THE TITLE, AND HOW ACQUIRED. Title by devise in fee-simple before 1st Ja nuary, 1838. (s) Title to a chattel or copyhold payments, duties, services or customs whatsoever, which according to the custom of the said manor, the said premises thereby released, or any part thereof, had been or otherwise would be subject or liable to, or which otherwise ought to be paid or performed for or in respect of the same premises, or any part thereof, as copyhold holden of or as parcel of the said manor, as by the said indentures of bargain and sale and release (reference being thereto had) will fully appear. By virtue of which indentures of bargain and sale and release, the said S. B. and the plaintiff became and were seised in their demesne as of fee of and in the said reversion of the said premises demised to the said J. expectant on the determination of the said term to him granted, freely, clearly and absolutely enfranchised, acquitted and discharged as last aforesaid. And the said E. F. being so seised as aforesaid, he the said E. F. afterwards, to wit, on &c., duly made and published his last will and testament in writing (1) bearing date &c., and signed by him the said E. F. and attested and subscribed in the presence of the said E. F. by three credible witnesses, according to the form of the statute in such case made and provided, (u) and thereby (amongst other things) gave and devised the said demised premises, with the appurtenances, unto the plaintiff, to hold unto and to the use of the plaintiff and his heirs and assigns for ever. And the said E. F. afterwards, to wit, on &c., died so seised of the reversion of and in the said demised premises, with the appurtenances as aforesaid, without altering his said will as to his said devise of the said demised premises with the appurtenances. Whereupon and whereby (v) the plaintiff then became and was seised of the said reversion in his demesne as of fee. And being so seised, &c. And the defendant being so possessed of the said demised premises, with the appurtenances, and the said E. F. being so possessed of the said reversion as aforesaid, afterwards, and during the said term by the said indenture granted, to wit, on &c., the said E. F. duly made and published his last will and testament in writing, bearing date the same day and year last aforesaid, and thereby (amongst other things) gave and bequeathed the said reversion of and in the said demised premises, with the appurtenances, unto the plaintiff and his assigns, and by his said will, he the said E. F. then appointed G. H. executor thereof. And afterwards, to wit, on &c., he the said E. F. died so possessed of the said reversion of and in the said demised premises, with the appurtenances, without revoking or altering the said will with respect to the said bequest. After whose death, to wit, on &c., the (s) See the forms, 2 Saund. 235, 236; 1 Saund. 253; Lil. Ent. 133; 7 East, 128; 3 Wils. 130. See a devise for the residue of a term pleaded, Morg. 455, 46). See the form stating a title by devise of a copyhold and surrender to the use of the will, ante, 423. (t) The will must be shown to have been made in writing, in pursuance of the statutes 32 Hen. 8, c. 1, and 34 Hen. 8, c. 5, 1 Saund. 276 a, n. 2. (u) 29 Car. 2, c. 3, s. 5, but neither this nor the statute of Wills need be referred to; Dyer, 85 b. It is not necessary in pleading a will to state that the solemnities required by this statute against frauds have been observed; see the case of Davis v. Reevee, Vern. & Scriv. 497; reported 1 Bridgm. Equity Digest, 2d edit. 611, pl. 630. (v) No assent of the executor is to be stated in the case of a devise of a freehold interest; Co. Lit. 111 a; 1 Saund. 278, n. 5; 3 East, 120; 7 East, 324. (x) This form is framed precisely as in the case of Mackay v. Mackreth, 2 Chit. Rep. 461. See also 1 Saund. 278; 2 Id. 21. said G. H. duly proved the said last will and testament, and took upon himself the burthen of the execution thereof, (y) and then assented (≈) to the said bequest of the said reversion to the plaintiff, whereupon and whereby the plaintiff then became and was possessed (a) of the said reversion of and in the said demised premises, with the appurtenances. And being so possessed, &c. THE TITLE, AND HOW ACQUIRED. nuary, 1838.(b) And the said E. F. being so seised as aforesaid, he the said E. F. hereto- Title by devise fore and after the 1st day of January, A. D. 1838, to wit, on &c., [date of the since 1st Jawill] duly made and published his last will and testament in writing, bearing date the day and year last aforesaid, and which said will was then signed at the foot [or "end"] thereof by the said E. F. in the presence of two witnesses present at the same time, and was then attested and subscribed by such witnesses in the presence of the said E. F., according to the form of the statute in such case made and provided. And thereby, &c. [set out the devise and death, as in the last form but one, if it be in fee simple, or as in the last form, if it be of a chattel real. (y) It is necessary to state the proof of the will; 2 Stra. 716. See the precedent, 1 Saund. 106, 107. See form where one of the devisees disclaimed by deed the estate devised, 3 Bar. & Adol. 31. (*) In the case of a bequest of a chattel real, the legatee must, in pleading, aver the assent of the executor, which is necessary to vest the legal interest in him; see 1 Saund. 278, n. 5; see supra, n. (v). (a) Ante, 414; and 2 Saund. 21. (b) The 1 Vict. c. 26, s. 9, enacts that Ino will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned; that is to say, it shall be signed at the foot or end thereof by the testator, or by some person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." DECLARATIONS IN DETINUE. IN DETINUE. Declaration in detinue on a bailment to be re-delivered on request. (a) Conclusion. Declaration in detinue on a supposed finding. (h) In the Queen's Bench, [or "Common Pleas," or "Exchequer of Pleas."] A. D. (b), (to wit). A. B., by --, his attorney, complains of C. D., who has been summoned to answer the plaintiff in an action of detinue for certain goods and chattels [or "deeds and writings," according to the fact,] of the plaintiff, of great value, to wit, of the value of £—, which he unjustly detains from him. For that whereas the plaintiff heretofore, to wit, on &c., delivered to the defendant certain goods and chattels, to wit, &c. (c) of the plaintiff, of great value, (d) to wit, of the value of £, to be re-delivered by the defendant to the plaintiff when the defendant should be thereunto afterwards requested. (e) Yet the defendant, although he was afterwards, to wit, on the day and year aforesaid, requested by the plaintiff so to do, (ƒ) hath not as yet delivered the said goods and chattels, or any or either of them, or any part thereof, to the plaintiff, but hath hitherto and still doth neglect and refuse so to do, and unjustly detains the same from the plaintiff. To the damage of the plaintiff of £, (g) and thereupon he brings suit, &c. For that whereas the plaintiff heretofore, to wit, on &c., was lawfully possessed as of his own property of certain goods and chattels, to wit, &c. [here enumerate them] of great value, to wit, of £; and being so pos (a) Com. Dig. Pleader, 2 X. 2; mode of declaring, 1 New Rep. 140; see the forms in detinue, Morg. 581; 4 T. R. 229; 7 Went. 647; 3 Woodd. 106; 1 New Rep. 140; Willes, 119, and in trover, post. When this action lies in general, and its properties, see ante, vol. i. Index, "Detinue;" 1 Tyr. 445; 1 Crom. & Jerv. 565. (b) The venue is transitory; Com. Dig. Action, N. 6, unless against justices of the peace, &c. The pleading rules, Hil. T. 4 W. 4, direct that description of venue shall not be repeated in the body of a declaration. (c) As to the certainty necessary in the description of the chattels, 2 Saund. 47 b; Co. Lit. 286 b; Bac. Ab. tit. Detinue, B.; Com. Dig. tit. Pleader, 2 X. 2. The date of a deed, &c. need not be stated; 1 Wils. 116; see Willes' Rep. 126; 12 Mod. 9; 2 Vent. 78. (d) The declaration may mention the value of every particular, or of all in gross, Com. Dig. tit. Pleader, 2 X. 2; 2 Bla. Rep. 853; and the latter is most usual. Formerly a distinction was taken as to price and value in the description of animate and inanimate chattels, Cro. Jac. 130; but this is no longer attended to, Bac. Ab. tit. Trover, F.; F. N. B. 88, M.; and value appears in all cases to be the preferable description. (e) The terms and limited object of bailment should be truly stated; see the forms, 3 Woodd. 106; 1 New Rep. 140; Willes' Rep. 119; but in Gladstone v. Hewitt, 1 Tyr. 445, and 1 Cromp. & Jer. 565, S. C., it was held, that although the declaration be on a bailment to re-deliver on request, and the defendant plead that it was a bailment to secure the repayment of a loan, plaintiff may reply a tender and wrongful detention without being guilty of a departure. (J) The forms in 1 New Rep. 140; 3 Woodd. 106; Willes, 119; do not state a special request; but from Willes, 118, 5 T. R. 409, it should be averred, when a request to re-deliver is essential before action; and see the form in 7 Wentw. 635, 636, 637. (g) The damages here to be stated should be sufficient to cover the utmost value of the goods and damages that a jury might give for the detention. (h) Com. Dig. Pleader, 2 X 2; see the forms, 1 New Rep. 140; Willes' Rep. 118; 4 T. R. 229, and the notes to the preceding count. sessed, the plaintiff afterwards, to wit, on &c., aforesaid, casually lost the said IN DETINUE. goods and chattels out of his possession, and the same afterwards, to wit, on &c. aforesaid, came to the possession of the defendant by finding; (i) Yet the defendant, well knowing the said goods and chattels to be the property of the plaintiff, and of right to belong and appertain to him, hath not as yet delivered the said goods and chattels, or any or either of them, or any part thereof, to the plaintiff, although he was afterwards, to wit, on &c., requested by the plaintiff so to do, but hath hitherto wholly refused so to do, and hath unjustly detained, and still doth unjustly detain the same from the plaintiff. To the damage of the plaintiff of £- (k) and thereupon he brings suit, &c. (to wit). A. B., by Y. Z. his attorney, complains of C. D., who has been summoned to answer the plaintiff in an action of debt and of detinue. For that whereas [here insert the counts in debt, and the conclusion, as ante, 286, 291, omitting the words "to the damage, &c.," and then insert the counts in detinue as in the last form to the end, and conclude "To the damage," &c. (i) This is not traversable; 1 New Rep. 140; ante, vol. i. Index, "Detinue;" Doct. Plac. tit. Detinue. (k) As the judgment in this action is conditional to recover the specific chattel, or in case it be not forthcoming, damages for detaining the same, Cro. Jac. 628; Com. Dig. Pleader, 2 X. 12, a sum should be here inserted to cover the real value and utmost damages that a jury might give. (1) That debt and detinue may be joined, see 2 Saund. 117 b; Bro. Joinder in Action, 97; and for the forms, see Brownl. Red. Debt and detinue in the same declaration. (1) DECLARATIONS IN CASE. FOR KEEPING For keeping a I. FOR TORTS TO THE PERSON. FOR KEEPING MISCHIEVOUS ANIMALS. Commencement, ante, 13.] For that whereas the defendant heretofore, to wit, on &c. [any day about time of injury], and from thence until and at the time of the injury and damage being sustained by the plaintiff as hereinafter mentioned, wrongfully and injuriously did keep a certain dog, he the defendant during all that time well knowing that the said dog then was and continued to be prone and used and accustomed* to attack, bite, and injure mankind; (b) and which said dog afterwards, and whilst the defendant so kept the same as aforesaid, to wit, on &c. aforesaid, by reason of the premises, did then attack and bite the plaintiff, and did then greatly lacerate, hurt and wound one of the legs of the plaintiff; and thereby the plaintiff then became and was sore, lame and disordered, and so remained and continued for a long time, to wit, for the space of six months then next follow. ing, during all which time the plaintiff thereby suffered and underwent great pain, and was thereby during that time hindered and prevented from performing and transacting his lawful affairs and business by him to be performed and transacted; and also by means of the premises, the plaintiff was thereby then put to and did incur and sustain great expense, costs, and charges, in the whole amounting to the sum of £- in and about endeavouring to be cured of the said wounds, sickness, lameness, and disorder so occasioned as aforesaid, and hath been and is by means of the premises otherwise greatly injured and damnified. [Before the pleading rules, Hil. T. 4 W. 4, reg. 5, prohibiting more than one count on the same transaction, it was usual to add a count, stating that the dog "was of a ferocious and mischievous nature," and another for not keeping the dog properly secured, and another for not properly feeding him, according to the facts. To the damage of the plaintiff of £, and thereupon he brings suit, &c. (a) As to the liability of the owner of animals for mischief done by them, see ante, vol. i. Index, "Animals;" 1 Chitty's Burn, J., tit. "Dogs;" Roscoe on Evidence, 219; Com. Dig. Pleader, 2 P. 2; Com. Dig. Action upon the Case for Negligence, A. 5; Harrison's Index, tit. Case, VII. 2; 3 C. & P. 138; 9 East, 281; 2 Stra. 1264; 4 Campb. 198; 1 Stark. 285; 1 B. & Ald. 620; 1 Esp. 203. See the forms, Plead. Ass. 117; Morg. 443; 8 Wentw. Index, 23. (b) A scienter must be alleged and proved; 1 M. & Sel. 238; Dyer, 25 b, 29 a; 2 Salk. 662; 2 Stra. 1264; 1 Lord Raym. 606; 12 Mod. 332; 1 Lutw. 90; Cro Car. 487; 2 C. M. & R. 496. What is or is not sufficient evidence of the defendant's knowledge of the propensity, see 2 Stra. 1264; 2 Esp. Rep. 482; Com. Dig. Action on the Case for Negligence, A. 5; 4 Camp. 198; 1 Stark, 285; 3 C. & P. 138. It may be advisable, according to the facts, to frame a count for not keeping the dog properly secured; 2 Esp. Rep. 482; or properly fed; see the precedents, Pl. Ass. 105; 2 Rich. C. P. 173; Morg. 442; Lil. Ent. 29. An averment that the dogs were accustomed to bite sheep, is not supported by proof that they were ferocious, and used to bite men; 1 B. & Ald. 621; 2 Stark. 214, S. C. Semble, it would be sufficient to state that the dog was of a "ferocious and mischievous nature;" 1 B. & Ald. 621. |