Declaration-manner of stating the cause of action-(continued.)
certainty, 151, and generally shewing a certain and exact performance,
152. Averment of request, 153, in what cases general, 153, in what ca.
ses special, 153; consequence of not alleging special request, 154; what
equivalent to it, 154. Averment of notice, how made, 154.
Conclusion of the Declaration, 154, in trespass and ejectment, 154, in debt
qui tam, 154, 155, in other cases, 154. Contra pacem, when necessary,
155; omission of it, matter of special demurrer, 155. Ad damnum, to be
laid in all personal and mixed actions, except debt qui tam, 155; in
what cases the full damages to be laid, 155; damages given by the jury
cannot exceed the sum in the ad damnum, 155, but if they do, how rem-
edied, 155. How damages laid in detinue, 156; how in debt, 156;
how in ejectment, 156; how in other cases, 155. Special damage, what,
and in what cases laid, 156; how laid, 156; if not proved, in what ca-
ses plaintiff may still have his general damages under the ad damnum,
156, in what not, 156. Pledges no longer to be inserted, 156.
Joinder of Counts, 157. In real and mixed actions, 157. In personal ac-
tions, 157: not two for the same cause of action, without leave of a
judge, 157; consequence of inserting them, 158. What counts may be
joined, 158: in assumpsit, 158, debt, 159, covenant, 159, detinue, 160,
trespass, 160, case, 160, trover, 160; in actions by executors, 161, in ac-
tions against executors, 161, in actions by assignees of bankrupts, 161;
each count considered as a separate action, 160, but there cannot be one
count against one person and another against another, 162. Misjoinder
of counts, how objected to, 162; how remedied, 162.
Defects in a declaration, in what cases aided, 162: by the bar, 162; by
verdict, 163, at common law, 163-166, and by the statute of jeofails,
166. In what cases a declaration may be good for part, though bad for
the residue, 166.
Declarations of a bankrupt, in what cases evidence, 459, 460.
Declarations of party, when part of the res gesta, when evidence for him, 362.
Declarations of a witness at a former time, in what cases, and how evidence
to discredit him, 486, 487.
Declaration in an action by the king, 1.
De consuetudinibus et servitiis, writ, abolished, 15.
Decree in equity, how proved, and in what cases evidence, 399.
Deeds, how pleaded, 131, &c. 224; as to date, 103, 224; to be pleaded as
they operate, 131, 332; must be alleged to be under seal, 132; delivery,
never alleged, 132; only such parts as are necessary to be stated, 132;
parcels in, how to be stated, 132; to be pleaded with profert, in what
cases, 133-137.
Deeds, how proved, 418; as to the contents, 418, 372, 376, 378-381; as to
the execution, 419-423, 373; in what cases the execution presumed,
Deeds, how proved,-(continued.)
364; they must be properly stamped. 425; if lost, it will be presumed
that they were duly stamped, 368.
Deed, in what cases parol evidence admitted to explain it, 443-447; but
not to control or to add to or vary from it, 440—442.
Deed, indorsement on, in what cases deemed part of it, 427.
Deed, effect of, as an admission, 352, 353; as an estoppel, 205-207.
Deed enrolled, how proved, 396, 392, 419; profert of, 138.
Deed to lead or declare the uses, how pleaded, 143.
Deed, oyer of, 168. See " Oyer."
Default of legal form, plea of, in abatement, 292.
Defects in a declaration, in what cases aided, 162; by the bar, 162; by the
verdict, &c. 163; declaration may be good in part, though bad for the
residue, 166.
Defects in pleas, in what cases aided, 240; by the replication, &c. 240; by
the verdict, 241; plea, bad in part, is bad for the whole, 242; except in
a plea of set-off, 242.
Defects in a replication, in what cases aided, 261; by the rejoinder, 261; by
the verdict, 262; replication bad in part, is bad for the whole, 262.
Defects in a rejoinder, in what cases aided, 269.
Defence, formerly in the commencement of the plea, but not now, 168.
Defence, matter of, in a plea, 171; to be proved as laid, 345.
Defendant, death of, in what cases pleadable in abatement, 290, 297.
Defendants may join in pleading, 239; effect of pleading jointly, 240; may
sever in pleading, 239; in what cases, 239: may join or sever in plead-
ing, in abatement, 305.
Defendants, misjoinder of, 71, 290; nonjoinder of, 69, 70, 290.
Defendant, pleas to the person of, in abatement, 288-291.
Defendant, in what cases he may be made a competent witness for his co-
defendant, 470-473.
Defendant, seisin, &c. of, how pleaded by plaintiff, 125, 126.
Against whom the action is brought, 55; real actions, against the im-
mediate tenant to the freehold, 55; quare impedit against the bishop, or
the patron, or bishop, patron, and clerk 55, 56; ejectment against the ten-
ant in possession, 56; personal actions ex contractu against the person
who either expressly or impliedly made the contract, 56; personal ac-
tions ex delicto against the person who did the injury, or who is liable for
it, 56. In what cases a man, may have several actions against different
persons for the same cause of action, 56; in what cases an action against
one of several, at his election, 56.
Joint-tenants, tenants in common, parceners, partners and joint con-
tractors in what cases one may be sued by another. See "Plaintiff,"
post; and see p. 36, 37.
Husband and wife cannot sue one another, 57. In what cases a stran.
ger must sue both, 57; in real actions, 57, in personal actions for debts
due or acts done by the wife, dum sola, 57, for torts by the wife after co-
verture, 57; and for causes of action against her as executrix or adminis
tratrix, 57, 58; in what cases the husband must be sued alone, 57, on the
wife's contracts during coverture, 57; in what cases the wife may be
sued alone, 58, if the husband be transported, 58. Consequence of feme
sole marrying pending the action, 58. Nonjoinder or misjoinder of hus.
band and wife, how taken advantage of, 58.
Master and servant: in what cases the one may be sued by the other,
see title "Plaintiffs," post; and see p. 42. In what cases the master may
be sued upon the contracts of the servant, 58, 59, and for damage caused
by his negligence or unskilfulness, 59; for forcible injuries by the servant
done wilfully, the action may be against the servant, 59, or against the
master, if he commanded it, 59; but if it arise from the negligence or un-
skilfulness of the servant, the action may be against either, 60. In what
cases an action lies by a stranger against a factor, or agent, in what ca-
ses against the principal, 60; in what case an action lies against an of
ficer for the act of his deputy, 61, 62. In what case an action lies against
either captain or owners of a ship, 62, for goods shipped on board and
not delivered, 62, for damage occasioned by the negligence or unskilful.
ness, 62, for victuals or stores, 62, or for wages, 63.
Tenant and reversioner; real actions, must be against the immediate
tenant to the freehold, 63; ejectment against the tenant in possession,
63; and personal actions relating to the land, as for damage by defect of
fences, against the occupier, 63.
Assignee in what cases the assignee of the reversion may be sued by
the lessee or his assignee, 63; in what cases the assignee of the term may
be sued by the lessor or his assignee, 63.
Executors or administrators may be sued for the debts or upon the con-
tracts of the deceased, 63; in what cases trespass or case will lie against
them for the acts of the deceased, 64, in what not, 64; in what cases they
may be sued as assignees of a term, 64; in what case they or the heir
may be sued on the bond of the ancestor, 64.
Justices of peace and constables, actions against, 64; in what case
against the constable, in what not, 64.
Consequences of misnaming the defendants, 65; or of declaring
against more defendants than are named in the writ, 65.
Joinder of
defendants, 65.
Parceners must be sued jointly, 65; so must joint-tenants, 65; so must
tenants in common, 66, but in replevin tenants in common must avow
severally for rent, though jointly for damage feasant, 66.
Joint contractors, &c.: in actions ex contractu all the contracting
parties must be joined, 66; as in covenant, when the covenant is joint and
not several, 66; account, 67; in debt, unless one be dead, and then, the
death being averred, the action may be against the survivor, 67; so in
assumpsit, 67; and in detinue, 67. And the same in actions which,
though ex delicto in form, are ex contractu in substance, 67. In actions
ex delicto, all or some may be sued jointly, or each sued separately, 67,
68.
How in quare impedit, 68; and ejectment, 68.
Bail may be sued jointly or separately, whether upon bail-bond, 68, or
on recognizance, 68.
Partners must be sued jointly, 68, 69; if one die, the action must be
against the survivor, 69; how, in the case of dormant partners, 69; only
those to be made defendants who were partners when the cause of action
accrued, 69.
Executors: when the action may be against all, 69, or against those
only who have proved the will, 60, or against one only, 69; if one die,
action against the survivor, 69. Action cannot be against executors and
heir or terre tenants, 69. Administrators, 69,
Nonjoinder, consequences of, in action ex contractu, 69, 70, in actions
ex quasi contractu, 70, in actions ex delicto, 70, in actions against exec-
utors, &c. 70. Plea of nonjoinder must state the residence of the party
not joined to be within the jurisdiction of the court, 70, and the affida-
vit must state the residence with certainty, 70; replication, 70; subзe-
quent action against all, 70, 71, form of declaration therein, 71.
Misjoinder, consequences of, in actions ex contractu, 71, in actions ex
quasi contractu, 71, in actions ex delicto, 71, and in real actions, 71.
How misjoinder may be aided, 71.
Deforcement, remedies for, 8, 9.
De injuria sua propria, replication, 249; in what cases, 249; form of it, 251;
conclusion of it, 254.
Delicto, actions ex, who to be made defendants in, 56, 67; cause of action,
how stated in, 92-94; how far to be proved as laid, 340–343.
Delivery of a deed, never alleged in pleading, 132.
1. For what defects in pleading it is used, 308; to what pleadings a demur-
rer may be pleaded, 308; if there be a demurrer to part, there must be a
plea or pleas to the residue, 308; if there be a demurrer to the whole de-
claration, and any one count be good, plaintiff shall have judgment, 309;
defendant cannot demur, and plead to the same part, 309; demurrer to
pleas by several defendants, 309; general demurrer for defects in sub.
stance, 309, 310; special demurrer for defects in form or substance, 310,
2. Forms, 311; of a general demurrer to a declaration, replication, or other
pleading by a plaintiff, 311, 312; and joinder thereto, 312; of a general
demurrer to a plea in bar, or other pleading by a defendant, 312, and
joinder thereto, 312; of a special demurrer, 313.
3. Effect of a demurrer, 313; of what matters it is a confession, 313, 314;
it lays open the whole record for the judgment of the court, 314; judg.
ment upon demurrer, 315.
Denial of cause of action by the plea, 177; general traverse, 177–180;
general issue, and of what it is a denial, 178-180; denial of particular
facts, 181; special traverse, 181-195; title and colour, 195-198.
Denial of the defence by the replication, 243.
De parco fracto, writ, 16.
Departure in a replication, 258; in a rejoinder, 265-268.
Dependent covenants, 87, &c. See "Condition precedent."
Depositions, 352, 376; in the Admiralty court, how proved, 401; in the Ec-
clesiastical court, how proved, 401; in equity, how proved, and in what
cases evidence, 398, 399; before magistrates, 400; on inquisitions, in
what cases evidence, 372; upon interrogatories, proved by office copies,
401.
Deputy. See " Officer and Deputy."
Derationabili parte, writ of right, abolished, 9.
Descent, tite by, how pleaded, 126, 228.
Descent, can no longer toll entry, 6.
De secunda superoneratione, writ of, 13.
De son tort demesne, 249. See "De injuria.”
Detainer, unjust, of goods, &c., remedy for, 16.
Detinue, action of, in what cases it lies, 16; parties, 51, 67; limitation of,
31; venue in, 78; damages, how laid, 156; joinder of counts in, 170;
general issue, of what it is a denial, 179.
Devisee, how pleaded, 144.
Devisee, actions by, 46.
Devisee cannot be a witness to support a will, unless produced as a witness to
Dignities, remedies for a right to, 14.
Dilapidations, remedy for, 11.
Diploma, not evidence, in what cases, 413.
Disclaimer, writ of right sur, abolished, 9.
Discontinuance, by husband, of his wife's estate, 8. Discontinuance by ten-
ant in tail, remedy for, 8; formerly the only remedy was by writ of for-
medon, 8, now by entry or ejectment, 8.
Discontinuance, by the plea not answering the whole of the declaration, 173,
300, 308.
Disseisin, remedies for, 7, 8; disseisin at election, in what cases, 7.
Distress for rent, services, &c. 14, 15; for annuities, 14; time limited for,
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