BENCH. then and there survived him, which the said C. D. doth not deny, but admits IN KING'S 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.) 6 (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 defendand that since the issuing the said precept, (or, writ,') and before this day, to ants died wit, on, &c. the said E. F. died, to wit, at, &c. and the said C. D. then and after the there survived him, which the said C. D. doth not deny," &c. (as in the above to the end, laying the promises by C. D. and the deceased party.) writ, and before dec laration. To the damage of the said plaintiff of £-and therefore he brings his CONCLUsuit, &c. (n). Pledges to prosecute (o) John Doe, and Richard Roe. BION of a declara. tion in King's *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 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 — and trespass. 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 MON 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. (n) As to the necessity for the word "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 same as in K. B. (see 1 B. & P. 342. 2 B. & sit, case, or trover P. 234) it may be advisable to intitule the (r). (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 in form, post, 19. (t) As to the distinction between the words attached and summoned, and as to this short recital of the nature of the action, see 1 Saund. 318, n. 3; ante, vol. i. Declara. IN COM MON PLEAS. Conclu sion. [*18] In debt (y). In debt, qui tam. In ac of trespass on the case upon promises (u); and thereupon the said A. B. (w) 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 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. (to wit.) C. D. was summoned to answer A. B. of a plea that he 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. his attorney, complains. For that whereas, &c. by in (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 ofthe 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 count &c. to have been summoned to answer, and the plea is described as in K. B. by bill. In covenant. In detinue In replev in. (to wit.) C. D. was summoned to answer A. B. of a plea that he keep with him a covenant made by the said C. D. with the said A. B. according to the force, form, and effect of a certain indenture, (or, “deedpoll," 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 his attorney complains. For that &c. (see post, 843.) Stating defendant was summoned, when he 27. (u) In case of trover, omit the words in italics. (w) Or, "the said plaintiff." See 2 Marsh. Re. 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 action by or against an executor or administrator, the words in italics must be omitted. See ante, 13, n. (ƒ). In tres (to wit.) C. D. was attached to answer A. B. of a plea (z), IN COMwherefore the said C. D. with force and arms, &c. broke and entered, &c. MON PLEAS or "made an assault, &c." reciting the trespasses at length, but without pass. particularizing the time, number, quantity, or value,) and other wrongs to the said A. B. there 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.) in a more According to 1 Saund. 318 a. note 3. The declaration need not recite The like the supposed writ as above, but may be as in the case in C. P. inserting modern "plea of trespass" instead of " trespass on the case," and omitting the form. word whereas; and it is now most usual and advisable to adopt such form as follows: (to wit.) C. D. was attached to pass, and thereupon the said A. B. by that, &c. (Here state the cause of action, 850 to 876.) In the Common Pleas. answer A. B. of a plea of tres his attorney, complains, For which may be in the forms post, As yet of Michaelmas Term, in the 1st year of, &c. to wit, on the [*20] To detain a prisoner in custody of the war den of the 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 Fleet his attorney complains. For that whereas the said defendant heretofore, and before the commencement of this suit, to wit, on, &c. at, &c. (Con- tion clude as in other cases, stating throughout that "before the commencement where the of this suit, to wit, on, &c. defendant was indebted," &c.) cause of action arises in such vaca tion. Where one of the plaintiffs died after (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 (venue) the said B. the issudied, which the said C. D. doth not deny, but admits the same to be ing of the true; and thereupon, the said A. by his attorney aforesaid complains, that whereas, &c. The same as the last, mutatis mutandis. 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 lord the king (or, "for the poor of the parish 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 writ. Where one of the defendants died. CONCLU. SION of a declara tion in C. P. (a). Ditto in debt, qui the plaintiff sues in a particular character tam (b). as executor, &c. (b) See the form and note in K. B. ante, 13, 18. IN COM MON PLEAS Do. in 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; trespass. 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 IN INFERIOR COURTS. OR COURTS. In the Court, London, by baron and feme, of 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 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 in the city of London, and within the jurisdiction of this court, feme being feme was indebted to the said E. F. then and now being the wife of the said A. sole trader B. and then and now trading and merchandizing within the said city, in within the the art or *trade aforesaid, alone and without her said husband, according city (c). [*23] to the custom of the said city, in the 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." Declaration (Title of the Court as above.) against A. B. by his attorney, complains against C. D. and E. F. his baron and wife, which said E. F. doth sole merchandize without her husband, in the feme,feme art or trade of a within the city of London, in a plea of trespass on being sole trader the case upon promises. For that whereas the said E. F. so being such within the sole trader as aforesaid, on, &c. in London, &c. then and still being the city. wife of the said C. 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'ce ment and conclusion of declara tion in the Borough South wark, (d). [*24] 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 whereas the said defendant, on, &c. to wit, at Southwark, in the county of Surrey, and *within the jurisdiction of this court, was indebted, &c. &c. (Stating every material fact to have happened "at Southwark aforesaid, within the county and jurisdiction aforesaid," and conclude as in the King's Bench, by bill, ante, page 16.) (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. 1Sm. Laws, 99. See Burke v. Winkle, 2 Serg. & Rawle, 189. 1 *BY AND AGAINST PARTICULAR PERSONS. Ellenborough. ATTORNIES, &c. Michaelmas Term, 1 Will. 4. (to wit.) (b). A. B. gentleman, one of the attornies of the court of our lord the now king, before the king himself, being present here in Declaration by an court, in his own person, according to the liberties and privileges of attorney the said court for such attornies, and other officers of the court aforesaid, in K. B. from time immemorial used and approved of in the same court, complains (a). of C. D. being in the custody, &c.-2 Saund. 1, n. 1. (Same conclusion as in other cases.) Pledges, &c. against (to wit.) A. B. complains of C. D. gentleman, one of the attor- Bill nies of the court of our lord the now king, before the king himself, being do. (c). present 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. Michaelmas Term, 1 Will. 4. the cause [*30] (to wit.) Be it remembered, that on the day of (f), Declarain the 1st year of the reign of our lord the now king, A. B. brought into tion when the office of the clerk of the declarations of the court of our said lord the of action king, before the king himself, according to the course and practice of the accrues, same court, his certain bill against C. D. gentleman, one of the attornies bill is filed of the same court, and filed the same bill as of Michaelmas Term, in the in vaca. first year of the reign of our said lord the king, which said bill follows in tien (e). these words, that is to say, (to wit.) A. B. complains (as ante, 29. -See 5 T. R. 325. 2 Saund. 1, n. 1.) Ellenborough. Michaelmas Term. 1 Will. 4. and the the mar (to wit.) A. B. complains of C. D. Esquire, marshal of the Do. Marshalsea of our lord the now king before the king himself, present here against in court, in his own proper person, of a plea of trespass on the case (or shal (g). 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. (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; VOL. II. 3 Pledges, &c. and how plaintiff is to act in such case as to (f) The day of filing the bill, but though (2) 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, |