Ross Extor Bag v. Cooke

1 Va. Col. Dec. 152

• Court: General Court of Virginia
• Decided: October 15, 1736
• Status: Published

Opinion

The Defend’ts having Pleaded that they were under age and prayed that the Parol might Demur Upon Demurrer Judgm’t was given quod Respondeant Ouster. After which they pleaded in Abatem’t of the Writ, to w’ch the Pit. replied an Imparl, the former Plea & Judgm’t. And thereupon Demurrer & it was Argued for the Pit.

That this Plea being in Abatem’t cou’d not be Pleaded after imparl, which was a known & Settled point. 1 Vent. 76. 137. Sty. 187. 2. Lutu. 22. 24. 8. Mod 43.381. It is true matter of Abatem’t may be Pleaded after a Spl. Imparl. & it is also true that the Deft, here in the Office had a Spl. Imparl, granted, but the Plea, is pleaded. with’t any Notice of it and therefore they have waved & lost the benefit of it

The nature of an Imparl is nothing else but the Continuance of the Cause to a further Day for the Deft, to advise what to Plead Terms of the Law 289. and when the Deft, has any thing to Plead in Abatement with a Pulvis sibi omnibus advantagijo &c. and this is called a Spl. Imparl, after which matter of Abate-m’t may be pleaded as I say’d

In England these spl. Imparlances are granted by the Secundarys in B. R. and the Prothonotaries in C. B. as they are by the Clerk here out of Court and there are various sorts of them, as with a saving Exception to the Writ, to the Writ & Decl., or with a saving of all Exceptions whatsoever Hard. 365. 1. Salk. 1. and when the Deft, comes to plead he shews the nature of his Spl. Impark in his Plea, and this of necessity for two Reasons 1. That the Court may judge whether the matter he pleads is proper after such Impark because if it be not the Plea will be judged nought, for Instance If the Impark be only with a saving to the Writ or Bill he shall not plead to the jurisdiction or any matters in Abatem’t of the Count or Deck 1. Sal. 1. 1. Hard 365. 2. That the Impark may be made a part of the

Record & so are all the preced’ts that I have seen of Spl. Impark 1. Lutu. 6. 44. the Clerk in making up this Record can take no notice of this Impark not being in the Plea. So if tjae Record was made up here as it is in England before tryal it cou’d not appear there had been such Impark Nor will it appear to Posterity And then if Judgm’t is given upon this Record for the Deft, it will not appear but that this Courts opinion was that matter of Abatem’t may be Pleaded after a Gen’l Impark which I presume it is not. From hence I argue the necessity of shewing the Impark in the Plea & that where the Deft, does not do it, tis in effect a waver of it at least this Plea is defective in form the Preced’ts being all ag’t it And in Pleas of Abatem’t which are generally for delay the greatest strictness & nicety of pleading is required, the Reason is because they are not to be Encouraged or favoured. But if this Objection will not hold this Plea, being after another dilatory Plea & a Judgm’t thereupon quod Respondeat Ouster can never be good. Tis as known and settled a Rule as any in Practice that two delatory Pleas shall never be Allowed.

[Here follows a whole page [153] wholly illegible. — W. W. S.]