Wooster v. Parsons

1 Kirby 27

Opinions

By DrKR, Siiebjiak and PiTKiN, J J.

1. When an action is brought before any court of limited and inferior jurisdiction, the declaration ought to ayer expressly, that the cause of action arose within the jurisdiction of the court (2 Ld. Raym. 1310); and the place should be particularly alleged: Neither of which was done with sufficient certainty in the present case. The note on which, etc., is alleged to have been executed in the city aforesaid; the city of New Haven, and the city of Middletown, having been, both before mentioned, therefore, uncertain to which the reference was intended. See Coke on Littleton, 20, a. “If a lease for life is made to A. remainder in tail to B. remainder to O. informa praedicta, the remainder to C. is void for uncertainty.” 2 Ld. Raym. 886-890. Judgment arrested for a like uncertainty. This author makes a distinction between praedicta, and some other relative terms, which he supposes commonly refer to the last antecedent; but that the rule admits of many exceptions.

Footnotes

•

* If such an uncertain reference would render a grant void, which would be supported, if by any reasonable construction it could be made certain, it must a fortiori be fatal to a declaration, which is to be construed most strongly against the declarant. 3 Salk. 199; Hard. 77; Dyer, 17. If the note has been executed in the city of Middletown, the allegation ought to have been “in the city of Middletown aforesaid, within the jurisdiction of the said court.”

2. Tbe note on wbicb, etc., is dated tbe 7 th of June, 1784, and tbe session of tbe legislature at wbicb tbe law; was enacted, for incorporating tbe city of Middletown, ended tbe lltb of tbe same June, as appears of record: And, therefore, tbe cause of action arose before tbe jurisdiction of tbe city of Middletown commenced; for laws in.this state are not in force till tbe end of tbe session in wbicb they are passed, unless by special provision in tbe statute; for during tbe whole of tbe session, they are subject to alteration, or to be totally negatived and not entered on record; whereas after tbe end of tbe session, they become matters of record, and cannot be altered or repealed, but by a new act passed and recorded: Nor would it be reasonable that people should be affected by laws before they are published, wbicb is not done (except in special instances) before tbe rising of the legislature.

3. As to tbe exception in tbe defendants’ plea, that errors in law and errors in fact are joined in tbe writ, tbe plaintiffs have assigned no facts in error, upon wbicb they rely, but such as appearuf record: And an assignment of errors in fact, not properly assignable, together with sufficient errors in law, will not vitiate tbe writ.

Therefore, tbe judgment of tbe City Court was reversed.

The reason of the distinction is, that aforesaid may with propriety relate to any term, that has been before used in the same instrument or writing, however remote; but the other relative terms there mentioned, can only relate to some word in the same sentence.