
    CONSTITUTIONAL COURT,
    CHARLESTON,
    JAN. 1803.
    Kennedy v. Smith.
    The plaintiff must declare within twelve months after the return of the writ, and a declaration afterwards is as if there was no writ. The act of 1791, which requires the declaration to be filed before the second .court, is directory merely, and if the plaintiff has not been ruled to declare within that time, he may do so afterwards, on giving a term’s notice ; but it does not otherwise affect the general rule oflaw, and if the declaration is not filed in twelve months, the parties are out of court.
    The plaintiff sued out the writ in 1793. In 1802, no declaration having been filed, the plaintiff moved for leave to declare, having previously given a term’s notice to the defendant of the motion. The motion was overruled in Charleston district. The object of the motion in this court was to obtain what was denied by .J ,. , .... 1 the district couit on the motion in that court.
    v. Faust, 40.
    In support of the motion, it was argued by Simmons, that the practice in this State had been various in, the question befoio the court; and that it would be attended with inconvenience to conform strictly with the practice of Westminster Hal 1. That certain days are fixed in England for declaring, <$zc., which is not the case here ; but by the act of 1791, the plaintiff may declare before the second term after the return of the writ: and he is not obliged to do so unless ruled by the defendants. So in England, if a cause has been four terms without any proceedings had therein, a term’s notice must be given. 1 Cromp. 217. That before a cause is to be considered at an end, a judgment must be pronounced in it; and here no judgment ever passed. That length of time, merely, will not abate a writ. 1 Bac. Abr. 1, 22. Here, if a new writ had issued, it might have been pleaded that another was pending for the same thing. The defendant might have taken out a rule on plain, tiff, declare, and proceeded to non pros. him. This neglect to declare, cannot be deemed a discontinuance. It may be called a miscontinuance, which does not abate the writ. 1 Vin. Abr. 3.
    
      E contra.
    
    It was argued by McCbady, that after a year and a day, in England, without proceedings, the plaintiff is deemed to have discontinued, and abandoned his cause, and it cannot be revived afterwards. 3 Bl. Com. 296. 1 Com. Dig. 215. This is a rule of the common law, and in force here. The case cited from Cromp. concludes nothing, because there are four terms iu the year there. The rule of the common law is, that the plaintiff must declare within twelve months after the return of the writ. 6 T\ R. 617.
   Per curiam.

By the general rules of law, the plaintiff is bound to declare within twelve months ; and a declaration on the writ af. terwards, is the same as if there was no writ. In England, the plaintiff must declare within two terms, or give a term’s notice. 3 Bl. Com. 290 Our act requires the declaration to be filed bofore the second court after the return of the writ. The act is directory, and the plaintiff may he ruled to declare within that time; but if he is not, he may declare afterwards, within a year from the return of the writ, but he must give, a term’s no-(ice. The case from Cromp. relates to proceedings after issue joined.

Motion overruled.  