Declaration

In Pleading. 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; Bacon, Abr. Pleas (B); Comyns, Dig. Pleader, C, 7; Lawes, PI. 35; Steph. PL 36; Dixon v. Sturgeon, 6 S. & R. (Pa.) 28.

In real actions, it is most properly called the count; in a personal one, the declaration; Steph. PI.

36; Doctr. Plac. 83; Lawes, PI. 33. See Fitzh. 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 Bouvier, Inst. n.

2815.

In an action at law, the declaration answers to the bill in chancery, the libel (narratio) of the civilians, and the allegations of the ecclesiastical courts. It may be general or special: for example, in debt on a bond, a declaration counting on the penal part only is general; one which sets out both the bond and the condition and assigns the breach is special; Gould, PL c.

4, § 50.

The parts of a declaration are the title of the court and term; the venue, see Venue; the commencement, which contains a statement of the names of the parties and the character in which they appear, whether iq their own right, the right of another, in a political capacity, etc., the mode in which the defendant has been brought into court, and a brief recital of the form of action to be proceeded in; 1 Saund. 318, n. 3, 111; 6 Term 130; the statement of the cause of action, which varies with the facts of the case and the nature of the action to be brought, and which may be made by means of one or of several counts; 3 Wils. 1S5; Neal v. Lewis, 2 Bay (S. C.) 206, 1 Am. Dec. 640; one count may incorporate, by reference, certain general averments which are in a previous count in the same pleading; Green v. Clifford, 94 Cal. 49, 29 Pac. 331; see Count; the conclusion, which in personal and mixed yns, Dig. Pleader (C, 84); 10 Co. 116 ft, 117 a; 1 M. & S. 236; unless in scire facias and in penal actions at the suit of a common informer, but which need not repeat the capacity of the plaintiff; Martin v. Smith, 5 Binn. (Pa.) 10, 21, 6 Am. Dec. 395; the profert of letters testamentary in case of a snit by an executor or administrator; Bacon, Abr. Executor (C); DougL 5, n.; Webb v. Danforth, 1 Day (Conn.)::i>r>; and the i>l"t<jcs of prosecution, which are generally disused, and, when found, are only the fictitious persons, Julin Doe and Richard Roe. Tbe requisites or qualities of a declaration are that it must corresp 1 with the process; and a variance in this respect was formerly the subject of a plea in abate see Abatement; it must contain a statement of all the facts necessary in point of law to sustain the action, and no more; Co. Litt 303 a; Plowd. S4, 122; Pep. PI. s.

See Coffin v. Coffin, 2 Mass. 363: Oowp. 682; 6 East 122; Viner, Abr. Declaration; Barrett v. Liugle, 45 La. Ann. 935.

Tbe omission of a complaint to allege a material fact is cured where such fact is shown by tbe answer. The circumstances must be stated with certainty and truth as to parties; Bentley v. Smith, 3 Cat (X. Y.) 170; 1 M. & S. 304; Simonds v. Speed, 6 Rich. (S. C.) 390; Jackson v. Alexander, 8 Tex. 109; Totty's Ex'r v. Donald, 4 Muuf. (Va.) 430; time of occurrence, and in personal actions it must, in general, state a time when every material or traversable fact happened; Atlantic Mut. Fire Ins. Co. v. Sanders, 36 N. II. 252; Givan v. Swadley, 3 Ind. 4S4; Haven v. Shaw, 23 N. J. L. 309; Hyslop v. Jones, 3 Mc Lean, 96, Fed. Cas. No. 13,953; and when a venue is necessary, time must also be mentioned; 5 Term 020; Com. Dig. Pleader (O. 19); Barnes v. Matteson, 5 Barb. fX. Y.) 375; though the precise time is not material; U. S. v. Vigol, 2 Dall. (U. S.) 340, 1 L. Ed. 409; Che v. Lewis, 3 Johus. (N. Y.) 43; Simpson v. Talbot. 25 Ala. 409; unless it constitute a material part of tbe contract declared upon, or where the date, etc., of a writ.cn contract is averred; 2 Campb. 307; Atlantic Mut. Fire Ins. Co. v. Sanders.:',0 X. II.

252; Haven v. Shaw, 23 N. J. L. 309;

— or in ejectment, in which the demise must he stated to have been made after the title of tbe lessor of the plaintiff and his right of entry accrued; 2 East 257; Van Alen v. Rogers, 1 Johns, ('as. (X. Y.) 283, 1 Am. Dec. 113; the place, see Venue.; and, generally, as to particulars of the demand, sufficient to enable the defendant to ascertain precisely the plaintiff's claim; 2 P.. & I'. 265; 2 Saund. 74 &; Posey v. Hair, 12 Ala. ri<;7; Van Rensselaer v. Jones, 2 Barb. (N. Y.) 643; Corey v. Bath, 35 N. H. 530; Heirn v. Mc Caughan, 32 Miss. 17, 66 Am. Dec. 5S8; Fulwood v. Graham, 1 Rich (S. C.) 4!>3. terest in the existence of some fact in relation to \l Such declarations are i iginal evidence' and adj when the fact that the declaration was mi the point in question; Bartlet v. 702: Pelli treau . iX. Y.) 110; Phelps v. V !:. & Ad. 845;: Bingh. 359; 269; second, including expirei." ling, where the existence or:..

SUCh feelings Is the object of inquiry, i pressions of affection in actions for crim. con.; 1 B. & Aid. 90; Gilchrist v. B Wacts (Pa.) 355,.".I Am. Dec. 469: 6 I'. 22; Roosa v. Loan Co., 132 Mai. 439; representations by a sick person of the mature, symptoms, and effects of the malady under which be is laboring; 6 Bast 188; Gilchrist v. Bale, 8 Watts (Pa.) 355, 34 Am. B C. & 1'. 275; Bacon v. Inhabitants of Charlton, 7 Cush. (Mass. Wilkinson v. Mosoley, 30 Ala. 562; Fa I da. 17; Wadlow v. Ferryman's Adm'r, 21 Mo. 279; State v. David Vt 377, 73 Am. Dec. 312; Collins v. Waters, 54 111. 4S5; in prosecution for rape, th< larations of the woman forced; 1 565; _ Stark. 241; Laughlin v. state, is Ohio 99, 51 Am. Dec. -144; third, in cafe, including the declarations of deceased persons nearly related to the parties in question; 2 C. & K. 701; 1 De G. A- S. 40; Jewell v. Jewell, 1 How. (U. S.i 231, 11 L. Ed. 10S; Jackson v. Browner, 18 J (N. Y.) 37; Chapman v. Chapman, 2 I 347, 7 Am. Dec. 277; Waldron v. Tuttle, 4