opposite party is entitled to withdraw his demurrer and plead afresh, at the expense of the party amending.(1) When leave to amend is given on payment of costs, such payment is a condition precedent. (3) 10. Judgment. The plaintiff may be nonsuited on the demurrer.(3) The court gives judgment according as the very right of the cause and matter in law shall appear to them, regardless of any defect in form.(*) A judgment for the plaintiff is interlocutory or final in the same circumstances as a judgment by default. (5) If the judgment on a single issue be for the defendant, it is a final judgment of nil capiat per breve, and if there are several pleas going to the whole cause of action, and the defendant has judgment on one, he may apply to the court to strike out the others on payment of costs. If there are issues of fact and law raised on the pleas, and the defendant succeed on any of the demurrers, and the plea goes to the whole cause of action, the plaintiff cannot have judgment on any issue of fact found for him;(6) but the judgment must be nil capiat per breve.(') The court has allowed issues of fact, with consent of the party succeeding on the demurrer, to be struck out, so that error may be brought, with liberty to replace the issues.(*) Where there are issues of fact and law, and the plaintiff has obtained judgment on the demurrer, this judgment is interlocutory, and the damages may be assessed on it at the trial, () or, if the issue in fact is distinct from that in law, he may enter a nolle prosequi as to the issues in fact, and sue out a writ of inquiry or reference as to the demurrer;(1) or he may discontinue, and he will still be entitled to his costs of the demurrer.(") () Metcalfe v. Booth, 7 D. & L. 15. (2) Levy v. Drew, 5 D. & L. 307. (3) Nesbit v. Rishton, 10 A. & E. 246. (4) C. L. P. Act, 1852, s. 50, ante, p. 896. See where a demurrer is too large, Slade v. Hawley, 13 M. & W. 757. (5) See post, "Judgment by Default." (6) Young v. Beck, 3 Dowl. 804. (7) Hinton v. Acraman, 3 C. B. 737. (*) Beckham v. Knight, 7 Sc. 346; 7 Dowl. 400; Carden V. General Cemetery Company, 7 Sc. 348; 7 Dowl. 425. (9) Gregory v. Duke of Brunswick, 6 M. & Gr. 953. (10) 1 Saund. 109 n. (1); Anon. 1 Salk. 210. Mayor of Macclesfield v. Gee, 13 M. & W. 470; 2 D. & L 418. He must discontinue the whole action and not merely the plea demurred to, Benton v. Polkinghorne, 16 M. & W. 8. After argument, and the opinions of the judges are delivered, obtain from the Master a peremptory rule that judgment be entered for the plaintiff or defendant, and serve a copy on the opposite attorney. An incipitur of the declaration is then made and taken with the rule, and the judgment will be stamped and costs taxed. If the judgment is interlocutory, a writ of inquiry or reference to the Master must be sued out as stated post, under those heads. 11. Costs. "Where judgment shall be given, either for or against a plaintiff or demandant, or for or against a defendant or tenant, upon any demurrer joined in any action whatever, the party in whose favour such judgment shall be given shall also have judgment to recover his costs in that behalf."(1) This right of the party succeeding on the demurrer is wholly independent of what may become of the issues of fact in the action, and the plaintiff is entitled to those costs, though he discontinue, (2) or recovers less than forty shillings at the trial, and obtains no certificate for costs, (3) or withdraws a juror,(^) or wholly fails.(3) And it seems the costs of the demurrer may be taxed and judgment signed before the trial of the issues in fact.(*) (1) 3 & 4 Will. 4, c. 42, s. 34. (2) Mayor of Macclesfield v. Gee, 13 M. & W. 470; Ellwood v. Bullock, 6 Q. B. 383. (3) Taylor v. Rolfe, 5 Q. B. 337; 1 D. & M. 229; Poole v. Grantham, 8 Sc. N. R. 722. (4) Bentley v. Dawes, 10 Exch. 347. (5) Gregory v. Duke of Brunswick, 3 C. B. 481. () Ibid.; Bentley v. Dawes, 10 Exch. 347. CHAPTER XXVIII. SPECIAL CASE.(1) Ir frequently happens that at the trial of issues of fact the parties find that the matters in dispute would be better decided by the court, and they agree to take a general verdict, subject to a special case, which is afterwards drawn up by counsel and argued before the court in banc.(*) The court will not allow a special case to be amended, by raising a point which the parties have not raised for their consideration. (3) The parties may also agree upon a special case without going to trial at all, provided there is no dispute as to points of fact. Power was given for this purpose by 3 & 4 Will 4, c. 42, s. 25; but that statute required the usual pleadings to have been proceeded with up to issue joined. Now no pleadings whatever are necessary, for "the parties may, after writ issued, and before judgment, by consent and order of a judge, state any question or questions of law in a special case for the opinion of the court without any pleadings."() The parties must, however, have a bona fide interest in the question of law.(5) Moreover, something must be claimed for which an action at law could be maintained by the one party against the other; thus, the court refused to hear a case, "whether a lord of a manor (See also post, "Arbitration." (2) See as to this ante, p. 358; see also post, "Arbitration." (3) Hills v. Hunt, 15 C. B. 1. (1) C. L. P. Act, 1852, s. 46. (5) Doe v. Duntze, 6 C. B. 100. was entitled to a treble fine on admittance," because the lord was not entitled to sue for a fine before admittance, and he had not admitted. (1) Consent of the parties as to costs, &c.]-Before applying for the judge's order, the parties should agree on the terms and the consequences to result from the judgment of the court. "The parties may, if they think fit, enter into an agreement in writing, which shall not be subject to any stamp duty, and which shall be embodied in the said or any subsequent (judge's) order, that upon the judgment of the court being given in the affirmative or negative of the question or questions of law raised by such special case, a sum of money fixed by the parties, or to be ascertained by the court, or in such manner as the court may direct, shall be paid by one of such parties to the other of them, either with or without costs of the action, and the judgment of the court may be entered for such sum as shall be so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed or unless stayed by proceedings in error."(2) The entry of the judgment is for the purpose of enabling the successful party to issue execution, or the unsuccessful party to bring error.(3) "In case no agreement shall be entered into as to the costs of such action, the costs shall follow the event, and be recovered by the successful party."(^) The agreement, as to the costs and result of the judgment, and whether error is to be brought, should be in the first instance settled between the parties, which may be in a form similar to that given ante, p. 441. The proposed plaintiff then issues the writ, and makes an affidavit,(5) and applies for a summons at the judge's chambers, which is served on the opposite attorney, who will indorse his consent to the order. The order is then served. The special case is signed by counsel or the party himself.(*) Lord Wellesley v. Withers, 4 E. & B. 750. (2) C. L. P. Act, 1852, s. 47. (3) Hughes v. Lumley, 4 E. & B. 274, 358; Elliott v. Bishop, 11 Exch. 321. (*) C. L. P. Act, 1852, s. 48. (5) See ante, p. 440. (6) Blanchardiere v. Elvery, 18 L. J. 381, Exch.; Price v. Quarrel, 12 A. & E. 784; Udney v. East India Company, 13 C. B. 742; ante, p. 358. The special case, when settled, may be set down for argument in the special paper, at the request of either party, four clear days before the day on which it is to be argued, and notice thereof must be given forthwith to the opposite party. It is argued like a demurrer.(1) Error may be brought upon the judgment, unless the parties have agreed to the contrary, and the court of error may give what judgment the court below ought to have given. (2) In a case where a plaintiff claimed two sums in the court below, and he was there held entitled to one sum only, but the court of error held he was entitled to both, the plaintiff was held entitled to costs in respect of the sum on which he failed in the court below.() Form of Special Case without Pleadings. In the Q. B. ["C. P." or "Exch. of Pleas."] Between A. B., plaintiff, and This is an action brought by the plaintiff against the defendant for the [state the object of the action shortly] and by the recovery of £ dated The questions for the opinion of the court are first, whether, &c. If the court shall be of opinion in the affirmative, then judgment shall be entered up for the plaintiff for £ and costs of suit. If the court shall be of opinion in the negative, then, &c. Form of Judgment for the Plaintiff on a Special Case when no agreement between the parties as to the sum to be paid beyond the agreement contained in the case itself.(*) [Copy the special case, and then proceed thus :]—Afterwards on come the parties aforesaid, by their respective attorneys aforesaid, and the court is of opinion that [fc., state the opinion of the court on the question or questions stated in the case.](5) Therefore it is (1) Rule Pr. 15, H. T, 1853; see ante, p. 902. (2) C. L. P. Act, 1854, s. 32. (3) Elliott v. Bishop, 11 Exch. 321. (4) Rule Pr. M. V. 1854, sched. (5) If an agreement was entered into between the parties, here insert a recital of such agreement. |