pose of bringing an action: wherein, if a verdict be given for the defendant, the plaintiff must pay the costs.

If the debtor considers himself aggrieved by the determination of the judge, as to the quantum of his debt, the plaintiff may proceed in the name of the defendant to the original action, for the debt supposed to be due to the defendant by the debtor (a); in which case, all proceedings before the judge are suspended. All the examinations and interrogatories are immediately delivered by the judge to the secretary, to be filed, as a record, with the other papers in the same cause (b).

SECTION IV.

On the Declaration and other Pleadings, Motions in Court, and Payment of Money therein, Proceedings on Warrants of Attorney, and Confession of Judgment.

IT has been stated before, that a summons annexed to a declaration is the usual mode of commencing an action, in which the rules of special pleading are followed as strictly as in the English practice, and the forms are those of the Common Pleas, subject to the necessary variations. If, when two or more are concerned, one of the plaintiffs or defendants die, and the cause survives for or against the other, the death is suggested on the record, and the cause proceeds for or against the survivors (a). The damages are always laid in the currency of the country; and if the debt demanded be originally sterling money, it seems that an averment of the corresponding value in currency is advisable, if not necessary (b). In cases of bonds for a penalty, or for non-performance of covenants, after judgment by default or confession,

(a) Sect. 85.

(6) App. No. VI. So in actions on bills of exchange, or contracts for foreign money, the same averment is deemed necessary.

the plaintiff may assign as many breaches as he pleases; which assignment, with a summons varied to the nature of the case, is served in the same manner as a declaration (a). The defendant must enter his appearance at the second court, otherwise judgment by default will pass against him (b). This may be done ore tenus on the day of trial, which the secretary makes a short entry of; but in such case he can only plead the general issue (c), except in actions in debt, and for penalties, where payment generally concluding to the country may be pleaded (d). When a special plea or demurrer is pleaded, it must be filed fifteen days before the

(c) Formerly this plea was also ore tenus, but of late years the court has reformed the practice, and it is now required to be in writing, though it may be filed in court. It would be a great improvement in the practice, if appearances were required to be entered four days before the sitting of the court, and the general issues to be then filed. By a late rule, it is now provided, that in all cases where the damages exceed thirty pounds, the defendant must plead fifteen days before the second court day, whether his plea be the general issue, or any other plea. But as this rule contradicts the act, it may be reasonably doubted how far it is binding. See the 37th rule and sect. 97 of the court act.

(d) Sect. 83. For the forms of pleading and payment in debt, see 2 Chitty, 474. In assumpsit it may be given in evidence on the general issue.

second court after the commencement of the action, and notice given to the plaintiff or his counsel five days after filing. To this the plaintiff must demur, reply, or join in demurrer, five days before the same court, and give six hours notice of filing (a). A rejoinder is to be filed in twenty-four hours after such notice, unless the court, on application, should see reason to enlarge the time (b). Executors and administrators, and heirs and devisees, are allowed a year and a day to plead to any actions brought against them (c). Several pleas may be pleaded by leave of a judge, who indorses such licence on the back of the pleas (d). Mutual debts may be set off(e), and the matter given in evidence upon the general issue, or pleaded in bar; so as in the first case, a notice of the set-off be given six days before the trial, of the sum insisted upon, otherwise evidence of the debt will not be allowed. And to prevent disputes, the defendant, after verdict, makes out an account of the sums allowed by the jury, which is annexed to the proceedings in the cause, and filed there

(a) App. No. XVII.

(b) Sect. 37.

(c) R. 13.

(d) See the statute 4 Ann. c. 16. s. 4. 5. Tidd, 701.

R. 16.

(e) Tidd's Forms, 183. In the case of a penalty, the set-off must be pleaded. Tidd, 689. 697

with (a). The correct practice is, to file a notice of set-off(b), with an affidavit of service of a copy thereof on the plaintiff or the counsel in the cause; but this affidavit is seldom made.

In the course of the cause, it may be necessary to apply to the court upon various occasions. This is generally done at the courts of special pleading; yet the court sitting for the trial of causes will entertain motions for the postponement of a trial, or the continuance of a suit, although perhaps irregular. The practice respecting motions is regulated like the English courts, except in some few cases. In all cases of notices not otherwise provided for, one day is to be construed exclusive, the other inclusive (c), and the service of all summonses and orders are by serving copies, and producing the original to the party; this strictness, however, is never required. All notices are served upon each of the judges (d), and upon the secretary, otherwise the motion will not be entertained; and, in most cases, the grounds of the application are required to be stated in the notice (e).

It is usual, in the first instance, to obtain

(a) Sect. 102.

(b) App. No. XVIII. (d) R. 6. App. No. XIX.

(c) R. 32.

(e) R. 25.