by stat. 19 G. 3, c. 70, s. 4, where final judgment is given in an inferior court of record, it shall be lawful for any of the courts of record at Westminster, upon affidavit “of such judgment being obtained, and of diligent search and inquiry having been made after the person of the defendant or his effects, and of execution having issued against such person or effects, and that they are not to be found within the jurisdiction of the inferior court," to cause the record to be removed into such superior court, and to issue writs of execution thereupon to the sheriff of any county or place, against the defendant's person or effects, in the same manner as upon judgments in the said courts at Westminster. The amount of the judgment, or of the original debt or damages, in such a case, is immaterial. Knowles v. Lynch, 2 Dowl. 623. Where the defendant had rendered in discharge of his bail in the court below, but before he could be charged in execution he was removed by habeas to the Fleet Prison, the court of Common Pleas granted a certiorari, under this statute, to bring up the record, in order to charge him in execution upon it. Jordan v. Cole, 1 H. Bl. 532. The statute, however, does not extend to judgments in ejectment; Doe v. Shipley, 2 Dowl. 408; nor to judgments upon foreign attachments in the mayor's court of London, against the garnishee, Bulmer v. Marshall, 5 B. & A. 821, the statute being confined to cases where the proceedings below are similar to those in the court above. Per Abbot, C. J. Id. 823. The writ cannot regularly be obtained, without motion to the court, see Rowell v. Breedon, 3 Dowl. 324, or application to a judge at chambers, and upon production of the affidavit above mentioned; but the rule is absolute in the first instance. Pawsey v. Goodey, 3 Dowl. 605. Knowles v. Lynch, 2 Dowl. 623.

The above statute was extended to the counties palatine by stat. 32 G. 3, c. 68, s. 1. But as to the county palatine of Lancaster, this is at present regulated by stat. 4 & 5 W. 4, c. 62, s. 31; by which it enacted, that if the plaintiff or defendant remove his person or goods out of the jurisdiction, any of the courts at Westminster, upon a certificate from the prothonotary of the court below or his deputy, of the amount of the judgment, to issue a writ of execution against the person or goods of the party, for the amount of the judgment and the costs of the writ and certificate, to the sheriff of any county, &c. There must also be an affidavit in this case, similar to that required by stat. 19, G. 3, c. 70, above mentioned; Duckworth v. Fogg, 4 Dowl. 396; but it seems that it will be sufficient if it state a search for the person or goods of the party, and the court, or, I believe, a judge at chambers, will thereupon grant the execution against the person or goods accordingly. Lord v. Cross, 4 Nev. & M. 30, 3 Dowl. 4.

CHAPTER III.

Proceedings from declaration to plea.

SECTION I.

Declaration.

1. Form of it.

If your declaration is to be special, or to contain any other than the common counts, or a count on a bill of exchange or promissory note, lay proper instructions before counsel or a pleader to draw it. Afterwards engross it upon plain paper, and deliver it, or file and give notice of it, as shall presently be directed. The common forms of declarations will be found in the Appendix.

In these, and indeed in all declarations, great attention must be paid to the following particulars :

1. The declaration must be intituled in the proper court; R. G. M. 3 W. 4, s, 15; otherwise the court will set it aside for irregularity. Ripling v. Watts, 1 Har. & W. 525, 4 Dowl.

290.

2. It must bear date on the same day on which it is delivered or filed; R. G. M. 3 W.4, s. 15; otherwise the court will set it aside for irregularity. See Newnham v. Hanny, 5 Dowl.

259.

3. In local actions, the venue must be laid in the proper county, otherwise the plaintiff will be nonsuit. But a declaration laying the venue in a different county from that mentioned in the process, is no irregularity. R. G. H. 2 W. 4, s. 40. 4. It must correspond with the writ, as to the parties. Where the process was at the suit of two plaintiffs, and the declaration at the suit of one, the court set it aside for irregularity. Rogers v. Jenkins, 1 B. & P. 383. But where the writ is against two or more defendants, there is no objection to the declaration being against one only; Coldwell v. Blake, 2 Cr. M. & R. 249; Stables v. Ashley, 1 B. & P. 49; but you cannot afterwards declare against the other, in a separate action. Pepper v. Whalley, 2 Dowl. 821, 1 Bing. N. C. 71, and see R. G. M. 3 W. 4, s. 1. Also if, upon a writ against A. and another against B, there be a joint declaration against both, the court will set aside the declaration for irregularity; Haighv.Conway, 15 East, 1; particularly as now the writ must contain the names of all the defendants. R. G. M. 3 W. 4, s. 1. See Christie v. Walker, 1 Bing. 48 semb. cont. If the writ be against the

defendant and an appearance entered for him by the name of J, and the plaintiff declare against him by the name of R, sued by the name of J, the court will set aside the declaration for irregularity. Delaney v. Cannon, 10 East, 328; and see Gould v. Barnes, 3 Taunt. 504. Oakley v. Giles, 3 East, 167. Doe Butcher, 3 T. R. 611. Symmers v. Wason, 1 B. & P. 105. If the writ be against a defendant by the name of Richard, and the declaration by the name of Joseph, the court will set aside the declaration for irregularity; but if the defendant do not object to it, and judgment by default be also signed against him as Joseph, he cannot move to set aside the judgment, because it is warranted by the declaration; nor the declaration, because it is too late to object to it. Kitchen v. Roots, 8 Dowl. 232, 9 Law, J. 5, ex. And where the declaration stated the name of the plaintiff as Henry H. Lindsay, having the initial merely for the second christian name, the court held it to be immaterial. Lindsay v. Wells, 3 Bing. N. C. 777. Formerly a plaintiff, upon general process, might declare in auter droit, as executor, &c., Watson v. Pilling, 6 Moore, 66, or qui tam; Lloyd v. Williams, 2 W. Bl. 722; and the court of Exchequer have holden that this may still be done. Knowles v. Johnson, 2 Dowl. 653. But upon process in auter droit or qui tam, the plaintiff cannot declare in his own right. See Anon. 1 Dowl. 97. Douglas v. Irlam, 8 T. R. 416.

5. It must correspond with the writ, as to the cause of action. Where the writ was on promises, and the declaration in case, the court set aside the declaration for irregularity. Scrivener v. Watling, 1 Har. & W. 8. King v. Skiffington, 1 Cr. & M. 363. And the same, where the writ was on promises, and the declaration in covenant; Ward v. Tummon, 4 Ñev. & M. 876; where the writ was in trespass, and the declaration on promises; Edwards v. Dignam, 2 Cr. & M. 346; where the writ was in case, and the declaration in trespass. Thompson v. Dicas. 1 Cr. & M. 768. But where the writ was on promises, and the declaration stated that the defendant was summoned to answer the plaintiff in a plea, without saying "on promises," but was in other respects a good declaration in assumpsit, it was holden to be sufficient. Straughan v. Buckle, \ Har. & W. 519. So where the writ was in debt, and the declaration commenced in debt, but concluded in assumpsit, the court held this to be a subject of demurrer, and not of a motion to set aside the declaration for irregularity. Rotton v. Jeffery. 1 Dowl. 637. So where the writ was "in a special action," and the declaration on promises, the court refused to set aside the declaration, saying that the only fault was in the writ. Moore v. Archer, 4 Dowl. 214. And where the writ, which was on promises, was indorsed for £8 and costs, and that sum not being paid, the plaintiff declared in assumpsit, not only for the £8, but added a special count for unliquidated damages on a dif

ferent ground of action, the court held that he might do so. Bowditch v. Slaney, 1 Hodg. 224. Formerly where there was a variance between the declaration and process in the cause of action, the court in bailable actions would have entered an exoneretur upon the bail piece, or discharged the defendant upon a common appearance; 2 Saund. 72a; but now they will only set aside the declaration for the irregularity. Ward v. Tummon, 4 Nev. & M. 876. Formerly also if the declaration was for a different cause of action from that stated in the affidavit to hold to bail, the court would discharge the defendant on a common appearance, or enter an exoneretur on the bail piece; 2 Saund. 72 a; but it seems from the case last mentioned, that they would not do so now, See Gray v. Harvey, 1 Dowl. 114, particularly as the capias is now merely a collateral proceeding, and not strictly process in the action.

6. Special venue must not be stated in the body of the declaration; R. G. T. 4 W. 4, s. 8; otherwise a judge at chambers will order it to be struck out; but it is not the subject of a demurrer. Harper v. Chumneys, 2 Dowl. 680. Fisher v. Snow, 3 Dowl. 27. Townsend v. Gurney, 1 Cr. M. & R. 590.

Notice to plead indorsed.] There must be a notice to plead indorsed on the declaration, even although it be filed; otherwise the plaintiff cannot sign judgment for want of a plea, without giving such a notice on a separate paper, even although there be a rule to plead, and demand of plea. Heath v. Rose, 2 New Rep. 223. The indorsement is in this form: "The defendant is to plead hereto in [four," or "eight] days, otherwise judgment."

Striking out counts.] By R. G. H. 4 W. 4, s. 5, "several counts shall not now be allowed, unless a distinct subject matter of complaint is intended to be established in respect of each;" "and therefore counts founded on one and the same principal matter of complaint, but varied in statement, description or circumstances only, are not to be allowed. Id. This, however, "is not to be considered as precluding the plaintiff from alleging more breaches than one, of the same contract, in the same count." Id. And "where more than one count shall have been used, in apparent violation of the preceding rule, the opposite party shall be at liberty to apply to a judge, suggesting that two or more of the counts are founded on the same subject matter of complaint, for an order that all the counts introduced in violation of the rule be struck out, at the cost of the party pleading; whereupon the judge shall order accordingly, unless he shall be satisfied upon cause shown, that some distinct subject matter of complaint is bonâ fide intended to be established in respect of each of such counts, in which case he shall indorse upon the summons, or

state in his order, as the case may be, that he is so satisfied, and shall also specify the counts mentioned in such application, which shall be allowed." Id. s. 6. If at the trial the plaintiff fail in proving a distinct cause of action upon each count, there shall be a verdict against him upon the counts he shall fail to establish, and he shall be liable for the costs thereby occasioned, not merely of the pleadings, but of the evidence also; or if he obtain a verdict, the judge may certify, to deprive him of costs. Id. s. 7. See Head v. Baldrey, 11 Ad. & El. 906. Dewar v. Swabey, Id. 913. Jackson v. Galloway, 8 Law J. 29 cp. Plummer v. Hudson, 9 Id. 176 qb. Lawrence v. Stephens, 3 Dowl. 777, 1 Gale, 164. Doe d. Overseers of Llandesilio v. Roe, 4 Dowl. 222. Jenkins v. Treloar, Id. 690. Roy v. Bristow, 2 Mees. & W. 241. James v. Bourne, 4 Bing. N. C. 420. Weeton v. Woodcock, 7 Id. 384. Thornton v. Whitehead, 1 Mees. & W. 14. Vaughan v. Glenn, 5 Id. 577. Cholmondeley v. Payne, 3 Bing. N. C. 708. The application to strike out counts must be made to a judge at chambers, in the first instance, Ward v. Graystock, 4 Dowl. 717, unless some intricate point of law be involved in it, such as to warrant an application to the court. See Ov. of Llandesilio v. Roe, supra.

Also, where the declaration contained 98 counts, upon as many notes of a country banker, of 17. each, the court upon application struck them all out but one and a count upon an account stated, the defendant consenting that the other notes might be given in evidence under the count upon an account stated, and consenting also not to bring a writ of error. Carmach v. Gundry, 3 B. & A. 272.

1. When to declare.

No declaration can be delivered or filed "between the 10th day of August and the 24th day of October;" 2 W. 4, c. 39, s. 11; but it may at any other period of the year. On the other hand, by R. G. H. 2 W. 4, s. 35, a plaintiff shall be deemed out of court, unless he declare within one year after the process is returnable." And process, I think, would be deemed to be returnable within the meaning of this rule, on the day on which it is served.

Formerly a plaintiff might declare de bene esse, (that is, conditionally until bail perfected or appearance entered,) in all personal actions, bailable or nonbailable, at any time after the return of the writ, and before time for putting in bail or for entering a common appearance had expired. But the Uniformity of Process Act, 2 W. 4, c. 39, by appointing eight days from the execution of the capias or service of the writ of summons, as the time for putting in bail and appearing to