Leave to amend before trial of the issues, not after.

fendant's at

torney may enter the

as at common law; but after the cause has been tried, he cannot amend farther than is allowable by the statutes of amendments.

In the case of Sir F. Burdett v. Colman, and same v. Earl of Moira, 13 East, 27, there were issues in fact and in law, and the court on motion postponed the trial of the issues in fact, until after the argument on demurrer.

Where the demurrer is first argued, before any trial of the issues, the court will give leave to amend; but not after the verdict found on the issues upon facts, and contingent damages found upon the demurrers, of which there never was an instance. Mr. J. Denison, Robinson v. Rayley, 1 Burr. 322.

How to make up Demurrer Book on a Special Demurrer.

Deliver a copy of the declaration to the clerk of the papers on unstampt paper, who makes up the paper book, and gives a four day rule in the margin, to receive and return the book.

If defendant's attorney returns the book in time, then enter the proceedings on the roll. (See PAPER BOOK, tille How to proceed on the Return of the Book, and Demurrer filed.)

When Demurrer Book may be made up by the Defendant. It is ordered, that if any plaintiff here in court shall When the de- demur in law to any plea, rejoinder or rebutter, by any defendant here in court exhibited, and such defendant joins in such demurrer in law; that then the attorney for the plaintiff shall enter of record such demurrer in law, and in default thereof, upon a rule given by the secondary of this court, for entering of such demurrer in law, the attorney for the defendant shall enter of record such demurrer. R. E. 11 W. 3.

plaintiff's demurrer upon

record.

If plaintiff de- If the plaintiff demurs or takes issue on the defendant's murs or takes plea, rejoinder, or rebutter, and the defendant joins therein, issue on plea, and the plaintiff will not make up the book and enter it rejoinder, &c. and defendant on record (having made a default) then the defendant joins, how to may, pursuant to this rule, make up the book and enter proceed. it; and when he has made up same, deliver it to the plaintiff's attorney, because the plaintiff may perhaps enter the issue, as he has right to do, at any time before the expiration of the above-mentioned rule given by the secondary, which rule ought to be served on the plaintiff

at the same time the book is delivered to him. If the plaintiff does not enter the issue, the defendant may, at the expiration of the rule, and give notice of trial by proviso. N. on the above rule.

after default.

N. B. By the above rule, the book cannot be made up Defendant by the defendant until default made by the plaintiff; cannot make then make up the paper book, apply to the master for a up book till rule, which he gives on the book or on a separate piece of paper, that "unless the plaintiff enters the issue on "record on next after let the same be entered "on the part of the defendant" Enter it at the clerk of the rules, pay 3s. serve copy at the time you deliver the book.

If the plaintiff refuses to join in demurrer, get a rule If plaintiff refrom the master on the back of the demurrer, enter it fuse to join in demurrer. with the clerk of the rules, pay 3s. serve copy on plaintiff's attorney, and if he does not deliver it, if it be a general demurrer, or file it, if to a special demurrer, at the expiration of a rule, sign a nonpros.

OF THE TRIAL BY RECORD.

an action on

ceed.

To an action on the judgment brought in the same If a plea of court, and the defendant pleads nul tiel record, and the nul tiel record plaintiff replies, that there is such a record, on which a be pleaded to day is given to produce the record, the plaintiff's attorney the judgment will bespeak the roll if docqueted to be brought into brought in court that day, if not he will get the roll completely doc- same court, queted and filed, and have it ready in court that day to how to proproduce, which he may do, by applying to Mr. Edge, the clerk of the treasury, for that purpose, who will bring the roll into court, pay him 4s. 6d. You will give Mr. Edge the draft of the issue for the master to mark "that "the plaintiff hath produced the record." In the evening give a rule for judgment, which state to be, on an issue of nul tiel record, pay 3s. and after the expiration being four court days exclusive (Sunday is no day) sign judg ment, tax the costs, and take out execution.

in same court

Where a judgment, or other matter of record in the Where a same court is pleaded, and the plaintiff replies nul tiel judgment, &c. record, the party pleading, must on demand give a note is pleaded. in writing of the term and number roll whereon such judgment or matter of record is entered and filed, or in default thereof, the plea is not to be received. N. on Rule 5 and 6 Geo. 2. See Carth. Rep. 453, 517. for motion that the plea may be rejected, see 2 Stra. 823. S. P. Hunter v. Wiseman.

If action be brought in this court, on judgment in C. P.

Inferior court.

If an action be brought in this court, on a judgment recovered in the Common Pleas, and the defendant pleads nul tiel record, there must be a certiorari issue from this court, to the court of Common Pleas, to certify the record. 2 Burr. 1304. Hewson v. Brown.

So if debt be brought on a judgment in an inferior court and the like plea, a certiorari must issue to the proper County pala- officer of that court to certify. Bro. V. M. 244. If it be on a recovery in a county palatine there shall be a writ to the chamberlain to certify. Clift's En. 148.

tine.

ISSUE.

Of making up the Issue.

EVERY clerk or attorney of the King's Bench may, according to the ancient rules of the court, make up the issue and demurrer books in the following cases, viz. Every issue that may be given on the book side-Not guilty to a new assignment in trespass, the bar of son frank tenement, comperuit ad diem, to a bail-bond, nul tiel record to an action of debt on a judgment, a general demurrer to a declaration, in covenant where the defendant in his bar concludeth to the country; every special non est factum; every son assault demesne; and likewise all issues and demurrers upon every writ of error, scire facias, and audita querela, and re; leaders, or other matters formerly entered of record. In all other cases, both by bill and original, the issue, or as it is commonly termed, the paper book, or upon an issue in law, the demurrer book, is made up by the clerk of the papers. Say. Rep. 97.

In all cases where the issue is made up by the attorney, it is to be ingrossed on a four-penny stamp paper on one side only, and delivered to the defendant's attorney,

And by rule, H. 35 Geo. 3. it is ordered that no judgment shall be signed for non-payment of the issue money, but that the issue money shall remain to be taxed, as part of the costs in the cause: which rule has been held to extend not only to general issues but to all special issues, paper books, and demurrer books. Fuller v. Osborn, 6 Term Rep. 477.

The issue contains an entry of the declaration, plea, and all subsequent pleadings, and in actions by bill should be made up of the term in which the similiter is joined.

And it is prefaced with a memorandum, stating the term in which the declaration is delivered, and that there are pledges for the prosecution of it.

In case the issue be made up the term the declara- If made up tion is of, it states the bill to have been exhibited on the the term defirst day of that term.

claration of.

But if the issue is to be made up of a subsequent If of a subterm to that in which the declaration is delivered, then sequent term. the memorandum states the bill to have been exhibited of'

the term generally as last past, in which the declaration

is delivered, to which is added an imparlance over to the term the issue is made up.

Where the proceedings are entered with a general me- If proceedings morandum, which relates to the first day of term, and are entered the cause of action appears in evidence to have arisen with a general after the first day of term, the plaintiff may produce the memorandum. writ, in order to shew that it was really sued out, subsequent to the cause of action. 3 Burr. 1241. Morris v.Pugh and another. See 2 Str. 1271.

In actions by original, the issue is intituled of the term In actions by the issue is joined, and has no memorandum.

Of making up the issue on a general plea of non assumpsit; or not guilty, &c. where the declaration and plea are of the same term.

Michaelmas term, in the 57th year of the reign of King
George the third.
Law and Markham.

original issue.

with the declaration.

London, Be it remembered, that on Thursday The form of to wit. next after the morrow of All Souls in an issue by this same term, before our lord the king at Westminster bill of the comes A. B. by E. F. his attorney, and brings into the same term court of our said lord the king, before the king himself now here, his certain bill against C. D. being in the custody of the marshal of the Marshalsea of our lord the now king, before the king himself, of a plea of trespass on the case, (a) and there are pledges for the prosecution, to wit, John Doe and Richard Roe; which As the action said bill follows in these words, to wit, London, (ss.) (say so) tresJohn Denn complains (to the end of the declaration) omit- pass and asting the pledges, and proceed on a new line, as (follows.) sault tresAnd the said C. D. by G H. his attorney, comes and passes. defends the wrong and injury, when, &c. and says, that Plea.

(a) The last day of the term, if your cause is tried the sittings after: if in term, the first day of the term. If in the country, the last day of term.

is. If in debt

If issue mislaid.

If declaration

be stated on a particular day in term.

Issue may be amended after verdict.

he did not undertake or promise in manner and form as
the said A. B. hath above thereof complained against
him, and of this he puts himself upon the country; and
the said A. B. doth the like, &c. Therefore, let a jury
thereupon come before our lord the king at Westminster,
on (a) next after
by whom, &c. and who
neither, &c. because as well, &c. the same day is given to
the parties aforesaid, at the same place. (b)

If plaintiff delivers the issue to defendant, and the papers are afterwards mislaid, the court will order the defendant to give him a copy of the issue to enter it by. Wiar v. Smith, Str. 414.

If the declaration be stated, of a particular day of the term, the memorandum to the issue must state the same day, which is generally the day after the cause of action arose. And where a tender is pleaded, and plaintiff puts a general memorandum of the term, the defendant may apply by summons to have the memorandum altered to the right day. (c) 1 Str. 638. Smith v. Key. 1 Ld. Ray. 683. Carth. 354.

Issue may be amended after verdict, although the similiter was not joined by adding it. Cowp. 408. Sayer v. Pocock. Formerly held not amendable Str. 641.8 Mod. 376.

How to make up Issue where the Declaration and Plea are of different Terms.

term, (the term in which issue is joined) in the 57th year of the reign of king George the third. Law and Markham.

Middlesex,

to wit

Be it remembered, that in Trinity term (d) last past, before our lord the king at Westminster, came A. B. by E. F. his at

(a) The last day of the term, if your cause is tried the sittings after if in term, the first day of the term. If in the country, the last day of term.

(b) If the pleadings are special, copied in their proper beginning,

line.

they should be each with a new

(c) The reason for a memorandum is, that proceedings by bill were formerly considered as the by business of the court. Gilb. C. P. 47.

(d) The term the declaration is of, and if the issue be