It is said, if oyer be not made in due time, i. e. after If oyer is dethe time for pleading expired, the plaintiff may consider manded after the demand as a nullity, and signjudgment. Tidd. 6 Ed. the time ex616. cites Fowler v. Dyer, M. 20 Geo. 3. This is in case time is not obtained.

pired.

Barn. 326.

ter of record

If a judgment or other matter of record in the same If a judgment court be pleaded, the party pleading it, must, on demand, or other matgive a note in writing of the term and number roll, in same court wherein such judgment or other matter of record is en- be pleaded. tered and filed, or in default thereof, the plea is not to be received. N. on R. T. 5 & 6 Geo. 2. Carth. 454. 1 Ld. Raym. 347. 550. 2 Str. 823. which states, that court made a rule to reject the plea, unless the term and number

roll is given. Hunter v. Wiseman. But if he plead a If of another judgment recovered in a different court, the plaintiff must court. reply nul tiel record.

If defendant demands oyer of an obligation, he shall If oyer of bond only. not have oyer of the condition, unless he demands that also. 6 Mod. Cas. 237.

But if he demands oyer of an indenture, which refers to If of an indenture. matter indorsed, it is not a complete oyer, if he has not oyer of the indorsement also. Ibid.

with recitals,

The defendant in an action of debt on bond, after crav- If the whole ing oyer of the bond and condition, set out in her plea the of the condicondition, omitting the reciting part preceding it. Motion tion of bond, to quash the plea:-Court. By craving oyer, the defen- be not set out dant undertook to set out in her plea the whole condition, after oyer, including the recital in so many words: and that not hav- plaintiff may ing done so, the plea was bad. That the plaintiff would sign judghave been warranted in signing judgment, as for want of ment, or court will quash a plea; and that though in this case, no time was gained plea. by the defendant's attempt, yet in most cases a false recital was made for the purpose of delay; and made rule absolute; refused also to let the defendant amend. Wallace v. the duchess of Cumberland, 4 Term Rep. 370. No trial had been lost.

book made up,

To debt on bond, after oyer, defendant set it out in plea If bond after truly, pleaded payment by the principal, he being a sure- oyer be set ty: plaintiff replied, and put the pleas in issue, and then out truly, and served defendant's attorney with a rule to abide by his and rule to pleas, and gave notice of trial: the defendant return- abide by the ed the paper book, setting out a false oyer of the bond plea be given, and pleadings as before, on which the plaintiffs inrolled and defendant the true condition, and demurred. On the day of argu- with a false plead anew ment, which was the last paper day of the term, the de- condition, fendant's counsel objected to its being argued, because it court will or

der plaintiff to was the last paper day. The court, on hearing the above sign judgment fact stated, directed an affidavit of them to be made, and and attach the made a rule nisi for striking out all the pleadings of deattorney.

If declaration

note, may have

fendant, that the plaintiff should have judgment, and that the defendant's attorney should pay all the costs, and were inclined to grant an attachment against him. Ferguson v. Macreth, Hil. 24 Geo. 3. 4 Term Rep. 371. n. b.

COPIES.

IF the action be founded on a written instrument not

be on a policy, under seal, oyer cannot be demanded. But if the deexchange, or claration be on a policy of assurance, bill of exchange, a summons to or promissory note, special agreement or undertaking in take a copy or writing, the judge will on a summons order a copy to be inspect same. given to the defendant's attorney; in which summons may be put, and that all proceedings in the mean time be staid, or the defendant's attorney may have a summons to be at liberty to inspect the same. With respect to actious on policies of assurance, see the stat. 19 Geo. 2. 37. s. 6. as to the giving sums assured and borrowed at respondentia or bottomree, for the voyage.

The general

rule.

C.

The rule laid down by Lord Mansfield upon this subject, was, that whenever the defendant would be entitled to discovery, he should have it here without going into equity. Barry v. Alexander, M. 25 Geo. 3. K. B.

Plaintiff may In this court the plaintiff may have a rule nisi for the have rule nisi defendant to produce a deed before the commissioners of the stamp office, to be stamped, and also to give the plaintiff a copy of it, that he may declare thereon. v. Stocks, M. 36 Geo. 3. K. B.

to produce a deed.

General issue

PLEADING IN BAR.

Cooke

IT has been already stated, that pleas in bar are of two how pleaded. sorts, general and special; the general issue, is either to be ingrossed in form on a four-penny stamp paper, and delivered over to the plaintiff's attorney within the time allowed by the rules of T. 1 Geo. 2. and 22 Geo. 3. (a) or it is to be entered in the general issue book, with the clerk of the judgments, who takes 6d.

The several

The general issues are as follow-In an action of general issues. assumpsit, non assumpsit; in debt, on simple contract, nil debet; in debt, on specialty, non est factum; in debt, on

(a) See the rules ante, 231, 232.

record, nul tiel record; in detinue, non detinet; and in trespass, vi et armis, and trespass on the case for wrongs done, not guilty. And where the general issue may, it ought in general to be pleaded, it being cause of demurrer, that the plea amounts to the general issue; and where the defence consists of matter of law, the defendant may either plead it specially, or give it in evidence under the general issue; as in assumpsit, infancy may be either pleaded or given in evidence on non assumpsit; and in debt on boud, the defendant may either plead coverture, or give it in evidence on non est factum.

In qui tam actions, and actions on penal statutes, the Qui tam acplea is not guilty, but a former recovery must be pleaded. tions.

Upon the general issue in assumpsit, the question is, On general whether there was a subsisting debt, or cause of action issue in asat the time of commencing the suit. But matter of law sumpsit, what is the quesin avoidance of the contract, or discharge of the action tion. are usually pleaded.

need no coun

No general issue needs a counsel's hand, nor need the What pleas following pleas: bankruptcy, 6 Term Rep. 196. compe- sel's hand. ruit ad diem to a bail-bond, son assault demesne, plene administravit by an executor or administrator, riens per discent nul tiel record to an action on a judgment or recognizance, per minas, solvit ad diem, 5 Term Rep. 661, ne unques executor, infra ætatem, Cook's case, 41. to which may be added a special non est factum in covenant, when the plea concludes to the country, and liberum tenementum in trespass, or not guilty to a new assignment. All pleas and demurrers upon writs of error, scire facias, and audita querela, ought also to be delivered, R. 12 W. 3. (a) to be delivered to plaintiff's attorney, ingrossed on a 4d. stamp paper; nor must these pleas be entered in the general issue book. See title Issue, as to making up issue on these pleas.

Before plea can be pleaded, bail must be perfected; for If plea be filed though it is filed previous to the perfecting bail, it does before bail not make it a good plea, for the defendant is not in court perfected, it is a nullity, extill the bail are perfected, and if such plea is filed or delicept a plea in vered before the bail are perfected, the plaintiff may abatement.

(a) The general issue, and plene administravit must be filed. Harrison v. Franco, 2 East 225, being a double plea. All double pleas must be filed, ib.

Declaration

sign judgment. Venn v. Calvert, 4 Term Rep. 578. Vide Cooke v. Raven, 1 Term Rep. 635. except a plea in abatement pleaded in a country cause.

Also before plea filed or delivered, the declaration must be taken must be taken out of the office, or plaintiff may sign a judgment.

out of office

before bill

filed, &c.

To be signed by counsel.

Clerk of the

papers to receive no special pleas or demurrers before signed.

No attorney to deliver any plea that ought to be filed.

Where a spe

plaintiff re

Pleading specially.

All special pleas must be signed by counsel or a serjeant, (except those before mentioned, ante 287.) and if such special plea be single, ingross same on a fourpenny stamp paper, put counsel's name at the foot, and file it with the clerk of the papers.

It is ordered, that no special pleas or demurrers in law shall be received by the clerk of the papers, before such pleas or demurrer in law shall be signed with the proper hand of some counsel in that behalf retained. R. T.18 Car. 2.

Ordered, that no attorney or clerk presume to deliver to any other attorney or clerk, or to any other person, or to receive from any attorney or clerk, or any other person, any special plea to be put into the office of the clerk of the papers, or a copy of such plea, before that such plea shall be put into the office of the clerk of the papers; and that such copy after such plea be put in shall be made by the clerk attending in the office of clerk of the papers, and signed under the hand of one of the clerks attending there. R. T. 2 W. and M.

Non assumpsit and statute of limitations pleaded, cial plea was which was delivered, plaintiff replied and made up the not filed, and issue, defendant's attorney paid for it; the plaintiff's at plied, he made torney finding the book ought to have been made up by up issue, and the clerk of the papers, paid him his fees, and proceeded paid clerk of to trial; no defence was made, and court held that defenthe papers, dant was in first fault in not leaving the pleas in the office, held good. Thomson v. Tiller, 2 Str. 1166.

Writ against

two, both

If the writ be against two, and both served before the return, one does not appear in the same term: yet the court will make him plead as of the term when he ought does not ap- to have appeared. Smith v. Muller, 3 Term Rep. 627.

served, one

pear, &c.

Of pleading double.

Any defendant in any action, or any plaintiff in reple- May plead as vin, in any court of record, with leave of the same court, many pleas as may plead as many several matters as he shall think ne- are necessary. cessary for his defence, provided that if any such matter shall, on demurrer joined, be judged insufficient, costs shall be given at the discretion of the court; or if a verdict shall be found upon any issue in the said cause, for plaintiff, costs shall be also given, in like manner; unless the judge who tried the said issue, shall certify, that the said defendant, or plaintiff in replevin, had a probable cause to plead such matter, which upon the said issue shall be found against him. Provided that nothing shall extend to any writ, declaration, or appeal of felony, &c. or to any writ, bill, action, or information upon any penal statute. Stat. 4 Ann. c. 16. s. 4, 5.

After the plea is drawn and signed by counsel, give him How to proa brief to move to plead the several matters specified, ceed after plea which he is to specify on the motion paper, or on the is drawn and back of the draft of the plea, which he signs of course; signed. fee 10s. 6d. If you are in time take the plea and brief to the clerk of the rules, who will draw up rule, pay 1s. 4d. per sheet, annex the copy to the plea, which is to be ingrossed on a 4d. stamp paper, then file same with the elerk of the papers. But sometimes it so happens, that there is not time sufficient to get the rule drawn up; in that case, leave the plea and brief at the clerk of the rules, who will draw it up, copy same, and serve it on plaintiff's attorney immediately.

V.

A. B. It is ordered that the defendant have leave to Rule to plead plead several matters, to wit, the general issue several matC. D.non assumpsit, the statute of limitations, and a ters in K. B. set-off (describing the pleas) upon the motion of Mr.

By the Court.

But if such plea and brief be not left before plea filed, If rule neplaintiff may sign judgment, for want of a plea. glected.

pleaded.

This court never refuse leave to plead several matters, If pleas be inprovided the pleas be not inconsistent, and liable to make consistent, an incongruity on the record, as non est factum, and a ten- may not be der to part. Jenkins v. Edwards, 5 Term Rep. 98. or non assumpsit to the whole, and tender to part. Maclellan v. Howard, 4 Term Rep. 194. Because, if the general issue

U