Declaration thereon. In the King's Bench. Trinity Term, 51 Geo. 3. London (z), (to wit.) C. D. (a) was attached to answer A. B. of a plea of trespass on the case upon promises, and thereupon the said A. B. by his attorney, complains, For that whereas, &c. [State the cause of action precisely as in the Præcipe: if that be defective, the Declaration must, nevertheless, correspond with it, and afterwards a summons may be taken out to amend the Declaration. Conclude as follows:] Conclusion. Wherefore the said A. B. saith, That he is *injured, and hath sustained [*8] damage to the amount of L.-(6), and therefore, he brings his suit, &c. N. B. No pledges are to be added. In the King's Bench. next after Trinity term, 51 Geo. 3d (d). - in Declaration the defend. London, (to wit.) C. D. was attached to answer A. B. in a plea, &c. where one of of trespass on the case upon promises; and thereupon said A. B. by ants has been his attorney, complains, For that whereas the said C. D. and one outlawed (c). E. F. (which said E. F. by due course of law, has been out-lawed at the suit.of the said A. B. in this plea and suit (e), and still remains so outlawed), on, &c. at, &c, were indebted, &c. [State the promises and breach, and conclude as in the last Precedent. Præcipe and [*9] , (to wit): Command C. D. Jate of, merchant, that of justly, and without delay, he render unto A. B. *the sum of L.good and lawful money of Great Britain, which he owes to and (ƒ) unjustly detains from him, as it is said, and unless, &c. (2) This must be the venue in the declaration, ante, 1 vol. 246, 249.. (a) The addition of the defendant need not be stated in the declaration, 3 Bos. & Pul. 395. ‹. to wit, on, &c. the said E. F. was duly out-lawed in the same court here in this suit, as by the record of the said outlawry remaining in the said court in full force more fully appears; and: (b) The same damages as in the hereupon the said A. B. by his attor præcipe. ney aforesaid, complains against the said C, D. in the plea aforesaid, that whereas, &c. (c) This precedent is taken from Impey's Prac. K. B. 7th edition, 599, and see Brownl. Red. 197. Lil. Ent. 20. 1. Brown. 20. The form usually has been as follows, but the above seems more correct-to wit, C. D. and E. F. were attached to answer A. B. of a plea of trespass on the case, &c. and thereupon the said A. B. by G. H. his attorney, comes and gives the Court here to understand and be informed, that since the suing out of the original writ in this cause, and before this day, George the Third, by the Grace of God, of the United Kingdom of The capias Great Britain and Ireland, King, Defender of the Faith, to the Sheriffs thereon. of London, Greeting. We command you, that you take C. D. late of in your county, merchant, if he be found in your bailiwick, and him safely keep, so that you may have his body before us, on wheresoever we shall then be, in England, to answer A. B. of a plea that he render to the said A. B..the sum of L. of good and lawful money of Great Britain which he owes to and (ƒ) unjustly detains from him, as it is said, and have there this writ. Witness, &c. In the King's Bench. Trinity Term, 51 Geo. 3. London, (to wit.) C. D. was summoned to answer A. B. of a plea Declaration thereon (g). that he render unto the said A. B' the sum of L- of good and lawful money of Great Britain which he owes to and (ƒ) unjustly detains from him, and thereupon the said A. B. by - his attorney, com plains, For that whereas, &c. [State the bond, or other debt, or cause of action fully, and conclude as follows:] Wherefore the said A. B. saith that he is injured and hath sustained damage to the amount of L., and therefore he brings his suit, &c. N. B. Omit pledges. (to wit.) Command C. D. ——, late of merchant, Præcipe and venant (h). that justly and without delay he keep with A. B. the covenant made capias in coby him the said C. D. with the said A. B. according to the form and effect of a certain *indenture, (or, "of a certain deed poll," or, "of cettain articles of agreement," or, " of a certain charter-party of affreightment,") made between them as is said, and unless, &c. of [ 10 ] George the Third, by the Grace of God, of the United Kingdom of The capias Great Britain and Ireland, King, Defender of the Faith, to the Sheriff thereon. greeting. We command you, that you take C. D. late of , in your county, merchant, if he be found in your bailiwick, and him safely keep so that you may have his body before,us on above precedent in assumpsit, and ante, 1 vol. 245 to 248. The præcipe and capias in debt do not disclose the par. ticulars of the cause of action, which is not set forth till the plaintiff declares, 2 Saund. Rep. 209, note 1.-Bac. Ab. Actions, C. If the proceeding be by or against an executor, the words, "owes to and" are to be erased. The declaration is as in the Common Pleas, post. (g) See the notes to the declaration in assumpsit, ante 7. (h) As to the præcipe and capias in covenant in general, see the notes to the above precedent in assumpsit, and ante, 1 vol. 245 to 248. The præcipe and capias in covenant do not disclose the particulars of the cause of action which is afterwards stated in the declaration, 2 Saund. Rep. 209. n. 1. Bac. Ab. Actions, C. The declaration is as in the Common Pleas, post. Declaration wheresoever we shall then be, in England, to answer A. B. of a plea Mich. Term, 52 Geo. 3. London, (to wit.) C. D. was summoned to answer A. B. of a plea thereon (i) that he keep with him the covenant made by the said C. D. with the said A. B. according to the force, form, and effect; of a certain indenture, (or, "of a certain deed poll," or, "of certain articles of agreement," or, "of a certain charter-party of affreightment,") made be tween them, &c. and thereupon the said A. B. by —, his attorney, complains, For that whereas, &c. [State the deed, covenants, and breaches, complained of, fully, and conclude thus:] "Wherefore the said A. B saith that he is injured, and hath sustained damage to the amount of L————, and therefore he brings his suit," &c." N. B. Omit pledges. Præcipe for a court in as (to wit.) Writ of justicies to be directed to the Sheriff of the writ of justicies county of, to hold plea, in his county-*court for A. B. against in the county- C. D. in a plea of trespass on the case upon promises, For that whereas, (as in a common præcipe for a special original, except, that every material fact, as well the subject matter of the debt as the promise, must be alleged to have happened, " and within the jurisdic. tion of the said court” (k), and then conclude as follows:) To the damage of the said A. B. of L.as it is said, &c. sumpsit. Declaration thereon. In the County Court of (to wit.) C. D. by virtue of his Majesty's writ of justicies, was attached to answer A. B. of a plea of trespass on the case upon promises to the damage of the said A. B. of L., and there are pledges to prosecute, to wit, John Doe and Richard Roe; and whereupon the said A. B. by, his attorney, complains, For that, &c. (as in the præcipe to the end, and conclude as follows :) Wherefore the said A. B. saith that he is injured, and hath sustained damage to the amount of L.- and therefore he brings his suit, &c. (i) See the notes to the precedent of the declaration in assumpsit, ante, 7. (4) This is necessary, 1 Saunder's Repts. 74. note 1. 1 Lev. 253. Vin. sit. MIDDLESEX, (to wit.) (b) A. B. complains of C. D. being in 1. In assump. the custody (c) of the marshal of the Marshalsea of our lord the now king, before the king himself, of a plea of trespass on the case on promises, &c. For that whereas, &c. [Here set forth the cause of action in assumpsit, and conclude as post. 16.] [13] (to wit.) A. B. complains of C. D. being, &c. of a plea, 2. In account. that he render to the said A. B. a reasonable account for the time he was bailiff to the said A. B. in -,* in the county of, (or, "receiver of the monies of the said A. B.") For that whereas, &c.Willes, 208. 1 Wentw. 81 to 90. being, &c. of a plea, 3. In annuity, of lawful money (to wit.) A. B. complains of C. D. that he render unto the said A. B. the sum of of Great Britain, which is in arrear to the said A. nuity or yearly rent of -, and which the said said A. B. For that whereas, &c.—2 Wils. 221. Co. Ent. 48. B. of a certain an- (a) As to the title of the declarasion in general, see 1 vol. 261 to 267. and 2 Saund. 1 n. 1. The declaration should in general be entitled of the term in which the writ is returnable, 3 T. R. 624. ; but when it is by the bye, may be intitled of the term when it is delivered, Id. 627.; and if there be several defendants who put in bail of different terms it should be intitled of the term of which the last bail was put in Id., 1 Wils. 242.-When the cause of action arose after the first day of the term in which the writ is returnable, the declaration should be intitled specially of a subsequent day in that term, VOL II. [vol. 1. 264.] and it is in general advisa- 285. (c) This form is to be adopted whether the defendant be in the actual or in the supposed custody of the marshal. B 4. In debt. 5. In debt qui tam. 6. In covenant. 7. In detinue. 8. In case, or trover. 9. In trespass. -, (to wit.) A. B. complains of C. D. being, &c. of a plea that of lawful money of Great Britain, which he owes to and (d)` unjustly detains from him. For whereas, &c. he render to the said A. B, the sum of (to wit.) A. B. who sues, as well for our sovereign lord the king, (or, "for the poor of the parish of -, in the county of —,") as for himself in this behalf, complains of C. D. being in the custody, &c. of a plea that he render to our said lord the king, (or, "to the poor of the aforesaid parish,") and to the said A. B. who sues as aforesaid, the sum of of lawful money of Great Britain, which he awes to and unjustly detains from them. For that whereas, &c. , (to wit.) A. B. complains of C. D. being, &c. of a plea of breach of covenant. For that whereas, &c. 2 (to wit.) A. B. complains of C. D. being, &c. of a plea that he render to the said A. B. certain goods and chattels, (or, "deeds and writings"), of the value of L. of lawful, &c. which he unjust ly detains from him. For that whereas, &c. (Same as in assumpsit, except in the description of the form of action, which is as follows-)" of a plea of trespass on the casc, &c. For that whereas, &c." (to wit.) A. B. complains of C. D. being, &c. of a plea [14] of trespass, For that (e) the said C. D. 10. To detain cation. (to wit.) Be it remembered, That on (the day the bill a prisoner in is filed) A. B. brought into the office of the clerk of the declarations of custody of the marshal in va- the court of our lord the now king, before the king himself, according to the course and practice of the same court, his certain bill against C. D. being in the custody, &c. of a plea of trespass on the case, &c. (or as the plea is,) and filed the same bill, as of Trinity term, in the 51st year of the reign of our said lord the king; which said bill follows in these words, that is to say, to wit, A. B. complains of C. D. being, &c. (as above, in the first precedent, see 8 T. R. 643.) (d) In actions by and against executors and administrators, in general, omit the words in italics, Com. dig. tit. Pleader, 2 D. 1, 2.-2 W. 8.-1 Saund. 1. 112. n. 1. 216. and 3 East 2. [vol. 1. 291.] As to this form, see 6 Mod. 306.; and as to demanding more or less than appears to be due, see 1 Hen. Bla. 249. Com. Dig. tit. Pleader, C. 84. and Vin. Ab. tit. Miscasting. (e) A declaration by bill in trespass, stating, that whereas or wherefore the defendant did the act complained of, is bad on special demurrer, see vol. i. p. 290, 375, 1 Stra. 621, 2 Stra. 1151. 1162; but not so by original, or in C. P. when the writ is recited, 1 Wils. 99. 2 Wils. 203. |