Judge's or

By this section the provisions of 4 Anne, c. 16, s. 4 (so far as relate to allowing several pleas to be pleaded), are extended to replications, and subsequent pleadings; but a provision somewhat similar to one in sec. 11 of that act, making an affidavit necessary, has been added. It seems that the court will rarely dispense with some kind of affidavit. See Crouch v. London and North Western Railway Company, 20 L. T., 238 Exch.

The words in italics were inserted by the House of Commons See T. T., 16 Vict. r. 2, post p. 275.

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

several matters suffi

cient.

Objections

Formerly it was necessary in all cases to obtain a rule to plead several matters. (See form, Chit. Forms, 42, and see 1 Chit. Arch. 259.) Such rule will now only be necessary when a judge has refused to allow the proposed pleas to stand.

Where such an application is made to the court, it is not necessary that the previous application to the judge should be noticed in the rule; Johnstone v. Knowles, 1 Dowl. N. S. 30.

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

veral mat

ters.

Certain

pleas may be pleaded together without leave.

LXXXIV. 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 denying any contract or debt alleged in the declaration; a plea of tender as to part; a plea of the Statute of Limitations, set-off, bankruptcy of the defendant, discharge under an insolvent act, plenè administravit, plenè administravit præter, infancy, coverture, payment, accord and satisfaction, release, not guilty, a denial that the property, an injury to which is complained of, is the plaintiff's, leave and license, son assault demesne, and 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.

This section extends the provisions in R. T., 1 Wm. 4, r. 13. It was necessary formerly to obtain a rule of court to plead these pleas.

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

See 1 Chit. Arch. 247.

Formerly if a plea, which ought to have been signed, was delivered without signature, the plaintiff might have treated it as a nullity, and signed judgment; but by replying, or making up the issue, he waived the objection; Shield v. Quick, 8 M. & W. 289.

of counsel.

ing several

ment may

LXXXVI. Except in the cases herein specifically For pleadprovided for, if either party plead several pleas, matters replications, avowries, cognizances, or other plead- without ings, without leave of the court or a judge, the leave, judgopposite party shall be at liberty to sign judgment; be signed. 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 may think fit (a).

he

See R. H., 2 Wm. 4, r. 1, s. 34; and Glen v. Lewis, 8 Exch. Rep. 132.

The proviso is new. The courts have, however, been in the habit of allowing the defendant to amend on an affidavit of merits and payment of costs. See Harvey v. Hamilton, 4 Exch. Rep. 43; Christie v. Walker, 1 Bing. 187.

Judgment may be signed under this section, where there is a substantial variance between the pleas, or any one of the pleas allowed by the order, and those delivered; Hills v. Hayman, 2 Exch. Rep. 323; Gabardi v. Harmer, 3 Exch. Rep. 239.

(a) See Messiter v. Rose, 22 L. J., C. P. 78.

assignment

LXXXVII. One new assignment only shall be One new pleaded to any number of pleas to the same cause only allowof action; and such new assignment shall be con- ed in respect sistent with and confined by the particulars delivered of the same in the action, if any, and shall state that the plaintiff action. proceeds for causes of action different from all those which the pleas profess to justify, or for an excess

cause of

Pleas not to

over and above what all the defences set up in such pleas justify, or both.

The provisions in this and the following section are new, and the reasons for adopting them will be found at length in the Report of the Common Law Commissioners, p. 27.

The commissioners proposed, that either party should be entitled to particulars in actions for trespass to person, or property; and that plans of the locus in quo might be ordered by a judge to be exchanged between the parties; but a clause to that effect was struck out in the House of Lords, as it was thought that an application would be made in every cause, and this would cause delay, and increase the costs. See Key v. Thimbleby, 6 Exch. R. 696, and Horlock v. Leddiard, 10 M. & W. 678. See also post p. 281.

LXXXVIII. No plea, which has already been be repeated. pleaded to the declaration, shall be pleaded to such new assignment, except a plea in denial, unless by leave of the court or a judge; and such leave shall only be granted upon satisfactory proof that the repetition of such plea is essential to a trial on the merits.

Form of LXXXIX. The form of a demurrer, except in the demurrer, and joinder cases herein specifically provided for, shall be as in demurrer. follows, or to the like effect :

The defendant, by his attorney [or, in person,

66

&c., or plaintiff], says, that the declaration "[or plea, &c.] is bad in substance;"

and in the margin thereof some substantial matter of law intended to be argued shall be stated; and if any demurrer shall be delivered without such statement, or with a frivolous statement, it may be set aside by the court or a judge (a), and leave may be given to sign judgment as for want of a plea (b); and the form of a joinder in demurrer shall be as follows, or to the like effect:

"The plaintiff [or, defendant] says that the "declaration [or, plea, &c.] is good in sub"stance "(c).

See R. H., 4 Wm. 4, r. 14, and c. 2, r. 2.

The words "except in the cases, &c." have been left in

by mistake. They referred to the special demurrer which was to be allowed in certain cases. See note to sec. 52.

(a) The application to set aside must be made on affidavit, stating the substance of the pleadings, or with a copy of them annexed; Hamer v. Anderton, 9 Dowl. 119; Danieli v. Lewis, 1 Dowl. N. S. 542. It can be made after an order for time to join in demurrer, as a frivolous demurrer is not an irregularity, but an improper proceeding, which the court in its discretion may set aside at any time (Cutts v. Surridge, 9 Q. B. 1015); but it cannot, it would seem, be made after joining in demurrer (Norton v. Mackintosh, 7 Dowl. 529). The words "as irregular," which are in the former rule of R. H., 4 Wm. 4, are omitted in this act.

(b) "Plea" here means "pleading," and a judge has power to set aside a demurrer to any pleading by either party. See Cutts v. Surridge, 9 Q. B. 1015.

Where the plaintiff demurs to a plea, on the ground that it is an immaterial traverse, the court will not, as a general rule, put the plaintiff to the alternative of having his demurrer set aside as frivolous, or of striking out of the declaration the allegation traversed by the plea, but will exercise discretion according to each case; Tallis v. Tallis, 19 L. T. 107, commenting upon Cutts v. Surridge, ubi suprà.

(c) As to notice to join in demurrer, see R. H., 16 Vict., r. 14, post p. 151; and as to the setting the case down for argument, and delivering copies of books, see R. H., 16 Vict., rr. 15, 16, 17, post pp. 151, 152.

ter amend

ment.

XC. Where an amendment of any pleading is Time for allowed, no new notice to plead thereto shall be pleading afnecessary; but the opposite party shall be bound to plead to the amended pleading within the time specified in the original notice to plead, or within two days after amendment, whichever shall last expire, unless otherwise ordered by the court or a judge; and in case the amended pleading has been pleaded to before amendment, and is not pleaded to de novo within two days after amendment, or within such other time as the court or a judge shall allow, the pleadings originally pleaded thereto shall stand and be considered as pleaded in answer to such amended pleading (a).

This section regulates the time for pleading to amended pleadings in all the courts, and gives power to allow further time to plead.

D

Examples of

Formerly, the practice seems to have differed in the courts. In the Common Pleas, by E. T., 1 Wm. 4, r. 2, and in the Queen's Bench, by a long course of practice, the defendant had two days, exclusive of the day of amendment, to alter his plea, or plead de novo, unless otherwise ordered by the court or a judge; but in the Exchequer the defendant was not so entitled, unless it was so expressed in the order. See Smith v. Hearn, 12 M. & W. 715, and Lush's Prac. 387.

(a) Formerly, a plea, already pleaded, would, if it applied to the amended declaration, have been considered as pleaded to such amended declaration; Fagg v. Borsley, 2 Dowl. 107, but see Huckvale v. Kendal, 3 B. & Ald. 137.

And whereas it is desirable that examples should Pleading. be given of the statements of causes of action, and of forms of pleading, be it enacted as follows:

Forms in schedule may be adopted.

Judgment by

default, and

XCI. The forms contained in the schedule (B) to this act annexed shall be sufficient, and those and the like forms may be used, with such modifications as may be necessary to meet the facts of the case; but nothing herein contained shall render it erroneous or irregular to depart from the letter of such forms, so long as the substance is expressed without prolixity.

And with respect to judgment by default, and the ascertaining mode of ascertaining the amount to be recovered amount to be thereupon, be it enacted as follows:

recovered.

Rule to compute abolished.

Judgment by default for liqui

XCII. No rule to compute shall be necessary or used; but nothing in this act contained shall invalidate any proceedings already taken or to be taken by reason of any rule to compute made, or applied for, before the commencement of this act.

As to the former practice for obtaining and serving a rule to compute, see 2 Chit. Arch. 911.

XCIII. In actions where the plaintiff seeks to recover a debt, or liquidated demand in money, dated de- judgment by default shall be final.

mands final.

Upon this section, and its connexion with sec. 25 and sec. 59, see a very learned note in Chit. Prac. Forms, 103.