he brings his suit, &c. (m) [omit pledges. (n) Add profert, if the action be by an executor or administrator, see post, 9, 14.] 2. Declaration against two Defendants, where, in a former Action against one of them, he pleaded the non-joinder of the other in Abatement. (0) In the Q. B. [or "C. P." or " Exchequer of Pleas."] (venue) to wit. A. B. by E. F. his attorney, [or "in his own proper person,"] complains of C. D. and G. H., who have been summoned [as the case may be] to answer the said plaintiff, and which C. D. has heretofore pleaded in abatement the non-joinder of the said G. H. in an action [&c. proceed and conclude as directed in the first form. 3. Declaration in an Action against one of two Defendants, the other having been Outlawed. (p). In the Q. B. [or "C. P." or "Exchequer of Pleas."] On the day of A. D. [day of declaring]. (venue) to wit. A. B. by J. S. his attorney, [or, "in his own proper person,"] complains of C. D., who has been summoned to answer the said plaintiff in an action on promises, [or as the action is, see forms, supra.] For that whereas the said C. D. and one E. F., which said E. F. by due course of law has been outlawed [or, if a woman, say "waived,"] at the suit of the said plaintiff in this action, (q) and still remains so outlawed on [&c.], were (m) "Et inde producit sectam." - The secta, or suit, were anciently persons required to be produced to bear testimony to the truth of the plaintiff's allegations; Bract. 214 b; 3 Bla. Com. 295; Gilb. C. P. 48; Steph. 3d ed. 429. The profert of the "suit, &c." has for ages been a mere form. (n) "The entry of pledges to prosecute at the conclusion of the declaration shall in future be discontinued;" Rule, Mich. T. 3 W. 4. The statement would not be ground of demurrer, but might be struck out on summons. (0) By the 20th Rule on Pleading, Hil. T. 1834, it is provided, that "in all cases under the 3 & 4 W. 4, c. 42, s. 10, in which, after a plea in abatement of the non joinder of another person, the plaintiff shall, without having proceeded to trial on an issue thereon, commence another action against the defendant or defendants in the action in which such plea in abatement shall have been pleaded, and the person or persons named in such plea in abatement as joint contractors, the commencement of the declaration shall be in the above form." (p) As to outlawry in general, see 2 W. 4, c. 39, s. 5; 2 Arch. by Chit.; Byrne v. Manning, 2 Dowl. N. S. 403 Where the action is jointly against two, and one appears, and the other is proceeded against to outlawry, it is irregular to declare against the party who has appeared until the outlawry of the other defendant is complete; Morton v. Gray, 9 B. & C. 544. The Court, or a judge in vacation, will, on application founded on affidavit, and that due diligence is exercised to execute the process against the other defendant or outlaw him, grant time to declare in the action; see id. Barnes, 306; 1 Chit. Arch. 8th ed. 185; Ames v. Ragg, 2 Dowl. 35. (q) It must be expressly alleged that the outlawry was" in this action;" see Saunderson v. Hudson, 3 East, 144; and see Haigh v. Conway, 15 East, 1. The record of outlawry need not be referred to; M'Michael v. Johnson, 7 East, 50. The outlawry of the defendant may be denied by a plea in abatement of nul tiel record thereof; Coutanche v. Le Ruez, 1 East, 133; Nowlan v. Geddes, id. 634. indebted [&c. state the promises by the defendant and E. F., and that they "have not, nor hath either of them, paid," &c. and conclude as usual. 4. Declaration in Ejectment. See forms, post, "Ejectment." 2. DECLARATIONS IN ACTIONS REMOVED FROM INFERIOR COURTS OR COMMENCED BY THE OLD PROCESS. (r) 1. Commencement of a Declaration in the Q. B. in either of the above Instances. In the Queen's Bench. On the day of, A. D., [the day plaintiff declares.] A. B. complains of C. D. being in the custody of the keeper of the Queen's Prison, in an action on promises [as the case may be, see ante, 1, Form 1.] For that whereas, [&c. conclude as ante, 6, Form 1. 2. The like, in C. P. in such Case. In the Common Pleas. On the day of, A. d. (venue) to wit. C. D. was attached [or in debt, covenant, or detinue, was summoned,"] to answer A. B. in an action on promises [or as the case may be, see Form 1, ante, 5, 6,] and thereupon the said A. B. by E. F. his attorney complains, For that whereas, [&c. proceed as usual. 3. The like, in the Exchequer, in such Case. In the Exchequer of Pleas. On the day of A. D. (venue) to wit. A. B. a debtor to our Lady the Queen cometh before the barons of her Majesty's Exchequer, on the day of A. D. [the date of declaration,] by E. F. his attorney, and complains by bill of C. D. present here in Court the same day, in an action on promises, [or as the plea may be, see Form 1, ante, 5, 6.] For that whereas, [&c. as usual. (r) See ante, 1, Obs. (A); and Dodd v. Grant, 4 A. & E. 485. The cause of action need not be stated to have accrued within the jurisdiction; Powell v. Ancell, 3 Scott, N. R. 444; S. C. 3 M. & G. 191. It would be irregular to state that plaintiff had been summoned, if not the fact; Keane v. White, 2 D. & L. 525. In the 4. Commencement of a Declaration in Replevin. 3. IN ACTIONS BY AND AGAINST PARTICULAR PERSONS. 1. Commencement and Conclusion of a Declaration by an Administrator. (venue) to wit. A. B. administator of all and singular the goods, chattels and credits, which were of G. H. deceased, at the time of his death, who died intestate, by E. F. his attorney, [or "in his own proper person,"] complains of C. D. who has been summoned to answer the said plaintiff as administrator as aforesaid in an action on promises, (s) [or as the action may be, see forms, ante, 1, 2.] For that whereas [state the cause of action as in the forms hereafter given, and conclude thus:] To the damage of the plaintiff as administrator as aforesaid of £, and therefore he brings his suit, &c. And the plaintiff brings here into Court (t) the letters of administration of all and singular the goods, chattels and credits which were of the said G. H. at the time of his death, and which letters were, after the death of the said G. H., to wit, on the day of , A. D. granted to the plaintiff by William, by divine Providence, Archbishop of Canterbury, Primate of all England, and metropolitan, [or as the case may be,] in due form of law, and give sufficient evidence to the said Court of the said grant of administration to the plaintiff. 2. Declaration by an Administrator with the Will annexed, no Executor being appointed, &c. (venue) to wit. A. B. administrator of all and singular the goods, chattels and credits which were of G. H. deceased, with the last will and testament of the said G. H. annexed, by E. F. his, the plaintiff's attorney, [or "in his, the plaintiff's, own proper person,"] complains, [&c. as before. Add profert as above, stating that the letters are produced and were granted "with the last will and testament of the said G. H. annexed." (s) In debt, see ante, 6, note (c). (t) The omission to state by what bishop or officer the letters of administration have been granted is demurrable, but not so the omission of their date; Hughes v. Wil liams, 2 C. M. & R.; S. C. 4 Dowl. 169. Form of profert of letters of administration, for the limited purpose of bringing the action, granted by the Archbishop of Dublin; Huthwaite v. Phaire, 1 M. & G. 159. 3. By an Administrator, with the Will annexed, of Goods left unadministered by an Executor deceased. (venue) to wit, A. B. administrator, with the last will and testament of G. H. deceased, annexed, of all and singular the goods, chattels and credits which were of the said G. H. at the time of his death left unadministered by O. P. deceased, who in his lifetime, and at the time of his death, was executor of the said will, by, his the said A. B.'s attorney, [or "in his, the plaintiff's, own proper person,"] complains, [&c. proceed as directed in preceding form. Add profert thus:] And the plaintiff brings here into Court the letters testamentary of the said G. H., whereby it appears that the said O. P. was executor of the last will and testament of the said G. H. and had the execution thereof, &c. And the plaintiff also brings here into Court the letters of administration of all and singular the goods, chattels and credits which were of the said G. H. at the time of his death left unadministered by the said O. P., executor as aforesaid, with the said will annexed, and which letters, with the said will annexed, were, after the death of the said G. H. and O. P. to wit, [&c. conclude the profert as in last form. 4. By an Administrator during the Minority of an Executor.(u) In the On the day of of 21 age (venue) to wit. A. B. administrator of all and singular the goods, chattels and credits, which were of G. H. deceased, at the time of his death, during the minority of L. M., an infant under the who is exeyears, cutor of the last will and testament of the said G. H. by E. F., his, the said plaintiff's, attorney, complains, [&c. as before directed. The profert will be thus:] And the plaintiff brings here into Court the letters testamentary of the said G. H., whereby it appears that the said L. M. is executor of the last will and testament of the said G. H.: the plaintiff also brings here into Court the letters of administration of all and singular the goods, chattels and credits which were of the said G. H. at the time of his death, and which letters were after the death of the said G. H., to wit, on [&c.] granted by [&c.] to the plaintiff during the minority of the said L. M. in due form of law, and which give sufficient evidence to the said Court of the said grant of administration; with this, that the plaintiff will verify that the said L. M. is still an infant within the age of twenty-one years, to wit, of the age of years. (u) By statute, 38 G. 3, c. 87, s. 6, where an infant is sole executor, probate is not to be granted to him until he has attained the age of twenty-one years. In the 5. By Husband and Wife, Administratrix. (x) (venue) to wit. A. B. and J. his wife, which said J. is administratrix of all and singular the goods, chattels and credits which were of G. H. deceased, at the time of his death, who died intestate, by E. F. their attorney, complain [&c. as before. Conclude] to the damage of the said A. B. and J. his wife, as administratrix as aforesaid, of £, and therefore they bring their suit, &c. [Add profert, alleging grant of administration to the wife only, as ante, 9. In the 6. Against an Administrator. On the day of A. D. (venue) to wit. A. B. by E. F. his attorney, [or "in his own proper person,"] complains of C. D., administrator of all and singular the goods, chattels and credits which were of G. H., deceased, at the time of his death, who died intestate, and which said C. D. has been summoned [&c. proceed as usual, Form 1, ante, 1. See forms of Causes of action against administrators, post, "Executors." 7. By the Assignees of a Bankrupt or Insolvent Debtor. (y) In the On the day of A. D. (venue) to wit. A. B. and G. H., assignees of the debts, estate and effects of L. M. [a bankrupt, according to the statutes in force concerning (1) It is clear that the husband must, in this case, join as a co-plaintiff; see Vin. Ab. Bar. & F. Q. 22; Com. Dig. Bar. & F. V.; Anon. 1 Salk. 282. (y) See the Bankrupt Act, 6 Geo. 4, c: 16, and the Bankrupt Court Act, 1 & 2 W. 4, c. 56, s. 32, 35. It is clear that the official assignee must be made a plaintiff, see id. Baker v. Neaver, cited ante, 3, (E). The non-joinder of an assignee as plaintiff would, in an action ex contractu, be a ground of nonsuit, post, Pleas, 'Non-joinder." The consent of the creditors is not essential to the support of the action; Boson v. Williams, 2 Y. & J. 475. In order to put the plaintiffs upon proof of their character of assignees, the defendant must plead specially, see "Pleas in Assumpsit," post, title, “Assignees." When an assignee dies, or a new assignee is chosen, the action will not be thereby abated, but the Court may, upon the suggestion of such death or removal and new choice, allow the name of the surviving or new assignee to be substituted in the place of the former; and the action may be prosecuted in the name of the said surviving or new assignee in the same manner as if he had originally commenced it, 6 G. 4, c. 16, s. 67; see Westall v. Sturgess, 4 M. & P. 217; Bates v. Sturges, 7 Bing. 585. There is no provision in the act enabling assignees to continue a suit commenced by a bankrupt, and which has not proceeded to judgment. The bankruptcy of a plaintiff before judgment may therefore be pleaded in bar, and will defeat the action in his name, see plea, post. So the bankruptcy of one of several plaintiffs is matter for a plea in bar, post, note; but in Barker v. Skinner, Feb. 3, 1835, MS. Mr. Justice Patteson refused to allow such plea, after an order for time binding the defendant to plead issuably; and see Staples v. Holdsworth, 4 B. N. C. 144; Wettenhall v. Graham, id. 714. Assignees can never be declared against "as assignees." They are not liable to be sued at law for dividends, 6 G. 4, c. 16, s. 111. |