DECLARATION. 645 
ties, plaintiff or demandant, defendant or tenant, ought 
to be well named. The time of a matter charged in the 
declaration ought to be certainly alleged ; and there¬ 
fore in ajfumpfit , the day being omitted on which the pro- 
mi fe is made, it is bad. Yd. 94. A certain place ought 
to be alleged, where every fa A, material and traverfable, 
was done. Kitch. 226. The gift, and every thing that is 
of the effence of the plaintiff’s adtion, muff be let forth 
in the declaration. That feems properly to be the ef¬ 
fence of the adtion without which the court could have 
no fufficient grounds, to give judgment. if the declara¬ 
tion be not fufficient on which to found a judgment, this 
may be moved inarreft of judgment after verdidt. The 
declaration muff fliew a title in the plaintiff. Cro. Eliz. 
325. In all cafes where an intereft or eftate commences 
upon condition, the plaintiff ought to fliew it in his de¬ 
claration, and aver the performance of it; but when the 
interefl of the eftate paffes prefently, and vefts in the 
grantee, and is to be defeated by condition ; there the 
plaintiff may count generally, and the condition fliall be 
pleaded by him who is to take advantage of it. The 
declaration muft contain fuch certain affirmation that it 
may be travelled ; for if there be no certain affirmation 
to make the declaration itfelf traverfable, it will not be 
cured after a verdidt, becaufe it is a defedt in fubflance. 
Co. Lit. 303. zBvJJl. 214. 2 Sazntd. 319. If a declaration 
be good in part, though bad as to another part, the plain¬ 
tiff is entitled to judgment for fo much as is well alleged, 
efpecially if it be not of an'entire demand. 10 Co. 115.. 
■Rol.Abr. 7S4-5. iSa/k.1^3. 3 Burr. 1 235. 
For preventing unnecelfary length of declarations, it 
has been fpecially ordered, that in adlions of covenant, 
the declaration is not to repeat more of the deed than is 
neceffary for the alignment of the breach, and'not tore- 
peat the covenant in the conclufion. In actions of flan- 
der, long preambles to be forborn, and no more induce¬ 
ment than what is neceffary for the maintenance of the 
adtion ; except w hen it requires a fpecial inducement 
or colloquium . In adlions upon general flatutes, the de¬ 
claration not to repeat the flatute, but to conclude 
4 againft the form of the flatute in fuch cafe made and 
provided.’ In adlions of debt upon judgment had in the 
courts at Weflminfler, to recite only the judgment; but 
if on a judgment had by, or againfl, an executor or ad- 
miniflrAtor, then the adlion of debt upon that judgment, 
to repeat the declaration and judgment. In a declara¬ 
tion on action founded on a deed, the plaintiff need not 
fet forth more than that part which is neceffary to entitle 
him to recover. Cowp. 665. And it will be fufficient to 
flate the fubflance and legal effect even of fuch part, 
which is fhorter, and not liable to mif-recitals and literal 
miftakes. The diflindtion is between that which may 
be rejedled as furplufage, which might have been (truck 
out on motion, and what cannot, where the declaration 
contains impertinent matter, foreign to the caufe, and 
which the matter on a reference to him would (trike out 
(irrelevant covenants for inftance) that will be rejedted 
by the court, and need not be proved. But if the very 
ground of the adtion is mif-fkited, as where the plaintiff 
undertakes to recite that part of a deed on which the 
action is founded, and it is mif-reeited, that will be fatal; 
for then the cafe declared orris different from that which 
is proved, and he muft recover fecundum allegata ct pro¬ 
bata. Doug. 665. Briltow v. Wright. 
There are two ways in which the plaintiff may declare, 
the one on the return.day of tire writ, which is called 
Be bene effe, conditionally, until fpecial or common-bail be 
filed; the other after the day for filing common bail, 
or when the defendant has juflified his bail, which is 
called in chief. If to fpeed tire caufe, the former is the 
belt way of proceeding. And a rule to plead may be 
given on the fame day. When a declaration is filed Be 
bene efl'c, till common bail or appearance entered, or till 
fpecial bail be filed, notice that it is fo filed muft be given 
to the defendant in writing. ImptyK.B. The plaijutift' 
Vol. V. No. 302. 
cannot declare in chief, unlefs common bail be filed by 
the defendant, or plaintiff has done it for him. 1 Term 
.635. Cooker/.Raven. And it muft be filed the term 
the writ is returnable. Hardzv. 138. When the defend¬ 
ant has filed common or fpecial bail for himfelf, a ny 
perfon may deliver or file a declaration againft him by- 
the-by, at any time during the term wherein the procefs 
againft the defendant is returnable, fedente curia ; and the 
practice hath been, that the plaintiff, at whofe fuit the 
procefs is, might declare againft the defendant in as many 
adlions as he thinks fit, before the end of the next term, 
after the return of the procefs. ImpeyK.B. 177. 4 Burr. 
2180. 
The plaintiff muft declare before the end of the term 
next after the return of the procefs; or the defendant 
may fign a non-pros , except in replevin, without entering 
any rule to declare, and the defendant fliall have cofts 
taxed as ufual. 13 Car. II. c. 2. And no rule to declare 
need be given in the king’s-bench, either by bill or ori¬ 
ginal. By the general rules of law, a plaintiff muft de¬ 
clare againft a defendant within twelve months after the 
return of the writ. But by the rules of the court, if he 
do not deliver his declaration within two terms, the de¬ 
fendant may fign judgment of non-pros. Though unlefs 
he takes fuch advantage of the plaintiff’s negledt, the 
plaintiff may (till deliver a declaration within the year. 
2 Term Rep. 123. The defendant cannot fign a non-pros , 
unlefs he enter his appearance within the term the writ 
is returnable. Hardw. 13S. To prevent a non-pros being 
figned, the plaintiff may get a fide-bar rule, if the de¬ 
fendant is not in cuftody, the laft day of the fecond term, 
for time to declare, until the firft day of the next term ; 
and lie may have as many rules as he likes, from term to 
term ; but there muft be two in a term, viz. one from 
the firft day of the term to the laft day, and the other 
from the laft day to the firft day of the next term. But 
the defendant may, if he thinks proper, move the court, 
that the laft rule maybe peremptory. Impey,K.B. In 
all notices of declarations, care is to be taken that the 
caufe be properly named, as well as the court in which 
the fuit is inftituted ; and in notices of declaration, the 
nature of the adtion is to be expreffed, and at whofe fuit 
profecuted, and the time limited to plead to fuch decla¬ 
ration. R. T. 1 Geo. II. 
It is ufual, when the caufe of adtion will admit of it, 
to entitle the declaration generally, of the term in which 
the writ is returnable ; but i; fnould always be entitled, 
after the time when the caufe of adtion is ftated to have 
accrued : therefore where the caufe of adtion is ftated to 
have accrued after the firft day of the term in which the 
writ is returnable, the declaration fhould be entitled of 
a fubfequent day in that term, and not of the term gene¬ 
rally ; for as a general title refers to the firft day of the 
term, upon fuch a title it would appear, that the adtion 
was commenced before the caufe of it accrued. Yet 
where the caufe of adtion was dated to have accrued on 
the firft day of the term, the court on demuri er held, that 
the declaration might be entitled of the term generally, 
for the delivery of the declaration is the adt of the party, 
and in antient times it could not have been delivered 
till the fitting of the court, (o that the caufe of adtion 
might well have accrued, before the adtual delivery of 
the declaration. 2 Lev. 176. 3 Term Rep. 624. If the 
plaintiff declares on a note the day is material, and an 
ellential part of the agreement from which he cannot 
vary ; fo on a bond or other writing ; but in the cafe of 
a common ajiimpfit, the day is alleged only for form, and 
therefore the defendant cannot confine the plaintiff to 
the day alleged in the declaration. Co. Lit. 283. Plowd. 
Com. 24. In other cafes, as in trefpafs, affault, battery, 
&c. the day is immaterial, but is in general laid after the 
caufe of adtion accrued, and before the term or time of 
which the declaration is intitled. 
In local adlions, where poffeflion of land is to be re¬ 
covered, or damages for an adtual trefpafs, or for wafte, 
8 B &c. 
