tion. After declara tion, issue, verdict, or de And if there were any lapse, or want of continuance, that was not aided, the parties were out of court, and the plaintiff must have begun de novo. Before declaration, there was, properly speaking, no Before declaracontinuance *; though the parties, by consent, might have obtained a day before declaration which was called a die datus prece partium ↳. After declaration and before issue joined, the proceedings were continued by imparlance; after issue joined and before verdict, by vicecomes non misit breve; and after verdict or demurrer, by curia advisari murrer. vult. In the King's Bench, there was formerly no imparlance roll; and the practice in that court was never to enter continuances till the plea roll was made up, though the declaration were of four or five terms standing: and after plea pleaded, though the plaintiff had day to reply for several terms, yet no mention was necessary to be made on the roll, of any imparlance or continuance d. In the Common Pleas, when an original was actually issued in the first instance, (which however was seldom the case,) or the proceedings were by bill filed against an attorney, or member of the House of Commons, if the defendant were entitled to an imparlance, it was formerly entered on a roll, called the imparlance roll, which was made up of the term the original writ was returnable, or bill filed; and contained an entry of the declaration or bill, and of the defendant's appearance thereto, with the prayer and grant of an imparlance. But now, by a general rule of all the courts, "it shall not be necessary that imparlances should be entered on any distinct roll." And it is Entry of conordered, by a late statutory rule of pleadings, that "no entry of continuances by way of imparlance, curia advisari vult, vicecomes non misit breve, or otherwise, shall be made upon any record or roll whatever, or in the pleadings, except the jurata ponitur in respectuh, which is to be retained: Provided, that such regulation shall not alter or affect any existing rules of practice, as to the times of proceeding in the cause: Provided also, that in all cases in which a plea puis darrein continuance is now by law pleadable in banc, or at nisi prius, the same defence Gregory, 2 Barn. & Ad. 257. Com. Dig. tit. Pleader, V. Tidd Prac. 9 Ed. 678, 9. a Gilb. C. P. 40. b Clapham v. Lenthall, Hardr. 365. Gilb. C. P. 41, 2; and see Doc. Pl. 222. Curlius (or Curlewis) v. Padley, (or Dudley,) 1 Salk. 179. 2 Ld. Raym. 872. S. C. Wymark's case, 5 Co. 75. Mellor v. Walker, 2 Wms. Saund. 5 Ed. 1. e. (2.) and see Tidd Prac. 9 Ed. 678, 9. 720. ⚫ Dyke v. Sweeting, 1 Wils. 183; and see Tidd Prac. 9 Ed. 720. f R. H. 2 W. IV. reg. I. § 109. 3 Barn. 8 R. Pl. Gen. H. 4 W. IV. reg. 2. 5 h Tidd Prac. 9 Ed. 775. 917, 18. tinuances abo lished. Not to alter times of proceed- Affidavit to accompany. Entry of continuance after fault, unneces may be pleaded, with an allegation that the matter arose after the last pleading, or the issuing of the jury process, as the case may bea : Provided also, that no such plea shall be allowed, unless accompanied by an affidavit, that the matter thereof arose within eight days next before the pleading of such plea, or unless the court or a judge shall otherwise order." a After judgment by default, and a writ of inquiry awarded, there judgment by de- was formerly no subsequent continuance between the parties, in the Common Pleas : In the King's Bench, it was otherwise : But now, by a general rule of all the courts d, "after judgment by default, the entry of any subsequent continuances shall not be required." sary. aAs to pleas puis darrein continuance, Sir John Heydon's case, 11 Co. 6. b. Rol. Abr. 486. pl. 7. Tidd Prac. 9 Ed. 678. d R. H. 2 W. IV. reg. I. § 105. 3 Barn. & Ad. 390. 8 Bing. 304. 2 Cromp. & J. 198. CHAP. XXXI. Of PROCEEDING to ARGUMENT on Demurrer. AFTER joinder in demurrer, the demurrer-book should in general Demurrer book. be made up and delivered by the plaintiff's attorney, or his agent, to Entry of proceedings on re the defendant's attorney or agent a. And it must, we have seen b, on By whom made all occasions be made up by the suitor, his attorney or agent, as the up. case may be, and not, as heretofore, by any officer of the court c. But it does not seem to be necessary for the defendant to return the demurrer book; and therefore a judgment signed in scire facias for not returning it, was set aside for irregularity d. It was formerly the practice to enter the proceedings on record, and carry in and docket the roll, before the demurrer was argued; but this seems to be now unnecessary, in consequence of a late statutory rule, by which it is ordered, that "the entry of proceedings on the record for trial, or on the judgment roll, according to the nature of the case, shall be the first entry of the proceedings in the cause, or of any part thereof, upon record." It being found that great expense was often unnecessarily incurred, in making up demurrer books, from setting forth those parts of the pleadings to which the demurrers did not apply, a rule was made in the King's Bench, that "when there shall be a demurrer to part only of the declaration, or other subsequent pleadings, those parts only of the declaration and pleadings, to which such demurrer relates, shall be copied into the demurrer books; and if any other parts shall be copied, the master shall not allow the costs thereof on taxation, either as between party and party, or as between attorney and client:" and there is a similar rule in the Common Pleas ", and Exchequer 1. a R. T. 1 Geo. II. (a.) K. B. Sharpe v. Sharpe, Barnes, 163. C. P.; and for the mode of proceeding, when there are several issues, in law and in fact, see Tidd Prac. 9 Ed. 736, 7. b Ante, 441. R. Pr. H. 4 W. IV. reg. 5. 5 Barn. & Ad. Append. xiv. 10 Bing. 453. 2 Cromp. & M. 2. Baylis v. Hayward, 3 Dowl. Rep. 533. 10 Leg. Obs. 11, 12. S. C. R. Pl. Gen. H. 4 W. IV. reg. 15. 5 Barn. & Ad. Append. vi. 10 Bing. 468. 2 Cromp. & M. 18. Ante, 446. R. H. 8 & 9 Geo. IV. K. B. 7 Barn. R. H. 8 & 9 Geo. IV. C. P. 1 cord unneces sary, before argument. Making up demurrer books for judges, when part only of declaration, &c. is demurred to. G G Motion and rule for concilium, in K. B. In C. P. which was a four day rule; The concilium, dies concilii, or day to hear the counsel of both parties a, was formerly moved for in the King's Bench, upon reading the record in court b; but it afterwards became a motion of course, which only required a counsel's signature. Still, however, the record was taken pro formá to the clerk of the papers, who marked it "read," and signed the initials of his name on the brief or motion paper; which being carried to the clerk of the rules, he drew up the rule for a concilium thereon, and then the cause was entered for argument with the clerk of the papers 2. In the Common Pleas, the record was brought into court by d. the clerk of the dockets, on moving for a concilium; which was a motion of course, requiring only a serjeant's name: and the motion paper being handed to one of the secondaries, he marked the roll as "read" in course; after which, the rule was drawn up with the secondary, and a copy of it served on the defendant's attorney; and at the time of drawing up the rule, the secondary set down the cause In Exchequer. for argument in the court book. In the Exchequer, the rule for a concilium was a four day rule: and where a demurrer was seriously intended to be argued, the court would not grant the rule, nor hear any argument on the demurrer, on the last day of term; but where a sham plea was pleaded, and a demurrer to a replication appeared to have been filed for delay, the court, when there were not four days remaining of the term, would grant a concilium for the last day of it. And where it appeared that the defendant had demurred to the plaintiff's replication for delay, the court refused to set aside an order for a concilium, although four days had not been given to the defendant to return the demurrer book h. By a late regulation of that court, it was declared that in future it should not be necessary to give a rule to bring in demurrer books, but the motion for a concilium might be made without it: And, by a subsequent rule of all the courts, d R. T. 1 Geo. II. (a.) K. B. e Thellusson v. Baillie, 2 Anstr. 499. 8 Gent v. Vandermoolen, 13 Price, 247; Savile v. Jackson, 11 Price, 337. And see further, as to the motion and rule for a concilium in K. B. Tidd Prac. 9 Ed. 737, 8.; in C. P. id. 738, 9.; and in the Exchequer, id. 739, 40. i R. T. 1 W. IV. Excheq. Price Ex. Pr. 538. 1 Tyr. Rep. 519. 1 Cromp. & J. 468. 1 Dowl. Rep. 294. 2 Leg. Obs. 79. * R. Pr. H. 4 W. IV. reg. 6. 5 Barn. & Ad. Append. xiv. 10 Bing. 453. 2 Cromp. & M. 2; and see 3 Rep. C. L. Com. 28. Delivery of de judges, in K. B. murrer books to "no motion or rule for a concilium shall be required; but demurrers, No longer neas well as all special cases, and special verdicts, shall be set down cessary. for argument, at the request of either party, with the clerk of the rules in the King's Bench and Exchequer, and a secondary in the Common Pleas, upon payment of a fee of one shilling; and notice thereof shall be given forthwith by such party to the opposite party." Previously to the day appointed for argument, copies of the demurrer books were formerly delivered in the King's Bench, by the plaintiff or his attorney, to the chief justice and senior judge, and by the defendant or his attorney, to the two other judges; and if either party, or his attorney, neglected to deliver the books, the other party, or his attorney, ought to have delivered the same a. In the Common In C. P. Pleas it was a rule, that the plaintiff's attorney should deliver all the demurrer books to the lord chief justice, and the rest of the judges b; which books, by a later rule, were to be delivered to the lord chief justice and the other judges, two days exclusive of the day of such delivery, before the day on which the cause was set down for argument. In the Exchequer, it was declared by a rule of court, that it In Exchequer. would be sufficient to deliver the books to the barons, two days before the day of argument: But now, by a general rule of all the In all the courts. courts, it is ordered, that "four clear days before the day appointed for argument, the plaintiff shall deliver copies of the demurrer book, special case, or special verdict, to the lord chief justice of the King's Bench or Common Pleas, or lord chief baron, as the case may be, and the senior judge of the court in which the action is brought; and the defendant shall deliver copies to the other two judges of the court next in seniority; and in default thereof by either party, the other party may, on the day following, deliver such copies as ought to have been so delivered by the party making default; and the party making default shall not be heard, until he shall have paid for such copies, or deposited with the clerk of the rules of the King's Bench and Exchequer, or the secondary in the Common Pleas, as the case may J. 468. 1 Dowl. Rep. 294. 2 Leg. Obs. e R. Pr. H. 4 W. IV. reg. 7. 5 Barn. |