ment of the said O. P. deceased; with this, that the said plaintiff will verify that the said G. H. is deceased, and that he the plaintiff is the surviving executor of the last will and testament of the said E. F. and hath the execution thereof, &c.

17. Against an Executor; or Husband and Wife, Executrix.

Adopt the common form, ante, 1, Form 1, describing defendant "executor" &c. ut supra; or against husband and wife, executrix, state "C. D. and J. his wife, executrix of the last will and testament of O. P. deceased, who have been summoned," [&c.

*18. Declaration against Hundredors. (1)

Use the common Form, No. 1, ante, 1, describing the defendants thus :"The men inhabiting within the hundred of - —, in the county of

19. Declaration by a Husband and Wife.

In the

The

day of

A. D.

(venue). A. B. and J. his wife, by E. F. their attorney, [or “in their own proper persons,"] complain, [&c. as usual; conclude] to the damage of the plaintiffs of £, and therefore they bring their suit, &c.

20. Against Husband and Wife.

[As in the common form, ante, 1, 6, 7, describing defendants as "C. D. and J. his wife."

21. Declaration by an Infant.

In the

On the

day of

—, A. D. ————

(venue). A. B. by E. F., who is admitted by the Court of our Lord the King here to prosecute for the said A. B., who is an infant within the age of twenty-one years, as the next friend of the said A. B., complains [&c. proceed and conclude as usual.

22. Against an Infant.

The form is precisely as usual, ante, 1, 6, 7, not noticing the infancy.

(1) See 2 Chit. Arch. 709; 1 Chit. Gen. Pr. 581.

In the

23. Declaration by an Informer.

On the

day of

(venue) to wit. A. B., who sues as well for our Lord the King [or "for the poor of the parish of in the county of "] as for himself, in this behalf, by E. F. his attorney, [or "in his own proper person,"] complains, [&c. proceed as usual, see ante, 1, Form 1, and conclude, omitting the usual words "to the damage of the plaintiff of £," thus:] and therefore the plaintiff, who sues as aforesaid, brings his suit, &c.

24. Declaration against Peers and Members of Parliament. [The declaration is in the usual form, see ante, 1, Form 1. The title of the Peer should be stated. The M. P. need not be so styled. The Uniformity of Process Act, 2 W. 4, c. 39, s. 1, abolishes the privilege of peers and members of parliament to be sued by original or bill. They are to be sued by writ of summons in the ordinary form, but cannot be arrested; see 2 Chit. †Arch. 4th ed. 705. As to proceedings against an M. P. subject to the Bankrupt Laws, see 6 G. 4, c. 16, ss. 9, 10; 2 W. 4, c. 39, s. 9; T. Chitty's Forms, 2d ed. 571; 2 Chit. Arch. 4th ed. 706.]

25. Form of Declaration by or against a surviving Plaintiff or Defendant, where the Death occurred before Writ issued.

In this case the commencement and conclusion of the declaration will be in the common form, see ante, 1, Form 1. As to the body of the declaration, see Forms in Assumpsit.

26. Commencement of Declaration where one of the Plaintiffs died after the issuing of the Writ.

In the

On the

day of —, A. D.

(venue). A. B. by E. F. his attorney, complains of C. D. who has been summoned to answer the said A. B. and one E. F. who died after the issuing of the writ of summons, at the suit of the said A. B. and the said E. F. in his life-time, in this cause, to wit, on [&c.], which the said C. D. doth not deny, in an action on promises, [or as the case may be, see Form 1, ante, 1.] For that whereas [proceed as in the forms at the suit of a surviving creditor, &c. post.

27. The like, where one of the Defendants died after the issuing of the Writ.

In the

On the

day of

(venue). A. B. by E. F. his attorney, complains of C. D. who has

VOL. I.

3

[+16]

been summoned to answer the said A. B. by virtue of a writ issued in this cause on [&c.] against the said C. D. and one G. H. who died after the issuing of the said writ, to wit, on [&c.] in an action on promises, &c.

4. IN ACTIONS IN INFERIOR COURTS.

1. Commencements, &c. of Declarations in the Palace Court..

In the Palace Court.

The

day of

A. D.,

Palace Court to wit. A. B. by E. F. his attorney, complains of C. D. in an action on promises, [or as the plea may be, see ante, 2, Form 1.] For that whereas [proceed as in declarations in the superior Courts at Westminster, but every material fact must be stated to have occurred within the jurisdiction of the Court. (a) The new rules on Pleading apply to this Court.] to the damage tof the plaintiff of £, and therefore he brings his suit, &c. And the plaintiff avers that he is not, nor is the defendant, nor was either of them, at the time of levying the plaint of the plaintiff here in Court, of the King's household.

2. Commencement, &c. of a Declaration in the County Court. In the County Court of the County of

The

[the county] to wit. A. B. by E. F. his attorney, complains of C. D. in an action on promises, [or as the case may be, see Form 1, ante, 2.] For that whereas [Sc. proceed as usual, but each material fact must be stated to have taken place within the jurisdiction of the Court, see suprà; conclude] to the plaintiff's damage of £, and therefore he brings his suit, &c.

3. The like, where the Action was commenced by Justicies.

In the County Court of

The day of

A. D.

[venue] to wit. C. D. by virtue of his Majesty's writ of justicies, was attached to answer A. B. in an action on promises, [as the case may be,] to the damage of the said A. B. of £- —, and there are pledges to

(a) Thus, in assumpsit for goods sold, &c. it must be alleged, not only that the defendant was indebted and promised "with in the jurisdiction of the said Court," but

also that he "was indebted for goods sold," &c. "within the said jurisdiction." See Trevor v. Wall, 1 T. Ř. 151; Peacock v. Bell, 1 Saund. 73.

prosecute, to wit, John Doe and Richard Roe, and whereupon the said A. B. by E. F. his attorney, complains, for that whereas [&c. as in the writ of justicies to the end, laying each material fact to have occurred within the jurisdiction of the Court, and conclude as follows:] wherefore the said plaintiff saith that he is injured and hath sustained damage to the amount of £, and therefore he brings his suit, &c.

II. PLEAS, REPLICATIONS, &c.

1. PLEAS IN ABATEMENT. (a).

In the K. B. [or "C. P." or "Exchequer of Pleas."]

The said defendant, by his attorney, [or son," (c)] prays judgment of the said writ and declaration, (d) because he says that [&c. stating the ground of abatement, see forms, post, Index, "Abatement," and conclude:] and this the defendant is ready to verify, wherefore he prays judgment (e) of the said writ and declaration, and that the same may be quashed, &c. [or if the plea be "Non-joinder" or "Coverture," see the forms, post. Obtain counsel's sig

nature, and add affidavit of truth, see forms, post, "Assumpsit,"-" Abatement."

2. Replication thereto. (f)

In the

A. B.

V.

The plaintiff saith that his said writ and declaration ought not (g) to be quashed, because he saith that [&c. stating the matter, C. D. and if it be merely in denial, concluding thus:] and this the plaintiff prays may be inquired of by the country, &c. [or, if the replication be not a mere traverse, and contain new matter, conclude,] and this the plaintiff is ready to verify, wherefore he prays judgment (g) and his damages, [&c. conclude as in the case of a replication in bar, post, 23, Form 7; or perhaps the conclusion might be after the verification, with a prayer of judg ment, "whether the said writ and declaration ought to be quashed."

12. PLEAS IN BAR, (a) AND REPLICATIONS, &c.

1. Commencement and Conclusion of a Plea in Bar to the whole Declaration, concluding to the Country.

In the

C. D.

ats.

(b)

The day of

The defendant, by G. H. his attorney, [or "in his own proper person," or if the defendants be husband and wife, "the said C. D. A. B. and J. his wife, by G. H. their attorney, say"; or if the defendant S

(f) If the plea be defective, the plaintiff may demur (generally), and the defendant cannot amend, see supra, note (a); and the plaintiff has costs if he succeed on demurrer, 3 & 4 W. 4, c. 42, s. 34. But if the objection be not clear, the plaintiff should not demur; especially as the judgment, even if in his favor, is not final, but merely a respondeas ouster; 2 Saund. 211, note 3; Tidd, 9th ed. 641, 642. If it be probable that the defendant can establish the truth of his plea in abatement, the plaintiff should enter a cassetur breve, and neither party pays costs thereon; Pr. Reg. 6; Tidd, 9th ed. 683; 2 Ch. Arch. 547, 4th ed. As to the replication, &c. upon a plea of non-joinder, see form and notes, post. The plaintiff recovers final judgment, with damages and costs, if he obtains a verdict upon issue joined on a plea in abatement, Tidd, 9th ed. 641.

(g) This and the prayer of judgment seem proper. The rule as to precludi non and prayer of judgment, applies only to replications to pleas in bar, see post, 20, note (f).

(a) If the plaintiff declare absolutely, the defendant must plead within four days, if the venue be laid in London or Middlesex, and the defendant reside within twenty miles of London; or within eight days, if the venue be laid in any other county, or the defendant reside above twenty miles from London; R. T. 5 & 6 G. 2; and see Holland v. Cooke, 1 M. & Sel. 566; Tidd, 9th ed. 464; and in default of pleading as aforesaid, the plaintiff may sign judgment for want of a plea; R. T. 5 & 6 G. 2; a notice to plead and rule to plead, and a demand of plea, when necessary, having been given and made, see infra. If the plaintiff declare de bene esse, as he may do upon bailable process, see ante, 2, note (c), the notice must be to plead within four days if the action be laid in London or Middlesex, and the defendant reside within twenty miles of London; or within eight days if the action be laid in any other county, or the defendant live above twenty miles from London; and if the defendant put in bail, and do not plead within the time herein limited, plaintiff may sign judgment for