meaning of the constitution, or that they are not citizens, and cannot be parties to litigation in the federal courts, are subjects not fit for present speculation, and which must await the developments of judicial history.

"My present duty is to apply the law as I find it settled now. And, as I understand it, the fact that some of the stockholders of the company reside in the same state as the plaintiff, is a circumstance of no importance whatever. Though they may be affected by the judgment in the case, they are not to be considered parties to the record. The president and directors are the substantial parties sued, under the shadow of the corporate name, and I am to presume them citizens of New Jersey, because it is shown that the company was incorporated by that state, and is doing business therein. Nor is that presumption rebutted by their holding property and transacting business through agencies in Pennsylvania. The jurisdiction of the Circuit Court results, therefore, out of the citizenship of these governing members of the corporation.

"Under the act of Congress, it is to be made to appear to the satisfaction of this court, that the matter in dispute exceeds five hundred dollars, exclusive of costs. An affidavit to that effect is appended to the petition of the company, which, though objected to, I deem sufficient, and I also consider the surety offered, 'good and sufficient.'

"It is therefore ordered that the prayer of the petitioner be granted, that the security be accepted, and that this court will proceed no further in the cause."

*CHAPTER XVII.

[ *419]

Of the DECLARATION.

HAVING stated, in the preceding chapters, the various means of bringing the defendant into court, when at large, in actions commenced by original writ, or by bill of Middlesex or latitat, in the King's Bench, or capius quare clausum fregit, &c. in the Common Pleas, or by venire facias, subpoena, or quo minus, in the Exchequer, and also whatever is peculiar to the proceedings in actions by or against attorneys and officers, who are supposed to be already in court, and prisoners in actual custody of the sheriff, &c. or of the marshal of the King's Bench or warden of the Fleet prison, with the removal of causes from inferior courts, I shall, in the sent chapter, treat of the declaration in ordinary cases; where the defendant, having been arrested upon or served with process, either appears and puts in and perfects special bail, when necessary, or files common bail, or an appearance is entered or common bail filed for him by the plaintiff, according to the statutes.(a)

pre

The declaration is a specification, in legal form, of the circumstances which constitute the cause of action; and, in actions by original, is an exposition of the writ, with the addition of time, place, and other circumstances:(6) and it is either in chief, or by the bye. A declaration in chief is at the suit of the same plaintiff, for the principal cause of action, or that for which the writ was sued out: A declaration by the bye is at the suit of a different plaintiff, or of the same plaintiff for a different cause of action.

The plaintiff can in no case declare against the defendant, until the return day of the writ: and, except against attorneys or prisoners, the declaration cannot be delivered or filed absolutely, until the defendant has

(a) 12 Geo. I. c. 29, § 1, altered by 5 Geo. II. c. 27. 43 Geo. III. c. 46, 2. 45 Geo. III. c. 124, 3. 51 Geo. III. c. 124, ? 2 & 7 & 8 Geo. IV. c. 4 & 130, c. 5, 8 71, c. 71, § 2, 5. Ante, 114, 120, 21; 228, 241, 2, 3, 4.

(6) Co. Lit. 303; and see 1 Chit. Pl. 4 Ed. 222.

appeared, and put in and perfected special bail, when neceseary, or filed common bail, or an appearance has been entered or common bail filed for him by the plaintiff, according to the statutes. (c) So, in an inferior court, a custom to declare against a defendant, before an appearance entered by him, or by some person for him, is bad in law. (d) But when the defendant has been arrested upon, or served with a copy of process against his person, the plaintiff may declare de bene esse, or conditionally, on the return of the writ, before the defendant has appeared, or put in and perfected [*420] special bail, &c.: and the declaration, or copy of the bill, is usually *delivered before appearance, in actions against attorneys and officers of the court of King's Bench, and prisoners in actual custody of the sheriff, marshal, or warden.(aa) When there are several defendants, against whom it is intended to proceed jointly, the plaintiff cannot declare until they are all in court:(aa) And, in cases of contract, where bailable process is taken out against several defendants, for a joint cause of action, the plaintiff cannot declare against them severally ;(b) but it is otherwise in the Common Pleas, where the process is not bailable;(ce) for in that case, we have seen,(dd) the plaintiff is allowed to join four defendants, for separate causes of action, in one writ, and to declare against them severally; and if they do not appear, he may bring them into court, by entering an appearance for them, according to the statute. So, in actions of tort, a party suing out bailable process against several defendants jointly, may it seems declare separately against one of them.(e)

În actions by bill in the King's Bench, if the defendant appeared personally at the return of the writ, the plaintiff was anciently obliged to declare against him within three days;(f) or, if he appeared by attorney, the plaintiff must have declared before the end of the term.(g) Afterwards, the time for declaring was extended; and a rule was made by Coke, Ch. J. and the court, in the reign of James the first, that the plaintiff ought to declare the same term, or the term after bail was filed; (h) and in a subsequent case, the course of the court was certified by the secondary and clerks to be, that no declaration should be taken upon any bail, but within three terms after the bail filed; and it was said that Lord Ch. J. Popham and the court, in his time, made an express order accordingly; for before then the usage was often otherwise: and the court in that case held it to be a very good course, and that it should not be altered.() In the case of prisoners, the plaintiff, agreeably to this practice, was allowed three terms after the arrest, to remove the defendant, in order to charge him with a declaration.(k) At length, by the statute 13 Car. II. stat. 2, c. 2 § 3, the time for declaring upon a bill of Middlesex or latitat, in the King's Bench,

(c) Lofft, 333. 2 Durnf. & East, 719; and see Forrest, 33. 2 Chit. Rep. 165. (d) 3 Barn. & Cres. 772. 5 Dowl. & Ryl. 719, S. C.

(aa) For the distinctions as to declaring absolutely and de bene esse, in chief and by the bye, see the valuable Suggestions of Mr. Serjeant E. Lawes, for some alterations of the law, on the subjects of Practice, Pleading, and Evidence, &c., p. 16.

(b) 5 Durnf. & East, 722. 4 East, 589. 1 Maule & Sel. 55. 3 Dowl. & Ryl. 247, K. B. 2 Blac. Rep. 759. 1 Bos. & Pul. 49. 2 New Rep. C. P. 82. 1 Marsh. 274. 7 Moore, 301, 362. 1 Bing. 48, 68, S. C. C. P. Forrest, 31, Excheq.

(cc) 1 Bos. & Pul. 19, 49; but see R. E. 8 Geo. IV. K. B.

(dd) Ante, 148.

(e) 3 Barn. & Cres. 734. 5 Dowl. & Ryl. 622, S. C.

(f) Stat. 8 Eliz. c. 2, 3 2. Hans. Introd. 2. (h) 3 Bulst. 214; and see Hans. Introd. 2.

(k) 2 Keb. 478.

was limited to the end of the next term after the defendant's appearance; and a rule was made by Hale, Ch. J. that the court would discharge prisoners on common bail, in two terms :(1) and in the time of Holt, Ch. J. the course of the court was, that if a declaration were not delivered on or before the last day of the second term, sedente curiâ, the defendant *might sign a non pros; and if he did not immediately sign [*421 ] it, though he might afterwards receive a declaration, yet he was not compellable to do so, but he might well refuse it;(a) and accordingly, as the practice of the court then stood, if the declaration was tendered at any time after the end of the second term, and before the non pros was signed, the defendant was not bound to accept it, but might sign his non pros at any time after the end of the second term.(66) But Mr. Justice Buller having expressed an opinion, that by the general rules of law, a plaintiff must declare against a defendant within twelve months after the return of the writ, though, by the rules of the court, if he do not deliver his declaration within two terms, the defendant may sign a judgment of non pros;(cc) it is now settled, agreeably to that opinion, that unless he take advantage of the plaintiff's neglect, by signing a judgment of non pros, the plaintiff may deliver his declaration, at any time within a year next after the return of the writ.(d)

In the Common Pleas, or in actions by original in the King's Bench, when the proceedings were ore tenus at the bar of the court, the plaintiff was anciently demandable on the defendant's appearance; and if he did not appear, or would not count against him, he might have been immediately nonsuited.(e) But the parties by consent, might have obtained a day before declaration, which was called a dies datus prece partium;(f) for the consent of the defendant exempted the plaintiff from the necessity of declaring immediately. In that case, if the defendant had made default at the day given, since there was no declaration, the plaintiff could not have had judgment, but was obliged to bring him in again by process;(g) for none could have judgment, but upon complaint exhibited against the defendant whilst in court. But after declaration, if the defendant had made default, judgment was given against him; because, having deserted the court, he ceased to oppose the plaintiff's demand, and so submitted that the court should give judgment.(h)

In process of time, when the proceedings were no longer ore tenus, but the defendant was at liberty to appear by attorney, the defendant could not have nonsuited the plaintiff, in the Common Pleas, without giving a rule to declare, and calling for a declaration. If the writ were returnable in five weeks of Easter, or on the last return of any term, the defendant, having given a rule, and called for a declaration, might have entered a nonsuit, if it were not delivered four days or more before the essoin-day of the ensuing term:(2) and if the writ were returnable on any other

(1) Id. 812.

(a) 12 Mod. 217.

(cc) 2 Durnf. & East, 112.

(bb) R. M. 10 Geo. II. reg. 2, (b), K. B.

(d) Id. ibid. 3 Durnf. & East, 123, 4. 5 Durnf. & East, 35. 7 Durnf. & East, 7; but see 2 New Rep. C. P. 404.

(e) 2 Hen. IV. 15, 23. 22 Edw. IV. 1.

(f) Hardr. 365. Gilb. C. P. 41, 2; and see Doc. Pl. 222. (9) 19 Hen. VIII. 6 Moor, 79. 3 Leon. 14.

Salk. 216, S. C.

(h) Gilb. C. P. 40, 41.

Benl. & Dalis, 153, S. C. 6 Mod. 6, 7, 8. 1

(i) R. M. 1654, 15, K. B. & C. P.

return, the defendant, having in like manner given a rule, and called for a declaration, might it seems have entered a nonsuit, if it were not deli

vered some time during the same term.(k) But if the defend[*422] ant had appeared the first term, *and given no rule to declare, the defendant's attorney might have been compelled to accept a declaration, the second term, with an imparlance; and the declaration might have been entered as of that term, with an imparlance over to the next, or in the first term with an incipitur, as the case required. (a) In such case however, if the plaintiff had not declared the second term, a nonsuit might have been entered at the end of that term, upon a continuance over by dies datus, but not the third term or after.(a)

At length it was settled, agreeably to the statute 13 Car. II. stat. 2, c. 2, § 3, that "upon all process returnable the first or any other return in any term, the plaintiff shall have liberty, to the end of the next ensuing term, to deliver his declaration to the defendant's attorney, or leave the same in the office: and the defendant's attorney having entered his appearance with the proper officer, as of that term in which the process was returnable, and, in the Common Pleas, given a rule to declare in the proper office, at the end of the ensuing term, or in four days after the end thereof, and called on the plaintiff's attorney or clerk in court, if he can be found; the defendant may, at any time in the vacation of such ensuing term, after the rule for declaring is out, sign his non pros for want of a declaration, and afterwards: and the plaintiff shall not, without leave of the court, have any longer time to declare, other than the time to be limited by the defendant's rule."(b) But if the plaintiff be not called upon by rule to declare, he hath all the vacation of the second term to declare in.(c) If the plaintiff do not declare in that time, or obtain a rule for time to declare, his cause is out of court; and if he afterwards declare, the court will set aside the declaratian for irregularity.(d) So, where a writ was returnable the last return of Trinity term, and an appearance being entered, the plaintiff proceeded no further, nor obtained a rule for time to declare, upon which the defendant in Hilary term, being the third term after the return of the writ, gave the plaintiff a rule to declare, and for want of a declaration signed judgment of non pros; the court of Common Pleas held it to be irregular, because the plaintiff by his own default was out of court at the end of the second term, and the defendant therefore could not rule him to declare but at the end of the term, or within four days after. (e) And where one of two defendants having been holden to bail in Trinity term, the plaintiff proceeded to outlawry against the other, and delivered a declaration against the former on the first day of Easter term following, not having obtained a rule for time to declare, it was holden that the cause was out of court, and the bail entitled to an exoneretur.(f)

When the defendant is outlawed before judgment, the original is determined, so that the plaintiff cannot declare thereon while the outlawry remains in force, but is put to a new action:(g) And if two defend

(k) Id. 15, C. P.

(a) R. M. 164, 15. K. B. 14, C. P. (6) R. H. 9 Ann. reg. 3, C. P.; and see R. M. 10 Geo. II. reg. 2, (b), K. B. (c) Cas. Pr. C. P. 13. Pr. Reg. 121, S. C. (d) 5 Taunt. 649; and see 2 Blac. Rep. 876, (e) Allen v. Millward, H. 30 Geo. III. C. P. (ƒ) 2 New Rep. C. P. 404.

7. 3 Bos. & Pul. 221. 4 Taunt. 715. Imp. C. P. 7 Ed. 533, 4.

(9) Cro. Eliz. 706. W. Jon. 442.

ants are *jointly sued, and one appears, and the other makes [ *423] default and is outlawed, he who appears shall be charged with the whole.(a) But if a defendant be outlawed, and he reverse the outlawry and give bail, as he ought, the plaintiff may declare against him within two terms after the outlawry is reversed; and if he do not declare within that time, the declaration may be refused, but the plaintiff shall not be non-prossed :(66) And it seems, that after the reversal of an outlawry, the plaintiff has his election, either to declare upon the first original, or to sue out a new one. (cc) In declaring against A. upon a joint contract by A. and B. it is not enough to allege that B. was in due manner outlawed, without adding that he was outlawed in that suit:(dd) But an allegation that a co-defendant was outlawed by due course of law, at the suit of the plaintiff, in this plea and suit, is sufficient, without a prout patet per recordum.(ee)

In the Common Pleas, the course of that court is, that although the original be laid in London, for expediting the outlawry, yet when the defendant comes in, the plaintiff may declare against him in any other county, be the action local or transitory:(ff) And where a writ of capias quare clausum fregit was issued against two defendants, with an ac etiam in debt, upon which one of them was arrested and put in bail, and the plaintiff proceeded to outlawry against the defendant, on an original writ issued against both, and afterwards declared against the former defendant only, alleging that he was outlawed in that suit; the court, upon reference to its officers, held that these proceedings were regular, and would not set aside the declaration:(g) observing, that it was founded on the original, on which one of the defendants was outlawed; and with respect to the writ with the ac etiam, on which the other defendant was arrested and put in bail, that writ was issued only for the purpose of bringing him into court, and having so done, it had answered its purpose; and that when a defendant is in court, the plaintiff may declare against him for any cause of action he may think proper.(h) In a subsequent case, they would not entertain a motion made on behalf of a defendant, who had been arrested and was in court by his bail, which went to impeach an outlawry against another defendant, who was not before the court.(i) The defendant in this court shall have his costs, to be taxed by the prothonotaries, if the plaintiff do not proceed within two terms next after notice of the reversal of the outlawry.(k)

If the plaintiff be not ready to declare, before the end of the next term after the return of the process, he may obtain a side-bar or treasury rule from the clerk of the rules in the King's Bench, (7) or one of the secondaries in the Common Pleas, (m) for time to declare, until the first day of the ensuing term; a copy of which rule should be served on the [*424 ] defendant's attorney, or stuck up in the King's Bench or prothonotaries' office, if the defendant have not appeared: And, in the Common Pleas, there is no difference in this respect, between a rule for time to de

(a) 5 Co. 119, (a). W. Jon. 442; but see 1 Maule & Sel. 242.

(bb) Com. Dig. tit Pleader, C. 4.

(cc) W. Jon. 443. March. 9.

(dd) 3 East, 144; but see Co. Lit. 128, 6, 352, 6.

(ee) 7 East, 50.

(g) 2 Moore, 87. 8 Taunt. 187, S. C.

(f) 3 Lev. 245.

(A) 2 Moore, 89. 8 Taunt. 189, S. C.; and see 2 Moore, 301. 8 Taunt. 304, S. C.

(i) 2 Moore, 90.

() Append. Chap. XVII. § 1.

VOL. I.-27

(k) R. T. 33 Car. II. C. P.

(m) Id. & 2.