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2868. In debt on a statute.
2869. The breach.

2870. The statement of the cause of action in covenant.
2871-2876. The statement of the cause of action in actions ex delicto.

2872. Statement of the thing or matter affected.
2874. Statement of the plaintiff's right.
2875. Statement of the injury.

2876. Statement of the damages.
2877–2883. Of several counts in one declaration.

2878. Reason for having several counts.
2879–2881. When several counts may be joined.

2879. In assumpsit.
2880. In debt and covenant.
2881. In actions for torts.
2882. The form of the counts.

2883. The effect of several counts.
2884-2887. The conclusion of the declaration.

2885. In what case damages should be laid.
2886. Amount of damages to be claimed.
2887. The form of the conclusion.
2888. The profert and pledges.
2890. Concluding remarks.

2815. The parties being both in court, the next step to be taken is to plead. By pleading is meant the statement, in a logical and legal form, of the facts which constitute the plaintiff's cause of action, or the defendant's ground of defence; it is the formal mode of alleging that on record which would be the support or the defence of the party in evidence. In a general sense, it is what either party to a suit at law alleges for himself in a court, with respect to the subject matter of the cause, and the mode in which it is carried on, including the demand which is made by the plaintiff; but in strictness it is no more than setting forth those facts or arguments which show the justice or legal sufficiency of the plaintiff's demand, and the defendant's defence, without including the statement of the demand itself, which is contained in the declaration or count.

Formerly, these pleadings were delivered orally or in open court, but now they are drawn up in writing, and the attorneys of the opposite parties mutually deliver them to each other out of court, or file them in the proper office of the court.

The science of pleading was designed to render the facts of each party's case plain and intelligible, and to bring the matter in dispute between them to judgment. It is, as has been well observed, admirably calculated for analyzing a cause, and extracting, like the roots of an equation, the true points in dispute, and referring them with simplicity to the court and jury:

2816. The parts of pleading have been classified under two heads, the regular, or those which occur in the ordinary course of an action, and the irregular, or collateral, being those which are occasioned by mistakes in the pleadings on either side.

2817. The regular pleadings are the declaration or count, which is a narrative of the plaintiff's cause of action ;* the plea, which is an answer to the declar



Bacon, Abr. Pleas and Pleading.

*Stephen, Pl. 1. 31 Hale, Com. Law, 301, n. In this and the following chapters, the reader is to bear in mind the changes which have taken place and are still going on in the rules of pleading. The most important changes are noticed in the note at the end of chapter 8.

* In the states which have adopted the New York code the first pleading is called the complaint or petition, the second, the answer.

ation, and states the ground of the defendant's defence; it is either to the jurisdiction of the court or suspending the action, as in the case of a parol demurrer, or in abatement, or in bar to the action, or in replevin, an avowry, and cognizance; the replication, which is an answer to some matters alleged in the plea, and in case of an evasive plea, a new assignment, or in replevin, the plea in bar to the avowry and cognizance; the rejoinder, or in replevin, the replication to the plea in bar; the sur-rejoinder, which in replevin is the rejoinder; the rebutter; the sur-rebutter; and pleas puis darrein continuance, when the matter of defence arises pending the suit.

2818. The irregular or collateral parts of pleading are: the demurrer to any part of the pleadings above mentioned, demurrer to evidence given at the trial, bills of exceptions, pleas in scire facias, and pleas in error."

2819. The parties being in court, the next step taken in the cause is to ascertain by the pleadings of record what is the cause of their dispute. The natural course is for the plaintiff to state the ground of his complaint; this is done by his declaration.

A declaration, anciently called a tale, and now known by the name of narratio, or usually abbreviated narr, or count, is a specification in a methodical and legal form of the circumstances which constitute the plaintiff's cause of action. Though declaration be the general term, yet in real actions it is more properly called a count.? But this word count has still another meaning. It is derived from the French word conte, which signifies a narrative or tale, and though used in the old books as synonymous with declaration, yet this distinction must be now observed : when the plaintiff's complaint embraces only a single cause of action and he makes only one statement of it, that statement is called, indifferently, a declaration or count, though the former is the more usual term; but when the suit embraces two or more causes of action, (each of which of course requires a different statement,) or when the plaintiff makes two or more different statements of one and the same cause of action, each several statement is called a count, and all collectively a declaration.

The declaration in an action at law answers to the bill in chancery, the libel of the civilians, and the allegation of the ecclesiastical courts. It may be considered with regard to those general requisites or qualities which govern the. whole declaration, to its form, particular parts and requisites.

2820. The general requisites of a declaration are that it must correspond with the writ, that it state all the principal facts, and that it be certain and true.

2821 The first general requisite of a declaration is that it must correspond with the process, first, as to the names of the parties to the action ;8 second, with regard to the number of parties, for if a writ is issued in the name of one plaintiff and the declaration is in the names of several, it will be irregular;' third, when the plaintiff sues in one character, for example, as executor, he cannot declare generally, though if he merely styles himself executor without stating that he sues as executor, he may do so, because in this last case the demand is still the same;" fourth, as to the cause of action ; for example, if the cause of



Viner, Abr. Pleas and Pleadings, C. * 1 Chitty, Pl. 248; Bacon, Abř. Pleas, B; Comyn,

Dig. Pleader, C, 7; Stephen, Pl. 36 ; Coke, Litt. 17, a; 3 Blackstone, Comm. 293, Gould, Pl. c. 4, X 1.

? Stephen, Pl. 36.

• Fitch v. Heise, Cheves, So. C. 185. But where the process describes the defendant under a wrong name and he appears in his right one, he may be declared against by the latter. Willard v. Missani, 1 Cow. N. Y. 37; Donnelly v. Foote, 19 Wend. N. Y. 148.

* Rogers v. Jenkins, 1 Bos. & P. 383.
10 Rogers v. Jenkins, 1 Bos. & P. 383, note b.




action in the writ be debt and in the declaration be assumpsit, or vice versd, the variation will be fatal, even after verdict."

But in general, the variance between the writ and declaration can be taken advantage of only by plea in abatement or by special demurrer.!

? 2822. The second general requisite of the declaration is that it shall contain a statement of all the facts necessary in point of law to sustain the action, and no more;13 for the plaintiff can recover only secundum allegata et probata, the allegation and the proof must be the same; he can, therefore, prove no material fact which the declaration does not allege.

The declaration must show a title, or right of action, in the plaintiff at the time of bringing the suit; if it fail in this, it is insufficient to warrant a judgment in the plaintiff's favor, for no subsequent allegation will entitle him to

He must recover upon the grounds on which he places his claim in the declaration, or not at all."

If the declaration shows that the plaintiff had no cause of action when the suit was commenced, as, if he declare upon a promissory note which was not then due, he cannot recover; for the plaintiff cannot recover for any matter accruing after the commencement of the suit except interest on demands carrying interest, that being recoverable up to the time of judgment under the name of damages.

Every thing connected with the gist of the action, or that without which it cannot be supported; all averments of any material facts; all conditions prece dent, when the right of recovery depends upon them; and a request, when one is required to support the action, must be stated in the declaration.15

2823. The circumstances must be stated with certainty and truth. The certainty necessary in a declaration is to a certain intent in general, which should pervade the whole declaration, and is particularly required in setting forth the parties, the time, the place, and the subject matter.

2824. It must be stated with certainty who are the parties to the cause, and therefore a declaration by or against “A B and Company," not being a corporation, is insufficient.16






Stamps v. Graves, 4 Hawks, No. C. 102.

Sargent v. Haynes, 2 Hill, So. C. 585; Haney v. Townsend, 1 M'Cord, So. C. 206; Young v. Grey. 1 id. 211. It is held in Alabama that where such a variance is not noticed in the pleading, the court may grant a new trial, but cannot order a nonsuit or discontinuance. Palmer v. Lesne, 3 Ala. n. s. 741. 13 Coke, Litt. 303, a.

Bacon, Abr. Pleas, B, 1. 15 A declaration is good if it contains all that is necessary for the plaintiff to prove under a plea of the general issue, in order to entitle him to recover. Beardsley v. Southmayd, 2 Green, N. J. 534. All material facts are to be stated, but facts which are merely evidence are not to be stated. State v. Leonard, 6 Blackf. Ind. 163.

Where a foreign law is relied on to support an action it must be pleaded in the declaration, and so much of it as is material set out. Palfrey_v. Portland R. R., 4 All. Mass. 55; Blecht v. Harris, 4 Minn. 504; Carey v. Cincinnati R. R., 5 Iowa, 357.

16 Comyn, Dig. Pleader, C, 18. Revis v. Lamme, 3 Mo. 207; Burns v. Hall, 2 Penn. 984. There is of course no difficulty in stating the plaintiff's name exactly, and his name must be used without regard to any assumed partnership or corporation name under which he carries on business. Walthormfechtel v. Ďobyns, 32 Mo. 310. So proceedings in the name of “the estate of” are improper. Estate of Columbus v. Monti, 6 Minn. 568. In actions at law the legal party in interest must be plaintiff or defendant, without regard to equitable interests, subject of course to statutes requiring the suit to be in the name of the real party in interest. Marsh v. Astoria Lodge, 27 Ill. 421.

Where the defendants have entered into contracts under an assumed business name, it is often a matter of difficulty to ascertain their names, and the statutes by some of the states provide that a partnership or association may be sued in the name of the firm or association, the names of the members being supplied when discovered. So if the defendant's full name is not known, he may be partially described, a sufficient description being given for the purpose of identification.

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2825. In personal actions, the declaration must in general state a time when every material or traversable fact happened, and when a venue is required, time must also be mentioned." But unless time constitute a material part of the contract declared upon, as where the date of a written contract or record is averred, or, in ejectment, in which the demise must be stated to have been made after the title of the lessor of the plaintiff and his right of entry accrued, the precise time is not in general material. In these cases, therefore, the pleader may assign any time he pleases to any given fact, and prove another, for time is then not traversable. This option is, however, subject to certain restrictions.

If the pleader does not wish to be held to prove strictly the time laid in his declaration, he should lay it under a videlicet. The office of the videlicet is to show that the party does not mean to prove the precise time, or, in transitory action, the precise place; this is done by putting the words “to wit,” or “that is to say;" for example, " And the said C D, afterward, to wit, on the day of 1851,” etc.

He should not lay a time intrinsically impossible, or inconsistent with the fact to which it relates ; for a time so laid would in general be ground of demurrer; but when such a time is laid to a fact not traversable, though the statement of time be impossible or inconsistent, it will do no harm, upon the principle that utile


inutile non vitiatur. There are instances where time forms a material point in the merits of the cause; and in these cases, if a traverse be taken, the time laid is of the substance of the issue, and must be strictly proved, and its being laid under a videlicit makes no difference. In cases of usury, time is of material importance, because upon that depends whether it exists or not; thus where the declaration stated a usurious contract, made on the 21st day of December, 1774, for giving the day of payment of a certain sum to the 23d day of December, 1776, and the proof was that the contract was made the 23d day of December, 1774, giving the day of payment for two years, it was held that the verdict must be for the

2826. The third particular in which certainty in pleading is required is that of place. The consideration of this subject will be postponed till we come to treat of the venue, when discussing the several parts of a declaration.''

2827. The next general particular which must be stated with certainty is the subject matter of the suit, and it embraces all the material facts which constitute the cause of action. This comprehends, according to the nature of the case, the

, contract declared upon, and the breach of it; or the wrong complained of, and its injurious consequences; or the property sought to be recovered, or in respect to which the alleged damages and injury have been done. But the requisite certainty relates only to the manner in which these particulars ought to be stated. When the facts necessary to be stated are known, they can be easily laid with certainty, which consists merely in alleging them so distinctly and explicitly as to exclude all ambiguity. It is not easy to say what degree of certainty is requisite in setting out the subject matter. This will be more

20 fully considered in the sequel.

17 The King v. Holland, 5 Term, 620; Stephen, Pl. 311, 312.

18 Carlisle v. Trears, Cowp. 671, Gould, Pi. c. 3, 8 66; Stephen, Pl. 313. If a material allegation is laid under a videlicet, it must be proved exactly as laid. Ladue v. Ladue, 16 Vt. 189.

19 In an action under statutes against a railroad for injury to cattle, the place where the accident occurred must be stated. Quick v. Hannibal R. R., 31 Mo. 399. So in an action for causing death, it is a necessary averment that the railroad was used in the state and county where the death took place. Chicago R. R. v. Morris, 26 Ill. 400; see Indianapolis R. R. v. Moore, 16 Ind. 43. 20 1 Chitty, Pl. 260, 261 ; Stephen, Pl. 342. Vol. II.-P





2828. The several parts of a declaration are: the title of the court and term, the venue, the commencement, the statement of the cause of action, the several counts, the conclusion, and the profert and pledges.

2829. It must appear by the declaration in what court it has been filed; this is done by simply heading the declaration with the name of the court, as, “In the Supreme Court for the Eastern District of Pennsylvania.”

The pleadings, it will be remembered, were formerly ore tenus, and the title of the term with reference to the ancient proceeding is to be considered as a statement or memorandum of the time when the plaintiff comes into court and alleges his cause of complaint; and as this could only be in term time, when the defendant was in court, consequently the declaration must be entitled in term. 2

2830. The renue is the place from which the jury are to come who are to try the issue. The statement of the venue follows in the margin, after the title of the declaration.

According to the former constitution of trial by jury, the particularity of place was rendered absolutely essential in all issues which were to be decided by a jury, because the jury consisted of witnesses or of persons who were in some measure cognizant of their own knowledge of the matter in dispute. They were of course generally to be summoned from the particular place or neighborhood where the fact happened ;2 and in order to know into what county the venire facias, or writ which commanded the sheriff to summon the jurors, should be directed, and to enable the sheriff to execute the writ, it was required that the issue, and, therefore, the pleadings out of which it arose, should show particularly what that place or neighborhood was.24 This place was called the venue or visne, from vicinetum, or neighborhood, and the statement in the pleadings obtained the same name; and to allege a place was said to lay the venue. It was then the practice to summon the jurors from the immediate neighborhood where the facts to be tried arose, and, therefore, the venue was laid in the parish, town, or hamlet, as well as the county. But when the jurors were taken from the body of the county, and they were no longer witnesses, it was sufficient to lay the venue in the county.

In the subsequent pleadings, the plea, the replication, and so forth, the venue must be laid to each affirmative traversable allegation, as in the declaration, according to the principles already stated, until issue joined.

Another rule relating to the venue is that it must be laid truly. Formerly the venue was of course laid where the facts arose, and it was for this reason that written contracts bore date at a certain place. But when, in consequence of the changes in the constitution of juries, the reason ceased to operate, the courts began to distinguish between cases in which the truth of the venue was material and those in which it was not so. A difference was now perceived between local and transitory actions, the nature of which has already been explained.20

In local actions the plaintiff must lay the venue in the action truly; in a transitory one he may lay it in any county that he pleases.




21 It is not absolutely essential that the declaration should be entitled of any particular term. Evans v. Bridges, 13 Ala. 348.

22 Gould, Pl. c. 3, & 102; Stephen, Pl. 398; Archbold, Civ. Pl. 86.
23 Harg. Co. Litt. 125, a, n. (1).
24 Fabrigas v. Mustyn, Cowp. 176, 7; 2 H. Blackst. 161.
25 Gilbert, Civ. Act. 84.

Before, 2648, 2649.
27 In England at common law the cause of action arose in transitory actions upon the
plaintiff's suing out his writ, and of course within the county in which he sued it out.
This rule was adopted in this country, and the plaintiff might lay his venue and bring his
writ in any county. This caused vexation to the defendant, as he was often sued in remote
counties. The jurisdiction of the court was, in a measure, dependent on the venue. But


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