Pleas, the defendant must, before the end of the second term, or within four days after, enter a rule for the plaintiff to declare, (2) which he obtains on a præcipe from the secondaries, and demand a declaration;(k) and if the plaintiff do not declare before the rule is out, the defendant may, at any time before the essoin day of the next term, sign a nonpros, but not afterwards;(7) and the plaintiff, we have seen,(m) is not allowed any longer time to declare, *without leave than the time limited [*459] by the defendant's rule. The demand of declaration must be in writing; (a) and, in country causes, it must be made on the agent in town.(b)

The defendant cannot sign a judgment of nonpros, before an appearance is entered: and it cannot in general be signed, unless bail be filed, or an appearance entered, of the term wherein the process is returnable;(c) and therefore it cannot be signed, where a prisoner is superseded for not declaring, &c., on filing common bail. (d) But when special bail is required, the appearance is not complete, until they are perfected :(e) and therefore, where the defendant was arrested on a bill of Middlesex, on the 22d November, and special bail was put in in Michaelmas term, and perfected in Hilary term, and judgment of nonpros was signed in Hilary vacation, the court of King's Bench set aside the judgment for irregularity; the plaintiff having been guilty of no laches, in not declaring in Michaelmas term, as the defendant was not then fully in court. (f) And the statute contemplates an available appearance only, or such an appearance as will entitle the plaintiff to declare: Therefore, where a latitat having issued against three defendants, returnable on the last day of Trinity term, but only one of the defendants being served, an alias issued, returnable on the last day of Michaelmas term, of which one other of the defendants was served with a copy, and in Hilary term following a pluries latitat issued, returnable on the last day of Hilary term, but which was not served on the third defendant, and another pluries issued, returnable on the 19th May in Easter term, of which he was served with a copy, and an appearance was entered for all the defendants, in Easter term; and the plaintiff not having declared in Trinity term, the defendant signed judgment of nonpros; the court held, that such judgment was regular, though an appearance was not entered of the term the process was returnable.(g) The judgment of nonpros, however, must be signed, in the King's Bench, within a year after the return of the writ.(h)

In a joint action, it is said, the plaintiff cannot be nonprossed by one or more of the defendants, without the others. (2) 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, if the plaintiff declare,

(i) Imp. C. P. 7 Ed. 194, 5. Append. Chap. XVII. 2 3.

(2) R. H. 9 Ann. reg. 3, C. P. Ante, 422.

(a) N. M. 1 Geo. II. C. P.

(b) Barnes, 311. Pr. Reg. C. P. 124, S. C.

(k) Id. & 4.

(m) Ante, 422.

(c) Holmes v. White, E. 11 Geo. III. K. B. 6 East, 314. 2 Chit. Rep. 37. 3 Barn. & Cres. 555. 5 Dowl. & Ryl. 352, S. C. Ante, 242.

(d) Imp. K. B. 10 Ed. 494. Imp. C. P. 7 Ed. 535. 1 Cromp. 5 Ed. 123. 5 Durnf. & East, 35. (e) 2 Chit. Rep. 37.

(g) 3 Barn. & Cres. 553.

(h) 3 Barn. & Ald. 271. 1 Chit. Rep. 669, S. C.

(f) 3 Barn. & Ald. 514.

(i) Doug. 169. Philpot v. Muller & another, T. 23 Geo. III. K. B.

serve a notice of declaration, or even take 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.(k) [*460] 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, in the Common Pleas, may declare severally, yet it remains joint, till it be severed by the declaration.(a)

The judgment of nonpros, or nonsuit, for want of a declaration, is a final judgment, and signed with the clerk of the judgments in the King's Bench, or prothonotaries in the Common Pleas; an incipitur being first made on a roll, and also on a sheet of paper, called a judgment paper: And in the Common Pleas, the defendant's warrant of attorney must be filed with the clerk of the warrants, who will mark the judgment paper.(b) Whenever the defendant obtains a judgment of nonpros, he is, as a necessary consequence, entitled to costs;(c) for which he may either take out execution, or bring an action of debt upon the judgment. It has even been holden, that an executor is liable to pay costs, upon a judgment of nonpros.(d) And the court in two cases, have ordered the costs to be paid by the plaintiff's attorney; in one of them, at the instance of the defendant, upon an affidavit that the plaintiff could not be found; (e) and in the other, at the instance of the plaintiff himself, where his attorney refused to proceed, without being furnished with money.(f)

If the judgment of nonpros be regular, the courts will not set it aside, as a matter of course; and, in a qui tam action, they have refused to do so.(g) 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: And if an action be brought on the judgment, the whole proceedings may be set aside, by one rule.(h) But where the plaintiff did not apply till after judgment was signed, in an action brought on the judgment of nonpros, the court of Common Pleas refused to set aside the latter judgment, on the ground of laches. (2) A judgment of nonpros cannot regularly be signed, pending an injunction:(kk) nor where the proceedings are stayed, by a judge's order for the delivery of the particulars of the plaintiff's demand, 7 Dowl. & Ryl. 125, 7 Barn. & Cres. 485, Post, 598. 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.(1) But where it was signed for not adjourning an essoin, cast upon a special capias, and the plaintiff took no notice of it, but delivered his declaration, and after the rule to plead was out, and a plea called for, signed judgment; the court, considering it as a trick, declared that as there was no colour for the essoin, or to expect the plaintiff to search after a nonpros, and there was no notice given of it, the plaintiff had a right to go on; and therefore they refused to set aside his judgment.(m) (k) 2 Durnf. & East, 257; and see 5 Barn. & Cres. 178. 7 Dowl. & Ryl. 619, S. C. 5 Barn. & Cres. 768. 8 Dowl. & Ryl. 592, S. C.

(a) 2 Salk. 455. Com. Rep. 74, S. C. 4 Bur. 2418. Vin. Abr. tit. Costs, 6 V. 341, contra. (b) Imp. C. P. 7 Ed. 534.

(e) Stat. 23 Hen. VIII. c. 15. 8 Eliz. c. 2,

23. 1 Durnf. & East, 373.

(d) 3 Bur. 1584.

(f) Say. Rep. 172. Ante, 86.

(h) 4 Durnf. & East, 688.

(kk) Bowser v. Price, E. 20 Geo. III. K. B.

1, 2. 4 Jac. I. c. 3. 13 Car. II. stat. 2, c. 2,

"It may not be improper in this place, to state the operation and effect of an injunction, which, we have just seen, will pre- [*461] vent the plaintiff from signing a judgment of nonpros, and how far it affects the different proceedings in the course of the suit. The general effect of an injunction in Chancery, when obtained for want of an answer before action commenced, or after action and before the defendant in equity is in a condition to demand a plea, (a) that is, before the plaintiff in equity has appeared and the defendant has declared against him, is to stay all proceedings at law, from the time of its being served; but when it is not obtained until after the defendant in equity is in a condition to demand a plea, he is permitted to demand it, and proceed to trial and judgment, being only restrained from taking out execution :(b) And even then, under particular circumstances, the injunction may be extended to stay trial, on an affidavit that the plaintiff in equity is advised and believes that the answer will afford a discovery material to his defence.(c)

In the Exchequer, the effect of an injunction for want of an answer, in a town cause, is to stay all proceedings at law, from the time it is served, until answer and further order: (d) And it is of equal force in a country cause, when the bill is filed in Michaelmas or Easter Term ;(e) but in Hilary and Trinity, which are issuable terms, there is a clause in the injunction, that if issue is or can be joined in the action, the plaintiff at law may proceed to trial thereof; but is not to enter up judgment, or sue out execution thereon:(f) and therefore, in these terms, if the plaintiff at law has so far proceeded in his action, as that he can join issue therein by his own act, as by adding a similiter,(g) in that case he is permitted to go to trial at the following assizes, and the injunction only stays judgment and execution. But though this be the ordinary practice of the court, yet cases do occasionally occur, especially in matters of title and discovery, where the court will restrain the trial at law till after answer.(h) An injunction upon the merits, in both courts, operates as a stay of all further proceedings in the cause, from the time it is granted. Taking money out of a court of law, which has been paid in by rule of court, is a breach of a common injunction, against proceeding at law :(i) but showing cause against a rule for a new trial, is not a proceeding which amounts to the breach of an injunction.(k)

(a) 16 Ves. jun. 141.

(e) Id. 220, 223; and see 1 Madd. Chan. 132,
(d) Fowl. Pr. Excheq. 1 V. 250, 51, 259.
(ƒ) Id. 249.

(g) 1 Younge & J. 404.

(h) Fowl. P. Excheq. 1 V. 260; and see 1 Campb. 561, (a), and the cases there cited. (i) 13 Price, 289. M'Clel. 103, S. C.

(k) 3 Price, 242. And see further, as to the nature and effect of an injunction, Com. Dig. tit. Chancery, D. 8, &c. 1 Madd. Chan. 130, &c. And for the cases in which the court of Exchequer will, or will not, grant an injunction after trial, for want of an answer by one of several defendants, see 3 Price, 164, 241. See also 4 Price, 346, M'Clel. 80.

*CHAPTER XVIII.

Of IMPARLANCE, and TIME for PLEADING; and of the NOTICE and RULE to plead, and DEMAND of PLEA, &c.

THE plaintiff having declared, the defendant is allowed a certain time to prepare for his defence; and that either with or without an imparlance. Imparlance is said to be, when the court gives a party leave to answer at another time, without the assent of the other party; (aa) and in this sense, it signifies time to reply, rejoin, surrejoin, &c. But the more common signification of imparlance is time to plead :(b) and it is either general,(c) without saving any exception to the defendant, which is always to another term;(d) or special, which is sometimes to another day in the same term, (e) with a saving of all exceptions to the writ, bill, or count; (f) or of all exceptions whatsoever: which latter is called a general special imparlance.(g) The general imparlance is of course, when the defendant is not bound to plead the same term; but a special imparlance is not allowed without leave of the court, in the King's Bench:(h) and the court will not grant a special imparlance, except to prevent injustice. (2) In the Common. Pleas, general imparlances are entered of course by the attorneys; and it is a rule, that "all attorneys and clerks do duly enter, or cause to be entered, imparlances or incipiturs in all causes, according to the ancient usage and custom of this court; and that the want of entering an imparlance or incipitur, in every cause wherein imparlances ought to be entered, shall be a sufficient cause for the defendant to have a further imparlance of course."(k) A special imparlance, in that court, may be granted by the prothonotaries, so as to enable the defendant to plead in abatement,

within the first four days of the next term after the delivery, or [*463] filing and notice of declaration. (a) But a special imparlance, saving all exceptions to the jurisdiction, cannot be entered with

out leave of the court.(bb)

After a general imparlance, the defendant can only plead in bar of the action ;(cc) and cannot regularly plead to the jurisdiction of the court,(cc) in abatement, (dd) or a tender and touts temps prist. It is then also too late to claim conusance, (dd) or demand oyer of a deed, (ee) &c. After a special imparlance, the defendant may plead in abatement, (f) though not to the jurisdiction of the court.(gg) And where the defendant pleaded a

(aa) Com. Dig. tit. Pleader, D. 1.

(b) 2 Mod. 62. 2 Show. 310. Barnes, 346. 2 Wms. Saund. 5 Ed. 1, e, (2).

(c) Hardr. 365. 1 Lutw. 46. 12 Mod. 529, S. C. Gilb. C. P. 183, 211. 4 Bac. Abr. 27, 3 Blac. Com. 301.

8.

(d) 6 Mod. 28.

(f) Append. Chap. XVIII. & 1.

(e) Id. 8. 10 Mod. 127. Com. Dig. tit Pleader, D. 1.

(g) For an account of the different kinds of imparlances, when and how granted, and what may or may not be done after each of them, see 2 Wms. Saund. 5 Ed. 1, (2.) 1 Chit. Pl. 4 Ed. 375, &c. 2 Blac. Rep. 1094.

(h) R. E. 5 Ann. K. B.

(i) 2

(k) R. T. 21 Car. II. reg. 2, C. P.; and see R. M. 1654, (a) Pr. Reg. 1. Cas. Pr. C. P. 78. Barnes, 224, S. C. imparlance, in C. P. see Append. Chap. XVIII. 8 2. (bb) 2 Blac. Rep. 1094. (dd) Post, Chap. XXVI. (f) 1 Lutw. 6.

Chit. Rep. 214.
14, C. P.

Id. 334. And for the note for an

(cc) 4 Bac. Abr. 29. Gilb. C. P. 184. Steph. Pl. 436. (ee) Post, Chap. XXIII.

(99) 2 Wms. Saund. 5 Ed. 1, e, (2).

misnomer in abatement, after an imparlance, thus: "And A. B. who was arrested by the name of A. C. comes, &c.," the court in one case held this to be tantamount to a special imparlance:(hh) This case, however, has since been overruled, by a subsequent determination. () And where a bill was filed in vacation against an attorney, as of the preceding term, with a special memorandum of a subsequent day in vacation, stating the cause of action to have accrued after the last day of term, and the defendant pleaded a plea in abatement, entitled of the following term, without a special imparlance; the court of King's Bench held that this was regular, and set aside a judgment signed as for want of a plea.(kk) After a general special imparlance, the defendant may not only plead in abatement of the writ, bill or count, but also privilege,(l) which is a plea to the person of the defendant, affecting the jurisdiction of the court.(m) The defendant was not formerly allowed to plead a tender and touts temps prist, after any kind of imparlance ;(n) and the reason assigned was, that by craving time, he admitted he was not ready, and so falsified his plea. But it is now settled, that a plea of tender, being an issuable plea, may be pleaded after imparlance,(o) as well as before; though, for avoiding the inconsistency above stated, it must always be entitled of the same term with the declaration :(p) and where it is pleaded after an imparlance, a judge's order must be obtained in the King's Bench, or treasury rule in the Common Pleas, (q) for leave to plead it as of the preceding term.

If the defendant plead in abatement after a general imparlance, or to the jurisdiction of the court after a special imparlance, the plaintiff may sign judgment, (r) or apply to the court by motion to set aside

the plea ;(s) *or he may demur thereto, (a) or allege the impar- [ *464 ] lance in his replication, by way of estoppel :(b) but if the plaintiff,

instead of taking any of these advantages, reply to the special matter of the plea, the fault is cured. (c)

In the King's Bench, the defendant was formerly allowed to imparl to the term next after the return of the process, unless the proceedings were by original, (d) upon a habeas corpus, for or against attorneys or other privileged persons, or against prisoners in custody of the marshal.(e) On proceedings by original, if the action were laid in London or Middlesex, and the defendant appeared before the last return of the term; or if the

(hh) 1 Blac. Rep. 51. 1 Wils. 261, S. C.

(i) 4 Durnf. & East, 520.

(kk) 3 Barn. & Ald. 259. 1 Chit. Rep. 704, S. C. (2) 1 Lev. 54. Hardr. 365. 1 Lutw. 46. 12 Mod. 529, S. C. Gilb. C. P. 185, 211. (m) 5 Mod. 335.

(n) 4 Bac. Abr. 28. Gilb. C. P. 184. Sty. P. R. 465. 2 Lil. P. R. 37. 1 Sid. 365. 2 Mod. 62. 2 Salk. 622. 1 Ld. Raym. 254. Carth. 413, 14, S. C. 1 Lutw. 238, 9. R. E. 5 Ann. (a). R. T. 5 & 6 Geo. II. (b), K. B.

(0) Dyer. 300. Freem. 134. 1 Wms. Saund. 5 Ed. 33, (2). 2 Wms. Saund. 5 Ed. 2, (2). (p) 1 Bur. 59.

(2) Barnes, 343, 351, 355, 357, 359, 361; and see 1 H. Blac. 369.

(r) 4 Durnf. & East, 520; and see 7 Durnf. & East, 298, 447, (d); but see 3 Barn. & Ald. 259. 1 Chit. Rep. 704, S. C.

(8) 6 Durnf. & East, 373. (a) Sty. P. R. 465.

3 Inst. Cler. 40. Barnes, 334. 1 Wils. 261. 1 Blac. Rep. 51, S. C. Per Cur. E. 22 Geo. III. K. B.

Green v. Simmester, H. 27 Geo. III. K. B. 6 Durnf. & East,

369. 2 Bos. & Pul. 384. 2 Maule & Sel. 484.

(b) 1 Lutw. 23. 3 Inst. Cler. 39.

(e) 1 Vent. 236; and see 2 Wms. Saund. 5 Ed. 1, e. (2).

(d) Skin. 2; but see 8 Mod. 228.

(e) R. M. 5 Ann. reg. III. (a), K. B. Gilb. K. B. 310. Gilb. C. P. 43, 182. 4 Bac.

Abr. 27.