
    James Cheetham against Zachariah Lewis.
    NEW-YORK,
    Nov. 1805.
    On an original suit ™ plaintiff may UmeTunlLr7 nonprossed.
    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 2 D. & E. 112, and particularly the reasoning of Butter, J.
    
      Van Wyck contra,
    _ argued that the only mode of putting, a plaintiff out of court, was, by a rule to declare, or be non-prossed.
    
   Per curiam.

There is no such rule of practice in this court, as that insisted on by the defendant. It is in his power to nonpross 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 ha-beas corpus; for there, as the defendant cannot nonpross, he is not bound to plead.  