on. Decisions there be, a sufficient sum to pay for such copies." On this rule it has been determined, in the King's Bench, that if a party seek to make his opponent pay the cost of copies of demurrer books, he must deliver them on the day after the time for his opponent's delivering them expires a : And an affidavit, stating the omission, by one of the parties, to deliver two copies of the demurrer book to the judges, whereupon the adverse party delivered such copies, for which he has not been paid, will not entitle him to object to the adverse party's being heard, unless notice has been given of the intention to make such objection, so as to give such party an opportunity of answering the affidavit. In the Exchequer, the demurrer books ought not to be delivered on Saturday evening, when the argument is to take place on Monday: And in that court, where the defendants having demurred to a replication, the plaintiff entered the cause in the paper for argument, and the defendant accordingly came prepared to argue, but it could not be heard in consequence of there being no joinder in demurrer, nor the demurrer books delivered to the judges, the court, under these circumstances, refused to allow the defendant his costs of the day. If all the demurrer books are not delivered to the judges, by one party or the other, the case will be struck out of the special paper e. But where the defendant has neglected to deliver his demurrer books, and does not appear at the argument to support his pleadings, but has offered to give a cognovit, the court will give judgment for the plaintiff, without requiring the delivery of the defendant's demurrer books. And the court refused to allow a plaintiff to strike a demurrer out of the paper, on the ground of the bankruptcy of the defendant &. Exceptions to be marked in margin, in K. B. In C. P. In the King's Bench it is a rule, that “in all books to be delivered to the judges, the exceptions intended to be insisted upon in argument should be marked by the party who objects to the pleadings, in the margin of the books he delivers": And he should leave a copy of such exceptions, with the two judges to whom he does not deliver books. In the Common Pleas, the exceptions intended to be in a Fisher v. Snow, 3 Dowl. Rep. 27. b Sandall v. Bennett, 4 Nev. & M. 89. 2 Ad. & E. 204. S. C. Darker v. Darker, 2 Dowl. Rep. 88. 6 Leg. Obs. 206. S. C. 4 Howorth (or Howarth) v. Hubbersty, 3 Dowl. Rep. 457. 5 Tyr. Rep. 391. 9 Leg. Obs. 429. S. C. Abraham (or Abram) v. Cook, 3 Dowl. Rep. 215. 9 Leg. Obs. 237. S. C. per Parke, B. Scott v. Robson, 2 Cromp. M. & R. 29. 5 Tyr. Rep. 717. S. C. As to the judgment on demurrer, for the plaintiff or defendant, see Tidd Prac. 9 Ed. 740, 41. Flight v. Glossop, 4 Dowl. Rep. 135. 1 Hodges, 222. S. C. h R. E. 2 Jac. II. K. B. revived by R. H. 38 Geo. III. K. B. Appleton v. Binks, 1 Smith R. 361, 2. per Lawrence, J.; and see Tidd Prac. 9 Ed. 738. sisted upon in argument should also, as in the King's Bench, be marked in the margin of the books, or on separate paper; and if each party take objections to the pleadings of the other, it is said to be the duty of each to deliver books, with the points intended to be made on both sides, stated in the margina. This practice is enforced by several rules of court b; by the last of which it is ordered, that"in all special arguments in this court, notice in writing of the points which are intended to be insisted upon by each of the parties, be delivered to the judges at their chambers, two days before the day on which the case shall be set down for hearing, either by marking the points in the margin of the books delivered to the judges, or on separate paper; and that each of the parties do, within the same time, leave a copy of such notice at the chambers of the Lord Chief Justice, to be delivered to the adverse party, upon his application." On this rule, where either party has neglected to mark the points intended for argument, the court will not allow the case to be argued, but will give judgment against the party guilty of the neglect. And where the plaintiff, on demurrer to a replication, had neglected to give such notice, the court would not allow him to attack the defendant's plea, though they permitted him to offer arguments in support of his replication d. In the Exchequer, where the defendant demurs to any pleading of the In Exchequer. plaintiff, and the court overrules the demurrer, the defendant is at liberty to object to any of the previous pleadings of the plaintiff, if the objection be stated in the margin of the paper books, but otherwise argument. After argument, and judgment for the plaintiff on a special de- Withdrawing demurrer, after murrer, the court will not allow the defendant to withdraw his demurrer, and plead or rejoin issuably, without an affidavit distinctly shewing a ground of defence upon the merits. CHAP. XXXII. Nul tiel record, issue on. Proceedings on plea of judgment recovered, &c. in same court. Of the ISSUE, and TRIAL by the RECORD. THE issue we are now speaking of, arises upon a plea or replication of nul tiel record. When a judgment, or other matter of record, in the same court is pleaded, the plaintiff, instead of replying nul tiel record, may crave oyer of the record pleaded, or at least a note in writing of the term and number roll; and if it be not given him in convenient time, he may sign judgment. This practice was originally confined to pleas in abatement 2, but was afterwards extended to pleas in barb and accordingly it is now settled, that wherever a judgment, or other matter of record, in the same court is pleaded, the party pleading it must, on demand, give a note in writing of the term and number roll, whereon such judgment or matter of record is entered and filed, or in default thereof the plea is not to be received c. In another court. And, by a general rule of all the courts d, "where a defendant shall plead a plea of judgment recovered in another court, he shall in the margin of such plea, state the date of such judgment, and if such judgment shall be in a court of record, the number of the roll on which such proceedings are entered, if any; and in default of his so doing, the plaintiff shall be at liberty to sign judgment as for want of a plea and in case the same be falsely stated by the defendant, the plaintiff, on producing a certificate from the proper officer or person having the custody of the records or proceedings of the court where such judgment is alleged to have been recovered, that there is no such record or entry of a judgment as therein stated, shall be at liberty to sign judgment as for want of a plea, by leave of the court or a judge." This rule does not apply to a plea by an executor, of a Anon. Keilw. 95, 6. Theobald v. Long, Carth. 453. 1 Ld. Raym. 347. S. C. Creamer v. Wicket, Carth. 517. 1 Ld. Raym. 550. S. C. Wilson v. Ingoldsby, 2 Ld. Raym. 1179. Hunter v. Wiseman, 2 Str. 823. • R. T. 5 & 6 Geo. II. (b.) K. B. Imp. C. P. 7 Ed. 292, 3; and see Tidd Prac. 9 Ed. 742. d R. Pr. H. 4 W. IV. reg. 8. 5 Barn. & Ad. Append. xv. 10 Bing. 454. 2 Cromp. & M. 3. Tidd Prac. 9 Ed. 742, 3. judgments recovered against the testator, whereby the assets are absorbed a. To a cognizance for the arrears of an annuity, the plaintiff pleaded that a memorial of the deed, by which the annuity was granted, containing the names of all the witnesses, &c. and the consideration for granting the same, was not enrolled in the court of Chancery; the defendants replied that a memorial of the deed was enrolled, and after setting out the memorial at length, concluded with a prout patet per recordum and verification thereon, which the court held to be sufficient, on demurrer alleging that the conclusion should have been to the country b. And where, to debt on a recognizance of bail, the defendant pleaded that no capias ad satisfaciendum issued, to which the plaintiff replied that a capias ad satisfaciendum did issue, directed to the sheriffs of London, and the defendant rejoined that the original action was brought in Middlesex, and not in London, which the plaintiff denied in his surrejoinder, and concluded with a verification by the record, the court held, on special demurrer, that the conclusion was proper c. Upon a plea in abatement of another action pending in another court for the same cause, concluding with a prout patet per recordum, it is sufficient to satisfy the plea, if a record of a writ be produced d: But where the plaintiff issued two writs, one out of the Common Pleas, which was never served, and the other out of the Exchequer, on which he proceeded to declare; and the defendant pleaded to the action in the Exchequer, another action pending for the same cause in the Common Pleas; the plaintiff replied nul tiel record, and served the defendant with a rule to produce; and the defendant having made up a roll from the præcipe on the file of the Common Pleas, that court ordered it to be cancelled, with costs. And where a defendant, who had been sued in the Common Pleas, signed judgment of non pros, after which the plaintiff proceeded against him in another action for the same cause in the King's Bench, the latter court would not permit him to abandon his judgment of non pros, and plead the pendency of the former action in the Common Pleas a Power v. Izod, (or Fry,) 1 Scott, 119. 1 Bing. N. R. 304. 8 Dowl. Rep. 140. S. C. Richardson v. Tomkies, 9 Bing. 51. 2 Moore & S. 56. S. C. Darling v. Gurney, 2 Dowl. Rep. 101. And as to the manner of concluding pleas and replications of nul tiel record, see Tidd Prac. 9 Ed. 742, 3. Kerbey (or Kirby) v. Siggers, 2 Dowl. e Same v. Same, 4 Moore & S. 481. 2 Pepper v. Whalley, 3 Dowl. Rep. 579. 10 Leg. Obs. 74, 5. S. C. Judgment on plea of nul tiel record, &c. Upon a plea of nul tiel record to a declaration in scire facias in the Exchequer, on a judgment obtained in the court of Great Sessions for Wales, before the passing of the administration of justice acta, the plaintiff was entitled to the judgment of the court, upon producing the certificate and affidavit of the record being in the hands of the officer, in pursuance of the rules of Mich. 1 W. IV. though the actual judgment was not in court b. And where, in debt on a recognizance of bail, the declaration stated the recognizance to have been entered into in an action of debt against J. S. and on the production of the record, on a plea of nul tiel record, it appeared that the original action was on promises, the court allowed the declaration to be amended, on payment of costs, but required a special application for that purpose c. a 11 Geo. IV. & 1 W. IV. c. 70. 569. 4 Dowl. Rep. 139. S. C.; and see Engleheart v. Eyre, 5 Barn. & Ad. 68. 2 Nev. & M. 849. S. C. |