pleaded as aforesaid by way of confession and avoidance are respectively true in substance and in fact, and that he is further advised and believes that the objections raised by such demurrer are good and valid objections in law and it shall be in the discretion of the court or a judge to direct which issue shall be first disposed of."

The nature of a demurrer will be noticed infra.

pleas.

81. "The plaintiff in any action may, by leave of the Pleading court or a judge, plead in answer to the plea, or the several subsequent pleading of the defendant, as many several matters as he shall think necessary to sustain his action; and

"the defendant in any action may, by leave of the court or a judge, plead in answer to the declaration, or other subsequent pleading of the plaintiff, as many several matters as he shall think necessary for his defence;

"upon an affidavit of the party making such application, or his attorney, if required by the court or a judge, to the effect that he is advised and believes that he has just ground to traverse the several matters proposed to be traversed by him, and that the several matters sought to be pleaded as aforesaid by way of confession and avoidance are respectively true in substance and in fact; provided that the costs of any issue, either of fact or law, shall follow the finding or judgment upon such issue, and be adjudged to the successful party, whatever may be the result of the other issue or issues."

66

82.

"No rule of court for leave to plead several Judge's matters shall be necesary where a judge's order has been order to made for the same purpose."

plead several matters

83. "All objections to the pleading of several pleas, sufficient. replications, or subsequent pleadings, or several avowries Objections to pleadings or cognizances, on the ground that they are founded on to be heard the same ground of answer or defence, shall be heard on summons upon the summons to plead several matters."

to plead several

The practice now will be by summons in the usual way matters. for leave to plead several pleas, with a short abstract or statement of the intended pleas, which should be served on the plaintiff's attorney or agent before nine at night. The summons will be a stay of proceedings from the time of its return (Wells v. Secret, 2 Dowl. 447); and the order, when obtained, whether by consent or after attendance before the judge, should be drawn up and served on the opposite party, as in the case of any other summons, and the pleas, replications, &c., may then be pleaded. The practice having

been thus altered, the application might, it is apprehended, be made in the first instance to the court, but it would not be advisable except in special cases. The judge's decision may also be appealed from, but if this be intended, care should be taken that the order does not purport to be made " by consent," for that would be an estoppel. It would seem also that as all objections, on the ground that the pleas, &c., are founded on the same ground or defence, are to be heard upon the summons, an appeal to the court upon this point would be limited to objections made at chambers. But pleas manifestly inconsistent with each other, and appearing to be vexatious y pleaded, and for the purpose of occasioning inconvenience and expense to the plaintiff, may be disallowed. (See Tribner v. Duer, 1 B. N. C. 266; Cooling v. Great Northern Railway, 15 Q. B. 486; 19 L. J. 529, Q. B.; Gully v. Bishop of Exeter, 5 Bing. 42.) Examples of what were and what were not allowed as pleas, were given by Reg. H., 4 Will. IV. r. 6; and numerous cases will be found, Chitty's Archb. i. 250. But in future it is probable that the chief mode of restricting several Affidavit of pleas will be requiring the affidavit under sect. 81.

truth.

This

provision would have been fraught with great injustice had it been compulsory in all cases; but under this discretionary power it may be of the greatest use. It is impossible to lay down any universal rule to govern the exercise of this discretion; but it is submitted that in all cases where an averment, whether affirmative or negative, is of a fact necessarily within the personal knowledge of the party pleading, the affidavit ought to be required. This would put an end to a great number of sham pleas, and tend much to the decision of each cause upon its merits. It might in many cases also be required as to facts, the truth of which the party pleading might fairly be presumed to know in the ordinary course of the business transactions of life. The provisions of Reg. Gen., H. T., 4 Will. IV. r. 6 (supra, 51), would seem no longer to apply, except as to counts, as all objections are to be heard upon the summons. (See title "Costs" in the Index.)

In the following cases the several pleas may be pleaded as a matter of course, without any order, but probably in all cases an order will be requisite as to several replications and subsequent pleadings, for the whole section points to pleas only.

84. "The following pleas, or any two or more of them, may be pleaded together as of course, without leave of the court or a judge; that is to say

a plea denyiug any contract or debt alleged in the declaration,

"bankruptcy of the defendant,

discharge under an insolvent act,

"plenè administravit-Plenè administravit præter, "infancy,

"coverture,

payment,

"accord and satisfaction,

"release,

"not guilty,

66 a denial that the property, an injury to which is complained of, is the plaintiff's,

"leave and licence,

66 son assault demesne, and

66

any other pleas which the judges of the said superior courts, or any eight or more of them, of whom the chief judges of the said courts shall be three, shall by any rule or order, to be from time to time by them made in term or vacation, order or direct."

However desirable it may be to require an affidavit as to the truth of many of the above pleas, it seems clear that it could not be done, as the affidavit is to be by the party "making such application or his attorney," and the above pleas are to be pleaded without any application. Probably if any plea not here specified were added, the affidavit might then be required as to all. Possibly also the courts might, under the powers conferred on them by 13 & 14 Vict. c. 16, make further rules on this subject.

None of these provisions, of course, apply where the several pleas are not pleaded to the same part of the declaration. The pleas, when delivered, need not state the judge's order. (See sect. 67, supra.) The affidavit must be by the party, or his attorney. It will be better to follow the words of the act, and it may be as follows:

In the Q. B. [or "C. P." or " Exch. of Pleas."]

Between A. B., plaintiff, and C. D., defendant.

C. D., the above-named defendant, maketh oath and saith, that the several matters proposed to be traversed by him, and the several matters sought to be pleaded by way of confession and avoidance in this action, are specified in the abstract hereunto annexed: And this deponent further saith, that he is advised and believes that he has just ground to traverse the said several matters respectively proposed to be traversed by him, and that the said several matters so proposed to be pleaded by him by way of confession and avoidance, are respectively true in substance and effect.

Sworn, &c.

If the affidavit is limited to traverses, or to the pleas in

Affidavit of

truth.

For pleading

several matters without

leave, judg ment may be

signed.

General traverses.

confession and avoidance, it can easily be altered accordingly. So also if made by the attorney. The order to plead several matters will not preclude a plaintiff from signing judgment, if the pleas vary from the abstract (Wells v. Robinson, 5 Exch. 302), or if any one of them is not issuable. (Humphreys v. Waldegrave (Earl), 6 M. & W. 623.)

86. "Except in the cases herein specifically provided for, if either party plead several pleas, replications, avowries, cognizances, or other pleadings, without leave of the court or a judge, the opposite party shall be at liberty to sign judgment; provided that such judgment may be set aside by the court or a judge, upon an affidavit of merits, and such terms as to costs and otherwise as they or he may think fit."

For instances of signing judgment, see Harney v. Hamilton (4 Exch. 43; 18 L. J. 377, Exch.), Hills v. Haymen (3 Exch. 323; 17 L. J. 128, Exch.) The words here are not upon an affidavit "disclosing a defence upon the merits," see s. 27, and it would seem, therefore, that the old practice as to an affidavit of merits may be followed. This may be made either by the defendant himself, or his attorney or agent, or the clerk of the attorney having the sole management of the cause, or some person who has such a connexion with the cause as acquaints him with the merits, and this must appear on the face of the affidavit. The statement as to the merits must be expressly applied to the particular action. (Tate v. Bodfield, 3 Dowl. 218; Bromley v. Gerish, 1 D. & L. 768; see Chitty's Archb. ii. 884.) It may be laid down generally that the plea should concisely state, in simple and intelligible language, all such facts as are necessary to sustain the defence. It will still be in substance either a traverse, or a plea in confession or avoidance. A denial of any single material averment, e. g. that the defendant did not accept the bill in the declaration (or in the first count) mentioned will be easy and simple, but questions will no doubt arise from attempts to include in one traverse more than a single material allegation. And the decisions as to the extent of the old general pleas, such as did not promise, was not indebted, not guilty, not possessed, &c. will be of as much importance as before, since by section

76. "A defendant may either traverse generally such of the facts contained in the declaration as might have been denied by one plea, or may select and traverse separately any material allegation in the declaration, although it might have been included in a general traverse."

This section will be noticed again (infra, 'Pleading'), but an important point of practice is suggested by this, and the similar enactments in sects. 77, 78, 79, by which the whole of

any plea or subsequent pleading may be traversed by a general denial, or the substance of the plea or other pleading may be denied by a joinder of issue. It would have been well if these sections had been more explicit, for on the perusal of them in connexion with sect. 71 the question at once arises, whether the use of such general form of traverse is within the latter section, so as to require the leave of a court or judge. It is, in effect, permitting a traverse of all the material allegations in the plea, and the reason for having the power to require an affidavit when the traverses are separate applies just as strongly when the cumulative traverse is used. In one sense there are several matters "proposed to be traversed," but, on the other hand, as the general issue was only one plea, although it put many facts in issue, and the general denial of the plea or subsequent pleading is a substitute for, as well as an extension of, de injuriâ, and as the sections by which the power of thus pleading is conferred make no mention of leave being recessary, there is the strongest argument for construing the 77th, 78th and 79th sections as substantive enactments altogether independent of the 81st, and, therefore, holding that these are cases of double pleading "specifically provided for," and, therefore, within the 86th section, so as not to make the leave of the court or judge essential. Such a construction, indeed, will enable either party, without any restriction, to impose upon the other the necessity of proving every material allegation, so that one great object of the act, to disencumber the pleadings of matters not really in dispute, will be frustrated, except so far as the parties are deterred by the fear of the costs which may be incurred under the rules to be issued under sect.223 for apportioning the costs of issues, or may follow a verdict, being found distributively under sect. 75. It is, in truth, to a great extent nullifying by one section what is enacted by another.

This general power of traversing will, in every case, be subject to the exception, that where either party has averred performance of conditions precedent generally, the opposite party must specify the particular conditions precedent, the performance of which he intends to deny. (See sect. 57, infra, 'Pleading.')

The useless form of signing pleas or demurrers is no longer necessary; for by section

85. "The signature of counsel shall not be required Signature to any pleading."

Besides these general enactments, there are some provisions for particular pleas. Thus, by section

abolished.

70. "It shall be lawful for the defendant in all ac- Payment tions, (except actions for assault and battery, false im- into court in prisonment, libel, slander, malicious arrest or prosecu- tions.

certain ac