PLEA PUIS DARREIN CONTINUANCE.

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replication, "and this the plaintiff prays may be inquired of by the country, &c.," he may make up the issue, adding for the defendant, " and the said defendant does the like, &c." But, in such case, if the replication be bad, it is still competent to the defendant to strike out the similiter thus added for him, and demur.

It is necessary to make one more observation on the time for taking these steps in pleading. By the 11th section of the Uniformity of Process Act, no pleading can be delivered between the 10th of August and the 24th of October; but, as it may have been delivered so near the 10th of August that the time for taking the next step may on that day have not elapsed, R. Michaelmas, 1832, allows the remainder of the time to be computed from the 24th of October.

There is a sort of plea, which, though not very usual, is sometimes necessary, the mention of which has hitherto been omitted, because it belongs to no particular stage of the suit, but may be pleaded at any period, even at the very sittings or assizes. (1) It is called a plea puis darrein continuance; and is used when some new ground of defence arises, of which the defendant has had no opportunity of availing himself. As it is but fair that he should have such an opportunity, he is permitted to plead this new defence, and abandon any plea he may have previously delivered. But, by the rules of Hilary, 1834, which now regulate the practice respecting this plea, it must, unless the

(1) See a curious instance of pleading puis darrein continuance, Todd v. Emly, 1 Dowl. N. S. 598.

court or a judge otherwise order, be accompanied by an affidavit, stating that the new defence has arisen within eight days.

Assuming that the different steps are taken in their due time, an issue, either of law or fact, is ultimately produced, and the object of the pleadings thus accomplished. For the object of the whole system of pleading is to bring the parties to issue, to elicit the real points in controversy between them. If these are points of law, they are argued before the court, if of fact, tried by a jury. Frequently it turns out that there are several issues, some of law, and some of fact. Thus one count or one plea may be demurred to, and the others traversed. When this happens, the demurrer must be decided by the court, and the issues of fact by a jury. The mode in which these decisions are obtained is therefore the next matter to be considered. Before, however, stating the mode in which an issue is decided, it appears right to touch on one or two matters of very ordinary occurrence, and which usually take place during the pleadings, at all events previous to the decision of the issue. The most common of these is an application for particulars of the plaintiff's demand, which is made in order that the defendant may be acquainted with the precise nature of the claim against him and enabled to prepare his answer to it. There is another reason for obtaining particulars of demand, namely, that they tie up the plaintiff in his proof, and prevent him from taking advantage, as he otherwise might, of very general and comprehensive statements in the declaration.

It is, however, only when the declaration is so general as not to disclose the precise cause of action that particulars may be had as a matter of course; in other cases, there must be a special application for them which, unless supported by good reason, will not be complied with.

Whenever indeed in an action of assumpsit, or debt on simple contract, the declaration contains any of the counts in indebitatus assumpsit, or as they are usually called, "Common Counts," there is an express rule of Trinity Term, 1831, by which it is ordered, that with such declaration, if delivered, or with the notice of such declaration, if filed, the plaintiff should deliver full particulars of his demand under the indebitatus counts, when such particulars can be comprised within three folios, and, when they cannot be comprised within three folios, then he is to deliver such a statement of the nature and amount of his claim as can be comprised within three folios, and, if any declaration or notice be delivered without such particulars, and a judge shall afterwards order particulars, the plaintiff shall be allowed no costs in respect of any summons for the purpose of obtaining such order, or of any particulars he may afterwards deliver. It is further ordered by this rule, that the particulars of demand, and of set-off, if any, shall be annexed to the record when it is entered with the judge's marshal.

Particulars are obtained by summons before a judge at chambers, and, in order that the defendant may have time to examine and prepare his defence with reference to them, there is a rule of Hilary, 1832,

sec. 48, that "the defendant shall be allowed the same time for pleading after the delivery of particulars under a judge's order that he had at the return of the summons, nevertheless judgment shall not be signed till the afternoon of the day next after the delivery of particulars, unless otherwise ordered by the judge."

In the same way that particulars of the plaintiff's demand may be obtained, so may particulars of the defendant's set-off, when he has pleaded one.

And where the particulars either of demand or setoff are not sufficiently explicit, further and better ones may be applied for.

Another application which may be, and frequently is, made, both by plaintiffs and defendants, is for the oyer of a deed, or inspection of some written instrument. With respect to oyer, the rule is, that whenever either party in his pleadings states a deed which operates at common law, or letters of administration, he is bound to make profert as it is called, that is, he is obliged to say that he brings the instrument into court, being a translation of the words profert in curiam, used by the ancient pleaders. The other party may then, if he please, crave oyer of its contents, which the party making profert is obliged to give him, and he is entitled to as many days for taking his next step in pleading after he has had the oyer, as he was before he demanded it.

The practice of making profert and demanding oyer is of great antiquity, and formed part of the old system of viva voce pleading. Under that system, the party who relied on a deed used to produce it in the open

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court; the opposite party might pray to hear it read, which he did by using the Norman word oyer hear," a corruption of which into O yes is still used by a crier making proclamation. On oyer being craved, the deed was read aloud by the officer of the court, a practice for which that of the attornies demanding it from one another was afterwards substituted.

The defendant, when he has craved and obtained oyer of a deed, ought properly to set it out at full length at the head of his plea, in order that it may appear upon record, and be referred to if necessary. And by a rule of Hilary, 1832, sec. 44, the plaintiff, if he neglect to do so, may set it out for him in the issue or demurrer book, and the costs of such insertion shall be in the discretion of the court.

As to Inspection. It sometimes happens that one of the parties is in fairness entitled to inspect some document, the contents of which will be of service to him in conducting his case, but which not being pleaded, or not operating at common law, there is no profert of it, and consequently he cannot demand oyer. Under such circumstances, his course is to apply, by way of summons or motion, that he may be permitted to inspect the document in question, which he will be allowed to do if it turn out that he is in fairness and equity entitled to do so. (1)

(1) See Devenoge v. Bouverie, 8 Bing. 1. Jones v. Palmer, 4 Dowl. 446. Reid v. Coleman, 4 Tyrwh. 274.

4 Dowl. 374.

2 Tyrwh. 726.

Evans v. Delegal,

Travis v. Collins,