Declaration. a new title, are not allowed. Gale v. Babcock, 4 Wash. C. C. R. 199. this does not warrant the conclusion drawn from it. The defendants were Josiah and Philip Turner; William Turner was not a defendant; and 12. In a count on the 50th section of the revethe terms, "the said defendants," could not in-nue act of the 3d March, 1799, ch. 128, it is not clude him. There was no variance between the necessary to state the time or place of importacontract declared upon in the second count, and tion, nor the vessel in which it was made; but the contract proved upon the trial, with respect it is sufficient to state that they are unknown to to the parties thereto. Schimmelpennick v. Turner, the district attorney. Locke v. The United States, 6 Peters, 1. 7 Cranch, 339; 2 Cond. Rep. 521. 13. The plaintiff cannot give in evidence that the variance was the effect of mistake or inadvertence of the attorney; and that the note produced was that intended to be described in the declaration. Sheehy v. Mandeville, 7 Cranch, 208; 2 Cond. Rep. 476. 14. In all actions on special agreements or written contracts, the contract given in evidence must correspond with that stated in the declaration. It is not necessary to recite the instrument in hæc verba; but, if it be recited, the recital must be strictly accurate. If the instrument be declared on according to its legal effect, that effect must be truly stated. If there be a failure in the one respect or the other, an exception for the variance may be taken, and the party cannot give the instrument in evidence. Ibid. turnable the first Monday in March, 1809, the variance is fatal, and the evidence is not admissible. Muns v. Dupont, 3 Wash. C. C. R. 31. 16. A declaration in debt for £860 12s. 1d., founded on a decree in chancery for that sum "with interest from a certain day to the day of rendering the decree," is fatally defective. Fenwick v. Sears's Adm'rs, 1 Cranch, 259; 1 Cond. Rep. 310. 10. Action of debt brought by the Bank of the United States upon a promissory note made in the state of Kentucky, dated the 25th of June, 1822, whereby, sixty days after date, Campbell, Vaught & Co., as principals, and David Campbell, Steeles, and Donnally the defendant, as sureties, promised to pay, jointly and severally, to the order of the president, directors and company of the Bank of the United States, twelve thousand eight hundred and seventy-seven dollars, negotiable and payable at the office of discount and deposit of the said bank at Louisville, Kentucky, value received, with interest thereon, at the rate of six per centum per annum thereafter, if not paid at maturity. The declaration contained five counts. The fourth count stated that the principal and sureties "made their other note in writing," &c., and thereby promised, &c. 15. Where the declaration sets forth that a civil (following the language of the note), and then action was brought, in which the writ was returnproceeded to aver "that the said note in writing, able the first Monday in December, 1809, and the so as aforesaid made, at, &c., was and is a writ-record produced is one in which the writ was reing without seal, stipulating for the payment of money; and that the same, by the law of Kentucky, entitled an act, &c. (reciting the title, and annexing the enacting clause), is placed upon the same footing with sealed writings containing the same stipulations, receiving the same consideration in all courts of justice, and, to all intents and purposes, having the same force and effect as a writing under seal;" and then concluded with the usual assignment of the breach, by non-payment of the note. The fifth count differed from the fourth, principally, in alleging "that the principals and sureties, by their certain writing obligatory, duly executed by them without a seal, bearing date, &c., and here shown to the court, did promise," &c.; and contained a like averment with the fourth, of the force and effect of such an instrument by the laws of Kentucky. The defendant demurred generally to the fourth and fifth counts; and the district court sustained the demurrers. By the court:-The fourth and fifth counts are, upon general demurrer, good; and the judgment of the court below, as to them, was erroneous. They set out a good and sufficient cause of action, in due form of law; and the averment that the contract was made in Kentucky, and that, by the laws of that state, it has the force and effect of a sealed instrument, does not vitiate the general structure of those counts, founding a right of action on the note set forth thereon. At most, they are surplusage; and if they do not add to, they do not impair, the legal liability of the defendant, as asserted in the other parts of those counts. Bank of the United States v. Donnally, 8 Peters, 361. 11. Amendments to the declarations in ejectment, by adding a count stating a duress, under 17. The words of a contract, stated in a declaration, must have the same legal construction as they would have in the contract itself. Wherever, therefore, the contract stated in the declaration contains a clause which the court would have rejected as nonsensical or repugnant, or the inaccuracy of which would have been rectified, such mistake is not fatal. Ibid. 18. Where, in consequence of the amendment in a declaration, by the addition of a new party, without any objection on the part of the defendant, a variance is created between the writ and declaration, it must be deemed to be waived by the defendant, and cannot afterwards be insisted оп. Chirac et al. v. Reinicker, 11 Wheat. 280; 6 Cond. Rep. 310. 19. Where the declaration averred an authority to draw, but not in writing, for one hundred thousand francs, the proof was a letter authorizing blank francs to be drawn for. Held, that this was no variance. Rabaud et al. v. D'Wolf, 1 Paine's C. C. R. 580. 20. Where the declaration sets out an absolute promise to pay the debt of another, and the promise proved is conditional, to pay if the ori ginal debtor do not, the variance is fatal. Trask v. Duval, 4 Wash. Č. C. R. 181. 21. Where the declaration stated that E. Brown was attached to answer, and proceeded to allege Declaration. the drawing of a bill of exchange by Elisha Brown, a bill signed by Elijah Brown cannot be given in evidence. Craig v. Brown, Peters' C. C. R. 139. 22. Where the declaration alleged an undertaking in consideration of a contract entered into by plaintiff to build a ship, and the evidence was of a contract to finish a ship partly built, the variance is fatal. Smith v. Barker, 3 Day, 312. 23. In an action on a bill of exchange protested for nonpayment, it is not necessary to aver that the bill had been protested for nonaccept ance. Brown, Plaintiff in Error, v. Barry, 3 Dall. 365; 1 Cond. Rep. 165. 24. A declaration for labour done or services performed, generally, without specifying them in particular, is good. Edwards v. Nichols, 3 Day, 16. 25. In an action of debt on a protested bill of exchange, under the laws of Virginia, for a specified sum with damages, interest and charges of protest, the declaration must state the amount of the charges of protest. Wilson v. Lennox, 1 Cranch, 194; 1 Cond. Rep. 291. 26. This would be a mere technical objection; but in an action of debt it is essential that the declaration should state the demand with certainty. Ibid. 211. 27. In a declaration, the averment that a promissory note was for value received, is an immaterial verdict and need not be proved. Wilson v. Codman's Ex'rs, 3 Cranch, 193; 1 Cond. Rep. 493. 28. Where a declaration contains an averment of a fact, dehors the written contract, which fact is, in itself, immaterial, the party, making such averment, is not bound to prove it. Ibid. V. 34. Variances between the writ and the declaration are matters pleadable in abatement only, and cannot be taken advantage of on general demurrer to the declaration. Duval v. Craig et al., 2 Wheat. 45; 4 Cond. Rep. 25. 35. Where the parties to a deed covenanted severally against their own acts and encumbrances, and also to warrant and defend against their own acts and those of all other persons, with an indemnity in land of an equivalent value, in case of eviction; these covenants are independent, and it is unnecessary to allege in the declaration any eviction, or any demand and refusal to indemnify with other lands: but it is sufficient to allege a prior encumbrance by the acts of the grantors, &c., and the action may be sustained on the first covenant for the recovery of pecuniary damages. Ibid. 36. A declaration averring that J. C., by his agent A. C., made his promissory note is good. Childress, Ex'r, &c. v. Emory et al. Ex'rs, &c., 8 Wheat. 642; 5 Cond. Rep. 547. 37. It is not necessary in a declaration at the suit of the executor of a surviving partner to set forth the names of the firm by which the note was made. Ibid. 38. An omission in the declaration on a promissory note of the place where it is payable is fatal. So also is the omission of the words "or order," being part of the note. Sebree et al. v. Dorr, 9 Wheat. 558; 5 Cond. Rep. 667. 39. The English practice of requiring a special count in the declaration upon a lost note, in order to let in secondary evidence of its contents, has not been adopted in the United States. Renner v. Bank of Columbia, 9 Wheat. 581. 40. A defective declaration may be aided by the plea, and a defective plea by the replication. United States v. Morris, 10 Wheat. 246; 6 Cond. 41. In an action on a covenant of warranty, it is necessary for the plaintiff to allege in his declaration, substantially, an eviction by title paramount. Day et al. v. Chism, 10 Wheat. 449; 6 Cond. Rep. 181. 29. In an action of debt against the endorser of a bill of exchange, under the statute of Vir-Rep. 90. ginia, it is necessary the declaration should aver notice of the protest for nonpayment. Slacum . Pomery, 6 Cranch, 221; 2 Cond. Rep. 351. 30. The plaintiff declared upon a bond dated 3d October, 1799, and upon oyer the bond appeared to be dated the 3d January, 1799. The variance was held to be fatal. Cook v. Graham's Adm'rs, 3 Cranch, 229; 1 Cond. Rep. 508. 31. A plaintiff may, before verdict, discontinue a count in his declaration, and waive the issues joined thereon. Hughes v. Moore, 7 Cranch, 176; 2 Cond. Rep. 466. 42. An averment that "the said O. had not a good and sufficient title to the said tract of land, and by reason thereof the said plaintiffs were ousted and dispossessed of the said premises by due course of law," is sufficient. Ibid. 43. Where the plaintiffs, in an action of covenant declared both as heirs and devisees, with32. The words of a contract stated in the de-out showing in particular how they were heirs, claration must have the same legal construction and without setting out the will; held not to be as they would have in the contract itself; wher- a fatal defect on general demurrer. Ibid. ever the contract stated in the declaration con- 44. Such a defect may be amended by the tains a clause which the court would have re-thirty-second section of the judiciary act of Sepjected as repugnant, or the inaccuracy of which tember 24, 1789, ch. 20. Ibid. would have been rectified, such mistake is not fatal. Ibid. 33. If the declaration be upon a joint note, and the defendant plead that the note is the separate note of one of the defendants, and was given to and accepted by the plaintiff in full satisfaction of the debt, this plea is bad on special demurrer, because it amounts to a general issue. Van Ness v. Forrest, 8 Cranch, 30; 3 Cond. Rep. 14. 45. It is a general rule in pleading, that when any fact is necessary to be proved on the trial, in order to sustain the plaintiff's right of recovery, the declaration must contain an averment, substantially, of such fact, in order to let in the proof; but it need not contain any averment which it is not necessary to prove. Bank of the United States v. Smith, 11 Wheat. 171; 6 Cond. Rep. 257. 46. Where the count sets forth a demand for Declaration. three thousand six hundred dollars, and the jury | find a verdict for four thousand six hundred and forty-one dollars, it is not erroneous, if the declaration has covered the larger sum in the ad damnum. Mills v. The Bank of the United States, 11 Wheat. 431; 6 Cond. Rep. 373. 47. In debt for a penalty on a statute, the declaration must conclude against the form of the statute, or it will be bad on error. Cross v. The United States, 1 Gallis. C. C. R. 26. 48. In debt for the double value, under the third section of the embargo act of January 9th, 1808, ch. 112, it is not necessary to allege the particular articles which composed the cargo, nor that the owner was knowingly concerned in the illegal voyage. Ibid. 49. In debt for a penalty, an averment "whereby and by force of the laws and statutes of the United States, an action hath accrued," is not a sufficient averment that the act done was against the form of the statute. Ibid. 50. Mere surplusage does not vitiate, and an immaterial averment may be rejected; but where an averment is of substance, and is more specific than is necessary, and cannot be rejected without a fatal defect, it must be proved as laid. The Friendship, 1 Gallis. C. C. R. 45. 51. If a declaration on a penal statute does not conclude against the form of the statute, it is a fatal omission on error; alleging whereby, and by force of such act, is insufficient. Sears v. The United States, 1 Gallis. C. C. R. 257. 52. It is not necessary to refer to the statute giving the remedy, as well as to that creating the offence and giving the penalty. Nor is it necessary, in such a declaration, to aver the uses to which the forfeiture is to be applied. Ibid. 53. A conclusion of a declaration in debt for a penalty under a statute, "against the law in such case made and provided," is not a conclusion against the form of a statute, and is bad on error. Smith v. The United States, 1 Gallis. C. C. R. 261. 54. If two penal offences are described in one count, and one penalty only sought, the declaration will be supported after verdict. Ibid. 55. In debt for the double value, under the third section of the embargo act of January 9th, 1808, ch. 112, it need not be averred in the declaration that the vessel and cargo had not been, and could not be seized for the offence. Ibid. 56. If a declaration for a statute penalty conclude against the form of the statutes, when the suit is founded on a single statute, it is good on error. Kenwick v. The United States, 1 Gallis. C. C. R. 268. 57. If the immaterial matter constitute a part of a material averment, so that the whole cannot be struck out without destroying the right of action or defence of the party, there the immaterial matter cannot be rejected as surplusage, but may be traversed in pleading, aud must be proved as laid, though the averment be more particular than it need have been. The true rule is, that whenever the whole allegation can be struck out without affecting the legal right set up by the party, it is impertinent and may be rejected as surplusage. United States v. Burnham, 1 Mason's C. C. R. 57. 58. A videlicit is sometimes used to explain what goes before it, and if the explanation be consistent with the preceding matter, it is traversable; so it is sometimes used to restrain the generality of the former words where they are not express and special; and then it is traversable. And whenever a videlicit contains matter which is material and necessary to be alleged, it is considered as a direct and positive averment, and as such traversable as if no videlicit had been inserted. Ibid. 59. In action of debt upon a recognisance, if the declaration, in setting forth the recognisance, states it to be to appear and answer a charge for beating one; and the recognisance was in fact to appear and answer for beating one, of which he died, the variance is fatal. Dillingham v. The United States, 2 Wash. C. C. R. 422. 60. A declaration upon the sixty-sixth section of the collection act of March 2d, 1799, ch. 128, alleging that the goods entered were not invoiced according to the actual cost thereof at the place of exportation, with design, &c., is bad on error: the offence created by the section consists in the making an entry on an invoice below the actual cost of the goods, with the design, &c., and it is immaterial how fraudulent the invoice may be, if the entry be made according to the actual cost. Godwin v. The United States, 2 Wash. C. C. R. 493. 61. If a declaration contain inconsistent counts, one charging the defendant singly, and the other charging a partnership transaction, the defendant cannot plead in abatement to a part, but must demur to the whole declaration.* Jordan Wilkins, 2 Wash. C. C. R. 483. V. 62. In an action upon a promise to pay in consideration of forbearance, it is not necessary in the declaration to aver that the plaintiff accepted the promise: it is sufficient to set out the promise, the condition, and the forbearance. Lonsdale v. Brown, 3 Wash. C. C. R. 404. 63. It is not a fatal defect in a declaration for an invasion of a patent-right, that it does not aver the act complained of to be "against the form of the statute;" it is merely formal and cured by verdict. Tryon v. White, Peters' C. C. R. 96. 64. If the declaration professes to set forth the specification in a patent as part of the grant, the slightest variance is fatal: it is sufficient to state in the declaration the substance of the grant. Ibid. 65. The declaration on an embargo bond demanded twenty thousand dollars, and recited the statute which authorizes the United States to demand a sum not exceeding twenty thousand dollars, and not less than one thousand dollars, which it averred the defendant owed and detained. The jury found a verdict for four thou sand dollars: on a motion to arrest the judgment the declaration was held good. United States v. Colt, Peters' C. C. R. 145. 66. A declaration in debt, claiming no precise sum to be due, is without precedent; but the demand of one sum in the declaration does not Declaration. prevent the recovery of a smaller sum, the amount claimed being diminished by extrinsic circumstances. Ibid. 67. The declaration ought always to show a title in the plaintiff, and that with sufficient certainty; and to set forth all the matters which are the essence of the action; without them the plaintiff fails to show a right in point of law to ask for a verdict. Bas et al. v. Steele, 3 Wash. C. C. R. 381. Gray et al. v. James et al., Peters' C. C. R. 476. 68. It is in general sufficient to set forth the grant of a patent in substance. Tryon v. White, Peters' C. C. R. 96. 69. Where the plaintiff's title depends on the performance of certain acts, he must always affirm the performance of those acts. Gray et al. v. James, Peters' C. C. R. 476. 70. Where the declaration described the plaintiff's improvement, in the words of the patent, it is not necessary that the description of the machine, as stated in the specification annexed to the patent, should be set forth. If required by defendant, oyer must be asked of it. Ibid. 71. An averment in the declaration that A B, by C D, made a certain bill, is sufficient. Sherman v. Comstock, 2 M'Lean's C. C. R. 19. 72. A declaration is defective if it does not aver notice, when founded on a check, &c. Ibid. 73. As a notice is necessary to give a right of action against the guarantor, the declaration must aver that it was given. Ibid. 74. An averment that notice was given to the guarantor more than seven months after the note became due, is insufficient. Ibid. 75. Where there is an excuse for not giving notice, it should be stated in the declaration. Ibid. 76. Where a note was given by Abbott & Layton, it is unnecessary in the declaration to aver a partnership. Davis v. Abbott, 2 M'Lean's C. C. R. 29. 77. The instrument shows a joint liability. Ind. 78. A declaration must contain a statement of facts, which, in law, gives the plaintiff a right to recover. Stanley v. Whipple, 2 M'Lean's C. C. R. 35. 79. This is the question to be answered on a demurrer. Ibid. 80. After verdict, defects in substance are cured, if, from the issue in the case, the facts omitted must have been proved. Ibid. 81. Where contract has been performed, recovery on general counts. Ibid. 82. A note dated at Cincinnati, and described in the declaration as dated at Cincinnati, in the state of Ohio, is admissible in evidence. Drake v. Fisher, 2 M'Lean's C. C. R. 69. 83. The contract being transitory, the words "in the state of Ohio," may be rejected as surplusage. Ibid. 84. It is sufficient to describe the note in terms, or according to its legal effect. Ibid. 85. Whatever is necessary to give a right of action to the plaintiff must be averred. Walker v. Johnson's Administrators, 2 M'Lean's C. C. R. 92. 86. Where a note has been assigned by a firm, it is unnecessary for the assignee to aver and prove the names of the firm. Thompson v. Cook, 2 M'Lean's C. C. R. 122. 87. This is the rule at common law. Ibid. 88. Where a note is payable at a particular place, the declaration need not aver that the note, when due, was presented at such place for payment. Ibid. 89. The assignee who sues in his own name, must show that his assignor might have sued also in the federal court. Rogers v. Lynn, 2 M'Lean's C. C. R. 126. 90. Where a note is given to A, B, C, D, E, F, or G, the suit may be brought in the name of either of the promisees. Spaulding v. Evans, 2 M'Lean's C. C. R. 139. 91. In such a case it is not necessary to set out the note in terms in the declaration, but according to its legal effect. Ibid. 92. On a joint note, suit must be brought against all, unless one or more of the promissors have been discharged by infancy or operation of law. Woodworth v. Shafford, 2 M'Lean's C. C. R. 168. 93. In an action of assignee against his immediate endorsers, if the declaration aver that it was endorsed by the defendants by the name of A B, it is sufficient. Kendall v. Freeman, 2 M'Lean's C. C. R. 189. 94. Where the contract shows a joint liability, it is unnecessary to aver and prove a partnership. Ibid. 95. The existence of the bank, though stated in the declaration by way of recital, is sufficient. Falconer v. Campbell, 2 M'Lean's C. C. R. 195. 96. If facts are stated in the declaration which show that defendants become a body corporate, sufficient. Ibid. 97. The fact of incorporation is an inference of law. Ibid. 98. The objection that the law was not passed by the constitutional majority, must be raised by plea. Ibid. 99. The declaration must show a perfect right. Ibid. 100. If the declaration is founded on an amendatory act, which refers to and contains a former one, it should conclude against the statute, and not statutes. Ibid. 101. A declaration which charged a receiver of public moneys with not paying moneys which came into his hands the day after his bond expired, is bad on demurrer. United Stutes v. Spencer, 2 M'Lean's C. C. R. 265. 102. In an action against the marshal, where the defendant had a right to replevy, it is too general to aver that the marshal did not make the money. Bispham v. Taylor, 2 M'Lean's C. C. R. 355. 103. The marshal is bound to make the money, if the judgment be not replevied. Ibid. 104. An averment in a declaration that the marshal took insolvent_sureties, and not freeholders, is sufficient. Ibid. 105. In a declaration on a marshal's bond, it is not necessary to aver that the penalty has not Declaration. Declaration of War. Decree.-Dedication of Land to Public Uses. been paid. Sperring v. Taylor, 2 M'Lean's C. | collaterally, cannot be inquired into. Carring C. R. 362. ton's Heirs v. Brents et al., 1 M'Lean's C. C. Ř 106. The usual averment of the breach of the 175. condition is sufficient. Ibid. 107. By the statute of Indiana, the representatives of a deceased joint obligor may be sued, as on a joint and several obligation. Curtis Bowrie, 2 M Lean's C. C. R. 374. V. 108. A declaration which alleges a promise by the deceased to pay, and also a promise by his administrators, though informal, is not bad on general demurrer. Ibid. 109. If it appear the defendants are charged in the declaration in their representative character, and not in their own right, it is sufficient. Ibid. 110. The difference between a note payable on a particular day, and on or before such day, is material, when described according to its legal effect. Kikindal v. Mitchell, 2 M'Lean's C. C. R. 402. 111. The citizenship of the party which gives jurisdiction must be specially averred. Leavitt v. Cowles, 2 M'Lean's C. C. R. 491. 112. An averment that the plaintiffs are citizens of New York, to wit, of Illinois, where the suit is brought, is a repugnant averment. Ibid. 113. A venue laid in the body of the declaration is sufficient. Dwight v. Wing, 2 M'Lean's C. C. R. 580. 114. By the English rule the venue is laid in the margin. Ibid. 115. A general averment of notice is sufficient to charge an endorser of a note. Under it facts may be proved. Ibid. DECLARATION OF WAR. 1. British property found in the United States, on land, at the commencement of hostilities with Great Britain, could not be condemned as prize without a legislative act authorizing its confiscation. Brown v. The United States, 8 Cranch, 110; 3 Cond. Rep. 56. 3. A decree in Virginia for the conveyance of land in Kentucky, cannot operate on the title. Ibid. 4. Nor does a decree for the title to land in Ohio, by a court in Kentucky, though a con veyance be executed by a commissioner, under the statute of that state, give a title. Watts et al. v. Waddle et al., 1 M Lean's C. C. R. 204. See DECREE IN CHANCERY. CHANCERY, Ante, page 337. DECREE IN THE ADMIRALTY. ADMIRALTY PRACTICE, Ante, page 102. DEDICATION OF LAND TO PUBLIC USES. 1. The equitable owners of a tract of land on the river Ohio (the legal title to which was granted to John Cleves Symmes, from whom they had purchased the land before the emanation of the patent from the United States), proceeded, in January, 1789, to lay out on part of the said tract, a town, now the city of Cincinnati. A plan was made and approved by all the equitable proprietors, and according to which the ground lying between Front street and the river was set apart as a common, for the use and benefit of the town forever, reserving only the right of a ferry; and no lots were laid out on the land thus dedicated as a common. Afterwards, the legal title to the lands became vested in the plaintiff in this ejectment, who, under the same, sought to recover the premises so dedicated to public uses. Held, that the right of the public to use the common in Cincinnati must rest on the same principles as the right to use the streets; and that the dedication made when the town was laid out, gave a valid and indefeasible title to the city of Cincinnati. City of Cincinnati v White, 6 Peters, 431. 2. Dedications of land for public purposes have frequently come under the consideration of the supreme court; and the objections which have been raised against their validity have been, the want of a grantee competent to take the title; applying to them the same rule which applies in private grants, that there must be a grantee as well as a grantor; but this is not the 2. In this country, from the structure of our government, proceedings to condemn the property of an enemy found within our territory at the declaration of war, can be sustained only on the principle that they are commenced in exe-light in which this court has considered such cution of some existing law. Ibid. 3. The declaration of war is not such a law. It does not, by its own operation, so vest the property of an enemy in the government, as to support proceedings for the seizure and condemnation of such property. It vests only a right, the assertion of which depends on the sovereign. Ibid. DECREE. 1. A decree which purports to divest the legal title from one in whom it is not vested, can have no effect on the title. Lessee of Harmer's Heirs v. Gwynne, 1 M'Lean's C. C. R. 48. 2. The regularity of a decree when examined dedications for public use. The law applies to them rules adapted to the nature and circumstances of the case; and to carry into execution the intention and object of the grantor; and secure to the public the benefit held out and expected to be derived from and enjoyed by the dedication. Ibid. 3. There is no particular form or ceremony necessary in the dedication of land to public use. All that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation. Ibid. 4. Although the dedications of land for charitable and religious purposes, which it is admitted are valid without any grantee to whom the fee could be conveyed, are the cases whica |