The Practice of the Courts of King's Bench and Common Pleas, in Personal Actions, and Ejectment

When a rule to plead has been once entered, and the cause stands over to another term, without any further proceeding, a new rule to plead should regularly be entered for that term, to entitle the plaintiff to sign judgment, unless a judge's order has been obtained for time to plead ;(6) for judgments ought in general to be entered the same term in which rules are given.(c) 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 entered :(e) And in the Common Pleas, we have seen,(ƒ) 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.(g)

The demand of plea is a notice in writing from the plaintiff's attorney;(h) and, except when the defendant is in custody of the sheriff, (ii) and the plaintiff has declared against him as being in that custody, (kk) or is in custody of the warden of the Fleet,() or bound down by a judge's order for time to plead, (mm) or the declaration has been amended, (nn) must be made in every case where the defendant has appeared,(00) 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.(q) In country causes, the demand of plea must be made, in that court, on the agent in town, (r) if there be one; or if not, on the attorney in the country :(s) 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 show cause on one of the defendant's bail, and that the other was not to be found.(t)

[ *476]

*In the King's Bench, a demand of plea may be made at the time of delivering the declaration, (a) and indorsed thereon:(bb) 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. (cc) But, (b) Ante, 474.

(d) 2 Salk. 517, 18, 520. R. M. 10 Geo. II. reg. 2, (6), K. B. Yates v. Edmonds, T. 35 Geo.

III. K. B.

(e) 2 Chit. Rep. 332.

(ƒ) Ante, 469.

(g) 2 Bur. 660. Doug. 71. Barnes, 238. Pr. Reg. 26, S. C. 2 Blac. Rep. 784. Ante, 461. (h) Append. Chap. XVIII. & 10; and see N. M. 1 Geo. II. C. P. Pr. Reg. 280.

(1) Imp. C. P. 7 Ed. 231. Ante, 359.

(mm) 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.

(nn) 3 Barn. & Ald. 137.

(oo) 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).

(9) 8 Taunt. 33. 1 Moore, 464, S. C.

(8) Pr. Reg. 281.

(a) 6 Durnf. & East, 689. 1 Dowl. & Ryl. 186.

(cc) Sweet v. John, H. 55 Geo. III. K. B. 1 Chit. Rep. 735, 6, (a).

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, (d) or made before the rule to plead is given, (e) being deemed insufficient: And it cannot be made, in either court, before the defendant has appeared:(f) and after the plaintiff has entered an appearance, or filed common bail for him according to the statue, (g) or when the defendant is in custody of the sheriff, (h) and the plaintiff has declared against him as being in that custody, (2) or is in custody of the warden,(k) or bound down by a judge's order for time to plead,(?) 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, (n) or puts in a plea which is considered as a nullity, (o) as a plea in abatement of a term subsequent to the declaration, without an imparlance,(pp) or the plea of non assumpsit in an action of debt,(qq) or nil debet in assumpsit,(rr) 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.(88) In general, the demand of a plea is a waiver of the justification of bail (tt)[A] 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 the body was regular, the added bail not having justified within the time for which indulgence was given.(u)

*The plaintiff, in the King's Bench, cannot sign judgment for [ *477 ] want of a plea, till the expiration of twenty-four hours after it has been demanded, whether the time for pleading be or be not expired, when such demand 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.(b)[B] But judgment may be signed

(d) Barnes, 276.

(e) 4 Taunt. 51.

(ƒ) 1 Durnf. & East, 635. Per Cur. E. 44 Geo. III. K. B. 5 Dowl. & Ryl. 609. (g) R. T. 1 Geo. II. K. B. 8 Durnf. & East, 465. 5 Barn. & Cres. 763. Barnes, 249. 2 Bos.

& Pul. 218.

(h) 1 Durnf. & East, 591. 6 Durnf. & East, 524. Ante, 347; but see 2 Bos. & Pul. 367. (i) 2 Barn. & Cres. 803. (k) Imp. C. P. 7 Ed. 231. Ante, 359.

(2) 4 East, 571. Taylor v. King, H. 31 Geo. III. C. P. Imp. C. P. 7 Ed. 231. 1 Taunt. 538, S. P. 2 Moore, 220.

(m) 3 Barn. & Ald. 137.

(n) 1 Chit. Rep. 735. Imp. C. P. 7 Ed. 420; but see 1 Bos. & Pul. 341. 1 Chit. Rep. 735, (a), semb. contra.

(o) 1 Chit. Rep. 736, (c).

(pp) 4 Durnf. & East, 520. 2 Smith, R. 393; but see 3 Barn. & Ald. 259. 1 Chit. Rep. 704, S. C.

(99) 6 East, 549. 14 East, 442. 4 Taunt. 164. 1 Chit. Rep. 716, in notis.

(r) Barnes, 257.

(38) 6 East, 549.

(u) 1 Dowl. & Ryl. 163; and see 4 Dowl. & Ryl. 834.

(a) 1 Blac. Rep. 50. 1 Durnf. & East, 454. 4 Durnf. & East, 118.

(b) 4 Durnf. & East, 557.

(tt) Ante, 255.

[A] A justification of bail after plea pleaded and served, does not make the plea good in a bailable action, unless the plea was served de bene esse and with notice; a plea otherwise made before bail is perfected is a nullity. Adams v. Minton, 6 Cow. 56. Waterman v. Allen, 1 Id. 60. Briggs v. Rowe, 7 Id. 508.

[B] Accord. Cock v. Bunn, 6 Johns. R. 325.

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.(c) In the Common Pleas, the rule is, that after a plea has been demanded, 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)

[ *478 ]

*CHAPTER XIX.

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 granted or refused; and if granted, is either a rule absolute in the first instance, or only to show cause, or, as it is commonly called, a rule nisi, that is, unless cause be shown 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:(aa) "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.

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. (b) 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 allocatur, (cc) or of money generally, or money and costs; or for not producing deeds in his possession, (dd) &c.: Secondly, against attorneys, for not delivering up deeds, (e) or non-payment of costs, (e) &c.; or for not performing their undertakings, (f) or otherwise mis

(d) Cas. Pr. C. P. 17, 18, 54.

(aa) 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.

(cc) Post, Chap. XL.

(dd) Post, 487; and see 8 Moore, 510, 610. 1 Bing. 410, 464, S. C.

(e) Ante, 86, 7.

(ƒ) Ante, 86, 227, 241.

behaving themselves:(g) Thirdly, against *officers of the court, [*479 ] for extortion, (a) or neglect of duty :(a) Fourthly, against inferior judges and officers, for acting unjustly, oppressively, or irregularly, in the execution of their duty;(bb) or for disobeying the king's writs, issuing out of the superior courts, by proceeding in a cause, after it has been put a stop to, or removed by writ of prohibition, certiorari,(cc) habeas corpus,(cc) supersedeas, or error,(dd) &c.: Fifthly, against sheriffs, or other persons having the execution of writs, for not returning them,(ee) or bringing into court the body of the defendant, (ff) &c., on being served with a rule for that purpose: Sixthly, against gaolers, &c., on the Lords' act, for extortion or oppression :(gg) Seventhly, against jurymen, in collateral matters relating to the discharge of their office, such as making default when summoned; refusing to be sworn, or to give any verdict; eating or drinking, without leave of the court, and especially at the cost of either party, and other misbehaviours or irregularities of a similar kind:(h) but not in the mere exercise of their judicial capacities, as by giving a false or erroneous verdict :(h) Eighthly, against witnesses, for not attending on a subpoena ;(i) refusing to be sworn or examined, or prevaricating in their evidence when sworn :(k) But, in the Common Pleas, it was not formerly usual to grant an attachment against a witness, for non-attendance upon a subpoena; and it cannot now be had, unless a clear case of contempt be made out against him, the party aggrieved being left to his remedy by action:(1) Ninthly, against peers of the realm, or members of the house of Commons, for disobeying a subpœna,(m) or other process;(n) but they are not liable to be attached, for non-payment of money, pursuant to an award:(0) Lastly, against other persons, for contempts committed in the face of the court, not only by an actual breach of the peace, or rude and contumelious behaviour, but also for any other heinous misdemeanour, as by a party's giving false, trifling, and contradictory answers, upon an examination in court, concerning his ability to be bail for another, in an action depending in court;(p) or for contempts committed out of court; as for a rescue, (g) or contemptuous words spoken of the court, or its process;(r) or for using undue means to execute process;(8) or not performing an award,(t) &c.

If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any further proof or examination:(u) but otherwise it is

usual to *apply to the court, on an affidavit of the circumstances, [ *480] for a rule for an attachment; which is either absolute in the first

(0) Ante, 192, Post, Chap. XXXVI.

(dd) Post, Chap. XLIV.
(f) Ante, 311, 12, 314.

13, &c.

(k) 4 Blac. Com. 284.

5 Taunt. 260. 6 Taunt. 9. 1 Marsh.

(n) 1 Bur. 63.

(p) Cro. Car. 146. 1 Chit. Rep. 116; and see 5 Taunt. 776. Ante, 274.

(q) Ante, 236, 7.

(8) 2 Ken. 372.

(u) 4 Blac. Com. 286.

(r) Ante, 169, 70.

(t) Post, Chap. XXXVI.

instance, or only to show cause. The rule for an attachment, in the King's Bench, for non-payment of costs, pursuant to the master's allocatur, is absolute in the first instance, although four terms have elapsed since the taxation, (a) unless it be for non-payment of costs pursuant to an award (6) But where it is for the non-payment of money generally, or of money and costs, it is only to show cause:(c) And, if a party obtain a rule for setting aside judgment and execution, on condition of his paying costs, the court will not grant an attachment in the first instance, for non-payment of them.(d) In this court, as well as in the Common Pleas, the rule for an attachment against the sheriff, for not returning the writ, or bringing in the body, is absolute in the first instance; and may be moved for the last day of term. (e) So, where contemptuous words are spoken of the court, the attachment issues in the first instance; but where they are spoken of its process, the rule is only to show cause.(f) In all other cases, the rule for an attachment is a rule nisi, in the King's Bench. And where a matter has been referred to the master, the court, on showing cause against an attachment, will not go into the accounts which were the subject of the reference; the master's allocatur being in the nature of a judgment, and the attachment like a writ of execution :(g) and besides, the party, on going before the master, enters into an undertaking to pay such sum as he shall find to be due.(h) An affidavit to support a rule for an attachment, for not paying money pursuant to the master's allocatur, must show that at the time of serving the copy, the original was shown to the defendant.(2) In the Common Pleas, all rules for attachments are rules nisi, except against the sheriff, for not returning the writ, or bringing in the body, or for non-payment of costs on the prothonotary's allocatur,(k) which are absolute in the first instance. In the Exchequer, as in the King's Bench, the rule for an attachment for non-payment of costs, on the master's allocatur, is absolute in the first instance, unless it be for non-payment of costs pursuant to an award:(1) And though, in other cases, there should in general be a rule to show cause, yet where an attorney had been ordered, by a former rule, to pay a sum of money to his client, with the costs of the application, the court granted a rule for an attachment against him, for non-payment of them, absolute in the first instance.(m)

Motions and affidavits for attachments in civil suits, in the King's Bench, are proceedings on the plea side of the court, until the attachments are granted, and are to be entitled with the names of the parties;(n) [*481] but as soon as the attachments are granted, the proceedings are on the crown side, and from that time the king is to be named as the prosecutor:(aa) And motions and affidavits for attachments are entitled (a) 1 Chit. Rep. 723.

(b) Thomson v. Billingsley, T. 37 Geo. III. K. B. 2 Chit. Rep. 57; and see 2 Blac. Rep. 892. 1 Price, 341.

(d) 2 Chit. Rep. 158.

(ƒ) Ante, 169, 70.

(h) 1 Ken. 375. Per Cur. M. 45 Geo. III. K. B.

(i) 7 Dowl. & Ryl. 612.

(e) 1 Bur. 651. 5 Bur. 2686.

(g) 1 Chit. Rep. 723.

T (k) 1 Bos. & Pul. 477. Imp. C. P. 6 Ed. 614. Append. Chap. XL. 9; but see 2 Blac.

Rep. 892.

(1) Forrest, 80. 1 Price, 341, 2.

(m) 1 Price, 341; and see 9 Price, 384.

(n) 3 Durnf. & East, 253. 7 Durnf. & East, 439, 528. 12 East, 165.

(aa) 1 Chit. Rep. 727, (a).

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