IN THE SUPE. one of the sworn clerks of the office of Pleas of her Majesty's Court of Exchequer, in his own proper person, complains of C. D. who has been summoned to answer the said A. B. [or "who has been arrested at the suit of the said A. B."] For that. &c. 10. Do. in a se- In the Queen's Bench [or "Common Pleas," or "Exchequer of Pleas."] cond action after a plea in abatement of the nonjoinder of a defendant. (*) On the day of A. D. 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 to answer the said A. B., and which said C. D. has heretofore pleaded in abatement the nonjoinder of the said G. H. For that, &c. 11. Occasional In the Queen's Bench [or "Common Pleas," or " commencement in debt. (y) On the A.D. Exchequer of Pleas.”] day of to wit. A. B., by E. F. his attorney, [or "in his own proper person,"] complains of C. D., who has been summoned to answer the plaintiff in an action of debt, and the plaintiff demands of the said defendant the sum of £ which he owes to (≈) and unjustly detains from him. For that, &c. 12. Occasional In the Queen's Bench [or "Common Pleas," or "Exchequer of Pleas."] commencement in detinue and debt. On the A. D., day of to wit. A. B, by E. F. his attorney, [or "in his own proper person,"] complains of C. D., who has been summoned to answer the plaintiff in an action of detinue and debt; and the plaintiff demands of the defendant certain goods and chattels, [or "deeds and writings," according to the subject matter of the claim] of the value of £, which he unjustly detains from him and also the sum of £; which he owes to and unjustly detains from him. For that, &c. ration by the assignee of a sheriff on bail bond. day of A. D. — to wit. A. B., assignee of E. F. Esq,, sheriff, [or "late sheriff"] of the county of according to the form of the statute in such case made and provided, by Y. Z. his attorney, [or " in his own proper person,"] complains of C. D., who has been summoned to answer the said A. B. For that, &c. [See full form of declaration, post, debt on bail bond, and conclude as (x) This form is prescribed by the rules, Hil. Term, 4 W. 4, r. 20, which provides that in all cases under the 3 & 4 Will 4, c. 42, s. 10, which, after a plea in abatement of the nonjoinder 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. The counts and conclusion of the declaration are the same as if the action had originally been brought against all the parties pleaded to have been joint contractors. (y) When the declaration contains several counts for different debts, and the commencement of the declaration states the aggregate of all the sums afterwards demanded, a misstatement of the amount is not demurrable or material, for it may be rejected as surplusage. Lord v. Houstoun, 11 East, 62, 65; 1 Hen. Bla. 249; Verney v. Iddings, 2 Chitty's Rep. 234. (*) At the suit of an executor or administrator, the words “ owes to" should technically be omitted, but if introduced they would not constitute any ground of demurrer or irregularity, as they may be rejected as surplusage. Collett v. Collett, 3 Dowl. 211. follows] To the damage of the plaintiff, as such assignee, of £50, and there- IN THE SUPEfore he brings suit, &c. On the RIOR COURTS. 14. Commence ment of a declaration in debt In the Queen's Bench [or "Common Pleas," or "Exchequer of Pleas."] And thereupon, as well for our said lady the queen [or " for the poor of the said parish of "] as for himself in this behalf, he brings suit, &c. (b) In the Queen's Bench [or "Common Pleas," or "Exchequer of Pleas."] day of A. D. —. On the to wit. A. B., at whose suit a writ of summons was issued in this cause by the name of E. B., by E. F. his attorney, [or "in his own proper person,"] complains of C. D., who has been summoned to answer the said A. B. For that, &c. In the Queen's Bench [or "Common Pleas," or "Exchequer of Pleas."] In the Queen's Bench [or "Common Pleas," or "Exchequer of Pleas."] day of A. D. said On the to wit. A. B., by E. F. his attorney, [or "in his own proper person,"] complains of C. D., who has been summoned to answer the A. B. and Y. Z. since deceased; and now on this day, that is to say, on the day of A. D. the said A. B., by his attorney aforesaid, comes and gives the Court here to understand and be informed, that the said C. D. was so summoned by virtue of a writ of summons issued out of the said Court on the day of - last against the said C. D. at the suit of the said A. B. and the said Y. Z.; and that since the issuing of the said writ, and before this day, to wit, on the (a) In an action of debt qui tam it is usual, though unnecessary, here to add "in an action of debt," and the plaintiff demands of the defendant the sum of £-, [the aggregate of the sums afterwards claimed,] which he owes to and unjustly detains from our said lady the queen [or "the poor of the said parish," and the plaintiff who sues as aforesaid," For that, &c. (b) In a declaration by a common informer, who is not entitled to damages for the detention of the penalty, the declaration must not conclude ad damnum; 4 Burr. 2021, 2496; 1 Marsh. 180. (e) This form is proper when the defendant VOL. II. day of A. D. the said has entered his appearance in his right name, (d) The 8 & 9 W. 3, c. 11, s. 7, seems to C 15. Do. by a plaintiff who has been sued by a wrong name. 16. Do. against a defendant sued by a wrong name. (c) 17. Do. by a surviving plaintiff where his co-plaintiff died between writ and declaration. (d) IN THE SUPE Y. Z. died, and the said A. B. then survived him: (e) and thereupon the said A. B., by his attorney aforesaid, complains. For that, &c. [laying all the promises to have been made and causes of action to have accrued to the plaintiff and the deceased party, and concluding "that the defendant still refuses to pay to the plaintiff, to his damage of £; and thereupon he brings suit, &c." 18. Do. against In the Queen's Bench [or "Common Pleas," or "Exchequer of Pleas."] a surviving defendant, where the deceased died between writ and declara. tion. (f) On the day of A. D. to wit. A. B., by E. F. his attorney, [or "in his own proper person," complains of C. D., who together with G. H. has been summoned to answer the said C. D., and which said G. H., since the issuing of the writ of summons in this suit against the said C. D. and the said G. H., and before this day, to wit, on the day of A. D. died, and the said C. D. then survived him; (g) and thereupon the said A. B., by his attorney aforesaid, complains against the said C. D. For that, &c. 19. Do. where In the Queen's Bench [or "Common Pleas," or "Exchequer of Pleas."] one of the defendants has been out lawed. (h) On the day of A. D.to wit. A. B., by E. F. his attorney, [or "in his own proper person,"] complains of C. D., who has been summoned to answer the said A. B.; and thereupon the said A. B. by his said attorney complains. For that whereas the said C. D. and one G. H., which said G. H. by due course of law has been outlawed [or, if a woman, say “waived”], at the suit of the said A. B. in this action, (i) and still remains so outlawed (k) [or "waived"], on, &c. were indebted, &c. [State the promises and breach by both the defendants, and conclude, stating "that the said C. D. and G. H. wholly refused, and the said C. D. still doth refuse, to the damage of the said A. B. of £————— ; and thereupon he brings suit," &c. 20. Do. by a surviving partner. (1) II. RELATING TO THE CHARACTER IN WHICH THE PLAINTIFF 1st. SURVIVING PARTNERS. In the Queen's Bench [or "Common Pleas," or " Exchequer of Pleas."] to wit. A. B., who hath survived one E. F. hereinafter mentioned, by G. H. his attorney, [or "in his own proper person,"] complains of C. D., who has been summoned to answer the plaintiff. For that whereas, &c. (e) The forms used here to add," which (h) This precedent was taken from Impey's (i) It has been held that the declaration must show an outlawry in the present suit, 3 East, 144; 15 East, I; but need not refer to the record of outlawry, 7 East, 50. As to a plea denying the outlawry, see 1 East, 634. (k) In an action against acceptors of a bill, one of whom has been outlawed, introduce this averment of outlawry, after statement of the direction of the bill to the defendants. See a declaration against one executor after outlawry of the others, Lil. Ent. 20. (1) The plaintiff must sue as surviving partner; 4 B. & A. 374; 6 J. B. Moore, 332; 2 Stark. 356. See 2 Marsh. 319; 6 Taunt. 597, S. C. On the In the Queen's Bench [or "Common Pleas," or " Exchequer of Pleas."] 2nd. HUSBAND AND WIFE. In the Queen's Bench [or "Common Pleas," or " Exchequer of Pleas."] to wit. A. B. and C. his wife, by Y. Z. their attorney, [or "in their own proper person,"] complain of D. E., who has been summoned to answer the plaintiffs. For that whereas, &c. In the Queen's Bench [or "Common Pleas," or " Exchequer of Pleas."] On the A. D. day of to wit. A. B., by Y. Z. his attorney, [or " in his own proper person,"] complains of C. D. and E. his wife, who have been summoned to answer the plaintiff. For that, &c. 3rd. BY ASSIGNEES OF A BANKRUPT. (p) In the Queen's Bench [or "Common Pleas," or "Exchequer of Pleas."] to wit. A. B. and C. D., assignees of the estate and effects of E. F. a bankrupt, according to the statutes in force concerning bankrupts, by Y. Z. their attorney, [or " in their own proper persons,"] complain of G. H., who has been summoned to answer the plaintiffs. For that, &c. IN THE SUPE- 21. Do. against 22. Do. by husband and wife. (n) 23. Do. against husband and wife. (0) 24. Do. by assignees of a bankrupt. To the damage of the said plaintiffs, as assignees as aforesaid, of £; Conclusion. and thereupon they bring suit, &c. In the Queen's Bench [or "Common Pleas," or "Exchequer of Pleas."] On the day of 25. Do. by one partner and the assignees of to wit. A. B., C. D. and E. F. (the said A. B. and C. D. being another. assignees of the estate and effects of L. M. a bankrupt, according to the statutes in force concerning bankrupts,) by Y. Z. their attorney, complain of G. H., who has been summoned to answer the plaintiffs. For that, &c. (m) The defendant need not be declared against as surviving partner; 1 B. & A. 29; 2 Chitty's Rep. 406. (n) Whenever the wife joins, her interest in the debt or claim must appear; 2 Bla. Rep. 1236. How to sue, and when husband and wife may join, see ante, vol. i. See a form at the suit of baron and feme sole trader, 1 Wentw. 381. (0) See form, Lil. Ent. 27. No count on a promise by the feme or by the husband during the coverture should be added; 1 Taunt. 212; Palm. 313. As to when husband and wife should jointly sue, see ante, vol. i. (P) The pleading rules of Hil. T. 4 W. 4, expressly declare that the representative character of plaintiffs as assignees shall not be deemed as in issue, unless specially denied The trustee or assignee of a bankrupt under IN THE SUPE- In the Queen's Bench [or "Common Pleas," or "Exchequer of Pleas.”] RIOR COURTS. 26. Do. by as fiats, to recover a debt due On the day of A. D. to wit. A. B. and C. D., assignees of the estate and effects of I. K. signees of two or a bankrupt, under and by virtue of a fiat in bankruptcy duly issued and more bankrupts, under several awarded against the said I. K., and E. F. and G. H. assignees of the estate and effects of L. M. a bankrupt, under and by virtue of a fiat in bankruptcy duly issued and awarded against the said L. M. according to the statutes in force concerning bankrupts, by their attorney, complain of O. P. who has been summoned to answer the said plaintiffs. For that whereas, &c. [By the provisional syndics of the estate and effects of a French bankrupt, see Alison, jun. v. Beavain, 4 Tyr. 751.] to the joint estate. (q) 4th. BY THE ASSIGNEE OF AN INSOLVENT DEBTOR. (r) 27. Do. by the In the Queen's Bench [or "Common Pleas," or " Exchequer of Pleas."] assignee of an insolvent debtor. On the day of A. D. to wit. A. B., assignee of the debts, estate and effects of C. D., heretofore an insolvent debtor, according to the statutes in force for the relief of insolvent debtors in England, by E. F. his attorney, [or "in his own proper person,"] complains of C. D., who has been summoned to answer the said A. B. as assignee as aforesaid. For that whereas, &c. On the day of A. D. —. 28. Do. by the In the Queen's Bench [or "Common Pleas," or "Exchequer of Pleas."] assignee of an insolvent after the removal of the first assignee by the Insolvent Court. 29. Do. by an executor. to wit. R. B., assignee of all the debts, estate and effects of T. A., an insolvent debtor, according to the statutes in force for the relief of insolvent debtors in England, left unsettled, undisposed of, and not applied by one A. N., heretofore assignee of the debts, estate and effects of the said T. A., the said A. N. having been removed from such trust and office as assignee as aforesaid, and the said R. B. appointed in his stead, by E. F. his attorney, [or" in his own proper person,"] complains of R. S., &c. [Proceed as usual as in other actions at the suit of an assignee. 5th. BY AND AGAINST EXECUTORS. In the Queen's Bench [or "Common Pleas," or "Exchequer of Pleas."] A. D. to wit. A. B., executor of the last will and testament of E. F. deceased, by E. F. his attorney, [or "in his own proper person,"] complains of C. D., who has been summoned to answer the plaintiff. For that whereas, &c. 30. Do. against In the Queen's Bench [or " Common Pleas," or "Exchequer of Pleas."] an executor. (s) On the day of A. D. to wit. A. B., by E. F. his attorney, [or "in his own proper person,"] complains of C. D., executor of the last will and testament of G. H. deceased, who has been summoned to answer the said A. B. For that, &c. (9) See ante, vol. i.; 2 J. B. Moore, 3. Dowl. N.R. 283. (s) See forms, 2 Rich. C. P. 142; Plead. Assist. 9, 346; Lil. Ent. 26, 27, 50. |