Str. 1271. If the objection do not appear on the face of the pleadings, the plt. would be nonsuited at the trial, if he did not prove the declaration was filed or delivered before the cause of action accrued, supra; or if, in fact, the cause of action, in an action in K. B. by bill, accrued after the filing or delivery of declaration, or after the issuing the writ, in proceedings by original or in C. P., the deft. might plead that fact in abatement, Com. D. Abatement, G. 6, or plt. would be nonsuited: 2 Saund. 1, n. 1; Burr. 1241; 1 Bl. R. 312. The plt. may, at all times, amend, Tidd, 428, 1 Wils. 78, 7 T. R. 474, except, perhaps, in a penal action: 6 Taunt. 19; 1 Marsh. 419, s. c. Where the declaration is entitled generally of the term, or of a day before it was actually filed or delivered, so that thereby deft. may be put to some trouble or prejudice, the court will order plt. to entitle it of the day of such filing or delivery: Tidd, 428; 1 Chit. Pl. 239. As, where the declaration is entitled of the term generally, and the deft. pleads plene administravit, C. T. Hardw. 141, or a tender made before the exhibiting the declaration, upon which he would give in evidence a tender made between the first day of the term, to which the declaration relates, and the day of suing out the writ, he has a right to call on the plt. to entitle his declaration specially: 1 Wils. 39, 304; 1 Str. 638, s. c. Deft., however, may always, for the purposes of his defence or otherwise, plead, or show in evidence at the trial, 3 Burr. 1241, 4 Esp. Rep. 72, when in fact the declaration was filed or delivered, as, by proving the writ, or the like, 5 B. & C. 149, Tidd, 428; see "Process," the title of the declaration being mere prima-facie evidence of the day of the filing or delivery of it: ib.

Venue.] After the statement of the title of the court and term, follow the statement of the venue, which is inserted, first in the margin, and afterwards in the body part, of the declaration. With respect to what venue should be stated, it should be the county wherein the trial of the action will take place.

Some actions are transitory, others local. Where the cause of action might have arisen in any county, the venue is transitory, and the action may be brought in any county; therefore, actions on contracts, as on a covenant between the original parties and their covenantors to it, debt or assumpsit, for use and occupation, on bail bonds, bills, and all other such contracts, detinue, &c., 5 Taunt. 29, Co. D. N. 12, 1 Saund. 74, 241, b., Fort. 366, Str. 727, or for injuries ex delicto to the person or personal property, as assaults, batteries, false imprisonment, Cowp. 161, slander, libel, 1 T. R. 571, trover, Co. D. Action, N. 12, escapes, &c., 1 Wils. 336, are transitory, and may be laid in any county. And it makes no difference whether such contract were entered into, Com. D. Action, N. 12, 1 Saund. 74, 241, b., Cowp. 180, or such tort committed, out of the kingdom, Cowp. 161, Com. D. Action, N. 12, W. Bl. R. 1058, or jurisdiction of the king's courts, ib.; and this, though the action be against a member of Parliament: 4 East, 162.

The venue is local, and must be laid in the county where the cause of action accrued, when such cause of action could only have arisen in a particular county; such as action for injury to real property, actions of ejectment, and all real and mixed actions: therefore, an action of

trespass to real property, or case for a nuisance to it, 1 Taunt. 379, must be brought in the county where the property is situate. So must an action for waste, or injury to a watercourse, right of common, way, &c., ib. And, if an injury be committed to land out of the jurisdiction of our courts, or out of the kingdom, the plt. has no remedy here,

if there be a court of justice to resort to where the land is [*413] situate: 4 T. R. 503; 1 Str. 646. The venue is local in replevin: 1 Saund. 347, n. 1. Where an injury has been committed in one county to real property situate in another, or wherever the action is founded upon two or more material facts which took place in different counties, the venue may be laid in either: 2 Taunt. 252; 2 T. R. 238. If there be a contract independent of the tort, whereon the plt. may found his action and bill, the action thereon is transitory, see 1 Taunt. 379, and the parties may, by the leave of the court, try a local action in another county, such consent appearing on the record: Co. Lit. 1256, 126, a. n. 1, in T. R. 372.

In an action upon a lease, for rent, not repairing, &c., when the action is founded on the privity of estate, and not upon the privity of contract, it is local, and the action must be brought in the county where the estate lies, 1 Saund. 241, b. (6); as, if the action be against the executor of the lessee, as assignee upon the privity of estate, it is local, 2 Lev. 80; so in debt, by the assignee, Cro. C. 183, 1 Wils. 165, or devisee, W. Jon. 43, of the lessor against the lessee, which is founded on the privity of estate, the action is local. So, in debt or covenant by the lessor, 6 Mod. 194, or his personal representatives, Latch. 197, or by the grantee of the reversion, Carth. 182, 3 Mod. 336, 7 T. R. 583, against the assignee of the lessee, the venue is local. See further, as to the venue in actions on leases, post, "Lease."

An action for breach of a custom or by-law is local; but an action of debt on a charter is not: 2 Bl. 1068. Debt for a copyhold fine is local : Entr. 177; 1 Chit. Pl. 243. Debt for arrears of a rent-charge against the pernor of the profits, is local: Hob. 37.

In an action on a record, the venue is local and must be laid in the county where the record is: post, "Recognisance," "Judgment."

In all actions on penal statutes, the same is local, 31 Eliz. c. 5, s. 2, 21 Jac. 1, c. 4. s. 2, 3 M. & S. 429: 5 M. & S. 427; but, in actions on statute by the party grieved, it is not so: 1 Show. 354; B. N. P. 196. The venue, in an action on a penal statute, should be laid in the county where the offence was completed: Pearson v. M'Gowran, 3 B. & C., 700; 5 D. & R. 616; post, "Statute."

By various statutes, the venues in actions against particular persons, are made local, as in actions against justices, constables, &c., and other public officers: see, "Officer," "Justice."

A venue should be laid to every material traversable fact: R. T. H. 288; 14 East, 291, 306; 3 M. & S. 149; Com. D. Plead., C. 20. It is unnecessary to lay it to matter of inducement, when not traversable, and which cannot be tried, ib. Plowd. 191; nor is it necessary so to do to a mere negative allegation: 5 T. R. 616; 1 Taunt. 379.

With respect to the mode of stating the venue, it is first stated in the margin of the declaration, after the title of court and term. Though a

wrong county be here stated, it will not be objectionable if a right one appear in the body of the declaration; and, on the other hand, if a right county be here stated, it will help a wrong one, stated in the body: 1 Taunt. 379; 1 Saund. 308, n. 1. Where no local description is necessary, as in replevin, &c. though usual, it is not necessary to aver that the fact took place in any particular parish or place within the county; it suffices to allege it took place in the county only: 3 M. & S. 148; Co. Lit. 125, b. As to describing the venue in penal actions, see post, "Statute." Even in local actions, unless in replevin, no precise local description is necessary: 2 East, 503. When a transitory matter has occurred abroad, it may be stated to have taken place here; though, in some cases, for the purpose of explaining a fact, it may be necessary to state it occurred abroad: Cowp. 170; 10 Mod. 255; 1 Chit. Pl. 241, 250; 2 B. & A. 301; 1 B. & C. 16. A variance in the proof as to the parish or place stated as venue is, in general, immaterial, 2 East, 503; but, if the parish

or place be stated as matter of description, as, in the situa[*414] tion of premises, &c., then a variance would be fatal: 1 Esp.

Rep. 273; 2 B. & P. 281; ante, 413; and see "Ejectment, "Trespass." Describing premises as situated "at or near" a place, does not require strict proof: Pea. L. E. 199; 4 T. R. 55S, 561. In an action on a penal statute, where a part of a penalty is given to the poor of the parish, the name of such parish is matter of substance, and the offence must be necessarily laid and proved to have taken place therein: 2 East, 503; 3 Esp. Rep. 319; 4 Bing. 449; 7 B. & C. 111. In actions in inferior courts in general, except the courts of the counties palatine, and a few others, it is necessary to aver that every malerial fact took place within the jurisdiction of the court; and an omission of such averment will render the declaration bad, even after verdiet, 1 Saund. 74, n. (h), 1 T. R. 151, 6 T. R. 764, 2 Str. 827, 3 B. & B. 309; but, to averments of facts which are stated only in aggravation of damages, and which might be omitted, this is not necessary: ib. In assumpsit for work and labour in healing horses within the jurisdiction of a county court, and for potions, &c., administered on those occasions, it was held that this amounted to a sufficient averment that the potions were administered within the jurisdiction: 3 B. & B. 309.

With respect to the mode of taking advantage of a defect in stating the venue, if the action be local, and the venue be laid in a wrong county, and which appears in the pleadings, the deft. may demur, 1 Saund. 241, c., Carth. 182, 1 Wils. 165; or, if it does not so appear, it will be a ground of nonsuit under the general issue, 7 T. R. 588; 2 East, 580, 1 Saund. 347, n. 1. But it affords no ground for writ of error: 16 & 17 Car. 2, c. 8; 4 Anne, c. 16, s. 2; 4 G. 2, c. 26; 1 Saund. 347, n. 3; 7 T. R. 583. If a local description or venue, when necessary, be omitted, it is not matter of nonsuit, but of demurrer or arrest of judgment: 2 East, 499; 2 Wils. 354. A mere formal defect in stating the venue is aided by pleading over, 2 Ld. Raym. 1039, Dyer, 15, a., and can only be objected to by special demurrer: 3 T. R. 387. In actions in inferior courts, as we have seen, the omission in stating a material fact to have accrued within the jurisdiction is bad, even after verdict or judgment:

supra. A variance in description of local situation of property is sometimes fatal: ante, 413; post, "Trespass," "Ejectment."

Names of Parties in Commencement of Declaration.] The names of the parties, should, in general, be set forth as they appear in the process. If, however, there be a misnomer in the process, the mistake should be rectified by declaring in the right name, and stating that plt. sued, or deft. was sued, by the wrong one, 3 East, 187, see form, post; otherwise, if the misnomer be carried into the declaration, deft. might plead in abatement, ante, 10, but he could not take any other advantage. The deft.'s addition need not be stated: 3 B. & P. 395; Com. D. Plead. C. 9. If plt. sues, or deft. is sued, in any particular character, he should be described accordingly, though, perhaps, the omission would be cured by the body-part of the declaration stating it.

Statement of Mode in which Defendant has been brought into Court.] If the action be by bill in K. B. against a common person, the declaration usually begins by stating deft. to be in the custody of the marshal; or, if he be in custody of the sheriff, or bailiff, or steward of a franchise, having the return and execution of writs, it should allege in whose custody he is at the time of the declaration, by virtue of the process of the court at the suit of the plts., 4 & 5 W. & M. c. 21, s. 3, Tidd, 8 ed. 342, 1 T. R. 342; and if, in the latter case, it is not so alleged, deft. may get discharged out of custody, or may be demurred generally: 1 Wils. 119; 2 Ld. Raym. 1362.

In actions against attorneys, instead of stating them to be in the custody of the marshal or the sheriff, it should be stated that they are present in court; or, in actions against peers or members [*415] of Parliament, that they have privilege of Parliament. In proceedings against attorneys, officers of the court, or prisoners in vacation, in a cause accruing in such vacation, a special memorandum of the filing of the bill is necessary: see Tidd, 434; 1 Chit. Pl. 234. As to describing the plt.'s or deft.'s representative character, in actions relative thereto, see "Bankrupt," "Executors," " Partners," Infants are stated to sue by guardian or prochein amy: 2 Saund. 117, f, n. 1. Where one of several plts. or defts. dies, after issuing the writ, and before declaration, the commencement should suggest the death: 8 & 9 W. 3, c. 11, s. 7; 1 Burr. 363. Where one of several defts. has been outlawed, upon an original writ in either of the courts, the declaration should, in the commencement, state the outlawry in the particular suit: 3 East, 144; 1 Wils. 78; 1 East, 133.

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In account, covenant, debt, annuity, detinue, and replevin, where the original is a summons, the declaration, by original writ in K. B. or C. P., begins by stating, that deft. was summoned to answer; in actions on the case, trespass, ejectment, &c., where the original is an attachment, it states, that he was attached to answer, Com. D. Pleader, c. 12, 2 Saund. 1, n., 1 Tidd, 435; a mistake, however, in this, does not appear material: see 1 Chit. Pl. 256, 7. It would, however, be bad to begin with a queritur, as in K. B. by bill: Com. D. Pleader, C. 11. In actions by original, and in C. P., it is stated, plt. complains by his attorney; stating he complained by more than one attorney would be bad: 4 East; VOL. I.

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195. An omission in stating plt. complains by his attorney is immaterial: 1 B. & P. 366.

Recital of Cause of Action.] It is now no longer necessary, in proceedings by original, to recite the whole of the original writ, Tidd, 435; 1 Chit. Pl. 257; nor is it necessary in the Court of C. P., in an action of trespass, to recite the trespass, ib., though it is usual shortly to state what the plea is, as in "a plea of trespass on the case upon premises," &c., or the like. This is, nevertheless, immaterial, for the body of the declaration shows the nature of the plea: 11 East, 65; Plead. Ass. 292. Statement of Cause of Action.] The mode of stating the cause of action, in particular actions, will be found under the various titles of actions throughout the work: see "Assumpsit," "Debt," "Covenant," "Detinue," "Case," Trover," "Replevin," "Trespass," &c. The following is a summary of the general rule applicable to the statement of the cause of action, and indeed to all pleadings: they will be found more fully collected in Mr. Chitty's treatise on Pleadings, vol. 1, 195

to 209.

The declaration must allege all the circumstances necessary for the support of the action, and contain a full, regular, and methodical statement of the injury which the plt. hath sustained, and the time and place, and other circumstances, with such precision, certainty, and clearness, that the deft. knowing what he is called upon to answer, may be able to plead a direct and unequivocal plea, and that the jury may be enabled to give a complete verdict upon the issue; and that the court, consistently with the rules of law, may give a certain and distinct judgment upon the premises: Cowp. 682; 6 East, 422; 5 T, R. 623. Facts only are to be stated, and not arguments or inferences, or matter of law, ib.; and the party can only succeed in the facts as they are alleged and substantially proved. But, though the general rule is, that facts only are to be stated, yet there are some instances in which the statement in the pleading is proper, though it does not accord with the real facts, the law allowing a fiction, as in ejectment, trover, detinue, &c.: 2 Burr. 667; 1 N. R. 140. No fact that is not essential to substantiate the pleading should be stated. The statement of immaterial or irrelavent matter is not only censurable on the ground of expense, but frequently affords an advantage to the opposite party, either as the ground of a vari[*416] ance, or as rendering it incumbent on the party pleading to

adduce more evidence than would otherwise have been necessary, though, indeed, if the matter unnecessarily stated be wholly foreign and impertinent to the cause, so that no allegation whatever on the subject was necessary, it will be rejected as surplusage, it being a maxim, that utile per inutile non vitiatur. See cases, &c., in Chit. on Pl. 208, 9, 10. Besides this, the pleading must not state two or more facts, either of which would of itself, independently of the other, constitute a sufficient ground of action or defence: Co. Lit. 304, a.; Com. Dig. Pleader, C. 33, E. 2; 1 Chit. Pl. 208.

The facts should be stated logically, in their natural order: as, on the part of the plt., his right, the injury, and consequent damage, and these with certainty, precision, and brevity. The facts, as stated, must not be senseless or repugnant, nor ambiguous or doubtful in meaning, nor argu