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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, the declaration must consequently be entitled in term.39

The declaration is usually entitled of the day on which the process is returnable, unless it were returnable on the first day of term, and then it may be entitled of the term generally, for a general title always relates to the first day; but it can not be entitled of a subsequent term.40 If there be two defendants, and one of them can not be arrested on the first process, and he is brought into court upon another writ, returnable in a subsequent term, the declaration should be entitled of the Where alias last term:41 and where a sole defendant can not be served or arrested on process returnable in one term, and an alias returnable in the next is issued, the declaration may be entitled of the last term;42 so if one or more pluries writs are issued, the declaration may be entitled of the term when the last process was returnable.48

or pluries is issued.

Must be after cause of ac

The title must always be of a time posterior to the accruing tion accrued. of the plaintiff's cause of action; and hence where it has accrued during the term, it becomes necessary to entitle the declaration of a particular day: for if the cause of action be laid in the declaration to have arisen on a day subsequent to that of which it is entitled, the plaintiff may demur, or move in arrest of judgment, or maintain a writ of error. The plaintiff, however, will be allowed to amend on payment of costs;45 and this has been allowed even after a writ of error brought.

46

38 1 Term. Rep. 116.

39 1 Chitty's pleading, 262.
401 Caines' Rep. 71.

44 3 Johns. Rep. 42. 10 Johns. Rep. 119. 1 Saund. 40. n. 1.

45 3 Johns. Rep. 42. 10 Johns.

41 1 Wils. 78. 242. 1 Chitty's Rep. 119. 219.
Pleading, 263.

42:1'Chitty's Pleading, 263.
431 Dunlap. Pract. 241.

46 7 Term Rep. 470. 1 East. Rep. 135. n. a.

The cause of action may be stated to have accrued on the first day of term, although the declaration is entitled generally;47 and where the cause of action appears in evidence to have arisen after the first day of term, and the title of the declaration is general, the plaintiff may obviate the objection by showing that the writ was actually issued afterwards.48

+

and transi

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 to be tried.49 The general rule is, that where action Actions local is local, the venue must be laid and the cause tried in the ry. county in which the injury was really committed, or the defendant may demur when the objection appears on the record, or the plaintiff may be nonsuited at the trial;50 but that where the action is transitory, the venue may be laid and the cause tried in any county; subject, however, to be changed by the court, as we shall have occasion to notice hereafter.51 rule, however, seems somewhat modified as to actions brought in the supreme court by a provision in the revised statutes, to which we shall have occasion to refer more particularly hereafter.52

This

Commencement of the declaration.] The declaration in actions by bill, commences with stating that the plaintiff in the suit complains of the defendant therein, "in custody," &c.53

47 2 Saund. 1. n. 1.

53 When the defendant was ac

48 2 Saund. 1. n. 1. 10 Johns. tually in custody, a former statute Rep. 219.

491 Chitty's Pleading 267. 50 Cowp. 410.

51 1 Chitty's Pleading 270. 271. 1 Bac. Abr. 56. See post Vol. 2. As to the distinction between local and transitory actions see ante, p. 85.

52 R. St. P. 3. Ch. 7. T. 4. s. 1. Vol. 2. p. 409. See post Vol. 2.

required that it should be alleged
in the custody of what sheriff or
officer the prisoner actually was,
see 1 R. L. 353. s. 11; but this
provision is not contained in the
revised act. R. St. P. 3. Ch. 6. T.
1. s. 23. Vol. 2. p. 350.

parties.

executors,

&c.

If it state that A and company, or that the plaintiff complains of A and company, it is bad on general demurrer; for this is an acknowledgment that there are other persons not named, who ought to sue or be sued.54 But in an action by an incorporated company, whether the act of incorporation be a public or a private law, it is unnecessary to set forth the names of the individuals composing the company.55

In an action against joint debtors,56 if all have not been arrested, the commencement of the declaration should specify those who have been brought into court, and that the others Assignees, have been returned by the sheriff not found. If the action be brought by or against particular persons, as assignees, executors, &c., the special character in which they sue or are sued, should be set forth in the commencement; though still if it appear from other parts of the declaration, it will be sufficient.57 An infant must be alleged to sue by prochein amy, or guardian by the court here specially admitted.5

Cause of action.

Proceedings by original.

After the description of the parties, there is a brief recital of the cause of action, as in assumpsit, "of a plea of trespass on the case;" or in debt, "of a plea that he render to the plaintiff so much money which he owes to and unjustly detains from him." It seems, however, that in actions by bill, this recital is superfluous, and may be omitted.59

Where the proceedings are by original, the declaration commences with stating that the defendant was summoned or attached, according to the nature of the action, to answer the plaintiff. It was formerly usual for the declaration by original to repeat the whole of the original writ.61 But this practice being productive of great and unnecessary prolixity, a rule

543 Caines' Rep. 170. 1 Bac.

Abr. 50.

55 1 John. Cas. 132.

56 2 Johns. Cas. 339.

57 1 Saund. 111. 112. n. 2. Com. Dig. Pleader, 2. D. 2.

58 2 Saund. 117. f.

59 11 East. Rep. 65.

co Com. Dig. Pleader, C. 11. 1 Saund. 318. n. 3.

61 Com. Dig. Pleader, C. 12.

was adopted, about the same time, in both the king's bench and common pleas, "that declarations in actions of trespass upon the case, or personal actions upon any and general statute, &c. other than debt, repeat not the original writ, but only the nature of the action;" as that the defendant was attached to answer the plaintiff in a plea of trespass upon the case, or in a plea of trespass and contempt, against the form of the statute. And, in trespass vi et armis, commenced by original, it has been deemed sufficient, on a general demurrer, to state in the declaration that the defendant was attached to answer the plaintiff in a plea of trespass, without setting forth the circumstances.63

cause of ac

After the commencement, follows the statement of the cause Statement of of action. The consideration of this involves an examination tion. of the subject of pleading, and is, for the reasons we have mentioned, entirely omitted.

prosecute.

Conclusion.] It was anciently necessary to find pledges to Pledges to prosecute, and add their names to the declaration by bill:64 and it is still usual to add the fictitious names of John Doe and Richard Roe as pledges of prosecution. But this is unnecessary, and the want of pledges cannot be objected to even on special demurrer.65

torney.

The declaration should be subscribed with the name of the Name of atplaintiff's attorney; if the names of two attornies appear on the writ, it is sufficient if the declaration and other proceedings are subscribed with the name of one of them.66 After the attorney's name, it was formerly the practice to insert a memorandum of the warrant of attorney; but warrants of attorney, Memoranexcept in cases where specially required, are now abolished, rant.

dum of war

62 R. M. 1654. s. 12. K. B. R. M. 1654. s. 16. C. P. See Appendix, Vol. 2.

63 Carth. 108. et vide 1 Saund.

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64 1 Tidd. Pract. 454.

65 4 John. Rep. 190.
66 2 Caines' Rep. 109.

67

and the entry of such warrant in any declaration or other proceeding rendered unnecessary by statute. It is, however, required that the plaintiff, in his declaration, and the defendant, in his plea, shall state the name of the attorney, or attornies, by whom they respectively appear:68 this is usually done in the commencement.

Amendments to declaration.] The declaration may, within a certain time, be amended of course; amendments are frequently allowed on special motion, in the discretion of the court; and by pleading to the declaration and going to trial, or by confessing the action, or suffering judgment to be taken by default, many defects are cured either by common law, or by statute.69 A declaration varying from the writ,70 or defecor demurrer. tive in point of form, as wanting time, place, or other circumstances, may be aided by the plea or a general demurrer."1 But a plea does not aid a declaration defective in substance;72 and in no case is a defective title, or the want of a title or cause of action, cured by verdict."

Defects

aided by plea

Amendments on applica

73

On special application to the court, many amendments are tion to court. allowed in furtherance of justice, as well after as before verdict. The plaintiff is frequently permitted to amend, after a plea in abatement;74 but he will not be permitted so to amend, as to add the name of another defendant against whom a separate suit has been brought for the same demand.75 So the declaration may be amended to conform to the original writ;76 or

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