Andrews v. Thayer

40 Conn. 156

• Court: Supreme Court of Connecticut
• Decided: April 15, 1873
• Status: Published

Opinion

Park, J.

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, and time future. The use of the past tense by the declaration in the averment that the defendants “ did seize, take and carry away” the property described, “ and converted and disposed of the same,” denote precisely the same thing. They represent that the transactions took place in time past, and they are equally as specific as the word heretofore regarding the time when the defendants did the acts complained of. It must he conceded that there is as distinct a designation of time in this declaration without the word heretofore as with it, and the word might as well have been omitted. It follows therefore, if the allegation of time in this declaration is sufficient, that in no case whatsoever 'can the allegation he insufficient, for every declaration necessarily must allege the acts complained of as having been done in time past. We are satisfied therefore that the allegation is insufficient. 3 Chitty’s Pleading, 1248, 1250.

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.

We therefore advise the Superior Court that there is no error in the judgment complained of.

In this opinion the other judges concurred.