CH. XVII. secute discontinued. Form of declaration. C month and year on which it is filed or delivered" but it has been doubted, whether this part of the rule applies to declarations in ejectment. This rule also contains the Forms to be used for the commencement of declarations ↳, after summons or arrest, which will Pledges to pro- be found in the Appendix ; and declares, that the entry of pledges to prosecute, at the conclusion of the declaration, shall in future be discontinued. Since the making of this rule, it is not necessary to state, in a declaration in the Exchequer, that the plaintiff is a debtor to the king, or that he is less able to pay the king's debts *: and it is no ground of special demurrer, that the plaintiff omits to describe the nature of the action, at the commencement of the deCorrespondence claration f. The declaration should regularly correspond with the of, with process. process, in the names of the parties to the action, the description of the character in which they sue or are sued, and the nature of the cause of action: and therefore, where the writ of summons was to answer the plaintiff in "an action of trespass on the case upon promises," and the notice of declaration in "an action of trespass on the case," the court, we have seen, set aside the proceedings for irregularity 1. Delivering declaration, when defendant has appeared, on serviceable cess. pro When the defendant has appeared on the writ of summons, &c., a copy of the declaration should be delivered to his attorney, or to himself, if he has appeared in person, with an indorsement thereon to plead within four days, if the venue be laid in London or Middlesex, and the defendant live within twenty miles of London; or, if he live above twenty miles from London, or the venue be laid in any other county than London or Middlesex, then the indorsement must be to plead within eight days after the delivery thereofk. If the defendant has not appeared according to the plaintiff has ap- exigency of the writ, the plaintiff may, at the expiration of eight Filing it, after peared for him. Need not state days after the service thereof, appear for him, according to the CH. XVII. statute; and in that case, a copy of the declaration must be filed with the clerk of the declarations in the King's Bench, or prothonotaries in the Common Pleas, or in the office of pleas in the Exchequer, and notice thereof delivered to, or left at the last or most Notice of. usual place of abode of the defendant, if known; in which notice should be expressed the nature of the action, at whose suit it is prosecuted, and the time limited by the rules of the court for pleading; and that in case the defendant do not plead by such limited time, judgment will be entered against him by default. In this notice it is not necessary to state the amount of the damages b and, by a late rule of all the courts", "where the residence of a defendant is unknown, notice of declaration be stuck up may in the office; but not without previous leave of the court: "The rule in such case, on a proper affidavit, is absolute in the first instance. The declaration, in the foregoing cases, must be delivered or filed absolutely: and as the plaintiff may enter an appearance for the defendant, when he has been served with the writ of summons, or a distringas has been executed, there is no occasion for his declaring de bene esse on serviceable process. : In bailable actions, where the defendant has put in and perfected special bail, a copy of the declaration should be delivered to his attorney absolutely 8; with an indorsement thereon, that the defendant must plead thereto in four (or eight) days, as the case may be, according to the defendant's residence, and the venue h. And, by a general rule of all the courts', it is ordered, that "upon all writs of capias, where the defendant shall not be in actual custody, the plaintiff, at the expiration of eight days after the execution of amount of damages. Sticking up in office. Declaration must be de livered or filed absolutely, on serviceable pro cess. claration de bene esse, when special bail has been put CH. XVII. the writ, inclusive of the day of such execution, shall be at liberty to declare de bene esse, in case special bail shall not have been perDelivery of de- fected." If the defendant therefore, at the expiration of eight days after the execution of the writ, put in special bail, which is not perfected, and the plaintiff be dissatisfied therewith, he may then, in pursuance of the above rule, deliver a copy of the declaration de bene esse, or conditionally, to the defendant's attorney, indorsed as follows: "delivered conditionally, until special bail be perfected, and the defendant must plead hereto in four (or eight) days." in, and not perfected. Filing declara when special bail When one defendant is arrested, and others served. If the defendant has not put in special bail, a copy of the declaration de bene esse, tion may be filed de bene esse, with the clerk of the declarations in the King's Bench, or prothonotaries in the Common Pleas, or in the office of pleas in the Exchequer, with an indorsement thereon, stating that it is filed conditionally, until special bail is put in and perfected; and the defendant must plead thereto in four (or eight) Notice thereof. days, &c.': and notice of filing the declaration must, in that case, be given to the defendant as before mentioned. And "if there be several defendants, and one or more of them shall have been served only, and not arrested, and the defendant or defendants so served shall not have entered a common appearance, the plaintiff shall be at liberty to enter a common appearance for him or them, and declare against him or them in chief, and de bene esse against the defendant or defendants who shall have been arrested, and shall not have perfected special bail." Where a declaration is filed, it is deemed to be a good declaration only from the time of giving notice thereof: and therefore, where a declaration de bene esse was filed, and the defendant entered an appearance before notice was given of filing it, the declaration, and all subsequent proceedings, were set aside for irregularity d Good, if filed, from time of notice only. Judgment of non pros, for not declaring. his suit. If the plaintiff do not declare in due time, he is liable to be nonprossed, or have judgment signed against him, for not prosecuting This judgment is founded on the statute 13 Car. II. stat. 2. c. 2, § 3, by which it is enacted, that "upon an appearance "entered for the defendant by attorney, in the term wherein the a Chapm. K. B. 2 Addend. 110; and as to filing or delivering declarations de bene esse, see Tidd Prac. 9 Ed. 453, 4, 5. b Chapm. K. B. 2 Addend. 106, 7, 8, Append. to Chap. XVII. § 13. R. M. 3 W. IV. reg. 2. 2 Moore & S. 335. 9 Bing. 446. d Weddle v. Brazier, 1 Cromp. & M. 69. 3 Tyr. Rep. 237. 1 Dowl. Rep. 639. S. C., and see Tidd Prac. 9 Ed. 456. -46 process is returnable, unless the plaintiff shall put into the court Cн. XVII. "from whence the process issued, his bill or declaration against "the defendant, in some personal action, or ejectment of farm, "before the end of the term next following after appearance, a non"suit, for want of a declaration, may be entered against him; and "the defendant shall have judgment to recover costs against the "plaintiff, to be taxed and levied in like manner as upon the 23 "Hen. VIII." And as the appearance may now be entered by the When signed. defendant in vacation, as well as in term time", it seems that when it is entered in vacation, the plaintiff must declare before the end of the next term after such appearance, or, if the defendant do not appear, before the end of the next term after the eighth day inclusive from the execution of the writ, otherwise a judgment of non pros may be signed. and demand of declaration. In the King's Bench, a judgment of non pros might have been Rule to declare, formerly signed, without entering any rule to declare, or calling for a declaration ; but, in the Common Pleas, the defendant must, before the end of the second term, or within four days after, have entered a rule for the plaintiff to declare, and demanded a declaration. To assimilate the practice in this respect, it was ordered, by a late rule of all the courts, that "it shall not be necessary for a defendant, in any case, to give a rule to declare, except upon removal from inferior courts." But, by a previous rule", "no judgment of non pros shall be signed for want of a declaration, until four days next after a demands thereof shall have been made in writing, upon the plaintiff, his attorney or agent, as the case may be." a c. 15. b Stat. 2 W. IV. c. 39. § 2. and see id. § 11. Ante, 100. 103. R. M. 10 Geo. II. reg. 2. (b.) K. B. Gilb. K. B. 345. d R. H. 9 Ann. reg. 3. C. P. Imp. C. P. 7 Ed. 194, 5; and as to the rule to declare, and demand of declaration, see Tidd Prac. 9 Ed. 417, 18. 421, 2. eR. H. 2 W. IV. reg. 1. § 38. 8 f R. T. 1 W. IV. reg. 4. 2 Barn. & Ad. 789. 7 Bing. 784. 1 Cromp. & J. 471. Append. to Chap. XVII. § 14. CHAP. XVIII. Imparlance, what. Of IMPARLANCE, and TIME for PLEADING, &c. IMPARLANCE is said to be, when the court gives a party leave to answer at another time, without the assent of the other party; and, in this sense, it signified time to reply, rejoin, surrejoin, &c.a But the more common signification of imparlance was time to plead and it was either general, without saving any exception to the defendant, which was always to another term, or special, which was sometimes to another day in the same term, with a saving of all exceptions to the writ, bill, or count; or, of all excepGeneral special. tions whatsoever: which latter was called a general special imparlance f. General. In what cases defendant must plead, without imparlance. Formerly, when the process, in the King's Bench, was returnable the last general return of the terms; or, in the Common Pleas, when it was returnable on that return, and the declaration was not filed or delivered on the return day, or on the day following h; or where the process, in either court, was returnable before, but the declaration was not delivered, or filed and notice thereof given, four days exclusive before the end of the term1, the defendant, if completely in court, was entitled to an imparlance; and must have pleaded within the first four days of the next term; provided the declaration a Com. Dig. tit. Pleader, D. 1. Anon. 2 Mod. 62. Anon. 2 Show. Clapham v. Lenthall, Hardr. 365. 28. e Staple v. Haydon, Id. 8. Case of University of Cambridge, 10 Mod. 127. Com. Dig. tit. Pleader, D. 1. f For an account of the different kinds of imparlances, when and how granted, and what might or might not have been done after each of them, see 2 Wms. Saund. 5 Ed. 1. (2.) 1 Chit. Pl. 4 Ed. 375, &c. Grant v. Ld. Sondes, 2 Blac. Rep. 1094. Tidd Prac. 9 Ed. 462. R. T. 5 & 6 Geo. II. (b.) R. M. 10 Geo. II. reg. 2. R. T. 22 Geo. III. K. B. h R. H. 35 Geo. III. C. P. 2 H. Blac. oct. Ed. 551. 7 Taunt. 71. (a.) 2 Marsh. 337. (a.) 2 Chit. R. 381. i R. T. 5 & 6 Geo. II. (b.) K. B. |