
    Seth Strange against William Evans.
    
      Columbia,
    
    1801.
    An imparl-RT1CC OF lcftVf4 to plead at a isnottobeal-case on a'sum-nfattertf om!rse> vPoa an appearance entered, tho5 upon reasona-We grounds either paiMj may ha\e a°caus*"
    CASE from Union district.
    Motion to reverse the decision of the circuit court.
    This was a case upon a summary process, m which defendant had regularly entered an appearance, and claimed an imparlance to the second court, but the presiding judge ('Grimice') refused to allow it. Plaintiff then went on, proved V ' ' 1 his case, and got judgment; and this was a motion to re- . verse the decision of the circuit court at Union district.
    In support of the motion, it was urged, that under the fourth clause of the circuit court act of 1789, the plaintiff was entitled to it as a matter of right. This clause declares. iC that all process issuing from said circuit courts shall be “ returnable to the next court, and that all proceedings should “ be made up thereon and ready for trial at the next court “ afterand that it had been the practice of the circuit courts to allow imparlances in all cases where appearances had been regularly entered, under the authority of the above clause, which is general in its nature, and not confined to any particular class of proceedings in our courts of judicature, and extended to cases on summary process, as well as to cases on mesne process.
    To this it was replied, on behalf of the plaintiff, that the above recited clause only extended to and meant cases on mesne process, which were generally cases of importance, and where all the proceedings were in writing, and the pleadings in due form of law. In all such cases, the act allowed an imparlance in order to give the parties an opportunity of drawing up and preparing their pleadings, and filing them within the rules of court, and in many cases of intricacy and doubt, justice could not be done without such indulgence.
    
      But in cases on summary process, which were generally for small sums, and determined by the court without the intervention of a jury, and where all the pleadings were ore tenus, and where parties were heard on both sides, without reducing them to legal form, this indulgence was.not necessary ; and so far from being in furtherance of justice, it would only amount to a delay of justice. That as to the practice of the circuit courts on the construction of the above clause, some judges had conceived themselves bound by the law to allow the imparlance, while others again refused it, so that it had really been fluctuating and uncertain ; but the best rule was, to give the clause such a construction as would rather expedite than delay justice.
   The judges had been aware of the uncertainty and doubt which had prevailed occasionally in our courts on this point of practice, and indeed of the contradictory decisions which had at different times been made upon it; and expressed their surprise, that some case had never been brought up before to the court of appeals to have it settled. They were, therefore, glad of an opportunity of putting this point at rest. Three judges, Gb.IMKe, Johnson and Tuezevant, were of opinion, that no imparlance ought to be allowed as a matter of course in summary process cases, as the very nature and design of the clause in the act of 1789, giving the court this jurisdiction in small cases, intended that the determinations should be speedy, and that the parties should not be hung up or delayed in these summary causes ; but • that where justice required it, the courts would always allow either party to put off such a case, upon reasonable grounds shewn, as in cases at issue on mesne process.

Mr. Justice Waties

said, he had formerly been in the habit of allowing this imparlance, but, upon mature consideration, he thought the opinion of the majority of his brethren was the most correct one.

Bay, Justice, absent at the argument, but afterwards accorded with his brethren, although he also had beet, in the habit of allowing the imparlance, as he had known it frequently allowed while at the bar, before he came on the bench.

The rule for setting aside the decision of the circuit court was, therefore, discharged, and the judgment confirmed.  