BOOK II. PART II. judgment be entered for the plaintiff or defendant," as the case may be. Serve a copy thereof on the opposite attorney or agent. How Signed. Judgment upon demurrer is interlocutory or final, in the same manner, and in the same cases, as judgment by default (u). If interlocutory, proceed to execute your writ of inquiry, or to have principal and interest computed by the master, according to the nature of the case, and sign final judgment, and tax your costs, as directed post, 702. We have seen, ante, 661, that the plaintiff may give notice of inquiry on the back of the demurrer when he demurs, or on the back of the joinder when the defendant demurs. If the judgment be final, sign it with the master, as directed post, 702, for which the rule above mentioned will be his authority, As to the necessity of suggesting breaches upon the roll, after judgment upon demurrer in debt on bond, and the mode of making the suggestion, and of proceeding to an inquiry thereon, see post, Ch. 4, Sect. 3. Entry of on there are Issues in Law only. In entering the judgment on the roll, if there be but a single Roll, where issue, then immediately after the joinder in demurrer, which concludes the issue, enter the appearance of the parties, and the judgment (x). If the judgment for plaintiff upon the demurrer be merely interlocutory, and a writ of inquiry executed, then follow on the roll the award of the writ of inquiry, an entry of the return of it, and the finding of the inquest; and, lastly, an entry of the final judgment, as mentioned infra. As to the judgment for plaintiff upon demurrer to a plea in abatement, see ante, 656 (y). If the judgment on a single issue be for the defendant, then immediately after the entry of the joinder in demurrer, as above, enter the appearance of the parties, and a judgment of nil capiat per breve (z). This is, of course, a final judgment, and gives the defendant his Entry of where there are Issues in Fact also. costs. When there are several issues in law and in fact, if the issues in fact were tried before the determination of the demurrer, then immediately after the award of the venire, (as mentioned ante, 661), enter the jurata ponitur in respectu and postea, as directed Vol. I. 338; then enter the appearance of the parties, and judgment upon the demurrer ; and lastly, the final judgment (a). But when, of several issues in law and in fact, the issues in law have been tried first, and found for the plaintiff, then immediately after the joinder in demurrer enter the judgment on the demurrer; then an award of a venire, as well to try the issues in fact, as to inquire of the damages upon the issue in law; then the jurata ponitur in respectu, and postea, as ante, 328; and lastly, the final judgment (b). But if the plaintiff be content to take damages upon the judgment on demurrer only, he may execute a writ of inquiry as to that judgment, or, in the case of a bill of exchange or the like, may have it (u) See post, 701. (a) See forms of the entry, Chit. Forms, ) See the forms, Chit. Forms, 304. plea in abatement, Id. 304; the like, on demurrer to a replication to a plea in abatement, Id. 305. (a) The entry of any continuances, either by curia advisari vult, or by vicecomes non misit brere, is no longer requisite. (R. H., 4 W. 4, r. 2). (b) See the form of this entry, 2 Saund. 298-301: Chit. Forms, 305. referred to the master, and he may enter a nolle prosequi as to the issues in fact (c). BOOK 11. PART 11. ceeds on one If a defendant plead several pleas to the same or several Where Decounts of a declaration, and the plaintiff demur to some of the fendant suepleas, and take issue upon others; if the defendant succeed of several upon any of the pleas demurred to, and that plea be an answer Pleas to Action brought. to the whole action, the plaintiff shall not have judgment upon the issues in fact, should they be found for him (d); but the only judgment that shall be entered is nil capiat per breve. Costs.] By stat. 8 & 9 W. 3, c. 11, s. 2, if either plaintiff Costs. or defendant have judgment upon demurrer, he shall be en- Generally. titled to costs, and may have execution for the same by ca. sa., fieri facias, or elegit. This statute, however, did not extend to demurrers in abatement, nor to actions where the plaintiff would not be entitled to damages if he had a verdict(e). But now, by the Law Amendment Act (f), "where judgment shall be given either for or against a plaintiff or demandant, or for or against a defendant or tenant, upon any demurrer joined in any action whatever, the party in whose favour such judgment shall be given shall also have judgment to recover his costs in that behalf." Fact and Law. In a recent case, where, to a declaration in two counts, Where there defendant pleaded two pleas to the first count and one to the are Issues of second, issues were joined on one plea to the first count, and on the plea to the second count; the other plea to the first count was demurred to: the plaintiff took the issues in fact to trial, and a verdict was found for the plaintiff on the issue on the first count, and damages assessed'; and for the defendant on the issue on the second count: afterwards, on the demurrer to the other plea to the first count, the defendant had judgment: Held, that the plaintiff was entitled to all the costs of the trial on the issue on which he had succeeded, including (in addition to the pleadings) briefs, witnesses, &c.; and that no objection arose from his having tried the issues in fact before that in law, especially as a judge at chambers had refused an application by the defendant to order the trial of the issues in fact to be postponed till judgment was given on the demurrer (g). Where there were several issues in fact, and a demurrer to a rejoinder, the defendant had leave to amend upon payment of costs; and upon taxation of the costs, the briefs and demurrer-books were charged for, as containing all the issues in fact, as well as at law; it was held, that the master was right in disallowing the charges so far as related to the issues in fact (h). tendance A cause was entered in the paper for argument;—a defend- Costs of Atant having demurred to a replication, the plaintiff got the case (e) 1 Saund, 109, n. (1): and see Flem ing v. Langton, 1 Str. 533: Anon, 1 Salk. 210: ante, 662: post, 723. See the form, Chit. Forms, 308, &c. See the form of the jury process, where there are issues in fact and in law, Chit. Forms, 69. (4) Saund. 80, n. (1). Where the defendant obtains judgment on one of several pleas going to the whole cause of action, the court will allow him to strike (e) Hullock. 145. (f) 3 & 4 W. 4, c. 42, s. 34: and see 3 (g) Bird v. Higginson, 5 A. & E. 83. BOOK II. PART II. where no Joinder. Execution. put into the paper as for argument, and the defendant came prepared to argue the point; but it appeared that the plaintiff had not joined in demurrer, and, of course, no paper books were delivered to the judges; it was held, that the defendant was not entitled to his costs of appearing for argument (¿). Execution.] The execution is the same as in other cases. (See ante, 395 to 456). (i) Howorth v. Hubbersty, 3 Dowl. 457. BOOK II. PART III. PROCEEDINGS UPON NUL TIEL RECORD. 1. When a Record of the same 2. When a Record of another Court is pleaded. Plea of Judgment recovered in another Court, 672. 1. When a Record of the same Court is pleaded. BOOK 11. PART III. Issue, &c.] ON a record of the same court being pleaded, Issue, Form when the plaintiff replies nul tiel record, or when he replies to of, &c. a plea of nul tiel record, he concludes his replication that the record may be inspected; and a day is accordingly given to the parties for that purpose (a). As this completes the pleadings, you may make up the issue and deliver it as in ordinary cases (b). It is the same in form as in an issue triable by the country (c), excepting the conclusion (d). Number of The plaintiff, however, when the defendant pleads a record Demand of of the same court, instead of replying nul tiel record, may de- Term and mand of the defendant a note in writing of the term and number- the Roll. roll whereon such judgment or matter of record is entered, or matter of record is entered or filed, or, in default thereof, the plea is not to be received, and the plaintiff may sign judgment(e). But this cannot be done when the defendant pleads a record of another court; and as to which, see post, 672. Where the plaintiff replies nul tiel record, he should, in the Rule to proQueen's Bench, obtain from one of the masters a rule to produce duce the Re (a) See the form, Chit. Forms, 311. (b) R. H., 4 W. 4. r. 5, ante, Vol. I. 199. It has been held in the Common Pleas, that, as the issue is complete by the prayer of the inspection of the record, though the defendant demur to the repli cation, the plaintiff may, nevertheless, sign judgment on the production of the record on the given day. (See Tipping v. Johnson, 2 B. & P. 302: Jackson v. Wickes, 2 Marsh. 354; 7 Taunt. 30, S. C.) (e) See Vol. I. 199. (d) See the form, Chit. Forms, 312 cord. BOOK II. the record (f); enter it with him, and serve a copy of it on the PART III. defendant's attorney or agent. It is a four-day rule. In the Common Pleas and Exchequer, he obtains a rule for judgment, and serves a copy on the defendant's attorney or agent. Notice by of. Trial. Judgment, &c. For Plaintiff. When the plaintiff replies to a plea of nul tiel record, he must, in the Queen's Bench, give a notice in writing to the defendant's attorney or agent that he will produce the record on the day therein mentioned, (g). In the Common Pleas and Exchequer, he obtains a rule for judgment, and serves a copy on the defendant's attorney or agent. Trial.] Let the party who has to produce the record bespeak it at the Treasury, and desire that it may be brought into court, upon the day appointed by the notice or rule above mentioned. Let the party entitled to judgment instruct counsel to move for it; and the opposite party, if he contest it, will instruct counsel to oppose the motion. On the motion being made, the master will declare whether the record is in court or not. If the record be not produced, or if produced and found not to maintain the plea, judgment of failure of record is given for the opposite party (h), otherwise judgment that the party hath perfected the record will be given for the party who pleaded it. If a record be produced which ought not to be so, the course will be to apply to the court from which the record is, to quash the roll (i). 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 (k). 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 the record; 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 nonpros, 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 nonpros, and plead the pendency of the former action in the Common Pleas (m). Judgment, &c.] Judgment for the plaintiff is interlocutory or final in the same manner, and in the same cases, as judgment upon demurrer or default (n). If interlocutory, make an incipitur on plain paper, and take it to the master, as directed post, 735, and he will sign judgment. Then proceed to sue out and execute your writ of inquiry, or have principal and interest (f) See the form, Chit. Forms, 312: Begbie v. Grenville, 8 Dowl, 502. A notice by plaintiff on defendant to produce the record would be irregular. (Id.) (g) Tidd, 9th ed. 743. See the form, Chit. Forms, 312. (h) Innes v. Hay. Fort. 353: Rowell v. Dyon, Lutw. 945: see Munkenbeck v. Busknell, 4 Dowl. 139. (i) Kerbey v. Siggers, 2 Dowl. 659; Id. 813. (k) Kerbey v. Siggers, 2 Dowl. 813; 4 M. & Scott, 481, S. C. (1) Kerbey v. Siggers, 2 Dowl. 659. |