Joralimon v. Pierpont & Cornell , 1 Ant. N.P. Cas. 59 ( 1808 )

Van Ness, J.

Where a plaintiff declares for trespasses done on a particular day, with a continuando to another day, he may give, in evidence, any number of acts of trespass within the. continuando ; but if he travels out of the continuando, he must select one act of trespass, and give evidence as to that act only.⁽¹⁾

The plaintiff selected a particular act out of the continuando, and obtained a verdict.

D. B. Ogden, for the plaintiff.

Colden, for the defendants.

(1) To avoid multiplicity of suits, a man may, in one action of trespass, recover damages for many trespasses, laying the first to be done with a contimando; provided it is a trespass, of which there could have been a continuance. 1 Lev. 210. And whether it is such a trespass or not, is a consideration of good sense. 1 Lord Raym.'240.

There are two ways of declaring with a continuando; the one with a continuando for the whole time, from the day on which the first trespass is charged, until a subsequent day mentioned in the declaration. This way of declaring is proper, in any case where the trespass may have been continued, without intermission, for a longer term than the space of one day. The other mode is with a continuando diva-sis diébus et victims, viz: on divers days and at divers times, from the day on which the first trespass is charged, until, &e. This way of declaring is proper, where there may have been a repetition of the trespass on a subsequent day, or where part of the trespass was committed on one day and part on another. 6 Bacon. 604.

Where the continuando is defective, or when it is abandoned, as it seems to have been in this case, the declaration is considered as a general declaration in trespass; and if there is but one count, the plaintiff is, consequently, driven to rest his cause on a single act of trespass. Fontleroy v. Aylmer, 1 Lord Raym. 240; Monckton v. Pashley, 2 Lord Raym. 977. The day, in trespass, being immaterial, the plaintiff has a right to offer evidence of a trespass before the day laid in the declaration. And so is, Co. Litt. 283, a. In an action of trespass, if the day, laid in the declaration, be either before or after the actual day, on which the trespass was committed, it is not material if a trespass be proved before action brought. Buller, in his Nisi Prius, observes, on the very point in this ease, as follows: “In trespass with a continuando, the plaintiff ought to confine himself to the time in the declaration; yet he may waive the continuando, find prove a trespass on any day before the action is brought.” Buller N. P. 86. So in Hume v. Oldacre, (1 Starkie, 351,) Lord Ellenborougli held, that it was competent to the plaintiff to give in evidence, one act of trespass anterior to the time laid in the record; but, that in such ease, he would be confined to one act of trespass, though he might give, in evidence, any number of acts of trespass within the time laid in the record, if he confined himself to that time.