against prisoners in the custody of the marshal of the marshalsea, Time for pleador of the warden of the Fleet, or of the sheriff, the defendant shall ing to declarations against priplead to the declaration at the same time, in the same manner, and soners. under the same rules, as in actions against defendants who are not in custody." may General object of uniformity of process act. Judges autho rules for its exe rized to make The general object of the provisions of the statute 2 W. IV. C. 39, which have been detailed in this and the four preceding chapters, seem to have been, by making the process uniform in all the courts, to simplify the proceedings in personal actions, and thereby to render them less embarrassing to the student and practitioner, and prevent unnecessary delay and expense to the parties: And, with a view to the accomplishment of these objects, there is a clause in the statute a, by which it ́is enacted, that "it shall and cution. "be lawful to and for the judges of his majesty's superior courts. "of law at Westminster, and they are required, from time to time, "to make all such general rules and orders, for the effectual exe"cution of that act, and of the intention and object thereof, and "for fixing the costs to be allowed for and in respect of the mat"ters therein contained, and the performance thereof, as in their "judgment shall be deemed necessary, or proper; and for that "purpose to meet, as soon as conveniently may be, after the passing "thereof." In pursuance of the above statute, some general rules were agreed upon by the judges, and promulgated on the first day of Michaelmas term 1832, and have since been made by them, which are incorporated in the above chapters, and will be found in the Appendix. Rules made by them, in pursu ance thereof. CHAP. XVI. Writs for removing suits from inferior courts, into C. P. at Lancaster, how returnable. Uniformity of process act does not extend to inferior courts. Of the REMOVAL of CAUSES from INFERIOR COURts. per By the statute 1 W. IV. c. 7. § 9, for the more speedy judgment 66 The uniformity of process acta does not, we have seen ", extend to any cause removed into either of the superior courts of law at Westminster, by writ of pone, certiorari, recordari facias loquelam, habeas corpus, or otherwise. The proceedings therefore, in actions of replevin, and other personal actions, commenced in inferior courts, and removed from thence into superior ones, are not af fected by that act : And if a plaint be levied in an inferior court CHAP. XVI. in due time, and then it be removed into the King's Bench by habeas corpus, and the plaintiff declare there de novo, and the defendant plead the statute of limitations, the plaintiff may reply, and shew the plaint in the inferior court, and that will be sufficient to avoid the statute b. a Ante, 62, 3. b Matthews v. Philips, 2 Salk. 424. Ante, 51. CHAP. XVII. Of the DECLARATION. what. THE declaration is a specification, in legal form, of the circumstances Declaration, which constitute the cause of action; and it is either in chief, or by the bye. When the defendant has entered an appearance, or the In chief. 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 By the bye. 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 process b. It was also a settled point, that when bail was filed by the defendant, upon a bill of Middlesex, or latitat, &c., any other person, besides the plaintiff, might have declared against him by the bye, at any time during the term wherein the process &c. 1 Sup. thereto, 97. 2 Sup. thereto, 43, 4. 3 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, bR. M. 10 Geo. II. reg. 1. (b.) K. B. but see Gilb. K. B. 310. CH. XVII. was returnable, sedente curiá 2. 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 term ; 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 e; 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 h, 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. Time to declare. 1 The plaintiff should regularly declare in chief, before the end of the next term after the appearance of the defendant; or, if he do not appear, before the end of the next term after the eighth day inclusive from the execution of the writ: And, by a late rule of all the courts m, 66 a plaintiff shall be deemed out of court, unless he a Dennis v. Mannaring, Poph. 145. f Dax Excheq. 1 Ed. 53. declare within one year after the process is returnable." In an Сí. XVII. action, therefore, for a malicious arrest, proof that no declaration was filed or delivered within a year after the return of the writ, has been deemed sufficient to shew a determination of the suit a. declare. If the plaintiff be not ready to declare in due time, he may ob- Rule for time to tain a side bar or treasury rule from the clerk of the rules in the King's Bench, or one of the secondaries in the Common Pleas c, for time to declare until the first day of the ensuing term; 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. In the In Exchequer. Exchequer of Pleas, the mode of obtaining time to declare was formerly by summons and order of a barone; and the time given was in the discretion of the baron making the order, regulated by the cause of action, and circumstances of the casef: But, by a late 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 fur- Rule for ther time to declare, from the beginning to the end of the term, and from the end of one term to the beginning of another, alternately, as often as may be necessary; but, after several rules have Peremptory rule been obtained, the courts will make a peremptory one, for the plaintiff to declare before the end of the term in which the motion is made. The rule for this purpose, in the King's Bench, was absolute in the first instance 1; and drawn up on a motion paper signed by counsel: In the Common Pleas, it was formerly a rule to shew causek: But, by a late rule of all the courts, "a rule to declare Absolute in peremptorily may be absolute in the first instance." further time. to declare. first instance. mencement of declaration. The mode of entitling declarations is settled by a general rule Title, and comof all the courts ", by which it is ordered, that " every declaration shall in future be entitled in the proper court, and of the day of the |