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which the writ is to be filed.

ciently legible, and in a fit state and form to be received as a pleading of the Court (x); provided also that in case such summons and plaint shall not be filed within the time aforesaid, it shall be sufficient, for the purpose of enforcing a defence thereto after the filing of the same, to give notice of the filing to the defendant (y), and such defendant shall have eight days from the service of such notice to file his defence thereto, but in no case shall the plaintiff be at liberty to proceed to enforce a defence after the expiration of six months from the service of such summons and plaint (z).

(s) This and the following section provide for the filing of the summous and plaint. It should be filed four days before the time for pleading expires: note (v). If not filed within that time, the plaintiff must serve the defenTime within dant with notice of filing, who will then have eight days to plead: note (y). If not filed within two months, the defendant may proceed to obtain a judgment of non pros. against the defendant (sect. 38, note (b)); and if not filed within six months, the plaintiff will be not able to proceed further with the action, although the cause is not even then out of Court: note (z). As to how time is to be computed, and how to proceed in the case of several defendants, see infra.

Where original writ destroyed.

Filing copy.

How time reckoned.

Where several defendants.

Marking judgment

when writ filed.

(1) Where the defendant destroyed the original writ, the Court allowed a new writ to be issued and filed, and made a conditional order for leave to mark judgment (Brunton v. Doyle, Ir. R. 2 C. L. 86).

() In case any doubt should exist as to whether the service is good, it will be prudent to file a copy only, as it will then be unnecessary to apply to the Court for leave to take the writ off the file for the purpose of effecting fresh service.

(v) The days from the 1st August to the 20th October, inclusive, are not to be reckoned in the time for pleading (sects. 43, 232); and, therefore, not in the time for filing the plaint for the purpose of enforcing a defence without notice; neither can the plaintiff file the plaint during that period (sect. 232).

In the case of several defendants, the writ cannot be filed until the last of them has been served; and if at that time there be not four days to run of the time for pleading of the defendants previously served, notice of the filing must be served upon them (Delmege v. Lloyd, 4 Ir. C. L. R. 245). In actions of ejectment, it is now provided by the 3rd G. O., 1856, that the filing of the writ of ejectment, or copy, against one defendant served, shall be a sufficient filing as against the defendants subsequently served.

When the plaint is regularly filed, there is nothing in the Act or Orders to prevent the plaintiff from marking judgment in case no defence is filed, no matter what time may have elapsed. The 178th G. O. does not apply to such a case. Where, however, a year has elapsed, the plaintiff will not be allowed to mark judgment without some intimation to the defendant. In Fleming v. Dogherty, Ir. R. 3 C. L. 571, the Court gave a conditional order for leave to mark judgment unless cause were shown in ten days; and in Bell v. Bell, Ir. R. 1 C. L. 571, the plaintiff having taken out a rule for liberty to proceed by analogy to the 178th G. O., the Court refused to set the rule aside.

Where the writ is amended by adding a new defendant, pursuant to sect. 89, the Court will not allow the writ to be taken off the file for the purpose of serving such new defendant (Conolly v. Evans, 7 Ir. Jur. O. S. 182). The side-bar order, giving leave to amend in such a case, should direct that service of an attested copy of the writ on the new defendant be deemed good service.

(c) The writ does not, properly speaking, become a "pleading" until Effect of filed. Hence it would appear that before that time a motion to set aside a filling. summons and plaint as embarrassing or irregular is premature (O'Brien v. Taylor, 2 Ir. Jur. N. S. 53). The question was also discussed in Doran v. Chancellor, Ir. R. 2 C. L. 127, but not decided.

(x) See the 34th G. O., 1854.

notice of

(y) The Court will substitute service of the notice of filing (Byrne v. Sher- Service of Lock, 8 Ir. C. L. R. Ap. 32). Where the pleading was not filed, though filing. notice of filing was given, the Court refused to set aside a non pros. (Lewis v. Boyce, 2 Leg. Rep. 315).

() The six months after the expiration of which the plaintiff is pre- How the six cluded from taking proceedings to enforce a defence are inclusive of the months computed. days from the 1st August to the 20th October, notwithstanding that the plaint cannot be filed on those days (Mullen v. Bonjor, 5 Ir. C. L. R. 475). As to whether the time during which proceedings are stayed is to be reckoned, see Johns v. Sanders, 5 D. & L. 49; Ross v. Green, 10 Ex. 891. If the last day for filing the plaint fall on a Sunday or holiday, it is doubtful whether the plaint can be filed on the next day. See the 6th G. O., 1854, and Blake v. Davis, Bl. D. & O. 115; Evans v. Jones, 2 B. & S. 45. Under the old practice, if the plaintiff did not declare within a year after the return of the writ, the cause was out of Court; and in Thompson v. Armstrong, 1 Ir. Jur. N. S. 335, it was held by the Court of Common Pleas that, under the above section, a cause was out of Court if the plaint were not Effect of not filed within six months after service, and therefore a judgment of non pros. filing. could not be entered against the plaintiff after that period. This decision, however, has been overruled in Doran v. Chancellor, 17 Ir. C. L. R. 140; Ir. R. 2 C. L. 127, where it was held that, if another action be brought against the defendant after the expiration of the six months, he may plead action pending. On the other hand, after that period, the plaintiff can go no further with the action, and the only course he can adopt is to discontinue, and bring a fresh action. As to proceeding to mark judgment after the expiration of six months in cases where the plaint has been regularly filed, see note (v), supra.

summons

38. In case the plaintiff shall neglect to file the original or Rule for costs duplicate summons and plaint, or copy thereof, within two of not filing months (a) after the service thereof on the defendant, unless and plaint. the time for filing such summons and plaint shall have been extended, such defendant may, on an affidavit of the service thereof and a certificate of no summons and plaint, or copy, filed, enter a rule that the plaintiff do file his summons and plaint within four days after the service thereof (b), or pay to the defendant such sum as shall be fixed by the taxing

How time reckoned.

When defendant may rule plaintiff to tile plaint.

Where several defen

dants.

Appearance and defence.

Appearance and defence to be filed together.

officer, subject to the approval of the three Chief Judges of the said Courts, as and for his costs occasioned by being served with such summons and plaint (c), and such order shall be in lieu and stead and have the effect of a judgment of non pros. for not declaring; and in case the plaintiff shall, after the entry of such rule, file his summons and plaint, or copy, he shall pay to the defendant his costs occasioned thereby, upon demand, not exceeding the sum of one pound, or in default thereof the defendant may obtain a rule for the payment of such sum and the costs of such rule.

(a) The days between the 1st August and 20th October, inclusive, are not to be reckoned in this period of two months (sect. 232). In replevin, if the plaintiff does not file the plaint within ten days after service, unless the time for filing be extended, the defendant may proceed to non pros. him; C. L. P. Act, 1856, sect. 100.

(b) As to ruling a plaintiff, see post, sect. 106. As long as the proceedings are stayed the defendant cannot non pros. the plaintiff, and a judgment of non pros. entered up will be set aside with costs (Burgess v. Swayne, 7 B. & C. 485). As to whether the time during which the proceedings have been stayed should be reckoned in the period of two months, see Johns v. Sunders, 5 D. & L. 49. The plaintiff by serving a notice of his intention not to proceed further with his action cannot prevent the defendant from entering up a judgment of non pros. (Fitzgerald v. Power, 1 Leg. Rep. 208). As to setting aside a judgment of non pros. see Cater v. Flattery, 5 Ir. L. R. 175; Bacon v. Maunders, 5 Ir. Jur. O. S. 118.

The section does not in terms provide for the case of several defendants. Under the old practice, if the plaintiff was in default as to all, he might be non-prossed by one on behalf of all (Hamlet v. Bingham, 5 Sc. N. R. 889). But if not in default as to all, the defendant entering up the judgment should enter it up on behalf of himself alone (ibid.). Under such circumstances the plaintiff's course would be to apply to the Court to extend the time for filing the writ.

(c) By a G. O. of the 1st February, 1854, this sum has been fixed at £1 138. 4d., with a further sum of 18s. where execution is issued.

With respect to the appearance and defence to the summons and plaint:

39. The defendant may, within the time specified in the said summons and plaint, or within eight days from the service of the notice of filing the said summons and plaint in manner aforesaid, or at any time before judgment, or within such time as the Court or a Judge may permit (d), file with the pleadings assistant an appearance and defence or demurrer to the said writ of summons and plaint; and such defence may be according to the Form No. 2. in the Schedule B. to this Act annexed (e), and shall contain at foot thereof the

name and registered residence of the defendant's attorney, where the same is pleaded by attorney (ƒ), and where it is pleaded in person the residence of the defendant, and in case such residence shall not be in the city of Dublin, shall specify by the name of the street and number of the house some place within the said city whereat all notices and papers relating to the suit may be served and delivered for the defendant (g).

Within what time defence may be filed. Where time for pleading extended.

(d) When the time for pleading is extended, the defendant may file his defence at any time up to the moment of marking judgment, even though the extended time has expired; and accordingly, where the defendant's attorney came to the office on the morning after the expiration of the extended time, for the purpose of filing the defence, and the plaintiff's attorney came at the same time for the purpose of marking judgment, it was held that the defence should have been received, and a judgment marked under the circumstances was set aside (Robinson v. Woodroffe, 4 Ir. L. T. 181). A defence cannot, however, be filed in an action of ejectment after the Ejectment. expiration of the statutable time (3 G. O. of 22nd January, 1856).

(e) As to the form of the defence, see further, sect. 56, post. When there are several defences, each separate defence must be commenced in a new paragraph; 34th G. O., 1854. As to withdrawing a defence, see post, sect. 48, note (r); and as to pleas in abatement, sect. 56, post, and the 44th G. O., 1854.

Form of the

defence.

The form of a demurrer is given in Schedule B., Form No. 3. As to the Of demurrer. proceedings upon demurrer see post, sects. 80-82; and the 50th and 51st

G. O. of 1854, which provide for the making up of the demurrer books. (f) If the residence of the attorney be omitted, the defence will be irre- Indorsement gular: see Dempster v. Vernon, 6 Ir. Jur. N. S. 366; and the 112th G. O., 1854.

(g) Where a defendant indorsed upon the defence a residence where he was not known, the plaintiff was allowed to serve a notice of motion by posting it at the office of the Court, and at the residence given (Richy v. Crawford, Ir. R. 2 C. L. 434).

40. In any case in which there are mutual debts between the plaintiff and defendant (h), or if either party sue or be sued as executor or administrator, where there are mutual debts between the testator or intestate and either party (i), one debt may be set off against the other, and such matter may be pleaded in bar of the action, or of the further maintenance thereof, or so much of the debt as it covers, and the account upon which it became due shall be alleged as in a summons and plaint for the same debt.

of attorney's residence.

of defendant's resi

dence.

Defence by off

way of set

2 Geo. c. 22. s. 13 (Eng.)

(h) The form of a defence of set-off is given in the schedule to the Act. Set-off. A defence not containing an averment of the defendant's willingness to set off his demand against the plaintiff's claim is bad (Toole v. Ryder, Ir. R. 2 C. L. 652). So also if it omits to aver that the plaintiff "still is" indebted to the defendant (Smith v. Fottrell, 10 Ir. Jur. N. S. 232).

40

When a setoff may be pleaded.

In actions

The defence can be pleaded only where the claims on both sides are liquidated debts, or money demands. It is not applicable where the claim on either side is for unliquidated damages, as a claim under a guarantee, or a contract of indemnity (Morley v. Inglis, 4 Bing. N. C. 58; Atwool v. Atwool, 2 E. & B. 23); and so also upon a suggestion of breaches where the demand is unliquidated (Lysaght v. Farmer, 7 Ir. C. L. R. 404). In an action for use and occupation, the defendant was allowed to plead by way of set-off an agreement by the plaintiff to allow him for improvements, the value of the improvements being averred (Julian v. Loughnane, 8 Ir. C. L. Rep. 138). And see also Anderson v. Currick-on-Suir Gas Co., 3 Ir. L. T. 389. But a set-off cannot be pleaded to an action of ejectment for non-payment of rent (Cahill v. Kearney, Ir. R. 2 C. L. 498).

(i) In an action by an executor for money received by the defendant to by or against the use of the plaintiff as executor, the defendant cannot set off debts due to him from the testator in his lifetime (Rees v. Watts, 9 Ex. 696, 11 Ex. 410); and vice versâ (Mardall v. Thellusson, 6 E. & B. 976).

executors.

Particula s of set-off to

41. In case the defence shall insist upon any payment or be indorsed. set-off, the full particulars of the same shall be indorsed on the said defence and on the copies for service, unless they are so many that they cannot be conveniently introduced therein, in which case they shall be annexed thereto and incorporated therewith by a proper reference (j ).

Particulars of payment

and set-off.

When the Indorsement dispensed with.

(j) See the notes to sect. 11, ante, as to what the indorsement of particulars should in general contain.

The time, mode, and amount of payment should be inserted in the particulars (Bourke v. Scott, 5 Ir. Jur. N. S. 100; Roche v. Colclough, 5 Ir. C. L. R. 538, 539); but if from the nature of the dealings between the parties ac counts of the payments were not kept by the defendant, and it is impossible for him to recollect them, the Court will not require an indorsement (Curly v. Clarke, 8 Ir. Jur. N. S. 132; Dixon v. Toole, 4 Ir. C. L. R. 261). A defendant will not, where general payments have been made, be compelled to particularize to what items of the plaintiff's demand the payments relied on by him are applicable (Kelly v. Hoey, 2 Ir. Jur. N. S. 394). If the defendant neglects to make the requisite indorsement, the defence will be set Consequence aside (Smith v. Gilroy, 7 Ir. Jur. O. S. 47; Russell v. Nelson, 3 Ir. C. L. R. 229). If the plaintiff has already given the defendant credit in the particulars indorsed upon the plaint for any payment, it will be unnecessary to plead it. See ante, p. 10.

of an omission to indorse.

Particulars not part of pleading.

What consti

tutes a payment.

The particulars do not form part of the pleading; and therefore, where the particulars of set off showed that a less sum was due than that mentioned and relied upon in the defence, and the plaintiff demurred in consequence, the demurrer was overruled (Sigsworth v. Farrell, Ir. R. 2 C. L. 321). The particulars should not contain allegations which might be traversed if pleaded (Roche v. Colclough, 5 Ir. C. L. R. 538).

The meaning of payment is, that the debt has been discharged by payment of the exact sum claimed; and where, therefore, to a plea of payment particulars were appended of a much larger sum than that claimed by the plaintiff, the defence was set aside (Gafney v. Killen, 4 Ir. Jur. N. S. 233).

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