of John Southworth and John McGraw, defendants in this suit, by declaration and not by writ of a plea of trespass on the case, for that whereas, heretofore to wit, on the 20th day of May, in the year 1840, Almerin Bailey, and Elizabeth his wife, and William E. Bailey of the town of Dryden, in the said county, executed and delivered to Harvey A. Rice, of the said town, a mortgage on a certain lot of land in said town of Dryden, described as follows, to wit: [Here insert description of premises,] containing one hundred and seventeen acres of land, more or less, subject to the conditions, exceptions and reservations contained in the original patent from the State of New-York, for said lot number sixty-six, excepting and reserving, also, all the pine timber on the above described premises-which mortgage was given to secure the payment of five hundred dollars, with

'that its origin is to be traced to the impracticability of even the most acute and sedulous jurist defining the nature of every civil wrong which one member of the community can experience from another;' and that when a case arose, not provided for, by the then forms of action, the plaintiff was allowed to state such case to the court, and that the court permitted such plaintiff to have an action upon his own case; and it is an interesting study to the student to trace the history of this action and mark its progress over so wide a field as it now occupies. And the author of Petersdorf's Abridgement of the English Common Law, in a note, has well defined the use of this action in the following words, 'hence, when neither law nor practice has expressly and in terms, defined the kind of remedy to be instituted for any injury, actions are daily brought on the case itself, that is only a legal and recognized form of statement of the injurious circumstances constituting or occasioning such claim to redress or compensation.' And it is said, Com. Dig., title, action upon the case, letter "A" that in all cases where a man has a temporal loss or damage by the wrong of another, he may have an action on the case to be repaired in damages.' There is no doubt but the general principles which govern this action are applicable to the case made by the plaintiff in the court below, and that upon the facts appearing in the case he was entitled to maintain his action."

the interest, according to the condition of a bond accompanying the same, executed by the said Almerin Bailey and William E. Bailey, and which mortgage contained the usual power authorizing the mortgagee, his heirs, executors, admisistrators or assigns, to sell the said lot of land, in case of default in payment of the said sum or any. part thereof. And whereas, afterwards, to wit: on the 10th day of August, in the year 1842, at the town of Dryden, aforesaid,1 the said mortgage, with the bond accompanying the same, was duly assigned by the said Harvey A. Rice to the said plaintiff, whereby the said plaintiff, then and there became the sole owner of the said mortgage and bond. And whereas, afterwards and before the commencement of this suit, default was made in the payment of the principal and interest secured to be paid by the said mortgage, and the said plaintiff instituted proceedings to foreclose the said mortgage, in the Court of Chancery of the State of New-York, before the Vice-Chancellor of the sixth circuit, and such proceedings were therein had, that, afterwards, to wit, on the 25th day of August, in the year 1844, a decree in favor of the said plaintiff, for the sale of the said lot of land, was obtained in the said Court of Chancery, which decree was entered, as of the 13th day of May, in the year 1843, whereby, among other things, the said lot of

1 The declaration was required to state a time and place to every material traversable fact, although the omission to do so could only be reached by special demurrer. (1 Chit. Pl., 258-260.) This is no. longer necessary, and a demurrer will not lie for such an omission. A statement of time and place is required only when necessary to render the complaint definite and certain, and if not made in such cases, the remedy would be by motion to correct the pleading. (See Plead., pp. 274, 287, 353.)

2 This is not the allegation of a fact, but of a mere legal conclusion, and is unnecessary either in a common law declaration, or a pleading under the Code.

land was directed to be sold to pay the sum of six hundred and four dollars and thirty cents, with interest, from the 13th day of May, in the year 1843, that being the amount at that time, due and unpaid on the said mortgage and bond, besides the costs of said proceedings to foreclose, and of the sale of the said lot of land under said decree, and the said plaintiff avers that the said sum of six hundred and four dollars and thirty cents, was, on the day and year last aforesaid, then and there justly due to him and unpaid on the said mortgage and bond, and that the cost of said proceeding to foreclose amounted to a large sum of money, to wit, the sum of two hundred and fiftyone dollars and forty-two cents, and that the said lot of land was an inadequate security for the payment of the said sum so due, with interest and costs aforesaid.

And whereas, afterwards to wit, on the 4th day of September, in the year 1844, the said plaintiff caused the said lot of land to be advertised for sale under the said decree so obtained as aforesaid, to satisfy the amount so due on said mortgage and bond, on the 17th day of October, then next ensuing. And the said plaintiff avers that Almerin Bailey and William E. Bailey, the mortgagors in the said mortgage, were then and still are insolvent, and then and there had and owned no other estate or property than the said lot of land, out of which the said plaintiff could obtain payment or satisfaction of the said sum so due to him, or any part thereof but the said defendants well knowing the premises above mentioned, but intending to injure and aggrieve the plaintiff, and to prevent him from having payment and satisfaction of the amount due upon said mortgage, and the interest and the costs of foreclosure and sale, and by a sale of the said lot of land, and to lessen the value of the said lot of land, and to render it of less value than the amount charged thereon, did after the obtaining of the

said decree, and after the said lot of land was advertised for sale as aforesaid, and before the sale thereof, to wit, on on the 10th day of September, in the year 1844, wrongfully and fraudulently1 take down and remove the rail fences on the said lot of land, and did take and carry away and convert to their own use a large number of rails and stakes, which had been laid up into fences on the said lot of land, to wit, five thousand rails and three thousand stakes, and did then and there wrongfully and fraudulently cut down and remove a large quantity of timber and trees, other than pine timber, then and there growing and being on the said lot of land, to wit, five hundred chestnut trees, five hundred oak trees, five hundred maple trees, five hundred hickory trees, and five hundred other trees not being pine timber, the said rails, stakes and trees being a part and parcel of the said mortgaged premises, the said defendants well knowing that the said plaintiff had obtained the said decree, and that the said lot of land was advertised for sale under the said decree, and that the said lot of land was an inadequate security for the moneys so due, together with interest and costs as aforesaid, By reason whereof the plaintiff has been deprived of obtaining satisfaction and payment of the amount so due and unpaid to him on his said mortgage and bond, and the said land was sold for a less sum than it would otherwise have been sold for, to wit, less by the sum of six hundred dollars, and the said plaintiff has failed in obtaining payment and satisfaction of a large part of the sum due on his said mortgage and bond, to wit, the sum of six hundred dollars. By reason whereof the said plaintiff has

'It is not necessary to allege that the act is either wrongful or fraudulent. The taking and removal, under the circumstancs previously and subsequently stated in the declaration, constitute the cause of action.

sustained damage to six hundred dollars, and therefore he brings suit, &c.2

(No. 3.)

Form of a declaration in case, in an action brought by executors for injuries done to the premises of the testator, in grading a street which caused a part of the premises to fall in. The parts italicised are such as may be less formally stated or omitted under the Code.3

KINGS COUNTY, ss.-Elizabeth H. Radcliff, James Boorman and Peter De Witt, executrix and executors of the last will and testament of Peter W. Radcliff, deceased, plaintiffs in this suit, by A. H. Dana, their attorney, complain of the Mayor and Common Council of the city of Brooklyn, who were duly summoned to answer the said plain

1 This is the ad damnum clause of the declaration. Its place is now supplied by the demand for relief, namely in cases like the above judgment for a certain sum specifying it.

2 A second count or cause of action is set forth in the above declaration, substantially the same, varying from it mainly by omitting the allegation that the plaintiffs advertised the premises for sale after decree, but evidently intended to cover the same cause of action. This was allowable under the old system. The plaintiff's declaration might contain various counts, all intended to cover the same cause of action, so that if his proof on the trial failed to sustain one, he might rely on another. This is no longer allowable. The plaintiff can set forth but a single statement of fact to a single cause of action. (Plead., 351, 352.)

3 This case is reported under the title of Radcliff v. Mayor, &c., of Brooklyn. (4 Com., 195.) The Court of Appeals held that the action could not be sustained. The ground of defence will be found set forth in the special pleas which are given post No. 8.