But, pleas of right of common at all times of the year, and of such right at particular times, or in a qualified manner, are not to be allowed. 1834. PLEADING. Right of com Right of way. So, pleas of a right of way over the locus in quo, vary- mon. ing the termini or the purposes, are not to be allowed. Avowries for distress for rent, and for distress for da mage feasant, are to be allowed. Distress for rent, and damage feasant. But, avowries for distress for rent, varying the amount Distress for rent. of rent reserved, or the times at which the rent is payable, are not to be allowed. instances only. The examples in this and other places specified are The cases above given as some instances only of the application of the mentioned as rules to which they relate; but the principles contained in the rules are not to be considered as restricted by the examples specified. these rules, how taken advantage of. 6. Where more than one count, plea, avowry, or cogni- Departure from zance shall have been used in apparent violation of the preceding rules, the opposite party shall be at liberty to apply to a Judge, suggesting that two or more of the counts, pleas, avowries, or cognizances are founded on the same subject-matter of complaint or ground of answer or defence, for an order that all the counts, pleas, avowries, or cognizances introduced in violation of the rule, be struck out at the cost of the party pleading; whereupon the Judge shall order accordingly, unless he shall be satisfied, upon cause shewn, that some distinct subject-matter of complaint is bonâ fide intended to be established in respect of each of such counts, or some distinct ground of answer or defence in respect of each of such pleas, avowries, or cognizances, in which case he shall indorse upon the summons, or state in his order, as the case may be, that he is so satisfied; and shall also specify the counts, pleas, avowries, or cognizances mentioned in such application, which shall be allowed. 7. Upon the trial, where there is more than one count, Costs of counts plea, avowry, or cognizance upon the record, and the and pleas. 1834. PLEADING. Special venue. Local descrip tion. Commencement and conclusion of pleas, &c. party pleading fails to establish a distinct subject-matter of complaint in respect of each count, or some distinct ground of answer or defence in respect of each plea, avowry, or cognizance, a verdict and judgment shall pass against him upon each count, plea, avowry, or cognizance which he shall have so failed to establish; and he shall be liable to the other party for all the costs occasioned by such count, plea, avowry, or cognizance, including those of the evidence as well as those of the pleadings: and further, in all cases in which an application to a Judge has been made under the preceding rule, and any count, plea, avowry, or cognizance allowed as aforesaid, upon the ground that some distinct subject-matter of complaint was bonâ fide intended to be established at the trial in respect of each count so allowed, or some distinct ground of answer or defence in respect of each plea, avowry, or cognizance so allowed, if the Court or Judge before whom the trial is had shall be of opinion that no such distinct subjectmatter of complaint was bonâ fide intended to be established in respect of each count so allowed, or no such distinct ground of answer or defence in respect of each plea, avowry, or cognizance so allowed, and shall so certify before final judgment, such party so pleading shall not recover any costs upon the issue or issues upon which he succeeds, arising out of any count, plea, avowry, or cognizance with respect to which the Judge shall so certify. 8. The name of a county shall in all cases be stated in the margin of a declaration, and shall be taken to be the venue intended by the plaintiff, and no venue shall be stated in the body of the declaration, or in any subsequent pleading. Provided, that, in cases where local description is now required, such local description shall be given. 9. In a plea or subsequent pleading intended to be pleaded in bar of the whole action generally, it shall not be necessary to use any allegation of actionem non, or to the like effect, or any prayer of judgment; nor shall it be necessary in any replication or subsequent pleading intended to be pleaded in maintenance of the whole action, to use any allegation of "precludi non," or to the like effect, or any prayer of judgment; and all pleas, replications, and subsequent pleadings, pleaded without such formal parts as aforesaid, shall be taken, unless otherwise expressed, as pleaded respectively in bar of the whole action, or in maintenance of the whole action; provided, that nothing herein contained shall extend to cases where an estoppel is pleaded. 1834. PLEADING. 10. No formal defence shall be required in a plea; and Commencement it shall commence as follows:-" The said defendant, by of plea. 11. It shall not be necessary to state in a second or Second plea. other plea or avowry that it is pleaded by leave of the Court, or according to the form of the statute, or to that effect. 12. No protestation shall hereafter be made in any Protestation. pleading; but either party shall be entitled to the same advantage in that or other actions as if a protestation had been made. 13. All special traverses, or traverses with an induce- Traverses. ment of affirmative matter, shall conclude to the country. Provided, that this regulation shall not preclude the Opposite party opposite party from pleading over to the inducement when may plead over. the traverse is immaterial. 14. The form of a demurrer shall be as follows:-"The Form of desaid defendant, by his attorney [or, in person, &c., or plaintiff], says that the declaration [or plea, &c.] is not sufficient in law," shewing the special causes of de murrer, if any. murrer. murrer. The form of a joinder in demurrer shall be as follows:- Joinder in de"The said plaintiff [or defendant] says that the declaration [or plea, &c.] is sufficient in law." 1834. PRACTICE. PLEADING. Entry of pro ceedings on record. Charge for issue. Payment of money into Court. No order to pay money into certain cases. 15. The entry of proceedings on the record for trial, or on the judgment-roll (according to the nature of the case), shall be taken to be, and shall be in fact, the first entry of the proceedings in the cause, or of any part thereof, upon record; and no fees shall be payable in respect of any prior entry made or supposed to be made on any roll or record whatever. 16. No fees shall be charged in respect of more than one issue by any of the officers of the Court, or of any Judge at the Assizes, or of any other officer, in any action of assumpsit, or in any action of debt on simple contract, or in any action on the case. 17. When money is paid into Court, such payment shall be pleaded in all cases, and, as near as may be, in the following form, mutatis mutandis: in person, &c.], says that the plaintiff ought not further to maintain his action, because the defendant now brings into Court the sum ofl., ready to be paid to the plaintiff; and the defendant further says, that the plaintiff has not sustained damages [or, in actions of debt, that he is not indebted to the plaintiff] to a greater amount than the said sum &c., in respect of the cause of action in the declaration mentioned; and this he is ready to verify; wherefore he prays judgment if the plaintiff ought further to maintain his action." 18. No rule or Judge's order to pay money into Court Court except in shall be necessary, except under the 3 & 4 Will. 4, c. 42, s. 21; but the money shall be paid to the proper officer of each Court, who shall give a receipt for the amount in the margin of the plea; and the said sum shall be paid out to the plaintiff on demand. Proceeding by plaintiff after payment of 19. The plaintiff, after the delivery of a plea of payment of money into Court, shall be at liberty to reply to 1834. PRACTICE. Court. the same, by accepting the sum so paid into Court in full satisfaction and discharge of the cause of action in respect of which it has been paid in; and he shall be at liberty in that case to tax his costs of suit, and, in case of non-pay- money into ment thereof within forty-eight hours, to sign judgment for his costs of suit so taxed; or the plaintiff may reply "that he has sustained damages [or, that the defendant is indebted to him, as the case may be] to a greater amount than the said sum;" and, in the event of an issue thereon being found for the defendant, the defendant shall be entitled to judgment and his costs of suit. 20. In all cases under the 3 & 4 Will. 4, c. 42, s. 10, in which, after a plea in abatement of the nonjoinder of another person, the plaintiff shall, without having proceeded to trial on an issue thereon, commence another action against the defendant or defendants in the action. in which such plea in abatement shall have been pleaded and the person or persons named in such plea in abatement as joint contractors, the commencement of the declaration shall be in the following form: "[Venue.]—A. B., by E. F., his attorney, [or, in his own proper person &c.], complains of C. D. and G. H., who have been summoned to answer the said A. B., and which said C. D. has heretofore pleaded in abatement the nonjoinder of the said G. H., &c." [The same form to be used mutatis mutandis in cases of arrest or detainer.] Commenceclaration after ment of de plea of nonjoinder. Character of assignees, &c., admitted, unless nied. specially de 21. In all actions by and against assignees of a bankrupt or insolvent, or executors or administrators, or persons to be taken as authorized by act of parliament to sue or be sued as nominal parties, the character in which the plaintiff or defendant is stated on the record to sue or be sued, shall not in any case be considered as in issue, unless specially denied. |
