RULES OF COURT. contemplated as well as those at Common Law. In Chancery the overruling a demurrer did nothing further than put the defendant to his answer. The former enactment, Common Law Procedure Ord. 28. Act, 1852, s. 89, required that the demurrer should in the margin contain, as the present rule also requires a demurrer to contain, some substantial matter of law intended to be argued, which was held not to compel the party demurring to disclose all the points which he meant to argue, but merely to secure that the demurrer was bond fide (a), and if he stated several grounds, he was not compelled to state on which he relied (b). In Chancery, on the other hand, if a defendant demurred on two distinct grounds, e.g., for want of equity and want of jurisdiction, he should state them both as separate causes of demurrer (c), though it seems there would only be one order in such a case on the demurrers (d). But this rule, founded on or expressed by Consolidated Orders, Order 14, Rule 1, as follows:-"Where any grounds of demurrer are urged in arguing a demurrer beyond the grounds therein expressed, and those grounds which are so expressed are disallowed, the defendant shall pay the same costs as if the demurrer were overruled, although the grounds of demurrer so newly urged may be allowed," did not in fact bind one to set forth more than the very general nature of the grounds of demurrer, e.g., whether the demurrer were for want of equity, for want of parties, for want of jurisdiction, for incapacity of the plaintiff, for multifariousness or the like, thus many demurrers would be perfectly good on this ground in Chancery, which would be held at law as too general; so the ground that the matters disclosed in the plea contain no answer to the declaration was held too general, yet that is the very effect that is stated by saying that the bill is demurrable for want of equity. Notwithstanding the Rule cited, the demurrer ore tenus as it Demurrer ore was called still continued, and any ground of demurrer co-extensive tenus. with the demurrer on record, might be taken and allowed at bar (e), the order being on the defendant to pay the costs of the demurrer on the record (ƒ). It was held, however, at law under the former law that a de- Demurrer not murrer could not be treated as a nullity, however frivolous the a nullity though point taken on record might be, or though no point were stated (g). frivolous. point taken (a) Ross v. Robeson, 3 D. P. C. 779; Braham v. Watkins, 16 M. & W. 77. (b) Whitmore v. Nicholls, 5 D. P. C. 521. (c) Barber v. Barber, 4 Drew. 666. (d) Wellesley v. Wellesley, 4 M. & C. 554-556. (e) Rump v. Greenhill, 20 Beav. 512; Henderson v. Cook, 4 Drew. 306; Barber v. Barber, 4 Drew. 666; Cooper v. Earl Powis, 3 D. G. & Sm. 688. (f) Att.-Gen. v. Brown, 1 Sw. 288; Cooper v. Earl Powis, 3 D. G. & Sm. 688; Mortimer v. Fraser, M. & Cr. 173; Macyntire v. Connell, 1 Sim. N. S. 257; but see Brown v. Douglass, 11 Sim. 283; Newton v. Earl of Egmont, 4 Sim. 574. (g) Lyons v. Cohen, 3 D. P. C. 243. RULES OF Nor was the party demurring precluded from arguing his demurrer because it was delivered without any statement of points (a), the Ord. 28. only course open in such case to the other side was to move the Course Court to set it aside, and the Court would not do that where a open to party objecting plaint was stated that contained anything capable of argument (b). The application might of course have been made either by plaintiff or defendant, as the case might be (c). Where demurrer to a replication to a plea to the whole declaration was set aside, judgment was signed on the whole record, though there were other pleas to the whole (d). to demurrer. Setting aside demurrer on frivolous point sufficient to state that it was set aside On setting aside a demurrer on the ground that the point of law taken on it was frivolous, it seems it was sufficient if the rule stated it to be set aside for irregularity (e), but it was said that a frivolous demurrer was not merely an irregularity, but an improper for irregularity. proceeding, which the Court might set aside at any time, and in one case it was set aside after time obtained for joinder in demurrer (ƒ). The pleadings must have been set out in the affidavit, or the rule drawn up on reading "them, otherwise the Court could not look at them (g). In the Exchequer the Rule might be framed so as to become absolute unless cause were shown before a particular time (h). Where a Judge had set aside a demurrer on this ground, the Court were very averse to interfering (i). Demurrer to be delivered as other pleading. Demurrer and defence where combined, and needed to be so of further pleadings. 3. A demurrer shall be delivered in the same manner and within the same time as any other pleading in the action. The time for demurring is thus eight days after statement of claim, three weeks after statement of defence, and four days after reply on subsequent pleading. 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 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 (a) Lacey v. Umbers. 3 D. P. C. 732 (b) Chevers v. Parkington, 6 D. P. C. 75; Edwards v. Greenwood, 5 B. N. C. 476; see Tallis v. Tallis, 21 L. J. Q. B. 269; 1 E. & B. 397, n. a. (c) Cutts v. Surridge, 9 Q. B. 1015. (d) Tucker v. Barmsley, 16 M. & W. 54. (e) Jackson v. Cawley, 2 Jur. 207. (f) Cutts v. Surridge, 9 Q. B. 1015; but see Norton v. Mackintosh, 7 D. P. C. 529. (g) Howorth v. Hubbersty, 3 D. P. C. 455; Hamer v. Anderton, 9 D. P. C. 119; Danieli v. Lewis, 1 Dowl. N. S. 542. (h) Kinnear v. Keane, 3 D. P. C. 154. (i) Lane v. Ridley, 10 Q. B. 479. opposite party, he shall combine such demurrer and other RULES OF pleading. COURT. Ord. 28. for leave. 5. If the party demurring desires to be at liberty to plead Party desiring as well as to demur to the matter demurred to, he may, demur to same to plead and before demurring, apply to the Court or a Judge for an order matter to apply 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. The Common Law Procedure Act, 1852, sect. 80, was more 15 & 16 Vic. precise in the conditions annexed to the grant of this power; it c. 76, s. 80. required, if the Judge asked it, an affidavit on the part of the defendant of the truth of the matters intended to be pleaded, as well as of the defendant's belief that the defence was good at law, his belief of his right to traverse any matters he proposed to traverse, and a submission to the discretion of the Court which issue should be first disposed of. And it has been held that if he propose to traverse as well as demur, and the matters to be traversed lay within his own knowledge, he might be required to swear that the matters he proposed to traverse were untrue (a). And even where the affidavit was sufficient, the Court was not bound to grant leave, it was purely discretionary even then (6). Where leave was granted, and judgment was given against an earlier pleading of the demurring party, the Court would not, at the instance of the successful party, rescind the order for a traverse, for they held that it could not be certain their judgment in the demurrer might not be reversed (c). The words "disposed of" have reference merely to the Court in which the action is brought, not to proceedings in error (d). The new rule is, however, much wider than the old, and Rule enlarged. allows a much more varied order, as may be convenient. 6. When a demurrer either to the whole or part of a When demur pleading is delivered, either party may enter the demurrer rer delivered, either party for argument immediately, and the party so entering such may enter it demurrer shall on the same day give notice thereof to the immediately, other party. If the demurrer shall not be entered and notice and give notice. thereof given within ten days after delivery, and if the party (a) Lumley v. Gye, 22 L. J. Ex. 9, see note (7) to Platt v. Else, 22 L. J. Ex. 192; Price v. Hewett, 8 Ex. 146. (b) Thompson v. Knowles, 24 L. J. Ex. 43. (c) Sheehy v. The Professional Life Assurance Co., 13 C. B. 801. (d) Lumley v. Gye, 2 E. & B. 216. for argument If not entered RULES OF whose pleading is demurred to does not within such time serve an order for leave to amend, the demurrer shall be held Ord. 28. sufficient for the same purposes and with the same result as within ten days to costs as if it had been allowed on argument. and party demurred to do not in mean The latter part of this rule seems modelled on, and much to the time serve order same effect as Consolidated Orders, Order 14, Rules 14 and 15, save that the time limited is shortened to an even term of ten days. for leave to amend, demurrer to be held good. Pleading de murred to not 7. While a demurrer to the whole or any part of a pleading is pending, such pleading shall not be amended, unless by order of the Court or a Judge; and no such order shall murrer with be made except on payment of the costs of the demurrer. to be amended pending de out leave. On demurrer 8. Where a demurrer to the whole or part of any pleading allowed, party 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. demurred to to pay costs of demurrer. Semble, reverses old rule in many cases. On demurrer to whole state ment of claim This rule, if fully enforced on every occasion, will reverse the Rule in Chancery mentioned above, Consolidated Orders, Order 14, Rule 1; for suppose a demurrer ore tenus allowed, the demurrer on the record being held to be bad on the grounds there urged, it is clear under the former rule costs would be against the defendant demurring, but it is submitted must under this rule be given for him. It is true that the condition is inserted, unless the Court shall otherwise direct, and that the rule is very like Consolidated Orders, Order 14, Rule 13; but in this rule the demurrer allowed on argument must clearly be the actual demurrer on the record, and no demurrer on terms or on other grounds than alleged on the record. But in fact the words "unless the Court otherwise order," leaves the whole matter in the discretion of the Court (a), and takes away the value of the rule, as a rule, almost entirely. Similar remarks apply to the next rule. 9. If a demurrer to the whole of a statement of claim be allowed, 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 murring whole Court shall otherwise order. allowed, plaintiff to pay to defendant de costs of action. This rule was virtually as to Chancery, involved in Consolidated Orders, Order 14, Rule 13 also, and under that rule an order (a) Schneider v. Lizardi, 9 Bea. 461. COURT. allowing a demurrer with costs, carried with it the costs of a pend. RULES OF ing motion (a). And where a motion for an injunction stood over at the request of a defendant, who had filed a demurrer which was Ord. 28. allowed on appeal, and plaintiff ordered to pay the costs of demurrer and costs of suit, it was held that the costs incurred on the motion were costs of suit (b). murred to to be 10. Where a demurrer to any pleading or part of a plead- Where demurrer allowed, ing is allowed in any case not falling within the last preced- the part of ing Rule, then (subject to the power of the Court to allow pleading dean amendment) the matter demurred to shall as between deemed struck the parties to the demurrer be deemed to be struck out of out as between the pleadings, and the rights of the parties shall be the parties to desame as if it had not been pleaded. murrer. 11. Where a demurrer is overruled, the demurring party Where deshall pay to the opposite party the costs occasioned by the murrer overdemurrer, unless the Court shall otherwise direct. This rule, as to Chancery, was ordered heretofore by Consolidated Orders, Order 14, Rule 12. ruled, demurring party to pay costs of demurrer. murrer over ruled, Court 12. Where a demurrer is overruled, the Court may make Where desuch order and upon such terms as to the Court shall seem right for allowing the demurring party to raise by pleading may order any case he may be desirous to set up in opposition to the party to raise matter demurred to. demurring by pleading case against murred to. This rule which is necessitated, one might almost say, by the matter defact that the rules have to do with equity procedure as well as with that at common law, seems at the same time to do away with the exigency of Rule 5, though it may be convenient to have both forms of procedure. 13. A demurrer shall be entered for argument by deliver- Form of entering to the proper officer a memorandum of entry in the Form ing demurrer No. 29 in Appendix (C). for argument. ORDER XXIX. DEFAULT OF PLEADING. Ord. 29. 1. If the plaintiff, being bound to deliver a statement of If plaintiff claim, does not deliver the same within the time allowed for (a) Gladstone v. Ottoman Bank, 1 N. R. 512. (b) Finden v. Stephens, 12 Jur. 319, overruling S. C. 11 Jur. 898. bound to de liver statement of claim do not deliver same in |