Imágenes de páginas
PDF
EPUB

defendant, nor his bail, nor subsequent attaching creditors, have ground of complaint, when their liability is in no degree changed or affected, except merely in regard to want of form, which our statute of jeofails is meant to guard against." The rule, as stated above by Parker C. J. is perfectly manifest and reasonable, but its application must be confined to the case of amendments of the declaration where no new cause of action is introduced. The authorities before cited, which are confirmed by the recent case of Emerson v. Upton,' are uniform in the doctrine, that any material amendment of the writ, such as increasing the ad damnum, or amending the sum directed to be attached, or correcting the date of a return upon the writ, though the error be clearly clerical only, will have the effect of discharging any attachment made upon the writ, as against subsequent attaching creditors; and in the case last cited, Parker C. J. in delivering the opinion of the court, says, "It will be found on an examination of the cases in which amendments of writs have been granted, that the effect of them, when any change has been made, has been limited to the parties to the suit, in which the amendment is granted."

19 Pick. Rep. 167.

CHAPTER III.

CONTINUANCE.

Continuance or imparlance, as it is termed in pleading, in its original sense, is when time is given to a party, to answer the action or pleading of his opponent.1

And continuances, are of two kinds, general and special: the latter are distinguished from the former, by any reservations or restrictions, that may be appended to them.

Continuances are ordered or allowed by the court, when there is not time during the session, or term of the court, to try the cause, or for advisement by the court; and they may be granted, on motion by either party.

After a general continuance or imparlance, the defendant may plead in bar of the action, but not in abatement, or to the jurisdiction of the court.2

A special continuance or imparlance, in our practice, includes, it is presumed, the special and the general special imparlance in the English practice, and so is a continuance of the cause over to the next term, saving all advantages to the defendant whatsoever, in making any exception to the writ, in matters of form, or otherwise, and to the jurisdiction of the court.3

1 Bac. Abr. Pleas, C. Com. Dig. Pleader, D.

2 2 Saund. 1. n. 2. 1 Chitty Plead. 422.

3 Ibid.

It is within the discretion of the court, whether to grant a special continuance or not.

Continuances are sometimes granted upon terms agreed upon by the parties, as that the defendant shall recover no costs of that term, if he prevail; or that the judgment of the court shall be final, at the term to which it is continued; - or that the defendant shall be defaulted at the next term.

SECT. I. WHEN A CONTINUANCE MUST BE

HAD.

In the Court of Common Pleas, it is provided, that in the counties of Berkshire, Franklin, Hampshire, Hampden, Worcester, Middlesex, Essex, Norfolk, Bristol, and Plymouth, neither party shall be holden to be ready for trial, at the term, in which the action is entered, unless previous notice in writing of a trial, has been given by the adverse party, seven days before the sitting of the court.' So that in these counties, either party is entitled, of course, to a continuance, unless notice has been given, according to the above rule. This notice, it will be perceived, must be in writing; and it must be so served, as to bring it home to the party.2

Whenever a defendant is out of the Commonwealth, at the time of the service of the writ, and does not return before the sitting of the court, at which the action is to be entered, it is made the duty of the

133d Rule C. C. Pleas. Appendix B.

2

Anonymous. 1 Caines' Rep. 73.

Ca. 77.

Swartout v. Gelston, 1 Col.

plaintiff to suggest that fact upon the record, and the court will order a continuance of the action, until the next term; at the second term, if the defendant has not returned, and has had no notice of the suit, the court may order the action to be further continued, or may render judgment therein, at their discretion. The practice is, to render judgment at the second term, in all cases where the action is brought upon a liquidated demand, but in other cases, to order a second continuance.1

Whenever a trustee is cited in a case, where the defendant is out of the Commonwealth, the statute makes it the duty of the court, to order the action to be continued two terms.2

If judgment, in either of the foregoing cases, be rendered against the defendant, contrary to the provisions of the statutes, the defendant may reverse the judgment, upon writ of error.3

An executor or administrator cannot be compelled to defend any suit, until one year from the time of taking upon himself the trust; actions, therefore, against them, with the exception of those named in the statute, must be continued, until the expiration of the year.

By Stat. 1783. ch. 59. s. 3. it is provided, that all executors and administrators of any estate, shall, upon motion to the court, where any suit is, or may be depending against them, in their said capacity, be enti

1 Stat. 1797. ch. 50. s. 5.

2 Stat. 1794. ch. 65. s. 2.

3 Blanchard v. Wild, 1 Mass. Rep. 342. * Stat. 1788. ch. 66. s. 2.

tled to continuance of the same, until the next term of said court. This provision refers to the case of a defendant's death, pending a suit against him, and his executor or administrator coming in and defending the same.1

Effect of continuance. Where the defendant is out of the Commonwealth, at the time of the service of the writ, the continuance, upon the suggestion of that fact, is by order of law, and is a special one. In the case of Rathbone v. Rathbone,2 it was settled, that where a writ is sued out against a defendant, who is out of the Commonwealth, and the fact is suggested upon the record, and a continuance ordered, that a plea in abatement may be filed, upon the defendant's appearing, at the second term, notwithstanding the continuance. The same reasons, which apply to the case above cited, are equally strong in the case of a set-off. The statute requires the defendant to file his set-off, seven days before the trial; but it will be perceived, that the reason of the statute does not apply, where it appears upon the record, that the party was out of the Commonwealth at that time. Perhaps under such circumstances, the court would put the defendant to his cross-action, and continue the first, until the cross-action was determined.

1 Vide Stat. 1783. ch. 32. s. 10.

2 4 Pick. Rep. 89.

3 Stat. 1784. ch. 28. s. 12.

« AnteriorContinuar »