OF IMPARLANCE, AND TIME FOR PLEADING, &c. 127 66 were delivered, or filed and notice thereof given, before the essoin CH. XVIII. day of that term; otherwise the defendant was allowed to imparl to the subsequent term. By a late rule, however, of all the courts", "upon every declaration delivered, or filed, on or before "the last day of any term, the defendant, whether in or out of any prison, was compellable to plead as of such term, without "being entitled to any imparlance." Upon this rule it was holden, that if the writ and appearance were of one term, and the declaration of another, the defendant was still entitled to an imparlance ". But now, as the time for pleading is no longer regulated by terms; but the proceedings, we have seen, may be had on writs, except at certain times, in term or vacation; the practice of imparling is, it seems, abolished by the statute 2 W. IV. c. 39.o, so far as it is dependent on the terms; but some of its consequences, as affecting particular proceedings, such as pleas to the jurisdiction, or in abatement, or claiming conusance, &c. may still remain. In case the time for pleading to any declaration, or for answering any pleading, shall not have expired before the 10th day of August in any year, the party called upon to plead, reply, &c., shall, we have seen, have the same number of days for that purpose, after the 24th day of October, as if the declaration, or preceding pleading, had been delivered or filed on the 24th day of October; but in such cases, it shall not be necessary to have a second rule to plead, reply, &c. And 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 8. Time for plead- When judgment may be signed, without giving a new rule to plead. CHAP. XX. Provisions of stat. 1 & 2 W. IV. c. 58. Means of relief, before that statute. Of the INTERPLEADER ACT, &c. IT Before the making of the above statute, it often happened, that a person sued at law for the recovery of money or goods, wherein he had no interest, and which were also claimed of him by some third party, had no means of relieving himself from such adverse claims, but by a suit in equity against the plaintiff and such third party, usually called a bill of Interpleader, which was attended with expense and delay b; for remedy whereof, it is enacted by the above statute, that "upon application made by or on the be"half of any defendant sued in any of his majesty's courts of law "at Westminster, or in the court of Common Pleas of the county "palatine of Lancaster, or the court of pleas of the county palaright in the sub- tine of Durham, in any action of assumpsit, debt, detinue, or ject matter is claimed by a "trover, such application being made after declaration and before “plea, by affidavit or otherwise, shewing that such defendant does judge, may order" not claim any interest in the subject matter of the suit, but that such third party to appear and "the right thereto is claimed, or supposed to belong to some third Upon applica tion by defendant, in an action of assumpsit, &c. stating that the third party, the court, or a a Chap. XLI. с b See the preamble to stat. 1 & 2 W. IV. c. 58. and Rep. C. L. Com. 46 66 linquish his claim; and, in the mean time, stay proceedings in such action. "party, who has sued or is expected to sue for the same, and that maintain or re"such defendant does not in any manner collude with such third "party, but is ready to bring into court, or to pay or dispose of "the subject matter of the action, in such manner as the court, or any judge thereof, may order or direct; it shall be lawful for the "court, or any judge thereof, to make rules a, and orders, calling upon such third party to appear, and to state the nature and par"ticulars of his claim, and maintain or relinquish his claim; and upon such rule or order, to hear the allegations as well of such "third party as of the plaintiff, and in the mean time to stay the "proceedings in such action; and finally, to order such third party Adverse claims, to make himself defendant in the same, or some other action, or "to proceed to trial on one or more feigned issue or issues; and "also to direct which of the parties shall be plaintiff or defendant 66 66 on such trial; or, with the consent of the plaintiff and such third "party, their counsel or attornies, to dispose of the merits of their "claims, and determine the same, in a summary manner; and to "make such other rules and orders therein, as to costs and all "other matters, as may appear to be just and reasonabled: And "that the judgment in any such action or issue as may be directed "by the court or judge, and the decision of the court or judge in a summary manner, shall be final and conclusive against the par"ties, and all persons claiming by, from, or under them."e "That if such third party shall not appear, upon such rule or order, "to maintain or relinquish his claim, being duly served therewith, or "shall neglect or refuse to comply with any rule or order to be "made after appearance, it shall be lawful for the court or judge to "declare such third party, and all persons claiming by, from, or "under him, to be for ever barred from prosecuting his claim against "the original defendant, his executors or administrators; saving "nevertheless, the right or claim of such third party against the "plaintiff; and thereupon to make such order, between such de"fendant and the plaintiff, as to costs and other matters, as may appear just and reasonable."f "Provided always, that no order shall be made in pursuance "of that act, by a single judge of the court of pleas of the said a For the form of a rule nisi, and summons to shew cause, on the above statute, see Append. to Chap. XX. § 2. 5. b Id. § 3. c Id. § 6. d Stat. 1 & 2 W. IV. c. 58. § 1. • Id. § 2. f Id. § 3. how tried and determined. Judgment and decision of court or judge to be final. If such third party shall not appear, &c. the court or judge may bar his claim against the original defendant. Proviso as to orders made by a single judge. K If judge think the matter more fit for their decision, he may refer it to the court. Decisions on thi statute. 66 "county palatine of Durham, who shall not also be a judge of one On this statute it has been decided, that a party who, by his own act, is placed in a situation to be sued, cannot call on the court to substitute another defendant in his stead c. So, the case of a wharfinger, who claims a lien on goods for wharfage, &c. which attaches only upon one of the parties by whom the goods are claimed, is not, it seems, within the meaning of the statuted. And where a defendant has been indemnified by a third party, for not delivering up property in his possession, he has no right to relief under the above act; and the court will discharge a rule obtained for that purpose, with costs e. But a lien attaching upon the goods in dispute, and which must be satisfied by whichever party ultimately turns out to be entitled to them, does not prevent the party who holds the goods, from applying to the court for relief, under the above act. The costs of the applicant, where he has acted boná fide, will, in the first instance, be directed to be paid out of the fund, or proceeds of the goods in dispute, to be repaid by the party ultimately unsuccessful 8. And where an issue has been directed by the court, to try the rights of contending parties to the property in a Stat. 1 & 2 W. IV. c. 58. § 4. 5. There is also a clause in the act, (§ 7.) that all rules, orders, &c. made in pursuance thereof, may be entered of record, &c.; which will be noticed in Chap. XLI. when treating of the relief of sheriffs, and other officers, in the execution of process against goods and chattels. Belcher v. Smith, 9 Bing. 82. 2 Moore & S. 184. S. C. d Braddick v. Smith, 2 Moore & S. 131.9 Bing. 84. S. C. e Tucker v. Morris, Cromp. & M. 73. 1 Dowl. Rep. 639. S. C. f Cotter v. Bank of England, 3 Moore & S. 180. Duear v. Mackintosh, 3 Moore & S. 174. Cotter v. Bank of England, id. 180. question, and the intermediate party has paid money into court, to CHAP. XX. abide the event of the issue, the successful party cannot move to have the money paid out to him, until final judgment has been signeda. Cooper v. Lead Smelting Company, 2 Moore & S. 810. 9 Bing. 634. I Dowl. Rep. 728. S. C. For the notice of motion, and rules of court in this case, CHAP. XXII. Of WRITS of INQUIRY of DAMAGES, and IMMEDIATE how returnable, before stat. 1 BEFORE the late act for the more speedy judgment and execu- Writs of inquiry, tion in actions, brought in his majesty's courts of law at Westminster, and in the court of Common Pleas of the county palatine of W. IV. c. 7. Lancaster, &c. writs of inquiry could only have been made returnable in term time b; and consequently, when they were executed in vacation, the plaintiff must have waited until the ensuing term, before he could have obtained final judgment, or taken out execution. This practice having occasioned great delay, by reason of the interval between the terms, it was enacted by the above statute, that" any writ of inquiry of damages, to be issued in or by "either of the said courts, by whatever form of process the action may have been commenced, may be made returnable, and be re"turned on any day certain, in term or vacation, to be named in "such writ; and such writ shall be as valid and effectual, as if "the same had been returnable according to the course of the May now be made returnable on any day to be named therein. |