DECLARATION -A declaration is a
written statement submitted to a court in which the
writer swears 'under penalty of perjury' that the
contents are true. That is, the writer acknowledges
that if he is lying, he may be prosecuted for perjury.
Declarations are normally used in place of live testimony
when the court is asked to rule on a motion.
A typical declaration sets forth the factual assertions
of the person signing it (called the declarant) and
ends with a statement worded like this one: 'I declare
under penalty of perjury that the foregoing is true
and correct, and would be my testimony if I were in
a court of law.' The date and place of signing are
usually included.
Some states allow declarations to be used in the
place of affidavits, thus avoiding a trip to the notary
public.
A declaration is a specification, in a methodical
and logical form, of the circumstances which constitute
the plaintiff's cause of action. In real actions,
it is most properly called the count; in a personal
one, the declaration. The latter, however, is now
the general term; being that commonly used when referring
to real and personal actions without distinction.
The declaration in an action at law answers to the
bill in chancery, the libel of the civilians, and
the allegation of the ecclesiastical courts.
It may be considered with reference, 1st. To those
general requisites or qualities which govern the whole
declaration; and 2d. To its form, particular parts,
and requisites.
The general requisites or quali- ties of a declaration
are first, that it correspond with the process. But,
according to the present practice of the courts, oyer
of the writ cannot be craved; and a variance between
the writ and declaration cannot be pleaded in abatement.
- Secondly. The second general requisite of a declaration
is, that it contain a statement of all the facts necessary
in point of law, to sustain the action, and no more.
- Thirdly. These circumstances must be stated with
certainty and truth. The certainty necessary in a
declaration is, to a certain intent in general, which
should pervade the whole declaration, and is particularly
required in setting forth:
1. The parties; it must be stated with certainty
who are the parties to the suit, and therefore a declaration
by or against 'C D and Company,' not being a corporation,
is insufficient.
2. The time; in personal actions the declaration
must, in general, state a time when every material
or traversable fact happened; and when a venue is
necessary, time must also, be mentioned. The precise
time, however, is not material unless it constitutes
a material part of the contract declared upon, or
where the date, etc., of a written contract or record,
is averred. 3. Other circumstances necessary to maintain
the action.
The parts and particular requisites of a declaration
are:
First. The Title of the court and term.
Second. The Venue. Immediately after tšhe title
of the declaration follows the statement in the margin
of the venue, or county in which the facts are alleged
to have occurred, and in which the cause is tried.
See Venue.
Third. The Commencement. What is termed the commencement
of the declaration follows the venue in the margin,
and precedes the more 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 be sued in another right, or in a political
capacity, (as executors, assignees, qui lam, etc.)
of the character or right in respect of which they
are parties to the suit. 2d. Of the mode in which
the defendant has been brought into court; and, 3d.
A brief recital of the form of action to be proceeded
in.
Fourth. The statement of the cause or action, in
which all the requisites of certainty before mentioned
must be observed, necessarily varies, according to
the circumstances of each particular case, and the
form of action, whether in assumpsit, debt, covenant,
detinue, case, trover, replevin or trespass.
Fifth. The Several Counts. A declaration may consist
of as many counts as the case requires, and the jury
may assess entire or distinct damages on. all the
counts and it is usual, particularly in actions of
assumpsit, debt on simple contract, and actions on
the case, to set forth the plaintiff's cause of action
in various shapes in different counts, so that if
the plaintiff fail in proof of one count, he may succeed
in another.
Sixth. The Conclusion. In personal and mixed actions
the declaration should conclude to the damage of the
plaintiff unless in scire facias and in penal actions
at the suit of a common informer.
Seventh. The Profert and Pledges. In an action at
the suit of an executor or administrator, immediately
after the conclusion to the damages, etc., and before
the pledges, a profert of the letters testamentary
or letters of administration should be made. At the
end of the declaration, it is usual to add the plaintiff
as common pledges to prosecute, John Doe and Richard
Roe.
A declaration may be general or special; for example,
in debt or bond, a declaration counting on the penal
part only, is general; when it sets out both the penalty
and the condition, and assigns the breach, it is special.
