Endorse ment. In what time. dorsement must be made thereon, and on the copy which is served, expressing that fact.14 The words "de bene esse," endorsed upon the declaration and copy, are sufficient for this purpose. Where the appearance of a defendant is endorsed on bailable process, the plaintiff, at the expiration of the rule to plead, may enter the defendant's default, although the declaration was filed de bene esse.15 Declaring against prisoners.] If a defendant, arrested on a process in which he is required to be held to bail, shall be committed to prison for the want of such bail, it is the duty of the sheriff specially to return upon such process the fact that the defendant is so imprisoned for want of bail.16 And it is further required by statute, that "upon such return being made, the plaintiff shall declare against such defendant, before the end of the term next after such process was returnaHow served. ble, and shall deliver a copy of the said declaration to such prisoner, or to the sheriff or keeper of the jail, in whose custody such prisoner shall be," and that "if such declaration be not served as herein prescribed, the defendant shall be discharged from his imprisonment, and shall be entitled to judgment of discontinuance against the plaintiff.”1 Where attor ney is retained. Service of declaration.] If an attorney appear for the defendant, the service of the declaration, and of the notice of the rule to plead, must be upon such attorney, or his agent, and not on the party.18 If the plaintiff omit to declare for more than a year, the defendant having employed no attorney, the copy of the declaration, and notice of the rule to plead, ought to be served on him personally, or by leaving them at his usual 14 Barnes 257. 302. 15 2 Wendell. Rep. 289. 16 R. St. P. 3. Ch. 6. T. 1. s. 22. Vol. 2. p. 350. 17 Ib. s. 23. p. 350. et vide Rule 12. 18 Rule 19. 2 Johns. Cas. 122. defends in place of abode.19 But in general, where a party other than Where party an attorney of the court defends in person, the service of the person. declaration may be on such party personally, or by putting the same into the post-office, directed to him, at his place of residence.20 And no copy of the declaration, or of any other papers, need be made on a defendant who has not appeared in the cause, except where the defendant is returned imprisoned for want of bail.22 Where notice of retainer is received before the defendant's default in not pleading has been entered, a copy of the declaration, and notice of the rule to plead, (unless they have been served on the defendant personally,) must be served on the attorney retained; and the defendant has twenty days to plead from the time of such service.23 But where a copy of the declaration, and notice of the rule to plead, have been served on the defendant personally, and the plaintiff's attorney afterwards receives notice of retainer from an attorney for the defendant, he need not serve a copy of the declaration, or notice of the rule to plead, de novo, on the defendant's attorney; but the defendant is bound to plead in twenty days from the first notice.24 regarded be filed. The copy of a declaration, or other pleading, cannot be dis- Not to be disregarded on account of the pleading not being filed; but the cause not court will compel this to be done at any time.25 The service of an amended declaration, without a previous rule to amend, is a nullity, and will not prevent the defendant from entering judgment of nonpros.26 If the plaintiff, after having been ruled, do not declare in due time, he is liable to be nonprossed, or have judgment signed against him for not prosecuting his suit. Of this judgment, and the mode of obtaining it, we will speak hereafter. 26 1 Wendell. Rep. 67. CHAPTER V. OF PLEAS AND THE SUBSEQUENT PLEADINGS, AND OF DEMURRERS. TIME TO PLEAD. plead. General rules.] In order to compel the defendant to plead, Rule to within the time allowed by the rules of court, we have seen that the plaintiff must enter a rule for that purpose, and serve him with a notice of such rule, together with a copy of the declaration.1 The rule to plead, and in general every other rule to answer, is a rule of twenty days after service of a notice thereof, and of a copy of the pleading to be answered.2 But the rule to join in demurrer to a plea in abatement, is a rule of four days only; nor can the plaintiff be held to accept a plea in abatement after four days from the day of the service of a notice of the rule to plead, and of a copy of the declaration :* and after judgment of respondeas ouster on a demurrer to a plea in abatement, the defendant has only four days to plead, from the day of the service of the notice of such judgment.1 If special bail be required in the cause, although twenty days Where spe from the service of the notice of the rule to plead may have required. expired, the defendant's default cannot be entered until special bail is put in, or if excepted to, has justified.5 cial bail is Plea not filed. Where oyer is delivered. In bailable actions, a plea in bar, before the bail are perfected, is a nullity, although they afterwards justify, unless it be received de bene esse, and notice of this given to the defendant. The service of a copy of a plea is a compliance with the rule to plead, although the original plea may not have been filed for the attorney is to be governed by the pleadings delivered to him, and is not to search the clerk's office; and when he receives a plea, he must take it for granted that the original is on file." But the plaintiff is not bound to accept an imperfect copy. 8 A rule to plead cannot be entered until after the return day of the capias, although the writ may have been actually returned.9 it.10 In particular cases.] Where oyer has been demanded and given, the defendant has the same time to plead after the deBill of par livery of oyer, that he had had when he demanded it. 10 And so, after service of a bill of particulars, the defendant has the same time to plead that he had when the alternative order was served."1 ticulars. Venue changed. Where the venue is changed, if the rule for pleading has expired, the defendant must plead forthwith to the amended declaration, or, which is equivalent, on the service of a certified copy of the rule to change the venue:12 if the twenty days are not out, he has only the remaining days within which to Where dec- plead. Where the plaintiff amends his declaration, whether, of course under the rule, or on motion to the court, and before or after14 plea, the defendant is entitled to twenty days for pleading after service of a copy of the amended decla laration is amended. 13 |