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Rules Which Tend to Produce Certainty or Particularity in the Issue Rule I


RULES WHICH TEND TO PRODUCE CERTAINTY OR PARTICULARITY IN THE ISSUE RULE I. The rules of pleading tending to produce certainty in the issue are numer out, the first of which is: The p/eadings nzust hare cer tainty of place. This rule grew out of the former re quirement that the jurors should be from the locality wherein the cause was alleged to have arisen, thus making it necessary to allege the place with particu larity. Such place is called the venue of the action, and to allege it in the declaration is to lay the venue.

The original writ must be directed to the sheriff of some county, and in that county the action is said to be brought or laid. Each affirmative traversable allega tion in the writ is to be laid with a 'UMW or place, com prising not only the county in which the fact occurred, but also the parish, town or hamlet within that coun ty; but no such particularity is required in mere mat ters of inducement. Of the different facts alleged in the writ, it is necessary that some principal one, at least, should be laid in some parish, town or hamlet, within the county in which the action is brought, in or der to justify the bringing of the action in that county, and such county and the particular place so laid with in it are called the venue in the action, or the venue where the action is laid.

The declaration must have the same venue as the original writ. The county where the action is laid is place,d, at the commencement in the margin of the declaration. And all the different affirmative tra versable alleg-ations are to be laid with a venue in par ish, town or hamlet, as well as county, in the same manner as in the original writ, and in accordance with it.

In proceedings by bill, the law of venue is the same, except, of course, that there is no original writ, and that the bill first states the venue. The plea, repli cation, and subsequent pleadings lay a venue to each affirmative traversable allegation, according to the principles already stated, until issue joined.

Under the early law, because jurors were required to be men acquainted with the facts, they were re quired to be summoned from the venue of the action. Later, as they became transformed into judges of the facts, determining them from the evidence, this re quirement became a matter of mere form, and it was considered sufficient if no more than two jurors were from the venue. Finally, in 1865, one of the statutes of jeofails (i6 and 57 CAR. II, c. 8), provided that "after verdict, judgment shall not be stayed or re versed, for that there is no right venue, so as the cause were tried by a jury of the proper county or place where the action is laid." Before that time it had been ground for arresting or reversing judgment in case the jury had been summoned from the venue in the action when that differed from the venue laid to the fact in issue.

Another statute (4 Anne, c. i6), provided that "every venire facias for the trial of any issue shall be awarded of the body of the proper county where the issue is triable", instead of being as formerly, award ed from the particular venue of parish, town or ham let. The joint effect of these two statutes is that the venire now directs that the jury in all cases shall be summoned from the body of the county in which the action is laid, whether or not that be the venue of the fact in issue.

Actions are either local or transitory. An action is local if all the principal facts on which it is founded be local. It is transitory if any principal fact be of the transitory kind. And a fact is transitory when it might equally well have occurred elsewhere than where it did ; as, for example, an assault. An action is local if it could not have occurred elsewhere. as a trespass to a particular parcel of land. The venue of local facts must be truly laid. In transitory facts is need not be ; and as the locality of a transitory fact is immaterial, there can be no variance in regard to it.

So in transitory actions the venue may be laid at pleasure, but in local actions must be laid truly. But the plaintiff's freedom to lay the venue of a transitory action where he pleases is checked by a practice of the court to allow the defendant to move the court to have the venue changed so as to be in conformity to the fact. This motion, when supported by affidavit that the cause of action arose wholly in the county to which it is proposed to change the venue will, in most cases, be granted, and the plaintiff obliged to amend his dec laration in this regard, unless he, on the other hand, will undertake to give at the trial, some material evi dence arising in the county where the venue was laid. The rule is, that while the venue of transitory facts need not be laid truly, it cannot be anything at pleas ure, but must be the venue laid in the action. No venue need be laid with respect to transitory matters in the pleadings subsequent to the declaration, because, with respect to every matter of this description, the original venue will be taken to be implied, but it is usual to lay a venue in these, and is the better course.

When transitory matters are laid out of their true place, they should be laid under a videlicet, that is, with the prior intervention of the words, "to-wit" or "that is to say". The effect and object of the videlicet is to mark that the party does not undertake to prove the precise place alleged. The proper method of alleging a local matter occurring outside the realm was ar ranged in this fashion, "In parts beyond the ;eas, at Fort St. George, in the East Indies, to wit, at West, ininster, in the county of Middlesex." The true place being followed by a videlicet and then a county in En g-land. This method is also usually applied to local matters arising within the realm if they happen at a different venue from that laid in the action.

Where place is alleged as a matter of description and not as a venue, it must in all cases be stated truly, under peril of variance.

If no venue be laid in the declaration the defendant may demur, or may plead the defect in abatement. Even in local and penal actions, the only modes of ob jecting to the venue are by demurrer, or at the time as ground of non-suit.

venue, laid, action, county and transitory