DECLARATION

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DECLARATION

DECLARATION, pleading. A declaration is a specification, in a methodical and logical form, of the circumstances which constitute the plaintiff's cause of action. 1 Chit. Pl. 248; Co. Litt. 17, a, 303, a; Bac. Abr. Pleas, B; Com. Dig. Pleader, C 7; Lawes on Pl. 35; Steph Pl. 36; 6 Serg. & Rawle, 28. In real actions, it is most properly called the count; in a personal one, the declaration. Steph. Pl. 36 Doct. Pl. 83; Lawes, Plead. 33; see P. N. B. 16, a, 60, d. The latter, however, is now the general term; being that commonly used when referring to real and personal actions without distinction. 3 Bouv. Inst. n. 2815. 2. 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. 3. It may be considered with reference, 1st. To those general requisites or qualities which govern the whole declaration; and 2d. To its form, particular parts, and requisites. 4.-1. The general requisites or qualities of a declaration are first, that it correspond with the process. But, according to the present practice of the courts, oyer of the writ cannot be craved; and a variance between the writ and declaration cannot be pleaded in abatement. 1 Saund. 318; a. 5. Secondly. The second general requisite of a declaration is, that it contain a statement of all the facts necessary in point of law, to sustain the action, and no more. Co. Litt. 303, a; Plowd. 84, 122. See 2 Mass. 863; Cowp. 682; 6 East, R. 422 5 T. R. 623; Vin. Ab. Declarations. 6. Thirdly. These 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, 1st. The parties; it must be stated with certainty who are the parties to the suit, and therefore a declaration by or against "C D and Company," not being a corporation, is insufficient. See Com. Dig. Pleader, C I 8 1 Camp. R. 446 I T. R. 508; 3 Caines, R. 170. 2d. The time; in personal actions the declaration must, in general, state a time when every material or traversable fact happened; and when a venue is necessary, time must also, be mentioned. 5 T. R. 620; Com. Dig. Plead. C 19; Plowd. 24; 14 East, R. 390.; The precise time, however, is not material; 2 Dall. 346; 3 Johns. R. 43; 13 Johns. R. 253; unless it constitutes a material part of the contract declared upon, or where the date, &c., of a written contract or record, is averred; 4 T. R. 590 10 Mod. 313 2 Camp. R. 307, 8, n.; 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. 2 East, R. 257; 1 Johns. Cas. 283. 3d. The Place. See Venue. 4th. Other circumstances necessary to maintain the action. 7.-2. The parts and particular requisites of a declaration are, first, the title of the court and term. See 1 Chit. Pl. 261, et seq. 8. Secondly. The venue. Immediately after the title of the declaration follows the statement in the margin of the venue, or county in which the facts are alleged to have occurred, and in which the cause is tried. See Venue. 9. Thirdly. The commencement. What is termed the commencement of the declaration follows the venue in the margin, and precedes the more circumstantial statement of the cause of action. It contains a statement, 1st. Of the names of the parties to the suit, and if they sue or be sued in another right, or in a political capacity, (as executors, assignees, qui lam, &c.) of the character or right in respect of which they are parties to the suit. 2d. Of the mode in which the defendant has been brought into court; and, 3d. A brief recital of the form of action to be proceeded in. 1 Saund. 318, Id. 111, 112; 6 T. R. 130. 10. Fourthly. The statement of the cause (if action, in which all the requisites of certainty before mentioned must be observed, necessarily varies, according to the circumstances of each particular case, and the form of action, whether in assumpsit, debt, covenant, detinue, case, trover, replevin or trespass. 11. Fifthly. The several counts. A declaration may consist of as many counts as the case requires, and the jury may assess entire or distinct damages on. all the counts; 3 Wils. R. 185; 2 Bay, R. 206; and it is usual, particularly in actions of assumpsit, debt on simple contract, and actions on the case, to set forth the plaintiff's cause of action in various shapes in different counts, so that if the plaintiff fail in proof of one count, he may succeed in another. 3 Bl. Com. 295. 12. Sixthly. The conclusion. In personal and mixed actions the declaration should conclude to the damage of the plaintiff; Com. Dig. Pleader, C 84; 10 Co. 116, b. 117, a.; unless in scire facias and in penal actions at the suit of a common informer. 13. Seventhly. The profert and pledges. In an action at the suit of an executor or administrator, immediately after the conclusion to the damages, &c., and before the pledges, a profert of the letters testamentary or letters of administration should be made. Bac. Abr. Executor, C; Dougl. 6, in notes. At the end of the declaration, it is usual to add the plaintiff is common pledges to prosecute, John Doe and Richard Roe. 14. A declaration may be general or special; for example, in debt or bond, a declaration counting on the penal part only, is general; when it sets out both the penalty and the condition, and assigns the breach, it is special. Gould on Pl. c. 4, Sec. 50. See, generally, Bouv. Inst. Index, h.t. 1 Chit. Pl. 248 to 402; Lawes, Pl. Index) h.t.; Arch. Civ. Pl. index, h.t.; Steph. Pl. h.t.; Grab. Pr. h.t.; Com. Dig. Pleader, h.t.; Dane's Ab. h.t.; United States Dig. Pleadings ii.

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