2 Mass. 358 | Mass. | 1807
The opinion of the Court was afterwards delivered as follows, by
This is an action of trespass for an assault and battery, and a verdict has been found for the plaintiff upon the general issue. The defendant now moves in arrest of judgment for a defect in the declaration. The defendant was attached to answer the plaintiff in a plea of trespass for that whereas [ *361 ] *the defendant, at the time and place mentioned, with force and arms committed the trespass complained of. It is said that this manner of laying the trespass is by way of recital, and not sufficiently certain and positive to admit oí a legal judgment after verdict. A count in trespass of this form, when the proceedings were in Latin, was called a declaration with, a quad cum, whereas being substituted for cum. In examining the cases on this point, it is very certain that formerly declarations in trespass with a quad cum were holden bad, and that no judgment could be rendered thereon, even after verdict; and the defect was not considered as cured by any of the English statutes of amendment or jeofails. For many years past, the judges in Englaxid have appeared dissatisfied with these decisions: and, after several attempts, it is now holden that a declaration of this description filed in the Common Picas is not bad, even on special demurrer. Much legal astutia is discovered in the reasoning which has led to this conclusion. To explain it, it mus' be remembered that a count in the Common Pleas recites the writ, and this recital is considered as a part.of the count. Thus, in trespass for an assault and battery with a quad mm, the defendant is
The first attempt was made in the case of Norman vs. George.
Four years after this, in the case of Warren vs. Lapdon,
Notwithstanding the Common Pleas would not arrest the judg ment for this defect, an attempt was made in the King’s Bench, in the case of Douglass vs. Hall,
Afterwards, in the case of White vs. Shaw,
I have found no decision of the Court of King’s Bench, since the proceedings were in English, on the effect of whereas in a count in trespass, when introduced in proceedings by a bill, in which is not contained the interrogative ivhy.
Thus far we have considered the authorities in the books. The general rule which governs in deciding on the forms of declarations, in all cases, is that they should with sufficient certainty describe the gravamen, that the defendant may know what to answer; and certainty to a common intent is sufficient. But there is a greater strictness in the rule, in actions where the consequences of a conviction are penal to the defendant, than in others. In assumpsit, it has been determined as long ago as the case of Ernly vs. Lord. Falkland & Al.
To relieve parlies from the consequences of objections to mere informality, in legal proceedings, the 'statute of Oct. 30,1784, beside vesting the Court with a general power to order amendments on motion, enacts that “ No summons, writ, declaration, process, judgment, or other proceedings in Court, or course of justice, shall be abated, arrested, quashed, or reversed, for any kind of circumstantial errors or mistakes, where the person and case may be rightly understood by the Court; nor through defect or want of form only.” In the action before us, the person and case cannot be misundei - stood by the Court from the unnecessary use of the word “ whereas.” Its insertion is a mere technical mistake in form, and not a substantial error; and we think, with Mr. Justice Dennison, that it is mere surplusage, and after verdict shall be rejected. It is not necessary to decide what judgment would have been given, had the defendant demurred specially to this declaration. But as it is a matter of practice, and the negligence or unskilfulness of attorneys may again bring up the question, we are fully satisfied that, as the mistake is merely formal, and not substantial, a general demurrer would not avail the defendant. As we are not satisfied with the reason of the judgment in the case of White vs. Shaw, if the defendant should demur, and assign this mistake specially for cause of demurrer, we think the exception must prevail.
We are sensible that this opinion is against the judgment of the Court in the case of Holbrook vs. Pratt. By the present system of administering justice by this Court, the judges on the circuit have not time to deliberate, or to examine books, on any subject: Under these circumstances, it would be surprising if a mistake were not sometimes made by the judges. This apology, which we make for others, we hope the candor of the public will allow to the present judges.
Let judgment be entered according to the verdict.
Fitzg. 255.
1 Barnes’s Notes, 176
]0) 1 Wils. 99.
2 Wils. 203.
2 Salk. 636.
Hard. 1, 103
2 Salk. 636. — 1 Str. 621.— Com. Dig. Pl. C. 86.—1 Lev 194. —2 Str. 1151, 1162 —1 Chit. P. 375. — 1 Wilson, 99.-7 Johns. Rev. 109.