PRACTICE OF THE COURTS OF KING'S BENCH AND COMMON PLEAS, IN PERSONAL ACTIONS: TO WHICH ARE ADded, THE LAW AND PRACTICE OF EXTENTS; AND THE RULES OF COURT, AND MODERN DECISIONS, IN THE EXCHEQUER OF PLEAS. IN TWO VOLUMES. VOL. II. THE SEVENTH EDITION: CORRECTED AND ENLARGED. BY WILLIAM TIDD, Esq. OF THE INNER TEMPLE, BARRISTER AT LAW. LONDON: PRINTED FOR J. BUTTERWORTH AND SON, AND H. BUTTERWORTH, FLEET CHAP. XXVII. Of REPLICATIONS, and SUBSEQUENT PLEADINGS. WHEN the defendant has put in his plea, he may rule the plaintiff to reply, by obtaining a rule from the master, in the King's Bench, on the back of the plea; which is entered with the clerk of the rules, and a copy served on the plaintiff's attorney: In the Common Pleas, the rule to reply is given on a præcipe, with the secondaries; and in that court, the defendant in ejectment may give a rule to reply, and non pros the plaintiff for want of a replication, but can have no costs. This rule, the entry of which is subject to the stamp duty of half a crown, may be given at any time in term, or within sixteen days after, in the King's Bench or Exchequer ; and in the Common Pleas, when time to plead has been obtained, if the defendant plead, and give a rule to reply, before the expiration of that time, the rule to reply will be of no avail, unless he give notice of his pleaf. If the rule be not given till four terms have elapsed after plea pleaded, the plaintiff must have a term's notices of the defendant's intention to give it, unless the cause hath been stayed by injunction or privilege: which notice must be given before the essoin day of the term'; and it is usual to give the rule on the day after the term is expired. The rule to reply expires in four days exclusive after service, in the King's Bench; and Sunday or any holiday on which the court does not sit, or the office is not open, if it be not Append. Chap. XXVII. § 1. 2 Blac. Rep. 763. © Ante, 487. * Imp. K. B. 345. And the practice is the same in the Common Pleas, except that after Easter term, the rule must be given in Len days. Imp. C. P. 343. e R. H. 16 Geo. III. in Scac. Man. Ex. Append. 220. f 1 New Rep. C. P. 273. Append. Chap. XXVII. § 3. h R. T. 5 & 6 Geo. II. (b). K. B. k Imp. K. B. 345. the last, is to be accounted a day within the rule. If the plaintiff do not reply within the time limited, or obtain an order for further time, which may be obtained on a judge's summons, in like manner as an order for further time to plead, the defendant may sign a judgment of non pros; and it is not necessary for him, in the King's Bench, to demand a replication, the service of the copy of the rule being deemed in that court a demand of itself but in the Common Pleas, a replication must be demanded in writing, by the defendant's attorneyd; after which, if a replication be not delivered, or filed at the prothonotaries office, in due time, he may sign a judgment of non prose. This is a final judgment, and signed on a ten shilling stampf; on which the defendant may tax his costs, and take out exetion®. Within the time limited by the rule to reply, or order for further time, the plaintiff either moves the court to set aside the plea, if unfounded; or admitting it to be well founded, in point of fact as well as law, he discontinues his actions, enters a nolle prosequi", stet processus, or cassetur billa vel breve, or, in an action against an executor or administrator, takes judgment of assets in futuro*, &c. ; or admitting the fact, he denies the law by a demurrer; or admitting the law, he denies the fact, or confesses and avoids it, or concludes the defendant by matter of estoppel. If the defendant plead in abatement after a general imparlance, or to the jurisdiction of the court after a special imparlance, the plaintiff, we have seen', may sign judgment, or apply to the court by motion to set aside the plea. We have also seen, that when it is doubtful whether the plea be issuable, the better way in term time, is to move the court to set it aside" And in general, if it be not clear that a bad plea may be considered as a nullity, the safest course is not to sign judgment, but to take issue thereon, demur, or move the court to set it aside. Where the defendant pleads a release, fraudulently obtained from the nominal plaintiff, to the prejudice of the party really interested, and for whose benefit the action is brought, or from one of several plaintiffs to the prejudice of the rest, the court on motion will set aside the plea, and order the release to be delivered up to be cancelled: Thus, where the obligor of a bond, after notice of its being assigned, took a release from the obligee, and pleaded it to an action brought by the assignee, in the name of the obligee, the court of Common Pleas set the plea aside; and under these circumstances, would not allow the obligor to plead payment of the bond. So, if a person who is sued by a landlord, in the name of his tenant, procure a release from the nominal plaintiff, the court will order the release to be delivered up, and permit the landlord to proceed And where a landlord, with the permission of his bailiff, who had made a distress for rent, commenced an action, in the bailiff's name, against the sheriff, for taking insufficient pledges, and the bailiff afterwards, without the landlord's privity, executed a release to the sheriff, who pleaded it puis darrein continuance, the court of Common Pleas set aside the plea, and ordered the release to be delivered up to be cancelled. So a plea of release by one of several plaintiffs was set aside by the court of King's Bench, without costs, on the terms of indemnifying the plaintiffs, who had released the action, against the costs of it, although the consent of such plaintiffs had not been obtained before action brought; it appearing that no consideration had been given for the release, and that the plaintiffs sued as trustees for the creditors of an insolvent person. But except a very strong case of fraud be made out, the court will not controul the legal power of a co-plaintiff to release the action: And unless the plea be set aside, a judge at nisi prius has no equitable jurisdiction, and can only look to the strict legal rights of the parties upon the record: Therefore if, in an action for goods sold, the defendant prove a receipt in full signed by the plaintiff, evidence cannot be admitted, by way of answer to this defence, that the plaintiff had assigned all his effects for the benefit of his creditors, that the action 2 Ante, 582. 1 Bos. & Pul. 447. and see the case of Craib and wife v. D'Aeth, T. 30 Geo. III. 7 Durnf. & East, 670. (b). * Doug. 407. and see 7 Durnf. & East, 670. (a). 1 Bos, & Pul. 448. (a). d 7 Taunt. 48. 1 Chit. Rep. 390. f 5 Taunt. 421. |