with Notes of Reference (1803)
St. George Tucker
Of Appearance and Pleading
HAVING, in the note at the end of the preceding chapter, pointed out the manner in which a suit is commenced in our courts; the intermediate process between that and the time of the defendant’s arrest, and the methods by which the plaintiff may either compel his personal appearance, or obtain judgment against him, or his bail, or the sheriff, according to the nature of the case, if the defendant still continues to stand out, or makes default; it will now be our business to show what proceedings are to be had in case he appears pursuant to the writ or stipulations of his bail-bond, given to the sheriff for his appearance.
5th. Then, where the defendant means to appear and contest the suit, he is to enter his appearance on the first rule day after the rising of the court, in the office of the clerk; this is done in a rule book kept for that special purpose. At this time he must file special bail, if required, and if he means to plead to the jurisdiction of the court, or to avail himself of any irregularity in the writ, or process, he ought to demand oyer of the writ, or other process, and of the return thereon made; for it seems to be held, that the writ of capias is not necessarily a part of the record in any suit, and, therefore, that the defendant who wishes to avail himself of any defect therein, or in the manner in which it has been issued, or executed, must demand oyer of it; whereupon it is spread at length upon the record, and the defendant may avail himself of any legal exception which he can make to it. Thus, if the writ be not endorsed, pursuant to the statutes which require the true cause of action to be endorsed upon every writ,1 or if there be not three days between the teste, or, the execution, of a writ issuing from the county-court, and the return day thereof, the suit may for either of these causes be dismissed at the first calling, if the defendant appears and excepts to it; or if he fails to appear at the rules, so that an office-judgment is confirmed against him, yet it teems now to be settled, that he need not plead in abatement, but may take advantage of the irregularity by motion of the court, at any time during the term next after the judgment was confirmed against him in the office, but not after.2 So if a summons, issued against a person, against whom a writ of capias ad respondendum, can not be regularly issued, be returned executed by leaving a copy thereof at the defendant’s house within ten days,3 before the return day; this irregularity, if it appear upon the face of the writ of summons (as if there be not t tt days -between the jteste and the return) or by the return itself, may, I apprehend, be taken advantage of in the same manner. But if, instead of a summons a capias be issued against a person so privileged, or if a defendant being a resident of one county,4 be sued in the court of another county, or corporation, in which the cause of action did not arise, and before a non est inventus returned upon a writ issued against him for the same cause in his own county, and the writ be not endorsed that any bail is required, or if being a resident of one district, he be sued in the court of another district, before a non est inventus is rereturned,5 upon a writ issued against him for the same cause in his own district, and he be not jointly, or jointly and severally, bound with another person, residing within the district where the suit is brought, in the same obligation, covenant, or contract; in all these cases, if the defendant means to avail himself of the irregularity, I apprehend it is necessary to appear, and plead the special matter in abatement; the truth of which plea he must verify by affidavit: for the irregularity in these cases does not appear either upon the face of the writ, only tiu return s tut, arises from a fact to which the court cannot be supposed to be privy, and of which they cannot judicially take notice, unless it be regularly shown to them; and this, I presume, can only be done by a plea in abatement. In this plea the defendant must allege, that on the day of the writ purchased, he was a governor, a member of the privy council, a judge of one of the superior courts, or a sheriff, and therefore not liable to be sued by capias; or that he was a resident in a different county, or in a different district, at the time of the writ purchased, and therefore not liable, in the former case, to be taken upon a writ on which there is not the endorsement, “no bail required” pursuant to the statutes; and in the other, not liable to be taken on any writ, whether endorsed or not. And here I apprehend this plea ought to conclude, without going on to allege negative matter, as that no “non est inventus” had been returned upon a writ issued against him in the same suit in his own county. 5 or that he was not bound with any other defendant residing within the disdrict where the suit is brought in the same bond, obligation, or covenant; for of these things the plaintiff must be presumed to be cognisant, and if the fact be that a non est inventus has been returned upon a capias issued against the defendant in his own county, in the same suit; or, if the defendant be, in fact, bound in the same obligation, covenant, or contract, with another defendant residing within the district; the plaintiff ought to reply this matter affirmatively; and if it.be found for him it will avoid the plea in abatement. So, if the cause of action arose within that county, or corporation, where the suit is brought, this matter must also be affirmed by the plaintiff in his replication, instead of the contrary being negatively alleged by the defendant in his plea. And in all these cases, if there be an issue joined upon the fact, and a verdict be found for the plaintiff, he shall have judgment for his debt or damages; but if there be a demurrer to the plea, the judgment (if for the plaintiff) is, that the defendant answer over, respondeat ouster, in the law latin phrase, to his action:6 if the issue be found for the defendant or judgment be given for him upon the demurrer, the suit shall be abated, and he shall recover his costs . . ..
Where the defendant is an alien, or the citizen of any other state, (or the suit relates to lands claimed by the several parties under grants from different states), and the matter in controversy is of the value .of five hundred dollars or more, if he desires to remove the suit into the federal circuit court, he must now petition the court for that purpose,7 (or, I presume, file his petition) and must give security to appear in the federal court, and answer the plaintiff’s -suit, and thereupon the cause will be removed and the bail for his appearance are discharged: but.he must give bail to the action, in the federal court, if ruled thereto. If there be any other matter, proper to be pleaded in abatement, the defendant ought to take advantage of it at this stage of the proceedings; as if an action is brought against one executor, or one of the obligors in a joint bond, or one of the partners in a trading company, whereof there are more, the party who is sued alone may plead the special matter in abatement; which if he neglects to do at this time, he shall never have advantage of such a plea afterwards.8 And it is a general rule, that nothing shall be taken advantage of for error, which might have been pleaded in abatement.9 Here we may be permuted to express a doubt, whether, if an action be brought in a county court against two or more executors, or two or more joint obligors, or two or more partners in trade, or two or more joint defendants in any other action, and one of them be returned no inhabitant, whereby the writ abates as to him, the action can be continued against the other defendant, if disposed to take advantage of the abatement as to the first.
In the case of executors, who are all one person in the eye of the law,10 the rule seems to be, that if the writ must abate as to one, it shall abate as to all. And as to joint obligors the law seems to be, that they must be sued jointly,11 and in England, if one of the defendants in an action upon a joint obligation be not taken, the other may abate the writ. Yet, if he neglects to do so, and the plaintiff proceeds to outlawry against the defendant who is not taken, he who appeareth shall be chargeable with the whole.
The defendant having entered his appearance, it is incumbent on the plaintiff at the next rule day,12 (which, we may remember, is always one month after the district courts, and in the county courts on the day appointed by the court at the preceeding quarter session) to file his declaration: which if he fails to do, the defendant may then enter a nrie for him to declare, and if, at the succeeding rule day, he still neglects to do so, he shall be non-suited, and pay to the defendant his full costs- . . . But this non-suit may, for good cause, be set aside, on motion, at the next court, but not afterwards. So, also, may any other office-judgment, whether for the plaintiff of the defendant; the proceedings in the office, being regarded as only in jfieri, and not final, until after the next term is ended; when they are final, in all cases against the plaintiff; they are also final, in his favor, in actions of debt, for money, or tobacco, if the amount be ascertained by the specialty 13 but in cases where the amount of the plaintiff’s demand is not fixed by the specialty, there a jury must be impannelled to assess his damages. And in such cases it is every day’s practice to permit the defendant to set aside the office-judgment at any time before the jury is sworn, upon giving bail, if bail be demandable, and pleading the general issue, so as not to delay the trial.14
These office-judgments are considered as the acts of the party and his attorney, and not of the court, and, therefore, in England, if they be set aside for any irregularity after a capias ad satisfariendum, or other execution, issued thereupon, it seems that the plaintiff and his attorney, are both liable to an action.15 One month after the plaintiff has filed his declaration, he may give a rule to plead with the clerk, and if the defendant do not plead, accordingly, at the expiration thereof, the plaintiff may enter judgment for his debt, or damages and costs.16 On the other hand, if the defendant pleads, he may give the plaintiff a rule to reply; which when he has done, he may then give the defendant another, to rejoin: and so on, until an issue is joined between them. Or, if either party neglects to plead, reply, or rejoin, when the rule for his doing so is expired, the other may either enter a judgment for his debt or demand, or a non suit, as the case may be. As soon as an issue is joined either upon the law, or fact, in dispute, the cause is then to be placed upon the court-docket, for trial in it’s course. And those office-judgments, which are incomplete, and require an inquiry of damages to be made, before final judgment can be rendered thereupon, are, in like manner, to be placed upon the court-docket, for trial, in their respective order.17