What sum monses are to be stamped. When order Summons of any judge of any of the courts at Westminster (except for any particulars of plaintiff's demand, or for any stay of proceedings on payment of debt and costs, or for time to plead, reply, or rejoin, or on the application of any prisoner or insolvent debtor) to be stamped with a 1s. stamp. The order with a 2s. 6d. stamp. 44 Geo. 3. c. 98. Issuable Plea within the Meaning of an Order. When the defendant is under a judge's order to plead to plead issu- issuably, and pleads a plea which is not issuable, the ably. plaintiff may consider it as a mere nullity, and sign judg Nil debet and nul tiel record pleaded after an order. Tender, &c. Demurrer. Special de murrer. ment. The judge's order does not confine the defendant to plead the general issue. 1 Burr. 605. To an action on the judgment, on an order to plead issuably, rejoin gratis, and take short notice of trial for the next assizes; the defendant pleaded nil debet, and nul tiel record: the master was of opinion, that these were issuable pleas under the order; that you might go to trial on the first, and give the day to produce the record the first day of the next term, in the replication. A plea of tender has been deemed an issuable plea, 1 Burr. 59. Kilwick v. Maidman. And the general issue, and statute of limitations is held an issuable plea within the order. Rucker v. Hannay, 3 Term Rep. 124. contra 2 T. R. 390. Studholm v. Hodgson. A plea of stat. 23 H. 6. c. 10, is within the order. 1 Burr. 605. But where the defendant being under an order to plead issuably, and he pleaded several pleas, all of which were issuable, except one, plaintiff signed judgment, as for want of a plea; the judgment was held regular, because one plea was pleaded in disobedience of the order. Waterfall v. Glode, 3 Term Rep. 305. A real and fair demurrer is an issuable plea within the meaning of a judge's order, but a sham demurrer is not. Gray v. Ashton, 3 Burr. 1788. Where the defendant was advised, that he had substantial ground of demurrer, the court set aside the judgment signed as for want of a plea upon terms. 7 T. R. 530. 1 East. 414. (a) S. C. A judgment recovered in another court, or a plea in abatement, 1 Burr. 59. or a special demurrer, is not a plea within such an order. Berry v. Anderson, 7 Term Rep. 530. The meaning of the term pleading issuably is not mere- The meaning ly pleading a plea on which issue may be taken, but of pleading such an one as goes to the merits: therefore the plea of issuably. alien enemy, is not such a plea. Simeon v. Thompson, 8 Term Rep. 71. It must be such a plea as the plaintiff may go to trial upon. Foster v. Snow, 2 Burr. 782. If a defendant be under terms of rejoining gratis, and If a real cause there is a real cause of demurrer to the replication, he may demur. may demur. 2 Str. 1185. Dewey v. Sopp. If an executor be not confined by a judge's order to Executors. plead, no judgments confessed after rule to plead expired: he may plead such judgments confessed before, being issuable pleas. Vide Barn. 330. Hughes v. Pellett. WHEN DEFENDANT OUGHT TO PLEAD. IF a declaration be delivered de bene esse, on common Common proprocess, he is to plead in eight days after filing or delive- cess. ry. R. Trin. 22 Geo. 3. If de bene esse on special bail, if the action be laid in In town. London or Middlesex, and the defendant lives within twenty miles of London, then to plead in four days (provided a plea is demanded.) ibid. The defendant in a country cause is entitled to eight In the coundays notice to plead, although he has appeared, and is try. resident about two miles from London, Holland v. Cooke, 1 Maule and Selw. 566. If the venue is laid in any other county, or the defen- If above 20 dant lives above 20 miles from London, eight days. miles. Ibid. If entitled to an imparlance, to plead within the first four days of the next term, in all cases. If plaintiff files common bail according to the statute, If plaintiff and then declares, defendant has four days to plead, (if files common declaration be delivered four days before the end of the bail, term in which the writ is returnable,) and the venue is laid in London or Middlesex, and the defendant lives within 20 miles of London. But if the venue be laid in the country, or the defendant lives above 20 miles from London, then eight days. Vide Rule, Trin. 22 Geo. 3. If declaration be delivered or filed with notice to plead within the first four days of term, the defendant has all On an order to amend. Residence in Arrest in Lon- If rule expires on Sunday. Sunday or a holiday. Abatement. If last day If injunction. the morning of the fifth day to plead, and judgment cannot be signed till the opening of the office of the afternoon of that day. But in any other part of the term, if the defendant do not plead within the four days, the plaintiff may sign judgment in the morning of the fifth day. Shepherd v. Mackreth, E. 35 Geo. 3. If there be an order to amend, the defendant shall have two days exclusive, to alter his first plea, or plead a-new. It appeared that defendant (whose usual residence was in Scotland) was arrested while casually in London, where he put in bail: the declaration was delivered to plead in four days, instead of eight: and on motion for an imparlance, Lord Mansfield said, no doubt but that it ought to be four days only; it should be deemed a residence in London where arrested. Cutiff and another v. Gascoigne, 4 Term Rep. 553. If rule expires on Sunday, defendant has all the next day to plead. Str. 86. Anon. Sunday, or any day on which the court does not sit, is to be accounted as one of the four days, unless it happens to be the last. N. on R. E. 5 Ann. T. 1 Geo. 2. If defendant pleads in abatement, he is to plead in four days inclusive of both days, whether rule to plead be given or not. Jennings v. Webb, 1 Term Rep. 277. 690. Brandon v. Payne. If the last of the four days happen on a Sunday, the defendant may plead in abatement the next day. Lee v. Carlton, 3 Term Rep. 642. If the cause has been stayed four terms by injunction, no need of a whole term's rule to plead. Definition. Imparlance, what is said to be. IMPARLANCE. Emparlance or imparlance, is a desire or petition in court of a day to consider, or advise, what answer the defendant shall make to the action of the plaintiff; and nothing else but the continuance of the cause till a further day. Imparlance is said to be when the court gives the party leave to answer at another time, without the assent of the other party. Com. Dig. title Pleader, (D. 1). But the more common signification of imparlance, is time to plead, 2 Show. 310. 2 Mod. 62; and it is either general without saving to the defendant any exception, which is always to another term, Mod. 28; or special, which is sometimes to another day in the same term, 6 Mod. 8. with a saving of all exceptions to the writ, bill, or count, or of all exceptions whatsoever: which latter is called a general imparlance. The general imparlance is of course where the defendant is not bound to plead the same term; but a special imparlance is not allowed, without leave of the court. After a general special imparlance, the defendant may not only plead in abatement, of the writ, bill, or count, but also privilege. 1 Lev. 54. 12 Mod. 529. 5 Mod. 335. But such plea must be intituled of the term the declaration is filed. It is ordered, that a special imparlance shall not be No special imallowed the defendant without leave of this court first ob- parlance tained. Rule, E. 5 Ann. Generally, if a writ be returnable the last return of the term, and the plaintiff declares (even in a bailable action) before the essoign-day of the next term, the defendant is entitled to an imparlance of course. Philips v. Harding, T. 24 Geo. 3. without leave. If the writ be returnable before the last return of When entitany term, and declaration not filed, and notice given four led to an im days exclusive before the end of such term, the defen- parlance. dant is entitled to an imparlance. R. Trin. 22 Geo. 3. declare with Writ returnable the last day of Trinity term, on which If bail not per day, the bail were put in, but did not justify until 9th fected, may Nov. following, and no declaration de bene esse having out impar been delivered before the essoign-day of this term; motion lance. for time to plead till next term; and 1 Cromp. 130, was relied on. The court said he was not entitled to an imparlance. Buller, J. No laches can be imputed to the plaintiff for not declaring until the defendant is perfectly in court. The case cited happened in the Common Pleas; and that many of the cases published in Cromp. Pract. were hastily collected by himself, before he was at the bar, were never intended by him for publication, and were too loose to be relied on. Rule refused. Rolleston v. Scott, 5 Term Rep. 372. Hilary, im On a declaration delivered of Hilary, there may be an Declaration of imparlance to Trinity term, if defendant has not pleaded parlance to T Trinity. declaration Writ return before; for it is the course of the court to give impar able one term, lance till the day of pleading. If a writ be returnable not delivered in one term, and the declaration is not delivered before before essoign the essoign-day of the second term, the defendant is not of the next obliged to plead in the same term, but is entitled to an imparlance. imparlance (except where bail is not perfected.) If two defendants, and one cannot be found. Refused on It a writ be taken out against two defendants, and one is arrested in the term of which it is returnable, but the other cannot be met with, so that it becomes necessary to take out another writ against him, returnable in the next term, either of them are entitled to an imparlance, as the plaintiff could not declare till both were in court. 5 T. R. 372. 2 Bos. and Pul. 126. This practice, however, is confined to cases where special bail is required. Per Cur. M. 42 Geo. 3. Court refused to grant an imparlance, where the cause habeas corpus. was removed by habeas corpus. It was removed the 6th If he removes the cause from an inferior court. Arrest in Lon must plead in four days. of November, and declaration delivered the 12th. Wood v. Wenman, 1 Wils. 154. Salk. 515. When the defendant removes the cause by habeas corpus from an inferior court, and the plaintiff does not declare until the next term, the defendant is not entitled to an imparlance. Smith v. James, 6 Term Rep. 752. Motion for an imparlance, the declaration had been don, residence delivered to plead in four days, instead of eight. It apin Scotland, peared that the defendant (whose usual residence was in Scotland) was arrested while casually in London where he put in bail. The question was, whether the rule, M. 10 Geo. 2. ordering that where defendant resides above 20 miles from London, he must have eight days time to plead. Buller shewed cause, and insisted, that such rule of court extended only to persons residing in England, otherwise it might be contended that it extended to Italy as well as to Scotland. Lord Mansfield. No doubt but what it ought to be four days only; it should be deemed a residence in London, where arrested. Rule discharged. Kutiff and another v. Gascoigne, Hil. 17 Geo. 3. 4 Term Rep. 553. in (n.) Imparlance when discretionary. An imparlance seems discretionary in the judge on amendment, unless the plaintiff pays costs. So if the plaintiff keeps any deed, &c. which belongs to defendant, whereby he is to make his defence, and will not deliver it, for the law gives convenient time to make his best defence. |