BOOK II. PART 1. Cassetur breve. Issue, &c. Judgment. If you cannot confess and avoid the plea, or deny it, or cannot safely demur to it, you should then enter on the roll a cassetur breve, as directed post, Book IV. Part I. Ch. 20; and upon which neither party will be entitled to costs. Issue, &c.] If issue in fact be joined between the parties, the issue is made up, and they proceed to trial, as in ordinary cases (c). So, if there be a demurrer and joinder, the subsequent proceedings to judgment exclusive are the same as in ordinary cases, and as mentioned post, 658 to 655 (d). As to which party is to begin on the trial, see ante, 268. Judgment.] Judgment for the plaintiff upon verdict is For Plaintiff. peremptory, quod recuperet (e); and therefore, care must be taken at the trial, in cases where damages are the principal object of the action, that the jury (if they find for the plaintiff) assess the damages; otherwise, as an omission in this respect cannot be supplied by a writ of inquiry, a venire de novo must be awarded (f). Judgment for the plaintiff upon demurrer, or on replication of nul tiel record, is not final, but merely a respondeas ouster (g). For Defend. ant. Costs. Judgment for the defendant, in all cases, whether upon verdict, demurrer, or nul tiel record, is that the writ be quashed (h); unless, where the matter pleaded in abatement is some temporary disability, such as infancy, &c., in which case the judgment is, that the plaint remain without day until &c. (i). A plea in abatement, with judgment of respondeas ouster, need not now be entered on the issue, or in the Nisi Prius record (). Costs.] Upon a cassetur breve entered by plaintiff, neither party is entitled to costs (7). If there be a verdict for the plaintiff upon a plea in abatement, as the judgment in that case is peremptory, quod recuperet, he is, of course, entitled to costs as in other cases; and if the plaintiff have a verdict against him, or be non-suited, the defendant shall have costs for the same reason (m). Formerly, neither the plaintiff nor defendant was entitled to costs on a judgment on demurrer to a plea, &c., in abatement (n); but now, by the 3 & 4 W. 4, c. 42, s. 34, either party succeeding on such a demurrer shall be entitled to his costs, as in other cases. replication to a plea of nonjoinder, Chit. (e) See the form of the issue, notice (d) See Chit. Forms, 301, &c. (e) Eichorn v. Lemaitre, 2 Wils. 367; Gilb. C. B. 53: Bowen v. Shapcott, 1 East, 542. (f) Eichorn v. Lemaitre, 2 Wils. 367: Foxwist v. Tremaine, 2 Saund. 211, (n. 3): post, 710. (g) Thompson v. Colier, Yelv. 112: Barker v. Forrest, 1 Str. 532: Bowen v. Shapcott, 1 East, 542: and see Anon., 1 Wils. 302. See the forms, Chit. Forms, 299. (h) Gilb. C. B. 52. See the forms, Chit. Forms, 300. (i) Tidd, 642. See, upon this subject, Com. Dig., Abatement, 1, 14, 15. (k) Pepper v. Whalley, 5 Nev. & M. 437; 1 H. &. W. 480, S. C. (1) Allen v. Moxey, M., 8 G. 2: Pr. Reg. 6: Greenhill v. Shepherd, 12 Mod. 145; Hullock, 126. (m) Afflir v. Constable, T., 13 G. 1: Hullock, 126: Ca. Pr. C. B. 35. (n) Garland v. Erton, 2 L. Raym. 992: 1 Salk. 194, S. C.: Thomas v. Lloyd, 1 L. Raym. 336; 1 Salk, 194, S. C. and see Michlam v. Bate, 8 B. & C. 642; 3 M. & Ry. 91, S. C. BOOK 11. PART L Subsequent Proceedings.] After judgment of respondeas ouster, the defendant has four days to plead (o). This, however, it seems, is in the discretion of the court (p); and it is said, that Subsequent they will sometimes order the defendant to plead instanter, or on the morrow (q). The order invariable to be observed in pleading is thus: I. To the jurisdiction. II. In abatement. I. To the person. 1st. Of the plaintiff. 2nd. Of the defendant. II. To the count. III. To the writ. 1st. To the form of the writ. 2nd. To the action of the writ. III. In bar of the action(r). Pleading a plea in any one of these classes is deemed an acknowledgment that you have no ground for pleading a plea in any of the preceding classes, and a waiver of your right to do so. Therefore, after a judgment of respondeas ouster, you cannot plead a plea in the same or in any preceding degree or class with that which you have already pleaded; but you may plead one in any of the subsequent classes you please (s). Proceedings. Second Issue. In making up the second issue, you must formerly have en- Entry of Protered the plea in abatement and the proceedings on it to the ceedings in judgment of respondeas ouster (t). But the omission of them was no ground for arresting the judgment, or for a new trial. And since R. H., 4 W. 4, s. 15, it has been decided, that a plea in abatement, with judgment of respondeas ouster, need not now be entered on the issue or in the Nisi Prius record (u). in Second We have seen ante, 651, that by the 3 & 4 W. 4, c. 42, s. 10, Declaration after a plea in abatement of the nonjoinder of another person, Action, if the plaintiff commence another action against the original defendant and the party not joined, he has some rights given him which did not exist before that act. And in pursuance of that act, one of the recent rules of pleading of H. T., 4 W. 4, r. 20, has prescribed a form for the commencement of a declaration in such case (x). (o) 1 Sellon, 275; Cantwell v. Earl of Stirling, 8 Bing. 177; 1 Moo. & Sc. 365; 1 Dowl 265, S. C. (p) Rer v. Williams, Comb. 19. (9) Tidd, 641. (r) Co. Lit. 303. (e) See Com. Dig., Abatement: 2 Saund. Rep. 5th ed. 40, 41. (t) Doberteen v. Chancellor, 1 L. Raym. (u) Pepper v. Whalley, 5 Nev. & M. 437. Demurrer, what,and how Demurrer, what, and how framed, &c.] A DEMURRER is a framed, &c. pleading, which admits the facts as stated in the pleading of the opponent, and refers the law arising thereon to the judgment of the court (a). It is either to the whole, or a part of the declaration, or to the whole of the plea, replication, &c., or to the whole or part of a divisible plea or replication, &c. When general and when special. Form of. A demurrer is either general or special; the former being for some defect in substance, the latter for some defect in form (b). If the defendant is under terms of pleading issuably, he cannot demur specially to the declaration, but he may, notwithstanding, demur specially to the replication (ante, Vol. I. p. 163). Get the demurrer prepared by counsel or special pleader. The form of it is directed by the rule of H., 4 W. 4, r. 14, to be thus: "The said defendant by his attorney, [or in person, &c., or the said plaintiff], says that the declaration Lor plea, &c.] is not sufficient in law," shewing the special cause of demurrer, if any. Get the draft of the demurrer signed by The marginal counsel (c). Engross it and the marginal note on plain paper; Note, stating and deliver the engrossment to the attorney or agent of the opposite party (d). By the recent rule of H. T., 4 W. 4, r. 2, "in the margin of every demurrer, before it is signed by counsel, some matter of law intended to be argued shall be stated: and if any Ground of (a) Co. Lit. 71. b. (c) R. E., 18 C. 2, Q. B.: R. E., 33 Geo. 3, C. P.: Neal v. Richardson, 2 Dowl. 89: Tidd, New Pract. 439. (d) By R. H., 4 W. 4, r. 1, "no de murrer shall in any case be filed with any officer of the court, but the same shall always be delivered between the parties." See the forms of demurrers and joinders thereto, Chit. Forms, 301. 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 must be substantially complied with; therefore, where the marginal note of a demurrer to a plea of justification of a libel merely stated as cause," that it is no justification of the libel," it was holden to be insufficient (e). But if the demurrer be special, the rule is satisfied by a reference in the margin to the causes stated in the body of the demurrer, without otherwise expressly stating those causes (f). Only one ground of demurrer need be specified (e), and, if several grounds be stated, it need not also be stated on which of them the party intends to rely (h). The want of a marginal note is no ground for objecting to the argument of the demurrer when called on; the only effect of the rule is, that a demurrer without such a note may be set aside as irregular(i). Setting it aside as frivolous, &c.] The court or a judge will not entertain an application to set aside the demurrer, unless it omit the marginal note, or unless it be palpably frivolous: if it raise a reasonable doubt, the matter will be referred to the regular judgment of the court on argument. In support of an application to the court, there must be an affidavit, stating the substance of the pleadings, or annexing a copy of them to it; or the rule must be drawn up on reading the pleadings, &c.(k). Where a rule for setting aside a demurrer as frivolous was drawn up on reading the affidavit only, which affidavit was insufficient, the court discharged the rule (!). The rule is a rule nisi only in the first instance (m). As the above rule of H. T., 4 W. 4, says, that the demurrer may be set aside as irregular, the application to set it aside should be made within the time limited by the rule of H. T., 2 W. 4, r. 33, noticed Book IV. Part I. Chap. 17; and it is too late to apply after joining in demurrer (n). rers have ben held frivolous The following demurrers have been held not to be frivolous: What Demurriz.-That it was alleged in declaration that defendant was indebted to plaintiff instead of plaintiffs (9). To debt on or not. promissory note, that it did not appear that the words" value received" were in the note (p). To a count on a bill, because italleged that the period of payment" is now elapsed," instead of" had elapsed before the commencement of this suit" (q); but this last ground of demurrer would probably now be considered frivolous (r). So, where to an action on a note the (e) Ross v. Robeson, 1 Gale, 102; 3 Dowl. 779, S. C. (f) Lindus v. Pound, 2 M. & W. 240; 5 Dowl. 459, S. C.: Berridge v. Priestley, 5 Dowl. 306. (h) Whitmore v. Nicholls, 5 Dowl. 521. () Howorth v. Hubbersty, 3 Dowl. 455; 1 C., M. & R. 900 a, S. C. (m) Spencer v. Newton, 14 Leg. Obs. 82: Kinnear v. Keane, 3 Dowl. 154. (n) Norton v. Mackintosh, 7 Dowl. 529. (0) Tyndall v. Ullithorne, 3 Dowl. 2: but see Lyng v. Sutton, 4 Moo. & Sc. 417. (p) Cresswell v. Crisp, 2 Dowl. 635: see Lyons v. Cohen, 3 Dowl. 243; but this demurrer seems not sustainable: Kinahan v. Palmer, 2 Jones Rep. Exch. Ir. 131; and the MS note of Crisp v. Griffiths, there cited by Joy, C. B. (q) Aslett v. Abbott, 1 T. & G. 448; 1 M. & W. 209: 4 Dowl. 759, S. C. (r) Owen v. Water, 2 M. & W. 91; 5 BOOK II. Joinder in tiff Demurs. defendant pleaded, that he accepted a bill drawn by plaintiff, and that plaintiff received that bill as satisfaction of the note; and plaintiff replied, denying the drawing, acceptance, and receipt in satisfaction, and defendant demurred on the ground of multifariousness, the court refused to treat the demurrer as frivolous, though the affidavit also stated that the plea was false (s). The following demurrers, on the other hand, have been holden to be frivolous: viz. That plea was dated 1832 instead of 1833(1):—a general demurrer to replication de injuriâ (to a plea of gaming in an action on bill)(u):—to second count of declaration by surviving partner, because it did not state the decease of the other partner, which had been already averred in the first count (v):-to a declaration on bill of exchange and account stated, with one promise "to pay the last-mentioned several monies on request," on the ground that there was no promise to the count on the bill (x)—a single demurrer to counts for money lent, money had and received, and money due on an account stated, on the ground that they did not specify any time (y). Joinder in Demurrer.] By the rule of all the courts of H.T., 4 W. 4, r. 3, “no rule for joinder in demurrer shall be required, Where Plain- but the party demurring may demand a joinder in demurrer, and the opposite party shall be bound within four days after such demand to deliver the same, otherwise judgment" (z). Previously to this rule, by rule of H. T., 2 W. 4, r. 108, if the plaintiff demurred, he might at once have added the joinder in demurrer; but since the rule of H. T., 4 W. 4, this can no longer be done (a). The defendant being under terms to "rejoin gratis," is not thereby bound to join in demurrer gratis (b). Where a defendant, after the time for joining in demurrer had expired, but before judgment signed, obtained a rule nisi to set aside the proceedings, with a stay of proceedings in the meantime; upon the rule being afterwards discharged, it was holden that the defendant had the whole of the day on which the rule was disposed of to join in demurrer (c). Where De murs. If the defendant demur, the plaintiff rarely delivers a fendant de- joinder, but merely adds it in making up the demurrer book. If the plaintiff will not join in demurrer, the defendant's attorney may demand a joinder in demurrer of the plaintiff's attorney or agent (d), who must, in four days, exclusive of service, (unless a further time be granted by a judge), deliver a joinder in demurrer, or the defendant may sign judgment of nonpros. Dowl. 324, S. C. (8) Edwards v. Greenwood, 5 Bing. N. C. (t) Neal v. Richardson, 2 Dowl. 89. (x) Chevers v. Parkington, 6 Dowl. 75. (z) Before this rule, in the Q. B., when clerk of the rules for the opposite party to join in demurrer, a copy of which rule was duly served. In the C. P., a rule to join in demurrer was given by the secondaries in like manner as the rule to plead, and a joirder in demurrer must have been demanded before judgment. (a) Bi ling v. Kightley, 12th June, 1839, C. P.: see Baylis v. Hayward, 3 Dowl. 533. (b) Jones v. Key, 2 Dowl. 265; 2 C. & M. 340, S. C. (c) Vernon v. Hodgens, 4 Dowl. 654. (d) See the form of the demand, Chit. Forms, 202. |