If the court will not amend the variance, the judgment must be one of failure of record. (1) Where the record pleaded has not been completed, this is no objection, and it may be completed after the plea of nul tiel record. (2) Where a plea in abatement is pleaded of another action pending for the same cause, it is sufficient to produce the record of a writ;(3) but an application has been made to the court, in which a præcipe only had been filed, to cancel the same.(*) Where a defendant takes a preliminary objection during the trial, he is entitled to the reply as at nisi prius. (5) The court will not allow the record to be impeached by affidavit; (6) and the party producing the record is entitled to judgment, though there may be cancellations in it.(7) So if the record show a reversal on error by consent. (®) Judgment.]-Judgment for the defendant is final, if nul tiel record was the only issue. Judgment for the plaintiff is interlocutory or final, according to the nature of the action, as in the case of a demurrer. (9) An incipitur on plain paper is taken to the proper officer who signs judgment; and if there be other issues to be tried by a jury, the jury will assess the damages on the interlocutory judgment. Costs.]-The costs are the same as on trials by jury. When the action is brought on a judgment recovered by the plaintiff, and he succeeds on an issue of nul tiel record, it requires a special order of the court or a judge to give him the costs.(10) 2. Pleading Judgment of another Court. When the judgment pleaded by the defendant has been recovered in another court, it must be proved at the trial (1) See where it was held there was no variance, Cocks v. Brewer, 11 M. & W. 51; 2 Dowl. N. S. 759; Phillips v. Smith, 2 Dowl. N. S. 688; see where a judgment of a County Court was pleaded and nothing produced, but a minute saying the cause was struck out, Tubby Y. Stanhope, 5 C. B. 790. (2) Cocks v. Brewer, 11 M. & W. 51. (3) Nash v. Swinburne, 4 Sc. N. R. 562. (4) Kerbey v. Siggers, 4 M. & Sc. 481; 2 Dowl. 813. (5) Hodgson v. Chetwynd, 3 D. & L. 45. Cocks v. Brewer, 11 M. & W. 51; 2 Dowl. N. S. 759. (8) Bailey v. Turner, 6 D. & L. 730. (9) See post, "Demurrer." (10) 43 Geo. 3, c. 46, s. 4; ante, p. 452. by the production of a transcript or exemplification of the record, and this is obtained by a writ of certiorari, directed to the chief judge or officer having the custody of the writ. (1) If the court, in which the record is, be a superior court, the certiorari is sued out from the Petty Bag office directed to the chief of the court, returnable in Chancery; whereupon an exemplification or transcript of the record is written on parchment and sealed with the seal of the Chancellor, and sent with a mittimus to the court in which the action is. If, however, the action is in the Queen's Bench, and the record is in the Common Pleas or Exchequer, a certiorari may also issue direct from the Queen's Bench in the first instance. (2) If the record is in an inferior court, the certiorari may be sued out either from the superior court in which the action is pending or out of the Petty Bag office. It is sufficient to return the tenor of the record without certifying the record itself. (3) Form of Writ of Certiorari from Q. B. to C. P. or Exch. VICTORIA, &c., to [the chief of the court] at Westminster, greeting: We being willing for certain causes to be certified of the proceedings in a plaint which was in our court before you and your companions, our justices of the bench [or you and others, the barons of our Exchequer] between A. B. and C. D., and of the judgment thereupon given in our said court as it is said, command you that* you send to us distinctly and openly, under your seal, a transcript of the proceedings and judgment aforesaid, with all things touching the same, together with this writ, so that we may have them before us at Westminster on Witness [chief justice] at Westminster, the the year of our Lord day of in Form of Writ of Certiorari from a Superior Court to an Inferior Court. [The writ being altered to suit the title of court down to.*] That having diligently searched and examined the rolls and other memorandums, and records of proceedings and judgments, in our said court, yon distinctly and openly certify to us at Westminster, on under your seal, the tenor of what you shall there find of the record and proceedings in the said plaint, and of the judgment aforesaid, &c. (1) Hewson v. Bunn, 2 Burr. 1034. (2) Tidd. 268. (3) Hambledon v. Lancashire 3 Salk. 296; see as to Petty Bag Office, 11 & 12 Vict. c. 94; 12 & 13 Vict. c. 109. 1. Demurrer generally. CHAPTER XXVII. DEMURRER. 2. Pleading and demurring together. 3. Form of demurrer. 4. Setting aside. 5. Withdrawing. 6. Joinder in demurrer. 7. Issues in law and in fact. 8. Demurrer book. 9. Setting down demurrer and argument. 10. Amendment. 11. Judgment. 1. Demurrer generally.]—A demurrer is a pleading which denies that a particular inference of law arises out of certain given facts; and accordingly it admits the facts from which the law is inferred. (1) "Either party may object by demurrer to the pleading of the opposite party, on the ground that such pleading does not set forth sufficient ground of action, defence, or reply, as the case may be; and where issue is joined on such demurrer, the court shall proceed and give judgment according as the very right of the case and matter in law shall appear unto them, without regarding any imperfection, omission, defect in, or lack of form, and no judgment shall be arrested, stayed, or reversed for any such imperfection, omission, defect in, or lack of form."(2) "No pleading shall be deemed insufficient for any defect, which could heretofore only be objected to by special demurrer."(3) If a pleading, such as a plea, is clearly bad, and in violation of the rules of pleading, (1) Co. Litt. 71 b.; Lord Brougham defines a demurrer thus: "Be it so, what then?" (2) C. L. P. Act, 1852, s. 50. (3) lbid. s. 51. the opposite party is not bound to demur, but may apply to set the plea aside (1) 1. Pleading and demurring together to the same matter.] -"Either party may, by leave of the court or a judge, plead and demur to the same pleading at the same time, upon an affidavit by such party or his attorney, if required by the court or 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, 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."(2) It is entirely in the discretion of the judge to allow a party to plead and demur together, however unexceptionable the affidavit may be.(3) An affidavit that the allegations of fact proposed to be traversed are untrue may be required, especially if the facts are within the party's own knowledge.(*) An affidavit may be sufficient, which merely states that the party is "advised and believed" damage was caused, especially when law is mixed up with facts; as where, in an action for damage caused by the defendant's fraudulent representation, the latter pleaded "not guilty," and a traverse of the fact that the plaintiff confided in such representation. (5) Where, after leave to a party to plead and demur, judgment has been given against such party on the demurrer, the court will not strike out the order allowing him to traverse.(*) 2. Form of demurrer.]—"The form of a demurrer, except in cases herein specifically provided for, shall be as follows, or to the like effect: "The defendant, by his attorney [or in person, &c., or plaintiff'], says that the declaration [or plea] is bad in substance." (1) Robeson v. Ellis, 5 D. & L. 403. () Sheehy v. Professional Life Assurance Company, 13 C. B. "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, and leave may be given to sign judgment as for want of a plea; and the form of a joinder in demurrer shall be as follows, or to a like effect: "The plaintiff [or defendant] says that the declaration [or plea, &c.] is good in substance."(1) The matter of law stated in the margin of the demurrer must be substantial, otherwise it may be set aside. One substantial ground only need be stated; (2) and if several are stated, the party may rely on any of them.(3) If the same objection applies to several pleas, it is enough to say that the subsequent plea is bad for the like causes and grounds stated in respect of the first plea.(') 3. Setting aside demurrer.]—If there is no marginal note, the court or judge will set it aside as above stated; so if the demurrer is frivolous. (5) The application must be made before joining in demurrer. () Where the application is made to the court, an affidavit is generally necessary, annexing a copy of the pleadings, or, if they are long, stating the substance of them.(7) When a demurrer of the defendant's is set aside as frivolous, leave may be given to sign judgment on the whole record as for want of a plea, though there are other counts or replications unaffected by the demurrer.(*) (1) C. L. P. Act, 1852, s. 89. (2) Ross v. Robeson, 3 Dowl. 779; 1 Gale, 102. (3) Whitmore v. Nichols, 5 Dowl. 521. (4) Braham v. Watkins, 16 M. & W. 77. (5) It is impossible to define what is a frivolous demurrer, but the motion to set aside demurrers on that ground has been made successfully in the following recent cases: Nash v. Calder, 5 C. B. 177; Lomax v. Wilson, 3 C. B. 763; Wilcox v. Haswell, 6 C. B. 72; Heginbotham v. South Eastern Railway Company, 8 C. B. 338; Braithwaite v. Harrison, 1 D. & L. 210; unsuccessfully in Bather v. Brayne, 7 C. B. 815; White v. Woodward, 4 C. B. 752; Smith v. Whatley, 1 D. & L. 196. (6) Norton v. Macintosh, 7 Dowl. 529. (7) Hamer v. Anderton, 9 Dowl. 119; Daniels v. Lewis, 1 Dowl. N. S. 542; Lane v. Ridley, 10 Q. B. 479. (8) Tucker v. Barnesley, 16 M. & W. 54; 4 D. & L. 292. |