
    Sossamon against Gamble.
    
      May, 1820.
    Omission of a verment that defendant is in custody, or of recital of nature of action, bad on special demurer.
    DEBT in Superior court of Washington county. Declaration after its title proceeds, “ James C. Gamble complains of John F. Sossamon for that “ whereas the said John F. Sossa-mon on,” <fec. setting out the date and amount of the note, &c. ™ the usual form. Special demurrer because declaration does not alledge that defendant is in custody — declaration does not pursue the writ — there is no positive averment, but the whole is by way of recital — joinder in demurrer — demurrer over-ruled, and Judgment for plaintiff Sossamon here assigns as error, the matters .of the demurrer.
   The Chief Justice

delivered the opinion of the court.

This being a special demurrer, brings into question defects as to matters of form. In the court of King’s Bench it is not necessary that there should be an original writ in every case, but it must be averred that defendant is in custody, whether he be in the actual or supposed custody of the marshal, In this State he must be actually arrested, or some part of his estate attached by process, in every case, before he can be required to answer the plaintiff’s action. It seems then that this averment should be made in the declaration. We cannot discover, either from the forms, or doctrine of practice, in the King’s Bench or Common Pleas in England, but that this, or somo averment equivalent thereto, has ever been considered necessary.

The declaration does not pursue the writ. The ancient practice was to repeat the whole original writ in the declaration. By the modern practice the recital of the writ is dispensed with, except as to the nature of the action. 1 Saund. 318, note 3—2 Chitty’s Pl. 141—Com. D. Pleader, 2 W. 7, 8. Ip this case there was no recital of the writ, nor of the nature of the action. We are of opinion that the Court below erred in over-ruling the demurrer. °

-Crawford and Hitchcock for plaintiff

J. Pickens for defendant in error.

Let the Judgment be reversed.  