plea is one of nonjoinder of a co-defendant, the affidavit must state, with reasonable certainty, the residence of such co-defendant at the time of plea pleaded ;(1) and if it incorrectly state this, the plea may be set aside for irregularity.(3) Form of Affidavit. In the Q. B. ["C. P.," or "Exch. of P."] I, C. D., of Between A. B. plaintiff, and C. D. defendant. the above-named defendant, make oath and say, that the plea hereunto annexed is true in substance and in fact [if the plea is nonjoinder, add: and that E. F., in the said plea named, resides at No. in Sworn, &c. street, in the parish of 6. How Pleaded. and county of .] C. D. Pleas in abatement may generally be pleaded like other pleas, by attorney or guardian. A plea to the jurisdiction must, however, be pleaded in person. (3) A feme covert must also plead her coverture in person.() The plea is engrossed on plain paper, and delivered along with the affidavit, either annexed or separate. 7. Replication, &c. The plaintiff replies or demurs to the plea in abatement as in other cases. (5) If the plaintiff can do neither successfully, he should enter a cassetur breve,(®) or in case the plea is nonjoinder he may amend, as stated ante, p. 880. The plaintiff cannot, however, new assign.() If an issue in fact be joined, it is made up, and trial proceeded with as in other cases. 8. Judgment. When judgment is given for the plaintiff on a verdict (1) See ante, p. 879. (2) Maybury v. Mudie, 5 C. B. 283. (3) Bac. Abr. "Abatement," 2. See Hunter v. Neck, 3 M. & Gr. 181; 3 Sc. N. R. 452. (4) 2 Saund. 209 a. (3) See Esdaile v. Lund, 12 M. & W. 607; 1 D. & L. 565; Ryalls v. Bramall, 1 Exch. 734. (*) See ante, p. 853. (7) Hill v. White, 6 Bing. N. C. 26; 8 Sc. 249; 8 Dowl. 13. under a plea in abatement, it is one of quod recuperet, i. e. a final judgment ;(') and hence, if damages be the object of the action, and the jury omit to assess them, there can be no writ of inquiry but a trial de novo only.(2) If judgment be for the plaintiff on demurrer to the plea, the judgment is respondeat ouster only.(3) After this judgment the defendant had, previous to the Common Law Procedure Act, 1852, s. 63, only four days to plead in bar;() and it seems doubtful whether this law is altered. The plea in abatement and judgment of respondeat ouster need not, it seems, be entered on the second issue or nisi prius record. (3) If judgment is given for the defendant, whether after verdict or demurrer, it must be one that the writ be quashed.(*) 9. Costs. When the plaintiff on a verdict has a judgment of quod recuperet he is entitled to his costs; and so is a defendant if he succeed.() Where the plaintiff enters a cassetur breve, or confesses the plea to be true, he is not bound to pay costs. () Where the defendant pleads nonjoinder of a co-defendant, and the plaintiff amends and proceeds to trial, the regulation as to costs is stated ante, p 881. Where the defendant pleads nonjoinder of a co-plaintiff, the plaintiff may, on paying costs occasioned thereby, amend. (9) If judgment has been given on demurrer for either party, such party is entitled, by statute, to his costs in that behalf, on pleas of abatement as in other cases. (1o) (1) Bowen v. Shapcott, 1 East, 542. (2) Eichorn v. Lemaitre, 2 Wils. 367. (3) Bowen v. Shapcott, 1 East, 542. See also Phillips v. Claggett, 10 M. & W. 102; 2 Dowl. N. S. 258. (4) Cantwell v. Earl of Stirling, 8 Bing. 177; 1 M. & Sc. 365. (5) See Pepper v. Whalley, 5 N. & M. 437; 1 Har. & W. 480. (6) Bac. Abr. " Abatement," P.; Gib. C. B. 52. See Whitling v. Des Anges, 3 C. B. 910. 92. (7) Hullock, 126. () Greenhill v. Sheppard, 12 Mod. 145; Allen v. Moxey, 1 Barnes, () See post, "Amendment." (10) 3 & 4 Will. 4, c. 42, s. 34; Bentley v. Dawes, 10 Exch. 347; Gray on "Costs," 87. CHAPTER XXV. PLEA PUIS DARREIN CONTINUANCE. "A PLEA containing a defence, arising after the commencement of the action, may be pleaded together with pleas of defences arising before the commencement of the action, provided that the plaintiff may confess such plea, and thereupon shall be entitled to the costs of the cause up to the time of the pleading of such first mentioned pleas;" but this rule does not apply to one of several defendants.(1) Where a plea of payment of the sum claimed after action brought is pleaded, care should be taken to include the costs, otherwise the plaintiff is entitled to go on with the action, and will recover nominal damages, being entitled to his costs.(*) Where, however, a defendant has already pleaded, it sometimes happens that a matter of defence afterwards arises which it is desirable to make available; and this may be done by a plea puis darrein continuance, which may be pleaded before the jury have actually returned their verdict.(3) Thus he may plead a release,(*) accord and satisfaction, (5) that plaintiff has become an alien enemy,(*) bankruptcy of the plaintiff,() or of the defendant, an award, () judgment recovered for the same cause of action.(10) (1) Rules Pl. 22, 23, T. T. 1853. (2) Cook v. Hopewell, 11 Exch. 555. See also Kemp v. Balls, 10 Exch. 607; Goodwin v. Cremer, 18 Q. B. 757. Todd v. Emly, 1 Dowl. N. S. 598; 9 M. & W. 606. Wright v. Burrowes, 4 D. & L. 226. (5) Flockton v. Hall, 14 Q. B. 380. () Alcenous v. Nigreu, 4 E. & B. 217. (7) Brethertone v. Osborne, 1 Dowl. 457. Todd v. Maxfield, 6 B. & C. 105; 9 D. & R. 171, where it was held, if he did not plead it before verdict, he could not do so to an action on the judgment. (9) Storey v. Bloxam, 2 Esp. 505; Lewis v. Kermode, 2 Moore, 30. (10) Minshull v. Evans, 4 C. & P. 555. So, if an executor, he may plead judgment recovered against him since plea pleaded.(1) In ejectment he may plead entry of the plaintiff on part of the premises. (2) A set-off cannot be thus pleaded.(3) Where two actions were brought on a bill of exchange against the drawer and acceptor, and the drawer paid the debt and costs, it was held the acceptor could not plead this as a plea of the further maintenance. (*) Execution against the garnishee out of the Lord Mayor's Court may be so pleaded in an action.(5) The plea may be pleaded, though the defendant is under terms to plead issuably and take short notice of trial, (") or though the trial had been entered as undefended and postponed, (') or though judgment had been given for the plaintiff on an issue of nul tiel record, there being another issue still to be tried ;() but it cannot be pleaded after a verdict;(°) and if it is pleaded after a demurrer and joinder in demurrer, it operates as a retraxit of the demurrer. (10) "In cases in which a plea puis darrein continuance has heretofore been pleadable in banc or at nisi prius, the same defence may be pleaded, with an allegation that the matter arose after the last pleading; and such plea may, when necessary, be pleaded at nisi prius between the 10th of August and the 24th of October, but no such plea shall be allowed, unless accompanied by an affidavit that the matter thereof arose within eight days next before the pleading of such plea, or unless the court or a judge shall otherwise order."(") Thus the court allowed the plea after eight days, where the defendant had become a bankrupt, and the delay had arisen from no culpable conduct on his part. (12) Affidavit.]-An affidavit of the truth of the plea is absolutely necessary.(13) The court have allowed the plea, (1) Prince v. Nicholson, 5 Taunt. 333, 665; 1 Marsh. 70, 280; Lyttelton v. Cross, 3 B. & C. 317. (2) Moore v. Hawkins, Yelv. 180; Cro. Jac. 261. See Doe v. Brewer, 2 Chitt. R. 323; 4 M. & Sel. 301. (3) Richards v. James, 2 Exch. 471. (4) Randall v. Moon, 12 C. B. 261. (5) Webb v. Hurrell, 4 C. B. 287. (6) Bryant v. Perring, 5 Bing. 414; 2 M. & P. 760. (7) Whitmore v. Bantock, 1 M. & M. 122. (8) Wagner v. Imbrie, 6 Exch. 380; 2 L. M. & P. 333. (9) Lovell v. Eastaff, 3 T. R. 554. (10) Soloman v. Graham, 24 L. J. 332, Q. B.; Stoner v. Gibbons, Moore, 871. See also Wagner v. Imbrie, 2 L. M. & P. 333. (11) C. L. P. Act, 1852, s. 69. (12) Dunn v. Loftus, 8 C. B. 76. though the matter did not arise within eight days next before the pleading, where one of the defendants had been made bankrupt and the defendants understood the plaintiff did not intend to prosecute the action. (1) Where the plea is pleaded at nisi prius, the subject-matter arising during the trial, the judge may dispense with an affidavit.(3) But if an affidavit is necessary at nisi prius, it should be sworn before one of the judges of assize.(5) How pleaded.]-When pleaded during the action in banc, the plea is delivered to the opposite attorney with the necessary affidavit. If the plea can be pleaded at nisi prius, it may be delivered to the judge() any time before the verdict has been given, and the attorney afterwards transcribes it on the nisi prius record,(5) and it is returned to the court above,() when the plaintiff may reply or demur to the plea. If the eight days are likely to elapse before the cause is called, it should be tendered to the judge before such time.() The judge has no discretion to refuse it.(*) If one of several defendants plead a plea of bankruptcy at nisi prius, the plaintiff cannot confess such plea and go on with the trial as to the other defendants. (9) [Title of court.] D. ats. B. D. ats. B. Form of Plea in Banc. The The defendant, by day of A.D. his attorney, says, that after the last pleading in this action and before this day [here state the plea as the case may be.] [Title of court.] Plea at Nisi Prius. The day of A. D. And now at this day, before the Right Hon. Sir last pleading in this action, &c. comes his counsel, and says that after the (1)_ Kibblethwaite v. Reynolds, 7 Sc. 232; Dunn v. Loftus, 8 C. B. 76; 7 D. & L. 158. (2) Todd v. Emly, 1 Dowl. N. S. 598; 9 M. & W. 606. (3) Bartlett v. Leighton, 3 C. & P. 408; and the judge will allow it to be resworn, if sworn before a wrong officer. (*) Payne v. Shenstone, 4 D. & L. 396. (5) Myers v. Taylor, Ry. & M. 404; 2 C. & P. 306. (6) Corporation of Ludlow v. Tyler, 7 C. & P. 537; Abbott v. Rugeley, 2 Mod. 307. (1) Townsend v. Smith, 1 C. & K. 160. (8) Todd v. Emly, 1 Dowl. N. S. 598. () Pascall v. Horsley, 3 C. & P. 372. |