1834.

PLEADING.

Recital of stat. 3 & 4 Will. 4, c. 42, s. 1.

PLEADING.

WHEREAS it is provided by the statute 3 & 4 Will. 4, c. 42, s. 1, that the Judges of the superior Courts of common law at Westminster, or any eight or more of them, of whom the Chiefs of each of the said Courts should be three, should and might, by any rule or order to be from time to time by them made, in term or vacation, at any time within five years from the time when the said act should take effect, make such alterations in the mode of pleading in the said Courts, and in the mode of entering and transcribing pleadings, judgments, and other proceedings in actions at law, and such regulations as to the payment of costs, and otherwise for carrying into effect the said alterations, as to them might seem expedient; which rules, orders, and regulations were to be laid before both Houses of Parliament as therein mentioned, and were not to have effect until six weeks after the same should have been so laid before both Houses of Parliament, but after that time should be binding and obligatory on the said Courts, and all other Courts of common law, and be of the like force and effect as if the provisions contained therein had been expressly enacted by parliament:

Provided, that no such rule or order should have the effect of depriving any person of the power of pleading the general issue, and of giving the special matter in evidence, in any case wherein he then was or thereafter should be entitled so to do by virtue of any act of parliament then or thereafter to be in force:

IT IS THEREFORE ORDERED, That, from and after the first day of Easter Term next inclusive, unless parliament shall in the mean time otherwise enact, the following rules and regulations made pursuant to the said statute shall be in force.

FIRST GENERAL RULES AND REGULATIONS.

1. Every pleading, as well as the declaration, shall be intituled of the day of the month and year when the same was pleaded, and shall bear no other time or date; and every declaration and other pleading shall also be entered on the record made up for trial, and on the judgment-roll, under the date of the day of the month and year when the same respectively took place, and without reference to any other time or date, unless otherwise specially ordered by the Court or a Judge.

1834.

PLEADING.

Pleadings to be intituled of the day and year when pleaded.

ances to be entered.

2. No entry of continuances by way of imparlance, No continucuria advisari vult, vicecomes non misit breve, or other, wise, shall be made upon any record or roll whatever, or in the pleadings, except the jurata ponitur in respectu, which is to be retained.

the times of

Provided, that such regulation shall not alter or affect Not to affect any existing rules of practice as to the times of proceeding proceeding. in the cause. Provided also, that in all cases in which a plea puis Puis darrein darrein continuance is now by law pleadable, in Banc, or at Nisi Prius, the same defence may be pleaded, with an allegation that the matter arose after the last pleading, or the issuing of the jury process, as the case may be.

continuance.

rify.

Provided also, that no such plea shall be allowed, unless Affidavit to veaccompanied by an affidavit that the matter thereof arose within eight days next before the pleading of such pleas, or unless the Court or a Judge shall otherwise order.

3. All judgments, whether interlocutory or final, shall be entered of record of the day of the month and year (whether in term or vacation) when signed, and shall not have relation to any other day.

Judgment en

tered of day

when signed.

Provided, that it shall be competent for the Court or a Nunc pro tunc. Judge to order a judgment to be entered nunc pro tunc.

K 2

1834.

PLEADING.

Warrants of attorney not to be entered.

Several counts and pleas, where allowed.

Examples in de

clarations.

Contract with condition.

Non-delivery of

4. No entry shall be made on record of any warrants of attorney to sue or defend.

5. AND WHEREAS, by the mode of pleading hereinafter prescribed, the several disputed facts material to the merits of the case will before the trial be brought to the notice of the respective parties more distinctly than heretofore; and, by the said act of the 3rd & 4th Will. 4, c. 42, s. 23, the powers of amendment at the trial, in cases of variance in particulars not material to the merits of the case, are greatly enlarged:

Several counts shall not be allowed, unless a distinct subject-matter of complaint is intended to be established in respect of each; nor shall several pleas, or avowries, or cognizances be allowed, unless a distinct ground of answer or defence is intended to be established in respect of each.

Therefore, counts founded on one and the same principal matter of complaint, but varied in statement, description, or circumstances only, are not to be allowed.

Ex. gr. Counts founded upon the same contract, described in one as a contract without a condition, and in another as a contract with a condition, are not to be allowed; for, they are founded on the same subject-matter of complaint, and are only variations in the statement of one and the same contract.

So, counts for not giving or delivering or accepting a bill in payment. bill of exchange in payment, according to the contract of sale, for goods sold and delivered, and for the price of the same goods to be paid in money, are not to be allowed.

Not accepting and paying for goods.

Bills and notes.

So, counts for not accepting and paying for goods sold, and for the price of the same goods, as goods bargained and sold, are not to be allowed.

But counts upon a bill of exchange or promissory note, and for the consideration of the bill or note in goods,

money, or otherwise, are to be considered as founded on distinct subject-matters of complaint; for, the debt and the security are different contracts; and such counts are to be allowed.

1834.

PLEADING.

Two counts upon the same policy of insurance are not Policies. to be allowed.

But, a count upon a policy of insurance, and a count Premium. for money had and received, to recover back the premium

upon a contract implied by law, are to be allowed.

Two counts on the same charter-party are not to be Charter-parties. allowed.

But, a count for freight upon a charter-party, and for Freight. freight pro ratâ itineris, upon a contract implied by law, are to be allowed.

and occupation.

Counts upon a demise, and for use and occupation Demise, and use of the same land for the same time, are not to be allowed.

In actions of tort for misfeasance, several counts for the Misfeasance. same injury, varying the description of it, are not to be allowed.

In the like actions for nonfeasance, several counts Nonfeasance. founded on varied statements of the same duty, are not to be allowed.

Several counts in trespass, for acts committed at the Trespass. same time and place, are not to be allowed.

Where several debts are alleged in indebitatus assump- Indebitatus assit to be due in respect of several matters, ex. gr., for sumpsit. wages, work and labour as a hired servant, work and labour generally, goods sold and delivered, goods bargained and sold, money lent, money paid, money had and received, and the like, the statement of each debt is to be considered as amounting to a several count within the meaning of the rule which forbids the use of several counts, though one promise to pay only is alleged in consideration of all the debts.

1834.

PLEADING.

Provided, that a count for money due on an account

stated may be joined with any other count for a money Account stated. demand, though it may not be intended to establish a distinct subject-matter of complaint in respect of each of such counts.

Several breach

es.

Instances of pleas and avowries, &c.

Payment.

Accord and satisfaction-Re

lease.

Liability of

third party.

Agreement to forbear in con

sideration of li

party.

The rule which forbids the use of several counts is not to be considered as precluding the plaintiff from alleging more breaches than one of the same contract in the same count.

Ex. gr.-Pleas, avowries, and cognizances, founded on one and the same principal matter, but varied in statement, description, or circumstances only (and pleas in bar in replevin are within the rule), are not to be allowed.

Pleas of solvit ad diem, and of solvit post diem, are both pleas of payment, varied in the circumstance of time only, and are not to be allowed.

But pleas of payment, and of accord and satisfaction, or of release, are distinct, and are to be allowed.

Pleas of an agreement to accept the security of A. B., in discharge of the plaintiff's demand, and of an agreement to accept the security of C. D. for the like purpose, are also distinct, and to be allowed.

But, pleas of an agreement to accept the security of a third person in discharge of the plaintiff's demand, and ability of third of the same agreement, describing it to be an agreement to forbear for a time, in consideration of the same security, are not distinct; for, they are only variations in the statement of one and the same agreement, whether more or less extensive, in consideration of the same security, and not to be allowed.

Liberum tenementum, easement, right of way, right of

In trespass quare clausum fregit, pleas of soil and freehold of the defendant in the locus in quo, and of the defendant's right to an easement there, pleas of right of way, mon of turbary, of common of pasture, of common of turbary, and of common of estovers, are distinct, and are to be allowed.

common, com

and of estovers.