CHAP. XVII.

Declaration,

how treated of.

What.

In chief.

By the bye.

Of the DECLARATION.

IN the present Chapter, it is intended to treat of the declaration,

and manner in which it is affected by the uniformity of process act a; with the alterations which have been made therein, by rules of court, and judicial decisions. These alterations principally relate to the time and mode of declaring, and the consequences of not declaring in due time; and may be classed under the following heads: 1. the time for declaring, absolutely or de bene esse, and mode of obtaining further time; 2. the title of the declaration; 3. the venue; 4. the commencement of the declaration; 5. its correspondence with the process; 6. the form of declaring on bills, or notes, &c. ; 7. when several counts are prohibited, or allowed; 8. the conclusion of the declaration; 9. when it is delivered or filed, absolutely or de bene esse; 10. the judgment of non pros for not declaring; and lastly, as incident thereto, the rule to declare, and demand of declaration.

The declaration is a specification, in legal form, of the circumstances which constitute the cause of action; and it is either in chief, or by the bye b. When the defendant has entered an appearance, or the plaintiff has appeared for him, on serviceable process, or special bail has been put in and perfected on bailable process, the plaintiff may declare against him in chief, and proceed thereon to judgment and execution.

In the King's Bench, when the defendant had appeared and filed bail, upon a bill of Middlesex, or latitat, &c. or the plaintiff had filed it for him according to the statute, the plaintiff might formerly have declared by the bye, in as many different actions as he thought fit, at any time before the end of the term after the return of the proIt was also a settled point, that when bail was filed by the defendant, upon a bill of Middlesex, or latitat, &c. any other person,

cess c.

a 2 W. IV. c. 39.; and as to the declaration in general, see Tidd Prac. 9 Ed. 419, &c.

As to declarations in chief, and by the bye, and the time and mode of declaring

absolutely, or de bene esse, see Tidd Prac. 9 Ed. Chap. XVII. p. 419, &c.

R. M. 10 Geo. II. reg. 1. (b.) K. B. but see Gilb. K. B. 310.

besides the plaintiff, might have declared against him by the bye, at any time during the term wherein the process was returnable, sedente curia. In actions by original in the King's Bench, the practice of declaring by the bye was similar to that in the Common Pleas ; where the same plaintiff was allowed to declare against the defendant by the bye, in as many different actions as he might think fit, at any time before the end of the next term after the return of the process: But he could not have declared by the bye, after the end of that terms; nor could any other person have declared by the bye, except the plaintiff. In the Exchequer of Pleas, the plaintiff was allowed to declare by the bye, at any time during the term in which the process was returnable; or, as it seems, before the end of the term next after that in which the process was returnable; but no person could declare by the bye, except the original plaintiffs. As it is declared, however, by the uniformity of process act, that the writs thereinbefore authorized shall be the only writs for the commencement of personal actions, in any of the courts therein mentioned, in the cases to which such writs are applicable, and as the proceedings under that act may, generally speaking, be had in vacation, as well as in term time, it has been doubted, whether the practice of declaring by the bye is not altogether abolished. But it seems that the same plaintiff may, after the defendant has appeared, declare against him by the bye, for a different cause of action from what is expressed in the process; though it is generally agreed, that no other person, except the plaintiff, can declare by the bye.

The plaintiff was formerly allowed to declare absolutely against the defendant after appearance, at any time before the end of the next term after the return of the process m. And, in order to expedite the cause, it was formerly usual, in the King's Bench", and Exche

a Dennis v. Mannaring, Poph. 145. Jones (or Bands) v. Bodinner, Carth. 377. 1 Salk. 2. S. C. Gilb. K. B. 310. 342. Sulyard v. Harris, 4 Bur. 2181. Smith v. Muller, 3 Durnf. & E. 627.

b Wreeke v. Robbins, Pr. Reg. 142.
Dunn v. Hutt, Barnes, 346.
Methwin v. Pople, Cas. Pr. C. P. 6.
Man. Ex. Pr. 181, 2.

f Dax Excheq. 1 Ed. 53.

Man. Ex. Pr. 182. Griffith v. Humphreys, 3 Younge & J. 218; and see Tidd Prac. 9 Ed. 419. 424, 5.

h 2 W. IV. c. 39. § 21.
Ante, 59.

Sup. to Petersd. Pr. 20. 1 Chit.
Archb. Pr. 180. 4 Nev. & M. 877. (a.)
1 Sed quære; and see Athert. Pr. 89,
90. 102, &c.

m Tidd Prac. 9 Ed. 422, &c.

" Brook v. Bennett, 3 Smith, R. 432. Steward v. Lund, 12 East, 116. M'Quoick v. Davis, 2 Chit. R. 164. Hill v. Parker, id. 165. Bell v. Vincent, 7 Dowl. & R. 233.

Time formerly

allowed to declare, absolutely, or de bene esse.

Time now allowed, on ser

viceable process.

quera, to serve the process on the return day, and to file the decla-
ration de bene esse,
and give notice thereof to the defendant, on the
same day; and, in the Common Pleas, notice of the declaration be-
ing so filed might have been given on the return day of the writ, at
the time of serving it. But this practice having been productive
of great inconvenience, by subjecting the defendant to the payment
of unnecessary costs, if he were inclined to settle the action in the
first instance, a general rule was made in all the courts, that "no
declaration de bene esse should be delivered 4, until the expiration of
six days from the service of the process, in the case of process which
is not bailable, or until the expiration of six days from the time of
the arrest, in case of bailable process; and such six days shall be
reckoned inclusive of the day of such service or arrest;
" which rule
applied to declarations filed, as well as delivered, de bene essee. And as
this rule might have enabled a defendant, when served with process,
or arrested within six days of the end of an issuable term, to prevent
the plaintiff from declaring, so as to have a plea of the term, and
proceed to trial at the next assizes, it was ordered, by a subsequent
rule, that "in Hilary and Trinity terms, a plaintiff, in any country
cause, might file or deliver a declaration de bene esse, within four days
after the end of the term, as of such term." These rules, however,
were virtually abolished by the uniformity of process acth; and it
is now settled, agreeably to that act, that "when the defendant has en-
tered an appearance, or the plaintiff has appeared for him, on service-
able process, the plaintiff may declare absolutely, (or, as it is some-
times, though improperly, called in chief,) against him, either in
term or vacation, except between the tenth of August and twenty-
fourth of October, at any time before the end of the next term after
the eighth day inclusive, from the service of the writ. And if a
defendant enter an appearance to a writ of summons, before the ex-
piration of the eight days allowed for that purpose, the plaintiff may,

it seems, immediately declare against him; but otherwise, he cannot declare until eight days after the service, inclusive of the day of serving the writ, have expired: if he do, he will not be entitled to the costs of his declaration b. And as the plaintiff may enter an appearance for the defendant, when he has been served with a writ of summons, or a distringas has been executed, there seems to be no occasion for his declaring de bene esse, on serviceable process.

64

When one defendant is arrest

ed, and another served.

Where special bail has been put in and perfected for the defend- On bailable ant, on bailable process, the plaintiff may declare absolutely against process. him, in term or vacation, with the exception before mentioned, at any time before the end of the next term after the execution of the writ. And, by a general rule of all the courts, it is ordered, that upon all writs of capias, where the defendant shall not be in actual custody, the plaintiff, at the expiration of eight days after the execution of the writ, inclusive of the day of such execution, shall be at liberty to declare de bene esse, in case special bail shall not have been perfected: And if there be several defendants, and one or more of them shall have been served only, and not arrested, and the defendant or defendants so served, shall not have entered a common appearance, the plaintiff shall be at liberty to enter a common appearance for him or them, and declare against him or them in chief, and de bene esse against the defendant or defendants who shall have been arrested, and shall not have perfected special bail." If the plaintiff be not ready to declare in due time, he may obtain Rule for time to a side-bar or treasury rule from the clerk of the rules in the King's Benche, or one of the secondaries in the Common Pleas , for time to declare; and, in the Common Pleas, there is no difference in this respect, between a rule for time to declare in replevin, and in other actions 8. In the Exchequer of Pleas, the mode of obtaining time to declare was by summons, and order of a baron; and the time given was in the discretion of the baron making the order, regulated by the cause of action, and circumstances of the case. But, by a general rule of all the courts, "the plaintiff may have a rule for time to declare in the court of Exchequer, as well as in the other courts." If the plaintiff be still unprepared, he may obtain rules for further For further Morris v. Smith, 2 Cromp. M. & R. 314. 1 Gale, 187. 4 Dowl. Rep. 10 Leg. Obs. 414, 15. S. C.

198.

b Fish v. Palmer, 2 Dowl. Rep. 460. 8 Leg. Obs. 301. S. C.

R. M. 3 W. IV. reg. 11. 4 Barn. & Ad. 3, 4. 9 Bing. 446. 1Cromp. & M. 5. d Ante, 204.

Append. to Tidd Prac. 9 Ed. 163.
f Id. ib.

Craven v. Vavasour, 5 Taunt. 35.
Dax, Pr. 1 Ed. 54.

i Price, Pr. 216; and see Tidd Prac.
9 Ed. 423, 4. 484.

R. H. 2 W. IV. reg. I. § 38. 3 Barn. & Ad. 379.8 Bing 293. 2 Cromp. & J. 179.

declare.

time.

time to declare a, which were formerly granted from the beginning to the end of the term, and from the end of one term to the beginning of another, alternately; but are now usually limited to a month", though a longer time may be obtained if necessary. And where one of two defendants is in custody, and the plaintiff is proceeding to outlawry against the other, he may obtain time to declare against the prisoner, by application to the court or a judge, until the outPeremptory rule lawry of the other defendant is perfected d. But, after several rules have been obtained, the courts will make a peremptory one, for the plaintiff to declare. The rule for this purpose, in the King's Bench, was absolute in the first instance ; and drawn up on a motion paper signed by counsel: In the Common Pleas, it was formerly a rule to shew cause f: but, by a general rule of all the courts 8, "a rule to declare peremptorily, may be absolute in the first instance."

to declare.

Plaintiff must declare within a year.

Mr. Justice Buller having expressed an opinion, in the case of Worley v. Lee, that by the general rules of law, a plaintiff must have declared against a defendant within twelve months after the return of the writ, though, by the rules of the court, if he did not deliver a declaration within two terms, the defendant might have signed a judgment of non pros, it was settled, agreeably to that opinion, that unless he took advantage of the plaintiff's neglect, by signing a judgment of non pros, the plaintiff might deliver his declaration, at any time within a year next after the return of the writ1. But, by a general rule of all the courts k," a plaintiff shall be deemed out of court, unless he declare within one year after the process is returnable." And where an action is removed from an inferior court, by writ of habeas corpus, the cause is not out of court, till a year after the return of the writ by which the action is removed'. Therefore, where a party, arrested in a suit commenced in a borough court,

a

290.

C

Append. to Tidd Sup. 1833. p.

Chit. Archb. Pr. 4 Ed. 219.

Richardson v. Pollen, 1 Hodges, 75; and see 3 Chit. Gen. Pr. 447.

d De Lannoy v. Benton, 1 Scott, 386. Append. to Tidd Prac. 9 Ed. Chap. XVII. § 5.

f Id. § 6; and see Tidd Prac. 9 Ed. 424. 487, 8.

R. H. 2 W. IV. reg. 1. § 39. 3 Barn. & Ad. 379. 8 Bing. 293. 2 Cromp. & J. 179.

h2 Durnf. & E, 112.

4.

35.

i Penny v. Harvey, 3 Durnf. & E. 123, Sherson v. Hughes, 5 Durnf. & E.

Parsons v. King, 7 Durnf. & E. 7. but see Barnes v. Geering, 12 Mod. 217. Sykes v. Bauwens, 2 New Rep. C. P. 404. Morton v. Grey, 9 Barn. & C. 544; and see Tidd Prac. 9 Ed. 421. Kirby v. Snowden, 4 Dowl. Rep. 191. 10 Leg. Obs. 382. S. C.

R. H. 2 W. IV. reg. I. § 35. 3 Barn. & Ad. 379. 8 Bing. 293. 2 Cromp. & J. 178.