SOUTH-EASTERN RAILWAY COMPANY v. SPROTT, E. T. 1839. Q. B. 8 D. P. C. 493; S. C. 3 P. & D. 110; S. C. 11 Ad. & E. 167. ON motion to strike out pleas—

The Court held, that, upon a Judge's order for pleading several pleas, made a rule of Court, the course is to move to rescind the order, and not to strike out the pleas, and the latter rule, not having been drawn up "on reading the declaration," on affidavit of the pleas being identical, was discharged.

The motion

should be to rescind the Judge's order.

III. RELATIVE TO SHAM AND FRIVOLOUS PLEAS.

BELL . ALEXANDER, E. T. 1817. K. B. 6 M. & Selw. 133.
ON motion to set aside a judgment-
The Court held, that the plaintiff cannot take upon himself to
sign judgment as for want of a plea, unless the inference is irresisti-
ble that the plea is a sham plea.

SMITH V. BACKWELL, E. T. 1827. C. P. 4 Bing. 513; S. C.
I M. & P. 138.

ON motion for leave to sign judgment as for want of a plea

If a plea be clearly a sham plea, judgment may be signed*;

but it must be

The Court refused to allow judgment to be signed on the ground palpably sot.

* As where a judgment recovered was pleaded before the cause of action accrued. (Phillips v. Brine, E. T. 1817, K. B., 6 M. & S. 134).

However, if a defendant is under terms to plead issuably, and he pleads nunquam indebitatus to a declaration containing counts on bills of exchange, as well as for goods sold and delivered, the plaintiff may treat the plea as a nullity, and sign judgment as for want of a plea. (Sewell v. Dale, H. T. 1840, B. C., 8 D. P. C. 309). So, where a plea raising different issues, as, release by a deed lost or destroyed, was sworn to be false, the Court allowed judgment as for want of a plea. (Smith v. Hardy, T. T. 1832, C. P., 8 Bing. 435). And where after a frivolous and non-issuable plea, plaintiff signed judgment as for want of a plea, a rule to set aside the judgment was discharged with costs. (Blackburn v. Edwards, E.T. 1839, Q. B., 10 Ad. & E. 21). But the Court refused to treat a plea of a former judgment recovered as false, and allow the plaintiff to sign judgment as for want of a plea.-Semble, they will only interfere where the plea raises issues requiring different modes of trial, or is so drawn as to put the plaintiff to expense or delay. Young v. Gardiner, E. T. 1825, C. P., 8 Moore, 437).

Where the plea was a sham plea, and a demurrer to the replication only filed for delay, the Court refused to set aside the concilium for the last day of term, although the demurrer book had not been delivered on stamp (formerly required) to the defendant's clerk in Court, nor any books to the two junior barons. (Gent v. Vandermoolen, H. T. 1824, Ex., 13 Price, 247; see 10 Price, 340).

Where the defendant pleaded a plea offering several defences to the action, and raising several issues, both of fact and law, without leave to plead several matters, the Court confirmed an order, made by a Judge at chambers, for setting it aside, without an affidavit of its falsehood. (Balmanno v. Thompson, M. T. 1839, C. P., 8 D. P. C. 76; S. C. 6 Bing. N. S. 153). And the Court will set aside pleas which are frivolous or absurd, though the defendant be not under terms of pleading issuably. (Horner v. Keppel, E. T. 1839, Q. B., 2 P. & D. 234; S. C. 10 Ad. & E. 17). In an action by indorsee of a bill of exchange against the acceptor, a plea, that the drawer did not pay its amount to the acceptor, as the consideration of the acceptance, was held frivolous; and the Court made absolute, with costs, a rule for signing judgment as for want of a plea. (Knowles v. Burwood, E. T. 1839, Q. B., 2 P. & D. 235; S. C. 10 Ad. & E. 19).

of the falsehood of a plea of delivery of twenty pipes of wine in satisfaction, that being the only plea, and nothing improper on the

face of it.

A plea of pay

ment of a smaller sum, in satisfaction of a larger, is not cured by verdict*.

IV. RELATIVE TO DEFECTS IN, WHEN AIDED. DOWN v. HATCHER, E. T. 1839. Q. B. 10 Ad. & E. 121; S. C. 2 P. & D. 292.

In an action against an executrix for 2007., plea, as to the residue of the said sums of money in the declaration mentioned, that after the making of the promise herein mentioned, and before the commencement of this suit, to wit, on &c., the defendant, Charlotte, as such executrix as aforesaid, paid to plaintiff and he received the sum of 67. 108., in full satisfaction and discharge of the said residue of the sums of money in the declaration mentioned, and of all cause and causes of action in respect thereof. Replication, that the defendant, Charlotte, as such executrix as aforesaid, did not pay to plaintiff the said sum of money in manner and form as in the above plea alleged. Issue joined. After verdict, on motion for judgment non obstante veredicto

The Court held, that a plea of payment of a smaller sum, in satisfaction of a greater, is bad, and not cured by verdict for the defendant.

The defendant

has the whole

V. RELATIVE TO THE TIME FOR PLEADING.

(a) WITHIN THe four or eight DAYS.

PEPPERELL v. BURRELL, T. T. 1834. Ex. 1 C., M. & R. 372;
S. C. 4 Tyrw. 809.

UPON motion to set aside a judgment—

The Court held, that the defendant had the whole of the last day of the last day for delivering his plea, and judgment signed on that day was set aside

A summons for

as premature.

GLOVER v. WATMORE, T. T. 1826. K. B.
8 D. & R. 607.

5 B. & C. 769; S. C.

THE defendant obtained a summons for better particulars four particulars sus- days before the time of pleading expired, and the plaintiff's attorney

*Where the Christian name in the declaration varied from that in the summons:-Held, that the objection must be taken within the time for pleading, and that, after judgment signed for want of a plea, it was too late to move to set it aside for such irregularity. (Kitchen v. Brooks, T. T. 1839, Ex., 5 M. & W.522). + Where a declaration is delivered on Saturday, the Sunday morning following is reckoned in the computation of time to plead. (Shoebridge v. Irwin, M. T. 1837, Ex., 6 D. P. C. 126).

If a plaintiff gives a greater number of days for pleading than by the practice of the Court is required, the defendant is entitled to avail himself of that greater number. (Solomonson v. Parker, M. T. 1833, B. C., 2 D. P. C. 405).

If the defendant neglects to enter his appearance to the writ within eight days, and the plaintiff enters an appearance for him, and then the defendant enters an appearance and gives notice of it, the plaintiff may proceed as if no such appear. ance had been entered, and may sign a judgment without a demand of plea. (Davis v. Cooper, T. T. 1833, Ex., 2 D. P. C. 135).

did not attend until the third summons, when the order was refused, and the time for pleading being expired, he signed judgment for want of plea.

The Court held, that, the principal delay being created by the plaintiff's attorney, the judgment was signed too soon, and was therefore irregular.

REG. GEN. T. T. 1833. K. B., C. P., & Ex. 2 N. & M. 288;
S. C. 1 C. & M. 865; S. C. 3 Tyrw. 985.

It is ordered that in all actions against prisoners in the custody of the Marshal of the Marshalsea, or of the Warden of the Fleet, or of the sheriff, the defendant shall plead to the declaration at the same time, in the same manner, and under the same rules as in actions against defendants who are not in custody.

(6) WHERE TIME IS GRANTED.

SIMPSON v. COOPER, T. T. 1836. C. P. 2 Scott, 840.-S. P. LANE v. PARSONS, M. T. 1836. C. P. 5 D. P. C. 359; S. C. 3 Scott, 652.

An order obtained upon terms of seven days' time to pleadThe Court held, that the seven days commenced from the date of the order, and not from the expiration of the four days in which he was originally required to plead.

CLARK v. ALLBUT, H. T. 1836. Ex. 4 D. P. C. 684; S. C. 1 T.

& G. 71.

In an action in the Common Pleas, for a libel, to which a justifi- Time indefication was pleaded, the plaintiff having recovered a farthing damages, nitely is never because a part of the libel was not covered by the justification, that granted. Court granted a rule nisi for a new trial, on the ground that the justification was sufficient. An action having been brought in this Court by the same plaintiff, on the same libel, against another defendant

* An attorney residing in London has only four days' time for pleading in a country cause, notwithstanding the Uniformity of Process Act, (2 Will. 4, c. 39). (Lowder v. Lander, T. T. 1837, B. C., 5 D. P. C. 684.-S. P. Brenton v. LawH. T. 1837, C. P., 5 D. P. C. 506).

rence,

Where the plaintiff will not be materially prejudiced by the delay, the Court will, under certain circumstances, grant the defendant a year's time to plead. (Hunt v. Barclay, E. T. 1835, C. P., 3 D. P. C. 646). Where three months' time to plead is given generally, they are to be reckoned by lunar months, and not calendar months. (Soper v. Curtis, M. T. 1833, Ex., 2 D. P. C. 237).

Semble, that a summons for further time to plead, returnable at half-past ten in the morning "during Term," is a stay of proceedings, (Bebb v. Wales, H. T. 1837, Ex., 5 D. P. C. 458); although it is well known that a Judge does not attend at chambers at that hour. (Byles v. Walter, M. T. 1836, B. C., 5 D. P. C. 232).

If a defendant obtains an order calling upon the plaintiff to give security for costs, and directing that defendant shall have seven days to plead after such security given, and defendant, afterwards, and before security given, craves oyer, the time for pleading runs from the day when oyer is granted, if subsequent to the giving of security or rescinding of the order, and not in that case from the time when such security is given, or order rescinded. (Catrell v. Macdonald, T. T. 1836, K. B., 4 A. & E. 1004).

After a Judge gives a fixed

time no rule to plead need be

given.

The Court refused to grant time for pleading indefinitely until a rule, pending in another case, was determined.

NIAS v. SPRATLEY, T. T. 1825. K. B. 4 B. & C. 386; S. C. 6 D. & R. 390.

By a Judge's order, dated 16th April, on payment of the debt and costs on or before two o'clock on 20th April, all further proceedings were to be stayed, defendant undertaking in default of payment to receive a declaration and plead thereto within the first four days of the next term. The debt and costs not being paid, the declaration was delivered, but the defendant not pleading within the time limited the plaintiff signed judgment without ruling him to plead.

Per Cur.-After a Judge's order directing the defendant to plead within a given time, if no plea is pleaded within that time the plaintiff may sign judgment without giving a rule to plead.

(c) IN THE VACATION, OR EASTER OR OTHER HOLIDAYS*.

Need not be a new rule each term, even against a pri

soner.

VI. RELATIVE TO THE RULE TO PLEAD+.

PRYER V.

SMITH, T. T. 1833. Ex. 1 C. & M. 855; S. C. 2 D. P. C. 114; S. C. 3 Tyrw. 820.

THE declaration against a prisoner was delivered in Easter, and judgment signed for want of plea in Trin. Term, without a fresh rule to plead as of the latter term.

The Court held the judgment regular.

* Where a party before the 10th August, having obtained a fortnight's time to plead, before the expiration of that time, obtained by consent a month's further time-Held, that he was entitled to the remainder of the unexpired term so enlarged after the 24th October, and that judgment signed before was irregular. (Trinder v. Smedley, M. T. 1834, K. B., 3 D. P. C. 87). So, if the time for pleading does not expire until after the 10th of August, although it may be enlarged time, the defendant has still the same time for pleading as if the declaration had been filed or delivered on the 24th of October. (Wilson v. Bradslocke, M. T. 1833, B. C., 2 D. P. C. 416). So, where, on the 5th of September, the defendant obtained a month's further time to plead, taking short notice of trial for the first sitting in term :-Held, that nevertheless the enlarged time did not commence until after the 24th October. (Le Fevre v. Molineux, M. T. 1837, Ex., 6 D. P. C. 153).

By Rule E. T., 2 Will. 4, it is ordered, "That the days between Thursday next before and the Wednesday next after Easter day shall not be reckoned or included in any rules, or notices, or other proceedings, except notices of trials or notices of inquiry in any of the courts of law at Westminster."

The time for pleading expired on Monday, the 25th May; the Queen's birthday fell on the 24th, but was kept on the 25th, on which days all the offices were closed-Held, that a judgment signed on the opening of the office on the 26th was regular. (Wilkinson v. Britton, M. T. 1840, C. P., 1 Scott N. S. 348).

A rule to plead is necessary in all cases, whether the defendant has appeared or not; but the objection held to be waived by a summons for time. (Bolton v. Manning, T. T. 1837, Ex., 5 D. P. C. 769).

The rule to plead need not be dated; consequently, an erroneous date does not vitiate. (Wyatt v. Macdonald, M. T. 1836, C. P., 3 Scott, 768).

When a rule to plead is given before notice of declaration, it is irregular; but the irregularity is waived by taking out a summons for time to plead; (Pope v.

OSBORNE v. PINNELL, E. T. 1834. C. P.
S. C. 1 Scott, 277.

1 Bing. N. S. 320;

AFTER a summons for further time to plead, the defendant agreed to pay a part down, with costs of suit, and the remainder on a subsequent day; and having failed to do so, the plaintiff signed judgment, without any fresh rule to plead. The Court held that he was entitled to do so, being remitted to his former status upon the defendant failing to perform the agree

ment.

WARNE v. BERESFORD, M. T. 1835. Ex. 4 D. P. C. 36; S. C. 1 T. & G. 230.

THE rule to plead was in a wrong plaintiff's name, and judgment was signed on the ground of the plea being defective. The Court held, that the rule being as if no rule had been delivered, the judgment was irregular.

After compromise not performed, judgment may be signed without fresh rule to plead.

An irregular rule to plead is as no rule.

VII. RELATIVE TO THE DEMAND OF PLEA.

MARTIN v. MAHONEY, E. T. 1825. K. B. 5 D. & R. 609.
THE plaintiff demanded a plea before appearance, or the time for
appearing had expired, and signed judgment for want of plea.
The Court held it irregular.

Mann, T. T. 1837, Ex., 2 M. & W. 881); but there is no irregularity in entering a rule to plead, before notice of declaration but on the same day. (Aitman v. Conway, M. T. 1837, Ex., 6 D. P. C. 76; S. C. 3 M. & W. 71; S. P. Chapman v. Davis, T. T. 1840, C. P., 8 D. P. C. 831; S. C. 1 Scott, N. S. 431; S. C. 1 M. & G. 91). An appearance was entered for the defendant, and, after notice of declaration and demand of plea, he took out a summons for time to plead, which was not returnable until after the time for pleading expired. The plaintiff signed judgment:-Held, that a rule to plead was necessary, though an appearance had been entered for the defendant, but that the objection was waived by the summons for time. (Bolton v. Manning, T. T. 1837, Ex., 5 D. P. C. 769). Taking out a summons for time to plead is a waiver of a rule to plead. (Nugee V. M'Donell, E. T. 1835, B. C., 3 D. P. C. 579).

Formerly, after an amendment, whether made upon payment of costs or not, there must have been a new rule to plead. (Addis v. Thomas, M. T. 1829, C. P., 6 Bing. 236). And where a rule to plead has been entered in or of the term, or in the vacation, in which any amendment shall be allowed, no new rule to plead shall be necessary, but defendant shall plead within four days after such amendment, unless otherwise ordered by the Judge allowing the amendment. (Reg. Gen., H. T. 1830, C P., 6 Bing. 347). But now, by Rule H. T., 2 Will. 4, no rule to plead required after amendment of declaration. Where the declaration and rule to plead were both in the vacation :-Held, that a new rule to plead of the term was unnecessary, in order to entitle the plaintiff to sign judgment for want of plea. (Mould v. Murphy, E. T. 1833, Ex., 2 D. P. C. 54). The rule to plead ought to be left at the office until after the defendant is served with notice of declaration filed. (Bennett v. Smith, M. T. 1836, C. P., 5 D. P. C. 353; S. C. 3 Bing. N. S. 305; S. C. 3 Scott, 673).

* By Reg. Gen., H. T. 2 Will. 4, the demand has twenty-four hours to run from the time of making it.

A demand of plea cannot be served on a defendant, not an attorney, by sticking it up in the King's Bench office. (Anon., T. T. 1831, B. C., 1 D. P. C. 68).

Where a plea is a nullity, the plaintiff must nevertheless demand a plea before he signs judgment, and cannot treat it as a waiver of such demand. (Hough v. Bond, H. T. 1836, Ex., 1 M. & W. 314).

Cannot be de

manded before appearance*.