FORM. The model of an instrument or legal proceeding, containing the substance and the principal terms, to be used in ac cordance with the laws.
The legal order or method of legal pro ceedings or construction of legal instru ments.
Form is usually put in contradistinction to sub stance. For example, by the operation of the stat ute of 27 'Eliz. c. 5, a. 1, all merely formal defects in pleading, except in dilatory pleas, are aided on general demurrer. The difference between matter of form and matter of substance, in general, under this statute, as laid down by Lord Hobart, C. J., is that "that without which the right doth suffi ciently appear to the court is form;" but that any defect "by reason wbereof the right appears not" is a defect in substance ; Hob. 233. A distinction somewhat more definite is that if the matter plead ed be in itself insufficient, without reference to the manner of pleading it, the defect is substantial ; but that if the fault is in the manner of alleging it, the defect is formal; Dougl. 683.
For example, the omission of a consideration in a declaration in assumpsit, or of the performance of a condition precedent, when such condition exists, of a conversion of property of the plaintiff, in trover, of knowledge in the defendant, in an action for mis chief done by his dog, of malice, in an action for malicious prosecution, and the like, are all defects in substance. On the other hand, duplicity, a nega
tive pregnant, argumentative pleading, a special plea, amounting to the general issue, omission of a day, when time is immaterial, of a place, in transi tory actions, and the like, are only faults in form; Bacon, Abr. Pleas, etc. (N 5, 6) ; Comyns, Dig. Pleader (Q 7) ; 10 Co. 95 a; 2 Stra. 694; Gould, P1. c. 9, § 18; 1 Bla. Com. 142.
At the same time that fastidious objections against trifling errors of form, arising from mere clerical mistakes, are not encouraged or sanctioned by the courts, it has been justly observed that "infinite mischief has been produced by the facility of the courts in overlooking matters of form ; it encour ages carelessness, and places ignorance too much upon a footing with knowledge amongst those who practise the drawing of pleadings;" 1 B. & P. 59; Comm. v. Emery, 2 Binn. (Pa.) 434.