TIMELegal Dictionary -> TIME
TIME, pleading. The avertment of time is generally necessary in pleading;
the rules are different, in different actions. 2.-1. Impersonal actions, the pleadings must allege the time; that is, the day, month and year when each traversable fact occurred; and when there is occasion to mention a continuous act, the period of its duration ought to be shown. The necessity of laying a time extends to traversable facts only; time is generally considered immaterial, and any time may be assigned to a given fact. This option, however, is subject to certain restrictions. 1st. Time should be laid under a videlicit, or the party pleading it will be required to, prove it strictly. 2d. The time laid should not be intrinsically impossible, or inconsistent with the fact to which it relates. 3d. There are some instances in which time forms a material point in the merits of the case; and, in these instances, if a traverse be taken, the time laid is of the substance of the issue, and must be strictly proved. With respect to all facts of this description; they must be truly stated, at the peril of a failure for variance; Cowp. 671: and here a videlicit will give no help. Id. 6 T. R 463; 5 Taunt. 2; 4 Serg. & Rawle, 576; 7 Serg. & Rawle, 405. Where the time needs not to be truly stated, (as is generally the case,) it is subject to a rule of the same nature with one that applies to venues in transitory matters, namely, that the plea and subsequent pleadings should follow the day alleged in the writ or declaration; and if in these cases no time at all be laid, the omission is aided after verdict or judgment by confession or default, by operation of the statute of jeofails. But where, in the plea or subsequent pleadings, the time happens to be material, it must be alleged, and there the pleader may be allowed to depart from the day in the writ and declaration. 3.-2. In real or mixed actions, there is no necessity for alleging any particular day in the declaration. 3 Bl. Com. App. No. 1, Sec. 6; Lawes' Pl. App. 212; 3 Chit. Pl. 620-635; Cro. Jac. 311; Yelv. 182 a, note; 2 Chitt. Pl. 396, n. r; Gould, Pl. c. 3, Sec. 99, 100; Steph. Pl. 314; Com. Dig. Pleader, C 19. 4.-3. In criminal pleadings, it is requisite, generally, to show both the day and the year on which the offence was committed; but the indictment will be good, if the day and year can be collected from the whole statement, though they be not expressly averred. Com. Dig. Indictm. G 2; 5 Serg. & Rawle, 315. Although it be necessary that a day certain should be laid in the indictment, the prosecutor may give evidence, of an offence committed, on any other day, previous to the finding of the indictment. 5 Serg. & Rawle, 316; Arch. Cr. Pl. 95; 1 Phil Evid. 203; 9 East, Rep. 157. This rule, however, does not authorize the laying of a day subsequent to the trial. Addis. R. 36. See generally Bouv. Inst. Index, h.t.