his own, but done by others, it is sufficient if he states them upon his belief, and more positive averment is not necessary; and an indictment for perjury would lie against a person who, with perfect knowledge that the fact was otherwise, thus denied it.(1)[6]

HOW A PLEA IS SWORN, FILED, AND PROCEEDED WITH.

A plea that is required to be put in upon oath must be signed by the defendant, but the signature of the defendant is not required when the oath is unnecessary. An infant cannot plead until a guardian has been appointed, and if a married woman wishes to plead separate from her husband, she must obtain an order for that purpose. In all cases if the plaintiff is willing to consent, an order as of course may be obtained to dispense both with [ *233 ] the oath and signature of the defendant.

If the plea requires to be sworn to, the defendant may attend at the public office for that purpose, or if he is twenty miles from London, may have a dedimus to take it, which is obtained, executed, and returned, in the manner explained in treating of a dedimus to take an answer, and the plea is filed by the clerk in court, in the same manner as an answer. If the plea does not require to be put in on oath whether the defendant is in, within, or beyond twenty miles from London, it may be filed upon being left for that purpose with the defendant's clerk in court, who enters the same in the Register's office within eight days after it is filed.(2) But the eight days must be eight office days.(3) Otherwise the plaintiff may obtain upon the Registrar's certificate a subpoena for costs, and proceed against the defendant for a better answer.

The plaintiff obtains a copy of the plea from his own clerk in court, and if he considers the plea good, he may, at any time before the plea has been set down, submit to the same, and obtain, as of course, an order to amend his

(1) Drew v. Drew, 2 . & B. 162.

(2) Jordan v. Sawkins, 3 Bro. C. C. 372. Beam. Ord. 174. 287.

(3) Bullock v. Edington, 1 Sim. 481.

bill which is made upon the terms of his paying 20s. costs. If the plea has been set down, the order to amend can only be obtained by the payment of taxed costs.

If the plaintiff thinks the plea, though good in form and substance, is not true in point of fact, he may take issue upon it, which he does by replying to it.(1)[a] The plaintiff may either reply to the plea before the same is set down, or on the coming on of a plea may undertake to reply to it. The replication being filed, a subpoena to rejoin is served, witnesses are examined, the rules entered, [*234] and the cause *set down for hearing in the same manner as if the defendant had answered. If the plaintiff replies to a plea, he can only impeach its truth, not its validity ;(2) and if the defendant proves the truth of the matter pleaded, the suit, so far as the plea extends, is barred, even though the plea is not good either in point of form or substance.(3) Thus if a defendant in a plea of purchase for a valuable consideration omits to deny notice, if the plaintiff replies to it, all the defendant has to do is to prove his purchase, and it is not material if the plaintiff proves notice, for it was the plaintiff's own fault that he did not set down the plea to be argued, in which case it would have been overruled.(4) If the plea is found false at the hearing, the plaintiff is entitled to a decree, and if discovery is necessary, to examine defendant on interrogatories.(5)[a] If a plaintiff replies to the plea of one defendant, and another defendant answers, the plea cannot be heard to decide, as to its being true or false, until the cause is regularly set down for hearing.

(1) Mith. Pl. 240.

(2) 2 Eq. Cas. Ab. 70. (3) Mitf. Pl. 241. (4) Harris v. Ingledew, 3 P. W. 94. (5) Wood v. Strickland, 2 V. & B. 158.

[a] The replication must be general, taking issue upon the matter of the plea. If the complainant desire to avoid the effect of matter pleaded in bar, he must apply to amend the charging part of his bill; and a special replication, filed without leave, will be ordered off the files. Storms v. Storms, 1 Edw. Ch. Rep. 358.

A replication to a plea, is an admission of the sufficiency of the facts pleaded, as a bar, if true; and if upon such an issue, the matter of the plea is proved, the bar is complete. Hughes v. Blake, 6 Wheat. 472; Bogardus v. Trinity Church, 4 Paige, 178; Gernon v. Boccaline, 2 Wash. C. C. Rep. 199; Fish v. Miller, 5 Paige, 26; Daniels v. Taggart's Adm'r, 1 Gill & Johns. 311; The State of Rhode Island v. The State of Massachusetts, 14 Peters, 210. 257; Story's Eq. Pl. 542.

So, it is conclusive, when overruled as false. And where, in partition, the defendant pleaded in bar, that a third person, not a party, had an interest in the premises, as tenant in common, and the plea, upon an issue joined thereon, was overruled as false, it was held, that the defendant could not raise the same question again, by an exception to the Master's report upon the title. Hoxic v. Hoxie, 7 Paige, 187.

[a] Dows v. M Michael, 2 Paige, 245; 1 Hoff. Ch. Prac. 223.

Barret v. Grafton, Charter of the Rolls, 4th April, 1837.[6]

Some pleas require to be set down, others do not. A plea of a former suit depending must not be set down for argument ;(1)[c] but the plaintiff should move to refer it at once to the Master to examine whether the suits are for the same matter, and whether the former suit is now depending.(2) The order of reference may be obtained of course.(3) If the plaintiff does not refer such plea, and obtain the Master's report thereon within one month after such plea is filed, the bill is to be dismissed with costs.(4)

If a defendant, after a plea has been set down, should wish not to argue it, he may obtain an order for liberty to withdraw the plea on payment of taxed costs.

*setting down plea.

[ *235 ]

If the plea requires to be set down, either party may procure an order upon a petition of course to set it down.(5) At the time of presenting the petition, a copy of the bill and of the plea is left with the secretary of the judge, before whom it is proposed to set down the plea, but no deposit is required to be made. The order is usually obtained by the defendant, but he is not bound to set down the plea. The order is drawn up and served in the usual way. It directs that the plea shall be set down within four days after the date of the order. By a recent arrangement pleas are put into the paper for hearing two days after they are set down, therefore, the party obtaining the order must serve it immediately after he sets down the plea, in order that the other party may have two clear days' notice thereof. Each party furnishes his counsel

(1) It is presumed if the plaintiff is advised that the plea is informal, he may set it down for the judgment of the Court on that point. (2) Daniel v. Mitchell, 3 Bro. C. C. 544.

(3) Daniel v. Mitchell, 1 Ves. 484.

(4) Baker v. Bird, 2 Ves. 672. Beam. Ord. 176 and 177.

(5) By the 14th of Lord Coventry's Ordinances, the plea is to be set down within eight days after it is put in Court, or to be disallowed without motion, Beam. Ord. 77, but this is not the practice. It must be entered with the registrar within eight days, which is totally different from being set down for hearing.

[b] A cause must be in readiness for hearing, as to all the defendants, before it can be set down for hearing.

[c] By setting it down, the complainant admits that the two cause, and the plea will be allowed, unless defective in its form. Keen, 632.

suits are for the same Tarleton v. Barnes, 2

with a copy of the bill and plea, and the same comes on for argument in the usual way. If a plea and answer have been put in, the Court and counsel are furnished with a copy, not only of the plea but also of the answer, which will be allowed on the taxation of costs. Pleas are usually heard before the Master of the Rolls, the Vice Chancellor, and but very rarely before the Lord Chancellor. On attending the hearing, each party should be prepared, the one with an office copy affidavit of service of the order to set down the plea, the other with an office copy affidavit of having been served with such order.

If a defendant sets down a plea, and upon its being called on does not appear, the plea will, on an affidavit of the plaintiff's having been served with an order to set down the plea, be overruled, and if no such affidavit is produced the plea will be struck out of the paper.(1) And if the plaintiff sets down the plea, but does not appear, upon a like affidavit from the defendant of having been served with the order, the plea will be allowed.

COSTS OF A PLEA.

Before the General Order of 1828, the costs of a plea whether allowed or overruled, were fixed at 5, although the Court had a discretion to give taxed costs. By 31 N. O. it is ordered that upon the allowance of any plea, the plaintiff or plaintiff's shall pay to the defendant or defendants the taxed costs thereof, and when such plea is to the whole bill, then the further taxed costs of the suit also, unless the plaintiff or plaintiffs shall undertake to reply thereto, and then the costs are to be reserved, or unless the Court think fit to make other order to the contrary.(2) If a plea is overruled, then the defendant pays to the plaintiff the taxed costs occasioned thereby, unless the Court makes other order to the contrary.(3) The costs of a plea are recoverable like those of a demurrer, by subpoena and attachment.

(1) Mazarredo v. Maitland, 2 Madd. 38.

(2) 31 N. O.

(3) 32 N.O.

PROCEEDINGS ON A PLEA Allowed or OVERRULED.

If a plea to part of a bill has been allowed, it generally imposes upon the plaintiff the necessity of amending the bill. In Taylor v. Shaw,(1) it is said that the plaintiff is not at liberty to amend without a special order to be obtained on notice of motion, pointing out the proposed amendments; but the practice has been otherwise, the almost invariable course being, on the allowance of a plea to part of the bill, to obtain an order of course to amend. If a plea for the whole bill is allowed, it puts an end to the suit,[a] but the Court, when the case requires, will, instead of allowing the plea, give the plaintiff liberty to amend upon payment of costs.[b]

If the plea is overruled, the defendant should apply immediately after the hearing of the plea, for time to put in an answer. This the court has power to grant, notwithstanding the New Orders.(2)

After a plea has been overruled the defendant cannot file another plea, or a demurrer without a special order, neither can he after a demurrer has been overruled, file a plea.(3)[c] But, under the strong circumstances of the case, the Court refused to overrule a demurrer put in after a plea had been disallowed.(4) If a demurrer has been taken off the file for irregularity, there seems no objec

(1) 2 S. & S. 12a

(2) Waterton v. Croft, 6 Sim. 431.

(3) Rowley v. Eccles, 1 S. & S. 511.
(4) East India Company v. Campbell, 1 Ves. 246.

[a] See ante, 233, note [a].

[b] Amendments are in the discretion of the Court; Smith v. Babcock, 3 Summer, 410; but then discretion, in this respect, is regulated by the rules known in courts of law, Jefferson's Heirs v. Callis, 4 Dana, 467, and depends upon the good faith and reasonableness of the original defence, and the equitableness of the proposed amendment. See Graham's Prac. 2d ed. 649-670.

Where the defendant, either by plea, demurrer or answer, distinctly takes the objec tion as to want of parties, the complainant should at once amend his bill, by bringing in the necessary parties, before any further proceedings are had in the cause. And if he neglect to do this, it will be in the discretion of the Court, at the hearing, either to permit the cause to stand over, upon payment of costs, to enable the complainant to bring the cause before the Court, or to dismiss the bill, with costs. Van Epps v. Van Deusen, 4 Paige, 64. See Hunt v. Rousmaniere's adm'rs, 2 Mason, 342; Marshall v. Lovelass, 1 Cam. & Norw. 236. 264; Benzein v. Lovelass, 1 Cam. & Norw. 520; Clifton v. Ex'rs of Haig, 4 Desau. 330; Wamburzee v. Kennedy, 4 Desau. 480. [c] See ante, 230, note [a].

Eng. Chan. Reps. i. 323.

Eng. Chan. Reps. ix. 345.

Eng. Chan. Reps. i.260.