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of an action of trespass, in which the defendant justified under a commission of bankrupt issued against the plaintiff, no notice having been given to dispute the commission, which was put in, with the proceedings under it, and a perfect petitioning creditor's debt did not appear upon the proceedings; the court of Common Pleas nevertheless held, that the validity of the commission could not be disputed:(6) But in order to make the depositions evidence of the petitioning creditor's debt, where no notice has been given, it ought to appear therefrom that the debt was due at the time of the act of bankruptcy.(c) And a deposition, stating that the bankrupt absented himself, and admitted that he did so for the purpose of avoiding his creditors, but not specifying the time of such admission, is not prima facie evidence to prove the act of bankruptcy.(d) In an action by a bankrupt against his assignees, to try the validity of the commission, where notice is given only to dispute the act of bankruptcy, and the defendants read the two depositions on the file of the proceedings, which prove the trading and petitioning creditor's debt, the residue of the proceedings are not to be considered in evidence, and the plaintiff's counsel has no right to inspect them.(e) When the assignees of a bankrupt are nonsuited, they are not entitled, under the above acts, to the costs of proving, after notice, the petitioning creditor's debt, trading, and act of bankruptcy.(f)

The general issue is delivered, in the King's Bench, to the plaintiff's attorney, or entered in the general issue book, kept by the clerk of the judgments;(g) and need not be signed by counsel. There are also certain common pleas in that court, which need not be so signed; such as plene administravit, bankruptcy in the defendant, (h) a special non est factum, solvit ad diem,(i) comperuit ad diem to a bail bond,(k) or nul tiel record to an action on a judgment or recognizance; in covenant, when the plea concludes to the country; and in trespass, son assault demesne, liberum tenementum, or not guilty to a new assignment. These pleas must be delivered to the plaintiff's attorney; and not entered in the general issue book, or filed in the office of the clerk of the papers: and if they be so entered or filed, the plaintiff is not bound to notice them, but may sign *judgment as for want of a plea.(a) So, a general [*672] demurrer to part of a declaration, and the general issue to the rest,(bb) or a general demurrer to a plea of nil debet in an action of debt on bond, (cc) must be delivered to the opposite attorney, and not filed with the clerk of the papers. All pleas and demurrers upon writs of error, scire facias, and audita querela, ought also to be delivered, in the King's Bench:(dd) and, by a late rule of that court, (ee) pleas cannot be delivered after ten o'clock at night. But, except in the foregoing cases, it is a rule,

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that all special pleas must be signed by counsel;(f) and filed in the office of the clerk of the papers, (g) who makes copies of them, if required, for the plaintiff's attorney: And all double pleas must be filed, and not merely delivered to the plaintiff's attorney; though two pleas be pleaded, which separately need only have been delivered.(hh) But where an avowry was not filed, but delivered to the plaintiff's attorney, and on demand of plea in bar, and to know if defendant's attorney might sign judgment of non pros, or whether plaintiff would save that expense, by paying the rent and costs then incurred, plaintiff's attorney told him, he might sign judgment if he pleased, which he accordingly did; the court, under these circumstances, discharged the rule for setting aside the judgment with costs.(ii)

In the Common Pleas, all pleas, whether general or special, are either delivered to the plaintiff's attorney, or filed with the prothonotaries: The general issue, when delivered to the plaintiff's attorney, must be drawn up at length, in the same manner as when it is filed in the office :(kk) And, except where the defendant appears in person, all pleas must be pleaded in the name of an attorney of this court.(1) The following pleas did not formerly require a serjeant's hand, viz. comperuit ad diem, son assault demesne, plene administravit, riens per discent, ne unques executor or administrator, nul tiel record, per minas, per duress, infra ætatem, and solvit ad diem :(m) But it is now usual to sign all these pleas, except comperuit ad diem, nul tiel record,(n) and solvit ad diem,(o) which are considered as general issues; and it has been determined, that a plea of non assumpsit infra sex annos,(p) or plea of bankruptcy in the defend

ant, (q) must in this court be signed by a serjeant; although the [*673] latter plea need not, we have seen, (a) be signed by counsel in the King's Bench. So, all double pleas are required to be signed by a serjeant:(b) and if a plea, which ought to be signed, be delivered or filed without a serjeant's hand, the plaintiff may sign judgment, as if no plea had been pleaded:(c) And although a defendant conduct his cause in person, yet if he file a special plea, it is a nullity, unless it be signed by a serjeant or counsel.(d)

In the King's Bench, the defendant cannot commonly waive the general issue, or a general demurrer, and instead thereof give a special plea or demurrer:(e) but it is said, that if the general issue be not entered, the defendant may waive it, and plead specially, without leave of the court, in four days;(ff) or, as it should seem, before the adjournment day of the term,(gg) or within the first five days of the ensuing term;(h) and even after

(f) R. E. 18 Car. II. K. B. 2 Chit. Rep. 319. 1 Car. & P. 95, a. And for the origin and reason of the signature of pleas by counsel, see 2 Wils. 74. 2 Barn. & Ald. 392. 1 Chit. Rep. 211, S. C.

(g) R. T. 2 Jac. I. reg. 1. R. T. 16 Car. II. R. M. 2 W. & M., K. B.

(hh) 2 East, 225.

(i) Kingsbury v. Vanbergh, E. 22 Geo. III. K. B.

(kk) Cas. Pr. C. P. 126. Pr. Reg. 306, S. C. Barnes, 239, S. P.

(1) Barnes, 259. Pr. Reg. 307, S. C. Ante, 566; but see 2 Bos. & Pul. 111. Ante, 97, (5). (m) Cas. Pr. C. P. 41. Pr. Reg. 282, 3, S. C. Barnes, 365.

(n) 2 Blac. Rep. 816; but see 2 Wils. 74, contra.

(0) 5 Durnf. & East, 663; and see Imp. C. P. 6 Ed. 239.

(P) Cas. Pr. C. P. 41.

Ante, 671.

Pr. Reg. 282. (e) R. T. 5 & 6 Geo. II. (f) 1 Ld. Raym. 674. (h) Prax. utr. Banci, 37.

(q) 3 Bos. & Pul. 171

(b) Imp. C. P. 6 Ed. 241.

(d) Id. 3 Bos. & Pul. 171. 3 Taunt. 386. Ante, 567.
Wils. 29, in marg. Rich. Pr. K. B. 255.
274, S. C.

(b), K. B.
3 Salk. 211,
R. T. 5 &

6 Geo. II. (b), K. B.

(99) Say. Rep. 87.

wards, where it is not to the prejudice or delay of the plaintiff, the defendant, by leave of the court, may withdraw the general issue, in order to plead specially,(i) or to plead it again, with a notice of set-off, (k) or of the defendant's intention to dispute the petitioning creditor's debt, &c.,() or upon bringing money into court.(m) But, on a motion to strike out the plea of the general issue, and file a plea that the plaintiff was convicted of felony, the defendant must produce a certified copy of the record of conviction, and prove the identity of the party convicted.(n) In the Common Pleas, the defendant has been allowed, under circumstances, to withdraw a general demurrer, and plead the general issue ;(0) or, where no delay or inconvenience would arise, to withdraw the general issue and plead specially,(pp) or plead it again with a notice of set-off, or upon bringing money into court,(99) or to add a special plea to those already pleaded.(r) But, in general, the court will not permit a demurrer to be withdrawn, after a trial has been lost ;(s) nor unless a full and reasonable cause be shown for so doing.(t) And they would not formerly have given the defendant leave to withdraw the general issue, in order to plead it again, with a plea of the statute of limitations.(u)

In the King's Bench, if a special plea or special demurrer be put in, and the book is made up, and delivered to the defendant's attorney, he may, by the ancient practice of the court, if not under terms of plead

ing *issuably, strike out the special plea or demurrer, and return [ *674 ] it with the general issue, or a general demurrer.(aa) To prevent this, if the defendant plead a dilatory or frivolous plea, the court in termtime, or a judge in vacation,(bb) will order him to abide by it, or plead some other plea, peremptorily, on the morrow ;(cc) or, if it be towards the end of the term, (that the plaintiff may have sufficient time to give notice of trial,) the court will order the defendant, if he will not abide by his plea, to plead another instantly, provided always that the time allowed by the common rule to plead be expired :(d) And the practice is the same, with regard to frivolous demurrers.(d) The motion for these purposes is a motion of course, requiring only counsel's signature. But where the defendant is under terms of pleading issuably, he is bound to abide by his plea; and cannot afterwards strike out a special plea or demurrer, when the book is made up, and return it with the general issue.(e) After a rule for the defendant to abide by his plea, the plaintiff cannot sign judgment as for want of a plea, without an application to the court; although such a rule will not prevent the court from allowing the plaintiff to sign judgment.(f)

When the defendant, in the King's Bench, is ruled to abide by his plea, he either abides by it, (g) or pleads another: In the former case, he may

(i) 2 Str. 906, 1181. 1 Wils. 177, 254. (1) Ante, 668.

(n) 2 Chit. Rep. 400.

(pp) Barnes, 346. 2 Wils. 204, 254. (r) Id. 362.

(t) 6 Moore, 495.

1 Blac. Rep. 357.

(k) 2 Str. 1267. (m) 2 Str. 1271. 1 Wils. 254, S. C. cited. (0) Barnes, 337. Cas. Pr. C. P. 135, S. C. (97) Barnes, 289, 362.

(8) Cas. Pr. C. P. 141. Barnes, 155, S. C.

1 Blac. Rep. 35. 2 Durnf. & East, 390; but see Ante, 471.

(b), K. B. 1 Wils. 29.

(u) 2 Wils. 253; and see Barnes, 338. 3 Durnf. & East, 124. 1 Bos. & Pul. 228. (aa) 2 Salk. 515. R. T. 5 & 6 Geo. II. (bb) 2 Bur. 781. 2 Ken. 483, S. C. (cc) Append. Chap. XXVII. & 14. (d) 2 Salk. 515. R. T. 5 & 6 Geo. II. (b). (e) White v. Givens, T. 57 Geo. III. K. B. (f) 1 Chit. Rep. 565, in notis; and see 5 Maule & Sel. 518. (g) 2 Str. 1234.

afterwards demur to the plaintiff's replication; in the latter, he can only plead the general issue, (h) to which, however, he may add a notice of setoff:() And whether he be ruled to abide by his plea or not, it is a general rule, that the defendant cannot waive a special plea or special demurrer, but in order to plead the general issue ;(k) though leave has been given under circumstances, for the defendant to add a plea after issue joined, and even after two terms have elapsed since he first pleaded.(?) In the Common Pleas, the defendant must always abide by his plea, after the plaintiff has replied to it; and therefore where the plaintiff moved that the defendant might abide by his plea, the court rejected the motion as unnecessary.(m) But after a special plea pleaded, though the plaintiff has prepared his replication, yet the defendant in that court may the same term, before the delivery or filing of the replication, waive his special plea, and plead the general issue, without paying costs:(n) And where the defendant pleads fairly, and there has been no delay,(o) the court on motion will at any time give him leave to withdraw a special plea, and plead the general issue, upon payment

of costs, in order to let in a trial upon the merits. But where a [*675] defendant has already pleaded a tender,(p) *or the plaintiff has been delayed, (a) the court will not grant this indulgence; and in one instance it was denied, where the defendant had pleaded a sham plea :(6) but in a subsequent case, where the defendant's attorney not having received instructions as to the nature of the defence to an action, pleaded a sham plea, and afterwards swore to merits, the court allowed such plea to be withdrawn on terms.(c)[1]

(h) 1 Durnf. & East, 693.

(k) 2 Str. 960. 1 Wils. 29.

(m) Cooper v. Mansfield, T. 31 Geo. III. C. P. Imp. C. P. 7 Ed. 258. Ante, 484, (u).

(n) Cas. Pr. C. P. 155.

(p) Barnes, 330.

(b) Id. 369.

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(0) 2 Wils. 391.
(a) 2 Wils. 392.

(c) 7 Taunt. 278.

1 Moore, 28, S. C.

[1] By the late act for the further amendment of the law, 3 & 4 W. IV. c. 42, § 1, and see 2 Rep. C. L. Com. 24, &c., 89, &c.; reciting that it would greatly contribute to the diminishing of expense in suits in the superior courts of common law at Westminster, if the pleadings therein were in some respects altered, and the questions to be tried by the jury left less at large than they then were, according to the course and practice of pleading in several forms of action; but this could not be conveniently done, otherwise than by rules and orders of the judges of the said courts, from time to time to be made; and doubts might arise, as to the power of the said judges to make such alterations, without the authority of parliament; it was enacted, that "the judges of the said superior courts, or any eight or more of them, of whom the chief of each of the said courts should be three, should and might, by any rule or order to be from time to time by them made, in term or vacation, at any time within five years from the time when that act should take effect, make such alterations in the mode of pleading in the said courts, and in the mode of entering and transcribing pleadings, judgments, and other proceedings, in actions at law, and such regulations, as to the payment of costs and otherwise, for carrying into effect the said alterations, as to them might seem expedient; and all such rules, orders, or regulations, should be laid before both houses of parliament, if parliament were then sitting, immediately upon the making of the same; or if parliament were not sitting, then within five days, after the next meeting thereof; and no such rule, order, or regulation, should have effect, until six weeks after the same should have been so laid before both houses of parliament; and any rule or order so made should, from and after such time aforesaid, be binding and obligatory on the said courts and all other courts of common law, and on all courts of error, into which the judgments of the said courts, or any of them, should be carried by any writ of error, and be of the like force and effect, as if the provisions contained therein, had been expressly enacted by parliament."

In pursuance of the power given by the law amendment act, general rules, we have seen, were made by all the judges of the superior courts of common law at Westminster, in Hilary term, 1834; which, after being laid the requisite time before both houses of parliament, and receiving their sanction, came into operation on the first day of Easter term following. These

*CHAPTER XXVIII.

Of REPLICATIONS and SUBSEQUENT PLEADINGS.

WHEN the defendant has put in his plea, he may rule the plaintiff to reply, (a) by obtaining a rule from the master, in the King's Bench, on the

(a) Append. Chap. XXVIII. & 1, 2, 3.

rules, which are considered as statutory, and part of the law of the land, Roffey v. Smith, 6 Car. & P. 662, are of two kinds: first, general rules and regulations, relating to all pleadings, &c.; and secondly, rules relating to the mode of pleading in the particular actions of assumpsit, covenant, debt, detinue, case, and trespass. The former of these rules prescribe the form of declaring in a second action, after a plea in abatement of the non-joinder of another person, R. Pl. Gen. H. 4 W. IV. reg. 20. 5 Barn. & Ad. Append. vii. 10 Bing. 469. 2 Cromp. & M. 19. Ante, 210, 11; of a plea of payment of money into court. Id. reg. 17. Ante, Chap. XXV.; and the replication thereto. Id. reg. 19. Ante, Chap. XXV. Post, Chap. XXVIII.; of a plea puis darien continuance, or after the last pleading, or issuing of the jury process. Id. reg. 2. Post, Chap. XXXVII.; and of a demurrer, and joinder in demurrer. Id. reg. 14. Post, Chap. XXIX. Material alterations are also made thereby, in the mode of entitling and entering declarations, and other pleadings. Id. reg. 1. Ante, 207, 8. Post, Chap. XXX.; the beginning and conclusion of pleas. Id. reg. 9, 11, 13; the entry of proceedings on the record for trial, or on the judgment roll. Id. reg. 15. Post, Chap. XXXIV.; and of all judgments, whether interlocutory or final. Id. reg. 3. Ante, 295. Post, Chap. XXXIX.; and the fees chargeable in respect of issues. Id. reg. 16. Post, Chap. XXX. The statement of the venue in the body of the declaration, or any subsequent pleading. Id. reg. 8. Ante, 209; the formal defence in a plea. Id. reg. 10; the rule or order to pay money into court, except under the 3 & 4 W. IV. c. 42, 18. Id. reg. 18. Ante, Chap. XXV.; the use of a protestation in any pleading. Id. reg. 12. Post, Chap. XXVIII.; the entry of continuances, with certain exceptions. Id. reg. 2. Ante, 227, 8. Post, Chap. XXX.; and of warrants of attorney to sue or defend. Id. reg. 4. Post, Chap. XXX.; are abolished by these rules and the use of several counts. Id. reg. 5, 6, 7. Ante, 216, &c.; pleas, avowries, or cognizances. Id. ib.; are prohibited thereby, unless a distinct subject-matter of complaint, or ground of answer or defence, is intended to be established at the trial, in respect of each count, or plea, &c.

The principal object of the latter rules, or those which relate to pleadings in particular actions, seems to have been, to limit the operation of the general issues formerly used, and confine the pleas in denial substituted in lieu thereof, in actions upon contracts, to a direct denial of the contract. Passenger v. Brookes, 1 Bing. N. R. 587. 1 Scott, 560. 1 Hodges, 123. 7 Car. & P. 110, S. C.; and in actions for wrongs, to a denial only of the breach of duty, or wrongful act, alleged to have been committed by the defendant. Pearcy v. Walter, 6 Car. & P. 232; making him plead specially in denial or any other material fact stated in the declaration, and all matters in confession and avoidance, or discharge of the cause of action. 3 Rep. C. L. Com. 54, 5; 59, 60. These latter rules, however, do not contain any particular directions as to the mode of pleading in actions of account, annuity, debt, or scire facias on matters of record, as judgments, or recognizances, or debt on penal statutes; nor in the action of replevin, or trespass to the person; though these actions are subject to the general rules and regulations applicable to all pleadings, &c. And there is a proviso in the act, 3 & 4 W. IV. c. 42, 1, that "no such rule or order shall have the effect of depriving any person of the power of pleading the general issue, and of giving the special matter in evidence, in any case wherein he then was, or thereafter should be entitled so to do, by virtue of any act of parliament then or thereafter to be in force."

In actions upon contracts, the plaintiff, by the above statutory rules, must prove, on the plea of non assumpsit, in all actions of assumpsit, except on bills of exchange and promissory notes, the express contract or promise alleged in the declaration, or the matters of fact from which the contract or promise alleged may be implied by law; as, in an action on a warranty, the fact of the warranty having been given upon the alleged consideration; in an action on a policy of insurance, the subscription to the alleged policy by the defendant; in actions against carriers and other bailees, for not delivering or not keeping goods safely, or not returning them on request. R. Pl. H. 4 W. IV. Assumpsit, reg. I, 1. 5 Barn. & Ad. Append. vii. 10 Bing. 469. 2 Cromp. & M. 20; and in actions against agents for not accounting, an express contract to the effect alleged in the declaration, and such bailment or employment as would raise a promise in the law to the effect alleged; in an action of indebitatus assumpsit for goods sold and delivered, the sale and delivery of the goods in point of fact; and

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