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then to sell it and divide the proceeds among certain residuary legatees, held, that the real estate is in equity to be considered as money, from the death of the testator, for all the purposes of the will; and that if any of the residuary legatees who were alive, and capable of taking at the death of the testator, die before the time of sale, their shares go to their next of kin as personal property. Reading v. Blackwell, Bald., 166.

$20. A clause in a will was as follows: "I give and bequeath to my brother T. C.," an alien, "all the proceeds of my estate, real and personal, which I have herein directed to be sold, to be remitted to him accordingly as the payments are made,” etc. Held, that the legacy given to T. C. was to be considered as a bequest of personal estate, which he was capable of taking for his own benefit, though an alien. Craig v. Leslie, 3 Wheat., 563.

§ 21. Conquered or ceded territory. Although a sovereign who acquires an inhabited territory acquires full dominion over it, this dominion is never supposed to divest the vested rights of individuals to property. The people change their sovereign, but their right to property remains unaffected by the change. Delassus v. United States, 9 Pet., 117.

PROTEST.

See BILLS AND NOTES.

PROVISIONAL COURTS AND GOVERNMENTS.

See WAR.

PROXIMATE CAUSE.

See DAMAGES; TORTS.

PUBLICATION.

See WRITS.

PUBLIC ENEMY.

See CARRIERS; WAR.

PUBLIC LANDS.

See LAND.

PUBLIC LAW.

See CONSTITUTION AND LAWS; War,

PUBLIC MONEY.

See GOVERNMENT; OFFICERS,

PUBLIC POLICY.

See CONSTITUTION AND LAWS.

PUBLIC PRINTING.

§ 1. The commissioner of patents communicated to the senate a portion of his annual report, and on the ensuing day the same communication was made to the house of representatives. Each house having ordered it printed, the printing was assigned to A. Shortly afterwards the other portion of the report was sent to both houses, and both of them, on the same day, ordered it to be printed, and the printing of it was given to B. Held, that whether the two portions of the report constituted one document, and which house passed the order first, were questions requiring the exercise of judgment and discretion in the superintendent of public printing, who had something more than a ministerial duty to perform, and that a writ of mandamus would not lie to compel him to deliver the report to A. United States v. Saeman, 17 How., 225.

§ 2. The government printing office is not a bureau of any of the executive departments; hence the employees of that office, not being specially enumerated, are not included in the resolution of February 28, 1867 (14 Stat., 569), and consequently are not entitled to additional compensation under that resolution. United States v. Allison, 1 Otto, 303.

PUBLIC RECORDS.

§ 1. Right to copy of.― Patents are public records, of the contents of which all persons are bound to take notice. Hence, any person is entitled to a copy of a patent on making proper application and tendering the proper fees. Boyden v. Burke, 14 How., 575.

§ 2. Any one who will pay the fees is entitled to copies of public records; but if his demand for them is accompanied by insulting language, it may be refused. Ibid.

§ 3. But where a second demand is made in a proper manner, unaccompanied with any insulting missive, the government official is not justified in refusing such demand on account of the former misconduct of the applicant, or to enforce an apology by withholding his rights. Ibid.

PUEBLO LANDS.

See LAND.

PUIS DARREIN CONTINUANCE.

See PLEADING.

PUNISHMENTS.

See CONSTITUTION AND LAWS; CRIMES.

PURSER OF THE NAVY.

See FEES; OFFICERS; WAR.

PLEADING.*

[For averments of citizenship, see COURTS.]

I. PLEADING AT LAW, §§ 1-1132.

1. Declaration, §§ 1-483.

a. In General, §§ 1-136.

b. Certainty and Sufficiency,
SS 137-321.

c. Written Instruments, §§ 322-
419.

d. Statutes, SS 420-483.

2. Plea, SS 484-945.

a. In General, §§ 484–649.

b. General Issue, § 650-732.

c. Special Pleas in Bar, §§ 733-878.
d. Puis Darrein Continuance,
S$ 879-890.

e. Dilatory Pleas, SS 891-945.
3. Demurrer, §§ 946-1059.

4. Replication and Subsequent Plead-
ings. Issue, SS 1060-1101.

5. Profert and Oyer, $ 1102-1132. II. PLEADING IN EQUITY, §§ 1133-1709. 1. Bill. Cross-bill, §§ 1133-1344.

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I. PLEADING AT LAW.

1. The Declaration.

a. In General.

SUMMARY-Variance between writ and declaration, § 1.- Venue for trial sufficient, § 2.Venue necessary for every material fact, § 3.— Venue in margin sufficient, § 4.- Example of good venue. § 5.— Count in wrong form of action, § 6.— Proper joinder of count improperly framed, §7.- Averment of fact of partnership not always necessary. § 8.- Money had and received against joint defendants, § 9.— Trover against joint defendants, § 10.— Joinder of causes by plaintiff in two capacities, §§ 11, 12.- Facts within judicial notice not averred, § 13.-Want of formal conclusion, § 14.- Averment of act by agent, § 15.-Surplusage, § 16.- Assumpsit on an agreement improperly sealed, § 17.- Averment of citizenship at time of filing declaration, § 18.— Averment of title to note in suit, § 19.— In suit on note allegation of demand at place of payment not necessary, § 20.- Distinction between declarations in debt and in assumpsit, § 21.— Declaration for infringement of patent, § 22.-Setting out instrument declared on, § 23.- Joinder of torts in one count, § 24.- Informality in conclusion for damages, § 25.

§ 1. A variance between writ and declaration should be objected to by plea in abatement, and after a plea of the general issue it is too late for the defendant to take the objection or for the court to notice it. McKenna v. Fisk, §§ 26, 27.

2. In a transitory action it is not necessary to lay in the declaration the true venue, and under a scilicet the venue for trial. It is sufficient simply to lay the venue for trial. Ibid. § 3. A venue is necessary for every material traversable fact; but where none is laid in the declaration the venue in the margin will be sufficient. Cocke v. Kendall, §§ 28, 29.

§ 4. A venue is a formal rather than substantial part of the declaration in a transitory action, and may appear in the margin as well as in the declaration itself. Cage v. Jeffries, $$ 30-32.

5. A declaration on a note dated at Cincinnati, which described the note as dated at Cincinnati, in the state of Ohio, to wit, at Indianapolis, in the state of Indiana, is good, as the words, "in the state of Ohio," may be rejected as surplusage. Especially is this true when it is proved that Cincinnati is in the state of Ohio. Drake v. Fisher, §§ 33, 34.

*Edited by FRANK A. FARNHAM, ESQ., of Boston, Massachusetts.

§ 6. A count in assumpsit upon a writing obligatory is bad, as debt or covenant would be the appropriate remedy. French v. Tunstall, §§ 35, 36.

§ 7. Such a count, however, is still assumpsit, and may be joined with a good count of the same kind without producing a misjoinder of actions. Ibid.

§ 8. The averment of the fact of partnership is unnecessary when the instrument declared on shows a joint liability of the defendants. Davis v. Abbott, § 37.

§ 9. A declaration for money had and received against joint defendants must show that the money was received by them jointly. Simmons v. Spencer, §§ 38, 39.

§ 10. A declaration in trover against joint defendants for money received and converted to their own use may be maintained only by showing that the money received and converted in turn by the various defendants was the identical money belonging to the plaintiff. Ibid.

§ 11. Joinder of causes of action by a plaintiff in his personal and in his official capacity is a fatal defect at any stage of the suit. Picquet v. Swan, SS 40-42.

§ 12. A plaintiff is suing in his official capacity as administrator when the statement of his right of action, arising under French law, taken in connection with the French law, shows that his right of action is only as administrator. Ibid.

§ 13. A declaration depending upon provisions of a municipal charter need not set out the charter, as the latter is within the judical notice of the court. Fauntleroy v. Hannibal, § 43. § 14. Want of a formal conclusion to the damage of the plaintiff is not an open question on error. Bank v. Guttschlick, §§ 44-48.

§ 15. An allegation that a bank made an agreement "through the president and cashier " is sufficient without showing their authority. Ibid.

§ 16. Where the cause of action is a refusal to convey lands, allegation in the declaration that plaintiff was evicted will be treated as surplusage. Ibid.

§ 17. Assumpsit will lie against a bank on an agreement sealed not with the corporate seal, but with that of the president and cashier. Ibid.

§ 18. Averment that plaintiff is a citizen of a certain state is sufficient without averring that he was when the writ was brought. Thompson v. Cook, §§ 49-52.

§ 19. Where title to a note was derived through a firm it is not necessary to aver the names of the partners. Ibid.

§ 20. When the note sued on is payable at a certain place the declaration need not allege that a demand was there made. Ibid.

§ 21. A declaration in debt upon a simple contract should describe the subject-matter of the debt as in assumpsit, and should aver that the defendant agreed to pay. The use of the word promised would be bad, as this word is indicative of assumpsit, and in assumpsit a breach is to be alleged, while in debt it is not. Metcalf v. Robinson, § 53.

§ 22. A declaration on an infringement of a patent need not aver when the patent was made, nor to whom the application was made, nor that the commissioner had authority to grant the patent. Wilder v. McCormick, §§ 54-59.

§ 23. A declaration purporting to set out an instrument according to its import and effect,

and really setting it out in its words and figures, is not thereby defective. Ibid.

24. Several torts of one kind may be properly joined in one count. Ibid.

§ 25. A declaration commencing in case, and concluding with a demand for actual damages, is good. Ibid.

[NOTES.-See §§ 60-136.]

MCKENNA v. FISK.

(1 Howard, 241-250. 1843.)

ERROR to the Circuit Court for the District of Columbia.
Opinion by MR. JUSTICE WAyne.

STATEMENT OF FACTS.-The declaration in this case contains three counts. It is alleged in the first and third that the defendant, with force and arms, in the county of Washington, seized, took, detained and destroyed the goods and chattels belonging to the plaintiff, and also the shanty or storehouse in which the goods were found, of the value of $2,000. The only difference in the counts is in the specification of the goods destroyed. In the second count the defendant is charged with having, with force and arms, in the county of Washington, broke and entered a certain other shanty or temporary storehouse of

the plaintiff, situate and being in the county of Washington. The defendant pleaded not guilty, and issue was joined on that plea.

The plaintiff, on the trial, in support of his case, offered evidence to prove that the defendant, with a large force of armed men, came to the storehouse or shanty of the plaintiff in Alleghany county, Maryland, entered into the same, and took and carried away the goods and chattels stated in the declaration, etc., and other evidence was offered to show the value of the goods. The court refused to permit the evidence to be given to the jury. Upon an exception to this ruling the case is now before this court.

26. A plea of "not guilty" in an action of trespass waives a variance between the writ and the declaration.

It was first urged in argument that as the original writ in the case declared that the defendant, with force and arms, etc., broke into the storehouse of the plaintiff, etc., it was such a declaration of the nature of the complaint which the defendant was required to answer that it must be considered as the gist of each count, and that there was such a variance between the counts and the writ that it would abate the writ. Admit that this fault exists, and that the nature of the plaintiff's demand must be mentioned in the writ, that the defendant may know before he appears in court the kind of complaint he is required to answer, and that the declaration afterwards filed, or the writ, or both, shall be deficient in some legal requisite, or shall contain irregularity, informality or mistake which would abate the writ, the defendant is not here in a situation to avail himself of the fault. He has pleaded not guilty. This plea refers to the counts and not to the writ. It puts the plaintiff to prove the material allegations in his declaration, and the defendant assumes by it to contest them. To allow, then, a defendant, after the general issue has been pleaded, to avail himself of any defect or mistake in the writ, or variance or repugnancy between the count and the writ, would be not to try the cause at issue, but would have the effect to take it from the jury and to place it before the court upon a point of pleading which has not been pleaded, and which is unconnected with the merits of the cause. Such mistakes, either in the writ or in a variance between the count and the writ, must be taken advantage of by a plea in abatement. And if the mistake or fault is apparent on the face of the declaration, such as a misstatement of the cause of action, it will be a good cause of demurrer. 3 Black. Com., 301; Com. Dig., Abatement, G., I., 8; Willes, 410; 1 Show., 91; 1 Salk., 212; Duvall v. Craig, 2 Wheat., 45, 55. The case, then, is not in a condition to enable the defendant to avail himself of the objection. But is there any such variance in this case? We think not. The writ mentions a trespass with force and arms upon the storehouse of the plaintiff, and the seizure and destruction of goods. This puts the defendant in possession of the complaint against him, or what he will be required to answer before he appears in court. It is but the commencement of the suit, and is sufficient if it advises the defendant of the cause of action, without those particulars which must be set out in the declaration, which, when filed, gives the defendant an opportunity to use any of those defenses or pleas to which he may he entitled by the rules of pleading.

27. Trespass to personal property is a local action, and venue for trial only

need be laid.

It was also urged that the venue laid in each of the counts was so imperfect that the evidence offered could not be received to support either of them. That it could not be received under the second count, for that was quare

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