How to proceed.

When to plead.

Vacation time.

In case of a

dilatory plea or frivolous demurrer, the court will or

der defendant to stand by it, or plead instanter.

If he plead a new plea, it can only be the general issue, and a set-off.

OF MOVING TO ABIDE BY PLEA.

IF the defendant plead a special plea, as a judgment recovered in another court for the same cause, or such a plea as you think he will not abide by, you may move the court for him to stand by such plea, or plead such other instanter as he will stand by, the latter is done by motion in court; if to plead on the morrow, then by a counsel's hand being signed; take the latter to the clerk of the rules, (the former is handed up in court,) in either case he draws up the rule, pay him 7s., - counsel 10s. 6d.; make copy and leave it with the defendant's attorney, or at his house.

When the court doth order one to plead forthwith, he shall plead in such convenient time after as the court shall judge reasonable; but if it be instanter, then he must plead the same day, 2 Lill. P. R. 372. It is now settled to be within 24 hours after rule served. Price v. Hodgson, E. T. 35 Geo. 3.

A judge at his chamber, in vacation time, may make an order, that the defendant shall plead such a plea as he will stand by. 2 Burr. 781. Foster v. Shaw.

If it be towards the end of the term (that the plaintiff may have sufficient time to give notice of trial,) the court will order the defendant, if he will not abide by his plea, to plead another instantly, provided always that the time allowed by the common rule to plead be expired: and the practice is the same with regard to frivolous demurrers. N. on Rule, T. 5 & 6 Geo. 2. 2 Salk. 515.

If a plea has been pleaded, and the plaintiff obtains a rule or order of a judge, that he plead such other as the defendant will abide by, the defendant may either stand by the plea pleaded, or plead such other within the time limited by such rule or order, but he can only plead the general issue and a notice of set-off after such rule or order. Hare v. Lloyd, 1 Term Rep. 693. Cochran v. Robertson. S. P.

practice, and suffered plaintiff to sign judgment, and ordered the attorney to pay all costs. Blewitt v. Marsden, 10 East, 237.

The costs of this motion are allowed, whether the de- Costs. fendant plead a-new or not. I have this from the mas

ter.

If the defendant abides by his plea, and takes no notice If he abides by of the rule served, the plaintiff must then proceed to re- plea. ply, and not sign judgment. Webb v. Holt, 2 Str. 1234.

Of striking out special Plea, waiving and adding Pleas.

When the paper book is delivered to defendant's at- When he may torney, he may, (unless he has pleaded a new plea,) with- strike out plea. in the time limited by the rule for the return, strike out the special plea, and plead the general issue; or, if the defendant demur specially, and the book be made up, he may, within the time, strike that out, and plead the general issue. 2 Salk. 514.

issue or gene

The defendant cannot waive the general issue, and in- Cannot waive stead thereof give a special plea or demurrer, nor can he the general waive a general demurrer, and give a special demurrer ral demurrer, or special plea. N. on R. T. 5 & 6 Geo. 2. 2 Str. 960. Law v. Law. But if a special plea or special demurrer he may. But if special. be given in, and the book is made up, and delivered to the defendant's attorney, he may strike out the special plea or demurrer, and return it with the general issue, or general demurrer. Ibid. And though he is tied down And may deby a rule of court, or an order to plead issuably, and mur to the take short notice of trial, and the plaintiff replies, yet he replication, may demur to the replication, if there is good cause,

without breach of the rule or order, but not otherwise. Str. 1185. Dewey v. Sopp.

But if the general issue be plead by mistake, the court, If general issue on affidavit of facts, will permit defendant to withdraw be pleaded by it, and plead a justification. 1 Wils. 254. So in C. P. Barn. mistake. 346. 2 Wils. 204.

tice of set-off.

If the general issue be pleaded by mistake, without a If without nonotice of set-off, the court will give leave to withdraw such plea, and order it to be delivered again with the notice of set-off. 2 Str. 1267. Blackburn v. Matthias. Leave has been given to add a plea after issue joined, A plea may though two terms have elapsed. I Wils. 223. Waters v. with leave be

Bovell.

added.

It seems there have been many instances of leave being If plea be given to withdraw plea pleaded, and replead with a withdrawn. justification, where the court can prevent the plaintiff

Stat. of gaming.

General issue waived and allowed to

plead double.

Plea waived

after joinder

in demurrer.

from suffering any inconvenience by it, as by obliging the defendant to take short notice of trial, and in case there be a verdict for the plaintiff to let him have judgment of the term. Per Cur. Taylor v. Joddrell, 1 Wils. 254.

Leave was given to withdraw non est factum, and to plead the statute of gaming, the attorney conceiving the statute might be given in evidence on the non est factum. Jeffereys v. Walter, 1 Wills. 177.

Nil debet pleaded, and after demurrer, leave was given to withdraw it, and plead it again with a special plea. Meard v. Phillips, 2 Sir. 906.

Nil debet pleaded to a bond for performance of covenants after joinder in demurrer, on defendant's consenting to put plaintiff in same condition as if he had pleaded right at first, court permitted him to waive his plea, and plead performance of covenants. Herbert v. Griffiths, 2 Str. 1181.

Replication A replication was permitted to be withdrawn, and permitted to be withdrawn leave given to reply de novo after six terms elapsed; the after six terms. case was, that the plaintiff had (by mistake of former attorney) traversed a lease under which he himself claimed. Alder v. Chip, 2 Burr. 755. This was considered as an amendment to prevent the defacing and obliterating the roll.

After volun

But court refused, after a voluntary nonsuit, to give tary nonsuit. plaintiff leave to reply de novo, that a latitat issued within six years. Hutchinson v. Price, 5 Burr. 2692, For more, see title Amendment.

No time fixed

&c.

REPLICATION.

How to compel Plaintiff to reply, &c.

time

THERE is no time fixed upon for replying to the plea, for replying, &c. the party who is to do the act applies to the master for a special rule for that purpose, and if the plaintiff does not file his replication, &c. within the limited, which is four days exclusive after the service of the rule, judgment of nonpros may be signed without a demand made of such replication, &c. as the service of the rule is deemed a demand of itself.

If defendant neglect.

If the defendant on the other hand neglect to rejoin or

REPLICATION.

rebut, when served with the rule, the plaintiff may sign his judgment on the expiration of the rule,

343

So if plaintiff does not surrejoin or surrebut within the So if plaintiff neglect. time limited, the defendant may sign judgment of non

pros.

Sunday, on which day the court doth not sit, if it be Sunday, &c. not the last of those four days, is to be reckoned a day

within those rules.

reply.

To compel the party to reply, &c. get a rule from the To compel master entered on the back of your last proceeding, viz. plaintiff to plea, replication, &c. take same to the clerk of the rules, whose clerk enters it and marks same, entered, pay 3s. then serve copy on plaintiff's attorney, naming the cause, thus: "Doe v. Roe, Saturday, next after, &c. to reply, "entered." If the replication, &c. is not filed or delivered, as the case happens (if special, at the clerk of the papers, if to a general plea, to the atttorney,) then when rule is expired, sign judgment of nonpros; for which see title Nonpros.

If a cause has continued four terms without prosecu- If four terms tion before issue joined, each party shall have a term's elapsed.. notice to reply, rejoin, &c. unless the cause hath been staid by injunction or privilege; and such notice must

be given before the essoign day. 2 Str. 1164.

And such notice should be, that you intend to proceed, Notice after after the end of the ensuing term, by giving a rule to the end of the reply in this case the rule is to be given by the master ensuing term. the day after the term is expired, and to be entered with the clerk of the rules, before service.

Rule to reply, rejoin, &c. may be given at any time in When rule term time, or within sixteen days after the term.

may be given.

A replication was, by leave of the court, withdrawn Withdrawing replication. six terms after filed. 2 Burr. 756. Alder v. Chip.

If you want time to reply, &c. you may have a sum- Time. mous for that purpose.

Proceed in the same way to urge defendant to rejoin, Rejoin. plaintiff to surrejoin, and so on, until issue be joined.

If defendant does not rejoin, the plaintiff may strike If defendant out the previous pleadings, and enter judgment as for does not rewant of a plea; for it is considered as an abandonment of the plea. Petrie v. Fitzroy, 5 Term Rep. 152.

join.

exclusive.

The case of Thomson v. Rial, 4 Term Rep. 195. Four days stated in Sell. 369. is on a paper book, and not on a

rule to reply. The four days to reply, &c. is four days exclusive, and judgment cannot be signed till the afternoon of the fifth day after the rule served; as if served on the sixth, judgment cannot be signed till the ilth, in the afternoon.

PAPER BOOKS.

Definition,

When the

said to be

PAPER Books are the issues in law upon special plead, ings, made up by the clerk of the papers, who is an officer appointed by the court for that purpose. And such clerk, in all copies of pleas and paper books by him made up, shall subscribe to such paper books the names of counsel who have signed such plea, as well on the behalf of the plaintiff, as of the defendant; and that in all books to be delivered to the justices of this court, the names of the counsel who shall sign those pleadings, as well on the part of the plaintiff, as on the part of the defendant, shall be written under those books by the clerks or attornies who shall deliver those books. R. E. 18 C. 2.

In case of special pleading, the book must be deliverissue shall be ed to the defendant's attorney, and if returned, then, and not before, the issue upon the pleadings is joined; for then both parties are agreed on the determination of the matter in question. Vide 2 Lill. Pract. Reg. 113.

joined.

Paper days.

In what cases paper book may be made up, without giving a rule to rejoin.

As to costs, if defendant

does not re

In what cases the attornies may make up the issue, vide title Issue.

Tuesdays and Fridays are called special paper days because the court goes into the paper, before they enter upon motions.

In all special pleadings where the plaintiff takes issue upon the defendant's pleading, or traverseth the same, or demurs, so as the defendant is not let in to allege any new matter, there the plaintiff may make up the paper book without giving a rule with the secondary to rejoin, otherwise a rule must be given. (a) N. on Rule Trin. 1 Geo. 2.

Where the clerk of the papers made up the book on

(a) Unless the defendant be bound, by a judge's order, to rejoin gratis.