Rule to abide

issuably, strike out the special plea or demurrer, and return it with the general issue, or a general demurrera. To prevent this, if the defendant by plea, in K. B. plead a dilatory or frivolous plea, the court in term-time, or a judge in vacation b, will order him to abide by it, or plead some other plea, peremptorily, on the morrow ; or, if it be towards the end of the term, (that the plaintiff may have sufficient time to give notice of trial,) the court will order the defendant, if he will not abide by his plea, to plead another instantly, provided always that the time allowed by the common rule to plead be expired: And the practice is the same, with regard to frivolous demurrers d. The motion for these purposes is a motion of course, requiring only counsel's signature. But where the defendant is under terms of pleading issuably, he is bound to abide by his plea; and cannot afterwards strike out a special plea or demurrer, when the book is made up, and return it with the general issue. After a rule for the defendant to abide by his plea, the plaintiff cannot sign judgment as for want of a plea, without an application to the court; although such a rule will not prevent the court from allowing the plaintiff to sign judg ment f.

Proceedings thereon.

Adding special plea.

Abiding by, or withdrawing, special plea, in C. P.

When the defendant, in the King's Bench, is ruled to abide by his plea, he either abides by its, or pleads another: In the former case, he may afterwards demur to the plaintiff's replication; in the latter, he can only plead the general issue, to which, however, he may add a notice of set off: And, whether he be ruled to abide by his plea or not, it is a general rule, that the defendant cannot waive a special plea or special demurrer, but in order to plead the general issue; though leave has been given under circumstances, for the defendant to add a plea after issue joined, and even after two terms have elapsed since he first pleaded'. In the Common Pleas, the defendant must always abide by his plea, after the plaintiff has replied to it; and therefore where the plaintiff moved that the defendant might abide by his plea, the court rejected the motion as unnecessary m. But after a special plea pleaded, though the plaintiff has prepared his replication, yet the defendant in that court may the same term, before the delivery or filing of the replication, waive his spe cial plea, and plead the general issue, without paying costs": And where the defendant pleads fairly, and there has been no delay, the court on motion will at any time give him leave to withdraw a special plea, and plead the general issue, upon payment of costs, in order to let in a trial upon the merits. But where a defendant has already pleaded a tender",

or the plaintiff has been delayed, the court will not grant this indulgence; and in one instance it was denied, where the defendant had pleaded a sham plea : but in a subsequent case, where the defendant's attorney not having received instructions as to the nature of the defence to an action, pleaded a sham plea, and afterwards swore to merits, the court allowed such plea to be withdrawn on terms.

a 2 Wils. 392.

b Id. 369.

7 Taunt. 278. 1 Moore, 28. S. C.

CHAP. XXVIII.

Of REPLICATIONS, and SUBSEQUENT PLEADINGS.

Rule to reply. WHEN the defendant has put in his plea, he may rule the plaintiff to

When given.

reply a, 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. This rule may be given at any time in term, or within sixteen days after, in the King's Bench, or Exchequer ; 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 Term's notice of. notice of his plea d. If the rule 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 privilege : 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. And where a cause has stood over for several terms, the rule to reply must be given of the term in which the judgment of non pros is

Judgment of

for

non pros,
not replying.

When it expires. signed. The rule to reply expires in four days exclusive after service, in the King's Bench; and Sunday, or any holyday 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 pros1; 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 itselfm: but, in the Commen 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 o. And it seems that such judgment may be signed by one of two defendants in

trespass, who has pleaded separately; or for not replying to a plea, as to
one of several counts in a declaration b. This is a final judgment; on
which the defendant may tax his costs, and take out execution o.
Within the time limited by the rule to reply, or order for further time,
the plaintiff either moves the court to set aside the plea, if unfounded; or,
admitting it to be well founded, in point of fact as well as law, he discon-
tinues his action, enters a nolle prosequie, 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.

Proceedings of

plaintiff, after

plea.

If the defendant plead in abatement after a general imparlance, or to the Setting aside jurisdiction of the court after a special imparlance, the plaintiff, we have plea. seen, may sign judgment, or apply to the court by motion to set aside the plea. We have also seen, that when it is doubtful whether the plea be issuable, the better way, in term time, is to move the court to set it aside 1 : And in general, if it be not clear that a bad plea may be considered as a nullity, the safest course is not to sign judgment, but to take issue thereon, demur, or move the court to set it aside. When the defendant pleads a release, fraudulently obtained from the nominal plaintiff, to the prejudice of the party really interested, and for whose benefit the action is brought, or from one of several plaintiffs to the prejudice of the rest, the court on motion will set aside the plea, and order the release to be delivered up to be cancelled: Thus, where the obligor of a bond, after notice of its being assigned, took a release from the obligee, and pleaded it to an action brought by the assignee, in the name of the obligee, the court of Common Pleas set the plea aside; and under these circumstances, would not allow the obligor to plead payment of the bond'. So, if a person who is sued by a landlord, in the name of his tenant, procure a release from the nominal plaintiff, the court will order the release to be delivered up, and permit the landlord to proceed m: And where a landlord, with the permission of his bailiff, who had made a distress for rent, commenced an action, in the bailiff's name, against the sheriff, for taking insufficient pledges, and the bailiff afterwards, without the landlord's privity, executed a release to the sheriff, who pleaded it puis darrein continuance, the court of Common Pleas set aside the plea, and ordered the release to be delivered up to be cancelled ". So, a plea of release by one of several plaintiffs was set aside by the court of King's Bench, without costs, on the terms of indemnifying

Discontinuance.

Of process, or pleading.

process.

Before declaration.

the plaintiffs who had released the action, against the costs of it, although the consent of such plaintiffs had not been obtained before action brought; it appearing that no consideration had been given for the release, and that the plaintiffs sued as trustees for the creditors of an insolvent person 2. But, except a very strong case of fraud be made out, the court will not control the legal power of a co-plaintiff to release the action : And unless the plea be set aside, a judge at nisi prius has no equitable jurisdiction, and can only look to the strict legal rights of the parties upon the record: Therefore if, in an action for goods sold, the defendant prove a receipt in full signed by the plaintiff, evidence cannot be admitted, by way of answer to this defence, that the plaintiff had assigned all his effects for the benefit of his creditors, that the action was brought by his trustees in his name, that no money passed when the receipt was given, and that the plaintiff on the record and the defendant had colluded together to defeat the action.

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 a : the latter, of which something has been already said, is the act of the Continuance of 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 advisari vult1. 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 m: 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?: a 1 Chit. Rep. 390.

After declara

tion, issue, verdict, or de

murrer.

After judgment by default.

Entry of continuances.

7 Taunt. 421. and see 4 Moore, 192. 7

Moore, 356.

1 Campb. 392. and see 1 Chit. Rep. 391. in notis. 6 Moore, 497.

d Cart. 51. 1 Salk. 177. 1 Wils. 40. Id. 303. cites Com. Rep. 419.

Ante, 660, 61.

f 1 Str. 492. 1 Wils. 40.

Gilb. C. P. 40.

* Ante, 421.

i Append. Chap. XXII. § 6. 19. 41. Chap. XXX. § 2. 4. 6.

* Append. Chap. XXX. § 46. 49. 52.

1 Append. Chap. XXII. § 41. Chap XXIX. § 3, 4. Chap. XXXIX. § 3, 4.

m

n

(2).

1 Salk. 179. 2 Ld. Raym. 872. S. C.

5 Co. 75. 2 Wms. Saund. 5 Ed. 1. e.

11 Co. 6. b. Yelv. 97. 1 Rol. Abr. 486. P Ante, 162.