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§ 3, 258 (3d Am. ed. bY Tyler, Washington, D. C. 1892); Ward v. Bell, 2 DoWl. 76 (1833) (The Judge in the Trial Court compared different counts to safety valves); Newby v. Mason, 1 Dowl. & Ryland 508 (1822). See, also, Keigwin, Precedents in Pleading, Case xvii, 425—428 (Washington, 1910); Jackson v. Baker, 24 App.D.C. 100 (1904). “The Multiplication of Counts has long been consid. ered one of the chief abuses in the System of plead­ing. . . To allow the plaintiff or defendant to state his case in ten or fifteen different ways is a custom the reasonableness of which is not readily perceived.” The principal reason is the Strictness of the Rules as to Varlanee. Report of the Common Law Commissioners. On the “Licensed Duplicity of

Plural counts” to meet (1) the uncertainties of evi­dence in support of the plaintiff’s case; (2) to meet doubt as to the Law; (3) to obtain for the plaintiff the greatest possible latitude of proof. Note in Keig­win, Precedents of PleadIng, 424, 426ff. A Count not varying substantially from a preceding Count Is objectionable for redundancy. Sowter v. seekonk Lace Ce., 34 Ri. 304, 83 A. 437 (1912).

though it may be certain that there was at

least one default; and if, under these cir­cumstances, the plaintiff should set forth one of the defaults, and the defendant should take issue upon it, he might defeat the action by proving payment on the day alleged, though he would have been unable to prove the other payment. To meet this difficulty, the pleader might resort to two Counts. The first of these would set forth the penal bond, alleging a default of payment on the 11th of June; the second would again set forth the same bond, describing it as “a certain other bond,” etc., and would allege a default on the 10th of July. The effect of this would be that the plaintiff, at the Trial, might rely on either default, as he might then find con­venient. In this instance, the Several Counts are each founded on a different State of Facts, that is, a different default in payment, though in support of the same demand.

But it more frequently happens that it is the same State of Facts differently repre­sented which forms the subject of different Counts. Thus, where a man has ordered goods of another, and an action is brought against him for the price, the circumstances may be conceived to be such as to raise a doubt whether the transaction ought to be described as one of goods sold and delivered, or of work and labor done, and, in this case, there would be two Counts, setting forth the claim both ways, in order to secure a Ver­dict, at all events, upon one of them. The best illustration of the practice of thus re­stating a Cause of Action in the same Decla­ration is found in the use of the Common Counts in General Assumpsit, which appear in the chapter on the Action of Indebitatus As­sumpsit. They eii~brace not only what are called the “Money Counts,” or those for mon­ey transactions, but also include Counts for almost any State of Facts upon which a debt may be founded. The Money Counts are those generally for money lent to the defend­ant, had and received by him for the pla’mtiff,



Ch, 4

or paid out for him by the latter, for interest due, and for an account “stated” or agreed upon. The others may be, among other things, for work and labor, goods sold and de­livered, use and occupation, etc. And first of all, preceding the Common Counts, there may be a Special Count declaring on an express contract. This is done because it often hap­pens that, when the Special Counts are found incapable of proof at the Trial, the Cause of Action will resolve itself into one of these general pecuniary forms of demand, and thus the plaintiff may obtain a Verdict on one of these Money Counts, though he fail as to all the rest.

Again, the same State of Facts may be

varied by omitting in one Count some matter stated in another. In such a ease the More Special Count is used, lest the omission of this matter should render the other Insuffi­cient in Point of Law. The More General Count is adopted, because, if good in Point of Law, it will relieve the plaintiff from the necessity of proving such omitted matter in Point of Fact. If the defendant Demurs to the latter Count as insufficient, and takes Issue in Fact on the former, the plaintiff has the chance of proving the matter alleged, and also the chance of succeeding on the Demurrer.

It is to be observed that, whether the

subjects of Several Counts be really distinct or identical, they must always purport to be founded on distinct Causes of Action, and not to refer to the same matter; and this is effected by the insertion of such words as “other,” “the further sum”, etc. This is evidently rendered necessary by The Rule against Duplicity, which, though evaded, as to The Declaration, by The use of Several Counts, in the manner here described, is not to be directly v1olated.~

St. Stephen, A Treatise on the Principles of Pleading in Civil Actions, c. IX, Of the Principal Rules of Pleading, § 3, p. 201 (3d Am. ed. by Tyler. Washing­ton, D. 0. 1802); Hart v. Longfleld, 7 Mod. 148, 87 Eng.Rep. 1156 (1702); West v. Troles, 1 Salk. 213, 91

27. The Declaration must correspelul with the Writ or Process. The formal statement of the Cause of Action must correspond with all the material statements in the Process by which the action is commenced, or the deviation will constitute a Variance.
IT was a rule of great antiquity that the Declaration must Conform to the Original Writ, and, though the Original Writ is no longer in use, the Rule is to be regarded as still in force, in its effect, in such of the United States as follow the Methods of Plead­ing at Common Law, as to the Process now generally in use for commencing an Action

in the place of the Original Writ. A con­vincing proof of its force at the present day is that even in Code Pleading, though some writers claim that the principles applicable are derived entirely from the Practice Act itself, and not from the Common Law, the agreement between the Summons and Com­plaint in most of the particulars hereafter mentioned is essential, and for the same rea­son. Under the Rule, it may be taken as still requisite that the Declaration must cor­respond with the Process In the following respects: (1) As to the Names of Parties to the Action,63 though when the Process de­scribes the defendant by a wrong name, and he appears in his right one, he may be de­clared against by the latter;” (2) As to the number of parties, for it would not be allow­able to Commence an Action in the name of one, and Frame the Declaration—an inter­mediate step—in the names of several;”

(3) As to the character in which the parties sue or are sued. If the action is brought by the plaintiff in a representative capacity,
Engitep. 100 (1697); Hltcheocli v. Munger, 15 N.E. 97 (1844).
93. Willard v. Missanl, I Cow. (NY) 37 (1823); Fitch V. Heise. cheves (8.0.) 185 (1840).

Sm. Willard V. Missant, I Cow. (N.Y.) 37 (1823); Don­nelly v. Foote, 19 Wend. (N.Y.) 148 (1838).

IS. Rogers v. Jenkins, I Ros. & Pu1. 383, 126 Eng.ileP~ 966 (1799).

Sec. 27



as an executor, the plaintiff cannot declare in his own right, though, if he styles himself executor simply, without showing that he sues as such, he may declare in his own right, the demand being still the same.66 (4) As to the Cause of Action, both as to its form and the extent of the demand.67 (5) As to time, it being essential that no material fact be stated in the Declaration as happening after the date or teste of the Process,68 which is generally considered as the time of the Commencement of the Action.69

06. Rogers v. Jenkins, I lbs. & Pul, 383, and n. (la, 126 Engitep. 966 (1799); Lashlie v. Wily, 8 Hrnnpli. (nun.) 659 (1848).
67. Illinois: Weld v. Hubbard, 11 Ill. 573 (1850); New
Jersey: Coyle v. coyle, 20 NJ.L. 132 (1856); North

Carolina: Stamps v. Graves, 11 NC. 102 (1825);

nhoae Island: Slater v. Fehlberg, 24 11.1. 574, 54 A.

383 (1908).
06. Semis v. Faxon, 4 Mass. 263 (1808).

19. Alabama: Oox v. Cooper, 3 Ala. 256 (1841); Ken­tucky: Thompson v. Bell, 6 T.B.Mon. (Ky,) 559

The consequences of a Variance between the Declaration and Process were generally serious at Common Law, though the strict­ness formerly prevailing has been consider­ably relaxed. The fault may be generally taken advantage of by Plea in Abatement,7~ except where modified rules have been adopt­ed in different states, though a Variance a~ to the Cause of Action is ground for setting aside the Proceedings as irregular.
(1828); Massachusetts: Bunker v. Shed, 8 Metcalf (Mass.) 150 (1844); New York: Carpenter v. Butter­field, 3 Jobns.Cas. (N.Y.) 145 (1802); Pennsylvania~ caidwell v. Heitshu, 9 Watts & S. (Pa.) 51 (1845);

Vermont: Day V. Lamb, 7 Vt. 426 (1885).

And it is only prima facie evidence of the fact am! not conclusive. Burdick v. Green, 18 Johns. (N.Y.) 14 (1820).
14. illinois: Prince ‘v. Lamb, I Breese (III.) 878 (1830);
South Carolina: Bradley v. Jenkins, 3 Brev. (S.C.)

42 (1812). And see, contra, Stamps v, Graves, 11 N.

C. 102 (1825).






28. Laying the Venue.

29. Local and Transitory Actions.

30. Local Facts—Venue in Pleadings Subequent to the Declaration.

31. Consequences of Mistake or Omission.

82. Time.

88. When Time Must be Truly Stated,

34. When Time Need Not be Truly Stated.

35. Time of Continuing Acts.

36. Description of Property.

87. Names of Persons.

38. Parties to the Action.

39. Showing Title.

40. Title in the Party or in One Whose Authority He Pleads.

41. Alleging Derivation of Title—Estates in Fee Simple.

42. Alleging Derivation of Title—Particular Estates.

48. Title by Inheritance.

44. Title by Alienation or Conveyance.

45. Manner of Pleading Conveyance.

46. The Written Conveyance and the Statute of Frauds.

47. Where a Party Alleges Title in His Adversary.

48. What is a Sufficient Allegation of Liability.

49. Proof of Title as Alleged.

50. Estoppel of Adverse Party.

51. Showing as to Authority.

52. Prof ert of Deeds.

53. Writings Pleaded According to Legal Effect.

54. Damages—General and Special.

28. In all Pleadings, some certain pJace must be alleged for every affirmative Traversable Fact, which place is called the ‘Venue” of the action. The Venue in all actions is to be laid truly, or at the option of the pleader, according as the same are respectively:

(I) Local, or

(II) Transitory

WITH each stage in the development of

the Jury, the manner of laying Venue under­went a change. During the first or earliest

stage, the general rule was that each affirma­tive Traversable Allegation in the Original Writ, arid also in the Declaration, which was required to Conform to the Writ in this as in other particulars, was to be laid with a Venue or place comprising, not only the county, but the specific place in the county in which the fact occurred. The rule also applied to actions Commenced by Bill in­stead of by Original Writ. And in both eases the Plea, Replication and Subsequent Pleadings were required to lay Venue to


Sec. 29
each affirmative Traversable Allegation.1 This laying of the Venue in connection with each Traversable Allegation in the Body of the Declaration or other pleading is designat­ed as the Fact Venue.
In the second stage of the Jury’s growth, and after the statute of 1705,2 the Jury was summoned from the county in which the ac­tion was triable, whether or not the fact in issue occurred there. The statute of 16

& 17 Car. II, enacted in 1664,~ provided that

a Judgment after Verdict should not be stayed or reversed on account of the Venue, if the cause were tried by a Jury of the county where the action was laid. According to Stephen, the practice of laying a Venue in the Body of the Pleadings became “an un­meaning form,4 the Venue in the margin hav­ing been long found sufficient for all practi­cal purposes.” ~ And by the Hilary Rules of 1834,° it was provided that “The name of a county shall in all cases be stated in the mar­gin of a Declaration; and shall be taken to be the Venue intended by the plaintiff, and no Venue shall be stated in the Body of the Declaration, or in any Subsequent Pleading. Provided, that in cases where local descrip­tion is now required, such local description shall be given.”

A Venue should be laid in the Declaration, but failure to lay any Venue in a Transitory Action is regarded merely as a formal defect, which can only be taken advantage of by
1. Duyckinek v. Clinton Mut. Ins. Co., 23 N.J.L. 279 (1852); Mehrlaof Bros. Brick Mfg. Co. v. Delaware, L. & W. It. Co., 51 NIL. 56, 16 Ati. 12 (1888). See, also, Platz v. Meltean Twp., 178 Pa. 601, 36 At!. 139 (1897); Read v. Walker, 52 IlL 333 (1869).
2. Statute 4 Anne, c. 16, § 6, 11 Statutes at Large 156 (1705).
3. Chapter 8.
4. flderton v. Ilderton, 2 FBI, 145, 126 Eng.Rep. 476 (1793).
~ Stephen, A Treatise on the Principles of Pleading, C. F, Of the Principal Rules of Pleading, § IV, 259 (Williston edition, Cambridge, 1895).

6. Reg.Gen.llhl.Term, 4 Wm. xv, reg. S.

Special Demurrer. In Massachusetts it was held that a Declaration in a Transitory Ac­tion, without a Venue, or with a wrong one, is bad in form if Specially Demurred to for this cause; but that objection cannot be taken in any other way.7 In most states it is not considered necessary, as formerly, in a Transitory Action, to lay every Traversable Fact affirmatively alleged with a Venue. It is sufficient if the name of the county ap­pear in the margin, though it may not be alleged at all in the Body of the Declaration.3

29. A Local Action is one where the trans­action upon which it is founded could only occur in a particular place, and may be either for:

(I) The recovery of land; or

(II) The establishment or maintenance of a right arising out of land, or the recovery of damages for its injury.

Transitory Actions are those founded on transactions which might have taken place anywhere.
THE law distinguishes between transac­tions which might occur at any place and
7. Briggs v. Presideat, etc. of Nantucket Bank, 5

Mass. 94 (1809). And, see, to the same effect, Pullea

V. Chase! 4 Ark. 210; Mehrhof Bros. Brick Mfg. Co.

V. Delaware, L. & W. B. Co., 51 N.J,L. 56, 16 AtI. 12

(1888); Blackstoae Nat. Bank v. Lane, 80 Me. 165,

13 AU. 683 (1888).
8. Slate ‘cc Post, 9 Johns. (N.Y.) 81 (1812). And see

County Com’rs of Hartford County V. Wise, 71 Md.

43, 18 AU. 31 (1889); Capp v. Oilman, 2 Blackf.

(md.) 45 (1827); Puflen v. Chase, 4 Ark. 210 (1841);

Benton v. Brown, 1 Mo. 393 (1823); Thorwarth V.

Blanchard, 86 Vt. 296, 85 Atl. 6 (1912).

9. In general, on Local and Transitory Actions, see:
Articles: Kuhn, Local and Transitory Actions in PH~

Vate International Law, 66 U. of Pa.L.Rev. 301

(1918); Starke, The Venue of Actions of Trespass to

Land, 27 W.Va.L.Q. 301 (1920—21); Wheaton, Na­ture of Actions—Local and Transitory, 18 Il1.L.Eev.

456 (1922).
Statutes: 28 U.S.C.A. 1392 (1068); Section 082a of the New York Code of Civil Procedure, adopted as

536 of the New York Real Property Law, construed




Ch. 5

those which must occur at some certain place. Causes of action which do not nec­essarily arise in any specific place are Tran­sitory, and may be brought in any juris­diction in which the plaintiff succeeds in serving the defendant personally.’° Causes of action which necessarily involve a certain locality, such, for example, as an Action of Ejectment, are Local, and must be tried in the place where property involved is located. The distinction between Actions which are Local and hence must be brought in the jurisdiction where the property concerned is located, and Actions which are Transitory, and hence may be brought in any place where jurisdiction of the defendant may be obtain­ed, is one which exerts an influence upon the laying of the Venue.

Local Actions, therefore, embrace all those brought for the recovery of the seisin or possession of lands and tenements, which are purely local subjects, as an Action of Eject­ment. An Action for Injury to real es­tate as by negligence,11 nuisance,’2 or tres­pass,13 are examples of Local Actions. An
in Jacobus v. Colgate, 217 N.Y. 235, lfl N.E. 837

AnnotatIons: 26 L.R.A. (N.S.) 933 (1910); 44 L.R.A. (N.S.) 267 (1913).
Decisions: Livingston v. Jefferson, 1 Broek. 203, Fed.

Cas.No.8411 (1811); Ackerson v. The Erie By, Co.,

31 KJ.L. 309 (1865); Jacobus v. Colgate, 217 N.Y.

235, 111 N.E. 837 (1916). Cf. Ellenwood v. Marietta

Chair Co., 158 U.S. 105, 15 tCt. 771, 39 L.Ed. 013

10. Hill v. Nelson, 70 N.J.L. 376, 57 AtI. 411 (1904), in which the leading cases on this point are discussed.
11. Brisbane v. Penn. It. B. Co., 205 N.Y. 431, 95 N. B. 752, 44 L,R.A. (N.S.) 279 (1912).
12. Warren v. Webb, 1 Taunt. 379, 127 Eng.Rep. 880 (1808); Van Ommen V. Hageman, 100 N.J.L. 224, 126 Atl. 468 (1924).
II. Livingston v. Jefferson, I Brock. 203, Fed.Cas.No.

8411 (1811); McKenna v. Fisk, I How. (U.S.) 241, 11

L.Ed. 117 (1843); Dodge v. Colby, 108 N.Y. 445

(1888); Brereton v. Canadian Pac. By. Co., 29 Ont.

~7 (1898); Montesano Lumber Co. v. Portland Iron

Works, 78 Ore. 53, 152 rae. 244 (1915).

action for obstructing a highway, is Local. In some states, however, Trespass may be maintained for injury to land located in a foreign jurisdiction.14 Thus, in New York, an express statutory enactment ‘6 authorized Actions for Trespass to realty lying outside the State, and this Statute was subsequently construed in Jacobus v. Colgate.’6
In the famous case of Mostyn v. Fabrigas,17 Lord Mansfield, by way of dictum, took the view that Actions in Personam, including such actions as Trespass to the land, should be declared Transitory and not Local. The same view had been expressed by the same Judge in two earlier cases at Nisi Prius, but they were subsequently repudiated in Shelling v. Farmer’5 and Doulson v. Matth­ews.’9

However this may be, where the Action is admittedly Local, the place where the land is situated must be truly stated. If it be misstated, there will be a fatal Variance between the Pleading and the Proof, place being here material as a matter of properly describing the subject matter of the action. The reason of the rule as to all Local Actions is that, as no Court has Jurisdiction over

14. Little v. C. S. P. M. & 0. By. Co., 65 Minn, 48, 67 N.w. 846 (1896); Holmes v. Barclay, 4 La.Ann. 63 (1849).
15. Section 982a of the New York Code of Civil Pro­cedure, adopted as Section 536 of the New York Real Property Law, provides: “An action may ho maintained in the Courts of this State to recover damages for injuries to real estate situate without the state, or for Breach of Contracts or of Cove’ nants relating thereto, whenever such an action could be maintained in relation to personal property without the state. The action must be tried in the county In which the parties or some one thereof re~ sides, or If no party resides within the state, In any county.”
16. 217 N.Y. 235, 111 N.E. 837 (1916). Cf. Ellenwood V. Marietta Chair Co., 158 U.S. 105, 15 S.Ct. 771, 39 L.Ed. 913 (1895).
17. Mostyn v. Fabrlgas, Cowp.Rcp. 181, 98 Eng.Bep.

1021 (1774).

~. 1 Str. 646, 03 Eng.Rep. 756 (1725).
1O. 4 T.R. 503, 100 Eng.Eep. 1143 (1792).


local matters arising within a foreign sover­eignty, no action will lie in any one sovereign state for the recovery of lands or tenements situated in another.2°

20. Mostyn v. Fabrigns, Cowp. 161, 176, 98 Eng.Rep.

1021 (1774); Doulson v. Matthews, 4 TB. 503, 100

Eng.Rep. 1143 (1792); Thomson v. Lockc, 60 Tex.

383, 1 SW. 112 (1886); St. Louis A. & P. fly. Co. v.

Whit~ey, 77 Tex. 126, 13 SW. 853 (1890).
And, as to the difference between Local and Transi­tory Actions, sce Mason v. Warner, 31 Mo, 508

(1862); Hcn~vood v. Cheeseman, S Serg. & B. (Pa.)

503 (1817).
The following Actions are Local, and within this rule:

Ejeetment, Doulson v. Matthews, 4 T.R. 503, 100 Eng.Rep. 1143 (1792); Trespass or Trespass on the Case for injuries to real property, as for Trespaso to Realty, Nuisance, Waste, etc., Warren v. Webb, I Taunt. 379, 127 Eng.Rep. 880 (1808); Jefferies v. Duncombe, 11 East 226, 103 Eng.Bcp. 991 (1800); Graves v. MclCeon, 2 Denio (N.Y.) 639 (1846); Bris­bane v. Pennsylvania B. Co., 205 N.Y. 431, 08 N.E. 752, 44 L.R.A. (N.S.) 279, Ann.Cas.1913E, 593 (1916). Cf. Comment: Itight to Sue in a Foreign Jurisdic­tion for an Injury to Real Estate, 5 Minn.Ljtev. 63 (1920). And see, also, Roach v. Damron, 2 Humph. (Teun.) 425 (1841); Putnam v. Bond, 102 Mass. 370 (1869); Sumner v. Finegan, 15 Mass. 284 (1818); Arizona Commercial Mining Co. v. Iron Cap Cop­per Co., 236 Mass. 185, 128 N.E. 4 (1920); un­less in these cases there was some contract be­tween the parties on which the action is ground­ed. Warren v. Webb, 1 Taunt, 379, 127 Eng.Rep. 880 (1808).

In an Action of Debt on a Judgment of a Court of Record, the Venue must be laid in the county whore the Record is located. I Chitty, on Pleading, c. IV, Of the Declaration, 281 (Philadelphia 1819); Barnes v. Kenyon, 2 Johns.Cas. (N.Y.) 381 (1801); Smith v, Clark, 1 Ark. 63 (1838); but this is not the general rule under the Codes.

At Common Law Replevin was purely a Local Action, as Non Cepit denied the taking at the place men­tioned in the Declaration, to wit, on the land of the tenant, but the Action has been made Transitory by Statute In some states.

Trespass to Realty is Local, not Transitory, anti can­not be brought in another state than where the land is situated, unless authorized by Statute. Taylor v. Sommers Bros. Match Co., 204 Pac. 472 (Idaho, 1922).
See, also, Note: Right to Sue in a Foreign Jurisdic­tion for an Injury to Real Estate, 5 Minn.L,Rev. 03 (1920); Itecent Cases: Actions—Local or Transi­tory—Courts—JurisdIctIon—Negligence—Right to Sue In a Foreign Jurisdiction for Injury to Real Estate, 6 Minn.L.Rev. 516 (1922); Nature of Ac-

Generally speaking, all actions which are called “personal,” whether they sound in Tort,2’ or Contract,22 are Transitory in their nature, since the facts from which they arise may be supposed to have happened any­where, and, in contemplation of Law’, have no natural locality. Place is, therefore, not material, and the Venue may be laid in any county, even though the cause of action arose within a Foreign Jurisdiction.23

In some cases the Venue must be laid truly; in others this is not necessary, but
tions—tocal and Transitory, 16 1l1.L.Rev. 456 (1921); Huntington v. Altrill, 146 U.S. 657, 13 8Cr. 224, 36 LEd. 1123 (1892).
21. Mostyn v. Fabrigas, Cowp. 161, 05 Eng.Rep. 102]

(1774); Jefferies v. Duncomhc, 11 East 220, 103 Lug.

Rep. 991 (1800); Smith v. Butler, 1 Daly (N.Y.) SOS

(1865); Gardner v. Thomas, 14 Johns. (N.Y.) 134, 7

AnLDec. 445 (1817) ; Shaver v. White, C Munf. (Va.)

112, 8 Am.Dee. 730 (1818); Watts v. Thomas, 2 liihh

(Ky.) 458 (1811); Smith v. Bull, 17 Wend. (N.Y.)

323 (1837).

22. As in Account, Assumpsit and Covenant 1,etwcen the original parties to the deed, and generally in Debt and Detinuc. In actions upon lenses for non­payment of rent, etc., whether the Action is Transi­tory or not depends upon whether it is founded up­on privity of contract. If based upon privity of estate, as where the action is brought by the lessor or his personal representatives, or by the grantee of the reversion against the assignee of the lessee, it is Local. See White v. Sanborn, 6 N.H. 220 (1833); Clarkson v. Gifford, 1 Caincs (N.Y.) 5 (1803). Cf. New York Corporation v. Dawson, 2 Johns.Cas, 335 (1801).
Trespass or injury to land is a Local Action. Hill V. Nelson, 70 N.J.L. 376, 57 Atl. 411 (1004); British South Africa Co. v. Companbia de Mocambiqne, [1893] AC, 602, 633; 1 Chitty, on Pleading, e. IV’, Of the Declaration 279~ (Springfield, 1876); Gould, A Treatise on the Principles of Pleading, c. I, The Major Requisites of Plending, 271 (6th ed. by Will, Albany, 1000); 3 Street, Foundations of Legal Lia­bility, c. VIlI, Natural History of Remedial Law 9O~ 94 (Northport, 1000); Note: Right to Sue in a For­eign Jurisdiction for Injury to Real Estate, 5 Minn. L.Rev. 63 (1920).
23. See Hale v. Lawrence, 21 N.J.L. 714, 47 Am,Dee.

190 (1848); McDuffee v. Portland & R. H. B., 52 N.

H. 430, 13 Am.Rcp, 72 (1873); Read v. Walker, 52 Ill.

333 (1809); Brady v. Brady, 161 N.C. 324, 77 sE.

235, 4-4 L.R.A, (N.S.) 279 (1912); Crook v. Pitcher,

61 Md. 510 (1884).

Sec. 29




Ch. 5


it may be laid at the option of the pleader, This depends, as we shall now see, on the question whether the action is Local or Transitory. And in this connection two situ­ations will be considered:
(1) Where the facts are of a Transitory character, that is, not associated with any partkcular locality, the facts may be stated as having occurred at one place and proved as occurring at any other. In other words the Venue does not have to be stated truly, as was the case where the jurors were Se­lected because of their own peculiar knowl­edge of the facts in issue. In practice, how­cver, it was always the better part of wisdom to Jay the Venue truly. But a Variance in respect to a Transitory Fact, unless it in­volved a matter of description,24 would not prove fatal. Thus, if A alleged that B as­saulted him at a certain place, he might support his Allegation by Proof that the assault took place at any other place. And the defendant, in his Plea, was ordinarily required to follow the Venue of the Declara­tion and could not specify another place for his Defense, even if that other place accorded with the truth.25 But when the Defense depended for its validity upon its locality, and the place where it arose was not in ac­cord with the place laid in the Declaration, the defendant might state the actual place, where he could justify by way of a plea of special traverse.26
(2) Where the cause of action was of a local nature, that is, where it concerned land, an action could not be supported in a juris­diction which did not include the subject matter—the land. Thus, for example, if A brought an Action of Ejectment in county X
24. Robert v. Rarnage, 6 Mod. 228, 87 Eng.Rep. 979 (1704).
25. Wright v. Ramseot, 1 Saund. 84, 85 Eng.Rep. 93 (1667); Brldgwater v. Bythway, 3 Lev. 113, 83 Eng. Itep. 604 (1083).
SI. Peacock v. Peacock, Cro,ElIz. 705, 79 Eng.Rep. 040 (1599). -

against B for land described as located in county F, the action would fail; in other words the defect would be available on De­murrer to the Declaration. And if the land were untruly described as being in county X, when the fact appeared in Proof at the Trial that the land was located in another county, the action would be dismissed. And the same was true where the action was brought for a trespass upon land which was in fact located in a foreign state.2~

Laying the Venue Under a Vidilicet

Since place was not material in Transitory Actions, and the Venue could be laid in any county, even though the cause of action arose within a foreign jurisdiction, a remedy was thus afforded, not only in one state or county, for an injury to personal property within the limits of another, or without the limits of the United States, but also for the

Breach of any Contract, wherever executed, anti even where relating to land.2~ When the Cause of Action and the Action itself were thus Transitory in their character, the plain­tiff, in laying the Venue, was permitted to depart as widely from the fact as he thought fit and as was necessary to give the court in which he sued jurisdiction, without caus­ing a discrepancy between the Allegations in the Declaration and the proof at the trial. The usual way of accomplishing this was by stating truly the facts constituting the cause of action as occurring at the place where it really happened, and then laying the Venue under a videlicet, as within the jurisdiction of the court; thus it might be alleged that the deed was dated “at Fort St. George in the East Indies, to wit, at Westminster in the County of Middlesex,” 29 or that the
27. Ellenwood v. Marietta Choir Co., 158 U.S. 105, 39 L.Ed. 913 (1895).
28. flenscood V. Cheeseman, S Serg. & II. (Pa.) 500 (1817). Cf. University of Vermont v. Joslyn, 21 Vt. 52 (1848).

Z9. Mostyn y. Fabrigas, Cowp. 161, 98 Eng.Rep. 1021


Sec. 31



trespass was committed in “Allegheny Coun­ty in Maryland, to wit (scilicet) in the county of Washington in the District of Columbia.” This fictitious device was still in use in Eng­land in the early part of the Nineteenth Cen­tury, and was used in the United States as late as 189S.~° But, according to Keigwin,3’ it “is now used only by exceptionally careful pleaders.”
30. Local Facts must always be truly laid, both in the Declaration and Subsequent Plead­ings, whether the Action be Local or Transitory. And in Transitory Actions, where the defend­ant pleads Transitory matters, the Venue must follow the Declaration, unless his Defense re­qufres a different statement.
IT has been seen that in all Local Actions it is necessary to Aver all material facts as happening where they actually occurred, and the same is equally true as to the Allegation of all Local Facts in both the - Declaration and Subsequent Pleadings, whether the Ac­tion be Local or Transitory. But in actions of the latter kind, where the Subsequent Pleadings ailege only matters Transitory in their nature, it is a rule that the Place of Trial laid in the Declaration draws to itself the Trial of all such matters.32 The defend­ant, therefore, in such cases, is obliged to follow the Venue that the plaintiff has laid, unless his Defense requires the Allegation of a different place; for, if allowed to deviate from this, without the necessity arising from a Defense founded upon Local Facts, he would be able to change or oust the Venue in Transitory Actions, and thus to subvert the rule allowing the plaintiff in such actions
30. Holder v. Aultman, 169 U.s. 81, 18 S.Ct. 269, 42 LEd. 669 (1898).
31. Keigwth, Cases in Common Law PiSding, e. XVII, Locai and Transitory Actions 748 (2d ed., Rochester, 1934).
32. 5 Comyn’s Digest, ‘Pleader” E, 4 (Dublin, 1793).

to bring his suit, and consequently to lay

his Venue, in any county he pleases. It would seem that the necessity of laying any Venue at all in proceedings subsequent to the Declaration would be obviated by this rule, and it has been so held; ~ but in prac­tice it is still usual to lay a Venue in these as well as in the Declaration, and, in point of form, is the proper course.



31. A mistake or omission in laying the Venue may be taken advantage of—

(I) By Demurrer, where the defect is ap­parent on the Face of the Declara­tion

(II) By Plea in Bar or Motion for Non-suit, where it is not.

BY the ancient rule of the Common Law,

a mistake in laying the Venue for Local Mat­ters was ground for Nonsuit, by reason of

misdescription of the subject matter of the suit,34 and its omission, when necessary, an incurable defect,35 But since the estab]ish­ment of the distinction between Local and Transitory Actions, if the fault appears on the face of the Declaration, it will be good cause for Special Demurrer; and, if it does not so appear, it may be Pleaded in Bar of the Action, or taken advantage of at the

Trial, by Motion for a Nonsuit on the ground of Variance.3’ And in Transitory Actions, also, an omission of the Venue, if not De­murred to, may be aided by any Plea which admits the fact for the Trial of which a prop-

33. See Ilderton v. Ilderton, 2 11111. 145, 1213 Eug.Itep.
476 (1703), per Lyre, C.J,
34. SandIer v. Heard, 2 WIll. 1031, 96 Eng.Rep.
605; Bruckshaw v. Hopkins, Cowp. 4013, 95 Eng. Rep. 1157 (1776).
35. 3 Comyn’s Digest, ‘Action” N, 6 (Dublin, 7793); -

7 Bacon’s Abridgment, “Venue” 48 (London 1798).

3~. Domont v. Lockwood, 7 Blaekf. Clod.) 676 (1845).
37. See Haskefl v. Inhabitants of Woolwich 58 Me.

535 (1870).



Ch. 5

er Venue should have been laid,33 or by a Judgment by Default,39 or by verdict; but even in Transitory Actions, as it is necessary that some Venue be laid, the omission re­mains fatal on Demurrer.
32. In Personal Actions, the pleadings must allege the time—that is, the day, month and year—when each Traversable Fact occurred; and when a continuing act is mentioned, its 4uration should he shown.
IT is a general rule of pleading in Personal Actions that the necessity of laying a time, like that of laying a Venue, extends to every Traversable Fact and must be stated as hav­ing taken place on some particular day.42 The rule seems on the surface designed mere­ly to promote Certainty in the Pleadings, and, though but little practical certainty can

result from it, is necessary both to show upon the Record a material fact afterwards to be sustained by Proof, as well as, in the case of the Declaration, that the cause of action, upon the plaintiff’s own showing, must always appear to have accrued before the commencement of the suit.43 It has been laid

38. Anonymous, 3 Salk. 381, 91 Eng.Rep. 885 (1705). And see Mellor v. Barber, 3 TB. 387, 100 Eng.Rep. 635 (1780).
39. Remington v. Taylor, 1 Lut. 235, 125 Eng.Rep.

123, (1701).

4t By the express provisions of the Statute of 16 &

17 Car. II, e. 5 (1664—1665).

43. See Perry, Common-Law Pleading, e. XII, Of The Rules Which Tend to Produce Certainty or Particu­larity in the Issue, 334, 335 (Boston, 1897).
42. 5 Comyn’s Digest, “Pleader” C. 19 (Dublin, 1793):

Halsey y. Carpenter, Cro.Jac. 359, 79 Eng.Ilep. 308 (1615); Denison v. Richardson, 14 East 291, 104 tng.Rep. 612 (1811); Ring v. Roxbrough, 2 Tn. 468 ~7832); Andrews v. Thayer, 40 Conn. 157 (1873); Wellington v. Milliken, 82 Me. 58, 19 Atl, 90 (1889); Cordon v. Journal Publishing Ce,, 81 -Vt. 237, 69 A-tI. 742 (1908).

43. Swift V. Crocker, 21 Pick. (Mass.) 241 (1838); Maynard v. Talcott, 11 Barb. (N.Y.) 569 (1852); Cheetbam v. Lewis, 3 Johns. (Nt) 42 (1808); Lan-

down as a general principle, that whenever it is necessary to lay a Venue, it is also nec­essary to mention time.44

33. Whenever time forms a material point involving the merits of the case, it is of the substance of the issue, and hence must be cor­rectly alleged.
WI-lEN time enters into the terms of a con­tract, or is involved in any of its essential parts, the true time must be stated in plead­ing the contract, in order to avoid a Variance betwean the Pleading and the Proof.43 Thus, where the Declaration stated a usurious con­tract made on December 21, 1774, with pay­ment due on December 23, 1776, and the proof was that the contract was executed on December 23, 1774, with payment due in two years, it was held that the Verdict must be for the defendant; the principle of this deci­sion was that since the time given for the payment being of the substance of an usuri­ger v. Parish, 8 Serg. & B. (Pa.) 134 (1822), and eas­es cited.

It is equally essential that no material fact be stated as having occurred alter the date or issuance of the writ, that being now regarded as the Commence­ment of the Action. Bemis v. Faxon, 4 Mass. 263 (1808); Waring v. Yates, 10 Johns. (N.Y.) 119 (1813); Bronson v. Earl, 17 Johns. (N.Y.) 63 (1819).

But, in some states, the service of the Writ is re­garded as the Commencement of the Action. Jeneks v. Phelps, 4 Conn. 149 (1822); Downer v. Garland, 21 Vt. 362 (1840); Graves v. Ticknor, 6 N.H. 537 (1834).
44. ICing v. Hollond, 5 T.R. 620, 101 Eng.Bep. 346

(1794); Denison v. Richardson, 14 East 291, 104

Eng.Rep. 612 (1811). See, also, Pharr v. Bachelor,

3 Ala. 236 (1831); Opdyeke v. Easton & A. B. Go., 68

N.J.L. 12, 52 Atl. 243 (1002); 1 Chitty, Pleading, c.

IV, Of the Declaration 272 (springfield, 1876).

45. Pope v. Foster, 4 TB. 590, 100 Eng.Rep. 1192

(1792); Carlisle v. Trears, 2 Cowp. 671, 98 Eng.Rep.

1300 (1777); Stafford v. Forcer, 10 Mod. 311, 88 Eng.

Rep. 742 (1715); Tate v. Wellings, 3 T.R. 531, 100

Eng.Rep, 1158 (1792); Hardy v, Cathcart, 5 Taunt.

2, 128 Eng.llep. 585 (1813).

On the rule where the instrument sued upon has no date, see Grannis v. Clark, S Cow. (N.Y.) 36 (1827); Streeter v. Streeter, 43 Ill. 155 (1867).

Sec. 34



ous contract, such time had to be proved as laid.46
So, where the Declaration alleged an usur­ious agreement on the 14th of the month, to forbear and give day of payment for a certain period, but it was proved that the money was not advanced until the 16th, the plaintiff was Nonsuited, it being held by Lord Mansfield at the Trial, and afterwards by the Court en banc, that the day from whence the forbearance took place was ma­terial, though laid under a Videlicet.47
In pleading any written document, there­fore, such a bill of exchange, promissory note, a record or a specialty, the day on which it is alleged to bear date, must be cor­rectly alleged. Otherwise there will be a Variance between the writing itself when of­fered in evidence and the description of it in the pleading.43
The same rule applies whenever the time stated in the pleadings on either side is to be proved by Record or by a written instru­ment referred to in the pleadings. This ruie in regard to written instruments is neces­sary for the further reason that the Record should thus show the true date, and thus con­stitute a bar to another suit on the same instrument by giving a different date, it hav­ing been one of the objects of the rule as to certainty, so far as the Declaration was con­cerned, that the Judgment rendered in the case should operate as a bar to any subse­~uent action involving the same cause.
34. Whenever the time to be alleged does not constitute a material point in the case, and s not of the substance of the issue or matter of
46. Carlisle v. Trears, 2 Cowp. 671, 98 Eng.Rep. 1300 (1777).
47. Johnson v. Picket, cited in Grimwood v. Barret,

6 LB. 463, 101 Eng.Rep. 650 (1795).

-48. Little v. Blunt, 16 Pick, 365 (Mass,, 1835); Row­land v. Davis, 40 Mich. 545 (1870).

description, any time may be assigned to a given fact.
tic all matters, generally speaking, save those previously mentioned, time is consid­ered as forming no Material Part of the Is­sue, so that the pleader, when required to allege a time for any Traversable Fact, is not compelled to allege it truly, and may state a fact as occurring at one time, and prove it as happening at a different time.49 The reason of the rule is that as a thy is not an Independent Fact or Substantive Matter, but a mere circumstance or accompaniment of such matter, it obviously cannot in its own nature be material, and can only be made so, if at all, by the nature of the Fact or Matter in connection with which it is pleaded. Therefore, if a Tort is stated to have been committed,5° or a parol contract made,5’ on a particular day, the plaintiff is in neither case confined in his Proof to the day as laid,
49. English: Mathews v. Spicer, 2 Str. 506, 93 Eng.

Rep. 861 (1729); Stafford v. Forcer, 10 Mod. 311, 88

Eng.Itep. 742 (1715); Illinois: Searing v. Butler, 69

Ill. 575 (1873); Maryland: Spencer v. Trafford, 42

Md. 1 (1875); Michigan: Rowland v. Davis, 40

Mich, 545 (1879); Mississippi: Hill v. Robeson, 2

Sin. & M, (Miss.) 541 (1844); New Hampshire: Na­tional Lancers v. Levering, 30 N.H. 511 (1855);

Pennsylvania: Stout v. Rassel, 2 Yeates (Pa.) 334

(1798); vermont: Kidder v. Bacon, 74 Vt. 263, 52

AU. 322 (1902); Gordon v. Journal Publishing Co.,

Si Vt. 237, 69 AtI. 742 (1908).
The words or phrase, “on or about” has been con­strued as taking away all certainty, then leaving the time indefinite.
The pleader, however, “is subject to certain restric­tions: 1, He should lay the Time under a videlicet, if he does not wish to be held to prove it strictly;

2. He should not lay a Time that is intrinsically Impossible, or inconsistent with the fact to which It relates.” Stephen, A Treatise on the Principles of Pleading in Civil Actions, c. XI, Of the Principal Rules of Pleading,

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