The term "advisedly," is equivalent to knowingly. 1 B. & P. 180.

The averment wrongfully intending to injure, is equivalent to maliciously. 1 East, 563.

The term "agreement," imports mutual promises. 2 N. R. 62.

The words "sold and delivered," imply a contract, since there cannot be a sale, unless two parties agree. 2 T. R. 30.

The alleging a seisin in fee, virtually includes an occupation by the party seised; to allege in addition, that the party is in the occupation of the land, is superfluous. 4 M. & S. 387.

The replication to a plea, claiming turbary in right of an ancient messuage, averred, that divers ancient messuages besides the defendant's, &c. Held, that this was a sufficient averment that the defendant's messuage was an ancient one. 5 T. R. 412.

A claim, that the lord is seised in fee of mines underneath the copyholds, together with the liberty of boring for, &c., imports a right to exercise the same during the continuance of the copyholder's estate. 10 East, 189.

An averment, that from time immemorial, until the division of a tenement into moieties, the lord had been accustomed to take such an heriot, and since the division, had been accustomed to take such another, imports that the division was made before time of memory. 9 East, 184.

Under a plea in avoidance of a contract given for the price of goods, that they were sold by the plaintiff to the defendant, to be by him applied to such an illegal purpose; it must be taken, that they were furnished for the purpose of transgressing the law. 1 B. & P. 551.

An averment that goods to be delivered to A. were to be paid for on delivery, sufficiently expresses, after verdict, at least, that payment was to be made by A. 3 Taunt. 423.

If the memorial of an annuity, state that the consideration was paid to both grantors, when in point of fact, it was to be appropriated by one alone; a party seeking to avoid the annuity for such defect in the memorial, must state that it was to be so appropriated; merely averring that it was paid not to both, but to one only, is not sufficient, since payment to one is primâ facie payment on account of, and therefore to both. 4 T. R. 585. 2 H. B.

280.

If the memorial of an annuity, states the payment of the consideration money to have been made by the grantee, when in point of fact, it was made by his agent, it is defective. And though a plea to an action on the annuity bond, simply denying that the money was paid by the grantor, is not sufficient to raise the objection to the memorial, (since the import of such plea is, that neither in law nor in fact, was payment made by the grantor. 4 East, 85.) Yet a plea, that whereas the memorial affirms that the grantor paid the money; now payment was made by his agent; is sufficient. 3 M. & S. 82.

An averment in a plea, justifying a commitment for disturbing judicial proceedings, that the plaintiff made a great disturbance and obstructed the defendants, &c., sufficiently shows that the disturbance was the manner of obstruction. 1 Taunt. 146.

Falsehood may exist without fraud. An averment, therefore, or proof that an assertion was false, is no affirmation that it was fraudulent. 3 T. R. 60.

An averment in pleading, that A. and B. have not done an act, means that both together have not performed it; it does not exclude the supposition, that A. by himself, or B. by himself has done the act. 4 M. & S. 33.

An averment, that the plaintiff retained the defendant, does not import that it was for hire or reward, unless the defendant is a public officer or innkeeper. 5 T. R. 143.

The averment, that money has been expended in repairing premises, does not ex vi termini import that the repairs were necessary. 1 T. R. 454.

Bond

Bond for the performance of an award "so as it be made in writing under the hands of the arbitrators," by such a day. The declaration avers, that the arbitrators did in due manner, and within the time limited, duly make their award in writing. Held, on error after judgment for plaintiff, on plea of judgment recovered, insufficient, without alleging that it was under their hands. 2 Mars. 304. 6 Taunt. 645.

An averment, that "A., and all those whose estate he has from time immemorial were accustomed, and during all the time aforesaid, ought to have common," is not equivalent to claiming it at all times of the year. 2 B. & P. 359.

Under a plea, stating that the corporation of C. was a prescriptive corporation, and then setting forth a charter by which the citizens and inhabitants of C. were incorporated, not stating that they were then a corporate body, the continuance of the prescriptive corporation is not to be intended. Therefore, a replication, that at the time of granting the charter they were not a corporation, is bad. 1 T. R. 590.

The question in a criminal case, turned upon a note, which was averred to be a note for 201.; since this might mean pounds weight: held, that it should have been declared on as meaning 201. in money. Anon. mentioned by Chambre, J. 1 Mars. 214.

In action for maliciously holding to bail in an inferior court, for 30s., it is not necessary to set forth for what sum the court can hold to bail; for by 12 Geo. 2. no court can hold to bail for less than 40s. Smith v. Cattel, P. 8 Geo. 3. 2 Wils. 376.

(C 25.) And the words shall have a reasonable intendment. And words shall have a reasonable intendment and construction. Vide Action upon the Case upon Assumpsit, (A 5.)

And therefore in assize, if a man complains that the king seised of such a park granted officium parci sui, without saying (prædict.), yet it is good; for it shall be intended the park before mentioned, prædict. being mentioned before and after. 8 Co. 57.

If the plaintiff alleges a demise to A. virtute cujus he entered, it shall be intended that he entered immediately. R. Lut. 108.

If a cap. utlagat. or other judicial writ be pleaded, as issued such a day, and it is not said to have issued in term time, it is good; for it shall be intended, when no cause to the contrary appears. R. Lut. 333.

If it be pleaded that A. was seised, that he died seised, without saying who; it shall be intended that A. died seised, it being said before that he was seised. R. Lut. 1172.

If an usurious agreement be alleged between A. and B., and that A. the lender pro dando diem solution. to A. haberet so much; it shall be intended that it was pro dando B. diem solutionis A. 1 Sal. 325.

If the declaration says quod def. prosecut. fuit et adhuc prosequit. suit; it shall be intended, at the time when the action was commenced. R. 3 Mod. 103. 4 Mod. 152.

In case on promissory note, set out to be made 2d November, to pay on the 31st December next; next shall be intended next after the date of the note, not next after the action brought. Carbonel v. Davis, M. 7 Geo. Str. 394.

If a declaration in waste be quod A. feoffavit B. to the use of C. and his heris, it is sufficient, without saying quod feoffavit B. and his heirs. R. Mo. 871.

So, if an action be several in its nature, such precise certainty is not necessary; as, in an action on the stat. 2 & 3 Ed. 6. as rector of the

E 4

churches

churches of D. and S., for not setting out his tithes on 400 acres of land in D. and S.; it is sufficient, without saying how much land in D. and how much in S.; for it is in the nature of trespass. R. 2 Lev. 1.

Unless where expressions have a technical and definite signification, they are to be construed in that sense in which, from the context, the reason of the thing, they appear to have been used. 5 East, 244. 1 Smith, 437.

Expressions which for a long time, and which may be proved from precedents, have been used in pleading in an indefinite sense, though in strictness they may admit of a definite one, yet shall be construed in the former. Thus, it has been the constant practice on indictments for perjury, and likewise in those for obtaining money under false pretences, to aver, not merely that the defendant "falsely," &c., but to go farther, and assert by specific averment, that "whereas in truth," &c. The inference from this is, that all the facts following the word "falsely" are not meant to be charged as false, for usually there is no necessity they should; if they were, where is the use of the other specific averment; and that it is left to the specific formal averment to determine what the prosecutor means to charge as false. Hence, falsely is a word of uncertain, unspecific, and therefore insufficient averment in such cases. 2 M. & S. 379.

Where an averment admits of two intendments, that shall be preferred which will support the pleading. 6 T. R. 134.

The court will make any intendment against a mere captious objection. 1 T. R. 117.

In pleading, where, after stating that a fact happened on such a day, it is averred, whereupon it was done so and so; the word "whereupon" refers to the time last stated, so as to be a sufficient averment that the latter fact happened on that day. Hence, where the record of an outlawry, after stating that the capias was returned on such a day, proceeds; whereupon the exigent was awarded, it is a sufficient averment that the exigent issued on that day. 6 T. R. 573.

The averment, "the king's seal of Great Britain," means the great seal. 4 T. R. 521. 1 Taunt. 71.

The averment," his majesty's court of the bench (7 Taunt. 271.) at Westminster," means the court of common pleas; for supposing that the words "court of the bench" are equivocal, the addition, "at Westminster," designates by its locality, the court of common pleas: had the court of K. B. been intended, it would have been described as "wheresoever." 3 M. & S. 166.

In describing an action by original, as having been "then lately commenced," and depending in the K. B.; the word " commenced" may be referred to the court of chancery. 14 East, 539.

The phrase," the mayor and burgesses in common council assembled," does not necessarily mean a meeting of the whole corporation in common hall assembled, but may be taken after verdict at least, as descriptive of a select part of the corporate body. 4 T. R. 425.

(C 26.) And general words are sufficient, where the certainty lies within the defendant's notice.

And general words are sufficient, where the certainty lies within the defendant's notice.

Or, where the pleader does not know the certainty, or is not privy to it. An indictment for the murder of a person unknown, where the person murdered is unknown, is good. P. C. Plowd. 85.

So is an indictment for stealing the goods of a person unknown. Ibid. So, in an action, upon 32 Hen. 8., for letting a farm, of which the party had not been in possession, &c. for a year; it was held a sufficient breach that the defendant let the premises to farm for a term of years, without

saying what term, because the plaintiff was not privy to the lease. R. Partridge v. Strange, Plowd. 87.

So, if the words ascertain the lands which are in demand, it is sufficient to plead a conveyance of them inter al. Lut. 1007.

Where circumstances be peculiarly within the knowledge of one's adversary, a summary statement is sufficient. 8 East, 80.

In pleading, where one party throws a charge upon his adversary, he may plead it in general terms, since he cannot be supposed cognizant of the particular nature of it. Hence, in an action for not repairing a private way, which the defendant is bound to repair as owner of an estate, the declaration may state that the defendant was bound by reason of his possession. 3 T. R. 766.

(C 27.) Where they are ascertained by other circumstances. So, general words are sufficient, where they are ascertained by other circumstances: as in trespass, quare cistam fregit et diversa vestimenta in cista prædict. existen. cepit is good, without saying what vestments. R. Al. 9.

Quare domum fregit et separales claves pro aperiend. ostia domus prædict. cepit. R. Sal. 643.

Quare clausum fregit et spinas suas ad valent. so much succidit. R. 2 Cro. 435.

So debt for 20 par. caligar. without saying of wool, silk, &c. is sufficient; for when a thing is converted to another species, a declaration by the name of that species is good. R. Cro. El. 837.

Or, for so many par. calceorum. Cro. El. 837.

Or, so many loaves panis, without saying of what grain. Cro. El.

837.

If a man prescribes to inclose lands lying together in a common field, if he says that he inclosed, this imports that they did lie together. R. 2 Mod. 104.

(C 28.) And surplusage does not hurt. Vide post, (E 12.).

And surplusage shall not hurt; and therefore if a man in a declaration makes an imperfect mention of a thing, which need not be mentioned, it is not prejudicial: as in a warrantia charte if the plaintiff says, that he requested the defendant to warrant the land to him, or give him a plea in bar, when the vouchee might plead in abatement as well as in bar, yet it is sufficient; for the request to warrant was sufficient, and the request to give a plea was surplusage, and need not have been mentioned. Hob. 23.

That which in pleading may be rejected as surplusage, will not vitiate; and that is surplusage whose statement, whether in a general or a circumstantial way, is quite unnecessary to the point in question. 4 M. & S. 470. If he mentions a condition subsequent, and does not allege a certain performance, it shall not hurt; for the whole was surplusage. Pl. Com. 30. a. 32. b.

If a trespass temp. Eliz. be alleged to be contra pacem nup. reginæ et regis nunc, it is not bad, for regis nunc shall be surplusage. R. 2 Cro. 3 Bul. 82.

377.

If by statute, the action is given to the informer only, and the declaration says the action accrued to the king, the poor of the parish, and the informer, it is only surplusage. French v. Wiltshire, M. 11 G. 2. Andr.

67.

If the plaintiff declares quod cum ipsi idem def. &c. for ipsi is surplusage. 2 Mod. Ca. 377.

If in an action upon a contract, a breach be assigned, and then a consequence be alleged as resulting from the defendant's omission, it may be rejected as surplusage, since the breach, and therefore the cause of action, is complete without it. 1 T. R. 60.

So, if by the omission of any words, though not repugnant to the precedent words, that which was insensible may be made sensible, they shall be rejected as surplusage. Dub. 1 Sal. 325.

So, if by the words after a viz. or scilicet, a thing be alleged, impossible, or repugnant to the plaintiff's title, the words shall be rejected as surplusage: as in ejectment, if the entry or ouster be alleged postea, viz. such a day, which is a day before the demise. (Vide Sal. 325.) So in trespass.

So in debt for rent, if a devise of the reversion to the plaintiff be alleged, and that postea, viz. such a day, the devisor died, which was a day before the lease. R. Hard. 4.

A material allegation, which is sensible, and consistent in the place where it occurs, and which is not inconsistent with any antecedent matter, cannot be rejected merely because it is inconsistent with a subsequent material averment. 5 East, 244. 1 Smith, 437.

A material allegation, though laid under a scilicet, cannot be rejected for the sake of a subsequent material allegation, which is inconsistent with it. 5 East, 244. 1 Smith, 437.

(C 29.) Except where it defeats the action.

Yet, if a man, by the allegation of a thing not necessary, shows that he had no cause of action, this, though surplusage, shall hurt: as, in assize, if the plaintiff makes a title, which he need not, and the title is not good, the whole shall abate. Pl. Com. 84. b. 202. b.

So, if a man misrecites a statute in a material place, when it need not have been recited, it is fatal. Pl. Com. 84. b. Vide Action upon Stat. (I).

So, in an action against a disturber, where possession is a sufficient title for the plaintiff, yet if the plaintiff shows a title, and this appears insufficient, the declaration is bad. R. after verdict. M. 9 W. 3. inter Dorne and Cashford, 1 Sal. 363. 365. (Vide 1 Ld. Ray. 266. Comyns's Reports, 44.)

So, in debt for a sum awarded, if the plaintiff shows a bad award. Vide Arbitrament, (I 2.)

So, in partition, if the plaintiff shows that he and the defendant hold both in fee, where the defendant was seized in tail, if this be shown by verdict, the writ shall abate, though it was not necessary to show the defendant's title. R. Cro. El. 760.

(C 30.) So less certainty is wanting for a collateral matter.

So, precise certainty is not necessary for a thing collateral to the action; as, in action upon the case for putting in his close carrion, which died of the murrain, per quod diversa averia died; it is sufficient, without saying what or how many beasts; for the action is not for the beasts or the value of them. R. Al. 22.

If the plaintiff alleges quod quædam pars domus fuit in decasu, and in consideration that the plaintiff would repair, the defendant assumpsit,

&c.