BENCH. precept (or "writ,") and before this day, to wit, on, &c. (day of death, or IN KING'S about it) the said E. F. died, to wit, at, &c. (the venue;) and the said A. B. then and there survived him, which the said C. D. doth not deny, but admits the same to be true; and hereupon the said A. B. complains, by his attorney, against the said C. D. of a plea of trespass on the case upon promises, (or as the plea is.) For that whereas, &c. (proceed in the usual way, laying the promises or causes of action to the plaintiff and his deceased partner, and concluding to the damage of the surviving plaintiff.) (to wit.) A. B. comes, &c. (as in the above precedent to the asterisk, Where and then proceed as follows-) "and one E. F. at the suit of the said A. B. one of the defendants and that since the issuing the said precept, (or, 'writ,') and before this day, to died after wit, on, &c. the said E. F. died, to wit, at, &c. and the said C. D. then and the issuing there survived him, which the said C. D. doth not deny," &c. (as in the above and before to the end, laying the promises by C. D. and the deceased party.) of writ, declara tion. To the damage of the said plaintiff of £- and therefore he brings his CONCLUsuit, &c. (n). SION of a declaration in King's Bench (m). *And therefore as well for our said lord the king, (or, "for the poor of the [17] said parish of ") as for himself in this behalf, he brings his suit, &c. Pledges, &c. (as above.) Declaration in debt, qui tam (p). Do. in and trespass. 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 said plaintiff of therefore he brings his suit, &c. Pledges, &c. (as above.) IN THE COMMON PLEAS. In the Common Pleas. next after in Michaelmas Term, 1 IN COM ΜΟΝ PLEAS. Middlesex, (to wit.) C. D. (s) was attached (t) to answer A. B. of a plea In assump (m) This form is proper in every action by bill, except debt, qui tam, and trespass. () As to the necessity for the word 66 suit," ," &c. see ante, vol. i. Declaration. (0) The omission of pledges is not material. 3 T. R. 157. See as to pledges, ante, vol. i. Declaration. (p) The declaration should not conclude "ad damnum" in a penal action, for a common informer is not entitled to damages. Burr. 2021. 2490.-1 Marsh. Rep. 180. 4 (4) As perhaps a common capias may be issued before the cause of action arose, the sit, case, same as in K. B. (see 1 B. & P. 342. 2 B. & or trover (r) This form is proper, whether or not (s) The addition need not be stated in the declaration. 3 B. & P. 395. If the defendant be misnamed in the process, describe as as in form, post, 19. (1) As to the distinction between the words attached and summoned, and as to this short 17 IN COMMON of trespass on the case upon promises (u); and thereupon the said A. B. (w) PLEAS. by E. F. his attorney, complains (x). For that whereas, &c. (Here state the cause of action, and describe the parties to the suit throughout thus: "the said plaintiff," ""the said defendant," without repeating the names, and conclude as Conclu- follows :) Wherefore the said plaintiff saith that he is injured, and hath sustained damage to the amount of £- and therefore he brings his suit, &c. sion. [18] * (to wit.) C. D. was summoned to answer A. B. of a plea that he In debt(y). render to him the sum of £- of lawful money of Great Britain, which he owes to and unjustly detains from him; and thereupon the said A. B. by his attorney, complains. For that whereas, &c. In debt, qui tam. In account, In covenant. (to wit.) C. D. was summoned to answer A. B. who sues as well for our sovereign lord the king, (or, "for the poor of the parish of in the county of -") as for himself in this behalf, of a plea that he render to our said lord the king, (or, "to the poor of the said parish,") and to the said A. B. who sues as aforesaid, the sum of £— of lawful money of Great Britain, which he owes to and unjustly detains from them; and thereupon the said A. B. by —his attorney, complains. For that whereas, &c. (to wit.) In account, annuity, and detinue, the defendant is stated &c. to have been summoned to answer, and the plea is described as in K. B. by In detinue. In replev in. bill. (to wit.) C. D. was summoned to answer A. B. of a plea that he keep with him the covenant made by the said C. D. with the said A. B. according to the force, form, and effect of a certain indenture, (or, "deed poll," or, "articles of agreement," or, "charter-party of affreightment," as the case may be) made between them, &c. (or, if by the assignee of the reversion, "made by the said C. D. with E. F. and his assigns," or, if by an heir, “with E. F. and his heir," or, if against the assignee of the reversion," made by G. H. for himself and his assigns with the said A. B.") and thereupon the said A. B. by his attorney, complains. For that whereas, &c. See the form in K. B. ante, 14, which may be readily adapted to an action in the C. P. (to wit.) C. D. was summoned to answer A. B. of a plea wherefore he took the cattle, (or, "goods and chattels," according to the fact) of the said A. B. and unjustly detained the same against sureties and pledges until, &c. and thereupon the said A. B. by &c. (see post, 843.) recital of the nature of the action, see 1 (w) Or, "the said plaintiff." See 2 Marsh. his attorney, complains. For that, Rep. 101.-6 Taunt. 121.-1 New Rep. 289. (x) The omission of these words, though untechnical, is not demurrable, 1 B. & P. 366. (y) See the note to the form in debt in K. B. ante, 13. In an action by or against an executor or administrator, the words in italics must be omitted. See ante, 13, n. (ƒ). MON (to wit.) C. D. was attached to answer A. B. of a plea (z), where- IN COMfore the said C. D. with force and arms, &c. broke and entered, &c. or "made PLEAS. an assault, &c." reciting the trespasses at length, but without particularizing In tresthe time, number, quantity, or value,) and other wrongs to the said A. B. there pass. did, to the great damage of the said A. B. and against the peace of our said lord the king, &c.; and thereupon the said A. B. by E. F. his attorney, complains that the said C. D. on, &c. at, &c. (repeating the trespasses, with the circumstances of time, number, quantity, and value.) modern According to 1 Saund. 318 a. note 3. The declaration need not recite the The like supposed writ as above, but may be as in case in C. P. inserting "plea of tres- in a more pass" instead of " trespass on the case," and omitting the word whereas; and form. it is now most usual and advisable to adopt such form as follows: (to wit.) C. D. was attached to answer A. B. of a plea of trespass, and thereupon the said A. B. by his attorney, complains. For that, &c. (Here state the cause of action, which may be as in the forms post, 850 to 876.) In the Common Pleas. As yet of Michaelmas Term, in the 1st year of, &c. to wit, on the To detain 6th day of December, A. D. 1830. London, (to wit.) C. D. was attached to answer A. B. of a plea of trespass on the case, upon promises, and thereupon the said A. B. by his attorney, complains. For that whereas the said defendant heretofore, and before the commencement of this suit, to wit, on, &c. at, &c. (Conclude as in other cases, stating throughout that "before the commencement of this suit, to wit, on, &c. defendant was indebted," &c.) (to wit.) C. D. was attached to answer A. and B. of a plea of trespass on the case (as the plea is); and thereupon the said A. by E. F. his attorney, comes and gives the court here to understand and be informed, that since the suing out of the original writ in this cause, and before this day, to wit, on, &c. (day of his death, or about it) at, &c. (venue) the said B. died, which the said C. D. doth not deny, but admits the same to be true; and thereupon the said A. by his attorney aforesaid complains, that whereas, &c. The same as the last, mutatis mutandis. a prisoner in custody of the warden of the Fleet in vacation, where the cause of action arises in such vaca tion. Where plaintiffs died after one of the the issuing of the writ. Where died. CONCLU SION of a declara Wherefore the said plaintiff saith that he is injured, and hath sustained damage to the amount of £— and therefore he brings his suit, &c. Wherefore, as well for our said lord the king (or, "for the poor of the par- tion in C. ish of ") as for himself in this behalf he brings his suit, &c. (z) As to the insertion here of the words "and thereupon the said A. B. complains," see 2 Marsh. Rep. 101. (a) This form will suffice in all cases except in debt qui tam, and trespass, or where the plaintiff sues in a particular character (b) See the form and note in K. B. ante, 13, 18. P. (a). Ditto in debt, qui tam (b). IN COMMON FLEAS. Do. in trespass. And other wrongs to the said plaintiff then and there did, to the great damage of the said plaintiff and against the peace of our lord the king; wherefore the said plaintiff saith that he is injured, and hath sustained damage to the amount of £— and therefore he brings his suit, &c. IN INFERI OR COURTS. In the Mayor's Court in London, by baron IN INFERIOR COURTS. Before the Mayor and Aldermen in the Chamber of the A. B. and E. F. his wife (which said E. F. (1) doth sole merchandize without her said husband, in the art or trade of within the city of London), by their attorney, complains against C. D. in a plea of trespass on the case. For that whereas the said C. D. on, &c. at the parish of in the city of and feme, feme being London, and within the jurisdiction of this court, was indebted to the said E. feme sole F. then and now being the wife of the said A. B. and then and now trading within the and merchandizing within the said city, in the art or *trade aforesaid, alone city (c). and without her said husband, according to the custom of the said city, in the [*23] sum of £― of lawful, &c. or, &c. (Here state the cause of action, laying the promises to E. F. and describing her "as such sole trader as aforesaid." trader Declara tion baron and (Title of the Court as above.) A. B. by against which said E. feme, feme trade of a being upon promises. sole trader his attorney, complains against C. D. and E. F. his wife, F. doth sole merchandize without her husband, in the art or within the city of London, in a plea of trespass on the case For that whereas the said E. F. so being such sole trader as within the aforesaid, on, &c. in London, &c. then and still being the wife of the said C. city. D. and then and still trading and merchandizing within the said city, in the art or trade aforesaid, alone and without her said husband, according to the custom of the said city, as such sole trader as aforesaid, was then and there indebted, &c. Com mence. conclusion Borough of Southwark, (to wit.) A. B. by his attorney, complains against C. D. in a plea of trespass on the case upon promises. For that ment and whereas the said defendant, on, &c. to wit, at Southwark, in the county of of declara- Surrey, and *within the jurisdiction of this court, was indebted, &c. &c. tion in the (Stating every material fact to have happened" at Southwark aforesaid, withBorough in the county and jurisdiction aforesaid," and conclude as in the King's Bench, by bill, ante, page 16.) Court of Southwark (d ). [*24 ] (c) As to this custom, see 2 B. & P. 93. (d) See Plead. Assist. 385. Morg. 174. (1) In Pennsylvania she may sue and be sued, plead and be impleaded at law, in any court, without naming her husband. Act of 22d Feb. 1718. 1 Sm. Laws, 99. See Burke v. Winkle, 2 Serg. & Rawle, 189.} *BY AND AGAINST PARTICULAR PERSONS. Ellenborough. ATTORNIES, &c. Michaelmas Term, 1 Will. 4. tion by an attorney in K. B. (a). (to wit) (b). A. B. gentleman, one of the attornies of the court of Declaraour lord the now king, before the king himself, being present here in court, in his own person, according to the liberties and privileges of the said court for such attornies, and other officers of the court aforesaid, from time immemorial used and approved of in the same court, complains of C. D. being in the custody, &c.—2 Saund. 1, n. 1. (Same conclusion as in other cases.) Pledges, &c. (c.) (to wit.) A. B. complains of C. D. gentleman, one of the attornies Bill of the court of our lord the now king, before the king himself, being present against do. here in court in his own person, of a plea of trespass on the case (or as the plea is). For that whereas, &c. (Instead of the words at the end," and therefore he brings his suit, &c." say "he prays relief," &c. (d). *Ellenborough. Pledges, &c. tion when the cause of action accrues, [*30] Michaelmas Term, 1 Will. 4. (to wit.) Be it remembered, that on the day of (f), in Declara the 1st year of the reign of our lord the now king, A. B. brought into the office of the clerk of the declarations of the court of our said lord the king, before the king himself, according to the course and practice of the same court, his certain bill against C. D. gentleman, one of the attornies of the same court, and filed the same bill as of Michaelmas Term, in the first year of the in vacareign of our said lord the king, which said bill follows in these words, that is tion (e). (to wit.) A. B. complains (as ante, 29.-See 5 T. R. 325. 2 to say, Saund. 1, n. 1.) Ellenborough. Michaelmas Term, 1 Will. 4. and the bill is filed gainst the (g). marshal (to wit.) A. B. complains of C. D. Esquire, marshal of the Marshal- Do. asea of our lord the now king, before the king himself, present here in court, in his own proper person, of a plea of trespass on the case (or as the plea is). For that whereas, &c. (Here state the cause of action, and conclude as follows :) To the damage of the said A. B. of £— and therefore he prays relief, &c. Pledges, &c. (a) See form, Plead. A. 197. (b) As to venue in action against attornies, see Tidd's Prac. 9th edit. 80. (c) See forms, 2 Rich. C. P. 90.-Plead. A. 157. (d) The omission of these words is not a cause of demurrer.-Andr. Rep. 247. (e) See ante, vol. i.Joinder of Actions. The essoign day is a day of the Term so as to file this bill without a memorandum; and how VOL. II. 3 plaintiff is to act in such case as to notice to (f) The day of filing the bill, but though (g) The like in debt, see post, 419. If the bill be filed in vacation, the form will be as that against an attorney, supra, mutatis mutandis. |