against him during the term, and discharged the rule. Milles v. Andrews ad. 5 Term Rep. 634. The plaintiff having sued out a writ qui tam, and de- Must declare clared in his own name only, the proceedings were set in the original aside; and the court said, he must declare in the original action before declaration by action, before he can declare by the bye, and he cannot the bye. convert one species of action into another, in the first instance. Delves qui tam v. Strange, 6 Term Rep. 158. The delivery or filing of a declaration before special What is a bail is put in, is a waiver of the bail; unless the same is waiver of bail delivered or filed de bene esse; and if the bail have not justified, is an acceptance of them, unless delivered de bene esse. N. on R. M. 10 Geo. 2. Reg. 2. (b). If an original be sued out in one county, and the de- What disclaration laid in another, though it be good against the charges bail by original. defendant, yet the bail are discharged, and not liable to a sci. fa. otherwise if by bill. 3 Lev. 235. 245. So if plaintiff declare contrary to the ac etiam in the writ. Ibid. N. on R. E. 2 Geo. 2. (a). Within what Time to declare. clare. The plaintiff must declare before the end of the term Within what next after the return of the process, or the defendant may time to design a nonpros (except in replevin) without entering any rule to declare, and the defendant shall have costs taxed vide pitouse as usual, 13 Car. 2. c. 2. s. 5. and no rule to declare need be given in this court; either by bill or original. "Page 27 The rule to declare in replevin may be served on any When rule to day before the time the rule is expired, and the plaintiff declare may must declare within four days after such service. Ed- be served, and wards v. Dunch, 11 East. 183. a when plaintiff in replevin. 12 months to Mr. Justice Buller. By the general rules of law, plaintiff must declare against a defendant within twelve months after the return of the writ. But by the rules of the court, if he do not deliver his declaration within two fendant do not terms, the defendant may sign judgment of nonpros. sign a nonThough unless he take such advantage of the plaintiff's pros. neglect, the plaintiff may still deliver a declaration within the year. 2 Term Rep. 112. Horley v. Lee. 3 Term Rep. 123. Perry v. Harvey. The defendant cannot sign a nonpros unless he enter his appearance within the term the writ is returnable. Cas. temp. Hard. 138. 2 Term Rep. 719. And such Until what dant cannot Time to de obtained. appearance may be entered at any time before the first day in the next full term. An appearance entered after the essoign day and before the first day of full term, may be entered as of the preceding term; and a nonpros entered after the second term, for want of declaring before the end of such term, is good. Prigmore v. Bradley, 6 East. 314. Of obtaining Time to declare. To prevent a nonpros being signed, the plaintiff may clare may be get a side-bar rule from the clerk of the rules, if the defendant is not in custody, the last day of the second term, for time to declare until the first day of the next term, for which pay 6s. 6d. serve defendant's attorney with a copy, or stick a copy up in the office if he does not appear: And he may have as many rules as he likes from term to term, but there must be two in a term, viz. one from the first day of the term, to the last day, and the other from the last day, to the first day of the next term. But the defendant having appeared by an attorney, may if he thinks proper, move the court, that the last rule may be peremptory, which is done by giving counsel instructions, on a brief for that purpose, with 10s. 6d. annexing an office-copy of the last rule to declare; draw up rule at the clerk of the rules, serve copy on plaintiff's attorney. to declare. Prisoner. The rule in this court is absolute, in the first instance, and drawn up on a motion, paper signed by counsel, and is as follows: V. Rule for time A. B. It is ordered, that the plaintiff have time (or further time) to declare until the first day, incluC. D. sive of the next term (or the last day, inclusive of the present term) if the defendant be not in custody. This rule cannot be had where the defendant is a prisoner. But if the writ be against two others as well as the prisoner, and the two cannot be found, the court will grant rules for time to declare against the prisoner, until the other two be outlawed, upon affidavit that you are proceeding to outlawry with all due diligence and motion for that purpose, the rule is absolute in the first instance. Notice of Declaration. In all notices, care is to be taken that the cause be pro- of the notice. perly named, as well as the court in which the suit is instituted; and in notices of declaration, the nature of the action is to be expressed, and at whose suit prosecuted, and the time limited to plead such declaration. And that in case the defendant do not plead by such limited time, judgment will be signed against him by default. R. T. 1 Geo. 2. and to be directed to the defendant. In Ifa declaracase the declaration be filed, and notice thereof given to tion be filed, the defendant or his attorney; it is deemed to be a good given, it is declaration from the time such notice was delivered, in good from the which respect there is no distinction between a declara- time of notice, tion in chief, and a declaration de bene esse. Hutchinson and no distincv. Brown, 7 Term Rep. 298. tion, &c. and notice It will be irregular to file a declaration in the office, Not to be when the defendant's place of residence is known, with- filed without out a notice is given to him. Oldham v. Burrel, 7 Term notice. Rep. 26. Serving notice of declaration filed, together with the Notice of the writ at the same time is irregular. 12 East, 116. Stuart declaration v. Lund. cannot be given with the writ. The notice must not be served on a Sunday. 8 East. Cannot serve 347. Roberts v. Monkhouse. Where a declaration was filed in the office, before the defendant's appearance, was indorsed, "filed conditionally," and judgment afterwards signed for want of a plea, the court held it regular, though the notice served on the defendant, was of a declaration generally. 8 T. R. 77. In the King's Bench. A. B. plaintiff, C. D. defendant. notice on bene esse, Take notice, that a declaration was this day filed with Notice of dethe clerk of the declarations in the King's Bench office in claration de the Inner Temple, London, conditionally (until special bail where the acis put in and perfected,) as of this present term, tion is bailagainst you, at the suit of the above-named plaintiff, in able. an action of trespass on the case on several promises, to the plaintiff's damage of and unless you plead a If in the thereto in four days a from the date hereof, judgment country, eight will be signed against you by default. Dated this days. cess, where day of 1817. Yours, &c. R. S. attorney for plaintiff. To Mr. C. D. the above-named defendant. Take notice, that a declaration was this day filed with the clerk of the declarations, in the King's Bench office, in the Inner Temple, London, conditionally, (until common bail is filed), as of this present Trinity term against you, at the suit of the above-named plaintiff, in an action of trespass on the case on several promises, to the plaintiff's damage of T. and unless you appear and plead thereto, in eight days from the date hereof, judgment will be signed against you by default. Dated this day of 1817. Yours, &c. R. S. attorney for plaintiff. To Mr. C. D. the above defendant. In the King's Bench A. B. plaintiff, and C. D. defendant. The like upon Take notice, that a declaration was this day filed common pro- with the clerk of the declarations, in the King's Bench office, in the Inner Temple, London, as of this present bail or appear- Trinity term, against you, at the suit of the above-named ance is filed, plaintiff, in an action of trespass on the case on several according to the statute. promises, to the plaintiff's damage of 1. and unless you plead thereto in four days a from the date hereof, judgment country, eight will be signed against you by default. Dated this day of • If in the days. If filed of 1817. Yours, &c. J. S. attorney for the plaintiff. To Mr. C. D. the above defendant. This notice will do where bail is perfected: or for a declaration filed by the bye, only say" filed by the bye.” If the declaration be delivered of Trinity, to plead in another term. Michaelmas, then say, unless you plead thereto within the first four days of next Michaelmas term, judgment will be signed against you by default. How to indorse Declaration. When a declaration is delivered to the attorney for Usual to inthe defendant, it is regular to indorse on it the time for dorse declaradefendant to plead thereto. Therefore if the declaration tion. be delivered de bene esse or filed, it should be indorsed, as thus. This declaration is delivered (or filed, as the case may be) de bene esse, and the defendant is to plead hereto in four days (or eight days in a country cause) otherwise judgment. If delivered de bene esse bailable or not. This declaration is delivered by the bye, and the de- By the bye fendant is to plead hereto in four days, otherwise judgment. The defendant is to plead hereto in four days (or eight If in chief. days, as the case may require) otherwise judgment. The defendant is to plead hereto within the first four If with an imdays of next term, otherwise judgment. of intituling and laying the Days in Declaration. It is usual, when the cause of action will admit of it, to entitle the declaration generally of the term in which the writ is returnable; but it should always be intituled after the time when the cause of action is stated to have accrued: therefore where the cause of action is stated to have accrued after the first day of the term in which the writ is returnable, the declaration should be intituled of a subsequent day in that term, (a) and not of the term generally; for a general title refers to the first day of the term; upon such a title it would appear, that the action was commenced before the cause of it accrued. Yet where the cause of action was stated to have accrued on the first day of term, the court on demurrer held, that the declaration might be intituled of the term generally, for the delivery of the declaration is the act of the party; and in ancient times, when the practice was to declare ore tenus, it could not have been delivered till the sitting of the court; so that the cause of action might well have accrued, before the actual delivery of the declaration. Pugh parlance. v. Robinson, 1 Term Rep. 116. Vide 2 Lev. 176. Where If improperly (a) As Saturday next after the morrow of All Souls in Michaelmas term in the 57th year, &c. intituled. |