40 Conn. 156 | Conn. | 1873
It is an elementary principle of the law of pleading that there must he an allegation in the declaration of the time when any material or traversable fact took place. If no time should he stated the declaration would he ill on demurrer. 1 Swift Dig., 601, 603, 640, 652, 651, 702; Story v. Barrell, 2 Conn., 665.
The allegation in the declaration “ that the defendants heretofore did seize &c.,” cannot he regarded as a sufficient allegation of the time when the trespass took place. It is in fact no allegation of any time. The word heretofore simply denotes time past in distinction from time present or time future. It is only one of the three great divisions into which all time is divided by grammarians, time past, time present,
The plaintiff further claims that the statute which provides that “no.writ or pleading shall be abated, set aside, or reversed for any kind of circumstantial errors or defects, if the person and cause can be rightly understood,” (Gen. Statutes, tit. 1, sec. 90,) practically sets aside special demurrers. But that statute was never designed to affect demurrers. It has. been in existence nearly two hundred years, and has been preserved unaltered during this long period of time, though revision after revision of the statutes has been made and scores of. cases have been tried in the higher courts upon special demurrers, no question being made but that such pleas were proper. The following cases seenr fully to recognize the propriety of special demurrers, and virtually decide the question against the plaintiff. Bradley v. Davenport, 6 Conn., 1; Kilbourn v. The State, 9 Conn., 560; Canfield v. Merrick, 11 Conn., 425; Holly v. Brown, 14 Conn., 255; Hotchkiss v. Butler, 18 Conn., 286; Darrow v. Langdon, 20 Conn., 288; Raymond v. Sturges, 23 Conn., 134; State v. Miller, 24 Conn., 522; Taylor v. Knapp, 25 Conn., 510; Havens v. Hartford & N. Haven R. R. Co., 26 Conn., 220; Same v. Same, 28 Conn., 69; Church v. Meeker, 34 Conn., 421.
In this opinion the other judges concurred.