Costs. No advantag can be taken permission to allow the plea so filed. Doe dem. Morton v. Roe, 10 East. 523. As pleas in abatement enter not into the merits of the cause, but are dilatory, the law has laid the following restrictions on them; 1st, by 4 & 5 Ann. c. 16, "No dila"tory plea shall be received, unless the party by affi"davit prove the truth thereof, or shew some probable "matter to induce the court to believe that it is true." 2d, That no plea in abatement shall be received after a respondeas ouster, for then they would be in infinitum. 2 Saund. 41. 3d, That they are to be pleaded before imparlance, except where the declaration is delivered too late. 4th, That where the judgment prayed goes to the writ, there it is ut respondeas ouster: but where it goes to the action, it is quod recuperet. Gilb. C. P. 53. And therefore the jury ought to assess the damages, because the defendant chusing to put the whole weight of his cause upon this issue, where he might have had a plea in chief, is an admittance that he had no other defence. 10 Mod. 112. An affidavit is necessary wherever you plead to the jurisdiction. 2 Lord Raym. 1418. If there be a demurrer to a plea in abatement, there shall be a respondeas ouster, because every man shall not be presumed to know the matter of law, which he leaves to the judgment of the court. Bowen, one, &c. v. Shapcott, 1 East. 542. See 2 Wilson, 367. S. P. In this case it is in the discretion of the court to give the defendant time to plead. Comb. 19. After a judgment of respondeas ouster, it is said, there can be no plea in abatement. Gilb. C. P. 186. But this must be understood of pleas in abatement in the same degree, as popish recusancy and outlawry, being both to for the defendant may plead to the person of person; the plaintiff, and if that be over-ruled, he may afterwards plead to the form of the writ. Com. Dig. 66. title Abatement. the On an issue in fact, the defendant is entitled to costs, but not on an issue in law. 2 Ld. Ray. 992. 1 Salk. 194. S. C. On a plea in abatement no advantage can be taken of the errors in the declaration; for nothing but the writ is of declaration. then in question, and nothing else is pleaded to. Carth. 172. 3 Lev. 361. Cannot plead If a defendant has forfeited his bail-bond, and proceedin abatement ings be stayed at his request, he cannot afterwards plead if proceedings in abatement to the original action, but must plead in be stayed on chief. Salk. 519. be cancelled bond. And the court will refuse to order a bail-bond to be Court will not cancelled on an affidavit of defendant, that he was not order bond to the person; but will leave him to plead in abatement. if defendant As where the action was, Salter qui tam v. Sherfold, de- be taken by fendant entered into the bail-bond by the name of Wil- wrong name. liams, which was in his right name, then moved to have the bond cancelled as above, which was denied. 3 Term Rep. 572. On a respondeas ouster, no notice need be given of it, Respondeas for the defendant is supposed to be attending his cause ouster. to maintain his plea. Salk. 7. The plea must give his surname, as well as his true Surname as christian name, although his true surname be named in the well as chrisdeclaration. Hayworth v. Spraggs, 8 Term Rep. 515. tian name. If the defendant omits to plead a misnomer in his right Wrong name. name, he may be taken in execution by his wrong name. Str. 1218. Crawford v. Satchell. Sed qu. 8 East. 328. Shadget v. Clipson. Cannot plead two dilatory A defendant cannot plead two dilatory pleas. amended. Cannot amend plea in abateA plea in abatement must be signed in court, and ment. filed with the clerk of the papers; and without an affidavit A plea in annexed to it, judgment may be signed. abatement must be sign ed. a cassetur billa. If the defendant plead in abatement of his surname, or christian name, the plaintiff may have a summons to May amend declaration. amend his declaration, upon payment of costs, which saves the entry of a cassetur billa; but if the plaintiff How to enter thinks proper to enter a cassetur billa, then it is to be done thus: get a roll, enter a memorandum of the term the declaration is delivered, and the plea at the foot thereof; (then say) and thereupon the said T. W. says, cassetur billa that he cannot deny the said exception of the said J. R. above by his plea taken to his said bill, but admits the same to be true; therefore it is considered by the court of our said lord the king, before the king himself here, that the said bill of the said T. W. be quashed, &c. The roll is to be taken to the clerk of the judgments and docketed, pay 4d. per sheet, and the master marks the cassetur billa thereon, when the entries are paid for; it is filed with the clerk of the treasury; then proceed anew. Judgment of The court cannot hold too strict a hand over this sort of pleadings, which are calculated to defeat the justice of the case; if the plea be drawn correctly, the court cannot deprive the defendant of the benefit of it. But if there be the least inaccuracy in it, it cannot be supported. Roberts v. Moon, 5 Term Rep. 488. If the defendant pleads, and the said Richard sued by the name of Robert, it is bad. OYER. IF the plaintiff sets forth in his declaration a profert in curia of a deed, writing, letters of administration or the like, the defendant may pray oyer, and must have a copy delivered him that he may consider what he is to plead. So likewise, if the defendant in his plea makes a profert in curia of any deed, &c. the plaintiff may make the like demand of oyer, and have a copy delivered to him, paying for the same after the rate of four-pence per sheet. 2 Sulk. 497. 5 & 6 Geo. 2. (b) K. B. As oyer of deeds is demandable by either party, the party of whom the oyer is demanded, is bound to carry it to the adverse party. 2 Term Rep. 40. Page v. Divinė and others. So if plaintiff sets forth letters of administration, the defendant may pray oyer. 2 Wils. 413. But oyer of a record is never granted. 1 Term Rep· 149. Rex v. Amery. The defendant was formerly allowed oyer of the original writ, in order to demur or plead in abatement for any apparent insufficiency, or variance. But this indulgence having been abused, and made an instrument of delay, a rule was made, that the defendant be not allowed oyer of an original writ, and that if he demanded it the plaintiff may proceed as if no demand had been made. R. T. 19 Geo. 3. Dougl. 227. 6 T. R. 363. There are cases in which the profert may be dispensed with, vide 3 Term Rep. 151.; and if a profert is made by mistake, the court will give leave to amend, and let the party in to plead according to the fact. Ibid. 153. contra. 2 Str. 1126. 1 Wils. 26. When to be demanded of Plaintiff. The demand of oyer is a kind of plea, and should re- When to be gularly be made before the time for pleading is expired. demanded. Rex v. Amery, 2 Term Rep. 150. 2 Bos. and P. 379. In this court, oyer may now be made after an imparlance. 12 Mod. 99. Ld. Ray. 970. 2 Lev. 142.; and I think after a judge's order obtained, previous to the expiration. must pay for a copy in term The party demanding oyer shall pay for a copy at the Party derate of 4d. per sheet; and if the defendant craves oyer of manding oyer any thing whereof he is entitled to oyer, and it is not delivered in time, he shall have so many days after the time. rule is out, as when he demanded oyer before the rule is out. Powell v. Gay, Str. 705. So the plaintiff shall have the same time to reply as he had at the time of demanding oyer. N. on R. T. 5 & 6 Geo. 2. cation, and The declaration was delivered in last Easter term, to Ifoyer be deplead within the four first days of Trinity term. The manded in vadefendant demanded oyer of the bond on the third day given before in Easter vacation, which was given the day before the the essoign of essoign of Trin. term. On the 5th day of Trin. term the next term. plaintiff signed judgment for want of plea; to set aside which, a motion was made. The court were of opinion the judgment was regular, that the general expression used in the books that the party has the same time to plead after oyer granted, as he had when it was demanded, must be understood to mean as much time in term time, as many pleading days, otherwise if oyer were demanded on the last day of Trinity term, and given the day before Mich. term, the defendant would not be obliged to plead, until the Easter term following. Webber v. Austin, 8 Term Rep. 356. Anciently oyer was demanded in court, but now it is Formerly demade by one attorney, of the other. 6 Mod. 28. (a) manded in court. Copy of the Upon oyer, the party is entitled to a copy of the whole deed, witnesses' names, and all memorandums subscribed whole deed, and indorsed upon it. Vide Barn. 263. So of the bond, &c. and condition. There is no settled time for the plaintiff to give oyer, No time fixed because it is in his own delay. But the defendant shall for plaintiff to give oyer. (a) 12 Mod. 598. 3 Salk. 119. 2 Lutw. 1644. contra. Within what time defendant must give oyer. As to the plaintiff's time to reply after oyer given. Sunday last day. Or deed in person. in all cases have the same time to plead, or as many pleading days after oyer given as he had at the time of demanding of it. 8 T. R. 356. And the defendant may either set forth the oyer in his plea or not, at his election. 2 Str. 1211. Weavers' Co. v. Forest. Ld. Ray. 969. Carth. 301. 1 Wils. 97. The time allowed for the defendant to give oyer to the plaintiff, is two days, exclusive after it is demanded. 2 T. K. 40. And if it be not given in that time the plaintiff may sign judgment, as for want of a plea. 6 Mod. 122. If given, the plaintiff shall have the same time to reply after oyer given him by the defendant, as he had at the time of demanding it. R. T. 5 & 6 Geo. 3. (b) K. B. Sunday in this case was the last day; therefore he had the whole of Monday to deliver oyer. Where the bond or deed is in the hands of a third hands of third person, the court on motion will oblige him to give oyer and produce it. Str. 1198. Sid. 50. So if it be in the hands of the defendant, when he can have no pretence to it. 3 Term Rep. 153. in notes. Matison v. Atkinson. If the deed be lost. See 2 Str. 1186. 1 Wils. 16. Demand of oyer by the defendants. Demand of oyer by the plaintiff. Judgment cannot be signed for nonpayment. In the King's Bench. A. B. V. C. D. The defendant demands oyer and copy of the indenture of lease, or articles of agreement, &c. in the declaration mentioned. Or (if the action be upon bond, say, of the writing obligatory and the condition thereof mentioned in the declaration in this cause). Yours, &c. G. H. defendant's attorney. To Mr. E. F. plaintiff's attorney or agent. In the King's Bench. A. B. V. C. D. The plaintiff demands oyer, and copy of the indenture of lease, &c. mentioned in the plea in this cause. Yours, &c. To Mr. G. H. defendant's attorney (or agent.) J. K., The oyer need not be ingrossed on stamped paper. The master says judgment cannot be signed for want of payment of copy. |