Rule to plead, what, and with whom, when, and how entered. After judge's order for time to claration. And in the latter court it has been holden, that if a declaration be indorsed to plead in " ," it must be understood to mean within the number of days allowed by the rules of the court. The rule to plead is the order of the court; and may be entered, on a præcipe, with the clerk of the rules in the King's Bench, or secondaries in the Common Pleas, at any time after the delivery, or filing and notice of the declaration, in term time; or if the declaration be delivered, or filed and notice given, four days exclusive before the end of the term, the rule to plead may be entered at any time during the first four days after term. If the defendant obtain a judge's order for time to plead, either in the same or till the next term, the plaintiff, when the time is expired, may sign judgment for want of a plea, without giving a rule to plead ; or, if a rule has been already given, without giving a new rule. But, in the Common Pleas, a summons for further time to plead, not attended by the On essoin day. party taking it out, does not waive the necessity of a rule to plead . The clerk of the rules, or secondaries, will accept a rule to plead on the essoin day; but such rule cannot be entered until the first day of terms: and Sunday is a day within this rule, unless it be the last h plead. How formerly given. At what time judgment may be signed on, K. B. in Anciently there were two rules given in the King's Bench, of four days each; the first ad respondendum, the second ad respondendum peremptoriè1. These were afterwards converted into one eight day rule1: but now, four days only are allowed the defendant, in either court, from the time of When rule ex- giving any rule to plead ; which four days expire before, with, or after pires. the time for pleading. If they expire before, the plaintiff must wait till the expiration of the time for pleading, before he can sign judgment for want of a plea: but if they expire with or after that time, the plaintiff, in the King's Bench, is at liberty to sign his judgment, the day after the rule for pleading is out: the declaration having been regularly delivered or filed, and the defendant or his agent being called upon for a plea1. In the Common Pleas, judgment cannot be signed, for want of a plea, till the opening of the office in the afternoon of the next day after the rule to pleadTM, or day given by a judge's order for time to plead ", has expired. But if a rule to plead expire on a dies non juridicus, as on the Purification, -&c. the defendant is bound to plead on or before that day; and if he do In C. P. In Exchequer. not, judgment may be signed on the next day. In the Exchequer, the d R. T. 5 & 6 Geo. II. (b). K. B. Starkie v. Wilkes, M. 7 Geo. II. K. B. 1 Cromp. 8 Ed. 162. 4 Barn. & Cres. 386. 6 Dowl. & Ryl. 390. S. C. Barnes, 243. Cas. Pr. C. P. 67. 141. Pr. Reg. 290, 91. S. C. 1 H. Blac. 88. 7 Taunt. 587. 1 Moore, 320. S. C. and see 4 East, 571. 1 Taunt. 538. 2 Moore, 220. 7 Taunt. 587. 1 Moore, 320. S. C. rule to plead is said to be a four day rule, inclusive; and judgment may be signed, for want of a plea, on the day after it expires 2. when not. When a rule to plead has been once entered, and the cause stands over New rule, when to another term, without any further proceeding, a new rule to plead should necessary, and regularly be entered in that term, to entitle the plaintiff to sign judgment, unless a judge's order has been obtained for time to plead ; for judgments ought in general to be entered the same term in which rules are given. But when the declaration is amended in the King's Bench, if a rule to plead be entered the same term the amendment is made, though before such amendment, it is sufficient d; otherwise a new rule to plead must be enterede: And in the Common Pleas, we have seen, the defendant is entitled in all cases, on amending the declaration, to a new four day rule to plead. When the plaintiff, after giving a rule to plead, has been delayed by injunction, he may sign judgment in either court, after the injunction is dissolved, without a new rule 8. what. In what cases necessary, and in what not. The demand of plea is a notice in writing from the plaintiff's attorney h; Demand of plea, and, except when the defendant is in custody of the sheriff', and the plaintiff has declared against him as being in that custody, or is in custody of the warden of the Fleet', or bound down by a judge's order for time to pleadTM, or the declaration has been amended", must be made in every case where the defendant has appeared, or put in bail: And, in the Common Pleas, a demand of plea is necessary, after an appearance, though the defendant has not taken the declaration out of the office P. So, where a declaration was delivered on the essoin day of Hilary term, and an imparlance was given to the defendant till Easter term, when a rule to plead was given, but no demand of plea made, the court of Common Pleas held, that the plaintiff, having signed judgment in Trinity term for want of a plea, was irregular, and set aside the proceedings 4. In country In country causes, the demand of plea must be made, in that court, on the agent in town*, if there be one; or if not, on the attorney in the country: And where the defendant was beyond the seas, and his attorney dead, a rule was made absolute, that a demand of plea in the office should be sufficient; upon affidavit of service of a rule to shew cause on one of the defendant's bail, and that the other was not to be found. 2 Barn. & Cres. 803. 1 Imp. C. P. 7 Ed. 231. Ante, 359. m R. T. 5 & 6 Geo. II. (b). K. B. 4 East, 571. 1 Taunt. 538. 2 Moore, 220. and see 4 Barn. & Cres. 386. 6 Dowl. & Ryl. 390. S. C. n 3 Barn. & Ald. 137. 1 Wils. 134. 1 Bos. & Pul. 341. 1 Chit. Rep. 737. (a). P 1 Bos. & Pul. 341. but see 1 Chit. Rep. 735. Id. (a). 48 Taunt. 33. 1 Moore, 464. S. C. causes. When and how made, in K. B. In C. P. In either court. Want of, when and how waived. When a waiver of justification of bail, and when not. In the King's Bench, a demand of plea may be made at the time of delivering the declaration, and indorsed thereon: And where a rule to plead has been given, and demand of plea made, and judgment is signed of a subsequent term, there need not be a fresh demand of plea of that term, although there should be a new rule to plead . But, in the Common Pleas, a demand of plea must be made after declaration delivered, and rule to plead given; a demand of plea indorsed on the declaration", or made before the rule to plead is given, being deemed insufficient: And it cannot be made, in either court, before the defendant has appeared1: and after the plaintiff has entered an appearance, or filed common bail for him according to the statutes, or when the defendant is in custody of the sheriff, and the plaintiff has declared against him as being in that custody, or is in custody of the warden k, or bound down by a judge's order for time to plead 1, or the declaration has been amended m, a demand of plea is unnecessary. So, when the defendant pleads, without taking the declaration out of the office ", or puts in a plea which is considered as a nullity, as a plea in abatement of a term subsequent to the declaration, without an imparlance P, or the plea of non assumpsit in an action of debt, or nil debet in assumpsit, it operates in general as a waiver of the irregularity in not demanding a plea, and will enable the plaintiff to sign judgment for want of it. But where such a plea was put in without authority, by a new attorney for the defendant, without any order for changing his former attorney, the judgment which had been signed as for want of a plea, was set aside. In general, the demand of a plea is a waiver of the justification of bail: but where, after the time for putting in and justifying bail had expired, (one of the bail having been rejected,) time was given to add and justify another bail, without prejudice to the plaintiff, and in the interval he demanded a plea; the court of King's Bench held, that an attachment against the sheriff for not bringing in the body was regular, the added bail not having justified within the time for which indulgence was given ". 6 Durnf. & East, 689. 1 Dowl. & Ryl. 186. b 5 East, 547. Sweet v. John, H. 55 Geo. III. K. B. 1 d Barnes, 276. e 74 Taunt. 51. f 1 Durnf. & East, 635. Per Cur. E. 44 Geo. III. K. B. 5 Dowl. & Ryl. 609. R. T. 1 Geo. II. K. B. 8 Durnf. & East, 465. 5 Barn. & Cres. 763. Barnes, 249. Bos. & Pul. 218. h 1 Durnf. & East, 591. 6 Durnf. & East, *Imp. C. P. 7 Ed. 231. Ante, 359. in K. B. The plaintiff, in the King's Bench, cannot sign judgment for want of a At what time judgment may plea, till the expiration of twenty four hours after it has been demanded, be signed after whether the time for pleading be or be not expired, when such demand demand of plea, was made a: And, in that court, if a plea be demanded on Saturday, the defendant has twenty four hours to plead, after the demand, exclusive of Sunday. But judgment may be signed at any time after the twenty four hours are expired, provided the time for pleading be then out; and therefore if the plea be demanded in the morning, the plaintiff is not obliged to wait until the opening of the office, in the afternoon of the following day. In the Common Pleas, the rule is, that after a plea has been demanded, In C. P. the defendant has in all cases till the opening of the office, in the afternoon of the following day, to plead; and if he do not plead within that time, the rule to plead being expired, the plaintiff may sign judgment d. a 1 Blac. Rep. 50. 1 Durnf. & East, 454. 4 Durnf. & East, 118. b 4 Durnf. & East, 557. C 1 Durnf. & East, 454. d Cas. Pr. C. P. 17, 18. 54. CHAP. XIX. Motions, and rules, &c. Motion, what. Rules, moved for in court. shew cause. Of MOTIONS and RULES in general, and AFFIDAVITS in support of them; and the PRACTICE of the COURTS thereon, and by SUMMONS and ORDER, at a JUDGE's CHAMBERS. As it is frequently necessary, in the course of a suit, to apply to the court where the action is depending, or a judge of that court, it may be proper, before we proceed further, to say somewhat of the manner of doing it; and of the rules or orders of the courts, and practice by summons and order at a judge's chambers. The usual modes of applying to the court are by motion, or petition. A motion is an application to the court, by counsel in the King's Bench, or a serjeant in the Common Pleas, for a rule or order; which is either Absolute, or to granted or refused; and if granted, is either a rule absolute in the first instance, or only to shew cause, or, as it is commonly called, a rule nisi, that is, unless cause be shewn to the contrary, which is afterwards, on a subsequent motion, made absolute or discharged. To use the words of an elegant writer on the law and constitution of England: "The application to a court by counsel is called a motion; and the order made by a court on any motion, when drawn into form by the officer, is called a rule." But, besides the rules which are moved for in court, there are others made out by the officers as a matter of course, or drawn up on a motion paper signed by a counsel or serjeant. Made out by officers, of course. On crown side, In C. P. and Against parties In the King's Bench, motions and rules are either on the crown side, or on the plea side of the court. In the Common Pleas and Exchequer, there is no crown side. But, in any of these courts, a rule for an attachment, which is of a criminal nature, may be moved for in the following cases: First, against the parties to the suit, for disobedience to a rule or order of the court, by non-payment of costs, on the master's or prothonotary's allocature, or of money generally, or money and costs; or for not producing deeds in his possession, &c. Secondly, against attornies, for not delivering up deeds, or non-payment of costs, &c.; or for not performing their Officers of court. undertakings, or otherwise misbehaving themselves : Thirdly, against to suit. Attornies. a Wynne, Eunom. Dial. II. § 26. And for a general account of the practice on motions in civil suits, see id. § 25, &c. b 5 Taunt. 503. с Post, Chap. XL. d Post, 487. and see 8 Moore, 510. 610. 1 Bing. 410. 464. S. C. e Ante, 86, 7. f Ante, 66. 227. 241. Ante, 86. 88. |