entitled to the costs of the cause in respect of such defence, commencing at "Instructions for Plea," but not before.

See the note to 15 & 16 Vict., c. 76, s. 73, ante p. 41.

(a) See Cauty v. Gyll, 4 M. & Gr. 907; where it was held, that plaintiff, under T. T., 1 Vict., was only entitled to tax his costs on accepting money out of court, where the acceptance was in satisfaction of the whole demand, and not where there were other issues to be tried; and see Harrison v. Watt, 16 M. & W. 317, per Parke, B.

13. Where money is paid into court in several actions which are consolidated, and the plaintiff, without taxing costs, proceeds to trial on one and fails, he shall be entitled to costs on the others up to the time of paying money into court.

This is a re-enactment of H. T., 2 Wm. 4, r. 104.

DEMURRER.

14. The party demurring may give a notice to the opposite party to join in demurrer in four days, which notice may be delivered separately or indorsed on the demurrer, otherwise judgment.

This rule supersedes H. T., 4 Wm. 4, r. 3, by which a rule for joinder in demurrer was abolished, and a demand of joinder substituted. The opposite party was bound to deliver a joinder within four days after demand. The court cannot, it seems, shorten the time allowed for joining in demurrer; Hall v. Popplewell, 5 M. & W. 341.

For form of joinder, see 15 & 16 Vict., c. 76, s. 89, ante p. 48.

15. No motion or rule for a concilium shall be required; but demurrers, as well as all special cases, special verdicts, and appeals from county courts, shall be set down for argument in the special paper at the request of either party, four clear days before the day on which the same are to be argued, and notice thereof shall be given forthwith by such party to the opposite party.

This rule re-enacts, with alterations (as shown by the words in italics), H.T., 4 Wm. 4, r. 6. The words " upon payment of a fee of one shilling," which were in that rule, are left out. The notice must be given in time to allow of the preparation of the demurrer books. See Britten v. Britten, 2 Dowl. 239.

16. Four clear days before the day appointed for argument the plaintiff shall deliver copies of the demurrer book, special case, special verdict, or appeal cases, with the points intended to be insisted on (a), to the Lord Chief Justice of the Queen's Bench or Common Pleas, or Lord Chief Baron, as the case may be, and the senior Puisne Judge of the court in which the action is brought; and the defendant shall deliver copies to the other two judges of the court next in seniority; and in default thereof by either party, the other party may on the day following deliver such copies as ought to have been so delivered by the party making default; and the party making default shall not be heard until he shall have paid for such copies (b), or deposited with the master a sufficient sum to pay for such copies. If the statement of the points have not been exchanged between the parties, each party shall, in addition to the two copies left by him, deliver also his statement of the points to the other two judges, either by marking the same in the margin of the books delivered, or on separate papers.

This rule is a re-enactment of H. T., 4 Wm. 4, r. 7; and it also provides for all the courts a uniform course of practice as to the statement of points in the copies of the books, &c., or on separate papers delivered to the judges. This was formerly regulated in the Queen's Bench by R. E., 2 J. 2; R. M., 38 Geo. 3; in the Common Pleas, by H. T., 11 Geo. 4; and see H. T., 48 Geo. 3; and a similar practice was adopted in the Exchequer.

(a) The paper books, in case of a demurrer, must state the points intended to be made on each side, and the party whose pleading is demurred to cannot object to a prior pleading unless his paper book states the point (Arbouin v. Anderson, 1 Q. B. 502); though it seems probable that the court would decide without argument upon a substantial point not stated in the margin. (See Arbouin v. Anderson, 1 Q. B. 502; Devaux v. Anstice, C. P., 3 Dec. 1840; and Chit. Forms of Pract. Proceedings, 159.)

In one case the Court of Queen's Bench postponed a case in order that an objection might be stated in the margin; Coleby v. Graves, cited by Knowles (amicus curia) in 3 M. & W. 235; and see Scott v. Chappelow, 4 M. & Gr. 342., per Maule, J.

(b) Where the plaintiff has delivered all the demurrer books, he cannot call upon the defendant to pay for those delivered to the junior puisne judges, as a condition of his being heard, unless he has himself strictly complied with this rule, by delivering the books for the defendant on the day following that on which the

defendant should have delivered them; Hooper v. Woolmer, 10 C. B. 370. The objection that paper books have not been delivered in time, nor paid for, may be taken in the Common Pleas without any notice of an intention to take it; Dorsett v. Aspdin, 2 L. M. & P. 625: but it seems that the practice is otherwise in the Queen's Bench; Sandall v. Bennett, 2 A. & E. 204.

17. When there shall be a demurrer to part only of the declaration or other subsequent pleadings, those parts only of the declarations and pleadings to which such demurrer relates shall be copied into the demurrer books; and if any other parts shall be copied, the Master shall not allow the costs thereof on taxation, either as between party and party, or as between attorney and client.

This was formerly provided for in the Queen's Bench by R. H., 8 & 9 Geo. 4 (7 B. & C. 642); in the Exchequer, by M. T., 9 Geo. 4, (2 Y. & J. 530), and in the Common Pleas, by R. H., 8 & 9 Geo. 4, (4 Bing. 549, 550).

VENUE, CHANGE OF.

18. No venue shall be changed without a special order of the court or a judge, unless by consent of the parties.

As to the practice of changing Venue, see Chit. Forms of Pract. Proceedings, 170-178. The former rules upon the subject were T. T., 49 Geo. 3 (11 East, 273); R. H., 2 Wm. 4, r, 103.

PARTICULARS OF DEMAND OR SET-OFF.

19. With every declaration (unless the writ has been specially indorsed under the provisions contained in the 25th section of the Common Law Procedure Act, 1852), delivered or filed, containing causes of action such as those set forth in schedule (B) of that Act, and numbered from 1 to 14 inclusive, or of a like nature, the plaintiff shall deliver or file full particulars of his demand under such claim, where such particulars can be comprised within three folios; and where the same cannot be comprised within three folios, he shall deliver or file such a statement of the nature of his claim, and the amount of the sum or balance which he claims to be due, as may be comprised within that number of folios; and with every plea of set-off containing claims of a similar nature as those in respect of

which a plaintiff is required to deliver or file particulars, the defendant shall in like manner deliver particulars of his set-off. And to secure the delivery or filing of particulars in all such cases, it is ordered, that if any such declaration shall be delivered or filed, or any plea of set-off delivered, without such particulars or such statement as aforesaid, and a judge shall afterwards order a delivery of particulars, the plaintiff or defendant, as the case may be, shall not be allowed any costs in respect of any summons for the purpose of obtaining such order, or of the particulars he may afterwards deliver; and a copy of the particulars of the demand, and set-off, shall be annexed by the plaintiff's attorney to every record at the time it is entered with the proper officer.

This rule re-enacts and extends T. T., 1 Wm. 4, r. 6. The main alterations are effected by the words in italics.

Formerly, if the declaration was filed, particulars had to be given with the notice of such declaration; but it is apprehended that notice of filing a declaration is dispensed with by 15 & 16 Vict., c. 76, sec. 28, ante p. 18. Again, a defendant had not formerly to give particulars of his set-off, unless the plaintiff obtained them by judge's order, or unless the judge imposed on the defendant the terms of delivering such particulars on application by him for time to plead or for an order to plead several matters. If the defendant did not comply with the order at all, or not substantially, he was not allowed to give evidence of his set-off at the trial; Ibbett v. Leaver, 16 M. & W. 770; Young v. Geiger, 6 C. B. 552.

As regards the form of particulars, see 2 Chit. Arch. 1256, and for a case where the debt was paid after action brought, see Nosotti v. Page, 2 L. M. & P. 8.

As to pleading to sums credited in particulars, see post p. 279.

20. A summons for particulars, and order thereon, may be obtained by a defendant before appearance, and may be made, if the judge think fit, without the production of any affidavit.

This is a re-enactment of H. T., 2 Wm. 4, r. 47.

21. A defendant shall be allowed the same time for pleading after the delivery of particulars under a judge's order which he had at the return of the summons, unless otherwise provided for in such order.

This is a re-enactment of the first part of H. T., 2 Wm. 4, r. 48.

The words in italics are new. The former rule contained the further order that judgment should not be signed till the afternoon of the day after the delivery of the particulars, unless otherwise ordered by the judge. See 1 Chit. Arch. 210.

It seems as yet doubtful, what is the proper course to take if the order contains a clause for a stay of proceedings, and the plaintiff' does not comply with the order. See Wickens v. Cox, 4 M. & W. 67, 6 Dowl. 693. S. C.; Maunder v. Collett, 3 C. B. 554.

SECURITY FOR COSTS.

22. An application to compel the plaintiff to give security for costs must, in ordinary cases, be made before issue joined.

This is a re-enactment of H. T., 2 Wm. 4, r. 98.

The right to have security is not waived by the defendant's taking any step in the cause, as by pleading (Fletcher v. Lew, 3 Ad. & E. 551), obtaining order for time to plead (Dowling v. Harman, 6 M. & W. 131), or undertaking to take short notice of trial, provided such undertaking be made before issue joined (West v. Cooke, 1 C. B. 312; Edinburgh and Leith Railway Company v. Dawson, 7 Dowl. 573.)

As to manner of making this application, see 2 Chit. Arch. 1235. It may be useful to refer to one or two late cases as to when a plaintiff will be compelled to find security. See Kilkenny Railway Company v. Fielding, 2 L. M. &. P. 124, 6 Exch. R. 81. S. C.; Tambisco v. Pacifico, 21 L. J., Exch. 276; Mais v. M'Namara, 5 Exch. R. 267.

DISCONTINUANCE.

23. To entitle a plaintiff to discontinue after plea pleaded, it shall not be necessary to obtain the defendant's consent, but the rule shall contain an undertaking on the part of the plaintiff to pay the costs, and a consent that if they are not paid within four days after taxation, defendant shall be at liberty to sign judgment of nonpros.

This is a re-enactment of H. T., 2 Wm. 4, r. 106. The court cannot set aside such rule; Potts v. Hirst, 6 M. & Gr. 934, 7 Scott. N. R. 800, S. C.

STAYING PROCEEDINGS.

24. In any action against an acceptor of a bill of exchange, or the maker of a promissory note, the defendant