3. Threlkeld v. GOODFELLOW. M. T. 1732. Ca. Prac. C. P. 78; without first ob On a motion to have the imparlance roll brought into court, and Aliter in the that a special imparlance might be entered, to enable the defendant Common Pleas to plead in abatement; the question was, whether a plea in abate- taining a special ment could be pleaded within the first four days of the subsequent impariance, term without a special imparlance, or whether a special imparlance which is granted should be granted. by the protho By the Court. It is the established practice where the declara- notaries. tion is delivered so late that the defendant is not obliged to plead in the same term, for him to apply to the prothonotary for a special imparlance, within the first four days in the succeeding term, or he cannot plead in abatement, which he would be entitled to do, on obtaining such special imparlance; but to all declarations where the defendant is to plead the same term, the defendant may plead in abatement within four days after declaration delivered, without any imparlance; but in such case, after the four days, no such plea shall be accepted, though no rule to plead be given. See Grant v. Lord Sondes, 2 Bl. Rep. 1196. (B) BEFORE DECLARATION. DOUGLAS V. GREEN. H. T. 1820. K. B. 2 Chit. Rep. 7. Defendant in this case was arrested by a wrong name, but imme- Defendant candiately informed the plaintiff of the mistake, and before declaration, not plead in filed a plea in abatement. On the following day the plaintiff de- abatement beclared against defendant by his right name, and signed judgment has been filed or as for want of a plea, the defendant having neglected to plead de delivered. пого. Defendant moved to set the judgment aside. Sed per Cur. If defendant pleads before the plaintiff declares, it is considered as no plea. Judgment has been therefore regularly signed. R. Ref. Vide 4 East, 348. (C) BEFORE APPEARANCE. WAKEFIELD V. MARDEN. M. T. 1807. K. B. 2 Chit. Rep. 8. fore a declaration Rule nisi to set aside judgment for want of a plea, on the ground A Plea in abate that a plea in abatement had been duly filed. Sed per Cur. Although the plea may have been regularly filed, yet, as the defendant has not entered an appearance, the judgment is correct. R. Dis. See 1 Tidd, 477. 663. 7th ed. ment before de fendant has en tered an appearance is a nullity, After putting in special bail deplead misaddi fendant cannot tion in abate ment; sed vide infra. Privilege may be ment, notwith V. HICKS. M. T. 1670. 2 Keb. 824; 1 Vent. 154. S. C. Per Cur. After a defendant has himself put in bail generally he cannot plead misaddition in abatement, though, if bail be put in specially, or put in by another, they may plead it in abatement. See Hole v. Finch, 2 Wils. 393; Meredith v. Hodges, 2 N. R. 453; Gould v. Barnes, 3 Taunt. 504; post, tit. Addition; Misnomer. 2. DASHWOOD V. FOLKS. M. T. 1691. C. P. 3 Lev. 343. Plea, that the defendant is privileged as custos pleaded in abate- brevium of the Court of King's Bench: replication, that he ought standing bail not to be admitted to avail himself of his privilege, because it aphas been put in. pears on the return of the capias that he has put in special bail. Demurrer to replication. In support of the demurrer it was contended, that the defendant, by the act of putting in special bail, had submitted to the jurisdiction of the court, and therefore could not avail himself of this privilege. And now bail Sed per Cur. Putting in, either special or common bail, is no admission of the jurisdiction of the court; for until bail is put in, the defendant is not in a situation to plead, nor is the plaintiff bound to declare against him. Demurrer overruled. See post, tit. Addition; Misnomer; Privilege; and 1 Ld. Raym. 249; 1 Salk. 8; Barnes, 94; Willes, 461; 3 T. R. 611. 3. SAUNDERS V. OWEN. M. T. 1822. K. B. 2 D. & R. 252. The plaintiff declared de bene esse, and demanded a plea; defendant must be put in, pleaded in abatement, but did not put in and perfect special bail until after he had pleaded. The plaintiff treated the plea as a nullity, and signed interlocutory judgment. A rule nisi was obtained to set it aside. or the plea is a nullity. But the bail in a country cause; Sed per Cur. The rule must be discharged with costs. 4. DIMSDALE V. NIELSON. T. T. 1802. K. B. 2 East, 406. After putting in and justifying special bail in the country; the need not justify defendant, on being served with a declaration, filed a plea in abatement. Notice of exception was given on the following day, in consequence of which the bail afterwards justified in court; but notwithstanding the bail having justified, judgment was signed by the plaintiff on the day after the justification, as for want of a plea, and notice given of his intention to execute a writ of inquiry. A rule nisi was now obtained to set aside the interlocutory judgment signed by plaintiff, with costs, and for a stay of proceedings. Per Cur. The defendant, after he has put in bail, is regularly in court, unless it ultimately turn out that they are unable to justify; here the defendant has done all that was in his power, and all that the nature of the circumstances would admit. Rule absolute. See 1 Salk. 98; 6 Mod. 24; 1 T. R. 635 ; 2 id. 719; 4 id. 578. 5. BINNS V. MORGAN. T. T. 1809. 11 East, 411. S. P. HOPKINSON v. HENRY. M. T. 1810. 13 East, 170. Rule to set aside an interlocutory judgment signed as for want of a Or in a town plea. After the defendant was arrested, a declaration was filed con- cause, provided ditionally on the 20th of April: the bail afterwards justified. The they be ultiplaintiff demanded a plea on the 1st of May, and on the 2d of May in due time.* the defendant filed a plea of misnomer. The question was, whether the plea was filed in proper time? Per Cur. The plea is clearly out of time; the defendant should have put in bail within the four days allowed by the practice of the court for pleading in abatement; the proceedings would then have been regular, and the bail might afterwards have been perfected. Rule discharged. See Holland v. Sladen, M. 47 Geo. 3. K. B. in notis. 11 East, 411. 6. MAUND V. MAWLEY. T. T. 1801. Excheq. For. 149. mately perfected abatement with The defendant, an attorney, was arrested in Easter vacation upon In the Excheprocess returnable on the first return of Trinity Term. Four days quer a defendant after the return of the writ he put in bail which were excepted to, must plead in and afterwards justified; immediately after which the defendant ten- in the first four dered a plea of privilege in abatement, which the plaintiff refused to days after the reaccept, and signed judgment as for want of a plea. It was contended, turn of the writ, on behalf of the plaintiff, that the rule, that a plea in abatement and justify his must be put in within four days after the return of the writ, bail, whether the plaintiff except is peremptory; and therefore if the defendant wish to avail himself to them or not. of such a plea, he must justify his bail within that time. Court, adopting this opinion, discharged the rule with costs. (E) AFTER FORFEITURE OF BAIL BOND. ANON. T. T. 1701. K. B. 2 Salk. 519. The Quere, it not overruled; vide supra. If a forfeiture of the bail bond be incurred, and the Court, as an After bail bond indulgence, stay proceedings thereon, the defendant cannot afterwards forfeited, defendplead in abatement to the original action, but must plead over to the ant cannot plead merits. in abatement to the original See Garrett v. Johnson, 2 B. & P. 465; 1 Salk. 7; Willes, 461; action. (F) AFTER A GENERAL IMPARLANCE. 1. GRANWELL V. SIBLY. E. T. 1776. K. B. 2 Lev. 190. S. P. HARKER v. MORELAND. T. T. 1696. K. B. 2 Lev. 197. DACRES V. DUNCOMB. H. T. 1671. 1 Vent. 236; 2 Lev. 82; 3 Keb. 127. S. C. BARRINGTON'S CASE. Hardres, 164. BARCELOT V. A defendant, however, cannot plead in bar until the bail are perfected; and if he plead before, the plea may be treated as a nullity, although the bail subsequently justify. 4 T. R. 578. See observations on this case by Lawrence, J. in Dimsdale v. Nielson, 2 East, 407. Matter in abate ment cannot be pleaded after a general imparl ance. And if so plead ed, the imparl ance may be replied by way of estoppel. BURTON. E. T. 1686. C. P. 1 Lutw. 22. ANON. M. T. 1669. K. B. 1 Mod. 14. HALL V. JACKSON. E. T. 1697. K. B. Comb. 479. WENTWORTH V. SQUIB. E. T. 1700. C. P. 1 Lutw. 43. CAMFIELD V. WARREN. E. T. 1699. 1 Lutw. 639. DUNCOMB V. CHURCH. M. T. 1696. 1 Ld. Raym. 93. COLVIN V. FLETCHER. E. T. 1721. K. B. 8 Mod. 43; 1 Stra. 520. S. C. NAPPER V. BIDDLE. M. T. 1735. C. P. Barnes, 334. THRELKELD v. GOODFELLOW. E. T. 1751. C. P. Barnes, 224. GRANT v. LORD SONDES. E. T. 1775. C. P. 2 Bl. Rep. 1094. EVANS V. STEVENS. E. T. 1791. K. B. 4 T. R. 224. BUDDLE V. WILLSON. T. T. 1795. K. B. 6 T. R. 369. ONSLOW V. SMITH. E. T. 1801. C. P. 2 B. & P. 385. LLOYD V. WILLIAMS. E. T. 1814. K. B. 2 M. & S. 484. In an action of debt against defendant as executrix of her husband, the defendant pleaded, after a general imparlance, that her husband had died intestate, and that administration had been committed to her absque hoc, that she was executrix, and ever administered as such. To this plea the plaintiff demurred. Per Cur. This plea is clearly a plea in abatement, and cannot therefore be pleaded after a general imparlance. Vide semb. contra, Green v. Moore, 5 Mod. 11; 2 Keb. 143. pl. 16 ; and see Dy. 210; Doc. Plac. 234; Latch. 83; Willes, 239; 1 Com. Dig. Abatement, 120; Vin. Ab. Conusance, p. 591; 1 Bac. Ab. Abatement, C; 2 Saund. 1. n. 2; 1 Chit. Pl. 423; 1 Tidd, 662. 7th ed.; 2 Arch. Prac. 1; post, tit. Addition; Attorney; Jurisdiction; Misnomer; Nonjoinder; Privilege. 2. BARCELOT V. BURTON. E. T. 1686. C. P. 1 Lutw. 23. Assumpsit for goods sold and delivered; plea, coverture in abatement; replication, that the pleaded after a general imparlance. awarded. plea is in abatement, and is Judgment of respondeas ouster See 2 Saund. 1. n. 2; Forms, 1 Lutw. 23; 3 Inst. Cl. 39; Clift. 18. pl. 46; 19, pl. 50; 20. pl. 53-4. But if the plain 3. DACRES V. DUNCOMB. H. T. 1671. 1 Vent. 235. In trover the defendant, after a general imparlance, pleaded auter tiff reply instead action pendent for the same property. of demurring, or alleging the estoppel, the defect is aided. Per Hale, C. J. Though after an imparlance the defendant cannot plead a misnomer, or the like, or ancient demesne, because this is an admission that he ought to answer the writ, yet such a plea in abatement as this may be received. But this comes not in question, because the plaintiff has replied to it, and has not demurred. See 2 Saund. 3. n; 1 Sid. 319. pl. 9; 1 Lutw. 23; 1 Com. Dig. Abatement, I. 4. BUDDLE V. WILLSON. T. T. 1795. K. B. 6 T. R. 369. Napper v. a The defendant, after an imparlance to Easter Term, pleaded in abatement, that the goods mentioned in the declaration were delivered to, and received by, the defendant and certain other persons jointly, who were his co-partners. General demurrer to plea. It was contended, that though the defendant might not in strictness be entitled to plead in abatement after a general imparlance, yet the mode adopted by the plaintiff was not the proper manner of taking advantage of the objection; that the omission to file the plea in proper time is a mere matter of irregularity, and not such a defect as could be made available on general demurrer. Per Cur. We are clearly of opinion that the plea is untenable after a general imparlance, and that judgment of respondeas ouster must be awarded. 5. DOUGHTY V. LASCELLES. H. T. 1792. 4 T. R. 520. BLACKMORe v. ever of the irregularity may be taken under age neral demurrer. The declaration in this case had been delivered before the essoign Or the plaintiff day of Michaelmas Term, entitled as of Trinity Term, with notice may sign judgto plead within the four first days of the former term: the defendant ment.* within that time pleaded a misnomer in abatement, but the plaintiff having signed judgment, a rule was obtained to set it aside. In showing cause, it was argued that the misnomer should have been pleaded not only within the first four days, but as of the precedent term; and that as it was neither pleaded as of the preceding term, nor after a special imparlance, the plaintiff was entitled to retain his judgment. The Court concurring in this opinion, the rule was discharged. See 2 Saund. 1. n. g; Jennings v. Webb, 1 T. R. 277 ; 2 Saund. 1. n. 2. HOLME V. DALBY. M. T. 1819. K. B. 1 Chitty, 704; S. C. 3 B. & A. apply to a bill 259. filed in vacation; hence a defend A bill was filed in vacation as of the preceding term, with the ant, without an usual memorandum. The defendant pleaded his privilege in abate- imparlance, may ment, entitled generally of the succeeding term, without any imparl- put in a plea in ance. Judgment was signed as for want of a plea, and a rule nisi in the first four obtained to set the judgment aside. In Doughty v. Lascelles it was said, in argument, the plaintiff might move to set aside the plea; and the observation was repeated in Buddle v. Wilson, 7 T. R. 372 ; and see 1 Chit. Pl. 448. 3ded. ; 2 Tidd, 704. 7th ed. abatement with days of the foilowing term. |