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DEFENDANT'S PROCEEDINGS FROM DECLARATION TO NOTICE OF TRIAL. 91 .neitstebol, 199 9d Jems auoitomteni Job Further Time to plead

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Time to plead-Instructions for Plea—Further -Misnomer-Pleas in Abatement Nonjoinder—Coverture -Affidavit of Verification-Within what Time to plead in Abatement-Changing Venue Oyer-Paying Money into Court-Notice of Trial Application to put off Trial,70 m If the defendant have not appeared, the declaration is always filed, and in that case the defendant receives a notice of declaration. If the defendant have appeared, the declaration is always delivered to to the defendant's agent in London. Where t e the declaration is filed, the time to plead runs from the day on which the defendant was served with notice of declaration; where it is delivered, the time to plead runs from the date of the declaration. The declaration is always dated on the day it is filed or delivered. If the defendant mean to plead in abatement, ént he must in all cases plead within four days; for instance, if the declaration or notice be delivered on Monday, the plea must be delivered on Friday (a). In other cases, if the venue be laid in any other county th London or Middlesex, the defendant (unless he be an attorney) has eight days' time to plead-and these days are always exclusive of the day on which the notice of declaration was served, or the day on which the declaration is dated; for instance, if the declaration be delivered on Monday, the defendant will have the whole of the Tuesday week following to plead. It is also to be observed here, that if a declaration be delivered on a Saturday, the time for pleading would,

(a) Ryland v. Wormald, 2 Meeson & Welsby, 393.

than

according to what has been said, expire on a Sunday; but where this is the case, the defendant has always the whole of the following Monday to plead so that Sunday is reckoned, if it be not the last day, but if it be the last day, it is not reckoned.

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When the defendant's agent sends a copy of the declaration, he requires instructions for plea; if those instructions cannot be conveniently sent in time to enable the agent to plead within the eight days, he can generally some further time upon a judge's summons. But if the instructions can be sent in time, its is always best to send them, for, if an order for further time be obtained, the defendant is always put under terms to plead issuably, and generally to rejoin gratis; the effect of these terms is, that if the declaration be informal, the defendant cannot demur specially for the informality; which it is often very desirable to be able to do; and if the pleadings run run to a rejoinder, the defendant is bound to deliver it within twenty-four hours after the plaintiff's replication is delivered, instead of being entitled to a rule to rejoin, which would give him four days: another great inconvenience is, that the defendant, on obtaining further time, is generally put under terms to accept short notice of trial, that is, four days' notice instead of ten days; this, it is obvious, must often be a great disadvantage. For these reasons, not to mention the extra expense, country attorneys are recommended to instruct their agents so that they may be able to plead within eight days, wherever it can be conveniently done.

Plea in Abatement. The most usual pleas in abatement are, a plea of nonjoinder of parties with the defendant, a plea of defendant's coverture-or a plea of plaintiff's coverture-a plea that another action is pending for the same cause, is also a plea in abatement: formerly, a misnomer was pleaded in abatement; but now that plea is not allowed; and if there be a misnomer in the writ, the defendant may apply to a judge, by summons, to have the

declaration amended at the plaintiff's expense.-Stat. 3 & 4 Will. IV. c. 42, s. 11.

If there be a nonjoinder of parties with the plaintiff, it need not be pleaded in abatement, but may be pleaded in bar, or it will be a ground of nonsuit at the trial on the general issue. A plea in abatement must be delivered to the plaintiff's London agent within four days after the declaration has been delivered; or if the declaration have been filed, and notice of declaration given, then the plea must be pleaded within four days after the defendant has been served with notice of declaration. A plea of nonjoinder in abatement cannot be pleaded unless the person who the defendant says ought to have been joined reside within the jurisdiction of the Court, and it must be so stated in the plea. The plea must be verified by an affidavit, which affidavit must state with convenient certainty the residence of the person the defendant alleges ought to be joined. Sect. 8 of the last-mentioned statute. The forms of pleas in abatement for nonjoinder, and the affidavit of verification, are given in the Appendix, sect. 17.

If, in consequence of the defendant's plea of nonjoinder, the plaintiff commence a new action against the defendant, and the person mentioned in the plea and the action go to trial, and that person have a verdict, but a verdict go against him who was defenddant in the first action, the defendant who has the verdict is entitled to have his costs taxed and paid by the plaintiff; but the amount the plaintiff so pays to this defendant, he is entitled to have included in the costs to be paid to him by the defendant against whom he had a verdict; and as that defendant has this liability cast upon him, he is at liberty on the trial, to adduce evidence to show that the other defendant was liable jointly with himself, as stated in his plea in abatement.-Sect. 10.

Forms of pleas of coverture, and of the affidavit of verification, are given in the Appendix, sect. 18.

It is to be observed, however, that coverture is only necessary to be pleaded in abatement where the contract on which the action is brought was entered into before the coverture took place. If the party were married at that time, the plea is then to be pleaded in bar.

The form of a plea of another action pending varies in different cases, and where such a plea is intended to be pleaded, the precaution should be taken to have it prepared by a special pleader before the plaintiff declares; and indeed in other cases where it is intended to plead in abatement, the attorney should not wait till he receives the declaration, but should get the plead drawn while the eight days' time to appear is running, so that when he is apprised that the declaration is delivered, he may be able to get the affidavit verifying the plea sworn, and to send the plea and affidavit to his agent without delay; but the forms which have been adverted to are given, that in the cases to which they are applicable, the country attorney may be able to prepare the plea himself, in case he may have omitted to get it prepared by anticipation. The affidavit must not, however, be sworn, until after the declaration is delivered, for if it appeared to be sworn on a day previous to the date of the declaration, it would be irregular. Where the country attorney resides at a considerable distance from London, it would often be quite impossible to deliver the plea within the four days where that impossibility can be clearly shown, the defendant's agent may probably obtain an extension of the time for a few days; but he should, previously to the plaintiff's declaring, be instructed that it is intended to plead in abatement, for the application for time should be made before the four days have expired. It is only, however, in cases where the impossibility of the defendant's pleading in time can be clearly shown, (as where the plaintiff delivers his declaration late on a Saturday night,) that any time will be granted, for pleas

in abatement, being dilatory, are not favoured, and a country attorney should never depend upon being able to obtain a single day.

The date at the top of the plea must be the day on which it is delivered to the plaintiff's London agent, and the plea must be signed by counsel, which the agent will get done. It is not absolutely neces sary that the defendant himself make the affidavit of the truth of the plea, any one who knows it may make the affidavit. 907 9út 7812 lbw auft

On receiving a copy of the declaration; it will sometimes be found that the plaintiffs has not laid the venue in the county in which the cause of action arose, and that it is desirable for the defendant to have the venue changed to that county. Where this is the case, the defendant, or one of the defendants, must, as soon as possible after the declaration is delivered, and at all events before pleading, make an affidavit in the form in the Appendix, sect.-195 and this affidavit must be sent to the agent, who will do what is necessary to get the venue changed. If the defendant be out of the country, so that he cannot be got at to make the affidavit, it may bẹ made by any person, such as his clerk, who has the means of knowing and does know the fact to be it mola ad gunsdob

sworn to.

It is to be observed, however, that if the declara tion contain a count on a bill of exchange, a promissory note, a bond, deed, or other specialty, the venue cannot be changed upon the common affidavit, as it is considered that a cause of action on any of these instruments does not arise in any particular place; but, upon special grounds, the venue in these and indeed in any case may be changed. Instances of such special grounds are, where the defendant can not have a fair trial in the county where the venue is laid; where all or most of the witnesses live in a different county, and it would be a great saving of expense to try the cause in that county. The application on special grounds must not be made, how