Smith vs. Fowle & Dunham, 12 Wend. 9

By the Court, Savage, Ch, J. By the revised statutes, 2 R. S. 347, § 1, personal actions against individuals not privileged from arrest may be commenced in two ways: 1. By the issuing and service of a capias ad respondendum ; 2. By filing in the clerk’s office a declaration entering a rule to plead, and serving a copy of such declaration and notice of such rule personally on the defendant. This mode may be adopted against any person, whether privileged or not. This is all which it is material to state in deciding the demurrer now before the court. The plaintiff is to file a declaration. What is a declaration ?

This question is very briefly and properly answered by Mr. Graham, in his treatise on the practice of this court, (Graham’s Pr. 160,) thus: “ The declaration is a statement in legal form of the plaintiffs cause of action.” It consists of five parts : 1. The Title ; 2. The venue ; 3. The commencement; 4. The statement of the cause of action; 5. The conclusion. The commencement comprises the parties, the mode in which the defendant has been brought into court, and the form of action. Id. 165. 1 Chitty, 285.

Formerly the manner in which the defendant was brought into court was important to be stated, and it was done by alleging that the defendant was arrested, or served with process, or attached or summoned, os the case might be; and when the declaration stated the manner incorrectly, the defendant could not demur without craving oyer of the original, and setting it forth; and as oyer cannot now be obtained, a variance in this respect is no longer cause of demurrer. A reference to the writ, or recital of it, Mr.

Chitty says, is not considered any part of the declaration, consequently a mistake therein is no ground of demurrer. 1 Chitty’s Pl. 289. Before our revised statutes, process was necessary to the commencement of a suit in personal actions against persons not already in contemplation of law in court; the officers of the court are supposed to be always in court; but every other person was to be brought into court, before he could be declared against.

The revised statutes have authorized a declaration before the defendant is brought into court, and that the defendant may be proceeded against upon a declaration without process. The' declaration must be filed, a rule to plead entered, and a copy of the declaration must be served personally with notice of the rule to plead before the defendant can be said to be in court. To state that the defendant is in court when the plaintiff thus files his declaration is not consistent with the truth, and should be omitted; it is however no cause of demurrer.

There is nothing in the declaration in this case to show that the defendant is not in fact in custody, &c. I cannot perceive that the declaration under the statute is to be different from what it was before the statute, except in the particular now under consideration. Formerly a plaintiff could not file his declaration against the defendant until the latter was in court. Now the declaration under the statute must be filed before the defendant can be in court. It is manifest, therefore, that the statement of the defendant’s being in court, should be omitted.

The pleader should take care, however, to show in his record that the court had jurisdiction of the person of the defendant before judgment is entered against him. When the defendant appears, the fact will be apparent upon the record ; and when judgment is entered by default, the record should show the jurisdiction of the court by a compliance with the directions of the statute. But the declaration cannot contain those facts; they are to follow, not precede filing of the the (jec]arat¡on, and cannot be contained in it. The demurrer is frivolous. Judgment for plaintiff. ..

During this same May term, the court decided on demurrer in the case of The Ex'rs of Ardin v. Sickles and Fletcher, that a declaration was good, although it contained no averment either that the defendant was in custody, or that the declaration was filed according to the statute. In July term, 1834, the same question arose in the case of Myers and Myers v. Hatfield, in which the court said it would he well to commence the declaration by saying A. B. complains of C. H. according to the form of the statute, but the omission of a reference to the statute is not cause of demurrer.

In October term, 1834, it was objected to the declaration in the cause of Knower v. Gary, which purported to be filed according to the statute, that it was not alleged that the defendant was a resident of the state, and it was insisted on demurrer that for such omission the declaration was bad ; but the court held that the allegation was unnecessary, and that any person found within the jurisdiction of the court may be served with the copy of a declaration filed against him, whether he is or is not a resident of the state.