THE PRACTICE OF THE COURTS OF KING'S BENCH AND COMMON PLEAS, IN PERSONAL ACTIONS: IN TWO VOLUMES. VOL. II. THE SIXTH EDITION: CORRECTED AND Enlarged. BY WILLIAM TIDD, Esa. OF THE INNER TEMPLE, barrister AT LAW. LONDON: PRINTED FOR J. BUTTERWORTH AND SON, AND W. REED, FLEET STREET; CHAP. XXVII. Of REPLICATIONS, and other SUBSEQUENT PLEADINGS. WHEN the defendant has put in his plea, he the plaintiff to reply, by obtaining a rule from the master, in the King's Bench, on the back of the plea; which is entered with the clerk of the rules, and a copy served on the plaintiff's attorney: In the Common Pleas, the rule to reply is given, on a præcipe, with the secondaries; and in that court, the defendant in ejectment may give a rule to reply, and non pros the plaintiff for want of a replication, but can have no costs. This rule, the entry of which is subject to the stamp-duty of half a crown, may be given at any time in term, or within sixteen days after, in the King's Bench"; and in the Common Pleas, when time to plead has been obtained, if the defendant plead, and give a rule to reply, before the expiration of that time, the rule to reply will be of no avail, unless he give notice of his plea. If the rule, in either court, be not given till four terms have elapsed after plea pleaded, the plaintiff must have a term's notice of the defendant's intention to give it, unless the cause hath been stayed by injunction or privileges: which notice must be given before the essoin day of the term"; and it is usual to give the rule, on the day after the term is expired". The rule to reply expires in four days exclusive after service, in the King's Bench; and sunday or any holiday on which the court does not sit, or the office is not open, if it be not the last, is to be accounted a day within the rule. If the plaintiff do not reply within the time limited, or obtain an order for further time, which may be obtained on a judge's summons, in like manner as an order for further time to plead, the defendant may sign a judgment of non pros; and it is not necessary for him, in the King's Bench, to demand a replication, the service of the copy of the rule being deemed, in that court, a demand of itself: but in the Common Pleas, a replication must be demanded in writing, by the defendant's attorney; after which, if a replication be not delivered, or filed at the prothonotaries office, in due time, he may sign a judgment of non pros. This is a final judgment, and signed on a ten-shilling stamps; on which the defendant may tax his costs, and take out execution'. Within the time limited by the rule to reply, or order for further time, the plaintiff either admits the plea to be well founded, in point of fact as well as law, and discontinues his action", enters a nolle prosequi, stet processus, or cassetur billa vel breve, or, in an action against an executor or administrator, takes judgment of assets in futuro', &c.; or admitting the fact, he denies the law by a demurrer; or admitting the law, he denies the fact, or confesses and avoids it, or concludes the defendant by matter of estoppel. If the plaintiff perceive that he cannot maintain his action, it is usual for him to take out a rule for leave to discontinue. Discontinuance in a civil suit, is either of process, or of pleading. The former, before judgment, is the act of the clerk; but after judgment, it is the act of the court: the latter, of which something has been already said", is the act of the party. The process, or proceedings in a suit, should be regularly continued from term to term, or from one day to another in the same term, between the commencement of the suit and final judgment; and if there be any lapse or want of continuance that is not aided, the parties are out of court, and the plaintiff must begin de novo. Before declaration, there is, properly speaking, no continuance"; though we have seen, that the parties by consent might have obtained a day before declaration, which was called a dies datus prece partium: After declaration and before issue joined, the proceedings are continued by imparlance; after issue joined, and before verdict, by vicecomes non misit breve; and after verdict or demurrer, by curia adversari vult". In the King's Bench, the practice is never to enter continuances, till the plea roll is made up, though the declaration be of four or five terms standing. And after plea pleaded, though the plaintiff have day to reply for several terms, yet no mention need be made on the roll, of any imparlance or continuance. After judgment by default, and writ of inquiry awarded, there is no subsequent continuance between the parties, in the Common Pleas' but in the King's Bench, it is otherwise. Continuances may be entered at any time: And in a late case, the court granted leave to enter continuances after verdict, in order to arrive at the justice of the case". The want of a continuance is aided. by the appearance of the parties. And as a discontinuance can never be objected pendente placito", so after judgment, it |