Dod against Grant
| Jurisdiction | England & Wales |
| Judgment Date | 15 January 1836 |
| Date | 15 January 1836 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 869
IN THE COURT OF KING'S BENCH.
[485] Don against grant. Friday, January 15th, 1836. A declaration in K. B. begin rung in the old form, " A. complains of B. being in the custody of the marshal," &c., is not on that account specially demurrable since the Act 2 W. 4, c. 39, and the rules of Mich. t. 3 W. 4. For the Court will not presume that the action was not commenced in the Palace Court, and the defendant actually in custody of the marshal, in which case the declaration would be correct, the Act and rules not applying to causes removed from Inferior Courts. If the defendant wishes to object to such a declaration in a suit commenced in a Superior Court, he should not demur, but move to set aside the declaration for irregularity. The declaration was dated "on the 14th day of March, in the year of our Lord 1835," and commenced as follows :-" Charles Dod in his own proper person complains of James Charles Grant, being in the custody of the marshal of the Marshalsea of our lord the now King, before the King himself, in an action on promises, for that whereas," &c. Special demurrer for " that, in the beginning of the said declaration, the plaintiff has not followed the rules prescribed by the Court; for it is not stated therein, either that the defendant has been summoned to answer the plaintiff, or that he has been arrested at the suit of the plaintiff, or that he is detained in custody at the suit of the plaintiff:" and that the declaration, in the commencement, is according to the form used before the passing of the Act for the uniformity of process, and is not according to the rules and practice now in force concerning the beginnings of declarations. Joinder in demurrer. John Jervis, in support of the demurrer. By stat. 2 W. 4, c. 39, all personal actions in the Superior Courts are to be commenced by such process as is directed in sects. 1 and 4. The former practice, by which a party was placed in a fictitious custody of the marshal, and declared against by the bye, is abolished by the statute; and, if a party is really in custody of the officer of another Court, he need not now be brought into this [486] Court to be charged with a declaration ; but the Act, by sect. 8,, and Sched. No. 5, gives a form of detainer, which is to state the custody in which the party actually is. If it be true, here, that the defendant is in the marshal's custody, the declaration should state the mode in which the...
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