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Adding special

plea.

Amending pleas, &c.

which separately need only have been delivered ". In the Common Pleas, all pleas, whether general or special, were either delivered to the plaintiff's attorney, or filed with the prothonotaries. But now, by a general rule of all the courts b, "no pleading subsequent to the declaration, shall in any case be filed with any officer of the court, but the same shall always be delivered between the parties." This rule does not apply to actions of ejectment, in which the plea of the general issue is still left at a judge's chambers in the King's Bench, or the prothonotaries' office in the Common Pleas, according to the old practice ©.

After the defendant has pleaded, he may obtain leave from the court or a judge to add a special plea, if necessary for his defence: and this leave was granted in one case, after two terms had elapsed since the first pleas were pleaded a; and in another, after issue joined twelve months before : And the court permitted the defendant to add a special plea, where it was doubtful whether a statutable objection could be taken under the plea of non assumpsit. But where, in an action of covenant on a charterparty, the defendant pleaded several special pleas, to some of which the plaintiff demurred, and after argument obtained judgment, the court held that the defendant could not afterwards file additional pleas, although it was sworn that facts had come to his knowledge material for his defence, since the argument on demurrer, and with which facts he was then unacquainted . And a defendant, in an action on a banker's check, having pleaded a plea admitting the making of the check, the court would not permit him subsequently to add a plea, that it was not made pursuant to the provisions of the stamp act ".

At common law, when the pleadings were ore tenus at the bar of the court, if any error was perceived in them, it was presently amended. Afterwards, when the pleadings came to be in paper, it was thought but reasonable that the parties should have the like indulgencek. And hence it is now settled', that whilst the pleadings

a Harrison v. Franco, 2 East, 225; and see Tidd Prac. 9 Ed. 671, 2.

b R. Pr. H. 4 W. IV. reg. 1. 5 Barn.
& Ad. Append. xiv. 10 Bing. 453. 2
Cromp. & M. 1.

Doe d. Williams v. Williams, 4 Nev.
& M. 259. 2 Ad. & E. 381. S. C.
d Waters v. Bovill, 1 Wils. 223.

e Brown v. James, Barnes, 362; and
see Huber v. Steiner, 4 Moore & S. 328.
2 Dowl. Rep. 781. S. C. Tidd Prac. 9
Ed. 673, 4.

Smith v. Dixon, 4 Dowl. Rep. 571. 1

Har. & W.668. 11 Leg. Obs. 388. S. C.

Munnings v. Lennox, 12 Moore, 133; and see Farebrother v. Worsley, 1 Price, N. R. 70. 1 Tyr. Rep. 437. 1 Cromp. & J. 563. S. C.

Jenkins v. Creech, 5 Dowl. Rep. 293. Me Dowall v. Lyster, 2 Meeson & W. 52. Anon. 13 Leg. Obs. 143.

i Rush v. Seymour, 10 Mod. 88. Garner v. Anderson, I Str. 11.

15.

Anon. 2 Salk. 520. Gilb. C. P. 114,

1 Anon. 1 Salk. 47. Anon. 3 Salk. 31.

WAIVING, AND ABIDING BY PLEAS, &c.

are in paper, and before they are entered of record, the court or a judge will amend the plea, or replication ", &c. in form or in substance, on proper and equitable terms. In the Common Pleas, the court allowed several avowries in replevin to be amended, by altering the name and description of the locus in quo, and stating the holding to have been for a year, instead of half a year, and also by adding new avowries, varying the amount of the rent, although issue had been joined, and notice of trial given and countermanded, and more than two terms had elapsed previously to the application for the amendment: And a plea was allowed to be amended in the Exchequer, after the plaintiff had replied, and the cause was in the paper, under special circumstances d.

413

Rule or order to abide by special plea, or demurrer.

In the King's Bench, the defendant was formerly allowed to waive Waiving general the general issue, if it were not entered, and plead specially, without issue, in K. B. leave of the court, in four days; or, as it should seem, before the adjournment day of the term, or within the first five days of the ensuing term 8: But, by a general rule of all the courts", "the defendant shall not be at liberty to waive his plea, without leave of the court or a judge." By the ancient practice of the King's Bench, if a special plea had been put in, and the book made up and delivered to the defendant's attorney, he might, if not under terms of pleading issuably, have struck out the special plea or demurrer, and returned it with a general issue, or general demurrer. To prevent this, if the defendant pleaded a dilatory or frivolous plea, the court in term time, or a judge in vacation, would have ordered him to abide by it, or plead some other plea peremptorily on the morrow; or, if it were towards the end of the term, that the plaintiff might have sufficient time to give notice of trial, the court would have ordered the defendant, if he would not abide by this plea, to plead another instanter, provided always that the time allowed by the common rule to plead were expired1: and the practice was the same, with regard to frivolous demurrers'. But now, Abolished. since the rule of Hil. 2 W. IV. reg. I. § 46. by which the defendant is

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Barn. & Ad. 380. 8 Bing. 294. 2 Cromp.
& J. 181.

i Pierce v. Blake, 2 Salk. 515. R. T.
5 & 6 Geo. II. b. K. B. Weld v. Ned-
ham, 1 Wils. 29.

Foster v. Snow, 2 Bur. 781. 2 Ken. 483- S. C.

1 Pierce v. Blake, 2 Salk. 515. R. T. 5 & 6 Geo. II. b. K. B.; and see Nagee v. Dean, 2 Leg. Obs. 44. per Taunton, J.

Striking out pleas.

Setting aside pleas.

not at liberty to waive his plea without leave of the court or a judge, the former practice of obtaining a rule or order for the defendant to abide by his plea is abolished a. In a late case, however, after a bad plea of "no consideration," to a declaration on a bill of exchange, by which the plaintiff had been delayed the long vacation, the court, under special circumstances, allowed the defendant to withdraw his plea, and plead de novo, and have an inspection of the bill, without an affidavit of merits b.

When there are two pleas to the whole action, upon one of which issue is joined to the country, and upon the other judgment is given for the defendant upon demurrer, the court will allow the defendant to strike out the general issue. And where, in an action on a bill of exchange, by indorsee against acceptor, the defendant, having obtained an inspection of the bill, pleaded pleas denying the acceptance, the drawing, and the indorsement, and also a plea founded on the 3 & 4 W. IV. c. 97. § 17. that the bill was written on paper improperly stamped with an old die, the court struck out the last plead. When the defendant pleads a release fraudulently obtained from the nominal plaintiff, to the prejudice of the party really interested, and for whose benefit the action is brought, or from one of several plaintiffs to the prejudice of the rest, the court on motion will set aside the plea, and order the release to be delivered up to be cancelled o. And where one of several plaintiffs, assignees of a bankrupt, released the cause of action, and the release was pleaded, the court set aside the plea; suspicion being thrown on the defendant's conduct in the transaction, and the co-plaintiffs indemnifying the plaintiff who had given the release, against costs. But except a very strong case of fraud be made out, the court will not control the legal power of a co-plaintiff to release the action 8. And in an action of covenant, where the defendant pleaded payment to the plaintiff on the record, who was only the nominal party to the suit, there being no fraud alleged, the court would not order the plea to be taken off the file h So, they would not allow a plea to be set aside by affidavit on motion, on

497.

C

1 Chit. Archb. 2 Ed. 254, 5.
Paplief v. Codrington, 4 Dowl. Rep.

Young v. Beck, 3 Dowl. Rep. 804. 10 Leg. Obs. 349. S. C.; and see Tidd Prac. 9 Ed. 673, 4.

d Dawson v. Macdonald, 2 Meeson & W. 26. Ante, 343. 412.

Tidd Prac. 9 Ed. 677, 8, and the

cases there referred to.

f Johnson v. Holdsworth, 4 Dowl. Rep. 63. 10 Leg. Obs. 475. S. C.

Jones v. Herbert, 7 Taunt. 421; and see Arton v. Booth, 4 Moore, 192. Furnival v. Weston, 7 Moore, 356.

h Gibson v. Winter, 1 Har. & W. 436.

which an issue could be taken. And although a plea may be insufficient in point of law, the court will not set it aside, and suffer judgment to be signed as for want of a plea. So, if a plea was a good plea when pleaded, but by the occurrence of subsequent matter becomes no answer to the action, the court will not on that account direct it to be taken off the file: Therefore where, to a scire facias to revive a judgment, the defendant pleaded the pendency of a writ of error, the court refused to permit that plea to be taken off the file, on the writ of error being quashed c.

a La Forest v. Langan, 4 Dowl. Rep. 642. 1 Hodges, 410. 11 Leg. Obs. 310. S. C.

↳ Cowper v. Jones, 4 Dowl. Rep. 591.

1 Har. & W. 642. 11 Leg. Obs. 324. S. C.

Snook v. Maddox, 1 Har. & W. 584.

CHAP. XXVIII.

Rule to reply.

When it expires.

Proceedings by plaintiff, after plea.

Rule to discontinue.

Of REPLICATIONS, and SUBSEQUENT PLEADINGS.

WHEN the defendant has delivered his plea, he may rule the plaintiff to reply thereto a, by obtaining a rule from the master in the King's Bench, on the back of the plea; which is entered with the clerk of the rules, and a copy served on the plaintiff's attorney. In the Common Pleas, the rule to reply is given on a præcipe, with the secondaries; and in the Exchequer, it is given in like manner, in a book kept for that purpose in the Exchequer office b. This rule might formerly have been given in term, or within sixteen days after, in the King's Bench, or Exchequer d. But now, by a general rule of all the courts," a rule to reply may be given at any time, when the office is open." The rule to reply expires in four days exclusive after service in the King's Bench; and Sunday, or any holiday on which the court does not sit, or the office is not open, if it be not the last, is to be accounted a day within the rule.

Within the time limited by the rule to reply, or order for further time, if the plaintiff mean to proceed in the action, he should either reply or demur to the plea; or if it be well founded in point of fact, and unobjectionable in point of law, he should discontinue his action 8, enter a nolle prosequi1, stet processus 1, or cassetur breve k; or, in an action against an executor or administrator, take judgment of assets in futuro1, &c.

The rule to discontinue is a side bar or treasury rule, obtained from the clerk of the rules in the King's Bench or Exchequer, or

a Tidd Prac. 9 Ed. 676. Append. thereto, Chap. XXVIII. § 1, 2, 3.

b Dax Ex. Pr. 1 Ed. 61.

Imp. K. B. 10 Ed. 264.

d R. H. 16 Geo. III. in Scac. Man. Ex. Append. 220. Dax Ex. Pr. 1 Ed. 61.

e R. H. 2 W. IV. reg. 1. § 53. 3 Barn. & Ad. 381. 8 Bing. 295. 2 Cromp. & J.

182.

f R. T. 1 Geo. II. (a.) K. B.

& Tidd Prac. 9 Ed. 678. Append. thereto, Chap. XXVIII. § 9, 10.

h Tidd Prac. 9 Ed. 681. Append. thereto, Chap. XXVIII. § 11, 12, 13. i Tidd Prac. 9 Ed. 682, 3.

* Id. 683. Append. thereto, Chap. XXVI. § 7.

1 Tidd Prac. 9 Ed. 683. Append. thereto, Chap. XXII. § 10. 21, &c.; and see 1 Chit. Pl. 6 Ed. 577, &c.

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