No. 2828. Book 4, tit. 8, chap. 4, sec. 2, § 1. No. 2829. 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. (a) This will be more fully considered in the sequel. SECTION 2.-OF THE FORM AND PARTS OF A DECLARATION. 2828. The several parts of a declaration are, 1, the title of the court and term; 2, the venue; 3, the commencement; 4, the statement of the cause of action; 5, the several counts; 6, the conclusion; 7, the profert and pledges. § 1. Of the title of the court and the term. 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 proceedings, 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. VOL. III. (a) 1 Chit. Pl. 260, 261; Steph. Pl. 342. No. 2830. Book 4, tit. 8, chap. 4, sec. 2, § 2. No. 2830. § 2. Of the venue. 2830. The venue is the place from which the jury are to come, who are to try the issue. (a) 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 ;(b) 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. (c) 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 práctice 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, (a) Gould on Pl. c. 3, § 102; Steph. on Pl. 398; Arch. Civ. Pl. 86. (b) Harg. Co. Litt. 125, a, n. (1). (c) Fabrigas v. Mustyn, Cowp. 176, 7; 2 H. Bl. 161. No. 2831. Book 4, tit. 8, chap. 4, sec. 2, § 3. No. 2831. 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. (a) 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.(b) 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. § 3. Of the commencement of the declaration. 2831. The commencement of the declaration is that part which follows the venue in the margin, and precedes the 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 are sued in another right, or in a political capacity, for example, as executors, assignees, and the like, the character or right in which they sue must be stated; 2dly, of the mode in which the defendant was brought into court, as, "CD was attached or summoned," as the case may be; 3dly, a brief recital of the form of action to be proceeded in. The following is the formula in assumpsit in such cases: "CD was summoned [or attached, when the defendant has been holden to bail,] to answer A B, of a plea of trespass on the case upon promises," etc.(c) Of course the form must vary with the different forms of actions. (a) Gilb. Hist. C. P. 84. (c) Steph. Pl. 47. No. 2832. Book 4, tit. 8, chap. 4, sec. 2, §4, art. 1. No. 2835. § 4. Of the statement of the cause of action. 2832. Certainty in the statement of the cause of action is of the utmost importance; but this statement necessarily varies, according to the circumstances of each particular case, and the form of action. will be briefly and separately considered. These Art. 1.-Of the statement of the cause of action in assumpsit. 2833. The statement of the cause of action in assumpsit is either special or general. 1. Of special counts in assumpsit. 2834. The rules to be observed in the structure of special counts, may be reduced to six, those which relate, 1, to the inducement; 2, to the consideration of the contract; 3, to the contract itself; 4, to the requisite averments; 5, to the breach; and, 6, to the damages. 1° Of the inducement. 2835. Inducement is the statement of matter, which is introductory to the principal subject of the declaration, and which is necessary to explain or elucidate it; such matter as is not introductory nor requisite to elucidate the substance or gist of the action, nor is collaterally applicable to it, is not inducement but surplusage. The inducement is in the nature of a preamble, and useful in making intelligible the statement of the facts in the declaration; for example, on a contract to pay money upon a consideration of forbearance, the declaration begins by stating the debt forborne, and the proceedings that were stayed.(a) The allegation in an inducement, when material, must (a) 1 Chit. Pl. 293; Steph. Pl. 257; Gould, Pl. c. 3, § 9; Lawes, Pl. 66, 67; Bac. Ab. Pleas, etc. I 2; 14 Vin. Ab. 405; 20 Vin. Ab. 345. No. 2836. Book 4, tit. 8, chap. 4, sec. 2, § 4, art. 1. No. 2837. be proved; when immaterial, they may be rejected as surplusage. 2° Of the consideration. 2836. It is generally necessary to state upon what consideration the contract upon which the action is brought is founded, unless it be on a contract which is presumed by the law to be founded on a valuable consideration, as upon a bill of exchange or a promissory note; but in other simple contracts, the consideration must be stated, whatever may be the form of action. The consideration, as stated, must always correspond with the facts of the case, and be sufficient, in law, to support the promise as laid, and be coëxtensive with it. (a) 3° Of the statement of the contract. 2837. Next to the statement of the consideration, the contract itself is usually alleged, and this must be done by setting forth in some part of the declaration, either in the words in which it was made, or according to its legal effect, and if there be a variance, it will be fatal;(b) it must be stated or described as it operates or takes effect in law, although such statement or description should vary, literally, or in form, from the matter of fact to be shown in evidence. Where the contract is founded upon a legal liability, and implied, it is sufficient to state such liability, without alleging formally that the defendant promised, as in assumpsit on a bill of exchange. (c) It is, however, more correct in all cases, to state that the defendant undertook, super se assumpsit, or words to that effect. (a) Jones v. Ashburnham, 4 East, 464. See ante, as to the nature of the consideration, n. 611. (6) King v. Pippet, 1 T. R. 240; Andrews v. Williams, 11 Conn. 326; Dorr v. Fenno, 12 Pick. 521; Churchill v. Merchants' Bank, 19 Pick. 532; Lent r. Padelford, 10 Mass. 230. (c) Elsee v. Gatward, 5 T. R. 145. |