Declaration. Local actions. Tranfitory. to bring in the body of the defendant, And, if the sheriff does not then caufe fufficient bail to be perfected within the time limited by the rule, he will himself be refponfible to the plaintiff. Thus much for the procefs; which is only meant to bring the defendant into court, in order to contest the fuit, and abide the determination of the law. When he appears in perfon as a prifoner, or by attorney, then follow the pleadings between the parties, which are the mutual altercations between them, and at prefent are fet down and delivered to the attornies in writing, though formerly they were ufually put in by their counfel ore tenus, or viva voce, in court, and then minuted down by the prothonotaries. The first of thefe is the declaration, narratio, or count, antiently called the tale; in which the plaintiff fets forth his caufe of complaint at length; being an amplification or expofition of the original writ upon which his action is founded, with the additional circumstances of time and place, when and where the injury was committed. When the defendant is brought into court, upon a fuppofed trefpafs, in order to give the court a jurifdiction, which has been already mentioned, the plaintiff may declare in whatever action, or charge him with whatever injury he thinks proper, unless he has held him to fpecial bail by a special ac-etiam, which the plaintiff is then bound to pursue. In local actions, where poffeffion of land is to be recovered, or damages for actual trespass, or for wafe, c. affecting land; the plaintiff must lay his declaration, or declare his injury to have happened, in the very county and place that it did happen; but in tranfitory actions, for injuries that might have happened any where, as debt, detinue, flander, and the like, the plaintiff may declare in what county he pleases, and then the trial muft be in that county in which the declaration is laid; though if the defendant will make affidavit, that the caufe of action, if any, arofe not in that, but in another county, the Of the Proceedings. the court will direct a change of the venue or visne (that is, the vicinia or neighbourhood in which the injury was declared to be done), and will oblige the plaintiff to declare in the proper county. For the Statute 6 Ric. 2. c. 2. having ordered all writs to be laid in their proper counties, this, as the judges conceived, impowered them to change the venue, if required, and not infist rigidly on abating the writ; which practice began in the reign of James the First, 2 Salk. 670.; and this power is difcretionally exercifed, fo as not to caufe, but prevent, a defect of justice. Therefore the court will not change the venue to any of the four northern counties, previous to the spring circuit; because their the affizes are holden once a year, at the time of the fummer circuit: and it will fometimes remove the venue from the proper jurisdiction (especially of the narrow and limited kind) upon a fuggeftion duly fupported, that a fair and impartial trial cannot be had therein. It is generally ufual in actions upon the cafe, to In actions on the fet forth feveral cafes, by different counts in the fame cafe, the cafe is fet forth by dif declaration (fo that if the plaintiff fails in the proof ferent counts, of one, he may fucceed in another); and to conclude with declaring, that the defendant had refused to fulfil any of the agreements, whereby he has received damage to fuch a value. If he proves the cafe laid in any one of the counts, though he fails in the reft, he fhall recover proportionable damages. The declaration always concludes with thefe words, "and therefore he brings his fuit, &c." By which words fuit or fecta (a fequendo) were antiently underftood the witnefles or followers of the plaintiff, Seld. on Fortefc. c. 21.; for, in former times, the law would not put the defendant.to the trouble of anfwering the charge, till the plaintiff had made out at least a probable cafe. Bract. 400. Fl. b. 2. 6.6. If the plaintiff neglects to deliver a declaration at Nonpros, when the end of the enfuing term after the process is re- it may be figned. turnable, and the defendant having entered his ap pearance Defence. Oyer of the bone, &c. pearance with the proper officer as of that term in which the process is returnable, and given a rule to declare in the proper office, and demanded a declaration, the defendant may, any time in the vacation of fuch enfuing term, after the rule for declaring is out, fign his nonpros; and if he be guilty of other delays or defaults against the rules of law in any fubfequent stage of the action, he is adjudged not to follow his remedy as he ought to do; and thereupon he is also faid to be nonprofsed. And for thus deferting his complaint, after making a false claim, he fhall not only pay cofts to the defendant, but is liable to be amerced to the king. Vide R. H. 9 Ann. f. 3. When the plaintiff hath ftated his cafe in the declaration, it is incumbent on the defendant, within the time allowed him by the rules of the court, to make his defence, and put in a plea; or else the plaintiff will at once recover judgment by default, or nihil dicit of the defendant; because, having deferted the court, he ceases to oppofe the plaintiff's demand, and fo fubmits that judgment be given against him. But before the defendant makes his defence, he may crave oyer, in writing of the bond or other fpecialty upon which the action is brought; that is, to hear it read to him; the generality of defendants, in the times of ancient fimplicity, being fuppofed incapable to read it themselves: whereupon the plaintiff's attorney delivers a copy thereof, to enable the defendant to plead fuch plea as his counsel thinks proper. R. M. 1 Geo. 2. But the court never make any rules for oyer of originals, which are matters of record. Barnes, 340. Imparlance If the plaintiff does not deliver his declaration in when intitled to. due time, the defendant is intitled to an imparlance or licentia loquendi, which feems to have arisen from a notion of religion mentioned in Saint Matthew, ch. v. v. 25. in obedience to that precept of the gofpel agree with thy adverfary quickly, whilst thou art in the way with him." They looked upon the plaintiff, at the time of declaring, to be in his way way towards judgment; and therefore, fince the defendant was ordered by the precepts of religion to agree with him, that there was a neceffity to give time for that purpofe; this imparlance was entered when the writ was general, because the defendant did not know how to agree with the plaintiff till he had heard his full demand: and therefore then the defendant might have agreed with him in the country whilft he was in the way, according to the letter of the text, in which cafe there was no need of a libertas loquendi to be entered upon the roll. Gilb C. P. 42-3. Imparlances are either general or special; general Imparlance geare granted of course, because the plaintiff has not neral or special. proceeded in due time by delivering his declaration; Special, with a faving of all exceptions to the writ or count, which may be granted by the prothonotaries; or they may be granted ftill more fpecial, with a faving of all exceptions what foever, which is granted at the difcretion of the court. 12 Mod. 529. Defence, in its true legal fenfe, denotes an op- Defence, pofing or denial of the truth or validity of the complaint, anfwering to the conteftatio litis of the civilians. It is a general affertion which the defendant makes immediately after the count or declaration, that the plaintiff hath no ground of action; which affertion is afterwards extended and maintained in his plea. And formerly the courts were very nice and curious with respect to the nature of the defence, fo that if no defence was made, though a fufficient plea was pleaded, the plaintiff should recover judgment, Co. Lit. 127.; for a general defence or denial was not prudent in every fituation, fince thereby the proprietor of the writ, the competency of the plaintiff, and the cognizance of the court were allowed, By defending the force and injury, the defendant waived all pleas of mifnomer; by defending the damages, all exceptions to the "perfon of the plaintiff," and by defending either one or the other, "when and where it should behove Two forts of pleas. Pleas in abatement. " him," he acknowledged the jurisdiction of the court. But of late years thefe niceties have been very defervedly difcountenanced. Salk. 217. Pleas are of two forts; dilatory pleas, and pleas to the action. Di'atory pleas are fuch as tend merely to delay or put off the fuit, by queftioning the propriety of the remedy, rather than by denying the injury. Pleas to the action are fuch as difpute the very caufe of fuit. Dilatory pleas are, 1. To the jurisdiction of the court: alledging, that it ought not to hold plea of the injury, it arifing in Wales, or beyond fea; or because the land in question is of ancient demesne, and ought only to be demanded in the lord's court, &c. 2. To the dilability of the plaintiff, by reafon whereof he is incapable to commence or continue the fuit; as, that he is an alien enemy, outlawed, excommunicated, attainted of treafon or felony, under a premunire, not in rerum natura (being only a fictitious perfon), an infant, feme covert, or a monk professed. 3. In abatement: which is either of the writ or the count, for fome defect in one of them, as by misnaming the defendant, which is called a mifnomer; or other want of form in any material respect. Or, that it may be, that the plaintiff is dead; for the death of either party before verdict, is at once an abatement of the fuit. And in actions merely perfonal, arifing ex delicto, for wrongs actually done or committed by the defendant, as trefpafs, battery, and flander, the rule is, that actio perfonalis moritur cum perfona, 4 Inft. 315; and it shall never be revived either by or against the executors or other representatives. Ibid. Cowper's Rep. 375. Latch. 168. 1 Andr. 243. Jon. 174. The defendant, generally speaking, can have but one plea in abatement, and this is the natural order of pleading; because, by the order before mentioned, each fubfequent plea admits the former; as when he pleads to the person of the plaintiff, he admits the jurifdiction of the court; for it would be nugatory to plead any thing in that court that has no jurifdiction |