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After special

traverse.

concluded with a prayer of judgment. In an action on a bill of exchange, the defendant pleaded want of consideration, concluding with a verification; and the plaintiff, instead of replying by taking issue on the plea, merely added a similiter; and after verdict for the plaintiff, the court held that the record was imperfect, and that there must be a repleader; but to save expense, the plaintiff was allowed to amend, on payment of costs b. It is also a rule, that "all special traverses, or traverses with an inducement of affirmative matter, shall conclude to the country: Provided, that this regulation shall not preclude the opposite party from pleading over to the induceSigning replica- ment, when the traverse is immaterial." If the replication or rejoinder, &c. conclude with a verification, it must be signed by counsel: but by a general rule of all the courts, it is not, we have seen, necessary that any pleadings which conclude to the country should be so signed'.

tions, &c.

Delivery of replications, &c.

Judgment of

non pros for not replying, and demand of repli

cation, &c.

In the King's Bench, when the plea was entered in the general issue book, or delivered to the plaintiff's attorney, the replication and rejoinder, &c. were formerly delivered in all cases to the adverse attorney; but otherwise they were filed in the office of the clerk of the papers: and a similiter to the general issue must have been delivered, or the defendant would have been entitled to sign a judgment of non pros 8. In the Common Pleas, the replication or rejoinder, &c. were either filed in the prothonotaries' office, or delivered to the defendant's attorney. But, by a general rule of all the courts ", "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."

If the plaintiff do not reply, surrejoin, or surrebut, &c. within the time limited by the rule, or obtain an order for further time, the defendant may in general sign a judgment of non pros: and it was not formerly necessary for him, in the King's Bench, to demand a replication, &c.; the service of a copy of the rule being deemed in that court a demand of itself. In the Common Pleas, a replication, &c.

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must have been demanded in writing by the defendant's attorney, before judgment was signed: And, by a general rule of all the courts", "no judgment of non pros shall be signed for want of a replication, or other subsequent pleading until four days next after a demand thereof shall have been made in writing upon the plaintiff, his attorney or agent, as the case may be." But, by a subsequent regulation," service of a rule to reply, or to plead any subsequent pleading, shall be deemed a sufficient demand of a replication, or such other subsequent pleading." By this regulation, service of a rule to reply, or to plead any subsequent pleading, is necessary d. And where, on the 5th of August, the defendant delivered his plea, and on the same day served a rule to reply, and the plaintiff not having replied, the defendant, on the 27th of August, signed judgment of non pros, the court were of opinion, that as the plaintiff was prevented, by the operation of the statute 2 W. IV. c. 39. § 11o, from delivering his replication, it followed that the defendant could not sign judgment for want of it, having allowed the 10th of August to go by, and therefore that the judgment was irregular; and they made the rule absolute for setting it aside, with costs. Where a defendant was under terms of rejoining gratis, and the plaintiff signed judgment for want of a rejoinder, when he might have himself added a similiter, the court set aside the judgment, but without

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CHAP. XXIX.

To the whole, or tion, plea, repli

part of declara

cation, &c.

Of DEMURRERS, and AMENDment.

Demurrer what. A DEMURRER admits the facts, and refers the law arising thereon to the judgment of the court; and it is either to the whole, or part of a declaration, or to the plea, replication, &c. When there are several counts in a declaration, some of which are good in point of law, and the rest bad, the defendant can only demur to the latter; for if he were to demur generally to the whole declaration, the court would give judgment against him b. So, if the sum demanded by a declaration in scire facias be divisible on the record, and there be no objection to one part of it, a demurrer which goes to the whole is bad. If a plea or replication, which is entire, be bad in part, it is in general bad for the whole d: But a plea of set off, wherein the demands are divisible, and in nature of several counts in a declaration, forms an exception to this rule ".

General or special.

Special, when defendant is

Demurrers are general or special: the former are to the substance, the latter to the form of pleading: Thus, if a defective title be alleged, it is a fault in substance, for which the party may demur generally; but if a title be defectively stated, it is only a fault in form, which must be specially assigned for cause of demurrers. In the King's

Judin

Spyer

Co. Lit. 71. b. Leaves v. Bernard, 5
Mod. 132; and see Tidd Prac. 9 Ed. 694.
1 Wms. Saund. 5 Ed. 286. (9.) 2
Wms. Saund. 5 Ed. 380. (14.) Duke of
Bedford v. Alcock, 1 Wils. 248.
v. Samuel, 1 New Rep. C. P. 43.
(or Spiers) v. Thelwell, 2 Cromp. M. &
R. 692. 1 Tyr. & G. 191. 1 Gale, 348.
S. C. Fergusson v. Mitchell, 4 Dowl.
Rep. 513. 2 Cromp. M. & R. 687. 1
Tyr. & G. 179. 1 Gale, 346. S. C. Price
v. Williams, 1 Meeson & W. 6. 1 Tyr.
& G. 197. S. C. Wainwright v. John-
son, 5 Dowl. Rep. 317.

Powdick v. Lyon, 11 East, 565.
d] Wms. Saund. 5 Ed. 28. (2.) 337.

(1.)
Ed.
312.
40.

Webber v. Tivill, 2 Wms. Saund. 5 127. b. c. Parker v. Atfeild, 1 Salk. Trueman v. Hurst, 1 Durnf. & E. Duffield v. Scott, 3 Durnf. & E. 874. Crump v. Adney, 1 Cromp. & M. 362. 3 Tyr. Rep. 279. S. C. Tremeere v. Morison, 1 Bing. N. R. 72. 96; and see 1 Chit. Pl. 4 Ed. 464, 5. Steph. Pl. 159, &c.

e Dowsland v. Thompson, 2 Blac. Rep.

910.

f Co. Lit. 72. a. Steph. Pl. 1 Ed. 61, 2. 159, 60.

8 As to demurrers at common law, and by stat. 27 Eliz. c. 5. & 4 Ann c. 16. see Tidd Prac. 9 Ed. 694, 5.

his at

under terms of pleading issuably.

rer.

Statement of

matter of law,

in margin of.

Bench, the defendant, when under terms of pleading issuably, could not formerly have demurred specially to the replication; and if he did, the plaintiff might have signed judgment as for want of a plea a. But it is now holden in that court b, as well as in the Common Pleas c and Exchequer, that the condition of pleading issuably applies only to the stage of the proceedings in which it is imposed, and does not affect subsequent proceedings: Therefore, where a defendant, being under terms of pleading issuably, puts in an issuable plea, to which the plaintiff replies, the defendant may demur specially to the replication b. The form of a demurrer was directed, by a late statutory rule of Form of demurpleading, to be as follows: "The said defendant, by torney, (or in person, &c. or the said plaintiff) says that the declaration (or plea, &c.) is not sufficient in law," shewing the special cause of demurrer, if any. And, by another rule it is ordered, that "in the margin of every demurrer, before it is signed by counsel, some matter in law intended to be argued shall be stated; and if any demurrer shall be delivered without such statement, or with a frivolous statement, it may be set aside as irregular by the court or a judge, and leave may be given to sign judgment as for want of a plea: Provided, that the party demurring may, at the time of the argument, insist upon any further matters of law, of which notice shall have been given to the court in the usual way." This rule, however, does not extend to revenue causes §. Upon this rule, the court of Exchequer granted a rule nisi, for setting aside a frivolous demurrer, stating several causes of demurrer for which there was clearly no foundation, with a note in the margin, specifying the grounds of demurrer assigned. And where a declaration stated a promise to the plaintiff and A. B. now deceased in his life-time, and in a second count stated that the defendant was indebted to the plaintiff and the said A. B. in his life-time, but did not aver that he was deceased, the defendant having demurred to the second count, the court held that the demurrer was frivolousi: and

Sawtell v. Gillard, 5 Dowl. & R. 620. b Barker r. Gleadow, 5 Dowl. Rep. 134. 12 Leg. Obs. 388. S. C.

Betts v. Applegarth, 4 Bing. 267. 12 Moore, 501. S. C.

d Gisborne v. Wyatt, 3 Dowl. Rep. 505. 1 Gale, 35. 10 Leg. Obs. 46. S. C.

e R. Pl. Gen. H. 4 W. IV. reg. 14. 5 Barn. & Ad. Append. vi. 10 Bing. 468. 2 Cromp. & M. 17, 18. And for forms of demurrers to declarations, pleas, or replications, &c. see 1 Chit. Jun. Pl. 26,

&c.; and of special causes of demurrer
thereto, id. 28, &c.

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

Rex v. Woollett, 3 Dowl. Rep. 694. 1 Gale, 157. 2 Cromp. M. & R. 256. 5 Tyr. Rep. 786. 10 Leg. Obs. 285. S. C.

h Kinnear v. Keane, 3 Dowl. Rep. 154. 9 Leg. Obs. 60. S. C.

i Undershell v. Fuller, 1 Cromp. M. & R. 900. 5 Tyr. Rep. 392. S. C.

Further matters of law may be insisted on in argument.

When set aside

as frivolous, and when not.

it being so late in the term that there was not sufficient time to set it down for argument, they would only let the defendant in to plead on an affidavit of merits, pleading instanter, and paying the costs of the demurrer, and the application. It is not sufficient to state as a ground of demurrer to a declaration, in an action by an attorney, that he seeks to recover for "materials" supplied by him to his client b. And in an action for a libel, it is not a sufficient statement in the margin, of the cause of demurrer to a plea, that it is no justification of the libel : But it is sufficient to state that the pleas are bad, for the causes specially assigned in the demurrer. And the court refused to set aside a demurrer as frivolous, on the ground that the declaration, which was in debt on a promissory note, did not shew that the words "value received" were in the note. So, where a declaration upon a bill of exchange stated that on a certain day, the plaintiff made his bill of exchange, payable one month after date," which period has now elapsed," following the form given in the rule of Trin. 1 W. IV. Sched. No. 4, to which there was a special demurrer, on the ground that it did not appear that the bill was due at the time of commencing the suit, the court refused to set aside the demurrer as frivolous f: and they refused to set aside a demurrer, in an action of assumpsit by two plaintiffs, where the allegation in the declaration was, that the defendant was indebted to the plaintiff, and not to the plaintiffs, which was the ground of demurrer marked in the margin 8. It is necessary, in these cases, to bring the matter before the court, either on an affidavit, stating the pleadings, &c. or to draw up the rule, on reading the declaration, plea, or demurrer 1, &c. And therefore where a rule for setting aside a demurrer, on the ground of its being frivolous, was drawn up on reading the affidavit only, which affidavit was insufficient, the court discharged the rule'. If the point intended to be raised is not stated in the margin of the demurrer, this is not it seems a sufficient objection to its being argued the rule in such case only enables the opposite party to set aside the demurrer k.

495.

Underhill v. Hurney, 3 Dowl. Rep.

Fisher v. Snow, 3 Dowl. Rep. 27. Ross v. Robeson, 1 Gale, 102. 3 Dowl. Rep. 779. 10 Leg. Obs. 348. S. C. d Berridge v. Priestley, 5 Dowl. Rep. 306. 13 Leg. Obs. 239. S. C.

e Cresswell v. Crisp, 2 Dowl. Rep. 635. 9 Leg. Obs. 44. S. C. Lyons v. Cohen, 3 Dowl. Rep. 243. per Parke, B.

Aslett v. Abbott, 1 Tyr. & G. 448.

Abbott v. Aslett, (or Arlett,) 1 Meeson & W. 209. 4 Dowl. Rep. 759. S. C.

Tyndall v. Ullithorne, 3 Dowl. Rep. 2. 9 Leg. Obs. 60, 61. 205, 6. S. C. per Littledale, J.

1 Cromp. M. & R. 900. (a.) Howorth v. Hubbersty, 3 Dowl. Rep.

455. 1 Cromp. & M. & R. 900. (a.) 9 Leg. Obs. 430. S. C.

* Lacey v. Umbers, 3 Dowl. Rep. 782.

10 Leg. Obs. 286. S. C.

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