delivered, or filed. All demurrers, whether general, or special, must be signed by All demurrers must be signed. counsel, or a serjeant; or by the attorney-general, in a revenue cause b. In the King's Bench, all general demurrers to the declara- When formerly tion must have been formerly delivered to the plaintiff's attorney; but special demurrers, or general demurrers after special pleas, must have been filed in the office of the clerk of the papers, who made copies of them; and a general demurrer to part of a declaration, and the general issue to the rest, or a general demurrer to a plea of nil debet in an action of debt on bond, must have been delivered to the opposite attorney, and not filed with the clerk of the papers. In the Common Pleas, all demurrers, whether general or special, might either have been filed in the prothonotaries' office, or delivered to the opposite attorney. But by a general rule of all the courts 8, "no demurrer Must now be deshall in any case be filed with any officer of the court, but the same shall always be delivered between the parties." livered in all cases, between the parties. Rule to join in demurrer. In the King's Bench, when either party demurred, he formerly obtained a rule from the master, and entered it with the clerk of the rules, for the opposite party to join in demurrer h; a copy of which rule was duly served. In the Common Pleas, a rule to join in demurrer was given with the secondaries 1, in like manner as the rule to plead; and a joinder in demurrer must have been demanded before judgment: But, by a general rule of all the courts', "no rule for join- Not now reder in demurrer shall be required; but the party demurring may demand quired. a joinder in demurrer, and the opposite party shall be bound, within four days after such demand, to deliver the same, otherwise judgment." in demurrer. The form of a joinder in demurrer was directed by a late statutory Form of joinder rule of pleading", to be as follows: "The said plaintiff (or defendant) says that the declaration (or plea, &c.) is not sufficient in law." In the Common Pleas, a joinder in demurrer must formerly have had a Need not be signed. Amendments at common law, or by statute. Offines and re coveries. Fines made valid, without amend ment. serjeant's hand; but in the King's Bench and Exchequer, it need not it seems have been signed by counsel b: And now, by a general rule of all the courts," to a joinder in demurrer, no signature of a serjeant or other counsel shall be necessary, nor any fee allowed in respect thereof." Amendments are either at common law, or by statute: and, when the amendment is by statute, it is a general rule that there must be something to amend by. In compliance with this rule, it was holden that fines and recoveries, being considered as common assurances, might be amended by the court of Common Pleas, when they had sufficient authority, so as to effectuate the intention of the parties. The ground upon which the court proceeded, in making these amendments, was the statute 8 Hen. VI. c. 12, which authorized them to amend the misprision of the clerk; and as the præcipe was the cursitor's instruction for an original writ, so a deed to lead or declare the uses was considered as his instruction for a fine or recovery. But fines and recoveries being abolished by the statute 3 & 4 W. IV. c. 74. there is a clause therein, that" if it shall be apparent, from the "deed declaring the uses of any fine already levied, or hereafter to "be levied, that there is in the indentures, record, or any of the proceedings of such fine, any error in the name of the conusor or conusee of such fine, or any misdescription or omission of lands in"tended to have been passed by such fine, then and in every such Brooker v. Simpson, 2 Bos. & P. b Thynne (or Pim) v. Woodman, 2 © R. Pr. H. 4 W. IV. reg. 4. 5 Barn. d For amendments at common law, see Tidd Prac. 9 Ed. 696, 7. 711; by statute, id. 712; in real actions, id. 699; in ejectment, id. 1206, 7; in penal actions, id. 711, 12; of mesne process, id. 130. 161. 448, 9. (ante, 107, 8;) of the declaration, id. 426, 7. 602, 3. 697, 8. 707,8; of rules of court, id. 506; of pleas, and replications, &c. id. 697. 708, 9, 10. (ante, 412, 13;) of writs of inquiry, id. 573, 4; of jury process, id. 926; of variances between evidence and record, Post, Ch. XXXVII.; of the postea, and verdict, id. 713. 901, 2; of special verdicts, id. 713. 897; of special cases, id. 899; of judgments, id. 713. 942; of executions, id. 713. 999; of rolls, &c. id. 707, 8. 712. 732; of writs of scire facias, id. 1123; of writs of error, id. 1161, &c.; after demurrer, or joinder, id. 709, 10; after argument on demurrer, id. 710, 11; after nonsuit or verdict, id. 697. 709; after error brought, id. 714; and of proceedings in inferior courts, id. 714, 15. Tidd Prac. 9 Ed. 713. Loggin, demandant; Rawlins, tenant; Barnes, 22; and for the cases in which fines and recoveries were, or were not amendable, before the statute 3 & 4 W. IV. c. 74, see Tidd Prac. 9 Ed. 699. 701. 66 case the fine, without any amendment of the indentures, record, or "proceedings, in which such error, misdescription, or omission shall "have occurred, shall be as good and valid as the same would have been, " and shall be held to have passed all the lands intended to have been I passed thereby, in the same manner as it would have done, if there "had been no such error, misdescription, or omission." On this clause, the court refused to amend a fine, in a case of mis-description cured by the statute. And they would not amend the warrant of attorney for suffering a recovery, even to the extent of transposing names placed in a wrong order b. valid, without amendment. By another clause of the same statute", "if it shall be appa- Recoveries made "rent, from the deed making the tenant to the writ of entry, or other "writ for suffering a common recovery, already suffered, or here"after to be suffered, that there is in the exemplification, record, or "any of the proceedings of such recovery, any error in the name of "the tenant, demandant, or vouchee in such recovery, or any misde"scription or omission of lands intended to have been passed by such 66 recovery, then and in every such case the recovery, without any "amendment of the exemplification, record, or proceedings in which "such error, misdescription, or omission shall have occurred, shall be as good and valid as the same would have been, and shall be held to "have passed all the lands intended to have been passed thereby, in "the same manner as it would have done, if there had been no such "error, misdescription, or omission. Provided always, that nothing " in this act contained shall lessen or take away the jurisdiction of any "court, to amend any fine or common recovery, or any proceeding "therein, in cases not provided for by this act." d 66 Saving jurisdic tion, in cases not provided for. CHAP. XXX. Issue, what. General or special. By whom, when, ly made up. Of the ISSUE; and ENTRIES of PROCEEDINGS on AN issue is defined to be a single, certain, and material point, issuing out of the allegations or pleadings of the plaintiff and defendant a; but it more commonly signifies the entry of the allegations or pleadings themselves: And it is either in law, upon a demurrer; or in fact, which is triable by the court, upon nul tiel record, or by a jury, upon pleadings concluding to the country b. The issue, as dependent on the pleadings, is general or special. The former is made up where the defendant pleads the general issue, or common plea in denial of the contract or wrong stated in the declaration. The latter is made up where the defendant pleads one or more special pleas, either alone or jointly with the general issue, in confession and avoidance of the contract, or excuse or justification of the wrong, or in discharge of the cause of action. In the King's Bench, in every action wherein the defendant pleaded and how former- the general issue, or demurred generally to the declaration; on a plea of plene administravit by an executor or administrator; in debt, when the defendant pleaded a special non est factum, comperuit ad diem to a bail bond, or nul tiel record to an action on a judgment or recognizance; in covenant, when his plea concluded to the country; and in trespass, when he pleaded son assault demesne, liberum tenementum, or not guilty to a new assignment, the issue was formerly made up by the attornies; who likewise made up all issues and demurrers upon writs of error, scire facias, and audita querela, and repleaders, or other matters formerly entered of record. And upon a general demurrer to a plea of nil debet, in an action of debt on bond, the demurrer book was made up by the plaintiff's attorney, and not by the clerk of the papers d. In all other cases, both by bill and 2 Co. Lit. 126. a. b Tidd Prac. 9 Ed. 717. And as to the Chap. XXX. p. 717, &c. R. T. 12 W. III. (a.) K. B. d Herbert v. Taylor, 5 Barn. & C. 766. 8 Dowl. & R. 609. S. C. original, in the King's Bench, the issue, or as it was commonly termed the paper book, or upon an issue in law the demurrer book, was made up by the clerk of the papers; who charged the plaintiff's attorney eight pence per folio for the whole book, and four pence per folio for all the pleadings subsequent to the declaration, of which the plaintiff's attorney furnished him with a copy. In the Common Pleas, the issue was in all cases made up by the plaintiff's attorney, or, in country causes, by his agent. But, by a general rule of all the courts, "the By whom now issue, or demurrer book, shall on all occasions be made up by the suitor, his attorney or agent, as the case may be, and not, as heretofore, by any officer of the court." Formerly, when the plaintiff in his replication concluded to the country, or demurred, the issue, in the King's Bench, could not have been made up till a four day rule had been given and expired, to rejoin, or join in demurrer: but the practice in this respect was afterwards altered, and it was settled that in all special pleadings, where the plaintiff took issue upon the defendant's pleading, or traversed the same, or demurred, so as the defendant was not let in to allege any new matter, the plaintiff might make up the paper book, without giving a rule to rejoin ; but otherwise a rule must have been given for that purpose, unless the defendant was bound by a judge's order to rejoin gratis. In the Common Pleas, when the plaintiff's replication concluded to the country, he could not regularly have made up the issue, without previously giving a four day rule to rejoin, unless the defendant were under terms of rejoining gratis e. But, by a general rule of all the courts, "in all special pleadings, where the plaintiff takes issue on the defendant's pleading, or traverses the same, or demurs, so that the defendant is not let in to allege any new matter, the plaintiff may proceed, without giving a rule to rejoin." made up. Making up issue, without giving rule to rejoin. fore stat. 2 W. The issue contains an entry or transcript of the declaration, and Contents of, beother subsequent pleadings; and, in actions by bill in the King's Bench, it was formerly made up of the term in which it was joined ; and was prefaced in that court with a memorandum, stating the exhibiting of the bill, and that there were pledges for the prosecution a Callaghan v. Pennell, Say. Rep. 97; ut see Thompson v. Tiller, 2 Str. 1266. b Tidd Prac. 9 Ed. 717, 18. с R. Pr. H. 4 W. IV. reg. 5. 5 Barn. & Ad. Append. xiv. 10 Bing. 453. 2 Cromp. & M. 2; and see 3 Rep. C. L. Com. 28. d R. T. 1 Geo. II. (a.) K. B. e Tidd Prac. 9 Ed. 483. 718. R. H. 2 W. IV. reg. I. § 108. 3 Barn. & Ad. 390. 8 Bing. 305. 2 Cromp. & J. 198. Wood v. Miller, 3 East, 204. |