delivered, or filed, and notice given four days exclusive before the end of the term, the rule to plead might have been entered, at any time during the first four days after term. The clerk of the rules, or secondaries, would indeed have accepted a rule to plead on the essoin day; but such rule could not have been entered, until the first day of term a. And now, as the proceedings may be carried on, except in certain cases, in vacation, as well as in term time, the rule to plead may be entered at any time after the delivery, or filing and notice of declaration, whether in term or vacation. A rule to plead, however, must be given, before the plaintiff can regularly sign judgment for want of a plea: and where a defective plea had been delivered, and judgment afterwards signed as for want of a plea, the judgment was set aside as irregular, for want of a rule to plead : and a rule to plead being taken out in a wrong name, is a nullity. But where a writ issued. in vacation, and a declaration was delivered, and rule to plead given, in the same vacation, but the plaintiff did not sign judgment until the ensuing term, the court of Exchequer held, that it was not necessary to give a new rule to plead, in that term. So, where a declaration was delivered, and rule to plead given, in Easter term, and judgment was signed for want of a plea in Trinity term, the court held it to be regular, though a fresh rule to plead had not been given. of that term 4. In the King's Bench, if the plaintiff amended his declaration the same term, the defendant had formerly two days, exclusive of the day of amendment, to alter his first plea, or plead de novo e; but if the amendment were made in a subsequent term, the defendant was entitled to a new four-day rule to plead f. In the Common Pleas, it seems that a new four-day rule to plead was in all cases necessary to be given by the plaintiff, on amending his declaration: but a rule was afterwards made in that courth, by which it was ordered, that "where any amendment in the declaration should be made after a rule to plead had been entered, no new rule to plead should be necessary, provided such amendment were made in the term, or the vacation succeeding the term, in or of which the rule and see Usborne v. Peonell, 1 Bing. N. R. 320. 1 Scott, 277. S. C. a Seller v. Faceby, Cas. Pr. C. P. 68. Mould v. Murphy, 1 Cromp. & M. 495. Powel v. Gay, 1 Str. 705.; and see R. M. 10 Geo. II. reg. II. (b.) K. B. f Barton v. Moore, 8 Durnf. & E. 87. Blunt v. Morris, 2 Blac. Rep. 785; and see Tidd Prac. 9 Ed. 469. 475. 708. h R. E. 1 W. IV. 5 Moore & P. 482. 7 Bing. 556. to plead had been entered; and that the defendant should have two days, exclusive of the day on which the amendment was actually made, to alter his plea, or plead de novo, unless otherwise ordered by the court, or the judge, granting leave for the amendment." And, by a general rule of all the courts a, "where an amendment of the declaration is allowed, no new rule to plead shall be deemed necessary, whether such amendment be made of the same term as the declaration, or of a different term." In the Exchequer, where the plaintiff amends his declaration, with liberty for the defendant to plead de novo, if the defendant do not plead de novo, the former plea will stand, if it be applicable to the amended declaration b. when and how made. In the King's Bench, a demand of plea might formerly have been Demand of plea, made at the time of delivering the declaration, and indorsed thereon: In the Common Pleas, a demand of plea must have been made after declaration delivered, and a rule to plead given; a demand of plea indorsed on the declaration, or made before the rule to plead was given, being deemed insufficient: But, by a general rule of all the courts 8, "a demand of plea may be made at the time when the declaration is delivered, and may be indorsed thereon." Where a cause is removed from an inferior jurisdiction by habeas corpus, and the plaintiff declares conditionally before special bail perfected, and indorses a demand of plea on his declaration, according to the above rule, special bail is waived h The plaintiff, in the King's Bench, could not formerly have signed judgment, for want of a plea, till the expiration of twenty-four hours after it had been demanded, whether the time for pleading were or were not expired when such demand was made i; and, in that court, if a plea were demanded on Saturday, the defendant had twenty-four hours to plead, after the demand, exclusive of Sunday: but judgment might have been signed at any time after the twenty-four hours were expired, provided the time for pleading were then out; and At what time judgment may be signed, after. therefore, if the plea had been demanded in the morning, the plaintiff was not obliged to wait until the opening of the office, in the afternoon of the following day a. In the Common Pleas, the rule was, that after a plea had been demanded, the defendant had in all cases till the opening of the office, in the afternoon of the following day, to plead; and if he did not plead within that time, the rule to plead being expired, the plaintiff might have signed judgment b: And accordingly, by a general rule of all the courts ", " judgment for want of a plea, after demand, may in all cases be signed at the opening of the office, in the afternoon of the day after that on which the demand was made, but not before." If a plaintiff treat a plea as a nullity, and sign judgment as for want of a plea, he so treats it for all purposes; and cannot afterwards say that it was merely irregular, so as to be a waiver of the demand of a plea a. a Dyche v. Burgoyne, 1 Durnf. & E. 454. b Buckmaster v. Troughton, Cas. Pr. C. P. 17, 18. Broome v. Woodward, id. 54; and see Tidd Prac. 9 Ed. 477. R. H. 2 W. IV. reg. I. § 66. 3 Barn. & Ad. 383. 8 Bing. 297. 2 Cromp. & J. 186. Hough v. Bond, 1 Meeson & W. 314. 1 Tyr. & G. 617. S. C. CHAP. XIX. Of MOTIONS and RULES; and AFFIDAVITS in support of them; and the PRACTICE of the COURTS thereon, and by SUMMONS and ORDER, at a JUDGE'S CHAMBERS, &c. HAVING treated in a former Chapter 3, of the powers of the judges How treated of. of the superior courts to make general rules, for the regulation of the proceedings therein, it is intended to treat, in the present Chapter, of motions and rules in particular cases, with the affidavits in support of them; and the practice of the courts thereon, and by summons and order, at a judge's chambers, &c. A motion is an application to the court, by counsel, for a rule or Motion, what. order b; which is either granted or refused: and if granted, is either or to shew cause. In K. B. In C. P. and For attachment. a rule absolute in the first instance, or only to shew cause, or, as it is Rules absolute, commonly called, a rule nisi, that is, unless cause be shewn to the contrary; which is afterwards, on a subsequent motion, made absolute, modified, or discharged. In the King's Bench, motions and rules are either on the crown side, or on the plea side of the court. In the Common Pleas, and Exchequer of Pleas, there is no crown sidea: But in these latter courts, as well as in the court of King's Bench, a rule for an attachment, which is of a criminal nature, may be moved for, in cases of contempt, &c. Motions and rules on the plea side of the court of King's Bench, and in the Common Pleas and Exchequer, are common or special. Common rules are first, such as are given by Common rules. the master, filacer, clerk of the papers, or clerk of the errors, in the King's Bench; or by the prothonotaries, filacers, or clerk of the errors, a Chap. II. p. 27, &c. The application to a court by counsel, is called a motion; and the order made by a court on any motion, when drawn into form by the officer, is called a rule. Wynne Eunom. Dial. II. §. 26. And for a general account of the practice of the courts on motions in civil suits, see id. § 25, &c. C As to motions and rules in general, and affidavits in support of them, &c. see Tidd Prac. 9 Ed. 478, &c. d Hodgson v. Temple, 5 Taunt. 503. 1 Marsh. 166. S. C. e For these cases, see Tidd Prac. 9 Ed. 478, 9. Declared to be unnecessary. Rules obsolete, or virtually abolished. in the Common Pleas; or by the clerk of the rules in the Exchequer : Secondly, such as are obtained as a matter of course, and entered with the clerk of the rules, in the King's Bench and Exchequer, or secondaries in the Common Pleas, on a præcipe, or note of instructions, made out by the attornies who apply for them; and are not founded on any motion in court, either real or supposed: Thirdly, such as were anciently moved for by the attornies at side bar, in the King's Bench and Exchequer; or, in the Common Pleas at side bar, on the first day of term, and in the treasury chamber, on other days; and are thence called side bar, or treasury rules a: Fourthly, such as are drawn up by the clerk of the rules in the King's Bench and Exchequer, or secondaries in the Common Pleas, without being moved for in court, on producing a motion paper signed by counsel, or a serjeant, or a judge's or baron's order, &c. Of the first two classes of common rules, some have been declared to be unnecessary, by general rules, made by all the judges, for rendering the practice uniform b; as the rule for trial by proviso; the rule to declare, except upon removals from inferior courts; the rule to plead, after amending the declaration; the rule to rejoin, where the plaintiff took issue on the defendant's pleading, or traversed the same, or demurred, so that the defendant was not let in to allege any new matter; and the rule for judgment on the return of a writ of inquiry, or on a verdict, or nonsuits. Besides the rules which have been expressly declared to be unnecessary, some others have become obsolete, or been virtually abolished, in consequence of the alterations which have been made in the practice of the courts, by recent statutes and regulations. The rules which have become obsolete are, the rule for attornies, and officers of the court, to appear and plead to bills filed against them; or to take a bill against an attorney off the file1; the rule for the increase, or sale of issues, on writs of distringas, in actions by original, or against persons having privilege of parliament1; or for b R. H. 2 W. IV. For these rules, see R. H. 2 W. IV. reg. 1. § 71. 3 Barn. R. H. 2 W. IV. reg. 1.§ 38. 3 Barn. R. H. 2W.IV. reg. 1. § 42. 3 Barn. & Ad. 379. 8 Bing. 294. 2 Cromp. & J. 179, 80; and see Tidd Prac. 9 Ed. 469. 475. 708. R. H. 2 W. IV. reg. 1. § 108. 3 Barn. & Ad. 390. 8 Bing. 305. 2 Cromp. & J. 198; and see Tidd Prac. 9 Ed. 718. BR. H. 2 W. IV. reg. I. § 67. 3 Barn. & Ad. 383. 8 Bing. 297, S. 2 Cromp. & J. 186.; and see Tidd Prac. 9 Ed. 483. 581. 903, 4. 3 Rep. C. L. Com. 43. h Tidd Prac. 9 Ed. 323. 483. i Id. 484. * Id. 110. 486, 7. 1 Id. 119. |