HARVARD LAW LIBRARY 
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 Sj yJfo^i^^Jl^ 
 
 PRACTICAL TREATISE ^^^ 
 
 PLEADING: o^/^ 
 
 AND 
 
 ON THE PARTIES TO ACTIONS, 
 
 AND THE 
 
 FORMS OF ACTIONS. 
 
 WITH A SECOND VOLUME, 
 
 CONTAINIXG 
 
 PRECEDENTS OF PLEADINGS. 
 
 IN TWO VOLUMES— VOL. I. 
 
 BY JOSEPH CHITTY, Esq^. 
 
 OF THE MIDDLE TEMPLE. 
 
 J^EW-TORK: 
 
 PUBLISHED BY ROBERT M'DERMUT, LAW BOOKSELLER, 
 NO. 1, CITY HOTEL, BROADWAY. 
 
 1809.
 
 Isaac Rilet/, 
 Printer.
 
 TO 
 THE RIGHT HONOUHABLE 
 
 THOMAS, LORD ERSKINE, 
 
 &c. &c. &c. 
 
 My Lord^ 
 
 HAVING been encouraged by your Lordship to 
 undertake the folloxving treatise^ I noxv humbly beg leave 
 to dedicate to you the residt of my labours ; and at the 
 same thne to express the deep sense xvhich I entertain 
 of the many favours received from your kindness^ and 
 in particular ,, the most gratifying mark of confidence^ 
 which you have conferred^ by honouring me with the pro- 
 fessional tuition of your son. I beg to subscribe myself 
 with the greatest gratitude and respect^ 
 My Lord, 
 
 Tour Lordship'' s 
 most obliged and 
 
 obedient serva7it, 
 
 Joseph Chitty. 
 Temple, 7tli November, 
 A. D. 1808,
 
 PREFACE. 
 
 IN submitting the following treatise to the public, it 
 inay 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 proposed 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 Parties to an action, the Forms thereof^ 
 or the Pleadings therein; and the very frequent defeats^ 
 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 jirst chapter, which relates to The Parties to 
 an action^ I have endeavoured to point out who should 
 be made the plaintiffs and who the defendants, as well in 
 actions on contracts as for toi-ts, and not only with re- 
 ference to the interest and liability of the original par- 
 ties, and the number of them, and whether standing in 
 the situation of agents, joint-tenants, tenants in com- 
 mon, 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 the contracting parties, on bankruptcy, in- 
 solvency, or marriage. The consequences of mistakes 
 in the proper parties, and how the\- are to be taken ad- 
 vantage of, and when they are aided, are also pointed 
 out.
 
 PREFACE. 
 
 In the second chapter are considered the Form and the 
 Particular Applkability of each Action ; the pleadings, 
 judgment and costs therein in general ; the consequen- 
 ces of mistake ; the Johider of different forms and of 
 different rights of action ; the consequences of Misjoin- 
 der ; 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, replevin, trespass and ejectment, I have 
 endeavoured to confine my observations to the cases, 
 where the action is sustainable, or whan 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 this treatise. (a) I have, however, in 
 one instance, thought it advisable to depart from this 
 plan, in order the better to explain the distinction be- 
 tween the action of trespass^ and that of trespass on the 
 case ; and for this purpose, I have endeavoured to state 
 the distinctions between torts committed in fact, or in 
 legal consideration with and without force, and between 
 torts immediate, and consequential, and how far the le- 
 gality of the original act, or the defendant's intention 
 may affect the form of action, and the difference made 
 by the circumstance of the defendant's having acted un- 
 der colour of process. The consequences of mistake in 
 the form of action are also stated. 
 
 The foinder of different Forms and of different 
 R'ig'hts of action, and the consequences of mistake, are 
 of the greatest importance to the success of a cause. 
 
 {a) In many works under the title of a particular action, avc find tlie na- 
 ture of rights considered ; as for instance under the head " .Assumpsit," af- 
 ter 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 Aplcuding point of view, where the object of iuquiry is merely tlie 
 application of the form of action and not the right.
 
 PREFACE. vii 
 
 and I have, therefore, with some minuteness pointed 
 out the particular instances o{ joinder which may be 
 most likely to arise in practice. 
 
 In various cases, the plaintiff has an Election of seve- 
 ral different fonns of action for the same injury, and a 
 judicious choice is so material, that it may frequently 
 enable the plaintiff to enforce his claim, which would 
 be defeated 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 re- 
 medies. 
 
 In the third chapter^ a few General Rules relating to 
 Pleading are collected, and pursuing the definition of 
 pleading, (viz. a statement in a logical and legal form 
 of the facts of which the courts are not bound ex officio 
 to take notice,) I have first pointed out, what facts are 
 necessary to be stated, distinguishing those of which 
 the court will ex officio take notice, without their being- 
 shewn in pleading ; and secondly, the mode of stating 
 those facts, with reference to certainty, and other par- 
 ticulars ; and thirdly, I 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 Praecipe^ 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 
 contracts or for torts. In assumpsit^ the appropriate 
 special, and common 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 prece- 
 dents, and notes in the second volume, than to attempt, 
 in the first, to point out the structure of the declaration.
 
 viii PREFACE. 
 
 in each particular case ; I have, however, considered 
 the general rules to be observed in framing declarations 
 in actions for torts, and which will be found to relate to 
 the statement of, first^ the matter or thing affected ; 
 secondly^ the plaintiff 's r?^/^^ or interest ; thirdly^ the in- 
 jury; sind fourthly ^ the resulting ^aw<7^^*. 
 
 The utility of Several Counts in the same declaration 
 and the forms thereof, are also treated of in this chap- 
 ter, which concludes with a summary of the instances, 
 in which different defects in a declaration will be aided. 
 
 The Claim of Conusancej statement of the defendant's 
 Appearance^ and Defence^ the Demand of Oyer^ and 
 statement of a Deed upon it, and the different descrip- 
 tions of Imparlances^ being connected with pleading, are 
 examined in the fifth chapter. 
 
 In the remaining chapters are considered in their na- 
 tural order — Pleas to the yurisdiction and in Abatem.enty 
 und the proceedings thereon ; pleas in Bar to the action, 
 and Avowries, and Cognisances in replevin ; Replica- 
 tions, and Nexv Assign7nents, and pleas in bar to avow- 
 ries and cognisances in replevin ; Rejoinders, and the 
 subsequent Pleadings ; Issues, Repleaders, Pleas Puis 
 Darrein Continuance ; Demtirrers and Joinders in de- 
 murrer, and this volume concludes with a copious index 
 of the contents. 
 
 As the principal object of ^\\^ frst volume is directed 
 to the statement of the General rules affecting pleading, 
 I have thought it advisable in a second volume, to give 
 Precedents of the Pleadings most likely to occur in prac- 
 tice, with notes. The contents of this second volume, 
 will appear from the analytical table prefixed, and from 
 the index at the end of that volume. 
 
 The forms of Courts, being the commencements and 
 conclusions of declarations in each court, and in par-
 
 P Rv E F A C E. 
 
 tlcular actions, and the precedents of declarations on 
 Bills of Exchange, Checks, and Promissory Notes 
 having already been published, are not given at length 
 in this volume, but the common counts for money de- 
 mands, in all the cases which ordinarily occur in prac- 
 tice, are given on account of their great utility ; the 
 statement of the subject matter of the debt in these pre- 
 cedents, not only serving in declarations in assumpsit, 
 but also in debt on simple contract, pleas and notices of 
 set-off, and in affidavits 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 very considera- 
 ble difficulty ; 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 endeavoured 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 gi^'e a prece- 
 dent for every case which might occur, but those con^ 
 tained in this volume may be readily applied to the par- 
 ticular circumstances of each case, or at least ma}' as- 
 sist 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 from 
 taking, or at least analyzing other pleadings, according 
 to the course which his own judgment or that of a 
 friend, more experienced, mav suggest. 
 
 1 ne utility of a work of this description must depend 
 on the mode in which the subject is arranged, the cor- 
 rectness of the positions supported by legal decisions, 
 the selection of the best authorities, and the facility of 
 access, b} means of a full and accurate index. To these
 
 PREFACE. 
 
 points, therefore, I have endeavoured to pay attention, 
 and be sides the reports which I have consulted, the read- 
 er is frequently referred to the Digests and Elementary 
 writers. Indeed it was impracticable to write on a sub- 
 ject upon which the authors alluded to had touched, 
 without occasionally finding some parts preoccupied, 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 considered 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 authors 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 pro- 
 fessional avocations, that I have with difficulty prepared 
 this work for publication, and the various interruptions 
 which I have experienced, must, I fear, have occasion- 
 ed some inaccuracies, for which, however, I hope the 
 candour of the reader will make allowance. 
 
 Temple, 7t1i Xovember, 
 A. D. 1808.
 
 PRACTICAL TREATISE 
 
 o?i 
 
 PLEADING. 
 
 CHAPTER I. 
 
 OF THE PARTIES TO THE ACTIOS. 
 
 JL HERE are no rules connected with the science of plead*- 
 ing so important, as those which relate to the persons who are 
 to be the parties to the action ; for if there be any mistake in 
 this respect, the plaintiff is, in general, compellable to aban- 
 don his suit and to proceed de novo, after having incurred 
 great expense : when with respect to most other objections, 
 they do not thus affect the proceeding in its inception, and oc- 
 casion comparatively but small expense. The general rule is, 
 that the action should be brought in the name of the party 
 whose legal right has been affected, against the party Avho com- 
 mitted the injury,(a) or by or against their personal represent- 
 atives ; and therefore a correct knowledge of legal rights, and 
 *of wrongs remediable at law, will, in general, direct by and ^ o 
 
 against whom the action should be bi'ought. But as in the ap- 
 pUcation of this rule, difficulties frequently occur, and as there 
 are many particular rules relating to the joinder of persons in 
 actions, and to the mode in which, and the time when, a mistake 
 of parties should be objected to or be rectified, it is advisable 
 before we consider the form of the action, and the pleadings 
 
 (a) 8 T R. 332. 1 East, 49P 
 Vot. T, [ 1 ]
 
 (Jl THE PARTIES TO THE ACTION 
 
 therein, to take a concise view of these rules, which I sliuli 
 consider under two general heads. First, when the action is in 
 form{b) ex contractu ; and, secondhj, when it.is inform ex de- 
 licto ; and under each of these heads I shall state, Jirst, who 
 are to be the plaintiffs ; and, secondly , who are to be the de- 
 fendants. 
 
 / LV .ICTIOXS IJ\' FOJi'Jl EX CO.XTRACTU. 
 
 The rules which direct who are to be the parties to an ac- 
 tion in form ex contractu, whether as plaintiffs or defendants, 
 are to be considered, Jirst, as between the original parties to 
 the contract, and secondly, where there has been a change of 
 parties, interest, or liability. And under the Jirst head, Avith 
 reference to the interest or liability of the parties, as whether 
 •# 3 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 the case of several contracting 
 parties, w'ho must or may join, or be joined ; and under the 
 second head, where there has been an assignment of interest 
 or change of credit — survivorship between several — death — 
 bankruptcy — insolvency- — or marriage. We will consider these 
 rules, Jirst, as they relate to the plaintiffs in an action. 
 
 I. PlaiiitiJ'i--. In general, the action on a contract, whether express or itn- 
 ist. As be- plied, or whether by parol or under seal, or of record, must 
 
 twccn tVx-ori- , • ,i f , • . i 7 > • 
 
 n-inal parties, 'ic brought in the name 01 the party m vvhom the legal interest, 
 
 tiiid willi ve-. 
 
 fercnec to the , ,___^ ^ 
 
 iiiteivst of tli.u 
 
 pUiintiffiu the 
 
 contract. (i) A pluintif^ frequently has an action, do not apply. Sec 3 East, 70.* 
 
 election to proceed even for a breach 6 T. 11. TOfi. East, 333, 5. and 
 
 of an express contract, cither in as- therefore I have considered the fol- 
 
 siiiiipnit or in case ,- and ■vvlien the lowjji^- rules ia their relation to 
 
 latter _/brj« of action is adopted, many the foum of the action, rather lliau 
 
 of the rules as to the parties to tlic to the subject matter of it. 
 
 * Xole. llic Cuiirt of Ccmmoii Pleas deny the propriety of the decision iu 
 3 Kuot, 70. &e 'i JVc'M Mep. o'iii. 'yii.
 
 IN FORM EX CONTRACTU. 18 
 
 in such contract, is vested. (c) Tluis the action ac^ainst a car- /. riaintijfs. 
 vicr for the loss of goods, must in general, be brought in the 
 name of the consignee, and not of the consignor,(c/) the law 
 implying the contract by the carrier to have been n^ade witii 
 the consignee, in whom the property in the goods v/as vested 
 by the delivery to the carrier ; and though a covenant with 
 several persons be joint and several in the terms cf it, yet if 
 the legal interest and cause of action be joint, the action must 
 be brought by all the covenantees : and on the other hand, if 
 the interest and cause of action be several, the action may l^e 
 brought by *one only, though the covenant be in tlie terms of "''" 4 
 
 it only joint. (/) And as a covenant to and with ^/, his exe- 
 cutors, administrators, and assigns, and to and with /i, and her 
 assigns, to pay an annuity to A^ his executors, Sec. during B^s 
 life, is a joint covenant to A and i), in which they liave a 
 joint legal interest, although the bcnrjit be for A only ; there- 
 fore on the dcatli of A^ the right of action survives to i>, and 
 A^s administrator cannot sue on the covenant, because the ac- 
 'ion follows the nature of the legal interest.(,§-) 
 
 When a bond is made to A to pay him or a third person a 
 sum of money for the bcivjit of the latter, the action must be 
 brought in the name of A^ and the third person cannot even 
 release the demand. (//) And when a deed is made inter jiar- 
 tes, (i. e. between A of the first part, and B of the second 
 part,) C, a stranger, cannot sue on a covenant therein, thoug-h 
 made for his benefit. (/) But when the deed is no\.i7iler fiartcs, 
 he may sue whether it be indented or not.(^) And upon a 
 single bond or deed poll reciting that the obiigor had received 
 of A 40/. for the use of C and D, equally to be divided, to 
 be repaid at such a time as should be thought best for the pro- 
 fit of C and Z), it was decided *that C and D might main;aiii 'J: r^ 
 separate actions for their respective moieties. (7) And when a 
 contract not under seal, is made with A, to pay B a sum of 
 
 (c) 1 K:et, 4'jr. S T. II. .^>32. 1 2o. .3 Lev. 1.39. .1 B. S;. P. 1 iO. ii 
 
 SuuMi'. 1;'>;>. 7 Mod. IIG. a. fi \"iii. Ahr. til. Coyciiaul, .374. 7 
 
 {il) .S T. R. 3.30. 2 S:.up.<l. 47. k. East, 14S. 
 
 B. N. P. 3G. 5 P. Wilis. 18(3. 3 B. (/) 2 Luv. 74. 3 Lev. 139. 3 P. k 
 
 k P. 582. P. 149. 11. .1. Cai-th. 7G, 77. 2 "Shy.l. 
 
 (/) 1 Samul. l.';3. aiidn. 1. Ca. llfi. 2 Inst. 073. C;>. Lk. 2,35. •» 
 
 (5) 1 East, 407. (;•) U. ibi<l. 
 
 ^//) 1 Lev. 235. 2In-t. f.73 W'.v f^l Cro. E), 720
 
 5 OF THE PARTIES TO THE ACTION 
 
 / Plaintiffs, money, B may sustain an action in his own name -.(in) but if 
 the promise had been to pay ji for the use of 5, ^ is a trus* 
 tee, and By having no legal interest, cannot sue.(n) 
 
 In general, a mere servant or agent, with whom a contract 
 is made on behalf of another, cannot support an action there- 
 on ;(o) and therefore where ^ agreed in writing to pay the 
 rent of certain tolls, which he had hired, to the treasurer of 
 certain commissioners, it was decided that no action for the 
 rent could be supported in the name of the treasurer.(^) But 
 when an agent has any beneficial interest in the performance of 
 the contract for commission, &c. as in the case of a factor, a 
 broker,(9) an auctioneer,(r) a policy broker,(s) or the captain 
 of a ship for freight, he may sustain an action in his own 
 name ; in each of which cases, however, the principal or 
 owner might sue.(?) 
 Silly. With When the contract was made with several, whether it were 
 
 relerence to 
 
 the number of under seal or by parol, if their legal interest were joint, they 
 vhowLiVjoin. ^T^^^t all, if living, join in an action in form ex contractu, for 
 * 6 the breach of it, though the covenant or contract *with them 
 
 were in terms joint and several :{t) the reason assigned is, that 
 when the interest is joint, if several were to be permitted to 
 bring actions for one and the same cause, the court would be 
 in doubt for which of them to give judgment ;(m) therefore 
 where ^ declared upon an account stated with him, of monies 
 due to him and a third person, after verdict, judgment was ar- 
 rested on the ground that the promise, whether express or im- 
 plied, 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. (jt) 
 
 (w) 3 B. & P. 149. n. a. 1 B. & 
 P. 101. n. c. B. N. P. 133, 4. 2 Lev. 
 210. 1 Ventr. 318. Sir T. Rarm. 
 302. Sir T. Jones, 102. S. C. Cowp. 
 437. 2 Ventr. 310. 1 H. B. 239. 4 
 Esp. Rep. 204. ^cc. I Vin. Abr. 333 
 to 337. cited in 3 B. & P. 149. 1 
 Stra. 592. 1 Ventr. 6. 1 Powell on 
 Cont. 353. B. N. P. 134. cont. 
 
 (»i) 2 Ventr. 310. Carth. 5. 1 
 Lev. 235. 1 B. &. P. 98. 
 
 (o) 3 B. & P. 147. 1 H. B. 84. 
 Owen, 52. 
 
 (f>) 3 B. k P. 147. 
 
 ig) 1 T. R. 112. 2 Esp, Rep. 493. 
 IH. B.82. 7T. R. 359. 
 
 (r) 1 H. B. 81. 
 
 (s) Park oil Ins. 403. 1 T. R. 114. 
 
 (0 1 H. B. 81. 7 T. R. 359, 360. 
 n. a. 
 
 (<) 1 Saund. 155. and note 1. I 
 East, 497. 501. One of such parties 
 may lawfully sue without the consent 
 of the other. 1 Lord Raym. 380. 
 
 (m) Per Lord Kenyon, in 1 East, 
 501. 
 
 (a:) 7 Mod. 1 16. Yelv. 177.
 
 IN FORM EX CONTRACTU. 
 
 But when the legally) interest and cause of action of the 
 covenantees is several^ each may sue separately for his particu- 
 lar damage although the words of the covenant are joint 
 only^Cz) and in *case of a joint interest, if two out of three 
 parties have been paid their shares, the third may, in respect 
 of such severance, sue alone for his proportion. (a) 
 
 In the case of a deed, if one or more of several obligees or 
 covenantees, who ought when living, to join, be dead, or did 
 not seal the contract, that fact should be averred in the decla- 
 ration at the suit of the others, or the defendant may crave 
 oyer and demur ;(6) but if the plaintiff be prepared to prove 
 the death of the party, the omission of the statement of the 
 death in the declaration, would be no ground of nonsuit, (f) 
 In all cases of contracts, if it appear upon the face of the 
 pleadings that there are other obligees, covenantees, or par- 
 ties to the contract, who ought to be but are not joined in the 
 action, it is fatal on demurrer,(rf) or on motion in arrest of 
 judgment, or on error ;(«') and though the objection may not 
 appear on the face of the pleadings, the defendant may avail 
 himself of it either by plea in abatement,(/) or as a ground of 
 
 /. Plaintifs. 
 
 (jf) 1 East, 497. 2T. R. 711. 
 
 (j) 1 Saund. 153, 4. n. 1. I East. 
 497. Cro. El. 729. 2 Mod. 82. The 
 instance put in 1 East, 501. will illus- 
 trate the distinction between johtt and 
 several interests. If one by inden- 
 ture, demise Black Acre to ^ and 
 White Acre to £, and covenant with 
 theni and each of them, (or accord- 
 ing to 2 .Saund. 153. n. 1. even omit- 
 ting these words,) that lie is lawful 
 owner of the said acres, there in re- 
 spect of the several interests, the co- 
 venant is made several ; but if he de- 
 mise to them the acres jointly then 
 these words are void ; for a man by 
 his covenant cannot, unless in respect 
 of several interests make it first joint 
 and then several by those or the like 
 words. In the case of -written or 
 other contracts, an express covenant 
 or stipulation with one of several per- 
 
 sons though jointhj interested, may 
 give him alone a right of action, but 
 in the case of contracts raised by im- 
 plication of law, or in the case of 
 purchases or other contracts with 
 partners in the usual course of trade, 
 the action must necessarily be in the 
 name of all the partners, who are le- 
 gally interested in the performance of 
 the contract. 2 T. R. 282. 
 
 (a) Garret v. Taylor, 1 Esp. Ni 
 Pri. 117. 
 
 (6) 2.Stra. 1140. 1 vSaund. 291. )". 
 154. n. 1. 1 B.& P. 74. 
 
 (c) 5 Esp. Rep. 32. and see 2 T. R 
 476. n. a. 1 Saund. 153. n. 1. 291. f. 
 
 ((/) 2 Stra. 1146. 1 East, 497. I 
 Saund. 153. n. 1. 291. f. 1 B. & P. 
 07. 74. 
 
 (e) Id. ibid. ' 
 
 (/) Com. Dig. tit. Abati-moTi^, E 
 12.
 
 JO'Il 
 
 8* Oi' THE PARTIES TO THE ACTION 
 
 I. riuint/jjk nonsuit in the trial upon the plea of ,Q;cneral issue. (5-) *HoW' 
 ever, when a partner has withdrawn his name from the firm, 
 although he may continue to receive part of the profits as a 
 dormant partner, it is not a ground of nonsuit that his name is 
 not joined in the action. (A) When the objection appears on 
 the face of the pleadings, in order to obtain costs, it is some- 
 times advisable to demur, as each party pays his own costs 
 when the judgment is arrested. (/) 
 
 }Vho 7H(7(/ At law as well as in equity, the courts will not take cogni- 
 
 sance of distinct and separate claims or liabilities of different 
 persons in one suit, though standing in the same relative situ- 
 ation .(A-) If (00 many persons be made plaintiffs, the action 
 will fail ; and if the legal interest of two or more be several, 
 and there be no express contract with all, they must sue se- 
 parately.(/) Thus where A, B and C were appointed as- 
 signees under a commission of bankrupt, and A and -C, each 
 paid half of the solicitor's bill, it was decided that A and B 
 could not maintain a.joi?it action against C, for his proportion of 
 the money paid, but must each bring a separate action, and A 
 and B having sued jointly, were nonsuited. (w) But when the in- 
 terest is joint in several, they may and ought to join. Thus, if 
 ./ and B in the last case had borrowed the money which they 
 paid on their Joint credit, they might have joined in the *ac- 
 lion against C.(«) So, where A and B brought an action of 
 assu7!i/isit, and declared that their several cattle had been dis- 
 trained, and that the defendant, in consideration of 10/. paid 
 b.ini 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, 
 
 (5-) 1 Snuiul. 15.). n. 1.291. f. g;. aiipoars 10 be advisable v.hcre there is 
 
 2 !Sti-a. S20. The good sense of this a <!cubt as to the number of the pcr- 
 
 rviic, -vvhich, as we shall see here- sons to be made plaintifFs, and wlicu 
 
 after, docs not prevail in the case of the declaration may l)e in case, tt> 
 
 plaintiffs in torts, or of several de- adojit tliat form of action. 
 
 fendanis, has been questioned ; but (//) 2 Esp. Rep. 408. " T. I?, 
 
 it is admitted to prevail. See 1 Saund. 501. 11. 
 
 291. f. g. 1 B. k P. 73. C T. R. (/) Cowp. 407. 
 
 770. Jn tiie case of co-executors, tl'.e (A) Per Lord Kcnyon, Ch. J. J 
 
 objection can only be taken advantage East, 220, 7. 
 
 of by a plea in abatement. 1 Saund. (/) 3 B. k P. 235. 5 East, 225. 
 
 291. g. .3T. R. 538. and post 13. As 2 T. R. 282. 4. 5 T. R. 7U. 2 
 
 the ojnission of a party is no g;rouiid Saund. IIG. n. 2. 
 
 '>f nonsuit in an action in form ex di'- {ni) 3 B. Sc P. 23.i. 2 T. R. 282. 
 
 Hrto, sec C T. R. 7.*0. 3 East, G2. it (/') ^ 1^»''> --•'■
 
 IN FORM EX CONTRACTU. 9 
 
 after verdict for the plaintiffs it was objected, in arrest of judg- / piamtiffn. 
 ment, that the plaintiffs ought to have brought several actions 
 because the promise was not an entire, but a several promise 
 made to each of the phintiffs ; but it was adjudged by Rolle^ 
 Ch. J. and two other judges against one, that the action was 
 well brought jointly by A and i?, for though the cattle which i 
 
 belonged to -</ 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 ccmideration were 
 joint, and it was not known how much the one gave, and how 
 much the other, the action was well brought jointly.(o) If 
 process be sued out in the name of two plaintiffs, the declara- 
 tion must not vary therefrom, nor can be delivered in the 
 name of one only. (fi) 
 
 Tenants in common may join or sever in an action on a con- 
 tract relating to their estate, though they must sever in an 
 avowry for rent, and the demand must be de una medietate of 
 the rent, and not of a sum of money generally, *though it * 10 
 
 may be the exact moiety .(/O Joint tenants must, in all cases, 
 join in an action ejc co7itractu.{q) Parceners also must join in 
 all actions concerning their estate, and ii one of them die, 
 pending a real action, it will abate, though it is otherwise in 
 mere personal actions. (r) 
 
 When the party, with whom a bond, simple contract, or •'^('ly. \\!icii 
 Other mere jiemonal contract was made, has assigned his in- the contract 
 terest therein to a third person, the latter cannot, in general, sW„c!l'^''" ''^^" 
 sue in his ov/n name, fiersonal contracts being choscs in action, 
 which are not, in general, assignable at lav/, so as to give the 
 assignee a right of action in his own name, but he must pro- 
 ceed in that of the assignor, or if he l)e dead, in the name of 
 his personal representativc.(5) And in such case, though the 
 assignor has become banicrupt, the action must be in his name 
 
 (o) 1 Roll. Al>r. .31. p!. f|. Sty. 15G, (9) Co. Lit. ISO. b. Bac. Abr. (if 
 
 1 jr. 20:>. e Sanud. 110. b. Joiut-tensmts, K. 1 B. Jsc P. 73. 
 
 ip) 1 B. k P. J»3. ()•) ^■in. Abr. Pufccucrs, T. \i. 
 
 ( p') Bin-. Abr. tit. Joiut-lcnants T. Hardw. 398, 'J. 
 
 and Tenants in Common, K. 5 T. (.v) 4 T. R. 3-10,1. 1 Eas(, IOI-. 
 
 K. 24'J. I Lev. lO'J. Sir T. Ilaym. Chitty on Bills, 5 to lu. 3\Viis. 2 7, 
 
 80. S. C. Kirkhani ag;unst Xtw- 1 Saund. '210. 153, ••. 
 stGiid, Esp. N. P. 117.
 
 10 OP THE PARTIES TO THE ACTION- 
 
 J. Plairitifn. and not in thai of the assignee of such bankrupt, who can only 
 sue upon contracts in which the bankrupt was beneficially in- 
 terested.(^) If, however, an express promise or contract to 
 pay the debt, or perform the contract, be made to the assignee 
 of the c/iose in action in consideration of forbearance, or in re- 
 spect of any other new consideration, such assignee may pro- 
 ceed in his own name, declaring upon such promise and new 
 
 ^- U consideration :(w) and in the case *of a negotiable bill of ex- 
 
 change, promissory note, or check on a banker,(;r) bail bond,(i/) 
 or replevin bond,(2) the assignee may, by the custom of 
 merchants in the first instance, and by express legislative pro- 
 vision in the latter, sue in his own name. And in the case of 
 a covenant running with the estate in land, &c, an assignee of 
 such estate should be the plaintiff, for any breach of such cove- 
 nant committed after he became legally entitled to the rever- 
 bion, and this without even alleging or proving an attorn- 
 ment. (a) And in such case the assignor cannot distrain for 
 rent due before the assignment, nor can he sue for any subse- 
 quent breach. (6) And in the case of an assignment of a legal 
 interest by operation of law, as in the instance of bankruptcy, 
 to the assignees of a bankrupt, or of an insolvent debtor, they 
 should be the plaintiffs ;(c) but in the common case of a com- 
 position deed, the trustees can only sue in the name of the ori- 
 gini.I creditor, in whom the legal interest in the contract still is 
 vested. (rf) 
 
 4thi7. When When one or more of several obligees, covenantees, part- 
 one of sevc- , , . ..... . , , . 
 
 ral obiis^'ees ners, or Others, havmg a joint legal niterest m the contract, 
 
 ^'^^ ^^ ''^^^'- dies, the action must be brought in the name of the survivor, 
 and the executor or administrator of the deceased cannot be 
 
 * 12 *joined, nor can he sue separately, 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 from 
 
 (0 3 B. & P. 40. 3 East, 317. {a) 2 Wils. 143. Bac. Abr. til. 
 
 («) 1 Sauntl. 210. a. 1. 1 Ventr. Covenant, E. 5. tit. Debt, C. L 
 
 153, 4. ST. R. 595. Hard. 71. 4 Saund. 234. n. 4. 241. b. Doug. 
 
 Esp. Rep. 204. 279. 
 
 (x) Chitty on Bills. (6) 3 Lev. 154. I Saund. 241. c. 
 
 (</) 4 Ann. c. IG. s. 20. See vol. Gilb. Debt, 384. 
 
 2. p. 162. n. g. (c) Post, 14, 15, IC 
 
 {z) 11 Geo. II. e. 19. s. 23. IB. (J) Ante, 10. 
 
 ^ P. Col.n. a. 2 vol. 168. n. in. '
 
 IN FORM EX CONTRACTU. 12 
 
 the survivor the testator's share of the sum recovered : (a) but I. Plaintiffs. 
 if the interest of the covenantees were several^ the executor 
 of one of them may sue though the other be living.((5) In an 
 action at the suit of a surviving partner, he may include a de- 
 mand due to him in his own separate right.(f) In the case of 
 a deed, we have seen that it is necessary to declare as surviving 
 obligee, i^c.{d) but in other cases where the defendant cannot 
 crave oyer and demur, it does not appear to be necessary to 
 state the death of the deceased partner in the declaration, 
 though it is more usual to do so.(e) 
 
 In the case of a mere /^frso??a/ contract, or of a covenant not :>i!i!y. la tii» 
 running with land, if it were made only with one person, and cu^jorb^'oi^ad- 
 
 he be dead, the action for the breach of it must be brousrht in mimsuators, 
 
 huiib, ^c. 
 the name of his executor or administrator, in whom tlic legal 
 
 interest in such contract is vested ;(/") and if it were made 
 with several persons, though during the life of the survivor of 
 them, we have seen, that the action must be brought in his 
 name, (5-) yet upon his death, his executors or aduunistrators 
 *alone can sue, and the personal representatives of the partner * 13 
 
 who first died cannot be joined. (/i) 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, or have even refused before the ordinary. (z) If, how- 
 ever, only one of several executors or administrators, bring 
 an action either of debt or assump.-iit or in tort., it is settled that 
 the defendant can only take advantage of the nonjoinder of the 
 co-executor or co-administrator, by pleading in abatement after 
 oyer of the probate or letters of administration, that the other 
 executor or administrator therein mentioned, is alive and not 
 joined in the action. (Xr) This, it is observable, is a material 
 
 (a) 1 East, 497. Salk. 444. Lord {t) 5 Esp. l{ep. .3-2. Comb. 383. 
 
 Raym. 340. Com. Dig. Merchants, 2 T. R. 4rr. 6T. It. 3fi5. Sty. 50. 
 
 D. Vin. Abr. Partner, D. I Show. (/) 2 H. Rl. 310. 3 T. R. 393. 
 
 188. Comb. 474. Curth. iro. Ante, 4. (5) Ante, 11. 
 
 (6) 1 SaumJ. 153. 11. 1. Burr. 1197. (/t) Ante, 11. 
 
 Cro. Eliz. "29. (j) 9 Co. 37. 3 T. R. 553. 1 
 
 (c)3T. R. 433. 5T. R. 49.3. 6 Saand. 291. s?. 2 Saund. 209. 212. C. 
 
 T. R. 582. Sec the Precerlcnt, -2 D. tit. .Vbatement, E. 13. 
 
 vol. 47. {k) 1 Sa<ind. 291. ^. 
 
 (<i) Ante, 7. 1 B. it P. 74. 
 
 Vol. I. [ 2 ] "
 
 1;^ OF THE PARTIES TO THE ACTION 
 
 / Plaintiffs, distinction between the effect of the nonjoinder of a party when 
 he sues in autre droit, and when in his own right. In the lat- 
 ter case we have seen that the omission would be a cause of 
 nonsuit. (/) An executor may sue as such upon a contract 
 made with him in that character, as for goods sold by him as 
 executor, and in other cases when the sum to be recovered 
 would be assets ^{m) but an executor cannot sue as such upon 
 a penal statute. (?0 
 
 In the case of a covenant or contract relating to and running 
 with an estate in larid, &c. of which the covenantee was seised 
 
 * 14 in fce^ the executor or *administrator should, under the 32 
 
 Hen. VIII. c. o7. sue for a breach in the covenantee's life- 
 time, unless in the case of a joint-tenancy,(o) and his heir(/0 or 
 devisee, though not named in the covenant with the lessor, See. 
 will respectively be the proper parties to sue for a breach of 
 the covenant after the death of the lessor.Cj') Upon the death 
 of a tenant for life, his executor is in different cases authorised 
 to sue.(r) If an executrix or administratrix marry, she and 
 her husband should join for the breach of any personal con- 
 tract made with the deceased ;C«) but if she sue alone, the de- 
 fendant must plead in ubatcmcnt,(0 and when a bond or other 
 contract is made to husband and wife as executrix he may sue 
 alone. (w) 
 
 When an executor dies after he has proved the will, his exe- 
 cutor, or the executor of such executor, is the party to sue on 
 the contract made with the original testator, and may declare 
 without noticing the first executor ;(.r) but an administrator of 
 the first executor, or an executor of the first administrator can- 
 not sue in that character, and in such case administration de 
 bonis 21071 must be obtained. (t/) An infant sole executor cannot 
 sue till of age.(r) In a declaration by an administrator dc bonis 
 
 (/) Ante, 7. ()•) 52 Hen. VIII. c. 3" 11 Geo 
 
 Im) 6 East, 405. II. c. 19. s. 15. 
 
 («) Carth. 361. Cro. Eliz. "66. (s) Com. l')ig;. Baron k Feme, V. 
 
 Com. Dig. Administrator, B. 15. 2 (^ST. R. 631. 1 Saund. 291. g. 
 
 H. Bl. 311. (u) 4 T. R. 616. 1 Salk. 117. 
 
 (o) Bac. Abr. tit. Debt, C. and lit. {x) Toller, 1st edit. 44. 26. 
 
 Heir, E. (ij) Tollei-, 84. 1 B. & P. 310. 
 
 (p) 2 Lev. 92. Bac. Abr. tit. Heir, E. (r) 38 Geo. III. c. 87. Toller, 367. 
 
 ((j) 2 Lev. 92. Bac. Abr. tit. Co- 
 venant, E. 5.
 
 IN FORM EX CONTRACTU. 14 
 
 notit a count may be added on a promise to the first admini- ^ Plaintiff-. 
 
 s^ator.(a) * 15 
 
 *In the case of the bankruptcy of a person who is 6thly. In lUe 
 
 case of bank- 
 benencially, as well as legally interested in the performance of rupuy. 
 
 a contract made before the act of bankruptcy, the action should 
 be brought in the name of his assignees ;(6) or if before they 
 are appointed, by the provisional assignee, (c) and upon the re- 
 moval of one of several assignees, unless it be followed up 
 by an actual re-assignment or release of such assignee to the 
 remaining assignees, or by new assignment of the commission- 
 ers, the removed assignee should join in the action, though in 
 an action of trover the nonjoinder can only be pleaded in abate- 
 ment. (rf) When an action is commenced in the name of the 
 bankrupt before his act of bankruptcy, it does not abate, but 
 the assignees may proceed in his name ;(f) and when a con- 
 tract is made with a bankrupt after the commission, and be- 
 fore he obtains his certificate, he may sue unless his assignees 
 interfere. (/) 
 
 When one of several partners becomes bankrupt, the action 
 must be in the name of the solvent partner and the assignees 
 of the bankrupt ; and in such case, if it be in the name of all 
 the partners, the bankruptcy may be pleaded in bar.(^) 
 
 When a contract is made with the assigness or their agent, 
 after the bankruptcy, they need not sue or declare in the cha- 
 racter of *assignees.(/i) The assignees of J, a bankrupt, and ■* J (J 
 also of 5, a bankrupt, under separate commissions, cannot re- 
 cover a jovit debt due from the defendant to both the bank- 
 rupts, and also separate debts due to each ;(z) but where the 
 j)laintiffs sued as assignees of .'^ and B, and also as assignees of 
 C, for a joint demand due to the three bankrupts, the decla- 
 ration was held sufficient. (A) 
 
 (a) 7 T. R. 182. (/) 7 East, .'IS. 8 T. R. 140. 1 Esp. 
 
 (h) 8 T. K. 140. 7 East, 53. 2 H. Bl. Rep. 140. 170. Peake, I40. Cullen, 
 
 308. 444. 7 T. R. 259. 13 Eliz. c. 7. 412 to 41G. 
 
 5 Geo. II. c. 30. CuUcn, 175. 3 B. & (^) 12 Mod. 446. 8 T. R. 140. 
 
 P. 467. 40. (Ji) Covp. 569. 1 Esp. Rep. 342. 
 
 (0 5 Geo. II. c. 50. s. 30, 31 . (0 3 T. R. 4.33. 3 B. &. P. 467. 
 
 Id) 5 East, 407. {k) 3 T. R. 779. 3 13. & P. 409. 
 
 (<?) 2 Wils. 372. 3 T. R. 437 7 
 East, 64.
 
 16 OF THE PARTIES TO THE ACTION 
 
 / Plainiiffs. The legal interest in the chose in actioji of the wife of the 
 bankrupt is vested in the assignee. (/) When a bankrupt, prior 
 to his bankruptcy, has duly assigned his beneficial interest in a 
 chose in actio?i to a third person, the action must be in the name 
 of the bankrupt, and not of the assignees.(7«) A bankrupt cannot 
 niaintain an action against his assignees for his allowance un- 
 der the statute (?i) 
 
 rthly. Til the Xhe legal interest of an insolvent debtor in a contract is, by 
 
 i-HSt* ot Hii in- 
 solvent debt- the express provision of the different insolvent acts, vested in 
 
 the persons to whom his estate is assigned by the clerk of the 
 peace, and who are expressly empowered to sue.(o) The de- 
 cisions relative to a suit in the name of the assignees of a bank- 
 rupt, are in general applicable to the case of the assignees of 
 -^ 17 ^^' insolvent debtor. The assignees of a person *discharged 
 
 under the lords' act are also authorised to sue.(/2) 
 Sdilv. Til case A feme covert cannot in any case, sue alone, unless her hus- 
 j^„^. (",'\*" band be civiliter morluus, or transported for some crime.(r) 
 She ?nai/ in all cases join in action with her husband, when the 
 cause of action would burvive to her ; or when she is the me- 
 ritorious cause of action, and there has been an express con- 
 tract with her ; and she ?nust join when the cause of action 
 would necessarily survive to her. 
 
 As chosen in action of the wife do not by the marriage vest 
 absolutely in the husband until he reduce them into possession, 
 in general he cannot sue alone, but must join with his wife in all 
 actions ui)on bonds, and other personal contracts, made with 
 the wife bvfure the marriage, whether the breach Avas before or 
 during the coverture, and also for rent or any other cause of 
 action accruing before the marriage, in respect of the real cs- 
 
 (/) 3 Vcz. J. 019. 1 P. Wms. 2-i9. cicnt ; for the legality of a ni.'\rriage 
 
 (?h) 3 B. k P. 40. 3 East, 317. An- caiiuol he tried in personal actions, ex- 
 
 te, 10. cept for Crim. Con. as it may in aw 
 
 (h.) 5 Geo. II. c. 30. 1 Esp. I?ep. 390. appeal and in real actions. Andr. 
 
 (o) 41 Geo. IJl. c. 70. s. 15. 44 Geo. 'Ill, S.Doug. 174. 
 
 m. c. 108. 3 B. k P. 326. 2 li. Bl. (r) 4 T. K. 3Cl. 2 B. k P. 105. 4 
 
 5G1. 2 East, 2.57. Esp. liep. 27. Cro. Jac. 319. 145. 
 
 ip) 32 Geo. II. c. 28. .Se.lwyn, X. P. 237 to 241. Bac. Abr 
 
 {(j) A muniaijc t/e fi-i-ct') i:< suffi- Bar. 8c Ecnjc, M.
 
 IX FORIM EX CONTRACTU . 17 
 
 tutc of the wife.(«) There are indeed decisions and opinions 1. Plaintiffs. 
 which appear to militate against this rule ;(?) but the current 
 of authorities seems fully to establish it, and it is observable 
 that it prevails also in equity ;(w) and that the rule is the *same ^ 18 
 
 when the action is brought on a contract made by a/cme whilst 
 sole, in which case the husband cannot be sued alone. (") And 
 when the wife is executrix or administratrix, as her interest is 
 in autre droit, they must in general join in the aclion.(<zy) 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 of some new consideration, as forbearance, &c. 
 ■make a parol promise to the husband and wife, they may join, 
 or the husband may sue alone upon such new contract ;(x) and 
 iif such bond or parol promise were made to the husband 
 alone, he alone should sue thereon, the wife not being privy to 
 the contract,(j/) or he should join with the wife on the original 
 contract in cases where it is not merged by a higher security ; 
 and the rule is the same when the J'crnc is executrix or admi- 
 nistratrix, though in the latter case it is said, that it should be 
 averred in the declaration that she is still living.(r) 
 
 In general, the wife cannot join in any action upon a contract 
 made during the marriage, as for her work and labour, goods 
 sold, or money lent by her during that time ;(a) for the hus- 
 band 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 * } 9 
 
 sold. (6) But when the wife can be considered as the merito- 
 rious cause of action, as if a bond or other contract under seal be 
 made to her separately or with her husband, (c) or in the case of 
 
 (i) 3 T. R. G31. 027, 8. Com. Dig. {x) 4 T. R. 616. 1 Salk. 117. 3 Lev. 
 
 Bar. &c Feme, V. Bac. Abr. Bar. k 403. Carth. 462. Ld. Raym. 368. Al- 
 
 Feme, K. Moor, 422. 1 Roll. Abr. leyn, 36. Cro. Eliz. 61. 
 
 437. R. pi. 3. 2Ves. 676, 7. Bull. X. Q') Cro. Jac. 110. Yelv. 84. Lord 
 
 P. 179. lOVes. J. 578. 3 Mod. 186. Raym. 368. Salk. 117. Cartli. 462. 
 
 2 Wils. 423. 1 H. B. 109. 1 Saund. 210. 
 
 (0 3Lev. 403. Schv. X. P. 247. Co. (r) Cro. .lac. 110. Yelv. 84. Salk. 
 
 Lit. 351. a. n. 2. 7 T. R. 349. 1 117. Lord Raym. 368. 4 T. R. Gl6. 
 
 Vern. 396. • {,-) 2 Bl. Rep. 1239. 1 Salk. 114. 
 
 (m) 2 Freem. 160. Bac. Abr. Bar. k Com. Dig. Bar. k Feme, W. 
 
 Feme,K. (i) Id. ibid. Cro. Jac. 644. 2 Wils. 
 
 00 7 T. R. 34S. 424. 2 Bl. Rep. 1237. Carth. 251. 
 
 (vw) Viii. Abr. Bar. & Feme, Q, 22. (c) 1 Stra. 230. 4 T. R. 616. Co. 
 
 Com. Dig. Bar. & Feme, V. Lil. 351. a. n. 1. 1 Wils. 224. Sel- 
 
 wyii's N. P. 246, 7. Alieyu, 36.
 
 19 OF THE PARTIES TO THE ACTION 
 
 /. riamtij.'i- her personal labour, &c. if there be an ex/iress promise to her, 
 or to her and lier husband, she may join with the husband, or he 
 may sue alone ;(<:/) and it has been holde^ that she may be joiu- 
 
 , cd in all cases upon an express promise to her :(e) and a feme 
 
 covert executrix must join in an action upon any implied pro- 
 mise 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 co- 
 verture, in which case the h\isband cannot sue alone in asstanfi- 
 sit as for money had and received to his use, but he and his wife 
 must join, and declare in the character of executrix,(y) though 
 we have seen that he may sue alone upon an express contract 
 made with him in consideration of forbearance, Scc.(5") For rent 
 or other cause of action accruing during the marriage on a lease 
 or demise, or other contract relating to the land, or other real 
 property of the wife, whether such contract were made before or 
 during the coverture, the husband and wife may join, or he may 
 
 V-. g/v s^''^ alone ;(/.) and when a lease for years has been *granted to 
 
 husband and wife, and the lessor evicts them, they may join, or 
 the husband may sue alone ;(/0 and in all actions for a profit, &c 
 accruing during coverture in right of the rra/ estate of the wife, 
 they may join, or the husband may sue alone, as in debt for not 
 setting out tithes payable to the wife.(/) But in these, and indeed 
 in all cases, if the wife be joined in the action, her interest must 
 be expressly stated in the declaration, and cannot be intended. (Ar) 
 TI'iC efTcct 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 she would have had no 
 interest//) In the case of the cizil death of the husband, or even 
 
 (f/) Aileyii, 3C. 1 Saik. 114. 1 II. (/,) Stra. 230. 1 Wils. 224. 2 Lev. 
 
 B. lOS. 114. 2 B). Rep. 1237, 8,9, 107. Com. Dig. Bar. S« Feme, X. V. 
 
 1240. 2 Wils. 424. Com. Dig;. Ear. {h) Bro. Abr. Bar. & Feme, pi. 25. 
 
 & Feme, X. Sehvyii's N. P. 243. n. 2 Mod. 217. Cro. Jac. 599. Bulstr. 
 
 11.246. ' 1G3. 
 
 (e) Cro. El. Gl. Bae. Abr. Bar. k (/) Com. Dig;. Bar. & Feme, X. 2 
 
 Feme, K. Wils. 423, 4. Cro. Jac. 399. Bulstr. 
 
 (/) 1 Salk. 2S2. Com Dig. Bar 162. 
 
 &; Feme, V. i<i W. (k) 2 Bl. Rep. 123G. 
 
 is) \\\U\ IS (/) Co. Lit. 351. a. n. 1. Cro Tao. 77 
 
 205. 2 Bl. Rep. 1236.
 
 IN FORM EX CONTRACTU. SO 
 
 where he has been transported for a term of years, the wife may ^ Plaintiffs 
 sue alone upon any contract made with her during that time, 
 even though the term of transportation may ha^-e expired, 
 if he have not returned to this country. (m) But in the case of a 
 feme sole trader, according to the custom of London^ she can only 
 sue and be sued in the city courts, and the husband must be join- 
 ed for conformity. (n) 
 
 If the husband survive/yo) there is a material *distinction be- ^21 
 
 tween chattels real and c/ioses in action. The husband is enti- 
 tled to the chattel real by survivorship, and to all rent, &c. ac- 
 cruing during the coverture ; he is also entitled to all chattels 
 given to the wife during the coverture in her own right,(/0 
 though not to her rights in autre droit.(rj) And choses in action, 
 or contracts made with the wife before coverture, except arrears 
 of rent,(r) do not survive to the husband, and he must, to recover 
 the same, sue as administrator of his wife.(s) And if pending 
 an action by husband and wife for such chose in action., the wife 
 die, the suit abates, but if they obtain judgment, he may, notwith- 
 standing her subsequent death, issue execution, or support an 
 action of debt on such judgment.(0 
 
 If the ivife survive, she is entitled to all chattels real which 
 her husband had in her right, and w hich he did not dispose of in 
 his life-time, and to arrears of rent. See. becoming due during the 
 coverture, and to all arrears of rent and other choses in action to 
 which she was entitled before the coverture, and which the hus- 
 band did not reduce into actual possession, and even to a debt due 
 upon a judgment recovered by husband and Avife, whether ob- 
 tained for a debt due to the wife whilst sole,(20 or upon a contract 
 made *with the wife during coverture where she is the merito- ^ 2:2 
 
 (»0 4 Esp. Rop. 2r. 2 B. & p. (<?) Id. ibid. 4 T. R. 616. 1 RoH. 
 
 105. Sclwvn's N. P. 23-to24l. Abr. 889. pi. 10. 1 And. 2'2. Dver, 
 
 (w) 1 B. bt P. 98. 4 T. R. 361. 331. a. 
 
 (o) As to the effect of survivorship (r) 32 H. VIII. p. 3" s. 3. 
 
 ill general, between baron and feme, (.s) Cora. Dig. Bar. k Feme, E. 3. 
 
 see Bac. Abr. tit. Executors k Ad- 2 Bl. Com. 435. 3 Mod. 186. Ves. 
 
 ministrators, H. 4. 2 BI. Com. 233 676. R. T. Talb. 173. 
 
 to 236. Co. Lit. 351. n. I. Com. (0 3 Mod. 189. n. g. h. 
 
 Dig. Bar. k Ferae, F. 1. E. 2, 3. Z. (;/) Com. Dig. Bar. k Feme, F. 1. 
 
 ('3 A.) 2BI. Com. 434. Ves. 676. 1 Vern. 
 
 (/*) Com. Dig. Bar. k Feme, E. 2, 396. 
 3. Z. 2 Bl. Cora. 424. Co. Lit. 561, 
 a. n. 1.
 
 22 OP THE PARTIES TO THE ACTION 
 
 /. Pluintiffs. nous cause of action, (t;') and to all rights of action in autre droit 
 as executrix or administratrix ;(x) and in these cases if the hus- 
 band die pending the suit, it will not abate, and the wife may pro- 
 ceed to judgment and execution, the death of the husband being 
 suggested upon the record. (,y) And when -a feme executrix 
 marries a debtor to the testator, the right of action is only sus- 
 pended during the coverture, and if she survive she may in her 
 character of executrix sue the executors of the husband. (z) 
 
 The consequences of a mistake in the proper parties in the 
 case of baron andyi??^^, are that when a married woman ought 
 to join with her husband, and sues alone, the objection can only 
 be pleaded in abatement, and not in bar, though the husband 
 might sustaina writof error ;(a) and if she marry pending the 
 suit, her coverture must be pleaded /jm/s darrein continuance ;(i) 
 but when 2, feme improperly sues alone, having no legal right of 
 action whatever, she will be nonsuited ;(c) or if she improperly 
 join in an action with her husband, who ought to sue alone, the 
 plainiiff may demur,((/) or the judgment will be arrested,(c) or 
 reversed on a writ of error.Cy ) And if the husband sue alone, 
 when the wife ought to be joined cither in her own right, or in 
 
 * 23 autre droits *he will be nonsuited \{g) or if the objection appear 
 
 on record, it will be fatal in arrest of judgment or on error, (//) 
 
 n. 
 
 Defendants. The action upon an exfiress contract, must m general 
 
 tJeeiAhc 0^7'- be brought against the party who made it either in person or 
 ginal parties ; |^ aeent ;f /") but difficulties frcquentlv occur in regard to im- 
 
 and with refe- / f^ '\ y i - ^ 
 
 rence to the fiUcd contracts which are created by law in respect of the ex- 
 
 ff i^%o tic ^g.^j^^ ^|g|^^ ^^ duty; in these, the action should be against the 
 
 person who is subject to the legal liability ;{k) therefore in an 
 
 (w) 2B1. Rep. 1239. Cro. .Tan. 77. (f) 4 T. R. 361. 
 
 205. Co. Lit. 351. a. n. I. 1 Vcni. (J) 1 Salk. 114. 1 Hen. Bl. 108. 
 
 396. 2 Wils. 424. 
 
 {x) 4 T. R. 616. Com. Dig. Bar. (<-) Cro. Jac. 644. 
 
 & Feme, F. 1. (/) 2 Bl. Rep. 1236. 
 
 ()/) 8 ami 9 W. TIL c. U. s. 7. R. {g) 1 Salk. '282. Bac. Ab. B: .-. & 
 
 T. Hardw. '5'i7 to 5?9. Feme, K. 
 
 (:) Cro. Eliz. 114. (A) 1 Stra. 229. Cro. Jac. 442. 
 
 («) 3 T. R. 631. (0 8 East, 12. 
 
 (0) Bac. Abr. Abatement, G. \k) 2 H. Bl. 563. 1 H. Bl. 93.
 
 IN FORM EX COXTRACTU. 23 
 
 action against a captain of a troop, for goods furiushed to ihe // 
 
 men during the time of his absence, and whilst another officer ■''' 
 was in the actual command of it, and by whom the orders for 
 subsistence were issued, and who received the subsistence mo- 
 ney from government, it was decided that the defendant being 
 under no legal liability, and not having made any express con- 
 tract, was not liable to the action, though he was still entitled to 
 a profit upon the sum issued by government on account of the 
 subsistence money, and though the troop still continued under 
 his military orders. (/) And though the owner of a ship is liable 
 for repairs ordei-ed for him, or for liis benefit, by his captain, yet 
 where the legal title to a ship remained for a month after the 
 sale thereof in the vendor, and during that time the captain by 
 the direction *of the purchaser ordered repairs, it was decided * 24 
 
 that the vendor was not liable for the amount.(»z) 
 
 When a person has contracted in the capacity of an c^^Jit, Against 
 
 . . agents. 
 
 and that circumstance is known at the tmie to the person with 
 "whom he contracted, such agent is not in general liable to an 
 action for the nonperformance of the contract, even for a de- 
 ceitful warranty,(70 if he had authority from his principal to 
 make the contract ;(o) and when an attorney for and on the behalf 
 o^ his client promises to pay money, he is not personally liable 
 if he had authority from his client. (/;) But if an agent cove- 
 nant under seal for the act of another, though he describe him- 
 self in the deed as contracting for and on the part and behalf ot 
 such other person,((7) or if he accept a bill of exchange ge- 
 nerally, and not as agent, (r) he is personally liable and may be 
 sued, unless in the case of an agent contracting on the behuli 
 of government. (s) So if a person acting as agent do not dis- 
 close his principal, at the time of making the contract, he will 
 be persoiially responsible ;(0 and a master of a ship is in gene- 
 ral liable for necessaries furnished abroad, (w) or in this country, 
 
 (I) 1 Ez^t, 1.55. ru9. S East, 10. (p) 3 P. Wms. 277. 
 
 (m) S East, 10. (</) 5 Eust, 148. 
 
 (») 3 P. Wms. 27^, 9. 1 1$1. R. (r) Stra. 9.55. I H. & P. .368. 
 
 070. 2L(1. Rayr.i. 1210. Cowp. 505. (v) I T. R. 17-2. 074. 1 East, 135. 
 
 Kurr. 1986. 1 T. R. 181. C/4. 4 T. 582. 
 
 R. 553. Peake, C. N. P. 120. Bac (0 Ptakc, C. X. P. 120. 1 T. R 
 
 Abr. Action on c;.sc, B. Abbott, 1st 181. 7 T. R. 350. Biirr. 1921. 
 
 edit. 229. 1 East, 507. (ji) Ctv.i>. 039. 7 T. U. 312. 
 
 (o) 3 P. Wms. 279. 
 
 Vol. I. [ 3 ]
 
 24 OF THE PARTIES TO THE ACTION 
 
 JI- unless thev were furnished upon the credit of the owners,(«>) 
 
 Defendants ' i , -n r *i j- 
 
 * QC and he or the owners may be sued upon the bill ot *laaing, or 
 
 generally for the loss of goods ',{x) and a policy broker alone 
 can be sued for the premiums of insurance. (y) There is also 
 a material distinction between an action against an agent for the 
 recovery of damages, for the nonperformance 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 there- 
 to, and has not paid it over, an action may be sustained against 
 the agent to recover the money, and the mere passing of such 
 money in account with his principal, without any new credit 
 given to him, is not equivalent to a payment of the money to the 
 principal ; but in general, if the money be paid over before no- 
 tice to retain it, the agent is not liable, (2) except in the case of 
 an auctioner or stake-holder, who are considered as trustees for 
 both parties, and are bound to retain the money till one of them 
 be clearly entitled to receive it : and if he unduly pay it over to 
 either party not entitled to it, he will be liable to repay the de- 
 posit or stakc.(G) 
 Partners, to- At law onc partner or tenant in common cannot in general 
 mo'i)^ &c^*^'^ s^'C ^^^^ copartner, or cotenant in any action in form ex con~ 
 tractu^{b) but must proceed by action of account,(c) or by bill 
 -^ Qfi i" equity ; a rule 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 confidence 
 reposed by the parties in each other, of their being examined 
 upon oath, which can only be effected in a court of equity. 
 Therefoi-e in the case of a partnership, one partner cannot at 
 law recover a sum of money received by the other on account 
 of the firm, unless, on a balance struck, that sum is found to be 
 due to him alone. (rf) And in assiimfuit by three persons 
 against Z), as one of the indorsers of a promissory note, drawn 
 
 (w) Abbott, 1st edit. 95. (a) Burr. 2639. 
 
 (x) Cwtli. 58. Bac. Abr. tit. Ac- {b) 2 T. R. 4r8. 2 B. & P. 124. 
 
 tioiis, B. 4 East, 144. 4 Esp. Rep. 182. 
 
 {y) 1 M.irsball, 204. (f) Bac. Abr. tit. Account. Vvllks.. 
 
 (:) Covp. 565. Burr. 198C. Lord 208. 
 
 Raym. 1210. 4 T. R. 553. Stra. (J)2T. R.478. 
 480. Bull. N. P. 133. 10 Mod. 23.
 
 IN FORM EX CONTRACTU. 
 
 26 
 
 by £, in favour of one of the plaintiffs, and the defendant and I^ 
 
 vit, then in partnership, and by them indorsed to the plaintiffs, a '?^'"""'^' 
 plea in bar that C, one of the plaintiffs, is liable as an indorser, 
 together with the defendant, was held good on special demur- 
 rer ;(c) 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.(/) But if one of two or more 
 partners expressly covenant or agree to account, Sec. and neg- 
 lect to do so, an action may be supported by the others ;(,§•) and 
 if an account be stated, and one partner expressly promise to 
 pay the balance appearing to be due to the other, the latter may 
 sue at law ;(A) and in the case of a personal chattel, or of trees 
 severed from the land, if one of two or more joint-tenants or 
 tenants in common, by the sale thereof, convert the thing into 
 money, the *joint interest is determined, and each hath a sepa- ?^ 27 
 
 rate interest for a sum certain, and may support money had and 
 received against the other ;(/) and one partner may maintain 
 an action for money had and received against the other part- 
 ner, for money received to the separate use of the former, 
 and wrongfully carried to the partnership account ;(<-) and a 
 partner may recover money paid to his copartner for the pur- 
 pose of being paid over, as the plaintiff's liquiddted share of a 
 debt to their joint creditor, if it be not so applied, and the plain- 
 tiff be obliged to pay such joint creditor :(/) so one of several 
 co-sureties in a bond, who has been obliged to pay more than 
 his proportion, may recover against any one of the others his 
 proportion of the money paid under the bond ;(m) and unless 
 there be a partnership, one of several parties interested in pro- 
 fits may in general proceed at law against a person who has re- 
 ceived his share : thus, if a sailor engage on a whaling voyage, 
 and is to receive a certain proportion of the profits of the voy- 
 age in lieu of wages, when the cargo is sold, he may maintain 
 ■m action for his wages against the captain, and shall not be con- 
 sidered as a partner \(n) and when the agreement between two 
 does not constitute a paitnership as between themsehes, but 
 
 (e) 2 R. k P. 120. {k) 2 T. R. 476. 
 
 (/) '2 B. & P. 124. n. c. 1 Wcntv. (/) 1 E:ist, 20. 
 17, 18. {m) 2 B. &c P. 258. 270. 8 T R 
 
 (5-) 2 T. R. 482. 7 Mod. 11 G. C14. 
 
 (A) 2 T. R. 482, 3. 47R. (;i) 4 E^p Rrp IS? 
 
 CQ 1 Wille.s, 209. 8 T. R. 146.
 
 27 OF THE PARTIES TO THE ACTION 
 
 ft- only an agi-eement in favour of one as a compensation for trouble 
 
 Defendants- i v , ~ , • , 
 
 * ';og ''^^^ credit, he *may sue the other, though as between third per- 
 
 sons both might be liable as partners. (o) 
 2aiy. With When there are several parties, if their contract wcvc joint 
 
 \hv^mmiber oi ^^^>' '-^^lould be made dcfcndants,(/i) as if one of them be dead 
 the derend- jt is more proper to stale in the declaration that the contract was 
 
 ants, ;ind who \ * 
 
 m.vsr be jolii- made by him as well as by the survivors ;(</) it seems, however, 
 that no advantage can be taken, though the declaration do not no- 
 tice the deceased. (r) 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 ;(s) but if ji lease for years to B and C, rendering rent, and 
 C assign ins moiety to D, A may sue B and D jointly or se- 
 vci'uily, at his election, for rent in arrear :{t) and where two se- 
 veral 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 cer- 
 tain 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 promi- 
 sed jointly as well as severally, Avhich made each of them liable 
 
 * 29 ^'-^^' ^'^^ ^'"^ °^ ^'^^ *other.(zO Parceners should before par- 
 
 tition be jointly sued, though they be entitled to the estate by 
 different descents. (ly) 
 
 With respect to the mode of taking advantage of the omis- 
 sion of a party who ought to be made a codefendant, there is a 
 material distinction betvveen this case, and that of coplaintiffs. 
 
 (o) 4 East, 144. sIicm when Hie action shoukl be joint 
 
 {p) I Suund. 153. n. 1. 291. b. n. 4. or several. To state all the cases up- 
 
 {q) 1 Saiinil. 291. n. 2. Stales, 50. on this subject, would be to investi- 
 G T. R. 3G5. 2 T. R. 477, 8. See the gate the nature and properties of con- 
 form, vol. 2. 4". tracts, a pui-suit foreign to this trea- 
 
 (r) Comb. 383. 5 Esp. Rep. 31. 1 tisc. As to when a contract is joint 
 
 T. R. 479. Vin. Abr. Partner, D. and when several, see Bac. Abr. tit. 
 
 ace. G T. K. 365. 2 :VIod. 280. Obligation, vol. 5. D. 4. &c vol. 7. Obli- 
 
 Montr. gatioH, Bl. And as to what constitutes 
 
 (.t) 1 H. Bl. 236. a partnership, see 1 H. Bl. Z7. 2 H. 
 
 (0 Palmer, 283. 2 Vin. Abr. 6C, 7. 131. 236. 4 T. R. 720. 4 East, 144. 
 
 2 Saand. 182. n. I. Cro. Jac. 411. {-iu) Vin. Abr. tit. Actions, Joinder, 
 
 (;■■) 7 T. R. 352. 2 Saund. Gl. li. n. D. d. Parceners. R, T. Hardw. 
 
 9. These instances AviU suffice to 598, 9.
 
 IN FORM EX CONTRACTU. 29 
 
 \Vc have seen that if a person Avho oueht to join as plaintiff be „ ^^J- 
 
 * DefendaniS. 
 
 omitted and the objection appear upon the pleadings, the de- 
 fendant 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, except in the case of co-executors or co-adminislra- 
 tors, will be nonsuited.(a:) But in the case of defendants, if a 
 party be omitted, whether he be sued upon a personal contract, 
 or as pernor of the profits of a real estate, as indebt for a rent- 
 charge,(i/) the objection can only be taken by plea in abatement 
 verified by affidavit,(2) unless it appear on the face of the decla- 
 ration, or some other pleading of the plaintiff, that the party 
 omitted is still livingy as well as that he jointly contracted, in 
 which case the defendant may demur, or move in arrest of judg- 
 ment, or sustain a *writ of error.(a) There is, however, this ob- ^ ^ 
 jection in tliC case of a joint contract to the non-joinderof one or 
 more of the several parties liable ; that if judgment be obtain- 
 ed against one, in a separate action against him on such con- 
 tract, the plaintiff cannot afterwards proceed against the parties 
 omitted, and consequently loses their security. (^) 
 
 When the contract is several, as well as joint, the plaintiff is 
 at liberty to proceed against the parties jointly, or each sepa- 
 rately, though their interest be joint.(c) 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, (rf) 
 though if two only be improperly sued, the objection must be 
 taken by plea in abatement ;(e) and where parties are sued se- 
 parately, the breach may be assigned in both,(/) and a reco- 
 very, and execution against the body of one, producing no ac- 
 
 (x) Ante, 7. and note g. 313. 6 Enst, S5. 1 Saund. 235. a. n-. 
 
 (,(/) 1 Saund. 284. n. 4. 8. Rut this seems an exception. 
 
 (r) 1 Saund. 154. n. 1. 201. b. n. 4. (b) Ci-o. Jac. 73, 4. Com. Di- 
 ke. 5T. R.C51. 1 East, 20. 4 T. Action, K. 4. 
 R. 725. 2B1.R. 947. (c) 1 Saund. 153. n. 1. 2 Burr. 
 
 («) 1 Saund. 291. b. Sec. n. 4. 154. 12!.'0. Poph. ICI. 
 
 u. 1. 1 B. k P. 73. 7 T. I?. 590, 7. {d) 3 T. R. 782. Bac. Abr. Obli- 
 
 In general a pei-son is presumed to be gallon, D. 4. 1 Saund. 291. e. 2 Yin 
 
 living until it be proved that he is Abr. OS. pi. 7. 
 
 dead, unless several years have elap- (<?) 1 Saun<!. 201. e. 
 
 sed .since he was heard of, 2 East, {/) 1 Str. 553. GRurr. lJ/5
 
 I'lijini. 
 
 30 OF THE PARTIES TO THE ACTION 
 
 JDeftdants ^"'^^ satisfaction, will be no bar to an action against the other %{g) 
 and when the contract is joint and several, and the debt or de- 
 mand considerable, it is most advisable to proceed separately ; 
 for if all the parties be joined, and one of them die after judg- 
 
 •* 31 ment, and before *execution, the remedy at law against the as- 
 
 sets of the deceased is determined ;(/i) and in the case of the 
 death of a surety, even a court of equity will not in all cases re- 
 lieve ;(2) whereas, if the plaintiff proceed separately, the exe- 
 cutor of the deceased, as well as the survivor, severally con- 
 tinue liable. (A) 
 
 Who jrimj be It has already been 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 ;(/) and therefore in an 
 action ex contractu against several, it must appear on the face 
 of the pleadings, that their contract was joint, and that fact 
 •must also be proved on the trial ; and if too many persons be 
 made defendants, and the objection appear on the pleadings, 
 either of the defendants may demur, move in arrest of judg- 
 ment,(?«) or support a writ of error ; and if the objection do 
 not appear upon the pleadings, the plaintiff may be nonsuited 
 upon the trial, if he fail in proving a joint contract '.{n) for 
 though in actions inform ex delicto., as in trespass or case, one 
 defendant may be found guilty, and the other accjuitted ; yet in 
 covenant, debt, or other action mform ex contractu^a. verdict or 
 judgment cannot in general be given in a joint action, against 
 one defendant without the other ;(o) and therefore in an action 
 of assimipsit against three, two only of whom were liable to be 
 sued, *and the party not liable, together with one of those who 
 was liable, suffered judgment by default, and the other party 
 pleaded the general issue, a verdict was found for the defend- 
 ants on the ground that the plaintiff having declared as upon a 
 promise by three defendants, consequently to entitle himself to 
 
 ig) Cro. Jae. 74. 5 Co. 8G. 3 (/.^) 2 Burr. 1100. 
 
 Mod. 87. 2 Shew. 494. (/) Ante, S. 1 East, 226, 7. 
 
 (A) Com. Dig. Action, K. 4. Bac. (m) 7 T. R. 352. 
 
 Abr. ObligaUon, D. 4. vol. 5. & vol. 7. («) I East, 52. 1 Lev. 63. 1 Esp. 
 
 tit. Obligation, B. Rep. 363. Bull. N. P. 129. 1 H. BJ 
 
 (0 W. ibit). d Vez. J. ?P0. 2 Vez. 37. 
 
 S. 106, 171. (o) 1 Lev, CS,
 
 oo 
 
 IN FORM EX CONTRACTU. 52 
 
 recover, he should have proved a promise, either express or ^^- ^^^^ 
 implied, binding all the three :;/0 and where the plaintiff de- 
 clared on a joint and several promissory note, ac^aiiist all the 
 makers jointly, and one of them by his plea, admitted his hand- 
 writing to the note, but the other defendants pleaded non cs- 
 suinfisit^ the plaintiff was nonsuited for not proving the hand- 
 writing of the defendant, who by his plea had so admitted it ;[?) 
 and though a contract be proved to have been in fact made by 
 all the defendants, yet if in point of law it is not obligatory either 
 on the ground of infancy, coverture. Sec. at the time it was 
 entered into, the plaintiff would be nonsuited,(r) and having 
 ommenced his action against too many parties, he could nol 
 :'.void the objection by entering a nolle firosequi as to the infant 
 or fane covcrt,{fi) but must discontinue and commence a fresh 
 action, omitting such parties, and in wliich, should the de- 
 fendants plead the non-joinder of the infant, oy feme covert 
 in abatement, the plaintiff" may reply the infancy or coverture. (if) 
 But when one of the defendants is discharged from lia- 
 bility by matter axibaequent to the making *of the contract, 
 as by his bankruptcy and certificate, the failure on the 
 trial as to him on such ground does not preclude the plain- 
 tiff from recovering against the other parties, and should 
 he plead his certificate, a nolle prosequi as to him may 
 be entered :(//) and in debt on a penal statute at the suit of a 
 common informer, or of the party aggrieved, for an oiTence 
 which may be committed by several jointly, the plaintiff Avill 
 succeed if he prove either of the defendants to be liable, for 
 in this case the action, though in form ex ccniractu^ is founded 
 upon a tort :(%v) so against executors, though the plaintiff may- 
 fail as to one, on the plea of filene adniinistravit, he may re- 
 cover against the other, and the defendant who is acquitted, is 
 not even entitled to costs. (x) 
 
 ip) I East, 5-2. 3 T. R. CG-2. 1 (/) 3 Esp. Rop. 70. Vin. Abr. tit. 
 
 Lev. 63. Actions, Jf>i;i(ler, D. d. ]il. 8. 
 
 (7) 1 Esp. Rep. 1.35. (,/) 1 Wils. 89. 1 Saiind. 20r. a. b 
 
 ()•) 3 E^p. Rep. 76. Vin. Abr. Ac- 3 Esp. Rep. 77. 
 
 tion, D. d. pi. S. (^y) Carth. 361. 2 E.nst, SCD. 1 
 
 (.9) 3 Esp. Rep. 76. 1 Wils. 69. New Rep. 24.S. 3 East, 62. 
 
 Tivid's Prac. 631. (x) Tidd's Prac. 3d edit. 001. 1 
 
 Saund. 207. a.-b.
 
 33 OP THE PARTIES TO THE ACTIOK 
 
 IT. As the consequences of the joinder of too many defen(3ants, 
 
 jtiiic 1 s. -jj ^j^ action in form e.r cmtractu, arc in general so important* 
 it is advisable in cases of doubt as to the proper parties to be 
 made defendants, to frame the declaration, when practicable, 
 in case^ in which form of action, as we shall hereafter see, the 
 joinder of too many defendants, though for the breach of u 
 contract, is in general no ground of objection Uj/) or if the 
 plaintiff be compellable to declare in an action in form ex coit- 
 iractut it is most advisable, in such case of doubt, to proceed 
 only against those defendants who are certainly liable, in which 
 case we have seen the non-joinder can only I)e taken advantage 
 ^' 34 of by a plea in abatement. (z) *On process by bill or latitat in 
 
 K. B. or on common process in C. P. not bailable, the writ may 
 be against four defendants, and the plaintiff may declare and 
 proceed against each separatcly,C«) but on bailable process 
 agauist several, the declaration must be against n\\.(l)) 
 SHly. In case In general in the case of a mere ficrsonal contract, the action 
 credit "^and ^0^' '•^^^ breach of it cannot be broii;j,ht against a person to whom 
 of covenants ^|jg contracting party has assinncd his interest, and the original 
 Innd, iiu. pru'ty alone can be sued : thus if one demise cattle or goods, 
 and the lessee covenant for himself and his assigns, at the end 
 of the term to deliver such cattle or goods, and the lessee as- 
 sign the cattle, Sec. this covenant will not bind the assignee, for 
 it is merely a thing in action in the personalty, and wants such 
 privity as gxists between the lessor and Icosce of lands in re- 
 spect of the reversion ;(f) and if tvvo partners dissolve their 
 partnership, and one of them covenant with the other that he 
 will pay all the debts, a creditor must nevertheless sue both. 
 There may, however, in some cases, be a change of credit^ 
 by agreement between the parties, so as to transfer the liability 
 of the original contracting party to another, or to one only of 
 the original parties ;(t/) thus in the case of a tenancy from year 
 to year, if the landlord accept another person as tenant in the 
 voom of the former tenant, without any surrender in writing, 
 
 (.7/) 3 Ei.st, 62. (r) 3 "Wils. 27. 4 T. R. 720. 726. 
 
 (r) Ante, 29. {d) 1 Xew Rep. 124. 131. 4 Esp, 
 
 (fi) 4 East, 589. IC. & P. 49. Rep. 91, 2. 5 Esp. Rep. 122. ST. K. 
 
 Ti(Ws Prac. 80. 451. 3 East, 147. 
 
 (6) Id. ibid. 5 T. R. 722. Tidd's 
 Prac. 164.
 
 IN FORM EX CONTRACTU. 34 
 
 such acceptance may be a dispensalion of any notice to quit, //. 
 
 ... *, ,• , 1 /- X 1 1 Defendants. 
 
 and the original tenant may *be discharged ;(?) and where two ^ o c 
 
 partners gave a joint bill of exchange for a partnership de- 
 mand, and when the bill became due, the holder took the se- 
 parate bill of one, it was decided that the other was thereby 
 discharged. (y) 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 consequence of which, the principal deals differ- 
 ently with his agent on the faith of such receipt, the principal 
 is discharged, although the security fail, though if the princi- 
 pal were not prejudiced, he would not be discharged.( ^) 
 But where one of three joint covenantors gave a bill of ex- 
 change as a collateral security, not accepted in satisfaction of 
 the debt, the judgment recovered on the bill was decided to be 
 no bar to an action of covenant agdnst the three. (A) The 
 consignor of goods may be primarily liable for the freiglit, but 
 the consignee, 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 con- 
 signor.(2) 
 
 Upon a covenant running with the land which must concern 
 real property, or the estate therein,(A-) the assignee of the 
 lessee is liable to an action for a breach of covenant after the 
 assignment of the estate to him,(/) and though he have not 
 taken possession ;(???) but his liability ceases Avhen he assigns ^ 3Q 
 
 his interest, though even purposely to an insolvent person. (n) 
 And if the covenant be merely collateral and personal, an as- 
 signee is not in any case liable, and the lessee alone can be 
 sued.(o) 
 
 (e) 2 Esp. Rep. 505. (/) Bac. ALr. lit. Covenant, E. 34. 
 
 (/) 4 Esp. Rep. 91, 2. 5 Esp. 3 Wils. 25. 2 Sauiid. 304. u. 12. 
 
 Rep. 122 (m) Woodfall, L. k T. 2d edit 
 
 (5) 3 East, 147. 8T. R. 451. 113. 7T.R.312. ate. Doug. 438. 
 
 (A) 3 East, 251. ST. R. 451. cont. V. 
 
 (0 Abbott, Isl edit. 229. 1 East, («) 1 B. k P. 21. Bac. Abr. tit. 
 
 507. Covenant, E. 4. 
 
 (A) 3 \V;i3. 29. 2 H. Bl. 133. (0) Buc. Abr. tit. Covenant, E. 3, 
 
 4. 3 Wils. 25. 2 Saund, 304. n. 12. 
 
 Vol. I. [ 4 ]
 
 56 OF THE PARTIES TO THE ACTION 
 
 Jt- When there is an ex/:ress covenant in a lease to pay rcftt or 
 
 periorm any other act, the oni;inal lessee, and his personal re- 
 presentatives having assets, are liable to an action of covenant 
 during the lease, notwithstanding before the breach complained 
 of, the interest in the lease may have been assigned, and 
 though the lessee may have become bankrupt, or an insolvent 
 debtor, or the lessor, or the assignee of the reversion may 
 have accepted rent of the assignee. (/j) But an action cannot 
 be supported against those parties for a breach of a covenant 
 implied by law, committed after acceptance of rent from the 
 assignee ;(y) nor can the lessor after such acceptance of the 
 assignee, mamtain an action of debt against the lessee or his 
 representatives even upon an express covenantor) 
 
 An under lessee who has not the whole of the lessee's inte- 
 rest assigned to him, cannot be sued by the original lessor, for 
 any breach of covenant contained in the original leases, though 
 for voluntary and not mere ])ermissive waste, he would be lia- 
 ble to an action on the case.CO 
 ^ 57 *^n ^'i*^ case of a j'jint contract, if one of the parties die, 
 
 4thlv. A\ lien j.jg executor or aduiiiiistrator is at luw discharged from liability, 
 
 One of several , . •' 
 
 olili.aors, Jicc. and the survivor alone can be sued,;M) and if the executor be 
 sued, he may cither plead the survivorship in bar, or give it in 
 evidence under the general issue •■,{nv) but in equity the exe- 
 cutor of the deceased party is liable, unless in some instances 
 of a surety :( i) and if the contract were several^ or joint and 
 several, the executor of the deceased may be sued at law in a 
 separate aclion,(j/) but he cannot be sued jointly with the 
 survivor, because one is to be charged de bonis testatorisy 
 and the other de bonis /!ro/iriis.{z) It is usual though not ne- 
 cessary to declare against the survivor as such, noticing the 
 death of his co-obligee or copartner ;(a) and in an action 
 
 (/'I 1 Siiiind. i2il. n. 5. 1 T. R. 9-'. D. 4. Vin. Abr. Obligation, P. 20. 
 
 r T. K. 3i5. H.Bl. 433. 4 T. K. Carth. 105. 2 Run-. 1196. 
 
 94. 100. But'. Abr. tit. Covenant, ('.(•) 5 East, 201. 
 
 E. 4. (.'■) Bae. Abv. Obligation, vol. 7. 2 
 
 (>7) 1 Saund. 241. b. 4 T. R. 98. Vcni. 277. 3 Vcs. J. 399. 2 Ves. 
 
 1 Sid. 44". Sir Vv'^. Jones, 223. Cio. 106. 
 
 Jae. 5':3. («) 2 Burr. 119D. 
 
 (r)lT. R. 02. iSaund. 2;i.n. 5. (:) Carth. 171. 2 Lev. 228. 2 
 
 (.s) lloUbrd & Hatch, Doug. 183. Vin. Abr. 67. 70. 
 
 (0 -^^i. Rep. 1111. (a) Ante, 12. 1 Saund. 15i. 
 
 («) Bac. Abr. Obligation, vol. 5. 
 
 »s dead.
 
 IN FORM EX CONTRACTU. 37 
 
 ae,ainst such survivor, a demand may be included, though it JJ- 
 
 became due from him smce the death of- his partner ;(Z)) and 
 when the survivor is sued for his own separ;ite debt, lie may- 
 set off a demand due to him as surviving partner. (c) 
 
 When tlic contracting party is dead, his executor or adivi- stlily. In the. 
 
 - . . , , case of execu- 
 
 mstrator, or in a case 01 a joint contract, the executor or ad- lovs en- ad- 
 ministrator of the survivor, is the party to be made defendant ; j«i.'"sf'"'*,^>'"^> 
 
 ^ i J heirs and <ie- 
 
 and covenant lies against executors in every case, though they visets. 
 be not named, unless it be a covenant to *be performed by the "^o 
 
 testator in person, and which consequently the executor could 
 not perform.(c/) If a person intermeddle as executor with the 
 estate of the deceased, he may in general be sued as executor 
 dc son torti although there be a lawful executcr.Ct') and in 
 such case he is uniformly declared against as if he were a law- 
 ful executor, though the party died intestate, and he may be 
 joined in the same action with the lawful executor, though not 
 with the lawful administrator :(/) and if a stranger takeaway 
 the goods of the deceased, if there be no lawful executor, he 
 also is liable to be sued as executor de son tort^ though he claim 
 them as his onvn ;{g) but if there be a lawful executor or ad- 
 ministrator, the stranger cannot be sued as executor de son 
 tort :(Ji) and a person cannot ever be sued as administriitor de 
 son tort. 
 
 If there be several executors, they should all be sued, in 
 case they have all administered, or the defendant may plead the 
 non-joinder in abatement ; but if one have not administered, 
 or if no assets have come to his hands, he may be omitted :(/) 
 though as the plaintiff will succeed if he recover against any 
 one of the defendants, and as the defendant who obtains a ver- 
 dict, will not be entitled to his costs,(/:) and as it may be ad- 
 visable to take judgment of assets quando^ &c. against such 
 defendant, should he plead lilais administravity therefore it is 
 
 (/>) 2 T. R. 4r6. C T. R. 582. vol. (:? ) 5 Co. 33. b. 
 
 2. 4r. kc. (A) 5 Co. 34. a. 
 
 (c) 5 T. R. 493. 1 Esp. Rep. 47. (/) Toller, 307. As to plaintiffs 
 
 (J) 3 Wils. 29. fcxecutors, ante, 13. 
 
 (e) 5Co. 34. a. {h) Tid.l, 901. 1 Saund. 207. a. 
 
 (,/■) 1 Saund. 2G5. n. 2. Com. Dig. Ante, :■>:,. 
 
 tit. Administrator, C. 3, Toller, 
 369.
 
 39* OF THE PARTIES TO THE ACTION 
 
 11. in general, advisable to join all the *clefcndants who may be 
 
 .Deftindanta. j i • • • ■ -n i r- 
 
 named as executors or administrators in the will or letters ot 
 
 administration. If a married woman be execuciix, the husband 
 must be joined in the action ;(/) and an infant sole executor 
 cannot be sued till he be of age,(m) nor can an executor be 
 sued as such for money lent to himj^w) or upon a penal sta- 
 tute. (o) 
 
 If the contract were under seal or of record, the heir of 
 the party contracting is liable to an action for the breach of it> 
 when expressly named in the contract, provided he have legal 
 assets by descent from the obligor.(/!) And if there be a dc- 
 ■viset\ (otherwise tlian for the payment of debts, or in pursuance 
 of a marriage contract entered 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 covenajit cannot in any case be sup- 
 ported agahist a devisee, for a breach of contract in the time of 
 the testator ;( (7) and though the devisee be an infant, he cannot 
 pray the parol to demur by reason of his nonage, such privilege 
 being confined to an infant heir(r) But an cquitj of redemp- 
 tion is not assets at law, in respect of which an heir or devisee 
 is chargeable, but the creditor must proceed in a court of equi- 
 ty. (*) An heir or devisee having a legal estate, are liable to an 
 
 ,, , ,, action *for the breach of a covenant running with the land com- 
 
 ''" 40 ... . . . 
 
 mitted in their own time. ]i 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 abatement ;(0 and a devisee must 
 
 be sued w'lih the heir jointly, at law as well as in equity ;(«) 
 
 (0 Cro. J.ac. 519. 145. Toller, (^) 3 and -i Win. and Mary, c. 14. 
 
 367. Post, 43. Bac. Abr. tit. Heir and Ancestor, F, 
 
 (hi) 3h Geo. til. c. ST. f oiler, 1 P. Wms. 99. 7 East, 128. 
 
 367. (r) 4 East, 4S5. 
 
 («) 1 H. Bl. 109. (s) See post, vol. L'. 159. n. w. 3 
 
 (0) Carth. 361. Cro. Eliz. 766. Saund. 7. n. 4. 
 
 Com. Dig. tit. Administrator, B. 15. (t) 2 Vin. Abr. 67. Com. Dig. tit. 
 
 C/») Bac. Abr. tit Heir and Ances- Abatement, F. 9. 
 
 tor, F. 2 Saund. I.i6. Plowd. 439. («) 2 Saund. 7. n. 4. Bac. Abr- 
 
 Ul. 2 Samul. 7. n. 4. Heir. Vin. Abr. Heir, Z. d. Vol. 2 
 
 iGl.n. b.
 
 IN FORM EX CONTRACTU. 40 
 
 thouc:li an executor cannot in any case be sued iointlv Aviih the ^ J^- 
 
 _ ^ ^ J - J)pfendant!f. 
 
 hc\v.{iv) 
 
 When the contracting party has become a bankrupt, and has (>^^<^h- Jf" th<- 
 
 , , . case of l)anK- 
 
 obtained his certificate, he is in general discharged from all luptoy. 
 debts due at the time of the act of bankruptcy,(.r) and by a 
 recent stalute,(y) from debts due, at the time of the commission ; 
 and a certificate of discharge obtained in a foreign country, is a 
 bar to an action on a contract made there. ^z) But if tlie debt be 
 not then due, or not provable under the commission, or be con- 
 tingent, the bankrupt is not discharged ;(a) and as we have al- 
 ready seen, a lessee is liable for rent, or other breach of cove- 
 nant committed after his bankruptcy, notwithstanding he may 
 have obtained his certificate. (li) And when a debt is barred by 
 tlie certificate, if the bankrupt afterwards promise to pay it, he 
 may be sued ; and it is suflicient in such case to declare upon 
 the original consideration ;(c) and when a party becoiTies bank- 
 rupt after a prior bankruptcy or composition with his creditors, 
 ■*if the estate under the last commission will not pay 15s. in the y. ^| 
 
 pound, the bankrupt may be sued in respect of his future effects, 
 though his person will be protected by his certificate under the 
 last bankruptcy-;(f/) and in cases where the plaintiff has an elec- 
 tion to declare as for a tort, the bankrupt is still liable. (f) V.'here 
 there are several contracting parties, and one of them has be- 
 come bankrujit, and has obtained his certificate, the action should 
 be brought against the solvent partner ; though if it be com- 
 menced against the two, and one of them plead his certificate in 
 bar, a nolle prosequi may be entered ;(/") and if the bankrupt 
 have not obtained his certificate he should be joined. The as- 
 signees of a bankrupt are not personally liable to be sued by any 
 creditor, even in respect of the effects in their hands, but he must 
 prove his debt, and accept the dividend payable to him ; though 
 
 (7t) 18 Edw. m. 4. Com. Dig. {b) 1 Saund. 2il. n. 5. Ante, .-ifi. 
 
 Abatement, F. 10. Yin. Abr. Ac- (c) Peakc, C. N. P. 68. Ccwp. 
 
 tions, C. d. p!. 8. 544. 2 II. Bl. 116. 3B. & P. '250..iu 
 
 (j-) 5 Geo. II. c. 30. s. 7. 'J B. & notes. 
 
 P. 1. 8 T. II. r,8fi. {(l) 5 Geo. II. c. 30. s. 9. 1 B. k 
 
 Of) 46 Geo. III. c. 135. s. 2. and 4. P. 467. 
 
 (r) 5 East, 124. (c) Cullen, 102, 3. 391, 2. 6 T. R. 
 
 (a) Id. il.id. C'uHen, 74. 4 P:a5t, 695. 
 
 43^^ (/)! Wils. 89.
 
 41 OF THE PARTIES TO THE ACTION 
 
 ^I- after a dividend has been declared, an action may be maintained 
 
 Defendants. .... 
 
 agamst the assignees for the creditor's share, as money had and 
 
 received by them for his use \{g) nor can assignees be sued as 
 such for goods sold to theni:(/2) and in the case of a covenant 
 running with the land, if the assignees of a lessee do not take 
 possession of the estate, they will not be liable to the perform- 
 ance of the covenants,(0 and if they take possession, they may 
 nevertheless discharge themselves from future liability by as- 
 signing their interest in the premises even to a pauper ;(A-) and 
 
 ^ 42 ^^^ \\^yc seen *that a bankrupt cannot maintain an action against 
 
 his assignees, for his allowance under the statute 3 Geo. II. c. 
 30.(/) An assignee however who is removed, and has assigned 
 his hiterest to his co-assignees, may be sued by lhem.(7n) 
 
 7ilily. In the ^g far as regards the person of an insolvent debtor, he is by 
 
 case of an in- .... 
 
 solvent debt- his discharge under the respective insolvent debtors' acts pro- 
 tected from liability as to all debts due or growing due on the 
 days mentioned in the respective acts •,{n) but he may be sued 
 in respect of any effects acquired by him since his dis- 
 charge.(o) Where a person has been discharged under the 
 Lord's act., an action of debt on the judgment obtained against 
 him cannot in general be supported, but execution must be 
 issued. (/O If however in either of these cases the debtor, af- 
 ter his discharge, promise to pay the debt, he may be sued and 
 taken in execution upon such new contract, as in the case of a 
 bankrupt, (y) 
 Sthly. In case In general ^feme co-vert cannot be sued alone at law ;(r) and 
 atmani.-igc. ^yi^^.i-| -^ fane sole who has entered into a contract marries,(s) 
 and the husband and wile must in general be jointly sued, 
 though the husband state an account, and expressly promise to 
 
 (5) Bong. 40r. (0) 6 T. R. 366. 8 East, 55, 4i 
 
 (/«) Cowp. 134, 5. Geo. III. c. 108. s. 63. 
 
 (0 7 East, 335, 6. Tefike, C. N. (/>) 32 Geo. II. c. 28. s. 20. 
 
 P. 238. Esp. Rep. 233. 3 H. B. 329. {q) Ante, 40. 
 
 {k) 1 B. Sc P. 21. 00 2 B. & P. 105. 4 T. R. 363, 
 
 (0 1 E?p. Rt'p. 306. (s) A marriage in tact though not 
 
 (7k) Poake, C. N. P. 21 3. strictly legal, is sufficient for this pUr- 
 
 \n) 41 Geo. III. c. 70. s. 34. 38. 44 pose, Andr. 227, 8. Ante, 17. n. f^. 
 
 Geo. III. c. 108. s. 63. 2 East, 148. 
 
 3 B. k P. 394. 8 T. 11. 49.
 
 IN FORM EX CONTRACTU. 42 
 
 pay the debt or perform the contract.^/) But if he in respect JI 
 
 of some new consideration, as for forbearance, &c. expressly 
 undertake to pay the *debt, or perform the contract of ihefcme^ * 43 
 
 he may be sued alone on such undertaking. (?/) And when 
 vent becomes due, or there is a breach of covenant during co- 
 verture upon a lease to the feme whilst sole, the action may be 
 sued against both, or against the luisband alone ;(7y) but the 
 feme can in no case be sued upon a mere personal contract 
 made during coverture,(x) though, after the death of the hus- 
 band, she expressly promise to perform it •,{y) but covenant on 
 the warranty in a fine, or on a covenant running with the land 
 of the wife demised by her during the coverture, may be sup- 
 ported against her ;(z) and it is said that upon a lease to the 
 husband and wife for her benefit, the action may be against 
 both. (a) And if the husband be civiliter mortuus, or even 
 transported for a term of years, the wife may be sued alone 
 upon a contract made by her during that time. (A) In the case 
 of a feme covert executrix or administratrix, she must be join- 
 ed with the husband in an action on any personal contract of 
 the deceased ;(<:) but for rent due during the coverture on a lease 
 which the wife has as executrix, the husband may be sued 
 alone. (f/) 
 
 When the husband survives, he is not liable to be sued in 
 that character for any contract of the feme made before the 
 coverture, unless judgment *had been obtained against him ^ aa 
 
 and his wife before her death, and if she die before judgment 
 the suit will abate ;ie) but if the husband neglect during her 
 life, to reduce her chases in action into possession, the creditor 
 
 (0 7 T. R. 3 is. Allcyn, 72. I («) 1 Roll. Abr.34. 54. SI. 50. Bac. 
 
 Keb. 281. 2 T. R. 480. 3 Mod. 186. Abr. Bar. k Feme, L. 
 
 Bac. Abr. Bar. & Feme, L. {b) I B. & P. 358. n. f. Co. Litt. 
 
 (h) Alleyn, 73. J33. a. 2 B. k P. 105. 4 Esp. Rep. 
 
 (w) G Mod. 239. 1 Roll. Abr, 348. 27, 8. Sehvyn, X. P. 238, 9. 310. 
 
 pi. 45. 50. Thomp. Ent. 117. Com. (c) Cro. Jac. 519. 145. Ante, 39. 
 
 Dig. Bar. & Feme, Y. (c/) Com. Di- Bar. Sc Feme, Y. 
 
 (x) 8 T. R. 54.';. 2 B. & P. 105. Tliomp. Ent. 117. 
 
 Palm. 312. (e) 7 T. R. 350. Cora. Dig. Bar. Jsc 
 
 (i/) I Sua. 94, 5. Feme, 2. C. 3 Mod. 186. R. T 
 
 (r) 2 Saund. 180. d 9. Talb. 173. 3 P. Wms. 410.
 
 44 or THE PARTIES TO THE ACTION 
 
 , ^^- may sue her administrator for debts due before her marrifee ;(/) 
 
 defendants. . , , • ' • , 
 
 ana for rent mcurred durnig the coverture, or upon a judg- 
 ment obtained against husband and wife, in case' of her death, 
 he may be sued alone.(5-) 
 
 In case the wife survive, she may be sued upon all her unsa- 
 tisfied contracts made before coverture ;(A) but the bankruptcy 
 and certificate of the husband will discharge her from all lia- 
 bility to satisfy debts which could have been proved under his 
 commission ; and if the husband and wife be sued jointly, his 
 bankruptcy may be pleaded in bar.(/) 
 
 If the hvisband be sued alone upon the Contract of his wife 
 before coverture, and the objection appear upon the face of the 
 declaration, the defendant may dcmin*, move in arrest of judg- 
 ment, or bring a writ of error ;(A:) and if the contract were 
 misdescrllicd as being that of the husband, the plaintiff would 
 be nonsuited. But if the wife be sued alone upon her contract 
 before marriage, she must plead her coverture in abatement, 
 or bring error coram nobis, and the coverture in such case can- 
 not be pleaded in bar «r given in evidence upon the trial as the 
 * 45 *ground of nonsuit ;(/) and if she marry pending an action 
 
 against her, it will not abate, but the plaintiff may proceed to 
 execution without noticing the husband. (/») But if a fe?ne cO' 
 vert be sued upon her supposed contract made during cover- 
 ture, she may in general plead the coverture in bar, or give it 
 in evidence under the general issue, even in the case of a 
 boi;d.(/i) And if the husband and wife be improperly sued 
 jointly on a contract after marriage, the action will fail as to 
 both.(o) 
 
 (/) oP. Wms. 409. II. T. Tiilb. (0 3T. R. 631. 2 Roll. Rep. 53. 
 
 173. Sty. -'80. Bac. Abr. Bar. & Feme, L. 
 
 (^) 3>ro(l. 189. 11. k. G:Mod.239. (;») 2 Stra. 811. 4 East, 521. Cro. 
 
 Com. Dig. Bar. St Feme, 2. B. Jnc. 323. Bac. Abr. Abatement, G. 
 
 (A) - T. R. 350. («) 12 Mod. 101. 1 Salk. 7. r> 
 
 (01 P. Wms. 249. 2 Yes. 181. Kcb. 228. Bull. N. P. 172. 2 Stra. 
 
 CuUen, 392. 1104. 
 
 {k) 7 T. R. 348. {o) Palm. 312. Ante, 31. 43.
 
 IN FORM EX DELICTO. 4,5 
 
 //. LV .aCTIO.VS LX FORM EX DELICTO. 
 
 The rules -which direct who arc to be the parties to an action 
 in form ex delicto^ whether us plaintiffs or defendants, may, as 
 in actions in form ex- contractu.^ be considered with reference, 
 ist, to the interest of the plaintiff in the mutter afiected, and 
 the liability of the defendant ; 2dly, the number of the parties, 
 and who must or may join or be joined ; Sdly, where there 
 has been an assignment of interest, &c. 4thly, in the case of 
 survivorship ; 5thly, where the paity injured, or committin.5 
 the injury, is dead ; 6thly, in the case of bankruptcy or in- 
 solvency; and 7thly, in that of marriage. 
 
 The action for a tort^ must in general, be brouglit in the / Plaintiff. 
 name of the party whose leifal right has *been attccted ;(/i) 1st. AVitli it- 
 
 . . ' tl-roncc 10 th.ti 
 
 and a cestui que trust or other person having oniy an equitable //j/rrc.vf of tiie 
 interest, cannot in general, sue in the courts of common law, '' ' " j;l . ^ 
 against his trustee, or even a third person, (y) unless in cases 
 whei'e the action is against a wrong-doer, and for an injury to 
 the actual possession of the cestui que trust.(^r) INiany of the 
 rules and instances which have been stated in respect to the 
 person to be made the plaintiff in actions in form <°.r contractu 
 here also govern and are applicable. (.v) Actions in form ex de- 
 licto are for injuries to the absolute or relative rights 01 per- 
 sonsy or to fiersojial or real properly. 
 
 The action for an injury to the absolute rights of persons^ a.s 
 for assaults, batteries, wounding, injuries to tlie health, liberty 
 and reputation, can 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 
 husband may sue alone for injuries w^liich have occasioned loss 
 or deprivation of the society of his wife, or her assistance in 
 his domestic affairs, such as criminal conversation, or violent 
 battery occasioning an illness of the wife for sonie time, or ex- 
 
 (/») 8T. R. 3.30. (»•) I East, 244. '2 Suund. 47 d 
 
 (y) 1 Saiind. oa U. aad T. '2'l'-2, 3. («) Ant--, 3 to J 
 7 T. R. 47. 
 
 Vol. I. [ 5 ]
 
 46 OF THE PARTIES TO THE ACTION 
 
 7. Plaintiffs, pense in her cure ; and in such action the husband may include 
 a demand in trespass or case for an injury to his own person, 
 or to his personal or real property; but if the battery or other 
 act were not sufficiently injurious to prove the allegation /jer 
 fjuod consortium amisit, or that the husband was put to expense, 
 
 ^ A'y he cannot sue alone, but the action niiust be in the *name of 
 
 the Imsband and wife for her personal suffering, and in which 
 case no demand for an injury to the husband, either by loss of 
 the society of his wife, or expense in her cure, injury to her 
 wearing apparel or other cause of action, in which the hus- 
 band alone is in point of law interested, can in strictness be in- 
 cluded. (^) In the case of master and servant, the master may 
 sue alone for the battery, or debauching of his servant, though 
 no relation, when there is evidence to prove a consequent loss 
 of service ;(w) but if there be no evidence of such loss an ac- 
 tion cannot be supported in the name of the master, but the 
 servant must sue alone for the battery ; or where there was a 
 promise of marriage, for the breach of such promise. (■a^) A 
 parent may perhaps sue in that character for the taking away 
 of his child, (x) but he cannot support an action for debauching 
 his daugliter, or beating his child, unless there be evidence to 
 support the allegaiion /ler quod servitiiim amisit.{y) In cases 
 of the battery of the wife, the daughter, or the servant, if 
 there be any evidence sufficient to support an action in the 
 name of the husband, parent or master, it is frequently most 
 advisable to proceed accordingly, because in such action if the 
 plaintiff recover less than 40i'. damages, he will be entitled to 
 full costs.(r) The wife, the child and the servant, having no 
 legal interest in the person or property of the husband, the 
 
 ^ir 48 parent or *master, cannot support an action for any injury to 
 
 them.(a) 
 
 (0 3Bl. Com. 140. 1 Salk. 119. (x) 3Bl.Com. 141. 
 
 00 Peake, C. N. P. 55. 233. 5 \ij) 5 East, 45. 
 
 East, 45. 4r. 3 Bl. CoiTi. 142. 9 Co. (:) 3 Wils. 319. 1 Salk. 206. 2 
 
 113. 10 Co. 330. L(l. Raym. 831. post, 2 vol. ^65. n. n 
 
 (-.y) III. iliicl. 3 Bl. Com. 142. 9 (a) 3 Bl. Com. 143 1 Salk. 119 
 Co. 113. 10 Co. 330.
 
 IN FORM EX DELICTO. 48 
 
 The absolute or general owner of personal property having /■ Plaintiffs. 
 the right of immediate possession, may in general support an 
 action for any injury thereto, though he have never had the 
 actual possession, it being a rule of law that the property in 
 personal chattels draws to it xhe possession. {b) So, though at 
 the time when the injury was committed, the goods were in 
 the actual possession of a servant, carrier or other bailee, yet 
 if the general owner had the right of immediate possession, 
 the action may be in his name,(c) or it may be in the name of 
 the person having actual possession but only a special property, 
 as by a factor, a carrier, a pawnbroker or an agister of cattle, 
 or against a stranger by any person having the actual possession 
 at the time of the injury ;(rf) but a mere servant having only 
 the custody of goods, and not responsible over, cannot in gene- 
 ral sue.(e) And tliough in the above instances the action may ' 
 be brought by the general or special owner of goods against a 
 stranger, yet both actions cannot be supported at the same 
 time, and a judgment obtained by one is a bar to an action by 
 the other.(y) And v. hen the general owner has not the right 
 of immediate possession, as where he has demised goods for 
 a term, he cannot maintain trespass or trover even against a 
 stranger •,{g) though if the injury were sufficient to affect his 
 reversionary *interest, he may support a special action on the * 49 
 
 case ;(A) end a recovery in an action by the party having a pos- 
 sessory interest, would be no bar to an action for an injury to 
 the reversionary interest.(/) A landlord has in legal consider- 
 ation the possession of timber, though not excepted in the 
 lease, so that though it be cut down pending the term, 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.(/-) 
 
 {b) 2 Saund. 47. a. n. 1. 7T. R. (/) ■2. SaunJ. 4r. e. 1 Bulst. 08. 2 
 
 12. 1 Bulst. 68, 9. Vin. Abr. 49. pi. 6. 
 
 (c) 2 Sauiid. 4". b. ' T. R. 12. (?•) / T. R. 9. 3 Lev. 209. 
 
 \d) 2 Saund. 47. b. c. d. 2 Vin (/i) 7 T. R. 9. 3 Lev. 209. 
 
 Abr. 49. (0 3 Lev. 209. 
 
 (e) Owen, 52. 2 Saund 47 a. (A)7T. R. 13. 1 Saund. 322. n. ?. 
 
 b 0. d. Vin Abr Trespass, S. pi. 10,
 
 49 OF THE PARTIES TO THE ACTION 
 
 J. riainttji I'hc person in possession of real /^rojiertij corporeal, whether 
 
 lawlully or not, may sue for an injury committed by a stranger, 
 or by any person who cannot establish a better title ;(/) and in 
 trespass to land, the person actually in possession, though a 
 cestui que trust, should be the plaintiff and not the trustee ; 
 Uiough in ejectment it is otherwise, and the demise must be 
 in the name of the party legally entitled to the possession, 
 aithough the beneficial interest may be in another.(w) In the 
 case of real property, there is not that constructive possession 
 as in that of personalty, and the party entitled to possession 
 cannot maintain trespass, unless he has had actual possession, 
 though he have the freehold in law.(«) A person having the 
 immediate reversion or remainder in fee or in tail or for a less 
 estate, may support an action on the case for waste, &c. inju- 
 * 50 rious to his estate ;(o) but he cannot sue in '•trespass when the 
 
 possession is lawfully in his tenant or other person. (/i) The 
 tenant may support trespass against a stranger for an injury to 
 his possession, and the immediate reversioner may, at the 
 same time, support an action on the case, if the injury were 
 sufficient to prejudice his interest ; and a recovery by one will 
 be no bar to an action by the other.((/) When trees are 
 excejoted in a lease, the lessee has no interest therein, and can- 
 not sue even 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 a particular interest there- 
 in, and may support trespass against the lessor or a stranger 
 for an injury to them during the vSvm : but the interest in the 
 body of the trees remains in the lessor as part of his inherit- 
 ance, and he may support an action on the case agamst a lessee 
 or a stranger for tmy injuiy thereto, or even trover, if they be 
 
 (/) 1 East, 244. Vvllles, 2-21. ;j 4 Burr. 2141. Com. Dig. Action, 
 
 Biiiv. 1563. 2 Stra. 123. Cro. Car. Case, Nuisance. 
 586. Peake, C/. (/*) Id. ibid. 7 T. R. 9. 
 
 («) 7 T. R. 47. 50. \q) 4 Burr. 2141. 3 Lev. 209. 359, 
 
 (») Com. Dig. Trespass-, B. 3. — 360. Com. Dig;. Action, Case, Nui- 
 
 See the next cliapter. sauce, B- 
 
 (*;) 2 Sauud. 25i?. b. 3 Lev. 209.
 
 IN FORM EX DELICTO. 50 
 
 cut down and carried away.(r) Most of these rules prevail i- Plaintiffs. 
 also in the case of an injury to real property 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. com- 
 mon, though his proportion of the damage be found to amount 
 only to a farthing. («) 
 
 *Whcn two or more persons are jointly entitled, or have a * 51 
 
 joint legal interest in the property aficcted, they must in gene- ^''b- ^^J'*} 
 ral join in the action, or the defendant may plead in abatement ; the number of^ 
 and though the interest be several, yet if the wrong complain- 
 ed of be an entire joint damage, the parlies may join in the 
 action J but as the courts will not in one suit take cogni- 
 sance of distinct and separate claims of different persons, 
 therefore where the cause of action as well as the interest is 
 several, each party injured must sue separately. (V) 
 
 Therefore for injuries to the person., several parlies cannot in 
 general sue jointly, as for slander, battery, or false imprison- 
 ment of both, and each must bring a separate action ;(ii) but 
 two partners in trade may join in an action for words spoken of ' 
 them in the way of their trade ;(w) and joint tenants or copar- 
 ceners may join in an action for slander of their title to the es- 
 tate •,{x) and husband and wife may sue jointly for a malicious 
 prosecution and imprisonment of both, or the husband may sue 
 alone ;(v) and it appears to be a general rvile that two persons 
 may join or sever, though their interest be several, if the injury- 
 complained of were a joint damage to both.(z) 
 
 In actions for injuries to personal property., joint tenants and 
 tenants in common must join, or *the defendant may plead in ^ 50 
 
 abatement ;(ti) but parties having several and distinct interests, 
 cannot in general join ; as if the goods of A and -S, the sepa- 
 rate property of each, be unlawfully distrained, they cannot join 
 
 (/•) I Saund. 3'22. n. :>. 7 T. R. 13. (re) 3 R. k P. 150. '2 East, 42G^ 
 Com. Dig. lit. Riens. Ante, 49. (.-•) '2 Sauiul. IIT. a. 
 
 («) 2 East, 154. ^i/) Cro. Car. 553. 
 
 (0 Ante, 8. 1 Saund. 291. g. 2 (r) 2 Saiind. Ufi. a. 3 Lev. 502. 
 
 Sauiid. 116 n. 2. Bac. Abr. Action, (<?) I5ac. Ahr. Joint tenants, K. 7 
 
 C. 2WiIs. 423. T. It. 279. 5 East, 407". Co. Lit 
 
 (?0 2Saund. 117. a. 2 Vin. Abr. 198, a. 
 5i. pi. 29. 3.1. Bac. Abr. Actrous, C.
 
 5^ 
 
 52 OF THE PARTIES TO THE ACTION 
 
 I. Plaintiffs, in replevin •,{b) and an audita querela in the joint names of the 
 conusors of a statute staple, for levying several executions 
 on their lands respectively, cannot be supported ;(c) nor can 
 persons robbed on the highway, join in an action against the 
 hundred, unless they "vvere jointly interested in the proper- 
 ty :(rf) but though the interests be several, yet if the injury oc- 
 casion an entire joint damage to several, they may in some 
 cases join ;(e) as where two persons were severally seised of 
 two ancient mills, at one or other of which the defendant ought 
 to have ground his corn, but neglected to grind at either, it was 
 decided that both might join ;(/) and on the same principle it 
 was holden that the dippers at Tunbridge Wells might join in 
 an action against a person who exercised the business of a 
 dipper, not being duly appointed ;{g) 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 tres- 
 pass, or the one who had actual possession may sue alone.(/i) 
 In actions for injuries to real property, joint-tenanis,(z) and 
 parceners,(A") must join in real *as well as personal actions, or 
 the non-joinder may be pleaded in abatement ; and if one of 
 several joint-tenants die pending a real action it will abate, as 
 the survivor is entitled to a different estate ; but it is other- 
 wise in personal and mixed actions. (/) Tenants in common 
 must in general sever in real actions, unless in a quare imfiedit ; 
 and in ejectment a joint demise would be improper ; but in 
 personal acliuns. as for a trespass or nuisance to their land, they 
 may join, because in these actions though their estates are se- 
 veral, yet the damages survive to all, and it would be unreason- 
 able when the damage is thus entire, to bring several actions 
 for a single trespass :(?«) a tenant in common may however in 
 general sue separately, as in ejectment for his undivided share, 
 or in trespass for the 77icme profits, or in debt for double value 
 
 U>) Co. Lit. 145. b. Abatement, E. 12. 
 
 (t) Cro. Eliz. 473. Xoj-, 1. (j) 2 Vin. Abr. 59. Bac. Abr. Joint- 
 
 {(l) Dyer, 370. 2 Sauud. UG. a. tenants, K. 
 
 377. a. (^") Vin. Abr. tit. Parceners. 
 
 (f) 2 Saund. 115. \l) R. T. Hardw. 398. Co. Lit, 
 
 (/) iSauml. 115, Ifi. 18S. 197. 
 
 {§■) 2 Wils. 423. 2 Saund. llC n. ("A Bac. Abr. tit. Joint-tenants, K. 
 
 2. 2 Bl. Rep. 1077. 5 T. R. 247. Yelv, 
 
 (h) 2 Vin. Abr. 59. Com. Dig. IGl. Cro. Jac. 231.
 
 IN FORM EX DELICTO. 53 
 
 against a person who has held over after the expiration of his /• Phimiffs. 
 tenancy.(n) 
 
 In actions in form ex delicto^ if a party who ought to join be 
 omitted, the objection can only be taken by plea in abatement, 
 or by way of apportionment of the damages on the trial ; and 
 the defendant cannot, as in actions in form ex contractu^ give in 
 evidence the non-joinder, as the ground of nonsuit on the plea 
 of the general issue, or demur, or move in arrest of judgment, 
 or support a writ of error, though it appear upon the face of the 
 declaration, or other pleading of the plaintiffj that there is ano- 
 ther party who ought *to have joined :(o) and if one of seve- ^ 54 
 ral part owners of a chattel sue alone for a tort, and the de- 
 fendant do not plead in abatement, the other part owners may 
 afterwards sue alone for the injury to their undivided shares, 
 and the defendant cannot plead in abatement of such aciion.(/?) 
 If however too many persons be made coplaintiffs, the ob- 
 jection, if it appear on the record, may be taken advantage of 
 either by demui'rer, in arrest of judgment, or by writ of er- 
 ror ;(7) or if the objection do not appear on the face of the 
 pleadings, it would be a ground of nonsuit on the trial, though 
 if two tenants in common join in detinue of charters, it is said 
 if one be nonsuit, the other shall recover.(r) 
 
 We have already seen that chases in action ex contractu^ are Sdly. When 
 
 ^ • 1 • 1 I ^ 1 i II ^1 • the interest iu 
 
 not m general assignable at law, so as to enable the assignee jj^g property 
 to sue in his own name ;(s) the same rule also prevails in the ^^^ ''f'^" "^' 
 
 . signed, 
 
 case of injuries ex delicto either to the person, personal, or 
 
 real property ; and therefore an heir cannot maintain an action 
 for waste committed in the time of his ancestor, nor the 
 grantee of a reversion for waste committed before the grant ;(?) 
 though we have already seen that if a person have the imme- 
 diate reversion or remainder in fee, in tail, or for life, or years, 
 vested in him at the time of the waste committed, he may 
 
 (n) 5 T. R. 248. 2 Bl. Rep. 1077. (g) 3 B. & P. 150. 2 Saund 116. a.. 
 
 (o) 1 Saund. 291. g. 6 T. R. 766. Cro. Eliz. 473. 
 
 7T. R. 279. 2 Saund. 117. 47. g. 1 (r) Co. Lit. 197. b. 
 
 B. & P. 75. 2 B. & P. 123. 5 East, (.s) Ante, 10. 
 
 407. 420. It) 2 Saund. 252. a. n. 7. 2 Inst- 
 
 (/>) 7 T. R. 279. 3 Keb. 244. 5 305. ' 
 East, 407.
 
 55^ OF THE PARTIES TO THE ACTION 
 
 / Plaintiffs, "maintain an action *on the case for such injury to his cstate.(u> 
 
 And a devisee may support an action for the continuance of a 
 
 nuisance erected in the life-time of the testator. (7y) 
 
 4thly. "When When one or more of several parties interested in the pro- 
 one of several .... . . 
 
 parties inter- pei'ty at the time the mjury was committed is dead, the action 
 
 estud IS dead, should be in the name of the survivor, and the e.^ecutor or ad- 
 ministrator 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 objected that 
 the two deceased partners and the plaintiff were joint mer- 
 chants, and consequently that in respect of the lex inercatoria 
 the right of survivorship did not exist, for the legal right of 
 action survives, though the beneficial interest may not.(x) 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 now by the 8 and 9 ]l'm. III. c. 2. s. 7 Xy) 
 it is enacted, that " if there be two or more plaintiffs or dc- 
 " fendants, and one or more of them should die, if the cause 
 " of such action shall survive to the svu'viving plaintiff or plain- 
 " tiffs, or against the surviving defendant or defendants, the 
 " writ or action shall not be thereby abated, but such death be- 
 " ing suggested upon the record, the action shall proceed 
 " at the suit of the surviving plaintiff or plaintiffs against the 
 " surviving defendant or defendants ;" and consequently since 
 
 5(f eg this statute if *one of several plaintiffs die pending a suit, and 
 
 the cause of action would survive to the survivor, he may pro- 
 ceed on the action. 
 
 5tli!v. In case "We have seen that the right of action for the breach of a con- 
 
 ot the death , . . 
 
 of the party tract, upon the death of either party, in general survives to, and 
 '^"'''^' against the executor or administrator of each ;(z) but in the 
 
 case of torts, when the action must be in form ex delicto, for 
 the recovery of damages, and the plea thereto not guilty, the 
 rule at common law was otherwise, it being a maxim that actio 
 ■[lersojialis vioritur cxivi perso7m,{a) and we shall find that the 
 
 (?/) Ante, 49. 2 Saund. 252. b. (:) Ante, 12. 
 
 (w) Cro. Jac. 2,>l. (rt) See the observations on this 
 
 (.r) 1 Show. 18S. Carth. ITO. An- rule in general, .3 Bl. Cora. 302. 1 
 
 te, 11,13. Saund. 210, 17. n. 1. Cowp. 371 to 
 
 ()/) See the ca^^es 2 Saund. "2. i. 377. 3 Woodd. 7.5. Vin. Abr tit, 
 
 R. T. Hardw. 5'J5. Bac. Abr. Joint- E\ecutors,12.3. Com. Di;;. Admiujs- 
 
 tenants, K. trator, B. 13.
 
 IN rORM EX DELICTO. 56 
 
 statute 4 EcIts}. III. c. 7. has altered this rule oii'y in its reh- ^ Plainiijl. 
 tion to /iersonc/ property, and in favour of the personal repre- 
 sentatives of the party injured ; but if the action can be framed 
 in form ex contractu., this rule does not apply. We ^vill consi- 
 der the rule as it now affects actions for injuries to the person, 
 and to j)ersonal and real property. 
 
 In the case of injuries to the person.^ -whether by assault, b.it- 
 tery, false imprisonment, slander, or otherwise, if either the 
 party who received or committed the injury die, no action can 
 be supported either by or against the executors or other per- 
 sonal representatives,(6) for the statute 4 Ed%v. III. c. 7 . hus 
 made no alteration in the common law in this respect.(c) 
 
 At common law in case of injuries to personal *]iroh:'r- * 57 
 
 /y, if either party died, in general no action could be sup- 
 ported, either by or against the personal representatives of 
 the parties, where the action must have been \nforin ex delict f 
 and the plea not guilty ;(<:/) but if any contract can be implied, 
 as if the wrong doer converted the property into money, or if 
 the goods remain in specie in the hands of the executor of the 
 •\vrong doer, at common law assumpsit for money had and re- 
 ceived may be supported by or against the executors in the 
 former case, and trover against the executors in the latter.(e) 
 And now by the statute 4 J£dw. III. c. 7. entitled " Executors 
 " shall have an action of trespass for a wrong done to their tes- 
 " tator," and reciting " that in times past executors have not 
 " had actions 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 trespassers have hitherto remained un- 
 " punished," it is enacted, " that the executors in 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 ;" and this remedy is 
 further extended to executors of executors, (/) and toadmir.is- 
 trators {g) It has been well observed that the taking of goods 
 
 (6) 3 Rl. Com. 502. {p) r>,v.p. .rk Latch. lOS. 
 
 (c) Saund. 2ir. n. 1. Sir AV. ( /) 25 E<Iw. 111. c. 5. 
 Jones, 1/4. l^) 3lEJv. III. c. 11. 
 
 (rf) Cowp. 371 to 3T7. 
 
 Vol. I. [ 6 ]
 
 57 
 
 OF THE PARTIES TO THE ACTION 
 
 I Plaintiffs, and chattels was put in the statute merely as an instance, and 
 not as restrictive to such injuries only, and that the term tres- 
 pass must, with reference to the language of the times when 
 the statute was passed, signify a wrong generally ;(A) and 
 
 * So accordingly the statute *has been construed to extend to every 
 
 description of injury to fursonal property by which it has been 
 rendered less beneficial to the executor, whatever the form of 
 action may be ; so that an executor may support trespass or 
 trover,(/) case for a false return to final process,(^) and case or 
 debt for an escape. Sec. on final process ;(/) and though it has 
 been doubted whether an executor can sue for an escape on 
 mesne process in the life-time of his testator,(m) on principle it 
 appears that he may ;(«) and he may support debt for not setting 
 out tiihes,(o) or debt against an executor, suggesting a devas- 
 tavit in the life -time of the plaintiff 's testator,(/i) or case against 
 the sheriff for removing goods taken in execution, without 
 paying the testator a year's rent ;(y) or an action of ejectment 
 or quare imjiedit^ for the disturbance of the testator.(r) 
 
 But with respect to injuries to real property, if either party 
 die, no action in form ex delicto can be supported either by or 
 against their personal representatives ; and though the statute 
 4 Ed'iiK III. c. 7. might bear a more liberal construction, the 
 decisions have confined its operation to injuries to personal 
 
 * 59 property,(6) *and therefore an executor cannot support an ac- 
 
 tion of trespass qtiare clausum fregit.^ or merely for cutting 
 down trees, or other waste in the life-time of his testator ;(^) 
 and though in Emerson v. Jimerson^iu) it was holden that a de^ 
 
 {h) Owen, 99. 7 East, 134. 6.— 
 11 Vin. 1'25. Latch. 167. 
 
 (/) 1 Latch. 168. 5 Co. 27. a. .Sir 
 W. Jones, 174. 
 
 {k) 4 Mod. 403. 12 Mod. 71. 
 
 (/) Ld. Rayra 973. 
 
 ()«) 1 A\-ntr. 31. 1 Roll. Abr. 912. 
 Latch. 168. Sir W. Jones, 173. 4 
 Mod. 404. Cro. Car. 297. Vin. Abr. 
 Executors, P. pi. 2. ace. Ld. Raym. 
 973. 12 ISIod. 72. 1 Salk. 12. contv. 
 
 (?z) Owen, 99. 7 East, 134. 6. 
 
 (o) 1 Ventr. 30. 1 Salk, 314. 1 
 Sid. 88. 407. 
 
 (/)■) 1 Salk. 314. 
 
 {q) 1 Su-a. 212. 
 
 (r) Vin. Abr. E.\eeutors, P. pi. 
 7. Latch. 168, 9. Sir W. Jones 
 175. Poph. 190. 1 Ventr. 30. 
 
 (i) 1 Saund. 207. n. I. Sir W. 
 Jones, 174. Latch. 169. Vin. Abr. 
 Executors, P. 22. kc. 
 
 (0 SirW. Jones, 174. 1 B. & P. 
 330. n. a. 
 
 {ii) 1 Ventr. 187. 2 Keb. 874. Sir 
 W. Jones, 177. 174. I B. & P. 329.
 
 IN FORM EX DELICTO. 59 
 
 claration by an executor for mowing, cutting down, taking and /■ Plaintiffs. 
 carrying away corn, might be supported, the allegation of the * 
 
 cutting down being considered merely as a description of the 
 manner of taking away the corn, for which an action is sus- 
 tainable by virtue of the statute, yet it was decided that if the 
 declaration had been quare clausum /regit ^ et blada asjiortavit 
 it would have been insufficient ; and that if the defendant had 
 merely cut the corn and let it lie, no action could have been sup- 
 ported by the executor, or if the grass of the testator had been 
 cut and carried away at the same time. We have seen how- 
 ever that an action may be supported by a devisee for the con- 
 tinuance of a nuisance erected in the life-time of the tcs- 
 lator.(w) 
 
 The statutes relating to bankrupts, pass to the assignees all fitWy. In cas6 
 rights of action, real as well as personal, and every species of cv isc. 
 right of which by any possibility profit could be made ; for 
 though rights of action are not assignaljle at common law, and 
 the statutes use the expression, " such right, &c. as the bank- 
 " rupt may lawfully depart withal," yet the policy of the bank- 
 rupt law requires that such rights should be transferred as 
 much as any other *species of property ;(:r) and therefore the ^ /;q 
 
 assignees of a bankrupt may support trover for a conversion be- 
 fore or after the bankruptcy, (?/) or debt to recover from the 
 winner money lost at play, by the bankrupt before his bankrupt* 
 cy.(z) But for torts to the person of the bankrupt which are 
 not the subject of property, as slander, Sec. the assignees can- 
 not sue,(c) and in this case the bankrupt may support the ac- 
 tion ;(6) and he may also sue in trover against a stranger for 
 goods acquired by him after his bankruptcy,(c) and he may 
 support trover or trespass against his assignees if he were not 
 liable to the commission .(c/) 
 
 The wife having no legal interest in the person or property rthly. In case 
 of her husband, cannot in general, join with him in any action "* '"^'■"«S« 
 
 (w) Ante, 55. (a^ Sir W. Jones, 215, Cullen, 
 
 (.r) CuUen, ire. 2 H. Bl. 444. 17' 
 
 iy) Cullen, 4lS, 19, 20. 5 East, (J?) Id. ibid. 
 ^^T"- (c) 7 T. R. 391. Cullen, 414. 
 
 (-) 2 H. Bl. .".-^ {d) 2 Wih. .382. 1 Atk. 102. Cut- 
 
 ten, 412.
 
 60 OF THE PARTIES TO THE ACTIONT 
 
 -' Phunttjs. for an injury th':;reto ;(<*) except in an action for a joint malicious 
 • prosecution of both, in which they may join in respect of the 
 
 injury to both, or the husband may sue alone. (/) 
 
 For injuries to the person, personal, or real property of the 
 wife committed before the marriage, when the cause of action 
 would survive to the wife, she must join in the action, and if 
 she die before judgment therein, it will abate. (,§•) But in de- 
 * 61 tinue to recover personal chattels of the wife, *in the posses- 
 
 sion of the defendant before the marriage, it is said that the 
 husband must sue alone, because the law ti'ansfers the property 
 to him, cind the wife has no interest ;(A) though in detinue for 
 charters of the wife's inheritance they may join, on account of 
 the continuing interest of the wife in the estate to which they 
 rclute.(/) 
 
 When an injury is committed to the person of the Avife 
 during coverture, by battery, slander, Sec. the husband and 
 wife must join, if tlie action be brought for the personal suffei'- 
 ing or injury to the wife, and the declaration ought to conclude 
 to their damage, and not to that of the husbimd alone ; for the 
 damages will survive to the wife if the husband die before they 
 are recovered •,{fc) and care must be taken not to include in the 
 declaration any statement of a cause of action, for which the 
 husband alone ought to sue.(/) If the battery, &c. of the wife 
 deprive the husband for any time of her company or assist- 
 ance, or if she be maliciously indicted, and the husband there- 
 by put to expense, he may sue separately for such consequen- 
 tial injuries,(w) and he may in the same action proceed for a 
 battery or other injury to himself («) And for words spoken 
 
 {e) 3 Rl. Com. 143. Ld. Raym. (k) 1 Sid. 387. Ld. Raym. 120S. 
 
 ItitlS. 2 Wils. 4'.i4. 1 Lev. 140. 1 Com. Dig. Bai-. & Feme, V. Plea- 
 
 Salk. 119. n. b. Sir W. Jones, 440. dor, 2 A. 1. 3 Bl. Com. 140. 1 Salk. 
 
 (/) Cro. Jac. 553. Com. Dig. Uy. Yelv. S9. Freem. 224. 
 
 Bar. Si Feme, X. ' (/) I Salk. 119. Com. Dig. Pleader, 
 
 (g) 3T. K. 627. 631. Com. Dig. 2 A. 1. 
 
 Bar. 8t Feme, V. Roll. Abr. 347. (m) 3 BI. Com. 140. Cm. Jac. 538. 
 
 Pt. pi. .3. 1 Sti ft. Gl. 2 Stra. 977. Cora. Dig 
 
 (/() Bae. Abi'. tit. Detinue, A. — Bar. k Feme, W. 
 
 Bull. X. P. 50. 1 Salk. 114, Sed (w) Cro. Jac. .TOl. 1 Salk. 119 — 
 
 vide R. T. Hardw. 120. Sclwyn, N. P. 242. n, 10. 
 
 (0 1 Roll. Abr. 347. R. pi 1 Bac. 
 Abr. Detinue, . B.
 
 IN FORM EX DELICTO. *62 
 
 of the wife not actionable of themselves, *but which occasion ^ Picumiffx, 
 some special damage to the husband, he must sue alone. (o) 
 
 With respect to personal property when the cause of action 
 had only its inception before the murriuFc, but Its completion 
 afterwards, as in the case of trover before marriage, and con- 
 version during it, or of rent due before marriage, and a rescue 
 afterwards, the husband and wife may join or sever in trover 
 or trespass, (/;) though not in detinue. (^) But when the cause 
 of action has its inception as well as completion after the mar- 
 riage, the husband alone must sue, the legal interest in per- 
 sonalty being vested by the marriage in him ;(r) and therefore 
 a declaration in trover at the suit of husband and wife, should 
 state that the wife was possessed before the marriage, and if 
 it be stated that the husband and wife were possessed, the de- 
 fendant may denuu", for the possession of the wife is in law the 
 possession of the husband, and so is the property ;(s) and 
 the same rule prevails in replevin, though if the husband and 
 wife join therein, and the defendant avow, it will after verdict 
 be intended that the taking was before the coverture, and that 
 the plaintiffs then had a joint property :C0 and though the wife 
 may join in trespass for cutting down com upon her land, yet she 
 cannot *for carrying it away. (m) However^ a. /erne covert exe- * 63 
 
 cutrix may and ought to join with her husband, the declaration, 
 stating that she svies in autre droit.inv^ And there are some 
 cases in which though the produce of the wife's labour, &c. 
 be the property of the husband, yet in respect of her being the 
 meritorious cause of action she may be joined, as in the case 
 of the dippers at Tunbridge Wells. (r) 
 
 (o) 1 Lev. 140. 3 \roJ. 1-23. 1 (.3) 2 Siiund. 47. g. 1 Salk. 114. 
 
 Salk. 119. Com. Dig. Pleader, 2A. 1. 
 
 (/^) '2SaviiKl. 47. g. Salk. 114. 2 (f) R. T. Hartlw. 119. Stra. 1015. 
 
 Lev. lOr. Moor, 422.584. Cfo. Eliz. Com. Dijc. Pleader, 3 K. 10. Selwrn, 
 
 4:>9. Owen, 82. Sclwyn, N. P. 2.50. N. P. 250. 2 New Rep. 405. 
 
 MS. Com. Dig. Bar. is Ferae, X. {n) 2 W lis. 424. Cro. Eliz. 133. 
 
 Bac. Abr. Bar. k Feme, K. Sa!V. 11 9. 
 
 (7) Ante, fjO, 1. Bac. Abr. tit. {-.v) Salk. 114. Wenlw. Ex. 207. 
 
 Detinue. Bull. X. P. 5.3. Bi-o. Bar. k P'eme, pi. S5. Sehvyn, 
 
 (r) U.T. Harchv. 119. 2 Saund. 47. N. P. 250, 1. MS. 
 
 49. Cro. Eliz. 133. Salk. 114. 119. (.r) 2 Wils. 4l4. 424. Com. Dig. 
 
 2 Bl. Rep. 1230. Selwyn, N. P. 244. Bar. St Feme, X- 
 250. MS. 7 Mod. 105
 
 63 OF THE PARTIES TO THE ACTIQN 
 
 /. PUiintiJs. Ill i-eal actions for the rccovety of the land of the wife, and in 
 a writ of waste thereto, the husband and wife must join \(tj) 
 a rule which, wc have seen, obtains also in detinue of char- 
 ters.(r) But when the action is merely for the recovery of 
 damages to the land, or other real property of the wife during 
 the coverture, or for a tort which prejudices a remedy by hus- 
 band and wife, as in the case of quart imfiedit., a rescue, &c. the 
 husband may sue alone,(a) or the wife may be joined,(3) her 
 interest in the land being; stated in the declaration. But a de- 
 mand for removal of personal property, as corn or grass when 
 severed from the land, ought not in the latter case to be in- 
 cluded, because, as we have seen, the entire interest in per- 
 sonalty is vested in the husband.(c) 
 
 •* 64 *^^ '■^^^ husband survive^ he may support an action of tres- 
 
 pass, Sec. for any injury to the land of the wife committed du- 
 ring the coverture,(rf) but not an action merely for the battery 
 of the wife, without staling special damage to himself; and in 
 the latter case, if the wife die pending the action it will abate.((?) 
 If the wife survive, any action for a tort committed to her or to 
 her personal or real property before marriage, or to her per- 
 son or real estate during the coverture, will survive to her ;(J") 
 and she may have an action for a trespass, to her land commit- 
 ted as well in the life-time of her husband, as since his de- 
 cease. (g") 
 
 The consequences of a mistake in the proper parties in the 
 case of husband and wife, may be collected from the prece- 
 ding observations, and seem to be nearly the same in actions in 
 form ex delicto, as in those rx contractu.Qi) If the wife be 
 improperly joined in the action, and the objection appear from 
 the declaration, the defendant may in general demur, move in 
 
 (v) 1 Bulst. 21. 7. H. IV. 15. A. (r) Ante, 62, 3. n. u. 1 Salk. 119. 
 
 3 H. VI. 53. Com. Dig. Bur. k n. b. 
 
 Feme, V. (J) Com. Die-. Bar. k Feme, Z. 
 
 (:)Ante, 61. 1 Roll. Abr. 347. R. (e) Freera. 2'25. Yelv. 89. 
 
 pi. 1. (/) R. T. Hardw. 398, 9. Freem 
 
 (a) Bro. Bar. k Feme, p\ 2S. 41. 224. 
 
 16. Selwyn, X. P. 249. Com. Ui- (^0 Palm. 313. Com. Dig. tit. 
 
 Bar. k Feme, X. Bar. k Feme, 2 A. ' 
 
 (/)) Id. ibid. 2 Wils. 423, 4. 2 Bl. {h) Ante, 22, 3 T. R. 631. 
 Rop. 1236. Cro, Car. 418. 437. Com. 
 Di^. Bar. k Feme, V. X. Pleader, 2 
 A. 1.
 
 IN FORM EX DELICTO. 64 
 
 arrest of judgment, or support a writ of error,(0 though wc I- Plaintiffs. 
 have seen that after verdict the mistake may be aided by in- 
 tendment ;(A-) and if the husband sue alone when the wife 
 ought to join, either in her own right or'in autre droit, he will 
 be nonsuited ; for though in general the non-joinder of plain- 
 tiffs in an action for a tort can only be pleaded in abatement.(/) 
 yet in those cases the party suing had some legal *interest in his *■ 55 
 
 own right, in the property afi'ected, but the husband in the case 
 of the battery, Stc. of his wife has received no personal injury 
 unless a loss of her society or expense ensued. (?«) 
 
 In personal and mixed actions, in form ex delicto^ the person //• 
 
 ... . , , , . ,r u- • • Defendants. 
 
 committmg the mjury either by himselt or his agent, is in ge- As ' between 
 
 neral to be defendant ; but real actions can only be supported ^'^i-tiel'^'^'i'd 
 asrainst the tenant of the freehold. («) All natural persons are ^*'th refer- 
 
 . . . ^ eiice W their 
 
 liable to be sued for their own tortious acts, unconnected with UabiUtij. 
 or in disaffirmance of a contract ; and therefore though an in- 
 fant cannot in general be sued in an action in form ex contrac- 
 tu, unless for necessaries, he is liable fof all torts committed 
 by him, as for slander, assaults, and batteries, &c. ;(c3) 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.(/z) 
 But a plaintiff cannot in general, by changing his form of ac- 
 tion, charge an infant for a breach of contract, as for the neg- 
 ligent or immoderate use of a horse, &c. ;(</) nor can he be a 
 trespasser by prior or subsequent assent, but only by his own 
 act.(r) A married woman is liable for torts actually commit- 
 ted by her, though she cannot be a trespasser by prior or sub- 
 sequent assent ;(s) and though a lunatic is not punishable cri- 
 minally, he is liable to a civil action for any tort he may coiti- 
 
 0) 1 Salk.119.114. 2B1. R. 1236. (o) 8 T. R. 336, T. Bac. Ahr. In- 
 
 Selvvyn, N. P. 244. 250. fancy, H. 
 
 (A?) Ante, 62. (/j) 1 Xew Rep. 140. 
 
 (0 Ante, 53. (ry) 8 T. R. 335. 
 
 (/h) Freem. 225. Yelv. 89. 1 Salk. (r) Co. Lit. 180. b. n. 4. 
 
 119. (i) Id. ibid. Post, 67 
 
 (??) Booth, 3. 28, 9. 3 Lev. 330.
 
 56^ OF THE PARTIES TO THE ACTION 
 
 Jf- \rat.{t) Cor/iorations *may be sued in that character in many 
 instances for damages ansmg from the neglect ot a duty impo- 
 sed on them by particular statutes,(w) but they cannot in gene- 
 ral be sued in that character in trespass or replevin, and the 
 action must be brought against each person who conimit- 
 ted the tort by name.(7y) An action cannot be supported 
 against the inhabitants of a county who are not a corporation, x) 
 nor against a judge, nor a justice of the peace, acting judi- 
 cially, and who has not exceeded his juiisdiction, however er- 
 roneous his decision or malicious his molive,(j/) nor against a 
 juryman,(z) nor the attorney-general,(o} nor a superior naval or 
 iTiilitary ofTicer for any act within the scope uf his authority. (<!i) 
 A cestui que trust cannot in general support any action at law 
 against his trustee foi- any mismanagement of the estate ;(c) 
 nor can one joint-tenc.r.t or tenant in common of a personal 
 chattel, sue his co-tenant at law in trover, or for taking away the 
 eh?tttel ;((/) but for destroying or spoiling it an action may be 
 supported ;(<) and one tenant in common of real property may 
 support ejectment or trespass for mesne profits against his co- 
 tenant, when there has been an actual ouster,(/) or case for 
 waste to the land or trees. (5-) 
 * fi7 *A\\ persons who direct or assist in committing a trespass, or 
 
 the conversion of personal property, are in general liable as 
 principals, though not benefited by the act ;(A) and therefore 
 trover hiay be supported against a person who illegally makes a 
 distress or seizes goods, though the same were taken by him in 
 the character of builiff for another, or as a custom-house officer, 
 
 (?) Hob. 13k 2 East, 10*. Bac. Ahr. {b) 1 T. R. 49.3. 550. 784. 
 Trespass, G. Idiot, E. 2 Roll. Abr. (c) Sa'iiul. on U. hs. T. 222. 
 5-ir. pi. 4. E. (</) 4 East, 121. 2 Saund. 47. f. g;. 
 
 00 2 T. R. 672. 1 T. R. 051. Co. Lit. 100. S T. R. 
 
 \;v) 8 East, 229, 230. Kyd on Corp. 145, G. 1 East, 3G8. Com. Dig. Es- 
 
 225. 22 Ass. pi. G7. Bro. Abr. Tres- tate, K. S. 
 
 pass, pi. 339. ^'iu. Abr. Corpora- (e) Id. ibid. 8 T. R. 145, C. I 
 
 tions, K. pi. 22. P. pi. 2 Q. pi. 15. Ld. R')ym. 737. 739. 
 Bac. Abr. Corporations, E. 2. 5. Dis- (./) 3 A\ils. 118. Run. Eject. 191, 
 
 seisin, B. 1 East, 555. Sic. 443. 
 
 (.r) 2 T. R. 667. 9 Co. 112. b. 11.3. (.?) * ^.ast, 117. 121. Co. Lit. 200. 
 
 ly) 1 Salk. 300, 7. Vau»h. 138. 5 a. 8 T. R. 145, 6. 
 T.R.I 86. 12 Co. 24. Ld. R:.})n. (A) 2 Saund. 47. i. Bui'. N. P. 41- 
 
 466. " 6 T. R. .300. 1 B. k P. 309. 2 Esp 
 
 {z) 1 T. R. 51.3, 14. 535. Rep. 553. 
 
 {a) I T. R. 514. 535. «
 
 IN FORM EX DELICTO. 67 
 
 Sccfi) And where several are concerned, they may be jointly JI- 
 
 , . D-i'i'iulaiih. 
 
 sued, whether they assented to the act betore or alter it was 
 committed, (X.-) vniless the party be an infant ovfcmc covert, wlio 
 we have seen, cannot be sued in respect of a subsequent as- 
 sent,(/) and no person can be guiky of a forcible entry by such 
 assent. (?«) Nor can a pound-keeper be sued merely for re- 
 ceiving into the pound a distress illegally taken. (?z) If, how- 
 ever, 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 sufficient interference to subject him to an action ;(o) so if 
 he be in company with the sheriff's officer at the time of the 
 execution ; {Ji) but the mere act by a stranger of making an 
 inventory or drawing a notice of distress is not such an interfe- 
 rence as will subject him to an action ;((/) and though trespass 
 may be supported against a sheriff for his *buiiilV'b taking the ^ f,g 
 
 goods of J under an excculion against ■S,(r) it cannot aguinsi 
 the plaintiff in the action, unless he actually inlerfered or as- 
 sented to the levy.(.«) 
 
 In some cases a party may be liuble to be sued for a tort, 
 though in fact he neither committed the act, nor assented to 
 the commission of it. Thus a ?naster or /irinci/ial is liable to 
 be sued for injuries occasioned by the iicgUgciice or iinskilful- 
 ness of his servant or agent whilst in the course of his em.ploy, 
 and though the act was obviously tortious, as if he laid lime 
 in the street without any direction for that purpose from the 
 principal :{f) so for the negligent driving of a carriage or na- 
 vigating a ship,(iO or for a libel inserted iu a newspaper of 
 which the defendant was the proprietor ;(to) and the party in 
 a cause is liable for any irregularity in the proceedings of 
 his attorney \{x) and the principal is liable not only for the 
 
 (0 Id. ibid. (i) 3 Wils. 309. 
 
 (A) 2 Bl. Kep. 1053. I Sulk. 409. 2 (s) Id. ibid. 
 
 Roll. 555.1.7. Com. Dig. Trespass, (0 1 East, 106. 2 T[. ]!l. 4^2. 
 
 C. 1. Co. Lit. 180. b. n. 4. Cowp. 3 Wils. 317. 1 B. k P. 4ui. 1 Bl. 
 
 478. 3 Wils. 377. Lane, 90. Com. 431. 2 Lev. 172. Ld. Kaym. 
 
 (0 Co. Lit. 180. b. u. 4. Ante, 05. 739. Dyer, 238. 3 Mod. ,323. 
 
 \m) Id. ibid. (») Li. ibid. 1 E?..st, lOG. 
 
 (,/) Cov. p. 47G. (^0 1 B. 8c P. 409. 
 
 («) Bull. N. P. 41. (.r) 2 Bl Kep. Six 3 Wih. .341 
 
 (J,) I B. k P. 309. 3C8. 
 
 {q) 2 Ksp. Kep. 5.';3 
 
 Vol. I. [ 7 ]
 
 08 OF THE PARTIES TO THE ACTION 
 
 //. acts of those immediately employed by him and by his steward 
 
 Defendants, , , r i r i ■ 
 
 or general agent, but even lor the act ot a sub-agent, however 
 
 remote, if committed in the course of his service. (t/) But a 
 party is not liable for the act of another, unless the latter acted 
 as his servant at the time when the injury was committed ; and 
 therefore a person who hires a post-chaise is not liable for the 
 negligence of the driver, but the action must be against the 
 * 69 *drivcr or the owner of the chaise and horses ;(z) and if a ser- 
 
 vant or agent rjilfully commit an injury to another, though he 
 be at the time engaged in the business of the principal, yet the 
 principal is not in general liable ; as if a servant vjilfuUy drive 
 his master's carriage against another's, or ride or beat a dis- 
 tress taken damage feasmil. {a) However, on piincii)lcs of pub- 
 lic policy, a sheriff is liable civilly for the trespass, extortion or 
 other wilful misconduct of his baiiifr;(('^) and inn-keepers and 
 carriers are in the nature of insurers of the safety of personal 
 property entrusted to their care.(c) 
 
 The distinctions between the different liabilities of the owner 
 of anhnah are important, particularly as they affect the form 
 of the action. The owner of domestic or other animals not 
 necessarily inclined to commit mischief, as dogs, horses, and 
 oxen, is not liable for any injury committed by them to the person 
 or personal property, unless it can be shown that he previously- 
 had notice of the animal's mischievous propensity, or that the 
 injury was attributable to some other neglect on his part, it being 
 in general necessary in an action for an injury committed by 
 such animals to allege and prove the scienter ; and though no^ 
 tice can be proved, yet the action must be case and not ^re«- 
 „ _ pass.{d) But if the owner himself acted illegally, *he may be 
 
 liable even as a trespasser, as where a person m company with 
 his dog trespassed in a close through which there was no foot- 
 path, and the dog, without his concurrence, killed the plain- 
 
 (;/) 1 B. k P. 404. 6 T. R. 41 1. (c) 5 T, II. 273. 1 T. R. 27. 5 T. 
 
 (;) 5 Esi». Rep. 35. ace. 1 B. k R. .JSy. J(/nes on Bailment, 104. 
 
 p. 409. semb. contr. {(I) 12 Mod. 33.3. Ld. Raym. 608^ 
 
 (a) 1 East, 106. 3 Wils. 317. I Dyer, 23. pi. 1G2. Cio. Car. 2.'>4. 2 
 
 Salk. 2S2. 2 Roll. Abr. 553. 1 Bl. Salk. 662. Bac. Abr. Action Case, 
 
 Com. 431. F. Lutw. 90. Peake, L. E. 251, 2, 
 
 (f>) 2 T. R. 154. 3 Wils. 317. 8 Fosl, vol. 2. 238^ 9. 
 T. R.431.
 
 IN FORM EX DELICTO. 70 
 
 t>fT*s tleer.(f ) And if a person let loose or permit a dangerous U- 
 
 1 1 I • , • r , • ,• I 1 Defendants, 
 
 animal to go at large, and mischiet ensue, he is liable as a tres- 
 passer, the law in such cases presuming notice to the defend- 
 ant of the mischievous propensity of such animal. (/) And 
 with respect to animals maiisuetts ?ia£ura, as cows and sheep, 
 as their propensity to rove is notorious, the owner ic bound at 
 all events to confine them on his own land, and if they escape, 
 and commit a trespass on the land of another, unless through 
 the defect of fences which the latter ought to repair, tiie owner 
 is liable to an action of trespass, though he had no notice, in 
 fact, of such propensity. (^) But for damage done by animals, &c. 
 fcra natura- escaping from the land of one person to that of 
 another, as by rabbits, pigeons, &c. no action can be supported, 
 because the instant they escaped from tlie land of the owner^ 
 his property in them was determined ;(/;) and a person cannot 
 be liiible for the act of cattle unless he were the general own- 
 er, or he actually put them into the place where the ii)jury was 
 committed ;Cz) and if a servant or a stranger without the con- 
 currence of the owner, chase or put his cattle into *another*s ^ 7] 
 land, such owner is not liable, but the action must be against 
 the servant or stranger, who, as it has been said, guins a spe- 
 cial property in the cattle for the time (/() 
 
 The liability to an action in respect of real property, may be 
 for misfeasance ov nialfcasarice^ as for obstructing ancient lights j 
 or for noyifeasance^ as for not repairing fences, (/) private 
 \vays,(7M) water-courses, &c. In these cases the action should 
 in general be against the occupier,(n) and not against the own- 
 er, if the premises were in the possession of his tenant, unless 
 hp covenanted to repair :(,o) but if the owner, having erected a 
 nuisance, demise the land, an action may be supported against 
 him, though out of possession, i^or the continuance of it, for by 
 
 (e) 4 Burr. 2(f92. 2LfV. 172. (A) 5 Co. 104. b. Cro. Car. 387 
 
 (/) 3 East, .59.1, 6. 12 Mod. 333. Bun-. 2.i9. Bac. Abr. Game. 
 
 Ld. Haym. 15S3. BidC. Abr. Action («) I Saund. 27. 
 
 Case, F. (/c) Cro. Abr. Trcsp.iss, pi. 435. 
 
 C?) 12 Mod. 335. Ld. Rnym. 606. Roll. Abr. 553. 1 East, 107. 
 
 1583. Dyer, 25. pi. 162. Vi.i. Abr. (/) 4 T. R. .US. 
 
 J'ences. Trespa.ss, B. vol. 20. 124. ("0 3 T. R. 766. 
 
 PopI). 161. Sir W. Jones, 131. Latch. \n) 4 T. I^ 318. 
 
 119. Salk. 602. (o) 1 H. Bl. 55».
 
 71 OF Tlii: PARTIES TO THE ACTION 
 
 'f- llie demise he uffirmecl such continuance ;(/') and every occu- 
 
 l.'c/'cnilaii!^. ... , . „, . I'll 
 
 picr IS liai)le lor the contmnance ot the nuisance on nis land, 
 
 he. though erected by another if he refuse to receive the same- 
 after notice. (7) When there are several ovirners or persons 
 cliargcablc as joint-tenants or tenants in common, in respect 
 of their real property, thoui^h the action be in form ex delicto they 
 should all be made defendants, or the party who is sued alone 
 may plead in abatement. (r) 
 Agnins,t an Jt [y^^^ been decided that trover cannot be supported aeainst a 
 
 -t- 72 servant, for an unlawful int{-rineddling; *\vith the goods of ano- 
 
 ther, l)y the command of his master, unless such intermeddling 
 amount to a trespass, on the ?^round that it would be extremely 
 inconvenient if a servant were bound, before he acted, to ascer- 
 tain his master's right, though it Avas admitted that the com- 
 mand of a master to do an a])parent wrong, would constitute no 
 excuse ;(&) but this doctrine appears to have been overruled, 
 and trover may be supported against a servant or agent, or any 
 other person, who unlawfidiy converts goods to the use of ano- 
 ther,(0 and even against a custom-house officer, who seizes 
 goods in that character ;(iO and replevin or trespass may be 
 supported against the principal, or the bailiff who made the dis- 
 tress by his command ;(to) and it is clear, that a servant cannot 
 plead the command of his master or principal, to what in point 
 of law is a trespass, though he might be ignorant of the me- 
 rits.(x) However, for deceit on the sale of goods, as for a false 
 warranty, in general when the agent acted in pursuance of the 
 direction of his principal, the action must be against the lat- 
 ter ;(v) nor can an action be supported against an attorney for 
 a malicious arrest :(z) and a servant or deputy cannot be charged 
 
 C/0 I Sii'.k. 4G0. 4 T. R. 3':0. ] (-.r) 2 Roll. Ahr. 4.)1. 
 
 B. k F. 409. (x) '2 Mod. 244. .3 Lev. 352. 15 
 
 (q) Com. Dig. Action Case, Nui- "\~iii. xVlir. 316 . 'J Yin. xVbr. CI. [jI. 3, 
 
 sauce, B. J'ust, vol. '2. 333. n. c. 4. 
 
 ■ (r) 1 Sauiul. -m. 5 T. R. 651. (</) Com. Difc. Action Case for De- 
 
 Post, 70. coit, R. Ante, 24. 
 
 (a) 2 :,Io(l. 242. 12 Mod. 4SS. (r) 1 IMod. 2()'.>. Roll. Abr. 05. 
 
 (0 I WJls. 328. 'i Stra. 813. 2 Bac. Abr. Action Case, B. 3 Wils. 
 
 Saund. 47. i. Bac. Abr. Trover, E. 379. 1 Holl. Rep. 4U9. 
 
 (w) 5 Burr. '26:^7. 6 T. R. 300 3 
 Wils. 146.
 
 IN FORM EX DELICTO. 72 
 
 us such, for a mere ?io?ifiasa}ice, but the action must be against ^ J^- 
 
 Defendants. 
 the principal ; (a) but for *?msfeasancc or malfeasance ■, an action * 73 
 
 may be supported against a servant or deputy, though not in that 
 character, but as a wrongdoer Thus if a bailiff" who has a war- 
 rant from the sheriff to execute a writ, suffer his prisoner by 
 neglect to escape, the action should be against the sheriff, and 
 not against the bailiff; but if the bailiff voluntarily Wxxxi the pri- 
 soner loose, the action may be brought against the bailiff, for 
 then he is a kind of wrongdoer or rescuer. (6) In general, how- 
 ever, all actions for breach of duty of the office of sheriff, 8cc. 
 must be brought against the high-sheriff, though for the default 
 of the under-sheriff or bailiff ;(c) and no action is sustainable 
 against an hilermediate agent or steward, for damage occasioned 
 by the negligence of a sub-agent, but the actionmust be against 
 the principal, or the person who actually committed the inju- 
 ry/f/) 
 
 There are some torts which in legal consideration may be sjly. Witli 
 
 , , , , ~ , . , . . . , reference to 
 
 commuted by several, and lor Avhich 'a joint action may be sup- the number of 
 
 ported against all the parties ; but if in legal consideration, several *^'"'' P''"i"^'^- 
 
 cannot concur in the act complained of, se/iarate actions must be 
 
 brought against each ; thus a. joint action may be brought against 
 
 several for a malicious prosecution, an assault and battery, or 
 
 for composing and publishing a libel, (<>) for not setting out 
 
 tithe,(y) or for keeping a dog to kill *game, not being qua- ^^ 74 
 
 lifted ;(§•) but a joint action cannot be supported against two for 
 
 verbal slander, and there ought to be separate actions against 
 
 each ;(/i) 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,(/) or against 
 
 several for bribery, (A-) And if a joint action of trespass be 
 
 («) 12 Mod. 488. Co-^vp. 40,3. (/) Carth. 3G1. 2 \jia. Abr. 70. 
 
 (i) 1-2 Mod. 488. I Mod. '20<J. 1 i>\.^ll. j 
 
 Salk. 18. 1 Ld. Kavm. C.i5. (^) '2 East, 573. 
 
 (r) Cowp. 40.x Latch. ISr. 2 T. (/;) Id. ibid. 2 Wils. 227. Dyer, 
 
 !l. 154. 2 131. Kep. 8,32. 'JU. 2.Mod. I'.l.a. Palm. 313. Cro. Jac. 647* 1 
 
 '■-'• liuM. l.i. 1 Roll. Abr. 7S1. 2 Yin. 
 
 0/)6T. R. 411. 1 B. &c r. 405. Abr. C4. pi. 27. 
 
 !li). Cowp. 40f>. (j) I New Rep. 245. 2 East, 574. 
 
 (c) 2Sam\d. 117. a. LiUch. 262. 2 {k) GriJJith v. Station and others, 
 
 Burr. 985. \\m- \1iv \c-, ions in ge- .Tudgment in Error iti the House of 
 
 neral, ( '. Lords tV' p., llie E.\clieqiier in Ireland, 
 
 irth April, A. U. ISOR.
 
 74 OI^ THE PARTIES TO THE ACTION 
 
 }^ brought as^ainst several persons, the plaintiff cannot declare for 
 
 jiejc'iitliiiiH. 
 
 the assault and battery of one, and for the taking away of goods 
 
 by the others, because these trespasses are of several natures. (/) 
 These rules, however, do not obtain in criminal proceedings so 
 as necessarily to defeat an indictment against several for distinct 
 offences in separate counts, though the court have a discretion- 
 ary power to quash the indictment, where inconvenience might 
 arise from the joinder of many persons for different offences. (m) 
 If several persons be made defendants jointly, where tlic tort 
 could not in point of law be joint, they may demur, and if a ver- 
 dict be taken against all, the judgment may be arrested or re- 
 versed on a writ of error ;(/0 but the objection may be aided by 
 the plaintiff's taking a verdict against one only ;(o) or if several 
 * 75 damages be assessed *against each, by entering a nolle /iroscqui 
 
 as to one after the verdict and before judgment.(/0 In other 
 cases, where in point of law several persons may be jointly 
 guilty of the same offence, the joinder of more persons than 
 wei'e liable in a personal or mixed action in form ex delictOy 
 constitutes no objection, and one of them may be acquitted, 
 and a verdict taken against the others. (ry) On the other hand, 
 if several persons jointly commit a tort, the plaintiff in general 
 has his election to sue all or any of the parties, because a tort 
 is in its nature a separate act of each individual ; and therefore 
 in actions in form ex delicto, such as trespass, trover, or case for 
 walfcasance, 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 regular- 
 ly all the parties inust be joined, and not where the plaintiff may 
 join them all, or not, at his election. (r) And even if it appear 
 from the declaration or other pleadings that the tort was joint- 
 ly committed by the defendant and another person, no objec- 
 
 (/) 2 Saiind. 117. a. Sly. 153, 4. 3 {p) 1 Saimd. 207. a. 
 Esp. Rep. '202. 4. (7) 3 East, 02. 2 East, 674. Bac. 
 
 {m) 8 E.ist, 4f), 7. Ahr. Action of Qui J;ara, D. 2 Roll. 
 
 (7/) 1 New Rep. 245. 2 Saund. 11". Abr. 707. Lane, 19. 59. Cowp. 610 
 b. n. IJac. A!)!-. Actions in general, (?•) Id. ibid. 1 Saimd. 291. d. 5 
 
 C. I Roll. Abr. 7S1. Sty. 349. T. K. 649. 
 
 (0) Id. ibid.
 
 IN FORM EX DELICTO. 75 
 
 lion can be taken. (.v) And this rule ol)tains not only in actions J^ 
 
 " , , jjcfcnditntx. 
 
 Strictly for torts unconnected with contract, but also in actions 
 in form ex delicto, though in effect for the breach of a contract, 
 as in case against bailees for negligence. (^) There is, however, 
 a distinction between *mere personal actions of tort, and such as - ^O 
 
 concern real property ; for if one tenant in common only be 
 sued in trespass, trover, or case for any thing respecting 
 the land held in common, as for not setting out tithe, 8cc. 
 he may plead the tenancy in common in abatement. («) And in 
 an action of debt for money lost at play, the defendant may plead 
 in abatement, that the money was due from others as well as 
 from himself; such action, though given by statute, being 
 founded on contract.(TO) These distinctions between the effect 
 of too many, or too few persons being made defendants in ac- 
 tions in form ex contractu, and in thbse ex delicto, frequently 
 render it advisable to adopt the latter form of action, when it 
 is doubtful who should be made the defendants ; and in an ac- 
 tion on the case, trover, or replevin, no inconvenience can arise, 
 Ijecause if one of the defendants be acquitted, he will not be 
 entitled to costs ;(:r) though in trespass it is otherwise, unless 
 the judge certify that there was reasonable cause for making 
 the acquitted person a defendant.(z/) A recovery against one 
 of several parties lo a joint tort frequently precludes the plain- 
 tiff from proceeding against any other party not included in 
 such action ;(r) thus in an action against one for a battery, or 
 for taking away the plaintiff's posts, or destroying grass in a 
 field where several persons are concerned, the recovery against 
 one will *be a bar to an action against the others ■,{a) and * 77 
 
 where the plaintiff had previously recovered in an action against 
 his servant for quitting his service, it was decided that he could 
 not also support an action agidnst the person for seducing 
 
 (4) 1 Saiind. 291. (^,) 8 k 9 Wm.III. c. 11. TiJd, 
 
 (0 3 East, 02. ace. 1 Saui.d. 291. SOi), 1. 
 
 J. G T. R. .369. couir. (;) Cro. .Tac. 74. Com. Dig;. Ac- 
 
 (») 1 Saund. 291. e. 5 T. R. 051. tion, K. 4. L- 2 B. k P. 70, 1. 1 
 
 7 T. R. 237. Bac. Abr. Jcint-te- Saund. 207. a. 
 
 nants, K. 2 East, 574. («•) Yelv. OS. 2 B. is P. 71. Bull. 
 
 {w) 7 T. R. 2.57. N. P. 20. 
 
 (j-) 2 Slra. 1005. Tidd, 900, 1. 
 KliU:, 33.
 
 n OF THE PARTIES TO THE ACTION 
 
 away such servant ;(/0) and in these cases the court will in ge- 
 neral on a summary application stay the proceedings in the se- 
 cond action, where it is manifest that the entire damages have 
 been recovered in the ftibt (c) But where the evidence and 
 the damages in the two actions miglit be different, as where 
 two persons on different occasions iiave published the same 
 libel, sep.irale actions maybe supported against each.((/) 
 
 3(11}-. Where As in the case of a breach of covenant, so in that of torts^i 
 
 the interest . . . - . . 
 
 has been as- the assignee of an estate is not liable for an injury committed 
 
 si^iiec, ' . [jefore he came to the estate ; but if he conlinuc a nuisance he 
 may be sued for such continuance ;{c) though prior to the ac-, 
 tion, there should in some cases be a request and a neglect to 
 abate the nuisance •(/) and if a tenant for years erect a nui- 
 sance, and make an underlease to B, an action lies against ei- 
 ther ;(§■) and if J take tlije goods of C, and B take them from 
 .'^, C may have his action against ^^or B, at his election. (/;) 
 4tl>ly. In case At common law upon the death of the wrongdoer, the reme- 
 of the -wrong- <^y foi' wrongs ex delicto, and unconnected with contract, in 
 ^^'' general determines; *and as the statute 4 Edw. III. c. 7. does 
 
 * 78 
 
 not give any remedy against personal representatives, we shall 
 find that few actions in form ex delicto, and in which the plea 
 would be not guilty, can be supported against the executor or 
 administrator of the party who committed tlic injury. (0 Many 
 of the preceding observations on the rule actio Jiersonalis ijiorl- 
 tur cum persona, in its relation to the death of plaintiffs, are 
 equally applicable to the case of the death of the wrongdoer. (/.) 
 For injuries to the person, if the wrongdoer die before judg- 
 ment, the remedy determines, and there is no instance of an 
 action having been supported for such injuries, against his per- 
 sonal representatives.cz) In general also no action in form ex 
 delicto, as trover, case, or trespass, can be supported against an 
 executor, for an injury to pcrsoval property, committed by his 
 
 (6) 3 Burr. 13i5. 1 Bl. IJep. oS". (jr) 2 Salk. 4C0. 2 B. k P. 409. 
 
 (c) 2 B. J« P./71. (/') Bmc. Alir. Actions, B. 
 
 (fO 2 B. & P/69. (0 Cowp. 3r4. 3r7. I Saund. 216. 
 
 (<>) Com. I>ig. Action Case, Xui- n.l. 
 
 sance, B. Ihxr, 320. 2 Sa!k. 460. {k) Ante, SG to 59. 
 
 IB. kP.40y". Ante, 71. (/) Cow,,. .375. 1 Sannrl. 216. n 
 
 ( /") Post, vol. 2. 333. n. c. Com. Dig. Administration, B. 15.
 
 IN FORM EX DELICTO. 7g 
 
 testator irm) though if the testator converted the property into -^^• 
 
 ... ... .p Defendants, 
 
 inoney, asaumfisit lies agamst his executor ; or it the property 
 
 c^!me in specie to the possession of the latter, trover woukl be 
 sustainable against him though ndt in the churvicter of execu= 
 tov.{r.) And though we have seen that debt may be supported 
 by an executor for an escape on final process, it cannot against 
 the executor of a sheriff or gaoler ; for though the action is not 
 in form ex delicto., it is considered as founded on a tort, the neg- 
 ligence *of the deceased sheriff ;(o) but where a sheriff has le- * ijc 
 vied money under an execution, and dies before he has paid it 
 over, his executors may be sued either in debt or scire facias 
 upon his return oijierifeciy or by action of assmnfisit, as for mo- 
 ney had and received. (/z) An action cannot be supported against 
 an executor for a penalty forfeited by the testator under a penal 
 statute ;(7) and though it has been hoiden that debt lies against 
 an executor for treble the value of tithes which his testator 
 ought to have sat out, that decision has been doubted. (r) At 
 commonlaw no executor was answerable for a devamavit by his 
 testator ;(s) but by the statute 30 Car. II. c. 7. (explained and 
 made perpetual by 4 and 5 IV. & M. c. 24. s. 12.) "the exe- 
 <' cutors or administrators of any executor or administrator, whe- 
 " ther rightful or of his own wrong, who shall waste or convert 
 " to his own use the estate of his testator or intesiate, sliaU be 
 *' liable and chargcble in the same nunner as their testator or 
 " intestate would have been if they had been living." So that 
 since these statutes, if a judgment be obtained against an execu- 
 tor wiio afterwards dies, an action may now be brought against 
 his executor or administrator upon the judgment, suggesting?, 
 devastavit by the first executor. (^) But it has been considered 
 
 (»?) Cowp. 371. 1 SaUnd. 2l6. a. (5) Cora. Dig. AdmiiiistiMtion, B 
 
 Com. Dig. Admiiiiftration, B. 15. 15. 
 
 (;/) Cowp. 371. 574. 1 Sauiid.'2lG. a. (r) Sir t. Raym. 57. 72. Viii. Abr 
 
 (0) Ante, 58. Dyer, 322. a. Ld. Executors, H. a. pi. '21. 27. Willes, 
 
 IRaym. 973. Com. Dig. Administra- 4'2l. 
 
 tion, B. 15. Yin. Abr. E.\ccutor, H. (s) 3 Leon. 241. t Venfr. 29'2 
 
 a. pi. t. 7. 20. Com. D'::; Administration, B. 15. 
 
 (/)') Cr-o. Car. 533. 2 Show. 79. (0 1 Wits 258. 1 Saund. 21P. c d 
 281. Gilb. Exec. 25. 2 Saund. 343. 
 
 Vol. I. r 8 1
 
 80* OF THE PARTIES TO THE ACTION . 
 
 //. iha' an executor df son. tort of an *execntor dc non tort cannot b« 
 
 Defendants. ■ ■ ■ • r t , , 
 
 sued as su( h h\ virtue ot these statutes. (2/) 
 
 P'or injuries to rtal properly no action in form px delicto can in 
 geiieml be supported against the personal representatives of the 
 vion;j,doer •,(^iv) thoup;h if trees, See. be taken away and sold by the 
 testator, assumpnit for money had and received lies against his 
 executor,(-i^) or trover if they remain in specie, and the executor 
 refuse to restore them,(?/) and a court of equity will frequently 
 afford relief against the executor of the wrongdoer, though at 
 law the action nioritur cum /ier.so!ia ;(z) and therefore where a 
 a tenant for life cut down timber and died, relief was decreed 
 against his executors in favour of the remainderman ;(a) and 
 there is an exception to the common law rule in the case of the 
 executors of a deceased rector or vicar, 8cc. against whom the 
 successor may support an action on the case for waste and dilapi- 
 dations permitted by tlie deceased (b) 
 sthly In the "^ '^^ statute 5 Geo. II. c. 30. only discharges a bankrupt from 
 
 cHse of bank- deljf.Sy and does not protect him fi-om liability to actions for torts; 
 ruptey, Sec. * ^ 
 
 as for assault and buttery, (c) slan(Ier,(rf) trespass for mesne pro- 
 
 fivs.(f) or trover.(./') Sec. unless the damages have been ascertain- 
 
 ^ q, ed by verdict *beforc the bankruptcy ;(/") and when the plaintiff 
 
 has an election to shape his action in different ways, either ex 
 
 contractu OY ex diUcto, if he adopt the latter form of action, the 
 
 certificate will be no bar;(5-) as where the bankrupt unlawfully 
 
 discounted a bill, and embezzled the money, though the plaintiff 
 
 might- have declared against him in assumfisit as for money had 
 
 and received, in which case the certificate would have been a 
 
 bar to the action, yet having declared in trover, it was decided 
 
 that the certificate was no bar.(/;) The same rules affect the 
 
 liability of a person discharged under an insolvent act. 
 
 (?0 Andr. 253. 254. 2 Ventr. .160. Wille.s, 421. 3 Woodd. 20f), 7. 
 
 (w) 7 T. R. 732. 1 Saund. 21 6. n. (c) 3 Wils. 272. 
 
 1. 2 S:iund. 252. a. ii. 7. 3 T. R. {d) 1 H. Bl. 29. 
 
 540. (e) Donj?. 562. 2 T. R. 261. 
 
 (.i) 3 T. R. 549. Cowp. 373, 4. (./") 6 T. R. 695. Doug. 167. 
 
 (v) Co«p. 373, 4. 7T. R. 13. 1 (/) 1 H. 131. 29. Cullen, 1st ed. 
 
 Saund. 21 C. a. 112. 
 
 (r) 3 Atk. 757. 2 Ves. 560. 2 (.§) Cnllen, 1st cd. 391, 2. 
 
 Vtnu-. 360. 3 T. R. 549- (/() 6 T. R. 695. Cullcn, 113. 
 
 (f() 7 T. R. 732. Doug. 167. 7 Vin. 74. 
 
 lb) 3 Lev. 268. 2 T. R. 637.
 
 IN FORM EX DELICTO. 81 
 
 Actions for torts committed by a womtm before her maiiiage IT. 
 
 .,,.., ,.. , r JJefendant^. 
 
 must be against husband and wile |ointlv;(«) and tor torts com- ^ . 
 
 •^ J / ' Gtlily. In the 
 
 mitted by the wife during coverture, as for slander, assaults, ca^e of mar- 
 &c. or for any forfeiture under a penal statute, they must also ^ " 
 be jointly sued ;(/■) and the plaintiff cannot in the same acti<m 
 proceed also for slander, assault, or other tort committed l)y 
 the husb.^nd alone ;(/) nor can the husband and wife be sued 
 jointly for the slander of both.('n) But for assaults or other 
 wrongs, in which two persons may concur, the husband and 
 wife may be sued jointly, for the act of both, and the acquittal 
 of the husband will not preclude the plaintiff from recover- 
 ing.(«) *Detinue, can only be supported against the hus- * 82 
 
 band.(o) But if a woman convert goods before her marriage, 
 or during it, without her husband, trover may be supported 
 against her and her husband ;(//) and for a conversion by hus- 
 band and wife, the action may be against him alone, rj) A/one 
 covert can only be sued for her own actual wrong or trespass, 
 and cannot become a trespasser merely by lier previous or 
 subsequent assent during covertui-e ;Cr) but she may be jointly 
 stied with her husband for enticing awty or harbouiing the 
 servant of another.(s) In an action of trespass. Sec. against 
 husband and wife, for her to?'t before or during coverture, if 
 she die before judgment, the suit will abate ; but if the hus- 
 band die or become bankrupt, her liability will continue. (0 
 
 If the wife be sued alone, for her tort before or after mar- 
 riage, she must plead her coverture in abatement, and cannnt 
 otherwise take advantage of it ;(20 but if the husband and wife 
 be sued jointly for torts of which they could not in law be 
 jointly guilty, us for the slander of both, if the objection ap- 
 pear on the face of the declaration the delendanr may deiniu', 
 move in arrest of judgment, or .support error.(TO) 
 
 (0 Bac. Abr. BiV. k Fe-ne, L. (c/) 1 Leon. ,31 C. B;;c. Abr. dt. 
 
 ik) Id. ibid. 1 Hawk. P. C. 3, 4. Detinue. 
 
 Bac. Abr. Bar. k FeiTio, I. (/>) 2 Saund. i7. h. i. 1 Leon. 312. 
 
 (0 2WiU. ?2r. Dyer, 19. a. pi. Yelv. 165. Stlw yn, N. P. 252. 
 
 112. Com. Dig;. Bar. & Feme, Y. {rj) 2 Si,uii<l. 4r. i. 
 
 (in) Id. ibid. Buc. .\br. Bar. k (>•) 2 Wils. 22". Co. Lit. ISO. b. 
 
 Feme, L. Sclwyn, N. P. 25o. An- u. 4. 35". b. • Ante, 6/'. 
 
 te, '8. 4. (.?) 2 Lev. fi.",. 
 
 («) 1 Ventr. 95. ace. Yelv. 106. (t) U. T. Hardw. rm. Cullen, 392. 
 
 1 Brownl. 209. Com. Dig. Bar. & ('/) Ante, 45. n. 1. 
 
 Feme, Y. contr. (71.) 2 Wils. 227. Dyer, 19. a.
 
 CHAPTER II. 
 
 or THE TORM OF ACflOK, 
 
 J T is a p-eneral principle that if the law confer a rjghty it will 
 also confer a remedy by action. When once the existence of 
 the right is established, the courts will adapt a suitable remedy, 
 except under particular circumstances where there are no legal 
 grounds to proceed upon in a court of law.(x) At a very ear- 
 ly period specific forms of actions were provided for such in- 
 juries, as had then most usually occurred ; and Bracton, ob- 
 serving on the original writs on which our actions are founded, 
 declares them to be fixed and immutable, unless by autliority 
 of parliament. (j/) The ancient forms of actions are collected 
 in Registrum Breviwn, and were termed brevia formata^ and 
 upon which Fitzherbert' h Katura Brevium is a comment. (z) 
 At common 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 v.cre termed jnagistra-' 
 g4 lia ;{a) *but as the officers of the court were found reluctant 
 
 in new cases to frame the proper remedy, the legislature 
 thought fit to enforce the common law, and it was enacted by 
 statute Westminster 2.(c) '' that if it shall fortune in the 
 
 (x) Per Ld. Kenyon, Ch. J. 1 (a) 8 Co. 47. b. 48. a. 2 Bl. Rep. 
 East, 226. 3B1. Com. 123. 1 Salk. 1113. 3 Wootkl. 168. 
 20. 6 Mod. 54. (c) 13 Edw. I. s. 1. c. 24. See ob- 
 
 (t/) 3B1. Com. 117. servations on tliis statute, 3 Bl. Com. 
 
 (r) 3 Bl, Cora. 183, 4 123. 183, 4. 3 Wood. 168. and 
 
 Webb's case, 8 Co. 45. b, to 49. b
 
 OF THE FORM OF ACTION. 84 
 
 *' chancery, that in one case a writ is found, and in like case In Ofticra}. 
 *' falling under like law, and requiring like remedy, is found 
 " none, the clerks of the chancery shall agree in making the 
 " writ ; or adjourn the plaintiffs until the next parliament, and 
 " that the cases be written in which they cannot agree, and 
 " that ihey shall refer such cases, (rf) until the next parliament ; 
 " and by consent of men learned in the law, a writ shcJl be 
 " made, lest it might happen after, that the court should long 
 " lime fail to minister justice unto complainants." To this 
 statute the great encouragement and frequency of actions on 
 the case is attributed ; it has however been observed that it by 
 no means follows, that, because in cases unprovided for by the 
 Register, the statute of Westminster 2. directs an action on 
 the case to be framed, that such action did not subsist at com- 
 mon law.(f) 
 
 Notwithstanding these provisions, it was once thought that 
 the circumstance of an action being of the first impression, and 
 unprecedented, constituted a conclusive objection against it ; 
 but this notion no longer 'prevails, for as we have seen, when- * 85 
 
 ever the common law recognises or creates a legal right, it 
 will also confer a remedy : and Lord Ch. J. 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, for there is nothing in nature that may not be an in- 
 strument of mischief, and the special action on the case was in- 
 troduced, because the law will not suffer an injury without af- 
 fording a remedy, and there must be new facts in every spe- 
 cial action on the case :(.e) and in the case of Pasley v. Free- 
 maiu(^f^ Mr. J. AMmrst observed, that where cases are new 
 in their princi/ile it is necessary to have recourse to legislative 
 interposition in order to remedy the grievance ; but where the 
 case is only new in the i?ista7icc, and the only question is upon 
 the application of a principle recognised by law, to such new 
 case, it will be just as competent to courts of justice to appiv 
 
 (f/) There appcT.rs a mistake in the (f') Willcs, 5SI. 1 East, C2G. Bull, 
 statute book in the translation which N. P. 79. 
 is here corrected. (/) 3 T. R, 63. 
 
 (c) Per Blackstonc, J. 2 Bl. Kcp. 
 1113.
 
 85 OF THE FORM OF ACTION. 
 
 In General the principle to any case which may arise two centuries hence* 
 as it was two centuiies ago However, the novelty of an action 
 may frequently be fairly urged as a strong fireaumfitive argu- 
 ment against it, more particularly where the rights which is 
 the foundation of the action is admitted, but the mode of re- 
 lief is the only matter in controversy .(//) 
 
 When the prescribed form of action is to be found in the 
 
 * 86 Register, the proceedings should not *materially vary from 
 
 it,(z) unless in those cases where another form of action has 
 long been sanctioned by usage ;(/') for ihe courts have con- 
 sidered it of the greatest importance to observe the boundaries 
 of the diflferent actions, not only in respect of their being ntiost 
 logically framed, and best adapted to tlie nature of each par- 
 ticular case, but also in order that causes may not be brought 
 into court confusedly, and ini methodically, and that the record 
 may at once clearly ascertain the matter in dispute ; a regula- 
 tion, which, since the different legislative provisions respecting 
 costs, (the right to which varies in different forms of actions,) 
 has become of still greater importance. (/) 
 
 Actions are from their subject matter distinguished into real^ 
 /icjsojiaf, and mixed.{m) Real actions are for the recovery of 
 real property only, and in which the plaintiff, then called the 
 demandant, claims title to lands, tenements or hereditaments 
 
 (/f) Co. Lit 81. b. n. 2. per Ash- " of actions should be kept distinct." 
 
 hurst, J. 2T. R. 6-3. And in I B. & P. 476. Eyie, C. 
 
 (/) JJac. Abr. Abatement, H. J. observed, that *• undoabtedly we 
 
 {k) Id. ibid. 4 Co. 94. b. 3 " ouo;ht to endeavour to preserve the 
 
 Wood. Vm. Lect. 169. " distinction of actions ; and if it ap- 
 
 (0 Thus ill 6 T. R. 129, 130. Lord "pear upon the pleadings that ac- 
 
 Kenyon, C. J. said, "it is of im- " tions of a different nature have been 
 
 " I)r)rtanee that the boundaries be- " mixed, that is a sufficient ground 
 
 " tween the dilferent actions, should "for arresting the judgment." And 
 
 " be preserved and particularly in in 1 Stra. 635. the C. J. observed, 
 
 " cases of this kind ; for if in an ac- " we must keep up the boundaries of 
 
 " tion of trespass the plaintiff re- " actions, otherwise we shall intro- 
 
 '* cover less than 40s. he is entitled " duee the utmost confusion." See 
 
 "to no more costs than damages, also II Mod. 180. 2 Burr. 1114. 2 
 
 " whereas a verdict with noniiaal da- Saund. 47. b. 2 Tnst. 434. Fitzg. 85. 
 " mages only, in an action on the (w) See the division of actions, 3 
 
 " case carries full costs." And in 1 TJl. Com. 117. Bac. Abr. Actions ia 
 
 H. Bl. 243. Mr. J. Wilson said, "it General, A. 
 " is highly necessary that the forma
 
 OF THE FORM OF ACTION. *87 
 
 in fee-simple, fce-tuil, or for term of life, *such as writs of en- /« Gemral 
 try, right, formedon, clower,(ra) &c. Personal actions are for 
 the recovery of a debt, or damages for the breach of a contract, 
 or specific personal chattel, or a satisfaction in damages for 
 some injury to the person, personal, or real property. In 
 vnxed actions, which partake of the nature of the other two, 
 the plaintiflf proceeds for the recovery of some real property, 
 and also for damages for an injury thereto, as in the instance 
 of an action of ejectment or of waste. I shall confine my ob- 
 servations to such personal and mixed actions as most frequent- 
 ly occur in practice. 
 
 Personal actions are in form ex contractu or ex delicto^ or, 
 in other words, are for breach of contract or for wrongs uncon- 
 nected with contract. Those upon contracts are principally c«- 
 sumfisit, debt, covenant, and detinue ;(o) and those for "wrongs 
 are case, trover, detinue, replevin, and trespass vi et arniis. 
 AVe will take a concise view of the nature and particular ap- 
 plicability of each of these respective remedies, and of the ac- 
 tion of ejectment. 
 
 */. ASSUMPSIT. 
 
 This action is so called from the word assiim/isit, which, 
 when the pleadings were in Latin, was always inserted in the 
 declaration, as descriptive of the defendant's undertaking. (/?) 
 It may be d-Jined 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 nor of record,((7) cir- 
 
 (h) Aa to the various real actions, claration, tliough the prf^mise be 
 
 see Co. Lit. 239. n. 1. r> Bl. Coin, founded on a legial liability, and 
 
 Ch. 10. Bac. Ahr. Actions in Gene- though in evidence it would be im- 
 
 val, A. plied. Bac. Abr. Assumpsit, F. 
 
 (o) The actions of account and an- (g) Contracts are of record, by 
 
 i»nity, though soint times adopted, do specialty, or by parol; the term 
 
 not often occur in practice, and parol, or simpls contract signifies 
 
 therefore I have not obserred upon every contract not under seal nor of 
 
 them. record, whetheT verl«d or written. 7 
 
 (/») The word " undertook,'' T R, 351. 
 uught always to be inserted iii the de- 
 
 * 88 
 
 %
 
 88 OF THE FORM OF ACTION. 
 
 ?'• Assumpsit, cumstances, which distinguish this remedy from others ; iot 
 the action of debt is, in legal consideration, for the recovery of 
 a debt to ?i07nine, and in nuniero, and moat -frequently upon a 
 deed ;(?•) and the action of covenant^ though for the recovery 
 '■ of damages, can only be supported upon a contract under stal. 
 Atinumfmt however is not sustainable- unless there have been 
 an express contruct., or unless the law vili iw/dy a contract- 
 Though founded upon contract^ this action, as distinguishable 
 from the brevia J'orniata, and falling within the provision of 
 the statute of Westminster, may be termed an uction on the 
 case ;(s) it is now however uniformly called an action of us- 
 su?fijiiii(, and when the term ' caac' is adopted in a statute, or 
 otherwise, an action as for a tort, and in loim ex delicto is 
 usually intended, and not an action in iorm ex contractu.^t) 
 
 ■* 89 *'^ minute inciuiry into the hitstory of this action would at this 
 
 time be matter of curiosity, rather than of practical utiiiiy ; 
 the origin and progress of it may be collected from the reports 
 and works referred to in the note ;(m and from which it ap- 
 pears, that till S/ade's casc,(w) a notion prevailed, tiiat on a 
 sin>ple contract for a sum certc^in, or for any money demand, 
 the action must be in debt ; but it was holden in that case that 
 the plaintiff had his election either to bring assum/isit or debt ', 
 however, from the manner in which the statute 3 Jac. 1. c. 
 8. is penned, it is probable the action of as6U7npsit was not then 
 much in use : but afterwards it became very general, (:c) and it 
 is certainly now more frequently adopted for the recovery of 
 money due on a simple contract, than the action of debt. From 
 these cases it also appears,(i/) that though belore Slude'a case, 
 an action on the case might be supported, as well for the 7tcn~ 
 feasance of a contract, as for ivisfcacance or malfeasance in the 
 performance of it, yet from the form of the writ in Fitzher' 
 
 (r) IH. El. 554, 5. 551. Bu!i. N. Vin. Abr.270. Bro. Aljr. Action sur- 
 
 '!>. 1G7. le CHse, 1)1. 7. 69. 72. Fitz.a-. N. B. 
 
 (.v) Bac. Abr. Assumpsit. Gill). C. 94. A. n. a. 145. G. 1 New Rep. 295. 
 
 P. f). 2 Bl. Rep. "850. Bl. Rep. 850, 
 
 (0 7 T. R. 36- C'y) ^ <^o- 9^ ^'^ ^5. 44 Eliz. 
 
 (m) Riuldci- *. Price, 1 Hen. Bl. \J) Per Buller, J. Douji. 6. 
 
 ,'>50 to 555. IJouo;. 6, 7. Sfade's (y) Bro. Abr. tit. Action sur Ic 
 
 cnse, 4 Coke, 91 to 95. 3 Wood. Case, pi. 7. 69. 72. Fitz;^-. N. B. 94. 
 
 ItiS, 9. n. c. Reeves, vol- 3 Si 4. 1 A. l45. G. Bac. Abr. Assumpsit, C- 
 
 ♦
 
 OF THE FORM OF ACTION. 89 
 
 bcrt,{z) it maybe collected that the remedy was not similar to f. jsaumpsit. 
 our present action of assutnjisit, but resembled the present form 
 of a declaration in case for a tort.{a) 
 
 The breach of all /larol or simple contracts, whether verbal » 
 or written, or express or implied, or for *the payment of mo- / * 90 
 
 ney, or for the performance or omission of any other act, is 
 remediable by action of aasumfisit. Thus it lies to recover 
 money lent, paid, and had and received to the use of the plain- 
 tiff; and in some cases, though the money have been received 
 lortiously or by duress of the person or goods, it may be re- 
 covered in this form of action, the law implying a contract in 
 favour of the party entitled ;(6) as against a person who bus 
 usurped an office, and received the known and accustomed 
 fees of office, though mere gratuitous donations cannot be 
 recovered in assum/isit ;(c) and where the goods of a trader 
 after his act of bankruptcy are taken in execution, or otherwise 
 disposed of without the concurrence of the assignees, they may 
 waive the tort, and declare in assu?>i/i&it for money had and re- 
 ceived, if the goods have been sold •,((!) so it lies to recover 
 money paid by a bankrupt by way of fraudulent preference ; but 
 in these cases it is sometimes most advisable to declare m case 
 or trover, in order to avoid a set-off or mutual credit. (e) In 
 some cases also where money has been extorted by duress of 
 goods, it may be recovered back in assum/mt.{f) But the 
 proprietor of cattle wrongfully distrained damage feasant, who 
 has paid money for the purpose of having them *redeiivered to * 91 
 
 him, cannot recover back that money in this action, because 
 such mode of proceeding would impose great difiiculties oi^ 
 the defendant, by not appiisuig liini of what he was to defend ; 
 and the law has provided specific remedies for trying the le- 
 gality of a distress, viz. replevin, trespass, or trover. (5-) So 
 
 (2) Nat. Brev. 9l. A. 3 Woodd. (d) Id. ibid. 2 T. R. 143. S Wil.- 
 169. 2BI. Kcp. 850. 304. 'i 151. Kep. Si,". 
 
 (a) 1 H. Bl. .i.iu, 1. ((') 4T. U. 'ill. 
 
 (A)2Ld. liaym. 1216. 2 Bl. Rep. (/) 2 Stra. 91,7. 4 T. R. 485 — 
 827. 3 Wils. 304. 2T. R. 144.— Buli. N. 1'. 13.'. 
 Cowp. 419. Bull. N. P. 131. 6 T. ( r-) L'o^^p. 414. C T. U. 29S. 
 J{. 095. 2 Slra. 916. 4 T. R. 485. 
 
 (r) 6T. R. 6S1. 2 .Mod. 200. 1 
 T. R. 403. Ld. liavm. 1210. 
 
 Vol. 1. " I 9 ^
 
 91 OF THE FORM OF ACTION. 
 
 / Atsstimpsit. tliis action lies to recover interest, and money due on an account 
 slated, or for services and works of difterent descriptions, or , 
 for the sale, use, or hire of goods or of land, or other per- 
 sonal or real property, and upon bills of exchange, whether 
 foreign or inland, checks on bankers, promissory notes, po- 
 licies of insurance on ships,(/i) or on lives, or against fire, 
 when not under seal. It lies also specially upon wagers,(i) 
 feigned issues,(i(') and awards, where the submission was not 
 by deed :(/) also, to recover money due on by-laws,(/w) fo- 
 reign judgments,(n) or for legacies charged on land,(o) though 
 debt is more usual in the last three instances ; or for a specific 
 legacy after the executor has assented, but not otherwise,(/i) 
 nor for a pecuniary legacy payable out of the general assets of 
 the testator. (<7) It may also be supported for money due for 
 tithes, where there has been an agreement for a composi- 
 tion ;(r) but unless there have been such a composition the 
 
 * 92 only remedy is in a court of equity or *in the Ecclesiastical 
 
 courts, or in debt upon the statute 2 and 3 Echv. VI. c. 13. to 
 recover the treble value of the tithe omitted to be set out, and 
 which act extends only to prandial tithe. (r) Jssufn/isic also lies 
 for the amount of tolls and port dutieSjCs) contributions to party 
 walls, (0 or canal calls,(w) or on promises to pay money in con- 
 sideration of forbearance to sue the defendant or a third per- 
 son, (w) or in consideration of services or works done, or goods 
 sold to the defendant, or a third person at the defendant's re- 
 quest ;(jr) and upon contracts to guaranty,(.y) indemnify,(r) 
 
 (A) Post, vol. 2. 71 to 7J. 'nUic, Y. 1>. d. II ,11. N. P. 188 to 
 
 . (i) Post, vol. 'i. 75 to 77. lyi. 
 
 (h) Post, vol. '2. 77 to 70. (;■) Post, vol. 2. 185. Btill. N. P. 
 
 (0 Post, vol. 2. 79 to 82. 188. 
 
 (•») 1 B. k P. 08. (.v) Post, vol. 2. 13 to IG. 
 
 (;;) Uoug. 1, 4 T. R. -103. 3 {() 14 (i. III. c. 78. 5 T. R. IjO. 
 
 Kasr, 221. 8 1". K. 214. 1 B, k P. 303. 
 
 (0) 2 Salk. 415. 6 Mod. 27. Ld. («) 7 T. R. 30. 
 
 Raym. 937. (-.y) Post, vol. 2. 82 to 84. 
 
 (/>) 3 East, 120. 4 Esp. Rop. 154. (.r) Post, vol. 3. 85 to 88. 
 
 Cowp. 289. (i/) 1 Saund. 211. a. 5 East, JO. 
 
 (5) Id. ibid. 5 T. R. 692. Peake, (;-) Post, vol. 2. SS. 3 Wils. 262 
 
 73.- 7 T. R. 667. 1 H. Bl. 108. 3 East, 169. 2 T. K. 105. 9B.h 
 
 (r) Post, vol. 3. 18. Bac. Abr. tit. V. 98. 2Ga. 
 
 ♦ 
 
 4t
 
 OF THE FORM OF ACTION. 92 
 
 i:mploy,(fl) or to serve and perform workS;((!') and against at- / Asmmput. 
 lornies and solicitor5,(c) wharfin|5ers,(f/) surgeons, (c) inn- 
 keepers,(/) carriers and other bailees, (5-) for neglect or 
 other breach of duty. Assum/isit is also the proper remedy for 
 a breach of a promise to marry ;(A) and against a vendor for 
 not delivering goods bought,(?) or against the vendee for not 
 accepting goods sold,(^) or for not delivering a bill of ex- 
 change in payment for the same ;(/) upon an express war- 
 ranty of the goodness *or quality of any personal chattel, * 93 
 either on the sale or exchange thereof,(»z) or upon an express 
 or implied warranty, as to the property therein ;(7z) and by and 
 against vendors and purchasers for not completing a contract of 
 sale.(o) So where there has been an express agreement not under 
 seal between landlord and tenant, or where the law implies a 
 contract on the part of the latter to manage the farm in a hus- 
 bandlike manner, this action may be sustained for the breach 
 of such contract ;(/i) though, where the tenant has been guilty 
 of voluntaiy waste, it is usual to declare in case, unless there 
 be also a money demand, which might be included in a declara- " 
 tion in asaiunjtsit.^cj) And by the express provision of 1 1 
 Geo. II. c. 19. s. 15. the executor of a tenant for life may, in 
 this action, recover a proportion of rent up to the day of his 
 testator's death. 
 
 The action oi assuni/isit, is in general the only remedy against Wlicn ihc pe- 
 an executor or administrator, for the breach of a contract not Ij"**^^ reme 
 under seal,(r) and for the recovery of money payable by in- 
 stalments, where the whole debt is not due ;(6) for (unlesal 
 
 («) Post, vol. 2. 9-2. 2 East, 145. (ft) PosV, vol. 2. 100 to 10.3. 
 
 4Ksp. Rep. rr. Cowp. 43r. (?))Post, vol. 2. ino. n. I. 2 Bl 
 
 (6) Post, vol. 2. 93 to 97. 5 T. R. C. 451. 3 Id. 160. Cro. Jac. 474. 1 
 
 143. Roll. Abr. 90. 
 
 (c) Post, vol. 2. OCi. (o) Post, vol. 2. 125 to 133. 
 
 ((/) 7 T. R. 171. Post, vol. 2. 111. (p) Post, vol. 2. 133. n. u. to 140. ? 
 
 (f ) I Saund. 312. n. 2. 2 Wils. T R. 373. I East, 154. 1 H. Bl 
 
 859. 99. 
 
 (/) S Co. 32. 5 T. R. 273. (7) Id. ibid. 3 East, 70. 
 
 (5) Post, vol. 2: 103 to V23. (r) 1 Xew Rep. 29.5. 9 Co. 8(5. b. 
 
 (A) Post, vol. 2. S9 to 92. (s) 1 11. Bl. 547. Cro. Jac. 504. 2 
 
 (0 Post, vol. 2. 99. Saund. .303. n. 6. 337. 350. 374. Pitzf^ 
 
 (/;■) Post, vol. 2. 97 to 99. 302. Com Di- \c;ion, F 3 Co 
 
 (/) Post, vol. 2. 8." 4 East. 147 22. ». 
 
 3B. ScP. 382, V.
 
 93 OF THE FOR-M OF ACTION. 
 
 1. As^uinjmt. m the courl of exchecjucr, in which wager of Ui-,v is not allow- 
 ed) (/) debt is not in t;eneral sustainable against ap executor, nor 
 -^■1* can that action be *supported, unless the whole debt be due ;(u) 
 
 also where the simple contract was for the payment of the debt 
 of a third person, or collateral, as debt is not Sustainable, a.v- 
 nuin/isil is the only form of action ;(w) as at the suit of the 
 payee or indorsee of a bill of exchange against the acceptor, or 
 of the indorsee of a promissory note against the maker ;(x) 
 and on an award to p/erforni any act, except to pay money, as- 
 .•avn/inic is the only remedy, unless the submission were by 
 bondjCz/) and formerly it was thought that in an action of debt 
 on simple contract, the precise sum stated to be due in the de- 
 claration, must be recovered, or that the plaintifl' would be non- 
 suited ;(r) and therefore at that time it was usual, when the 
 amount of the debt was uncertain, to declare in assiimjisit ; but 
 as this notion no longer 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 material in this re- 
 * spect, whether the plaintiff declare in annumjisit or debt. (a) 
 
 When It tlocs When a party has a security of a higher nature, he must 
 not lie. . ... 
 
 found his action (hereon, and as the law has prescribed differ- 
 ent forins of action on different securities, assum/isit cannot in 
 general be supported when there has been an express contract 
 under seal or of record, but the party must proceed in debt or 
 covenant where the contract is under seal, or in debt or scire 
 facias if it be of record, even though the debtor, after such con- 
 * 95 :'i^£(||^tract were made, *expressly promised to perform it.(6) But if 
 the deed be only executed by the plaintiff and not by the de- 
 fendant, the action must be assumpsit ;(c) and if there be an 
 agreement by deed to let a house by words not amounting to 
 an actual demise, the party may maintain assumjisit for use and 
 
 CO 3 Bl. Com. r)47. 9 Co. 8S. a. {z) 3 Bl. Com. 1.55. 
 
 (7/) 1 H. Rl. .552. (a) 1 H. Bl. 249. 550. Doug. 6. 
 
 (w) HiU-ilw. 486. Com. Dig. Debt, 752. 
 
 B. 2 Ld. Uaj m. 1040. 2 Saund. 62. ((^) 1 Roll. Abr. 11. 517. «Cro. Jac. 
 
 b. ' 506. 598. Cowp. 129. 2 Stra. 1027". 
 
 {x) 2 B. k P. 78.- and Chitty on Bull. X. P. 128. 2 T. R. 105. Hut- 
 Bills, 2d ed. .Wo, 4. ton, 34. 1 Vin. Abr. 278. pi. 20. 1 
 
 (i/) 2 Sauud. (>2. b. n. 5. New Rep. lOS. 1 T. R. 104, 5. 
 
 (c) 3 Esp. Rep. 42. 
 .4
 
 Of the form of action. 95 
 
 ©ccupaiion ;(rf) and where on the separation of a husband and ■'• -isaumpsif. 
 uifc, he covenanted by deed with a trustee, to pay an allow- 
 ance for her separate maintenance, but made default, and the 
 trustee provided the wife with necessaries, it was decided that 
 he might support assumfitit on the common law obligation ;(e) 
 and if the contract under seal be invalid, and there be any evi- 
 dence upon which an implied contract can be raised, assumfisii 
 may in some cases be supported ;{f) as where an annuity deed 
 has been set aside, for some defect in the memorial, 8cc.(5") 
 and where a feme covert, without authority from her husband, 
 contracted with a servant by deed, the service having been per- 
 formed, it was decided, that the servant might maintain assuni/i' 
 dt against the husband ;(/() and where in respect of a nenv con- 
 iideration, there has been a nenv contract, to i)ay a debt, or per- 
 form a contract under seal, assum^isit may be supported ; as on 
 a promise to an assignee of a bond, to pay him in consideration 
 of forbearance; {i) or on a promise by an heir, having assets by 
 descent, to pay the debt of *his ancestor for the same consider- ^ 96 
 
 ation ;(A') or by the debtor himself, in respect of any new con- 
 sideration ;(/) and though it has been decided that assumfisit 
 cannot be supported against a party, on his undertaking the 
 debt and costs recovered against himself, in consideration that 
 the plaintiff would stay execution ;(m) itisclear that such action 
 might be supported on a similar undertaking to pay made by a 
 third person ;(n) so between partners, who have by deed cove- 
 nanted 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, assianfisit may be supported, not- 
 
 {d) 4 Esp. Rep. 59. Sir T. Rayin. 1'28. 1 Ventr. 159. Com. 
 
 (c) 2 New Rep. US. Dig. Action Assumpsit, B. 1. 
 
 (,/•) 3 East, 333. C T. R. 170. 6 (/) Cro. Car. 343. Cro. Eliz. 6r. 
 
 East, 241. 12 Mod. 511. 1 Vin. Abr. 272. 1 
 
 (j)l<!. ibid. See exceptions iu 8 Roll. Abr. pi. 6. Bac. Abr. 8. As- 
 
 E;,<it, 231. surapsit. A. 
 
 (A) 6 T. R. irfi. (m) Cowp, 128, 9. Sed. qu. 7 T 
 
 0) 1 Saund. 210. n. 1. Hardr. 7i. R. 421. 
 
 ^<)j. 1 East, 104. 1 Lev. 188. 8 T. R. (ii) Cowp. 129. Harilw. 71. I Lev. 
 
 (/(.'} 1 Leon. 298 2 Sauud. 13" b. 188.
 
 96 Of* THE FORiM OF ACTION. 
 
 7. Miiump^if. withstanding- the deed ;(o) and where a contract under seal has 
 afterwards been varied in the terms of it by a simple contract, 
 such substituted agreement must be the subject of an action of 
 a-tawn/ifiit, and not of an action of covenant ;(/z) 
 
 It is also a rule, that when a bond or other security, under 
 seal or of record, has been accepted in satin/action of a simple 
 contract, the latter is )nerged in such higher security, and as- 
 suni/isil is not sustainable ;((/) unless such new security be void 
 on account of usury ;(/*) or under the annuity act, Sec. in which 
 cases the party may proceed on the original simple contract if 
 * *valid;fs) So if an infant give a bond in a penalty fornecessaries, 
 
 the bond being voidable, the creditor may proceed in assum/i- 
 i,-it;(t) and if after a secret act of bankruptcy, the bankrupt give 
 a bond in satisfaction of a simple contract debt, it will not so far 
 extinguish the simple contract as to preclude the creditor from 
 petitioning thereon for a commission. (m) And the acceptance 
 by a landlord of a bond for rent, is no extinguishment, because 
 the rent, issuing out of the realty, is a debt of a higher nature ; 
 though a judgment obtained on the bond would extinguish the 
 demand for rent.(7y) The taking a collateral security of a high- 
 er nature, whether from the principal or a surety, does not pre ' 
 elude the creditor from suing the original debtor in assumpsit 
 on the first contract ;(-r) though judgment may have been ob- 
 tained upon such collateral security.(!/) 
 
 It was also a branch of this rule that assumfisit 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 ; the demand, in the technical phrase, savourhig- of the 
 realty, and being recoverable by higher remedies as by debt or 
 distress. (r) The statute 1 1 Geo. II. c. 19. was passed to reme- 
 
 * op dy the *common law in this respect ; since which, rent due on 
 
 ro)2T. R.483. 478. (^O B'lH- N- P- 182- Stra. J042. 
 
 (p) 1 East, 630. 3 T. R. 596. (w) Bull. N. P. 112. 6 Co. 44. 
 
 (f;) Cro. Car. 415. Bac. Al.r. Debt, (j-) 2 Leon. 110. 6 T. R. 176, 7, 
 
 r;, (w) 3Ea.=.t, 251. 
 
 (?•) I Snunil. 295. a. Cro. Eliz. 20. [z) 1 Roll. Abr. 7. Cro. Jae. 598. 
 
 ft East, 241. 414. Cro. Eliz. 242. 3 Lev. 1.50. 
 
 (.t) 1 S.iunil. 295. a. Cro. Eliz. 20. 261. 3 Woodd. 152, 3. Freeni. 234, 
 
 »5 East, 241. Dong. 729. 
 
 (0 Run. N. P. 182. Co. Lit. 172 
 ' Cro. E]ir.920.
 
 OF THE FORM OF ACTION <J7 
 
 a parol demise may be recovered by action of as&um/isit or J- ^l^'simpiuf. 
 debt ;(a) and indeed, this notion seems no longer to prevail in 
 any case. (A) 
 
 Though a statute may in some respects be considered as a 
 3necialty,(c) yet assum/isic may be supported for money, Sec. ac- 
 cruing due under the provisions thereof, unless another remedy 
 be expressly given,(t/) and an order of an inferior court of jus- 
 tice may be the subject of this action, if there be an express 
 agreement to observe the samc.(<?) This action is also sustain- 
 able upon [he judgment of a foreign court, vhich is not consi- 
 dered as a debt of record in this country,(/) unless in the case 
 of an Irish judgment since the union. (§■) We have already 
 seen, that this action is not sustainable by a party against his 
 copartner to recover a proportion of profits, unless the ac- 
 counts have been balanced ;(/;) though in the case of a partner- 
 ship in a single transaction, exceptions have been admitted ;(?') 
 nor can this action be supported against a corporation^ which 
 cannot contract by parol, unless in the case of promissory 
 notes,/: and other contracts sanctioned by particular legislative 
 provisions ;(/) but a corporation may be pUdntifls in this form 
 of action.(7rt) 
 
 *VVhere there has been an express contract, the party in- -^j 99 
 
 jured may sustain an action of assumpsit.^ though the breach 
 amount to a trespass ;(«) but unless there have been such con- 
 tract, or the law will under the circumstances imply a contract, 
 the plaintiff must resort to another form of action, and, there- 
 fore, assumpsit for use and occupation cannot be supported 
 where the possession is adverse, but the plaintiff must declare 
 in ejectment or trespass ;(o') and though we have seen, that 
 where money has actually been receivedj* the plaintiff may in 
 
 (a)ST. R. 32r. 6 T. 15. C2. 6 {h) Ante, 25, 6,7. 2 T. R. 4S3. 
 
 East, 348. 4rs. 4 Kast, 144. 4 E«p. Ktp. 182. 
 
 (A) Willes, 1 n . 1 1 S. (0 Aute, 25, 6, 7. Willes, 20'J. 8. 
 
 (r) 1 Sauiul. 37, 8. T. K. I4f>. 
 
 {(1) Bull. N. 1'. 129. Cov p. 474. (A-) 3 &c 4 Ann. c. 9. 
 
 Dmig. 10, n. 2. 402. 407. 5T. R.130. (/) G Viu. 317. pi. 49. 5 East, 239. 
 
 Cora. Dig. tit. Action upon Statute. 242. 
 
 (<-) 2 IV k P. 484. (m) 2 Lev. 252. 
 
 (/) 1 Doug. 4. . \n) 1 AA'ils. 321. 3 Wils. S54. 
 
 \s) 3 East, 47 1> (o) 1 T. R. 386, 7. 378. Ld. Raym. 
 
 1216. Bac. Abr. Assumpsit, A.
 
 99 OF THE FORM OF ACTION. 
 
 I. .^isjmpsii. some cases waive the tort or trespass, and declare in assumfimt 
 for money liad and received ;./;) yet this action cannot in gene- 
 ral be supported to recover back money paid for the release of 
 cattle distrained damage feasant, but the party must replevy, 
 or proceed by action of trespass or trover ;(§') the principle of 
 which distinction is stated by Lord Mansfield, in the case of 
 Lindon v. Hooper Xr^ 
 
 The declaration in this action must invariably disclose the 
 consideration upon which the contract was founded ; the con- 
 tract itself, whether express or implied, and the breach there- 
 of,(«) and damages should be laid sufficient to cover the real 
 amount. The most general plea is non assumpsit, that the de- 
 fendant did not undertake and promise, as alleged by the plain- 
 
 ^ 100 tiff, and under *which the defendant may give in evidence most 
 matters of defence. 
 
 The Judgment in favour 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 de- 
 fendant'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 recovered be under 
 40.s.(0 unless the judge certify under the statute 43 AV/z. c. 6. 
 The nature of the declaration, and the distinctions between 
 special assumpsits and the general indebitatus count, and the 
 other proceedings in this action will be more fully stated here- 
 after. 
 
 11. DEBT. 
 
 Jl Debt This action is so called because it is in legal consideration for 
 
 the recovery of a debt, 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 
 
 (/>) Ante, 90, 1. Loft 20S.— (g) Cowp. 415. 6 T. R. 298. 
 
 Cowp. 419. 6 T. R. 695. Bull. N. (?) Cowp. 41 i. 
 
 P. 133. 2B1. Rep. 827. 3 Wils. 304. (s) B;ic. Abr. Assumpsit, F- 
 
 2 T. R. 144. C T. R. G95, ew. (0 I'i'W's Prac. 850.
 
 OF THE FORM OF ACTION. 100 
 
 in asswnjisit and covenant, the principal object of the suit, and II. Debt. 
 though this distinction may now be considered as merely tech- 
 nical, 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 toAzO 
 
 Debt is a more extensive remedy for the recovery *of mo- '■''^ 101 
 
 ney, than assumfiait or covenant, for it lies to recover money 
 due upon legal liubilities,(w) or upon simple contracts express 
 or implied,(.r) whether verbal or written, and upon contracts 
 under seal,(j/) or of record,(z) and on statutes by a party 
 grieved, or by a common informer, whenever the demand is 
 for a sum certain, or is capable of being readily reduced to a 
 certainty ;(a) as on a contract to pay so much per load for 
 wood, the quantity of which was not then ascertained ; or on a. 
 quantum meruit^ for work, or to pay a proportion of the costs 
 of a suit expected to be incurred, (A) or to recover the treble 
 value of tithes not set out according to the statute. (c) Rut it 
 is not suitable when the demand is rather for unliquidated da- 
 mages than for money,(c/) unless the performance of the con- 
 tract were secured by a penalty, in which case, debt may be 
 supported for the penalty, and the real demand is to be ascer- 
 tained according to the provisions of the 8 and 9 Wm. III. c. 
 1 1 . Debt also lies in the detinet, for goods, as upon a con- 
 tract to deliver a quantity of malt, which action differs from 
 that of detinue in respect of the property in any specific goods 
 not being necessarily vested in the plaintiff at the time the ac- 
 tion is brought, which is essential in detinue. (<?) 
 
 *0n simfile contracts and legal liabiliiies.,{f) debt lies to re- *■ 102 
 
 cover money lent, paid, had and received, and due on an ac- 
 
 (?0 1 H. Bl. 550. Bull. N. P. (6) 3 Lev. 429. 
 
 ICr. Cowp. 588. (c) Ld. Kaym. 682. 1 Roll. Abr. 
 
 {~w) Hob. 206. 598. pi. 19. 
 
 (.r) Hob. 206. Bull. N. P. 107. {d) Ante, note a. Ld. R.-jym 
 
 Com. Dig. Debt, A. 9. 1040. 2 Sauiid. C2. b. 
 
 (!/) Id. ibid. (e) Dyer, 24. b. Com. Dig. Debt, 
 
 (;) Id. ibid. A. 5. Bac. Abi-. Debt, F. 3 Vvoodd 
 
 (a) Bull. N. P. lOr. 3 Lev. 429. 103, 4. 
 
 SirT. Jones, 104. Ld. Ray m. 814. 3 (/) Anto, 101 
 Stra. 1089. Doug. 6. 2 T. R. 29. 
 
 Vol. I. [ 10 ]
 
 102 OF THE FORM OF ACTION. 
 
 //. Dtbt. count stated, (if) for interest due on the loan or forbearance of 
 money, 70 f<^'' work and labour, and a ijuantu/n meruii there- 
 on (/) for ftcs.(/r) for goods sold, and a quantum meruit t here- 
 on, (0 'iiid for use and occupation of houses or land, &c. on a 
 demise not under seal,(7?2) and for every duty created by com- 
 n\o!i law or custoni(?2) as on a bill of exchange, by the payee 
 against the drawer, on the default of the acceptor, and on a 
 promissory note by the payee against the maker, but not by or 
 aguinsi any other collateral party ;(o) and for tolls, port duties 
 and copyhold fines,(//) and on an award to pay money, but not 
 if it were to perform any other act, unless there were an arbi- 
 tration bond, in which case the action must be brought there- 
 on. (/) It lies also on by-laws, (r) for fines and amerciaments(«) 
 on KnglLh judgments not of record,(/) and on foreign judg- 
 ments. (^0 
 
 Debt lies also to recover money due, on any sfiecialty or con- 
 
 * 103 trart un<lcr seal to pay money,(x») *as on single bonds,(7y) on 
 charter-parties, (.r) on policies of insurance under seal,(!/) and 
 on bonds conditioned for the payment of money, or for the per- 
 formance of any other act by or against the parties thereto and 
 their personal representatives ;(z) and against the heir of the 
 obligor, if he be expressly named in the deed, or against a de- 
 visee having legal assets ;(a) and by the sheriff or his assignee, 
 on baiI-bonds,(6) and replevin bonds ;(c) on leases for rent or 
 
 (^) Com. Di-. til. Debt, A. 1 Roll. (s) Ci-o. Eliz. 581. Bull. N. P. 
 
 Abr. 5(1.3. 1)1. 25! Hob. 207. 1^7 1 11. Bl. 162. T. Hardw. 116. 
 
 (A) 5 T. R. 55,3. Hob. 206. 
 
 (/) Com. Dis?. Debt, B. (t) 1 Saiind. 92. n. 2. 
 
 \k) IJac. Abr. Debt, A. 1 Roll. (f/) 3 East, 221. Doug. 1. 
 
 Abr. 598. Com. Dig. Pleader, 2. W. {v) 2 Stra. 1089. 
 
 Ji. (w) Com. Dig. tit. Debt, A. 4.— 
 
 (0 Fortesc. 197. 2 T. R. 28. Stra. 1089. 1 T. R. 40. 
 
 (w) 6 T. R. 62. 6 East, 318. and {x) Stra. 1089. 
 
 this on account of bail in error, is {y) Marshall ou Insurance, 596.— 
 
 preferable to assumpsit. Tidd, 1077. 6 G. I. c. 18. s.4. 
 
 (ji) Com. Dig. tit. Debt, A. 9.— (.-r) Com. Dig. tit. Debt, A. 4.— 
 
 Hob. 206. Post, vol. 2. 151 to 159. 
 
 (o) 2 B. k P. "S. Chitty on Bills, (a) Bac. Abr. tit. Heir. 7 East, 
 
 2d edit. 303, 4. 2 Selwyn, N. P. 469. 128. Post, vol. 2. 159 to 162. 
 
 Ante, 94. (6) 4 k 5 Ann. c. 16. Post, vol. 2. 
 
 (/») Com. Dig. tit. Debt, A. 9. 162 to 168. 
 
 (y) 2 Saund. 62. n. 5. Buir. 278. (c) 11 G.H. c. 19. Post, vol. 2 
 
 Salk. 72. Ld. Raym. 715. Stra. 923. 168 to 173. 
 
 (r) 1 B.kP. 98.
 
 OF THE FORM OF ACTION. 103 
 
 penalties, as for ploughing up meadow, &c.(f/) on annuity II. Debt 
 deeds, (f) for rent charges against the pernor of the profits ol 
 the estate, (y) and on mortgage deeds. 
 
 This action also lies on records^ as upon the judgment of a 
 superior or inferior court of recoid,(^) either generally, or 
 against an executor or administrator suggesting a devastavit ;(A) 
 and at common law debt was the only remedy after a year and a 
 day had elapsed from the time when the judgment was recover- 
 ed, though scire facias is now sustcinable ;(?') where, however, 
 the defendant has been in execution *on the judgment, and ^ 104 
 discharged with the plainiiflT's concurrence, no action can be 
 supported on the judgment •,{k) and where tl)c defendant has 
 been discharged out of custody under the Lords* act, debt is 
 not sustainable ;(/) and the action upon a judgment has become 
 less frequent since the statute 43 Geo. Hi. c. 46. s. 4. 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. Debt is sometimes biought upon a recog- 
 nisance of bail,('«) but the remedy thereon is more frequently 
 by scire faciasy because in the latter the proceeding is more 
 expeditious, and the bail have less opportunity of discliarging 
 themselves by rendering their principal. (n) So debt lies upon 
 a statute vierchant^ though not upon a statute staple, because 
 the seal of the party is not affixed to the latter ; but it lies on 
 a recognisance in the nature of a statute sta/ile, to which the 
 seal of the conusor is affixed. (o) It lies also on a sheriff's re- 
 turn oi Jicri feci, which is in the nature of a record (/;) 
 
 {il) Com. Dig. tit. Debt, A. 5. R. (/;) I Sauii.l. '2lG. 218, 19. n. 7, S. 
 
 3B1. Com. '231. 1 New liep. lOi. Mod. .306. ,5 East, 'i. 
 
 109. (0 Gill). Dcht, ?><Ji, 4. 
 
 (c) Post, vol.2. ir5. (^•) 4 IJiur. 2482. 7 T. P. 4'20. 
 
 (/) Po^.t, vol. 2. 174. Cro. Eliz. (/) 3'2 Geo. II. c. '2S. s. '20. 
 
 2f.8. 895. Com. Disc. Debt, A. 5. 1 {m) Vol. 2. 177 to ISl. GilS 
 
 Saund. 28'2. n. 1. 27G. Lil. Holt held De'.jt, 39.5. 
 
 tliut coveiiaiit would not lie against («) TiUd, 3(1 edit. 2.>7. 
 
 the assignee of the grantor. 1 Ld. (o) 2 Saund. 09, 70. in notis. Com. 
 
 Haym. 322. t Sulk. 198. Dig. Debt, A. 3. 
 
 C?) (;ilb. Debt, 391, -2. Salk. 209. (/;) 2. Sannd. 3i3. 2 Show. 79. 
 
 Com. Dig. Debt. A. 2. Schvj-n, N. IL.b. 20G. T idd, 9.>.% 4. 
 
 ^ 5;j
 
 104 OF THE FORM OF ACTION. 
 
 Jl. Debt. Debt is frequently the remedy on statutes either at the suit of 
 
 the party grieved, or of a common informer.^ry) In some cases 
 it is given lo the /mrty gfieved, by the express words of a star 
 * 105 iutei as for an escape out of execution, (r) *or against a tenant 
 for double value for not quitting in pursuance of a notice to 
 quit given him by his landlord, (.s) and if a statute prohibit the 
 doing an act under a penalty or forfeiture to be paid to a parly 
 grieved, and do not prescribe any mode of recovery, it may be 
 recovered in this form of action ;{t) as treble the value of tithes 
 not duly set forth. (w) Where a penal statute expressly gives 
 the whole or a part of a penalty to a connnon informer., and en- 
 ables him generally to sue for the same, debt is sustainable, (x^) 
 and he needs not declare (]ui tarn unless where a penalty is 
 given for a contempt •,{%v) 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. (x) 
 
 In some cases this action is the Jieculiar remedy, as against a 
 lessee for an apportionment of rent, where he has been evicted 
 from a part of the premises by a third person, though cove- 
 nant is in such case sustainable against the assignee of the les- 
 see. (y) It is also the only remedy against a devisee of land, 
 for a breach of covenant by the devisor. (z) 
 
 Debt however, is not in any case sustainable unless the de- 
 mand be for a sum certain, or for a pecuniary demand which 
 
 ... , ,,,. can readily be reduced to a certainly, *as in the instances before 
 ■■'^' 100 \ . . . , , 
 
 enumerated '^c:) nor can it m general be svipportcd on a sim- 
 ple contract against an executor ; (unless in the court of ex- 
 chcquer,((?') or in those cases in which the testator, if living, 
 could not have v.'agcd his law ;)(f ) though if the executor plead, 
 and do not demur, he cannot afterwards object to the form of 
 
 (<7) Com. Dig. Action on Statute, E. O'l') W- ibkK 2 Siiunil. 37-i. n. 1, 
 
 Bac. Abr. Debt, A. 2. 1 Satind. 1.30. n. 1. 
 
 ()•) 1 Rich. II. c. 12. 1 Saund. 3-J, (.r) 5 East, 31,3. yi5. Stia. 828. 
 
 35.39.218. Com. Dig. Debt, A. (fr) 2 East, 579, 580. 
 
 (s) 4G. II. e. 28. s. 1. 1 Xcw (r)rEast, 12. 
 
 Hep. 174. Post, vol.2. 1S3. 00 Ante, 101. 
 
 (0 1 Roll. Abr. 598. pi. 18, 19. {b) 1 New Rop. 293. Plowd. 182- 
 
 111) Id. ibid. 1 Ld. Raym. 682.— 9 Co. 86. b. 1 Sauud. 68. 216. 286. 2 
 
 Post, vol. 2. 185. Saund. 74. n. 2. Ante, 93. 
 
 (r) Com. Dig. Action Debt, E. (c) 1 Saund. 216. a. n. 4. 9 Co 
 
 1, 2. sr. b.
 
 OF THE FORM OF ACTION. lOG 
 
 uction.(</) Nor can debt be supported for money payable by //. Beln. 
 instalments, till the whole debt is due ;(<?) though for rent pay- 
 able quarterly, or otherwise, or for an annuity, or on a stipula- 
 tion to pay 10/. on one day and 10/. on another, debt lies on 
 each default ;(/) and even where one sum is payable by instal- 
 ments, if the payment be secured by a penalty, debt is sustain- 
 able for such penalty on any default at common law as well as 
 on the statute. (5-) V/hen the landlord has accepted rent from 
 the assi£>;nee of a lessee, he cannot sustain debt against the les- 
 see or his personal representative, but must proceed by action 
 of covenant on the express contract ;(/{) and debt is not sustain- 
 able on a collateral contract, as on a promise to pay the debt of 
 another in consideration of forbearance, 8cc.O) nor against the 
 indorser of a *bill or note, or by an indorsee against the ac- ^ jq~ 
 ceptDr.UO 
 
 Foi*merIy, when the trial by wager of law was in practice, 
 the action of as&umfi&it was preferable to that of debt on simple 
 contract ;(/) but although this mode of defence and trial is still 
 in general in force w'hen the debt is due on simple contract,(?«) 
 and it may be adopted ; (except 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, 8tc. for fees ;)(n) yet it is now so 
 much disused that debt has of late become very frequent, and 
 is preferable in some respects to the action of assuni/isit, the 
 judgment therein being final in the first instance, and not in- 
 terlocutory as in assumfisit, and the defendant being in some 
 •cases compellable to find bail in error, though the judgment 
 be by nii elicit or on demurrer.(o) It was once thought that in 
 an action of debt the plaintiff could not in any case recover less 
 
 {(l) Plowd.18'2. r,(lG. 181, 2. Bac. Abr. Debt, D.— 
 
 (e) 1 H. Bl. 554. 2 Sound. 303. n. Com. Dig. Debt, 
 
 e. 3 Co. 22. a. Selwv n, N. P. 471, (/) Hardr. 486. Com. Dig. Debt, 
 
 ^72. Ante, 93. B. 2 B. k P. 83. Cro. Cai". 107. IGj- 
 
 (/) Id. ibid. Owen, 82. Bac. 1 Salk. 23. Ante, 94. 
 
 Abr. Debt, A. C. (k) 2 B. & P. 78. Ante, 04. 
 
 (5-) 8 &c 9 W. III. c. 11. Bac. AW. (?) 3B!. Com. 347. 
 
 Debt, B. 1 Wils. 80. Cora. Dig. \m) Id. ibid. 1 New Rep. 2r43. 
 
 Action, F. (h) 3 Bl. Com. 345, 6. 1 Saund 
 
 {li) Ante, 35, 6. 1 Sannd. 241, 2. 216. a. n. 1. 9 Co. 87. b. 
 
 n. 5. 2 Saund. 297. n. 1. 303. n. 5. (o) 3 Jac. I. c. 8. 3 East, 359.
 
 107 OF THE FORM OF ACTION. 
 
 //. Lebt. than the sum demanded ;(//) which notion greatly discouraged 
 the action of debt on simple contract, because -if the plaintiff 
 could not, upon the indebitatus or (juantum meruit count, prove 
 that he was entitled to recover the precise sum alleged to be 
 due, he was nonsuited. It is, however, now comple'ely bettled, 
 that the plaintiff may. in deln on simple contract, prove and 
 recover less than the sum stated to be due in his declaration ',{q') 
 
 ^ 108 *uniess there be a variance in the description of a written in- 
 
 strument, or deed ;(r) for the difference is, that where debt 
 is brought upon a covenant to pny 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 remit- 
 titur.{s) 
 
 The declaration in this action, if on sim/ile contract must 
 shew the consideration on which the contract was founded, 
 precisely as in assumjisit ;{t) iind should state either a legal 
 liability, or an express agreement ; though not i.\ promise to pay 
 the debt.(u) But on s/ircialties, or records, no consideration 
 needs be shewn, unless where the performance of the consider- 
 ation 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 in- 
 stance of debt for rent.(w) The JiL a of general haue to debt 
 on simple contracts, or on statutes, or where the deed is only 
 matter of inducement, is ;/// debet j but in general, in debt on 
 specialty, the plea denying the existence of the contract is Jion 
 est fact7im ;{x) and to debt on record, nul tiel record; most 
 other matters must be specially pleaded. The judgmc7it in 
 the plaintiff's favour, which at common law is final, in all 
 cases is, that the plaintiff recover his debt, and in general, 
 
 * 109 nominal damages, *for the detention thereof; and in cases un- 
 der the R and 9 VVm. III. c. 11. it is also awarded, that the 
 
 (//) 3 BI. Com. 155. 2 Sir W. Bl. (.j) Per Holt, C. J. 2L(1. Raym. 
 
 1221. 2T. R. 28. Bull. N. P. 171. Slfi. 
 
 {q) I H. Bl. 550. 249. 12 Mod. 72. (0 Post, vol. 2. 142 to 145. 
 
 Doug. 6. Sehvyn, N. P. 470. {n) 2 T. R. 28. 30. 
 
 (j) 1.<1. Rsym. 8lQ. 1 H. Bl. 251. (-.y) 1 New Rep. lOi. Post, vol. 2. 
 
 I Saund. 288. u. 1. 17.5, 4. 
 
 (x) 2 La. Raym. 1509. Id itid-
 
 OF THE FORM OF ACTION. 109 
 
 plaintiff have execution for the damages sustained by the ^^ ^<'^^- 
 breach of a bond, conditioned for the performance of covenants ; 
 and the plaintiff, unless in some penal and other particular ac- 
 tions, is entitled to full costs of suit, aUhough the damages re- 
 covered be under 40s.(y) unless the judge certiiy under the sta- 
 tute of Elizabeth. Where the action is for rent, or on a mo- 
 ney bond, or on a written contract, for a sum certain, and the 
 defendant suffers judgment by default, he must in general find 
 bail in error ;(r) which frequently renders this action preferable 
 to that of assumjiait or covenant. 
 
 III. COVEXA.XT. 
 
 The rules respecting this action are few and simple ; it is a JII. 
 remedy calculated for the recovery of damages for the breach 
 of a cQvniant or contract under seal ;{a) whether such covenant 
 be contained in a deed poll, or indenture ;(6) or be express or 
 implied by law from the terms of the deed ;(f ) or for the per- 
 formance of something mywrwro, or that something has been 
 done ;Crf) and in some cases, though it relate *to matter in ^ 110 
 firesenti, as that the covenantor hath good title :(o) though it is 
 said, that in general covenant will not lie on a contract in pre- 
 sently as on a covenant to stand seised, or that a certain horse 
 shall henceforth be the property of another. (//) It would be 
 foreign to tbe present inquiry, relating iiierely to the applica- 
 tion of the remedy, to inquire into the nature and description 
 of the different covenants, which are to be found in the works 
 relerred to in the note.(.y) 
 
 (i/) Tidd, 3(1 edit. 880. {d) Com. Dig. Covenant, A. 1.— 
 
 (z) Tidd, 1077 to 1079. Plowd. 308. 
 
 (a) 2L<I.Raym. LSae. F. N. B. (o) 3 Woodd. 85, 86. 2 B. k P 
 
 145. Cro. Jac. 506. Com. Dig. Plead- 13. 2 Shiuu]. 181. b. 
 
 er, 2. v. 2. Covenant, A. 1. (/>) Plowd. 308. Finch. 49. b.— 
 
 (A) 1 Roll. Abr. 017. pi. 40. Com. Com. Dig. Covenant, A. 1. Vin. 
 
 Dig. Covenant, A. 1. Post, HI. as Abr. Covenant, A. pi. 6. G. 3. 
 
 ^j bonds. (9) Sel« yn, N. P. tit Covenant- 
 
 (c) Com. Dig. Covenant. A 2. Com. Dig. Covenant, A. 2, 3,4.— 
 
 Bac. Abr. Covenant.
 
 110 OF THE FORM OF ACTION. 
 
 Jil- Covenant is the usual remedy upon indentures of apprentice- 
 
 ship, against the master for not instructing his apprentic e, or 
 against the party who covenanted for the due service of such 
 apprentice, but it will not lie against an infant apprentice, or 
 where the binding was for less than seven years.(r) It lies also 
 on articles of agreement under seal, or deeds of separate 
 maintenance ;(*) and on covenants in deeds of conveyance, &c. 
 for good title, 8cc,i7) on charter-parties of affreightment ;(«) 
 on policies of insurance under seal against fire, StcXx) and on an- 
 nuity and mortgage deeds ; though debt in the last instances, 
 is in general preferable when the demand is for money .(y) It 
 *^ 1 1 1 ^^ ^'^*^ ^'^^ usual remedy on leases at the suit of the *lessee, 
 his executor or assignee against the lessor fer the breach of a 
 covenant for quiet enjoyment, &c. and by the lessor, Sec. against 
 the lessee, &c. for non-payment of rent, not repairing. Sec and 
 covenant appears in general to be a concurrent remedy with 
 debt, for the recovery of any money demand, where there is 
 an express or implied contract contained in the deed ;(r) and it 
 has even been holden that an action of covenant is sustainable 
 on a bond, though debt is now the usual remedy. («) 
 
 This action most frequently occurs on leases. At common 
 law, upon the death of a lessor seised in fee, his heir might sue 
 for a subse(|uent breach of a covenant running with the land, 
 although not named in the lease ;{b) and the action oi debt lay 
 for the assignee of the reversion for roit^ at common law ;(c) 
 but no persons could fi)rmerly support an action of covenant^ 
 or take advantage of a-ny covenant or condition, except such 
 as were parties or privies thereto ; and of course no grantee 
 or assignee of any reversion or rent, to remedy which the 
 statute 32 Hen. VHI. c. 34. gives the assignee of a re- 
 version the same remedies against the lessee, or his assignee, 
 or their personal representatives upon covenants running 
 
 (r) Post, vol. e. 233. Cro. Car. (:) Com. Dig. Action, M. 4. 
 
 iri). (a) 3 Lev. 119. Hard. I'S. 8 
 
 (.S-) 2 New Rep. 148. Mod. 190. Doug. 518. Com. Dig. 
 
 (J) 2Saund. 17.^. irS. 181. 2 B. AcUon, I. M. 4. Covenant, A. 2. — 
 
 k P. 13. 3 East, 401. Via. Abr. Coveuasit, B. pi. 10. 
 
 . ((/) 3 East, 233. 1 Xew Rep. 104. {b) 2 Lev. 92. and see the conclu- 
 
 (.v) 6 T. R. 710. 2 Mars. 601. a. diug words of the 32 Hen. VOL c. 34- 
 
 a. and G G. L c. 18. s: 1. 
 
 {ij) Post, vol. 2. 175. (c) 1 Saund. 241. c.
 
 OF THE FORM OF ACTION. HI 
 
 kith the land, as the lessor or his heir, or their successor, had at ^ ^I^- 
 
 Covenant. 
 Common law ; and on the other hand, such assignee is liable 
 
 by the statute to an action for a breach of covenant i"unning 
 
 *with the land as the lessor. Sec. was at common law.(c/) * 112 
 
 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 have accepted the assignee as his tenant, 
 or the lessee have become bankrupt, in which case the action of 
 debt is not in general sustainable ; and the lessor CaU only sue the 
 lessee after such assignment in covenant, and then only upon 
 an exfiress covenant, and not upon a covenant in law ;(e) and 
 on the other hand, as a personal contract cannot be apportioned, 
 therefore, where there has been an eviction fi'oni 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.(/) 
 With respect to the asszgJiee of the lessee, the lessor may sup- ^ 
 
 port debt or covenant at common law •,(g) and an assignee of a 
 part of the premises may be sued in covenant ■,(h') and it lies 
 for an apportionment against the assignee of the lessee, in case 
 of a partial eviction by a stranger, though we have seen that it 
 is not in such case sustainable against the lessee. (/) 
 
 From the preceding observations, it appears that the action of 
 covenant being for the recovery of damages for the non-perform- 
 ance of a *contract under seal, differs very materially from the ^ i i o 
 actions of assu?n/isil and debt; for assu?nfi&it, though for the re- 
 covery of damages, is not in general sustainable where the contract 
 was originally under seal, or where a deed has been taken in sa- 
 tisfaction ;{k) and though debt is sustainable upon a simple con- 
 ti'act, 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 da- 
 mages are unliquidated and incapable of beuig reduced by aver- 
 
 (<i) 3 Bl. Com. 158. See tlie ob- (/) 2 East, 375. 
 
 servalions on the statute, Bac. Abr. (j') 1 SaUruI. 241 . c. 3 Co. 22. I? 
 
 CovL-nant, E. 5. Vin. Abj\ Cove- (A) Sir W. Joaes, 245. 2 Ea?t. 
 
 nant, K. 3. Ante, c. 1. as to the par- 580. 
 
 ties to sue and be sued. (7) 2 East, 75. 
 
 (e) Ante, 36. 1 Saund. 241. n. 5. (i) Ante, 94 to 90 
 1 T. R. 92. Cro. Jac. 52.". Cullen, 
 392, 3. 
 
 Vol. T rill
 
 US OF THE FORM OF ACTION. 
 
 JJf- incnt to a ccitLiiutv ;(0 and thoueh, Avhere the object of the ac 
 
 Coveimnl. . - '. _ . 
 
 tion of covenant is the recovery of a money demand, the dxs- 
 
 thiction between the terms, damages and mortey in niunero^ 
 
 may not on first view appear substantial, yet vvc shall find it 
 
 material to be attended to.(7H) 
 
 Covenant is the peculiai* remedy for the non-performance of 
 a contract under seal, where the damages are unliquidated, and 
 depend in amount on the opinion of a juiy, in which case wc 
 liuve seen that neither debt nor assu/n/i,si( can be supported ;(n) 
 and it is the proper remedy where an entire sum is by deed stipu- 
 lated to be paid by instalments, and the whole is not due, nor the 
 payment secured by a penalty ;(o) and it is frequently more ad- 
 visable to proceed in covenant, on a lease, Sec. for general da- 
 mages, than to declare in debt for a penalty, securing the pcr- 
 ^ 1 1 i formance *of a covenant, because, if the party elect to proceed 
 for the penalty, he is precluded from afterwards suing for gene- 
 ral 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 execuiion, he must proceed under the statute 8 
 and 9 JT. III. c. 11. whereas if he proceed in covenant, for 
 every repeated In'cach, he may ultimately recover damages 
 beyond the amount of the penalty ;(//) and where rent is due 
 upon a lease, and there has also been another breach, as for not 
 repairing, for which the plaintiff' claims unlic^uidated damages, 
 covenant is preferable to debt, because, in the former, damages 
 for the whole demand may be recovered. So where the 
 grantor of an annuity has become a bankrupt, or an insolvent 
 debtor, the grantee should proceed for arrears which became 
 due after the insolvency, by action of covenant on the annuity 
 deed, and not by action of debt on the annuity bond, to which 
 the bankruptcy and certificate would frequently be a bar.(7) 
 
 On the other hand, covenant cannot in general be supported 
 unless the contract were under seal, and when it is by parol. 
 
 (/) Ante, 100, 1. HuH.X. p. 107. (o) Ante, 100. Com. Dig. Action. 
 
 (w) Ante, 100. Rien iu airerc is F. 
 
 :i good pica in debt for i-eut, but not (/j) Burr. 1551. 1087. Ld. Rayin 
 
 ill covenant, because the latter action SI4. Doug. 9". 
 
 is for damages. Cowp. 588, <). (q) Cidlen, 92. 94. 392, Douj. 97 
 
 (ii) Ante, 9i to 101. 105. :: East, 151
 
 OF THE F0R:M of ACTION. 114 
 
 the plaintiff must proceed by action of asauwp&u, Scc.(r) ua- (jJJ^lum, 
 less by special custom in London and some other pkices ;(s) 
 or ai^ainst the lessee or patentee of the crown, *\vhen covenant * ] 15 
 
 may be supported, although he did not seal any counterpart ol 
 the lease, it being matter of record, and the lessee's acceptance 
 of the demise being in such case as obligatory as an express 
 covenant ;(/) so if a lease be made to A and B, and A only 
 execute it, but B agree thereto, he may be sued jointly willi 
 .'/upon a covenant for rent running with the land.(w) And tliis 
 action may be supported, although the covenantee did not sign 
 the indenture in which he was named a party •■,^iu) 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. {x) Where a con- 
 tract under seal, has afterwards been varied in the terms of it 
 by a subsequent parol contract, such substituted agreement must 
 be the subject of an action of nssmnpsit, and not of covenant :(!/) 
 and it has been holdcn, that covenant cannot be s\ipportcd 
 against the assignee of the grantor of a rent charge, though 
 debt is sustainable against the pernor of the profits. (r) la 
 some cases where the breach of a covenant is jnhfcasance, the 
 party has an election to proceed by action of covenant, or by 
 action on the case for the tort, as against a lessee, either du- 
 ring his term, or afterwards, for waste. (o) 
 
 *The declaration in this action must state that the contract 
 was under seal ;(/^) and should usually make a profcrt thereof, 
 or shew some excuse for the omission ;(c) it is not necessary 
 to state the consideration of the defendant's covenant, unless 
 the performance of it constituted a condition precedent, when 
 
 (r) Ld. Kaym. 15.30. Cora. Disr. (w) Lutw. 305. Com. Di;,'. Cove- 
 
 iMcjuIcr, 2. V. 2. Covenant, A. 1. uaiu, A. I. 
 
 l-'itz. N. B. G. (.r) Com. Dii;. Covinuiit, A. 1. 
 
 (*) W. ibid. Cora. Dig. London, Ante, -i. 
 
 N. 1. lit. Covenant, A. Vin. Abr. Co- (r) Ante, 90. 1 Rust, 030. 3 T 
 
 vcnaut, A. R. 590. 
 
 («) Cro. Jac. 399. 5-21. Com. Di^-. (:) i Salk. 198. I Ld. Uayra. 32-2. 
 
 Covenant, A. I. Vin. Abr. Cove- Ant<;, 103. 
 
 liant, B. 1)1. 1. ((/) 2 151. Rep. 1111. Si8. 
 
 (m) Co. Lit. 251. a. 2 Rol!, Abr. {b) Ante, 109. 2 Ld. Raym. 153G. 
 
 ■C3. Com. Dig. Covenant, A 1. Com. Di-. Pleader, 2 \. 2. 
 
 ((■) .rr. K. 151. 
 
 116
 
 IIG OF THE FORM OF ACTION. 
 
 111. such performance must be averred ; and only so much of the 
 
 Covenaui. 111 ■ 1 i 1 r , • . . ■ 
 
 clcefl and covenant should be set forth as is essential to the cause 
 
 of action, and each may be stated according to tlie legal effect, 
 though it is more usual to declare in the words of the deed ; 
 and the breach also may be in the negative of the covenant, 
 generally, or according to the legal effect, and sometimes in the 
 alternative ; and several breaches may be assigned at common 
 Iaw;(rf) and damages being the object of the suit, should be 
 laid sufi'icient to cover the real amount. 
 
 In covenant there is strictly no filea which can be termed a ge- 
 neral issue, for jioji est factum only puts in issue the fact of seal- 
 ing the deed ;(<?) and no7i mfregit conventionem, and nil debet are 
 insufficient pleas ; and therefore, most matters of defence must 
 be pleaded specially. (y) The judgment in this action is, that 
 the plaintifl' recover a named sum for his damages which he 
 hath sustained by reason of the breach or breaches of covenant 
 together with full costs of suit, to which the plaintiff is entitled, 
 •^ 117 though the damages *recovered be under 40s.(g) unless the 
 
 judge certify under the statute Eliz.(h) When the defendant 
 suffers judgment by default, he is not bound in this action to 
 put in bail in error, which circumstance renders the action of 
 debt for rent or money due on a contract for a sum certain, pre- 
 ferable to covenant.(/) 
 
 IF. DETLXUE.{*) 
 
 Ti' DeHmie. The action of detinue is the only remedy by suit for the re- 
 covery of a personal chattel in specie, unless in those cases 
 where the party can regain the possession by replevin : for 
 
 (f/) Post, vol. '2. 194. n. v. Com. jnincd in the same action, thoug;h the 
 
 Dig. Pleader, 3. V. 2, 3. Com. Rep. jiulgment is (lifTcrenl, see Brownl. 
 
 145. He<!. 186. Cxilb. C. P. 5. 2 Saund. 
 
 (c) Com. Dig. Pleader, 2. V. 4. &c. 117. b. and as it has been generally 
 
 ST. 1>. 283. 1 Lev, 183. stated that detinue is not sustainable 
 
 (./ ) Com. Dig. Pleader, V. 4. kc. when the goods came torttortsly into 
 
 (^•) Tidd, 3d ed. 880. the defendant's possession, (see 3 Bl. 
 
 (/)) 43 Eliz. c. 6. Tidd, 870. Com. 152. pest, 119.) 1 hare there- 
 
 (/) Tidd, 1077 to 1079. tore considered this action under the 
 
 (*) As debt and detinue may be head of actiujis ex contractu.
 
 OF THE FORM OF ACTION. 117 
 
 in tlic actions of trespass and trover, for taking awav or JV. Bainw 
 detaining goods, or in assum/isit for not delivering them, 
 damages only can be recovered. (^') This action may be con- 
 sidered ; 1st. With reference to the nature of the thing to be re- 
 covered ; 2dly. TheplaintiflF's interest therein ; SJly. The in- 
 jury ; 4thly. The pleadings; and 5thly. The judgment. 
 
 As the object of this action, is the recovery of a specific 1st. For wlia''. 
 chattel, the goods for which it is brought, must be distinguish- {i^.J 
 able from other property, *and their identity ascertainable by * 118 
 
 some certain means : thus it lies for a horse, a cow, ov money 
 in a bag,; but for money or corn, &c. not in a bag or chest or 
 otherwise distinguishable from property of the same descrip- 
 tion, detinue cannot be supported. (>t) It lies upon a contract 
 for not delivering a specific chattel in pursuance of a bailment 
 or other contract ;(/) but, as to support this action, the pro- 
 perty in some particular chattel must be vested in the plaintiff, 
 assufnjisit or debt in the detinet is the only remedy for the non- 
 delivery of corn. Sec. sold, where no specific corn was contract- 
 ed for.(7H) 
 
 A person who has the absolute or general property in goods, 2illy. The- 
 
 , , . , . ,. . ' ... plaintiff's iifc- 
 
 and the right to immediate possession, may support this action terest. 
 although he has never had the actual possession ; therefore an 
 heir may maintain detinue for an heir loom ; and if goods be 
 delivered to ^ to deliver to B, the latter may support this ac- 
 tion, the property being vested in him by the delivery to his 
 use.Cw) But if the plaintiff have not the right to the imme- 
 diate possession of the goods, and his interest be in reversion, 
 he cannot support detinue, trover, or trespass. (o) A person 
 who has only a special property, as a bailee, he. may also sup- 
 port this action, where he delivered the goods to the defendant, 
 or they were taken out of such bailee's custody. (/;) It is said 
 
 (i) 3B1. Com. UG. 152. "Willes, (//:) 3 Wood.l. 104. 1 Dyer, 24. b. 
 
 120. Co. Lit. 296. b. Com. Di- („) 2 Saund. 47. a. n. IKro. Abr. 
 
 Detinue, A. Detinue, jil. 30. 45. 1 Roll. Abr. OOG. 
 
 (*•) Com. Dig. Detinue, B. C. Co. Cora. Di- Detinue, A. 
 
 Lit. 286. b. 3 Bl. Com. 152. 2 Bulstr. (o)7T.l{. 9. 
 
 ■^'8. (^) Bro. Abr. Dctimic. 2 Saund. 
 
 (/) Fitz. X. B. 158. Willes, 120. 47. b. c. d. 
 jBl. Com. 152.
 
 j.un'. 
 
 Iti^*^ OF THE FORM OF ACTION. 
 
 JV. Detinue, tiiiit if a person *detuin the goods of a woman, Avhich came iu 
 his hands before her marriage, the husband alone must bring 
 this action, liecause the property is in him alone at the time of 
 the action brought. (y) 
 
 sdiy. The 111- Tlic gist of this action is the wrongful detainer, and not the 
 original taking. (r) It lies against any person who has the ac- 
 tual possession of the chattel, and who acquired it by lawful 
 means, as either by bailment, delivery, or finding. (s) It is a 
 common doctrine in the books that this action cannot be sup- 
 ported, if the defendant took the goods tortiou6li/,(('j an opinion 
 which appears to be founded on the judgment of Brian, Ch. 
 J. who held,(?0 that detinue could not in such case be support- 
 ed, because by the trespass the property of the plaintiff was 
 divested, and that in order to support detinue, the property in 
 5J>e chattel must be vested in the plaintiff at the time of the 
 eommencement of his action ;(-7y) but it is observable that Fa- 
 visor, J. in the same case, was of a different opinion : and the 
 notion that the property is changed by the trespass appears un- 
 founded, for though a trespasser die possessed, the property is 
 not thereby altered ;(.c) and it has been decided that if goods, 
 Sec. taken away still continue in specie in the hands of the 
 120 wrong-doer or his executor, replevin or detinue, *may be sup- 
 
 ported by or against the executor :(_?/) and though in pleading 
 it is usual to state that the defendant acquired the goods by 
 finding, yet that allegation is not traversable :{z) and, as ob- 
 served in Kettle V. Bromselh[a) if detinue could not be support- 
 ed a person might be greatly injured, aiul 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 
 
 {cj) Bull. X. V. .50. Ante, CO, 1. (»/) r, II. VTl. c. 9. 
 
 Sed vide 11. T. Hanhv. 120. (-.r) 6 H. VII. e. 9. Lonl Kciiyon^ 
 
 (;•) 3 BI. Com. 15:2. Co. Lit. 280. b. Cli. J. in I East, 107, 8. obsci-ved up- 
 
 (s) Wiiles, US. Co. Lit. -I'iu. h. on this iloi-trine of the propoilv be- 
 
 J'itz. X. 13. 13S. E. B;ic. Abr. Ue- ing altered by a trespass. 
 
 Unuc. (■(■) Com. Dig. tit. Bien, E. 
 
 (;) G n. Vn. c. 9. 3 Bl. Com. 1.V2. (//) Sir W. Jones, 173, 4. 1 Sauiid. 
 
 Bro. Abr. Detinue, pi. 35. i3. Com. 21 C. a. 
 
 Dig. Detinue, D. Yin. Abr. Detinue, (:) Doc. Plae. 124. Bro. Abr 
 
 B. 2. pi . 5. Trespass, Y. pi. 12. Cro. Detinue, i>l. 50. 1 New Rep. lit). 
 
 Eiix. 824. ScW-yn, N. V. Detinue. («) Willes, 120.
 
 OF THE FORM OF ACTION. 1:20 
 
 merely for damages would be an inadequate satisfactIon.(6) jy. Detinue. 
 Dclinuc cannot be supported against a person who never hud 
 the possession of the goods ; as against an executor on a bail- 
 ment to the testator, unless the goods canie to the possession 
 of the executor ;(c) nor does it lie against a bailee, if before 
 demand he lose them by accident ;(ri) though if he wrongful- 
 ly deliver the goods to another, he will continue liable. (c) If 
 goods be delivered to a feme before her marriage, and after- 
 wards detained, the action may be brought against husband and 
 wife ;{/) but if the bailment were to the husband and wife after 
 marriage, it is said that the husband must be sued alone.(5') 
 
 With respect to the pleadings in this action, more certainty The pk-id- 
 is necessary in the description of the chattels, than in an action "'»*' 
 of trover or replevin ;(/;) but it is not necessary to state the 
 *date of a deed ;(2) and if the action be brought for several ^ 121 
 
 articles, the value of each need not be stated separately in the 
 declaration, though the jury should sever the value of each by 
 their verdict.(^") In the case of a special bailment, it is pro- 
 per to declare, at least in one count, on the bailment,(/) and to 
 lay a special request ;(?«) but in other cases, it is sufficient to 
 declare upon the supposed finding, which we have seen is not 
 traversable. («) The general issue in this action i%non dednet^ 
 and under it the defendant may give in evidence a gift from 
 the plaintiff, or any other defence which proves that the de- 
 fendant doth not detain the plaintiff's goods ; but the defendant 
 must plead specially that the goods were pawned to him for 
 money remaining unpaid.(o) 
 
 The nature of this action requires that the verdict and judg- The verdw-r. 
 mcnt be such, that a specific lemedy may be had for recovery 
 of the goods detained, or a satisfaction in value for each seve^'al 
 
 andiadarment 
 
 {b) See also Cro. Eliz. S24. Cora. (0 1 "Wils. 116. 
 Bi^'. Action, M. 6. v; H. \ ill. c. 22. (A) 2 Bl. Rep. S53. Post, vol. 2. 
 
 Viii. Abr. Detinue, D. 5. pi. GtJ. 230. 
 
 (r) Bio. Detinue, 19. 2 liulstr. (/) I New Rep. 1-iC. Post, vol. 2. 
 
 ■W8. 23fi. n. (A.) 
 
 (r/) Ri-o. Detinue, pi. 1,2, 3. iO. («j) Willes, 120. Post, vol. 2. 23f.. 
 
 {<;) Id. ibid, iu.d pi. 2. 34. n. 0'.) 
 
 (/) Co. Lit. 351. b. (m) 1 New Rep. 140. 4 T. R, 2^?0- 
 
 (5-) 2 Bulstr. 308. 38 E. IIT. fol. 1. Wiiles, 120. 
 
 (/;) 2Saund. 74. a. h. Co, J.i». 28^ (>•) C Co Lit. 28."^' 
 
 b. Post, vol. 2. 23 S. n. f
 
 121 OF THE FORM OF ACTION. 
 
 U'. Detinue, 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 eafch separately ;(/i) 
 and if the jury neglect to find the value, the omission cannot 
 be supplied by urit of inquiry .(^r) The judgment is in the 
 
 '* 122 alternative, that the plaintiff *do recover the goods, or the 
 value thereof if he cannot have the goods themselves, and his 
 damages for the detention, and his full costs of suit.(r) This 
 action is in most cases still subject to wager of law, on which 
 account it was not much in use till that mode of trial became 
 obsolete, but now it is frequently adopted* 
 
 OF ACTIO.YS LX FORM EX DELICTO. 
 
 .Xatiirc of in- Personal actions in form ex delicto, and which are principallv 
 
 Junes ex . 
 
 Delicto. for the redress of wrongs unconnected with contract, are case, 
 trover, detinue,(s) replevin, and trespass -vi et armis. Mixed 
 actions are ejectment, waste, he. Before we consider the ap- 
 plication of these remedies, it is advisable to take a concise 
 view of the nature of ihe different injuries ex delicto, because 
 they in general govern the form of the action ; thus if the in- 
 jury be forcible, and occasioned immediately by the act of the 
 defendant, trespass vi et ar}nis is the proper remedy ; but if 
 the injury be not in legal contemplation, yord^/e, or not direct 
 and immediate on the act done, but only consequential, then the 
 * 103 remedy is by action o?z the case ;it) and *there are other points 
 relating t.o the nature of injuries, which, as they affect the form 
 of the action, are material to be ascertained. 
 
 Injuries ex delicto are in legal consideration committed with 
 force, as assaults and batteries, Sec, or ivithout force, as slander, 
 
 (j!^) 2 151. Rep. 854. 3 H. VI. tliis action, tvhich we have seen lies 
 
 i.3. a. for non-delivciy of goods according 
 
 (9) 10 Co. 119. b. Salk. 20C. to a contract, and tlierefoi-e it is un- 
 
 ()•) Cro. Juc. GSt^, 3. I'idd's Forms, necessary to give il further considei-a- 
 
 302. Townsend's Judgment, 1 Book, tion. 
 
 344. '2 Book, 82, 3, 4, 5. Aston's (0 3 Ean, 593. 600. Ld. Raytu. 
 
 Ent.202. 2Ktihv. 04. 1399. Stra. 634. 2T.R. 231. 5 T- 
 
 (e) We have already considered R. 649. 8 T, R. 190.
 
 OF THE FORM OF ACTION. 123 
 
 &c.(t<) They are also cither immediate and direct^ or mediate and JVature ttf in- 
 consequential. It is frequently difficult to determine when the '''^'jjcilaf 
 injury is to be considered forcible or not, and Avhcn immediute 
 or consequential, and therefore whether trespass or case is the 
 proper remedy. (ty) 
 
 Force is in letral consideration of two descriptions, cither 
 implied by law or actual ; force is im/ilied in every trespass t/uare 
 clausu?n /regit .(x) The distinction is material, and is thus put 
 in Sal/celd t '< If one enter into my ground, I must request him 
 " to depart, before I can lay hands on him to tuin him out ; for 
 " every im/ioaitio t.ictnuum is an ass.ailt and battery, which can- 
 " not be justified upon tlie account of breaking the close z/z law 
 " without a previous request to depart ; the other is an actual 
 " force, as in burglary, as breaking open a door or gate, and in 
 " that case it is lawful to oppose force to force ; and if one 
 " break down the gate, or come into my clos- vi et armis, I 
 " need not request him to be gone, but may L,y hands on 
 " him immediately ; so if one come forcibly and take away 
 my goodS) I may immediately oppose him, for " *thcre ^ 124> 
 
 is no time to make a requcst."(r/) In the case of false 
 imprisonment also force is implied ;(r) and the same rule 
 prevails where a wife, daughter, or servant have been enticed 
 away or debauched, though in fact they consented, the law con- 
 sidering them inc.ipable of consenting ; and trespass may be 
 supported, though case for the consequence of the w:on;:^ ap- 
 pears to be tlie more proper form of declaration. .'a) The de- 
 cree of violence with which the act is done is not material as 
 far as regards ihc form of action, fur if a log were put down in 
 the most quiet way upon a man's foot, the action would be tres- 
 pass ; but if thrown into the road with whatever violence- and 
 One qfter'u>ard6' fell over it, it v*ould be case and not tresp:.ss.((i) 
 With respect to injuries to a rijht or a proper Ly not tuntfidlef 
 
 OO 3 Bl. Com. 118. 308, 'J. (z) \ New Rpp. 255. 1 Selwynj 
 
 (ly) Ante, l'22. n. t. '2 Xcw, 118, N. P. a<!(leiitla, 563. 
 
 ll'J. 8 T. R. 101. 2 Burr. 1114. (a) 3 Wi!s. IS. Fitz. X. B. 89. O- 
 
 2 XLwRep.:3fi5. 454. 5 T. R. .301. 6 Kast, 58/. 3 Bl 
 
 (a) 2Salk. 641. Co. Lit. 257. b. Com. 140. 2 New Kep. 365. 454. 
 
 ICl. b. 162. a. 1 Sauiul. 81. 140. n. 4. 8 (l-) Per Lc Blanc, .1. 3 East, 60-2. 
 
 T. R. 78. 358. 15ac. Abr. tit. Tie.spass. 1 Sti-a. 630. 5 T. R. 6 iO 2 y-^'-- 
 
 ((/)2Salk. 641. S T R. 78. 357. Rep. 365. 454. 
 
 Vol. I. [ 12 I
 
 121 OF THE FORM OF ACTION. 
 
 jYanire o/in- such as reputation and health ; and real properly incorporeal, as 
 
 jw'ies ex ,. , 
 
 Delicto. a right ot way, comnion, kc. as the matter or property injured 
 
 cannot be afiectcd immediately by any substance, llie injuries 
 thereto, however malevolent and however contrived, cannot be 
 considered as conrmiticd with iorce ; c) and in general a mere 
 7ionf(asance cminot be considered as forcible, ior where tiicre 
 has been no act, there cannot be force, as in the case of a neg- 
 lect to take away tithes, (r/) or a mere detention of goods with- 
 ^ 12o out an unlawful taking ;(f') or *the neglect to repair the banks 
 
 of a river, whereby the plaintiff's land was overflowed,(y) or 
 neglect to redeliver a beast distrained damage feasant, when 
 sufficient amends were tendered before the beast was impound- 
 ed. (5") When ii is material to rely upon actual force in Jilead- 
 vig; as in the case of a forcible entry, the words '' inanu /orti" 
 or " with strong hand," should be adopted j(/i") but in other 
 cases the words " vi ct annis" or with force and arms, are suf- 
 ficient.(/) 
 
 When iinmc- ^j^ injury is considered as immediate when the act complain- 
 iliate or cou- ^ ^ ^ 
 
 sequential. ed of itself iiwCx not merely a consrc/iitnce of that act, occasions 
 
 the injury ; thus if a blow be given by one to another, or he 
 drive a carriage and horses against him or his property,(i{r) or 
 if he pour water on anotlier pei'son or his land,(/) or do any act 
 thereon ;o/z) or if a wild beast or other dangerous thing be 
 turned out or put in motion, and mischief immediately en- 
 sue ;(n) or if a log be thrown into a highway, and in the act of 
 throwing or falling, hit another, the injury is immediate, and 
 trespass is the remedy :(&) and where a lighted squib was 
 thrown in a market-place, and afterwards thrown about by others 
 in self-defence, and uhimately hurt the plaintiff, the injury was 
 considered as the immediate act of the first thrower, and a tres- 
 pass ; the new direction and new force given it by the other 
 ^ 126 persons not being a new trespass, *but merely a continuation of 
 
 (f) 3 EI. Com. ^'2%S. {h) 8 T. U. 357. 378. 
 
 ((/) 1 B. & P. 47{). Ld. Ilaym. 18S. (/) Id. ibid. Ante, 123. n. x. 
 
 (f ) 2 Saund. 47. k. 1. {k) 3 East, 5<)3. 597. 
 
 (./') Ero. Abr. Act. Surlc Case, pi. (/) 2 Ld, Raym. 1403. 
 
 36. ' Filz. N. B. 93. Bac. Abr. Trcs- (w) 1 Ld. Raym. 188. 
 
 pa.ss. (Ji) 3 East, 59G. 
 
 (j) 8 Co. 146. (o) 1 Stra. 633, Ante, 122.
 
 OF THE FORM OF ACTION. 126 
 
 the original force ;(/0 and where the defendant driving his car-' Xauirc of in- 
 riageon the wrong side of a road, when it was dark, by accident ''"j}^:i:r.io. 
 drove against the plaintiff's curricle, it was holden that the inju- 
 ry which the plaintiff had sustained, having been immediate from 
 the act of driving by the defendant, the proper remedy was tres- 
 pass.(y) 
 
 But where the damage or injury ensued not directly from the 
 act complained of, it is termed conse'jwntial 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 fallen, another tum- 
 ble over it and be hurt, the injury is only consequential and the 
 remedy should be case :(r so if a person pour water on my 
 land, the injury is immediate ; but ilhe stop up a water-course 
 on his own land, or if he place a spout on his own building, in 
 consequence of which water afterwards runs therefrom into my 
 land, the injury is consequential, because the flowing of the ruin 
 water which was the immediate injury, was not the wrongdoer's 
 immediate act, but only the consequence thereof, and which 
 •will not render the act itself a trespass, or an immediate 
 wrong.(s) 
 
 It is chiefly in actions for running down ships, that difficulties 
 occur, because the force which occasions the injury is not in 
 such case necessarily *ihe immediate act of the person steer- ^ J 27 
 
 ing, for the wind and waves may and generally do occasion the 
 force, and the personal act of the party rather consists in put- 
 ting the vessel in the way to be acted ujion by the wind, and the 
 injury might even have happened from the operation of the wind 
 and tide counteracting his efforts. (w) In the case of injuries 
 arising from driving carriages or navigating ships, if the injury 
 were immediate, and be stated in the declaration to have been 
 luilfnlly committed, or appear to have been so on the trial, the 
 remedy must be trespass ;(u') but if the injury were attributa- 
 ble to negligence, though it were immediate, the party injured 
 
 (/>) 3 Wils. 403. 2B1. IJcp. 892. (.«) Stra. 0.34, 5. Lil. Riym. 1399- 
 
 S T. R. 190. 2 Burr. It 14. 
 
 (9) 3 East, 593. 2 New Rep. 117. (w) 3 East, GOl. 603.. 8 T. R. 192. 
 
 (j-) 3 East, 602. ! Stia. 030. 5 1 B. k P. 4r6. 
 
 T. R. Gi9 («) 8 T. R. 188. 5 East, 601.
 
 127 OF THE FORM OF ACTION. 
 
 Aafnre of in- has an election, either to treat the ne^liq;ence of the defendant 
 DelictQ. as the cause of action, and to declare in case ; or to consider the 
 act itself as the injury, and to declare in trespass.(jr) In Scott 
 V. Shepkerd^iy) Mr, Blackstone said, that a person may bring 
 trespass for the immediate injury, and subjoin a per quod for the 
 consequential damage, or case for the consequential damage, 
 passing over the immediate injury ; and in Pitts v. Gaince and 
 another.Cr where the declaration was in case, and stated that 
 tlie plaintiff was master of a ship laden with corn, ready to sail, 
 
 * 128 s"d that the defendant seized the *ship and detained her, where- 
 
 by the plaintiir was prevented from proceeding in his voyage, 
 an exception was taken that the declaration should have been 
 trespass, and several cases weie cited ; but Lord Holt observed 
 that in those cases, the plaintiff had a property in the thing taken, 
 but here th,e ship was not the master's, but the owner's ; the 
 master only declared as a particular officer, and could only re- 
 cover for his particular loss, yet he might have brought tres- 
 pass, as a bailee of goods may, and declared upon his posses- 
 sion, which is sufficient to maintain trespass Hence it appears 
 that either trespass or case, may sometimes be supported where 
 there is both an immediate and also a cojisequentiul m'nwy .{a') 
 
 J^egality of an The legalitxi or illegality of the original act is not in general 
 orijjiiud act . . " . . ... 
 
 ngc material, the criterion whether the injury was immediate or conseqvien- 
 - i lial, or w^hether the remedy should be trespass or case ;{b) for 
 
 a person may become an immediate trespasser vi et armis, even 
 in the performance of a lawful act, if in the course of such per- 
 formance he be gi'.ilty of nep;lect, as if he hurt another by acci- 
 dent, yet he is answerable in trcsix'.ss vi et armis, as for an imme- 
 diate injury ;(c) so case Avjll lie for doing an unlawful act, if the 
 damage sustained thereby he not immediate but consequen- 
 
 '4: 129 tial ;CfO however, if the injury were *under regular process, as 
 
 (x) 2 New Eep. 11". S T. R. Mod. ISO. 1 semi), contra. 2 Xew 
 
 1S8. 3 East, 601. 1 B. k P. *7-2. Rep. 365.454. 
 
 {y) 2 Bl. Rep. 897. 11 Mod. 180. {!>) 1 Stra. 6,35. n. 2. 3 East, 001. 
 
 4 Co. 94. b. 95. Hob. ISO. Sty. 9.l>. 3 Wils. 409. 2 Bl. Rep. S94. 2 New 
 
 1 B. & P. 475. 2 Burr. 1113. Salk. Rep. 365. 454. 
 JlO. (r) Id. ibid. 3 M'ils. 411. 1 Stra. 
 
 (:) 1 Sfdk. 10. 590. 27 Hen. Yll. i28. a. 
 
 ra)lSaIk. 10. n. a, Sed vide 11 (a') 11 Mod. ISO. 3 Wils. 410,11, 
 
 2 Bl. Rep. 895.
 
 OF THE FORM OF ACTION. 129 
 
 in the case of a malicions arrest ov prosecution, though such .A «?«re «/" <«- 
 
 jiiriea ex 
 
 injury were forcible and immediate, yet the remedy must be " Delicto. 
 case.(f) 
 
 Nor is the it7(ent or clesicm of the wronedoer the criterion, Ii'tfnt. "^•^'cn 
 '^ ^ _ iiiatenal. 
 
 as to the form of the remedy ;(/) for where the act occasion- 
 ing an injury is unlawful, the intent of the wrongdoer is im- 
 material ;{g) and it is clear, that the mind needs not concur in 
 the act that occasions an injury to another, and if the act occa- 
 sion an immediate injury, trespass is the proper remedy wiUi- 
 out reference to the intent ;(//) if, however, in pleading, the in- 
 juiy be stated to have been committed wilfully, and in other 
 respects it be uncertain whether it were immediate or conse- 
 quential, the court will consider it as an immediate injiiry.(/; 
 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,{k) where 
 the defendant, exercising in the trained bands, and firing his 
 iTiusket, by accident hurt the plaintiff; and in Uticlertvood v. 
 JIe'wsov,{l) where one uncocking a gun, it went off, and acci- 
 dentally wounded a by-stander ; and if one turning round sud- 
 denly, were to knock another down, whom he did not see, 
 without intending it, no doubt the *acUon should be tres- * |3() 
 
 pass ;(w) and where a person accidentally drives a carriage 
 against that of another, the injury is immediate, and trespass 
 the remedy, though the defendant was no otherwise blameable 
 than in driving on the wrong side of the road on a dark night. (/i) 
 However, in favour of public officers, who are bound to obey 
 the process of the courts, if a sheriff, after a secret act of bank- 
 ruptcy committed by ^, levy goods under an execution against 
 him, he cannot be s>ued by the assignees in trespass but only in 
 trover, because such public officers ought not to be made trespas- 
 
 (<;) 3 T. R. 185. (0 3 East, 595. 601. 8 T. R. 101. 
 
 (,/■) 3 Wils. 309. 2 Bl. Rep. S3'2. 1 East, 109. 2 Burr. 1114. 
 
 3 East, 599. 001. (k) Hob. 134. 
 
 (5-) CEast, 464. 473,4. 2 East, (/) I Stra. 596. 
 
 107. (m) Per Ld. EUcnboroiigh, and 
 
 (A) Per Lil. Kenyon, 8 T. R. 190, Lawrence, J. 3 East, 595, 6. 
 
 3 East, 599. 001. (n) 3 East, 593. Qu. 2 New Rep 
 
 119.
 
 130 OF THE FORM OF ACTION. 
 
 Mature of in- scrs by relation ;(o) aiul in some other cases, though the intent 
 "^^DeUcto^ may not be material to the form of action, it may .decide whether 
 any action be sustainable, as if the intent be felonious. >vhen the 
 civil remedy may be merged in the ^lony, or where words /ir/- 
 ma facie slanderous were not spoken maliciously; and in some 
 cases of involuntary trespasses to land, committed not by the 
 party himself but by his cattle, a tender of amends may be 
 pleaded. (/z) 
 
 For some torts which may pritna facie appear to be forcible 
 and immediate, as for an excessive distress,(y) or for driving a 
 distress out of the county in which it was taken, (r) or for in- 
 juries to personal or real property in reversion,(.s) or against a 
 ''^ 131 bailee of personal property *having an interest therein, and who 
 has injured the siime, but not destroyed it,(/;) an action on the 
 case is the proper remedy : so though a master may be liable 
 to compensate an immediate injury committed by his servant 
 with force, yet the action against him must be case, though 
 against the servant it should be trespass. (u) 
 Summai-y of From this concise view of the nature of injuries ex delicto^ 
 votnis' ' oir' ^^ '^^'^^^ ^s from the following observations on the properties of 
 vliich the gjich particular action, it may be collected, that there are four 
 
 lorm of ai'tion *^ ... 
 
 may depend, leading points to be attended to, in deciding what form of ac- 
 tion should be adopted. First., the nature of the matter or thing 
 affected ; secondly^ the plaintiff' 's right thereto ; thirdly^ the 
 means by whiqh the injury was effected; axid fourthly, the si- 
 tuation in which the defendant stood. 
 
 And first, the nature of the matter or thing affected ; as 
 whether it were substance or tangible, as the body, personal 
 chattels, and real property corporeal ; or not tangible, as health, 
 reputation, and real property incorporeal. In the first instances 
 as the property might be afTected immediately by an injury 
 committed with force, trespass, case, replevin, trover, or de- 
 tinue, may or may not be sustainable, depending on the other 
 
 (o) 1 Ran-. 20. 1 T. R. 4S0. t (;•) Id. Ibid. 2 Inst. 106. 3 Lev. 
 
 Lev. 173. 'IT. 2Su-a. 1272. 
 
 {p') 21 Jac. I. c. 10. s. 5. Vin. Abr. (&) 4 T. R. 489. 7 T. R. 9. Covo- 
 
 Trospass, 5i2. 3 Lev. 37. Dig. Action on Case, Nuisance, R 
 
 (o) 52 Hon. III. c. 4. 3 Rl. Com. (t) Bac. Ab. Trespass, B. 
 
 12. ' 2 Su-a: 851. I Burr. 599. Fitzg. (w) 1 East, 108, 
 85.
 
 OF THE FORM OF ACTION. 131 
 
 three points, and the painicular propcriies of each action ;(iy) ^'^-.ture of in- 
 
 *^ , . . juries ex 
 
 but in the latter instances, an action on the case is in general Uelicio. 
 the only remedy, because the property could not be injured 
 immediately by force. 
 
 *<S£'cowc//z/, the nature of the plaintiflF's 77^//Mo the matter or * 132 
 thing affected ; as if in the person, whether it were absolute or 
 relative, in the latter instance, case being sustainable, however 
 forcible the hijury ; or if to personal or reul property, whether 
 it were in severalty or joint-tenancy, or in common, or in pos- 
 session or reversion ; in the last instance, neither trespass, tro- 
 ver, replevin, nor detinue, could be sxipported, but only case.(jr) 
 
 Thirdly, the means by which the injury was effected ; as 
 whether it were a commission, or an omission, in the latter 
 case, trespass is not in general sustainable ;(!/) or with or with- 
 out force, actual or implied, for if without force, case is in gene- 
 ral the remedy ;(z) or immediate or consequential ; in the lat- 
 ter case, trespass is not sustainable ;(a) or whether the injury 
 were committed by the defendant himself, or by his agent or 
 servant, or by his cattle, or property, (A) or under colour of a 
 distress for 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 ;(c) or whether there were any privity of con- 
 tract between the plaintiff or defendant, in respect of the latter 
 being tenant or bailee, when in general, trespass cannot be sup- 
 ported.(a') Keeping in view these important points, we will 
 proceed to consider the *nature and particular applicability of * 133 
 the several actions in form ex delicto. 
 
 (w) Replevin lies only for personal (z) Ante, 122, 3. 
 
 property, anil not for taking patt of (a) Ante, 122. 125, 6. 
 
 the freehcUl. 4 T. K. 504 (6) Ante, 131. 
 
 (x) 7 T. R. 9. (c) Ante, C6. 2 Saund. 47. g. 
 
 ^j) Ante, 124 {d) Post, Bac. Ab, Trespass, E
 
 ,133 OF THE FORM OF ACTION. 
 
 / ACTIO.Y O.V THE CASE. 
 
 I. On the case. We havc seen that this action is so termed, as distinguish-* 
 ing the remedy from the brevia formata.(^e) In its most com- 
 prehensive signification, it includes assvm/isit as well as an ac- 
 tion in foim ex d.^licto ; but at the present time, when an ac- 
 tion on tlie case is mentioned, it is usually understood to mean 
 an action in form ex delicto ; and therefore, where a navigation 
 act enacted that the company might sue for calls, Sec. 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 bcnefiit of a sel-ofi'.(y') 
 
 Actions on tlie case are founded on the-common law, or upon 
 acts of purliunient, and lie generally to recover damages for 
 toj'is not committed with force actual or implied, or having been 
 occasioned by force, where the injury was not immediate but 
 eonsequcntial, or where the interest in the matter affected is only 
 in reversion when trespass is not sustainable. (g") Torts of this 
 
 ■^ 154 nature are to the absolute or relati^ rights *of Jiersojis^ or to 
 personal firofiertij in possession or reversion, or to real property 
 corporeal or incorporeal, in possession or reversion. These 
 injuries may be either by notifcasaiice or the omission of some 
 act which the defendant ought to perform ; or by nn.-^fcasancey 
 being the improper performance of some act which might law- 
 fully be done ; or by malfcasurice., the doing what the defendant 
 ought not to do ; and these respective torts are commonly the 
 performance or omibsion of some act contrary to the general 
 obligation of the law, or the particular rights or duties of the 
 parties, or of some express or implied contract between them. 
 This action is not confined to injuries merely ex delicto, it is a 
 concurrent remedy with assuDt/isit for many breaches of con- 
 tract, not merely for the payment of money, whether the breach 
 were no?ifcaiauce, 7niifcasance, or malfeasancc.Qi) Thus case 
 lies upon an express agreement for obstructing the. piuintiff in 
 the enjoyment of an casement, which the defendant stipulated 
 
 (e) Ante, S3, 4, 5. 09. 72. Fitz. X. B. 94. a. l4o. g. 1 
 
 (/■) 7T. li. o6. New Rep. 4r. 6 East, 33.5. .3 Wils 
 
 (5)4T. R. 489. r T. R. 9. 354. 2 WUs. 319. 1 T. R. 374, 
 [Ji) Bro. Abr. Aciiuii ou Ca^e, pi 7.
 
 OF THE I'Oiai 0¥ ACllOxV. j34, 
 
 ihalUie plaintiff should have the benefit of ;(/) and it is al^o a I: Onthecasp 
 proper remedy against bailees for neglii^eucc in the care of 
 i^oodsjU') and it seems that it iies even for noi accountiii^- for 
 the produce of bills delivered to the defendant to get discount- 
 ed.(/) If asmniijir-ilt be adopted, the contract or promise must be 
 formally stated in the declaration ; but in cmsc it is othcrwibe 
 Avhich *circumstance constitutes the principal difference be- ->c- ^35 
 
 tween the two forms of action. ('/O '1 he judgment of Lord 
 Kllenboroug/i, Ch, J. in the case of GoveCtx. Ku<li:hlgc^{n) cx- 
 I)lains the advantages arising in many instances from the adop- 
 tion of the action on the case, in preference to the acdon of 
 assiunjisic ; viz. " there is no inconvenience in sutlering the 
 " party to allege his gravamen as a breach of duty, arising out 
 " of an employment for hire, and to 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 allovving it to be consider- 
 " ed 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 ; aijd^the plainliff, according as the con- 
 " venience of his case recpures, frames his principal count in 
 " such a manner, as either to join a count in trover theresvith, 
 " if he have another cause of action other than the action of 
 " assumpsit^ or to join with the assiuvji-dt the common counts, 
 '' if he have another cause of action to which they are appiica- 
 " ble ; and other advantages ensue from the adoption of case 
 •■' instead of a&sjimjuit, viz. that in the former aciicn, the de- 
 '' fendant cannot plead in abatement the non-joinder of other 
 " parties as defendants ; and the plaintiff will recover, if he 
 
 '' prove one of several defendants to be liable. "(o) 
 
 . ■ . . * 136 
 
 *Case IS the proper remedy for any injury to the abnolnte -r.^ 
 
 rights (i/"y''''S^"y not immediate but consequential; as for keep- :ibs'-hittlv . 
 
 ing mischievous animals, having notice of their propensiiy ;(/.') 
 
 (i) .5 AVils. .348. {),) .3 Kast, 70. 
 
 (A) .3 East, f:2. 1 T. H. 27 \. (->) 3 East, C2. TO. C East, 3.3.3, 
 
 (/) 1 New Rep. 4r. C East, 3iZ. (/i) Ante, 69, 70. Post, vol. 
 
 (w) Supra, u'lU- (/). C East, 3.5.). 2.3S to 2i(>. 
 Vol.. I. [ 1.3 ]
 
 130 OF THE FORM OF ACTION. 
 
 J.Onthecaso. or for special damaf^e arising from a public nuisance ;(7)(*) 
 but if the injury were immediate, as if the defendant incited 
 his dog to bite another, or let loose a dangerous animal ;(r) 
 or if in the act of throwing a log into a public street, it hurt 
 the plaintiff ;(5) or if an injury be commilted by cattleCO to 
 land, the action should be trespass. Also whenever an injury 
 to a person is e fleeted by regular process of a court of com- 
 petent jurisdiction though maliciously adopted, case is the pro- 
 per remedy, and trespass is not sustainable ;(«) as for a ma- 
 licious arrest ;(to) or for malicious prosecution of a criminal 
 charge before a magistrate or otherwise ;(x) and if the pro- 
 ceeding be malicious and unfounded, though it were instituted 
 in a court having no jurisdiction, case may be supported or 
 trespass ^(ij) formerly it was usual, in these instances, where 
 several persons combined in the prosecution, to proceed' by 
 writ of conspiracy, but the action on the case is now the usual 
 
 '^ 137 remedy. (r) If, on the other hand, the proceeding *complain- 
 ed of were irregular, 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, with- 
 out any information upon oath, it was decided that the remedy 
 against the justice should have been, trespass, and not case ;(«) 
 and though case may be supported for maliciously suing out a 
 commission of bankruptcy, (ii) yet an action of trespass is also 
 sustainable, because if the plaintilT were not subject to the 
 bankrupt laws, the commissioners had no jurisdiction, in which 
 case, tr^'spass is always sustainable if in other respects the in- 
 jury were forcible and immediate. (f) Case we have seen is 
 also the proper remedy, where the right affected was not 
 
 C<7) Post, vol. 2. 240. n. I. {t) Ante, 70. 
 
 (*) Injuries arising from koepin;^ (w) 3 T. R. 185. Boot r. Cooper, 
 
 mischievous animals, and from public 1 T. K. 535. 3 E?p. Rep. 135. Hob. 
 
 nuisances, ulso frequently affect pev- 200. Post, vol. 2. 242. n. m. 
 
 so)ial property ; and on the other (■^^•) Post, vol. 2. 242 to 248. 
 
 hand, many of the wrongs hereafter (x) Post, vol. 2. 248 to 255. 
 
 enunier.ited as aftectinaf personal pro- Q/) 2 "Wils. 302. 
 
 perty,- may also affect persons, as (-) 1 Saund. 228. 230. n. 4. 
 
 negligence in ri<iing horses, and dri- («) 2 T. R. 225. 
 
 ving carriages, &:c. {h) 1 "Wils. l45. 
 
 (r) Ante, TO. (c) 2 Wils. 382.- 384. Cullen's 
 
 (•5) Ante, 125, 6. Bankrupt Law, 412, 413,
 
 OF THE FORM OF ACTION. l37 
 
 tangible, and consequently could not be affected by force, as j.Ontkecasp, 
 i-eputation and health, the injuries to which are always reme- 
 diable by action on the case, as libels, ox verbal slander -,{(1) it 
 is also the only remedy against sheriffs, justices, or other offi- 
 cers acting ministerially and not judiciully,(£') for refusing 
 bail,(/) or to receive an examination upon the statute of hue 
 and cry, &c.(,§-) and case lies against surgeons, agents, Sec. for 
 improper treatment, or for want of skill or care, though as- 
 sumfisit is also sustainable. (/«) 
 
 Actions for injuries to the relative rights of persons, as for To persons 
 •■ ^ . . , relative '.V. 
 
 criminal conversation, seducmg *or harbouring wives, de- ^ log 
 
 bauchingof daughters, enticing away or harbouring apprentices 
 or servants, are properly in case ;(0 though it is usual in de- 
 clarations for criminal conversation to state the injury to have 
 been committed vi et armis, and contra Jiaceni ; and where the 
 action is for an injury really committed with force, as by 
 menacing, beating, or imprisoning wives, daughters, and ser- 
 vants, it is most proper to declare in trespass.(A) 
 
 For injuries to personal property not committed with force. To pei^sonal 
 or not immediate,(/) or where the plaintiff s right thereto is in tbi- breach of 
 reversion,(/«) case is the proper remedy. It lies against attor- ^""^i"^'^^ 
 nies or other agents for neglect in the conduct of a c^.use, or 
 other business, or for not accounting for monies, 8cc. though 
 it has been moi*e usual to declare against them in ussumfi&it :{ii) 
 and though we have seen that assumpsit is the usual remedy 
 for neglect against bailees ;(o) as against carriers, wharfin- 
 gers, and others, having the use or care of personal property; 
 yet case is frequently a preferable remedy, as where it is doubt- 
 ful how many persons ought to be sued, when, by declaring in 
 ctise, a plea in abatement for non-joinder is avoided, and the 
 
 {(1) Post, vol. 2. 25:> to 205. ent precedents, post, vol. 2. 265 to 
 
 (e) Com. Dig. Action Case. Mfs- 271. 
 
 feasance, A. 1. kc. (A?) See the precedents, post, toL 
 
 (/) 2Saund.Cl.c. d. --^ B. Sc P. 2.37410 378. 
 
 ?5l. (/) Ante, 122. 
 
 (5) 1 Leon. 32,3, 4. (w) 7 T. R. 9- 
 
 (A) 8 East, 348. 1H.B1.1G1. 2 (n) 6 Eastj 333. 1 New Rep. 4S. 
 
 AVils. 339. 3 Bl. Com. 122. Reg. Post, vol. 2. 96 to 270, 71. 
 
 Brev. 105. (o) Ante, 9«. Post, vol 2. 108 to 
 
 (0 Sl'C the reasons and the difff-.r- 293
 
 138 OF THE FOllM OF ACTION. 
 
 I. (Jntliccasr. joinder of too many defendants is no ground of nonsuit, and if 
 there be any evidence of a conversion, a count in trover may 
 
 ''^ 139 be added ;(/0 it is also more usual to ^declare in case ai^^ainst an 
 inn-keeper, than in <2s.u^;;06zV.(y) Fonneriy case was the usual 
 remedy fur a false warranty, or other misrepresentation on the 
 sale of goods, 8<;c.('') hut of late, it is more usual to declare in 
 ansuni/i&it, so as to join the count for money had and receiv- 
 ed ;(*) yet case may still be supported, and if there have been 
 any actual fraud, or it be doubtful how many persons should be 
 made defendants, it is tl>e preferable form of action, especially 
 as the sclc7!f.cr, though expressly stated in the declaration, needs 
 not be proved ;(/) and for fiaudulently representing a person fit 
 to be tj'usted, or for other deceit, Avhere there has been no con- 
 tract between the parties, case is the only remedy. (t^) 
 
 We have seen that trespass may be supported against a per- 
 son, even for accidentally driving his carriage against ano- 
 ther's ;(7:') but for the negligent driving of a servant, the mas- 
 ter can only be sued in case ;(.r) and even in the former in- 
 stance, if the injury were really attributable to the negligence, 
 and not to the wilful act of the driver, case might be support- 
 ed ;(y) and it is clearly the proper remedy for an injury occa- 
 sioned by negligence in navigating ships. (z) 
 
 Wlierc a distress has been made for rent, and there was no 
 
 ■* lAO ^^'^^ ^^^^^^ ^^^ action of trespass or *case may be supported on 
 the statute of Willium and Alary ;{a) and if the person ma- 
 king the distress turn the tenant out of possession, trespass 
 lies ;(o) so where a party taking a distress damage feasant, has 
 been guilty of any irregularity, rendering him a trespasser ab 
 initio ;(c) but in the case of a distress for rent, if it were law- 
 ful in its inception, a subsequent irregularity will not render 
 the party a trespasser ub i/iitio, or subject him to an action of 
 
 (/•) Ante, I.gS. 3 East, 6'i. 70.— (.v) I Enst, lOG. 6 T. R. C59. 3 
 
 Post, vol. '2. nn to '270. 11. Hi. 44i2. Post, vol. -2. 281. 
 
 (v) Postj vol. 2. 273,4, 5. (»/) 2 New Rep. 117. Ante, 127- 
 
 (r) Dous;. 21. (;j 8T. R. ISS. 3 East, 599. 210. 
 
 (.v) Post, vol. 2. 100. 213. Post, vol. 2. 283. 
 
 (.') Post, vol. 2. 27C. 2 East, 44G. (a) Post, vol. 2. 2S5. n. m. 
 
 !ii) Post, %-ol.2. 278 to 2.S1. (6) 1 East, 13'J. 
 
 {■.-■) Ante, 12i», 130, 3 East, 503. (c) 8 Co. 146. Bac. Abr. Tres- 
 pass, B
 
 OF THE rORM OF ACTION. 140 
 
 trcspa:5S or trover ;(c/) and case is the proper remedy in these I- On the ca.or. 
 and most other instances of irregularity in the taking, or sale 
 or disposal of a distress.(e) This action also lies for the rescue 
 or pound-breach of cattle, or goods distrained for rent ;(/) or 
 damagt -feasant ;(.§•) or for the rescue of a person arrested on 
 mesne process ;(//) and against sheriffs, Sec. for escapes on 
 mesne or final process ;(/) or for not arresting the debtor when 
 he had an opportunity ;(/:) and for a false return of non est in- 
 ventus to mesne process ;(/) or of nulla b-jua, to a writ of Ji. 
 fa.{m) or for not levying under it when he had an oppor- 
 tunity ;(«) or for not taking a replevin Ijond, or for taking in- 
 sufficient pledges in replevin \{o) or for not assigning a bail- 
 bond. (/O For an escape on final process, it is most advisable 
 to declare in debt, if the caption *of the original defendant * 141 
 
 can be clearly proved, because in debt, the jury must give a 
 verdict for the entire demand ;(y) but if it be doubtful whether 
 a caption can be proved, the declaration should be in case, pro- 
 ceeding for the escape in one count, and in the second for not 
 taking the defendant when the sheriff" had an opportunity ;(r) 
 and the same observation applies when it is doubtful whether a 
 sheriff" has levied under a writ oi fieri facias, or where he has 
 neglected to levy the whole amount. Case also lies for not deli- 
 vering letters, Scc.(6) and against a witness for not obeying a 
 Avrit of subpaMia ;(/) and for infringing the copy-right of a 
 book, print or other work ;(«) and for the infringement of a 
 patent ;(7y) and for injuries to any personal property in rever- 
 sion, trespass, or trover, cannot be supported, case being the 
 only remedy. (x) 
 
 With respect to injuries to real firojierty corporeal, where '^* i''-"' l-'i"* 
 the injury was immediate and committed on land. Sec. in the * 
 
 (d) 11 G. II. c. 19. 1 H. Bl. 13. (,;) Id. 305. 
 
 (c) See tlie cases and preccdL-nts, (/>) I<i. 306 to 311. 
 
 post, vol. 2. '284 to 293. (/j) Id. 311. 
 
 (/) Vol. t>. 293 to 29 r.. ((/) 2 T. R. 120. 1 .S.iurid. 58. n. 2. 
 
 (jf) Id. 296, to 29/". (?) Post, vol. 2. 147 to 149. 303. 
 
 (h) Id. 29" to 299. (s) 3 ^Vils. 443. 
 
 (0 Id. 299 to 39i (/) Doup:. 5;iC. 5f)l. 
 
 (A) Id. 301. In) Post, vol. 2. 313. 317. 
 
 (/) Id. 302. {-,i>) Id. 317 to 320. 
 
 (m) Id. .303. I.c) 7 T. R. 9
 
 141 OF THE FORM OF ACTION. 
 
 I On the case, possession of the plaimifir, the remedy is trespass ;(;/) but for 
 ?io!if('asance, as for not carrying away tithes ;(z) or where the 
 injury is not immediate but consequential, as for placing a 
 spout near the plaintifT's land, so that water afterwards ran 
 theieon, or for causing water to run from the defendant's land 
 to that of the plaintiff ;Ca) or where the plaintiff's property is 
 
 ^ 142 only *in reversion, (a) and not in possession, the action should 
 be in Case. Thus it lies for obstructing light or air through 
 ancient windows by any erection on the adjoining land ;(6) 
 which action may be brought in the name of the tenant in pos- 
 session, or of the pei'son entitled to the immediate reversion, 
 though the form of the declaration differs in the latter case ;(c) 
 so it lies for any other nuisance to houses or lands in posses- 
 sion ;(rf) and for injuries to water-courses where the plaintiff 
 is not the owner of the soil, but is merely entitled to the use 
 uf the water ;(f) and by a reversioner against his tenant or a 
 stranger, for waste by cutting dov.n trees not excepted in the 
 lease, or any other act itijurious to the reversion, though the 
 i-emcdy by the tenant against a stranger would be trespass ;(/) 
 and though assum/i^it we have seen is the usual remedy against 
 a tenant for not cultivating land according to the course of good 
 husbandry, or for not repairing, &:c.(,^) yet for voluntary waste, 
 and particularly where there has been any conversion of trees 
 or other property, case inay frequently be preferable ;(/i) which 
 is also a concurrent remedy with covenant where there has been 
 voluntary waste •,ri\ and it lies upon the custom of the realm, 
 against the personal representatives of a rector, Sec. at the suit 
 
 *■ ]/t.3 of the successor for dilapidations ;(A-) and for not *repairing 
 fences, wherel>y the plaintiff's cattle escaped from his land, or 
 the cattle of the defendant got into the land of the plaintiff ;(/) 
 for the latter injury, however, the plaintiff might support tres- 
 
 (ij) Ante, 122, 3. I LiL Iluym. 188. {r) Id. 537 to 344. 
 
 (;) 1 Ltl. R;iy]ii. 187. ( /) Id. 344. S East, 190. 
 
 («) Ante, 1'2G. Stra. 634, 5. l.d. (g) Ante, 93. Post, vol. 2. 13S. 
 
 Ray m. 1399. 2 Burr. 1114. Fortcst. ISS. 
 
 212. (fi) Post, vol. '2. 34.), 6. 
 
 (fl) Com. Di- Action Case, Nui- (/) 2 Bl. Kcp. 1111. '2 Saund. 252, 
 
 sanco, R. (A.) Post, vol. 2. 346. 
 
 (/.-) Post, vol. 2. 33L (0 1 Sulk. 335. Post, vol. 2. 348. 
 
 (c) Id. n. 4. 330. 350. 
 
 f <7) JW. 331 to 337.
 
 OF THE FORM OF ACTION. 143 
 
 pass or distrain the caltlc damage feasant ; and case is the pe- /• On the case. 
 culiar remedy for mmfcaaance, as not currying awj.y tiuics.Cwj) 
 
 We may remember that trespass cannot in general be sup- 
 ported where the matter afl'ected is not substantial or the cst.ite 
 therein is incorporeal; case therefore is the proper remedy for 
 disturbance of common of pasture, turbary, or estovers ;(?;) 
 though if the plaintiff's cattle be chased off the common, trespass 
 maybe supported for such chasing, and that form of action may 
 -in some instances be advisable in order that the right may bt 
 fully stated on the record ; so case lies for obstructing a pri 
 vate way ;(o) or the plaintiff's right to use a pew, the posses- 
 sion of which is supposed to be in the ordinary, and thcrelbre 
 trespass will not lie unless the plaintiff be actually turned out 
 of possession. (//) So case Ues for disturbance, obstruction, or 
 other injuries to offices, franchises, ferries, markets, tolls, or 
 for not grinding at an ancient mill, &c.((/) 
 
 An action on the case is frequently given by the express 
 provision of some statute to a party aggrieved •,{!•) *and it has ^ lA'^i 
 
 been decided, that where a navigation act empowered the com- 
 pany to sue for calls. Sec. by action of debt or on the case, that 
 an action on the case in tort might be supported, though the 
 defendant were thereby deprived of the means of availing him- 
 self of a set-off ;(;) and whenever a statute prohibits an injury 
 to an individual, or enacts that he shall recover a penalty oi 
 damages for such injury, though the statute be silent as tc 
 the form of the remedy, this action may be supported ;(wS 
 as on the statute 8 Jiin. c. 14. at the suit of a landlord, against 
 a sheriff, for taking goods under an execution, without paying a 
 year's rent j(7f) and on the statute of M'inton,{x) at the suit of 
 
 (>;i) Ante, 124. Post, vol. 2. 350 (r) Com. Dig. tit. Aitiou upon Sta- 
 
 'o 35.1. tute, A. F. and tit. Plciwltr, 2. s. 1. to 
 
 (n) Com. Dij;. Action Case, Dis- 2. s. 50. 
 
 lurbaiice, A. 1. Post, vol. 2. o54 to (?) " T. R. 36. 
 
 J>8. (7/) .\iite, 143. n. r. 10 Co. "5. li. 
 
 (0) Com. Dig. Action Case, Dis- 2 Inst. 486. 2Salk. 451. Mod. 20 
 
 lurbance, A. 2. Post, vol. 2. 358. (^y) Doiijj. 665. 
 
 (/>) I T. It. 4.30. (.r) 13 E.lw. 1. Stat. 2. c. 1,2. 2 
 
 (<?) Cqm. Dij,'. .\ctioii Case, 13is- Saund. 574, 5. Com. Dig. Pluader, 2. 
 
 Uii-bunce, and Action Case, Is'ui- s. 1. 
 lauce ; and Pobt, vol. 2. 303.
 
 144 Ol' THli FORM OF ACTION. 
 
 T.Onthcca:.'. a party robbed, against the hundred; or upon the riot act;ri/) 
 or on diflercnt statutes, rchitivc to irretjukiritics in nraking or 
 disposing of a distress, Scc.(z) in Avhich and other instances, 
 case may be supported by implication ;(a) and if a statute give 
 a remedy in the affirmative, without a negative expressed or 
 impUed, for a matter which was actionable by the common huv, 
 the party may sue at common law, as well as upon' the sta- 
 tute, (<i>) but in some instances the <;ommon law remedy is altered 
 by a statute, as by the 43 Geo. 1 1 1, c 141. which enacts, that in a^j 
 
 * 145 actions against any *justice of the peace for any conviction, Ecc. 
 which may have been cjuashcd, or for any matter done by him 
 for carrying it into efTcct, the plaintiff shall not recover more 
 tlian the suni levied under the conviction, and 2d, damages, un- 
 less it be expressly alleged in the declaration, which shall be in 
 an action on the case only., that such acts were done nialiciouslv 
 and without any reasonable cause. We have seen tliat no ac- 
 tion can be supported by a common informer, unless he be ex- 
 pressly autlioriscd to sue.(:) 
 
 "We may collect from the preceding observations, that the 
 plaintiff frequently has an election either to proceed in an action 
 on the case, or trespass, or a.',sin.'!/usi(.(d) Tlierc arc advanta- 
 ges attending the adoption of an action on tlie case, instead of 
 the other forms of action ; thus, in an action on the case the 
 plaintilT is in general entitled to full costs, though he recover 
 less than 40.?. danuigcs, whereas in some aclicns of trespass to 
 the person or to land, if the damages be under 406', the plain- 
 tiff is not entitled to full costs ;(c) so by declaring in case in- 
 stead of assum/isic.) a defendant may be precluded from availing 
 himself of his bankruptcy and certiiicate.,(y) or of a set-off, or 
 of the circumstance of too few or too many persons being made de- 
 fendants ;(50 a count in trover may also be frequently added with 
 advantage, and the pleadings being more concise in this action, 
 are in general less expensive than those in the action of tres- 
 
 ((/) 9 Geo. I. c. 2-2. s. ". 3 East, (6) Com. Dig. Action in>on Statute. 
 
 40U. 4,ir. ('■ 
 
 (r) Pest, vol. 2. '2S4 to '."J.i. " (<) Ante, 105. 5 East, 313. ♦ 
 
 (fl) Or where tlie dt-maiul is for a (f/) Com. Dii^. Action, M. 
 
 sum cerliiin, or for treble c!amnge.s, (e) 6 T. ]i. VZO. 
 
 &c. debt also may be supported. (/) C T. R. 095. 
 
 ..\ntc, lO.i. l,d. lliiym. 0S2. (V) 7 T. H. 5G, i> East, TO.
 
 OF THE FORM OF ACTION. *145 
 
 |)ass. On the other hand, there are some disadvantages *attend-" / On the case. 
 ing the action on the case, on account of the generality ot the 
 pleadings, and of the circumstance of the general issue being 
 the usual plea, which puts the plaintiff on proof of the whole of 
 the allegations in his declaration, and leaves the defendant at li- 
 berty to avail himself of any matter of defence at the trial, with- 
 out apprising the plaintiff by his plea of the circumstunces on 
 which it is founded. Thus, where cattle of the defendant have 
 trespassed in the plaintiff's land, in consequence of the defend- 
 ant's neglect to repair his fences, the plaintiff has an election to 
 proceed in case, or in trespass, (/;) or to distrain ; if the real da- 
 mage exceed 40a'. 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, (z) nar- 
 rowing tlie evidence more than in the action on the case ; and it 
 is not advisable to distrain, where the title to the locua in quo 
 is doubtful, but the party should proceed by action of trespass, or 
 on the case,(/?.-) and the same observations arc applicable wisere a 
 right of common is in dispute. (/) 
 
 The declaration hi an action on the case, ought not in general 
 to state the injury to have been committed vi et armin^ nor should 
 it conclude contra jiaccm ;{m) in which respects it pvincipaily dif- 
 fers from the declaration in trespass. In other points the form of 
 the declaration depends on the particular circumstances on which 
 the action *is founded, and consequently there is greater variety in ^ I47 
 this than any other form of action. The leading rules will be sta- 
 ted when we inquire into the form of the declaration in general. 
 'jih&pka in this action is usually the general issue, not guilty ; 
 and under it (except in an action for slander and a few other 
 instances)(?j) any matter may be given in evidence, but the 
 statute of limitations. The judgmeht is, that the plaintiff re- 
 cover 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 v»iach the plaintiff is entitled, although 
 
 (/i) 1 Salk. 358. {in) Com. Dig. Action on Case, ( 
 
 \i) 2 S.iuiid. *-'S4. (1. 3. 4. A. 
 
 {k) 1 Saund. 340. e. n. Q. (h) 1 Sauivd 13<5. a. 1. Willcs, 20. 
 
 (/) Id. ibid. 
 
 Vol. I. [ 14 ]
 
 147 *^>F THE FORM Oi ACTION. 
 
 lAhitheciise. hc recover a verdict for less than 40s. damages ;(o) unless the 
 jiulye certify under tiie statute 43 KHz. c. 6.(//) a circumstance 
 wiiicli we have already observed frequently renders tnis action 
 preferable to that of trespass. 
 
 //. TROVER 
 
 It. Trover. The action of trover and cojiversion was in its origin an ac« 
 tion of trespass on the case, for recovery of damages against a 
 person who had found goods and refused to deliver them on 
 demand to the owner, Imt converted tliem to his own use ; 
 
 * 148 from which word Jindvig.,(^(j) the remedy is called *an action 
 
 of trover. The circumstance of the defendant not being at 
 liberty to wage bis law in this action, and the less degree of 
 certainty requisite in describing the gooils, gave it so consider- 
 able an advantage over the action of detinue ihat by a fiction 
 of law, actions of trover were at length permitted to be 
 brought against any person who had in his possession, by uny 
 means whatever, the person.il propt-rty oi another, arm sold 
 them or used them without the consent of the ownor. or re- 
 fused to deliver them wiien demanded. The injury iits in the 
 conversion, which is the gist of the action, and tlie fact of the 
 finding or trover is now immaterial, and not traversable ; r) 
 and it is tor the recovery of damages to the value of the thing 
 converted, and not the thing itself, which can only be recover- 
 ed by action of detinue or replevin. («) Lord Mun.Jield thus 
 defined this action :(/) "• Inform it (i. e. the trover) is a fiction j 
 " 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 plain- 
 " tiff w^aives the trespass ; no damages are recoverable for the 
 
 (o) Ante. 6T. R. liO. Tidd's Rop. 140. Bull. N. P. 32. 3 Wils. 
 
 Prac. 3<1 edit. 880. 3.i6. 
 
 (/i)Tidd, SrO. (,s-) Id. ibid. Wdles, 120. 
 
 (7) Or troin<er in French. {t) Cooj)er v. (jhilty, 1 Burr. 31; 
 
 (r) 3 Bl. Com, 102, 3. I New 1 lil. Rep. %7, 8.
 
 OF THE FORM OF ACTION-. 148 
 
 « act of taking ; all must be for the act of converting. This II. Trover. 
 *' is the tort or mal'Jicium^ and to entitle the pUuntitf to recover, 
 « two things are necessary : 1st. Property in the plaintiff; 2dly. 
 " A wr )ngful conversion by tlie *defcndant." We will consider * 149 
 
 tbis action with reference, 1st. To the thing converted ; 2diy. 
 The plaintiff 's right or property therein; and, 3dly. The na- 
 ture of the injuiy, and by whom committed. 
 
 This action is confined to the conversion of some persovMl 1st. The pro- 
 chaftel, and it does not lie for injuries to land or other real ^.^^ 
 property, even by a severance of a part from the freehold, tm- 
 less there be also an asportation ; and tresp.tss, or case where 
 the interest in the property is in reversion, are the only re- 
 medies. (m) But if after severance from the freehold, as in the 
 case of trees, the property severed be taken away, or if coals 
 dug in a pit be afterwards thrown out, trover may be support- 
 ed. (w) It lies for money, though it be not in a bag, or other- 
 wise distinguishable from other coin, because the thing itself 
 is not to be recovered in this action, but inerely damages for 
 the conversion, (-r) and where money has been paid by a debt- 
 or, in contemplation of his bankruptcy, by way of fraudulent 
 preference to his creditor, the assignees should proceed for the 
 recovery thereof in trover, or by bill in equity, and not by 
 action of assumfisit^ for money had and received, because by 
 adopting the latter form of action, they might enable the de- 
 fendant to avail himself of his original debt as a set-off ;(i/) and 
 *the same observation applies where the defendant has convert- ^ 150 
 ed the produce of a bill. Sec. and has become bankrupt, and ob- 
 tained his certificate :(z) in other respects, trover in general 
 lies for the conversion of any personal property in which the 
 plaintiff has a general or special property ;(a) but it does not 
 lie for the conversion of a record, because a record is not pri- 
 
 00 Cro. Jac. 129. 2 Mod. 24-V. (.r) Viii. Abr. Action, Trover, K. 
 
 Bull. N. P. 44. Bac. Abr. Trover, Bac. Abr. Trovei-, U. 
 
 B. 4T. U. 504, 5. Co. Lit. 145. (j/) 4 T. R. 'ill. 2 H. Bl. 135. 
 
 Uullock's Law of Co.sts, C4 to 90. (z) C T. It. 695. 
 
 (w) Xoy, 125. Sir W. Joues, 245. (a) For wiiat it lies in general, see 
 
 3 Wils. 336. 7 T. R. 13. Com. Dig. Com. Dig. Action, Case, Trover, C. 
 
 Bicns, H. Bac. Abr. Trover, B.— Bac. Abr. Trover, D. Vin. Abr. 
 
 Bull. N P. 44. 2 Mod. 2*4 Action, Trover,' K. Bull. N. P. 32 
 
 tp 49.
 
 150 OF THE FORM OF ACTION. 
 
 11. Trover, vate property ; but it may be supported for the copy of a re- 
 cord, which is private property. ((5) 
 2dlr. The I" order to support this action, the plaintiff must at the 
 
 f!"'"!''^ '^ '"' time of the conversion have had ?i property in the chattel, 
 either general or sfiecial ;{c) he must also have had the actual 
 possession, or the rig-/it to immediate possession ; and therefore 
 •where goods leased as furniture with a house, Avere wrongfully 
 taken in execution by the sheriff, it was decided that the land- 
 lord could not maintain trover against the sheriff pending the 
 lease, but should have declared specially in an action on the 
 case ;(f/) but a landlord has such an implied possession of tim- 
 ber wrongfully cut down during a lease, as to enable him to sup- 
 port trover if it be removed. (f) The person who has the ab- 
 soiuie or general property in a personal chattel may support 
 this action, although he has never had the actual posses- 
 sion ; for it is a rule of law, that the general property of per- 
 * \S\ sonal chattels *creates a constructive possession ;(y') and where 
 
 a person has delivered goods to a carrier or other bailee, who 
 has not the right to withhold the possession fiom the general 
 owner, and so parted with the actual possession, yet he may 
 maintain trover for a conversion by a stranger, for the owner 
 has still the possession in law against a wrongdoer, and the 
 carrier or other bidlee is considered merely as his servant ',{g) 
 and an executor or admitiistrator is by legal construction pos- 
 sessed of the goods of the testiitor, or intestate from the time 
 of his death.(/0 So a person, having a special property in the 
 goods, may support trover against a stranger, who takes thera 
 out of his actual possession, as a sheriEf,(/) a carrier,i^^-) a fac- 
 tor, consignee, pawnee, or trustee, or an agister of cattle, or 
 any other person who is responsible over to his principal ;(/) 
 but a mere servant cannot support this action. (w) In general 
 also a special property is sufficient to support trover against a 
 
 (5) H:u-(l!-. 111. (5-)"T.R. 12. 2 Srmnd. 47. b. 
 
 (c) -iSaund. 47. a. n. I. 1 T. li. (/') 7^ T. R. 13. Latch. 214. 2 
 
 60. SauiuT. 47. b. 47. k. 
 
 (r/)7T. R. 9. 3 Lev. 209. (/) 2 SauiKl. 47. 
 
 (e) 7 T. R. 13. 1 Sauiid. 322. n. 5. (A) t RoH. Abr. 4. 1 Ld. Raym 
 
 Com. Dig. tit. Biens, IL 276. Bull. X. P. 33. 
 
 (/) 2 Saund. 47. a. n. 1. Bac. (0 2 Saund. 47. b. 
 
 Abr. Ti-oyer, C. 3 Wils. 33G. \m) Owen, 52.
 
 OF THE rORM OF ACTION. 15 X 
 
 stranger, who has no better title ; and the bare possession of 77 Trwer. 
 goods whether lawfully obtained or not, \^ firima facie evidence 
 of property. («) In general it has been considered that in the 
 case of a special property, it n^.ust have been accompanied Avith 
 possession in order to support trover :(o) *but where the per- ^^-^ 
 
 son having such special property, has also an interest in the 
 goods, there are exceptions ; and, therefore, it was observed 
 by Eyre, Ch, J.(/0 that it is not true that in cases of sjiecicd 
 property the party must once have had possession in order to 
 maintain trover ; for a factor to whom goods have been con- 
 signed and who has never received them, may maintain such 
 an action : however, without such absolute or special property, 
 this action cannot be maintained ; therefore, as Ave have seen, 
 trover cannot be supported by a party in a suit for a record,((/) 
 nor can a tenant in tail expectant on the determination of an 
 estate for life, without impeachment of waste, bring trover for 
 timber which grew upon and was severed from the estate ; for 
 such a tenant for life has a right to the trees immediately, when 
 ihey are cut down ;(r) and the plaintiff' must not only prove that 
 the goods which are the subject of the action are his property, 
 but also that they were so when they were converted. (&) In 
 the case of a general as well as special property, the action may 
 in most cases be brought either by the general or special own- 
 er, and judgment obtained by one is a bi.r to an action by the 
 other.(0 
 
 With respect to the nature of the iiyjnrij, we have already :h\w. The iii- 
 ocen that a conversioii is essential to the support of this ac- •''"'•^ 
 tion.(w) It would be foreign to our present invjuiry into the 
 application *of the action of trover, to state minutely the dif- ^ 153 
 lerent instances of conversions.', t:') 'Jhey may be either, 
 1st. By a zvroTi^g-ful ta.{-i/ig a personal chattel; 2(IIy. By some 
 other illegal assumption of ownership, or by illegally zaing- or 
 7nisu'siT!g- it ; or, 3dly. By a ivro7ii^ful dttcntion. 
 
 («) 2 Saund. 47. c. aud d. 1 V.a%\, (r) 1 T. R. 55. 
 
 ->^- (.v) 2 T. R. 750. 
 
 (o) 4Ea.st, 214. (f) Ante, 48. 
 
 (/O 1 B. & P. 4r. 2 Sauad. 47. d. \>i) Ante, 14S. 2 Ssnnd. 47. c— 
 
 .« e I5;ic. Abr. Trover, C. 8 T. \l. 1 Burr. .31. 1 Bl. Rep. 67, 8. 
 
 --■ (-if) See the instances, Bac. Abr. 
 
 (7) Ante, 150. Trover, B. 2 Saiind. 47. r.
 
 153 OF THE FORM OF ACTION. 
 
 //. Trover. The ioro7ig'/ul taking of the goods of another who has the 
 right of immediate possession is of itself a conversion, and 
 whenever trespass will lie lor taking goods of the plaintiff 
 wrongfully, trover will also lie :(jc) and if goods be wrong- 
 fully 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 be- 
 ing seized as a distress. (?/) In the case of a conversion by 
 wrongful taking, it is not necessary to prove a demand and re- 
 fusal.(z) 
 
 So the tvrongful assumption of the fvrofierty, and right of dis- 
 posing of goods may be a conversion in itself, and render a de- 
 mand and refusal unnecessary. (a) Thus a sale of a ship, 
 which was afterwards lost at sea, made by the defendant, who 
 claimed under a defective conveyance from a trader before his 
 bankruptcy, is a sufficient conversion to enable the assignees 
 of llie bankrupt to maintain trover, wiihout shewing a demand 
 
 * 154 ^^^ refusal :{b) so where a person entrusted with the *goods 
 
 of another, puts them into the hands of a third person, with- 
 out orders, it is a conversion :(c) and where a carrier by mis- 
 take delivered goods to a wrong person, it was decided that 
 trover might be supported, though it would have been other- 
 wise had they been lost by accident :((/) and if a person ille- 
 gally make use of a thing found or delivered to him, it is a 
 conversion in itself \{e) or if a bailee, merely to keep or carry, 
 and having no beneficial inierest, misuse a chattel entrusted to 
 him ;{/) as if a carrier draw out part of the contents of a ves- 
 sel, and fill it with w.iter,(^) or if a carrier or wharfinger 
 break open a box containing goods, or sell them.(/j) So an 
 irreguUuily in a distress taken damage feasant may amount to 
 a conversion, (/) though not in the case of a distress for rent. 
 
 (x) 3 Wils. 33. Willes, 55. 3 (</) Peake, C. N. P. 49. 5 Bitq-. 
 
 Saimd. 47. k. 2825. 
 
 (?/) Willes, 56. (f) Cro. Eliz. 213. 
 
 (:) I Sid. 1G4. 6 Mod. 212. Bull. (/)ld.ibid. 
 
 N. P. 44. Is) I Stva. 576. 
 
 (a) 5 East, 407. C East, 540. \h) 2 Snlk. 655. 
 
 \b) 5 East, 407.420. (0 Cro. Jac. 148. Bac. Abr..Tr(»i 
 
 \c) 4T. W. 2f)4. 260. Tor, B,
 
 OF THE FORM OF ACTION. 154 
 
 when trover cannot be supported :(-() and we have seen that a 11: Trovei- 
 party will be personally liable for a conversion to the use of 
 another.(0 But unless there be an illegal assumption of pro- 
 perty, trover cannot in general be supported for a mere non- 
 feasance i{m) and therefore if a carrier or other bailee by neg- 
 ligence lose goods entrusted to his care, the remedy in gene- 
 ral must be case or assumpsit .{n) 
 
 In the preceding instances, proof of the act of the defend- 
 ant is sufficient without evidence of a *demand and refusal ; ^155 
 but where the plaintiff is not prepared to prove some such ac- 
 tual assumption of property, trover cannot be supported with- 
 out proof of a demand and refusal, or at least a neglect to de- 
 liver the goods ;(oJ and where a trader, on the eve of his bank- 
 ruptcy, made a collusive sale of his goods to the defendant, it 
 was decided that the assignees could not maintain trover witlv 
 out proving a demand and refusal ;(/i) such a demand and non- 
 compliance are Jirima facie evidence of a conversion, and will 
 induce a jury to fmd it, unless the defendant adduce evidence 
 to negative the presumption, as that he being a carrier, &c. lost 
 the goods by negligence, &c.(<7) When it is doubtful -whethe? 
 the evidence will establish a conversion so as to support a 
 count in trover, a count in case for negligence, Sec. should be 
 added, if there be any proof to support it. (7-) If there have 
 been a conversion, trover lies, although the goods converted 
 be afterwards restored to the owner, for the restoration only 
 goes in mitigation of damages. («) 
 
 In considering the parties to actions in form ex delicto, we 
 have necessarily seen who are to sue and be sued in an action 
 of trover either as between tenants in common, or husband and 
 wife, &c (/) and it is only necessary here to observe, that one 
 joint-tenant or tenant in common or parcener cannot support 
 
 (/r) 1 H. Bl. 13. (y) Bull. N. P. 44. 2 Saund. 47. <. 
 
 (0 Aule, 72. Piuke's Law of Evidenc.-, 'i98. 
 
 (m) 6 East, 540. (r) See the precedent, post, vol- 
 
 (71) 5 Burr. 28:25. 2 Saund. 47. e. 2. 270 to *276. 
 
 FcHkc, C. X. P. 4y. (ff) 2 Roll. Abr. 5. pi. 1. C .Mo^. 
 
 (0) Bull. N. P. 44 2 Saund 47 e. 212. Bull. N. P. 46. Bac. Abr. 
 
 (/») a H. Bl. 135. Trover, D. Accord, A. 
 
 (0 Ante, 6C. 82.
 
 156* OF THE rORM OF ACTION. 
 
 //. Trover, trovcv against his co-tenant, *iinless the latter have destroyid 
 the chattel. (t') 
 
 We have seen that for a wrongful taking in general, trover 
 is a concurrent remedy with trespass ^{iv) but the converse 
 does not hold, for trover may often be brought wiiere trespass 
 cannot ; as, where goods are lent or delivered to another to 
 keep, and he refuse to deliver them on demand, trespass doeS 
 not lie, but the proper remedy is trover.(.r) So where the 
 taking is lawful or excusable, trespass cannot be supported, 
 and the action must be trover ; as where a sheriff", after a se- 
 cret act of bankruptcy, levies goods under an execution against 
 the bankrupt. (</) 
 
 The dcclaraiion(z) in this action should state that the plain- 
 tiff was possessed of the goods (avoiding repetition and un- 
 necessary description) as of his own Jiro/ierty, and that they 
 came to the defendant's possession by gliding ; but the omis- 
 sion of the former words is not material after verdict :(o) and 
 the finding is not traversable. (6) As the conversion is the gist 
 of the action, it must necessarily be stated in the declaration. 
 The usual ^dca is the general issue, not guilty of the pre- 
 mises :(c) the points relating to the pleadings in this action 
 '^ 157 vill be more fully stated hereafter. *The judgment is for 
 
 damages and full costs, to which the plaintiff is entiilcd, though 
 he recover less than 40s. damages,((/) unless the judge cer- 
 tify under the statute of Elizabeth. {e) 
 
 III L'EPLEVLy.(a) 
 
 J^r. JiepU-vm. Where goods have been illegally distrained, and in some 
 other instances, the owner may regain possession by u writ of 
 replevin out of chancery, or (which is now most usual) by 
 
 (r) Ante, fi6. P.iil!. N. P. 34. 2 {<i) Moor, 691. Hardr. 111.— 
 
 Saund. 47. f. g. 4 East, V2l. Latch. 214. 2 .Saund. 47. k. 
 
 (xy) Auti-, 15,3. (A; Ante, 148. 1 Xew Rep. 140. 
 
 (x) Sir t. Raym. 472. 2 Vent. (c) Bull. N. P. 48. 
 
 170. ' (f/) 3 Kob. 31 . 1 Salk. 208. 
 
 (^) 1 Bun-. 20. 1 T. R. 475. 2 (e) 43 Eliz. c. 6. 
 
 Saund. 47. k. 1. (<') From Ee and plegiare. Co, 
 
 (::) See tlie precLulents, post, vol. Lit. 145. b. 
 2. 323 to 330. ■
 
 OF THE FORM OF ACTION. 157 
 
 J»laint or application to the sheriff, finding pledges to prosecute ///. Ilepkvin- 
 an action against the distrainor to try the legality of the dis- 
 tress ; and that if the right be determined against the plaintifT, 
 he will return the chattels ; and in the case of a distress for 
 rent, also giving a bond, with two sureties, to the same cf- 
 fect.(^) 
 
 The action of replevin, it is said, is of two sorts, in the de- 
 tinetf or the dctitiuit ; the former where goods are stiii cietained 
 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 .(c) But the former is now 
 obsolete, and according to *a late case, tiiere does not appear, * 158 
 
 in any of the books, any proceeding in replevin which has not 
 commenced by writ, requiring the slieriif to cause the goods 
 of the plaintiff to be replevied to him, or by the plaint in the 
 sherifl''s court, the immediate process upon which, is a pre- 
 cept to replevy the goods of the party levying the plaint, both 
 ^vhich modes of proceeding are in rem, i. e. to have the goods 
 again ;((/) and therefore replevin is not an action m ithin the 
 statute 24 Geo.ll. c. 44. which protects constables, Sec. acting 
 under a magistrate's warrant, from any action, until demand 
 made or left at their usual place of abode, See. by the party in- 
 tending to bring such action. (e) In the present 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 not the value of the goods themselves. (/) We will con- 
 sider this action with reference, 1 st. To the thing taken ; 
 2dly. The property therein ; and 3dly. The nature of the in- 
 juiy. 
 
 Replevin can only be supported for taking ^personal chattel, ut. Tlie prob- 
 and for an injury to matter affixed to the freehold, in which P^'i-y "^^cted 
 case the remedy should be trespass, or, if the interest be in 
 reversion, case.(5-) 
 
 (6) 3 Bl. Com. 147, 8. (t) 6 East, 283. 
 
 (0 1 Saund. .347. b. n. 2. Bull. ( /') 1 Suund. 347. b. n. 2. LutiP. 
 
 N. P. 52. Willes, 672. Com. Dig-. 1150,51. 
 Pleader, 3. K. 10. C^^) 4 T. R. 504 
 
 {il) Per Lord EUenborouffh, Ch. 
 
 J. 6 East, 28*',, 
 
 Vol. I. r .15 1
 
 j[58 Oi' THE FORM OF ACTION. 
 
 JIT. Tiepier'rii. i "-" tjiippun replevin, the plaintiff must, at the time of the 
 "i": ■ .fl-' I' caption, huvc liLid cither the general Jiroficrty, or a s/iecial pro- 
 txTcst. ficrty, as the bailee *of eoods, as a pawn, or to be used by him -Jh) 
 
 and several persons havint? separate interests in the property 
 distrained, cannot join in this action ;(z) but joint-tenants and te- 
 nants in conunon may and should join ;(/:) and if the cattle of a 
 fcjue sole 1)0 taken, and she afterwards intermarry, the action of 
 replevin should be in the name of the husband alone ;(/) and 
 executors may have replevin of a taking in vita (esiatoris.Qn) 
 The defendant cannot, however, under the general issue 11071 
 cc/iil, dispute the plaintiff's property, which must be denied by 
 a special plca.(«) If the plaintiff has not the immediate right 
 of possession, replevin cannot be supported, but the parly 
 must proceed by aclion on the case.(o) 
 .'tiilv. Tlitf ill- With respect to the nature of the injury , it is said, that re- 
 plevin lies only in one instance of an unlawful taking, that of 
 a wrongful t/Zs^res* ;(/2) but upon investigation it will appear 
 that this action is not thus limited, and that if goods be taken 
 illegally, though not as a distress, replevin may be support- 
 ed ;((/) though, as it has. been observed, replevin is now sel- 
 dom brought but for distresses for rent, darnage feasant, poor'a 
 rate, Scc.(»") It may, certainly, be brought to try the legality of 
 * 160 '^ distress for rent, provided *there were no sum whatever in 
 arrear ;(.s) but if any sum, however small, were due, and the 
 distress « ere for a greater sum, or excessive, or otherwise ir- 
 regular, the remedy must be by action on the case.(;) Reple- 
 vin 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 or- 
 der to put in issue the title of the party distraining ;(x') so to 
 
 (/;) Co. Lit. 145. b. Sir W. Jones, 1/3, 4. 6 Hen. VII. 8, 
 
 (/) Id. ibid, ante, 5'2. 'J. Cro. Eliz. 824. Ci-o. Jac. 50 
 
 {k) Bull. N. P. 53. ante, 51, '2. Com. Dig. Acliou, M. 6. Co. Lit. 
 
 ^l) Ante, 02. Bull. X. P. 53. 145. b. 
 
 (;«) Bull. N. P. 54. {>■) Com. Dig. Action, M. 6. 
 
 (;i) Id. ibid. (.v) 5 T. U. i248. n. c. 3 B. 6c P 
 
 {0) 7 T. K. 9. 348. 
 
 \p) 3 Bl. Com. 146. (0 Ante, 140. 
 
 ■:-,.) Mn Abr. Kti.k\ia, B. pi. 2, 0') 1 S;uii.d. 34G. e. d.C
 
 OF THE FORM OF ACTIO\-. 160 
 
 Iry the legality of a distress for poor's rates.(-:') or for sewers' ^^^ 7(ti'>!fvin. 
 ratc,(.r) or for a heriot, Scc.(y) But if a superior court award 
 tin execution, it seems that no replevin lies for the goods taken 
 by the sheriff by virtue of the execution ; and if any person 
 should pretend to take out a replevin, the court would commit 
 him for a contempt of their jurisdiction ;(r) and v.- here goods 
 are taken by way of levy, as for a penally on a conviction under 
 a statute, it is generally in the nature of an execution, and un- 
 less replevin be granted by the statute, this action will not lie, 
 the conviction being conclusive, and its legality not question- 
 able in replevin ;{a) but where a special inferior jurisdiction is 
 given to justices, Sec. and they exceed it, in some cases reple- 
 vin lies. (6) 
 
 *ln this action both the plaintiff and defendant are considered * ]f)] 
 
 as actors, the defendant ia respect of his having made the dis- 
 tress, (being a claim of right, and the avowry in the nature of 
 a declaration, )(r) and the plaintiff" in respect of his action ; on 
 ■which ground principally the distinctions betv.ecn the pleadings 
 in this action and in that of trespass depend. ((/) 
 
 '1 he declaration in this action, wiiich is local, reOjUires cer- 
 tainty in the description of the place where the distress was 
 taken ;(e) and the goods also must be described v.ith certainly, 
 though the same strictness docs not prevail as formerly. (./') 
 Where the distress v/as taken for rent, a general avotvry is 
 given by statute ;{g) but in avowries for distresses, taken da- 
 mage 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 cjuo, but must state his title. (/:) 
 The j)laintift' cannot ///fca' /;z bar dt- injuria generally, but must 
 
 {r.-) 3 Wils. 442. I Sulk. 20.i. C- (6) Willcs, 072. n. b. 
 
 East, 283. 2 151. Rep. 13.30. 1 Bin-r. (<) 2 ^\ ils. WrtO, 1. 1 Sauud. 347 
 
 .-.Sj. WJlles, 072. b. 11,7. Wilks, 221. 
 
 (.r) f. T. K. .122. Ifai-dr. 478. (,/) 1 Sauuil. 347. c. n. .^ 
 
 <.'om. Uig. Ploadci', K. 20. Willcs, (e) .Seethe precedents, post, vol 
 
 072. n. b. 2. 304. n. c. 
 
 (»/) Cro. Jac. .50. ( /") 2 Sauml. 74 b. 
 
 (:) Gilb. Rcpl. 101. WiUc-, 072. (5-) U Geo. II. c. 19. s. 22. 2 
 
 II. b. 2 Lutw. ll'Jl. 5 Lev. 204. 2 Saund. 284. c, n. 3. 
 
 Sti-a. 1184. (/() 2 R. k P. ,^A9. 1 Sunnd TC 
 
 («) Com. Dig. Action, M. n .' 
 <.\l|l<-'--, 67.1 n h. 2 XcM- R.-p. 39"
 
 J61 OF THE FORM OF ACTION. 
 
 ///. Replevin, take issue upon some particular allegation in the avo\vry.(f) 
 The statute of .4iiue{k) provides that the plaintiff in replevin, 
 in any court of record, may, with leave of the court, plead se- 
 veral pleas in bar, which frequently renders this action prefer- 
 able to trespass or any other action in which the plaintiff can 
 
 * 1G2 have but one replication *to each plea. The other particulars 
 of the pleadings in this action will be stated hereafter. The 
 judgment for the plaintiff is, that he recover his damages on 
 occasion of the taking and unjustly detaining the cattle, 8cc. 
 together with/z^// costs of suit, to which the plaintiff is entitled, 
 though he recover less than 40s. damages, unless the judge 
 certify, under the 43 Eliz. c. 6, The judgment for the avow- 
 ant, or person making cognisance, varies in different cases ; it 
 may be at common law Jiro retorno habendo^ or founded on the 
 statutes Htn. VIII. or Car. \\.{z) 
 
 IV. TRESPASS. 
 
 IV. Treu'iass. '^^^ term tres/iass, in its most extensive signification in- 
 cludes every description of wrong^ia) on which account an ac- 
 tion on the case has been usually called " trespass on the case ;" 
 but technically, it signifies an injury committed vi et armis^ the 
 meaning of which words is expressed in Co. Lit.{b) The action 
 of tresjiass only lies for injuries committed with force, and ge- 
 nerally only for such as are immediate. (c) Force we have 
 seen may be either actual or implied ; and the distinctions 
 between immediate and consequential injuries have already 
 been considered. (rf) The words contra pacem should uni- 
 formly accompany the allegation of the injury, and in some 
 
 -^ 163 cases are *material to the foundation of the action ; thus an ac- 
 tion of trespass to land not within our king's dominions, can- 
 not be sustained, ((?) and it has been doubted whether trespass 
 for an assault committed out of the king's dominions, as in 
 France, can be supported ;(/) though as the fine, in strict- 
 
 (0 I B. & p. 70. (6) IGI. b. 3 Rl. Cora. 118. 39S, 9. 
 
 {k) 4 Anne, c. 16. s. 4. (c) Ante, lfi2, 3, 4, 5. 
 
 (:) See the cases in I Saund. 195. {(l) Id. ibid, 
 
 n. 3. '2 Saund. 286. u. 5. («■ ) 4 T. R. .503. 2 Bl. Rep. 1058. 
 
 {a) 7 East, 134. 5. Co. Lit. 57. a. (,/) Cowp. 176. '2 Bl. Rep- 1058,
 
 OF THE FORM OF ACTION. 163 
 
 ness of law payable to the king for the violation of the public ^J- Trespass. 
 peace, is no longer regardedjC^-) and the words contra pactm 
 are not traversable ;(//) it should seem that an action for such 
 injury might be supported. 
 
 This action cannot be sustained where the wrong complain- 
 ed of was a nonfeasance^ as for not carrying away tidies, 8cc.(f^: 
 or where the matter affected was not tangible, and consequently 
 could not be injured by force, as reputation, health, ^c{j) or 
 where the right affected is incorporeal, as a right of common, or 
 way, 8cc.(/r) or where the plaintiff's intcres: iy in reversion, and 
 not in possession ;(/) or where the injury was not immediate but 
 consequential.(m) We will consider the particular applicabi- 
 lity of this remedy to the different injuries committed by force 
 to the person, personal or real property ; and as there are material 
 distinctions between the remedy for these injuries when com- 
 mitted, under colour of suit or process, and Avhen not, we will 
 *consider the action of trespass under the following heads : * 164 
 
 I. When it lies for injuries not committed under colour of 
 legal proceeding, . . . fiai^es 164 to IS" 
 
 1. For the parties own act, . . /;. 164 to IRO 
 
 f 1. Injuries to tne person, . //, 164 to 165 
 
 "^ 2. To personal property, . /z. 165 to 173 
 
 j [_ 3. To real property, . /z. 173 to 180 
 
 J 2. For the acts of others, and of cattle, Sec. 
 
 \^ pages 181 tq 18S 
 
 II. When trespass lies for injuries under colour of legal pro- 
 ^ceedings,(«) - . . . . pages 183 to 187 
 
 /. FOR LYJURIES A'OT LWDER PROCESS. 
 
 Trespass is the only remedy for a menace to the plaintiff, at- i^t. Iniurie 
 tended with consequent damage, (o) and for an illeeral assault, ^° *'"^ I'^' 
 battery, and wounding, or imprisonment, when not under co- 
 
 C?) 3 BI. Cora. lis. .309. {k) if id. 
 
 (/i) Com. Dig. Pluadcr. 3. M. S. (/) 4 T. 4S9. 4 T. R. 9. 
 Vin. Abr. Trespass, Q. a. (m) Ante, 121. 125, 6. 
 
 (/.) Ante, 12'i. {n) 3 T. R. IS.i. 
 
 (.;) Ibid. (o) 3 131. Cora. 120, 
 
 <;
 
 164 OF THE FORM OF ACTION. 
 
 IV.Trespcm. lour of proccss.(/;) It lies also when the battery, imprison- 
 ment, Sec. Avere in the first instance lawful, but the party by an 
 unnecessary degree of violence became a trespasser, ab initio ;{q) 
 and for a wrongful imprisonment after the process is determi- 
 ned. (?•) So it lies for an injury to the relative rights occasioned 
 by force, as for menacing tenants, servants, 8cc. and beating, 
 wounding, and imprisoning a wife or servant,(s) whereby the 
 landlord, master or servant, hath sustained a loss, though the 
 injury, the loss of service, See. were consequential, and not im- 
 
 * 165 mediate ; and it lies for *criminal conversation,(?) seducing away 
 
 a wifef «) or servant,(v) or for debauching the latter,(TO) force be- 
 ing implied, and the wife and servant being considered as having 
 no power to consent ; but in the latter instances, unless some 
 other trespass has been committed, as an illegal entiy into the 
 plaintiff's house, which it may be advisable to join in the same 
 action, it seems more proper to declare in case.(x) 
 ally. To per- The action of trespass in its application to injuries to fier- 
 M)na proiier- ^ona/ property, may be considered with reference, 1st. To the 
 nature of the t/iing' affected ; 2dly. The plaintiff's r/^'-Af thereto ; 
 odly. The nature of the injia-y ; and 4thly. The situadon in which 
 the defendant stood, as whether tenant in common, bailee. Sec. 
 
 . A\u\Jir,<if, as to the nuhire of the i/iing affected: trespass lies 
 for taking or injuring all domicile and tame animals, as dogs and 
 cats ;(?/) and all animals usually marketable, as parrots, mon- 
 keys, &c. and in which case it is not necessary to shew in the 
 pleadings that they have been reclaimed ;(z) but in the case of a 
 hawk, pheasant, hare, rabbit, fish, or other animals y^?"^ naturxy 
 and not generally merchandisable, it shoidd be shewn in the 
 
 * 166 pleadings that the same were reclaimed or dead, *or at least 
 
 {[>) 11 Mod. 180, ISI. (,v) 2'r. U. If.r, 8. '20 ^'In. Abr. 
 
 (7) Com. Dig-. Ticspass, C. i. 470. 6 East, 38,". Post, vol. '2. 265. 
 
 Bac. Abr. Trespass, B. n. r. 266. 
 
 ((•) Cro. Jac. 379. {y) 1 Saund. 84. n. 2, 3. F. X. B. 
 
 (,s) 9 Co. 113. 10 Co. 130. 86. Bro. Ti-esp. pi. 407. lie!). 283. 
 
 (0 7 Mod. 81. 2 Salk. 5.i2. 6 Ci-o. Eliz. 125. Cro. Jac. 262. 463. 
 
 East, 3S7. 3 T. R. 37, 8. See Toller's Law of 
 
 (?() F. N. B. 89. 6 East, 3S'. E.xecutors, 1st edit. 112. where the 
 
 (r') 5 T. R. 361. 7 Mod. 81. 2 particulars of personal property avc 
 
 Salk. 552. 20 \\r\. Abr. 47ii. stated. Com. Di?. Trespass, A, I. 
 
 (w) Bac. Abr. Trespass, C. 1. 3 (r) Cro. Jac. 262. 
 Wils. 562. .'51 8, 519. 2 Xew Rep. 476.
 
 OF THE FORM OF ACTION. ' 166 
 
 thai llie plaintiff was fiosscssed of thcm.(a) So it lies in jv. Trenpasa 
 some instances for taking animals ycr<c war wr^e, and not reclaim- 
 ed ; 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 wrongdoer did not 
 enter on the land -,(6) and if game be started on the land of .f, 
 and pursued and killed on the land of B, j1 may support tres- 
 pass for taking the hare, if he also pursued the same, for by 
 the pursuit he prevented an abandonment of his local pro- 
 perty ;(c) the same rules obtain in the case of fish.((/) In ac- 
 tions of trespass for taking or killing animalsyc;-^ wa^wnr not 
 reclaimed, it is advisable in pleading to state also an entry on 
 the plaintiff 's land •,{e) and it is said that trespass for killing- 
 rabbits without complaining of such entry cannot be support- 
 ed.(/) 
 
 Secondly^ with respect to the plaintiff's interest in the pro- 
 perty affected^ he must at the time when the injury was com- 
 mitted, have had an actual or a constructive possession.{g) and 
 also a general or qualified property therein, which may be ei- 
 ther, 1st. In the case of the absolute or genei'al owner entitled 
 to immediate possession ; 2dly. The qualified *owner cou- ^ , ^„ 
 pled with an interest, and also entitled to immediate posses- 
 sion ;(A) odly. A bailee with a mere naked authority, unaccom- 
 panied with any interest except as to remuneration for trouble. 
 Sec. but who is in actual possession; or, 4thly. Actual posses- 
 sion, though without the consent of the real owner and even 
 adverse. 
 
 In the^rs^ instance, the person who has the absolute or ge- 
 neral property, may support this action, although he has never 
 
 («) Bac. A1)r. Trespass, 1. Cro. {d) Cro. Car. 554. 
 
 Jac. -2(,± 1 L(l. Kaym. '251. I Vcntr. (f) 43 Edw. III. p. 24. 2. 1 Ld. 
 
 12'i. Dyer, .-500. b. Cro. Car. 554. Kaym. 250. H Mod. 74. 2 Salk. 
 
 Bac. Ahr. Trespass, E. 1. and title 55C. Cro. Car. 554. F. N. B. 8C, 8'. 
 
 Trover, D. Toiler, 113. M. n. a. A. 
 
 (6) 2 Salk. 550. 1 Ld. Raym. 251. (/) 43 Edw. 111. p. 24. 2. F. X. B. 
 
 Godb. 12.3. F. N. B. Sr. 11 Mod. 8'. A. c. Cro. Car. 553, 4. 
 
 74. (iO 1 'i'- ^ ^80. 4 T. R. 490. 7 
 (t) Godb. 123. Salk. 556. 11 Mod. T. R. 9. 
 
 75. Bac. Abr. Trespass, E. Tro- (/<) Ante, 150,5.1. I B k P \A 
 ver, D. Bum's Jus. tit. Game, III 7 T. R. 
 
 vol. 2. 3SS. as to pigeons.
 
 J67 OF THE FORM OF ACTION. 
 
 IF. Trespass: had the actual possession, or although he has parted with his 
 possessiou to a carrier, servant, &c. giving him only a bare au- 
 thori!:y to carry or keep, Sec. not coupled with an interest in the 
 thing,(?) it being a rule of law that the general property of per- 
 sonal chattels Jirima facie, draws to it the possession, (/r) and 
 this rule holds by relation, as in case of executors and adminis- 
 trators, Sec. who may support trespass for an injury to personal 
 property cotriinitted after the death of the testator, or intestate, 
 and before j:; obate or administration ;(/) so may a legatee after 
 the executor iaas assented to the legacy, for a trespass commit- 
 ted before such assent. (w) But if the general owner part with 
 his possession, and the bailee have a right to use the thing, the 
 inference of possession is rebutted, and the right of possession 
 being in reversion, the general owner cannot support trespass, 
 but only an action on the case, for an injury done by a stranger 
 
 * 168 while the *bailee*s right continued.(n) Nor can the general 
 
 owner in such case support this action even against such bailee 
 for a mere abuse, though if a bailee destroy the thing, trespass 
 may be supported if the injury were forcible. 
 
 In the second case also, that of the bailee who has an autho- 
 rity coupled with an interest, trespass may perhaps be support- 
 ed though he never had actual possession, for any injury done 
 during his interest ;(o) as in the case of a factor, or consignee 
 of goods, in which he has an interest in respect of his commis- 
 sion, hcXji) 
 
 In the i/iird 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 any injury done while he was in 
 the actual possession of the thing, as a carrier, factor, pawnee, 
 a sheriff, UcXg) but it is otherwise in the case of a mere ser- 
 vant. (?) 
 
 (0 7 T. R. 12. (o) Ante, 151, 2. I B. fee P. 45. 2 
 
 Ik) 2 Saund. 47. a. b. d. 2 Eulst. Saund. 47. d. 
 
 2G8. 7T. R. 9. I T. R. 480. (p') 7 T. R. 359. 1 T. R. 113. 1 
 
 (0 Id. ibid. 1 T. R. 480. B:ie. Abr. H. Bl. 81. Bull. N. P. 38. Ante, 
 
 Executors, H. 1. 2 Saund. 47. k. 152. 
 
 (m) Bro. Ahr. Trespass, pi. 25. (}) 2 Saund. 47. b. 1 Roll. Abr. 
 
 (?;) 4 T B. 480. 7 T . R. 9. 3 Lev. 551. 
 
 2nf| (r) Owen, 52. 3 Inst. 108. 2 B) 
 
 Com. 39G. 2 Saund. 47. b, c, d
 
 OF 'rtlE FORM OF ACTION. 
 
 168 
 
 An instance o( the fourth description is the finder of any' ar- J>'- Tre^pasn. 
 tide, who may maintain trespass or trover against any person 
 but the real owner ;(&) and even a person having- an illegal pos- 
 session, may support this action against any person but the legal 
 owner.(/) 
 
 Assignees of a bankrupt, though they have a constructive 
 possession from the time of the act of *bankrupt(-y cannot sup- * 169 
 port trespass against a sheriff or any other officer acting in obe- 
 dience 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 wiiich only the 
 real value of the goods can be recovered. (zO 
 
 As to the third point, the nature of the injury^ it may be ei- 
 ther by an unlawful taking of the personal chattel, or by abusing 
 it whilst in the possession of the general owner, or of a person 
 having a special properly in it, as a bailee. 
 
 Trespass is a concurrent remedy with trover for most illegal 
 takin<^:i.{a) Thus even in the case of a distress for rent, where 
 there has been an illegal taking, as for distraining when no rent 
 was due, or taking implements of trade, or beasts of husbandry, 
 when there was sufficiency of other property ;(/) or a hoise 
 while his rider was upon him ;(c) or if a distress be made, the 
 outer door being shut, or if the party expel the tenant, trespass 
 lies;W) for the statute 11 Geo. II. c. I'J. which enacts that a 
 party distraining for rent shall not be a trespasser ab inilio^(e) 
 only relates to irregularities after a lawful taking. (y) 
 
 This action also lies though there has been no wrongful in- 
 tent ;(^) as if a sheriff by mistake *take the goods of a wrong -ff \~li) 
 person, (/i) except in the case of a levy under an execution after 
 
 (.v) 2 Sannd. 47. d 
 
 (() 1 E-'ist, '241. Cio. Rliz. 819. .5 
 Co. 24. (b). Moore, Cm, 2. .3 Wi!s. 
 332. 2 Su-a. T77. 1 S:ilk. '290. '2 
 Saund. 47. c. 
 
 (k) 1 T. R. 480. 1 Sliow. 12. 1 
 Lev. 173. 
 
 (fi) 3 Wils. .I')'', 
 
 (/y) F. X. K. 8S. 4 T. ]{. 565. 
 Bun-. 570. 
 
 ((•) G T. R. 1.38. 4 T. R. 5f<9 
 
 ((/) 1 East, 1.59. 
 
 (,) I H. HI. 1.5. 
 
 (/) 1 E.sp. X. P. .382, .3. 
 
 (?•) Ante, 129. 3 Luv. .37. 
 
 (A) AiiU-, 1.50 
 
 \'oi.. I. 
 
 r 16 1
 
 ] 70 OF THE FORM OF ACTION. 
 
 jr. Trespass, a secret act of bankruptcy, when trover only can be supported.(»& 
 If th^ slicrifl' or a stranger illegally take the goods of another in 
 execution, and sell and deliver them to a third person, trespass 
 cannot be supported against the latter, beaxuse they came to him 
 witliout fault on his part ;(X) 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 excusa- 
 ble.(/) This action may -be supported against a bailee who has only 
 a bare authority, as if a servant lake goods of his master out of his 
 shop and convert them ;(?n) but not against a bailee coupled with 
 an interest unles she destroy the chattel ;(") nor against a joint- 
 tenant or tenant in common for merely taking away and holding 
 exclusively the property from his co-tenant,(o) because each has 
 an interest in the whole and a right to dispose thereof ;(/?) but if 
 the thing be destroyed^ trespass lies,(9) and case may be support- 
 ed for injuring the thing. (r) A bailee of a chutiel for a certain 
 time ( ()ii])ledA\ ith an interest, may support this action against the 
 bailor for takingit aw.iy before the time,(5) and it lies though after 
 
 ^ 171 ^^^^ illegal taking the *gGods be restored. (0 When the taking is 
 
 unlawful, cither 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 ;(u) and it will not lie for a refusal to deliver 
 ■when the first taking was lawful, trover or detinue being in such 
 case the only remedies. (lO * 
 
 So trespass lies for any immediate injury to personal property 
 occasioned by actual or implied force, though the wrongdoer 
 might not take away or dispose of the chattel, as for shooting 
 or beating a dog or other live animal, or for hunting or chasing 
 
 CO 1 T. R. 480. Ante, 130. 168, 9. Lit. 200. a. Cowp. 217. 4 East, 121. 
 
 (A) 2 Roll. Abr. 556. pi. 50. Bro. (y) Co. Lit. 200. a. Ante. 
 
 Abr. Trespass, pi. 48. (r) 8 T. R. 145. 1 Ld. Kaym. 737. 
 
 (0 Sid. 438. (s) Godb. 173. F. N. B. 86. n. a. 
 
 ("0 1 Leon. 87. Cra Eliz. 781. 5 (t) Ante, 155. Bro. Abr. Trespass, 
 
 Co. 13. b. pi. 221. 2 Roll. Abr. 569. pi. 3. 6. 
 
 (n) Ante, 154. Post. (m) 2Saund. 47. e. Bro. Trespass, 
 
 (o) 1 T. R. 658. Cowp. 430. 2 67. 2 Roll. Abr. 569. P. Ante, 152. 
 
 Siiiuid., 47. g. (t-) Sir T. Raym. 472. 2 Ventr. 170, 
 
 (p) 1 Lev. 29. 8 T. R. 145. Co. 2 Saund. 47. k.
 
 OF THE FORM OF ACTION. 171 
 
 Bheep, SccCw) or for mixing water with wine. (a:*) But it is IV. Trespass. 
 said that for a mere battery of a horse not accompanied with 
 special damage, no action can be supported.(t/) 
 
 It is said that if a bailee of a beast, See. kill it, trespass can- 
 not be supported but only case, because a general confidence 
 has been reposed in him ;{z) but this appears to be erroneous, 
 for though the act may not render the party a trespasser al) 
 iniiio.^ yet he maybe considered as a trespasser for the wrongful 
 act itself ;(q) so case,(6) or assumpsit for a breach of the im- 
 plied contract may be supported ;(c) and it seems clear that if 
 a *person be bailee, though coupled with a beneficial interest, ^ 1/2 
 as of sheep to feed his land, or of oxen to plough it,(rf) 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. C^) So one joint-tenant or tenant in common may 
 support trespass against his co-tenant when the chattel is de- 
 stroyecl, and even consider the defendant as guilty of entering 
 the dove-cote, the fishery, &c. and taking away the thing ;(/") 
 but if the thing be not destroyed, trespass does' not lie against a 
 bailee coupled with an interest, for abusing the chattel, (§■) be- 
 cause an interest and the right of possession still continues in 
 the bailee, and a general owner has no immediate right of pos- 
 session at the time the injury was committed, and trespass can- 
 not be supported even against a stranger unless there be an im- 
 mediate right of possession. (A) Trespass will not lie for a loss 
 or injury occasioned by a bailee's negligence, because it does 
 not lie for any no7ifcasancc.{i) 
 
 In some instances trespass may also be supported for an in- 
 
 ijk 
 
 jury committed to personal property whilst in the lawT^ul adverse 
 
 (w) Barne5, 45'2. 3 T. R. 37. (c) Ci-o. Eliz. 777. TSi. 
 
 Hob. 283. 3 Bl. Com. 153. (</) Co. Lit. 57. a. Cro. Eliz. 784. 
 
 (x) F.N. B. SS. (e) 7 T. R, 11. Co. Lit. 57. a 
 
 (w) 2Sti-a. 87i. Quxi-e, Barnes, Cro. Eliz. 784. 5 Co. 13. b. 11 Co 
 
 45-2. 82. a. Dyer, 121. b. pi. 17. 
 
 (t) Bac. Abr. Trespass, G. 1. (/) Co. Lit. 200. a. b. 2 Sauu^I 
 
 Moore, 245. 47. b. g. 8 T. R. 146. 
 
 (a) Co. Lit. 57. a. Cro. Eliz. 777. (^) 2 Saund. 47. g. ... 
 
 784. 5 Co. 13. b. Bro. Trespass, pi. {h) 7 T. R. 9. 4 T. R. 4S9. 
 
 205. 1 Leon. 87. 11 Co. 82. *. (i) 5 Co- l.'J. b 14 a. Ante, 134. 
 
 (h) C» Lit. 57. a, n. 4-
 
 17'2 ^^ fHE FORiM OF ACTION. 
 
 // . Tri;.fpasi:. possession of the wrongdoer, as where he has been guilty of 
 an abuse which renders him a trespasser ab initio ;{k) this ob- 
 
 *■ 173 ^Mns in general whenever the person who *{irst acted with pro»- 
 
 priely under an authority or license given by law afterwards 
 abusco 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,(0 
 or for culling nets lawfully taken damage fcasant,{m) or for 
 working a horse, &c. distrained ;(?/) but in the case of a dis- 
 tress for rent, we have seen that in general a party cannot be- 
 come a trespasser ab initi'j, by an irregularity when the caption 
 vvas lawful. 
 
 iully. To real Trespass is also the proper remedy to recover damages for 
 properly. •,, , • .... 
 
 an Illegal entry upon, or an mimcdiate mjury to, real projierty 
 
 €or[ioreal in the posficssion of the plaintiff.io) This remedy in 
 its application to injuries to real propeity, may be considered 
 with reference, 1st. To the nature of the property affected ; 
 2dly. To the plaintiff's right thereto ; and 3dly. To the nature 
 of the injury, and by whom committed. 
 
 1st. \Vith respect to the ?ialure of the real property ajfectec^., 
 it must in general be something tangible and fixed, as a house, 
 a room, ouihouse, or other buildhigs, or land. Trespass may 
 be supported for an injm'y to land, though not fenced from the 
 property of others, and by the owner of the soil, kc. though 
 il be a highway, or a public bridge, the term close being tech- 
 nical, and siiynifying the fn^fj'fsr in the soil, and not merely a 
 ^.- \'~l/:\, close or inclosure in the common *acceptation of that term,(y) 
 It lies however temporary the plaintiff 's interest, and though it 
 be merely in the profits of the soil, as vesturx terrx or hev' 
 bugli pastiiraX'') prima ton6ura,(,s) or free warren, ficcC^") if it 
 be in exclusion of others. So where a person contracted with 
 the owner of a close for the pvu'chase merely of a growing 
 
 (^) D:ic. Abr. Trespass, B. where (9) Doc. & Stud. JO. 7 Easf, 207. 
 
 thi- (loclriae of a p:\riy becoiuins; a' 2 Stra. 1004. 6 East, 154. 1 Burr. 
 
 trespasser ab initio is observed upon. 133. 
 
 (/) 8 Co. 146. b. (r) Co. Lit. 4. h. 5 E.-ist, 480. 6 
 
 (w) Cro. C^r. 2-2S. East, 606. 609. Dyer, 285. 1. 40. Bro. 
 
 (/() Cro. Jac. I4r. 1 T. R. 12. Trespass, pi. 270. Mocre, 302. 2 Koll. 
 
 (o^ .Burr. 1114. 1556. 5 East, Abr. 552. pi. 8. Palm. 47, 5 T. B.. 
 
 485.487. Bac. Abr. Trespass, C. 3. As 535. 
 to iiumudiate and consequeutial inju- (.s) 7 East, 200. 
 ries, see ante, 125 to 12S. (0 2 Salk. 637
 
 OF THE FORM OF ACTION. I74 
 
 crop of grass there, it was decided that the purchaser had such if. Trefipasn. 
 an exclusive possession of the close, though for alimited pur- 
 pose, that he might maintain trespass giiare clausum /regit 
 against any person entering the close, and taking the grass even 
 with the assent of the owner ;(u) so it lies for a trespass on a 
 portion of a common field after an allotment, authorising the 
 feeding the same only for a certain lime ;(iy) so a person having 
 an exclusive right to dig turves or coais. See, may support tres- 
 pass quare claiisum frtgit against another for digging and taking 
 away turves, &c. therein, though others had common of pas- 
 ture over the land ^yx) and if J 5 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 /regit 
 against a stranger, for treading down the corn.(z/) But unless 
 the plaintiff" have an exclusive *interest, case is the only re- * 17'5 
 medy, as if he had only a profit a Jircndre as a right of com- 
 mon of pasture or common of piscary ;(z) and because the 
 plaintiff hath not the exclusive possession of a pew, trespass 
 cannot be supported even against a stranger for entering it ;(o) 
 but the parson may support trespass against a person preach- 
 ing in a church without his leave. (6) 
 
 This action also lies for an injury to the plaintiff's land 
 covered with water, but if the interest be merely in the water, 
 case is the only remedy ;(c) and when the trespass is in the 
 plaintiff's river, pond. Sec. it is to be described as an entry on 
 the plaintiff's close or land covered with water :(rf) or it may 
 be for a pool,(e) or that the defendant broke and entered the 
 several fishery of the plaintiff, Sec. and fished therein for fish ; 
 but it is disputed whether it lies for fishing in a free fish^ 
 ery.(/) 
 
 («) 6 East, rm. (o) T. R. 330. 
 
 (-rf) Cro. Kliz. 4'21. 5 T. R. 335. (/j) 12 .Mod. 420. 433. 
 
 (x) 3 Bun-. 1825. 15Gl), 1, 2. 6 (t) Yeiv. 143. 
 
 Ea.sl, 6(»0. (f/) Co. Lit. 4. b. Yelv. 143. 
 
 («) Hull. N. P. 85. 4 Burr. 1827. (e) Yelv. 143. Co. Lit. 5. a. h. 
 
 Co. Lit. 4. b. Hut see Cro. Eliz. 143. (/) 2 S^lk. 637. Co. Lit. 12G. b. 
 
 and 3 Leon. 213. note 7 to page 122. a. Co. Lit. 4. b. 
 
 (:) Cro. Eliz. 421. Burr. 1827. I'". N. B. 88. G. 2 Bl. Com, 4<^ 'J 
 
 Sal k.. 637. Bro. Trespass, pi. 174. 2 H. Bl. 182. Cro, Car. ?5-i. 
 Roll. 552. n. pi. S. .Staudiug place, C 
 Bast, I'JO,
 
 175 OF THE FORM OF ACTION. 
 
 !V. Treapass. 2dly. With respect to the plaintiff's right or interest in the 
 property affected, we have given it a partial consideration in 
 the preceding pages.(g") The gist of this action is the injury 
 to the possession, and unless, at the time the injury was com- 
 mitted, the plaintiff was in actual possession, trespass cannot 
 
 '^ 176 t)e supported,(A) and though *the title may come in question, 
 yet it is not essential to the action that it 5hould.(z) There- 
 lore a landlord cannot, during a subsisting lease, support 
 trespass, but the action of trespass must be in the name of the 
 tenant, or the landlord must proceed in case, unless the injury 
 was committed to trees or other property excepted in the lease, 
 when the latter may support trespass (juarc clausum fregit.^k) 
 Any possession is sufficient against a wrongdoer or a person 
 who cannot make out a title /2r/wayaae entitling him to the 
 possession. (/) It therefore follows that a tenant for years,(OT) 
 a lessee at will,(?j) and a tenant at sufferance, Co) may support 
 this action against a stranger or even against his landlord, un- 
 less a right of entry be expressly or impliedly resei'ved.(/j) 
 
 There is a nvaterial distinction between personal and real 
 property, as to the right of the owner : in the first case we 
 have seen that the general property draws to it the possession, 
 sufficient to enable the owner to support trespass, though he 
 has never been in possession ;(7) but in the case of land and 
 other real property, there is no such constructive possession, 
 and unless the pLinliff had the actual possessio7i at the time 
 
 ■* 177 when the *injury was committed, he cannot support this ac- 
 tion. (r) Thus, before entry and actual possession, a person 
 cannot maintain trespass though he hath the freehold in law ; 
 as a parson before induction, Cs) or a conusee of a fine,(/) or a 
 
 (^•) Ante, 17J to 175. and sec in (o) It!, ibid. 13. Co. 69. I East, 
 
 general Com. Dig. Ti-espsiss, B. Vin. 245. note (a). Com. Dig. Trespass^ 
 
 Abi-. Entry, G. 4. Trcs^a.s, H. B. 1. 1 S:iun«3. 322. n. 5. 
 
 (//) 5 Easl, 485. 4Sr. (/)) 11 Mod. 209. Com. Dig. Biens, 
 
 (s) WiUes, 2-21. 1 East, 244. H. 11 Co. 48. 
 
 {h) Bro. ALr. Trespass, pi. 55. 1 (y) Ante, 150, 51. 2 Saund. 4". a. 
 
 Saund. 322. ii. 5. 7 T. R. 13. 8 East, Bull. N. P. 33. 
 
 190. Bac. Abr. Trespass, c. 3. (r) 5 East, 485. 487. Bac. Abr.. 
 
 (/) 1 Easl, 2-i4. 3 Burr. 1563. 2 Trespass, C. 3. 
 
 Stra. 1238. W-lIes, 221. (s) Vin. Abr. Entry, G. 4. and 
 
 (m) 2 Roll. Abr. 551. Sid. 347. Trespass, S. Bac. Abr. Leases, M. 
 
 («) Id. ibid. Plowd. 528. 
 
 (0 2 Lcofl, 147.
 
 OF THE FORM OF ACTION. 
 
 177 
 
 purchaser by lease and release, (though the statute executes J^^'- Trespass. 
 the use,)i.") or an heir,(w) or a devisee against an abator, or a 
 lessee for years before entry .(y) But a disseisee may have it 
 against a disseisor for the disseisin itself, because he was then 
 in possession ; but not for an injury after the disseisin. (2) un- 
 til he hath gained possession by re-entry, and then he may sup- 
 port this action for the intermediate damage ; forafter the entry, 
 the law, by a kind of jus /lostliminii, supposes the freehold to 
 have all along continued in him ;(«) and after recovery in eject- 
 ment, this action may be supported for mesne profits, though 
 anterior to the time of the demise in the declaration in eject- 
 ment,(6) unless where a fine has been levied, in which case 
 trespass cannot be supported for any injury committed an- 
 terior to the entry to avoid the fine.(c) A person hav- 
 ing a mere incorporeal right, as of common of pasture, tur- 
 bary, 8cc, cannot support trespass *cjuare clausurn f regit for * 178 
 treading down the grass growing upon the land upon which 
 he has such i-ight of common, Sec. for although a commoner 
 has a right to take such grass by the mouths of his common- 
 able cattle, he is not to be considered as in possession of the 
 land ;(rf) and because a person having right to sit in a pew, has 
 not the exclusive possession, he cannot support trespass even 
 against a stranger, the possession of the church being in the 
 parson.(e) But whenever there is an exclusive right, trespass 
 may be supported, though the party has not the absolute right 
 to the soil or the whole property therein, (y) as if a person 
 have an exclusive right to cut turf and peat, he may support 
 trespass quare dausum /regit, and for cutting the turf;(,§-) and 
 it may be supported for a trespass in a portion of a common 
 
 (?/) Carter, fiG. A'in. Abr. Tres- 
 pass, S. pi. 13, 14. Noy, 73. 
 
 (w) Plowfl. 142. 2 Mod. 7. 
 
 (0 2 Mod. 7. 
 
 (j/) Bac. Abr. Leases, ^I. Plowd. 
 U12. 
 
 (:) 2 Roll. Abr. 553. Dyer, 285. 
 J. Bl. Com. 210. 
 
 («) Vin. Abr. Trespass, T. II 
 Co. 51. a. 3 Bl. Cora. 210. 2 Roll. 
 \\y\: 554. Rro. TresjiHSS, j)!. 35. 
 Cro. Eliz. 540. Com. Dig. Trespass, 
 R. ,5. 
 
 (i) Run. F.jcct. 44-2. 2 Burr. GOr!, 
 067. Peake, L. E. 326. 
 
 (c) 7 T. R. 732, 3. 3 Bl. Com. 
 210,211. 
 
 (f/) Bro. Trespass, pi. 174. 2 Roll. 
 Abr. 552. N. pi. 8. P.af. Abr. Tres- 
 pass, C. 3. 3 Burr. 1825. Cro. Eliz. 
 421. 
 
 (e) 1 T. R. l.iii. 
 
 (/) Ante, 174. 3 Burr. 1824. 5 
 East, 485, G, 7. Cro. Eliz, 421, 
 ( j) 3 Burr. 1824.
 
 178 OF THE FORM OF ACTION. 
 
 jy. Tre.fass. field after the allotment to the plaintiff-CA) If the plaintiff 
 were in possession of the lands, &c. at the tjmc when the in- 
 jury was committed, the circumstance of his having quitted 
 possession before the conimencement of the action, constitutes 
 no objection. (z) 
 
 With respect to the nature of the injury to real firoficrty, we 
 have seen that trespass can only be supported when the injury 
 was committed with force actual or implied, and immediate.(A:) 
 
 * 179 ^^ *lies, however unintentional the trespass, and though the locus 
 in quo wei'e unincloscd, or the door of the house were open, if 
 the entry were not for a justifiable purpose ;(/) and even shooting 
 at and killing game on another's land, though without an ac- 
 tual entry, is in law an entry ;(A) though in general when 
 the injury is committed off the plaintiff's land, the remedy 
 must be case ;(/) and a mere nonfrasance, as leaving tithe on 
 land, we may remember is not sufficient to support trespass. (w) 
 As to the person by and against whom this action may be 
 supported, it seems that actual possession is necessary to sup- 
 port the action ; and 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 house, or cutting trees during 
 the tenancy at will, the interest being thereby determined ;(n) 
 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, 
 xmless the trees were excepted in^the lease ;(o) though 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, 
 trespass quare clausujn f regit lies for such cutting, (y) 
 
 *■ 180 *The proper remedy by one joint-tenant or tenant in common 
 
 against the other who commits waste to the land or other pro- 
 
 (//) Cro. Eliz. 421. '5 East, 480. (;») Ante, 124. 
 
 485, 486, 48r. (//) Cro. Eliz. 784. 5 Co. 13. b. 11 . 
 
 (/) Bac. Abr. Ti-espass, C. 3. Co. 81. b. 82. a. Co. Lit. 57. a. 
 
 (/.) Ante, 122. As to these iiiju- (o) Aleyn, 83. 1 Saund. 32'2. n. 5. 
 
 rics in general, see Com. Dig. Ti-es- (/»") Id. ibid. 7 T. K. 13. 4 Co. (".2. 
 
 pass, A. 2. Bac. Abr. Trespass, P. Vin. Abr. Trespass, S. pi. 10. and tit. 
 
 (/) Ante, 173. Eac. Abr. Tres- Trespass. 
 
 pass, F. 2 Roll. Abr. 555: 1. 15. C?)'^^- Trespass, pi. 55. I Sauad. 
 
 (k) 11 Mod. 74. 130. 522, n. 3. Bac. Abr. Tresp.tss, C. 3 
 
 (/) 2 Burr. 1114. 11 ]Mod. 74. 130. 
 Autc, 12C.
 
 OF THE FORM OF ACTION. 180 
 
 perty, as by cutting down trees unfit to be cut down, is au ac- I"^ Trespass. 
 tion on the case as for a misfeasance ;(r) but if one tenant in com- 
 mon disturb the other in possession, trespass quare claiisianfre- 
 git may be supported ; as if two be tenants in common of a 
 folding, and one of them by force prevent the other from erect- 
 ing hurdles, Sec. (9) and though trespass does not lie against a 
 tenant in common for taking the whole pi'ofits, 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 trespass cjiiare clausumfngit, or an ejectment, may be sup- 
 ported .(^) 
 
 Though the entry were lawful, yet by a subsequent abuse of 
 an authority in law to enter, as to distrain. Sec. (except for rent 
 or poor's rates,)(7i) the party may become a trespasser ab itii- 
 tio iriv^ and if an officer neglect to remove goods attached with- 
 ina reasonable time and continue in possession, his entry becomes 
 a trespass ab initio ;{x) so in the case of a distress for rent, if 
 the party remain in possession more than five days,(z/) or turn 
 ihe plaintiff's faniiJy out of possession ;(z) but in case of an 
 authority myact to enter, an *abuse of such authority will not ^ Igl 
 
 in general subject the party to this action. (c) 
 
 In the immediately 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 another., and of cattle., iJfc. Thus a party 
 may be sued in respect of his previous consent or request that 
 the trespass may be done : as if ^ command or request B to 
 beat C, or to take his goods, or to commit a trespass on his 
 land, and B do it, this action lies as well against A as against 
 B ;{b) as if A direct the sheriff to levy particular goods, not the 
 
 (r) 8 T. R. U5. Com. Disj. Es- (x) 2 1$!. Rep. 1218. 
 tate, K. 8. (.") '-^ ■'^tia- 7\7. 1 11. Bl. 13. 
 
 (.<!) Co. Lit. 200, b. (:) 1 East, 139. 
 
 (0 Co. Lit. 190. b. 3 Wils. 119. (a) Lane, 90. Bae. Abr. Trespass, 
 
 12 Mod. 567. B. 2 T. R. 160. 
 
 (m) 1 II. Bl. 1:5. {b) Ante, 67, 68. 2 Bl. Rep. 1055., 
 
 (7y) Bac. Abr. Trespass, B. Six Salk. 409. 4 Inst. 317. Bac. Abr- 
 
 Carpenters' Case, 8 Co. 146. 2 Bl. Trespass, G. Cora. Dig. th. Trespass, 
 
 Rep. 1218. Clayt. 44. C. 1. 
 
 Vol. I. [17 ].
 
 181 OF THE FORM OF ACTION. 
 
 IV. Trespass, property of the defendant in the £\ction.(c) Itinay alsobe sup- 
 ported against a person not being an infant or ftme covert^ who 
 (iftevwardu assents to a trespass committed for his use or bene* 
 ljt,(r/) though not so as to subject him for a forcible entry -.{e) 
 so for taking goods, even to subject the parly assenting for 
 an abuse of an authority in law as a trespasser ab initio ;(/) 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 be wrongfully take the goods of C, A is not 
 liable ;(5^ the liability of a sheriff being an exception ;(/0 
 ^ 182 and the mere acceptance of goods illegally taken by *anothei, 
 does not always furnish evidence of an assent ;0) as if a pound- 
 keeper receive goods illegally distrained; (A-) but in these cases, 
 if the party alter demand withhold the goods, trover may be 
 supported agaiiist him ; and as we have already seen, unless 
 there be an actual consent to the trespass either before or after 
 it was committed, even a master is not liable in an action ot 
 trespass for the act of his servant, though case may be support- 
 ed against him in some instances, for inj\«:ies in respect of 
 which the servant is liable in trespass. (/) 
 
 \Vc have already partially considered the liability of a person 
 for the acts qf his cattleXin) In those cases in which the de- 
 fendant is not liable unless he had notice of the propensity of 
 his cattle, as in the instance of a dog biting mankind, sheep, 
 &c. or an unruly bull doing some injury, the remedy is in gene- 
 ral by action on the case :(?.) so for the consequences of bring- 
 ing an unruly horse into an improper place. (.0) But if the ani- 
 mal were natqrally of the propensity to do the mischief com- 
 plained of, as horses and cattle to trespass on land, though the 
 
 (c) 2 Roll. 553, 1. 5. la (i) 2 Koll. 555, 1. 50. 
 
 \d) Ante, 67. Cowp. 475. 3 Wils. (A:-) Cowp. 476. 
 
 377. (0 Ante, 131. 1 East, 106. 2 Roll. 
 
 (0 4 Inst, 317. Co. Lit. 180. b. 11. 553.1.25. 
 
 4. (w) Ante, G9, 70. 
 
 (/) Lane, 90. («) Id. ibid. Lutw. 90. Cro. Car 
 
 .(5) 3 Wils. 312. 317. 1 East, 108. 25. Ld. Raym. 608. 1583. 12 Mod, 
 
 Ante, 6S, 69. < 333. Dyer, 25. pi. 162. 
 
 (A) Ante, 67J 68. (0) Vcntr. 295.
 
 OF THE FORM OF ACTION. X82 
 
 owner had no notice in fact of their propensity, the remedy is ly. Trespass. 
 trespass.(/0 
 
 Trespass may also be supported for an injury *committed by * 1^3 
 'Auimah /tree naturce or notoriously ferocious, and which have 
 not been properly confined. (•:«) 
 
 Jl. U.yi)E/t COLOUR OF LEGAL PROCEEDLVGS 
 
 The application of the action of trespass to injuries com- 
 mitted under colour of a legal proceeding, may be considered 
 Under the seven following heads : 
 
 First. In general, no action whatever can be supported for 
 any act, however erroneous, if expressly sanctioned by the judg- 
 ment or direction of one of the superior courts at WestDibi' 
 .Iter, or even by an inferior magistrate, acting within the scope 
 of his jurisdiction. (-r) In the only exception to this rule, that 
 of a judgment obtained by threats or undue influence, an ac- 
 tion of trespass against the person guilty of such conduct ap- 
 pears to be the proper remedy ;(j/) and when in inferior courts 
 the error in the pi*oceeding is such as to render it an excess of 
 jurisdiction, trespass may be supported for any thing done un- 
 der such proceeding ;(2) and in case of an error by a mmisterial 
 officer, this action may be supported, if the injury complained 
 of was committed with force and immediate. (o) 
 
 *Sccojidhj. When the court has no jurisdiction oxtv Xhe sub- ^ 104 
 
 ject matter, trespass is the proper form of action against all tho 
 parties for any act, which, independently of the process, would 
 be remediable by this action, or by trover, if goods have been 
 taken ;(6) and it hus been decided, that when the proceedings 
 
 (/)) Ante, 69, 70. 2 Roll. Abr. (»/) 1 T. R. 538. 2 Bl. Rep. 1055. 
 
 568. N. 1.15. 3 Bl. Com. 211. 1 Ld. (i) 1 East, 64. Sir W. Jones, 
 
 Raym. 608. 1583. Bac. Abr. Tres- 178. Hob. 6,3. 2 Bulst. 64. Rep. 
 
 psss, G. 2. temp. Hardw. 62 to 72. I Wils. 232. 
 
 (w) Ante, 70. Ld. Raym. 1 583. 3 1 T. R. 545. 
 
 East, 595, 596. ' (u) 1 Ld. Rayra. 471, 1 Salk. 39^ 
 
 (x) 7 T. R. 634. n. a. 1 Wils. 2*2. 2 T. R. 225. 
 
 1 T. R. 5*5 3 Bl. Rep. 68^ (b) Hardr. 48;?
 
 184 OF THE FORM OF ACTION. 
 
 2V Trespass, in the court, having no jurisdiction, are adopted by a party 
 with ;m express malicious nz^e?!^, though there be a demand 
 recoverable elsewhere, an action on the case may be support- 
 ed ;(c) or where the party maliciously and unduly issues a se- 
 cond Jieri facias.(jl) Trespass is also the proper remedy, 
 where an inferior court has jurisdiction over the subject mat- 
 ter, but is bound to adopt certain forms in its proceedings, 
 from which it deviates, and whereby the proceedings are ren- 
 dered coram ?ion judice ;(e) but it lies not for arresting a per- 
 son privileged either /lersonally or localhj, but case is the only 
 remedy.(/) 
 
 Thirdly. When a court has jiu'isdiction, but the proceeding 
 is defective, as being irregular or void, trespass against the at- 
 torney and plaintiff is in general the proper form of action ;{g^ 
 and in the case of Morgan and Hughes,Qi) it was decided, that 
 an action on the case could not be sustained against a magistrate 
 
 *■ 18v5 ioJ' issuing an irregular warrant, *though maliciously ; and 
 
 that the action should have been trespass ;0) for in general no 
 action can be supported aguinst a magistrate, for any thing 
 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 ; but with regard to a plaintiff issuing irre- 
 gular process, there seems no reason why he should not be at 
 liberty to support an action on the case, if he had no cause of 
 action, and proceeded maliciously as well as without founda- 
 Uon,(A) for it would be allowing him to take advantage of his 
 Ovvn wrong, to suffer him to turn the plaintiff round on such 
 an objection, after the plaintiff in an action on the case had 
 proved the malicious and unfounded conduct of the defendant. 
 Fourthly. When the process has been 7?iisaji/ilied, as when ji 
 or his goods be taken upon process against B, trespass is in 
 
 (c) lOCo. rf). a. 2Stra. 993. Rep. .srg. 2 Bills t. 6*. 1 Mod 209. Sir 
 
 temp. Hardw. 62. 69. 1 Leon. 84. W. Jones, 171. 
 
 89. Hob. 63. SWils. 345. 2 Wils. (5) 3 Wiis. 341. 368. 376. 2 BL 
 
 3(>i. 305. Sed vide 2 T. R. 225. Rep. 845. 
 
 (_d) Hob. 205, 206. (A) 2 T. R. 225. 
 
 (<>) Sir W. Jones, 171. 1 Kast, (/) Sec also 2 Stra. 710. 
 
 61. Rep. temp. Hardw. 71. Hob. (.7) 1 T. R. 545. 1 Wils. 232, 
 
 63. 2 Bulst. 64. (k) Sly. 378. 2 Wils. 302. 306- 
 
 (/) 10 Co. 76. b. 6 Co. 52. n. 2 Hob. 205. 266. 
 Bl Kep. ilgg, Dong. 646. 3 Wils,
 
 OF THE FORM OF ACTION. 185 
 
 general the only remedy ;(/) or if there be a misnomer in the ir. Trespass. 
 process, though it be executed on the person or goods of the 
 party against whom it was in fact issued. (»0 
 
 Fifthlif. When the process of a court has been abused^(n) 
 trespass against the sheriff and his officer committing the abuse 
 is the proper action, *if the conduct of the officer was in the ^ ] gg 
 first instance illegal, and an immediate injury to the body, pei'- 
 sonal or real property ; as if the officer arrest out of the she- 
 liff's bailiwick,(o) or after the return day of the ■writ.(/i) or if 
 he break open an outer door, ^c.{q) so though the conduct of 
 the officer wat in the first instance lawful, but he abused his 
 authority, and thereby became a trespasser ab initio :(r) and in 
 some cases, though the abuse be merely a noriftasance, tres- 
 pass is the proper remedy, as if a sheriff neglect to return a 
 bailable la(ica(,U) or to discharge the party out of custody 
 when he ought to do so, as for fees not due.(?) These rules 
 also hold as to the ministerial officers of courts of inferior ju- 
 risdiction, who abuse the trust reposed in them. However, in 
 general, when the act complained of consists of a mere nonfea- 
 aance^ as if the sheriff, or a magistrate, Sec. improperly refuse 
 bail, or to act, Avhen they should do so, an action of trespass is not 
 the proper remedy, but case.(20 
 
 Sixthly. When a ministerial officer proceeds ivithout ivar- 
 rant, on the information of another, trespass, and not case, is 
 the proper form of action against the informer, if the inlbrma- 
 uon turn out unfounded -/^tj) and when an officer proceeds 
 "without warrant and without foundation, upon his own appre- H'^ ]^g^ 
 hension, though there was probable cause, trespass is the pro- 
 per form of action against him.(^) 
 
 Seiienthiy. But no person who acts upon a regular writ or 
 warrant can be liable to this action, however malicious his con- 
 
 (/) Wils. 309. 2B1. Rep. 833. 1 (s) Com. Dig. tit. Return, F. 1. 
 
 Bulst. 149. -Moor, 45 r. Hanlr. 32'i. (f) 1 Wils. 153. 
 
 (ffi) 6 T. K. 234. 8 East, 528. (k) Ante, 137. 3 B. & P. 551 
 
 (») 2 T. K. 148. 1 Leon. 323. Ci-o. Eliz. 196. 3 "\^"ils. 
 
 (o) Sir T. Jones, 214. 2 Bl. Rep. 342, 343. 
 
 854. (-.0) 6 T. R. 31C. Doujf. 359. 
 
 (/») 2 Esp. Rep. 583. \x) 1 Sulk. 59G. 1 Ld.Raym. 454 
 
 (7) Cowp. 1. 3 B. k P. 223. 2 Stra. 820. 
 
 (;•) Bac. Abr. tit. Trespass, B. 2 
 Bl. Rep. 1218
 
 ]87 OF THE FORM OF ACTION. 
 
 IV. Trr!)pass. cluct, but case for the malicious motive and proceeding is the 
 only form of action. (y) 
 
 Readmgs,8{c. 'J'he declaration in this action contains a concise statement of 
 the injury complained of, whether to the person, personal or 
 real property,(z) uiid should allege that such injury was com- 
 niitted vi ce armisyia) and contra /iacvm.{b) The general issue 
 is, not tjuilty of the trespasses as alleged by the plaintiff i and 
 under it few matters of defence can be given in evidence, and 
 consequently the pleadings in this action require much attention. 
 In an action of trespass to the person, or to real property, if 
 the diimages recovered by verdict be under 40s. the plaintiff 
 will in general recover no more cost.-i than damages ;(c) but 
 where the injury is to a personal chattel, it is otherwise. (f/) 
 Ihe verdict ■Audjud^rm^ntixve for damages assessed by the jury, 
 and for the costs. 
 
 ^ jg3 *r. EJECTME.VT.i*) 
 
 ?v Ejectment. This action lies for the recovery of the possession of real 
 property, in which the lessor of the plaintiff has the legal in- 
 terest, and a possessory right not barred by the statute of limi- 
 tations. (r) Mere nominal damages and costs are recoverable 
 in this action, and in order to complete the remedy for damages, 
 Mhcn the possession has been long detained, an action of tres- 
 pass for the me67ie profns must be brought after the recovery 
 ^u ejectment. This action may be considered with refer- 
 
 (iO Ante, 136. ST. R. 185. Boot {d) Post, vol. -2. 371. n. h. 
 V. Cooper, I T. R. 535. reported also (*) See the History of this action 
 
 in 3 Esp. Rep. 135. 3 3 &E P. 2-25. in 3 Bl. Com. SO^. The nature of it, 
 
 6T. R. 315. Hal. P. C. 151. 3 Wils. 120. 2 Burr. 66,", 8. Sel- 
 
 (r) See the precedents, post, vol. wyn, N. P. 616 to 674. Run. Ejeut- 
 
 -2. 367 to 303. and 371. n. c. niciit. 
 
 (a) Post, vol. 2. 368. n. t (:) 7 T. R. 47. 50. 2 Biut G6S. S 
 
 (/.-) Id. ibid. n.x. T. R. 2. 
 
 's) TiUu's Frao. 3d edit, 879, 680
 
 OF THE FORM OF ACTION. 18^. 
 
 eiv^e, first.) to the nature of the property or thing to be re- v. Ejectment. 
 tovered ; secondly, the light to such property ; unci, thirdly, 
 to the nature of the ouster or injury. 
 
 This action is in general only sustainable for the recovery of ut. For wha^ 
 
 . . . propL-rlv ii 
 
 the possession of property, upon which an entry might in point lies.(t) 
 olfact be made, and of which the sheriff could deliver actual 
 possession ; therefore, it is not in general sustainable for the 
 recovery of property which in legal consideration is not tangi- 
 ble, as for an advowson, a rent, common in gross, or other in- 
 corporeal hereditament, or a water-course, 8cc.(a) but it lies for 
 common appendant or appurtenant, if *demanded with the land *' 181> 
 
 in respect of which it is claimed, for the sheriff, by giving pos- 
 session of the land, gives possession of the common ;(/5) an 
 ejectment also lies for lithe, by the statute of 32 Hen. VIII. c. 
 7. s. 7.(c) it is, therefore, necessary to describe the nature of 
 the property in the pleadings, and the w ord " tenement'' is too 
 general •,{d) and when common is to be recovered, it must be 
 described as appendant or appurtenant ;(e) and if a water-course 
 be sought to be recovered, it must be described as land cover- 
 ed with water.(/) 
 
 With respect to the title, a party having a right of entry, 2d"iv. Tlie C- 
 whether his title be in fee-simple, fee-tail, in copyhold, or for 
 life, or years, may support an ejectment ; but the right of pos- 
 session must be of some duration, and exclusive, and therefore, 
 an ejectment cannot be supported for a standing place, Stc. or 
 w here a party has merely a license to use land, SccC^*) 
 
 The general rule governing this aclion is, that the plaintiff 
 must recover upon the strength of his ciun title, and cannot of 
 course, in general, found his claim upon the insufficiency of the 
 
 (t) For what an i-jectmcnt lies, (r) 3 Bl. Com. 20G. Bull. X. P 
 
 aiul the clescrii»tion, see Kun. Eject- 99. 2 Saund. 304. n. 12. 
 
 luent, 121 to 13C. Selwyii, N. P. (</) 1 East, 4-il. 2 Stta. S91. Post; 
 
 022 to 625. Post, vol. 2. 394, 395. vd. 2. 394. 
 
 («) 3 B!. Com. 20C. Yclv. 143. (i) 1 Stra. 54. 
 
 Kuii. Ejectment, 121 to 136. ( /) Yclv. 143. Co. TJt. 4. b. 
 
 (6) 1 Siia. 54. Rep. temii. Hard w. (j) Ante, 175. !^ E.ist, 190. 
 13r. Bull. N. P. 99.
 
 189 OF THE FORM OF ACTION 
 
 V. Ejectment, defendants ;(/t) for possession gives the defendant a right agaii^^t 
 every person who cannot shew a sufficient title, and the party 
 who would change the possession must therefore first establish 
 
 * 190 a *legal title ;(/) in which case an equitable title would be no 
 bar to the plaintiff's recovery ;(]) and this rule prevails, even 
 if a stranger who has no colour of title should evict a person who 
 has been in quiet possession short of twenty years, but who has 
 not a strict legal title ■,{k) but a lessee whose tenancy is deter- 
 mined, will not in general be permitted to dispute his lessor's 
 title.U) The lessor of the plaintiff must also have a strict legal 
 light ; and a mere equitable interest is not sufhcient to sup- 
 port this action ; and the doctrine that the legal estate cannot 
 be set up at law by a trustee against his cestui que trust., no 
 longer prevails -,{111) and a party cannot recover in ejectment 
 on an equitable title ;C") though where trustees ought to con- 
 vey to the beneficial owner, it will be left to the jury to pre- 
 sume that they have conveyed accordingly ; or where the be- 
 neficial occupation of an estate by the possessor, under an equi- 
 table title, induces a probability that there has been a convey- 
 
 ■•^' 191 ance *of the legal estate to such possessor \{o) but when the facts 
 of the case preclude such presumption, the party having only 
 the equitable interest cannot prevail in a court of law.(/i) 
 
 The lessor of the plaintiff must also in this action have the 
 sright 0/ /lossL'ssioii at the time of the demise laid in the decla- 
 
 (/() 5 T. K. 110. n. 1. East, 246. any tillc may support trespass, deti- 
 
 (i) 4 Uurr. 2487. 1 East, 246. niie or ti-ovci", against a stranger who) 
 
 Run. Ejectment, 15. 5 T. 11. 110. 2 takes away the property : see 2 
 
 T. R. CS4. 7 T. R. 47. Satind. 47. c. And it seems better 
 
 ( /) 5 East, 139. policy to protect the quiet possession 
 
 (h) 2 T. R. 749. I East, 24r>. 2 of huul against any person but the 
 
 East, 469. Scd qusere, for it is clear real owner, than to encourage a strug- 
 
 that trespass would lie in such case gle for the possession by a party hav- 
 
 against a stranger, 1 East, 244. and ing no colour of title. 
 
 according to Allan r. Rivington, (?) 2 Bl. Rep. 1259. Scd vide 4 T. 
 
 2 Saund. 111. priority of possession R. 683. Peake, L. E. 13. 
 
 alone gives a good title to the lessor of (;») 5 East, 138. 
 
 the plaintift' against the defendant and (/i) 7 T. R. 3. 49. 8 T. R. 122. 8 
 
 all the world, except the person w lio East, 248. 263. 
 
 has a better title. In the case of per- (o) Id. ibid. 
 
 sonal property it is clear that a per- (/>) Id. ibid. 
 
 Son having possession, though w ilhcut
 
 OF THE FORM OF ACTIOX. 19i 
 
 ration ;(y) and therefore, the doctrine which formerlj- prevail- ^' Ejectment. 
 ed, 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 ;(?*) and a remainderman, 
 or reversioner, cannot support this action whilst the right of 
 possession is in another ; nor can it be sustained where the 
 right of entry of him who is entitled to the estate is taken 
 awc>y,(,«) either by twenty years' adverse possession, (?) or by a 
 descent from a person who made the ouster to his heir, in 
 which case, if the disseisor had had five years' quiet posses- 
 sion, a writ of entry must be resorted x.o-,{n) or by a disconti- 
 nuance.(T') in which case the remedy for the issue in tail is a 
 writ of formedon.(TO) 
 
 An actual entry is not in general necessary for the support 
 of this action, as it is in tresp.iss, but to avoid a fine it must be 
 niade;C:r) and in *many cases an entry is advisable ; thus an * 192 
 
 ejectment may be brought even after twenty yearn' adverse 
 possession, if there have been an actual entry within the twen- 
 ty years, and the ejectment be brought within a year after such 
 entry ;(j/) and trespass will not lie for mesne profits, which ac- 
 crued before an actual entry made to avoid a fine, but the par- 
 ty's remedy for the anterior profits is only in equity. (r) 
 
 This action is only sustainable for what in fact, or in point sdiy. The ia- 
 of law, amounted to an ouster or dispossession of the lessor of ^"'-' ' 
 the plaintiff ;(a) for if there be no ouster, or the defendant be 
 not in possession at the time of the bringing of the action, it 
 will fail ;(6) and in such case, the plaintiff should proceed by 
 action of trespass. An actual ou&ter may be by driving cattle 
 out of the land, or by not suffering the party to occupy it ; and 
 
 (7) 8 T. R. 2. 7 T. R. 47. 2 East, (r) Supra, note s. Sel« yn, N. P 
 
 257. 1 T. R. 600. G.Vi to G57. 
 
 (r) Id. ibid. Run. Ejectment, lOD. (w) 1 Saund. 319. a. 261. n. 3. Run. 
 
 SEa-st, 449. Ejeetjnent, 42. 3 Bl. Cora. 206 
 
 (s) 3 Bl. Com. 206. 171. Run. Bull. N. P. 99. 
 Ejectment, 234. 242. Bull. X. P. 99. (.v) 1 Saund. 319. b. 261. n. 3. 
 7 East, 319. (ii) 1 Saund. 319. c. 
 
 (0 21 Jac. I. c. 16. 7 East, 299. (:) 7 T. R. 727. 1 Saund. 319. b, 
 
 (w) 3 Bl. Com. 176. 206. Run. («) 3 Bl.Com. 199. 
 Ejectment, 42. supra, note s. </>) 7 T. K. 527. 1 B. & P. 573. 
 
 Vol. I. [18 "j
 
 192 OF THE FORM OF ACTION. 
 
 V. Ejectment, in such case, even one tenant in common may support an action 
 against his co-tenant, but in general the mere perception of 
 all the profits by the latter will not amount to an ou.'iter.(c) 
 
 The requisites of the declaratmi in this action- are pointed out 
 in the second volume. (c?) The count gr counts should be on 
 the demise of the person entitled to the Itgal estate, and to 
 the right of fiossessioji^ at the time of the supposed demise, (f) 
 and the premises m.ust be described with certainty. (y) 
 
 * 193 *lf the defendant appear, he must, by the terms of the con- 
 
 sent rule, plead only the general issue, though he may by leave 
 of the court plead to the jurisdiction (5") The damages we 
 have seen are merely nominal, and it is usual to remit them, 
 in order to recover a real compi nsation in an action of trespass 
 for the mesne profits. Full costs are recoverable, but when 
 the judgment is against the casual ejector by the default of the 
 purty in possession, the only mode of recovering the costs is 
 by the action of trespass for the mesne profits, which much 
 resembles the common action of trespass, and the particular 
 properties of which are stated in the work referred to in the 
 notc.(/!) The judgmejit is, that the plaintiff do recover his 
 term (or terms according to the number of demises in the de- 
 claration) of and in the tenements, and (unless the damages 
 be remitted, as is most usual) the damages assessed by the 
 jury with the costs of increase. 
 
 eOJ^'SEQUEXCES OF MISTAKE IJ\' FOIfJI OF AC'J^JOJW 
 
 Consequences We have already seen that the courts consider it of great im- 
 
 of mistake in i , i , • , t ■,• m 
 
 form of action, portance that the boundaries between the dinerent actions 
 should be preserved ;(z) and the consequences of a mistake in 
 
 * 194 the *application of the remedy are very material. When the 
 objection to the form of the action appears upon the face of 
 the declaration, it may be taken by demurrer, motion in arrest 
 
 (c) Run. Ejectment, 191. Co. Lit. (g) 8 T. R. 650. 1 Bl. Rep. 897. 
 
 199. b. (It) Run. Ejectment, 438 to 446 
 
 (<■/) Post, vol. 2. 394. et seq. Posit, vol. 2. 388, 389. 
 
 («?) 7 T. R. 47. 5 East, 132. (/) Ante, 80. 6 T. R. 129-. 
 (/) Post, vol. 2. 394. n. e.
 
 OF THE FORM OF ACTION. 194 
 
 of iudement, or by writ of errbr, but not as a ground of non- Consequences 
 
 J tt ' J "-" of mistake in 
 
 suit, and the defendant will not be entitled to costs, when the formojuciion. 
 judgment is arrested ;{]) but when the objection does not appear 
 upon the face of the pleadings, it must be taken as a ground of 
 nonsuit, ar^d the defendant will not be entitled to costs ;(/:) thus 
 where the plaintiff in an action on the case, stated tnat the de- 
 fendant loilfully drove his coach and horses aguinst tlic plain- 
 tiff' 's carriage, the court arrested the judgment, on the ground 
 that it appeared from such allegation that the action siiould 
 have been trespass and not case ;(/) and where it appeared upon 
 tlie 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 shew cause why a nonsuit should 
 not be entered Lord Alansfidd observed, that if the court should 
 order a nonsuit to be entered, the plaintiff must pay t!ie de- 
 fendant his costs ; but that if the judgment was arrested, each 
 party must p.iy his own costs; but that as it appeared upon the 
 declaration in that case, that the defendant might have demur- 
 red, and thereby have avoided the costs of the subsequent pro- 
 ceedings, the court would arrest the judgment, 'and not per- "^ 195 
 mit a nonsuit to be entered ;(?«) but where the action was in 
 asj>um/isit 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 conse(|uently the defendant could not demur, or 
 avail himself oi it otherwise than on the trial, it was decided that 
 the plaintiff was properly nonsuited. (?2) 
 
 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, and the de-* 
 fcndant cannot piead in bar the proceedings in the first inefiec- 
 tual suit.(o) Thus if the plaintiff by mistake bring trespass in-" 
 stead of trover, and judgment be given against him on that ac-" 
 count, the defendant cannot plead it in bar to an action of trover 
 
 O') I B. k P. 470. 6 T. It. 125. (m) Cowp. 407. But see Canipb.- 
 (Sowp. 407. N. V. 250. 
 
 (A) Cowp. 407. 4l4. (") Cowp. 4l4 to 419. 
 
 (/) T. a 125. 6 T. K. ISS. 1 (o) 2 Saund. 47. 1. and see 3 Wils. 
 Bast, 109. 309.
 
 195 ^i" 'flli^ FORM OF ACTION. 
 
 Consegiieiicr^ brought aftcrwaids against him ;(/0 and if the plaintiff misstate 
 Jonn of action, his caiise ol action, and the defendant dcniUi", the pluiniiff-U 
 ccrt.vinly not precluded iVoni commencing a fresh action, and 
 may icply to a plea in bar ol the judyiucni on demurrer, that the 
 sanie was not obli.incd on the merits -,(7) but if the defendant 
 plead, and the plainiilV take issue, and a verdict be lound for 
 the defendant, the plauitifl" vill he estopped from bringing a 
 fresh action ; or if he demin- to the plea in bar, and such plea 
 ^' 196 be sufficient, in that case also, no second action can be *com- 
 
 mcnced ;(?•) but if the plea were not sufficient, and the judg- 
 ment against the plaintifl' was on the defect in his declaration, 
 the former judgment against him will be no bar.(«) 
 
 OF JOLXDEIi OF ACTIO.XS.* 
 
 OfJoiniltr of Whcrc the plaintiff has two causes of action, which may be 
 . htioiis. . , , , ,.,.,,■ 
 
 joined m one action, he oui;ht so to proceed ; and 11 he brmg 
 
 two actions, the court will compel him to consolidate tlicm, and 
 to pay the costs of the appiic.aicin.(/} It is, therefore mate- 
 rial to ascertain w lien several demands m^iy be include -d in the 
 same action, 'lliis may be considered with reference \.o,Jirst, 
 the joinder of dilVerent /brwA- of action ; srcomlly, of (lifTerent 
 ri!;/ifs of action ; and thirdly^ the consequences of misjoinder. 
 1st Joiniki- '^ '^*^ joinder in action depends on the ybrw of the action, ra- 
 of . iMVr nt ^\^q^ x\-^-^ on the su!>Jrct matter of it ; thus in an action aeainst 
 
 fomts of ac- ... . . , . 
 
 tion. a carrier, if th.e plain .ifl' declare in assumfisii he cannot join a 
 
 count in trover, as he may if he 'declare against him in case, 
 or the joinder depends on the form of the action ;(w) and if a 
 
 (/>) Id. Ibiil. I'rac. 3d edit. 10 to 13. Com. Dig. 
 
 (<7) 1 Mod. '-Or. Viii. Abr. Judg;- Action, G. Bac. Abr. Actions in 
 
 ment, Q. 4. (ienLral, C. iJ Vin. Abr. 38. tit. Ac- 
 
 ()•) 1 :Mo(f. 20r. Vin. Abr. tit. tions, Joinder, U. c. Gilb. C. P. 5, 
 
 Tudgnicnt, Q. 4. 6, 7. 
 
 (;;) 1 Mod. '20r. Vin. Abr. Judg- (0 2 T. R. 639. Tidd's Prac. 5<1 
 
 mcnt, Q. 4. pi. 3. edit. 556. 
 
 * Tlie joinder of several /'er.<!0,';,v in (/<) Pw BuUer, J. 1 T. R. 9.77. 
 
 a suit lias p.lready been eonsidered. And see the judgment of LoihI £W«?;- 
 
 As to joinder of actions in gcnend, boroiiijh, Cli. J. ill 3 East, TO. and 
 
 see 2 Saund. 117. b. to 11'. e. Tidd's ante, 135.
 
 OF THE FORM OF ACTION. ^^197 
 
 cause of action, which *ought to be laid in assiim/isit, be im- Of Jolmkr oj 
 
 pio.perly laid in case, and joined with a count in trover, no ob- 
 
 jeciion can be taken with efFect on the ground of misjoinder, but 
 
 onjy the particular defeclive count should be demurred to.(x') 
 
 The result of the authorities is stated to be, that when the 
 
 same plea may be pleaded, and the same judgment, given on all 
 
 the counts of the declaration, or when the ccunts 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. (^r) By this rule 
 
 we may decide in general, what forms of action may be joined 
 
 in the same declaration. 
 
 In actions in /or7n ex cojitractu, the plaintiff may join as many 
 different counts as he has causes of action in assutvfidt ; so 
 also in covenant, debt, account, annuity, or scire facias. (x) 
 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 ; so may debt and detinue, though in these cases 
 the pleas are different, and in the latter the judgment also va- 
 ries ;(y) which joinder has probably been allowed, because the 
 practice is sanctioned by the entries in the Registrum Bre- 
 vium.{z) But v.herc the defendant would, on *bringing error * 198 
 on a judgment in debt founded on a specialty, be compellable 
 to find bail hi error in pursuance of the 3 Jac. I. c 8. it is not 
 advisable to join a count in debt on simple contract, the judgment 
 on which would not require bail in error ;(a) so several counts 
 may be joined in one action on a penal statute, for different 
 penalties of a similar nature, as for several acts of bribery. (6) 
 
 So in actions in form ex delicto, several trespasses may he 
 joined in the same declaration, (c) ant' several causes of action 
 in case may be joined with trover ■,{d) thus case against a com- 
 mon carrier, or for immoderately riding a horse, or for dis- 
 turbing the plaintiff in his right of common, or for hindering 
 
 {v) 6 East, 3.35, G. (r) Gilb. C. P. 5, 6, 7. Bac Abr. 
 
 0") 2 Sauiiil. lir. c. 1 T. R. 27f), Actions in General, C. 
 
 277. Bac. Abr. Actions in Genera!. («) 2 East, 359. Tidd's Prac. 3d 
 
 Com. Dig Aclijiis, G. edit. 1079. 
 
 (a) Bac. Abr. Actions in General, {b) 4 T. R. 229. 3 T. R. 103. 2 
 
 C. Com. Uig. Actions, G. 2 Vin. Vin. Abr. 44. pi. 49. 
 
 Abr. 42. 45, 40. {c^ 2 Saund. 117. b. 8 Co. 87. b. 
 
 f^) 2Sauml. 117. b. 1 "Wils. 252. 2 Vin. Abr. 38. &c. 
 
 (d) Id. ibid. 1 T. R. 277.
 
 198 OF THE FORM OF ACTION. 
 
 O.f Joinder «/ him from landing goods upon a yard of the defendant contrary 
 to agreement between them, or for not returning to ihe plain- 
 tiff a spaniel delivered to the defendant, to be tried and return- 
 ed in a reasonable lime, but keeping and detaining the same 
 from the plaintiff, may be joined in one action and with a count 
 in trover.(e) So in replevin, the plaintiff may in the same de- 
 claration count of several takings on different days, and at dif- 
 ferent i)laces in the same county. (/) And the plaintiff may 
 join trespass with a count for a battery of his servant per 
 
 * 199 quod servitium afiihit, or for debauching his *servant,(5-) or 
 
 trespass and rescue ;(//) though the loss of service, and conse- 
 quence of the rescue, are properly the subjects of an action on 
 the case ;{i) however, if these injuries be joined, they should 
 be stated to have been committed vi ct an/tis. 
 
 But in order to prevent the confusion which might ensue, if 
 different forms of action, requiring diflerent pleas and differ- 
 ent judgments 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 ex delicto. Thus, assumjisit and an action 
 on the case, as for a tort, cannot be joined,(y) nor assutnfisit 
 with trover,(A) nor trover with detinue. (/) 
 
 And with the aliove exceptions, counts in one species of ac- 
 tion cannot be joined with counts in another ; as assumpsit^ 
 covenant, debt, or account with each otber,(?n) nor trespass with 
 case, for they are actions of distinct natures, and the judgments 
 arc different, that in trespass being in strictness r/uod ca/iiatur, 
 and that in case quod sit in misericordia.{n) In criminal proceed- 
 ings, the joinder of different offences in an indictment does not 
 
 ^ 200 render the proceeding defective, *though it is matter of dis- 
 cretion in the court, on motion to quash an indictment so fra- 
 med. (o) 
 
 (e) M. ibid. (./•) I T. R. 2r6, 277. 1 Vent. 366. 
 
 (/) F. N. B. fiS. n. a. Bull. X. Cartli. 189. 
 
 P. .14. 2 Vin. Abr. 41, (A") '2 Lev. 101 . 3 Lev. 99. 1 Salk 
 
 C^) Allcyii, 9. Bac. Abr. Actions 10. 3 Wils. 354. 6 East, S3S. 
 
 in General,' C. 3 "Wils. IS. (0 Willes, 118. 
 
 (/i) 2 Lutw. 1249. Ld. Raym. 83. (wi) Bac. Abr. Actions in General, 
 
 Tidd's Prac. 3d edit. 1 1. n. u. C. 
 
 (z) Post, vol. 2. 26r. n. u. 293 to (?)) 1 Ld. Raym. 2*2, 273. 2 Saund 
 
 299- 117. e. 
 
 (o) 8 East, 46, 47. 5 T. R. 103.
 
 OF THE FORM OF ACTION, 200 
 
 Where the same form of action may be adopted for several %f^2'^'"' "-^ 
 distmct iniunes, the plaintiff may in general proceed for all in 'idly. Joinder 
 
 rf ^ . ot several 
 
 one action, though the several rights effected were derived ,.,>/(;,, of a,.. 
 from different titles ; but a person cannot in the same action tl'^|^'. oil'^^iU- 
 join a demand in his own right, and a demand as representative 
 of another, or in outer droit, nor demands against a person on 
 his own liability, and on his liability in his representative capa- 
 city.(/0 '1 he points which usually occur in practice, may be 
 considered as they arise in actions by and against partners, hus- 
 band and wife, assignees of a bankrupt, executors and admi- 
 trators, and heirs and devisees. 
 
 In actions by or against several persons, whether ex con- 
 tractu or ex delicto, all the causes of action must be stated to be 
 joint. Thus a person cannot bring a joint action against two, 
 and state in one part of the declaration that one of them assault- 
 ed and beat him, and in another part that the other took a^vay 
 his goods, for the trespasses are of several natures, and against 
 several persons, and they cannot plead to this declaration. (</) 
 But in the case of a survivor of several contracting parties, a 
 demand by or against him as survivor, may be joined with a 
 demand due in his own right. (r) 
 
 *We have already considered in what actions a husband and ^ 201 
 wife ought to join, or be joined ;(.9) and it is here only neces- 
 sary 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 the feme before marriage, or she 
 be the meritorious cause of action, and her interest must ex- 
 pressly appear on the face of every count. (0 And in an action 
 in form ex delicto for a personal injury, if the wife be joined, 
 the declaration must proceed only for torts to her individually, 
 and not for such wrongs as only affect the husband. («) And 
 for torts to the person or personal property, if she be joined, 
 the nature of her interest therein must be exprcsiily stated {v) 
 
 {p) Bac. Abr. Actions in General, (r) 3 T. R. 433. 6 T. R. 4Q3. 
 C. 2 Vin. Abr. C2. Com. Dig. Ac- T. R. 582. 1 Esp. Rep. 547. 
 tions, G. (s) Ante, 17. 42. 60, and SI. 
 
 (f/) 2 Saiind. 117. a. Sty. 153, 154. {() Ante, 20. 2 131. Hep. 12jtj 
 iT. K, 3G0. (?0 Ante, CI. 
 
 (r) Ante, 62.
 
 201 OF THE FORM OF ACTION. 
 
 Of Joinder of And an action on the case, cannot be supported against the 
 husband and wife, for words spoken by botlxCw) 
 
 The assignees of J, a bankrupt, and also of B, a bankrupt, 
 under separate commissions, cannot recover in the same action, 
 a joint debt due from the defendant to both the bankrupts, and 
 also separate debts due to each, and if in such an action, the 
 jury have assessed the damages severally on the separate 
 counts, the court will arrest the judgment on those counts, 
 Avhich demand the debts due to each bankrupt separately.(x) 
 But where the plaintiffs sued as assignees of ^and jB, and also 
 ^^^ as assignees of C, for a joint demand *due to all the bankrupts, 
 
 the declaration was holden good on a motion in arrest of judg- 
 ment. (y) If there have- been any promise to the assignees, or 
 cause of action since the act of bankruptcy, care must be taken 
 to insert some count in the declaration adapted to such demand ; 
 and where two partners became bankrupts, and the defendant 
 between the two acts of bankruptcy, 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 re- 
 eover, because they should have declared in one count for mo- 
 ney had and received to the use of the partner who last be- 
 came bankrupt, and of the plaintiffs as assignees. (z) 
 
 A plaintiff' cannot join in the same action a demand as executor^ 
 •with another in his own right.(a) The contradiction and doubts 
 in the different cases to be met with in the books upon this 
 point are merely in the application of the rule.(6j In the late 
 case of CoiViU v. lVatts^{c) it was decided, that a count upon a 
 promise to the plaintiff as administratrix, for goods sold and 
 delivered by her as such, after the death of the intestate, may 
 -'•^ 203 be joined with a count upon *an account stated with her as ad- 
 vdnis'ratrix, because the damages and costs when recovered 
 
 (w) Bac. Abr. Actions in Gtiieii!), («) I T. S. 489. 2 Saund. 117. d. 
 C. 2 Wils. 227. 3T. R. G59. 4 T. R. 277. Bac. Abr 
 
 (x) 3 T. R. 4.53. Actions iu General, C. 
 
 (?/) 3 T. R. 779. {!>) See the cases, 2 Saund. 117. d- 
 
 {-) 3 B. & P. dOS. 6 East, 405. 
 
 (f ) 6 East, 405.
 
 OF THE FORM OF ACTION. 203 
 
 would be assets, and Lord Ellenborough, Ch. J. expressed a ^^[^''"'^ "^ 
 wish, that the rule lard down in Bull v. P(ilmer,{d) had been 
 abided by, viz. that where the money ivhrn recovered, would be 
 nasels, the executor may declare for it in his representative cha- 
 racter ; and Grose, J. observed, that the best line to adopt in 
 determining, whether counts may be joined, is to consider, 
 whether the sum when recovered, would be assets, and La^v- 
 rence, J. observed, that the reason why promises made to a 
 plaintifl' in his own riglit, cannot be joined with promises to 
 him in his representative character, is, because the funds, to 
 •which the money and costs to be recovered, are to be afipiied, 
 or out of which the costs are to be paid, are different, and that 
 it appeared to liim, that those cases in which the rule had been 
 laid down, that counts may be joined, whenever tlie money re- 
 covered under them Avould be assets, afibrd the best guide. 
 The question of costs, is a matter of very different considera- 
 tion, on which many of the contrary decisions have proceeded. 
 The reason why an executor suing in his representative cha- 
 racter, shall not be liable to costs if he fail, is, because he is 
 supposed not to be cognisant of the contracts made by his tes- 
 tator ; but as he must be cognisant of all contracts made by 
 himself personally, though in his representative character, and 
 as he might declare upon *them in his own right, there is no * 204' 
 
 reason why he should be exempt from costs, in case he fail in 
 his action, and Lc Blanc, J. said, " the plain and intelligible 
 *' line is, that the counts may be joined whenever the money 
 ?' when recovered would be assets." It is therefore clear, that 
 an executor or administrator, may declare as such, for money 
 paid by him in that character, and may join such count with 
 counts on promises to the testator or intestate. (e) So money 
 had and received by the defendant, to the use of the phuntiff 
 as executor,(y) and an account stated with him as executor, 
 of monies due and owing to the testator,(^) or to the plaintiff 
 asexecutor.(/2) may be joined with counts on promises, to the 
 
 ((/) 'i Lev. iGi. {^) 5 E.i">t, 150. 6 East, 406. 403 
 
 (<") 3 East, 104. 1 T. It. 48'. 
 
 (./•) 3T.R. 569. SSramd. C-Jr, {h) 6 East, 40G. 40,3. ace. iLd. 
 208. Rayra. 437. 'J Saund. 117. H. semt 
 
 conf. 
 
 Vol.. I [ 19 1
 
 204 OF THE FORM OF ACTION. 
 
 Of Joiiuhrr of tcstator or intestate. And where the plaintiff declared as exc- 
 '*""" cutor upon a. bill of exchange indorsed to him in that character, 
 
 it Wits hoiden sufficient, (0 though in aiiotlicr case it was de- 
 cided, that an executor cannot join a count upon a bond given 
 to iiis testator, arid a count upon a bond given to him as execu- 
 tor, in liie same action. (y) Where six years have elapsed 
 since the death ol the tcstator, or intestate, or it may on any 
 otlier account be matei ial for the plaintiff to avail himself of a 
 promise or acknowledgaicnt since the death, counts should be 
 
 * 205 introduced in tlie declaration, on promises to the executor *in 
 
 that cluu\.cter,(A') for otherwise, such promise or acknowledg- 
 ment, CL.nnot be given in evidence. (/) In every count stating 
 debts or piomises to the executor or administrator in that cha- 
 racter, the word '' an" executor, Sec. must be inserted. (?w) 
 
 So in an action agahi&t an executor, a count cannot be in- 
 troduced, which would charge him personally, for the judgment 
 in the one case, would be dr bonis tesfatoris, and in the other, 
 dc bonis profiriis ;{n) and therefore a count for money lent to, 
 or had and received by, an executor as such, is not sustainable ;(c) 
 but an account, 'staled by the defendant as executor or admini- 
 strator, of monies due from the testator or intestate may be 
 joined with counts upon promises by the testator or intestate, 
 and this is the common mode of declaring against executors 
 and administrators, to save the statute of limitations ;(/;) and 
 though it has been considered that a count upon an account 
 stated by an executor as such, of monies due and owing from 
 him i\\ that character, cannot be joined with counts on promises 
 by the testator, on the ground that such account stated makes 
 
 ^ 20G ^'i^ executor personally *liubie,(5') yet it is submitted that such 
 
 {h IT.R. 4b7. 6 East, 410. 413. {o) 2 Saiincl. 117. d. 4 T. R. 347. 
 
 2 Tin. Abr. 48. pi. 9. 1 H. Bl. lOS. 
 
 ( /) 3 B. k P. 7. Sed vide 1 T. R. (/») 2 Saiind. 117. e. 1 H. Bl. 102 
 
 48r. 6 East, 405. Forrest's Rep. Exchequer, 98. where 
 
 (/;) See the form, post, vcl. '«. 5G an actual account has not been stated 
 
 to 58. by the defendant executor, add 
 
 (/) 3 East, 409. Willes, 29. counts as post, vol. 2. 61, 62. 
 
 (m) 5 East, 150. But see 2 Lev. (9) I H. Bl. 108. 114. 2 Saund. 
 
 110. 2 Vin. Abr. 47. pi. 6. 48. pi. 9. 117. d. Tidd's PrRC. 3d edit. 12. 2 
 
 2 B. is P. 424. B. k P. 224. 
 
 («) 2 Saund. 117. d. Hob. S8. 2 
 Lev. 228. 2 Vin. 45. pi. 52. 47. pi, 5.
 
 OF THE FORM 0F ACTIOX. 2(^6 
 
 nn account would not make the executor personally liable, and Of Joinder ?/" 
 as it lias been decided that an account stated nvith an executor 
 of monies due and owino; to him as such, may he joined \\\\.\\ 
 counts on promises to the testator, it is presuined that this ques- 
 tion would now meet with a different decision. (r) Whenever 
 an executor, &c. is sued upon promises by him in that cha- 
 racter, the words "«&■ executor," Ccc. must be inserted in each 
 count. (*) 
 
 The consequences of a misjoinder are more important than .iflly. Con.vj- 
 the circumstance of a particular count bein<^ defective, for in liiisjoinder. 
 the case of misjoinder, however perfect the counts may re- 
 spectively be in themselves, the declaration will be bad on a 
 tjcneral demurrer, or in arrest of jud.^ment, or upon error ;(/) 
 and the plaintiff oannot, if the declaration be demurred to, aid 
 the mistake by entering a nolle, firosequi^ so as to prevent the 
 operation of the demurrer.(w) though the court will in general 
 give the plaintiff leave to amend by striking out some of the 
 covm'ts on payment of costs. (it') In some cases, however, a 
 misjoinder may be aided by intendment after verdict,(Tr) *and * 207 
 by taking separate damages, or by entering a rcmittit damna^ 
 the misjoinder may be aided ;(.r) though it is said, that if as- 
 .nim/idt and trover be joined, and there be a verdict for the de- 
 fendant on the count in trover, that does not cure the declara- 
 ^ion.(.v) 
 
 OF THE ELECTIO.Y OF ACTWJWS. 
 
 In considering the application of each jjarticular action, we ofEhctinn of 
 have seen that the party injured frequently has an election of -^'"""/iv. 
 several remedies for the same injury. (-) As the due exercise 
 
 (r) Forrest's Rep. E.xchLMiiRT, 98. (t) 4T. H. ,348. 
 
 6 Kast, 4Ct5 K.-il.^. (w) '2 Lev. HO. Com. Dig. Ac- 
 
 (s) 2 B. & P. 424. Ante, '20.>. tion, G. '2 Vin. Abr. 4?. pi. 6. 
 
 (0 2 B. fct P. 4-24. iT.ll.3i7. I (,r) 11 Mod. 196. 2 Vin. Abr. 43 
 
 JI. Bl. 108. pi. 9. 3 T. K. 4,3.3. 
 
 (v) 1 H. Rl. 110, 111. 11,3, 114. 4 (.(/) 2Sauiid. 117.d. sed vid. supri.. 
 
 T. K. 360. Tidd's Prac. 3d edit. 650. (:) Com. Di- Action, M. Sty. 4 
 
 1 Sauiid. 207. c. Co. Lit. 145. a. 2 Bl. Kep. 1112.
 
 207 OF THE FORM OF ACTION. 
 
 Of Election of of this election is of great importance, it may be useful con- 
 ' ^ ^°"'^- cisely to state the principal points which direct the choice of 
 
 several remedies. And these may be Avith reference to, Ist^ 
 The nature of the plaintiff's right or interest in the mutter af- 
 fected. 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 joinder thereof in one suit. 
 5thiy. The nature of the deftace, and whether it be advisable 
 to compel the defendant to plead specially. 6thly. The venue 
 or place of trial. Tihly. The evidence to be adduced by the 
 ■^ 208 plainliif or defendant. 8thly. The *costs. 9thly. The judg- 
 ment and execution. And, lothly. Bail in error. 
 
 1st. A strict legal title is essential to the support of some re- 
 medies, but in others the plaintiff's bare possession of the 
 property affected is sufficient. Where the title of the plaintiff" 
 may be doubtiul, it is in general advisable to adopt the latter 
 description of remedy. Thus an action of trespass to real pro- 
 perty, may be supported against a stranger, by any person in 
 the actual possession, though he have no title, but in eject- 
 ment the lessor of the plaintiff must recover on the strength 
 of his own legal title ;(a) and therefore where the title of the 
 party injured is doubtful, the action sliould be trespass ; and as 
 the defendant in replevin for a distress taken damage feaaarit, 
 must in his avowry or cognisance state, and if denied, prove, 
 a title to the locus ifi 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 occupier of the 
 land may be doubtful. (6) On the other hand, where the party 
 interested can clearly establish a title in himself, or in his trus- 
 tee, 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 avow-? 
 ries upon diftierent titles, and in ejectment there may be several 
 counts on demises by different parties. 
 * 209 *2dly. In actions in form ex delicto, as in case and trespass^ 
 
 the defendant cannot be arrested without a special order..of the 
 
 (rt) 1 East, 244. 24C. (/') 1 Saund. 340. e. n. 2. Wille^ 
 
 221.
 
 OF THE FORM OF ACTION. 209 
 
 court or a judge, and it is not usual to grant such order, except Of Election of 
 ■where there has been an outrageous battery, or the defendant *'^'^"^"*- 
 is about to quit the kingdom ;(c) and, therefore, in cases 
 where it maybe material to have the security of bail, the action 
 should, if possible, be framed either in trover or in assumfisit 
 for money had and received, adding such other special counts 
 as may be advisable under the circumstances of eaci* particular 
 case.(f/) Where however the defendant has been already 
 arrested, the form of action must correspond with the affidavit 
 to hold to bail and the ac eticun part of the latitat or other pro- 
 cess ; for otherwise, if the cause of action exceed AQl.{e) the 
 defendant will be entitled to his discharge out of custody on 
 filing common bail.(/ ) But this will be the only consequence, 
 for the court will not on this account set aside the proceedings 
 against the defendant for irregularity.(^') 
 
 Sdly. In an action in form ex contractu we have seen that if a 
 person who ought to be made co-filaintiff be omitted, it is a 
 ground of nonsuit,(/2) except in the case of persons suing in 
 uuter droits as co-executors or co-assignees ;{i) whereas in ac- 
 tions in form rx delicto, the non-joinder of a party who *should * 21C 
 have been a co-plaintiff, can only be pleaded in abatement ;(j) 
 and consequently, the latter form of action is in many instances 
 preferable. "Wc have also seen that the joinder of too many 
 defendants in an action in form ex coritractii, is a ground of 
 nonsuit,(/t) and that the omission of a person who ought to be 
 made a defendant, may be pleaded in abatement ;(/) but that in 
 actions in form ex delicto.^ the omission of a party jointly con- 
 cerned in committing the injury, cannot in general be pleaded 
 in abatement, and that when the offence may in point of law 
 have been committed by several, the joinder of too many de- 
 fendants will be no ground of objection ;(?«) and, therefore, 
 where it may be doubtful how many persons should be made 
 defendants, it is advisable to declare in case, &c. in preference 
 
 (0 Tidd's Prac. 3(1 edit. 151. (/,) Ante, 7. 
 
 {(l) 3 ]i0%x, 70. (/) Id. ibid. n. g. 3 B. & P. 465, 
 
 (0 1 H. BI. 310. 2Saund. 52. .q. ( /) Ante, 53. 
 
 (/) 7 T. U. SO. 8 T. K. 27. 5 T. (k) Ante, 31. 
 
 K. -iO'J. 2 Kast, 305. 1 H. Bl. 310. (/) Ante, 29. 
 
 fC'-) 6T.R.363. 0?0 Autc, 75.
 
 210 ' GF THE FORM Ol" ACTION. 
 
 Of Election 0^ to an action of aasumfisUXn) Sou distress for a rent charge is 
 frequently preferable to an action, because in the latter, all tlie 
 pernors of the estate charged with the payment, must be join- 
 ed.(o) 
 
 4thly. Where the plaintiff has several demands, recoverable 
 in different forms of action, he may and frequently ought to 
 proceed for the whole in one.(/;) Thus a party may declare 
 specially against a bailee for neglect, cither in assumpsit or in 
 case ; if he have also a money demand against the bailee, due 
 
 * 211 °" simple *contract, he should declare for both causes of ac- 
 tion in aiisu7ii/hnt ; but if instead of the money demand, he 
 have a distinct cause of action in trover, the declaration should 
 be in case, in order to avoid the expense of two actions. (9) So 
 for a money demand, due on a simple contract, the plaintiff in 
 general has an option to declare, either in assum/isit or debt ; 
 if there be also another demand of an unliquidated nature, 
 founded on a simple contract, it is then proper to declare in 
 assizm/isity for both causes of action ; but if there be no un- 
 liquidated demand, or if part of the demand be due on spe- 
 cialty, debt may be preferable. 
 
 5thly. By a judicious choice of the remedy, the defendant 
 may be frequently precluded from availing himself of a de- 
 fence, which he miglit otherwise establish. Thus in assumfi- 
 sit against a person, who has been a bankrupt, for money had 
 and received by him before his bankruptcy, however tortiousiy, 
 his certificate would l)e a sufficient bar, but by declaring ix\ 
 trover, he will be deprived of such defence. (r) And where 
 goods have been sold l)y a person in contemplation of Ijankrupt- 
 cy by way of fraudulent preference to a creditor, the remedy 
 by the assignees should be trover, and not ansuwfinit as for 
 goods sold and delivered, because in the latter form of action, 
 the defendant might avail himself of the debt from the bank- 
 
 -^ 91 r> rupt, as a set-ofT.U) The *election of the form of action, is 
 also frequently material, in order to compel the defendant, 
 either to take issue upon some particular allegation in the de- 
 
 (/•i) 3 East, 62 to 70. (<?) 3 ^'a-t, "0. 
 
 (0) Co. Lit. 1C2. b. 1 Saund. 282. {r) 6 T. K. 6'J5. Ante, 145. 
 
 n. 1. and 284. n. 3. and 4. (s) 4 T. K. 211. 2 H. Bl. 135- 
 {l>) 2 T. K. 639. Ante, 196..
 
 OF THE FORM OF ACTION. 2l2 
 
 «.laration, instead of putting the plaintiff to prove the whole of of Elect' isr 
 his case, or to compel the defendant to plead his ground of de- Actions. 
 fence specially.. f) Thus in covenant for rent, the defend- 
 ant must plead to some particular allegation and there is no 
 general issue, but in debt on a lease he may plead nil -debety 
 and thereby compel the plaintiff to prove the whole of his de- 
 claration. (u) So trespass is in general preferable to case, be- 
 cause in the latter, under the general issue, the defendant may 
 not only dispute the plaintiff's statement of his cause of action, 
 but may give in evidence most matters of defence, but which 
 he must plead specially in trespass. (v) 
 
 6thly. In some cases, there may be two or more actions in 
 effect for the same injury, the one local, and the other tran- 
 sitoiy. Thus debt for rent, by the assignee or devisee of the 
 lessor, against the lessee, is local, and must be laid in the 
 county wlrere the estate lies ; {tv) but in covenant^ at the suit of 
 the same parties, upon an express covenant for the payment 
 of rent, Sec. the venue is transitory ;(a;) and consequently the 
 latter form of action should be adopted, where it may be ad- 
 visable to try the cause out of the county where the estate is 
 situate. 
 
 *7thiy. The evidence must also be attended to in the election ^91^ 
 of actions ; thus it is frequenUy more convenient that the ac- 
 tion 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 turned round upon the form of the action, as there may , 
 in many instances, if case be brought.(y) 
 
 8thly. In actions in form ex contractu^ the plaintiff is in ge- 
 neral entitled to full costs, though he recover less than 40s. 
 damages, it having been decided, that the 22 and 23 Car. II, c. 
 9. does not extend to actions of g6sw7??/«zV, debt, detinue, or co- 
 venant ;{z) and therefore, it is not in general material, so far 
 as respects the costs, which of these forms of actions be adopt- 
 ed. But in trcftjiass for injuries to the, person, or to real pro- 
 
 (0 Ante, lis. ■ (x) Id. ibid. 
 
 C«) Ld. Kayiu. 1500. (i/) 3 East, 600. 
 
 (f) Ante, 145, 146. (:) Tidd's Pi-ac. Sd edit. S79, &89, 
 
 (w) 1 Saund. 238. 241. Sir W 
 Jones, 53.
 
 213 OF THE FORM OF ACTION". 
 
 Of Election of perty, if the plaintiff recover less than 40s. damages, he is not 
 ' ' '""*' entitled to more costs than damages, and therefore for such in- 
 
 juries, when practicable, it is frequently advisable to declare in 
 case or trover, in which full costs are usually recoverable.(«) 
 
 9thly. The action of debt is in general preferable to assumfi' 
 sit, or covenant, because the judgment therein by ?iil dicit^ Sec 
 is final, and execution may be taken out immediately, without 
 the expense and delay of a writ of inquiry, which is usually 
 necessary in assianjisit or covenant ;(b) and it is better to pro- 
 ^^ 214' ceed in debt, on *an award, than on tlie arbitration bond, because 
 in case of judgment by default on the latter, a writ of inquiry 
 is necessary, under the 8th and 9th William III. c. 2.(c) 
 
 lOihly. In an action of debt upon a money bond, or for rent, 
 or upon any specific contract, the 3 Jac. I. c. 8. compels a de- 
 fendant who brings error upon a judgment by nil dicie, See. ta 
 find bail in error ;(f/) but in any other form of action, as cove- 
 nant or assum/isil, no bail in error is required, unless the error 
 be brought after verdict ; therefore debt for rent, or upon a 
 mortgage deed. Sec. is preferable to covenant or assiimfidt. 
 
 The circumstance of a party having elected one of several 
 remedies by action^ will not in general preclude him from 
 abandoning such suit, and after having duly discontinued it, he 
 may adopt any other remedy. But in the case of a distress, if 
 the cattle escape, the party distraining cannot sue for the rent, 
 or trespass, unless it be shewn that the escape was wholly with- 
 out his default. (<?) ' 
 
 (a) 6 T. R. 129, I '^0. Tidd's Prac. (r/) Tidd's P/ac. 3d edit. 1075 to 
 
 5d edit. 880. lOSO. 
 (i) Ante, lOr. (e) 1 Salk. 248. 1 Ld. Raym. 719 
 
 (c) Post, vol, 2. 145. n. t.
 
 215 
 
 CHAPTER III. 
 
 OF PLEADING IV GENERAL. (*) 
 
 X LEADING is the statement of the facts which constitute 
 ;he pluinliff 's cause of action, or the defendant's ground of de- 
 fence, in a logical and Legal fonn ; it is the forniiJ mode of al- 
 leging that on the record, which would be the support or the 
 defence of the party in evidence. (tz) It is, as observed by Mr. 
 Justice Buller^{b) one of the first principles of pleading, that 
 there is only occasion to statcyizcAs, m hich must be done for the 
 purpose of informing the court, whose duty it is to declare the 
 law arising upon those facts, and of apprising the opposite 
 party of what is meant to be proved, in order to give him an 
 opportunity to answer or traverse it. I'he observations of Lord 
 Chief Justice De Grey on the structure of an indictment, are 
 very forcible, and equally applicable *to the pleadings in civil ^ 216 
 
 actions : " the charge must contain such a description of the 
 " crime, that the defendant may know what crime it is which 
 " he is called upon to answer, that the jury may appear to be 
 " warranted in their conclusion of ' guilty,' or ' not guilty,' 
 *' upon the premises delivered to them, and that the court may 
 
 (*) T forbear in Uiis jiractical trca- Doncj. 278. and sec the observations 
 
 lise to observe upon the history of on Com. Dig. Pleader, A. Bar. Abr. 
 
 pleading, or to notice the many oh- Pleas and Pleading, and the judg- 
 
 servations in the books upon the utili- ment of Lord Cliief Justice De Grey, 
 
 ty thereof; they are to be found in in Rex v. Home, CVnvp. G8'2. 683. &c. 
 
 Mr. Lav.es' Treatise on Pleading, I as to the general naiuru and object of 
 
 to 33. and a tract entitled, a Summa- pleading, 
 
 ry of Pleading, 1 to 7. {b) Doug. 159. 
 
 (fl) Per liuUev, J. 3 T. R. W.). 
 
 Yoh. I. [ ^0 1
 
 216 OF PLEADING 
 
 " see such a definite crime, that they may apply the punish- 
 " ment which the law prescribes. The ceric.inly essential to 
 " the charge, consists of two parts, the mhtter to be charged, 
 *' and the manner of charging it."(<^) Hence the science of 
 special pleading may be considered under two heads : 1st. The 
 facts necessary to be stated ; and 2dly. The form of the state- 
 ment ; and these, together with some general rules of construc- 
 tion, and the division of pleadings, we will consider in the prc« 
 sent chapter. 
 
 /. THE FACTS Js'ECESSAltY TO HE STATED. 
 
 I. The fads In general, whatever circumstances are necessary to consti- 
 
 vecer,Hary to „ , . , , r i r , 
 
 be stated. tute the cause oi compuunt, or the ground or delence, must be 
 stated in the pleadings, and all beyond is surplusage ;(rf) facts 
 only are lo be stated, and not arguments or inferences, or mat- 
 ter of la\v.(e) There are some facts of such a public or genc- 
 
 ^' 217 ral nature, that the *courts ex officio take notice of them, and 
 
 which consequently ought not to be stated in pleading ; 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. 
 
 1st. Facts of The courts will ex officio take notice when, the Kini^ came to 
 
 •which tlie , /• r . , 
 
 coni-i vill ex the throne, (/) and of the King s proclamations ;(5-) and conse- 
 
 ticl^'shoukr"' q"cnlly, those facts need not be alleged in pleading ; but pri- 
 
 iiot be stated, vate orders of council are not considered as matters of law, or of 
 
 such public nature, as to render it incumbent on the judges ex 
 
 officio to take notice of thcm.C//) The courts are also hoiuid to^ 
 
 take notice of all the privileges of the crown. (z) 
 
 The time of holding every Farliamcnty and the prorogations 
 
 and sessions thereof,(y J and also Avhcre any parliament sat will 
 
 be taken notice of judicially, (A) and therefore, neither of these 
 
 facts should be stated in pleading, and if either be misstated, 
 
 (r) Cowp. C82, 68.3. (A) 2 Lil. Prac. Reg. 303. 
 
 (>/) Covp. 683. 1 Ld. Royrn. 171. (i) Ld. Ruym- 980. 
 
 (e) Coup. 684. 5 East, 275. Com. (./) 1 Ld. Rayni. 343. Plovd. "". 
 
 Dig. Pleader, C. 78. Moore, 551. I Lev. 296. Std vide 
 
 (/) 2 Ld. Raym. 794. 791, 2 Mod. 240. Bac. Abr. Statute, L. 5. 
 
 Ig) 1 Ld. Jtaym. 282. (/<■) 1 Ld. Raym. 210. 343.
 
 IN GENERAL. 217 
 
 even in pleading a private act, not before the court, the pleading J '^■'^ /«c<s 
 
 . . . . 1-cce ^ary to 
 
 will be defective on demurrer, or in the case of a private act, on be st.ued, 
 
 the plea of md del record, or any other plea, putting in issue the 
 
 whole of the facts stated in the declaration ;(/) but the mistake 
 
 may be aided by verdict. (m) The courts will also take judicial 
 
 notice of the course of *proceedings, in either house of parlia- '^•^® 
 
 ment,(«) but not of the journals of either house, (o) which must 
 
 be stated in pleading and proved in evidence. (//) 
 
 Public statutes, and the facts which they ascertain, must be 
 noticed by the courts, without their being stated in pieading,(r/) 
 and it is only necessary to state facts, wliich will appear to the 
 court to be affected by the statute, (r) concluding in general with 
 an express reference to the statute, as by the words " contrary to 
 " the form of the statute," &;c. and in the case of a public statute, 
 it is not advisable to recite any part of it, for a misrecital, with a 
 conclusion, " contrary to the form of the statute afcrtsaid^' 
 would be fatal. (.s) Where a statute has been recently made, it 
 is said to be necessary to allege that the facts took place after 
 the passing of tlie act.(?) The courts will not ex officio take no- 
 tice o{ private acts of parliament, and consequently such parts 
 of them as may be material to the action or defence, must be 
 stated in pleading ■,iu') and u misrecital of a private act, can only 
 be taken advantage of by plea o{nul «>/ record, or in assum/isity- 
 under the general *issue,(f ) thou:^h we have seen, that if the ^ 219 
 time or place of holding the pttrliament be misstated, it is a 
 ground of demurrer.(w) 
 
 The courts are also bound to take notice of all Common 
 Law Rights, and Duties, and of General Customs, and conse- 
 quently these ought not to be stated in pleading. (.r) Thus if 
 
 (I) Id. ibid. Cowp. 474. T. R. "-f.. Bac. Abr. Statute, L. 5. 
 
 (m) 2 Mod. 240. (0 I Saund. 309. n. 5. 
 
 («) 1 Saund. 1.5f. Burr. Sll. {u) 1 Bi. Com. 8C. Ld. R^ym. 3S1, 
 
 (o) 1 Ld. Ilaym. 15. 382. Doug. 97. Moore, 551. 1 Lev. 
 
 (/))Co\vp. ir. Doug. 569. 29C. Bac. Abr. Statutes, L. 
 
 (?) 1 Bl. Com. Dig. 85, 86. Doug. {v) Bac. Abr. Statutes, L. 5. Ld 
 
 97. n. 12. Bac. Abr. tit. Statute, L. llsiym. 381. Cowp. 474. 
 
 2Wils. 376. (vf) Ai:te, Sir Cowp. 474. 
 
 (r)1T. R. 145. Com. Dig. Plead- (.r) Doug. 1.50. Ld. Hnym. 17.' 
 
 er,C. 76. Lane, 71. 1542. Carth, 83. 269. Co. Lit. 89 
 
 (5) Ld. Raym. 382. Doug. 97. 6 n. 7.
 
 219 OF PLEADING 
 
 /. Tlw facts m a return to a mundamns to restore a burgess of a coirpora* 
 
 7lCCtiSSH I'H to • 
 
 fit slated. t'°^» i^ ^^ Stated that the party was removed by the corporate 
 
 body at large, il is unnecessary to aver, that the power ol remo- 
 val is vested in them, because the courts will take notice ex officio^ 
 that by intendment of law> such power exists in the body at iar(:i;e, 
 unless it be made appear, that it was vested by charter, or other- 
 wise, in a select part of the coiporation ;(z/) and it has been 
 well observed, that in an action against a common carrier or 
 innkeeper for the loss of goods, Sec. which is a liabiiiiy founded 
 on the common law or custom of the realm, it is not only un- 
 necessary, but improper, to recite such custom, because it tends 
 to confound the distinction between special customs, which 
 ought to be pleaded, and the general customs of the realm, of 
 which the courts are bound to take notice, without pleading.(z) 
 So it is not only unnecessary, but improper, in a declaration on 
 * 220 a bill of *exchange, to set out the custom of merchants, be- 
 cause it is part of the law of the land.(«) 
 
 So the courts will ex officio notice the £cclcsiastica/,{b) Ci' 
 vil, aful Alarim^ Lavjn,(^c) without any statement of them in 
 pleading ; and if there be any misstatement of such laws, or of 
 facts affected by them, the pleading will be held insufficient :(rf) 
 thus where an administrator durante winore aiate^ in his decla- 
 ration averred that ihe 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 eighteen, though not twenty-one, as alleged in the 
 declaration. (e) 
 
 Such of the Customs of Gavelkind and Borough English^ as 
 are of the essence of the tenure, as the course of descent, need 
 not be stated specially in pleading, nor should be prescribed 
 
 (i') Doug-. 150. 1 B. & P. too, -[0?,^. Carth. 44G. 5 Mod. 3^5. 
 
 Com. Dig. Pleader, C. 7S. Comb. 475. 12 Mod. 194. 
 
 (:) Co. Lit. 89. a. 11. 7. . (c) 2 H. Bl. 606. n. a. 
 
 ((/) Ld. Kajm. 175. 1542. Carth. («') .Supra, note b. 
 
 S3. le) Id. ibid. 5 Co. 29. a. Ld. 
 
 {b) Bro. Quare Impcdit, pi. 12. Raym. 338. but note, tliis was befort 
 
 March. 205. 1 Roll. Abr. 526. Cro. tiic statute 38 Geo. III. c. S7. 
 Eliz. 602. 5 Co. 29. Ld. Ra) m. 338,
 
 IN GENERAL. 220 
 
 for, because the common law takes notice of them, and it is suf- J- ^''* /"c« 
 
 ' _ neccasury to 
 
 ficient to state in the pleading, that the land is of the custom of be ntuted. 
 gavelkind, and subject thereto ; but in regard toother customs, 
 though incident to these tenures, they must be stated.(/) 
 *And the courts will not ex officio take notice of any fiarticu- 2-1 
 
 lar local cuslo?}is,(g-) nor of the customs of London, except 
 where they have been certified by the recorder, to either of the 
 courts of record, (A) without which there must be either a plea 
 or an affidavit of the custom. (0 Thus where a defendant plead- 
 ed, that his debt was attached in London by one of the plain- 
 tiff' 's creditors, it was decided, that the court could not take no- 
 tice of the custom of foreign attachment, because it was not 
 pleaded, and consequently, that the plea was bad ; j) but on a 
 writ of error from the inferior court, the custom will be no- 
 ticed. (A:) Nor will the courts ex officio take notice o{ foreign 
 laws, or of the laws of our Plantations, and consequently they 
 must in general be stated in pleading. (/) 
 
 The courts take notice of the days of the nveek, Ecc. on which 
 particular days fall, and the almanac is part of the law of the 
 land, having been established by different statutes,(m) and if 
 there be a misstatement it will be fatal ;(?/) therefore, where a 
 writ of inquiry was slated in pleading to have been executed on 
 the l5th oi June, which was a ^zmc/rn/, the proceeding was held 
 *def3Ctive ;(o) and where the defendant justified an arrest un- ^ 222 
 
 der process, from an inferior court, which he stated to be held 
 every Friday, and the process appeared by the pleadings to 
 have been dated the 7th oi ylugust, which was Saturday, upon 
 demurrer it was held bad.(//) So the court will take notice, 
 what number of days there are in each month,(</) and in leap 
 
 (/) Co. Lit. 175. Ij. n. 4. Ld. tjc) 1) nig. 380. Salk. 2G9. 
 
 Raym. 1025. 1 Bl. Com. 7C. Cro. (/) 2 East, 273, 274. Cowp. 174- 
 
 Car. 561. 1 Lev. 79. 2 Bl. Com. 82, I6l. 6 Mod. 194, 195. Salk. 651. 
 
 ^> 84. Burr. 1077. Rep. temp. Haidw. 85. 
 
 {g) 1 Roll. R('p. lOG. 4 y. R. 192. 
 
 (A) Stra. 187. 11S7. Doug. 378. 380. (m) 2 k 3 Edw. YI. c. 1. 5 & 6 
 
 aC3. Aiuir. 304. 1 Bl. Com. 76. Edw. VI. c. 1. 1 Eiiz. c. 2. 
 
 0) Aadr. 504. Sti-a. 1187- 3 Atk. (?t) 2 Ld. Raym. 99i. 6 Mod. 41 
 
 Vi. Doug. SC3. 81. Salk. 181.626. 
 
 (./) 1 Roll. Rep. 106. Co. Ent. 139. (o) Fortes. 373. Stra. 387. 
 
 b. 1 Saund. 142. a. 1 Snund. 6G. n. {!>) Rep. temp. Hardw. 112. 1 
 
 1. Sed qtiKre, the custom having; T. R. 110. 
 
 Neon certified. Doug. 378, {q) i Roll, Ah.r, 524 C. nl. 4. *
 
 222 OF PLEADING 
 
 J. T/ie facts year, and of the movable feasts,(r) and of the Teiins, as to 
 
 nscessnrt/ to 
 
 ht stated. their commencement and conclusion, whether movable or 
 not,(6) and if process be stated to have been issued on a day in 
 vacation, and that the court was then sitting, the pleading will 
 be bad on demurrer.(i) 
 
 The dividon of England into counties, will also be noticed 
 by the court ex officio., but not that of particular liberties, which 
 must be stated in p)eadinp;,(zi) and though the courts will no- 
 tice provinces and dioceses, they will not any particular place 
 within each province or diocese, excepting that where the 
 court sits.(t') So the courts will take judicial notice of what 
 towns are incorporated, and oi" the extent of ports, and of the 
 river Thames., &c.(w) 
 
 The courts will ex officio take notice of the meaning of En- 
 * 223 glish words and terms of art, according *to their ordinary ac- 
 ceptation, however vulgar and peculiar to a particular county or 
 place, and consequently the meaning of such terms need not 
 in general be averred, (r) unless the intendment of law be other- 
 wise -.{y) thus in an action on the warranty of a carroom, it was 
 held not necessary to aver what a carroom was, because it was 
 a phrase then well known in LondotiXz) So in an action for 
 words spoken in England^ which are slanderous according to the 
 phrase of the country in which they were uttered, though the 
 court may not in fact know Avhat they signify, it is not neces- 
 sary to aver their signification, for the judges themselves will 
 take notice of Englinh words in any county. (a) The courts 
 will also take notice of the names and quantity of legal weights 
 and measures,(6) and of time according to ordinary expres- 
 
 ()•) 6 Mod. 81. Salk. 626. Ld. («) 2 Inst. .-Jj?. March. 124. 
 
 IJaym. 994. The caleiKhir hy wliich (r) Ld. Raym. 854. 1379. Stra. 
 
 the courts go is tliat annexed to the 609. 3 T. R. 387. 
 
 Common Pl-ayei- 15ouk, 6 Mod. 81. (w) Sti-a. 409. 1 H. Bl. 356, 357. 
 
 (s) 1 Term Rep. 116. Ld. Raym. (.r) 1 Roll. Abr. 86. 525. 
 
 329. Ci-o. Jac. 548. 2 Lev. 176. {ij) 4 T. R. 314. 
 
 Bull. N. P. 137. 12 Mod. 647. Sed (r) 1 Roll. Abr. 525. 6 Viii. Abr. 
 
 vid. Latch. 11. US. 1 Sid. 307. 1 492. 
 
 Roll. Abr. 524. Dyer, 181. (a) 1 Roll. Abr. 86. I Vin. Abr 
 
 (0 5 Burr. 25S6. 3 T. R. 184. 1 531. 1 Saund. 242. n. 1. 
 
 Saund. 300. b. n. 7. {b) 1 Roll. Abr. 525
 
 IN GENERAL. 223 
 
 sions.(c) But if the intendment of law be different to the state- ^- ^^-^ /"^'* 
 
 . necessary to 
 
 nicnt in tlie pleadint;, the meaning of the term must be sta- be fluted. 
 
 led, and therefore it was decided, that proof that the defend- 
 ant agreed to sell so many bushels accordins^ to a particular 
 measure, will not support an allegation in a declaration, to sell 
 so many bushels generally, because bushels, without any other 
 explanation, signify the legal statute measure of a Jl'inchester 
 bushel. (t/) 
 
 Every court is bound to take judicial notice *of its own * 224 
 course of firoccedhigs,(e) and of those of the other superioi^ 
 courts ;(y"^ and therefore in these cases, it is not necessary in 
 pleading, to allege any usage or prescription, in support of 
 such proceeding. (.§•) So where upon a motion in arrest of 
 judgment, because the declaration had not shewn out of what 
 court a writ of latitat was issued, the court said, that there be- 
 ing no wiit properly called a latitat^ but what issues out of the 
 King's Bench, the declaration was sufficient. (A) 
 
 The superior courts will also noiiCG \\\e firivileges they coTifer 
 (jh their officer s^'^i) and therefore, though in a plea of privilege, 
 it is usual to state the custom of the court, privileging attornies, 
 Sec. such statement appears unnecessary. In Ogle v. JVorcliffe^ 
 Holt, Ch. J. said, that the privilege 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 -yij) and 
 where the customary privilege was mispleaded, it being urged 
 for the defendant, that the courts would take notice of the privi- 
 lege 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.(^') '^''*' 
 
 So the courts at Westminster will notice Courts of General 
 Jurisdiction, and the course of proceedings therein, as that 
 
 (f) 1 Roll. Abr. 525. Ld. Ruym. (^) 2 Co. Rcj). 16. a. Year Book, 
 
 '9-i. 2 Rich. III. page 9. pi. 21. 
 
 (</) 4T. R. 311. (//) Ld. Rnym. .5'jr. 
 
 ■ (*-) 1 T. R. 118. 2 Lev. 176. Plowd. \i) Ld. R.iym. 809. 89S. 
 
 145. 103. 1 Roll. Rep. 106. Burr. \j) Ld. Raym. 869. 
 
 811. (k) Ld. Raym. 899. but see 9 East. 
 
 (./") 2 Co. Rep. 18. Cro. .Tac. 67, 68. 4-2i. 
 1 Roll. Rep. 106. Sir W. Jones, 417. 
 Cro. Car. 527.
 
 225 OF PLEADING 
 
 1. The facta there is a Court of Exchequer in Wales^ and the course of pro- 
 
 %'^^smed. *" ceedings there, and they will also 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 arc the 
 judges of another court at Westminster, though perhaps they 
 ought to take notice of the judges of their own court ;(w) and 
 therefore where the authority of a judge may be material to 
 the action or defence, it should be expressly stated in plead- 
 ingjOO and in pleading a fine, the names of the judges and 
 their authority should be stated. (o) 
 
 The superior couits will not ex officio take notice of the cus- 
 toms, laws, or proceedings of inferior courts of limited juris- 
 diction,{/}) unless when reviewing their judgments upon a writ 
 of error, when for the purposes of justice they must necessa- 
 rily notice them. (7) In a return to a writ of habeas cor/ius, in- 
 ferior courts must in their return set forth the law or custom 
 of the place by which they justify their commitment, oiher- 
 
 ^' 226 wise the court is *not bound to take notice of it, but on a writ 
 of error, it is otherwiseC?-) 
 
 2dly. ■\Vliere ' Where the law presumes a fact, it need not be stated in 
 
 the law pre- ... , . . . , p , , 
 
 sumesafact.it pleading, and as it is an intendment oi law, that a person is 
 
 stated "°^ innocent of fraud, or any other imputation affecting his repu- 
 tation, the party insisting upon the contrary, must state it in 
 pleading. (a) Thus in an action for words, as for saying a man 
 is a thief, the plaintiff has no occasion to aver that he is not a 
 thief, and in an action on the case for maliciously suing out a 
 commission of bankrupt, it is not necessary to state in the de- 
 claration, that the plaintiff was not indebted to the defendant, 
 or that he never committed an act of bankruptcy ;(0 and it is 
 a rule applicable in some cases to pleading, that where the 
 law presumes the affirmative of any fact, the negative of such 
 fact must be proved by the party averring it in pleading. So 
 
 (0 1 Ld. Raym. 154. 1 Saund. 73. (7) Cro. Car. 179. 1 Roll. Rep. 
 
 C Mod. 74. Cro. Eliz. 502, 503. Cro. 105. 
 
 Car. 179. I Sid. 331. (r) Salk. 2G9. 
 
 (m) Andr. 74. Slra. 122G. (s) Co. Lit. 78. b. Heath's M.v:. 
 
 00 l<l-'t>id. ims, 207 to 212. 
 
 (&) 2 Sannd. 175. n. 2. (0 2 Wils. 147. 
 
 (/)) 1 Roll. Rep. 105. Ld. Raym. 
 1334. Cro. Eliz. 502. Salk. 269.
 
 IN GENERAL. 22G 
 
 \vhcre any act is vequircd to be done by a person, the omission i. The fach- 
 of which would make him guilty of a criminal neglect of duty, '^^7/«/"vf 
 the law presumes the affirmative, and throws the burthen of 
 proving tlic negative on the party who insists on it.(z^) And as 
 observed by Lord Coke^ necessary circumstances implied by 
 law need not be expressed, as in the pica of a feoffment of a 
 manoi-, livery and attornment are implied ; and in pleading the 
 assignment of land for dower, it is not necessary to say, that 
 it was by metes and bounds, for it shall be intended a lawful 
 assignment; so in pleading *a sui'render, the re-entry of the -■' 227 
 
 lessor need not be stated, for it shall be intended ; so where it 
 is pleaded, that the sheriff made his "warrant, it is unneces- 
 sary 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 ^, he need not say either that ^^1 is dead, or that he had 
 no son;(Ty) and in pleading an acceptance by a corporation of 
 an assignee of the lessee as tenant, it is not necessary to shew, 
 that the acceptance was by deed, for an acceptance being plead- 
 ed, every thing that would render it a good acceptance is im- 
 plied. (Ty-^ But 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 ;(:f) and it is said, that when the de- 
 fendant pleads, that another person promised to be answerable 
 to the plaintiff for the debt, in lieu of the defendant, it must 
 be shewn to have been in writing, pursuant to the statute against 
 frauds, so that it may appear to be such a contract as the plain- 
 tiff could enforce .(i/) So in justifying under a writ, warrant, 
 &c. it is not sufficient to allege generally that the defendant 
 committed the act complained of by virtue of a certain writ, 
 or other warrant directed to him, but he must set it forth spe- 
 cially. (z) In these cases, the law does not intend *the validity * 228 
 of the will, the promise, or the process. 
 
 ('0 3 East, 19'2. (,r) 1 Saund. 275. a. n. 2. Post, 
 
 (,t) 2 Saund. 305. u. 1,5. vol. 2. 2,51. n. i. 
 
 (tw) 2 Saund. ?>(Kk {ij) Id. il.id. 
 
 (s) 1 Saund. 298. n. I 
 VoT.. I. [211
 
 228 OF PLEADING 
 
 /. The fact^ It IS also a general rule of pleadinj^, that matter which 
 
 'be stated " ^^^^^^^^ conie more properly from the other side, nted not be 
 
 :^dl.v. A p:irty Stated, («) unless in some instances of pleas nol favoured by the 
 
 lued not Male courts, as a plea of alien enemy.(A) I'hus in an action of debt, 
 
 is more [.ro- on a t>ond conditioned that B should remit all monies received 
 
 nerlv If be . . ■ • ■ 
 
 stated by the 'P^ ^) to C, or p^y the same to him or his order, as should be 
 
 other sule. directed, it is sufficient to state a non-payment to C, and it is 
 nol necessary in a replication to a plea of general performance, to 
 allege any order given by C, for if any had been given, it should 
 be shewn by the defendant. (c) So in astMJtipait on a contract to 
 transfer slock to the plaintift", or his order on request, the plain- 
 tiff stated a request, and averred, that the defendant had not 
 transferred ; and on an objection being taken that the plaintiff 
 should have averred that the defendant had not paid to the plain* 
 tiff's order, it was overruled, because the averment of pay- 
 ment to such order, ought to come from the other side ;(f/) 
 and if the plaintiff allege a condition subsequent to his estate, 
 he need not aver performance, but the breach must be shewn 
 by the defendant ; and matter in ch-fiamnce of the action need 
 not be staled ; and wherever there is a circumstance, the omis- 
 sion of which is to defeat the plaintiff's right of action firima 
 
 *■ 229 facie well founded, whether *called by the name of a proviso, 
 or a condition subsequent, it must in its natin-e be a matter of 
 defence, and ought to be shewn in pleading by the opposite 
 party. (r) In pleading upon statutes, where there is an excep- 
 tion in the enacting clause, the plaintiff nuist shew that the 
 defendant is not within the exception, but if there be an excep- 
 tion in a subsequent clause, that is matter of defence, and the 
 other party must shew it to exempt himself from the penalty.(/') 
 In debt on an award, the plaintiff need not set forth more of it 
 than what makes for him, and if there be any thing by way of con- 
 dition precedent, to the payment of the money, it is said, that 
 the defendant must set it out in pleading ;(£'•) but in debt upon 
 
 (o) Com. Di.^. Pleader, C. 81. 2 (e) Per Ashhurst, J. I T. R. 645, 
 
 Saund. G2. b. 8 T. R. \<b7. 2 Wils. 646. Com. Dig. Pleader, C. 81. 
 
 147. 5T. R.61.5. (/) 1 T. R. 144, 145. Bac. Abr. 
 
 (J)) 8 T. R. I6r. Statute, L. 6 T. R. 559. 1 East, 
 
 (c) 1 T. R. 485. C46, 64" 
 
 (r/) Ld. Raym. (yJo. 114. 247. 989. (5-) 2 Sauud. 62. b.
 
 IN GENERAL. 229 
 
 a bond to perform an award, it is necessary to set fuilh the / The facta 
 whole award in the replication.(/0 E!S *" 
 
 Though the general rule is that facts only are to be stated, 4t!iiy. State- 
 yet there are some instances in whj';h the statement in the gj-ilons* ^^^^^ 
 pleading is correct though it does not accord wiih the real facts, 
 the law allowing a fiction ; as in the action of ejectment, in 
 which the statement of the demise to the nominil plaintiff is 
 fictitious. (/) So in trover or detinue, the usual allegation that 
 the defendant found the goods, rarely accoi-ds with the fact ;(_/') 
 and Avhere the number, qu-;nlity, species, or value of a thing, 
 need not be proved precisely as Lid it is usual *to state a * 230 
 
 greater number, than really was the Cuse, in order to admit of 
 greater latitude in evidence ; but except in tliese, and a few 
 other instances, where it may be consistent with the justice of 
 the case, the pleading matter known to the party to be untrue, 
 is in general censured. (X:) 
 
 At common law it was a general rule, equally r.ffecling sthly. Of Du« 
 declarations, pleas, replications, 8cc. that the pleading must ^"^"''' 
 not be double^ that is, that no single count or plea, should 
 state two or more facts, either of which would of itself, inde- 
 pendently of the other, constitute a sufficient ground of action 
 or defence ; a rule founded on the principle, that it would be 
 unnecessary and vexatious to put the opposite party to litigate 
 and prove two points, when one would be sufficient to establish 
 the matter in issue//) 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 dilferent covenants might be stated.' w) So in a 
 plea of outlawry, the defendant cannot state several outlawries, 
 because one would be sufficient to defeat the action ;{n) and on 
 the same ground there cjnnot be a demurrer and a plea to the 
 
 (A) Id. ibi.l. Pleas, K. 2, 3. Heath's Maxims, 
 
 (0 2 Burr. 667, 668. 134. 
 
 (.;■) Ante, 148. 1 New Rep. 140. (m) Com. Dig. Pleader, C. .^3. 2 
 
 {k) Rac. Abr. Pleader, G. 4. I Vent. 19S. 1 Roll, 112. 1 Saund, 
 
 East, 372. 158.11. 1. llearli's Maxims, 135 
 
 (/) Co. Lit. 304. a. Com. Dig. (n) Carth 0. 
 Pleader, C. 33. E. 2. Bac. Abr
 
 231* OF PLEADING 
 
 /. The facfs same pail of a declaration or plea, *biC.{o) By different sta-* 
 
 /.'^"^'T'v' ^° tules the common law has been altered in recard to dcclurutions 
 
 be slated. *^ 
 
 on bonds and for penalties,(/?) and to several distinct pleas and 
 avowries, and pleas in bar thereto •,{q') but the common law 
 rule still affects each plea taken separately. The rules as to 
 duplicity will be more fully stated hereafter, when we con- 
 sider the particular qualities of each part of pleadint;. 
 
 Oihly. Objcc- The statement of immaterial or irrelevant matter or allega- 
 tions to unne- ... , . , . 
 cissaiv statu- tions, IS not only censured as creating unnecessary expense, (»") 
 
 mciits. j^^j^ ^j^Q frequently affords an advantage to the opposite p^rty, 
 
 either as a ground of variance, or as rendering it incumbent on 
 the parly pleading to adduce more evidence than would other- 
 wise have been necessary ; and therefore, it is 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 necessary. (s) Thus where a party takes upon himself to 
 state in any pleading a substantive averment, or to allege a pre- 
 cise estate, which he is not bound to do, if they are material and 
 bear on the question, he gives tiie other side an advantage of 
 traversing them ; as if in an avowry damage feasant^ in which 
 it is sufficient to state that the close WiiS the party 'sy)t'f/jo/rf, if 
 he unnecessarily state a seisin in fee, though a less estate would 
 
 * 232 suffice, and the other side traverse the allegation, it must *be 
 proved as stated. (i') So if in an action on the case against the 
 sheriff, for levying under an execution against the tenant, with- 
 out 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, kc. and misdescribe them, the va- 
 riance will be fatal, and contracts in particular must be accu- 
 rately stated. (m) The instances of variances will be more fully- 
 stated in the next chapter. 
 
 ■;iiil>. SuiKir- If> however, the matter unnecessarily stated, be wholly fo- 
 
 tii!;ty and re- j.^joa and impertinent to the cause, so that no allegation what- 
 
 pugnancy. i 
 
 (o) Bac. Abr. K. 1.1 (.^) 2 Saimd. 200, 207. n. 22. Doug. 
 
 (/)) 8&9Wm. III. c. 11. s. S. I COS. 1 Saunil. 233. n. 2. 2 Saund. 
 
 Saund. 58. n. 1. 36t). 
 
 (<7) 4 Ann. c. IG. (<) Id ibid. H. Bl. 54. 
 
 ()•) CoNvp. CG5. 727. Doug, 6G8, [ti) S East, 9. Doug. 665 to 6()? 
 
 869. See post, as to vancmces,
 
 IN GENERAL. 232 
 
 evev on the subject was necessary, it will be rejected as sur- J- ^'''*? /«c/-9 
 
 , , , .,,... • 1 • necesscm/ io 
 
 plusage, and it need not be proved, nor will it vitiate, it being a (,e stated 
 maxim, that utile per inutile non -vitiatur :(y') except where 
 by the unnecessary allegation the plahitiff shews that he has 
 no cause of action. (w) Thus in trespass for driving cattle, 
 where the defendant justified, that he was lawfully 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 colour to the defend- 
 ant, it was decided that this did not render the replication insuf- 
 ficient because the introduction of unnecessary words of form, 
 will not vitiate the rest of a replication which is good.(x) As 
 observed by Lord Manajield^ " the *distinction is, between that ^ 233 
 " which may be rejected as surplusage, which might be 
 " struck out on motion, and what cannot ; when the declara- 
 " tion contains impertinent matter, foreign to the cause, and 
 " which the master on a reference to him, would strike out, 
 " that will be rejected by the court, and need not be proved ; 
 " but if the very ground of the action be misstated, that will be 
 '< fatal, for then the case declared on, is different from that 
 " which is proved, and the plaintiff must recover secundum al- 
 " kgata et probata ; the distinction is between immaterial and 
 " impertinent averments, the former must be proved, be- 
 " cause relative to the point in question. "(i/) 
 
 So though the superfluous allegation be repugnant to what 
 was before alleged, it is void and will be rejected, and what- 
 ever is redundant, and which need not have been put into 
 the sentence, and contradicting what was before alleged, will 
 not in general vitiate the pleading ;(r) for, per Holt, Ch. J. 
 where matter is nonsense, by being contradictory, and repug- 
 nant to something precedent, there the precedent matter 
 which is sense, shall not be defeated by the repugnancy 
 which follows, but that which is contradictory shall be re 
 
 {v) 4 East, 400. Gilb. C. P. 131, (x) Pcv Lavvee, J. 1 East, 219. 
 
 152. Com. Dig. Pleader, C. 28. Bac. {ij) Per Ld. MaiisSeld, Doug. 66" 
 
 Abr. Pleas, 1. 4. Co. Lit. 303. b. 2 2 Bl. Rep. 842. 4 East, 400. 
 
 Saund. 30C. n. 14. 5 East, 444. (r) Gilb P. 131, 3 32. Co. Lit 
 
 Heath's Maxims, 4. 303 b. 
 
 (-.y) Com. Dig. Pleader. C 20 
 Bac. Abr. Pica?, 1 4
 
 ^33 OF PLEADING 
 
 / The facts jected ; as in ejectment, where the declaration is of a demise 
 
 \iecessuyii to 
 
 be slated. the second o^ January, and that the defendant /^o.s-^^a scilicet on 
 
 the Jirst of January, ejected him, here the scilicft may be re- 
 * 234 jected as being expressly contrary to the fwstea and *thc pre- 
 ■ cedent matter ;(a) but a material alleviation, sensible and con- 
 sistent in the place where it occurs, and not repui^nani to any 
 antecedent matter, cannot be rejected, merely on account of there 
 occurring afterwards in the same pleading another allegation 
 inconsistent with the former, and wliich latter allegation cannot 
 itself be rejected ;(d) and if by the rejection of ihe repugnant 
 matter, the pleading would be kit without an allegation of lime, 
 or other material matter, though in some instances the plead- 
 ing might be aided by verdict, yet it would be defective on spe- 
 cial dcmurrcr.(c) And when, by the introduction of super- 
 .fluous matter, it appears that the defendant had no cause of 
 action, it is fatal, as if in an action on the case for a disturbiince,in 
 which possession is a sufficient title for the plaintiff, if he shew 
 a title, and it appears insufficient, the declaration is bad.(rf) So 
 if in a plea of piivilcgc as an attorney of the Common Pleas, 
 the customary privilege be improperly stated, though ii might 
 have been omitted, being matter of law judicially taken notice 
 of, the court will not reject the statement of the custom as sur- 
 plusage, but will give judgment against the plea.(e) 
 
 ,fc. o"- J^ T'///: MODE OF ST.iTLVG THE FACTS. 
 
 II. Mode of Having considered nvhat facts are to be stated in pleading, 
 ttatinsr facts. , ... , ,- , ti ■■ 
 
 " we have novv to consider the mode cj &uc/i statement. Ihelacts 
 
 which constitute the cause of action, or ground of defence, 
 should be stated logically in their natural order ; as on the part 
 of the plaintifl", his right, the injury, and the consequent da- 
 mage, and these with certainty, precision, and brevity. (/") With 
 regard to the language to be adopted, as observed by Lord 
 
 (a) 5 East, 255. 1 Salk. 3-24, 325. (e) Ld. Raym. S'jS. Ante, 224. 
 (6) 5 East, 254. (/" ) Doug. d6G, 667. Sir W. Jones, 
 
 is) Gilb. C. P. 132, 133. vol. 4. p. 34. 4to edit. 
 
 \d) 1 Salk. 363. 365. Com. Dig. 
 Pleader, C. 29.
 
 IN GENERAL. 235 
 
 Ch J De Grey, there are cases, where a direct and positive It '^^orle of 
 
 . St CI tin J facts. 
 
 averment is necessary to be made in specific terms, as where 
 the law has affixed and appropriated technical terms to de- 
 scribe a crime, as in murder, burglary, and others, so in tres- 
 pass, the words vi et armis, and contra fiacem are necessary : 
 but except in particular cases, where pi'ecise technical expres- 
 sions are required to be used, there is no rule of law that other 
 words should be employed, than such as are in ordinary useA^) 
 Thus, though in a declaration for slander, it is usual to st«ie that 
 the words were " maliciously" spoken, the word " falsely" has 
 been held to be sufficiently expressive of a malicious intent.(/;) 
 However, where there has been a long established form of 
 pleading, applicable to the facts of the particular case, it should 
 in general, for the sake of certainty and uniformity be adopted, 
 and *the courts censure any unnecessary deviation from it ;(?) ^ 236 
 and as observed by Lord Coke^ it is safer to follow good prece- 
 dents, for nihil dmul inventum est, et iierfectum.{k~) 
 
 The principal rule, as to the mode of stating the facts is, that 
 Xhey must be set forth with certainty ;(/) by which term is sig- 
 nified, a clear and distinct statement of the facts, which consti- 
 tute the cause of action 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.(/rt) 
 
 In Dovaston v. Fayne,{ii) Mr, Justice Buller observed, that 
 certainty or precision in pleading, has been stated by Lord Coke 
 to be of three sorts, viz. 1 st. Certainty to a common intent ; 2dly. 
 To a certain intent in general ; 3diy. To a certain intent in every 
 particular ; and that though these distinctions had been treated 
 
 (^) Cowp. 68.3. 5 Enst, 259,260. have no precise i<lea of the significa- 
 
 2 East, 33. '2 Bl. Rep. 843. lion of the term " certainty," which 
 
 (/i) 1 Saund. ivl. a. n. 2. is as indefinite in itself as any word 
 
 {i) Co. Lit. 30.3. a. b. 1 Hale, C. that can be used. 
 
 L. 301,302. 6 East, 351, 552, 353. (m) <"-o\v-p. 682. Com. Dig. Plead- 
 
 And see ante, 85, 86. er, C. 17. Co. Lit. 303. 2 B. &£ P 
 
 (k) Co. Lit. 230. «. 207. 
 
 (0 Cowp. 682. Hob. 295. It was (/() 2 H. Bl. 550. SEast, 467. 257 
 
 observed by Ld. C. J. De Grey, iu 259. Doug. 158. 
 Rex. V. Home, Cowp. 682. that we
 
 236 ^F PLEADING 
 
 JI. Mode of as a jargon of words -without meaning, they had long been made < 
 
 stating Jacts. ^^^ ought not altogether to be departed from. 
 
 By certainty to a common intent., is to be understood, that 
 when words are used, which will bear a natural sense, and also 
 an artificial one, or one to be made out by argument or infer- 
 ence, the natural sense shall prevail ; it is simply a rule of con- 
 
 * 237 struction, *and not of addition ; common intent cannot add to a 
 sentence words which are omitted. This description of cer- 
 tainty, is sufficient in a plea in bar.(^) It is of the lowest de- 
 gree, and yet we shall find, that in some instances, a statement 
 which would suffice in a declaration, will not in a plea ; thus in 
 a declaration on a contract, to pay the debt of a third person, 
 it is not necessary to shew that it was in writing, but it is other- 
 wise in a plea ;(/) and in a plea, the statement of a deed by 
 way of recital " testatum cxistit" instead of a direct allega- 
 tion is insufficient, though it is otherwise in a declaration. (m) 
 
 Certainly to a certain ititent in general is a greater degree of 
 certainty than the last, and means what upon a fair and rea- 
 sonable construction may be called certain, without recurring 
 to possible facts which do not appear, and is what is required in 
 declarations, replications, and indictments in the charge or ac- 
 cusation, and in returns to writs of mandamus ;(n) the charge 
 we have seen, must contain such a description of the crime, 
 Sec. that without intending any thing but what appears, the de- 
 fendant may know 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.(o) 
 
 jjv Qnp The third degree of certainty, is that which *precludes all 
 
 argument, inference, or presumption against the party plead- 
 ing, Co) and as it has been well expressed, is that technical ac- 
 curacy, which is not liable to the most subtle and scrupulous 
 objection, so that it is not merely a rule of consti'uction, but of 
 addition ; for when this certainty is necessary, the party must 
 
 (A) 2 H. Bl. 530. Cowp. 682.— (m) 1 Saund. 274. n. 1. 
 
 Doug. 158. 1 Saund. 49. n. 1. 5 Co. («) I Doug. 159. 1 Saund. 49. n. t, 
 
 121. Co. Lit. ■ 303. a. Com. Dig. Heath's ]Ma.\ims, 3. 
 
 rieader, C. 17. 6 Mod. 117. Heath's (o) Cowp. 682. 
 
 Maxims, 3. (») Co. Lit. 552. b. Doug. 15? 
 
 (/) 1 SuuivJ. 276. a. n. 2.
 
 IN GENERAL. 238 
 
 not only state the facts of his case, in the most precise way, IT. Mode tf 
 but add to them such facts, as shew that they are not to be 
 controverted, and as it were, anticipate the case of his adver- 
 sary.(/0 It has been said, that this description of certainty 
 has been rejected in all cases, as partaking of too much sub- 
 tlety ;(y) however, £ idler, J. expressed a difierent opinion, 
 and it appears, that it obtains in the case of estoppels, ('") and 
 in pleas, which are not favoured 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 Eni^land without let- 
 ters of safe conduct from our King.(s) 
 
 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. 
 
 Less certainty is requisite, when the law presumes, that the 
 knowledge of the facts is in the opposite party, because the 
 principal object of pleading is, to state facts of which the 
 other *party is not supposed to be cognisant ; and, therefore, * 239 
 where in 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. Sec. on general demurrer it was objected that it did 
 not shew by what right or obligation the defendant was bound 
 to repair, and that he was not bound of common right merely 
 as an occupier, but the court held that the declaration was suf- 
 ficient, and Bul/er, J. said, the distinction is between cases, 
 where the plaintiff lays a charge upon the right of the defend- 
 ant, and where the defendant himself prescribes in right of 
 his own estate ; in the former case the plaintiff is presumed to 
 be ignorant of the defendant'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 foi"th such es- 
 tate. (0 bo less certainty is required, and general words are' 
 
 ip) Lawes on Plejidiiig, 54, 55. (s) 8 T. R. 167. 
 
 (9) Cowp. 68'2. (t) 3 T. R.rer. Com. Dig. Plead- 
 
 (r) 2 H. Bl. 530. Doug. 1.59. Com- ^r, C. 26. 42. C». Lit. 304. 
 Dig. Estoppel, E. 4 Co Lit. 352. b. 
 
 Vol, I. r 2? 1
 
 239 OF PLEADING 
 
 U. Mndf of sufficient, where it is to be presumed, that the party pleading 
 
 stuiin^ jucu. -y ^^^ privy to the minute circunistances ; ^hus, where a per- 
 son's house is burnt, general words are sufficient in the de- 
 scription of the loss, because he is not presumed to be able to 
 set forth with certainty the goods destroyed ;(ii) but in a de- 
 claration on the statute of liue and cry, the plainiifl" must state 
 the particulars of his goods taken. (t') 
 
 *' 240 *^^ ^^ '-^^^^ ^ ^'^^^ "^ pleading, that in general, where a sub- 
 
 ject comprehends multiplicity of matter, there, in order lo 
 avoid prolixity, the law allows general pleading ;(w) but as 
 there are many instances in which this rule does not apply, es- 
 pecially in justifications of slander, and in pleas of perform- 
 ance, we will hereafter consider the rule, in its application to 
 the particular parts of pleading. 
 
 When the facts are not really stated with sufficient certainty, 
 the introduction of the word " certain," is of no avail ; thus a 
 declaration in debt for a sum of money forfeited " by virtue of 
 '' a certain by-law," or for money due " on a certain bond," 
 without stating it, is insufficient ;(a:) so a special declaration in 
 assumpsit for wages in consideration that the plaintiff would go 
 " a certain voyage," without staling it ;(i/) so where the de- 
 claration 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 to 
 be aided by verdict, it would have been bad on demurrer ;(::) 
 and a justification in trespass, " by virtue of a certain writ," 
 Sec. but not setting it forth, is insufficient. (a) So the w^ords 
 " duly," " lawfully," " sufficient," Stc. without shewing the 
 
 * 24J *matter of fact, are seldom of avail in pleading i(Z>) though in 
 
 some cases the statement that the defendant " unlawfully" or 
 " unjustly," SiC. did the wrong complained of, without shew- 
 
 (m) I Kcb. 8'25. Plowd. 85. 1 H. Pleader, C. 4-2. E. 26. 2. V. 13. Co 
 
 Bl. '284. Sed vide 2 Sauiid. S7'J. Lit. 30.5. b. 3ui. 
 
 (■t) 2Suund. 379. (.r) I B. k 1'. 100. 102. 
 
 Iw) 2 Saund. 117. n. 1. 411. n. 4. {(/) 2 B. h P. 120. 
 
 8 T. R. 462. 1 Sauiid. UO, 117. n. 1. (:) 2 B. isi P. 2r)5. 
 
 B:i<:. Abr. Plea-s, I. 3. (Join. Di-. (a) 1 Saund. 2liS. n. 1. Ante, 237. 
 
 (b) 9 Co. 25. a.
 
 IN GENERAL. Mi 
 
 ing the particular acts, may be sufficient to designate that to be U. J\-ln<h^ of 
 
 , . , . , , • 1 • j-n' statiu'J fucU:- 
 
 a crime or injury, which might otheiwise stand inditterent ; 
 as in an action on the case for enticing and procuring a wife to 
 leave her husband. (c) 
 
 III. RULES OF CO.rSTRUCTlOX. 
 
 It is a maxim in pleading that every thing shall be taken IJI. Riilei> of 
 , . , ! ,• .^ ^^ 1 IT construciiun. 
 
 most strongly against the party pleading, (a) or rather, that it 
 
 the meaning of the words be equivocal, they shall be construed 
 
 most strongly against the party pleading them ;(r) for it is to be 
 
 intended, that every person states his case as favourably to himself 
 
 as possible. (/") But in applying this maxim, the other rules must 
 
 be kept in view, and particularly those relating to the facts, of 
 
 which the courts will ex officio take notice, without their being 
 
 stated in pleading •,(g) and the maxim itself must be received 
 
 with some qualification, for the language of the pleading is to 
 
 have a reasonable intendment and construction ;{/i) and where 
 
 a matter is capable *of different meanings, that shall be taken ^ 242 
 
 which will support the declaration, Sec. and not the other, which 
 
 would defeat it.(0 
 
 But the matter must be capable of different meanings ; 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 understanding of mankind, would 
 plainly revolt. But if it be clearly cafiable of different mean- 
 ings, 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 criminal charge must 
 be understood to have used it, if he intended that his charge 
 should be consistent with itself.(y) Every indictment, &c. 
 
 (c) ■Willfs, .'5S5. (A) Com. Dig. Pleader, C. 25.— 
 
 {(!) 1 Saund. '259. n. 8. 2 C. k P. 1 Lev. 190. 
 155. 4Kast, X\3. (/) 1 Salk. 325. 5 East, 25r. 
 
 (e) Per Buller, .1. 2 H. 151. 530. (.;") Per Ld. Elkn borough, Ch. J 
 
 (/) Co. Lit. M).^. b. 5 East, 257. aad id. 463. 
 ( /) Ante, 217 to 229.
 
 242 OF PLEADING 
 
 ///. Rules of ought to contain a complete description of such facts and cir- 
 ionstniction. . , . „ ... 
 
 cumstances as constitute the crime, 8cc. without 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 accep- 
 tation ; and if, where the sense may be ambiguous, it is suffi- 
 ciently marked by the context or other means in what sense 
 they are intended to be used, no objection can be made on the 
 ground of re/atg/iancyj which only exists where a sense is an- 
 ■* 243 nexed to words which is either absolutely inconsistent *there- 
 with, or being apparently so, is not accompanied by any thing 
 to explain or define them. If the sense be clear, nice excep- 
 tions ought not to be regarded. (X:) It is also a rule relating to 
 the mode of stating facts, and the form of the pleading on 
 cither side, that the court are ex officio bound to give such 
 judgment as appears upon the av hole record to be proper, with- 
 out regard to the issues found or confessed, or to any imper- 
 fection in the prayer of judgment on either side ;(/) and on the 
 same ground we shall hereafter see that when there is a de- 
 murrer to a plea, replication, &c. if the prior pleading be de- 
 fective in substance, judgment will be given against the party 
 pleading it. 
 
 IV. njrisioj\i' OF pleadlxgs. 
 
 IV. Division The Jiarts of pleading have been considered as arrangeable 
 of peac ngs. ^j^j^p j^^.q heads ; y?rs?. 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.(??i) 
 
 The regular parts are, 1st. The declaration or count. 2dly. 
 
 The Jilea, which is either to tlie jurisdiction of the court, or 
 
 (/') Per Ld. Ellenborough, Ch. J. (m) Vin. Abr. Pleas and Plead- 
 5 East, 259, 260. 2 East, 33. ing, C. 
 
 (0 4 East, 502. 5 East, 270, 271,
 
 IN GENERAL. 24S 
 
 suspending the action, as in the case of parol demurrer, or in TV. Division 
 
 ^ ...... of pleadings. 
 
 •abatement, or in bar of tlie action,(") or m replevin, an avow- "^ 244 
 ry or cognisance. 3dly. The refilication, and in case of an 
 evasive plea, a new assignment^ or in replevin the filea in bar 
 to the avowry or cognisance. 4thly. The rejoinder^ or in re- 
 plevin, the replication to the plea in bar. 5thly. The surre- 
 joinder^ being in replevin, the rejoinder. 6thly. The rebutter. 
 7thly. The surrebut ter^^^o) and 8thly. Pleas fiuis darrein con- 
 tinuance, where the matter of defence arises fiending the suit. 
 The irregular or collateral parts of pleading, are stated to 
 be,(/2) 1st. Demurrers to any part of the pleadings above men- 
 tioned. 2dly. Deiiiurrers to evidence given at trials. 3dly. 
 Bills of Exceptions. 4thly. Pleas in Scire Facias. And, 5thly. 
 Pleas in Error.^q) The particular nature of each of these 
 parts of pleading, together with the claim of conusance^ de- 
 mand of oyer, and imfiarlances, &c. will be considered in the 
 following chapters. 
 
 (n) Id. ibid. Bac. Abr. Pleas and {p) Vin. Abr. Pleas and Pleading, 
 Pleading, A. C. 
 
 (0) Vin. Abr. Pleas and Pleading, (y) Id. ibid. 
 C. Bac. Abr. Pleas and Pleading, A.
 
 *245 
 
 CHAPTER IV. 
 
 or THE rR-EcirE and declaration-. 
 
 &f the Proi- VV HEN the plaintiff commences his action by s/jfc/«/on5-///(i/ 
 writ, which when the action is for a money demand amounting 
 to 50/. is in general advisable, in order to prevent the delay oc- 
 casioned by a writ of error in the exchequer chamber,(a) it is 
 usual for the pleader, particularly in special actions of assumfj- 
 sit, to frame what is termed the firteci/ie for such writ, which 
 pr<£cijie is delivered to the filazer, who thereupon issues a ca- 
 pias in the first instance, keepini^ the /irted/ie as instructions 
 for the original, which is not in fact issued, unless it become 
 necessary, in consequence of a writ of error, upon a judgment 
 by default.(A) The form of the firaci/ie in assiimfisit, except 
 in its commencement and conclusion, is precisely similar to 
 the declaration, setting forth the time, place, and other cir- 
 cumstances, which constitute the cause of action, with the 
 same particularity ;(c) but in an action of tres/iass, (which 
 however is rarely commenced by original) though the trespasses 
 
 * 246 *"''^ ^^^ °"'- ^^ length with the same number of counts as in a 
 
 declaration, yet tiiv.e, number, quantities, and value, are not 
 particularized in the prxd/ic.^d) 
 
 In the commcnctment of ihc /irxcijtem assumfisit^{c) which is 
 not to be intituled of any court or term, the venue should be 
 
 (d) 1 Sill. 424. Trye, fi. Gilb. (p) Tlie form of a praecipe in as- 
 
 K. B. 319. R. M. 23 G. III. Tiild's ^mnpsit is as follows (to wit) 
 
 iPrac. 3d edit. 94, 95. If A B make you secure, &c. tlien 
 
 (/)) Tiild's Prac. 3d edit. 96, 97. put by gages and safe pledges, C 
 
 (c) Lil. Ent. 90. D, late of mer- 
 
 ((/) Lil. Eut. 539. chant, {or " yeoman" &c. accord- 
 ing to the fact) and E F, late nf
 
 OF TliE PRiECII^E. 24G 
 
 laid in the c&unty in which the action is intended to be tried, Of the P-a- 
 
 ciUe. 
 
 and if the defendant cannot be found ni that county, a testatum 
 ca/nas must be issued into the county where he may be ; for 
 though, laying the venue in the declaration in a county different 
 to that in the original, is not an irregularity of which the de- 
 fendant himself can take advantage, yet his bail will by the 
 practice of the court of K. B. be thereby discharged.(/) The 
 names of all the parties must also be correctly stated, and the 
 statute of additions requires, " that in original writs, the es- 
 '• tate or degree, or mystery of the defendants, and the towns, 
 " hamlets, or places and counties in which they were, or be, 
 " or in which they l)e, or were conversant," shall be insert- 
 ed.C5") Under this statute, the plaintiff may describe the de- 
 fendant, either by his addition of degree, or mystery ; and, 
 therefore, where the defendant is described by the addition of 
 gentleman or yeoman, *he cannot plead that he was a mer- ^ 247 
 
 chant. Sec. or vice -versa ;(A) and the plaintiff has his election 
 to describe the defendant, either of the place of his abode, at 
 the time of the issuing of the writ, or of any place which he 
 had formerly frequented (0 When the defendant is described 
 by an alias dictus the adcliiion should be after the first name ;{]') 
 and where there are several defendants, the addition of each 
 is usually described separately, but in an action against hus- 
 band and wife, no addition of the latter is necessary.(/l-) In 
 proceedings to outlawry and in indictments, these points are still 
 material, and indeed should in all cases be attended to by the 
 pleader in framing the jirscijic i but as oyer of the writ can- 
 not now be craved, and as it is unnecessary to insert the de- 
 fendant's addition of place or degree in any declaration, (/} no 
 advantage can be taken in pleading of a mistake of the addition 
 
 tlxe same place, merchant, that they be (^) 1 H. Y. e. 5. 
 
 before us on (a ^etierul re- (A) Ld. Kaym. 1541. 1 Stra. SjC. 
 
 turn duv) wheresoever we shall then 2 Stra. 816. 
 
 be in Enghind, to shew, For tliat (/) 2 .Stra. 924. Barnes, l62. I 
 
 whereas, he. {here srt forth the cause Lutw. 40. 
 
 of aciionpreciaely as in a declaration, (J) Leach, C. L. 4G9. 1 Saund. 
 
 and conclude us follows) to the da- 14. n. 1. 
 
 Tna;,'e of the s;iid A B, of I. (k) Bac. Ahr. Misnomer, B. 4. 
 
 as it is .said, JSce. (/) 3 B. & P. 395. 
 
 (/) 3 Lev. 235. Post, 249. R. E 
 2 G. U. a.
 
 247 O^ THE DECLARATION. 
 
 Of the Prx- in the praeci/ie or original, unless the misaddition be unneces- 
 sarily inserted in the declaration, in whiqh case, it would be 
 open to the defendant, to plead in abatement, (m) The pracifie 
 must require the sheriff to have the defendant in court, on a 
 general and not a special return day, and in the King's Bench, 
 not at Westminster, but generally, wheresoever the king shall 
 
 '" 248 then be in EjiglandXn) In actions of debt *and covenant, the 
 prxcijie and capias thereon, as framed by the pleader, contain 
 only a general complaint, without expressing the particulars of 
 the cause of action.(&) 
 
 OF THE DECLARATION. 
 
 The declaration is a specification, in a methodical and legal 
 form, of the circumstances which constitute the plaintiff's 
 cause of action. (/i) It may be considered with reference, 1st. 
 To those general requisites or qualities, which govern the 
 whole declaration ; and, 2dly. To its form and particular parts 
 and requisites. 
 
 /. THE GE.YERAL REQUISITES. 
 
 I General re- "^^^ general requisites or qualities of a declaration are ; ist. 
 
 quixitex. That it correspond with the process,(y) and in bailable actions 
 
 with the ac etiani and aff.davit to hold to bail. 2dly. That it 
 contain a statement of all the facts necessary in point of law to 
 sustain the action, and no more ;(r) and 3dly. That these cir- 
 cumstances be set forth with certainty and truth. (s) 
 
 (m) I B. &. P. 648. 1 S£iuiid. 318, (/>) Co. Lit. 17. a. 303. a. Bac. 
 
 a. U.S. aSaund. 209. a. n. 1. Abr. Pleas, B. Com. Dig. P}c&Uer, 
 
 («) Tidd's Prac. 100. Stra. 1155. C.7. Heath's Maxims, 1, 2. 
 
 (.i) Sec die forms in Debt, Tidd's (9) Com. Dig. Pleader, C. 13. 
 
 Forms, 31. 4j. Imp. Prac. K. B. 7th (r) Co. Lit. 303. a. Plowd «•* 
 
 edit. 591. Cth edit. 537. And in Co- 12'2. 
 
 Tenant, Tidd's Forms, 31.45. f^i) Id. ibid.
 
 OF THE DECLARATION. 248 
 
 Regularly the declaration should correspond with the pro- / Geiieral 
 
 ,. . i • f ii ^ ly (/nisi ten. 
 
 cess; but as according to the *present practice ot the courts, i,t. .si.ouid 
 over of the writ cannot be craved, and a variance between the fiTespoud 
 
 ujfvi v»» 7 \i,n\i process. 
 
 writ and declaration, cannat in any case be pleaded in abate- ^ 249 
 ment ;(/) and as there are several instances in which the court 
 will not set aside the proceedings, on account of a variance be- 
 tween the writ and declaration,(K) many of the older decisions 
 are no longer applicable in practice. In the King's Bench, 
 when the proceedings are by special original, we have seen that 
 the venue must be laid in the county into which the origi- 
 nal was issued, or in bailable cases the bail vvill be dischar- 
 ged ;(t)) but in the Common Pleas the bail would not be dis- 
 charged by such variance, (w) and where an outlawry has been 
 reversed, the plaintiff may in C. P. declare in any county. (r_) 
 We Avill consider how far, accoi-ding to the present practice of 
 the courts, the declaration must correspond with the process, 
 or the ac etiam and affidavit to hold to bail, with respect to, 
 1st. The names of the parties to the action; 2dly. The number 
 of such parties; 3dly. The character or "right in which they \l^,^ 
 sue, or are sued ; 4thly. The cause and /brm of action ; and un- 
 der each of these heads, the consequences of a deviation from 
 the process. 
 
 1st. With respect to the names cf the parties, when bailable 
 or common process in the King's Bench or Common Pleas has 
 been issued against the defendant by a wrong name, if heappe^xr 
 in such name he will be estopped from pleading in abatement, 
 and *the declaration may be conformable to the writ;(x') and ^ orp 
 if he appear by his right name, the plaintiff may declare against 
 him by such name, stating, that he was arrested or served with 
 process by the other, in which case the defendant cannot plead 
 the misnomer in the writ in abatement. (w) It has been deci* 
 
 (0 1 Sauncl. 318. a, 3 B. & P. {v) Willesy 461. Barnes, 94. 1 
 
 395. 6 T. R. 364. Salk. 8. 3 T. R. 611. 2 Wils. 393. 
 
 (n)CT. R. 364. Bac. Abr. tit. Pleas, I. 11. Tidd'a 
 
 {v) Ante, '216. Prac. 582. n, i. ace. Ld. Raym. i249, 
 
 (w) Imp. Prac. C. P. 150, 160. R. cont. 
 
 H. 22 Geo. III. C. P. (to) S T. R GU 1 B, J* P. 64* 
 
 (.r) 3 L6y. 245 Imp. C P. 612. 2 Wils '593, 
 
 Vol. I r 23 1
 
 2.50 OF THE DECLARATION, 
 
 /. General ded in the King's Bench, that on process not bailable, if the de- 
 fendant do not appear, the plaintift' cannoU rectify the mistake 
 by appearing for him in his right name, according to the 
 statute ;(ar) though if the plaintiff were to appear for the de- 
 fendant, in the name by which he is sued, this would warrant 
 him in proceeding to judgment and execution ;(i/) but it has 
 been decided in the Common Pleas, that even in bailable pro- 
 cess, an arrest of a person by the naine of Westoji^ and declara- 
 tion de bene e.ise against him, as JVaaott sued by the name of 
 Weston, was regular ;(r) and it has been since determined in the 
 King's Bench, that if a defendant be served with process by a 
 wrong christian name, and afterwards the plaintiff" enter an ap- 
 pearance for him, and serve him with notice of declaration by 
 his right name, and proceed to judgment and execution, the 
 court will not set aside the proceeding for irregularity, merely 
 on the ground that the defendant never appeared, because he 
 ought to have pleaded such misnomer in abatement ;(a) and 
 it has been decided, that where process has been issued against 
 
 ^251 ^ defendant, *by a wrong name, such misnomer may be cured 
 by amending the writ, if there be any thing to amend by, 
 and then declaring against the defendant by his right name ; 
 as where the defendant is properly named in the affidavit to 
 hold to bcdl, but is mistaken hi the process. (6) If there be rea- 
 son to doubt the defendant's name, it may be advisable either 
 to wait till the defendant has appeared, and to declare in chiet^ 
 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 
 <' othcrv^-ise yo/m So'ayis" \% sufficient. (c) If the plaintiff", not be- 
 ing aware of the real name of the defendant, declare against him 
 by his wrong name, and he plead the misnomer in abatement, it 
 is not necessary to enter a cassetur, for the court '4\ ill give the plain- 
 tiff" leave to amend, even in proceedings against aprisoner,(rf) un- 
 less previous to the application, the debt has been tendered. 
 
 (.r) 3 T. R. Gil. ill wliat name tlic \na.h\iiff e?itered tht 
 
 V (v/) 2Si;-a. 121S. C T. R. 234 to appearance. 
 
 2j6. (b) 2 B. k P. 109. 
 
 (-') 1 15. k r. 105. (f) 3 East, 111. 
 
 {a) 3 Eabl, 107. But it is observ- (</) 7 T. K. 083. 
 od in the notes, that it did not appear
 
 OF THE DECLARATION. 2^1 
 
 "Where there has been a misnomer in the writ, care must be J'- f^eneral 
 
 requisites. 
 taken on the part of the defcndunt, not to waive the objection ;(c) 
 
 and it is said, that he may move before appearance, to set aside 
 the proceedings for irregularity,(/) or where he has been ar- 
 rested on bailable process, he may support an action of tres- 
 pass for the false imprisonment. (i') 
 
 Where the name of the filaintiff has been mistaken in the 
 process, it is advisable, as in the case of a defendant, to state, 
 that " .4. B, (the real name,) at whose suit, by the name of K 
 « *i?, C D was served with process," or " arrested in this suit, * 252 
 
 " complains of the said C D being," Scc.(/2) for if the plain- 
 tiff's misnomer be continued in the declaration, the defendant 
 may plead it in abatement, though he cannot in bar, even in 
 the case of the name of a corporation. (/) 
 
 2dly. With respect to the declaration corrcbponding with the 
 process in the yjumber of the parlies, it has been held that if a 
 w^rit be sued out in the name of one filuintijf^ the declaration in 
 chief must not vary, and if it be delivered in the name of two 
 plainlifls, the proceeding will be set aside for irregularity, (_;') 
 But in the King's Bench, where the defendant has appeal ed to 
 process at the suit of two, one of them may declare alone by 
 the bye, for he will be considered as a stranger \[k) and though 
 the plaintiff in the original action, must declare in chief, before 
 he can declare by the l)ye,(/) any other j)erson may declare by 
 the bye, before the delivery of u declaration in chief ;(7;!) and in 
 an action at the suit of the husband alone, a declaration may be 
 delivered by the bye at the suit of himself and feme, and vice 
 versa, though it is otherwise in the Common Pleas. (7?) 
 
 Process by bill or latitat, not bailable in the King's Bench or 
 common process in the Common Picas, may be against four 
 defendants, and the plaintiff may declare thereon separately 
 against each ;(c) but on bailable process against several, the 
 
 (e) See tlic mo»le of appearance, {k) Bun-. 2180. 
 an.l of givin- lliu bail-bond, Tidd's (/) O T. I{. l.iS. 7 T. R. 80. 
 I'rac. 3(1 edit. 5Si. n.i. (m) Col. I'biliipb' case. I Crornp. 
 
 (/) I n. & P f,i7. 100. 
 
 (^) 8 East, 3-2S. Tidd's Prac. 582. (») Bnrncs, 337. 1 Sul. Trac 
 
 n i. c. f). s. 1. J5. 3. 
 
 (/i) t n. & P. Gir. (&) -i East, .S89. 1 B. k P. 19. 4?- 
 
 (i) 1 B. V P. 40. 3 Anstr. '}Zo. 4 T. R. 095. Tidd's Prac. 80 
 
 CO 1 B. it P. 3S3.
 
 253* OF THE DECLARATION. 
 
 /. General *declaration must be against all jointly, or the declaration will be 
 set aside for irrcgularity.(/z) 
 
 3dly. XJ pon common process, not bailable, and which docs not 
 specify the characttr or right in which the plaintiff sues, he 
 may declare qui tain, or as executor, or administrator, or as- 
 signee, or any other special character, for this does not tend 
 to enlarge, but to narrow the demand which the defendant 
 was called upon to answer ;{q) and it has been decided, that 
 though the plaintiff may style himself executor, (not stating 
 himself to sue as executor,) or give himself any other superfluous 
 description in the process, and declare otherwise, this will not be 
 irregular, because the demand is still the same.Cr) But where 
 the process is to answer the plaintiff, in a special character or 
 right, he cannot declare generally, and if he do, the variance 
 will be fatal, and the court will set aside the proceedings,(«) as 
 if the process be qiu ta7n,(t) or as executor,(M) or as assignee 
 of a bankruptjCf ) the declaration can only be in the same cha- 
 racter ; and in the latter cases, where the action is bailable, the 
 court will discharge the defendant out of custody, on filing com- 
 
 ^ Q-^-f iif^oi^ *bail ;(w) and where the process is bailable, to answer the 
 ^ plaintiff in his own right, and he declare as executor, the 
 
 court will order a common appearance to be entered, leaving 
 the plaintiff, however, at liberty to proceed upon his declara- 
 tion. (>r) It seems, that if the process be general in the body of 
 it, a variation in the declaration from the ac etiam part, or from 
 the affidavit to hold to bail, is only a ground for discharging the 
 defendant on common bail, and not for setting aside the proceed- 
 ings for irregularity. (y) 
 
 {p) Id. ibid. 5 T. R. 722. Tidd's (.s) Ante, note (y). 
 
 Piac. 164. How to act when one of {t) Burr. 2417. 2 Stra. 1232. n. 1. 
 
 the defendants cannot be arrested or {v) 8 T. II. 416. 1 B. & P. 383. 3 
 
 served with process. See Sel. Piac. Wils. 61. 
 
 vol. 1. c. 6. s. 1. E. Imp. Prac. K. B. (v) 1 Tidd's Prac. 3d edit. 403. n- 
 
 Cth edit. 545. 7 edit. 599. 1 Stra. g. 
 
 47.^. (-tO 8T. R.416. 
 
 (</) Stra. 1232. 2 Bl. Rep. 722. 3 (.r) 3 Wils. 61. 
 
 Wils. 141. Burr. 2417. 1 B. &c P. {ij) 6 T. R. 363. 3 Wils. 141- lOI- 
 
 383. n. b. 8 T. R. 416. 
 
 ()■) 2 Bl. Rep. 722. 1 B. & P. 383 
 n. b.
 
 OF THE DECLARATION. 254 
 
 4t:hlv. Upon common process, by bill in the King's Bench, or /• General 
 upon a cajdas or original yware clausum /regit m the Common 
 Pleas, the plaintiff' may declare in any cause of action whatever, 
 though the writ in each case is in trespass.(z) But in bailable 
 uctions, the declaration must correspond with the cause, and the 
 form of action in the affidavit, and the ac etiain part of the lati- 
 tat, or other process, for otherwise the defendant will be dis- 
 charged out of custody, on filing common bail ;(a) but this 
 will be the only consequence, for the court will not in such case 
 set aside the proceedings for irregularity .(6) And a variance 
 in the amount of the debt, between the ac etiam part of the lati- 
 :at and the declaration, is not even a ground for discharging the 
 defendant on common bail ;(c) and where the sum *sworn to is ^- 255 
 under 40/. a variance between the form of action in the ac etiam 
 and the declaration, is not material. (c) When the proceeding 
 has been by special original., the plaintiff" should declare in 
 chief, for the same cause of action expressed in the writ, and 
 in bailable cases if there be a variance between it and the de- 
 claration, the defendant will be discharged on entering a com- 
 mon appearance ;(c/) but the proceedings will not be set aside, 
 merely on account of a variance in the cause of action, and, 
 therefore, the only consequence of the mistake is, that the 
 plaintiff" loses the security of the bail.(f) 
 
 The declaration must allege all the circumstances necessary 2dl_v. Thcu.- 
 
 for the support of the action, and contain a full, regular, and ^,!,te all the 
 
 methodical statement of the injury which the plaintiff" has sus- ^'^'^^t '^^^^^^^^ 
 
 J ■' » to the support 
 
 tained, with the time and place, and other circumstances, with of the action 
 such precision, certainty, and clearness, that the defendant 
 knowing what he is called upon to answer, may be able to 
 plead a direct and unequivocal plea, and that the jury may be 
 enabled to give a complete verdict upon the issue, and that 
 the court, consistently with the rules of law, may give a cer- 
 
 (:) Cowp. 455. R. E. 15 Geo. II. (c) 5 T. R. 402. Sed vide 2 East, 
 
 re;^- 1. 205. 
 
 (<0 " T. R. 80. 8 T. R. 2". Cowp. (r) I H. Bl. 310. 2 Saund. 52. a. 
 
 455. 1 H. Rl. 310. {({) 5 T. R. 402. R. H. 8 Car. I. 
 
 {b) 6 T. R. 363. 2 Wils. 303. Ante, {e) 6 T. R. 3C3. 2 Wils. 39.?. 
 ■?09.
 
 255* OF TftE DECLARATION. 
 
 /. General tain and distinct judg-ment upon the premises. (y) The gene- 
 fequisites. ^.^j j.yjgg ^^ ^^ \s\\^t facts must bc stated, have been considered 
 in the preceding chapter,(5'' as well as the inconveniences 
 * 256 which may arise from the *statement of superfluous or un- 
 necessary mattcr.(//) The requisites of the declaration in 
 each particular case, so much depend upon circumstances, that 
 any general observations in this place upon the structure of a 
 declaration would be but of little utility. 
 3(lly- Of the We have already considered the different degrees of cer- 
 ciuh-e'din a <\c^ tainty required in pleading, and we have seen, that the cer- 
 daration.(/) tainty necessary in a declaralion, is to a certain intent in gene- 
 ral//) which should pervade the Avhole declaration, and is par- 
 ticularly required in setting forth the parlies, time, place, and 
 other circumstances necessary to maintain the action. (it) 
 
 1st. It must be stated with certainty who are the /ier?:V* to 
 the suit ;(/) and, therefore, a declaration by or against " C 23 
 "and company," not being a corporation, is in ufficient •,(m) but 
 where there are several plaintiffs or defendants, whose names 
 have been once described, it is sufficient afterwards, to adopt 
 the words, " plaintiffs," or " defendants," without again enu- 
 merating all the names ',{71) but this is not usual in practice, 
 unless the parties be very numerous. We have seen, when 
 the declaration may vary from the jirocess, in the name of the 
 defendant, or may describe him with the alias dictns.(o) If 
 ^ 257 ^^^^ plaintiff's name, even in tlie *case of a corporation, be 
 mistaken, the objection can only be taken by plea in abate- 
 nient.(/i) In declarations upon contracts, it should be express- 
 ly stated, by and with wliom the contract was made ;(y) and 
 where there are two or more persons of the same name, they 
 should be distinguished from each other by the insertion of 
 bome appropriate allegation, as " the now plaintiff," or " the 
 
 (/") Cowp. CS2. 6 East, 42'2, 423. (/) Com. Dig;. Pleader, C. 18. 
 
 Sr.n. 62,5. (/») ST. R. 508. 
 
 (..r) Ante, 21c to 229. (11) I New Rep. 2S9. 
 
 (A) Ante, 2.51 to 2.'?4. {0) Ante, 249 to 252. 
 
 (0 Ante, 236 to 241. (/>) 1 B. & P. 40. 3 An.'^tr. 9.5o. 
 
 0) Ante, 237. Plowd. 84. Co. (9) Lil. Itaym. 899. Com. Dig, 
 
 Lit. 30.3. a. 1 New Rep. 173. Action, Case Assumpsit, H. 3. Plejwt- 
 
 (A-) Com. Dig. Pleader, C. 18 to C. er, C. IS. 
 •■r. Tidd'b Pruc. 3'J edit. 405.
 
 OF THE DECLARATION. 257 
 
 *' defendant in this suit," ov " the said E F, deceased," /. fienerdl 
 
 . . . , . , Ml requisites. 
 
 &:c.(r) in general, however, the omission m this respect, will 
 
 be aided by intendment, particularly upon a general demurrer, 
 or after verdict.Cs) But where the plaintiff's name has by mis- 
 take been inserted, instead of the defendant's, or vice versa, 
 the declaration will be bad upon special demurrer ;(0 though 
 it is aided by verdict, or upon general demurrer, by the sta- 
 tutes of jeofails •,{u) but it has been decided that these statutes 
 do not extend to the names of third personsX-v) When the 
 debt arose on record or specialty, it was formerly usual to state, 
 as well in the writ as declaration, the defendant's description in 
 the recoi-d or specialty, under an alias dictiis, but this is no 
 longer the practice. (^w) 
 
 2dly. Tlic declaration in personal actions, must in general, 
 state a r/wd-, when every material or *traversable fact happened, ^ 258 
 
 and when a venueis necessary, time must also be mentioned. (x) 
 The precise time, however, is not material, even in criminal 
 cases,(T/) unless it constitute a material part of the contract, Sec. 
 declared upon, or where the date, &c. of a v/ritten contractor 
 record is averred, (r) or in ejectment, in which the demise 
 must be stated to have been made after the title of the lessoi 
 of the plaintiff and his right of entry accrued. (fl) Thus in as- 
 suTTi/ifiit upon a parol contract, the day upon which it is made 
 being alleged only for form, the plaintiff is at liberty to prove 
 a contract express or implied, at any other time ;(6) though in • 
 
 ctating the date of a promissory note or deed, or in describing 
 a usurious or other contract relating to time, it must be truly 
 stated. (c) A deed, however, may be stated in pleading, to 
 have been made on a day different from that on which it bears 
 date, though in such case, the words " bearing date," Stc 
 
 {>•) 2 Wils. 386. Cro. Eliz. 2G7. C-24, C,25. Com. Dig. Plcadci-, C. IC 
 
 Coin. Dig. Plcailer, C. 1 S. Plowd. '24. 
 
 (v) Id. ibid. 1 New Kcp. 172. (y) Id. ibid. 1 .Siiund. '24. n. 1 
 
 (0 1 B. 8c P. .69. Wilies, S. Co. Lit. '2S3. a. 2 Sauiid. 5. n. 3. -295 
 
 (?0 10 k ir Car. II. c. 8. 4 Ann. n. 2. lluwk. P. C. B. 2. c. 2: 
 
 c. If). Com. Dig. Action, Case Ab- s. 81. 
 
 sumpsit, H. 3. Willcs, 5. (:)4T. R. 590. 10 Mod. 313. 
 
 (r) Willcs, 8, 9. («) 2 East, 257. 
 
 (w) 1 Saund. 14. n. 1. (6) 2 Stra. 806. 10 Mod. 31;. 
 
 <.'•) Per Bulk-r, J. ;-. T. R. C20 (r) Id. ibid. 3 T. K. 531
 
 258 OF THE DECLARATION. 
 
 / General shoiild be omlitcd.(r/) So in trespass the time is not mate- 
 
 fqui'i t.\. nal,(f) and where several trespasses are stated to have been 
 committed, on divers days and times, between a particular day, 
 and the commencement of tiic action, the plaintifl' is at liberty 
 
 "* 259 ^° prove a single act of trespass, anterior *to the first day, 
 though he cannot give in evidence repeated acts of trespass, 
 unless committed during the time stated in the declaration .(/") 
 When in one continued sentence, or in several sentences con- 
 nected by the conjunction " and," several facts are stated, the 
 time though only once alleged will apply to each fact ; as iu 
 trespass that the defendant on. Sec. at, 8ic. made an assault on 
 the plaintiff and took and carried away a bag. (5') And it is said, 
 that in averring the performance of a contract, it is not neces- 
 sary to stale any particular day, unless time be matcrial,(A) and 
 to a negative matter, no time need be alleged. (0 In framing 
 tlie declaration, care must be taken, that no part of the cause 
 of action, or damages resulting from the injury, appear to 
 have accrued after the time to which the declaration by its 
 title refers, for otherwise it will be subject to a demurrer ;(y) 
 and where it is positively and expressly averred in the declara- 
 *ion, that tlie plaintiff has sustained damage from a cause, sub- 
 sequent to the commencement of the action, or previous to 
 the plaintiff 's having any right of action, and the jury give en- 
 tire 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 
 
 *" 260 therefore it cannot be intended, that the jury ever had it under 
 
 their consideration, the pluintiff will be entitled to judgment. (X-) 
 After verdict, judgment will not be stayed or reversed, for a 
 mistake of the day, month, or year, in any declaration, &c 
 where the right time in the same, or any proceeding writ, &c 
 is once alleged,(/3 and this provision is now extended to judg- 
 
 (</) 4 East, 4r7. {i) 5 T. R. ClG. Plowd. 24. a. 
 
 (c^ Co. Lit. 2S.3.a. Com. Dig. Pleader, C 19. 
 
 (/) Post, vol. d. 3C,7, 56S. n. s. • ( /) 2 Saund. '201. n. 1. e. 
 
 (5) Cro.Jac. 44,3.26-2. An(ir.'251. {h) 2 Saund. 171. c. Com. Dig 
 
 Com. Di". Pleader, C. 19. I Ld. Pleader, C. 19. And ante, 233, 234 
 
 Kaym. 576. (/) 16 k 17 Car. II, c. 8. Cora 
 
 (/i) Cro. Eli? fiSO Dig. Pleader, C. 19-
 
 -OF THE DECLARATION. 
 
 260 
 
 taents by confession, nil dici(, Sec. in courts of record,(m) and /. Geneva/ 
 in penal actions.(«) -equh-ite.. 
 
 3dly. It is also essential to the declaration, that a place be al- 
 leged, where every fact material and traversable occurred. (o; 
 I shall postpone the consideration of this requisite, till I state 
 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 assumjisit, the 
 consideration of the contract, and the contract itself must be .^ 
 
 luUy stated, and, therefore, in the instance before mentioned, 
 a^ declaration stating that in consideration that the plaintiff" had 
 sold to the defendant a certain horse at and for " a certain quan- 
 " tity of oil," not specifying the quantity, is insufficient. (//) So 
 a declaration in debt on " a certain bond," without stating the 
 particulars, is not sufficiently certain •,{q) and a declaration hi 
 trespass for taking fish. Sec. or divers goods and chattels, without 
 ♦specifying the number or quality, is too general. (r) So a dc- * 261 
 claration in ejectment for a " tenement," not shewing of whaf 
 description. (5) On the other hand, we have seen that the de- 
 claration should contain no unnecessary statement, nor prolixity 
 in the statement of those facts which must be alleged.(;) The 
 application of these several rules will be better considered 
 when we examine the particular parts of the declaration, it 
 may here suffice to observe, that the want of sufficient certain- 
 ty, is generally aided by verdict at common Iaw,(u) or even 
 by the defendant's pleading to the declaration, (i)) or by demur- 
 "ing to the whole, where only a part of the count is bad. (7;/) 
 
 ij. rrs I'.inrs .lvi) particular requisites. 
 
 The parts of a declaration are, 1st. The title of the court and 
 term. 2dly. The venue. 3dly. The commencement. 4thly. 
 
 (m) 4 Ann. c. 16. (?) Ante, 231 to 2,)3. 
 
 (7i) 4 Geo. 11. c. 26. Willcs, COO. («) 2 B. k P. 205. I New Rep 
 
 (0) 5 T. 11. 620. 172. 2 Saund. 74. b. 1 Saund. 228. :. 
 
 {/)) Ante, 240. (r) 2 Saund. 74. b. 
 
 Iq) Id. ibid. (w) 2 Saund. 379, .'5S(> Com. Dkr: 
 
 (r) Com. Dig. Pleader, C. 21. Pleacli.T, C. 3? 
 
 (s) 1 East, 441. 8 East, 357. 
 \'0L. 1. r 24 "! 
 
 IL
 
 261 OF THE DECLARATION. 
 
 II. lis parts. The Statement of the cause of action. Sthly. Several counts. 
 
 6ihly. The conclusion. And 7thly. The profert and pledges. 
 
 1st. Tlie title In the King's bench, when the proceedings are by bill, the 
 of tKe court , , . . •,,•,, ,- , , , . n 
 
 and iLi-m. declaration is entitled with the name ol the pruthonotary, or chief 
 
 clerk, now " Markham and Le Blanc" for enrolUug pleas in civil 
 *■ 2G2 causes, depending between party and *party, on the plea side 
 of the court, and paniculaily by bill.(x) When the proceed- 
 First title of ings are by original, the declaration is usually entitled " In the 
 ^'"^' " King's Bench ;" and in the Common Pleas and Exchequer, 
 
 the name of the court is superscribed, as in a declaration by 
 original, in the King's Bench. 
 Of what terra. The title of the ^er/;?, with reference to the ancient proceed- 
 ings ore tctius, is to be considered as a statement or memoran- 
 dum of the time when the plaintiff comes into court, and alleges 
 his cause of complaint ;(;/) and as this could only be in term time, 
 when the defendant was in court, conseiiuentlya declaration must 
 in general be entitled in term, though by the present practice of 
 the courts, a bill may be filed in vacation, against a member of 
 parliament, an attorney, or a prisoner, with a special memoran- 
 dum of the preceding terni.(z) The declaration by bill, should 
 regularly be entitled of, or on a day after bail has been filed, or 
 on 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 tcnus, the defendant was in court, 
 to hear the cause of complaint ;(a) unless in the case of a de- 
 claration de bene esse. Therefore, if there be two defend- 
 ants, and one of them cannot be served or arrested on the first 
 ^ 263 process, *and he be brought into court upon another writ, re- 
 
 turnable in a subsequent term, the declaration should be enti- 
 tled of the last term ;(A) and where one of several defendants 
 has been outlawed, the declaration must be entitled after such 
 outlawry is complete ;(c) luid where a sole defendant cannot be 
 served or arrested on process returnable in one term, and an 
 
 (a-^Tidd's Prac. 3d edit. 30. Com. Dig-. Pleader, C. 8. Rep. T. H. 
 
 0/) 1 T. R. 116. 141. Tidd's Prac. 3d edit. 291. 36/" 
 
 (=) 5 T. R. 325. 8 T. R. 643. 2 1 B. & P. 307. 
 
 Saiiud. I. n. I. (/>) 1 Wi!s. 78. 242, 
 
 («) 2Lcv. 13. 176. I Vent. 135. (r) 1 Eust, 133. 1 AVils. 78. 
 
 M
 
 OF THE DECLARATION. 263 
 
 alias returnable in the next be issued, the declaration may be ^{- Its parts. 
 entitled of the lust tcrm.(c/) In these cases, however, the plain- x-tim. 
 tiff cannot upon a declaration in chief, give in evidence a cause 
 of action arising after the first term ;(c) but a declaration by the 
 bye, liot being founded on the original process, may be entitled 
 of the second term, and the plaintiff therein may give in evi- 
 dence a cause of action, arising after the first. (y") 
 
 It has been the practice, when the cause of action would ad- Special title 
 . , , , , . , , , , .,, • • , when proper. 
 
 nut, to entitle the declaration 'whether by bill or original) gene- 
 rally of the term in which the Avrit is returnable ; but when 
 the proceeding is by bill or latitat in K. B. it is advisable to en- 
 title the declaration specially, of the day on which it is filed or 
 delivered, so as to admit of proof of a new cause of action, or of 
 a promise or acknowledgment, after the issuing of the process, 
 and after the first day of term, which would entitle the plaintiff 
 to recover, even in bailable process, and which could not be pro- 
 ved, were it not for such special memorandum ;(^) *and such * 264 
 special title may also be advisable in declaring in the Common 
 Pleas.(/;) Where the cause or right of action, whether by bill 
 or original, accrues after the first day in full term, such special 
 memorandum is indispensably necessary, for a general title re- 
 lates to the first day in full term,0') unless there be some pro- 
 ceedhig of record, to refer it to a subsequent day, as in a de- 
 claration in scire facias^ which need not be entitled specialJy.Cy) 
 Thus, if the bill of exchange become due, or the bail-bond be 
 assigned, or the letters of administration be granted to the 
 plaintiff, after the first day of the term, a special title is neces- 
 sary ',{k) and where a latitat was sued out against bail, return- 
 able on the 20th of JVbveynber^ and the declaration was entitled 
 against them on the 16th, and in the pleadings subsequent to the 
 declaration, the proceedings appeared on the record, the decla- 
 ration was held bad on demurrer, on tiie ground that it should 
 
 (</) 3 T. R. 627. (0 T. R. IIG. 1 Sauml. 40. n. i. 
 
 (e)3T. R.624. Cartli. 113. 2 Bl. Rep. 735. 
 
 (/) 3 T. U. 627. (7) 2 Bl. Rep. 73.^. 3 Wils. ISZ^In 
 
 (?) 4 East, 75. 7 T. R. 4. Post, 2 Lev. 170. the court searched for the 
 
 vol. 2. 1. n. a. bill. Spc also id. 213. 1 Vent.2 64, 
 
 (A) 1 B. & P. 3-5^rr 2 Eaot, ■~<35 IT. R. 117, 118. 
 
 Popt, vol. 2. 3. n. k. f^) Supra, n i I East, 499 
 
 l^k.
 
 264 OF THE DECLARATION. 
 
 11. Its parts, have been entitled after the return day of the latitat. {I) A spe 
 
 First titie of cial memorandum is also frequently advisable, in order to avoid 
 the necessity of producmg the writ ;{m) and when there has 
 been a continued trespass or damat^e, the declaration should b& 
 entitled as late as possible. («) Where, however, the cause of 
 
 ^ 265 action was stated to have accrued on the first *day of the term, 
 it was held on special demurrer, that the declaration might be en- 
 titled of the term generally, because formerly, when the plead- 
 ings were ore tenus, the plaintiff could not declare, till the ac- 
 tual sitting of the court, and the cause of action might have ac 
 crucd before such sitting (ci) 
 
 Consequences When on the face of the declaration entitled generally of the 
 term, it appears that the cause of action accrued after the 
 first day thereof, the defendant may demur,(/0 or may move 
 in arrest of judgment, or bring a writ of error ;((7) the court, 
 however, will even after cri'or brought, give leave to amend on 
 payment of costs ;(?) and indeed it has been holden, that if after 
 verdict, it be made appear upon motion in arrest of judgment, 
 that the bill was filed and declaration delivered after the cause of 
 action accrued, the plaintiff is entitled to judgment without any 
 amendment, for though the declaration being general, relates 
 prima facie., to the first day of the term, yet the bill being- 
 filed on a subsequent day all the subsequent proceedings relate 
 thereto, by the course of tlie court of which, if error be brought, 
 the court must ex officio take notice :(s) so upon a motion in 
 arrest of judgment, the general title was aided, by referring to 
 the time of filing bail ;(/) and in another case it was held, that 
 
 ■*■ :266 after verdict, the only course was to *allegc diminutioTi,(2/) 
 
 Therefore, though it is more usual to file a new bill and amend 
 by it,(i') or to submit to the reversal of the judgment of the 
 coui't, in which case no costs are payable, yet it may be ques- 
 tionable, if in any case this objection can be taken with effect in 
 arrest of judgment, or even by error, unless it appear upon an 
 
 (/) 8 T. R. 629. n. b. _ K. 118. 1 Vent. 2G4. 1 Sid. 373. 432. 
 
 (w) 2Saun(l. 1. c. <]. 2 East,' 574. Bull. N. P. 137. Tidd's Prac. 3d 
 
 (») 2Saund. 171. c. edit. 295. Ante, 223, 224, 225. 
 
 (o)lT. R. 116. (0 2 Lev. 13. 176. 1 Vent 135. 
 
 (/j^ 1 T. R. 116. Bull. N. P. 137, 138. Carth. 114, 
 
 (y) 7 T. R. 474. 115. Tidd's Piac. 3d edit. 295. 
 
 (r)7T. R. 474. 2 Stra. 1271. 1 (?/) Cartli. 288, 2S9. 2 Lev. 176. 
 
 Wils. tn. Tidd's Prac. 3d edit. 295. (v) Tidd, 295. 
 (.s) 2 Lev. 176. 3 Salk. 9. 1 T. 
 
 u^
 
 Ot^ THE DECLARATION. 260 
 
 nvestigation of the proceedings, that in fact the bill was filed, II. It.s pans. 
 or by original the suit commenced, or in an inferior court the ^"'^'^ ^"'^ ^ 
 
 plaint filed, anterior to the cause of action, in which case it will 
 ^e ground of error. (w) By an express provision, (r) these ob- 
 jections arc aided in the court of Common Pleas at Lancaster. 
 And in trespass, with a continuance after the term of which the 
 declaration was entitled, the court refused to arrest the judg- 
 ment.(j/) In the modern action of ejectment, the declaration 
 delivered to the party in possession, being in the nature of pro- 
 cess, is entitled of the preceding term, though the demise bo 
 laid on a subsequent day, for if he appear, he accepts a declara- 
 tion eivtitled of the subsequent term, and if he do not appear, he 
 being no party to the suit against the casual ejector, cannot take 
 any advantage of the seeming objection. (z) 
 
 Where the proceedings are entered with a general memoran- 
 .ium, and the cause of action appears in evidence to have arisen 
 after the first day of the term, the plaintiff will be nonsuited, un- 
 less he produce the writ, and thereby shew, *that it was really * 267 
 sued out subsequent to the cause of action ;(a) and where in a 
 -•.imilar case the fact complained of was admitted by the defend- 
 ant's plea of son assault deinesr.c, the court held it to be well 
 ■nough, for the plaintiff need not give any evidence on this plejf, 
 .ailess to aggravate damages, and the court will not nonsuit him, 
 because it is amendable by a new bill .(6) When the declaration 
 is improperly entitled, the plaintiff may on payment of costs ob- 
 tain an amendment, even after error brought.(ir) It may also 
 be amended at the instance of the defendant, if necessary for 
 his defence ; thus where the declaration is entitled of the term 
 generally, and the defendant pleads ^ilene adndnistravit^fjl) or a 
 tender made before the exhibiting of the bill, upon which ho 
 would give in evidence an administration of assets, or tender 
 niadc betAveen the first day of term and the day of suing out 
 
 fw) Cardi. 11.3. Rull. X. P. 1.'.? J Bl. Kcp. 312. Bull. N. P. 137. Tidd's 
 
 Viiilr. '250. Wai-d is. Honey wood, Prac. .mI edit. 294. 
 
 ■ nl. 19. M.S. 307. 7 T. n. 474-. Ptim. (6) 2 Sti-a. 1271. 1 Wils. 171. 
 
 j:joctraei.t, 210. 217. (<•) I Wils. 78. 7 T. K. 474. 1 
 
 (x) 39 i< 40 Geo. III. c. 103. E.ist, 133. 8-T. R. 629. n. b. Tidd's 
 
 iy) Andr. 250. Prac. 3d edit. 295. Ante, 265. 
 
 (i) Post, vol. 2. 394. ri b. Ruji. {d) Rep. temp. Hardw, 141. X 
 
 Ejectment, 20R, 209. 217. bid. 433. Tidd's Prao 3d edit. 20-4..
 
 -267 OF THE DECLARATION. 
 
 » / [mris. the AViil) he should either call upon the plaintiflf to entitle hib 
 declaration properly ;(c) or plead the fiction of the court spe- 
 cially, without calling upon the plaintiff to alter his declaration, 
 or produce th.e writ on the trial. (y) 
 
 Secondly, Uie Immediately after the title of the declaration, follows the 
 Statement m the margin oi the venue or county m which the 
 
 "*^ 2G8 facts are alleged to have *occurred, and in which the cause 
 is to be tried. The doctrine of venues is explained and eluci- 
 dated by Lord Mansfield^ in the case of Fabrigas v. Mos- 
 fijn,,{g) and in the note in Co. Lit. 125. a. n. 1. " There is a 
 *' substantial and a formal distinction as to the locality of trials. 
 " The substantial distinction with regai'd to matters arising 
 " ivit/mi the realm is where the proceeding is in rein., and where 
 " the cfTect of the judgment could not be had, if it were laid 
 " in a wrong place, as in the case of ejectment, where posses- 
 "• sion 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,(/z) So with re- 
 " gard to matters that arise out of the realm there is also a sub- 
 '* stantial distinction of locality, for there are some cases that 
 " arise out of the realm, which ought not to be tried any where 
 " but in the country where they arise ; as if two persons fight 
 *' in France., and both happening casually to be here, one should 
 " bring an action of assault against the other, it might be a doubt 
 '* Avhether such an action couid be maintained here ; because, 
 •' though it is not a ciiininal prosecution, it must be laid to be 
 »' against the peace of the king, but the breach of the peace is 
 j^ 269 " "''Ci'ely local, *ihough the trespass against the person istran- 
 
 " sitory.;/) So if an action were brought, relative to an estate 
 " in a foreign country, where the question was a matter of ti- 
 
 (e) 4 Esp. Rep. 7'2. 2 S;iund. 1. n. tion, N and title Pleader, C. 20. Bac. 
 
 1. 1 Stra. 038. I Wils. 39. .304. Cowp. Abr. Action, A. a. Vin. Abr. Trial, 
 
 456. Tidd's Prac. fid edit. 294. SOg. H. a. 2. 8:c. and title Place. 7 Co. 3. 
 
 (/) 3 Burr. 1241. Tidd's Prac (A) 7 T. R. .587, 588. Post, 283. 
 
 3d edit. 294. 4 Esp. Rep. 72. (2') Sed quart; the contra pacem is 
 
 {g) Cov.'p. 176, 177. And as to net traversable, see 2 Bl. Re£>. 1058» 
 
 ■vr-nuecin gnnoral, see Com. Dig. Ac- Vin. Abr. contra pacem. 
 
 JK^
 
 OF THE DECLARATION. 269 
 
 •> tie only, and not of damages, there might be a solid distinc- i^- ^'-^ P"^'^- 
 
 Sccondlv, th& 
 " lion of locality .(^') veuue. ' 
 
 « The formal distinction arises from the mode of trial ; for 
 
 " trials in Ejigland being by jury, and the kingdom beiiig di- 
 
 " vidcd into counties, and each county considered as a separate 
 
 " district or principality, it is absolutely necessary that there 
 
 "should be some county where the action is brought in parti- 
 
 " cular, that there may be a process to the sheriff of that 
 
 " county to bring a jury from thence to try it.(^) This mat- 
 
 •* ter 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 
 
 i)eing material ; as if an imprisonment be in Middlesex, it 
 • may be laid in iiurrey, and though proved to be done in Mid- 
 '■i dlesex., it does not at all prevent the plaintiflP from recover- 
 *' ing damages. I'hc place of transitory actions is never ma- 
 >■' terial, 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 * 270 
 '' the proper county. The parties upon sufficient ground have 
 " an opportunity of applying to the court in time to change the 
 « x>en«e, 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 occa- 
 " sions which make it absolutely necessary 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 action is gone, because it is such 
 " a variance between the deed and the declaration as makes it 
 <' appear to be a different instrument ; but the laAV has in that 
 » CLise invented a fiction, and has said, the party shall first set 
 ** out the desciiption truly, and then give a venue only for form, 
 
 ( .7) 1 Stra. C46. 4 T. K. 503. Sed ture to resort to abroad. Id. ibid. 6 
 fiuc'c if there be no courl of judiea- East, 599. 
 
 Q{,k]Ul 125. a. b.
 
 270 OF THE DECLARATION. 
 
 //. Its part.'^. a and for the sake of trial by a videlicet in the county of Mid- 
 \caua. ''' '^ " dlesex, or any other county." From these observations it ap- 
 pears that the points as to venues may be considered practically 
 ■with reference, 1st. To wliere, or in what county the venue is 
 to be laid ; 2dly. How, and in what parts of the declaration it is 
 to be stated; and Sdly. The consequences of mistake, and when 
 they are aided. * 
 
 1 St. The venue is either local or transitory ; if local, it musl 
 be laid, and the cause be tried in the county in which the injury 
 was really committed, or the defendant may demur when the ob- 
 * 271 jectibn appears on the record, or the plaintiff will be *nonsuited 
 on the trial ; but if transitory, the veiiue may be laid, and the 
 cause tried in any county, subject to its being changed by the 
 court in some cases, if not laid in the county where the cause 
 of action really arose. We will consider, when the venue is 
 local or transitory at common law, and when it is local by sta- 
 tute. 
 WTien the ve- When the cause of action could only have arisen in a panicu- 
 nnc IS local, jj^j. p^^-e or county, it is local, and the venue must be laid therein. 
 As in real actions, waste, quare bvfiedit or ejectment, for the re- 
 covery of the seisin or possession of land, or other real proper- 
 ty.(/) So actions though merely for damages, occasioned by 
 injuries to real property, are local ; as trespass, or case for nui- 
 sances or waste, &c. to houses, lands, watercourses, right of 
 common, ways, or other real property, unless there were some 
 contract between the parties on which to ground the action ;(m) 
 and if the land, &:c. be out of this kingdom, the plaintiff has no 
 remedy in the English courts, if there be a court of justice to 
 resort to where the land was situate ;(.?i) and when the parties 
 consent with leave of the court to try a local action in another 
 county, such consent should appear upon the rccord.(o) Where, 
 however, an injury has been committed in one county to land, 
 Sec. situate in another, or whenever the action is founded upon 
 
 (J) 4 T. R. 504. 2 Kl. Rep. 1070. (?;) 4T.R. 503. 1 Stra. G40. Coup 
 
 Com. Dig. Action, N. 7 T. R. 58r, 180. 6 East, 51)8, 599. 
 
 58S. Cowp. 176. 7 Co. 2. b. .S Lev. {o) Co. Lit. 125. b. 12G. a. n. 1. Sir 
 
 141. Bac. Abr. Actions, Local and T. Raym. 372. I Roll. Rep. 28. Com 
 
 Transitory, A. 2 East, 498, 499. Dig. Action, N. 11. 1 Wils. 2l'S.- 
 
 <m) M. ibid. Tidd's Prac. 3d «lit.'549.
 
 OF THE DECLARATION. ^272 
 
 two or more material *facts which took place in diHereiit coun- 77. Its fmru- 
 ties, the venue may be luicl in either///) Sotoudlr, the 
 
 In an action of debt, or in .'ici re facias on a recognisance of 
 bail by bill, and in an action of debt on a judgment of a court of 
 record, the venue must be laid in the county wiicre the record is ; 
 as in Middlesex, upon the judgment or re* ognisance of eiUier 
 of the superior courts at Westminster ;(y) and in scire facias 
 on a recognisance of bail by origitial in K. B. the venue may he 
 laid in Middlesex, though all the previous proceedings weie in 
 another county. (r) Upon a recognisance of bcdl, in C. P. the 
 venue may, in scire facias, be in the county where the bail-piece 
 teas taken, or in Middlesex. (s) But a scire facias on a judg- 
 ment, being only a continuation of the former suit, and not an 
 original proceeding, mu.^t l)e laid in the county wheie the venue 
 was first laid, the defendants being supposed to reside in that 
 county. (^) And when the action is at the suit ot anacimiiiistra- 
 tor, who has obtained administration in a peculiar diocese, the 
 venue should be laid within the sauie, though a mistake in the 
 last Ciise Can on;y be taken advantage of by special demurrer. (z/) 
 Debt for the arrears of a rent-charge against the pernor ot the 
 profits not being the original granior is loca^, the defendant being 
 chargeable in respect of his possession, *and not on the con- * 273 
 
 tract-Cx;) 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.(W) 
 
 In all actions for injuries ex delicto to the Jierson or to Jier- "Wlien the re- 
 , , . . , . , , nue is transi- 
 
 sonal property, the venue is m general transitory, and may be to,.y 
 
 laid in any county, thougii committed out of the jurisdiction of 
 
 (^) 7 Co. 1. 3 Loon. lit. 2 T. R. lion is not correct ; tlioiigli in some 
 
 238. 7 T. R. 5S3. Com. DIsj. Ac- dcpfree sanctioned by what fell from 
 
 tion, N. 3. 11. Mr. Justice BuUer, in .? T. 1{. .387. i*^ 
 
 (^) Tidd, 1033. Yin. Abr. Trial, is not aground of special demurrer. 
 
 H. a. 2. pi. 17. 11. m. 1'J5. Roll. Abr. 908. G. pi. 4. Garth. 373. 
 
 (>•) 5 East, 401. Selwyn, N. P. 678. 
 
 (s) 5 Kast, 462. n. b. Tidd, 1035. (r) Hob. 37. \in. Abr. lit. Trial, 
 
 (/) Tidd, 103.-.. n. V. II. a. 2. pi. 16. 
 
 (?0 1 Roll. Abr. 908. G. pi. 4. 3 (w) 2 Bl. Rep. 1068. 
 T. R. 387. 8 T. R. 407. This posi- 
 
 VoL. I. r 25 1
 
 273 OF THE DECLARATION. 
 
 II. fts pnriH. our courts,(,r) or of the king's dominions ;(i/) and this even in 
 
 StcaiuUy, the actions a£(ainst a member of parliament, &c.(r) Thus actions 
 venue. "^^ . . 
 
 for assaults, batteries, and false imprisonment,(c) and for words 
 
 and libels, (A) and for taking away or injuring personal proper- 
 ty,(c) and for escapes and false retvirns,(£/) and upon bail-^ 
 bonds,(t) are transitory. In general also actions founded upon 
 contracts are transitory, though made, and even stipulated to be 
 performed cut of the kingdom, for dtbitum et crjntractus su7il 
 nvllius loci.{X) Thus account, assumpsit, and covenant be- 
 tween the original parties to the deed, and debt, and detinue, 
 are in general transitoiy, subject to the courts changing the 
 ve?iue in some cases. (•,§■) The necessity tliat in a bailable ac- 
 *■ 274 tion by original in the King's Bench, the venue *do not vary 
 from the original writ, must also be kept in view. (A) In those 
 transitory actions also in which the court will change the •veinie 
 on the defendant's application, and where the plaintiff might 
 wish to bring it back again to the county where it was first 
 laid, upon the usual undertaking to give material evidence in 
 that county, it is necessary to lay the venue in the first instance 
 in the county in which such material evidence can be given. (z) 
 The venue in In an action upon a lease for non-payment of rent or other 
 ^tionson ea- j3,.gj^(,}.j of covenant, when the action is founded on the privity 
 of contract it is transitory^ and the venue may be laid in any 
 county ; but when the action is founded on ihe privity of estate .^ 
 it is locals and the venue must be laid in the county where the 
 estate lies. (7) These points may be considered as they arise ; 
 1st. Between the original parties to the lease ; 2dly. In the case 
 
 (.r) Cowp. 161. Com. Uig. tit. Ac- C/)Coii\. I)i;.j. Action, N, 12. 1 
 
 tioii, N. 12. S.iuiul. 74. 241. b, (Zi>\\\}. ISO. 1 
 
 0/) Id. ibid. 2 Bl. Rep. 105S. Stia. 612. Lord Kaym. 1352. 
 
 &i7(7»*/-e'Co\vp. 170. (^•) (,ilb. C. P. 84. I Saund. 74. 
 
 (r) 4 East, 102, IGJ. n. 2. "\\'Iion t!ic court will cliaiige 
 
 (ft) Cowp. 161. Go. Lit. 282. the venue, see Tidd's Prac. 3d ed, 543 
 
 (A) 1 T. li. 571. to 556. c. XX vi. 
 
 (c) Com. Dig-. Action, N. 12. (A) Ante, 246. 24'J. 
 
 Salk. 670. Vin. Abr. Trial, IL a. 2. \i) 6 East, 433, 4.34. 
 
 pi. 12. ( /■) As to the four different descrip- 
 
 (J) 1 Wils. 330. Salk. 670. 1 tions of privitie.s, and in general how- 
 East, 114. f:ir they affect the venue, see the ar- 
 
 (e) Fort. 3GG. Stra. 727. Lord gnment in 3 T. R. 394. Walker's 
 
 flavin. 1455. case, 3 Co. 23. And 1 Saund. 237 to 
 
 242. and the notes 5 and 6,
 
 OF THE DECLARATION. 274 
 
 ot an alienation of the estate of the lessor; and 3dly. Where ^i- It <i parts. 
 the estate of the lessee has been assigned. '^^.*:°'!'"^ ' ^^^ 
 
 1st. In an action of debt or covenant by the lessor against the 
 lessee., or by the lessee against the lessor, the action, being found- 
 ed on the vwcve privity of contract y\s transitory ^ and though the 
 land lie abroad, the action may be brought in England ,-(-X:) and 
 debt in the detinet only, by the lessor against the executor of 
 the lessee, is *transitory ; but if the action against the executor 
 be in the debet and detinet, he being charged as assignee, the ' 
 
 venue is local. (0 
 
 2dly. An action of covenant by the assignee of the reversion 
 against 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 opera- 
 tion of 32 Hen. VIII. c. 34.(;rt) winch transfers the privity of 
 contract with respect to such covenants, to and against the as- 
 signee of the lessor, in the same plight as the lessor had them 
 against the lessee, or the lessee against the lessor.(«) But in 
 debt by the assignee(o) or (levisce(/i) of the lessor against the 
 lessee, which is sustainable at common law, and is founded on 
 the privity of estate, the action is local. 
 
 3dly. If an action of debt or covenant be brought by the les- 
 sor,C</) or his personal representatives,(r) or by the grantee of 
 the reversion(«) against the assignee of the lessee, or the execu- 
 tor of the lessee in the debet and detinet,(;) the venue is local, 
 and must he laid in the county *where the land lies \{u) and if ^. q^/- 
 the land be out of England, no action can be supported in this 
 
 {k) 1 Saiiiid. 241. b. „. G. 7 Co. '2. a. {<)) 1 Sauncl. 238. '241. c. n. C. Cro. 
 
 2Slra. 7/6. 2.Salk. 651. 3 Lev. 154. Car. 183. I Wils. 165. Vin. Abr. 
 
 6 Mod. 194. 2 East, .179. Bac. Abr. Trial, H. a. 2. pi. 20. 
 
 lit. Actions local and transitory. A. a. (/») Sir W. Jones, 53. \'m. Abr 
 
 (/) Gilb. C. P. 91. Gill). Uei.t, 403. Trial, II. a. 2. 
 
 2. Lev. 80. Vin. Abr. tit. Trial, II. a. (7) 2 E.ast, 579, 5S0. Cartl). 182. 
 
 2. pi. 22. 6 Mod. 194. 7 T. R. 583. 1 Sliov. 
 
 (m) I Saund. "2^7. 241. b. n. C. 190. 199. 
 
 Carth. 183. 1 Wils. 165. 3 T. 11. (r) Latih. 197. 
 
 394. 1 Show. 199. Vin. .\hr. Trial, (.!) 1 Saiind. 241. c. n. 6. 7 T. P, 
 
 H. a. \A. 20. Privies in bloo<l, as llie 5P,3. 2 P'.ast, 580. 1 Show. 190 
 
 hoir of lessor, miijjbt sue in covenant 199. Carth. 182. 3 Mod. S'3C). l 
 
 at coiumoii law. 3 T. R. .395. Salk. 80. 
 
 («) Id. ibid. 1 Saiiiid. 237- 241. b. (/) Supra, note (/). 3 Kcb. .TS. 
 
 ■n. C. 3 T. R. iOl, 402, (u) 2 East, 580,
 
 276 OF THE DECLARATION'. 
 
 //. Its parts, country, (xj) The action at the suit of the lessor against theas- 
 
 Sccoiidly, the si:^nee of the lessee was eiven by the common law, und was 
 veime. . o j 
 
 local in respect of the /irivity q{ estate., the privity of contract being 
 
 destroyed by the assip;nment ; and the assignee of the rever- 
 sion must also sue the assignee of the term in the county 
 where the land lies, because the statute 32 Hen. VIII. transfers 
 the privity of contract to the assignee in the same manner as 
 the lessor had it.(w) I'or the same reason, covenant by the as- 
 signee of the lessee against the lessor, or the grantee of the 
 reversion, is local, for it lies at the common law, in respect of 
 the privity of estate, which is always local. (x) 
 Venue -tthpn The Statute 21 Jac. I. c 4. s. 2.(j/) enacts, that in "all in- 
 tute. ^ ■*' " formations, declarations, Sec. for any offence against any fienal 
 " statute.) whether on the behalf of the king or any other person, 
 " the offence shall be laid, and alleged to havt- been comniit- 
 " ted, in the county wliere such offence was in truth commit- 
 " ted, and not elsewhere, or the defendant, upon the general 
 " issue, shall be found not guilty ;" and in a penal action for 
 the omission of u local duty, prescribed by a statute, the ver.ue 
 is local (z) Lord HAt's opinion appears to have been ihat 
 ■*■ ^n ^^'^^ statute extended to subse'./uent statutes, (a) but from *several 
 decisions, (i5i) and from the circumstance of tlie legislature hav- 
 ing introduced an express similar clause in subsequent penal 
 acts, passed even in the same session as the above statute, this 
 opinion appears to be erroneous. (c) It therefore follows, that 
 in penal actions, founded on statutes passed since the 21st Jac. 
 L c. 4. the venue is transitory, as at common law, unless other- 
 wise directed by the particular act, as in the case of usury, &c. 
 Upon the common lav/ principle, where there are two material 
 
 (f) t Show. 190. 109. Bac. Al^r. (6) Parker's Rep. 186. Andr. 25. 
 
 Acuons local and transitory, A. a. and 2 Stra. 1081. 1 Salk. ^y7'2, 373. 5 Mod. 
 
 Bee4T. R. 503. Ante, 269. n. (./). 425. Carth. 465. Ld. Raym. 370. 
 
 (to) I Raund. 241. c. I Show. 199. Com. Dig. tit. Action, N. 10. Bac. 
 
 (x) 5 Co. 17. a. F. N. K. 146. 1 Abr. tit Action, qui tarn, C. 1 Saund. 
 
 Saund. 241. c. n. 6. 312 c. in the notes, and see the con- 
 
 (r) And see 31 Eiiz. c. 5. st ruction on the 3d .Tac. I. c. 8. 2 
 
 (:) 4 E:;st, 393. "" Eai^*, 359. And Selwyn, N. P. 562. n. 
 
 (a) Ld. Raym. 373. P.irkcr's Rep. 117. 3 Anstr. 871. 
 186. 2 Sdvvyn, N. P. 562. n. 117. (c) See 2lJnc. I. c.l7. 12 Ann. 
 
 Bull. N. P. 106 Tidd's Practice, stat. 2. c. 16. Andr. 25. 
 Jd cd. 374.
 
 OF THE DECLARATION. 277 
 
 facts to constitute the offence against a penal statute, and one U- /"■ parts. 
 happened in one courfty, and the other in another county, the ^^"if^"'"-^ ' ^'^'^ 
 vntue may be Udd in either ; as where a usurious contract has 
 been made in London^ and the usurious interest taken In Mid- 
 dlesext or vice versa ;{d) and this statute does not afi'cct a reme- 
 dy given to the party grieved. 
 
 Some actions against particular persons, which would other- 
 wise be transitory, must, by different statutes, be laid in the 
 county where facts were committed, or the plaintiff will be 
 nonsuited ; as actions upon the case or tres/iass against justices 
 of the peace, mayors, or bailiffs of cities or towns corporate, 
 headboroughs, port-reves, cor.stables, tithing-men, church- 
 wardens. Sec. or other persons acting in their aid and assistance, 
 or by their command, for any thing done in their official *ca- ^ 278 
 pacity :(c) and actions against any person for any thing done 
 by him as an officer of the excise,^/) or custonis.,(g) or 
 against any other person acting in his aid, in execution or by 
 reason of his office. And by the statute 42 Geo. III. c. 85. 9. 
 6. the provisions of the statute 2 I Jac. I. c. 12. with regard to 
 the venue., Sec. are extended to all persons having, holding, or 
 exercising, or being employed in amj public employme7it, or 
 any office, station, or capacity, either civil or military, either 
 in or out of the kingdom ; and who under and by virtue, and 
 in pursuance of any act or acts of p.u-rKaiient, Sec. have by 
 virtue of any such employment. Sec. power or authority t 
 commit persons to safe custody : And all such persons having 
 such power and authority as aforesaid, shall have and be en- 
 titled to all the piivileges, benefits, and advantages, given by 
 the provisions of the said act, as fully and effectually to all in- 
 tents and purposes, as if they had been specially named there- 
 in. Provided always, that when any action, bilh plaint, or suit, 
 upon the case, trespass, battery, or .false imprisonment, shall 
 be brought against any such person as is in this act described 
 as aforesaid, in this kingdom, for or upon any act, mutter or 
 
 {d) 2 T. Tl. 238. 7 Co. 1. 7 T. (/) 23 Geo. III. c. 70. s. 34. 
 
 R. 58.3. 2 B. k P. 381. Ante, (^) 24 Geo. HI. scss. 2. c. 47. s. 55. 
 
 •271, 272. and see 28 Geo, III. c. 37. s. 23. 
 
 ^) 21 Jac J. f-. 12. s. 5,
 
 278 ^f '^'^11' DECLARATION. 
 
 11. Its pari!: thinn- done oul of the kingdom, it shall be lawful for the plain- 
 Socondlv, the tiff bringing; the same, to lay such act, m'^itter, or thing to have 
 been done in licstinpister, or ui any county where the person 
 against whom any such action, bill, plaint, or suit, shall be 
 brouglit, shall then reside. But the vfnu^ in an action against 
 *' 279 ^ constable, 8cc. for an act *not done in the execution of his 
 office, may be laid in any county. (A) 
 
 So actions against persons acting under the acts relating to 
 highioays^{i) or iurn/iikes,(j) or the m/lilia,{k) and various 
 other acts are local by express provision. And so by the 
 Jl'ilch judicature act, if a transitory cause of action arising in 
 Wales., be brougl)t in any court out of Wales., and the -venue be 
 laid out of the principality, and the plaintiff do not recover 10/. 
 a judgment of nonsuit may be entered against him.(/) 
 Mode of sta- The venue is thus stated in the margin of the declaration, 
 n'ue. '^ *^' " ^tiddlesex, to wit."(?n) Such venue m the margin will 
 aid but not prejudice, and in civil cases, if the name of a. filace 
 on/ij, and no county, or a wrong county be stated in the body 
 of the declaration, it will suffice, because the place is always 
 construed to refer to the county in the margin, though another 
 county has been mentioned ; and on the other hand, whei'e the 
 proper venue is laid in the body of the declaration, the county 
 in the margin will not vitiate it.(/) But in crimiyial cases the 
 rule is more strict, and though the county in the margin, when 
 * 280 cx/ires.sly referred to, *is sufficient, yet it must either be named 
 in the body, or so exjiressly referred to in all cases. (w) 
 
 In stating in the body of the declaration, the venue or place 
 where the facts have occun'ed, it is usual to name a parish, 
 town, or hamlet, or other place (not being a hundred) as well 
 
 (A) 1 Stra. UG. 3 Rurr. ir4il. 2 to signify the county, but was only 
 
 Esp. Uep. 5 1'i. 3 Esp. Rup. 'J-2G. 5 a denotation of each section or para- 
 
 T. 11. 1, '2. 4 T. R. 535. graph in the record. Cas. temp. 
 
 (i) 13(ieo. III. c. 78. s. 81. Hardw. .344. In in(lictments,the words 
 
 (./) 13 Geo. III. c. 84. s. 85. " to wit" are frequently omitted. 
 
 (A-) 4'2 Geo. 111. c. <J0. s. 178. (Z) I Saund. 30S. n. 1. 3 Wils. ,339. 
 
 (/) 13 Geo. III. c. 51. 1 New Rep. 3 T. R. 387. -2 Bl. Rep. 847. Rep. 
 
 21)7. temp. Hardw. 343. Barnes, 483. 
 
 (jh) Lord Ilardwieke was of opinion Com. Di.^. Pleader, C. 20. 
 that the word ss, in the margin of the (?») 1 Saund. 308. n. 1. 2. Nolan's 
 
 declaration, was not originally meant Poor Law, 144. 2 East, 66.
 
 OF THE DECLARATION. 280 
 
 as the county. («) In Lovd-m it was formerly necessary, and -W. Tin parts. 
 is Still the practice to state some parish and ward, though in ^....j^^. • 
 other places a city or town, without naming any particular pa- 
 rish, was sufficient.(o) In criminal cases it is still necessary 
 to name some pai ish or town, Sec. as well as the county, and 
 the statement in an indictment that a party committed perjury 
 at Guildhall in London is insufficient.(/0 But in civil actions 
 in the superior courts, as the jury is no longer de vicineto, the 
 statement of a county alone may be sufficient,^!/) unless where 
 a local description is necessary, as in replevin, 6{.c.(r) And 
 this even on penal statutcs,(.v) unless part of the penalty be 
 given to the poor of tl.c parish in which the offence was com- 
 mitted, when the name of the parish is material. (?) 
 
 In inferior courts, unless in the courts of the counties pala- 
 tine and a few other courts it is necessary, in addition to the 
 statement of the county as a -venue.) to aver, that every mate- 
 rial fact took place within the *jurisdiction of the court : as in * 281 
 assumji&it, as well that the promise or contract was made, as 
 that the goods were sold, or the money had and received, &c. 
 ivithin the jurisdiction of the court, and if the allegation be 
 omitted, the declaration will be insufficient, even after ver- 
 dict ;(«) but as to such matters as are stated only in aggrava- 
 tion of damages, and might be omitted, it is not necessary to 
 allege that the same arose within the jurisdiction. (x-) 
 
 When a transitory matter has occurred abroad, it may in 
 general be stated to have occurred in any Engli&h county, with- 
 out noticing the place where it really happened ; but if the real 
 place abroad be stated, (which is necessary when a deed or bill 
 of exchange or other instrument bears dale there,) it should be 
 shewn under a scilicet, that it happened in an English county, 
 fis for instance, " in Minorca, to wit, at M'cst minster, in the 
 
 00 Co. Lit. 1'25. a. n. 2. (s) Co. Lit. 125. b. 24 Geo. IL c. 
 
 (o) Cio.J:ic. 30r. Leach, C. L. IS. 3 Esp. Rep. 219. 2 Sauiid. 370. 
 
 9-'"- 1). 9. V.'illcs, 09. n. a. 
 
 {{>) Lcacli, C. L. 928. Co. Lit. (<) 3 Esp. Rep. 219. 
 
 1-5- ^- "• ■2- 0') t Saui.d. 74. n. L 1 T. R. 151 . 
 
 (7) Co. Lit. 125. b. n. 2. Viii. Abr. 8 T. R. 127. Cro. J.ic. 502. 6 T. R. 
 
 Trial, H. a. fi. 2 East, 501. Cro. 7C4. 
 
 Eliz. 73-2. 1 Saimd. 8. a. 2 H. Rl. (r) 1 Saund. ?4. n. 1. Bac. Abr 
 
 }G1. Liitw. 2.57. Pleas, E.l. 
 
 (r) 2 East, 501. 1 Saund. 347. n. ;.
 
 281 OF THE DECLARATION. 
 
 IT. Itn parts, co^^ty of Middlesex ." (iv) And this is advisable even in cases 
 
 Secondly, the of bills of exchange drawn in this country, and dated at a par- 
 venue. ..• 1 T ^ ^ T • » p 1 
 
 ticuiar place. (wj In statuig a matter of record, no venue 
 
 seems necessary, as the record must be presumed to be where 
 
 the court is ;(x) but in pleading an Irish judgment it may be 
 
 otherwise. (i/) 
 
 In general the venue should be laid distinctly to every mate- 
 rial traversable fact,(z) and formerly the omission was consider- 
 ed fatal, though issue were taken upon another point. (a) But 
 ^ 282 *even in a local action, as in case for an injury to a watercourse 
 no precise local description of the nuisance complained of is 
 necessary, and provided the county be properly stated, it is suf- 
 ficient, except in replevin. (<J) And where there are several 
 facts, yet if the sentences in which they are stated are coupled 
 with the conjunction '■'■ and" the {^r^ivcnue will apply to all the 
 facts. (c) So the performance of a contract will be inferred to 
 have been at the place where it was entered into<((/) though it 
 is usual to repeat the venue to each averment. (e) No venue, 
 however, need be laid to matter of inducement, when not tru' 
 vcrsablc, and which consequently cannot be tried^{f) nor is a 
 •wf;77/r necessary in general to a negative allegation. (5*) 
 
 Where a parish is merely stated as a venue, the cause of ac- 
 tion, though proved to have arisen in a different place, will 
 sustain the declaration •,(g-) as in debt on the game laws, or in 
 an action of hue and cry against the hundred ;(/j) but when part 
 of a penalty is given to the poor of the parish, the mmie of the 
 parish is matter of substance, and the offence must necessarily 
 be laid and proved to have taken place therein. (?) So in an ac- 
 
 (7i') Cowp. iro. irr, S. Ante, -270. (c) 1 SaunJ, 229. n. 2. Ci-o. .Tac. 
 
 7T. R. 243. 1 Saund. 74. n. 2. 5 T. 443. 2 B. k P. 156, 157. Com. Dig, 
 
 K. f.lfi. tit. Pleader, C. 20. Hard.,61. Lutw. 
 
 (vy) Chitly on Bills of Exchange, '2d 237. Ante, 250. 2 Hale's P. C. 179. 
 
 edit. 322. n. c. (d) Cm. Eliz. 880. Com. Dig. tit. 
 
 (,r) 1 Vent. 246. ' Pleader, C. 20. 
 
 0/) 5 East, 473. (<■) Com. Dig. tit. Pleader, C. 20. 
 
 (j) Corn. Dig. tit. Pleader, C. 20. (/) Plowd. 191. Com. Dig. tit 
 
 5 T. R. 620. Ante, 258. 2 Hale's Pleader, C. 20. 2 Stra. 817. 
 
 P. C. 179. (5) Ante, 259. n. i. 5 T. R. 616. 
 
 (fj) 2 Leon. 22. (s) 2 East, 503. 
 
 (6) 2 E.-ist, !50.3. Pogt, vol. 2. 364. (A) Id. ibid. 3 Esp. Rep. 219. i? 
 
 u. 0. Sed qiiterSf see Co. Lit. 125. b. Saund. 376. n. 9. 
 
 (0 Id. ibid. Peake's L. E. 199.
 
 OF THE DECLARATION'. :282 
 
 *.ior., though not local, if the situuiion of land, or othe? real JT. lis parts. 
 
 ,' -, , . , * •! ^ 1 • . ■ Sn-cmliv, the 
 
 property be described, tnough *unnece^^stu•liy, to be smi.ite in ycime. " 
 
 a particular parisii or place, the pluiniiH' will faii on the trial if * 283 
 
 there be a mistake. (y) But if a fact be stated to have occurred 
 
 '« at or near" a particular place, the mistake iviay not be so mti- 
 
 terial ;(^) and when it is doubtful whether the place where a 
 
 navigation, Sec. is alleged to lie, is stated in the declaration as a 
 
 veniiCy or as a local description, it will be referred merely to 
 
 the venue and need not be proved to be at such place U) The 
 
 mode of describing the place or vmuc in trespass, replevin, 
 
 and other particular actions, is stated in the notes to the several 
 
 precedents in such actions. (?«) 
 
 At common law. if it appeared u/wn the record^ that the con- ronscfinerr- 
 tract or cause of action arose in a county different from that in Jif vt'iila'^ antl 
 wiiichthe x'^«?if was laid, it was error.C^O But by 16 and 17 when aided. 
 Car, II. c. 8. " After a A'crdict. judgment shall not be stayed 
 ♦' or reversed, for that there is no right venue, so as the cause 
 " were tried by a jury of the proper county, or place where 
 " the action is laid ;" and this statute extends not only to those 
 cases where there is a wrong venue in the p roper county, but 
 also to those where the cause has been improperly tried in a 
 wrong county, and whether the objection appear on the record 
 or not (o) Aiul the stat. 4 Ann. c. 16, s. 2. extends this pro- 
 vi.sion to a judgment by confession *nil (licit, ov non .sum infor- vjf 284 
 
 matus.{/i) And the same provision is extended to penal actions 
 by the 4 Geo. II. c. 26. (y) But as inferior courts, not of re- 
 cord, are not included in these acts, a declaration in the couniv 
 jurt, oniiiting the necessary allegation as to the subject matter 
 yf the action having arisen within the jurisciiciion, will still bo 
 
 (./) 1 Esp. Kcp. '2r.3. 3 R. k P. {<,) I .Simud. 247. n. .3. 7 T. M. 
 
 e-81. 2 Lev. 5,?4. Salk. 4.'i'2. Bac. 58.5. 2 East, 580. 2 Suund. 5. g. in 
 
 ,\br. TrcsiJiiss, K. Stf;i. 59.>. G East, notes. 
 
 55'2. ■ (/j) 2 Com. «ep. 555. Bar.ics, 
 
 (/:•) Peake's T,. E. K'D. 4 T. 11. 4S.i. Liitw. '2.57. 
 
 <S. .ifii. 1 R. St l>. CMS. (7) Willes, 5yo. GOI. Tiil.l's Pr.i(„ 
 
 (/) '2 East, 497. fxl edit. S.3!), 840. r>ut see 4 East, ?.K7, 
 
 (;«) Post, vol. 2. 1 Saund. ;ii~. n. 1. .'588. v.hero the t'civ'/c^ was set aside, 
 
 (.•() Com. Dig. Ut. Aeiioii, X. C. 1. lI)onp;li no ohjcoiion taken at ^.'■. P. 
 
 Sauiul. 74. n. 2. ante, 2S0. n. {js) («). 
 
 \^oi.. I. r 2r> 1
 
 284 OF THE DECLARATION, 
 
 TT. Its parts, insufficient, even after verdict.(r) Hence it follows, that even 
 Secondly, tiie jjj local and penal actions in the su/ierior Qouris, the only modes 
 of objecling to the vcjme, are by demurrer,(s) or at the trial as a 
 ground of nonsuit,(/) except in the action of ejectment, in which 
 also a difficulty would arise with respect to the execution, be- 
 cause the sheriff of one county cannot deliver tne possession of 
 land in another.(«) In luca/ actions, if the venue be laid in the 
 wrong county, and the objection appear upon the record, it is clear 
 that the defendant may demzir ;{u) and if it do not appear on re- 
 cord, may, under the general issue, avail himself of the objec- 
 tion at the trial as the ground of nonsuit ;{v) as in trespass or 
 ejectment, on the plea of not guilty,(w) or in replevin, on the 
 pleaof ?.'on cefnt.{^') And even in transitory actions an unne- 
 cessary precise description of local situation may, if erroneous, 
 ^' 285 l^e fatal on the trial ;(?/) though *\vhere the description is rather 
 by way oi venue it will be otherwise.Cz) And if a local descri/i- 
 tiony or venue^ when necessary, be omitted, it is not matter of 
 nonsuit, but of demurrer, or arrest of judgment ;(a) and by 
 pleading over to the merits, any formal defect in the venue is 
 aided ;(6) and in transitoj-y actions the omission of a venue is 
 aided at common law by a judgment by default, because the de- 
 fendant thereby admits that there is nothing to try,(c) and any 
 objection to the mode in which the venue is stated, must be 
 taken by demurrer. (c?) 
 
 ThJrfllr, the What is termed the commencement of the declaration follows 
 i-omineiice- ^, . . . , , , . . , 
 
 meut the venue m the margm, and precedes the more circumstantial 
 
 statement of the cause of action. It contains a statement, 1st* 
 
 Of the names of the parties to the suit, and if they sue or be 
 
 sued in another right, or in a political capacity, (as executors, 
 
 assignees, or cjui tarn, Sec.) of the character or right in respect 
 
 ()•) Ante, 280. 1 T. R. 151. I (x) I Saund. 34". n. 1. Post, vol. 
 
 Saund. 74. n. I. 2. 364. n. (e). ace. 2 Gilb. Rep. 
 
 (s) 1 Wils. 165. 166. 2 Wils. 355. semb. contra. 
 
 (0 7T. R. 588. 2 East, 580. Covp. {ij) Ante, 283. n. {j). 
 
 410. 2 Bl. 1033. (c) Ante, 283. n. 1. 
 
 {n) 7 T. R. 587. 588. Cowp. 170. (n) 2 East, 499. 2 Wils. 354. Post, 
 
 Ante, 261. vol. 2. 364. n. (e). 
 
 (?0 1 Saund. 241. c. Cavtli. 182. (/>) 2 Ld. Raym. 1039. Dyer, 15. 
 
 7 T. R. 5S8. 2 Rl. Rep. 1070. 3 T. R. a. Com. Dig. Pleader, 85. 3 T. R. 
 
 387. 1 Wils. 165. 387. Post, vol. 2. 354. n. {e). 
 
 iy) Supra, note (i). 1 Sid. 287. (c) Lutw. 237. Cro. EUz. 880. 
 
 \iv) Id. ibid. Stra. 595. {d) 3 T. R. 387,
 
 OF THE DECLARATION. 285 
 
 of which they are parties to the suit. 2dly. Of the 7node in //. /cv paints. 
 
 which the defendant has been brought into court; and, 3dly. A Thirdly, the 
 
 _ c'lmraeuce- 
 hrief recital of the /brm of action to be proceeded in. It is mcnt. 
 
 obvious that, independently of express regulation or precedent, 
 
 some introduction to the substantial statement of the cause of 
 
 action would be necessary, and the commencement adopted in 
 
 practice is useful, as pointing out that the defendant is duly in 
 
 court to answer the complaint, and concisely intimating tl)e 
 
 character in which the parties sue or are sued, and the *nature * 23G 
 
 of the action, by which the parties interested in the pleadings 
 
 arc enabled more readily to direct their attention to the subse- 
 
 ffuent parts of the declaration. (t/) 
 
 When the dfftndaiit has been arretted or served with process 
 by a ivrong 7xame^ the plaintiff may declare against him by hie 
 right name, whether he has appeared or not, and though the 
 plaintiff has entered an appearance according to the statute. (e) 
 In such case in the King's Bench, it is usual to state the fact 
 thus : — " to wit, A B complains of C Z), arrested (or if not 
 " bailable, served with process) by the name of E F, being in 
 *^ the custody," &c. And in the court of C. P. the declara- 
 tion runs, " C D, arrested by the name of E F, was attached 
 " to answer ^ .S of a plea," &c. and in each court in all sub- 
 sequent parts of the declaration, the real name only is to be in* 
 serted. The words arrested or served ivith process appear to be 
 preferable to the word sued.{/) If the plaintiff's name be 
 mistaken in the process, the mistake may be aided in like man- 
 ner. (,§■) It is not necessary in any case to state in the declara" 
 tion the addition of the defendant, either of place or degree, 
 for the statute of additions does not extend to declariitions.^/i) 
 
 In the King's Bench in actions by bill., against a person not 
 privileged, whether he be in the actual or su/i/iosed custody of 
 the marshal, the declaration (except in Middlesex when the 
 •allegation, as to the supposed custody, is unnecessary ;(f) be- ^ 287 
 gins by stating — " to wit, A B complains of C Z), being in 
 
 {(I) 1 Sauml. 318, n. 3. Ill, 112. C (/) Ante, 251. 1 B 2t P. 40. S 
 
 T. R. 130. Anslr. 935. 
 
 (e) Ante, 250. 3 East, l6r. aec. (/i) 3 B. & P. 395. Com. Dig. 
 
 3T. R. 611. co«r. Ti.l(i, f>8: 1 R, Pleader, C. 9. 2 E<;p Rep. 727 -• 
 
 k P. 105. 647, 648. Ante, 247. 
 
 (/) I B 8; P. 647. (i) Dyer, 11« ii
 
 287 OF THE DECLARATION. 
 
 11. lis parts. " the custody of the marshal of the marshulsca of our loi'd ih^ 
 rinntiy, Uie u ^i^p- before the kine himself, of a nlfea of trespass on the 
 ■""■■Jit, " case, 8cc. (or au thr form of nclioii nun/ be :) For that where- 
 
 " as," £cc.(y) and a biil a;^ainst an actual prisoner in the cus- 
 tody of the marshal, filed in vacation as of the preceding term, 
 cont.iins a sjjccial memorandum. (A-) It was enacted by the 4 
 and 5 Jl'illiatn and Mary, c. 21. s. 3. that " in all declarations 
 " as^aiiist a jirhsoncr detained in prison by virtue of any writ 
 " or process to I^e issued out of the Cuiirt of Kbig*s Bench, it 
 " shall be alleged in cuniudy of ivhat shcrijf, bailiff, or steward 
 " of any franchise, such prisoner shall be at the time of such 
 " declaration, by virtue of tlic process of the said court, 
 " at the suit of the plaintiffs; which allegation shall be as 
 " good and effectual as if such prisoner were in the custody 
 " of the marshal." This statute does not extend to proceed- 
 ings by origi?ial, or in the Common Pleas, or Exchequer, and, 
 therefore, the above allegation is only necessary when the plain- 
 tiff proceeds upon a bill of Middlesex.) or latitat, or by attach- 
 ment of privilege ; and if the cause of action be not biiilable, 
 the same plainiiff, or a third person, may in K. B. proceed 
 against tiie prisoner as if he were at large.(/) In cases within 
 * 288 ^"^^^ '"'''^' ^^ '■^''^ declarulion omit *lhe requisites, the defendant 
 
 may be discharged out of custody, or may demur generally. (?/;) 
 In the King's Bench by original, the commencement of the 
 declaration, with the exception of the name of the court at the 
 top, is in general similar to that in the Conunon Picas against 
 persons not priviieued ; and which in aa&umjisit, case, and 
 trover, runs as follows : — '' to wit, C D was attached to answer 
 " ^ jB of a plea of trespass on the case. Sec. ror as the form of 
 *' action may be ;) and thereupon the said J B, by £ l\ his at- 
 <' lorney, complains for tliat whereas," Scc.i,«) The defend- 
 
 (.y) 3 B. k P. 309. Com. D;- lit. Tiikl's Prnc. 3il edit. .311. 1 T. R 
 
 piciidcr, C. S. .See tlic foj-ni, ShfCt of VyZ. See llie form, Sheet of funm, 
 
 forms. and post, vol. 2. 2. 
 
 {k) Ante, 2^2. 8 T. R. 043. 2 (w) 1 Wils. U'J. SLd.Raj-m. 1.362. 
 
 Saund. 1. u. 1. See the I'oriu, Sheet Com. Dig. tit. Pleader, C. 8. See 
 
 of forms. vol. 2. 2. 
 
 • (I) imp K. P.. fits. GUi edit.— (?() 1 Suuiid. 318. 2Snuud. 1. n- 1-
 
 OF THE DECLARATION", 28B 
 
 unl'b luldilion of abode or .degree, ought not to be inserted, (o) Jl. Its parts. 
 uiid the st:itcmcnt thut the nlaiiitiiV complains by more than one T'"i-'ily, the 
 iittoriicy, would be improper.(/2) And in the Common Pleus, mtui. 
 or by original in K. B. it would be incorrect to begin the de- 
 claration wiih a (jucrltury as in the King's Bench by bil].(</) 
 
 With respect to the first piirt of this form, it is observable 
 thut in actions of «.?s7/M2/2«7, case., trespass^ ejectment^ Sec. where 
 the original was an attuchmcnt^ the commencement of the de- 
 claration should state, that the defendant was attached ; and in 
 actions of account, covenant, debt, deiuiue, annuity, and re- 
 plevin, where the original is a aunnnons-, the declaration should 
 state, that the defendant was sumvioned to answer.(r) But for- 
 merly when the declaration stated that the defendant was .iu7n- 
 moned^ instead of attached, or -vice versa, the defendant could 
 not demur without craving *oyer of the original, and setting it * 289 
 
 forth in order to shew that it did not warrant the declaration ;{ii) 
 and as the defendant cannot now have oyer of the writ, this 
 technical objection is no longer available. C^) And in general 
 the recital, or reference to the writ, in the commencenient of 
 the declaration, is not considered as any part of the declaration, 
 and consequently a mistake therein is no groiuid of demur- 
 rer, (k) 
 
 Anciently it \vas the practice in all actions founded on an 
 original writ, to repeat the whole writ in the commencement 
 of the declaration ; and it is said that when the pleadings were 
 ore (enia; the writ being returned, and the parties having ap- 
 peared, the counter read the writ to the court, and then men- 
 tioned the time, place, and circumstances, and the particular 
 damage accrued to the plaintiff; and if a material variance ap- 
 peared between the writ and declaration, the defendant might 
 have taken advantage of it, either by motion in arrest of judg- 
 ment, writ of error, plea in abatement, or demurrer. (xO But 
 
 (o) Ante, 24r. 2Sr,. n. Ii. (t) 1 Rr,un«l. .SIS. a. Doug. 2'2S.— 
 
 (/>) 4 East, 195. Tidd, ;>90, 391. 1 II. & P. 64r.. 
 *l<-''l't. (ii) 2BI. Ucj). S48. Ld. Raym 
 
 (7) Com. Di<^. tit. Plo.ider, C. 11. 003. 1 fl. IJI. •2M\ 
 
 (r) Com. 1% tit. Pleader, C. 12. (rO 1 B. k P. 36r. Gilb. C P. 4r. 
 
 (») I Saund. 318. I H. IJl. 250. 2 Wils .^94. 1 Sniind. .318. «. 3 — 
 
 L<1. Rayra 903. Com. Dij;. Pleader, C 12.
 
 289 <^->F THE DECLARATION. 
 
 II. Ita parts, this praclicc was altered in some actions by a rule of the court 
 Thirdly, the of C. P. A. D. 1 654, by which it was ordered that in future, de- 
 
 comnicato- 
 
 meut. clarations in actions on the case, and on general statutes, other 
 
 than debt, should not repeat the original writ, but only the na- 
 ture 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 
 
 ^ 290 trespass and contempt against *thc form of the statute. (f) And 
 though it is stiil the practice in a declaration in trespass vi et 
 armis in the Common Pleas, to set forth the supposed writ,(w) 
 it would probably now be deemed sufficient merely to state, 
 that the defendant was attached to answer the plaintiff " in a 
 " plea of trespass ;" at least this was held sufficient on a gene- 
 ral demurrer, as long ago as the 2d of William and Mary ;{x') 
 and now it would probably be held good on special demurrer, 
 for this short recital is intended only as an intimation to the 
 court of the nature of the action. (i/) 
 
 When it may be doubtful from the other parts of the de- 
 claration, what was the intended form of action, the statement 
 in the memorandum may be decisive ;(2) and when in trespass, 
 the supposed writ is recited, it is considered as part of the de- 
 claration, so that if it contain the words vi et armis, it will aid 
 the omission in the count part.(^a) The omission in the Com- 
 mon Pleas of the words, " and thereupon the said A B, by 
 ^' E F, his attorney, complains," £cc. though untechnical, is not 
 demurrable. (({i) 'Where one of several defendants has been 
 outlawed upon an original writ in either of the courts, the de- 
 claration should in the commencement state the outlawry in the 
 particular suit.(c) And where one of several plaintiffs or de- 
 
 "* 291 fendants dies after the issuing of *the writ, and before decla- 
 ration, the commencement should suggest such death. (<i) 
 
 (^•) ISaiind. 318. n. 3. 2 Wu-=. (z) 6T. R^130. 
 
 105. 2 Saimd. 570. II. t). Com. Dit;. (u) Lutw. 1509. Com. Dig. tit. 
 
 Action on tiie Case, C. 2. 1 B. h. \\ Pleader, C. 12. 2 .Stra. 1023. 
 
 36r. {b) 1 B. & P. 306. 
 
 {-.v) See the forms, po.st, vol. 2. (c) 3 East, 144. I Wils. 78. 1 
 
 309, 370. East, 133. See the form, vol. 2. p. 3. 
 
 {x) Carth. 108. (</) 8 and 9 Wm. III. c. 11. s. T. 
 
 {ii) 1 Saui.d. 318. n. 3. Com. Dig. 1 Burr. cdo. See the Sheet of form' 
 Ht IJiender, C. 9. 11, 12.
 
 OF THE DECLARATION. 291 
 
 In the Exchequer, rtie commencement, after stating the //. Its partu. 
 title of the court and term, runs thus : — "- to wit, A /?, a debt- Thirdly, the 
 «' or of our Lord the King, cometh before the Barons of his i^tnt 
 " Majesty's Exchequer, on the day 
 
 nof {the return day of the firocess) in this same 
 
 " term, by E F, his attorney, and complains by bill agains*: 
 " C Di present here in court the same day, of a plea of trespass: 
 " on the case, £cc. For that whereas," Ss;c. 
 
 In suits by infants, or by or against assignees, executors, al* 
 tornies, Sec. the commencement varies from the above forms. 
 Infants are stated to sue by guardian, ov fn'ochcin ami.{e) The 
 representative character of assignees and executors, should be 
 stated in the commencement, tliough it will suffice if it appeav 
 in the other parts of the declaration ;{/) and in actions of debt 
 by or against executors or administrators, in that character: 
 the words " onves to" must be omitted in the commence- 
 ment ;(§•) but assignees of a bankrupt may sue in the debet -dnd 
 detinet.Qi) An executor dc son tort is stated to be executor of 
 the last will and testament of the deceased, the same as against 
 u rightful executor. (0 In actions by or against attornies, peers, 
 and members of parliament, their privilege as such is stated 
 in the introduction. (y) *The various forms are so numerous, *^ 21ii2 
 that I have here only mentioned those which most frequently 
 occur in practice. (-t) 
 
 The statement of the cause of action, in which all the re- I'^unhly, tht 
 
 .... . cause of ac- 
 
 qvusites of certainty, which we have already considered, must tion. 
 
 be observed, necessarily varies, according to the circumstances 
 
 of each particular case, and the form of action, whether in 
 
 assumpsit.) debt, covenant, detinue, case, trover, replevin, or 
 
 trespass, the nature and general applicability of which actions 
 
 have already been considered. 
 
 In assu7n/isit, the statement of the cause of action is either MnAssunif 
 
 sit. 
 8/iecial or gejieral. The forms of such special counts \n as- 
 
 {e) 2 Saund. 117. f. n. 1. See the (/i) 2 T. R. 46. 
 
 fiirin. Sheet of forms. (/) 1 Sauiul. 265. 
 
 (/) 1 Sauiifl. Ill, 112. n. 2. ( /) 2 Saund. 1. n. 1. 5 T. R. 52.1. 
 
 (5") Com. Dig. tit. Pleader, 2. D. 3H.&P. 7. See the Sheet of fonuK. 
 
 1, 2. W. 8. 1 Sauiul I. 112. n. I. (A) See the various forms ii^^hr 
 
 3 East, 2, Shrct offinns.
 
 ^92 OF THE DECLARATION. 
 
 II. Its parts, sumpait, as most fi'cquently occur in practice, arc given in llie 
 
 Fourthlv, the second volume. We will first consider the rules to be ob- 
 cause oi ac- 
 tion, served in the structure of such special counts ; in which six 
 
 points are principally to be attended to, viz. 1st. The induce- 
 ment. 2dly. The consideration of the contract. 3dly. The 
 contract itself. 4thly. The necessary averments, othly. The 
 breach ; and, 6thly. The damages. 
 
 Imliiccment. An inducement^ in an action of assuvi/isit., is in the nature of 
 a preamble, stating the circumstances luider which the contract 
 was made. A formal inducement does not appear to be in any 
 case necessary in pleading, it would be sufficient if the subject 
 matter of the inducement \vere alleged in any other part of the 
 declaration ; but it is useful in coniposiiion, in order to avoid, 
 in the description of the consideration, or of the contract, a 
 
 * 293 variety of facts, the statement of which in one *continued sen- 
 tcv.ce of great length, might be scarcely intelligible. Thus in 
 an action on a wager on a liorse-race, it is usual to begin the 
 declaration with an inducement of the expected race. (/) So in 
 assumjisit upon an award, the existing ditTerences between the 
 parties are concisely stated ;(/??•) and on a contract to pay money 
 upon consideration of forbearance, the declaration begins by 
 stating- the debt forborne, and the proceedings that were stay- 
 ed. (w) But where the mere statement of the consideration and 
 promise will be sufficiently intelligible, without any prefatory 
 allegation, they are to be set forth without any inducement, as 
 in declarations ujjou bills of exchange, &c. which should pro- 
 ceed at once to state the consideration or contract, without any 
 preamble of the custom of merchant-;, which ought not to be' 
 set forth. (o) 
 
 It is said that as the office of an inducement is explanatory, 
 it does not recjuire exact certainty ;(/2) and where an agree- 
 ment with a tiiird person, is stated only as inducement to the 
 defendant's promise, which is the principal cause of the action, 
 
 (1) Post, vo]. 2. 7a. respective cliarnrters arc usually 
 
 {m) Id. 79. stated by wav of inducement. 
 (?;) Id. S-210 84. So in a:i MClion (o) .Ante, 219. 
 
 against a uhariinger, id. 111. A car- (y») Tidd's Vv,\e. ;5d edit. 381. cKc:-. 
 
 riei^id. 117. A coacli-owner, id. 1 19. Com. iJig. i'lcadcr, C. 31. 
 
 Or a captain of a ship, id. 12}. ihc'ii
 
 OF THE DECLARATION. - 293 
 
 it is in general sufficient to state such agreement without cer- //. Its parts. 
 tainty of name, ph\ce, or person ;(</) and this rule certainly ^*|"'''^''|^.' ^Jj.^ 
 obtains in the statement of matter, which constitutes an exe- liou. 
 cuted or past consideration. ('") *Thus 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 is not necessary to state the particular cause or subject mat- 
 ter of the dci)t, or the time when, or place where it was con- 
 tracted ;(r) and in an action for negligence, against an attorney 
 who has been employed to sue another, it is not necessary or 
 advisable to stale in an inducement, that such other person was 
 indebted. (s) In general, every allegation in an inducement, 
 which is material, and not impertinent and foreign to the cause, 
 and which consequently cannot be rejected as surpiusage, must 
 be proved as alleged, and consequently great attention to the 
 facts is necessary in framing the inducement, and care must be 
 taken not to insert any unnecessary allegation. (0 Thus in the 
 case just mentioned against an attorney, where the declaration 
 stated that E F was indebted to the plaintiff, and that the plain- 
 tiff employed the defendant to sue her, it being proved that 
 E F 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. (u) Where, 
 however, the matter unnecessarily stated in the inducement is 
 wholly impertinent, and might be struck out as surplusage, 
 there are some cases in which a failure *in proof of such state- * 295 
 ment would not be material. (xO 
 
 In declaring upon a contract not under seal, it is uniformly Consideration 
 necessary to state the consideration upon which it was founded. (w) 
 
 {q) Yclv. 17. {u) Peake, C. N. P. 119. 
 
 (r) I(i. ibid. Cro. Eliz. 715. 10 \v) 2 Bl. Rep. &40. Doug. 007, 
 
 Co. 59. b. Com. Dig. Pleader, C. 31. 5 T. R. 498. 3 T. R CiG. 
 
 4.r E. to. IS. (iu) Com. Dig. Action, Assump. 
 
 (r) Hob. 18. Post, vol. 2. 82. n. y. sit, H. 3. 7 T. R. 348 to 351. 5 T- 
 
 (s) Peakc, C. N. P. 119. R. l43. East, .-ifiS. 7 East, 9. 1 
 
 (K) Ante, '231,232. Doug. 007. S^uad. 211. n. fi. Bull. Iv P. 140, Ur. 
 
 Pcakc, C. X. P. 119. 5 T. R. 498. 
 
 3T. R. 046. 3B.kP.-l6:3. 
 
 Vor,. f. r 27 1
 
 295 OF THE DECLARATION. 
 
 //. Its parts- Upon bills of exchange and promissory notes, and some other 
 
 Fourthly, tlie Jetjal liabililies, the mere slutcment of the. liability which con- 
 cause of ac- .' ... 
 tisn stuutcs the consideration, is sufficient ; but in other cases of 
 
 simple contnicls, the consideration should be formally and ex- 
 pressly stated, whatever may be the form of action. (x) The 
 consideration, as stated, must always correspond with the facts 
 of the case, and be sufficient in law to support the promise as 
 laid, and be co-extensive therewith ;(//) and, therefore, a de- 
 claration against the husband alone, on his mere promise, with- 
 out any new consideration, to pay the debt of his wife contract- 
 ed by her before the marriage, was, upon motion in arrest of 
 judgment, held insufficient, because, to support such action 
 against the husband alone, some new consideration, such as 
 forbearance, should have been alleged. (z) The whole of the 
 consideration of the defendant's contract must also in general 
 be stated, and if any purt of an entire consideration, or of a 
 consideration consisting of several things, be omitted, the 
 plaintiff will fail upon the trial on the ground of variance. (a) 
 * 296 It is, however, sufficient, in general, *to state so much of any 
 
 contract, consisting of several distinct parts and collateral prg- 
 visions, as contains the entire consideration for the act, and the 
 entire act which is to be done in virtue of such consideration ; and 
 the rest of the contract, which only respects the liquidation of 
 damages, after a right to them has accrued i)y a breach of the 
 contract, is matter proper to be given in evidence to the jury 
 in reduction of damages, but not necessary to be shewn to the 
 court in the first instance, on the face of the record. (A) Where 
 a part of a consideration, or one of several considerations, is 
 frivolous and void, it is sufficient to notice only the valid con- 
 sideration, though if stated, it will not vitiate the declaration ;(c) 
 but no mode of pleatling can enable the plaintiff to recover, 
 where part of an executory consideration was illegal. (c/) 
 
 (a-) 2 B. & P. 79. LuUv. 2.^7. (c) Cro. Eliz. 140. 848. 1 Sid. 38 
 
 («/) 4 E.nst, 4C4, 4C5. 7 T. R. Cro. Jac. 128. l\ake, C N*. P. 62. 
 
 34S. Ci-o. Eliz. 79. 2 Burr. 1082. Bull. N. P, 147. 
 
 (r) 7 T. H. 348. {d) Cro. Eliz. 200. 4 Leon. 5 
 
 00 6East, ses. 8East, 7. 9.— Sir T. Joues, 24. 1 Saund. C6. n. 1- 
 
 Cro. Eliz. 79. Bull. N. P. l47. 1 Sid. 88. 7 T. II. 121. 
 (6) Poi- L.l. EUcnborougli, 6 East, 
 
 570. 6 Eust, 7,
 
 OF THE DECLARAiiOX. 2'06 
 
 The statement of the various points relating to the huffi- //. It:: parls- 
 
 riencv of considerations, would be foreien to a treatise of this fo»i!i>»'y. i'>« 
 ^ "' / ... cuiise oi de- 
 
 nature. So far as rei^ards pleadhig, considerations are, ist. tiun. 
 
 Executed, or something done, or past, at the lime of the 
 making of the defendant's contract ; 2dly. Executory, or so:iie- 
 thing thereafter to be done, or forborne ; odly. Concurrent^ as 
 in the case of mutual promises ; and, 4thly. Coiitimdn,^, as in 
 the instance of contracts between landlord and tenant. 
 
 In pleading an executed consideration, less certainty, in 
 general, is required in the statement of "the subject matter of ^ ^^7 
 it, than in describing an executory con5.ideration ; but it should 
 be shewn, thatsuch executed consideration arose at the defend- 
 ant's request, though s'ich request may in some cases be im- 
 plied in evidence. (r) 
 
 Tiie consideration, when executory, must be stated Mith 
 more certainty ; end, therefore, in an action for v/ages. Sec. in 
 consideration that the plaintift" would proceed on a certain voy- 
 age, the particular voyage must be stated.(./') The dislinclion 
 as to the diilerent degrees of certainty required in the slattment 
 of an executed, or executory consideration, probal>ly proceeds 
 on the ground that in the latter case the performance of the 
 consideration on the part of the plaintift', in general constitutes 
 a condition precedent, upon which the plaintift" 's right of ac- 
 tion depends.(5-) 
 
 A concurrent consideration occurs in the case of mutual pro- 
 mises, which are a third species of considerations, partaking 
 of the nature of the preceding two. The plaintiff's promise 
 is executed, but the thing which he has engaged to perform is 
 executory, as in promises to marry, to submit to an award, ou 
 . agers, S:c. The promises of each party must in general be 
 concurrent or ol)ligatory on both at the same time, to render 
 the promise of either binding, and must be so stated in plead- 
 ing. (/;) And in these cases it is not *al\vays necessary to aver -j^ 908 
 
 {e) 1 Saun<1. 204. n. I. 2 Su-a. (?•) Willes, isr. a. 1 Saund. 320. 
 
 933. 3 Burr. 1 fir I. Bac. Abr. As- Tidd, 381 to SSfi. 3il edit. 
 
 sumpKit, F. 3 R. k V. '2fl4. n. 4. (A) 3 T. U. US. 6.i3. Bl. Rc^j 
 
 (/) 2 B. k P. 116. 120.265. Yflv. 700. Peakc, C. N. R 228. Hob 
 
 110. Com. Dig. Action, .Vssunipsif, 146. Salk. U2. 5 East, 16. 
 1,1. 3. Buc. Abr. Assumpsit, F.
 
 298 OF THE DECLARATION. 
 
 11. IfD parts, performance of the thing stipulated to be done, the plaintift"'s 
 
 Fourthly, il.e ai^rccment to perform beins: a sufticient consideration//) unless 
 
 causa ot au- ~ 
 
 lion. the /le-r/oiniancp oi one MCt be the consideration of the per- 
 
 formance of the other, in which case an averment of fier/'orm- 
 ance, or readiness to perform> is in general necessary, even in 
 the case of mutual promises,(y) as upon mutual promises to 
 marry, and bargains to sell and accept goods. (^) 
 
 In the case of a continuing' consideration, the declaration 
 generally states, that in consideration that the defendant had 
 become and was tenant to the plaintiff of certain land, &c. he 
 undertook, during the continuance of the tenancy, to repair, 
 Ecc. and the declaration then avers the continuance of the 
 tenancy, and the breach.(/) 
 
 Where no consideration, or an insuflicient or illegal consider- 
 ation, is stated, the defendant may either demur, or move in 
 arrest of judgment, or support a writ of error.(m) But after 
 verdict, a defective, or informal, or uncertain statement, of a 
 consideration, not apparently illegal, may be aided ;(/») and 
 where the consideration is untruly stated, or a part thereof is 
 omitted, the objection can only be taken on the trial as a groimd 
 of nonsuit. (o) 
 
 After stating the consideration, the contract itself is usually 
 
 * 299 alleged, and this must be set *forth in some part of the de- 
 claration, either in the words in Avhich it was made, or accord- 
 ing to the legal effect^ and if there be a variance, it will be 
 fatal .(;^) It has been decided, that where the contract is found- 
 ed upon a legal liability, and implied, it is sufficient to state 
 such liability, without alleging formally that the defendant 
 promised, as in assumjidt on a bill of exchange ;(<7) but it is 
 more correct in pleading, in all cases to state that the defend- 
 ant, siijier se asaumjisit, or words to that effect ; for the law 
 does not create a promise in any case in pleading, though it 
 
 (0 1 Wils. S8. 5T. R. 409. 1 Ld. (m) 4 East, 455. 7T. R. 348. 
 
 Raym. 664. 1 Salk. 171. («) 4 East, 464. 2 B. k P. '265. 
 
 0) 1 Salk. 112. 171. 1L(1. Raym. (o) Cro. Eliz. 70. 8 East, 564. 7 
 
 665. 6 T. R. 570. 7 T. R. 1'25. East, 7. 3 T. R. 67. ri. a. 
 
 {k) 1 East, 203. {p) 1 T. R. 240. Doug. 669. 138. 
 
 (Z) 5T. R. 373. 4 East, 154.— 5 T. R. 4D8. 4 T. R. 560. 
 
 Leon. 102. Cro. Eliz. 94. 715. 2 (<;/) 5 T. R. 145. 1 Salk. 128.— 
 
 Leon. 224. 2 Bl. Rep. 842. Carlh. 509.
 
 OF THE DECLARATION. 2\jd 
 
 ttiay afford sufficient evidence to jusiify a jury in ilnding a pro- //. Jit }H'ri» 
 
 mise ir) The contract itself sliould not only be stated, but it i'""'^'"^''')'. t)ie 
 lAiiov,.!. / / cause ot ac- 
 
 should expressly be alleged, by and to whom it was made ;(«) tion. 
 though the omission may in some cases be aided, especially 
 after verdict ; and the promise will be intended to have been 
 made to the parly from whom the consideration proceeded. (0 
 On a promise to ^, to pay B a sum of money, if the action be 
 at the suit of /^, it is said that the promise should be laid as 
 having been made to B.{u) In stating the consideration we 
 have seen that it is necessary to set forth the whole ;(x') but in 
 stating the contract itself, though it might be improper to say 
 that the defendant inter alia /iro?ni.^il,{-7v) it is sufficient merely 
 to state the parts of the promise, *the breach of which is com- r^OO 
 
 plained of; and it is not necessary to state in the declaration 
 other parts, not quulifyiug or varying in any respect, those, the 
 breach of which is complained of.(x) As where the plainlifi" 
 declared that in consideration of his redelivery to the defend- 
 ant of an unsound horse, wiiich he had before then sold to the 
 plaintiff, the defendant promised to deliver to him another 
 horse which should be worth 80/. and be a young horse, and 
 then alleged a breach in both these respects, the declaration 
 was held sufficient, though the proof was not only of a promise 
 that the second horse should be worth 80/. and bo a young 
 horse, but also of a warranty that it was sound, and had never 
 been in harness. (z/) 
 
 The judgment of Lord £llenboroug/i, in the case of Clarke 
 \. Grey,(.z) elucidates this doctrine. " It is no more necessary ^* 
 
 " to state every part of an agreement, not under seal, each 
 " part making a distinct contract, than it is of an agreement 
 " under seal. It is sufficient in either case to state so much of 
 " each as constitutes that contract, the breach of which is 
 " complained of, and which prescribes the duty to be perform- 
 
 (r) Bac. Alir. Assumpsit, F. Com. (ii) 1 B. k P. 102. 
 
 Dig. A ;;iiOii, A-sMiuipsit, H. .3. 2 H. (v) Ante, 295, 290. 
 
 B1.1. 5fi3. n. a. 1 Ld. Kaym. 5o8. (-m) Alcyn, .5. 
 
 («) Ar.tr-, 257. n. y. (x) 8 East, 7. 6 East, .S67 
 
 (/) Com. Dig. Action of Assnmp- (r) 8 East, 7. 
 
 sit, A. 5. Lutw.238. Ante, 257. n. (r) East, 56'. 
 
 5,201. II. V. 2B.&P. 205.
 
 300 OF THE DECLARATION, 
 
 II. Its farts. '' ed, and the lime, manner, and other circumstances of its 
 
 rourtlily, the « performance ; with tl)is difference onlVf that in the case ot 
 
 eaiise ol ac- _ 
 
 tidii. " an agreement not under seal, the consideration must be sta- 
 
 " ted, and no part of the entire consideration, for any promise 
 
 *' contained in the agreement, can be omitted. "(a) 
 
 " It is sufficient to state in the declaration so much of any 
 
 "* 301 " contract, consisting of several distinct *parts and collateral 
 " provisions, as contains the entire consideration for the act« 
 *< and the entire act which is to be done in virtue of such con- 
 " sideration ; and the rest of the contract which only respects 
 " the liquidation of damages, after a right to them has accrued 
 " by a breach of the contract, is matter proper to be given in 
 " evidence to the jury in reduction of damages, but not ncces- 
 " sary to be shewn to the court in the fust instance on the face 
 '' of the record. Therefore, ansiimji.dt may be maintained in 
 " the common form of declaring against a carrier for the Iosk 
 " of goods which were of above Si. value, and were not in fact 
 " paid for accordingly, although it were part of the contract 
 " proved by general notice fixed up in the carrier's office, and 
 " presumed to be known and assented to by the plaintiff, that 
 « the carrier would not be accountable for more than 5/. for 
 " goods, unless entered as such, and paid for accordingly. (<!») 
 " There are a great variety of agreements, not under seal, 
 '< containing detailed provisions, regulating prices of labour, 
 " rates of hire, times and manner of performance, adjustment 
 " of differences, &c. which it may not be necessary to set 
 « forth."(f) 
 
 So any proviso or condition in the contract, which goes mere- 
 ly in drfaisaricc of it, needs not be stated, for this ought to 
 come from the other side ;(f/) but if such proviso or condition 
 constitute a condition precedent, or if there be any other mat- 
 
 * JQQ ter which qualifies the contract, or *goes in discharge of the 
 liability of the defendant, it must be stated.(e) 
 
 («) And see S East, 7. Doug. 676. ((0 1 Saund. 2.34. n. 2. 1 Lev. 88. 
 
 1 Saund. 233. n. 2. 1 T. R. 645. Ante. 
 
 (A) 6 East, 564. (e) 1 T. K. 645. 6 East, 570. & 
 
 (c) Per Ld. Ellenborough. 6 East, East, 8. 
 5€8.
 
 OF THE DECLARATION. 302 
 
 A contract in the alternative must not be stated as an abso- U- ^ts parts. 
 lute contract, though the option were in the party pleading ;(/) ^.[|"Jg^ '^-f? \^^ 
 uud it may be advisable where goods have been sold on credit uo». 
 to be paid for by a bill of exchange to be accepted by the ven- 
 dee, to state such contract specially, and the breach, even after 
 ihe expiration of the limited credit ;(§•) and such statement is 
 clearly necessary, when the action is brought for nv.t accepting 
 the bill before the credit has elapscd.(//) 
 
 Upon a written contract it is usual to follow tlie words of the 
 contract, where they are concise and intelligible, and if the le- 
 gal effect be doubtful, this is the safer course. The plaintiff, 
 however, is not bound to set forth even the material parts in 
 letters and words. It will be sufficient to stale the substance 
 and legal effect, which is shorter, and not liable to misrecitals 
 and literal mistakes ;(/) and as the courts discountenance any 
 unnecessary prolixity in pleading, it is advisable to adopt the 
 latter course, where the recitals, Sec. may be long. Thus in 
 declaring in covenant upon a lease, h.c. it is in general advisa- 
 ble not to set out the premises /^er ncmcn, as in the lease, but 
 to state " that the plainiiff demised to the defendant certain 
 '' premises particularly mentioned and described in the said in- 
 " denture, except as therein is excepted, to hold the same for 
 " a certain term *therein mentioned, yielding and paying the ^ 2/)'^ 
 " rent of /. payable on," &;c. and then to state the cove- 
 nant for payment of the rent, the entry of the defendaiit, and 
 the breach in not paying the rent due ; or if the action be for 
 the breach of any other covenants, the plaintiff, if he stale the 
 rent at all, which is unnecessary, should Si;y concisely, " at a 
 " certain rent payable as in the said indenture is menlioned,'"" 
 and then set forth those covenants, and the breach of them- 
 And where the plaintiff in covenant in a mortgage deed, set out 
 the premises, which were numerous, Lord I^TumJicid sidd, that 
 though he was told that it was tl.e usual practice, he thought it 
 a disgrace to the profession and to tlie court, and suid that the 
 couft would animadvert upon any future instance of putting 
 
 (/) 2Ki,st, 2. 2B. k P. 119. (/i) KI. ibid, 
 note a. 3 T. U. 531. 8 East, S. (/) Douj;. f)'"i". 1 Sflund. 2*3- n. 
 
 {(;) 3 11. k P. 5S:- 4 Kaat, XiT 2 Saijnd. .%6. 305, b. n. l."^.
 
 303 OF THE DECLARATION. 
 
 //. Its parts, parties to the enormous expense of setting out deeds at length, 
 Fouitlily, tlie or superfluous parts of them//) The statement of the con- 
 tion tract should in strictness be positive, and not by way of recital, 
 
 as by a tvatatum cxhtit ; but this will suffice in a declaration, 
 though it would be insufficient in a plea.(/(-) Where the con- 
 tract must have been in writing under the statute of frauds, 
 yet it is not necessary in a declaration to shew that fact, though 
 it is otherwise in a plea.(/) The contract should be stated with 
 certainty, but an omission in this respect may be aided by ver- 
 dict.C'w) 
 Variance. From the preceding observations it may be collected, that if 
 
 * 304 the consideration or the contract 'proved in evidence, vary 
 from that stated in the pleadings, the plaintiff will be non- 
 suited. (?^) A trivial variation in setting out a contract, a re- 
 cord, or any Avritten instrument, is fatal, because it docs not 
 appear that the contract given in evidence is that on Avhich the 
 plaintiff declares, it is matter of descripuon.(o) The leading 
 case upon the subject of variances, in the statement of con- 
 tracts^ is that of Brhtoio v. Wright and another,(/?) where in 
 an action against the sheriff for taking goods under di Jicri fa- 
 cias.) without leaving a year's rent, the declaration stated, that 
 the person against whom xhe Jieri facias was issued, held cer- 
 tain tenements, as tenant to the plaintiff under a demise, at 
 
 the yearly rent of /. payable by four quarterly fiayments, 
 
 but on the trial it was proved, that there was no stijiulation as 
 to the time of the ^layment of the rent, upon which the plaintiff 
 was nonsuited. And Lord Mansfield, on a motion for a new 
 trial, gave judgment to the following effect : " It certainly 
 " was not necessary to allege that part of the lease which re- 
 " lated to the time of payment, in order to maintain the action i 
 
 (j) Cowp. r)65. 727. 1 SmuikI. 233. 2 B. k P. 51. 119. 2 East, 4. Doug, 
 
 n. 2. 2Sauml. 305. u. 13. 366. Doug. 660. n. 138. 5 T. R. 428. 4 T. U. 
 
 667. 560. Bull. N. P. 145. Itep. temp. 
 
 {k) 1 Saimd, 274. n. 1. 2 Lev. 75. Hardn. 309. 
 SKeb. 94. G Vin. Abr. 461. 1 B. k {o) Id. ibid. 4T. R. 560. Gili.. 
 
 P. 376. Cases, L. k E. 229. 
 
 (/) 1 Saund. 276. a. n. 2. 4 East, {p) Doug. 665. 4 T. R. 687. 1 T. 
 
 4no. R. 447. 8 East, 9. As to variances, 
 
 (ni) 2R. &P. 265. Ante, 261. see also 8 East, 1S8. Campb. N. P 
 
 (n^. 1 T. R. 240. Per BuUer, J. 195.
 
 OF THE DECLARATION. 304 
 
 " but since it had been alleged, it was necessar)' to prove it. ^I- ^'^ parts. 
 
 , ... , • , , FourlhlV; tlie 
 
 " The distinction is between that which may be rejected as j.,^use ^^ y^, 
 
 «' surfilusage^ (which might have been struck out cii motion,) ^'°'^- 
 
 " and what cannot. Where the declaration contains imherti- 
 
 «' nent matter foreign to the cause, and which the master, on a 
 
 «< reference to him, would strike out, (irrelevant covenants 
 
 *< *for instance,) that will be rejected by the court, and need not * 305 
 
 '' be proA'ed. But if the very ground of the action be misstated, 
 
 " as where you undertake to recite that part of a deed on which 
 
 " the action is founded, and it is misrecited, that will be fatal j 
 
 " for then the case declared on is different fi'om that which ia 
 
 *' proved, and you must recover secundum allegata et probata. 
 
 " This distinction will reconcile all the cases. If this doctrine 
 
 *' were highly detrimental, and setting it right would be attended 
 
 " with no mischief, as it is only a mode of practice, it might 
 
 " deserve consideration ; but I believe it stands right, and upon 
 
 " the best fooling, for it may prevent the stuffing of declara- 
 
 " tions with unnecessary matter, because of the danger of fail- 
 
 " ing in the proof, und may lead pleaders to confine themselves 
 
 *' to state the legal cFfect." In Savage v. Smii/t,((/) De Grey^ 
 
 C. J. proceeded upon the distinction between material and im- 
 
 fiertinait averments, and said, that the former must be proved, 
 
 because relative to the point in question, but that the latter 
 
 need not ; and Lord Mamjicld approved of this distinction. (r) 
 
 Lord Kenyon.^ in Gwinnett v. Fhili/is, .1) said., " that there was 
 
 " no doubt that if the plaintiff professed to set out his title he 
 
 ♦' must set it out correctly. (/) So where a contract is to be 
 
 •* stated *in a declaration, unless it be truly stated the plaintiff * (^QQ 
 
 " cannot recover ; but it is now contended, that in every case 
 
 " the facts alleged by the plaintiff must be strictly proved, 
 
 " otherwise he must be ncnsuited ; but the rule can never be 
 
 " carried to such extent ; the doctrine in Bristovj v. Wright 
 
 (9) 2 Rl. Rep. no*. title was impevtijtent as it was unne- 
 
 (r) Do(ig. 067. cessary to shew ami title. In Doug. 
 
 Cv) 3 T. 11. f)i5. C68. the editor states that the word 
 
 (0 '2 Bl. Rep. 1104. 2 Saund. 206. material in 2 P.l. Rep. 1104. is a mis- 
 
 %. n. 22. n. 24. ace. In 2 Ul. Rep. 842. take in the press :ind should have been 
 
 and I Stra. 229, 230. the averment of immatcrialj but see 2 Bl. liep. 842. 
 
 Vol. I. [ 28 ]
 
 S06 OF rilE DECLARATrdlsr. 
 
 //. If.i partn. ** must be confined to contractfi ; good sense will reconcile all 
 Snse'^iif ^u- " ^'^^ auihoi'ities. If the pUiintiff allege any thing, which iorm* 
 tioii. " a constituent {lart of his title, he must set it out correctly." 
 
 And Mr. J. Bidlcr observed, "that the case oi Eristoto v. 
 <' Wright was not lai authority beyond the cases of contracts., for 
 " a contract is entire in iis nature, and must be proved as laid ; 
 *' and that perhaps the rule h.id down in that case would be 
 " found to extend to all cases of records and written cojitvucts.'* 
 In Pc/'pin'v. Solomons, ji) Mr. J. /duller observed, "thatti.e 
 " case of Bristoio v. Wright had been sometimes dcubiid, 
 " but that he was s;ill of opinion that ii was jightly deci uir. ; 
 *' that in order to entitle the pLiinfiir to maininin that acti('i; it 
 " was necr^fnanj for him to sliew that he was the lundlor it 
 *' being an action against the sherifl'for taking the lessee's g^.o'is 
 •' without leaving a year's rent ; and to shew that the plaintiii was 
 " the landlord, he was obliged to set forth a contract betweei. im- 
 " self and the tenant; now contracts ate in their nature entire, 
 « and in pleadings they must be st..ted accurately ; but as 
 *' the evidence in that case did not accord with the contract sta- 
 ?fc Q()7 " ^t;<^ in t'^e declaration, and which was the *foundation of the 
 *' action, it was properly determined that a judgment of nonsuit 
 " should he entered." And with respect to what statements 
 are necessary to be proved, the rule stems to be, that if the 
 whole of the statement may be struck out, without destroying' 
 the plaintiff's right of action, it is not necessary to prove it; 
 but otherwise^ if the whole cannot be struck out, without getting 
 rid of a part essential to the cause of action : for then, though 
 the averment be more Jiarticular than it need have been, the 
 whole must be proved, or the plaintiff cannot recover.(T;) It 
 may be collected from the above authorities, that whenever a 
 contract is described, a variance will be equally fatal, whatevei? 
 may be the form of action, whether upon the contract itself, or 
 upon some collateral matttr, or in an action in form ejcdelicto.{w) 
 If a contract be described according to its legal effect, it will in 
 general be sufficient, though it may vary from the precise words 
 of the contract ; but a variance, however small, in setting out 
 
 (?/) 5 T. \\. 496. (w) Doug. 067. ^ Esp. Rep. 3. 
 
 (r) 2 Easi, 452. 502. 4 East, 400 
 3B1. Rep. 1104.
 
 OF THE DECLARATION. 307 
 
 Uic names, kc in a bill or note, is fiifal ; und therefore -where ^^- ^t" /"'"'* 
 a note yiven by the numc of .S'/// -////f unci otliers, was described p.|||l.g''y7 ^^^^, 
 in tiic declarcition as made by S/iut/i^ dud others, the pluintitf tion. 
 •vvas nonsuited. (x) And wlieie the contract stated on the record 
 is even by it gal intendment different from that proved in evi- 
 dence, the vuriance will be fatal ; thus where the declaration 
 stated a contract to deliver 400 busfu-ls of oats, the *plaindfr * 30B 
 was nonsuited on proof that tiie bushels were not lo be U'in- 
 eheater measure (.r) 
 
 Where the consideration or contract or other matter alles^cd 
 is material and traversable, the statin!^ it under a nciltcct will not 
 avoid the consequences of a variance. (;/) and it will be consider- 
 ed as a sufficient positive statement ;Cr) and on the other hand 
 it has been decided that the omission of a scilicet will not render 
 an immaterial averment material to be proved as stated, even in 
 a criminal proceeding,(a) unless some positive allegation be 
 adopted, as the words " and no more. "(A) 
 
 An averment signifies a positive statement of facts in opposi- Ot averments, 
 tion to argument or inference ;(r) and when the obligation on 
 the defendant to perform his contract depended on any event 
 which *wouldnot otherwise appear from the declaration to have ^ 309 
 
 occurred, it is obvious that an averment of such event is essen- 
 
 (.r) 4 T. R. 611. 3 B. k P. 559. consequences of a vnriance. Sec 2 
 
 (j-) 4 T. II. .314. Siumd. 21)1. c. n. 1. Pe.ike's Law of 
 
 ly) GT. U. 402. 2 B. Sc P. 118. ' Evidence, 2(1 edit. 196, 19". But with 
 
 1 Suuiid. iro. n. 2. 2 S.-^und. 291. a. deference, it is pi-esumtd on the au- 
 
 b. c. 2ur. b. 1 Su-a. 233. 5 T. R. thority of the case in T. li. 265. and 
 
 71. 4 T. U. 591. 3 T. H. 68. upon the priuciple on « liich the other 
 
 (:) 2 Suund. 291. a. 1 Stra. 233. decisions arc founded, and from the 
 
 (a) T. \\. 265. 3 T. R. 643. 645. doctiine of venues in transitorv ac- 
 
 S-d vid. 3 T. M. 68. tioiis, ante, 269. 2S2. and from llic cir- 
 
 (i) 3 T. R. CS. 2 Saund. 206. a. cumsUiiiecs of time an<l place being; in 
 
 It has indeed been said by counsel in general immaterial to be proved as 
 
 argument, and afe ol>itcr dicta in many stated, even in an indictment — (sec 
 
 of ihe c.»ses referred lo in the note ((/), 4 Hawk. 7th edit. 46, 47. 2 Hale's P. 
 
 supra, and by some very accurate el-j- C. 179,180. 2Tnst. 318.) — that the 
 
 ment.iry writers, that the omission of omission of a scilicet will not render 
 
 a scilicet or videlicet will frequently it materiid to pro', e precisely as stated 
 
 render fi material to prove precisely matter which is immaterial. As to 
 
 as stUed matter which would not the nature and use of a scilicet in 
 
 otherwise he material, and that it is general, see 5 East, 252. 2 Saund. 
 
 therefore necessary to state sums, 291. n.l. 
 
 time, and place, thonsih immaterial, (t) Cowp, 68.% 684. Bac. Abr 
 
 niidei' a scilicet, m order to avoid the Plea«, B.
 
 305 OF THE DECLARATION. 
 
 // Its parts, tial to a logical statement of ihe defendant's breach. Suchaver- 
 
 Fourthly, the nients in a special action oi assumhsit usually are, 1st. Of the 
 cause ot ac- . . 
 
 tion. performance or excuse for non-performance of a condition prece- 
 
 dent ; 2dly. Of the defendant's notice of such performance ; arid, 
 3dly. Of the defendant's having been requested to perform 
 his contract. (c?) 
 
 V/hen the consideration of the defendant's contract was exe- 
 cuted or past at the time of makint^ the contract, and his per- 
 formance was not to depend on any subsequent event or other 
 circumstance essential to the action, the declaration should pro- 
 ceed at once from the statement of the contract to the breach, 
 without any intermediate averments, as in a count on an indebita- 
 tus assumpsit., £tc.(f) But when the consideration of the defend- 
 ant's contract was executory, or his performance was to depend 
 pn some act to be done or forborne by the plaintiff, or on 
 some other event, the plaintifl' must aver the fulfilment of such 
 1 condition precedent, whether it were in the aftirmative or nega- 
 
 tive, or to be performed or observed by him or by the defend- 
 ant, or by any other person, or must shew some excuse for the 
 non-performance. (y) And in the case of reciprocal covenants 
 *■ 310 constituting^ mutual conditions to *be performed at the same timcy 
 
 the plaintiff must aver performance or a readiness to perform his 
 part of the contract. C^-) 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 exe- 
 cuted or tendered. (A) So on a promise to pay money in con- 
 sideration of forbearance by the pUiiniiiT, 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, Scc.CX:) But where an estate or interest 
 passed or vested immediately in the plaintiff, and was to be de- 
 feated by a CQn(}i\Vxonsubsequent, ov iri'diteY ex fiostjacto, whether 
 
 (r/) Cowp. f)S3, 684. and as to avciv (/) Ugblred's case, 7 Co. 10. a. 
 
 ments of performance of conditions Com. Dig;. Pleader, C. 51, 52. Uoug. 
 
 precedent, and of notice and request 686. 1 T. R. 658. 
 
 in general, see Com. Dig. tit. Pleader, ( q) Id. ibid. 1 East, 203. 
 
 C. 50. S<c. 1 Saund. 235. n. 8. Bae, (h) 2 Burr. 899. 
 
 Abr. Pleas and Pleading. (i) Com. Dig. Ple.nder, C- 52. Post, 
 
 ((') Post, vol 2. 5. 101. vol. 2, 82, 83. 
 
 (k) 1 East, 203. Post, vol, S ?9 ..
 
 OF THE DECLARATION. 3lO 
 
 in the affirmative or negative, or to be performed by the plain- //. //,, pari.". 
 tiff or defendant or by any other person, performance of that l*''^"rthly, the 
 
 1 1 • 1- ,- • cause ol ac- 
 
 mattcrneed not be averred ;(/) as it a grant of an annuity were liou. 
 
 till the plaintift" should be advanced to a benefice, he need not 
 
 say that he is not yet advanced. (w) 
 As observed by Lord Mansfield, in delivering his judgment in 
 
 Kingston v. Preston,(n) " there are three kinds of covenants : 
 " 1st. Such arc called mutual and indefiendent, where either 
 " party may recover damages from the other for the injury he 
 
 may have received by a breach of the covenants *in his favour ^ ^H 
 
 " and where it is no excuse for the defendant to allege a breach 
 *' cf the covenants on the part of the plaintiiT. 2dlv. There 
 " are covenants which are cntiditions defiendent on each other ; 
 " in which the performance of one depends on the prior per- 
 " fornuxnce of tlie other ; and, therefore, till this prior con- 
 " dition be performed, the other party is not liable to an action 
 " on his covenant. 3dly. There is also a third sort of cove- 
 " nants which are mutual conditions to be performed at the same 
 " time ; and in these if one party was ready and offered to per- 
 " form his part, and the other neglected or refused to perform 
 " his, he who was ready and offered, has fulfilled his engagc- 
 " ment, 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 hoAvever transposed they may be in the deed, 
 " their precedency must depend on the order of time in 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 secu- 
 <* rity of the plaintiff, but before he delivered up his stock and 
 " business, should have good security for the payment of the 
 
 (0 7 Co. 10. a. Willes, 145, 146. 1. Tidd's Prac. Sil edit. 382 to 386. 
 
 l>n) Id. PI. Com. 25. b. 30. a. 32. 1 East, 203. Com. Dig. Pleader, C. 
 
 b. 1 T. R. 64. 2 11. Bl. 579. 50 to C. 68. as to conditions precedciit 
 
 (n) I)on;». 690, 691. and see the and averments of performance in gc< 
 
 note in Willes, 157. n. a. 1 Sannd. neral. 
 3-20. n. 4. 2 Sauiid. lOS. n. 3. 352. ii.
 
 311 OF THE DECLARATION. 
 
 //. Its parta. « money ; the giving such security, therefore, must necessa- 
 Fourthly, tlje ,, •, , ,• • i >» 
 
 cause of ac- ^"7 ^^ ^ condition precedent. 
 
 **'"'• There are no precise technical words in a deed or other con- 
 
 tract to make a stipulation a condition precedent or subsequent, 
 neither does it depend on the circumstance whether the clause 
 
 * 312 is placed prior or posterior 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 na- 
 ture of the transaction. (o) The contradiction in the determina- 
 tions has arisen not from a denial, but from a misapplication of 
 this principle in the particular instance.(/i) 
 
 The words by which conditions precedent are usually created 
 are, yo'*,(y) in consideration of, ita quod.,{r) /iroindc,is) Sec. In 
 general, if the agreement be, that one party shall do an act^ 
 and that /or the doing thereof the other shall pay a sum of mo- 
 ney, the doing of the act is a condition precedent to the pay- 
 ment, and the parly who is to pay, shall not be compelled to 
 part witli his money till the thing be performed. If there be 
 a condition precedent, however improbable the thing may be, 
 it must be complied with, or the right which was to attdcli 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 condition, 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. And if a person undertake for 
 the act of a stranger, the cases are uniform to shew that such 
 act must be performed.(u) And on this principle, where by 
 the proposals of the Phcenix Insurance Comfiany against fire, 
 
 * S13 it was stipulated that persons insured, *should, in case of loss 
 
 by fire, procure a certificate of the minister, Sec. of the parish, 
 importing that they knew the charucttr of the assured, and be- 
 lieved that he had really sustained the loss without fraud, it 
 was held that the procuring of such a certificate, was a con- 
 
 Co) Per AsliJuirst, .1. 1 T. R. C45. edit. 3S3. 1 Sti-a. 569. 1 Vent. \77. 
 
 CT. R. 570. Gf)8. 7 T. R. \oO. 1 214. 2 Saund. 350. S. C. 
 
 East, 203. (r) 2 Ld. Raym. 766. 
 
 (yi) 1 Sannd. 320. a. Willes, 157. («) Dou- 688. Willes, 149. 
 
 r.a. (0 6T. R. 719. 
 
 (7) Dou!j. 6S8. 1 Sawnd. 320. n.4. \n) Per Ld. Kenyon, C. J. an^ 
 
 \Villcs> 157. a. Tidd's Pmc. od Lawrence, J. 6 T. R. 719. 722.
 
 OF THE DECLARATION. 313 
 
 tUcion precedent to the right of the assured to recover, and //. Im parts. 
 that although it was found by verdict, that the minister, Ecc. f^'J,""''J;f' *^^* 
 ■5\ ronglliily refused to sign the certificate, yet as it was not tion. 
 averred in the declaration that the certificate was actually ob- 
 tained, the judgment was arrested. 
 
 Some rules have been collected, by which to discover the 
 intenlion of the parties and to ascertain when performance or 
 excuse of performance by the plaintiff, is necessary to be 
 averred in the declaration ;(?/) and, 1st. Where a day was ap- 
 pointed for payment by the defendant, of money or part of it, 
 or for his doing any other act, and such day was to happen be- 
 fore the thing which was the consideration of the defendant's 
 conti'act was to be performed, an action may be brought for the 
 money or for not doing such other act before performance by 
 the plaintiff; for it appears that the defendant relied upon his 
 remedy and did not intend to make the plaintiff's performance 
 a condition precedent.(z) 2dly. But when a day was appointed 
 for the performance of the defendant's contract, and such day 
 -was to happen after the time, when *the consideration of the * 314 
 defendant's contract was to be performed, in such case in ge- 
 neral, no action can be supported until the plaintiff has per- 
 formed his act, and such performance must be averred. (c) 
 3dly. That where the plaintiff's covenant or sapulution con- 
 stituted only a fiart of the consideration of the defcnd.mt's 
 contract, and the defendant has actually received a partial bene- 
 fit, and the breach on the part of the plaintiff might be com- 
 pensated in damages, an action may be supported against the 
 defendant, without averring performance by the plaintiff ;(6) 
 for where a party has received a part of the consideration 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 per- 
 form the agreement on his part, and leaves him to his remedy 
 to recover any damage he has sustained in not having received 
 the whole consideration. In these cases, however, it seems 
 
 0/) 1 Saund. 320. n. 4. Tidd's {a) 1 Saund. 320. b. 
 
 Prae. 3(1 ediL 385. (6; 1 Snuiid. 3;20. »». 1 H. Bl. 2r3. 
 
 (r) See the cases referred to iti 1 OT. R. aT"-!. Campb. N. P. 56. 
 Siiimd. 320. n. 4. I Wils. 8S
 
 S14 OF THE DECLARATION. 
 
 II. Tt!< purls, necessary lo aver in ihe declaration, performance of at least & 
 Fouitlilv, the part of that v/hich the plainlifF covenanted to do, or that the 
 
 cnusc ol ac- . , . r r \ 
 
 uon. defendant has otlierwise received a partial benent.(c) 4ihl)'. 
 
 But where the mutual covenants constitute the ivhole considera- 
 tion on both sides, they are mutual conditions, the one prece- 
 dent to the other, and the plaintiff must aver performance on 
 his part.((i) 5lhly. Where two acts are to be done at the same 
 time, as where ^i covenants or agrees to convey an estate or lo 
 
 * 315 deliver goods to /i on *a named day or generally, and in con- 
 
 sideration thereof, Ji covenants to pay ^ a sum of money on 
 the same day, or generally ; neither can maintain an action 
 without shewing performance of, or an ofler to perform, or at 
 least a readiness to perform his part, though it is not certain 
 which of them was obliged to do the first act ; and this rule 
 particularly applies to contracts of sale.(e) 6thly. Where 
 there are mutual promises and agrecincnts, yet if one thing 
 be the consideration for the other, there the plaintiff's per- 
 formance must in general be averred. (y) But there are some 
 cases in which it has been decided, that where it appears that 
 the defendant relied rather on the plaintiff's agreement to per- 
 form his act than his actual performance of it, it is not neces- 
 sary to aver his performance.(^) 7thly. It is said that where 
 the participle " doing," " performing," he. Is prefixed to a 
 covenant by another person, it is a mutual covenant, and not 
 a condition precedent. (/t) 
 Form of In point of form an averment may be in any words amount- 
 
 ing to an express allegation ;(0 as that the plaintiff avers, or 
 171 fact saiihy or although, or because, or ivith this that, or bc' 
 itig, Sec. and vvhere it is necessary to aver the life of a person 
 in pleading, it has been held sufficient if it appear by implication 
 
 * 316 that the *iife continues. (7) So if it be stated that .^ was seised 
 
 in fee and died, and that the land descended to B, as his son and 
 
 (c) t Saund. 320 c. {h) 2 Bl. Rep. 1313. Willes, UG. 
 
 {d) 1 Saund. 3'2(). n. 4. 406. 
 
 |_f) 1 Sauiul. 320. n. 4. 2 Saitinl. (?) 1 Saund. 117. 11. 4. Com. Dig. 
 
 35'2. n. 3. & 108. n. 3. 1 East, 203. Pluader, C. 77. As to the manner of 
 
 {/) 1 Srdk. in. 1 lid. Ruyn). making an averment, see Covp. 6S3, 
 
 665. 6T. R. 570. 7 T. R. 125. 2 684. 1 Saund. 117. n. 4. Willes, 
 
 Saund. 252. n. 3. 5 T. R. 409. 134. 427. 
 
 {§■) 1 Wi!s. 88. 5 T. R. 409. 1 (j) 1 Saund. 235. n. 8. 2 Saund 
 
 Lev. 87. Com. Dig. Pleader, C. 54. 61. n. 9.
 
 OF THE DECLARATION, 316 
 
 heir, this was held a sufficient averment that A died seised. (X) U- Jts pans. 
 
 It is not unusual in declarations on mutual promises, cind in f/|,"g ^.'f l„, 
 
 covenant between landlord and tenant, to aver that the plaintiff lion- 
 
 hath performed all things on his part to be perlbrmed, but this 
 
 Is unnecessary ;(/) though it may after verdict aid the omission 
 
 of an averment of plaintiff's performance of a particular 
 
 act.(nO 
 
 Where it is necessary on the part of the plaintiff to aver 
 fxcrfnrmance^ it must be shewn to have been accordinoj 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 considera- 
 tion 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. («) And an exact performance must also be 
 stated, as in a promise in consideration that the plaintiff would 
 procure the loan of 20/. for one year, it is not sufficient to al- 
 lege that he procured a part at one time and a part at another, 
 for he ought to procure the whole for the whole year :(o) and 
 performance ought to be shewn with such certainty, that the 
 court may judge whether the intent of the covenant has been 
 duly fulfilled, *as in consideration that the plaintiff would acquit * 317 
 
 A of a debt, it is not suflicient to say that he acquitted him, 
 without shewing how, viz, by deed :(//) but if the plaintiff shew a 
 certain and exact performance, it is frequently sufficient to state it 
 in general terms, without alleging particularly how he perform- 
 ed; as on a promise to pay so nmch as the plaintiff should ex- 
 pend for the officers of the army, in such a suit, an averment 
 that he spent so much is sufficient, without shewing for what 
 ofiicers in particular.((/) And there are some instances where 
 the thing agreed to be done by the plaintiff having been svih«- 
 stantially performed, though not in the exact manner, nor with 
 all the circumstances mentioned, it was considered as a suffi- 
 
 {k) 2Saund. 61. g. n. 9. (o) Com. Dig. Pleader, C. 59.— 
 
 (0 1 Saund. *235. n. .5. Yelv. S7. 
 
 (w) Lutw. 253. Sir T. Jones, 1-35. (/<) Cro. J.^c. 50.3. Corn. Dig. 
 
 Com. Dig. Pleader, C. Gl. PkMder, C. CO. Cro. Eliz. 914. Sir- 
 
 (;j) Com. Dig. Pleader. C. 58.— T. .loi:es, 125. 
 
 Yelr, 90. («) Conv Dig. Pieador, C. Si. 
 
 Vol. T. .[ 29 ]
 
 317 OF THE DECLARATION. 
 
 11. Itn paru. cicnt performance ;(r) as where the condition was to enfeoff", 
 
 Foui-Uiiy, t'le a conveyance l)y lease and release was Jield sufficient :U) so 
 
 cause ot ao- 
 
 tiwi. where the coudilion was to deliver the will of the testator, and 
 
 the pkintitf delivered letters testamentary. (/) Where the con- 
 dition precedent was in the disjunctive, the averment of per- 
 formance must be framed accordingly, and not in the conjunc- 
 tive. (?<) 
 
 In averring an excuse of performance by the plaintiff, he 
 must state his readiness to perform the act, and the particular 
 circumstances wliich constitute such excuse ; and therefore 
 wheie the declaration stated tliat arbitrators could not make 
 their award without shewing the special cause Avhich prevent- 
 ^ 318 ed them, it was held insufficient. (tu) In "stating an excuse for 
 non-performance of a condition precedent, the plaintiff must, 
 in general, shew that the defendant either prevented the per- 
 formance, or rendered it unnecessary to do the prior act, by 
 his neglect or by his difichurghig the plaintiff from perform- 
 ance. (w) The performance of a condition precedent may also 
 be excused by the absence of the defendant if his presence were 
 necessary for the plaintifi's performance, or by his neglect to 
 do the hrst act, if it were incumbent on him to perform \i.{x) 
 It may also be excused in some cases by the defendant's not 
 giving notice to the plaintiff.Cj/) 
 
 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 readiness to perform his 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 .(r) Thus where the defend- 
 ant stipulated to pay a sum of money on the plaintiff's 
 assigning to him a certain equity of redemption, and the de- 
 claration averred that the plaintiff was ready and willing, and 
 
 (>•) G T. R. 7^H. (.r) 1 Roll. Abr. 4.57, 45S. 7 T. R. 
 
 (s) Co. Lit. '207. a. 1.31. 
 
 (.') I lioll. Abr. 426. pi. 4. {y) 1 Roll. Abr. 457, 458. C«. 
 
 00 1 Stra. 594. Lit. 207. a. 
 
 (v) -■''i*'J'"'- '^9- 132. (r) Dou^-. 081. I East, '2(^3. t 
 (w) I T. R. 638. Dyiig 6Sl. CS7, S.-iu;kI. 332. n. 3 
 688. Co. Lit. 200. b.
 
 OF THE DECLAIJATIOX. 318 
 
 fiffered to assign, and tendered a draft of an assignment to the ^^ ^'•" /'O''^ 
 
 defendant for his approbation, and offered to execute and de- ^"•""■^'''>' ^''« 
 ' ' cause or ac- 
 
 liver, and would have executed and delivered such assignment t'O"- 
 to the defendant, but that he absolutely dinchargcd the pluiniiff 
 from executing the same or any assignment whatever, and had 
 *not paid the money, such declaration was on demurrer held * 5]^ 9 
 sufficient. (G) So in an action for the non-delivery of goods, 
 which the defendant had undertaken to deliver on request at a 
 crtain price, it is sufficient for the plaintiff in his declaration, 
 without alleging an actual tender of the price, to aver such re- 
 quest, 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, but refused to 
 deliver them \{b) or if the defendant did not attend at the 
 appointed place, such non-attendance should be stated, which 
 would render an averment of request unnecessary. (c) 
 
 The omission of the averment of the performance of a con- Con'^eriuoiices 
 ... , ^ r I r • ''^ mistake. 
 
 union precedent, or ot an excuse tor the non-pertormance, is 
 
 fatal on demurrer, or in case of judgment by default \{(V) but 
 after verdict the omission may in some 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 ; for a verdict will cure a case defectively stated ;(f) but 
 where the non-performance of the condition precedent, is 
 admitted by tlie pleadings, a verdict will not aid the defect. (/) 
 
 It is frequently necessary, particularly in special actions of ^' 'tife 
 assumfisit to aver that the defendant had notice of some fact or 
 facts previously *stated ; and a great variety of the instances ^ 
 where such averment is necessary arc collected in the books 
 referred to in the note (.§•) and from 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 dc- 
 
 (a) Dong. G,S4, 685. n. g. k h. I Saunf]. 2CS. n. l.Sed 
 
 {!>) \ East, 2(13. vide Doxip:, 6r9. Cro. Jac. S0.1. 
 
 (0 7 T. R. 129. 1.31. (/) 6 T. 11. 710. 
 
 (»/) 2 Burr. 809. 2 Saiind. .i.S2. n. .3. {g) As to averring Tiodce, see 
 
 (f) I East, 209, 210. 2 S.oiiul. Com. Dis?. tit. Pleader, C. 7S, 74, 7?- 
 
 352. n. 3. 2 Burr. 900. Dini^^. 687. Yin. Ahr. Xotic«. Ilardr. 42. 5 T.. 
 
 K. 02t. C2I.
 
 320 OF THE DFXLARATION.. 
 
 77. Its parts, fendant, then the declaration ought to state that the defendant 
 
 Fourthly, the had notice thereof; as where the defendant promised to t>;ivc 
 cause ot jic- . .. i o 
 
 tioii. the piainiifT as much for a commodity as another person had 
 
 given, or should give him for the like, or to pay the plaintiff 
 what damages he had sustained hy a battery, or to pay the 
 plainti ft" his costs of suit :(/0 and in a declaration against the 
 drawer or indorsee of a bill of exchange, it is material to 
 aver notice of non-payment by the acceptor, or some excuse 
 for the neglect. (z) But where the matter does not lie more 
 properly in the knowledge of the plaintiff than of the defend- 
 ant, notice need not be averred. (;') Therefore, if the deicnd- 
 ant contracted to do a thing, on the performance of an act by a 
 stranger, notice need not he averred, for it lies in the defcndi^ 
 ant's knowledge as much as the plaintiff's, and he ought to 
 take notice at his peril \{k) and tiiough it is usual in practice, 
 in a declaration in debt upon an award, and in the replication in 
 ^ 321 debt on l)ond conditioned *for performance of an award, to aver 
 
 that the defendant had notice of the award, such averment i« 
 unnecessary, because the defendant ought to take notice of the 
 award, unless it was expressly provided in the submission that 
 the award should be notified to the panics, when notice must 
 be alleged. (/) 
 
 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 his attaining that age need not be alleged, because it 
 is as notorious to the one as to the other (w?) On the sameprin^ 
 ciple, 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 ;(n) and in an action on a promissory note by the 
 indorsee against the drawer, notice of the indorsement need 
 not be averred ;(o) and if the defendant's promise were to pay on 
 the performance of a certain act, even by the plaintiff himself to 
 
 (/i) 2 Saund. 62. a. n. 4. Cro. Jac. {h) Com. Dig. Pleader, C. 75. 
 
 432. Hardr. 43. Com. Dig. tit. (/) 2 Saund. 62. a. n. 4. llardr. 42. 
 
 Pleader, C. 73. 5 T. R. 621. 624. II Com. Dig. Pleader, C. 75. 5 T. R 
 
 :Mod. 48. 621. 624. 
 
 (J) Doug. 679, 680. (w) Hard. 42. 1 1 Mod, 48. 
 
 0) 1 Saund. 117. n. 2. 2 Saund. («) I Saund. 116. 
 
 82. a. u. 4. Freem. Rep. 285. (o) 1 B. k P. C25.
 
 OF THE DECLARATION. 521 
 
 the defendant, or a stranger, there are cases in which it has been IT. If.i pr.ru- 
 
 decided that notice of the act need not be averred, because Fimidily, the 
 
 Ciiupe of ac- 
 
 i)y the terms of the contract the defendant engaged to take no- v<>\i 
 tice of it at his peril ; as if the dcfendiint contracted to ])ay on 
 the marriage of the obligee uith ^ i{/>) and in the *casc of a * 322' 
 
 precedent condition to be performed by the plaintiff to the de- 
 fendant in person, notice of the plaintiff's performance need not 
 be averred, because it is implied. (y) 
 
 Where notice is necessary, it ought to appear that it was 
 given in due time, and to a proper person ;(r) but where a spe- 
 cial request is averred, notice will sometimes be presumed ;(•«) 
 and the absconding of the party or other circumstances may 
 be stated as an excuse for the want of notice. (0 The oniis- 
 sion of an averment of notice when necessary, will be fatal on 
 demurrer, or judgment by default ;(w) but may be aided by a 
 yerdict,(x; unless in an action against the drawer of a bill, 
 when the omission of the averment of notice of non-payment by 
 the acceptor is fatal even after verdict. (?/) 
 
 Whenever it is essential to the cause of action, that the Requcsf. 
 plaintiff should have requested the defendant to perform his 
 contract; such request must be stated in the declaration, and 
 proved.(z) It has been observed, that if it had been held that 
 a request was essential in all cases, many vexatious actions 
 might be avoided, but there are a variety of instances in which 
 it is settled that no request is necessary anterior to the action, 
 and consequently need not be stated in pleading ;(«) *thu3 * 32o 
 
 where the declaration is upon a contract to pay a firecedent debt 
 or duty, as in the case of the common counts for goods sold, 
 >vork. and labour, money lent, &:c, no request need be stated or 
 
 (/)) 2 Rulstr. £54, Com. Dig. (.r) 1 Su-h. 214. 1 Sauud. 228. m. 
 
 Plea(ter, C. 75. (_i/) Doug. 679. 
 
 (9) Com. Dig. Plciuler, C. 75. (:) As to requests in general, see 
 
 (»•) III. ibid. C. 74. , Cora. Dig. Pleader, C. 69 to 73. 1 
 
 (s) Ci-o. Jac. 2-28, 229. I B. 8c P. Saund. 33. n. 2. I Stra. 8S. 2 Ventr. 
 
 626. 3 BuLsir. 320, 327. 7i. 
 
 (0 Cliilty on Bills, 2d. edit. 345. n. («) 1 B. k P. 59, 60. Cro. Eli/,. 
 
 u I SaJk. 214. Via. Abr. Notice, 548. Post. Chitly on Bills, 2(< 
 
 A. 2. edit. 183, 1^4. 
 (m) Cro. Jac. 432.
 
 325 OF THE DECLARATION. 
 
 II. Its parts, proved ;(b) and though formerly a distinction was made be- 
 Fourthly, the tween a promise to pay a precedent debt, and one to become 
 *ause of ac- i j i 
 tion. due on a subsequent event, that distinction is now overruled; 
 
 thus where the declaration stated that the defendant in con- 
 sideration that the plaintift' ivould make him a set of sails worth 
 45/. promised to pay^so much for them on request, it was decided 
 that no request to pay was necessary to be stated, because on the 
 making the sails, the money immediately became due, and that 
 the case before the court differed from those where the payment 
 is to be to a third person, or where an award directs a request ;(c) 
 and though a distinction was fortnerly taken between a promise 
 by the defendant to pay a debt, originally his own, and that of 
 a third person, that distinction has been since overruled,(f/) 
 And in these cases it appears to be immaterial whether or not 
 the defendant's contract were expressly laid to be to perform 
 the same on request. (e) 
 
 But when by the express or implied terms of the contract, 
 it was incumbent on the plaintiff, before the commencement 
 of his action, to request the defendant to perform his contract, 
 * 324 such request being as it were a condition precedent, *must be 
 averred. (y) Thus in an action for not delivering a horse. Sec. 
 sold by the defendant to the plaintiff, or for not finding timber 
 for repairs, the declaration should allege a special request to 
 deliver the same. (5') So if the contract were to deliver up a 
 bond to be cancelled on request ;(/i) or if an award directed 
 the defendant to perform some act on request, (i) or if the de- 
 fendant contracted as surety to pay the debt of a third person 
 on request, in these cases the request must be alleged and 
 proved. (7) 
 
 In point of form there are in fileading two descriptions of 
 requests, the one termed a special request, the other the licet 
 
 (6) 1 Siiurjf]. 33. k id. n. 2. Bull. 211. 151. 1:31. 1 Saiind. 32, .33. 5 T. 
 
 N. P. 151. K. 409. 3 Bulstr. 2tl'. 
 
 (c) iStra. 8S. 2 Ventr. 75. Cro. (g) 5 T. It. 409. Sir W. Jones, 
 Jac. 523. 56. 1 East, 204. Com. Dijj. Plcad- 
 
 (d) 1 Stt-a. 8'.). Cro. Jac. 523. cr, C. f)9. 
 
 (e) 1 Stra. 8S. 1 Saund. 33. Cro. (h) 3 Bidstr. 297. 
 Eliz. 54S ace. Cro. Jac. 523. 183. (/) 1 Saund. 32. 
 
 Owen, 109. Cro. Eliz. 85. co>itra. ( /) Cro. Jac. 500. Owen, 109. 
 
 (/) Com. Dig. ricader, C. 69.— 1 Saund. 32. n. 2. Sed vide 1 Stru. 
 
 88, 89.
 
 OF THE DECLARATION. 524 
 
 sa/i!u.i re(/uisitus, or » although often requested so to do." — //. -ft* parts. 
 When an actual request is essential to the support of the ac- ^^^^^^%' ^!^^, 
 tion, a special request must be stated, and it must be shewn lion: 
 by and to whom the same was made, and the time and place 
 of making it, in order that the court may judge whether th^ 
 request were sufficient •,(k) and the omission of such special 
 request would be bad on a general demurrer :(/) and it has 
 been decided, that it would not be aided by verdict ;(wO but 
 from the principle dcducible from other cases, it should seem 
 that a verdict would at common law aid the defect. («) TfiiC 
 licet *sa/iius recjiddtus, or " although often recjuested so to do," ^ 325 
 
 without stating the time and place of request, though usually 
 inserted in the common breach to the money counts, is of no 
 avail in pleading, and the omission of it will in no case vitiate 
 the declaration ;(o) and, therefore, where, in a declaration up- 
 on a note payable four months after date, it was objected in 
 error that the request to pay the money in the note, \vas 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 bringing the action was a re- 
 quest in law.(//) 
 
 The breach of the contract being essential to the cause of Brearfi; 
 action, must in all cases be stated in the declaration. (y) When 
 the special count in assuitifisit is merely for a money demand, 
 and other common counts are subjoined, the usual breach in 
 the conclusion of the declaration stating the request to pay, to 
 have been after the money on the special count was due, will 
 suffice ; and in declarations on bills of exchange and promis- 
 sory notes, it is not usual to state any other breach than that 
 at the end of the common counts. (r) But when the breach 
 
 (A-) I Stra. 89. Com. Dig. Plead- (;i) I Stra. 89. 214. 1 WUs. 3J. 
 
 €T, C. 69, 70. 8ie. 1 Sauml. 33. 5 7 T. R. 522. 1 Saund. 22S. n. 1. 
 
 T. R. 409. (o) 2 H. Bl. 131. 1 B. k P. 59, CO, 
 
 (/) 5 T. R. 409. Plowd. 128. b. Haidr. 38. 72. 
 
 (m) 3 Bul-str. 299. Cro. Eliz. 85. (/>) 1 Wils. 33. 1 B. & P. 59, CO. 
 
 Sir W. Jones, 56. 1 Saund. .33 n ',' (9) Com. Dig. Pleader, C. 44, kc 
 
 Com. Dig. Plcadw, C. 6?. {r\ \ M its :■.?•
 
 325 OF THE DECLARATION. 
 
 JI. Iti parts, is not merely the non-payment of money, it is usually stated 
 
 Pourtliiy, the in each special count. The breach must *obviously be orovem. 
 
 cause ot ac- » y o 
 
 j5ion. ed by the nature of the stipulation. It should be assigned in 
 
 3l6 the words of the contract, either negatively or affirmatively, or 
 in words which are coextensive with the import and effect of 
 it.(/) Where the contract was specific, to door 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 shew 
 a sufficient record, it is enough to allege that the defendant 
 did not shew a sufficient record, thougii issue cannot be joined 
 upon it, because sufficiency of matter of record cannot be tried 
 by a jury ; but the defendant, on such breach assigned, may 
 plead that he shewed such a record, and upon demurrer the 
 court will judge wheilicr it be sufficient^?/) So in covenant 
 by an apprentice for not finding victuals and other necessaries 
 in the words of the contract, is sufficient ;(t;) and a breach in 
 the words of the covenant, for not repairing without enume- 
 rating the particular dilapidations, will suffice. (w) And in 
 general if a breach be assigned in words containing the sense 
 and substance of the contract, though they are not in the pre- 
 cise words of such contract, it ^s sufficient ;(x) as if the de- 
 fendant's promise were to guaranty the payment of the debt 
 of a third person, a breach that the defendant did not pay the 
 debt will not suffice :{]/) so if a policy insured a ship against 
 * 327 ^^^^ barratry of the captain, and the breach *is assigr^ed that 
 the ship was lost by the fraud of the captain, it is sufficient. (z) 
 If the contract were in the disjunctive^ the breach ought to 
 be assigned that the defendant did not do the one act or the 
 other ; as on a promise to deliver a horse by a particular day, 
 of pay a sum of money ;(a) and if a covenant be " that the 
 " defendant and his executors and assigns should repair," a 
 breach for not repairing ought not to be in the conjunctlve.(6) 
 
 (0 Com. Dig. Pleader* C 45, 46, (x) Com. Dig. Pleader, C. 46. 
 
 4r, 48, 49. 1.1. 2. V. 2. 2 Saund. (w) 1 Sid. 178. 2 Roll. 738. 1. 15. 
 
 ISt.b. c. (j) 1 Su-a. 581. 
 
 («) Yolv. .SO, 40. Com. Dig. Plead- (") 1 Sid. 440. 447. Hardr. 320. 
 
 tr, C. 45. Cora. Dig. Pleader, C. 1 Stra. 231 
 
 {v) 3 Lev. 170. Ante, 45. 
 
 >>•) Lutw. S29. (*) Cro. Elia. 348. I Stra. 22S.
 
 OF THE DECLARATION, 327 
 
 But in assigning the breach of a covenant or contract to pay or //. Its pane. 
 « cause to be paid" a sum of money, it is sufficient to say that ^ y"''*''[^-' *''J^ 
 the defendant did not pay, omitting the disjunctive words, for tion. 
 he who causes to pay, pays ;(c) and a breach that the defend- 
 ant did not pay several persons is sufficient, without adding 
 'the words, or either of them.((i) A distinction has been taken 
 between a contract to perform a thing to a man or his assigns, 
 and by a man or his 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 ;(e) but there 
 appears to be no foundation for this distinction, and where the 
 action is between the original parties to the contract, as no as- 
 signment will be presumed, it will be sufficient to state that 
 the defendant did not perform the act to the plaintiff, without 
 mentioning the *assignee or heir ;{/") but if the action be by * 328 
 
 or against an assignee, heir, or executor, the breach should 
 then be in the disjunctive ; and a declaration 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 demurrer, though aided by ver- 
 dict.(5-) 
 
 If the breach vary from the sen^e and substance of the con- 
 ti'act,*and be either more limited or larger than the covcn^mt, 
 it will be insufficient -yji) as in covenant to repair a fence, ex- 
 cept on the west side thereof, a breach that the defendant did 
 not repair the fence, without shewing that the want of repair 
 was in other parts of the fence than on the west, is bad on de- 
 murrer, though aided by verdict. (/) So if the coven..nt were 
 for quiet enjoyment, without lawful disturbance, a breach 
 merely stating that the plaintiff was distuibed is insufficient, 
 for it should be that he was legitimo modo disturbed in the 
 words of the covenant, or otherwise the plaintiff should shew 
 
 (c") 1 Stra. 231. 1 Saund. £35. n. 6. {g") 1 Ld. Ravm. '2S4. 1 Veiitr 
 
 ((/) Id. ibid. 119. 2 Rich. C. P. '293. 
 
 (e) 1 Salk. 139. 5 Mod. 133. (/z) Sir T. Jones, 1-25. 
 
 (/) 1 Stra. 228. (?) Cora. Dig. tit. Pleader, C. M. 
 
 Vol. L [ 30 ]
 
 328 OF THE DECLARATION". 
 
 II. lis parts, by whom he was disturbed, and how.fA) So where the decla- 
 Foiirililv, the ration is upon a covenant f^r 8:ood tiile, it ■should be shewn that 
 
 cause ol ac- . , • -^ 
 
 tioii. the person evicting* had a lawful title before, or at the time of 
 
 the date of the grant to the plaintiff, and an averment that he 
 had a lawful title, without this c]ualification, is too general and 
 bad after verdict, for it will be intended that the title of the 
 
 * 329 person entering is *derived from the plaintiff himself. Bui it 
 
 seems, that the j)haiuiff is under no necessity of setting out the 
 title of the person who entered upon him, because he is a 
 stranger to it, it being considered sufficient to allcsre generally, 
 that he had a lawful title before, or at the time of the lease or 
 conveyance to the plaintiff.(A:) 
 
 On tiie other hand it is injudicious, unnecessarily to varronv 
 the breach. Thus, where the breach of covemait was assi-^n- 
 ed, that the defendant had not used the farm in a husbanolike 
 manner, but on the contrary had committed wasie^ it v/as held 
 that the plaintiff could not give evidence of the defendant's 
 using the farm in an unhusbandlike munncrv if such misoontluct 
 did not amount to waste> though on the former words of the 
 breach such evidence would have been admissible.;/) 
 - The breach in general should be certain and express, smd a 
 general statement, that the defendant has not perfojrned his 
 agreement or promise, is bad on demurrer, though aided by 
 verdict. (?«) A distinction has been taken with regard to the 
 degree of certainly between an action on a bond conditioned 
 for the performance of covenants, and an action of covenant ;cn) 
 however, no such distinction now prevails ;(o) and 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 vo- 
 luntary contributions as he should collect for the use of the 
 
 * 530 chaiily, the defendants *pleaded general performance, and the 
 
 plaintiffs replied, that B R had received divers sums, amount- 
 ing to a large sum, viz. lUO/. from divers persons, for divers 
 voluntary contributions for the use of the said charity, which 
 
 Xk) 2 Saund. ISl. b. Com. Dig. (w) Com. Die;. Pleader, C. 48. 
 Plca.'er, C. 4". 49. Skin. 344. 4 Mod. 188. 3 Lev. 319. 
 
 {k) -.' Saund. 181. n. 10. Com. Dig. («) 1 S:i!k. 1,39. 1 Lev. 94. 
 Pleader, C. 47. 49. (o) See 1 B. k P. 642. 
 
 (0 3 T. R. 307. 637.
 
 OF THE DECLARATION. 3.30 
 
 he had not accounted for or paid over, &c. it was held on spc- //. jts pam. 
 cial demurrer, that the replicadon was sufficiently certain \(fi^ F«'>itl'ly) the 
 foi- it is a general rule ui pleading, that where any matter tends Uon. 
 to j^reat prolixity, a concise manner of pleading it may be 
 admitted: and wiiere the breach lies more in the defendant's 
 thai) the piain'ift's knowledge, less particularity is required. (v) 
 
 By the common law, in an action of covenant, the plaintiff 
 was at liberty to assign breaches of each of the covenants in 
 the iiidcucurcf, S:c. in order to increase the damages ;(r) but in 
 an action upon a bond, the plaimitf could assign only one 
 breach ot' the condition, for if heassigried several breaches, the 
 decluration was bad for duplicity, because the bond was for- 
 feited by the breach of one covenant as much as of several co- 
 venants ; but now by statute, cO the plaintiff" is at liberty to as- 
 sign several l)reaches of the condition of a bond, and it is fre- 
 quently expedient to state the same in the declaration. (u) Still 
 however, two breaches of tlie same specific stipulation cannot 
 be assigned in one count ;(z') though where the defendant's 
 contract was general, as by a tenant to observe the due course 
 of husbandry, *tl:e declaration may state various breaches of * 331 
 good husbandry. •7i') Where seveial breaches of the condition 
 of a bond are assigned under the statute, it is usual to allege 
 that they are assigned by virtue or in pursuance of the sta- 
 tute \{x) but this seems unnecessary, the statute being a 
 public law, and the assignment of several breaches a matter of 
 right without the leave of the court. 
 
 In point of form it is usual in assumfisit to introduce the 
 statement of {he particular breach, with the allegation that the 
 defendant contriving r.nd fraudulently intending, craftily and 
 subtly to deceive and defraud the plaintiff, neglected and refu- 
 sed to perform, or performed the particular act, contrary to the 
 previous stipulation. But this introduction is unnecessary, the 
 gist of the action of asfiumjisit being the injury sustained by the 
 plaintiff by the privation of his right, without relation to the 
 
 (/<) 8 T. R. 403. 1 R. k P. 640. n. 2. See the forms, vol. 2. 15.3, 154 
 
 (7) 8 T. ){. 462. 1 Lutw. 421. (r) Com. Di- Pleader, C. 33. 
 
 \r) 2 Co. 4. a. 1 Saund. 58. b. (-u;) 4 E.ist, 154. vol. 2. 135. 
 
 (s) 1 Saund. 58. n. 1. Com. Dig. (x) Com. Dig. Pleader, 2. V. 2. 1 
 
 PUader, C. 33. H. Bl. 275. 278. 1 \Vils. 219. Covvp 
 
 (0 8 k 9 W. 111. c. 11. 500, 501. Andr. 108 
 («) 1 Sauiid. 58. n. 1. 2 Saund. ISr.
 
 331 OF THE DECLARATION. 
 
 //. Its parts, defendant's fraud. (i/) And in declarations against a peer, the 
 Fourthlv, the imputation of fraud should be omitted. fz) 
 
 cause of ac- ' *■ 
 
 tion. The insufficiency of the breach will in general be aided by 
 
 the common law intendment, that it is not to be presumed that 
 either the judge would direct the jury to give, or thi«t the jury 
 would have given, the verdict without sufficient proof of the 
 
 "^ 332 breach of contract ;(a) and 'therefore, where in an action 
 against husband and wife, on the covenant of the feme whilst 
 sole to perform an award, it appeared that the award was made 
 after the marriage, which was a legal revocation of the arbi- 
 trator's authority, and consequently the breach was improperly 
 assigned in the non-performance of such award, it was decided 
 that the pluintiffwas entitled to recover, because it appeared that 
 the /tnit 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. (6) We have, how- 
 ever, seen, that in some instances a defective statement of a 
 breach, as of a covenant for quiet enjoyment, will be fatal even 
 after verdict. (f) 
 
 Damages. Such damages as may be presumed necessarily to result from 
 
 the breach of contract, need not be slated in the declaration ; 
 but in other cases it is necessary to state the damages arising 
 from the breach of contract, specially and circumstantially, in 
 order to apprise the defendant of the facts intended to be pro- 
 ved, or the plaintiff will not be permitted to give evidence of 
 such damage on the trial. (i) And in some cases where the 
 plaintiff' seeks to recover damages, he must declare specially, 
 , though lie might have recovered the principal part of his de- 
 
 mand under a common count : thus, in an action against the 
 vendor of an estate, for not making a good title to or convey- 
 
 ^ 333 ing the same, only the deposit money can be recovered *under 
 
 the count for money had and received, and if the purchaser 
 
 {y) 6 East, 443. (c) 2 Saund. 181. n. 10. And see 
 
 (z) Imp. K. B. f)th edit. 526. 1 Sid. 440. ante, 528. sed qu. 
 
 (a) Sir T. Jones, 125. 1 Salk. 140. (rf) As to damages in general, see 
 
 4 iSIod. 189. b. Skinner, 344. 5 East, Vin. Abr. tit. Damages, and Saver's 
 
 pro, 271. Com. Dig. Pleader, C. 48. Law of Damages. And see post, as 
 
 1 Saund. 228. n. 1. to the statement of damages in ao. 
 
 (6) 5 East, 270, 271. tions for torts
 
 OF THE DECLARATION. 333 
 
 proceed for interest and expenses, he must declare specially, U J'-' /""•'•» 
 staling such expenses, and the loss arising from the not having f^u"c*^'oV' alf- 
 ihe use of the deposit money, Scc-Ce) The damages should be t'^"- 
 stated according to the fact of the case, but no inconvenience 
 will ai'ise from the statement being much larger than the proof: 
 thus in a declaration on a policy of insurance stating a total 
 loss, a partial loss may be recovered.(/) In stating the dama- 
 ges, care must be taken that no part thereof appears to have 
 accrued after the time to which the declaration by its title re- 
 fers ; for though the mistake could not be taken advantage 
 of by demurrer, yet after a general verdict it would be fatal, 
 unless the damages were laid under a scilicct.{g) 
 
 The common counts in assumjisit are frequently sufficient C'^-mmon 
 
 counts. 
 
 Without any special count ; and even where the declaration con- 
 tains a special count, it is in general advisable to insert one or 
 more of the common counts ; for though it is a rule, that 
 when there was an express contract the plaintiff cannot resort 
 to an implied one,(A} yet he may, in many cases, recover on the 
 common count, though there was a special agreement ; *and *• 534 
 such a count may frequently save a verdict where the evidence 
 may vary from the special count ; thus, if the plaintiff declare 
 specially as having built a house according to an agreement, 
 if he fail to prove that he has built it pursuant to the agree- 
 ment, he may still, in some cases, recover on the common count 
 for the work and labour actually done.(?) And where a pro- 
 missory note, upon an improper stamp, has been taken in pay- 
 ment of a debt, the plaintiff will be at liberty to resort to the 
 common counts appropriate to the debt.(y) But where the de- 
 mand is founded upon a written agreement, which ought to be, 
 
 (e) See 4 Esp. Rep. 223. 1 B. St 80. 85. 6 T. R. .3-25. 7 T. R. 243. 1 
 
 P. 306. 2 Bl. Rep. lOrS. Post, vol. Stia. 648. Peake, 103. 3 B. k P. 
 
 3. 125, 126. 247. 6 East, 560. There is no »lis- 
 
 (/) 2 Burr. 904. 1 Bl. Rep. 198. tiiiction in pka<iing between an ex. 
 
 Jtlyrshall on Insurance, 629. Saver pre.ss and implied promise, 
 on Damages, 45. {i) Per Sir J. Mansfield, 1 Xev 
 
 (j) 2 Saund. 171. n. 1. 3 Lev. 315. Rep. 355. Bull. N. P. 139. Pavite 
 
 «nte, 259. v. Bacomb, Dou^. 651. 
 
 (/») 2 T. R. 105. 640. 3 East, 78. ( j) 1 East, 58.
 
 334 OF THE DECLARATION. 
 
 1 
 
 II. lis parts, but IS not, Stamped, the plaintiff will not be permitted, in evi- 
 
 Fourthly, the dcnce, to resort to an implied contract, in-order to avoid the pro- 
 cause of ac- . 
 tion. duction or such express agreement. (A:) 
 
 Coinmrm counts in an action of assumfisit are founded on ex- 
 press or implied promises, to pay money in consideration of a 
 Jirecedent debt.) and are of four descriptions : 1st. The indebitU' 
 (us assumpsit ; 2dly. The quantum meruit t 3dly. The quantum 
 valebant ; and, 4thly. The account stated. 
 
 The indfbitatus assum/mt count^/) states, that " the defend- 
 
 « ant on the day of •■ ■ -, at in the county of ,(?«) 
 
 * 335 " '^'^^ indebted to *the plaintiff in a named sum of money, for 
 " real property 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 afterwards, to wit, on the 
 " day and year aforesuid, at .- aforesaid, in the county 
 
 " aforesuid, undertook and faithfully promised the plaintiff to 
 " pay him the said sum of money, when he, the said defend- 
 " ant, should be thereunto afterwards requested." 
 
 The quantum meruit count, instead of stating that the de- 
 fendant was indebted to the plaintiff in a certain sum of 
 money for work, &c. as in the indebitatus count, states, '' and 
 *' whereas also afterwards, to wit, on, &c. aforesaid, at, 8cc. 
 " aforesaid, in consideration that the plaintiff, at the request 
 " of the defendant, had sold and delivered, Sec. {stating the 
 " subject matter of the debt according to the fact ^ and usually as 
 « in the indebitatus count) he the said defendant undertook to 
 " pay the plaintiff so much money as he therefore reasonably 
 " deserved to have ; and the count then avers, that the plain- 
 *' tiff deserved to have a named sum, whereof the defendant 
 
 (fc)2B.& P. 118. 3 Esp. Rep. bill of exchange, fsc. preceding the 
 
 213. 1 New Rep. 273. ace. 7 T. R. common counts, it is u.sual and proper 
 
 241. contra. in tlie first common count to lay. the 
 
 (!) See the form, vol. 2. 5. jmd as day alter the bill was due, or other 
 
 to the definition of the term indcbita- special c.iuse of action T,as complete : 
 
 tits assumpsit, sec ante. and in the subsequent counts and 
 
 (jn) The time and place are not breach to refer to the laet nientioued 
 
 material in the common counts, but day. 1 Wils. 33. 
 vhen there is a special count on a
 
 OF THE DECLARATION. 335 
 
 " afterwards, to wit, on, See. aforesaid, at, Sec. aforesaid, had II. Its parts. 
 
 • » Fourlhlv, the 
 
 The quantum valebant count is, in general, confined to the tion. 
 »ale of goodn, and instead of the cjuantum meruitf states, that 
 " the defendant promised to pay so much as the goods *vvere * 335 
 
 " reasonably worth ;" and concludes with a corresponding aver- 
 ment, that they were reasonably worth a named sum, and that 
 the dulendant had notice thereof. In other respects this count 
 is similar to the quantum meruit. 
 
 The account stated^ alleges, that " the defendant on, &c. 
 " atorcsaid, at, Sec. aforesidd, accounted with the plaintiff of 
 " and concerning divers sums of money before then due from 
 " the defendant to the plainliir, and then in arrear and unpaid, 
 <' and that upon such accounting, the defendant was found to 
 " be in arrear to the plaintiff in a named sum, and that being 
 " so found in arrear and indebted, the defendant in considera- 
 " tion thereof undertook and faithfully promised the plaintiff to 
 " pay him the same on request." 
 
 Upon these counts the common breach is, " Yet the said de- 
 " fendant, not regarding his said promises and undertakings, 
 " but contriving, and craftily and subtly intending, to deceive 
 " and defraud the said plaintiff in that respect,(?7) hath not 
 " (although often requested so to do)(o) as yet paid the said 
 « sums of money, or any part thereof, but hath wholly neg- 
 " lected and refused, and still neglects and refuses so to do, 
 " to the plaintiff's damage of a named sum, and therefore, he 
 " brings his suit," Sec. which breach necessarily varies in ac- 
 tions by and against surviving partners, husband and wife, exe- 
 cutors and assignees, &c.(/2) 
 
 l-'orinerly these general counts for work, goods sold. Sec. 
 were not in use ; and Lord H(.lt is stated *to have said, that he -^ ^ 307 
 was a bold man who first ventured on them ; but they are now 
 much more frequent than the special counts, where the action 
 is for any money demand. (y) It is not necessary to state the 
 
 (n) Ante, Sr.l. (9) 2 Stra. 9:T3. 1 Saund. 269. n. 
 
 (o) The printed forms generally 2. 2 Saund. 12'2. a. n. 2. 350. n. 2. 374. 
 contain a special request, but tliis is n. 1. Fitzg. 302, Com. Dig, tit. As- 
 unnecessary. 1 Wiis. 3.'i. sumpsit, 11 3. 
 
 ip) See ante, 328. and vol t? 
 45 10 70.
 
 337 OF THE DECLARATION. 
 
 If. Its partx. particular work done, or goods sold, Sec. for the only reaSoYj 
 louitlilv, the ^yj , jijg pluiiiiitr is bound to shew in what respect the defend* 
 lion- ant is indebted, is, that it may appear to the court that it is not 
 
 a debt of record or specialty, but only on simple contract ; and 
 any general words, by which that may appear, are sufficient ;(r) 
 and unnecessary statements, such as the local situation of the 
 premises in a count for use and occupation, should be avoided, 
 as a variance might be fatal. (s) Several distinct debts or con-* 
 tracts may be included in one count of this description, and 
 the plaintiflT will succeed firo tanto^ though he only prove one 
 of such contracts. (f) And under an indebitatun count the plain- 
 tiff 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 ;(m) and it is set- 
 tled, that under a quantum meruit count the plaintiff cannot re- 
 * 338 cover if the *goods were sold. Sec. at a certain price. (r) In 
 
 each of these counts, except that for money had and received, 
 and the account stated, it is necessary to allege that the con- 
 sideration of the debt was perlornied at the defendant's request^ 
 though such request may in some cases be implied in evi- 
 dence \{x) and it must also be stated that the defendant promised 
 to pay a specific sum or so much as the plaintiff reasonably de- 
 served, avei'ring in the latter case what sum is due.(2/) As the 
 common counts are so useful in practice, it may be advisable 
 concisely to consider the particular applicability of each. 
 
 The common counts relating to real property are for the 
 price of a freehold, copyhold, or leasehold estate, 8cc. sold and 
 conveyed to the defendant, where there has been no contract 
 
 (r) 2Saund. 350. ii.'i. .SrS. 2 Lev. 2i5. Yelv. 175. I Brownl. Ent. 71. 
 
 l.)o. CHitli. '270. 2 Wils. 20. I 2 Bl. Rep. 910. Buub. 262. tie a the 
 
 Mod. 8. 1 Sid. 425. B:ie. .\br. tit. form, post, vol. 2. 43. 
 
 Assum|)sit, F. Ld. Raym. 1429, (h) 2 Saund. 122. a. n. 2. Sed 
 
 1430. 12 Mod. 511. By special cus- vide 3 Bl. Com. 295. 
 
 tfun even tlie cause of tlie debt need (n) 1 Stra. C4S. 
 
 riot be shewn. 2 S Ira. 720. 1 Saiind. (x) I Saund. 264. n. I. 2 East, 
 
 CS. n. 2. 500. 2 Stra. 9o3. 3 Burr. 1071. ^ 
 
 (s) 1 Esp. Rep. 273. 5 Esp. Rep. B. 8c P. 247. 
 
 31, .32. G E.1- 1, 348. 351 . (z/) 2 B. k T. 321 
 
 (0 2 Sauud. 122. ii. 2. Cro. Jac.
 
 OF THE DECLARATION. 33$ 
 
 under seal for the payment of the price ;(z) and in these counts, JI. Its parts. 
 
 und in that for use and occupdiion of land, Sec. 'which is given FninUii\ , the 
 
 cause ol ac- 
 hy Statute 1 1 Geo. II. c. 19. where the demise was not by deed,) Uim. 
 
 it is not necessary to stale the locul situation of the premises. (a) 
 And if the (iemise were to the defendant, a count in the com- 
 mon form is sufficient, although he did not occupy the pre- 
 mises himself, but merely by his under-ttn;int.(ii) 
 
 Where f^-ojds have been sold and actually delivered to the 
 defendant, though under a special agreement, it is in general 
 sufficient to declare on the indebitatus covmt, provided the con- 
 tract was to pay in money, and the credit be expired ;(c) but 
 where the *contract was to pay for goods partly in money and * 359 
 
 partly by the delivery of other goods in exchange, (c) or to pay 
 by accepting a bill of exchange, and the whole credit is not 
 elapsed, it is necessary to declare specially. (ci) So on a colla- 
 teral undertaking to p'.y the debt of a third person, the contract 
 must be specially stated ;(e) and it is usual where the defend- 
 ant has refused to accept goods purchased, to declare special* 
 ly ;{/) and at least a count for goods bargained and sold omit- 
 ting the statement of the delivery, should be added, which may 
 suffice i(g) but where the sale was to the defendant, and the 
 delivery to a third person, at his request, the statement that the 
 sale and delivery were to the defendant, being according to the 
 legal effect, will suffice. (A) 
 
 With respect to debts for -work and labour or other persona! 
 services, it is a rule that however special the agreement was, 
 yet if it was not under seal, and the terms of it have been 
 performed on the plaintiff's part, and tlie remuneration was to 
 be in money, it is not necessary lo declare specially, and the 
 
 (s) Post, v(,l. 2. 7, 8. (O 1 Saiiiiil. 211. a. b. Post, vol. 
 
 («) 6 East, .34S. I K-]i. Rep. 273. '2. 85. 
 
 1 B. & P. '2i5. Post, vril. -2. S. (/) Post, vol. 2. 97. 
 
 (6) 8 T. II. 317. (^) 1 East, 194. Peake, C. N. P. 
 
 (c) 1 H. Bl. '287. Fitz.2;. 302. 1 R. 4l. 7 T. 11. 67. Campb. N. P. 
 
 k P. 397. 1 New Hep. 330. 4 East, 109. Post, vol. 2. 17. 
 
 75. 147. (A) 8 T. R. 328. 2 Show. 410. 
 
 (c) 1 M P.:. 287. B.il!. N. P. 136. 1 Stra. U7. 3 Wils. 
 
 (</) Ante, 302. 33'J. 
 
 Vol. I. [ 31 ]
 
 339 ^^' 'A'il^ DECLAUATIOX; 
 
 jf jt!i partH. common indebitatus count is sufficient. (/) But if the contract 
 Foiiitlily, tilt- has not been excculecl by tlie plaintitV. although the defendant 
 
 cause oi' iic- . i i . • i • ^ , i \ 
 
 lion. prevented his perlormunce, the declaration must be special. (A} 
 
 * 340 Where *the demand is for wages, fees, or work and labour in par- 
 
 ticular professions. Sec it is usual to insert a count stating con- 
 cisely the nature of tlie service, &c.(/) iiut the common count 
 for work and labour is in general suflkient.(w) 
 
 Money lent to the defendant himself may be recovered un- 
 der the common count for mojicy lent, though delivered to 
 another person at his request ;(«) but if money be lent to a 
 third person, at the defendant's request, and both be liable to 
 repay the money, the one on the loan, and the other in respect 
 of his collateral engagement, which must be in writing, the 
 count against the latter must be special. (o) 
 
 The count for money /mid is proper where money has been 
 paid at the express request of the defendant, and in some cases 
 even without suoli re luesl ;(/<) though the request should al- 
 ways be stated in the pleading. ;f/) But where the sum which 
 the plaintiff has paid is in the nature of costs, or cannot be con- 
 sidered as strictly paid for the use of the defendant ;(r) or where 
 the i)laintiir has not actually made a payment in money, but 
 has merely been obliged to give security, the declaration must 
 be special for not indemnifying, &c.(s) 
 
 .^ Where money has been received by the defendant *which 
 
 * o41 . . . 
 
 ex aquo et bono^ ought to be paid over to the plaintiff, the ge- 
 neral principle has been that it may be recovered by the plain- 
 tiff, under the count for money had and received to his use.{t') 
 In general to sustain such cottnt, the defendant must actually 
 
 (0 Fitzg. 30-2. 1 Wils. lir. Bull. (o) 1 Suund. 211. a. b. 1 Salk. 2S. 
 
 N. P. 139. 1 B. kP. 139. 7 T. U. Cartli. 4-i6. 2 Wils. 141. 3 Wiis 
 
 181. 4 East, 147. 1 New Rep. 104. 388. 2 Bl. Bep. 872. 2 T. R. 81. 
 
 Id. 3.i5. fi East, 5G9. 1 New Rep. (/>) 8 T. R. 310. 614. 
 
 330. 2 B. k P. o'^li. (7) 1 Saiind. 204. 11. 1. 
 
 (A ) 2 East, 145. 1 H. BI. 287. 4 (r) 5 Esp. Rep. 3. 4 Esp. Rep. 223, 
 
 East, 147. 1 New Rep. 330. 8 T. R. tUa 1 T. R. 201). 7 T. R 
 
 (0 2 Lev. 153. CartU. 276. 1 .Mod. 20i. 570. 1 'NMls. 188. 
 
 8. I Sid. 425. (.s) 3 East, 109. 
 
 (wi) 2 Wils. 20. 1 Xew Rep. 289. (0 2 T. R. 370. 2 Buit. 1012. 3 B. 
 
 2 SaiiiKi. 350. n. 2. 373. k P. IG'J 
 
 (n) 8 T. R. 3i:8
 
 OF THE DECLARAriON. 34 1 
 
 have received money^{u) though sometimes, such receipt will //. Jta parti. 
 be uresunied, till the contrary be nrovecl.(i^) in pieaciing, the l-'-^tuihiv il.ts 
 
 "1 . cause of ac- 
 
 money must be stated to have been received to the use ol the tion. 
 pel-son, who, at the lime of the receipt, and not merely at the 
 time of the action, wus legally entitled to it.(w) This count 
 18 sustainable in some cases, wiiere money has been received 
 tortiously wi:hout any colour of contract, or under pretence of 
 a contract not performed by the defendant ; although in general 
 a puny is not at liberty to declare in an action in form ea: coniraciu. 
 where there has been no contract express or implied. (r) 'i lius, 
 assignees of a bankrupt may declare lor money hud and recei- 
 ved, against a creditor who has levied his debt by 7^'. fa. after 
 the act of bankruptcy ;(?/) but they ought to declare in trover 
 for money paid by way of fraudulent preference, anterior to the 
 act of bankruptcy \izi and this rule is so far qualified that the 
 courts will not allow a colourable title to land, £cc. to be tried 
 under this form of action, but the plaintitV must declare iu 
 tort.(rt) 
 
 •Where a payment has been made on a contract which has ^ 342 
 been put an end to ; as where, either by the terms of the con- 
 tract it was iefi in the plaintiff 's power to rescind it, and he 
 does so, or where the defendant afterwards assents to its being 
 I'escinded, this count may be supported ; but if the contract 
 continue open, as it is technically termed, he can only recover 
 damages, and must declare specially ;(6) and where a horse war- 
 ranted sound turns out to be otherwise, the vendee must in 
 general sue on the warranty, and cannot maintain assumlisit for 
 money had and received to recover back the price ;(c) but 
 where a term of years is purchased, and tiie title turns out to 
 be defective, and no conveyance has been made, the deposit is 
 
 («) 5 Burr. 25S9. 1 East, 3. Dmg. 2 T. R. 144. Bull. X. P. 131. 6 T. 
 
 2:3. 4 T. 11. 687. 1{. 695. 68,3. 
 
 (v) Dou- 1.3S. 4 T. R. 6sr. 2 (c) 4 T. R. 21 1 . 1 Bl Rc^. lo i. 
 
 T. U. 370. 1 H. Bl. 2:59. 4 Esp. \n) Cowp. 419. 6 T. J{. 298. 2 
 
 Ucp. 204. 3 B. k l\ yy-i. I Eabl, Stra. 915. 2 II. Bl. 40S. 
 
 104. 3 East, 171. (6) 1 T. R. 133. 3 Lev. 364. 5 
 
 (w) 3 B. k V. 46.-;. East, 449. 1 New Rep. 351. 
 
 (.r) Ante, 99. 1 T. R. 38r». (c) 7 East, 274. 279. 1 T. R. 136. 
 
 (y) 2 Bl liep. 827. 3 ^^■ils. 304. IH.BI. 19. 3 Esp. Kep. 84. 4 Esp. 
 
 Rip. '.'6. 2 Esp. Rep. 6,)V.
 
 342 OF THE DECLARATION. 
 
 IT. Its parts, recoverable under the common count \{d) and where some act 
 
 Fourthly, the js to jjg done by each party, under a special ae:rccmcnt, and the 
 cause 01 ac- j i j i H 
 
 tion, defendant by his neglect prevents the plaintiff from carrying 
 
 the contract into execution, the plaintiff may recover back any 
 money he has paid under it, as received to his use ; but in 
 these cases, if the plaintifi" has received benefit in part from the 
 original contract, he should declare special iy.(£'") Under this 
 count only the sum really received can be recovered without 
 interest, and therefore if the plaintifi" proceed for interest, or for 
 expenses incurred in invesiigating the title to an estate, he 
 must declare specially. (/) 
 
 ^ 343 ^t i*^ advisable in all declarations in anfiutu/i.^il *for the reco- 
 
 very of a money demand, excepting against an inl<;nt, who can- 
 not state an account, to insert a counl 07i an account (ituicd.(g) 
 The acknowledgment by the defendant that a sum certain is 
 due, creates an implied promise to pay the amount, and it is not 
 necessary to set forth the subject matter of the original debt ;(//) 
 nor is the sum alleged to be' due material. (/) Where arbitra- 
 tors award a sum of money to be due, it may be recovered un- 
 d r this count, unless the submission was by bond.(/-) We 
 have seen that in actions by or against executors, administra- 
 tors, he. where six years have elapsed since the death of the 
 testator or intestate, &c. or if it be on any other account ma- 
 terial for the plaintiff' to avail himself of a promise or acknow- 
 ledgment since the death. &c. counts should be added on pro- 
 mises to or by the executor, &c. in that character, for other- 
 ivise such promise or acknowledgment cannot be given in 
 evidence ;(/) and this set of counts usually follows the com- 
 mon breach at the end of the first set of counts. (wO 
 
 (</) 6 T. R. 606. 3 B. k P. 166. (h) 2 Moi]. 44. 2 T. R. 4S0. 
 
 Pcake, 120. 5 Burr. 2639. 2 Esp. («) 2 Saund. 226. n. 3. 1 Bl. Rep. 
 
 Rep. 639. 65. 1 Bui-r. 9. 
 
 (c) 1 New Rep. 260. 351. 354. 5 (k) 1 Esp. Kcp. 194. 
 
 East, 449. 7 East, 274. (/) Ante, 204, 205. 7 T. R. 182. 
 
 (/) 1 B. k P. 306. 2 Sir W. B!. (m) See the forms, post, vol. 2. 45 
 
 1078. 4 Esp. Rep. 223. to 70. 
 
 (^) 2 Mod. 44. 1 T. R. 42,
 
 OF THE DECLARATION. 343 
 
 We have already considered when the aciion of d,-ht may //. jts parta. 
 
 be supported. (rt) In fruniine the declaration in this action, the Fomthly, t}.e 
 ' . ! . . c;iiuc of a<?- 
 
 generdl rc-iuisires and quaiiiies which have already been point- ti'.n. 
 
 ed out must be observed. (6) The particular parts may be con- I" ''^^ht. 
 
 sidered under the same arrangement as in as8u?}i/isit,ic) and 
 
 most of the rules to be observed in *framing declarations in * 344 
 
 that form of action equally govern in the action of debt, and 
 
 therefore it will only be necessary to point out the distinctions. 
 
 The title of the court and term, and the venue^ have already 
 been considered. (f/) The co)!imencement of the declaration pre- 
 ceding the statement of the cause of action, is similar to 
 that in assum/isU.(^e) except in the description of the form of 
 actioa ; and in the common pleas, or when the action is by 
 original, it states that the defendant was summotuci-, not attach- 
 ed, to answer the p!ainiifl'.(/} The debt demanded should re- 
 gularly be the aggregate of all the sums alleged to be due in 
 the different counts ; but a mistake in this respect will not be 
 a cause of demurrer, nor is it necessary to prove that the 
 debt amounted precisely to the sum stated to be due.'^) In 
 general, the declaration should be in the debet and detintt ; but 
 in actions by and against executors and administrators, it should 
 be in the dtiinet only, except in an action upon a judgment 
 recovered against an executor, suggesting a dwaatavit^ when 
 the d'^bet and drthiet is proper.(//) 
 
 The mode of stating the cause of action varies as in assumji- 
 sit according to the nature of the contract or matter declared 
 on ; which we have seen may be a simple contract, a specialty, 
 a record, or a statute (/) In debt on nim/Ue contract^ express 
 or implied, to pay money in consideration of a precedent delvt 
 or duty, the subject matter of *lhe debt is to be described pre- ^ r^ :- 
 
 cisely as in the common counls in assumjistt ;(j) but in point 
 oi iovm, ihe indebitatus, dnd (jua7itu7n meruil or valebant couxm, 
 
 (a) Ante, too ta 109. (g) 1 H. Bl. 249. A-Uc, 107, 108. 
 
 (6) Ante, '248 to 201. See ihe firms, vol. 2. 141. 
 
 (f) Ante, 261. (/;) Post, vol. 2. 14I. n. f. Bac, 
 
 (.'/) Ante, 2f)l to 285. Abr. Debt, F. 3 East, i. Com. Dig. 
 
 (f-) A.itP, 2S5 to 292. Pleader, 2. W. 8. 
 
 (/) Ante, 288. Post, vol. 2. 141. (/) Ante, 101 to 105. 
 
 .\uiJ see the forms. Sheet of/onm. (./) Sec the cases, Com. Di;^. Plead- 
 er, 2. W. 11.
 
 345 OF THE DECLARATION. 
 
 21. Its pcfrts. differ from those \n assumpsit. The indebitatus count states, 
 ri"**'''^' "'*" ^^^t the defendcint on, 8:c at, Uc. was indebted to the plaintiff 
 *^'"»- in a named sum of money for goods sold, or for work and labour, 
 
 8cc. precisely as in assumfisit ; and it is not necessary to set 
 forth the nature of the debt with more precision than in that ac- 
 tion ;(^") but in this indebitatus count, no promise is staled as in 
 assumpsit ;(/) and though 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 accrued to the plaintiff to 
 " demand and have the same from the defendant, being parcel of 
 " the money above dtmunded," yet that allegation is unneces- 
 sary, and the usual breach at the end of the declaration will 
 suffice \{m) and the distinction is stated to be, that whenever 
 the debt arises merely by the judgment or obligation, Sec. and 
 not from any thing dehors, a non-performance of the obligation 
 is to be laid, and the conclusion is to be with the breach ad dant' 
 num ; but that where the debt arises not by the obligation alone, 
 but also by some matter dehors stated in the declaration, there 
 the count should conclude per quod actio accrevit, Ecc. as in debt 
 on a lease for rent.(w) The quantum meruit and quantum i-ale-i 
 bant counts resemble those in assumpsit, except that the words 
 ^ ^ .- " agree to pay," arc usually inserted, *instead of" promise to 
 « pay ;" and that such counts in general conclude with the same 
 allegation per quod actio accrevit. See. as the indebitatus count. (") 
 The mode of framing the declaration in debt on legal liabilities, 
 on awards, and for escapes, Sec arc pointed out in the notes to 
 the precedents in the second volume. (o) 
 
 In debt upon a cpecialtrj, the declaration usually proceeds im- 
 mediately from the commencement to the statement of the de- 
 fendant's contract, A\ithoHt any intermediate inducement or 
 statement of the consideration upon which the contract was 
 founded ;(/>) for in general the circumstances under which the 
 deed was made are immaterial, and a consideration is seldom 
 
 {fc) 2 T. R. 2!;. Post, vol. 2. 142. (n) Post, vol. 2. 142, 143. G?l!> 
 
 n. !. Debt, 414. 
 
 (0 W. ibid. 12 Mod. 51 1. (o) Post, vol. 2. 145 to 151. Ante, 
 
 (7») Post, vol. 2. 142. 144. iu the 102. Sec also Com. Dig. Pitadei-, 2. 
 
 notes. Gilb. Debt, 414. W. 11. 
 
 (n) Gill). Debt, 415. (//) See the cases. Com. iJigi 
 
 Pleader, 2. W. 9.
 
 OF THE DECLARATION. 34G 
 
 essential, or at least it is to be presumed.(i7) It is principally if I^^ P'^^^-^- 
 on this account that the declaration in debt or covenant on a ^"^^^^ ^-^^ .^^__ 
 specialty differs from that in assum/isit. Thus in debt upon a t'«n- 
 bond, the declaration states " that the defendant on, ikc. at, Sec. 
 " by his certain writing obliijuiory, sealed with his seal, and 
 " now shewn to the court here, acknowledged himself to be held 
 
 " and firmly bound to the plaintiff in the sum of /. to be 
 
 « paid to the plaintiff," and then states the breach in 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 declaration merely 
 alleges " that the plaintiff on, Sec. at. Sec by a certain indenture 
 " made between him and the defendant, with a profert thereof, 
 " demised," Sec. *and in this case, if the title be unnecessarily * 347 
 set forth, it will in general be considered as an in)pertinent alle- 
 gation, and may be rejected as surplusage.( r) But in an action of 
 debt or covenant on a lease at the suit of the assignee of the re- 
 version, or of the heir of the lessor, or by an executor of a ter- 
 mor for rent, which became due after the death of the testator, 
 the declaration must state the title of the lessor to the demised ' 
 
 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 ;(s) and this even where the es- 
 tate of the plaintiff is derived fiorathe king or a corporation. (/) 
 Such title is usually shewn by way of induceyntnt preceding the 
 statement of the lease ; as when the action is at the suit of an 
 heir, by alleging that the lessor was seised of the premises in 
 his demesne as of fee ;(u) or when the estate demised is copy- 
 hold, by shewing that fact, and that the lessor was seized at the 
 will of the lord, according to the custom of the manor ;(z;) or 
 where the plaintiff claims as assignee of a term, or as executor 
 ©f the lessor for i-ent, Sec. due since his death, by stating that 
 
 (9) Plowd. 308. 7 T. R. 47-. 4 {t) 1 Saund. 1S7. n. 1. The omis- 
 
 Easl, 200. I Foiibl. 347. sion of the statement of the lessor's 
 
 (r) I Sti-a. 23U, i,'Sl. 1 Sauiid. 233. title is said to be aided by verdict. 1 
 
 0.2. Show. 71. 
 
 (s) I Saund. 233. n. 2. 1 Sir. 230. (?/) 2 Saund. 361. 4l6. Post, vsi. 
 
 -T. n. 5.3S. Com. Dig. Pleader, C. 2. 200. 
 
 .)6 r.illi. l)i bt, 410 rT> Po^t, vol. 2. 205. 2fl7.
 
 * 348 
 
 547 OF THE DECLARATION. 
 
 //. Its parU: the lessor, i\i the time of making the lease, was possessed of the 
 iiims'c oV ac- '^6"^isc'' premises for the residue of ascertain term of years, 
 Scc.(7i') In these cases *the lessee ,and his assi.^nee being 
 estopped by the deed from denying the lessor's title generally, 
 cannot plead nil habuit, or traverse the entire inducement, l)Ut 
 iKlmillin(;- {^y Ins plea that the lessor had some le.tjui interest in 
 the premises, he may shew that he w^s entitled to a diffi rent 
 estate, and thereby in effect traverse the plaintifl's derivative 
 Utle.(jr) 
 
 The time and place of making the contract should be stated 
 as in assumpsit, and it must in general appear that such cou' 
 tract -w-x-i by rfccrf, except in debt for rent on a deniise, which 
 is the only instance where a deed may be adduced in evidence 
 in support of a count not mentioning it.(;/) It must also ap- 
 pear that the contract was undersea/; but there are some 
 technical words, such as indenture^ deed or writing obligatory^ 
 which of themselves import that the instrument was sealed, 
 and which will suffice ;(r) and the omission of the statement 
 that the instrument was under seal, will be aided if the defend- 
 ant by his plea admit that the writing was sealed.(a) The de- 
 livery of the deed, though esseniiul to its validity, need not be 
 stated in pleading ;(6) and though dated on a particular day, a 
 deed may be stated in pleading to have been made on another 
 day.(c) 
 
 The Jirofert in curiam of the deed, or the excuse for the 
 omission, usually follows the statement of the time and place 
 of making the deed, and of the parties thereto, and precedes 
 ^ 34y ^l-^s statement *of the defendant's contract. (i/) Such /irofert 
 
 is usually in the following words : — >' which said writing obli- 
 " gatory, (or indenture, &c.1 sealed with the seal of the said 
 '■' defendant, the said plaintiff now brings here into court, the 
 
 (w) Post, vol. 2. 21)4. 7 T. R. 5,38. (r) 1 Saund. 290. n. 1. 320. n. ,X 
 
 See the various modes of stating <lif- Com. Di;j;. tit. Fait, 
 
 fci-ent titles, and the nature of the (a) Id. ihid. Ld. Raym. l5o6. 1541. 
 
 estate, and how acquired, post, vol. 2. Cro. Car. 209. 
 
 199 to 23,1. {b) I Saund. 291. n. 1. 
 
 (.r) Post, vol. 1. 500. n. {u). 7 T. (r) 4 East, 477. 
 
 R. 538, 539. 00 -^^ ^'^ profei-ts in general. See 
 
 Q/) 1 New Rep. 104. I Saund. 270. Com. Dig. Pleader, O. P. X Saund. 
 
 n. 1, 2. 202. 211. 2 Saund. 297. n. 1. 9. u. 1.
 
 OF THE DECLARATION. 349 
 
 '< date whereof is the day and year aforesaid ;"('') and the ex- ^t ^'^ v 'ta. 
 cuse for the omission of 2Lfirofcre being traversable, is to he caase''ot" ao^ 
 stated according to the fact, as either that the deed l.as been tiun. 
 lost or destroyed by accident, or that it is in the possession of 
 the defendant, £cc. and that therefore the plaintiff cannot pro- 
 duce the same to the court. (/) In declaiing upon a bill of 
 exchange, or other simple contract, no fircferc is made ; but in 
 pleading a deed it is in general necessary, in order that the 
 court may judge of the sufficiency of the deed ;(^) but when 
 the deed operates under the statute of uses, as a lease and I'C- 
 lease, or a covenant to stand seised to uses, a fi'-ofert is unne- 
 cessary. (//) So in the case of a feoffment ; because the estate 
 pusses by livery of seisin, and the statute against frauds which 
 requires that the lively should be accompanied by some instru- 
 ment in writing, has not altered the form of pleading. (?) So 
 when the deed is stated only as inducement,(y) or where the 
 plaintiff has no right to the posscs^aon of it, or of the counier- 
 part,(/C) *a /iro/t-r/ is unnecessary ; and it has been held that the 4!6 35Q 
 
 assignees of a bankrupt obligee need not make a profert of the 
 bond ;(/) and an award, though under seal, not being a spe- 
 cialty, needs not be pleaded with a profirt.{m) 
 
 When a profert or an excuse for the omission was unneces- 
 sary, the statement of it will be considered as surplusage, and 
 will not entitle the defendant to oyer.vra) And oyer of a pri- 
 vate act of p-iriiamcnt, or of a record, as of letters patent en- 
 rolled in chancery, cannot be claimed though pleaded with a 
 prqfcrt.[o) But where ix pr-frrl or an excuse for the want of 
 it is necessary, if the plaintiff profess to produce tb.e deed 
 when he is not prepared to do so, the defendant is entitled to 
 
 (f) Post, vol. 2. 151. 15.3. 1P2. (0 Id. ibiil. 3T. R. 15G. 8 T. R 
 
 (/) 3T. R. 151. 2 H. Bl. 259. 573. I Saund. 2/6. 1,2. Potl, vol. 
 
 Post, vol. 2. 153. 2. 214. n. o. 
 
 (5) 10 f;o. 92. h. 4 T. R. 3.-.8. (,/) 8 T. R. 573. Coin. Dig. Plead- 
 
 Com. Dii;. Pleader, O. 1. &c. where a er, O. 15. 
 
 variety of inst:tiiccs are collected, in {h) 1 S:uiad. 9. a. n. I. 1 Vez. 394, 
 
 ■wliich a pi-ofert is or is not necessary. (/) Cro. Car. 209. 
 
 (h) S T. R. 573. 1 Saiiiul. 9. n. 1. (m) 2 Saund. 62. b. n. 5. 
 
 1 Vez. 39+. 2 B. & P. 3Sr. 2 H. 00 2 Salk. 407. 
 
 RI. 262. 3 T. R. 150. Post, vol. 3. (o) 1 T, R. 149 1 Saund. 9. b n. I 
 2)8, :i9. 
 
 Vol. I. [ 32 ]
 
 350 OF THE DECLARATION. 
 
 II. Its parts, oyer, and if he plead von est factum^ the pUuntiff will be non- 
 F(irthlr, the suited Oil l!ie uial, as it will not be suflititnt in such cuse t» 
 
 UHiise ot ac- 
 tion, prove that the deed was lost or destroyed, or in the defendant's 
 
 possessioii ;(/<) and therefore, if the plaintiff be not prepared 
 to produce the deed on oyer being claiined, or at the trial, 
 and bus inadvertently pleaded the deed with a firoferi^ the de- 
 claration must be amended, and the circumstances to excuse 
 the /J ro/>r/ should be statcd.((/) However, the omission of a 
 fir-.f.ri^ when necessary, can oiily be taken advantage of by 
 special denuirrer.(r) 
 
 In siencrai the declaration procc ds immediately from the 
 *■ 351 jiroj'trt to the statement of the defendant's *contract witliout 
 disciosint^- the cor;. sidf ration upon vviiich it was fcunded^ which 
 is not in genera! esst ntiul to the validity of a deed. (a) But in 
 pleadini;; a conveyance under the statute of uses, it is necessary 
 to '^tate tliat a vahuihlc conNiiier<.aion was p;>id,(0 or that there 
 was a g'jod consideration, as in the instance of a covcn;.nt to 
 stand seised to uses mude in respect of relaticnship, &c.'.m) in 
 which cases, if the statement ot the consideration be omiited) 
 the declaration will be bid on special demur; er.(-c') So when 
 an act to be done by the plaintiff was the consideration of the 
 defendant's covenant, and constituted a condition piecedcnt, it 
 is necessary to shew such consideration as well us the perform- 
 ance of it.C:t^) 
 
 In statinp; tlie contract by deed, cither in debt or covenant^ 
 the rules which we have considered in the action o{ ashwyipaitf 
 in general apply. The defendant's contract should in strict- 
 ness be set forth in positive terms, and not with the testatum 
 exi&tet, or that it was witnessed, &c. but this will suffice in a 
 declaration, though not in a plea or avowry in which the opera- 
 tion of the deed or instrviment must be expressly averred, and 
 not by way of recital or argument. (x) The deed must be 
 
 (» 4 East, 585. 1 Es]). Rep. 337. (a') 2 H. B). '259. 261. 2 Saund. 12. 
 
 Iq) Ttl. ibid. 1 Saund. 9. a. n. 1. n. iiO. 2 Slra. 229. 2 Sand, on Uses, 
 
 (/•) 4 & 5 Ann. c. 10. Coin. Dig. 53. 
 
 Pleader, S. IT. (,y) 2 .Saimd. 352. b. 6 East, 5GS. 
 
 (*) .\nte, 346. ST. R. 590. Ante, 309 to 319. 
 
 (i) J'osi, vol. 2. 218. n. a. (r) 1 Saund. 2r4. u. 1. Ld. Raym- 
 
 («) Post, vol. 2. 217. 1539. 2 Sauad. 319. ii. 5.
 
 OF THE DECLARATION. 351 
 
 pleaded accoi'dinj^; to its Icc^al operation ; and where a title by jj /,, p.^-tif. 
 conveyance, in which are the words give, grant, release, con- F'>'n-tlilv, the 
 
 . . oausf ol" ac 
 
 firm, bari^ian, sell, £ic. is pleaded, the p trty should rely on one Uon. 
 of *those words, or it least should only adopl such of them as * 352 
 have the same operation. (i/) We have alrcLidy seen that the 
 contract should be set forlh/eiiher in tlie precise words, or ac- 
 cording to the legal eilect, and that no covenants or matter un- 
 connected wirh the cause of action should be stated.(z) 
 
 After stating the covenants it is usual, though unneces- 
 sary, to refer to the indenture, and in actions on leases 
 to state the hsuec's entry on the demised premises ;(w) and 
 when the action is betMeen the orii>inal parties to the contract, 
 the declaration then proceeds immediately to the averments of 
 the plaintiff' 's performance of the conditions precedent wiien 
 necessary, and to the breach. But when the declaration is 
 by or against a person who was a party to the oiigina! con- 
 tract, and particularly in actions upon leases, tl-e stutement of 
 the derivative title of the plaintiff" or the defendant precedes 
 the breach. Thus, when an action is brought by the heir of 
 the lessor, the death of his ancestor, and the descent to the 
 plaintiff' as heir, is shewn.(A) And when the plainiifi^ claims 
 as assignee of the reversion, by lease and release, or other con- 
 veyance, &c. it must be set forth. (c) In an action brought by 
 the assignee of a term, all the mesne assignments of the 
 term, down to himself, should be stated ; for he being piivy 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 * 353 
 assignment; but when the action is brought against the as- 
 signee of a lessee, such general form of pleading is sufficient, 
 because the plaintiff" is a stranger to the defendant's title, and 
 therefore cantiot set it out particularly. It is not, however, 
 sufficient in the latter case to allege that the tenements came to 
 the defendant by assignment ; but it must be shewn that he 
 is assignee of the term, for otherwise it might be an assign- 
 ment of another estate than the term of the lessee. The 
 usual form is, " that all tiie said estate, right, title, and inle- 
 
 («/) 2 Saund. 97. (6) n. 2. Co. Lit. (a) E'ost, vol. 2. lO."^. n. m. n. 
 49. a. n. 1. Willes, .U9. 6 East, 105. \b) Post, vol. >. 213. 
 (z) Ante, S'JS to 303. (r) Post, vol. iJ. 219, &c
 
 35:i OF THE DECLARATION. 
 
 II. Its parts. " vest of the said E F (the lessee) of, in; and to the Said de- 
 Fovn thiy, tiie « mised premises with the appurtenances, afterwards, to wit> 
 tJon. " on, &c. at, See. atbresaid, by assignment thereof, then and 
 
 " there duly made, came to and vested in the said defcnd- 
 "ant"((r/) An heir may be sued, either generally as heir, 
 without shewing how he became so, or may be declared against 
 as assignee, upon a covenant running with the land.(e) And 
 an execuior may be sued in the debet and detinet as assignee, 
 for rent which became due after the death of his testalor.(y ) 
 The mode of declaring by and against persons suing or being 
 sued, in a derivative character, is pointed out. in the various 
 precedents in the second volume .(,§•) In some cases of debt 
 on specialty, it may be necessary to aver the performance by 
 ^ 354 the pk.intilT of a condition *precedent, or that some other cir- 
 
 cumstance has taken place which entitles the plaintifl" to the 
 payment of the debt ; but in general the declaration proceeds 
 at once to the usual breach. 
 
 We have seen that debt is the proper remedy on records, as 
 recognisances of bv.il, statutes merchantv recognisances in the 
 nature of a statute suiple, and on judgments. (c) 'I'he validity 
 of these cannot in ple.iding be impeached or afiected by any 
 supposed defect or illegality in the transaction on which they 
 •were founded, nor can there be any allegation aguinst the va- 
 lidity of a record,(<&) and consequently it is not necessary to 
 stale the circumstances or consideration on which the record 
 ■was founded. In debt upon a recognisance of bail., it must be 
 stated with certainty, following the description in the entry of 
 the recognisance, and should set fortii in what court and at 
 whose suit, and for what sum or cause the defendant became 
 bail :(c) and in pleading a statute staple, it should be shewn to 
 have been by writing obligatory, or under seal.(c/) Pormerly, 
 in an action upon a judgment, it was usual to set forth in the 
 
 (rf) 1 Saund. 112. b. n. I. Post, {(>) 4 East, 311. 2 Lev. 161. Gilb. 
 
 iOi. 2, 196. on U. & V. 109. Cilb. Debt, 4l'i. 
 
 (e) 1 Salk. 555. 4 T. R. 75. Burr. 1007. 3 East, 258. 
 
 (/) 1 Salk. Sir. ((■) I Wils. 284. Post, vol. 2. \77 
 
 C^) By 01- against an executor or to ISl. Ci-m. Uig. Pleader, 2. W. 
 
 iif^miiiistrator, post, vol. 2. 158. — 10. 
 
 A.qainst as heir or devisee, ibid. 159. {(I) Cro. Car. 363. Com. Dig 
 
 161. On various titles, 200 to 233. Pleader, 2. W. 10. 
 
 fa) Ante, 103, 1 04.
 
 OF THE DECLARATION. 354 
 
 declaration the whole of the proceedings in the former suit, ;/. Jts parts. 
 
 but this is no lonsrer the praciice.Cf ) and it is sufficient to state ^'^''''t'''^' ^^^ 
 " or' ^ Pause 01 ac- 
 
 shortly, " that heretofore, to wit, in such a term in such a tion. 
 " court then holden at Weatminntcr, &c. the plaintiff by the 
 ^consideration and judi^mcnl of that *court, recovered against * 355 
 
 ♦< the defendant the sum of /. which was adjudged by the 
 
 ♦' said court to the plainlift" for his damages which he had sus- 
 " tained, as well by reason of the non-performance by the said 
 " defendant of certain promises and undertukhigs made by l.i;n 
 " to the pluintifT, as for his costs and charges by Inm about his 
 " suit in that behalf expended ;" or if the judgment were iu 
 debt, the form varies accordingly : and this concise mode is 
 sufficient even in an inferior court not of record ; and il is not • 
 necessary to set out the cause of action, or that thedelendant 
 became indebted within the jurisdiction of the court. (/) It 
 is, however, necessary in debt upon a judgment in the courts 
 at Westviinster^ to shew with cerluinty the term and parties, 
 and the sum recovered; audit is said, that if the declaration be 
 on a judgment in the Common Pleas, it should be stated before 
 what judges it was recovered ;(5-) and this is frequently ne- 
 cessary in debt on a judgment in an inferior court, in which 
 case, the names of the suitors who were the judges should be 
 stated ; but the omission will be aided by verdict. (A) Care 
 must be taken that there be no variance in the statement of 
 the judgm'ent, which in the case of a record we have already 
 seen is in general fatal ;0) thus, if there be a judgment for 
 388/. 0*. \d. and debt be brought on it as for 388/. recovered, 
 omitting the penny, it is a variance, and cannot be cun d 
 by a remittitur of the penny .(y) *In debt upon a judgment, ^ IKPx 
 or other matter of record, unless when it is stated as induce- 
 ment, it is necessary after shewing the matter of record, 
 to refer to it by the firout jiatet per recordum.{k) But the 
 
 (e) I Wils.318. (/i) Id. il)i(I. Carlh. 86. 2 East, 
 
 (/) 1 Wil-!. 316. I Saund. 92. n. 36-2. 
 
 2. Post, vol. 2. 181, 182. Com. (/) Ante, .Wfi. 
 
 Dig, Pkader, 2. W. 12. Carth. 8.1, ( /) 2 Sti-a. 1171. 9 Eaiit, l.^)'. 1 
 
 86. Thomp. Ent. 118 8 T. U. 127. Esp. Rep. 5.56. 
 
 (5-) Com. Dig. Plea.lcr, 2. W. 12. (A^ t"''!'' l>t-bt, 412. Atilles, 127. 
 
 but see the usual form, post, vol. '2. in which Salk. 565. referred tr> in 
 
 191. Com. Dig. Pleader, 2. W. 12. is cor- 
 rected.
 
 356 OF THE DECLARATION. 
 
 //. Its parts, omission will be aided unless the defendant demur specially.(/) 
 
 Fourthly, the j^ jg usual also to allege that the iudyrmenf still remains in full 
 cause ot ac- '^ / . ' 
 
 tion. force and effect, and that the plaintiff has not obtained execu- 
 
 tion or satisfaction thereof, but this allegation is unneces- 
 sary .(m) 
 
 In debt 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 to the informer, and the king, or 
 the poor of tlie parish, £cc. the commencement and other parts 
 of the decKiration usually state that the plaintiff sues (jui lamf 
 See. though tiiis is not necessary, unless there has been a con- 
 tempt of the king.(rt) In a declaration on a public statute, it 
 is not necessary or advisable to state the title or year of the 
 reign when the statute was passed, or to recite any part of the 
 act ; and if it be luinecessariiy stated any materi.d variance 
 will be fatal, particularly if the declaration conclude against tiie 
 form of the statute a/oresaid.{o) It is material however in all 
 
 *■ 357 cases that the *ofIcnce or act cliarged to have been committed 
 or omitted by the defendant, appear to have been within the 
 provision of the statute, and all circumstances necessary to sup- 
 port the action must be alleged, and the conclusion with contra. 
 formam statuti will not aid the onjission (/?) if, however, this 
 be stated in effect, it will suffice ; and therefore a declaration 
 for feloniously setting fire to two stacks of oats is sufficient* 
 though the words of the act are uniawlully and maliciously .(y) 
 Where a person is exempt from a penalty under certain cir- 
 cumstances by a proviso in a statute, and not in the body of it» 
 the plaintiff need not state that the defendant is not within the 
 exemptions, for that is merely matter of defence to be shewn 
 
 (0 4 Ann. c. 16. .s. 1. {o) Ante, 218. Com. Dig. Actiw. 
 
 {m) I Saund. 330. n. 4. Sell Tide on StnttUe, H. I. 2 Saund. 374. n. 2. 
 
 Com. Dig. Pleader, 2. W. 12. 6 T. R. 776. 2 East, 341. 
 
 {n) Com. Dig. Action on Statute, {{f) I Saund. 135. n. 3. 1 Salk. 212; 
 
 E. 1. "T. R. 152. 1 Sauml. 136. n. Com. Di?. Action, Statute, A. 3. 
 
 1. 2 Saund. 374. n. 1. As to Pleader, C. 76. 
 
 pleadings in general on statutes, see (f ) 3 VVils. 318. 2 Bl. Rep. 842. 
 
 Com. Dig. Pleader, C. 76. Bac. A br. 5 East, 244. 
 tit. Statute. I Saund, 135. n. 3. '2 
 Saund. 377. b. n. 12.
 
 OF THE DECLARATION. 357 
 
 ty the defendant ; but where the exception is contained in the H- ■''» parts. 
 enaClin}? clause, it must be negatived in the declaration ;(r) but f^u"e '^'^•' ^^^ 
 in a declaruiion on the game laws, it is not necessary to nega- tion. 
 tive the purticuLr qualifications, though it is otherwise in an 
 in form at ion .(a) When an act of parliament which has been re- 
 cently passed, enacts that if a p^rty commit an offence after a 
 named day, he shall be liable to a penalty, it is usual to aver 
 that the otVence was committed after that day ; but when the 
 act has been long passed, such averment is not necessary. (/) 
 It is usual also when the particular statute limits the time 
 within which the action should be brought, to aver that the of- 
 fence was *committed within such time ; but this also doesnot * 358 
 seem material. (e^) 
 
 Where the act or omission was not an offence at common 
 law, it is necessary in all cases to conclude against the form of 
 the statute or statutes,Cf) or to shew at least tliat the declara- 
 tion is founded on the statute, by introducing the words de pla- 
 €ito transgreseioncs'et contcmptus contra fortnam etatuli.(w) And 
 the words '* whereby and according to the form of the statute," 
 will not suffice when the action is founded on two stututes.(x) 
 In the latter case, the conclusion should be agaitist the form of 
 the statutes, (i/) Where, however, a statute refers to a former 
 act, and adopts and continues the provisions of it, the declara- 
 tion should conclude only against the form of the statute ;U) 
 so where an offence is prohibited by several statutes, if only- 
 one is the foundation of the action, and the othere are explana- 
 tory or restrictive, it is proper to conclude against the form of 
 the statute in the single number.^a) The omission of the 
 words " against the form of the statute," or " statutes," when 
 proper to be inserted, is fatal even after verdict.(<i>) In gene- 
 ral, however, there is no difference as to the doctrine of 
 amending 4$ common law, between penal and other actions ;(c) 
 
 (r) 1 T. R. 144, 145. 1 Ltr. 20. (2/) Id. ibid. Lutw.2I2. 4 Hawk. 
 
 Com. \)\^. Action Sutute. 71. Com. Dig. Action Statute, H. 
 
 (s) 111. ibid. 1 East, C39. (z) 1 Lut-.v. 212. 1 Sauiid. 135. n. 
 
 (0 1 Sauiid. 3()'J. n. 5. 3. 2 Sauud. 377. n. 12. " East, 51G, 
 
 (u) 2 Kast, 340. 352. (a) Ydv. 1 1 f.. 2 Saund. 377. n. 12. 
 
 (w) 2 Ea>.t, 339. 1 Saund. 134. n. {b) 2 Kast, A33. VVilles, 599. 
 
 3. 6 East, 140. "East, 51f. (c) I S:iuiid. 25t>. d. 1 Stra. IST. 
 
 (vo) 2 East, 341. 2 Str». 122/ 1 Wih. 856. 1 Burr- 
 
 (x) 3 bast, 340 .J02.
 
 «;ause 
 liun 
 
 359* OF THE DECLARATION". 
 
 //. Its parts, and the statute 4 Geo. II. c. 26. extends the provisions *of the 
 «;ause of' ac- Statute of ji-o/uils to peu.il actions ;(<?) and it had before been 
 determined, tliat the 32 fleii. Vlli. c. 30. extended to penal 
 actions. (/) It is usual, in addition to the statement co?i^ra/or- 
 fna?n statuti., and of the consequent forfeiture of the penuhy, to 
 allege that " by means of the premises, and by force of the 
 " statute in such case made and provided, an action hath ac- 
 « crued to the said plaintiff to dtniand and have the said penalty 
 
 « of /." &:c. but this appears unnecessary ; and even asj 
 
 suniing it to be requisite, yet a count for a penalty on the sta- 
 tute 5 Ann. statini;; that a defendant kept a snare to kill game, 
 " against the form of the statute in such case made and prof 
 " vided, and by reason whereof, and by force of the statute in 
 " such case made and provided, an action has accrued," &c. is 
 sufficient ; for the first mentioned statute refers to the 5th Ann. 
 c. 14. creating the ofience and giving the penalty ; and the last 
 mentioned statute refers to the 2d Geo. III. c. 19. by wbic h the 
 whole penalty is given to the common informer, the half only 
 of which had been given to him by an iatervening statute ( g) 
 
 As the action of debt is merely for a money demand, the 
 breach^ or cause of action compiained of, must necessarily pro- 
 ceed only for the non-payment of the money previously alleged 
 to be payable ; and such breach is nearly similar, whether the 
 action be in debt or simple contract, specialty, record, or sta- 
 tute, and is usually as follows — ■'■ Yet the said defendant, al- 
 " though often requested so to do, hath not as yet paid the 
 
 * 0/-A " said sum of L{h) above demanded, *or any part thereof, 
 
 " to the plaintiff, (or if (jui tarn., ko. to our said lord the king, 
 
 " and to the said , who sues as aforesaid,) but has hither- 
 
 '< to wholly neglected and refused so to do. To the damage 
 
 " of the plaintiff' of /. and therefore he brings his suit," 
 
 &,c. The damages in debt are in general merely nominal, and 
 not as in as-ticmjisit the principal object of the suit, and there- 
 
 (r) ^V'illcs, noO. (/;) Tliis is to be the sum named in 
 
 ( /") 3 Lev. 375. 1 Stra. 13C. 2 the commencetneiit of the declara- 
 
 Stra. I2'i7. Doug. 115. tion, being the aggregate of all the 
 
 (5' ) 7 Eust, 516, ■ sums staled to be due in the different 
 
 counts.
 
 OF THE DECLARATION. 360 
 
 fore a small sum, as 10/. is usually inserted,(z') and in an action //. Its parts. 
 
 by a common informer, as he is not entitled to damages, no Fouithlv, tl>e 
 
 damages should be inserted. (y) i-i""- 
 
 As the action of covenant can in general only be supported In Covenant. 
 on a deed, (a) there is less variety in the declarations in this 
 action than in that of debt, and therefore but few observations 
 will here be necessary, as most of the rules to be observed in 
 framing a declaration in assumpdl or debt, equally govern in 
 framing the declaration in this action. (6) The commencemeiit 
 of the declaration in the King's Bench, by bill, varies only from 
 the form in assumfisit and debt in the description of the plea or 
 form of action, which is " of a plea of breach of covenant ;" 
 but in the King's Bench by original, and in the Common 
 Pleas, it states that " the defendant was summoned to answer 
 " the plaintiff" of a plea, that he keep the covenant made by him 
 " with the plaintiff, according to the force, form, and *effect of * 361 
 " a certain indenture made between them, Sec. and thereupon ^ 
 
 " the said plaintiff", by E F, his attorney, complains, for that 
 " whereas," &c. and this form varies when the action is by or 
 against the assignee of the reversion, or an heir, &cc.(c) We 
 have already seen that an inducement is not in general necessary 
 in this action, unless by or against a person claiming or being 
 sued in a derivative character, as at the suit of the heir at lav.', 
 or of the assignee of the lessor ;(f/) nor is a consideration ne- 
 cessary to be stated, unless it constitute a condition precedent, 
 or unless a conveyance operating under the statute of uses be 
 pleaded. ((') We have seen that after stating the time and 
 place of making the deed and the {Kirties thereto, a /irofcrt of 
 the deed or an excuse for the omission is usually necessary ;{/) 
 and in setting out the defendant's contract^ no unnecessary 
 
 («) Ante, 100. (c) Post, vol. 2. 191. 
 
 (./) * Kurr. 20-21. 2490. {d) Ante, 546, 547. 
 
 00 .\nte, lOOtolir. {e) Ante, .3.11. 
 
 (6) .\s to the action of covenant {f) Ante, 35f). 
 In general, sec ante, 109 to 117. 
 
 Vol. I. [ 33 ]
 
 561 OF THE DECLARATION. 
 
 II. Its parfs. Tnatter should be suacd, a rule which particularly prevails, and 
 FourthI; , tlie should be ol>served in pruc.ice, in declaring upon a lewse or a 
 
 Cause of ac- • • i r 
 
 tiwn. mo!'t;^MC>;e deed. (5-) in declaiing on a lease, it is usual to reler 
 
 thereto, aiid to stule the lessee's entry and the plahuiff 's gene- 
 ral peitorniance, but these are uunecessdry :(/;) the mode of 
 stating a derivative title or liability, (/) and of averring per- 
 fonn.:nce by the plaintiff of a conditioh precedent, and the de- 
 fendant's noiice thcreor and his breach of covenant have al- 
 ready been consideied.(y) It is usual after stating the breaches 
 of cuveuc.nt, to conclude by alleging — "^ And so the said piam* 
 * 362 " *-iP' i" ^"Ct saiih, that the *Suiu defendant, although often 
 " requested so to C\o^ hath not kept his sJd covenant, but hath 
 " broken the same," Sec. but this is meie form and is super- 
 fluous repetition ;(A) damages being the priiu.ipal object in this 
 action, should be laid suluciently large to cover the real de- 
 maud. 
 
 In Actions in Actions in form, ex delicto^ are case, trover, detinue, re- 
 jo'in ex ife- pig^jj-j^ trespass, and ejectment ; the applicability of wliich re- 
 medics has aheady been considered. (a) Tlie particular mode 
 of flaming declaration in tliesc actions is stated in the prece- 
 dents and notes in tiu; second voiume ; but tiiere are some 
 g\7itrul rules whicii it vviii be pr>per here to consider, and 
 wi;ich relate principally to ihc fjiafttncnt j 1st. t)f the 7«tt^/er 
 or ch:i!g ufCected; 2dly. Of the plaintiff's right thereto ; 3d!y. 
 Of the injury ; and, 4thly. Of the damages. 
 1 t St' If 7]'i^ Jiro/icrty or thing affxctcd should be described with cer- 
 
 nient of rue tuiuly, and in such terms as are commonly used in the law : 
 
 >«.;««• or , , . , /,x , 
 
 «/«Mj afil-ci- thus a way ought not to be ciescnuea as a passage :(o} and aB 
 '^ ■ the term •• tenement" includes incorpoieal as well as corpo- 
 
 real hereditamenis, it ought noi to be adopted in stating the 
 premises in ejectment or trespass, wiach in general lies only 
 
 {g^V<,z\., vol. 2. t92. n.l. 17G. n. f. (A) 1 Sauiul. 235. a. n. 7. Postj 
 
 (/i) Post, vol. -2. 19.1. vol. '2. I(l4. 
 \i) Ante, 352, .OoS. («) Ante, 122 to 193. 
 
 ( ;) Ante, 325. ixc. See the forms, (6) Velv. 163. 
 post, vol. 2. 194. 197.
 
 OF THE DECLARATION. 362 
 
 {or corporeal hereditaments.(c) The term " close" is pro- f^ ^ts p(-rt.7. 
 
 :\.h\y, tlie 
 e oV ac- 
 
 * 563 
 
 pej-, though the land be not hiclosed, as it iinports in law the ^f'"'"'-''''.''' ^''^ 
 
 eaiise ol aa 
 interest in the soil.(f/) In actions for tiikint^ away *or injuring tiun 
 
 personal properly, the goods or cattle ou!.^ht to be dcs-. viLied 
 Avith certainty, staling the number and value ; but less certainty 
 is required in trover than in detinue, because ii! the former 
 action, daraa^^es only are rerovtred, but in the latter, the gocds 
 themselves : and indeed, it v/as the oliservalioi) of Lord Nurd' 
 ■ivirkci that as the plaintiff niDy, in an action lor a tort, recover 
 if he prove any part of his rase, the docliine as to certainty in 
 the enumeration of the property, appears to be of little ULility.(e) 
 In trover and other actions, where the plaintiff is entiiled to re- 
 cover, though he do not prove the whole of his allegation, it is 
 usual to state a conversion. Sec. of a larger quantity of goods than 
 Avas perhaps really converted, so as to afford greater latitude in 
 evidence, avoiding however any unnecessary description or repe- 
 tition ;(/) but in other cases, and particularly in prescriptions, 
 it is advisable not to state a right to more than is sufficient to 
 sustain the action : thus in a dci laration for disturbance of tolls, 
 where the plainliff 's market was erected by charter, it is the 
 safest way not to state all the Avords used in the charter respect- 
 ing lolls, stallage, &c. but only those which are the suUjcct 
 matter of contest ;(,§■) and in claiming a right of common, or 
 a w\;y, &c. a more extensive right should not be slated than is 
 essential to the support of the action ;(//) and though in an ac- 
 tion of trespass ijiiare clausuin J'ng7t, it is frequently *advisa- ^:- 36 
 blc to Slate the name of the close or its abuttals, in order to 
 avoid the necessity for a new assignment in case the defendant 
 should plead libcrum teneme7ituin ; yet if there be any doubt as 
 to the description, such particularity should be avoided. (^') 
 
 (f) Post, vol. 2. 394 n.e. 1 East, (/) 2 Saunil. 74. b. Rep. temp. 
 
 441. 8 Ka.si, 35". 4 .Mod. 4lS. 42.5. H:;nKv. !21. Baiiies, 3.55. 2 M. Bl. 
 
 2Stia. SUI. 131. 2 Sauiul. 37'.l. n. 13. 
 
 ((/) Doc. k Stiiil. 50. 7 nasi, 207. (.") 2 8ftuml. 172. n. 1. 
 
 ^■ill. Abr. tit. Fences. (/,) 2 H. Bl. 234. \ in. Abr. Pre- 
 
 (t'') Ri't). temp. Unvflw. 12T. 2 sciii>tio!i, \\''. 1 V>j>. Hi-p. 437. 
 
 Hauixl. 74. b. Gill>. L. k E. 220. (/) Bull. N. V. S9. Pobt, vol. 2. 
 
 Post, vol. 2. 30.5. and see Han. Eject- 3Sr. note n. 
 
 mciit, 125. Gilb. Uepleviii, lo'J.
 
 364 OF THE DECLARATION. 
 
 //. Tts parts. In rec^'arcl to the jilaintijf h right or interest in the matter or 
 r'^'u''e''oi'' ac- ^''"'^ ufTectccl, it may be inclej)endent of -any particuhir obliga- 
 tion, tion on the defendant ; or it may be an interest in the perform- 
 e(!ly. Slate- y,.)^g ijy ji^g defendant of some fmrticular duty? founded cither 
 
 meiit 01 the ' ■' 
 
 plHiiiUtf's on contract I^etween the pirties, or on the obligation of law, 
 terest, arising- out of the defendant's particular situation. Where the 
 
 law gives a general right, as for all persons to fish in a public 
 navigable river, it is improper to state such public right or to 
 prescribe, and it will suffice to shew that such a particular 
 place was a public navigable river, and that the defendant pre- 
 vented the plainiifiT from fishing, &c.(y) And whenever the 
 riglst of tlie plaintiff is im/dicd by law, as the absolute rights 
 of persons, it is unnecessary to state the same ; as in actions 
 for assault and battery, false imprisonment, word, or libels, 
 when actionable in themselves, and malicious prosecutions, in 
 which it is sufficient to allege the injury, without any induce- 
 ment of the right of personal security, &c. though it is usual 
 in actions for slander to begin the declaration with a statement 
 of the plaintiff's good characler.(^) But where the law doc3 
 not imply the right to the matter or thing effected, it must be 
 ^ 365 stated either generality or sfiecially.Q') *Thus in a declaration 
 
 for slander, affecting a person in the way of his trade, the par- 
 ticular trade must be shewn by way of inducement. (w) And 
 in an action for an injury to the relative rights of persons, the 
 relation of husband, (^) or master,(o) in respect of which the 
 plaintiff was injured, must be stated : so in actions for taking 
 away, detaining or injuring personal property, it must be shewn 
 that the goods, Sec. were the plaintiff's, either by the words 
 " of the plaintiff," or that " he was possessed of the gnods," &c. 
 or the omission will be ftital even after verdict, the objection 
 being the want of title, and not a title defectively stated ;(//) 
 
 U) AViiles, 2C8. Yin. Abi-. Pre- {o) Post, vol. 2. 2Gr, CfiS. 
 scription, U. Ld. Raym. lOyi. (/>) See the precedents, post, vol, 
 
 (A-) Post, vol. 2. '25.5. n, o. 2, 270 to 331. 377 to 382. 2 S:iund. 
 
 CO Com. Dig. Pleader, C. 34. 379. u. 13. 1 Ld. llayin. 2.39. Rep. 
 
 («?) 1 Saiind. 242. a. n. 3. 2 Saund. temp. Hardw. 118. 2 Stra. 1023. 2 
 
 307. n. 1. 2 15. J< P. 2S4. Post, vol. Lutw. 1.509. Com. Dig. Pleader, 3. 
 
 % 2.56. n. s. JVr. 9. Cro. Jac. 4G. 2 Sidk. 640. 2 
 
 {n) Post, vol. 2. 2C5, 266, Ld. Raym. 890,
 
 OF THE DECLARATION. 365 
 
 ■"\ 
 
 and where the plaintiff's interest in personal property is re- JT. It^ partu^ 
 versionary, his right must be described accordingly ;((/) but if ^^^^^'-^^l ^^ 
 the defendant by his piea admit the plaintiff's property the tion. 
 defect will be aided.(r) 
 
 In actions of tres/iass to houses, la7id, &c. the possession of 
 the plaintiff ought to be slated, or some words equivalent,(4') 
 as the words " of the plaintiff," which as possession is /iri- 
 ma facie sufficient against a \\Tong doer, will sufficed/') In 
 ot/ier personal actions for injuries to real property, corporeal 
 or incorporeal, it was formerly usual to state tlie pluinlifr's 
 title s/icdalh/y as that he was (icii;(;d in /lis devieme as offte, 
 of a house, mill. Sec. and was entitled by prcscrijition, or 
 *grant, kc. to the right of common, way, water-course, or * 355 
 
 other right affected ■,{!) but it is now fully settled, that in a 
 personal action against a wrong doer, for the recovery of da- 
 mages, and not the land itself, it is sufficient to state in the 
 declaration, that the plaintiff was fiosscsstd of a house or 
 land, &c. 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. (a) And though a distinction 
 has been taken between a declaration agaii^st a wrong doer, arid 
 against the owner of the soil ;(v) and it was thought, that in 
 the latter case the plaintiff's title by grant, &.c. must be spe- 
 cially stated, because it might be qualified by some condition 
 precedent, the performance of which ought to be shewn ;(7y) 
 yet it appears sufficient in both cases to declare generally on 
 the plaintiff's possession, though in a /ilea it is necessary to state 
 the seisin in fee, and prescriptive right or grant.(jr) If, how- 
 ever, the right of common, way, or water-course, £cc. be not ap- 
 
 (7) I'ost, vfil. 2. SoO. See precedents, post, vol. 2. 531 to 
 
 00 1 Sifl. 184. 3f)3. 10 Co. 59. b. 
 
 (ff) Com. Dig. Pleader, 3. M. <J. (r) See 4 JNIod. 421. 1 Stra. .S. 
 
 (0 2 Biisitr. 288. 1 East, 244. AVilles, dH). 1 Burr. 440. 4T. H. 
 
 Com. Dig. Pleader, .3. M. 9. "IS. Tidd's Prac. 4 edit. 38G. IT. 
 
 (?) See the cases in Com. Di;;^. IJ. 431. 
 Pleader, C. 34 toC.SS. 2 Snuiid. 11.5. (vt-) 1 Burr. 443, 444. 
 !i. n. 1. And precedents referred to (.r) 3 T. It. 760. 2 Sannd. 113. ;i. 
 
 > Saund. 346. n 2. u. 1. and cases there collected, and 
 
 (w) Com. Dig. Pleader, C. .39. And see the precedents, Liitw. 119, ICO 
 
 tit. Action, Case Disturbance, B. 2 1 Barnard. K. B. 432. 6 Kast, 43S. n.. 
 
 Saund. 113. a. n. 1. 2Saund. 172. a. n. a. 1 Roll. Rep. 394. 1 Show. 18, 19. 
 
 1. 5T. R. 766. ^Viiies, 008. 0.54. 1 o Lev. 266. 4 T. R. 719. 
 Saund. 346. n. 2. 6 East, 438. n. a.
 
 566 ®F THE DECLARATION. 
 
 //. Tts parts, purtenant to the house, land, &:c. and the plaintiff be emi- 
 Fourthly, the ^j^.^i thej.gto bv anrcement or license, the^ alleeation, *' bv rea- 
 
 cause oi ac- j r> 
 
 lion. " son of the possession," kc. would be improper. (i/) *And 
 
 * 00/ where a rcvcraioncr sues for an injury to houses, land, 8cc. in 
 
 possession of his tenant, his interest must he described accord- 
 ingly, though it is bulhcient to allege generally that the lands 
 were in possession of the third person, as tenant to the plain-: 
 tiff, witlwut stating a seisin in fee, 8cc.(2) In an action on the 
 case for obstructing anciitit lightfi, the declaration usually states 
 that the plaintiff, at the lime of committing the grievances 
 complained of was lawfully possessed of a messuage, situate, 
 &c. wherein there of right were and ought to be certain win- 
 dows, through which the light and air ought to have entered 
 the messuage, and then states the injury ; and this is sufficient 
 without alleging that the windows were ancient. (o) So if the 
 declaration be for diverting a ivater-coui-at from the plaintiff's 
 mill, his possession of the mill shouUl be concisely stated, and 
 that by reason thereof^ he ought to have had the use and benefit 
 of the water-course ; without st.iting that it was an ancient mill, 
 or disclosing the grounds upon wi.ich the right to the water is 
 claimed.(d) And in an aciiou for a disturbance of a right of 
 cc7fU}iojii(c) or ivaiu(^d) or of a seat in a /irw-^e') the deciaration 
 states the possession of a house, or land, &c. and t/iat by reason 
 t /lercof i\\c plaintiff was eniitkd to ti.e right, in the exercise 
 of which he has been disiurbed. The s;\mre mode of decla- 
 ring is sufficient ill actions for *disturbance or subtraction of 
 ?o//s,(y) /errie&,(g) and oJj]ces.{lt) And where a corporation 
 brings an action for any due, it is suflicient to state in a dcclu' 
 radon., though it is otherwise in a plea, that it is an ancient bo* 
 rough, and that the btiri'.csses thereof are, and for divers years 
 
 (j/) 4 East, tor. 6 East, •i38. Post, (c) Post, vol. 2. .Sf)-2. 
 
 YCl. 2. .354. n. o. (/■) 2 Sauuil. 11.3. a. 172. n. 1. 6 
 
 (z) Post, vol. 2. ;).iG. East, 438. n. a. AVilles, 654. Owen, 
 
 («) Post, vol. 2. .331,332. Ci-o. Car. 109. Cro. .]ac. 43. Post, vol. 2. 3r>.3. 
 
 32.5. iShow. 17, IS. (e-) Wiiks, 508. 2 Suund. 114. 
 
 {b) Post, vol. 2. 337. 1 Leon. 247. 172. n. 1. 
 
 Palm. 2m 3 Lev. 13.3. 4 East, 107. (/t) 10 Co. 59. b. Cro. Eliz. ,3.35. 
 
 (c) See post, vol. 2. 354 to 358. 4 8 Weiitw. Ind. 5.S. 'Slvr^. Prcc. 345. 
 
 Mod. 418. 1 Sannd. 346. n. 2. 347. 4 Mod. 422. 
 
 (</) Post, vol. 2. 358, 350. 
 
 * 368
 
 OF THE DECLARATION. 368 
 
 have been, a body politic, in tlie name of the mayor, See. with- IT. Its pari». 
 out selling out the name of incoi'poi'ation, or any title to the ^',°"'''-''''-.? V'.^ 
 duty ', for the declaration being founded upon their possession, tion. 
 there is no necessity to state a title to the thing. (/) How- 
 ever, thoui^h it is not necessury 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 on the trial.(y) 
 
 Where the plaintiff's right consists in an obligation on the 
 defendant to observe some particular duty^ the declaration must 
 state the nature of huch duty, which we have seen may be found- 
 ed either on a contract between the parties, or on the obligation 
 of law, arising out of the defendant's /iff r^/cw/wr character or situa- 
 tion. When the declaration is for the breach of an express or 
 Implied coM/racr, and proceeds for wowyrffva^ce, the consideration 
 of the contract must be stated either in terms or in bub- 
 stance.(X-) jBut when it is for a misfeasance or vialfeasance, no 
 consideration need be *stated ;(/) and when it is founded on the ^ ^69 
 
 obligation of laivy unconnected with any contract between the 
 parlies, it is sufficient to state very concisely the circumstances 
 which gave rise to the defendant's particular duty or liability ; 
 as in actions against sherifl's, carriers, innkeepers, 8cc.(7;i) 
 Where the defendant is liable of common right, as to repair a, 
 wall for preventing damage to his neighbour, according to the 
 maxim sic utere tuo ut non alienum hedas, it was always con- 
 sickrcd sufficii.-nt to state that the defendant was possessed of a 
 certain close. See. and that by reason tliereof he was bound to 
 repuir, 8cc. without shewing the particular ground of the de- 
 fendant's liability ;(^2) l)ut where a charge was imposed on 
 another against common light, as owner of the soil or terre- 
 tenant, it wa:; formerly thought that the plaintitT ought to dis- 
 close the particular grounds on which the defendant's liability 
 
 {>■) t Saun(1..340. n. 2. Owen, 109. (/) Id. ibid. 3 Er»st, 62. 6 East, 
 
 Cio. .lac. 43. l-i3. 2 Venlp. 291. 6 332. 2 Ld. Raym. 909. Pest, vol.2. 
 
 EmsI, 438. 2/5. 
 
 (./) 2 Saund. c. 114. 4 Mod. 421. (m) 5 T. R. 149, 150. 1 Saund. 
 
 42i. 1 Samid. 340. n. 2. 312. c. n. 2. 
 
 (^•) 5 T. U. 143. 3 Wils. 34S. (u) 6 Mod. 311. 1 Salk. 22. 3G0. 
 
 Post, vol. 2. 275. I,d Haym. 1090. Pest, vol. 2. S.vi. 
 
 3 T. 11. rcfj.
 
 369 OF THE DECLARATION. 
 
 //. lis parts, was founded ;(o) as in an action for not repairing a fence, ol* 
 F<)uit!i!y, tlu; for not keeping a bull or a boar, &c.(/i) But it is now settled 
 
 Cttusc of ac- . . . 
 
 tion. that there is no foundation for this distinction ; and m the case 
 
 cf Eider v. Smith,{y) where an action 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 oc- 
 cu/iicr of the close, ought to have repaired it, and Mr. Justice 
 
 ^ 370 Bul/cr stated the distinction to be between *the case where the 
 plaintiff' in his declaration lays a charge on the right of the de- 
 fendant, and where the defendant in his plea prescribes in right 
 of his own estate ; in the former case the plaintiff is presu- 
 med to be ignorant of the defendant's estate, and, therefore, 
 need not state it, but in the latter the defendant knowing his 
 own estate, in right of which he claims a privilege, must set 
 it forth. (r) 
 
 In an action on the case, founded on an express or implied 
 contract^ as against an attorney, agent, carrier, inn-keeper, or 
 other bailee, for negligence, &c. the declaration usually begins 
 with a statement of the particular profession, or situation of 
 the defendant, and his consequent duty or liability.(s) In an 
 action for the breach of a warranty the contract of sale is sta- 
 ted ■,{t) and in a declaration by a landlord against his tenant, 
 for not cultivating according to good husbandry, or for not re- 
 pairing, or for waste, &:c. the relative situation of tenant is 
 concisely stated. (t^) 
 
 Declarations for non-observance of the general obligation of 
 law may be either for the consequences of the negligent dri- 
 ving of carriages, &c.(t^) or navigating ships,(w) or for not 
 removing a nuisance on the defendant's Iand,(-r) or against the 
 late rector or vicar, or his executor, or administrator, on the 
 custom of the realm for diIapidations,(?y-) or against the occu- 
 pier of land for not repairing a fence or the bank of a river, 
 
 * ^"^ 5cc.(r) *or for not repairing a way over his land,(a) or against 
 
 (o) Ante, 3uG. (?;) Post, vol. 2. 345, 346. 
 
 (/j) 1 Salk. 335, 33G. 4 Mod. 241. {v) Post, vol. 2. 281. 
 
 (9) 3 T. 11. 7G6. Lutw. 1 19. 4 (w) Post, vol. 2. 283, 
 
 T. K. 718. (x) Post, vol. 2. 331. &c. 
 
 {)') -2 Saund. 113. n. 1. 172. a. n. 1. ( y) Post, vol. 2. 346. 
 
 Ante, 3f.G. (r) Post, vol. 2. 348. 340, 341. 
 
 («) Post, V0I..2. 270, 271. &c. (a) ST. K. 766. Lutv. liy. 
 
 (0 Post, vol. 2. 276.
 
 OF THE DECLARATION. 37I 
 
 (he proprietor of tithes for not taking them away. (A) In these IT. lis parts. 
 cases it is sufficient to state concisely the defendant's posses- i-'<'i>rilily, the 
 
 cause ot ac« 
 
 sion of the personal or real property, and his consequent ob- u-.m. 
 ligation, the non-observance of which is complained of.(c) 
 
 Declarations for the breach of a duty to which the defend- 
 ant was subject, in respect of his fiarticular character or dtua- 
 tioTif are against carriers or innkeepers for refusing to carry 
 goods, or to receive a guest, or for the loss of goods ; or 
 against sheriff's and other public officers for escapes on 
 mesne, (r/) or final process,((») or for not arresting a debtor when 
 the defendant had an opportunity,(y ) for false returns, Sec. to 
 mesne or final process,(§') for not taking a replevin -bond, or 
 lor taking insufficient pledges,(A) or for not assigning a bail- 
 bond. (?) In these cases the particular situation of the defend- 
 ant from which his duty arises should be concisely stated. 
 
 Hence it appears that it is seldom necessary in a declaration 
 for a tort, to state the plaintiff's title or the defendant's liability 
 8/iecially,(j) and, therefore, we will postpone the consideration of 
 the manner in which a right by custom, /irescri/ition, or grant, 
 (x.c. should be claimed till we examine the *structure of pleas, ^ qvo 
 in which the title is usually to be stated with particularity. 
 
 The consequences of a variance in actions in form ex con- 
 tractu, have already been considered, and we have seen that 
 the general rule is, that if the whole of an averment or alle- 
 gation may be struck out without destroying the plaintiff's 
 right of action, it is not necessary to prove it ; but that if the 
 whole cannot be struck out without getting rid of a part essen- 
 tial to the cause of action, then, though the averment be more 
 particular than it need have been, the whole must be proved 
 or the plaintiff cannot vecover.(A-) Thus where in an action 
 
 (6) Post, vol. 2. 350. (A) Aiite, .303 to 308. 2 East, 452. 
 
 (c) Id. ibid. 3 B. k P. 45S to 464. 1 Stra. 229 to 
 
 \d) Post, vol. 2. 299. 232. 2 siauiid. 206. n. 22. 207. n. 24. 
 
 (e) Id. 303. In an action on tlie case where a bond 
 
 ( /■) Id. 301. was stated to liave been made by Ld- 
 
 (^) Id. 302, 303. V. Gave, and that produced was 
 
 (A) Id. 30G. 310. Gage, the court lield the raistake im- 
 
 (0 Id. 311. material. 1 Wils. 115, 116. As to 
 
 (./) In quare in^pedit, ayd other the distinction between variance in 
 
 real actions, it is oilierwise. Bull. N. describing torts and contracts, see \ 
 
 P. 12-2. Con). Dig. pi. S. 1.5. See Salk. 11. in note". 9 Past, 15" 
 
 the modes of stating dift'creut titles, 
 
 post, vol. 2. 199 to 2J3. 
 
 V'oL. L. [ 34 ]
 
 372 OF THE DECLARATION. 
 
 II. lis parts, against a tenant for bad husbandry the declaration stated that 
 FouiUily, ilic tiie delendaiu was tenant to the pluintifl"'s fatlier, and that the 
 
 ciuise «i uc- 
 
 tioji. lands descended to the plainiiff in tec ; and it was proved that 
 
 the same were devised to tiie plaintiff in tail, the variance was 
 held iuiuiuteriai, and the court said that the true rule is, that 
 on the general ibsue in an acvion on the case, all material aver* 
 ments are denied and put in issue, but nothing else ; and that 
 tlie estate of the plcdntitf was not a material averment, and 
 might have been rejected in toto as surplusage. (/) And if the 
 plahniff unnecessarily make a title to common of pasture or a 
 way, Sec. it has been decided that he need not prove the same 
 
 *■ 373 '''"^^ ^s I'^'ii^ stated in *his declaration. (?n) So if the plaintiff 
 
 prove a part of his declaration, he will in general be entitled 
 to recover, for there is a material distinction between actions 
 upon contracts and on torts ; in an action on a contract the 
 plaintiff must prove it as laid, but upon a tort, which is often 
 aggravated witli many particulars, it is not necessary to prove 
 the whole case, and though the plaintiff fail in many of the 
 particulars, yet if he prove so much of it as leaves him a 
 good cause of action he shall recover.(72) It is, however, ad- 
 visable to avoid unnecessary particularity, as where the plain- 
 tiff' in an action for a libel, declared that he had duly taken the 
 degree of doctor of physic, it was held that he must prove 
 that he had legally become physician ;(o) so where in an ac- 
 tion for an escape, it is unnecessarily stated that the writ was 
 indorsed for bail, by virtue of an affidavit of debt affiled of re- 
 cord, such affidavit must be produced.(/;) And where by the 
 unnecessary statenTient of a title it appears that the plaintiff 
 has no cause of action, it will be fatal : thus in an action against 
 a disturber, in which mere possession is a sufficient title for 
 the plaintiff", yet if he shew a title, and it appear insufficient, 
 the declaration is bad.(y) However, where a title is unneces- 
 
 (/) 2 m. Rep. 840. 2 Rulstr. 288. (o) 8 T. It. 308. And see 1 Esp 
 
 1 Stra.230. Com. Dig. Pleader, C. 59. Hep. 437. 
 
 («;) 1 Sauud. 346.11.2. Bull. N. (/>) 1 B. 8c P. 280. 
 
 P. 76. 4 Mod. 422. 424. ■ 2 Buistr. {q) 1 Saund. 346. a. n. 2. Com 
 
 2S8. Coin. Dig. Pleader, C. 39. Dig. Pleader, C. 29. 1 Salk. SCS. 
 
 (re) Gilb. C. L. k E. 229. Rep. Ld. Raym. 1230. 4 T. R. 717. Sefl 
 
 tenr.v Hardw. 121. 2 Saund. 74. b. vide 4 Mod. 422. 1 Sir a. 230. 
 207. n. 24. 6 Enst, 434. 1 Salk. U. 
 in notes. Sed vide 1 Esp. Bep. 437.
 
 OF THE DECLARATION. 
 
 iO 
 
 eavily stated by way of in'duccrnent to the action, it needs not be // /^^ parts. 
 
 alleged precisely ; as in an action on *the case for a nuisance, Fourth!-., the 
 
 if the plaintiff allege that he vvas possessed for a term of years, j),„ 
 
 it is sufficient without shewing the commencement of the ^ 374 
 
 term.(r) 
 
 Injuries ex delicto arc either committed with or without oilly. St;»tc- 
 force,(*) and are immediate or consequential ;(?) they may i^ji,,,-. 
 also arise from muljeasancey misfeasance, or nonjeasance .(x>) 
 In declarations in trespass, which lies only for wrongs imme- 
 diate and committed with force, the injury is stated without 
 any inducement of the defendant's motive or intent, or of the 
 circumstances under which the injury was committed, and the 
 declaration immediately after the usual commencement in the 
 King's Bench runs : " I'or (hat the said defendant, on the 
 
 " day of • ) A. D. , ivith force and arms, &c. made an 
 
 " assault on the said plaintiff, to wit, at , in the county of 
 
 *' , and then and there," &c, [describing the injury according 
 
 to the facts, luith any special damage that may have accrued^ and 
 concludi?ig as follows :) " and other wrongs, to the said plaintiff, 
 *' then and there did, against the peace of our said lord the king, 
 
 " and to the damage of the plaintiff of /. and therefore he 
 
 " brings his suit," Scc.(?i) In the Common Pleas the declaration 
 varies in form, and usually recites the supposed writ.(w) The 
 injury in trespass should be stated directly and positively, and 
 not by way of recital, and therefore *a declaration "For that ^ _„ 
 " whereas," or " whcnfore," the defendant did the act complain- 
 ed of, is bad on special demurrer,(jr) and was formerly holden 
 to be so in arrest of judgment, but now it may be amended at 
 any time before or after judgment by a right bill, the time of 
 filing which the court will not inquire into ;(;/) and in the Coin- 
 mon Pleas, when the supposed writ is recited, the mistake is 
 
 »i 
 
 (r) Com. Dig. Pleader, C. 43. (w) See the forms, post, vol. 2. oSff, 
 
 i Mo(!.4'22. 4'2i. 370,371. 
 
 (s) Ante, 123. (.r) 2 Salk. 6.36. I Stra. 621. Andr. 
 
 (0 Ante, 12.';. 282. Com. Dig. Plcailer, C. 86. Post, 
 
 {v) Ante, 1.34. vol. 2. 307. n. r. 
 
 (k) See the fhrras aiul notes, post, (y) 2 Stra. 1151. 1162, 
 ^ol. ?. 307, 308. 571.
 
 375 OF THE DECLARATION. 
 
 II. Its parts, aided, and will not be a ground even of special demurrer.(2) 
 
 Fouiiiiiv, tlie jj^ j^j^g Statement of these injuries, the words " with force and 
 
 cause 01 ac- J 
 
 tion. " arms," or vi et armis^ should be adofued^{a) though the only 
 
 mode of taking advantage of the omission is a special demur- 
 rer ;(6) and in the Common Pleas, when the words appear in 
 the recital of the supposed writ, and not in the count part, it is 
 sufficient ;(f) and in one case Lord Hdt said tliat these woixls 
 might be omitted \{d) and there is an express legislative pro- 
 vision to this effect in regard to indictments.(e) The conclur 
 sion of the declaration in trespass or ejectment, for these forci- 
 ble injuries should also be " contra pacem regis " though they 
 are mere words of form and not traversable ;(/) the omission 
 of that allegation will, however, be aided, if not specially de- 
 * 376 nmrred *to ;(/) and in the Common Pleas, if the words appear 
 in the recital of the supposed writ, that will suffice.(5') 
 
 In actions on the case, when the act or nonfeasance complain- 
 ed of was woX. firinia facie actionable, it is in general necessary 
 to state not only the injury complained of, but also the circum- 
 stances under which it was committed; as, that the defendant 
 ivell knoiving the mischievous propensity of his dog, or having 
 been requested to remove a nuisance erected by another, mali ^ 
 ciously or fraudulently contriving and intending, Sec. (stating a 
 bad intent, corresponding witli the wrongful act complained of,) 
 committrd or jicrmitted the act complained of. 
 
 In some actions the scienter being material, must be alleged 
 and proved ; as in a declaration for keeping a dog used to bite 
 mankind or sheep, Scc.(//) or for enticing away a servant or ap- 
 
 (r) 1 Wits. 99. 2 Wils. 203. Andr. Though there is no longer any judg- 
 
 282. Barnes, 452. Com. Dig. Plead- nicnt tbi- the fine, (sec 1 Salk. 54. 3 
 
 cr, C. S6. Bl. Com. 118, 119. 398, 399. 2 Sel- 
 
 (a) Com. Dig. Pleader, 3. M. 7. 1 ^vin's Prac. 641. 2 Ld. Raym. 985. 
 
 Sauiul. 81, 82. n. 1. 140. n. 4. A'in. Abr. Trespass, Q. a. 5.) yet Ld. 
 
 (6) 4 k 5 .\nn. c. 16. s. 1. Holt, in 2 Ld. ]{ayni. 985. said, the 
 
 (c) Com. Dig. Pleader, 3. M. 7. words must not be omitted ; see also 
 
 (t/) Ld. Raym. 985. Vin. Abr. the above cases ; and yet in some cases 
 
 Trespass, Q. a. 5. ces.wnte ratione cessat et ipsa lex, as 
 
 (t') 37 Hen. VHL c. 8. Crown Cir. in the case of Pledges. 3 T. R. isr, 
 
 Comp. 123. 4 Hawk. P. C. 55, 56. 2 H. Bl. 161. 
 
 ( /■) Cowp. 174. 2 Bl. Rep. 1058. (/) 4 k 5 Ann. c. 16. 
 
 2 Salk. 640, 641. Com. Dig. Pleader, (5-) Cora. Dig. Pleader, 3. M. 8. 
 
 3. M. 8. Vin. Abr. tit. Contra Pa- (A) Post, vol. 2. 2S9. n. h- and C«- 
 
 t'em, and tit. Trespass, Q. a. 5. ses Ihere referred to.
 
 OF THE DECLARATION. 27& 
 
 preniice,(;) or for falsely representing a third person fit to be J^- ^^^ parts. 
 
 trusted, though in the latter case the word " fraudulently" might ca^us'e^ cl' Vt> 
 
 be sufficient. (^) But in an action for debauching a wife or ser- *^'*^"- 
 
 vant, it is not necessary to allege or prove that the defendant 
 
 knew that the female was the wife or servant of the plaintiff.(/) 
 
 And in an action upon an express warranty, the scienter need 
 
 not be alleged, nor if stated need it be *proved.(m) In a dccla- ^ r>-v-^ 
 
 ration against the mere continuer of a nuisance, it is advisable 
 
 to state that he was requested iovQ,u\o\e\i.{n) 
 
 We have already seen how far the defendant's vioiivc or in- 
 tent afTects the form of the action ; and that in general, when 
 the act occasioning damages is in itself unlawful without any 
 other extrinsic circumstance, the intent of the wrong doer is 
 immaterial in point of law, though it may enhance the dama- 
 ges ;(o) as observed by Lord Kenyan, there is a distinction be- 
 tween answering ci-uililer et criminaliter for acts injurious to 
 others ; in the latter case the maxim applies, actus nonfucit ream 
 7iisi mens sit rea : but it is otherwise in civil actions, where the 
 intent is in general immaterial if the act were injurious to ano- 
 ther.(/i) Lord Ellenborough's observations in the case of the 
 King V. Phillips. (^(i) in regard to indictments, elucidate this 
 doctrine : " If any particular bad intention accompanying the 
 " act, be necessary to constitute it a crime, such intention 
 " should be laid in the indictment. In many cases the aile- 
 ". gation of intent is merely a formal one ; being no more than 
 " the result and inference Avhich the law draws from the act 
 " itself, and which therefore requires no proof but what the 
 " act itself supplies. But where the act is indifferent in itself, 
 " the intent with which it was done then becomes material, 
 " and requires, as any other substantive *matter of fact does, ^ 3^^ 
 
 " specific allegation and proof" In an action for the con- 
 
 (»■) Post, vol. 2. 208. n. _v. his lordsliip, but only in tlie oppUca- 
 
 (A) Post, vol. 2. 278, 279. n. i. /w/t of this principle to the pai-tieuiai" 
 
 %\ illes. 584. case. As to the maieriality of a had 
 
 (/) Post, vol. 2. 206. n. s. intent, see the observations in the 
 
 (m) 2 East, 446. Baiiiifs, &c. Tewksbuiy v. Diston, 6 
 
 (») Willes, 583. Post, vol. 2 335. Ea.st, 438. and in the King v. Phil- 
 
 n. c. lips, id. 464. 
 
 (0) Ante, 129, 130. (y) 6 East, 4r3, 4/4. And see 
 
 (/>) Per Kenyon, Ch. J. 2 East, Crown C. C. 12C. 
 
 104. The other judges diftercd from
 
 378 OF THE DECLARATION. 
 
 II. Its paris. sequences of a public nuisance, it is not usual to state any un.* 
 emise^ of' ac^ ^'"^ intent on the part of the defendant.(r) So in an action on 
 ^o"' the case for pirating the plaintiff's copyright in a book, it is 
 
 sufficient to state that the defendant published and sold the 
 spurious copies, without alleging or proving any intention on 
 the part of the defendant to pirate the copyright or injure the 
 sale of the plaintiff's book ;(&) and in action on a statute, as on 
 the black act against the hunch-ed, it is sufficient to follow the 
 words of the act, and on that particular statute it was held un- 
 necessary to state that the stack of oats and barn were unlaw- 
 fully and maliciously set on fire.CO If, however, a malicious 
 or wrongful intent be unnecessarily stated, it need not be pro- 
 ved ;(f) and where there is evidence to prove the allegation, 
 it may be advisaljle, in aggravation of the damages, to state the 
 defendant's malicious intent. (m) 
 
 In stating the defendant's intent or motive, when necessary, 
 the language, as in all other parts of pleading, should corre- 
 spond with the real or probable 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, 
 ^ 379 " and the arrest made," &c.(7y) and *iu a declaration for a ma- 
 licious prosecution of a criminal charge, injurious, as well to 
 the character, as to the lil)erty of the plaintiff, the intent to 
 prejudice the character is also stated. (x) So in actions for 
 verbal or written 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 ;(i/) but where from the 
 nature of the injury there is no evidence that the defend- 
 ant's motive was malice, as in an action for debauching a 
 daughter or servant, that word should be omitted. (r) And 
 where the injury is the breach of a contract express or im- 
 
 (?•) Post, vol. 2. '238, 2.59, 2iO, 2i1. (;/) On same principle, as stated iu 
 
 (.5) Campb. N. P. 9i-. 98. Post, vol. 4 Hawk. P. C. 5C>. 
 •2. ;516. (ty) Post, vol. 2. 242. n. s. 
 
 (0 2 Bl. Rep. 842. Crown. C. C. (j-) Post, vol. 2. 2+8. n. s. 
 126. (tj) Post, vol. 2. 2.5r. 
 
 (r) 2 East, 44C. (z) Post, vol. 2. 20^.
 
 OF THE DECLARATION. 379 
 
 plied '; as for a false \Tarranty, or against a carrier, bailee, Sec. U- its parts- 
 the declaration usually states the deceit or breach of contract, pj^*J,"'j!^''|-7 ^^^, 
 without any allegation of inalice.(a) So in actions against of- *on. 
 ficers, &c. for the non-obsei'vance of a public duty, (unless 
 malice be essential, as in an action against a returning officer 
 of a borough for refusing a vote at an election, &:c.)(6) the 
 breach of duty, and intention to deceive or injure the plaintiff, 
 are stated, without alleging any other undue intent, as in an ac- 
 tion against the sheriff for an escape, &cc.(c) 
 
 When it is material to shew an undue motive or intent it is 
 seldom necessary in a civil action, to state it in ter?n3 ; it 
 is sufficient if it be substantially shewn. Thus in an action 
 against a returning officer, for refusing a vote at an election, 
 though a bad intent is necessary to the support of the action, 
 yet the word wrongfully intending *to deprive the plaintiff, Sic. * 38^ 
 is sufficiently indicative of a malicious intent-Ct/) So in a decla- 
 ration for slander though it is usual to state that the defendant 
 maliciously published the scandal, yet the word falsely alone is 
 sffiucient ;(e) so in an action for harbouring the plaintiff's wife, 
 though the mere statement of the harbouring might be insuf- 
 ficient, because it is lawful hi some instances for the wife to 
 leave her husband, yet the words unlawfully and unjustly har- 
 boured, See. will sufficiently designate the defendant's conduct 
 to have been illegal. (/) 
 
 With regard to the statement of the injury itself, it is fre- 
 quently sufficient to describe it generally, without setting out the 
 particulars of the defendant's misconduct ; thus, in an action on 
 the case for inducing the plaintiff's wife to continue absent, it 
 is sufficient to state that the defendant unlawfully and unjustly 
 persuaded, procured, and enticed the wife to continue absent, by 
 means of which persuasion she did continue absent, 8cc. where 
 by the plaintiff lost her society ; without setting forth the means 
 
 (a) Post, vol. 2. 27Cu Cn. 275. 8c<>. And, as to tlie vinvd frinultdent- 
 
 (l>) 1 Kast, 555. 56,-, 508. n.a. h, 6 tlast, 445. inc. 
 
 (c) Post, vol. 2. 300, 301. ' (e) 1 Saunrt. 242. a. u. 2. From tlic 
 
 (d) I Kast, 563. 567. sec tlie obser- want of prohablc cause, malice mav 
 vat'ioiis on the words " nud'tliose," bt*, ant! most usuall)' is, iinpUed. 1 
 «nd •' sine rationabilP^ or " probubi- T. R. 545. 
 
 '* U caiisa." GUb. Cas. L. k E. liK). (/) WUles, 584.
 
 380 «P THE DECLARATIOxN'. 
 
 //. Its parts, ©f persuasion used by the defen(lant.(5-) So in actions for di- 
 
 Fourthlv, the vcrdnt? water from a stream, or for disturbance of a rij^ht of 
 
 cause of ac- , _ _ ... 
 
 fioii. common, way, Ecc. it is sufficient to allege a diversion or dis- 
 
 turbance generally, without shewing the particular mode,(//) 
 
 ^ 381 *unless in an action against the lord, in which case it is said 
 
 that a particular surcharge ought to be shewn. (e) And 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 
 as that of the niaster, without noticing the servant ; but as the 
 object of pleading is to apprise the opposite party of the facts, 
 it is more correct to state them truly. (/) 
 
 The mode of fi'uuiing declarations for ivritten and verbal 
 ^lander, is pointed out in the precedents and notes in the 2d 
 volumc.(^) Where the slander is /i777?;a ya«> actionable, as 
 for calling a person directly a thief, or stating that he was guilty 
 of /lerjiiry, Sec. a declaration stating the defendant's malicious 
 intent, and the slander concerning the plaintiff is sufficient, 
 without any prefatory iiiduceinait. But where the words do 
 not naturally and fier 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 
 shew that they were actionable, it must not only be stated that 
 such matter existed, but also that the words were spoken of 
 iind concerning it.(A) In such case/bto- distinct positive alle- 
 gations are in general necessary ; as in a declaration for accu- 
 sing a person of having been forsivorn in an answer in cha7ice- 
 rij,(J) Jirst, the fact of such answer upon oath ; secondly, a 
 
 * 382 colloquium or speaking *by the defendant of and concerning, 
 
 or with reference to such answer ; thirdly, the words them- 
 selves ; ixu(.\ fourthly, the innucutlolhat the defendant meant by 
 those words to impute perjury to the plaintiff in such his an- 
 swer, and the omission of the colloquium will not in this case 
 
 (^) Willes, 5-7. 1 B. k P. ISO. ( /) 6 T. R. 659. 1 East, 110. 
 
 L(!. Uayir.. ^5'Z. 3 Leon. 13. ( g) Pajres 255 to '2f>5. 
 
 (A) 3 iLcftn. is. Ld. Raym. 4.52. (A) 8 East, ^-Jl. Post, vol. 2. 255 
 
 Com. D);i-. Actions Case llisturbance, to 2G5. in notes. 
 
 P.. I Sannil. 34fi. a. Po.st, vol. 2. (/) The term /orswo?'n is not in it- 
 
 355. n. X. SCO. n. r. self actionable. 6 T. R. 691. 8 Ea.st, 
 
 (e) 1 Saui.d. 346. a. Post, vol. 2. 427. 
 2r;5. n. X. z.
 
 OF THE DECLARATION. 382 
 
 be aided even by a verdict ;'7) the same rule in general pre- //. Jt.i parts. 
 
 vails in regard to slander injurious to a pei-son in his trade, pro- Fomthiy, tUe 
 
 . cause oi ix.- 
 
 fession, &c.(X') but the general inducement of i^ood character or tion. 
 
 innocence of the particular charge is unnecessary, because tiie 
 law presumes innocence of a crime till the contrary be esta- 
 blished. (/) The slanderous words should be stated as they were 
 Uttered, and proof of words spoken in the third person will not 
 support a count, for words spoken in the second, and vice ver- 
 sa ;{m) nor will words spoken byway of inierrogaiion support a 
 charge of words spoken affirmatively/") However the addi- 
 tion or omission of a word will not prejudice, unless it alter the 
 sense ;(o) and the plaintiff" need not prove all tlie words luid, 
 though he must prove such of them as will be sufficient to sus- 
 tain his action, and it will not suffice to prove equivalent ex- t 
 pressions.(/2) 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 actioi>abIe be 
 stated by *themselves in a distinct count, and entire damages ^ ^p^ 
 be given, judgment will be arrested ;(f/) and words not actiona- 
 ble may be given in evidence in aggravation of damages though 
 not stated in the declaration -fir) and it has even been decided 
 that words actionable in themselves, though not stated in the 
 pleadings, may be proved in order to shew quo animo, the de- 
 fendant spoke the words declared upon.(s) An innuendo " as he, 
 *' (meaning the said plaintiff,)" is only explanatory of some 
 matter already expressed, it serves to apply the slander to the 
 precedent matter, but cannot add or enlarge, extend or change 
 the sense of the previous words, and, as already stated, the 
 matter to which it alludes must always appear from the antece- 
 
 0') 8 East, 430, 431. Post, vol. 2. (/*) 2 F-:ist, 438. Gilb. L. & E. 
 
 255 to 265. And 1 Saund. 242. in 229. 2 Saund. 74. 1>. 1 Salk. 11. in 
 
 notes. notes. Utp. temp. Hai-dw. 721 . 305. 
 
 (^-)Post, vol. 2. 256. n.(s). 259. n.(o). 30fi. 
 
 (/) Ante, 226. Post, vol. 2. 255. n. (a) 10 Co. 131. a. 2 Saund. 307. a. 
 
 {p.) n. 1. 3 Wiis. 185. A'in. Aim Dama- 
 
 (/n)4T. R. 217. RuU. N. P. 5. gcs, Q. 
 
 Post, vol. 2. 264. n. k. (r) Pt-.ike, C. N P. 125. 22. 106 
 
 (7^) 8 T. ri. 150. Bull. K. P. 7. 3 K,sp. Rep. 133, 1.34 
 
 (o) Bull. N. P. 6. Rep. temp. (s) Id. iliid. and the cases i-efurrcd 
 
 Hartlw. 305, 306. to in Campb. N. P. 48, 49. 
 
 ^n 
 
 Vol. I. [ 35 ]
 
 S83 
 
 OF THE DECLARATION. 
 
 * 384 
 
 77. Its parts. <3cnt parts-of the declaration ;(0 bvit when the new niatler sta- 
 rourtlily, the ted in an innuendo is not necessary to support the action, it may. 
 
 cause ot in;- . . . 
 
 lion. oe rejected as surplusage. (;< J 
 
 The statement of the time of committing injjuries ex delicto 
 is seldom material ; it may be proved to have^^een committed 
 either on a day anterior or subsequent to that s^ted in the de- 
 claration •,(v) and in an action on the case for a tiialicious pro- 
 secution it is not necessary for the plaintiff to prove the exact 
 day of his acquittal as laid in the declaration, so that it appears 
 to have been before the action brought, and *therefore a vari- 
 ance 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 acquittal, but if it had been so laid, or if the plaintiff af- 
 fect to stale the teste or return of the process, and misdescribe itj 
 the mistake would be fatal. (v) Where the injuiy was capable of 
 being committed on several days, as in trespass to lands, it may 
 be described as having been committed on such a day, and on 
 divers other days and times between that day and the exhibiting 
 of the plaintiff's bill, or the commencement of the suit; and 
 in such case the first day should be laid anterior to the first in- 
 jurious act, because the plaintiff" would not be permitted to give 
 in evidence repeated acts of trespass, unless committed during 
 the time laid in his declaration, though he might recover as to 
 a single trespass committed anterior to the first d&y.{iv) But 
 where the act complained of was single in its nature, as an 
 assault, it would be demurrable to stale that it was committed 
 on divers days and timcs.(a) 
 
 The filace is only material in local actions, and where the 
 situation of the land, houses, &c. is particularly described, as in 
 trespass and replevin. In transitory actions we have seen that 
 it may be sufficient in general, merely to state that the injury 
 "vvas committed in the county at large, though it is advisable to 
 
 (0 1 Saund. 243. n. 4. 8 East, 430, Co. Lit. 283. a. 1 Sautid. 24. n. I. 
 
 431. 9 East, 95. Gilb. L. & E. IIC, Saund. 295. n. 2. 
 iVr, .Post,.vol. ,2.259. cj. (i;) 9 East, 157. 
 
 (ii) 9 East, 95. (vw) Post, vol. 2. 367, 368. n. (s). 
 
 (r) Post, vol. 2. 367, 368. n. (.v). (x) Id. ibid. 6 East, 395. 391,
 
 OF THE DECLARATION. 384 
 
 follow the usual course of stating a town or parish, in the coun- //. its parts 
 
 ty -/y) and, 'though the action is local, yet it is not necessary to I'ouitlily, the 
 
 cause ot' ftc- 
 give a local description to the nuisance in action for diverting tion. 
 
 the water of a navigation ;(z) a plaintiff in an such an action may * 385 
 
 indeed make it necessary to prove the gravamen in a particular 
 place, by giving it a sf>ecific local situation ; as by alleging the 
 nuisance to be standing and being at a certain place particular- 
 ly described ; but in general such particularity is not necessary, 
 and ought to be avoided. («) However in trespass to land it may 
 still be proper to state the parish or place where the land is si- 
 tuate •,{b) and in replevin the particular place where the dis- 
 tress was made, should be stated, and it will not suffice merely 
 to name the parish. (c) 
 
 In actions for toits, the damages resulting from the injury, 4thl_v. The 
 
 . ... '., , . , ,. statement of 
 
 are frequently, and m some cases necessarily, stated, m addi- the damages^, 
 lion to the usual conclusion of the declaration, ad damnum, he. 
 Damages are termed general or special. General damages 
 are such as the law implies to have accrued from the wrong 
 complained of. S/iecial damages are such as really took place, 
 and are not implied by law, and are either superadded to gene- 
 ral damages arising from an act injurious 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 consequences, as where words become actionable only by 
 reason of *special damage ensuing. It does not appear neces- * 386 
 
 sary to state the former description of damages in the declara- 
 ration, because presumptions of law are not in general to be 
 pleaded. (c) Therefore, though it is usual in an action on the 
 case for calling the plaintiff a thief, to state that by reason of 
 the speaking of the words the plaintiff's character was injured, 
 yet that statement appears unnecessary, because it is an intend- 
 ment of law that the plaintiff was injured by the speaking of 
 such words. ((/) 
 
 (t/) .\nte 279 to 28J. (c) Post, vol. 2. 364. 
 
 (i) 2 Kast, 49". (c) Ante, 226. 
 
 ((/) 2 East, 502. Ante, 270 to 285. 00 Sir W. Jones, 190. i SaunJ, 
 
 (6) Co. Lit. 125. b. n. 2. 2>o. b. n. 5
 
 386 OF THE DECLARATION. 
 
 JI. Tts parts. But when the law does not necessarily imply that the plain* 
 Foui-tlily, the till" sustained damage by the act complained of, it is essential 
 tioji. to the vaiidKy of the. declaration liiat the resuitmg damage 
 
 should be shewn with particularity ; as in an action by a mas- 
 ter tor beating- his servant, or by a commoner for surcharging 
 a common, in which the allegations per guod servitium amisity 
 ov fier ijuod firoJiciu7H comnmniee aue habere non jiotuit are ma- 
 teri-al.Ce-) So in an action for words not actionable in them- 
 selves, but becoming so only in respect of pai'ticular da» 
 mage.(y) And whenever the damages sustained do not ne- 
 cessarily arise from the act complained of, and consequently 
 are not im>,ticd by law, in order to prevent the surprise 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.(5*) 
 *■ 387 Thus, in an action of trespass and false imprisonment, *where 
 the plaiiuiff ofiered to give in evidence, that during his impri- 
 sonment he was stinted in his allowance of food, he was not 
 permitted to do so because that fact was not stated in his de- 
 claration ;(//) and in a similar action it was held that the plaintiff 
 could not give evidence of his health being injured, unless spe- 
 cially stated. (/) So in trespass for taking a horse, nothing can be 
 given in evidence but what is expressed in the declaration, (A-) 
 and if money be paid in order to regain possession, such pay- 
 ment should be alleged as special damage. (/) So in an action 
 for defamation, whether the words are actionable in themselves 
 or not, yet t'ae pluintifl' will not be permitted to give evidence 
 of any pardciiiar loss or injury, unless it be stated specially in 
 his declaration {m) If an action be brought for words not in 
 themselves actiunable, and the plaintiff does not prove the spe- 
 cial damage h.id in the declaraiion, he will be nonsuited ; be- 
 cause the special damage is in such case the gist of the action ; 
 but where the words are of thenvselves actionable, the jury 
 
 (f) 9 Co. 113. a. 1 Sauiid. 340. a. (A) I'eake, C. N. P. 46. 
 b. n. 2. 2Ea.^t, 154. (?) PeaTvC, C. N. P. 62. 
 
 (/) 1 Sauiid. £43. n. 5. Sir W. (k-) I Sid. 225. Yin. Abr. Evi- 
 
 Jones, 19G. dencc, T. b. 6. Holt, 700. 
 
 (_§■) See tlie rule ia assumpsit, ante, (0 Cowp. 418. 
 332. 8 T. R. 133. ('») I Saund. 243. n.-fi.
 
 or THE DECLARATION. 387 
 
 must find for the plaintifT, though no special damage be pro- J^- Its parts. 
 
 vcd (»> Words, thoueh actionable in themselves, and not sta- Fomthlv, the 
 vt-u.v/i-/ » ' o cause of a«- 
 
 ted in the declaraiion, may, we have seen, be given in evidence tiou. 
 to shew the malice of the defendant, but the jury ought not to 
 give damages for such words.(o) 
 
 In trespass, the declaration concludes " and *other wrongs * jS* 
 » to the said plaintiff, theTi ami there did, against the peace," 
 &c. and under this allegation of a/ia e7iorniia, some matter* 
 may be given in evidence in aggravation of damages, though 
 not specified in any other part of the declaration. (//) Thus, in 
 trespass for breaking and entering a house, the plaintiff may in 
 aggravation of damages give in evidence the debauching of his 
 daughter, or the battery of his servants under the general alle- 
 gation alia enonnia, Scc.(y) or this matter may be stated. 
 sp0ciany,(r) Ijut he cannot imder the alia enormia give in evi- 
 dence the loss of service or any other matter which would of 
 itself bear an action, for if it would, it should be stated spe- 
 cially ; and therefore in trespass quare claufiuinf regit, the plain- 
 tiff would not under the above general allegation be permitted 
 to give evidence of the defendant's taking away a horse, Scc.(.s) 
 The particular damage in respect of which the plaintiff pro- 
 ceeds, must be the legal and natural consequence of the words 
 spoken, and not an illegal consequence ;(/) and extra costs are 
 not recoverable as special damage, (u) and therefore in an ac- 
 tion for words it is not sufficient special damage to allege or 
 prove a mere wrongful act of a third person induced by the 
 slander ; as that tlie third person dismissed the plainlift' from 
 his employ before the end of the time for which he was hired ; 
 so if in consequence of the words spoken other persons after- 
 waixis assembled *and seized the plaintiff and beat him, or if the * 339 
 plaintiff sustained any damage in consequence of the refusal of 
 any persons to peiform their lawful contracts with him, such 
 conduct of the third persons cannot be slated as special damage, 
 
 ()i) I Saunil. 243. n. 5. Dull. N. P. {q) Td. ibid. 6 Mod. 127. 
 
 6. SirW. Jones, 190. 2 B. k P. (;•) Id. ibid. 
 
 284. Is) Bull. X. P. 89. Holt, 700. 
 
 (o) Campb. N. P. Ante, 383. Sid. 2-25. 2 Salk. f.4j. 1 Str«. 61. 
 
 (/)) Bull. N. P. 80. Holt, 699, (0 8 East, S. 2B. &P. 289. 
 
 70O. t^sm (k) Camph. N. P. 151, 152.
 
 SS9 ' OF THE DECLARATION. 
 
 //. Its parts, because it maybe compensated in actions brought by theplain- 
 
 lourthly, the tiffaorainst them, and the law supposes that in such actions the 
 
 ^'ori. plaintiff would receive a full indemnity ;{u) but, if the evidence 
 
 will 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 action.(T:;) 
 
 The special damage must be particularized in the declaration, 
 in order that the defendant may be enabled to meet the charge 
 if it be false, and if it be not so stated it cannot be given in evi- 
 dence, and if the action be not sustainable independently of spe- 
 cial damage, the declaration would be bad on demurrer, or in 
 arrest of judgment ;(w) and therefore, a declaration by a vic- 
 tualler for calling his wife a whore, " whereby several cnstomers 
 " left his house," without naming any in particular, is too gene- 
 ral, 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,(t/) or for 
 slandering a single woman, by saying she was with child and 
 
 * OQQ had miscarried, *in consequence of which she lost «eTyer«/ suitors, 
 
 &c. is insufficient.(z) But in an action for consequential damages, 
 arising from slander imputing incontinence to the plaintiff, it is 
 insufficient to state " that he was employed to preach to a dissent- 
 ♦* hig congregation, at a certain licensed chapel situate, See. and 
 " that he derived considerable profit for his preaching there, and 
 " that by reason of the scamldl, persons frequenting the chapel had 
 " refused to permit him to preach there, and had discontinued 
 ♦' giving him the profits which they usually had, and otherwise 
 " would have given," without saying who those persons were, 
 (}r by what authority they excluded him.(«) In stating the 
 damages care must be taken tliat no part of it appear to have 
 accrued after the commencement of the action, though if it be 
 laid under a vidtlictl it will be aided by verdict. (<i) 
 
 (jt) I East, 1. 3. 2 B. &c P. 3S9. ( y) Sir W. Jones, 196. 
 
 (r) Fortesc. '211. 1 Mod. '215. (=) S T. R. 13'2. 1 Sid. 396. 1 
 
 (tf) 1 Siiuml. 243. n. 5. See the Vent. 4. S. C. Cro. Jac. 499. 
 
 prece.kiit, |>ost, vol .'2. '2C1. n. y. 8 T. {a) 8 T. R. 130. 
 
 K. 132, 133. (6) SSaund. 169. in.b. Vin.Abr. 
 
 (.r) Bull N. P. 7. 1 Saund. 2:3. Daniajres, Q. R. 
 n. 5. I Roll, Abr. 58.
 
 OF THE DECLARATION". 390 
 
 ■||pHaving ascertained the mode of stating the cause of action 7/ jts parts. 
 m general, the points relating to several cowits in the same Fifthly, of se- 
 deckration, are next to be considered. The rules as to the'"*"' '^''""'^^ 
 joinder of different ybr;;zs and causes of action, have ah'eady been 
 treated :of,(c) and it is here only necessary to inquire into the 
 statement of the same cause of action in different counts. 
 
 A declaration may consist of as many counts as the case re- 
 quires, and the jury may assess entire or distinct damages on all 
 the counts ;(rf) and *it is usual, particularly in assum/isit, debt * 39X 
 
 on simple contract, and actions on the case, to set forth the plain- 
 tiff's cause of action in various shapes in diffc-rent counts, so 
 that if the plaintiff fail in the proof of one count he may suc- 
 ceed on another.(e) I'he variations should be substantial, for 
 if the different counts be so similar that the same evidence 
 would support each, the court would, on application, refer it 
 to the master for examination, and to strike out the redundant 
 counts, and in grossc ases, direct the costs to be paid by the at- 
 torney :(/) but under the restriction of avoiding as much as 
 possible any unnecessary increase of tlje costs, it is advisable, 
 when the case will admit, to state in various counts the facts 
 in different ways, corresponding with the evidence which may 
 probably be adduced, and such counts are in general progres- 
 sively more brief and concise ; and this is particularly necessa- 
 ry in special assumpsits.^ where there is a doubt either as to 
 the consideration or the terms of the contract, or the mode in 
 which the plaintiff performed his part, or the defendant viola- 
 ted his. Thus in a special action oiassu?n/isit, for a breach of 
 promise of marriage, if the defendant promised to marry upon 
 a particular day, the first count is framed accordingly, but for 
 fear the plaintiff should not be able to prove such particiilar 
 promise, it is usual where the evidence may probably support 
 the allegations, *to add a count to marry on request, another to * 392 
 
 (c) Ante, 196 to 207". tice as to striking out superfluous 
 
 Id) Per Dc Grey, C. J. 3 Wils. counts is so fully stated in Tidd's 
 
 185. ' Prac. 3d edit. 559. 4th edit. 552. that 
 
 (e) .3 151. Com. 295. any further obseiTations upon tha^ 
 
 (/) 1 New Rep. 289. The prac- point are here unnecessary. '
 
 392 OF THE DECLARATION. 
 
 JI. lis parts, marry in a reasonable time, and another to many generally .( g^ 
 Fifthly, of sc- So in declaring on a contract to deliver eoods, Sec. sold, if the 
 
 vera! counts. ... 
 
 Stipulation was to deliver within a specified time, iind at a par* 
 
 ticular place, the first count is to be adapted to such facts, and 
 the second to deliver on request or generully. and the third with* 
 in a reasonable time •,{h) and it is frequently advisable to declare 
 in different counts* the one on an executory, the other on an 
 executed consideration, the first to admit of evidence of the de* 
 fendant's stipulation ut the time of the inception of the contract, 
 the other of subsequent admissions or promises. And we have 
 seen that in an action at the suit of an executor or administra- 
 tor, it is frequently necessary to add a set of counts on promi- 
 ses to the plaintiff in his representative capacity, in order to 
 admit of evidence of a promise or acknowledgment to the pluin- 
 tiff to take the case out of the statute of limitations. (?) It is 
 proper also to add such common counis as may be applicable to 
 ahy part of the phiintiff's case,(y) and after the indebitatus 
 count for work and labour, or goods sold, £cc. it is usual to 
 'd(16. 2. (juantuvi meruit owvalcbant count,(X-) though the latter 
 we have seen may now be considered as unnecessary .(/) In 
 tdebt on simple contracts, legal liabilities, and penal statutes, it 
 may frequently be advisable to vary^th^ statement of the 
 * 393^ cause of action in different *coun^s. But in debt on specialties 
 and records, and in covenant, sts such written evidence cannot, 
 |ft if due care be taken, vary from the statement in the declara- 
 
 tion, one count will in general suffice ; though in an action op 
 a deed, of which a profert or an excuse for it may be necessa- 
 ry, if it be doubtful whether the dei;d be in the possession of 
 the defendant or be lost or destroyed, it may be proper to de- 
 clare in one count, stating the deed to be in the possession of 
 the defendant, and in another that it is lost.(wj) 
 
 In declarations for torts, several counts for the same cause 
 of action are also frequently advisable, particularly in actions 
 for words, which are usually stated in different ways, and some- 4 
 
 (g) Post, vol. 2. 89. (j) Ante, 3;33 to 343. 
 
 (A) Post, \o\. 2. 09. ' {fc) 3 Bl.Com. 29.'!. 
 
 0) Ante, 204, 205. See tUc form^ (0 Ante, 33". 2 Saund. 122. ». 
 post, vol. 2. 56. (})i) i East, 585. I Esp. Rep. SS7
 
 OF THE DEGLARATION. 393 
 
 ' 5» itimes 'witli^Jiflerent innuendoes so as to meet. the prohable.evi- //. Jts. parts. 
 
 y dence.fw) Ii> uespuss if iheie huYC been two or more ussdiilts, S^W- ^^ se- 
 ^ /I 7 Teril counts. 
 
 itjjs^proper to insert as many counts as tliere v.ere assaults, in 
 
 ■^\ order to avoid the prolixity ot making a new assi:i;nrnent, 
 
 i' which mi.^ht be necessary where there have been more assaults 
 
 tban there are counls.((/) So in trespass quare cLauaum frct^it, 
 
 if there have been any asportation of personal property, it is 
 
 usu.d to insert two counts, in the first charging an injury to the 
 
 40' land and takini; the ^oods there, wuich is in its nature local 
 
 9* and must he proved as laid, and in the secoi;d declarinfr mere- 
 
 •* ly for the asportation of the goods, which is iraasicory. and 
 
 may be supported thougli the takins^ *be proved elsewhere. (/•) b)J^ 
 
 And where there has been an aifiortution of person:.! property 
 (which in the case of roots, earth, or other matter ajfixecl to 
 the freehold, must be an actual carrying aivaij) from the land 
 where the same was du.aj. Sec. and not a mere conveyance of 
 it to another part of the premises where the same was dug,.'"/) 
 it is expedient to insert the common asporlavit GOunt<(r) If, 
 however, a declaration in trespass contain two counts, awd the 
 defendant plead not guilty to the first, and suffer judgment by 
 default as to the other, and on the trial the plaintiff only proves 
 one act of trespass, to which the second covmt is appIicaWe, lie 
 . -. i&-not entitled to a verdict on the first.(.s) ,. - . 
 
 iteo;:-.In the adoption of several counts care must be tak«ij that 
 •«i;. there be no misjoinder.(/) The jury may indeed assess entire 
 ">■ or distinct damages on each of the counts.(w) If distinct da- 
 mages be assessed, judgment may he given upon either of the 
 eounts, but if the jury find e77tire damages on all the counts, 
 the judgment must be entire, in which case if .one of the 
 counts be insufficient, judgment will be arrested, or a writ of 
 error be sustainable.(v) and the judgment will be arrested in 
 
 -' '(n^Past,-vol. 2,2G4.ji. (A-), . Inrc- (r) Hultnck, 7-\ to 8-i,- _And see 
 
 plevin, see 2 S.,iiii(Ier.s's Addendn. — 7 Kast, 32.5. And post, vol. 2. 371. 
 
 Vin. Abr.4)e44»H'»t»«», Q, u^{ji)iis to the C'Sts 
 
 (o) 1 Suu.id. 299. n. 6. 1 T. R. (s) 7 T. R. 727. 
 
 479. Post, \'>\.% .372. n. (/). (r) As to miyoiadcr, ante, 105. 
 
 (/>) PerBia!..^r, J. 1 T. II. 479. (?/) Ante, 390. . c 
 
 and see 7 Rust, r,25. (\.) 3 Wils! ^85. -S^aimd. 171. b 
 
 m 
 
 (7) Hullook, 76. Dou-. 722. 730. 
 
 Vol. I. [ 36- ]
 
 394 <^^i'' THE DECLARATION. 
 
 //. Ii3 parts, tola, and no vc7iire de novo awarded. (w) In case, therefore, 
 5thi}'. Ot so- there be an insufficient count, if the mistake be discovered be- 
 
 veral couuts. 
 
 •5(f 395 fore verdict, it is expedient to strike it out by *leuvc of tlie- 
 
 judge, or to enter a nolle prosequi as to such count ; or at the 
 trial to take a verdict only on the sufficient counts ; however, 
 "vvhcre 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 j so where it -.tppears by the 
 judge's notes that the jury calculated the damages on evidence 
 applicable to the good counts only, the court will amend the 
 verdict by entering it on those counts, though evidence was 
 given applicable to the bad count also.(jr) And where judg- 
 ment has been given on demurrer or by nil dicic, in favour of 
 the pUiintifi', he may after entering judgment for himself upon 
 the whole declaration, upon discovering any error in one of 
 the counts, waive his judi^ment on that count and enter it for 
 the defendant. (y) 
 
 The costs also are to be attended to in adding several counts. 
 Where the plaintiff obtains a verdict only upon one of several 
 counts or issues, whether in the King's Bench or Common 
 Pleas, he is only entitled to the costs relating to the trial of 
 such issue ; and the defendant is 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 recover- 
 ^ ed ;(2) and the same rule has prevailed where a defendant has 
 
 succeeded on a demurrer as to part of the plaintiff's demand, 
 ''^ o9Gt '^'^'1 *\.h.e plaintiff has obtained a verdict as to the residue, in 
 
 which case no costs are allow'ed to the defendant in respect of 
 the demurrer ;(a) but if there be two distinct causes of action 
 in two separate counts, and as to one, the defendant suffers 
 judgment by default, and as to the other, takes issue, and ob- 
 tains a verdict, he is entitled to judgment for his costs on the 
 latter count, notwithstanding the plaintiff is entitled to judg- 
 
 (vo) III. ibid. Common Pleas is stated otherwise, 
 
 (x) 2 Saund. 171. b. Doug. 730. but the case 2B. k P. .334. appe.irsto 
 
 (;/) 2 B. & P. 49. have escaped observation. 
 
 Iz) 2B. k P. 334. 5 East, 261. (a) 5 East, 261. Tidd's Prac. 4th 
 
 In Tidd's Pi-ac. 4th edit. 874. n. d. edit. 876. 
 
 and 5 East, 263. the practice of the
 
 OF THE DECLARATION. 39(3 
 
 iiaent and costs on the first count. (/i) Where the plalniifT in ^f- I^^ parts. 
 
 ■it ill V OF se- 
 
 ditferent counts vanes the statement of the same cause of ac- \^y^\ counts. 
 lion for fear of a variance and nonsuit on the trial, and succeeds 
 upon one, it seems reasonable that he should not be punished 
 with the payment of costs in resi>ect of such other of the 
 counts as he may not be able to prove ; but where he unne- 
 cessarily and without foundation proceeds in the same declara- 
 tion in different counts for distinct causes of action, it might 
 be more reasonable to allow the defendant the costs of such 
 improper counts, and of the evidence which the defendant ad- 
 duced to ne;-^ative them ;(c) but the practice appears to be that 
 the defendant is not in either case entitled to costs. (t/) 
 
 In framinrj a second or subsequent count for the same cause 
 of action, care should be taken to avoid any unnecessary repe- 
 tition of the same matter, and by an inducement \ii the first count, 
 applying any matter to the foUowiiig^ counts, and by referring 
 concisely in the subsequent ^counts to such inducement, much * 3;97 
 
 unnecessary prolixity may be avoided, and this is usual in ac- 
 tions for words, and proper to be attended to in all cases. (e) 
 But unless the second count expressly refers to the first, na 
 defect therein will be aided by the preceding count, for though 
 both counts ai'e in the same declaration, yet they arc as disdncL 
 as if they were in separate declarations, and consequently they 
 must independently contain all necessary allegations, or the 
 latter count must expressly refer to the fornier.(y) The com- 
 mencement of a second count, " And whereas also," Sec. is suffi- 
 ciently positive :( g) In order to avoid any objection as to du- 
 plicity, it is advisable to insert in the second count for the same 
 cause of action, the word " other" goods. Sec. (A) but after verdict 
 the court will not intend the goods, Sec. mentioned in the se- 
 
 {{>) 3 T. 11. 6,i4. 6 T. R. 602, COS. Post, vol. 2. 256. 260. Id. 260. ii. (i), 
 
 (c) See Lord Eldon'.s observations And see €ro. Eliz. 240. And as to 
 
 in 2 B. &. P. 335. And Lord Ken- llbel-r,, 2 Bl. Rep. 1038. 
 
 yon's in 6 T. K. COI. (/) Bat. Abr. Pleas and Pleadins;, 
 
 {d) 2 B. k P. 3.55. 5 East, 2f.l. IJ. i. 
 
 (e) See the observations per Mr. (5-) Post, vol. 2. 260. n. (s). 
 
 Justice Lawrence, 7 E.ist, 506. aw\ 2 (A) 2Ld. liayin. 842. 7 .Mod. 14S. 
 
 H-. Bl. 131, 132. 2 Wils. 114, 113. See S. C. Com. Dig. PlfaJer, C. S."}. Sfc.^ 
 
 precedents Crown Cir. .\s?. 114, vide Salk. 21?.
 
 397 OF THE DECLARATION. 
 
 //. Its- p'trts. cond, count to be the same as those in the first, unless it be ex- 
 
 MliJv. Of sc- pj,essiy so stated. (0 ' . 
 
 6i,ily. Tlic 1 he dcclaralion in personal and mixed actions should coti- 
 
 coiiciubion. ,..,.. 
 
 elude toiiic damagf^ oi ilie piaintni ;{]) unless in .^cire facias and 
 
 in pentil actions at the suit ol' a common inlbrmer ; in the lat- 
 * 398 tcr case, the plaintitl's ri.o^ht to the penalty did *not accrue till 
 the brin;jing of the action, and he cannot have sustained any 
 damage by a previous deteniion of tlie penalty, it is not proper 
 to conclude ud davinuiti .{k) In an action by husband and wile for 
 a b.ittery, &c. of the v, ife, or vvhcKever the wife is properly joined 
 in the action, the dccluration should conclude ad damnum, ifiso- 
 rum ;(/) and when the plainuff" sues as executor, adnunistratorj 
 or assignee of a bankrupt, it is usual to state that he was in- 
 jured as such executor, £cc. In debt the object of the action 
 being to recover a sum of money co nomine.^ the damages are 
 generally nominal. (?«) But in assum/mit, covenant, case, re- 
 plevin, tres])ass and other actions for the recovery of damages, 
 th.e sum in the conclusion of the declaration must be sufficient 
 to cover the real demand ;(??) for in general the pLdntiff can- 
 not recover greater damages than he has declared for, and laid 
 in the conclusion of iiis declaralion ;(o) and if judgment be 
 given for more, it is error, and a court of error cannot reduce 
 the sum to the amount st.ted in the declaration. (/?) If, there- 
 fore, the verdict be for more than the damaoes laid in the de- 
 claration, a remiaitur should be entered as to the surplus be- 
 fore judgment. The jury, however, may give a verdict for as 
 much tis is declared for, and also give costs separately, which 
 *■ o99 costs may afterwards be increased by *the court, though such 
 dami;.ges and costs might together exceed the damages laid in 
 
 0) Salk. 213. Bac. Xbi-. Pleas, B. 2. A. 1 Salk. 1 14. Post, vol. 27i. n. (y). 
 
 1. Yin. Ahr. Di'daralion. («) .*. iite, 100. 
 
 CO Cora. Dl^'. Pleader, C. 84. 10 («) 2 Lev. 57. 
 
 Co. Vtf.. h.'Tir. a.l. " (&) 10 Co. 11". a. b. A^in. Abr. Da- 
 
 (/c}i Burr.. 2021. 2490. mr.ges, R. Com. Dig. Pleader, C. 84- 
 
 (/) Com. Dig. Pie;i'l(-.% C. Si. Id. (p) Id. ibid. ~ 5 East, 142.
 
 OF THE DECLARATION. 399 
 
 the declaration. (r) It is usual in practice to state a sum suffi- H- lis parts. 
 cient to cover the real demand, with interest up to the time of J^udusk).').'' 
 final judgment, taking care in actions by original, on account 
 of the fine, not to lay the damages unnecessarily high, and in 
 such action by original the declaration ought not in strictness 
 to vary from the writ in the amount of the damages, but in pro- 
 ceeding by bill a variance in the amount of the damages be- 
 tween the ac ctiain part of the latitat and the declaration, is not 
 material. (.<) 
 
 In point oi form the usual conclusion in the King's Bench, 
 
 ** is to the damage of the said A B of /. and therefore he 
 
 " brings his suit." &c. In the Common Pleas, the conclusion 
 is, » Wherefore the said A B sailh that he is injured and hath 
 
 " sustained damage to the value (or ' amount') of 1, and 
 
 " therefore he brings his suit," kc. In the Exchequer, the 
 
 form runs, " To the damage of the said A B ol 1. 
 
 " whereby he is the less able to satisfy our said lord the king, 
 " the debts which he owes his said majesty at his Exchequer, 
 <' and therefore he brings his suit," Sec. By the above words 
 suit or secta {cl secjiieiulo) were anciently understood the wit- 
 nesses or followei's of the pluintifl", for in former times the 
 law would not put the defendant to the trouble of answeiing 
 the charge till the plaintiff had made out at *least a probable ' 400 
 
 case. But the actual production of the suit, the aecta or fol- 
 lowers is now antiquated, though the form of it still conti- 
 nues. (f) In actions against attornies and other officers of the 
 court, the declaration should conclude unde petit remedium in- 
 stead of bringing suit ;(u) but an inaccurate conclusion in this 
 case is no cause of denuirrer ;(x') however in one case on a 
 special demurrer the court for the sake of keeping up the old 
 established form of " prays reiief," &c. proposed an amend- 
 ment without payment of costs. (x) "When the action is by 
 bill against a member of the house of commons, the bill con- 
 cludes with a prayer of process to be made to the plaintiff, ac- 
 cording to the statute. Sec. 
 
 (r) Vin. Abr. Damages, R. pi. 9, {u) fiilb. C. P. 49. 
 
 10,11. lOCo. U7. a. b. (7) Andr. 247. Barnes, 3. 
 
 (.t) 5 T. R. 402. Ante, 254. (x) Barnes, 16". 
 (0 3 HI. Com. 295. Ciilb. C. P. 48.
 
 400 
 
 OF THE DECLARATION. 
 
 //. Its parts. 
 
 7thly. The 
 profert and 
 piedgos. 
 
 *- 401 
 
 Defects \vhen 
 uukd. 
 
 In an action at the suit of an executor or administrator, im- 
 mediately after the conclusion to the damage, 8cc. and before 
 the pledges, a firofert of the letters testamentary, or letters of 
 administration should be made ;(y) but in scire facias the firo- 
 fert may be either in the middle or at the end of the declara- 
 tion ;(z) and in an action on a note indorsed to the plaintiff by 
 an administrator, no profcrt is necessary, because the plaintiff 
 is not entitled to the custody of the letters of administration, 
 Avhich, however, must be proved on the trial ;(a) and the 
 omission of the profcrt is now aided, unless the defendant de- 
 mur specially for the defect.(6) 
 
 *At the end of the declaration in the King's Bench, by bill, 
 it is usual to add, the plaintiff's zovaxaovi pledges to prosecute^ 
 John Doe and Richard Roe.(c) But in proceedings by original 
 and in the Common Pleas, pledges are supposed to have been 
 found in the first instance before the defendant was summoned, 
 and therefore they are not to be stated at the end of the decla- 
 ration unless in proceeduirgs against attornies, &c.(rf) and in an 
 action at the suit of the king, the queen, or an infant, pledges 
 were not at any time necessary ;(f) and as they have long cea- 
 sed to be real,(/) the statement of them is now unnecessary, 
 and the omission cannot be taken advantage of, even by special 
 demurrer, because ceasante vatione cessat et ipsa lex.(^g) 
 
 If the defendant instead of demurring pleads to the declara- 
 tion, many defects therein, and particularly those which are not 
 substantial, will be aided at common law, either by the plea or 
 by a verdict for the plaintiff.(A) Many of the instances have 
 been stated when considering the different parts of the decla- 
 
 {y) l?;ic. Alir. til. Executor, C. 
 
 (-) Cartli. 69. 
 
 (rt) Wi!!es, 560. 
 
 (/>) 4 Ann.c. 16. s. 1. 
 
 (c) 3 Bl. Com. 295. Co. Lit. ICI. 
 a. n. 4. Com. Dig. Pleader, C. 16. 
 
 (rf) Summ.iry on Pleading, 42. 
 JBarnes, 16.5. 
 
 (e) 8 Co. 61. Cro. Car. 161. Co. 
 Lit. 133. a. Sir W. Jones, 177. 
 
 (/) 3 Bl. Com. £95. Co. Lit. 161. 
 a. n. 4. 
 
 (^) 3 T. R. 157, 158. Barnes, 163. 
 2 H, Bl. 161. Summary on Plead- 
 
 ing, 43. and yet it was enacted by the 
 statute 4 Ann. e. 16. s. 1. that no ad- 
 vantage shall be taken of the omis- 
 sion of pledges, w^jfess assigned spe- 
 claUtj, as cause of dermtrrer, thereby 
 admitting the omission to be an ex- 
 isting objection, and since that statute 
 leave has been given to amend, see 
 1 Wils. 2-26. 2 Wils. 142. Rep. temp. 
 Hardw. 315. Fortes. 330. Barnes, 
 163. Palmer, 518. 
 
 (/)) Com. Dig. Pleader, C. 85. 8r 
 and the cases there collected.
 
 OF THE DECLARATION. 401 
 
 ration ; the general rule appears to be that if the declaration be de- //. Its parts. 
 fective *in point of form, as wanting time, place, or other cir- l^efects when 
 cximstances, it may be aided by the filea ;\i) and in some instan- * 40^"^ 
 CCS even in matters of substance ;(X-) thus in an action of tres- 
 pass for taking goods, not stating them to be the property of 
 the plaintiff, the defect will be aided if the defendant by his 
 plea admit the plaintiff's pi'operty.C/) After verdict^ if the 
 issue joined be such as necessarily to require on trial, proof of 
 the facts defectively or imperfectly stated, or omitted, and with- 
 out which it is not to be presumed that the judge would direct 
 the juiy to give, or the jury would have given, the verdict, such 
 defect, imperfection, or omission, is cured by the verdict at 
 common laiv.(m) In short the court will infer almost any thing 
 after verdict ;(ra) and want of certainty in the description of the 
 consideration or of the contract itself will be thereby aided ;Co) 
 but this rule must be taken with some qualifications which will 
 hereafter be more fully stated (/.') and the defects aided by dif- 
 ferent statutes will also then be considered. 
 
 («■) Id. ibid. 1 Sid. 184. Plowd, {in) 1 Saund. 228. a. n. 1. and cases 
 
 182. 8 Co. 120. b. there collected. 7 T. R. 522. Tidd's 
 
 (k) I Sid. 184 1 Plowd. 182. and Trac. 4th edit, 
 
 see tlie cases collected in Com. Dig. (n) Per Ld. Eldon, 2 B. & P. 259. 
 
 Pleader, C. 85. Ante, 261. But see (o) 2 B. k P. 265. 
 
 8 Co. 120. b. (/<) 2 B. & P. 259. 1 Saund. 228. 
 
 (0 1 Sid. 184. n, 1.
 
 405 
 
 CHAP. ^". 
 
 WI THE CLAIM OF CONUSA?fCE, AI'PEAUANCE AND DEFENCE, 
 OYER, AND IMPARLANCES. 
 
 XJErORE wc consider the different pleas in personal actions 
 it may be proper in this chapter to exaniine a few points re- 
 lating to the claim of conusance, appearance and defence, oyer 
 and imparlances. 
 conusance. The claim of conusance(a) is defined to be an intervention by 
 
 a third person, demanding judicature in the cause against the 
 pliiintifT, who has chosen to commence his action out of the 
 cLimant's court. (6) It is a question of jurisdiction between 
 the two courts. (c) and not between the pLiiniiff and defendant, 
 as in the c;.se of a plea to the jurisdiction, and therefore it must 
 be demanded by the party entitled to conusance, or by his re- 
 presentative, and not by the defendant or his attorney. W) A 
 plea to the jurisdiction *must be pleaded in person, but a claim 
 of conusance may be made by attorney, (e) Hence the consi- 
 deration of this claim njight, on first view, appear foreign to a 
 
 (rt) As to conusance in trcneral, see and ple.ts to the jurisdiction, and in 
 
 Giib. C. P. 192. Sic. 1 Seilon, Cli. 7. abatement. 
 
 Ti(kl, Ch. 2". Yin. Abr. Conusance. (6) 2 Wi!s. 409. See tlie precedents 
 
 Com. Dig. Courts, P. Bac. Abr. in Rast. Ent. 128. Willes, iSS. 2 
 
 Courts, D. 3. 3 Bl. Com. 23S. As "\Vi!s. 4lO. 
 
 it is stated, that the claim of conu- {a) Fortes. Rep. 157. 5 Viii Abr, 
 
 sance should be m.ade Ih'forn defence, 588, 589. S. C. 
 
 see 3 Bl. Coin. 298. I have consider- ((/) Fortes. Rep. 15". 5 Vin. Abr. 
 
 ed the nature of such claim anterior 588, 589. 5'».>. 596. 600. 12 Mod. 666. 
 
 to defsiice and imparlance, oyer (e) 2 Wils. 410. 5 Via. Abr. 599.
 
 OF THE CLAIM OF CONUSANCE. 404 
 
 treatise of this nature, but as it is frequently made at the insti- L Claim of 
 
 gation of the defendant, and affects the pleadings, it is proper <^<'""*""^''- 
 
 to be concisely inquired into. This claim, when made upon 
 
 the courts at Westminster^ is not encouraged, and therefore the 
 
 greatest accuracy must lie observed in the time and manner of 
 
 making it.(/) It may be considered with reference, 1st. To 
 
 the several sorts of inferior jurisdictions ; 2dly. To the actions 
 
 in which conusance may be claimed ; and 3dly. To the time 
 
 and manner of claiming it. 
 
 According to the various decisions collected in finer's 
 Abridgment ^{g) there are three soris o( inferior jurisdictions. 
 The ^rst is by grant tenere filacita, which is of the lowest de- 
 scription, and is merely a concurrer.t jurisdiction, and can nei- 
 ther be claimed nor pleaded ; and where priority of suit gives 
 one court the preference.(//) The second is by grant habere 
 cognitioneni fdacitorum^ and this must be limited as to 
 place, and being intended for the benefit of the lord, may 
 be claimed by him, though it cannot be pleaded by the de- 
 fendant to the jurisdiction. The third is by grant habere 
 cognitioneni fdacitoriim with excliidve ivords, as where the king 
 grants to a city that the inhabitants shall be sued within the 
 city *and not elsenuhere, and this may follow the person, and ^ 4Q5 
 
 need not be confined to any place, and being an exempt juris- 
 diction may be either claimed by the lord, or pleaded by the 
 defendant, to the jurisdiction ; but even in the latter case, the 
 proceeding in the superior courts must be oljjected to in the 
 first instance by claim of conusance, or plea to the jurisdic- 
 tioH.(z) Hence, it is a general rule, that where the defendant is 
 at liberty to plead to the jurisdiction of the court, the lord of the 
 franchise may claim conusance, but not vice versa.ij) Where 
 two persons claim conusance, it is to be granted to him who 
 first demanded it, and the right of the parties claiming conu- 
 sance, must be tried in another action between them.(X) 
 
 (/) See the reason, 2 Wils. 408, Westminster, is in t- ect taken away 
 
 409. Wiiles, 237, 238. by iiifTercnt statute^, a i : in such 
 
 (^) Tit. Conusance, vol. 5. 559. ca.se the objection niaj" be (.leaded in 
 
 See also Com. Dig. Courts. P. Bac. bar, or given in evidence under the 
 
 Abr. Courts, D. Fortes. R jp. 1.t6. general issue. See 1 East, 352, 6 
 
 (/i) Id. ibid. 10 Mod. 126. Hardr. East, 583. 
 509. Palm. 456. 12 Mod. 643. (./) Giib. C. P. 193. 
 
 (0 Id. ibid. Andr. 198. ' In some [k) 5 Yin. Abr. 599 
 cases the jurisdicuon of the couits at 
 
 Vol. I. [ 37 ]
 
 403 OF THE CLALM OF CONUSANCE. ^|| 
 
 / C'nim "f 'i '"'^ privilej^e of cluimin^ conusance is confined to courts of 
 amusiince. record unless in the case of ancient demesne ;(/) and to local 
 actions ;hn) except where the defendant is a member of the 
 university of Oxford or Cambridge ;M it is also confined to 
 such actions as were in esse at the time of the grant ;(f-') and 
 decs not extend to those created since by act of parliament, 
 except where a common law action is given against a person 
 l>y anoUier name, as debt against an administratov.(/0 Neithef 
 * 406 vviil this privilege be *allowed, where the court claiming conu- 
 
 sance, cannot give remedy,(y) and when there would conse- 
 quently be a failure of justice ;(?•) as in replevin, because if the 
 pKiintiH' be nonsuited, a second deliverance should be granted, 
 wliich the franchise cannot issue ;(.s)norin r/uare im/iedit,heca\ise 
 the inferior court cannot send a writ to the bishop, (/) nor in 
 Avaste, or where the lord is a party and the plea is to be holden 
 before lun^self ;Ci/) or wliere the defendant is a stranger who 
 hath nothing within the franchise, (i') or where ihe /ilaijitiff is 
 a privileged person, as an attorney or officer of the court,(TO) 
 and it also seems tliat the court cannot grant conusance in 
 part ;'x) though upon a plea in al)atement, the writ may abate 
 as to a part (^/) Conusance may however be claimed, where 
 the defendant is in the actual custody of the marshal.(r) 
 
 With respect to the (i?)ie when conusance should be claim- 
 ed, it should be after the defendant has appeared, because till 
 then there is rio cimse in court, and the defendant might coun- 
 terplead the conusance. (fl) It is said that it should be before 
 
 (/) 2 r;ii!). c. p. I'ji, 10':. 2 imt. (-•) 1 iinii. Abr. 493. pi. ic. 1. 48.— 
 
 ]40. Willcs, 230. 5 F,ast, 2S4. 22 Ass. S3. 
 
 (w) i Inst. 213. 1 Si<J. 10.^1. (u'j Wilies, 233. 3 Leon. 149. Lit. 
 
 (;/) <iilb. C. P. 193. Bac. Abr. 102. Tlcp. 3(4. Harnes, 340. 5 Yin. Abr. 
 
 Moo<Ii!. Inst. 521, .522. 590. S. C. Id. 592. arc. Uendl. 2.33- 
 
 (t.') 14 Hei(. IV. 20. B. contra, nor where the defendant is 
 
 (/;) III. £2 El! vv. IV. 22. an HUorncv, sec Yin. Abr. 572. 1 
 
 (y) 2 Ye:itr. 3fi3. Hoil. Abr. 489. ace. 5 \iiu Abr. 594. 
 
 (r) Id. ibid. Hard. 50" contra. 
 
 (.s) 2 Inst. 140. (.r) 5 \\n. Abr. 597. 1 Roll. 495. 
 
 \t) Bac. Abr. tit. Courts. D. .3. Q/) 2 Saund. 209, 210. in notis. 2 B. 
 
 (w) 8 Hen. VI. IS, 19, 20, 21. Hob. & P. 420. Rep. temp. Hardw. 273. 
 
 87. Ste the singuliii' argument, 3 Bl. (;) 1 Saik. 2. Gilb. C. P. 195. Bro. 
 
 CtJia. n. d. 299. Abr. Conu.iaiice, 50. 
 
 (</) Gilb. C. P. 196. Comb, 319.
 
 OF THE CLAIM OF CONUSANCE. :^4.07 
 
 i'ull dcfence,(3) and accordintj to the *entiics, it is lo be made T. dun of 
 before any defence, immediately dfter the suuement of the dc- "*'"""''''• 
 fcndiint's appearance, (c) and it is an established rule of law, 
 " tliat it must be claimed in the first instance or at the first 
 " day>"(''/) and consequently it should be made before inipar- 
 lance ;(<) though in general where a declaration is deli\ered 
 ill vacation as of the preceding term, the claim or coiuisunce 
 may be entered on the first day of the following term, as of tlie 
 preceding terin.(/) Where the vrit discloses the parlicuUirs 
 of the cause of action, it appears to have been considered us 
 legal notice to the lord, S:c. of the invasion of his juiisdiction, 
 80 as to make it incumbent on him to claim coiuisance on the 
 very first day the defendant hath in court, even upon the re- 
 turn day of the writ ; but v.hen the writ does not disclose the 
 precise cause of action, then it is sufiicient to make the claim 
 on the first day given upon the declaration. (5) 
 
 In point of ybr;/7,(/7) conusance may be claimed by the lord 
 of the franchise, or by his bailifl' or attorney. (/") If it be 
 claimed by attorney, the warrant of attorney must be pro- 
 duced in court and filed. (y) The grant of conusance must 
 also be produced. U) or an exemplification of it under *the * 4Qg 
 great seal;C/) and if the grant was before time of memory, 
 an allowance must be shewn in the King's Bench, or be- 
 fore justices in Eyre, or confirmation by patent, (m) and it 
 cannot be claimed by prescription. (/O Upon a claim made by 
 the university of Cambridge, {0) there must, in addition to the 
 grant, be an exemplification of the private statute confirming 
 
 (6) 3 Bl. Com. '298. But .see 5 Vin. (/) Rro. Abr. tit. Coiius:»nce, .50. 12 
 
 Ahi-. 597. I Uoll. Aljr. 495. Mod. fiU. Citifi. See the entr^,R-e.i{. 
 
 (c) Uast. lint. 128. 2 V\ Us. 410. Eiit. 1-2S. Willes, 2;34. 
 
 {({) 5 Burr. 2823. Rep. temp. (,/) See the lorni, Wiiics, 233, 234. 
 
 Hanhv. 241. 2 Wils. 411. \\\\W%, P.ilm. 456. 1 Sid. 103. I Lev. 89. 2 
 
 233. Y\ lis. 4oG. 
 
 (e) Id. ibid. 2Wi!s. 411. Willeis, (A) 12 Mod. 644. 1 Bl. Hep. 454. 
 
 233. 3 Bl. Coin. 29S. 10 .Mod. 127. (/) 5 Rm-r. 2820. 
 
 Fortes. LS?. («0 Keilw. 189, 190. I Sid, 103. 
 
 (/) 2 "Wils. 411,412. 1 Salk. 183. iLd. K:.jni. 427, 42S. 
 
 (§■) 5 Bun-. 2823. 2 Wils. 4l3. 10 475. S. C. Gilb. C. 1'. 195. but see 
 
 Mod. 127. Bi-o. Abr. tit. Conusance, 51. 
 
 (/,) Com. Dig. tit. Comts, P. 3. («) Com. Di^. tit. Courts, P. 3. 
 
 Ra.st. EiU. 128. {<•) 1" ^J"'l- l-'>- I Kl' Hep. 45l*
 
 408 OF THE CLAIM OF CONUSANCE. 
 
 7. Chum of it,(/z) together with an affidavit of the defendant's residence.(7j 
 i he claim itseit must be entered upon a roll. (.rj It being a 
 demand of something (jnod sibl dcbetur^ it must be perfectly 
 entered upon record, and must state every thing that is to take 
 away tlie general jurisdiction of the superior courtj and tht 
 nvhol" ought to be set forth ivlth all the. jiroceedings in the caune 
 in the superior court till the instant of making the claim, and 
 after stating the proceedings, the entry runs thus : " And the 
 " said delendant by E F^ his attorney comes ;" {but the de- 
 fendant nays no more nor makes any dcjlncc, and then the entry 
 
 proceeds as- foilows) " and hereupon comes , chancel- 
 
 " lor of tlie university of Oxford^ by G //, his attorney, to 
 " demand, claim, prosecute and defend his liberties and privi- 
 " leges thereof, that is to say, to have the conusance of the 
 " plea aforesaid, because he saith," &c. {setting out with great 
 precision all the circumstances on ivhich the claim is founded^ and 
 concluding thus:) " and the said chancellor demands his liber- 
 
 * 409 " ties and privileges aforesaid, according *to the form and ef- 
 " feet of the letters patent aforesaid, and the confirmation afore- 
 " said, in this plea between the parties aforesiiid, here in the 
 " court of our said lord the king now depending, to be allowed 
 " to him, as heretofore hath been allovjed"{s^ though the lat- 
 ter words are not necessary, where the franchise is given by 
 act of parliament. (/) 
 
 The claim of conusance if insufficient in form or substance, 
 jnay be demurred to, or the facts therein alleged may be tra- 
 versed by the plaintifl".(zO If the claim be disallowed on demur- 
 rer, the judgment, after the usual entry oi curia advisurevult, 
 and giving day to hear judgment, as well to the plaintiff, and per- 
 son 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 consi- 
 dered that the said. Sec. (the person claiming conusance) have 
 not his aforesaid liberty, in his said plea mentioned, and it is 
 
 (p) 1.3 Eliz. c. 29. 2 Wils. 412. (s) Per Wilmot, C. J. 2 Wils. 409, 
 
 (f/) 1 Barn. K. B. 49. 05. 2 Stra. 410. Rast. 128. Willes, 234. 
 
 810. 2 Wils. 311. 1 Bl. Rep. 454. (^ Id- ibi'l- 
 
 5 Burr. 2S20. (ii) 2 Wils. 410. Comb. 319. Ras(. 
 
 (r) Conil). 319. 1 Barn. K. B. Co. Eut. 129. 
 
 2 Stra. SIO.
 
 OF THE CLAIM OF CONUSANCE. 4q9 
 
 commanded by the said court, as well to the said, &c. (the per- 1- Claim of 
 ... ■ , , • 1 1 r 1 , , conusance. 
 
 son claiming conusance) as to the said deiendant, that to the 
 
 ■\viit and count aforesaid, the said defendant do answer, &c. and 
 thereupon the said defendant defends the wrong and injury, 
 when, &c. and prays leave to imparl. Sec. and the pleadings 
 proceed as usual, (f) 
 
 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 com- 
 manded to be there *on that day.(iv) But the record stiil re- ^ t^r. 
 mains in the court above ; and a transcript only is sent down to 
 the court below,(w)in order that if justice be not done there, as 
 if the defendant be a stranger, and bus nothing within the fran- 
 chise, by which he can be summoned, or if the judge refuse 
 to do justice, the plaintiff may have a resuvnnons upon the re- 
 cord in the court above, (j?) the cause assigned in which resum- 
 mons may be traversed by the party, who originally claimed 
 conusance ; and if found for him, the cause will be remanded ; 
 but if found against him, the parties go on in the superior 
 court, from the period or situation in which the cause was at 
 the allowance of the claim, just as if such claim had never been 
 allowed. (j/) And if a resummons issue, upon failure of right 
 in a franchise, the lord of the franchise shall never afterwards 
 have conusance of that plea.(2) 
 
 Before we inquire into the qualities and parts of the various II. .Ipjjear- 
 pleas in personal actions, it is advisable to consider the state- ""^''^ ""'^ <'^- 
 ment of the defendant's afifiearance^ of his defence, of the de- 
 mand of oycr^ and of imjiarlances^ which, when they occur in 
 pleading, usually precede the statement of the subject matter 
 of the defence. The language of the plea, and of the entry 
 on the record of these allegations is thus : "And the said C 
 " Z), {the di'fendant^) by E E\ his attorney, comes *and defends 
 " the wrong (or in trespass ''■force") and injury, when, See. and 
 
 * 4U 
 
 (tj) Rast. 1-28. b. (x) 2 Wils. 411. \2 Mod. 644. 
 
 (v) Rjist. K.it. 129. 2 Wils. 411. 2 Harrlw. .507. But see 5 Vin. Abr. tit. 
 
 L(l. Uaym. 836, 837. 12 Motl. 644. Conusance, .589. 10 INInd. 127. 
 
 3 Salk. 79. S. C. (,,) 2 Wils. 411. 6 Vin. Abr. .S, 4. 
 
 (w) Id. Jcnk. 31. 5 Via. Abr. 599. (:) Jenk. 34. 5 Vin. Abr. 576. 588.
 
 Jtll OF APPEARANCE AND DEFENCE. 
 
 //. Appear- « craves oyer of the said vvritincr obligatory, and it is read to 
 
 ance and de- . o a j > 
 
 fence. " him, Sec. he also craves oxjer of the condition of the said wri- 
 
 " ting obligatory, and it is read to liim in these words : The 
 " condition, SiC. {selling out thf coiidiiion verbatim.) Which 
 " being read and heard, the said C D prays leave to inipurl 
 
 " to the said declaration until next after , and 
 
 " it is granted to him, and the same day is given to the said 
 " J B, {the /ilaintiff) here, &c. At which day, to wit, on 
 
 " • next after , at IVci^tminster aforesaid, come as 
 
 " well the said A B, as the ^aid C ZJ, by their respective at- 
 " tornics afoi'esaid ; and the said C D saith, tiiat the said A 
 " B ought not have or mainiain his aforesaid action thereof 
 " against him, l)ecause he saith that, £cc. {stating' the ground 
 « of drf,nccy\,) 
 
 The above " venii" is the statement on record of the defend- 
 ant's appearance in court, and is snid to be necessary to make 
 him a party to the suit, because dicit without ■v):nit might be 
 ore tcnufs.{t~) It has however been decided that the word veitit 
 is no part of the pica, so that if defence be marie without it, 
 it is good, for the defendant's making defence shews him to be 
 in court, and makes him a party in the plea, particularly where 
 he appears to be in cu.'itodia.(jt) When the defendant pleads 
 in a cliHerent name to that in which he is sued, whether in 
 * 412 abatement or in *bar, the statement of appearance must not be, 
 " and the said C D comes," 8cc. but should be, " and C D, 
 " (the real name,) against whom the said ji B hath exhibited 
 
 " his said bill by the name of E D, by , his attorney, 
 
 " comes and defends," 8cc iv) In general the appearance may 
 be stated to have been in person or by attorney, according 
 to the fact, but in an action against d^fevie covert sued alone, it 
 must oe alleged that she appeared in person ;(w) and an infant 
 must plead by guardian, and not by attorney or ftrochcin amy.(x) 
 And in pleas to the jurisdiction, the appearance must be in 
 
 (.i) See the form, 3 Bl. Cora. Ap- (r) 3 Wils. 413. 5 T. R. 487. 3 
 
 pcixlix, Xo. 3. Went. 210. Willos, 41. ii. c. 2 Sauiid. 
 
 (0 Skin. 582. Tiib. C P. \<if,. •209. I), n. 1 . 
 
 Bac. Abr. Pleas, D. Com. Dig. Abide- (w) 2 Siiaiul. 209. c. Post, vol. 3. 
 
 mesit, I. 16. Lutw. 8, 9. Co. Lit. 127. 40'i. 
 
 t. (x) 2 Sauiid. 117. f. n. 1. lb. 212. 
 
 (m) Salk. 544. Skill. 5S2. Com. a. n. 4. Post. vol. 2. 410. 
 Dig. Abatement, I. 16.
 
 OF APPEARANCE AND DErEXCE. 412 
 
 person. fv) And though several altornies in partnership may IT. Jlppear. 
 
 ,- , . .Ill 1 ^ ''""^^ ""'^ ^^*- 
 
 bc retained by the defendant, he can only plead by one, and not .^^^ 
 
 in the name of the firm.Cr) 
 
 After the statement of the appearance follows the defence^ 
 which is defined to be the denial of the truth or validity of the 
 complaint, and does not signify a justification. It is a general 
 assertion that the plaintiff" has no ground of action, which as- 
 sertion is afterwards extended and maintained in the plea. (a) 
 This is so essential in pleading, that formerly if no defence 
 were made, ih.ough the plea were in other respects sufficient, 
 judgment was given against the defendant. ('^) *\r\ scire Judas, * ^\^ 
 however, no defence is made ;(c) and it is not neces5ary in a 
 plea of ancient demesne. (c/) or to the jurisdiction of an infe- 
 rior court having no jurisdiction of the matter, though it is 
 otherwise when the plea relates I'ather to the person than to 
 the sul)ject matter of the action. (f) Where, however, an at- 
 torney of the Common Pleas was sued in the King's B^nch, 
 and pleaded his privilege without a defence, it was held suf- 
 ficient. (./") Defence is of two descriptions, first, half defence 
 which is as follows, " vcnit et defendit vimet vijuriam ct dicit," 
 he. or secondly, full defence, " vc7:i( ct defendit vim ct ivjuriam 
 " (jitando" &c. (meaning " (juando et ubi curia consideravit" 
 or when and where it shall behove him.) " et damna et auicrjuid 
 " quod ifise defendere debet et dicit" Sec. (5) In strictness the 
 words " quando" &c. ought not to be added when only half 
 defence is to be made, and after the words " venit et difendit 
 " vim ct injuriam" the subject matter of the plea should im- 
 mediately be stated.(/i) It has, however, now become the 
 practice in all cases, whether half or full defence be intended, 
 to state it as follows : " And the said C Z), by , his al- 
 
 {y) 2 Saund. 20D. b. c. (a-) Mac. Alir. Pleas U- 
 
 (2) 4 East, 195. ( /") I Salk. 39. Bac. \\n\ Picas, 
 
 (a) 3 Bl. Com. 296. Co. Lit. 127. D. 
 
 b. As to defence ill general, seethe (^'•) Co. Lit. Vll . b. Bac. Abr. 
 
 same references, and Bac. Abr. Pli^as, D. Ua.st. Eiit. f).')2. AA'illes, 
 
 Picas, D. and 8 T. R. 631. 41. Gilb. C. P. 188. S T. R. C.^S. 
 
 (6) Co. Lit 127. b. Bac. Abr. See tbe forms, 3 Bl. Com. Appendix, 
 
 Pleas, D. Willes, 4l. But see No. 3. Post, vol.2. 409. 
 
 Skin. 582. (A) Gilb. C. P. 1S8. 8 T. R. 63^ 
 
 (c) 3 Lev. 182. 3 B. k P. 9. n. a. 
 
 (</) 3 Lev. 182. Ld. Raym. 117.
 
 413 OF OYER. 
 
 //. Jppear. " torncy, comes and defends the wrong (or in trespass force) 
 fence. " '^^^ injury, when^ &c. and says," which will be considered 
 
 * 414 only as half defence in cases where *such a defence should be 
 made, and as full defence when the latter is necessary. (/) If 
 full defence were made expressly by the words " when and 
 " where it shall behove him," and " the damages and what- 
 " ever else he ought to defend," the defendant would be pre- 
 cluded from pleading to the jurisdiction or in abatement, for 
 by defending when and nv/ierc it shall behove him, the defend- 
 ant acknowledges the jurisdiction of the court, and by defend- 
 ing the darnagcn h.e waives all exceptions to the person of the 
 plaintifr.(y) Want of defence being only matter of form the 
 omission is aided on a general demurrer.(X.) 
 
 Jir. Of oiicr. The statement in a plea of oijer and of the deed follows the 
 defence and precedes the entry of imparlance.(a) It is a prayer 
 or petition, that the party may hear read to him the deed, &.c. 
 stated in the pleaduigs of the opposite parly, and which deed 
 is by intendment of law in court, when it is pleaded with a 
 prqfert.(6) 
 
 If the plaintiff in his declaration necessarily make a firofert 
 of any deed, probate, letters of administration, &c. the defend- 
 ant may pray oijer^ which cannot in such case be refused by the 
 
 ^ ^-1 ■- court ;(f) *and if the deed be lost or destroyed, the plaintiff 
 
 should declare accordingly, whereby the defendant would be 
 precluded from praying oijcr^{d) but if a profcrt be unneceasa- 
 
 (/) S T. Tv. f)j3. ■\Vil!e.s, 41. 3 B. ilenianil of oyer has been so fully 
 
 k P. 9. 2 Saiunl. '209. c. considered in the works referred to 
 
 (j) 2 Saiind. 20'J. c. 3 Rl. Com. in this note that it m ill be sufficient 
 
 297, 298. Co. Lit 12". b. Bac. Abr. hereto confine o\ir attention to such 
 
 Picas, D. points as relate to pleading. Tidd's 
 
 {k) 3Salk. 271. Prac. .3d edit. 526 to 531. 4th edit. 
 
 (a) Ante, 411. but see an instance 51S to 523. 1 Sell. Prac. 285 to 291. 
 
 of oyer after imparlance, 1 Saund. 3. 1 Saund. 9. Com. Uig. Pleader, P. 
 289. (c) 2Stra. 1186 3 T. R-. 151. As 
 
 (6) 3 Bl. Com. 299. SSalk. 119. to when a profert is necessary, see 
 
 12 Mod. 598. Bac. Abr. Pleas, I. 12, ante, 348 to 350. 
 13. 1 Sid. SOS. (ICC. Lutw. 1C44. {d) Ante, 350. 
 contra. The practice relative to the
 
 OF OYER. 415 
 
 rihj made, the defendant musl picad without oyer/^e) ihoup,li /// Of oij.-r 
 if it be craved and ^iven, he iias a ri.Q;ht to make use of it.(/) 
 Oyer was formerly allowed of the orii^irial writ in oir'tr to de- 
 murer plead in abatement for any insufficiency or variance l)e- 
 tween the writ and declaratioti ; but this practice was altered 
 by rule of court, and if the defendant demand oijcr of the v.iit, 
 the plaintiff m ly proceed as if no such demand had been 
 made,(^) nor is o;/fr demandJ)!e of a record ;(/2) and as it can- 
 not be granted of any deed, &c.whicli is not j^resumcd to li.we 
 been broui^ht into court, the defendant cannot in an action up- 
 on a bond conditioned for performance of covenants in anoilier 
 deed crave oyer of such deed, Imt he and n<jt t!ie pKantilf 
 must shew it, or the counterpart with a prufcrt or an t-xcusc 
 for the omission, though the court mis^ht compel the plaintiff 
 to ijive the defendant a copy to cnabie him to plead ;(/) if, 
 however, oyer be improperly crcved and the deed be stated 
 upon it, the defect in the plea will be aided on a general de- 
 murrer. (7) If the defence be founded upon any objection to 
 the form of the bond, as where a tjuil-bond *has been given to ^ 416 
 
 the sheriff, but not by his name of office ; and tlie defect do 
 not appear on the face of the declaration, oyer mii&i be craved, 
 and after setting forth the i)ond, the defendant may demur. (Xr) 
 And in an action at the suit of an administratrix, the defendant 
 should crave oyer^ and set out the letters of an administration, 
 if he wish to avail himself of any variance in the statensent of 
 them in the declaration .(/) ho if in the declaration, any part 
 of a deed qualifying or rendering the defendant's contract dis- 
 similar to that stated, be omitted or misstated by the plaintiff, 
 the proper mode is for the defendant to pray oyer, and after 
 setting out the deed in hxc verba^ to demur. (?«) And in plead- 
 
 (e) 2 Salk. 497. 1 T. U. 149, 150. 2.37. Aleyn, 72. 1 Sid. .50. 97. 425. 
 
 Ante, S.i(». Biic. Abr. Pleas, I. 12. Set llic pi-e- 
 
 (/) Dou;,'. 476. 1 SiUUKl. 317. n. cedents, |>ost, vol. 2. 4S3. 1 Sauiul. 
 
 2. 52. and id. 10. n. 1. 
 
 (§•) U.T. 19 Geo. III. Doug. 227, (./) Id. ibid. 
 228. 3 B. k P. 398, 399. 1 B. k P. {k) Ld. Uayra. 1135. 2 Saund. CO. 
 
 64G. n. b, 11. 3. 366. i\. I. 2T. R. 575. l>ae 
 
 (A) 1 Ld. Raym. 250. 347. Doug. Abr. Picas, I. 12. 
 476. I T, H. U9. (/) 2 \\\U. 413. 
 
 (0 1 Saund. 9, 10. n. 1. 6 Mod. (w) 2 Sauud. 306. n. 1. 
 
 Vol. I. [ 38 j
 
 416 OF OYER. 
 
 ///. Of oijer. in^ payment or perfomnance of the condilion of a bond the de- 
 fendant should se' forth the condition alter craving oycr.(n) 
 But it is necessary in an action on a bond or deed, conditioned 
 for tiic performance of covenants in another deed, for the de- 
 fendant in iiis pica of performance, to shew such deed without 
 craving- oyer.(^o) 
 
 Where either the plaintiff or the defendant omits in plead- 
 ing any material part of an indenture, &c. which he is bound 
 to state, the only way by which the other party can relieve 
 himself is by praying oi/cr of the indenture, Sec. and setting 
 •''^ 417 it out in ha:c verba, for he cannot plead, that by *the said in- 
 
 denture, it was further agreed, k.c.(/i) 
 
 'io deny oycry when it ought to be granted, is error, and in 
 such case, the party making the claim, should move the court 
 to have it entered on record, which 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 ;(y) 
 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 judgment the defendant may bring a writ of error, for to 
 deny oyer when it ought to be granted, is error, but not e co?i- 
 vei'soSsJ 
 
 Oyer having been granted, the defendant (unless in pleading 
 performance of the condition of a bond) may, in his plea, set 
 forth the deed on oyer, or not, at his election, for he has a right 
 lo see whether the plaintiff is in a situation to sue, and may af- 
 terwards plead non est facium, or any other plea, without sta- 
 ting the oyer.U) If he do not set forth the indenture on 
 oyer, it seems that he canuot plead, " that by the said inden- 
 
 (?j) Pnst, \ol. 2. 4fiO. 481. 3Keb. (/») 1 Saund. 317. n. 2. 1 Stra. 227. 
 
 708. Tn Lill. Prac. Reg. tit. Over, it (y) 1 Saund. 9. b. n. 1. Bac. Abr. 
 
 is said, that the defendant may plead, Pleas, I. 2 Salk. 498. 2 Ld. Raj m 
 
 if he please, v, itliout oyer ; for he 970. 2 Lev. 142. 6 Mod. 2S. 
 
 may take upon himself to remember ()■) Id. ibid. 2 Lev. 142. 6 Mod. 
 
 flic bond without hearing it ; but see 2S. 
 
 Hutt. 33. iKeb. 513. 1 Saund. 317. (s) 1 Saund. 9. b. n. 1. Tidd's 
 
 n. 2. Com. Dig. Pleader, 2. W. 33. Prac. 4th edit. 522. Bac. Abr. Pleas, 
 
 A'in. Abr. Oyer,' D. I. 12. 
 
 (o) Ante, post, vol. 2. 483. I (?) 2 Stra. 1241. 1 Wils. 97 
 
 Saund. 10. n. 1. Com. Dig. Pleader, Barnes, 327. 
 '2. W. 33. 6 Mod. 237.
 
 OF OYER. 417 
 
 " ture it was further aj^reed," 8cc.(i/) And if it be -material ///. Of oijer. 
 for the plaintiff to shew the indenture, he may pray un enro 1- 
 ment, and so make it part of his replication. (r) If the oyer 
 be stated the *p!ea should, in strictness, be entitled of the same * 418 
 
 term as the declaration, for in contemplation of law, the deed, 
 unless denied, is in court only during the term in which it is 
 pleaded, and is afterwards in the custody of the party to whom 
 it belongs, and therefore, oi/er of such deed ouglit not, in plead- 
 ing, to be stated to have been demanded in a subsequent 
 term ;(to) and consequently not after a general ifnparlancc.(x) 
 But oyer may be craved after a special imparlance to another 
 day in the same term ■■,nj) and there are precedents where oyer 
 has been craved after the statement of an imparlance ;(2:) and 
 where the plaintiff declares in vacation, before the essoign day 
 of the following term, perhaps with analogy to the claim of 
 conusance and pleas in abatement, a plea stating the claim of 
 oyer may be entitled of a term subsecjuent to the declaration 
 with a special imparlance, or which may be most advisable, 
 may be entitled generally of the preceding term.(o) If the 
 defendant assume to set out the whole of the deed or condition 
 of a bond on oyer, the whole should be stated with all the re- 
 citals verbatim et literatim ; and if the defendc,nt do not set forth 
 the whole, or state it untruly, the plaintiff may sign judgment 
 as for want of a plea ;(6) or may, by his replication, pray that 
 *the deed be enrolled, and set it forth and demur, for by craving ^ 419 
 oyer the defendant undertakes to set out the whole ;(c') but in 
 pleading to a bond conditioned for the performance of covenants 
 in another deed distinct from that set out on oyer, though the 
 party must state the indenture truly, or subject his plea to a de- 
 
 (?t) 1 Saun<'. 317. n. 2. 3 Keb. 708. ace. 2 I.d. Raym. 970. co7j?T-a. And 
 
 Hutt. 33. I Ktb. 513. Ante. see the precedents, 1 Saimd. 3. ii89. 
 
 (t)) 2 Stra. 1'2-U. I Wils. 97. I (z/) l'.i Mod. 99. 2 Show . 310. 
 
 Saund. 9. b. n. 1. ace. Barnes, 327. (i) 1 S.iund. 3. 289. 
 
 contra. (") 2 Wils. 411, 412. 1 T. R. 278. 
 
 (vy) 5 Co. 74. b. 1 T. R. 149. 2 7 T. R. 447. n. d. 2 Saund. 2. n. 2. 
 
 Luiw. 1644. Ante, 407. Post. vol. 2. 406, 407. 
 
 (x) 2 Saund. 2. n. 2. Yin. Abr. (6) 1 Saund. 9. b. n. 1. 4 T. R. 
 
 Oyer, F. Bat. Abr. Pleas, I. 12. 2 370. Slater r. Home, Tidd's Prac, 
 
 Lev. l4-.i. Freera. 400. 1 Keb. 32. 3d edit. 506. 4lli edit. 497. 
 
 3 Keb. 480. 491. Mod. 28. see Uie (c^ Com. Di<<. Pleader, P. 1. 4 "C . 
 
 form, 3 BL Com. Appendix, Nfj. 3. Ti. 370. r. b 1 Sannd. 9 b. n 1
 
 419 OF OYER. 
 
 ///. Of ouei: niurrer, and the practice is to set forth the whole (leecl,(fi) it may 
 perhaps suffice lo sluie the substance of the deed, and those 
 covenc.nis only which he has engaged to perform, averring that 
 the indenture cont.ans no other covenants on his part,(£') or 
 perhaps even an allegation that the indenture contains no ne- 
 gative or disjunctive covenants with an averment of general 
 performimce would be sufficient ;(/) and the plaintiff might 
 pray oyer and set it forth if untruiy statcd.(.§') 
 
 When oyer is prayed of a bond and the condition, it is usual 
 in practice not to set forth the bond, but to say '' and it is read 
 " to him." Sec. and then to priy oyer oi the condition, and set it 
 forth in /uec verba, but the bond oui^-ht to be entered at large as 
 well us the condiiion, if the terms of the obligatory part be ma- 
 terial to the defence ;(//) so, if it be inuteiial to the plaintiflthat 
 the penal part of the bond be set forth, he may in his icplica- 
 tion pray that it may be emclled and set it forth. U) if no 
 use is intended to be mi de of the bond there is no need to 
 4-U pr.,y oy,-,. Qf *[i ^t iiU^ or to enter any such prayer, but it is 
 sufficient to pray oyer of the condition only,(/) for the bond and 
 condition are considered as distinct, the bond i>eing complete 
 without the condition, therefore there may be oyer of .one with- 
 out the other,(^-) and praying oyer of one does not entitle the party 
 to oyer of the other, but it must be demanded of both if mate- 
 rial to the defence. (/) If tlie dec<\, kc. be set forth on oyerj 
 the court must adjudge upon it as p.-trcel of the record, tliough 
 it were nut strictly deni.:ndable at the lime of granting it.(??i) 
 And if it thereby appear to the court that tiie defendant has 
 pleaded a filse pica, the court will give judgment for the plain- 
 tiff upon a demurrer to the p!ea :(?;) so on the other hand, the 
 defendant by craving oyer and setting it out in his plea, may 
 sometimes aid a defect in the declaration, as where the declara- 
 
 {(!) \ Sriur.d. 9. 4 East, S'ii, 345. (.') Lib. Plac. 209. pi. 220. 1 Saund. 
 
 (.-) 1 Saiiiid. .31". n. 2. «. 1) n. 1. 
 
 (/) 4 East, 340. 344. n. f. See the (A) I Samxl. 9. b. n. 1. 290. n. 2. 
 
 precedent, post, vo!. 2. 484. (/) 6 Mod. 237. 1 Saund. 9. b. n. 1, 
 
 (/>•) 1 Saund. 9. b. n. 1.3:7. 11.2. {in) 1 Saiind. 3J6, 317. 3 Salk. 
 
 (/';) Lti. Uay.n. 1135. Aul., 415, 119. Cartb. 513. 6 Mod. 27. Doug, 
 
 4iri. 4rfi. 
 
 (/) Garth. 301, 302. 1 LuUv. GSO. (n) 1 Saund. S. 317. n. 2. 3 Salk. 
 
 686. 1 Sauud. 9. b. a. 1. 119 
 
 m
 
 OF IMPARLANCES-. 420 
 
 tion was upon a certain writing, and the defendant by praying 111. Of oijer. 
 oyer, conditiones s cri/iti obligatorii Jirxdkti admitted it to be a 
 bond.(o) 
 
 ir. IMPARLA.XCES. 
 
 Tlie term imharlance, or licentia loquendi in its most general TV. Lnpavlan- 
 
 ces. 
 signification, meivns time given by the court to either party to 
 
 answer the pleading of his opponent, as either to plead, reply, 
 rejoin, &.c. and is said to be nolhing else but the continuance 
 of the cause till a further day.(//) But the *more common ^^^ 
 
 signification of the term is time to plead. (7) In making up 
 the issue joined between the parlies, and in which all the pro- 
 ceedings are necessarily stated, an entry of an imparlance be- 
 tween the declaration and plea, is frequent and sometimes ne- 
 cessary ;(r) but it is not usual in framing a plea or replication 
 separately to state an imparlance, unless some new matter has 
 arison since the former pleading, when it may be proper (s) 
 
 Imparlances are of three descriptions : 1st. A common or 
 general imparlance ; 2dly. A special imparlance, and 3dly. A 
 general special impariance.(;) The Jirst is without saving to 
 the defendant any exception against the writ, jurisdiction, &c. 
 and is always to a subsequent term.(«) In making up the is- 
 
 (o) Lil. Raj m. 1541. Cro. Ciir. 209. {q) 2 Saund. 1. n. 2. 2 Show. 
 
 (//) Bac. .\br. Pli-as. G. ScL-Com. 310. Barnes, 34G. 
 
 »i- Pleader D. and id. ibid. 1 Sell. (r) 2. Saund. I. n. 2. 5 Co. 75. 
 
 Prac. ch. 7. sect. 3. 2 Samv.i. 1. n. 2. Tidd's Pi-ac. 4tli edit. C18. 
 
 as t'> ihe nature of inipa:-l,nces in g,e- («) See the form in a plea, post, 
 
 neral. In Doct. Plac. lit. Iinp.u*- vol. 2. 403. and ia a replication, ibid. 
 
 lance, it is thus defined, " ?m/;tt?\'(/«ce 5'J.''. After issue, anv new matter 
 
 est qnando ipse defhideiis petit licen- must be ple;;dcd puis darrein conti- 
 
 tiam intefloc;neiidi, scilicet, quani le miance. See precedents, post, vol. 2. 
 
 d-J'cndant dt^sire le cour da donar a 676. 
 
 !iiti temps de (deader al suit ou action {t) 2 BI. Rep. 1095, 1096. and as 
 
 que est cammence vers lay. B'jfore to the diflcrent kinds of imparlances, 
 
 diclai-ation the continuance is by <Ues and M-hen and how granted, and what 
 
 datvs prcce partium ; after declira- may or rn;<y not be done after each, 
 
 tion and before issue joined, by ini- sec 2 Saund. 1. ii. 2. TiJd's Prac. 4th 
 
 j)arlance ; after issue joined and be- edit. 406. 
 
 fore verdict, by Vicecomcs non imsJt {n) G .Mod. 2S. 2 Saund. 2. a. See 
 
 br,t<e ; and after verdict or demurrer the forms, post, \q\. 2. 405 . 
 by curia aJvisare vult.
 
 421 OF IMiPARLA^XES. 
 
 ki'nce?"'^' ^^'^' ^^'^ ^^''^ ^^^^ ^^^'^^ ^^^ ^"^^y of such an imparlance, may 
 be necessciry in order to continue the cause in court ;(x) but 
 422 in framing *a plea, such an entry of imparlance is not necessa- 
 ry, unless where the matter of defence has arisen after the 
 decUiration.(.v) In general, pleas in bar are entitled of the term 
 of which they are pleaded, without reference to the title of the 
 declaration, and as a plea of tender may be after such an im- 
 parlance, the plea may be entitled of a term subsequent to the 
 declaration, though it is said to be more correct to entitle it of 
 the same term as the declaration. (z) After the entry of such 
 a general imparlance, the defendant may plead in bar of the 
 action, but not in abatemait or to Xhe jurisdiction of the court : 
 and therefore when, by the practice of the court, the defend- 
 ant is at liberty to plead in abatement in a term subsequent to 
 the declaration, (as occurs where the process is returnable on 
 the last return of the term, or even before, when the plaintiff 
 has neglected to deliver or file his declaration four days ex- 
 clusive before the end of the term, or has neglected to declare 
 before the essoign day of that term,) the defendant must plead 
 such plea in abatement, eitlier of the same term as the decla- 
 ration, or of the subsequent term with a special imparlance ; 
 and if it be pleaded of the latter, the plaintiff' may sign judg- 
 „ ment as for want of a plea.(a) 
 
 A sfiecial imfiarlaiicc is with a saving of all exceptions to the 
 writ, bill or count, and after this imparlance the defendant may 
 plead in abatement,(<^) but not to the jurisdiction of the court, 
 
 * 423 *unless founded on a personal privilege, as that of an attorney, 
 
 Scc.(c) In cases where the defendant is entitled to a special 
 imparlance, it is in the Common Pieas granted of 'course by the 
 prothonotary, u])on an application to him, within the first four 
 days of the term subsequent to that of the declaration, but in 
 the King's Bench it is said to be grantable only by leave of the 
 
 (x) Supra, n. r. (6) 1 Lutw. G. and Bac, Abr. Plea?, 
 
 Iv) Post, vol. '2. 405, 406. C. 4. 2 Bl. Rep. 1095. 
 
 (:) '2 Suiiiid. 1. n. -2. Run-. 59. (c) Hard. 365. Bac. Abr. Picas, 
 
 Tidd's Prac. 4lli edit. 408. C. 4. 
 
 (r/j^Suund. 1. M. 2. 4T. K. 520. 
 6 T. li. jG9. 7 T. R. 447. n. d.
 
 OF IMPARLANCES. 423 
 
 court obtained by a side bar rule, (rf) In both courts the spe- f^"- /'"/"w^- 
 
 ' ... lances. 
 
 cial imparlance must be stated in the plea, when it is enlitled 
 
 of tlie term subsequent to the declaration. (f) 
 
 The (Aird description of imparlance, usually denominated a 
 gmeral sfiecial imparlance, is Avith a saving of all exceptions 
 whatsoever,(/) and can only be obtained by an application to 
 the court, on motion, within the first four days of tl-.e next term 
 after the declaration ; and it is in the discretion of the court? 
 governed by the particular circumstances of the case, to grant 
 it or not, and tliey will not grant it in order -to enable the de- 
 fendant to plead to the jurisdiction if he has appeared by attor- 
 ney ; the prothonotary has no power to grant this description 
 of imparlance, and a plea under a grant by him would be a 
 nullity, and the piaintiff might sign judgment, or at least a res- 
 pondcas 0M.s/'(?r might be awarded. (^) This imparlance having 
 been obtained, the defendant *may not only plead in abatement 4-24 
 
 of the Avrit or count, but also personal privilege. (//) In point 
 of form this imparlance is similar to the last, with the exception 
 of the words " savivg to himself all advantages and excrjitions 
 " w/iatsoever" and sometimes in addition to those words the 
 following are added : " as well to the nvrit and declaration as to 
 " the jurisdiction of this court ;"{i) but the first is the better 
 form. 
 
 If the defendant plead to the jurisdirtion, 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 plaintiff may in general either sign judgment or apply to 
 the court to set aside the plea, or he may demur to it, or allege 
 the imparlance in his replication by way of estoppel ; but if the 
 plaintiff instead of taking any of these advantages reply to the 
 special matter of the plea, the fault is aided. (/:) 
 
 (</) 2B1. Rep. 1094. 2 Saiind. 1. (/)Seethe form, post, vol. 2. 408. 
 
 n. 2. R. E. 5 Ann. (g) 2 Sauntl. 1. n. 2. 
 
 (e) 4 T. R. 520, 521. fi T. R. 369. (/j) Id. ihid. 1 Lev. 54. 
 
 7 T. R. 44r. in which 1 Rl. Rej). 51. {i) 2 J31. Rep. 1094. 2 Sauntl. 1. n 
 
 1 Wils. 261. were overruled. See the 2. 
 
 precedents, post, vol. 2. 40G, 40", 408, {k) 2, Saund. 1. n. 2. Tidd's 
 
 2 Saund. I. n. 2. Prac. 4th edit. 408.
 
 4^5 
 
 CHAPTER VI. 
 
 Order of 
 pleading. 
 
 * 426 
 
 ' OF PLEAS TO THE JURISDICTIOK, AND IN ABATEMENT, AND 
 THE PUOCEEDINGS THEUEON. 
 
 X HE law has prescribed and settled the order of pleadinj^ 
 which the defendant is to pursue, viz. 
 
 Is^ To the jurisdiction of the court : 
 Idly. To the dimbility, ifc. of the Jierson. 
 
 ^ 1st. Of /he plaintiff; 
 
 \2dly. Of the defendant, 
 odly. To the count or declaration : 
 «^ 4thly. To the ivrit. 
 
 fist. To the form of the writ. 
 
 • f \st. Matter apparent on the face of it. 
 
 ) \ Idly. Matter dehors. 
 
 \j2dly. To the action of the writ. ^^ 
 
 ^Sthly. To the action itself in bar thereof (^c/^ 
 
 This it is siiid, is the nutural order of pleading, because each 
 subsequent plea admits that there is no foundation for the 
 former, as when the defendant pleads to the person of the 
 plaintiff, he admits the jurisdiction of the court, for it would be 
 nugatory to plead that defence in a court *which has no juris- 
 
 (n) Per Hclt, Ch. J. 2 Lfl. Rayin. Gilb. C. P. 49. Doc. Plac. in pre- 
 J70. Latch. 178. Co. Lit. 303, 301. face. Com. iYii^. Abattinent, C.
 
 OF PLEAS TO THE JURISDICTION. 426 
 
 xliclion,((!i) and when the defendant pleads to the count he ad- -^ Onler of 
 
 mits that the plamtift' is able to sue him, and the defendant to '' 
 
 be sued ; and when the defendant pleads to the form of the 
 
 writ, he admits the form of the count, and after a plea in bar to 
 
 the action, the defendant cannot plead in abatement, unless for 
 
 fliatter arising after the commencement of the suit.(c) 
 
 If this order of pleading be inverted, the defendant will be 
 precluded from pleading any matter prior in point of order.Crf) 
 And this is material, for though it is said that after a judgment 
 of res^iondeas ouster there can be no plea in abatement, be- 
 cause if it were allowed, there would be no end of such 
 pleas ;(e) yet this iBust be understood of pleas in abatement in 
 the same degree, as popish recusancy and outlawry,(/) which 
 are both to the person, for the defendant may plead to the per- 
 son of the plaintift", and if that be overruled, he might afterwards, 
 fin time, plead to the form of the writ.(,§') 
 
 */, OF PJ.EAH TO THE JUIilSDJCTIOJY. ^ .^ 
 
 * 427 
 
 Pleas of this description, though in effect they abate the /. Of pleas to 
 'writ, yet differ from pleas in abatement, principally in three •?"''"'^^f''««. 
 points, viz. that they roust be pleaded in person, and only half 
 -lefence should be made, and they should conclude si curia cog- 
 loscere x'clit and not (juod billa cassetur. (^Ii) Objections even to 
 
 (i) In infvior courts, liowever, (f/) Co. Lit. 303. Com, Dig. 
 
 .liisdoes not obtain, for if such coiu-t Abatement, C. Doct. Plac. Preface. 
 
 ^lave not jurisdiction over the subject (e) Bac. Abr. Abatement, O. — 
 
 ;nutt(;r, it will be a ground of nonsuit Giib. C. P. 186. 2 Saund. 401. 12 
 on the trial, 1 T. R. 151. And if Mod. 230. 
 
 there be a total want of jurisdiction ( /") Hetl. 126. 
 
 in any of the courts in England, the {g) Com. Dig^. Abatement,/. 3, 4- 
 
 matter may be pleaded in bar or Bac. Abr. Pleas, K. 1. 
 
 given in evidence under the general {h) Rac. Abr. Pleas, E. 2. and title 
 
 is.sue, even in an action in the snpe- Abatement, 5 Mod. 146. 1 Salk. 298. 
 
 rior courts at Westminster. 6 East, 3 Bl. Com. 301. As to pleas to the 
 
 .'iSS. 1 East, 352. Bac. Abr. Pleas, jurisdiction in general, see claim of 
 
 £. 1. And see post. conusance, ante, 403 to 410. Com. 
 
 (c) Giib. C. P. 50. Com. Dig. Dig. Abatement, D. Bac. Abr. Pleas, 
 
 \batement, C. I. 23, 2i. E. 8t Courts, D. Sc Giib. C, P. 187 lu 
 
 197. 
 
 Vol. I. [ 59 ]
 
 427 OF PLEAS TO THE JURISDICTION. 
 
 J. Of picas to the jurisdiction of the superior courts jnay in some cases be 
 ■*''' '"" ' ■ taken under the general issue, but in general they must be 
 pleaded. In all transitory actions, and in local actions arising 
 in England or Wales, if there be no plea to the jurisdiction, the 
 courts of Westminster may in general hold plea thereof ;(«) 
 though it has been doubted whether when an assault was com- 
 mitted in Fy-ance or elsewhere out of the king's dominions, an 
 action can be supported even in the courts at Westminster, (J) 
 and where a trespass has been committed to lands in a foreign 
 country, no action can be sustained in the English courts, un- 
 less there be no court Avhich could afford redress in the coun- 
 try where the cause of action arose. (^) And where a court 
 has no jurisdiction at common law, or it has been taken away 
 by act of parliament, such want of jurisdiction may be pleaded 
 *^ 428 in bar, or be given in evidence under the general *issue, and is 
 
 not properly the subject of a plea in abatement. (/) And it has 
 been recently decided that where a public statute for erecting a 
 court of inferior jurisdiction enacts, that no action for any debi 
 not amounting to forty shillings. Sec. and recoverable by thaL 
 act, shall be bi'ought against any person 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. (?«) In other cases the statutes giving a pecu- 
 liar jurisdiction require that it shall be pleaded in bar, in case 
 the parties claiming the privilege shall be sued elsewhere ; and 
 others direct that a suggestion shall be entered on the roll. 
 The methods pointed out by the respective statutes must be 
 strictly pursued. (?0 
 
 In most of the inferior courts the want of jurisdiction is fatal 
 to the suit without any pica stating the objection, for the cause 
 of action must be alleged to have arisen within the jurisdiction, 
 
 (/) Andr. 108. 1 Woodd. 193. Bac. {>n) 1 East, SiVi. 
 
 Abi-. Pleas, E. 1. (?() Per Ld. Kenyon, I East, 354. 
 
 (y) 1 Cowp, 176. but see ante, 269. See the observation on several of tlie 
 
 ji. (i). statutes, and tlie mode of proceedings 
 
 (^■) 4. T. R. 503. Anic, 269. n. (j). in Tidd's Prac. 3d edit. 872 to S7~ 
 
 6 East, 5 S3. 599. 4th edit. 856 to 860. 
 
 (/) 6 East, 583. 1 East, 352. 4 T. 
 'R. 508. 
 
 % 
 
 <*
 
 OF PLEAS TO THE JURISDICTION. 42S 
 
 ^)^ a writ of false judgment may be supported ; and if the fact 7. Of plea/) to 
 
 . ■ r^ 1 , jurisikction. 
 
 be so alleged but not proved, the plumtiff ought to be non- 
 suited on the general issue ; and if the inferior court admit 
 the jurisdiction, a bill of exceptions may be tendered, or a pro- 
 hibition issued. (o) In these cases, however, *the defend- ^ 429 
 ant may plead to the jurisdiction, which seems to be the safer 
 course, (/i) 
 
 We have already seen that the defendant can only plead to 
 the jurisdiction where the grant to the inferior court \ii& habere 
 cognitionem /ilacitorum with exclusive words et non alibi. In 
 this case the plea cannot be in bar. At common law there 
 was a distinction between a foreign plea and a plea to the ju- 
 risdiction, A foreign plea was, where the action was carried 
 out of the county or place where the venue was laid.(7) An- 
 cient demesne and all pleas of privilege are pleas to the juris- 
 diction, and not foreign pleas. (r) It was always necessary be- 
 fore the statute of jlnne^ to verify a foreign plea by affidavit, 
 but not a plea to the jurisdiction. (s) 
 
 Pleas to the jurisdiction, when the objection cannot be other- 
 wise taken, are either in local or transitory actions. The de- 
 fendant may in local actions plead to the jurisdiction when the 
 cause of action accrued in a jurisdiction where breve domini re- 
 rris 7ion currit.(t) Therefore he may plead that the lands are 
 ancient demesne, holden of the king's manor,(«) or that the 
 cause of action *arose in JVales ;(w) but since the Wels/i judi- ■5jf 430 
 •aturc act, this plea has not been so frequent.(:r) So it may 
 
 (0) Gilb. C. P. I8S, 189. Bac. Abr. CO Bac. Abr. Courts, D. r,. Cilh. 
 
 Picas, E. 1. Courts, D. 4. 1 Saund. C. P. 191. 1 Wils. 20G. 3 East, 1-23. 
 
 'JS. n. 1. (h) Com. Dig. Abatement, D. 1. 
 
 (p) Bac. Abr. Courts, D. 4. See L4. Kajm. 1418. 1 Salk. 56. Sec 
 
 'he precedents of plea and replon, t/ie precedents in Ilerne, 351. Rast, 
 
 I Wentw. 51. 60. 60. rs. k I AVeutv.-. Ent. 101. Tliorap. Eiit. 2. ]\Io(I. 
 
 iadex. Lit. Ent. 475. Ent 249. S Inst. C. S, 9. Mans. 103. 
 
 C«7) 1 Saund. 9S.n. 1. Carth. 402. 1 \Yentw. 51. and sie other foring 
 
 Vin. Abr. tit. Foreign Pleas. See t!ie and reiilications. 1 Vv'entw. Index, 
 
 precedent, Lil. Ent. 475. (-.; ) Com. Dig. Abatement, D. 2. 
 
 ()•) Vin. Abr. lil. Foreign Plea', A. 1 Wils. 193. Doug;. 213. See th- 
 
 11. 5 Mod. 335. precedents, IWentw. 45. 49. CS. I 
 
 (s) 1 Saund. 98. n. 1. Carth. 402. Wils. 193. 
 
 *'in. .\br. Forci-^n Ple.-is. 5 Mo^l. ~ v'. (.r) 13 Geo. III. e. 51, t New 
 
 !?;;>. 267. fiT. H. 5n'V 
 
 ^
 
 430 
 
 OF PLEAS TO THE JURISDICTION. 
 
 7. Of pleas to bc pleaded that the cause of action arose in a county palatine,(9) 
 
 finisdistion. ., . .,n • t j , \ ' .u 
 
 or m the cinque ports,(z) or in I.o7idon,{a) or any other ex-. 
 
 elusive jurisdiction ;(/)) but Ehj is not an exempt jurisdiction 
 though the bishop may demand conusance.(c) It has been 
 held that it may be pleaded in a local action that the lands are 
 out of the realm ;(f/) but as this might be pleaded in bar, or be 
 given in evidence under the general issue, it is unnecessary 
 to plead such matter in abatement. (e) In ejechnait the real 
 defendant being obliged on appearing to enter into the consent 
 rule and to plead the general issue, can only plead to the jvuis- 
 diction with leave of the couit.(/) 
 
 In all transitonj actions the'courts at Westminster have juris- 
 diction unless taken away by particular acts of parliament,(,§-) 
 and with the exception in favour of the universities of Oxford 
 and Cambridge,(^/i) unless the plaintiff by his declaration shews 
 *^ 431 that the action accrued in an exclusive *jurisdiction, no objec- 
 tion to that of the superior courts can be taken ;(?) and if the 
 declaration disclose the fact, still the defendant cannot demuv 
 or move in arrest of judgment, but must plead to the jurisdic- 
 tion ',{j) and it is said that there are no pleas to the jurisdiction 
 of the courts at Westminster in transitory actions, luiless the 
 plaintiff by bis declaration admits that the cause of action ac- 
 crued in a county palatine ; it is however presumed, that 
 these cases are only put as instances, and that if it appeared 
 on the face of the declaration that the cause of action arose in 
 
 Ci') Com. Dig. Abatement, D. 2. 
 See the precedaits. East. Eiit. 419. 
 Hcrne, 7. 3 Inst. CI. 14. 1 Wentw. 
 49. 
 
 (r) Com. Dig. Abatement, D. .3. 
 4 Inst. 2'24. Jenk. 190. Keilw. 88. 
 See the precedent. Bi-o, Red. 475. 
 ;in(l 1 Wentw. Index. 
 
 (a) 3 Leon. 148. 
 
 (6) Brn. Abr. Conusance, 52. 1 
 Bl. Kep. 197. See the precedents. 1 
 Wentw. Index. 
 
 (r) Carth. lOy. f?alk. 183. 3 E.nst, 
 12!^. 13S. 
 
 (</) Show. 10!. 1 Salk. SO. Com. 
 lYia. Abatement, ]). 3. 
 
 ((?) 6 East, 15 83. 4 T. R. 503.— 
 xinte, 42S. 
 
 (/) BI. Rep. 197. 3 Wils. 51. 2 
 Sti-a. 1120. 8T. R. 474. 
 
 (_§) Bac. Abr. Courts, D. 3. See 
 the difrbrent statutes referred to» 
 ante, 428. n. (n). 
 
 (A) Bafe'Abr. Courts, D. 3. Gilb. 
 C. P. 191. Woodd. Inst. 520. Yin. 
 Abr. tit. University, K. 
 
 (t) 4 Inst. 213. I Sid. 103. Gilb. 
 C. P. 191. Bac. Abr. Courts, D. 3. 
 
 (./■) Cartli. 11. 354. Bac. Abr. 
 Cloiirt, I). 3. Cilb. C. P. 191. 5 
 Mod. 144.
 
 OF PLEAS TO THE JURISDICTION. 
 
 431 
 
 any other exempt jurisdiction, a plea to the jurisdiction / Of pleas t» 
 might be pleaded. (A) Some pleas in abatement arising from J"'""'*^'*""- 
 firivilege of fierson may be classed under pleas to the jurisdic- 
 tion, in respect of their affecting the jurisdiction of the court, 
 und concluding whether the court ought to have further conu- 
 sance of the suit ;(/) as where an attorney or offic^ of a par- 
 ticular court, a tinner, or sciiolar of the universities, is sued 
 out of the proper court. But these will be inquired into when 
 we consider pleas in abatement. 
 
 Where a person is wrongfully sued in an inferior court, he 
 must tender his plea to the jurisdiction /« jirofiria fiersona se- 
 dente curia, and make oath of the truth thereof ; and if the in- 
 ferior *court will not accept his plea, he may have a prohibi- ^ 4,32 
 iion from one of the common law courts at Westmitister, or in 
 vacation from the court of chancery. (w) In the auficrior 
 courts, a plea to the jurisdiction must be pleaded within four 
 days after declaralion,(?z) and generally before imparlance ;(o) 
 it should be entitled of the same term as the declaration, (/i) 
 must be pleaded in person and not by attorney, because the 
 latter would admit the jurisdiction of the court,(9) and for the 
 same reason full defence ought not to be made, but only half 
 defence, though the words " ivhen" Sec. will suffice. (r) After 
 stating the appearance and defence, the plea may proceed at 
 once to shew the defect of jurisdiction without any prayer, si 
 curia cognosccre vcUt, Scc.(&) 
 
 In all pleas to the jurisdiction of the superior courts, it must 
 be shewn that there is another court in which effectual justice 
 
 (A-) See I ^\"\U. 103. See tlie pre- 
 cedents oil U'ausitory actions, 1 Wils. 
 193. 1 Weiitw. 45. 49. 68. 
 
 (?) See tlie precedents. 8 T. 11G31. 
 Com. Dig. .\b;itement, D. 4. Bac. 
 Ab:'. tit. Abatcracut, C tit. Pleas, E. 
 '2. Lutw. 45. 039. 2-2 Yi:i. 9. 3 T. 
 R. ISt). 5 Mod. 140. Gilb. C. P. 
 208, 209. cited 5 Mod. 335. 
 
 (w) I Saund. 98. n. 1. 6 Mod. 140. 
 Bac. \\>T. Pli as, E. lit. Coiirlii, I). 4. 
 tit. Pleas, E. 1. .\nte, 4'JH. 
 
 (n) 8 T. U. 474. rium. Di<,>-. 
 Abatement, D. 9. 
 
 (0) Ante, 422. Com. Dig. Abate- 
 ment, D. y, Gilb. C. P. ISr. Bac. 
 Abr. Pleas, E. 2. 
 
 {p) Ante, 422. 
 
 (7) 2 Saund. 209. e. Gilb. C. P. 
 187. Bac. Abr. tit. Abatement, A. 
 lit. Pleas, &c. 2. Gilb. CI P. 187.— 
 Bac. Abr. Abatement, A. 8 T. R 
 0.51. 
 
 ()•) Ante, 41.3. 2 Saund. 209. c. 
 
 (•s) See the forms, Rast. Ent. 101. 
 419. Heme, 351. 1 Wils. 19.3. and 
 ante, 430. Bat see the precedent. 
 ST n. 031.
 
 I 
 
 43:;2 OF PLEAS TO THE JURISDTCTIOX. 
 
 /. Of films la may be administered, for if there be no other mode of trial,' 
 
 jurisdiction. ,, • , . ' • • i- • / ^. 
 
 &C. that alone would give the superior courts jurisdiction. (^) 
 
 In transitory actions it must be averred in the plea either that 
 the defendant dwells in the county palatine, or that he has suffi- 
 cient goods and chattels there by which he may be attached, 
 
 * 433 *otherwise the plea cannot be allowed, lest a failure of justice 
 
 should ensue.(«) But in^a plea to the jurisdiction of an infe- 
 rior court, it is sufficient to allege that the cause of action ac- 
 crued out of its jurisdiction, without shewing the jurisdiction 
 to which the plaintiff should have resorted. (v) These pleas 
 should conclude with a prayer, " si curia cognoscere velii"''jQr 
 " resfio?idere non debet " and not " quod billa -vel breve cd'Sse- 
 " tur ;'\iv) the forftier is the most usual conclusion when the 
 subject matter of the plea relates to the cause of action, and-^|B 
 the res/iondere non debet seems proper where the objection tf> "v 
 the jurisdiction is a personal privilege .(jt) If the plea were t( 
 conclude in bar to the action, the jurisdiction would thereby in 
 general be admitted. (?/) 
 
 In support of a plea to the jurisdiction there must in gene- m 
 ral be an affidavit of the truth of its contents.(2) And where 
 ancient demesne is pleaded, the affidavit must state that the 
 lands are holden of a manor which is ancient demesne, that 
 there is a court of ancient demesne regularly holden, and that 
 the lessor of the plaintiff has a freehold interest.(a) 
 
 To the plea of ancient demesne the plaintiff may reply that the 
 
 * A^ A, \^^A is pleadable at common *law, and traverse that the manor n 
 
 is ancient demesne, or he may reply without a traverse. ^6) The 
 replication to pleas to the 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 jurisdiction, because, 
 
 (0 6 East, 598. fiOO. Cowp. 172. 101.419. Heme, 351. 1 Wils. lO.S. 
 
 Cartli. C-'55. 3 Leon. 148. 4. T. R. Lutw. 45. 639. 5J Rich. C. P. lf> 
 
 .')0.}. 4 Inst 213. Bac. Abr. Abate- Lil. Ent. 9. 
 
 mcnt, A. tit. Courts, D. 3. (.r) Id. ibid. 
 
 (;/) Curtli. 355. See the prece- (j-) Vin. Abr. Coiu-ts, .Turisuictint:. 
 
 dents, ante, 430. N. a. 
 
 (r) G East, 600, 601. and see the (r) 4 Ann. c. 16. s. 11. Bac. Abr 
 
 precedents, I AVentw. 51. 60, 61. 78. Courts, D. 4. Post. 
 
 (w) Rac. Abr. Pleas, E. ± Latcli. («) 2 Burr. 104G. 
 
 178. 5 Mod. 14G. Bro. Juiisdiction, (i) Com. Dig. Abuteraent, D. 1 • 
 •Vl. 17- - Saund. 209. Kast. Ent.
 
 OF PLEAS IN ABATEMENT. 434 
 
 &c.(c) and concludes to the country, if the replication merely /. Of pleas .♦» 
 deny the subject matter of the plca.(rf) Where the plaintiff i"™'^'c/'«"- 
 demurs to the plea, he states that he is not bound to answer the 
 plea, and that the same is not sufficient to prevent the court 
 from having conusance of the action ;(f) the language of the 
 joinder in demurrer corresponds with that of the demurrer.(y") 
 The judgment in these cases is, that the writ shall abate, or 
 resjioudmt ouster. {g) 
 
 II. OF PLEAS Ijy ABATEMEJVT. 
 
 Whenever the subject matter of the plea or defence is that II- Ofpiemiu 
 
 ubutement. 
 the plamtiff cannot maintain any action at amy time, m respect 
 
 of the supposed cause of action, it may, and usually should, be 
 pleaded in dar ; but matter which merely defeats the present 
 proceeding, and dees not shev/ that the plaintiff is for ever con- 
 cluded should in general be pleaded in abatement. {a) There are, 
 however, some matters which may be pleaded in abatement or 
 ;)ar ; as in replevin for goods, the defendant may plead ^'proper- •* 435 
 
 ty in himself or in a stranger, either in abatement or in bar.(d) 
 So outlawry for felony, alien enemy, and attainder, where the 
 cause of action is thereby forfeited, may be pleaded in abate- 
 ment or in bar ;(c) and when the defendant has omitted to 
 plead in abatement in due time, he must then plead in bar ;(c/) 
 but where the plaintiff's disability merely suspends the right of 
 action, and does not destroy it, it can only be pleaded in abate- 
 ment, and the plea should conclude si resfionderi debeat (jiions- 
 (jue, Sec. and when the disability is removed the suit will pro- 
 
 (c) Tliomp. Ent. 2. Rast. Ent. (a) 4 T. R. 22". Bae. Abr. Abatc- 
 
 101. Clift. Ent. 17. ment, N. Com. Dig. Abatement, B. 
 
 ((/) Id. ibid. (/*)1 Salk. 5. Post, vol. 2. 510. ii. ( /'). 
 
 (e) Rast. Ent 419. 1 Wils. 194. (c) Bac. Abr. Abatement, N. 
 
 (/) Id. ibid. Com. Dig. Abatement, K. Co. Lit. 
 
 (^■) Viu. Abr. Court Jurisdiction, 128. b. 129. b. Ld. Raym. 1249. Bn' 
 
 N". a. Com. Dig. Abatement, I. 14. V. >! 252. Gilb. C. P. 200. 
 
 {(l) Bac. Abr. Pleas, C. 3.
 
 435 01' PLEAS IN ABATEMENT. 
 
 //. Of picas ceed/e) Pleas in abatement we have already seen are divided 
 «« abaieimnt. . . - 
 
 into those relatinc: 
 
 \st. To the clisabilitij of the person. 
 Int. Of the fUaintiff ; 
 2dly. Of the defendant, 
 
 2dly. To the count or dec/aratio?i. 
 
 ^dlij. To the writ. 
 
 1st. To the form of the nvrit . 
 
 Int. jMatter ajijiareiit un ihc face of it. 
 2dlij. Matter dehors. 
 2dly. To the action of i/ic nvrit. 
 
 1. lUlatingto Pleas to the disability of the /dainti^ shewing that he is inca 
 pable of commencing or continuing his suit, either deny his 
 existence, as that he or one of several plaintiffs at the time of 
 
 * 436 the commencement of the suit was afctitious person, (y) *or 
 dead ;(ff) and where a sole plaintiff dies pending the suit, such 
 death may be pleaded in abatement ;(A) but in the case of se- 
 veral plaintiffs or defendants, the death of one does not abate 
 the suit, if the cause of aclion survive, for or against the sur- 
 vivors :(/) so the defendant may plead in abatement, that the 
 plaintiff is an alien enemy,(y) attainted of treason or felony,(/t) 
 outlawed upon mesne or final process, (/) under a premunirej(m) 
 
 (e) Lrl. Raym. 105G. 12 Mod. 400. Bac. Abr. Abatement, B. 3. 1 Doct, 
 
 4 East, 504. Plac. 8. See the forms, 3 Inst. CI. IG- 
 
 (/) Com. Dig. Abatement, E. 10. 2 Stra. 1081. 2 Raym. 1243. Lutw- 
 
 Eac. Abr. Abatement, F. 1 Wils. 34. 1 Wentw. Inde.x, 8. Gilb. C. P. 
 
 302. Gilb. C. P. 248. See the prece- 295. See the precedents in h?cv,\)0&i- 
 
 dents, Ast. Eut. 10. 3 Inst. CI. vol. 2. 425, 426. 
 
 St). 1 Wentw. 50. and Index, 11. {k) Carth. 137, 138. Com. Dig. 
 
 (^•) Ast. Ent. 8. 3 Inst. CI. 75. kc. Abatement, E. 3. See the form, 1. 
 
 1 Wentw. Ind. 11. Bac. Abr. Abate- Wentw. 7. 
 
 ment, L. Com. Dig. Abatement, E. (0 Gilb. C. P. 106, 197. C. D. 
 
 17. Abatement, E. 2. Bac. Abr. Abate. 
 
 (/() Bac. Abr. Abatement, F. Cora, ment, B. 1. See the form, Lutw. 6. 
 
 Dig. Abatement, H. 32, 33. 1529. 3 Inst. CI. 23. 1 Wentw. .Ind. 
 
 (j) Id. ibid. 8 & 9 W. III. c. 11. s. 7. 1 East, 634. 
 7. 2Saund. 72. i. Bac. Abr. Abate- (?n) Co. Lit. 129. b. C. D. Abate- 
 ment, F. ment, E. 6. 
 
 (.)') Com. Dig. Abatement, E. 4. 
 
 i
 
 OF PLEAS IN ABATEMENT. 435 
 
 er excoi"nmunicated,(n) or that the plaintiff (unless he sue \vith / Kehuivg to 
 
 others as executor) is an infant and has declared hy attor- "/"^' '•''"• 
 
 ney ;(o) and this is the proper mode of taking advantage of the 
 
 objection in the case of plaintiffs ;(/?) but bankruptcy of the 
 
 plaintiff pending the suit does not abate it.('/) When d.feme 
 
 covert has no interest whatever in the subject matter of the 
 
 action, consequently ought not to be made a party, and she sues 
 
 with or v/ithout her husband, the *plaintiff will be nonsuited ^ 437 
 
 on the general issue ;(r) but where the feme was interested 
 
 before or during her coverture in the subject matter of the 
 
 action, and might join with the husband but sues alone, her 
 
 coverture can only be pleaded in abatement, and cannot be 
 
 given in evidence under the general issue, or pleaded in bar ; 
 
 at least this rule obtains in actions for torts :(«) and if the plaintiff 
 
 take husband after suing out the writ and before the declaration, 
 
 the defendant cannot give the coverture in evidence under the 
 
 general issue, but must plead it in abatement,(^) as matter 
 
 arising before plea or pending the suit, or puis darrein ccn*- 
 
 tv, nance if after issue joined. (Ty) 
 
 Pleas in abatement to the person of the defendant are cover* 
 ture, and infancy when the parol shall demur. Coverture at 
 the time when the supposed contract was entered into may be 
 pleaded in bar or given in evidence under the general issue 
 non-assumpsit or non est faclum,{n^ but where the objectina 
 does not go to the liability of the feme, but is merely that the 
 husband ought to have been sued jointly with her, as where 
 since entering into the contract oi' committing the toj't she has 
 married, she must when sued alone, plead her coverture in 
 
 («) Lutw. 1". Sinst. Cl. 18. Cro. Salk. 114. I H. EI. lOS. Cro. Jac. 
 
 lac. 8-2. Hac. Abr. .Vbalement, R. ■2. 644. 2 Bl. Rep. I'-ViG. 
 
 1 Wcntw. Index. Gilb. C. P. 202. (.v) 3 T. R. C31. G T. R. 265. 
 (o) I5r. R. 475. 4CC. 3 Inst. Cl. 19. Com. Dig-. Abatement, E. 6. IL 42. 
 
 55. Clift, 11. 1 Mod. Ent. 2'J. 1 1 Leon. IG9. St-c the form, post, 
 
 Wentw. 58. Inde.x, 10. see the form, vol. 2. 414. 1 Wentw. 4". and Indtx, 
 
 2 Sam;;!. 209. a. 9. 
 
 (/>) 2 Saund. 212. a. n. 5. (/) fi T. R. 265. 
 
 (7) 2 Wiis. 37\. 1 T. R. 463. 3 (v) 4 East, 502. 
 T. R. 43- l?i) 12 Mod. 101. 8T. R. 5l5 
 
 (/•) Ante, 22. 4T, R. 361. 1 See tlie precedents ia bar, post, voi 
 
 2. 425. 
 
 Vol. I. r 40 1
 
 438* OF PLEAS IN ABATEMENT. 
 
 1 liehitin^to iibixtetuciit, iiutl aver that her husband is living; -.{w) and if *the 
 the peisou. dcrciulant marry after the commencement of the suit, such 
 coverture cannot be pleaded even in abatement. (^) Infuncxj 
 may be pleaded in abatement in an action upon a specialty, 
 when the defendant is sued as heir on the obligation of his 
 ancestor, in which case the parol shall demur, or proceedings 
 be stayed till he comes of age ;(;/) and this privilege does not 
 extend to an infant devisee. (r) To the plea of coverture the 
 plaintiff cannot reply tliat the defendant lives apart from her 
 husband, and has a separate maintenance secured to her by 
 deed ; for whilst the relation of marriage subsists, and she 
 and her husband are living in this kingdom, she cannot be 
 sued alune ;(«) but where the husband is civiliter mortuus, or 
 has been transported, or is an alien residing abroad, the facts 
 may be replied. (6) 
 JT. Jieh'Ainc^ Pleas in abatement to the count could only be pleaded in ac- 
 ^^?/ie count, jj^j^g j^y. Qj-ig-jnal writ. The first act of the parties after ap- 
 pearance and admission of the jurisdiction of the court over 
 the subject matter of the cause, and of the ability of the plain- 
 tiff to sue, and the defendant to be sued, is the declaration or 
 count, after which formerly the defendant might demand oijer 
 of the writ, and then the same being set forth on the roll, if 
 there w ere any vavii.nce between the count and the writ, or be- 
 tween the writ and a record, specialty. Sic. mentioned in the 
 count, the defendant miL^ht plead such variance in abatement 
 ■^ A'lQ '^'' demur, move in arrest *of judgment or sustain error. (c) 
 But as a variance between the writ and count could in no case 
 be pleaded without craving oyer of the writ,((i) and the defend- 
 ant cannot now have such oyer, such variance or defect is no 
 
 (tf) .3 T. R. 627. Rac. Abr. Abate- 4S.5. 4T. R. 77. See the form, post, 
 
 meiit, G. C. D. Abatement, F. 2. vol. 2. 472. Rast. 360. 362. 379. Bro. 
 
 Ciiilh. 124. Cro. Eliz. .554. See die Red. )9.i. 4 East, 485. Lil. Eat. 3, 
 
 form, post, vol. 2. 415. 3 Inst. CI. (r) 4 East, 485. 
 
 71. 1 Werit«-. Imlex, 1.3. The form («) S Term Rep. 545. 
 
 in I Lutw. 23. is burl, see post, vol. {!>) Selwyn's N. P. 236 to 241, 
 
 '-^•415. (t) 2 Wiis. .394. Com. Dig. Abate- 
 
 {x) Eac. Abr. Abatement, G. 2 ment, G. 8. 3 Inst. CI. 62. Reg. PI- 
 
 Stra. 8! 4. et rvVfe Loft. 27. 2 Ld. 277,278. ,*, 
 
 .U.iym. 15-25. (,/) 2 Wils"! 394, 305. 
 
 iy) Com. Dig. tit. Infant, D. 4 East,
 
 OF PLEAS IN ABATEMENT. 439 
 
 longer pleadable in abatement, and if it be, the plaintiff may n. ^eUuing 
 siu,n judgment or move the court to set it aside,(e) nor will the % '^'^ comu, 
 court set aside the proceeding in respect of the vari- 
 ance.(/) 
 
 Pleas in abatanetit to the writ or bill are so termed rather HI. Jiehuing 
 from their effect than from their being strictly such pleas, for '° ''"^ """'"• 
 as oyer of the writ can no longer be craved, no objection can 
 be taken to matter which is merely contained in the ivrit ;(ff) 
 but if the mistake in the writ be carried also into the declara- 
 tion, or rather if the declaration which is presumed to corres- 
 pond with the writ or bill be incorrect in respect of some ex- 
 trinsic matter, it is then open to the defendant to plead in 
 abatement to the writ or bill,(/!) and there is no plea to the 
 declaration alone but in bar.(f) Pleas in abatement of the writ 
 or bill are to the for?n or to the action thereof :(7') Those of 
 the firsl description were formerly either matter apparent on 
 the fare of the writ or bill,(A-) or matter dehors.{l) Formerly 
 a defect in the- form of the writ apparent on the face of it, as 
 repugnancy, variance from the record, specialty, &c. want of 
 sufHcient *time, between the teste and return,(X) or in actions ^ 440 
 
 by original, the omission or mistake in the wiit of the defend- 
 ant's addition, (/) either of estate, degree, mystery, or place of 
 abode,(/H) were pleadable in abatement ; but as oyer of the 
 writ can no longer be had, an omission of the defendant's ad- 
 dition, 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. v,n) 
 
 (f ) 1 R. & P. 646, 647. 3 B. k P. (Jc) Com. Dig. Abatement, H. 1. 
 31'5. 7 East, 583. (/) Com. Dig. AljHlonient, H. 17. 
 
 (/) '2 \\ iis. 3<i3. 3 East, 167. {k) 1 Liitw. '25. 3 lust. CI. 49. 54. 
 
 Ante, 249. 66. ^c 
 
 (^) 3 H. k P. 399. 1 B.i* P. 645. (/) 1 Hen. V. C. 5. 3 lust. CI. 92. 
 
 647, 648. Lil. Ent. 5. 2 I{ich. C. P. 5. 8. 1 
 
 (/() lli. kP. 648. 10 Mod. 210, Stra. 556. Ld. llayra. 1541. 2 Inst. 
 
 211. 668. 
 
 (0 10 Mod. 210. 2 Saiind. 209. d. (/n) 3 B. & P. 395. 
 
 (./) Com. Dig. Atetement, H. 1. («) 1 Saund. 318. n. 3. 3 B. & P. 
 
 17. 395. 7 East, 3S3.
 
 440 OF PLEAS IN ABATEMENT. 
 
 ///. lielaiins Pleas in abatement to the form of tl>e writ are therefore 
 
 to the ivrlt. . . , „ . . i • i- 
 
 now principally tor matter de/!ors,{Q) existing- at the time ot 
 suing out the writ or arising afterwards,(/0 such as misnomer 
 of the pidintiff or defendant in christian or surname. It wat 
 once doubted if a mistake of the filaintiff's christian or sur- 
 name were not ground of nonsuit, but it is now settled that 
 the mistake must be pleaded in abatement even in the case of 
 a corporation, (y) and this objection cannot be pleaded unless 
 the misnomer also appear in the declaration, (r) for the plaintiff 
 may declare in his right name though the name be mistaken 
 in the process. Misnomer of the d<fcndayit must also be 
 ^ 441 pleaded in abatement ;(.0 and if the *christian names be re- 
 
 versed in order, as 1-iichard John, instead of John Richard, that 
 may be pleaded, (/) and a person sued as an attorney may plead 
 that he is not an attorney. (t) But nusnomer of another defend- 
 ant cannot be pleaded by his companion ^(u) and if the declara- 
 tion be against the defendant in his right name, though variant 
 from thai in the writ, he cannot plead in abatement. (7i>) The 
 consequences of a misnomer of the defendant have already been 
 stated •,{x) in addition to which it may be collected that the 
 proper course for the defendant to pursue in order to take ad- 
 vantage of a misnomer in the process, is to move before ap- 
 pearance to set aside the mesne process for irregularity. (?/) 
 
 Other pleas to xXxeform of the ivrit are, that the plaintiffs or 
 defendants suing or being sued as husband and wile are not 
 married, (r) or that one of the plaintiffs or defendants was ficti- 
 
 i 
 
 (o) Cora. Dig. Abatement, H. 17. 4lS. LuUv. 10. Lil. Ent. 6. 2 llicli. 
 
 &c. Gi!b. C. P. 51. Prac 4. 
 
 (/)) Com. Dig. Abatement, II. 17. {t) 5 T, R. l'J5. 
 
 3-2. {v) 1 Wentw. 6. Prac. Jleg. 8. 
 
 ((?) 1 B. & P. 40. 3 Anstr. 935. {n) Lutw. S6. 
 
 Cora. Dig. Abatement, E. 18, 19, 20, {w) 1 B. k P. 645. 3 East, 107. 
 
 21. 3 Yin. 312. Bac. Abr. Abate- Ante, 250. 
 
 ment, D. See the precedents, post, (,/-) 'ri(li.rs Prac. 3d edit. 582. n. i, 
 
 vol. 2. 418. Lil. Ent. 4. I East, 542. k 4th ei'.it. 573. n. k. 
 
 (r) 1 B. & P. 645. ( v) 1 B. k P. 647. Sed 411. 3 East, 
 
 («) Bac. Abr. Abatement, 9. — 167. 
 
 Misnomer, F. Com. Dig. Abate- (r) Com. Dig. Abatement, E. 6. S 
 
 ment, F. 17, IS. and 2 Bl. Hep. 120. Inst. CI. 69. 1 Wculw. Imiex, 12. 
 See the forms, post, vol. 2. 4l6, 417,
 
 OF PLEAS IN ABATEMENT. 
 
 441 
 
 tious or dead at the time of the issuing the \vrit,(a) or any other J^^ 
 plea for want of proper parties,(6) as that there are other joint 
 contractors, Scc.(c) other executors, (c/) or administrators, (t) or 
 other persons,(/) *not joined, who ought to be made parties 
 to the suit. The plea in abatement of non-joinder must aver 
 that the parly omitted is still living.(^'-) We have already seen, 
 when considering the parlies to the action, that in actions on 
 contracts the non-joinder of a party who ought to be made co- 
 pluhitiff, will in general be the groundof nonsuit, and need not, 
 though it may be, pleaded in abatement •,{h) but that in the case 
 of executors or assignees of a bankrupt and others suing jure 
 rcfiresi'7irationis, the omission can only be pleaded in abate- 
 ment,(0 and that the non-joinder of a person who ought to be 
 made a co-plaintiff in an action hi form ex delicto, us case, tro- 
 ver, trespass, Ecc. can only be pleaded in abatement ;(y) and 
 that with regard to defendants, tlie omission of a joint con- 
 tractor must be pleaded in abatement. (A:) and that in actions for 
 torts, no advantage can in general be taken of the non-joinder 
 of a defendant. (/) 
 
 Pleas in abatement to the actio7i of the writ, are that the ac- 
 tion is misconceived, as it is in case when it ought to have 
 been in trespass. (w) or that it was prematurely brought :(«) 
 but as these matters are the ground of demurrer or nonsuit, it 
 is now very unusual to plead them in abatement -jio) and in the 
 King's Bench by bill the writ may be issued before the cause of 
 action accrued.*./?) It may also be pleaded that there *is ano- 
 
 Relutint 
 e -writ. 
 
 * 442 
 
 * 443 
 
 (h) 1 Doct. Plac. 12. Bac. Abr. 
 Abatement, L. 
 
 (6) Ante, c. I. Parties to the ac- 
 tion, per toiiiin. 
 
 (c) iSee the preccdtiUs, post, vol. 2. 
 415, 416. 
 
 («/■) Com. Dig. Abatement, E. 8. F. 
 4. fecc. 3 Inst. CI. 51. Uast. 325. a. 1 
 Wcntw. 9. Reg. 140. 
 
 (e) 3 Inst. CI. 53. Rast. 324. 
 
 (/) 3 Inst CI. 53. 119. 1 Lutw. 
 69ti. I East, 634. 1 Weiitw. 10, 11. 
 Index, 12. 
 
 (^') I Sann(1.291. a. n. 2. 
 
 (A) Ante, 7. 
 
 2 Saund. 291. g. 
 
 (0 Ante, 7. 13. 
 3 B. k P. 405. 
 
 ( ;■) Ante, 53. 
 
 (A) Ante, 29. 
 
 (/) Ante, 75, 76. 3 East, C2. Sed 
 vid. 2 New Rep. 305. 
 
 (?«) 3 Inst. CI. 120. he. Com. Dig- 
 Abatement, G. 5. 
 
 («) Com. Dig. Abatement, G. C. 
 tit. Action, E. Lutw. 8. 13. 3 Inst. 
 CI. 56. Fortes. 334. Cliit. Ent. 10. 
 18, 19. Sed qu. Ld. Raym. 1249. 
 
 (o) See tbe instances of misjoinder, 
 2 Saund. 210. a. 
 
 (/») 4 East, 75. Ante.
 
 443 OF PLEAS IN ABATEMENT. 
 
 /// Jielatin^ ther action depending for the same cause/ 7) in the same or in 
 
 to the -wni. . ' 
 
 any otliei' superior court at Westminnter^ but the pendency of 
 
 another suil in the sherift''s or other inferior court, it is said, 
 
 cannot be pleaded. (r) In general the pendency of a fornier 
 
 action musi be pleaded in abatement, 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 first sued is entitled to the 
 
 penally (6') In tlie latter ca^e the plea, when the two suits were 
 
 commenced in tlie s.ime term, should shew the precise day or 
 
 time when the prior suit was commenced. (r) ihe plaintiff 
 
 cannot, alter a plea in abatement of the pendency of a prior suit, 
 
 avoid the efiect of the plea by discontinuing the first action 
 
 •which was pending at the time of tlie plea.(70 
 
 Qfialities and It '^'^il' "ow be proper to consider the effect, c/ualities, and 
 Jbrm. form of these dilatory pleas. A writ is divisible, and may be 
 
 abated in part and remain good as to the residue ; and the de- 
 fendant may plead in abatement to part, and demur or plead in 
 bar to the residue of the writ or declaration ; the settled rule 
 being, that il tiie plaintiff in his action brought either upon a 
 general writ, such as debt, detinue, account, or the like, or on 
 a certain and particular one, as asfimn/isit^ trespass, case, 8cc. 
 
 * 444 *demunds two or more things, and it appears from his own 
 shewing that he cannot have an action or better writ tor one 
 of them, the writ shall not abate in the whole, but stand for so 
 much as is good, but if ii appear upon his own shewing, that 
 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 in anotlier form tor that, then the whole writ shall 
 abate. (m) Formerly it was the practice to plead in abatement, 
 when upon the face of the plainlift 's declaration it appeared 
 
 (5) Com. Dig. Abatement, II. •iA. (.s) S.iyer's Rep. s. 216. k post, vol. 
 
 Bac. Abr. Abatement, M. See the 2. 490. 492. 
 
 precedent, pott, vn!. 2. 418. {t) 3 Burr. 1423. I Bl. Rep. 437. 
 
 (?•) 5 Co. 62. 2Wil.s. 87. PMtzg. 2Lev. l4l. 2 Stra. 1169. 
 
 313. Buc. Abr. Abatement, M. Com. (r) 1 Salk. S29. 2 Ld. Raym. 1014. 
 
 Dig. Abatement, H. 24. 2 Ld. Raym. Doct. Plac. 11. 
 
 1102. Sed qiuere, it" it were alitged, (?<) 11 Co. 45. b. 1 Saund. 285. 
 
 that tbc inferior coui-t had jarisdic- Rep. temp. Hardw. 273. 2 B. k P. 
 
 tlon, Fitz^. 314. 420. but see 2 Spund. 210. in notes- 
 
 aud. 210. d. and 1 Saund. 285. n. 7-
 
 OF PLEAS IN ABATEMENT. 444 
 
 that a part of the plaintiff's cause of action was not well founded, Q'^^'i^^ c"*^ 
 
 . . furiii. 
 but now it is most usual to demur to the whole declaration if 
 
 there be a misjoinder, or if there be no misjoinder, then only 
 to the defective part.(w) Where the matter goes only to de- 
 feat a part of the plaintiff 's cause of action, the plea in abate- 
 ment should be confined to that part, and if tlic defendant were 
 to plead to the whole, his plea would'be defective ;(:t) but if a 
 plea in abatement contain matter which goes only in part abate- 
 ment of the writ, and conclude with a prayer that the whole 
 writ may be abated, the court may abate so much of the 
 writ as the matter pleaded applies to, if there be a plea to the 
 other parts of the declaration. (y) 
 
 As these pleas delay the trial of the merits of the action, 
 the greatest accuracy and precision are required in framing 
 them ;(z) they should be *certain to every intent, and be * 445 
 
 pleaded without any repugnancy,(2) and must in general give 
 the plaintiff a better writ or bill, and therefore a plea of misno- 
 mer in the christian name must state what is the defendant's 
 surname. («) This is the true criterion to distinguish a plea in 
 abatement from a plea in bar;(^) and where the subject mat- 
 ter of the plea tends to shew that the plaintiff cannot maintain 
 M7iy action it should be pleaded in bar and not in abatement ;(c) 
 therefore where the action is by an administrator, stating a 
 grant of administration from a bishop of a peculiar diocese, a 
 plea of bona notabilia should be in bar and not in abatement, 
 because it shews that the plaintiff has no right to sue at all in 
 the character of administrator.(f/) Great accuracy is also ne- 
 cessary in the form of the plea as to the commencement and 
 conclusion, which it is said make the piea,(rO and a plea which 
 
 (w) See the cases, 2 Saund. 210. in (6) Browiil. 139. 1 Sauiul. 274. n. 
 
 BOles. 4. 2S4. n. 4. 2 B. & P. Xli. 4 T. 
 
 (x) 5 T. R. 557. R. 227. 6 East, 60U. Com. Dig. 
 
 iy) 2 B. & P. 420. 2 Saund. 210. d. Abatement, I. 1, 2. 
 
 (s) 3 T. R. 180. Wiilos, 42. 2 Bl. (c) 4 T. K. 227. 
 
 Rei'. 1096. 2 Saund. 209. b. n. 1. (J) 1 Saund. 274. n. 3. 
 
 Com. Dig. Abatement, I. H. (f) Latch. 178. 2 Saund. 209. c. d. 
 
 (z) Co. Lit. 30.3. Cio. Jac. 82. 9 2 Ld. Raym. 1019. But sec the ea- 
 
 Lev, 67. 3 T. 11. 186. Willes, 42. tries referred t» in 3 T. I'l. 18«. 
 
 (a) 8 T. R. 515, 516. Bac Abr. 
 Misaaucr, F.
 
 445 OF PLEAS IN ABATEMENT. 
 
 qnalities and concluded with prayintr iude;ment « if" (instead of '« of,") the 
 
 form. . . , . - 
 
 plaintift''s bill was held bad on demurrer, though the words 
 " and that the same may be quashed" were also added. (/") 
 
 The general rule which prevails in pleading is, that a mere 
 prayer of judgment, without pointing out the appropriate judg- 
 ment, is sutTicicnt, because the facts being shewn, the court are 
 4<4o bound to pronounce *the proper judgment ;( 5") and upon that 
 principle it has been held, that if a plea which contains matter 
 in bar of an action conclude in abatement, it is a plea in bar 
 notwithstanding the conclusion and final judgment shall be 
 given upon it, for if the plaintiff have no cause of action he can 
 have no writ.(//) But the anxiety of the courts to discourage 
 dilatory pleas has induced them to depart from this rule in re- 
 gard to the ciicct of the beginning or conclusion of such pleas ; 
 and if a plea w^hich contains matter only in abatement conclude 
 in bar and is found against the defendant it is a plea in bar, and 
 final judgment may be given, because by praying judgment if 
 the plaintiff shall maintain his action^ the defendant admits the 
 writ to be good.(z) So a plea which begins in bar^ though 
 it contains matter in abatement and concludes in abatement, is a 
 plea in bar and final judgment may be given. (7) It is not ne- 
 cessary in a plea in abatement to state any venue for the facts 
 therein averred, because they shall be tried where the action 
 is laid ;CA) and if it be pleaded that another person who ought to 
 have been suedv.ith the defendant is alive, to wit, in Spain^ it is 
 mere surplusage, and will be considered as pleaded without any 
 veniic.^l) Z)7v////f77£/ in a plea of tins description is as objection- 
 * 447 ''^^<^ '^^ '" ^ P^^'^ ^'^ ^^"''' '^'^^ therefore the *defendant cannot plead 
 two outlawries or two excommunicf.tions in abatement, for one 
 would be sufficient to abate the writ,(«2) but misnomer of chris- 
 tian and surname maybe pleaded in one plea.(72) The court will 
 not permit a defendant to plead at the same time in abatement 
 
 (./■) 3 T. R. 185. (/) 2 SnunfL 209. note c. d. 
 
 (^)4 East, .i02. 500. i Saund. or. B:ic. Abr. lit. Abatement, P. 1 Lc!. 
 
 n. t. But see the argument in 3 T. R. Rayni. 69i. 
 !«''• (k) 7 T. R. 243. 1 S.iiind. S. >. 
 
 (,'0 2 Saund. 209. c. 36 Hen. YI. Bae. Abr. tit. Abatement, P. 
 CIS. (Old. ibid. 
 
 (/) 1 EHst, 63G. 2 Saund. 2O0. d. {m) Bac. Abr. tit. Abatement, P. 
 2 Ld. Rajm. 1018, lOlU. G94. (72) Bac Abr. Misnomer, F.
 
 OF PLEAS IN ABATEMENt. 447 
 
 ahd in bar to the sa7?ie matter, as non est factum and coverture Qualities and 
 
 of the plaintiff since making the bond ;(o) but in some ci.s.es /"'"'"• 
 
 the defendant may plead in abatement to one part, unci eitiicr 
 
 in abatement or bar to the other part of the same iieclara- 
 
 tion ;(/0 and in an action against two defendants, each may 
 
 plead distinct matter in abatement of the same suit ;(</) or one 
 
 piay plead in abatement and the other in bar.(r) 
 
 The for?}! of a plea in abatement may be more particularly 
 considered under the following heads: ist. As to the title 
 of the term ; 2dly. The commencement 3dly. The body or 
 subject matter ; and 4lhly. The conclusion. 
 
 With respect to the title of the term, as pleas to the juris- 
 diction of the court and in abatement, ought to be pleaded be- 
 fore a general impurtance, and witliin four days inclusive after 
 the delivery or filing, and notice of the declaration,(.s) such 
 pleas should in general be pleaded of the term in which the 
 •writ was returnable, unless the declaration be delivered or filed 
 in vacation, or so late in the term that the defendant is not 
 bound to plead to it of that term, in which cases the defend- 
 ant may within the first four days inclusive of *the next term ^ 448 
 plead to the jurisdiction of the court, or in abatement, entitling, 
 however, his plea of the preceding term,(^) or he may plead 
 to the jurisdiction as of the second tbrm with a general sfieciaL 
 imfiarlance., which is with a saving of all advantages and excep- 
 tions whatsoeverjCx") or he may plead in abatement of tlie se- 
 cond term with a special imparlance, which is a saving of 
 all exceptions to the writ, bill, or count. («) If either of 
 these pleas be entitled of a subsequent term to the declara- 
 tion, and without the proper special imparlance, the plaintiff 
 may either sign judgmentj(w) or apply to the court by motion 
 
 (0) Rep. temp. Hai-ihv. 1.35, tlie form of the entr)', post, vol. 2. 
 
 Ip) Com. Dig. Abatement, I. 5. 40S. 
 Ante, 443. {u) Ante, 424. R!ic. Abr. 1. tit. 
 
 (fy) III. I. 6. Abatement, C. 2 Saund. n. 2. See 
 
 (r) III. I. 7. tlie form of the erAry, post. vol. 2, 
 
 (v) Ante, 422. 406, 407. Com. Dig. Abatement, I. 
 
 (0 Ante, 422. kc. 7 T. R. 447. n. 202 Sauiid. 1 . n. 2. 
 U. I Salk. 367. Gilb. K. B. 344. (w) 4 T. R. 520. 7 T. R. 218. 44"' 
 
 (r) Ante, 422. Com. Dij. Abate- n. d. 2 Sa'md- ;. n. ^ 
 ment, I. 19. 2 Sannd. I, n. 2. See 
 
 Vor.. T. r 41 3
 
 448 OF PLEAS IN ABATEMENT. 
 
 Qualiiics and to set it aside, (x) or he may demur to it,(j/) or allege the im- 
 -'"""' parlance in his replication by way of estoppel ;(z) but if the 
 
 plaintiff reply to the plea instead of demurring or alleging the 
 estoppel, the fault is aided.(G) 
 
 The co7nmencemcnt of these pleas may be considered, 1st. 
 As to the statement of the appearance, either in person or by 
 attorney ; Sclly. The nature of the defence, and 3dly. The 
 prayer that the bill or writ may be qucshed, &c. 
 
 Pleas of misnomer must not begin with the^words " and 
 * 449 " ^'''^ ^""^^ ^ ^ ^^^^^^ ^y ^'^^ name of *E Z>," or " and he against 
 •' whom the plaintiff hath exhibited his bill by the name of 
 " E D" Sec. for that would be repugnant. (6) Pleas to the 
 jurisdiction must be pleaded in person, because the appoint- 
 ment of an attorney of the court admits its jurisdiction ;(c) 
 but pleas in abatement in general may be pleaded by attorney, 
 because the jurisdiclion of the court in the latter case is not 
 disputed.; (/) 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 in)port of the 
 warrant of attorney. (C) It appears advisable to frame pleas of 
 misnomer as if pleaded in person and not by attorney, though 
 there are decisions that the plaintiff cannot demur on account 
 of a mistake in this respect, but should refuse to accept the 
 plea ;(y) coverture also should be pleaded in person .(^'•) and 
 where an infant pleads it must be by guardian and not by at- 
 torney or prochcin amy.{h') 
 
 The nature of defence has already been stated ;(?) pleas to 
 the jurisdiction and in abatement should be after half and be- 
 fore full defence. (y) It is advisable to make the former dc' 
 
 (.r) 6 T. S. 373. (c) Ante, 412. 2 Sannd. 209. b. c. 
 
 ( J/) 6 T. H. 3C9. 1 Wils. 2C1. 2 Summary on Pleading, 51. 
 
 B. k P. .384. ,) Inst. CI. 40. '2 Sannd. (J) Ante, 412. 2 Sannd. 209. 
 
 1. n. 2. (e) Sunimaiy on Pleading, 50. &c. 
 
 (;) 2Saund. l.n. 2. See the form (/) 2 Saund. 209. b. c. 1 Ld. 
 
 of estoppel, 1 Latw. 23. I Wentw. Raym. SO.). Summary on Pleading, 
 
 Index, 13. 3 Inst.'Cl. 39. Clift. 18. 50,51. 
 
 pi 46. 19. pi. 50. 20. pi. 53, 54. (§) 2 Sannd. 209. c. 
 
 (n) 2 Saund. 1. n. 2. 1 Vont. 236. (h) Ante, 412. See the precedent^ 
 
 {b) Ant'.', 411, 412. 5 T. R. 487. post, vol. 2. 410. 
 
 8 T. K. 515. 3 Wils. 413. (/) Ante, 412 to 414. 
 
 U) Aute, 414.
 
 OF PLEAS IN ABATEMENT. 449 
 
 fence, though it seems questionable whether the plaintiff could Qualities and 
 demur for the omission, or object otherwise than by refusing >''""■ 
 to accept the pled.(X-) ^. 
 
 *Pleas to the jurisdiction and personal privilege to be sued * 450 
 in another court, usually commence wiihoui any prayer of judg- 
 ment, and conclude^ " and this he the said 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 cognisance of 
 " the said plea," or " whether he ought to be compelled to 
 " answer ;"(/) but sometimes these pleas commence also w ith 
 a similar prayer.(7?z) 
 
 In pleading to the ficrson of the plaintiff or defendant, in re- 
 spect of disability 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 ;"(«) 
 and these pleas frequently begin with a similar prayer, as alien 
 enemy, kc.;o) and a plea of this description concluding to the 
 writ would be bad ;(/i) but pleas of coverture of the plaintiff 
 or defendant, as the objection goes rather to the non-joinder of 
 the husband than to the disability of the fcme^ conclude to the 
 writ.('y) 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 
 vmtii, Scc.(r) and where *death of the plaintiff, since the issu- * 451 
 
 ing of the writ is pleaded, it should conclude, if the court 
 will further proceed, £cc.(5) 
 
 Where the defendant pleads in abatement to the writ., for 
 matter ajijiarent on the face of it, it is said that he should be- 
 gin, as well as conclude, his plea, by '•'■ praying judgment of the 
 
 {k) Com. Dig. Abatement, I. 16. (/») Com. Di;,^ Abatement, 1.12. 
 
 Skin. 58-2. Ante, 41 '2. (ry) Post, vol. '2. 4l4, 4l5. Lil. Eut. 
 
 (0 !2 Saur.d. '209. <1. Com. Dig. 1. r2,3. Asi. Eiit. 9. 3 Inst. CI. 70. 
 
 Abatement, I. 12. Bac. Abr. Abate- I Wenlw. 47. 
 
 ment, P. Ante, 433. (r) 12 Mod. 400. 3 Lev. 208.— 
 
 (m) See the precedent, 8 T. R. Lutw. I'J. 1 Sti-a. 521. 3 Inst. CI. 
 
 631. Post, vol. '2. 414. 18. 2Saund. 210. 
 
 (h) 2 Saund. 9. n. 10. 209. d.— (fi) Com. Dig. Abatement, I. 12. 
 
 Lalcb. 178. Lil.Eut.l. 3 Lev. 120. 4 E ait, 502. 2 Sfiuml 
 
 (o) Lil. Ent. 1. Lutw, IGOI. Ast. 209. d. 
 Eu'.. 11.
 
 451 OF PLEAS IN ABATEMENT. 
 
 Qvalities and " ivrit, and that the same may be guashed."U) But where A© 
 plea is for matter dehors., as misnomer, &c. the plea should 
 oniy conclude with that prayer. (,-y) The courts having now 
 established a rule, that oyer of the writ cannot be allowed,(M) 
 a vuricince between the writ and count, or declaration, can be 
 no longer pleaded, and many of the decisions in the books as 
 to the form of the plea, are no longer applicable, and now in 
 gcnercd, a plea in abatement of the writ may be both of the 
 writ and declaration, 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 some of the counts in the declara- 
 tion. (7^) If the action be by bill., the plea should conclude by 
 praying judgment of the bill, and not of the declaration only, 
 which is a conclusion in bar;Cr) it may, however, be of the 
 
 * 452 bill 'i»d declurution,(!/) and *if a plea in abatement to the writ 
 
 were to conclude if the defendant ought to answer to the said 
 bill it is insufficient. (z) 
 
 Affidavit of At common law when the defendant pleaded a foreign plea, 
 
 ^^^ '• the nature of which has already been stated, (a) he was obliged 
 
 to make oath of the truth of it ; but this was not necessary in 
 the case of a plea to the jurisdiction or any plea in abate- 
 ment. (/-i) But now by 4 Ann. c. 16. s. II. " jig dilatory plea 
 " shall be received in any court of record., vmless the party of^- 
 " fering such plea do, by aflidavit, prove the truth thereof, or 
 " sliew some probable matter to the court to induce them to 
 *' believe that the fact of such dilatory plea is true." This 
 statute extends to criminal as well as civil cases,(c) 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 
 
 (0 SSaiiml. 209. a. 11. 1. 209. d. (j() Tidd's Prac. 4th edit. S77.— 
 
 Com. Dig. Abatement, 1.12. Lutw. Post, vol. 2. 416, 417. Com. Dig, 
 
 11. 12 Mod. 525. Abatement, I. 12. 
 
 (f) Id. ibid. (:) 2 Saund. 209. d. 5 Mod. 146. 
 
 00 1 B. & P. 646. n. b. 1 Saund. 1 Salk. 297, 298. 3 Bl. Com. 303. 
 
 318. 6T. R. 364. See the propriety Com. Dig-. Abatement, i. 12. 
 
 of this regulation questioned in 3 B. (n) Ante, 429. 1 Saund. 98. n. I. 
 
 & P. 399. 7 East, 384. {b) 1 Saund. 98. n. 1. Carth. 402^ 
 
 (70) 2 Saund. 210. c. Styles, 435. 5 Mod. 335. 
 
 {x) 2 Saund. 209. d. 5 Mod. 144. (c) 3 Burr. 1617. 
 12Mod. 133. S. C. 10 Mod. 192. 210, 
 ''1 1
 
 OF PLEAS IN ABATEMENT. 
 
 452 
 
 delay of it, as aid prayer, in a real action,(rf) or a plea in scire Affidavit of 
 facias against lertenants that there is another tertenant not 
 named, though these pleas are not strictly in abatement. (e) 
 But such pleas in bar as are usually termed sham pleas, are 
 not dilatory pleas within the meaning of this statute ; and an 
 affidavit is not necessary in all cases, for the statute extends 
 only to such matters as are dehors the record, and not to such 
 matters as will appear to the court on inspection of their own 
 proceedings,(./') *as the want of addition in an original writ * ^^» 
 when that matter was pleadable in abatementjC?-) or privilege 
 as an attorney of the same court, to be sued by bill •,(Ji) because 
 in the first instance the defect in the writ is apparent on the 
 face of it ; and in the latter, the court by examination of their 
 own record, may ascertain the truth of the plea ; but where 
 the defendant pleaded after oijer of the original that it was not 
 returned, the court set aside the plea for want of an affidavit. (z) 
 The affidavit may be made by the defendant, or a third pcr- 
 son,(^') and before the declaration is actually filed or deliver- 
 ed:(A:) it must be properly intituled in the cause, (/) and be posi- 
 tive as to the trirth of every fact contained in the plea, and 
 should leave nothing to be collected by inference ;(m) it should 
 be stated that the plea is true in substance and fact, and not 
 merely that the plea is a true plea ;(n) and if there be no affida- 
 vit, or it be defective in any particular, the plaintiff may treat 
 the plea as a nullity, and sign judgment,(o) or move the court 
 to set it aside.(/;) * 45^ 
 
 *Where misnomer either of the plaintiff or defendant is Hep/ication 
 truly pleaded, the plaintifTmay amend his declaration, and need Ic'cedin^L 
 
 (d) 2 P.. k P. .384. 2 Saund. 210. e. 
 
 (e) 2 ShuiiiI. 210. e. 
 
 (/) 3 B. k P. SOT. Piac. Reg. 5. 
 Lil. Raym. 1 +09. Saver's Rep. 293. 
 
 (?•) lA. Raym. 1409. Pi-ac. Reg. 5. 
 
 (A) Claridge, gent, one, &c. ads. 
 Macdougiil, Trill. Term, 47 Geo. III. 
 K. B. 3 B. J*c P. .397. But see 2 
 Stra. 738. and Cora. Dig. Abatement, 
 I). 0. If the plea be untrue, or the 
 defendant has ceased to be an attor- 
 ney, the plea may be set aside. Prac. 
 Reg. 8. 
 
 (0 1 Stra. f>39. 2 Ld. Raym. 1409. 
 
 (./) Barnes, 344. Prac. Reg. C. 
 
 {h) 4 East, 348. 
 
 (/) Bac. Abr. Abatement O. 2 
 Stra. 1101. Barnes, 348. 
 
 (m) Saver's Rep. 293. 
 
 {71) 2 Stra. 705. See the prece, 
 dents, Lil. Ent. 1. and post, vol. 2. 
 412.417. 
 
 (o) 2 Saund. 210. e. 1 T. R. 277- 
 689. 5T. R. 210. 7T. R. 298. 
 
 (/») 1 Stra. f)38. Sayer's Rep. 19. 
 293. 3 Burr. 1617.
 
 454 OF PLEAS IN ABATEMENT, &c. 
 
 Replications not enter a cassetur billa or " breve ;"(</) but where the non- 
 
 an<l other pro- . . ^ 
 
 ceedin^s. joinder of one of several defendants is pleaded, the piauitiff 
 
 cannot amend, but must enter a cassetur., and commence a 
 fresh action. (r) And when the plea is true, and the plaintiffis 
 not at liberty to amend he should enter his cassetur before he 
 comiiiciKcs 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 rclitij ; or if it be in- 
 sufficient in point of law, he may demur., and in some cases sign 
 judgment, as for want of a plea ;(<) though if the plea be mere- 
 ly defective in point of form, the plaintiff should deraur.(w) 
 And where the defendant has ippeared in the name by 
 which he was sued, such appearance may be replied by way 
 of estoppel. {v) When the plea consists of matter of fact, which 
 the plaintiff denies, the repjicution mjy bet^in without any alle- 
 gation that the writ or bill ouj^ht not to be quashed ;(w) it must 
 not be as to a plea in bar.(-r) because that would be a discon- 
 tinuance, but should conclude to the country ; and which is 
 * 455 proper where to a plea of *niisnomer the plaintiff replies that 
 the defendant is known as well by the one name as the 
 other :(</) there are, hov/ever, precedents in which the plaintiff 
 has concluded with a formal traverse and verification ',(z) and 
 when this is adopted, it was laid down by Lord Holty that the 
 plaintiff" ought to pray damages, because if it be found against 
 the defendant, the juiy must assess the plaintiff's damages, 
 and final judgment is to be given ; but where the plaintiff con- 
 fesses the defendant's plea, and avoids it by other new matter, 
 he should not pray damages, but must maintain his writ. (a) 
 
 (9) 7 T. R. f.9S. 3 Anstr. 935. 1 if the plea commence or conclude 
 
 B. & P. 40. It is the practice not to improperly in bar. Hac. Abi*. Abate- 
 
 pennit such amendment if the de- meiit, 8. Com. Dig. Abatement, I. 
 
 fendant has previoiiski maiie a tender. 15. 
 
 (r) See the form, post, vol. '2. 50O. {y) 1 B. 8c P. 60. 1 East, Si'Z. 2 
 
 (s) Ante, 443. n. v. Bac. Abr. Wils. 367. See the precedents, post^ 
 
 Abatement, VI. vol. 2. 589, 590. 1 Wentw. 
 
 (0 3 B. k P. 395. (s) Lil. Ent. 1, 2. Co. Ent. 160. 
 
 (?0 3T. R. 1S5. («) '2 Sannd. '211. n. 3. 3 Med. 
 
 (f) Post, vol. 2. 590. 2 New Rep. 2S1. 1 Ld. Raym. 338. 594. 2 1^. 
 
 453. Rayra. 1022. Bac. Abr. Abatement, 
 
 (w) 1 B. &. P. 61. P. Com. Dig. Abatement, I. 12. See 
 
 (x) Carth. 187. Com. Dig. Abate- the precedents, I "\yentw< 
 ment, I. 15. 1 E. &i P. 61, Miter^
 
 AND PROCEEDINGS THEREON. 455 
 
 If a replication to a plea in abatement of llie ivrit^ begin " that liepHcdtions 
 "the said declaration," ought not to be quushed, but' conclude ^c7edin'^s ' 
 properly, it is sufficient ; for such words may be rejccied as 
 surplusage : and ii is not necessary in tlie beginning of the re- 
 plication to say that the writ ought not to be quuslied ; for in 
 favour of the plaintiff the court will give judgment according 
 to the fact, without reference to tiic prayer of judgment. (6) If 
 an issue in fact be joined upon the replication, and found for 
 the plaintiff, the jury should assess the damages, and the judg- 
 ment is peremptory for the delay, cjuod recujieret^ and not <jUod 
 resfiondeat ;(c) and the same rule prevails in indictments for 
 misdemeanours, though in cases of felony in favortm vi(e, it 
 is otherwise. (ri) 
 
 *If the plaintiff demur,{e) it does not appear to be necessary * 45S 
 
 to assign any special causes, for it has been decided on the 
 statute of Elizabeth^ (the language of which is similar to that 
 of the statute 4 Jan. c. 16.) that the statute only applies to 
 pleas in bar :(/) however, it appears most advisable to demur 
 specially where the plea is merely informal. (5-) Where the 
 plea properly commences and concludes, as in abatement, but 
 is insufficient in some other respect, the demurrer should pray 
 judgment that the defendant may answer further thereto, 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. (A) So where the plaintiff rt-filies 
 to a plea in abatement, and the defendant demurs to the repli- 
 cation, the plaintiff should not conclude his joinder in demur- 
 rer with a prayer of judgment of his debt or damages, but 
 should merely pray that the defendant may answer over aguin.(2) 
 And where the plaintiff demurred to a plea in abatement, as 
 in bar, praying judgment and damages, and the defendant joined 
 
 (A) 1 B. k P. fiO. (./") 2L<1. U.ivra. 1015. and see 1 
 
 (t) 1 Kast, 544. 2 Wils. 318. Com. L<). Rayni. .337. 1 Saik. 194. Tidd'n 
 
 Di;.^. Abatement, I. 14, 15. Hic. Abe. Prac. 4tli edit. 8S5. 
 
 Abatement, P. 2 Sauud. 210. n. 3. (^) 3 T. R. 186. 
 
 Gilb. C. P. .13. (/i) 2 Saiind. 210. g. 
 
 (J) 8 East, 107. (0 1 Wils. 302. 2 Sattiul. 210. % 
 
 (e) See the urccedents referred to 210. u. J. 
 in 2.SaiiiuI. 210. n. 2. Po.st, vol. 2 
 679. and joinder llicreto, id. 682.
 
 456 OF PLEAS IN ABATEMENT, &c. 
 
 liepUcutions as ill bar, it was held to be a discontinuance, because the de- 
 
 and other pro- . / • i 
 
 eetdings. inurrer in bur was no answer to the plea in abatement, and a 
 discontinuance of part is a^liscontinuance of the whole '.{j) the 
 plaintiff, however, may amend, and the mistake would be aided 
 
 * 457 by a *verdict.(A:) But where the plea in abatement improper- 
 ly commences or concludes as a plea in bar, the plaintiff may 
 demur either in bar or abatement ; and if he adopt the former, 
 which is most advisable, he may conclude his demurrer as in 
 bar and with a prayer of damages, and the judgment will be 
 final. (/) On the argument of a demurrer to a plea in abate- 
 ment, or to a replication thereto, the defendant cannot take any 
 objection to the declaration, for nothing but the writ is then in 
 question, (w) unless where matter is pleaded in abatement 
 which might be pleaded in bar.(n) 
 
 If there be judgment for the plaintiff on demurer to a plea 
 in abatement, or a replication thereto, the judgment is in general 
 interlocutory, quod resfiondeat ousler.(o) Where, however, a 
 plea containing matter which can only be pleaded in abatement, 
 improperly commences or concludes in bar, the judgment on 
 demurrer may be final :{/i) and the same rule prevails where 
 matter in abatement is pleaded after the last continuance ;((/) 
 and if there be judgment of resfiondeat ouster, no other plea 
 in abatement will be allowed. (7-) 
 
 '^ 458 The judgment for the drfendanC on a plea in *abatement, 
 
 whether it be on an issue in fact or in law, is that the writ or 
 bill be quashed ;(&) or if a temporary disability or privilege be 
 pleaded, that the plaint remain without day, until, &:c.(/) If 
 the plaintiff succeed on demurrer to a plea in abatement, and 
 
 (./) Show. 255. Carth. 187. I Salk. Wils. 367. See the forms, Tidd's 
 
 21S. I East, 54-2. '2 Saiiiul. 210. g;. foi-ms, '2-J3. 10 Wentw. 61. 
 
 (i-) 1 Wils. 302. 1 Salk. 218. (/<) 1 East, 036. Lutw. 41. Com. 
 
 (/) Bae. Abr. Abatement, P. Com. Dii;;. Abatement, I. 15' Bac. Abr. 
 
 Di.<. Abatement, I. 15. Abatement, P. 
 
 (;h) Salk. 212. Lutw. 1592. Carlh. (9) Com. Dig. Abatement, I. 15. 
 
 172. Willes, 478. Brx. Abr. Abate- (r) Bae. Abr. tit. Abatement, O. 
 
 menl, P. Com. Dig. Abatement, I. Com. Dig. Abatement, I. 3. 2 Saund. 
 
 14. 40, 41. 
 
 (/O Lutw. 1 604. Com. Dig. Abate- (s) Bac. Abr. Abatement, P Gilb. 
 
 nient, I. 14. C. P. 52. See the precedents, 10 
 
 (0) 2 Saund. 210. n. 3. Com. Dig. Wentw. Index, 61. 
 
 Abatement, L 14. I East, 544. 2 {() Lutw. ID. Clift. 3. 2 Saund- 
 
 210.
 
 OF PLEAS IN ABATEMENT. 458 
 
 the judgment is interlocutory, .re.9/^on(/fa^ ouster, there is no jfi'pli cations 
 judgment for costs, because the statute of Gloucester only gives "^etZ/K'-T^"' 
 costs where damages are recovered ;(«) but when the defend- 
 ant's plea is on issue found to be untrue, the judgment is final, 
 and the plaintiff will recover costs.(Ty) If the plaintiff enter a 
 cassetur billa or breve, he is not liable to costs. (^y) On an is- 
 sue found for the defendant, he is entitled to costs, but not if 
 he succeed on demurrer. (z-) 
 
 ((/) L(l. Raym. 992. 1 Salk. 194. (tv) Id. ibid. Tidd's Prac. 4tU 
 Tidd's Forms, 292. Tidd's Prac. 4lU edit. G23. HuUock, 131. 
 eilit. 846. &c. (.x) Ld. Raym. 992. 1 Salk. 104. 
 
 {v) U. Mi. IluUock, 131. Tidd's Prac. 4th e*t- 
 
 885. 
 
 Vol. I. [• 42 j
 
 459 
 
 CHAPTER VII. ^ 
 
 OF PLEAS IN BAR. 
 
 Jr LEAS in bar deny that the plaintiff has any cause of ac- 
 tion,(a) and do not, like pleas in abatement, give a better 
 writ ;(Z>) they either conclude the plaintilT by matter of estop- 
 pel, -which, however, rarely occurs in a plea.(c) or shew that 
 the plaintifl' never had any c!luse of action ; or admitting that 
 he had, insist that it is delernjined by some subsequent matter. 
 They are also either to the whole or to a part of the declara- 
 tion ; and where there is only a defence to a part, it is in ge- 
 neral advisable, on account of costs, to confine the plea to that 
 part.(rf) We have seen that pleading is in general a mere 
 statement of facts, {c) and pleas in bar state the various defences 
 of which under the circumstances of each particular case, the 
 defendant is at libei'ty to avail himself in a court of laiv. Mat- 
 ^ 460 ter of *defence in equity ,(./") or merely founded on the prac- 
 tice of the court, is not in general pleadable, (j') and therefore 
 biiil cannot plead that the principal is a bankrupt, and has ob- 
 tained hi% certificate. (A) It would be foreign to the purpose 
 of this treatise lo attempt to state all the various defences in 
 personal actions ; those which most usually occur in practice 
 are given in their natural order, in the fo!lo\nng analytical ta- 
 bles ;(z) and the mode in which they should be taken advan- 
 tage of arc afterwards more fully stated. 
 
 (rt) See the definition, Co. Lit. 303. (.i) 5 East, 261. ' East, 3i25. 
 
 b. tfcntli's Maxims, and 6 Co. 7. (<•) Ante, 215. 
 
 (/)) Ante, 445. ( /') 7 East, 153. 8 East, 344, 
 
 (c) Rac. Abr. Plea-, I. 11. 5 !Ien. (^)-1Ya%\., ^^1. 7 East, 153. 4 
 
 VH. 14. 1 Leon. 77. Sav. 8G. As East, 311. TIdd's Prac. 4th edit, 
 
 pleading matter of estoppel more fre- 10-22. 
 
 quently occurs in replications and (/() 2 B. & P. 45. 7 East, 153, 154. 
 
 subsequent proceeding;?, the p(ii:its (/) .See also Com. Dig. Pleader, ai 
 
 relating to it will be hereafter coasi- to tlio different defences and picas in 
 
 dered. each particular action.
 
 OF PLEAS IN BAR. 
 
 --H61 
 
 VIIE DEFE.VCES TO .ICTIO.VS O.V CO:\'^rnACTS .VOT 
 LW'JJER SEAL. 
 
 t 
 
 < 
 
 rist. Deny that there ever was cause of action. 
 
 "Ist. Deny that a suiricient contract was made. 
 1st. That no contract was in fact niacle. 
 2dly. Defendant incapable to contract, 
 fist. Infancy. 
 
 j 2dly. Lunacy, Drunkenness, Sec. 
 3dly. Coverlure. 
 thly. Duress, 
 odly. insulikiency or iilegulity of the cor.si- 
 «^ deration, or made under a misLake 
 
 or fraud. 
 4lhly. The act stipulated to be done, ii!ci!;al or 
 
 iiispr-ssible. 
 othly. The form of the contract insufficient 
 under statute of frauds, or not duly 
 stamped, o:c. 
 2dly. Admit a sufficient contract, but shew that be- 
 fore breach there was — 
 1st. A release. 
 2diy. Parol discharge. 
 
 3dly. Alteration in terms of contract by consent. 
 4tlily. Nbn-perform.;nce by plain iff of a con- 
 dition precedent, alteration, kc. 
 othly. Performance, payment. Sec. 
 6thly. Contract become illegal or impossible lo 
 perform. 
 
 2dly. Admit there once was cause of action, but avoid it by 
 subsequent or other matter. 
 1st. Disability of the plaintiH" to sue. 
 1st. Alien enemy. 
 2dly. Attainted. 
 I odiy. Outlaw. 
 
 l^4thly. A bankrupt, insolvent debtor, Sic. 
 2dly. Defendant not liai)le. 
 
 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. 
 idly. Accord and satisfaction. 
 3dly- lorei'j,n attachment, 
 liidy. Tender. 
 
 othly. Account stated, and a negotiable secu- 
 ■< rity given. 
 
 6thly Arbitrament. 
 7tlily. Former recovery. 
 8thly. Hi^^her secuiity given. 
 9thly A release. 
 lOtblv. Matu'e of limitations. 
 Jl'hly. Set-off. 
 ^5thly. Pleas by executors, See.
 
 462* 
 
 OF PLEAS IN BAR. 
 
 *TnE DEFEJVCES TO ACTIOJ\''S OJV COJ^TBACTS 
 UJYDEIi SEAL. 
 
 < 
 
 1st. Deny that there ever was cause of action. 
 
 '1st. No deed in fact made, or that it was delivered 
 
 as an escrow. 
 2dly. Deed invalid. 
 
 IsL. Defendant's incapacity to contract, 
 fist. Infancy. 
 J 2dly. Lunacy, 
 j 3diy. Coverture. 
 ■^ (^4lhly. Duress. 
 
 2clly. Illegality of consideration or contract. 
 j 3dly. Deed obtained by fraud, &c. 
 ■^ \^4thly. Contract, impossible to perform. 
 
 odly. Admitting that the deed was originally valid, 
 excuse of performance. 
 1st. lu'asure, alteration, Sec. 
 2dly Deed become impossible to perform. 
 oclly. Become illegal to perform. 
 1 4thly. jYoii-daimiiJicatus by the plaintiff of a 
 
 condition precedent. 
 \^5\.\\\Y.A''on-daiiwiJicatus, no award, &c. 
 4thly. Performance in pursuance of the deed. 
 C 1st. Solvit, ad diem. 
 \ 2dly. Performance, Sec. 
 2d]y, Admit that plaintiff once had cause of action, but avoid 
 it by subsecjuent or other matter, 
 pi St. Disability of plaintiff to sue. 
 1st. Alien enemy. 
 2dly. Outlaw. 
 _ 3dly. Bankrupt, insolvent debtor, he. 
 2dly. Defendant not liable. 
 
 C 1st. A certificated bankrupt. 
 \ 2dly. An insolvent debtor. 
 3dly. Cause of action discharged. 
 1st. By payment /?os^ (//«".'«. 
 2dly. Accord and satisfaction. 
 3dly. Foreign attachment. 
 4thly. Tender 
 <^ 5thly. Arbitrament. 
 6thly. Former recovery. 
 Zthly. Release. 
 
 8thly. Presumptive limitation. 
 ^9thly. Set-off. 
 i^4thly. Pleas by executors, heirs, devisees, &p. 
 
 \JV. 
 
 {
 
 OF PLEAS IN BAR. 
 
 *46! 
 
 *THE DEFEJ^CES TO JPIWCEEBLYG.S O.V J RECORJ). 
 
 I'lst. On judgments. 
 
 fist. Deny there ever was cause of action, nul iiel 
 
 I record. 
 
 2dly. Admit there once was cause of action. 
 {1st. Disability of plaintiff. 
 2dly. Defendant not liable to be sued. 
 Discharge under Lords' act, £cc. 
 3dly. Matter in discharge, 
 fist. Payment. 
 2dly. Release. 
 3dly. Levied hy Jieri facias . 
 4thly. By elegit. 
 5thly. By ca. sa. 
 6thly. I lenc administravit . 
 _7thly. Implied limitations. 
 2dly. On recognisances of bail. 
 
 1st, Deny that there ever was cause of action. 
 
 1st. J^'ul tiel record of judgment or recogni- 
 sance. 
 2dly. No ca. sa. 
 "S 3dly. Death of principal. 
 j 4thly. Render of principal, 
 ^5thly. Errror, supersedeas.^ Sec. 
 __2dly. Admit that there once was cause of action. 
 r 1st. Disability of plaintiff to sue. 
 X 2dly. Defendant discharged by bankruptcy, Sec. 
 (_ 3dly. Matter in discharge. 
 1st. Payment. 
 
 2dly. Release to principal or bail. 
 3dly. Fi. fa. 
 4thly. Elegit. 
 5thly. Ca. sa. &c. 
 
 THE I)EFEJ\'CES TO ACTIOJK'S OJV STATUTES. 
 
 1 
 
 1st. Denial of the fact. 
 
 jYil debet. 
 
 Not guilty. 
 2dly. Prior suit depending for the same offence. 
 ,3dly. Former recovery for the same offence.
 
 464* 
 
 OF PLEAS IN BAR IN GENERAL. 
 
 2rlly. 
 3dly. 
 
 <; 
 
 <; 
 
 1 
 
 .3clly. 
 
 2dly, 
 
 *THE DEFE.YCES LV ACTIO.VS FOR TORTS. 
 '1st. Deny that plaintiff ever had cause of action. 
 
 1st. Deny that defendant was guilty of the t07-t com- 
 plained of. 
 
 1st. In case or ti-over, not guilty of the pre- 
 mises. 
 In detinue, noji detinet. 
 In replevin, 21011 cc/iit, or cefiit in alia 
 loco, or property in defendant or a 
 strant^er. 
 4lhly. In trespass, notguiilyof the trespasses. 
 5thly. Id ejectment, not guilty of the trespass 
 and ejectment. 
 2dly. Justify the act. 
 1st. In case. 
 
 The words were true. 
 2dly. In replevin. 
 
 Avowries and cognisances for rents, 
 damagr-frasarit, 8cc. (see the pleas in 
 vol. 2. Analytical table XV. XVI.) 
 In trespass. 
 1st. To persons. 
 
 Son assault demesne, 8cc. (see 
 the pleas in vol. 2. Analy- 
 tical table XVI. XVII.) 
 To personal property. 
 Distresses dMmage-fcasant, Sec. 
 (see the pleas in vol. 2. Ana- 
 lytical table XVI.) 
 3dly. To real property. 
 
 Liberum tencmentum, rights of 
 common, ways, Sec. (see the 
 pleas in vol. 2. Analytical 
 table XVII.) 
 Excuse the. act. 
 '1st. In case. 
 
 That another person uttered the words, 
 and defendant only repeated them. 
 2dly. In ti-cspass. 
 
 Amicai)ie contest. 
 Inevitable necchsity. 
 Escape of cuttle by defect of fences, Sec. 
 Chasing sheep iniermixed with tlie 
 plaintif}''s, he. Sec. 
 jdly. Admit that plaintilV once had cause of action, but in- 
 sist that it is discharged by — 
 
 1st. Accord and satisfaction. 
 
 2clly. Arbitrament. 
 
 odly. Tender of amends for an involuntary 
 
 trespass. 
 4thly Former recovery, 
 othly. Dis less for the same cause. 
 6thly. Kele..se. 
 ^7ihly. Statute limitations} Sec. 
 
 < 
 
 L3dly. 
 
 <^ 
 
 <
 
 OF PLEAS IN BAR IN GENERAL. -^^465 
 
 ♦From these divisions we may perceive, that pleas in bar, Genr-al ob- 
 
 ,. c 1 • i-erv'-iiom. 
 
 as well in actions on contracts as lor torts, are ot two descrip- 
 tions : first, they deny that the plaintiff cvi-r had the cause of 
 action complained of: or secondly, they adinlc that he 07ice had 
 the cause of action, but insist that it jio lo7iffer exisls, either on 
 account of his having become an alien enemy, an outlaw, a 
 bankrupt, insolvent debtor, kc. or in respect of the dc/cndcmt's 
 beincj protected by his certificate under the bankrupt laws, or 
 by bein-j an insolvent debtor, or in respect of the cause of ac- 
 tion having been discharged or satisfied. 
 
 In the ancient course of pleading, there appear to have been 
 three descripdons of pleas in bar, by one of which the above de- 
 fences were to be taken advantage of: 1st. The general issue. 
 2dly. A denial o[ & fiariicular allegation in the declaration. And 
 3dly. A special plea of nctv matter not ajifiarent on the face of 
 the declai-rtlion. General issues, it is said, were framed in 
 words calculated to deny the whole of the facts alleged in the 
 dcclaration,(j) and are proper and in general necessary when 
 the defence merely denies the plain tift's allegation, and refers 
 the matter in dispute to the jury, who are the proper judges, 
 whether or not the fact complained of was committed. (X:) In 
 sssutiijisit almost every matter may be given in evidence on the 
 general issue 7ion assumpsit, on the ground, it is said, that as 
 the action is founded on the contract, and the injury is the 
 non-performance of it, evidence which disaffirms the obligation 
 ©f the contract at the time ivhen the action vjus commenced, goes 
 to the gist *of the action. (/) In debt on simple coniract also, •* 4(5g 
 
 under a plea of nil debet, the defendant was at liberty to prove 
 most matters which evinced that there was no existing debt ;(;«) 
 but in debt or covenant founded on a deed, on account of the 
 solemnity of the instrument under seal, («) and which in gene- 
 ral must be dissolved eo liga?iiine (juo ligatur, the plea of 7icn 
 est factum merely put in issue the existence of the deed, and 
 the defendant was not at liberty to plead 7iil debet, unless where 
 the deed was mere inducement to the action, and the debt ac- 
 
 (./) Gill). C. v. 57. 63, 64. (m) Gilb. C. P. 58. 
 
 {k) Gilb. C. P. 0.5. (,'i) PlowH. 9»lt 
 
 (0 Gilb. C. P. C5. Salk. 279. S 
 vSVia. 733. 1 B. k P. 481.
 
 466 OF PLEAS IN BAR IN GENERAL. 
 
 General (Ji- ciuccl by subsequent enjoyment, &c.(o) Jn case or trover, uiv- 
 der the general issue " Jiot guilty of the premises" almost any 
 matter of defence might be given in evidence, though any plea 
 admitting the plaintiff's property, and the act committed, but 
 justifying it, might be pleaded. (/z) In rejilevin, the general 
 issue non cejiit modo et forma.) merely puts in issue the act 
 complained of as stated in the declaration. In (resfiass, whether 
 to the person, personal property, or real property, the general 
 issue is ?io( guilty. {(j) In injuries to the absolute rights of per- 
 sons, this only puts in issue the act complained of ; but in in- 
 juries to the relative rights, and to personal and real property, 
 it puts in issue the existence of the right as well as the commis- 
 siou of the act complained of, though in the two Ial,ter cases, 
 possession will be sufficient against the defendant, unless he 
 can shew a better title. 
 
 ^ 46 / Formerly it was not unusual even in actions of *assumfisil for 
 
 the defendant to deny a /larticular 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 naight be more easily attainted, which was not so 
 i^adily done on a general issue, where the matter was more 
 complicated ;(*) tlius in assumpsit it was usual to traverse in 
 particular the consideration of the contract, &c. or the contract 
 ilself, or the phiintiff's performance of a condition precedent, 
 Sec. but in assumpsit this practice is now obsolete. In debt for 
 rent due by deed, the defendant may still plead non est factum, 
 or not'ning in arrcar ; or if not by deed, non dimisit, or nothing 
 in arrcar ; though these points might be given in evidence un- 
 der tlie plea of nil debet. (t^^ 
 
 From the history of our ancient law, it appears that in all 
 personal actions the defendant was at liberty to shew specially to 
 the court matters of defence, not merely consisting in a denial of 
 a nuiterial part of the plaintiff's declaration, but introductory of 
 
 (f/) <;nij.C. P. 57, 5S. 61, frl (s) Gilb. C. P. 61. 139. US. 
 
 (/O <;ilb. C. P. 64, Co. Leon. 66. 
 
 (v) (iilh. C. P. .sr. (0 Gilb. C P. 61, 6-3, 
 
 (r1 Cilfi. C. P. CO. 01. Doct. Plf.i;. 
 20 J.'
 
 OF PLEAS IN BAR IX GENERAL. 4(57 
 
 neiu mailer nol a/i/iartnl therein ;(?<) such as coverture, infancy, Gc""^'al ob. 
 
 1-11 I , if • ■■ . . . ciTvatiom-. 
 
 &c. uiiich though they are in eiiect negations ot the piaintiH s 
 
 declaration, yet being mutters of law, as to their sufliciency in 
 
 defence, were considered as properly refei-abie to the courl in 
 
 the first instance, (-u) though if iraverbcd, tiie existence in *faci '^ 468 
 
 of such defence Wiis then properly to be tried by a jury,(x) 
 
 So in general whatever ground of defence rendered the fact 
 complained of lawful, being matter of juncijication^ was to be 
 shewn to the court, as a license, &,c. because the court are 
 judges what is the law, and how far the fact, if done, was lawiul, 
 and the jury are only to find the existence of the fact, lormcr- 
 ly 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 appiise the court and the adverse 
 party of the nature and circumstances of the deience, and to 
 keep the law and the fact distinct. But the courts have of late, 
 in some instances, and the legislature in many more, penuitted 
 ihe general issue to be pleaded, and have allowed special mutter 
 to be given in evidence under ii, at the trial. And it has been 
 observed, that though it should seem much confusion and un- 
 certainty would follow from so great a relaxation of the strict- 
 ness anciently observed, yet that experience has shewn it to Le 
 otherv.ise, especially with the aid of a new trial, in case eiihef 
 party be unfairly surprised by the other.(!/) 
 
 •®H 
 
 We will proceed to consider the present practice as to plead- 
 ing the general issue or a special *plea in each personal action. * 469 
 And ^r*^ the several pleas in personal actions, and where the 
 general issue is suflicient, and when the plea must be special, or 
 maybe either general or special. And secondly^ the qualities and 
 forms of the different pleas, and other points relating thereto. 
 
 ()/) (;ilb. C. p. 63. 06. (.r) Id. iliiil. 
 
 \v) GHb. C. P. 62. 66. Ltl. Haym. ( y) .3 Bl. Com. SO.i, 306. Sed vide 
 SS. " 1 East, '217. Ld. Raj nv S8. 
 
 Vol. I. [ 43 ]
 
 469 OF PLEAS IN BAR IN ASSUMPSIT. 
 
 /. OF THE SEVERAL PLEAS. 
 
 Ill Assumpsit, 'pj^g general issue in an action of assumpsit — is " that the 
 " defendant did not undertake or promise in manner and form an 
 ^^ the plaintiff hath complained agabist him., and of this the de- 
 "fendant puts himself upon the country" iSfcXz) Considering 
 the language of this plea, it might perhaps seem, on first view, 
 that the defendant by it only denies the fact of his having made 
 the promise ; as however the definition of a contract not under 
 seal is " an agreement founded on a sufficient and legal consi- 
 " deration, to do some legal act, or to omit the doing an act 
 " the performance of which the law does not enjoin," the 
 above plea, by denying the contract, in effect puts in issue every 
 part of the above definition, viz. the agreeme7it, to constitute 
 which the defendant must have been in a situation competent 
 to contract, and consequently infancy, coverture, and duress or 
 any other defence shewing either an incompetency to contract, 
 or that the defendant had not the free exercise of his will, are 
 properly put in issue by this plea ; it is obvious also that the 
 
 * <«-/% sufficiency and legalitij of the consideration, and of the act to be 
 
 done or *omitfed, are fairly put in issue by this plea ; but the 
 allegation " 7ncdo Isf forma'" does not put in issue the form of 
 the count, but only the substance of the promise, for which 
 reason the plaintiff may give in evidence a contract diiferent 
 from that mentioned in the declaration, in time or place when 
 immaterial, though not a contract different in substance. (o) 
 
 When the defendant insists that no such contract as that sta- 
 ted in the declaration was in fact made, he must plead the ge- 
 neral issue,{b) under which he may give in evidence that ano- 
 ther person ought to have been made co-plaintiff ;(c) also in- 
 capacity to contract ; as that at the time the supposed contract 
 was entered into, the defendant was an infant,(rf) a lunatic, (f) 
 
 (z) See the precedents, post, vol. {d) 1 B. &t T'. 481. n. a. 1 Salk. 
 
 2. 42;5. Com. Dig. Pleader, G. 1. Not 279. 
 
 p;uilty is bad on demurrer, but is aided (e) 2 Stra. 1104. 2 Bl. Com. 292. 1 
 
 ty verdict. Stra. 1022. p'onbl. 46, ir. n.b. 49. n. 9. ace. Fonbl. 
 
 (a) Gilb. C. P. 51. Co. Lit. 282. b. 45 to 72. Co. Lit. 2. b. n. 12. 247. a. 
 
 (i^) Com. Dig. Pleader, 2. G. b. Powell on Contracts, 20. 23. Bac 
 
 (c) Ante, 7. n. (^). Abr. Idiots, F. contr.
 
 OF PLEAS IN BAR IN ASSUMPSIT 
 
 470 
 
 or drunk,(/) or ■s^feme covert ; but coverture which has taken jn Ammpsit. 
 place since the making of the contract, must be pleaded in 
 abatement,( g) so the defendant may give in evidence that he 
 was under duress ;(A) and the want of sufficient or legal con- 
 sideration for the contract, or illegality in the contract itself, 
 may be given in evidence under this plea ; as gaming,(z) usu- 
 ry,(7) 8cc. or that the plaintift' was an alien enemy. (/^r) or that 
 the contract was void *by the statute against frauds. (/) So a ■*• 471 
 
 release or parol discharge before breach, (/w) or an alteration in 
 the terms of the contract,(n) or non-performance by the plain- 
 tiff of a condition precedent, or that the contract was perform- 
 ed by payment, 8cc.(o) or that it afterwards became illegal or 
 impossible to perform, may, when they constitute a sufficient 
 defence, be given in evidence under this plea.(//) 
 
 These defences shew that the plaintiff yievet- had any cause 
 of action. Formerly matters in discharge, which admit that 
 once there was cause of action, must uniformly have been 
 pleaded specially jCy) afterwards a distinction v/as made be- 
 tween express and implied assumfidts : in the former, these 
 matters were required to be pleaded, but not in the latter ;(r) 
 at length, however, they were allowed to be given in evidence 
 under the genei'al issue ;(*) therefore, under the plea of non 
 assu77i/isity the defendant may give in evidence that the plaintiff 
 is a bankrupt ;(() or where a feme covert suing alone has no in* 
 terest in the contract, her coverture ; but not that the plaintiff 
 
 (/) 2 Stra. 1104. Bull. N. P. 172. 
 
 ( J-) III. ibid. '2 Keb. 2'2S. 12 Mod. 
 101. 3 T. R. 627. Ante, 4,'i7. 
 
 (A) 5 Co. 119. 1 Sauiul. 10:3. a. 
 
 li) 1 Ld. Kaym. 87. 1 Salk. 344. 
 Canh. 350. 5 Mod. 170. 12 Mod. 
 67. Com. D!- Pleader, 2. G. 8. 
 
 (.;■) 1 Sti-a. 49S. Com. Dig. Plead- 
 er, 2. G. 7. 
 
 {k) Doug. 649. n. 132. 5 T. R. 24. 
 4 East, 407. 410. 
 
 (/) 29 Car. II. c. 3. 
 
 Im) Com. Dig. Pleader, 2. G. 5<c. 
 and tit. Action Assumpsit, G 
 
 (Ji) 8 T. R. 280. * 
 
 (o) Ld. Raym. 217. 566. 12 Mod. 
 376. 1 Salk." 394. Cora. Dig. Plead- 
 er, 2. G. 10. 15. 
 
 (_/)) S T. R. 263. Co. Lit. 206. s. 
 1 H. Bl. 65. 
 
 (5) 6 Ld. Raym. 566. 12 Mod. 
 376. Tidd's Prac. 4tli edit. 5SS. n. n. 
 
 (r) Vi\i. Abr. Evideuce, z. a. 1 
 Salk. 2S0. Gi!b. C. P. 65. 
 
 (.s) I Ld. Raym. 217. 565. 12 Mod. 
 376. " 
 
 (0 7 T. R. 3D5. Bull. "N P. 15 J, 
 
 I n. & P. 44s
 
 471 OF PLEAS IN BAR IN ASSUMPSIT. 
 
 LiMsumpsit. is co-vert where she would have a right » to join in the action^ 
 which in such case, must in general be pleaded in abatementAw) 
 
 * 472 *So also payment ;(x') accord and satisfaction ;(7y) a promis- 
 
 sory note, or other negotiable secuiity given for the debt, and 
 remaining in the hands of a third person, or otlierwise outstand- 
 ing ;(:r) foreign attachment ;(;/) arbitrament ;(2) former reco- 
 very for the same cause ;(a) a higher security given ;(6) and a 
 release ;(c) may be given in evidence under the plea of non 
 
 Hence it may be collected, that under the general issue, any 
 matter which shews that the piainiiff never had cause of action, 
 may be given in evidence, and also that under that plea most 
 ifriatters in discharge of the action, which shew that at the time 
 of the commencement of the suit the plaintiff liad no subsist- 
 ing cause of action, may be tjken advantage of. As the ob- 
 ject of pleading is to apprize the adverse party of the ground 
 of defence, in order that he may be prepared to contest it, and 
 may not be taken by surprise :(f/) it may appear singular, that 
 under the general issue, which in terms only denies a valid con- 
 tract, the defendant should be permitted to avail himself of a 
 ground of defence which admits a valid contract, but insists 
 that it has been performed, or that there is an excuse for the 
 non-perlbrmance of it, or that it has been discharged ; it is, as 
 
 * 473 observed by Lord HoU^ a practice which has *crept in impro- 
 
 perly, but is now perhaps too settled to be altered. (f) It has 
 been attempted to be justified on the ground that the gist of 
 the action is the fraud of the defendant in not performing the 
 contract, and that, therefore, whatever shews there is no fraud, 
 is properly in issue under the plea of 7ion assumpsit ; but this 
 
 («) 4 T. R. 364. 3 T. R. (}27. (c) 1 L<1. Rayra. 1022. Bac. Abr. 
 
 Ante, \?t7. Arbitrament, G. 
 
 (rO L(1. Rnym. 217. (n) - Su-i<. '33. 1 Snund, 92. n. 2, 
 
 (if) 1 Ld. liaym. 566. 12 ^fo.l. S76. {b) 3 East, 25S. Com. Dig. Plead- 
 
 5 East, 230. 4 Esp. Cas. X. P. 181. er, 2. G. 12. Ante, 96. 
 
 Bac. Abr. tit. Accoid. Com. Dig. tit. (c) 3 Esp. Rep. 234. Dong. 106. 
 
 Accord. Cilb. C. P. 64. 
 
 (a) 5 T. R. 513. Rail. N. P. 1.S2. (,/) Ante, 215. 
 
 Q/) 1 Sa!k. 2S0. I Saimd. 67. a. n. ((>),ia2 Mod. 377. 1^. Raym, SIT. 
 
 3 East, 307. 378. 2 Vcs. jun. 106. 506. 
 Com. Dig. Attachment, A. aad tit. 
 Pleader, 2. G. 5,
 
 OF PLEAS IN BAR IN ASSUMPSIT. 473 
 
 ^oes not uppear to accord with the logical precision which In AssumpcHi. 
 usually pre\aiis in ple:iding-.(/) 
 
 '1 here are, however, some defences which either must or 
 should be pleaded specially ; thus though we have seen that 
 under the general issue it may be given in evidence, that at 
 the time the contract w'as made, the plaintiff was an alien ene- 
 my :{g) yet if the disability accrued by war after the contract 
 was made, the same should be pleaded specially. (A) So out- 
 lawry of the plaintiff nmst be pleaded in abatement, if tho 
 cause of action be not forfeited, (?) and the defendant must 
 plead that he is a certificated bankrupt,(^') or a discharged in- 
 solvent debtor. (X) So a tender,{/) a set-off,(w) and the statute 
 of limitatiofis,(?0 cannot be given in evidence under the gene- 
 ral issue, though in an action of assumimU unless *the subject ^ 474 
 matter of set-off accrued by reason of a penalty contained in a 
 bond, or specialty, the defendant has the option of pleading * 
 
 ©r givhig notice of set-off.(o) With respect to the defences 
 under the courts of conscience acts, some must be pleaded ; 
 others may either be pleaded or given in evidence under the 
 general issue ; and others must be taken advantage of by en- 
 tering a suggestion wliich may be traversed or demurred 
 to.(/?) 
 
 The defendant is at liberty to plead any matter which does 
 rtot amount to the general issue, and which admits that in fact 
 a contract was made, but insists that it was void or voidable 
 either on account of the defendant's infancy,(5') lunacy, cover- 
 
 (/) Gilb. C. P. 65. 3 V,\. Com. (/) See the precedent, post, vol 
 
 305,306. Ante, 465, 406. 468. 2.431. 1 Saund. 33. n. 2. 
 
 (^') Ante, 470. (m) Sec tlie precedents, post, vol. 
 
 {h) See the precedent, post, vol. 2. 2. 440 to 448. 2 Geo. II. c. 22. s. Ift 
 
 +25, 4-26. 8 T. R. 166. 6 T. R. 24. 8 Geo. II. c. 24. 
 
 1 B. & P. 222. 2 B. & P. 72. 2 BI. {ii) See the precedents, post, vok 
 
 Rep. 1326. 4E!»st, 504. &c. 2.449,450. 1 Saund. 2S3. n. 2. S 
 
 0) Com. Dig. Pleader, 2. G. 4. Saund. 63. b. c. 1 Selwjn, N. P. 120, 
 
 (./) See the precedents, post, vol. note 74. 
 
 2.426. 5 Geo. II. c. 30. s. 7. 4 T. (o) Montagu's Law of Set-ofi", iO fs 
 
 R. 156. 1 P. Wms. 258, 259. 10 47. 
 
 Mod. 160.247. 1 B. k P. 467. 3 B. {p) See the precedent, post, vol. 
 
 &P. 171. 6T. R. 496. , 2. 44S. Tidd's Prac. 4th edit. 859, 
 
 {h) See tlie precedent, post, vol. 860. 3 T. R. 452. 
 
 l. 430. Com Dig. Pleader, 2. <i. 16. (7) See the precedent, pet, vol- 
 
 2. 424.
 
 474 OF PLEAS IN BAR IN ASSUMPSIT. 
 
 Jly Jlmimpsit. ture.(r) duress, See. or, that the plaintiff was an alien enemy 
 at the time the contract was made ;(«) or for want of sufficient 
 consideration ; or on account of illegality therein, or in the 
 act to be done ; as usury, gaming, &c. or because the contract 
 was void under the statute against frauds. (0 So a release be- 
 fore breach,(u) and performance(-y) or payment(w) may be 
 pleaded ; though we have seen that all these matters may be 
 given in evidence under the general issue. So all matters in 
 discharge of the action may be pleaded specially. If the plain- 
 tiff's bankruptcy, which we have seen may be given in evi- 
 
 * 475 dence under the general issue, be pleaded *specially, all the 
 
 circumstances shewing the sufficiency of the proceedings un- 
 der the bankruptcy must be stated in the plea.(jr) Accord 
 and satisfaction, ((/) foreign attachment, release,(z) arbitra- 
 ment, («) former rccovery,(6) or that a negotiable or higher 
 security was given for the debt,(f) are seldom pleaded unless 
 for the purpose of delay, but it is usual to plead coverture ; 
 and it is in general advisable to plead infancy specially, be- 
 cause the plaintiff will 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, kc. 
 were necessaries, or that he confirmed the contract when he 
 came of age ; on cither 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 is often more ad- 
 visable to plead a set-off than to give notice of it, for if plead- 
 ed the plaintiff cannot reply double, but must rely on one an- 
 swer alone, and in a country cause by pleading it, the trouble 
 and expense of proving the service of the notice may be 
 
 (r) See the precedent, post^ vol. (v) Sec the precetlent, post, vol. 
 
 2. 4'25. 2. 434. 
 
 (s) Doug. 649. (z) Com. Disj. Pleader, 2. G. 14. 
 
 (?) 1 AVils. 305. Post, vol. 2. 439. 
 
 (i<) Com. Dig. Pleader, 2. G. 13, («) See the precedent, post, vol- 
 
 14. 2. 436. 
 
 (ti) Com. Di;^. Pleader, 2. G. 15. (6) See the precedent, post, vol. 
 
 \^u) 1 Sulk. 394. Ld.Raym. 787. 2. 438. 
 
 Com. Dig. Pleader, 2. G. 10. .(c) See the precedents, post, vol. 
 
 (x) 1 Ld. Uayra. 217. 566. 12 2. 434, 435, 436. 
 Mod. 376. 1 li.'Si P. 448. 7 T. li. 
 3fl6.
 
 OF PLEAS IN BAR IN DEBT. 475 
 
 saved. Indeed the principal use of a special plea, is that in Jn Assumimt. 
 general it narrows the evidence to be adduced on the trial. 
 
 The action of debt wc have seen is, 1st. On simple con- /« D^bt. 
 tracts and legal liabilities ; 2dly. On specialties ; 3dly. On re- 
 cords ; and 4thly. On statutes. 
 
 *In del)t on simjile contract or legal liabilities, as for an es- * 476 
 cape, Scc.(<i) the general issue is nil debet ; " that the dcfend- 
 «' ant doth not owe the said sum above demanded, or any /lart 
 " thereof, in tiianner and form as the ^ilaintiff hath above com- 
 '• Jdained against him "(c) or in the case of executors or ad- 
 ministrators " doth not detain," and if non assumpsit be plead- 
 ed, the plaintiff may sign judgment.(/) The language of 
 this plea puts in issue the existence of the debt at the time of 
 bringing the action, and consequently any matter may be given 
 in evidence under this plea, ^hich shews that nothing was due 
 at that time, as performance or a release, or other matter in 
 discharge of the action.(^) It has even been held that as the 
 plea of 77il debet is in the present tense, the statute of limita- 
 tions may be given in evidence under the general issue ;(/i) 
 but this doctrine seems questionable, and the practice is to 
 plead the statute in debt as well as assiim/isil,{i) and a tender 
 must be pleaded specially •,(j) and a set-off iiiust, as in as- 
 sian/isit, be either pleaded or notice thereof given. 
 
 In debt on a s/iecialty there is a material distinction *between ^- ^.y-^ 
 those cases in which the deed is only inducement to the action 
 and matter of fact the foundation of it, and those in which 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 has declared setting out the inden- 
 
 (d) Salk. 565. I Saund. 38. 2il edit. 271. Mr. J. Lavrenct's opi- 
 
 (e) See the precedent, post, vol. nion in 2 East, 336. has been consi- 
 2. 459. dered as supporting the decisiou in 
 
 (_/) 6 East, 549. Bac. Abr. Pleas, I. 1 Ld. Rajm. 153. but note, his obser- 
 
 (j) Cora. Dig. Pleader, t>. W. 16. vation applied only to penal actions, 
 
 1 Ld. Raym. 566. .394. 12 Mod. 376. in which the statute may be given in 
 
 mcr. Gilb. Debt, 454. 443. semb. contr. evidence under the general issu^" 
 
 (/i) 1 Salk. 278. 1 Ld. Raym. 153. 2 Saund. 63. b. c. n. 6. See the pre ce- 
 
 1 Saund. 283. n. 2. Com. Dig. Plead- dcjit, post, vol.2. 471. 
 er, 2. W. 16. 2 Saund. 63. a. (./) See the precedent, post, vol 
 
 (0 1 Saund. 283. n. 2. 2 Saund. 2. 4G9. 
 63. n. 6. Puake's Law of Evidence,
 
 ■*- 478 
 
 477 OF PLEAS IN BAR IN DEBT. 
 
 In Debt. tiire, yet as the fact of the subsecjuent occupation gives the 
 
 right to the sum demanded, and is the inundation of the action, 
 and the lease is mere inducement, the defendant may plead nil 
 debet :{k) and for the same reason this plea is pi'oper in debt 
 for an escape, (/) or on a devastavit against an executor :(wO 
 the judgment in these actions being merely inducement, and 
 the escape or devastavit the foundation of the action. (w) The 
 plea of nil debet in these cases puts the plaintifT on proof of the 
 \vhole of the allegations in the declaration, and under it he may 
 give in evidence an eviction. (o) payment, or a release, See. as 
 on a plea of nil debet to debt on simple contract ; but in debt 
 for rent on an indenture of lease, the defendant cannot, under 
 the plea of nil debet, give in evidence that the plaintiff had no 
 estate in the tenements ; because if he had pleaded that spe- 
 cially, the plaintiff might have replied the indenture, and estop- 
 ped him.(/0 In debt for rent on a parol lease, non dimisit may 
 be pleaded,((7) but not in debt for rent on an indenture. (?) *And 
 rien en arjcre, it is said, is not a suflRcient plea, without con- 
 cluding and issent nil debet ;(«) and it is optional in the defend- 
 ant either to /dead an eviction, or to give it in evidence upon Jii' 
 debet, though in covenant he must plead it.vO 
 
 When the deed is the foundation of the action, although ex- 
 tnnsic facts are mixed with it, the defendant must plead non 
 est factum^ and nil debet is not a sufficient plea :(w) as in debt for 
 a penalty on articles of agreement,(t^) or on a bail-bond,(w) or 
 on a bond setting out the condition and breach. (x) And if in 
 ihese cases nil debet be pleaded, the plahuiff should demur, for 
 
 (A ) Gilb. C. P. 6t2. L(l. Eaym. (?•) Id. 436. 
 
 1500. I New ReT>. 104. I S.niind. (s) Id. 440. cites Bro. tit. Debt, 113. 
 
 276. n. 1. 2. 202. 211. 2 Saund. 29'. Keilw. 153. But see Cowp. 5SS. and 
 
 n. 1. the precedent, post, vol. 2. 486 
 
 (?) 2 Sa!k. 555. 1 Saund. 38, n. 3. (/) I Saund. 204. n. 2. See thepre-^ 
 
 {m) 1 Saund. 219. Carth. 2. cedent, i)0.st, vol. 2. 486. 
 
 (h) Id. ibid. Cora. Dig. Pleader, 2. {%i) 1 Saund. 38. n. 3. 2 Saund. 
 
 W. 16. .3 Saund. 344. n. 2. 1 Saund. 18". a. 2 Ld. Raym. 1500. The in. 
 
 SIS. n. 4. 2!9. n. 7. stance of debt for rent seems to be an 
 
 (o) 1 Sauud. 204. n. 2. exception. 
 
 (/)) 1 Salk.277. 8 T. R. 487. From (r) Id. ibid. 2Ld. Raym. 1500. 2 
 
 the case in 5 T. R. 4. 2 Wils. 208. Stra. 778. 1 Barnard. K. B. 15. 8- 
 
 213. it appears that the tenant is es- Mod. 106. 323.382. 
 
 topped from di.sputing the title, (w) Id. ibid. Fortes. 363. 367. ^ 
 
 though the demise was by pai'ol. Saund. 187. a. 
 
 (7) Gilb. Debt, 438. (x) 2 Saund. 187. a, a. S.
 
 OF PLEAS IN BAR IN DEBT. 478 
 
 if he do not, he will have to prove every allegation in his dechi- In Debt. 
 ration, and the defendant will be at liberty to avail himself of any 
 ground of defence which in general may be taken advantage of 
 under the latter plea.Ci/) 
 
 In debt on bond or other s/iecialtijf wlien the deed is the foun- 
 dation of the action, the pica o'i non cut factum is proper, either 
 when the plaintiff's firofert cannot be proved as stated, (z) or 
 the deed was not executed or not duly stamped, (a) or varies 
 from the declaration, (<!') but he must plead in abatement that 
 another co-obligor *ought to be joined, (c/) And the defendant * 479 
 may give in evidence under the plea of non eat factum^ that the 
 deed was deliver^l to a third person as an escrow., (though it 
 is more usual to plead the fact,)(<°) or that it was void at com- 
 mon law ab initio ;(/") as that it was obtained by fraud, (,§•) or 
 made by a married ivoman.,{^h) or a lunatic, Scc.O) or that it be- 
 came void after it was made, and before the commencement of 
 the action, (y) by erasure, alteration, addition, Scc.C^) But mat- 
 ter which shews that the deed was merely voidahlcQ) on account 
 of infancy(7?i) or duress, (n) or that it was -void by act of par Ha- 
 mcnt{o) in respect of usury,(/2) gaming, &.c.(7) or that a bail- 
 bond was not made according to the 23 Htn. VI. c. 9. must in 
 general be pleaded ; in the case of a bail-bond indeed, if it ap- 
 
 (^) 5 Esp. Rep. 38. 2 Saund. 18". (_/) 5 Co. 119. b. ace. S;iv. 71. 
 
 a. n. 2. 
 
 semb. contr. 
 
 (r) 4 East, 5S5. Com. Dig. Plead- (^-) 5 Co. 23. 119. b. Bull. X. P. 
 
 er, 2W. 18. 172. Co. Lit. 35. b. n. 6,7.225.1' 
 
 (,0 6T. R. 317. 11 Co. 27, 2S. 
 
 (6) Com. Dig. Pleader, 2 W. IS. (/) 5 Co. 119. a. Gilb. Debt, 437. 
 
 2 Stra. 1104. 2 Salk, 675. 1 Ld. Raym. 315. 
 
 ((/) Ante, 29. Co. Lit. 283. a. ('«) 1 Salk. 279. 3 Burr. 1805. 
 
 {e) See the pj^ecedent, r)0^t, yo\. 2. 1794. 2 lust. 483. Post, vol. 2. 460. 
 
 452. 4Esp. Rep. 255. 6 Mod. 217. (?0 5 Co. 119. a. 2 Inst. 482,483. 
 
 1 Sid. 450. 1 Salk. 274. 2 Roll. .\l!i-. Com. Dig. Pleader, 2 W. J 9, 20. Lac. 
 
 f)S3. T. Raym. 197. Com. Dig. Abr. Pleader, G. 3. tit. Duress, D. 
 
 Pleader, 2 \v' 18. 4 East, 94. Bull. N. P. 171. 9 Vin. 322. 2 Saiind. 
 
 (/)5Co. 119. 2Wiis. 341. 3i7. 155. ii. 4. Post, vol. 2. 404. 
 
 l^) See the precedent, post, vol. 2." (o) 5 Co. 119. a. 2 Saund. 155. a- 
 
 464. n. 4. 
 
 {h) Com. Dig. Pleader, 2 W. 18. {p) 1 Str.-j. 4nS. Com. Dig. Plead- 
 
 12 Mod. 101. 2 Kcb. 2:8. 2 Stra. er, 2 W. 23. Post, vol. 2. 4.67. 
 
 1104. (?) Cora. Dig. Pleader, 2 W. 26. 
 
 (/■) Slra. 1 104. 2 Salk. 675. 4 Co. 
 123. Ld. Raym. 315. Ante. 
 
 Vol. I. [ 44 ]
 
 479 OF PLEAS IN BAR IN DEBT, 
 
 In Debt. pear upon the face of tlie dcclartition that the bond has beetv 
 
 made contrary to the provisions of the statute, the defendant 
 
 * 430 may demur or move in arrest of judgment *after verdict upon 
 
 a plea of non e&t. factum ;(r) but a specialty cannot in general 
 be avoided by usury Sec. appearing merely in evidence, or on 
 the fa( e of the condiiion, but the facts must be pleaded specially, 
 and the defendant cannot demur. (s) The defendant must also 
 plead specially payment of a bond, kc. either on or afier(0 the 
 day, and wheie no interest has been paid on the bond after the 
 time mentioned in the condiiion, and there is no other circum- 
 stance to netj;ative the presumption of payment on that day, ari- 
 sing- from twenty years having elapsed, then the plea may be 
 solvit ad diem, but otherwise it should be solvit post ditm.{u) 
 So performance, or any matter in excuse of it, as non damniji' 
 catu.'i to a bond of indemnity ;(t') no award to an arbitration- 
 bond, or to a bail-bond, no process to arrest the defendanti 
 Scc.Cw) and matters in discharge of the action, as a tender, set- 
 olf,(x) accord and satisfaction, former recovery, release, and fo- 
 reign attatchment,(r) must be pleaded in this action. 
 
 In del)t or scire facias on a record, when the record is the 
 foundation of the action and not merely inducement, the plea 
 of nil debet is insuRicient,(fl) and nul tiel record is the proper 
 
 ^ 481 plea where *tbere is either no record, or where there is a va- 
 riance in the statement of it ;(6) but as this plea merely puts 
 ill issue the existence of the record as stated, any matter in 
 discharge must be pleaded, such as payment, which is given 
 by the 4th .'hin. c. 16. and accord and satisfaction is not a suf- 
 ficient plea;(cl and as it is a maxim in law, that there can be 
 
 (r) I Sauud. I6l.n. 1. -2. T. R. iTioncy bond, 8cc. See 7 East, 150. 
 
 569. * Sauiul. 60. n. 3. Com. Dig. Accord and Satisfaction.: 
 
 (s) 1 Saund. 295. b. (;) 1 Sauiul. 67. 1. a. n. 1. Co. 
 
 (0 4 Ann. c. 16. Post, vol. 2. 474. |:nt. 139. b. 142. a. Lib. Plac. IGO. 
 
 (v/) 1 Stra. 653. And see Rep. pi. 11.3. 2 Lib. Intrat. 164. 2 Show, 
 
 temp. Hardw. 133. as to these pleas 374. 3 East, 378. 
 in ge-.iei-al. (a) xVnte, 47S. 2 Saiind. 344. 1 
 
 (t>) 1 B. k P. 640. n. a. Post, vol. 2. Saund. 21. 1 East, 372. 
 480, 4Sl. {h) Com. Dig. Pleader, 2 W. 13. & 
 
 (w) Say. 116. tit. Record, C. Stra. 1171. 1 Saund. 
 
 (x) 8 Geo. II. c. 24. s. 5. Bull. N. 'J2. n. 3. Gilb. Debt, 444. 3 Mod. 41. 
 P. 179. Willes, 202, 2:3. (c) 3 East, 251. 7 East, 150. 
 
 {y) This is iw plea to debt on a
 
 OF PLEAS IN BAR IN DEBT. 481 
 
 rw) averment in pleading against the validity of a record, though In Debt. 
 there may be against its operation, thereiore no niaticr oi de- 
 fence can be pleaded which existed anicrior to the recovery of 
 the judgnient^c/, but the dct'ciidani may plead a release, (c) or 
 that tlie debt was levied by a Ji fa.{f) or elcgii/^.^) or ca. .',a.{h) 
 An executor may plead filcne adminisitvaxnt s{i) or to debt on a 
 judgment suggesting a divusiavit^ he nuiy plead not guilty, (y) 
 and a discharge under the lords' act, is an efieciual bar to an 
 action of debt on a judgment. (X-) The pleadings in debt or 
 scire facias on a recognisance of bail have already been suf- 
 ficiently pointed out.(/) 
 
 In debt upon ulatutc, nil debet, is the proper plea, though not 
 guilty would in some cases suffice. (?«) The statute of iimi'.u- 
 tions may in *such action be given in evidence u:ider the *• 482 
 
 general issue ;(w)but a former recovery by another person can- 
 not.(o) 
 
 In COVENANT there is strictly no general issue, for the plea In Cove:iani. 
 ©f non est factum^ only puts the deed in issue as in debt on a spe- 
 eialty,( }i) and not the breach of covenant or any other matter 
 of defence ; and the plea of noji infregit conventionem is bud on 
 demurrer, though it would be aided after verdict,(9) and rien 
 in arrere is also a bad plea in this action.(r) The defendant.must 
 therefore plead specially every matter which it would be neces- 
 -sarv to plead in debt on a bond or other specialty, (.v) as that the 
 deed was voidable by infancy, or illegality of the consideration ; 
 however, under the plea of «'>?j est factum^ the defendant may on 
 the trial avail himself of a variance in the statement of the deed,(/) 
 and if the plaintiff omit to state a condition precedent, the de- 
 fendant may crave oj/cr, and set out the deed and demur.(?0 In an 
 
 {(V) -\nte, 354. Com. Dip:. Pleafler, 2 S. It. \7. See 
 
 (e) Bac. Abr. tit. Release. the precedent, post, vol. 2. 4j9. 
 
 (■/) 4 Leon. 194. Sav. 123. Cro. (h) -2 Samul. 63. b. 2 Fkst, 33fi. 
 
 Car. 328. Clift. 075. (o) I Stra. "01. Cac. .\br. Action 
 
 (^) Uyer, 299. b. 1 Lev. 92. cjui tarn, U. See the precedents, post, 
 
 (A) Oir. Biev. 300. 1 Salk. 271. vol. 2. 491. 
 
 Lutw. 641. (/») Ante, 478, 479. 
 
 (0 I L(l. Raym. 3. 4 Mod. 296. (7)8 T. R. 278. 1 Lrr. 183. ,S 
 
 J5alk. 296. Skin. 565. 3 East, 2. Lev. 19. 1 Sid. 289. Com. lYig. 
 
 (./) 1 T. R.46-'. 1021, 1022. PlcaHer, 2 V. 5. 
 
 (h) 32 Ceo. IL c. 28. s. 20. (c) Cowp. 5SS. Post, vol. 2. 486. 
 
 (/) Tidd's Prac. 3d edit. 1044. 4th (.s) Cora. Dig. Pleader, 2 V. 4. kc. 
 
 edit. 1021, 1022. (/) 9 East, 188. Stra. 1146. 
 
 \m) I T. U. 462. Bac. Abr. Pleas, L (u) Com. Dig. Pleader, 2 V. S, 4;
 
 482 
 
 OF PLEAS IN BAR IN COVENANT. 
 
 Jn Curcnant. action of covenant upon a lease, for the Ureach of a covenant 
 running Avith the Jand, if the plaintiff claim as heir, devisee, 
 or assignee, Sec. of the lessor, the defendant may traverse the 
 derivative title of the plaintiff, 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 seised, Sec. of a 
 
 * 483 *different estate from that stated in the declaration, and there- 
 
 by shew that the derivative title of the plaintiff does not exist ; 
 but the defendant is estopped from denying generally, that the 
 lessor was seised as staled in the declaration ;(0 the defendant 
 must also plead specially performance of the covenant ;(zi) or 
 excuse of performance, as by eviction, (p) or by non-perform- 
 ance by the plainiifi' of a condition precedent, (w) or by a sur- 
 render of the lease, Scc.Ci) or admitting the breach, the defend- 
 ant must plead specially that he is discharged ;(?/) as by hig 
 bankruptcy, if the action be for a money demand due before 
 the act of bankruptcy,(z) or by accord and satisfaction, arbitra- 
 rnent,(a) former recovery, foreign attachment, set-off, release, 
 Scc.(^') 
 In Account. In an action of account, there is no general issue- The 
 defendant may plead infancy,(c) and when sued as bailiff or 
 receiver in fact, he may plead that he was not bailiff, or re^ 
 ceiver ;(f/) but when sued as tenant in common, under the 
 statute 4 .inn. c. 16. if the declaration be pioperly framed, a 
 plea that the defendant is not bailifi' or receiver, would be in- 
 
 * 484 sufficient ;(c) and if the *dcfendant means to deny the plaintiff's 
 
 claim, he should traverse the tenancy in common. The de- 
 fendant may also plead that he hath accounted, or a release, ar- 
 bitrament, bond given in salisfacdon, and the statute of limita- 
 tions ;{/) but other matters, which admit that the defendant was 
 
 (0 8T. R. 4S7. 2 Stra. 81". 2 
 Saund.207. 418. 1 Xew Hep. 160. 
 See the precedents, post, vol. 2, 500. 
 
 (;0 Com. Dig. Pleader, 2 V. 13. 
 Bull. N. P. 165. 1 B. & P. 640. Sec 
 the precedents, post, vol. 2. 496. 
 
 (t-) 1 Sauml. 204. n. 2. 2 Saund. 
 176. 2 East, 576. Post, vol. 2. 486. 
 
 (7f) S T. R. 3C6. Pobt, vol. 2. 484, 
 485. 
 
 (a-) 1 Saund. 235. 
 
 (?/) Com. Dig. Pleader, 2 V. S. 
 
 (2) 4 T. R. 155. 
 
 1 Saund. 
 
 24; 
 
 I. n. 6, 
 
 (c) 9 Co. 79. 
 
 Com. Dig. 
 
 Pie 
 
 :ader. 
 
 2 y. 8, 9. 
 
 
 
 
 {b) Com. Dig. 
 
 Pleader, 2 
 
 y. 
 
 8. &c, 
 
 Ante, 480. 
 
 
 
 
 (c) Bac. Abr. Accompt, 
 
 E. 
 
 Com. 
 
 Dig-. Accomi)t, E, 
 
 , 5. 
 
 
 
 Id) Id. ibid. 
 
 
 
 
 \e) Wilies, 208 
 
 
 
 
 (./■) Biic. Abr. 
 
 Accompt, 
 
 , E. 
 
 Com. 
 
 Dig. Accorapt, E, 
 
 , 4, 5, 6. 
 

 
 OF PLEAS IN BAR, Sec. 484 
 
 once chargeable and accountable, cannot in general be pleaded in Account. 
 
 in bar to the action, but must be pleuded bcibie the auditors. (,§•) 
 
 In DETINUE the general issue is, non dctinet^^h) which puts in in Detinue. 
 
 issue the facts of the pluinlifT's property or possession, and the ^ 
 
 defendant's withholding the chattels ; but under tiiia plea the 
 
 defendant cannot shew that the goods or other chattels wcvt 
 
 pledged to him, but must plead it specially ; he may, however, 
 
 give in evidence a gift from the plaintiff or any other fuct to 
 
 prove that the property in the chattels is not the plaintiff 's.(/) 
 
 In each of these actions, when brouglit by -An executor or ad- By or agRinst 
 
 ... executors, Sec. 
 
 miniatrafor, the defendant may not only avail hmiself of either of 
 
 the before-mentioned defences, but may in some cases deny the 
 plaintiff's representative character. Where letters of adininis- 
 ' tration have been obtained in an inferior diocese, the defendant 
 may plead in bar that there were bojia notabilia, or may give that 
 fact in evidence under the plea of ne unrjues executor. C^) In an 
 action against an executor or administrator,(/(-) the defendant 
 may in addition to any *of the before-mentioned defences plead * 485 
 
 lie unques executor,(/) or administraior,(7/?) or thi.t no i-ssets 
 have come to his hands,(«) and he must plead specially, JJcne 
 administravit^ ov /dene adniifiistravit /irxtcr^a sum not sufficient 
 to satisfy debts of liigher nature, as bonds outstanding, or judg- 
 ments recovered against the deceased, or the defendant, by 
 third persons, (o) or filene adminlstravit except a sum ready to 
 be paid to the plaintiff ;(/«) and the defendant cannot avuil him- 
 self of either of those defences, under the general issue ;(<;) 
 but under the general plea o^ fdtmc adinmintravit^ an executor 
 or administrator may give in evidence a retainer for a debt 
 due to himself, though it is in general advisable to plead liXr 
 Where the executor or administrator has no ground on which 
 
 ( ^'O III- >'»'''• 3 Wils. 73. (m) I'ost, vol. 2. 451. Com. Dig, 
 
 (//) See tlicform, post, vol. 2. 405. Pleader, 2 D. 7. 13. 
 
 (i) Co. Lit 2S3. a. See the several {n) Com. Dig. Pleader, 2 D. 7. 
 
 pleiis. Com. Dig. Pleader, 2 X. 3. (o) 1 Sauiui. 330 to 536. in notis. 
 
 (./) 1 Saund.274. n.3. Com. Dig;. Pleader, 2 D. 9. Post 
 
 (A) .See the pleadings in general, vol. 2. 451 to 458. 
 
 Com. Dig. Pleader, 2 D. 2. {j>) Post, vol. 2. 452. 
 
 (/) Com. Dig. Pleader, 2 D. 7. \q) Co. Lit. 283. a. 
 
 Post, vol. 2. 450. (r) Co. Lit. 283. a. 1 Sauiid. 333. 
 
 n. 6. Post, vol. 2. 452.
 
 485 OF PLEAS IK BAR, &c. 
 
 By or against to dispute the pldntiff's debt, it is in general advisable not te 
 
 an executor, j„„. i. r \ 
 ^p deny liXs) 
 
 ,flgainst an jj, q^ action aerainst an heir or dcvisec,(t) the defendent may 
 
 heir or devi' ' _ , ^ ' ' 
 
 see. not only plead uny matter which might have been pleaded by 
 
 the ancestor or devisor, but may also either deny the character 
 in which he is sued, or, admitting it, may plead that he has 
 nothing by descent or by devise, either generally(?/) or specially, 
 viz. that he has nothing but a reversion after an estate for life 
 
 * 486 or years,(i') *or that he has paid debts of an equal or superior 
 degree, to the amount of the assets descended or devised, or 
 that he retains the assets to satisfy his own debt, of equal or 
 superior degree, or debts of a superior degree, due to third 
 persons. (?f) The heir, if an infant, may also pray that the pa- 
 rol may demur, till he is of full age.(T') 
 
 In case. The general issue in an action on the case, is " that the dc- 
 
 '■'■ fcndant is not guilty of the firemises" {or " grievances,") 
 " aOove laid to his charge, in manner and form as the said Jilainfff 
 " hath above thereof comfilained against him, and of this he fiut» 
 ^'- himself iipon tlie country" &,c. \n trespass \\. is similar, except 
 that the word '■'■force" is substituted for " wrong" in the com- 
 mcncem.ent, and " trcs/iafises," for '^premises" or '■^grievances.'* 
 It was held by Lord Munsfield^[w) that " there is an essen- 
 "tial difference between actions of trespass, and actions on the 
 " case. The former are actions stricti juris, and therefore a 
 " former recovery, release or satisfaction, cannot be given in evi- 
 " dence, but \-n\x%lhcJdeaded ; but an action on the case is found- 
 "ed upon the mere justice and conscience of the plainiifl"'s case, 
 " and in the nature of a bid in equity, and in effect is so ; and 
 «' therefore a former recovery, release or satisfaction, need not 
 '* be pleaded, but i^ay be given in evidence ; for whatever will 
 " in equity and conscience, according to the existing circumstan- 
 " ces, preclude the plaiiitiff from recovering, may, in case, be 
 " be given in evidence by the defendant, because the plaintiff 
 
 (.t) 2 B?. Rep. V175. Post, vol. 2, (^^) Com. Dig. Pleader, 2 E. 3. 
 
 451. n. («)• (f) Com. Dig. Pleader, 2 E. 3. 
 
 {t) hee the pleadings in general. Po^t, vol. 2. 472. 
 
 Com. Diij. Pleader, 2 P-. (w) 3 Buix. 1.353. 1 BI. Rep. 388. 
 
 {u) Com. Dig. Pleader, 2 E. 3. S. C. I Wils. 45. 2 Saund. 155. a^ 
 
 Post, vtl. 2. i73. n. 4. Sed qusere the gi-c^nd of ^e* 
 
 (y) Com. Di^. Pleader, 2 E. 3. struction.
 
 OF PLEAS IN BAR IN CASE. ^4,^1 
 
 *' *must recover upon the justice and conscience of his casCi ■'" casve. 
 " and on that only." In an action therefore on the case, under the 
 pleu of not guilty, the defendant may not only put the plaintiff 
 upon proof of the whole charge, contained in the declaration, 
 but may give in evidence any justification or excuse of it, or 
 shew a former recovery, release, or satisfaction ;(?/) thus in an 
 action for a malicious indictment, or arrest in a civil action, the 
 defendant may, under the general issue shew that there was 
 sufficient or probable cause for the proceeding complained 
 of;(z) so in case for obstructing ancient lights, a custom of 
 London to build on an ancient fouudaiion to any height, may be 
 given in evidence by the defendant ;(a) and though a li cense 
 must be pleaded in trespass, yet it is the practice to admit it 
 in evidence in an action on the case. (A) But in an action for 
 words, or a libel, the defendant cannot, under the general issue, 
 give in evidence the truth of the words, even in mitigation of 
 damages, but must justify specially,(f) which plea should not 
 in general be put on the record, unless the defendant be satis- 
 fied that he can support it in evidence, because if pleaded un- 
 successfully, it would probably materially increase the damages, 
 though it would not make any difference in the costs. (c/) But 
 where the defence is, that the libel or words were *published ^ 4.RS 
 
 •r spoken not in the malicious sense imputed by the declara- 
 tion, but in an innocent sense, or upon an occasion which war- 
 ranted the publication, this may be given in evidence under the 
 general issue, because it proves that the defendant is not guilty 
 «f the malicious slander charged in the declaration ; as if the 
 words were spoken by the defendant as counsel, and were per- 
 tinent to the matter in question,(f/_) or were written or spoken 
 in confidence, and without malice, as when a master honestly 
 and fairly gives the character of a servant, to one who asks his 
 
 (y) Id. ibid. 2 Mod. 2rO. S Mod. 20. 2 Stra. 1900. I B. & P. 525. e 
 
 166. Com. Rep. 273. 1 Wils. 44. B. 6i P. 225. n. a. 1 T. R. 748. Com. 
 
 175. 2 Saund. 155. &, Dig. Pleader, 2 L. Sclwjn, N. P. 
 
 (i) 3 MfHl. 1G6. 929. 106R. 
 
 (a) 1 Com. Rep. 273. I Wils. 45. {d) 4 East, 567. 
 
 VIS. 2 Mod. 274. (</) 1 Saund. 130. n. 1. Cro. Jat-. 
 
 (b) 8 East, 308. 2 Mod. 6, 7. 90. Popli. 69. Selwyn, N. P. 929. 
 (r) .See the precedents, post, vol. 2. ItftjC. 
 
 ^3 to 506. 1 Saund. 130, n. 1 AV illes,
 
 488 OF PLEAS IN BAR IN CASE. 
 
 In cast. character, under pretence of hiring him ]{e) or if the words 
 
 were innocently read as a story out of a history,(y) or were 
 spoken through concern, or in u sense not defamatory •,(g) 
 the defendant may plead these matters ; but it is now more 
 usual to give them in evidence under the general issue.(/f) It 
 is proper, however, to plead specially that the defendant only re- 
 peated the slander uttered originally by a third person. (?) By 
 the statute 8 and 9 JVm. III. c. 27. s 6. was enacted, that no 
 retaking on fresh pursuit shall be given in evidence on the trial 
 of any issue, in any action of escape, agahist the marshal, 8cc. 
 unless the same shall be specially pleaded, nor shall any special 
 plea be received or allowed, unless oath be first made in writing 
 by the defendant, and filed in the proper office, that the prison- 
 
 * 489 er for whose escape such action is brought, did *escape without 
 his consent, privity, or knowledge. (/) In general when the de- 
 fence consists of matter of law, though the defendant is at liber- 
 ty to give the matter in evidence under the general issue, ho 
 may plead it specially ;(J) and this is frequently advisable when 
 there is no fact disputed, but only a point of law, which may be 
 decided upon demurrer or on a writ of error, or where the plain- 
 tiff i)y his replication, Avould be compelled to omit one or more 
 material facts in the plea, and would not be at liberty to reply 
 dc injuria., and consequently the defendant's proof rendered less 
 difficult ',{k) thus in trover for a dog, the defendant may plead 
 that E F was seised in fee and lord of a certain manor, and that 
 he, by warrant, appointed the defendant game- keeper, and that 
 such warrant was duly entered with the 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, wherefore the defend- 
 ant took him, Sec. to which plea the plaindff could not reply 
 Ue injuria., generally, bccuuse that would put in issue the seisin 
 
 (r) Bull. X. P. S. 1 T. R. 110. 1 (0 2 T. R. 126. ?, Salk. 150. 
 
 B. k P. 5'25. (j) 2 :SIocI. '274. 276. 3 Mod. 166. 
 
 (/)Cro. Jac. 91. , Com. Rep. 273. 1 Wils. 44. 175. 
 
 (^) 4 Co. 1-2. b. Popli. 66. S. C. Doct. Plac. 203. Cro. Eliz. 871. 
 
 (/;) 1 Saiind. 130. n. 1. (/o) 2 IMod. 277. 1 Slra. 5. 1 B- 
 
 (/)7T. R. 17. 2 East, 426. Post, & P. 80. Cro. Eliz. 539. 1 East, 
 
 vol. 2. 506. and see anxjther instance 217. 
 ■whei-e a sjjccial plea may be advisa- 
 ble. 1 B. & P, 523.
 
 OF PLEAS TN BAR IN CASE. 4S9 
 
 in feCi and the warrant. (/) So in cuse for an injury to a right i'^ <:ase. 
 
 of common, the defendant may i)iead 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 materiaily 
 
 lessen the evidence, which he would otherwise have to adduce 
 
 on the trial.(n2) * I'he statute of limitations is not guilty with- ^^^ 
 
 in two years, in an action for verbal slander, actionable in it- 
 
 seif^hi) or within six years in any oiher action on the case ;(o) 
 
 as for criminal conversation, or debauching a daughter, kc.(/;) 
 
 and the statute must in this action be specially pleaded. (y) 
 
 In THOVER the general issue is /zc/^^'-wV/'j/, and itis not usual In trover. 
 
 in this action to plead any other plea, except the slalute of 
 
 limitations, and a release, and the bankruptcy of the piamiiiT 
 
 may be given in evidence under the general issue. (r) Tlie 
 
 defendant, however, is at liberty to plead specially any thing 
 
 which admits the property in the plainiiff, and the conversion^ 
 
 but justifies the latter ;(.s) also the statute of liniitations,(<') and 
 
 a former recovery, 8cc.(«) but the bankruptcy oi the plaintiff 
 
 ought not to be pleaded. (t^) 
 
 The general issue in ueplevin is nori cepA ri\(,do et Jlrma^ Of ayr-frit"', 
 
 . i^c. in replt' 
 
 by which the defendant puts m issue, not only the takmg, but vi«. 
 
 also the taking in the place mentioned in the deciaiation.(jy) 
 
 But the defendant cannot have a return of the cuttle under this 
 
 plea, and therefore if he want a return he should plead that he 
 
 took the cattle in some other place, describing it, and traverse 
 
 the place laid in the declaration, and in order to have return, 
 
 should *avow or make cognisance, stating the cause for ^ ^gi 
 
 which he distrained, (x) but if the defendant ever had the cattle 
 
 in the place stated in the declaration, in leading them to the 
 
 (/) 1 Wils. 315. Cro. E'.iz. 539. 1 Ante, 4R9. The case in '2 Ld. Rayru. 
 
 B. & P. SO. 1 East, '217. 8CS. is erroneous as to this point, 
 
 (m) 2 Mod. 274. 2/7. Cro. Eliz. (0 I Lutw. 99. 
 559. Willes, G19, 620. 1 Stra. 5. {u) I Show, 146. 
 
 (7t) 1 Sid. 95. Sir W. Jones, 196. (f) 7 V K. 391. 396. 
 
 (o) 21 Jae. I. c. IG. s. 3. (vy) See tlie- precedent, post, vol. 2 
 
 (/)) Post, vol. 2. 265. n. (r)- ■'•02. SOS. 1 Stra. 507. 2 Mod. 199. I 
 
 (7) 1 Lutw. 99. 2 Sauiid. 03. n. 6. Saund. 347. n. 1. Gi'.b. Replev. I66. 
 
 (r)7T. R. 391. 2 Wils. 355. 
 
 («) 4 Mod. 424. I Stra. 5. Com. (.t) I Saund. 547. a. 1. Post, vl 
 
 Dig. Pleader, E. 14. Cro. Elii. 539. 2. 510, 
 
 Vol. I. [ 45 ]
 
 491 OF PLEAS IN BAR IN REPLEVIN. 
 
 Ill replevin. pound, though he took them elsewhere, he should avow ac- 
 cordingly. (y) Where the dis.ress is for jjour-rates, the de- 
 fendant may plt;ad not guilty, und give the cause of taking in 
 evidence ;(r) and a general plea in given by statute vi'here a 
 distress is taken for sewers ratcs.,(a) or under the bankrupt 
 laws.(/!') But the defendant must avow or make cognisance with 
 mure paiticularity under a distress for rent,(cM'ent charge, (rf) 
 or damage Jl'anant.^r) And though the statute 11 Geo. il. c. 
 19. s. 22. gives a general avowry in cases of distress, for rent 
 service, £cc.(y" ) it is still advisable in some cases to set out the 
 tide specially, in order that a traverse of a particular pas t of it 
 may be taken, and that the p<u"ies may proceed to trial upon 
 some particular point in issue ■,(g) and this statute does not 
 extend to avowries for heriot custom or for a vent-charge. (A) 
 
 Jn trespass. ^'^ TREsrASs, whether to the person, fiersonal or 7'ealjiroper- 
 
 tijy the defendant may, under the genei'al issue, give in evi- 
 dence any matter which directly controverts the truth of any 
 
 •*• /t09 *allegation, which the plaintiff on such general issue will be 
 
 bound to pro\ e.(f/) and no person is bound to justify who is 
 not, /irimajacie, a trespasser ;(e) thus the plea of not guilty is 
 proper in trespass to persons, if the defendant committed no 
 assault, battery, or imprisonment. See. and in tresp^^ss to Jier- 
 407?a/ property, if the pk.intiff had no property in the goods, 
 or the defendant were not guilty of the taking, &c.(/) and in 
 trespass to real property this plea not only puts in issue the 
 fact of the trespass. See. but also the title, whether fret hold or 
 possessory, in the delendant, or a person under whom he 
 claims, may be given in evidence under it, which maiters shew 
 prima facie, that the right of possession, which is necessary in 
 trespass, is not in tb.e plaintifi", but in the defendant or the par- 
 
 ( J/) Post, vol. -2 .ill, 51'2. 1 Sautul. 347. See the prece- 
 
 (i)43Eiiz. c. 2. s. ]9. See the dents, po.st, vol. '2. 516,517,518. 
 
 precedent, post, vol. -2. 51.1. Co. Lit. ^(Z") See the forms, post, vol. 2. 512 
 
 2S3. a. to 51.T. 
 
 (a) 23 Hen. VUI. c. 5. s. 10. ig) 2 Saund. 2S4. d. 
 
 (^b) 1 Jac. I. c. 15. s. 10. (h) 2 Wi!s. 28. 2 Sauiid. 168. a. b. 
 
 {c) 11 Geo. II. c. 19. s. 22. 2 Saund. 1 B. & P. 213. 
 
 284. d. n. 4. 1 Saund. 347. ii. 6. {d) 2 Saund. 159. n. 10, 
 
 (rf)l B. Sc J'. 213. (e) Cowp. 478. 
 
 (e) 2 B. & P. 359. 2 Saund. 2S4. d. (/) Cowp. 478.
 
 OF PLEAS IN BAR IN TRESPASS. 492 
 
 ty under whom he justifies. (,§•) But where the act would, at Inn-fspass. 
 common law, //;■//»« y?zaV appear to be a trespass, any mutter 
 of justification or excuse, or done by virtue of a warrant or au- 
 thority, must in general be specially pleaded. (/O 
 
 Thus in trespass to pcraojisi son assault dtmesne,{i) modera'e 
 correction. (y) mollittr manus imjiofuit to preserve the peace, (/) 
 or a justification in defence of the possession of real or personal 
 property,(w) or by ''authority of law without process, either as * 493 
 
 an individual. (n) or as an officer, or in aid of him ;(o) or under 
 civil process, either mesne or finaUc/z) of superior,(7) or infe- 
 rior or foreign courts, must be pleaded specially ;{r) for who- 
 ever imprisons another, (except in some ca;ies under particu- 
 lar statutes hereafter noticed,) must justify himself by plead- 
 ing, and shew specially to the court that the imprisonment was 
 lawful : this is a positive rule of law, in order to prevent sur- 
 prise on the plaintiff at the trial, by the defendant then assign- 
 ing various reasons and causes of imprisoning the plaintiff, of 
 which he had no notice, and which consequently 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, (s) 
 
 In trespass to fiersonal property, a seizure as a heriot ser- 
 vice may be given in evidence under the general issue ;(0 but 
 in general, matters which admit the plaintiff's property, as 
 well as the seizure, &c. must be pleaded •,{u) as a juslifica- 
 lion for cutting ropes or killing dogs,(Ty) or taking guns, Scc.(w) 
 A distress for reiit when made on the demised premises, may 
 
 {g) 8 T. 11. 40.3. 7 T. R. 3.54. (») 6 T. U. 562. Post, vol. 2. 5.V2 
 
 Willes, 222. to 537. 
 
 (A) Co. Lit. 282. b. 283. a. Doug. (</) 1 Saniul. 10. 79. Id. ihid. 
 
 Cll. 2 Roll. Abr. 682. 12 Mod. 120. {p) 3 Wils. 370. I S:uiiid. 298. n. 
 
 1 SftunU. 298. n. 1. Cora. Dig. Plead- 1. Post, vol. 2. 537 to 540. 
 
 er, E. 15, 16, 17. (7) Id. ibid. 
 
 (j) 8 T. R. 299. 1 Sauml. 77. 296. (c) 2 East, 200. 274. 
 
 n. 1. (s) Co. Lit. 282. b. 283. a. 3 "Wiln 
 
 t.y) 2 C. k P. 224. Post, vol. 2. 370, 371. 
 
 527, 528. (0 Ci-o. Eliz. 32. 2 Saund. 168. a. b 
 
 (0 Post, vol. 2. 525, 5C6, 527. (w) Com. Dig. Pleader, 3 M. 2.'5. 
 
 (th) 8T. R. 78. 299. 3 Wils. 71. \v) 1 Samid. 84. 2 Lutw. 1494.. 
 
 Post, ^ol. 2. 529 to 533. Cora. Dijj. I'leader, 3 .M. .33. 
 
 (w) Com. Dig. Pleader, 3 AI. 25. kc
 
 493 OF PLEAS IN BAR iN TRESPASS. 
 
 J'! fresp 's^. be given in evidence under the general issue, (y) but if made 
 *" 494 cff'lhe demised *premiscs, as on a common, or under a fraudu- 
 lent removal, the defence must be specially pleaded ;(z) and a 
 distress or seizure for tolls,(fl) stallage at a fair, &c.(A) under a 
 by-!avi^,(c) or for damac^^e feasant, by the occupier,(d) or a com- 
 moner,(<') or other matter of justification, with or without pro- 
 cess, must be pleaded specially. 
 
 We have seen that in trespass to real /iro/iernj, a freehold or 
 mere possessory right in the defendant, may be given in evi- 
 dence under the general issue j(/) but it has been held that 
 the defendant cannot justify under the general issue, cutting 
 the posts and rails of the plaintiff, though erected upon the de- 
 fendant's land, there lieing no question raised as to the proper- 
 ty remaining in the ph.inliff ;(§•) and it is usual and frequently 
 advisable to plead liberum tenementujn, either in order to com- 
 pel the plaintiff to new assign, setting out the abuttals,(/i) or in 
 case he claims as tenant to the defendant, or to the person on 
 whose behalf the supposed trespass was committed, to compel 
 him to set forih such tenancy, which tlie defendant in his re- 
 joinder may insist has been determined by notice to quit, Sec. 
 ^' 495 ""^ liberum tennncntum is a *good plea to trespass in a seve- 
 
 ral or free fishery, the owner of the soil being firima facie 
 owner of the fishery. (/) An excuse of the trespass, on ac- 
 count of a defect of fences, which the plaintiff was bound to 
 repair,(/(') and a license from the plaintiff,(/) and a justification 
 under a rent-charge, or in respect of any easement or incorpo- 
 
 (i/) 11 Geo. II. c. 19. s. 21. culture let in or affix any thing to the 
 
 (:) 1 Esp. lit'p. 257. tVeeholil, it becomes part thereof, and 
 
 (rt) Ld. Raym. 384. 3 Burr. 1402. the property of the lessor, should it 
 
 liUtw. 1519. 8 Went w. 124. Carth. not « yo/Y/ofi, be so as to a trespasser. 
 
 357. Post, vol. 2. 548. (A) 1 Saund. 299. b. where see 
 
 (h") 3 Lev. 224. 227. observations on this plea. 
 
 (c) I T. R. 118. 4 Mod. ;?r7. (0 18 Edw. IV. 4. Co. Lit. 127. a. 
 
 \d) 1 Saund. 221. 2 Saund. 294. notes. Post, vol. 2. 560. 
 
 Post, vol. 2. 546. {k) Co. Lit. 283. 2 Saund. 285. 
 
 (e) 2 Wits. 51. Yelv. 104. 3 Wils. Post, vol. 2. 556. 
 
 125.291. 1 Saund. 3t6. (/) Ante, 487. 2 T. R. 168. Hob. 
 
 (/) Ante, 491. 7 T. R. 354. 8 T. 175. Gilb. C. P. 6.3. Vin. Abr. Li- 
 
 R. 403. Andr. 108. Willcs, 222. cense. Com. Dig. Pleader, 3 M. 35 
 
 (_§•) 8 East, 404. sed quaere, see 8 Post, vol. 2. 560. But see 21 Hen 
 
 T. R. 403. Even if a tenant in agri- \\\. 28. pi. 5.
 
 OF PLEAS IN BAR IN TRESPASS. 
 
 495 
 
 real right,(?«) as commoji of fishery ;(o) or of pasture ;(/;) or of In trespass 
 Uirbary ;((/) and a ris;ht of way either public(s) or private//) 
 and whether by ;^runt.(?/) vvill,(i^) prescription, (w) custom or of 
 necessity/?/) must be pleaded. So the defendant must plead an 
 entry by authority of law without process, as that the locus in 
 quo was an inn,(z) or that the defendant entered to demand 
 payment of his debt;(a) or to prevent murder ;(6) or by vir« 
 tue of process,(c) criminal or civil, of a sviperiorCf/) or *infcrior * 496 
 
 court,(<?) under mesne process, as a iatilat, ha J) or under 
 final process, as a Ji.fa-iS^ elegit^ &c. And in trespass to land, 
 where a removal of personal property is also alleged, the plea 
 should, as to the personal property, be speci.il, :ind siiew pos- 
 session of some land, Sec anrl justify the removal. Sec. damage 
 feasant^ 8cc.(/) In all actions of trespi\ss, whether to the per- 
 son, personal or real property, matters in discharge of the ac- 
 tion must be pleaded \{j) as accord and satisfaction, (a) arbiira- 
 ment,(/) release, (m) former recovery, «) tender of sufficient 
 amends,(o) and the statute of limitations, which in trespass to 
 persons is, thiu the defenddUt was not guilty within four years 
 and in trespass to personal or real property within six years. (/i) 
 In an action against a justice of the peace., mayor., constable^ 
 ckiirchwardenj and other peace-officers., or any other acti7;g in 
 
 (;») Per Ld. Loughborough. 1 
 H. Bi. 35-2. 2 Sauu.l. 402. n. 1. Co. 
 Lit. 283. 2 Wils. 173. Com. Dig. 
 Pleader, E 15. 
 
 (o) Cora. Uig. Piscary. Post, vol. 
 2. 5G1. 
 
 (p) 1 Saund. 25. 340. 2 Sau.id. 2. 
 
 Iq) e, T. U. -18. 
 
 («) 1 H. Bl. 352. 8 T. R. 606. 2 
 Saund. 158. c. n. 4 k 6. Post, vol. 2. 
 570. 
 
 (0 III. ibid. Post, vol. 2. 573. 
 
 Ill) 2 Moil. 274. 3 Kast, 294. 
 
 Qv) I B. & P. 371. 1 Saund. 323. 
 B. 6. 2 Saund. 158. c. 
 
 {~.v) 1 East, 350. 377. 381. 1 B. k 
 P. 371. I Saund. 322. n. 6. As to 
 pleading u prescription in general, 
 and failure in proof of a part, see 1 
 Burr. 442. 
 
 ( I/) I Saund. 323. 8 T. R. 50. 
 Lutw. 1487. Post, vol. 2. 577. 
 
 (=) Com. Dig. Pleader, 3 M. 35. 
 (c() Id. ibid. Cro. Eliz. 876. 
 
 (b) 2 B. k P. 260. 
 
 (c) 1 Saund. 298. n. 1. 
 {d) 3 B. k P. 223. 
 
 (f) 7 T. 1?. 655. Lutw. 914. 
 
 (/)3B. k P 223. Post, vcl. 2. 
 5S2. 
 
 (5) Post, vol. 2. 5S7. 
 
 {i) 8 East, 404. Willes, 222. n. h. 
 
 Ij) 3 Burr. 1353. 1 BI. Kep. 3S8- 
 1 Wils. 45. Ante, 485. 
 
 (^^) 3 Burr. 135.3. 
 
 (/) Po.st, vol. 2. 520. 
 
 (in) 3 Burr. 1353. 
 
 In) Id. ibid. 
 
 (0) 21 Jac. I. c. 16. Cora, Dig. 
 Pleader, 3 M. 36. Vin. Abr. Tres- 
 pass, S. a. 542. 3 Lev. 37. Post, \oL 
 2.520,521. 
 
 (/>) 21 Jac. L c. 16. s. 3. 6 East, 
 390.
 
 496 OF PLEAS IN BAR IN TRESPASS, Sec. 
 
 Ill trespass, their aid and assistance or by their command for any thing done 
 by them, by virtue or reason of their office, the i^eneral issue 
 may be pleaded, and the special matter given in evidence(9) 
 and there is a similar provision in the highway ,(r) turnpike, (.v) 
 militia and assessed tax acts, and in various other statutes iu 
 protection of persons acting in the execution of their office, 
 
 * 497 *'^^ others in aid of them. It is also a general rule at common 
 law, that matters in mitigation of damages, &c. which cannot 
 be specially pleaded, may be given in evidence under the 
 general issue. (/) 
 
 In ejectment. "^^ EjECTMEjJT, a defendant when he appears, is compelled 
 to enter into the consent rule, and to plead the general issue, 
 consequently in this action no special plea can be adopted ; we 
 have seen, however, that the court will in some cases on spe- 
 cial application permit the defendant to plead to the jurisdic- 
 tion.(?/) 
 
 Of pleatTinp' From -the above instances and observations, it may be col- 
 
 the general ]ected, that any matter of defence which denies what the plain- 
 issue, or a ' ■' 
 special plea ill tiff would on the general issue be bound to pi'ove in the first 
 
 instance, in support of his action, may and ought to be given 
 in evidence under that plea ;(a) but that any ground of de- 
 fence, which admits the facts alleged in the declaration, but 
 avoids the action by matter which the plaintiff would not be 
 bound to prove or dispute in the first instance, on the general 
 issue, may be pleaded specially. (3) Thus in an action of as- 
 smnfisity matter which shews that no such contract was made, 
 cannot be pleaded, but matter which admits that such a con- 
 tract was made, but shews that it is not binding in point of law, 
 in respect of the coverture, infancy, Sec. may be pleaded. So 
 in trespass for taking personal property, the defendant cannot 
 
 (?) 21 Jac. I. c. 12. s. 5. Co. Lit. (?/) Ante, 430. 
 
 283. («) 4 Mod. 405. Ld. Raym. 38. 
 
 (?•) 13 Geo. III. c. 78. 3 Bl. Com. 309. 
 
 (s) 13 Geo. HI. c. 84. {b) Ld. Raym, S8, 89- 
 .(f) Co. Lit. 283. a. 2 B. & P. 223.
 
 OF PLEAS IN KAR. 
 
 *498 
 
 *plead ftro/ievty in a stranger or in himself, {c) because that Of pkadinx 
 goes to contradict the evidence which the plaintiff must on the me^ i.Aq'^adal 
 general issue adduce in support of his action. (J) ^'j*-'?- '"■ i'"^"*^- 
 
 Where tlie defence consists of matter of fact, amounting to 
 a denial of the allegation which the plaintiff must prove in sup- 
 port of his declaration, the general issue must be pleaded, or 
 it would be a good cause of ajiecial demurrer, that the plea 
 amounts to the general issue ;(e) though there are cases in 
 which it has been adjudged, that it being in the discretion of 
 the court, when a plea amounting to the general issue shall be 
 allowed, the plaintiff ought not to demur, but should move 
 the court, for a ruie to shew cause, why the general issue 
 ouglu nol to be entered \{f) so an entire plea is good, though 
 to purt of the declaration it amount only to the general issue. (5') 
 The grounds on wliich pleas amounting to the general issue 
 are objected to, are, that they tend to unnecessary prolixity 
 and expense, and draw to the examination of the court what is 
 proper to be determined by a jury. (A) 
 
 But as we have just seen in many cases M'here the defence Implied co- 
 consists of matter of /a-Tf, the defendant *may either plead it ^ tqq 
 specially or give it in evidence under the general issue, (/) and 
 in all actions the defendant may plead any matter which shews 
 why the action does not lie, and which being matter of law is 
 proper to be shewn to the court ;(Xr) as in assumpsit., infancy, 
 payment, Sec. In these cases, from the nature of the defence, 
 the plaintiff has an imfilied colour of action, bad indeed in point 
 of law, if the facts pleaded be true, but which is properly re- 
 
 (c) Ld. Raym. 88, 89. 1 Ventr. (/) Hob. 12". 1 Leon. 178. 2 
 
 249. 2 Lev. 92. Cro. Eliz. 329. Roll. Rep. 140. Com. Dig. Pleader, 
 
 (J) Bac. Abr. Pleas, G. 3. Com. G. l4. See also Doct. Plac. 204. Co. 
 
 Dig. Pleader, E. 13, 14. Lit. 303. b. 
 
 (e) 3 Bl. Com. 30'.l. Com. Dig. ( g) 3 Lev. 40. 
 
 Pleader, E. 13, 14. Bac. Abr. Pleas, (A) Bac. Abr. Pleas, G. 3. Gilb- 
 
 G. 3. 6 East, 597. 10 Co. 95. a. C. P. Com. Dig. Pleader, E. 13- 
 
 Cro. Car. 157. Cro. Eliz. 147. Ld. Hob. 127. 
 
 Raym. 552. this was formerly ground if) Com. Dig. Pleader, E. 14. Bac. 
 
 of error, but was aided by 32 Hen. Abr. Pleas, G. 3. what is matter of 
 
 \ in. c. 30. I Saund. 228. c. Wliat law, Wilks, 410. 
 
 is matter of law, sec Willcs, 410. (Jc) Bac. Abr. Pleas, G. 3. Gilb. 
 
 An aigumcntative plea amounting to C. P. 62. C6. 
 general issue, bad on demurrer, 6 
 East, 597.
 
 499 ' OF GIVING COLOUR. 
 
 oy coifjin: ferred to Uie decision of the court. (/) So a plea in trover, 
 that yt was possessed, and lost the goods, that B found them, 
 and gave them to the plaintiff who lost them, and that the de- 
 fendant found them, and by the command of ^4, converted them, 
 was held sufficient, because it gave an implied colour by con- 
 fessing the possession and firotierty in the plaintiff ag.^inst all 
 but the lawful owner.(?") 
 
 So without giving express colour, the defendant may plead in 
 trespass or trover, that he was possessed of the goods, but not 
 saying they were his own, and sold them in market overt to 
 the defendant ; or that B took them de quodam ignoto, and 
 waived them within the defendant's manor, wherefore he took 
 them ; because such plea gives an implied colour, and does 
 not deny but that the property was in the plaintiff; and the de- 
 
 * 500 fcndant is not bound to shew expressly in *whom it was.(n) 
 
 So in trespass for taking corn, the defendant may pleatl that 
 he took them as tythe or as wreck, without giving express co- 
 lour.(o) The plea of liberum tenanentum may also be consi- 
 dered as giving implied colour,(//) for it admits that in point 
 oi/act, the plaintiff may have been in possession of the locus 
 in cjuo, (which as in the case of personal property firima facie 
 entitles the plaintiff to maintain trespass against all the world, 
 but the rightful owner,) (r) but insists that in point of law, such 
 possession is unlawful. (a) So in trespass to lands if the de- 
 fendant claim under a demise from the plaintiff, express co- 
 lour need not be given ;(0 however, the unnecessary addition 
 of colour appears to be no ground of demurrer, for the intro- 
 duction of superlluous words of form will not vitiate. (u) 
 
 Of c-xprcss But where from the nature of defence, the plaintiff would 
 
 have no implied colour 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 
 
 (0 Tidd, 600. (/>) 7 T. R. 354. 8 T. R. 403. 
 
 l>n) Ci-o, Eliz. 262. 539. 8 Co. 90. (r) Cm. Eliz. 262. 1 East, 244. 
 
 b. Com. Dig. Pleader, E. 14. ace. (s) As to this plea, see 1 Saund. 
 
 Ltit. 185. I Leon. 178. semb. contra. 299. c. 
 
 (h) 10 Co. 90. b. (0 3 Salk. 273. 
 
 (o) 10 Co. 88. a. J«e. Reg. Plac. («> I East, 219. 
 304.
 
 OF GIVING COLOUR. 500 
 
 cx/ireas colour ;(x) thus in an action of trespass to land, if the Of co'our. 
 defendant plead a possessory title under a demise from a third 
 "person ; this plea, shewing th;tt the right of possession is in * 501 
 the defendant, would, without giving express colour, amount 
 to the general issue,(i/) for it goes to deny that the trcsp.iss 
 was committed in the plaintiff's close, and shews the right of 
 possession in the defendant ; but if the defendant after stating 
 his own title supposes, as is usual, that the plaintiff entered 
 upon his possession under colour of a former deed of feoffment 
 without livery, or of a charter of demise made before the de- 
 mise to the defendant, and that the defendant re-entered, 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 supposal, it is not traversable ;(r 
 so in trespass for taking goods, if the defendant plead that a 
 third person was possessed of them., as of his ovjn projier goods^ 
 and sold them in market overt to the defendant, the defendant 
 must give colour, for his plea alleging that A was possessed 
 as of his own property, amounts to a denial that the plaintiff 
 had any properly in them, and, therefore, gives no colour of 
 action ; and the colour usually given in such cases, is, that 
 the defendant bailed the goods to a stranger, w ho delivered 
 them to the plaintiff from whom the defendant took them.(rt) 
 
 Every ex/iress colour, it is said, ought to have four quali- Furm of co- 
 ties ; first, it ought to be a matter of ti'Je doubtful to a jury, 
 as where the defendant pleads *that the plaintiff claiming by * 502 
 
 colour of a deed of feoffment, Sec. that is sufficient, for it is a 
 doubt to lay gents, if land shall pass by deed only without 
 livery ; seco-ndty, that colour as such ought to have continuance 
 although it wants eflect, as if the defendant give colour bv 
 colour 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, 
 
 (x) 2Sauiid. '!()1. 10 Co. 88. &c. {ij) 1 Saund. 401. 7 T. R. .154. 
 Cro. Eliz. 76. 8 T. U. 406. As to 8 T. R. 4()6. 1 P^asl, 215. Com. Dig- 
 colour ill [ilt-adiiis; in j;oiierftl, see 10 Pleader, 3 M. -VO, 41. 
 CoSS. kc. 1 East, 215. 3 Bl. Cora. (:) 1 Kast, 21.3. 215. SSalk. 2:.: 
 3O9. Re- Flac. 303. Doct. Plac. ((.) 10 Co. 90. b. 
 Colour. Doct. &. Stud. lil). 2. c. S,"!. 
 .VSalk. 273. Bac. Abr. I'leas, 1. 8. 
 
 \0h. I. [ 46 ]
 
 502 <->i'' PI^EAS IN BAR. 
 
 Of colour- this is not sufficient, because the colour doth not continue .;. 
 but the defendant may well deny the effect of it, viz. that the 
 plaintiff claims by colour of a deed of demise to him for his 
 life ; whereas nothint^ passed thereby ; therefore, there is a 
 difference between the continuance of the colour and the ef- 
 fect of it ; thirdly, it ought to be such a colour as, if it were 
 of effect, would maintain the nuture of the action, as in an as- 
 sise, colour of a freehold ought to be given, &c. fourthly.^ co- 
 lour ought to be given by the first conveyance, otherwise all 
 the conveyance before is waived ;(6) and, therefore, where the 
 defendant derived a title to himself by divei's mesne convey- 
 ances; and gave colour to the plaintiff, by one who was last 
 pamed in the conveyance, this was held insufficient, and that 
 he should have given colour by him who was first named in 
 the conveyance ;(c) and in giving colour under a feoffment, 
 the word charter or deed must not be omitted. (rf) The omis- 
 sion of express colour, when necessary, will be aided by the 
 
 * 503 replication, (e) though not upon general demurrer,(y) *and the 
 
 want of giving colour is aided after verdict by 32 Hen. VIII. 
 c. 30.( -) 
 
 When to Although the defendant may be at liberty to give his ground 
 
 cial'hi ' ^^ defence in evidence under the general issue, there are, as 
 we have seen in the instance of the plea of infancy, libcrum 
 tenementiun. Sec. many cases in which it maybe most expedient 
 to plead specially, in order either to compel the plaintiff, in 
 his replication, to admit some of the facts stated in the plea, 
 and thereby to narrow the defendant's evidence, or to compel 
 the plaintiff to disclose his title. Sic. and thereby narrow the 
 ground on which he miglitrest his case on the trial. It would 
 be foi'cign to the oi>ject of this treatise to attempt to enumerate 
 ^ all the various instLiUces in which it may be advisable or not to 
 plead specially. In some cases where a justification is pleaded 
 it may be advisable not to plead the general issue ; thus in tres- 
 pass quare clausum f regit, if the plaintiff's possession cannot 
 
 {li) As to colour in genei-al, see (J) Irl. ibid. 
 10 Co. 91. b. Doet. Plac. tit. Colour, (c) Ld. Rayra. 551, 552. 
 72. kc. Bac. Abr. Pleas, 1. 8. Com. (,/) Id. ibid. Sed vide ante, 498 
 
 Dig. Pleader, 3 M. 40, 41. and 4 x\nn. c. 16. s. 1. 
 
 (c) 2 Roll. Rep. 140. (5 ) 1 Saund. 228. c.
 
 WHEN TO PLEAD SPECIALLY, See. 503 
 
 be disputed, and the defendant rely upon a right of way, it is U'J'.en to 
 better not to plead the general issue, in order that tiie defend- cidhi. 
 ant's counsel may begin at the trial, and, that thereby, in case 
 the plaintiff examines any witnesses in chief, the defendant's 
 counsel may have the advantage of the reply. On the ether 
 hand, in an action for assault and battery, it is not advisable to 
 plead specially, justifying the battery, if there be the least 
 doubt of establishing the justification, *for where a battery is * 594 
 
 not admitted by the plea the judge must certify to give the 
 plaintiff his full costs, if he obtain a verdict for damages less 
 than 40.9. but where the defendant by his plea admits a battery, 
 and it is found against him, no certificate is necessary ;(//) so 
 in trespass quare clausum fregit if the defendant plead a li- 
 cense or other justification, to the whole of the trespass which 
 docs not make title to the land, and if it be found against him 
 the plaintiff is entitled to full costs, without a certificate, 
 though he do not recover 40s. damages -/d) however, in slan- 
 der, though the defendant justify, and it be found against him, 
 yet if the damages be under 40s. the plaintiff cannot recover 
 more costs than damages ;(A-) in the latter action, therefore, 
 there is no objection to a special pica 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 indisputa- 
 ble evidence, because such a justification when ineiibctudi, will 
 in general materially enhance the damages. 
 
 Care should be taken to plead in the first instance every AH flerencci? 
 matter of defence of which the defendant would not be at liber- pieo'iie^) "^ 
 ty to avail himself under the general issue : for though the 
 court will in general give the defendant leave to add or alter a 
 plea, where tlie justice of the case requires it, yet this will be 
 only on payment of costs incurred by his mistake ; and if the 
 cause should proceed to trial, and be found against the defend- 
 ant on account of *the omission of one or more grounds of ^ 5Q.'^ 
 defence, he will in general be precluded forever from taking- 
 advantage thereof, unless in some cases by audita querela^ or 
 
 (A) fi T. R. 564. Tid.l's Prac. (») 7 T. R. 660. 7 East, 325. 
 4tl» edit. 866. Tidd's Pi-ac. 4th edit. 867. 
 
 C.«"l 4 East, 567.
 
 505 ^^1' PLEAS IN BAR. 
 
 .91! defences cri'or in i'lict corcvn tichis ;(/) and as it is a i:ule of pleading- Uiat a 
 tube phuded. (departure will not be allowed, the defendant cannot rectify the 
 omission of a ground of defence by his rejoinder ; this fre- 
 quently occurs in debt on an arbitration bond, in which if the 
 defendant merely plead no award, he puts the plaintiff to reply, 
 settini; out an award, and the defendant cannot rejoin that it was 
 insufficient, or that he performed it, Sec. 
 Of sliam ar.d It is very usual for the purpose of delay to plead what is 
 iv^ij;ii.!e picas, j^rmed a sham plea ; this practice, tliough it still prevails, is dis- 
 countenanced by the courts,(7//) and though the replication to 
 such a plea may be insufficient, the court will give leave to 
 amend vritliout payment of costs ^iji) therefore in the adoption 
 of these pleas, in instances which may be warranted by the 
 practice of the bar, cure should be taken to plead those which, 
 though calculated to obtain time, are concise and usual, and not 
 calculated to create unnecessary expense, or intricacy. In 
 framing a special plea, it is also necessary to consider w hether 
 tl.e defendant is r.nder terms of pleading issuably, which sig- 
 nifies u plea in chief to the merits,(o) upon which the plaintiff' 
 may take issue and go to trial, (/;) or a demurrer for some de- 
 ^ KC\P. ^^^'^ ^^ substaiice.((,') A plea *in abatement is not an issuable 
 plea,(r) nor a plea of alien enemy,(s) nor an untrue plea of 
 judgment recovered ;(/) but a true plea that a bail-bond was 
 taken for ease and favour,(;/) and a tender,(-i') and the statute 
 of limitalions,(Ty) and a plea though informal, (.r) are issuable 
 pleas. When the defendant, being under the terms of plead- 
 ing issuably, pleads a sham plea, or demurs for want of form, 
 judgment may be signed ;(j/) and \\ here several pleas are 
 pleaded, one of which is not issuable, it will vitiate all the 
 
 (/) Tidfl, 3(1 edit. 1047, lt»-lS. and (r) 1 Burr. 59. Barnes, 263. 
 
 id- Index, uudiUi quicvfla. '2 Saimd. {s) 8 T. R. 71. 
 
 1J7 U) 151). (0 1 Bl. Rep. .57fi. 
 
 (w) IJac. Abr. Pleas, G. 4. 1 Ka^t, (,';) 1 Burr. C05. 
 
 STi. ' (-!') 1 Burr. 59. 
 
 (h) Id. ibid. (vc) .'3T. R. 124. 1 B. & P. 2'28. 
 
 (o) 3 B. k P. 171. Tid.i's Prat. 1 Bl. Rep. 35. 2 T. R. 390. 
 
 4tli edit. 418. (.r) Rep. temp. J lard w. 179. 5 T. 
 
 (/;) 7 T. R. 530. Barnes, 263. 2 R. 152. 
 
 Burr. 782. {y) Tidd, 3d edit. 429. n. c. 4th 
 
 (ry) 3 Burr. 1788. 2 B. k P. 446. edit. 419- 
 Tidii's Praf. 4lh edit. 418, 419.
 
 ALL DEFENCES TO BE PLEADED. 50$ 
 
 others,(r) and where the defendant l)eing under an order to Of sham and 
 plead issuiibly, puts in a sham demurrer to some of the counts, '■''■"•'^"r'^'^^- 
 and pleads issuably to the rest, judgment by nil elicit as to the 
 whole may be signed ;(«) where, however, it is doubtful whe- 
 ther the plea be issuable, the safer course in term time is to 
 move the court to set it aside. (ii) 
 
 //. OF TUi: QUALITIES OF PLEAS LV BAR. 
 
 There are some general (juatiiiea, which affect all picas in bar, 
 and some rules which prevail in the conttruction of them, 
 which it is advisable to consider beibre we inquuc *into their ^ ^q-t 
 form. The general (jualities of a plea in bar, are, 1st. That it 
 be adapted to the nature and form of the ac.ion, and also be 
 conformable to the count. 2dly. That it answer all which it 
 assumes to answer, and no more. 3dly. In the case of a spe- 
 cial pica, that it confess or omit the fact. 4thly. That it be 
 single. 5thly. Certain. 6lhly. Direct and positive, and not 
 argumentative. 7thiy. Capable of trial ; and, Sthly. True. 
 
 1st. Every plea in bar, must be adapted to the nature of the 1st. Conform- 
 action, and conformable to the count. («) V/c have already !|(^tt,n arnl"^ 
 seen what are the appropriate generid issues, and special <5"'J'-t- 
 pleas in each action. If the defendant plead a plea not adapt- 
 ed to the nature of the action, as Jiil debet in aasum/'.oit^^b) 
 or non assumpnit in debt,(f) the plaintiff may treat it as a nul- 
 lity and sign judgment ; so if not guilty be pleaded in a-isttrnfi' 
 sit the plaintiff may demur, though it would be aided by ver- 
 dict •,{d) but the plea of not guilty in an aclion of debt on a 
 penal statute, is not such a nullity as will warrant the plaintiff 
 in signing judgm.ent ;(e) and where the plea, though informal, 
 goes to the substance of the action, as 7ul ?:ebct to debt on bond, 
 
 (r) 3 T. R. 305. ' (c) 6 East, .i49. 
 
 {a) t East, 4n. (r/) 2 Sti-ii. 10-2-2. Bac. Abr. Pka?, 
 
 (6) r,wi: 5'.t. 2 T. n. 390. 7 T. I. 1. 
 H. :'30. (f) 1 T. R. '\Cr2. 3 B. & P. 111. 
 
 ((/) Co. Lit. 303. a. 2S5. b. Bac. 171. Com. ])i-. Fle^tdcr, 2 ^. 11. s. 
 Abr. Pleas, I. per tot. 17. 
 
 (i) Barnes, 257. ace. Rep. temft. 
 llarilw. 179. ccmh. coiif.
 
 507 OF PLEAS IN BAR. 
 
 II. Qualities, the plaintiff should demur and not sign> judgment ;(/) and in 
 general, where the defendant pleads an improper plea, the 
 
 * 508 safer course is to demur, or move the court to set it *aside.(5') 
 The plea must not only be adapted to the nature of the action, 
 but also be conibrniablc to the count : thus if an assignee of 
 a bankrupt declare that the defendant was indebted to the 
 bankiupt, and promised the plaintiff as assignee to pay him, the 
 defendant cannot plead that the cause of action did not accrue 
 to the bankrupt w ithin six years, because the plea does not an- 
 swer the promise in the declaration, and precludes the plaintiff" 
 from proving a promise to himself, and is therefore bad on de- 
 murrer ;(/i) and in debt gui tarn, a plea that the defendant doth 
 not owe to the plaintiff alone is sufficient, though if it had been 
 nil debet generally, it would have sufficed. (0 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 filacc 
 mentioned in the declaration ;{]) but if the justification be lo- 
 cal, the defendant must plead it in the county or parish where 
 the matter arose, and conclude with a traverse of having been 
 guilty elsewhere ;(a) 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 uniformly tried in the 
 
 ^ 509 county where the x'ejmf is laid in the declaration. (^) So *Mrhen 
 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. (?») Where, however, 
 there is no ground to intend the contrary, the plea will be con- 
 sidered as conformable to the count : thus in asfnunfisit against 
 an executor on the promise of his testator, the defendant plead- 
 
 ( /■) 5 T. R. 152. 5 Esp. C. N. P. 85. n. 1. 2 Saund. 5. n. 3. Com. Dig. 
 
 .\iite, 506. n. (.«.). Pleader, E. 4. C. 20. & tit. Action, 
 
 {g) 1 Bui-r. 5<}. 2 T. R. 390. 7 N. 5. 12. Vin. .\br. Trial, M. a. 
 
 T. U. 530. Rej). tfinp. Har«hv. 179. 5 (A,) LI. ibid. I Sauud. 78. 82. n. 3. 
 
 T. K. 152. 2 Saund. 5. n. 3. Post, vol. 2. 530. n. 
 
 (A) 2 SU-a. 'J19. 2 H. Bl. 5G1. 2 {q). 
 
 Saii'.id. 63. d. (0 Id. ibid. Sed qu. 1 Saund. 98. 
 
 (J.) Hob. 3-'r, 328. Reg. Plae. 302. n. 1. 
 
 Bac Abr. Action qui tarn, U. Post, (w) 1 Saund. 14. 78, 79. 82. n. 3. 
 
 tol. 2. 459. n. (e). 2 Saund. 5. n. 3. Com. Dig. Pleader, 
 
 (J) 1 Sauud. 217. u. 1. 8. a. n. 2. E. 4.
 
 THEIR QUALITIES. 509 
 
 ed that he did not undertake, and it was objected that it did not U. Qiialit^rs 
 appear by the plea who did not assume, but it was adjudged 
 that it shall be intended the testator, as there wis no count in 
 the declaration, on a promise by the executor.(«) 
 
 2dly. It is a rule that every plea must answer the whole -'H."- ^}^^* 
 
 answer ail it 
 
 declaration or count, or rather all that it assumes in the intro- assumes to 
 ductory part to answer, and no more.(o) If a plea begin only ,^o more, 
 as an answer to part, and is in truth but an answer to part, the 
 plaintiff cannot demur, but must take his judgment for the part 
 unanswered, as by nil elicit : and if he demur or plead over, the 
 whole action is discontinued ;(/2) and it is frequently judicious 
 to plead only to part, or to admit a part of the cause of action, 
 in order to avoid the costs of the trial of such matter. (y) So 
 if the plea profess to answer only a part, but afterwards answers 
 more, it has been held that the plaintiff *should not demur, ^ ^■i(^ 
 
 but should take his judgment for the part not mentioned in the 
 beginning of tlie plea.(r) But if a plea profess in its com- 
 mencement to answer more than it afterwards answers, the 
 whole plea is bad, and the plaintiff may demur ;(.v) as if in tres- 
 pass the defendant assume in the introductory part of his plea 
 to justify an assault, battery, and nuounding; and afterwards 
 merely shews that by virtue of a writ he arrested the plaintiff, 
 but shews no excuse as to the nvounding ;{t) 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 any 
 thing is inserted in the declaration, merely as matter of agi^ra- 
 vation, the plea need not answer or justify that, and the an- 
 swering the matter which is the gist of the action v.ill suf- 
 Ijce.(w) A general charge ought to be answered in every part, 
 but it is said to be sufficient to answer a collateral issue in the 
 
 (n) 1 Lev. 184. Latch. 125. (rj) 2 East, 88. 
 
 (o) Co. Lit. 303. a. Com. Dig. (;■) 1 Stra. .303. 1 Saund. 28. n. J. 
 
 Pleader, E. 1. 3fi. 1 Saund. 28. n. 1, ace. but see 2 B. 8o P. 42r. 
 
 2, 3. 2 B. & P. 427. 3 M. k P. 174. (s) I Saund. 28. n. 1, 2, 3. 296. n. 1. 
 
 (/)) I Saund. 28. n. 1, 2, 3. Willes, Willes, 55. See post. 
 
 iSO. 1 H. Bl. 645. 1 B. & P. 411. (<) 1 Saund. 296. n. 1. 8 T. R. 299. 
 
 However, at any time during the (?/) 1 S.ii-nd. 28. n. 3. 3 T. R. 297. 
 
 same term, the plaintifl' may ree- 3 Wils. 20. Com. Dig. Pleader, E. I. 
 tify his mistake by taking judgment. 
 Stra. 30 J.
 
 510 OF PLEAS IN BAR. 
 
 U. Qualities, words of the plaintiff -.(tO 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 traverse would be too 
 large ; but in debt on an obligation, that he shall do no waste, 
 and the breach is assigned that he cut twenty oaks, it is suffi- 
 cient to plead that he did not cut the said twenty oaks, inodo et 
 
 ^ 511 forma ;('ro)and a plea in bar to an avowry *for rent for 120/, 
 that the said 120/. were not due, without sayinrj any part there- 
 of, is bad on demurrer.C'*;^) 'i'he points on this subject will be 
 more fully stated, v»'hen we consider the nature of traverses. 
 
 5(l!y. Must 3diy. Every special plea of justification slates circumstances 
 
 confess tlie ,./.,• , r - • i r 1 • 1 
 
 fac(s pleaded which either excuse the lact coiupiained ot, or shew it to be 
 lawful ; it must therefore admit or confess such fact, otherwise 
 it is not a justification, but a denial of the fact, and amounts to 
 the general issue ;(.r) and therefore in trespass, for an assault 
 and battery, where the defendant pleaded that he was riding a 
 horse in the king's highway, and that his horse, being fright- 
 ened, ran away with him, and tliat the plaintiff was desired to go 
 out of the way and did not, and the horse ran upon the plain- 
 tiff, against the defendant's v/iil : on demurrer the plaintiff had 
 judgment, because the defendant had assumed to justify the 
 battery, and yet had not confessed that which amounted to a 
 battery by himself; for if the horse ran away against the will 
 of the rider, it could not be said, with any colour of reason, to 
 be a battery in the rider, and it was admitted by the court that 
 if the defendant had pleaded not guilty, this matter might have 
 acquitted him upon evidence. (f,-) 
 
 4ilily. Must 4thly. Every plea must in general be single, and if it contain 
 
 be single. „ . ' , 
 
 two matters, cither of which woulu bar the action, and require 
 
 severe! answers, it will in general be subject to a special de- 
 
 ^ 512 murrer for duplicity; as if several outlawries, *or if moderate 
 
 correction and a release, 8<c. be stated in one plea, as either of 
 
 these would defeat the action, the plea would be considered 
 
 (7)) Cro. Eliz. 84. 3 B. Si P. 34S. Carth. 380. I Saund. 28. n. ami n. 
 
 Com. Dig. rieader, G. 1.5. ii. n. 3. 
 
 (w) Cm. Eliz. 84. Yeiv. '225. (»/) Sivlk. 637. Ld. Raym. S». 3 
 
 (w) 3 B. k P. 348. Wil3. 411. 
 (.r) 3 T. R. '23S. 1 Salk. 3Q4.
 
 THEIR QUALITIES. 512 
 
 double. (2) But the defendant is not precluded from introdu- II- Qualities. 
 cing several matters into his plea, if they be constiiuent pans 
 of tiie same entire defence, and form one connected proposi- 
 tion, (a) or be alleged us inducement to, or as a consequence 
 of, another fact ;(6) 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 F, and that during such marriage, 
 £ F 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 him ; but it was resolved not to double, be- 
 cause he could not plead the release without shewing the mar- 
 riage. (c) And at common law, the defendant may plead to a 
 part of the declaration one ground of defence, and to another 
 part a diflerent ground :(</) and this in inferior courts not of 
 record, is the only course to be adopted ;(<?) and at comnion 
 law one defendant may plead one matter in bar, and the other 
 defendant another matter,(./') or the defendant may plead in 
 abatement to part, and in bar to other part, and may demur to 
 the residue. (,§•) The rule that a plea must be single, also pre- 
 cludes the defendant from pleading and demurring to the same 
 fact the duplicity *in which case would draw the matter to a dif- ^ 513 
 ferent inquiry, the demurrer to be tried by the court, and the 
 fact, by a jury .(A) So a plea confessing and avoiding, and also 
 tt'aversing the same point, is in the nature of a double plea.(z) 
 An executor, however, may and ought to plead several judg- 
 ments, £cc. outstanding ;(y) and in a plea uf set-off the defend- 
 ant may rely on a debt on record, and a debt on siiiiple con- 
 tract, though one will create an issue of law, and the other aa 
 issue of fact.(/<:) The statute of Ann. allowing double piecis,(/) 
 
 (2) Co. Lit. 304. a. Bac. Aljr. (e) See the form, 1 Saiind. 2D6. 
 
 Pleas, K. 1, -1. Com. Dig. Pleader, (/) Cora. Di-. Pleader, E. 2. 
 
 E. '2. 1 Saund. 49, 50. Plowd. Com. ( if) Ante, 44r. 
 
 140. a. (A) 1 1 Co. 5'2. Bac. Abr. Picas, N. 
 
 («) -2 Bl. Uep. 1022. 1028. I Burr. 0) a Venti-. 212. 3 M<.d. 318. Co. 
 
 31fi. -IS. Eiit. oOk 
 
 (6) Com. Di-r- Pleader, E. 2. (./) 1 Saund. .33r. a. 
 
 (c) Moor, 25. 1)1. 8.-5. Dalis,30. pi. 9. (k) 1 East, 372. 
 
 (</) Bae. Abr. Pleas, K. 1. Co. (/) 4 Ann. c. 16. 
 Lit. 304. a. 
 
 Vol. I. [ 47 ]
 
 5ia OF PLEAS IN BAR. 
 
 Tl Qvulitie!,. ^^^^ paillcular ett'cct oiwliich av ill hereafter be considered, doe 6 
 not appear to aid a duplicily in one and the same plea, though 
 it allows of difl'erent grounds of defence, being stated in dif- 
 ferent pleas. Duplicity must be objected to by special de- 
 murrer, and the particular duplicity must be distinctly pointed 
 out.(7«) and if the plaintilV do not demur he must reply to 
 both material parts of the plea.(;0 
 
 Stliiv. iVlusL ^^ P'*^^ "^ '^^^'' "^i^^'St also be ccrtain.^o) Wc have already 
 beceitsiii. attempted to define the difl'erent degrees of certainty in plead- 
 ing, and to shew the application of each, and we have seen 
 that it is a general rule, that the minor degree of certainty, 
 viz. that to a common intent^ is sufficient in a plea in bar ;(/i) 
 there however appear to be some instances in Avhich greater 
 
 ^ ^ , . certainty is necessary in *a plea than in a declaration ; thus 
 
 "N 5 i 4 
 
 in a declaration on a promise to pay the debt of another m 
 
 consideration of forbearance, it is not necessary to shew that 
 the promise was in writing, according to the statute against 
 frauds, but it is otherwise in a plea.((/) So we have seen that 
 in a declaration, claiming a right of way or other easement, it 
 is sufficient 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 justi- 
 fying an entry into land. Sec. in respect of such easement, it is 
 necessary to set forth the right by prescription or grant, 8cc.(r) 
 And in trespass where the defendant justifies under a writ, 
 warrant, precept, or any other authority whatever, 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, but he must set 
 it forth specially, and the defendant ought further to aver in 
 his plea, that he has substantially pursued such authority.(«) 
 
 (?;i) I Saund. JiS". n. 3. Doct. (<?) I Sauiid. 270. Sir T. Rajm. 
 
 Plac. 14.7. Bac. Abr. Pleas, K. 1. 450. ii Salk. 519. 2 Saund. '297, 29S. 
 
 Com. D%. Pleader, E. 2. 1 B. & P. Bac- Abr. Agreements, C. qu. 2 
 
 415,416. Saund. 180. b. 
 
 {a) 1 Ventr. 272. (r) Ante, 3G5. 3 T. R. 768. 4 T. 
 
 (o) Com. Dig. Pleader, E. 5. C. R. 719. 
 
 41. E. 7, 8, 9, 10. n,per totam. («) Co. Lit. 283. a. I Saund. 29S 
 
 (/>) Ante, 237. Com. Dig. Ficadei-, n. 1. 
 E. 7. C. 17.1 Saund. 49. n. 1. 346. n. 2.
 
 THEIR QUALITIES. 5^4, 
 
 So in a declaralion on a deed, wiielber in debt or covenant II. Qrialitieg. 
 it is sufficient to say testatum exintit, but in pleas and avowries, 
 the deed being the substance of tlie answer, the operation of 
 the deed or instrument must be expressly averred, and not 
 stated by wtiy of recital or argument ;(?/) *but the missiatement ^ i^i ^^ 
 will be aided by verdict or general demurrer,^') and where the 
 defendant states his right only as ind.ucemc7it or conveyance, 
 so much certainty is not required ; thus it is sufficient to 
 allege in a plea that the defendant is /lossessvd of a close, from 
 which his cattle escaped into the plaintiff's land, throuj^h the 
 defect of a fence, which the latter ought to have repaired. (t^) 
 In some cases the law allows general pleading for avoiding 
 prolixity and tediousness ;(ar) the certainly or generality which 
 is inquired in pleading depends on the, nature of the subject 
 matter,(j/) and this has given rise to l^e distinction between 
 negative and affirmative pleas ;(r) if the defendant be bound to 
 perform all the covenants of an indenture, if they be all in the 
 affirmative, he miiy plead performance thereof generally, and 
 is not obliged to cxliibit to the court a performance of each of 
 them, for this would overload the proceedings, when only one 
 of the covenants might be in controversy between liie par- 
 ties ;(a) but if any be in the negative, the defendant n^.usi. plead 
 specially to each of tliem, and generally to the affirmative co- 
 venants, for a negative cannot be performed, and we have seen 
 that the plea of noii infregit conventioncin is not sufiicient,(6) 
 though in the latter case the mispleading v. ill "be aided on a * 516 
 
 general demurrer :(c) so 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, kc. performance nmst be pleaded 
 specially, because being a matter of law to be performed, 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 
 
 {ii) 1 Sannd. 274. n. 1. Ld. Raym. (w) Id. ibid. 
 
 1539. 1 Leon. 24'2. Com. Dig-. Plead- (:) Id. ibiil. Show. Pari. Cas. 97 
 
 tr, !•:. 3. Bac. Abr. Pleas, I. 5. («) Id. ibid. 
 
 (r) Id. ibid. {!>) Id. iliid. 8 T. IJ. I'&o 
 
 {vj) 1 Saund. 346. n. 2. (c) Id. ibid. 
 
 (.r) Co. Lit. 303. b. Bac. Abr. 00 Id, ibid 
 Picas, I. 3 8 T. It. 462. 1 B. k P, 
 6i.j
 
 516 OF PLEAS IN BAR. 
 
 ]I. qualities, only of the Tact ;(e) and general pleading is not allowed in ac- 
 tions of slander ; and therefore where ^'defendant pleaded that 
 the plaintiff had been illegally connected with a gang of swind- 
 lers, and had been guilty of defrauding divers persons, without 
 stating any names, the plea was held bad on demurrer ;(/) and 
 in pleas in tresp iss in particular, the facts justifying every part 
 of the matter which the plea professes to answer, must be sta- 
 ted with great precision, as if a nvounding be justified under a 
 latitat^ the attempt to rescue, or other resistance, must be fully 
 stated ;(^) and if an ofiirer jusiily breaking an inner door of a 
 house, in order to search lor and arrest a party, it must be al- 
 le5;:ed that he demanded the key, or that no one was present of 
 whom such demand could be made, and it is not sufficient to 
 say that she door was locked, so that without breaking open the 
 same, the defendant could not enter, without alleging the parti- 
 cular circumstances winch renflered the breaking necessary :(//) 
 
 * 517 so in pleading *matters in excuse all the circumstances should 
 be shewn (z) Necessary circumstances will, however, in ge- 
 neral be intended in a plea, as if a feoffment be pleaded, livery 
 need not be alleged, for it shall be intendcd,(/(:) and it is not 
 requisite to have so much certainty in pleading a matter which 
 is only conveyance oi- inducement, (/) or for matter in the ne- 
 gative. (m) 
 
 With regard to the cenaintij required in a plea in the state- 
 ment of the thnf and /^/acf when and where material facts have 
 happened, we have already seen that the lime and place men- 
 tioned in the declaration must be adhered to, unless it be ne- 
 cessary for tiie defence to vary therefrom. (/?) Matter of dis- 
 charge, as a release, Sec. must be shewn to have taken place 
 after the trespass, Scc.(o) and at common law in pleading pay- 
 ment of a bond, &c. it was necessary to shew that it was on 
 the day, Scc.(//) Unless a particular place be material to the 
 
 (e) Id. ibid. (/) Com. Dig. Pleader, E. 10. 1 
 
 (/) 1 T. R. 748. Saund. 346. n. '2. 
 (5) 1 Saund. 296. n. 1. 8 T. R. {m) Com. Dig. Pleader, E. 11. 
 
 299. In) Ante, 508, SO'J. 
 f (//) 3B. Sc P. 223. Sed vide 3 (0) Plo-.vd. 46. 
 
 Lev. 92. (/)) Plowd. 104. Cora.5)ig. PleatU 
 
 (^■) liac. Abr. Tresi)ass, I. er, E. G. 
 (A) Cora. Dig. Pleader, E. 9.
 
 THEIR QUALITIES. 5I7 
 
 defence, it does not appear to be necessary to state any place //. QuaUtief. 
 where the facts happened ; for though a distinction was for- 
 merly taken between a plea in abatement, and a plea in bar, a 
 venue is now unnecessary in both.(r/) The doctrine of venues 
 was clearly and correctly stated by Eyre, C. J. in Ilderton v. 
 IldertonXr) who said, " that as defendants with respect to 
 " transitory matters, are obliged to lay the vemi? *in their picas, * 518 
 
 *' in the place laid in the declaration, and since the statute 4 
 " ^nn, c. 16. s. 6. has directed that the jury should come de 
 " corfiore covntatus, 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 ve?iue at all in a plea, and 
 " being obliged to lay the same venue as in the declaration, 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 es- 
 " tablished on a different principle, ought now to prevail. "(*) 
 
 6th. We have already seen that pleading is a statement of Ctljly. Must 
 facts, and not a statement of argument ; it is therefore a rule, '^,osi[ive*^* f nd 
 that a plea should be direct and positive, and not by way of re- "f'' "igumeut- 
 
 , , . . Mtivu. 
 
 hearsal, reasonmg or argument, which would tend to create 
 unnecessary prolixity and expense,(/f) and deeds and other 
 matters should be pleaded according to their legal operation, 
 though differing from the words ;(w) thus li scire facias h& 
 brought against a parson for the arrears of an annuity recover- 
 ed 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, ^ 51a 
 
 instead of merely pleading facts from which that conclusion was 
 to be drawn -.{v) so a surrender by operation of law should be 
 pleaded as a surrender, and not merely circumstantially ; thus 
 
 (9) 1 Saund. 8. n. 2. ace. Vin. 31)4. a. Com. Dig;. Pleader, E. 3. 6 
 
 Abi-. Triid, A. pi. 20. Com. Di;,'. East, 597. Hob. 29.i. 
 
 Pleader, C. 20. Liitw. 1466. contr. {u) 2 Saund. 97. b. n. 2. Bae. Abi\ 
 
 (r) 2 11. Bl. 161. Pleas, 1.7. 
 
 (s) 1 Saund. 8. n. 2. (v) 2Andr. 179, ISO. Bae. Abr. 
 
 (0 Ante, 216. Co. Lit. 303. a. Pleas, I. 5.
 
 519 OF PLEAS IN BAR. 
 
 It Qualities, if a surrender be by acceptance of a new lease, it is not suffi- 
 cient to say that the lessee being possessed by a former lease, 
 the lessor demised to him, but the plea should be that the les- 
 see surrendered, and then that the lessor demised, or that the 
 lessor entered and demised. (w) An argumentative plea is aid- 
 ed after verdict, and upon a general demurrer.(j?) It is saicj 
 that there is this sort of affinity between an argumentative plea, 
 snd a negative pregnant, that as the latter is a negative preg- 
 nant with an affirmitive, so the former is an affirmative pregnant 
 with a negative, and that the cure for both is in most cases to 
 add or at least to substitute a direct denial of the substunce and 
 gist of the declaration or pica which is to be answered,(j/) 
 7th]y. Must 7thly. Every plea should be so pleaded as to be cuftablc of 
 
 xi-vl'!^^ "* trial, and, therefore, must consist of matter of fact, the ex- 
 istc7icc of which may be tried by a 7 wrj/ on an issue, or its suffi.- 
 ciency as a defence may be determined by tlie court upon de- 
 murrer ; or of matter of record, which is triable by the record 
 itself ;(x) and if fact be improperly complicated with matter of 
 law, so that it cannot be tried by the court or jury, the plea is 
 
 * 520 *bad, as if the defendant plead that Alavjfully enjoyed the goods 
 of felons, it will be bad, for the jury cannot determine whether 
 he lawfully enjoyed, nor the court whether he mfact enjoyed, and 
 the plea should have stated the particular facts and title by virtue 
 of which ^ did enjoy. (a) So if the condition of a bond be that 
 he will shew a sufficient discharge of an annuity, it is bad if he 
 plead that he shewed a sufficient discharge ; for the jury cannot 
 try whether it is sufficient, and he ought to have shewn what 
 discharge he gave in order that the court might judge whether 
 it was suffi.cient ;(A) but where the effect of the words repre- 
 sent a matter triable, it is sufficient, though according to the 
 precise words it be not triul)le, as in covenant for quiet enjoy- 
 ment, free from arrears of rent, a pica that he delivered mo- 
 ney to the piaintilT with intent that he should therewith dis- 
 charge the arrears, will be sufficient though the intent is not 
 
 (w) Com. Dig. SuiTL-nder, N. (;) Co. Lit. 303. b. Com. Dig. 
 
 {x) Com. Dig. Pleader, E. 3. Al- Pleader, E. 34. 9 Co. 24. b. 25. a. 
 
 leyn, 48. 2 Saund. 319. n. fi. (a) 9 Co. 25. 
 
 ( j^) 3 Keeve's Hist. -135. Eac. Abr. {b) 9 Co. 15. a. et vide 6 P'ust, 
 
 Pleas, I. G, 561, 562.
 
 THEIR QUALITIES. ~ 52Q 
 
 triable, for it is equivalent to the allegation that the defendant //. Qualities. 
 delivered the money to pay.(f) A 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 
 matter, it might be necessary to award a repleader. 
 
 Sthly. Every plea should be true and capable of proof, for as 8thly. Must 
 it has been quaintly said, truth is the goodness and virtue of ^ '"^" 
 pleading, as certainty is the grace and beauty of it, and if it 
 appear judicially to the court on the defendant's own shewing 
 that he hath pleaded a false plea, *this is a good cause of de- ^ 591 
 
 murrer;(rf) as where the defendant pleaded to debt upon bond 
 conditioned for performance of covenants contained in an in- 
 denture, which he pleads with a profcrt^ that there were no 
 covenants contained in the indenture, and upon oyer by the 
 plaintiff, it appeared that the deed did contain divers covenants 
 on the part of the defendant, the plea on demurrer was held 
 insufficient. (y) Sham pleading was, as we have already seen, 
 formerly considered a very culpable abuse of the justice of the 
 court, and was set aside with costs, and the parties concerned 
 in it were censured and othei'wise punished according to the 
 discretion of the court ;( g) by the modern practice, however, 
 many false or sham pleas, though they delay the cause, are 
 allowed, but they are not encouraged. (A) 
 
 The rules which prevail in the construction and allowance of Pules of con. 
 
 , . , , rT>. • • I 1 . . struction, &c. 
 
 a plea m bar are, 1st. Ihat it is to be construed most strong- 
 ly ag'.iinst the defendant; 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 1st. Constmc- 
 wiU, state his case as favourably for himself as possible, and the plea, 
 that if he do not state it with all its legal circumstances it is 
 
 (c) 4 Mod. 249. (5) Ante, 505. Bac. Abr. Pleas, 
 
 {(l) Hob 295. Bac. Abr. Picas, G. 4. 2 Wils. 304. 
 
 G. 4. Cauipb. N. P. 17G. 2 Wils. {h) Ante, 505 Campb. X. P. 176. 
 
 394. Salk, 517. 
 (/) I Saund. 316, 317 I Saund. 
 
 9. b. n. 1.
 
 521 OF PLEAS IN BAR. 
 
 Ruku of coil' not in fact favourable to him, it is a rule of construction that u 
 v^ C99 pltja which *has two intendments shall be taken most strongly 
 against the defendant ;0') therefore, in trespass if the defend- 
 ant plead a release without saying at what time it was made, 
 it shall be intended to have been made before the trespass was 
 committed ',{k) so at common law if to a bond the defendant 
 plead payment, it sluill be intended to have been made after 
 the day appointed for payment, if he do not aver it to be other- 
 wise ; and in pleading a promise by a third person to pay the 
 debt of another, it must be slated to have been in writing. (/) 
 But this intendment in construction does not obtain where it 
 would be inconsistent with another part of the plea ;(w) and 
 there are some cases in which matters are implied in favour of 
 the plea ; thus it is said by Lord Coke^ that all necessary cir- 
 cumstances implied by law need not be expressed, as in the 
 plea of a feoffment of a manor, livery and attornment, are im- 
 plied \{n) 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 intend-.-d a lawful assignment, which is by metes 
 and bounds ;(g) and where a surrender of a lease for years is 
 pleaded, and that it was agreed to by the lessor, it is not ne- 
 cessary to say that he entered, for it shall be intended, and it is 
 not usual to plead a re-entry upon a surrender, any more than 
 it is to plead livery upon a feoffment :(/0 so where it is plead- 
 *" 523 ed tliat 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.(^) So if a man pleads that he is heir to Ay he need 
 not say either that A is dead, or had no son.^r) 
 '2dly. Bad in 2dly. If an entire plea be bad xt\ part, it is insufficient for the 
 wiiole. '' ' ' whole. (s) We have already in part considered this doctrine in 
 considering that a plea must contain an answer to all it assumes 
 
 (i) Com. D;-. Pleailei", E. C. Co. (0) Com. Dig. Pleader, E. 9. 
 
 Lit. 303. b. riowc'.. 29. &c 4G. Aiile, (/>) Ci-o. Car. 101. 
 
 '241,242. ((/) Ci-o. Eliz. 53. Palm. 357. S. P. 
 
 {!c) P[o\^t]. 46. (r) Ual. 6r. 1 Leon. 1S4. c. 7. 2 
 
 {I) Ante, 30.5. 1 Saurul. 275. a. Saund. 505. b. n. 13. 
 
 (?n) 10 Co. 59. b. Ante, 241. (s) C. D. Pleader, E. 36. 3 T. R. 
 
 00 Co. Lit. 303. b. S. P. Cro. 376. 3 B. &c P. 174. 1 Saund. 337- 
 
 Eliz. 401. n. 1. Cgv-'p. 133.
 
 THEIR QUALITIES, See. 523 
 
 to answcr.c^) In assumpsit on several proniiseci in ctitrcreat Jfvirt of cnn- 
 . , , , ^ ,. . . , strvcuoiiy^j::- ■ 
 
 counts, if the defendant plead the statute ot limuiUions to the 
 whole, and il is a bad plea as to one of the counts, it will also 
 be insufficient as to the residue, (u) and in an action against an 
 executor or administrator if the defendant plead several judg- 
 ments, 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 
 W'hole ; but if the judgments pleaded had been against the 
 testator, it would be otherwise. (tO In one Case, however, it 
 was held that if one of the judgments pleaded Avas against the 
 testator and a third person, and the defendant does not shew 
 that the testator survived, without which tlie executor is not 
 chargeable, the plea is bad for the whole ;(w) but the proprie- 
 ty of this decision was questioned by Lord V(titghaJi.{x) *So if * 524 
 several persons join in one plea, if it be bad for one, it is also 
 bad for the others \{y) the extent of this rule A".ill be consider- 
 ed under the head of pleading by several defendants. (t) I'he 
 statement of several debts in a plea of sct-oif is an exception, 
 and if one of such debts be insufiicicnt, the pluiniitV must not 
 demur generally. («) 
 
 3dly. The rules with regard to surplusage and unnecessary ,^<Hy. Sm-pl'i-s- 
 ailcgations in a declaration also prevail in general with respect pu^„a^c•,^ '^ 
 to pleas and every other part of pleading •,{b) and if either 
 party, plaintiff or defendant, allege more than is necessary to 
 introduce new matter, repugnant and contradictory to what 
 went before, in any point not viatcriul., this will not vitiate the 
 pleadings, according to the maxim, utile jier inutiit- non viiia- 
 tur i and such redundant or repugnant part shall be rejected, 
 especially after a verdict. (c) Thus if the defendant in reple- 
 vin make conusance as bailiff' to J, administrator of B, where 
 ./ might have distrained in his own right, the words " admi- 
 
 (/) Ante, 509. " (?') :■> T. R. 377. 
 
 \u) 1 Lev. 48. (:) Post. I Sauiid. '2S. n. 2. 
 
 (r) 1 Saund. 357. b. ? T. R. 80. («) -2 HI. Kep. 910. 
 
 .(•7. ih) Ar.te, '2,>2— 2^4. 
 
 (7p) 2 Saund. 50, 51. n. 4. 1 Saund. (f) llac. Abr. Picas, I. 4. Com 
 
 337. n. 1. • Di;,'. Pleader, E. 12. Co/Lit. .30.3. b. 
 
 (.r) 1 Saund. 337. a. 2 Sauud. .'505, ."OG. n. 1 i. id- 291. 
 
 Vol. I. [ -^8 ]
 
 524 OF PLEAS IN BAR. 
 
 livles of con- " iiistrator of B," shall be I'ejected as ^urplusage.(rf) There 
 ' is, however, considerable danger in surplusage in the state- 
 ment of material matter ; for where a parly takes upon 
 himself to state in any pleading a substantive averment, 
 or alleges a precise estate, which he is not bound to do, 
 if they be material and bear on the question, he gives the 
 
 '^' 5^5 other side the Hdvaniage of traversing it ; thus in *Leake'* 
 case,(d') it was necessary that the plaintiff should shew 
 that !ie had some right to put his cattle into the close against 
 wiuch the cUfendunt was ijouiid to repair the fence, but a semn 
 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 ;(/") the plain- 
 tiff", however, thought proper to allege, that the right he had 
 arose from a stisin infee^ therefore the defendant was at liber- 
 ty 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 cisejrg-) the ground of the plaintiff's action was, 
 that the defendant would not permit him to cut down the re- 
 piaining 200 trees. In order to shew that so many trees were 
 left standing in the wood, he staled, that at the time of the 
 agreement he had cut down only 800 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 shew 
 the damage winch the plaintiff had sustained by the defend- 
 ant's refusal to permit him to cut them down, he gave the 
 defendant an advantage of traversing it.(^) It seems, there- 
 fore, that a too precise or particular statement of material 
 matter may be taken advj^ntage of upon the tiial of a traverse 
 thereof, but in general not by demurrer, as the objection does 
 
 * 526 ■ ^lot appear upon the record, but depends upon the *evidence, 
 except where it is repugnantor contrary to matter precedent,CO 
 and though such repugnancy may not, in some cases, be aided 
 
 (f/) Hob. 208. (^0 Ydv. 195. 
 
 (e) Dyer, 365. 2 Saund. 206. a. ii. (A) 2 Sauml. 207. n. 24. 206. n. 22. 
 21, 22. n. 24. 2 East, 452. 
 
 ( /■) 1 Saund. 346. n. 2. (?) Co. I.it. ."03. b.
 
 THEIR FORM AND PARTS, 526 
 
 tiy Verdict,(^') yet if it appear that a verdict was given on ano- nvjea of con- 
 ther part of the plea, the mistake will be aided.(A-) "tnmhn, ^c. 
 
 III OF THE FORMS AJ^'D PARTS OF PLEAS IjY BAR. 
 
 The forms of the various pleas in bar, which usually occur 
 in practice in particular actions, are given in the following 
 volume, but there are some rules which govern the structure 
 of picas in general, which it may be advisable here to inquire 
 into. The parts of a pica in bar may be considered with re- 
 ference to 
 
 '1st. The title of the court in which it is pleaded. 
 2dly. The title of the term. 
 3dly. The names of the parties in the margin. 
 4thly. The commencement ; which includes the statement of 
 
 1st. The name of the defendant ; 
 
 2dly. The appearajice ; 
 
 3dly. The defence ; 
 
 4thly. The actio-ron., being either a general or par«- 
 tial denial of the right of action. 
 othly. The body : which may contain 
 
 1st. Inducement. 
 
 2dly. Protestation. 
 
 odly. The ground of defence- 
 
 4thly. Qtix est eadan. 
 
 5thly. Ti averse. 
 6thly. The conclusion. 
 
 •These will appear fram the following form ; * 527 
 
 In the King's Bench. 
 
 „ _ Michaelmas TerrriK 49 Geo. III. 
 
 ads. LAnd the said Richard., by E F., his attorney, (or "in his ^ 
 jDae J •• own piopcr person,") cornea and defends the wrong, 
 (or, in trespass, ' • force,") and injury, tuhen., &c. and says, that the 
 said John ought not to have or maintain his aforesaid action 
 
 (./) Bar. Abr. Pleas T. i. (l-) Id. ibid.
 
 527 OF PLEAS IN BAR. 
 
 III. Form (hereof ugaiasv Iiini, because lie says tliEit, Jkc. {here foilowa the 
 and partj. 
 
 gVijiLnd of defence, cnid occasionally a/i inducement.^ pro( e station .^ 
 
 or travcrae is inserted, and the plea then concludes^ if to the conn- 
 try, as follows ;) And of this lie, the said Richard, puts himself 
 upon the couniry, Sec. or if the conclusion be with a veiifi- 
 cution, the form is thus : " and this he, the said Richard, is 
 " ready to verify, wherefore he prays judgment if the said John 
 ".ouglitto have or maiiituin his aforesaid action thereof against 
 '« him," Sec. 
 Isi. Title of It is usual, at the head of the plea, to state in ivhat court 
 the coiui. jj. jg pleaded, as ''in the King's Bench," or, " in the Common 
 " Picas," or "in the Exchequer," 8cc.(6) But it is apprehend- 
 ed that the omission would not be material, and that the plea 
 would be consitlcrcd as having reference to the declaration, 
 which must necessarily have been in the same court as the 
 plea. 
 Qdly- Title of With respect to the title of the term,{c) pleas to *the juris- 
 diction, or in abatement, must, as we have seen, in general be 
 entitled of the same term as the declaration ;(f/)but pleas in bar 
 may be, and usually are entitled of the term of which they are 
 pleaded, which is frequently subsequent to that of which the 
 declaration is entitled, (f) and where matter of defence has 
 arisen after the first day of the term, the plea should be enti- 
 tled speciiilly of a subsequent day.(y) 
 3(Ily. Tlio The names of the Jtarties i?i the margin do not strictly consti- 
 tute any part of the plea. The surnames only are usually in- 
 serted, and that of the defendant precedes the plaintiff's, as 
 " Roe ads. Doe"( jf) They should correspond with the 
 names in the declaration, or if the defendant plead in abate- 
 ment or bar, by another name to that in the declaration, the 
 difierence should be specified in the margin, thus, " C D, sued 
 " by the name of £ D, ads. ^i BJ\h) It has been recently de- 
 cided, that it is sufficient in a qui ta-in iiCiion to entitle the plea 
 
 term. 
 
 * 528 
 
 names of the 
 parties 
 
 (6) See the forms, post, vol. '2. 405. (/) Post, vol. 1. 421. And see 
 
 409. 411. also a suggestion after Imparlance, 
 
 (c) See the forms, post, vol. iJ. 405. post, vol. 2. 406, 407. 
 
 40y. 411. {g) Post, vol. 2. 409. 
 
 (,/) Ante. 4.:r, 448. ■ {h) Post, vol. 2. 410. 416, 417. 
 
 (e) Bac. Abr. Piea.s, C. 2. 2 Saimd. 
 •1. f. 2. a. h. «■-(!.
 
 THEIR FORM AND PARTS. 52S 
 
 of nil debet with the names of the parties as above, without the ///. Form 
 udclition oi qui tam^ &c. to the plaintiff's nanie.(/) "'" parts. 
 
 \Vith respect to the commencement^ and first the name of the 4thly. The 
 defendant, we have ah'eady seen that when the defendant pleads mcut. " *"* 
 misnomer in al)atement, a plea commencing with the words, 
 " And the aaid Richard sued by the name of Robert" or thus, 
 " and he against whom the *plaintiff hath exhibited his hill by , * 529 
 the name of J S, Sec. is insuf!icient."(7) A plea in bar also com- 
 mencing in the same manner, would be bad on demurrer,(Xr) 
 and therefore when the defendant is sued by a wrong name, and 
 ^vishcs to defend in his riglit name, his plea should begin thus : 
 " And C jD, against whom the said ^ B hath exhibited his 
 " bill by the name of E D, comes and defends the wrong and 
 " injury when," SccC/) 
 
 After the names of the parties in the margin, the defend- 
 ant's afifiearance and defence {venit et defcndit vim et injuricuii) 
 arc to be stated ; some observations have already been made on 
 these parts of pleading. C/'^) The appearance may in general 
 be stated to have been made eitlier in jierson or by attorney.^ for 
 a defendant is still at liberty to appear and defend in person, 
 and this is usual in an action against an attorney or prisoner ;(n) 
 and as ^fcme covert when sued alone, is incapable of appoint- 
 ing an attorney, she should defend in person ;(o) an idiot also 
 should appear in person, and it is said tliat any one who can 
 make a better defence, shall be admitted to defend for him ; 
 but a lunatic, or one who becomes 7ion compos mentis^ must ap- 
 pear by guardian, if he be within age, and by attorney if of full 
 *age.(/0 An infant must plead by guardian, and not by at- ^ 539 
 torney ov firochein a?}iy,{q) and if he, wliether in the case of a 
 sole or several defendants, plead by attorney, it would be er- 
 ror,(r) and therefore the plaintifl' must take out a summons to 
 
 (/) 7 Easi, 333. Post, vol. 2. 4.>9. 41'2. See the form, post, vol. 2. 409. 
 
 I J) Anlf, 411, 4l'2. Post, vol. id. 4'25. 
 410. 5 T. II. 487. 8 T. R. 515. (/>) Id. ibid. 4 Co. \-2<. b. 2 Saund. 
 
 (^•) 3 Wils. 4i.5. 33.'5. n. 4. 335. Bac. Abr. Idiots aud 
 
 (/) Post, \ . 1. 2. 410. 3 Wentw. 210. Luiuitics. 
 
 (w) Ante, 413 to 4l4. {q) Ante, 412. 2 Saund. 117. b. i\. 
 
 (w) Sayer, 217. 1. 95, 96. n. 2. Post, vol. 2. 410. 42 i 
 
 (0) Co. Lit. 125. b. 2 lust. .390. (;) 2 SaHUfJ. 212. n. 4 
 F. N. B. 27. 2 SuKHd. 209. c. Ante,
 
 530 <^>F PLEAS IN BAR. 
 
 J II. Form compel him to appear by guardian, and to alter his plea, or for 
 leave to do it for him.(.v) A plea by a corporation aggregate, 
 ■which is 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 attorney .(«) The plea should also be in 
 the name of an attorney of the proper court ;(f ) but though the 
 appeurance has been entered in the name of an agent to a country 
 allorney, the plea may be in the name of the principal attor- 
 ney •,{%v) it ought not, however, where there are several attor- 
 niesin partnership, to be in the name of the firm, but only in 
 the nanie of one of them.(jr) We have already stated the 
 signification of the term defence^ its nature, and the form of 
 it in a plea in bar.(i/) Eveiy plea in bar should begin with the 
 rfeftnce;(-) and it should seem that if the defendant plead 
 only to part, and confess the residue, the defence should be 
 
 * 531 confined to the *part intended to be pleaded to, and not cover 
 the whole. ('i) 
 
 In a plea of the general issue, or other plea in bar to the 
 whole declaration, which merely denies what is alleged in the 
 declaration, and does not introduce any new matter, it is not 
 usual to insert the allegation, •' that the plaintitf ought not to 
 «' have or maintain his aforesaid action against the defendant," 
 but after stating the defendant's appearance, and his defence ; 
 the plea immediately denies the matter stated in the declara- 
 tion, and concludes to the country. (/i) But special pleas, after 
 stating the appearance and defence, begin with this aliegaiion, 
 actio non habere debet^c) which always alludes to the com- 
 mencement of the action, and not to the time of the plea.(c?) 
 In debt on a bond, if the defendant, by his plea, deny tlie vali- . 
 dity of the deed, or if an heir plead rien Jier descent, the defend- 
 
 (s) 2 Wils. 50. 2 Saiind. 117. f. 3 Lev. 240. Com. Dig. Abatement, I. 
 
 (t) Bro. Abr. Corporation, 28. Co. 16. 
 
 Lit. 66. b. Com. Dig. Pleader, 2 B. (z) Com. Dig. Pleader, E. 27. 3 
 
 2. B. k P. 9. a. Co. Lit. i'-'7. b. Ante, 
 
 (m) 2 Saiiiul. 219. Cora. Dig. Plead- 412 to 4l4. 
 
 er, 2 A. Post, vol. 2. 409. (a) T.om. Dig. Pleade,-, E. 27. 
 
 (t») Barnes, 259. (6) Salk. 516. see the form, post, 
 
 (xr) 3 B. k P. 111. Barnes, 239. vol. 2. 42,3. 
 
 (x) 4 East, 195. (c) Salk 211. Po<;t, vol. 2. 421. 
 
 ly) Ante, 412. And see fiullier, {d) 3 T. R. IS6. 4 East, 502,
 
 THEIR FORM AND PARTS. 531 
 
 ant should say onerari non debet, and not actio non,fe\ and in this ^JT. Form 
 • •II •! • 1 • • • and partt. 
 
 case the pica should describe the deed as a ivnting, or sup- 
 posed writing obligatory, and should not admit that it is a 
 deed.(y) In replevin, if the defendant say he avcU avows., in- 
 stead of well acknowledge.^ the caption, no objection can be ta- 
 ken. (g") When the matter of defence arose before the com- 
 mencement of the suit, actio non, &c. is generally the proper 
 commencement ; but no matter *of defence arising after action * 532 
 brought, can properly be pleaded generally, but ought to be 
 pleaded in bar of ihc further maintenance of the suit,(/!) and if 
 the matter of defence arise after issue joined, it must be plead'-- 
 ed /mis darrein coniinuance,(i) and if it arise after trial, an audi- 
 ta querela is the only remedy. In an action against husband 
 and wife, both must defend and join in the plea, or the plaintiff 
 should demur, or there should be a repleader, although the ac- 
 tion be merely for the tort of the \vife.(^') Where the plea is 
 only to a part of the declaration, it must not cover the whole de- 
 claration, but must ascertain the part to which it is applied, or 
 the plaintiff may demur ;(A-) thus in assumpsit on several pro- 
 mises, if the defendant plead quoad, all except 4/. non as.sump.' 
 sit, and a tender of the 4/. and does not shew as to which pro- 
 mise the tender was made, it is insufficient ;(/) so in dei^t for 
 rent against the assignee of a term, if he plead nil debet, as to 
 20/. part of the rent, and as to the residue that he assigned 
 over the term, he must shew when the 20/. became due.(w) 
 The mode of pleading in these cases is thus : " And the 
 " said C Z>, by J''. 7-', his attorney, comes and defends the 
 '■' wrong and injury, when, &c. and as to the said first count of 
 " the said declaration," or if in covenant, " as to the said ^ rn<> 
 
 '' supposed breach of covenant first above assigned," or if in 
 ircsjiass, " as to the breaking and entering," &c. (enumerating 
 the particular trespasses mentioned in the declaration, and in- 
 
 (e) 2 Saund. 290. n. .3. L<1. Itaym. {h) 4 East, 502. I'ost, vol. 2. 421. 
 
 217. 2Salk. 51G. Post, vol. 2. 4G2. (/) M. ibid. Post, vol. 2. CrC, 677. 
 
 n. r. (.;■) Com. Dig. Pleader, 2 A. e. 
 
 (/) 1 Saund. 290. n. 3. 291. n. I. do. Jac. 2SS. 
 
 Ld. Raym. 1541. 2 Roll. Rep. 140. {k) Com. Dig. Pleader, E. 27. 1 
 
 Post, vol. 2. 4C2. Com. Dig. Pleader, Sid. . 338. Lutw.24l. B.kP. 174. 
 
 E. 27. (/) Lutw. 241. See the proper 
 
 (5-) Cro. Jac. 373. I Saund. 347. form, post, vol. 2. 431. 
 
 c. n. 4. (wi) 1 Sid. 538.
 
 / 
 533 ^ PLEAS IN BAR. 
 
 in. Form tended to be justified) " l/ie said C D soya that the mid A B 
 "' oiii^iU not to have or maintain hin aforesaid action thereof against 
 hinif because he says ^/w?,"i7'c.(70 and a.t common law, before the 
 statute of ^^Jin. which introduced several pleas, it was usual, 
 puiticuiurly in actions of trespass, for the defendant to plead as 
 to the force and arms, and whatever else is against the peace 
 of the king, not guilty, and as to the residue of the supposed 
 trespasses, a justification. (o) In actions of trespass to person- 
 al or real property, containing several counts, varying tlie state- 
 ment of the injury to the same personal chattels, or the same 
 closes, it is usual, in order to save the expense of several dis- 
 tinct pleas to each count, to render the plea applicable to all 
 the counts ; in this case the trespasses complained of in the 
 different counts, and which are intended to be justified, are first 
 enumerated in the introductory part of the plea, and then fol- 
 lows the statement of actio ?wn., &c. and it is tlien alleged that 
 the close and grass, 8cc. mentioned in the first count, and tlie close 
 and grass Sec. mentioned in the last count, at the several times 
 when, Sec. were the same close and grass, Sec and not other or 
 diHerent, and that the seizing and taking, 8cc. mentioned in the 
 first count, and the seizing and taking, 8cc. mentioned in the 
 last count, are the same, and not other or difiercnt.(/?) But 
 
 ^' 534 *thcsc allegations arc traversable, and it may be questionable 
 
 whether this mode of pleading can in strictness be supported ; 
 but where it is certain tliat the difi'erent counts are for the 
 same trespass, it may be advisable, in order to save oipense, 
 to risk this concise mode of pleading, 
 athly. The With respect to the bodi/ of the jdea^ which states tl-iC sub- 
 
 nleas. ^ stance of the defence, it must necessarily depend on the ciicum- 
 stances of each particular case. The forms of those pleas 
 which usually occur in practice, are given in the second vo- 
 
 («) See the form, post, vol. 2. 422. see Cro. Eliz. .355. 493. 1 Saund. 299. 
 
 .529. Sec. c. Vin. Abr. Trespass, U. a. 4. pi. 9. 
 
 (o) See the entries, 1 Sauinl. 10. fi-om which it appears that after a 
 
 24. S-2. 2'J6. Post, vol. 2, 519. j)laintifF has new assigned another 
 
 (^p) See the forms. Pleader's AssiPt- close, tlie defendant cannot plead that 
 
 ant, 401. post, vol. 2. 5.57. 9 Wentw. they are one and the same. In every 
 
 47. 57. And see Sheldon v. Clip- count, the closes, kc. are stated to he 
 
 .'iliaw, Sir T. T'laym. 449. where a plea otliev closes, &c. ante, 307. 
 of this nature was held sufliciept, but
 
 THEIR FORM AND PARTS. 534 
 
 lume, and the qualities as to certainly of lime, place and other ///. Fomaiid 
 circumstances, have already been considered. As a {irotcstan- -''" ^*" 
 do,(g') and a/hrmal traverse^{i-) more frequently octur in repli- 
 cations, we will postpone the particular consideration of them, 
 till that part of the work. In point of form in trespass and 
 other actions, when the plea necessarily states the trespass to 
 have been committed at some other time or piuce, than that 
 laid in the declaration, it is proper, immediately preceding the 
 conclusion of the plea, to allege that the supposed trespasses 
 mentioned in the plea, are the same as those whereof the plain- 
 tiff hath complained, which allegation is usually termed rjiix 
 est eadenif and in that case the *plea also concludes with a tra- * 535 
 verse of having been guihy at any other time or place, or the 
 plaintiff may demur.(r) But when it is unnecessary, and con- 
 sequently improper to vary from the time or place laid in the 
 declaration, the rju<e est eade7n need not be inserted ;(«) and in 
 that case if a traverse were added, the plea would be demurra- 
 ble, (0 though if the traverse were defective, it Avould be re- 
 jected as surplusage. (z<) 
 
 Every plea in bar must have its proper conclusion, (v) whicTj fithly. The 
 is either to the countiy, or with a verification, and the latter is 
 either of matter of fact, or of matter of record. An avowry 
 or cognisance in replevin, in which the defendant is an actor, is 
 an exception to this rule, and need not have any conclusion. (-Ty) 
 In an action against husband and wife both should join in tiie 
 concluding part of the plea.(x) 
 
 When there is a complete issue between the parties, viz. a 
 direct affirmative and negative, the plea sliould conclude to the 
 country ;(y) as when the general issue is pleaded, or where llie 
 defendant simply denies some material fact alleged in the decla- 
 
 (fj) Cora. Dig. Pleader, N. Post, (0 '2 Sauiid. 5. n. 3. Com. Dig. 
 
 Tol. 2. 644. Pleaiicr, E. 31. 
 
 (r) Coin. D;-. Pk'ndcr, G. 1. &c. («) Salk. 641, 642. 
 
 Post, vol. 2. 651. {v) Com. Dig. Pleader, E. 28. &c- 
 
 (r) Com. Dig. Pleader, E. 31. Cro. Co. Lit. 303. b. 
 
 Jac. 3r'2. 2Sannd. 5. n. 3. Seethe (w) I Saund. 348. n. 7. Co. Lit. 
 
 form, post, vol. '2. 5.30. 551. Cowp. 303. a. Plowd. Com. .34:2. lo3. a. 
 
 162. 1 Sauml. '297. (.r) Com. Dig. PLeiuler, C A. ?. 
 
 (s) Skin. 3S7. Cora. Dig. Pleader, Cro. 594. 
 
 K. 31. CaiUi. 281. 0/) t Saund. 105. n. I. Com. Dig- 
 Pleader, E. 3'2. 
 
 Vol. I. [ 49 3 
 
 caucKision. 9^ 
 
 %■
 
 535 OF PLEAS IN BAR. 
 
 ///. Formand. ration, as where the plaintiff decUires in assumfisit on anawardj 
 ^^"' *■ and the defendant pleads no such awards the plea must conclude 
 
 * S'oG t^ the country. (i) And this conclusion seems proper, *although 
 the plea unnecessarily contains a formal traverse ;(a) and a plea 
 in bar of rien in arrere to an avowry for rent should so con- 
 clude ■,{.b) and this rule equally prevails whether the affirma- 
 tive be first in the pleading, and the negative subsequent, or 
 vice verfia,{c) Lord Holt having declared that there is no dis- 
 tinction in this respect ; and therefore though the negative be 
 asserted by the plaintiff, and the affirmative by the defendant, 
 as wnere the plaintiff in his declaration alleges a breach in non- 
 pay nnent of a sum of money on a particular day, or in not re- 
 pairing, &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 general, and no particular 
 breach be assigned, a plea of performance of the condition 
 must conclude with a verification. (d) So where a plea puts in 
 issue matter of fact as well as matter of record, it should con- 
 clude to the country, as if it be alleged in a declaration, that the 
 pU.iniifi" procured letters patent, and the defendant plead that 
 the pi.iiniiff did not procure, because the procurement is 
 the principal point in issue ; so if the issuing of a Jieri facias 
 and a levy under it be put in issue. (t^) And if a plea conclude 
 ■with a special negative to the affirmative in the declaration, it 
 should conclude to the country, as for instance in debt on a 
 bond, the allegation in the declaration of the making of the 
 ^ 537 bond, includes *the allegation of the delivery as a deed ; and 
 therefore, if the defendant plead that he delivered the deed as 
 an escrow, he may conclude to the country. (/") But where 
 there is not a direct negative and affirmative, the 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 ac- 
 ,count, and the defendant plead that he accounted in manner 
 
 '^^ (z) Com. Dig. Pleader, E. 32. 2 (f) Carth. 88, 89. Com. Dig. Plead- 
 
 Sauiid. 337. n. 1. 196. and I Saund. er, E. 32. 
 
 103. n. 1. (rf) Id. ibid. 
 
 (fl) 1 Saund. 103. b. Com. Dig. (e) 3 Mod. 70. Com. Dig. Pleader, 
 
 ^ Pleader, E. 33. E. 32. Sayer's Rep. 208. 299. 
 
 (6)Ld. Itaym. 641. Post, vol. 2. (/) 1 Salk 274. 4 Esp. Rep. 255. 
 
 631. Com. Dig. Pleader, E. 32. Post, vol- 
 
 2. 462. 

 
 THEIR FORM AND PARTS. 537 
 
 following, viz. that he was robbed of it, and gave notice to the ill. Form and 
 plaintiff, tiiis plea giving colour to the plaintiff, and referring /'"'''*• 
 the sufficiency of the mode of accounting to the court, may 
 conclude with a verification. (^) And where the declaration is 
 founded on matter of record which is traversed in the pica, it 
 should not in general conclude to the country, but should al- 
 lege that there is no such record, and usually concludes with 
 a verification, and prayer of judgment, si actio, Scc.(/i) but a 
 verification appears to be unnecessary in this case as the plea 
 is in the negative, (/) and if an action be brought here, on a 
 judgment in Ireland., the plea of nul ticl record.^ must conclude 
 to the country. (X:) 
 
 It is an established rule in pleading that whenever 7ienD mat- 
 ter is introduced on either side, the pleading must conclude 
 vjith a verification or averment:^ in order that the other party 
 may *have an opportunity of answering it.(y) The usual ve- * 533 
 rification of a plea containing matter q{ fact runs thus : " and 
 " this the said defendant is ready to verify, wherefore he prays 
 " judgment, if the said plaintiff ought to have or maintain his 
 " aforesaid action thereof against him," &c.(r) and if the 
 word certify be inserted instead of verify, no advantage can 
 be taken of the mistake. (s) An avowry, we have seen, does 
 not require any conclusion,(?) and a plea of bankruptcy, though 
 introductory of new matter should conclude to the country ;(«) 
 and where one of several facts in a declaration is denied with 
 a formal traverse, the plea may conclude with a verification or 
 to the country .(d) If matter of record be pleaded as a judg- 
 ment recovered, for the same demand, Sec. the plea should 
 conclude with dt. firout fmtet fier recordum, and a verification by 
 the record, and if several records be pleaded, they should be 
 
 (.5-) 2 Lev. 5. Com. Dig. Pleader, lliere cited. Com. Dig. Pleader, E. 
 
 E. 3tJ. 3.3. 
 
 (//) Post, vol. 2. 488. 2Wils. 114. (r) See the form, post, vol. 2. 422. 
 
 Lil. Ent. 182. 404. 473. (») Willes, 6. 
 
 (0 Fortes. 339. Com. Dig. Plead- (?) Ante, 535. 1 Saund. n. 7. 
 
 er, E. 29. Salk. .120. (u) 1 P. Wms. 258, 259. 10 Mod, 
 
 {h) 5 East, 473. 2 Smith's Hep. 160. 247. Fortes. 334. Barnes, 330. 
 
 25. ' 4T. U. 15G. 3B.«P. 171. 
 
 (7) 1 Saund. 103. n. 1. and Cases (r-) 1 Sauad. 10.3. Com. Dij. Plead, 
 
 er, B. 3,?.
 
 538 OF PLEAS IN BAR, 
 
 In. Form and respectively verified \{w) but if mutter of fact as well as mat- 
 ter of record be put in issue, the trial may be by jury, and the 
 plea may conclude to the country. (x) To a ficire fucias upon a 
 recognisance at^jinst bail in error, if the defendant plead that 
 the judg'ment is pending and not determined, he need not con- 
 
 ^ 539 elude prout *patet, 8cc. the plea being in the negative. (2) 
 
 Where the plea contains a verification, it generally concludes 
 with a ftruyer of judgment in favour of the defendant, which is 
 termed the de^nand or fietiiion of the plea,(a} as " wherefore 
 " the defendant prays judgment if the said plainti^ ought to 
 " have or maintain his aforesaid action thereof against him," 
 Sec. This prayer ought to correspond with and be founded on 
 the premises in the plea ; and therefore matter of defence 
 arising afler the commencement of the suit should be con- 
 cluded with a prayer as to the further maintenance of the 
 suit :(A) so a pica in abatement which contains matter in part 
 abatement of the writ, should strictly be pleaded accordingly ;(c) 
 but a mistake in these cases (with the exception formerly no- 
 ticed in pleas in abatement)((^) will not vitiate, and the court 
 will ex officio give judgment in favour of the defendant, ac- 
 cording to the substance of the plea, without reference to its 
 conclusion. (f) In an rxtion of debt the defendant in pleading 
 a tender ought to conclude his plea, by praying judgment if 
 the plaintiff ought to have or maintain his action to recover 
 any damages against him ; for in this action, the debt is the 
 principal, and the damages are only accessary : but in assump- 
 sit the damages are the principal, and, therefore, in pleading 
 a tender in that action, the defendant ought to conclude his 
 
 * 540 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- 
 
 (w) Com. D!- Plea<'er, E. 29. («) 2 B. k P. 423. 2 Saund. 210. (3. 
 
 Wiiles, 120. See the Ibrais, post, 4 EksI, 502. 
 
 vol. 2. 438. (i) 4 East, 502. 
 
 (,r) Sayer, 208. 3i!!. HaL. 244. (c) 2 B. k P. 420. 
 
 Ante, 53G. {d) Ante, 445, 446. 
 
 (z) 2 Salk. 520, \e) 4 East, 502. 509. 2 B. & P 
 
 420. Plowd. 66. 2 Saund. 210. d.
 
 OF SEVERAL PLEAS. 54(j 
 
 payment thereof.(/) In pleadint^ matter of estoppel, the de- ///. Fumantl 
 fcndant in the conclusion of his plea should rely on 11.(5-) parts. 
 
 It was enacted by the statute of 4 ^mi. c. 16. s. 1. " that no 
 <' advantage or exception shall be taken of or for the want of 
 " averment of /loc fiaratus est veri^care, or hoc fiaratus est -ve- 
 " rificare per recordum ; or of or for not dW&'^xw'^ prout fiatet 
 " tier recordum^ or any other matter of like nature, except the 
 " same shall be specially and particularly set down, and shewn 
 " for cause of demurrer." Since this statute, a wrons^ or de- 
 fective conclusion, either to the country or with a verification, 
 Sec. can only be objected to by special deinurrer.(//) 
 
 We have already seen, when considering the qualities of a Of several 
 plea in bar at common law, and which still govern in the for- ^ 
 mation of each plea, taken separately, that it must be single, 
 and that duplicity will render it insufficient, and that the de- 
 fendant could not plead several defences to the same part of a 
 declaration :(/) but now it is enacted by the statute 4 Arm. c. 
 16. s. 4. Sc 5, " that it shall be lawful for any defendant or te- 
 " nant in any action or suit, or for any plaintiff in replevin, in 
 " any court of record, *vvith the leave of the same court, to ^ tLA\ 
 " plead as many several matters thereto, as he shall think ne- 
 " cessary for his defence ; provided nevertheless, that if any 
 " such matter shall, upon a demtu-rer joined, be judged iii- 
 " sufficient, 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 said defendant or tenant, or plaintiff in re- 
 " plevin, had a probable cause to plead such matter, which 
 " upon the said issue shall be found against him. Provided 
 " also, that nothing in this act shall extend to any writ, decla 
 
 (/) 2 Salk. 622, 623. 1 Ld. Raym. 6S. I Saund. 325. n. 4. Willes, 13. 
 
 254. Willes, 13. (A) 2 Si'und. 190. n. 5. Com. Dij 
 
 (^) Co. Lit. 303. b. Com. Dig. PKadci-, E. i:y. 32, ZZ. 
 
 Pleader, E. 31. Estoppel, E. Dul. (i) Ante, 512, 51?.
 
 541 OF PLEAS IN BAR. 
 
 Of several " ration, or suit of apiK'al of felony- Sec. or to any writ, bill, 
 " action, or inlormation upon any ficnai statute, (at) 
 
 The liberty to plead several pleas is confined to courts of 
 record, and therefore, if in the county court the defendant 
 plead two or more pleas, the plaintiff may demui' for duplicity. 
 And in courts of record the defendant cannot plead nun assumfi- 
 sit,(l) or non est/actu?n.(?n) to the whole declaration, and a ten- 
 der as to part ; for one of these pleas goes to deny that the 
 plaintiff ever had any cause of action, and the other partially 
 admits it ; and in the Common Pleas the defendant cannot 
 plead non as&umfisit^ and the stock-jobbing act,(ra) or non as' 
 sumjisit, and alien enemy. (o) Nor can the defendant plead 
 
 * .542 several *matters which require different trials, as in dower, ne 
 uncjues accou/iic en loyal matrimonie^ and ne ungues seisie que 
 dower,(/i) for the first mutter is triable by the bishop, and the 
 other by a jury, and if the former be found against the defend- 
 ant, the judge cannot certify that he had a probable cause of 
 pleading it. Nor is the king bound by this statute ; and where 
 he is plaintiff, the defendant cannot plead double without leave 
 of the Attorney-General. ((/) Nor does this statute extend to 
 any action or information upon a penal statute.(r) But with 
 these exceptions the defendant may, in different pleas, plead as 
 many different grounds of defence as may be thought necessary, 
 though they may appear to be contradictory or inconsistent, (s) 
 as in trespass, not guilty, a justification, and accord and satis- 
 faction. See. 
 
 When several pleas are pleaded under this statute, the se- 
 cond and subsequent pleas sliould, in strictness in the intro- 
 ductory part of each, state that it is pleaded " by leave of the 
 " court Jirst had and obtained" but ihe omission, though in- 
 technical and an irregularity, appears to be no cause of demur- 
 
 {k) The construction and practice (/>) 2 Rl. Rep. 1 157. 120" 
 
 upon this statute will be found in Go- (9) Willc.s, 533. Forrest's Rep. 
 
 rayns' Digesl, title Pleader, E. 2. & Exchequer, 57. A. D. 1801. 
 
 Tidu's Prac. 4tli edit. 601 to 609. (r) 2 Stra. 1044. Rep. temp. 
 
 (0 4 T. R. 194. Hardw. 2G'-'. 4 T. 1{. 701. 
 
 {in) 5T. R. 95. (s) See the instances. Com. Dig;. 
 
 00 1 B. & P. 222. Pleader, E. 2. 
 
 («.) Id. n. (rt). 2 B. & P. 72.
 
 BY SEVERAL DEFENDANTS. 542 
 
 rer ;(0 and if in fact no leave has been obtained, or it has been Of several 
 improperly obtained, the proper course is either to sign judg- ^ ^°'^' 
 ment, or to apply to the court to strike oui one of the pleas. (u) 
 Where there are several pleas, it is advisable, in order to avoid 
 prolixity *and expense, if practicable, to refer in subsequent * 545 
 
 pleas, to a statement of the same matter in a preceding plea, 
 the same as in the case of several counts in a declaration \{v) 
 but one plea cannot be taken advantage of to help or vitiate 
 another, for every plea must stand or fall by itself, unless ex- 
 pressly referred to by an appropi-iate allegation. (^y) 
 
 In general when the defence is in its nature joint, several dc' Of plens hy 
 fendants may join in the same plea, or they may sever ; and fondants. 
 one defendant may plead in abatement, another in bar, and the 
 other may demur ;(x) except in an action against husband and 
 wife, when the husband must join in the plea with his wife.(!/) 
 And by way of defence two may join, although the subject mat- 
 ter of their plea be several, as in an audita (juerela ;{z) and in tres- 
 pass against two for battery, they may jointly plead that the plain* 
 tiff assaulted them, and that they in self-defence beat the plain- 
 tiff, or they may sever ;(a) or they may jointly plead that they 
 were servants of A', and committed the assault in his defence ; 
 so where two justify an arrest by joint warrant. (6) Joint-te- 
 nants and coparceners mvist join in an avowry, and a cognisance 
 as their bailiff should be for the entire rent ;(c) but tenants 
 in common must sever, and the avowry of each must be de 
 una medietate *of the whole rent, and not of a certain sum ^ ca^ 
 
 which amounts to a moiety ; and when the action is against one 
 
 (OAnilr. 108. 1 Wils. 219. Cowp. (j/) Com. Dig. Pleader, 2 A. 3.— 
 
 500, .SOI. Sed vide 1 H. Bl. 2r.i. 278. Cro. Jac. 239. 288. 
 
 {u) Id. ibid. Ti<ld's Prac. 4th (:) Cio. Eliz. 473. 
 
 edit. 605. 1 B. 8c P. 415. (a) 2 Vin. Abr. 76. pi. 14. 
 
 (r) Ante, 39fi. Willes, 3S0. (6) 2 Vin. Abr. 76. pi. 15, 16. 
 
 (w) Willes, 380. (c) Bac. Abi-. Joint-tenant, K. — 
 
 (or) 2 Vin. Abr. 75. tit. Action, Replevin, K. 5 T. R. 246. 1 Lev. 
 
 Joinder, H. D. Com. Dig. Pleader, 109. Sir T. Raym. 80. 
 E. 55. 
 
 V
 
 544 OF PLEAS IN BAR. 
 
 Of pleas hrj of scvcral tenants in common, he avows for his own propoi'- 
 
 icvei'cd ik- . , . . • r 1 
 
 femlanis. tion, and makes cognisance as bailiff of hts companion for the 
 
 resichie,(rf) or he may avow only for his undivided siiare of the 
 rent ;(t') and if the action of replevin be against two tenants 
 
 » .r in common, they should join, one avowing and the other as his 
 
 bailiff making cognisance for an undivided moiety of the rent, 
 and then the one who first made cognisance avowing his own 
 right and the other who first avowed making cognisance as his 
 bailiff for the other undivided moiety ;(/) and if three tenants 
 in common distrain thirty beasts, it is said they should each 
 avow separately for ten ;(5') and one tenant in common cannot 
 avow alone, for taking cattle, damage -feasant^ but he ought also 
 to make cognisance as bailiff of his companion (A) And where 
 two persons are defendants in replevin they cannot make seve- 
 ral 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.(z) Several persons having 
 several estates, cannot join in prescribing, because the pre- 
 
 *■ 545 scription of one does not concern the other ;(>(■) though an *ex- 
 ception has been allowed where two persons commit a joint 
 trespass. (/) So personal defences as coverture, infancy. Sec. 
 should be pleaded separately ; and one of several defendants 
 may justify by command of another defendant, who pleads not 
 guilty, or suffers judgment by default, for his act shall not. take 
 away the ground of defence fiom his servant. (?w) 
 
 If two defendants join in a plea, Avhich is sufficient for one, 
 but not for the cfther, the plea is bad as to both, for the court 
 cannot sever it and say that one is guilty, and timt the other is 
 not, when they all put themselves on the same terms. («) Thus 
 it has been held that if an officer plead separately under a writ 
 of ^. fa. or other process, he need not state the judgment on 
 
 (rf) Id. ib:d. Post, vol. 2. 514. n. {JS) 2 Vin. Abr. 56. pi. 47. 76. pi. 
 
 o. 2 Vin. Abr. 59. pi. 27. 18. Sed vide 1 Saund. 348. 
 
 (£>) 5 T. R. 246. 2 H. Bl. .SS7. {I) 2 Vin. Abr. 76. pi. 18. Ante, 
 
 ( /■) Salk. 207. 5 T. 11. 247. 9. n. o. Sed qusere. 
 
 \s) Id. ibid. Co. Lit. sett. 314. (w) 2 Mod. 67. 
 
 317. («) 1 Sauud. 2S. n. 2. 3 T. R. 37&, 
 
 (A) 2 H. Bl. 386. 377. 1 Stra. 509. 994. 1184. 3 Wils. 
 
 (j) 5 Co. 19. a. 3S. b. 344. 3 East, 132, 133. 2 East, 263 
 
 4^
 
 BY SEVERAL DEFENDANTS. 545 
 
 ^vliich the writ was founded ; but if he join in the plea with Jiti snrral 
 the pliinum in the tonner 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 oHi- 
 cer ;(o) but this rule does not apply where the objection to the 
 plea is merely on account of surplusage ;(/?) and if several 
 executors join in the same plea of jUcne ad7ni>>islravif, 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 ^ 546 
 
 plead separately. (y) If the defendants join in the plea, and it 
 is in the singular number it will be bad on demurrer (r) The 
 plaintiff may, in an action in form ex delicto^ enter a nolle firo- 
 serjui as to one ;(4) but in actions in form ex contractu, unless 
 the defence be merely in the personal discharge of one, a nolle 
 prosequi cannot be entered. (/) If the defendants plead seve- 
 rally, the plaintiff may demur to one plea, and join issue on the 
 other,(u) and may in an action ex delicto afterwards enter a 
 nolle prosequi on the demurrer, and proceed against the other,(T;) 
 or if several issues are joined, he may enter a nolle prosequi to 
 one before or after judgment. (w) 
 
 As a defective declaration may be aided at common law by Defects when 
 the plea or by a verdict, (or) so a defective jilea may be aided in '''"^*'- 
 some cases by the replication or verdict ; and the statuie of 
 jeofails and that for the amendment of the law, also aid m.any 
 mistakes after verdict or judgment. (//) Thus an inforina! plea 
 in bar may be aided I)y tlie re/ilication^ as if in debt on bond to 
 make an estate to A, the defendant pleads that he enfeoffed 
 another to the use of A^ (which is not suHicient without shew- 
 ing that A was a party, or had the deed,) yet if *the plaintiff * 547 
 
 (o) Id. ibid. 2 East, 26.3. 270. 3 {u) Cro. Car. 239. '24.'3. Hob. 70. 
 
 East, 13-2, 133. 142. 3 Wils. 376. Com. Di;^. Plearler, E. 35. TiddV 
 
 ( l>) 3 T. U. 377. Prac. 4tb edit. 790. 
 
 \q) 1 Saund. 336. n. 10. (f) Id. ibiii. Wlicn nol, see 4 T. 
 
 (r) Lutw. 1531. Com. Dig. Plead- R. 360. 1 .Saund. 285. n. 5. 
 
 er, E. 35. (7:') Id. ibid. 
 
 (.<() Salk. 457. Tidd's Prac. 4lIi (.r) Ante, 401. 
 
 edit. 622. (w) Com. Dig. Pleader, E. 37, SS^ 
 
 (0 1 Wils. 89. .? Esp. Rep. 76. .39. Viii. Abr. tit. Rei-iication. 4 
 
 Ante, 32. Ann. c. 16. 1 SaUHd. 228. a. n. 1. 
 
 Vol. I. [ 50 J
 
 547 £)EFtCTS WHEN AIDED. 
 
 Defecta ivhen I'cply that he did not enfeoff, this aids the bar ;(2) so if the de- 
 mdcd. leiuiant plead an award without sufficient certainty, and the 
 
 phiintiff make a replication which imports the award to have 
 been made, it aids the uncertainty of the bar.(a) But a plea 
 which is substantially and altogether bad will not be aided by 
 the replication \{h') as if the defendant plead an accord, and 
 does not shew satisfaction, and the replication denies the agree- 
 ment, this docs not aid the bar.(c) A verdict also will fre- 
 ([ucntly aid a defective plea, as if in a plea staling a right of 
 common for cattle levant, and couchant^ the defendant after- 
 wards omit to allege that the cattle which he put on the locus 
 ill (juQ were levant and couchant^ and issue be taken upon the 
 prescriptive right, and it be found for the defendant, the omis- 
 sion of the allegation that the cattle were levant and couchanty 
 though bad on demurrer, will be aided by verdict ;(rf) but if 
 in pleading a right of common, it be too generally described 
 as to its commencement and determination, it would be insuffi- 
 cient even after verdict. (^) 
 
 (r) Cro. Eliz. 825. (rZ) Cro. Eliz. 458. Com. Dlj;. 
 
 («) Coin. Dig. P!e;ulei-, E. A7. Pleader, E. 58. 
 
 (/j) S Co. 120. b. '2 Wils. 150. (»-) a B. k P. 257. 
 
 (c) Com. Dig. Pleader, E. 37.
 
 548 
 
 CHAPTER VIII. 
 
 OF REPLICATIONS. 
 
 I 
 
 F when the defendant has pleaded the plaintiff perceive that General vb- 
 
 1 ^ !•• ..iiij'i serxKUiana. 
 
 he cannot support his action to any extent, he should either 
 
 obtain leave to discontinue ;(a) or he may enter a nolle firossqui 
 as to tlie whole or a part of the cuuse of action, (''^) unless there 
 has been a demurrer for misjoinder ;(c) and if where there 
 are several defendants in an action for a tort, or in an action ex 
 contractu^ where tlie plea of one of the defendants is merely 
 in his personal discharge, as bankruptcy, kc. the plaintiff may 
 enter a nolle firosecjui as to him.(f/) So where plcne adminifs- 
 travit has been pleaded, the plaintiff may take judgment of c*- 
 nets in futiiro ;{e) or to a plea of the insolvent debtors' act, he 
 may take judgment for his demand to be levied against the de- 
 fendant's futuVe effects. (/■) The points relating to discontinu- 
 i>!g,{g) and entering a nolle /irosequi^^/i) are principally matters 
 of practice, and have already been fully treated of ; we will 
 therefore proceed to the *consideration of replications, which * 549 
 
 answer the defendant's pleas. 
 
 As the replication is m general governed by the plea, and 
 most frequently denies it, the pleader has not often much dif- 
 ficulty in deciding what replication he should adopt. When 
 the plea properly concludes to the country, the plaintiff cannot 
 in general reply, otherwise than by adding what is termed the 
 
 (a) Tidd'sPrac. 4th edit. 617. Id. (i°) See the precedent, post, vol. 2. 
 
 620, G21. 6 1 J, 613. 
 
 (A) See tlie precedent, post, vol. (_/") 1 T. R. 80. Sec the precedent, 
 
 2. 595. post, vol. 2. 596. 
 
 (c) in. Bl. 108. 1 Sauvid. 285. (5-) Tidd, .3d edit. 626 to 629. 4th 
 n. 5. edit. 617 to 020. 2 Saund. 73. n. 1. 
 
 (d) Ante, 32. Tidd's Tjac. 4th (A) Tid<l, 3d edit. 629 to 633. 4tU 
 edit. 622. edit. 620 to 623. 1 Sauud. 207. n. 2.
 
 549 OF REPLICATIONS IN GENERAL. 
 
 General ob- similiter ;(i) but when the pica concludes with a verification^ 
 sei-vationa. ^^^^ replication may either, first, conclude the defendant by 
 matter of cst'jppcl ; or, secondly, may denij the truth of the 
 matter alleged in the plea either in whole or in part ; or, 
 thirdly, may confess and avoid the plea ; or fourthly, in the 
 case of an evasive plea, may new assign the cause of action. 
 And though at common law a replication cannot be double, or 
 contain two or more answers to the same plea, and the statute 
 4Jnn. c. 16. does not extend to replications, (except in the in- 
 stance 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 infancy be pleaded 
 in assnm/isit, the plaintiff may reply either that the defendant 
 was of at;e, or that tlie goods, Sec. were necessaries, or that 
 the defendant after he came of age ratified and confirmed the 
 promiscv or he may reply as to part of liis demand, tJiat it was 
 fornecessi.rics ; to oiher part that the defendant was of full age 
 at the time of the contract ; and to other part that he confirm- 
 ed it after he came of age. So if an executor or administrator 
 plead several judgments outstanding, and no assets itltra, the 
 *■ 550 pliintiff may reply as to one of *the judgments, mil tiel record ; 
 
 and to another that it was o'Dtuincd or kept on foot by fraud. (A) 
 So if a set-off on a recognisance and also on simple contract be 
 pleaded, the phiintiff may reply as to the recognisance nul tiel 
 record, and as to the residue of the plea iril debet. {i) And if a 
 tender be pleaded, the plaintiff may either deny the tender or 
 its sufiiciency, or may reply a request before or after the ten- 
 der, or that a writ was previously issued. (y) And in the case 
 of a set-off, the plaintiff may either deny the existence of the 
 debt, or may reply the statute of limitations. And if the sta- 
 tute of limitations be pleaded, the plaintiff may reply either that 
 the defendant did undertake, or that the cause of action did ac- 
 crue, witiiin six years in the negative of the words of the plea, 
 or that the accounts were between merchants, or that the writ 
 "was issued within six years. In short, in almost every action, 
 the plaintiff has frequently the choice of several replications. 
 
 (0 Com. Dig. Pleader, R. 1. (?) I East, 369. 
 
 (A) 1 Saund. 337. b. n. 2. 1 Salk. (./) 1 Saund. 35. 
 298. 1 Ld. IJayra. 20J. S, C.
 
 OF THE SEVERAL REPLICATIONS. 
 
 550 
 
 We will consider the points relating to replicutions under Gewminh. 
 the following divisions : oev^KUiom. 
 
 "I. The several replications which usually occur in practice, 
 
 1st. In assumpsit. 
 
 2d!y. In debt. 
 
 odly. In covenant. 
 
 4tlily. In delinue. 
 J <^ 5thly. In actions against executors and heirs. 
 
 \ J 6thly. In case. 
 
 7ihly. In trover. 
 
 Bthly. Pleas in bar in replevin. 
 
 ythly. Replications in trespass. 
 , II. Their form and parts. 
 ^III. 'l"heir qualities. 
 
 */. THE SEVERAL liEPLlCATIOJWS. * 5^1 
 
 In ASSUMPSIT, if the defendant has pleaded infancy in bar, jn assumpsit. 
 the plainlifi' may, if the plea were untrue, reply, denying the 
 fact.(>t) or if true he may reply 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 un- 
 less alleged, and that the money mentioned in the count for 
 money paid was paid in the purchase of necessaries for the de- 
 fendant, and may enter a 7iolle prosctjiu as to the counts for 
 money lent, had and received, and upon an account stated ;(/) 
 or he may reply to the whole or part, that the defendant rati- 
 fied and confirmed the promise after he came of age.(w) But 
 to a plea in bar of coverture at the time the promises were 
 made, the plaintiff can only deny the fuct, or reply some mat- 
 ter which shews that at the time the defendant was compe- 
 tent to contract, as that her husband was then civiliter moriuus ; 
 and he cannot reply that she had a separate maintenance, 
 secured to her by deed.^??) and therefore there is seldom any 
 answer to this plea. When alien enemy has been pleaded, the 
 plaintiff may either deny the fact, or if true *may reply a li- ^ 559 
 
 (A) Post, vol. 2. 594. CI. Asst. 7C. (m) Post, vol. 2. 5^5. 1 T. R. 6i8. 
 
 (/) 1 Salk. 223. Post, vol. 2. 594. (/;) 8 T. R. 545. 
 Ci-o. Jac. 560. 1 T. R. 40. Com. 
 Dig. Pleader, 2 W. 22.
 
 552 
 
 OF THE SEVERAL REPLICATIONS. 
 
 In assjtmpsif. cense, 8cc. to reside in this country ;(o) and when a discharge 
 under the insolvent debtors' or lords' act is pleaded, the replica- 
 tion may either deny the fact,(/i) or reply that the discharge 
 was obtained by fraud, (y) or in the former case, the plaintiff 
 may admit the plea and take judgment for his demand, to be 
 levied of the future effects. (?•) If gaming, usury, or any other 
 illegality in the consideration or contract be pleaded, the plain- 
 tiff may reply that the contract vv^as made upon a good and le- 
 gal consideration, and not upon the supposed unlawful consi- 
 deration mentioned in the plea.(5) To a plea of tender, the 
 replication may either deny the tender generally,(?) or state that 
 a writ was previously issued, («) or a writ with continuances ;(t) 
 but if the plea state that the tender was made before the com- 
 mencement of the suit, instead of exhibiting the bill, then 
 there appears no necessity to reply the writ, and it would be 
 sufficient to produce it in evidence ; or the plaintiff may reply 
 a prior(TO) or subsequent(x) demand, or admitiing the tender, 
 may proceed to trial on the plea of non assiwijisit, when he is 
 
 * 553 prepared to prove that more was due than the *sum tender- 
 ed.(y) The replication to a plea of accord and satisfaction, 
 may either deny the delivery of the chattel in satisfaction, or 
 protesting against that fact, may deny the acceptance :(r) and 
 if an award be pleaded, the plaintiff may either deny the sub- 
 mission, or the award, or may set out the whole award, and if 
 bad in point of kiw, may demur. (a) If a former recovery for 
 the same debt, or a plea of set-off on a recognisance be plead- 
 ed, the replication is mil del record :{b) and to a plea of judg- 
 ment recovered, the plaintiff may new assign that his action is 
 for the breach of different promises ;(c) or to a plea of release.. 
 
 (o) 43 Geo. III. c. 155. 
 
 (/)) 3 Wentw. 200. 199. and id. In- 
 dex, XX. 
 
 (9) 31 Geo. III. c. 70. s. 38. 55. 44 
 Geo. III. e. 108. kc. 
 
 (r) Post, vol. 2. 596. 1 T. R. 80. 
 Com. Dig-. Pleader, 2 G. 16. 
 
 (.9) Cora. Dig. Pleader, 2 W. 23. 2 
 T. R. 439. 1 Saund. 103. b. n. 3. 
 Post, vol. 2. 616. 3 Wentw. 104. 108. 
 and id. Index, V. 
 
 (0 Post, vol. 2. 59C. 
 
 {n) Id. 597. 
 
 (r) Id. 598. 
 
 (w) Id. 600. 
 
 (a-) Id. 601. 
 
 (?/) Post, vol.2. 601. 
 
 (-) Post, vol. 2. 602. See Wentw. 
 Index, VI. VII. X. 
 
 (a) Vol. 2. 602. 3 Wentw. Index, 
 VIII. 
 
 (A) Post, vol. 2. 802, 803, 804. 
 
 (c) Post, vol. 2. 652.
 
 OF THE SEVERAL REPLICATIONS. 553 
 
 iie may reply non est factum^f^cl') or that it was obtained by In a.isiimpsU. 
 duress or fraud,(f) and it is in general unnecessaiy to state the 
 particulars of fraud ;(/) or to a plea of release by a tiiird per- 
 son, the plaintiff may reply nc relesna /las.(g) To a plea of 
 set-off on simple contract, the plaintiff may reply riil dcOet,{/i) 
 or the statute of limitations,^) or any matter which a defend- 
 ant in an action might plead ; but if tlie set-off be on a spe- 
 cialty or judgment, or other matter of record, such replication 
 would be insufficient, and the pkuniiff should reply 7ion est fac- 
 tum, 7iul ticl record, or payment, ^c.(J) and as the statute 4 
 ,'i}i72. c. i-6. *does not extend to replications, and the statutes * 554 
 
 which give the plea of set-off do not specify how the plaintiff 
 is to reply, it should seem that the plaintiff cr.nnot reply seve- 
 ral distinct answers to a plea of set-off. When the court of 
 conscience act has been pleaded, the plaintiff may deny the re- 
 sidence of the defendant within the jurisdiction, or may allege 
 that more than 4O5. &c. was due.(A-) When the statute of li- 
 mitations . has been pleaded, either that the defendant did not 
 undertake, or that the cause of action did not accrue within 
 six years before the exhibiting of the plaintiff's bill, and the 
 plaintiff can prove a promise or acknowledgment within that 
 time, the replication may deny the plea generally, and con- 
 clude to the country -,(1) but if the time bf issuing the first 
 writ in the action be material, it should be replied specially, 
 as in the case of a lender, and if continued process be stated, 
 the return of the first must be shewn ;(?«) but this does not 
 seem necessary when the plea states " before the commence- 
 ** ment of the suit," instead of " the exhibiting the bill," 
 though a special replication is in general advisable, because it 
 may reduce the proof to be adduced by the plaintiff on the 
 trial ; the replication may also be that the plaintiff or the de- 
 fendant was abroad, when the cause of action accrued, and that 
 
 (d) Post, vol. 2. 60.1. C J) 1 East, .309. 3 Wentw. Index, 
 
 (e) Post, vol. 2. 603. AVentw. In- XIV. 
 
 «lc.\, XII. (k) Post, vol. 2. G05. 3 Wcnt\r. 
 
 (/)9Co. no. Index, XVIII. 
 
 l^) 2 Bulst. 55. (/) Post, vol. 2. 605, fiOG. 
 
 (/i) Post, vol. 2. 597. 601 (vi) i'ost-> vol; 2. COP. and id. n. (^ \ 
 
 fn Post, vol.2. fins.
 
 554 OF THE SEVEHAL REPLICATIONS. 
 
 In assvmpfsit. the action was commenced within six years after his first re- 
 * 555 turn ;(«) and any other circumstance *which brings the case 
 
 within either of the exceptions mentioned in the statute, 
 should be replied. (o) 
 In debt. In actions of DEBT on sim/ile contract, the replications are 
 
 substantially the same as in the action of assumjusit. If to debt 
 on a njiecialtij^ fraud or duress be pleaded, the plaintiff may 
 reply that it was duly or freely obtained, (//) or he denies the 
 plea of infancy,(y) or to a plea of usury, gaming, Sec. traverses 
 the illegality of the contract ;(r) and replications to a plea of 
 tender, resemble those in assum/isit ;(.s) and to a plea of sct- 
 oflf 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.(?) The 
 only replication to a plea of solvit ad or fiost diem is a denial of 
 the payment ;(w) and if to debt on an annuity bond or deed, it 
 be pleaded that no memorial was enrolled containing the names 
 of the witnesses, Sec. the replication sets out the memorial ver- 
 batim, and states that it was duly enrolled. (xO If to debt on 
 an arbitration bond, the defendant pleads that no award was 
 made, the replication must set forth the whole award, though 
 this is not necessary in debt on an award, (w) and a breach of 
 *■ 556 the award must also be assigned. (r) *If to debt on a bail- 
 bond by the assignee of the sheriff, the defendant has pleaded 
 ease and favour, the plaintiff should reply staling that it was 
 duly executed, and deny the case and favour ;(?/) or if the 
 action be in the name of the sh.eriff, 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, 
 Sec. and the arrest of the defendant, and that the bond was 
 made to the plaintiff as sheriff, and traverse the ease and fa- 
 
 («) Post, vol. 2. 607. (;/) Post, vol. 2. 61 S. 
 
 (o) See the instances, post, vol. 2. (v) Post, vol. 2. 618. 
 COS. 3 Wentvv. Index, XX. kc. (w) Post, vol. 2. 619. 2 Sauiid. 02. 
 
 ( p) Cora. Dig. Pleader, 2 W. 19, b. n. 5. 
 20. Post, vol. 2. 615. (x) 1 Saund. 103. n. 1. n. 4. 317. 
 
 ((/) Po.st, vol.2. 616. Post, vol. 2. 620. 
 
 (r) Post, vol, 2. 616. (?/) Post, vol. 2. 620. 1 Saund. 
 
 (,9) Post, vol. 2. 616, 617. 159. Com. Disj. Pleader, 2W. 25. 
 
 (0 3 T. R. 65. Post, vol. 2. C17.
 
 OT THE SEVERAL REPLICATIONS. 555 
 
 \our.(r) If to debt on a bastardy or indemnity bond, the In debt. 
 defendant plead non damvijicatus^ the plaintiff must reply spe- 
 cially, setting forth how he was damnified; (a) and to a plea 
 of performance to debt on a bond to account or perform cove- 
 nauts mentioned in the condition, or in another deed, the breach 
 must be stated, and these replications should conclude v/ith a 
 verification.(i) The statute 8 and 9 Wm. III. c. 11. s. 8- 
 enables the plaintiff, and in muny cases makes it necessary, to 
 assii^n in the replication several breaches of the condition, (c) 
 and the assignment of a breach was necessary at common law, 
 where the delendint pleaded performance, thoutj^h it was other- 
 wise when he pleaded a collateral matter as a release. (</) To 
 a plea of mil tiel record in debt on arecoid, the replication must 
 state that there is such record, and conclude proitt j:atet per 
 recordum, with a prayer that it may be inspected, Scc.(£') 
 *And if to debt on a recogiusance of bail, the defendant has *• 557 
 
 pleaded no ca. .so. against the principal, the replication must 
 state the ca. sa. and conclude with a verification, (/") and if the 
 defendant has pleaded the death of the principal, before the 
 return of a ca. sa. the writ and return must be replied, and it 
 must be averred that the principal was then living. (.§•) Where 
 to debt on statutes., the defend^Jit has pleaded a piior itction de- 
 pending, or a compromise by rule of court. Sec. the plaintiff 
 may traverse the fact, or reply fier fraudcm.Qi) 
 
 In COVENANT as the declaration states the breach, and the jn covenant. 
 pleas usually deny them, and conclude to the country, a special 
 replication seldom occurs. (/) 
 
 In actions whether of assumfidt., debt or covenant, against in action* 
 an EXECUTOR OR ADMINISTRATOR, to the plea of ne unr/ucs "f^iigyf f^^'' 
 
 (r) 1 Lutw. G80. 685. 2 Saund. CO. (e) Com. Dig. Pleader, 2 W. 13. 
 a. n. 3. Post, vol. 2. 624, 625. 
 
 (a) Post, vol. 2. 621. (/) 2 T. R. 576. Post, vol. 2. 
 
 \b) Post, vol. 2. 622, 623. 2 Burr. 625. 
 7"4. iSaundlOl, 102. ( §■) Post, vol. 2. 626. 
 
 (c) Post, vol. 2.623. 1 Saund. 58. (/;) Post, vol. 2. 627. 
 n. 1. 2 Saund. 187. h. n. 2. (/) Sec the precedents, post, vol. 
 
 ((/) 2 Burr. Oii. 2. 627, 62S. S Weutw. Index, ClI. 
 
 to CXLIV. 
 
 Vor,. L r 51 3
 
 557 
 
 OF THE SEVERAL REPLICATIONS. 
 
 Ill actions 
 a chains t exe- 
 cutors, CJc. 
 
 ^' 558 
 
 * 559 
 
 executor, the plaintiff may reassert tho fiict,(^') and to the plea 
 oi plane adTidnintravit. if untrue, the plaintiff should reply that at 
 the time of the exhibiting thebiil, or the commencement of the 
 suit, the defendant had assets,(/^) or if assets have come to his 
 hands since the commencement of the suit and before the 
 plea,(/) or if at the time the defendant first had notice of the 
 action he hud assets, but unduly administered them afterwards, 
 these facts maybe replied specially :(m) so if the plea was /?/fnp 
 adiiiirnstravit except a sum not sufficient to satisfy bonds or judg- 
 ments, *outstanding, the plaintiff may reply that the defendant 
 had assets ultra^in) or that the judgments mentioned in the 
 plea were obtained by fraud and covin,(o) or suffered fraudu- 
 lently for more than was due,(/i) or that the bond pleaded as 
 an outstanding debt is satisfied, and kept on foot by fraud ; 
 but if the plaintiff cannot deny the plea of Jilene administra- 
 vit, he should pray judgment of assets quando acciderint, ei- 
 ther generally qr specially ; as, " which after satisfying the 
 " monies due on the outstanding judgments, bonds, &c. men- 
 ♦' tioned in the defendant's plea shall come to the defendant's 
 f' hands as executor, &c. to be administered,"(r) or if /dene ad- 
 7ninistravit pr<eter a sum acknowledged to be in hand has been 
 pleaded, the plaintiff should pray and take judgment pro tanto^ 
 gnd of assets quando accideri7it as to the residue, in case the 
 plea be true. If the defendant has pleaded the general is- 
 sue, or any other plea denying the plaintiff's right of action, 
 he must proceed to trial thereon, and on the prayer of judg- 
 ment of assets, quando^ kc. 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 plcne ad- 
 mims(ra-i<ii or other plea on which the plaintiff prays judgment 
 of assets quando acciderint.^ there should be an entry of that judg- 
 ment immediately, and an award of an inquiry to ascertain the 
 amount of the plaintiff's demand, unless the defendant has *by 
 
 (.;') Post, vol. 2. 608. 
 (h) Post, vol. 2. 608. 
 (0 Post, vol. 2. 610. 
 3 Went w. 221. 
 
 (in) Post, vol. 2. 609. 
 \n) Post, vol. 2. 609. 
 
 (o) Post, vol. 2. 610. 
 
 {p) 5 T. R. 82. Post, vol. 2. 611. 
 6 T. U. 10. \q) Post, vol. 2. 612. Com. Dig. 
 Pleader, 2 U. 9. 
 
 (r) Com. Dig. Pleader, 2 D. 9.-r 
 Post, vol.2. 512, 513.
 
 OV THE SEVERAL REPLICATIONS. 559 
 
 cognovit confessed the same in order to suve the expense of an ^n actimis 
 
 agi-.inat exe- 
 inquuy.(s) cu.'ors, kc 
 
 In debt, against an heir on the bond of his ancestor, to a 
 plea of parol demurrer, the plaintiff may deny or confess the 
 plea,(/) and to a plea of rien fter descent the plaintiff muy reply 
 either that the defendant had such assets at the time of thb 
 commencement of the suit,(«) or that he had them between 
 that time and the death of his ancestor, '^x-) or if rzVw? firatcr a 
 reversion be pleaded, the plaiutift' may lake judgmer.t, &.c. cw/n 
 accident. (^iv) 
 
 In an action on the case for a libel or verbal slander, the jn ca&e. 
 general replication ds injuria is sufficient to a plea of justifica- 
 tion when untrue>(x) unless the plea allege that the plaintiff 
 oommitted perjury in a court of record, when this general re- 
 plication would be improper, because it would refer the matter 
 of record to be tried by the jury ;(y) so if in an action on the 
 case for slander of title, if the defendant has pleaded that he 
 spoke them in defence of his own title, the repUcation de inju- 
 ria is incorrect, though good after verdict. (-) Bus if the plea 
 be true, the plaintiff muy reply, that after the commission of 
 the crime-, and before the speaking, he wi!S pardoned, cr) To 
 a plea by a sheriff in an action for an escape, that the escape 
 was negligent, *and that the party was retaken on fresh suit, *• 5gQ 
 
 the plaintiff may reply, that the escape was voluntary, or allege 
 that the party wis not after the retaking kept in safe custo- 
 dy ;(a) and if an accord and satisfaction, or the statute of limi- 
 tations has been pleaded in this action, or in trover, the repli- 
 cations will resemble those in assumfidt Xb) 
 
 In UEPLKvix the plaintiff cannot reply de injuria ;(c) but by Pleas in bar 
 
 . , ^ A yi 1 /> 1 • 1 • I 1 r .. ■ J'' ret/levin. 
 
 the Statute 4 jinn. c. 16. he may m general, with leave 01 tne 
 
 (») Post, vol. 2. 612,013,01)-. (j/) 2 Leon. 81. 102. Com. Dig. 
 
 (0 Post, vol. 2. 617. Com. Dig. Pleader, V. 2^. 
 
 Pleader, 2 E. 4. (r) Cio. Jac. 163, 164. 
 
 (»<) Post, vol. 2.617. Com. Di.ij. (rt) Dnn. lG.3. Moore, S6.-. 872. 
 
 Pleader, 2 E. 4. (a) 1 li. and P. 413. 416.417. I 
 
 iy) Post, vol. 2. 617. n. (j-), 6!S. Sanud. 55. n. 1. 2 T. R. 127. 5 East, 
 
 Com. Dig. Pleiider, 2 li. 4. 5 Mod . 293. 
 
 122, 12.3. (&) Ante, 554. 
 
 (w) Com. Dig. Plea-.ler, E. 4, 5. (c) Fineh Law, 596. I B. and P. 
 
 (x) I Saimd. 244, n. 7. Com. Dig. 76. 2 Saund. 234. c. n. .51, 
 Pleader, 2 L. 4. Post, vol. 2. f-2S,
 
 560 OF THE SEVERAL REPLICATIONS. 
 
 Pleas in bar couiL, plead several filcas in bar. If the defendant has plead- 
 
 in rtpkvin, \ , ■ • ,- , • t r ^ ■ r ... 
 
 ^ ed cejiit in alio loco, with an avowry ot cognisance lor u return, 
 
 the plaintiff cannot traverse any matters in the avowry or cog- 
 nisance, but must take issue on the traverse of the place, or 
 amend his declaration ; but if the defendant had them in th6 
 place mentioned in the declaration, though he took them else- 
 where, the plaintifl" may safely take issue ;(e) and to any cog- 
 nisance, the plaintiff may traverse the defendant's having been 
 bailiff, concluding to the country .(./) 
 
 To an avowry or cognisance for 7-^72^, the plaintiff may in 
 one plea in bar, deny the demise of tenancy^ .?) and in an- 
 otlier, that any part of the rent was in arrear>(A) concliiuing 
 * 561 each to the country ;(/) or he may plead *payment of rert to 
 
 a ground landlord, or of land or property lax, though lie can- 
 not avail himself of any otiier set-off ;Ci) eviction is also a good 
 plea in bar.(7) But since the statute 11 Geo. II. c. 19. when 
 the defendant avails himself of the general avowry, the piain- 
 tifl' cannot in teiius plead nil habuit in tenemenliv., 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 ;(X:) so where the plaintiff admits the tenancy and that 
 part of the rent was in arrear, he may plead ricn en arrear as 
 to part, and a tender of the residue. (/) 
 
 To an avowry or cognisance by a freeholder, or a copyhold- 
 er or his tenant, for a distress damage-feasant ^ the plaintift' 
 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 :(w) so the plaintiff may in his plea in 
 Ijar, slate a demise to him from the defendant, (''^ or a right 
 
 («) 1 Sauiul. 347. n. 1. Post, vol. 2 (?) 4 T. R. 511. Dong. 624, 6'25. 
 
 510. n. {g). Ast. Ent. 475. and as to Post, vol. 2. 631. 
 
 the pleas in bar connected witii tlie ( /) Post, vol. 2. 633. 
 
 [>J(ice, see I Siiiind. 347. n. 1. Com. {k) 2 Wils. 208. 5 T. U. 4. 2 
 
 Dig. Plender, 3 K. II to 29. Saiind. 284. d. 
 
 (/■)Post, vol. 2. 631. Ld. R;;yni. (Z) Post, vol. 2. 632. Clift. Ent. 
 
 641. Com. Dig. Pleader, K. 14. 646. Com. Dig. Pleader, 3 K. 20. 
 
 (§yPost, vol. 2. 6.30. (6). Com. Dig. (;h) Post, vol. 2. 634. 2 Sauud. 
 
 Pleader, 3 K. 10. 20. b. 206. a. n. 22. 1 Saund. 103. b. 1 
 
 (A) Post, vol. 2. 631. Com. Dig-. Co. 63, 64. 
 
 Pleader, o K. 16. 20. {n) Post, vol.2. 634 
 
 {i) Lil. R:n m. 641. 1 Saand. 
 1«3. h
 
 OF THE SEVERAL REPLICATIONS. 5.61 
 
 of common in the lonis in quo, either as a freeholder, or copy- Pleas in hitr 
 
 , ^ ., • -f X r 111 ^ ■ \ ''* replevin. 
 
 holder, or as his tenant, (o) prescribmg, it by a irceholder;(/?j 
 
 or if by a copyholder, alle^ini; a custom within the manor, 
 either for all copyholders within the manor, or for the tenant 
 of the defendant's land in particular ;(y) or where a copyholder 
 claims common *or other profit in the soil of a stran.;:^er, which *• 5G2 
 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 immcmorially had com- 
 mon, Ecc. in the locus in (jxio for themselves and their customary 
 tenants ;(r) or the plaintiff may plead in bar a right of way ;(s) 
 or in excuse for tlie cattle having been in the locus in rjuo, he 
 may plead defect of fences, which the defendant ought to have 
 repaired ;(/) so admitting that the cattle trespassed in the 
 locus in cjiio, the plaintiff" may traverse that the distress was 
 whilst the cattle were damaf^e -feasant ;(u) or may plead a ten- 
 der before the impounding ;{v) and it should seem that in the 
 case of a distress damagc-fea-sant, the plaintiff" might plead in 
 bar, that the avowant, after making the distress, used the cat- 
 tle, or otherwise became a trespasser ab i7iitio.{w) 
 
 In trespass to persons, if the defendant has pleaded son assault TiepUcati/ons 
 demesne, and self-defence, or defence of a father, mother, son, 
 &c. or any other plea merely in excuse of an injury to the 
 person, and not a justification under process of a court of re- 
 cord, the replication de injuria or de son tort demesne, is in 
 general proper if the plea be untrue ;(x) and this will suffice, 
 though title be *alleged as inducement ; as if to a declaration ^- 553 
 for an assault and battery, the defendant plead that he was pos- 
 
 (0) Post, vol. 2. C38. Com. Dig. (») 3 Esj). Rep. 95. 
 
 Pleader, 3 K. 24. \v) Post, vol. 2. C39. Coin. Dig. 
 
 ip) III. ibid. Com. Dig. Pleader, Pleader, 3 K. 2j. Bull. X. P. GO. 
 
 3 K. 24. 1 Saund. 34S. n. 10. Liitw. 1596. 
 
 (ry) Id. ibid. I Saund. 348. n. 8. 11. (-a-) Com. Dig. Pleader, 3 K. 20. 
 
 ('■) 1 Saund 349. n. 11. Com. Dig. Eac. Abr. Trespass, B. sed quxre ; 
 
 Pkiider, 3 K. 24. aliter in the case of a disti-ess for 
 
 (s) Com. Dig. Pleader, 3 K. 25. rent, see II Geo. II. c. 19. 
 
 Po.st, vol. 2. 570 to srg. (x) Post, vol. 2. C42. Com. Dig. 
 
 (/) Post, vol. 2. 635 to 638. 2 Pleader, F. 18. Cro. Jac. 224.— 
 
 Saund. 284. c. 285. u. 4. 389. n. 7. Yelv. 157. Willes, 5^. 131. 1 B. k 
 
 8 U. Bl. S-17. P. 8G.
 
 5^3 OF THE SEVERAL REPLICATIONS. 
 
 fn trecpaas. sessed (or p.ccordint^ to some cases, seised in fee)(.r) of a 
 close, and had cut his corn, und that the Jilaintifi" came to take 
 it away, and the defendant in defence thereof, assaulted the 
 plaintiff, de son tort is a good replication. (;/) But if the plea 
 be true, and the plaintiff did in fact comnut what in point of 
 law amounted to the first assault, the plaintiff must reply spe- 
 cially ; as if the plaintiff did in fact make the first assault in 
 defence of his father, son, 8tc. or to turn the defendant out of 
 his house, whereupon the defendant assaulted and beat the 
 plaintiff, this answer to the plea must be replied specially ;(z) 
 jind it is said that if the defendant's battery was outrageous, or 
 more than was necessary for self-defence, that mailer should 
 be so replied. (c) bo if there be only one count in the decla- 
 ration, and the defendant has pleaded son assault, and there 
 fcave been two distinct assaults, one excusable and the other 
 BOt, the plaintiff should not reply, but should new assign 
 another assault ;(/;) but if there be several counts in tiie de- 
 claration, equal to the number of assaults, this would be un- 
 necessary and improper.(c) So if the defendant has pleaded 
 violtiter manus vnfiosuit, in defence of the possession of his 
 
 * 564 close, *the plaintiff, if he claim a i-ight of way, must reply it 
 specially.(£/) And where the justification is under a writ, 
 warrant, or other process of a court of record, the plaintiff 
 cannot reply de injuria generally putting the whole of the plea 
 in issue, (e) but must, according to the facts of each particu- 
 lar case, either deny the issuing of the writ, or the making of 
 the warrant,(/) or protest the writ or warrant, and reply de 
 injuria, as to the residue ;(;§■) or if the parties have been 
 guilty of any illegal conduct, as undue violence, or an impri- 
 
 (.r) Post, 5G4. n. ( /). Sed qusci-e, if not sufficient, to reply de injuria. 
 
 see Willes, 100, lOK Gilb. C. P. 154. 8 T. R. 81. 
 
 {y) Cora. Dig. Pleader, F. 21. id. {b) Post, vol. 2. 653. 1 Saund, 
 
 as. 'iSiiund. 295. b. n. I. 299. ri. 6. 
 
 (:) Post, vol. 2. 642. Carth. 280. (c) Id. ibid. 
 I Salk. 407. Skin. 387. And see 2 {d) Post, vol. 2. 643. 
 Bl. Rep. n6;v (e) 6 Co. 67. a. Com. Dig. Plead- 
 
 (a) Semble Skin. 387. Willes, 17. er, F. 19, 20. 
 1 Selw) n, N. P. 29. n. 9. Sed quicre, (/) 1 Saund. 299. b. 
 
 (^) Post, vol. 2. 644.
 
 OF THE SEVERAL REPLICATIONS. 5G4 
 
 sonmcnt before the issuirii^. or after the return of the writ, the In treaptm. 
 plainiifl" should new assi.^n.(A) 
 
 In trespass to fiersonal property, where the defendant has in 
 his plea merely justified in his own rights the chasing cuttle, 
 or removing personal property from a close, Sec. whereof he 
 was possessed^ the plaintiff may reply, de injuria generally ;(i) 
 and it appears to have been considered that this repiication 
 ■would also suffice, where, in a similar plea, it is stated that 
 the defendant was sei^.ed in fee.(y) But if the defendant has 
 justified as servant of another,(^) or under a distre^s for rent,(/) 
 or the taking and im/ioimding^ and not merely the cha-^mg of 
 cattle, Scc.(ffi) this replication will not suffice. And in c-«»ses - 
 where this general replication might not be bad on demurrer, 
 *it may, nevertheless, be advisable, and in some cases necessary ^ ^ga- 
 
 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 du ma gi; -feasant ; 
 in this case it seems that the pi. intiff ought to reply specially, 
 that he was teridnt in common with the defendant, and so shew 
 that he was not a trespasser. (w) If the justification be under 
 a Jieri facias., or other process, the replication must not be de 
 injuria generally, but must slate the pcirticular answer to the 
 plea as in the case of trespass to persons. (/O Where the an- 
 swer to the plea confesses and avoids it, the replication should 
 be special ; thus the plaintiff ought to reply his right of com- 
 mon, or defect of fences, to a plea of a distress daviagefea- 
 nani ;(o) or he may shew that the plaintiff converted such dis-» 
 tress to his own use or abused it.(yi) •■^•'j! 
 
 In trespass to real firofiertij^ the plaintiff may to the plea of 
 liberum tenementum reply according to the facts, in either of 
 
 {h) Post, vol. 2. 654. I .Saiind. {k) Willes, 99. 1 B. k P. 80. 
 
 299. II. 6. Lutw. 1436. Skin. 3Sr. (/) Willes, S2. 
 
 Com. Dig. Plpader, 3 M. 16. 2 T. (w) Willes, 101, 102. Cro. ^^., 
 
 B. 172. 2-2;7. 
 
 (0 1 East, 212. Post, vol. 2. 641. (m) 1 East, 218. 
 
 ( /) 1 East, 212. Yclv. 15". Lulw. \n) Ante, 564. 
 
 «21. 1 Biowul. 215. Coiii. Dig. (o) Post, vol.2. 646, 64r. 
 
 Pleader, F. 21. 2 Saund. 295. b. n. {p) ^ Wils. 26. 1 Salk. 221. Qr» 
 
 J. Sed vide Willes, 103. 1 B. bi P. Jac. I47, Post, vol. 2. 6+6. 
 80. 12 Mod. 5S2. and post. 
 
 /
 
 565 OF THE SEVERAL RtPLICATIONS. 
 
 tn trespass, four ways. 1st. If the name or iibuttals- of the close have been 
 so minutely stated in the declaration that there can be no ques- 
 tion what close was alluded to, and the plaintiff's title is in- 
 consistent with the defendant's, as if the plaintiff" insist that 
 the locus in quo is his freehold or the freehold of another per- 
 son, 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 
 
 '^' 566 the *replication may merely deny that the close is the defend- 
 ant's freehold, which latter mode is proper where the plaintiff 
 is not entitled to the freehold ;(/0 or, 2{lly. If the plaintiff de- 
 rive title under the defendant, then he must not traverse his 
 plea, but confessing the defendant's title, must reply the lease 
 or some other title under him, concluding with a verification \{q) 
 or, 3dly. If the plaintiff has a middle case, and neither derives 
 a title under the defendant, nor has a title inconsistent with the 
 defendant's, he may reply that before the defendant had any 
 thing in the premises another person was seised, 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, but concluding with a verifi- 
 cation ;(r) or, 4thly. If the declaration be general, without 
 naming the locits in quo, or the abuttals, and there be any rea- 
 son to apprehend that the defendant has any land in the same 
 parish, the pluinliflf must new assign, setting out the locus iti 
 quo with more particularity. C'^) 
 
 If the defendant has justified as servant or bailiff" of a free- 
 holder or termor, the plainiiff cannot traverse the defendant's 
 authority, because he would leave unanswered the other parts 
 of the plea, and thereby admit that another person is entitled 
 to the possession ; but if both parties claim under the same 
 
 ^ "ifi? person, the command is traversable. (/) If the defendant, *in 
 his plea, has relied on a possessory title derived fram the ««'«?» 
 
 (/;) Willcs, 225. Post, vol. 2. 648. Post, vol. 2, 656. ace. Dyer, 23. 
 
 (y) Willcs, 225. Posi, vol. 2. 64S. cont. 
 
 (r) Willcs, 225, 226. (f) 1 East, 245. Cro. Car. 58fi. 
 
 (s) 1 Saund. 299. 1). c. CoiYi. Dig. 6 Co. 24. a. Salk. 107. 1 Sau'nd. iii7. 
 
 Pleader, 3 M. 34. 7 T. R. 335. 2 c. n. 4. 
 Salk. 453. 6 Mod. 119. Willes, 223.
 
 OF THE SEVERAL REPLICATIONS. 567 
 
 tn fee of a stranger, the plaintiff cannot take issue on the mat- la tretp^ss. 
 ter stated by way of colour, but may deny the demise, 8cc. to 
 the defendant, without shewing any title in himself ;(«) or if 
 the plaintiff deny the title of the party under whom the colour 
 is given, he should shew his own title, and traverse that stated 
 by the defendant ;(x') and if the plaintiff insist that the defend- 
 ant's tenancy has been determined by a notice to quit, or a 
 surrender, or forfeiture. Sec. he should reply that matter spe- 
 cially. (w) To a plea of license, the pluintifl" may reply gene- 
 rally, that the defenddnt of his own wrong, and without the 
 supposed license, committed the trespasses, concluding to the 
 country, (JT) or if the plaintiff did at any time license the de- 
 fendant to commit similar acts, then he should reply a revo- 
 cation, or new assign that he brought his action for other and 
 different t]'espasses.(2/) 
 
 To a plea of escape of cattle through difcct offences., which 
 tlie plaintiff ought to have repaired, it is said that as the plea 
 contains mere matter of excuse, the plaintiff may reply de in- 
 juria,(.z) 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 ^uo, concluding to 
 the country ;(c) but *he should reply specially, tiiat the de- ^ trn 
 
 fendant turned the cattle into the hcus in quo, or that they were 
 unruly, and conclude with a veriiicauon.(<5) 
 
 To a plea claiming a rit^ht of commoii, the plaintiff cannot 
 reply de injuria,(c) 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,(c/) or that the cattle were the defendant's own com- 
 
 {n) 2Sti-a. 1238. Fortas. 378.— (;) Wil'.es, .54. Raat. Ent. 6'2I. a. 
 
 Poi)li. 1, 2. Com. Dig. Pleader, 3 M. 29. 
 
 {v) Puph. 2. Com. Dig. Pleader, («) I Simiid. 103. b. Com. Dig. 
 
 F. 13. Pleader, 3 M. 29. Post, vol. 2. 651, 
 
 (w) 7T. R. 431. 1 Lev. 307. 652. 
 
 Post, vol. 2.667.070, 6ri. (6) Post, vol. 2. 649. Lutw. 1358, 
 
 (.c) Post, vol.2. 649. 1 Saund. 1359. Com. Dig. Pleader, 3 M. 29 
 
 103. b. ^ Rast. Ent. 621. a. 
 
 0/) 1 Samid. 300. a 2 Saiind. 5. (c) 8 Co. 67. a. Willes, 101. 
 
 end of note 3. (d) Post, vol. 2. 650, 651. 
 
 Vol. I. r 52 1
 
 568 OF THE SEVERAL REPLlCATIOiNS. 
 
 In irespass. moiiable cattle, levatHand covcliant upon the prciiuses,(e) con- 
 cluding to the country, and not with a formal truverbc ;(/) 
 though it is s;.u(l that in the latter case, where the defendant 
 has turned on his own commonable cattle, as well us other cat- 
 tle, the plaintiff should new assign, stating that he brought his 
 action for depasturing the common with other cattle, and ought 
 not to traverse the Icvancy and couchaiicij.{ g) The plaintift' 
 may also reply an approvement.(//) 
 
 If a public or piivate way be pleaded, the plaintiff may 
 deny the way, and conclude to the country, and he may also 
 new assign ;(z) or to a plea of a private way, the defendant's 
 title may be denied, (X) and the plainiifi' may- under such re- 
 plication, give in evidence an order of justices on an inclosure 
 
 * 569 ^ct, and award thereon, whereby the *pul)lic or private way 
 
 has been stopped ;(/) but where the plaintiff cannot deny the 
 plea, and only insists that the defendant trespassed out of the 
 wa)', or was guilty of unnecessary damage in removing an ob- 
 struction, 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 
 vunn, &CC. the replication to pleas justifying a trespass to 
 real property, under process of courts of record, are siinilar 
 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 injuriaXm) 
 
 The replications to pleas in trespass of matters in dischai'ge., 
 in general resemble those in assum/isit ; thus, if a release be 
 pleaded, the replication may be non est factum^ or that it was 
 obtained by fraud, (?/) or to a pica 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 satisfaction of 
 the trespass complained of, or lie may allege that the defend- 
 
 ((') 1 niiiT. 3-20. Wilies, 100. n. c. {i) 1 Saund. 103. b. Post, vol. '2. 
 
 Bull. N. P. 93. 8 Co. 6r. b. 650. 
 
 (/) 1 Saund. 103. b. Pest, vol.2. {k) Post, vol.2. 657. 
 
 6fll.. (0 1 East, Gk Selwyn, N. P. 
 
 (i--) 1 Sauud. 340, (1. 11.50. 
 
 (Ji) Post, vol. 'J. 651. (m) Ante, 564. 
 
 («) Com. Dig. Pleader, 3 M. \2.
 
 TO A PLEA CONCLUDING TO THE COUNTRY, See. 569 
 
 ant was guilty after the accord ;(o) and to a plea of a distress la tresjyas%. 
 
 for the same trespass, he may reply that the cattle died in the 
 
 pound, (/O or to a plea of tender, that no tender was made, or 
 
 that it was insufhcient ;(</) and to a plea of the statute of *li- * 570 
 
 mitations, the plaintiff may reply a writ or any other matter, 
 
 of which he could avail himself in the action oi atisuuijisi!.{r) 
 
 II. OF THE FORMS Ji.YD PARTS OF liEPLICJlTIO.YS. 
 
 A replication is usually entitled in the court., and of the Title, (s'c 
 term of which it is pleaded, and the Tiamen of the Jiluintiff and 
 dtjlndunt are stated in the margm thus : '■'■ A B against C D ;"(«) 
 and where any new matter is stated in the replication which oc- 
 curred pending the suit, as the death of one of several plain- 
 tiff.-) or dcfendiuUs between the plea and replication, this should 
 be ■^uggistcdy and a s/ieciol ivifiarlaiice may be stated at the head 
 of the replication. (A) 
 
 When the plea concludes to the country., the replication con- Tna p'en cnn- 
 
 p , .,..,. , [, . (indiiip- to the 
 
 sists eitner ot the common or special similiter ; the hrst is, cuunin/. 
 " and the said plaintiff dotii the like ;'* and the latter is thus, 
 *' and the said plaintiff as to the said pleas of the said defend- 
 " ant by him first and secondly above pleaded, and whereof he 
 " hath put himself upon the country doth the like ;" and the 
 plaintiff must join issue or demur, and cannot reply any new 
 matter when a plea concludes to the country. (c) If in the si- 
 militer there be any mistake in the names, the defendant may 
 demur, but where to an issue tendered by the plaintiff, the de- 
 fendant has added the similiter by the plaintiff's name, or the 
 plaintiff has joined it by the defendant's name, this defect 
 *will be aided after verdict, there being an affirmative and ne- * 571 
 
 (o) Cora. Di^. Plcailer, 3 M. 13. (r) Ante, 554. 
 
 ffSfil <iuaerc ifilio j)laiiiliti'ought not in (a) See tlie px'ecedent, post, %'ol. 
 
 such case to iie^v assfffii, sec post, and '2. 5'.t'2, 5'J3. 
 
 Tol. 2. 6.)'2. II. (f). (6) See the forms, post, vol. 2. 
 
 {})) 1 Salk. 248. 592, 593. 
 
 Iq) 'I'ho. Ent. 304. Post, vol. 2. (c) Om. Dig. Pleader, M. 1. Co. 
 
 -il Cnm. ]>io;. Pl«;iUer, 3 M. 36. Lit. 120. a. Hob. 271,
 
 571 FORMS AND PARTS OF REPLICATIONS 
 
 To (I pteaeon- gutive before ; it was once indeed held that tlie want of a s/mi- 
 clndiiig to (he ,. . , . i i i r ' r j i 
 
 country. f''^^'* '^^^s noi aided or amendable alter verdict, and vherc m 
 
 the similiter the defendant's name was put instead of the plain- 
 tiff's, the Chief Justice dismissed the jurj-, conceiving he had 
 no commission to try the issue ; but in a subsequent case, where 
 a similar mistake was made, the court after trial of the issue, 
 relused to arrest the judgment, and at length the similiter was 
 allowed to be inserted after verdict, instead of the &c. vipon 
 *three grounds ; first, that it was an omission of the clerk $ 
 secondly, that it was implied in the £cc. added to the last plead- 
 ing ; and thirdly, that by amending, the court only made that 
 right vvb.ich the defendant himself understood to be so, by his 
 going down to trial ;(<") so where, to a rejoinder concluding 
 with a verification, the plaintiff" instead of taking issue, 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. (o') 
 
 To a plea of We have seen that a plea of 7?ul (id record, concludes with 
 
 ntdtielrecord, r • i • ■ ^ , • 
 
 or stating a '-^^ averment and prayer ot judgment si actio, See. unless in the 
 recoru. ^.^^^^ ^£- ^ judgment in Ireland.{e) If the plea deny a record 
 
 in the sajne court, the replication thereto should reassert the 
 existence of the record, and conclude with a prayer that it may 
 be viewed and ijispected by the court, and a day is given to the 
 ^ 572 parties ;(./) *and when the record of another court is denied, 
 the replication reasserts it, and a day is given to the plaintiff" to 
 bring it in.(^) When the defendant has pleaded a record of 
 the same court, the replication denying it, concludes with a 
 verification, and a day is given to the parties to hear judg- 
 ment ;(/^) and where the defendant has pleaded a record of 
 another court, the replication of tiul tiel record may either con- 
 clude by giving the defendant a day to bring it in,(/) or with 
 
 (c) 2Saun(l. 319. n. 6. Com. Dig. { g-) Voi,\., \u\. -2. (,25. 2 Salk. 566. 
 
 Plea<!er, B. 11, 12. kc. 3 Bl. Com. 330, 331. 
 
 {(I) 1 New Rep. 28. {h) Post, vol. 2. 602. See the 
 
 (e) Ante, 537. 2 Wils. 114. 5 pnictiee, Tidd's Prac, 4th edit. 678, 
 
 East, 473. 679. 
 
 (/) Post, vol. 2. 624. 2 LiUw. (?) See iio.st, vol. 2. 603. 
 1514. Heme, 278. Barue.s, 336.
 
 TO A SPECIAL PLEA. 572 
 
 au averment and prayer of tlie debt and damages, 6cc (7) in To a plea of 
 
 C .1 • - 1 ^ 1 1- • '"'' '^<^^ '''"' 
 
 the former case the issue is complete upon the rcphcalion, ,.^,,(/ ^c. 
 but in the iatter there should be u rejoinder reasserting the ex- 
 isteuce of the record, (A-) and therefore the first form, as be- 
 ing the most concise, is obviously preferable. Where matter 
 of tiict, as wcii as mutter of record, is properly put in issue, 
 the replication may conclude to the country. (/) 
 
 The repiicadou to a plea containing new matter, and con- To a special 
 scquently concluduig with a veiihcution, may be considered j,„^ .^y^^/j ^ 
 with reference, 1st. I'o the commencement; 2dly. The body ; verification. 
 and, 3dly. The conchmon. The commencement of the re- 
 plication in such case contains a general denial of the effect of 
 the defendant's plea ; the body shews the ground on which that 
 denial is founded ; and the conclusion, is either to the country 
 or to the record, if it merely deny the plea ; or if the replica- 
 tion contain new matter, it should conclude *with a verification ^ c.nn 
 and a prayer that judgment may be awarded in the plainiifi's 
 favour. 
 
 1st. The commencement of the replication, when matter of / The com, 
 estoppel is replied, after stating the title of the court and term 
 and the names of the parties in the margin, is thus : " And the 
 »' said plaintiff suith that the said defendant ought not to be 
 " admitted in his said plea to aver that," Sec. {atating fully the 
 inatter alleged in the filea ivhich the refilication ufterivards shewi 
 the defendant is estopped from relying oji) "because he saith 
 that," Sec. (stating the matter of estop/iel.)(m) 
 
 When the replication denies or confesses and avoid.^ the nles, 
 it coftunences with an allegation technically termed the prcclu- 
 di Tiony and which is as follows : " And the said ./f B, as to the 
 *' said plea of the said C Z), by him secondly above pleaded, 
 " says that he the said .4 Z?, by reason of any thing by the said 
 *' C D, in that pica alleged, ought not to be barred from hav- 
 •' ing and maintaining his aforesaid action thereof against the 
 '' said C D, because he says that," Sec.(?/) When the body of 
 
 (./) 2 Wils. U3. Barnes, 161. 6". I Saund. 257. 276. n. 1. 325. n. 1. 
 
 (it) Tidd's Pi-ac. 4th edit. 679. f. T. R. 62. 
 
 (/) Saver, 208. 299. («) 2 Wils. 42. If tlie plea was in 
 
 (/u) Sec the i'orni, post, vol. 2. 592. bar of the further maintenance of the 
 
 o East, 348. Willes, 10. Cartli. 66, suit, the replication should be framed 
 
 accoj'dingly, 4 East, 502, 503
 
 573 FORMS AND PARTS OF REPLICATIONS 
 
 /. The com- the replication only contains an answer to a part of the plea, 
 the commencement should recite or specify that part intended to 
 be answered, for should the commencement assume to answer 
 the whole plea, but the body only contain an answer to part, the 
 whole replication will be insufficient and so vice versa ;{o) in 
 
 ■* 574 this case the form may *run thus: "And the said A B, as to 
 " so much of the said plea of the said C £), by him secondly 
 " above pleaded, as relates to the said supposed recognisance in 
 <' that plea mentioned, says that he ouj^ht not to be barred from 
 " having or maintaining his aforesaid action thereof against him 
 " because he says that," Sec. (stating the answer to such part of 
 the plea, and luith the proper conclusion thereto^) and the answer 
 to the other part of the plea commences as follows : " and the 
 " said A B, as to the residue of the said plea saith precludi 
 « non, Sec. because," £<;c.(//) On the other hand, when the 
 matter to be replied is equally an answer to several pleas, it is 
 proper, in order to avoid expense, to answer all the pleas in 
 one rcplication;('/) and the replication de injuriis suis propriiv 
 absque tali causa to two several justifications by different de- 
 fendants in the same action, was held sufficient ;(7") in these cases 
 the commencement should apply to and profess to answer all 
 the pleas. So where to a plea of judgments outstanding, the 
 the plaintiff replies that each is fraudulent, he may conclude 
 with one verification. (s) 
 
 // TItc body. With respect to the body of the replication, we have seen 
 that it contains either, 1st. Matter of estoppel; 2dly. A 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 
 
 * 575 consider each of these in the same order. 
 
 Ut. Estoppel. »is(._ ^55 to matter of estoppel :{t) When it appears on 
 the face of the declaration, the plaintiff may demur to the 
 
 {(j) 1 Sfiund. 28. n. .3. 377, 3;s. mary on Pleading, 71, 72. Scd vide * 
 
 CiJiu. Dig. Pleader, F. 25. Lutw, 1 Leon. 13'J. as to a demurrer. 
 i24l. 2 13. k P. 427. Summary ou (r) Ibid. 1 Leon. 124. Cro. Eliz.' 
 
 Pleading, 72. 4 East, 503, 5i)4. 139. 1 Sid. 39. 
 
 {p) 1 Saund. 337, 338. See the (s) 1 Saund. 838. n. 5. I Salk. 312, 
 
 forms, post, vol. 2. 594. 604. Lutw. 298. 
 241. Com. Di"-. Pleader, F. 4. {t) As to estoppels in general, see 
 
 (9) See the form in 8 Wentw. 5. Com. Dig. Estoppel. Soraraary, 103, 
 
 1 Leon. 124. 1 Sid. 39. Yelv. 65. 104. 
 Cora. Dig. I'leader, F. 4. k 24. Sum-
 
 TO A SPECIAL PLEA. 575 
 
 plea ;(?/) as in covenant by the lessor or the assignee of the ve- //. The body. 
 version, if the defendant plead nil habidt or generally that the " ' " ' 
 lessor was not seised in fee, without shewing that he was seised 
 ii{ any estate in the demised tenements ;(t') but if the matter 
 of estoppel do not appear from the anterior pleadings, the repli- 
 cation should set it forth, and have the proper commencement 
 and conclusion ; as in debt or aasumfisit for rent, without set- 
 ting forth the indenture, if before the 11 Geo. IL c. 19. the de- 
 fendant pleaded rdl habuit in tenementisy the plaintifl" was bound 
 to reply the indenture, and conclude undc petit jiidicium if the 
 defendant should be admitted to plead the plea against his own 
 acceptance of the lease by indenture, for if the plaintiff" replied 
 that he had a sufficient estate to make the demise, he lost the 
 benefit of the estoppel ;(w) but this is altered by the above- 
 mentioned statute, and now the plaintiff" might demur to such a 
 plea;(x) so if it be recited in the condition of a bond, that a 
 fact exists, the estoppel on the party executing it, may be re- 
 plied ;(j/) and where the matter has been tried upon a particu- 
 lar issue in the trespass, and found by the jury, such finding 
 may *be replied as an estoppel. (;/) As a species of estoppel * 576 
 
 it may be proper here to notice that if in debt on a bond, con- 
 ditioned for the performance of covenants, the defendant false- 
 ly plead that there Avere no covenants in the indenture on his 
 part, the plaintiff" may reply selling out the indenture contain- 
 ing such covenants and demur.(Z) 
 
 The second description of replication is that which neither 2dly. Denial 
 concludes the defendant by matter of estoppel, nor confesses *^^*''^ P'*^^- 
 and avoids the plea, but denies or traveises the truth thereof ci- 
 
 (m) 1 Sauml. 3ii6.n. 4. 2 Stra. 8ir. (v) 1 Saund. 325. n. 4. & 215. n. 2. 
 
 7 T. U. 537. 8 T. R. 487. Willes, 6 T. it. 62. Willes, 9. 
 
 13. (i/) 3 East, 346. and see the precc- 
 
 (t') Id. il)id. 1 New Rep. 160. 2 dent in trespass for mesne profits, 
 
 Saund. 207, 208. 418. n. ). Post, vol. where to a plea of title, tlie recnverr 
 
 2. 500. in ejectment was replied. 2 Rich. C 
 
 (tc) 1 Sauiid 325, 326. n. 4. k 276. P. 444. 
 
 n. 1. 3 K,i^i, 346. 2 Rich. C. P. 446. (z) 1 SaHnd. 316, 317. 318, 319. 
 
 (x) 5 T R. 4. 1 Vfi]9. 314.
 
 576 
 
 FORMS AND PARTS OF REPLICATIONS 
 
 ^niv'^Dethr'' ^^"'* ^"/'"'■^ ^^ "^ wholc^a) It will be proper to consider the 
 <ai the plea, nature of these replications, under the following heads : 
 
 * 577 
 
 *I. A denial of the nvliolc ])lea, or de injuria^ Ecc. 
 
 C 1st. When allo-.ved, or not proper, or not advisable. 
 \ 2dly. The form of such replication. 
 II. A denial of only part of the plea. 
 C 1st. Of what fact. 
 
 \ 2dly. The mode of such special denial. 
 ^III. A denial, and stating a particular breach, 8cc. 
 
 It is necessary to premise as a general rule, tliat it is the 
 first object of pleading, to bring the point in dispute between 
 the parties at as early a stage of the cause as possible, to a sin- 
 gle issue or point, which is not multifarious or complex ;(A) 
 and therefore the issue must, in general, be single. (c) But this 
 single point may consist of several facts^ if they be dependent 
 and connected, irf) and therefore where in ti'espass the defendant 
 justified under aright of common, and the plaintiff in his replica- 
 tion traversed, " that the cattle were the defendant's own cat- 
 " tie, and that they were levant and conchant upon the premi- 
 *' ses, and commonable cattle," the replication was on a special 
 demurrer, assigning for cause that it was multifarious, hoiden 
 to be good.(f) So according to the first resolution in Crogate*s 
 
 («) The nature, lanp;ua!!;e, and 
 fs:;rm(3fa traverse, \v\\\ presently be 
 more pai'tieularly consideretl ; it is 
 proper, liowever, here to observe, 
 that any replication, ke. denying- tiie 
 matter alleged in the prior pleadings, 
 is in its more extensive signification a 
 U-averse, and there is no real distinc- 
 tion between traverses and denials, 
 they are the same in substance. (Wil- 
 l.es' Rep. 224.) However, a traverse, 
 in the strict technical meaning, and 
 more ordinary acceptation of the 
 term, signifies a direct denial in the 
 formal -words, "without this, 
 " THAT," kc. of a material fact in 
 the preceding pleading, whether de- 
 claration, plea, replication, &c. and is 
 in general prefaced by a formal in- 
 duceiBcut. (Summary on Pleading^ 
 
 75.) This formal mode of denial is 
 still frequently adopted in the action 
 of ti'esjiass, but it is rarely, if ever 
 requisite, and should not be unneces^ 
 sarily adopted, as it certainly, by re- 
 quiring a rejoinder repeating the 
 matter in tlie plea, tends to unneces- 
 sary delay, pi-olixity, and expense in 
 the pleading, see the learned obser- 
 vations of Mr. Serj. Williams, in 1 
 Saund. 103. in notis, and Ld. Raym. 
 C41. 1 Burr. 320. As to the nature 
 of a traverse in general, see Summa- 
 ry on Pleading, 75 to 80. 
 
 (6) Willes, 204. 254. 1 East, 217. 
 1 Burr. 320. Summary, 77. 
 
 (c) Id. ibid. 
 
 (</) 1 Burr. 320. Willes, 100. n. 
 c. Bull. N. P. 93. 8 Co. 67. b. 
 
 (e) Id. ibid.
 
 ^j^^y-r • TO A SPECIAL PLEA. 5^7 
 
 Case, to a justification under proceedings in the admiralty //. Tbeljodu. 
 
 court, hundred court, or county court, or any other court, '"'."-V '^'•"'** 
 
 ■^ ■^ ol the pica. 
 
 which is not of record, dc injuria sua propria is good, all be- 
 ing matter of fact and makinty but one cause or j^usiifica- 
 tion.(y) Indeed in some cases the traverse or denied must 
 consist of more than one fact, for it is another rule *Lhat in a *• 578 
 traverse the plaintiff cannot narrow the title set up by the de- 
 fendant (r) And indeed, according to some modern cases, it 
 should seem that the mere circumstance of a replication put- 
 ting in issue several material facts, is not the ground on which 
 it is in general objectionable. (/) We will now proceed to ■ 
 consider the particular instances, when a general denial of the 
 whole plea is or is not allowed, or may not be proper or advisable. 
 
 In actions on contracts and in rcplevhi, the replication de- First. Gene- 
 nies the tact or one 01 the tacts alleged m the plea m express when allowed 
 words.(,§-) But in trespass, and in actions on the case for slan- |^|' adYmbl'"' 
 der, a replication, containing a general de?n'al of the nvhoie plea^ 
 frequently occurs, and is termed a replication de injuria sua 
 propria absque tali cauna, or " de son tort demesne sans tiel 
 " cause. "Qi) This replication puts in issue and compels the 
 defendant to prove every material allegation in his plea,(i) and 
 therefore it is frequently advantageous to the plaintiff to adopt 
 it, when by tlie rules of pleading it is permitted. 
 
 In general, when the defendant's plea consists merely of 
 matter of excuse, and not of matter of right or interest incon- 
 sistent with or affecting the right, the infringement of which 
 is complained of in *the declaration, whether it relate to the * 57?) 
 persons, personal property, or real property, the general re- 
 plication de injuria is stifficient.(A-) And in these cases when a 
 
 (/) IiJ. ilji'l. Willes, 101. n. c. col'ecto:! in Crogate's casej'S Cd'.^'g'. 
 
 (e) 4 T. li. 15". Sunirnary, 78. Cockoi'el! v. Armstrong-, Wiiles, 99. 
 
 (/) 1 B. k I'. 80. Bail. N". P. 9.3. I>oct. Tlac. vol. 1. 133' to 11.9. and 
 
 'Sed vide Wiiles, 100. 1 Burr. 320. Com. Dig. lit. Pleader, F. 18. &c. 1 
 
 Summary, 77. S Co. C,7. h. B. k P. 70, SO. Kinch. Law, 395, 396. 
 
 (^■) In replevin, the replication de (/) Com. Uig. Pleader, F; I8tb''24. 
 
 injuria, never occurs. Fiiich. Law, 8 Co. 67. a. Wiiles, 100." -'i >! 
 
 3'J6. Ante, ofiO. {k) S Co. 67. a. Com. Dig.'Plead- 
 
 (A) Com. Dig. Pleader, F. 18, er, F. 18. &c. Doct. Plac. 113 to 
 
 Crogate's case, 8 Co. 67. Most of the 115. I B. k P. S-^. 1 ?',.!• t. ':i<:. 2lV 
 
 points rcl.itiiig to this replication, are 218. _ 
 
 Vol. I. r 53 1
 
 579 FORMS AND PARTS OF REPLICATIONS^ 
 
 IJ. The hmhj. ^itig ig stated, merely as inducement to the defence, the plain- 
 
 Sdlv. Denial • (•[• 1 -111 -^ I •. • 
 
 01 the pica. '■*" need not answer or particularly deny it, becuuse it is mere- 
 ly collateral to the matter in dispute, which constitutes the dif- 
 ference between a case, in which the plaintiff makes title by 
 his declaration to any thing, and the defendant in his plea de- 
 nies it or claims an interent therein, affecting the same, when 
 he must reply specially. (/) 'I'hus in an action for an assault, 
 if the defendant plead non asuauii demesne^ or that he arrested 
 the plaintiff upon hue and cry levied,(m) or the plea be n*ode- 
 rate correction of a servant for his neglect of service, the ge- 
 neral replication dc injuria is sufficient ;(«) and though such 
 excuse for the personal injury may be staled in the plea to de- 
 pend on the possession of land or personal property, as ii the 
 detciuiant piead, that the pLiniilf entered upon his possession, 
 and that, therefore, the deiendunt mollitcr 7iianus im/wauit to re- 
 move him,(c) or if the plea be that the defendant was sriscd. Sec. 
 as rector, and that the tithes were severed, and that the pl.antiff 
 endeavoured to carry them away, and that the defendant in de- 
 fence of his tithes, nwUiter manus imfiosuit^ See. in these cases this 
 * 580 general replication *is sufficient, and the phiiniiff 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 mere- 
 ly as inducement. (//) However in a recent case it seems to 
 have been considered that where the excuse arises in part out 
 of the ficisin in fee of another, then etc injuria is insufficient.(f/) 
 So in trespass to jiernonal property, if the defendant merely 
 justify the chasing cattle or removing goods from off land, of 
 which he was possessed, the general replication will suffice ;(r) 
 and in trespass to real properly, if the defendant in his plea do 
 
 (0 Yelv. 157. Cro. Jac. 2i5.— ( /j) Yelv. 157. Cro. Jac. 224, 2'25. 
 
 Willes, 102, 103. Coin. Dig. PJead- Com. Di- Pleader, F. 18. 
 
 cr, F. 2(T, 21. (y) Ante, d6.S, 5G4. 1 B. k P. 
 
 (w) S Co. 07. a. 1 Sauiid. 24i. a. 80. and see Willes, 102, 103. 12 
 
 11.7. Mod. 582. Cro. Eliz. 539, 540. Cro. 
 
 («) <'iil>. C. P. 154. Willes, 102. Jhc. 598. 
 
 (o) Latch. 128. 221. Cum. Dig. (r) Ante, 5G4. 
 Pleado,-, F. 18. 12 Mod. 582.
 
 TO A SPECIAL PLEA. 58© 
 
 not claim any interest therein, or easement over the same, the //. Tlie budtj. 
 replication cle injuria is sufficient ; as if in trespass for pulling 2|Ilv.^ denial 
 down a biiiiding, the defendant, without claiming any interest 
 therein, plead that he removed it as being a nuisance on his 
 land, this general replication will suffice ;(3) so if in trespass to 
 land with cattle, the deiendant plead that the plaintiff's fences 
 were out of repair, whereby the defendant's cattle escaped into 
 the plaintiff's close, this plea consisting merely of matter of 
 excuse, and claiming no interest in the land, may, it is said, be 
 answered by the general replication ;(i) and though it is stated 
 as a general rule, that where the defence rests upon an au- 
 thority of law, the replication *must be special.(«) yet this as * 581 
 a general position is inaccurate ;(f ) for if the defendant justity 
 as constable and without warrant taking the plaintiff for a hreuch 
 of the peace ; or as a vagrant or lunatic ;(w) or under a pub- 
 lic act of parliament, or under a right for all persons given by 
 the comiTion law •,{x) or if in false imprisonment, the defend- 
 ant justify by process, out of the admiralty, hundred, or coun- 
 ty court, or other court not of record, the general replication 
 is sufficient, all being matter of fact, and making but one 
 cause, (z/) and the instance of an entry to view waste, proceeds 
 on a special reason. (r) 
 
 But if in any case the defendant justify by ivan-ant of a jus- 
 tice of the peace, (a) or as sei'vant of another or by hin command., 
 the replication must be special, and must admit or protest the 
 warrant or commandment, and reply de injuria absque residuo 
 cauna, or take issue simply on the warrant or commandment. (6) 
 So when by the defendant's plea any authority or power is me- 
 diately or immediately derived from the plaintiff, there although 
 
 (s) Summary, 81, S2. Mod. 58'2. 8 Co. 67. a. Doct. Plac. 
 
 (0 Ante, 567. 114. 
 
 (m) 8 Co. 67. 1). (z) 12 Mod. 582. 
 
 \v) 12 Mod. 582. (<() 12 Mod. 582, 583. 
 
 (w) Com. Dig. Pleader, F. 18. (6) Id. ibid. 8 Co. 07. b. C,7. a. 
 
 12 Mod. 582. l.utw. 1459. Doct. Plac. 113, 114- 
 
 (x) 12 Mod. 580, 581. I B. k P. 1 B. & P. 76. Com. Dig. Pleader, F. 
 
 77. Summary, 81. .Ice. Tidd's Willes, 100, 101. 2 Sauiid. 295. b. n. 
 
 Prac. 3d edit. 635. and 8 Co. 07. b. 1. 2 Bro. Abr. tit. de son tort de- 
 
 coutr. mesne, pi. 13. 15. 
 
 (j/) Com. Dig. Pleader, F. 19. 13
 
 sk 
 
 FORMS AND PARTS OF REPLICATIONS 
 
 IJ. The h(r]ij. no interest be claimed, the pluintifi" ous^lit to answer it spccial- 
 ^I'u ^^'i?"'' b'' ''"'1 shall not reply de injuria s;enerai!y,(c) as if he justify 
 ■t' 532 by virtue of *the lease, or license, or conamand, of the p.'ain- 
 tifT.(f/) So when the defendant in his plea claims in his own 
 right, or as lessee or servant of another any right to, or inte- 
 rest in, the person, (e) personal property,(./") or real property, (5') 
 for a supposed injury to w hich the plaintiff has declared, or 
 -any riglit of way, 70 common, (/) or other easement, 8cc.(y) 
 or rent issuing out of the land claimed in the declaration ;(X-) 
 or if the plea contain matter of record not stated merely as in- 
 ducement,(/) and of which a jury cannot be competent judges, 
 as if the sheriff or his officer justify under process of a court 
 of record, (772) or if the defendant justify under a warrant of a 
 justice of the peace, (w) or under a particular custom of a 
 manor,(o) or in some cases by authority of law, as to view 
 Avaste ;(//) in these cases the replication de injuria^ is imj)ro- 
 per.(.7) and the plaintiH" must either deny the title, easement, 
 warrant, &:c. in parlicular,(r) or admiiiing, or in some cases 
 * 583 protesting *those matters, must reply that the defendant com- 
 mitted the trespasses of his own wrong, and without the residue 
 of the cause alleged by the defendant ; in which case it will 
 not be incumbent on the defendant to prove either of those 
 matters. And where matter of record is denied, the replica- 
 tion should not be dc injuria^ Sec. with a traverse of the record, 
 but should be merely nid tid n'cordAn) 
 
 (t) 8 Co. f.r, 68. 1 B. k 1'. 89. (/) Willes, 103. n. a. Com. Di-. 
 
 Com. Dig. Pleafior, T. 2'2. Ple.-ukT, F. 19, 20. 2 Leon. 81. 
 
 (f/) Com. Dig-. Pleader, F. 2'2. {m) 8 Co. dT. a. Doet. Plac. 114. 
 
 Summarv, 8.5. Bro. Abr. tit. de son Cdpi. Dig. Pleader, i". 20. Haidr. 6. 
 
 tort, pi. 30. L(l. Raym. 104, 105. 12 .Mod. .iSO, oSl, 582. 
 
 (<>) Wnies, 102. (n) \2 Mod. 582, 583. Doct. 
 
 (/) Yelv. 157. Cro. Jac. 225. Plac. 113. 
 
 do. Eiiz. 530. (0) Com. Dig. Pleader, F. 20. 
 
 (^•) 8 Co. 07. a. 1 B. & P. 79. c. Hob. 76. 3 Lev. 49. 8 Co. C7. a. 
 
 80. Willes, 52. 99. 101, 102. Doet. Willes, 202. 
 
 Plac. 114. Com. Dig. Pleader, F. (/^) 8 Co. 67. b. Com. Dig. Plead- 
 
 'il. &c. er, F. 23. 12 -Mod. 582. 
 
 (/;) Id. ibid. 1 B. k P. 79. (rj) See all the above cases, and 
 
 (0 id. ibid. S Co. 67. 1 B. & P. 79, 80. Doct- 
 
 (./) Id. ibid. Plac. 114. Com. Dig. Pleader, F. 20. 
 
 Ih) 8 Co. 67. a. 1 B. & P. 76. See. 
 
 Willes, 5-2. Com. Dig. Pleader. F. (r) Lutw. 1459. 
 
 21. [s) 3 Lev. 243, 244. Lutw. 1459.
 
 TO A SPECIAL PLEA. 583 
 
 Thus where in tresp;;ss for taking the plaintifV's servant, the //. The hody. 
 defendant pleaded that the father of the person taken, held of 2<llv- Denial 
 
 ' _ ... "f the plea. 
 
 the defendant by knight's service, and died seised, and that 
 the person taken being under age, the defendant seised him as 
 his ward, the general replication de injuria was held insufficient, 
 the plea claiming an interest on the person claimed by the 
 plaintiff in his declaration. (^) So if in trespass for taking 
 goods, trees, See if the defendant plead that he took them as 
 tithe or as a distress for rent, or as damage-fcusaiit, shewing 
 title thereto, the general replication will be impjopei ;(if) 
 though by the statute of sewers, and as to distresses for poor 
 rates, exceptions are introduced ; and where in a justification 
 of takini^ cattle, duinugc-fdcisant, the defendant sets out a tide, 
 and does not rely merely on possession, the replication should 
 be special ;(t^) the other instances are already sufficiently enu- 
 merated. It also seems that though the plea *ciaim no z/z^t-rc.s;^ ^ ''9\/!L 
 in the property mentioned in the plaintiff's declaration, but 
 merely contains m.atter of excuse^ yet that where such matter 
 of excuse arises in part out of the Reisi7i in fee of another, it 
 is not advisable to reply de itijuria, because that replication is 
 only allowed where in the plea an excuse is offered to jiersi^^nal 
 injuries, and not even then if it relate to any interest in land, 
 which would make part of the issue,(w) there being a dioiinc- 
 tion in this respect between a plea relying merely on fiosses&iori 
 as inducement, and where an interest is pleaded by way of 
 title. (x) 
 
 There are also many cases, in which, though the replication 
 de injuria^ might not be objectionable upon demurrer, still it 
 V. ill not be pioper to adopt it, and it may be necessary in effect 
 to confess and avoid the plea, as in the instance before men- 
 tioned ;((/) and in an action of false imprisonment, where the 
 
 (0 Willcs, 102. Yelv. 1.58. 1 (w) IP., k P. 80. "\\ illes, 102, 
 
 Brown. -215. Com. Dig. Pleadei-, F. 103. Cm. Jac. 598. Lfl. Raym. 640. 
 
 12I. 12 Mod. 582. Cro. Eliz. 539, 540- 
 
 (ji) Ante, 504,565. do. Jac. 225. Yelv. 157. observed upon in Willes, 
 
 Yelv. isr. Cro. Eliz. 539. Com. 101. 2 Saund. 294. 
 
 Dig. Pleader, F. 21. 1 B. & P. 76. (j) Cro. Car. IjS'. Ld. Raym. 120 
 
 Willes, 52. 99. Cartli. 10. 
 
 (r) Ante, 564, 505. 1 Lev. Com. (;') Ante, 563. 
 Dig. Pleader.
 
 584 FORMS AND PARTS OF REPLICATIONS 
 
 II. The body, defendant justifies the commitment us a magistrate for a baila- 
 2dly. Dcnuil i^je offence, in consequence of an information upon oath, the 
 
 of the i.lea. , • • ^ , . 
 
 plamtiff under the general rephcation dc injuria sua p,roJiria^ 
 
 Sec. cannot give in evidence a tender and refusal of bail, hut 
 ought to reply tliat matter specially. (2) So in other cases 
 where it may not be absolutely necessary to reply specially, it 
 may be advisable so to do, in order to narrow the plaintiff's 
 evidence, and to compel the defendant to admit a part of his 
 title, (fi) 
 ^ 585 *Where de injuria is improperly replied, the defendant may 
 
 demur generally, but the defect will be aided after verdict. (A) 
 Form of ^c- In point o{ form the general replication de injuria,, or de son 
 de injuria, fs.c. ^^^^ deme.mc, would be defective, unless the words absc/ue tali 
 causa be added, though the omission would be aided by ver- 
 dict. (c) The usual language of this replication is, " firecludi 
 " «o«, because he says that the said defendant at the said times 
 " when, &c. of his own wrong, and iviihout the cause by him 
 " in his said second plea alleged, committed the said trespasses 
 " in the introductory part of that plea mentioned, in manner 
 " and form as the said plaintiff hath above in his said declara- 
 " tion complained agaiubt the said defendant, and this he the 
 " said plaintiff pn.ys may be inquired of by the country," £cc. 
 which is uniformly the conclusion of such a replication. The 
 word cause,, though in the singular number, puts in issue all 
 the facts in the plea, which constitute but one cause ;(('/) and 
 if such a rcplicadon be adopted, as we have seen it may, in 
 answer to two or more pleas by different defendants, the tali 
 causa will suffice, reddendo singula singulis,{e) and the \\ ords 7nodo 
 etfor?na, only put in issue material allegations in the plea.;^y) 
 Secondly. l)i> When the pkiintiff is not at liberty to reply de injuria to the 
 part of tlie ' '^vhole pica, but must deny *some f:articular fact or facts, it is 
 l*'*-"'- fi'si to be considered what fact he may deny ; and secondly -, the 
 
 form of such denial. (,§) 
 
 (r) 2 ni. Hep. n(>5. (</) s Co. 6r. 
 
 (fl) Witlcs, 204. 254. 1 East, 217. (e) 1 Leon. 124. Cro. Eliz. 139. 1 
 
 (6) Com. Dig. Pleader, F. 24. Sid. 39. Ante, 574. 
 
 Hoi). 76. Sir T. Ituym. 50. ( /) Ante, 470. Gilb. C. P. 51. 
 
 (c) Com. Dig. Pleader, F. 24. Cro. (j-) As to traverses in general, 
 
 Jac.599. Gilb. C. P. 153. 1 Sid. Sit. Com. Dig. Pleader, G. 
 
 Lutw. 1.384.
 
 TO A SPECIAL PLEA. 586 
 
 1st. A party may traverse or deny any material allegation in TL The body. 
 his opponent's pleading, although it might have been unneces- ^J. jYic^.^ioa*' 
 sar\' to state it so precisely as laid ; but where the allegation 1st. AVhat 
 IS noL material it cannot be traversed ; as it in an avowry, it be traversed or 
 stated that the defendant was seised in fee, though it would 'It^nict'- 
 have been sufficient to have alleged that the close was his free- 
 hold, the seisin in fee may be traversed ;(//) and a material 
 fact may be denied, though laid under a videlicet ;(0 and what- 
 ever is necessarily understood, intended or implied, is traver- 
 sable as much as if it were expressly alleged, (7) but matter not 
 before stated, or necessarily implied, is not traversable. (A) In 
 replevin and trespass to personal chattels, if the defendant justify 
 as bailiff, or by the command of another, his authority may be 
 traversed, but in trespass to real property the command is not 
 traversable, unless both parlies claim under the same per- 
 son ;(0 and when a party appears on the face of the pleadings 
 to be estopped from denying a fact, if he were to traverse it, his 
 pleading would be demurrable ;(m) euid if time, place, or any 
 other circumstance, when not material, be traversed, the opposite 
 party may demur on the ground *that the pleadings amount to ^ 587 
 a negative pregnant ;(n) as if in a plea it be stated that on such a 
 day, and at such a place, the plaintiff demised the locus in quo to 
 the defendant, as the time and place are immaterial, the replica- 
 tion denying the demise, should not put them in issue ;(o) and in 
 general the intent or virtute cnjus, as " by virtue of the said 
 <' .varrant," Sec. ought not to be put in issue ;(/?) nor is matter 
 of law or legal inference, in general traversable •,(g) as if to a 
 pica stating a public right of fishery, in an arm of the sea, the 
 plaintiff reply a prescriptive right of sole and several fishery 
 he should not traverse the public right, because it is an infer- 
 
 (//) 2 Saiiiid. 2nr. notes 21, 22. 2k (h) Com. Dig. Pleader, G. 12. 11.7, 
 
 Com. Dig. Reader, Q. See 2 Sauud. 8,9. 2Sauiid. 318. 1 Saund. 258. 
 
 175. 1. n. (o) Id. ibid, aud Com. Dig. Pleaii- 
 
 (;') 1 Saund. 170. n. 2. er, C. 2. 2 Saund. 314. 313. u. G. 
 
 ( /) 2 Saund. 10. n. 14. (/>) Com. Dig. Pleader, 7. 12 Mod. 
 
 {k) I Saund. 312. n. 4. 387. I Saund. 23. n. 5. 299. n. 3. 
 
 (0 1 Saund. 347 c. n. 4. 1 East, (ry) 2 H. Bl. 182. 5 T. H. SC7. 
 
 245. n. c. Cro. Car. 58G. \Villes, whtre4T. R. 439. was reversed. 2 
 
 100. n. b. Ante, 566. Sauud. 159. a. iGl. «. 11. 1 Saun<J. 
 
 (m) Stra. 817. 8 T. R. 487. 7 T. 2». m. 5. Com. Di- Pleader, (i. 5. 
 R. 557. Ante, 575.
 
 587 1 OIIMS AND PARTS OF REPLICATIONS 
 
 //. The hoihj. ence or intendment of Unv that the public have a right to fish 
 
 ol""il'.e^p'lcr' "^ "" ^^""^ ^^ ^'^'^ ^^^ '(^''') '^'^^ ti-averse slioukl also be on some 
 ailirmative matter, and not put in issue a negative allegation J 
 thus if a plea state a request to deliver an abstract and a re- 
 fusal, a replication that the plaintiff" did not neglect imd refuse 
 to deliver such abstract, would be insufficient. (rJ The traverse 
 also must not be too large ; thus to an avowry for 20/. arrears 
 of rent, the plea in bar must be that no part of it is in arrear, 
 and if it were merely that the said sum of 20/. is nor in ar- 
 
 * 588 rear, without saying " or any part thereof," *it would be de- 
 
 murrable ;(.s) but where to a declaration against a rector for 
 not carrying away tithe, the defendant pleaded that the close was 
 surrounded with ditches, and that the ditches, ways, and passa- 
 ges were so fdled with water that the defendant could not car- 
 ry off his tithe, a replication that the ditches, ways, ayid passa- 
 ges were not so, was held sufficient on demurrer, though in the 
 copulative, because the plea is one entire matter of excuse, and 
 the defendant relies on the whole, and not on each particular's 
 being impassable \{i) so a replication to a plea, claiming right 
 of common, traversing " that the cattle were the defendant's 
 " own cattle, and that they were levant and couchant upon the 
 " premises, and commonable cattle" was held sufficient, because, 
 though issue must be taken upon a single point, it is not neces- 
 sary that such single point should consist only of a single fact, 
 and the point of defence was the cattle in question being enti- 
 tled to common ;(w) so to a plea prescribing for tolls, and also 
 to distrain for the same, the replication may deny both prescrip- 
 tions. On the other hand, the traverse must not be too Jiar-row, 
 so as to prejudice the defence ;(t') thus, if in an action of tres- 
 pass in a common called ^J, the defendant pleads that ~4 and B 
 commons lie open to each other, and then prescribes for a right 
 in both commons, the plaintiff" must traverse the entire pre- 
 * coQ scription ;Czi') but with this *exception, a party is not bound to 
 traverse mure than one fact ; as in t-i'espass, if the defendant 
 
 (/■) GEast, 556, 557. (u) 1 Buir. 317. 5 T. R. % 3. 
 
 (s) 3 B. h P. 348. Com. Dig. (v) Com. Dig. Pleadei-, G. 16. 
 
 Pleader, G. 12. 15. 2 Saund. 207. ii. (w) 4T. R. 157. 1 Saund. 269. n. I, 
 
 34. 1 S.iuud. 268. the reason, 259. n. 2. Id. ibid. 
 
 (f) 1 Stra. 245.
 
 TO A SPECIAL PLEA. 589 
 
 justify under a prescriptive right to a duty, and the like right ^^- '^^"^ ^'"'^i'- 
 ^ ,• • r • 1- • • 1 1 . • 1 1 '2tHv. Denial 
 
 to distrain for it, a rephcution traversuig the duty without deny- of the i*lea. 
 
 ing the right to distrain is sufficient. C-^) 
 
 Replications denyintr a fiarticulnr fjct or facts, are in point of 2dly. Modes 
 form of three descripiions ; Jirnt, the plaintiff protests some ^jj''^"'' ' *^ 
 fact or facts, and denies the other, concluding to the country ; 
 or secondly^ he at once denies the particular fact intended to be 
 put in issue, and concludes to the countiy ; or thirdly^ formally 
 traverses a particular fact, and concludes with a verification. 
 
 1st. When the pleading of either party contains several mat- 
 ters, and the opposite party is not at liberty put to the whole in 
 issue, he may protect against one or more facts, and deny the 
 other ; as if in a-isumjisit the defendant plead an accord and sa- 
 tisfaction, as that he delivered to the plaintiff" and the latter ac- 
 cepted, a pipe of wine in satisfaction of the promises mentioned 
 in the declaration, the plaintiff may protest the delivery in sa- 
 tisfaction, and reply that he did not accept the wine in satisfac- 
 tion \{y) or in trespass, where the defendant in his plea has jus- 
 tified an arrest and wounding under a writ and warrant, the 
 plaintiff may protest the writ and warrant, and reply de in- 
 juria sua propria absque residua causa,(z) or may protest one 
 fact, and traverse another ;(a) and if to a plea of performance 
 *of several matters in the condition of a bond, the plaintiff * 590 
 mean only to insist on the breach of one, he may protest the 
 performance of the others. (6) This is termed a protestation^ 
 and its only possible use is, that in case the party making it 
 succeeds in the point to be tried, he thereby saves to himself 
 the liberty of disputing in any o her suit, the truth of the alle- 
 gation which is protested against. (c) It is wholly unavailable 
 in the particular suit in which it is adopted, for the allegation 
 protested against, is in effect admitted in that suit, so that no 
 evidence need be adduced in support of it, and it is of no ser- 
 vice in any other action, if the issue be found against the party 
 
 (x) 1 Wils. 338. {b) Dver, 184. a. 
 
 (y) 3 Wciitw. 135. Bac Abr. Ac- (c) 2 Saaad. 103. n. 1. Cora. Dig. 
 
 cord, C. Pleader, N. D< ct. Plac. 295. Co. 
 
 (r) 1 Burr. 320. Post, vol. 2. 644. Lii. 124. b. Plowd. 276. 
 (o) Foph. 1. 
 
 Vol.. I. r 54 1
 
 590 FORMS AND PARTS OF REPLICATIONS 
 
 TI. The hiuhj. making it, unless it be of matter which Qould not be pleade<^ 
 
 2(Ily. Denial or on which issvie could not be joined, and then the party pro- 
 of the plea. . ... 
 
 testing will not. be concluded, though the issue be found against 
 
 him ((/j It is said that matter which is the ground of the suit, 
 or upon which issue might be taken, cannot be protested, as ill 
 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 pluintiff''s action.(<') It is 
 also a rule that a protestation which is repugnant to, or incon- 
 * 591 sistent with the *plea, is inartificial and improper.(,/') In these 
 
 cases the replication should either admit the part of the plea 
 which is not disputed, by saying, " true it is that," kc. or 
 should at once deny the matter intended to be tried, though 
 the latter mode, as being the most concise, appears preferable, 
 for whatever is not traversed is.in eff'ect admitted. However, 
 a repugnant, or inconsistent, or idle, or superfluous protesta- 
 tion does not vitiate the plea, though it be shewn for cause of 
 demurrer, for the intent of a protestation is that the party may 
 not be concluded in another action.( g') Hence it appears that 
 a protestation is in general an unnecessary form,(//) and the. 
 replication may at once deny the fact intended to be put in is- 
 sue, as in the next descripiion of replications ;0) and though 
 it is not unusual, when it is doubtful whether a plea is sufficient 
 in lav/, to protest the sufficiency of it in the beginning of the 
 replication, yet this occasions unnecessary expense, for with- 
 out such protestation, the plaintiff would afterwards be equal- 
 ly at liberty to object to the plea by motion in arrest of judg- 
 ment, writ of error, &:c. In point of form, the proper place 
 in which to introduce a protestation in a plea, is immediately 
 
 ((/) 1 Sannd. 103. n. 1. Com. Dig. wliicli tliere are instances of protest- 
 Pleader, N. Bro. Abr. tit. Protestu- alions of matter, upon which issue 
 tinn. Finch. Law, 359. Plowd. 270. niipht have been taken. 
 Co. 124. b. (./■) 2 Sauud. 103. n. 1. Bro. Abr. 
 
 (e) Com. Dig. Pleader, N. 2Saimd. Pi'otestation, 1. 5. Plowd. 2"6. 
 
 103. n. 1. PliMvd. 276. Doct. Plac. {g) Com. Dig. Pleader, N. 2 
 
 29fi. Moor, 35.5, 35fi. Cro. Car. 365. bauiid. 103. b. n. 1. 
 
 3 Wils. 109. llf'. Sed quasre ; see (/;) 3 Lev. 425. 
 
 the cases in 2 Saund. 103. n. 1. in (/) See the form, 3 Lev. 105.
 
 TO A SPECIAL PLEA. 591 
 
 ■after the words actio non^ ^c.{j) and in a replication, after the //. T/ip bodij, 
 
 words firecludi non^ Scc.(X-) '^'lly. Dc-t.ial 
 
 .... - ,. . , . of tllf pk-M. 
 
 *2dly. 1 he second description of replication, a/ 077C/' (/d'Hi/? wo- ^ ^.^^ 
 
 the fiurticuiur fact intended to be fiut in is^ue, and concluding to 
 the country^ without any preamble, and without a formal tra- 
 verse, most irequeiuly occurs in practice, and on account of 
 its conciseness, sliould, when practicable, be adopted. In as- 
 sum/isit and other actions on comracis, when the plaintifl' de- 
 nies and does not confess and avoid the plea, this rt-plicalion is 
 frequent ; as that the defendant was not an infant, (/) or tliat no 
 tender was made, Scc.(///) so to a plea of accord and satisfac- 
 tion, the plaintiff may without any protestation, reply eilhcr 
 that the defendant did not deliver the pipe of wine in satislac- 
 tion, or that the pluiniilf did not accept the same in satisfac- 
 tion. (?/) So in actions in form ex delicto, in general when the 
 plaintiff denies any allegation in the plea, the better and short- 
 er method is directly to deny the fact, without a formal tra- 
 verse, and to conclude to the country Xo) Thus if the defend- 
 ant has pleaded defect of fences, or a prescriptive rii^ht of 
 common, or of way, or a license, instead of inducing- the re- 
 plication, with a repetition of the declaration, as by sayins^ 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 reasserting the matter of the piea, although 
 there has already been an affirmative and negative,) the pro- 
 per *way is to say firecludi non^ because, Sec. at once and im- -:<^ 5^^> 
 inediately denying the defect of fences, or the obligation to 
 rep^dr, or the prescriptive right of common, or way, or the 
 license, and concluding to the country. (/;) It must be ad- 
 mitted that it is every day's practice in these cases to reply 
 with a formal traverse and verihcation, but it is a practice 
 tending to unnecessary repetition, and useless expense, and it 
 
 (.;■) Plowd. 276. 2 Sii'iiid. 10,5. 11. (m) Vu&i, %<)1. 2. 602. Lil. EiU. 
 
 l.al See the forms, I'lowd. 276. 105, 106. 
 
 Com. Dig. PleadcT, X. {o) 1 Saum). 10.3. b. 
 
 (/:) Sec the forms, post, vol. 2. (/») 1 Siuiiul. 103. b. 4 Kiht. .320. 
 
 044. ,3 Wentw. 135. See the forms, jiost, vol. 2. C5U to 
 
 (/) Post, vol. 2. 594. 652. 
 
 (w) Id. 596.
 
 593 FORMS AND PARTS OF REPLICATIONS 
 
 //. The bodij. may be hoped that the observations of the learned editor of 
 
 2dlv. Dtninl Saiuidei's' Rcfwrts,{<j) will have the effect of ulterinaj the prac- 
 of the [ilea. . . . . 
 
 tice v.'hich was reprobated even ni t!ic time of William 
 III (r) and in the rei^n of Geo. 11. was considered by the 
 court as an antiquated mode of pleading, tending to unneces- 
 sary prolixity, and was said to have been altered of late. (a) In 
 this description of re])licciion, care must be taken, not to at- 
 tempt to put in issue any immaterial mat;er.(f) 
 
 odly. A formal traverse of the matter alleged in the plea, 
 and concluding with a verification, is rarely necessary ; for \vc 
 have just seen that when the plaintiff" is at liberty, without in- 
 troducing any new matter, to deny that alleged in the plea, he 
 may and indeed should concisely deny it, and conclude to the 
 country ; but ivhcn it is necessary in the rejilication^ or other 
 pleadings to shew a title in the plaintiffs or to introduce nevj mat- 
 ter iiicomiatent with that stated by the other /mrty,(b) or where 
 there are two affirmatives, which do not impliedly negative 
 * 594 each other, or a confession and avoidance by argument *oniy, 
 a traverse is necrssary, for otherwise pleadings would run to 
 infinite prolixity. (c) Thus where the defendant alleges seisin 
 in Jy from whom he claims, the plaintiff" cannot in )us repli- 
 cation allege seisin in B, from whom he claims, without either 
 traversing, or confessing and avoiding the seisin alleged by 
 the defendant :(c/) so where in replevin the defendant avowed 
 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 ijiio was parcel thereof, and the defendant replied that 
 the puiintiff/or/ji.- .'/y had common in forty acres, v.'hereof the 
 said six acres were and are parcel and all lying open together, 
 and that the plainiiff" before the distress, purchased two acres 
 p;axel of the said forty acres, v/hereby the right of common 
 became extinguished, as tliis replication did not confess and 
 
 {q) 1 Sauiul. 10;3. b. as to when a traverse is necessary in 
 
 (r) I L(i. Rayrii. G41. general, see Com. Dig. Ploiider, G. 1 
 
 (.t) I Burr. 320. to 1-1. Buc. Abr. Picas and Pleading, 
 
 (0 Ante, 586, 587. H, 1 H. Bl. 376 to 412. 
 
 (6) When necessary to shew a tl- (J) Cro. Eliz. 30. Cro. Jac. 682. 
 
 tlein ai-epiitation. Com. Dig. Plead- Cry. Eliz. 651. 6 Co. 25. b. Dyer, 
 
 er, F. 13. G. 3. 312. b. Com. Dig. Pleader, G. 2,3. 
 <<■) I Wils. 253. 1 Suiiud. 22. n. 2.
 
 TO A SPECIAL PLEA. 594 
 
 avoid the plea in bar, 11 was held bad for not traversing: the //. The ht,dy. 
 
 right ol common in six acres only :(tO so ii' a custom be plead- 2(Uy. Di ,ial 
 
 ■ , . , of the pica. 
 
 ed, another custom, repugnant to it, cannot be replied without 
 
 a traverse, but a custom or matter consisient with it may.'/) 
 In real actions, and in quarc imjicdit the pLiintitV (then called 
 the demandant) must Irequentiy state a tide in his replication 
 inconsistent with that oi ilie defendant, in which case a tra- 
 verse is necessay ;( g) *bu\ in personal actions it is not in ge- * 595 
 neral necessary to state a title in the replication, when the de- 
 fendant by his plea admits the plaintiff to be in poascasion^ 
 which is sufficient against a wrong doer •,{h) as if in trespass 
 (juare clumum frcgii^ the defendant plead that E F was seised 
 in lee of the locus in quo^ and cuieofled G //, who thereby 
 became seised, and being so seised enicofted the defendant, 
 by which he became seised until the plaintiff, claiming by co- 
 lour of a prior deed of feoffment made by E F, by which 
 nothing passed, entered, Sec. here the plaintiff rnay well tra- 
 verse the feofl'ment supposed to have been made by F, F to 
 G H, without making title, because the defendant admits the 
 plaintiff to be in possession by virtue of what amounts to an 
 estate at will, but if the plainlifi" were to traverse the title of 
 E F, then he must state his own title and conclude with a 
 traverse. (0 
 
 When a formal traverse is adopted, it ought to be introduced 
 with a proper title, or iuducnnent^k) Where no new mater is 
 stated in the replication, and a formal traverse isadopted, (though, 
 as we have seen, unnecessarily,) it is usual in trespass, after the 
 woviis fire c III di non^ kc. to induce the traverse with the allegation, 
 " that the defendant of his own wrong committed the lres[)asses 
 " complained of in manner and form as the plaintilT hath ( om- 
 " plained against the defendant, nvithout thin that" Sec. denying 
 the right of common, or way. Sec. as stated *in the plea, and con- ^ „j^^ 
 eluding with a verihcalion ;(/) but where Jieiv matter is to be 
 
 (e) 1 Leon. 43, 44. Com. Dig. (A) Id- il;i(l. 
 
 l'lc:i(!er, G. 2. (?) Sco the case in Po])ham, 1, 2. 
 
 (/) 1 AVils. 253. B.1C. Abr. Pleas (A) Com. Dig. Pleader, (;. 20. 
 
 and Pleading, H. (/) See the precedent, Rast. Ent. 
 
 (^) Cro. Eliz. 288. 670. Com. Dig. 622, 623. Co. Ent. 656. We have 
 
 Plea<ler, F. l.?. Com. Dig. Pleader, jus( secji that a formal traverse is not 
 
 3 I. If. noccssurv in this case.
 
 596 FORMS AND PARTS OF REPLICATIONS 
 
 //. The body. Stated as inducement to the traverse, it must appear to be suf<i 
 
 -'I'y- l>en':tl ficient in substance to defeat the oiiiiosUe party's allegation, 
 
 ol tiie plea. . . . . ^ ^ ' •' b » 
 
 and it a defective title be shewn, the inducement will be bad, 
 
 thou,e;h in stating it, so much certainty does not appear to be 
 requisite, as in other parts of pleading, because it is seldom 
 traversable, the other party being in general compeliabie in 
 his rejoinder or other pleading, to adhere to his own allega- 
 tion, which has been traversed. (/n^ The usual words of the 
 beginning of a traverse are, " without this that." &c. {absrue 
 hoc ;) but any words amounting to a denial of the allegation of 
 the other party are sufficient, as " et non" kc.(7z) The tra- 
 verse must neither be too large nor too narrow ; 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 in- 
 cluded ;(o} the W'ords 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. (/i) '1 he conclusion must 
 in general be with a verification, unless where no new matter 
 is stated by way of inducement, or where the traverse com- 
 prises the whole matter of the plea, in which case it may be 
 * 597 *^^ ^'^*^ coimtry.((/) It is a general luie that there cannot be a 
 
 traverse after a traAerse where the first was material, and of 
 matter necessarily allegx-d ;(r) as if the plaintiff has declared 
 on a seisin in fee in 5, who granted, &c. and the defendant 
 shews a seisin fiur autre vie, and traverses the seisin in fee, 
 the plaintiff cannot waive such traverse, and traverse that he 
 was seised Jnir autre I'ie, for this v.ould be a departure from^ 
 and desertion of, his prior allegation, and the parties are not to 
 goon ad injinitujn.{s) In some cases, however, a traverse may 
 be taken after a former apt and pertinent one ; as where in a 
 transitory action, there is a special local justification with a tra- 
 verse of the place laid in the declaration, the piaintiflf may either 
 
 (/h) Com. Dig. Pleadei-, G. 20. {q) \ Saund. 10.3. a. b. Doug. 428. 
 
 When not, see id. G. 17, 18. 1 (r) Com. Dig. Pleader, G. 17. 
 
 iSaund. 22. n. 2. ^'aiiglian, 62 1 H. Bl. 376 to 412. 
 
 (7i) C;)m. Dig Pleader, G. I. and sec the reasons, 4 T. R. 439. 
 
 (o) Ante, 586, 587. Bac. Abr. tliough the dechion was revei-scd ifl 
 
 H. 5. 5T. R. .367. 2H. Bl. 182. 
 
 (/))2Leon. 5. Hardr. 39. Com. (.9) Id, ibid. 
 Di^'. Pleader, G. I.
 
 TO A SPECIAL PLEA. 597 
 
 join in tiie defendant's traverse, or traverse the special justilica- //. The bodij. 
 
 tion, for in this case the niace laid in the declaration being im- Sdly. Denial 
 ' 01 the plea, 
 
 material, the plaintiff is not bound by it ;(/■) and the same rule 
 
 prevails where time or any other immaterial matter alleged in 
 the declaration, is traversed in the plea.(Ty) And if a traverse 
 be of matter immaterial, or of an inference of law, or not to 
 the substance and point of the action, the other party may either 
 demur specialiy, or may pass it by, and tender another *tra- * 598 
 
 verse ;(iO and 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 :iccond traverse 
 cannot be taken. (7t') A drfcct in a traverse can only be taken 
 advantage of by special demurrer ; 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 upon a general demurrer,(.r) and an 
 immaterial traverse, (V) or the want of a traverse when neces- 
 sary, is aided upon a general demurrer, and by verdict or plead- 
 ing over.(-:) 
 
 With respect to a replication denying the effect of the filea SiWj. A de.- 
 and aheiuing a particular breach^ without confessing and avoid- Unsr' a breach, 
 ing the plea, it most frequently occurs in debt on a bond condi- 
 tioned to perform covenants, &c.(a) The 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 perform- 
 ance ;(6) in the latter case to a plea of general performance of 
 the condition of the bond, the replication must state the breach 
 
 (0 1 Siiund. 22. u. 2. Com Di^. (w) Vaiighan, 02. Com. Dig. Plcad- 
 
 Pleafler, G. IS. liac. Abr. Pleas, H. er, G. 1'. 19. • 
 
 4. Lutw. 14.38. 1 H. Hi. 403. 4 T. (x) 1 Saund. 207. n. 5. 22. n. 2. 
 
 11. 439, 440. reversed, see 5 T. R. 367. Com. Dig,. Pleader, G. 22. 
 
 2H. Bl. 182. {if) 1 Saiind. 14. n. 2. 4 Ann. p 
 
 (t>) Id. ibid. IG. s. I. 
 
 00 2 H. HI. ISO. 1 Sauiul. 22. n. (=) Com. Dig. Pleader, G. 22. 1 
 
 2. Com. Dig. Pleader, G. 19. Bac. Sauiul. 14. n. 2. 
 
 Abr. Pltsasj 11.4. 1 II. Bl. 402, 403. («) Com. Dig. Pleader, F. 14, I"", 
 
 (/>) Willcf^, 12. 13.
 
 599* FORMS AND PARTS OF REPLICATIONS 
 
 //. The body, witli *pardcularity, am! should coticlude^ with a vetification, in 
 
 2(llV. Uciliill ! .1 ! I I- ! . ! ' • C 
 
 of the pica. order that the detenduni may have an opportuiuty of answering 
 it;(r) and in debt on a bond conditioned for the performance 
 of an award, if the defendant has pleaded no award, the repli- 
 cation must state the whole of the award verbatim^ and also as- 
 sign a breach ;(of) and in the case of bonds affected by the 8 th and 
 9th Wm. \l\.c. 11. s 8. the p'.uintiff should state in his replica- 
 tion, or sut^gest in case non est factum be pleaded, all the breach- 
 es of the bond, &c. on which he means to reiy.(f) 
 
 3dijr. Confes- '1]\q third description of replication admits either in words 
 
 sion ami avdi- _ ' _ 
 
 <liiMce of die or in effect, the fact alleged in the plea, and avoids the effect 
 of it by stating- new matter ; and this replication frecjuently oc- 
 curs in practice ; thus, if infancy be pleaded, the plainlift' may 
 reply that the goods were necessaries, or that the defendant af- 
 ter he came of age, ratified and confirmed the promise ;(y) 
 or in replevin, to an avowry by a freeholder for a distress da- 
 mage feasant .^ the plaintiff may pleatl in bar a demise to him 
 from the defendant ;( g) or in trespass, where the defendant 
 has pleaded .von assault demesne^ the plaintiff admitting that he 
 made the first assault, may reply shewing that it was justifia- 
 ble •,{h) so to a plea justifying under a warrant upon an informa- 
 
 * 600 tion for treasonable practices, for which *offence the plaintiff 
 had been admitted to bail by the Chief Justice of the King's 
 Bench, the plaintiff should confess and avoid the plea by reply- 
 ing a tender and refusal of bail ;(i) and to a plea of liberum 
 tenementum^ the plaintiff niay, as in replevin, reply a demise 
 from the defendant, (^A-) or from some person seised of the estate 
 before the defendant had or claimed to have any interest in the 
 locus in (]UQ ;{j[) or if the defendant has justified under a de- 
 mise, he may shew a notice to quit, or to a justification under 
 
 (c) 2 Burr. 7/4. I Suund. 101, 102. (/) Post, vol. 2. 594, 595. 
 
 PoKl, vol. 2. 6'22, 62.3. Com. Mi^. (5-) Post, vlI. 2. 634. 
 
 Pleader, F. 14,. 15. 2 New Kep. .363. {h) Po.st, vol. 2. 642, 643. 
 
 {(l) Post, vol. 2. 619. Willes, 12. (/) Ante, 563. 2 Bl. Rep. 1155, 
 
 2 SaiiiKi. 62. b. n. 5. 1 Salk. 72. 1 \h) Post, vol. 2. 648. Willes, 225. 
 Bun-. 281. 1 Saund. 317. 103. n. I & 4. 1 Kail 212. 
 
 (e) See 1 Saund. 58. n. I. 2 Sauiid. (/) Willes, 225. Dyer, 171. b. 
 187. a. n. 2.
 
 TO A SPECIAL PLEA. qqq 
 
 a distress damagc-fcasunt, may reply a subsequent conver- //• The botly. 
 
 . 3(ily. (Jonfes- 
 
 SlOn-C") sionand uvoi- 
 
 III replications of this description it is necessary that the ma- <lance of the 
 p . . . plea 
 
 terial parts of the deiendant's title be admitted either in terms 
 
 or in effect ;(/0 and it is not unusual to admit the material facts 
 alleged in the defendant's piea, in express terms, by stating 
 after the words prediuli non^ " tiiat although true it is that the 
 "said demise was made to the said defendant, as in his said 
 " plea is alleged, yet for replication in this behalf, the said 
 " plaintifi" in fact sailh that," &c. but where the plaintiff in the 
 subsef^uent part of his replication claims immediately from the 
 defendant, or states generally, " that before the defendant had 
 " any thing in the locus in quo" 8cc. this form appears unne- 
 cessary ;(o) though it may be advisable to adopt it, when the 
 plaintiff claims title from a party alleged to have been seised 
 in fee prior to the party *under whom the defendant claimed. (/?) * 501 
 
 Wlien the leplication completely confesses and avoids the de- 
 fendant's plea, it should not conclude with a traverse, (7) and 
 there is no occasion to give colour to the defendant in this re- 
 plication ;(r) though as it introduces new matter, it must con- 
 clude with a verification, in order that the defendant may have 
 an opportunity of answering it.(.s) A replication of this nature 
 must confess as well as avoid the effect of the defendant's 
 plea, and if the plaintiff rely on some excess, as an impri- 
 sonment vmder colour of process after a voluntary escape, this 
 matter should be new assigned, and not replied ;(() for a rc- 
 filication must always state matter which entitles the plaintiff 
 to his action for the same trespasses which are mentioned in 
 and attempted to be justified by the plea, of which description 
 are replications of new matter shewing that the plaintiff is a 
 trespasser ab hiido ;{v^ but when the plaintiff relies on tres- 
 passes different from those pleaded to, he must nenv assign.(u) 
 
 (w) 3 Wils. 20. (,) 1 Kast, 212. 
 
 (/i) Dyer, 171. b. Sir W. Jones, (.?) 1 Saiiiid. 103. imioiia. 
 
 352. \t) 2 AAlls. .3, 4. 2 T. K. 172. 
 
 (0) Id. ibid. Post, vol. 2. 648. I \v) 1 Saund. 300. a. 3 Wils. 20. 
 
 East, 212, 213. 3 T. R. 2'jr, 2'J8. 1 H. Bl. 5G0, 5C1. 
 
 (/>) Id ibid. Sr W. Jones, 352. (m) 2 Wils, 4. 
 
 (9) 1 Saund. 22. n. 2. 2 Saund. 28. 
 n. 2. Com. Dig. Pleader, 2 G. 3. 
 
 Vol. L I 55 ,1
 
 601 FORMS AND PARTS OF REPLICATIONS 
 
 II. Tlie bodfj. The foicrf/i description of replication, if it muy he so termed, 
 
 •ithly. N( w ; r s t, , ,.' . , 
 
 assiffiu.ifuiH '^ "'''''' o-(<fiignmmtXiu) I iiouj;h a repliCcction nmst not depart 
 
 from any muieriai alles^ation in the declaration, yet where there 
 '■^ 602 is an cvudvi plea, either as to *the wliole or a part of the 
 
 cause of action, the plaintiff may avoid the effect of it by re- 
 stating the injury for which he meant to declare, with more 
 particularity and certainty, consistently however with the more 
 general complaint in the declaration ; and this is termed u ncu) 
 or nox'cl as^sig?i7?ic>it, and may be either as to time, place, or any 
 other circumstance, when material.{x) It is frequently neces- 
 sary, in order that the defendant may have notice of the real 
 ground upon which the plaintifi' proceeds ;(j/) and when from the 
 nature of the action, as m trespass <,uare clausum fregit^ the 
 derlaration is so framed as to be capable of covering several in- 
 juiies. committed at different limes, or in different pans of a 
 close, &c. the plaintiff may frequently reply, not only denying 
 the right of common, or way, &c. stated in the plea, but also 
 new assi;i:ning trespasses committed at different times or in 
 difl'eient pciris of the close, to those nientioned in the plea. (2) 
 But wh.re the nature of the act complained of is ningle., or (he 
 plea does not at all meet the declaration, or the plaintiff does 
 not mean to dispute it, as if it justify a trespass in some other 
 place of the same name, or a different assault to that intended 
 to be complained of, the plaintiff should in that case merely 
 new assign, without traversing any part of the plea.(fl) A new 
 assignment may be made in most actions, whether in for?n ex 
 contractu or ex deiicto.ib) but it more frequently occurs in tres- 
 * 603 puss ; and in *replevin, as the plaintiff must shew the place in 
 
 certain where the taking was, it is said that there can be no 
 new assignment as to the place. (c) If to an action oi assuni/isit 
 for goods sold, the defendant has pleaded a judgment recover- 
 ed, and in fact the plaintiff has obtained a judgment in ano- 
 
 (w) As to new assigarnents in ge- (v) t H. Bl. 560. 5C2. 
 
 iieral, see I Saund. 299. ti. 6. Vin. (:) 1 Sauiid. 500. w notis. 
 
 Al3r. lit. Trespass, U. a. 4 k tit. No- {a) 1 Saund. 300. a. 
 
 vel Assig-nmeiit. R:;i-. Abf. Trespas.s, (I/) Vin. Abr. Novel Assignment, 
 
 I. 4. 2. Com. Ui:<. Pleader, 3 M. 3 ; . pi. 4, 5. Bac. Abr. Trespass, I. 4. 2 
 
 See the forPiS, post, vol. 2. 6.'i2to 657. (c) Freem. 238. 
 
 (.r) 3 Bl.Com. 31).
 
 TO A SPECIAL PLEA. 6Q3 
 
 ther nction, though for clifferen goods and causes of action, n. The bodn. 
 the pluinliff oue;ht not to reply nul Utl records but should new ^^^}y- -^'ew 
 
 ' ^ '^ ■' assignment*;. 
 
 assign that his present acdon is brought for the non-perform- 
 ance of other and different pronuses.(af) So if in case for the 
 publication of a libel, without mentioning the particular per- 
 son to whom ii was pubiisiied, the defendant has pleaded that 
 he published it lawfully, as to members of a committee of the 
 house of commons, and the plaintift' proceeds for a publication 
 to other persons not members of the commitice, he siiould re- 
 ply or rather new assign such iiiegal publication. (e) bo m an ac- 
 tion for an escape, if the defendant plead a negligent escape 
 and voluntary return, the plaintiff should new assign a subse- 
 quent escape ;(/) and if in case for disturbance of a right of 
 common, by cutting turves, the defendant picad 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.(^) It is a general rule that 
 where the defendant has committed sevtrul trespasses, either 
 upon the person, personal property, or real property of ano- 
 ther, some of which were justifiable *and others iioi, and the * 604 
 action is brought for those trespasses which were not justifi- 
 able, but the defendant by his plea answers those only which 
 were, then the plaintiff should new assign. (/;) i'hus in an 
 action of trespass, if there have been two assaults, the one 
 justifiable and the other not, and the declaration only contains 
 one count for an assault, and the defendant pleads aon asaault 
 demes7ie, the plaintiff should new assign the illegal assault •,(}) 
 but if there are as many counts as there were assaults, 8cc. and 
 some of them cannot be justified, the plaintiff" may prove those 
 without a new assignment ; and it would often be injudicious 
 in such case to new assign ; for where the declaration contains 
 just as many counts as are equal to the number of assaults, 
 &c. as where there have been two assaults, Sec. and there are 
 
 (J) Post, vol. 2. 65-2. G T. R. C07. (/) 1 Sauiid. 299. a. n. f.. 2 S-aiind. 
 
 iWcntw. 151. 5. note 3. at coiitliisioii. 2Ld. iiayiu. 
 
 (c) 2 Saiuul. 133. 1015. T?u!l. N. P. 17. 1 Esp. Rep. 
 
 (./") 1 B. k P. 41,>. 38. 6 M<h\. 117. 1 Sclwyn, N. P. 
 
 {g) Willes, G19, 020. 32. arc. Cro. C;^i-. 514, 51.5. routni,- 
 
 (h) 1 Sa«ijd. 29.9. a. u. 6. not law.
 
 (J04 FORMS AND PARTS OF REPLICATIONS 
 
 77. The body, two counts and the defendant pleads the general issue to the 
 4tlily New -yyi^oig declaration, and a justific-ition to due of the counts, the 
 plaintiff had better put the jusiification in issue, and in case 
 the defendant proves it, give evidence of tlie second assuult 
 Upon tlie second count, than make a new ussitrnment ; for if 
 the plaintiff f^iil in the proof of the allegation in the new as- 
 signment, he cannot afterwards have recourse to the second 
 count, because l)y the new assisjjnment he acknowledges that 
 one of the assaults, &;c. is justified, and has therefore aban- 
 doned one count, and relies upon tlie assault, Sec. in the new 
 * 605 assignment, therefore *he cannot avail himself of one and the 
 same act of assault, Sec. both on the new assignment and on 
 the second count ; but if the plaintiff can prove two assaults, 
 &c. besides that which he has waived, he might do so upon the 
 second count. (_;') So if in answer to a plea justifying under 
 process, kc. the plaintiff rely on an assault, &c. before the is- 
 suing of the writ, Sec. or after the return of it, or alter the de- 
 fendant was dischars^ed by the pluuiliff in the original action, 
 or after a voluntary escape, that matter should be new assign- 
 ed,(/:) and if the answer to a plea of non assault demesne be 
 that the defendant was guilty of an immoderate battery, more 
 than was necessary in self-defence, it may be put on the re-' 
 cord ;(/) and it is not unusual in these cases to deny the subject 
 matter of justification, and also to new assign, though this 
 mode of pleading may be objectionable for duplicity. 
 
 In actions of trespass to personal property, as there may 
 have been two takings, or two injuries commifed to the same 
 property, consequently there may be a new assignment ;'^m) 
 and if in trespass for taking personal properly, the defendant 
 by his plea make a local jusiification, the pltdntiff may new as- 
 
 ( /) I Saund. 299. n. b. note 6. 2 stead of new assignment, because it 
 
 T. 11. 1~7. shews the defendant a trespasser ab 
 
 {k) I Saund. 299. and id. 299. n. 6. initio, 1 Sauad. 300. a. 3 T. It. 2<%. 
 
 See the precedents and law, 2 Wils. 1 H. Bl. 560. 
 
 4. 2 T. K. 172. k post, vol. 2. 654. {m) 6 Mod. 120. Vin. Abr. Tres- 
 
 (/) \\ ilks' Rep. XT. n. b. sed quxre pass, U. a. 4. pi. 22. Bac. Abr. Tre?* 
 
 if it should not be bj' replication, in- pass, I. 4. 2.
 
 TO A SPECIAL PLEA. 605 
 
 sign ;(n) as where to trespass for taking away the plaintiff's oaks, //. The body. 
 the defendant *pleaded that the oaks were standing in a cermin 4thly. New 
 
 ^ • ■ , r ^ , r ^ \ ■ r r- assignments. 
 
 close called ^i situate in the manor ot O, the ireehold ot B, ^ f,()ft 
 wliu felled them, and justifies taking them away by the com- 
 mand of By il was held that the plaintiff might new assign 
 that the oaks were growing in the plaintiff's close within the 
 nianor of H\ and were other oaks, S<,c. than those mentioned 
 in the plea, and in these transitory actions, not only the pi.ice 
 but the time may be made material by the plea, and then tne 
 plaintiff must new assign tlie trespass at another time.' o) So 
 in an action for breaking and entering the plaintiH 's house, or 
 land, or felling his timber, or taking away his guods, if the 
 delendanl plead a license^ which the plaintiff" had revoked be- 
 fore any of the trespasses were committed, or which was con- 
 fined to some particular act, and the defendant exceeded it, 
 the plaintiff must state the revocation or excess in a new as- 
 signment. (/z) 
 
 In trespass to real /iTo/terty if the declaration does not state 
 the name or abuttals of the close. Sec. with such precision as 
 to avoid the possibility of the defendant's having a close, &c. 
 in the same parish of a similar description, and the deiendant 
 has pleaded Ubi-ruin tenemtntum^ without describing the close, 
 the plaintiff should new assign and not take issue on the plea, 
 for if he were, he would fail upon the trial, if the defendant 
 *could shew that any close in the parish or place stated in the ^^ 60"^ 
 
 declaration was his freehold.(i;/) But where the plaintiff and 
 defendant agree as to the close, the plaintiff cannot new as- 
 sign a trespass out of it^ for that would be a departure from 
 his declaration.(r) If the defendant professing to answer the 
 whole declaration, does in reality justify only part of the ties* 
 
 (n) 1 SauncI 300. a. Bull. N. P. (/») 1 Saund. 300. a. 2 Saund. 5. 
 
 92. Cro. Jac. 141. Freem. 238. 1 coticlusion cf i^.te 3. 
 
 Salk. 453. Coke ■». Evans, 6 Mod. ( ry ) 'i Salk. 45.5. 6 Mod. 119-— 
 
 120. Gould. 191. Vin. Abr. tiu \\ illes, 223. 2 Bl. Ri-[,. lOS-. 7 T. 
 
 Trespass, U. a. 4. pi. 16. lil. Novel K. 335. 1 .Saund 29'J. b. c. Ather- 
 
 Assigutneiit, A. pi. 9. ton m. Pricliard, E. 43 G«'f'. £11. (jom. 
 
 (o) Id. ibid. 2 1^. Rajm. 1015. big. Pleader, 3 M. Si ace. Dyoi-, 
 
 l,ey. 110, in. 2.1. co?u/-. 
 
 (;•) 1 Sannd. 30^.
 
 607 FORMS AND PARTS OF REFLICATIONS 
 
 II. The body pass for which the action is brought, ^the plaintiff must ne'ft' 
 
 4thly. New assign as to the residue, and if he doubt the iruth of the lus- 
 "dssignmeiits. . , . •' 
 
 tiiication, should also reply to it; for it is necessary in in >ny 
 
 cases to traverse, or oUiervvise answer the plea, and uiso to 
 new assign ; as where the defendant pleaded, Hhat the house 
 mentioned in the declaration was called Chouse, and one of 
 the closes Black Jcre, and the other White Acre^ and that tliey 
 were his freehold : the plaintiff traversed that C house, and 
 Black Acre were the defendant's freehold, and new assigned 
 the trespass in twenty acres, other than IVhUc Acre., and it was 
 objected that the new assignment was a waiver of the former 
 pleadings as to all, and therefore the plainiiff ought not to have 
 traversed : but the court held it proper, for as the defendant 
 had pleaded to some of the pKices, in which the plaintiff in- 
 tended to lay the trespass, the plaintiff was at liberty to answer 
 that part, and the defendant should not waive the plea and plead 
 ^ 608 *" '^^' '^^ novo.{.s) So *where an action was brought for fishing 
 in the liver 7', being the plaintiff's fishery, and the trespass 
 intended by the declaration is for fishing to the extent of two 
 miles and upwards ; if the defendant plead that he is seised in 
 fee of ten acres adjoining the river, and prescribes for a free 
 fishery in the river, along the side of the ten acres, the plain- 
 tiff 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 con- 
 fined 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 below, and then the defendant will be under the necessity 
 of giving some answer to the whole trespass ; and it has been 
 observed that in this case without a new assignment, the plain- 
 tiff would run great risk of being tricked, for otherwise, if the 
 prescription vv'ere found for the defendant, the latter would suc- 
 ceed in the action, though guilty of almost the whole trespass 
 for which the action was brought.(i) So where a right of way 
 is claimed, which is disputed by the owner of the close, and 
 
 (s) Cro. EUz. S12. 1 Saund. 330. (0 1 Saund. 300, 
 HOte 6.
 
 TO A SPECIAL PLEA. 608 
 
 the defendant has comnjitted trespasses in other parts, besides 11. The body. 
 those over which he claims the way, if the defendant plead ^^''/j;,^'^^^ 
 the right of way, the plaintiff" must traverse it, and further 
 state in a new assii^riment, that the delentkint comniittcd 
 ♦trespasses in other parts of the close. (w) So where in tres- ^ 609 
 
 pass, a yrant of a way. or of common, has been pleaded, if the 
 defenuant has used the way Sec. in a different manner from 
 what !.c Was entitled to do under the grant, the plaintiff" must 
 new assign \{w) thus if to trespass ..uare claui^um fregit with 
 cattle, the defendant has prescribed for commonable cattle, le- 
 vant and couc/mtit. and has plei.ded that the cattle mentioned in 
 the declaration were such cattle, and in truth the defendant has 
 put on such cattle, and also other cattle not /cvunt and couchunt^ 
 the plaintiff should new assign, stating that he brought his ac- 
 tion tor depasturing the common with other cattle, and should 
 not traverse the Irvancy and couchancy .{x^ There are some 
 replications which rather partake of the nature of new assign- 
 ments than i*re properly and strictly so ; as where the defend- 
 ant has abused an authority or license which the law gives 
 him, by which he became a trespasser ab initio^ and then if he 
 plead such license or authority, the plaintiff" may reply such 
 abuse.(t/) Many of the replications confessing and avoiding 
 the action, which have been considered are of this nature. (z) 
 By aew assigning the plaintiff may frequently obtain full costs, 
 which otherwise he would not recover; thus on a plea of not 
 guilty to a new assignment of extra xnam^ the plaintiff' though 
 he sliould obtain a verdict for less than forty shillings damages, 
 is entitled to full costs without a judge's *certificate, unless the * 61.0 
 
 Way pleaded was set forth by metes and bounds. (z) 
 
 In point oi form there are two modes of introducing the 
 niatier new assigned. If the plaintiff" traverse the plea as well 
 as new assigns, after framing the replication to the plea, as in 
 
 (m) 1 Saiind. .300. SOD. a. Wils. 20. 3 T. R. 292. 1 H. Bl. 
 
 (w) 1 Saund. 300. a. 555. 1 T. R. 338. 
 
 (a-) 1 Sauiid. .340. d. sed qusere. (z) Ante, fiOl. 
 See Ante, .-iRS (:) Tidd's Prac. 3d edit. 88S. 4lli 
 
 {»/) I baund. 300. a. 8 Ce. 146. 3 edit. 867, 868. 1 East, 351.
 
 610 FORMS AND PARTS OF REPLICATIONS 
 
 //. The boily. ordinuiy cases, the form runs thus :(«) " And the said plaintiff 
 
 4thly. New u further saith, ihiit he exhibited his bill utijainst the suid de- 
 assigiinieiits. _ ^ 
 
 " fendant, and brouglit his action thereupon not only for tae 
 
 " said several trespasses in the said second plea mentioned, and 
 " therein attempted to be justified, but also ior ihat the saidde- 
 " fendant on, &.c. at," &c. (stating the matter new assigned ;)(6) 
 but if the plaintiff /«6'7-f/y new assigns, then the form is thus: 
 " And as to the s<-.id plea of the said defendant by him second- 
 " ly above pleaded, the said plaintiff saith, that he by reason of 
 " any thing by the said deftudant therein alleged, ought not to 
 " he barred from having and maintaining his afoiesaid action 
 ** thereof, against the said defendant, because he, saith that he 
 " exhibited his bill against the said defendant, and brought his 
 " suit thereupon, not /or- the said supposed trespasses in the in- 
 " troductory part of the said second plea, mentioned, but for that 
 " the said defendant on, Sec, at," 8cc. (stating the matter new 
 assigned.)(c) A new assignment being in the nature of a new 
 * fill declaration, should be equally certain as to time, *place and 
 
 other circumstances,((/) and it must not be negatively thai tlie 
 trespasses mentioned in the plea were not the same as those 
 for which the plaintiff complained, but some other trespasses 
 must be shown (c) If the new assignment be in another close 
 or /ilace, the plaintiff should give the place a name, or other- 
 wise describe it with some certainty,(y") and which on not guil- 
 ty thereto, must be proved as stated ;(§•) and if it be in the fiume 
 close, it is said the particular spot should be set forth in such 
 a manner as that a plain difference may be perceived between 
 the place so new assigned and tliat mentioned in the plea ;(/i) but 
 where a right of way is pleaded it is usual to new assign ex- 
 
 (c) See tlie forms, post, vol. -2. 654, (A) 1 Saund. 299. c. Vin. Abr. 
 
 655, 656. tit. Novel Afsigiiment, A. Bro. Tres- 
 
 (6) Post, vol. 2. 656. 1 Saiintl. 300. pass, 2(.)3. See the form, post, vol. 2. 
 
 (c) See the form, vol. 2. 657. 2 656. 2 Co. 6. a. 18. b. 
 
 Co. 6. a. 18. b. 1 Saund. 300. a. 2 {g) Com. Dig. Pleader, 3 M. 34. 
 
 Co. 6. a. IS. b. 'N'in. Abr. Trespass, U. a. 4. pi. 13. 
 
 (</) Com. Dig. Pleader, 3 M. 34. &c. Bull. N. P. 89. 1 Term Rep. 
 
 Vin. Abr. Trespass, U. a. 4. pi. 13. 479. 
 
 Bac. Abr. Trespass, I. 4. 2. Dyer, (A) Id. ibid. Yin. Abr. Trespass, 
 
 25 i. a. U. a. I. pi. 3. 
 
 (e) 3 1.eou. 92 Post, vol. 2. 652. n. e.
 
 TO A SPECIAL PLEA. ^U 
 
 it'a viam, -without shewing in what particular part of the locus 11. The body. 
 
 in mio.ii) '^^^.'- ■ ^''''' 
 
 ■' assignnieuts. 
 
 When the defendant justifies under a rit^ht of common, or 
 way, &c. at particular times of the year, or in particular parts 
 of the close, &c. the plaintiff may new assign that the trespasses 
 were committed " at other tijua., and on other occasion.s^ and 
 ^^for other and different Juirfwses than those mentioned in the 
 " /ilea ;" or that the defendant " in a greater degree, and with 
 *' more force and violence than was necessary for removing 
 '' *the supposed obstructions to the said supposed way, Sec. * 612 
 
 " cut down the gates," &c.(^) The matter new assigned must 
 be consistent with the declaration, and not varying from or 
 more extensive than the trespasses therein enumerated, (/) or 
 those which the defendant has in his plea professed to answer ; 
 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. Sec. at all times of the 
 year, the new assignment should not be that the defendant, 
 " at other times," See. time in that case being immaterial ; 
 and in an action of trespass against several, if some of the de- 
 fendants suffer judgment by default, and the otiiers plead a justi- 
 fication, the new assignment should be as to ail the defendants, 
 and not merely to those who have pleaded, for that would be a 
 departure. (nz) 
 
 The conclusion of a new assignment must be with a verifi- 
 cation, in order that the defendant may have an opportunity of 
 answering it,(n) and after stating the matter newly assigned, 
 tlie 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 there- 
 *' in attempted to be justified ; wherefore, "inasmuch as the said jije- g]^ 
 
 " defendant hath not answered the said trespasses above newly 
 
 (i) Post, vol. 2. 65G, 657. Sed vid. (m) 2 Leon. 199. Com. Dig. Plead- 
 
 Vin. Abr. Trespass, U. a. 4. pi. 3. er, F. 11 . 
 
 (fr) See the forms, post, vol. 2. 65G, (/j) Bac. Abr. Trespass, I. 4, 2, 
 
 C57. Lutw. I4yi. 1 SauQd. IQ3. 
 
 (/) Vin. Abr. Trespass, U. a. 4. pi. 
 \9. Win. G5. 4 Leon. 15, IC. 
 
 Vol. I, [ 56 ]
 
 613 FORMS AND PARTS OF REPLICATIONS 
 
 //. The body, a assisjned, the said pluiniiff prays judgment, and his damages 
 4llilv. Xcw ,, 1 , • • , • p , ' • • 1 i- . 
 
 assimimc*tits. "Y ""^^ sustiuiud on occasion ol the committing thereoi to 
 
 " be adjudged to him," 8cc.(o) and though with respect to the 
 
 latter part of this conclusion it has been sdd that it would be 
 
 more correct it" it were to slop at the words, " et hoc paratun est 
 
 " verijzcare." without praying judgment against the defendant 
 
 for not answering the trespasses newly assigned, when it was 
 
 impossible he should answer it before it was alleged ;(//) yet 
 
 it may be observed that matter newly assigned is always c onsi- 
 
 dered as having been already stated in the declaration, and 
 
 consequently the defendant migh» have answered it. 
 
 Pleixliiigs A new assignment being, as already observed, in the nature 
 
 tJiei«oii. .. , ', . ' . . . , . I ■• 
 
 of a new declaration, and dismissing the previous pleadings 
 
 from consideration, so far as respects the matter newly assign* 
 ed, the defendant should plead to it precisely as to a declara" 
 tion,(y) either by denying the matter new assigned, by the 
 plea of not guilty, Scc.(r) or by ansv-ering it by a special plea 
 of matter of jusiification,(.v) and he may plead several pleas ;(0 
 and as the pluintiir avers that the trespasses new assigned are 
 other and diHercnt to those mentioned in the plea, he waives 
 * 6l4 or abandons the *trespasses which the defendant has justified, 
 and it is not necessary to plead over again to the new assign- 
 ment, any m..tler of justification necessarily covered by the 
 pica ; as if common of pasture at all times of the year be 
 pleaded, and the plaintifl' new assigns that the defendant enter- 
 ed at other limes ;(;.) and ilicrefore the defendant cannot plead 
 to the new assignment, that the place or trespass, &c. men- 
 tioned therein, is the same as that mentioned in the plea, and 
 if in truth tiiey are the same, the defendant should plead not 
 guilty, and take advantage of it in evidence, as the plaintiff 
 would be estopped from proving any trespass in the same place, 
 &c.(t) and for the same reason the defendant cannot justify at 
 
 \o) See tlio form, 2 Co. C. ii. IS. h. (/) Hue. Alu-. Ti-espas.s, I. 4.2. 
 liast. Knt. nos. Tost, vol, 2. 053 lo («) (iou'.ds. 191. Moore, 54(K 
 
 G5r. & U Wentw. Index, CXX1^^ Cio. Eliz. .i'SO. S. C. aud see the cases 
 
 { ft) Vvcem ..j8. in nest note. 
 
 (</) tionlus. li)i. :Moorc, .^io. (t) Id. iljid. Yin. Abr. Trespass, U^ 
 
 (Jru. Eliz. r,WK S. C. a. 4. pi. y, 10. Bnc. Abr. Trespass, I. 
 
 (r) See tliclbirii, post, vol. 2. P,rn. 4.2. 1 Saiiiid. 299. e. 1 15. Ci-o. F^liz. 
 
 AIji-. tit. Ftespjiss, pi. ;3.')9. .35.'). 493. 14 Heu. VIII. 4. pi. 3. Bra. 
 
 (.?) Hro. Abr. tit. Trespass, pi. ICS. Trespass, IfiS. 27 Hen. YIII. 7. pi. 
 
 203. j5'.). 21. Bro. Trespass, S,
 
 TO A SPECIAL PLEA. 614 
 
 a different place, and traverse the place mentioned in the new //. Thebndtj. 
 
 assitcnment ;Uy) and when the plaintiff traverses the t'lea, as ^thly. New 
 . assignments, 
 
 well as new assigns, the defendant cannot, as to tlie nialter an- 
 swered in the plea, plead new matter, but must stand by his 
 plea.(x) 
 
 To the pica or pleas to the new assignment, the ])li;intiff Replication to 
 
 . . ,, pKa lo a new 
 
 should retiiy precisely as to pleas to a declarutiun, and li tl.e assignment. 
 
 plea be such as would re'iuire a new assiijnnicnt if pleaded, to 
 
 a decluration, the phiiniiff should again new assign to such 
 
 plea.(v) 
 
 The conduHion of replications in p'.u'ticular *instances has * 615 
 
 already been poinied out ;C~3 audit may here sutVice to observe lU.'Vhe cou- 
 
 . . . elusion, 
 
 that when a replicution denies the whole of the defendant's plea, 
 
 containinj^ matter of fitct, it should conclude lo the country 
 thus : " and this he tlie s^iid plaintiff prays may l)c inquired of 
 *' by the country," Sec. (a) and it is an establi-shed rule applicable 
 to every part of pleading, subsequent to the declaration, that 
 when there is an uRirmalive on one side, and a negative on the 
 other, or vice, vena, the conclusion should be to the country, 
 although the affirmative and negative be not in expiess words, 
 but only tantamount thereto ;(6) and it may also be laid clown as a 
 safe rule that where a defendant cannot take any new or other is- 
 sue in his rejoinder, than the matter he had before pleaded, w ith- 
 out a departure from his plea, or where the issue on the rejoinder 
 would be the same in substance as on the plea, the plaintiff 
 should conclude to the countiy :(f) and it is not material in 
 this case whether the replication contain a formal traverse, for 
 where a traverse comprises the ivhole matter of the plea, the 
 replication may stiil conclude to the country .(f/) This conclu- 
 sion is also proper where a particidar fact is selected and de- 
 
 ' (w) Bro. Abr. Ti-espass, pi. IdS. sioa in •general, Com. Die;. IMcmiIit, 
 
 Vin. Abr. Trespass, U. a. 4. pi. 'j, F. 5. 
 
 10. 15. («) 1 Saiiiul. lO.S. 1 Hiivr. .116. 2 
 
 (r) Ci-o. Eliz. 812. Rae. Abr. Burr. 102-2. l)ou<j. 94. 4'2S. '2T. li. 
 
 Trespass, 1. 4. 2. 442, 44.3. 
 
 (t/) 1 Saund. 299. c. Sf!e tlic pre- {b) 1 Saund. 10.1. 2 New Kcp. .IC:. 
 
 cedents referred to iti 9 Wentw. In- (c") 1 Samul. \M. b. .Vnd see the 
 
 dcx. 2ro. 6. k post, vol. 2. C7.i. reason, 2 Saund. ISO, 100. 
 
 (r) Ante, and see as to the concln- ( d) 1 Saik. 4. 1 S^uud. in.3. ». I,.
 
 C15 FORMS AND PARTS OF REPLICATIONS, &c. 
 
 lU rite con- nied, vvithoal any inducement or fonrniL traverse ;(e) but the 
 M. 7-1^ pL'intifi lb stiii *ut iibe.riy, where he only denies one of sever^ 
 
 ftcis. :.nd not tJie whole substance of the plea, to commence 
 his replication with an inducement, and formally to traverse 
 the particular fact, and conclude with a veriiication, though 
 ti.is, as already observed, tends to unnecessary prolixity, delay 
 and expense ;(/) and when this form is adopted, the conclu- 
 sion should be with an averment and prayer of damages or of 
 the debt and damages.( ,(,'•) It is a general rule that when new 
 matter is alleged in the replication, it should conclude with an 
 averment, in order to give the defendant an op))ortunity of an- 
 swering it;(A) end an approi)nate /27Y/yr;- of Juds^^metit for debt 
 and damages only, according to the form of action, and the 
 subject matter of dispute, and not merely wide fietit jitdic'nan 
 if he actione firecludi debet. But when the defendant would 
 noi be at libeity to traverse or answer the new matter without 
 a ilepanure, the replication may, notwithstanding the introduc- 
 tion oi' new matter, conclude to the country ; as if to debt on an 
 award, the defendant plead mil agurd^ and the plaintiff reply 
 an award, and set forth a breach, it is said that he may con- 
 clude to the country. 0") though a conclusion with a verification 
 * fil7 is most usual. (A-) Where matter of estoppel *is replied, the 
 plaintiff should rely on it, or he will lose the benefit of it.(/) 
 and \k is usual to conclude the replication in that case with a 
 verification and prayer of judgment, if the defendant ought 
 to be admitted or received against his ow-n acknowledgment, 
 &CC. to plead his plea ;(?«) but in this, and indeed all other re- 
 plications, it is sufficient alter the proper verification to pray 
 judgment generally, without pointing out the appropriate judg- 
 ment ;(?i) and where the word " certify" -was by mistake in* 
 
 (e)2T. R. 349, 1 Salk. 4. 1 Ld. II. 570. 4 Mod. 37G. As to conclu- 
 
 Ravm. Gil. 1 Saund. 103. a. b. Say- sioa of matter when in negative 
 
 er, 234. WiUes, 0. 
 
 (/) Id. ibid. 2 T. R. 442, 443. 1 {i) 1 Saund. 327. n. 1. cites 3 Lev. 
 
 Burr. 320, S'-il. 2 Str.i. 871. 2 Wils. 105. 
 
 113. Doug. 428. {k) Post, vol. 2. 6iy. 
 
 (^•) Id. ibid. S.nyer, 234. 1 Salk. 4. (/) 1 Saund. 325. n. 4. 1 Co. 52. a- 
 
 1 Burr. 31 y. 2 T. R. 442, 443. {m) Post, vol. 2. 502. 590. Wiiles, 
 
 (/)) 1 ^aund. 103. n. 1. 327. n. 1. 2 11. 13. 
 
 Saund. 6.5. g. Carlli. 337. . 1 Lutiv. {■») ^^'illes, 13. 1 Saund. 97. a. 4 
 
 iOl. 2 WUs. 66. Doug. 60. 2 T. East, 502. 509.
 
 THE QUALITIES OF A REPLICATION, &c. 617 
 
 serted instead of " verify" the court appeared to consider the ///. The can- 
 replication sufficient,(ci) and unless assigned specially as cause 
 «f demurrer, a defect in the conclusiun of a replication is aid- 
 cd.(/^) 
 
 ///. THE qUALITIES OF A REPLICATIO.X. 
 
 The qualities of a replication, in a great measure resemble 
 those of a plea,(«) and are : Jirst^ 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. Secondly^ that it must be conformable 
 to, and not depart from the count. Thirdly, that like a plea, 
 it should be certain, direct and positive, and not argunienlativc, 
 and also that it be triable ; and J'ouri/ily, that it must be single. 
 
 *lst. We have already seen the consequences of a disconti- *' 618 
 
 nuance where the defendant has omitted to plead to a part of ^- •^^''■'' f"- 
 
 ' ' sii'er the plea. 
 
 the plaintiff's demand, or has professedly pleaded to more or 
 less than the plaintiff proceeds for, or where one of the de- 
 fendants has not pleaded at all, and the conduct which the 
 plaintiff should then adopt, has been pointed out.(i) A repli- 
 cation also should answer so much of the plea which it profes- 
 ses to answer, or it will be a discontinuance ;(c) and it is a rule 
 that an entire replication bad in part is bad for the w hole ; as if 
 to a plea of the statute of limitations to two counts of a decla- 
 ration, the plaintiff should reply that the accounts were between 
 the plaintiff and defendant as merchants, if this plea should be 
 bad as to one of the counts, it is bad also as to the other ;(r/) 
 but this rule does not apply where the matter objected to is 
 merely surplusage ;(<?) and where a defendant, executor or ad- 
 ministrator, has pleaded several judgments outstanding, it 
 would be a sufficient answer to the whole plea to deny the va- 
 lidity of one of the judgments. (/) 
 
 (o) Willcs, 6, 7. (r) Com. I>ig. Ple;idor, F. 4. W. 2. 
 
 (/)) 16 k 17 Car. II. c. S. 4 Ann. 1 Saund. 338. 
 c. 16. s. 1. 1 Saiind. 09. n. '2. {d) Com. Di.^. Pleader, F. 25. ;3 
 
 (<() Ante, 506 to 521. T. i:. .i7Ci. 1 Satind. 2S. n. 3. 2 Saiiinl 
 
 (6) Ante, 509, 510. and see Com. 12r. 
 Di- Pleader, F. 4. W. 1,2, 3. I IJ. (t-) !<I ibid. 3 T. K. 374. .577. 1 
 
 ic P. 411. Kast, 219. 
 
 (./"I I Samid. .1.17. lvn.2.
 
 •618 THE QUALITIES OF A RF.PLICATION, &c, 
 
 //. ^lust not 2dly. It is also a settled rule that the rejilicalion must not (/<■• 
 
 depart from . ^ ,• , ., • • i i , • • 
 
 dfclamtion /'^'"'^ liom the allcgcitions \\\ the {Icclarution m any material niat- 
 
 '*^'^- ter, a rule which equally afl'ecls rejoinders and subsequent 
 
 pleadings. A departure in pleading is said to he, when a party 
 quits or departs from the case or defence which he has first 
 
 ^ 619 made, and has recourse *to another; it is when his replication 
 or rejoinder contains nictier not pursuant to the declaration or 
 plea, and which does not support and fortify it.(^) A depar- 
 ture in pleading is not allowed, because the record would by 
 such means be spun into endless prolixity, for if it w ere per» 
 milled, he who has departed from and relinquished his first 
 pica, might in every di fie rent stage of the cause resort to a 
 second, third, or even further defence, and thereljy pleading 
 •would become infinite ;(/t) 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.(?) A departure may be either in the substance of the 
 action or defence, or the law on which it is founded ;{]) as if a 
 declaration be founded on the common law, and the replication 
 attempt to maintain it by a spcci.d custom, or act of parlia- 
 ment ;(A-) so if in replevin fqr taking the plaintiff's goods and 
 chattels, to wit, a lime-kiln, the defendant avows under a dis- 
 tress for rent, and the plaintiff pleads in bar that the lime-kiln 
 >vas affixed to the freehold : this is a departure, the declara- 
 tion being for goods and chattels, and the plea in bar stating 
 the property to be part of the freehold. (/) So where in as- 
 sian/isit by an executor on several promises, which were all laid 
 to have been made to the testator, to which the defendant plead- 
 
 ^ 620 ed the statute of limitations, and the plaintiff replied a *subse- 
 quent promise to himself, the replication was held to be a de- 
 parture, and therefore bad ;(/) a variety of other instances are 
 collected in the Digests. (?«) But a departure more frequently 
 
 is) 2 Sanml. S4. a. n. I. Co. Lit. (/} 4 T. R. 504. 2 Samul. 84. b. 
 
 304. a. 2Wi!s D8. (/) 2 Saund. 63. g. 81. c. "Willes, 
 
 (/i)2Sausul. 84. a. n. 1. 2'.). 1 Sulk. 28. 6 Mod. 309. 2 bti-a. 
 
 (?) Suniniary on PleadiiiE?, 92. 8<J0. 3 East, 409. 
 
 (./) Co. Lit. 304. a. 2 Saiind. 84. a. (m) Com. Di^. Pleader, F. 6, 7, 8, 
 
 {h) Co. Lit. .304. a. Com. lYi'^. 9. ^c 
 Picader, F. 7, 8.
 
 THE QUALITIES OF A REPLICATION. 620 
 
 occurs in a rejoinder ;(") thus, if in an action of debt on an arbi- 77. ,^^tlit not 
 iraiion bond, tlic defendant plead that no award was made, and [leclavutlon^ 
 the plaintiff in his replication, sets out an award, and assigns '^'^' 
 a breach, the deiendant cannot rejoin that an award was not 
 tendered, or that it was void on account of some extrinsic fact,(o) 
 or that the defendant huth performed or been ready to perform 
 it ;(/.') but the award being set out by the pl.iiiitiff in his re- 
 plication, and the defect appearing on the face of it, the de* 
 fendant may demur, though he could not avail hiu>self of any- 
 extrinsic facts. (7) So in an action of debt on bond, condition- 
 ed for the p.tvment of an annuity, if the defendant plead no 
 such memorial as the statute requires, and the plainliir replies 
 that there was a meniorial which contained the names of the 
 parties, &c. and the consideration for wliich the annuity was 
 granted, and the defendant rejoins that the consideration is un- 
 truly alleged in the memorial to have been paid to both .obli- 
 goi's, for that one of them did not I'eceive any part of it ; this 
 rejoinder, stating a new fact, is bad, as being a departure from 
 the plea.(r) So in an action of debt on bond, conditioned *for ^ 521 
 
 performance of covenants, if the defendant plead performance, 
 and the plaintiff reply and assign a breach, the defendant can- 
 not rejoin any matter in excuse of performance. (r) So, Vvhere 
 in trespass for impounding the plaintiff's mare, the defendant 
 pleaded that she was doing damage to the king in his forest of 
 ll'altham, and the plaintiff replied a right of common in the 
 forest, and the defendant rejoined that the mare was mangy, 
 and doing damage, and that, therefore, he took and impound- 
 ed her : this was held to be a departure from the plea, be- 
 cause the plea was, that the mare was doing ^ firivate trespass 
 to the king in his forest, and that, thcicf'jre, the defendant 
 impounded her, but the rejoinder is that the marc was mangy, 
 whiph is a common nuisance.(s) And where in trespass for 
 
 (7/) See i<1. ibid, for the inslanees (9) t Snlk. 72. 1 S.iund. 103. n. I. 
 
 of a (Icfoclive rej(nii(Jcr, and 3 SaTiiid. 2 Hamid. C'2. b. n. 5. 
 
 85, 84. n. 1. 1S8. 1 Saiiiid. 117. 11. 3. (r') i T. 11. 5S.5. -2 H. Hi. 2fiO. 
 
 3-ifi. c. (r) '2 Samid. 8.3. c. Co. Lit. 304. a: 
 
 (o) 1 Lev. 85. 127.133. I Wils. Com. Di;?. I'kader, F. 6. &c. 
 
 122. 4 1". R. 583. (*} 2 Wils. 96. SSauud. Si. b 
 
 ili) I Sill, la
 
 621 THE QUALITIES OF A REPLICATION, &c. 
 
 //. .llnsf ml impounding; the plaintiff's ox, the defendant justified the taking 
 
 ilelifvt fvnm ' • ■ ■ rr- ■ " • 
 
 (leclanuinn, cUanage-fca.sant^ and the pluiniiff entitled himself to common 
 *^'"' of pasture for one ox in the place in which, See. and the de- 
 
 fendant rejoined that the plaintiff had surcharged the com- 
 mon ^vith that ox, it was adjudged that the rejoinder was a de- 
 parture from the pica, because there is a great difference be- 
 tween damagc-ffumnt and a surcharge of common, and the 
 surcharge should have been pleaded at first.(^) 
 
 But matter which maintains and fortifies the declaration or 
 * 622 plea, is not a departure, (;i) as *in trespass for taking a horse, if 
 the defendant justify for a distress damage -feasant^ the plaintiff 
 may reply that the defendant afterwards used the horse, which 
 shews that he was a trespasser, ab initio.(v) So if to debt on 
 bond to uidemnifythe plaintiff from tonnage due to A^ the de- 
 fendant plead 71071 damnificatus^ and the plaintiff replies that A 
 distrained for the said tonnage, and the defendant rejoins that 
 nothing was due to A for tonnage, this is not a departure ;(w) 
 and if the plaintiff vary in his replication from his count, or 
 the defendant in his rejoinder from his plea, in time, place, or 
 other matter, when immaterial, it is not a departure ; as if in 
 a declaration, a promise be stated to have been made twenty 
 years ago, and when the defendant pleads the statute of limi- 
 tations, the plaintiff replies that the defendant did undertake 
 within six years ; this is not a departure, because in this case 
 the statement of the time in the declaration was immaterial. (jr) 
 So if in trespass for an assault at //, if the defendant pleads 
 onolliter ma77us imfiosuit 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 departure ; for in transitory actions, the venue in th& 
 declaration is imiTiaterial-C^) In the case of a deed or a pro- 
 missory note, though there are dicta to the contrary ;(r) and 
 tliough the plaintiff cannot vary from an express statement of 
 
 (0 1 Salk. 221. Willes, C38. 2 (.r) Com. Dig. Pleader, F. 11. 
 Swmd. 84. c. ( J/) III. ibid. 1 Salk. ii'22. 1 Ld. 
 
 («) Com. Dig. Pleader, F. 11, Raym. 1'20. 
 
 (tj) Id. ibid. 1 Salk. 221. 3 Wils. \z) Seethe cases cited in Tidd's 
 
 20. Cro. Jac. 148. Vim. ith edit. 630, 631. 
 
 (-y) Fortes. 341. Com. Dig. Plead- 
 trr, F. 11.
 
 THE QUALITIES OF A REPLICATION, &c. *623 
 
 the date *of a written instrument, yet lie may reply, or shew II. Must not 
 
 1 vrr .1 depart from 
 
 in evidence thut it was really made on a day ditteren; to tne aedurukon, 
 
 date ;(rt) and where a bill or note is stated in the declaration 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 acknowledgment within six years, be shewn in 
 cvi.i. nee under a replication to the plea of the statute of limi- 
 tations. (6) But where time or place, or any other circum- 
 stance is material, the plaintiff" cannot, as v/e have seen, vary 
 from his previous statement of it ;(f) though where matter of 
 defence has arisen pending the suit, it may be pleaded fiuis 
 darreiii continuance^ relicta -verijicatione of the former plea ; 
 as if in an action against a person as executor, he plead a re- 
 tainer for a debt due to himself, and the phdntiff" reply that he 
 was only executor de son tort, the dcfcndcint may, by way of 
 plea /luiis darreiji continuance, rejoin that he has since obtained 
 letters of administration. (J) 
 
 The only mode of taking advantage of a departure is by de- 
 murrer, which may be either general or special ;(«■) and if the 
 defendant or the plaintiff", instead of demurring, take issue 
 upon the replication or the rejoinder, containing a departure, 
 and it be found against him, the court will not arrest the judg- 
 ment.C/) * 624 
 
 *3dly. Another quality essential to a replication is certainty.^ ui. The car- 
 and it is said that more is requisite in a replication than a de- rgl\,f'if^'" 
 claration, though certainty to a common intent is in general 
 sufficient. (^•) Where the replication is only to a. part of the 
 plea, the part alluded to should be ascertained with certainty, 
 as if in assumpsit on several promises, the defendant has plead- 
 ed infancy, and the plaintiff" replies that part of the goods were 
 for necessary food, and part for clothes, it is said to be insuffi- 
 cient if he do not shev/ what part was for the one and what for 
 
 (a) 4 East, 477. (r) 2 Saund. 84. d. 2 Wils. 96. 
 
 (/j) The case iii 10 Mod. 312. is Qiixre if it ought not to be a spe- 
 fiot hiw, and what vas said in Stra. cial demurrer. Com. Dig. Pleader, F. 
 
 22. k 806. as to a promissory note, 10. I baund. 117. 
 
 was extrajudicial. (/) Sir T. Uaym. 86. 2 Sauud. 
 
 (c) Ante, 622. 84. d. 
 
 (</) 2 Stra. IIOO; (^) Com. Dig. Pleader, F. 17. 
 
 Vol. I. [ 57 ]
 
 624 'f HE QUALITIES OF A REPLICATION, See. 
 
 ///. Tlie cer- the Other {h) In general, also, when material to the action, 
 reou^site '^ 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, ii should seem with 
 analoj^y to pleas in bar, that as the time and place meniioied 
 in the declaration, must, when immaterial, be adhered lO, no 
 repetition of either would be necessary ;(?) we have seen tliat 
 where particularity in pleading would tend to great prolixity, a 
 general allegation is allowed, on which principle it is settled 
 that in debt on a bond to account for all monies, Sec. which tlie 
 defendant or a third person should receive in the course of a 
 certain employment, it is sufficient to assign the breach gene- 
 rally, that divers sums of monejrwere received from divers 
 * 625 persons. See. without naming from whom in particular.(y) 
 JV. Ml/St be *4thly. The replication must not be dou6Jc, or in other words 
 •^ *" contain two answers to the same plea •,{fc) a reason has been 
 
 assigned that the plaintiff ought not to perplex the court with 
 two matters, to attempt to inveigle their judgment, and that if 
 two issues were permitted to be joined upon two several tra- 
 verses on the plaintiff's replication, and one should be found 
 for the phdnliff, and the oilev for the defendant, the court 
 would not know for whom to give judgment, whether for the 
 plainlifV or the defendan ;(/) and the court will not give leave 
 to reply double, under the statute 4 yi?in. c. 16.C»0 though 
 vuider that statute the plaintiff in re/tlevm may, with leave of 
 the court, plead several pleas in bar to an avowry or cogni- 
 sance. (/<) But a replication may frequently put in issue several 
 i\icts, where they amount to only one connected proposition :(o) 
 and as we have already seen, a replication may contain several 
 distinct answers to different parts of a plea divisible in its na- 
 ture ;(/0 as where infancy has been pleaded to a declaration 
 consisting of several counts, the plaintiff may reply as to part 
 of the demand, that it was for necessaries, to other part that 
 
 (/() Lutw. 2il. Com. Dig. Plead- (,') '2 Saunil. 49, 50. 
 
 er, F. 4. Ante, 5*3, 574. (m) Fortes. 335. Barnes, 63. 
 
 (0 See -2 H. Bl. IGl. 1 Saund 8. a. («) 2 B. & P. 368. 376. 
 
 Aii:e, .tI7, 518. (o) 1 Burr. 31". Ante, 577. Jc 
 
 (./) 8 T. R. 463. I B. k P. 640. 588. Rep. temp. Hardw. 289. 
 
 (V) Com. D\o;. Pleader, F. 16.— (/>) Ante, 5i9. 551. 
 Rrp. temp. Uardw. 28".
 
 THE QUALITIES OF A REPLICATION, 6cc. 625 
 
 the defendant was of full age at the time the contract was made, IV. Must be 
 and to other part that he confirmed it after he came of age.^y) 
 So if an executor or administrator plead several judgments 
 outstanding and no assets ultra, the plaintiff may reply as to 
 one of the judgments nul del record, *and to another that it '^ 626 
 
 was obtained and kept on foot by fraud. (r) In an action of 
 debt on bond, conditioned for performance of covenants, the 
 pl-.intifl may, and indeed ought, by the statute 8 and 9 H'?>i. ill. 
 c. II. s. 8, to assign as many breaches in his replication, as 
 he proceeds for.U) And to a plea of set-off, consisting of se- 
 veral demands upon judgment or recognisance, and simple 
 contract, the plaintiff in his replication should give several an- 
 swers, viz. as to the judgment or recognisance, Jiul del record^ 
 and as to the simple contract, that he was not indebted ;(/) or 
 he may reply as to a part, the statute of limitations ;{ii) and 
 duplicity in a replication is aided, unless the defendant demur 
 specially, pointing out the particular defect. (z*) 
 
 (7) Id. ibid. (m) Post, vol. 2. 605. 
 
 (r) 1 Saund. 3.37. b. 2. ILd.R.iym. (v) 27 Eliz. c. 5. 4 Ann. e. Ifi. 
 
 263. 1 Salk. 298. s. 1. 1 Saund. 337. h. n. 3. Doct. 
 
 (s) Post, vol. 2. 623. Plac. 147. 
 
 (f) 1 East, 3G9. See the prece- 
 dent, post, vol. 2. 604.
 
 627 
 
 CHAPTER IX. 
 
 OF KEJOINDERS AND THE SUBSEQUENT PLEADINGS ; ISStTES, 
 REPLEADERS, AND PLEAS PUIS DARREIN CONTINUANCE; 
 AND OF DEMURRERS AND JOINDERS IN DEMURRER. 
 
 Of rejoinders. /\ REJOINDER is the defendant's raiswer to the replica- 
 tion, («) and is governed by the same rules as those which af- 
 fect pleas ;(/;) with this additional quality, that it must support, 
 and not depart, from the plea ;(c) it must also be single, and 
 the court cannot give leave to the defendant to rejoin several 
 matters, for the statute oi Ann. docs not extend to rejoinders \{d) 
 hence it may suflice to refer to the preceding pages, and to the 
 forms which are given in the second volume. 
 
 Form and re- Whcu a replication, or a plea in bar in replevin, concludes 
 
 tjntsiten of. X 1 i 
 
 to the coiintrjj, the defendant can only demur or add the com- 
 mon shmiiter, wliich is, " And the said defendant doth the 
 " like :" and v.here there are several replications, particularly 
 when some conclude to the country, and others with a verifi- 
 cation, it may be, " And the said defendant as to the said re- 
 " plications of the said pUunliff, to the said second and third 
 <' pleas of him the saitl defendant, and vvhich the said plaintiff 
 * 628 «' *hath prayed may he inquired of by the country, doth the 
 " like. "(e) But the plaintift' is at liberty to add the si?niHlc7-y 
 it being a rule that in all special pleadings, where the plaintiff 
 takes issue upon the defendant's pleading, or traverses the 
 
 (fl) Com. Dijr. Pleader, H. 189,100. Com. Dig. Pleader, F. 6. 
 
 (6) Ante, 506 to 52o. Co. Lit. 303. to F. 11. 
 b. (rf) Sti-u. 90?. 
 
 {(■) Ante, 618 to 623. as to tlic points (e) See the forms, post, vol. 2. 658. 
 
 vclatiiig to a departure, and ti Samid. and id. note («')•
 
 OF REJOINDERS. 628 
 
 same, or demurs, so that the defendant is not at liberty to al- -^«'''« and re- 
 
 ■ . . qumtes of. 
 lege any new matter, the plaintifF may add the ■■umliter or jom- 
 
 der in dcnmrrer, and make up the paper book without giving 
 a rule to rejoin ;(/) but otherwise a rule must be i^iven, vmless 
 the defendant be bound by a judge's order to rejoin gratis, and 
 in the latter case llie plaintiff ought to add the shniliicr^ and not 
 to give a rule to rejoin ;(^) and where the plaintiff adds the 
 similiter the defendant may strike it out, and demur to the re- . 
 plication, which is the usual course when the defendant has no ■■ 
 merits and wishes to obtain time. (A) The consenuences of a 
 defect in or omission of a dmillter^ have already been consi- 
 dered, i) 
 
 When the replication concludes with a verijicationy the re- 
 joinder usually denies it, and concludes to the country, " and 
 " of this he the said defendant puts himself upon the coun- 
 " try," Sec. But when the rejoinder introduces any new mat- 
 ter, it must, as in the case of a plea or replication, conclude 
 with a verification, in order that the plaintiff may have an op- 
 portunity *of answering it.'^A:) If the defendant deny several * 629 
 matters alleged in the replication, the rejoinder may conclude 
 to the country, without putting the matters in issue severally 
 and distinctly ; thus, if to a plea of infancy the plaintiff has re- 
 plied that a part of the goods were necessary clothing, and the 
 residue necessary food, a general denial in the rejoinder, con- 
 cluding to the country, will suffice.(/) 
 
 Surrejoinders^ Rebutters, and Surrebutters, seldom occur in Stm-ejoin- 
 pleading ;(?«) 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 second volume. ("0 
 
 (/) Rule Trin. 1 Geo. II. note a. (j) Ante, 570, 571. 
 
 6 East, 586. 1 Sclwyn, Prac. c. 9. s. {k) Ante, 537, 538. 615. 1 Saund. 
 
 1. 1 H. Bl. 254. Imp. Prac. C. P. 103. n. 1. See the fonns, po&t, vol. 2. 
 
 358. C5S. 606. 
 
 ( S) 3 B. 8: P. 443. (/) Liitw. iill. Com. D!- Pleader, 
 
 (/j) Tidd's Prac. 'ith edit. 607. ' H. 
 
 Imp. Prac. C. P. 358. I Selw} n, (w) See these head.-, in Com. Di^. 
 
 Prac. 0. 9. s. 1. Pleader, I. K. L.
 
 629 OF ISSUES. 
 
 Of hsiiea. From the preceding observations on the different parts of 
 
 plcLuUng, particularly those relating to traverses, we may col- 
 lect what points niay L)e pui in is&iu ; us however the parlies re- 
 spectively may be disinclined to demur, or otherwise to object 
 to their opponent's pleading, it may be advisable to consider on 
 what issue the parlies may venture to go on to trial, so as to 
 obtain the judgment of the court, and to avoid the necessity of a 
 re/ilcadar^ on account of the issue having been upon immaterial 
 
 * 630 matter. 
 
 Sequmtes of J^■^^ ^^sue is defined to be a single, certain, and *material 
 point, issuing out of the allegations or pleadhigs of the plain- 
 tiff and defendant, (.'0 though in common acceptation it signi- 
 fies the entry of the pleadings.(o) An issue should in general 
 be upon an aj/lrmative and a negative^ and not upon two affir- 
 matives ; as if the defendant plead that ^ is living, and the 
 plaintiff reply that he is dead, it is more formal, though not 
 absolutely necessary, also to deny that he is living ;(/ij nor 
 should the issue be on two negatives :(</) thus, if the defend- 
 ant plead that he requested the plaintiff to deliver an abstract 
 of his title, but that the plaintiff did not when so requested de- 
 liver such abstract, but neglected and refused so to do ; the 
 plaintiff car.not reply that he did not neglect and refuse to de- 
 liver such abstract, but should reply either denying the request, 
 or aftirmatively that he did deliver the abstract ;(r) but it is not 
 necessary that the negative and affirmative should be in precise 
 words ;(6) and it will suffice though there be two affirmatives, 
 if the second is so contrary to tiie first that it cannot in any de- 
 gree be true ; as if duress of imprisonment be pleaded to a 
 bond, it is a good replication, that the defendant was at large at 
 
 (w) Co. Lit. 126. a. As to is- tulit hie in curia qnandam querelam 
 
 .«(/es in General, see Com. Disj. Plead- snam,'^ ami the continuances are in 
 
 er, R. Bac. .\br. Pleas, M. the preterperfect tense, as " vene- 
 
 (o) As to the form of such entry, mint" not " veniunt." 1 ]\Io<i. SI. 
 
 see Tidd's Prac. 4th eilit. 655. &c. 2 Saund. 393. n. 1. 1 Stra 60S. but 
 
 As to the language of this entrj-, it is see 1 T. R. 320. 
 
 said that the acts of a court ought to (/j) Com. Dig. Pleader, R. 3. 
 
 be in the /»resenf tense, as " prxcep- Cy) Id. ibid. 8 T. R. 280. Bae- 
 
 tnm est," not " preceptum fuit" but Abr. Pleas, I. 3. 
 
 Ihe acts of the paity may he in the (?•) 6 East, 557. 
 
 pretcrperfect tense, as " ventt et pro- (s) Co. Lit. 126.
 
 OF ISSUES. -^631 
 
 *his own disposal, and exf cutcd the bond of his own free will, Requisites of 
 anci nf!l for lear ol iniprisoiunent.(0 An issue shouid ulso be 
 upon A single and cer(ai?i point ;(,z') but it is not necebSary that 
 suth poiru should consist of a single fact, and thereiore if the 
 defeu' c;nt in trespass justify under a right ot common, and the 
 rejj'ication traverses that the cattle were the defendant's own, 
 anu levant and couchant, and commonable cattle, it is not multi- 
 farious, for all these circumst^inces are requisite to the point of 
 defence. (") Tl)e issue also should not be on a negative preg- 
 nant, (^y) but il may be upon a disjunctive. (r) 
 
 I'he principal quality of an issue is, that it must be upon a ma- 
 terial point ;(i/) an zn/onHtz/ issue is, where a ?na;ma/ allegation 
 is traversed in an im/iro/ier or inartijicial viamier ;{z) and this 
 and the other preceding mistakes are aided by verdict by the 
 3'2 Hen. c. 30.(a) but a verdict does not help an i7nmaterial is- 
 sue ;(6) which is, where a material allegation in the pleadings 
 is not traversed, but an issue is taken on some other point, 
 which though found by verdict will not determine the merits 
 of tlie cause, and would leave the court at a loss for which of 
 the parties *to give judgment ;(c) as where in debt on bond * 632 
 
 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 Avas joined, and 
 the vc-rdict found th:it he did not pay 60/. on the 20th, it was 
 held tha>. 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 p.ad on the 25th, though it was 
 not paid on the 20th, so that it did not appear that the condition 
 was broken, and it is not aided by the above-mentioned statute ;(c/) 
 
 (0 2Sti-a. 1177. 1 Wils. 6. (z) Cro. Eliz. 227. 1 Lev. 3.'. 
 
 {v) Com. Dig. Pleader, R. 4. Carth. 371. 2 Mod. 137. 
 
 \u) I BuiT. 316. («) Gilb. C. P. 147. 2 Saund. 319- 
 
 (w) See the instance of negative n. 6. 
 
 pve^naiits. Com. Dig. Pleader, R. 5, (/») Id. ibid. 2 Saund. 319. n. 6. a. 
 
 6. Rac. Abr. Pleas, I. 6. It must be (c) 2 Saund. 319. n. 6. Gilb. C. P. 
 
 objvcied to by demurrer, id. ibid. 2 147. 1 Lev. 32. See the instances, 
 
 Sauitd. 319. n. 6. Com. Di. . Pleader, R. 18. 
 
 (x) Com. Dig. Pleader, R. 7. (</) Cro. Jac. 434. Stra. 994. 2 
 
 (v) Com. Dig. Pleader, K. 8. Saund. 319. b. n. 6.
 
 632 ' OF REPLEADERS. 
 
 lieqnisitcH of SO where ill an action of usfnimjinit against an administratrix^ 
 t •cm. Qj^ promises of the intestate, she pleaded that she (insteaa of 
 
 the intestate) did not promise, after verdict a repleader was 
 awarded :(e) so where in an action of debt aguinsi a lessee for 
 years, the defendant pleaded that before the rent became due, 
 he assigned the term to a third person, of which the plaintiff 
 had notice, and issue was joined on the notice, which being al- 
 together immaterial, a repleader was awarded.(y") 
 
 Of replead- When the issue is immatciiuL the court will award a refikader 
 
 crs. 
 
 if it will be the means of efiecting substamial justice beiwccn 
 
 the parties, but not otherwise ■^{g) the following rules as to rc- 
 *' 633 pleaders, were laid down in the case of *Htaidt v. Haydon ;Ui) 
 
 ^firsty that at common law, a repleader was allowed belore uial, 
 because a verdict did not cure an immaterial issue, but now a 
 repleader ought not to be allowed till after trial, in any case 
 where the fault of the issue might be helped by the verdict, 
 or by the statute of jeofails ;(X:) secondly^ tnat if a repleader be 
 denied, where it should be granted, or vice versa it is error ; 
 thirdly.^ that the judgment of repleader is general, (juod partes 
 relilacitent^ and the parlies must begin again at the first tault 
 which occasioned the immaterial issue ;(/) thus, if the decla- 
 ration be insufficient, and the bar and replication are also bad, 
 the parties must begin de riovo, but if the bar be good, and 
 the replication ill, at the replication ^{111) fourthly <, no costs are 
 allowed on either side ;(/2) fifthly., that a repleader cannot be 
 awarded, after a default at nisi fir ius ; to which may be added, 
 that in general a repleader cannot be awarded after a demurrer 
 or writ of error, without the consent of the parlies, but only 
 after issue joined ;(o) where, however, there is a bad bar, and 
 
 (c) 2 Vent. 9B. Dig. Pleader, R. 18. 3 13. & P. 352. 
 
 (f) 1 Lev. 32. But where the point put in issue is 
 
 (^) 2 Sauiul. 319. b. n. 6. 2 Salk. altogether immaterial, and could not 
 
 .'ir'J. S Mod. 1. 2 Ld. Raym. 922. be modified by tlie verdict because 
 
 3 Salk. 121. S. C. Cowp. 489. collateral to the merits, it would be 
 
 (A) As to a repleader in general, otherwise. 
 
 Com. Dig. Pleader, R. IS. Bac. (/) 1 Ld. Raym. 169. 
 
 Abr. Pleas, M. Doct. Plac. tit. Re- (m) 3 Keb. 664. 
 
 pleader. Tidd's Prac. 4th. edit. 812. («) 2 Ventr. 190. 6 T. R. 131. 
 
 See the forms there referred to, and Barnes, 125. 2 B. & P. 376. 
 
 2 Saund. 20. (o) 3 Salk. 306. 
 
 {k) Bac. Abr. Pleas, M. Coni,.
 
 OF PLEAS PUIS DARREIN CONTINUANCE. C33 
 
 a bad replication, it is said that a repleader m?iy be awarded Wheri Pieces- 
 upon a demurrer ;(/;) a repleader *also will not be aw?.rded, *" ^^jc-^qa 
 where the court can give judgment on the whole record,(7) 
 and it is not grantable in favour of the person who made the 
 first faultiin pleading. rr) 
 
 The distinction between a repleader and a judgment non 06- 
 atante 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 ground of defence by which it is apparent to the court} 
 upon the defendant's own shewing, 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 sake of the plaintiff, will at once 
 give judgment non obstante -veredicto ; 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 know not 
 for whom to give judgment, whether for the plaintiff or de- 
 fendant, there for their own sake 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 re- 
 pleader is upon the form anc' "aanner of pleading. (s) 
 
 When matter of defence has arisen after the commence- Of pleas puis 
 
 p . • • 1 1 1 1 • . P . darrein con- 
 
 ment ol the suit, it cannot be pleaded *in bar of the action tinuunce.{'^) 
 generally •, but must, when it has arisen before plea or con- *■ 63d 
 tinuance, be pleaded as to the furt/ier maintenance of the suit ;(;) 
 and when it has arisen after issue joined, puis darrein conti- 
 nuance. The instances of a defendant having obtained his cer- 
 
 (/)) Semb. Cro. Eliz, 518. 1 (f) 4 East, 507. Ante, 531,532. 
 
 Andr.lCZ. sed quaere. Lutw. U< 8. Cora. Dig. Abatement, 
 
 (7) Willes, 532, 533. I. 24. 
 
 (r) 1 Ld. Raym. 170. Doug. 39C. (f ) A3 to these pleas in general, 
 
 747. Tidd's Prac. 4th edit. 813. sed see Rac. Abr. Pleas, Q. Com. Dig. 
 
 qn<Ere. Abatement, I. 24. 34. Doct. Plac. 
 
 (.f) Tidd's Prac. 4th edit. 813, 814. 297. Bull. N. P. 309. And see the 
 
 Bac. Abr. Pleas, ISt. Com. Dig. precedent, post, vol. 2. 676, 677. 
 Pleader, R. 18. 
 
 Vol. I. [ 58 ]
 
 (iS5 OF PLEAS PUIS DARREIN CONTINUANCE. 
 
 JVhen neces- tificatc as a bankrupt pending; the suit, and before plea,(u) and 
 • ' ot an executor pleuchntj judj^ments obtained aganist him alter 
 the issuing of the writ, are exceptions. (x^) 
 
 If any matter of defence has arisen after an issue in fact, or 
 a joinder in demurrer,(w) it may be pleaded by the defendant ; 
 as that the phuntiff has given him a release ; or has been out- 
 lawed or excommunicated iix) or that there has been an award 
 made on a reference after issue joined ;(;/) and it may be ad- 
 visable so to plead the defendant's bankruptcy, when he has 
 obtained his certificate, after issue joined ;(z) and where the 
 plaintiff has become bankrupt after issue joined, and the as- 
 signees dissent to liis proceeding in the suit, it may be advisa- 
 ble to plead it.(«) So it may be pleaded in abatement that a 
 
 * 636 /erne plaintiff has married *since the last continuance ;(<!') or in 
 an action by an administrator that the plaintifl's letters of ad- 
 niinistration have been revoked ;(c) so a defendant sued as 
 executor de son tort, may plead that he has obtained letters of 
 administration, so as to support a previous plea of retainer in 
 the character of cxecutor.((/) Pleas of this kind are either in 
 abatement or in bar ;(r) and if any thing happen pending the 
 sviit, which would in ellect abate it, this may be pleaded putt 
 darrein continuance, though there has been a plea in bar ; be- 
 cause the latter plea only waives ail matters in abatement, which 
 existed at the time of pleading, imd not matter which arose 
 afterwards; but if matter in abatement be pleaded fiuis dar' 
 rein conti7iuancc, the judgment, if against the defendant, will 
 be pereniptory, as well on demurrer as on trial.(/) A pica 
 
 («) 9 East, 82. to plead specially puis darrein con-. 
 
 {v) 4 East, 507, 508. 9 East, 84. tinuance. 
 
 (vtf) Hob. 81. Com. Dig. Abate- («) 7 East, 53. Titld's Prac. 4tk 
 
 meat, 1. '24. ace. Ld. Kaym. 266. edit. 761. 
 
 Stfii. 493. coiitr. See (Join. Dig. (6) Bro. Abr. lit. Continuance, p!. 
 
 Abatement, I. 24. 57. Bull. N. P. 310. 
 
 (.r) Bull. X. P. 309. See the (c) Bull. N. P. 309. Com. Dig. 
 
 foi-m, \»ost, vol. 2. 6r7. Abatement, I. 24. 
 
 0/) 2 Es[). Rop. 504. (^/) 2Stra. 1106. 1 Saund. 265. 
 
 (s) III 9 East, 82. the doctrine in n. 2. 
 
 4 East, 41S. and 2 Smith's Uep. 659. (e) Com. Dig. Abatement, I. 24. 
 
 appears to have been qualified ; but ( /') (iilb. C. P. I<15. Alleyn, 6S. 
 
 still if a certificate has been I'btaii^ed Freem. 252. 2 Stra. 1105, 1106. 
 after issue ji-ined, it may be advi^»ble
 
 OF PLEAS PUIS DARREIN CONTINUANCE. 636 
 
 iiui& darrein contiiiuance is not a departure from, but is u waiver When neces- 
 of, the first plea, and no advantage can afterwards be taken of *"''^' '^'* 
 
 With respect to the tiTnc when the matter of this descrip- Time and 
 tion is to be pleaded, it appears that if the ground of defence j","'. ']^l[ ^" 
 arose after plea, or after issue joined, and before the return of 
 the venire facias, it should be pleaded in bank ;{h) and where 
 the defendant after pleading, obtained his *certificate as a bank- *• 637 
 
 rupt, and then pleaded it in bank, as a matter which had arisen 
 after the last continuance, but in fact another continuance had 
 intervened between the certificate and plea, the court per- 
 mitted him to plead it nutic /iro tunc on payment of costs \ii) 
 but matters which have arisen after the trial, and before the 
 day in bank cannot be so pleaded ; and though it may after the 
 jury have gone from the bar, yet it cannot after they have 
 given their verdict. (y) 
 
 Great certainty is requisite in pleas of this description ;(it) 
 and it is not sufficient to say generally that after the last con- 
 tinuance such a thing happened, but theday of the continuance 
 must be shewn, and also the time and place must be alleged 
 where the matter of defence arose. (/) The foi'ms of the plea, 
 whether pleaded in bank or at the assises, are given in the 
 second volume. (7?0 The plea, when it contains matter in 
 abatement, concludes by praying judgment of the writ, and 
 that the same may be quashed ;(n) or if the writ is abated de 
 factoy by praying judgment if the court will further proceed. (o) 
 In bar the conclusion of the plea is that the plaintiff ought not 
 further to maintain his action, and not that the former inquest 
 bhould not be taken, because it is a substantive bar of itself, in 
 
 {g) I Salk. 17S. 2 Sti'u. 1105. Cro. Juc 261. Freem. 112. 2Lul^v■. 
 
 Hob. 81. 1143. 2 Salk. 519. 2 \Vi!s. I;i9. Co. 
 
 (h) See Com. Dig. Ab.itement, I. Ent. 517. b. liasL Eiit. 549. 
 
 2i. 2 Smith's Hep. .396. See the (/) Id. ibid. Bull. N. P. 309. 
 
 (brm, post, vol. 2. 676. {m) Post, vol. 2. 676, 677. and see 
 
 (0 2 Smith's Kep. 396. Bull. N. P. 310. Co. Ent. 517. Kast. 
 
 ( /) Docl. Plac. 177. Bull. N. P. Ent. 549. 
 
 310. 9 East, 321. Com. Dig. Abate- (?;) Ci!b. C. P. 105. 2I.atw. 1143, 
 
 ment, 1.34. (&) 3 l.cv. 120. Biiil. N. 1*. 311. 
 
 (k) Doc. Plac. 297. Yelv. Ul.—
 
 638* OF DEMURRERS. 
 
 Time and lieu of the *former, and consequenlly must be pleaded to the 
 
 mode of plead' . • /- . x 
 ing them. actlon.(//) 
 
 Pleas after the last continuance must be verified on oath be- 
 fore they are allowed, whether pleaded in bank, or at nisi 
 firitts ;('/) and they cannot be amended after the assises are 
 over ;(r) nor can there be more than one plea fiuis darrein con- 
 ti7iuance.{.s) But if a plea fiuis darrein continuance be filed and 
 verified on oaih, the court cannot set it aside on motion, but 
 are boiuid to receive it.(0 When a plea fiuis darrein continu- 
 ance is put in at the assises, the plaintifi is not to reply to it 
 there, for the judge has no power to accept of a replication, 
 nor to try it ; but ought to return the plea as parcel of the re- 
 cord of nisi prills ; and if the plaimiff' demur, it cannot be 
 argued t]ierc.(T') Where the plea /mis darrein continuance is 
 certified on the back of the /lostea, and the plaintitT demui-s, 
 if the dclendant, on the expiration of a rule given for him to 
 join in demurrer, neglect to do so, the plaintiff may sign judg- 
 mcnt.(w) 
 
 OF DEJ)lUIiKE/iS.(a) 
 
 Of Tiemur- When the declaration, plea, or replication, kc. is defective, 
 *T/, ''"''^^'^ either in substance or form, the *opposite party may in gene- 
 ^ 639 ^^' demur, which has Ijcen defined, that the parly demur- 
 ring will go no furth.er, because the oilier has not shewn suf- 
 ficient matter against him. (6) Where the pleading is defec- 
 tive in substance, it is in general advisable to demur, because 
 the party succeeding tiieveon, is entitled to costs ; but where 
 
 (/)) Cro. Eliz. 49. 2 Lutw. 1143. (0 2 Wils. 157. 3 T. K. 554. 
 Bull. N. P. 310. (f) Com. Dig. Abatement, I. 24. 
 
 (9) Froein. 252. 1 Stra. 493. 2 (?<) Bac. Abr. Pleas, Q. Bull. X, 
 
 Snulh's Rep. 396. P. 311. 
 
 (r) Bac. Abr. Pleas, Q. Yelv. 181. (a) As to Demurrers in general. 
 
 Preera. 252. Bull. N. P. 309. But see Bac. Abr. tit. Pleas, N. Com. 
 
 aee 2 Smith's Rep. 659. Dig. Pleader, Q. Saund. Rep. Iti- 
 
 (s) Bro. Abr. tit. Continuance, pi. dex to notes, tit. Demurrers. 
 5, 41, Jeuk. 160. Gilb. C. P. 105. (6) 5 Mod. 232. Co. Lit. 71. h.
 
 OF DEMURRERS. 639 
 
 the judgment is arrested,(c) or reversed on a writ of error,(f/) When proper. 
 
 no costs are recoverable. When the objection is a defect in 
 
 matter of form, a special demurrer is siill permitted ; for, as 
 
 obsei'ved by Lord Hooart, " the statute of Elizabeth requning 
 
 " a special demurrer, does not utterly reject form, for that 
 
 " would be destructive of the law, as a science, but it only re- 
 
 <' quires that the defect in form be discovered, and not Ubcd as 
 
 *' a secret snare to entrap ;"{,e) and it was obseived by Eijrcy 
 
 Chief Justice, that " infinite mischief has been produced by 
 
 " the facility of the courts in overlooking^ errors in form : it 
 
 " encourages carelessness, and places ignorance too m.uch 
 
 " upon a footing with knowledge amongst those v.ho practise 
 
 " the drawing of pleadings. "(y) Where, however, there are 
 
 merits to be tried, it is in practice more liberal not to demur 
 
 for a mere mistake in form. 
 
 Demurrers are either general or special ; general when no IHien geiic- 
 particular cause is alleged ; afiecial when the particular imper- ''^ " speau . 
 fection is pointed out, and insisted upon, as the ground of de- 
 iTiurrer ; the former will suffice when the pleading is defective 
 in sub&tafice, and the latter is requisite where the objection is 
 only to the /or ?n of pleading.(^) *At common lav/ a special ^ g4Q 
 
 demurrer was not necessaiy, except in the case of duplicity, 
 and the party was at liberty on a general demurrer to take ad- 
 vantage of any objection, however trifling ;(A) to remedy which, 
 the 27 £liz. c. 5. after reciting " that excessive charges and 
 " expenses, and great delay and hindrance of justice hath 
 *' grown in actions and suits between the subjects of this realm 
 " by reason that upon some small mistaking, or want of form 
 " in pleading, judgments are often reversed by writs of error, 
 " and oftentimes upon demurrers in law given otlierwise than 
 " the matter in law, and the very right of the cause doth re- 
 " quire, whereby the parties are constrained either utterly to 
 " lose their right, or else after long time and great trouble 
 " and expenses, to renew again their suits," etiacted, " that 
 " from thenceforth, after demurrer joined and entered in any 
 
 (c) Cowp. 407. (g) Bac. Abr. lit. Picas, N. 5. Co. 
 
 (d) I Stra. 617. Lit. 72. a. 
 
 (e) Hob. 232. 1 Sauad. 537. n. 5. (//) .I Salk. 122. 
 (/)1B.&P. 59.
 
 640 OF DEMURRERS. 
 
 »7/^w, g-en,?- « action or suit in any court of record within this realm, the 
 "judges shall proceed and give judgment according as the 
 " very right of the cause and matter in law shall appear unto 
 " them, without regarding any mfierfcciions defect, or ivant o/' 
 *^/brm, in miij writ, return, /iluint, declaration, or other Jileudivg, 
 *' process or course of proceeding whatsoever, except those 
 " only whiclj the party demurring shall specially and particu- 
 " larly 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 sucli only as is before excepted." 
 * 641 The chief difficulty that arose in the construction *of this 
 
 statute, was the distinguishing between what was matter of 
 form, and matter of substance, and many defects which arc 
 now deemed mere form, were held not to be aided by this sta- 
 tute, such as the omission of the words vi et armis, contra 
 pacern, 8cc.(z') To remedy this, the 4 Jnn. c. 16. directs, " that 
 *' where any dcnuurer shall be joined and entered in any ac- 
 *' tion or suit in any court of record within this realm, the 
 *' judges shall proceed and give judgment according as the very 
 *' right of the cause and matter in law shall appear unto them, 
 " without regarding any imjierfection, ojnissioJi or defect, in any 
 *' writ, return, plaint, declaration or other fdrading, process or 
 *' course of proceedings whatsoever, cxccfit those only which the 
 *' Jiarty demurring shall s/ucially and particularly set down and 
 *' express, together with his demurrer, as causes of the sume^ 
 " notwithstanding that such imperfection, omission, or defect 
 " might have heretofore been taken to be 7natter of substance 
 " and not aided by above-mentioned statute, so as sufficient mat- 
 *' ter appear in the said pleadings, upon which the court may 
 " give judgment according to the very right of the cause ;" 
 and it goes on to provide, " 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 
 
 (/) Com. Diij. Pleader, 3 M. 7. Bac. Abr. Pleas, N. 6. 1 Saand. SK n, 
 
 1. Hob. '2SH. Sav. SS,
 
 OF DEMURRERS. *642 
 
 »' *in the declaration or oiher pleadings, or of or for the default TVhm gene- 
 
 , nil or tfiecioX, 
 
 « of alleging of the bringing into court letlers testamentaiy, 
 
 « or letters of administration, or of or for the omission of vi 
 
 « £5* armist et co7itra fiacc?n, or either of them, or of or for the 
 
 « want of averment o^ hoc fiaratua est verijicare^ or hoc fiaratua 
 
 " est verijicare per recordum ; or of or for not alleging /^rozi? 
 
 ^^ patet per recordum; but the court shall give judgment 
 
 " according to the very right of the cause as aforesaid, with- 
 
 " out regarding any such imperfections, omissions, and de- 
 
 " fects, or any other matter of like nalure,{j) except the same 
 
 « shall be specially and particularly set down and shewn for 
 
 " cause of de7nurrer." It was provided by the seventh section, 
 
 that the act should not extend to proceedings upon any petial 
 
 statute ; but this was altered by the 4 Geo. II. c. 26. s. 4.(A-) 
 
 Since these statutes, the party on a gcJieral demurrer can 
 only take advantage of defects in sub.^tance ; and therefore, if 
 the defect objected to be not clearly of that nature, it is safest 
 to demur specially, iii which case the party may not only take 
 advantage of those particularly pointed out, but also of any 
 substantial defect, though not specified.(/) But where the de- 
 fendant is under terms of pleading issuably, no formal defect 
 can be assigned as cause of demurrer, either to the whole oi* 
 a part of the declaration or replication, and if it be, the plain- 
 tiff *may sign judgment ;(ot) but the defendant may demur ^ /i^o 
 where there is a substantial defect affecting the merits of the 
 tase.(/z) 
 
 A demurrer is either to the ivhole or a part of a declaration ; Where only 
 
 and if there be several counts, or in covenant several breaches, I;? * J"""A,°^ 
 
 ' ' the pleading 
 
 some of which are sufficient and the others not, the defendant 
 should only demur to the latter, for if he were to demur to the 
 whole declaration, the court would give judgment against 
 him ;(o) and this rule equally applies to one count, part of 
 which is sufficient and the residue is not, ^yhen the matters arc 
 
 ( /) See observations as to extent Ante, 506. Tiild's Prac. Cvl cdii.; 
 
 «f tiiese woi-Hs, 2 H. Bl. 262. 429. 4tli c.lit. 419, 420. 
 
 (i) Willcs, 601. Tidd's Pi-ac. 4th («) Id. il.id. Stra. 1185. 
 
 edit. 822. \o) Com. Dig Pleader, Q. 3. 5. i 
 
 (/) I Saund. .337. b. n. 3. Tidd's Saund. 2S6. k id. note 9. 2Saund. 
 
 IPrac. 4th edit. 641. S79, 380. ii. 14. 1 WitS. ^tS. 1 Nrw 
 
 (w) 7 T. R. 53f«. 1 E.lst, 411. Rep. -fs.
 
 643 
 
 OF DEMURRERS. 
 
 * 644 
 
 Wlieu may 
 denmrthi) 
 
 TT'/icre only lo divisible in their nature ; if a plaintift' declare fortakine: his mo- 
 
 a part of the ^ ^ ° 
 
 pieaihng. iicy and also certain goods, without shewing tliat the goods were 
 Iiis property, the count will be good as to the money, and it" the 
 defendant demur generally to the whole, the plahiiiflf will have 
 judgment ;(/0 but where there is a misjoinder either of parties or 
 causes of action, the demurrer should be to the whole.(<7) And 
 if a plca^ avowry or refdication, each of which we have seen is 
 entire, be bad in part, it is bad for the whole ;(r) and in that 
 case the demurrer should be to the whole plea or replication, (s) 
 or it will be a discontiimance ;(;) except in the case of a plea 
 of set-ofi', two parts of which are *considered as similar to two 
 counts in a declaration, and if one part be good, a general de- 
 murrer to the whole will be bad.(H) 
 
 In general a party cannot demur, unless the objection appear 
 the ohjection on the face of the jirc ceding pleadings ;{v) but in some cases, 
 pear on the ^^here the plaindft' in his declaration partially states a deed 
 
 face of the ^vhich is defective, or contains matter disqualifying the part 
 pleadings. i .; o tr 
 
 Stated, the defendant may crave oyer of the deed and set forth 
 the whole, thereby making it part of the declaration, and then 
 demur either in respect of the defect in the deed, or the im- 
 proper manner in which the plaintiff has stated it, and this is 
 the proper course, when upon oyer it would appear that a bail- 
 bond is defective. (to) So a deed untruly stated in a plea, be- 
 ing set out upon oyer by the plaintiff, becomes part of the 
 plea, and if it thereby appear that the plea is false, the plaintiff 
 need not shew any matter of fact in his replication to maintain 
 his action, but may demur ;(.r) for it is a general rule that an 
 indenture set out upon oyer becomes part of the preceding 
 
 (/>) 2 Saund. 379. 1 Salk. 218. 2 
 Saund. 171. a. n. 1. 1 Mod. 271. See 
 tlie form, 1 Saund. lOS, 109. 
 
 {q) 4 T. R. 547. Ante, 206. 2 
 Saund. 210 & 210. a. 
 
 (7-) Ante, 523, 5 24. 618. 1 Saund. 
 28. and id. n. 2. 28G. 337. n. 7. 2 
 Saund. 124. 1 Salk. 312. I T. U. 40. 
 .'} T. R. 374. 
 
 (s) See an exception in an avowry, 
 I Saund. 286. 
 
 (0 Cora. Dig. Pleader, Q. 3. 
 
 (?0 2 Bl. Rep. 910. 
 
 (r) See tlie forms and notes, 2 
 Saund. 364 to 3G7. Com. Dig. Plead- 
 er, 3. And see an exception in a de- 
 claration against a prisoner, ante, 281. 
 2S8. 1 Wils. 119. 
 
 (w) 2 Saund. 60. in notis. See the 
 exceptions, and when the facts must 
 be pleaded, ante, 479, 480. and 1 
 Saund. 295. b. 
 
 (,t) 1 Si-auid. 316, 317. 
 
 (w) 1 Suund. 317.
 
 OF DEMURRERS. 644 
 
 In point o? form no precise words are necessary in a demur- Forms of de- 
 rer, and a plea which is in substance a demurrer, thoui^h very '""''"''■ 
 informal, will be considered as such ;(z) and it is a general rule 
 *that there cannot be a demurrer to a dernurrer.(n) The usual ^- /?^r 
 
 form of a general demurrer to a declaration^ after statini^ the 
 title of the court and term, and the names of the parties in the 
 mar^^in, and the defence as in the commencement of a pleci,(6) 
 alleges that the declaration and the matters therein contained 
 and as therein stated, are not suflicient 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 ;(c) or if the demurrer be to a particular count 
 or breach, it is qualified accordingly.(f/) A general demurrer 
 to a filea i7i 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. (f) To a pAca in bar^ 
 the demurrer is quia placitum^ is^c. materiaque in eodem con- 
 tenta mijius sufficiens in lege existet, iSfc. unde firo dcfectu nuffi- 
 cientis Jilaciti^ isfc fieiit judicium^ cfc. eitlier for damages, or 
 for debt and damages, &^c. according to the nature of the ac- 
 tion. (/) If the demurrer be to a replication^ rejoinder^ Sec. 
 after stating that the same and the matters therein contained 
 are not sufficient in law, it concludes with a prayer of judg- 
 ment either ..igainst or for the plaintiff, according to the situa- 
 tion of the party demurring. (5-) If the demurrer be special, 
 the assignment of the causes of demurrer, are usually intro- 
 duced at the end of the general demurrer in *lhe following ^ %'i& 
 
 words. " And the said , according to the form of the 
 
 " statute in such case made and provided, (A) states and shews 
 " to the court here the following causes of demurrer to the 
 " said declaration," (or " to the ^zXA first count of the said de- 
 
 (:) 5 INIod. 131. 3 Lev. 222. 2 (c) Co. Lit. 71. h. 1 Lt-oti. 24. 
 
 Sauml. 129. ii. 6. Plow.l. 400. As to Post, vol. 2. 6r8. 
 the form in general. Com. Uig. Plead- (rf) Post, vol 2. 678. 
 
 cr, Q. 3. (e) Post, vol. 2. 67'J. 
 
 (a) Bac. Abr. Pleas, N. 2. Salk. (/) Co. Lit. 71. b. Post, vol. 2. 
 
 21 'J. C79, 680. 
 
 {b) .\s ante, ."527, .528, 529. anil see ( §■) Post, vol. 2. 681. 
 
 the form post, vol. 2. 078. (/i) 4 Ann. c. 16. 
 
 Vol. I. [ 59 ]
 
 G4G 0¥ DEMURRERS. 
 
 Forins of de- " claratioii," or " to the said breach of covenant first above as- 
 muiTer. ^^ sig„gj^'» q,. a to the said plea" Scc.)(/) and it is usual after 
 
 statin?^ the causes of demurrer to conclude, " and also for that 
 " the said declaration," (or " first count," or " plea," or " re- 
 " pliccition,") is in other respects " uncertain, informal, and 
 " insufficient i" but these labled words are wholly unavailable, 
 for when it is necessary lo demur -s/u'ciany, it is not sufficient 
 thai the demurrer be c/uia card forma^ b\it it must be shewn 
 specially in what point in panic iilar the form is defective, and 
 as it has been said the statutes oblige tlie party demurring to 
 lay his finger upon the very point ;{}) and, therefore, a de- 
 murrer for duplicity quia dufilex est et caret fonna^ is not suffi- 
 cient, and it should shew in what the duplicity consists \{k) 
 and after the passing of the statute of FAizabeth, a rule was 
 made, that " upon demurrers, the causes shiill be specially 
 " assigned and not involved with general unapplied expressions 
 *' of ' double,* ' negative pregnant,' ' uncertain,' ' wanting 
 " ' form,' and the like ; but shall shew specially wherein» 
 " in order that the other party may as the cause shall require, 
 -)H-. 647 " either join in demurrer *or amend, or discontinue his ac- 
 " tion."(0 If the plaintiff" demur to a pica in abatement as 
 if it had been a plea in bar, it will be a discontinuance ;(to) and 
 a demurrer to such plea should conclude with praying judg- 
 ment that the writ or bill may be adjudged good, and that the 
 defendant may answer further or over thereto. (?z) 
 When the A party should not demur unless he be certain that his own 
 ^ud"meiit°'a^ previous pleading is substantially correct, for it is an eslablish- 
 grainst the q^\ j-qjc that upon the arirument of a demurrer, the court will, 
 
 first riLflctive . . - n • , , • 
 
 pleading. notwithstandmg the detect of the pleadmg demurred to, give 
 
 judgment against the party, whose pleading was first defec- 
 tive in substaJice ; as if the plea which is demurred to be bad, 
 the defendant may avail himself of a substantial defect in the 
 
 (0 Post, vol. 2. G-8, erg. 681. (/) Rule, Mich. Term, A. D. 
 
 (/) Com. Di.^. PlcRcler, Q. 9. 1654, s. 17. Willes, 220. 
 
 Hob. 232. Per Holt, C. .T. 1 Salk. (?m) I Salk. 218. Ante, 456. 
 
 219. I Saund. 160. 11. 1. 337. n. 3. («) 2 Saund. 210. g. n. g. Ante; 
 (A?) 1 Wils. 219.1 Salk. 219. 1 456.' 
 
 Saund. 160. u. 1. 337. n. 3. Willes, 
 
 220. Doct. Plac. 147.
 
 JOINDER IN DEMURRER. 647 
 
 declaration. (o) But this rule does not apply where the ob- Forms oj de- 
 jection to the preceding pleading is merely a detect in form^ 
 and such as would be aided on a genera demurrer, by the 
 statute of Elizabeth or Anne., or at common law ; and by plead- 
 ing over many defects in form are aided ;(/;) and we have seen 
 that upon a demurrer to a plea in abatement, no objection can 
 be taken to the form of the declaration .(y) 
 
 If the plaintiff or the defendant join in demurrer^ the Joinder in de- 
 joinder concisely contradicts the demurrer, by stating that the 
 declaration (or the plea, 8cc.) and the matters therein contain- 
 ed, *in manner and form as stated, are sufficient in law to bar ^ 648 
 the action, if the demurrer be to a declaration, 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 
 offers to verify the declaration or plea, and concludes with a 
 prayer of judgment, though the latter seems unnecessary. (r) 
 A joinder in demurrer to a replication to a plea in abatement, 
 should not conclude with praying judgment for debt and dama- 
 ges, for to conclude in chief in such case would be a discon- 
 tinuance, and the plaintiff should pray judgment that the de- 
 fendant may answer over ;(s) but if the defendant has demur- 
 red to a declaration, and concluded his denmrrer as in abate- 
 ment, the plaintiff may join in bar and shall have judgment 
 accordingly. (^) The points relating to amendments, and the 
 general rules as to when defects in pleading are aided, have 
 already been partially considered, and are so fully treated of 
 in the books of practice that any further observations upon 
 them in this treatise are unnecessary. 
 
 (o) 1 Saund. 119. n. 7. 1 Saund. ( 9 ) Ante, 457. Lutw. 592. 1667. 
 
 285. n. 5. Hob. 5G. Willes, 476. 2 1604. 
 
 Wils. 150. (?) Co. Lit. 71. b. 2 Wils. 74. 
 
 (/>) 1 Lord Raym. 369, .'^70. 3 See the forms post, vol. 2. 682, 68v^ 
 
 Wils. 297. Wille,^, 476. 5 Burr. (s) 2 Saund. 210. g. 
 
 2588. Cro. Eliz. 825. Cem. Dig. {t) 3 Lev. 223. 
 Pleader, E. 37.
 
 INDEX. 
 
 A 
 
 BATEMENT. 
 
 in re-j; eci of the parties to a suit, (see title Parties.) 
 
 by non-joind'T or misjoinder, how to be objected to, 
 of a plaintiff, in an action on a contract, 7, 8, 9. 442. 
 in an action for a tort, 51 to 54. 442. 
 in an action by executors or administrators, 13. 
 of a (/f/ena'an?, in an acticn on a contrnct, 29 442- 
 in an action for a tort, 73 to 77. 442. 
 by death, 
 
 of one of several plaintiffs or defendants pending- tlie suit, 55. 
 
 death of one don't abate suit if cause of action sunive, 55. 436- 
 in actions in form ex contractu. 
 
 surviving- oblig-ees, Sec to sue, 11. 
 death of husband or wife, plaintiff, 20, 21. 
 surviving oblig-or, 8cc. to be sued, 37- 
 death of husband or wife, defendant, 43, 4. 
 in actions in form ex delicto, 
 survivor to sue, 55. 
 
 death of husband or wife, plaintiff, 64. 
 deatli of husband or wife, defendant, 82. 
 of a sole plaintifi pending the action, 436. 
 
 ABATEMENT, PLEAS IN, (As to pleas to jurisdiction, see title Jurisdiction.) 
 general nature of, and diilerence between them and pleas in bai, 434, 5. 
 what matter may be pleaded in abatement or in bar, ibid, 
 division of. 
 
 Relating to the person, 435 to 438. 
 of the plaintiff, 435. 
 
 no such person In existence, 435. 
 death of, (see title Death and Abatement,) Ao5, 6. 
 alien enemy, 436. 
 attainted of treason or felony, 436. 
 outlawed, 436. 635- 
 under a premunire, 436. 
 excommunicated, 436. 635. 
 an infant suing by attorney, 436. 
 coverture, (see the title Coverture,') 436, 7. 
 of the defendant. 
 
 coverture, (see title Coverture,) 437. 
 reiilications, 438. 
 infancy, (see title Infancy,) 438. 
 Relating to the coi/nf. 
 
 variance between writ and count no longer pleadable, 438. 
 Relating to the -writ cr bill. 
 
 •why so called and their effect, 439- 
 Vol. I. [ 60 :i
 
 659 INDEX. 
 
 ABATEMENT, PLEAS lN—(conti,wed) 
 
 Relaung U> th- r^rit m- MtI~[co7itinued) 
 
 to the form of the wi it, 439 to 443. 
 
 varianre or detect in writ not now pleadable, 439, 440. 
 malteTs pleadable, only those extrinsic or (/e/io;i', 439, 440. 
 mistake in addition when not pleadable, 440. 
 misnomer, (see title Mitsnotner.) 
 of the pluintiti, 440. 
 of the defendant, 440, 1. 
 nonjoinder or misjoinder, when and how to be taken advan- 
 plaintifis not married, 441. L^age of, 442. 
 
 one of plaintiH's fictitious or dead, 441. 
 another joint contractor, not sued, 441. 
 anotlier executor or admiaisti-ator not sued, 441. 
 anollier person who sliould be made defendant, 441,2. 
 requisites of such pleas, 442. 
 to the action of the writ. 
 
 action misconceived as to form, 442 
 action prematurely brougiu, 442. 
 anotiier action depending fur same cause, 443. 
 replication to it, 443. 
 Qualities of, &c. 
 
 may be to the ivholt; or part of the declaration, 443- 
 
 may dt-mur to part, and plead in bar or abatement to other part, 443. 
 one defendant may plead in abatement, ar.other in bar, 543. 447. 
 in case of misjoinder, &c.it is now more usual to demur, 444. 
 wlu-n the ])lea should only be to a part of the declaration, 444. 
 prayer of the plea, 444. 
 cerlainty and accuracy required in framing pleas in abatement, 444, 5. 
 must g'ive the plaintif}' a better writ or bill, 445. 
 
 this is the criterion to distinguish it from a plea in bar, 445. 
 general requisites and form ot, 444 to 447. 
 venue not necessarj-, 446. 
 duplicity, what objectionable, 446, 7. 
 
 cannot plead two outlawries, &c. 447. 
 
 cannot plead in abatement ^nd bar to the same matter, 447. 
 Form of, 
 
 title of the plea, 447. 
 
 when may be with a special imparlance, 442, 3. 448. 
 of what term, 447, 8. 
 consequences of mistake, 448. 
 
 plaintiff may sign judgment, ib. 
 apply to court to set it aside, 448. 
 demur, ib. 
 state the estoppel, ib. 
 aided, if replied to, ib. 
 cemmencement of the plea, 
 
 accuracy required in statement of, 445. 
 defendant's appearance, 448. 
 •when it must be in person, 448, 9, 
 ■when it may be by attorney, 449. 
 •when by guardian, 449. 
 
 the defence, whether full or half, 449, 450. 
 prayer of judgment at the beginning, when proper, 450, 1, 2. 
 when of writ or bill and declaration, ib. 
 consequence of wr'-ng commencement, 446. 
 body of the plea, 
 
 accuracy and certainty requisite, (see Sltiolities supra,) 444, S. 
 venue not necessary, 446 
 
 plea of nonjoinder must aver the life of the party, 442'. 
 conclusion of the plea, 
 
 very material and great accuracy requisite, 445. 452",
 
 INDEX. 651 
 
 ABATEMENT, PLEAS liJ-(conthnied) 
 Conclusion of Ihc jilea — {continued) 
 
 consequence of a plea cnntuinlng matter in bar concluding in abate- 
 ment, 446. 
 of a plea concluding' in bav, 446. 
 of a plea of privilcg'e of person, 450. 
 of a plea to tiie disability of the person, 450. 
 of a pleo of coverture, 450. 
 
 of a ])lea of excommunicati.-m, or otiier temporar3' disabiUty,450ii'' 
 of a plea to the writ and declaration, 451, 2. 
 of a j)lea to tlie bill and declaration, 451. 
 Affidavit OF truth, (see title y^^f/«"c/f.) 
 when requisite at common law, 452. 
 whtn required by statute, 4 Ann- c. 16. s. 11. 452. 
 operation and extent of this statute, 452. 
 who to be made by, 453. 
 at what time it may be made, ib. 
 form and requisites of it, ib. 
 consequence of omi.ssion, ib. 
 Replications, &c. to, (see title Replication.) 
 to particular pleas, (see title Kepitcution.) 
 to a plea of misnomer, 454. 
 may amend, 454. 
 
 or enter a cassetur billa or breve, 454. 
 to a plea of nonjoinder if true must proceed de novo, ib. 
 must enter cassetur before commencement of fresh action, 454. 44i5. 
 when the plaintiff should reply, 454. 
 when the plaintiff should demur, 454. 
 when lie may sign judgment? &c. 454. 448. 
 when reply, ajipearance as estoppel, 454. 
 form and requisites of. 
 
 commencement and conclusion of,454 
 prayer of judgment, 455. 
 Issue, verdict, and judgment on, 455. 446. 
 Demurrers, in case of, (see title Demurrer.) 
 to a plea of replication, 456, 7. 
 form of demurrer to plea, 456, 7. 
 Joinder in demurrer, form of, 456. 
 • Argument of, no objectif)n on, to declaration, 457. 
 Judgment on, 457, 8. 446. 
 Co.sts, &.C. 457. 
 Pleas of puis darrein continuance, (see that title,) 636; 
 
 ABSOLUTE RIGHTS. 
 
 when not necessary to be stated in pler.dlng, 564. 
 
 \BSQUE HOC (see title Traverse.) 
 language of a traverse, 596. 
 
 ABUTTALS. 
 
 statement of, in a declaration, 36,3, 4. 
 new assignment, 566. 
 \CCORD AND SATISFACTION, 
 plea of, 
 
 may be given in evidence in assumpsit under general issue, 472. 
 must be pleade<l in an action on a specially, 4bG. 
 when no pica in an action on a S])eciaUy, 48U, 1 
 
 may be given in evidence under not guilty in actions on the case,' 496. 
 nuist be" pleaded in trespass, 496. 486. ^486 
 
 replications to in general, 5SU. 592. 
 in asssumpsit, 553. 
 in case, 560. 
 iTi trespass, 569.
 
 <>"^2 INDEX. 
 
 ACCOUNT. 
 
 pleas in, 48G. 
 
 ACCOUNT STATED, 
 count in assumpsit, 
 
 form of it, 336. 
 
 use of it, 343. 
 
 by or against executors, &c. 343. 
 
 ACTIO ACCREVIT, &c. 
 
 when this allegation is unnecessary in debt, 545, 6. 
 
 in debt on penal statute, 35y, 
 
 ACTIO NON, &c. 
 
 actio non habere debet when proper, 531. 
 
 when oncrari non, Sec. proi)er, ib. 
 
 when it should be as to the further maintenance of the action, 531, 2- 
 
 not proper in pleas in abatement, 446. 
 
 ACTIO PERSON ALIS MORITUR CUM PERSONA. 
 
 maxim and rules relating to in general, 56 to 59. and 77 to 86. 
 don't apply when the action is in form ex contractu, 56, 7. 
 efl'ect of death, (see title Abatonent.) 
 
 1st. of the party injured, in case of an injury, 56 to 59. 
 
 to the person no action lies, 56. 
 
 to personal property action lies and when, 56 to 58. 
 
 to real property wlien action lies, 58, 9. 
 2dly. of tiie wrong doer, and general rule as to injuries, 7B. 
 
 to the person, 78. 
 
 to persontd property, 78, 9. 
 
 to real property, 80. 
 executor may support replevin, 159. 
 
 ACTION PREMATURE, 
 plea of, 442, 3. 
 
 ACTIONS. 
 
 by and against whom to be brought, (see title Parties per totum.) 
 distinction between action in form ex contractu and ex delicto, 2. 52. TS. 
 form of action misconceived, jilea of and consequences, 442. 
 prematurely brought, plea of, &;c. 442. 
 
 another action depending for same cause plea of, in abatement, 442, 3. 
 
 in bar, 443. 
 
 replication to, 443. 454. 
 When an action lies in general, 83 to 87. 
 Forms of action 
 
 established forms to be observed, 85, 6. 
 division of 
 
 1st. ex contractu. 
 
 Assumpsit, (see title Assumpsit,') 88 to 100. 
 Debt, (see title Debt,) 100 to 109. 
 Covenant, (see title C'o'venant,) 109 to 117. 
 Detinue, (see title Detinue,) 117 to 122. 
 and ex delicto, 
 
 nature of injuries ex delicto as they affect the forms 
 of action, 122 to 131. 
 material distinctions between injuries, 
 with or without force, 122. 
 immediate or only dnsequential, 122. 
 what injuries are forcible, 133 to 125. 
 what immediate or consequent, 
 Ifegality of original act when not materia], 128.
 
 INDEZ- ^55 
 
 ACTIONS— (confiViufa) 
 
 intent when not material, 129. 
 
 summary of points, on which tlie form of action may de- 
 pend, 131. 
 Case, (see title Case,) 133 to 147. 
 Trover, (see title Trovtr,) 147 to 157. 
 Ueplevjn, (see title I<ep!tvin,) 157 to 162. 
 Trespass, (see title Trtspass,) 162 to 187. 
 Ejectment, (see titk- Ejectment,) 188 to 193. ^ 
 Cftnseauences of mistake in form of action, and mode of objecting to, 193 to 
 ^ [196 442. 
 
 if the objection appears on the face of the declaration, 
 formerly usu:,l \o ])leud in abaltmeni, 44<t. 
 defendant may (lemur, 194. 
 
 defendant may move in arrest of judgment, 194. 
 defendant may support error, 194. 
 
 not in treneral a ground of nonsuit on account of costs, 194. 
 if the objection does not appear on the face of the declaration, 
 
 the ground of nonsuit, and ciefendant entitled lo costs, 194, 5i 
 plaintif rriav prt.ceed in a fresh action, 195. 
 Of joinder of actions, (see title- joinder nf Actions,) 196 to £07- 
 Of election of actions, (see title Election of Actions,) 207 to 214. 
 
 AD D.\MNUM, (see iit\e Damage.) 
 
 when proper or not, in conclusion of a declaration, 360. 397, 8. 
 in debt qui tam, 360. 
 in covenant, 362. 
 f in genei-al, 399- 400. 
 
 ADDITIONS. Statute of, 
 
 additpin of defendant's residence and degree necessary in original writ, ?4"6; 
 
 what addition proper, 246, 7. 
 
 not necessary in a declaration, 247. 288. 
 
 when not pleadable in abatemeni, 440. 
 
 ADMINISTRATOR, (see title Parties and Executor.) 
 
 ADMISSION, (see title Confession and Avoidance,) 600. 
 
 AFFIDAVIT. 
 
 of truth of dilatory pleas, (see title Ahatevrcnt,) 452, 3. 
 
 of truth of pleas puis darrein continuance, (see title Puis Darrein Conttntt- 
 ance,) 633. 
 
 AGENT, (see titles Parties, Master and Servant, and Servant.) 
 when he can or cannot sue on a contract, 5. 
 when he may or may not be sued on a contract, 25, 6. 
 when he may be sued for a tort, 67. 69. 
 
 AGISTOR. 
 
 of cattle, may sue for injuries thereto, 48. 
 
 ALIA ENORMIA. 
 
 statement of, in trespass, and what may be proved under it, 387, ^" 
 
 ALIEN ENEMY. 
 
 when it may be pleaded in abatement or bar, 435, 6. 
 
 when it may be given in evidence in assumpsit, 470. 47.i" 
 
 when it should be pleaded, 473. 
 
 certainty requisite in the plea, 238: 
 
 replication to, 551, 2. 
 ANCIENT DEMESNE. 
 
 plexof, 429.
 
 ^^^ INDEX. 
 
 ANCIENT LIGHTS, 
 
 remedy for obstructing- of, 142. 
 
 action may hem name of teiijiiit, or reversioner, 14J. 
 
 declaration for, 367, 
 
 ANIMALS, (see titles Dogs, Cattle.) 
 
 when an action lies for injuries to, 165, 6. 
 
 ■when an action lies for an injury committed by them, 182.69, 70.' 
 
 ANNUITY DEED. 
 
 replication to plea that there is no memorial, &c. 555. 
 
 APPEARANCE OF DEFENDANT, 
 how described in a plea, 410. 
 in person, ib. 
 byattcn-ncy, 410. 412. 
 
 in a different name to thnt sued by.. 411, 412. 448, 9- 
 by a feme covert, 412. 449. 
 by an infant, 412. 449. 
 in pleas to tiic jurisdiction, 412. 449. 
 must be in name of only one attorney, 412. 
 
 APPRENTICE. 
 
 remedies for injuries to master's right in, 138, 
 
 ARBITRAMENT, (see title Avanl.) 
 
 may be given in evidence in assumpsit, 472, 
 
 in case, 487. 
 must be pleaded in trespass, 496. 
 
 ARBITRATION BOND. 
 
 Replication to plea of nul tiel award, Sec. 55j. 
 
 ASSAULT AND BATTERY, (see title Trespass.) 
 action for, lies atjainst two persons jointly. To. 
 
 ASSIGNEE, (see titles Parties and Bankrupts.) 
 
 of a chose in action, whe* he may sue, 11.95. 
 
 when he cannot be sued, 34, 5, 6. 
 of a bankrupt, (see titles Parties ».nA Bankruptcy,) 
 
 when assii::;-nees should sue and when nut, 15. 10. 
 
 provisional assignee, 15. 
 
 in case of removal of an assignee, 15, 
 
 joinder with solvent partner,^ 15. 
 
 oil contract, &c made since bankruptcy, 15. 
 
 joinder in action, 16. 
 
 consequence of all not joining, 15. 
 
 when suit does not abate, 15. 
 
 how to sue, 201, 2. 
 
 when may declare in their own right, IS. 
 
 when the bankrupt may sue on a contract, 10. \5, 16. 
 
 in trover, &c. 149. 
 when assignees may be sued, 4L 
 of aft estate in land, 
 
 when he may sue on a contract, 11. 
 
 for a tort, 54. 
 how far lial)le for a c^itract, 36. 
 for a tort, 77. 
 of a term of years, 
 
 how to declare at the suit of, 352. 347. 
 how to declare agauist, 3.53.
 
 INDEX. 655 
 
 ASSIGNOR, (see title Assignee, and Parties,) 
 
 of an estate in land, when he cannot distrain, Stc. 11. 
 
 ASSUMPSIT, ACTION OF, 
 
 parties to, wlio to be plaintiff" and who defendant, (see title Parties.) 
 why so called, 88. 
 
 definition, and g-eneral object of it, 88. 
 history of it, 89. 
 when it lies in general, 89 to 99- 
 
 upon simple contracts, not under seal, 89 to £o. 
 upon contracts implied, 90 to 93. 
 where there has been no contract, 90, 91. 99. 
 tv'hen the only remedy, 
 
 apfainst an cNccutor or administrator on simple contract, 93, 4. 
 for monev payable by instalments where whole not due, 93. 
 on a collateral undertalung, 94. 
 OTi a bill or note where tliere is no privity, 94. 
 
 on an award not for payment of money and where there is no bond, 94. 
 when not sustainable and exceptions, 94 to 99. 
 not on a deed or record, 94. 
 not where there originaiiy was a valid deed or record, 94- 
 
 exceptions where deed not executed by defendant, 95. 
 
 for rent where there is no demise, 95. _ ,_^ 
 
 where there has been a deed of sei)arate maintenance, 95, 
 where the deed is invalid, 95. 
 where there has been a new contract, 95. 
 on a contract in consideration of forbearance, 95, 6. 
 on an account stated between partners, 96. 
 where there has been a fresh a8:reement, 96. 
 not where a higher security has been since taken, 96 to 99. 
 exceptions where fresh deed, &.c. invalid, 96. 
 bond for rent no extinguishment, 97. 
 not a mere collateral security, 97. 
 lies for rent, &c. issuing out of realty, 97, 8. 
 lies on a statute, 98. 
 
 on a judgment of a court not of record, 98. 
 when not by a partner against his copartner, 98. 25, 6j 7. 
 when not against a corporation, 98. 
 not in case of illegal distresses, &c. 99. 
 Pleadings, &c. in, in genera!, 
 the declaration, 99. 
 pleas, 99, 100. 
 judgment, 100. 
 costs, 100 
 Pleadings in, in particular. 
 Declaratiox. 
 
 title of court, (see title Declaration,) 261. 
 of term, (see title Declaration,) 262 to 267. 
 venue in, (see title Venue,) 273. 
 commencement of, (see title Declaration,) 285. 288. 
 cause of action, statement of, in 
 Special counts, 292. 
 1. inducement, 
 
 defined, 292. 
 utility, 292, 3, 4. 
 form of, 293, 4. 
 3. considerations, statement of, 
 
 when to be stated, 295. 
 
 how to be stated in general, 295< 6.
 
 £5G INDEX. 
 
 ASSUMPSIT— (conmmeti') 
 
 2. considerations — (continued) 
 
 several descriptions and how pleaded 
 
 1. executed, 296, 7. 
 
 2. executory, 297. 
 
 3. concurrent or mutual, 297. 
 
 4. continuing-, 298. 
 
 defect of sufficient consideration, how to be objected to, 298" 
 
 3. contract, statement of 
 
 how to be stated, 14. 
 
 to be stated in words or according' to leg-al effect, 298, 9. 302; 
 
 super se assumpsit proper in all cases, 299. 
 
 by andtowliom, 299- 
 
 sufficient to shew that part on whicli the action is founded, 299. 
 
 but a condition precedent or matter qualifying must be slated, 301 
 
 to 303- 
 contract in ihe alternative, 302. 
 variances what fatal, 303 to 308. 
 statement under a scilicet, 3u8. 
 
 4. averments, (see title Averments-) 
 
 defined, 308. 
 
 of the performance, &.c. of a condition precedent, 309jto 319, 
 not necessary wlien consideration was executed, lOQ. 
 necessary where consideration was executory, 309 
 when necessary in case of mutual conditions, 309, 310- 
 g'eneral rule as to averments, 309 to 315- 
 form of averment, 315. 
 of performance, 316. 
 of excuse of perf irmance, 317. 
 of readiness to perform, 318. 
 consequence of mistake, 319. 
 of the defendant's ?;o^ce of facts alleged, 319. 
 when necessary, 320 
 how to be stated, 322. 
 consequence of mistake, 322. 
 of a request on defendant, 
 
 when necessary, 322. 
 form of stating, 324. 
 5. breach, (see title Breach.) 
 
 necessary to be stated, 325. 
 
 how in case of a mere money demand, 325. 
 
 in special counts, 325. 
 
 form of, 
 
 should in substance accord with the contract, 325. 78. 
 what sufficient, 326. 
 
 whei-ethe contract was in disjunctive, 327. 
 if too large or bad, 328, 9. 
 injudicious to be too narrow, 329. 
 should be certain and particular, 329, 330- 
 se^'cral breaches when they may be assigned, 330. 
 of the allegation of defendant's fraudulent intent, 331. 
 insufficTency of breach how to be objected to and when fatal 
 or aided, 331, 2. 
 6. damages, (see title Dunnages,) 
 
 "■what necessary to be stated, 3.32. _ 
 
 damages necessarily incident need not, 332. 
 but special damages must, 332. 
 too abundant a statement not prejudicial, 333. 
 how to be stated, 333 
 consequences of misstatement, 333. 
 Common counts, 333 to 343. 
 
 geaeral utility of, 333, 4*
 
 INDEX. 6^^ 
 
 ASSUMPSIT— ^continued.) 
 
 Comvion counts — {continual.) 
 
 are for money demands, 
 
 tlie indebitatus assumpsit count, 334, 5, 6, T. 
 
 the Quantum meruit, 335. 337. 
 
 the i^antam valebant, 335. 337. 
 
 tiie account stated, 336. 
 
 common breach, 336. . 
 
 history as to these counts, 336, 7- 
 
 general form and requisites of, 337. 
 
 wlien relating to real property, 338. 
 when rehiting to goods cr personal properiy, 338, 9- 
 when relating to wort^ and. personal services, 33y, 340 
 when relating to monies, 340. 
 money lent, 340. 
 money paid, 340. 
 money liad and received, 341. 
 account stated, 343. 
 by and against executors and administrators, &c. 343. 
 Joinder of several counts in, 390 to 397- 196 to 207. 
 
 Pi.EAS 1^, 
 
 to the jurisdiction, (see title yurisdiction-) 
 in abatement, (see title Abatem.ent.) 
 in bar, (see title Pleas in bar in general.) 
 analytical table of defences, 461. 
 the several pleas, 
 
 general issue non assumpsit in general, 465 to 469. 
 form of it, 469. 
 
 what may be given in evidence under it, 469 to 47S. 
 another person who ought to sue,'470. 
 infancy of defendant, ib. 
 lunacy, ib. 
 drunkenness, ib. 
 coverture, ib. 
 illegality, ib. 
 alien enemy plaintiff, ib. 
 statute frauds, ib. 
 release l)e fore breach, 471. 
 bankruptcy of plaintiff, 471. 
 coverture of plaintifl', ib. 
 payment, 472. 
 accord and satisfaction, ib- 
 negotiable security, ib. 
 foreign attachment, ib. 
 arbitrament, ib. 
 judgment recovered, ib. 
 higher security, ib. 
 release after breach, ib. 
 better to plead specially, when, 472, 3. 475 
 Special plea when necessary, 
 
 alien enemy, plaintifl, 473. 
 outlawry, plaintift", ib. 
 bankruptcy of defendant, ib. 
 insolvent debtor defendant, ib. 
 tender, ib. 
 set-off, ib. 475. 
 limit.ations, statute of, ib. 
 courts of conscience acts when, 474. 
 when at liberty to plead specially and advisable, 474, 5- 497, f 
 the qvialities of pleas in bar, (see title Fleas in bar.) 
 ibe forms of jileas in bar, &c. (see title Pkns ,■?; /';?'- "" 
 Vot.. 1- [61 ]
 
 &<S6 index: 
 
 ASSUMPSIT— Ccon?*nwe(i.) 
 Kepli&ations to, 
 
 1. several sorts, 
 
 to-aplea of Infancy, 551. 
 coverture, ib. 
 alien enemy, ib. 
 insolvent debtors act, 55 J- 
 illep ality in the contract, ib- 
 tender, ib. 
 
 accord and satisfaction, 55J. 
 arbitrament, ib. 
 judgment recovered, &.c. ib. 
 release, ib. 
 set-otf, ib. 
 
 court of conscience, 554. 
 statute of limitations, ib. 
 
 2. forms of, (see title Jieplications and the particular /ieacls,)570 to 617. 
 
 3. qualities of, (see title JReplications and the particular heads,) 617 to 
 rejoinders in, (see title /Rejoinders.) {^626. 
 
 ATTACHMENT FOREIGN, (see title Foreign attachments.) 
 
 ATTAINDER. 
 
 plea that plaintiff has been attainted of treason or felony, 43'G. 
 
 ATTORNMENT. 
 
 when not necessary to be alleged or proved, 11. 
 
 ATTORNEY, (see titles Jgent, Bailee and Servant.) 
 Remedy ngainst for misconduct, 
 
 when not liable on a promise on behalf of his client, 24. 
 
 assumpsit against, 92. 
 
 case against, 138. 
 
 trespass against for irregular process, 8cc. 184'. 
 
 conclusion of declaration against, 400. 
 liow and ^vhen to plead by, 410 to 412. 
 
 what pleas to be pleaded by, 449. 
 
 in name of only one attorney and not several, 530 
 plea of privilege by, when aftidavit not necessary, 52, 3. 
 
 AUCTIONEER. 
 
 when he may sue, 5. 
 
 when he may be sued, 24, 5. 
 
 AUTER ACTION PENDENT, 
 plea of in abatement, 443. 
 in bar, 443. 
 replication thereto, 443. 557, 
 
 /VVERMENT. 
 
 defined, 308. 
 
 form of, 315 to 319. 
 
 in a declaration, 315- 
 
 in a plea, 537, 8. 
 
 in a replication, 61G. 
 m a dcclai-ntion in assumpsit. 368 to 324. 
 
 of a condition precedent, 309 to 319. 
 
 of notice to defentlant, &c. 319 to 32?. 
 
 of request, 322 to 324. 
 
 AVOrVVRY, (see title Eeple'vin.')
 
 INDEX fi3|5 
 
 AWARD. 
 
 how to be slated in a replicalion, 551. 
 
 BAIL. 
 
 remedy for not acceptin!? of, 186. 137. 
 wliat bail cannot plead, 460. 
 
 BAIL-BOND, 
 
 debt upon, 103. 
 
 defence to action upon, how to be taken advantag-e of, 479. 
 
 replication to plea, 556. 
 
 case against sheriff for not assigning of, 140. 
 
 BAILEE. 
 
 -when he may sue, 48. 170. 
 
 assumpsit asrainst, 92- 
 
 case against, 134. 138. 
 
 trespass against, when it lies and when not, 170, 1, 2. 
 
 BAILIFF, (.see title Sheriff and Officer.) 
 
 when he is liable to be sued, 7i. 185, 6. 
 traverse of defendants being so in replevin, 560. 
 when not in, trespass to land, 565. 
 
 BANKRUPT, C-see titles Parties, Assignees and Joinder.) 
 when he may sue on a contract, 10 ■ 15, 16. 
 
 cannot sue his assignees for his allowance, 16. 
 when he may be sued on a contract, 40, 1. 
 wiien he may sue for a tort, 59, 60. 137. 
 ■when he may be sued for a tort, 80, 1. 
 
 form of action, 137. 
 wife of (see Baron and Feme,) 44. 
 assignees of, when to join, and for what demands, 201, 2. 
 
 BANKRUPTCY. 
 
 of the plaintiff. 
 
 pending suit when it does not abate it, 15. 
 
 when it may and should be given in evidence and not pleaded, 471. 
 
 in debt on specialty or record should be pleaded, 
 
 in case or trover, 490. 
 
 ]5uis darrein continuance, 635. 
 of the defendant, A7o. 
 
 must be pleaded, 473. 
 
 form of ttie plea, 538. 
 
 jnay be pleaded generally though certificate obtained pending actioi), 6o5 
 
 when a bar to an action f)f covenant, 483. 
 
 of husband, how far it discharges his wife, 44. 
 
 BAR, (see title Pleas in Bcr.) 
 
 criterion and distinction between a plea in bar and in abatement, 445. 4"59: 
 
 BARON AND FEME, (see titles Parties, Coverture.) 
 
 when they may ^ue and how upon a contract, 17 to 23. ^ 
 
 w-hen they are to be sued and liow upon contract, 42 to 45- 
 
 when they may sue and how for torts, 46. 
 
 when they may be sued for torts and how, 81, 2. 
 
 when liusband should sue with or without liis wife, 46,7. 
 
 when he should sue alone in replevin, 62. 
 
 when may join or sever for a tort, 60 to ^5- 
 
 feme covert when liable for a tort, 65. 
 
 plea that plaintiffs suing as such are not xnarrled, 441'- 
 
 must join, in plea when, 543
 
 660 INDEX. 
 
 BENEFICIAL INTEREST, (see title Cestui que Trusi ;. 
 
 BILL OF EXCHANGE, 
 
 when debt does not lie upon, 94- 
 delivery in siitisfactioii, plea of, 472- 
 
 BONA NOTABTLIA. 
 
 plea of hnw to be pleaded, 445. 
 when to be pleaded, 484'. 
 
 BOND, (see title DeeJ, Parties to Action,) 
 
 assignoi- of when he must sue, IL 95. 
 assignee of when he may sue, 11. 95. 
 assumpsit to pay it on new consideration, 95, 
 debt vipoii, 103. 
 profert of, 348, 9. 
 
 liOROUGH ENGLISH. 
 
 custom as to pleading' it, 220. 
 
 BREACH, (see particulars under title Assumpsit.) 
 statement of it, 
 
 in a declaistion, 
 
 how to be stated, 325 to 332. 
 several breaches when permitted, 330. 
 consequences of mistake, 331, 2. 
 common breach to money coimts, 336. 
 in debt, 359, 3bD. 
 in a replication, 
 
 when it must be stated, 555, 6. 598, 9. 
 
 when several breaches may be stated in, 550. 599. 
 
 iiliOKER. 
 
 when he may sue, 5. 
 when liable to be sued, 25. 
 
 .CAPTAIN, 
 
 t:f a ship, 
 
 when he may sue for Sreig-ht, &c. 5. 
 
 for seizure of ship, 12r, 8. 
 when he is liable and may be sued, 24- 27- 
 how to be sued for the loss of goods, &c. 24, 5. 
 in assumpsit, 92. 
 
 in case when preferable, 134, 5. 145- 
 of a troop, &;c. when liable, 23. 
 
 CARRIAGES, Negligent driving of. 
 who to sue for, 48, 9. 
 
 who to be sued for where injury committed by servant, Gb5, 9. 
 form of action for, 
 
 trespass when it lies, 126, 7- ISO- 
 case wlien it lies, 139. 
 . must be case against a master for the act of his servant, 151.159. 
 declaration in how to be framed in ca.se, 127. 13^. 
 
 j^ARHIER. 
 
 liable for act of his servant, 69. 
 
 action against by whom to be brotight, 3- 
 
 when he may sue a stranger for injury to goods, 48 
 
 ■fbrrn of action agaiifst, 
 
 in assumpsit, 92. 
 
 in case when preferable, 338.135.
 
 INDEX. 661 
 
 CARRIER— {continued.) 
 declaration against, 
 
 need not state custom of the realm, 219. 
 statement of contract when not necessary, 134, 5. 
 
 CASE, ACTION OF, 
 
 how far affected by the nature of tlie injury in general, 123 to 133. 
 whether forcible or not, 123 to 125. 
 wlietber immediate or consequential, 125 to 128. 
 Icg-ality of the original act, 128. 
 intent," 129. 
 exceptions, 130, 1. 
 
 summary of the leading points governing form of action, 131, 2. 
 why so called, 133. 83, 4, 5. ' 
 S-eneralapplicabiliiy of this action, lies, 133. 
 at common law, 
 
 for nonfeasance, misfeasance, and malfeasance, 134. 
 
 defined, 134. 
 for breaches of what fowfracfi', and when preferable to assumpsit 
 134, 5. 138. 
 not on contracts merely for payment of monev, 134. 
 for obstructing a way, contrary to express agreement, 134. 
 lies against bailees, &c. 134, 5. 
 for injuries to the person, 136 to 138. 
 to the absolute rights, 
 
 i7iischicvous animals, keeping of, 136. 
 
 when trespass lies, ib. 
 malicious prosecutions, 136. 
 
 when trespass lies, 137. 183 to 187. 
 slander verbal and written, 137. 
 health injin-ies to, 137. 
 refusing to accept bail, &.c. 137. 
 against surgeons, agents, &c. 137. 
 to the relative rights, 
 
 criminal convei'sation, 137- 
 debauchiiig daughtei-s, 138. 
 
 trespass lies, 2 New liep. 476. 
 enticing away servants, &.c. 138. 
 for injuries to personal property and brt-aciies of contract, 138 to l41. 
 case proper where injury eitiier not forcible or not imme 
 
 di.ite, or to property in reversion, 158, 
 against attornies and bailees, &c. for neglect, Lc. 138. 
 
 when preferable to assumpsit, 138. 
 breach of w-arranty, 139. 
 
 deceitful representations of another's solvencv, 133. 
 negligence in driving carriages or navigating" sliips, 139. 
 distress illegal, 139, 140- 
 pound breach and rescue of distress, 140. 
 rescue of party arrest-ed, 140- 
 cscapes or not arresting, 140, 1. 
 false returns, ib. 
 
 !iot levying under a fi. fa. &c. 140, 1. 
 not delivering letters, 141. 
 
 against a \\ Itness for not obeying a subpccna, 141. 
 copy-right and patents, infringing of, 141. 
 reversionary property, 141. 
 for injuries to real property, 
 corporeal, 
 
 when the remedy must be trespass, 141. 
 for nonfeasance, &c. must be case, 141. 
 injury not committed onplaintifl's land, 141.
 
 0Q2 INDEX. 
 
 QASE, ACTION Ol'~.(conttnucd.) 
 
 where plaintiff's rig-ht is In reversion, 141, i, 
 tiilie, nc t carrying away, 1-11. 
 ancient lights, 142. 
 nuisances to houses, land, &c. 142. 
 ■watercourses, injuries to, 142. 
 waste, 142. 
 
 dilapidations in a rectory, &.c. 142- 
 fences not repairing of, 143. 
 incorporeal, 
 
 commons, disturbance of, 143. 
 ways, disturbance of, 143. 
 pews, disturbance of, 143. 
 officers, franchises, markets, &.c. 143. , 
 by statutes, 
 
 in general, 143, 4- 
 
 landlord against sheriff not paying a year's rent, 144- 
 hundred, -ictions against, 144. 
 distresses irregular, 144- 140. 
 
 againsi justices wiiere conviction quashed, 144, 5. 
 when and why case is or is not preferable to i.ther actions, 145, 6. lo4. 
 the pleadings, judgment and costs in, in general, 146, 7. 
 pleadings, kc. in, in particular, 
 "nECLAKATiON, ^sce particular heads of injuries.) 
 
 title of the court and term, (.see title Declaration,) 261 to 264 
 venue in, (see title Venue.) 
 commencement, 285 to 292. 
 
 statement of the matter or thing affected, 362 to 364. 
 of the plaintiff's right or interest thereto, 364 to 374. 
 of tiie injury, 3/4- to 385. 
 of the dam.tpes, 385 to 390. 
 conclusion, 297 to 400. 
 pled-ges, 400 
 several counts in, 390 to 397. 
 I'LEAs in, 
 
 general issue, f<^rm of it, 4S6, 7- 
 
 what may be given in evidence under it, 486, T 
 must plead specially truth of slander, &.c. 487. 
 
 fresh puisuit, in actions for escape, 4S8, 9. 
 wlien advisable fo plead specially, 489. 
 statute of limitations must be pleaded, 490. 
 replications in, 
 
 when de injuria proper or not, 559, 560. 
 
 CATTLE, (see title Dogs, Animals.) 
 
 Distinction as to liability for injuries committed by, 
 
 domestic animals, as dogs, &c. scienter material, 69. 
 
 remedy case, 69, 136. 
 cows, sheep, &c. for trespassing on land, trespass, 70 
 animals fer^e naturae, trespass, &c. 70. 136. 
 
 CASSETUR BILLA VEL BREVE, (see title Abatement.) 
 
 when it need not be entered and plaintiff may amend, 454 
 when it must be entered or plaintiff amend, 454. 
 at what time to be entered, 455. 443. 
 
 CEPIT IN ALIO LOCO, (see title Replevin.) 
 plea of in replevin, 490. 
 replications to when proper, 560.
 
 INBEX. 66S 
 
 CERTAINTY. 
 
 defined, 236- 
 
 degrees of, and what «e«essary in different parts of pleadin.^, 236 to 241. 
 the words " certain," " duly," " lawfully," &c. of noavail,240, I 260. 
 what necessary in a declaration, (see title Declaration,) 256 to 261. 
 
 plea. 513 to 518- 
 
 replication, 624. 
 
 new assignment, ^see title Neiu Asiignment.) 
 
 CESTUI QUE TRUST, 5. 
 
 when he can or cannot sue, 546. 49. 66. 
 in ejectment, 49. 190. 
 
 CHOSE IN ACTION 
 
 when assignee of cannot sue, 10. 
 
 assignor or his executor or administrator must sue on, 10. 
 
 assignee may sue on a new promise for a new consideration, and how, 11, ^5.. 
 
 assignee of estate in real property, when he may sue, 11. 
 
 assignee of chose in action when he cannot be sued, 34. 
 
 estate in land, when he may be sued, 35, 6. 
 
 CIVIL LAW. 
 
 when points relating to need not be stated in pleading, 220. 
 
 CIVILITER MORTUUS. 
 
 ■wife when liable to be sued, 438. 
 
 CLAIM OF CONUSANCE, (see title Conwance.) 
 
 CLOSE. 
 
 meaning of the term, 173, 4. 
 
 ■when proper in pleading, 362. 
 
 when to be described by name or abuttals, (see title Abuttals.) 
 
 CO-EXECUTORS, (see title Executors and Parties.) 
 
 nonjoinder of one as plaintiH, how to be objected to, 7. 13, 14. 
 as defendant, how to be objected to, 33. 38.. 
 
 COGNlSx\NCE, (see title Replevin.) 
 
 COLLATERAL UNDERTAKING. 
 
 assunipsit the proper remedy upon, 94. 
 declaration must be special, 339. 
 debt does not lie upon, 106. 
 
 COLOUR IN PLEADING. 
 
 in a plea, 
 
 defined, shews matter to the court, why action don't He, 499. 501. 
 implied colour, 498, 9. 
 
 infency, coverture, payment, Sec. are instances, 499. 
 in trover, &c. 499. 
 express colour, 
 
 when necessary or not, 500, 1, 2. 
 m trespass, &c."where defendant justifies under a demise, S;o. 
 
 500, 1. 
 firm and requisites of, JOl. 
 addition of unnecessarily, only surplusage, 50^ 
 defect in or omission wlicQ aided, 502,- •'"'>. 
 not travfrsabl/?, 501.
 
 664^ INDEX. 
 
 COLOUR IN PLEADING, {continuc<i.) 
 
 in :i replication, Sec. not necessary, 601. 500. 
 
 the insertion of it will not vitiate, GOl. JOU. 
 
 COMMAND, (see title Bailiff.) 
 
 traversable in replevin, &.c. 560. 586. » 
 
 when not in trespass to land, 566. 586. 
 replication to de injuria is insufficient, 581. 
 
 COMMENCEMENT. 
 
 of a declaration in assumpsit, (see title Declaration,) 285 to 292. 
 
 in debt, &c. 344. 
 of a plea, 
 
 in abatement, (see title Ahatevient,) 450. 
 
 in bar, (see title Pleas in bar.) 
 of a replication, (see title Replication,) 572, 3, 4. 
 
 COxMMON BREACH, (see title Breach.) 
 in a declaration, 
 
 in assumpsit, 356. 
 
 general observations upon, 336, 7. 
 general nature and requisites of, 336, 7 
 in debt, 359. 
 in covenant, 361, 2. 
 forms of, 334, 5, 6. 
 
 COMMON COUNTS, (see title Declarations.) 
 in assumpsit, 333 to 343. 
 in debt, 334, 5. 
 
 COMMON INFORMER, (see Penal Statute.) 
 
 COMMON LAW RIGHTS AND DUTIES. 
 
 what need not be stated in pleading, 219. 
 
 COMMON, RIGHTS OF. 
 
 when a commoner may sue, 50, 
 remedies for injuries to, 143. 
 
 when case, 143. 175. 7, 8. 121. 
 when trespass, 143. 
 declarations for obstructing of, 367. 
 ejectment lies to recover when, 188, 9. 
 must be pleaded in trespass, 495. 
 replication to plea of, 568. 592,3. 
 new assig-nments relating to, 611, 612. 
 
 COMMON, TENANTS IN, (see also title Partners.) 
 
 when they may join or sever in actions by them, 9. 
 must sever in avowry, he. and how, 9. 543, 4. 
 when one cannot sue his co-tenant on a contract, 25, 6. 
 when one cuunot sue his co-tenant for a tort, 66. 
 
 COMPANY, (see title Corporation.) 
 
 when too general a description of the parties to the suit, 256- 
 
 COMPOSITION DEED. 
 
 when trustees cannot sue, 11. 
 
 CONCLUSION, (see titles Z>ec/araf/o;!«', Pleas, Replications) 
 of a declaration, 399, 400-
 
 INDEX. 665 
 
 CONCLUSION— (conf/nuec/) 
 of a plea, 
 
 in abatement, 445, 6. 450 to 452- 
 
 in bar, 535 to 540- 
 of a replication, 572. 
 
 when it should be to the country, 592; 
 of a new assignment, 612, 13. 
 
 CONDITIONS PRECEDENT. 
 
 what amounts to, and averments of performance, &c. 309 to 325. 
 of readiness to jierform, and excuse of performance, 310 to 325. 
 in debt, 351. 
 
 CONFESSION AND AVOIDANCE, (see title Replication.) 
 defined, 599. 
 
 admits defendant's infancy, but goods necessaries, 599. 
 admits freeholder's title, but shews a demise from him, 599. 
 must admit the jilea in terms or effect, 600. 
 form and requisites of, 600, 1. 
 
 CONSCIENCE, COURTS OF, (see title Courts.) 
 
 CONSEQUENTIAL INJURIES. 
 
 what so considered, 125. 128. 
 
 remedy for in general, case, S;c. 122. 126, 7- 
 
 dONSIDERATION. 
 
 when essential to validity of a simple contract, 295. 
 
 wlien not, ib. 
 
 when not of a deed, 351. 
 
 must state consideration of deed operating under statute uses, 351- 
 
 illegality efiect of, 296. 
 
 when must be pleaded in case of a deed, 479. 
 when and how the consideration is to be stated in declaration, 295, 6. 
 in assumpsit, 
 
 executed, 296. 
 executory, 297. 
 concurrent, 297. 
 continuing, 298. 
 in debt or covenant, 351. 
 in case against bailees, &c. 368, 9. 
 coQsequencesof a misstatement of it, 298. 
 averment of performance by plaintiff of a condition precedent, 309 
 
 CONSIGNOR AND CONSIGNEE, 
 which to sue a carrier, &c. 3. 
 when consignee may be sued for freight, 35. 
 
 CONSPIRACY. 
 
 remedy for, 136. 
 
 CONSTABLES AND OTHER OFFICERS, 
 venue in actions against local, 277, 8. 
 mav plead general issue and give special matter in evidence, 496. 
 
 CONSTRUCTION. 
 
 of pleading, rules of, 241. [521. 241, 2. 
 
 when and why to be construed most strongly against the party pleading, 
 
 CONTRA FORM AM ST ATUTI. 
 
 when thi^ allegation is necessarv, and consequences of mistake, 356, 7, 8, 9. 
 Vol. I. C 62 ]
 
 66S INDEX. 
 
 GONTRA PACEM, 
 
 not >o be inserted in case, 146. 
 
 sliouid be inserted in trespass, 162, 3- 37S. 
 
 omissio!! aided, unless specially demurred to, 37S, 6. 
 
 CONTRACT, action on, (see title Parties.) 
 
 remedy for breach of, by action on tjfie case, 134, 
 
 how to be st.ited in assumpsit, (see title Jssujtipstt,) 298 to 308; 
 
 how !o be stated in debt, vsee title Debt,) 351, 2. 
 
 parties to actions on, (see title Parties.) 
 
 CONUSANCE, CLAIM OF, 
 defined, 403 
 
 distinctior, between it, and a plea to the jurisdiction, 403; 
 who to be chnmed by. 403 
 general points reiati'ng- to it, 404. 
 
 wliat court may claim it. 404 to 406. 
 
 the actions in which it is claimable, 405. 
 
 the time and manner of claiminp^ it, 406 to 410. 
 pleadings and prcoeeding^ thereon, 407 to 410. 
 
 CONVERSION, (.see title Trover,) 147, 8. 
 
 COPYHOLD AND COPYHOLDER. 
 
 purchaser of, how to declare on a lease, 347. 
 
 when copyh Ider should claim ri^-ht of common, &c. by custom, 56lV 
 
 when to prescribe under the lord, 561, 2. 
 
 COPYRIGHT, 
 
 remedy for injuries to, 141. 
 declaration for, 378. 
 
 CORPORATION. 
 
 not liable to be sued as such for a tort, 65, 6. 
 when not liable on a contract, 98.' 
 assumpsit against don't lie, 98. 
 how to declare in case at the suit of, 368. 
 must plead by one attorney, 530. 
 
 COSTS. ^ . 
 
 how far they depend on form of action, 86. 
 in assumpsit, 101. 
 
 debt, 109. 
 
 covenant, 116, 
 
 detinue, 122. 
 ^ case, 147- 
 
 ■^^ trover, 157. 
 
 replevin, 162. 
 
 trespass, 187. 
 
 ejectment, 193. 
 •when executor not liable to pay, 203. 
 in case of u plea in abatement, 458. 
 how far affected by a special plea, 503, 4. 
 where one of several executors acquitted, 33. 
 
 COUNT. 
 
 i)leas in abatement to, when no longer pleadable, 438, 9. 
 
 COUNTS. 
 
 several, (see title Declaration.) 
 
 when they may be joined, (see title joinder in Action,) 196 to 206, 7'.
 
 INDEX- 6$Z 
 
 COVUT—l^(ontinued.) 
 
 when proper to be inserted in a deelaration, (see title Several Counts,) 
 390 to 397. 
 
 COUNTIES PALATINE. 
 
 how far reco.^nised by the superior courts, 223. 
 are superior courts as to hiying' venue, 280, 1. 
 pleas to jurisdiction of, 430, 1. 
 
 COUNTY COURT. 
 
 how venue to be laid in, 280, 1. 428. 
 
 pleas and objection to jurisdiction of, 428, 9. 
 
 several pleas not allowed in, 541. 
 
 COUNTRY. 
 
 when and how pleas conclude to it, 535, 6, 7. 
 when and how rtplicutions conclude to it, 614, 5. 
 
 COURTS. 
 
 division of and distinction between as to jurisdiction, 404, 5. 42?. 
 
 COURTS, INFERIOR, (see titles Inferior Courts and Jurisdictions.) 
 how f'ai' noticed without pleading- their practice, 5«.c. 225, 6, 
 how defects in jurisdiction to be objected to, 42b, 9- 
 ' how venue to be stated in, 280, 1. 428. 
 when cannot plead several pleas in, 541. 
 
 COURT OF CONSCIENCE. 
 
 statutes, &c as to, wiien or not to be pleaded, 474. 
 replication to, 554. 
 
 COVENANT, action of. 
 
 By and against whom to be brought, (see title Parties^) o, 4, 5. 10, 
 When it lies in g'eneral, 109. 
 
 on any deed, 109. 
 
 upon what in particular, 110, 11. 
 
 on leases when proper and against whom, (see also Parties,) 111. 
 
 when the only remedy or preferable, 112, 13, 14. 
 
 when it does "not lie or not preferable, 112- 114. 
 when not against a devisee, 39, 
 Pleadings, judgment and costs in, in general, 116, 17. 
 Pleadings, &c. in, in particular. 
 
 DECLARATION IN, 
 
 title of court and term, 261 to 264- 
 
 venue in, (see title Venue-) 
 
 commencement of declaration, 360, 1. 
 
 inducement, 361. 346, 7- 
 
 consideration when to be stated, 361. 351. 
 
 tlie deed how to be stated, 348. 
 
 profert thereof, 348 to 350. 
 
 parts of the deed, 361. 351. 
 
 i-oference to deed and lessee's entry, <361. 
 
 derivative title liow stated, 361. 352, 3 
 
 averments of phiinlifl's performance, 8cc. 361. 315. l^c. 
 
 defendant's breach, (see title Assumpsit,) 361, 325. 
 
 conclusion of, 361. 
 
 ad damnum, 362. 
 
 PLEAS IN, 
 
 1. several sorts, 482, 3. 
 
 no general issue, 482. . 
 
 non infregit conventionem a bad plea, 483. 
 
 rien en arrere a bad plea, 482. 
 
 what must bepleadr.t -pecially, 482, 3.
 
 «8$ INDEX. 
 
 COVENANT, action oi— (continued.) 
 PLEAS IN — continued ) 
 
 2. qualities, (see Pleas in Bar,) 507 to 520. 
 
 3. form of, (see Pleas in Bar,) 526 to 547. 
 
 EEPLICATIONS IN, 
 
 3 . several sorts, 557. 
 
 2. forms, (see title PcpHcations,) in 570 to 617. 
 
 3. Qjialities, (see tiile Replications,) 617 to 626. 
 REJOINDERS IN, (sce title Bejoinders,) 627 to 629. 
 
 CaVENANTS. 
 
 miuual and independent, 310. 
 
 dCj etident or conditions precedent, .'311. 
 
 mutual conditions, &.c. to be perfonned at same time, 311. 
 
 joint and several wlio niay sue on, 4. 6. 
 
 doa'di of one of seveial parlies when to be averred, 7. 
 
 for the benefit of a strMnger who to sue, 4, 5. 
 
 made by an agent on belialf oi':* tiiii-d party, 24. 
 
 what covenant assignee will Oe subject to, 34. 36, 40- 
 
 COVERTURE. * 
 
 of defendant, 
 
 at time of making' contract, 
 
 may be g-iven iv, evidence in assumpsit under g'eneral issue, 470- 43?'- 
 
 in debt on specialty under non est factum, 479. 437. 
 may be pleaded, 474 
 must be pleaded in person, 412. 449. 
 replication to it, 438,551.32. 
 existingcoverture, 
 
 must be pleaded in abatement, 437, 8. 470- 
 must be in person, 412- 449. 
 how plea concludes, 450. 
 cannot be pleaded with noti est factum, &,c. 447- 
 replication to it, 43S. 551. 32. 
 of plaintiff, 
 
 when it must be pleaded or may be given in evidence, 436, 7- 471, 2. 
 
 CRAVING OYER, (see title Oyer.) 
 
 CRIMIN/VL CONVERSATION. 
 
 remedy for case or trespass, 137, 8. 164, 5. 2 New Rep. 476. 
 
 CUSTOMS. 
 
 what to be stated in pleading and what not, 219, 220, 1. 293. 
 
 CUSTOM-HOUSE OFFICER, 
 venue in action against, 278. 
 
 DAMAGES, (see title Assumpsit and Ad Davvmm.) 
 statement of in body of the declaration, 
 what necessary to be stated, 332. 
 how to be stated, 333. 
 consequences of misstatement, 333. 
 in actions for torts, 
 general what, 385- 
 special being what has really taken place, 385. 
 
 must be stated or when not to be given in evidence, 386. 
 must be tlie legal and natural consequence of the injury, 388. 
 must be stated with particularity, 389.
 
 INDEX. 669 
 
 DAMAGES— (co«f?Hi/ff/-) 
 
 statement oi— {continued.') 
 
 no part must be stated to have arisen after commencement of the 
 action, 390. 
 at the end of the declaration, 
 
 in general, 397 to 400. 
 
 in assumpsit, 99. 
 
 in debt, 360. 
 
 in debt qui tam, 360. 
 
 in covenant, 362. 
 
 in actions by husband and wife, 398. 
 
 at tiie suit of an executor, assignee, &c. 398. 
 
 to what amount to be stated, 398, 9. 
 
 consequence of taking a verdict for more, 398, 9. 
 
 DATE. 
 
 when material and not to be departed from in pleading, 622, 3. 
 
 DAUGHTERS, (see Master and Servant.) 
 
 remedy for debauching of or enticing away, 137, 8. 
 trespass lies when, 165. 2 New Rep. 476. 
 
 DAYS OF WEEK, ^c. 
 
 statement of in pleading, 221. 
 
 DEATH, (see titles Abatement, Actio Personaiis.) 
 
 of one of several plaintiffs or defendants does not abate suit, 55. 30, 1. 
 
 of a parcener, effect of, 10. 
 
 of v.-ife or husband, effect of, 21, 2. 
 
 form of declai-aiion in rase of, 7- 12. 37- 290, 1. 
 
 plea of in abatement, 435. 
 
 DEBAUCHING DAUGHTER, (see tides Daughter and Master and Servant.) 
 
 DEBET AND DETINET. 
 
 when proper to declare in, in debt, 344. 
 against an executor for rent, 353- 
 
 DEBT, ACTION OF. 
 
 parties to, who to be, (see title Parties.) 
 
 definition of, 100. 
 
 history' of, 89. 
 
 when it lies in general, 
 
 for money due if readily reducible to a certainty whether due on, 
 legal liabilities,' 101, 2- 
 simple contracts, 101, 2. 
 specialties, 101, 2, 3. 
 records, 101. 103. 
 statutes, 101. 104- 
 in the detinet for goods, 101. 
 when the peculiar remedy against lessee, 105. 
 when advisable, 107. 
 wjftenit does not lie, 
 
 not for unliquidated damages, unless secured by a penalty, lOl. 105, 6. 
 when not on a bill or note, 102. 106, 7. 94. 
 not agaiiisr an executor on simple contract, 106. 93, 4. 
 when not for money payable by instalments, 106.93,4- 
 when not against lessee, 106. 
 not on a collateral contract, IOC 94. 
 when not material that plaintiff should prove the precise sum to be due, 107, 8. 
 pleadings, judgment and costs in general, 108, 9. [344. 94-
 
 670 INDEX. 
 
 DEBT, ACTION 0¥ - (conUmied.) 
 Pleadings in, in pailiciilar, 
 
 DEC{v(M4A TioN in, 343 to 360. 
 
 ijeiicral requisites to be observed, 343- 248 to 261- 
 title oftlte court and term and venue, 344 261 to 285. 
 conimencement stating the sum demanded, &c..o44- 
 
 when ill the debet and detinct or only the latter, 344. 
 tause of" action, 
 
 on simple contract and legalliabilities, 
 how contract to be described, 344, 5. 
 
 form of the indebitatus and quantum meruit count, 344, 5, C: 
 on specialties. 
 
 when inducement of title necessary, 346, 7. 
 consideration when not necessary to be stated, 346, f. 
 deed and time and place of making it, 348, 9. 
 profert wlicn necessary, 348 to 354. 
 how much of deed to he stated. 350, 1. 
 reference to deed, and lessee's entry, 352. 
 deri% ative title, how to be sliewn, 352, 5. 
 averments of plaintiff's performance, &c. 353, 4. 
 on records, 
 
 on recognisances and judgments, 354- 
 general rule not imp. acliable in pleading, 55^. 
 how to declare on, 354. 
 what variatice fatal, 255. 
 pi-ont patet per vecordum necessary, 356. 
 oh statutes, 
 
 commencement of declaration qui tarn, &c. Sod. 
 statement of tiie statute, 356 
 statement ol'tiie oiience, 356, 7, 8, 9. 
 
 time when it took place, (see Fenue,) 35T 
 place wiiere, 276 280. 
 ^ conclusion contra fbrmam statuti, 358, 9. 
 
 per qnod actio accrevit, &.c. 359, 
 breach, (see title Assuvipsit,) oo'J. 
 conclusion, 360. 
 
 Pi.EAS IN, 
 
 analytical table of defences, 461, 2, 3. 
 pleas in, in general, gene) al issue iv/ien proper, 466 
 in debt on simi)le contract and legal liabilities, 476, 
 nil debet, 4~6. 
 non detinct, 4~6. 
 
 statute of limitations to be pleaded, 476. 
 tender and set-ofl", 476. 
 in debt on specialty, 476. 
 when nil debet, proper, 477. 
 
 on a lease, 477. 
 for an escape, 477. 
 
 on ajudgment against an executor suggesting devas- 
 tavit, 477. 
 when not and tliat plaintiff should demur, 478. 9. 
 AVhen 7ion est factum, proper, 478. 
 
 \^ hat may be given in evidence under it, 478, 9. 
 when the plea must be special,. 478, 9. 
 in debt on record, 
 
 when nil debet or nul tiel record proper, 480, 1. 
 wlien the plea must be special, 481. 
 what may be pleaded, 481-
 
 INDEX. tfn 
 
 ^RBT— (continued.) 
 
 PLEAS IS -(continued.) 
 in debt on statute, 
 
 what plea proper, 481. 
 wliat iiiusl be pleaded, 481, 2. 
 qualities of, (see title Fteus in General.) 
 
 if noil assumpsit be pleaded it is a nullity, 507 
 Replica ; io.nS in, 
 
 1. 5e\e al descriptions, 
 on sin. pie contract, 555. 
 on sjjcciahy, 555, 6. 
 
 on recoi'ds, 556. 
 on si;ijites, 557. 
 
 2. t'.iivis ut', (see title P/eas in Bar,) 526 to 546. 
 
 3- qualities oi, (see title Picas in liar,) 507 to 526. 
 
 DECEIT. 
 
 what the proper remedy for, 139. 
 
 .DECLARATION, (see the respective actions.) 
 
 definition of, is a statement of cause of comi)lalnt, 248. 
 lat. its general requisites and qualities, 
 
 Isl- should correspond with the process, &.c. and liow variance to be object- 
 ed to, 248, 9. 
 
 1. in the names of the parties, 249, 250, 1. 
 
 2. in the number of the parties, 252. 9. 
 
 3. in the character in which the i)arties sue or are sued, 2.53. 
 
 4. with the '-aiise and form of action in the aflidavit and ac etiam of the 
 
 writ, 254, 5. 
 2dly. must state ;ill circumstances essential to the support of action, 255. 
 odly. oftiie ceili.inty requisite in a declaration, 256. 
 1st. as to \.\\e parties to the suit, 256. 
 
 2dly. the time when material facts tookplace,(see title Time,)257.2&0. 
 3dly. the place whe'e. 260. 
 4thly. in other circumsiances, 260, 1. 
 2dly. its part and particulra* requisites, 
 
 1st. the title of tht court undterm, 261. 
 of what term, 262- 
 special title when projier, 268. 
 consequences of mistake, 265. 
 .2dly. venue, (see title Venue,) 267 to 285. 
 general rul^s, 267 to 271- 
 ■when it is lo.^al, 271 to 273. 
 •when it is transitory, 273. 
 in actions upon leases, &c. 274 to 276, 
 •when local by statute, 276 to 279 see also 3 Anstr. 871, 
 mode of statinir the venue, 279 to 283. 
 c nsequcnces of mistake, and when aided, 283 to 285. 
 3dly, the cominencenient, 
 
 1. names of the parties and character or right in which thev sue br 
 
 are sued, 285. 
 where defendant sued by wronc: name, 286. 
 where plaintiiT has sued by wron^- n:ime, 286. 
 
 2. mode in which defendant in court, 285, 6. 
 
 in the King's Bench by bill, [286, 7. 
 
 •where defendant in actual or supposed custody of rnvshal, 
 
 where -defendant in custodv of sheriff, 287. 
 
 in the King's Bench bv or;t:in.^l, 288. 
 
 in the Common Picas', 288 290. 
 
 summoned or attached no objection, 288, 9. 
 
 in the Exchequer, 291.
 
 &f% INDEX. 
 
 DECLARATION— (con^'«KCf/.) 
 
 3. brief reeital of the form of action, 285. 28y. 
 
 when concise and use of it, 289, 290. 
 
 4. form in case of outlawry, death, &c. 290, 1. 
 
 5. by and against infants, assignees, executors, attornies, &c. 2$t 
 4thly. The cause of action, 292 to 362. 
 
 In actions ex contractu, 
 
 m assumpsit, (see the particulars under title Assumpsit,) 292. 
 
 1. special counts, statements of, 
 
 inducement, {see t'lile Inducement,) 292. 
 considerations, (see title Consideration, _, 295. 
 contract, and variances, (see t tie Contract and Vari- 
 a\eriTients, (see title Averments,) SOU. [«/jcc*,)298. 
 breach, (see title Breach,) 325. 
 damages, (see title Damages,) 332, 397, 8. 
 
 2. common counts, 333 
 
 in debt, (for particulars see title De6t,) 343. 
 general rules, 343. 
 
 1. on simple contr.icts, and legal liabilities, 344 to 346. 
 
 2. on specialties, 346 to 354. 
 
 when an inducement shewing title proper or not, 346, 
 
 when consideration sliould be shown or not. 346, 7. [7. 
 
 the contract and profert in cui-ia, 346. 
 
 avernu nts, 3t2- 354. 
 
 breach and damages, 359, 360. 398. 
 
 3. on records. 
 
 sufficient to state record, without other circumstan- 
 ces and breach, 354 to 356. 
 
 4. on statutes, 
 commencement qui tarn, &c. 356. 
 statement of tiie statute, 356, 7. 
 statement of the facts, 356, 7. 
 averments, 357- 
 
 conclusion contra formam statuti, 358, 9. 
 breach non-payment, how framed, 359, 360. 
 conclusion ad damnum, when improper, 359, 360. 
 in covenant, 360 to 362. 
 In actions ex delicto, 362 to 390. 
 
 general rule as to mode of stating, 362 to 390. 
 1st. The matter or thing allected, 362. 
 a way, 362. 
 tenement, 362. 
 close, 362. 
 
 personal property, certainty, 362, 3. 
 prescriptions, customs, &c. 363. 
 abutt.als of land, 363, 4. 
 2dlv- The plaintiflf's right or interest in such tiling, 364. 
 a riglit independent of any particular duty of defendant, 
 public or general right not to be stated, 364. 
 particular right implied by law not to be stated, 364. 
 particular right not implied by law must be stated, 364 to 36S- 
 mode of stating interest. 
 ' in person absolute or relative, 365. 
 
 in personal proi)erty in possession or reversion, 365. 
 in real property, corporeal or incorporeal, 365 to 368. 
 in possession, 365. 368. 
 in reversion, 367. 
 a right founded on the duty of defendant, 368. 
 a particular duty, 
 
 1. founded on defendant's contract, express or implied, 
 2i on his particular obligation, 369, [363. 370.
 
 INDEX. dra 
 
 DECLARATION— (^conmued.) 
 
 sheriflTs, carriers, innkeepers, &c. oG9. 571. 
 to repair fences, ways, &c. 369. 
 general obligation of law affecting defendant, 370. 
 
 for not reniovinij a nuisance on defendant's land, &c. 
 370, 1. 
 variance in statement, consequence of it, 372. 374. 
 wiien omission of title aided t>y plea, 365. 
 odly. The injury to such thing-, 374 to 3S5. 
 nature of injuries, 374. 
 
 with or without force, 374. 123. 
 immediate or only consequential, 374. 125. 
 malfeasance, misfeasance, and nonfeasance, 374. 134, 
 in trespass, 374. 
 in case, 376. 
 
 for nonfeasance, 376. 
 scienter when material, 376. 
 defendant's intent or motive, 377 to 380. 
 the injury itself, 380. 
 
 in genei-al how to be stated, 380, 1. 
 in action for slander or libels, 381 to 383. 
 the time when committed, 383,4. 
 the place where committed, 384, 5. 
 4thly. The damages, 
 
 defined, 385. 
 general, 385. 
 special, 385 to 390. 
 ■when to be stated, 386 to 390. 
 how to be stated, 389, 390. 
 5thiy. Of several counts (see title Several Counts,) 390 to 397 
 6thly. The conclusion, 397 to 400. 
 7thly. Profert and pledges, 400, 1. 
 Defects in, when aided, 401. 
 when at common law, 
 
 by the plea, 401, 2. 
 by the verdict, 402. 
 when by statute, 402. 
 
 DEED, (see title Delh-ery, Escrow.) 
 
 when to be stated by defendant, 415, 6, 7- 
 
 consequence of statement of, on oyer, 420- 
 
 misstatement of when aided by oyer, 420. 
 
 how to be described in pleading, 348. 
 
 to be stated according to its legal operation, 351, 2. 302. 518. 
 
 no vmnecessary part to be stated, 352. 
 
 profert of, (see title Pro/erf,) 348, 9. 
 
 given as a security when it may be pleaded or given in evidence, 4, 2. 
 
 DEED OF COMPOSITION. 
 
 who to sue in case of, 10, 11. 
 
 DEFECT OF FENCES, (see title Fences) 
 who to be sued for, 71. 77- 
 case for not repairing of, 143, 4. 
 
 declaration in, 369, 370. 
 plea in bar of, in replevin, 562. 
 in trespass, 495. 
 replication to plea of, in ti-espass, 5(37, 8. 
 
 DEFENCE. 
 
 defined, 412. 
 
 statement of it in a plea, 410. 414. 
 
 Vof., r. [ 63 ]
 
 ^^ INDEX 
 
 DEFENCE— (con</-«i/a/.) 
 
 statement of — {continued.) 
 form of, 410 to 414. 
 when necessary, 411, 12, 13. 
 half defence and when jiroper, 413. 
 full defence and when proper, 413, 14. 
 what proper in a plea in abatement, 449. 
 
 in bar, 530. 
 defect of how to be objected to, 449. 
 
 DEFENDANTS. 
 
 who to be, (see title Parties.) 
 
 several, (see titles Several Defendants and Pleas) 
 
 DE INJURIA ABSQUE TALI CAUSA, (see titles Replications tunei Traverse.) 
 when proper in an action on the case, 559. 
 not proper in replevin, 560. 161. 
 when proper or not in trespass, 562 to 570. 578. 
 when in the plural to several pleas by several defendants, 574. 
 when sufficient to a i)lea under ])rocess of courts of record, 577- 
 efiect of it, compels defendant to prove his whole plea, 578. 
 when allowed or not in general, 578 to 585. 
 when not advisable, 584. 
 form ot it, 585. 
 how to be objected to, 585. 
 
 DE INJURIA ABSQUE RESIDUO CAUSA, (see title Replication.) 
 when necessary or proper, 581 to 585. 
 
 DELIVERY OF DEED, (see titles Escroii:, Deed.) 
 not necessary to be stated, 348. 
 plea that it was delivered as an escrow, 479. 
 
 DEMISE. 
 
 plea of giving colour, 500, 1. 
 replications denying it, 567. 
 
 shewing i determined, 567. 
 
 DEMURRERS, 
 
 defined, 639. 
 
 to pleas to jurisdiction, 
 
 lo pleading in abatement, 
 
 to a plea in abatement need not be special, 456. 
 
 form of where plea is properly in abatement, ib. 
 bow mistake aided, ib. 
 
 form of where plea concludes, &c. in bar, 457. 
 to a replication in abatement, &C. 456. 
 joinder in demurrer, 456, 7. 
 
 on argument no advantage can be taken of defects in declaration, 457. 
 judgment on, 
 
 for plaintifT, 457. 
 for defendant, 457. 
 costs, 458. 
 
 To DECLARATIONS, PLEAS IN BAR, REPLICA TIONS, &C. 
 
 defined, 639. 
 general rules, 
 
 when advisable to demur though defective in substance, 639. 
 
 special doniurrt r for want of form why permitted, 639. 
 
 genera) what, 639. 
 
 when proper and sufficient, 639 
 
 special when necessary or advisable, 639-
 
 INDEX. 67^ 
 
 DEMURRERS— (co«</n«ef/.) 
 
 To DECLARATIONS, PLEAS IN' BAR, REPLICATIONS, &C. {continued.) 
 
 •when not necessary at common law, 640. 
 operation of the statute, 27 Eliz. c. 5. 640. 
 operation of the statute, 4 Ann. c. 16. 641, 
 to a part or whole, 643. 
 
 of u declaration or count, 643. 
 
 when only to demur to part of declaration, 643. 
 may demur to the whole in case of misjoinder, 643. 
 of a plea, avowry, or replication, &c. 
 
 should demur to the whole, 643. 
 exception in a pica of set-ott", 643. 
 in general the ohjecttonmust appear on the face of pleadings, 644. 
 when it need not, 644. 287, 8. 
 how to be shewn by oyer, &c. 644. 
 insufficiency of bail-bond, 644. 
 
 usury, &.C. must be pleaded though it appear on the face of 
 the deed, 644. 
 form of demurrer, 
 
 no precise form essential, and though informal sufficient, 644. 
 no demurrer to a demurrer, 645. 
 
 usual form of demurrer to a declaration or count, &c. 645. 
 to a plea in abatement, 645. 7. 
 to a replication, &.c. 645. 
 usual form of a special demurrer, 645, 6. 
 
 must particularize the objection and how, 645. 
 conclusion of, 64G, 7. 
 ON ARGUMENT OF DEMURRER, judgment will be against party whose first 
 pleading was bad in substance, 647. 
 init on demurrer to a plea on abatement defendant cannot object to de- 
 
 ckration, 647- 
 rule only applies to defects in substance, 647. 
 
 JOINDER IN DEMUUUER, 
 
 when the phiintiff may add it, 628. 
 ibrm of it, 647, 8. 
 
 to a demurrer to a declaration, 648. 
 
 to a (It-nmrrer to a plea in abatement, 648. 
 
 to a demurrer to a replication to a plea in abatement, &c. 648. 
 If judgment against plaintiff, when he may commence afresh action. 195. 
 
 DENIAL, (see title Traverse.) 
 
 DEPARTURE, 
 
 delincd, 618, 19. 
 
 Aviien objected to, 619. 
 
 a new assiij^nnurnt not a departure and why, 601, 2. 
 
 objectionable in a repliration, 618. 
 
 what amoimts to it, 619, 20. 
 
 objectionable in a rejoinder and instances, 620, 1. 
 
 to avoid it must plead all defences in first instance, 504, 5- 
 
 what supports the declaration or plea not a departure; 621, 2. 
 
 a variation in imaiaterial matter, not a departure, 622, 3. 
 
 how to be objected to, 623. 
 
 DE SON TORT DEMESNE, (see title Be Injuria.) 
 
 DEVASTAVIT. 
 
 declaration against executor suggesting it, 344.
 
 67-6 INDEX. 
 
 DEVISEE, (see titles Parties, Assignees and Heirs.) 
 
 when be may sue or be sued upon a conlracl, 11. 14. 35. 39 HI 
 vhen covenant does not lie aj^ainst him, 30. 
 when he may sue or be sued for a tort, 55. 77 ■ 
 infant devisee cannot pray the parol to demur, .39. 
 pleas by, 485. 
 
 DETINUE, action of, 
 
 parties to it, (see title Parties.) 
 
 only remedy to recover a cliattel specifically, \\7. 
 
 1. what thing- may be recovered by it, 117- 
 
 2. what proijerty tlie plaintiff nuist liave, 118. 
 
 3. for what taking or detention it is sustainable and against whom, 119, 2C. 
 
 4. the pleadhigs, verdict and judgment in general, IJOto 122 
 declaration in how to describe the s^iiods and jjlainliit 's property, 36;). 5. 
 pleas in, 484. 
 
 DILAPIDATIONS, (see titles Waste, Landlord and Tenant.) 
 
 action for ai suit of succeeding- rector on custom of realm, 142. 
 action for, 80. 
 
 DILATORY PLEAS, (see titles Sham Pleas, Abatement, and Pleas in Bar.) 
 wlien affidavit of truth necessary, 452. 
 
 BJSTRESS. 
 
 remedy for illegal distress, 90, 1. 99. 139, 40. 
 when trespass lies or not, 169. ISO- 
 justifications imder wlien to be pleaded, 
 
 for rent when need not be]ileaded in trespass, 493, 4. 
 
 but when advisable, ib. 
 for tolls must be pleaded, 494. 
 damage-feasant must be pleaded, 494. 
 •when distress not advisable, 146. 
 
 DISTURBANCE. 
 
 of rights of common, ways, 8tc. 143. 
 declaration for, Stc. 367, 8. 
 
 DIVISION. 
 
 of England, what taken notice of by the courts, 222. 
 of pleading, 243, 4. 
 
 DOGS, (see title Animals.) 
 
 liabiUty for keeping of when mischievous, 69 to 71. 
 
 form of action for, 136. 
 
 scienter when necessary to be proved or not, 2,76. 
 
 DRUNKENNESS. 
 
 may be given io evidence in assumpsit under general issue, 470 
 in debt, 479. 
 
 DUPLICITY. 
 
 in pleading in general, when objectionable, 230. 
 
 ■when may have several counts, 390. 
 
 in a plea in abatement, 446, 7. 
 
 in a j)lea in bar, (see title Picas in Bar,) 511, 
 
 oi;!y tlic ground of special demurrer, 513.
 
 INDEX. ^^'" 
 
 DURESS. 
 
 may be given in evidence in assumpsit under general issxie, 47q 
 must be pleaded specially in debt, 479. 
 rci)lication to plea of, 555. 
 
 EASEMENTS. 
 
 right to must be pleaded specially in trespass, 49.). 
 
 ECCLESIASTICAL LAW. 
 
 when it need not be stated in pleading', 220. 
 
 EJECTMENT. 
 
 general nature of the action, 188. 
 ibr what reul|)ropei-ty it lies, 188. 
 what title necessary, 189. 
 
 what right of entry requisite, 189. 191. 
 
 lessor of plaintitTto recover on strength of his own legal title, 189. 
 exception to this rule on ground of estoppel, kc. 190, 1 
 
 actu.al entry when not necessary, 191, 2. 177. 
 what ou.ster must be ]U-oved, 192. 
 pleadings, damages, costs and judgments in, in general, 192, •*■ 
 
 pleas in, 497. 
 
 ELECTION of form of action or remedv, 
 
 when tlie phiintitt' may have trespass or case, 127, 8. 
 general rules and choice how far aflected by, 207. 
 
 1st. tlie nature of the plaintifi's right, 207, 8. 
 
 2dly. security of bail in the action and the process, 209. 
 
 Sdly. the number of the parties, 209, 10. 
 
 4tidy. the number of the causes of action and joinder thei'cof, 21&- 
 
 othly. the nature of the defence and plea, 211. 
 
 6thly. the venue, 212. 
 
 7thly. the evidence, 213. 
 
 8thly. the costs, 213. 
 
 9thly. tlie judgment and execution, 215. 
 
 lOth'lybail in error, 214. 
 consequences of election of remedy, 214. 
 
 ENTRY. 
 
 when essential in trespass, 176, 7. 
 
 to avoid a fine, 177. 191, 2- 
 when not essential in ejectment, 191, 2. 
 of lessee, statement of it, 352. 
 
 EQUITY. 
 
 matter of defence in, when not pleadable, 459, 66 
 
 EQUITY OF REDEMPTION. 
 
 not assets to charge heir or devisee at law, 39. 
 
 ESCAPE. 
 
 remedy for, if on mesne process, case, 140, 1. 
 
 if on final process, debt or case, 140, 1- 
 plea to action for, 488, 9. 
 
 aflTidavit of truth of, 488. 
 replications in action for, 559, 60. 
 new assignments in, when proper, 603. 
 
 ESCROW. 
 
 deliverv of a deed as such n^ed not but may be pleaded, 47-'
 
 &7& INDEX. 
 
 ESTATE, (see 7h!c.) ' 
 
 ESTOPPEL. 
 
 •when a party is estopped, 575. 
 ■when a l")rnicr judgrnent iiot an estopnel, 19J. 
 when by defendunl's appearancf, 454 
 pleadings of, ivquire what accuracy, 238. 
 plea of, 459. 
 
 matter of est<'.ppel must be relied on in conclusion, 540. 
 replications, form of, 
 
 commencement of it, 57o. 
 body of it, 575, 6. 
 
 conclusion to rely on estoppel, 616, 17. 
 demurrer in respect of it, 575, 6. 
 
 EXCOMMUNICATION. 
 
 of pl.iintiO", plea of in ab.itement, 436 
 how the plea concludes, 450, 1. 
 puis darrein continuance, 635. 
 
 EXCUSE. 
 
 matter in excuse of performance l)ovv to be stated by plalntift', J17, 18. 
 pleas in excuse of trespass, 495. 
 
 EXECUTOR. 
 
 when to sue or be sued and bow, (see title Parties.) 
 wlien he cannot sue on a contract, 4. 11 to 14. 
 when he may sue and how, 12, 13, 14. 
 in case of liusband and wife executor, 21. 2. 
 
 when lie may sue for a tort, ( .see title Jctio Ftnonalii, &c-) 56 to 59. 
 in replevin, 159. 
 in trespass, 167. 
 of suing' one of several executors, 33. 
 against husband and ^\lfe executor, 39. 
 when lie maybe sued for a tort, 77 to SO. 
 not on a penal statute, 39. 
 • when not liable to pay costs and why, 203- 
 ■joinder in action by and against, (see title joinder,) 202 to 206. 
 wJien he should sue or be sued as sucii, 202 to 206. 
 declarations in actions by or against, 
 
 at suit of an executor in debt, &c. 291. 344. 
 , against an executor de son torf, <kc. 291. 
 
 declaration by or against to take care out of statute limitation.''., 343. 392. 
 declaration again.sV suggesting a devastavit, 344. 
 against for rent, 353. 
 pleas in actions by or against, 484, 5- 
 
 several executors may join in jjlea and consequence, 545, 6. 
 in actions by or against in gcnei-al, 557, 8. 
 replications taking judgment of assets quando, 8^c. 548. 
 de son tort how lie may reply, 623. 
 how to reply to plea of judgments outstanding, 625. 
 
 FACTOR, (sec titles Agent, Bailee.) 
 when he may sue on contract, 5. 
 when may sue for injuries to personal property in his possession, 48 
 
 FALSE AND FALSELY. 
 
 when equivalent to the word maliciously, 235. 
 
 FALSE CHARACTER, (see title Deceit.) 
 what the proper remedy for, 159. 
 
 <
 
 INDEX. 679 
 
 FALSE PLEA, (see title Pleas in Bar.) 
 
 consequence of" its so appearing, 420. 
 
 FALSE RETURN. 
 
 remedy for, 140, 1. 
 
 FEME COVERT, (see title Baron and Feme and Coverture.) 
 
 FE NCES, (see title Defect of Fences.) 
 
 defect of who to be sued for, 71. 77. 
 remedies for, 142, 3, 4. 
 declaration for, 369, 70- 
 
 plea in bar of defect of fences in replevin, 562. 
 plea in trespass, 495. 
 replication to plea of in trespass, 567, 8. 
 
 FEOFFMENT, 
 
 how to be pleaded, 226. 349. 
 
 FERRIES. 
 
 declarations for injuries to, 368. 
 
 FICTIONS OF LAW. 
 
 how far used in pleading, 229, 30. 
 
 FICTITIOUS PLAINTIFF OR DEFENDANT. 
 plea of, 435. 441. 
 
 FINDING. 
 
 allegation of, in trover not material or traversable, 147". 
 
 FINE. 
 
 covenant on the warranty in, wife may be sued on, 43. 
 
 FISH AND FISHERY. 
 
 when case or trespass the proper remedy for injuries to, 160. \75. 
 right to fish in arm of the sea, intended by law,' 587- 
 new assignment relating to it, 607, 8. 
 
 FIXTURES, (see titles Freehold, Trees.) 
 
 FORCE AND FORCIBLE INJURY, (see titles Vi ct Armis, Contra Pace?n.y 
 what so considered in law and \\'h;<t not 122 to 125. 
 actual and how to be described, 125. 162. 
 implied, and how to be described, 122 to 125.16?. 
 when not to be stated in a plea, 486. 
 
 FOREIGN ATTACHMENT. 
 
 may be s^iven in evidence in assumpsit, 472. 
 
 must be pleaded in an action upon a specialty, 480 
 
 FOREIGN LAWS. 
 
 when to be pleaded, 221. 
 
 FOREIGN PLEA, 
 what, 429. 
 affidavit of truth of, 452. 
 
 FORM OF ACTION, (see title Action.) 
 
 misconceived ple.i of, .und consequences; 44 J ^
 
 680 INDEX. 
 
 FORM OF PLEADING, (sec title Fk-ading.^ 
 when no precise words necessary, 235, 6. 
 ought to be observed when applicable and wliy, 235, 6. 85, 6. 
 
 FORMER RECOVERY. 
 
 may be given in evidence in assumpsit under general issue, ^72- 
 
 in case under general issue, 486. 
 must be pleaded in trespass, 486. 496. 
 replications to plea of, 553. 
 new assignment to, 603. 
 
 FRAUD. 
 
 plea or replication of, when need not state the particulars, 553. 
 
 FRAUDS, Statute of, 
 
 need not but may be pleaded in assumpsit, 470, 1. 
 
 statement of observance of requisites of, when necessary or not, 23/ 
 
 FREEHOLD. 
 
 when trover will lie for an injury to, (see title Trees,} 158. 
 when replevin will not lie, 158. 
 
 FREEHOLDER. 
 
 when to prescribe, 561. 
 
 FREIGHT. 
 
 who may sue for it, 5. 
 who may be sued for it, 35. 
 
 GJAME. 
 
 property therein, and remedies relating to, 166 
 
 GAMING. 
 
 may be given in evidence in assumpsit, 470- 
 must be pleaded in an action on a deed, 479. 
 replication to plea of in assumpsit, 552. 
 in debt, 555. 
 
 GAVELKIND. 
 
 customs when not to be stated In pleading, 220. 
 
 GENERAL CUSTOMS. 
 
 need not nor should be stated in pleading, 219, 20. 293. 
 
 GENERAL ISSUE, (see title Pleas in Bar, and each particular action.) 
 general observations relating to, 465 to 468 
 special plea amounting to, how to be objected to, 497, 8. 
 
 GOODS. 
 
 how to be described in pleading, 260. 363. 
 
 G^ODS SOLD. 
 
 assumpsit for, &c. when common count proper or not, 338, 9. 
 when the declaration must be special, 339. 
 
 GUARANTY. 
 
 assumpsit upon to be special, 339. 
 
 GUARDIAN, 
 
 wliento declare by, 291. 
 ■vhen to plead by, 449.
 
 INDEX. 681 
 
 HAD AND RECEIVED, MONEY. 
 
 assumpsit or debt for when it lies, 90, 1. 
 
 when for money obtained wrong'fally, 90, 1. 
 when not for money obtained under :i distress, 90, 1. 99. 
 when it lies in g'eneral, 340, 1, 2. 
 count for in general, 340 to 342. 
 HEALTH. 
 
 remedy for injuries to, 124. 137. 
 
 HEIR, (see title Parties.) 
 when to sue, 14. 
 when to be sued, 39, 40. 
 when he may sue for a tort, 54. 
 
 when not before actual entry, 177. 
 when he may be sued in assumpsit, 96. 
 
 in debt, 103. 
 how to declare in action on a lease, &c- 347. 
 how to declare at suit of, 352. 
 
 against, 353. 
 pleas by, 485, 6. 
 replication in actions against, 559. 
 
 HERIOT. 
 
 when a general avowry for is or is not sufficient, 491. 
 
 HIGHER SECURITY, (see title Deed.) 
 
 taking of when a bai- to an action of assumpsit, 94 to 97. 
 
 HIGHWAY ACT. 
 
 parties acting under, when may plead general issue, 495. 
 
 HUE AND CRY. 
 
 remedy on statute, 144- 
 
 case for not receiving examination, 137. 
 
 HUSBAND AND WIFE, (see title Baron and Femr, and Partkt.) 
 
 IDIOT. 
 
 who to plead by, 529. 
 
 ILLEGALITY IN CONSIDERATION OR CONTRACT. 
 
 may be given in evidence in assumpsit under general issue, -176. 
 must be pleaded in an action on a specialty, 479. 
 rephcationto plea of in assumpsit, 552. 
 in debt, 555. 
 
 IMMATERIAL ISSUE, (see titles /;««?, Repleader.) 
 
 IMMATERIAL TRAVERSE, (see titles i?e;>//caf/oHff, Traverse and P/-p!eaJer.) 
 
 IMMEDIATE INJURIES. 
 
 what so considered and remedies, 125 to 128. 
 
 IMPARLANCES. 
 
 defined, 420, 1. 
 
 when usual or proper In an issue, 420, 1. 
 
 a plea, 420 to 424. 
 several sorts, 
 
 general imparlance, its nature, use, &c. 421, 2. 
 special imparlance, its nature, &c. 422, 3. 
 general special imparlance, its nature, Sec. 423, 4. 
 Vol.. I. [ 64 3
 
 G82 INDEX. 
 
 JMPAH L \NCES— (continued.) 
 
 ai luail oi' a replication when proper, 570. 
 at head of a plea in abatement, 447. 
 consequences of mistake, 448. 
 
 INCORPOREAL PROPERTY. 
 
 remedy for injuries to, 143. 
 when ejectment don't lie, 188- 
 
 INDEBITATUS COUNT. 
 
 in assumpsit, general use of, 333 to 345. 
 
 form of, 334, 5. 
 in debt, 345. 
 
 INDENTURE, (see title Deed.) 
 
 INDUCEMENT, (see title Assumpsit.) 
 nature ot' in a declaration, 
 in assumpsit, 292. 
 
 its utility, 292. 295. 
 form and requisites of, 293, 4. 
 in debt or covenant, 347. 
 in case for slander, 365. 381. 
 in a replication containing a traverse, 595, 
 
 INFANT AND INFANCY. 
 
 executor or administrator when he may sue or be sued, 13, 14. 39. 
 when liable to be sued for a tort, 65. 
 declaration by, foi-m of, 291. 
 
 ag-ainst account staged, don't !ie, 343. 
 plea of must be by guardian, 412. 449. 
 
 in abatement, 438. 
 infancy need not be pleaded in assumpsit, 470. 
 
 "but may be pleaded, which is preferable, 474, 5. 
 
 must be pleaded in debt, &.C. on a specialty, 479, 
 
 of plaintiti", 436. 
 
 of defendant, 438. 
 replication to a plea of, different sorts, 551. 
 
 of infancy to a plea in abatement, 32. 
 
 INFERIOR COURT, (see titles Courts &nd yurisdktion.) 
 pleas of their jurisdiction, 427, 8. 
 want of jurisdiction how to be objected to, 428^ 
 
 INFORMER, (see title Penal Statute.) 
 
 INHABITANTS OF A COUNTY, 
 when not liable to be sued, 66. 
 
 INJURIES EX DELICTO, 
 
 nature of and distinctions between considered, 122 toJ33. 
 how to be stated, 380 to 385. 
 
 INNKEEPER. 
 
 when liable to be sued, 69. 
 remedy against, 139. 
 
 INNUENDO. 
 
 use of and when necessary, 382, 3. 
 
 INSOLVENT DEBTOR. 
 
 assignees of when to sue, 16. 
 when to be sued, 42.
 
 INDEX. 683 
 
 INSOLVENT DEBTOR. 
 
 de en ;e of must be pleaded, 478. 
 replication to, 552. 
 
 taking- judgment of assets in future, &c. 548, 
 
 INTENT. 
 
 wlicn it does not affect the form of action, 129. 
 wlien to be alleg-ed in pleading-, 376 to 380. 
 how to be stated, 379. 
 
 INTEREST. 
 
 when recoverable in assumpsit, 91. 
 
 wlien not on count for money had and received, 342. 
 
 in debt, count for lies, 102. 
 
 INTER P,\RTES. 
 
 when a person not party to a deed cannot sue, 4, 5. 
 
 ISSLJABLE PLEAS. 
 
 defined, and when they only can be pleaded, 505, C. 
 
 ISSUE, (see title Repleader.) 
 defined, 629, 630. 
 
 must be single, but may put in issue several facts, 577 631. 
 should be on an affirm-.'.ttve and nejjalive and exceptions, 630. 
 should be on a material point, 631, 2. 
 
 consequences of an immatt-rial issue, 631, 2. 
 immaterial issue defined, 631. 
 an informal issue aided by verdict, but not an immaterial one, 631, 2. 
 exceptions, 631, 2. 
 
 JOINDER IN ACTIONS. 
 
 of plaintiffs and defendants, (see title Parties.) 
 
 of f )rms )f action, 
 
 several causes of .action which mayor ought to be joined, 196. 
 
 of forms of action, 
 
 general rules as to joinder, 196, 7. 
 
 what actions ex contractu may be joined, 197. 
 
 wliat actions ex delicto may be joined, 198. 
 
 actions ex contractu with those ex delicto when can't be joined, 199. 
 
 wh-it actions of different forms mav be joined, 199. 
 
 misjoinder wlien no objection in crim-nal proce-'dings, 199. 
 of rights of action or liabilities, (see title Declaration.) 
 general rule, 200 
 
 by and against a surviving partner, 200. 
 
 by and against husband and wife, 201. 
 by assignees of a bankrupt, 201 
 
 by and agiinst executors and administrators, 202 to 206. 
 consequences of misjoinder, 206, 7. 
 of several counts, and misjoinders, (see title i)ec/araf/on,) 390 to 397 
 
 JOINDER IN DEMURRER, (see title Demurrer) 
 
 JOINT-TEN aNTS, (see titles Parties and Tenants in Common.) 
 must join in an act:i)n when plaintiffs, 10. 
 in a replevin, 159. 
 in an avowry or cognisance, 543. 
 when they ma} be sued, 66. 
 can't sue each other in trover or trespass, 155, G. 170. 172. ISO. 
 
 JUDGE, 
 
 party acting as, -when not livable to be sned, 6S, 6 T. R. 449, 450.
 
 684 INDEX, 
 
 JUDGMENTS, 
 
 in diilerent actions, (see each particular action.) 
 
 on pleadings in abatement, (see titles Abatement and Deinurrer,) 445, 6. 457,8. 
 
 on pleas to jurisdiction, 434. 
 
 actions upon, how restrained, 103, 4. 
 
 declarations ujjon, 354 to 356. 
 
 plea of judijinent recovered, &c. (see title Former Recovery.) 
 
 JURISDICTION, (see title Venue.) 
 pleas relating to, 
 
 distuiction between a plea to and a claim of conusance, 403. 
 must be in person »nd not by attorney, 412. 449. 
 how to be entitled, 424. 
 
 want of jurisdiction when an objection on g-eneral issue, 426. n. (b). 
 distinction between them and pleas in abaternent, 427. 
 when olyection to jurisdiction to be pleaded, 427. 
 injuries out of tiie realm, 427. 
 
 when the defendant may plead to jurisdiction, 429 to 432. 
 how to frame the plea and proceed, 431, 2, 3. 
 how to conclude plea, 450. 
 affidavit of truth, 433. 
 replications, 2v.c. relating to, 
 how to replj', 433. 
 demurrer to plea, 434. 
 judgment upon, 434. 
 
 JUS POSTLIMINII. 
 
 our law when similar, 177. 
 
 JUSTICES OF THE PEACE. 
 
 remedy against when trespass, 137. 
 
 when case, 144, 5. 
 may plead general issue, 496. 
 
 KING. ,. , ,. 
 
 what matters relating to need not be stated in pleading, 217. 
 
 LANDLORD AND TENANT, (see titles Covenant, Case, Jient, C'c) 
 how to sue, 93. 
 
 action by, against sheriff for not pajing year's rent, 144. [36. 40 
 
 when lessee is liable to be sued and how notwithstanding assignment, 34. 
 under lessee, when not liable, 36. 
 
 LAW. 
 
 matter of not traversable, 587 . 
 
 LEAVE OF THE COURT. 
 
 whether to be stated in a declaration, 331. 
 should be stated in a second plea, &.c. 542, 3 
 
 LEGACY, 
 
 when recoverable at law, 91. 
 
 when legatee may support trespass, &.c. 167- 
 
 LEGAL LIABILITY, 
 
 assumpsit upcni it, 91, 2, 3. 
 debt upon it, 102. 
 
 statement of the consideration in pleading, ^95. 
 the promise to be alleged, 299. 
 
 LEGAL OPERATION. 
 
 facts to be stated according to, in a declaration, 302. 351. 
 in a plea, 518. 351, 2.
 
 INDEX. 685 
 
 LESSEE, (see title Landlord and Tenant.) 
 
 LIBEL, (see titles Slander, Case, Innuendo.) 
 action for lies against two, 73. 
 
 LIBERUM TENEMENTUM, plea of, 
 
 when advisable to plead it in t- espass, 494, 5. 
 
 may be given in evidence under general issue, 494, 5. 
 
 replication to, 
 
 1. denying defendant's title, 565. 
 
 2. stating a demise from defendant, 566. 
 
 3. stating a title before the defendant's, ib. 
 
 4. new assigning the trespasses, ib. 
 
 when necessary (see title Wew Assignments,) 606, 7- 
 
 LICENSE, 
 
 must be pleaded in trespass, 495. 
 replication denying it, 56". 
 
 stating a revocation, &c. 567. 606. 
 
 LIMITATIONS, Statute of. 
 
 actions within what time to be brought, 
 
 assumpsit, six years, 473. 
 
 debt on simple contract, six years, 476. 
 
 on specialties, no limitation, but payment presumed after twenty 
 
 covenant, no limitation, [years, 480.. 
 
 case, (except for verbal slander,) six years, 490. 
 criminal conversation, six years, 490. 
 verbal slander, if actionable in itself, two years 490. ■ 
 
 trover, six years, 490. 
 
 trespass to personal and real properly, six years, 496. 
 to persons, four years, 496. 
 
 ejectment within tuenty years after adverse possession, 191. 
 declaration by or against executors, &c. to admit of evidence to take ca'se 
 
 of statute, 2U4, 5. 343. 
 plea of, m.ustbe pleaded in assumpsit, 472- 
 
 should be pleaded in debt on simple contract, 476. 
 
 in debt, on specialty plea of solvit ad or post diem, 480. 
 
 in an action on the case, &c. 490. 
 
 in trover, 498. 
 
 in trespass, 490. 
 
 when plea to be qualified to part of declaration, .523. 
 
 how to be pleaded, (see forms vol. 2.) 
 replications to, wliat proper, 554. 
 
 in case of a bill or note, 622, 3. 
 
 iri trespass, 569. 576. 
 
 if bad in part Is bad for the whole, 618. 
 
 of the statute to a plea of set-off". 555. 
 
 LORDS' ACT. 
 
 actions in case of, 42. 
 
 discharge under a bar to debt on the judgment, 481. 
 
 LUNACY. 
 
 when Itmatic liable, 65. 
 to be pleaded by attorney, 529. 
 
 lunacy may be given in evidrnce» or pleaded in assumpsit, 470. 474. 
 in debt on specialty, 479. 
 
 MALFEASANCE, 
 defined, 154.
 
 686 INDEX. 
 
 MALICIOUS PROSECUTION, 
 
 of a civil or criminal cliai-ge, when case is the remedy,136, 7. 167. 
 when trespass is proper, 136, 7. 185 to 187. 
 
 MARGIN, 
 
 venue in, (see title Venue,) 267. 
 
 MARINE LAW, 
 
 when it need not be stated in pleading, 220. 
 
 MASTER AND SERVANT, (see titles Parties, Agent, Factor, Servant.) 
 
 when the master or the servant shoidd sue for the battery, Sec. of sei'vant, 47. 
 when a servant cannot sue, 48. 
 wlien the master is liable in case, 68, 
 
 in trespass, 181- 
 remedy by master for debauching- or beating servant, 47. 
 
 bj' action on the case, 1,38. 
 
 of trespass, 165, 2 New Rep. 476. 
 declaration against master for negligence of servant, 381. 
 
 MESNE PROFITS. 
 
 trespass for, wlicn advisable and proper, 188, 193. 
 
 MILITIA ACT. 
 
 venue in actions against officers acting under, 279. 
 officers may plead general issue, 4y6. 
 
 MISCHIEVOUS ANIMALS, (see titles Animals, Cattle, Dogs.) 
 when trespass or case for, 69, 70. 136. 
 
 MISFEASANCE, 
 defined, 134. 
 
 MISJOINDER, (see titles Parties, Actiun, joinder.) 
 
 det'endajit may plead it in abatement, but nov/ more usual to demur, 444. 
 
 defendant may demur to the whole declaration in case of, 444. 
 
 if there be a denmrrer for it, a nolle prosequi cannot be entered, 548. 
 
 MISNOMER, (see titles Jdate^neiit and Na7nes.) 
 in writ, trespass for, 185. 
 
 how aidefl by declaration or otherwise, 249, 250, 1. 256, 7. 
 
 in plaintiff's name and how aided, 440, I. 
 
 in diifendant's name and ho%v aided, 440. 1, 
 plea of, how to begin, 411, 12 448.451. 
 
 whether to be pleaded in person or by attorney, 449- 
 
 must state christian and surname, 445. 
 
 may plead both mistake in christian and sui'name in one plea, 447. 
 
 how plea concludes, 451. 
 replication, &.c, to, 
 
 when plaintifT may amend or enter a cassetur, 454. 
 
 replication of estoppel by defendant's appearance, 454. 
 
 how to conclude, 454, 5. [<^'''^0 
 
 qualities and forms of these pleadings, (see titles Abatement, Replication, 
 
 MODERATE CORRECTION, 
 
 plea of, 492. 
 
 replication to, shewing excessive battery, 605. 
 
 MODO ET FORMA. 
 
 what is put iu issue by these words in a plea, 463', 47C. 
 
 in a replication, 59&.
 
 INDEX. 687 
 
 MOLLTTER MANUS IMPOSUIT, (see title Trespass.) 
 plea of to preserve the peace, 492. 
 when not advisable to plead specially, 503, 4. 
 
 MONEY COUNTS. 
 
 when projjer, 340 to 343. 
 
 forms of. 334 to 336 
 
 had and received, when it lies, 341, 2. 
 
 MONEY HAD AND RECEIVFD, (see title Had and Received.) 
 when assumpsit lies for money, 90, 1. 99. 341, 2. 
 when trover lies for it, 149. 
 
 MOTIVE, (see title Jnterit.) 
 
 MUTUAL CONDITIONS. 
 
 nature and effect of, 309. 
 
 NAMES, (see title Misnomer.) 
 
 not necessary to repeat them ; mav say, •' the said plaintiffs," or " defend- 
 ants," &c. 256. 
 of third persons, how to be stated, &c. 257". 
 consequences of mistake in placing' of it, ^57. 
 
 NEGATIVE PREGNANT. 
 
 instances of, (see title Traverse,) 518, 19 
 what amounts to, in a traverse, 586, 7. 
 
 NE UNQUES EXECUTOR OR ADMINISTRATOR, 
 plea of, 484, 5. 
 replication to it, 557' 
 
 NEW ASSIGNMENTS. 
 
 distinction between it and a replication, 601. 
 
 and a departure, 601, 2. 
 nature and use of it, to avoid an evasive plea, he- €01, 2. 
 what matters may be new assigned, 602. 
 must be consistent with the declaration, 602. 612- 
 wlicn the plaintiff" may traverse the plea and also new assign, 60-. 
 wlien the plaintiff^ should merely new assit;'n, 602. 
 in what cases it may be made and is necessary, 
 in actions ex contractu, 602, 3. 
 not in replevin, 602. 
 in actions on the case, 603. 
 in trespass to persons, 604. 
 
 to personal pr'iperty, 605. 
 to real property, 606 to 610. 
 replications in the nature of, 609. 
 costs relating- to, 609. 
 forms of, two modes of introducing' tlie matter new assigned, 610. 
 
 1. where tlie phiintiff" denies the plea and also new assigns, 610. 
 2 where the plaintiffT merely new assigns, 610. 
 body of and retpiisites as to certainty, &c. 611. 
 
 must sliew the other trespasses or matter complained of, ib. 
 when the new assignment relates to j^lace, 611. 
 
 to time. See. 611. 
 must be of matrrial matter, 612. 
 must be of similar trespasses us in declaration, 612. 
 
 as those pleaded to, 612.
 
 688 INDEX. 
 
 NEW ASSIGNMENT— (rof/«!/e(/.) 
 conclusion of, 612. 
 
 prayer of jiirlg'ment unnecessary, 613. 
 pleas upon new assig-nment, 613. 
 
 defendant miiy plead precisely as to a declaration, 61S. 
 
 may plead double, 61.3. 
 not necessary to plead de novo what was covered by the plea, 613, 14. 
 can't plead that the trespasses are the same, &c. 614. 
 I'eplications to pleas to new assignment, 614. 
 
 NIL DEBET, (see title Debt, Pleas in.) 
 
 when a proper plea in debt, 476, 7, 3. 
 
 an improper plea in assumpsit, and plaintiff may sign judgment, 507. 
 
 when best to demur, 507. 
 
 NIL HA.BUIT, (see t\i\e Estoppel.) 
 
 whon no plea, 347, 8. 477. 575. 
 in replevin, bad, 561. 
 replication or demurrer to it, 575. 
 
 NOLLE PROSEQUI. 
 
 when it m.ny or not be entered against one of several defendants, 32, 3- 546. 
 when it may be entered to part or whole of cause of action, 548. {|548. 
 
 not in case of misjoinder, after demurrer, 548. 
 
 NON ASSUMPSIT, (see title Assumpsit, Pleas in.) 
 
 an improper plea in debt, and plaintiff may sign judgment, 507. 
 
 NON CEPIT, (see title Replevin, Pleas in.) 
 what it puts in issue, 490. 159. 
 avowry or cognisance for a return, 490. 
 when not proper, 491. 
 
 NON DAMNIFICATUS. 
 
 when a good plea^ 480. 
 replication to it, 556. 
 
 NON DETlNET. 
 
 when a Jsroper plea in debt, 476. 
 
 in detinue, 484. 
 
 NON EST FACTUM, (see title Dedt, Covenant, Pleas in.) 
 
 when proper and what may be given in evidence under it, 478, 9, 480- 
 
 NONFEASANCE, 
 defined, 134. 
 
 NON INFREGIT GONVENTIONEM- 
 a bad plea, 515. 
 
 NONJOINDER OF A PARTY, (see title Parties.) 
 when to be pleaded in abatement, 441, 2. 
 when the ground of nonsuit, 442. 
 of assignees or e'xecutors, ib. 
 when the plalntiiT cannot amend, 454. 
 how to be pleaded in abatement, 441. 
 
 NOT GUILTY, (see titles Caie, Trover, Trespass, and Debt, Pleas in.)
 
 INDEX. 
 
 NOTICE. 
 
 when the phiintifr or defenclaiit must aver it, 3VJ: 
 how to be alleg'etl, 322. 
 consequences ot" omission, 322. 
 
 NOVEL ASSIGNMENT, (see title Ke-.o Assignment.) 
 
 NUISANCE. 
 
 who may sue for it, 54, 5. 
 
 who may be suetl, 77. 
 
 remedy for when case or trespass, 136. 142. 
 
 NUL TIEL RECORD, {hcq ^\t\Q Debt, Picas in.) 
 when a proper plea, 480. 
 
 conchision of, 537. 
 replication to a plea statin.? a record, 55&, 7. 
 
 form of it, 571, 2.' 
 
 to a plea denying* a record, 5/2. 
 
 OFFICER, (see title Sheriff, Venue, C-c), 
 
 when liable to an action of ti'espass, S;c. 185, 6. 
 
 OFFICES. 
 
 declaration for disturbance of, 368. 
 
 ORDER OF PLEADING. -, 
 
 what to be observed and consequences of non-observance, 42o. 
 
 OUSTER. 
 
 what amounts to in general, 192. 
 
 in case of tenants In common, 180. 192. 
 
 OUTLAWRY. 
 
 title of declaration where one defendant has been Outlawed, 3&?', 
 
 form of declaration in case of, 290. 
 
 of plaintiff when to be pleaded, 436. 473. 635. 
 
 in abatement or bar, 435, 6. 
 two outlawries cannot be pleaded, 447- 
 
 ©NERARI NON. 
 
 when proper in a plea, 531, 
 
 OWNER OF SHIP. 
 
 when he may sue, 5. 
 
 when he may be sued, 23, 24. 
 
 OYER. 
 
 defined, 414. 
 
 form of cravinj^ it in a nlea, 410, 11. 
 
 when it may be craved, 414. 
 
 of a deed necessarily stated with a profert, 4l<. 
 
 not of a deed unnecessarilv stated, 415. 350. 
 
 notof the writ, 415. 249.438,9, 
 
 consequence of demanding, 439. 
 
 not of a deed not pleaded with a profert, 415. 
 when defect in craving of will be aided, 415. , 
 
 when oyer must be craved in order to demur, 8vC. 415, IS; 
 when proper, 416. 
 denial of oyer when error, 417- 
 bow to plead after it, 417. 
 when plaintifl" may pray an enrolment, 417 
 Vol. 1. ' [ ^5 3
 
 mo INIJEZ. 
 
 OYER- {coniinucd.) 
 
 how to entitle the plea in case of enrolment, 417, IS. 
 
 the whole of the deed to be set forth and consequence of not doing so, 418^ 
 
 how much of anotiier deed, 419. 
 
 when sufficient to crave oyer of, and state only condition of bond, 419, 20. 
 
 consequences of the deed being stated, 420. 
 
 PARCENERS. 
 
 when they ought to join as plaintiff's, 10. 
 how to be sued, 29. 
 avowries by, 543. 
 
 PARENT, 
 
 when he may sue for a tort to the person of his child, 47. 
 when advisable to proceed in name of the child, 47. 
 
 PARLIAMENT. 
 
 what matters relatingto need not be stated in pleading, 217- 
 
 PARTIES TO ACTIONS, 
 who to be, 
 general rule, 1. 
 
 IN ACTIBNS EX CONTRACTU, 1 tO 45. 
 
 Plaintiffs, who may or should be, 3 
 
 between ori^/wo/ parties, and with reference to their interest, 3 to 5,. 
 by consignee of goods, 3. 
 when a joint or seve: al covenant, 3, 4. 
 legal or beneficial interest, 3 to 5. 
 upon a deed inter partes, 4. 
 
 when by an agent, factor, broker, auctioneer, he. 5. 
 with reference to the number of plaintiffs, 5 to 10. 
 who must join or may sue severally, 5, 6. 
 nonjoinder of a plaintiff how to be objected to, 7, 8. 13. 
 w lu) may or canwot join, 8 to 10. 
 
 misjoinder of several plaintiffs how to be objected to, 8, 9. 
 when the interest in the contract has heen assigned, 10 to 11. 
 in the case of personal contracts assignor must sue, 10. 
 unless upon an express promise to assignee on new con; 
 
 sidcration, 10. 
 in case of covenant running with land, 11. 
 assignees of bankrupt or insolvent debtor, 11. 
 trustee under composition deed, 11. 
 when one of several partners, obligees, &.c. is dead, 11 to 12. 
 action must be in name of survivor, 11 to 12. 
 when in name of executor of deceased party, 12. 
 in case oi death of all partners covenantees, &.c. 12 to 15. 
 in case of a personal contract, 12 to 13. 
 
 must be brouglit by executor or administrator of 
 
 surviving partner, 8cc. 12. 
 all executors must join, 13. 
 nonjoinder Ivow to be objected to, 13. 
 what demands he may sue for as executor, 13, 14. 
 executor of executor may sue, 14.. 
 but not administrator of executor or executor of 
 
 administrator, 14. 
 not an infant executor, 14. 
 in case of a covenant running with land, 18. 14. 
 when by executor, heir or devisee, 13, 14. 
 in case of bankruptcy, 15, 16. 
 
 when assignees may sue and how, 15, 16.
 
 INDEX. cyi 
 
 PARTIES TO ACTIONS— (con//nm/.) 
 
 IN' ACTIONS EX CONTRACTU — (continued-) 
 
 Plaintiffs who to be — {continued ) ' 
 
 in case of bankruptcy — {continued.) 
 
 when they cannot sue, 15, 16. 11. 
 what demands they may sue for or join, 15, 16. 
 wlien the solvent partner must join, 15. 
 when the bankrupt may sue, 15, 16. 10. 
 in case of an insolvent debtor, 16, (in torts, 59) 
 in case oi' marriage, \7 to 23, (in torts, 6(J.) 
 
 wife cannot sue alone unless husband be transported, 17. 
 must join on contracts made before maiTiage, 17, 18. 
 or when wife is executrix, 18. 
 unless on express contract to husband on new con- 
 sideration, 18. 
 wife when she may join on personal contracts, 18, 19. 
 
 for rent, &c. of her land she may join, 19, 20. 
 if husband survive when he may sue, 20, 21. 
 if wife survive when she may sue, 21, 22. 
 consequences of mistake, 22. 
 Defendants who to be, 
 
 between the original parties and with reference to liability, 23. 
 captain of a troop, owner of a ship, he 22. 
 attorney or ag-ent wlien liable, 24, 5. 
 against partners, tenants in common, &c. 25. 
 with reference to number of defendants and who must be join- 
 ed, 28. 
 mode of taking advantage of omission, 29. 
 who may be joined, 31. 
 and consequences of objection, 
 general observations, 33 to 34. 
 Incase of change of credit and covenants running with the 
 
 land, 34. 
 where one of several obligors is dead, 37. 
 in case of executors, administrators, heirs and devisees, 37. 
 in case of bankruptcy, 40. 
 in case of insolvency, 42. 
 incase of marriage, 42 to 45. 
 
 iN ACTIONS EX DELICTO, 45 tO 83. 
 
 Plaintiffs who to be, 
 
 witii reference to the plaintiff's interest, 45, 
 must be legal ov/ner, 45, 6. 
 for injuries to the person, 46. 
 
 personal property, 48. 
 real property, 49. 
 with reference to the numlter of plaintiffs, 
 
 when they must or may join or sever, 51 to So. 
 consequences of too many or too few, 53, 4- 
 wliere tiie interest in the property lias been assigned, 54': 
 wlien one of several parties is dead, 55. 
 where a sole party injured is dead, 56 to 59. 
 in case of bankruptcy, 59. 
 in case of marriage, 60 to 65. 
 Defendants who to be, 
 
 who liable to be sued for torts, 63. 
 infants, 65- 
 feme coverts, 65. 
 corporations not, 65, 6. 
 a judge, &c. 66. 6 T R 449, SO. 
 inhabitants of a county, 66. 
 trustee, 66 
 
 joint-tenants and tenants in common, 66. 
 agents, 67. 69.
 
 <m INDEX. 
 
 PARTIES TO ACTIONS- (^contmued.) 
 
 IN ACTIONS -EX T>TiJ.icro— (continued.) 
 Dtfftndantx who to be — {continued) 
 
 >vho liable to be sued tor toi-ts — '^cont-inwd.") 
 master or prmci])ul, 6(>. 
 for animals, G?, ?(», 1, 2. 
 for real property 71. 
 who may be jointly sued and who r,oi, 
 
 and consequences of mistake, 73 to 77- 
 •where tlie interest in the land lias been a.ssiiriied, 77. 
 ill case of the deatl\ (jfthe wroiit^ doer, 77 
 
 in case of the bankruptcy or iiisoU'ency of tlic wronc: doci-, 80, 1. 
 in «5ase of marriag-e, 81, 2- 
 
 STATEMENT OF, WITH WHAV CERTAINTY IN A DECLAUATlO N, &.C. 256, 7- 
 
 PARTNERS, (see title Parties.) 
 
 when iliey must or need not sue jointly, 26, 7,8- 
 
 when they may sue each other, 25 to o-l-. 96. 'J8. 
 
 how t') sue in case of bankruptcy, 15. 
 
 ■when survivor may include a demand on his own rij^ht, 12. 
 
 wiien survivor need not state death of his pai'tner, 12- c>7. 
 
 covenant betwec-n, when of no avail asf'ainst a ci'editor, 34. 
 
 when one is discharged by the acl of the other, 35. 
 
 what demands may be included or set off in action against survivor, ST". 
 
 PART PERFORMANCE, (see title Performance.) 
 when sufficient to entitle a parly to sue, 31 1. 
 
 PATENT. 
 
 remedy for injuries to jnfring'emcnt of, 141. 
 
 rAWNBKDKER. 
 
 when be may sue for torts to property in Lis possession, 48. 
 
 PAYMENT. 
 
 may be g-iven in evidence in assunnpsit under general issue, 471, 1*. 
 
 may be pleaded, 474, 5. 
 
 must be pleaded in action ou a specialty and how,4£0. 
 
 PENAL ACTION, AND STATUTE, (see title Statute.) 
 action of when it may be ajjainst several, 73, 4. 
 T^ hen action lies, 105. 
 who may sue in it, 105. 145. 
 venue in actions on, 276. 280. 3 Anslr. 871. 
 declarutitin on, 356 to 360. 
 no damages to be stated in,. 397, 8 
 pleas in, pendency of a prior action, 443. 
 
 PENDENCY. 
 
 ol aaother action, (see title Aiiter Actii^n Pendent.') 
 
 PERFORMANCE. 
 
 by plairtiff of condition precedent how be should state it, 316. 
 
 excuse of how to be stated, 317 
 
 replication to plea of, when it must state a breach, 556. 
 
 PEP FR -NUDEM. (sec title rm.ud.^ 
 
 particulars of fraud, when need not be stated, 552. 
 
 PER OTJOD ACTIO ACCREVIT. j 
 
 alies^ation of in debt ir jcenend, 345, 6. 
 ou statutes, 359.
 
 INDEX. 693 
 
 PEW. 
 
 i-emedv for obstructing of, when case, and when trespass, 143- 175. 
 declui-ation for disturbance of, 367. 
 
 PISCARY, (see title Fish and Fishery.) 
 
 PLACE, (see title Fenue.) 
 
 wliat the cuurts take judicial notice of, 222. 
 when not material, (see title Venue,) 384, 5. 
 
 PLAINTIFFS, who to be, (see title Parties.) 
 
 PLEADINGS IN GENERAL, 
 
 parties to an action who to be, &c. (see title Parties,) 
 ibrm of actions, SiC (see title Actions.) 
 joinder inactions, (see title yoinder.) 
 election of actions, (see title Election of Actions.) 
 of pleading' in general, 215. 
 
 dehnitioM of, statement of facts and not argument or law, 215. 
 
 1. lihat facts necessary to be stated and what not, 216. 
 
 1st. not facts of which courts will take notice, 217 to 223. 
 
 matters relating to the kiiig, 217. 
 
 matters relating to the parliament and statutes, 217, 18. 
 
 common law rights and duties and general customs, 2\S. 
 
 ecclesiastical, civil and marine law, 220. 
 
 customs of gavelkind, Sic- 220. 
 
 terms, calendar, days of week, &c. 221, 2. 
 
 division of England, &c. 222- 
 
 meaning of peculiar English words, 222, 3. 
 
 course of proceedings in superior courts, &c. 223, 4, 5. 
 
 privileges of their officers, 224. 
 2dly. wiiere the law presvmies a fact it need not be stated, 226, 7, 8. 
 3dly. not necessary to state matters which sliould be stated by the 
 
 other side, 228. 
 4thly. statement of legal fictions, Stc. 229. 
 , 5thly. of duplicity, 230. 
 
 Othly. of unnecessary statements, 231. 
 
 7tldy. ofsujjerfluity and repugnancy, 232, 3, 4. 
 
 2. tJie mode of stating tlie facts, 235 to 241. 
 
 wiien no precise formal words necessary, 235. 
 of certainty in pkading, 236. 
 
 3. rules of constructions, 24-1 to 243. 
 
 4. division of pleadings, 243, 4. 
 
 of the precipe, (see title Fnecipe,) 245 to 248. 
 
 of the declaration, (see title JJeclaration, &c. 248 to 402. 
 
 ofthe claim of conusance, (see title Conusance.) 
 
 of appearance, defence, oyer, and impiirlancts, (see those titles,) 402. 
 
 of pleas to the jurisdiction, (see title yitrisdiction,) 427. 
 
 of picas in abatement, (see title Abatement,) 434. 
 
 of pleas in bar, (see title Fleas in bar.) 
 
 of replications and new assignments, (see title i?f/»//cfl^/oRs and ?*^fw .^^i- 
 
 signnients ) 
 of rejoinders, (see title Fejoijiders-) 
 of issues, (see title Issur.) 
 of repleaders, (see title Repleaders.) 
 of pleas puis darrein continuance, (see that title.) 
 of demurrers and joinders, (see title Demurrers.)
 
 694 INDEX. 
 
 PLEAS IN GENERAL, 
 
 order of pleading' and consequence of non-observance of it, 423. 
 
 to the jurisdiction of the court, (see title yurisdiction,) 425. 427. 
 
 in abatement and proceedings therein, (see title Abattnient,) 434 to 459- 
 
 iin bar, 459 to 548. 
 
 defined and several descriptions, 459. 
 criterion of, 445. 
 
 must be of matter of defence at law not in equity, 459. 
 when not of matter of practice, 460. 
 analytical tables of, 461 to 465. 
 
 general observations when general issue or special plea proper, 465 to 468. 
 of the several pleas in bar, 
 the several sorts, 
 
 assumpsit, (see title Assumpsit,) 469 to ^76- 
 in debt, (see title Debt,) 475 lu 4»2. 
 in covenant, (see title Covenant,) 4^2 to 483. 
 in account, (see title, Account,) 483 to 484. 
 in detinue, (see title Dctimte,) 484. 
 in actions by or against executor.s, heirs, &c. 484 to 486. 
 in case, (see title Case,) 486 to 490. 
 in trover, (see title Trover,) 490. 
 in replevin, (see title /Replevin,) 490 to 49L 
 in trespass, (see title Trespass,) 491 to 497. 
 in ejectment, 497. 
 of pleading the general issue or a special plea in general, 497 to 504 
 
 of giving colour, 498 to 503. 
 when advisable to plead specially, 503. 
 all defences to be pleaded, 504. , 
 
 of sham and issuable pleas, 505. 
 of the (jualities of pleas in bar, 
 
 must be conformable to the count, 507. 
 
 if not wlien plaintiff may sign judgment, 507. 
 must answer all assumed to be answered and no more, 509. 
 must confess the facts pleaded to, 511. 
 must be single, 511. 
 must be certain, 513 to 518. 
 
 must be direct and positive and not argumentative, 518, 19. 
 must be capable of trial, 519. 
 must be true, (see title Sliam Pleas,) 520. 
 rules of construction, 
 
 construction against the plea, when ambiguous, 521 to 523. 
 if bad in part considered bad for the whole, 523. 
 when surplusage or repugnancy vitiates, 524 to 526. 
 of the forms and parts of pleas in bar, 
 analytical table of the parts, 526. 
 general form given, 527. 
 title of the court, 527.422. 
 title of tlie term, 527. 447, 8. 
 
 when a special title proper, 527, 8. 
 names of the parties in margin, 528. 
 the commencement of the plea, 528. 
 
 name of the defendant, 528. 
 
 appearance in person or attorney, 529. 410 to 412. 
 defence, 529, 30. 410 to 414. 
 by what attorney, &c. 530. 
 to a part of cause of action, 531» 2, 3. 
 to several counts, &c. 533. 
 the body of the plea, 534, 5. 
 the conclusion, 535. 
 
 when to conclude to the countiy, 535, 6. 7
 
 INDEX. 695 
 
 ?LEAS IN GENERAL— (con(/n«erf.) 
 
 oi \.\\<i forms and parts — (continued.) 
 
 when witli a venfication, 557. 
 wlien to the record, 538. 
 prayer of judgrnent, 539. 
 defects in conclusion, when aided, 540! 
 OP several pleas in bar under statute Ann. 540. 
 confined to courts of record, 541. 
 •what double pleas allowed in court of record, 541. 
 each plea must be valid in itself, 543- 
 formof in general, 542, 3. 
 Of pleas by several defendants, 543 to 546. 447- 
 
 when they may join or must sever, 543. 
 consequences of their joining, 545. 
 form of plea by several, 543 to 546. 
 replication and demurrer, &c. to, 546. 
 Defects in pleas when aided, and how, 546, 7. 
 
 Of pleas in bar is replevin, (see titles Replevin sni Replication.) 
 Of pleas puis darrein continuance, and pending action, (see tltlfe 
 Puis Darrein, C'c) 
 
 I'LEDGES. 
 
 when to be added, 401. 
 not necessary, 401. 
 
 PLENE ADMINISTRAVIT, (see title Executor.) 
 Plea of, 485. 
 replication to, 557. 
 
 of taking judgment of assets, quando, &c. 548- 
 
 POLICY BROKER, 
 
 when he may sue, 5. 
 when liable to be sued, 25, 
 
 POOR RATES. 
 
 general avowry for, 491. 
 
 POSSESSION. 
 
 when essential to support trespass ; as to personalty, 166 to 168. 
 
 as to real property, 175, 6 
 when sufficient to declare upon plaintiffs, 365 368, 
 
 defendants, 369. 
 
 POUND-BREACH. 
 
 remedy for, 140. 
 
 POUND-KEEPER. 
 
 when not liable to be sued, ] 
 
 PRACTICE. 
 
 wlien matter of not pleadable, 460. 
 
 PR.fi CIPE AND ORIGINAL WRIT. 
 
 when to proceed by original writ, 245. 
 form of in assumpsit, 245 to 247. 
 
 in trespass, but unusual, 245. 
 
 in debt and covenant, 247, F 
 
 PRAYER OF JUDGMENT. 
 
 in a plea general rule. 44.5. 6.
 
 t&G INDEX. 
 
 PRECEDENT CONDITION, (see title Condition Freccdcnt.) 
 
 PRECEDENTS IN PLEADING. 
 
 why to be adhered to, 236. 86. 
 
 PRECLUDI NON. 
 
 what part of replication so termed, 573. 
 how to be framed, if to a part of plea, ib. 
 
 PREMATURE ACTION, 
 consequences, 442. 
 plea of, though not usual, 442. 
 
 PREMIUMS OP INSURANCE. 
 
 who liable to be sued for, 25. 
 
 PRESCRIPTION. 
 
 how to be stated, 365. 
 
 freeholder to prescribe, copyholder wlieu not, 561 
 
 wlio may join in, 544. 
 
 PRINCIPAL, (see title Agent, Master, Otuncr, &c.) 
 when he may sue, 5. 
 
 PRISONER, (see title Fescue.) 
 
 declaration against in custody of sherifij 8ic. 287, S-. 
 
 PRIVILEGES. 
 
 of what the court will take notice without pleading, 224 
 of person, plea of, (see title Ahateinent,) 4o0. 
 how plea cot\cludes, 450. 
 
 PRIVITY OF ESTATE AND CONTRACT. 
 
 Nature of, 274, 5, 6. 
 
 IPROCESS. 
 
 not bailable, declaration need not correspond with when, 34. 
 jubtificatiun under, must be stated, 492, 3- 5, 6. 
 replications to pleas justifying under, 564. 569. 
 new assignments relating to, (see title New Assignments.') 
 
 PROCHEIN AMI. 
 
 of declaring by, 291. 
 of pleading by, 449. 
 
 PROFERT. 
 
 The nature and form of it, 348 to 351. 
 
 when a profert or an excuse for omission necessary, 348 to 351. 
 
 at the end of declaration of letters testamentary, &.c. 400- 
 
 omission of, only ground of special demurrer, 350. 460. 
 
 whether an unnecessary profert entitles the other party to oyer, 415. 
 
 PROLIXITY. 
 
 when short pleading allowed to avoid it, 240. 
 
 PROMISSORY NOTE, {see title jSill of Exchange.) 
 
 PROPERTY. 
 
 what sufficient in personal property to support trespass, 166,7' 
 what sufficient in real property, (see title Possession.) 
 pleadable in abatement or bar in replevin, 434, 5.
 
 INDEX. 69? 
 
 VROTESTANDO, 
 
 defined, &c. 
 
 in general, 589 to 592. 
 
 replication protesting delivery of a pipe of wine in satisfaction, 589!- 
 
 protesting a writ and warrant, 58.9. 
 nature and utility of it, 590. 
 what matter may be protested, 590. 
 defect in, consequence of, 590, 1. 
 form of, in a plea, 591. 
 
 in a replication, 591. 
 
 PROUT PATET PER RECORDUM. 
 when necessary to be alleged, 356. 
 omission of, how to be objected to, 356. 
 
 PUIS DARREIN CONTINUANCE. 
 
 plea of when proper, 532. 
 
 pleas of in general, 634 to 638. 
 
 how to plead matter arising pending suit and before issue, 634, 5, C> 
 
 after issue, 635, 6. 
 what matters so pleadable, 635, 6. 
 is not a departure, 623. 
 in abatement, 6S6. 
 judgment upon, peremptory, ib. 457. 
 in bar, 636. 
 nature of, 636. 
 time when to be pleaded, 
 
 in bank, 636, 7- 
 
 at nisi prius and when, 637. 
 requisites of, 637- 
 forms of, 637, 8. 
 affidavit of truth, 638. 
 effect and other parts relating to, ib. 
 marriage of plaintiff pending action, 437. 
 
 PURCHASER. 
 
 of a freehold or a term, how to declare on a lease, 347- 
 
 QUANTUM MERUIT COUNT. 
 
 in assumpsit, 335. 
 
 not necessary though usual, 337- 
 
 in debt, 101.'345. 
 
 QUANTUM VALEBANT COUNT. 
 
 in assumpsit not necessary though usual, 335. 337. 
 in debt, 101. 345. 
 
 QIJ.£ SUNT EADEM. 
 
 of this allegation in conclusion of a plea, 534, 5. 
 
 in case of a united plea to several different trespasses, 533, 4. 
 
 QUI TAM, (see title Penal Statute.) 
 
 when necessary so to declare, 356. 
 
 READINESS. 
 
 to perform condition precedent, averments of, 310 to "2^. 
 
 REAL PROPERTY. 
 
 case for injuries to, when proper, 141, 2. 
 trespass for injuries to, when proper, 141, 2- 
 
 Voi>. T. { 66 ]
 
 698 INDEX. 
 
 REBUTTERS. 
 
 nature of, &c. 629. 
 
 RECOGNISANCES OF BAIL. 
 
 what the best remedy on, lOit. 
 declaration on it, 354. 
 
 jjrout patet per recordum, 356. 
 plea of nul tiel record, 
 replication to plea of, no capias ad satisfaciendum, 55r. 
 
 RECORD, (see title Nul Tiel Record.) 
 
 when trover does not lie for conversion of it, 150. 
 declaration on, (see title Debt,) 354 to 356. 
 
 REFERENCE TO DEED, 
 statement of it, 352. 
 
 REJOINDERS. 
 
 defined, 627. 
 
 governed by the same rules as pleas, ib. 
 
 must not depart from the plea, (see title Departure,") 627. 
 
 cannot obtain leave to rejoin double or several matters, 627. 
 
 similiter and form of, 627, 8. 
 
 conclusion with verification, when necessary, &.c. 628. 
 
 conclusion to rejoinder denying several matters, 629. 
 
 RELATIVE RIGHTS. 
 
 remedies for Injuries to, 134. 137 
 declaration for injuries to, 365. 
 
 RELEASE. 
 
 may be given in evidence in assumpsit, 471- 
 
 in case, 486, 7. 
 must be pleaded in actions on specialty, 480. 
 
 in trespass, 486. 496. 
 replications to plea of in assumpsit, 553. 
 
 in trespass, 569. 
 puis darrein continuance plea of, (see title Puis Darrein, &c-) 
 
 RENT, 
 
 recoverable by whom, 11. 
 against whom, 35, 6. 
 how recoverable in assumpsit, .338. 
 in debt, 103. 35, 6. 
 
 wlien not, 106. 35. 
 in covenant, 35, 6. 106. 
 when not, 112. 
 avowrj- or cognisance for, 491. 
 
 REPLEADER. 
 
 when awarded incase of an immaterial issue, 631, 2. 
 
 wlieu granted before trial, 633. 
 
 denial of it when error, ib. 
 
 judgment and pioreeding de novo, 633. 
 
 no costs are pfijnbie by ei'ihcr party, 633. 
 
 not after a default at nisi prius, 6oo- 
 
 when not after demurrer, &c. ib. 
 
 distinction between it and a judgment non obstante veredicto, 634. 
 
 RESCUE, 140.
 
 INDEX. 699 
 
 REPLEVIN, ACTION OF. 
 
 ■when the action lies in general, 157- 
 the nature of the action, 158. 
 for what property it lies, 158. 
 who may support it, 158. 
 for what injury it lies, 159. 
 
 the pleadings, judgment, and costs m general, 161, 2- 
 declaration, 
 
 title of court and term, 261 to 264. 
 venue in, (see title Venue) 
 commencement, 285 to 292. 
 statement of the property, 363- l^^- 
 
 plaintlft"'s property therein, 365. 
 the injury, 161. 380. 383, 4, 5. 
 damas^es, &c. 385. 
 conclusion, 397 to 400. 
 $ pledges, 400. 
 
 pteas, avowries, and cognisances in, 
 
 plea in abatement, or bar of propevtjr, &c. 434. 
 non cepit, when proper, 490. 
 
 evidence under it, 159. 
 cepit in alio loco, 490, 1. 
 not guilty when allowed, 491. 
 
 avowries, &c. for rent, &C.491. r,„ o in Wi 4 
 
 by tenants in common, jomt-tenants, &c. 9, i".^^'>» * 
 words of avowry instead of cognisance not material, 5ol. 
 pleas in bar to avowries and cognisances, &c. 
 may plead in bar several pleas, 560. 
 de injuria improper, 560. 
 no new assignment permitted, 602, 3. 
 to a plea of cepit in alio loco, ib. 
 denial of defendant's being bailiff, 560. 
 to an avowry for rent, 
 
 denial of the tenancy, ib. 
 pa3'ment of ground rent, &,c. 560. 
 eviction, 561 
 
 nil h.'ibuit a bad plea, 561. — 
 
 tender, 561. 
 to an avowry damage-feasant, 561. 
 
 denial of defendant's title, 561. 
 a demise from defendant, 561. 
 rieht of common, 561, 2. 
 right of way, 562. 
 
 defect of fences, 562. 
 abuse of distress, ib. 
 
 REPLEVIN BOND. 
 
 case, for not taking replevin bond, 140. 
 taking insufficient pledges, 140. 
 REPLICATIONS. 
 
 To pleas to the jurisdiction, (see title Jurisdiction, fleas to.) 
 To pleas in abatement, (see title Abatement, Fleas in.) 
 to particular pleas in abatement, 
 to a plea of coverture, 438. 
 to a plea to the count nf variance, 439. ^ 
 
 if oyercraved, plaintift" may sign judgment, 4o9. 
 or apply to court to set it aside, 439. 
 ro the writ, 
 
 to a plea of variance or misaddition, 
 
 when plaintiff may sii^n judgment, 440. 
 apply lo court to set it aside, 440 
 tb a plea of another action pending, _ 
 
 cannot discontinue first to support tlie second, 44o.
 
 roa INDEX. 
 
 HEPLICATIONS— (co;if»mf<f.) 
 
 To pleas in abatcjnent to the -wyxi— {continued.') 
 to a plea improperly entitled, &,c. 
 m;iy sign judgment, 448. 
 may apply to court to set it aside, ih, 
 tnay demur, ib. 
 or allege the imparlance as estoppel, ih. 
 to a plea of misnomer, 454, 5. 
 to a plea of nonjoinder, 454. 
 in general, 
 
 form and requisites of, 454, 5. 
 To pleas in bar, 
 
 -general observations, 548 
 election of several when, 549 to 551. 
 analytical view of, 550. 
 I. of the different replications, 551 to 570. 
 in assumpsit, 551 to 555. 
 
 to a plea of infancy* 551. 
 coverture, 551. 
 alien enemy, 551. 
 insolvent debtor's act, 552. 
 illegality in the contract, &c. 553;. 
 tender, 552. 
 
 accord and satisfaction, 532. 
 ai'bitrament, 553- 
 judgment recovered, &c. 553. 
 release, 553. 
 set-ofi', 553. 
 
 court of conscience act, 554. 
 statute of limitations, 554- 
 in debt, 
 
 on simple contract, 555. 
 ^ on specialty, 555, 6. 
 
 on records, 556. 
 on statutes, 55r. 
 covenant, 557. 
 
 in actions against executors and administrators, 557, 8 
 in actions against an heir, &c. 559. 
 in actions on the rase, 559- 
 
 in general, 559 to 560. 
 when de injuria sufficient, 55^, 560. 
 in replevin, 
 
 de injuria improper, 
 to a plea of cepit in alio loco, 560. 
 denial of defendant's being baililf, 560. 
 to an avowry for rent, 
 
 deni:d of tenancy, 560. 
 payment of ground rent, &c. 560, 1. 
 eviction, 561. 
 nil hubuit a bad plea, 561. 
 tender, 561 
 to an avowry, damnge-feasant, 561. 
 
 denial of defendant's title, 561. 
 a demise from defendant, 561- 
 right of common, 561, 2., 
 right of way, 562. 
 defect of fences, 562. 
 abuse of distress, 562. 
 in trespass, 
 
 to persons, 
 
 when de injuria sufficient, 562, 3.
 
 INDEX. roi 
 
 UEPLICATIONS— Cco"t;«"e(/.) 
 
 in trespass — {continued) 
 
 to persons — ^continued.) _ 
 
 when plaintiff nnust reply specially, 56i, 4. 
 where he must r.ew assign, SGo. 
 wliere he can onl) take issue on part of plea, 5Q>^' 
 to personal proi-erty, 
 
 wlien de injuria sufficient, 564, 5. 
 when not, 564, 5- 
 
 wiicn the replication should be special, 564, 5. 
 when the plaintifi can only take issue on pai-t of the 
 plea, 564, 5. 
 to real property, 
 
 to a plea of liberum tenementum, 
 
 1 when general denial sufficient, 565. 
 1. title derived from defendant, 566. 
 3. title derived from a prior owner, 566. 
 4 new assignment of abuttals, &c. 566. 
 when plaintiff may deny defendant's autliority a< 
 agent, he 566. 
 to a plea of license, 567. 
 
 defect of fences, 567. 
 right of common, 568. 
 right of way, 569. 
 to a plea of any matter in discharge, 569, 570. 
 II. of tiie fonns of replications and particular parts, 
 title of the court and term, 570. 
 imparlance and suggestion, when projicr, 570- 
 to a plea concluding to the country, 570. 
 of tlie similiter in general, 570, 1. 
 to a plea of nul tiel record or stating a record, 571. 
 to a special plea concluding with a verification, 572. 
 the commencement of tlie replication, 573. 
 matter of estoppel, 573. 
 of the prechidi non, 573. 
 form where tlie replication only answers part of plea, 
 
 573, 4 
 form where it answers separately different parts, 573, 4 
 f )rm where the replication answers several pleas, 574. 
 '.he body of the replication, 
 
 a statement ot matter of estoppel, 575. 
 
 when the ground of demurrer, ib. 
 denial of the plea, 576, 7. 
 ^ of the whole plea de injinna, &c 577. 
 
 when allowed, &f-. 577 to 585. 
 the form of it, 585. 
 denial of'.nly part of the plea, 585. 
 of what fact, 5S5 to 589. 
 the mode of special denial, 589 to 590. 
 a denial and stating a breacii, 598, 9. 
 confession and avoidance, 599. 
 inst-inces of, 599, 600. 
 
 form and requisites of these replications, 600, 1. 
 new assignment, (see title Nevj Assignvient,) 601. 
 the conclusion of the replication, 
 in particular instances, 614, 15. 
 when it should be to the country, 615. 
 of a re])lication concluding with a traverse, 615. 
 when a particular fact is denied, 615. 
 when with a verification, 616. 
 when it must be of new matter as stated, 616.
 
 '702 INDEX. 
 
 REPLICATIONS— (co;r^f«»/fj'.) 
 
 tlie conclusion of tlie replication— (co;jf/;jijCi/.; 
 wlien i need not, 616. 
 estoppel, 616, 17. 
 prayei- of judg-meiit, 6ir. 
 consequences of mistake, 445, 6. 
 III. tlie (jualities of repiications, 
 
 in many resptcts similar to those ofa plea, 617. 
 must answer so much of the jilea as it professes to answer, 618. 
 must not dep u-t from the declaration, (see title Departure,) 618. 
 instances of departure, 618, 19. 
 Iiovv to be objected to, 623. 
 must be certain and what is requisite, 624- 
 must not be double, 625, 6. 
 
 duplicity deiined, 625. 
 
 whyoiijected to, ib. 
 
 cannot obtain leave to reply double, 625. 
 
 when it may put in issue several facts, 625. 
 
 may reply one matter as to part, and anotlier as to residue, 625. 
 
 when may state several breaches under statute, 626. 
 
 replication to a ])lea of set-oH', 626. 
 
 must be objected to by special demurrer, 626- 
 
 REPUGNANCY. 
 
 what and how far objectionable, 232 to 235. 
 
 heputation. 
 
 remedy for injuries to, 124. 137". 
 
 REQUEST. 
 
 when plaintiff's request to be averred in a declaration, 322 to 325. 
 
 form ofallei^ations and difference between general and special request, 324, S. 
 
 consequence of mistake, 324. 
 
 when defendant's request necessary to be stated in common counts, 338. 
 
 to remove a nuisance when to be stated. 576, 7 
 
 RESCUE. 
 
 remedy for, 140. 
 
 RETAINER BY AN EXECUTOR, 
 when to be pleaded, 485. 
 
 REVERSION. 
 
 property in, remedies for injuries to, 133 to 142- 
 
 when reversioner may sue, 49, 50- 
 declaration for to personal property, 365. 
 
 RIENS EN ARRERE. 
 
 to real property, 367. 
 
 plea of in debt, 477, 8. 
 
 in covenant a bad plea, 482- 
 
 plea in bar of, in replevin, 560. 
 
 IfllEN PER DESCENT OR DEVISE, 
 plea of, 4H5. 
 replication to it, 559. 
 
 RIOT ACT. 
 
 remedy upon, 144- 
 
 RIGHT, (see Title.)
 
 INDEX. ?03 
 
 SAILOR. 
 
 when he may sue fos share of profits of a voyage, 27. 
 
 SCIENTER. 
 
 when material to be stated and proved, 69. 136. 
 
 when not, 139. 
 
 when material to be alleged and consequence of omission, Sf . 7. 
 
 SCILICET, (see title Videlicet.) 
 the etlect of it, 308. ' 
 
 SCIRE FACIAS. 
 
 declaration in, states no damages, 397- 
 
 when affidavit of truth of pleas in, necessary, 45?. 
 
 SECT A, (see title Suit.) 
 
 SECURITY COLLATERAL. 
 
 when no bar to an action, 35. 
 
 SEPARATE MAINTENANCE. 
 
 form of action in case of nonpayment of, 95. 
 cannot be replied to a plea of coverture, 438. 
 
 SERVANTS, (see titles Parties, .^genty and Master and Servant.) 
 when he cannot sue on a contract, 5. 
 when he may sue for a tort, 48. 
 when he is liable to be sued on a contract, 24. 
 
 for a tort, 67, 8. 71 to 73. 
 remedy for debauching- of, or beating or enticing away, 138. 
 when he cannot sue, 151. 
 
 SZT-OFF. 
 
 when to be pleaded, or notice of it given in assumpsit, 473, 4. 
 when best to be pleaded, 475. 
 
 may plead or give notice of it in debt on simple contract, 476. 
 cannot be pleaded in replevin except for ground-ient, 561. 
 
 if part of set-off badly pleaded, defendant must not demur to the whole plea, 524. 
 replication to plea in assunip.«it, 353. 
 in debt, 555. 
 where part of plea is on a record, &c. 526. 
 
 SEVERAL COUNTS. 
 
 joinder of forms and causes of action, 196 to 207. 
 
 several counts wlien they may and should be added, 391, 2. 
 
 they should be substantially diflerent, 391. 
 
 at the suit of or against an executor or administrator, 391, 2. 
 
 in assumpsit, 392. 
 
 in debt, 392, 3. 
 
 in covenant, 393. 
 
 in actions for torts, 
 
 in trespass, 393. 
 no misjoinder, 394. 
 costs to be attended to, 394, 5. 
 form of the counts, 391. 396, 7- 
 
 .SEVERAL DEFENDANTS, (see titles Parties and Pieas.) 
 pleas by in general, 543 to 546. 
 one may plead in abatement, another in bar, and another demur, 447. 543. 
 
 SEVERAL PLEAS, (sec title P/m.?.) 540 to 543. 
 
 SEWERS RATE. 
 
 avowry, ?ic. for, 49.
 
 704 INDEX. 
 
 SHAM PLEAS. 
 
 wliat and whicli only should be adopted, 505, C 
 consequence of plea appearing to be false, 520, 1 
 vvlien no affidavit of truth necessary, 452. 
 
 SHERIFF AND OFFICER, (see title Escape, &c.) 
 when sheriff liable for act of his officer, 69. 73. 
 sherifi" when to be sued, 69. 73. 
 remedy again.st, 137. 
 when trover against will not lie, 150. 
 when trespass against will not lie, 168, 9. 
 when tresp.tss lies against for abuse of process, 185, 6. 
 sheriff or officer, when they should not join in plea with another, 545. 
 
 tJHIP. 
 
 captain of, when he may sue or be sued, 5. 23, 4. 
 sailor when he may sue for proportion of earnings, 26. 
 remedy for negligently navigating of, 126. 139. 
 who agamst, 68, 9. 
 
 SIMILITER. 
 
 when proper to a plea, 549. 
 
 form of it in a replication, and consequence of mistake, 570, 1. 
 
 in a rejoinder, 627. 
 when plaintiff may add it, 628. 
 
 SIMPLE CONTRACT, (see titles .dssujiipsit and Debt.) 
 debt upon it, 344, 5. 
 
 SLANDER, (see titles Words, Case, Innuendo-) 
 remedy against whom, 
 
 for written slander lies against two, 73. 
 
 for verbal only against one, 74- 
 
 against husband and wife, 81. 
 form of action lor, case, 137. 
 declaration in, 
 
 inducement of good character not necessary, 226. 364. 
 of trade, &.c. when necessary, 365.381, 
 
 colloquium of plaintiff' and trade, &,c. 381, 2. 
 
 statement oftlie libel or words, 382. 
 
 the innuendoes, 382, 3. 
 
 the damages, 385, 6, 7. 
 cftnsequences of defect in, 382, 3. 
 pleas in, 
 general issue when proper, 487, 8. 
 
 truth of the slander imist br- pleaded specially, 487, Hr 
 I'eplication, in what sufficient, 559. 
 new assignment in, when proper, 603- 
 
 SOVIT AD, or POST DIEM, 
 when proper, 480- 
 replications to, 555. 
 
 SON ASSAULT DEMESNE. 
 
 must be pleaded and not given in evidence, 472- 
 
 when not advisable to plead it on account of costs, kc. 503, 4. 
 
 rcjillcations to plea of, w hen de injuria proper, 562, 3. 
 
 when not, and the replication must be special, 563, 4. 
 see the instances, 599. 
 new assignment when pi*oper or not, 604, 5. 
 
 SPECIAL COUNTS, (see the respective actions.) 
 in assumpsit, 292, Sic. 
 
 b'PECIAL DATMAGES, (see title Damage.)
 
 INDEX. 705 
 
 SPECIAL ORIGINAL, (see title Precipe.) 
 
 vviicn adu'jableto proct-ed by, 245. 
 form of in assumpsit, 245 to 247- 
 
 in trespass, but not usual to proceed by, 245. 
 
 in deb', and covenant, 247, 8. 
 
 SPECIAL PLEAS, (see title iYeai, and tlie respective actions.) 
 
 SPECIALTIES, (see titles Deed o^nA De^t) 
 
 assumpsit when it does not, or does lie upon, 94 to 98. 
 
 STAKEHOLDER. 
 
 when liable to be sued, 25. 
 
 STATUTE OF LIMITATIONS, (see title Limitations.) 
 
 STATUTE OF USES, 
 
 how to plead deeds Dperatin^ under it, 
 no profert necessary, 349- 
 consideration of to be stated, 351. 
 
 STATUTES, (see also title Penal Statutes.) 
 
 of wliat matters relating to them, ^lie courts take judicial notice, 218 
 public oug'ht not to be set forth, but only r ferred to, 218, 19. 
 excejning clause or proviso, how to be pleaded, 229. 
 actions upon debt, 104 
 
 case, 143, 4. 
 declaration on penal statute, 356 to 360. 
 
 SUGGESTION. 
 
 in a replication of death, &c. 576. 
 
 SUIT. 
 
 at end of declaration, nature of it, 399. 
 
 SURETY, 
 
 action ag'ainst on his collateral undertaking-, 94. 106. 
 declaration ag'ainst, 339. 
 
 may sue his cosurety for proportion of money paid, 27 
 executors of when not liable, 37. 
 
 SURGEON, 
 
 assumpsit against, 92. 
 case against, 137- 
 
 SURPLUSAGE. 
 
 wha' is, 216. 
 
 consequences of it, 231, 2, 3, 4. 
 
 in an inducement when not materia!, 294. 34" 
 
 in a plea when it prejudices or not, 524. 
 
 SURREBUTTER. 
 
 nature and requisites of, 629. 
 
 SURREJOINDER. 
 
 nature and requisites of, 629. 
 
 SURVIVOR, (see titles Parties and Partner.) 
 when to sue, 11. 
 
 what demands he may join, 12- 200. 
 when to be st.ed, 37. 
 
 what demands may be joined, 37. 200 
 Vol. I. [ 67 ]
 
 706 INDEX- 
 
 TLNAISTTS in common, {^ee i\t\e Parties.) 
 aclJDiis, ike. bv, 
 
 w'len nu\ join ov sever in an acion ex contractu, 9. 
 when tliej must j(jin in an action for a tort, 31, 2. 
 
 in replevin, l.")9. 
 must sever in an avc)\vry for resit, 9. 543, 4. 
 
 how to avow and make coirnisance, 544. 
 how to avow and make cognisance, ha- a distress damage-feasant, 544, 
 wlien cannot sue each other in trover or trespass, 155, 6. 170- 172- 180. 
 in ejectment, 192. 
 actions, &c. ;i gainst, 
 
 liow to be sued, 2.5. 
 
 wlien they must be sued jointly for torts relating' to their land, 7fi 
 
 when onecannotsue tlie other, 155,6. 170. 172. 180. 
 
 TENANTS JOINT, (see title Joznt-tenanU.) 
 
 TENDER. 
 
 wlien not necessary to be stated by plaintiff and readiness sufiicient> 318, 9. 
 plea of, 
 
 in assumpsit, 473. 
 in debt, 476. 
 in trespass 496- 
 in bar in replevin, 561, 2. 
 
 when cannot be pleaded, with general issue to the whole, 541- 
 how to conchide, 539. 
 replications to a plea of, In assumpsit, 552. 
 in trespass, 569. 
 
 TENEMENT. 
 
 when too general a description in pleading, 189. 362. 
 
 TERMS. 
 
 duration of need not be stated in pleading, 221, 2. 
 
 statement of in a declaration, (see Title of Term,) 262 to 264. 
 
 TIME. 
 
 statement of it in a declaration, 257, 8, 9- 383. 
 
 in. stating a materia! fact, 257, 8. 
 
 how often to be stated, 258, 9. 
 
 when nut nccessiiry to be stated, 257,8,9- 383,4. 
 
 when precise time not material, 258, 9. 383. 
 in stating- contracts, 258, 9. 
 in st&ting- torts, 383, 4- 
 
 when torts may be stated to have been committed on se\ eral da) s, 384. 
 
 no cause of action or damages lo be stated after title of the term, 259. 265, 
 
 when mistakes aided, 260. 390. [6. 390. 
 
 statement of it in a plea, 517. 508, 9. 
 
 when not traversable, 587. 
 
 when immaterial and not a departure, 622, 3. 
 how obtained by a dilatory plea of demurrer, (see title Sham Plea) 
 
 TITHE. 
 
 action for not setting out lies against two, 73. 
 
 lies at suit of an executor, 58. 
 
 lies against an executor, 79. 
 
 form of remedy, 105. 
 vhcn action lies for value of, 91, 2. 
 lemedy for not carrying away, 141 
 ejectment for, 189.
 
 INDEX. ror 
 
 TITLE OR ESTATE, (see titles D-^daration, Pleas, and Replication.) 
 statement of it in a declai-ation, 
 
 when it must be stated in covenant oi" debt, 347- 
 
 derivative title, 353. 
 
 unnecessary statement, when it don't vitiate when not traversable, 347. 
 
 in actions of tort when necessary and how, 364 to 374. 
 
 when not traversable, (see title Estoppel,) 347, 8. 
 statement of it in a plea, 
 
 when title to land, &c. may be given in evidence, 494. 
 
 right to easements mii.itbe pleaded, 495- 
 statement of it in a replication. 
 
 when necessary 593, 4, 5. 
 
 TITLE OF COURT. 
 
 what in a declaration, 261. 
 in debt, 344. 
 in a plea, 527. 
 
 TITLE OF TERM. 
 
 of a declaration, 
 
 what and intent of, 262- 
 must be of some term, 262. 
 
 when a declaration, &c. may be filed in vacation of preceding term, 262. 
 of sometime after appearance or bail filed, 262 
 of the term in wliich writ returnable and when not, 262, 3. 
 against several defendants who appear in different terms, 262, 3. 
 after outlawry of one defendant, 263. 
 of a declaration by the by, 2&5. 
 when a special title is necessary, 263, 4, 
 consequences of mistake, 264 to 267. 
 how aided, 265 to 267. 
 of a plea, 
 
 of what term in case of a plea in abatement, 421 to 424- 447, 8. 528 
 of a plea in bar, 527, 8. 
 of a replication, 570. 
 
 TOLLS. 
 
 debt or assumpsit for, 103. 
 declaration for disturbance of, 368, 
 prescription to distrain for, &c. 589. 
 
 TRAVERSE, (see titles Denial, De Injuria, &c.) 
 
 defined to be synonymous to denial, 576 and id. note (a). 
 
 formal traverse what and language of, ib. 
 
 when more than one fact may be put in issue, 577. 
 
 must be put in issue, 577, 8. 
 1st. general denial of whole plea, or de injuria when allowed, &c. 578 to 585. 
 
 form of it, 585. 
 2d. denial of only part of the plea, 585 to 599. 
 
 Ist. what fact may be denied, 586 to 589. 
 
 of immaterial traverses, 597, 8. 
 
 must be of a material fact, 586. 
 
 may be of matter under a videlicet, ib. 
 
 only of matter expressed, &c. 585. 
 
 when of command, 566. 586. 
 
 not of matter which defendant estopped to deny, 586. 
 
 not of immaterial matter, 587. 
 
 not of matter of law, 587. 
 
 not on a negative alU^gation, 587- 
 
 not too large, 587, 8. 510. 
 
 nor too narrow, 588
 
 708 INDEX. 
 
 TRAVERSE— (confinuer/.) 
 
 ^d. mocks or form ol'such denial, 589 to 599. 
 
 1. protesting a part and </e injuria absque residua causa, 589. 
 
 2. a diiect denial of a particular allegation without a forinal tra- 
 
 vtM-se, 592. 
 
 3. a formal traverse, 
 
 when improper or not advisable, 592, 3,4. 
 when necessary, 593, 4. 
 form of it, 
 
 inducement, 595. 
 bef^innis g^ of the traverse, 596. 
 lanj^nage of, 595, 6. 
 conclusion of, 596, 7- 
 wlien a traverse after a traverse, 597, 8. 
 consequence of improper and immaterial traverses, 597, 8. 
 defects in, when and how aided, 598. 
 4. shewing a particular breac h, 598. 
 when proper or not in a pica, of tune or place, 534, 5. ' 
 when too large, 510. 587, 8. 
 ■when plaintifi may vaiy from defendant's traverse of time or place, 59. 
 
 TREASURER, (see title Parties.) 
 when he cannot sue, 5. 
 
 TREES. 
 
 ^tions relating to, 49, 50. 
 
 by or against executors, 59. 80. 
 case for waste t", 142. 
 trover for, 149, 50. 
 
 TRESPASS, (see title Trespass, Action of.) 
 meaning of the word, 57. 162. 
 
 TRESPASS AB INITIO. 
 
 the nature of it, 172, 3. 180, 1. 
 
 when trespass lies for it, 164 172. 180. 
 
 replication of matter of, 609. 
 
 TRESPASS FOR MESNE PROFITS, (see title Mesne Profts.) 
 
 TRESPASS, ACTION OF. 
 
 b^ and asrainst whom it lies, (see title Parties to Action,) 65 to 73- 
 general points governing this action, 122 to 133. 
 
 lies only for injuries considered as committed with force and imme> 
 diate, 123 to ICS. 
 for what injuries not under colour of process. 
 
 for defendant's own personal injury, 164 to 183. 
 to the person, 
 
 to what absolute rights, 164. 
 to what relative rights, 164, 5. 
 to nersonal property, 165. 
 to what property, 167. 
 
 animals domiciled and ferre naturae, &c. 165 6. 
 plaintiff's interest tlierein, 166. [sary, 166. 
 
 actual or c(>nst!»!ctive possession and property neces- 
 general owner who, 167. 
 bailee who has an interest, 168. 
 bailee having no interest, &c. 168. 
 mere bare possession,. 168j 9.
 
 INDEX 709 
 
 TRESl'ASS, ACTION CTF, (conth.ued.) 
 the injury, 169. 
 
 for what illeijfal taking-, 169. 
 t'oi- what oilier injury, I71. 
 for a trespass ab initio, 172, 3- 
 to real property, 
 
 to what property, 
 
 must be corporeal, kc.l73, 4, 5. 
 the plaintifi's interest therein, 
 
 actual possession requisite, 175, 6, 7- 
 what possession sufficKUt, 176. 
 exclusive possession necessary, 177, 8. 
 reversionary interest insufficient, 179. 
 the injurv, 
 
 an entry of defendant essential, 178, 9. 
 what entry sufficient, 178, 9. 
 nonfeasance won't suffice, 179. 
 when it hes against a lessee, joint-tenant, &c. 180. 
 for the act of an agent, servant, &c. when, 181. 
 wiien tiie principal is not liable, 181 
 for what injuries under cutoiir of proctsi and vvhat not, 183 to 187- 
 
 1. where an erroneous judgment, kc is given, 183. 
 
 2. when the court has no jurisdiction, 184. 
 
 3 wiiere the proceedings were defective, 184, 5. 
 
 4. where the process was misaj-'piii-d, &c. 185. 
 
 5. wlien the process is uhused. &c. 185. 
 
 6. where a ministerial officer has acted without warrant, 186. 
 
 7. where the process was legal but maliciously issued, 187- 
 pleadings, costs and judgment in, in general, 187, 8. 
 pleadings in particular, 
 
 dvcLaration in, 
 
 title of court and term, '2CA to 264. 
 venue in, (see title Venue ) 
 commencement, 285 to 292. 
 
 statement of the mailer or thing affected, 362 to 364. 
 of the plaintih's right or interest, 364 to 374. 
 of the injury, 374 t(; 385. 
 of the damages, 385 to 390. 
 alia enormia, 387, 8. 
 conclusion, 397 to 400. 
 pledges, 400 
 several counts in, 393. 
 Fleas in, (see title Pleas and particular titles) 
 
 general issue in, in general when proper, 491, 2- 
 special plea in general when proper, 492. 
 in trespass to persons, 
 
 when plea should be special, 492, 3. 
 in trespass to personal propertj-, 
 
 when plea should be special, 493, 4. 
 in trespass to real jiropcrtj , 
 
 when plea should be special, 494 to 496. 
 in actions against justices, &c. 496 
 
 Seplications in, (see title Jieplications-) 
 Rejoinders in, (see title Rejoinder.) 
 
 TROVER, action of, 
 
 general applicability of, 147. 
 
 in respect of what personal properly it lies, 149. 
 
 what interest the plaintiff must have, 150, 1, 2. 
 
 for what injury, and what amounts to a conversion, 15:J.
 
 no INDEX, 
 
 TROVER— icomlnued.') 
 
 a wrongful Uking, 153. 
 assmiiption of property, 153. 
 (lemaiul and refusal, 154, 5. 
 against wliom it iloii't lie, 155. 
 pleadings, ?tc. therein in general, 156, 7- 
 pleadings therein in particular, 
 declaration, 
 
 title of court and term, 261 to 264. 
 venue in, (see title Venue.) 
 commencement, 285 to 292- 
 
 statL-ment of the matter or thing affected, 362 to 364. 
 of tlie plaintiff 's right or interest, 364 to 374' 
 of I lie injury, 374 to 385. 
 pledges, 400. 
 special plea in, when advisable, 489, 490, 
 
 TRUSTEE, (see title Cestui que Trust.) 
 when he must sue, 3, 4, 5. 
 under composition deed cannot sue, 11. 
 when he maybe sued, and when not, 46. 66. 
 auctioneer and stakeholder considered as such, 25. 
 
 TURNPIKE ACT. 
 
 persons acting under it may plead general issue, 496. 
 
 UNDER LESSEE when not liable, 36. 
 
 UNDER SHERIFF. 
 
 when cannot be sued, 73. 
 
 USE AND OCCUPATION. 
 
 assumpsit far, form of the count, 338. 
 
 defendant estopped from disputing lessor's title, 575. 
 
 USURY. 
 
 may be given in evidence in assumpsit; 470. 
 must be pleaded in actions on specialty, 479, 480. 
 replication to plea of in assumpsit, 552. 
 in debt, 555. 
 
 VARIANCE, (see titles Declarations, Pleas, and Differed Actions.) 
 between writ and declaration cannot be pleaded, 438, 9. 
 
 how to be taken advantage of, 439. 249. 
 
 in names of the parties, 249, 250, 1, 2. 
 
 in number of parties, 252. 
 
 in the character in which the parties sue, &c. 253. 
 
 in the cavise and form of action, 254, 5. 
 in a declaration from facts, when material or not, 302 to 308. 
 
 in case, 372 to 374. 
 in d.ay or time or place when not material, (see titles Time and Venue,) 383, 4. 
 
 VENUE, 
 
 partioidar points, 
 
 where to be laid in actions by original, 246. 273. 
 when bail discharged by mistakes, 246. 249. 273, 4. 
 in a declaration, 
 
 general rules as to laying it, 267, 8, 9. 
 when local must be laid in real county, 
 real actions, 271. 268. 
 ejectment, 271. 268. 
 
 actions for injuries to real property, ways, &c, 271- 
 trespass and replevin, 384, 5.
 
 INDEX. 711 
 
 VENUE— (c-on/m«et/.) . p , , 
 
 when no remedy here where land is out of Enghind, 721. 
 venae may be laid in another county, with consent and by 
 
 leave uf tlie court, 271. 
 option of one of several counties when, 271, 2. 
 in debt or scire facias, on recognisance of rent, 272. 
 in debt on judgment, 272. 
 
 debt for rent-cliarge against pernor of the profits, 272, 3. 
 local custom, 273. 
 when transitory. 
 
 acti(»ns for injuries to the person or personal property, 273- 
 actions on contracts, 273. 
 
 when advisable to lay it m proper county, 274. 
 in actions on leases, &c. 
 
 transitory between lessor and lessee, 274, 5. 
 though land lie abroad, 274. 
 in the delinet against an executor, 275. 
 is local in the debet and detinet against executor, Q73. 
 transitory in covenant by assignee of lessor against lessee, 275. 
 
 or in covenant b} lessee against assignee of reversion, 275. 
 but local in debt by assignee or devisee of reversion against 
 
 lessee, 275. 
 local in any action by or against assignee of lessee, 275, 6. 
 
 or against executors of lessee in debet and 
 detinet, 275, 6. 
 local by statutes. 
 
 actions on what penal statutes, 276, 7. 
 
 does not relate to actions on all penal statutes, ib. 3 Anstr. 871. 
 in actions against justices of the peace, &c. 27r. 
 against parties acting under the liighway acts, &,c. 279. 
 ■where the cause of action arises in two counties, 277. 
 mode of stating the venue, 
 
 in margin wlien it aids, &c. 279, 280. 
 in the body of the declaration, 280 
 when a particular parish or place to be stated, 200. 
 in inferior court, 280, 1. 
 where the matter has occurred abroad, 281. 
 in stating matter of record, 281. 
 
 should be stated distinctly to every material fact, 281, 2. 
 when the place is or is not material, 282, 3. 384, 5. 
 in trespass and replevin, 384, 5. 
 consequences of mistake and wiien aided, 283, 4, 5. 
 in a plea in abatement not necessary, 44. 
 in a plea in bar not necessary, 517. 
 
 VERIFICATION. 
 
 when a plea should conclude with it, 537, 8. 
 when a rejilication should so conclude , 016. 
 the word verify for certify not material, 616. 
 
 VIDELICET, (see title Scilicet,) 
 effect of it, 308. 
 matter laid under it, when material is traversable, 561^- 
 
 VI ET ARMIS. 
 
 meaning of the words, 123 to 125 162. 
 
 when necess Ty and consequence of omission, 375 
 
 when improper in case, 14fi. 
 
 VIRTUTE CUJUS. 
 
 when the allegation is not traversable, 587-
 
 712 INDEX. 
 
 WAGER OF LAW. 
 
 when penniUed, 107. 
 when not, 148. 
 
 WAGES.. 
 
 when may d'^clare for g-enerally, 339. . 
 when must declare specially, 339, 340. 
 
 WALES. 
 
 pica to the jurisdiction, 429, 430. 
 
 WARRANT. 
 
 sherili 's not necessary to allege that it was under seal, 522, 3. 
 
 WARRANTY. 
 
 actions for breach of assumpsit, 92, 3. 
 
 how to declare, 342. 
 case, 139. 
 
 WARRANTY AND FINE. 
 
 when feme covert liable to be sued on, 43. 
 
 WASTE, (see title Trees.) ^ 
 
 remedies for, case, assumpsit or covenant, 14i. 
 when executors cruinot sue for, 59. 
 can be sued for, 80. 
 
 WATER AND WATER COURSE, 
 reu' -.iv for injuries to, 142. 
 when trespass and when ca'^e, 175. 
 ejectment for how to be brought, 188, 9. 
 ' tleclaration for obstructing of, 367. 
 
 WAY, RIGHT OF, ^ 
 
 remedies for injuries to, 143. 
 
 how to be described in pleading, 362. 
 
 declaration for disturbance of, how framed, 367. 
 
 not repairing of, 399. 
 pleas of, right of way must be pleaded, 495. 
 
 when to be ple:ided by metes and bounds, 609, 610. 
 replication to pleas of, how to conclude, 568, 592 
 
 when the replication should be special, 608, 9. 
 new assignment extra viam, and costs upon, 569. 609. 611, 612. 
 
 WIFE, (see title Parties to the Action and Baron and Feme.) 
 
 WINDOWS, (see title Ancient Light.i.) 
 
 WORDS, (see title Slander.) 
 
 of what English words the court take notice, 222, 3. 
 
 WORK AND LABOUR. 
 
 common counts for, when proper oi^not, 339, 340. 
 
 WITNESS. 
 
 remedy against for not attending a trial, 141. 9 East, 473. 
 
 WRIT. 
 
 pleas in abatement to, (see title Abatement,) 439. 
 
 ' END OF VOLUME I.
 
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