other pleas which by rule or order may from time to time be added to the foregoing list.

Of the pleas above designated some may be thought to need a brief explanatory notice. A plea of "the statute of limitations" is applicable where the action has not been brought within a certain time after accrual of the cause of action, limited by statute; for example, if the action be brought on a simple contract, such a plea would be that the alleged cause of action did not accrue within six years before suit (q); or, if on a specialty, not within twenty years prior thereto (r). The plea of "plene administravit" is applicable where an executor or administrator would set up in answer to a claim against him that he has fully administered the assets of the testator or intestate. The plea of "plene administravit præter" applies where this defence is relied on by a personal representative, that he has administered all but a certain portion of the assets, the amount of which he either pays into court or meets by some outstanding claim of a higher nature than the plaintiff's. The plea of [*348] son assault demesne is where the defendant in an action for assault pleads that the plaintiff first assaulted the defendant, who thereupon necessarily committed the alleged assault in his own defence.

*

Payment into court is a plea of great practical importance, and may be pleaded in any action except for assault, battery, false imprisonment, libel, slander, malicious arrest, malicious prosecution, or debauching the plaintiff's daughter or servant (s). Various statutes specially provide for payment into court in particular cases, as for instance, under Lord Campbell's Act (9 & 10 Vict. c. 93), and 27 and 28 Vict. c. 95, s. 2, relating to actions for compensation to the family of a person killed by accident. Further, a plea of apology and payment into court is allowed under 6 & 7 Vict. c. 96, in certain actions for libel. The Common Law Procedure Act, 1860, s. 25, also contains provisions as to payment into court in actions on money bonds and for detainer. No other plea besides that of payment into court can, however, be pleaded with it to the same part of the declaration.

The plea of payment of money into court admits a cause of action, and brings the money into court in satisfaction of the matter pleaded to. The practical effect, however, of the plea of payment into court, as an admission, varies very much with the nature and form of the declaration to which it is pleaded. For example, to a declaration for breach of a contract, where the contract is specially declared on, it would admit the contract as stated, and the breach to which it was pleaded; but to a declaration containing the common money counts, each of which may include several contracts under its. general terms, such as money lent, goods sold, work done at different times,. the plea of payment into court as to part of the money claimed may be pleaded, and never indebted to the residue; the effect of the admission by the former plea in such case not * amounting to more than that on some [*349] contract or other of the kind mentioned in the declaration money is dne to the amount of the sum paid into court. An indebitatus count, as we have before observed (t), is not necessarily confined to one contract, but may

extend to an indefinite number of contracts between the parties to the action; and when, therefore, the defendant pays money into court on such a count, he in effect says to the defendant, I admit that I owe you the sum paid into court upon some contract which may be comprehended in your count, but if you say I owe you more on any contract, prove that contract. So payment of money into court to a declaration upon a special agreement, admits the contract and the breach, for since the declaration contains but one contract, the payment into court must admit that contract by which alone anything is claimed to be due from the defendant to the plaintiff (u).

So in an action of tort the declaration may be so framed as to make a payment of money into court an admission of the particular cause of action sued for, and also of the breach. The payment of money into court in such an action may, according to the form of the declaration, be subject either to the rule applicable to special contracts, or to the rule applicable to the general indebitatus counts, as above stated.

Application to plead several matters is made by taking out a summons before a judge at chambers, calling on the plaintiff to show cause why the defendant should not be at liberty to plead the several matters annexed, and an abstract of the proposed plea is annexed to the summons. The same method is pursued in asking for leave to plead or demur, and also as to the subsequent pleadings where several matters have to be replied, and so forth. [*350] Equitable defences were first allowed to be pleaded in *actions at law by the Common Law Procedure Act, 1854. By sect. 83 of that act, it is lawful for a defendant or the plaintiff in replevin in any cause in which, if judgment were obtained, he would be entitled to relief against such judgment on equitable grounds, to plead the facts which entitle him to such relief by way of defence, and such defence may accordingly be received by way of plea, provided that it begin with the words "for defence on equitable grounds," or words to the like effect. Sect. 84 relates to grounds of equitable defence arising after the period for pleading has elapsed. Sect. 85 relates to equitable replications, and sect. 86 provides that in case it shall appear that any such equitable plea or equitable replication cannot be dealt with by a court of law, so as to do justice between the parties, the same may be struck out, on reasonable terms.

As regards the construction of the above sections it is now settled that the plea setting up a defence on equitable grounds must state such facts as would entitle the defendant to an unconditional injunction in equity, that is to say, he must show such a case as would induce a court of equity at once unconditionally to restrain the plaintiff from proceeding at law. The object of the enactment which gave effect to equitable pleas in a court of law was to enable a defendant instead of filing a bill in equity to restrain the plaintiff from proceeding at law, at once to plead the matter which would have entitled him to equitable relief, as an answer to the action. But one of the earliest restrictions imposed on the use of equitable pleas by the courts of law was that, unless the effect of the plea was to furnish a complete answer to the action and terminate the litigation, it should not be allowed (v).

The replication follows the plea; and at this stage of the proceedings issue is

(u) Per Jervis, C. J., Perren v. Monmouth- (v) Wakley v. Frogatt, 2 H. & C. 669. shire R. Co., 11 C. B. 858, 862-3.

very commonly joined between the parties - either issues of law, of fact, or of both.

*An issue in law is arrived at by joinder in demurrer, the demurrer [*351] stating simply that the declaration "is bad in substance;" in the margin of his demurrer the plaintiff has, however, to specify some substantial matter of law intended to be argued, and if he omit to do so, or if the ground stated be frivolous, the demurrer may be set aside. Supposing the demurrer to stand, the joinder of demurrer would be to the effect that the pleading demurred to "is good in substance," and would complete the issue of law to be tried by the court (x).

Joinder of issue of fact may be effected by either party pleading in answer to the plea or subsequent pleading of his adversary that he joins issue thereon (y), and such form of joinder of issue is to be deemed to be a denial of the substance of the plea or other subsequent pleading and an issue thereon, and in all cases where the plaintiff's pleading is in denial of the pleading of the defendant or some part of it, the plaintiff may add a joinder of issue for the defendant. A party is not, however, obliged in proceeding to issue to deny the whole of his adversary's pleading; he may, if he prefers it, traverse separately any material allegation in such pleading (z).

We have before said that an issue of fact is commonly arrived at by the time the replication is reached, the plaintiff joining issue on the pleas; but it may be requisite for the plaintiff's case (and the same remark would apply to either party at any of the subsequent pleadings), that he should reply in confession and avoidance of the plea instead of joining issue; and to a plea in confession and avoidance the defendant would have to rejoin, or the plaintiff might desire to join issue, or separately to traverse one or more material allegations in the plea, and also to reply in confession and avoidance, in which case he would have to obtain leave of a judge for that purpose. Thus the plaintiff would apply for leave to reply to several matters in the [* 352] following case: suppose an action to be brought for goods sold and delivered by the plaintiff to the defendant, and the defendant to plead that at the time of making the contract he was an infant within the age of 21 years, and suppose the defendant at the time of the action brought to be of age, and that it is doubtful whether he was not so at the time of making the contract, such question might be raised by the plaintiff's joining issue on the plea. But the plaintiff may also have grounds for contending that if the defendant were an infant at the time of the contract, the goods supplied were necessaries for the defendant suitable to his then estate, degree, and condition, and in such case he would reply in confession and avoidance of the plea that they were such necessaries (a). Again, there may have been before action some correspondence between the plaintiff and the defendant after the defendant came of age, and it may be a question on such correspondence whether the defendant has not ratified the contract, in which case the plaintiff would wish to plead also that the defendant after he had attained his full age of 21 years and before action, by a writing made and signed by him, ratified and confirmed the said contract. These replications containing distinct grounds of answer to the defendant's plea, would no doubt be allowed almost as of course on the plaintiff taking out

(x) C. L. Proc. Act, 1852, s. 89. (y) Id. s. 79.

(2) Id. ss. 76-78.

(a) See Ryder v. Wombwell, L. R. 4 Ex. 32.

a summons calling on the defendant to show cause why he should not be at liberty to reply the several matters specified in the abstract annexed to the summons, and such abstract might be in this form: 1. Joinder of issue; 2. That the goods were necessaries; 3. Ratification of the contract by the defendant after he came of age.

During the progress of a cause there are many proceedings of an auxiliary character which the law allows to the parties in furtherance of justice and in aid of their preparations for the trial. Of such proceedings some* relate [* 353] to the discovery and inspection of documents and the delivery of written interrogatories. A power to order inspection of documents was sometimes exercised by a court of law before the passing of the statute 14 & 15 Vict. c. 99, but by s. 6 of that act it was extended to all cases in which equity would order a discovery, it being thereby provided that the court or a judge might, on application made for such purpose by either of the litigants, in an action or other legal proceeding, compel the opposite party to allow to the applicant an inspection of all documents in his custody or under his control relating to the action. Such power being exercisable in all cases in which, previous to the passing of that act, a discovery might have been obtained by filing a bill, or by any other proceeding in a court of equity at the instance of the party making the application. The provisions referred to, it must be observed, do not give power to compel discovery, but are confined to inspection merely; they were, however, shortly followed by those contained in sect. 50 of the Common Law Procedure Act, 1854, enacting that, upon the application of either party to any cause or other civil proceeding in any of the superior courts, upon an affidavit by such party of his belief (b) that any document to the production of which he is entitled for the purpose of discovery or otherwise is in the possession of the opposite party, the court or a judge may order that the party against whom such application is made, or if such party is a body corporate, that some officer thereof shall state on affidavit what documents are in his or their possession or power relating to the matters in dispute, or what he knows as to the custody of them, and whether, and if so, on what grounds, the production of such documents as are in his or their possession or power is objected [*354] to, *and thereupon the court or judge may make such further order as

shall be just.

The above enactments being directed to the compelling of inspection of documents upon the grounds which would move a court of equity to order it, we may add that the right of a plaintiff in equity is limited, first, to a discovery confined to questions in the cause, i.e. of such material documents as relate to the proof of his (the plaintiff's) case on the trial, and does not extend to the discovery of the manner in which the defendant's case is to be established, or to evidence which relates exclusively to his case. The party applying, therefore, to a court of law for an order to inspect, who is in the same situation as a plaintiff in equity, must show, first, what is the nature of the suit, and the question to be tried in it; and it seems also that he should depose, in his affidavit, to his having just ground to maintain or defend it: secondly, the affidavit ought to state, with sufficient distinctness, the reason of the application, and the nature of the documents, so that it may appear that which he is entitled. Evans v. Louis, L. R. 1 C. P. 656.

(b) The applicant must show by his affi. davit that his adversary has some one document in his possession to the production of

an inspection of the documents is asked for the purpose of enabling the applicant to support his own case, not to find a flaw in that of his opponent; and so that the opponent may admit or deny the possession of them. To this affidavit the opponent may answer, by swearing that he has no such documents, or that they relate exclusively to his own case, or that he is, for some sufficient reason, privileged from producing them; or he may submit to show parts, covering the remainder, on affidavit that the part concealed does not in any way relate to the plaintiff's case (c).

As ancillary to the procedure by action must be mentioned the statutory provisions concerning interrogatories (d). A litigant party may now be entitled, by order of the court or a judge, to deliver to the opposite party or his attorney *(provided such party, if not a body corporate, would be [*355] liable to be called and examined as a witness upon such matter), interrogatories in writing upon any matter as to which discovery may be sought, and require such party, or, in the case of a body corporate, any of the officers of such body corporate, within ten days to answer the questions put by affidavit, to be sworn and filed in the ordinary way (e). The application for leave to deliver interrogatories is usually disposed of on summons before a judge at chambers, who, on production of the proposed interrogatories when the summons is heard, determines in the first instance whether they are such as ought to be allowed or not.

The courts have a general discretion as to the allowance of interrogatories, though they will be guided in exercising it by the principles on which discovery is allowed in equity. Much doubt has however existed as to whether interrogatories can be put the answers to which might tend to criminate the party interrogated. The only intelligible rule upon the subject deducible from the cases seems to be, that when the interrogatories are bona fide framed for the purpose of discovery, and are relevant to the matter in issue, they may be allowed, although the answers to them may, if answered in one way, tend to criminate the party answering, leaving to such party the option of refusing to answer upon that ground. But where such interrogatories are sought to be put, the court or the judge at chambers will require a stronger case to be made out for allowing them than is ordinarily requisite, and such interrogatories will not be allowed on the common affidavit only, but some special circumstances must be laid before the judge to induce him to order them (ƒ). We proceed to give some account of an ordinary trial of a cause on issues of fact (f). If there is an issue of law, it is set down for argument at the request of either party, and the demurrer book containing the demurrer, the joinder in demurrer, and the pleadings to which they relate, has to be made up and delivered to the judges as prescribed by the rules of practice (g), and the case then comes on for argument in due course before the court. In the case of issues of fact, the plaintiff makes up "The Issue," as it is termed, in the form (h) given by the practice.

The trial.

(c) Hunt v. Hewitt, 7 Exch. 244.
(d) C. L. Proc. Act, 1854, ss. 51-53.

(e) S. 52 states the nature of the affidavit to be made by and on behalf of the party proposing to interrogate in support of his application for leave to do so.

(f) Day, C. L. Proc. Acts, 3rd ed., pp. 257,

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