James Cheetham v. Zachariah Lewis

James Cheetham v. Zachariah Lewis. EVERTSON moved to set aside the declaration, and stay all further proceedings, because, though the writ was returnable in November, 1803, the plaintiff had not filed and delivered his declaration till September last. He contended, that by the rules of the common law, a plaintiff was obliged to declare within the year, and if he did not do so, he was ipso facto out of court. If some limitation of this sort was not in force, a cause might be hung up ad infinitum. In support of the application, he cited 112. and particularly the reasoning of Buller, J. Van Wyck, contra, argued that the only mode of putting a plaintiff out of court, was, by a rule to declare, or be nonprossed. [MAJORITY — Per Curiam.] Per Curiam. There is no such rule of practice in this court as thát insisted on by the defendant. It is in his power to nonpros the plaintiff if he pleases ; if he does not, the plaintiff may declare at any time. The decision, however, in this case, will not apply to a suit removed by habeas corpus ; for there, as the defendant cannot nonpros, he is not bound to plead.