If the amendment be matter of form, it seems no im- As to amend◄ parlance; if in substance, costs must be paid, or impar- ment. lance. N. on R. M. 10 Geo. 2.

Within what Time Defendant is to plead, where there have been no Proceedings for four Terms, in Law or Equity.

If four terms are elapsed, after the declaration is deli- How to pro vered, the defendant shall have a whole term's notice to ceed if four plead, before judgment can be entered against him, unless terms are elapsed. the cause has been stayed by injunction or privilege. N. on R. Tr. 5 & 6 Geo. 2. In this case you give notice to the defendant, or his attorney, before the essoign-day of the term, that you intend to proceed after the next term, "by giving a rule to plead." The like rule to reply, rejoin, &c.

Two days before Hilary term, plaintiff gave notice of Notice of inhis intentions to proceed; on the 14th of February, two tention to days after Hilary term, the rule to plead was given, and proceed delivered, two on the 18th of April, in the course of the same vacation, days before the plaintiff signed judgment for want of a plea, which Hilary term. was moved to be set aside for irregularity: and it was Rule to plead, contended, that defendant ought to have had the term 13th Feb. and and vacation, as also until the four first days in Easter judgment signed for term, to have pleaded, for that no rule to plead could be given want thereof in the vacation; and if the vacation as well as the term 18th April, were not meant to be included by the rule, the judgment held regular. had been signed too soon, for it appears to be signed of Hilary term, so that there was not even a term's notice: on the contrary, it was insisted, that according to the practice of the court, the judgment was regular, for that the rule did not extend beyond the term; and though the judgment appeared to be signed of Hilary term, the defendant had in fact the benefit of the rule for a whole term. The court were of that opinion, adding, that thejudgment would appear to be regular on the record, though signed as of Hilary term: for the rule requiring a term's notice, where no proceedings have been had in the cause, was only a rule of court introduced for the benefit of the party, the full benefit of which, the defendant had had in this instance. Milbourn v. Nixon and others, 2 Term Rep. 40.

Give the rule the day after the last day of the term, and demand plea; if no plea, sign judgment after the four days are expired, exclusive.

When to give the rule and sign judg

ment.

Searching for Plea.

Special pleas are to be filed with the clerk of the papers. General pleas, or general issues, are delivered to the attorney, or entered in the general issue book kept by the clerk of the dockets; pay 6d. for the entry.

You are first to make search at the clerk of the papers in Symond's Inn, who keeps two books by the plaintiff's name; if you find no plea there, then search with the clerk of the dockets, at the King's Bench office; if there be no plea, sign judgment, the form of which see under title Judgment by Default.

Although the plaintiff be entitled to judgment, yet if he delays signing it, the defendant may put in his plea, although the time be expired, by the rules of the court, and such plea will be accepted, for a judgment upon a nil dicit is for want of a plea; and if the plaintiff signs judgment after, the court will set it aside for irregularity. Minns v. Baxter, 1 Term Rep. 17. Lill. Pract. Reg. 373.

The plea of solvit ad diem should be delivered, and not entered in the general issue book. Lockhart v. Mackreth, 5 Term Rep. 661.

PLEAS IN ABATEMENT.

A PLEA in abatement cannot be pleaded before the defendant appears, because he does not answer to the process of the court, which formerly was returned and read at the bar. If he appeared, the countor read the writ to court in his presence, and he was to plead in four days unless special leave was given by the court; because the person coming in by the process of the court, ought not to have time to delay the plaintiff. Gilb. C. P. 52.

A declaration delivered 6th Nov. to plead in a town cause on the 7th; defendant gave notice to put in and justify bail on the 9th, and on that day filed a plea in abatement, but did not justify those bail, but put in other bail the 10th, and gave notice of justifying, and plaintiff excepted same day to such second bail, but they justified the 12th and on the 19th plaintiff signed judgment for want of a plea, after demand made of one, and the court set the judgment aside. Hopkinson v. Henry, 13 East,

170.

If the defendant puts in special bail, though they be

not perfected in a country cause, he may the same day plea may be plead in abatement and perfect his bail afterwards. For filed before he is in court, unless it turn out on exception to the bail perfected. that they are set aside. Dimsdale v. Neilson, 2 East, 406. In a country cause such a plea could not be filed in time, if it was not so, for plaintiff may delay excepting to bail, for the purpose.

The practice seems now to be the same in town causes. 11 East, 413. Brains v. Morgan.

of office before

And before such plea be pleaded, (which is to be filed,) Declaration to the declaration must be taken out of the office, or the be taken out plaintiff may sign judgment. N. on R. T. 12 W. 3. M. plea. 10 Geo. 2. Reg. 3. The plea ought to be filed, and not delivered. 1 Term Rep. 278. Harbord v. Perigal.

when to be

pleaded.

Pleas to the jurisdiction of the court, or in abatement, Pleas to the ought to be pleaded before the rule for pleading is out, jurisdiction and cannot be pleaded after a common imparlance, or unless the declaration be delivered after term, or so late in the term, that the defendant is not bound to plead to it that term; in both which cases, the defendant may, within the first four days inclusive of the next term, plead any plea in abatement, or to the jurisdiction of the court (intituling it as of the preceding term,) 1 Term Rep. 278. 5 T. R. 510. But if such plea be not filed in the office in time (whethera rule to plead be given or not,) such plea is not to be received. N. on R. E. 5 Ann. Vide Comberb. 251.

Pleas in abatement must be pleaded within four days, Within time if declaration be delivered before the last four days in to plead in term. Long v. Miller, 1 Wils. 23.

The defendant having given a bail-bond to the sheriff on his arrest, and been served with notice of declaration; if he do not plead in abatement within the four first days the court will not afterwards (though before pleading in chief,) set aside the proceedings upon motion, on the ground that he had been arrested and declared against by a wrong christian name. Binfield v. Maxwell, 15 East, 159.

abatement.

lance.

A plea in abatement is bad after a general imparlance. Bad after Evans q. t. v. Stevens, 4 Term Rep. 224. and may be general impar, taken advantage of on a general demurrer, 6 Term Rep. 369. Duddle v. Wilson. (a) And it also may be taken

(a) The plea in abatement should always be pleaded the term the declaration is of, although the defendant is entitled to an imparlance. I know of no imparlance roll in this court.

Sunday when

accounted as one of the

days.

By attorney.

Four days to plead in abatement, are both in

clusive.

advantage of on special demurrer, though not assigned as a cause. Lloyd v. Williams and another, 2 Maule and Selw. 484.

Sunday is to be accounted as one of the four days, unless it happens to be the last day, Ibid. In that case the plea may be filed on the Monday; otherwise as no plea can be filed on the Sunday, the time would be limited to three days in such cases. Lee v. Carlton, 3 Term Rep. 642. Per Buller, J.

And a plea in abatement may be pleaded by attorney. 1 Ld. Ray. 509. but not to the jurisdiction. Gilb. C. P. 187.

Declaration was delivered the 16th May, and the 20th the plea in abatement was filed. Plaintiff signed his judgment, alleging it ought to have been filed the 19th. Court: All pleas to the jurisdiction and in abatement, being dilatory, ought not to be favored: and that the four days allowed for pleading them are both to be reckoned inclusive. Rule, why the judgment should not be set Leave to plead aside, discharged. But the defendant had leave to plead the general the general issue on the payment of costs. Jennings v. Webb, 1 Term Rep. 277.

issue.

What shall be

a special imparlance in pleading mis

nomer in abatement.

If plea in

The defendant pleaded a misnomer in abatement, which was after an imparlance, thus: at which day came Ham John Crapper (the defendant's true name,) who is sued by the name of John Capper, &c. to which the plaintiff demurred; and objected, that this plea in abatement ought to have been pleaded of the same term with the declaration, or after a special imparlance, and that this is after a general imparlance. But per Curiam, this imparlance, by the true name, is special for this purpose; but if he had said venit prædict. John Capper, it had been bad, for that would have confessed that John Capper was the true name. Kelw. 93, b. Judgment for defendant.-Brewster v. Capper, 1 Wils. 261.

The declaration was delivered as of Trinity-term, abatement be before the essoign-day of Michaelmas, with the usual irregular, notice to plead within the first four days of the latter judgment may term, within which time the defendant filed this plea:

be signed.

"And Lescelles Lascelles, who is sued by the name of "Sturdy Lascelles, in his proper person comes and pleads "that he was baptized by the name of Lescelles, &c. "without this, that he ever was called or known by the name of Sturdy, &c." The plaintiff considering this plea as delivered out of time, signed judgment. Motion to set it aside. Brewster v. Capper was cited. Sed per

66

cur. Such a plea as this can only be received after a special imparlance, which should be stated on the record; but that not appearing here, the plaintiff was entitled to sign judgment. Rule discharged. Doughty v. Lascelles, 4 Term Rep. 520. See Blackmore v. Fleming, S. P. 7 Term Rep. 447. in (n); where the court held that such a plea cannot be pleaded in a subsequent term without entering a special imparlance.

the rule.

Writ returnable 6th February, 1787, declaration filed If the defenthe 7th, and a rule to plead given same day: but notice dant plead in was not delivered till the 8th, and the plea filed the 15th abatement, he in abatement; plaintiff signed judgment the 16th. Rule dispenses with to set it aside for irregularity. It was contended, that the rule to plead being given before notice of declaration served, was irregular; but the court said, the party may undoubtedly dispense with the rule to plead. And here the defendant has superseded the necessity of a rule to plead, by pleading in abatement. Rule discharged. Brandon v. Payne, 1 Term Rep. 690.

Declaration filed Wednesday the 17th Feb. 1793.-The The four days 21st was on Sunday, and on 22d defendant filed a plea in are inclusive. abatement; plaintiff signed judgment, which the court

held regular: the four days are reckoned inclusively, the time expired on the Saturday. Harbord v. Perigal,

5 Term Rep. 210.

in abatement is bad, and may be demurred to.

In a special action on the case, upon the custom After a geneagainst a carrier, for the delivering goods, after a general ral imparimparlance to Easter term; the defendant pleaded in lance, a plea abatement, that several others were his partners, and that the goods were delivered and received by him and his partners jointly, and not by him solely, and that they were living-to which there was a general demurrer :court held, that the plea was bad, because pleaded after a general imparlance, but that it might have been supported if it had been pleaded in proper time. 6 Term Rep. 369. Buddle v. Wilson.

In every plea to the jurisdiction, another jurisdiction As to jurismust be stated. Mostyn v. Fabrigas, Cowp. Rep. 172. diction. They must be pleaded in person. Gilb. C. P. 187.

mesne.

Ancient demesne must be pleaded in ejectment within Ancient dethe first four days of the term. Denn on dem. Root v. Fenn, 8 Term Rep. 474. Barnes, 185. S. P. Doe v. Thomas.

Plea of ancient demesne was permitted to be filed, de bene esse within the first four days pending a rule nisi for