plea. In that Court it appears that he may plead without noticing that he has 1. OYER. craved oyer or stating the deed; and if the plaintiff would avail himself of the deed, he should pray that it be enrolled, and should state it in his replication (b). But it is said that in the Common Pleas, if the defendant has had oyer, and omit to set it out in his plea, the plaintiff might insert it for him at the head of his plea in making up the issue (c). The Reg. Gen. Hil. T. 2 W. 4, reg. 44, expressly provides for a case of this nature, and renders the practice uniform. It orders "that if a defendant, after craving oyer of a deed, omit to insert it at the head of his plea, the plaintiff, in making up the issue or demurrer book, may, if he think fit, insert it for him; but the costs of such insertion shall be in the discretion of the taxing officer." (d) We have before remarked, that if the party craving oyer desire to avail himself in pleading of the condition of a bond, or a part of a deed not shown by the pleading of the other party, he must show the oyer and instrument on the face of his own pleading (e). If no occasion of this sort occur, it is important to consider whether or not the deed be truly described by the opponent; for by setting it out on oyer, and then pleading non est factum, an error in such description might be cured. If the deed be set out on oyer, it becomes parcel of the record (800), and the Court will adjudge upon it accordingly, though it were not strictly demandable when granted (f). Should the true effect and meaning of the deed be mis-stated in the declaration, the variance is cured and becomes immaterial, if the deed be set out on the plea on oyer, and non est factum be pleaded; for on that issue the only question at the trial is, whether the deed as set out in the plea was executed by the defendant or not, and the jury are not *competent to decide what is the legal effect of the [468] deed. In such case the defendant had better plead non est factum (g), without craving oyer; and then the question would be, whether the deed, as described in the declaration, was executed by the defendant (h). The tenor of the deed, as it appears upon oyer, is considered as forming part of the precedent pleading; and, therefore, if the breach laid in the declaration be not supported by the deed, in other words, if the deed thus set out in the plea be found to contain in itself matter of objection or answer to the plaintiff's case as stated in the declaration, the defendant's course (after setting out the deed on oyer) is to demur, not to make the objection the subject-matter of a plea (i). The defendant may demur after setting out the deed on oyer, if in the declaration any part of the deed which qualifies the contract as shown in the declaration, or which renders it dissimilar to that described in the declaration, be omitted or mis-stated by the plaintiff therein (k). (b) Id. see 11 East, 633; 5 Taunt. 707. Where the (c) Id.; Barnes, 327; Steph. 2d ed. 96, declaration was upon a certain writing, it n. (c). (d) See Jervis's Rules, 54, note (1). (e) Ante, 465. (f) 1 Saund. 316, 317; 3 Salk. 119; Doug. 476; Tidd, 9th ed. 589. (g) See the late act, 9 Geo. 4, c. 15, for amending at the trial certain variances in setting out written instruments, ante, 348. (h) 4 B. & C. 741; 7 D. & R. 257, S. C.; was held that the defendant, by praying oyer (i) 4 B. & C. 741, 750; 7 D. & R. 257, S. (k) Id.; 2 Saund. 366, n. 1. (800) Vide Cooke v. Graham's Adm'r, 3 Cranch, 234. {See 2 Har. & Gill, 86. } HI, OYER. And if it appear at the trial on non est factum that there is a variance between the deed produced and the oyer, it is fatal (1). But the defendant cannot demur on account of a variance in an immaterial part between the deed as stated in the declaration, and as set out on oyer (m). If it be material for the plaintiff in his replication, &c. to show the indenture, he may pray an enrolment, and so make it part of his replication (n). Before the recent pleading rules, Hil. T. 4 W. 4, † if the oyer were stated, the plea should in strictness be entitled of the same term as the declaration, for in contemplation of law the deed, unless denied, was in Court only during the term of which it was pleaded, and was afterwards in the custody of the party to whom it belonged, and therefore when that practice prevailed, oyer of such deed ought not in pleading to be stated to have been demanded in a subsequent term, and consequently not after a general imparlance (o). But now by that rule a plea setting out a deed on oyer is, like all others, to be dated [*469] of the very day it is pleaded. But oyer might have been *craved after a special imparlance to another day in the same term (p); and there are precedents where oyer was craved after the statement of an imparlance (q); and where the plaintiff declared in vacation before the essoign day of the following term, with analogy to the claim of conusance and pleas in abatement, a plea stating the claim of oyer might have been entitled of a term subsequent to the declaration with a special impariance, or might have been entitled generally of the preceding term (). But the recent rules put an end to imparlances, and now require that every plea be entitled on the very day it is pleaded (s). If the defendant assumed to set out the whole of the deed or condition of a bond on oyer, the whole should be stated with all recitals verbatim et literatim; and if the defendant do not set forth the whole, or state it untruly, the plaintiff may sign judgment as for want of plea (f); or may by his replication pray that the deed be enrolled, and set it forth, and then it seems may demur, for by craving oyer the defendant undertakes to set out the whole (u), or according to Reg. Gen. Hil. T. 2 W. 4, reg. 44,† he may insert the deed for the defendant. But in pleading to a bond conditioned for the performance of covenants in another deed distinct from that set out on oyer, though the party must state the deed referred to in the condition truly, or subject his plea to a demurrer, and the practice is to set forth the whole deed (2); it may perhaps suffice to state the substance of the deed and those covenants only which he has engaged to perform, averring that the indenture contains no other cove () 1 Marsh. 214; see ante, 341. (m) 1 B. & C. 358; 2 D. & R. 662, S. C. (n) 2 Stra. 1241; 1 Wils. 97; Saund. 9 b, n. 1, acc.; Barnes, 327, contra. (0) Tidd, 9th ed. 587; Steph. 2d ed. 95; 2 Saund. 2, note 2; Vin. Ab. Oyer, F.; Bac. Ab. Pleas, I. 12. See the form, 3 Bla. Com. Appendix, No. 3, acc.; 2 Ld. Raym. 970, contra. And see the precedents, 1 Saund. 3, 289. (p) 12 Mod. 99; 2 Show. 9th ed. 587. (9) 1 Saund. 3, 289. 10; Tidd, (r) 2 Wils. 411, 412; 1 T. R. 278; 7 T. R. 447, note (d); 2 Saund. 2, n. 2. (s) Reg. Gen. Hil. T. 4 W. 4, reg. and 2. (t) 1 Saund. 9 b, n. 1; 4 T. R. 370; Slater v. Horne, Tidd, 9th ed. 565; 5 T. R. 662, 663. (u) Com. Dig. Pleader, P. 1; 4 T. R. 371, note (b); 1 Saund. 9 b, note 1. But it is laid down in Tidd, 9th ed. 589, which cites 2 Salk. 602, that the plaintiff cannot demur to the plea for not setting out the whole of the deed on oyer. (x) 1 Saund. 9; 4 East, 344, 345. † See American Editor's Preface. 1 nants on his part (y); or perhaps even an allegation that the indenture con- III. OYER. tains no negative or disjunctive covenants, with an averment of general performance, would be sufficient (z); and the plaintiff might pray an enrolment, and set it forth if untruly stated (a). Certainly it would be desirable to promulgate a rule that it shall be sufficient for either party to set out only such parts of deeds or instruments as may be sufficient to sustain any charge or defence without setting forth useless matters. When oyer is prayed of a bond and the condition, it is usual in a plea not to set forth the obligatory part of the bond, but to say, "and it is read to him, &c." and then to pray oyer of the *condition, and set it forth in hæc ver- [*470 ] ba (801); but the bond ought to be entered at large as well as the condition, if the terms of the obligatory part be material to the defence (b). So, if it be material to the plaintiff that the penal part of the bond be set forth, he may in his replication pray that it may be enrolled, and set it forth (c), or under Reg. Gen. Hil. T. 2 W. 4, reg. 44, † insert the deed in the defendant's plea for him. If no use is intended to be made of the bond there is no need to pray oyer of it at all, or to enter any such prayer, but it is sufficient to pray oyer of the condition only (d); for the bond and condition are considered as distinct, the bond being complete without the condition, therefore there may be oyer of one without the other (e). If it appear to the Court that with reference to the deed as set out on oyer the defendant has pleaded a false plea, the Court will give judgment for the plaintiff upon a demurrer to the plea (ƒ). IV. IMPARLANCES. LANCES. The term imparlance, or licentia loquendi, in its most general signification, IV. IMPAR means time given by the Court to either party to answer the pleading of his opponent, as either to plead, reply, rejoin, &c. and is said to be nothing else The an but the continuance of the cause till a further day (g). But the more com- tice and mon signification of the term was time to plead (h) †. In making up the is- forms of. sue joined between the parties, and in which all the proceedings are necessa (y) 1 Saund. 317, note 2. (z) 4 East, 340, 344, note (ƒ). (a) 1 Saund. 9 b, note 1; 317, note 2. (b) Lord Raym. 1135; ante, 465, 467. (c) Carth. 301, 302; 1 Lutw. 680, 686; 1 Saund. 9 b, n. 1. (d) Lib. Plac. 209, pl. 220; 1 Saund. 9 b, note 1. (e) 1 Saund. 9 c, n 1; 290, n. 2. 119. (g) Bac. Ab. Pleas, G.; see Com Dig. Pleader, D. and id. ibid.; 1 Sel. Pr. ch. vii. sect. 3; 2 Saund. 1, note 2; Tidd, 9th ed. 462; Steph. 2d edit. 97; as to the nature of imperlances in general. In Doct. Plac. (h) 2 Saund. 1, n. 2; 2 Show. 310; (801) { A small variance between the oyer of a bond and the declaration, is not regarded; as where the words were, "or delay," and in the declaration, "or other delay," the vari ance was held immaterial. Henry v. Brown, 19 Johns. Rep. 49. } † See American Editor's Preface. cient prac LANCES. IV. IMPAR- rily stated, an entry of an imparlance between the declaration and plea was formerly frequent and sometimes necessary (i); but it was not usual in framing a plea or replication to state an imparlance separately, unless some *new matter has arisen since the former pleading when it was proper (k), as a mode of introducing and stating at what time the new matter had arisen (k). Imparlances were of three descriptions: 1st, A Common or General Imparlance; 2dly, A Special Imparlance; and 3dly, A General Special Imparlance (1). The first was without saving to the defendant any exception against the writ or jurisdiction, and was always to a subsequent term (m). In making up the issue the entry of such an imparlance might have been necessary, in order to continue the cause in Court (n); but in framing a plea such an entry of imparlance was not necessary unless the matter of defence had arisen after the declaration. In general, pleas in bar were entitled of the term of which they were pleaded, without reference to the title of the declaration; and as a plea of tender might have been pleaded as well after as before an imparlance, even such plea might have been entitled of a term subsequent to the declaration, though it was said to be more correct to entitle it of the same term as the declaration, in order to avoid the inconsistency of first praying an imparlance and then averring that the defendant has been always ready to pay (o). After the entry of such a general imparlance, the defendant might plead in bar of the action though not in abatement (p), or to the jurisdiction of the Court; and therefore, when by the practice of the Court the defendant was at liberty to plead in abatement in a term subsequent to the declaration, (as occurred when the process was returnable on the last return of a term, or even before, and the plaintiff had neglected to deliver or file his declaration four days exclusive before the end of the term, or had neglected to declare before the essoign day of that term,) the defendant must have pleaded such plea in abatement either of the same term as the declaration, or of the subsequent term with a special imparlance; and if it were pleaded of the latter without such a special imparlance, the plaintiff might have signed judgment as for want of a plea (q). [*472] But where a bill was filed in *Trinity vacation against an attorney, entitled as of Trinity term, and the defendant pleaded in abatement as of Michaelmas term, without an imparlance, the plea was held good (r). A Special Imparlance was with a saving of all exceptions to the writ, bill, or count, and after this imparlance the defendant may plead in abatement (8), but not to the jurisdiction of the Court, unless founded on a personal privilege, as that of an attorney, &c. (t). In cases where the defendant was entitled to a special imparlance, it was in the Common Pleas granted of course by the prothonotary upon an application to him within the first four days of the term (i) 2 Saund. 1, n. 2; 5 Co. 75; Tidd, 9th ed. 720. (k) See the form in a plea, and in a repli cation, vol. iii. 889 to 891. After issue, any new matter must have been pleaded puis darrein continuance. See the forms, post, vol. iii. 1244. (1) 2 Bla. Rep. 1095, 1096. And as to the different kinds of imparlances, and when and how granted, and what may or may not be done after each, see 2 Saund. 1, n. 2; Tidd, 9th ed. 462. (m) Mod. 23; 2 Saund. 2 a. (n) Ante, 470. (0) 2 Saund. 1, 2, n. 2; 1 Id. 33, note 2; Burr. 59; Tidd, 9th ed. 463. (p) 2 M. & Sel. 454. (4) 2 Saund. 1, n. 2; 4 T. R. 520; 6 T. R. 369; 7 T. R. 447, note d. (r) 3′ B. & Ald. 259; 1 Chit. Rep. 704, S. C. (s) 1 Lutw. 6, and Bac. Ab. Pleas, C. 4; 2 Bla. Rep. 1095. (1) Hardr. 365; Bac. Ab. Pleas, C. 4. LANCES. subsequent to that of the declaration; but in the King's Bench, it was said to IV. IMPARbe granted only by leave of the Court obtained by a side bar rule (u). In both Courts the special imparlance must have been stated in a plea in abatement, when it was entitled of a term subsequent to the declaration (x). The third description of imparlance, usually denominated a General Special Imparlance, was with a saving of all exceptions whatsoever (y), and could only be obtained by an application to the Court on motion within the four first days of the next term after the declaration; and it was in the discretion of the Court, governed by the particular circumstances of the case, to grant it or not; and it would not be granted in order to enable the defendant to plead to the jurisdiction if he had appeared by attorney. The prothonotary had no power to grant this description of imparlance, and a plea under a grant by him would. be a nullity, and the plaintiff might sign judgment, or at least a respondeas ouster might be awarded (z). When this imparlance had been obtained, the defendant might not only plead in abatement of the writ or count, but also personal privilege (a). In point of form this imparlance was similar to the last with the exception of the words, "saving to himself all advantages and exceptions whatsoever," and sometimes in addition to these words the following [473] are added: “as well to the writ and declaration as to the jurisdiction of this Court;" (b) but the first is the better form. If the defendant pleaded to the jurisdiction, or to the disability of the plaintiff or defendant to sue or be sued, after a general imparlance, or to the jurisdiction after a special imparlance, the plaintiff might in general either sign judgment or apply to the Court to set aside the plea, or he might demur to it, or allege the imparlance in his replication by way of estoppel: but if the plaintiff, instead of taking any of these advantages, reply to the special matter of the plea, the fault was aided (c). ces in per As regards personal actions commenced in either of the superior Courts, after Imparlanthe distinctions between the Terms and Vacations were for many purposes sonal acannulled by statute 11 G. 4, and 1 W. 4, c. 70, and 1 W. 4, c. 3, and tions now plaintiffs were, by 2 W. 4, c. 39, sect. 11, enabled to declare and expedite Vi ually abolished their actions in the vacations, it was finally settled, after some opinions and and sugdecisions to the contrary, that imparlances in such actions were virtually abol- gestions in ished (d); and Reg. Gen. Hil. T. 4 W. 4, reg. 2,† expressly orders that no entry of continuances by way of imparlance shall be made, but provides for the statement of matters that may have arisen pending the action and since the last pleading, by way of suggestion or allegation, and the forms of which statements will be found in the commencement of the third volume of this edi (u) 2 Bla. R. 1094; 2 Saund. 1, 2, note 2; R. E. 5 Ann.; Tidd, 9th ed. 462, 463. (x) 4 T. R. 520, 521; 6 T. R. 369; 7 T. R. 447, in which 1 Bla. Rep. 51; 1 Wils. 261, were overruled. In all cases the imparlance in such case should be stated in the issue, 2 Saund. I e, note 2. (y) See the forms, post, vol. iii. 889 to 892. (z) 2 Saund. 2 b, note 2. (a) Id.; 1 Lev. 54. (b) 2 Bla. R, 1094; 2 Saund. 2 a, note 2. (c) 2 Saund. 2 b, n. 2; Tidd, 9th edit. 463, 464. (d) Nurse v. Geeting, 3 Dowl. 157, 158; 1 Crom. M. & Ros. 567; Wigley v. Tomlins, 3 Dowl. 7; 3 Chitty's Gen. Prac. 103, 104. † See American Editor's Preface. lieu. |