The first of these is the declaration, narratio, or count, antiently called the tale;(a) in which the plaintiff sets forth his cause of complaint at length; being, indeed, only an amplification or exposition of the original writ upon which his action is founded, with the additional circumstances of time and place when and where the injury was committed. But we may remember,(6) that in the (*) Append. No. II. & 2; No. III. & 6.

☺ See pages 285, 288. And facts only should be stated, and not arguments or inferences, or matter of law. Cowp. 684. 5 East, 275. The party can only succeed on the facts as they are alleged and proved.

There are various facts which need not be stated, though it may be essential that they should be established in evidence, to entitle the party pleading to succeed.

Thus, there are facts of which the court will, from the nature of its office, take notice without their being stated : as when the king came to the throne, (2 Lord Raym. 794) his privileges, (id. 980,) proclamations, &c., (1 Lord Raym. 282.2 Camp. 44. 4 M. & 8. 532 ;) but private orders of council, pardons, and declarations of war, &c. must be stated.' 2 Litt. Bac. Reg. 303. 3 M. & S. 67. 11 Ves. 292. 3 Camp. 61, 67. The time and place of holding parliaments, and their course of proceedings, need not be stated, (1 Lord Raym. 343, 210. 1 Saund. 131 ;) but their journals must. Lord Raym. 15. Cowp. 17. Public statutes, and the facts they ascertain, (1 T. R. 145. Com. Dig. Pleader, c. 76,) the ecclesiastical, civil, and marine laws, (Bro. Quare Impedit, pl. 12. Lord Raym. 338,) need not be stated; but private acts, (Lord Raym. 381. 2 Dougl. 97,) and foreign (2 Carth. 273. Cowp. 174) and plantation and forest (2 Leon. 209) laws, must. Common-law rights, duties, and general customs, customs of gavelkind, and borough-English, (Doug. 150. Lord Raym. 175, 1542. Carth. 83. Co. Litt. 175. Lord Raym. 1025. Cro. Car. 561,) need not be stated; but particular local customs must. 1 Roll. Rep. 509. 9 East, 185. Stra. 187. 1287. Dougl. 387. The almanac is part of the law of the land, and the courts take notice thereof, and the days of the week, and of the movable feasts, and terms. Dougl. 380. Salk. 269. I Roll. Abr. 524, c. pl. 4.6 Mod. 81. Salk. 626. So the division of England into counties will be noticed without pleading, (2 Inst. 557. Marsh, 124,) but not so of a less division (id.) nor of Ireland. i Chit. Rep. 28, 32. 3 B. & A. 301, S. C. 2 D. & R. 16. 1 B. & C. 19, S. C. The court will take judicial notice of the incorporated towns, of the extent of ports, and the river Thames. Stra. 469. 1 H. Bla. 356. So it will take notice of the meaning of English words and terms of art, according to their ordinary acceptation, (1 Roll. Abr. 86, 525;) also of the names and quantities of legal weights and measures, (1 Roll. Abr. 525 ;) also courts will take notice of their own course of proceedings, (1 T. R. 118. 2 Lev. 176,) and of those of the superior courts, (2 Co. Rep. 18. Cro. Jac. 67,) the privileges they confer on their officers, (Lord Raym. 869, 898,) of courts of general jurisdiction, and the course of proceedings therein; as the court of Exchequer in Wales and the counties palatine, (1 Lord Raym. 154. 1 Saund. 73 ;) but the courts are not bound, ex officio, to take notice who were or are the judges of another court at Westminster, (2 Andr. 74. Stra. 1226 ;) nor are the superior courts, ex officio, bound to notice the customs, laws, or proce ings of inferior courts of limited jurisdiction, Roll. Rep. 105. Lord Raym. 1334. Cro. Eliz. 502,) unless indeed in courts of error. Cro. Car. 179.

Where the law presumes a fact, as that a person is innocent of a fraud or crime, or that a transaction is illegal, it need not be stated. 4 M. & S. 105. 2 Wils. 147. Co. Litt. 78, b. 1 B. & A. 463.

Matter which should come more properly from the other side, as it is presumed to lie more in the knowledge of the other party, or is an answer to the charge of the party pleading, need not be stated, unless in pleas of estoppel and alien enemy; but this rule must be acted upon with caution ; for if the fact in any way constitutes a condition precedent, to enable the party to avail himself of the charge stated in his pleading, such fact should be stated. Com. Dig. Pleader, c. 81. 1 Leon. 18. 2 Saund. 62, b. 4 Camp. 20. 11 East, 638; and see cases, i Chit. on Pl. 206. Stephen, 354.

Though the facts of a case must be stated in pleading, it is not necessary to state that which is a mere matter of evidence of such fact. 9 Rep. 9, b. 9 Edw. III. 5, b., 6, a. Willes, 130. Raym. 8.

And though the general rule is that facts only are to be stated, yet there are some instances in which the statement in the pleading is proper, though it does not accord with the real facts, the law allowing a fiction, as in ejectment, trover, detinue, &c. Burt. 667. 1 N. R. 140.

No fact that is not essential to substantiate the pleading should be stated. The statement of immaterial or irrelevant matter is not only censurable on the ground of expense, but frequently affords an advantage to the opposite party, either as the ground of a variance, or as rendering it incumbent on the party pleading to adduce more evidence than would otherwise have been necessary; though, indeed, if the matter unnecessarily


king's bench, when the defendant is brought into court by bill of Middlesex, upon a supposed trespass, in order to give the court a jurisdiction, the plaintiff may declare in whaterer action, or charge him with whatever injury, he thinks proper; unless he has held him to bail by a special ac etiam, which the plaintiff is then bound to pursue. And so also, in order to have the benefit of a capias to secure the defendant's person, it was the antient practice, and is therefore still warrantable in the common pleas, to sue out a writ of trespass quare clausum fregit, for breaking the plaintiff's close : and when the defendant is once *294]

brought in upon this *writ, the plaintiff declares in whatever action the

nature of his true injury may require; as in an action of covenant, or on the case for breach of contract, or other less forcible transgression :(c) unless, by holding the defendant to bail on a special ac etiam, he has bound himself to declare accordingly.”

In local actions, where possession of land is to be recovered, or damages for an actual trespass, or for waste, &c. affecting land, the plaintiff must lay his

(©) 2 Ventr. 259.

stated be wholly foreign and impertinent to the cause, so that no allegation w'atever on the subject was necessary, it will be rejected as surplusage, it being a maxin that utile per inutile non vitiatur. See cases, &c. in Chit. on Pl. 208, 209, 210. Besides this, the pleading must not stațe two or more facts either of which would of itself, independently of the other, constitute a sufficient ground of action or defence. Co. Litt. 304, a. Com. Dig. Pleader, C. 33, E. 2. 1 Chit. on Pl. 208.

2d. The MODE OF STATing Facts.—The facts should be stated logically, in their natural order; as, on the part of the plaintiff, his right, the injury and consequent damage: and these with certainty, precision, and brevity. The facts, as stated, must not be insensible or repugnant, nor ambiguous or doubtful in meaning, nor argumentative, nor in the alternative, por by way of recital, but positive, and according to their legal effect and operation. Dougl. 666, 667. 1 Chit. on Pl. 211. Stephen, 378 to 405.

Certainty signifies a clear and distinct statement, so that it may be understood by the opposite party, by the jury, who are to ascertain the truth of such statement, and by the court, who are to give judgment. Cowp. 682. Com. Dig. Pleader, C. 17. Less certainty is requisite when the law presumes that the knowledge of the facts is peculiarly in the opposite party; and so when it is to be presumed that the party pleading is not acquainted with minute circumstances. 13 East, 112. Com. Dig. Pleader, C. 26. 8 East, 85. General statements of facts admitting of almost any proof are objectionable, (1 M. & S. 441. 3 M. & S. 114;) but where a subject comprehends multiplicity of matter, there, in order to avoid prolixity, general pleading is allowed. 2 Saund. 411, n. 4. 8 T. R. 462.

In the construction of facts stated in pleading, it is a general rule that every thing shall be taken most strongly against the party pleading, (1 Saund. 259, n. 8;) or rather, if the meaning of the words be equivocal, they shall be construed most strongly against the party pleading them, (2 H. Bla. 530;) for it is to be intended that every person states his case as favourably to himself as possible, (Co. Litt. 30, 36;) but the language is to have a reasonable intendment and construction, (Com. Dig. Pleader, C. 25;) and if the sense be clear, mere exceptions ought not to be regarded, (5 East, 529;) and where an expression is capable of different meanings, that shall be taken which will support the averment, and not the other which would defeat it. 4 Taunt. 492. 5 East, 257. After verdict, an expression should be construed in such sense as would sustain the verdict. 1 B. & C. 297.-Chitty..

? And even then the plaintiff will only lose the benefit of the bail, and the court will not set aside the proceedings. 7 T. R. 80. 8 T. R. 27. 5 Moore, 483. 6 T. R. 363. So in the King's Bench, where the proceedings are by original, the venue must be laid in the county into which the original was issued; or in bailable cases the defendant will be discharged; but it would be otherwise in Common Pleas, (Imp. C. P. 159 ;) and this would be the only advantage gained by the defendant.

The declaration should in other respects correspond with the process, as in the names and numbers of the parties, the character or right in which they sue or are sued; but as, according to the present practice of the courts, oyer of the writ cannot be craved, and a variance between the writ and declaration cannot in any case be pleaded in abatement, (1 Saund. 318. 3 B. & P. 395,) and as there are several instances in which the court will not set aside the proceedings on account of a variance between the writ and declaration, (6 T. R. 364,) many of the older decisions are no longer applicable in practice. But if the defect appear on the face of the declaration, the plaintiff may plead in abatement, or demur accordingly. As to these general requisites, see 1 Chit. on Pl. 222 to 229.Сніття.

[ocr errors]

declaration or declare his injury to have happened in the very county and place that it really did happen;" but in transitory actions, for injuries that might have happened anywhere, as debt, detinue, slander, and the like, the plaintiff may declare in what county he pleases, and then the trial must be had in that county in which the declaration is laid. Though if the defendant will make affidavit that the cause of action, if any, arose not in that but in another county, the court will direct a change of the venue or visne, (that is, the vicinia or neighbourhood in which the injury is declared to be done, and will oblige the plaintiff to declare in the other county; unless he will undertake to give material evidence in the first. For the statutes 6 Ric. II. c. 2, and 4 Hen. IV. c. 18, having ordered all writs to be laid in their proper counties, this, as' the judges conceived, empowered them to change the venue, if required, and not to insist rigidly on abating the writ: which practice began in the reign of James the First.(d) And this power is discretionally exercised, so as to prevent and not to cause a defect of justice. Therefore the court will not change the venue to any of the four northern counties, previous to the spring circuit; because there the assizes are holden only once a year, at the time of the summer circuit. And it will sometimes remove the venue from the proper jurisdiction, (especially of a narrow and limited kind,) upon a suggestion, duly supported, that a fair and impartial trial cannot be had therein.(e)

*It is generally usual in actions upon the case to set forth several cases by different counts in the same declaration; so that if the plaintiff

[*295 fails in the proof of one, he may succeed in another. As, in an action on the case upon an assumpsit for goods sold and delivered, the plaintiff usually counts or declares, first, upon a settled and agreed price between him and the defendant; as that they bargained for twenty pounds: and lest he should fail in the proof of this, he counts likewise upon a quantum valebant; that the defendant bought other goods, and agreed to pay him so much as they were reasonably

(5) Rastall, tit. Dette, 184, b. Fitz. Abr. tit. Briefe, 18. () Stra. 874, Mylock us. Saladine. Trin. 4 Geo. III. B. R. Salk. 170. Trye's Jus. Filis. 251. Styl. Pract. Reg. (edit.

1657) 331.

• Actions for every kind of injury to real property are local, as for nuisances, waste, &c., unless there be some contract between the parties, on which to ground the action. 1 Taunt. 379. 11. East, 226. And if the land be out of this kingdom, the plaintiff has no remedy in the English courts, if there be a court of justice to resort to where the land is situate. 4 T. R. 503. 1 Stra. 646. Cowp. 180. 6 East, 598. Where an injury has been caused in one county, to land, &c. in another, or when the action is founded upon two or more material facts which took place in different counties, the venue may be laid in either. 2 Taunt. 252, overruling 2 Camp. 266. 7 Co. 1. 3 Leon. 141. 7 T. R. 583. Chitty on Pl. 242.

In an action upon a lease for the non-payment of rent, or other breach of covenant, when the action is founded on the privity of contract, it is transitory; but not so when the action is founded on the privity of estate. 3 T. R. 394. 3 Co. 23. 1 Saund. 237. Tidd, 431. 1 Chit. 244 to 246.

In some cases the action, though of a transitory nature, must, by act of parliament, be brought in a particular county, as by 31 Eliz. c. 5, s. 2. 21 Jac. I. c. 4, s. 2. In actions or informations on penal statutes, the venue must be laid where the offence was committed. Tidd, 432. * 1 Chit. 246. So actions of case or trespass are local when against justices of the peace, mayors, bailiffs of cities or towns corporate, headboroughs, portreves, constables, tithing-men, church-wardens, &c., or other persons acting in their aid and assistance or by their command, for any thing done in their official capacity, (21 Jac. I. c. 12, s. 5,) or against any person or persons for any thing done by an officer of the excise, (23 Geo. III. c. 70, s. 34,) or customs, (24 Geo. III. sess. 2, c. 47, s. 35, 39; and see 28 Geo. III. c. 37, s. 23,) or others acting in his aid, in execution or by reason of his office, or for any thing done in pursuance of the act relating to taxes, &c. 43 Geo. III. c. 99, s. 70. And the 42 Geo. III. c. 85, s. 6 extends the above provisions of the 21 Jac I. to all persons in any public employment, or any office, station, or capacity, anywhere, with a proviso that the action may be brought in Westminster, or where the defendani resides. There are also various other provisions in other acts, requiring that the venue shall be local, as in the highway, turnpike, militia acts, &c. Attorneys may lay and retain the venue in Middlesex.-Chitty.

* This power of changing the venue was extended, by stat. 3 & 4 W. IV. c. 42, s. 22, to local actions.-STEWART.

[ocr errors]


worth; and then avers that they were worth other twenty pounds; and so on, in three or four different shapes ;5 and at last concludes with declaring that the defendant had refused to fulfil any of these agreements, whereby he is endamaged to such a value. And if he proves the case laid in any one of his counts, though he fails in the rest, he shall recover proportionable damages. This declaration always concludes with these words, "and thereupon he brings &c.,'

,« inde producit sectam, &c.” ?6. By which words suit or secta (a sequendo) were antiently understood the witnesses or followers of the plaintiff. (f) For in former times the law would not put the defendant to the trouble of answering the charge till the plaintiff had made out at least a probable case.(9) But the actual production of the suit, the secta, or followers, is now antiquated, and hath been totally disused, at least ever since the reign of Edward the Third, though the form of it still continues.

At the end of the declaration are added also the plaintiff's common pledges of prosecution, John Doe and Richard Roe,' which as we before observed, (h) are now mere names of form, though formerly they were of use to answer to the king for the amercement of the

plaintiff in case he were nonsuited, barred of his action, or had a verdict or judgment against him.(i) For if the plaintiff neglects to deliver a declaration for two terms after the defendant appears, or is guilty of other delays or defaults against the rules of law in any subsequent *296]

*stage of the action, he is adjudged not to follow or pursue his remedy

as he ought to do, and thereupon a nonsuit or non prosequitur is entered, and he is said to be nonpros'd. And for thus deserting his complaint, after inaking a false claim or complaint, (pro falso clamore suo,) he shall not only pay costs to the defendant, but is liable to be amerced to the king. A retraxit differs from a nonsuit in that the one is negative and the other positive; the nonsuit


[blocks in formation]

5 The variations should be substantial; for if the different counts be so similar that the same evidence would support each of them, and be of any considerable length, and vexatiously inserted, the court would on application refer it to the master for examination and to strike out the redundant counts, and in gross cases direct the costs to be paid by the attorney. 1 N. R. 289. Rep. T. Hardw. 129. And as to striking out superfluous counts, see Tidd, 8th ed. 667, 648. In 2 Bingh. 412, nine counts were allowed in an action for slander, though the words used were very few. See 1 Chitt. on Pl. 350, 351, 352, as to the insertion of several counts. There must be no misjoinder of different counts; and, in order to prevent the confusion which might ensue if different forms of action, requiring different pleas and different judgments, were allowed to be found in one action, it is a general rule that actions in form ex contractu cannot be joined with those in form ex delicto

. Thus, assumpsit and debt, (2 Smith, 618. 3 ib. 114,) or assumpsit and an action on the case, as for a tort, cannot be joined, (1 T. R. 276, 277. 1 Ventr. 366. Carth. 189;) nor assumpsit with trover, (2 Lev. 101. 3 Lev. 99. 1 Salk. 10.3 Wils. 354. 6 East, 335. 2 Chitty Ř. 343 ;) nor trover with detinue. Willes, 118. 1 Chitty on Plead. 182. Debt and detinue may, however, be joined, although the judgments be different. 2 Saund. 117. And see further, as to what is a misjoinder, 1 Chitty on Pl. 199. Unless the subsequent count expressly refers to the preceding, no defect therein will be aided by such preceding count. Bac. Abr. Pleas and Pleader, 16, 1.-Chitty.

6 It does not so conclude in actions against attorneys and other officers of the court, but thus:-"and therefore he prays relief, &c.”. Andr. 247. Barnes, 3, 167.

In actions at the suit of an executor or administrator, immediately after the conclusion to the damage, &c., and before the pledges, a profert of the letters testamentary, or letters of administration, should be made. Bac. Abr. Executor, C. Doug. 5, in notes. But omission is added unless defendant demur specially. 4 Anne, c. 16, s. 1.-Cutty.

But these pledges need not be stated in proceedings by original, or in the Common Pleas, unless in proceedings against attorneys, &c. Summary on Pl. 42. Barnes, 163. Nor are they necessary in an action at the suit of the king or queen. 8 Co. 61. Cro. Car. 161. And no advantage can be taken of the omission in any case, even on special de murrer. 3 T. R. 157, 158.–Chitty.

8 But unless the defendant take advantage of the plaintiff's neglect, by signing such judgment, the plaintiff may deliver his declaration at any time within a year next after the return of the writ. 3 T. R. 123. 5 id. 35. 7 id. 7; sed vide 2 N. R. 404. As to when the defendant is entitled to, and how he should sign a judgment of, and the costs on, a non pros., see Tidd, 8th ed. Index, tit. Non Pros.-Chitty.

is a mere default and neglect of the plaintiff

, and therefore he is allowed to begin his suit again upon payment of costs; but a retraxit is an open and voluntary renunciation of his suit in court, and by this he forever loses his action. A discontinuance is somewhat similar to a nonsuit; for when a plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day and time to time, as he ought to do, the suit is discontinued, and the defendant is no longer bound to attend; but the plaintiff must begin again by suing out a new original, usually paying costs to his antagonist. Antiently, by the demise of the king, all suits depending in his courts were at once discontinued, and the plaintiff was obliged to renew the process by suing out a fresh writ from the successor, the virtue of the former writ being totally gone, and the defendant no longer bound to attend in consequence thereof; but, to prevent the expense as well as delay attending this rule of law, thé statute 1 Edw. VI. c. 7 enacts that by the death of the king no action shall be discontinued, but all proceedings shall stand good as if the same king had been living.

When the plaintiff hath stated his case in the declaration, it is incumbent on the defendant within a reasonable time to make his defence and to put in a plea; else the plaintiff will at once recover judgment by default or nihil dicit of the defendant.

Defence, in its true legal senso, signifies not a justification, protection, or guard, which is now its popular signification, but merely an opposing or denial (from the French verb defender) of the truth or validity of the complaint. It is the contestatio litis of the civilians, a general assertion that the plaintiff hath no ground of action, which assertion is afterwards extended **and maintained in his plea. For it would be ridiculous to suppose that the

[*297 defendant comes and defends (or, in the vulgar acceptation, justifies) the force and injury in one line, and pleads that he is not guilty of the trespass complained of, in the next. And therefore, in actions of dower, where the demandant doth not count of any injury done, but merely demands her endow. ment,(k) and in assizes of land, where also there is no injury alleged, but merely a question of right stated for the determination of the recognitors oi jury, the tenant makes no such defence.(l) In writs of entry,(m) where no injury is stated in the count, but merely the right of the demandant and the defective title of the tenant, the tenant comes and defends or denies his right, jus suum; that is, (as I understand it, though with a small grammatical inac curacy,) the right of the demandant, the only one expressly mentioned in the pleadings, or else denies his own right to be such as is suggested by the count of the demandant. And in writs of right(n) the tenant always comes and defends the right of the demandant and his seisin, jus prædicti S. et seisinam ipsius, (o)(or else the seisin of his ancestor upon which he counts, as the case may be,) and the demandant may reply that the tenant unjustly defends his, the demandant's, right, and the seisin on which he counts.(P) All which is extremely clear if we understand by defence an opposition or denial, but it is otherwise inexplicably difficult.(9)

The courts were formerly very nice and curious with respect to the nature of the defence; so that if no defence was made, though a sufficient plea was pleaded, the plaintiff should recover judgment;(r) and therefore the book entitled novæ narrationes or the new talys.(3) at the end of almost every count, narratio, or tale, subjoins such defence as is proper for the defendant to make. For a general defence or denial was not prudent in every situation, since thereby the propriety of the writ, the competency of the plaintiff, and the cognizance of the court, were allowed. By defending the force and injury, *the defendant waived all pleas of misnomer ;(t) by defending the damages, all exceptions to the person of the plaintiff; and by defending

[*298 () Rastal. Ent. 134.

(O) The true reason of this, says Booth, (on Real Actions, (9) Booth of Real Actions, 118.

94, 112,) I could never yet find; so little did he understand (5) Bok II. Append. No. V. & 2.

si principles! (*) Append. No. 1. & 5.

(1) Co. Litt. 127. () Co. Entr. 182

() Edit. 1534. () Nov. Nar. 230, odit. 1534.

("Theloal. dig. I. 14, c. 1, pag. 357.

« ForrigeFortsett »