable ; 
 and, Fifthly, that it must be single. 
 
 1st. We have already pointed out the course which the plaintiff should 
 
 (m) 2 Marsh. 354, ace; 2 T. K. 576, sem- 
 bU contra. 
 
 (n) See Co. Lit. 303 a; 1 Show. 835; Ste- 
 phen, 2d ed. 487; Willes.e. 
 
 (u) 1 Saund. 325, note 4; 1 Co. 52 a; ante, 
 469, 603, 604, note (o). 
 
 (}) Posi, Tol. iii.; Willes, 11, 13. 
 
 (/•) Willes, 13; 1 Saund. 97 a; 4 East, 502, 
 509; Vivian v. Jenkins, 6 Nev. & Man. 11. 
 
 As to prayer of judgment in a plea in abate- 
 ment or bar, ante, 463, 464. 
 
 (s) Willes, 6, 7. 
 
 (0 16 & 17 Car. 2, o. 8; 4 & 6 Aim. o. 16, 
 s. 1; 1 Saund. 99, note 2. 
 
 (k) See post, vol. iii. 
 
 {x) Jervis's Rules, 71; Tidd, 672, 673, 
 693. 
 
 (y) Ante, 525. 
 
 (1) A replication to a plea of nul tiel corporation, in a suit by a bank, reciting the title of 
 the act of iucorporation and the date of its passage, and concluding to the country, is bad; 
 such a plea should conclude with a verification. The proper mode of pleading in such cases is, 
 to aver in the declaration that the plaintiffs are a corporation, setting forth the title of the act 
 creating the corporation, and the date of its passage. Onondaga County Bank v. Carr, 17 
 Wend. 443. , - 
 
 (2) See Howard t>. Mitchell, 14 Mass. 241. 
 
 t See American Editor's Preface. 
 
&0. 6# 
 
 adopt where the defendant has omitted to plead to a part of the plaintiff's i- m*s*' 
 demand, or where one of the defendants has not pleaded at all ; and that iHg^p^^., 
 the plaintiff's omission to adopt the proper course of proceeding thereon 
 will sometimes occasion a discontinuance (s). Where there are several 
 defendants in an action ex contractu, the plaintiff cannot enter a nolle pro- 
 sequi as to one of them, except upon a plea by him, which operates merely 
 in his personal or individual discharge without affecting the validity of 
 the debt, as bankruptcy or insolvency ; but in an action ex delicto, a nolle 
 prosequi as to one defendant does not in any instance discharge the others' 
 "(a). A replication should also answer so much of the plea as it professes 
 to *answer (1), or it will be a discontinuance (6). And it is a rule that [ *644 ] 
 .an entire replication bad in part is bad for the whole (2) ; as if to a plea' 
 of the statute of limitations to two counts of a declaration, the plaintiff 
 should reply that the accounts were between the pkintiff and defendant 
 as merchants, if this replication should be bad as to one of the counts it 
 is bad also to the other (c). But this rule does not apply where the mat- 
 ter objected to is merely surplusage {d~) ; and where a defendant sued aS 
 an executor or administrator has pleaded several judgments outstanding' 
 it would be a sufficient answer to the whole plea to deny ' the validity of one 
 of the judgments (e). 
 
 2dly. It is also a settled rule, that the replication must not depart from n. Mnai 
 the allegations in the declaration in any material matter (/) (3). But if »ot ^^ 
 the allegation in the declaration be immaterial, the replication may vary, ^^^jj^^ 
 and state another ground ; thus, in detinue, if the declaration state a bail- hoh, &o. 
 ment that is in general immaterial, and therefore if the defendant in his- 
 plea state a different bailment, the plaintiff may, without traversing that 
 in the plea, show the detention was wrongful without being guilty of a de- 
 parture (o-). A departure in pleading is said to be when a party quits or 
 departs from the case or defence which he has first made, and has recourse' 
 to another ; it occurs when the replication or rejoinder, <&c. contains mat- 
 ter not pursuant to the declaration or plea, &c. and which does not support 
 and fortify it (A) (4) . A departure in pleading cannot of course take place 
 
 * 
 
 (2) ^tiie, 523, S24; and see Com. Dig. (c) 1 Saund; 337 b, note 2. 
 
 Pleader, F. 4; W. 1, 2, 3; 1 B. & P. 411. (/) See the disoussionin Gledstane v. Hew- 
 
 (a) ^nte, 45, n. (y), 567, 568. itt, 1 Tyr. 445." 
 
 (6) Coin.Dig. Pleader.F. 4,W. 2; 1 Saund. (g) Gledstane v. Hewitt, 1 Tyr. 445; 1 
 
 888. See this rule illustrated, as it applies to Cromp. & Jer, 565. 
 
 a plea, ante, 523. The same principles apply (A) 2 Saund. 84 a, note 1; Co. Lit. 304 a; 
 
 to a replication. 2Wils. 98; Com. Dig. Pleader, F. 7, 11, 16; 
 
 (c) Com. Dig. Pleader, F. 25; 3 Tr. 876; 1 East, 39; 1 B. & C. 470; Tidd, 9th ed. 688; 
 Saund. 28, n. 3; 2 Id. 127. Stephen, 2d ed. 451. 
 
 (d) Id.; 8 T. B. 374, 377; 1 East, 219. 
 
 (1) Vide Marsteller v. M'Clean, 7 Cranch, 166. A replication which neither admits, denies,, 
 nor avoids the averments in the plea, is bad. Mason v. Craig. 3 Stew. & Port. 389; GibbinS' v. 
 Ogden, 3 Halst. 288. A good single replication to several pleas, as all containing the same 
 matter, must be good as to each plea singly. Lapham v. Briggs, 1 Williams, (Vt.) 26. 
 
 (2) Vide Martin v. Williams, 13 Johns. 268. 
 
 (3) Lindsay v. Jamison, 4 M'Cord, 93; Collins u. Waggoner, Breese, 26 ; Fowler v. Macomb, 
 2 Koot, 388. A departure in pleading, is where a previous ground in the pleading is abandoned 
 and a new ground assumed. Haley v. M'Pherson, 3 Humph. 104j M'Aden v. Gibson, 5 Ala- 
 bama, 341; Wells v. Teall, 5 Blaokf. 306; Allen v. Mayson, 3 Brevard, 207. 
 
 (4) Andrews v. Waring, 20 Johns. 160. Wyman v. Mitchell, 1 Cowen, 319. 14 Mass. 103. 
 Paine v. Fox, 16 Mass. 129; Keay v. Goodwin, 16 Mass. 1, 2; Hapgool.ti. Houghton, 7 Pick. 
 461; Dawes v. Winship, 16 Mass. 291; Little v. Blunt, 9 Pick. 488. 
 
 Vol. I. 83 . 
 
644 THE QUALITIES 
 
 II. MUST until the replication, but it mayarise in that orar.y subseqnentpleading (1). 
 PART^FEMi ^^ ^^ "°* allowed because the record would, by such means, be spun into 
 DEOLAEA- endless prolixity, for if it were permitted, he who has departed from and 
 uoK, &c. relinquished his first ground or plea, might, in every different stage of the 
 cause, resort to a second, third, or even further case or defence, and there- 
 by pleading would become infinite (i) ; and if parties were permitted to 
 wander from fact to fact, forsaking one to set up another, no issue could 
 be joined, nor could there be any termination of the suit Q). A depar- 
 ture may be either in the substance of the action or defence, or the law on 
 - which it is founded (/t) ; as if a declaration be founded on the common 
 law, and the replication attempt to maintain it by a special custom or act 
 of parliament (Q. So, if in replevin for taking the plaintiff's goods and 
 [ *645 ] chattels, to wit, a lime-kiln, the *defendant avows under a distress for rent, 
 and the plaintiff pleads in bar that the lime-kiln was afiSxed to the free- 
 hold ; this is a departure, the declaration being for goods and chattels, 
 and the plea in bar stating the property to be part of the freehold (m) (2). 
 And where in replevin for taking goods of the plaintiff, the defendant 
 made cognizance of the taking as a distress for rent upon a demise to the 
 plaintiff, and she pleaded in bar that she was a married woman at the time 
 of the demise, and when the rent accrued due it was held that such plea 
 in bar negatived the cause of action, as it was to be presumed the husband 
 was alive, so that the goods could not be the plaintiff's property (m). So 
 where in assumpsit by an executor on several promises, which were all 
 laid to have been made to the testator, to which the defendant pleaded the 
 statute of limitations, and the plaintiff replied a subsequent promise to 
 himself, the replication was held to be a departure, and therefore bad (o) 
 (3). A variety of other instances are collected in the digests {p). But 
 where in detinue on a bailment of a promissory note, to be re-delivered on 
 request, defendant pleaded that the note was deposited by plaintiff as a 
 pledge for the repayment to defendant of a loan of £50, and the replica- 
 tion stated a tender of £50, on a special demurrer, the replication was 
 held good, and no departure (g). If a declaration describe a bill or note, 
 as having been endorsed to the plaintiff by the payee, and the defendant 
 plead that indorsee was a married woman, it is no departure in*the repli- 
 cation to state that she endorsed by the authority of her husband (r). 
 
 (t) 2 Saund. 84 a, note 1; Stephen, 2d ed. (o) 2 Sannd. 63 g, 84; Wjlles, 29; 1 Salt. 
 
 458. , 28; 6 Mod. 809; 2 Stra. 890; 3 East, 409. 
 
 (j) Summary Treat, on Pleading, 92. (p) Com. Dig. Pleader, F. 6, 7, 8, 9. &o.; 
 
 (fc) Co. Lit. S04a; 2 Saund. 84 a. Bac. Ab. Pleas, L.; Vin. Ab. Departure; 1 
 
 (0 Co. Lit. 304 a; Com. Dig. Pleader, F. Archb. 217, 253. 
 7, 8; Carth. 306. (q) Gledstane v. Hewitt, 1 Cromp. & J. 565; 
 
 (m ) 4 T. R. 604 ; 2 Saund. 84 b. 1 Tyr. 460. 
 
 (n) 7 Taunt. 72. (r) Prince v. Brunette, 1 Bing. N. C. 435. 
 
 (1) Vide Sterns v. Patterson, 14 Johns. 132. Munroe v. Allaire, 2 Caines, 320. Bar- 
 low V. Todd, 3 Johns. 367. Spencer v. Southwick, 10 Johns. 259. 20 Johns. 163. 5 Oreenl. 
 481. 
 
 (2) See also Sibley v. Brown, 4 Pick. 137. 
 
 (3) An averment of the value of goods in a plea of plene administravit prceter, is not mate- 
 rial and traversable. A rejoinder averring that the defendant has assets but not more than 
 sufficient to pay and satisfy a judgment of upwards of $1000, was held not a departure from 
 a plea of plene administravit prater,, averring the goods unadministered to be of the value 
 only of $1. 
 
&c. 645 
 
 But a departure more frequently occurs in a rejoinder (5). Thus, if iu "• '"'st 
 an action of debt on an arbitration bond, the defendant plead that wo award J'°JJ'^„„ 
 was made, and the plamtiii in his replication set on an award, and assign deolaea- 
 a breach, it has been held that the defendant cannot rejoin that an award "o". &<»■ 
 was not tendered (1), or that the defendant hath performed, 5r been ready 
 to perform it (t) (2). If the award be in such case set out by the plaintiff 
 in his replication, and a fatal defect appear on the face of it, the defendant 
 may, it seems, demur (m) ; or, if the plaintiff set it out partially, the de- 
 fendant may set out the whole, *and then demur (a;). So, where in an ac- [ *646 J 
 tion on a bond conditioned for the payment of an annuity, the defendant 
 pleaded no such memorial as the statute 17 G. 3 required ; and the plaintiff 
 replied that there was a memorial which contained the names of the parties, 
 &c. and the consideration for which the annuity was granted ; and the de- 
 fendant rejoined that the consideration was untruly alleged in the memorial 
 to have paid to both obligors, for that one of them did not receive any 
 part of it ; it was held that this rejoinder, stating a new fact, was bad, as 
 being a departure from the plea (y). So, if bail plead no ca. sa. against 
 the principal, and in their rejoinder allege that the ca. sa. stated in the rep- 
 lication did not lie four days in the office, this is a departure (s). So, in 
 an action of debt on bond, conditioned for performance of covenants, if 
 the defendant plead performance, and the plaintiff reply, and assign a 
 breach, the defendant cannot rejoin any matterin excuse of performance (a). 
 So, where in trespass for impounding the plaintiff's mare, the defendant 
 pleaded that she was doing damage to the king in his forest of Waltham. 
 and the plaintiff replied a right of common in the forest, and the defend- 
 ant rejoined that the mare was mangy, and doing damage, and that there- 
 fore he took and impounded her ; this was held to be a departure from the 
 plea, because the plea was, that the mare was doing a private trespass to 
 the king in his forest, and that therefore the defendant impounded her, but 
 the rejoinder is, that the mare was mangy, which is a common nuisance (A). 
 And where in trespass for impounding the plaintiff 's ox, the defendant jus- 
 tified the taking damage feasant, and the plaintiff entitled himself to com- 
 mon of pasture for one ox, in the place in which, &c. and the defendant 
 rejoined that the plaintiff had surcharged the common with that ox, it was 
 
 <s) See Com. Dig. Pleader, P. 6, 7, 8, 9, (x) 11 East, 188. 
 
 &o. for the instances of a defective rejoinder, (j/) 4 T. R. 585; 2 Hen. Bla. 280, S. C; 16 
 
 and 2 S;mnd. 83, 8i, note 1; 188; 1 Saund. East, 41; see 11 East, 188. It should be ob- 
 
 117, note 3; 346 c. In trespass against three served, that the case in the text did not turn 
 
 for an assault and battery, all pleaded the gen- on the 53 Geo. 3, c. 141; but on tlie 17 Geo. 
 
 eral issue, and one justified in defence of his 3, c. 26, which requires that the deed shall 
 
 freehold. Replication unnecessary force by truly state the consideration ; and the defend- 
 
 him. A rejoinder that all the defendants did ant's rejoinder, therefore, contained an objec- 
 
 not use unnecessary force, was held bad on de- tion which applied more to the deed than the 
 
 murrer, as not pursuing the prior pleadings, 4 memorial. 
 B. &C. 704. (s) 1 Wils. 334; 16 East, 41; 7 B. & C. 
 
 (t) 2 Saund. 188; 1 Sid. 10; Stephen, 2d 800; see avte, 469. 
 edit. 452. As to rejoining that the award was (a) 2 Saund. 83 o; Co. Lit. 304 a; Com. 
 
 ■void on account of some extrinsic fact, see post. Dig. Pleader, F. 6, &c. ; see instances, Steph. 
 
 647. 2d ed. 453. 
 
 (u) 4 Salk. 72; 1 Saund. 103, note jl; 2 (4) 2 Wils. 96; 2 Saund. 94 b. 
 Saund. 62 b, note 5; 11 East, 188. 
 
 (1) See, however. Alien v. Watson, 16 Johns. 205, recognizing Fisher v. Pimbly, 11 East, 
 188. 
 
 (2) So, he cannot rejoin that the aivard was not final. Barlow v, Todd, 8 Johns. 868, 
 
646 ; THE QUALITIES 
 
 It. MDBT adjudged that the rejoinder was a departure from the plea, because there 
 HOT DE- .g ^ gi-eat difference between damap;e feasant and a surcharge of common, 
 
 DEOLARA- ■and the surcharge should have been pleaded at first (c). So, in debt on 
 
 Tios, &o. bond conditioned to perform the covenants in a lease, one of which was 
 that at every felling of timber, defendant would make a fence, the defend- 
 ant pleaded that he had not. felled any wood. Replication that he felled 
 wood, but made no fence ; and the court held that a rejoinder that the de- 
 fendant did make a fence, was a departure from the plea (c/). The plea 
 
 [*647 ] should have been that defendant felled wood, and made a fence, *and in 
 all these cases, to avoid a departure, the whole matter should be shown at 
 once in the plea (e). 
 
 But matter which maintains, explains, and fortifies the declaration or 
 plea is not a departure (/). Thus, if bail plead that no ca. sa. was duly 
 sued out and returned according to the practice of the Court, and the 
 plaintiff reply setting out a ca. sa. but directed to the sheriff of a wrong 
 county, the defendant may rejoin that the venue was laid in another coun- 
 ty, and that therefore the ca. sa. was not duly sued out Qg). So in tres- 
 pass for taking a horse, if the defendant justify for a distress damag-e fea- 
 sant, the plaintiff may reply that the defendant afterwards used the horse, 
 which shows that he was a trespasser ab initio (A) (1). So if in debt on 
 bond to indemnify the plaintiff from tonnage due to A. the defendant plead 
 nan damnificatus, and the plaintiff reply that A. distrained for the said 
 tonnage, and the defendant rejoin that nothing was due to A. for tonnage,! 
 this is not a departure, for if nothing were due there was in law no dam- 
 age (i). And it seems that in debt on bond conditioned to perform an 
 award, the defendant, though he pleaded no award made, may, to a repli- 
 cation setting out an award in part, rejoin setting out the whole award ver- 
 batim; by which it appeared that the award was bad in law, being made as 
 to matters not within the submission (A). The Court, on demurrer, con- 
 sidered that there was no departure, as the plea of no award meant no legal 
 and valid award, according to the submission (/c). And if a declaration 
 on an apprenticeship deed charge that the defendant would not instruct 
 the apprentice, and compelled him to leave his service, and the defendant 
 plead that the apprentice misconducted and absented himself, it Will be no 
 departure to reply that after the misconduct, &c, the apprentice offered to 
 return, &c. but the defendant refused ; for this supports, explains, and for- 
 tifies the declaration (/). And if the plaintiff vary in his replication from 
 this count or the defendant in his rejoinder from his plea, in time, place, 
 or other matter when immaterial, it is not a departure (2). As if in a 
 declaration, a promise be stated to have been made twenty years ago, and 
 
 (c) 1 Salk. 231; Willes, 638; 2 Saund. fi. fa., ante, 6\0; 1 M. & P. 783. 
 
 84 c. (i) Fortes. 341; Com. Dig. Pleader, F. 
 
 (d) Dyer, 253 b. 11. 
 
 (c) See Dyer, 253 b; Plowd. 102; Dyer, (&) 11 East, 188; U Id. 39 , sed vide 1 Sid, 
 
 102b,S,C. 180; 1 Wils. 122; 4 T. R. 585; 2 Hen. Bla. 
 
 ' (/) Com. Dig. Pleader, F. 11; 1 B. & C, 280, S. C. 
 
 466. ' (i) 1 B. & 0.460. And see an instance 
 
 (g) 16 East, 39. in which a surrejoinder, in an action upon a 
 
 (A) Id.; 1 D. &' R. 50; 5 Id. 615; 1 Sallf, bond for the fidelity of a :Olerk was held not 
 
 221; 3 Wila. 20; Cro. Jao. 148; ante, 1J2, to be a departure from the replication, 7 /(/. 
 
 179; replication, &o. to justification under "a 809. 
 
 (1) Darling v. phapman, 14 Mass. 103. 
 
 (2) Thompson u. Fellows, 1 Foster (N.H.) 425. 
 
OP THE EEPLICATION, &C. 647 
 
 when the defendant pleads the statute of limitations the plaintiff replies n- must 
 that the defendant did undertake within six years ; this is not a depar- ^^"^ "'^" 
 
 " PAUT FROM 
 
 turc because in this case the statement of the time in the declaration was' deolara- 
 immaterial (m). So, if in trespass for an assault at H. if the defendant tlon, &o. 
 plead *moliter manus imposuU to remove the plaintiff from his close at A., 
 and the plaintiff replies that he had a way over that close, it is not a de- 
 parture ; for in transitory actions the venue in the declaration is immate- 
 rial (n). In the case of a deed or other instrument, the plaintiff may [*648] 
 reply or show in evidence that it was really made on a day different to the 
 day of the date (o) ; and where a bill or note is stated in the declacation 
 to have been made on a day which appears to have been above six years 
 before the commencement of the suit, a subsequent promise or acknowl- 
 edgment within six years may be shown in evidence under the common 
 replication to the plea of the statute of limitations (p). But where time 
 or place, or any other circumstance, is material the plaintiff cannot, as we 
 have seen, vary from his previous statement of it (17) ; though where mat- 
 ter of defence has arisen pendirifr the suit, it may be pleaded puis darrein 
 continuance, relicii verificatione of the former plea. And if in an action 
 against a person as executor, he plead a retainer for a debt due to him- 
 self, and the plaintiff reply that he was only executor de son, tort, the de- 
 fendant may, by way of plea puis darrein continuance, rejoin that he has 
 since obtained letters of administration (r). 
 
 The only mode of taking advantage of a departure is by demurrer, 
 which may be either general (1) or special (s) ; and if the defendant or 
 the plaintiff, instead of idemurring, take issue upon the replication or the 
 rejoinder containing a departure, and it be found against him, the Court 
 will not arrest the judgment (f). 
 
 3dly. It Is a rule that a replication must either, first, present matter of m. must 
 estoppel to the plea, or secondly, must traverse, or, thirdly, confess and co™ain 
 avoid the matter pleaded by the defendant (m) (2). If the plaintiff do not estoppel 
 dispute, and cannot avoid the facts stated in the plea, but contends that oaiEA- 
 their legal operation is insufficient to defeat the action, he must demur to vekse, oe 
 
 ,, 1 ° ^ ' CONFESS 
 
 tue plea. _ _ and avoid. 
 
 4thly. Another quality essential to a replication is certainty ; and it is 
 said that more is requisite in a replication than a declaration, though cer- 
 tainty to a common intent is in general sufficient (x). Where the replica- 
 tion is only to apart of the plea, the part alluded to should be ascertained 
 
 (m) Com. Dig. Pleader, F. 11; 1 Lev. 110; (g) Ante, 257, 538, 644. 
 
 lO Mod. 348. (r) 2 Stra. 1106. 
 
 (n) Com. Dig. Pleader, F. 11; 1 Salk. 122; (s) 2 Saund. 84 d; 2 Wils. 96; quare if it 
 
 1 Lord Raym. 120. ought not to be a special demurrer, Com. Dig. 
 
 (0) 4 East, 477; see ante, 257, 258, ud vide Pleader, F. 10; 1 Saund. 117. 
 
 Tidd, 9th ed. 689; cites 1 Sails:. 222; 3 Lev. (t) Sir T. Raym. 86; 2 Saund. 84 d. 
 
 848; Stra. 22, 806. («) See ante, 522, 573, Steph. 2d ed. 82. 
 
 ip) See ante, 583 and supra, note (n). The (a;). Com. Dig. Pleader, F. 17; 12 East, 263; 
 
 case in 10 Mod. 312, is riot law, and what was as to certainty in a declaration, see ante, 
 
 said in Stra. 22 and 806, as to a promissory 256. 
 note, was extra judicial. 
 
 (1) Dyson v. Wood, 2 Dowl. & Ryl. 295; Harwood v. Tappan, 2 Speers, 536. The Supreme 
 Court of the State of NeW York has decided, that departure was fatal on general demurrer. 
 Sterns «. Patterson, 14 Johns. 132; Munro «. Allaire, 2 Gaines, 320,239; Spencer v. South- 
 wiok, 10 Johns. 269; Andrus v. Waring, 20 Johns. 160; Keay v. Goodwin, 16 Mass. 1. 
 
 (2) United States v. Buford, 3 Peters, 31. 
 
THE QUALITIES. 
 
 IV. THE 
 
 CERTAIN- 
 
 TT, &0. 
 
 HEftniSlTE. 
 
 T. MUST 
 BE StKOLE. 
 
 with certainty ; as if in assumpsit on several *proinises the defendant has 
 pleaded infancy, and the plaintiff reply that part of the goods were for 
 necessary food, and part for clothes, it is said to be insufficient if he do 
 not show what part was for the one and what for the other (?/). In general 
 also, when material to the action, time, place, and other circumstances 
 must be stated with the same certainty and precision as in the previous 
 pleadings ; but where time or place is immaterial it should seem, with an- 
 alogy to pleas in bar, that as the time and place mentioned in the declara- 
 tion must when immaterial be adhered to, no repetition of either would be 
 nece^ai-y (2). We have seen, that where extreme particularity in pleading 
 would tend to great prolixity and inconvenience, a general allegation is 
 allowed ; on which principle it is settled, that in debt on a bond to account 
 for all monies, &c. which the defendant or a third person receives in the 
 course of a certain employment, it is sufficient to assign the breach gener- 
 ally, that divers sums of money were received from divers persons, &o., 
 without naming from whom in particular (a). There is so rtuch similarity 
 between pleas and replications, in regard to the rule that a replication 
 must not be argumentative, and must offer matter which is triable, that any 
 further observations than those which were made upon the subject in rela- 
 tion to pleas (6) will be unnecessary. 
 
 5thly. The replication must not be double, or in other words, contain 
 two answers to tlie same plea (c) (1). For the plaintiff ought not to per- 
 plex the Court with two matters, to attempt to inveigle their judgment, and- 
 if two issues wore permitted to be joined upon two several traverses on the 
 plaintiff's replication, and one should be found for the plaintiff and the 
 other for the defendant, the Court would not know for whom to .give judg- 
 ment, whether for the plaintiff or the defendant (^d). And the Court will 
 not give leave to reply double (2), under the statute 4 & 5 Ann. c. 16 (e) ; 
 though under, that statute the plaintiff in replevin may, with leave of the 
 Court, plead several pleas in bar to an avowry or cognizance (/) (3). So 
 
 (V) Lutw. 241; Com. Big. Pleader, P. 4; 139 
 ante, 496, 497. 
 
 (z) See 2 Hen. Bla. 161; 1 Saund, 8 a; 
 anle, 522. 
 
 («) 8 T. R. 463; 1 B. & P. 6W; 1 Price, 
 109; 7 B. & C. 80J; ante, 23.5, 395. 
 
 (b) Aide, 539 and 540. See an instance of 
 an argumentative traverse of a plea of a cus- 
 tom or liberty to dig for coal, &c. 10 East, 
 
 (c) 10 East, 73; 2 Campb. 176, 177; Com. 
 Dig. PJeader, P. 16; Rep. Temp. Hard w. 289. 
 See in general, ante, 226; duplicity in a pUa, 
 ante, 458, 532. 
 
 (d) 2 Saund. 49, 50. 
 
 (e) Fortesc. 335; Barnes, 364. 
 (/) 2 B. & P. 368, 376. As to the costs, 
 
 Bee Tidd, 9th ed. 664,660; 1 Marsh. 234. 
 
 (1) Downer v. Rowen,26 Vermont, 897. 
 
 (2) See Hazard v. S:Tiith, 1 J. J. Marsh, 66; Little v. Blunt, 13 Pick. 473; Pickering ». 
 Pickering, 19 N. Hamp. 389. 
 
 (3) The doctrine of duplicity in pleading has been somewhat vague and unsettled. The 
 plaintiff cannot reply two distinct replications to the defendant's plea. This cannot be done at 
 common law; and under the statute (2 R. S. 366, s. 27) can be done only by leave of court (4 
 Wend. 211). The court, however, permitted the replications to stand, on payment of costs. 
 Frisbie v. Riley, 12 Wend. 249. The objection to pleading for duplicity is an objection of form 
 and not of substance, and can only be taken advantage of on special demurrer. If the plaintilf 
 reply that the promise was made by the defendant and a third person, and that a release was 
 executed to such third person, denying both the joint promise and the release, it is bad for du- 
 plioity. Tubbs v. C.iswell, 8 lb. 129. 
 
 The rule that on demurrer judgment shall be given against the party who commits the first 
 fault, applies not to a case where the pleading is bad merely in form. There is a class of onses 
 in loit where the defendant sets up matter merely by way of excuse, in which the plaintiff may 
 reply that the defendant of his own wrong, and without the cause by him alleged in his plea, 
 
OP THE REPLICATION, &C. 649fiS 
 
 a replication or trav;erse should be in the disjunctive and not conjunctive, v. must 
 whea if a part of the plea be true the action would not bo tenable ; as, if "^ single. 
 to an action by an attorney for fees the defendant plead that the action 
 was brought for fees at law and in equity, and that plaintiff had not a month 
 before action brought delivered a signed bill ; a replication that the bill was 
 not for fees at law and in equity is bad, for it should have been *in the [ *650] 
 disjunctive (§■). But a replication may frequently put in issue several facts 
 where they amount to only one connected proposition or answer to the 
 plea (/;) (1). And, as we have already seen, a replication may contain 
 several distinct answers to different parts of a plea divisable in its n|ituro 
 (t) ; as where infancy has been pleaded to a declaration consisting of several 
 couiits, the plaintiff may reply as to part of the demand that it was for ne- 
 cessaries, to other part that the defendant was of full age at the time the 
 contract was made, and to other part t\\at he confirmed it after he came of 
 age (A) (2). So, if an executor or administrator plead several judgments 
 outstanding and no assets ultra, the plaintiff may reply as to one of tho 
 judgraen_ts nul iiel record, and to another that it was obtained and kept on 
 foot by fraud (/). In trespass de bonis asportatis of several articles, a plea 
 justifying the removal quia damage feasant enures as a several plea in re- 
 spect of each article, and the plaintiff may reply severally ; thus he may 
 traverse the justification as to one article, and as to another reply ex- 
 cess (m). So if a plea justify the removal of goods of similar description 
 enumerated in different counts, if the identity of the goods in the differ- 
 ent counts be not alleged, the plaintiff may rely severally in respect of 
 the articles in each count (w) ; and the insufficiency of one of such sec- 
 tional replications demurred to for duplicity, in putting in issue the whole 
 plea by a traverse absque tali causa, where, in respect of matter of title 
 disclosed by the defendant, the plaintiff should have put in issue a por- 
 tion only of the plea, by traversing absque residuo causa, does not affect 
 the validity of the other replications to the same plea (n). In an action 
 of debt on bond, conditioned for the performance of covenants, the plain- 
 ^tiff may, and indeed ought, by the statute 8 & 9 W. 8, c. 11, s. 8, to as- 
 sign' as many breaches in his replication as he intends to rely upon at the 
 trial, if such breaches be not assigned in the declaration ; and it need not be 
 shown that this is done by virtue of the statute (o). And to a plea of set- 
 off, consisting of several demands upon judgment of recognizance of record, 
 and simple contract, the plaintiff in his replication should give several an- 
 swers, viz. as to the judgment of recognizance nul tiel record, and as to 
 the simple contract, that he was not indebted (/>) ; or he may reply as to 
 
 {g) Moore v. Bouloott, 1 Bing. N. C. 323. (m) Vivian o. Jenkins, 5 Nev. & Man. 14. 
 
 (ft) 1 Burr. 317; Kep. Temp. Hardw. 289; (n) Id. ibid. 
 
 ante, 605, 606. («) /''■ ibid. 
 
 (i) AnU, 228, 632, 538. (o) 13 East, 1, 2, 8; post, vol. m.; see on- 
 
 (/f) Ante, 581. te, 586. , ^ . , , 
 
 (0 1 Saund. 337 b, note 2; 1 Lord Raym. (p) 1 East, 369; see the form, post, vol. 
 
 263; 1 Salk. 298. ' iii.j and ante, 582, 583. 
 
 committed the injury complained of in the declaration, and by this general traverse, he may 
 put in issue every material allegation in the plea; but this manner of replying appears to be 
 confined to cases of tort where the defence is by way of excuse merely, and is not allowed where 
 the defendant by his plea insists upon a full and adequate right. lb. Lytle v. Lee, 5 Johns. 
 112; Plumb ». McCrea, 12 ib.491. 
 
 (1) Russell V. Rogers, 16 Wend 361. 
 
 (2) Vide Sevey v. Blaoklin, 2 Mass. 542. 
 
650 
 
 OP THE REPLICATION, &C. 
 
 V. MttsT part, to statute of limitations (9). Duplicity in a replication is aided, 
 BE siKQLE. y^iggg ^^jie defendant demur specially, pointing out the particular de- 
 fect (»•) (1). 
 
 (q) Post, vol. iii.; ante, 582, 583. 1 Saund. 337 b, n. 3; Doo. PI. 147; 10 East, ' 
 
 ((•) il Eliz. VI. b\ 4 & 5 Auue, 0. 16, s. 1; 79. 
 
 (1) If the replication contains two distinct matters in avoidance of the plea, the defendant is 
 not bound to demur for duplicity or to answer both matters^ but may talie issue upon either of 
 the matters set up in avoidance. If such issue be found for the defendant, the plaintiff will be 
 entitled to judgment non obstante veredicto; and other matters set forth in the' replication being 
 admitted as they were not ansvrered, Gould v. Bay, 13 Wend. 633, 
 
[ *651 ] 
 
 CHAPTER IX. 
 
 Of Rejoinders and the subsequent Pleadings ; of Issues, Repleaders, 
 Judgments nan obstante veredicto, and Pleas puis darrein continuance, 
 or of Matter pending action ; and of Demurrers, and Joinders in De- 
 murrers. 
 
 A REJorNPEE is the defendant's answer to the replication (a), and is in °^ bejois- 
 general governed by the same rules as those which effect pleas (6); with "™^(^)' 
 this additional quality, that it must support and not depart from the plea (r). 
 If there be several defendants, and they joined in the plea, they cannot 
 sever ia the rejoinder (rf). It must also be single; and, the Court cannot 
 give leave to the defendant to rejoin several matters, for the statute of 
 Anne does not extend to rejoinders (e) (2). Hence it may suffice to refer to 
 the preceding pages, and to the forms that are given in the third volume, 
 without taking further notice of the rejoinder with regard to its general 
 construction and qualities (3). 
 
 When a replication, or a plea in bar in replevin, concludes to the court- tobmand 
 try, the defendant can only demur; or add the common similiter, which "^ooisiits 
 is, "And the dctendant doth the like." And it is material that the de- 
 fendant should take care that the similiter be added, for otherwise he can- 
 not move for judgment as in case of a nonsuit (/). And where there are 
 several replications, particularly when some conclude to the country, and 
 otlieis with a verification, it may be, " And the defendant as to the said 
 replications of the plaintiff, to the said second and third pleas of him the 
 defendant, and which the plaintiff ha.th prayed may be inquired of by the 
 country, doth the like" (g-). In the King's Bench, if the replication con- 
 clude to the country, the plaintiff is at liberty to add the similiter for the 
 defendant, it being a rule in that Court that in all special pleadings, when 
 the plaintiff" takes issues upon the defendant's pleading, or traverses the 
 same, or demurs, so that the defendantis not at liberty to allege any new 
 matter, the plaintiff may add the similiter or joinder in demurrer, and 
 make up the paper book without giving a rule to rejoin (A) ; but otherwise 
 
 (a) Com. Dig. Pleader, H. (c) Stra. 908; see ante, 226, 532, 649. 
 
 (A) Jlnte, 621, 5455 Co. Lit. 393, b. (/) Seabrook v. Cave, 3 Dowl. 691. 
 
 (c) See on/c, 644; 2 Saund. 189,170; Com. (ff) See forms, post, vol. iii. 
 
 Dig. I'leader, F. 6 to F. 11. (h) Rule, Trin. 1 Geo. 2, ii. a; Tidd, 9th 
 
 (rf) 4B. &C. 704. edit. 717, 718. 
 
 (1) See Fowler v. Clark, 3 Day, 231; Tarleton v. Wells. 2 N. Hamp. 306; Boston Hat iManuf. 
 Co. V. Jlessenser, 2 Piek. 223; Warren v. Powers, 5 Coua. 373; Xuttle v. Smith, 10 Wendell, 
 386. 
 
 (i) Slooumb V. Holmes, 1 Howard, (Miss.) 139; Nefif v. Powell, 6 Blaokf. 421. 
 
 (•i) See, however, Nadenbousoh v. M'Rea, Gilm. 228. 
 
 Where several facts constitujing but one defence are pleaded by a party, each fact cannot be 
 traversed by the other side; the latter is confined to a denial of the facts alleged, if such denial, 
 verified by proof, will bar the claim, or defeat the defence. Tattle v. Smith, 10 Wend. 3a8.- 
 Gould's Pi. 407. * 
 
 Vol. I. 84 
 
652 
 
 OF KEJOlNDEBS, &C. 
 
 ?0RM AND a rule must be given* unless the defendant be bound by a judge's Order to 
 BEanisiiEs pgJQJjj gratis. In the Common Pleas, *where the replication concludes to 
 the country, it is usual for the plaintiff to add the similUer, and make up 
 and deliver the issue with notice of tail ; but unless under terms of rejoin- 
 ing g-rasA's, it seems that in the latter Court the defendant may insist iipon 
 having a rule to rejoin ; and that if the plaintiff add the similiter, the de- 
 fendant may strike it out, and demur to the replication, which is the usual 
 course when the defendant has no merits, and wishes to obtain time (i). 
 The consequences of a defect in or omission of a similiter, have already 
 been considered (Jc). 
 
 When the replication concludes with a verification, the rejoinder usually 
 denies it, and concludes to the country, " and of this he the defendant 
 * puts himself upon the country, &c." But when the rejoinder intro- 
 duces any new matter, it must, as in the case of a plea or replication, 
 conclude with a verification, in order that the plaintiff may have an oppor- 
 tunity of answering it (/). If the defendant deny several matters alleged 
 in the replication, the rejoinder may conclude to the country, without put- 
 ting the matters in issue severally and distinctly ; thus, if to a plea of in- 
 fancy, the plaintiff has replied that a part of the goods were necessary 
 clothing, and the residue necessary food, a general denial in the rejoinder 
 concluding to the country, will suffice (ni). 
 
 SCBBEJOIII- 
 DSBSi &C. 
 
 Surrejoinders (1), rebutters, and surrebutters, seldom occur in pleading 
 (w). It may suffice to observe that they are governed by the same rules 
 as those to which the previous pleading of the party adopting them is subject,, 
 and the forms which most frequently occur in practice, are given in. the 
 third volume (o). 
 
 [ *6g3 ] 
 
 From the preceding observations on the different parts of pleading, par- 
 ticularly those relating to traverses (p), we may collect what points may in 
 general be put in issue. As however, the parties respectively'may be dls- 
 inclined to demur, or otherwise to object to their opponent*s pleading, it 
 may be advisable to consider on what issue the parties may venture ta 
 proceed to trial, so as to obtain the judgment of the Court, and to avoid 
 the necessity of a repleader, on account of the issue having been upon im- 
 malerial matter. 
 
 *An issue is defined to be a single, certain^ and material point, issuing 
 out of the allegations or pleadings of the plaintiff and defendant (jf) ; 
 
 (0 Tidd, 9th edit. 718, 719; Imp. G. P. 
 85B; 1 Sel. Prao. Chap, ix, s. 1. 
 
 (fr) Ante, 699. 
 
 (l) Ante, 641, 642; 1 Saund: 103^ note 1; 
 see the forms, post^ vol. iii. 
 
 (m) Lutw. 241; Com. Dig; Pleader, H. 
 
 (») See these heads in Com. Dig, Pleader, 
 I. K. L. There is no technical name for any 
 pleading subsequent to a surrebutter. It is 
 Tery rarely, if ever,- that the pleadings go be- 
 
 yond the surrebutter. It Is hardly necessury 
 to observe that the surrejpinderand surrebutter 
 are the plaintitf's pleadings, and that the re- 
 butter is the defendant's pleading! 
 
 (o) See post, vol. iii. 
 
 (p) Ante, 611, 622. 
 
 (g) Co. liit. 126 a, As to issues in general, 
 see Com. Dig. Pleader, R.; Bae. Ab. Pleas, M.;' 
 Tidd, 9th ed. 717. 
 
 (1) Potter D.Titcomb, 1 Fairf. 53; Dawes v. Winship, 16 Mass, 291; Williams v. Whitmore, 
 Kirby, 249; Kay ». Goodwin, 16 Mass. 1; Oakley v. Bomeyn, 6 Wendell, 521. "^ 
 
OF ISSUES. 653 
 
 though iti common acceptation, it signifies the entry of the pleadings them- o? isstjeb. 
 selves (r). An issue is either in teio,upori a demurrer ; or infact (1) when 
 the matter is triable by the court upon nul tiel record, or a jury upon 
 pleadings concluding to the country. Both these descriptions of issues 
 may occur in the same cause as to distinct parts of the declaration. The 
 term " issue" is proper where only one plea has been pleaded, and though 
 it be applied to several counts, and issue is joined upon such plea (s) An 
 issue should in general be upon an affi/rmative and a negative, and not up- 
 on two affirmatives ; as if the defendant plead that A. is living and the 
 plaintiff reply that ho is dead, it is more formal, though not absolutely 
 necessary, also to deny that he also is living (f). Nor should the issue be 
 on two negatives (m). Thus, if the defendant plead that he requested the 
 plaintiff to deliver an abstract of his title, but that the plaintiff did not, 
 when so requested, deliver such abstract, but neglected and refused so to 
 do ; the plaintiff cannot reply " that he did not neglect and refuse to de- 
 liver such abstract," but should reply, either denying the request, or 
 affirmatively, that he did deliver the abstract (a;). But it is not necessary 
 that the negative and affirmative should be in precise Jwords (jj") ; and 
 it will suffice though there be two affirmatives, if the second is so contrary 
 to. the first that it cannot in any degree be true. Thus, if duress of imprisr 
 onment be pleaded to a bond, it is a good replication that the defendant was 
 at large at his own disposal, and executed the bond of his own free will, 
 and not for fear of imprisonment (z). An issue shduld also be upon a single 
 and a certain point (a) ; but it is not necessary that such point should con- 
 sist pf a single fact ; and therefore if the defendant in trespass justify under 
 a right of common, and the replication traverses that the cattle were the 
 defendant's own and levant and cnvchant, and commonable cattle, it is not 
 multifarious, for all these circumstances are requisite to the point of de- 
 fence (6). The issue also should not be on a negative pregnant (c) ; but 
 it mqy *sometitnes be upon a disjunctive averment (rf). In some cases [ *654 ] 
 the plaintiff may incorporate in the traverse or issue more than was alleged 
 in the plea (e). 
 
 The principal quality of an issue is, that it must be upon a material 
 point (/) (2). An informal issue is, where a material allegation is trav^ 
 
 (r) As to the form of such entry, see Tidd, («) Id.; 8 T. R. 280; Bac. Ab. Pleaa. 
 
 9th edit. 719, 783; and Tidd's App.o.SO.s. 1, 1.3. 
 &o. Issues in fact are not to be noticed in the (x) 6 East, 657. 
 Demurrer Book in K. B. 7 B. & C. 642. As (y) Co. Lit. 126 a. 
 
 to the language of this entry, it is said that (a) 2 Stra. 1177; 1 Wils. 6., 
 
 the acts of a court ought to be in the present (a) Com. Dig. Pleader, R. 4. 
 tense, as " prceceptvm est," not "prtcceptum , (4) 1 Burr. 316. Other instances, onte, 
 
 fuit," but the acts of the party may be in the 605, 618, 619. 
 
 preterperfect tense, as, venite et prolulit hie (c) See as to this, onie, 613, 614, note (w); 
 
 in curia quandam qwerelam suam," and the Com. Dig. Pleader, R. 5. 6; Bac. Ab. Pleas, I. 
 
 continuances ere in the preterperfeot tense, as 6. It must be objected to by demurrer, id.; 2 
 
 "venerttnt," not " veniunt," 1 Mod. 81; 2 Baund. 319, n. 6. 
 
 Saund. 393, h. 1; 1 Stra. 608; but see 1 T. R. (d) Com. Dig. Pleader, R. 7; see ante, 
 
 320. 614. 
 
 (s) Peake's C. N. P. 37. (0 H East, 410; ante, 611. 
 
 (0 Com. Dig. Pleader, B. 3. (/) Com. Dig. Pleader, R. 8. 
 
 (1) SeeHalecDennie, 4 Pick. 501, 503. 
 
 (2) U. States v. Buford, 3 Peters, 31. On the traverse of a material allegation, the other 
 party is bound to take issue. Hapgood v. Houghton, 8 Pick. 451; Dyer v. Stevens, 6 Ueaa, 
 389; Dawes u.Winship, 16 Mass. 291. 
 
654 OF RBPLEADEKS. 
 
 OP issijEs. ersed in an improp?i- or artificial manner (g'') (1) ; and this mistake is 
 aided by verdict liy the 32 Hen. 8, c. 30 (A) (2j. But a verdict does not help 
 an immaterial issue (i) (3), which is, where a materiul allegation in the 
 pleadings is not traversed, but an issue is taken on some other point (4), 
 which, though found by verdict, will not determine the merits of the cause, 
 and would leave the Court at a loss for which of the parties to give judg- 
 ment (Ji). Therefore, where in debtor bond, conditioned for the payment 
 of £60 on the 25th of June, the defendant pleaded payment on the 20th 
 of June, according to the form and effect of the condition, and issue was 
 joined, and the verdict found that he did not pay £60 on the 20th, it was 
 held that the plaintiff should not have judgment ; for the issue was out of 
 the matter of the condition, and therefore void, and the money might have 
 been paid on the 25th, though it was not paid on the 20ih, so that it did 
 not appear that ihe condition was broken, and it is not aided by the before 
 mentioned statute (/). So where in an action of assumpsit against an ad- 
 ministratrix, on promises of the intestate, she pleaded that she (instead of 
 the intestate) did not promise, after verdict a repleader was awarded (m). 
 And where in an action of debt against a lessee for years, the defendant 
 pleaded that before the i-ent became due, he assigned the term to a third 
 person, of which the plaintiff had notice, and issue was joined on the 
 averment of notice, a repleader was awarded ; it being perfectly immate- 
 rial whether or not the plaintiff had notice of the assignment, if it were 
 executed (w). 
 
 Of the Reg. Gen. jjil. T. 2 W. 4, orders, " that if a defendant, after craving 
 
 reguMons Oyer of a deed, omit to insert it at the head of his plea, the plaintiff, on 
 respecting making up the issue or demurrer book, may, if he think fit, insert .it for 
 issues. \\\v!\, but the costs of such insertion shall be in the discretion of the tax- 
 ing officer (o). 
 
 The Reg. Gen. Hil. T. 4 W. 4, sec. 1 and 2, orders that every decla- 
 ration and other pleading shall be dated of the day and month when 
 [ *655 ] pleaded, and shall be entered on the record made up for trial, *and on the 
 judgment-roll, under the date of the day of the month and year when the 
 eame respectively took place, and without reference to any other time or 
 date unless otherwise specially ordered by the Court or a judge ; and no 
 entry of continuances byway of imparlance, curia advisari vvlt,vice comes 
 nonmisil brere, or olhervnse, shall be made upon any record or roll what- 
 ever, or in ihe pleadings, except the juratur ponitur in respeclu, whicli is 
 to be retained. Provided, that such regulation shall not alter or affect any 
 existing rules of practice as to the times of proceeding in the cause. 
 Provided also, that in all cases in which a plea puis darrein continvance is 
 now by law pleadable in Banc, or at Nisi Prius, the same defence may 
 
 (g) Cro. Eliz. 227; 1 Lev. 32; Carth. 371; 18; 3 Bar. & Cres. 449. 
 2 Mod. 137. (l) Cro. Jac. 43i; Stra. 994; 2 Saund. 319 
 
 (A) Gilb. C. P. 147; 2 Saund. 319, note 6. b, n. 6. 
 
 (i) 2 Saund. 319 a, note 6. (m) 2 Ventr. 96. 
 
 (k) III.; Glib. C. P. 147; 1 Lev. 32. See (n) 1 Lev. 32. 
 
 the instances, id. and Com. Dig. Pleader, E. (o) Jervis' Rules, 54, note (/). 
 
 (1) Vide Winstanley v. Head, 3 Taunt. 237. , 
 (■I) Vide Cobb v. Bi-yan, 8 Bos. & Put. 848, 3:"i2. 
 
 (3) Vide Cobb v. Bryan, 3 Bos. &-PuI. 352; Postmaster Geners^l v, Reeder, 4 Wash. C, C. 
 R678. .... , 4 
 
 (4) Vide Strong v. Smith, 8 Caines, 163. 
 
OP ISSUES. 
 
 655 
 
 be pleaded with an allegation that the matter arose after the last pleading, or issties. 
 or the issuing of the jury process, as the case may be. Provided also, , 
 that no such plea shall be allowed, unless accompanied hy an affidavit that 
 tlie matter thereof arose within eight days next before the pleading of such 
 pleas, or unless the Court or judge shall otherwise order. And in the 
 conclusion of these rules, the forms of an issue, and Nisi Prius record, and 
 judgment, and other forms are given (;?). 
 
 "When the issue is immaterial, the Court will award a repleader, if it of kk- 
 wili be the means of effecting substantial justice between the parties, but ^i^adebs. 
 not otherwise (9) (1). As where in debt on bond, the defendant pleaded 
 performance generally, and the plaintiff replied denying tlie general per- 
 formance, and concluding to the country, and stated breaches, by way of 
 svgffestion instead of rephjins; them, after verdict for the plaintiff a replead- 
 er was awarded, such issue being insufficient (r). In trespass for taking 
 the plaintiff's cattle, the defendant jiistifiedtaking them upon land demised 
 by him to one W. for rent in arrear. Replication that they were not levant 
 and couchant. The defendant took issue upon that, and after it was found 
 for the plaintiff, he moved for a repleader, which was refused, because the 
 issue might be material ;, and a repleader is never granted unless the issue 
 must be immaterial (s). The following rules as to repleaders were laid 
 down in the case'of Staple v. Hayden (t) : first, that at common law a re- 
 pleader was allowed before trial, because a verdict did not cure an imma- 
 terial (m) issue, but now a repleader ought not *to be allowed till afteV [ *656 ] 
 trial,, in any case where the fault of the issue might be helped after verdict 
 by the statute of jeofails (2;). Secondly, that if a repleader be denied where 
 
 • (p) See' forms of issue with notes, 3 Chit- the renson given, if that word alone be used, 
 
 ty's Gen. Prae. 766. is wholly unsatisfnctory,iniismuch as a verdict 
 
 (j) 2 Saund. 319 b, note 6; 2 Salk. 579; does not cure an immaterial issue iit this day. 
 
 6 Mod. 1; 2 Ld. Raym. 922; S Salk. 121, S. It should seem that the reason of the distinc- 
 
 C. ; Cowp 489. See Chitty on the Game Laws, tion between the practice before and since the 
 
 1st edit. 96-3, cites Raym. 453; see post. statute of jeofails i< this; that before the stat 
 
 ('') 5 Taunt. 386; 1 Marsh. 95, S. C. ; see ute a verdict did not cure either an i'mmu/erjui 
 
 an/c, 507- ' or an in/or;n«/ issue, and therefore a replead- 
 
 (s) Ld. Raym. 167; 5 B. & C. 649. er was awarded before a, trial, because the 
 
 (t) 2 Silk. 579; and 6 Mod. 1; 2 Lord trial could not have any effect upon the i^s9ue, 
 
 Raym. 922; 3 Salk. 12', S. C. ; as to a re- and therefore the Court will not interfere 
 
 pleudur in general, see Cora. Dig. Pleader, R. until the result of a trial is seen, which may 
 
 18; Bac. Ab. Pleas, M. ; Doc. Plac. Repleader; render a motion for a repleader unuecessa- 
 
 Siephen, 2d ed. 130; Tidd, 9th edit. 921; see ry." 
 
 the form.s there referred to, and 2 Saund. 20; (x) Bac. Ab. Pleas, M. ; Com. Dig. Ple.nder, 
 
 and 315 d, n. 6. R. 18; 3 B. & P. 352; 2 Saund. 319 b. But 
 
 (u) In the 5th edition of Saunders' Rep. where the point in i.ssue is "//oi/ctAcr immate- 
 
 (vol. ii. 319 b, note 6.) it is observed that rial and could not be modified by the verdict, 
 
 "the word tni«ii(eriflZ is in the report of this because collateral to the merits, it would be 
 
 case, but it should seem to be a mistake ; for otherwise. See further 9 Bing. 532. 
 
 (1) Vide StaflFord o. Corporation of Albany, 6 Johns. 1. Also, Terrel v. Page, 3 lien. & 
 Mun. 118; Taylor v. Huston, Id. 161 ; Cobb v. Bryan, 3 Bos. k Pul. 353; Havens v. Bush, 2 
 Johns. 888, 389; Bac. Ab. Pleas, (-\L I.); Macomb v. Wilber, 11 Johns. 230; Gould v. Ray, 
 13 Wend. 63!!. Where the pleadings ate so defective, that no valid judgment can be rendered 
 on them, a repleader will be ordered. Gerrish v. Train, 3 Pick. 124; llaton v. Stove, 7 Alass. 
 312; Magoun u. Lapham, 19 Pick. 419. 
 
 But where the only material fact has been passed upon by the jury, the court will not 
 award a repleader. Jenkins v. Stanley, 10 Mass. 262. See Payne v. Barret, 2 A. K. Siarsh, 
 812. 
 
656 OF REPLEADERS. 
 
 WHEN it stiould be granted, or vice versa, it is error. Thirdly, that the Court 
 ■^l^^' will not award a repleader excepting where complete justice cannot be 
 answered without it (y). Fourth///, that the judgment of repleader is gen- 
 eral, quod paries replacilent, and the parties must begin again at the first 
 fault which occasioned the immaterial issue (0) : thus, if the declaration be 
 insufficient, and the bar and replication are also bad, the parties must begin 
 de novo (1) ; but if the bar be good, and the replication ill, at the replica- 
 tion (a) (2). Fifthly, no costs are allowed on either side (6). Sixthly, that 
 a repleader cannot be awarded after a default at nisi privs. To which 
 may be added, that in general a repleader cannot be awarded after a de- 
 murrer or writ of error, -without the consent of the parties, but only after 
 issue joined (c). Where, however, there is a bad bar, and a bad replica- 
 tion, it is said that a repleader may be awarded upon a demurrer (t^) (3). 
 A repleader may also be awarded, where the Court can give judgment on 
 the whole record (e) ; and it is not grantable in favor of the person who 
 made the first fault in pleading (/) (4). 
 betweeiiT ^here a plea confesses the action, and does not sufficiently avoid it, 
 replcaiier judgment shall be given upon the confession without regard to a verdict for 
 andjudg- the defendant, which is called a judgment non obstante veredicto (5) and 
 ment noii j„ gy^jj ^^^^ ^ ^^jj of enquiry shall issue («•). The distinction between a 
 veredicto, repleader and a judgment non obstante veredicto is this: that where the 
 plea is good in form, though not in fact, or in other words, if it contain a 
 defective title, or gi-ound of defence by which it is apparent to the Court, 
 upon the defendant's own showing, that in any way of putting it, he can 
 have no merits, and the issue joined thereon be found for him, there, as 
 the awarding of a repleader could not mend the case, the Court, for the 
 [ *657 ] sake of the •plaintiflp, will at once give judgment non obstante veredicto (6), 
 but where the defect is not so much in the title as in the manner of stating 
 it, and the issue joined thereon is immaterial, so that the Court knew not 
 for whom to give judgment, whether for the plaintiff or the defendant, 
 then for the more satisfactory administration of justice they will award a 
 repleader. A judgment therefore non obstante veredicto is always upon the 
 merits, and never granted but in a very clear case ; a repleader is upon 
 
 (j) Goodtwine v. Bowman, 9 Bing. 532. (e) Willes, 582, 533. 
 
 (2) 1 Ld. Raym. 1«9. (f) \ Ld. Ravm. 170; Dougl. 395, 747; 
 
 (a) 3 Keb. 6b4. Tidj. 9th edit. 921; 2 Saund. 5th ed. 319 c; 
 
 (4) 2 Vent. 196; 6T. E. 131; Barnes, 125; serf vide 2 Stra. 994. See further 9 Bing 
 
 2 B. & I'. 376. 532. 
 
 (c) SSalk 306. (g) Tidd, 9th edit. 920; and casescited.id" 
 
 ('/) Seinble Cro. £liz. 318; 1 And. 167. note g. 
 Sed gutere. 
 
 (1) Sed vide Smith v. Walker, 1 Wash. 135, 636, where the court says, " When we are seek- 
 ing for a good foundation upfin which to erect future pleadings, and find all defective, includ- 
 ing the declaration itself, the uncertainty cannot be cured:" and therefore the Court of ap- 
 peals in giving the judgment, that ought to have been given in the court below, ordered the 
 suit to he dismissed. 
 
 (2) Vide Sievens v. Taliaferro, 1 Wash. 155. 
 
 (•') Vide Perkins v. Burbank, 2 Mass. 81. Leave to replead may be granted, after argu- 
 ment on demurrer. Potter ii. Titcomb, 7 Greenl. 302. The Court will not award a repleader 
 after judgment, on a material issue. Page u. Walker, 1 Tyler, 146. See Dawes o. Goocb, 8 
 Mass. 488, 
 
 (4) Vide Kitley v. Deck, 3 Hen. & Mun. 388; Bledsoe v. Chouning, 1 Humph. 85; Andre p. 
 Johnson, 6 Blackf. 375. 
 
 (6) Roberts v. Dame, 11 N. Hamp. 226. • ' 
 
 (6) Lambert v. Taylor, 6 Dowl. & Eyl. 188. 
 
OP PLEAS PUIS DAEREIN CONTlNtTANCB. 657 
 
 the form and manner of pleading (Ji), If a plea be defective,, and tlie de - when 
 fendarit succeed at the trial thereon, the question, whether the plaintiff can '":'=^^^^»^« 
 have judgment non, obstante veredicto, or whether tliere ought to be a re- ' ' 
 pleader, depends upon the question, whether the plea does or does not con- 
 tain a confession of a cause of action ; if a cause of action be confessed by 
 the plea, and the matter pleaded in avoidance be insufficient, the plaintiff 
 is entitled to judgment notwithstanding the verdict. If the plea do not 
 confess a cause of action,, there must be a repleader (i). ' 
 
 Before the uniformity of process act, 2 W. 4, c. 39, it was decided that a «•* ^^^-^ 
 payment to assignees of a banlirupt plaintiff, after a latitat had issued, and "^"'^^^"^ 
 before declaration, might be given in evidence under the general issue (/c). ihat™atb 
 When matter of defence had arisen after the commencement of the suit, arisen 
 it could not be pleaded in bar of the action generally, but must when it ^^™""' 
 had'arisen before plea or continuance, be pleaded as to the further main- (/). 
 tenance of the suit (/) (1) ; and when it had arisen after plea, and before 
 ■ replication, or a/i!e/-m«eyoi«e</, then pwis darrein continuance (2). The 
 instances of a defendant having obtained his certificate as a bankrupt pend- 
 ing the smi,.and before plea (_m), and of an executor pleading judgments 
 obtained against him after the issuing of the writ, and before plea, were 
 exceptions (w) 
 
 If any matter of defence has arisen after an issue in fact has been joined, 
 or after a joinder in demurrer (o), it may be pleaded by the 'defendant: as [*6$8 ] 
 that the plaintiff has given him a release {p) (3) or that the plaintiff isa bank- 
 
 (A) Tidd, 9th edit. 922; Bao. Ab. Pleas M.; (o) Hob. 81; Com. Dig. Abatement, I. 24. 
 
 Com. Dig; Pleader, R. 18; 5 Taunt. 386; 1 aCc; Ld. Riiym. 2b6; Stra. 493, conica ,• see 
 
 Marsh 95, S. C. ; 3 Taunt. 237. Com. Big. Abatement, I. 24. 
 
 . (i) Ld. Rnym. 890. Per Abbott, C. J. 4 B. (p) Bui N. P. B09; see the form, post, 
 
 & C. 162,6 D-. & R. 199; seethe instances, id. vol: iii. But in ejeotmetit the defendant is not 
 
 {j ) As to these pleas in general, see Bao. allowed to plead a release by the lessor of the 
 
 Ab. Pleas, Q., Com. Dig. Abatement, 1, 24, plaintiff, 4 M. & S. 300; 2 Chit. Rep. 323, S. 
 
 84; Doot. Plao. 297; Bui. N. P. 309; Gilb. S. C; and see 7 Taunt 9. And where aland- 
 
 C. P. 101; Tidd, 9th edit. 847; and see the lord with the permissiou of his baililf, who 
 
 forms, ;tios/, vol. iii. ; {ind see Beg. Gen. Hil. T. had made a distress for rent, commenced an 
 
 4; W. 4, reg. 2, Bosanquet's Rules, 130tol34. action in the bailiff's name against tbe sheriff 
 
 (fc) 1 E. & Adol. 568; and 10 Bar. and for taking insufficient pledges, and the bailiff 
 
 Ores. 676. afterwards, without the landlord's privity, re- 
 
 {l) 4 East, 507; ante, 585; Lut. 1178; leased to the sheriff, who pleaded it puis rfur- 
 
 Ctfm. Dig. Abatement, I, 24; plaintiff become rein conlinuance, the Court of C. P. set aside 
 
 an alien enemy, 3 Campb. 152. the plea, and ordered the release to be deliver- 
 
 (m) 9 East, 82. cd up to be cancelled. 7 Taunt. 48; so where 
 
 (n) 4 East, 507, 8; 9 Id. 84; 1 Marsh, husband and wife lived separate under a deed, 
 70, ii80; 5 Taunt. 333; and an executor by which he stipulated that his wife should en- 
 may plead puis darrein continuance, a judg- joy as her separate property all effects, &o. 
 meut purposely confessed by him for a bo7ia which she might acquire, and that he would 
 fide debt, though such judgment be in debt on not do any act to impede the operation of the 
 a simple contract; 5 Taunt. 603; 1 Marsh, deed, but would r.itify proceedings in their 
 280, S. C. ; 3 B. & C. 317; 5 D. & Rrl76. names for recovering such property; and the 
 
 (1) Cowell V. Weston, 20 Johns. 414; Lee v. Levy, 6 Dowl. & Rayl. 475; Yeaton v. Lynn, 5 
 Peters, 224. 
 
 (2) Semmes ».-Naylor, 12 Gill & John, 358; Longworth v. Flagg, 10 Ohio, 300; Burns v. 
 Hindman, 7Alabama, 531; Tuffs v. Gibbons, 19 Wendell, 639; Morrow v. Morrow, S Brevard, 
 394; Thomas e. Van Dozen, 6 Missouri, 201; Wyatt v. Richmond, 4 Humph. 8B5. Such mat- 
 ter cannot be given in evidence at the trial. Jackson v. Rich, 8 Jbhua. 194; Jackson v. Bam- 
 sey, 8 Cowen. 75. ' 
 
 (3) See Kimball », Wilson, 3 N. Hamp. 96; 
 
658 OF PLEAS PUIS DARREIN CONTINtJANCE. 
 
 WHKN rupt (9), or has been outlawed or excoramunijfated (r) ; or that there has 
 NECEs-iAKT, ^^^^^ ^^^ award made on a reference after issue joined (s). And if the de- 
 fendant became bankrupt, and obtain his certificate after issue joined, he 
 should plead this defence puis darrein continuance (1) ; and if he neglect 
 to do so he cannot plead his certificate to an action upon such judgment (<). 
 I • So it may be pleaded in abatement that a feme sole plaintiff has married 
 (m) ; or in an action by an administrator that the plaintiff's letters of ad- 
 ministration had hQQni'Q\6kedi, puis darrein continuance (x). So a defen- 
 dant sued as executor de son tort may plead that he has since obtained let- 
 ters of administration, so as to support a previous plea of retainer in the 
 character of executor (?/) (2). 
 
 Pleas of this kind are either in abatement or in. bar (sr). If any thing 
 happen pending the suit, which would in effect abate it, this might have 
 been pleaded jruis darrein continuance, though there has been a plea in 
 bar ; because the latter plea only waives such matters in abatement as ex- 
 isted at tlie time of pleading, and not matter which arose afterwards ; but 
 [ *659 1 if matter in abatement be pleaded puis darrein ^continuance, the judgment, 
 if against the defendant, will be peremptory, as well on demurrer as on tri- 
 al (a) (3). A p\ea puis darrein continuance is not a departure from, but 
 is a waiver of the first plea (4), and no advantage can afterwards be taken 
 of it, nor can even the plaintiff afterwards proceed thereon (6) (5). 
 
 wife hnving, as executrix of N. R, comraenced effect of the plaintiff's bankruptcy, see ante, 22. 
 
 an action Oil a promissory note ag^^inst defend- (/•) Supra, n.(p) 
 
 ants, in the names of her husband and her- (s) 2 Esp. Rep, 501. 
 
 self, and the huaband released the debt, which (() 6 B. & C. lUo; 9 D. & R. 171. S. C. 
 release was pleaded pais darrein continuauce; It would seem to be advisable, and perhaps 
 the Court on application, ordered the plea to necessary in such case, to plead the bankrupt- 
 be taken off tiie record, and the release to be cy specinlly, and not in the generab form 
 given up to be cancelled, 4 B. & A. 419. So prescribed by the stit. 6 Geo. 4, o. 16, s. i26; 
 apleajouis darrein continuance oi a release see id. ; 6 East, 413, 2 Smith's Rep. 6-3'.); I 
 by one of the several plaintiffs, was set aside M'Clel. & Y. 350; Mr. Justice Ashhurst's 
 by the Court of K. B. without costs on the Paper Book, vol. xxiv. 154; Tidd, 9th ed. 847, 
 terms of indemnifying the plaintiffs, who had note(rf); 3 Taunt. 46; 3 B. & C. 23, poit, 
 released the action, against the costs of it, al- vol, iii. ; but see 2 Hen. Bla. 553; 9 East, 
 though their consent had not been obtained 82; Tidd, 9th edit. 647, 8; seel M. & M. 122. 
 before action brought; it- appearing that no (it) Bro. Abr. Continuance, pl.^57; Bal. N. 
 consideration had been given for the release, P. 310. 
 
 and that the plaintiffs sued as trustees of an (x) Bui. N. P. 309; Coin. Dig. Abatement, 
 
 insolvent person, 1 Chit. Rep. 3901. But un- I. 24 
 
 ' less a very strong case of fraud be made out, {y) 2 Stra. 1106; 1 Saund. 265, note 2. 
 
 the Court of C. P. will not control the legal (z) Com. Dig. .'Vbatement, L 2i; Tidd, 
 
 power of a co-plaintiff to execute a release, 7 9th ed. 8 19; see Form, id. Appendix, o. 37, s, 4. 
 
 Taunt. 421; Tidd, 9ih edit. 678, 818; 4 Moore, (a) Gilb. C. P. 103; AUeyn, 66; freem. 
 
 192; 7 n. 356; ante, 469. 552; 2 Stra. 1105, 1106. 
 
 (,;) Tidd. 9th edit. 847; 15 East, 622; 4 (6) 1 Salk. 168; 2 Stra. Il05; Hob. 81; 1 
 
 B. & C. 920; 7D. & R. 400, S.C; as to the Marsh. 70, 780; 5 Taunt. 333; Tidd,9ih ed.819. 
 
 (1) Accord and satisfaction may be pleaded puis fiarret/j continuance. Watkinson «. Ingles- 
 by, 5 .Johns. 392. When two actions are brought for the same cause, satisfaction of the judg- 
 ment in one suit may be pleaded pais darrein continuance to the other suit. Bourns v. Joy, 9 
 Johns. 221; 5 Peters, 232; Gould's PI. vi. 124. 
 
 (2) But in separate suits against the maker and indorser of a note the latter after plea 
 pleaded, cannot avail himself of a, subsequent payment of the note by the maker, by interpos- 
 ing a plea puis darrein continuance ; he can require the plaintiff to proceed to trial upon the plea 
 originally put in, but upon hi^ omission to do so, the plaintiff may discontinue without costs. 
 Commercial Bank of Buffalo v. Love, 19 Wend. 98. 
 
 (8) Aco. Renner v. Marshall, 1 VVheaton, 216; Culver v. Barney 14 Wend. 162. 
 
 (4) Yeaton v. Linn,5 Peters,224; Wallace d. .M'Connel, 13 Peters, 136. A plea of release 
 pleaded puis darrein continuance , after demurrer and rejoinder in demurrer operates as a re- 
 traxit of the demurrer. Soloman v. Graham, 32 Eng. Law & &\. Rep 280. > 
 
 (5) Wallace v. M'Connell, 13 Peters, 152. A plea put* darrein coutlnuanet, in bar of the 
 
OP PLEAS PUIS IjAEftBIN CONTlNjfANCK. 669 
 
 With respect to the time when matter of this description is to be ple?id- time o? 
 fed, if the ground of defence Srose after plea, or after issue joined, and be- ^^EMfpf 
 fore the return of the venire facias, it should be pleaded in bank (d) ; bvit BEFOEfj ' 
 matter arising after the return of the venire facias, or last continuanqe, wsR^ir 
 may be pleaded at nisi prius, although there was an opportunity of plead- "^'"^ "°™- 
 ing it previously in bank (e) (1). And where the defendant after plead- 
 ing, obtained his certificate as a bankrupt, and then pleaded it in bank, 
 as a matter which had arisen after the last continuance, but in fact a,pother 
 continuance had intervened between the certificate and plea, the Court 
 permitted him to plead it nunc pro tunc, on payment of qosts (/) (2) but 
 tnatters which have arisen after the trial, and before the day in bank, can- 
 not be so pleaded {g) ; and though such a plea may be pleaded after the- 
 jury have gone from the bar, yet it cannot after they have given their ver- 
 dict (A) (3). A plea of bankruptcy in the defendant after the last con- 
 tinuance, was set aside as having been pleaded after the proceedings had 
 been stayed in action upon the bail bond {i). But a plea pwis darrein 
 continuance of new matter may be pleaded although the defen^lant were un- 
 der terms of rejoining jssuably and taking short notice of trial (k). 
 
 The Reg. Gen. Hil. T. 4 W. 4, reg. 2, f puts an end to the entry of Since the 
 continuances, except the juratur ponitur in respectu, which is to be retain- H^^'r^T" 
 • ed. But the same rule provides " that in all cases in which a plea puis dar- Reg. 2. ' 
 ' rein continuance is now by law pleadable in bank, or at nisi prius, the 
 same defence may be pleaded with an allegation that the matter arose after 
 the last pleading or the issuing of the fury process, as the case may be." 
 Provided " that no such plea shall be allowed unless accompanied by an 
 affidavit that the matter, thereof arose within eight dai)s next before the plead- 
 *ing of such pleas, or unless the Court or a judge shall otherwise order." 
 
 (c) See Tidd, 9th edit. 847, 818; 3 B. & tice Ashhurst's Paper Book, MS. 
 
 Aid. 577; ID. & R. 5-21; 5 B. & Aid. 852, S. {g) Tidd, 9tli ed. 848, 849. 
 
 C.;4 B. & Aid. 249; 3 B. & Ores. 317. (A) Doslir. Plao. 177; Bui. Ni. Pri 310; 9 
 
 ('/) See Cpm. Dig. Abatement, I, 24; 2 East, 321; Com. Dig. Abatement. 1.84; 863 
 
 Smith's Rep. 396; seethe form, pmt, vol. iii. farther, 3 B & Aid. 577; 1 D. & R. 621; 5 
 
 (e) 5 Taunt. 333 and 665; S. C. 1 Marsh. B. & Aid. 852< S. C; 4 B. & Aid. 249; Tjdd, 
 
 88, and 2d0. ' 9th ed. 849. 
 
 (/) 2 Smith's Rep. 396; Tidd. 9th ed. (J) 4 B. & Aid. 249; 6 B. & Ores. 145. • 
 
 848. .-Jee a plea, in vol. xxiv. 154; Mr. Jus- (k) 2 M. & P. 760; 5 Bing. 414, S. C. 
 
 action is a waiver of all former pleas. Culveru. Barrey, 14 Wendell, 161; Kimball v. Hun. 
 tington, 10 Wendell, 675; Spafford o. Woodruff, 2 M'Lean, 191; Seott v. Brokaw, 6 Blnckf' 
 241; Den. v. Sanderson, 3 Harr. 426.; Sadler v. Fisher, 3 Alabama, 200; Sanderlin v. Dan- 
 dridge, 3 Humph. 99. 
 
 This is not so, liowever, where the matter of the jilea affects the remedy only, and not the 
 right of action, ib. Roquet o. Dyett, 2 Wendell, 300. 
 
 (1) Lyttleton t;. Cross, 5 Dowl. & Ryl. 175; Bi-oome v. Beardsley, 3 Caines, 173; Lafargp 
 V. Carrier, 1 Wendell, 89; Ludlow v. M'Crea; ib. 228; Palmer 'v. Hutohings, 1 Cowen, 42j 
 Field ». Goodman, 3 Wendell, 310; Hastlerj 11 Serg. & R. 146; Bangely j). Web^teri 11 N. 
 Hamp. 299. 
 
 (2) Vide Morgan i. Dyer, 9 Johns. 255; Merchants' Bank v. Moore, 2 Johns. 294; Rang- 
 ley D. Webster, 11 N. Hamp. 299. It is in the discretion of the court to receive the plea or 
 not, even after more than one continuance has intervened, and this discretion will be gov- 
 erned by circumstances extrinsic, and which cannot appear on the face of the plea. Jjloi"- 
 gan w. Dyer, 10 Johns. 161; Wilson u. Hamiltoni Lyons v. Miller, 4 Serg. & Riiwle, 239, 
 281. The King v. Taylor, 5 Dowl. & Ryl. 521; Tuffs v. Gibbons, ,19 Wend. 639; Bangley 
 V. Webster, UN. Hamp. 299; Lyon v. Marday, 1 Watts, 271; Nettle v. Swazea, 2 Mis.' 100. 
 
 (3) But an insolvent has been allowed to plead his discharge even after verdict. Mechanics' 
 Bank v. Hazard, 9 Johns. 892. , 
 
 t See American Editor's Preface. 
 
 Vol. I. 85 
 
•660 
 
 OB* PLEAS PtilS DAREIIIN CON^lNtTANCii. 
 
 ^Tdino • *'^''^** certaintjr irsis always required in plegs of this description ; and (I) 
 
 THEM. '^ "^^^ iiot sufficient to say generally that " after the last continuance " such 
 
 Form of a thing happened, but the day of the continuance must have been alleged 
 
 thesepleas. -^phere the matter of defence al-ose (m) (1). The present forms of such 
 
 pleas, whether pleaded in bank (2) or at the assizes, are given in the third 
 
 volume (n). The plea, when it contains matter in abatement, concludes 
 
 by praying judgment of the writ, and that the same may be quashed (o) ; 
 
 or if the writ would be abated de facto, by praying judgment if the Court 
 
 will further proceed (p). In bar the conclusion of the plea is, that the 
 
 plaintiff ought not further to maintain his action, and not that the former 
 
 inquest should not be taken, because it is a substantive bar of itself, in 
 
 lieu of the former, and consequently must be pleaded to the action (9) (3). 
 
 How 
 .pleaded 
 and pre 
 ceedingg 
 theieon. 
 
 Pleas after the last continuance must, even before Reg. Gen. Hil. T. 4 
 W. 4, reg. 2, have been verified on oath before they could be allowed, 
 whether pleaded in bank or at nisi prius (r) (4) ; but the affidavit need 
 not have been entitled in the cause when annexed to the plea («). The 
 Reg. Gen. Hil. T. 4 W. 4, reg. 2,f we have just seen, also requires that 
 the affidavit state that tha matter of defence arose within eight days next 
 before the pleading such plea, or that the Court or a judge has otherwise 
 ordered (i). These pleas, it is said, cannot be amended after the assises 
 are over (m) (5) ; nor can there be more than one plea puis darrein con- 
 tinuance (x), and such a plea cannot, it is said, be pleaded after a demur- 
 rer (2/). But if a plea puis darrein continuance be filed and verified on 
 oath, the Court cannot set it aside on motion, but are bound to receive it 
 
 (/) Doc. Plac. 297; Yelr. 141; Cro. Jac. 
 261 ; Freem. 112 ; 2 Lutyr. 1143 ; 2 Salk. 
 619; 8 Wils. 139; Co. Ent. 617 b; East. Enfc 
 649. 
 
 (»n) Id. Ibid.; Bill. N. P. 809. 
 
 \n) Post, vol. iii.; and see Bui. N. P. 810; 
 Co. Ent. 517; East. Ent. 549;Tidd, 9tlied. 850. 
 
 (o) Gilb. C. P. 105; 2 Lutw. 1148; in gen- 
 eral, ante, 459. 
 
 (p) 3 Lev. 120; Bui. N. P. 311. 
 
 {q) Cro. Elizi 49; 2 Lutw. 1143; Bui. N. 
 P. 810. 
 
 (r) Freem. 252 ; 1 Stra. 493 ; 2 Smith's 
 Eep. 396. Form of affidavit of plea of bank- 
 ruptcy, M'Dlel. & Y. 850. As to pleas of 
 abatement, ante, 462. t^hen pleaded at the 
 
 assizeSj the affidavit shonid be sworn before 
 one of the judges j not before a commissioner, 
 8 C. & P. 408. 
 
 (s) 1 Marsh. 70; 5 Taunt. 333, S. C; serf 
 vide 3 Price, 200. 
 
 (/) .ante, 659. 
 
 («) Bao Ab. Pleas, 2 ;Telv. 181; Freem. 
 252 ; Bui. N. P. 809. But see 2 Smith's Rep.. 
 669, where such a plea was mended upon 
 terms ; and vol. xxiv. of Mr. Justice Ashhurst's 
 Paper Bocks, 154. acc~ 
 
 (x) Bro. Abr. Continuance, pi. 5, 41; 
 Jenk. 160; Gilb. C. P. 105. 
 
 (j) 1 Stra. 493; cites Moore, 871 ; and see 
 1 Ld. Eaym: 266; 6 Mod. 9; but see Hob. 81; 
 contra; Com. Dig) Abatement, I. 24. 
 
 (1) Vioary «. Moore, 2 Watts, 451. 
 
 (2) In covenants against executors the defendants pleaded nisi prius, as the plea of pats 
 darrein continuance, & judgment recovered upon a bond of a testator after the last continu- 
 ance, to wit : on the second day of August, as to the preceding Trinity Term, and the plain- 
 tiff having pleaded over — Held, that the plea was an answer to the action, although by fiction 
 of Law the judgment was obtained before the last continuance. Where - the purposes of jus- 
 tice require that the true time when a judgment is recovered, or a writ tested, shall be shown, 
 it is competent to a party to avail himself of the fact by averment in pleading. Lyttleton v. 
 Cross, 5 Dowl. & Ryl. 175. 
 
 (3) M'Gowan v. Hoy, 4 3. J; Marsh. 223. Pickering *. Pickering, 19 N. Hamp. 389. 
 
 (4) In Jackson v. Peer, 4 Cowen, 418, it was held that a plea of this character may in general, 
 be pleaded without being verified by affidavit. See MbGowan v. Hay, 4 J. J. Marsh 228 ; Mor- 
 row t). Morrow, Const. Eepj 456; NiehoU v. Mason, 21 Wendell, 889. 
 
 (5) See Sharp v. Witham, 2 M'Clell. & Younge. 350. 
 
 t See American Editor's Preface. 
 
OP PLEAS PUIS DARREIN CONTINUANCE. 
 
 660 
 
 TEKU. 
 
 (af), provided it be pleaded in, proper time (a). When a plea puis dar- '™b ok 
 rein continuance is put in at the assizes, the plaintiff is not to reply to it 
 there, for the judge *has no power to accept of a replication, nor to try 
 it (1) ; but ought to return the plea as parcel of the record of nisi prius ; 
 and if the plaintiff demur, it cannot be argued there (6). Where the 
 plea puis darrein, continuance is certified on the back of the postea, and 
 the plaintiff demurs, if the defendant, on the expiration of a rule given 
 for him to join in denlurrer, neglect to do so, the plaintiff may sign judg- 
 ment (c). 
 
 The Courts will sometimes set aside a plea puis darrein continuance 
 when it is manifestly fraudulent, and against the justice of the case. But 
 where an action was brought by two of lour executors, and those who were 
 not joined in the-action, released to the defendant, and who pleaded such 
 release puis darrein continuance, the Court refused to set aside such plea, 
 the plaintiff having failed to establish a case of fraud ; and as a general 
 rule a plea of that nature is not to be set aside unless in a case of gross ' 
 fraud (d). 
 
 OF DEMURRERS (fi). 
 
 When the declaration, plea, or replication, &c. appears on iheface of it °' "'^- 
 and without reference to extrinsic matter, to be defective, either in sub- "^^^ 
 stance or form, the opposite party may in general demur (/) (2). A de- pbopkb. 
 murrer has been defined to be & declaration that the party demurring will 
 " go no further," because the other has not shown sufficient matter against 
 i^him that he is bound to answer (g-). Where the pleading is defective in 
 substance it is advisable in general to demur, because the party succeed- 
 ing thereon is entitled to costs ; but where the judgment is reversed on a 
 wrrt of error, &c. (K) no costs are recoverable. 
 
 (z) 2 Wils. 157; 3 T. R. 544; 1 Marsh. 70, 4 W. 4, reg. 4, orders that no demurrer nor 
 
 280; 5 Taunt. 833; 1 Stark. 62. pleading subsequent to the declaration shall in 
 
 (a) When or not set aside, 3 Chitty's Gen. any case he filed with any officer of the Court, 
 
 Prac. 120; 2 Cr. & M. 384; 3 B. & Ores, but shall always be delivered between the par- 
 
 612. ties; and see Jervis's Rules, 86, 87. 
 
 (6) Com. Dig. Abatement, 1. 24. If plead- (/) Moore, 551. Surplusage not demur- 
 
 ed by one of several defendants, the plaintiff Table, 11 East, 65; Plead. Ass. 292; ante, 
 
 cannot at the trial confess the plea, &c. 3 C. & 229. 
 P. 372. (ff) 5 Mod. 132; Co. Lit 71 b. 
 
 (c) Bac. Ab. Pleas, Q.; Bui. N. P. 311; 1 (A) 1 Stra. 617; Tidd, 9th ed. 1181. As 
 Stark. 62. As to costs, see 4 B. & 0. 117; 6 to costs where the judgment is arrested', see 
 D. & R. 81, S. C; 1 M. & P. 138. Cowp. 407; Tidd, 9th ed. 985. On a new 
 
 (d) Herbert v. Piggott, 2 Crom. & M. 384; {rial, /(/. 916; and where a venire de novo ia 
 but see Smith v. Newman, 4 B. & Aid. 419; awarded, id. 923. It seems, that although an 
 7 Taunt. 431; 1 Chitty's Rep. 390. objection appear on the record, and might be 
 
 (c) As to demurrers in general, see Bao. Ab. taken advantage of by motion in arrest of 
 
 Pleas, N.; Com. Dig. Pleader, Q, ; Saund. Rep. judgment, or writ of error, yet if it be of 
 
 Index to notes, "Demurrer;" Tidd, 9th edit, such a nature that the action clearly cannot 
 
 694; Stephen, 2d ed. Index, "Demurrer." be maintained, the judge at nisi prius will • 
 
 As to the joracf/ce respecting demurrers, see- 3 nonsuit the plaintiff, 1 Campb. 256; Cowp. 
 
 Chit. Gen. Pr. 762 to 768; Beg. Gen. Hil. T. 407. 
 
 (1) When pleaded at nisi prius, a copy of it need not then be served. Jackson i;. Clow, 13 
 Johns. 157. 
 
 (2) An objection that a declaration is defective should be taken either by a demurrer or a motion 
 in arrest of judgment, and the point is not properly raised on the trial to the jury of the issues 
 of fact. Crooker v. Gilbert, 9 Cushing, 131. 
 
©62 OP DEMURRERS. 
 
 '*="'' *It should, however, be remembered that a demurrer admits the facts 
 peopee. piQa,ded (i), and merely refers the question of their ^eij-aZ sufficiency to the 
 decision of the Court (i). If, therefore, there be a reason to deny the 
 facts, it is better not to demur, but to plead thereto, especially if the defect 
 in the opposite pleading be of so substantial a nature that even after a ver- 
 dict on the issue the judgment might be arrested, or a writ of error could 
 be sustained (/c). But the common doctrine that a demurrer admits the 
 facts stated in the pleading, demurred to, must be understood with this 
 qualification, that it is so only upon the argument, for it has been held that . 
 the statement iu a special plea which has been holden bad on demurrer 
 are not evidence for the plaintiff on the general issue, although the jury are 
 to assess damages as well as to try the case on the general issue (/) (2). 
 When the objection is a defect in matter o?form a special demurrer ia 
 still permitted ; for, as observed by Lord Hobart, " the statute of Eliza- 
 beth requiring a special demurrer, does -not entirely rejeot/orm, for that 
 would be destructive to the law as a science, but it only requires that the 
 defect in form be discovered, and not used as a secret snare to entrap" (w). 
 And it was observed by Eyre, Chief Justice, that, " iniinite mischief 
 has been produced by the facility of the Courts in overlooking errors 
 in form ; it encourages carelessness, and places ignorance too much upon 
 a footing with knowledge amongst those who practice the drawing of plead- 
 ings" {n). Where, however, there are merits to be tried, it is in prac- 
 tice more liberal not to demur for a mere mistake in form- But it some- 
 times becomes material to demur, although the objection be of a mere 
 technical description, if the adverse party will not alter his pleading ; as in 
 instances in which the defective pleading imposes upon the opponent the 
 necessity of adducing more evidence than would have been requisite, had 
 the pleading been properly framed. : as if nil debet be pleaded to a declar- 
 ation on a deed, or de injuria generally be replied where the replication 
 should traverse one of the several matters alleged in the plea. 
 To what There are some well-founded objections to pleadings, but which cannot 
 the oppo- ^^ ^^^ ground of demurrer ; such are principally the non-compliance with 
 nent can- some rule of practice not affecting the substance of pleading (o) (3). Thus 
 not demur, if contrary to Reg. Gen. Hil. T. 4 W. 4, reg. 8, venue be repeated in the 
 
 (i) That is, when well pleaded, Com. Dig. ing over, and by verdict, &c. post. 
 Pleader, Q. 6; 1 Saund. 837 b, u. 3; Steph. 2d (I) Montgomery v. Richardson, 5 Car. & P. 
 
 ed. 175; 11 Price, 235; ante, 530; but see 247; Firmih v. Crucifix, W. 247. 
 note Infra. (m) Hob. '232; 1 Saund. 337, note 3. 
 
 {k) 4 Co. Rep. J4 a. As to the expediency (li) 1 B. & P. 59. 
 
 of demurring or pleading, in general, see Steph. (o) 1 Bing. N. C. 363, 354, 4 M. & Seott, 
 
 2d ed. 182. What defects are fcured by plead-. 417; 3 Dowl. 2; 2 Dowl. 236. 
 
 (1) Weems v. Willard, 2 Harr. & Gill. 143. A general demurrer admits the truth of all the 
 facts, that are well pleaded. Morgan v. BuUard, 1 A. K. Marsh, 558; Neal v. Clautioe, 7 Har. 
 & Johns. 362; M'Collough v. Cowan, Const. Kep. 516; Coxe v. Galick, 5 Halst. 328; Vide Pease 
 V. Phelps, 10 Conn. 62. Catlin v. Glover, 4 Texas, 151; Chambers v. Miller, 9 Texas, 236. 
 
 But't does not admit an averment at the end of a special declaration in contract, that the de- 
 fendant owes the plaintiff the sum before mentioned, that being a mere statement of a conclusion 
 of law from the feicts stated. Millard v. Baldwin, 3 Gray, 484; Chapiii v. Curtis, 23 Conn. 
 888. 
 
 (2) Pease v. Phelps, 10 Conn. 62; Perry u. Rice, 10 Tesfas, 367; Stimson v. Gardiner, 88 
 Maine, 94. 
 
 (3) The sufficiency of a plea can be determined only on demurrer. Day v. Hamburg, 1 
 Browne, 76, A denjurrey dpea not reach tli« order of pleading, Cleaveland i>. Chandler, 3 Stew* 
 art, 489, 
 
OB" DEMURRERS, ' *663 
 
 body of a declaration, the defendant cannot on that account demur, but if '"'en 
 talten advantage of at all, should obtain *a summons and judge's order to oRSPEciAji. 
 strike out the objectionable venue (jo). So in general an inaccuracy in the 
 form of commencirpg a declaration is not ground of demurrer (^). 
 
 Demurrers are either g-ewera^ or special ; f^eneral, where no particular 
 cause is alleged; the special, when the particular imperfection is p(jinted out 
 and insisted upon, as the ground of demurrer; the former will suffice when 
 the pleading is defective in substance, and the latter is requisite where tlie 
 objection is only to the form of pleading (r) (1). At common law a spe- 
 cial demurrer was not necessary, except in the case of duplicity (s), and 
 the party was at liberty on a general demurrer to take advantage of any 
 objection, however trifling (<). To remedy this the 27 Bliz. c. 4, after re- 
 citing " that excessive charges and expenses, and great delay and hindrance 
 of justice, have grown in actions and suits between the .subjects of this 
 realm, by reason that upon some small mistaking, or want of form in plead- 
 ing, judgments are often reversed by writs of error and oftentimes upon 
 demurrers in law given otherwise than the matter in law, and the very right 
 of the cause doth require, whereby the parties are constrained either utterly 
 to lose their right, or else after a long time and great trouble and expenses, 
 to renew again their suits," enacted " that from thenceforth, after demurrer 
 joined and entered in any action or suit in any Court of record within this 
 realm, the judges shall proceed and give jndgiment according as the very 
 right of the cause and matter in law shall appear unto them, without regard- 
 ing an,y imperfection, defect, or want of form, in any writ, return, plaint, 
 declaration, or other pleading, process, or course of proceeding whatso- 
 ever, except those only which the party demurring shall specially and 
 particularly set down and express, together with his demurrer; and that no 
 judgment to be given shall be reversed by any writ of error for any 
 such imperfection, defect, or want of form, as is aforesaid, except such 
 only as is before excepted." 
 
 ' The chief difficulty that arose in the construction of this statute, was 
 the distinguishirig between what was the matter of form and matter of sub- 
 stance ; and many defects which are noio deemed mere form, were holden 
 not to be aided by this statute, such as the omission of the words vi et 
 armis, contra pacem, SfC. (u). To remedy this the 4 & 5 Ann. c. 16, 
 directs, " that where any deniurrer shall be joined and entered in any ac- 
 tion or suit in any Court of record within this realm the judges shall pro- 
 
 ,(p) Farmer v Champneys, 1 Crom. Mf & 468. 
 
 Eos. 369; 2 Dowl. 680, S. C; Fisher v. Snow, (r) Bac. Ab. Pleas, N. 5; Co, Lit. 72 a. 
 
 3 Dowl. 27; Townsend v. Gurney, Id. 29; but (s) 11 East, 565. 
 
 see 3 Dowl. 2. ■ . (0 3 Salk. 122. 
 
 (g) 4 Moore & Seott, 417; Strancban v. (u) Com. Dig. Pleader, 3 M. 7; Bac. Ab. 
 
 Buckle, 1 Harr & Wol. 519; Turner v. Den- Pleas, N. 6; 1 Saund, 81, note 1; Hob. 233; 
 
 inan, 4. Tyr. 313; and see 3 Chit. Gen. Prao. Sav. 88. 
 
 (1) Vide Snyder v. Croy, 2 Johns. 428. Departure or mi.«joinder of counts may be demurred 
 to generally, ^^eay v. Goodwin, 16 Mass. 1; Fairfield v. Burt, 11 Pick. 244. 
 
 Duplicity can be taken advantage of only by special demurrer, Seymour v. Mitchell, 2 Root, 
 146; Smith v. Northup, 1" ib. 887; Otis to. Blake, 6 Mass. 336; Stewardson v. White, 3 Harr. 
 & M'Hen, 355; Martin v. Ray, 1 Blaokf. 291. So of an informality. Singleton v. Carr; 1 
 Bibb. 554. 
 
 Formal defects in a declaration must be specially demurred to, Dole v. Weeks, 4 Mass. 451; 
 Tucker v. Randall, 2 ib. 283. 
 
 So too of the objection, that a pl6a amounts to the general issue. Freeport to. Edgecomb; 1 
 Mass. 459; Whittlesey «. Wolcott, 2 pay, 431; York ?;. Jones, § N. HaiBp.454; Crandall n, 
 Gallttp, 12 Conn. 365. 
 
*664 • OP DEMUBEBRS. 
 
 ^ra^N ceed and give judgment according as tiie very right of the cause *and 
 ^GENEEAi, ^jj^tter in law shall appear unto them, without regarding any imperfection, 
 ' omission, or defect iu any writ, return, plaint, declaration, and other plead- 
 ing, process, or cause of proceedings whatsoever, except those only which 
 the party demurring shall specially and particularly set down and express, 
 together with his demurrer, as causes of the same notwithstanding that such 
 imperfection, omission, or defect might have heretofore been taken to be 
 matter of substance, and npt aided by the above-mentioned statute, so as 
 sufficient matter appear in the said pleadings, upon which the Court may 
 give judgment according to the very right of the cause." And it is then 
 so provided, " that no advantage or exception shall be taken of or for an 
 immaterial traverse, or of or for the default of entering pledges upon any 
 bill or declaration, or of or for the default of alleging the bringing into 
 Court any bond, bill, indenture, or other deed whatsoever, mentioned in 
 the declaration or other pleadings, or of or for the default of alleging of 
 the bringing into Court letters testamentary, or letters of administration, 
 or of or for the omission of vi et armis, et contra pacem, or either of them, 
 or of or for the want of averment of hoc paratus est verificare, or hocpara- 
 tus est verificare, per recordum ; or of or for not slleging prout patet per re- ■ 
 I cordum; but the Court shall give judgment according to the very right of 
 the cause as aforesaid, without regarding any such imperfections, omissions, 
 and defects, or any other matter of like nature (x), except the same shall 
 be specially and particularly set down and shown for cause of demurrer ." 
 It was provided by the seventh section that the act should not extend to 
 proceedings upon any penal statute ; but this was altered by the 4 Geo. 2, 
 c. 26, s. 4 {y). 
 
 Since these statutes, the party on a general demurrer can- only take ad- 
 vantage of defects in substance (1) ; and therefore, if the defect objected 
 to be not clearly of that nature, it is safest to demur specially, in which 
 case the party may not only take advantage of those particularly pointed 
 out, but also of any substantial defect, though not specified (2) (2). The 
 effect produced on the right to demur generally or specially, by the cir- 
 cumstance of the defendant being under terms of pleading issuably, has 
 already been considered (a). The plaintiff need never demur specially to 
 a plea in abatement (6). 
 
 oNi^To A -^ demurrer is either to the whole, or to a part only of a declaration. 
 
 PART. If in covenant there be several distinct assignments of breaches of cove- ' 
 Whereonly nant, some of which are sufScient, and the others not, or if a declaration 
 of the*"^ contain several counts, and only one be bad ; the defendant should only 
 pleading, demur to the defective assignment of breach, or the insufficient count ; 
 [*665 ] for if he were to demur to the whole "declaration, the *Court would give 
 judgment against him (c) (3). This rule equally applies to one count, part 
 
 (a:) See sbservations as to extent of these 695; 2 Wils. 10. 
 
 words, 2 Hen. Bla. 262; 16 East, 359. (a) Ante, 510, 511. 
 
 (y) WiUes, 601. (A) 2 M. & Sel. 485. 
 
 (z) 1 Saund, 337 b, note 8; Tidd, 9th ed. (c) Ferguson v , Mitol^ell, 2 Crom. M. & 
 
 (1)5 Greenl. 415. Vide Herd's Executors v. Dishman, 2 Heu. & Mun. BOO. 
 
 (2) Vide Burnet v. Bisco, 4 Johns. 235. 
 
 (8) Belton v. Gibbon, 7 Hal8t.76; Wolf v. Luyster, 1 Hall, 146; Seddon v. Senate. 13 East, 
 76, 77; Ward w. Sickrider, 3 Caines, 265; Roe v. Crutchfield, 1 Hen. & Mun. 861; Whitney v. 
 Crosby, 8 Caines, §9; Backus ti. I^iohardson, 6 Johns. 476; Eingsley v. Bill, 9 Mass. 199,200; 
 
Of DEMtJRREHS. 665 
 
 of Whichis EtifBcient, and the residue is not, provided the matters alleg- when 
 ed are divisable in their nature : as if a plaintiff declared in tort for taking '""''' ™ ■»• 
 his money, and also certain goods, without showing that the goods were ^^^^' 
 nis property, the count will be good as to the money, and if the defendant 
 demur generally to the whole count, the plaintiffwill have judgment (c£)(l). 
 So where the plaintiff declared in scire facias, upon a judgment in K. 
 B. with a provt patet per recordum, and also on affirmance of that judg- 
 ment in error in the Exchequer Chamber, without sl prout patet, &c. and 
 the defendant demurred to the whole, the Court held the demurrer too 
 large, as the plaintiff's demand was divisible, and judgment was given for 
 the plaintiff (e). So, if part of a breach be good, it is no cause of demur- 
 rer to the whole, that special damage is laid which is not recoverable (/) ; 
 but where there is a misjoinder either of parties or causes of action or 
 breaches, the demurrer must be to the whole (g-). And if a plea, auowry, 
 or replication, each of which, we have seen, is in its nature entire'be bad in 
 part, it is bad for the whole (A) ; and in that case the demurrer should be 
 to the whole plea or replication (i), or it will be a discontinuance (k). 
 There is an exception in the case of a plea of set-off which contains a 
 statement that distinct debts are due from the plaintiff, for such averments 
 are considered to be similar to separate counts in a declaration ; and if 
 one part be good, a general demurrer to the whole will be bad (/) (2j. 
 
 Eos. 687; and see Spyer v. Thelwell, id. 692; rough's observations,) that the case cannot ba 
 
 5 B. & Aid. 712,715; 11 East, 665; Com. considered an authority that the wAoie of the 
 
 Dig. Plead. Q. 3, 5; 1 Saund: 286; and id. declaration should have been demurred to. The 
 
 note 9; 2 Id. 379, 880, note 14; 1 Wils. 284; rule in the text would not apply to a count in 
 
 1 New Rep. 43; Bac. Abj Pleas, B. 6; Steph. assumpsit upon a contract, the whole of which 
 
 2d ed. 450. is considered entire, 
 
 (rf) 3 S.iund. 279, 374, note 1 ; 5 Eep. 34 b ; (c) 11 East, 565. 
 
 1 Sails. 218; 2 Saund. l7l a, n. 1; 1 Mod. (f) 5 B. & Aid. 712; 1 D. & K. 361, 8. C.i 
 
 271; Com. Dig. Pleader, C. 82; see the form; 3 T. E. 374. 
 
 1 Saund, 108, 109. In 8 Moore, 379, the (ff) 1 M. & Seh 355; 4 T. R. 547; ante, 
 . plaintiff declared in trespass for breaking and 205; 2 Saund. 210, and 210 a. 
 
 entering his close, and also his house, and (ft) «inic, 546, 567, 044; 1 Saund. 28; and 
 
 seizing and taking his goods, "to witj one hun- id. a. 2,286,337; n. 7; 2Id.V2i; 1 Salk. 
 
 dred articles of furniture," without describing 312; 1 T. R. 40; 3 Id. 374. Effect of one 
 
 their nature or quality. The defendant, though plea referring to another, 1 M. & P. 147; 2 Y. 
 
 nndei- terms of pleading issuably, demurred & J. 11, S. Cj 
 
 generally, to the wAoie declaration. The court (i) See an exception in an avowry, 1 Saund. 
 
 held that the plaintiff could not sign judgment 286. 
 
 as for want of a plea; for the declaration was (k) Com. Digi Pleader, Q. 3. 
 
 , substantially defective as regarded the goods. (l) 2 Bla. Rep. 910; ante, 5iQ. 
 
 Semble (notwithstanding Mr. Justice Bur- 
 Martin o. Williams, 13 Johns. 264; Monell II. Colden, 13 Johns. 402; Adams o. Willoughby, 
 1 Johns. 65; Moor v. Deweesj Litt. Sel. Co. 227; Farnham v. Hay, 3 Blackf. I(i7; Lusk v. Cook, 
 Breeze, 53; Wire v. Bush, 4 Lftt. 429; Pettigrew v. Pettigrew, 1 Stew: 580; Brown ii. Steb- 
 binsj 4 Hill, 154; Mumford v. Fitzhurgh, 18 Johns. 45.7; Nash v. Nash, 16 Illinois, 70; Hooka 
 V. Smith, 18 Alabama, 338; Lockwood v. Rogers; 1 Chand. (Mis.) 21. So,. if the defendant 
 plead several plaas, all of which are demurred to, if one be good, judgment mtist be given for 
 the defendant. Sevey v. Blacklin, 2 Mass. 541; Harrison v- M'Intoshj 1 Johnsi 385; Cuyler 
 V. Trustees of Rochester, 12 Wend. 169; Vermont v. Society for Propagating the Giospel, 2 Paine 
 C. C. 545. • ■ _ 
 
 ■^1) So in a plea of outstanding judgment by an executor or administrator, where some of the 
 judgments are well, and others badly pleaded, the plaintiff should demur only to those which 
 are insufficiently pleaded, and traverse the residue. Douglas v. Satterlee; 11 Johns. 16. But it 
 is error to demur and reply to the same plea. Lang v. Lewis, 1 Rand. 277. 
 
 (2) And where breaches are assigned in the replication, if one be bad, it does not vitiate the 
 others. Martin v. Williams, 13 Johns. 264; Cuyler «. The Trustees of Rochester, 12 Wend. 169. 
 The plaintiff cannot demur and reply to the same plea. Riley ii. Harkness, 2 Blackf. 34. A 
 defendatt cannot demur and plead to thd sanle count at the same titne. Taylor v. Rhea, Minor, 
 
*666 dp dbMuerehs. 
 
 TfHEif ju general a party cannot demur, unless the objection appear on thei 
 """ar™ '^ fo-ce of the preceding pleadings (jn) ; but in some cases, where the pkin- 
 As to set- tiff in tlie declaration partially states a deed which is defective, *or contains 
 ting out a matter qualifying the part stated, the defendant may crave oyer of the 
 oyer, "and ^'i^^-, and set forth the whole, theteby making it part of the declaration, 
 demurring, and then demur either in respect of the defect in the deed, or the improp-i 
 er manner in which the plaintiff has stated it j and this is the proper course, 
 when upon oyer it would appear that a bail bond is defective («). So, a 
 deed untruly stated in a plea, being set out upon oyer by the plaintiff, be- 
 comes part of the plea, and if it thereby appear that the plea is false, thei 
 plaintiff need not show any matter in his replication to maintain his action, 
 but may demur (o); for it is a general rule that an indenture set out upon 
 oyer becomes part of the preceding plea (/y). Wc have seen that Reg. 
 Gen. Hil.'T. 2 W. 4, reg. 44, orders " that if a defendant after craving 
 oyer of a deed, omit to insert it at the head of his plea, the plaintiff, on 
 making up the issue or demurrer book may, if he think fit, insert it for him ; 
 but the cost of such insertion shall be in the discretion, of the taxing 
 ofhcer" (9). 
 
 Forms of Jq point of Jorrri, no precise words are necessary in a demurrer, and a 
 emurrer. ^j^^ ^hich is in Substance a demurrer, though very informal, will be con- 
 sidered as such (/•) ; and it is a general rule that there cannot be a demur- 
 rer to a demurrer (.s). The usual form of a, general demurrer to a declara- 
 tion after stating the title of the Court and term, and the names of the 
 parties in the margin, and the defence, as in the commencement of a plea (t), 
 alleges that the declaration and the matters therein contained, as therein 
 stated, are not sufficient in law to enable the plaintiff to support his action, 
 and concludes with a verification and an appropriate prayer of judgment, 
 though a verification is unnecessary (m) ; or if the demurrer be to a particu- 
 lar count or breach, it is qualified accordingly {x). A general demurrer 
 to a plea in abatement, states that it is not sufficient to quash the bill or writ, 
 and prays judgment that the defendant may answer over or further to the 
 declaration (jy). ToapZed inbari\vQ deniurreris,thatthe plea and themat' 
 ters, &c. are not sufficient in law to bar the plaintiff, &c. wherefore for want 
 
 (ffl) Moore, 551.' See the forms and notes, 434. 
 2SauBd. 864 to367i Com. Dig. Pleader, 3; (o) 1 ?aund. 316, 317. 
 
 Wills. 119. (p) 1 Siiuud. 817; a«te, 48Sj 
 
 (n) 2 Saund. 60, in notis. See the exoep- (g) Jervis's Rules, 64, note (i). 
 tious, and when the facts must be pleaded, an- (/) 5 Mod. 131 ; 3 Lev. 222; 2 Saundi 124, 
 
 te, 483, 481, 431^ and 1 Saund. 296 b. But note 6; Plowd. 400. As to the form in gen- 
 
 if the deed be described in the declaration j and eral, Com. Dig Pleader, Q. 3. 
 on the defendant's setting it out on oyer, and (s) Biio. Ab. Pleas, n. 2; Salk. 219; Ste- 
 
 demurring, it appear that as to some part of phen, 2d edit. 281. 
 
 the deed immaterial to the action, there is a (/) As o7i<e, 549; and see the form pott, 
 
 ■variance between the deed as described and vol. iii. 
 
 set out on oyer, this will not support the de- (u) Id.; Co. Lit. 71 b; 1 Leon. 24. 
 murrer, not even if the variance be such as (x) Post; vol. iii. 
 would be available on a plea of non est fac- (y) Post, vol. iii; 
 turn, 1 B. & C. 858 ; 2 D. & R. 662, S. C. ; ante, 
 , ji._ 
 
 414 ; iGayle v. Smith; ib. 83; Hair t>. Weaver, 1 Blackf. 77; Rickert v, Snyder, 6 Wendell, 104. 
 Where a defendant pleads and demurs to the same matter, and issues of fact are tried, he will 
 be presumed to have waived his demurrer. Morrison v; Morrison, 8 Stewart, 444. See Bra- 
 han VI Collins, Minor, 169; Peacock v. Banks, ib; 387. 
 
 But where part of a count is sufficient and a part insufficient if the matters are divisible, the 
 defendant may plead to the formei' and demur to, the latter; Harwood vi Tompkins, Zabr. (N> 
 Jen) 425. 
 
OP DEMUJJBEES. *6Q^ 
 
 of a sufficient plea he prays judgment *and his damages, &c. (according to "osms ot 
 the nature of the action) (z). If the demurrer be to a, repHcation.rejoinder, "™™»^ 
 Sfc. after stating that the same, and the matters therein contained, are not 
 sufficient in law, it concludes with a prayer of judgment either against or for 
 the plaintiif, according to the situation of the 'party demurring (a). If the 
 demurrer be special the assignment of the causes of demurrer (1) were 
 usually introduced at the end of the general demurrer in the following 
 
 words :— " And the said , according to the form of the statute in such 
 
 case made and provided (6), states and shows to the Court here the follow- 
 ing causes of demurrer to the said declaration, [or, ' to the sa.id Jirst count 
 of the said declaration,' or, ' to the said breach of covenant first above as- 
 signed,' or, ' to the said p/ea, &c.' "] (c). Audit Was usual, after stating 
 the causes of demurrer, to conclude, " and also for that the said declara- 
 tion, [or, 'jfirst count,' or ' plea,' or ' replication,'} is in other respects un- 
 certain, informal, and insufficient ," but these latter words are wholly una- 
 vailable, for when it is necessary to demur specially it is not sufficient to 
 aver that the pleading " wants form," but it must be shown specially in 
 what point in particular the form is defective, and as it has been said, the 
 statutes oblige the party demurring to lay his finger upon the very point (d). 
 Therefore a demurrer for duplicity, t/iatit is double and v) ants form, is not 
 sufficient, and it should show in what the duplicity consists (e) (2) and after 
 the passing of the statute of Elizabeth a rule was made, "that upon de- 
 murrers the causes shall be specially assigned, and not involved with gene- 
 ral unapplied expressions of ' double,' ' negative pregnant,' ' uncei'tainty,' 
 ' wanting form,' and the like ; but shall show specially wherein, in order 
 that the other party may as the cause shall require, either join in demurrer 
 or amend, or discontinue his action" (/). If the plaintiff demur to a plea 
 in abatement, as if it had been a plea in bar, it will be a discontinu' 
 ance (g-) ; and a demurrer to such plea should conclude with praying judg- 
 ment that the writ or bill may be adjudged good, atnd that the defendant 
 may answer further or over thereto (Ji) . 
 
 The Reg. Gen. Hil. T. 4 "W. 4, reg. 14, f thus orders ; " The form Form of 
 
 of a demurrer shall be as follows. — ' The said defendant, by his at* "^e^irrer 
 
 torney, [or ' in person, &c.' or ' plaintiff,'] says, that the declaration [or scXed by 
 ' plea, &c.'] is not sufficient in law,' showing the special causes of demur- Reg. Gen. 
 rer, if any." , HU.^T. 4 
 
 And that the form of a joinder in demurrer shall be as follows,-^—" The Form of 
 
 (2) Co. Lit. 71 b; post, vol. iii. 1 Saund. 160, n. 1; 337 b, n. 3; Willes, 220; J<'™<ier in 
 
 (ffl) Post, vol. iii. Doc. PI. 147; 1 M. & P. 102; 4 Bing. 428, demurrer 
 
 (i) 4 & 5 Anne, o. 16. S. C. aspresonb- 
 
 (c) Post, vol. iii. (/) Rule, Michaelmag Term, a. d. 1654, ^ by Keg. 
 
 (d) Com. Dig. Pleader^ Q. 9; Hob. 282; per sect. 17; Willes, 220; 1 Saund. 160, note 1; j^*?"^"- 
 Holt, C. J., 1 Salk. 219; 1 Saund. 10, n. 1; 337 b, note 1. ■■■• * »». 4. 
 337, n. 3. {g) 1 Salk. 218; antei 463, 464. 
 
 (c) 10 East, 79; 1 Wils. 219; 1 Salk. 219; (h) 2 Saund. 210 g, n. 9; ante, 465. 
 
 (2) A special demurrer will not be taken as a general one as to all causes of demurrer'not 
 pointed out. Tucker v. Randall, 2 Mass. 288. 
 
 After a general demurrer the party cannot alter his plea to a special demurrer. Smith ». 
 Northup, 1 Root, 387; 
 
 (2) Currie v. Hsnry, 2 JohnS. 483; Stewartsou v. White, 3 Har. & M'Hen. 455; Kyan v. 
 Watsonj 2 Greenl, 382; Commonwealth v. Blake, 20 Pick. 856; Wolff v. Luyster, 1 Hall, 
 146. 
 
 t See American Editor's Preface. 
 
 Vol. I. 86 
 
OF DEMURRERS. 
 
 FORMS OF said plaintiff [or ' defendant'] says that the declaration [or * ' plea, &c.'] 
 DEMusREK. -^ g^jj^ient in law." Perhaps these are two of the best instances of what 
 conciseness may suffice in pleading. 
 
 Reg. .Gen. 
 Hil. T. 4 
 W. 4. reg. 
 1 , requires 
 one well 
 founded 
 objection to 
 be stated 
 in margin: 
 
 When the 
 Court will 
 give judg- 
 ment 
 
 against the 
 first defec- 
 tive 
 pleading. 
 
 The Reg. Gen. Hil. T. W. 4, reg. 2, f contains a further excellent 
 regulation requiring an explicit statement in the margin of the demurrer 
 of one at least prima facia well founded objection. It orders that " In 
 the margin of every demurrer, before it is signed by counsel, some mailer 
 of law intended to be argued shall be stated, and if any demurrer shall be 
 delivered without such statement, or with a frivolous statement, it may 
 be set aside as irregular by the Court or a judge, and leave may be given 
 to sign judgment as for want of a plea. Provided that the party demur- 
 ring may at the time of the argument insist upon any further matters of 
 law, of which notice shall have been given to the Court in the usual 
 way" (i). 
 
 A party should not demur unless he be certain that his own previous 
 pleading is substantially correct, for it is an established rule that upon the 
 argument of a demurrer, the Court •will, notwithstanding the defect of the 
 pleading demurred to, give judgment against the party whose pleading was 
 first defective in substance (1) ; as if the plea which is demux-red to be bad 
 
 (i) Jervia's Rules, 87, note b; Reg. Gen. 
 Hil. T. 4. W. 4, reg. 3, orders that "No 
 rule for joinder in demurrer shall be required, 
 but the party demurring may demand a join- 
 der in demurrer, and the opposite party shall. 
 be bound within four days after such demand 
 to deliver the same, otherwise judgment. 
 
 Reg. 4. " To a joinder in demurrer no 
 signature of a Serjeant or other counsel shall 
 be necessary; nor any fee allowed in respect 
 thereof. 
 
 Reg. 5. " The issue or demurrer book shall, 
 on all occasions be marde up by the suitor 
 his attorney or agent, as the case may be, 
 and not as heretofore by any officer of the 
 Court. 
 
 Reg. 6. " No motion or rule for a concilium 
 shall be required; but demurrers, as well as 
 special cases and special verdicts, shall be set 
 down for argument, at the request of either 
 party, with the clerk of the rules in the King's 
 Bench and Exchequer and a secondary in the 
 
 Common Pleas, upon payment for a fee of one 
 shilling, and notice thereof shall be given 
 forthwith by such party to the opposite party. 
 Reg. 7. " Four clear days before the da.y 
 appointed for argument, the plaintiff shall de- 
 liver copies of the demurrer book, special case, 
 or special verdict, to the lord chief justice of 
 the King's Bench or Common Pleas, or lord 
 chief baron, as the case may be, and the senior 
 judge of the court in which the action is 
 brought ; and the defendant shall deliver copies 
 to the other two judges of the Court, next in 
 seniority ; and in default thereof by either party, 
 the other party may on the day following de- 
 liver such copies as ought to have been so de- 
 livered by the party making default : and the 
 party making default shall not be heard until 
 he shall have paid for such copies, or deposited 
 with the clerk of the rules in the King's Bench 
 and Exchequer, or the secondary in the Com- 
 mon Pie as , as the case may be, a sufficientsum 
 to pay for such copies." 
 
 (1) Kilgour V. Miles, 6 Gill. & Johns. 268; Boteler v. The State, 8 Gill. & Johns. 883; Mur- 
 dock V. Winter, 1 Harr. & Gill. 471; Allen v. Crofoot, 7 Cow. 46; The Ordinary v. Bracey; 1 
 Brevard, 191; Reynolds v. Torrance, 3 Brevard, 49; Vide Herd v. Dishman, 2 Hen. & Man. 
 652; Smith v. Walker, 1 Wash. 135; Stephen v. Taliaferro, 1 Wash. 155; Patcher v. Sprague, 
 2 Johns. 465; Bennet «. Irwin, 3 Johns. 866; United States u. Arthen, 5 Cranch,-257; Smith 
 V. Wilson, 8 East, 442; IJarruso v. Madan, 2 Johns. 149; Gelston v. Burr, 11 Johns. 482; 
 All the pleadings, therefore, previous to that which is held bad must be considered as having 
 been regarded good in form. Burgess d. Lloyd, 7 Maryland, 178; Spencer v. Southwick, Id. 
 683, 587; Hallett v. Holmes, 18 Johns, 30; Wyman v. Mitchell, 1 Cowen. 316; Phoebe v. Jay, 
 Breese, 207; Inglebart v. State, 2 Gill & Johns. 235; Bender v. Graham, Minor, 269 ; Clark ti. 
 Murphy, 1 Mis. 114; Slack v. Price, 1 Bibb, 272; Bodine v. Wade, ib. 458; Sargeant v. John- 
 son, 1 M'Cord, 386; Roger v. Smiley, 2Port. 249; Tillotson v. Stiff, 1 Blackf. 77; Hcadington v. 
 Neff, 7 Ohio, 229; Pearaall v. Dwight, 2 Mass. 84; Frost v. Hammatt, 11 Pick. 70; Day v. 
 Pickett, 4 Munf. 104; Morgan v. Morgan, 4 Gill & Johns. 395 ; Dorsey v. Pannell, ib. 471 ; Utica Ins. 
 Co. V. Scott, 8 Dowen, 709; Griswold v. Nat. Ins. Co. 3 ib. 96. See, however, Keay v. Goodwin, 16 
 Mass. 3. If the declaration contain two counts, one good and one bad, and the defendant plead 
 a plea which goes to the whole cause of action, to which the plaintifT demurs, the latter is, not- 
 
OP DEMURRERS. 668 
 
 the defendant may avail himself of a substantial defect in the declara- '"^'^ ™^ 
 
 COURT WIt6 
 OIVE JUDQ- 
 
 tion (A;) (1), unless such defect has been aided by pleading over (/) ; and „^, „„„„„. 
 if the first fault would constitute error, the Court will decide upon it though ment, &o, 
 it be not noticed in margin of demurrer book (m) ; for on demurrer the 
 Court will consider the who/e record, and give judgment for the party 
 who thereon *appears to be entitled to it (m) (2). But the rule that the [ «669 ] 
 Court, will view the whole record on demurrer does not enable either 
 party to call in aid other parts of the pleadings in the cause, which are 
 expressly withdrawn from the consideration of the Court upon demurrer, 
 and have become the subject of an issue in fact between the parties If, 
 therefore, the court consider the pleading of a party is defective, they will 
 give judgment against him, although it appear from, and is admitted upon 
 other parts of the pleadings on the record, not demurred to, that his op- 
 ponent has become a bankrupt, and that his assignees have the right, &c. : 
 for the Court can, in giving judgment upon demurrer, look only to that 
 part of the record upon which the demurrer arises, and not to the other 
 collateral parts of the record not connected with it (o). And although 
 on the whole record the right may appear to be with the plaintiff, the 
 Court will not adjudge in favor of such right, unless the plaintiff have him- 
 self puts his action upon that ground. Thus, where on a covenant to per- 
 form an award, and not to prevent the arbitrators from making an award, 
 the plaintiff declared in covenant, and assigned as a breach that the de- 
 fendant would not pay the sum awarded, and the defendant pleaded that 
 before the award made, he revoked by deed the authority of the arbitra- 
 tors, to which the plaintiff demurred ; the Court held the plea good, as 
 being a sufficient answer to the breach alleged, and therefore gave judg- 
 ment for the defendant ; although they also were of opinion that the mat- 
 ter stated in the plea would have entitled the plaintiff to maintain his ac- 
 tion, if he had alleged by way of breach that the defendant prevented the ' 
 arbitrators from making their award (p). And the rule that the court 
 will decide upon demurrer against the party who has committed the first 
 fault in pleading, does not apply where the objection to the preceding 
 pleading is merely a defect inform, and such as would be aided, on ag-ew- 
 eral demurrer, by the statute of Elizabeth or Anne, or at common law (<?). 
 By pleading over, many defects iii form are aided (r) ; and we have seen, 
 that upon a demurrer to a plea in abatement, no objection can be taken to 
 the form of the declaration (s). 
 
 {k) 1 Saund. 119, note 7; 285, n. 5; Hob. (p) Marsh «. Bulteel, 6 B. & Aid. 507. 
 
 61; Willes, 476; 2 Wils. 150; 4 East. 602. (?) 2 yent. 222; Stephen, 2d edit. 177. 
 
 [l) Darling K. Gurney, 2 Cr. & M. 226; 2 (r) Post, 671; 1 Ld. Raym. 369, 370; 3 
 
 Dowl. 101; posi671. Wils. 297; Willes, 476; 6 Burr, 2588; Cro. 
 
 (m) 2 Dowl. 104, 105. Eliz. 825; Com. Dig. Pleader, E. 37. 
 
 (n) Seen. (A;) supra; Steph. 2d ed. 176. (s> Lutw. 1592, 1667, 1604; Salk. 212; 
 
 (0) 6 B. & C. 216. Steph. 2d edit. 176, 
 
 withstanding his having committed the first fault in pleading, entitled in the judgment on the 
 count which is good. Ward v. Sackrider, 3 Gaines, 263; Tubbs v. Caswell, 8 Wend. 129; Spring, 
 V. The Bank of Mount Pleasant, 10 Pet., S. C. 257, where it was held, that although the plead- 
 ing demurred to may be defective, the court will give judgment against the party whose plead- 
 ing was first defective in matter of substance. 
 
 (1) The rule is the same whether the demurrer be general or special. Cooke o. Graham, 
 3 Cranch, 235. But where a defendant has pleaded the general issue, he cannot, upon a de- 
 murrer to the replication, attack the declaration. Russell v. Rogers, 15 Wend. 353; Dearborn v. 
 Kent, 14 Wendell, 183. 
 
 (2) Inglehart ». The State, &c. ; 2 Gill & Johns. 236. 
 
669 OF DEMURRERS. 
 
 joiNDEBiN If the plaintiff or the defendant ^om in demmrer, the joinder concisely 
 BianjEBER. contradicts the demurrer, by stating that the declaration, (or the plea, &c.) 
 " and matters therein contained, in manner and form as stated, are 
 sufBcient in law to bar the action," if the demurrer be to a declaration 
 [ *670 ] or " to quash the bill" or " writ," if in abatement, *or " to preclude the 
 plaintiff from maintaining his action," if to a plea in bar; and usually of- 
 fers to verify the declaration or plea, and concludes with a prayer of 
 judgment, though the latter seems unnecessary (<). A joinder in demur- 
 rer to a replication to a plea in abatement, should not conclude with 
 praying judgment for debt and damages, for to conclude in chief in such 
 case would be a discontinuance, and the plaintiff should pray judgment 
 that the defendant may answer over (u) ; but if the defendant has demur- 
 red to a declaration, and concluded his demurrer as in abatement, the 
 plaintiff may join in bar, and shall have judgment accordingly (x) (1). 
 The points relating to amendments have already been partially considered, 
 and are so fully treated of in the books of practice (y) that any further ob- 
 servations upon them in this treatise are unnecessary, 
 demurrer '^^^ ^ & 4, c. 42, sect. 34, enacts, that where judgment shall 
 Tinder 3 & l''^ given either for or against a plaintiff or demandant, or for or against a 
 4.W. i. c. defendant or tenant, upon any demurrer joined in any action whatever, the 
 41, seet. party in whose favor such judgment shall be given shall also have judg- 
 ment to recover his costs in that behalf («). But in a new case it is some- 
 times the practice to direct that the costs shall abide the event of the ac- 
 tion (a). 
 
 (t) Co. Lit 71 b;2 Wils. 74. See forms, trial of variances in setting outf written in- 
 
 post, vol. iii. struments, ante, 319. 
 
 (u) 2 Sannd. 210 g. (z) See the use and operation of this en- 
 
 (i) 3 Lev. 23. actment, Jervis's Rules, 207, note (x) 
 
 (y) Tidd, 9th ed. 696. Amendment at the (o) 3 Dowl. 681; 1 Crom. M. & Eos. 369, 
 
 (1) As to withdrawing demurrer and pleading over after demurrer overruled, see Greening 
 II. Brown, Minor, 853; Bruce v. Lathers 2 Bibb, 294; Patrick v. Conrad, 3 A. K. Marsh, 
 612; Surlott v. Pratt, ib. 174; Kalston v. Bullitt, 3 Bibb. 261 ; Violett v. Dale, 1 ib. 144; Mil- 
 ler V. Heath, 7 Cowen, 101; Hancock u. Vawter, Hardin, 510; Acre v. Ross, 3 Stewart, 288; 
 Trigg V. Shields, Hardin. 168; O'Brien v. Hardy, 3 Har. & Johns. 434. , 
 
 Where a demurrer to a plea in bar is sustained, the judgment should not be respondeat oustef 
 ^ but it should be final. Bell v. Morehead, 8 A. E. Marsh. 158. 
 
.[*671 j 
 
 CHAPTEE X. 
 
 Defects in pleading, when and how aided (1). 
 
 There are several different methods by which defects in pleading are defects 
 aided or cured, without any actual amendment, viz. 1st, By pleading ^h™ 
 over; 2dly, By intendment or presumption after verdict ; and 3dly, By jgt. By 
 the Statutes of Jeofails (a) (2). pleading 
 
 A defect in pleading is aided, if the adverse party plead over to, or o^^'C*)- 
 answer the defective pleading in such a manner that an omission or infor- 
 mality therein is expressly or impliedly supplied, or rendered formal or in- 
 telligible (c) (3). The following are a few instances of an express aider. 
 In an action of debt on a bond, where the declaration specified no place 
 at which the bond was made, it was held that a place of duress " apud B." 
 supplied the omission in the declaration ; as such a plea contained a dis- 
 tinct admission that the bond was made at the place where the alleged du- 
 ress was {d). In an action for slander, where the declaration averred that 
 the plaintiff was forsworn, without showing how, it was determined that 
 this defect was aided by a plea of justification, which alleged that the 
 plaintiff, who was stated in the declaration to be a constable, had taken a 
 false oath at the sessions (e). And again in an action of trespass for tak- 
 ing a hook, where the plaintiff omitted to state that it was his hook, or 
 tha-t it was in his possession ; and the defendant, in his plea, justified the 
 taking the hook out of the plaintiff's hand, the Court held, on motion in 
 arrest of judgment, that the omission in the declaration was supplied by 
 the plea (/). 
 
 [a) It is unnecessary to refer to the law (J) See recent instances, Darling v. Gar- 
 
 of amendment as it is fully noticed in the ney, 2 Cr. & Mees, 226, 230; 2 Dowl. 235, S. 
 
 books of practice. See Tidd, 9th edit. In- C; Peacock «. Day, 8 Dow. 291. 
 
 dex "Amendment;" and 1 Petersdorff'a (c) Com. Dig. Pleader, C. 85, E. 37; Co. 
 
 Abridgment, <f Amendment." See as to Lit. 303 b; 1 B. & C. 29; 3 /d. 192; Steph. 
 
 amendment at the trial in case of variance in 2d edit. 178. 
 
 setting out written instruments, ante, 319; (d) Dyer, 15 a; Com. Dig. Pleader, C. 85; 
 
 and amendments during a trial, see 3 & 4. W. 2 Ld. Raym. 1039 ; 3 T. B. ■ 387, ante, 278, 
 
 4. 0. 42, sec. 23, 24. As to the distinction be- Omission of venue in transitory action cured 
 
 tween the doctrine of amendment and the doc- by judgment by default, &o. ante, 278. 
 
 trine of defects being aided or cured by the (e) Cro. Car. 288; Com. Dig. ut sup. 
 
 above means, without amendment, see post, (/) Sid. 184; Bac. Ab. Trespass, 603; see 
 
 672, 673, 684; Chit. Coll. Stat. 15, note (a), another instance, post, 673. 
 Tidd, 9th edit. 928, 
 
 (1) A plea to the merits admits the right in which the plaintiff sues. Newman v. Mur- 
 phey 1 Hill S C. 153; Edwards «. Ford, 2 Bailey, 461. And also the character in which he 
 sues. Carpenter v. Whitman, 15 Johns. 208. And the regularity of the writ, Grey ». Young, 
 Harper, 38; Hamner v- Eddin^, 3 Stewart, 192. And the authority of the attorney to act for 
 the plaintiff. Lucas v. Bank of Georgia, 2 Stewart, 147. ,■■-,. , , 
 
 A defective declaration may be aided at common law by the plea, and a defective plea by 
 the replication. U. States v. Morris, 10 Wheat, 246; Cummings v. Gray, 4 Stew, and Port. 397. 
 
 See other cases in which defects are regarded as waived or cured by pleadmg. Schermer- 
 - horn V. Jenkins, 7 Johns. 373; Long v. Kinnard, Harper, 47; Wade v. Kelley, 2 Stewart, 448; 
 Garland v Chattle, 12 Johns. 430; Robinson v. Cornwell, 2 Bailey, 137; Anderson v. 
 Bead, 2 Overton, 205 ; Hays v. M'Kee, 2 Blackf. 11 ; Roberts v. Dame, 11 N, Hamp. 226. 
 
 (2) A writ of inquiry of Damages may be tested and made returnable after the second 
 week in term; for it is not a process within the meaning of the statute, Cook v. Tuttle, 2 
 
 Wend. 289. 
 
 (8) Moore v. Leseur, 18 Alabama, 606. ... , „.„ 
 
 if one party expressly avers a fact omitted by the otljer the omission is cured. HUl v. George, 
 
 5 Texas, 87- 
 
671 DEFECTS IN PLEADING, 
 
 DEPE0T3 Many instances are to be found in the older reports and -writers, of cer- 
 ^DED ^^^^ defects being aided by an implied admission in the subsequent plead- 
 1st. By' ing of the adverse party (1). Thus, where in an action by administrator 
 pleading *durante minor e alate, it was not averred that the executor was within the 
 °^®'^" age of seventeen years, it was held that by pleading to the merits of the 
 action, the defect was aided, since the defendant thereby admitted that 
 the plaintiff had authority to sue (g-). There are many cases in which it 
 [ *672 ] has been held that where a particular fact has been informally alleged, 
 and the opposite party, in pleading over, admits the particular fact, either 
 by pleading to some other matter alleged in the defective pleading (A) ; 
 or by pleading in confession and avoidance of the matter so informally al- 
 leged (?) ; the defect will be aided by the admission resulting and to be 
 collected from such subsequent pleading. If in debt on bond to make an 
 estate to ^., the defendant plead that he enfeoffed another to the use of 
 A., (without showing that A. was a party, or had the deed), yet if the 
 plaintiff reply that " the defendant did not enfeoff," this aids the plea {k). 
 So, if the defendant plead an award, without sufficient certainty, and the 
 plaintiff's replication import that the award was made, the uncertainty of 
 the plea in stating that the award was made is aided {T). 
 
 It is, however, unnecessary to maiie any further mention of those cases 
 which have been decided with reference to the aider of mere formal de- 
 fects by pleading over ; for we have already seen, that, at the present day, 
 by virtue of the statutes relative to demurrer, in all cases where any 
 pleading is defective, and the adverse party demurs generally, he will be 
 entirely precluded from availing himself afterwards of omj formal defects 
 in such previous pleading, by the mere effect of his having omitted to point 
 out such defects upon a special demurrer (m'). And we shall see hereaf- 
 ter, in treating of the effect of the statutes of jeofails, that according to 
 the construction now put upon these enactments, after verdict or judgment 
 by default, all formal defects are entirely aided (w). 
 
 With regard to a defect in substance, it seems that it cannot be impli- 
 edly cured by the mere effect of pleading over thereto (o) (2). Therefore, 
 if the defendant plead accord, and do not show satisfaction (p), and the 
 replication merely deny the agreement, this traverse cannot cure the fault 
 in the plea, namely, the omission to show a satisfaction to the plaintiff in 
 regard to the cause of action i^q). If, however, the adverse pleading ex- 
 pressly admit the fact which ought to have been stated in the defective 
 pleading, and which is substantially incorrect in omitting it, the error be- 
 comes, it seems, immaterial ; as in the instance before put of a declaration 
 L " ' ^ J in trespass for taking goods, omitting to *show any title to or possession 
 of the goods, and the plea admitting the defendant's possession (r). And 
 we have seen that if a declaration incorrectly set forth a deed, the vari- 
 
 (p) Com. Dig. Pleader, C. 85;Lutw. 632. (m) See cwiic, 671, e« scg. 
 
 (ft) Cro. Jac. 360, 370; 2 Saund. 324, (n) Post, 673, 682 to 685. 
 
 328; 3 Lev. S93,- Com. Dig. Pleader, 87, E. (o) 8 Rep. 120b; Cro. Eliz. 416; 7 Eep. 
 
 37. 25 a; Cro. Ja'c. 87 ; Com. Dig. Pleader, C. 85; 
 
 (i) Cro. Jao. 125, 668, 682; Com. Dig. E. 37; 2 Wils. 150. 
 Pleader, E. 37; Cro. Car. 209. (p) See ante, 478. 
 
 (fc) Cro. Eliz. 825; past, 678. (?) Com. Dig. Pleader, E. 87. 
 
 (I) Com. Dig. Pleader, E. 37. (r) AnU, 671. 
 
 (1) Slack V. Lyon, 9 Pick. 62; Dunning v. Owen, 14 Mass. 157. 
 
 (2) Bartlett v. M'Daniel, 8 Mis. 55. A pleading setting forth a good title defectively will be 
 cured by pleading over matter, or by demurring generally. Spear v. Bioknell, 6 Mass. 125; 
 Bobbins v. Luce, 4 ib. 476. See Jenkins v. Stanley, 10 Mass. 226. 
 
WHEN AND HOW AIDED. 673 
 
 ance is aided if the defendant set out the deed on oyer, and plead non est dei^ots 
 
 2dly. By 
 The second mode by which defects in pleading may be, in some cases, intend- 
 aided, is by intendment after verdict. The doctrine upon this subject is ™ja*iot^^'*' 
 founded on the common law, and is independent of any statutory enact- 
 ments {t). The general principle upon which it depends, appears to be 
 that where there is any defect, imperfection or omission, in any pleading, 
 whether in substance or form, which would have been a fatal objection 
 upon demurrer ; yet, if the issue joined be such as necessarily required, 
 on the ti'ial, proof of the facts so defectively or imperfectly stated or omit- 
 ted, and without which it is not to be presumed that either the judge would 
 direct the jury to give, or the jury would have given, the verdict, such de- 
 fect, imperfection, or omission, is cured by the verdict (m) (1). 
 
 The expression cured by verdict signifies that the Court will, after a 
 verdict, presume or intend that the particular thing which appears to be 
 defectively or imperfectly stated or omitted in the pleading, was duly 
 
 (s) Ante, 433, 434. Dougl. 679; and see per Ld. Ellenborough, 1 
 
 (t) See 1 Saund. 228, n. 1. M. & Sel. 237; Staph. 2d ed. 179, 180, Tidd, 
 
 (») Id. and see the authorities there cited; 9th edit. 919. 
 
 (1) See Vandersmith v. Washmein, 1 Harr. & Gill. 43. After verdict the court will support 
 the declaration by every legal intendment, if there is nothing material on record to prevent it. 
 Warren v. Litchfield, 7 Greenl. 63; Dohson v. Campbell, 1 Sumner, 319; Vaughan v. Dickens, 
 Harper, 26; Addington, ». Allen, 11 Wendell, 375; Manwell v. Manwell, 14 Vermont, 14 Car- 
 rell V. Peake, 1 Peters, 24; Hamilton v. Harvey, 4 Yeats, 129; Jersey Co. v. Halsey, 2 South. 
 750; Morey v. Homan, 10 Vermont, 564. Emmons v. Elderton, 26 Eng. Law & Eq. 1. But 
 nothing tvill be presumed to have been proved even after verdict, excepting vjhat is alleged, or 
 necessarily implied from what is alleged. Harding v. Cragie, 8 Vermont, 509 S. P. ; Vadakiu v. 
 Soper, 1 Aik. 289. 
 
 A declaration or other pleading, setting forth a good title or ground of action defectively will 
 be cured by a verdict. Read v. Chelmsford, 16 Pick. 128; Ward v. Bartholomew, 6 Pick. 409; 
 Morey o. Homan, 10 Vermont, 565; Moore v. Boswell, 5 Mass. 306; Riddle v. Locks and Canals, 
 7 Mass. 169; Wheeler ». Train, 3 Pick. 255;, Richardson ti. Woodstock, &c. 6 Vermont, 496; 
 Crocker v. Whitney, 10 Mass. 316, 318; Cashing v. Adams, 18 Pick. 100; Worster v. Canal 
 Bridge, 16 Pick. 541; Avery v. Tyringham, 3 Mass. 160; Haselton v. Wease, 8 Vermont, 483; 
 Fulgham v. Lightfoot, 1 Call, 250. White v. Concord Railroad, 10 Foster (N. H.) 188. New 
 Hampshire Mut. Fire Ins. Co. v. Walker, 10 Foster (N. H.) 324. As want of an averment 
 of special demand or notice, Chester Glass Co. v. Dewey, 16 Mass. 94; Colt v. Root, 
 17 Ma.ss. 94; Colt v. Root, 17 Mass. 229; Kingslcy i>. Bill, 9 Mass. 198. Crocker v. Gil- 
 bert, 9 Gushing, 131. Or seizin in a writ of entry. Ward v. Bartholomew, 6 Pick. 409. Or 
 seizin in a writ of entry. Ward u. Bartholomew, 6 Pick. 409. Or want of particularity or cer- 
 tainty. Richardson v. Eastman, 12 Mass. 505; IngersoU v. Jackson, 9 ib. 495; Llvermoreu. 
 Boswell, 4 ib, 437; Coffin v. Coffin, 2 ib. 258; Labifie v. Hunter, Harper, 184. 
 
 A verdict will cure an omission to add a joinder to a replication tendering an issue. Mor- 
 rison ti. Hart, Hardin, 150. So an omission of a similiter. Ripley v. Coolidge, Minor, 11; 
 Stone ». Van Carter, 2 Vermont, 115; Baboock v. Huntington, 2 Day, 394. So an omission of 
 the sum paid and the amount of damages laid in the dechiration. Kobinett v. Morris, Hardin, 
 98. So a defective statement of the consideration. Hendriok v. Seeley, 6 Conn. 176; Martin v. 
 Blodgett 1 Aiken, 375. So the failure to allege the performance of a condition precedent. 
 Bailey v' Clay 4 Rand, 346. So an omission to allege a special demand when such demand is 
 necessary Bliss ■». Arnold, 8 Vermont, 252. So the allegation of a promise before the date of 
 the writ. Bemisu. Faxon. 4 Mass. 263. So a defect in statement of venue m a transitory ac- 
 tion. Barlow w. Garrow, Minor,- 1. , , , ,. •„ . u -j j u j- j. 
 
 But where no title or ground of action is set out, the declaration will not be aided by verdict. 
 Williams V. Hingham Turnpike, 4 Pick. 341; Needham v. M'Auley, 18 Vermont 68; Carlisle v. 
 Weston, 1 MetcSlf, 26; Griffin v. Pratt, 3 Conn. 513; Phelps v. Sill, 1 Day, 315; Cliichester ... 
 Vass 1 Call, 83. Merrick v. Trustees &o. 8 Gill, 59. Bo where no consideratidn is alleged in an 
 action of assumpsit. Hitchcock d. Page, 1 Boot, 293. o m it 
 
 Where the ad damnum is left blank and verdict for plaintiff. Hoit v. Malony. 2 N. Hamp, 
 2 23 
 
 Where there is no plea or issue entered. Pratt v. Phillipsi 4 Yeates, 467; Channing ii. Cas- 
 kaden, Minor, 73. 
 
673a DEFECTS IN PLEAPING, 
 
 DEFBois proved At the trial (1). And such intendment must arise, not merely from 
 7i^^ the verdict, but from the united effect of the verdict and the issue upon 
 2diy. By which such verdict was given. On the one hand the- particular thing 
 intend- which is presumed to have been proved must always be such as can be 
 YerdLr^*'^ implied /rom the allegations on the record, by fair and reasonable intend- 
 ment {x). And, on the other hand, a verdict for the party in whose fa- 
 vor such intendment is made, is indispensably necessary, for it is in con- 
 sequence of such verdict, and in order to support it, that the Court is in- 
 duced to put a liberal construction upon the allegations on the record. 
 
 Thus, if to a declaration on a bill of exchange the plea improperly state 
 that there was no consideration, without stating the circumstances with 
 particularity, yet if the plaintiff reply, after verdict the defect in the plea 
 will be aided {y). So, the decision in Humphreys v. Pratt, in House of 
 Lords, turned on the ground that the verdict aided the defect («). 
 
 It is obvious that the doctrine now under consideration does not apply 
 to the case of a judgment by default. Such a judgment affords no ground 
 for raising any intendment in favor of the plaintiff ; it admits such facts 
 only as are actually alleged (a), and there is no necessity for the plaintiff 
 proving anything further. Where an intendment *is made in favor of a 
 party, it is always a presumption relative to matter of fact, viz. that such 
 a particular circumstance was duly proved at the trial ; but it is impossi- 
 ble to raise a presumption of this description, when no trial has taken 
 [ *674 ] place. In the case, therefore, of a judgment by default, the Court can- 
 not, upon a motion in arrest of judgment, or writ of error, intend any 
 thing in favor of the plaintiff; the only question they will have to consider 
 is, whether the alleged defect is or is not cured by the effect of any ex- 
 press legislative enactment. And as it appears from the more modem 
 cases that the different statutes of jeofails, (the operation of which was 
 extended to judgments by default by the statute for the amendment of the 
 law) (6), cure such defects only as are now considered matter of form, 
 it follows that any objection to thcdeclaration, made after judgment by 
 default, will be considered precisely in the same manner as if it had arisen 
 upon general demurrer ; and that if the defect be matter of form it will be 
 aided, but if matter of substance it will be fatal (c). ** 
 
 It is therefore pften very material to attend to the distinction between 
 the doctrine of intendment, and the effect of the statute of jeofails, in 
 aiding defects in pleading. The statutes of jeofails operate not by way of 
 intendment, but by positive enactments {d) ; and as they do not extend 
 to cure defects which are clearly matters of substance, there are necessa- 
 rily many defects of this nature which may be aided by a verdict,. but 
 which are not reached by those statutes, and are constantly still fatal 
 after a judgment by default (e). 
 
 Having thus explained the general nature of the doctrine of intendment, 
 and shown that it is confined to those cases only in which a verdict has 
 
 {x) See per Lord EUenborough, 1 M. & Sel. (6) 4 & 5 Ann. o. 16 ; post, 682, 683. 
 
 237; per Buller, J. 1 T. K. 145, 146; Tidd, (c) 2 Burr. 899; 10 East, 359, 863; 13 Id. 
 
 8th ed. 919, and oases there cited ; see post 407; Stephen on Pleading, 181, 2d edit.; 1 
 
 682j 688. Saund. 228, n. b; ante, 261. 
 
 iy) Easton v. Patoher, 4 Tyr. 472. (d) See 1 Saund. 5th ed. 28 a, note (fc). 
 
 («) 2 Dow. & Claris, Rep. 288. (c) Jd. 228, n. 1; 1 Stra. 78; 2 Burr. 
 
 (a) 1 Saund. 228, n. 1. 899. 
 
 (1) White V. Concord Railroad; 10 Foster, (Ni H.) 188. New Hampshire Mut. Fire In'- 
 Co. V. Walkers 10 Foster, (N. H.) 824. 
 
WHEN AND HOW A'IDBI). 674 
 
 been given in favor of the party for whom the intendment is required ito be "«■""»« 
 made, we shall now proceed to. notice some of the cases which have aidhd. 
 arisen upon the subject, in order to show under what particular circum- 2cHy. By 
 stances the Court will or will not make an amendment in support of the intendment 
 verdict, and what is the nature of the intendment they will make. Before jii^t, 
 we notice these cases, it may, however, be proper to remark that it is un- 
 necessary at the present day to have recourse to the doctrine of intend- 
 ment with respect to defects which are not matters of substance; for we 
 have already observed, and shall hereafter see more particularly, that de- 
 fects which are mere matters of form are aided after verdict by the effect 
 of the statute qf jeofails, without there being any necessity to have re- 
 course to the doctrine of intendment (/). 
 
 The authorities in the books are very numerous on the subject of de- 
 fects being aided after verdict, but those we shall select to illustrate the 
 doctrine will be chiefly from the modern reports. It is quite *unneces- [ *G75 ] 
 sary to detail a great number of the older cases on the subject, the great 
 majority of them having arisen upon matters which would now be consid- 
 ered mere form. And it would be a task of some difficulty to reconcile 
 all the decisions upon the subject, partly because the Courts have in later 
 times become much more liberal than they were formerly in discriminat- 
 ing between form and substance, and partly because the distinction we 
 have before adverted to, between the doctrine of intendment at common 
 law and the statute of jeofails, is very often but little attended to in many 
 of the older reports and treatises (g"). 
 
 In an-action oi assumpsit the declaration stated that the defendant had 
 sold to the plaintiff a quantity of furze then growing upon certain land, to 
 be taken away by the plaintiff before a certain day ; and that in consid- 
 eration thereof the defendant promised that he would permit the plaintiff 
 peaceably to enjoy and take away the furze without disturbance ; and then 
 alleged that the defendant did not permit him to enjoy it, but disturbed 
 him from taking a quantity away. After a verdict for the plaintiff, it was instance* 
 objected upon a writ of error thai no time was shown when the disturb- ^^'')' 
 ance took place, and that unless it were shown to be before the stipulated 
 day there could be no good ground of action ; but the Court held that 
 after the verdict it would be intended within the given time ; for otherwise 
 there could have been no proof of any cause to have damages (J). This 
 case very clearly illustrates the principles we have above laid down ; the 
 plaintiff had not expressly made the allegation which was contended to be 
 necessary, but had merely averred that the defendant had committed a 
 breach of his promise by the alleged disturbance : the particular part of the 
 averment in the declaration which related to the disturbance was ambigu- 
 ous, since it might mean either a disturbance before or a disturbance aftOT 
 the particular day by which the furze was to be taken away ; but from the 
 whole declaration it was evident that nothing but proof of a disturbance 
 before the particular day would amount to a breach of the contract set 
 out, so as to entitle the plaintiff to recover ; and as in point of fact he had 
 recovered, the Court were in reason and justice bound to presume that 
 
 {f) Supra; post, Gitl. (i) Cro. Jac. 497. It was also held in this 
 
 (g) See the observations of Mr. Serjeant case that it was not material'to allege the time 
 
 Williams, 1 Saund. 228 b. e. n. 1. of the disturbance, for it was collateral to the 
 
 <Ji) See a further instance in 2 Dow. & promise. 
 
 Clarke, 295, 296, and oases there quoted. 
 
 Vol. L 87 
 
675 . DEFECTS IN PLEADING,. 
 
 DEPBOTs such proof had been given. So also in an action of assumpsit brought by 
 TOEN ^^ off-going tenant against his landlord to recover compensation, accord- 
 2dly. By Ing to the custom of the country, for tilling, fallowing, and manuring arable 
 intend- land, where the plaintiff, after setting out the custom, averred that he had 
 "rdi t****'^ tilled, fallowed, and manured, and had sown with wheat and seeds certain 
 Instance?, lands forming part of his farm, but without expressly averring that such 
 [ *676 ] lands were arable, it was held, on motion in arrest *of judgment, after a ver- 
 dict for the plaintiff, that as the declaration showed that the plaintiff could 
 not be entitled to recover without proving that the lands were arable, it 
 must be intended that he had given such evidence at the trial ; and that 
 therefore the defect or ambiguity, if any, in the declaration was hel ped by the 
 verdict (&). The following cases will also further elucidate this doctrine :~ 
 In an action of assumpsit against the executors of the maker of a pro- 
 missory note, the plaintiff after setting out the note, alleged that the testa- 
 tor at the time of his death was indebted to the payee for the amount of the 
 principal sum secured by the note and interest thereon ; and then aver- 
 red that after the payee's death, it was found upon inquest, by the oaths of 
 honest and lawful men, (but without showing how many), that the payee 
 was/eZo de. se, whereby the note and the money due thereon became for- 
 feited to thd crown, and the plaintiff then set out a grant to him under the 
 king's sign manual. After a verdict for the plaintiff, it was objected in ar- 
 rest of judgment, 1st, that a promissory note was only assignable by indorse- 
 ment, and that though the crown could assign a debt, yet it was not alleged 
 that this was the case of a debt, nor did the plaintiff sue as the assignee of 
 a debt, but only of a promissory note : and, 2dly, that it was not averred in 
 the declaration that the inquisition had been taken by twelve men, which it 
 . vras contended was necessary. But the Court held that the allegation 
 that the maker, at the time of his death, was indebted to the payee in 
 the pi'incipal sum secured by the note and interest thereon, was a sufficient 
 averment that the note was a security for a debt ; and also, that supposing it 
 to be necessary that the coroner's inquest should be taken by twelve men 
 to vest chattels in the crown, it must be intended after verdict that the in- 
 quisition in question had been so found (Z). And where in assumpsit the 
 plaintiff stated in his declaration that he had, at the request of certain per- 
 sons therein mentioned, sold and delivered to them goods of a certain value, 
 whereof the defendant had notice, and that in consideration, thereof, and 
 also in consideration that the plaintiff, at the defendant's request, would for- 
 bear and give day of payment of the said sum of money (but without saying 
 to whom), the defendant promised to pay the same at a particular time, and 
 then averred that the plaintiff did forbear and give day of payment of 
 the said money ; after a verdict for the plaintiff, the Court held that by 
 necessary intendment the vendees of the goods must have been the persons 
 to whom the plaintiff forbore ; and that, though not specifically alleged, it 
 appeared to be so with a sufficient degree of certainty, but that at all events 
 the defect, if any, was cured by the verdict (m). We have formerly seen, 
 [ *677 J in treating of the mode in *which contracts should be stated, and the de- 
 gree of certainty required in pleading (m), that in general uncertainty is on- 
 ly a matter of form, and that it will consequently be aided either on general 
 demurrer, or afterverdict or judgment by default, by the statutes of jeofails. 
 In a case in which the declaration in assumpsit stated the plaintiff had 
 
 (fc) 1 B. & B. 224; 3 Moore, R. 536, S. C. (m) 1 New Bep. 172. 
 
 W4B, &C. 138. in) Ante, m.m. 
 
WHEN AND HOW AIDED. 
 
 en 
 
 sold to the defendant a certain horse, at and for a certain quantity of cer- os^o™ 
 tain oil, to be delivered within a certain time, which had elapsed before j^^_ 
 the commencement of the suit, it was contended that the judgment ought 2dly. By 
 to be arrested, since the plain tiff had professed to declare on a special con- intead- 
 tract, but had not specified in any manner what the terms of the contract^™™;^*^ 
 were, but it was answered on the other side, that though the objection instancea. 
 might hold on demurrer, yet after a verdict it must be intended that the ju- 
 ry had ascertained those circumstances ; and after some hesitation the Court 
 finally decided that after verdict the declaration was sufficient (o). In an- 
 other case of action in assumpsit, the declaration stated that the plaintiff 
 had retained the defendant (who was not an attorney) to lay out £700 in 
 the purchase of an annuity, and that defendant promised to lay it out se- 
 curely, "that the T^laxatiS delivered the money to the defendant accordingly, 
 but that the defendant laid it out on a bad and insufficient security. Alter 
 verdict it was objected on a writ of error, that no consideration appeared 
 in the declaration ; that it was not averred that the promise was in consid- 
 eration of the retainer, nor that the retainer was for reward ; but the Court 
 held' that it was absolutely necessary under the declaration that the plaintiff 
 should have proved at the trial that he had actually delivered the money to 
 the defendant, and that the latter had engaged to lay it out ; that the deliv- 
 ery of the money for this purpose was a sufficient consideration to support 
 the promise, and that although it was not expressly alleged in the declara- 
 tion that the delivery of the money was in fact the consideration for the 
 promise, the Court would intend after verdict-that such was the considera- 
 tion (jo). 
 
 In all these cases the form of action was assumpsit. We shall proceed 
 to give a few more instances of intendments made after verdict in different 
 forms of action ; but whatever may be the form of action, or the particular 
 pleading which is alleged to be defective, the principles which govern 
 the decision of the Court must of course be always the same. In an 
 action of debt, in which the plaintiff sought to recover penalties for mo- 
 ney lost in gaming, he alleged in his declaration that he sued as well 
 for himself as for the poor of the parish of St. Paul, Covent Garden 
 but did not afterwards show that the money had been lost in that par- 
 ish, but merely " at Westminster aforesaid." After a verdict finding that 
 the defendant did owe part of the money to the plaintiff and the poor of the 
 said parish, it was held, on a writ of "error that it must have been [ *678 ] 
 proved on the trial that the money was lost in the particular parish, or 
 the jury could not have found their verdict, and that consequently the de- 
 fect was cured ; for wheresoever it may be presumed that anything must 
 of necessity have been given in evidence, the want of mentioning it on 
 record will not vitiate it after a verdict (g). So in an action of debt upon 
 a bond given by a bailiff to a sheriff for the due discharge of his of- 
 fice in returning warrants, &c. the defendant in his plea craved oyer of 
 the condition, which recited that the bailiff had been appointed for a par- 
 ticular hundred only, and pleaded performance ; the plaintiff assigned as 
 a breach, that a particular warrant had been directed to him which had 
 not been duly returned. It was objected in arrest of judgment after a ver- 
 dict for the plaintiff, that he had not shown that the warrant was to be 
 executed in the particular hundred, and that consequently it did not ap- 
 
 (o) 2 B & P 265. (?) 4 Burr. 2020, 2020; and see Sir T, 
 
 (p) 2 Bing. 464; 1 M'Clel. & Younge, 60, Raym. 487; Hob. 78; Carth. 304. 
 8.0. 
 
678 DEFECTS IN PLEADING. 
 
 M*EGra pear that it was a warrant which the bailiff was bound to return, but the 
 
 *HEN Court held that this abjection could not prevail after verdict ; for, inde- 
 
 2diy. By pendently of the necessity of intending that the warrant was proved to 
 
 intend- be such a one as the bailiff must return, the defendant had in fact admitted 
 
 mant after ^j^^^ j^ was,by traversing the breach assigned, and that it would in fact be 
 
 Instanc'esi raising an intendment against the verdict, and against the defendant's 
 
 own admission to hold that the objection should prevail (r). Again, in an 
 
 action upon the case for refusing to comply with subpoena duces tecum, 
 
 by producing the required document, in consequence whereof the plaintiff 
 
 had been nonsuited, where the plaintiff did not in express terms allege 
 
 that the defendant had the particular instrument in his possession, but 
 
 only that he could and might have produced it, and that he had no lawful 
 
 and reasonable excuse or impediment to the contrary, it was held after 
 
 verdict, upon motion in arrest of judgment, that the plain import of these 
 
 words was, that the defendant had the instrument in his possession, and 
 
 consequently that it was to be intended -that this had been proved at the 
 
 trial ; and not that the judge had suffered the allegations to be proved in a 
 
 strained and unnatural sense, as by showing that the defendant might have 
 
 acquired the means of producing the instrument by applying to others 
 
 who might have it in their custody (s). 
 
 Many other cases might be cited in support of the proposition, that in 
 all cases where the general allegations in the declaration or other pleading, 
 are such as to require proof of any particular fact which is not expressly 
 stated, in order to entitle the plaintiff to a verdict, it will be intended, after 
 a verdict for him, that such fact was duly proved, and the defect in the par- 
 [ '679 ] ticular pleading will be aided *(0 . Thus, a plea of prescription for common 
 in a que estate is good after verdict, though it be not alleged expressly that 
 the owners of the estate have used it immemorially ; for unless a prescrip- 
 tive right had been proved, the party pleading it could not have recovered 
 a verdict (m). So, where the grant of a reversion, and a rent-charge, advow- 
 son, or other incorporeal hereditament, which lies in grant, and can only 
 be conveyed by deed, is not alleged in pleading to have been bi/ deed, yet 
 if the grant be put in issue and found by a jury, the imperfection in plead- 
 ing is cured by the verdict at common law (a;). And we have seen that an 
 imperfect averment of the performance by the plaintiff of a condition pre- 
 cedent, or matter to be performed by him (p}, or that he gave a proper na- 
 Uce to the defendant (z), or requested the defendant to perform his prom- 
 ise (a), will sometimes be cured by verdict ; and that after verdict, an aver- 
 ment in a declaration for a libel, that the defendant "-printed, and caused 
 to be printed the libel in a newspaper," not expressly showing a publica- 
 tion, may be sufficient (6). 
 
 It will be observed that in all cases we have given upon this subject, 
 although the particular matter was not stated in express terms, the declara- 
 tion or other pleading in each case, contained terms sufficiently general to 
 
 (r) 8 Buw. 1125; see ante, 671, 672. See 2d ed. 179, 180. 
 
 as to this objection upon demurrer, Alleyn, (y) Ante, 327; see ante, 322: and post, 
 
 10. 681. 
 
 (s) 9 East, 473. (z) Ante, m. But the omission of an 
 
 Tv>,' c T, ■ • '' ' ^' ^™" "^'*°' **5 ^^ averment of notice of non-payment, in an ao- 
 
 Wils. 5; Rep. temp. Hard. 116 ; 1 Mod. 292; tion against the drawer of a bill, is fatal after 
 
 1 Ventr. 109; 1 Sid. 865; 2 Lord. Raym. verdict, id ; iiosj, 681. , • 
 
 1060; 6 Wils. 275; 7 B. C. 555. (a) knte,Sn, 
 
 ^!'Wu\}^'^^ c jn^o , „ W'Ante.iOe. Statement that the damages 
 
 1,1) Uutt, 64; 1 Saund228, note 1; Steph. accrued afteraction when cured, ante, 89?. 
 
WHEN .aAd how aided. 679 
 
 A^ 
 
 comprehend it in fair and reasonable 'intendment (c). The allegations on mfegts 
 the record, taken by themselves, m^ht have been ambiguous, and have ^^g^, 
 been capable of bearing two different constructions, but when they were 2dly. By 
 coupled with the verdict, it became clear that they might and ought to be intend- 
 interpreted in that sense alone, which was absolutely necessary in order to "e^r^jg^t.'*' 
 account for and to support the verdict. Some cases, however, have aris- Instances, 
 en which it is not very easy to bring within the operation of the rule as 
 thus restricted, but in which the Courts, in their anxiety to support ver- 
 dicts, have held particular defects to be aided. Thus, in an action on the 
 case for a malicious prosecution, it is necessary to allege in the declaration 
 that the prosecution is at an end (rf) ; or that the commission or fiat has 
 been superseded (a) ; but it has been held that the want of this averment 
 is cured by verdict (/). It is said, that it will be then presumed that proof 
 of the fact of the determination of the prosecution has been *given at the [ *680 ] 
 trial : but although such a fact may be a reasonable inference from the ver- 
 dict alone, yet it appears difficult to say how it is comprehended, even by 
 fair and reasonable intendment, in the allegations in the declaration, for 
 there is nothing on the record which in any manner appears to imply that 
 the prosecution has been determined. So the omission to allege a notice or 
 demand of rent in an action against the sheriff for not paying a year's rent 
 pursuant to 8 Anne, c. 14, is aided by verdict (^). Again, in another case 
 of an action to recover an amerciament in an inferior Court, where the decla- 
 ration omitted a necessary allegation, viz. that the defendant was a resident, 
 it appears to have been considered that the fact of residence must be inten^ 
 ded to have been proved at the trial, as otherwise the jury could not have 
 found that there had been any debt due (A). But the doctrine which this 
 case would appear to establish, that matters extrinsic of the record are to be 
 intended after a verdict, by inference drawn ftom the verdict ahne, has been 
 denied by Mr. Justice Bullei-, in a subsequent case(i); and appears to be 
 in some degree inconsistent with many other decisions. However one of 
 the most recent cases established that, although the declaration do not con- 
 tain the requisite averment, still the defendant must, if the plaintiff do not 
 prove the essential fact the same as if it had been averred, insist on the 
 plaintiff being nonsuited, or have a verdict against him, for otherwise the 
 verdict for the plaintiff will aid as well the defects in the declaration as in 
 the evidence {k). 
 
 It is at all events clear that the Courts will never, in order to support a 
 verdict, make an intendment which is inconsistent with the allegations on 
 the record. Thus, in an action of assumpsit, the declaration stated that 
 a certain person had become bankrupt, and that at his last examination 
 under the commission, in consideration that Ms assignees and the commis- 
 sioners, at the request of the defendant, would forbear to examine the 
 bankrupt touching certain monies which the bankrupt had received, and 
 for which he had not accounted, the defendant undertook to pay the as^ 
 signees all sums received by the bankrupt, and not accounted for by him. 
 
 (c) See per Lord BUenborough, 1 M. & Sel- was held, that a count for maliciously indict- 
 236; per Buller, J.; 1 T. R. 146. • ing the plaintiff for perjury, without setting 
 
 (d) 10 Mod 209; Dougl. 215; 2 T. R out the indictment, is good after verdict;' but 
 225; ante, 133 ; 1 Mood. & B. 398. this^ it should seem, is by the statutes of jeo- 
 
 (e) Whitworth D. Hall, 2 B. & Adpl. 695 ; fails. „,„_„. ,„„ .. 
 when not proved, 1 Mood. & Rob. 398. (g) 1 Stra, 212; 7 Price, 666. 
 
 {/) 1 kund. 228 a; 1 Sid. 15; 2 Selw. (A) Rep. temp. Hardw. 116, 
 N.P. 6th edit.' 1055. n. 7s 1 B. & B._224; , (j) 1 T R. Ul, 145 146. 
 9 East, 473; 5 B. & Aid. 684; in which it (&) Whitworth ». S«ll, B. & Adol. 696. 
 
680 DEFECTS IN Pl|!ADING, 
 
 DEFECTS After a verdict for the plaiatiff it was held on a writ of error, that this 
 ^^^^ contract was void, as being against the policy of the bankrupt laws,. and 
 2diy. By Calculated to deprive the creditors of the advantages they might derive 
 intend- from an examination of the bankrupt. And although it was contended 
 ment after ^j^g^^ g^fj-gj, ygrdict the Court would intend that the sum which the verdict 
 Instances, found to be due to the plaintiff had been ascertained to be the full amount 
 [ *681 1 of all monies received and not accounted for the bankrupt, *and so no in- 
 jury could arise to the creditors ; it was held that no such intendment 
 could be made, since it was expressly averred in the declaration that the 
 amount had not been ascertained at the time the contract was made, and 
 it appeared, that by entering into the contract, the assignees had deprived 
 themselves of the opportunity of ascertaining the amount. And the Court 
 appears to have considered that it would be equally improper ,to intend 
 after verdict, that the contract had been entered into with the consent of 
 the creditors, since there was nothing in the allegations on the record to 
 warrant such an intendment (/). So, if a declaration expressly show that 
 a condition precedent was not performed by the plaintiff, and state mat- 
 ter which is no excuse for the non-performance, the declaration will be 
 bad after verdict (m). And in another case, it was laid down by the 
 Court that nothing could be intended after verdict but what was express- 
 ly stated in the record, or necessarily implied from those facts which 
 were stated (n). 
 
 The main rule on the subject of intendment is, that a verdict will aid a 
 defective statement of title, but will never assist" a statement of a defective 
 title, or cause of action (o). Instances in illustration of the former 
 part of this rule have already been given ; and we have also seen that 
 there can be no presumption to support the verdict, if the presumption be 
 negatived by, and be inconsistent and at variance with, a material state- 
 ment in the record (jp). We may here add some cases in explanation of 
 the rule that if the plaintiff totally omit to state his title or cause of ac- 
 tion, it need not be proved at the trial, and therefore there is no room for 
 presumption to maintain the verdict («/). If, therefore, in an acti6n upon 
 a bill of exchange, the plaintiff omit to aver presentment to, and a refusal 
 by the drawee (r) ; or that the defendant had notice of non-payment (.?) 
 when such averments are necessary, the declaration will be bad even after 
 verdict. So, in case for a libel or slander, if the matter as charged be 
 not in itself a libel, and the declaration do not contain any introductory 
 matter, or- other averment rendering it so, and connecting the plaintiff 
 with the libellous imputation, and giving it an actionable meaning, as ap- 
 plied to the plaintiff, the declaration will not be aided by verdict, although 
 there be an innuendo that thfe defendant meant to charge that the plain- 
 tiff was guilty of a specified offence (i!). And a verdict will not cure a 
 statement in a declaration that the defendant published a libel, " in sub- 
 [ •682 ] stance as follows ;" or spoke slanderous words, " to the tenor *following ;" 
 although the matter be set out in hcec verba (u). So, where the plain- 
 tiff brought an action of trespass on the case, as being entitled to the re- 
 
 (Z) 3 T. R. 17, 25, 26. (g) Tidd, 9th ed. 919. 
 
 (m) 6 T. R. 710; ante, 822 327. (r) Dougl. 679; 7 B. & C. 468; 1 M. & R. 
 
 (n) 1 T. R. 141; see Tidd, 9th ed. 919. 394, 403, 8. C. 
 
 (0) Salk. 365; Lord Eaym. 1225, S. C; 1 (s) Ante, 329. 
 
 Saund. 228, n. 1; 4 T. R. 470; 4 B. &. C. (<) Ante, 407: 
 
 555. (u) Ante, iOi. 
 
 (p) -ante, 878 to 887. 
 
Jeofails. 
 
 WHEN AND HOW AIDED. 682 
 
 version of a certain yard and wall, to which the declaration stated a cer- dbfeots 
 tain injury to have been committed, but omitted to allege that the rever- ™^_ 
 sion was, in fact, prejudicial, or to show any grievance which, in its na- 2dly. By 
 tijre would necessarily prejudice the reversion ; the Court arrested the 'itend- 
 judgment, after a verdict had been given in favor of the plaintiff, and held "grdJct.'*' 
 the fault to be one which the verdict could not cure {x). And where a Instanoes. 
 declaration in debt, for not setting out tithes, on the statute 2 & 3 Bdw. 
 6, c. 13, s. 1, omitted to state that the tithes had been yielded and paid, 
 and of right ought to have been paid, within forty years next before the 
 passing of the act ; t\ve Court held that it was defective, even after ver- 
 dict, and the judgment was arrested (^y). 
 
 Where several causes of action have been stated in one count, one of When a 
 which is sustainable, but the others not, if there be a verdict for the plain- p^rt dS e- 
 tiff with general damages upon the whole count, such verdict will be sus- tive is aid- 
 tained by the intendment and presumption that the judge duly directed edby 
 the jury not to find damages upon the defective allegation (s). But if a ^®'''^"'*- 
 declaration contain several counts, any of which is wholly defective, and 
 general damages upon the whole declaration be given, the judgment would 
 be arrested or reversed on error (a). 
 
 3dly. Mistakes and omissions in the declaration, and other subsequent ?'*'^' ^^ . 
 pleading's, are often times cured by the statutes of jeofails, which de- by the 
 clare (6), that "judgment, after verdict (c), shall not be stayed or re- statute of 
 versed by reason of any mispleading, lack of color, insufficient pleading or '"'""'" 
 jeofail, or other default or negligence of the parties, their counsellors or at- 
 tortieys (c?) ; want of form in any count, declaration, plaint, bill, suit, or de- 
 mand (e) ; lack of averment of any life, so as the person be proved to be 
 alive (/): want of any profert or the omission of vi et armis, or contra pa- 
 cem, mistaking the christian name or surname of either party (^■), sums, 
 day, month, or year, in any bill, declaration, or pleading, being right in 
 any writ, plaint, roll, or record preceding, or in the same roll or record 
 wherein the same is *committed, to which the plaintif," (or more proper- [ *683 ] 
 ly the defendant^ " might have demurred, and shown the same for cause ; 
 want of the averment of hoc paratus est verificare or hocparatus est ver- 
 ificare per recordum, or for not alleging prout patet per recordum, or the 
 want of a right venue, so as the cause were tried by a jury of the prop- 
 er county where the action is laid (A) ; or any other matters of like no- 
 
 (x) 1 M. & Sel. 284. which cures the want of a right \enue, so 
 
 (j) 4 B. & Aid. 655; and see 1 Taunt, as the cause be tried by a jury of the proper 
 
 128 ; 4 B. & C. 345; 6 D. & E. 438, S. C; 4 county where the action is laid, seems to ex- 
 
 B. & C. 555; 7 D. & R. 56, S. C. ; 6 B. & C. tend, not only to cases where there is a wrong 
 
 164,164; 10 Moore, 446. venue in a right county, but also to those 
 
 (a) 2 Tyr. 648. where the cause has been improperly tried in 
 (o) Id.; Ante, 411, 412, where see tht a wrong county, 7 T. R. 583; and seel Lord 
 
 course of proceeding. Raym. 330; Carth. 448, S. C.; Willies, 431; 
 
 (b) See Tidd, 9th edit. 923; Chitty's Coll. 2 East, 580; 1 Saund. 248, (8) ; 2 Id. 5, (3), 
 of Stat. " Amendments and Jeofails." 5th edit. But where in ejectment for lands in 
 
 (c) Distinction between the common law Cardiganshire the venire was awarded out of 
 effect of the verdict, and its operation under Shropshire, upon the suggestion of its being 
 the statutes. 1 Saund. 227, n, 1.; ante, 674. the next English county, the Court, after ver- 
 An informal issue, is cured by this statute, diet for the plaintiff, arrested the judgment on 
 but a verdict will not cure an immaterial is- the ground of a mis-trial, Herfordshire, being 
 sue, ffl7ife,654. Immaterial traverse, ante,S22. the next adjoining English county to South 
 
 (d) 32 Hen. 8, c. 30. Wales; althouge it appeared that Shropshire 
 (c) 18 Eliz. c. 14. was in fact nearer to the lands in question, and 
 (/ ) 21 Jac. 1, 0. 13. the cause might have been more conveniently 
 (^) 8 Wila. 40. tried there than in Herefordshrie; 2 M. & 
 (i) The Statute 16 & 17 Car. 2, c. 8, Sel. 270. 
 
6Sg DEFECTS IN PLEADING, WHEN AND HOW AIDH). 
 
 DEFECTS ture, not being against the right of the matter of the suit, nor whereby 
 ^^ the issue or trial is altered" (i). 
 8diy. By The Statutes of jeofails are extended by the statute for the amendment 
 the statute of the law (A) to judgments entered upon confession, nihil dicit, or nqn 
 eofails. ^^^^ informalus (/), in any Court of record ; and it is thereby enacted, 
 that " no such judgment shall be reversed ; nor any judgment upon any 
 writ of inquiry of damages executed thereon be stayed or reversed, for or 
 by reason of any imperfection, omission, defect, matter, or thing whatso- 
 ever, which would have been aided and cured -by any of the said statutes 
 oi jeofails, in case a verdict of twelve men had been given in the said ac- 
 tion or suit, so as there be an original writ or bill, and warrants of attor- 
 ney duly filed according to law" (m). A motion in arrest of judgment, 
 after judgment by default is to be considered exactly the same as if the 
 question had arisen on a general demurrer (n) : and on demurrer, we may 
 remember, that by the statute 4 & 5 Ann. c. 16, the Court are required to 
 give judgment according to the very right of the cause, without regarding 
 any such imperfections, omissions, and defects, as are particularly men- 
 tioned in the act, or any other matter of like nature, except the same 
 shall be specially set down and shown for cause of demurrer, notwith- 
 standing the same might have heretofore been taken to be matter of sub- 
 stance, and nob aided by the statute of Queen Elizabeth, so as sufficient 
 matter appear in the pleadings upon which the Court may give judgment, 
 [ 684 J "according to the very right of the cause (o). As there cannot however 
 be the same intendment in support of a judgment by default as after a 
 verdict, it has been holden that the statutes of jeofails do not protect 
 judgments by default against objections that are cured by a verdict at com- 
 mon law, but such only as are remedied after a verdict by the statutes (p). 
 It has been determined that the statute 32 Hen. 8, c. 30, extends to 
 penal actions (^q). And by the statute 4 Geo. 2, c. 26, which provides 
 that all legal proceedings shall be in the English language, " all statutes 
 for the reformation and amending of the delays arising from any jeofails, 
 shall and may extend to all and every form and forms, and to all pi'oceed- " 
 ings in Courts of justice (except in criminal cases), when the forms and 
 proceedings are in English ; and all errors and mistakes are amendable 
 and remedied thereby, in like manner as if the proceedings had been in 
 Latin." And though by the 16 & 17 Car. 2, c. 8, the several omissions, 
 variances, and defects therein mentioned are required to be amended by 
 the judges of the Court where the judgment is given, or the record removed 
 by writ of error, yet an actual amendment is never made on this statute ; 
 but the Court will allow the benefit of the act to be attained by over- 
 looking the exception (r). 
 
 (i) 16 & 17 Car. 2, c. 8. These latter ered as proceedings for the recovery of the 
 
 words should be construed literally ; see ob- king's debt within the meaning of the statute, 
 
 serrations of Lord EUeuborough, 4 & 5 Anne, 4 & 5 Ann. o. 16, s. 24; 5 Price, 621. 
 
 c. 26, s. s. 2, in 10 East, 363, 364. (n) 2 Burr. 899. 
 
 (fc) 4 & 6 Ann. c. 16, s. 2. (o) Ante, 662 to 664 ; and see 10 East, 
 
 (I) But this statute does not seem to apply 359. 
 
 to judgments on nul tiel record ; Tidd, 9th (p) 2 Str. 933; and see 1 Saund. 228, (1); 
 
 edit. 927, note (d). 13 East, 407; Tidd, 9th edit. 927; ante, 674. 
 
 (m) By a subsequent act, 9 Ann. o. 20, s. (q) 3 Lev. 375; 1 Str. 136; 2 Id. 1227; 
 
 7, this and all the statutes of jeofails are ex- Doug. 115; ante, 664. 
 
 tended to writs o( mandamus, and informa- (r) 2 Str. 1011; Cas. Temp. Hardw. 814, 
 
 tions in nature of a quo warranto. But 315; Tidd, 9th edit. 928; Chitty^B Col. Stat, 
 
 pleading on writs of extent are not consid- vol. i. 14, d. (a) 
 
APPENDIX. 
 
APPENDIX. 
 
 TUE PEIIfCIPAL STATUTES AND RULES 
 
 AFFECTING 
 
 PLEADING IN GENERAL. 
 
 [See the Statutes of amendments and Jeofails collected, Chitty Col. Stat. Tit. 
 Amendments and Jeofails.] 
 
 4 Anne, Cap. XVI. 
 
 An Act for the better Amendment of the law, and the better Advancement of 
 
 For the Amendment of the law in several particulars, and for the easier, speedier, ,, „ . 
 and better advancement of juslace, be it enacted by the Queen's most excellent Maj- ^^26 sect 
 esty, by and with the advice and consent of the lords spiritual and temporal, and 7', this 
 commons, in this present parliament assembled, and by the authority of the same, statute is 
 and from and after the first day of Trinity term which shall be in the year of our extended 
 Lord one thousand seven hundred and six, where any demurrer shall be joined, and *° ^?'' ■ 
 entered in any action or suit in any court of record within this realm, the judges n,us a„^ 
 shall proceed and give judgment according as the very right of the cause and matter informs^ 
 in law shall appear unto them, without regarding any imperfection, omission, or de- tions in 
 feet in any writ, return, plaint, declaration, or other pleading, process, or course of ""■t"™ "' 
 proceeding whatsoever, except those only which the party demurring shall specially ^anto. 
 and particularly set down and express, together with his demurrer, as causes of the Judges 
 same, notwithstanding that such imperfection, omission, or defect might have there-i shall give 
 fore been taken to be matter of substance, and not aided by the statute made in the judgment 
 twenty-seventh year of Queen Elizabeth, intituled, " An Act for the Furtherance of °°j. ^^^' 
 Justice in case of Demurrer and Pleadings," so as sufficient matter appear ii;i the without* 
 said pleadings, upon which the Court njay give judgment according to the very regarding 
 right of the cause ; and therefore from and after the said first day of Trinity Term, ?°y defect 
 BO advantage or exception shall be taken of or for an immaterial traverse : or of or ^ ?^ • 
 for the default of entering pledges upon any bill or declaration ; or of or for the de- jj^jj g^ 
 fault of alleging the bringing' into Court any bond, bill, indenture, or other deed other 
 whatsoever mentioned in the declaration or other pleading ; or of or for the default pleading, 
 of alleging the bringing into Court letters testamentary, or letters of administration ; ^^1 
 or of or for the omission of vi et armis et contra pacem, or either of them ; or of or special de- 
 fer the the want of averment of hoc paratus est verificare, or, hoc paratus est veri- murrer 
 jicare per recordum; or of or for not alleging jsroMi patetper recordum; but the shoyiing 
 Court shall give judgment according to the very right of the cause as aforesaid, ^^*^^^'''' 
 without regarding any such imperfections, omissions, and defects, or any other matter ^ ^' 
 of like nature, except the same shall be specially and particularly set down and 
 shown for cause of demurrer. r^Trtoi 
 
 *And be it further enacted by the authority aforesaid, that from and after the said L ' ^■"J 
 first day of Trinity term, all the statutes of jeofails shall be extended to judgments 4 Anne, c. 
 which shall at any time afterwards oe entered upon confession, nihil dicit or non ^^- 
 
702 
 
 APPENDIX, 
 
 Statutes of 
 jeofails ex- 
 tended to 
 judgments 
 on nihil 
 dicit, &C. 
 
 When war- 
 rants of 
 attorney 
 shall bo 
 filed. 
 
 Defendant, 
 &a. may 
 plead sev- 
 eral mat- 
 ters. 
 
 Not extend 
 to qui tam 
 actions. 
 No dilatory 
 plea unless 
 on affidavit 
 
 Action of 
 ■debt 
 brought 
 on single 
 bill or 
 judgment, 
 after mon- 
 ey paid, 
 such pay- 
 ment may 
 be pleaded 
 in bar. 
 
 The like on 
 bonds. 
 
 Principal 
 and inter- 
 est on 
 bonds 
 paid in 
 Court, &o. 
 
 sum informatus, in any Court of record ; and no such judgment shall be reversed, 
 nor any judgment upon any writ of inquiry of damages executed thereon be staid or 
 reversed, for or by reason of any imperfection, omission, defect, matter, or thing 
 whatsoever, which would have been aided and cured by any of the said statutes of 
 jeofeils in case a verdict of twelve men had been given in the said action or suit, so 
 as there be an original writ or bill, and warrants of attorney duly filed according to 
 the law as is now used. 
 
 III. Provided always, and be it enacted by the authority aforesaid, that the at- 
 torney for the plaintiff, or demandant in any action or suit, shall file his warrant of 
 attorney with the proper officer of the Court, where the cause is depending the same 
 term he deolaresij and_-the attorney for -the defendant oi tenatitsh^ll file his warrant 
 of attorney as aforesaid; the same term he appears, under the penalties inflicted up- 
 on attornies by any former law for default of filing their warrants of attorney. 
 
 IV. And be it further enacted by the authority aforesaid, that from and after the 
 said first day of Trinity term it shall and may be lawful for any defendant or tenant 
 in any action or suit, or for any plaintiff in replevin, in any Court of record, with the 
 leave of the same Court, to plead as many several matters thereto, as he shall think 
 necessary for his defense. 
 
 XI. And be it further enacted by the authority aforesaid, that from and after the 
 said first day of Trinity term, no dilatory plea shall be received in any Court of rec- 
 ord unless the party offering such plea, do, by affidavit, prove the truth thereof, or 
 show some probable matter to the Court to induce them to believe that the fact of 
 such dilatory plea is true. 
 
 XII. And be it further enacted by the authority aforesaid, that from and after the 
 said first day of Trinity term, where any action of debt shall be brought upon any 
 single bill, or where action of debt or scire facias., shall be brought upon any judg- 
 ment, if the defendant hath paid the money due upon such bill or judgment, suph 
 payment shall and may be pleaded in bar of such action or suit, and where an action 
 of debt is brought upon any bond which hath a condition or defeazanee to make void 
 the .same upon payment of a lesser sum at a day or place certain, if the obligor, his 
 heirs, executors, or administrators, have, before the action brought, paid to the obli- 
 gee, his executors, or administrators, the principal and interest due by the defeas- 
 ance or condition of such bond, though such payment was not made strictly according 
 to the condition or defeazanee ; yet it shall and may nevertheless be pleaded in bar 
 of such action, and shall be as effectual a bar thereof, as if the money had been 
 paid at the day and place according to the condition or defeasance, and had been so 
 pleaded. 
 
 XIII. And be it further enacted by the authority aforesaid, that if at any time, 
 pending an action upon any such bond with a penalty, the defendant shall bring in- 
 to the Court where the action shall be depending, all the principal money, and interest 
 due on such bond, and also all such costs as have been expended in any suit or suits 
 in law or equity upon such bond, the said money so brought in shall, be deemed and 
 be taken to be in full satisfaction and discharge of the said,boi}d, and the court shall 
 and may give judgment to discharge every such defendant of and from the same ac- 
 cordingly. 
 
 9 Geo. IV. Cap. 14. 
 
 An Act for rendering a written memorandum necessary to the Validity of certain 
 — Promises and Engagements. [9th May 1828.] 
 
 S> O. 4. c. 
 14. 
 
 Whereas by an Act passed in England in the twenty-first year of the reign of 
 
 King James the First, it was, among other things, enacted, that all actions of account 
 
 L ' ''" ] and upon the case, other than such accounts as concern the trade *of merchandize be? 
 
 tweeu merchant and merchant, their factors or servants, all actions of debt groundecl 
 
 upon any lendipg or contract without specialty, s(hd aU actions of debt for arrearagea 
 
OP STATUTE. *703 
 
 of rent, slioiild be commenced within three years after the end of the then present 9 G. 4 o. 
 session of parliament, or within six years .after the cause of such actions or suit, and 
 not after : And whereas a similar enactment is contained in an Act passed in Ire- Irish Act, 
 land in the tenth year of the reign of King Charles the First : And whereas various ^^ ^'^- ^ 
 questions have arisen in actions founded on simple contract, as to the proof and g ' ' ' 
 eflfect of acknowledgments and promises offered in evidence for the purpose of taking 
 cases out of the operation of the said enactments ; and it is expedient to prevent 
 such questions, and to make provision for giving effect to the said enactments and to 
 the intention thereof: he it therefore enacted by the King's most excellent Majesty 
 by and with the advice and consent of the lords spiritual and temporal, and commons, 
 in this present parliament assembled, and by the authority of the same, that in ae- la actions 
 tions of debt or upon the case grounded upon any simple contract, no acknowledg- "' ^^^^, "^ 
 ment or promise by words only shall be deemed sufficient evidence of a new or con- "P°° 
 tinning contract, whereby to take any case out of the operation of the said enactments, knowledg- ' 
 or either of them, or to deprive any party of the benefit thereof, unless such acknowl- ment shall 
 edgment or promise shall be made or contained by or in some writing to be signed by be deemed 
 the party chargeable thereby ; and that where there shall be two or more joint con-t suCBoient 
 tractors, or executors, or administrators of any contractor, no such joint contractor, Uf-^ritinir^ 
 executor or administrator, shall lose the benefit of the said enactments, or either of or by part 
 them, so as to be chargeable in respect or by reason only of any written acknowledg- payment, 
 ment or promise made and signed by any other or others of them : Provided always, Joint con- 
 that nothing herein contained shall alter or take away or lessen the effect of any pay- tractors, 
 ment of any principal or interest made by any person whatsoever : Provided also. Proviso for 
 that in actions to be commenced against two or more such joint contractors, or exeeu- *^.® ™'® "^ 
 tors or administrators, if it shall appear at the trial or otherwise that the plaintiff tacinrs'' 
 though barred by either of the said recited Acts or this Act, as to one or more of 
 such joint, contractors, or executors or administrators, shall nevertheless be. entitled 
 to recover against any other or others of the defendants, by virtue of a new acknowl- 
 edgment or promise, or otherwise, judgment may be given and costs allowed for the 
 plaintiff as to such defendant or defendants against whom he shall recover, and for 
 the other defendant or defendants against the plaintiff. 
 
 II. And be it further enacted, that if any defendant or defendants in any action Pleas in 
 on any sinaple contract shall plead any matter in abatement, to the effect that any abatement, 
 other person or persons ought to be jointly sued, and issue be joined on such plea, 
 
 and it shall appear at the trial that the action could not, by reason of the said recited 
 Acts or this Act, or of either of them, be maintained against the other person or per- 
 sons named in such plea, or any of thern, the issue joined on such plea shall be found 
 against the party pleading the same. 
 
 III. And be it further enacted, that no indorsement or memorandum of any pay- Indorse- 
 ment written or made after the time appointed for this act to take effect, upon any ments of 
 promissory note, bill of exchange, or other writing, by or on the behalf of the party P^y"*"'. 
 to whom^such payment shall be made, shall be deemed sufficient proof of such pay- 
 ment, so as to take the case out of the operation of either of the said statutes. 
 
 IV. And be it further enacted, that the said recited Acts and this Act shall be Simple 
 deemed and taken to apply to the case of any debt on simple contract alleged by way contract 
 of set-off on the part of any defendant, either by plea, notice or otherwise. \^ h 
 
 V. And be it further enacted, that no action shall be maintained whereby to charge y°^ ^f ^j 
 any person upon any promise made after full age to pay any debt coiitracted during off. 
 infancy, or upon any ratification after full age of any promise or simple contract made Conflrms,- 
 during infancy, unless such promise or ratification shall be made by some writing signed tion of 
 by the party to be charged therewith. promise 
 
 *9 Geo. IV. Cap. 15, ^^""*'- 
 
 An Act to prevent a Failwe of Justice by reason of Variance between Records ^ ®" ^> ••• 
 
 and Writings produced in Evidence in'support thereof. [9th May, 1828.] ' 
 
 TTheeeas, great expense is often incurred, and delay or failure of justice takes place 
 
703a 
 
 APPENDIX. 
 
 In cases 
 vhere a 
 variance 
 shall ap- 
 pear be- 
 tween 
 written or 
 printed 
 evidence 
 and the 
 record, the 
 Court may 
 order the 
 record to 
 be amend- 
 ed on pay- 
 ment of 
 costs. 
 
 2 W. 4, c. 
 89. 
 
 Servioa- 
 ble process 
 for tJie 
 commence- 
 ment of 
 personal 
 actions. 
 
 6 a, 4, 0. 
 16. 
 
 Writs may 
 be served 
 ■within two 
 hundred 
 yards of 
 the border 
 of the 
 oeunty 
 
 [ *705 ] 
 2 W. 4, c. 
 89. 
 
 The day 
 of service 
 to be in- 
 dorsed on 
 writ. 
 Mode of 
 appear, 
 ance to 
 servicea- 
 ble pro- 
 oess. 
 
 at trials, by reason of variance between writings produced in evidence, and the recital 
 or setting forth thereof upon the record on wHich the trial is ha,d, in matters not material 
 to the merits of the case ; and such record cannot now in any case be amended at 
 the trial, and in some cases cannot be amended at any time ; for remedy thereof, be 
 it enacted, that it shall and may be lawful for every Court of record holding plea in civil 
 actions, any judge sitting at nisi prius, and any Court of oyer and terminer and gen- 
 eral gaol delivery in England, Wales, the town of Berwick-upon-Tweed, and Ire- 
 land, if such Court or judge shall see fit so to do, to cause the record on which any 
 trial may be pending before any such judge or Court in any civil action, or in any^ 
 indictment or information for any misdemeanor, when any variance shall appear be- 
 tween any matter in writing or in print produced in evidence, and the recital or set- 
 ting forth thereof upon record whereon the trial is pending, to be forthwith amended 
 in such particular by some oflBcer of the Court, on payments of such costs 
 ( if any ) to the other party or such judge or Court shall think reasonable ; and there- 
 upon the trial shall proceed as if no such variance had appeared ; and in case 
 such trial shall be had at nisi prius, the order for the amendment shall be in- 
 dorsed on the postea, and returned together with the record ; and thereupon the pa- 
 pers, rolls, and other records of the Court from which such record issued, shall 
 be amended accordingly. 
 
 2 Wil. IV. Cap. 39. 
 
 An Act for Uniformity of Process in Personal Actions in his Majest'^s Courts 
 
 of Law at Westminster. [23 May, 1832] 
 
 Whbkeas the process for the commencement of personal actions in his Majesty's su- 
 perior Courts of Law at Westminster, is, by reason of its great variety and multipli- 
 city, very inconvenient in practice ; for remedy thereof be it enacted by the King's 
 most excellent Majesty, by and with the advice and consent of the lords spiritual and 
 tem,poral, and commons, in this present parliament assembled, and by the authority 
 of the same, that the process in all such actions commenced in either of the said 
 Courts, in cases where it is not intended to hold the defendant to special bail, or to 
 proceed against a member of parliament, according to the provisions contained in the 
 statute passed in the sixth year of the reign of his late Majesty King George the 
 Fourth, intituled, " An Act to amend the Laws relating to Bankrupts," shall, wheth- 
 er the action be brought by or against any person entitled to the privilege of peerage 
 or of ■ parliamefat, or of the Court wherein such action shall be brought, or of any 
 other Court, or to any other privilege, or by or against any other persog, be accord- 
 ing to the form contained in the Schedule to this Act annexed, marked No. 1, and 
 which process may issue from either of the said Courts, and shall be called a writ of 
 summons ; and in every such writ, and copy thereof, the place and county of the 
 residence tyf supposed residence of the party defendant, or wherein the defendant 
 shall be, or shall be supposed to be, shall be mentioned ; and such writ shall be is- 
 sued by the officer of the said Courts respectively by whom process serviceable in 
 the county therein mentioned, hath been heretofore issued from such Court ; and ev- 
 ery such writ may be served in the manner heretofore used in the county therein 
 mentioned, or within two hundred yards of the border thereof, and *not elsewhere 
 and the person serving the same shall and is hereby required to endorse on the writ 
 the day of the month and week of .the service thereof 
 
 II. And be it further enacted, that the mode of appearance to every such writ, or 
 under the authority of this Act, shall be by delivering a memorandum in writing ac- 
 cording to the form contained in said Schedule, and marked No 2, such memoran- 
 dum to be delivered to such officer or person as the Court out of which the process 
 issued shall direct, and to be dated on the day of delivery thereof. 
 
 III. And be it furthei; enacted, that in case it shall be made appear by affidavit,' 
 to the satisfaction of the Court out of which the process issued, or, in vacation, of 
 any judge of either of the said Courts that any defendant has not been personally 
 served with any such writ of gijmmons as hereinbefore mentioned, and has not, ao- 
 
on STATUTES. 
 
 705 
 
 cording to the exigency thereof, appeared to the action and cannot be compelkd so 2 W. 4, c. 
 to do without some more efficacious process, then in any such case it shall he lawful " • 
 for such Court or judge to order a writ of distringas to be issued, directed to the f'^^**'^ 
 sheriff of the county wherein the dwelling-house or place of abode of such defendant ^^ gnforj. 
 shall be situate, or to the sheriff of any other county, or to any other officer to be ed by writ 
 named by such Court or judge, in order to compel the appearance of such defendant; ofdistrin- 
 which writ of distringas shall be in the form and with the notice subscribed thereto, S^ '" *•"* 
 mentioned in the Schedule to this Act, marked No. 3 ; which writ of distringas and * t^g*nno(. 
 notice, or a copy thereof, shall be served on such defendant, if he can be met with, be served 
 •or, if not, shall be left at the place where such distringas shall be executed, and a with the 
 true copy of every such writ and notice shall be delivered together therewith, to the writ of 
 sheriff or other officer to whom such writ shall be directed ; and every such writ shall summons. 
 be made returnable on some day in term, not being less than fifteen days after the 
 teste thereof, and shall boar teste on the day of the issuing thereof, whether in term 
 or in vacation ; and if such writ of distringas shall be returned non est inventus and 
 nulla bona, and the party suing such writ shall not intend to proceed to outlawry 
 or waiver, according to the authority hereinafter given, and any defendant against 
 whom such writ of distringas issued shall not appear at or within eight days inclusive 
 after the return thereof, and it shall be made appear by affidavit to the satisfaction 
 of the Court out of which such writ of distringas issued., or, in vacation, of any judge 
 of either of the said Courts, that due and proper means were taken and used to serve 
 and execute such writ of distringas, it shall be lawful for such Court or judge to au- 
 thorize the party suing out such writ to enter an appearance for such defendant, and 
 to proceed, thereon to judgment and execution. 
 
 IV. And be it further enacted, that in all such actions wherein it shall be intend- Bailable 
 ed to arrest and hold any person to special bail who may not be in the custody of the process for 
 marshal of the Marshalsea of the Court of the King's Bench or of the warden of the '"^ °°™" 
 Fleet prison, the process shall be by writ of Capias, according to the form contained „,gjjj Jf 
 in said Schedule, and marked No. 4 ; and as many copies of such process, together personal 
 with every memorandum or notice suliscribed thereto, and all indorsements thereon, actions. 
 as there may be persons intended to be arrested thereon or served therewith, shall be 
 delivered therewith to the sheriff or other officer or person to whom the same may be 
 directed, or who may have the execution and return thereof, and who shall, upon or 
 forthwith after the execution ,of such prbcess, cause one such copy to be delivered to 
 every person upon whom such process shall be executed by him, whether by service 
 or arrest, and shall indorse on such writ the true day of the execution thereof, wheth- 
 er by service or arrest ; and if any defendant be taken or charged in custody upon 
 any such process, and imprisoned for want of sureties for his appesfirance thereto, the 
 plaintiff in such process may, before the end of the next term after the detainer or 
 arrest of such defendant, declare against such defendant, and proceed thereon in a 
 manner, and according to the directions contained in a certain Act of parliament made . . - ™ 
 in the fourth and fifth years of the reign of King William and Queen Mary, intituled, ^ jj_ ^ gi. 
 " An Act for delivering Declarations against Prisoners;" *provided always, that r ^wnj? -j 
 it shall be lawful for the plaintiff or his attorney to order the sheriff, or other officer L '" J 
 or person to whom such writ shall be directed, to arrest One or more only of the de- 
 fendants therein named, and to serve a copy thereof on one or more of the others, 
 which order shall be duly obeyed by such sheriff or other officer or person ; and such 
 service shall be of the same force and effect as the service of the writ of summons 
 hereinbefore mentioned, and no other. 
 
 v. And be it further enacted, that upon the return of non est inventus as to any Prooeed- 
 defendatit against whom such writ or capias shall have been issued, and also upon the ^^^ 
 return of non est inventus and nulla bona as to any defendant against whom such °" '"'^' 
 writ of distringas as hereinbefore mentioned shall have issued, whether such writ of 
 capias or distringas shall have issued against such defendant only, or against such 
 defendant and any other person or persons, it shall be lawful, until othstwise provi- 
 ded for, to proceed to outlaw or waive such defendant by writs of exigi facias and 
 proclamation, and otherwise, in such and the same manner as may now be lawfully 
 
706 
 
 APPENDIX. 
 
 2 W. 4 0. 
 89. 
 
 Proceed, 
 ings to 
 outlawry 
 may be 
 had after 
 judgment 
 given un- 
 der the 
 authority 
 of this act. 
 
 Filazer to 
 be ap- 
 pointed in 
 the Court 
 of Exche- 
 quer. 
 Mode of 
 detaining 
 a prisoner 
 in the cus- 
 tody of the 
 marshal or 
 of the war- 
 den of the 
 Fleet. 
 
 Mode of 
 proceeding 
 against a 
 member of 
 parliament 
 to enforce 
 the Stat. 5 
 G. 4,c. 16, 
 B. 10. 
 
 [ *707 ] 
 
 Duration 
 of writs. 
 
 Proviso as 
 to statute 
 of limita- 
 tions. 
 
 done upon the return of non est inventus to a pluries writ of capias ad responden- 
 dum issued after an original Writ,: provided always, that every such writ of exigent 
 proclamation, and other writ subsequent to the writ of capias or distringas, shall be 
 made returnable on a day certain in term ; and every such first writ of exigent and 
 proclamation shall bear teste on the day of the return of the writ of capias or distrin- 
 gas, whether such writ be returned in term or in vacation ; and every subsequent 
 writ of exigent and proclamation shall bear teste on the day of the return of the next 
 preceding writ ; and no such writ of capias or distringas shall be sufficient for the 
 purpose of outlawry or waiver, if the same be returned within less than fifteen days 
 after the delivery thereof to the sheriff or other officer to whom the same shall be di# 
 rected. 
 
 VI. And be it further enacted, that after judgment given in any action commenc- 
 ed by writ of summons or capias under the authority 'of this Act, proceedings to 
 outlawry or waiver may be had and taken, and judgment of outlawry or waiver given, 
 in such manner and in such cases as may now be lawfully done after judgment in an 
 action commenced by original writ ; provided always, that every outlawry or waiver 
 had under the authority of this Act shall and may be vacated or set aside by writ of 
 error or motion, in lilje manner as outlawry or waiver founded on an original writ 
 may now be vacated or set aside. 
 
 VII. And be it further enacted, that for the purpose of proceeding to outlawry 
 and waiver upon such writs of capias or distringas returnable in the Court of Ex- 
 chequer, it shall and may be lawful for the lord chief baron of the said Court, and 
 he is hereby required to appoint, from time to time, a fit person holding some other 
 office in said Court, to execute the duties of a filazer, exigentur, and clerk of the 
 outlawries in the same Court. 
 
 VIII. And be it further enacted, that when it shall be intended to detain in any 
 such action any person being in custody of the marshal of the Marshalsea of the 
 Court of the King's Bench, or of the warden of the Fleet prison, the process of de- 
 tainer shall ~be according to the form of the writ of detainer contained m the said 
 schedule, and marked No. 5 ; and a copy of such process, and of all indorsements 
 thereon, shall be delivered together with such process to the said marshal or warden 
 to whom the same shall be directed, and who shall forthwith serve such copy upon 
 the defendant personally, or leave the same at his room, lodging, or other places of 
 abode ; and such process may issue from either of the said Courts, and the declaration 
 thereupon, shall and may allege the prisoner to be in the custody of the said mar- 
 shall or warden, as the fact may be, and the proceedings shall be as against prison- 
 ers in the custody of the sheriff, unless otherwise ordered by some 'rule to be made 
 .by the judges of the said Courts. » 
 
 IX. And be it further enacted, that in all such actions wherein it shall be intend- 
 ed to proceed against a member of parliament according to the provisions of the said 
 statute made in the sixth year of the reign of his late Majesty King George the 
 Fourth, the process shall be according to the form contained *in the said Schedule 
 marked No. 6, and which process, and a copy thereof, shall be in lieu of the sum- 
 mons, or original bill and summons, and copy thereof, mentioned in the said 
 statute. 
 
 X. And be it further enacted, that no writ issued by authority of this Act, shall 
 be in force for more than four calendar months from the day of the date thereof, in- 
 cluding the day of such date, but every writ of summons and capias^ may be contin- 
 ued by alias aai pluries, as the case may require, if any defendant therein named 
 may not' have been arrested thereon or served therewith : provided always, that no 
 first writ shall be available to prevent the operation of any statute whereby the time 
 for the commencement of the action may be limited, unless the defendant shall be ar- 
 , rested thereon or served therewith, or proceedings to or towards outlawry shall be 
 had thereupon, or unless such writ, and every writ (if any) issued in continuation of 
 a preceding writ, shall be returned non est inventus and entered of record within 
 ■one -calendar month after the expiration thereof, including the day of such expiration, 
 and unless every writ issued in continuation of a preceding writ shall be issued with- 
 
OF STATUTES. 707 
 
 in one such calendar month after the expiration of the preceding writ, and shall con- 2 W. 4, o. 
 tain a memorandum indorsed thereon or subscribed thereto, specifying the day of °^- 
 the date of the first writ ; and return to be made in bailable process by the sheriff or 
 other officer to whom the writ shall be directed, or his successor in office, and in 
 process not bailable, by the plaintiff or his attorney suing out the same, as the case 
 may be. 
 
 XI. And whereas, according to the present practice, in certain cases no proceed- Proceed- 
 ings can be effectually had on any writ returnable within four days of the end of any '"^^ °" 
 term, until the beginning of the ensuing term, whereby an unnecessary delay is some- ^^ ^'^ ^^^' 
 times created ; for remedy thereof be it enacted, that if any writ of summons, capias, cuted at 
 or detainer issued by authority of this Act shall be served or executed on any day, certain 
 whether in term or vacation, all necessary proceedings to judgment and execution t'^es. 
 may, except as hereinafter provided, be had thereon, without delay, at the expiration 
 of eight days from the service of execution thereof, on whatever day the last of such 
 eight days may happen to fall, whether in term or vacation ; provided always, that ^™^''° ^°^ 
 if the last of such eight days shall in any case happen to fall on a Sunday, Christ- ^"° "y* 
 mas-day, or any day appointed for a public fast or thanksgiving, in either of such 
 oases the following day shall be considered as the last of such eight days ; and if the 
 last of such eight days shall happen to fall on any day between the Thursday before 
 and the Wednesday after Easter-day, then in every such case the Wednesday after 
 Easter-day, shall be considered as the last of such eight days : provided also, that if 
 such writ shall be served or executed on any day between the tenth day of August, 
 and the twenty-fourth day of October in any year, special bail may be put in by the 
 defendant in bailable process, or appearance entered, either by the defendant or the 
 plaintiff, or process not bailable, at the expiration of such eight days : provided also, 
 that no declaration, or pleading after declaration, shall be filed or delivered between 
 thb said tenth day of August and twenty-fourth day of October. 
 
 Xn. And be it further enacted, that every writ issued by authority of this Act Date and 
 shall bear date on the day on which the same shall be issued, and shall be tested in *^ste of 
 the name of the Lord Chief Justice or the Lord Chief Baron of the Court from which '''"™- 
 the same shall issue, or in case of a vacancy of such office, then in the name of a 
 senior puisne judge of the said Court, and shall be indorsed with the name and place Indorge- 
 of abode of the attorney actually suing out the same, and in case such attorney shall J?^"* "^ 
 not be an attorney of the Court in which the same is sued out, then also with the name gf* "g^^f 
 and place of iabode of the attorney of such Court in whose name such writ shall be tomey or 
 taken out ; but in case no attorney shall be employed for that purpose, then with a party su- 
 memorandum expressing that the same has been sued out by the plaintiff in person, ™g- 
 mentioning the city, town, or parish, and also the name of the hamlet, street, and 
 number of the house of such plaintiff 's residence, if any such there be. 
 
 *Xin. And be it further enacted, that every such writ of summons issued against [ *708 ] 
 a corporation aggregate may be served on the mayor or other head officer, or on the Service of 
 town clerk, clerk, treasurer, or secretary of such corporation ; and every such writ writs of 
 issued against the inhabitants of a hundred or other hke district may be served on the summons 
 high constable thereof, or any one of the high constables thereof; and every such rations'"' 
 writ issued against the inhabitants of any county, of any city or town, or the inhabi- and on in- 
 tants of any franchise, liberty, city, town, or place, not being part of a hundred or habitants 
 other like district, on some peace officer thereof. j^^j""' 
 
 XIV. And be it further enacted, that it shall and may be lawful to and for the ^^^^^ 
 judges of the said Courts, and they are required from time to time, to make all such 
 general rules and orders for the effectual execution of this Act, and of the intention General 
 and object hereof, and for fixing the cost^ to be allowed for and in respect of the mat- rules to be 
 ters herein contained, and the performance thereof, as in their judgment shall be made by 
 deemed necessary or proper, and for th^ purpose to meet as soon as conveniently ""* judges, 
 may be after the passing hereof. 
 
 XV. And be it further enacted, that it shall be lawful in term time, for the Court I^ules and 
 out of which any writ issvxed by authority of this Act, or any writ of capias ad satis- *'™^'? 
 faciendum, fieri facias, or eligit, shall have issued, to make rules, and also for any 
 
 Vol. I. 89 
 
708 
 
 APPENDIX. 
 
 2 W. 4 0. 
 39. 
 
 made for 
 the return 
 of writs. 
 
 Proceed- 
 ings in 
 fault of 
 appear- 
 ance or 
 special 
 bail. 
 
 judge of either of the said Courts, in vacation, to make orders, for the return of any 
 such writ; and every such order shall he of the same force and effect as a rule of 
 Court made for the like purpose ; provided always, that no attachment shall issue for 
 disohedience thereof until the same shall have been made a rule of Court. 
 
 XVI. And be it further enacted, that all such proceedings as are mentioned in 
 ^g_ any writ, notice, or warning issued under this Act, shall and may be had and taken 
 in default of a defendant's appearance or putting in special bail, as the case 
 may be. 
 
 XVn. And be it further enacted, that every attorney whose name shall be in- 
 dorsed on anywrit issued by authority of this Act shall on demand in writing made 
 by or on behalf of any defendant, declare forthwith whether such writ has been is- 
 sued by him, or with his authority or privity ; and if he shall answer in the affirma- 
 tive, then he shall also, in case the Court or any judge of the same or of any other 
 writ issued Court, shall so order and direct, declare in writing, within a time to be allowed by 
 by anthori- such Court or judge, the profession, occupation, cr quality, and place of abode of the 
 ty and to plaintiff, on pain of being guilty of a contempt of the Court from which such writ 
 shall have appeared to have been issued; and if such attorney shall declare that the 
 writ was not issued by him, or with his authority or privity, the said Court or any judge 
 of either of the said Courts, shall and may, if it shall appear reasonable so to do, 
 make an order for the immediate discharge of any defendant or defendants who may 
 have been arrested on any such writ, on entering a common appearance. 
 
 XVIII. And be it further enacted, that it shall and may be lawful to and for the 
 judges of each of the said Courts from time to time, to make such rules and orders 
 for the government and conduct of the ministers and officers of their respective Courts 
 in relation to the distribution and performance of the duties and business to be done 
 and performed in the execution of this Act, as such judges may think fit and reason- 
 able ; provided always, that no additional charge be thereby imposed on t^ie 
 suitors. 
 
 XIX. Provided always, and be it further enacted, that nothing in this Act con- 
 tained shall subject any person to arrest, cutlawry, or waiver, who, by reason of any 
 privilege, usage, or otherwise, may now by law be exempt therefrom, or shall extend 
 to any cause removed into either of the said Courts by writ of pone certiorari, re- 
 cordari foAiias loquelum, habeas corpus, or otherwise. 
 
 XX. And whereas there are in divers parts of England certain districts and plac- 
 es, parcel of some one county, but wholly situate within and surrounded by some 
 other county, which is productive of inconvenience and *delay in the service and 
 execution of the process of the said Courts; for remedy thereof be it enacted, that 
 every such district and place shall and may, for the purpose of the service and exe- 
 
 sons privi- ^^^^'^^ "f every writ and process, whether mesne or judicial, issued out of either of 
 leged from ^^ said Courts, be deemed and taken to be part as well of the county wherein such 
 arrest, &c. district or place is so situate as aforesaid as of the county whereof the same is par- 
 Places, eel ; and every such writ and process may be directed accordingly, and executed in 
 
 onroount ®^*®' °^ ^"^"^ counties. 
 
 and situ- XXI. And be it further enacted, that from the time when this Act shall commence 
 ate in and take effect, the writs hereinbefore authorized shall be the only writs for the com- 
 another, to mencement of personal actions in any of the Courts aforesaid, in the cases to which 
 be deemed g^^jj ^j^jg ^^^ applicable ; and costs to be allowed and charged for such writs shall 
 be the same as for writs of latitat ; provided always, that nothing in this Act con- 
 tained shall abridge, alter, or effect the franchises and jurisdiction of either of the 
 counties palatine of Lancaster or Durham, or at any officer or minister thereof. 
 
 XXII. And be it further enacted, that Ais Act shall commence and take effect 
 on the first-day of Michaelmas Term next after the passing thereof. 
 
 XXin. And be it further enacted, that this Act may be amended, altered, or re- 
 pealed during the present session of parliament, 
 for commencement of personal actions. Commencement of Act. Act may be altered liiis session, 
 
 [ *709 ] 
 
 Attorney 
 to declare 
 whether 
 
 declare 
 name and 
 place of 
 abode of 
 his client 
 if ordered. 
 If writ not 
 issued by 
 authority 
 of the at- 
 tornies the 
 defendant 
 may be 
 discharg- 
 ed. 
 
 Rules to 
 be made 
 by the 
 Courts for 
 the gov- 
 ernment 
 of their 
 ministers 
 and offi- 
 cers. 
 
 Proviso 
 for per. 
 
 part of 
 each. 
 
 Writs 
 hereinbe- 
 fore au- 
 thorized 
 to be the 
 only writs 
 
OF STATUTES. 
 
 709 
 
 2 W. 4, c. 
 39 
 Schedule to wMcli this aet refers. 
 
 No. 1. 
 Writ of Summons. 
 WiLLiAi^ the Fourth, &c. 
 
 To C. D. of &c. in the County of greeting ; 
 
 We command you, [or as before or often we have commanded you,J that within 
 eight days after the service of this writ on you, inclusive of the day of such service, 
 you do cause an appearance to be entered for you in our Court of 
 in an action on promises [or as the case may be'], at the suit of A. B. And take 
 notice, that, in default of your so doing, the said A. B. raa.'^ cause an appearance to 
 be entered for you, and proceed therein to judgment and execution. 
 
 Witness at Westminster, the day of 
 
 ^ Memorandum to he subscribed on the Writ. 
 
 N. B. This writ to be served within four calendar months from the date thereof, 
 including the day of such date, and not afterwards. 
 
 Indorsement to he made on the writ before Service thereof. 
 This writ was issued by E. F. of attorney for the said A. B. 
 
 Or, 
 This writ was issued in person by A. B. who resides at 
 ■ [Mention the city, town, or parish, and also the name of the hamlM, street, and 
 number of the house of the plaintiff's residence, if any such."] 
 
 Indorsement to be made on the Writ after service thereof 
 This writ was served by me X. Y. on the 
 
 day 18 
 
 X Y. 
 
 *No. 2. [ *7lo ] 
 
 Forms of entering on Appearance. 
 A. plaintiff, against C. D. 
 
 or. 
 
 The defendant (7. D. appears in person. 
 E. F. attorney for G. D. appears for him. 
 
 agamst C. ^.^ and another, ^ ^ ^ ^^^^J^ ^^^ ^^^ pl^j^fjg.^ ^pp^^^^ g,^ 
 
 '"' , , the defendant C. iJ. according to 
 
 Entered the day 18 
 
 . ^ _, tS^' , ., the defendant C. iJ. according to the statuf*. 
 
 against C. D. and others. ' ^^ 
 
 ■ No. 3. 
 Writ of 'Distringas. 
 William the Fourth, &c. 
 
 To the sheriff of , greeting: 
 
 We command you, that you omit not by reason of any liberty in your bailiwick, 
 but that you enter the same, and distrain upon the goods and chattels of C. D. for 
 the sum of forty shillings, in order to compel his appearance in our Court of 
 to answer A. B. in a plea of trespass on the case [or debt, or as the case may be ;] 
 and how you shall execute this our writ you make known to us in our said Court on 
 the day of now ne?t ensuing. 
 
710 
 
 APPENDIX. 
 
 2^W. 4 c. Witness, at "Westminster the day of in the 
 
 year of onr reign. 
 
 Notice to he subscribed to the foregoing Writ. 
 
 In the Court of 
 
 ' A. B. plaintiff, 
 and 
 G. D. defendant. 
 Mr. CD. 
 
 Take notice, that I have this day distrained upon your goods and chattels in the 
 sum of forty shillings, in consequence of your not having appeared in the said Court 
 to answer to the said A. B. according to the exigency of a writ of summons bearing 
 teste on the day of ; and that in default of your 
 
 appearance to the present writ within eight days inclusive after the return hereof, the 
 said A. B. will cause an appearance to be entered for you, and proceed thereon, to 
 judgment and execution, \or if the defendant be subject to outlawry, will cause 
 proceedings to be taken to outlaw you.] 
 
 No. 4. 
 
 Writ of Capias. 
 
 William the Fourth, &c. 
 To the sheriff of 
 
 or, 
 To the constable of Dover Castle, 
 
 or, 
 To the mayor and bailiffs of Bei-wick-upon-Tweed, 
 or, 
 \as the case may be,] greeting : 
 
 We command you, {or, as before, or, often, we have commanded you,] that you 
 omit not by reason of any liberty in your bailiwick, but that you enter the same, and 
 take C. D. of if he shall be found in your bailiwick, and him 
 
 [ *711 ] safely keep until he shaJl have given you bail or made *depoat with yon according 
 to law in an action on promises [or, of debt, &c.] at the suit of A. B. or until the 
 said G. D. shall by other lawful means be discharged from your custody. And we 
 do further command you, that on execution hereof you deliver a copy hereof to the 
 said G. C. And we hereby require the said G. D. to take notice, that within eight 
 days after execution hereof on him, inclusive of the day of such execution, he should 
 cause special bail to be put in for him in our Court of to the said action, 
 
 and that in default of his so doing such proceedings may be had and taken as are 
 mentioned in the warning hereunder written or indorsed hereon. And we do farther 
 command you the said sheriff, that immediately after the execution hereof you do re- 
 turn this writ to our said Court, together with the manner in which you shall have 
 executed the same, and the day of the execution hereof ; or that if the same shall re- 
 main unexecuted, then that you do so return the same at the expiration of four cal- 
 endar months from the date hereof, or soonei*if you shall be thereto required by or- 
 der of the said Court or by any judge thereof. 
 Witness at Westminster, the day of 
 
op STATUTES. 711 
 
 2W.4 e. 
 
 89. 
 
 Memoranda to be subscribed to the Writ. 
 
 N. B. This writ is to be executed within four calendar months from the date 
 thereof, including the day of such date, and not afterwards. 
 A Warning to the Defendant. 
 
 1. If a defendant, being in custody, shall be detained on this writ, or if a defend- 
 ant, being arrested thereon, shall go to prison for ,want of bail, the plaintiff may de- 
 clare against any such defendant before the end of the term next after such detainer 
 or arrest, and proceed thereon to judgment and execution. 
 
 2. If a defendant, being arrested on this writ, shall have made a deposit of money 
 according to the stat. 7 & 8 Geo. 4, c. 71, and shall omit to enter a common appear- 
 ance to the action, the plaintiff, will be at liberty to enter a common appearance for 
 the defendant, and proceed thereon to judgment and execution. 
 
 3. If a defendant having given bail on the arrest, ^11 omit to put in special bail 
 as required, the plaintiff may proceed against the sheriff or on the bail-bond. 
 
 4. If a defendant, having been served only with this writ, and not arrested there- 
 on, shall not enter a common appearance within eight days after such service, the 
 plaintiff may enter a common appearance for such defendant, and proceed thereon to 
 judgment and execution. 
 
 Indorsement to be made on the Writ of Oapias. 
 
 Bail for £ by affidavit. 
 
 or. 
 Bail for £ by order (£\naming ike judge making the or- 
 
 der\ dated the day of 
 
 This writ was issued by E. F. of attorney for the plaintiff 
 
 {or plaintifis] within named. 
 
 Or, 
 This writ was issued in person by the plaintiff within named, who resides at 
 
 [mention the city, town, or pebrish, and also the name of the hamlet, 
 street, and number of the house of the plaintiff 's residence, if any such there be.'] 
 
 No. 5. 
 
 Writ of Detainer. 
 
 William the Fourth, &e. 
 To the Marshal of the Marshalsea of our Court before Us [or. To the Warden of 
 
 Our Prison of the Fleet.] 
 
 We command you, that you detain G. D. if he shall be found in your custody *at f *7l2 1 
 tl^e delivery hereof to you, and him safely keep in an action on promises [dr, of debt, 
 &e. as the case may &e] at the suit of A. B., until he shall be lawfully discharged 
 from your custody. And we do further command you, that on receipt hereof you do 
 warn the said C D., by serving a copy hereof on him, that within eight days after 
 service of such copy, inclusive of the day of such service, he do cause special bail to ^ 
 
 be put in for him in our Court of • to the said action ; and that in de- 
 
 fault of his so doing the said A. B. may declare against him before the end of the 
 term next after his detainer, and proceed thereon to judgment and execution. And 
 we do further command you the said [Marshal or Warden, as the care iimy be], that 
 immediately after the service hereof you do return this our writ, or a copy hereof, to 
 our fiaid tCourt, .together with the day of the service hereof 
 
 Witness. at Westminster, the day, of 
 
712 
 
 APPENDIX. 
 
 ^^' *' "■ ^ S- ^'^^ '^"'^ "'* *" ** indorsed in the same manner as the writ of Oapiag, 
 but not to contain the Warnings in that Writ. 
 
 No. 6. 
 
 Writ of summons to be served on a Member of Parliament in order to enforce the 
 provisions of the Statute 6 Geg. 4, c. 16, s. 10. 
 
 Esquire, haYing Privilege of Parliament, 
 
 William the Fourth, &c. 
 
 To G. JD. of, &e. 
 greeting : 
 
 We command you, that, within one calendar month next after personal service 
 hereof on you, you do cause an appearance to be entered for you in our Court of 
 
 in an action [on promises, debt, &c. as the case may be] , at the suit of 
 A. B. ; and you are hereby informed, that an affidavit of debt for the sum of 
 
 hath been filed in the proper office, according to the provisions of a certain Act 
 of parliament made and passed in the sixth year of the reign of his late Majesty Kmg 
 George the Fourth, intituled, " An Act to amend the Laws relating to Bankrupts," 
 and that unless you pay, secure, or compound for the debt sought to be recovered in 
 this action, or enter into such bond as by the said act is provided, and cause an ap- 
 pearance to be entered for you, \fithin one calendar month next after such service 
 hereof, you will be deemed to have committed an act of bankruptcy from the time of 
 the service hereof. 
 
 Witness at Westminster, the day of 
 
 If. B. This writ is to be served within Four Calendar Months from the date 
 
 thereof including the Bay of such Bate, and not afterwards. 
 
 Direction — This Summons is to be indorsed with the name of the plaintiff or 
 his attorney in like manner as the Writ of Capias. 
 
 2&8W. 
 4, c. 71. 
 
 Claims to 
 right of 
 common 
 and otlier 
 profits, a 
 prendre, 
 not to be 
 defeated 
 
 2 & 3 WiU. IV. Cap. 71. 
 
 An Act for shortening the time of Prescription in certain Gases. 
 
 [1st August, 1832.] 
 
 Whereas the expression " time immemorial, or time whereof the memory of man 
 runneth not to the contrary," is now by the law of England in many cases considered 
 to include and denote the whole period of time from the reign of King Richard the 
 First, whereby the title to matters that have been long enjoyed is sometimes defeated 
 by showing the commencement of such enjoyment, which is in many cases productive 
 of inconvenience and injustice ; for remedy thereof, be it enacted, by the King's 
 most excellent Majesty, by and with the advice and consent of the lords spiritual and 
 temporal, and commons, in this present parliament assembled, and by the authorily 
 of the same, that no claim which may be lawfully made at the common law, by cus- 
 tom, prescription, or grant, to any right of common, or other profit or benefit to be 
 taken and enjoyed from or upon any land of our Sovereign Lord the King, his heirs 
 or successors, or any land being parcel of the Duchy of Lancaster, or of the Duchy of 
 Cornwall, or of any ecclesiastical or lay person or body corporate, except such mat- 
 ters and things as are herein specially provided for, and except tithes, rent, and ser- 
 vices, shall, where such right, profit, or benefit shall have been actually taken and 
 enjoyed by any person claiming right thereto, without interruption for the full period 
 of thirty years, be defeated or destroyed by showing only that such right, profit, or 
 
OP STATUTES. 712a 
 
 benefit was first taken, or enjoyed at any time prior to, such period of thirty years, but 2 & 3 W. 
 nevertheless such claim may be defeated in any other way by which the same is now ^> "• '^^• 
 liable to be defeated ; and when such right, profit, or benefit shall have been so thirty 
 taken and enjoyed as aforesaid for the full period of sixty years, the right thereto y^^^^ ^^- 
 shall be deemed absolute and indefeasible, unless it shall appear that the same was 1,°^ ^if" '' 
 taken and enjoyed by some consent or agreement expressly made or given for that ;„„ tjig 
 purpose by deed or writing. commenoe- 
 
 n. And be it further enacted, that no claim which may be lawfully made at the ment; af- 
 common law, by custom, prescription, or grant, to any way or other easement, or to '^'' '"^*J 
 any watercourse, or the use of any water, to be enjoyed or derived upon, over, or foymgnt" 
 from any land or water of our said Lord the King, his heirs or successors, or being the right 
 parcel of the Duchy of Lancaster or of the Duchy of Cornwall, or being the, property to be ab- 
 of any ecclesiastical or lay person, or body_ corporate, when such way or other matter solute, Un- 
 as herein last before mentioned shall have been actually enjoyed by any person claim- ,^'' 
 ing right thereto without interruption for the full period of twenty years, shall be de- ggnt or 
 feated ot destroyed by showing only that such way or other matter was first enjoyed agree- 
 at any time prior to such period of twenty years, but nevertheless such claim may be nient._ 
 defeated in any other way by which the same is now liable to be defeated ; and where " "^'^'f 
 such way or other matter, as herein last before mentioned, shall have been so enjoyed ^avor 
 as aforesaid for the. full period of forty years, the right thereto shall be deemed abso- other 
 lute and indefeasible, unless it shall appear that the same was enjoyed by some con- ease- 
 sent or agreement expressly given or made for that purpose by deed or writing. ments, the 
 
 III. And be it further enacted, that .when the access and use of light to and for bg'twentv 
 any dwelling-house, work-shop, or other building, shall have been actually enjoyed years and 
 therewith for the full period of twenty years without interruption, the right thereto forty years 
 shall be deemed absolute and indefeasible, any local usage or custom to the con- Claim to 
 trary notwithstanding, unless it shall appear that the same was enjoyed by some con- V- j.P* 
 sent or agreement expressly made or given for that purpose by deed or writing. s^^^ Cor 
 
 IV. And be it further enacted, that each of the respective periods of years herein- twenty 
 before mentioned shall be deemed and taken to be the period nest before some suit years, in- 
 or action wherein the claim or matter to which such period may relate shaU have "^i^asible, 
 been or shall be brought to in question, and that no act or other matter shall be deemed shown to 
 to be an interruption, within the meaning of this statute, unless the same shall have have been 
 been or shall be submitted to or acquiesced in for one year after the party interrupt- by con- 
 ed shall have had or shall have notice thereof, and of the person making or authoriz- ?f°'- 
 
 ,, , 1 1 '■ ° Before 
 
 ing the same to be made. mentioned 
 
 V. And be it further enacted, that, in all actions upon the case and other plead- periods to 
 ings, wherein the party claiming may now by law allege his right generally, without be deemed 
 averring the existence of such right from time immemorial, such general allegation tlio^e next 
 shall still be deemed suflScient, and, if the same shall be denied,-all and every the for*dlfm ** 
 matters in this act mentioned and provided, which shall be applicable to the case, to which 
 shall be admissible in evidence to sustain or rebut such allegation :' and that in all such peri- 
 pleadings to actions of trespass, and in all other pleadings wherein before the passing oda relate, 
 of this act it would have been necessary to allege the right to have existed from time [ *713 ] 
 "immemorial, it shall be sufficient to allege the enjoyment therefore as of right by the I" actions 
 occupiers of the tenement in respect whereof the same is claimed for and during such °^g ^^e 
 of the periods mentioned in this act as may be applicable to the case, and without claimant 
 claiming in the name or right of the owner of the fee, as is now usually done ; and if may al- 
 the other party shall intend to rely on any proviso, exception, incapacity, disabiKty, lege his 
 contract, agreement, or other matter herein before mentioned, or on any cause or mat- "8^* S^- 
 ter of fact or of law, not incopsistent with the simple fact of enjoyment, the same arpreSent. 
 shall be speciajly alleged and set forth in answer to the allegation of the party in pieas to 
 claiming, and shall not be received in evidence on any general traverse or denial of trespass 
 such allegation. and other 
 
 VI. And be it further enacted, that, in the several cases mentioned in and provid- where™^' 
 ed for by this act, no presumption shall be allowed or made m favor or support of any party is 
 claim, upon proof of the exercise or enjoyment of the right or matter claimed, for any sued to al- 
 
71^ 
 
 APPENDIX. 
 
 2&3W. 
 4, c. 71. 
 
 lege hla 
 claim from 
 time im- 
 memorial, 
 the period 
 mentioned 
 in yiis act 
 may be al- 
 leged; and 
 exceptions 
 or other 
 matters to 
 be replied 
 specially, 
 
 [ *714 ] 
 
 Restrict- 
 ing the 
 presump- 
 tion to be 
 allowed in 
 support of 
 claims 
 herein be- 
 fore pro- 
 Tided &r. 
 Proviso 
 for in- 
 fants, &c. 
 What time 
 to be ex- 
 *clu3ively 
 in comput- 
 ing the 
 term of 
 forty years 
 appointed 
 by this 
 act. 
 
 Not to ex- 
 tend to 
 Scotland, 
 or Ireland. 
 Com- 
 mence- 
 ment of 
 act. 
 
 Act may 
 be amend- 
 ed. 
 
 8&4 W. 
 4, e. 42. 
 Judges to 
 have pow- 
 er to make 
 alterations 
 in the 
 mode of 
 pleading 
 in the su- 
 peribr 
 Courts, 
 &c. 
 
 [ *7i5 ] 
 
 less period of time or number of years than for such period or nuBihcr mentioned 
 in this act, as may be applicalble to the case and to the nature of the clafin. 
 
 VII. Provided also, that the time during which any person otherwise capable of 
 resisting any claim to any of the matters before mentioned, shall have been or shall 
 be an infant, idiot, non compos mentis, feme covert, or tenant for life, or during 
 which any action or suit shall have been pending, and which shall have been diligent- 
 ly prosecuted until abated by the death of any party or parties thereto, shall be ex- 
 cluded in the computation of the periods hereinbefore mentioned, except only in 
 cases where the right or claim is hereby declared to be absolute and indefeasible. 
 
 VII. Provided always, and be it further enacted, that when any land or water, 
 upon, over, or from which any such way or other convenient water course or use of 
 water shall have been or shall be enjoyed or derived, hath been or shall be held un 
 der or by virtue of any term of life, or any term of years exceeding three years from 
 the granting thereof, the time of the enjoyment of any such way or other matter as 
 herein last before mentioned, during the continuance of such term, shall be excluded 
 in the computation of the said period of forty years, in case the claim shall within 
 three years next after the end or sooner determination of such term be* resisted by 
 any person entitled to any reversion expectant on the determination thereof. 
 
 IX. And be it further enacted, that this act shall not extend to Scotland or 
 Ireland. 
 
 X. And be it farther enacted, that this act shall commence and take effect on the 
 first day of Michaelmas term now next ensuing. 
 
 XL And be it further enacted, that this act*may be amended, altered, or repealed, 
 during this present session of parliament. 
 
 3 & 4 Will. Cap. IV. 42. 
 
 An Act for the further Amendment of the Law, and the better Advancement of 
 Justice. [14th August, 1833.] 
 
 Whereas it would greatly contribute to the diminishing of expense in suits in the 
 SHperior Courts of common law at Westminster if the pleadings therein were in some 
 respects altered, and the questions to be tried by the jury left less at large than they/ 
 now are according to the course and practice of pleading in several forms of action ; 
 but this cannot be conveniently done otherwise than by rules or orders of the judges 
 of the said Courts from time to time to be made, and doubts may arise as to the 
 power of the said judges to make such alterations without the authority of parliament : 
 be it therefore enacted by the king's most excellent Majesty, by and with the advice 
 and consent of the lords Spiritual and temporal, and commons, in this present parlia- 
 ment assembled, and by the authority of the same, that the judges of the said superi- 
 or Courts, or any eight or more of them, of whom the chiefs of each of the said Courts 
 shall be three, shall and may, by any rule or order *to be from time to time by them 
 made, in term or vacation, at any time within five years from the time when this Act 
 shall take effect, make such alterations in the mode of pledging in the said Courts, 
 and in the mode of entering and transcribing pleadings, judgments, and other pro- 
 ceedings in actions at law, and such regulations as to the payment of costs, and other- 
 wise for carrying into effect the said alterations, as to them may seem expedient ; and 
 all such rules, orders, or regulations shall be laid before both houses of parliament, 
 if parliament be then sitting, immediately upon the making of the same, or if parlia/- 
 ment be not sitting, then within five days after the next meeting thereof, and no such 
 rule, order, or regulation shaU have effect until six weeks after the same shall have 
 been so laid before both houses of parliament ; and any rule or order so made shall, 
 from and after such time aforesaid, be binding and obligatory on the said Courts, 
 and all other Courts of comilion law, and on all Courts of error into which the judg- 
 ment of the said Courts or any of tham shall be carried by any writ of error, and be 
 of the like force aiid effect as if the provisions contained therein had been expressly 
 
OP STATUTES. 715 
 
 enacted by parliament : provided always, that no such rule or order shall have the 3 & 4 W. 
 effect of depriving any person of the power of pleading the general issue, and giving- ^" "• ^^• 
 the special matter in evidence, in any case wherein he is now or hereafter shall be- Not to de- 
 entitled to do so by virtue of any act of parliament now or hereafter to be in fotce. P"^' ^°y 
 
 II. And whereas there is no remedy provided by law for injuries to the real estate thrower 
 of any person deceased, committed in his lifetime, nor for certain wrongs done by a of plead- 
 person deceased in his lifetime to another in respect of his property, real or personal ; ing the 
 for remedy thereof be it enacted, that an action of trespass, or trespass on the case, general is- 
 as the case may be, may be maintained by the executors or administrators of any Exej„torg 
 person deceased for any injury to the real estate of such person, committed in his may bring 
 lifetime, for which an action might have been maintained by such person, so as such aoticns for 
 injury shall have been committed within six calendar months before the death of such injuries to 
 deceased person, and provided such action shall be brought within one year after the *'^* [**' . 
 death of such person ; and the damages when recovered, shall be part of the personal the^de-** 
 estate of such person; and further that an action of trespass, or trespass on the case, ceased; 
 as the case may be, may be maintained against the executors or administrators of any and ac-, 
 person deceased for any wrong committed by him in his lifetime to another in respect *'°°' ""7 
 of his property, real or personal, so as such injury shall have been committed within agai'nst^ex-' 
 six calendar months before such person's death, and so as such action shall be brought ecutora for 
 within six calendar months after such executors or administrators shall have taken an injury 
 upon themselves the administration of the estate and effects of such person ; and the *" proper- 
 damages to be recovered in such action shall be payable in like order of administra- ^^' ''^^^ " 
 tion as the simple contract debts of such person. by"heir' 
 
 m. And be it further enacted, that all actions of debt for rent upon an indenture testator, 
 of demise, all actions of covenant or debt upon any bond or other specialty, and all Limitation 
 actions of debt or scire facias upon any recognizance, and also all actions of debt of action 
 upon any award where the submission is not by specialty, or for any fine due in re- of debt on 
 Bpect of any copyhold estates, or for an escape, or for money levied on any jfieri 'Peoial- 
 facias, and all actions for penalties, or damages, or sums of money given to the par- ^' 
 ty grieved, by any statute now or hereaTter to be in force, that shall be sued or 
 brought at any time after the end of the present session of parliament, shall be com- 
 menced and sued within the time and limitation hereinafter expressed, and not after ; 
 that is to say, the said actions of debt for rent upon an indenture of demise, or cove- 
 nant of debt upon any bond or other specialty, actions of debt or scire facias upon 
 recognizance, within ten years after the end of this present session or within twenty 
 years after the cause of such actions or suits, but not after ; the said actions by the 
 party grieved, one year after the end of this present > session, or within two years af- 
 ter the cause of such actions or suits, but not after ; and the said other actions with- 
 in three years after the end of the present session, or within six years after the cause 
 of such actions *or suits, but not after : provided that nothing herein contained r *7'lg 1 
 shall extend to any action given by any statute where the time for bringing such ao- 
 tion is or shall be by any statute specially limited. 
 
 IV. And be it further enacted, that if any person or persons that is or are or shall Infants, ' 
 be entitled to any such action or suit, or to such scire facias, is or are or shall femes co- 
 be, at the time of any such cause of action accrued, within the age oi twenty -one ^*'*» *■"• 
 years, /eme covert, non compos mentis, or beyond the seas, then such person or per- 
 sons shall be at liberty to bring the same actions, so as they commence the same 
 
 within such times after their coming to or being of full age, discovert, of sound 
 memory, or returned from beyond the seas, as other persons having no such impedi- 
 ment should, according to the provisions of this Act, have done ; and that if any Absence 
 person or persons against whom there shall be any cause of action is or are, or shall of defend- 
 be at the time such cause of action accrued, beyond the seas, then the person or per- ™ ^ *J^ 
 sons entitled to any such cause of action shall be at liberty to bring the same against provided 
 such person or persons within such times as are before limited after the return of such for. 
 person or persons from beyond the seas. 
 
 V. Provided always that if any acknowledgement shall have been made 
 
 Vol! I. 90 
 
716 
 
 APPENDIX. 
 
 8&4W. 
 4, 0. 42. 
 
 Proviso in 
 case of ac- 
 knowl- 
 edgment 
 
 The limi- 
 tation af- 
 ter judg. 
 •ment or 
 outlawry 
 reversed. 
 
 either by. writing signed by the party liable by virtue of such indenture, 
 specialty, or recognizace, or his agent, or by part payment or part sat- 
 isfaction on account of any principal or interest being then due thereon, it 
 shall and may be lawful for the person or persons entitled to such actions to 
 bring his or their action for the money remaining unpaid and so acknowledged to be 
 writing ^^^ within twenty years after such acknowledgement liy writing or part payment or 
 or by part part satisfaction as aforesaid, or in case the person or persons entitled to such action 
 payment, shall at the time of such acknowledgement be under such disability as aforesaid, 
 or the party making such acknowledgement be, at the time of making the same, be- 
 yond the seas, then within twenty years of such disability shall have ceased as afore- 
 said, or the party shall have returned from beyond seas, as the case may be ; and 
 the plaintiff of plaintiffs in any such action, or any indenture, specialty, or recog- 
 nizance, may, by way of replication, state such acknowledgment, and that such ac- 
 tion was brought within the time aforesaid, in answer to a plea of this statute. 
 
 VI. And nevertheless be it enacted, that if in any of the said actions judgment bo 
 given for the plaintiff, and the same be reversed by error, or a verdict pass for the 
 plaintiff, and upon matter alleged in arrest of judgment the judgment be given 
 against the plaintiff, and he take nothing by his plaint, writ, or bill, or if in any of the 
 said actions the defendant shall be outlawed, and shall after reverse the outlawry, 
 that in all such cases the party plaintiff, his executors or administrators, as the case 
 No part of shall require, may commence a new action or suit from time to time within a year 
 the united' after such judgment reversed, or such judgment given against the plaintiff, or out- 
 kingdom, la-y^ry reversed, and not after. 
 
 deemed ^ ^■'■^' ■^"'^ ^* further enacted, that no part of the united kingdom of Great 
 beyond Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, and Sark, 
 the seas nor any Island adjacent to any pf them, being part of the dominions of his Majesty, 
 within the ghall be deemed to be beyond the seas within the meaning of this Act or of the 
 meaumg ^^j passed in the twenty-first year of the reign of King James the first, intituled 
 Restrio- " -^'^ ■^'^^ ^^^ limitation of Actions, and for avoiding of Suits of law." 
 tion as to VIII. And be it further enacted, that no plea in abatement for the non-joinder 
 plea of any person as a co-defendant shall be allowed in any Court of common law, unless 
 
 in abate- jj g^g^jj ^,g gtated in such plea that such person is resident within the jurisdiction of 
 nonioinder ^^^ Court, and unless the place of residence of such person shall be stated with con- 
 of a oo-de- venient certainty in an affidavit verifying such plea. 
 
 fendant. IX. And be it further enacted, that to any plea in abatement in any Court of 
 
 Reply of la^ of tjjQ non -joinder of another person the plaintiff may reply that such person 
 Dlea'in *° ^^ ^^^^ discharged by bankruptcy and certificate, or under an Act for the Eelief 
 abatement of Insolvent Debtors. 
 
 of non- *X. And be it further enacted, that in all cases in which after such plea in abate- 
 
 joinder. ment the plaintiff shall, without having proceeded to trial upon an issue thereon, 
 [ *717 J commence another action against the defendant or defendants in the action in which 
 Provision gm,jj pjga in abatement shall have been pleaded, and the person or persons named in 
 of subse-^^^ such plea in abatement as joint contractors, if it shall appear by the pleadings in 
 such subsequent action, or on the evidence at the trial thereof, that all the original 
 defendants are liable, but that one or more of the persons named in such plea in 
 abatement or any subsequent plea in abatement are not liable, as a contracting party 
 or parties, the plaintiff shall nevertheless be entitled to judgment, or to a verdict 
 and judgment, as the case may be, against the other defendant or defendants who 
 shall appear to be liable.; and every defendant who is not so liable shall have judg- 
 ment, and shall be entitled to his costs as against the plaintiff who shall be allowed 
 the same as costs in the cause against the defendant or defendants who shall have 
 so pleaded in abatement the non-joinder of such person ; provided that any such de- 
 fendant who shall have so pleaded in abatement shall be at liberty on the trial to 
 adduce evidence of the liability of the defendants named by him in such plea in 
 abatement. 
 
 XI. And be it further enacted, that no plea in abatement for a misnomer shall be 
 
 quent pro- 
 
 against 
 the per- 
 sons 
 
 named in 
 a plea in 
 abate- 
 ment 
 
APPENDIX. 717 
 
 allowed in any personal action, but that in all cases in which a misnomer would but 3 & 4 W. 
 for this Act have been by law pleadable in abatement in such actions, the defendant ^' "■ ^^• 
 shall be at liberty to cause the declaration to be amended, at the costs of the plain- Misnomer 
 tiff, by inserting the right name, upon a judge's summons founded on an affidavit of ""' to l"* 
 the right name ; and in case such summons shall bo discharged, the costs of such ap- ^jj^^jg, 
 plication shall be paid by the party applying, if the judge shall think fit. ment. 
 
 XII. And be it further enacted, that in all actions upon bills of exchange or prom- t_ji:„i. -. 
 
 issory notes, or other written instruments, any of the parties to which are designated n^meg 
 
 by the initial letter or letters or some contraction of the christian or first name or may be 
 
 names, it shall be sufficient in every affidavit to hold to bail, and in the process or in some 
 
 declaration, to designate each person by the same initial letter or letters or contraction cases. 
 
 of the christian or first name or names instead of stating the christian or first name or ,^, 
 
 • r 11 Wager of 
 
 names m full. law to be 
 
 XIII. And be it further enacted, that no wager of law shall be hereafter al- abolished, 
 lowed. Action of 
 
 XIV. And be it further enacted, that an action of debt on simple contract debt on 
 
 shall be maintainable in any Court of common law against any executor or ad- simple 
 
 . . . , •' o J contract, 
 
 ministrator. 
 
 XV. And whereas it is expedient to lessen the expense of the proof of written or ^'"'?'",*'' 
 printed documents, or copies thereof, on the trial of causes ; be it further enacted, jg^j^alie™ 
 that it shall and may be lawful for the said judges, or any such eight or more of regula- 
 them as aforesaid, at any time within five years after this Act shall take effect, to tions as to 
 make regulations by general rules or orders, from time to time, in term or in vaca- tl»« admia- 
 tion, touching the voluntary admission, upon an application for that purpose at a rea- ^'°^,g_ 
 sonable time before the trial, of one party to the other of all such written or printed ^toouments. 
 documents, or copies of documents, as are intended to be offered in evidence on the 
 
 said trial by the party requiring such admission, and touching the inspection thereof 
 before such admission is made, and touching the costs which may be incurred by the 
 proof of such documents or copies on the trial of the cause, in case of the omitting to 
 apply for such admission, or the not producing of such documents or copies for the 
 purpose of obtaining admission thereof, or of the refusal to make such admission, as 
 the case may be, and as to the said judges shall seem meet ; and all such rules and 
 orders shall be binding and obligatory in all Courts of common law, and of the like 
 force as if the provisions therein contained had been expressly enacted, by' par- 
 liament. 
 
 XVI. And whereas, it would also lessen the expense of the trials and prevent de- Writs of 
 
 ^ lay if such writs of inquiry as hereinafter mentioned were executed, and such issues ^„'j^'^^j,g 
 as hereinafter mentioned were tried, before the sheriff of the county where the venue statute 8 & 
 is laid ; be it therefore enacted, that all writs issued *under and by virtue of the 9 will. 3, 
 statute passed in session of parliament held in the eighth and ninth years of the reign c. 11, to be 
 of King William the Third, intituled "An Act for the better preventing frivolous and ^^^^''^g'j^g 
 vexatious Suits," shall, unless the Court where such action is pending, or a judge of sj,e°;ff^ 
 one of the said superior Courts, . shall otherwise order, direct the sheriff of the county unless' 
 where the action shall be brought to summon a jury to appear before such sheriff, in- otherwise 
 stead of the justices or justice of assize or nisi prius of that county, to inquire of the ordered. 
 truth of the breaches suggested, and assess the damages that the plaintiff shall have [ *718 ] 
 sustained thereby, and shall command the said sheriff to make return_ thereof to the 
 Court from whence the same shall issue atatday certain, in term or in vacation, in 
 such writ to be mentioned ; and such proeeWings shall be had after the return of ^^^^^ ^ 
 such writ as are in the said statutes in that behalf mentioned, in like manner as if j;j.j2t ^. 
 such writ had been executed before a justice of assize or nisi prius. sues join- 
 
 XVII. And be it further enacted, that in any action depending in any of the said ed in oer- 
 superior Courts for any debt on demand in which the sum sought to be recovered, J?^^*^. 
 and indorsed «n the writ of summons, shall not exceed twenty pounds, it shall be ^^.j^^ ^^ 
 lawful ior the Court in such suit shall be depending, or any judge of any of the said fore the 
 Courts, if such court or judge shall be satisfied that the trial will not involve any sheriff or 
 difficult question of fact or law, and such Court or judge shall think fit so to do, to any judge. 
 
718 OP STATtTTES. 
 
 3 & 4 W. order and direct that the issue or issues joined shall be tried before the sheriff of lie 
 4, 0. 42. county where the action is brought, or any judge of any Court of record for the re- 
 Upon the covery of debt in such county, and for that purpose a writ shall issue directed to such 
 return of a, sheriff, commanding him to try such issue or issues, by a jury to be summoned by 
 ■writ of m- jjjuj^ ^jj^ ^ return such writ, with the finding of the jury thereon indorsed, at a day 
 trial of is- certain, in term or in vacation, to be named in such writ; and thereupon such sheriff 
 sues, or judge shall summon a jury, and shall proceed to try such issue or issues, 
 
 judgment XVIII. ,And be it further enacted, that at the return of any such writ of inquiry, 
 to be sign- qj, ^j-j^ f^j. ^.jjg tj.jj^j gf g^g]^ jgg^g qj. jggygg aforesaid, costs shall be taxed, judgment 
 
 fkfi Tin iPQQ ^ V cj 
 
 ^g ' signed, and execution issued forthwith, unless the sheriff or his deputy before whom 
 
 Sheriff, as such writ of inq[uiry may be executed, or such sheriff, deputy or judge, before whom 
 to suoh is- such trial shall be had, shall certify under his hand upon such writ that judgment 
 sues, to ought not to be signed until the defendant shall have had an opportunity to apply to 
 like power *^^ Court for a new inc[uiry or trial, or a judge of any of the said Courts shall think fit 
 as judges to order that judgment or execution shall be stayed till a day to be named in such or- 
 at nisi der; and the verdict of such jury on the trial of such issue or issues shall be as val- 
 prius. ;,j ^nd of the like force as a verdict of a jury at nisi prius ; and the sheriff or his de- 
 
 puty, or judge, presiding at the trial of such issue or issues, shall have the like powers 
 with respect to amendment on such trial as are hereinafter given to judges at 
 nisi prius. 
 Provisions XIX. Provided also, that all and everv the provisions contained in the statute 
 01 1 vv. 4, jjjacle and passed in the first year of the reign of his present Majesty, intituled " An 
 tend to * ■^''' ^°^ *^® more speedy Judgment and Execution in Actions brought in his Majes- 
 suoh writs ty's Courts of Law at Westminster, and in the Court of Common Pleas of the County 
 of inquiry • Palatine of Lancaster, and for amending the Law as to judgment on a Cognovit Ac- 
 and issues, tionem in Cases of Bankruptcy," shall, so far as the same are applicable thereto, be 
 extended and applied to judgments and executions upon such writs of inquu-y 
 and writs for the trial of issues, in like manner as if the same wej:e expressly re-enact- 
 ed herein. 
 Sheriffs to -^■^' -^"^^ ^^ i* further enacted, that from and after the first day of June, one 
 name dep- thousand eight hundred and thirty -three, the sheriff of each county in England and 
 utiea to be Wales shall severally name a sufficient deputy, who shall be resident or have an of- 
 resident m g^g ^jthin one mile from the Inner Temple Hall, for the receipt of writs, granting 
 warrants thereon, making returns thereto, and accepting of all rules and orders to be 
 made on or touching the execution of any process or writ to be directed to such 
 sheriff. 
 r *719 1 *XXI. And be it further enacted, that it shall be lawful for the defendant in all 
 Defendant personal actions, (except actions for assault and battery, false imprisonment, libel, 
 to be al- slander, malicious arrest or prosecution, criminal conversation, or debauching of the 
 lowed to , plaintiff's daughter or servant,) by leave of any of the said superior Courts where 
 pay mon- g^^j^ action is pending, or a judge of any of the said superior Courts, to pay into 
 Court in Court a sum of money by way of compensation or amends, in such manner and un- 
 certain ao- der such regulations as to the payment of costs and the form of pleadings as the said 
 tions by judges, or such eight or more of them as aforesaid, shall, by any rules or orders bj 
 judge's or- \j^q^ (^ be from time to time made, order and direct. 
 
 XXII. And whereas unnecessary delay and expense is sometimes occasioned'by 
 Power to *^® ^™^ °^ loaaX actions in the county where the cause of action has arisen ; be it there- 
 direct lo- fore enacted, that in any action depending in any of the said superior Courts, the 
 cal actions venue in which is by law local, the Court in which such action shall be depending, 
 to be tried or any judge of any of the said Courts, may, on the application of either party, or- 
 coimtv ^^^ ^®™® *° ^^ tried, or writ of inquiry to be executed, in any other county or 
 place than that in which the venue is kid ; and for that purpose any such Court or 
 Judge may order a suggestion to be entered on the record, that the trial may be more 
 conveniently had, or writ of inquiry executed, in the county or place where the same 
 is ordered to take place. 
 
 XXni. And whereas great expense is often incurred, and delay or failure of jus- 
 tice takes place, at trials, by reason of variances as to some particular or particulars 
 
OP STATUTES. 719 
 
 ! proof and the record, or setting forth on the record or document on which 3 & 4 W. 
 lad, of contracts, customs, prescriptions, names, and other matters or cir- » "■ * • 
 
 between the 
 
 the trial is had, of contracts, customs, prescriptions, 
 
 cumstances not material to the merits of the case and by the mis-statement of which Allowing 
 the opposite party cannot have been prejudiced, and the same cannot in any case be "'"^^I 
 amended at the trial, except where the variance is between any matter in writing or jjg ^j^^^ 
 in print produced in evidence and the record : and whereas it is expedient to allow in the reo- 
 such amendments as hereinafter mentioned to be made on the trial of the ord in oer- 
 oause ; be it therefore enacted, that it shall be lawful for any Court of Kecord, hold- t"-™ oases, 
 ing plea in civil actions, or any judge sitting at nisi prius, if such Court or judge shall 
 see fit so to do, to cause the record, writ or document on which any trial may be 
 pending before any such Court or judge, in any civU action, or in any information in 
 the nature of a quo warranto, or proceedings on a marhdamus, when any variance 
 shall appear between the proof and the recital or setting forth on the record, writ, or 
 document on which the trial is proceeding, of any contract, custom, prescription, 
 name, or other matter, in any particular or particulars in the judgment of such Court 
 or judge not material to the merits of the case, and by which the opposite party can- 
 not have been prejudiced in the conduct of his action, prosecution, or defense, to be 
 forthwith amended by some officer of the Court or otherwise, both in the part of the 
 pleadings where such variance occurs, and in every other part of the pleadings 
 which it may become necessary to amend, on such terms as to payment of costs to 
 the other party, or postponing the trial to be had before the same or another jury, or 
 both payment of costs and postponement, as such Court or judge shall think reason- 
 able ; and in case such variance shall be in some particular or particulars in the 
 judgment of such Court or judge not material to the merits of the case, but such as 
 that the opposite party may have been prejudiced thereby in the conduct of his ac- 
 tion, prosecution, or defense, then such Court or judge shall have power to cause the 
 same to be amended, upon payment of costs to the other party, and withdrawing the 
 record or postponing the trial as aforesaid, as such Court or judge shall think reason- 
 able ; and after any such amendment the trial shall proceed, in case the same shall 
 be proceeded with, in the same manner in aU respects, both with respect to the 
 liability of witnesses to be indicted for perjury, and otherwise, as if no such variance 
 had appeared ; and in case such trial shall be had at nisi prius or by virtue of such 
 writ as aforesaid, the order for the amendment shall be indorsed on the postea or the 
 writ, *as the case may be, and returned together with the record or writ, and there- [ *720 ] 
 upon such papers, rolls, and other records of the Court from which such record or 
 writ issued, as it may be necessary to amend, shall be amended accordingly ; and in 
 case the trial shall be had in any Court of Kecord, then the order for amendment 
 shall be entered on the roll or other document upon which the trial shall be had ; 
 provided that it shall be lawful for any party who is dissatisfied with the decision of 
 such judge at nisi prius, sheriff, or other officer, respecting his allowance of any such 
 amendment, to apply to the Court from which such record or writ issued for a new 
 trial upon that ground, and in case any such Court shall think such amendment im- 
 proper, a new trial shall be granted accordingly, on such terms as the Court shall 
 think fit, or the Court shall make such other order as to them may seem meet. 
 
 XXIV. And be it further enacted, that the said Court or judge shall and may, if Po^er for 
 they or he think fit, in all such cases of variance, instead of causing the record or ^^x^^ 
 document to be amended as aforesaid, direct the jury to find the fact or facts accor- to direct 
 ding to the evidence, and thereupon such finding shall be stated on such record or the facts 
 document, and notwithstanding the finding on the issue joined, the said Court or the *« be 
 Court from which the record has issued shall, if they shall think the said variance ^^^ *P*" 
 immaterial to the merits of the case, and the mis-statement such as could not have 
 prejudiced the opposite party in the conduct of the action or defence, give judgment 
 according to the very right and judgment of the case. 
 
 XXV. And be it further enacted, that it shall be lawful for the parties in any ae- Power to 
 tion or information, after issue joined, by consent and by order of any of the judges ''***. * 
 
 of the said superior Court, to state the facts of the case, in the form of a special case, ofge'^iih. 
 for the opinioQ of the Court, and to agree that a judgment shall be eiitered for the plain- out pro- 
 
720 
 
 APPENDIX. 
 
 3 &4 W. 
 4, c. 42. 
 
 oeeding to 
 trial. 
 
 Witnesses 
 interested 
 solely on 
 account ot 
 the ver- 
 dict to be 
 admissi- 
 ble. 
 
 Directions 
 to indorse 
 the name 
 of the wit- 
 ness on 
 the record. 
 
 Jury em- 
 powered 
 to allow 
 interest 
 upon 
 debts. 
 
 [ *721 J 
 
 In certain 
 actions the 
 jury may 
 give dam- 
 ages in the 
 nature of 
 interest. 
 
 Interest to 
 be allow- 
 ed on all 
 ■writs of 
 error for 
 the time 
 that exe- 
 cution has 
 been de- 
 
 Executors 
 suing in 
 right of 
 the testa- 
 tor to pay 
 costs. 
 
 One or 
 
 more of 
 several 
 defend- 
 ants hav- 
 ing a nolle 
 prosequi 
 or a ver- 
 dict shall 
 have costs. 
 
 tiff or defendant, by confession or ot nolle prosequi, imw.eiia,t&ly after the decision 
 of the case, or otherwise as the Court may think fit; and judgment shall be entered 
 accordingly. 
 
 XXVI. And in order to render the rejection of -witnesses on the ground of inter- 
 est less frequent, be it further enacted, that if any witness shall be objected to as in- 
 competent on the ground that the verdict or judgment in the action on which it shall 
 be proposed to examine him would be admissible in evidence for or against him, 
 such witnesses shall nevertheless be examined, but in that case a verdict or judgment 
 in that action in favor of the party on whose behalf he shall have been examined 
 shall not be admissible in evidence for Mm or any one claiming under him, nor 
 shall a verdict or judgment against the party on whose behalf he shall have been 
 examined be admissible in evidence against him or any one claiming under him. 
 
 XXYII. And be it farther enacted, that the name of every witness objected to as 
 incompetent on the ground that such verdict or judgment would be admissible in evi- 
 dence for or against him, shall at the trial be endorsed on the record or document on 
 which the trial shall be had, together with the name of the party on whose behalf he 
 was examined, by some officer of the Court, at the request of either party, and shall 
 be afterwards entered on the record of the judgment ; and such endorsement or en- 
 try shall be sufficient evidence that such witness was examined in any subsequent 
 proceeding in which the verdict or judgment shall be offered in evidence. 
 
 XXVIII. And be it further enacted, that upon all debts or sums certain, paya- 
 ble at a certain time or 'otherwise, the jury on the trial of any issue, or on any in- 
 quisition of damages, may, if they shall think fit, allow interest to the creditor at a 
 rate not exceeding the current rate of interest from the time when such debts or 
 sums certain were payable, if such debts or sums be payable by virtue of some writ- 
 ten instrument at a certain time, or if payable otherwise, then from the time when 
 demand of payment shall have been made in writing, so as such demand shall 
 give notice to the debtor that interest will be claimed from the date of such demand 
 until the term of payment ; provided that interest shall be payable in all cases in 
 which it is now payable by law. 
 
 *XXIX. And be it further enacted, that the jury on the trial of any issue, or on 
 any inquisition of damages, may, if they shall think fit, give damages in the nature 
 of interest, over and above the value of the goods at the time of the conversion or 
 seizure, in all actions of trover or trespass de bonis asportatis, and over and above 
 the money recoverable in all actions on policies of assurance made after the passing 
 of this Act. 
 
 XXX. And be it further enacted, that if any person shall sue out any writ of er- 
 ror upon any judgment whatsoever given in any Court in any action 'personal, and 
 the Court of error shall give judgment for the defendant thereon, then interest shall 
 be allowed by the Court of error for such time as execution has been delayed by such 
 writ of error, for the delaying thereof. 
 
 XXXI. And be it further enacted, that in every action brought by any executor 
 or administrator in right of the testator or intestate, such executor or administrator 
 shall, unless the Court in which such action is brought, or a judge of any of the said 
 superior Courts shall otherwise order, be liable to pay costs to the defendant in case 
 of being nonsuited or a verdict passing against the plaintiff, and in all other cases in 
 which he would be liable if such plaintiff were suing in his own right upon a cause 
 of action accruing to himself ; and the defendant shall have judgment for costs, and 
 they shall be recovered in like manner. 
 
 XXXII. And be it further enacted, that where several persons shall be made de- 
 fendants in any personal action, and any one or mOre of them shall have a noUe 
 prosequi entered as to hira or them, or upon the trial of such action shall have a 
 verliet pass for him or them, every such person shall have judgment for and recover 
 his reasonable costs, unless, in the case of a trial, the judge before whom such causa 
 shall be tried shall certify upon the record under his hand, that there was a reasona- 
 ble cause for making such person a defendant in such action. 
 
 XXXIII. And be it further enacted, that where any nolle prosequi shall have 
 
OP STATUTES. 721 
 
 been entered upon any count, or as to part of any declaration, the defendant shall 3 & 4 W. 
 be entitled to, and have judgment for, and recover his reasonable costs in that be- *• o- 42. 
 half. Where 
 
 XXXIV. And be it further enacted, that in all writs of scire facias the plaintiflF 'nolle pros- 
 obtaining ^judgment or an award of execution shall recover his costs of suit upon a '*'" ^uter- 
 judgment by default as well as upon a judgment after plea pleaded or demurrer ^ cuunt, 
 joined ; and that where judgment shall be given either for or against a plaintiflF or &c. 
 demandant, or for or against a defendant or tenant upon any demurrer joined in any Plaintiff 
 action whatever, the party in whose favor such judgment shall be given shall also '° scire fn- 
 have judgment to recover his costs in that behalf. pk?n«ff or 
 
 XXXV. And whereas it is provided in and by a statute passed in the sixth year je'fendant 
 of the reign of his late Majesty, intituled "An Act for consolidating and amending on demur- 
 the Law relative to Jurors and Juries," that the person or party who shall apply for rer, to 
 
 a special jury shall pay the fees for striking such jury, and all the expenses occasioned ^ ^^ *"l^'^ 
 by the trial of the cause by the same, and shall not have any further or other allow- special iu- 
 ancB for the same, upon taxation of costs, than such person or party would be entitled ries in 
 unto in case the cause had been tried by a common jury, unless the jury before whom case of a, 
 the cause is tried shall, immediately after the verdict, certify under his hand, upon ""p^V'' 
 the back of the record, that the same was a cause proper to be tried by a special jury : 59 ' 
 and whereas the said provision does not apply to the cause in which the plaintiff has 
 been nonsuited, and it is expedient that the judge should have such power of certify- 
 ing as well when a plaintiflF is nonsuited as when he has a verdict against him ; be it 
 therefore enacted, that the said provisions of the said last-mentioned act of parlia- 
 ment, and everything therein contained, shall apply to cases in which the plaintiff 
 shall be nonsuited as well as to cases in which a verdict shall pass against him. 
 
 XXXVI. And whereas it would tend to the better dispatch of business, and would °^"° 
 be more convenient, and better assimilate the practice and promote uniiormity in the lations as 
 allowance of costs, if the officers on the plea side of *the Courts of King's Bench and to the ofS- 
 Exchequer, and the officers of the Court of Common Pleas at Westminster, who now <=ers of 
 perform the duties of taxing costs, were to be empowered to lay costs which have arisen p*° V j 
 or may arise in each of the said Courts indiscriminately ; be it therefore enacted, that -Westmin- 
 it shall be lawful for the judges of the said Courts, or such eight or more of them ster tax- 
 aforesaid, by any rule or order to be from tinae (0 time made in term or vacation, to ing costs. 
 make such regulations for the taxation of costs by any of the said officers of [ *722 J 
 the said Courts indiscriminately as to them may seem expedient, although 
 
 such costs may not have arisen in respect of business done in the Court to which such _ 
 officer belongs, and to appoint some convenient place in which the business of taxa- ^j. i^^g^v 
 tion shall be transacted for all the said Courts, and to alter the same when and as it may dis- 
 may seem to them expedient, train for 
 
 XXXVII. And be it further enacted, that it shall be lawful for the executors or ^y^^l^^ ■" 
 andministrators of any lessor or landlord to distrain upon the lands demised for ^5'^^' ^' 
 any term, or at will, for the arrearages of rent due to such lessor or landlord in his Arrears 
 lifetime, in like manner as such lessor or landlord might have done in his lifetime. may be 
 
 XXXVIII. And be it further enacted, that such arrearages may be distrained for distrained 
 after the end or determination of such term or lease at will, in the same manner as if ?'' ^""'° 
 snob term or lease had not been ended or determined ; provided that such distress ^fter de- 
 be made within the space of six calendar months after the determination of such term termina- 
 or lease, and during the continuance of the possession of the tenant from whom such tion of 
 arrears become due : provided also, that all and every the powers and provisions in ^™* . 
 the several statutes made relating to distresses for rent shall be applicable to the dis- ^^^^ to ar- 
 tresaes so made as aforesaid. bitration 
 
 XXXIX. And whereas it is expedient to render references to arbitration more ef- by rule of 
 fcctual ; be it further enacted, that the power and authority of any arbitrator or um- Court, &c. 
 pire appointed by or in pursuance of any rule of Court, or judge's order, or order of ""^ *° ?? 
 nisi prius, in any action now brought or which shall be hereafter brought, or by or without 
 
 in pursuance of any submission to reference containing an agreement that such sub- leave of 
 mission shall be made a rule of any of his majesty's Courts of Record, shall not be t'le Court, 
 
722 
 
 APPENDIX. 
 
 8 & 4 W. 
 4, c. 42. 
 
 Power to 
 compel 
 the 
 
 attend- 
 ance of 
 witnesses. 
 
 [ *723 ] 
 
 Power for 
 the arbi- 
 trators un- 
 der a rule 
 of Court to 
 administer 
 oath. 
 
 Power of 
 granting 
 commis- 
 sions to 
 take affi- 
 davits to 
 extend to 
 Scotland 
 and Ire- 
 land. 
 
 revocable by any party to such reference without the leave of the Court by which 
 such rule or order shall be made, or which shall be mentioned in such submission, or 
 by leave of a judge ; and the arbitrator or umpire shall and may and is hereby re- 
 quired to proceed with reference nothwithstanding any such revocation, and to make 
 such award, although the person making such revocation shall not afterwards attend 
 the reference ; and that the Court or any judge thereof may from time to time en-, 
 large the terra for any such arbitrator making his award. 
 
 XL. And be it further enacted, that when any reference shall have been made by 
 any such rule or order as aforesaid, or by any submission contained in such agree- 
 ment as aforesaid, it shall be lawful for the Court by which such rule or order shall 
 be made, or which shall be mentioned in such agreement, or for any judge, by rule 
 or order to be made for that purpose, to command the attendance and examination of 
 any person to be named, or the production of any documents to be mentioned in such 
 rule or order ; and the disobedieflce to any such rule or order shall be deemed a 
 contempt of Court, if, in addition to the service of such rule or order, an appoint- 
 ment of the time and place of attendance in obedience thereto, signed by one at least 
 of the arbitrators, or by umpire, before whom the attendance is required, shall also 
 be served either together with or after the service of such rule or order : provided 
 always, that every person whose attendance shall be so required shall be entitled to 
 the like conduct-money, and the payment of expenses and for loss of time, as for 
 and upon attendance at any trial : provided also, that the application made to such 
 Court or judge for such rule or order shall set forth the county where such witness 
 is residing at the time, or satisfy such Court or judge that such person cannot he 
 found : provided also, that no person shall be compelled to produce, under any such 
 rule or order, any writing or other document that he would not be compelled to pro- 
 duce *at a trial, or to attend at more than two consecutive days, to be named in such 
 order. 
 
 XLI. And be it further enacted, that when in any rule or order of reference, or 
 in any submission to arbitration containing an agreement that the submission shall 
 be made a rule of Court, it shall be ordered or agreed that the witnesses, upon such 
 reference shall be examined upo'n oath, it shall be lawful for the arbitrator or umpire, 
 or any one arbitrator, and he or they are hereby authorized and required, so to ad- 
 minister an oath to such witnesses, or to take their affirmation in cases where affir- 
 mation is allowed by law instead of oath : and if upon such oath or affirmation any 
 person making the same shall wilfully and corruptly give any false evidence, every 
 person offending shall be deemed and taken to be guilty of perjury, and shall be pros- 
 ecuted and punished accordingly. . 
 
 XLII. And whereas it would be convenient if the power of the superior courts of 
 common law and equity at Westminster to grant commissions for taking affidavits to 
 be used in the said Courts respectively should be extended ; be it further enacted by 
 the authority aforesaid, that the lord high chancellor, lord keeper or lords commis- 
 sioners of the gi'eat seal, the said Courts of law, and the several judges of the same, 
 shall have such and the same powers for granting commissions for taking and receiv- 
 ing affidavits in Scotland and Ireland, to be used and read in the said Courts re- 
 spectively, as they now have in all and every the shires and counties within the 
 kingdom of England, and dominion of Wales, and town of Berwick-upon-Tweed, and 
 in the Isle of Man, by virtue of the statutes now in force ; and that all and every 
 person and persons wilfully swearing or affirming falsely in any affidavit to be made 
 before any person or persons who shall be so empowered to take affidavits under the 
 authority aforesaid shall be deemed guilty of perjury, and shall incur and be liable 
 to the same pains and penalties as if such person had wilfully sworn or affirmed 
 falsely in the open Court in which such affidavit shall be entitled, and be liable to 
 be prosecuted for such perjury in any Court of competent jurisdiction in that part of 
 the United Kingdom in which such offence shall have been committed, or in that 
 part of the United Kingdom in which such person shall be apprehended on such a 
 charge. 
 
 XLIII. And whereas the observance of holidays in the swd Courts of common 
 
OP STATUTES. 723 
 
 law during term time, and in the officers belonging to the same, on the several days 5 & 6 
 on wtich holidays are now kept, is very inconvenient, and tends to delay in the ad- Edw. 6, e. 
 ministration of justice ; be it therefore enacted by the authority aforesaid, that none -p^^ ^Y^^ 
 of the several days mentioned in the statute passed in the sessions of parliament abolition 
 holden in the fifth and sixth years of the reign of King Edward the Sixth, intituled of certain 
 " An Act for'keeping Holidays and Fasting Days," shallbe observed or kept in the Widays. 
 said Courts, or in the several offices belonging thereto, except Sundays, the day of 
 the Nativity of our Lord and the three following days, and Monday and Tuesday in 
 Easter week. 
 
 XLIV. And be it further enacted, that this statute shall commence and take ef- Com- 
 fect on the first day of June one thousand eight hundred and thirty-three. mence- 
 
 XLV. And be it further enacted, that nothing in this Act shall extend to that ^g(._ 
 part of the United Kingdom called Ireland, or that part of the United Kingdom Not to ex- 
 called Scotland, except in the cases hereinbefore specially mentioned, tend to 
 
 Ireland or 
 Scotland. 
 
 KEGUL^ GENEEALES. 
 
 OfKuies 
 
 Trinity Term. 1 William IV. 1831. R^g^ Tn! 
 
 Trin. T. 1 
 Whereas declarations in actions upon bills of exchange, promissory notes, and the ^- ^• 
 counts usually called the common counts, occasion unnecessary expense to parties 
 by reason of their length, and the same may be drawn in a more concise form : Now ^o™sof 
 for the prevention of such expense, it is ordered, *that if any declaration in assump- ijnng™' 
 sit hereafter filed or delivered, and to which the plaintiff shall not be entitled to a r *724 1 
 plea as of this term, being for any of the demands mentioned in the schedule of forms jnajsumxi- 
 and directions annexed to this order, or demand of a like nature, shall exceed in sit. 
 length such of the said forms set forth or directed in the said schedule as may be 
 applicable to the case ; or if any declaration in debt to be so filed or delivered for In debt. 
 similar causes of action, and fftr which the action of assumpsit would lie, shall exceed 
 such length, no costs of the excess shall be allowed to tho plaintiff if he succeed in 
 the cause ; and such costs of the excess as have been incurred by the defendant shall 
 be taxed aad^ allowed to the defendant, and be deducted from the costs allowed to the 
 plaintiff. And it is further ordered, that on the taxation of costs as between attor- ^ 
 ney and client, no costs shall be allowed to the attorney in respect of any such ex- 
 cess of length ; and in case any costs shaU be payable by the plaintiff to the defend- 
 ant on account of such excess, the amount thereof shall be deducted from the amount 
 of the attorney's bill. 
 
 TbnTEKDEN. J. VATJQHAIf. 
 
 N. 0. TiNDAL. J. Parke. 
 Ltndhurst. W. Holland. 
 
 J. BaYLEY. J. B. BOSANQUET. 
 
 J. A. Parke. W. B. Taunton. 
 
 J. LiTTLEDALE. E. H. AlDERSON. 
 
 S. G-aselbb. J. Patterson. 
 
 Schedule op Forms and Directions. 
 
 Count on 
 
 For that whereas the defendant, on the day of , in the year of our Lord sory°™tg' 
 
 , at London, [or in the county of ] made his promissory note in wiit- against 
 
 ing, and delivered the same to the plaintiff, and thereby promised to pay the plain- the maker, 
 
 tiff £ , days [weeks or months] after the date thereof, [or as the by payee 
 
 fact nwy be], which period has now elapsed; [or if the note be payable to A. B^ Sbra'" as 
 and then and there delivered the same to -4. ^., and thereby promise to pay to the' the o^e 
 
 said A. B. or order £ , days [weeks or months] after the date thereof [at may be 
 
 Vol. I. 91 
 
724 
 
 APPENDIX 
 
 Gen. Trin. 
 T. 1 W. 4. 
 
 Count on 
 a promis- 
 sory note 
 against 
 payee by 
 indorsee. 
 
 as the fact may fe], which period has now elapsed : and the said A. B. then and 
 there indorsed the same to the plaintiff, whereof the defendant then and there had no- 
 tice, and then and there, in consideration of the premises, promised to pay the amount 
 of the said note to the plaintiff, according to the tenor and effect thereof. 
 
 Whereas one O. D. on the day of , in the year of our Lord , at 
 
 London \or in the county of ], made his promissory note in' writing, and 
 
 thereby promised to pay the defendant or order £- 
 
 days [weeks or 
 
 months] after the date thereof, \or as the fact may be] which period has now 
 elapsed ; and the defendant then and there indorsed the same to the plaintiff, [or, 
 and the defendants then and there indorsed the same to X. T., and the said X. T. 
 then and there indorsed the same to the plaintiff;] and the said 0. D. did not pay 
 the amount thereof, although the same was there presented to him on the day when 
 it became due ; of all which the defendant then and there had due notice. 
 
 Whereas one C. D. on at London \or in the county of ] , made his 
 
 Count on ^ . _ 
 
 a promis- promissory note in writing, and thereby promised to pay X. Y. or order £■ 
 soryuote _-. ._-._.._ ,_ 
 
 against in- 
 dorser by 
 indorsee. 
 
 [ *725 ] 
 
 Count on 
 in inland 
 bill of ex- 
 change 
 against 
 the except- 
 or by the 
 drawer 
 being also 
 payee. 
 Count on 
 an inland 
 bill of ex- 
 change 
 against 
 the accep- 
 tor by the 
 drawer, 
 not being 
 the payee. 
 
 Count on 
 an inland 
 bill of ex- 
 change 
 against 
 the accep- 
 tor by in- 
 dorsee. 
 
 Count on 
 an inland 
 bill of ex- 
 change 
 against 
 the accep- 
 tor by the 
 payee. 
 
 ■ days [wepks or months] after the date thereof, [or as the fact may be], which 
 period has now elapsed ; and then and there delivered the said note to the said X. 
 T., and the said X. Y. then and there indorsed the same to the defend- 
 ant, and the defendant then and there indorsed the same to the plaintiff; [or, 
 and the defendant then and there indorsed the same to Q. i?., and the said Q. £., 
 then and there indorsed the same to the plaintiff;] and the said G. D. did not pay 
 the amount thereof although the same was there presented to him on the day when it 
 became due ; of all which the defendant had then and there due notice. 
 
 Whereas the plaintiff on , at London [or in the county of ], made his 
 
 bill of exchange in writing and directed the same to the defendant, and thereby re 
 
 quired the defendant to pay to the plaintiff ^-^ , days [weeks or months] 
 
 after the date [or sight] thereof, which period has now elapsed ; and the defendant 
 then and there accepted the said bill, and promised the plaintiff to pay the same, ac- 
 cording to the tenor and effect thereof, and of his said acceptance thereof, but did 
 not pay the same when due. 
 
 Whereas the plaintiff on , at London [or in the county of ], made his 
 
 bill of exchange in writing and directed the same to the defendant, and thereof re- 
 quired the defendant to pay to 0. P. or order £ , days [weeks or months] 
 
 after the date [or sight] thereof, which period has now elapsed ; and then and there 
 delivered the same to the said 0. P., and the said defendant then and there accept- 
 ed the same, and promised the plaintiff to pay the same according to the tenor and 
 effect thereof, and of his acceptance thereof; yet he did not pay the amount thereof, 
 although the said bill was there presented to him on the day when it beHome due, 
 and thereupon the same was then and there returned to the plaintiff; of all which 
 the defendant then and there had notice. 
 
 Whereas one E. F. on , at London [or in the county of ], made his 
 
 bill of exchange in writing, and directed the same to the defendant, and thereby re- 
 quired the defendant to pay to the said E. F. [or to H. G.] or order £, . — 
 
 days [weeks or months] after date [or sight] thereof, which period has now elapsed, 
 and the defendant then and there accepted the said bill, and the said E. F. [or the 
 said H. G.] then and there indorsed the same to the said plaintiff; [or and the said 
 E. F., or, the said H. G. then and there indorsed the same to E. J and the said K. J. 
 then and there indorsed the same to the plaintiff,] of all which the defendant then 
 and there had due notice, and then and there promised the plaintiff to pay the amount 
 thereof according to the tenor and effect thereof, and of his acceptance thereof. 
 
 Whereas one E. F. on at London, [or in the county of ], made his bill 
 
 of exchange in writing and directed the same to the defendant, and thereby required 
 
 the defendant to pay to the plaintiff i£ , days [weeks or months] after the 
 
 sight [or date] thereof which period has now elapsed, and the defendant then and 
 there accepted the same, and promised the plaintiff to pay the same according to the 
 tenor and effect thereof, and of hw acceptance thereof 
 
 Whereas the defendant on , at London [or in the county of ,] made his 
 
 bill jf exchange in writing and directed the same to J. K., and thereby required 
 
OP STATUTES. 725 
 
 the said J. K. to pay to the plaintiff £ , days [weeks or months] after the Beg. Gen. 
 
 date*[or sight] thereof, and then and there delivered the same to the said plaintiff, ^in- T. 1 
 and the same was then and there presented to the said J. K. for acceptance, and 
 the said J. K. then and there refused to accept the same ; all of which the de- Count on 
 fondant then and there had due notice. an inland 
 
 Whereas the defendant on , at London, [or in the county of ], made his exohanee 
 
 bill of exchange in writing, and directed the same \a J. K , and thereby required the against the 
 
 said J. K. to pay to the order of the said defendant £ , days [weeks or drawer by 
 
 months] after the sight \or date] thereof, and the said defendant then and there in- payee on 
 dorsed the same to the plaintiff, [or, and the said defendant then and there indorsed °™'*™ep- 
 the same ia L. M. and the said L. M. then and there indorsed the same to the plain- Count on 
 tiff; and the same was.tljen and there presented to the said J. K. for acceptance, an inland 
 and the said J. K. then and there refused to accept the same ; aU of which the de- bill of ex- 
 fendant then and there had due notice. change 
 
 And whereas one N. 0. on , at London \or in the county of ], made j^*™^'bv 
 
 his bill of exchange in writing and directed the same to P. Q. and thereby required indorsee 
 
 the said P. Q. to pay to his order £ , days [weeks or months] after the date on non-ao- 
 
 [or sight] thereof, and the said ]!f. O. then and there indorsed the said bill to the oeptanoe. 
 defendant [or to S. S. and the said E. S. *then a;nd there indorsed the same to the [ *726 ] 
 defendant,] and the defendant then and there indorsed the same to the plaintiff; and Count in 
 the same was then and there presented to the said P- Q. for acceptance, and the bfn'of^ 
 said P. Q then and there refused to accept the same ; of all which the defendant change 
 then and there had due notice. against in- 
 
 Whereas one 21. 0. on , at London [or in the county of ] , made his bill dorser by 
 
 of exchange in writing and directed the same to P. Q., and thereby required the said >°<*o''s«^ 
 
 P. Q. to pay the defendant or order £ , days [weeks or months] after the eeptauoer 
 
 date [or sight] thereof, and then and there delivered the same to the defendant, and Count on 
 the defendant then and there indorsed the said bill to the plaintiff, [or to E. S., and an inland 
 llie said B. S. then and there indorsed the same to the plaintiff,] and the same ^^'^^ °^ *^" 
 was then and there presented to the said P. Q. for acceptance, and the said P. Q. °''*w 
 then and there refused to accept the same ; of all which the defendant then and there pXyee by 
 had due notice. indorsee 
 
 If the declaration be against any party to the bill except the drawee or acceptor, on non-ao- 
 and the bill be payable at any time after date, and the action not brought till the oeptanoe 
 time is expired, it will be necessary to insert, as in the declarations on promissory foJ.'^ijeJi^. 
 notes, immediately after the words denoting the time appointed for payment, the fol- ation on 
 lowing words, viz. : which period has now elapsed, and, instead of averring that bills where 
 the bill was presented to the drawee for acceptance, and that he refused to accept action 
 the same, to allege that the drawee [naming him\ did not pay the said Mil, although '°"S°' 
 the same was there presented to him on the day when it became due. ^f payment 
 
 And if the declaration be against any party except the drawee or acceptor, and the expired, 
 bill be payable at any time after sight, it will be necessary to insert, after the words 1st. On 
 denoting the time appointed for payment, the following words, viz. : and the said ^''j^ P*?" 
 drawee [naming him] then and there saw and accepted the same, and the said \JL^ 
 period has now elapsed, and instead of alleging that the bill was presented for ac- 2d. On 
 ceptance and refused, to allege that the drawee [naming him] did not pay the said bills pay- 
 MU, although the same was presented to him on the day when it became due. aWe after 
 
 If a HFote or Bill be payable at sight, the form of the declaration must be varied ?JSli*- . 
 so as to suit the case, which may be easily done. biUs."*'^" 
 
 Declaration on foreign bills may be drawn according to the principle of these forms, Directions 
 with the necessary variations. for deelar- 
 
 ^^^__ ations on 
 
 bills or 
 „ _, notes pay-t 
 
 Common Counts , able at 
 
 sight. 
 
 Whereas the defendant on , at London [or, in the county of ], was Goods baiv 
 
 indebted to the plaintiff in £ , for the price and value of goods then and there Sa>ne4 
 
726 
 
 APPENDIX. 
 
 Reg. Gen. 
 Trin. X. 1 
 W. 4. 
 
 and sold, 
 or sold 
 and deliv- 
 ered. 
 
 Work and 
 materials. 
 Money 
 lent. 
 Money 
 paid. 
 Money 
 . received. 
 Account 
 stated. 
 General 
 conclusion. 
 
 [ *727 J 
 
 Directions 
 to the gen- 
 eral con- 
 clusion. 
 
 bargained [or, sold] and sold [or, delivered] by the plaintiflf to the defendant, at his 
 request : 
 
 And in £, , for the price and value of work then and there done, and mate- 
 rials for the same provided by the plaintiff for the defendant, at his request : 
 
 And in £ , for money then and there lent by the plaintiff to the defend- 
 ant at his request : 
 
 And in £ , for money then and there paid by the plaintiff for the use of 
 
 the defendant, at his request : 
 
 And in £ , for money then and there received by the defendant for the 
 
 use of the plaintiff: 
 
 And in £ , for money found to be due from the defendant to the plaintiff, 
 
 on an account then and there stated between them. 
 
 And whereas the defendant afterwards, on, &c., in consideration of the premises 
 respectively, then and there promised to pay the said several monies respectively 
 to the plaintiff, on request : Yet he hath disregarded his promises, and hath not paid 
 
 any of the said monies or any part thereof; to the plaintiff's damage of £ , and 
 
 thereupon he brings suit, &c. 
 
 *If the declaration contains one or more counts against the maker of a note or ac- 
 ceptor of a bill of exchange, it will be proper to place them first in the declaration, 
 and then in the general conclusion to say, promised to pay the said last-mentioned 
 several monies respectively. 
 
 REGULiE GENBRALES. 
 
 Justifying 
 at time of 
 putting in 
 bail. 
 
 Form of 
 notice of 
 bail. 
 
 Affidavit 
 of justifica- 
 tion by 
 bail. 
 
 Notice of 
 exception. 
 
 Bail not to 
 be changed 
 without 
 leave of 
 Court or 
 Judge. 
 
 Trinity Tekm. 1 William IV. 1831. 
 
 It is ordered. That a defendant may justify bail at the same time at which they 
 are put in, upon giving four days' notice for that purpose, before eleven o'clock in 
 the morning, and exclusive of Sunday. That if the plaintiff is desirous of time to in- 
 quire after the bail, and shall give one day's notice thereof, as aforesaid, to the de- 
 fendaot, his attorney or agent, as the case may be, before the time appointed for 
 justification, stating therein what further time is required, such time not to exceed 
 three days in the case of town bail, and six days in the case of country bail, then (un- 
 less the Court or a judge shall otherwise order) the time for putting in and justifying 
 bail shall be postponed accordingly, and all proceedings shall be stayed in the mean- 
 time. • 
 
 2. And it is further ordered, that every notice of bail, in addition to the descrip- 
 tions of the bail mention the street or place, and number (if any) where each of the 
 bail resides, and all the streets or places, and numbers (if any), in which each of 
 them has been resident at any time within the last six months, and whether he is a 
 housekeeper or freeholder. 
 
 3. And it is further ordered, that if the notice of bail shall be accompanied by 
 an affidavit of each of the bail according to the form hereto subjoined, and if the 
 plaintiff afterwards accept such bail, he shall if such bail are allowed, pay the costs 
 of justification, and if such bail are rejected, the defendant shall pay the costs of op- 
 position, unless the Court or a judge thereof shall otherwise order. 
 
 4. And it is further ordered, that if the plaintiff shall not give one day's notice 
 of exception to the bail, by whom such affidavit shall have been made, the recogni- 
 zance of such bail may be taken out of Court without other justification than such af- 
 fidavit. 
 
 5. And it is further ordered, that the bail of whom notice shall be given, shall 
 not be changed without leave of the Court or a judge. 
 
 6. And it is further ordered, that with every declaration, if delivered, or with the 
 notice of declaration, if filed, containing counts in Indebitatus Assumpsit, or debt 
 on .simple contract, the plaintiff shall deliver full particulars of his demand under 
 
OP STATUTES, 727 
 
 those counts, where such particulars can he comprised within three folios ; and Seg. Gen, 
 
 W.' i 
 
 wherethe same cannot be comprised within three folios, he shall deliver such a state- ^^'^' • ^ 
 
 ment of the nature of his claim, and the amount of the sum or balance which he 
 claims to be due, as may be comprised within that niimber of folios : And to secure Part'oulars 
 the delivery of particulars in all such cases, it is further ordered, that if any declara- ^^s^ ^^ 
 tion or notice shall be delivered without such particulars, or such statement as afore- mand. 
 said, and a judge shall afterwards order a delivery of particulars, the plaintiff shall Conse- 
 not be allowed any costs in respect of any summons for the purpose of obtaining such q^ence of 
 order, or of the particulars he may afterwards deliver. And that a copy of the par- ° . "^' 
 ticulars of the demand, and also particulars (if any) of the defendant's set-off, shall Copy of 
 be annexed by the plaintiff's attorney to every record at the time it is entered with particulars 
 the judge's marshal (1). of demand, 
 
 7. And it is further ordered, that every declaration, delivered or filed on or be- a°<i of^^*- 
 fore last day of any term, the defendant, whether in or out of any prison, shall be annexed^ to 
 compellable to plead as of such term without being entitled to any imparlance. record. 
 
 8. And it is further enacted, that no judgment of non pros shall be signed for Time for 
 want of a declaration, replication, or other subsequent pleading, until four *days pleaiiing. 
 next after a demand thereof shall have been made in writing upon the plaintiff, his •'"'^Si'ieDt 
 
 . , i j.1. 1 o r r ' of non proa 
 
 attorney or agent, as the case may be. jj,^ not de- 
 
 9. And it is further ordered, that hereafter it shall not be necessary to issue more daring, 
 than two summonses for attendance before a judge upon the same matter ; and the ^o- '"^^^ 
 party taking out such summonses shall be entitled to an order on the return of the r^^^^io -■ 
 second summons, unless cause is shown to the contrary. L ' •^° J 
 
 10. And it is further ordered, that no declaration de bene esse shall be delivered ■'■^° '"™" 
 until the expiration of six days from the service of the process in the case of process only to be 
 which is not bailable, or until the expiration of six days from the time of the arrest necessary 
 in case of bailable process ; and such six days shall be reckoned inclusive of the day ^<"^ attend- 
 of such service or arrest. ^""^ }'^' 
 
 11. And it is further ordered, that declaration in ejectment may be served be- Delivery ' 
 fore the first day of any term, and thereupon the plaintiff shall be entitled to judg- of dcclara- 
 ment against the causal ejector in like manner as upon declarations served before the Won de be- 
 essoign or first general return-day. "^ *^*^* 
 
 12. And is is further ordered, that before taxation of costs, one day's notice shall ^egj'sir^" 
 be given to the opposite party. tjong in 
 
 13. And it is further ordered, that no rule to show cause, or motion shall be re- ejectment 
 quired, in order to obtain a rule to plead several matters, or to make several avow- Notice of 
 ries or congnizanees ; but that such rules shall be drawn up upon a judge's order, pi' j' 
 
 to be made upon a summons, accompanied by a short abstract or statement of the in- several 
 tended pleas, avowries or cognizances. Provided, that no summons or order shall matters by 
 be necessary in the following oases, that is to say, where the plea of non-assumpsit, judge's br- 
 or nil debet, or non detiaet, with or without a plea of tender as to part, a plea of the ?^'^" 
 statute of limitations, set-off, bankruptcy of the defendant, discharge under and in- gasls * 
 solvent act, plene administravit, plene administravit prseter, infancy, and coverture judge's or 
 or any two or more of such pleas shall be pleaded together ; but in all such cases a der un- 
 rule shall be drawn up by the proper oflScer, upon the production of the engrossment necessary, 
 of the pleas, or a draft or copy thereof. 
 
 14. And it is further ordered, that these rules shall take effect on the first day ™" 
 of next Michaelmas term, except the rule as to the service of declarations in eject- ment of 
 ment, which shall take effect from the 25th day of October next. rules. 
 
 Tbntbkden. J. Vaughan. N. C. Tindal. J. Parke. 
 
 Ltndhtjkst. W. Bolland. J. Bayley. J. B. Bosanqitet. 
 
 J. A. Paeke. W. B. Taunton. J. Littledalb. B. H. Aldeeson. 
 
 S. Gaselee. J. Patterson. 
 
 (1) [See 1 Met. & Perk. Dig. Tit. Biu, of Paeticulabs.] 
 
728 
 
 APPENDIX 
 
 Reg. Gen. 
 Trin. T. 1 
 W. 4. 
 
 In the 
 
 Form op Apsidatit. 
 Between, &c. 
 
 Affi'davit 
 of justifi- 
 cation by 
 bail. 
 
 A. B. one of the bail for the above-named defendant, maketh oath and saith, that 
 he is a housekeeper \or freeholder, as the case may be], residing at [describing par- 
 ticularly the street or place, and number, if any,] that he is possessed of property 
 
 to the amount of £ [the amount required by the practice of the Courts,] over 
 
 and above all his just debts ; [if bail in any other action, add " and every other sum 
 for which he is now bail; "] that he is not bail for any defendant except in this ac- 
 tion [or if bail in any other action or actions, add " except for G. D. at the suit of 
 
 U. F. in the court of , in the sum of £ ; for G. K, at the suit of I. K. 
 
 in the court of , in the sum of £ ; " specifying the several actions with the 
 
 Courts in which they are brought, and the sums in which the deponent is bail;'] 
 
 ; [and if bail 
 
 is now bail as afore- 
 
 r *729 1 said,""] consists of [here specify the nature and value of the property, in *respect 
 
 of which the bail proposes to justify as follows : — stock in trade, in his business 
 
 of , carried on by him at , of the value of £ ; of good book 
 
 debts owing to him to the amount of £ ; of furniture in his house, at 
 
 of the value of £ ; of a freehold or leasehold farm, of the value of £ , situate at 
 
 , occupied by : or of a dwelling-house of the value of £ , situate 
 
 at , occupied by ; [or of other property, particularizing each descrip- 
 tion of property, with the value thereof;'] and that the deponent hath for the last 
 
 six months resided at , [describing the place or places of such residence.] 
 
 Sworn, &c. 
 
 that the deponent's property, to the amount of the said sum of £ 
 in any other action or actions, "of all other suras for which he if 
 
 Keg Gen. 
 Mich. T. 3 
 W. 4. 
 
 Writ to 
 contain 
 the name 
 of all the 
 defend- 
 ants in the 
 action. 
 EeeB. 
 
 Day of ser- 
 vice to be 
 indorsed, 
 on writ. 
 
 Day of ex- 
 ecution to 
 be indor- 
 sed on ca- 
 piat. 
 
 Michaelmas Term. 3 William IV. 1832. 
 I. 
 
 It is ordered, that every writ of summons, capias, and detainer, shall contain 
 the names of all the defendants if more than one in the action, and shall not con- 
 tain the name or names of any defendant or defendants in more actions than 
 one. 
 
 2. It is further ordered. That the following fees shall be taken — 
 
 For signing all writs for compelling an appearance, whether of summons, dis- £ «. d. 
 tringas, capias, or detainer, whether the same shall be the first writ, or an 
 alias or pluries writ, and whether the same shall issue into the same coun- 
 ty as the proceeding writ, or into a different county, 2 6 
 
 For sealing the same, . 007 
 
 For entering an appearance for every defendant, 010 
 
 Unless an appearance shall bo entered for more than one defendant by the 
 
 same attorney, and, in that case, for every additional defendant, . . . .004 
 
 3. it is further ordered, that the person serving a writ of summons shall within three 
 days at least, after such service, indorse on such writ the day of the week and month 
 of such service ; otherwise the plaintiff shall not be at liberty to enter an appearance 
 for the defendant according to the statute ; and every affidavit upon which such an 
 appearance shall be entered, shall mention the day on which such indorsement was 
 made. 
 
 4. It is further ordered, that the sheriff) or other officer or person to whom any 
 writ of capias shall be directed, or who shall have the execution and return thereof, 
 shall, within six days, at the latest, after the execution thereof, whether by service or 
 arrest, indorse on such writ the true day of the execution thereof; and, in default, 
 
OP STATUTES. 729 
 
 thereof,, shall be liable, in a summary way, to make such compensation for any dam- ^eg^ G«d. 
 age which may result from his neglect as the Court or a Judge shall direct. ^y ' ^ 
 
 5. It is-further ordered, that Eulo II. of K' T., 1832, shall be applicable to all Ruie'n', 
 writs of summons, distringas, capias, and detainer,. issued under the authority of the h. T. 183.2 
 said act, and to the copy of every such writ. applicable 
 
 6. It is further ordered, that any alias or pluries writ of summons if the plaintiff '<> p^" 
 shall think it desirable, b.e issued into another county and any alias or pluries writ ^k„*.\qji 
 of capias may be directed to the sheriff of any other county ; the plaintiff, in such piuries 
 case upon the alias or pluries writ of summons describing the defdfedant as late of writs may 
 the place of which he was described in the first writ of summons, and upon the alias be direct- 
 or pluries writ of capias referring to the preceding writ or writs as directed to the ed into 
 sheriff to whom they were in fact directed. oountieg. 
 
 7. It is further ordered, that the alias or pluries writ of summons into another Form of 
 county shall be in the following form : Mian or 
 William the Fourth, &c. ?'•""'" 
 
 To O. D., of , in the county of , late of , in the county of ^^™^™ " 
 
 [original county ] _ pluries ca- 
 
 We command you, as before [or often] we have commanded you, &o. [as in the pias. 
 
 writ of summons No. 1, in the schedule of the said act(\ ■^°^ omit- 
 *And that the alias and pluries writ of capias shall be in the following form : — la^Ji-trin- 
 
 WiUiatn the Fourth, &c. „aj with- 
 
 To the Sheriff out fte 
 
 We command you, as heretofore we have comthanded the sheriff of that you Name of 
 
 omit not, &c. [as in the writ of capias, No. 4, in the schedule of the said act.} attorney 
 
 8. It is further ordered, that, in every writ of distringas capias issued under the county to 
 authority of the said act, a non omittas clause may be introduced by the plaintiff, be indors- 
 without payment of any additional foe on that account. ed on writ 
 
 9. It is further ordered, that, when the attorney actually suing out any writ shall ^ well as 
 sue out the same as agent for an attorney in the country, the name and place of jjgg„t_ 
 abode of such attorney in the country shall also be indorsed upon the said writ. r *7;30 1 
 
 10. It is further ordered, that if the plaintiff or his attorney shall omit to insert in, -y^^it ir- 
 or indorse on, any writ or copy thereof, any of the matters required by the said regular 
 act to be by him inserted therein, or indorsed thereon, such writ, or copy thereof, but not 
 shall not on that account be held void, but it may be set aside as irregular, upon ap- void for 
 plication to be made to the Court out of which the same shall issue, or to any indorse- 
 judge. ments. 
 
 11. It is further ordered, that upon all writs of capias, where the defendant shall Declaring 
 not be in actual custody, the plaintiff, at the expiration of eight days after the exe- * *^"^ 
 cution of the writ, inclusive of the day of such execution, shall be at liberty to de- ^"fgndaat 
 clare de bene esse in case special bail shall not have been perfSeted. And if not in ao- 
 there be several defendants, and one or more of them shall have been served only, tual ousto- 
 and not arrested, and the defendant or defendants so served shall not have entered a dy on ca- 
 oommon appearance, the plaintiff shall be at liberty to enter a common appearance w^*'jg Q^g 
 for him or them, and declare against him or them in chief, and de bene esse against arrested 
 the defendant or defendants who shall have been arrested, and shall not have per- and others 
 fected s^-ecial bail. served. 
 
 12. It is further ordered, that in case the time for pleading to any declaration, or ^J^'^ 
 for answering any pleadings, shall not have expired before the 10th day of August ^^^ ^^ 
 in any year, the party called upon to plead, reply, &c. shall have the same number expires af- 
 of days for that purpose, after the 24th day of October, as if the declaration or pre- ter 10th 
 ceding pleading had been delivered or filed on the 24th of October ; but, in such August, 
 cases, it shall not be necessary to have a second rule to plead, reply, &e. time*i"to 
 
 13. It is further ordered, that in case a judge shall have made an order in the va- y^^ reokon- 
 cation, for the retiirn of any writ issued by authority of the said act, or any writ of ed from 
 ca. sa.,fi.fa., or elegit, on any day in the vacation, and such order as shall have 24th Oct. 
 been duly served, but obedience shall not have been paid thereto, and the same shall ^ j^'"'® 
 have been made a rule of Court in the term then next following, it shall not be ne- 
 
730 
 
 APPBHDIX. 
 
 Reg. Gen. 
 Mich. T. 3 
 
 W. 4. 
 tion, &e. 
 had been 
 delivered. 
 No further 
 rule to 
 plead. 
 If order to 
 return 
 writ in va- 
 cation be 
 made a 
 rule of 
 court, next 
 term an 
 attach- 
 ment may 
 issue 
 ■without 
 service of 
 that rule. 
 Writs is- 
 sued with- 
 out au- 
 thority of 
 attorney 
 whose 
 name is 
 indorsed 
 to be stay- 
 ed. 
 
 [ *731 ] 
 
 Title of 
 declara- 
 tion. • 
 Com- 
 mence- 
 ment of 
 summons. 
 Com- 
 mence- 
 ment ef 
 declara- 
 tion in 
 capias 
 where de- 
 fendant is 
 in custody. 
 Com- 
 mence- 
 ment of 
 declara- 
 tion 
 against 
 several 
 defend- 
 ants, some 
 of.vthom 
 have been 
 arrested 
 and the 
 others 
 served. 
 Pledges 
 discon- 
 tinued. 
 
 cessaiy to serve stieli rule of Court or to make any fresh demand of performance there- 
 on, but an attachment shall issue forthwith for disobedience of siich order, whether 
 the thing required by such order shall or shall not have been done in the mean 
 time. 
 
 14. It is further ordered, that if any attorney shall, as required by the said act, 
 declare that any writ of summons, or writ of capias, upon which his name is indors- 
 ed, was not issued by him, or with his authority or privity, ^1 proceedings upon the 
 same shall be stayed until further notice. 
 
 15. It is further ordered, that every declaration shall, in future, be intituled in the 
 proper Court, and of the day of the month and year on which it is filed or delivered, 
 and shall commence as follows : — 
 
 Declarations after Summons. 
 
 [Venue.] — A. B., by B. F. his attorney, [or, in his own proper person], com- 
 plains of O. D., who has been summoned to answer the said A. B., &o. 
 
 *Declaration after Arrest where the Party is not in Custody. 
 
 [Venue.]— A. B., by E. F., his attorney, [or in his own proper person], com- 
 plains of C D., who has been arrested at the suit of the said A. B., &c. 
 
 Declaration where the party is in Custody. 
 
 [Venue] — A. B., by E. F., his attorney, [or, in his own proper person], cois- 
 plains of 0. D., being detained at the suit of A. B., in the custody of the Sheriff, 
 [or, the Marshal of the Marshalsea of the Court of King's Bench, or the Warden 
 of the Fleet.] 
 
 Declaration after the Arrest of one or more Defendant or Defendants, and 
 where one or more other Defendant or Defendants, shall have been served only, 
 and not arrested. 
 
 [ Venue] — A B., by F. F., his attorney,] or, in his own proper person], com- 
 plains of C. D., who has been arrested at thesuit of the said A. B., [or, being de- 
 tained at the suit of the said A. B., S^c as before], and of G. H., who has been 
 served with a writ of capias to answer the said A. B., &c. 
 
 And that the entry of pledges to prosecute at the conclusion of the declaration 
 shall in future be discontinued. 
 
 ft 
 
 n. 
 
 It is ordered, that the writ of capias and distringas, which shall hereafter be is- 
 sued out of the superior Courts of Law at Westminster into the counties palatine of 
 Lancaster or Durham, shall be directed to the Chancellor of the CQunty palatine of 
 Lancaster or his deputy there, or to the bishop of Durham or his Chancellor there, 
 and shall be in the following form : — 
 
 Writ of Distringas. 
 
 William the Fourth, &o. 
 To the Chancellor of our county palatine of Lancaster or his deputy there : or, To 
 
 the Kev. Father in God , by Divine Providence Lord Bishop of Durham, or 
 
 to his Chancellor there], Greeting : — We command you, that, by our writ under the 
 seal of our said county palatine, to be duly made and directed to the Sheriff of said 
 county palatine, you command the said Sheriff [or if in Durham, that, byipur writ 
 under the seal of your bishopric, to be duly made and directed to the Sheriff of tiie 
 
OF STATUTES. 731 
 
 county "of Durham, you cause the said Sheriflf to be commanded] that he omit not Keg, Gen. 
 by reason of any lilserty in his bailiwick, but that he enter the same and distrain up- ^^S^'^' * 
 on the goods and chattels of C. D. for the sum of 40s. in order to compel his ap- 
 pearance in our Court of -, to answer A. B. in a plea of trespass on the case 
 
 [or, debt, or as the case may he], and how he shall execute that oUr writ he make 
 
 known to us in our said Court, on the , day of now next ensuing. 
 
 Witness ■ , at JFestminsfer, the day of in the year 
 
 of our reign. 
 
 Notice to be subscribed to the foregoing Writ. 
 
 In the Court of . 
 
 Between A. B. Plaintiff, 
 and 
 C. B. Defendant 
 Mr. C. D. 
 
 Take notice, that I have this day distrained On your goods and chattels in the 
 sura of 40«., in consequence of your not having appeared in the said Court, to an- 
 swer to the said A. B according to the exigency of a writ of summons, bearing teste 
 
 on the day of r-, and that, in default of your appearance to the present 
 
 writ within eight days inclusive after the return hereof, the said A. B. will cause an 
 appearance to be entered for you, and proceed thereon to judgment and execution 
 [or (if the defendant be subject to outlawry) will cause proceedings to be taken 
 to outlaw you.] 
 
 * Writ of Gapias. [ *732 ] 
 
 William the Fourth, &c. 
 
 To the Chancellor of our county palatine of Lancaster, or his deputy there : [or. 
 
 To the Kev. Father in God , by Divine Providence Lord Bishop of Durham, 
 
 or to his chancellor there]. Greeting : — We command you, that, by our writ under 
 the seal of our said county palatine, to be duly made and directed to the Sheriff of 
 our said county Palatine, you command the said Sheriff [or, if in Durham, that, by 
 our writ under the seal of your bishopric, to be duly made and directed to the Sher- 
 iff of the county of Durham, '^viVl cause the said Sheriff to be commanded] that he 
 omit not by reason of any liberty in his baliwick, but that he enter the same, and 
 
 take C. D. or , if he shall be found in his baliwick, and him safely keep 
 
 until he shall have given him bail or make deposite with him according to law in an 
 action on promises, [or, of debt, &c.] at the suit of A. B. or until the said C 
 D. shall by other lawful means be discharged from his custody : and that he further 
 command him, that, in execution thereof, he do deliver a copy thereof to the said C. 
 D. And that the said writ do require the said G. D. to take notice that within eight 
 days after execution thereof on him, inclusive of the day of such execution, he should 
 
 cauee special bail to be put in for him in our Court of to the said action ; and 
 
 that in default of his so doing, such proceedings may be had and taken as are men- 
 tioned in the warning thereunder written, or indorsed thereon ; and that he further com- 
 mand the said Sheriff, that immediately after the execution thereof, he do return that 
 writ to our said Court, together with the manner in which he shall have executed the 
 same, and the day of the execution thereof; or that, if the same shall remain unexe- 
 cuted, then that he do so return the same at the expiration of four calendar months 
 from the date thereof, or sooner if he shall be thereto required by order of the said 
 Court, or by any judge thereof. 
 Witness , at Westminster, the day of . 
 
 Memorandum to be subscribed to the Writ. 
 
 If. B. This writ is to be executed within four calendar months from the date here- 
 of, including the day of such date, and not afterwards. 
 Vol. I. 92 
 
782 
 
 APPENDIX 
 
 Bag. Gsn. 
 Mich. T. 3 
 W. 4. 
 
 Warninff to the Defendant. 
 
 1. If a defendant being in custody, shall be detained on this writ, or if a defend- 
 ant, being arrested thereon, shall go to prison for want of bail, the plaintiff may de- 
 clare against such defendant before the end of the term next after such detainer or 
 arrest, and proceed thereon to judgment and execution. 
 
 2. If a defendant being arrested on this writ, shall have made a deposite of money 
 according to the stat. 7 & 8 Greo. 4, c. 71, and shall omit to enter a common appear- 
 ance to the action, the plaintiff will be at liberty to enter a common appearance for 
 the defendant, and proceed thereon to judgment and execution. 
 
 3. If a defendant, having given bail on the arrest, shall omit to put in special bail 
 as required, the plaintiff may proceed against the sheriff, or on the bail bond. 
 
 4. If a defendant having been served only with this writ, and not arrested there- 
 on, shall not enter a common appearance within eight days after such service, the 
 plaintiff may enter a common appearance for such defendant, and proceed thereon to 
 judgment and execution. 
 
 Indorsements to he made on a writ of Ca'pias. 
 
 -, by affidavit. 
 
 -, by order of [naming the judge making the order,] dated the 
 
 Bail for £- 
 Or, 
 Bail for £- 
 day of - 
 
 L '"'^ i *This writ was issued by S. F. of , attorney for the plaintiff \or plaintirit] 
 
 within named. 
 Or, 
 
 This writ was issued in person by the plaintiff within named [mention the city 
 or parish, and also the name of the hamlet, street, and also the number of the 
 house of the plaintiff" 's residence, if any such there be.] 
 
 Keg. Gen. 
 Hil.. T. 
 3 W. 4. , 
 Bules on 
 sheriBFto 
 bring in 
 the body 
 of defend- 
 ant in va- 
 cation. 
 
 Hilary Term, 3 W. 4. 
 
 It is ordered, that in case a rule of Court or judge's order for returniilg a bailable 
 writ of capias shall expire in vacation and the sheriff or other officer having the re- 
 turn of such writ, shall return cepi corpus thereon, a judge's order may thereupon 
 issue, requiring the shferiff or other officer, within the like number of days after the 
 service of such order, as by the practice of the Court is prescribed with respect *^ 
 rules to bring in the body issued in term, to bring the defendant into Court, by forth- 
 with putting in and perfecting bail above to the action ; and if the sheriff or other of- 
 ficer shall not duly obey such order, and the same shall have been made a rule of 
 Court in the Term next following, it shall not be necessary to serve such rule of Court, 
 or to make any fresh demand thereon, but an attachment shall issue forthwith for 
 disobedience of such order, whether the bail shall or shall not have been put in and 
 perfected in the mean time. 
 
 Beg. Gen. 
 Trin. T. 8 
 
 W. i 
 Declaring 
 against 
 prisoners. 
 
 Trinity Teem, 3 W. 4. 
 
 1. It is declared ^ijd ordered, that in all cases in which a defendant shall have 
 been or shall be detained in prison or any writ of capias or detainer under the stat- 
 ute 2 W. 4, e. 39, or being arreBted thereon, shall go to prison for want of bail, and 
 
APPENDIX. 733 
 
 in all cases in wbioli he shall have been or shall be rendered to prison before declar- R-eg- Gen. 
 ation on any such process, the plaintiff in such process shall declare against such de- ™"' ''• * 
 fendant before the end of the next term after such arrest or detainer, or render, and 
 notice thereof, otherwise such defendant shall be entitled to be discharged from such 
 arrest or detainer, upon entei-ing an appearance according to the form set forth in 
 the aforesaid statute, 2 W. 4, o. 39, schedule No. 2 ; unless further time to declare 
 shall have been given to such plaintiff by rule of CoiTrt, or order of a judge. 
 
 2. It is ordered, that, from the present day in all actions against prisoners in the P'eaa by 
 custody of the Marshal of the Marshalsea, or of the Warden of the Fleet, or of the P™oaer». 
 sheriff, the defendant shall plead to the declaration at the same time, in the same 
 manner, and under the same rules, as in actions against defendants who are not in 
 custody. 
 
 3. It is ordered, that, from and after the 10th day of July next, where the plain- Render a£- 
 tiff proceeds by action of debt on the recognizance of bail in any of the Courts of ^'^ P'"- 
 Westminster, the bail shall be at liberty to render their principal at any time within ''^^"'"S* 
 the space of fourteen days next after the service of the process upon them, but not jjfn_ 
 
 at any later period ; and that upon such render being duly made, and notice thereof 
 given, the proceedings shall be stayed upon payment of the costs of the writ and ser- 
 vice thereof only. 
 
 Hilary Term, 4 W. 4. 
 
 It is ordered, that from and after the first day of Easter term next inclusive, the ^8 J^'*"- 
 following rules shall be in force in the Courts of King's Bench, Common Pleas, and m 4 
 Exchequer of Pleas, and Courts of Error in the Exchequer Chamber. 
 
 1. No demuiTer, nor any pleadings subsequent to the declaration, shall in any Dg^uyrer 
 ease be filed with any officer of the Court, but the same shall always be delivered be- to be de- 
 tween the parties. livered.not 
 
 *2. In the margin of every demurrer, before it is signed by counsel some matter ^^\„. 
 of law intended to be argued shall be stated, and if any demurrer shall be delivered L _ • "^ I 
 without such statement, or with a frivolous statement, it may be set aside as irregu- 1^°"^^ '5 
 lar by the Court or a judge, and leave may be given to sign judgment as for want of before de- 
 a plea. mUrrer 
 
 Provided, that the party demurring may, at the time of the argument, insist upon signed. 
 
 any further matters of law, of which notice shall have been given to the Court in the Other 
 _.. .1 points not 
 
 usual way. ^jj^^^ 
 
 3. No rule for joinder in demurrer shall be required, but the party demurring be argued' 
 may demand a joinder in demurrer, and the opposite party shall be bound, within No rule to 
 four days after such demand, to deliver the same, otherwise judgment. j«™ in de- 
 
 4. To a joinder in demurrer no signature of a Serjeant, or other counsel shall be J"?"^''- . 
 necessary, nor any fee allowed in respect thereof. demurrer 
 
 5. The issue, or demurrer book, shall, on all occasions, be made up by the suitor, need not 
 his attorney, or agent, as the case may be, and not, as heretofore, by any officer of be signed, 
 the Court. M'^^i°e 
 
 6. No motion, or rule for a concilium, shall be required, but demurrers, as well "„j' j^* 
 as all special cases, and special verdicts, shall be set down for argument, at the re- murrer. 
 quest of either party, with the clerk of the rules in the King's Bench and Exchequer, Setting 
 and a secondary in the Common Pleas, upon payment of a fee of one shilling, and <ip'"i spe- 
 notice thereof shall be given forthwith by such party to the opposite party. , ^^*^ ^*^* 
 
 7. Eour clear days, before the day appointed for argument, the plaintiff shall de- murrer. 
 liver copies of the demurrer book, special case, or special verdict, to the Lord Chief Delivery 
 Justice of the King's Bench, or Common Pleas, or Lord Chief Baron, as the case of paper 
 may be, and the senior judge of the Court in which the action is brought, and the books, 
 defendant shall deliver copies to the other two judges of the Court next in seniority ; 
 
 and, in default thereof, by" either party the other party may, on the day following, 
 'lelve* such copies as ought to have been so delivered by the party makihg default ; 
 
734 
 
 APPENDIX. 
 
 Beg. Gen. 
 HU. T. 4 
 W. 4. 
 
 Judgment 
 recovered. 
 — In a 
 plea of 
 judgment 
 recovered 
 the num- 
 ber of roll 
 must be 
 stated in 
 the mar- 
 gin. 
 
 Error 
 
 Writ of er- 
 ror not su- 
 persedeas 
 Tfith 
 points to 
 be argued. 
 Execution 
 if point 
 frivolous. 
 No rule to 
 certify and 
 transcribe. 
 
 [ *735 J 
 
 Bimiuu- 
 tlon, as- 
 signment 
 of errors, 
 sci.fa. 
 qunre exe- 
 cut. 
 
 Delivery 
 of proceed, 
 iugs in er- 
 ror. 
 
 No set. fa. 
 ad ttudien- 
 dum erro- 
 res 
 
 Joinder in 
 error 
 Tpithin 
 twenty 
 
 Where 
 twenty 
 days ex- 
 pire after 
 10th Au- 
 gust. 
 Further 
 time may 
 be allowed. 
 Not to ap- 
 ply to er- 
 rors in 
 fines, &c. 
 
 and the party makiag default shall not be heard until he shall have paid for such 
 copies, or deposited with the clerk of the rules in the King's Bench and Exchequer, 
 or the secondary in the Common Pleas, as the case may be, a sufficient sum to pay 
 for such copies. 
 
 Where a defendant shall plead a plea of judgment recovered in another Court, he 
 shall, in the margia of such plea, state the date of such judgments, and if such judg- 
 ment shall be in a Court of record, the number of the roll on which such proceedings 
 are entered, if any ; and in default of his so doing, the plaintiff shall be at liberty to 
 sign judgment as for want of a plea ; and in case the same be falsely stated by the 
 defendant, the plaintiff, on producing a certificate from the proper officer, or person 
 having the custody of the records or proceedings of the Court where such judgment 
 is alleged to be recovered, that there is no such record or entry of a judgment as 
 therein stated, shall be at liberty to sign judgment as for want of a plea, by leave of 
 the Court or a judge. 
 
 9. No writ of error shall be a supersedeas of execution, until service of the notice 
 of the allowance thereof, containing a statement of some particular ground of error in- 
 tended to be argued. 
 
 Provided, that if the error stated in such notice .shall appear to be frivolous, the 
 Court, or a judge upon summons, may order execution to issue. 
 
 10. No rule to certify or transcribe the record shall be necessary, but the plaintiff 
 in error shall, within twenty days after the allowance of the writ of error, get the tran- 
 script prepared and examined with the clerk of the errors of the Court in which the 
 judgment is given, and pay the transcript money to him ; in default whereof, the de- 
 fendant in uiTor, his executors or administrators, shall be at liberty to sign judgment 
 of non pros. The clerk of the errors shall, after payment of the transcript mbn- 
 ey, deliver the writ of error, when returnable, with the transcript annexed, to the 
 cleik of the errors of the Court of Error. 
 
 *11. No rule to allege diminution, nor rule to assign errors, nor scire facias quare 
 executionem non, shall be necessary in order to compel an assignment of errors, but 
 within eight days after the writ of error, with the transcript annexed, shall have been 
 delivered to the clerk of the errors of the Court of error, or to the signer of the writs 
 in the King's Bench, in cases of error to that Court, or within twenty days after the 
 allowance of the writ of error, in cases of error, coram nohis coram vohis the plain- 
 tiff in error shall assign errors ; and on failure to assign errors, the defendant in er- 
 ror, his executors or administrators, shall be entitled to sign judgment of non 
 pros. 
 
 12. The assignment of errors, and subsequent pleadings thereon, shall be deliv- 
 ered to the attorney of the opposite party, and not filed with any officer of the 
 Court. 
 
 13. No scire facias ad audiendum errores shall be necessary (unless in rase of 
 a change of parties) ; but the plaintiff in error may demand a joinder in error, or 
 plea to the assignment of errors, and the defendant in error, his executors or admin- 
 istrators, shall be bound, within twenty days after such demand to deliver a joinder 
 or plea, or to demur, otherwise the judgment shall be reversed. 
 
 Provided, that if in any case the time allowed, as herein before mentioned, for 
 getting the transcript prepared and examined, for assigning errors, or for delivering 
 a joinder in error, or plea, or demurrer, shall not have expired before the 10th day 
 of August in any year, the party entitled to such time shall have the like time, for 
 the same purpose, after the 24th day of October, without reckoning any of the days 
 before the 10th of August. 
 
 Provided also, that in all cases such time may be extended by a judge's order. 
 
 Provided also, that in all cases of writs of error to reverse fines and common re- 
 coveries, a scire facias to the terre-tenants shall issue, as heretofore. 
 
 14. When issue in law is joined, either party may set down the case for argu- 
 ment with the clerk of the errors of the Court of Error, or the clerk of the rules in 
 the King's Bench, (as the case may require), and forthwith give notice in writing 
 thereof to the other party, and proceed to argument in like manner as on a demurrer, 
 without any rule or motion for a concilium. 
 
APPENDIX. 735 
 
 15. Four clear days before the day appointed for argument, the plaintiff in error ^*§.,^^°', 
 shall deliver copies of the judgment of the Court below, and of the assignment of ^' '^ • 
 errors, and of the pleadings thereon, to the judges of the King's Bench, on -writs of getting" 
 error from the common Pleas or Exchequer, and to the judges of the common Pleas, case for 
 on writs of error from the Bang's Bench; and the defendant in error shall deliver argument, 
 copies thereof to the other judges pf the Court of Exchequer Chamber before whom I'^el^ery 
 the case is to be heard ; and in default by either party, the other party may deliver books, 
 such books as ought to have been delivered by the party making default, and the 
 
 party making default shall not be heard until he shall have paid for such copies, 
 or deposited with the clerk of the errors or the clerk of the rules in the King's Bench, 
 (as the case may be,) a sufficient sum to pay for such copies. 
 
 16. No entry on record of the proceedings in error shall be necessary before set- Proceed-^ 
 ting down the case for argument, but after judgment shall have been given in the rOTVeed'" 
 Court of Error in the Exchequer Chamber, either party shall be at liberty to enter j,gf j,e eu- 
 the proceedings in error on the jutigment roll remaining in the Court below, on a tered be- 
 certificate of a clerk of the errors of the Exchequer Chamber of the judgment given, fore argu- 
 for which a fee of three shillings and four pence, and no more, shall be charged. ™™'- 
 
 17. Notice of taxing costs shall not be necessary in any case where the defendant Notices of 
 has not appeared in person, or by his attorney or guardian, notwithstanding the taxation, 
 general rule of Trinity Term, 1 W. 4,. s. 12. 
 
 18. It shall not be necessary to repass any nisi prius record which shall have Kepassing 
 been once passed, and upon which the fees of passing shall have been paid ; '■^°°™- 
 and if it shall be necessary to amend the day of the tnste and retui-n of the dis- 
 tringas or habeas corpora, or of the clause of nisi prius, the same may be 
 
 done by the order of a judge obtained on an application ex parte. i 
 
 *19 Writs of trial shall be sealed only, and not signed. r *736 1 
 
 20. Either party, after plea pleaded, and a reasonable time before trial, may give Writs of 
 notice to the other, either in town or country in the form hereto annexed, marked A., trial, 
 or to the like effect, of his intention to adduce in evidence certain written or printed Proof of 
 documents ; and unless the adverse party shall consent by indorsement on such no- "ocuments. 
 tice within forty eight hours, to make the admission specified, the party requiring 
 such admission may call on the party required by summons to show cause before a 
 judge why he should not consent to such admission, or in case of refusal be subject 
 to pay costs of proof; and unless the party required shall expressly consent to make 
 such admission, the judge shall, if he think the application reasonable, make an or- 
 der, that the costs of proving any document specified in the notice, which shall be 
 proved at the trial to the satisfaction of the judge or other presiding officer, certified 
 by his indorsement thereon, shall be paid by the party so required, whatever may be 
 the result of the cause. 
 
 Provided, that if the judge shall think the application unreasonable, he shall in- 
 dorse the summons accordingly. 
 
 Provided also, that the judge may give such time for inquiry or examination of 
 the documents intended to be offered in evidence, and give such direction for inspec- 
 tion and examination, and impose such terms upon the party requiiing the admis- 
 sion, as he shall think fit. 
 
 If the party required shall consent to the admission, the judge shall order the 
 same to be made. 
 
 No costs of proving any written or printed document shall be allowed to any party 
 who shall have adduced the same in evidence on any trial, unless he shall have 
 given such notice as aforesaid, and the adverse party shall have refused 
 or neglected to make such admission, or the judge shall have indorsed upon 
 the summons that he does not think it reasonable to require it. 
 
 A judge may make such order as he may think fit respecting the costs of the ap- 
 plication, and the costs of the production and inspection, and in the absence of a 
 special order the same shall be costs in the cause. 
 
736 
 
 APPENDIX. 
 
 Beg. Gen 
 
 Hil. T. 4 
 
 W. 4. 
 
 FOEM OJP NOTICE REPEREED TO. 
 
 A. 
 
 In the K. B. [" Q. P." or Exchequer."] 
 
 A.B. 
 
 V. 
 
 CD. 
 
 [*737] 
 
 Take police, that the plaintiff [or " defendant "] in this cause proposes to adduce 
 in evidence the several documents hereunder specified and that the same may be in- 
 spected by the defendant, for " plaintiff''], his attorney or agent, at ' ,on 
 , between the hours of , and that the defendant [or " plain- 
 tiff"] will be required to admit that such of the said documents as are specified to be 
 originals, were respectively written, signed or executed, as they purport respective- 
 ly to have been ; that such as are specified as copies are true copies ; and such doc- 
 uments as are stated to have been served, sent, or delivered were so served, sent, 
 or delivered respectively, saving all just exceptions to the admissibility of all such 
 documents as evidence in this cause. Dated, &;c. 
 
 G. B.. attorney for plaintiff [" or defendant."] 
 To JB. F, attorney or agent for 
 
 defendant [or " plaintiff."] 
 [Here describe the documents, the manner of doing which may he as follows ;} 
 
 *ORIGINALS. 
 
 Description of the Documents. 
 
 Deed of Covenant between A. JB. and C. £>. first part, 
 
 and JS. F. second part .... 
 Indenture of lease from A. B. io 0. D. ... 
 Indenture of Release between A. B., C. D., first part, 
 
 &o 
 
 Letter — Defendant to Plaintiff 
 
 Policy of Insurance on Goods by Ship Isabella, on voy 
 
 age from Oporto to London 
 
 Memorandum of Agreement between G. D., Captain ") 
 
 of said Ship, and ^. -F. | 
 
 Bill of Exchange for £100, at three months, drawn by 
 
 A. B. on and accepted by O. D. indorsed by E. F.. 
 
 and G. ff. 
 
 M 
 
 "i 
 
 Date. 
 
 1st January, 1828. 
 1st February, 1828. 
 2d February, 1828. 
 1st March, 1828. 
 3d December, 1827. 
 
 1st January, 1828. 
 1st May, 1829. 
 
 COPIES. 
 
 Description of Documents. 
 
 Date. 
 
 Original or Duplicate, served, 
 sent or delivered, ivien, how, 
 and by whom. 
 
 Register of Baptism of A. B., in 
 the parish of X 
 
 Letter — Plaintiff to Defendant. 
 
 Notice to Produce Papers . . 
 
 Record of a Judgment of the 
 Court of King's Bench, in an 
 action, J. S. y. J. N. . . . 
 
 Letters Patent of Bang Charles") 
 II. in tihe Rolls Chapel . . . ) 
 
 1st Jan. 1808. 
 1st Feb. 1828. 
 
 1st March, 1828. 
 
 Trinity Term, 
 10th Geo. rV. 
 
 1st Jan. 1680. 
 
 Sent by General 
 Post, 2d Feb. 
 1828. 
 
 Served 2d March, 
 1828, on defen- 
 dant's attorney, 
 by E. F. of 
 
OF STATUTES. 
 
 *HiLAET Term, 4 Will. 4. 
 
 *T38 
 
 Wherbas it is provided by the stat. 3 & 4 Will. 4, s. 42, s. 1, that the judg- ijif'-r,*^' 
 es of the superior Courts of Common Law at Westminster, or any eight or more of yf. "4. 
 them, of whom the Chiefs of each of the said Courts should be three, should and Recital of 
 might, by any rule or order to be from time to time by them made, in term or vaca- stat- 3 & 4 
 tiop, at any time within five years from the time when the said act should take effect, .„' ■ • "' 
 make such alterations in '.he mode of pleading in the said Courts, and in the mode 
 of entering and transcribing pleadings, judgments and other proceedings in ac- 
 tions at law, and such regulations as to the payment of costs, and otherwise, for car- 
 rying into effect the said alterations, as to them might seem expedient ; which rules, 
 orders, and regulations were to be laid before both Houses of Parliament as therein 
 mentioned, and were not to have effect until six weeks after the same should have 
 been so laid before both Houses of Parliamentj but after that time should be binding 
 and obligatory on the said Courts, and -all other Courts of common law, and be of the 
 like force and effect as if the provisions contained therein had been expressly enact- 
 ed by parliament. 
 
 Provided that no such rule or order should have the effect of depriving any person 
 of the power of pleading the general issue, and of giving the special matter in evi- 
 dence, in any case wherein he then was or thereafter should be entitled so to do, by 
 virtue of an act of parliament then or thereafter to be in force. 
 
 It is therefore ordered, that from and after the first day of faster Term next in- 
 . elusive, unless parliament shall in the mean time otherwise enact, the following rules 
 and regulations, made pursuant to the said statute, shall be in force. 
 
 First, Geneeal Rules and Regulations. 
 
 1. Every pleading, as well as the declaration, shall be entitled of the day of the Allplead- 
 month and year when the same was pleaded, and shall bear no other time or date, tJIfentiUed 
 and every declaration and other pleading shall also be entered on the record made of the day 
 up for trial and on the judgment-roll, under the date of the day of the month and and year 
 year when the same respectively took place, and without reference to any other time whea 
 
 or date, unless otherwise specially ordered by the Court or a judge. and to be 
 
 2. No entry or continuances by way of imparlance, curia advisari vult, vice comes ^^ entered 
 MOW misii breve, or otherwise shall he made, upon any record or roll, whatever, or in of record, 
 the pleadings, except the Jtiratur poniiur in respectu, which is to be retained. 
 
 Provided that such regulation shall not alter or affect any existing rules of practice No Contin- 
 as to the times of proceeding in the cause. uanoes to 
 
 Provided also, that in all cases in which a plea puis darrein continuance is now ij*j,^"o^af-' 
 by law pleadable in banc, or at nisi prius, the same defence may be pleaded, with an f^^ tt,g 
 allegation that the matter arose after the last pleading, or the issuing of the jury pro- times of 
 cess, as the case may be. proceed- 
 
 Provided also, that no such plea shall be allowed, unless accompanied by an affi- ^ S- 
 davit that the matter thereof arose within eight days next before the pleading of such (^i^rrcf,! 
 pleas, or unless the Court or a judge shall otherwise order. contimi- 
 
 3. All judgments, whether interlocutory or final, shall be entered of record of the a^ce. 
 day of the month and year, whether in term or vacation, when signed, and shall not Affidavit 
 have relation to any other day. Judgment 
 
 Provided, that it shall be competent for the Court or a judge to order a judgment to be en- 
 to be entered mmc pro tunc. tered of 
 
 *4. No entry shall be made on record of any warrants of attorney to sue or de- ^^^ ^^7 
 fend. ^^^^^ 
 
 5. And whereas, by the mode of pleading hereinafter prescribed, the several dis- r *739 i 
 puted facts material to the merits of the case will, before the trial, be brought to ^ '^ 
 
739 
 
 APPENDIX 
 
 Reg. Gen. 
 Hil.. T. 
 4W. 4. 
 JVunc pro 
 tunc. 
 Warrants 
 of attorney 
 to be en- 
 tered. 
 Several 
 counts and 
 pleas not 
 allowed. 
 Instances 
 in declara- 
 tions. 
 Contract 
 with con- 
 dition. 
 Non de- 
 livery of 
 bill in pay- 
 ment. 
 Not ac- 
 cepting 
 and pay- 
 ing for 
 goods. 
 Bills and 
 notes. 
 Policies. 
 Premiiim, 
 Charter- 
 parties. 
 Freight. 
 Demise 
 and use 
 and occu- 
 pation. 
 Misfeas- 
 ance. 
 Nonfeas- 
 ance. 
 Trespass 
 indebitatus 
 assumpsit. 
 
 Account 
 stated. 
 
 Several 
 breaches 
 
 [ *T40 J 
 
 Instances 
 of pleas 
 and avow- 
 ries, &o. 
 Payment. 
 Accord 
 and satis- 
 faction. 
 
 the notice of the respective parties more distinctly than heretofore ; and by the. said 
 act of the 3d & 4th Will. 4, c. 42, s. 23, the powers of amendment at the trial, in 
 cases of variance in particulars not material to the merits of the case, are greatly en- 
 larged : 
 
 Several counts shall not be allowed, unless a distinct subject-matter of complaint 
 is intended to be established in respect of each ; nor shall several pleas, or avowries, 
 or cognizances be allowed, unless a distinct ground of answer or defence is intended 
 to be .established in respect of each. 
 
 Therefore, counts founded on one and the same principal matter of complaint, but 
 varied in statement, description, or circumstances only, are not to be allowed. 
 
 Ex. gr. Counts founded upon the same contract, described in one as contract 
 without a condition, and in another as a'contraot with a condition, are not to be al- 
 lowed ; for they are founded on the same subject-matter of complaint, and are only 
 variations in the statement of one and the same contract. 
 
 So, counts for not giving, or delivering, or accepting a bill of exchange in payment, 
 according to the contract of sale, for goods sold and delivered, and for the price of 
 the same goods to be paid in money, are not to be allowed. 
 
 So, counts for not accepting and paying for. goods sold ; and for the price of the 
 same goods, as goods bargained and sold, are not to be allowed. 
 
 But counts upon a bill of exchange or promissory note, and for the consideration 
 of the bill or note in goods, money, or otherwise, are to be considered as founded on 
 distinct subject-matters of complaint ; for the debt and the security are different con- 
 tracts, and such counts are not to be allowed. 
 
 Two counts upon the same policy of insurance are not-to be allowed. 
 
 But, a count upon a policy of insurance, and a count for money had and received 
 to recover back the premium upon a contract implied by law, are to be allowed. 
 
 Two counts on the same charter-party are not to be allowed. 
 
 But, a count for freight upon a charter-party, and for freight pro rata itinuris, 
 upon a contract implied by law, are to be allowed. 
 
 Counts upon a demise, and for use and occupation of the same land for the ^ame 
 time, are not to be allowed. 
 
 In actions of tort for misfeasance, several counts for the same injury, varying the 
 description of it, are not to be allowed. 
 
 In the like actions for nonfeasance, several counts founded on varied statements of 
 the same duty are not to be allowed. * 
 
 Several counts in trespass, for acts committed at the same time and place, are not 
 to be allowed. 
 
 Where several debts are alleged in indebitatus assumpsit to be due" in respect of 
 several matters, ex. gr, for wages, work, and labor as a hired servant, work and la- 
 bor generally, goods sold and delivered, goods bargained and sold, money lent, 
 money paid, money had and received, and the like, the statement of each debt is to 
 be considered as amounting to a several count within the meaning of the rule which 
 forbids the use of several counts, though one promise to pay only is alleged in consid- 
 eration of all the debts. 
 
 Provided, that a count for monpy due on an account stated may be joined with any 
 other count for a money demand, though it may not be intended to establish a dis- 
 tinct subject-matter of complaint in respect of each of such counts. 
 
 The rule which forbids the use of several counts, js not to be considered as pre- 
 cluding the plaintiff from alleging more breaches than one of the same contract in 
 the same count. 
 
 *Pleas, avowries, and cognizances, founded on one and the same principal matter, 
 but varied in statement, description, or circumstances only, (and pleas in bar in re- 
 plevin are within the rule), are not to be allowed. 
 
 Ex. gr. Pleas of soleit ad diem and of solvit post diem, are both pleas of pay- 
 ment, varied in the circumstance of time only, are not to be allowed. 
 
 But pleas of payment, and of accord and satisfaction, or of release, are distinct and 
 are to be allowed. 
 
APPENDIX. ^ 740 
 
 Pleas of an agreement to accept the security of A. B. in discharge of the plaintiff's j^pJ?*? 
 demand, and of an agreement to accept the security of O. D., for the like purpose, ^"- • * 
 are also distinct, and to be allowed. —Release. 
 
 But pleas of an agreement to accept the security of a third person, in discharge of Liability 
 the plaintiff's demand, and of the same agreement, describing it to be an agreement of third 
 to forbear for a time, in consideration of the same security, are not distinct ; for they P^^'ty- 
 are only variations in the statement of one and the same agreement, whether more ^^_^^ ^^ 
 or less extensive, in consideration of the same security, and not to be allowed. ' _ forbear in 
 
 In trespass qucere elausvm fregit, pleas of soil, and freehold of the defendant in oonaidersi- 
 the locus ill quo, and of the defendant's right to an easement there — pleas of right tion of lia- 
 of way, of common of pasture, of common of turbary, and of common of estovers, are ^^1"? "' 
 distinct, and are to be allowed. , 
 
 But pleas of right of common at all times of the year, and of such right at particu- /,,'i. len., 
 lar times, or in a qualified manner are not to be allowed. easement, 
 
 So pleas of right of wayover the locus in quo, varying the termini or the purpo- "g''* "^ 
 ses, are not to be allowed. Zflom^"^^ 
 
 Avowries for distress for rent, and for distress for damage feasant are to be .al- „jo„ g^^. 
 lowed. ^ mon of 
 
 But avowries for distress for rent, varying the amount of rent reserved, or the times turbary, 
 at which the rent is payable, are not to be allowed. ''"'* ^^^' 
 
 The examples in this and other places specified, are given as some instances only ^"j^ht of 
 of the application of the rules to which they relate ; but the principles contained in common, 
 the rules are not to be considered as restricted by the examples specified. Right of 
 
 6. Where more than one count, plea, avowry, or cognizance, shall have been 'way. 
 used in apparent violation of the preceding rule, the opposite party shall be at liber- Distress 
 ty to apply to a judge, suggesting that two or more of the counts, pleas, avowries, or ^^^ij ^^^ 
 cognizances are founded on the same subject matter of complaint, or ground of an- age /ca- 
 swer or defence, for an order that all the counts, pleas, avowries, or cognizances, in- iant. 
 troduoed in violation of the rule, be struck out at the cost of the party pleading; Disttess 
 whereupon the judge shall order accordingly, unless he shall be satisfied, upon cause j^g'^^^j^ 
 shown, that some distinct subject matter of complaint is hona fide intended to be above- 
 established in respect of each of such counts or some distinct ground of answer or de- mentioned 
 fences in respect of each of such pleas, avowries, or cognizances, in which case he *s instau- 
 shall indorse upon the summons, or state in his order, as the case may be, that he is S?^ I'm ' 
 so satisfied ; and shall also specify the counts, pleas, avowries, or cognizances men- f^^ jj,ggg 
 tioned in such application, which shall be allowed. rules, how 
 
 7. Upon the trial, where there is more than one count, plea, avowry, or cognizance taken ad- 
 upon ths record, the party pleading fails to establish a distinct subject mat- vantage ot, 
 ter of complaint in respect of each count, or some distinct ground of answer or- 
 defence in respect of each plea, avowry, or cognizance, a verdict and judgment shall ?'^'^t.°^^ 
 pass against him upon each count, plea, avowry, or cognizance, which he shall j^j^g. 
 have so failed to establish, and he shall be liable to the other party for all 
 
 the cost occasioned by such count, plea, avowry, or cognizance, including those 
 of the evidence as well as those of the pleadings ; and further, in all cases in 
 which an application to a judge has been made under the preceding rule, and any 
 count, plea, avowry, or cognizance, allowed as aforesaid, upon the ground that 
 some distinct subject matter of com^aint was hona -fide intended to be established at ^- ■., v, 
 the *trial in respect of each count, or some distinct ground of answer or defence in re- L ' 41 J 
 spect of each plea, avowry, or cognizance so allowed, if the Court or judge, before whom 
 the trial is had, shall be of opinion that no such distinct subject matter of complaint 
 was hona fide intended to be established in respect of each count so allowed, or no 
 such distinct ground of answer or defence in respect of each plea, avowry, or cogni- 
 zance so allowed, and shall so certify before final judgment, such party so pleading 
 shall not recover any costs upon the issue or issues upon which he succeeds, arising 
 out of any count, plea, avowry, or cognizdnce with respect to which the judge shall so 
 certify. ^ , . , . „ Speoial 
 
 8. The name of a county shall in all cases be stated m the margin of a declara- venue. 
 
 Vol. I. 93 
 
741 
 
 APPENDIX. 
 
 Keg. Gen. 
 Hil. T. 4 
 W. 4. 
 Local de^ 
 scription: 
 Com- 
 mence- 
 ment and 
 conclusion 
 of pleas, 
 &c. 
 
 Com- 
 mence- 
 ment of 
 plea. 
 Second 
 plea. 
 
 Protesta- 
 tion 
 
 Traveiaes. 
 
 Opposite 
 party may 
 plead over. 
 Form of 
 demurrer. 
 Joinder in 
 demurrer. 
 
 . Entry of 
 proceed- 
 ings on 
 record. 
 
 Charge for 
 issue. 
 
 [ *T42 ] 
 
 Payment 
 of money 
 into Court 
 
 tion, and shall be taken to be the venue intended by the plaintiff, and no venue shall 
 be stated in the hoS/y of the declaration, or in any subsequent pleading. 
 
 Provided, that, in cases where local description is now required, such local descrip- 
 tion shall be given. 
 
 9. In a plea or subsequent pleading, intended to be pleaded in bar of the whole 
 action generally, it shall not be necessajy.to use any allegation of actionem non, or 
 to the Ske effect, or any prayer of judgment; nor shall it be necessary in any rep- 
 lication, or subsequent pleading intended to be pleaded in maintenance of the 
 whole action, to use any allegation of " precludi non,'" or to the like effect, or any 
 prayer or judgment ; and all ple3,s, replications, and subsequent pleadings, pleaded 
 without such formal parts as aforesaid, shall be taken, unless otherwise expressed, as 
 pleaded respectively in bar of the whole action, or in the maintenance of the whole 
 action ; provided that nothing herein contained shall extend to cases where an es- 
 toppel is pleaded. 
 
 10. No formal defence shall be required in a plea, and it shall commence as fol-- 
 
 lows: — "The said defendant, by , his attorney, \or, in person, S^c.^, says 
 
 that 
 
 11. It shaU not be necessary to state in a second or other plea or avowry, that is 
 pleaded by leave of the Court, or according to the form of the statute, or to that 
 effect. 
 
 12. No protestation shall hereafter be made in any pleading ; but either party 
 shall be entitled to the same advantage in that or other actions, as if a protestation 
 had been made. 
 
 13. AU special traverses or traverses with an inducement of affirmative matter, 
 shall conclude to the country. 
 
 Provided, that this regulation shall not preclude the opposite party from pleading 
 over to the inducement when the traverse is material. 
 
 14. The form of demurrer shall be as follows : — " The said defendant, by , 
 
 his attorney, \or, in person, SfC, or plaintiff], says that the declaration [or plea, ^c] 
 is not sufficient in law," showing the special cause of demurrer if any. 
 
 The' form of a joinder in demurrer shall be as follows : — " The said plaintiff [cr 
 defendant] says that the declaration [or plea ^c] is sufficient in law." 
 
 15. the entry of proceedings on the record for trial, or on the judgment-roll, 
 f according to the nature of the case), shall be taken to be, and shall be in fact, the 
 first entry of the proceedings in the cause, or of any part thereof, upon record ; and 
 no fees shall be payable in respect of any prior enbry made or supposed to be made 
 on any roll or record whatever. 
 
 16. No fees shall be charged in respect of more than one issue by any of the of- 
 ficers of the Court, or of any judge at the assizes, or any other officer, in any action 
 of assumpsit, or in any action of debt on simple contract, or in any action on the 
 case. 
 
 *17. When money is paid into Court, such payment shall be pleaded in all cases, 
 and, as near as may be, in the following form, mutatis mutandis : — 
 G. D. ") The day of 
 
 No order 
 to pay 
 money in 
 to Court 
 except in 
 certain 
 cases. 
 
 A.B. 
 
 The defendant, by 
 
 > his 
 
 attorney, \or, in person, ^'c] says, 
 that the plaintiff ought not further to maintain his action, because the defendant now 
 brings into Court the sum of j£ , ready to be paid to the plaintiff; and the de- 
 fendant further says, that the plaintiff has not sustained damages [or, in actions of 
 debt, that he is not indebted to the plaintiff] to a greater amount than the said sum, 
 (Sec., in respect of the cause of action in the declaration mentioned, and this he is 
 ready to verify ; wherefore he prays judgment if the plaintiff ought further to main- 
 tain his action." 
 
 18. No rule or judge's order to pay ttioney into Court shall be necessary, except 
 under the 3 & 4 Will. 4, 42, s. 21 ; but the money shall be paid to the proper offi- 
 cer of each Court, who shall give a receipt for the amount in the margin of^e plea ; 
 and the said sum shall be paid Out to the plaintiff on demand. 
 
APPENDIX. 
 
 742 
 
 19. The plaintiff, after the delivery of a plea of payment of money into Court, ^p^*^- 
 shall be at liberty to reply to the same by accepting the sum so" paid into Court in ^^ "^^ " 
 full satisfaction and discharge of the cause of action in respect of which it has bepn proceed- 
 paid in ; and he shall be at liberty in that case to tax his costs of suit, and, in case ing by 
 of non-payment thereof within forty -eight hours, to sign judgment for his costs of suit plaintiff 
 so taxed ; or the plaintiff may reply " that.he has sustained damages [or, that the de? ^g^^.^*^" 
 fendantis indebted to him, as the case may be,] to a greater amount than the said mopey in- 
 sum ; " and, in the event of an issue thereon being found for the defendant, the ds- to Court, 
 fendant shall be entitled to judgment and his costs of suit. 
 
 20. In all cases under the 3 & 4 Will. 4, c. 42, s. 10, in which, after a plea in Corn- 
 abatement of the nonjoinder of another person, the plaintiff shall, without having pro- menoe- 
 ceeded to trial on an issue thereon, commence another action against the defendant or jlg^^y^. 
 defendants in the action, in which such plea in abatement shall have been pleaded, tjou after 
 and the person or persons named in such plea in abatement as joint contractors, the plea of 
 commencement of the declaration shall be in the following form : — non-join- 
 
 " [ Venue.] — A. B., by E. F., his attorney, [or, in his own proper person, &c.] "^'• 
 complains Of C. D., and G. H., who have been summoned to answer the said A. B-, 
 and which said G. D. has heretofore pleaded, in abatement the nonjoinder of the said 
 G. H., &c." {The same form to be used mutatis mutandis in cases of arrest or 
 detainer. ) 
 
 21. In all actions by and against assignees of a bankrupt or insolvent, or execu- Character 
 tors or administrators, or persons authorized by act of parliament to sue or be sued as o^ asaign- 
 nominal parties, the character in which the plaintiff oi; defendant is stated on the ^^' ^°' 
 record to sue or be sued shall not in any case be considered as in issue, unless ape- ^^ ^ |[j. 
 <)ially denied. mitted, 
 
 PLEADINGS IN PAETICULAK ACTIONS. 
 
 ttuless 
 
 specially 
 
 denied. 
 
 1. In all actions of assumpsit, except on bills of exchange and promissory notes, Effect of 
 the plea of norb-assumpsit shall operate only as a denial in fact of the express con- non us- 
 tract or promise alleged, or of the matters of fact from which the contract or promise *""»?«''- 
 alleged may be implied by law. 
 
 Ex. gr. In an action on a warranty, the plea will operate as a denial of the fact Instances, 
 of the warranty having been given upon the alleged consideration, but not of the "*"'"'°ty' 
 breach ; and in an action on a policy of insurance, of the *subscription to the alleg- Policy, 
 ed policy by the defendant, but not of the interest, of the commencement of the risk, [ *743 ] 
 flf the .loss, or of the alleged compliance TPith warranties. 
 
 In actions against carriers and other bailees, for not delivering or not keeping Carriers 
 goods safe, or not returning them on request, and in actions against agents for not and ball- 
 accounting, the plea will operate as a denial of any express contract to the effect al- ®^- 
 leo-ed in the declaration, and of such bailment or employment as would raise a prom- Agents, 
 ise in law to the effect alleged, but not of the breach. 
 
 In an action of indebitatus assumpsit, for goods sold and delivered, the plea of Goods sold 
 ■non assumpsit will operate as a denial of the sale and delivery in point of fact; in 
 the like action for money had and received, it will operate as a denial both of the re- Money 
 peipt of the money and the existence of those facts which make, such receipt by the ^^■ 
 defendant a receipt to the use of the plaintiff. 
 
 2. In all actions upon bills of exchange and promissory notes, the plea of non as- Bills and 
 ■sumpsit shall be inadmissible In such actions, therefore, a plea in denial must trav- °°*«' ^° 
 erse some mattei; of fact ; ex. gr. the drawing, or making, or indorsing, or accepting, P™*^°' 
 or presenting, or notice of dishonor of the bill or note. 
 
 3. In every species of assumpsit, all matters in confession and avoidance, inclvid- In every 
 ing not only those by way of discharge, but those wjiich show the transactipn to be action of 
 either void or voidable in point of law, on the ground of fr^nd or oti?erwiso, .^^\\ be """j"^"^ 
 
743 
 
 APPENDIX. 
 
 Reg. Gen. 
 Hil. T. 4 
 W. 4. 
 
 confession 
 and avoid- 
 ance to be 
 pleaded 
 specially. 
 Statement 
 of interest 
 of assured. 
 
 JVon est 
 factum. 
 
 JVil dbeet. 
 General 
 issue in 
 debt. 
 
 Matters in 
 confession 
 and avoid- 
 ance to be 
 pleaded 
 specially. 
 Pleas in 
 other oa- 
 ses. 
 
 J\ron diti- 
 net. 
 
 [ *744 J 
 
 Effect of 
 not guilty. 
 
 Other 
 pleas. 
 
 Inslancen : 
 Nuisance. 
 
 Bight of 
 
 way. 
 
 Trover. 
 
 Slander. 
 
 Escape, 
 
 specially pleaded; ex. gr., infancy, coverture, release, payment, performance, illegal- 
 ity of consideration ' either by statute or common law, drawing, indorsing, accepting, 
 &c., bills or note by way of accommodation, set-off, mutual credit, unseaworthiness, 
 misrepresentation, concealment, deviation, and various other defences, must be 
 pleaded. 
 
 4. In actions on policies of assurance the interest of the assured may be averred 
 thus : — " That A., £.,'' C. and D., [or some one of them,] were or was interested," 
 Src. And it may also be averred, " that the insurance was made for the use and ben- 
 efit, and on the account of the person or persons so interested." 
 
 II. — In Cove.nant and Debt. 
 
 1. In debt on specialty or covenant, the plea of non est factum shall operate as a 
 denial of the execution of the deed in point of fact only, and all other defences shall 
 be specially pleaded, including matters which make the deed absolutely Toid, as well 
 as those which make it voidable. 
 
 2. The plea of "nil debet" shall not be allowed in any action. 
 
 3. In actions of debt on simple contract, other than on bills of exchange and 
 promissory notes, the defendant may plead that " he never was indebted in manner 
 and form as in the declaration alleged," and such plea shall have the same opera- 
 tion as the plea of non assumpsit in indebitatus assumpsit ; and all matters in 
 confession and avoidance shall be pleaded specially as above -directed in actions of 
 assumpsit. 
 
 4. In other actions of debt, in which the plea of nil debet has been hitherto allowed, 
 including those on bills of exchange and promissory notes, the defendant shall deny 
 specifically some particular matter of fact alleged in the declaration, or plead special- 
 ly in confession and avoidance 
 
 III. — Detinue. 
 
 The plea of non detinet shall operate as a denial of the detention of the goods by 
 the defendant, but not of the plaintiff's property therein, and no other defence than 
 such denial shall be admissible under that plea. 
 
 *IV.— /ra Case. 
 
 1. In actions on the case, the plea of not guilty shall operate as a denial only of 
 the breach of duty or-wrongful act alleged to have been committed by the defendant 
 and not of the facts stated in the inducement, and no other defence than such de- 
 nial shall be admissible under that plea : all other pleas in denial shall take issue on 
 some particular matter of fact alleged in the declaration. 
 
 Ex. gr. *In an action on the case for a nuisance to the occupation of a house by 
 carrying on an offensive trade, to the plea of not guilty will operate as a denial only 
 that the defendant carried on the alleged trade in such a way as to be a nuisance to 
 the occupation of the house, and wUl not operate as a denial of the plaintiff 's occu- 
 pation of the house. 
 
 In an action on the case, for obstructing a right of way, such plea wUl operate as 
 a denial of the obstruction only, and not of the plaintiff's right of way ; and in an 
 action for converting the plaintiff's goods, the conversion only, and not the plaintiff's 
 title to the goods. 
 
 In an action of slander of the plaintiff in his ofjce, profession, or trade, the plea of 
 not guilty will operate to the same extent precisely as at present in denial of speak- 
 ing the words, of speaking them maliciously, and in the sense imputed, and with 
 reference to the plaintiff's office, profession, or trade; but it will not operate as a 
 denial of the fact of the plaintiff holding the office or beSng of the profession or trade 
 alleged. • 
 
 In actions for an escape, it will operate as a denial of the neglect or default of 
 
APPENDIX. 744 
 
 the sheriff or his officers, but not of the debt, judgment, or preliminary pro- Reg. Gen. 
 oeedings. w'i^' * 
 
 In this form of action against a carrier, the plea of not guilty will operate as a de- 
 nial of the loss or damage, but not of the receipt of the goods by the defendant as a Carriers, 
 carrier for hire, or for the purpose for which they were received. 
 
 2. All matters in confession and avoidance shall be pleaded specially, as in actions Matters in 
 
 of assumpsit. confession 
 
 Y—In Tresvass and avoid- 
 
 V. J.n trespass. anoe to be 
 
 pleaded 
 
 1. In actions of trespass guare clausum fregit, the close or place in which, &c. specially, 
 must be designated in the declaration by name or abuttals, or other description, in Abuttals 
 failure whereof the defendant may demur specially. JP deolara- 
 
 2. In actions of trespass quare clausum fregit, the plea of not guilty shall oper- Effect of 
 ate as a denial that the defendant committed the trespass alleged in the place men- not guilty 
 tioned, but not as a denial of the plaintiff's possession, or right of possession of that in tres- 
 place, which, if intended to be denied, must be traversed specially. P"^^ 
 
 3. In actions of trespass de bonis asportatis, the plea of not guilty shall operate f"'tres- 
 as a denial of the defendant having committed the trespass alleged by taking or dam- pass 
 aging the goods mentioned, but not of the plaintiff's property therein. de bon. 
 
 4 Where, in an action of trespass quare clausum fregit, the defendant pleads '"^• 
 a right of way with carriages and cattle and on foot in the same plea, and issue is 
 taken thereon, the plea shall be taken distributively ; and if a right of way with ^'SQ' °" 
 cattle, or on foot only, shall be found by the jury, a verdict shall pass for the de- giiniiar 
 fendant in trespass proved as shall be justified by the right of way so found ; and for pleas, 
 the plaintiff in "respect of such of the trespasses as shall not be so justified. 
 
 . 5. And where, in an action of trespass quare clausum fregit, the defendant pleads Common of 
 aright of common of pasture for divers kinds of cattle, ex gr., horses, sheep, oxen, Pasture, 
 and cows, and issue is taken thereon, if a right of common for some particular kind 
 of commonable cattle only be found by the jury, a verdict shall pass for the defend- 
 ant in respect of such of the *trespasses proved as shall be justified by the right of [ *745 ] 
 common so found ; and for the plaintiff in respect of the trespasses which shall not 
 be so justified. 
 
 6. And in all actions in which such right of way or common as aforesaid, or other Com- 
 similar right, is so pleaded that the allegations as to the extent of the right are capa- menoe- 
 ble of being construed distributively, they shall be taken distributively. "*"' j 
 
 Provided nevertheless, that nothing contained in the 5th, 6th, or 7th of the 
 above-mentioned General Rules and Regulations, or in any of the above-mentioned 
 Rules or Regulations relating to pleading in particular actions shall apply to any 
 case in which the declaration shall bear date before the first day of Easter Term 
 next. 
 
 Issues, Judgment, and other Proceedings in actions commenced ly process under 
 2 Win. 2, c. 39, shall be in the several Forms in the Schedule hereunto an- 
 nexed, or to the like effect, mutatis mutandis ; Provided, that, in case of non- 
 compliance, the Court or a judge may give leave to amend. 
 
 No. 1. 
 
 Form of an issue in the King's Bench, Common Pleas, or Exchequer. 
 In the King's Bench ; or. 
 In the Common Pleas ; or. 
 In the Exchequer. 
 
 The [date of declaration] day of , in the year of our Lord, 
 
 18—. 
 
 [ Venue], — A. B., by E. F., his attorney, \or, in his own proper person, or by E 
 
W.4. 
 
 745 APPENDIX. 
 
 Beg. Gen. F., who is admitted by the Corat here to prosecute for the said A. B., who is an infant 
 Hil.^T. 4 -(^ithin the age of twenty-one years, as the next friend of the said -4. B., as the 
 case may he\, complains of G. £>., who has been summoned to answer the said A. 
 B., [or, arrested or detained in custody] by virtue [or, served with a copy, as the 
 
 case may he], of a writ issued on [date of first writ] the day of in the 
 
 year of our Lord 18 — , out of the Court of our Lord the King, before the king him- 
 self at Westminster, [or, out of the Court of our Lord the King, before his Justices 
 at Westminster, [or, out of the Court of our Lord the King, before the Barons of 
 his Exchequer at Westminster, as the case may be] ; For that 
 
 [Copy the declaration from these words to the end, and the plea and the subse- 
 quent pleadings to the joinder of issue']. 
 
 Thereupon the SheriflF is. commanded that he cause to eomo here, on the ^ day 
 
 of , twelve, &c., by whom, &c., and who neither, &o., to recognize, &c., be- 
 cause as well, &e. 
 
 No. 2. 
 
 Form of Nisi Prius Record in the King's Bench, Common Pleas, or JL'xchequer. 
 
 [The placita are to he omitted. — Copy the issue to the end of the award of 
 the venire, and proceed as follows :] 
 
 Afterwards, on the [teste of distringas or habeas corpora] day of , in the 
 
 year , the jury between the parties aforesaid is respited here until t"r-.e [retMm 
 
 day of distringas or habeas corpora] day of unless shall first come on 
 
 the [first day of sittings or commission day of assizes] day of — =— at , ac- 
 cording to the form of the statute in such case made and provided for default of the 
 jurors, because none of them did appear ; therefore let the sheriff have the bodies (rf 
 the said jurors accordingly. 
 
 [Thepostea is to be in the usual form.] 
 
 [ *746 ] 
 
 *No. 3. 
 Form of judgment for the plmntiff %n assumpsit. 
 
 [ Copy the issue to the end of the award of the venire, and proceed as fal- 
 lows :] 
 
 Afterwards, the jxiry between the parties is respited until the [return of the dis- 
 tringas or habeas corpora"] day of , unless shall first come on the [day 
 
 of Sittings or Nisi Prius] day of , at — . — , according to the form of the stat- 
 ute in that case made and provided for default of the jurors, because none of them 
 did appear. 
 
 Afterwards, on the [day of signing final jttdg'me'at] &&j oi come the par- 
 ties aforesaid, by their 'respective attomies aforesaid,] or as the case may he] • sand 
 , before whom the said issue was tiied, hath sent hitherto his record, had be- 
 fore him, in these words : 
 
 [ Copy postea. 
 
 Therefore, it is considered that the said A. B^ do recover, against the said C B., 
 his said damages, costs, and charges, by the jurors aforesaid, in form aforesaid, as-. 
 
 sessed ; and also for his costs and charges, by the Court here adjudged of 
 
 increase to the said A. B., with his assent, which said damages, costs, and charges,, 
 in the whole amount to , and the said C. J), in mercy, &o. 
 
APPENDIX. 746 
 
 IKeg. Gen. 
 HU. T. 4 
 W. 4. 
 
 No. 4. 
 Form of the issue when it is directed to he tried hy the Sheriff. 
 
 {After the joinder of an issue proceed as follows :] 
 
 And forasmuch as the sum sought to he recovered in this suit, and indorsed on 
 the said writ of summons, does not exceed £20, hereupon on the [teste of writ of 
 
 trial] day of — , in the year , pursuant to the statute in that case made and 
 
 provided, the sheriiF \or, the judge of , being a Court of Record for the recov- 
 ery of debt in the said county, as the case may be] is commanded that he summon 
 twelve, &c., who neither, &c., who shall be sworn truly to try the issud above joined 
 between the parties aforesaid, and that he proceed to try such issue accordingly ; and 
 when the same shall have been tried, that he make known to the Court here what 
 shall have been done by virtue of the writ of our Lord the King to him in that be- 
 half directed, with the finding of the jury thereon indorsed, on the day of 
 
 , &o. 
 
 No. 5. 
 
 Forms of writ of Trial. 
 
 William the Fourth, by, &c., to the Sheriff of our county of — ^, [or, to the judge 
 
 of , being a Court of Eeeord for the Recovery of Debt, in our County of 
 
 , as the case may be.] 
 
 Whereas A. B., in our Court- before us at Westminster [or in our Court before 
 our justices at Westminster, or, in our Court before the barons of our Exchequer at 
 Westminster, as the case moy he], on the \date of first writ of summons'] day 
 
 of last, impleaded C J), in an action on promises [or as the case may he] : 
 
 for that whereas one, &c. [here recite the declaratian as in a writ of inquiry], and 
 
 thereupon he brought suit. And whereas the defendant; on the ^ day of 
 
 last, by — ■ — , his attorney, \or as the case may be] , came into our said [here recite 
 the plea and pleadings to the joinder of issue] and the plaintiff did the like. And 
 whereas the sum sought to be recovered in the said action, and indorsed on the writ 
 of summons therein, does not exceed £20 ; and it is fitting that the • issue above 
 joined should be tried before you the said sheriff of ■' — •^, {or judge as the case may 
 be] : we therefore, pursuant to the statute in such case made and provided, command 
 you that you do summon twelve free and lawful men of your county, duly qualified 
 according to law, who are in nowise akin to the plaintiff or to the defendant, who 
 shall be sworn *truly to try the said issue joined between the parties aforesaid, and [ *747 ] 
 that you proceed to try such issue accordingly ; and *hen the same shall have been 
 tried in manner aforesaid, we command you that you ma,ke known to us at Westmin- 
 ster {or, to the barons of our said Exchequer, as the case may be] , what shall have 
 been done by virtue of this writ, with the finding of the jury hereon indorsed, on the 
 
 day of next. 
 
 Witness, , at Westminster, the day of — — , in the year of our. 
 
 No. 6. 
 
 Form of Indorsement fthereon of the Verdict. 
 
 AfterWardsv on thte [day of trial] daVof '-^—, in the year =.— — , before me sher- 
 iff of the county of — =^ [o*-, judge of the Court of- ], came as well the with- 
 
747 APPENDIX. 
 
 Beg. Gen. in-named plaintiif as the within-named defendant, by their respective attorneys with- 
 Hil. T. 4 in.named [or, as the case may be], and the jurors of the jury by iiie duly sum- 
 moned, as within commanded, also came, and "being duly sworn to try the said is- 
 sue within mentioned on their oaths, said, that . 
 
 No. 7. 
 Form of Indorsement thereon, in case a Nonsuit takes place. 
 
 {After the words " duly sworn to try the issue within mentioned " proceed as fol- 
 lows :] 
 
 And were ready to give their verdict in that behalf; but the said A. B. being 
 solemnly called came not, nor did he further prosecute his said suit against the said 
 C. D. 
 
 No. 8. 
 
 Form of judgment for the Plaintiff after Trial by the Sheriff. 
 
 \ Copy the issue and proceed as follows :\ 
 
 Afterwards, on the [day of signing judgment] day of , in the year 
 
 came the parties aforesaid, by their respective attornies cforesaid, [or, as the case 
 may he,] arid the said sheriff [or, judge as the case may Se], 'before whom the said 
 issue came on to be tried, hath sent hither the said last mentioned writ, with an in- 
 dorsement thereon, which said indorsement is in these words : to wit : — 
 
 [ Copy the Indorsement.] 
 
 Therefore it is considered, &e. [in the same form as before.] 
 
INDEX. 
 
 ABATEMENT, 
 
 in respect to the parties to a suit, (see title Parties. ) 
 
 by nonjoinder or misjoinder, how to be objected to, 16, see Misjoinder 
 oi a, plaintiff , in an action on a contract, 13, 452 
 in an action for a tort, 66 
 in an action by executors or administrators, or as- 
 signees, 20, 22 
 in an action by wife alone, 33, 449 
 of a defendant, in an action on a contract, 45 
 see in general, 703 
 ^ plea and affidavit must show residence of omitted 
 
 party within jurisdiction of Court, 46, 452, 
 453, 716, 717 
 carrier cannot plead nonjoinder in abatement 
 since 11 Geo. 4 and 1 Will. 4, c. 68, s. 5j 47 
 in an action for a tort, 86 
 by death, 
 
 of one of several plaintiffs or defendants pending the suit, 19, 448 
 in actions in form ex contractu, 
 
 surviving obligees, &o. to sue, 19, 448 
 death of her husband or wife, plaintiff, 31, 
 
 32 
 surviving obligor, &c. to be sued, 50 
 death of husband or wife, defendant, 58 
 in actions in form ex delicto, ' 
 
 survivor to sue, 67, 448 
 death of husband or wife, plaintiff, 75 
 death of husband or wife, defendant, 92, 93 
 of a sole plaintiff pending the action, 448 
 
 rule of actio personalis moritur cum persona, 68, 89 
 altered by 3 & 4 W. 4, c. 52, sect. 2, 70, 715 
 ABATEMENT, PLEAS IN, (As to pleas to jurisdiction, see title Jurisdiction.) 
 general nature of, and difference between them and pleas in bar, 446, 457 
 what matter may be pleaded in abatement or in baa:, ib. 
 division of, 
 
 Relating to the person, 448 
 of the plaintiff, 
 
 no such person in existence, 448 
 
 death of, (see titles Abatement. Death,) ib, 
 
 alien enemy, ib. 
 
 attainted of treason or felony, ib. 
 
 outlawed, ib. 
 
 under z, premunire, 448 
 
 excommunicated, ib. 
 
 Vol. I, 94 
 
760 INDEX. 
 
 ABATEMENTS, PLEAS m~{continued.) 
 
 an infant suing by attorney, ib. 
 bankruptcy, 23, 448 
 coverture, (see title Coverture,) 449 
 of the defendant, 
 
 coverture, (see title Coverture, ) 449 
 infancy, (see title infancy,) ib. 
 Relating to the count, 450 
 
 variance between writ and count no longer pleadable, 431, 450 
 Relating to the tcrit or bill, 450 
 
 why so called, and their effect, ib. 
 
 to the form of the writ, now abolished, 451 
 
 variance or defect in writ not now pleadable, 431 
 matters pleadable, only the intrinsic or dehors, 451 
 want of venue, 279 . . 
 
 mistake in addition, when not pleadable by a peer, 467 
 misnomer, (see title Misnomer,) abolished and substituted reme- 
 dy, 451, 452 ; see Appendix, 717 
 nonjoinder or misjoinder, when and how to be taken advantage of, 
 
 452, 703, 716, 717 
 plaintiffs not married, ib. 
 one of plaintiffs fictitious or dead, ib. 
 
 another joint contractor, &c. not sued, 46, 452, 453, 716, 717 
 another executor or administrator not sued, ib. 51, 457 
 officer or attorney improperly sued, 453 
 to the action of the writ, ib. 
 
 action misconceived as to form, 453 
 action prematurely brought, ib. 
 another depending for same cause, 454 
 replication to it, ib. 
 Qualities of, S^c. 454, 457 
 
 may be to the whole or part of the declaration, 458 
 
 may demur to part, and plead in bar or abatement to other part, ib. 
 
 but cannot plead in abatement and bar to same matter, ib. 
 
 one defendant may plead in abatement, apother in bar, 459 
 
 in case of misjoinder, &c. it is now more usual to demur, ib. 
 
 when the plea should only be to a part of the declaration, ib. 
 
 prayer of the plea, ib. 
 
 certainty and accuracy required in framing pleas in abatement, 457 
 
 must give the plaintiff a better writ or bill, 446, 457 
 
 this is the criterion to distinguish it from a plea in bar, ib. 
 general requisites and form of, 454 
 as to conclusion, 454, 469 
 venue not necessary, 478 
 duplicity, what , objectionable, 458, 532 
 cannot plead two outlawries, &c. 532 
 
 Cannot plead in abatement and bar to the same matter, ib. 458 
 misnomer of christian and surname pleadable in one plea, ib. 
 Form and general requisites of, 454 
 title of the plea, 455 
 
 when may be with a special imparlance, 437, 455 
 of what term, 455 
 consequences of mistake, 456 
 aided if replied to, ib. 
 present practice as to time, ib, 
 names of parties in the margin, ib. 
 commencement of the plea, ib. 
 
 accuracy required in statement cS, ik 462 
 
INDEX. 761 
 
 ABATEMENT, PLEAS IN— {continued.) 
 defendant's appearance, 456 
 when it must be in person, ib. 
 when it may be by attorney, ib. 
 when by guardian, 457 
 
 the defense, whether full or half, 428, 429, 457 
 prayer of judgment at the beginning when proper; 460 
 consequence of wrong commencement, 460, 462 
 body of the plea, 
 
 accuracy and certainty requisite, (see title Qualities,) 467 
 conclusion of the plea, 460 
 
 very material and great accuracy requisite, 460 [ment, ib, 
 
 consequence of a plea containing matter in bar concluding in abater 
 of a plea concluding in bar, ib. 
 of a plea of privilege of person, 460 
 of a plea to the disability of the person, 461. 
 of a plea of coverture, ib. 
 
 of a plea of excommunication or other temporary disability, ib. 
 of a plea to the writ and declaration, 461 
 of a plea to the bill and declaration, ib. 
 when plea is confined to part only, 458, 459 
 Affidavit of ts.uth, 
 
 when requisite at common law, 462 
 when required by statute, ib. 
 operation and extent of the statute, ib. 
 who to be made by, 463 
 at what time it may be made, ib. 
 form and requisites of it, ib. 
 consequence of omission or defect in, ib. 
 Of Pleas of Nonjoinder in particular, 453, 467, 468 (see title Nonjoinder.) 
 Replications, &c. to, 
 
 to a plea of misnomer, 463 
 may amend, ib. 
 
 or enter a cassetur billa or hreve, ib. 
 to a plea of nonjoinder, if true, must proceed de novo, 464 
 must enter cassetur before commencement of fresh action, ib. 454 
 when the plaintiff should reply, ib. 
 when the 'plaintiff should demur, 465 
 when he may sign judgment, &c. 456, 463 
 when reply appearance as estoppel, 245, 464 
 form and requisites of, 
 
 commencement and conclusion pf, 464 
 prayer of judgment, ib. 
 Issue, verdict, and judgment on, ib. 
 Demurrers in case of (see title Demurrer.) 
 to a plea or replication, 
 
 form of demurrer to plea, 465, 664 
 may be general in all cases, 465 
 Joinder in demurrer, form of, ib. 
 Argument of, no objection on, to declaration, when, ib. _ 
 Judgment on, 466 
 Costs, &c. 466 to 468 
 
 Pleas oipuis darrein continuance, (see that title,) 657 to 661 
 ABSENCE OF DEFENDANT, . 
 
 limitation of action when beyond seas, 716 
 ABOLITION OF HOLIDAYS, 
 
 enactment respecting, 723 
 
762 INDEX. 
 
 ABSOLUTE EIGHTS, 
 
 when not necessary to he stated in pleading, 221 
 injury tp, (see titles Case. Trespass.) 
 ABSQUE HOC, (see title Traverse.) 
 
 language of a traverse, 620 
 ABSQUE TALI CAUSA. 
 
 the meaning of, explained, and necessity for, 606, 610 
 ABUTTALS, 
 
 Reg. Gen. Hil. T. 4 W. 4, respecting statement of, 279, 395, 744 
 when must be stated, 260, 279, 376 
 
 statement of, in a declaration, when advisable, 595, and note (d) 
 new assignment, 595, 628, &c. 634, 637 
 plea to, &c. 639 
 ACCEPTOR, 
 
 Forms of declaration against, by Reg. Gen. Hil. T. 4 W. 4, 724, &c. 
 ACCIDENT, 
 
 liability, in case of, 77, 78, 128 to 130 
 plea that release destroyed by, when bad, 541, note (J) 
 ACCOMMODATION ACCEPTOR, \ 
 
 when he must declare specially, 350, 351 
 ACCORD AND SATISFACTION. 
 
 Reg. Gen. HU. T. 4 W. 4, respecting, 740 
 
 simple contract merged by specialty, 105 
 
 plea of, must be pleaded specially, 478, 482, 485, 486, 490, 506 
 
 might formerly be given in evidence in assumpsit or debt on simple 
 
 contract under general issue, 578, 482 
 must be pleaded in an action on a specialty, 482, 485 
 when no plea in an action on a specialty, 485, note ( c. ) 
 in an action on record, 585, 586 
 in covenant, 486, 487 
 
 must be pleaded in actions on the case, 490 
 must be pleaded in trespass, ib. 500, 506 
 replications to, in general, 582, 598, 616, 618 
 in assumpsit, 582 
 in case, 590 
 in trespass, 598 
 ACCOUNT, 
 
 assumpsit for not rendering, 101, 102 
 
 case lies for not rendering, 135 
 
 difficulty of investigating account, no objection to action of assumpsit on, 192 
 
 stated, assumpsit lies on, when, &c. 358 
 
 partners may sue each other on, 39 
 count of, in assumpsit, 358 
 use of, &c. ib. 
 
 by or against executors, &c. 359 
 action of, 39, 488 
 ACCOUNT STATED, 
 
 when advisable to insert count on, 358, 359 
 what evidence will support it, ib. 
 what admission by defendant sufficient, 359 
 in the case of growing crops, ib. 
 Reg. Gen. Hil. T. 4 W. 4, respecting, ib. 
 when should not be added, ib. 
 ACKNOWLEDGMENT, 
 
 limitation of action in cases of, 716 
 ACQUITTED DEFENDANT, 
 costs now payable to, 88 
 
INDEX. 753 
 
 ACTIO ACCREVIT, &c. 
 
 when this allegation is unnecessary in debt, 362 
 
 in debt on penal statute, 373 
 ACTIONEM NON, 
 
 now unnecessary in a plea, 554, 
 ACTIO NON, &3. 
 
 actio non habere debet now unnecessary, 552, 554 
 relates to issuing writ, ib. 
 whea onerari non, &o. proper, ib. 
 
 .when formerly proper as to the further maintenance of action, ib. 
 not proper in pleas in abatement, 460, 461 
 ACTIO PERSONALIS MOEITUR CUM PERSONA, 
 when executor, &c. may sue for a tort, 20, 70 
 
 their liability for, ib. 
 maxim and rules relating to, in genoraI,68, 89 
 does not apply when the action is in form ex contractu, ib. 
 effect of death, (see titles Abatement. Death.^ 
 
 1st. of the party injured, in ease of an injury, 68 
 to the person, no action lies, ib. 
 to personal property, action lies, and when, 68, 69 
 to real property, when action lies, 69, 70 
 2dly, of the wrong-doer, and general rule as to injuries, 89 
 to the person, 90 
 to personal property, ib. 
 to real property, 91 
 alteration in the law by 8 te 4 W. 4, c. 42, s. 2, 70, 715 
 ACTION, PREMATURE, (see title Auter Action Pendent.) 
 plea of, in abatement, 453 
 second action for same cause, 198 
 ACTIONS. 
 
 by and against whom to be brought, (see title Parties Throughout.') 
 distinction between action in form ex contractu and ex delicto, 86, 87, 89, 97, 
 
 9i8 
 form of action misconceived, and consequences; 197 
 prematurely brought, plea of, &c. 453 
 
 another action depending for same cause, pica of, in abatement, 454 
 
 in bar, ib. 
 
 replication to, &c. ib. 
 when an action lies in general, and form of, 94 
 forms of action, 
 
 origin and history of, ib. » 
 
 of new forms, 95, 96 
 
 established forms to be observed, 96, 97, note (<) 
 division of 
 
 1st, ex contractu. 
 
 Assumpsit, (see title Assumpsit,) 97 to 108 
 Debt, (see title Debt,) 108 to 115 
 - Covenant, (see title Covena7it,) 115 to 121 
 Detinue, (see title Detinue,) 121 to 125 
 2dly, ex delicto, 
 
 nature of injuries ex delicto as they affect the forms of ac- 
 tion, 125 
 
 material distinctions between injuries with or with- 
 out force, ib. 
 
 immediate or only consequential, 126 
 what injuries are forcible, 125 
 
 what immediate or consequential, 126 
 naturs of, legality of original act, when not material, 129 
 
764 INDEX. 
 
 ACTIONS,— (continued.) 
 
 intent, when not material, 82, 129 
 
 summary of points, on which the form of action may depend, 
 
 131, 132 
 Case, (see title Case,) 132 to 146 
 Trover, (see title Trover,) 146 to 162 
 Replevin, (see title Beplevin,) 162 to 166 
 Trespass, (see title Trespass,) 166 to 187 
 Ejectment, (see title Ejectment,) 187 to 193 
 action for mesne profits, 193 to 196 
 Consequences of mistake in form of action, and mode of objecting to, 197 
 if the objection appears on the face of the declaration, 197 
 if the objection does not appear on the face of the declaration, 198 
 plaintiff may proceed in a fresh action, when, ib. 
 Of joinder oi forms of action, (see title Joinder of Actions,) 199 to 203 
 Of joinder oi rights of action, (see title Joinder of Actions,) 203 to 206 
 Consequences of misjoinder, 205 
 
 Of election of actions, (see title Election of Actions,) 207 to 212 
 AD AUDIENDUM EERORES, 
 no scire facias necessary, 735 
 AD DAMNUM, (see title Damage,) 
 ADDITIONE. Statute of, 
 
 not necessary to a declaration, 449 
 when not pleadable in abatement, 450 
 ADMINISTRATION, 
 
 how stated, and profert of it, 420 
 oyer of, when to be craved, 430, 431 
 plea of grant of, since last continuance, 658 
 validity of, how disputed, 489 
 ADMINISTRATOR, (see title Parties and Executor,) 
 ADMINISTRATRIX, 
 
 coverture of, 30, 31 
 ADMISSION, (see title Confession and Avoidance,) 525, 622 
 
 power of judges to make regulations respecting admission of written documents, 
 717 
 AVOWSON, 
 
 ejectment does not lie for, 188 
 AFFIDAVIT, 
 
 of truth of pleas of jurisdiction, 445 
 
 of dilatory pleas, (see title Abatement,) 462 
 
 enactment of 4 Anns, c. 16, s. 4, respecting, 702 [uance,) 738 
 
 of pleas jOMM darrein continuance, (see title Puis Darrein Contin- 
 to hold to bail must corrospoad with declaration, 254, 255 
 of justification of bail, 728 
 
 of residence of omitted defendant in a plea of nonjoinder, 467 
 commissions to take in Scotland and Ireland, 723 
 AGENT, (see titles Parties. Master and Servant. Servant. ) 
 as to his suing on a contract, 6 
 ^ to his being sued on a contract, 34 
 
 provisional assignee when not liable for fraud, of, 55, note (i) 
 of government, &c. when liable on contract, 37 
 when may sue for a tort, 62, 151 
 as to his being sued for a tort, 79, 80, 83 
 
 when trover lies against, 84 
 not liable for act of sub-agent, when, 85 
 selling at under price not liable in trover, 156 
 intermediate or sub-agent when liable, 86 
 non assumpsit by, what to put in issue, 743 
 
INDEX. 756 
 
 AGGRAVATION, 
 
 matters in, should be new assigned, when, (see title NfiB Assignment,) 627, 
 
 628, 632, 633 and note (m), 685 
 not to be traversed, 612 
 AGISTER, 
 
 of cattle, may sue for injuries to, 61, 62, 161 
 AGREEMENT, (see title Assumpsit. Contract.) 
 ALIA ENORMIA, 
 
 statement of, in trespass, and evidence under, 397 
 ALIAS DICTUS, 
 
 as to declaring by, 245, 246, 256 
 ALIAS WRITS, 
 
 may be directed into other counties, 729 
 form of, ib. 
 ALIEN, 
 
 feme covert, when to be joined in an action as a plaintiflf", 30, note (q.) 
 
 or sued as a defendant, 58 
 residing abroad, replication that husband is, 58, 449 
 enemy, when pleadable in abatement or bar, 446, 448 
 when available under non assumpsit, ib. 474 
 when it should be pleaded, 479 
 certainty requisite in plea, 234 
 replication to, 581 
 ALLEGATION, (see title Averment.) 
 ALLOTMENT, 
 
 when trespass lies after, 173, 174 
 ALTERNATIVE, 
 
 pleading not allowed, 236, 237, 535, 613, 614 
 contract in the, must be truly described, 308 
 contract, breach of, how assigned, 333 
 ALTERNATIVE ALLEGATION, ' 
 
 in case of policy of insurance, 226, 237 
 AMBIGUITY, 
 
 in pleading not allowed, 236, note (k), (and see title Certaintt/.^ 
 what deemed so in trespass, 376 
 AMENDMENT, 
 
 of writs, when or not allowed, 250 
 when plaintiff mistaken in form of action, 197 
 allowed in penal action, 198 
 of declaration improperly entitled, 264, 265 
 of declaration when plea in abatement, 463 to 466 
 by striking out a plaintiff, 13, note (a;) 
 of plea in abatement, 465 
 
 at the trial, of variance in setting out written instruments, 819, 719 
 statutes respecting, 701 to 704 
 AMENDS, 
 
 tender of under 21 Jao. 1, c. 16, s. 5, 506, (see title Tender.) 
 AMERCIAMENT, 
 
 debt lies for, 109 
 ANCIENT DEMESNE, 
 plea of, 443 
 how to reply to, 445 
 ANCIENT LIGHTS, 
 
 remedy for obstructing of, 140, 142 
 tenant or reversioner may sue, 140, 142 
 who to be sued for, 83 
 declaration for disturbance ofi 381 
 
766 INDEX. 
 
 ANIMALS, (see title Damage Feasant.') 
 
 escape of plaintiff's, when defendant liable, 142 
 of defendant's, when, ib. 
 when action lies for injuries to, 168 
 form of action for injury to, ib. 
 who and when party liable for injuries by, 82, 83 
 when action lies for injuries by, ib. 168, 181 
 form of action for keeping mischievous, 133 
 declaration for such keeping, ib. 
 cattle how described, 377, 378, note (g-) 
 ANNUITY AND ANNUITY DEED, 
 
 when action does not lie for arrears, 110 
 if deed void assumpsit lies, when, 105 
 debt on, 410 
 covenant on, 116 
 
 replication, &o. to plead of no memorial, &c. 584 
 instances of departure, 645, 646 
 APPEARANCE of DEFENDANT, 
 
 how described in a plea, 427, 428, 551 
 in person, ib. 
 by attorney, ib. 
 
 in a different name to that sued by, 427 
 by feme covert, 428 
 by an infant, ib. 
 in pleas to the jurisdiction, 456 
 must be in the name of only one attorney, 428 
 how to be made for defendant to avail himself of misnomer, 244 to 248 
 how to be enforced by distringas by 2 W. 4, c. 30, s. 3 and 16, 705, 708 
 forms of entering appearance, 7l0 
 APPENDIX, 
 
 list of statutes in, affecting pleading, &c. 701 to 723 
 4 Anne, c. 16, 701 
 9 Geo. 4, c. 14, 702 
 9 Geo. 4, c. 15, 702 
 2 W. 4, c. 39, ib. 
 
 2 & 3 W. 4, c. 71, 712 
 
 3 & 4 W. 4, c. 42, 714 
 
 ' of reguloe generales, 723 to 747 
 
 Trin. T, 1 W. 4, 723 
 1 W. 4, 727 
 Mich. T. 3 W. 4, 729 
 Hil. T. 3 W. 4, 733 
 Trin. T. 3 W. 4, ib. 
 EU. T. 4 W. 4, ib. 
 4 W. 4, 738 
 APPEENTICE AKD APPRENTICE DEED, 
 
 covenant, usual remedy for breach of indenture, 116 
 
 action does not lie against infant on deed, ib. 
 
 form of remedy for injury to master's right in, 134, 167 
 
 master may sue in assumpsit, for work of, where enticed away, 100 
 ARBITRAMENT, (see title Award.) 
 ARBITRATION, 
 
 submission to, when not recoverable, 722 
 ARBITRATION BOND, (see title Award.) 
 ARBITRATORS, 
 
 power of, to administer oath, 723 
 ARGUMENT, 
 
 delivety of paper books before, 734 
 
INDBX. 767 
 
 ARGmiLENT— (continued.) 
 
 proceedings of in error, need not be entered before, 733 
 ARGUMENTATIVE PLEADING, 
 
 not allowed in pleading, 236, 287, and notes, (see title Certainty.) 
 in declaration, ib. 
 in plea, 539 
 in replication, 648, 649 
 AEREAES OP RENT, 
 
 when executors may distrain for, 722 
 ARREST, 
 
 trespass for arrest in wrong name, 246, 246 
 when bail bond void, ib. 
 of one of several defendants, 730 
 commencement of declaration in such case, ib. 73l 
 ASSAULT AND BATTERS, (see title Trespass.) 
 when justifiable, (see title Trespass,) 16 7tol82 
 action for, lies against two persons jointly, 15 
 aliierhj two, 64 
 remedy for, 167 
 pleas, 501, 506 
 
 replication to pleas justifying, 692 
 new assignments in action for, 626, 632, 635, 592, 593 
 ASSIGNEE, (see titles 5a?i^r2<p?«. Parties.) 
 
 of a chose in action, ex contractu, when he may sue, 15 to 19, 23, n. (v) 
 when he may sue on a new consideration, &e. 15, 16 
 when he cannot be sued, 47 to 50 
 an action ex delicto, when he may sue, 66 
 of an estate in land, 
 
 when he may sue on contract relating to, 16 to 18 
 of a part of reversion, is within 32 H. 8, c. 34, 16, 17 
 when cannot bring ejectment, 17, note (A) 
 how to declare at suit of and against, 235, 363, 364, 368, 369 
 when he may be sued on contract relating to, 48, 49 
 of lessee, may be sued in debt or covenant, 110, 112, 117 
 when assignee of part only, ib. 
 
 covenant lies against, where a partial eviction, when, 117 
 when he may sue for a tort, 66 
 when he may be sued for a tort, 89 
 of a bankrupt, 
 
 the general eflfect of the bankrupt act on contract with bankrupt, 22 
 when assignees should sue on contract, ib. 
 
 can only sue on contracts in which bankrupt had a beneficial interest, 25 
 pro-nsional assignee, 24 
 ' in case of removal of assignee, ib. 
 
 joinder in actions, by and against, 23, 24, 54, 202, 203 
 joinder with solvent partner, 24, 25 
 on contract made since bankruptfcy, 25, 26 
 consequence of all not joining, 23 
 when suit does not abate, 23, note (x) 
 how to sue, 25 
 trover by, 154, 127 
 
 may waive tort, and sue in assumpsit, when, 100, 209 
 when should not, ib. 
 when may declare in their own right, 25 
 under several commissions, how to sue, 24 
 when they may sue for a tort, 71 
 when they may be sued,. 65, 91, 154 
 Vol. I. 95 
 
*768 INDEX. 
 
 ASSIGNEE — of a bankrupt — (continued.) 
 
 remedy against, for illegaHaking of goods, 154 
 when bankrupt may sue on contiiact, 22, 25, 26 
 for a tort, 71 
 of an insolvent, 
 
 action by assignees on contract of insolvent, 2G 
 for tort to his property, 71 
 on Lord's Act, 23, 56 
 action by insolvent, 28, 72 
 against him, 55, 92 
 ASSIGNMENT, (see titles Assignee. New Assignment.) 
 
 of breaches, (see title Breach.) < 
 
 in replication, 565 to 588 
 of debt, where two debtors, &c. 16, 47 
 ASSIGNOR, (see titles Assignee. Landlord and Tenant. Parties.) 
 ASSUMPSIT, ACTION OF, 
 
 parties to, who to be plaintiflf and *ho defendant, (see titles Parties.') 
 
 definition and general object of it, 938 
 
 history of it, 99 
 
 when it lies in general, ib. 
 
 upon simple contracts not under seal, 99 to 106 
 upon contracts implied, ib. 
 where there has been no contract, 107, 352 
 trhen the only remedy, 
 
 against an executor or administrator on simple contract, 102 
 for money payable by instalments, where whole not due, 102, 103 
 on collateral undertaking, 103 
 on a bill or note where there is no privity, ib. 
 
 on an award not for payment of money, and where there is no bond, ib. 
 when not sustainable, and exceptions, 103 to 107 
 not on a deed or record, 103 
 not where there originally was a valid deed or record, ib. 
 
 exceptions, where defendant cannot be sued on" the deed, 103, 105 
 
 where deed not executed by defendant, ib. [103, 104 
 
 suing owner of ship in assumpsit, though deed with master, 
 for rent, where there is no demise, 104 
 where there has been a deed of separate maintenance, ib. 
 where the deed is invalid, ib. 
 where there has been a new contract, ib. 
 on a contract in consideration of forbearance, ib. 
 on an account stated between partners, 104, 105, S9 
 where there has been a fresh agreement, 105 
 on a contract unconnected with the specialty, ib. 
 not where a higher security has been since taken, ib. 
 exceptions where fresh deed, &c. invalid, ib. 
 bond for rent no extinguishment, ib. 
 not a mere collateral security, ib. 
 it lies for rent, &c. issuing out of realty, when, ib. 
 on a stfbtute, 106 
 
 on a, judgment of a court not of record, ib. 
 on Irish Judgment or decree of court of equity, ib. 
 when not by a partner against his co-partner, 39 
 when not by or against a corporation, 106 
 not in case of illegal distresses, &c. 100, 107, 138 
 when not advisable to sue in, 107, 207 to 209 
 when case a concurrent remedy with, 134 
 when advisable to sue in case in preference to, ib. 207 to 209 
 when not so advisable, ib. 107 ' 
 
INDEX. 759 
 
 ASSUMPSIT, ACTION 0¥— (continued.) 
 Pleadings, &c. in, in genefal, 
 
 the declaration, 107 
 pleas, 107, 108, 475 to 481, 513, 514 
 jiidgment, 108 
 costs, lb. 
 Dbolaeation, 
 
 title of court, (see title Declaration,) 263 
 
 of term, (see title Declaration,) 262 to 266 
 
 venue in (see title Venue,) 266 to 280 
 
 commencement of (see title Declaration,) 280 to 287 
 
 cause of aGtion, statement of, in, 287 to 360 
 Special Counts in general, 289 
 
 1, inducement, 
 
 defined, 290 to 293 
 
 utility, ib. 
 
 form and requisites of, and certainty in, 291 
 
 when and how far to be proved as laid, 291, 292 
 
 2, consideration, statementof, 
 
 1, what and when to be stated, 293, 294 
 
 fiuluro in part, 295, 300 
 
 how to be stated in general, ib, 
 
 several descriptions, and how pleaded, 
 
 1, executed, 295 
 
 2, executory, 296 
 
 3, concurrent or mutual, 297 
 
 4, continuing, ib. 
 
 2, of variances in stating the consideration, 298 to 301 
 defect of consideration, and how to be objected to, &c. 801 
 
 3, promise or contract, statement of, 301 to 320 
 
 1, how to be stated, 301 to 305 
 
 to be stated in words, or according to legal effect, 305 
 
 super se assumpsit proper in all cases, 301 
 
 certainty, 302 
 
 by and to whom, 302, 307 
 
 sufficient to show that part on which the action is found' 
 ed, 304, 309, 310, 314, 317 
 need not show that contract was in writing, 
 
 2, variances in stating the promise or contract, 
 
 in general, 305; 6 
 
 statement according to legal effect, 306, 312 
 or in the wordg of instruments, ib. 
 misdescription of parties to contract, 307 
 blending two contracts in one count, 308 
 in stating alternative or conditional contract, ib. 
 how to set out contract with exception or proviso, 309 
 mis-statement ol part of contract, 310 
 variance as to time of performing, 311 
 instances of literal errors, 312 
 
 statement contra,ry to fegia? intendment, ib. [eration, 313 
 instances of statement being in accordance with legal op- 
 immaterial omissions, coUatei'Jil provisions, &c. 314 
 stating jtjfflrt of promise, 317 [struments, 319 
 
 amendment at the trial of variance in stating written iur 
 sciKcets, 317, 318 
 4, averments, (see title Averments,") 320 to 332 
 defined, 320 
 
760 INDEX. 
 
 ASSUMPSIT, ACTION 0¥— (continued.) 
 Declakation — {continued. ) 
 
 Special Counts — \continued.) 
 
 1st, of the performance, &c. of a condition precedent, 320 
 not necessary when consideration was executed, 320 
 necessary where consideration was executory, ib. 
 when necessary in ease of mutual conditions, 321 
 general rules as to averments, and when necessary to 
 
 aver performance or excuse of, 320 to 325 , 
 
 for form of averment, 324 
 of performance, ib. 
 of excuse of performance, 326 
 of readiness to perform, ib. 
 consequences of mistake, 327 
 2d, of defendant's notice of facts alleged, 327. 328 
 when necessary, 328 
 how to be stated, ib. 
 consequences of mistake, 329 
 3d, of a request on defendant, ib. 
 
 when necessary to be stated, ib. 830 
 form of stating, 331 
 consequences of omission, ib. 
 5, Breach, (see title Breach.) 
 
 necessary to be stated, 332 
 
 how in case of a mere money demand, ib. 
 
 in special counts, ib. 
 
 form of, 
 
 should in substance accord with contract, 333 
 what sufficient, ib. 
 
 where the contract was in the disjunctive, 334 
 if too large or too limited, bad, 334, 335 
 injudicious to be too narrow, 335 
 should be certain and particular, 836 
 sewra^ breaches when they may be assigned, ib. 
 of the allegation of defendant's fraudulent intent, 
 insufficiency or -omission of breach, ib. [337 
 6, damages, (see title Damages.^ 
 what necessary to be stated, 888 
 
 damages necessarily incident need not, ib. 
 but special damage must, ib. 
 too abundant a statement not prejudicial, 839 
 how to be stated, ib. 
 consequences of mis-statement, ib. 
 Common Counts, 369 
 general utility of, ib. 
 are for money demands, 340, 342 
 the indebitatus assumpsit count, 341 
 the quantum meruit, now virtually abolished, ib. 
 the quantum valebant, now virtually abolished, ib. 
 the account stated, 342 
 common breach, ib. 
 history of these counts, and when in general sustainable, 
 
 340, 342, 343 
 general form and requisites of, 342, 343 
 
 when relating to real property, use and occupation &o. 343 
 to goods sold, 345 to 348 
 to work and personal services, 348, 349 
 to money lent, 349 
 
INDEX. 761 
 
 ASSUMPSIT, ACTION 0'E—(contmued.) 
 Common Counts — (continued.) 
 
 to money paid, 350 
 
 to money had and received, 351 to 356 
 to interest, 356 
 
 enactment of 3 & 4 W. 4, o. 42, s. 28, 
 respecting interest, 256 
 when relating to account stated, 358 
 
 by and against executors and assignees, &c. 359, 360 
 Joinder of several counts in, 408 
 with other forms of action, 199 
 Eeg. Gen. respecting declarations in, 723, &c. 
 Pleas in — (see title Pkas.) 
 
 of the several pleas in, before and since Reg. Gen. Hil. T. 4 W. 4, 475 to 520 
 to the jurisdiction'^ — (see title Jurisdiction.) 
 in abatement — (see title Abatement.) 
 in bar — (see title Pleas in har, in general, 469) 
 analytical table of defences, 471 
 the several pleas, before the recent rules, 
 the general issue non assumpsit in general, 476 
 form of it, ib. 
 
 nil debet, or not guilty, bad, 476, notes (s) and [t) [476 to 481 
 what might have formerly been given in evidence under it, 
 another person who ought to sue, 476 
 infancy of defendant, ib. 
 lunacy, ib, 
 drunkenness, ib. 
 coverturCj 477 
 illegality, ib. 
 alien enemy, plaintiff, ib. 
 statute of frauds,- ib. 
 release before breach, ib. 
 alteration of contract, ib. 
 performance, ib. 
 
 non-performance of condition, ib. 
 1 illegality of contract, ib. 
 
 bankruptey of plaintiff, ib. 
 coverture of plaintiff ib. 
 payment, 478 
 accord and satisfaction, ib. 
 negotiable security, ib. 
 foreign attachment, 478 
 arbitrament, ib. 
 judgment,recovered, ib. 
 higher security, ib. 
 release after breach, ib. 
 objections to non assumpsit, 478, 479 
 better to plead specially in, ib. 
 special plea when formerly necessary, ib. 
 alien enemy, plaintiff, ib. 
 provisional assignment, ib. 
 outlawry, plaintiff, ib. 
 bankruptey of defendant, ib. 
 insolvent debtor, defendant, ib. 
 tender, ib. 
 set-off, ib. 
 limitations, statute of, 478, 479 
 
762 INDEX. 
 
 ASSUMPSIT, ACTION 0¥— (continued.) 
 Fleas in — (continued.) 
 
 court of conscience acts when, ib. , 
 
 when at liberty to plead specially and advisable, 480 
 Since Reg. Gen. Hil. T. 4 W. 4, aUdefences must he pleaded specialf 
 
 ly, 512 to 520, 743 
 the qualities of pleas in bar, (see title Pleas in Bar.) 
 iikb forms of pleas in bar, (see title Pleas in Bar.) 
 Eeplications to, 
 
 1, several sorts, 
 
 when de injuria admissible, 584 
 to a plea of infancy, 581 
 to a plea of coverture, 581 
 
 alien enemy, ib. 
 
 insolvent debtor's act, &o. ib. 
 
 illegality of the contract, ib. 
 
 tender, ib. 
 
 accord and satisfaction, 582 
 
 arbitrament, ib. 
 
 judgment recovered, &e. ib. 
 
 release, ib. 
 
 set-off, ib. 
 
 court of conscience, 583 
 
 statute of limitations, ib. 
 
 2, forms of, (see title Beplications^ and the particular heads.) 
 
 3, qualities of, (see title Replication, aadi particular heads.) 
 Rejoinders in, (see title Rejoinders. ) 
 
 form of Issue in, 745 
 
 of Nisi Prius Eecord ib. 
 of judgment for plaintiff in, 746 
 jf Issue to be tried by Sheriff, ib. 
 of Writ of Trial, ib. 
 of Indorsement of Verdict, 447 
 of Indorsement of Nonsuit, ib. 
 
 of Judgment for the plaintiff after Trial by Sheriff, ib. 
 ASSURED, 
 
 statement of interest of, 743 
 ATTACHMENT, 
 
 debt for escape under, when it does not lie, 112 
 ATTACHMENT, FOREIGN, (see title Foreign Attachment.) 
 ATTAINDER, 
 
 plea that plaintiff has been attainted of ta^ason or felony, 446 to 448 
 defendant cannot plead his own attainder, 447, note (J) 
 ATTORNEY, (see titles Agent. Bailee. Servant.) 
 remedy against, 
 
 who to sue for not investigating title where employer dies, 19, 20, 69 
 when personally liable on a promise, 35 
 assumpsit against, 102 
 case against, 134 
 
 trespass against, for irregular process, &x..Si, 85, 180 
 conclusion of declaration against 420 , 
 
 how and when to appear and plead by, 427 to 429 
 what pleas to be pleaded by, 427, 428 
 in name of only one attorney, and nfflt several, 428 
 plea of privilege by, when affidavit formerly not necessary, 463 
 
 when sued improperly, privilege how jieodered available, 453 
 sued as attorney, not being so, ib. 
 
 title of term of, pleaded in abatement, 455 
 
INDEX. T63 
 
 ATTO'ELN'EY— {continued.) * 
 
 indorsement of name of on process, 730 
 writ issued without authority of, ib. 
 ATTOKNEY-GENERAL, 
 
 cannot be sued for official act, when, 78, 181, 182, 506 
 ATTORNMENT, 
 
 when not necessary to be alleged or proved, 18, 221 
 AUCTIONEER, 
 
 when he may sue, 7 
 when he may be sued, 35, 37 
 when personally liable on contract, -ib. 
 AUTER ACTION PENDENT, 
 
 when one of several wrong-doers may plead, 89 
 plea of, in abatement, 454 
 in bar, ib. 
 
 replication thereto, 464, 453, 454 
 
 actions by bankrupt and assignees for same cause, 454, note (p) 
 AUTER DROIT, 
 
 amendment in action of, whea refiised, 248 
 AVERAGE, 
 
 assumpsit lies for, 101 
 
 one shipper may»Bue the other for contribution to, ib. 
 AVERMENT, 
 
 defined, 320 
 form of, 824 
 
 n a declaration, 324, 325 
 in a plea, 555, 539 
 in a replication, 641 
 
 in a declaration in assumpsit, 320 to 832 
 of a condition precedent, 322 to 324 
 of notice to defendant, 327 
 of request, 329 
 
 in declaration in debt, &c. 368 
 AVOIDANCE, 
 
 matters in, must be pleaded specially, 515, 743, 744 
 AVO.WRY, (see title Replevin.) 
 AWARD, 
 
 does not pass property in goods to support trover, 150 
 what preferable action on, 101, 109 
 assumpsit lies on, when, 101 
 when assumpsit peculiar remedy on, 103 
 debt 'lies on, 109 
 
 statement of inducement in declaration, 209 
 statement of revocation of, implies proper revocation, 221 
 pleas to actions on, 485 
 plea of reference and award, 478 
 replication to plea of, 585 
 
 departure in replication, &c. in such case, 644 to 648 
 how to be stated in replication, 585 
 breach of arbitration bond must jse shown, 588 
 BAIL, • 
 
 in what actions, and how required, 208 
 remedy for not accepting bail, 134, 185 
 what bail cannot plead, 469 
 
 djisoharged, when form of action differs from writ, 244^ 253 
 when variance in names of parties, 244 
 in number of parties, 248 
 in character of parties, 250 
 
764 INDEX. 
 
 BAIL — ( continued f) 
 
 discharged, when variance in cause of action, 253 
 in venue, 244 
 laying venue in diflferent county no waiver of bail, ib. 
 
 Reg. Gen. of Trin. T. 1 W. 4, respecting, 727 \a 729, 733 
 BAILABLE PROCESS, 
 
 enactment of 2 W. 4, o, 39, s. 4, respecting commencement of personal actions, 
 705 
 BAIL BOND, (see title Bail.) 
 
 when several actions not allowed on, 43, note (/) 
 
 assignee of, may sue, 16 
 
 debts lie on, 110 
 
 stating breach of condition of, 369 
 
 void if arrest in wrong name, 245 
 
 defence to action on, how available, 469, 484 
 
 replication to plea of, 584, 585 
 
 case against sheriff for not assigning of, 138 
 
 declaration for not assigning of 385 
 
 plea to, of no proper affidavit of debt, &c. bad, 540 
 BAILEE, (see title Agent.) 
 
 when he may sue, 7, 61, 151, 169 
 
 who to sue where goods lent or let, • 
 
 when he may sue in detinue, 122 
 
 when he may bring replevin, 163 
 
 when he may sue in trespass, 169, 171, 172 
 
 when assumpsit lies against, 102 
 
 when case lies against, 134, 151 
 
 when liable to be sued in detinue, 123 
 
 when trover lies against, 154, &c. 
 
 when trespass lies against, 173, &c. 
 
 declaration against, 383, &c. 
 
 plea of non-assumpsit in actions against, 514 
 BAILIFF, (see titles Agent. Bailee. Officer. Sherif.) 
 
 when bailable to be sued, ex contractu, 34 
 
 ex delicto, 78, 80 to 84 
 
 when liable to be sued for extortion, 85, and note (c) 
 
 traverse of defendant being so in replevin, 591 
 
 in account, ib. 
 in trespass, 595 
 BAILMENT, 
 
 when plaintiff may reply a different bailment, 124 
 
 not traversable in action of detinue, 123 ■ 2 Cromp. & Mees 672 
 BANK NOTE, 
 
 who to sue on, 15, 16, 152' 
 BANKERS, (see title Agent.) 
 
 when liable to be sued, 36 
 
 may sue by one of their officers, when, _ 
 BANK OF ENGLAND, 
 
 actions against, 77 
 BANKRUPT, action by asmgnees of, (see title Assignee.) 
 
 when he may sue on contract, 26 • 
 
 his assignees, ib. 154 
 
 when he may be sued on contract, 53 to 55 
 
 lessee liable in covenant, when, 53, 4 
 
 giving bond for simple contract debt after bankruptcy does not merge it, 105 
 
 partner, when he must be joined in assumpsit, 54, 4 
 
 when advisable to sue bankrupt in case, 210, 92 
 
 when he may sue for a tort, 71, 72 
 
INDEX. 766 
 
 BAJmUJIPT— {continued.) 
 
 form of action for malicious issuing commission, 133 
 when he may be sued for a tort, 91 
 wife of, (see title Baron and Feme,) 58 
 fresh promise after bankruptcy, 54 
 BANKRUPTCY, (see titles Assignee. Bankrupt.) 
 of plaintiff, 
 
 pending suit does not abate it, when, 23, and note (») 
 how taken advantage of, ib. 477 
 
 in debt on specialty, or record, should be pleaded, 483, 485 
 in covenant, 486, 7 
 in case or trover, 71, 72, 498 
 puis darrein continuance, 657 
 of defendant, 53 to 56, 91 
 must be pleaded, 479 
 • form of plea, 557 
 whether may be pleaded generally, though certificate obtained pending ac- 
 tion, 63, 158, and note (<) 
 plea otpuis darrein continuance, 658 
 when a bar to action of covenant, 53, 54, 117, 118, 188 
 of husband, how far discharges wife, 59 
 ~ cannot be replied to specially, 599, and note (b) 
 may be replied to plea of nonjoinder, 467 
 BAEON AND FEME, (see titles Coverture. Criminal Conversation. Paftiet.)' 
 when they may sue, and how, upon a contract, 28 to 33 
 when they should join in action on, ib. 
 consequences of mistake in joinder, as plaintiff, 33 
 husband may sue alone when, 29 
 of joinder' in actions by, 202 to 205 
 
 1. As plaintiff', ex contractu, 29 
 
 2. ex delicto, 73 
 
 3. As defendants, ex contractu, 56, 202 
 
 4. ex delicto, 92 
 
 when they are to be sued, and how upon contracts, 56 to 59 
 
 husband liable in assumpsit where wife contracted by deed, 104 
 
 feme partner need not be sued, 43 
 
 when they may sue, and how, for torts, 72 to 85 
 
 when may join or sever for a tort, ib. 
 
 when husband should sue in detinue, 112 
 
 when they may be sued for torts, and how, 92 
 
 feme covert, when liable for,a tort, ib. 76 
 
 when husband only should be sued in detinue, 124 
 
 plea that parties are not married, 452 
 
 must join in plea, when, 428, 566 
 
 legal interest in chose in action of wife of bankrupt, vested in assignees, 28, 29,' 
 59 
 BASTARDY BOND, 
 
 overseer for time being may sue on, 16 
 BENEFICIAL INTEREST, 10 
 BEYOND SEAS, 716 
 BILL OF EXCHANGE. 
 
 exception in case of that right of suing can only be in one one person, 5 
 
 assumpsit lies on, 101, 103 
 
 when debt does not lie on, 103, 109, 113 
 
 indorsee may sue on, 16 
 
 declaration need not refer to custom of merchants, 217 
 
 or aver acceptance was in writing, 222 
 
 Vol. I. ^6 
 
766 INDEX. 
 
 BILL OF EXCSANGt^— (continued.) 
 
 or show consideration, 293 
 
 omission to aver notice of dishonor or presentment, 329 
 what a variance in statement of, 811, 312 
 amendment of, at trial, 319 
 delivery in satisfaction, plea of, 478 
 
 bill for price of goods, as to declaring if bill dishonored, &c. 347 
 plea of non assumpsit inadmissible, 515 
 prescribed forms of declaration on, 724 to 726 
 Keg. Gen. respecting several counts on, 739 
 BILL OP LADING, 
 who to sue on, 6 
 
 who liable on, for freight, &c. 48 
 exceptions in, must be stated in declaration, when, 309 
 BLACK ACT, (see title Hundred. 
 BLANKS, (see title Certainty.) 
 BODY, 
 
 ruling sheriflFto bring in body of defendant, 733 
 BONA NOTABILA, 
 
 plea of, how to be pleaded, 489 
 when to be pleaded, ib. 
 BOND, (see titles Deed. Parties of Action.) 
 assignor of, when he must sue, 15, 104 
 assignee of, when he must sue, 15 
 assumpsit to pay it on a new consideration, 15 
 debt upon, 110, 263 
 covenant lies on, semhle, 
 declaration on, 363 
 profert of, 365 
 oyer of, 430 
 
 in declaration, 402, vol. ii. 440, (a), 309 
 in replication, 584 to 588 
 assignment of breaches in action on, ib. 
 party should be sued by his description in bond, 245 
 pleading payment to action on, 702 
 payment of money into court in action on, ib. 
 BOOKS OP ACCOUNT, 
 
 trover for, 147 
 BOROUGH ENGLISH, 
 
 custom as to pleading it, 216 
 BOUNDARIES OF ACTION, 
 
 importance to prove, 97, note («) , ' 
 
 BREACH, (see particulars under title Assumpsit.) 
 statement of it, 
 
 in a declaration, 
 in assumpsit, 
 
 how to be stated, 332 
 several breaches when permitted, 336, 739 
 form of stating it, 332 
 consequences of mistake, 837 
 sufficient to prove part, 304, 309, 310, 317 
 common breach to money counts, 342, 360 
 in debt, 374 
 
 when advisable or flo,t to state breach of condition, on declaration, 
 
 836, 369, 370 
 is absolutely essential befor^, exfioijtipn, 6 Car. & P. 511 
 in covenant, 375 
 
INDEX. 767 
 
 BSEACR— (continued.) 
 in a replication, 
 
 when it must be stated, 584 {to 588 
 wben several breaches may be stated in, 586 
 how to be assigned, 584 to 588 
 
 recovery upon breach imperfectly assigned, though there be an express 
 breach imperfectly stated, 336 
 BKIBEEY, 
 
 two cannot be jointly sued for, 86 
 BBOKER, 
 
 when he may sue, 7, 61, 151 
 when liable to be sued, 34, 84 
 when bankruptcy no defence, 91, 92 
 BY-LAW, 
 
 assumpsit lies on, 101 
 debt lies on, 109 
 plea of distress for, 502 
 BY LEAVE OP THE COURT, 
 
 statement of, unnecessary, 555, 565 
 BY-THE-BYE, 
 
 practice as to declaring by, at sujt of same or fresh plaintiff abolished, 283 
 CANAL GALLS, 
 
 assumpsit lies for, 101 
 CAPIAS, WRIT OP, 
 
 introduction ?ff, by 2 W. 4, c. 39, 94, 7-05 
 form of, 718 
 
 the like into county palatine of Lancaster, 732 
 indorsements on, 711 
 
 declaring de bene esse when defendant not in custody on, 730 
 commencement of declaration on, 242, 285, 231, (see titles Declaration.) 
 CAPTAIN, (see titles Carrier. Skip.) 
 of a ship, 
 
 when he may sue for freight, &c. 7 
 
 cannot sue for demurrage or implied promise, ib. 
 
 seizure of ship, 61, 151, 169 
 when he is liable and may be sued, 33, 34, 37, 84 
 how to be sued for the loss of goods, &c. ib. 
 in assumpsit, 102 
 in case, when preferable, 134 
 of a troop, &c. when liable, 37 
 CARRIAGES, 
 
 negligent driving of, 
 
 who to sue for, 61, 81, 127, 128, 148 
 
 who to be sued for where injury committed by servant, 80, 81, 128, 131 
 
 form of action for, 
 
 trespass, when it lies, 128, 141 — 11 Price, 608 
 case, where it lies, ib. 
 
 must be case against a master for the act of his servant, 181 
 when trespass lies against master, 79, 131 
 declaration in, how to be framed in case, 128 
 CARRIER, 
 r liable for act of his servant, 80 
 
 'action against, for loss of goods, by whom to be brought, 6 
 which he may sue a strangei? for injury to goods, 61, 151 
 
 or on contract, 7 
 non-joinder of partner in action against, not pleadable, 11 Qeo. 4 & 1 Will. 4, 
 c. 68, s. 6, see page 86, 47 
 
768 INDEX. 
 
 C ARRIEEr— ( continued. ) 
 form of action against, 
 
 assumpsit, 102 i 
 
 case, 134 
 when liable in trover, 155, 161 
 declaration against, 
 
 need not state custom of the realm, &c. 216 
 how to declare against, 136, 382 to 385 
 plea of non-assumpsit in action against, how, 514, 743 
 of not guilty, in case, 744 
 CASE, ACTION OP, 
 
 costs to acquitted defendant, 88 
 
 how far aflFected by the nature of the injury in general, 125 to 132 
 
 whether forcible or not, 125, 126 
 
 whether immediate or consequential, 126 to 129 
 ■ legality of the original act, 129 
 intent, 129 
 exceptions, 130 
 
 summary of the leading points governing this form of action, 131, 132 
 why so called, 95, 132 
 general applicability of this action, ib. 
 lies at common law, 
 
 for nonfeazance, misfeazanoe, and malfeazanee, 95, 132, 133 
 
 defined, ib. 
 for injuries to the person, 131 to 134 
 to the absolute rights, 
 
 mischievous animals, keeping of, 133 
 
 when trespass lies, ib. 
 malicious prosecutions, ib. 
 
 when trespass lies, ib. (see title Trespass,) 181 to 185 
 slander, verbal and written, 134 
 pleadings in such action, 399 to 408 
 health, injuries to, 134 
 refusing to accept bail, &c. ib. 185 
 against surgeons, agents, &c. 134 
 to the relative rights, 
 
 criminal conversation, ib. 
 debauching daughters, ib. 
 
 trespass now considered preferable, ib. 167 
 enticing away servants, &c. 134 
 for injuries to personal property and breaches of duty and contract, 
 124 to 137 
 
 case proper where injury is either not forcible or not immediate 
 
 or affects property in reversion, 134 
 against attornies, and bailees, &o. for neglect, &o. 134 
 when concurrent remedy with assumpsit, ib. 135 
 which preferable, 143, 144 
 
 when case lies, though collateral remedy on deed, 135 
 when lies for non-foazanoe, and as to consideration being 
 shown, 135, 136 
 breach of warranty, 137 
 
 deceitful representations of another's solvency, ib. 
 representations to be in writing, 9 Geo. 4, c. 14, s. 2, 703 
 negligence in driving carriage or navigating ships, 127 to 129, 11 
 
 Price, 608 
 distress illegal, 138 
 irregular, ib. 
 
INDEX. 769 
 
 CASE, ACTION 0¥— {continued) 
 
 pound breach and rescue of distress irregular, 138 
 rescue of party arrested, ib. 
 escapes or not arresting, 138, 139 
 false returns, ib. 
 
 not levying under a,fi.fa. &o. ib. 
 not delivering letters, 139 
 against a witness for not obeying a subpcsna, ib. 
 copyright and patents, infringing of, ib. 
 for obstructing taking tithes, ib. 
 reversionary property, ib. 
 _ wien concurrent remedy with trespass and trover, 139 
 or injuries to real property, 
 corporeal, 
 
 when the remedy must be trespass, 139, 140 
 
 for non-feasance, &c. must be case, ib. 
 
 injury not committed on plaintiflF's land, ib. 
 
 where plaintiflF's right in reversion, 139, 140 
 
 tithe, not carrying away, ib. 
 
 ancient lights, 140 
 
 nuisances to houses, land, &c. ib. 
 
 continuing them, ib. 
 water courses, injuries to, ib. 141, 142 
 waste, wilful or permissive, 140, to 143 
 dilapidations in a rectory, &c. 141 
 fences, not repairing of, ib. 
 incorporeal, 
 
 commons, ways, pews, disturbance of, 142 
 oflices, franchises, markets, ib. 
 other easements, preserves, decoys, &c. ib. 
 on statutes, 
 
 in general, 143 
 for calls, dues, &c. ib. 
 
 landlord against a sheriff not paying a year's rent, ib. 
 hundred, actions against ib. 
 distresses, irregular, ib. 
 
 against justices, where conviction quashed, ib. 183 
 of the advantages of this action over others, 143 
 
 its disadvantages, 144 
 the pleadings, judgment, and costs in general, 145 
 pleadings, &o, in particular, 376 to 408 
 Declakation in (see the particular head of injuries.) 
 
 title of the Court and term (see title Declaration,) 262, 266 
 
 venue in (see title Venue,) 266, 269, 276 
 
 commencement, 280 
 
 statement of the matter or thing aflfeoted, 376 to 378 
 
 of the plaintiff's right or interest, 378 to 385 
 
 variances in statement of, 385 to 387 
 of the injury, 387 to 408 
 
 variances, 391 
 declarations for slander and libel, 399 to 408 (see title Slander.) 
 time, 393 
 place, 394 
 
 of the damages, 395 to 399 
 conclusion, 418 
 pledges and profert, 420 
 defects, when aided, 421, 677 to 684 
 several counts in, 408 to 418 
 
770 
 
 INDEX. 
 
 CASE, ACTION OF— (continued.) 
 Pleas in, 
 
 general issue, form of it, 490, 491 
 
 what might formerly be given in evidence under it, ib. 
 plea of not guilty, what to put in issue, 518, 219 
 action for slander, &c. (see title Slander,) 491 to 497 
 
 recaption in actions for escape, 497 
 when advisable to plead specially, 498 
 statute of limitations must be pleaded, ib. 
 replications must be pleaded, ib. 
 replications in, 590 
 
 when de injuria proper or not, ib. 606 
 CASE, SPECIAL, 
 
 power of judge to order, without proceeding to trial, 720 
 setting down same for argument, 734, 735 
 CASSETUK BKEVE, 
 
 entry of, on plea in abatement, 
 plaintiff not liable to costs on, 466 
 CATTLE (see title Animals.) 
 CAUSE, (the title Absque Tali Causa.) 
 CEPIT IN ALIO LOCO (see title Replevin.) 
 plea of, in replevin, 499 
 replications to, when proper, 591 
 non cepit, 499 
 CEKTAINTY, 
 
 defined, 232, 233 
 
 degrees of, and what necessary in different parts of pleading, 232 to 286 
 the words " certain," " duly," " lawfully," &c. of no avail, 236 
 what necessary in a declaration (see title Declaration,) 256 to 260 
 plea, 53 to 539 
 replication, 648, 649 
 
 new assignment, (see title New Assignment.) 
 in plea pvis &c. 659 to 660 
 when want of, cured, 236, 260, 533, 671 to 684 . • 
 
 CERTIFICATE, 
 
 may be replied to plea of nonjoinder, 467 
 CESTUI QUE TRUST, 
 
 when he can or cannot sue, 2, 3, 4, 60, 61, 62, 151 
 when he may sue when in possession, ib. 
 cannot sue trustee, when, 34, 60 
 
 may, if trustee has admitted a balance due, 34 
 in ejectment, 189, 190, 193, 194 
 CHANCERY (see title Decree.) 
 CHARACTER (see title Slander. 
 CHARACTER op PARTY SUING, 
 
 statement of the same, in declaration, 250 to 253, 285 
 decisions on 2 W. 4, c. 39, 250, 251 
 to be admitted unless specially denied, 742 
 CHARGES, 
 
 defendant must answer all, in his plea, 523 
 CHARTER, 
 
 detinue lies for, 122 
 who should sue, ib. 
 CHARTER PARTY (see title Freight.) 
 assumpsit lies on, when 101, 103 
 
 assumpsit against owner though charter-party with master, when, 103, 136 
 debt lies on, 110 
 covenant lies on, 118 
 
INDEX. 771 
 
 CHARTEE PAnTY— (continued.) 
 
 when case does not lie, where there has been one, 103, 136 
 
 who to sue on, (see title Parties,) 6 to 8 
 
 owner assigning his interest, and then becoming bankrupt, he should sue, 16, 25 
 
 two counts on same chartered party not allowed, 739 
 CHASE, 200 
 CHATTELS, 377 
 CHECK (see title Bills of Exchange.) 
 
 assignable, 16 
 
 assumpsit lies on, 99, 103 
 CHESTER, COUNTY PALATINE OF, 
 
 abolished, 1 Will. 4, c. 70, s. 13, 14, page 448 
 CHOSE IN ACTION, 
 
 in general, 15 to 18 
 
 when assignee or assignor should sue, ib. (see title Assignee of.) 
 CHURCH, (see title Pews. Rector.) 
 
 trespass lies by rector for preaching in, without leave, 174 
 
 ejectment, &c. for, 188 
 CHURCHWARDEN (see title Overseer.) 
 
 as to suing, 14, note {g), 15 ; note {k) 
 
 and being sued, 38 " " ■ 
 
 CIVIL LAW (see title Law.) • 
 CIVILITUR MORTUUS, 
 
 wife may sue or be sued, if the husband be so, 28, 29, 58 
 CLAIM or CONUSANCE (see title Conusance.) 
 CLAIMS, 
 
 of rights by prescription limited by 2 & 3 W. 4, c. 71, 712, 71 
 
 how to be stated in pleading, 713 
 
 prescription of restricted, 714 
 
 proviso for infants, ib. 
 
 time for claiming, how computed, ib. 
 CLOSE, 
 
 meaning of the term, &c. 174, 376 
 
 when to be described by i^ame i^r abuttals, 376, &o. 503, 744, (see title 
 Abuttals. ) 
 
 new pleading rule, Hil. T. 4, W. 4, 744 
 
 CO, ■ : , 
 
 too general a description of parties to an action, 256 ' 
 CO-DEFENDANT, 
 
 plea of non-joinder of limited, 716, (see title Non Joinder.) 
 CO-EXECUTORS, &c. (see title Kteeutor.^. , Joinder. Parties.) 
 COGNIZANCE, (see title Replevin.) 
 COLLATERAL UNDERTAKING, (see.title Guarantee.) 
 COLLUSION, 
 
 remedy against parties, 9, 64, 79 ■> : I 
 GOLO:I^ IN I'l^JIA^ING, . 
 in a plea, 
 
 defined and explained, 525 to 532 
 
 implied color, 528 ,ir i ' ; 
 
 infancy, coverture, payment; illegal consideration; &o. are instances, ib. 
 in trover, &c. ib. 529 " 
 
 instances in trespass, ib. ,., ;: ■ < 
 
 express color, ib. 
 when necessary or not, 529, 530 
 
 in trespass, &c. w;he,re defendant justifies under a demise, &o. 530 
 • only occurs in trespass, 530 
 
772 INDHX. 
 
 COLOK IN PLEADINGr— inaplea— (cow^mwerf.) 
 fonn and requisites of, 531, 532 
 addition of, unnecessarily, only surplusage, 529, 532 
 defect in, or omission, when aided, 532 
 not traversable, 530, 532 
 in a replication &c. not unnecessary, 530, 532, 624 
 the insertion of it will not vitiate, ib. 
 COMMAND (see title Bailif.) 
 traversable in replevin, 591 
 
 and in trespass, 595 
 replication de injuria, is sufficient to plea of, 608 
 COMMENCEMENT, 
 
 of a declaration, (see title Declaration,) 280 to 289, 730, 731, 742 
 of a plea, 741 
 
 in abatement, (see title Abatement,) 454,456 
 in bar, (see title Pleas in Bar,) 549 to 554 
 of a replication, (see title Replication,) 601, 602 
 COMMENCEMENT OF ACTION, 
 
 date of writ now considered such, 259, note a, 704 
 uniformity of process act respecting, 704 to 709 
 COMMISSIONEKS (see title Agent.) 
 
 under public undertaking, when they may suti, 7, 176 
 of public act, when they may sue or be sued on a contract, 14, 37, 38 
 when they may sue for a tort, 176 
 when they may be sued for a tort, 77 
 of turnpike road, how to sue, &c. 14 
 of bankrupts cannot be sued, when, 78 
 power of Courts to appoint, to take affidavits, 723 
 COMMON COUNTS, 340 to 360 
 prescribed form of breach, 360 
 COMMON INPOKMER (see title Penal Statute) 
 cannot sue unless expressly authorized, 112 
 conclusion of declaration at the suit of, 373, 374 
 COMMON LAW RIGHTS and DUTIES, (see title Carriers.) 
 
 what need not be stated in pleading, 216 
 COMMON OE PASTURE, 
 
 Reg. Gen. respecting pleas of, 744 
 COMMON, RIGHTS OF, 
 
 when a commoner may sue, 64, 142 
 remedies for injuries to, 132, 142 
 
 how to plead, 2 Young & J. 93, 622, 623 
 declarations for obstructing, 381, 386, 391 
 ejectment lies to recover, when, 188 
 must be pleaded in trespass, 502, 523 
 several pleas of, when not allowed, 740 
 
 how to be pleaded since statute 2 Will. 4, c. 71, 712 to 714, and see 2 
 Young & J. 93. 
 replication to plea of, 596, 597, 622, 623 
 new assignment relating to, 628, 636 
 Stat. lini. respecting right of, 712, 713 
 COMMON, TENANTS IN, (see also titles Tenants. Joint Tenants. Partners,) 
 when they may join or sever in actions by them, 12, 65 
 must sever in avowry, &c. and how, 13, 566 
 when one cannot sue his co-tenant on a contract, 13 
 
 for a tort, 70, 156; 179 
 COMPANIES, 
 
 when liable, and how, for torts, 76 
 
INDEX. 773 
 
 GOmPAmm— (continued.) 
 
 one member suing another, 11, 41 
 assumpsit by, 106 
 COMPANY (see titles Commissioners. Corporation.') 
 
 ■when too general a description of the parties to the suit, 256 
 COMPOSITION DEED, 
 
 when trustees of, cannot sue, 15 
 COMPUTATION OP TIME, 
 
 in prescriptive rights, how limited, 714 
 CONCLUSION (see titles Declarations. Pleas. Replications.) 
 of a declaration, 418 to 421, 286 
 of a plea, 741 
 
 in abatement, 460 
 in bar, ib. 556 to 559 
 of a replication, 
 
 in abatement, 463, 464 
 in bar, 641 
 of a new assignment, 637 
 CONCURRENT CONSIDERATION, 
 
 statement of, in declaration, 297 
 CONDITION OP BOND, 
 
 when advisable to state breaches of, in declaration, 368 to 370 
 CONDITIONS PRECEDENT, 
 
 statement of, in assumpsit, &c. 320, 328 
 
 what amounts to, and averments of performance, &c. ib. 
 
 of readiness to perform, and excuse of performance, 326 
 in debt, 368, 369 
 CONFESSION AND AVOIDANCE (see titles Pleas. Replications.) 
 plea in, defined and explained, 515, 525 to 538 
 must confess the facts pleaded to, ib, 
 of giving color, (see title Color,) 526, 527, &c. 
 
 pleas amounting to the general issue bad, in reference to this rule, 515, 52? 
 admits defendant's infancy, but goods necessaries, 528 
 admits, freeholder's title, but shows'a demise from him, 500, 501, 503, 520 
 matter in discharge, or confession and avoidance; to be specially pleaded, 506; 
 
 743,744 ■ ' 
 how in assumpsit, &c. 477, 478,, 480 
 
 case, 590, 591, 494, 498 
 form and requisites of, 525 to 533 
 replications in confession and avoidance, 622 to 625 
 CONFIRMATION, 
 
 of promises made by infants, 703 
 CONSCIENCE, COURTS OF, (see title OourU.) 
 CONSENT, 
 
 stat. lim. limiting right of prescription unless enjoyed by, 713 
 CONSEQUENTIAL INJURIES, ^ 
 
 • what so considered, 126 to 129 
 when not too remote, 126 to 129 
 remedy for, in general, case, &c. ib. 125,- 132 to 134 
 CONSIDERATION, 
 
 when essential to support a simple contractj 293, 4 
 
 when on new consideration, assumpsit lies though there was a deed, 103 to 105 
 
 in the case of a deed, 366, 367 
 
 illegality, effect of, on simple contract, 295 
 
 in a deed, 105, 366 
 not presumed till contrary shown, 221 
 
 must be pleaded, in case of deed, 484, 743 
 Vol. I. 97 
 
11i INDEX 
 
 CONSn)EB.ATIOii—(conHnued) 
 
 so in assumpsit, 476, 477, 743 
 replication to plea of in debt, 584 
 
 in assumpsit, 581 
 when and tow to be stated in declaration, 293 to 297 
 in assumpsit, 
 executed, 295 
 executory, 296 
 concurrent, 297 
 continuing, ib. 
 in debt or covenant, 366, 375 
 in case, 383 to 385 
 variances in stating it in assumpsit, &c. 297 to 301 
 consequence of mis-statement of it, 300, 301 
 
 averment of performance by plaintiff of condition precedent, 320 
 CONSIGNOR AND CONSIGNEE, 
 
 which to sue a earner, &o. 6, 61, 152 
 when consignee may be sued for freight, 48 
 CONSOLIDATION, 
 
 of actions, 198, 199 notes 
 CONSPIRACY, 
 
 remedy for, 133 
 CONSTABLE and other OFFICERS, (see titles Bailif. Officers. Shetif.) 
 when liable, 78, 134, 185 
 venue in actions against, local, 273 
 
 may plead general issue, and give special matter in evidence, 506 
 effect of joining in bad special plea, 546, note (y), 566, 567 
 CONSTRUCTION, ' 
 
 of pleading, rules of, 237 to 239 
 
 when " there " doe« not refer to the last antecedent, 239 
 of pleas, 545 
 
 when and why matter to be construed most strongly against the party pleading, 
 237, 545 
 CONTINUANCE (see titles Imparlance. ' Nuisance. ) 
 
 Reg. Gen. Hil. T. 4 W. 4, respeetmg, 738 
 CONTINUANDO (see title Time.) 
 CONTINUED CONSIDERATION, 
 statemeint of, in declaration, 297 
 CONTRA FORMAM STATUTI, 
 
 when this allegation is necessary, and oonSequenoeS of mistake, 372, 373 
 when requisite in a plea, 556 
 CONTRA PACEM, 
 
 when to be inserted, 145, 388 
 omission aided, unless specially demurred to, 388 
 CONTRACT, ACTION on (see title Assumpsit. Consideration. Deed. Par 
 ties.') I 
 
 suing on, 42 to 44 
 
 when implied, arises out of a tort, 99, 107, 134 to 137, 207 to 209 
 renledy for breach of, by action ot the case, 134 to 137, 383 to 385 
 statement of several breaches in one count allowed, 739 
 assumpsit the usual remMy, if not under seal, (see title Assumpsit.) 
 ^hen plaintiff may sue in assumpsit, wherfe there is a deed, 103 to lOS 
 how to be stated in assurdpsit, (see title Assumpsit,) 801 to 321 
 statement of, admitted, unless dtenied by plea, 318 
 amendment bf statement of, at nisi prius, 320 
 how to be stated in debt, (see title Dek,) 361, 363 
 parties to actions on, (see title Parties.) 
 proviso for the case of jdiiit contractorB, 703 
 
INDEX. . T75 
 
 CONTRACT, ACTION on— (continued.) ^313 
 
 variance in statement of the promise, in assumpsit, (sSe title Assumpsit.) 305 to 
 of tlie consideration, 297, 301, 384 
 in debt, ib. 336 
 in case, 385 to 387 
 
 reg. gen. respecting statement of, 739- 
 CONTRIBUTION, 850, 351, and notes, 
 CONUSANCE, CLAIM or, 
 
 defined and explained, and the law relatine to it, 422 to 427, 443, 444 
 CONUSBE. OF FINE, 
 
 trespass by, 177 
 CONVERSION, (see title Trover,) 153 to 161 
 
 demand of goods to create it, 156 to 160 
 CONVICTION, 
 
 if regular on face of it is conclusive evidence pf , regularity, IS3 
 
 remedy where conviction quashed, 143, 183 
 
 if bad on the face of it, &c. 181 to 184 
 CO-PARCENERS (see title Parties. Partners.) 
 
 must jointly sue, when, 14 
 COPYHOLD AND COPYHOLDER, 
 
 ejectment by copyholdor, 189, 190, note (w) 
 
 may sue for mense profits, when, 177 
 
 purchaser of, how to declare on a lease, €64 
 
 showing title to, 504 
 
 when copyholder should claim right of ooijcqaion, fy^.^ytmiatPViii^^ 
 
 when to prescribe under th^ lor4, ib. 380, 381, '5Q^ 
 
 fines, debts liejS for,' 109 
 
 action against lord for sureharee, 391, note («) 
 COPYRIGHT, 
 
 who to sue, 15, 67 
 
 .assignee of, may sue for injuries to, 67 
 
 remedy for injuries to, 139 
 
 declaration for, see vol. ii. 533 to 535 
 CO-PARTNERS, 
 
 when may sue by one of their pujjlio officers, 14 
 CORPORATION AGGREGATE, 
 
 when may sue for use and occupation, 11, 106 
 CORPORATION (see titles Oommissioners. Companies.) 
 
 mayor, &c. of, when he cannot sue on contract, 7 
 
 revived corporation may sue on bond given to old, 15, note (A) 
 
 successors of, may sup on contract vested in pred^ecesso^^, ib. 
 
 bye-laws that one member shojild sue others for, ^o. 11 
 
 actions by incorporated companies, 14, 15 
 
 when liable to be sued for a tort, 76 to 78 
 
 when not liable on a contract, 106 
 
 assumpsit against, when does not lie, ib. 
 
 may sue in assumpsit, ib. 
 
 how to declare in case at the suit of, 382 
 
 must plead by attorney, 551 
 how to describe in declai;ati(Dn, 256 
 service of writs on, 708 
 COSTS, 1 Met. & Perk, (see title Costs.) 
 liability ofiJ^xepi^tors for, 21 
 now payable in general to acquitted defendant, 88 
 when may be set off against verdict for plaintiff, ib. 
 how far they depend on form of action, 2ll 
 in assumpsit, 108 
 
776 INDEX. 
 
 COSTS— (continued.) 
 
 debt, 11-i, 116' 
 on judgment, 111 
 covenant, 120 
 detinue, 125 
 case, 145 
 trover, 161 
 replevin, 165, 166 
 
 trespass, 186 • • 
 
 ejectment, 192 
 mense profits, 196 
 extra, not recoverable as special damage, when, 196, 338, 339, 398 
 pf several counts, 412, 413 
 
 recoverable beyond damages at the end of declaration, 419 
 in case of plea in abatement, 466, 468 
 iow far affected by special plea, 508, 509 
 pf several pleas, 560, 562 
 of several defendants, 88, 567 
 on new assignments, 639, 640 
 defendant entitled to, demurrer, 197 
 on nonsuit, ib. 
 not on plea in abatement, when, 466 
 not in error or motion in arfest of judgment, 197 
 when executor liable or not to pay, 21, 204, 490, 508, 509 
 when one of several executors acquitted, 88, 567, 568, 490 
 payment pending action, when should be pleaded, 478, 507, 522 
 when payment of, in action, not recoverable against party liable to, under com- 
 mon count, 350, 351 
 of amendments of variances at Nisi Prius, 704 
 of special juries in case of nonsuit, 721 
 power of Courts to make regulation respecting taxing of, 721 
 one day's notice of intention to tax requisite, 721 
 of several counts and pleas, how allowed, 740 
 COUNSEL, 
 
 signature of, to pleadings when necessary, 648 
 COUNT, 
 
 pleas in abatement to, when no longer pleadable, 449 
 defective in part, aided after v-irdict, 682 
 COUNTS (see Several Counts.) 
 
 several (see \a\\b Declaration,) 409 to 421 
 
 when they may be joined (see title Joinder in Action,") 199 
 when proper to be inserted in declaration, (see title Several Counts,) 409 
 to 421 
 common, in assumpsit, 339 to 360 
 costs of, how allowed, 740 
 COUNTIES, 
 
 division of England into, noticed ex officio, 218, (see title Venue.) 
 direction of alias and pluries writs into, 729 
 COUNTIES PALATINE, 
 
 how far they are recognized by the superior courts, 220 
 "are superior courts as to laying venue, 218 
 pleas to jurisdiction of, 443 
 
 court of, in Chester, abolished, 1 W. 4, e. 70, s. 13, 14, page 443 
 COUNTERPART, 
 
 production of, when sufficient in covenant, 375 
 COUNTY, 
 
 places ^hen to be deemed part of, 708 
 
INDEX. "777 
 
 COVlSTY-~{continued.) 
 
 courts may direct issue to be tried in any, 719 
 COUNTY COURT, 
 
 how venue to be laid in, 275, 441 
 pleas and objections to jurisdiction of, 441 to 445 
 several pleas not allowed in, 560 
 COUNTEY, 
 
 when and how pleas conclude to it, 556 
 Similiter, 449 ' 
 
 when and how replications conclude to it, 641 
 COURT, 
 
 payment of money into, in certain actions under 3 & 4 W. 4, o. 42, 719 
 COURTS, 1 Met. & Perk. Dig. Tit. Courts. 
 
 division of and distinction between as to jurisdiction, 181, 423, 441, &o. 
 of general jurisdiction, how far judicially taken notice of, 219, 220 
 power of, to make rules for government of their officei's, 708 
 to make rules affecting pleading, 714 
 to direct facts, &o. to be found specially, 720 
 to state special case without proceeding to trial, ib. 
 COURTS, INFERIOR, (see titles Inferior Gourts. Jurisdiction.) 
 how far noticed without pleading their practice, &c. 220 
 how defects in jurisdiction to be objected to, 441 to 445, &c. 
 trespass, 181 
 
 how venue to be stated in 275, 442 
 when cannot plead several pleas in, 560 
 COURTS OF CONSCIENCE, 
 
 statutes, &c. as to, when or not to be pleaded, &c. 479, 480 
 replicatidn to plea of, 583 
 COVENANT, ACTION OF, 
 
 by and against whom to be brought, (see title Parties,) 16, 48 
 when it lies in general, 115, 116 
 on what deeds and covenants it lies, ib. 119 
 on implied covenants, 117 ^ 
 
 on leases when proper, and against whom, (see title Parties,) 116 to 118 
 when the only remedy, or preferable, 118 
 the only remedy against assignee of part of demised land, 43, 49 
 when it does not lie, or not preferable, 118 
 pleadings, judgments, and costs in, general, 120 
 pleading, &G.in, in particular, 875 
 Deolakation in, 
 
 title of court and term, 262, 3 
 
 venue in, (see title Venue,) 270, 271 
 
 commencement of declaration, 375 
 
 inducement, 363 
 
 consideration when to be stated, 366 
 
 the deed, how to be stated, 367, 305, 307 
 
 variances, 305, 308, 311 
 
 amendment, 219 
 
 profert thereof, 365 
 
 provisoes, &c. 308, 309 
 
 references to deed and lessee's entry, 368 
 
 derivative title, how stated, ib. 
 
 averments of plaintiff's performance, &c. 327 to 331, 368 
 
 defendant's breach, 375, (see title Assumpsit,) 298 
 
 conclusion of, 375 
 
 ad damnum, ib. 
 Pleas in [486, 7, 518 
 
 J as to non est factum. Low far it operates since Reg. Gen. Hil. T. 4 W. 4, 
 
778 INDEX. 
 
 COVENANT, ACTION OF—{contmmd.) 
 Pleas in — (^continued.') 
 
 no general issue, 486, 7, 518 
 
 non infregit conventionem, a bad plea, 487 
 
 rien en arrere, a bad plea, ib. 
 
 what must be pleaded specially 427, 8, 518 
 
 2, qualities, (see title Phas in Bar,) 512, &c. 
 
 3, forms of, (see title Pleas in Bar.) ,548 
 
 matter of avoidance must be pleaded specially, 518 
 Kepucations in, 
 
 1, in general, 589 
 
 2, forms in, (see title JRepEcations.^ 
 
 3, qualities, (see title EeplioationsS) 
 Ebjoindbrs in, &c. (see title Bejoinders.) 
 
 COVENANTS, 
 
 remedy on, (see titles Covenants. Parties. ) 
 mutual and independent, 321 to 325 
 dependent or conditions precedent, ib. 
 mutual conditiofis, &c. to be performed sit same tinag, ib- 
 who to sue on, 1 to 4 
 joint and several, who may sue on, &c. 8 
 what a joint and several, 9, n. (y) 
 assignment of, who to sue, 16 
 death of one of several parties, who to sue, .&e. ^19 
 executor suing on, &c. 19 
 by an agent on behalf of third party, 35 
 
 what covenant assignee will be subject to, (see title JLsisigiiiim,) '43 
 death of covenantor, effect of, who liable, 50 to 63 
 implied covenant, 49 
 COVERTURE, (see title Baron and Feme.) 
 of defendant, 
 
 at time of making contract, 
 
 might, before Reg. Gren. Hil. T. 4 W. 4. ^a\fe-bgi?aigi-\!SP:iji.jei?iijJenc« 
 
 on non assumpsit, or nit dehef, 449, '477, 482 
 in debt on specialty under npnestfaQtVimjABp 
 but now must be pleaded specially, 743 
 may be pleaded, 460 
 must be pleaded in peuson, when, 428 
 ■» should be pleaded separately, 565 
 
 replication to it, 449, 581 
 existing coverture, 
 
 must be pleaded in abatement, 477 
 must be in person, 428 
 how plea concludes, 461 
 with what other plea it may be pleaded, i5CH 
 replication to it, 58, 59, 440, 58J 
 after commencement of action, 449 
 of plaintiff, 
 
 when wife may sue alo^e for a legacy, 28 
 
 when it must be pleaded or jnay be given iinievjdeflce, 4AB, )477, 743 
 how plea concludes, 461 
 after commencement of suit, plea of, 449 
 CRAVING OYER, (see title Ouer.) 
 CREDITOR, 
 
 appointing debtor his executor, release the latter, 5§ 
 CRIMINAL CONVERSATION, 
 
 remedy for case or trespass, 134, 167, 168 
 ftregpass, uBual;fomJ,9f remedy for, Jb. 
 
CKIMINAL CONVEKSATION— (cdw<m«»(*. ) 
 deelaxation for, 379, 391 
 
 recovery against one fbr, no bar against anothev, 89 
 CRIMINAL INFORMATION (see title Information.) 
 CRIMINAL PROCEEDINGS (see title Indictment.) 
 CUSTODY, 
 
 commencement of declaration vfrhett defendant is or not in custody, 7S1 
 CUSTOM (see title Prescription.) 
 
 when party may by, sue in particular fonh of action, 96y 220 
 what to be stated in pleading, 216, 217, 218, 379 
 variance in stating, ib. 
 pleas of, in trespass, 505, 506 
 
 of London, as to husband and wife suing and being sued, 81 
 under traverse of, may show another custom when, 596, 619, 662 
 replying repugnant custom, 619 
 CUSTOM-HOUSE OEHCBR (see title Ope»f,) 
 liable for wrongful seizure, 84 
 . venue in action against, 287 
 CUSTOM OP THE COUNTY, 
 
 what statement of, in a declaratioM, 332, 333 
 DAMAGE (see title Injuries.) 
 
 when to remote, 129 
 DAMAGE FEASANT (see title Amends. iKstress.). 
 replevin lies to try legality of dirtress for, 164 
 case or trespass for, lS8, 171 to 173 
 avowries, &c. for, 499, 740 
 pleas in trespass, 502 
 repUcations in trespass, 594 
 DAMAGES, 
 
 in general, 395 
 
 in assumpsit and covenant, principal gtbuffid of action^ 188, 120, 375 
 in debt, 114,374 
 in trover, how estimated, 161 
 in detinue, 124, 125 
 in trespass, 186 
 in ejectment, 192, 193 
 in mense profits, 196 
 
 must be what have really .taken place, 338, 339, 395, to 399 
 must be legal and natural consequence of injury, &c. 388, 395, 398 > 
 
 special damage, ib. 
 
 statement of, in the body of declaratioH, 
 on contracts, 
 
 what to be stated and recoverable, 388, 339 
 how to be stated, ib. 
 consequences of mis-statfcttient, ib. 
 in torts, what, 395 
 
 when recoverable and how stated, 395 to 399 
 alia anormia, 397 
 
 special damage, and must be steited with particularity, 39^ 398 
 no part of, must have arisen after the actioit' brought, 3B9 
 at the end of the declaration, 
 
 in aetions by husband and wife, 418 
 
 at the suit of an executor, assignee, &d. ib. 
 to what amount to be stated, 338, 339 
 consequence of taking a verdict for mote, 339 
 prayer of, in replicatioti, 342 
 when jury may give, in the nature of interest, 721 
 
780 INDEX. 
 
 DATE (see titles TVme. Declaration. Plea.) 
 of deed, statement of, 311, and note (a) 
 
 when material, and not to be departed from in pleading, 647, 648 
 inconsistency in, may be demurred to, 259 
 of writ, now the commencement of action, 709 
 pleading when to be dated, 738 
 DAUGHTERS (see title Master and Servant. ) 
 
 remedy for debauching of, or enticing away, 134, 167, 168 
 trespass lies when, ib. 
 declaration for, 379, 391 
 DAY (see title Time, 311, and n. («), 217 
 of service to be indorsed on writ, 729 
 the like execution of capias, 729 
 DAYS OP WEEK, &c. 
 
 statement of, in pleading, 217 
 DEATH (see titles Abatement. Actio Personalis,') 
 
 of one of several parties in action ex contractu does not abate suit, when, 19, 
 note (i), 67 
 
 who to sue, 19, 20 
 who to be sued,- 50 
 of one joint- ena it in real action abates it, 48 
 of sole contractor, who to sue, 19 
 
 who to be sued, 51 
 of one of several parties in torts, does not abate, when, 67, 68 
 of lessor of plaintiff in ejectment, 191 
 who to sue, 67, 68 
 of sole, injured party, who to sue, 68 
 of wrong-doer, remedy gone, when, 89 
 of wife or husband, effe of, on a contract, 21, 82, 58, 59 
 
 on a tort, 67, 68, 93 
 form of declaration in case of, 19, 50, 67, 68 
 plea of, in abatement 448, 452 
 puis darrein continuance, ib 
 DEBAUCHING DAUGHTERS (see titles Daughter. Master and Servant.) 
 
 remedy for, 134, 167, 168, 379, 391 
 DEBET AND DETINET, 
 
 when proper to declare in, in debt, 109, 361 
 against an executor for rent, 369 
 DE BONIS ASPORTATIS, 
 
 when tenant liable for removing virgin soil, 147 
 damages in nature of interest for, 397 
 plea of not guilty to action for, what put in issue, 520 
 what plaintiff may reply in action for, 650 
 DEBT, ACTION OF, 
 
 parties to, who to be, (see title Parties.) 
 definition of, 108 
 when it lies in general, 
 
 against an executor or administrator, when, 97 
 
 for money due, if readily reducible to a certainty, whether due on, legal 
 liabilities, 198, 199 
 
 simple contracts, 109, 110 
 specialties, 110, 111 
 records, 111, 112 
 statutes, 112 
 when the peculiar remedy agailist lessee, &c. ib. 
 of wager of law, and other diffictdties and advantages, 118, 114 
 when it does not lie, 113 
 
 not for unliquidated damages, unless secured' by a penalty, il>. 
 
INDEX. 781 
 
 DEBT, ACTION 0¥— (continued.) 
 when not on a bill or note, 113 
 not against an executor on simple contract, when, ib. 
 when not for money payable by instalments, ib. 
 when not against lessee, ib. 
 not against assignee oi part of demised land, 43 
 not on a collateral conti'act, 113 
 when not material that plaintiff shonld prove the precise sum to be due, 114-. 
 
 277, 358 
 pleadings, judgment, and costs in general, 114, 115 
 Pleadings in, in particular, 
 Declarations in, 
 
 general requisites to be observed, 240 to 263, 359 
 title of the Court and term and venue, 263 to 279 
 recent alterations respecting venue, 279 
 commencement stating the sum demanded, &c. 361 
 
 when in the debet and detinei, or only the latter, ib. 
 cause of action, 
 
 on simple contract and legal liabilities, 361, 362 
 how contract to be described, ib. 
 form of indebitatus count, 361, 362 
 reg. gen. T. T. 1 W. 4, as to conciseness in, 362 
 on specialties, 363 to 387 
 
 limitation of actions on, 715 
 
 when inducement of title necessary, 363 
 
 deed, the time and place of making it, 311, and 264, note (n) 
 
 profert, when necessary, &c. 365, 396 
 
 oyer of deed, 430 
 
 consideration of deed, 366 
 
 how much of deed to be stated, and how, 367, 368, and references 
 
 there, 
 variances, 305, 308 
 
 reference to deed, and lessee's entry, 368 
 derivative title, how to be shown, 368, 9 
 averments of plaintiff's perforanance, &e. 327 to' 331, 368 
 on records, 370, 371 
 
 on recognizanees! and judgments, ib. 
 general rule, not impeachable in pleading, ib. 
 how to declare on, ib.. 
 what variance fatal, 371 
 prout patet per recordum necessary, ib. 
 OB statutes, 871 to 306 
 
 commencement of declaration qui tarn, &c. ib. 
 statement of the statutes, 372 
 statement of the offence, ib. 
 
 time when it took place, ib. 
 f)lade where, (see title Venue,) ib. 
 exceptions in act, ib. 305, 308 
 conclusion contra formam statuti, 372 
 per quod\ actio acerevit, Sec. 373, 374 
 breach, (see Assumpsit,) 374 
 conclusion, 418, 419 
 
 conciseness in forms of, prescribed by Keg. Gen. Trin. T. 1 W. 4, 723 to 727 
 Pleas in, 
 
 analytical table of defences, 471 
 
 pleas in, in general, general issue when proper, 481, 482 
 
 Vol. I. . 98 
 
782 iNfDEx. 
 
 DEBT, ACTION 0¥— (continued.) 
 
 all matters in confession and aToidanee must be pleaded specially, 515, 743, 
 
 744 
 in debt on simple contract and legal liabilities, 481 
 
 nil debet abolished, 481, 518, 743 
 
 never indebted, how far admissible, 518 
 
 non detinet, 481, 743 
 
 statute of limitations to be pleaded, ib. 
 
 tender and set-ofiF, ib. 
 in debt on specialty, 482 to 486 
 when nil debet formerly proper, 481, 482, 743 
 
 on a lease, 482 
 
 for an escape, ib. 
 
 on a judgment against an executor suggesting devastavit, ib. 
 when not, and that plaintiff should demur, 482, 483, 581 
 when non est factum formerly proper, 483, 484 
 
 what might be given in evidence under it, ib. 743 
 when the plea must be special, 743 
 in debt on record, * ' 
 
 when nil debet or nid tiel record formerly proper, 485, 6 
 
 when the plea must be special, ib. 
 
 when may be pleaded, ib. 
 in debt on a statute, 
 
 what plea proper, 486 
 
 what must be pleaded, ib. 518 
 qualities of, (see titles I^as, in general.') 
 
 if non assumpsit be pleaded, it is nullity, 521 
 Kbplications in, 
 
 1, several descriptions, 
 
 on simple contract, 584 
 
 on specialty and assignment of breaches, 584 to 588 
 
 on records, 588 
 
 on statutes, ib. 
 
 2, forms of, (see title Replication. 
 
 3, qualities of, (see title Replication.) 
 DEBTOK, 
 
 appointed executor, debt to testator when released, 52 
 DEBTS, 
 
 jury empowered to allow interest on, 720 
 
 or give damages in nature of, 721 
 DECEASED, 
 
 when executor or administrator of, may sue for injury to personal or real proper- 
 ty, 20, 68, 70 
 DECEIT, (see title Fraud.) 
 
 what the proper remedy for, 137 
 
 assumpsit does not lie for, when, 107 
 
 agent not liable for, when, 39, 40, 84, 5 
 DECLARATION, (see the respective actions.) 
 
 I. Definition and division of subject, 240 
 
 II. Eecent alterations by 2 W. 4, c. 39, ib. 804 
 writs before 2 W. 4, c. 39, 240, 241, 704 
 original writ abolished by, 241 
 
 other write prescribed, 241, 2 
 
 commencements of declarations under reg. gen. M. T. 3 W. 4, r. 15, 242, 730, &o. 
 after writ of summons, 242, 285, 730 
 after arrest where party not in custody, 242, 285, 731 
 ^ where party is in custody, 242, 286, 781 
 
INDEX. 783 
 
 DEGJjAB.A.TIO'S— (continued. ) 
 
 after arrest of one or more defendant or defendants where one only 
 
 served and not arrested, 242, 286, 731 
 in second action after plea of non joinder, ib. 742 
 conclusion of declaration, 242 
 statement of venue in margin, but not in body, ib. 
 statement of name and abuttals in trespass quare clausumf regit ib. 281 
 consciseness in forms prescribed, 243, 723 to 727 
 second counts when prohibited, ib. 
 but several breaches allowed, ib. 
 m. Its general requisites and qualities, ib. 
 
 1st, should correspond with the process, &c. and how variance to be objec- 
 ted to, 244 
 
 1, in the names of the parties, 244 to 248 
 
 2, in the number of the parties, 248 to 250 
 
 3, in the character in which the parties sue or are sued, 250 
 
 rules and decisions on this point since the uniformity of process 
 act, 251 to 253 
 
 4, with cause and form of action in bailable cases, 253 
 
 must correspond with affidavit to hold to bail, 254 
 2dly, must state all circumstances essential to the support of action, 254, 5 
 3dly, of the certainty requisite in a declaration, 233, 256 
 
 1, as to the parties to the suit, 256, 7 
 
 2, the time when material facts took place, (see title 7'me,)2o7 to 260 
 
 the present practice in declaring as to time, 259 
 
 3, the place where, 260 
 
 4, in stating the cause of action, 261 
 IV. Its parts and particular requisites, 262 to 421 
 
 1st. the title of the Court and Date in the former practice, 263, 730 
 of what time, ib. 
 special title when proper, 264 
 consequences of mistake, ib. 
 2dly, the title as to the time, 263, 730 
 
 consequences of mistakes in title before 2 W. 4, c. 39, and recent rules, 
 
 264 to 266 
 present practice as to the title of time, 266 
 repetition of time still essential, ib. 
 3dly, venue (see title Venue,) 266 to 279 
 general rules, 266 
 when it is local, 268 
 when it is transitory, 269 
 in actions upon leases, &o. 270 
 when local by statute, 271 . 
 mode of stating the venue, 274 to 277 
 repetition of, in body prohibited, 274, 276, 279 
 consequences of mistake, and when aided, 277 to 279 
 recent alterations respecting venue, 279 
 no venue to be stated in body, 274, .276, 279 
 reg. gen. H. T. 4 W. 4, in trespass, 279 
 name of abuttals of locus in quo, essential, ib. 
 4thly, the commencement, 
 
 1, names of parties and character or right in which they, sue or ar^ 
 sued, 280, 1 
 
 where defendant sued by wrong name, ib. 
 
7»4 INDEX. 
 
 DECLARATION— (coM^iwueci.) 
 
 where plaintiff has sued by wrong name, 281 
 parties how to be described, 256 
 
 2, former mode in which defendant in Court, 281 
 
 in the King's Bench by bill, now abolished, ib. 
 
 where defendant in actual or supposed custody of marshal, ib. 
 
 where defendant in custody of sheriff, ib. 
 
 in the King's Bench by original, 282 
 
 in the Common Pleas, ib. 
 
 summoned or attached, no objection, ib. 
 
 in the Exchequer, 284 
 
 3, brief recital of the form of action. 283, 284 
 
 4, form in case of outlawry, death, &c. 284 
 
 5, by and against infants, assignees, executors, attornies, &c. 284, 285 
 the present forms of commencement in personal actions in all the courts, 
 
 285 
 
 must be entitled at top of the proper court, ib. 
 
 of the very day when filed or delivered, ib. 
 prescribed forms of, by Eeg. Gen. HU. T. 4 W. reg. 15, ib. 740, &c. 
 
 1, declaration after a summons, 242, 285, 731 
 
 2, after arrests, where party not in custody, ib. 731 
 B, where party is in custody, 242, 286, 731 
 
 4, where one or more defendants arrested, and the other defendant 
 or defendants served only, ib. 731 
 
 5, in second action, after plea of non-joinder, ib. 742, (see Non- 
 joinder.^ 
 
 in what cases former commencements to be adhered to, ib. 
 conclusion ib. 
 pledges to be omitted, ib. 
 consequences of deviations from such rules, 287 
 are only irregularities, 289 
 are not ground of demurrer, ib. 
 5thly, regulations affecting the body or substance of cause of action, 287 
 in general, 287, 288 
 Reg. Gren. Hil. T. 4, Will. 4, reg. 4, 5, 6, prohibiting several counts 
 
 288, 739 
 other incidental improvements, ib. 
 admissions on face of declaration, ib 
 of part-payment, 288 
 of part-performance, ib. 
 in actions ex contractu 
 
 1, assumpsit, (see the particulars under title, Assunipsit,) 289 to 360 
 
 2, in debt, (for particulars, ^ee title Debt,) 360 to 375 
 
 3, in covenant, -375, 376 
 In actions ex delicto, 376 to 399 
 
 .general rule as to the mode of stating, 876 
 1st, the matter or thing affected, 
 real property, 376, 377 
 
 prescriptions, customs, ways, foundations, ib. 386 
 abuttals of land, ib. 503 
 goods and chattels, how described, &c. 377 
 2dly, the plaintiff's right or interest in such thing, 378 to 381 
 
 a right independent of any particular duty of defendant, 378 
 public or general right not to be stated, ife. 
 
DECL\KATION— (coM^mMear.) 
 
 particular right implied by aw not to be stated, 378 
 particular right not implied by law must be stated, and conse- 
 qnebce of omitting to show title, ib. 
 mode of stating interest, 
 in person absolute or relative, 379 
 in personal property in possession or reversion, ib. 
 in real property, corporeal or incorporeal, 379 to 883 
 in possession, general rule possession sufficient, 379, 380 
 showing special title, 379, 503, 504 
 
 mode, of showing right where founded on prescription, cus- 
 tom, easements, tolls, &c. 380 to 383 
 in reversion, 381 
 common law mode of declaring, sanctioned by 2 & 3 W. 4, c. 71, s. 
 
 5, 383, 713 
 statement of rights in pleas, ib. 
 a right founded on the duty of defendant, ib. 
 ^ a particular duty, 
 
 1, founded on defendant's contract express or implied, ib. 384 
 
 2, on his particular obligation, ib. 
 
 sheriffs, carriers, innkeepers, &C, 384, 485 
 to repair fences, ways, &c. ib. 
 general dbHgaition of law affecting defendant, ib. 
 
 for not removing a nuisance on defendant's land, 
 &c. ib. 
 variance in abatement of plaintiff's interest and right, consequence of 
 
 it, 385 to 387 
 when omission of the title aided by plea, (see title Defects.) 
 ' 3dly, the injury to such thing, 387 to 395 
 nature of injuries, 
 
 with or without force, 125, 126, 132, 387 
 immediate or only consequential, ib. 
 malfeazance, misfeasance, and nonfeazance, ib 
 proof of part of injury, 387, 409 
 in trespass, 387, 388 
 in ease, 388 
 
 for nonfeazance, ib. 
 scienter when material, ib. 
 defendant's intent or motive, 389 to 391 
 the injury itself, 391 
 
 in general how to be stated, ib. 
 
 in actions for obstructing water-courses, nuisances, &c. ib. 
 in actions for slander,*libel and (see title Slander,) 399 to 408 
 the time when committed, 393, 4 
 the place where committed, 394, 5 
 4thly, the damages, (see title Damages,') 338, 395, 376 
 5thly, of several counts, (see title Counts,) 408 to 418 
 6thly, the conclusion, 418 to 420 
 7thly, profert and pledges, 420, 1 
 Defects in, when aided,.^(see title Defects.) 
 judgment of non pros, for not declaring, when signable, 727 
 time of delivery of, 730 
 declaring against prisoners, 733 
 DECOY, 
 
 remedy for injury to, 142 
 
786 INDEX. 
 
 DECREE, 
 
 assumpsit does not lie on, when, 106 
 
 when no action lies, 106, 111, 112 
 
 when debt lies on, 111, 112 
 DEED, (see titles Debt. Delivery. Escrow. ) 
 
 assumpsit does not lie on, &c. 99, 103, 104 
 
 when assumpsit lies, though a deed given, 103 to 105 
 
 given for rent does not extinguish it, 105 
 
 when debt lies on, 110 ■ 
 
 who to sue on, (see title Parties,) 2, 3j 4, 8, &o. 
 
 who to be sued, (see title Parties,)-33, 34, 41 
 
 trover lies for, 147 
 
 title-deeds accompany ownership of the estate, detinue for, 121, 2 
 
 parties to be declared against by name they signed, 245 
 
 how to be described in pleading, 868, 867 
 
 to be stated according to legal operations, and exceptions, 305, 307 
 
 no unnecessary part to be stated, 228 
 
 provisoes, exceptions, &c. when to be stated, 304, 308 ■• 
 
 oyer of, 430 to 436 
 
 profert»of, 365 
 
 consideration for, 366, 367 
 
 when presumed, 110 
 
 mis-statement of, when aided by oyer, &o. 433, 4 
 
 consequence of statement of, on oyer, ib. 
 
 when and how to be stated by defendant, ib. 
 
 pleas to actions on, 481 to 485 
 
 replication, &c. thereto, 584 to 588 
 DEFAULT OF APPEARANCE, 708 
 DEFECT OP FENCES, (see title Fences.) 
 DEFECTS IN PLEADING, 
 
 when aided, 1, by pleading over, 671 to 673 
 
 2, by verdict, 673 to 682 
 
 3, by statute of jeofails, 682 to 684 
 DEFENCE, 
 
 defined, 528, 9 
 
 must be pleaded specially, when, 515 
 
 statement of it in a plea, 
 
 form of, 427, 8 
 
 when necessary, 428 
 half defence and when formerly proper, 428, 9 
 full defence, and when formerly proper, ib. 
 
 what proper in a plea of abatement, 456, 7 
 in a bar, 551 
 
 defect of, how to be objected to, 429 
 
 most grounds of, must be pleaded specially, 144, 515 
 DEFENCES, . 
 
 to be pleaded, &c. 509 
 DEPENDANTS, 
 
 who to be, (see title Parties. ) 
 
 several, (see titles Pleas. Several Defendants.) 
 
 costs of, (see title Costs,) 88, 721 
 
 may use the word "defendant," after once mentioning name, .257 
 
 Reg. Gen. Trin. 3 Will. 4, respecting number of, 240, 729 
 
 plea in abatement for non-joinder of, 453, 467, 8, 716 
 
 replication to plea of, 716 
 
 when, may have verdict for part of plea proved, 520 
 
rNDKX. 787 
 
 DEPENDANTS— (con!!mMe<£. ) 
 
 discharge of, when writ not issued by authority of plaintiff's attorney, 708 
 absence of, beyond seas, provided for, 716 
 payment of money by, in certain actions, 719 
 warning to, on writs, 731, 732 
 DE INJURIA ABSQUE KESIDUO CAUSA, {see title SepUcations.) 
 
 when necessary or proper, 610, 616 
 DE INJUKIA ABSQUE TALI CAUSA, (see titles £epUcation. Traverse.) 
 to plea, justifying entry as landlord to distrain, bad, 4 Tyrw. 777 
 when admissible in assumpsit, 484 
 meaning of, and when allowed in general, 604 to 611 
 when proper in an action on the case, 498, 590 
 not proper in replevin, 606, note (e) 
 
 when proper or not in trespass, and in general, 592 to 598, 604 to 611 
 when in the plural, to several j)leas by several defendants, 610, 611 
 when sufficient to a plea under process of courts, not of record, 605, 608, 609 
 efiect of it, compels defendants to prove his whole plea, 606 
 when not advisable, 609 
 
 when should not traverse, but should confess and avoid, ib. ( see title Confession. ) 
 form of it, 610 
 how to be objected to, ib. 611 
 DELIVEKY OF DEED, (see titles Deed. Escrow.) 
 not necessary to be stated, 221, 364 
 plea that it was delivered as an escrow, 433 
 DEMAND, (see title Bequest.) 
 
 in trover, to create a conversion, (see title Trover,) 156 to 160 
 DEMAND, PARTICULAKS OP, 
 
 Keg. Gen. Trin. T. 1 W. 4, respecting, 727 
 DEMISE, (see titles Landlord and Tenant. Rent. Rephvin.) 
 plea of, 529 
 
 plea of, giving color, 530, (see title Golor.) 
 replications denying it, 594, 5 
 showing it determined, ib. 
 several counts on, not allowed, 739 
 DEMURRAGE, 
 
 captain of ship cannot maintain action for, on implied promise, 7 
 DEMURRERS, 
 defined, 661 
 
 Reg. Gen. Hil. T. 4 W. 4, respecting, 733, 734, 741 
 to pleas to jurisdiction, 446, 465 
 to pleadings in abatement, 
 
 need not be special, 465, 466 
 
 form of, where plea is properly in abatement, ib. 
 how mistake aided, ib. 
 
 form of, where plea concludes, &o. in bar, ib. 
 to a replication in abatement, &c. in bar, ib. 
 joinder on demurrer, 465, 667 
 
 on argument, no advantage can be taken of defects in declaration, ib. 669 
 judgment on, 466, 701 
 for plaintiff, 466 
 for defendant, ib. 
 costs, ib. 
 to declarations, pleas in bar, replications, &c. 
 defined, 661 
 
788 INDEX. 
 
 DWiUEKEBB— (continued. ) 
 general rules, 
 
 when advisable to demur if defect be in substanee, 661 
 special demurrer for want of form, when proper or advisable, 662 
 to what objections the opponent cannot demnr, ib. 
 general or special, distinction, &c. 663 
 cannot demur for mere surplusage, 226 
 or to a protestation now unnecessary, 617 
 special when necessary or advisable, 663 
 when not necessary at common law, ib. 
 operation of the statute 27 Eliz. c. 5, ib. 
 operation of the statute 4 Ann. c. 16, ib. 
 to a part or whole, 
 
 of a declaration or count, 664, 665 
 
 when only to demur to part of a declaration, 664 
 must demur to the whole in case of misjoindeip, 665 
 of a plea, avowry, or replication, &c. 
 should demur to the whole, ib. 
 exception in a plea of set-ofF, ib. 
 4 in general to the objection must appear on the face of pleadings, 197, 
 665, 666 
 
 when it need not, ib. 
 
 how to be shown by oyer, &o. ib. 
 
 insufficiency of bail-bond, ib. 
 
 usury, &e. must be pleaded though it appear upon the face of the 
 
 deed, 484 
 insertion of deed after oyer demanded, 666 
 form of demurrer, 
 
 no precise form essential, and though informal sufficient, 666- 
 no demurrer to a demurrer, ib. 
 
 usual form of a demurrer to a declaration or count, &c. ib. 
 to a plea in abatement or in bar, ib. 
 to a replication, &c. 67 
 ' as prescribed by Reg. Gen. Hil. T. 4, ib. 71 
 
 a special demurrer, ib. 
 must particularize the objection, and how, 668 
 one well-founded objection to be stated in the margin, ib. 
 conclusion of, ib. ' 
 
 on argument of demurrer, judgipent will be against party whose first pleading was 
 bad in substance, ib. 
 
 exceptions, &c. 668, 669 
 
 do not extend to objections aided by pleading over, 668 
 but on demurrer to a plea in abatement, defendant cannot object to declar- 
 ation, 669 
 rule only applies to defects in substance, 668, 669 
 joinder in demurrer, 
 
 when the plaintiff may add it, 669 
 
 form of, prescribed by Reg. Gen. Hil. T. 4 W. 4, 667, 741 
 to a demurrer to a replication, 667 
 to a demurrer to a plea, 670 
 
 to a demurrer to a replication to a plea in abatement, &c. ib. 
 need not be signed, 734 
 if judgment against plaintiff, when he may commence a fresh action, 197, 198 
 costs of, defendant entitled to, 196, 197, 670, 721 
 enactment of 3 & 4 WiU. 4, c. 42, s. 34, respecting, 670, 721 
 to be delivered not filed, 733 , 
 
 DENIAL, (see title rmi)erM.) 
 
INDEX. 789 
 
 DEPARTURE, 
 
 defined and why objectionable, &c. 644 
 
 a new assignment not a departure, and why, (see title New Assignment.') 
 
 objectionable in a replication^ 644 
 
 what amounts to it, ib. 645 
 
 objectionable in a rejoinder, and instance, 645, 646 
 
 to avoid it, must plead all defences in first instance, 646, 509 
 
 what supports the declaration or plea not a departure, and instances, 647, 
 648 
 
 a variation in immaterial matter, not a departure, 647 
 
 how to be objected to, 648 
 
 from new rules, how taken advantage of, 740 
 DETAINER, WRIT OF, 
 
 introduction of, by 2 Will. 4. c. 39, 94, 706, 711 
 
 commencement of declaration on, 242, 285 
 DETINUE, ACTION OF, 
 
 parties to it, (see title Parties.') 
 
 is a remedy to recover a chattel specifically, 121 
 
 action more frequent since 3 & 4 Will. 4, c. 42, s. 13, ib. 
 
 1, what thing may be recovered by it, ib. 
 
 2, what property the plaintiff must have, 122 
 
 , 3, for what taking or detention it is sustainable, and against whom, 122 to 
 124 
 
 the pleadings, verdict, and judgment in general, 124 
 
 declaration in, how to describe the goods, and plaintiff's property, 376, 377, 
 380 
 
 pleas in, 448, 518 
 
 non-detinet, what to put in issue, 518 
 DEVASTAVIT, (see title Executor.) 
 
 when executor liable for, 20, 69 
 
 executor may sue, suggesting it, 69, 361 
 
 representative may sue as such, though- guilty Of, 20 
 
 declaration against executor, suggesting it, 69, 361 
 
 not guilty, &c. good plea to action for, 486 
 DEVISEE, (see titles -4Mi^ees. Heirs. Parties.) 
 
 when he may sue upon a contract. Id, 17> 18, 21 
 
 when he may be sued thereon, 48, 52, 53 
 
 when covenant does not lie against Mm, it*. 
 
 of obligor haviAg assets liable, 52, 53 
 
 of land, debt peculiar remedy against, on covenant of devisor, 52, 53, 116 
 
 when he may sue for a tditt, 06, 70, 177 
 
 when nfay be sued for it, 89, 91 
 
 may sue in trespass when, 177 
 
 infant devisee cannot pray the pSTol Us demur, 447, 490 
 
 pleas by. 490, 491 
 DILAPIDATIONS', (see titles Landlord and Tenant. IFosfe.) 
 
 action for, at suit of succeeding rector, on custom of realm, 91, 141 
 
 action for, against executors of rector, ib. 
 
 declaration for, 384 
 DILATORY PLEAS, 702, (sea iii\&s Abatement. Sham Pleas.) 
 DISABITITY. 
 
 party cannot plead his own, 44 447, note (5), 449 
 DISCONTINUANCE, 
 
 what creates a discontinuance in pleading, omitting to reply, &c. to part, &o< 
 
 523, 524 
 when plaintiff may discontinue and commence fresh action, 198, 218 
 when he should discontinue, 198, 212, 577, 578 
 
 Vol. I. 99 • 
 
790 INDEX. 
 
 DISCONTINUANCE— (coM^iMwerf. ) 
 
 on a plea of autre action pendent, discontinuing former action does not avoid 
 effect of pleti, 453, 454 
 ■DISJUNCTIVE COVENANTS, {a&^\Mss Mernative Gouenants. Traverse.) 
 DISSEISEE, 
 
 may bring trespass, when, 175, 176 
 DISTINCT SUBJECT-MATTER OF COMPLAINT, 
 
 meaning of term, 414 to 418 
 DISCHARGE, 
 
 by bankruptcy, &c. may be applied to plea of non-joinder, 467 
 matters of, must be pleaded specially, 515 
 DISTRESS, 
 
 when executors may recover arrears of rent by,, 
 remedy for illegal distress, 138 
 who should be defendants, 88 
 when case or trover, 138, 153 to 155 
 replevin, 162, 164 
 not assumpsit, 100 
 when assumpsit lies or not, 135, 171 
 remedy for an irregular distress for rent, 88, 138 
 justifications under, when to be pleaded, 502 
 avowries, &c. 499, 740 
 pleas in bar, 565, 590, 740 
 for rent, when need not be pleaded in trespass, 502 
 but when advisable, ib. 
 when several pleas allowed, 565, 740 
 for tolls, &c. must be pleaded, ib. 
 damage feasant must be pleaded, ib. 740 
 Wheti distress not advisable, 306 
 supportable where an eviction from part of land, 116 
 DISTRINGAS, 
 
 enforcing appearance by writ of, 705 
 
 form of writ of, 711 
 non omittas clause in, 730 
 DISTURBANCE, 
 
 of rights of common, ways, &c. 132, 142 
 declaration for, &o. 380, 381, 387, 391 
 DIVIDING, &c. causes of action, 198, 199, note. 
 DIVISIBLE ALLEGATIONS, 614, (see 5 B. & Adol. 395) 
 DIVISION* 
 
 of England, whit taken notice of by the courts, 218 
 of pleading, 239 
 DOGS, (see title Animals.) 
 DOUBLE PLEAS, (s^e iith Several Pleas.) 
 DRUNKENNESS, 
 
 might formerly have been given in evidence in assumpsit under general issue, 476 
 in debt, 
 DULY, 
 
 effect of this word in pleading, 236, and note (k) 
 DUPLICITY, i- 8 . \ J 
 
 in pleading, in general, when objectionable, 226 to 228 
 
 when may have several counts, ice. 408 
 or assign several breaches, 228, 586 
 
 in a plea in abatement, 458 
 
 in a plea in bar, (see title Pleas in Bar,) 553, &o. 
 
 only th« ground of special demurrer, 228 
 
 in a replication, 649 
 DURATION Off WRITS, 707 
 
INDEX. 791 
 
 PURESS, 
 
 money extorted by, assumpsit lies for, 100, 351 
 might formerly be given in evidence under non assumpsit, 476 
 must be pleaded specially in debt, 483, 384 
 replication to plea of, 584 
 DUTY, 
 
 action for breach of (see titles Assumpsit. C<ise.) 
 EASEMFNTS, (see titles OojMmore. y^ay,^c.) 
 
 right to must be pleaded specially in trespass, 505, 506 
 case, the remedy for injury to, 142, (see title Gase.) ' 
 
 ECCLESIASTICAL COUHT, 
 
 wife may sue alone for a legacy in, 28 
 ECCLESIASTICAL LAW, (see title Rector.) 
 ' when it need not be stated in pleading, 216 
 EJECTMENT, (see title Mense Profits.) 
 
 or trespass must be brought for rent if occupation adverse, 104 
 
 general nature of the action, 187 
 
 tenants in common, when must sever in action of, 62 
 
 statute 1 Will. 4, as to ejectment in issuable term, 187 
 
 for what property it lies, 188 
 
 what title necessary, 189 
 
 aS to joint tenants, &e. suing separately, &c. in, 65 
 executor may sue in, 69, 70 
 wife must join in, 74, and note {y) 
 assignee of part of reversion, 17, note (A) 
 what right of entry or possession is requisite, 190 
 as to an actual entry, 191 
 
 lessor of plaintiff to recover on strength of his own legal title, 189 
 exception te this rule on ground of estoppel, &c. ib. 
 or where prior possession against wrong-doer, ib. 
 outstanding term, 190, and note (i) 
 death of lessor of plaintiff, &c. 191 
 equitable title, 190 
 lessor's name cannot be inserted in declaration without his consent, ib. 
 what ouster must be proved, 191 
 
 as to the nature of the injury, and by whom committed, ib. 
 pleadings, damages, costs, and judgment in, in general, ib. 
 
 plea in, 507 
 venue local, material, 266, 271 
 what length of possession vrill bar, 190, 191 
 service of declaration in, 728 
 ELECTION, of form of action or remedy, 
 
 when the plaintiff may have trespass or case, 125 to 132 
 when he may waive tort and sue in assumpsit, 107, (see title Assumpsit.) 
 general rules and choice how far affected by, 
 1st, the nature of the plaintiff's right, 207 
 2dly, security of bail in the action and the process, 208 
 3dly, the number of the parties, ib. 
 
 4thly, the number of the causes of action, and joinder thereof, 209 
 5thly, the nature of the defence and plea, 210 
 6thly, the venue, ib. 
 7thly, the evidence, 211 
 8thly, the costs, ib. 
 9thly, the judgment and execution, ib. 
 consequences of election of remedy, 212 
 of several pleas, 560 to 565 
 of several replications, (see title Replication,.) 
 
792 INDEX. 
 
 ENKOLMENT, (see title Oyer,) 435 
 ENTRY, 
 
 when essential in trespasa, 176, 7 
 to avoid a fine, 191 
 
 what is an entry to create a trespass, 178, 9 
 
 when not essential in ejectment, 190, 1 
 
 of lessee, statement of it, ,368 
 EQUITY, 
 
 when remedy in court of, only, 2, 3 
 
 will give relief Against executor of wrong-doer, 91 
 
 matter of defence in when not payable, 469, 470 
 EQUITABLE EIGHTS, 
 
 courts of law do not directly recognize, 1, note (a) 
 EQUITY OP REDEMPTION, 
 
 not assets to 'charge heir or devisee at law, 52 
 ERROR, WRIT oi? 
 
 where brought, 239, 734, 5 
 
 allowance of error on writs of, 721 
 
 execution of writs frivplous, 734, 5 
 
 other points, 735 
 ESCAPE, 
 
 executor may sue for, 69 
 
 but be sued, 90 
 
 remedy for, if on mense process, case, 138, 9 
 
 if on final process, debt or case, ib. 862 
 
 declaration for, 362, 390 
 
 plea to action for, 482, 497, 744 
 affidavit of truth of, 497 
 
 replications in actions for, 594 
 
 new assignments in, when proper, (see title New Assignment,) 63 
 ESCROW, delivery of a deed as such need not, but, may be pleaded, 480 
 ESTATE, (see Title.) 
 ESTOPPEL, 
 
 what arises from, 603, note («) 
 
 in case of landlord and tenant, 603, 4 
 
 when a party is estopped, 603 
 
 when a fgrmer verdict wd judgnjent not an estoppdi 478, 604, note (c) 
 
 by executing deed, 604 
 
 when by defendant's appearance, 244 to 248 
 
 pleadings of require what accuracy, 509 
 
 plea of, 
 
 matters of estoppel must be relied on in conclusion, 659, to 604 
 
 replications, forms of, 602, 3, 4 
 
 commencement of it, ib. * 
 
 body of it, ib. 
 
 conclusion to rely on estoppel, ib. 
 
 demurrer in respect of it, 604 
 
 traverse of, bad when, 611 
 EVICTION, (see title Landlord and Tenant.) 
 
 might formerly be given in evidence under nil debet, 482 
 
 debt for rent, after, 112, 117 
 
 statement of by title paramount, 335 
 EVIDENCE. 
 
 Tjirhen law presumes a fact, it need not be stated in pleading, 221 
 nor need state a fact which should be stated by other side, 222 
 
 mere matter of, need not be stated in pleading, 225, 540 
 
 what statement of inducement must be proved as alleged, 291, 292 
 
 need not prove a whole inducement, when. ib. 385 
 
INDEX. Y9o 
 
 EVIDENCE— (co«<iMMe<?. ) 
 
 of variances in assumpsit in stating consideration, 297 to 301 
 or in stating^ the promise, 305 to 817 
 in debt, 371, 437, 8 
 
 in torts, 385 to 887, 891, (see title Case.) 
 plaintiff need only prove part of a breach, (see title Breach.) 
 damages need not be proved, when, (see title Damages.) 
 when defendant will succeed if only part of justification to be proved, 541, 546 
 conviction conclusive evidence of regularity of proceedings, when, 183 
 EXCEPTION, in deed, &c. when to be stated, 304, 308 
 
 to bail, 727 
 EXCESS, (see titles Aggrcuvation. New Assignment.) ' 
 
 EXCHANGE of GOODS, 102 
 EXCOMMUNICATION, (see title Outlawry.) 
 of .plaintiff, plea of in abatement, 448 
 two excommunications not pleadable in abatement, 458 
 puis darrein continuance, 658 
 EXCUSE, 
 
 statement of matter in excuse of plaintiff's performance, 326 
 pleas in excuse of trespass, 505 
 replication to such plea, 596 
 EXECUTION, (see titles Sherifs. Writs.) 
 replevin does not try legality of, 164 
 of writs, 729 •. 
 EXECUTOE, (see title Legacy.) 
 de son tort, 51, 151 
 liability of for costs, 21 
 
 when executor may and may not sue on a Contract, 19 to 22, 359 
 liability of executor trustee, 34 
 
 when he may or cannot be sued on a contract, 50 to 53 
 not liable on implied covenant of tenant for life, a lessor, 51 
 
 on which of the common counts he may sue and be sued, 203 to 205 
 assumpsit, peculiar remedy against, when, 102, 112 
 when debt does not lie, 113 
 when objection to form of action waived, ib. 
 of co-obligor, when liable in equity, 50 
 in case of husband and wife executrix, 29, 58, 74 
 when personally liable on contract, 51, 52 
 when liable for devastavit, (see title Devastavit.) 
 
 when he may sue for a tort, (see title Actio Personalis, 20, 67, 69, 70, 715 
 in trover, 68, 152 
 in replevin, ib. 164 
 in trespass, 68, 69, 169, 177 
 for arrears of rent, 122 
 
 .when he may be sued for tort of testator, 70, 89, 90, 715 
 not on a penal statute, 52 
 of sheriff, when liable, 90 
 who to sue in ease of death of, 22 
 refusing to act when liable, 20, and notes, 
 if several, all should join, 20 
 
 and all to be sued; 52 
 joinder in action by and against, (see title Joinder,) 203 to 205 
 misjoinder in suing, when no objection, 62 
 executor of a deceased partner, &c. 19, 67 
 when not liable to eo«ts; 204, — 10 B. & C 
 declarations in actions by or against, 
 
 at the suit of an executor in debt, &c. 361 
 a^'ain.st an executor de son tort, ice. 51 
 
794 INDEX. 
 
 EXECUTOR— (cowimwed) 
 
 to take case out of statute of limitations, 360 
 suggesting a devastavit, (see title Devastavit, ") 361 
 against, for rent, 369 • 
 
 pleas in actions by or against, in general, 2, 489 
 if several executors as to pleading together, 567 
 effect of success, of one defendant executor, 52 
 infant executor cannot plead by attorney, 428 
 ■ consequence of pleading sham plea, 1 Saund, 336, n. 10 
 
 plea puis darrein continuance, of taking out letters of administration, 648. 
 658 
 • replications; taking judgments of assets quando, &c. 490, 589 
 de son tort, when plaintiff may reply that defendant is, 75 
 how to reply to plea of judgments outstanding, 589, 590 
 in actions against them,., 589 
 EXECUTORY CONSIDERATION, 
 
 statement of, in declaration, 296 
 EXECUTRIX, 
 
 coverture of, how to sue, 28 to 38 
 EXTORTION, 
 
 debt for treble amount of damages incurred by, 112 
 case for, 143 
 EXTRA VIAM, new assignment relating to, 631, 632 
 FACTOR, (see titles Agent. Bailee.) 
 when he may sue on contract, 6 
 
 or be sued, 34 
 when he may sue for tort, 62, 151 
 or be sued, 79, 80, 84 
 FACTS, 
 
 what, necessary, to be stated in pleading, 214 to 282 
 not law, to be stated, 214, 540 
 mere evidence of, not to be stated, 225, 540 
 objections to unnecessary statement of, 228 to 232 
 what presumed, and need not be stated in pleading, 221 
 to come from other side need not be stated, 222 
 mode of stating them in pleading, 232 to 237 
 FALSE AND FALSELY, 
 
 when equivalent to the word " maliciously," 390, 1, 406 
 FALSE CHARACTER, (see title Deceit,) 137 
 
 FALSE IMPRISONMENT, (see titles Imprisonment. Malicious Prosecution ) 
 FALSE JUDGMENT, 
 
 defendant cannot plead double on, 228 
 FALSE PLEAS, (the title Pleas in Bar. Sham Pleas.) 
 FALSE return; 
 
 executor may sue for, 69 
 corporation not liable for, 76 
 remedy for, 138, 9 
 declaration for, 385, 390 
 FEIGNED ISSUE, 
 
 assumpsit lies on, 101 
 FELONY, 
 
 plea of attainder of plaintiff of, 456, 448 
 after acquittal for, when trover lies, 150, 154 
 when trespass, ib. 
 FEME COVERT, (see titles Baron and Feme. OereeHwe.') 
 FENCES, - ' 
 
 defect of. who to be sued for, 82, 89 
 remedies for, 126, 139 
 
INDEX; 795 
 
 declaration for, 383 
 plea in bar of defect of fences in replevin, 499, 500, 596 
 plea in trespass, 505, 607 
 
 commoner justifying pulling down new assignment, 635 
 replication to plea of in trespass, 596, 607 
 FEOFEE. 
 
 when may maintain trespass, 63, 175 
 FEOFFMENT, 
 
 how to be pleaded, 221, 545 
 when tenancy at will determined by, 176 
 FERRIES, 
 
 remedy for disturbance of, 142 
 
 declarations for injuries to, 382 ■ 
 
 FICTIONS OP LAW (see title Color.) 
 
 instances of, how far used, and when stated in pleading, 226 
 when the real truth may be shown in opposition to, ib. 
 FICTITIOUS PLAINTIFF or DEFENDANT, 
 
 pleas of, 448, 452 
 FIERI FACIAS (see title Sherigt.) 
 
 case against sheriff for sale return to, 138 
 
 for not selling under, ib. 
 for not levying under, 139 
 for seizing more goods than necessary, 154 
 FINDER, 
 
 of property, may sue for injury to, when, 151 
 FINDING, 
 
 allegation of, in trover, not material or traversable, 151 
 FINE, 
 
 covenant on the warranty in, wife may be sued on, 58 
 FINES, 
 
 debt lies for, 58 
 FISH AND FISHERY, 
 
 assumpsit for use and occupation of a fishery, 345 
 when case or trespass the proper remedy for injuries to, 142, 175 
 plea supplying under right of fishery, 505 
 right to fish in arm of the sea, intended by law, 378 
 liherum tenementum to declaration, 503 
 
 now assignments relating to it, 631, (see title New Assignment.) 
 declaration for injury to, 377, 378, 380 to 384 
 FIXTURES (see titles Freehold. Landlord and Tenant. . Trees.) 
 when landlord may sue purchaser of, 80, note (J) 
 remedy against sheriff for seizing, 138, 139, 185 
 trover does not lie for, when, 146, 155 
 not recoverable under count for goods sold, 345 
 FORBEARANCE, 
 
 assumpsit lies on promises in consideration of, 101 
 debt does not, 118 
 
 assignee of bond may sue on promise in consideration of, 15, 16, 104 
 debtor not liable on promise to pay costs, &c. in consideration of stay of execu- 
 tion, 104, 105 
 
 but third person liable, ib. 
 assignee of ahdse in action may sue in consideration of, 15, 16, 104 
 statement of inducement in declaration on promise in consideration of, 289 to 
 293 
 FORCE AND FOCIBLB INJURY (see titles Oontra Pacem. Vi et Armis.) 
 what so considered in law, and what not, 126, 126 
 
796 INDEX. 
 
 POKCE AND FORCIBLE imTIRY— (continued.) 
 
 actual and how to be described, ib. 106, 387 
 
 implied and how to be described, ib. 
 
 when not to be stated in plea, 490 
 FOREIGN ATTACHMENT, 
 
 custom as to, when not ex officio noticed^ 216, 217 
 
 must be pleaded in assumpsit, 478 
 
 in debt on specialty, 485 
 in covenant, 488 
 FOREIGN BILLS, 726 
 FOREIGN COURTS, 111 
 FOREIGN JUDGMENT, 
 
 when assumpsit lies on, 101, 106 
 
 when not, ib. Ill 
 FOREIGN LAWS, 
 
 when to be pleaded, 216 
 FOREIGN MONEY, 
 
 inquiry, in action for, necessary, 21^, note (y) 
 
 recoverable under denomination of English, 219, 351 
 FOREIGN PLEA, 
 
 what, 442, 443 
 
 affidavit of truth of, ib. 445 
 FOREST LAWS, 
 
 not ex officio taken notice of, 216 
 FORMAL DEFENCE, 
 
 now not requisite in a plea, 429, 459, 554, 741 
 FORMS OP ACTION (see title Action.) 
 
 in general, 94 
 
 origin of the, ib. 
 
 enactment that as new injuries arise new Writs to be frattted, 95 
 
 form of, being new not conclusive of its inadmissibility, 96 
 
 ancient prescribed forms not to be departed from, ib. 
 
 actions are real, personal, or mixed, 97 
 
 are in form ex contractu or ex delicto, ib. 
 
 arrangement of the subjects, 
 in actions ez contractu. 
 
 I. Assumpsit, 98 to 108, (see title Assumpsit. ) 
 
 II. Debt, 108 to 115, (see Detinue.) 
 
 m. Covenant, 115 to 121, (see Covenant,) > 
 IV. Detinue, 121 to 125, (see Detinue.) 
 in actions ex delicto, 
 
 nature of injuries ex delicto, 125 
 
 when forcible or not, ib. 
 
 when immediate or consequential, 126 
 
 when the consequential damage not too remote, 129 
 
 as to legality of original act, ib. 
 
 intent, when material, ib. (see title Intent. ) 
 
 points on which form of action depends, 131 
 
 I. Action on the case, 132 to 146, (see title Case.) 
 
 II. Trover, 146 to 161, (see title Trover.) 
 in. Replevin, 162 to 166, (see title Replevin.) 
 
 IV. Trespass, 164 to 186, (see title Trespass.) 
 
 V. Ejectment,' 187 to 193, (see title Mjectment.) 
 
 VI. Action for mesne profits, 193 to 196, (see title Mesne 
 Prop,s. ) 
 
 consequences of mistake in form of actiott, 197, 198, 453 
 of joinder of actions, 199 to 206 
 of the election c)f action,--, 207 to 212 
 
INDEX. ISl 
 
 POEMS OF ACTIONS— (con<iMMe(^.) 
 
 alterations in forms of, by 3 & 4 W. '4, c. 42, 98, (see titles Oapias, De- 
 tainer. Summons.) 
 
 statement of, in declaration, 253 to 255 
 
 must eorrespand with affidavit to hold bail, 254 
 PORM OF PLEADINGS (see title Pleading.^ 
 
 when no precise words necessary, 232, 213 
 
 ought to 1)6 observed when applicable and why, 96, note (y), 232 
 FORMER RECOVERY (see titles Judgment. Sham Plea.) 
 
 when pleadable, 1,98, 212, 478, and note (c), 544, 604 
 
 should be specially pleaded, ib. 
 
 against one of several contractors, when no bar to proceedings aigaiast the other, 
 43,4 
 
 by one of several parties injured, when no bar to others proceeding, 63 
 
 against one of several wrong doers, when a bar to ptoeeeding agai»st the others, 
 88 
 
 when pleadable to debt on statute, 486, 544 
 
 as to pleading it in assumpsit, 478, and note (c), 544 
 in case, 491, 544 
 
 must be pleaded in covenant, 488, 544 
 
 in trespass, 506, and note {p) 
 ~ plaintiff formerly could not sign judgment though plea of, "be false, 543, 4 
 
 but now may by leave of a judge, 544 
 
 Reg. Gen. Hil. T, 4 W. 4, respecting, ib. 734 
 
 replication to plea of, 582, 636 
 
 as to replication and new assignment to plea of, ib. 
 
 former verdict against plaintiff should be specially pleaded, 478, n. (c), 64if, 604 
 FORTY YEARS, 
 
 limitations in claims of right way, &e. 713, 714 
 FRANCHISE, 
 
 remedy for disturbance of, 142 
 FRAUD, 
 
 never presumed till contrary shown, 221 
 
 money had and received, &c. lies where money obtained by, 100, 137, 144, 
 208, 352 
 
 when parties may sue for goods sold where there has been, ib, 
 
 of action for, 137, 210 
 
 when advisable to sue in assumpsit where there has been, 137, 144, 201 
 
 when case preferable, 137, 210 
 
 where fraud, ndw to avoid plea of statute of limitations, 210 
 
 when and how to be stated in pleading, 120, 338, 743 
 
 need not state particulars of, in plea or replication, 537, 582 
 
 must be pleaded in debt, 582, 3, 743 
 
 replication to release obtained by, in assumpsit, 582, 
 
 replication to plea of, in debt, 584 
 
 judgment kept on foot by, replication of, 581 
 FRAUDS, STATUTE AGAINST, 
 
 formerly need not, but now must be pleaded in assumpsit, 480, 528, 74S 
 
 statement of observance of requisites of, when necessary or not, 222, 303 
 
 when necessary in a plea, 303, 534, '743 
 FREEHOLD, ^ ^ ^^^ 
 
 when trover wiU lie for an injury to, ("see title Fixtures. Trees.) 146 
 
 when replevin will not lie, 163 
 
 indebitatus assumpsit for freehold, &c. sold, 343 
 FREEHOLDER, 
 
 when to prescribe, 505, 6 
 FREE WARREN, 174 
 
 Vol. I. 100 
 
798 iNDBr 
 
 FEEE CHASE, 174 
 FREIGHT, 
 
 -who may sue for it, 7 
 who may be sued for it, 49 
 
 form of action to recover, 101, 2, 109, 118, (see title Charter-Pcaiy.) 
 count for upon charter-party allowed, 739 
 FRIENDLY SOCIETY, 
 
 treasure of, for tinie being, may sue, 16 
 FULL DEFENCE, 
 
 distinction between, and half defence virtually abolished, 429 
 FUNERAL EXPENSES, " • 
 
 executor, when liable for, 205, note (/) 
 GAME, 
 
 property therein, and remedies relating to, 168 
 two may be sued for keeping dog to kill, 86 
 GAMESTG, 
 
 whether two can be sued jointly, for, 86 
 might formerly be given in evidence in plea in assumpsit, 477 
 but now must be pleaded specially, 743 
 must be pleaded in an action on a deed, 484, 743 
 replication to plea of, in assumpsit, 581 
 in debt, 584 
 GAS, 
 
 assumpsit for, 107 
 GAVELKIND, 
 
 customs, when not to be stated in pleading, 217 
 GENERAL CONCLUSION, 
 prescribe form of, 726, 7 
 GENERAL ISSUE (see title Pleas in Bar, and each particular action.)^ 
 general observations relating to, 472, 513, 514, 525 
 special plea amounting to, how to be objected to, 527 
 when advisable or not to plead the general issue, 507 
 Stat. 3 & 4 W. 4, c. 42, s. 1, respecting, 715 
 Reg. Gen. respecting, 738, 742 to 745 
 GIFT, 
 
 of goods, where donee may sue in trover, 150 
 GOODS, 
 
 how to be described in pleading, 377 
 assumpsit lies for goods due for toUs, 101 
 GOODS SOLD (see title Sale.) 
 
 assumpsit for, when common count proper or not, 345 to 847 
 when declaration must be special, ib. 
 variances, 315 
 debt for, 108, 9 
 
 when trover does not lie for, 146, 147, (see title Trover.) 
 as to suing and declaring before credit for, elapsed, 144, 346 
 as to waiving tort, and suing for, 100, 137, 144, 208, 351, 352 
 difference between count for goods sold and delivered, and goods bargained 
 
 and sold, 345 to 347 / 
 plea of non assumpsit to action for, 743 
 GOVERNMENT AGENTS, 
 
 bow far liable to be sued on a' contract, 37 
 GRANT, 
 
 statement and traverse of, 483, 363, &c. 505, 594 
 pleading non-existing grant, 505, 597 
 GRANTEE, 
 
 rent accrued due before conveyance will not pass to, 18 
 
INDBX. 799 
 
 GROUND OF DEFENCE, 
 
 when proof of part of plea will suffice, 510, 520 
 trUARANTEB, (see title Surety. Frauds, Statute against.) 
 form of remedy on, 102, 103, 113 
 variance in statement of, 292, 298 
 
 necessary averments in action on, 293, 327 to 331, and 330, note (t) 
 pleas in action on, 740 
 GUARDIAN, 
 
 when to declare by, 284 
 when to plead by, 428 
 HAD AND RECEIVED MONEY, (see title Money had and Received,) 351 to 
 
 366. 726, 743 
 HALF DEFENCE, 
 
 distinction between, and full defence virtually abolished, 429 
 HEALTH, 
 
 remedy for injuries to, 132, 133, 144 
 HEIR, (see titles ZJewisee. Parties.) 
 when to sue on contract, 19 to 22 
 to be sued, 52 
 he may sue for a tort, 66, 67, 69 
 
 * when not before actual entry, 177 
 may bring detinue for heir loom, 122 
 may recover title deeds in detinue, 121, 122 
 trover for, 147 
 .when cannot sue for tort in time of ancestor, 66, 67, 69 
 he may be sued in assumpsit, 104 
 in debt, 110 
 having assets by descents liable on, promise in consideration of forbearance, 105 
 of obligor, liable if named, 110, 52 
 how to declare in action on lease, &c. 368, 369 
 how to declare at suit of, ib. 379, &e. 
 
 against, ib, 
 pleasby, 489, 490' 
 replications in action against, 490 
 HEIR LOOM, 
 
 heir may bring detinue for, 122 
 HERBAGIUM TERR^, 
 
 owner of may support trespass, 178 
 HERIOT, 
 
 replevin lies to try legality of distress for, 164 
 
 when a general avowry for, is or is not sufficient, 499 
 
 seizure for, might before the recent rules be given in evidence under general issue 
 
 in trespass, 502 
 but now must be pleaded specially, ib. 744 
 HIGHWAY ACT, 
 
 parties acting under, when may plead general issue, 506, 507 
 who to be sued under, for work done, 37, 38 
 ^ , or for torts, 76, 77, 85 
 
 venue against parties acting under, 273 
 HOLIDAYS, 
 
 abolition of, 723 
 HOSPITAL, 
 
 liability of subscribers to debts of, 38, n. (e) 
 PUE AND CRY, 
 
 the statute of, repealed by 7 & 8 Geo. 4, c. 27. See ib. c. 31, 78, and note {x) 
 
 remedy when in force, 143 
 
 ease for not receiving examination, 78, 134 
 
800 INDEX. 
 
 HUNDRED, 
 
 liability of, regulated by 7 & 8 Geo. 4, c. 31, 143, note (i)- 
 
 service of process on, 7G8 
 HUSBAND AND WIPE, (see titles Barm and Feme. Parties.). 
 IDIOT, (see title Lunatic.) 
 
 appearance for, 428, n. (p ) 
 
 who to plead for, 551 
 
 Stat. liin. affecting claims by, 714 , 
 IF ANY, 
 
 when bad on special demurrer, 237, n. (m), 526 
 ILLEGALITY in CONSIDERATION or TRANSACTION, 
 
 not presumed till contrary shown, 221 
 
 might before the new rules be given in evidence in assumpsit under general is- 
 sue, 476, 477, 479, n. (0, 480, 743 
 
 must be pleaded in an action on a specialty, when, 483, 484, 743 
 
 replication to plea of, in assumpsit, 581 
 in debt, 584 
 
 effect of illegality of part of consideration of contract, 295, 300 
 
 effect of it appearing in declaration, 300 
 IMMATERIAL ISSUE, (see titles Issue. Rephader.) 
 ILLEGAL DISTRESS, 
 
 acquitted defendant entitled to costs, when, 88 
 IMMATERIAL TRAVERSE, (see titles i?epfea(^er. Beplication. Traverse.) 
 IMMEDIATE INJURIES, 
 
 what, so considered, and remedies, 125, 126, &c. (see titles Case. Trespass.) 
 IMPARLANCES, 
 
 former use of, defined, 436 
 
 when usual or proper formerly in the issue, ib. 
 
 a plea, 436 to 438 
 
 several sorts, 
 
 general imparlance, its nature, use, &c. 436, 7 
 special imparlance, its nature, &c. 437 
 general special imparlance, its nature, &c. 438 
 
 at head of plea in abatement, 455 
 
 former consequence of mistake, ib. 438 
 
 at head of a replication, when formerly proper, 598 
 
 now virtually abolished by Reg. Gen. Hil. T. 4 W. 4, reg. 2, 438, 738 
 
 suggestions in lieu of, 438, 9 
 IMPRISONMENT, 
 
 when trespass lies for, if wrongfal, 166, 7, (se« title Trespass.) 
 
 under color of process, 181 to 186 
 
 justification of, how to be pleaded, 501, 2, 744 
 
 how to be be replied to, 592, 3, 642, 635 
 
 and as to' new assignment, ib. 
 INCONSISTENCY, 
 
 in dates may be demurred to, 259 
 INCORPOREAL PROPERTY, 
 
 remedy for injuries to, 141, 2 
 
 declaration for, &c. 380 ' 
 
 when ejectment does not lie for, 188 
 INDEBITATUS ASSUMPSIT, 
 
 plea of non assumpsit to, 514, 742 
 INDEBITATUS COUNT, 
 
 in assumpsit, general use of, &c. 339, (see title Assumpsit.') 
 form of, 341 
 
 in debt, 361, 2 
 INDEMNITY, 
 
 tender of, before using name of party to an action, 231 
 
^ INDEX. 801 
 
 INDEMNITY, {continued.) 
 
 assumpsit lies on promises of, when, 102 
 debt, 113 
 INDEMNITY BOND, 
 
 pleas to, 484, 535, 6 
 INDENTUKE, (see title Deed.) 
 INDIA BOND, 
 
 who may sue on, 16 , 
 
 INDICTMENT, 
 
 joinder of different offeHces in, when no objection to, 201 
 
 how to frame, 213 _ ' 
 
 how to lay the property in goods stolen in ease of partnership, trusteeship, and 
 
 county and parish effects, 14, n. (g) 
 venue in, 274, 276 
 INDOKSEMENT of PAYMENT, 
 
 not sufficient to take case out of the statute of limitations, 703 
 INDORSEE AND INDORSEE, 
 
 prescribed forms of declaration by and against, 724 
 INDORSEMENTS on WRITS, 
 defective, 520, note 
 Reg. Gen. respecting, 729, 730 
 on writ of trial, 747 
 INDUCEMENT, (see title Assumpsit.) 
 nature of, in declaration, 
 
 in assumpsit, 290 to 293 
 its utility, ib. 
 
 form and req[uisites and proof of, ib. 
 in debt or covenant, 363 
 for torts, 378 to 385 
 in action for libel, (see title Slander.) 400 to 403 
 in a plea what certainty is requisite, 534, 5 
 in a replication containing a traverse, 620 
 when to be proved precisely as alleged, 291, 2, 385, 400 to 403 
 unless traversed, in effect admitted, 401, 742 
 omission of, when fatal, 407, 390 to 393, &c. 
 INFANT AND INFANCY, 
 
 when bond given by plaintiff may still sue in assumpsit for necessaries, 105 
 apprentice cannot be sued on contract, 116 
 ar-.oeunt stated, &:c. does not lie against, 358 
 partner, when to sue, 12 
 
 not to be sued, 43 
 executor or administrator, when he may sue or be sued, 22, 52 
 when liable to be sued for a tort, 76, 124 
 declaration by, form of commencement, 284 
 plea of, must be by guardian, 428 
 
 in abatement, 448, 9 
 infancy formerly need not be pleaded in assumpsit, 476, 743 
 but now must be pleaded specially, 480, 743 
 must be pleaded in debt, &o. on a specialty, 484 
 in covenant, 487, 8 
 in account, 488 
 should be pleaded separately, 567 
 of plaintiff, 448, 9 
 of defendant, ib. 
 replication to plea of, different sorts, 581 
 
 of infancy to a plea in abatement, 43 
 parol demurrer by, abolished, 447, 490 
 confiniiation of promises by, 703 
 
802 INDEX. 
 
 INFANT AND m'EA'^OY— (continued.) 
 
 statute of limitations affecting claims by, 714 
 INFERIOR DEGREE, 
 
 debt of, cannot be set off against one of higher degree, 572 
 INFERIOR COURT (see titles Court. Jurisdiction.) 
 ' pleas of their jurisdiction, 441 to 445 , 
 
 courts of requests, 442, and note (q) 
 
 want of jurisdiction how to be objected to, ib. 
 
 venue how to be laid, 275 
 
 another action pending in, not pleadable when, 453 
 
 when double pleSts not admissible in, 228, 560 
 INFORMATION (see title Indictment.) 
 
 party moving for, waives remedy by action, 212 
 
 venue in, 274, 276 
 INFORMAL COUNT, 
 
 when may be aided, 394 
 INFORMER, (see titles Common Informer. Penal Stattfte,) 
 INITIALS, 
 
 may be used in some cases, 717 
 INLAND BILL, 
 
 prescribed form of count on, 725, 726 
 INHABITANTS of a COUNTY (see title Hundred.) 
 
 when fiable to be sued, 77 
 
 service of process on, 708 
 INJURIES EX DELICTO (see titles Cci^e. Detinue. Ejeptment. Mesne 
 Profits. Replevin. Trespass. Trover.) 
 
 who in general liable, 76 to 85 
 
 who to be sued, (see title Partm.) 
 
 nature of, and distinctions between, considered, 125 to 132 
 
 how to be stated, 
 
 1. The matter or thing affected, 376 to 378 
 
 2. The plaintiff's right, &c. 378 to 386 
 
 3. The injury, 387 to 408 
 
 to real estates of deceased, executor may sue or be sued for, 715 
 INNKEEPER, 
 
 when liable to be sued, 102 
 
 remedy against, form of, 184, 155 
 ■ declaration against, ib. 
 
 plea justifying entering in, 506 
 INNUENDO, 
 
 use of, and when necessary, 406 to 408, (see title Slander.) 
 INQUIRY, 
 
 when necessary, 212 
 
 when judge may order writ of, to be executed in another county, 280 
 
 writ of, to be executed before sheriff unless otherwise ordered, 719 
 
 signing judgment on, 718 
 
 other provisions respecting, ib. 
 INSOLVENT DEBTOR, 
 
 in general, and assignees of, when to sue oq contract, 26 to 28 
 
 Trhen he may sue, 28 
 
 discharge from liability for debt, and wh^n not, 56 to 67 
 he may sue for a tort, 72 
 he may be sued for a tort, 92 
 
 defence of, must be pleaded, 55, 479, 743 
 
 replication to plea of, 581 
 
 discharge of may be replied to plea of nonjoinder, 467 
 INSTALMENTS, 
 
 assumpsit, when peculiar remedy for money payable by, 102, 103, 110 
 
 debt does not lie till whole tluo, ib. 
 
moTsx. 803 
 
 iNBTALMENTS— (continued.) 
 
 otherwise for rent on annual payable at certain tim^s, 113 
 
 but debt lies for penalty of bond, though instalments nbt all dud; 113 
 
 covenant, when proper remedy, 118 
 
 as to assignment of breaches on bond, for monev payable bv, 585; &c. 
 INSTRUMENT, • ^ ^ ' 
 
 misdescription of, in a plea bad, 522 
 INSURANCE, 
 
 liability to pay broker for, 42 
 
 statement of interest of parties in policies of, 743 
 INSURANCE COMPANIES, ' 
 
 may plead general issue, when, 11 Greo. 1, o. 30, s. 43, 506, 715 
 
 not liable in case of fire to damages through loss of customers, 391 
 INTENT, 
 
 when material, 82, 129, 339 
 
 it does not affect the form of action, 129 to 131, 389 
 to be alleged in pleading, 389, 390 
 
 how to be stated, 389 tn 391 
 
 considered by jury in damages, 129, n. (d) 
 
 intent or virtue cujus not in general traversable, 611 to 613 
 
 aliter if it embrace law and fact, ib. 
 
 Inter parties, 
 
 when a person not a party to a deed cannot sue, 3, 4 
 but may be sued, 33 
 
 Interest, 
 
 recoverable in assumpsit, when, lOD, 356 td 358 
 
 when claimable, ib. 
 
 enactment of, 3 & 4, c. 42, s. 28 aud 29, respecting, 357, 720, 721 
 
 recoverable on common count, when, and when not, 356 to 358 
 
 debt lies for, 109 
 
 when debt or covenant must be brought, 110, 118 
 
 damages to cover claim of, in debtj 374 
 
 allowance of on writs of error, 721 
 
 Ireland, 
 
 Irish judgment, action on, 106, 109 
 
 assignee may sue on, 16 
 plea to action on, 486 
 IRREGULARITY, 
 
 as to misnomer in writ, &c. how taken advantage of. Sec. 246, 247 
 
 remedy for injury under irregular process, 181 to 186 
 ISSUABLE PLEAS, 
 
 defined, and when they only can be pleaded, 510, 511 
 i-SSUE (see title ^epfearfer.) . 
 
 trial of in another county, 280, 717 
 
 defined, and different sorts of, 652 
 
 must be single,- but may put in issue several facts, when, 653, 611 to 622 
 
 should be on an afEnnative and negative, and exceptions, 653 
 a material point, (see title Traverse,) 611, 654 
 
 t)f an immaterial issue, 654 
 
 of an informal issue, ib. 734, 741 
 
 modern regulations respecting isstieS, 654, 655, 718, 746 
 
 costs of, how allowed, 412, 413, 741 
 JEOFAILS, Statute of, (see title DefecU.) 682 to 685, 702 
 JOINDER IN ACTIONS, (see titles Misjoinder. Nmj&indeir.) 
 
 of plaintiffs and defendants, (see title Parties.) 
 
 of forms of action, 
 
 several causes of actions which may or ought to bfe joined, 199 
 
804 INDEX. 
 
 JOINDER IN ACTIOl^iS— {continued.) 
 or forms of action, 
 
 general rules as to joinder, 199 
 
 what actions ex contractu may be joined, 209 
 
 what actions ex delicto may be joined, ib. 
 
 actions ex contractu with those ex delicto, when cannot be joined, 201 
 
 what actions of different forms may be joined, ib. 
 
 misjoinder when no objection in criminal proceedings, ib. 
 of rights of action or liabilities, (see title Declaration.) 
 
 general rule, ib. 
 
 by and against a surviving partner, 202 
 
 in case of bankruptcy of one of several partners, ib. 
 
 by and against husband and wife, ib. 
 
 by assignees of a bankrupt, ib, 
 
 by and against executors and administrators, 203 to 205 
 consequence of misjoinder, 205 
 
 of several counts, and misjoinders, (see title Declaration,) ib. 408 to 412 
 commencement of declaration after plea in abatement for nonjoinder, 742 
 JOINDER IN DEBIURRER, (see title Demurrer,) 669, 70 
 issue, (see title Similiter. ) 
 Reg. Gen. Hil. T. 4 W. 4, respecting, 734, 741 
 JOINDER jN ERROR, .- 
 
 must be within twenty days, 735 
 JOINT CONTRACT, 
 
 suing parties to, 42 to 44, 703 
 JOINT TENANTS, (see titles /"ojirtes. Tenants in Common.) 
 must join in action ex contractu, 13 
 when they should join action for a tort, 65 
 must sever in real actions, when, ib. 
 must join in replevin, 13,' 566 
 
 in an avowry or cognimnce, when, ib. 
 when cannot sue each other ex contractu, 39 
 
 in case or trespass, 79, 156 
 in ejectment, 79, 191 
 how and when to be sued, 79, 156 
 when to be sued jointly for torts relating to their land, 83 
 JUDGES, (see title Justices of the Peace.) 
 
 party acting as, when not liable to be sued, 78 
 power of, to make rules respecting pleadings, 714 
 as to admission of written documents, 717 
 of allowing amendments on trial, 719 
 
 to allow money to be paid into Court in cei'tjii,in actions of tort, ib. 
 JUDGMENT, (see title Former Recovery.) 
 
 in different actions, (see each particular action.) 
 
 on bond for rent extinguishes claim for rent, 105 
 
 when assumpsit lies on, ib. 
 
 of Irish and former judgments, 106, 105 
 
 foreign judgment does not merge debt, 103, note (I) 
 
 when debt lies on, 111 
 
 not advisable to bring debt on, in reference to costs, ib. 
 
 scire facias must be brought on after year and day. 111 
 
 assignee of judgment by confession in Ireland may sue, 16 
 
 declarations upon, 370, 1 
 
 variance in stating it, 371 
 
 when may show it was recovered in vacation, 226 
 
 pleas to actions on, 485, 702 
 
 retention of property under, no conversion, 155 
 
 where it may be signed for want of plea, (see titles Issuable. Skum Fleas) 
 
INDEXi 805 
 
 JUDGMEMT'— (cowtoMflrf. ) 
 prayer of, in plea, 558, 9 
 
 plea of judgment recovered, (see title Former Recovery. ) 
 when former judgment is an estoppel, 478, note (c), 603, 604 
 of suffering judgment by default, as to part, 510 ,, 
 
 on pleadings in abatement, (see titles Abatement. Oemurrer,) 466, 702. 
 on pleas to jurisdiction, 446 
 on pleas puis darrein continuance, 650 
 proceedings to outlawry after, 706 
 of non pros, for not declaring, 727 
 to be entered of day when signed, 73ft 
 of nunc pro tunc, 938 
 prescribed forms of, 746, 7 
 
 non obstante veredicto, 656 
 
 JURISDICTION, (see title Venue.) 
 
 in inferior court, cause ^f action to be laid within, 275 > 
 
 claim of conusance of jurisdiction, &c. 422 to 427 
 difference between, and plea to jurisdiction, 422 
 
 pleas relating to, nature and form of, and when to lio pleaded, &c. 441 to 447 
 want of iurisdiction when an obiection in general issue, 440, note (c) 441, 2 
 distinction on, between, and pleas in abatement, 441 
 affidavit of truth, 445 
 replications, &c. relating to, ib. 
 
 when trespass lies in case of defect, &c. of jiuisdivtiou, 181 to 186 
 JUEY, 
 
 empowered to allow interest on debt, 720, 1 
 JURYMAN, 
 
 cannot be sued, 78, 181, 2 
 JUS POSTLIMINII, 
 
 our law when similar, 177 
 JUSTICES OE THE PEA.CE, 
 
 when liable to be sued, 78, 79, 181, 183, 184 
 remedy against, when trespass, 182, 183 
 when case, 134, 143, 183 
 may plead general issue, 506, 715 
 venue, in coition against, local, 272, 3 
 JUSTIFICATION, (see title Tre^ms.) 
 
 of bail, 727. 8 
 KING, 
 
 what matters relating to, need not be stated in pleading, 214 
 whether a person who has intruded on, can support trespass, 176 
 may traverse after a traverse, 621 
 covenant in action on lease by, 118 
 KNOWLEDGE, (see titles Intent. Scienter.) 
 
 LANDLORD and TENANT, (see titles Assignee of Land. Case. Upmnant 
 Bent, Title. ) 
 
 assumpsit for rent, non repair, &c. 101, 102, 105, 106 
 
 of the common count for use and occupatibn, form of, and wheii lies, &c. 344 
 
 when not, 107 
 debt for use and occupation, 109 
 debt on lease, when it lies, 109, 112, 113 
 
 when not, ib. 
 covenant, the usual remedy on leases, and when it lies, &c. 116 to 120 
 covenant lies against lessee where an assignment by him, when, iJtS 
 tenant holding oyer, debt lies for double value, 112 
 Vol. I. 101 
 
806 i&DBiX. 
 
 LANDLORD an? TENANT— (corafowwec?.) 
 executor may sue for, 69 
 tenant may be sued in assumpsit for rent, 105 
 
 when debt must be brought for appointment of rent where an eviction, 112, IVf 
 
 when lessee liable, notwithstanding assignment, 48, 49, 117 
 
 assignee of lessee, when liable, 47 to 49 
 
 under lessee, when not liable, 49 
 
 when the assignee of landlord, or guarantee of reversion may sue, 16 to 18 
 
 feme marrying before rent due, who to be sued, 57 
 
 when trover or case lies for fixtures, crops, &c. 134, 140, 145, 152 
 
 when to sue in case for injury to reversion, ib. 
 
 remedy where trees wrongfully cut down during lease, 149 
 
 case for waste, 140 to 142 
 
 rsrnedy for injury where premises in possession of tenant, 140 
 
 where lessee a bankrupt, who to be sued, 53 to 55 
 ' as to tenant disputing title, 603 » 
 
 what sufficient surrender of tenancy, 47 
 
 bond taken for rent no extinguishment, 105 
 
 but judgment obtained on, is, ib. 
 
 remedy against sheriff for not paying year's rent, 143 
 
 remedy against landlord for wrongful distress, (see title Distress. ) 
 LAW, 
 
 what laws. Court ex officio takes notice of, 216 
 
 foreign laws, not noticed, when, ib. 
 
 common law rights noticed ex officio, ib. 
 
 when action founded on law obligation, no consideration need be stated, 383 
 
 matter of, when traversable, and when not, 612, 613 
 
 mistake of, when immaterial, 220, 221 
 
 pleadings should state facts, not mere legal conclusions or presumptions, 214, 
 221, 540 
 
 wager of, abolished, 717 
 LEASE, (see titles Landlord and Tenant. Sent. ) 
 
 debt on lease, 110 to 113 
 
 covenant on, 116 to 120 
 
 how to declare on, 363 
 LEASE AND RELEASE, 
 
 purchase by, before entry, may support trespass, 177 
 LEAVE OF THE COURT, 
 
 whether to be stated in a declaration in assignment of second breach, 587 
 
 statement of it in a second plea now unnecessary, 555, 562, 563, 565 741 
 LEGACY. 
 
 wife may sue alone for, in ecclesiastical court, 28 
 
 when recoverable at law, 101 
 
 when legatee may support trespass, &o. 169 
 LEGAL LIABILITY, 
 
 assumpsit upon it, 101, 102 
 
 debt upon, 111, 112 
 
 statement of the consideration in pleading, 134, 293 
 the promise to be alleged, 301 
 LEGAL OPERATION. 
 
 facts to be stated according to, in a declaration, 305 to 307 (see titles Assump- 
 sit. Case. Debt.) 
 
 in a plea, 305 to 307, 534, 535 
 LEGATEE, (see title Legacy.) 
 
INDEX. 807 
 
 LESSEE, (see title Landlord and Tenant,) 
 
 executors of, when may be sued, 49 
 LES80E, 
 
 executor of, may distrain for arrears of rent, 722 
 LETTERS, 
 
 ease for not delivering, 139 
 LIABILITY or THIRD PARTY, 
 
 several pleas in action for, 749 
 LIBELS, (see title Slander.) 
 
 action for, lies against two, 86 
 
 defendant cannot pay money into Court in action for, 719 
 LIBERUM TENEMENTUM, Plea op, 
 
 or tlie common bar explained, &c. 503, 628 
 
 what title may be proved thereon, 503, 504 
 
 gives implied color, 503, 504, §27, 529 
 
 when advisable to pleiH it in trespass, 504, 527, 529 
 
 might formerly be given in evidence under general issue, 500, 503 
 
 when necessary to plead it in trespass, 505 
 
 replication to, 
 
 1, denying defendant's title, 594 
 
 2, stating a demise from defendant, 595 
 
 3, stating a title before the defendant's, ib. 
 
 4, new assigning the trespasses, ib. 628 
 
 when necessary, (see title ITew Assignment, 628 to 641) 
 plea of, now much avoided, 626 
 Reg. Gen. Hil. T. W. 4, respecting, 740 
 LICENCE, 
 
 must be pleaded in trespass, 491, 505 
 
 in case, 491, 744 
 replication denying it, 596 
 
 stating a revocation, &c. ib. 634, 635 
 new assignment, as to, ib. 
 LIEN, 
 
 must be specially pleaded in detinue, 124, 488 
 LIGHTS, 
 
 enjoyment of, for twenty years, indefeasible, 713 
 LIMITATIONS, STATUTE OF, 
 
 proviso in 2 W, 4, c. 39, s. 10, as to comraencement of action, 707 
 amendment of writ, when allowed to save, 250 
 
 when advisable to sue for fraud instead of, in assumpsit, to avoid plea of, 210 
 actions, within what time to be brought, 
 
 assumpsit, six years, 479 
 actions, within what time to be brought, 
 debt on simple contract, six years, 481 
 
 effect of lapse of time as to specialty, 485 
 case (except for verbal slander,) six years, 498 
 criminal conversation, six years, ib. 
 verbal slander, if actionable in itself, two years, ib. 
 trover, sis years, ib. 
 trespass to personal and real property, six years, 506 
 
 to persons, four years, ib. 
 ejectment within twenty years afteradverse possession, 190, n. (5')'190, 191 
 declaration, how to frame, in reference to, 309, 359 
 plea of, must be pleaded in assumpsit, 479, 743 
 what bad words in, 526 
 
 should be pleaded in debt on simple contract, 481, 743 
 in debt on specialty, plea of, solvit ad or post diepi, 485, 743 
 
808 ISTDEX. 
 
 LIMITATIONS, STATUTE OY— {continued.) 
 
 in an action on the case, &c. 498, 743 
 in trover, ib. 
 in trespass, 506 
 
 when plea to be qualified to part of declaration, 546 
 how to be pleaded, (see forms, vol. iii. title Statute of Limitations.) 
 replications to, what proper, 579, 582 
 
 what not a departure in replication to plea of, 647 
 in case of a bill or note, 648 
 trespass, 598 
 
 if bad in part, is bad for the whole, 644 
 of the statute to a plea of set-off, 583, 584 
 when to apply to Chancery to prevent plea of Statute, 577 • 
 Stat. 2 & 3 W. 4, respecting, 712 to 714 
 of action of debt on specialties, 715 
 enactment of 2 W. 4, c. 39, respecting, 707 
 LOCAL ACTIONS, 
 
 trial of in another county, 719 
 LOCAL DESCRIPTION, 741 
 LOCUS IN QUO, 
 
 Eeg. Gen. Hil. T. 4 "W. 4, respecting abuttals, 279, 744 
 LONDON, 
 
 customs of, not ex officio noticed, when, 216, 217 
 
 by custom of, covenant lies, though instrument not executed as a deed, 118 
 LONDON GAS COMPANY, 
 
 assumpsit by, for gas, 107 
 LORDS' ACT, 
 
 who to sue for debt due to person discharged under, 28 
 actions in case of, ib. 56 
 
 discharge under, a bar to debt on the judgment, 56 
 LORD CHANCELLOR, 
 
 when may plead the general issue, 506, 715 
 LUNACY, 
 
 action should be in lunatic's name, 18 
 when lunatic liable, 41, 76 
 ^ appearance for, 428, note {p) 
 to be pleaded by attorney, 551 
 
 might formerly have been given in evidence, or pleaded in assumpsit, wheh it 
 formed a defence, 476, 480, 743 
 in debt on specialty, 483 
 MAGISTRATE, (see title Justices of the Peace.) 
 MAKER OF NOTE, 
 
 declaration by and against, 724 to 726 
 MALFEASANCE, 
 defined, 133 
 
 action for, 387, &o. (^Misfeasance. Nonfeasance.) 
 MALICE, 
 
 of the statement of, in pleading, 389 to 391 
 when affects form of action, ib. 129 
 in action for libel, 390, 391, 406 
 MALICIOUS PROSECUTION, 
 
 of a civil or criminal charge, when case is the remedy, 133, 185, 186 — 12 Price, 
 734 
 
 when trespass lies, 181 to 185 
 two may be sued for, when, 85 
 deolar3:tion for, 388, 390 
 
 must show that prosecution at an end, 133, 67Q 
 
INDEX. 809 
 
 MALICIOUS PROSECUTION— (cowimwerf. ) 
 
 plea of general issue, 490, 744 
 
 defendant cannot pay money into Court in action for, 719 
 MAEGIN, 
 
 venue in, (see title Venue,) 266, 274, 741 
 MARINE LAW, 
 
 when it need not be stated in pleading, 216 
 MARKET, 
 
 remedy for disturbance of, 142, 380 to 382 
 MARRIAGE, (see title Baron and Feme.) 
 
 effect of, in general, on wife's right, 28 
 
 de facto, sufficient, when, 56, note (f), 73, note (g) 
 
 assumpsit for not marrying, 102 
 
 executor cannot be sued for breach of promise of, 20, 68 
 
 declaration for breach of promise of, how to frame, 409 
 MARSHAL, 
 
 detaining prisoner in custody of, 706 
 MASTER AND SERVANT, (see titles Agent. Apprentice. Factor. Parties. 
 Servant. ) 
 
 when the master may sue for the battery, &o. of servant, 60, 61, 134 
 
 when father cannot sue, 61 
 
 servant cannot sue for battery «f master, ib. 
 
 when he may sue on contract, 7, 8 
 
 when for fort to goods, &c, of master, 61, 62' 
 
 when servant may be sued on contract, 34 
 
 when he may be sued for tort, 81, 83, 180 
 
 when the master is liable for a tort, 79 to 82, 131, 180 
 in case, ib, 
 
 in trespass, ib. 178, 180 
 
 remedy by master for debauching or beating servant, 60, 61, 134 
 
 by action on the case, 134 
 of trespass, ib. 167, 8 
 
 master may sue as for work of apprentice where he has been enticed away, 100 
 1 declaration against master for negligence of servant, 392 
 
 form of action for such negligence, 79 to 82, 181, 180 
 MASTER OF SHIP, (see title Captain.) 
 MATERIALS, 
 
 furnished in work, not recoverable under count for goods sold, 348 
 
 count for work and materials, ib 
 MEMBER OF PARLIAMENT, 
 
 mode of proceeding against, to enforce stat. 6 G. 4, o. 16, s. 10, 706 
 
 writ of summons against, 449, 706, 712 
 
 cannot plead misnomer, 450 
 MEMORANDUM, 
 
 in writing, to take case out of statute of limitations, 702 
 
 indorsement of, on writ of capias, 711 
 
 on other writs, 709 to 712 
 
 MERGER, 
 
 of simple contract in specialty, &o. 105 
 
 of civil remedy in felony, 150, 154 
 MESNE PROCESS, 
 
 amendment of, when refused, 246 
 
 stat. 2 W. 4, c. 39, respecting, 704 to 712 
 MESNE PROFITS, 
 
 action for, 
 
 in general, 193, 4 
 when brought, ib. 
 
810 INDEX. 
 
 MENSB VnOYlTS— {continued.) 
 by whom brought, 194, 5 
 against whom, 195 
 the pleadings, 196 
 the damages recoverable, ib. 
 MESSENGER, 
 
 under commission of bankruptcy, remedy against, for illegal taking of goods, 154, 
 171 
 MILITIA ACT, 
 
 venue in actions against officers under, 273 
 officers may ulead general issue, 507, 715 
 MILL, 
 
 remedy for not grinding at, 142 
 declaration for, 380 to 382 
 MISCHIEVOUS ANIMALS, (see title Animals.) 
 MISFEASANCE, 
 defined, IBB 
 
 remedy and declaration for, 134 to 136, 387, &c. 
 several counts for, when not allowed, 739 
 MISJOINDER, (see titles Joinder. Nonjoinder. Parties.) 
 oi parties, 
 
 effect of joining too many plaintiffs in action ex contractu, 13, 14, 20, 23, 
 452 
 
 defendants ez contractu, 44 
 plaintiffg^ in action ex delicto, 66 
 defendants in action ex delicto, 86 
 effect of, in actions by husband and wife, (see title Baron and Feme. ) 
 defendant may plead misjoinder in abatement, but now more usual to de- 
 mur, 452 
 of actions, (see title Joinder,) 
 
 what forms of actions may be joined, 199 to 202 
 
 what causes of action may be joined, 202 to 205 
 
 consequences of misjoinder, 205, 6 
 
 when aided, ib. 
 
 defendant must demur the whole declaration in case of, 205, 664, 665 
 
 if there be a demurrer for it, there cannot be a nolle prosequi entered, 206, 
 
 411 
 effect of, how judgement to be taken, ib. 
 misjoinder of counts in general, 411 
 MISNOMER, 
 
 trespass for arrest by wrong name, 245 — Finch v. Cohen, 3 Dowl. 678 
 how to take advantage of, 244 to 248, 451, 717 
 in declaration. 
 
 of plaintiff 's narne, 
 
 formerly pleaded in abatement, 248, 451, 717 
 of the defendant's name, 
 
 formerly pleaded in abatement, ib. 717 
 of third person's name, when fatal, 247, 257, (see title Variances.) 
 person sued as attorney, may plead he is not, 453 
 of one defendant not pleadable by another, 451 
 plea of, in general, 454 
 
 abolished, and substituted remedy, 245, 464, 717 
 MISREPRESENTATION, (see title Fraud.) 
 
 must be pleaded specially, 743 
 MODERATE CORRECTION, 
 plea of, 501 
 
 replication, &c. to, shoeing excessive battery, 593, 632, 635, (see title New 
 Assignment. ) 
 
INDEX. 811 
 
 MODO ET FOKMA, 
 
 what is put in issue by these words in a plea, 476 
 
 in a replication, 611 
 MOLLITER MANUS IMPOSUIT, (see title Trespass.y 
 plea of, to preserve the peace, 501 
 when formerly not advisable to plead specially, 508, 744 
 of suffering judgment by default, 510 
 replication to, 592, 3, 632, 635 
 MONBf, {s6& \:\t\ei Foreign Money.) 
 
 payment o^ into Court in certain actions of tort, 719 
 in other actions, 742 
 form of plea of, ib. 
 MONEY COUNTS, 
 
 when proper, 349 to 359 
 
 forms of, in assumpsit, 341, 342, 726 
 
 in debt, 361, 2 
 plea of non assumpsit to, 743 
 MONEY HAD and RECEIVED, 726 
 assumpsit or debt, 100, 109 
 when it lies in general, 351, &o. 
 defendant must have received money, ib. 
 for money tortiously received, 100, 352 
 of plaintiiOf 's right or interest in the sum, 353 
 
 defendant must have received the money at the time for plaintiff— of assign- 
 ment of debt — stakeholder, &c. 353, 4 
 deposit on sale, 354 
 
 does not lie if contract not rescinded, 355 
 
 several monies received at different times, one count sufficient, 356 
 Eeg. Gen. respecting plea of non assumpsit to action for, 743 
 MONEY LENT, 
 
 assumpsit lies for, 100 
 debt lies for, 109 
 
 common count for, when it lies, fee. 349, 726 
 plea of non assumpsit for, 743 
 MONEY PAID, 
 
 assumpsit lies for, 100 
 debt lies for, 109 
 
 when common count proper &c. 351, 726 
 MONTH, 217, 18, and notes 
 MORTGAGE DEED and MORTGAGE, 
 debt lies on, 110 
 
 covenant lies on, but debt usual remedy, 116 
 of ejectment by mortgagee, 190 
 mortgage of ship when not liable for rtepairs, &o. 33_ 
 mortgage bond — assigning breaches, 585, fee. 
 MOTIVE, (see title Intent.) 
 MULTIPLICITY of ACTIONS, 
 
 no defence, 96, 97 
 MUTUAL CONDITIONS, 
 
 nature and effect of, 321, fee. 
 MUTUAL CREDIT, (see title Set-off,) 568 to 576 
 
 must be pleaded specially, 743 
 MUTUAL PROMISES, 
 
 statement of, in declaration, 801 
 NAMES, (see title Misnofiter.) 
 
 who to be named as plaintiff or defendant, 256, 7 
 of the certainty required in stating them, 255, 7 
 
812 liJDEX. 
 
 NAMES— (continued.) 
 
 not necessary to repeat thenl ; may say " the said plaiotifif 's " or " defendants," 
 &c. 247, 256, note («) 
 
 of third persons, how to be stated, &c. 247, 257, (see title Variances.) 
 
 consequences of mistake in placing them, 257 
 
 in a plea, 550 
 
 statement of, of defendant in a writ, 729 
 NEGATIVE PJREGNANT, 
 
 instances of, (see title Traverse,) 536, 613, 14, n. (m) 
 
 what amounts to, in a traverse, ib. 
 NEGLIGENCE, 
 
 trespass does not lie for, when, 166 
 
 when party may sue in trespass where there has been, 127-^11 Price's Bep. 608 
 
 assumpsit for, 102 
 
 case for, 134, &e. 
 
 when a count for, should be inserted with trover, 152, 161 
 
 how far master liable for, of servant, 79 to 82, 131, 180 
 
 how far agent liable for, 40, 180 
 NE KELESSEZ PAS, see 3 Nev. & Man. 50) 
 NE UNQUES EXECUTOR ok ADMINISTRATOR, 
 
 plea of, 489 
 
 replication to it, 560, 589 
 NEVER INDEBTED, 
 
 plea of, how far admissible, 518, 743 
 NEW ASSIGNMENT, 
 
 distinction between it and a replication, 624 
 and a departure, ib. 
 
 necessity for, and nature and use of it, &c. ib. 625 
 
 in trespass to persons, 626, 7 
 
 to personal property, 627, 8 
 to real property, 427 
 
 after plea of liherum tenementum, 628 to 630, 634 
 
 as to replying, and also new assigning, 630, 631 
 
 when improper to new assign, 632 to 636 
 
 if a single or continuing trespass, 631 to 633 
 
 to plea of license, 634 
 
 if locus in quo, property described in declaration, ib. 
 
 in case of excess, 635 
 
 if several counts, ib. 
 
 replications in nature of new assignments, 637 
 
 of new assignment in Case, replevin, and assumpsit, ib. 
 
 forms of, two modes of introducing the matter new assigned, 637 
 
 1, where the plaintiff denies the plea and also new assigns, ib. 
 
 2, where the plaintiff merely new assigns, ib. 
 body of, and requistes as to certainty, &c. ib. 
 
 must show the other trespasses or matter complained of, ib. 
 when the new assignment relates to place, ib. 
 
 to time, &c. 638 
 must be of material matter, ib, 
 must be of similar trespasses as in declaration, ib. 
 as those pleaded to, 
 conclusion of, 638 
 
 prayer of judgment unnecessary, ib. 
 pleas upon new assignment, 639 
 
 defendant may plead precisely as to a declaration, ib. 
 may plead double, ib. 
 not necessary to plead de novo what was coyeced by the plea, ib* 
 
INDEX. 813 
 
 NEW ASSIGNMENT— (cowiwMe^;.) 
 
 cannot plead that the trespasses are the same, &c. 639 
 defects, how to be taken advantage of, ib. 
 
 when be advisable to suffer judgment by default to, with reference to costs, and 
 how to be effected, 639, 640 
 
 replication to pleas to, 641 
 NIL DEBET, (see tide i)e6«. Pleas in.) 
 
 when a proper plea in debt before the now rules, 481, 48'^ 
 
 an improper plea in assumpsit, and plaintiff might sign judgment, 521 
 
 when best to demur, 522 
 
 plea of, how abolished by rog. gen. Hil. T. 4 W. 4, 114, 518, 743 
 NIL HABUIT, (see title Estoppel.) 
 
 when no plea, 364, 482, 603 
 
 in replevin bad, 591 
 
 replications or demurrer to it, 603, 604 
 NISI PKIUS, 
 
 amendment of variances at, 719 
 NOLLE PROSEQUI, 
 
 when it may or not be entered against one of several defendants, 44, 88, 567i 
 568 
 
 costs allowed to acquitted defendant, when, 88, 7-1 
 
 on misjoinder, when it may be entered, 205, 20G 
 
 when it may be entered to part or whole cause of action, 567, 568 
 
 not in case of misjoinder, after demurrer, 205, 206, 578 
 NON ASSUMPSIT, (see title Assumpsit, Pleas in. ) 
 
 an improper plea in debt, and plaintiff may sign judgment, 481 
 
 plea of, 475, 472 
 
 use of, much narrowed by reg. gen. Hil. T. 4 W. 4, 108, 513 to 517, 742 
 
 decision on this rule, 513 to 517 
 NON CEPIT, (sec title -Bepfewm. Pleas in.) 
 
 what puts in issue, 499, 500 
 
 avowry or cognizance for a return, ib. 
 
 when not proper, ib, 
 NON DAMNIFICATUS, 
 
 when a good plea, 485 
 
 form, &c. 536, 538 
 
 replication to it, &c. 585 
 NON DETINET, 
 
 when a proper plea in debt, 481, 518 
 
 in detinue, 124, 488 
 
 operation of reg. gen. H. T. 4 W. 4, respecting use of, 124, 518, 743 
 NON DEMISIT, 
 
 bad plea, when, 482, 483 
 
 when may be pleaded in debt, ib. 
 NON EST PACTUM, (see titles Coi'e««M<. Debt. Pleas in.) 
 
 when proper, and what may bo given in evidence under it, 482 to 485, 743 
 
 denial of operation, 483, 518, 743 
 
 as to variances, and setting out deed in oyer, 433 
 NONFEASANCE, 
 
 defined, 133 
 
 trespass does not lie for, 166 
 
 case, peculiar remedy for, ib. 136, 139 
 
 when assumpsit does not lie for, 136 
 
 several counts for, not allowed, 739 
 NON FEOFF AVIT, &c. 483, 3 Nov. & Man. 60 
 NQN INFREGIT.CONVENTIONEM, 
 a bad plea, 487 
 Vol. I. 102 
 
8l4 IXDES. 
 
 NONJOINDER of a party, (see title Parties.) 
 
 oi plaintiff in action ex contractu, how taken advantage of, 3(> 
 
 of defendant partner, how taken advantage of, 46 
 ' f, , . residence of omitted defendant must be stated, ib. 
 
 oi plaintiff" in action ex delicto, how taken advantage of, 66 
 
 of defendant in action ex delicto, how taken advantage of, 36, 87 
 
 of husband or wife, 
 
 1st, as plaintifis ex contrctclu, 33 
 •2dly, defendant ex contractu, 59 
 3dly, plaintiifs ex delicto, 75 
 4thly, defendants ex delicto, 93 
 
 of assignees, 22 
 
 of executors, 
 
 1st, plaintiffs ex contractu, 20 
 2d, defendants ex contractu, 5l 
 
 when to be pleaded in abatement, 13, 467, 542 
 
 when ground of nonsuit, ib. 
 
 when plaintiflf can amend, 464 
 
 how to be pleaded in abatement, &c. 542, 3 (see title Abatement.^ 
 
 enactment of 3 & 4 W. 4, c. 42, respecting, 453, 467, 8, 716, 717 
 
 not allowed unless residence of omitted defendant given, 467 
 
 plaintiflf may reply discharge by bankruptcy and certificate, ib; 
 or relief under insolvent act, ib. 
 
 allowance of costs on pleas of, ib. 
 
 requisites of pleas of, 467, 8 
 
 commencement of declaration after plea of, 468, 742 
 
 non obstante veredicto, 656 
 NON OMITTAS CLAUSE, 730 
 NON PROS, 
 
 judgment of for not declaring, 727 
 NONSUIT, 
 
 when mistake in form of action a ground of, 198 
 
 in case of nonjoinder, 13, 542 
 NOT GUILTY, (see titles Ciwe. Debt. Trespass. Trover, Pleas in.) 
 
 plea of, what to put in issue, 518 to 521, 744 
 NOTICE, of suit, 427 notes. 
 
 when the plaintiflf or defendant must aver it, 328, 9 
 
 how to be alleged, 329 
 
 cqnsequences of omission, ib. 679, 681 
 NOVEL ASSIGNMENT, (see title New Assignment.) 
 NUISANCE. 
 
 who may sue for it, 65 
 
 who to be sued; 83 
 
 remedy for, when case or trespass, 133, 139, 140 
 
 ease, proper remedy for continuing, 139, 140 
 
 every continuance a fresh nuisance, 66 
 
 when request to remove, necessary before aetion, 89, 889 
 
 declaration for, 384, 388 
 
 action for injury in consequence of public nuisance, 389 
 
 effect of plea of not guilty in actions for, 744 
 ism, TIEL RECORD, (see title Debt, Pleas in.) 
 
 when a proper plea, 485 
 conclusion of, 557 
 
 Replication to a plea stating a record, 600 
 form bf it, ib. ' ^ 
 
 to a plea denying a record; ib. 
 IfUMBiK OF DEFENDANTS, 
 
 reg. gen. M. T. 3 W. 4, respecting, in writ, 249, 260, 729 
 
INDEX, -SIS 
 
 JSrUNC PRO TUNC, 
 
 entering judgment, 738 
 OFFICER, PUBLIC, (see titles Justices of 'the Peace. Sheriff. Venue, ^e.) 
 when liable to action of trespass, &c. 130, 131, 186 
 when superior military or naval officer, &c. cannot be sued, 78 
 of their pleading the general issue, 506, 715 
 OFFICERS, 
 
 remedy for disturbance of, 142 . 
 declaration for disturbance of, 382 
 
 assumpsit for money had and received lies against usurper of ofljce, who has ro- 
 ceivei fees 'when, 100 
 OMITTED DEFENDANT, 
 
 plea of nonjoinder of, 453, 467, 468, 716, 717 
 coramenoement of second action after plea of nonjoinder, 468, 742 
 ONE AND THE SAME Close, and answer thereto, 553, (see title Que sunt eadem.) 
 ONERARI NGN, 
 
 when proper in a plea, 552 
 ORDERS OP COUNCIL, 
 
 Courts ex officio do not take notice of, 214 
 ORDER OP COURT, 
 
 when assumpsit lies on, 101, 106 
 when debt lies on, 111 
 ORDER OF PLEADING, 
 
 what to be observed, and consequence of noo-observance, 440 
 ORIGINAL (see title Precipe.) 
 OUSTER, 
 
 what amounts to, in general, 191 
 
 in case of tenants in common, 179, 191 
 OUT-GOING TENANT, 
 
 when he must declare specially, 348 
 OUTLAWRY, 
 
 title of declaration where one defendant has been outlawed, 264 
 
 form of declaration in case of, 284 
 
 of plaintiflF, when to be pleaded, 448, 479 
 
 in abatement or bar, ib. 
 two outlawries cannot be pleaded, 227, 4^8 
 proceedings to, under 2 W. 4, c. 39, 706 
 OVER, pleading and objecting, 710,— Cr. & M. 226 ; 8 Dowl. 291 
 
 Reg. Gen. Hil. T. 4. "W. 4, respecting, 741 
 OVERSEER, 
 
 for time being, may sue on bastardy bond, 16 
 when jointly liable, 42, note (?) 
 OWNER OF SHIP, 
 
 when he may be sued, 33 
 
 when case lies against, though there has been a charter-party, 108, 136 
 when may sue in trespass, 169 
 OYER, 
 
 defined and explained, 430 
 form of craving it in a plea, ib. 427 
 when to be stated, 430 
 when to be craved. 431 
 
 of a deed necessarily stated, with a profert, 4S0 
 not of a deed unnecessarily stated, ib. 
 of a lost deed, ib. 
 notofthe writ, 431,450 
 
 not of a deed not pleaded with a profert, or of a mere record or written in- 
 strument, &:c. 431 
 
816 INDEX. 
 
 OYER — [continued. ) 
 
 when defect in craving of, wUl be aided, 431 
 
 when it should be craved, though not necessary, 430., 481 
 
 when proper, ib. 
 
 refusing oyer, 432 
 
 denial of oyer when error, ib. 
 
 how given, ib. 
 
 manner of taking advantage of, 433 
 
 when not judicious to set out the deed on, 432 to 434 
 
 how to plead after it, ib. 
 
 if defendant omit to set it out, plaintiff may for him, 433, 435 
 
 when plaintiff may pray an enrollment, 435 
 
 how to entitle the plea in ease of, 434 
 
 the whole of the deed to be sot forth and consequence of not doing so, 435 
 
 how much of another deed, ib. 
 
 when sufficient to crave oyer of, and state only condition of bond, ib 
 
 conesquences of the deed being stated, 435 
 
 form of plea after oyer, 436 
 PAPER BOOKS, 
 
 delivering of, to judges, 734 
 PABCENBRS, (see title Tenants in Common.) 
 
 when they ought to join as plaintiffs, 13 
 
 how to be sued, 42 
 
 avowries by, 566 
 
 death of one in real action abates it, not so in personal actions, 13 and note 
 (O. 65 
 PARDON, 
 
 Courts ex officio do not take notice of, 214 
 PARENT, 
 
 when he may sue for a tort to the person of his child, 61 
 
 when advisable to proceed in the name of the child, ib. 
 PARENTHESIS, 
 
 statement of inducement, 290 
 TARISH., (see tith Churchwardens. Hundred. Inhabitants. Overseers.) 
 
 need not be stated in laying venue, 274 
 PARLIAMENT, (see titles Statutes.) 
 
 what matters relating to, need not be stated in pleading, 215 
 PAROL DEMURRER, 447 
 
 abolished, 447, 490 
 PARSON, 
 
 may bring trespass for preaching in church without leave, 174 
 
 may support trespass, when, 177 
 PARTICULARS of DEMAND, 
 
 Reg. Gen. Trin. T. 1 W. 4, respecting, 727 
 PARTICULAR ESTATE (see the heads of " Title.") 
 PART PAYBIENT, 
 
 admission of, on face of declaration, 288, 338, 360 
 PARTIES TO ACTIONS, 
 
 importance of being correct as to, 1 
 
 general rule who should sue, ib. ^ 
 
 IN ACTIONS EX CONTRACTU, 2 tO 59 
 
 1. Plaintiff's, who may or should be, 2 to 38 
 
 between original parties, and with reference to the interest of the plaintiff, 2 
 
 to 8 
 legal or beneficial interest, former prevails, 2, &o, 
 in case of a bond, 3 
 upon a deed inter partes, ib 
 
INDKX. *^17 
 
 PABTIES TO ACTIONS, in actions ex contractu— (coMiJMMerf.) 
 I. Plaintiffs who may or should be — {continued.) 
 deed poll, 4 ' 
 upon a simple contract, 4, 49 
 in case of bills of exchange, 5 
 as between consignor and consignee of goods, 6, 7 
 agents and principals, 6 to 8 
 qualified right to use the name of a trustee, 8 
 
 2. with reference to the number of plaintiffs, 8 to 15 
 must join it joint interest, and instances, 8 
 
 aliter if interests several, &c. 10 
 agreement that one should sue, 11 
 as to a covenantee not executing, ib. 
 partners, &c. 12 
 tenants in common, &c. 12, 13 
 trustees, companies, and their clerks, &c. 14 
 misjoinder of several plaintiffs how to be objected to, 20, 23, 452 
 
 3. when the interest in the contract has been assigned, 15 to 19 
 
 in the case of personal contracts assignor must sue, 15, (see title Ghose in 
 
 Action.^ 
 unless upon express promise to assignee or new consideration, 15 
 or in case of certain bonds by statutes, 16 
 or in case of negotiable securities, &c. ib. 
 effect of transfer of debt where two debtors, &c. 16, 47 
 in case of covenant running with land, 16, 17, 18, 21, (see title Covenants.) 
 assignees of bankrupt or insolvent debtor, 15, 16 
 trustee under composition deed, 15 
 lunatic, 18 
 
 4. when one of the several partners, obligees, &c. is dead, 49 
 action must be in the name of survivor, ib. 
 
 when in the name of executor of deceased party, 9, 10, 19 
 6> in case of death of the covenantee, &c. 19 
 
 in case of a personal contract, executor of party having the legal title 
 
 must sue, ib. 
 • must be brought by executor, or administrator of surviving partner, &c 
 ib. 20 
 
 aU executors must join, ib. 
 
 non-joinder, how to be objected to, 20 
 
 what demands he may sue for as executor, 19, 20, 21, (see title Executor.) 
 
 m case of a covenant running with land, 16, 21 
 
 when by executor, heir, or devisee, ib. 
 
 in case of feme covert executrix, who to sue; ib. 
 
 infant executor, of suits by, 22 
 6. in case of bankruptcy, 22 to 26, (see title Assignee. Bankrupt. Bank- 
 ruptcy.') 
 ■. in case of an insolvent debtor, (see that title) 26 to 28 
 
 in case ot marriage, 28 to 33, (see title Baron and Feme.) 
 
 wife cannot sue alone, 28 
 
 when she may, ib. 
 
 when may join, ib. 
 
 when must join, 29 
 
 who to sue for personal chattels of wife, ib. 
 
 must join on contract made before marriage, 29 
 
 or when wife is executrix, &o. 29, 30 
 
 unless on express contract to husband on new consideration, 29, 80 
 
818 INDEX 
 
 PARTIES TO ACTIONS, in actions ex contracTi; — (oonfinued.) 
 
 I. Plaintiffs, who may or should be — t{continuefi.) 
 
 wife when she may join on contracts duri'ng marriage, SQ 
 for rent, &c. of her land, she may join, ib. 
 if husband survive, when he may sue, 31 
 if wife survive, when she may sue, 32 
 consequences of suing improperly, 33 
 
 II. Defendants, who to be, 
 
 1. between the original parties, and with reference to UahUity,, 37 t» 5,9 . 
 
 in general, 33 
 
 owner of a ship, &c. ib. 
 
 where contract can only be implied, 34 
 
 express promise to pay legacy, ib. 
 
 attorney or agent when liable, 83 to 38 
 
 trustee, when liable, 34 
 
 in case oi public agents, &c. 37 to 39 
 
 against partners, tenants in common, &c. and as to their suing each other, 
 39 to 41 
 
 lunatic, 41 
 % with reference to fiumher of defendants, and who must be joined, 41 to 47 
 
 of joint or several contracts, 42, 43 
 
 as to partners ; dormant partners ; one a bankrupt, or deceased, &c. ib. 
 
 of suing all parties separately, where it may be done, and how and when 
 advisable, 63 
 
 consequences of misjoinder, how cured, &C. 44, 46 
 
 non-joinder 46, 716, 17 
 
 3. in case of assignment of interest, change of credit, and covenants running 
 with the land, 47 to 50 
 
 4. where one of several obligors is dead, 50 
 
 5. in case of executors, administrators, heirs, and devisees, 51, 58 
 
 6. in case of bankrupty, 53 to 55, (see title Bankruptcy.) 
 
 7. in case of insolvency, 55 to 57, (see title Insolvent.) 
 
 8. in case of marriage, 57 to 59, (see title Bar^n and Feme.) 
 
 IN ACTIONS EX DELICTO, 
 
 1. Plaintiffs, who to be, 
 in general, 60 
 
 1. with reference to plaintiff's interest, 60 to M 
 mu§t be legal owner, ib. 
 for injuries to the person, 60, 61 
 
 personal property, 61, 2 
 
 real property, 62 to 64 
 
 2. with reference to the number of the pkintiflfe, 64 to 66 
 
 when they must or may join or sever, ib. 
 fbr injury to person, 64 
 
 to personal property, 65 " 
 
 to real property, ib. 
 consequence of too many or too few, 66 
 
 3. where the interest in the property has been assigned, ib. 
 
 4. when one of several parties is dead, 67 
 
 5. where a sole party injured is dead, 68 to 71 ■ 
 
 in general, 
 
 in case of injury to person, 68 
 
 to personal property, 68, 152 
 to real property, 69 
 
 by executors of deceased, when, 20, 70 
 6 in case of bankruptcy, 71, 2 
 
tN»EXi 819 
 
 ^ARTIES TO ACTIONS, in actions ex delicto— (c«>»«iMMerf.) 
 I. Plaintiffs, who .to be — (continwei.) 
 
 7. in case of insolvency, 72 
 
 8. in case of marriage, 72 to 75 
 n. Defendant, who to be, 
 
 1. who liable to be sued for torts, 76 
 
 executors, &e. of deceased, when, 20, 70 
 
 infants, &ei ib. 
 
 corporations when, ib. 
 
 inhabitants of a county, ib. 
 
 companies, commissioners, public trustees, 77 
 
 judicial and other public officers, 78 
 
 joint-tenants and tenants in common, 79 
 
 who are liable as principals, 79 to 82 
 
 against a partner, or a third person ooucluding with him, 9, 64^ 79 
 
 agents, attornies, &c. 83 to 85 
 
 for acts of animals, 82, 3 
 
 for injuries to real property, 83 
 
 2. with reference to the number of the parties, 85 to 89 
 
 consequences of mistake, ib. 
 
 3. where the interest in the land, &o. has been assigned, 89 
 
 4. in case of the death of the wrong-doer, 70, 89 to 91 
 
 5. in case of the bankruptcy of the wrong^doer, 9X 
 
 6. in case of his insolvency, 92 
 
 7. in case of mnrriage, 92, 3 
 
 statement of, in declaration, &c. 244 to 250, 256, 7, 280, 1 
 
 decisions on this point since 2 W. 4, c. S9, 251, 2 
 PARTNEES, (see titles Nonjoinder. Parties.) 
 
 must all sue in assumpsit, 11, 12 
 
 when they need not sue jointly, ib. 
 
 when they may sue each other, 39 to 41 
 
 how to sue iu case of bankruptcy, 23, 4 
 
 survivor to sue, 19 - 
 
 when survivor may include a demand in bis own right, 19, 202 
 
 when survivor need not state death of partner, 19, 50 
 
 must all be sued on a contract, when, 42, &c. 
 
 when one only should be sued, 43 
 
 when survivor to be sued, 50 
 
 not necessary to sue survivor as such, jb. 
 
 when they should join in a<ition for a tort, 64 
 
 against a partner, or a third person eplludiag with hina, 9, 64, 79 
 
 of joinder in actions by, &c. 201, (see title Joinder.) 
 
 covenant between, when of no avail against a creditor, 47, 48 
 
 when one discharged by act of other, ib. 
 
 what demand may be included or set off in action against a survivor, 50, 202 
 t>AKT OWNER, 
 
 cannot sue' alone, when, 9 
 PART PAYMENT, 
 
 statute 9 G, 4, c. 14, s, 1 and 3, respecting, 703 
 
 limitation of action, on debt on specialties after, 716 
 PART PERFORMANCE (see title Performance.) 
 
 admission of, on face of declaration, advisable, 288, 388, 860 
 i*ARTY WALLS, 
 
 assumpsit for contribution to, 101 
 PASTURE, COMMON of, 744 
 PATENT, 
 
 remedy for infringement of, l39 
 
820 INDEX. 
 
 PATENTEE of CROWN, 
 
 when covenant peculiarly lies against, 118 
 PAWNBROKER, 
 
 when he may sue for torts to property in his possession, 150 
 PAYER AND PAYEE, 
 
 prescribed forms of declarations by and against, 724 to 726 
 PAYMENT, 
 
 might formerly be given in evidence in assumpsit under general issue, 447, 743 
 
 must be pleaded specially, 507, 552, 743 
 
 must be pleaded in action on a specialty, and how, 482, 484, 487, 702, 743 
 
 of money into court in personal actions, 719 
 
 varied pleas of, not allowed, 740 
 
 form of plea of, 742 
 
 order of judge when not necessary, ib. 
 
 proceedings by plaintiff after, ib. 
 PAYMENT INTO COURT on SEVERAL COUNTS, 
 
 application of, 4 Tyr. 735 
 PEER, 
 
 plea in abatement by, 457 
 
 cannot plead misnomer, 450 
 
 declaration against, 449 
 PENAL ACTION and STATUTE (see title Statute.) 
 
 when executor liable on, 90 
 
 action on, when it may be against several, 86 
 
 when action lies, 112 
 
 who may sue on it, 21, 112 
 
 misjoinder of defendants, no objedtiotl when, 45 
 
 venue in actions on, 271, 276 
 
 declaration on, 371 to 375 
 
 no damage to be stated in, 418 
 
 amendment in, 198 
 
 pleas in, tendency of a prior action, 453 
 PENALTY, 
 
 when damages beyond it recoverable, 118 
 
 when assignee may sue for, 24 
 PENDENCY, 
 
 of another action, (see title Auter Action Pendent. ) 
 PERFORMAjNCE, (see title Condition Precedent.) 
 
 by plaintiff, of condition precedent, how he should state it, 320, 1 
 
 excuse of, how to be stated, 321, 326 
 
 consequence of omission of averment of, 237 
 
 replication to plea of, 585 to 587 
 
 pleasof, 487, 743 
 
 when general, suffices, unless specially demurred, to, 743, 9 Bing. 363 
 PER PRAUDUM, (see title Fraud.) 
 
 particulars of fraud, when need not be stated, 582 
 PER QUOD ACTIO ACCREVIT, 
 
 allegation of, in debt in general, 362 
 on statutes, 373 
 PERSONAL ACTIONS, 
 
 proceedings by original writ abolished, 270, 709 
 
 statute 2 W. 4, c. 39, respecting, 704, 709 
 PERSONAL PROPERTY, (see titles Goods. Possessions. Tretpass.) 
 
 declarations for injuries to, 376 to 380 
 
 pleas to injuries to, 501, 2 
 
 executors may sue for torts to deceased, 20, 70, 715 
 
INDEX. 821 
 
 PEW, 
 
 remedy for obstructing of, when case, and when trespass, 141, 14T 
 declaration for disturbance of, 381 
 PIRACY, (see titles Gopyright. Patent.) 
 PISCARY, (see title Fish and Fishery.) 
 PLACE, (see title Venue.) 
 
 what courts take judicial notice of, 218 
 when not material, (see title Venu^,) 360, 394' 
 part in one county, and part in another, 708 
 PLAmTIFPS. 
 
 who to be, (see title Parties. ) 
 
 may use the word "plaintiff" after having once mentioned name, 248, note (b), 
 256 
 PLEADING DOUBLE, 
 
 rule for, 563, 728 
 PLEADING OVER, what it aids, 671, 2 Crom & M'. 229, 671 
 
 Reg. Gen. Hil. T. W. 4, respedting, 741 
 PLEADINGS IN GENERAL, 710 
 
 parties to an action, who to be, &c. (see tiiXe Parties'.) 
 form of actions, &c. (see title Actions.) , 
 
 joinder in action, (see title Joinder.) 
 . election of actions, (see title Election of Action's. ) 
 of pleading in general, 213, 14 
 
 definition of, statement of facts and not argument or law, ib. 540 
 I. what facts necessary to be stated and what not, 2i4'to 232 
 1st, not facts of which courts will take notice, 214 ttt 220 
 matters relating to the king) 214, 15 
 proclamations, orders Of council, pardons, war, ice. iU 
 matters relating to the parliament and statutes, 215 
 ecclesiastical, civil, and marine law, foreign laws, &c. 216 
 common law rights and duties and geii'ei'^r custom's,' ib. 
 customs of gavelkind, &c. and local customs, 217 
 terms, calendar, days of Week, &c. 217', 18 
 
 division of England, Ireland, iricdrporated'tdwins, ports, Thames, 218 
 meaning of peculiar English words, ib. 219 
 course of proceedings in superior cdUrts, &c. 219 ' 
 privileges of their officers, 220 
 courts of general jurisdiction!,' ib. 
 inferior courts, ib. 
 2dly, where the law presumes a fact, it need riot'be stated, 221 
 Sdly, not to state matters to be stated by the other side, 222' to 225"' 
 4thly, not to state mere matter of evidence, 225, 540' 
 5thly, statement of legal fictions, 225 
 6thly, of duplicity, 226, 532 
 7thly, of unnecessary statements, 228 
 8thly, of superfluity and repugnancy, 229 to 232 
 n. the mode of stating the facts, 232 to 237 
 
 in general and vague statement objectionable, 232, 3 
 when no precise formal words necessary, ib. 
 precedents to be followed, ib. 
 pleadings to be in English, 233 
 of certainty in pleading, ilb. to 237 
 when general pleading allowed, 234, 235 
 what expressions will aid want of certainty, 335, 236' 
 other general rules," pleadings ' not to be' insensible, repugtanl, doubtM, 
 argumentative, &c. 236 
 Vol. I. 103 
 
822 INDEX. 
 
 PLEADINGS IN GmiERAL— (continued.) 
 
 to be according to legal effect, 305^ 312 
 in. rules of construction, 237 to 239 
 IV. division of pleading, 239 
 
 of the declaration, (see title Declaration, Sfc.) 240 to 421 
 of the claim of conusance, (see title Conusance,) 422 to 427 
 of appearance, defence, oyer, and imparlances, (see those titles) 427 to 439 
 of pleas to the jurisdiction, (see titles Jurisdiction,) 440, 452 
 of pleas, &c. in abatement, (see titles (Abatement,) 446 to 466 
 of pleas in bar, (see title Pleas in Bar,) 469 to 576 
 sham pleas, 541 to 545 
 issuable pleas, 510, 511 
 
 of replications and new assignments, (see titles New Assignment and Replica- 
 tions,) 577 to 650 
 bf rejoinder and subsequent pleadings, (see title Rejoinders, Sfc.) 651, 652 
 bf issues, (see title Issue,) 622 to 655 
 of repleaders, (see title Repleaders,) 655 to 657 
 of pleas jOMi's darrein continuance, (see that title,) 657 to 661 
 of demurrers and joinders, (see title Demurrer,) 661 
 of pleading between 10th August and 24th October, 730 
 PLEADING KULES, 723 to 747 
 
 consequence of deviation from, 287, 740 
 pleas in, before, (see title Fleas,) 475 to 479 
 pleas since, 479 to 520 
 power of judges to make, 714 
 PLEAS IN GENERAL, 
 
 order of pleading, and consequence of non observance of it, 440 
 to the jurisdiction of the court, (see title Jurisdiction,) 441 to 446 
 in abatement and proceedings thereon, (see title Abatement,) 446 to 466 
 in bar, 469 to 574 
 
 defined, and several descriptions of, 469 
 'criterion of, ib. 
 
 what facts can or not be pleaded in bar, ib. 
 must be matter of defence at law, not in equity, ib. 
 when not inatter of practice, ib. 
 analytical table of defences, 471 
 observations on such table, 472 
 
 former indiscriminate use of general plea, non-assumpsit, &c. ib. 
 of pleas of partial denial, 473 
 
 what matters of defence allowed to be pleaded specially, ib. 
 division of the subject of pleas in bar, 474, 475 . 
 
 I. Of the several pleas in bar in each action, and when must be special, 474 
 First, Before tbe recent rules relating to pleading, 475 to 512 
 in assumpsit, (see title Assumpsit,) 475 to 481 
 general observations respecting, 475, 476 
 non-assumpsit when formerly requisite or sufficient, 476 to 479 
 when to plead specially, 479 
 in debt, (see title Debt,) 481 to 486 
 
 1, on simple contract, 481 
 
 2, on specialties, 481 to 485 
 
 3, on records, 485, 486 
 
 4, on statutes, 486 
 
 in covenant, (see title Covenant,) 486 to 488 
 in account, (see title Account,) 488 
 in detinue, (see title Detinue,) 486 
 
 d It b !>!> 
 
INDEX. 823 
 
 PLEAS m GrUKERAL— (continued::) 
 
 I. Of the several pleas in bar, &o. — (continued.) 
 
 in actions by or against executors, &o., 489 
 
 against heir or devisee, 490 
 
 in case, (see title Case,) 490 to 498 
 
 in actions for slander in particular, 491 to 497 
 when and how to justify specially, 494 to 497 
 plea of recaption in case for an escape, 497 
 of pleading specially in case, 498 
 in trover, (see tide Trover,). 498, 9 
 in replevin, (see title Replevin,) 499 
 in trespass, (see title Trespass,') 500 
 the general rule, ib. 
 to persons, 501 
 to personal property, 502 
 to realty, 502 to 506 
 
 when the general issue authorized by statute, 506, 7 
 in ejectment, (see title Ejectment,) bdl 
 when advisable to plead specially, or only the general issue, ib. 
 when advisable not to plead specially, 508 
 matter of estoppel, when to be pleaded, 509 
 all defences should be pleaded, ib. 743 
 when sufficient to prove part of ground of defence, (510 
 of suffering judgment by default as to part, ib. 
 of issuable pleas, 510 to 512 
 Secondly, Since the recent rules, 512 
 
 statement of prescriptive rights in, under 2 & 3 W. 4, c. 71, s. 5, 512, 
 
 713 
 pleadings in particular actions by Eeg. Gen. Hil. T. 4 W. 4, 512 to 
 620, 738 to 745 
 I. In assumpsit, 513 
 
 non assumpsit, what to put in issue, 513 to 514, 748 
 n. In covenant and debt, 518 
 
 non est factum, what to put in issue, ib. 743 
 m. In detinue, ib. 
 
 non detinet, what to put in issue, ib. 743 
 
 IV. In case, 518, 19 
 
 not guilty, what to put in issue, 518, 744 
 instances in elucidation of this rul^ 519 
 matters in confession, and avoidance to be pleaded specially, 
 ih. 744 
 
 V. In trespass, 520 
 
 designation of closes by abuttals in, ib. 744 
 plea of not guilty, ib. 755 
 recovering pro tanio on proof of part of plea, ib. 
 n. Of the qualities of pleas in bar, 
 
 1, must be conformable to the count, &c. 22, 522 
 
 if not, when plaintiff may sign judgment, ib. 
 
 2, should answer the whole charges with.the exception of matter of aggrava? 
 tion, 523 
 
 3, must answer all assumed to be answered, and no more, 523 to 525 
 
 4, must deny or confess and avoid the facts pleaded to, and herein of giyiftg 
 color, and of pleas amounting to the general issue, 525 to 532 
 
 5, must be single, 535 
 
 6, must be certain, 533 to 539 
 
 7, must be direct and positive and not argumentative, 539 
 
8g4 iFfPiE^x. 
 
 PLEAS IN GEKERAL— {continued.) ' 
 
 II. Of the qualities ,c(f pleas in h!LX::—{AQTiM^V.ed. ) 
 
 8, must be cap3,ble of trial, 540 
 
 9, must be true, and not tcjo l{irge, and herein gf ,a|jaini pleas, 541 to 544 
 in. Rules of construction, 
 
 1, construction against the plea 'when aiBbiguo,iis, 445 
 
 2, if h^ in part considered b^d far the whcde, .546 
 
 3, when gurplusage or repugnancy vitiates, 547 
 
 IV. Of the forms and part^ of ple^s ,i» iiqr, 
 analytical table of the parts, 548' 
 general form ^ven, ib. 
 
 1, title of the couiit, 549 
 
 2, title or date of time, ib. 455 ' 
 
 when a special title proper, ib. 
 
 3, names of the parties iu mai;gin, 550 
 
 4, the commencement of the plea, ib. 
 
 name of the defendant, ib. 
 
 appearance in person or attorney, 550 to 552 
 
 defence, ib. 
 
 by what attorney, &c. 551 
 
 to a part of cause of action, 552 
 
 to several counts, &c. and as to the quts sunt eadem, 552 
 
 forms of, as prescribed by Keg. ,Uen. HU. T. 4 W. 4, reg. 9, 
 
 554, 741 
 actionem non unjaecegsary, ib. 741 
 no formal defence requisite, 555, ib. 
 by leave of the court, &c. not essential, ib. 
 
 5, the body of the plea, 555, 556 
 
 6, the conclusion, 55,6 
 
 when to conclude to the country, ib. 
 
 when with a verification, 557 
 
 when to the record, 558 
 
 prayer of judgment, ib. 
 
 defects in ^conclusion, when aided, 559 
 
 V. Oi several pleas in bar under statut? Ann, 560 to 565 
 
 in general, ib. 
 
 confined to courts of record, 560 
 
 what double pleas allpwe^ in court of record, 560 to 562 
 
 not allowed in inferior court, 228, 5f>0 
 
 pgph plea must be valid in itself, 562 to 568 
 
 form of, in general, ib. 
 
 one will not prejudice the other, 563 
 
 ruje to plead double, ib. 
 
 of several pleas since Ileg. (Jen. Hil. T. 4 W- 4, (see title Several 
 Fleas,) ih. 
 
 costs of, ib. 
 VT. Of pleas by several defen,d,ants, 565 to 568 
 
 when they m^y join or must seyer, 566 
 
 consequences of their, joining, ib. 
 
 form of plea by several, ib. 
 
 replication and demurrer, &c. ib. 
 defects, in pleas, when aided, and how, (see title Defects.) 568, 671 
 op PLEAS iij BAR IN njEPLEViN (sce titles Replevin. RepUcection.) 
 OF PLEAS PUIS DARREIN CONTINUANCE, and pending actions, (see title Piiis 
 
 Darrein, Sfc.) ' 
 
 OF p;,BA? OF SET-pFF, (s9e Me Set-vf,) 5jB8 to 57^ 
 
INDEX. S25 
 
 PLEDGES, 
 
 not necessary, 236, 420, 421, 731 
 PLENE ADMINISTRAVIT, (see title Executor.) 
 
 plea of, 489 
 
 replication to, 589 
 
 of taking judgment of assets, quando, &c. ib. 490 
 PLURIES WRITS, 
 
 may be directed into other counties, 729 
 POINTS OP ARGUMENTS, 
 
 statement of, in demurrer books, 7.34 
 in writ of error, ib. 
 POLICEMAN, 
 
 acquittal of, in action for tort, when entitled to costs, 88 
 POLICY OF INSURANCE, 
 
 assumpsit liejs on, 101 
 
 debt lies on, 110 
 
 covenant lies on, 116 
 
 alternative allegation allowed in declaration on, 237, 517, 743 
 
 Reg. Gen. Hil. T. 4 W. 4, respecting, ib. 742, 743 
 
 several counts on, when allowed, 739 
 POOR RATES, 
 
 replevin lies to try legality of, 164 
 
 if irregularity an distress for, party not a trespasser ah initio, 180 
 
 general avowery for, 499 
 
 general issue in |;respass, 602 
 
 de injuria to avowry for, 608 
 PORT DUTIES. 
 
 assumpsit lies for, 101 
 
 debt lies for, 109 
 PORTS, 
 
 extent of judicially taken notice of, when, 218 
 POSSESSION, 
 
 what sufficient to support action for tort, 61, 62, 123, 129 
 
 when essential to support trespass as to personalty, 168 to 170 
 
 as to real property, 175 tp 177 
 
 when and how to declare upon plaintiff's, 379 to 383 
 
 defendant' s, 383 
 
 plea of not guilty not put in issue, 520, 744 
 POUNDAGE, 
 
 assumpsit lies for, 101 
 POUND-BREACH, 
 
 remedy for, 138 
 POUND-KEEPER,^ 
 
 when not liable to be sued, 80, 181 
 PRACTICE, 
 
 when matter of not pleadable, 449 
 PRAECIPE AND ORIGINAL WRIT, 
 
 abolished in personal actions, 241, 709 
 PRuEDICTUS, 237, note (e) 
 PRiEMUNIRE, 
 
 plea of outlawry, if plaintiff under, 448 • 
 
 PRAYER oj JUDGMENT, 
 
 in a plea, general rule, 460, 558, 741 
 
 when not necessary in a plea, 559, 741 
 PRECEDENT CONDITION, (see title Condition FreQfdieni.) 
 PRECEDENTS in PLEADING, 
 
 why to be adhered t», 9§, ggg 
 
826 INDEX 
 
 PEECLUDI NON, 
 
 what part of replication so termed, 601 
 
 how to be framed, if to a part of plea, ib. 
 
 form of, now unnecessary, 741 
 PEEMATURE ACTION, (see title Auter Action Pendent.) 
 
 consequences, 453, 4 
 
 plea of, though not usual, 453 
 PREMIUMS OF INSURANCE, 
 
 who liable to be sued for, 36 
 
 count for, in action on policy of insurance, 739 
 PREROGATIVE, (see title Ring.) 
 PRESCRIPTION 
 
 how to be stated, 386 
 
 how to be pleaded since stat. 2 & 3 W. 4, c. 71, 512, 713 
 
 showing title by, when general allegation enough, and how proved, 379 to 383 
 713 
 
 variance in, 386 
 
 freeholder to prescribe, copyholder when not, 505, 6 
 
 who may join in, 567 
 
 statute 2 & 3 W. 4, c. 71, shortening time of, 712 to 714 
 PRESERVE, 
 
 frightening game from, 142 
 PRESUMPTION, 
 
 restriction of, by 2 & 3 W. 4, c. 71, s. 6, 714 
 PRINCIPAL AND AGENT, (see titles Agent. Master. Owner, ^c.) 
 
 when they may sue, 6 to 8 
 PRINCIPAL AND SURETY, (see titles Guarantee. Surety.) 
 PRINTED EVIDENCE, 
 
 amendment of variances in, 704 
 PRIOR ACTION, 
 
 judgment in, must be pleaded specially, 499 
 PRIORITY OF POSSESSION, 
 
 when sufl&eient to enable plaintiff to recover in ejectment, 479, note (i) 
 PRISONER, (see title Rescue.) 
 
 declaration against, in custody of sheriff, &c. 281, 713 
 
 pleas by, 733 
 PRIVILEGES, 
 
 enactment of 2 W. 4, c. 39, respecting, 708 
 
 remedy for arresting a privileged person, 183 
 
 of what the court will take notice, without pleading, 220 
 
 if improperly stated, will not be rejected as surplusage, ib. 
 
 of person, plea of (see title Abatement,) 443, 4 
 
 how plea concludes, 460 
 PRIVITY 01' ESTATE and CONTRACT, (see title Debt.) 
 
 nature of, 270, 271 
 
 when executor may sue on, 22 
 PROCEEDINGS in.ERROR, 
 
 delivery of, 735 
 PROCESS, (see titles Prcecipe. Writ.) 
 PROCHEIN AMI, (see titles Guardian, hfani.) 
 
 of declaring by, 284 
 
 ofpleadingby, 428, 449 
 PROCLAMATIONS. 
 
 courts ex officio take notice of, 214 
 PROPERT, (see title Oyer.) 
 
 the nature and form of it, 365, 366 
 
 when a profert or an excuse for omission necessary, ib. 
 
 when advisable to add several counts, when doubtful if it can be made, 410 
 
INDEX, 827 
 
 PROIERT, (see title Oyer.)— (^continued.) 
 
 at the end of declaration of letters testamentary, &c. 420 
 omission of, only ground of special demurrer, 366, 420 
 whether an unnecessary profert entitles the other party to oyer, 866, 430 
 variance in setting on, how taken advantage of, 483 
 PKOFITS A PENDKE, 
 
 claims to rights of, how limited, 713 
 PEOLIXITY, 
 
 when short pleading allowed to avoid it, 228, 304, 535 
 discountenanced, 304 
 PROMISE, 
 
 day of, when material, 257 
 by infant, confirmation of, 703 
 PROMISSORY NOTE, (see title MU of Exchange.) 
 assumpsit lies on, 101 
 when debt lies on, 103, 109, 113 
 variance in, 308, 9 
 
 plea of non assumpsit to, inadmissible, 515, 743 
 prescribed forms of declaration on, 723 to 726 
 PROOF OP DOCUMENTS, 
 
 Reg. Gen. Hil. ^. 4 W. 4, respecting, 736, 737 
 PROPERTY, 
 
 what sufficient in personal property to support tres|)ass, 168 to 170, (see title 
 
 Possession. ) 
 what sufficient in real property, (see title Possession,) 175 to 178 
 pleadable in abatement or bar in replevin, 446 
 PRO TANTO, 
 
 costs when plaintiff recovers in part, 393 
 when defendant may have a verdict for, 520, 614, 615 
 PROTESTANDO, 
 defined, &c. 616 
 nature and utility of it, ib. 
 replication protesting delivery of a pipe of wine in satisfaction, ib. 
 
 protesting a writ and warrant, &c. ib. 
 what matter might be protested, ib. 
 defect in, consequences of, 617 
 
 abolished by Reg. Gen. Hil. T. 4 W. 4, reg. 12, 669, 618, 741 
 PROUT PATET PER RECORDUM, 
 when necessary to be alleged, 371 
 omission of, how to be objected to, ib. 
 when to conclude with, 559 
 does not bind the exact description, 871 
 PROVISO, (see title Condition.) 
 
 in statute, when to be stated, &c. in pleading, 223, 372 
 in other instruments, 223 
 in contracts, 309 
 in specialties, 367 
 PROVISIONAL ASSIGNEE, 
 
 when not liable for fraud, 55, note (*') 
 PUBLIC INJURY, 
 
 where no action lies, 
 PUIS DARREIN CONTINUANCE, 
 plea of, when proper, 667, 8 
 pleas of, 
 
 in general, ib. to 661 
 how to plead matter arising pending suit and before issue, 667 
 
 after issue, ib. 
 what matters so pleadable, 667, 8 
 
828 INDEi. 
 
 PUIS DARREIN CONTINUANCE— (cow^mwea'.) 
 
 is not a departure, 650 
 
 are in abatement or in bar, 658 
 
 time of pleading them before Reg: Gen. Hil. T. 4 W. i, 659, 660, 738 
 in bank, ib. 
 
 at nisi prius, and wben, ib. 
 since the new rules, 659 
 
 requisites of, 658 
 
 forms of, ib. 
 
 how pleaded, and proceedings thereon, ib. 661, 738 
 
 when may be set aside, ib. 
 
 affidavit that matter arose within eight days, 660, 738 
 PURCHASER, (see titles (?oorfs AS'oZrf. Sale.) 
 
 of a freehold or a term, how to dfeclare on a lease, 363 
 QUARE CLAUSUM FREGIT, 
 
 statement of abuttals in trespass for, 279, 394, 520, 744 
 
 eflfect of plea of not guilty in trespass for, 744 
 QU^ SUNT EADEM, 
 
 of this allegation in conclusion of a plea, 555-^3 Tyr. 152' 
 
 in case of a united plea to several different trespasser, 554, 5 
 QUANTUM MERUIT COUNT, 
 
 virtually abolished, 288, 341, 2, 739 
 
 in debt, ib. 362 
 QUANTUM VALEBANT COUNT, 
 
 in assumpsit, Virtudly abolished, 288, 341, 2, 739 
 
 in debt, ib. 362 
 QUARE IMPEDIT, 
 
 executor may sue in, 69 
 QUARTER SESSIONS, 
 
 description of, in pleading, (see 3 Tyr. 158) 
 QUIT RENT, (see 5 Went. 152, 3) 
 QUI TAM, (see title Penal Statute.) 
 
 when necessary so to declare, 112, 372 
 QUOD RESPONDEAT OUSTER, 
 
 judgment of, 466 
 RATES, (see titles Poor .Safe. Port Duties, toll.) 
 
 when replevin lies to try legality of distress for, 164 
 READINESS, (see title Gondition.) 
 REAL PROPERTY, 
 
 when executor, &c. may sue for torts to, 20, 70, 715 
 
 case for injuries to, when proper, 139 to 143 
 
 trespass for injuries to, when proper, 139, 173 
 
 trover does not lie for, 146 
 
 detinue does not lie for, 121 
 
 what possession of, sufficient to support action for injury to, 62, 1*75 to 177 
 
 qumre i{ indebitatus count lies for, 341, note (a;) 
 
 declaration for injuries to, 379 to 383 
 
 how described, 376 
 REBUTTERS, 
 
 nature, &c. of, 655 
 RECEIVER, 62, 175 
 RECITING, 
 
 pleadings must not state facts by way of recital, 237 
 
 statement of contract by way of recital, not correct in declaration^ 302 
 
 injury in trespass must not be stated by way. of recital, 3S7 
 RECOGNIZANCUS'oF^BAIIi, 
 
 what the best remedy' on. 111 
 
 declaration on it, 370 
 
INDEX. . 82S 
 
 RECOGNIZANCES of BAIL— {continued.) 
 prout patet per recordum, 371 
 replication to a plea of no capias ad satisfaciendum, 588 
 to plea of set-off on, 583 
 EECOED, (see title Nul tiel Record.) 
 assumpsit does not lie on, 103 
 
 action on English and foreign judgKient, (see title Jtidgmepis.) 
 debt lies on, 111 • 
 
 when trover does not lie for conversion of it, 148 
 declaration on, (see title Debt, ) 870 
 venue in actions on, 276 
 pleas to, 485 
 replications to, 588 
 what matter of record is denied, 609 
 variance between, and written eyidence, 704, 719 
 KECOVEEY, EOKMEK, (see titles Former Eecowry. Judgments.) 
 RECTOE, 
 
 remedy against representatives of, for dilapidations, 91, 141 
 EEEEEENCB to DEED, (see title Pro/ert.) 
 
 statement of it, 368 
 REGISTER, 
 
 trover lies by owner of ship not registered, 151 
 EBJOINDEES, 
 defined, 651 
 
 governed by the same rules as pleas, ib. 
 must not depart from the plea, (see title Departure,) ib. 645 
 cannot obtain leave to rejoin double or several matters, 651 
 similiter, and form of, ib. 
 
 conclusion with verification, w^en necessary, &c. 662 
 conclusion to rejoinder denying several matters, ib. 
 RELATIVE EIGHTS, 
 
 remedy for injuries to, 134 
 declarations for injuries to, 379 
 RELEASE, , ' 
 
 lessor of plaintiff cannot release action, when 1'92, n. (*') 658, n. (p) 743 
 might formerly be given in evidence in assump.sit under the general issue, 478 
 but now must be pleaded, 515, 743 
 in case and trover, 491, 598 
 mast be pleaded in actions on specialty, 482, 485) 541, note (b) 
 in covenant, 487 
 on records, 486 
 in trespass, 491, 506 
 replications to plea of, in assumpsit, 582 
 in debt, 584 
 in trespass, 597 
 puis darrein continuance, plea of, (see title Puis Darrein, S^c.) 658 
 fraudulent release, when Court will relieve against, ib. note (p) 
 fraudulent release destroyed by accident, when bad, 541, note (J) 
 EEMAINDEBrMAN, 
 
 within 32 Hen; 8, c. 34, 117 
 
 action by, against tenant for life taking away trees, &c. 149 
 may sue, when, 16, 62, 68, 148, 149, 175 
 trespass by, 175 
 
 declaration by reversioner, and when bad after verdict, 682 
 EEMITTITUE, 
 
 when plaintiff may enter, in debt, 114 
 when entering may avoid misjoiffldisr, 206 
 when to be entered as to damages, 371, 339 
 Vol. 1. 104 
 
830 INDEX. 
 
 RENT, (see titles Distress. Landlord and Tenant.') 
 
 recoverable by whom, 16 to 20 
 
 executor of tenant for life may sue for, when, 102 
 against whom, 49 
 
 of suing executor for, 204, 205, 367, 368 
 
 how recoverable in assumpsit, (see title Use and Occupation,) 105 
 
 bond for, no extinguishment, and plaiptiff may sue in assumpsit, ib. 
 
 tortiously received, assumpsit lies for, 100 • 
 
 how recoverable in debt, 49, 109, 112 
 when not, 49, 113 
 
 debt peculiar remedy, where an eviction from part of premises, 112 
 
 how recoverable in covenant, 49, 116, 117, 118 
 when not, 49, 118 
 
 declaration /or, by or against assignee, &c.' of lessor or lessee, 363, 368, 369 
 
 when advisable to sue in debt for, 209 
 
 when advisable not to distrain, 145 
 
 when advisable to distrain for rent-charge, 209 
 
 avowry or cognizance for, 500 
 
 pleas in bar to, 591, 613 
 
 pleas to debt for, 482 
 
 pleas of distress for, in trespass, 502, 565 
 KENT CHARGE, 
 
 -debt lies for, 110, 119 
 
 covenant does not lie against assignee of grantor of, 119 
 
 when advisable to distrain for, 209 
 EEPETITION, 
 
 of time still essential, 266 
 HEPLEADEE, 
 
 when awarded in case of an immaterial issue, 655 
 
 when granted before trial, ib. 
 
 denial of it7 when error, 656 
 
 judgment and proceeding de novo, ib. 
 
 no costs are payable by either party, ib. 
 
 not after a default at bisi prius, ib. 
 
 when not after demurrer, &c. ib. 
 
 distinction between it and judgment non obstante verdicto, ib. 
 REPLEVIN, ACTION OP, 
 
 parties to action on replevin bond, 9, 16 
 
 when the action lies in general, and defined, 162 
 
 the nature of the action, ib. 
 
 1. for what property in lies, 163 
 
 2. the plaintiff's interest, 163, 164 
 
 3. the injury, 164 ' 
 
 the pleadings, judgment and costs in, in general, 165 
 declaration, 
 
 title of court and term, 262 to 267 
 venue in, (see title Venue,) 268 
 commencement, 280 
 statement of the property, 377 
 
 plaintiff's property therein, 378 to 385 
 in case of liusband and wife, 74 
 the injury, 388 
 damages, &c. 395 
 conclusion, 10, 418, 419 
 pledges now to be omitted, 420 
 pleas, avowries, and cognizances in, 
 
 Reg. Gen. Hil. T. 4 W. 4, respecting, 740 
 
INDEX. 831 
 
 REPLEVIN, ACTION Q-^— {continued.) 
 
 plea in abatement or bar of property, &c. 446 
 non cepit, when proper, 499 
 
 evidence under it, ib. 
 cepit in alio loco, ib. 
 not guilty, when allowed, 500 
 avowries, &c. for rent, &c. ib. 
 
 by tenants in common, joint tenants, fro. 12, 64, 500 
 words of avowry instead of cognizance not material, 530 
 pleas in bar to avowries and cognizances, &c. 
 
 may plead in bar several pleas, 591, 649 
 de injuria improper, 606, note (e), note (y) 
 no new assignment permitted, 637 
 to a plea of cepit in alio loco, 591 
 denial of defendant's being bailiff, ib. 
 to an avowry for rent, ib. ^' 
 
 denial of the tenancy, ib. 
 payment of ground rent, &o. ib. 
 eviction, ib. 
 
 nil hahuit a bad plea, ib. 
 rien in arrere, ib. 
 tender, ib. 
 to an avowry damage feasant, ib. 
 denial of defendant's title, ib. 
 a demise from defendant, ib. 
 right of common, ib. 
 right of way, 592 
 defect of fences, ib. 
 abuse of distress, ib. 
 REPLEVIN BOND, 
 debt lies on, 110 
 case for not taking replevin bond, 138 
 
 taking insufficient pledges, ib. 
 declaration for, 385 
 stating breach of condition in, 369 
 assignee of, may sue, 16 
 who may join as parties to actions on, 9, 16 
 REPLICATIONS, 
 
 to pleas to ih^ jurisdiction, (see title Jurisdiction, Pleas to.) 
 to pleas in abatement, (see title Abatement, Pleas in.) 
 to particular pleas in abatement, 
 to plea of coverture, 449 
 to a plea to the count, of variance, 450 
 
 if oyer craved, plaintiff may sign judgment, ib. 
 or apply to court to^ set it aside, ib. 
 to a plea to the writ, ib. 
 to a plea of variance or misaddition, 451 
 when plaintiff may sign judgment, ib. 
 
 apply to court to set it aside, ib. • 
 
 to a plea of another action pending, 454 
 
 cannot discontinue first to support the second, ib. 
 to a plea improperlyentitled, &c. 
 may sign judgment, 456 
 may apply to court to set it aside, ib. 
 may demur, ib. 
 
 or allege the imparlance a.% estoppel, ib. 
 how objection wai-^d, ib. , 
 
 to a plea of misnomer, 463 
 
838 iirtiEX. 
 
 REPLICATIONS— (coraftwMerf.) 
 
 to a plea of nonjoinder, 464, 467 
 in general, 
 
 form and requisites of, ib. 
 to pleas in lar, 
 
 general observations, 577 
 election of several, when, 578 
 in denial as de injuria, when admissible, 579 
 analytical view of, 580 
 1, of the different replications, 581 to 598 
 in assumpsit, 581 to 584 
 
 to a plea of iofancy, 581 
 coverture, ib. 
 alien enemy, ib. 
 insolvent debtor's act, &c. ib. 
 illegality in the contract, &e. ib. 
 tender, ib. 
 
 accord and satisfaction, 582 
 arbitrament, ib. 
 '' judgment recovered, &c. ib. 
 
 release, ib. 
 set-off, ib. 
 
 court of conscience act, 583 
 statute of limitations, ib. 
 in debt, 584 to 589 
 
 on simple contract, 584 
 • on specialty, ib. 
 of replications and suggestions, &c. under 8 & 9 W. 3, 
 
 c. 11, 584 to 588 
 prescribed form of, to a plea of stat. lim. by 3 & 4 W. 
 
 4, c. 42, s. 5, 588, 716 
 on records, 588 
 on statutes, ib. 
 in covenant, 589 
 
 in actions against executors and administrators, ib. 
 in actions against an heir, &c. 590 
 in actions on the case, ib. 
 in general, ib. 
 
 when de injuria sufficient, ib. 
 in replevin, 
 
 de injuria improper, 591, 606 
 to a plea of cepit in alio loco, 591 
 denial of defendant's being bailiff, ib. 
 to an avowry for rent, 
 denial of tenancy, ib. 
 payment of ground-rent, S^q. ib. 
 eviction, ib. 
 
 nil habuit a bad plea, ib. 
 rien in arrere., ib. 
 tender, ib. 
 to an avowry damage feasant, 591 
 denial of defendant's title, ib. 
 a demise from defendant, ib. 
 right of common, ib. 
 right of way, 592 
 defect of fences, ib. 
 
 traverse of distress while damage feasant, ib. 
 abuse of dl«tres«, 592 
 
INDEX. 888 
 
 REPLICATIONS — ^I. Oi ^e different replications — (continued.) 
 in trespass, 
 to persons, 
 
 when de injuria sufficient, 592 
 
 when plaintiff must reply specially, 692, 593 
 
 where he must new assign, 593, 631, 635 
 
 where he can only take issue or part of plea, 593 
 
 to personal property, 594 , 
 
 when de injuria sufficient, ib. 
 
 when not, ib. 
 
 when the replication should be special, ib. 
 
 when the plaintiiF can only take issue on p^t of the plea, ib. 
 to real property, 
 
 to a plea of liberum tenenentum, 
 
 1. when general denial sufficient, 595 
 
 2. title derived from defendant, ib. 
 
 3. title derived from a prior owner, ib. 
 
 4. new assignment of abuttals, &c. ib. 
 
 when plaintiff may deny defendant's authority as servant, ib. 
 to a plea of license, 596 
 
 defect of fences, ib. 
 right of common, ib. 
 right of way, 597 
 to a plea of any matter in discharge, ib. 
 in nature of new assignments, 635 
 to new assignments, 641 « 
 XL Of the /brms of replications and particular parts, ' 
 
 title of the court and time of pleading since Keg. Gen. HU. T. 4 W. 4 598, 
 738 
 imparlance and suggestion when formerly proper, ib. 
 to a plea concluding to the country, 599 
 of the similiter in general, ib. 
 to a plea of nul tiel record, or stating a record, 600 
 
 to a special plea concluding with a verification, 601 ' 
 
 the commencement of the replication, ib. 
 matter of estoppel, ib. 602, 604 
 of the precludi non, ib. 602, 741 
 
 form where the replication only answers part of the plea, ib. 
 form where it answers separately different parts, 602 
 form where the replication answers several pleas, ib. 
 the body of the replication, 
 
 no venue to be stated, 602, 741 
 a statement of matter of estoppel, 603, 604 
 
 when the ground of demurrer, ib. 
 denial of the plea, 604 
 
 of the whole plea, de injuria, 605 
 when allowed, &c. 605 to 610 
 
 the form of it, 610 
 denial of only part of the plea, 611 to 622 
 on what fact, 611 to 616 
 ■ the mode of special denial, 616 to 622 
 a denial and stating a breach, 622 
 confession and avoidance, 622 to 624 
 instances of, ib. 
 
 form and requisites of these replications, 623 
 new assignment, (see title JHfew Assignment,) 624 
 the conclusion of the replication, 
 
834 INDEX. 
 
 EEPLIC ATIONS— (coreimMPc?. ) 
 
 n. Of the forms of replications and particular parts — {coniimied.) 
 in particular instances, 599 to 602, 641 
 when it should be to the country, 641 
 of a replication concluding with a traverse, ib. 
 when a particular fact is denied, 544 
 when with a verification, ib. 
 when it must be of new matter as stated, ib. 
 when it need not, ib. 
 estoppel, ib. 
 
 prayer of judgment, ib. 643 
 consequences of mistake, 643 
 signature of counsel, ib. 
 . The qualities of replications, 
 in many respects similar to those of a plea,- 543 
 
 1, must answer so much of plea, as it professses to answer, ib. 
 
 2, must not depart from the declaration, (see title Departure,) 644 
 
 instances of departure, ib. to 648 
 how to be objected to, 648 
 
 3, must contain matter of estoppel, or traverse, or confess and avoid, 
 ^648 
 
 4, must be certain, &o. ib 
 
 5, must be single, 649 
 
 duplicity defined, ib. 
 why objected to, ifa, 
 cannot obtain leave t« reply double, ib. 
 when it ijiay put in issue several facts, 650 
 may reply one matter as to part, and another as to residue, ib. 
 when may state several breaches under statute, ib. 
 replication to a plea of set oflf, ib. 
 must be objected to by special demurrer, ib 
 REPUGNANCY, 
 
 what, and how far objectionable, 229 to 232 
 REPUTATION, (see title Slander.) 
 remedy for injuries to, 184 
 declaration for libel or slander, 393 
 BEQUEST, 
 
 when will be implied, 850, 351 
 
 when plaintiff's request to be averred in declaration, 880 
 form of allegations, and difference between general and special request, ib. 331 
 consequence of mistake, ib. 679 
 
 when defendants request necessary to be stated in common counts, 341 
 in count for goods sold, 345 
 money lent, 349 
 money paid, 350 
 to remove a nuisance, when to be stated, 83, 389 
 demand to create a conversion in trover (see title Trover,) 156 
 RESCUE, 
 
 remedy for, 138 
 plea justifying battery for, 538 
 RESIDENCE, 
 
 affidavit of, to plea of nonjoinder, 467, 716 
 RESPONDEAT OUSTER, 
 
 judgment of, on plea in abatement, 464 to 468 
 RESPONDEAT SUPERIOR, 34, 79, 83, 84 
 RETAINER by an EXECUTOR Csee title Executor.) 
 when to be pleaded, 489 
 
IKDEX. 885 
 
 EETUEN, 
 
 to wit, clel)t lies on, 112 
 REVERSION (see titles Assignee. Title.) 
 
 property in, remedies for injuries to, 63, 134, 139, 179 
 when revisioner may sue, 63, 116, 179 
 action of trespass or ejectment for, 116, 179, 190 
 
 declaration for to personal property,. 380 
 to real property, 381, 392 
 RIENS EN AERERE, 
 
 plea of, in debt, 482 
 
 in covenant, a bad plea, 487 
 
 plea in bar of, in replevin, 591 
 RIEN PER DESCENT or DEVISE, 
 
 plea of, 490 
 
 replication to it, 590 
 RIGHT (see Title.) 
 
 of way, plea of not guilty to, how to operate, 744 
 RIOT ACT. 
 
 remedy upon, 143, 7 & 8 Geo. 4, c. 31 
 RULE oE COURT (see title Order.) 
 SAID, 
 
 when it does not refer to last antecedent, 239 
 SAILOR, 
 
 when he may sue for share of profits of a voyage, 40 
 SALE (see titles Goods Sold. Vendor and Purchaser.) 
 
 what a variance in statement of a contract of, 308 to 817 
 SCIENTER, 
 
 when material to be stated and proved, 82, 133, 137, 388 
 
 when not, 137 
 
 consequence of omission, 388 
 SCILICET (see title Videlicet.) 
 
 the efifect of it, 317, 318 
 SCIRE FACIAS, 
 
 when to be brought on a judgment or recognizance, 111 
 
 conclusion of declaration in, 420 
 
 when affidavit of truth of pleas in, necessary, 462 
 
 venue in, 269 
 
 pleas to, 485—1 Price, 23 
 SCOTLAND, 
 
 law of, not ex officio noticed here, 216, note (o) 
 SEAS, 
 
 stat. lim. when party beyond, 716 
 SECOND PLEA, 
 
 how to commence, 741 
 SECOND COUNT (see title Several Counts.) 
 SECTA (see title Suit.) 
 SECURITY, COLLATERAL, (see titles Guarantee. Surety.) 
 
 when no bar to an action, 48, 105 
 SEDUCTION. 
 
 form of action for, 134 
 SEPARATE MAINTENANCE, 
 
 form of action in case of non-payment of, 104, 116 
 
 cannot be replied to a plea of coverture, 581 
 SERVANTS (sec titles Agent. Master arid Servant. Parties.) 
 
 when he cannot sue on a contract, 7 
 
 when he may sue for a tort, 61, 62, 122 
 
 whea be is liable to be sued on a contract, 34 to 39 
 for a tort, 81, 84, 85 
 
836 INDEX. 
 
 SERYKNTS— (continued.) 
 
 remedy for debauching of, or beating or enticing away, 21, 126 
 
 traverse of defendant being, 591, 595 
 SERVICE OP WRITS Defective, 450 note 
 SERVICEABLE PROCESS, 
 
 comencement of actions by, 704, &c. 
 SET-OFF AND MUTUAL CREDIT, 
 
 in general, 569 
 
 wbat deductions allowed at common law, ib. 
 
 what agreement authorizes a deduction at common law, available under general 
 issue, 570 
 
 statute 2 Geo. 2, c. 22, s. 13, authorizing set-off, ib. 
 
 statute 8 Geo. 2, c. 24, s. 4, extending to debts by specialty, ib. 
 
 setting off not compulsory on defendant, and he may waive it, 571 
 
 exception, ib. 
 
 when advisable not to set off, ib. 
 
 nature of debts to be set off, and in what actions allowed, ib. 
 
 cannot set off attorney's bill until delivered, 1 Anst. 198 
 
 1, must be mutual debts, and due in the same charaeter, and from and to 
 same parties, ib. 
 
 2, must be mutual debts, not damages, &c. ib. 
 
 3, the debt must be a legal and not an equitable demand, and subsisting, 
 
 572 
 not a debt barred by statute of limitations, ib. 
 attorney's bill may, though not delivered a month, ib. 
 pendency of error, &c. ib. 
 set-off, &c. in cases of bankruptcy, 573 
 modes of setting off, 
 
 must be pleaded, &c. 573 
 in case of penalties, ib. 
 by notice of set-off with general issue, 574 
 when a plea or notice is preferable, ib. 
 in case of bankruptcy, ib. 
 
 form and requisites of a plea, or notice of set-off, 574, 575 
 if part plea bad, plaintiff must not demur to the whole plea, 575 
 replication, &c. 
 
 what may be replied to a plea of set-off, 575, 579, 582, 583 
 statute of limitations to be specially replied, 575 
 in debt, 584 
 
 where part of plea is matter of record, 582, 583 
 
 conduct plaintiff should pursue on trial, if plaintiff does not prove set-off, 
 575 
 set-off of cross demands for costs on judgments, &c. ib. 
 how set-off may be avoided by declaring in tort or specially, 144, 210, 289 
 when not, 295, note (/) 
 SEVERAL BREACHES, 
 
 now allowed under reg. gen. H. T. 4 W. 4, 227, 243, 739 
 SEVERAL COUNTS, 408, (see titles Counts. Declaration.) 
 use of, on same transaction prohibited, 107, 243, 288, 399, 739 
 costs of several issues how allowed, 412, 413, 416, 740 
 form of subsequent counts, 413 
 
 pleading to several counts for same cause of action, 414 
 reg. gen. Hil. T. 4 W. 4, reg. 5, 6, 7, prohibiting, ib. 739, 740 
 instances in declaration, 414 to 416, 739 
 
 in pleas, 415, 416, 740 
 departure from rules how taken advantage of, 416, 470 
 cost of counts and pleas, 412, 416, 740 
 rale how construed, 416, 417, 740 
 
INDEX. 83T 
 
 SEVERAL CONTRACTS, 43 
 
 SEVERAL DEPENDANTS, (see titles Parties. Pleas.) 
 SEVERAL PLEAS, (see title Pleas, 560 to 568 
 in general, 560 to 563 
 
 1, under stat. 4 & 5 Anne, c. 16, ib. 701 
 confined to Courts of Record, 560 
 
 what double pleas allowed in, 560 to 562 
 
 not allowed in inferior Courts, 560 
 
 if pleaded plaintiff may demur, ib. 
 
 or treat same as a nullity, ib. 
 
 each plea must be valid in itself, 562, 563 
 
 each ground of defence substantially different, 562 
 
 form of pleading a subsequent plea before Reg. G«n. Hil. T. 4 W. 4, ib. 
 
 of the rule to plead double, 568 
 
 2, since Reg. Gen. H. T. 4 W. 4, ib. 741 
 
 when inconsistent pleas may be pleaded, 564, 740, 741 
 instances where several pleas allowed, 564, 565, 740, 741 
 
 of pleas by several defendants, 565 to 568 
 
 SEWERS' R^TE, 
 
 replevin lies to try legality of, 161 
 avowry, &e. for, 499 
 
 general issue in trespass sufficient if defendant justify seizing for, 502 
 liability of contractor with commissions for torts, 77, 84 
 trespass by commissioners of seT\ers, 176 
 SHAM PLEAS, 
 in general, 541 
 
 what are so considered, so that plaintiff may sign judgment, 641 to 545' 
 what may be pleaded, 543 
 consequence of plea appearing to be false, 541 
 by executor, 544 
 
 plaintiff may amend without costs, &c. 544 
 attorney liable to pay costs of, 541, n (z) ; 1 Chitty Rep. 182 
 SHARES, 
 
 assumpsit to recover back money paid on them, 354 
 SHERIFE AND OFFICER, (see also title Escape.) 
 
 when sheriff liable for acts of Officer, 82, 84, 171, 185, 197 
 
 high sheriff in general to be sued, 82 
 
 executor of, when liable, 90 
 
 remedy against, form of, 134 
 
 when trover lies against, 82, 151, 154 
 
 when trespass does not lie against, 130, 171, 183 
 
 when trespass lies against, for abuse of process, 171, 185 
 
 case against, for not arresting, 138 
 
 . for false return, &c. ib. 
 remedy against, for not paying year's rent under execution, 143 
 
 declaration for, 389 
 how to be sued by assignees of bankrupt, for levying after, acts of bankruptcy, 130 
 when action does not lie against, for money, had and received, under a disputed 
 
 execution, 353 
 sheriff may sue stranger in trespass for injury to goods in his possession, 170 
 when they should not join in plea with another, 567 
 sheriff's vendee when not liable,-l7l 
 writ of inquiry before, 717, 718 
 SHIP, (see also titles Owner of. Oaptain. ) 
 captain of, when he may sue, 7, 61, 151 
 or be sued, 35, 84 
 
 sailor, when he may sue for proportion of earnings, 40 
 remedy for negligently navigating of, 128, 172 • 
 
 Vol. i. 105 
 
838 rsDfix. 
 
 SHIP — (continued. ) 
 
 case for, ib. see 11 Price, 608 
 who against, 41, 84 
 SIGNATURE, 
 
 under statute against frauds, need not be averred in deokration, 222, 303 
 aliter in plea, 303, 534, 566 
 SIGNATURE OF COUNSEL, 
 
 when necessary to pleadings, 648 
 Similiter, (see also title RepUcatim.) 
 when proper to a plea, 578, 599 
 form of it in a replication, and consequence of mistake, 600 
 
 in a rejoinder, 651 
 when plaintiff may add it, 652 
 SIMPLE CONTRACT, (see titles ^s«Mmp«<. Delt.)^ 
 
 debt on, against an executor or administrator when, 97, 110, 113 
 SLANDER, (see also titles Case. Innuendo.) 
 who may join in action for, 64 
 when husband and wife should join for, 73 
 remedy against whom, 
 
 for written slander. lies against two, 86 
 for verbal only against one, ib. 
 against husband and wife, 92 
 what a publication, Toogood v. Spyring, 4 Tyr. 582 
 form of action for, case, 181, 183 
 declaration in, in general, 369 
 
 1, inducement of plaintiff's character and innocence, and of introductory 
 matter, 400 to 408 
 
 inducement of trade, &c. when necessary, ib. 
 
 2, colloquium of plaintiff's ti-ade, &o. 408, 404 
 
 3, statement of the libel or words, and publication thereof, 404 to 408 
 
 4, the innuendoes, 406 to 408 
 
 5, the damages, 395 to 399, 408 
 
 how to state, ib. 
 how words to be construed, &c. 219 
 pleas in, before the new rules, 
 
 1, general issue, when sufficient and proper, 491 to 494, 744 
 2j when to plead specially, 494 to 497 
 form of plea justifying, ib. 
 statute of limitations, 498 
 replication in what sufficient, 590, 606 
 new assignment in, when proper, 636 
 SOLVIT AD OR POST DIEM, 
 when proper, 484, 485, 740 
 replications to, 584 
 SON ASSAULT DEMESNE, 
 must be pleaded specially, 501 
 
 when not advisable to plead it on account of costs, &e. 508, 509 
 replication to a plea of, when de injuria prope?, 592, 593, 627, 632, 636 
 
 when not, ib. 627 
 jiew assignment, when proper or not, ib. 
 SPECIAL CASE. 
 
 may be stated without proceeding to trial, 720, 734 
 SPECIAL COUNTS, (see the respective actions.) 
 
 as to declaring specially in general, 285, 339 
 SPECIAL DAMAGE, (see title Damage.) 
 SPECIAL JURIES, 
 
 costs of, 721 
 SPBCIAIi ORIGINAL, (see title Prmcipe.) 
 
INDEX. 839 
 
 SPECIAL PLEAS, (see title Pleas, and the respective actions.) 
 
 as to pleading in general, 501 
 SPECIALTIES, (see titles Debt. Deed. ) 
 
 assumpsit upon, or in respect of, 103, 104 
 
 debt on, 110 
 
 covenant on, 115, 118 
 SPECIAL VENUE (see title Venue,) 711 
 
 limitations of actions on, 351, 354 
 STAKEHOLDER, 
 
 when liable to be sued, 86, 87 
 
 money had and received against, 351, 354 
 STALLAGE, assumpsit for, 101 
 STAMP, 
 
 trover lies for unstamped agreement, 147 
 
 when plaintiff may resort to common counts, where instrument not stamped, 340 
 and note (k) 
 
 advantage of declaring specially in relation to, 289 
 STATUTE AGAINST FRAUDS, (see title Frauds, Statutes against.) 
 
 must be pleaded specially, 480, 528. 748 
 STATUTE OP LIMITATIONS, (see title Limitations, Statute of.) 
 STATUTE MERCHANT, 
 
 debt lies on, 111 
 STATUTE STAPLE, 
 
 debt does not lie on. 111 
 
 lies on recognizance in nature of, ib. 
 STATUTE OP USES, 
 
 how to plead deeds operating under it, 365 
 
 no profert necessary, ib. 
 
 consideration of, to be stated, 866 
 STATUTE, (see title Penal Statutes.) 
 
 when they allow action at common law or on statute, 96 note 
 
 assumpsit lies on, when, 106 
 
 debt upon. 111 
 
 case, 148 
 
 when action lies on penal statute, and parties, to, 111, 143 
 
 declaration on penal statute, (see title Penal Statute,) 371 to 374 
 
 venue in actions on, 271 
 
 how to described passing of, 215 
 
 of what matters relating to, courts ex O'ffveio take notice, 214, 215 
 
 when recently made, when necessary to state fact took place after, ib. 
 
 variance in setting out, how taken advantage of, 216 
 
 excepting proviso or clause, how and when to be pleaded, 223, 309, 334 
 
 public, ought not to be set forth, but only referred to, 215, 316 
 
 pleas to debt on, 486 
 
 replication to such pleas, 588 
 
 recital in public act, evidence of fact recited, 215, note (») 
 STRIKING OUT, vol. ii. 440 
 SUB-AGENT, 
 
 when liable in trover, 156 
 SUBMISSION TO ARBITRATION, 722 
 ' SUBSCRIBERS, - 
 
 liability of, 38 
 SUBSTITUTED CREDIT, 
 
 when it merges original liability, 48 
 SUGGESTION. 
 
 in lieu of imparlances, 438, 439, 738 
 
 in a replication of death, &c. 
 
 of breaches in debt on bond in declaration, &e, 584 to 58S 
 
 ths lik« in replication, ib. 
 
840 INDEX. 
 
 SUIT, 
 
 at the end of declaration, nature of, 420 
 SUMMONS, WEIT OF, 
 
 introduction qf, by 2 W. 4, e, 39, s. 94-, 704, 709 
 
 commencement of declaration on, 242, 285, 730 
 
 against member of parliament, 448, 712 
 a peer, ib. 
 SUPEKFLUOUS COUNTS, 
 
 when struck out, 408, 412 
 SURETY, (see title Guarantee.) 
 
 action against, on his collateral undertaking, 108, 113 
 
 declaration against, ib. 821, 330 
 
 may sue his co-surety for contribution, 39 
 
 executors of, when not liable, 50, 51, 715 
 
 in case of death of, when equity will not relieve, ib. 
 
 not discharged by collateral security from principal, 104, 5 
 
 though judgment obtained thereon, ib. 
 SUKGEON, 
 
 assumpsit against, 102 
 
 case against, when form of action, 134, &c. 
 
 declaration for negligence, 384 
 SUEPLUSAGE, 
 
 what is, 228 to 232 
 
 consequence of it, not demurrable, when, 228 to 280 
 
 in an inducement, when not material, 292, 400, 401 
 
 still is possessed, may be rejected, 382 
 
 in stating consideration, 300 
 
 in an innuendo, 406, 408 
 
 in stating slander, 405 
 
 in stating plaintiff 's title, &o. in tort, 228, 385 
 
 in stating tort, 391, 893 
 
 in a plea, when it prejudices or not, 457, 8 
 
 in a replication in abatement, what rejected as, 465 
 SUE-KEBUTTER," 
 
 nature and requisites of, 651 
 SUKrREJOmDER, 
 
 nature and requisites of, 652 
 SUBVEYOR OF HIGHWAYS, &c. 
 
 not liable for work, 38 
 SURVIVOR, (see title Parties. Partner.) 
 
 when to sue, 19, 67 
 
 what demands he may join, 19, 67, 201, 202 
 
 when to be sued, 50, 86 
 
 what demands may be joined, ib. 201, 2 
 SURVIVORSHIP of action, 19, 68, 69, 89 
 TALITER PROCESSUM EST, 1 Saund. 92, note 2 
 TENANT FOR LIFE, 
 
 bill in equity for waste against personal representative, 70 
 TENANT, (&&& aha HiA&s Landlord and Te.nant. Use and Occupation. Waste.) 
 
 when liable for removal of virgin soil, 147 
 
 in possession under illegal lease, may support trespass when, 176 
 
 remedy by incoming against out-going, for tort, 147, 172 
 
 may support trespass, when, 176, 7 
 
 for years, cannoi support trespass for carrying away trees, 179 
 
 aliter for cutting them, when, 170 
 TENANT AT SUFFERANCE, 
 
 may support trespass, 176 
 
 cause against, foy wilful waste, 140 
 
INDEX. 841 
 
 TENANT IN TAIL, 
 
 trover by, for trees, 149 
 TENANT AT WILL 
 
 tenancy of, when determined by feofiinent, &c. 175 
 may support trespass, 176 
 when liable in trespass, 179 
 TENANCY IN COMMON, 
 
 when to be replied specially, 594 
 TENANTS IN COMMON, (see title PaHies.-) 
 actions, &c. by, 
 
 when may join or sever in action ex contractu, 12, 13 
 when they must join in action for a tort, 65 
 
 in replevin, 163 
 must sever in an avowry for rent, 12, 13, 65, 163, 566 
 how to avow and make cognizance, 566 
 
 how to avow and make cognizance for a distress damage feasant, ib. 
 when cannot sue each other ex contractu, 39 
 in tort. 79, 156, 172, 179 
 (jjeotment and for mesne profits, 79, 191, 195 
 must sever in real actions, when, 62, 65 
 actions, &c. against, 
 
 how to be sued, 41, 87 
 
 when they must be jointly for torts relating to their land, 83, 87 
 when must plead specially, 156 
 when to be replied specially, 594 
 TENANTS, (JOINT), (see title Joint- Tenants.) 
 TENDEK, 
 
 when not necessary to be stated by plaintiflFand readiness sufficient, 324, 326, 327 
 plea of, 
 
 in assumpsit, 479 
 in debt, 481, 485 
 in covenant, 488 
 in trespass, 506 
 in bar in replevin, 592 
 
 when cannot be pleaded with general issue to the whole, 560 
 how to conclude, 558, 559 
 cannot plead in action for unliquidated damages, 4 Nev. & Man. 200 
 replications to a plea in assumpsit, 579 to 582 
 in debt, ib. 584 
 in trespass, 598 
 TENEMENT, 
 
 when too general a description in pleading, 189, and note (t), 376 
 TERM, 
 
 executor of lessee of, when liable to be sued, 49 
 TERMOR, 
 
 when executor of, may support covenant for rent, 22 
 TERMS, (see title Title of Term.) 
 
 statute regulating, 1 Wm. 4, c. 70, s. 6 — 218 
 duration of, &c. ex officio noticed, &c. ib. 
 
 statement of, in a declaration, (see Title of term,) 292 to 295, 738 
 in a plea in abatement, 455 
 in a plea in bar, 549 
 
 Reg. Gen. Hil. T. 4 W. 4, respecting, 549, 739 
 TESTATUM EXISTIT, 
 
 setting out deed by, in a declaration, 233, 534 
 in a plea, ib. 
 THAMES, 
 
 extent of, judicially taken notice of, 218 
 
842 INDEX. 
 
 THEN AND THERE, 
 
 in stating time and place, effect of, 259, and note (x) 
 THERE, 
 
 when it does not refer to last antecedent, 239 
 TIME, 
 
 of performance, 303 
 
 Low calculated, 217, and notes, 
 
 date of instrument, 311, and note (n), 258, 647 
 
 of what time courts ex officio take notice, 217 
 
 statement of it in declaration, 257 to 260, 263, 266 
 
 in stating a material fact, 257 &c. 
 
 how often to he stated, ib. 261 
 
 when not necessary to be stated, 258 
 
 when precise time not material, 257, 258 
 
 in stating contracts, ib. 
 
 in debt, 364 
 
 in stating torts, 258, 393, 394 
 when torts may be stated to have been committed on several days, 258, 393, 394 
 no cause of action or damages to be stated after commencement of actios, 258, 
 
 &c. 
 laying impossible day, 258, and note (i) 
 inconsistency in dates, 259 
 how laid, 258, 259 
 
 when mistakes aided, 258, 259, 671, 675, 681 
 statement of it in plea, 522, 638, 539, 553 
 when not traversable. 257, 614, 647 
 
 when immaterial, and not a departure, 647 
 new assignment as to the time, 627, 628, ^c. 632, &c. 
 how obtained by a dilatory plea or demurrer, (see title. Sham plea.y 
 of pleading between 10th August and 24th October, 730 
 TITHE, 
 
 action for not setting out, lies against two, 86 
 lies at suit of an executor, 69 
 
 whether it lies against an executor, 90 
 
 form of remedy, 101, 112. 369, 682 
 when action lies for value of, 101, 112 
 
 remedy for not carrying away, 139, 384 
 for obstructing proprietor from caiTying away, 138 
 ejectment for, 138 
 
 trespass lies by owner of, against occupier, for injury, 169 
 TITLE DEEDS, 
 
 property in, accompanies ownership of estate, 121, 122 
 remedy for, ib. 
 TITLE OF ESTATE, (see titles Z)ec?am^io». Ejectment. Pleas. Replication.) 
 statement of it in declaration, 
 
 when it must be stated in covenant or debt, 363 to 365, 375 
 
 derivative title, 363 to 365, 368 
 
 Unnecessary statement, when it does not vitiate, when not traversable, 363 
 
 in actions of tort, when necessary, and how, 379 to 383, 397 to 399 
 
 when not traversable (see title Estoppel,) 364 
 what variance in statement, 385 to 387 
 statement of it ia a plea, » 
 
 when title to land, &o. may be given in evidence,, 500,, 492, 3, 4 
 
 right to easement must be pleaded, 505 
 
 statement of, under 2 & 3 W. 4, o. 71, s. 5, 383, 512, 520, 713, 14 
 statement of it in a replication, 
 
 when necessary, 619, 20 
 
IKSEX. 843 
 
 TITLE OP 'EBUA.TT^— (continued.) 
 in trespass, ib. 
 
 ■when it need be answered in replication, 607 
 when it may be traversed in, 611 
 TITLE OF COURT, 
 
 what in declaration, 262, 263, 730 
 in a plea, 549 
 in a replication, 598 
 TITLE OF DECLARATION, 
 former practice as to, 263 
 the present practice, 263 to 266, 730 
 consequences of mistake in, 264 
 TITLE OF TERM, 
 
 of a declai-ation, 262 to 265, 730 
 of a plea, 
 
 of what term formerly in case of a plea in abatement, 437, 456, 549 
 
 of a plea in bar, 549 
 of a replication, 598 
 TOLLS, 
 
 who to sue for, 7, 11, 106 
 debt or assumpsit for, 101, 109 
 indebitatus assumpsit for goods due for, 101 
 remedy for disturbance of, 142 
 declaration for disturbance of, 377, 382, 383 
 plea of distress for, 592 
 prescription to distrain for, &o. 616 
 TOMBSTONE, 
 
 defacing, &o. 142, 174 
 TORTS. 
 
 when executor of deceased may sue for, 20, 68, 70, 91, 715 
 costs now in general payable to acquitted defendant, 88 
 TRANSPORTATION, (see title Pardon.) 
 
 replication to plea of coverture that husband is civiliter mortuus, 581 
 TRAVERSE, (see titles De Injuria. Denial, Sfc.) 
 defined to be synonymous to denial, 604 
 formal traverse, what, and language of 605 
 when more than one fact may be put in issue, ib. 
 
 what must be put in issue, 606 
 1st, general denial of the whole plea, or de injuria, when allowed, &c. 606 to 
 61,0 
 
 form of it, 610 
 2d, denial of only part of the plea, 611 to 622 
 ■ 1st. what fact may be denied, 611 to 615 
 of immaterial traverses, 612, 621 
 must be of a material fact, 611 
 may be of matter under a videlicet, ib. 
 only of a matter expressed, &c. ib. 
 when of command, ib. 595 
 
 not of matter which defendant estopped to deny, 611 
 not of immaterial time, place, or other matter, 621 
 not of intent, 612, 621 
 not of matte'r of law, 612 
 not on a negative allegation, 613 
 not too large, 541, 613 
 when advisable, 614, 5 B. & Adol. 393 
 nor to narrow, 616 
 ^d. modes or form of such denial, 616 to 622 
 
 1. protesting a part, de injuria absque residua causa, 616 to 618 
 
844 INDEX . 
 
 TRA VEESE— Continued. ) 
 
 2. a direct denial of a particular allegation without a formal traverse, 
 
 618 
 
 3. a formal traverse, 619 
 
 when improper or not advisable, ib. 
 when necessary, ib. 
 form of it, 620 
 
 inducement, ib. 
 beginning of the traverse, ib. 
 language of, 621 
 conclusion of, 551, 639, 741 
 when a traverse after a traverse, 621 
 consequence of improper and immaterial traverses, ib, 
 defects in, when and how aided, 622 
 3d. denial, showing a particular breach, ib. 
 when proper or not in a plea, of time or place, 525, 556, 611 
 when too large, 613, 541 
 
 when plaintiff may vary from defendant's traverse of time or place, 621 
 TREASON, 
 
 plea of attainder of plaintiff of, 448 
 TREASURER, (see title Parties.) 
 when he cannot sue, 7 
 pleadings in actions by, 14 
 TREES, (see titles ^toure*. Landlord and Tenant. Real Property.) 
 actions relating to, 63 
 
 by or against executors, 69, 91 
 case for waste to, 61, 149 
 trover for, 149, 156 
 trespass for cutting of, 175, 179 
 right if they divide estates, 79, note (e) 
 TRESPASS, (see title Trespass, Action of.) 
 meaning of the word, 69, 170 
 
 when executor or administrator of deceased may sue for, 20, 68, 70, 715 
 TRESPASS AB INITIO, 
 
 the nature of it, 173, 179, 180 
 when trespass lies for it, ib. 
 replication of matter of, 686 
 TRESPASS FOR MESNE PROFITS, (see title Mesne Ptofits.) 
 TRESPASS, ACTION OF, 
 
 when executor or administrator of deceased may sue for, 20, 68, 70, 715 
 definition and general nature of action, 166 
 
 by and against whom it lies, (see title Parties to Action,') 60 to 93 
 general points governing this action, 125 to 132 
 
 lies only for injuries committed with force, and immediate, 125, 126, 166 
 when patty may waive trespass and sue in assumpsit, 100, 407 
 when to waive trespasss and sue in case, 139 
 concurrent remedy with trover, 161, 139, 154, 171 
 costs now payable to acquitted defendant, 88 
 for what injuries not under color of process, 
 
 for plaintiff's own personal injury, 167 to 180 
 to the person, 
 
 to what absolute rights, 167 * 
 to what relative rights, ib. 
 to personal property, 
 
 by executor or administrator of deceased, 20, 70, 715 
 to what property, 168 , 
 
 animals domiciled and ferEE naturvL', &.C. ib. 
 plaintiff's interest therein, ib. 
 
INDEX. 845 
 
 TRESPASS, ACTION or— (continued.) 
 
 for what injuries not under color of process — (continued.) 
 to personal property — (continued.) 
 
 actual or constructive possession and property necessary, ib. 
 general owner, who, 169 
 bailee, who has an interest, ib. 
 bailee having no interest, 170 
 mere bare possession, ib. 
 assignees of bankrupt, ib. 
 the injury, 171 
 for what illegal taking, ib. 
 for what other injury, ib. to 173 
 for a trespass ah initio, 172, 179, 180 
 . to real property, 173 
 to what property, 
 
 must be corporeal, &c. 173, 174 
 the plaintiff's interest therein, 175 
 actual possession requisite, ib. 
 what possession sufficient, ib. 
 exclusive possession necessary, ib. to 178 
 reversionary interest insufficient, 179 
 executor and administrator, when may sue for, 20, 7(J, 7l5 
 the injury, nature of, 178 
 
 an entry of defendant essefttial, ib. 
 what entry sufficient, ib. 
 nonfeazance will not suffice, ib. 
 when it lies against a lessee, joint tenant, &o. 179 
 for the act of an agent, servant, cattle, &c. when, 180, 181 
 
 when the principal is not liable, ib. 
 for what injuries under color of 'process, and what not, 181 
 
 1. where an erroneous judgment, &c. is given, ib. 
 
 2. when the court has no jurisdiction, 182 
 
 3. when the proceedings were defective, 184 
 
 4. where the process was misapplied, &c. 185 
 
 5. when the process is abused, &c. ib. 
 
 6. where the ministerial officer has acted without Warrant, ib. 
 
 7. where the process was legal but maliciously issued,- 186 
 pleadings, costs and judgments in, in general, ib. 
 
 pleadings in, in particular, 
 declaration in, 
 
 title of court and date, 262 to 266, 730 
 venue in (see title Venue,) 268 to 273, 74l 
 commencement, 280 to 286, 730 
 statement of the matter or thing affected, 376 to 378 
 of the plaintiff's right or interest, 378 to 385, 713 
 variances, 385 to 387 
 of abuttals of closes, 744 
 ofthe injury, 387 to 393 
 statement of the damages, 395, 399 
 
 alia enormia, 397 
 several cou^s, 408 to 418, 739 
 conclusion, 418 to 420 
 pledges, now to be omitted, 420, 731 
 defects, when aided, 421, 671 to 684 
 
 statement of abuttals in action quare cluusumfres;it, 279, 280 
 744 
 general issue in, in general, when formerly proper, 500, 507 
 
 Vol. I: "106 
 
846 iNBSX. 
 
 TRESPASS, ACTION OF— (cowfomwerf.) 
 
 pkas in, (see title Plea and particular titles.') 
 
 alleging rigtt of defendant generally, 713 
 
 when advisable not to plead to it, 507, 508, 639, 640 
 
 special plea in general, when proper, ib, 
 
 in trespass to persons, 
 
 when plea should be special, 500, 501 
 in trespass to personal property, 
 
 when plea should be special, 502 
 in trespass to real property, 
 
 when plea should be special, 502 to 506 
 in actions against justices, &o. 506 
 when not advisable to plead specially, 507 
 plea of not guilty, what to put in issue, 520, 744 
 when several pleas allowed in, under Reg. Gen. Hil. T. 4 W. 4, 
 565, 740, 744 
 Replications in (see title Replications.') 
 Rejoinders in (see title Rejoinder.) 
 New Assignments in (see title New Assignment. ) 
 TROVER, ACTION OP, 
 
 general nature and applicability of, 146 
 
 1. in respect of what personal property it lies, 146 to 148 
 
 2. what interest the plaintiff must have, 148 to 153 
 
 1. of an absolute property, 148 
 
 2. a special property, 151 
 
 3. a right of possession, 152 
 
 3. for what injury and what amounts in a conversion, 153 
 
 1. a wrongful taking, 153 
 
 2. assumpsit of property, 154 
 
 3. a wrongful detention, 156 
 
 1. when a demand necessary, 157 
 
 2. who should demand, ib. 
 
 3. upon whom demand to be made, 158 
 
 4. how made, 159 
 
 5. demand, when made, ib 
 
 6. of the refusal, 160 
 ttgainst whom it does not lie, &c. 154 
 
 if action against several a joint conversion by all must be proved, 86 
 in relation to husband and wife, 93 
 when servant liable for, 84 
 when sheriff not liable for action of, 85 
 carriers, agents, tenants in common, &o. 155 
 how far trespass and trover are concurrent remedies, 161, 171 
 when preferable to assumpsit, 147 
 liability of tenant for removing yirgin soil, 147 
 wheti a concurrent remedy with assumpsit, 100 
 pleadings, &c. therein, in general, 161 
 pleadings therein, in particular, 
 declaration, 
 
 title of court and date, 262 to 266, 7^0 
 
 venue in, (see title Venue,) 268 to 223, 241 
 
 commencement, 280 to 286, 730 
 
 statement of the matter or thing affected, 376 to 378 
 
 of the plaintiff's right or interest, 378 to 386 
 
 in case of husband and wife, 74 
 
 of the injury, 387 to 393 
 
 pledges now to be omitted, 420, 731 
 Bpecial plea in, when advisable or good, 498, 499, 628, 629, 6€ 
 
INDEX. 847 
 
 TRUSTEE, (see title Cestui que Trust.) 
 
 when he must sue, 2, 3, 8, 414 
 
 under a composition deed cannot sue, when, 11, 15 
 
 of married women paying maintenance, when he may sue husband va. assumpsit, 
 104 
 
 qualified right to use the name of a trustee, 8 
 
 liability of executor and trustee, 34, 715 
 
 when cestui que trust may sue, 34 
 
 when he may sue in trover, 151 
 
 cannot sue for injury to land when cestui que trust in possession, 62 
 
 whea he may be sued and when not, 36, 37, 60, 77 
 
 when cestui que trust may sue, 2, 60 
 
 auctioneer and stakeholder considered as such, 37 
 
 pleadings in actions by, 15 
 TRUSTEES OF COMPANIES, 
 
 how to sue and be sued, 14, 38, n. (S) 
 TURNPIKE ACT, 
 
 commissioners of, how to sue, 14 
 
 liability of, and persons under them, 38, and id. note (J) 
 
 persons acting under, may plead general issue, 507, 715 
 UNLIQUIDATED DAMAGES, 
 
 when assignee may sue for, 28, n. {v) 
 UNCERTAINTY, (see title Certainty.) 
 
 when and how aided, 236, 261, 677 
 
 must be demurred to, ib. 
 UNDER LESSEE, 
 
 when not liable, 50 
 
 when liable for nuisance, 80 
 UNDERTOOK, 
 
 word not essential when, 98, n. {y) 
 UNNECESSARY MATTER, (see title " Surplusage.") 
 
 introduction of, forbidden, 229, n. (x) 
 
 when may be demurred to, 230 
 UNITY OF POSSESSION, Peake Add. 152 
 UNIFORMITY oe PROCESS ACT, 
 
 2 W. 4, c. 39, 704 to 712 
 USE AND OCCUPATION, 
 
 when assumpsit lies for, 7, 11, 106, 344, 345 
 
 when not, 107 
 
 assumpsit for, form of count, 344 
 
 debt lies for, 109 
 
 defendant estopped from disputing landlbrd's title, when, 189, 482, and note (i) 
 561 
 USURY, 
 
 ■ when deed void for, assumpsit lies, when, 105 
 
 might before Reg. Gen. Hil. T. 4 W. 4, have been given in evidence in as- 
 sumpsit, 477, 743 
 
 must be pleaded in actions on specialty, 484, 743 
 
 replication to a plea of, in assumpsit, 681 
 debt, 584 
 
 venue in action for, 272 
 VARIANCE, (see titles Dedarations. Fleas, and different actions.) 
 
 on trial before sheriff, 4 Tyr. 271 
 
 between writ and declaration cannot be pleaded, 244, 
 how ■to be taken advantage of, ib. 
 in names of the parties, 244 to 247, 302 
 in number of parties, 248, 716 
 iu the character in which the parties sije, &c. 250 
 
848 INDEX. 
 
 YARIA^GE— (continued. ) 
 
 in the cause and form of action, 253 
 in slander, 3 Tyr. 844 
 in a declaration in assumpsit, (see title Assumpsit,) 298 to 317, 666 
 in debt, 367 
 in case, 385 to 387 
 in day, or time, or place, when not material (see titles Time. Venue,) 276, 
 
 277, 393, 394 
 in stating law, 220, 230, 231 
 
 in stating act of parliament, how taken advantage of, 215, 216 
 in matter of inducement, when material, 292, 385 
 in stating consideration, when material, &c. 297 
 between the statement and evidence, 305 to 317 
 amendment of, 319, 704, 719 
 VENDOE AND PUECHASER, (see titles Goods sold. Purchaser.) 
 assumpsit against vendee for not accepting goods, 102 
 
 for not delivering bill in payment, ib. 
 upon warranty, 104 
 against vendor for not completing contract, ib. 
 debt in detinet lies for goods sold, 109, 121, 122 
 purchaser may sue for breach of good title, though committed while vendor had 
 
 estate, 19 
 purchaser of goods from sheriff under execution, when not liable to be sued, 80 
 VENUE, (see title PZace.) 
 
 of what places court take judicial notice, 218 
 
 Eeg. Gen. Hil. T. 4 W. 4, respecting, 242, 276, 279, 741 
 when bail discharged by mistake in, 244, 270 . 
 in a declaration, 
 
 general rules as to laying it, 266 to 268 
 
 may be tried in any county, Chanc. Bill, 14th March, 1833 
 when local, must be laid in real county, 268 
 real actions, &c. ib. 
 ejectment, ib. 
 
 in action for mesne profits," 194 
 actions for injuries to real property, ways, &c. 268 
 trespass and replevin, ib. 
 
 when no remedy here where land is laid out of England, ib. 
 may be laid in another councy, with consent, and by leave of the 
 
 court, ib. 
 option of one of several counties, when, 269 
 in debt or scire facias, or recognizances, ib. 
 debt for rent-charge against pernor of profits, ib. 
 local custom, &c. ib. 
 
 power or judge to dii-ect local actions to be tried in any countv. 
 719 ' 
 
 when transitory, 269 
 
 actions for injuries to the person or personal property, ib. 
 actions on contracts, 270 
 when advisable to lay it in proper county, ib. 
 in actions on leases, 270 
 
 transitory between lessor and lessee, ib' 
 though land lie abroad, ib. 
 in the detinet against an executor, ib. 
 is local in the debet and detinet against executor, ib. 
 transitory in covenant by assignee of lessor against lessee, 271 
 or in covenant by lessee against assignee of reversion, ib. 
 
INDEX. 
 
 849 
 
 VENUE — ( continued. ) 
 
 in declaration — (continued) 
 
 local in debt by assignee, &c. of reversion against lessee, ib. 
 local in action by or against assignee of lessee, ib. 
 
 or against executors of lessee, in debet and detmet, 
 ib. 
 local by statutes, 271 
 
 actions on what penal statutes, ib. 
 
 does not relate to actions on all penal statutes, 272 
 
 in actions against justices of the peace, &c. and other public officers, 272, 
 
 273 
 where the cause of action arises in two counties, 272 
 in action for usuyy, ib. 
 mode of stating the venue, 274 to 277 
 in margin, 274 
 as to statement and repetition of, in the body of the declaration, 242, 276, 
 
 279, 741 
 when a particular parish or place to be stated, ib. 275, 276 
 in inferior courts, 275 
 recent alterations respecting, 242, 276, 279 
 no venue to be stated in body of declaration, 279, 331, 741 
 repetition of, no ground of demurrer, 662 
 Eeg. Gen. Hil. T. 4 W. 4, in trespass, 279, 744 
 statement of name of abuttals, ib. 
 where the matter has occurred abroad, 
 in stating matter of record, 276 
 should be stated distinctly to every material fact, ib. 
 when the place is or is not material, 275 to 277 
 in case, trespass, and replevin, 269, 277, 279, 394 
 consequences of mistake and when aided, 277 to 280 
 in a plea in abatement not necessary, 458 
 in a plea in bar not necessary, 538 
 
 when material, 522, 538 
 VEKDICT, 
 
 amended, when, 511 note. • 
 when not to be taken generally, 411, 412 
 what defects cured by, 421, 673 to 682 
 when a count in part defective aided, 877, 682, 2 Tyr. 468 
 in a plea, 568 
 VEBIFICATION, 
 
 when a plea should conclude with it, 557 
 when a replication should so conclude, 642, 643 
 the word " verify " for certify " not material, 643 
 VICAK, (see title Sector.) 
 VIDELICET, (see title Scilicet.) 
 effectofit, 317, 318 
 
 matter laid under it, when material, is traversable, 611 
 VI ET AKMIS, 
 
 meaning of the words, 126 
 
 when necessary, and consequence of omission, 232, 387 
 when improper in case, 145 
 VmGIN SOIL, 
 
 tenant when liable for removal of, 147 
 VmTUTB CUJUS, 
 
 when the allegation is traveusable, and when not, 612, 613 
 WAGES, 
 
 assumpsit lies on, 101 
 
 statement of inducement in declaration on, 290 
 
850 INDEX. 
 
 WAGER OP LAW, 
 
 when formerly permitted in dent, 113 
 
 now ajbolished by 3 & 4 W. 4, c. 42, s. 13, 114, 121, 125, 481, 717 
 
 when formerly permitted in detinue, 125 
 WAGES, 
 
 when may declare for, generally, 348 
 
 when must declare specially, ib. 
 WALES, 
 
 plea to the jurisdiction, 443 
 
 courts of Great Sessions abolished, ib. 
 WAE, 
 
 when Courts ex officio take notice of, 214 
 WARD, (see title Guardian.) 
 
 replication to plea, justifying taking plaintiff as, 609 
 WAREHOUSEMAN (see title Wharfinger.) 
 WASTE, EQUITABLE, 
 
 bill in equity for, against personal representative of tenant for life, 70 
 WARRANT, (see titles Sheriffs. Writs.) 
 
 case the remedy for caption on warrant maliciously obtained, 138 
 
 sheriff's not necessary to allege that it was under seal, 221 
 
 justifying under, (see title Writs. ) 
 WARRANTY, 
 
 agent not liable for breach of, when, 84 
 
 actions for breach of, assumpsit, 102 
 
 case for breach of, 13, 384, 388 
 
 how to declare on, 355, 384, 388 
 
 when plaintiff must sue specially on, 385 
 
 plea to action on, 742 
 WARRANTY and PINE, 
 
 when feme covert liable to be sued on, 58 
 WASTE, 
 
 under-lessee when liable for, 50 
 
 who may sue for, 63, 66 
 
 in case of husband and wife, 74 
 
 when executors cannot sue for, 70, 715 
 
 when executors can be sued for, 70, 91, 715 
 
 remedies for, 
 
 1, assumpsit, 102, 141 
 
 2, covenant, 126, 141 
 
 3, case, 140, 141, 179 
 how to declare for, 22 
 
 entry to view, replication as to; 
 WATER AND WATERCOURSE, 
 
 assumpsit for use of, 104 
 
 remedy for injuries to, 140 
 
 when trespass and when case lies for injuries to, 128, 17 5 
 
 ejectment for, how to be brought, 189 
 
 declaration for obstructing, 381 
 
 variance in stating injury, 391 
 WAIVER OE BAIL, 244 
 
 of one action for another, 107 note. 
 WAY, RIGHT OF, 
 
 remedies for injuries to, 142 
 
 how to be described in pleading, 381, 713, 714, 744 
 
 declaration for disturbance of, how framed, .^83, 884 
 not repairing of, 585, 384 
 
 pleas of right of way must be pleaded, 505 
 
 when to be pleaded by metes and bouads, lb, 
 
 pleas in bar in replevin, of right of, 591 
 
tN0iS3E. ^£ 
 
 WAT, RIGHT 0¥— (continued.) 
 
 replication to plea of, 597, 618 
 
 when the replication should be special, 6S(J 
 
 new assignment extra viam, and costs upon, 6S7 to 639 
 WEIGHTS AND MEASURES, 
 
 courts take judicial notice of, 219 
 WHARFINGER, 
 
 when he may sue on a contract, 7 
 
 assumpsit against, 102 
 
 when trover lies against, 155 
 WHEREAS, 
 
 when demurrable on trespass, 256 
 
 when not so in assumpsit, ib. 
 WINDOW, (see title Ancient Lights.) 
 WITNESS, 
 
 remedy against, for not attending trial, 139 
 
 interested, when admissible, 720 
 WORDS, (see title Slander.) 
 
 of what English words ex o-fficio takes notice, 229 
 WORK AND LABOR, 
 
 proof — ^iiiferiority of works, 4 Tyr. 43 
 
 master may sue for, of apprentice enticed away, lOO 
 
 assumpsit lies for, 100 
 
 on promises to perform, 102 
 
 debt lies for, 109 
 
 common counts for, when proper or not, 348 j 349, 726 
 WRITS, (see title Preecipe.) . 
 
 amendment of when allowed, 250 
 
 date of, now considered the commencefnent of action, 259, 260, 707 
 
 service of, 704, &c. 
 
 prescribed forms of, ib. 
 
 alias and pluries writs into different cbtintries, 729 
 
 statement of date of first writ in issue, 260, Im 
 
 number of defendants in, 249, 250, 729 
 
 remedy for injury committed under color of legal process, 181 to 186 
 
 courts take judicial notice of their own process, 219 
 
 statement of, having been issued in vacation, when bad, 218 
 
 may be issued if not bailable, before cause of action accrues, 453 
 
 how to be described since uniformity of process act, 2 W. 4, c. 39, 249 704, &0. 
 
 how plaintiff may declare on, as to parties to action, 244 to 250 
 
 variance between writ apd count not pleadable, 450 
 nor proceedings set aside for, ib. 
 
 what consequence of variance, ib. 730 
 
 pleas in abatement to, 450 to 454 
 
 pleas justifying trespass tinder, ho^ framed, 534 
 
 replications thereto, 593, 594 
 
 new assignments relating to, 632 
 
 provisions of 2 W. 4, c. 39, respecting, 704, &c. 
 WRIT OP ENTRY, 
 
 when it must be resorted to, 191 
 WRIT or ERROR, 
 
 interest allowed on, 721 
 WRIT OF FORMEDOM, 
 
 when it must be resorted to ib. 
 WRIT OF INQUIRY, 
 
 execution of, before sheriff, 717, 718 
 
862 INDEX. 
 
 "WEITTEN INSTKTJMENTS, 
 
 amendment of statement of, at nisi prius, 319, 704, 719 
 
 to take case out of statute of limitations, 703 
 
 admission of, 717, 786 
 WRONG-DOEK, 
 
 personal representative of, wben liable in case of death of, 20, 68, 70, 91, 715 
 WRONGFUL ACT, 
 
 general issue under Eeg. Gen. Hil. T. 4 W. 4, only puts in issue the wrongful 
 act, and not the right, 154, 744 
 WRONGFUL SALE, 
 
 when sheriff allowed expenses of, 161 
 
KP 8870 05!^ 1859 
 
 
 Author 
 
 Chitty, Joseph 
 
 Vol. 
 
 V.l 
 
 Title 
 
 A Treatise on Pleading 
 
 Copy 
 
 
 
 Date 
 
 Boiiowet's Name 
 
 
 
 
 
 
 
■'} 
 
 if^