DECLARATIONS IN REPLEVIN. DECLARATIONS In the Queen's Bench, [or " Common Pleas."] (b) Vict. and A. D. day of Term, (c) in (to wit.) (d) C. D., the defendant in this suit, was summoned to answer A. B., the plaintiff in this suit, of a plea, wherefore he took the cattle, [or "the goods and chattels," or "the corn,"] of the plaintiff, and unjustly detained the same against sureties and pledges, until &c., and thereupon the plaintiff, by E. F. his attorney, complains. For that the defendant, on the A. D. ——, (e) in the parish of the county of, in a certain dwelling-house there, (f) [or if on land, “in a certain close there, called day of —, in or common there, called ;"(6)] took the cattle, (h) [or "goods and chattels,"] to wit, ——— (i) of the plain (a) As to this action in general, ante, vol. i. Index. Replevin; and as to the declaration in replevin, see Wilkinson on Replevin; Com. Dig. Pleader, 3 K. 10; Bac. Ab. Replevin; 8 Went. Index, ccxix.; 2 Saund. 194 a, 282, 310; Boote's Suit at Law, 237; Morg. 590; 2 Rich. C. P. 344, 347, 368; Plead. Assist. 463, 471, 475, 479. (b) The Uniformity of Process Act, 2 W. 4, c. 39, does not extend to actions of replevin removed into either of the superior Courts. (c) As to the title of the term, see ante, 11, note (i) After the removal of a replevin cause, the declaration must be intituled of the term in which the writ is returnable, or that of the appearance; 5 Taunt. 771; 1 Marsh. 341, S. C. (d) The venue of this action is local, and the place is material and traversable; 1 Saund. 347, note 1; see infra, note (ƒ). (e) The precise day is not material. The plaintiff may, in the same declaration, count for several takings, part at one day and place, and part at another day and place; F. N. B. 68. (f) The action of replevin requires more certainty in the description of the place where the distress was taken than that of trespass, the place being material and traversable, (Hob. 16; Willes, 475; 2 Wils. 354; 8 Wentw. 142, 144; 2 M. & P. 78;) and if the defendant plead non cepit, and the plaintiff cannot prove a caption, or that the defendant had the cattle, &c. in the place stated in his declaration, he will be nonsuited, (1 Stra. 507, 508; 2 Mod. 199; 1 Saund. 347, n. 1, acc.; 2 Wils. 354; Gilb. 3d edit. 166, 167; semble contrà,) and if the place be omitted, the defendant may demur; 2 Wils. 354. See the form of demurrer, 8 Wentw. 142, 143; and it is not sufficient merely to state that the caption was made in a parish or town, but it is usual to add that the cattle, &c. were taken in a certain place there, called, &c.; Cro. Eliz. 896; Hob. 16; Moore, 678; 1 Brownl. 186; 1 Sid. 9, 10, 20; Carth. 186; Willes, 475; 2 Wils. 354; 8 Wentw. 142, 144; and in a case, where the declaration alleged the taking to be "in the parish of A. in the county of Kent, in a certain close there," it was considered bad on special demurrer, for not setting out the name of the close or its abuttals; 2 M. & P. 78. If the particular place be omitted, the objection will be aided by the defendant's pleading over, or after verdict; id. ibid.; Willes, 476. If the defendant lead or have the cattle, &c. through or in a close or place different to that in which they were originally taken, the plaintiff may state the caption to have been in either, though it is more usual to insert the place where the cattle were first taken; 2 Wils. 354; 1 Saund. 347, n. 1; Com. Dig. Pleader, 3 K. 13. If several cattle be taken, some in one place and some in another, it should be shown in the declaration how many were taken in each; Com. Dig. Pleader, 3 K. 10. (g) It seems necessary to state the name of the close or its abuttals; 2 M. & P. 78. (h) If standing corn, &c. be taken under the 11 Geo. 2, c. 19, s. 8, the description will be as follows: " in a certain field there, called took the corn of the said plaintiff, to wil, -acres of standing wheat, there then growing and being, and divers, to wit, cart loads of other wheat of the said plaintiff, there then also being, of great value, to wit, &c. ut supra." If fixtures be taken, say, divers goods, chattels and effects;" see 4 B. & A. 206; 4 T. R. 504. (i) The description and number of the cattle or goods taken should be stated with certainty as to the degree of certainty, see 2 Saund. 74b; Rep. temp. Hardw. 119; 2 Stra. 1015; Com Dig. Pleader, 3 K. 10; Bac. Ab. Replevin; 7 Taunt. 642; 1 Moore, 386, S. C.; ante, vol. i. A declaration for taking divers "goods and chattels" of plaintiff, IN REPLEVIN. tiff, (k) of great value, to wit, of the value of £—, (1) and unjustly de- DECLARATIONS tained the same, against sureties and pledges, until &c. (m) Wherefore the plaintiff saith that he is injured, and hath sustained damage to the amount of £———, (n) and thereupon he brings his suit, &c. In the County Court of In the County Court of (to wit.) C. D. was summoned to answer A. B. of a plea, wherefore he took the cattle, [or "the goods and chattels," or "the corn,"] of the said A. B., and unjustly detained the same against sureties and pledges, until &c., and thereupon the said A. B., by E. F. his attorney, complains. For that the defendant on the A. D. in the parish of in the county of day of without specification or enumeration, is bad for uncertainty, and though judgment pass by default for plaintiff, the defect is not cured by the statute of jeofails, 4 Anne, c. 16; 7 Taunt. 642; 1 Moore, 386, S. C. (k) The property must be correctly stated, and several persons having a distinct interest cannot join; Com. Dig. Pleader, 3 K. 10; ante, vol. i. 183. (1) It is not necessary in replevin in the detinuit, which is now the usual form of action, to state the price or value of the cattle or goods; see the reason, 2 Saund. 320, note 1; aliter, if the declaration be in the detinet, Com. Dig. Pleader, 3 K. 10. (m) This is the proper form when the cattle have been replevied; Com. Dig. Pleader, 3 K. 10. If the place where the cattle were first taken be doubtful, it has been the practice (a) Any sum sufficient to cover the amount (0) See forms, 2 Rich. C. P. 346; Co. Ent. 314 b., and the notes to the last form, which are applicable. (p) As to the necessity for this allegation, see Co. Ent. 314 b; 2 Rich. C. P. 346; 1 Saund. 74, n. 1. (4) In replevin by plaint the sheriff may hold plea in his County Court to any amount, though above forty shillings, by virtue of the statute of Marlbridge; 2 Inst. 139, 312; 2 Rich. C. P. 347. DECLARATIONS IN TRESPASS. COMMENCE MENT AND CON CLUSION. COMMENCEMENT AND CONCLUSION. Commencement In the Queen's Bench, [or "C. P.," or "Exchequer of Pleas."] and conclusion in Q. B., C. P. or Exchequer. The A. D. his attorney, day of (to wit.) (a) A. B., (the plaintiff in this suit,) by complains of C. D., (the defendant in this suit,) who has been summoned to answer the plaintiff in an action of trespass. the day of in the year of our Lord &c. made an assault, (d) &c. [here state the trespass according to the facts, and For that (b) the defendant on (c) with force and arms, (a) In trespass to persons or to personal property the venue is transitory, unless in actions against justices of the peace, consta bles, &c.; ante, vol. i. Index, tit. Venue; 21 Jac. 1, c. 12. But in trespass to real property the venue is local, and in such an action, if there have been any removal of a personal chattel, it was usual, before the pleading rules Hil. T. 4 W. 4, reg. 5, to add a count de bonis asportatis, in order to avoid the danger of misdescription in the first count; 1 T. R. 479. " (b) The word "whereas," or wherefore." the defendant committed the trespass, would in Q. B. be bad on special demurrer; ante, vol. i.; 2 Salk. 636; 1 Stra. 621; Com. Dig. Pleader, C. 86; Andr. 282. But when the proceedings were by original, or if in C. P. the writ used to be set out at length, the count-part may be aided by the prior recital of the supposed writ, and even a special demurrer could not then be supported; id. ibid.; 1 Wils. 99; Barnes, 452; 2 Wils. 203. But Reg. Gen. Hil. T. 2 W. 4, r. 4, directs that long recitals of the writ shall be abandoned. (c) In trespass for an assault, a declaration charging" that the defendant, on such a day, and on divers other days and times, &c. made an assault," would be bad on special demurrer, as one assault cannot be made on different days; 6 East, 391, 395. Though in trespass for debauching a daughter, or for crim. con., the rule is otherwise; 6 East, 391; see post, 652, 653. And if the declaration state that the defendant on divers days, &c. assaulted the plaintiff, it would not, it seems, be bad. In trespass to lands, or for cutting down or carrying away trees, or for killing hares, &c. it may be stated that the defendant committed the trespasses on divers days and times, but trespass cannot be laid of loose chattels with a continuando, Salk. 638, 639; Bul. N. P. 86; though it may "on divers days and times;" 3 Bla. Com. 212; 1 Ld. Raym. 240; Com. Dig. Pleader, 3 M. 10; 1 Saund. 24, n. 1; ante, vol. i. Index, tit. Time. Formerly it was usual to declare with a continuando, as in 1 Saund. 24; 2 Rich. C. P. 423; but now it is more usual in trespass to land to state, "that the defendant, on such a day, in such a year, and on divers other days and times between that day and the commencement of this suit, with force and arms, &c. committed the trespasses," and the plaintiff may give in evidence any number of trespasses committed during the specified time. If only one day be mentioned, the plaintiff will not be permitted to give evidence of more than one act of trespass, and where the trespasses are stated, as above, to have been committed on divers days and times between such a day and such a day, if the plaintiff intend to give evidence of repeated acts of trespass, he must confine himself to the time in the declaration, and therefore it is in general advisable, in trespass to real property, to lay the first day so far back as to be certainly anterior to the first act of trespass; however, as the precise day is not material in trespass, either to the person, personal or real property, the plaintiff may succeed upon the trial as to any one single act of trespass, though committed prior to the time mentioned in the declaration; Bul. Ni. Pri. 86; 1 Saund. 24, n. 1; 2 Saund. 5, n. 3; Co. Lit. 283 a; Com. Dig. Pleader, C. 19; 1 Stark. 351; ante, vol. i. tit. Trespass. If there were several trespasses, plaintiff should state them, for if the declaration avers a single act of trespass, which defendant justifies, there can be no new assignment; 7 Taunt. 156. (d) A trespass should be stated to have been committed vi et armis, Com. Dig. Pleader, 3 M. 7; but the omission will be aided unless as in the subsequent forms, and conclude as follows:] And other wrongs (e) to the plaintiff then did, against the peace of our lady the now queen (ƒ) and to the damage of the plaintiff of £-, (g) and thereupon he brings suit, &c. COMMENCE MENT AND CON- Before the pleading rules Hil. T. 4 W. 4, reg. 5, it was usual in trespass Second or subas well as other actions, after stating the cause of action, whether an assault sequent counts. or false imprisonment, or other forcible injury, with great particularity, to add one or two other counts more general. But now that rule prohibits more than one count for the same cause of action, and varying counts are inadmissible. I. TO PERSONS. ASSAULT AND BATTERY. Commencement, ante, 648.] For that (i) the defendant, on &c. (k) with force and arms, (1) &c. assaulted (m) and beat the plaintiff'; and then with great force and violence (n) seized and laid hold of the plaintiff by his nose; (0) and then plucked, pulled and tore divers large quantities of hair from off the head of the plaintiff; and then with a stick, and with his fists, gave and struck the plaintiff a great many violent blows and strokes on and the defendant demur specially, 2 Saund. 81, n. 1; ante, vol. i. Index, tit. Vi et Armis. When the declaration states a wrong which is the subject of an action of trespass, it is a good count in trespass after verdict, although it contains no allegation of vi et armis, and is in point of form framed in case for the consequential injury; Hudson v. Nicholson, 5 M. & W. 437. (e) As to the alia enormia, see ante, vol. i. Index, tit. Alia Enormia; Cro. Jac. 664. (ƒ) The declaration in trespass should be contra pacem, Com. Dig. Pleader, 3 M. 8, but the omission is aided unless the defendant demur specially; ante, vol. i. Index, tit. Contra Pacem. (g) Any sum sufficient to cover the amount of the damages, which it may be probable the jury will give. (h) In using this and the other precedents in trespass, only such parts of them as are really applicable to the particular case should be inserted in the declaration, for it is very injudicious to state a more serious or injurious assault or battery than really occurred and can be proved; see note (o), infra; see the forms 9 Wentw. Index, iii. to ix. ; and observe the notes to the forms, ante, 648. The principal formal allegations necessary to be attended to in framing a declaration for an assault or other trespass, are, 1st. The statement of the time when the trespass was committed. 2dly. The insertion of the words vi et armis. 3dly. The venue or place where the in. jury was committed, but which since the pleading rules Hil. T. 4 W. 4, is only inserted in trespass to real property. 4thly. That the matter injured was the property of the plaintiff, and its value. 5thly. The insertion of the words "alia enormia.' 6thly. The words "contra pacem;" and 7thly. The conclusion ad damnum, &c. In other respects the declaration in trespass should be a full and accurate statement of the injuries in the order in which they were committed, and of all the consequent damages; and no allegation should be inserted, unless there be a probability of its being proved in evidence. (i) The word "whereas" would be improper, see ante, 648, note (b). (k) On "divers days and times" would not be improper in this case, where the word "assaulted" is used, ante, 648, note (c); see 6 East, 395. If there were several trespasses, plaintiff should state them; for if the plaintiff' in his declaration avers a single act of trespass which defendant justifies, there can be no new assignment; 7 Taunt. 156; Stammers v. Yearsley, 10 Bing. 35. As to the utility of a second count, see 1 Campb. 473. The unnecessary introduction of several counts is censured, 1 Bla. Rep. 270; and now is restrained by Reg. Gen. Hil. T. 4 W. 4, reg. 5. (1) Supra, note (d). (m) This may in some cases be preferable to "made an assault," see observations in 6 East, 396; ante, 648, note (c). (n) Insert declaration vi et armis, for a menace per quod, &c. 2 Lutw. 1428; Regist. 104; 27 Ass. 11; 3 Bla. Com. 119, 120, n. (0) State only such acts of trespass as can be proved; an over statement, unsupported by evidence, affords ground for ridicule on the part of defendant's counsel, ASSAULT AND For an assault, spitting in face, pulling nose and hair, beating with sticks and fists, pulling down, throwing down, kicking and tearing clothes.(h) ASSAULT AND Damage, that about divers parts of his head, arms and body; and also then with great force and violence shook and pulled about the plaintiff, and cast and threw him down to and upon the ground, and then violently kicked him, and gave and struck him a great many other blows and strokes, [and also then, (p) with great force and violence, rent, tore and damaged the clothes and wearing apparel, to wit, one coat, one waistcoat, one pair of breeches, one cravat, one shirt, one pair of stockings and one hat, of the plaintiff, (q) of great value, to wit, of the value of [£20,] which he then wore]. By means of plaintiff became which said several premises the plaintiff was then greatly hurt, bruised and bruised and ill, unable to trans wounded, and became and was lame, sore and disordered, and so remained act his business, and continued for a long time, to wit, hitherto, during all which time the plaintiff thereby suffered and underwent great pain, and was hindered and prevented from performing and transacting his necessary affairs and business by him during that time to be performed and transacted, and also thereby the plaintiff was then forced and obliged to, and did necessarily incur and pay, lay out and expend a large sum of money, to wit, the sum of £—, in and about endeavouring to be cured of the bruises, wounds, soreness, lameness and disorder aforesaid, so occasioned as aforesaid. and was put to expense about his cure.(r) A count for a common as sault.(s) For firing a loaded pistol at plaintiff, and wounding him For that the defendant, on &c. with force and arms, &c. assaulted the plaintiff, and then beat, bruised, wounded and ill-treated him, insomuch that his life was thereby then greatly despaired of, (t) and other wrongs, &c. [The conclusion is to be as ante, 649. For that the defendant, on &c. [day of assault or about it,] with force and arms, &c. assaulted the plaintiff, and then beat, bruised, wounded and illtreated him, and shot off and discharged a pistol, then loaded with gunpowder thereby, &c.(u) and leaden bullets, which said pistol, so loaded, he the defendant then held at and against the plaintiff, and thereby and therewith shot, struck and wounded the plaintiff in so grievous a manner that his life was, by means thereof, then greatly despaired of, and by reason of such wounding the plaintiff then became lame, sick and disordered, and continued so lame, sick and disordered for a long time, to wit, from thence hitherto, and was, during all that time, thereby rendered incapable of following and transacting his necessary affairs and business by him during that time to be done, &c. [Conclude as usual, as ante, 649. to proceed, distinct counts should be added for each assault; 1 Saund. 299, n.6; 1 Campb. 473. But otherwise it is not necessary to insert a count for a common assault, for if the plaintiff prove any part of a special count, he will be entitled to a verdict pro tanto, though he fail in proving the residue; Rep. temp. Hardw. 121; 2 Saund. 74 b. (t) This is the usual form of the count for a common assault, though there have been no battery, see 1 Saund. 14, n. 3; but the words in italics should be omitted where the party was but slightly injured. (u) The right of action would be merged in the felony, if the defendant maliciously shot at plaintiff. |