embarrass struck out or amended. 52. If any pleading be so framed as to prejudice, Pleadings embarrass or delay the fair trial of the action, the framed to opposite party may apply to the court or a judge to may be strike out or amend such pleading, and the court or any judge shall make such order respecting the same, and also respecting the costs of the application, as such court or judge shall see fit. It has always been, theoretically, one of the rules, if not one of the results, of special pleading, that no pleading should be framed to prejudice, embarrass or delay the fair trial of the action; and there are numerous cases in the books in which the courts have allowed the plaintiff to sign judgment as for want of a plea, -cases in which, practically, the fair trial was attempted to be embarrassed or delayed. Persons who have no defence sometimes had recourse to what is called sham pleading; and for this purpose the plea of judgment recovered was resorted to. The rule of Hil. 2 Will. 4 (renewed by R. G., H. T. 1853, r. 10), to the effect that, in the margin of such a plea, the date of the judgment and its number on the roll should thenceforth be stated, put an end to this abuse. Without presuming to lay down a rule as to what may be considered as tending to "prejudice, embarrass or delay" the trial of the action, it may be useful here to refer to a few cases of unfair pleading. It may be observed, that the words used, "prejudice, embarrass or delay" are used disjunctively. All pleadings ought to be true. A pleading false on the face Sham pleadof it may be treated as a nullity. Thus, where the plaintiff ing, and pleading for declared on two bills of exchange, due 5th and 6th December, delay. and the defendant pleaded a judgment recovered in Michaelmas Term preceding these dates, the plaintiff was considered right in signing judgment (Vere v. Carden, 5 Bing. 413; see also Blewitt v. Marsden, 10 East, 237; and Balmanno v. Thompson, 8 Dowl. 76). But unless the inference of falsity be irresistible, the plaintiff should not take upon himself to sign judgment, treating the plea as a nullity; but should apply to set it aside (Bell v. Alexander, 6 M. & S. 133). The court will not try the truth of a plea upon affidavit. Where the defendant pleaded in satisfaction of the plaintiff's demands, delivery to him of a pipe of wine, the court refused to allow the plaintiff to sign judgment, upon an affidavit that the plea was false. There was nothing absurd or inconsistent in the allegation that wine had been given in satisfaction of a demand (Smith v. Backwell, 4 Bing. 513). In Richley v. Proone, 1 B. & C. 286, a plea was set aside on an affidavit of falsity; but this decision is explained in Merrington v. Becket, 2 B. & C. 81, and in Smith v. Backell, supra; see also La Forest v. Langan, 4 Dowl. 642; Nutt v. Rush, 4 Exch. 490. Where the plea was so prepared that it was likely to occasion perplexity and expense, it was set aside (Smith v. Hardy, 8 Bing. 435). Pleading falsely for delay also affords ground for applying to set aside the plea. In Shadwell v. Berthoud (5 B. & A. 750), the plea, which was wholly false, alleged indebtedness by the plaintiff in a larger sum by virtue of a recognizance in the Exchequer. In Body v. Johnson (5′ B. & C. 756), the defendant pleaded, 1stly, the general issue, except as to part; and as to one-third of that Pleadings which embarrass. Frivolous pleadings. part, 2ndly, a bond given in satisfaction; to another, 3rdly, a set-off; and as to the residue, 4thly, a note given to the plaintiff. On an affidavit that these pleas were false, the court allowed the plaintiff's in each case to sign judgment. In Corbett v Powell (5 B. & A. 750), a false plea to debt on bond, by executor, that before the death of the testator the bond had been assigned, and that payment had been made to the assignee, was set aside. In Bartley v. Godlake (2 B. & A. 199), a plea setting out an accounting or agreement as to the balance, and payment partly by bill of exchange and partly by assignment of an Irish judgment debt, and which was wholly false, was set aside (see Nutt v. Rush, 4 Exch. 190). In Miley v. Walls (1 Dowl. 648), a false plea that the signature of the defendant to the bill on which the action was brought was obtained without consideration, he having signed a blank stamp merely, was set aside. There are some cases in which pleas have been set aside on the ground of their being calculated to embarrass the plaintiff in replying. Thus, where the plea mixes together a great variety of assertions, some of which contain matter of law, and some matters of fact, to which it is impossible to reply, and the object is to perplex and delay, rather than to set up a good ground of defence, it will be set aside (Balmanno v. Thompson, p. 47, supra). In assumpsit on a promissory note, payee against makers, the defendant pleaded that there was no consideration, and that the note was made subject to the condition that the defendants should not be called upon to pay if they were not able, but that it should be renewed. There was an affidavit of falsehood. The court set aside the plea as tricky, false, and calculated to embarrass the plaintiff (Mitford v. Finden, 8 M. & W. 511). A plea by a defendant, that a third person, at his request, guaranteed the debt to the plaintiff, which guarantee the plaintiff accepted and then released the defendant, was designated by Maule, J., as complicated and sham ( Waterman v. Carden, 6 M. & G. 752). The mere fact of a plea being insufficient in point of law does not justify an application for leave to sign judgment (Cowper v. Jones, 4 Dowl. 591; and see Balmanno v. Thompson, p. 47, supra), for the plaintiff may demur. But if the defendant be under terms of pleading issuably, and plead a clearly bad plea, the plaintiff may sign judgment as for want of a plea. See in Chitty's Practice (10th edit. pp. 226-229) a collection of cases of non-issuable pleas; to which may be added, Bishop of London v. M'Niel (L. J. 23, Ex. 111); Sully v. Fream (10 Exch. 535); and Millett v. Brown (2 H. & N. 837). See also observations in Oulds v. Harrison (10 Exch. 578). A plea which is clearly frivolous, and contains no answer to the action, will be set aside (Bradbury v. Emans, 5 M. & W. 595); in which case an acceptor, sued by an endorsee, pleaded the giving of another bill to drawer in renewal, and that he had no notice of the endorsement. Where in an action by endorsee against acceptor on two bills, the pleas were to one bill, no consideration between drawer and defendant; to the other, no consideration paid by plaintiff to defendant,-both pleas were set aside as frivolous (Knowles v. Burward, 10 A. & E. 19). Where the plea is not clearly frivolous (as where it is pleaded in the form prescribed by a rule of court), the court will not interfere on motion (Horner v. Keppel, 10 A. & E. 17; and see 2 P. & D. 234,-obs. by Coleridge, J.). The court has, in several of the above cases, strongly reprobated the pleading of sham pleas. Bad pleading for delay has always been treated as a contempt, and the fines for it once formed a source of revenue to the Crown (Com. Dig. Prerogative, D. 22). In Pierce v. Blake (Salk. 515), the attorney in the cause was fined, and in Thomas v. Vandermoolen, Blewitt v. Marsden and Bartley v. Godlake, supra, he was ordered to pay the costs. A replication to a plea of the Statute of Limitations (3 & 4 Cases upon Will. 4, c. 42), that the defendant made an acknowledgment that this section. the debt remained unpaid and due to the plaintiff within the true intent and meaning of the statute, and that the action was brought within twenty years after such acknowledgment, was held to be so framed as to embarrass and prejudice the fair trial of the cause, and must be amended by specifying one or more of the modes of acknowledgment mentioned in the statute (Forsyth v. Bristowe, L. J. 22, Ex. 70). In an action for infringement of patent a plea which amounted to an argumentative traverse of the specification was struck out (Hancock v. Noyes, 9 Exch. 388). See also Cuthbertson v. Irving, 4 H. & N. 742. It remains doubtful whether this section applies to proceedings upon a prerogative writ of mandamus (Reg. v. The Saddlers' Company, L. J. 22, Q. B. 451). 53. Rules to declare, or to declare peremptorily, and rules to reply, and plead subsequent pleadings, shall not be necessary, and instead thereof a notice shall be substituted requiring the opposite party to declare, reply, rejoin, or as the case may be, within four days, otherwise judgment; such notice to be delivered separately or indorsed on any pleading to which the opposite party is required to reply, rejoin, or as the case may be. Four days stituted for rule to de notice sub clare, reply or rejoin. After the entry of an appearance the plaintiff may declare at Time for deany time, except of course between the 10th of August and the claring. 24th of October. He has the whole of the term next after the entry of the appearance to declare in, without having judgment of non pros. signed against him (Foster v. Prynne, 9 Dowl. 749). If no judgment of non pros. be signed, he has a year to declare in, after the return day of the writ, after which period he will be out of court (s. 58, post). If the plaintiff is unable to declare within the time allowed him, as, for instance, where he has been unable to serve one or more of several defendants, in which case to declare against one and then against the other, when they appeared, would be irregular (Morton v. Grey, 9 B. & C. 544), he should, if he receives a notice to declare (s. 53, post) from the defendants who have appeared, obtain time to declare upon application to a judge; as the old side bar rule for time is abolished (R. G., H. T. 1853, r. 7). The defendant, in order to prevent delay, may, if the plaintiff does not declare within the time limited, deliver a notice under the above section. If the plaintiff after this demand requires further time, his course is to apply for it specially to the court or a judge; and if the defendant signs judgment before the time for showing K. D cause, such judgment may be set aside, the defendant's proper course being to show cause (Beazley v. Dailey, 16 M. & W. 58). One demand only is necessary. If the plaintiff obtains further time to declare after such demand, the defendant is entitled to sign judgment at the expiration of the time allowed, without a fresh demand (Teulon v. Gant, 5 Dowl. 153). This proceeding is not applicable in causes removed by certiorari (Garton v. G. W. Railway Company, L. J. 28, Q. B. 103). The plaintiff may reply at any time, except between the 10th of August and 24th of October, and he may be compelled to do so by a notice or demand of replication, which may be endorsed on the plea, or delivered separately. Formerly, if after a rule to reply had been given in one term the cause stood over until the next, a fresh rule was necessary; but this has ceased to be the practice (Pryer v. Smith, 2 Dowl. 114). The plaintiff may apply for further time on showing facts to justify the application (Crutchley v. L. and B. Railway Company, 2 D. & L. 102). If a party deliver a pleading after the time for doing so has expired, but before the opposite party has signed judgment, judgment signed after such delivery will be set aside (Gray v. Pennell, 1 Dowl. 120). As to rules to plead, see post, s. 62. 54. Every declaration and other pleading shall be entitled of the proper court, and of the day of the month and the year when the same was pleaded, and shall bear no other time or date, and every declaration and other pleading shall also be entered on the record made up for trial and on the judgment roll under the date of the day of the month and year when the same respectively took place, and without reference to any other time or date, unless otherwise specially ordered by the court or a judge. The pleadings should be entitled on the face; entitling them on the back is not sufficient; and if not properly entitled a pleading may be set aside as irregular (Ripling v. Watts, 4 Dowl. 290). So the date must be stated, and it must be stated to be "in the year of our Lord," mentioning the year (Holland v. Tealde, 8 Dowl. 320); otherwise, it will be irregular. The want of a date (Ripling v. Watts, supra), or a date different from that of filing or delivery, will constitute an irregularity, amendable at the plaintiff's cost (Hodson v. Pennell, 4 M. & W. 373). 55. It shall not be necessary to make profert of any deed or other document mentioned or relied on in any pleading; and if profert shall be made it shall not entitle the opposite party to crave oyer of or set out upon oyer such deed or other document. In an action by an executor who had not taken out probate, proceedings were stayed until it should be produced (Webb v. Atkins, 14 C. B. 401). See note to following section. forth, and be 56. A party pleading in answer to any pleading in Document which any document is mentioned or referred to shall may be set be at liberty to set out the whole or such part thereof considered as may be material, and the matter so set out shall be deemed and taken to be part of the pleading in which which it is it is set out. Where to a declaration upon an award the defendant set out the award in his plea, and thereupon demurred to the declaration, the plea was held bad, as the award was to be taken as part of the plea (Sim v. Edmonds, L. J. 23, C. P. 229; and better, 2 Com. Law Rep. 749). Formerly, if a plaintiff declared on a deed to which he was a party, and which was in his possession, he was obliged to make profert, i. e. to produce the deed to the court. If his opponent wished to bring any part of that deed before the court, or to deny its being his deed, he was obliged to demand oyer, that is, theoretically, to ask to have it read in court, practically, to get a copy from the plaintiff's attorney. He was then obliged to set out the whole deed in his pleading, though the question might turn upon twenty words. Questions of pleading were constantly arising as to the effect of oyer, and how advantage ought to be taken of an omission or misrecital of the deed. The cases are collected in Smith v. Yeomans (1 Saund. 317), and in Turquand v. Hennett (7 C. B. 179). No profert was required of instruments not under seal, nor even of instruments not falling within the technical description of a "deed," as a sealed will, or a sealed award. A defendant, entitled to an inspection of such documents, applied to the court for such inspection, which was only granted in certain limited cases. The cases in which inspection was so granted were found in practice to be too limited in number, and the commissioners appointed to report on the pleading and practice of the superior courts being further of opinion that the formalities of profert and oyer might be advantageously done away with, and that "deeds" might be placed on the same footing as ordinary written instruments, recommended that wherever inspection of any document could be had by a bill of discovery in equity, it should be obtainable in any court of common law where the action was pending. In consequence of this recommendation provision was made by 14 & 15 Vict. c. 99, s. 6 (see C. L. P. A. 1854, s. 50, n., post), and profert and oyer were abolished by the above section. a part of the pleading in set forth. sary. A plaintiff need not now make profert, but in his declaration Profert no he must state concisely the effect of that part of the deed on longer neceswhich he relies (Sched. B., No. 24). Nor need a defendant make profert in a plea, but he may, in the same way, state the effect of the deed on which he grounds his defence (Sched. B., No. 42). If one party rely on any part of a deed in the other party's possession, of which he requires inspection, he must apply for such inspection, by summons or rule, as has hitherto been the practice in reference to ordinary written instruments. "Oyer," did not include inspection. Nor is profert of letters testamentary or letters of administration required, the section stating expressly, "any deed or other document mentioned or relied on in any pleading.' 57. It shall be lawful for the plaintiff or defendant Performance |