INTRODUCTION lxxxix

the formalized entries found in English form books in actions on the case (at-
tach iatus fuit) and does not indicate use of attachment pursuant to the 1692 law. 21

Pleadings

As noted above, plaintiff might serve his declaration with the capias but in
any event was required by rule of court to file it with the clerk within twenty days
after the end of the Appearance Court. Many declarations are set forth verbatim in
the Liber. They show consistent and close adherence to English common law
forms. Even in those cases where English form books provided little guidance,
the draftsmanship was professional and certainly at odds with any "frontier
jurisprudence" theory. 22

Having been granted an imparlance, some defendants appeared in person at
the next court and instead of answering the declaration confessed judgment or
stated they could make no answer. In other cases when plaintiff's attorney prayed
that defendant answer to the declaration, defendant's attorney appeared and
stated that he was not informed by his client of any answer to the allegations con-
tained in the declaration. The court thereupon proceeded to render judgment
for plaintiff by confession, by nihil dicit or by non sum informatics, as the case
might be.

In some cases plaintiff appeared in court by his attorney and prayed that de-
fendant answer to plaintiff's declaration, but the defendant "being solemly called
came not but made default." The court thereupon rendered judgment for plain-
tiff. There is no evidence in the Liber of any formal procedure for opening up a
default judgment. However, in one case in the January 1696/7 court it appeared
that Edward and Dudley Carleton at the preceding term had obtained a judg-
ment against George Young by default but Ninian Beall and John Short came
into court and made oath that they believed that Young had paid the tobacco in
question to the Carletons. The court, by the circumstances mentioned in the oaths
believing this to have been done, ordered that the judgment obtained should be
remitted, with Young paying all the costs of suit. 23

However, in most cases after an imparlance had been granted, the defendant
filed a plea or answer. In most cases the plea was of the general issue; irf'some,
special pleas were filed. In a few cases a demurrer was filed. From the Liber alone
it would appear that the pleading took place in open court but this is unlikely.
A September 1696 order of the court provided that the attorneys "file all their
pleas and make up the Issues the first day of Every Court that the Said Actions Shall
be for tryall." 24 Copies of file papers for several county courts and the Provincial
Court, a few years later in date than the Liber, indicate the mechanics of making
up the issue. In some cases the subsequent pleadings were entered seriatim on the
back of the declaration and signed by respective counsel. In others a plea was filed
by defendant on a separate sheet of paper and the subsequent pleas subscribed
thereon. If a demurrer were filed by defendant, joinder therein might be filed

21. See for example infra 29, 73, 75, 79, 82, 83, 85, 86.

22. See infra 61-62, 76-78, 235-39, 415-16. See also the declarations relating to protested bills of
exchange. Infra 148-49, 230-32, 467-68, 569-70, 603-04.

23. Infra 154.

24. Infra 42. This was similar to the rules and orders in Charles County which provided, "That
all pleas Replications, Rejoyndures, Rebutters and demurrers Even to the makeing up of the
issues be filed perfected and made by the End of the first day of Every Court respectively under
the penalty of... Judgment goeing against his Clyent at the discretion of the Court." CCCR,
Liber S, No. 1, 62.