Definition
A defunct English procedural term describing a method by which a plaintiff could file a declaration against a defendant already in the custody of the court under process from a separate suit, without the need for new process. The plaintiff proceeding "by the bye" took advantage of the court's existing custodial hold on the defendant — whether from a different plaintiff's action or from a different cause of action brought by the same plaintiff — to initiate or advance a claim without independently arresting or serving the defendant anew.
The essential distinction in historical practice was between declaring "in chief" and declaring "by the bye." A declaration in chief arose from the original writ under which the defendant had been brought before the court — the principal cause of action for which process was sued out. A declaration by the bye arose incidentally to that custody: a secondary or collateral proceeding that attached itself to an existing custodial situation rather than generating its own.
In the King's Bench, the procedural threshold was low. Even the filing of common bail — a formal but largely fictitious acknowledgment of appearance — sufficed to establish the court's custody of a defendant and thereby permitted a declaration by the bye to be filed against him.
This practice is now abolished.
Common Language
Modern common usage (Wiktionary): Alternative spelling of "by the by" — a transitional phrase meaning "incidentally" or "as an aside," used to introduce a tangential remark.
Historical common usage (Webster's 1913): Not separately entered; subsumed under "by the by," defined as a phrase meaning incidentally or in passing, used to introduce a parenthetical or secondary matter not central to the main subject.
The overlap here is not accidental. Burrill explicitly cross-references the Latin obiter — meaning "in passing" or "incidentally" — as the conceptual root of the legal term. The common and legal meanings share the same etymological core: something secondary, collateral, not the main affair. The legal meaning, however, is precise and procedural, describing a specific mechanism for filing process against a defendant already in custody, not merely a rhetorical aside.
Common Confusion
"By the bye" is occasionally confused with "by the court," a notation appearing at the end of a judge's order, and with similar short-form Latin and English procedural tags used in older reports. These are unrelated. The confusion arises from their shared appearance as untranslated marginal notations in early English and American case reporters, where procedural terms of art were often left in their original form without gloss.
Why It Matters in Research
This term is a trap for researchers working in pre-nineteenth century English practice materials and early American reports that followed English procedural conventions. Its appearance in a historical pleading record or procedural manual signals a specific — and now obsolete — mode of declaring that bypassed standard process requirements by leveraging existing custody.
Researchers should note several navigational points:
First, the practice was abolished in England and did not survive into modern common law procedure in either its English or American forms. Any document invoking this term post-abolition is either quoting historical precedent or is itself a historical document.
Second, the King's Bench context is essential. The low threshold for "custody" in the King's Bench — where even common bail sufficed — made declarations by the bye far more available there than in other courts. Researchers encountering the term in records from other courts should check the jurisdictional rules carefully; the same flexibility did not automatically apply.
Third, Burrill's gloss of obiter as the Latin equivalent is significant for Latin-document research. Where English procedural records are absent or fragmentary, a Latin-language record using obiter in a procedural (rather than judicial-dictum) context may be describing the same mechanism.
Fourth, Rapalje & Lawrence's note that the practice "is now abolished" dates the outer boundary of live use. Citations to Sellon's Practice (1 Sellon, Pr. 228) and Tidd's Practice (1 Tidd. Pr. 4) are the primary technical authorities for understanding how the practice actually operated and are the appropriate shelf sources for anyone needing to reconstruct its mechanics.
Historical Dictionary Support
The three source dictionaries converge on the core definition without meaningful disagreement. All agree that the term describes filing a declaration against a party already in court custody under separate process, and all treat the practice as historical.
Burrill adds the most analytical value, drawing the explicit contrast between declaring in chief and declaring by the bye, and supplying the Latin obiter as the conceptual anchor. This is the most useful entry for a researcher trying to understand the term's doctrinal logic rather than merely its procedural application.
Bouvier provides the most practical detail, specifying the King's Bench context and the common bail threshold, and citing Sellon and Tidd as the operative treatise authorities. Researchers reconstructing actual practice mechanics should begin here.
Rapalje & Lawrence is the most concise and confirmatory, adding the explicit statement of abolition and noting — unusually — two adjacent entries ("by the court" and "by the road") that appear in early reports as similarly untranslated procedural notations. This comparative framing is useful for distinguishing the term from superficially similar notations in the same source materials.
None of the three dictionaries traces the abolition to a specific statute or rule, which limits their utility for establishing a precise end date for live practice. Researchers needing that boundary should consult the English procedural reform history of the early nineteenth century.