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CHAPTER XIV.

OF JUDGMENT BY THE DEFAULT OF THE PLAINTIFF.

The plaintiff in like manner as the defendant, is liable to have judgment pass against him by default, in consequence of his neglect to take the necessary steps in the progress of the cause. Thus he may be nonprossed for not declaring, replying, &c.; or after the cause is at issue, if he neglect to proceed to trial, he is liable to judgment, as in case of nonsuit. These subjects will be considered in the present chapter.

SECTION I.

OF JUDGMENT OF NONPROS.

provision.

It is provided by statute "that when a defendant shall have appeared in any suit by causing his appearance to be entered, Statutory or by putting in and perfecting special bail, where such bail is required, the plaintiff shall declare against such defendant, by the end of the next term after the return of the writ by which such suit was commenced ;" and that if he fail to declare as therein required, "judgment of discontinuance may be entered against, according to the course and practice of the court."2

1 R. St. P. 3. Ch. 6. T. 1. s. 2 Ib. s. 25. 24. Vol. 2. p. 350.

Effect.

Rule of court.

Notice.

Default and

rule for judgment.

The statute is general in its directions leaving the time and manner of declaring and of entering the judgment, to be governed by the rules and practice of the court. And it is provided by rule, that, "the defendant, having perfected his appearance, may at any time thereafter take a rule against the plaintiff to declare before the end of the next succeeding term, or that judgment of discontinuance be entered against him.”

The rule to declare and notice to the plaintiff are absolutely necessary, so that the judgment will be set aside for want of them:5 and until his default is entered, the plaintiff may declare at any time; this court having never adopted the English practice, that if the defendant do not declare in a year after the defendant's appearance, he is out of court.

The notice to declare need not specify "or that the default will be entered," but may say generally "or judgment." Where the service of the notice is at any time before the term, the plaintiff is in default, if he does not declare during the term; and although the service of the notice were upon the agent of the plaintiff's attorney, this forms no exception to the rule.

8

The plaintiff has the whole of the last day of the term to declare, and his default cannot be entered until after that day.

If the plaintiff do not declare in compliance with the rule entered, the defendant may enter his default in the book for entering common rules, upon filing an affidavit of the service of the notice;10 and he cannot be afterwards held to accept a declaration, but may at any time in term11 after four days in term have intervened thereafter, enter a rule for judgment.12

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But after the rule to declare, and before the default has been entered, the court in term, or a judge in vacation, or in term,15 may, on motion of the plaintiff, make such order enlarging the time as may be deemed reasonable.

against seve

In an action against several, on a joint obligation, contract, Action or liability, those who are brought into court may proceed to ral nonpros the plaintiff; for the plaintiffs are authorised by statute11 to proceed against those brought in, and have therefore no more excuse than in other cases.1 But it seems, in such case, that upon showing that he was endeavouring, by issuing new process, to bring all the defendants into court, time would be allowed the plaintiff to declare.16

15

13 15 Johns. Rep. 343.

if the plaintiff declare, serve a no

14 R. St. P. 3. Ch. 6. T. 6. s. 1. tice of declaration, or even take

Vol. 2. p. 377.

15 3 Caines' Rep. 98.

16 Ib. In cases not within the statute, as in actions of trespass, &c. where the process is bailable, the English practice would perhaps apply because in such case the plaintiff cannot declare against the defendants separately. 16 Johns. Rep. 44. 1 Cowen. Rep. 193. And if nonprossed by one, , he is out of court as to all. See cases cited. 1 Cowen. Rep. 177. The rule on this subject is thus stated by Mr. Tidd, pp. 469. 470. "In a joint action, it is said, the plaintiff cannot be nonprossed by one or more defendants without the others. And this is universally true in actions by original, where the plaintiff cannot proceed against the defendants severally upon a joint writ. But upon common process for a supposed trespass in the king's bench or common pleas, VOL. I.

out a rule for further time to declare, against one or more of several defendants, and do not proceed against the others, the latter may sign a judgment of nonpros. In such case, however, there ought to be but one judgment of nonpros for all the defendants, unless the plaintiff have indicated his intention of proceeding against them severally; for the trespass is joint, and though the plaintiff may declare severally, yet it remains joint till it be severed by the declaration." See Doug. 169. 2 Term Rep. 257. Salk. 455. Burr. Rep. 2418. But here, it scems, that where the process is not bailable, the defendants brought in may proceed to nonpros the plaintiff without waiting to ascertain whether it is "his intention to proceed against them severally." 3 Johns. Rep. 539.

82

Nonpros as to special count

Default in not replying, &c.

Setting judgment aside.

On a declaration containing a special count, with the common counts, the plaintiff may be nonprossed as to his common counts, for not furnishing a bill of particulars, pursuant to an order obtained for that purpose; leaving him to proceed, upon his special count."7 Furnishing a bill of particulars, after notice of motion for nonpros, is an answer to the application, provided the plaintiff pay the costs up to that time; but not otherwise.18

If the plaintiff neglect to reply, surrejoin, &c., his default may in like manner be entered, and judgment of nonpros obtained; but the rule in such case is a rule of twenty days after service, &c., and not, like the rule to declare, "before the end of the next term." 92101

If the judgment of nonpros be regular, the court will not set it aside as a matter of course; and in a qui tam or penal action, they have refused to do so.102 But it may be set aside on motion, if irregular, with all the proceedings that have been had upon it, provided the application be made in time.19

A judgment of nonpros cannot regularly be signed, pending on injunction.20 And where it was signed after the debt and costs had been paid, the court set it aside, although the defendant swore that the money was not paid with his privity." So a default entered where the pleading has been served, but not filed, is irregular.22

If the default is not set aside, the defendant may, after four days in term have elapsed, enter his rule for judgment, and after his costs have been taxed and judgment signed, issue execution for the amount.

The judgment is termed a judgment of nonpros, from the words non prosequitur, &c., formerly used in entering it up.'

103

17 5 Cowen. Rep. 279.

18 Tb.

101 Rule 17.

102 Burr. Rep. 401.

19 1 Tidd. Pract. 471.

20 Bower vs. Price, K. B. cited Tidd. 471.

21 1 Chit. Rep. 142.
237 Cowen. Rep. 153.
103 Tidd. Pract. 467.

And this seems to be the proper appellation of the judgment in actions by bill: but in actions by original, where the language of the judgment, is non prosequitur breve vel sectam, it is more commonly called judgment of nonsuit;104 the terms, however, seem frequently used indiscriminately, without reference to the manner in which the suit was commenced. In the statute it is termed, generally, "judgment of discontinuance ;" but as this term has another technical meaning, it has been thought better to retain the appellation specially appropriated to the judgment.

SECTION II.

OF JUDGMENT AS IN CASE OF NONSUIT.

At common law the defendant had no mode of compelling the plaintiff to proceed to trial; though the court would grant him leave, upon motion, to proceed to trial himself, by proviso, as is termed, from the clause that was inserted in the venire.25 The practice on this subject was altered by the statute of 14 Geo. 2. c. 17, the substance of which is embraced in similar provisions in the revised statutes. It it provided, that " when an issue of fact shall have been joined in any cause, and the plaintiff' shall neglect to bring such issue to trial, according to the course and practice of the court, such court, on the application of the defendant, may give the like judgment for the defendant, as in cases of nonsuit, or may upon just terms, allow a further time for the trial of such issue."24

If the court allow further time for the trial of such issue, and the plaintiff neglects to try the same within the time so allowed,

In what

cases.

24 R. St. P. 3. Ch. 7. T.4. s. 81.

104 Ib.

33 2 Saund. 336. a. 3 Salk. 362. Vol. 2. p. 423,

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