Replevin The like in a county court.(m) In the County Court of In the County Court of (to wit.) CD was summoned to answer AB 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 aud pledges, until, &c. and thereupon the said A B by E F his attorney complains, for that the said CD, on the day of , A. D. in the parish of -, in the county of, and within the jurisdiction of this court(n) in a certain dwelling-house there, [or if on land," in a certain close," or "in a certain common there called ———,”] took the cattle, (or “goods and chattels,” or “the corn,") to wit, &c. of him the said A B, of great value, to wit, of the value of . and unjustly detained the same against sureties and pledges, until, &c. wherefore the said A B saith that he is injured, and hath sustained damage to the value of 501.(0) and therefore he brings his suit, &c. Commencement and conclusion in King's Bench. (to wit.)(g) A B complains of CD, being in the custody of the marshal, of the marshalsea of our lord the now (m) See the precedents, 2 Rich. C. P. 346. Co. Ent. 314. b. and the notes to the last precedent which are applicable. (n) As to the necessity for this allegation, see Co. Ent. 814. b. 2 Rich. C. B. 346. 1 Saund. 74. n. 1. (0) In replevin by plaint the sheriff may hold plea in his county court to any amount though above 40s. by virtue of the statute Marlbridge, 2 Inst. 139. 312. 2 Rich. C. P. 347. (p) It is in general advisable to intitule the declaration specially, see the note, ante, 1. n. (a), and 2 Saund. 1. 11. 1. (9) In trespass to persons or to personal property the venue is tran king, before the king himself, of a plea of trespass. For Commence conclusions. * 368 that(r) the said CD, on the day of, in the year of ments and our Lord -(s) with *force and arms, &c.(t) made an assault, &c. to wit, at, &c. [Here state the trespasses according to the facts, and as in the subsequent precedents, and conclude as sitory, unless in actions against justices of the peace, constables, &c. ante, vol. 1. Index, tit. Venuc. 21 Jac. I. 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 is usual to add a count de bonis as, portatis, in order to avoid the danger of misdescription of the local situation in the first count, 1 T. R. 479. (r) The word whereas or wherefore, the defendant committed the trespass, would in K. B. be bad on special demurrer, ante, vol. 1. Index, tit. Declaration. 2 Salk. 636. 1 Stra. 621. Com. Dig. Pleader, C. 86. Andr. 282. But when the proceedings are by original, or in C. P. 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. (s) 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, 395. 391. Though in trespass for debauching a daughter, or for crim. con. the rule is otherwise, 6 East, 391. Ante, 265. n. (r). 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, Bull. N. P. 86. Com. Dig. Pleader, 3 M. 10. 1 Saund. 24. n. 1. Formerly it was usual to declare with a continuando, as in 1 Saund. 24. 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 day of exhibiting this bill, (or in C. P. "between that day and the com mencement 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, Bull. N. P. 86. 1 Saund. 24. n. 1. 2 Saund. 5. n. 3. Co. Lit. 283 a Com. Dig. Pleader, C. 19. (t) A trespass should be stated to have been committed vi et armis, Commence ments und conclusions. Conclusion. follows: And other wrongs(u) to the said AB then and there did against the peace of our said lord the king,(x) and to the damage of the said A B, of 1.(y) and therefore he brings his suit, &c. Pledges, &c. *In the Common Pleas. * 369 -next after in Term, 47 Geo. III. The like in (to wit.) CD was attached to answer A B of a the common plea, wherefore he the said C D with force and arms, &c. made pleas. (z) Writ part. an assault upon the said A B, to wit, at, &c. and there gave and struck, &c. Conelusion of rit part. [The declaration in trespass in the Common Pleas, usually recites the writ supposed to have been issued, and states the different acts of trespass at length in one or more counts, but without particularizing the time when the trespass was committed, the number or quantity of the goods, &c. taken, or the value thereof, or the amount of the damage sustained, see 1 Saund. 318. n. 3. and the precedents of declarations for trespass to the person, in 9 Wentw. 16, 17. for trespass to personal property, id. 65. and for trespass to real property, id. 113. and Boote's suit at law, 193, 194. The declaration then proceeds as follows: And other wrongs to the said A B, then there did to the great damage of the said ♫ B, and against the peace of our lord the now Com. Dig. Pleader, 3 M. 7. but the () As to the alia enormia, see 1 (x) The declaration in trespass should be contra pacem, Com Dig. Pleader, 5 M. 8. but the omission is gided unless the defendant demur specially, ante, vol. 1. Index, tit. Contra Pacem. (y) Any sum sufficient to cover the amount of the damages, which it may be probable the jury will give. (z) Observe the notes to the last precedent. This is the usual mode of declaring in trespass in the common pleas, but to avoid the prolixity and expense occasioned by the recital'o the supposed writ, it may be advisable to adopt the next form, see the notes thereto. ments and king, &c. And thereupon the said A B by E F his attorney Commence complains, for that the said CD on, &c. with force and arms, conclusions. &c. made an assault upon the said A B, to wit, at, &c. and then Count part and there gave and struck, &c. [Here state the trespasses precisely as in the preceding part of the declaration, with the addition of time, number, quantity, and value, as in the count part of the precedents, above referred to, and conclude as follows:] +And other wrongs to the said A B then and there did, to Conclusion. the great damage of the said A B, and against the peace of our said lord the king. Wherefore the said A B saith that he is injured, and hath sustained damage to the amount of —. and therefore he brings his suit, &c. In the Common Pleas. [Omit Pledges.] * 370 next after in-Term, 47 Geo. III. , (to wit.) CD was attached to answer A B, of a plea of trespass, and thereupon the said A B, by E F his attorney, complains against the said C D, for that the said C D, on, &c. with force and arms, &c. made an assault, &c. to wit, at, &c. [here state the trespasses as in the King's Bench, and as in the count part of the last precedent, and according to the facts, and which may be stated as in the following precedents, and conclude as in the last precedent from the obelisk.] The like in the common pleas in amore concise form. (a) (a) It appears from 1 Saund. S18. n. 3. that at the present time a declaration in trespass in the common pleas, or by original in the king's bench, would probably be deemed sufficient, though it merely state as above, that the defendant was attach VOL. II. ed to answer the plaintiff in a plea of [ 42 ] Commencements and conclusions. In the Exchequer of pleas. next after in Term, 47 Geo. III. The like in the exchequer.(6) day of (to wit.) A B, a debtor to our sovereign lord the now king, cometh before the barons of his majesty's exchequer, on- the in this same term, by E F his attorney, and complains by bill against C D present here, in court, the same day, of a plea of trespass, for that, &c. [proceed precisely as in King's Bench, ante, 367. and conclude as ante, page 4. n. (0).] *371 For an assault spitting in *1. TO PERSONS [Commencement and conclusion in King's Bench, Common face, pulling Pleas or Exchequer, as ante, 367 to 370.]-For that(d) the said nose and hair, pulling about, beating with CD on, &c.(e) with force and arms,(ƒ) &c. made an assault sticks and fists, upon the said A B, to wit, at, &c.(g) and then and there spit in the face of him the said A B, and with great force and tearing violence, seized and laid hold of the said A B by his nose, and clothes.(c) greatly squeezed and pulled the same, and then and there plucked, pulled and tore divers large quantities of hair from throwing down, kicking and (b) Observe the notes to the precedent, ante, 367, 368. which are in general applicable. (c) See the precedents, 9 Wentw. Index, 3 to 9. and observe the notes to the precedents, ante, 367 to 370. The principal formal allegations necessary to be attended to in framing 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. 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 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. (d) The word "whereas" would be improper, ante, 367. note (r). (e) On divers days and times, would be improper in this case, ante, 367. note (s). (f) Ante, 368. note (t). (g) The venue is in general traysitory, ante, 367. note (q). |