Слике страница
PDF
ePub

ings.

ing plead just under the special circumstances of the case. (See Cashin v. Cradock, L. R. 3 Ch. D. 376; 35 L. T. N. S. 452; The Cybele, 37 L. T. N. S. 165; 3 Mar. L. C. N. S. 478.) And for an example under the former practice, see The Antelope, L. R. 4 Ad. 33; 42 L. J. Ad. 42, as to a plea in a salvage action; and The Alhambra, Br. & L. 286, where a plea of compulsory pilotage was not allowed to be added at the hearing. Under ordinary circumstances the Court of Appeal will not interfere with the discretion vested in the judge below as to pleadings, even though they may not entirely agree with his decision, and unless great injustice would be done by such non-interference. (Golding v. The Wharton Railway Co. v. Rodwell, 1 Q. B. D. 374; 34 L. T. N. S. 474; Watson v. Rodwell, L. R. 3 Ch. 380; 45 L. J. Ch. 744.)

Demurrer.

Time.

ORDER XXVIII.

DEMURRER.

1. Any party may demur to any pleading of the opposite party, or to any part of a pleading setting up a distinct cause of action, ground of defence, set-off, counter-claim, reply, or as the case may be, on the ground that the facts alleged therein do not show any cause of action, or ground of defence to a claim or any part thereof, or set-off, or counter-claim, or reply, or as the case may be, to which effect can be given by the Court as against the party demurring.

2. A demurrer shall state specifically whether it is to the whole or to a part, and if so, to what part, of the pleading of the opposite party. It shall state some ground in law for the demurrer, but the party demurring shall not, on the argument of the demurrer, be limited to the ground so stated. A demurrer may be in the Form 28 in Appendix (C.) hereto. If there is no ground, or only a frivolous ground of demurrer stated, the Court or judge may set aside such demurrer, with costs.

3. A demurrer shall be delivered in the same manner and within the same time as any other pleading in the action.

4. A defendant desiring to demur to part of a statement of claim, and to put in a defence to the other part, shall combine such

1

demurrer and defence in one pleading. And so in every case where a party entitled to put in a further pleading desires to demur to part of the last pleading of the opposite party, he shall combine such demurrer and other pleading.

and

demurring.

5. If the party demurring desires to be at liberty to plead as well Pleading as demur to the matter demurred to, he may, before demurring, apply to the Court or a judge for an order giving him leave to do so; and the Court or judge, if satisfied that there is reasonable ground for the demurrer, may make an order accordingly, or may reserve leave to him to plead after the demurrer is overruled, or may make such other order and upon such terms as may be just.

6. When a demurrer either to the whole or part of a pleading is Entry of delivered, either party may enter the demurrer for argument imme- demurrer. diately, and the party so entering such demurrer shall on the same day give notice thereof to the other party. If the demurrer shall not be entered and notice thereof given within ten days after delivery, and if the party whose pleading is demurred to does not within such time serve an order for leave to amend, the demurrer shall be held sufficient for the same purposes and with the same result as to costs as if it had been allowed on argument.

7. While a demurrer to the whole or any part of a pleading is Amendpending, such pleading shall not be amended, unless by order of the ment. Court or a judge; and no such order shall be made except on payment of the costs of the demurrer.

8. Where a demurrer to the whole or part of any pleading is allowed upon argument, the party whose pleading is demurred to shall, unless the Court otherwise order, pay to the demurring party the costs of the demurrer.

9. If a demurrer to the whole of a statement of claim be allowed, Costs. the plaintiff, subject to the power of the Court to allow the statement of claim to be amended, shall pay to the demurring defendant the costs of the action, unless the Court shall otherwise order.

10. Where a demurrer to any pleading or part of a pleading is allowed in any case not falling within the last preceding rule, then (subject to the power of the Court to allow an amendment) the matter demurred to shall, as between the parties to the demurrer, be deemed to be struck out of the pleadings, and the rights of the parties shall be the same as if it had not been pleaded.

11. Where a demurrer is overruled, the demurring party shall pay to the opposite party the costs occasioned by the demurrer, unless the Court shall otherwise direct.

12. Where a demurrer is overruled, the Court may make such order

and
upon such terms as to the Court shall seem right for allowing
the demurring party to raise by pleading any case he may be desirous
to set up in opposition to the matter demurred to.

13. A demurrer shall be entered for argument by delivering to the proper officer a memorandum of entry in the Form No. 29 in Appendix (C.).

The procedure as to demurrers is fully set out in the above rules. When the facts alleged in the pleadings show no cause of action or ground of defence in law, it is well to demur. But, if one part of a pleading is demurrable and another part is good in law, and raises a question of fact which will ultimately have to be decided irrespective of the demurrer, then it is scarcely advisable to demur. If the case can be decided by demurrer as first mentioned, the Court will order the hearing to be postponed, that the point may be properly raised by demurrer before the question of fact is gone into (The Horlock, L. R. 2 P. D. 243; 36 L. T. N. S. 622). Demurrers should be to the merits of the action, and not on subsidiary points (The Sir Charles Napier, L. R. 5 P. D. 73; 49 L. J. Ad. D. 23).

The plaintiff and defendant should each deliver their points for argument, that is, the legal grounds on which

they respectively rely,

to the registry, for the use of the Court at the hearing (The Anna, L. R. 1 P. D. 253 (255); 45 L. J. Ad. 98).

Default of

ORDER XXIX.

DEFAULT OF PLEADING.

1. If the plaintiff, being bound to deliver a statement of claim, pleading. does not deliver the same within the time allowed for that purpose, the defendant may at the expiration of that time apply to the Court or a judge to dismiss the action with costs, for want of prosecution; and on the hearing of such application the Court or judge may, if no statement of claim have been delivered, order the action to be dismissed accordingly, or may make such other order on such terms as to the Court or judge shall seem just.

pur

demand.

2. If the plaintiff's claim be only for a debt or liquidated demand, When and the defendant does not, within the time allowed for that liquidated pose, deliver a defence or demurrer, the plaintiff may at the expiration of such time enter final judgment for the amount claimed, with

costs.

defend

ants.

3. When in any such action as in the last preceding rule men- Several tioned there are several defendants, if one of them make default as mentioned in the last preceding rule, the plaintiff may enter final judgment against the defendant so making default, and issue execu. tion upon such judgment, without prejudice to his right to proceed with his action against the other defendants.

These rules do not apply to an action in rem (The Sfactoria, L. R. 2 P. D. 3; 35 L. T. N. S. 431).

procedure in such actions, see post, rr. 10 and 11.

For the

10. In all other actions than those in the preceding rules of this Proceedorder mentioned, if the defendant make default in delivering a ings in default of defence or demurrer, the plaintiff may set down the action on pleading motion for judgment, and such judgment shall be given as upon in action the statement of claim the Court shall consider the plaintiff to be entitled to.

11. Where, in any such action as mentioned in the last preceding rule, there are several defendants, then, if one of such defendants make such default as aforesaid, the plaintiff may either set down the action at once on motion for judgment against the defendant so making default, or may set it down against him at the time when it is entered for trial or set down on motion for judgment against the other defendants.

The judge of the Admiralty Division decided (The Sfactoria, L. R. 2 P. D. 3; 35 L. T. N. S. 431) that Rule 2 of this Order does not apply to an Admiralty action in rem, where there is a claim for a liquidated sum. It would appear, therefore, that in an action in rem, when an appearance has been entered, but default made in delivering a defence, in practice proofs should be brought into the registry, and the cause should be set down for hearing; thus adopting the same procedure as under O. xiii. (r. 10, substituted rule), or that the Court should be prayed for a decree on motion according to the allegations in the

in rem.

statement of claim, under O. xl., r. 1, the judge under 0. xxxvii., r. 1, having previously on application allowed the evidence to be taken on affidavit. Salvage actions have been tried when the defendant has made default in delivering a defence by the plaintiffs proving the main facts of the case by a single witness.

Non-de- 12. If the plaintiff does not deliver a reply or demurrer, or any party livery of does not deliver any subsequent pleading, or a demurrer, within the reply or demurrer. period allowed for that purpose, the pleadings shall be deemed to be closed at the expiration of that period, and the statements of fact in the pleading last delivered shall be deemed to be admitted.

Application for judgment.

Judgment by default.

13. In any case in which issues arise in an action other than between plaintiff and defendant, if any party to any such issue makes default in delivering any pleading, the opposite party may apply to the Court or a judge for such judgment, if any, as upon the pleadings he may appear to be entitled to. And the Court may order judgment to be entered accordingly, or may make such other order as may be necessary to do complete justice between the parties.

14. Any judgment by default, whether under this order or under any other of these rules, may be set aside by the Court or a judge, upon such terms as to costs or otherwise as such Court or judge may think fit.

Payment

in satisfaction of claim.

ORDER XXX.

PAYMENT INTO COURT IN SATISFACTION.

1. Where any action is brought to recover a debt or damages, any into Court defendant may at any time after service of the writ, and before or at the time of delivering his defence, or by leave of the Court or a judge at any later time, pay into Court a sum of money by way of satisfaction or amends. Payment into Court shall be pleaded in the defence, and the claim or cause of action in respect of which such payment shall be made shall be specified therein.

2. Such sum of money shall be paid to the proper officer, who shall give a receipt for the same. If such payment be made before delivering his defence, the defendant shall thereupon serve upon the plaintiff a notice that he has paid in such money, and in respect of what claim, in the Forin No. 5 in Appendix (B.)1 hereto.

1 App. IV., p. 441.

« ПретходнаНастави »