PARTICULARS In the Queen's Bench [" Common Pleas" or "Exchequer of Pleas."] OF DEMAND. Between A. B. Plaintiff, 2. Full particu. lars, giving cre dit. and C. D. Defendant. This action is brought to recover the sum of £- due as follow: [Copy the account, and then give credit for the payments as follows:] By cash..........£ Above are the particulars of the plaintiff's demand in this action, and for the recovery thereof the plaintiff will rely on an account stated, as well as the other count [or "counts"] in the declaration. Yours, &c. [as in last. To, &c. [as in last. 3. Short parti- In the Queen's Bench [" Common Pleas" or "Exchequer of Pleas."] Between A. B. Plaintiff, culars, not giving credit. and This action is brought to recover the sum of £ in evidence in mitigation of damages, under a plea of the general issue; Ernest v. Brown, 3 Bing. N. C. 674; 4 Scott, 385; Kenyon v. Wakes, 2 M. & W. 764; Nichols v. Williams, 2 M. & W. 758; Shirley v. Jacobs, 2 Bing. N. C. 88; Belbin v. Butt, 2 M. & W. 422. But by the above rule it is ordered "That in any case in which the plaintiff, in order to avoid the expense of the plea of payment, shall have given credit in his particulars of demand for any sum or sums of money therein admitted to have been paid to the plaintiff, it shall not be necessary for the defendant to plead the payment of such sum or sums of money," but this rule is not to apply to cases where the plaintiff, after stating the amount of his demand, states that he seeks to recover a certain balance, without giving credit for any particular sum or sums. By a rule of the same term, payment can in no case be given in evidence in reduction of damages or debt, but must be pleaded in bar. In order to prevent the expense of entering a nolle prosequi to a plea of part payment, it is always advisable to credit all payments on account in the particulars of demand. If the payment credited in the particulars was made after action brought, a plea of payment is unnecessary; thus where the particulars claimed a balance after crediting payments, some made before and some after action brought, a general plea of payment was held to have reference to that balance, and the defendant on the trial, having proved payment to a greater amount than the balance claimed, was held entitled to a verdict; Eastwick v. Harman, 6 M. & W. 13. As the rule of T. T. 1 Vict. has no reference to cross demands, a defendant is not deprived of his plea of set-off by any credit of this nature in the particulars of the plaintiff's demand, and therefore to give credit for that which is the subject of a set-off only furnishes evidence in support of a plea of set-off, and does not deprive the defendant of such plea, or render for butcher's meat it unnecessary for the plaintiff to enter a nolle prosequi to a part of his demand, if such plea be pleaded; Rowland v. Blake, 2 G. & D. 734. " Where the particulars of the plaintiff's demand stated the action to be brought to recover a sum of 271. 13s., being the balance due after giving credit for all payments on account, and for such sums as the defendant might have to set off against the plaintiff;" and then stated the items of the plaintiff's demand to the amount of 1204., it was held that these particulars did not, within the meaning of the rule T. T. 1 Vict. give credit for a sum of money admitted to have been paid; Morris v. Jones, 1 G. & D. 13. As to the effect of giving credit for goods returned, see Lamb v. Micklewaite, G. & D. 136. And as to the effect of crediting a bill, and afterwards debiting it on account of its being dishonoured, see Green and others v. Smithies, 1 G. & D. 395. Where the particulars of demand refer to other particulars delivered before action brought, the rule does not render it unnecessary to plead payment of sums credited in such particulars; Bosley v. Moore, 8 Dowl. P. C. 375. Where the plaintiff in his particulars of demand charged the defendant and also credited him with items which accrued after action brought, and no objection was made thereto until the under-sheriff was on the point of summing up, a verdict for the balance was sustained, it being considered a matter of consent, and that the defendant should have objected in the earlier part of the cause to a balance of accounts being thus stated; Alexander v. Porter, 1 Dowl. N. S. 832. The Court will not order the delivery of particulars in an action of trespass, upon the mere statement of the defendant that he does not know the grievances intended to be relied on, but some special grounds for the application must be shown; Horlock v. Lediard, 2 Dowl. N. S. 277. supplied by the plaintiff to the defendant, between the - day of Above is a statement of the nature and amount of the plaintiff's claim in this action, pursuant to the Rule of Court requiring the same, and for the recovery thereof the plaintiff will rely on an account, stated, as well as the other count [or "counts"] in the declaration. Dated the To C. D. &c. [as before. day of Yours, &c. [as before. In the Queen's Bench ["Common Pleas," or "Exchequer of Pleas."] Between A. B. Plaintiff, and C. D. Defendant. day of and the This action is brought to recover the sum of £--, being the amount due to the plaintiff on an account for tea and grocery goods supplied by the plaintiff to the defendant between the -day of, the full particulars whereof cannot be comprised within three folios, after giving credit to the defendant for £, paid at various times. -- " Above is a statement of the nature of the plaintiff's claim, and of the amount which he claims to be due, pursuant to the Rule of Court requiring the same, and for the recovery thereof the plaintiff will rely on an account stated (b), as well as the other count [or "counts"] in the declaration. Dated the day of To C. D. &c. [as before. 1843. (b) In order to recover under the account stated, where the particulars do not claim a distinct and separate debt under such count, the plaintiff will be bound to connect any admission of a debt by the defendant with the claim particularly specified in the particulars of demand; Roberts v. Elsworth, 2 Dowl. N. S. 456. And where the particulars of demand stated that the action was brought to re Yours, &c. [as before. cover the amount due on the promissory note PARTICULARS OF DEMAND. 4. Short particulars, giving credit. IN INFERIOR In the Mayor's Court in London, in assumpsit. Do. in debt. Do. by baron and feme, feme being a sole trader within the city. (b) Declaration against baron and feme, feme being sole trader within the city. (c) (8) COMMENCEMENTS AND CONCLUSIONS OF DECLARATIONS. IN INFERIOR COURTS. (a) Before the Mayor and Aldermen in the Chamber of the Guildhall of the City of London. A. B. by his attorney, complains against C. D. of a plea of trespass on the case upon promises. For that whereas, &c. [State the cause of action as in the superior Courts, and it seems that the facts should be stated to have occurred within the jurisdiction. See 6 Term Rep. 764, and see note (a), infra. Conclude as follows:] To the damage of the said plaintiff of £and therefore he brings his suit, &c. Title of the Court as above.] Pledges, &c. A. B., by E. F. his attorney, demands against C. D. £ of lawful money of Great Britain, which he owes to and unjustly detains from him the said A. B. For that whereas, &c. [State the cause of action to have accrued within the jurisdiction and as directed in 1 Saund. Rep. 68, note 2; Com. Dig. tit. London, note 1; and note (a), supra. Title of the Court as above.] case. A. B. and E. F. his wife (which said E. F. doth sole merchandize without her said husband in the art or trade of within the city of London), by their attorney, complain against C. D. in a plea of trespass on the For that whereas the said C. D., on &c. at the parish of in the city of London, and within the jurisdiction of this Court, was indebted to the said E. F., then and now being the wife of the said A. B. and then and now 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, in the sum of £ of lawful &c. For &c. [here state the cause of action, laying the promises to E. F. and describing her "as such sole trader as aforesaid." Title of the Court as above.] A. B., by his attorney, complains against C. D. and E. F. his wife, which said E. F. doth sole merchandize without her husband in the art or trade of a within the city of London, in a plea of trespass on the case upon promises. For that whereas the said E. F., so being such sole trader as aforesaid, on &c. in London and within the jurisdiction of this Court, (a) The uniformity of process act, 2 W. 4, c. 39, and rules thereon, only apply to the three superior Courts at Westminster. But the 3 & 4 Will. 4, c. 42, ss. 1 and 23, and the pleading rules founded thereon, of Hil. Term, 4 W. 4, extend to all Courts of Common Law, and therefore reg. 8, prohibiting a statement or repetition of venue in the body of a declaration, relates to all Courts. But still it must be averred that each material fact occurred within the jurisdiction; Read v. Pope, 1 Crom. M. & Ros. 302; Salter v. Slade, 1 Adol. & Ell. 608; 6 Term R. 764; Williams v. Gibbs, 5 Adol. & Ell. 208. As to what is a sufficient allegation of that fact, see Chitty v. Denby, 3 Adol. & Ell. 319. Take care not to insert a demand in debt, &c. beyond the amount over which the Court has jurisdiction. See Dempster v. Parnell, 1 Dowl. N. S. 168. (b) As to this custom, see 2 B. & P. 93. (c) Id. then and still being the 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 indebted, &c. In the Palace Court. IN INFERIOR and conclusion Palace Court, (to wit.) A. B., by his attorney, complains against Commencement C. D. of a plea of trespass on the case upon promises [or as the plea is], of declaration For that whereas, &c. [alleging every material fact to have happened within in the Palace. the jurisdiction of the court, and conclude as follows:] To the damage of the Court. (d) plaintiff of £, and therefore he brings his suit, &c. "And the said plaintiff avers that he is not, nor is the said defendant, nor were they, nor was either of them, at the time of levying the plaint of him the said plaintiff here in Court, of the queen's household." Court of Record of Kingston-upon-Hull. Kingston-upon-Hull, (to wit.) C. D. was attached to answer A. B. in a Do. in the Court of Record of plea of trespass on the case upon promises to his damage of £- and 9 Kingston-upon thereupon the said A. B., by his attorney, complains. For that whereas Hull. the said C. D. on &c., at the town of Kingston-upon-Hull, and within the fee and jurisdiction of this Court, was indebted, &c. [Afterwards stating every fact to have occurred" within the jurisdiction aforesaid." of South wark. (e) Borough of Southwark, (to wit.) A. B., by his attorney, complains Do. in the against C. D. in a plea of trespass on the case upon promises. For that Borough Court whereas the defendant, on, &c. within the jurisdiction of this Court, was indebted, &c. [stating every material fact to have happened "within the jurisdiction aforesaid," and conclude as formerly in the Queen's Bench by bill, viz. "to the damage of the plaintiff of £, and therefore he brings his suit," &c. In the County Court of the County of ——. — (to wit.) A. B., by his attorney, complains of C. D. of a plea Do. in the of trespass on the case upon promises. For that whereas the said defendant, County Court. on, &c. and within the jurisdiction of this Court, was indebted, &c. [alleging every material fact, as well the cousideration of the promise as the contract itself, to have taken place within the jurisdiction. (ƒ) (to wit.) Writ of justicies to be directed to the sheriff of the county Præcipe for a of —, to hold plea in his County Court for A. B. against C. D. in an action writ of justicies in the County upon promises. For that whereas [as in a declaration for a debt in general Court in asand in the following forms, except that every material fact, as well the subject- sumpsit. matter of the debt as the promise, must be alleged to have happened, “and within the jurisdiction of the said Court," (g) then conclude as follows:] To the damage of the said plaintiff of £, as it is said, &c. (d) See a form in the Palace Court, Ro. chester, Plead. Assist. 133. (e) See Plead. Assist. 385; Morg. 174. (f) 1 Saund. 73, 74, n. 2; 1 Term R. 151; Read v. Pope, 1 Cromp. M. & Ros. 302; Salter v. Slade, 1 Adol. & Ell. 608. See the form of declaration in the County Court in (g) This is necessary, 1 Saund. 74, n. 1; IN INFERIOR Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland queen, defender of the faith, to the sheriff of the county of Writ of justicies greeting: A. B. hath complained to us against C. D. in an action upon promises [or as the plea is.] For that whereas, &c. [as in the præcipe to the thereon. 66 words, as it is said," &c. stating the material facts to have occurred “ within the jurisdiction of the said Court of the county of -."] And therefore we command you to hear that plaint, and afterwards cause justice to be done therein, that we hear no more complaint thereof for want of justice. Witness ourself at Westminster, the day of, in the our reign. In the County Court of year of (to wit.) C. D., by virtue of her Majesty's writ of justicies, was attached to answer A. B. on an action upon promises, to the damage of the said A. B. of £-- and there are pledges to prosecute, to wit, John Doe and Richard Roe; and whereupon the said A. B., by his attorney, complains. For that, &c. [as in the writ of justicies to the end, and conclude as follows:] Wherefore the plaintiff saith that he is injured, and hath sustained damage to the amount of £- and therefore he brings his suit, &c. ON REMOVALS FROM INFERIOR COURTS. ON REMOVALS THE uniformity of process act, 2 W. 4, c. 39, and the rules thereon, only FROM INFERIOR extend to personal actions commenced in one of the three superior Courts, COURTS. and therefore, notwithstanding that statute and those rules, whenever an action has been removed from an inferior Court into the Queen's Bench, Common Pleas, or Exchequer, and, as usual, it therefore becomes necessary to declare de novo in such superior Courts, then the declaration should in each case be intituled of a term in which the writ removing the proceedings was returnable, or that in which the defendant appeared thereto; and in the Queen's Bench, the defendant should be described as in the supposed custody of the keeper of the Queen's prison (the office of marshal being abolished by the 5 Vict. c. 22, s. 3); in the Common Pleas, to have been summoned or attached to answer to the plaintiff, according to the nature of the cause of action; and in the Exchequer, the plaintiff is still described to be in the commencement and conclusion as debtor to the queen. (See Dodd v. Grant, 4 A. & E. 485. 1. Declaration in Q. B. in an action removed from an inferior Court. In the Queen's Bench. On the day of A. D. Easter Term, in the 6th year of the reign of Queen Victoria. () Middlesex (the venue) to wit. A. B. by E. F. his attorney, complains of C. D. being in the custody of the keeper of the queen's prison. For that &c. [here set forth the cause of action and conclude as follows:] To the damage of the said A. B. of £- and therefore he brings his suit, &c. (h) If the declaration be delivered in vacation, intitule it, "As yet of instead of the Term. -Term," &c. |