RULES

OF THE

SUPREME COURT.

APRIL TERM, 1796.

ORDERED,

1796.

1. THAT every rule to which a party would, according April Terra, to the practice of the court, be entitled of course, without showing special cause, shall be denominated a common rule, and every other rule shall be denominated a special rule. That all common rules, and all rules by consent of parties, shall be entered with the clerk at his office, in a book to be provided by him for the purpose, and may be entered at any time, as well in vacation as during a term, and the day when the rule shall be entered shall be noted therein : This rule, however, to be confined to actions in ejectment, and personal actions only, so that rules in real actions shall be taken on motion in open court, as heretofore hath been usual.

II. That every common rule shall be deemed to be taken at the peril of the party taking the same, and therefore the clerk shall always enter such rule as the party shall move

B

1796.

April Term, for But if the opposite party, not having done an act to be considered as an affirmance of the rule, or suffered a lach, shall, on special motion for the purpose, show, that by reason of any irregularity or insufficiency in the proceedings, or by reason of any other matter, the party taking the rule was not entitled thereto, the court may order the rule, and any judgment or execution consequent thereon, to be vacated, and make such other and further order there-` on, as right between the parties may (in the respective cases) require.

III. That, as in the case of every other pleading, the party is not entitled to take a rule against the opposite party to answer, until the pleading to be answered shall be filed, so the plaintiff shall not be entitled to take a rule against the defendant to plead, until the declaration shall be filed.

IV. That the rule to plead, and every other rule to answer, comprehending the rule in ejectment for the tenant to appear and enter into the consent-rule, and the rule on a scire facias for the defendant to plead, shall, in ejectment or scire facias, be a rule of twenty days from the day when the same shall be entered, and in all other cases, shall be a rule of twenty days after service of a notice. thereof, and of a copy of the pleading to be answered; except that the rule to join in demurrer to a plea in abatement, and the rule on scire facias for the defendant to appear, shall be rules of four days only; and except further, that the plaintiff shall not be held to accept a plea in abatement after four days from the day of the service of a notice of the rule to plead and of a copy of the declaration. And where there shall have been a judgment of respondeas ouster, on a demurrer to a plea in abatement, the plaintiff, having served the defendant with a notice of the judgment, shall not then be held to accept of any answer to the declaration after four days from the day of the service of such notice.

1796.

V. That if the attorney for the plaintiff shall not have April Term, received a notice in writing from an attorney, that he is retained to defend the suit, then, in every such case, if the service of the notice of the rule to plead, and of a copy of the declaration, shall not have been on the defendant personally, the service may be, if the defendant shall be returned in custodia, on the sheriff, or one of his deputies; and if the defendant shall be returned cepi corpus, the service of a copy of the declaration shall not be necessary, and the service of a notice of the rule to plead may be by affixing the same in some conspicuous place in the clerk's office; and where special bail shall not be required, and the writ shall be accordingly returned, with the defendant's appearance indorsed, the plaintiff may cause the defendant's appearance to be entered in the book for entering common rules, and in such case also the like service as is last specified shall be sufficient.

VI. That the defendant having appeared either by filing common bail, or having an appearance entered in the book for entering common rules, or if special bail is required in. the cause, by putting in special bail, and the bail, if excepted to, justifying, may at any time thereafter take a rule against the plaintiff, to declare before the end of the term next following after service of the notice of the rule.

VII. That if the plaintiff shall make default in not declaring, then the defendant, or if the plaintiff or defendant, which ever may be the party, shall make default in not answering, then the opposite party may have the default en

In July term, 1802, it was decided, that by this rule the declaration might, in all cases, be served on the defendant in person, if no attorney be employed.

In August term, 1804, Gardinier v. Buel, it was decided, that the words" or judgment of nonpros," added to this rule, were surplusage and did not vitiate or destroy its effect. '

1796.

April Term, tered in the book for entering common rules; but where the previous service of a notice of a rule, copy of pleading, or of any other matter shall be requisite, the default shall not be entered unless an affidavit of such service shall be filed; neither shall it be entered if special bail is required in the cause, and although twenty days from the service of the notice of the rule to plead may have expired, until four days after notice of bail shall have been received; and if bail shall be excepted to, then, not until four days after the bail shall have justified.

VIII. That the default being duly entered, the party who shall have had it entered, shall not be held afterwards to accept a declaration or answer, as the default shall happen to be, and may at any time, after four days in term shall have intervened thereafter, have a rule entered for such judgment, as is to be rendered by law, by reason of the default: Provided nevertheless, That the court in term, and a judge in vacation, may, on motion of the plaintiff, against whom the rule to declare, or of the plaintiff or defendant, against whom the rule to answer may have been taken, at any time before the default shall be entered, make such order for enlarging the time to declare or to answer, as shall be judged reasonable in the case: And provided further, That the plaintiff may at any time before the default for not replying shall be entered, if the plea shall be a special plea, or a plea in abatement, or within twenty days after service of a copy of the plea, if it shall be the general issue, amend the declaration; and the rule to plead, which may have been taken against the defendant, shall then be deemed to be only from the day of the service of the copy of the amended declaration; and in like manner where there shall be a demurrer to a declaration, or any other pleading not being a plea in abatement, the party against whom the demurrer shall be taken, may, at any time before the default for not joining in demurrer shall be entered, amend the pleading demurred to; and further, the respective parties may amend

of course and without costs, but shall not be entitled so to April Term, amend more than once.*

IX. That if the defendant shall plead the general issue, and if the plaintiff shall not within twenty days after service of a copy of the plea, either demur thereto, or amend the declaration, or if either party shall in pleading, in any degree after the plea, tender an issue to the country, and if the opposite party shall not demur to the pleading within twenty days after service of a copy thereof, the cause shall, in each of these cases, be deemed to be at issue; and if a cause shall be put at issue in the vacation, or if it shall be put at issue in term, and there shall not be four days in term thereafter, then in these two cases the four first days in the next term, or if it shall be put at issue in term, and there shall be at least four days remaining in term thereafter, then in this case, the days so remaining in term, shall be the time limited to maintain a rule for a commission to examine witnesses, or for a view, or for a struck jury, whereby the defendant, obtaining the rule, may stay the plaintiff from bringing the `cause on to trial, or whereby the plaintiff obtaining the rule, may stay the defendant from serving a notice to bring the cause on to trial; and where the rule shall be subsequently obtained by the defendant, the plaintiff may bring the cause on to trial, and where it shall be so obtained by the plaintiff, the defendant may serve a notice to bring the cause on to trial, and be entitled to judgment thereupon, notwithstanding the commission may not be returned, or the jury may not be ballotted for the view, or may not be struck, as the case may be; and if at the time

1796.

In January term, 1800, it was decided, that a party cannot add a new plea by way of amendment.

In August term, 1804, Clinton v. Porter, it was decided, that a rule to amend is to be entered, though it be a rule of course, and no new rule to plead need be entered.

Whenever the plaintiff amends his declaration, the defendant has his election to plead de novo, 1 Caines, 153.