If the defen dant be sued the real name of the defendant, with the addition of "having been arrested by the name of John." After a writ sued out and common bail filed against a defendant by the name of J. it is irregular for the plainby the name of tiff to declare against him by the name of R. sued by the J. it is irregu- name of J. and the defendant may set aside the proceedings before plea. 10 East. 328. Delanoy v. Cannon. lar to declare against him by name of R. Common bail Common bail must be filed for defendant where you enter up judgment on a warrant of attorney, on pain of on warrant of 10s. to the box. Hil. 1 W. & M. And a memorandum or warrant is to be filed on a 5s. stamp with the clerk of the common bails, previous to entering the judgment. 19. Vide Judgment on Warrant of Attorney. attorney. Defendant in sane. A peer or member, Sect. The court will not discharge defendant out of custody on filing common bail, on the ground that he was insane at the time of the arrest. Nutt v. Verney et al. 4 Term Rep. 121.: but will, if defendant becomes a peer, exonerate the bail, Trinder v. Shirley, Dougl. 45. or member of parliament, pending the suit. Langridge one, &c. v. Flood, H. 26 Geo. 3. Or order common bail, if special bail be not filed. Formerly ve fused. Application for security SECURITY FOR COSTS. IT scems that a motion has often been made for securing to the defendant the costs, in case he succeeds in his action. This the court refused in the late reign, unless in actions qui tam, &c. giving as a reason that it would affect trade, and be excluding foreigners from obtaining justice in our courts. Lamii v. Sewell, 1 Wils. 266. Str. 126. 2 Str. 1206. 4 Burr. 2605. Boswell v. Irish, Cowp. Rep. 158. The court will not grant a rule, that the plaintiff may give security for costs, unless application has been made must be made to him to give security. Bass v. Clive, 3 Maule and Selw. 283. first to plaintiff prior to motion. In ejectment. Lessor of The cases in ejectment are considered as more under the power of the court than other proceedings, and there fore the court has stayed a second, till the costs were paid of the first. Real & al. v. Macay, Str. 1206. Lessor of plaintiff an infant, or abroad, shall name a plaintiff an in- good plaintiff, or give security for costs. 1 Wils. 130. Ano iant. nymous. A similar undertaking is also required in an action for Mesne prothe mesne profits, brought in the name of the nominal fits. plaintiff, in ejectment. vexatious. If a second action appear, and all the circumstances of If a second the case, to be vexatious, the court will order the proceed- action appear ings to be stayed, until the costs of the former one are paid. Melchar v. Halsey, Say. Law of Costs, 247. Gravenar v. Cape, ibid. there cited by De Grey, C. J. In an action by husband and wife, the court stayed Action by husthe proceedings until the payment of costs in a former band and wife. action at the suit of the husband only, it being for the same demand. Lampley et ux. v. Sands, H. 25 Geo. 3. K. B. Lessor of plaintiff residing in Ireland, shall give secu- Lessor residrity for costs, though ejectment is brought by the direc- ing in Ireland. tion of Chancery, where security is already given. Denn v. Fulford, 2 Burr, 1177. It seems now, that this rule will be granted in all ac- Now granted. tions brought by foreigners; and for this reason, that if a verdict be given against the plaintiff, he is not within the reach of our law, so as to have process served upon him for the costs. Pray and others v. Edie, 1 Term Rep. 267. If an Englishman sue in a foreign court, he must give If an Englishsecurity for costs; and therefore a like rule was made man sue in against the plaintiff, who resided at Waterford in Ireland. foreign court. Fitzgerald v. Whitmore, 1 Term Rep. 362. But this Refused after motion was refused, after notice of trial given, as de- notice of trial fendant might have applied earlier, after knowledge of the fact of the plaintiff's residence, and before so much of the costs were incurred. Walker v. Trythall, 5 East. 338. See 6 Term Rep. 597. contra. The court said, this was the better rule. given, A mere temporary absence of the plaintiff, by his go- Temporary ing abroad, is no ground for requiring security for costs. absence. R. E. 40 Geo. 3. Anon. The court have decided that bail be put in previous to Bail before the motion, for the defendant not being in court, he is motion, not in a situation to make the application. De la Preve v. Duc de Biron, 4 Term Rep. 697. E. 32 Geo. 3. The proceeding will not be stayed in a qui tam action, Qui tam acmerely on account of the plaintiff's poverty. Cowp. tion. Rep. 24. In the case of Doe ex dem. of Selby v. Ashton, baro- Infant, net, Mr. Justice Buller said, there are only three instances Residence abroad. ment. in which the court will interfere on behalf of the defendant, to oblige the plaintiff to give security for costs; the first is, when an infant sues, the court will oblige the prochein amy, or guardian, or attorney, to give security for the costs.-Secondly, Where the plaintiff resides abroad; in which case the court will stay the proceedFormer eject-ings till security is given for the costs; and,-Thirdly, Where there has been a former ejectment; but there the rule is to stay the proceedings in the second ejectment, till the costs of the former are paid, and not till security is given for the costs of the second. 1 Term Rep. 491. Proceedings Proceedings in ejectment were stayed till the costs of a staid in former former ejectment brought by the father of the lessor of ejectment plaintiff in 1772, against the defendant's father on the brought by the father. same title were paid. Doe dem. Feldon v. Roe, 8 T. R. 645. In the case of Fairclaim v. Thrustout, E. 24 Geo. The reason. 3. cited, Lord Mansfield said, that the court had arrived by degrees to this practice. It was adopted to prevent the hardship of frequent ejectments on the same title, and was the more reasonable; as in real actions, all representatives of the party were concluded for ever, from setting up the same title. Ejectment and action for mesne profits. When bankrupt to give security, and when not. Lessor of full age. If one of two Proceedings in ejectment were staid, until the costs of a former ejectment, and also of an action for the mesne profits were paid. Doe ex dem. Finchard v. Roe, 4 East. 585. An uncertificated bankrupt, bringing an action for the benefit of his assignees, was required to give security for costs, in case he should fail in the suit. 7 Term Rep. 296. Webb v. Ward. But it is otherwise where the action is brought for his own benefit, as for the produce of his earnings since his bankruptcy. 1 East. 431. If lessor is known, of full age, and resident in the country, court will not order him to give security. If a foreigner sue two defendants, and only one of defendants put them puts in bail, that one may require the plaintiff to in bail, and plaintiff a fo- give security for costs, without putting in bail for the reigner. other. Carr v. Shaw and another, 6 Term Rep. 496. This mode of application may be made by motion or summons, and it is referred to the master to take the security. To be made by motion or summons. In the King's Bench. to-morrow (or on Take notice, that this honourable court will be moved can be heard, for a rule to shew G. H. defendant's attorney. Of calling for Plaintiff's Residence. till security be given for costs. a 697, 705. In ejectment and actions qui tama, where the plaintiff, Str. 681, or his lessor, is unknown to defendant, the latter may call for an account of his residence, or place of abode, from the opposite attorney by motion or summons, and if he refuse to give it, or give in a fictitious account of a person who cannot be found, the court will stay the proceedings until security be given for the costs. OF THE DECLARATION. THE declaration is a legal specification of the circum- Definition of. stances which constitute the cause of action, and in actions by original, is the exposition of the writ, with the addition of time, place and other circumstances, Co. Litt. 303. But if the proceeding be by bill, then the declaration is a mere copy of it, and in either case, it should correspond with the process, in the names and descriptions of the parties. The use, nature, and design of pleading is only to Its use and render the fact plain and intelligible, and to bring the design. matter to judgment with a convenient certainty; and in the time of Ed. 1. the pleadings were short, plain, and simple, ever having respect to matter and not to form of words. 1 Inst. 304. H. H. C. L. 172. With respect to the unnecessary length of declarations, Unnecessary by rule, M. 1654. Sec. 12. That upon actions on the stat, length of de of hue and cry, monopolies, or for a suit in the Admirally, clarations. and such like, other than debt, the declaration is not to repeat the original writ, so in personal actions, but only the nature of the action; in covenant not to repeat more Covenant. of the deed, than necessary for the assignment of the breach. In slander, long preambles be forborne, and no Slander. more inducement than necessary to maintain the action, unless a special inducement is required, or colloquium. In debt upon 2 Ed. 6. for Tithes, and 32 H. 8. c. 21. Debt for tithes, &c. Judgments. In case there be several counts. Jac. 1. for maintenance, or on general statutes, on the declaration not to repeat the statute, but to conclude contra formam statuti. În debt upon judgments had at Westminster, to recite only the judgment: but if had by or against an executor or administrator then debt upon that judgment, to repeat the declaration, and judgment. Sect. 13. Of striking out unnecessary Counts. If it appear on the face of the declaration, or by refer ence to the bill of particulars, that some of the counts are superfluous, the court will order them to be expunged; and if there be any vexation, will make the plaintiff pay the costs of the application.(a) If there are several counts in a declaration, and pre cisely the same, or only a formal difference between them, and the same evidence will support each, as if the plaintiff declare specially and generally, for a matter that may be given in evidence upon a general count, the court will expunge the general counts. Cas. temp. Hard. 129. So if by reference to the bill of particulars (which de fendant may now have,) they will expunge such counts as are unnecessary. Reference in The usual mode is to refer it to the master in the first first instance. instance, and the court will on motion for his report, decide. And Lord Hardwicke, in Wilkins v. Perry, said, (on a motion to refer the declaration,) as you have ob tained time to plead without applying to the court to have the counts struck out or referred to the master, which is the usual way, the rule must be discharged. Rep. temp. Hard. 129. What a decla ration in cove In an action against the sheriff, for taking goods withnant need not out leaving a year's rent, the declaration need not state all the particulars of the demise; but if it does, and they are not all proved as stated, there the plaintiff shall be nonsuit. Bristow v. Wright, Dougl. 664. state. If it contain indecent ianguage. Where the declaration unnecessarily contains indecent language, the court, it seems, will order it to be referred for scandal and impertinent language, and direct the (a) The motion should be made before time obtained, Rep. temp. Hard. 129. A summons in vacation will do. |