of an order to set aside proceedings, a judge at chambers may, CHAP. XVII. it seems, give costs(x), though the practice as to his giving them is by no means certain (y). If he refuses to give costs, the successful party must not afterwards apply to the court for them (z). As to the mode of enforcing the payment of costs by attachment, see post, Book IV. Part III. bringing no Action. In setting aside a judgment and execution for irregularity, Term of we have seen (ante, 705) that the court or judge, in general, restrains the applicant from bringing any action (a), where the applicant is given the costs of the application, &c. If, however, the term of bringing no action be not imposed by the court at the time of disposing of the rule for setting aside the irregular proceedings, the successful party cannot at a subsequent period be restrained from bringing an action in respect of the irregularity (b). (2) Doe Prescott v. Koe. 1 Dowl. 274; 2 Moo. & Scott, 119; 9 Bing. 104, S. C.; sed ride Read v. Lee, 2 B. & Ad. 415; 1 Dowl, 52, S. C.: Spicer v. Todd, 1 Dowl. 306. Some of the judges still doubt their power in some cases to give costs, on an application at chambers, and refuse to give them. (y) See Dary v. Brown, 1 Scott, 384. CHAPTER XVIII. BOOK IV. What. For not Declaring. Where there are several Defendants. JUDGMENT OF NONPROS. JUDGMENT of nonpros is a final judgment for costs only, signed by the defendant, whenever the plaintiff, in any stage of the cause, neglects to prosecute his suit, or part of it, within the time limited by the rules of the court for that purpose. For not Declaring.] We have already noticed (ante, Vol. I. 137) the time within which the plaintiff must declare; and that if the plaintiff do not declare within such time, or within such further time to declare as he may obtain of the court or a judge, the defendant may, at the expiration of four days next after a written demand of declaration served upon the plaintiff, his attorney, or agent, as the case may be, sign judgment of nonpros (a). The demand cannot be made until after the time in which the plaintiff is bound to declare (b). If such a demand has been made, and time to declare obtained, the defendant may sign judgment of nonpros without a fresh demand of declaration (c). But judgment of nonpros cannot be signed after a declaration, &c., has been actually delivered or tendered, although the time has expired (d); unless the delivery of the declaration, &c., be a fraud on the court, as in Ariel v. Barrow (e), where the plaintiff delivered a declaration, after having obtained a rule to discontinue on payment of costs, and the court refused to set aside a judgment of nonpros signed after delivery of declaration. If the action be against several defendants, the plaintiff may be nonprossed by any one, if all have appeared; but if all have not appeared, then those, or any one of those, who have appeared cannot nonpros the plaintiff (ƒ), even in trespass; unless the plaintiff have actually declared against some of them, or have taken out a rule for time to declare against some of them, in which case the others may sign judgment of nonpros (g). Also, where several defendants are entitled to (a) This four days' demand is required by the R. T., 1 W. 4, r. 8, by which it is ordered, "That no judgment of nonpros shall be signed for want of a declaration, replication, or other subsequent pleading, until four days next after a demand thereof shall have been made, in writing, upon the plaintiff, his attorney, or agent, as the case may be." (See the former practice, Tidd's New Pract. 225). That rule, as far as it related to a demand of replication and subsequent pleadings, is altered by the R. H., 2 W. 4, r. 1, s. 54, ante, Vol. I. 195, which makes a service of a rule to reply or plead a subsequent pleading a sufficient demand of such replication or subsequent pleading. By R. H., 2 W. 4, r. 1, s. 38, it shall not be necessary for a defendant, in any case, to give a rule to declare, except upon removal from inferior courts. (See the form of the judgment, Chit. Forms, 6061 (b) Harris v. Duncan, cor. Putteson, J. at chambers, Feb. 1837. (c) Wells v. Hare, 1 Dowl. 366: Teulon v. Grant, 5 Dowl. 153. (d) Gray v. Pennell, 1 Dowl. 120. (e) Ariel v. Barrow, 8 Bing. 375. (f) Philpott v. Muller, 1 Doug, 163, n.: Palmer v. Fiestel, 2 Dowl. 507: see Inwood v. Mawley, 5 D. & R. 351; 3 B. & C. 553, S. C.: Jones v. Gibson, 5 B. & C. 768; 8 D. & R. 592, S. C.: Murphy v. Denlan, 5 B. & C. 178; 7 D. & R. 618, SC. (g) Roe v. Cock, 2 T. R. 257: Buller v. Upton, Id. 259, n. sign judgment of nonpros, they can sign but one judgment, CHAP. XVII. although they have appeared severally by separate attornies (?). The judgment should be a general judgment against plaintiff(i), except in the cases above mentioned. In proceedings to outlawry, if the defendant be taken, or After Outappear voluntarily on the exigi facias, the plaintiff must de- lawry. clare against him within the usual time limited upon proceedings by summons; otherwise the defendant may, four days after a declaration has been demanded in writing, sign judgment of nonpros (k). But if the defendant be outlawed, and afterwards come in and reverse the outlawry, although the plaintiff must declare against him (if at all) within two terms after the reversal, yet the defendant cannot sign judgment of nonpros, if the plaintiff fail to do so (?). moval from sign. If the plaintiff in replevin do not declare before four days In Replevin. have expired after the service of the rule to declare, and a four days' demand of declaration in writing, the defendant may sign judgment of nonpros (m). So, if he do not declare upon a writ of second deliverance, within the time limited for that purpose, the defendant may sign judgment of nonpros(n). Where a cause is removed from an inferior court by writ of After Rehabeas corpus cum causâ, the plaintiff (if he declare at all in inferior the court above) must declare before the end of the term next Court. after that in which bail is put in; but after a removal by the defendant judgment of nonpros cannot be signed if he fail to do so (o); otherwise after a removal by the plaintiff (p). Before the defendant can sign judgment of nonpros for not When Defendeclaring, he must have appeared to the action (4), and, if he dant may allows the plaintiff to appear for him according to the statute, he cannot nonpros him(r). Since the 2 W. 4, c. 39, and 1 & 2 V. c. 110, it would seem that the time for demanding a nonpros will be regulated in all cases by the appearance to the writ of summons; and the defendant may, it seems, enter an appearance, so as to entitle him to demand a declaration or nonpros, at any time before the plaintiff has entered an appearance for him, and while the cause is in court (8). Where it appeared that the defendant, on entering an appearance to the writ of summons, had made a mistake in the names of the parties, and notice being given to him of the fact by the plaintiff, he promised to amend, but instead of doing so entered a new appearance, and then demanded a declaration, and the plaintiff not declaring till the following term, he signed judgment of nonpros, the court was of opinion (h) Price v. Foulkes, 4 Burr. 2418; 1 Comyns, 74: Allington v. Vavasor, 2 Salk. 455. (D) See Jones v. Gibson, 5 B. & C. 768; 8 D. & R. 592, S. C. (k) See form of such judgment, Chit. Forms, 557. (4) See ante, 934. (m) bee as to this judgment, ante, 799: see Chit. Forms, 438 to 442. The R. H., 2 W. 4, r. 1, s. 38, requires the rule to declare in all cases of removals from inferior courts (ante, 1052, n. (a)). (n) See ante, 799, 800. (9) See Hall v. Champneys, 4 Dowl. 713; 1 Tyr. & G. 496, S. C. (r) The judgment of nonpros is founded on the 13 Car. 2, st. 2, c. 2, s. 3, from the wording of which, it would appear that to sign judgment of nonpros for not declaring an appearance, must have been entered "for the defendant by attorney, in the term wherein the process is returnable." At that time an appearance could not be entered by the plaintiff for the defendant, the 12 Geo. 1, c. 29, being the first statute allowing it. (8) See Price's Pract. 283, and see the (6) Ante, 949: Clark v. Mayor of Ber- former practice: Primrose v. Bradley, 6 wick, 4 B. & C. 649. East, 314. (P) Ante, 949. BOOK IV. For not Replying, &c. May be signed the Suit. that the defendant had been irregular in not amending the appearance, and therefore directed the judgment to be set aside (t). It may be necessary here to observe, that judgment of nonpros must be signed within a year from the execution of the process, and cannot be signed afterwards (u). For not Replying, &c.] If the plaintiff do not reply, surrejoin, surrebut, &c., within the time limited for that purpose after service of the rule, (see ante, Vol. I. 196, 197), or specified in an order for further time, the defendant may sign judgment of nonpros, unless the replication, &c., has actually been delivered or tendered before signing judgment (r). And even where the plea concludes to the country, if the plaintiff be ruled to reply, he must, it seems, actually deliver the similiter within the time limited by the rule, otherwise the defendant may sign a nonpros (w). Service of a rule to reply, or to plead any subsequent pleading, is a sufficient demand of a replication or such other subsequent pleading, and therefore a separate demand is not requisite (x). It may be observed, that a judgment of nonpros may be signed as to Part of to any part of the suit which is not prosecuted. Thus, for instance, if the declaration contain two counts, and the defendant plead non assumpsit to the first count, and the Statute of Limitations to the second, and the plaintiff reply to the plea of the Statute of Limitations, but omit adding the similiter to the plea of non assumpsit, defendant ruling the plaintiff to reply, and waiting four days after it, might sign a judgment of nonpros to the first count. But in such or in any other case where the plaintiff has so replied, &c., so as to leave part only of the defence answered, the defendant could not sign judgment of nonpros as to the whole action, but only as to such part of it as remains not prosecuted by the plaintiff. Where the defendant pleaded by mistake the general issue to three instead of four counts, and plaintiff replied, and then defendant amended his plea by extending it to the fourth count, and plaintiff not having replied to the amended plea, although ruled so to do, defendant signed judgment of nonpros to the whole action-it was held that this was irregular (y). And, where defendant pleaded payment into court to the whole declaration, and other pleas to all except the sum paid in, and the plaintiff replied to the plea of payment into court only, that he accepted the sum paid in and was satisfied, it was held, that the defendant could not sign judgment of nonpros, for want of a replication to the other pleas(); but where the payment into court is pleaded only to part, the plaintiff must reply to the other pleas, or the defendant will be entitled to (t) Bate v. Bolton, 2 C., M. & R. 365; 4 Dowl. 100, S. C.; and see Id.; 1 Tyr. & G. 148; 4 Dowl. 677. (u) See R. H., 2 W. 4, r. 35: Cooper v. Nias, 3 B. & Ald. 271; 1 Chit. Rep. 669, S. C. The return day of the process is the day it is executed. (See Hodgson v. Mee, 5 Nev. & M. 302; 3 A. & E. 765, S. C.) (v) Gray v. Pennell, 1 Dowl. 120. If the delivery of replication, &c., be a fraud on the court, judgment may be signed, judgment of nonpros on the unanswered pleas (a). As to a CHAP. XVIII. nonpros by one of several defendants, see ante, 1052. In replevin, after the defendant has avowed, he may rule In Replevin. the plaintiff to plead, in the same manner as he is ruled to reply in other actions; and if the plaintiff neglect to plead within the time limited by the rule, the defendant may sign judgment of nonpros (b). As to nonprossing the plaintiff in ejectment, see ante, 751, In Ejectment. 752. If the plea be a nullity and not merely irregular, it seems Where Plea a that no judgment of nonpros could be regularly signed for not Nullity. replying to it (c). For not entering the Issue.] Formerly, if the plaintiff did For not enternot bring in the record before the expiration of the rule to ing the Issue. enter the issue, the defendant might have signed judgment of nonpros; but now there is no occasion to enter the issue, and no rule for that purpose, and, consequently, no judgment can be signed against plaintiff for not entering it (d). In Error.] As to when the defendant in error may sign In Error. judgment of nonpros for not transcribing the record, see ante, Vol. I. 368 (e). As to when the defendant in error may sign judgment of nonpros for not assigning error, &c., see Vol. I. 369 (ƒ). In other Cases.] On a rule to discontinue after plea pleaded, In other Cases. such rule containing an undertaking by plaintiff to pay the costs, and a consent, that, if they are not paid within four days after taxation, the defendant shall be at liberty to sign judgment of nonpros; in such case, if the plaintiff do not pay the costs within that time, defendant may have a judgment of nonpros accordingly (9). A judgment of nonpros cannot be signed when the proceedings have been stayed by a general order for particulars (ante, 1032). Where the plaintiff's proceedings in a second action are stayed until he have paid the costs of a former action, the court will not allow the defendant to nonpros the second action, for non-payment of these costs (h). Where the tenant in a writ of right, not being able to discover who the demandant was, obtained a judge's order, directing the attorney to deliver to the tenant's attorney the true name and address of his client, the court refused to allow the tenant to sign judgment of nonpros for disobedience of this order. It seems that the proper course in such a case would be, to make the judge's order a rule of court, and then move for an attachment against the attorney (i). How Signed.] If an appearance has not been already entered How Signed. by the defendant, enter it as usual (k). Make an incipitur on (a) Topham v. Kidmore, 5 Dowl. 676, even where the plea is irregular in form. (Emmott v. Standen, 3 M. & W. 497; 6 Dowl. 501. S. C.) b. See as to this judgment, ante, 804, 805: see Chit. Forms, 431 to 442. (e) Garratt v. Hooper, 1 Dowl. 28. (e) And see Chit. Forms, 114. (g) R. H., 2 W. 4, r. 106: see post, (h) Doe Sutton v. Ridgway, 5 B. & Ald. 523. (i) Dumsday v. Hughes, 2 Scott, 377. |