thus," and the said defendant C. D., sued by the name of E. D., by" &c. In Anonymous, 7 D & R. 511, it was held, that a mistake in stating the defendant's christian name in the commencement of a plea docs not entitle the plaintiff to sign judgment as for want of a plea.

(e) Actionem non.-Precludi non.-- Prayer of Judgment.-"In a plea or subsequent pleading, intended to be pleaded in bar of the whole action generally, it shall not be necessary to use any allegation of actionem, non, or to the like effect, or any prayer of judgment:"-" and all pleas, &c. pleaded without such formal parts as aforesaid, shall be taken, unless otherwise expressed, as pleaded in bar of the whole action:' "provided that nothing herein contained shall extend to cases where an estoppel is pleaded."-Rules on Pl. Hil. T. 1834. See post, Appendix, and notes. In Bird v. Higginson, 1 Harr. & W. Rep 61, there was a special plea to the whole of one of several counts contained in the declaration, and the allegation of actionem non and the prayer of judgment were omitted. The plaintiff demurred specially on these accounts. The Court of King's Pench held that the plea was good; Lord Denman, C. J. observing, in giving judgment, that "the question was, whether the expression, the whole action generally,' in the new Rules, meant the whole case stated, or only the whole case contained in the count; and that the court thought the latter was the true construction." In Sharman v. Stevenson, 1 Gale, 74; 2 C. M. & R. 75, S. C., a plea of payment into Court commencing as a plea "to £ parcel of the monies mentioned in the declaration," but concluding without a prayer of judgment, was held bad on special demurrer. In that case the defendant, in omitting the prayer of judgment, departed from the form prescribed by the judges in the case of a plea of payment of money into Court. It seems, however, that in all cases there must be the allegation of actio. non and the prayer of judgment, where the plea or rejoinder is confined to part of one count or to part of several counts, and is not pleaded to the achole of one count or to the whole of several counts,

(f) Conclusion of Plea -The doctrine is, that a plea must conclude either to the country, or (to the Court) with a verification. And the New Rules on Pleading have not altered the law upon this subject; Knowles v. Stevens, 1 C. M. & R. 26; except in regard to the provision, Rule 13, that "special traverses, or traverses with an inducement of affirmative matter, shall

conclude to the country." The distinction see us to be, that a plea merely in denial of the whole or a part of the plaintiff's allegation, whether such allegation be the affirmative or negative, shall conclude to the country, because the plaintiff can have nothing further to advance in reply to such a plea, and it is a rule that if issue be well tendered in substance and form, the opponent must accept or join in it; steph. 3d ed. 236, 237; but where the plea confesses the plaintiff's case as alleged, but avoids it by the introduction of new matter, (where it is in confession and avoidance), the plea must conclude with a verification, in order that the plaintiff may, at his election, in reply either deny the new matter, or admitting it, obviate its effect by an additional statement; see Com. Dig. Pleader, E. 28, 32, 33; Co. Lit. 303 a; Finch. Law. 359; 1 Saund. 103, note 1, a, note 3; Calvert v. Gordon, 7 B. & C. 809. It is laid down that no verification is in general necessary in a negative pleading; Com. Dig. I leader, E. 33; Miller r. Crowdall, I Show. 338; Steph. 3d ed 436, cites Co. Lit. 303. In Millner v. Crowdall, the defendant pleaded in an action on an attor ney's bill, that no signed bill had been delivered before action, according to the statute, without concluding his plea with a verification, or otherwise; and on deinurrer for this omission, the Court overruled the objection, "it being a negative plea And in Obin v. Knott, Fortesc. 339, and Fanshaw v. Morrison, 2 Salk. 520, it was held that a plea of nul tiel record need not be averred. Where matter of record in this country, Collins v. Lord Matthews, 5 East, 473; Harris v. Saunders, 4 B. & C. 411; is pleaded, the plea should conclude with a verification "by the record;" as matter of record to be decided by the record cannot be determined by a jury. But where a matter of record is pleaded with facts properly referable to a jury, and such matter and facts conjointly constitute the party's case, the verification should not be by the record; Com. Dig. Pleader, E. 29, 32; Rowles v. Lusty, 1 M. & P. 102, 114; 4 Bing. 428, S. C.; see Lucas v. Nockells, 4 Ping. 729.

(g) Signature of Counsel.-Py Rule Hil. T. 2 W. 4, reg 107, "it shall not be necessary that any pleadings which conclude to the country be signed by counsel." In general pleadings concluding with a verification (as well as general or special demurrers, see post, 28, note (c)) must be signed by a serjeant or other counsel, otherwise, at the expiration of the time for pleading, but not before, see Macher v. Billing, 1 C. M. & R. 577, the plaintiff may

In the

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treat the plea as a nullity, and sign judgment by default; R. E. 18 Car. 2; Hockley v. Sutton, 2 Dowl. P. C. 700. And the plaintiff may sign judgment in toto, if there be one special plea requiring signature confined to part of the declaration, although there be other pleas, not requiring signature, to the residue of the declaration; Macher v. Billing, 3 Dowl. P. C. 246. There are certain common pleas which are considered not to require signature, although they conclude with a verification; as in K. B., and semble in the Exchequer, pleas of comperuit ad diem, infancy, liberum tenementum, ne unques executor or administrator, nul tiel record to debt on judgment or a recognizance of bail, per minas, plene administravit, riens per descent, solvit ad diem, son assault demesne; Tidd, 9th ed. 671; 1 Chit. Arch. 4th ed. 247; Imp. K. B. 8th ed. 287. In C.P it seems these pleas, except comperuit ad diem and solvit ad diem, should be signed; Tidd, 9th ed. 672. A plea of the Statute of Limitations must in either of the Courts be signed by counsel; Macher v. Billing, 1 C. M. & R. 577. The common plea of defendant's bankruptcy does not require counsel's signature, because it concludes to the country.

(h) Replications.-It shall not be necessary in any replication or subsequent pleading intended to be pleaded in maintenance of the whole action to use any allegation of precludi non,' or to the like ef fect, or any prayer of judgment; and all replications and subsequent pleadings pleaded without such formal parts as aforesaid, shall be taken, unless otherwise expressed, as pleaded respectively in maintenance of the whole action." The effect of the rule is to render the precludi non and prayer of judgment unnecessary, where the replication applies to a plea pleaded either to the whale declaration, or to the whole of one

count, or the whole of several counts; but it is considered necessary to retain these formula where the plaintiff replies to a plea which is pleaded to part only of one count, or to parts only of several counts; see ante, 20, note (e), and the notes on the New Rules, in the Appendix.

(i) The general rule as to a pleading concluding to the country, or with a verification, has been before noticed, ante, 20, note (f). Where the replication puts in issue the whole substance of the defendant's plea, it may conclude to the country, and need not conclude with a verification. Thus, in Darbishire v. Butler, 5 Moor, 198, to debt on bond, the defendant craved oyer, and after reciting a mortgage deed, which showed the condition to be for payment of a sum on a specified day, according to the tenor of a proviso in the indenture, and for the performance of the covenants therein, pleaded that there were no negative or disjunctive covenants in the deed, and that he paid the money mentioned in the condition on the prescribed day, according to the effect thereof, and performed all the covenants and provisoes in the indenture on his part to be performed. The replication denied the payment of the money, and concluded to the country; and it was held good on special demurrer, as the substance of the plea was the payment of the money, which the plaintiff denied; and see Turner v. M'Namara, 2 Chit. R. 697, But in the case of a bond conditioned that a clerk, &c. should account for and pay over moneys, to a general plea of performance, the plaintiff's replication showing the receipt of particular sums, &c. and not accounting for them, should conclude with a verification; Cornwallis v. Savery, 2 Burr. 774; Vere v. Smith, 2 Lev. 5; Vent. 121, S. C.; and see Sayre v. Minns, Cowp. 575; but see Rayman v. Gerrard, I Saund,

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The defendant, by

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102. So, in the case of a plea of non damnificatus to a bond conditioned to indemnify the plaintiff against certain acts, a replication showing in what particulars the plaintiff has been injured, should conclude with a verification; see Steph. 3d ed. 234. In these latter instances the plaintiff did not simply deny any specific fact stated in the plea, but in reply to the general form of the plea, detailed and relied on particular circumstances; and it was proper that the defendant should have the option of denying, or confessing and avoiding the special facts alleged In the ordinary case of a plea to an action on a bill, denying that the plaintiff gave value, he may reply generally that he gave value, or that there was a consideration, and conclude to the country; for such replication traverses the substance of the plea, and the defendant can have no new matter to rejoin. "In all cases where the replication or rejoinder concludes to the country, the plaintiff's attorney may give notice of trial at the time of delivering his replication or other subsequent pleading; and in case issue shall afterwards be joined, such notice shall be available; but if issue be not joined on such replication or other subsequent pleading, and the plaintiff shall sign jud ment for want thereof, and forthwith give notice of executing a writ of inquiry, such notice shall operate from the time that notice of trial was given as aforesaid;" Rule Hil. T. 2 W. 4, r. 59. When the replication concludes with a verification, there should be a rule to rejoin; which is given on the back of the replication by the master in the K. B., or in the C. P. by one of the prothonotaries. A rule to rejoin, how ever, is not necessary where the defendant is under terms to rejoin gratis, and in such case the defendant must rejoin within twenty-four hours after the delivery of the replication and a demand of rejoinder; Tidd, 9th ed. 472; 1 Chit. Arch. 240. "And in all special pleadings where the

plaintiff takes issue on the defendant's pleading, or traverses the same, or demurs, so that the defendant is not let in to allege any new matter, the plaintiff may proceed without giving a rule to rejoin,” Rule Hil. T. 2 W. 4, r. 108; that is, if the defendant's pleading concludes to the country, the plaintiff may add the similiter; or the plaintiff, if his own pleadings conclude to the country, may add the similiter (" and the defendant doth the like") for him, and may then proceed to make up the issue, and the plaintiff in so making up the issue may add the similiter before he delivers it to the defendant's attorney or agent, and without delivering it at any time, independently of the issue. A demand by the plaintiff's attorney of a rejoinder or other pleading on the part of the defendant, is requisite before judgment can be signed against him, unless he be expressly under terms to rejoin without such a demand; Tidd, 9th ed. 478; Rule Hil. T. 2 W. 4, r. 108; Wye v. Fisher, 3 B. & P. 443, 1 Chit. Arch. 257, 4th ed. Being under terms to rejoin gratis does not, it seems, dispense with this demand; id. 240, 257; Seaton v. Skey, 3 Dowl. P. C. 537; see S. C. 1 Harr. & W. 210, from which it appears the rejoinder was demanded. The demand, when given, expires in twentyfour hours. If the defendant, after demand, omit to rejoin, the plaintiff may sign judgment, although the replication conclude to the country, and the defendant was under terms to rejoin gratis, so that the plaintiff might have added the similiter for him; but in case such sharp practice is resorted to, it seems the Court will set aside the judgment without costs; Seaton t. Scales, Har. & W. 210, by Wil. liams, J. upon the authority of Wye v. Fisher, 3 B. & P. 443: but Seaton v. Scale is differently reported, by the name of Seaton v. Skey, in 3 Dowl. P. C. 537. If the replication conclude to the country with an “&c." although no similiter be added in