abolished. 42. No rule to plead shall be necessary, and the requisi- Rule to plead tion to plead contained in the summons and plaint shall be 15 16 Vict. sufficient for that purpose. c. 76, s. 62. pleading, in jurisdic 43. Where the defendant is within the jurisdiction, the Time for time for appearance and defence to the summons and plaint Pere defenshall be twelve clear days from the days of the service dant is withthereof (k), exclusive of holidays, or eight days from the tion, to be service of a notice of filing the summons and plaint, which- twelve days. ever period shall last expire, unless the Court or a Judge shall extend the time (kk); and the days for appearing to said summons and plaint shall run as well in vacation as in Term time, excepting the days from the first day of August to the twentieth day of October inclusive. fence. (k) It was held by the Court of Common Pleas in Churchward v. Gra- Time for ham, that the plaintiff could not mark a judgment till after the expiration of filing dethirteen clear days from service. However, in Boyd v. Nethery, 10 Ir. C. L. R. 369, the Court reconsidered its former decision, and held that a judgment marked on the thirteenth day after service (exclusive of the day of service) was regular. The time during which proceedings are stayed does not count in the time for pleading: Day's C. L. P. Act, 3rd ed., p. 66; and where the Where protime for pleading has expired at the time of the making of the order, the ceedings stayed. plaintiff cannot mark judgment till the day after that on which the stay is removed (Decker v. Thompson, 3 B. & P. 319); with which compare Hiffernan v. Lavelle, 2 B. & P. 363. And see ante, sect. 39; and the 54th and 57th G. O., 1854. (kk) Where an order giving the defendant "a week's further time to plead" is made, the week does not begin to run until the ordinary time for pleading has expired (Brady v.Fickering, 2 Ir. L. T. 196). ter amend 15 & 16 Vict. 44. Where an amendment of any summons and plaint Time for hereby directed to serve as a declaration is allowed, no new pleading afrequisition to plead thereto shail bé necessary, but the de- ment. fendant shall be bound to plead to the amended pleading c, 76, 8, 90. within the time specified in the original requisition, or within two days after notice of the amendment, whichever shall last expire, unless otherwise ordered by the Court or a Judge; and in case the amended summons and plaint had been pleaded to before amendment, and is not pleaded to de novo within two days after notice of the amendment, or such other time as the Court or a Judge shall allow, the defence originally pleaded thereto shall stand and be considered as pleaded in answer to such amended summons and plaint (1). amendment (1) Under the 40th G. O. of 1854, no amendment of a writ or pleading can How an be made except by consent or order of the Court on motion, unless authorized by sections 87 and 89, post. made. Time to plead. Where the copy amend ed. Where writ amended. Copies to be served. Omission to It should be borne in mind, that where the copy of the summons and plaint only is amended the Statute does not apply, and the defendant has twelve days to plead after service of the amended copy; and in case a judgment is marked before the expiration of such time, it will be set aside (Holdbrooke v. Dymoke, Ir. R. 2 C. L. 674). On the other hand, where the plaint itself is amended, the defendant must take care to plead within the time limited by the Statute, and if having pleaded to the plaint before amendment he files a new set of defences after the time limited, such defences will be set aside (Banks v. O'Sullivan, 2 Ir. Jur. N. S. 233). And in Jones v. Jeffreys, 7 Ir. C. L. R. 13, it was held that when a plaint is amended after demurrer, the defendant has twelve days to plead. See also Smith v. Kearne, 1 D. & L. 992; 12 M. & W. 715. 45. Notice of filing such defence, together with a correct copy thereof, shall be served on the plaintiff's attorney, or on such plaintiff in case no attorney shall be employed; and such defence shall be considered as filed as on the day on which such notice and copy shall be served, pursuant to the provisions of this Act (m). (m) When no notice or copy has been served, the plaintiff may apply to deliver copy. the Court for liberty to mark judgment (Banks v. Jordan, 7 Ir. Jur. N. S. 28). However, where a defendant omitted, for some days after filing his defence, to serve a copy thereof, but did so before the plaintiff had given notice of a motion for liberty to mark judgment, it was held that the defence became regular as soon as the copy was served, and the plaintiff could not afterwards object to it (Moore v. M'Elroy, 13 Ir. C. L. R. App. 49). In Connolly v. O'Neill, Ir. R. 1 C. L. 568 (an action of ejectment), the Court, under similar circumstances, allowed the defence to stand. Delivery of an incorrect copy. Further particulars. The attorney is responsible for the correctness of the copies of the pleadings furnished by him; and in case they are incorrect, he will be ordered personally to pay any costs occasioned thereby (Alexander v. Morrison, 2 Ir Jur. N. S. 26; Phibbs v. Tickell, 3 Ir. Jur. N. S. 117; M'Donnell v Evans, 7 Ir. C. L. R. 401). 46. The Court or a Judge may, in any case, by an order made on motion, direct a further or more detailed particular of the items of demand or credits referred to in any summons and plaint, or of any payments or set-off referred to in any defence to be furnished (n); and in any action for an injury to person or property, the Court or a Judge may order plans of the place in which the injury is alleged to have been committed, or as to which any justification is pleaded, to be given or exchanged between the parties; and the Court or a Judge may extend the time for pleading or making up the issue, in consequence of the necessity of such particulars or further particulars, on such terms as shall appear to be just; and where any party shall require to amend his particulars, he shall apply to the Court or a Judge for the purpose (o). order further (n) The Court possesses a general jurisdiction applicable to every species Jurisdiction of action, and not confined to cases where the plaintiff is obliged by Statute of Court to to indorse particulars, to order the plaintiff to furnish the defendant with particulars. further particulars, if the circumstances of the case and the course of justice require it (Early v. Smith, 12 Ir. C. L. R. App. 35); and the action will be stayed until such particulars are given. obtained. In order to obtain an order, the defendant must satisfy the Court by affi- How order davit that he has not had sufficient means, from the statements in the plaint, of informing himself of what the plaintiff's demand is, and that it is necessary, for the purpose of framing his defence, to have more specific information than what is there contained (Smith v. Hornsby, 1 Ir. Jur. N. S. 184; Ardrey v. Gardner, 11 Ir. Jur. N. S. 47). The affidavit must in general be made by the plaintiff, or, under special circumstances, by his attorney (Butson v. Allman, Hay. & Jon. 746). made. The application should be made before defence (Blackwood v. Jones, 4 Ir. When appliL. R. 328). Under special circumstances it may be made after; Ch. Arch. cation to be Pr. 12th ed. 1454; and see Nolan v. Shea, 1 Ir. L. T. 404, where such an order was made after defence pleaded in an action of slander, the plaintiff not appearing. defective. In cases where the Statute expressly requires an indorsement of parti- Where inculars, the Court will order a defective indorsement to be amended without dorsement requiring such an affidavit. (Mahoney v. Falvey, 7 Ir. Jur. O. S. 132, per Green, B.; Neville v. Gollock, 6 Ir. Jur. O. S. 232). So also, although in ordinary cases a defendant will not get the costs of a motion for further Costs of particulars, unless he has made a preliminary application, yet in Neville v. Gollock, ubi supra, it was held that it was not necessary, in order to carry costs, that a preliminary application should have been made, the action being for a liquidated demand; and see O'Neill v. Orr, 2 Ir. L. R. 287. motion. The making of the order is a matter for the discretion of the Court; and Making of an no order will be made, even in cases where the action is for a liquidated de- order a matter of dismand, if the plaintiff is unable to give the particulars (Curly v. Clarke, cretion. 8 Ir. Jur. N. S. 132; King v. Armstrong, Ir. R. 2 C. L. 495), which latter case was an action of ejectment. Particulars may be ordered in any description of action. Thus, in Sparkes When order v. Blacquiere, 6 Ir. L. R. 126, n., where the action was brought for breach will be of a covenant that a policy of assurance was good valid and effectual, and made. the breach was alleged in general terms, the plaintiff was ordered to furnish particulars of the breach complained of. In Wildridge v. Clarke, 11 Ir. In actions of L. R. 589, the action being brought for breach of covenant, by ob- covenant. structing the tenants of the plaintiff in the enjoyment of an easement, the plaintiff was ordered to furnish particulars of the time and nature of the obstructions, and the names of the tenants obstructed. In actions for not repairing, it is the practice to order particulars of the non-repairs: Ch. Ar. Pr. 12th ed. p. 1452. And in Abbott v. Woodroffe, 1 Ir. Jur. N. S. 50, the plaintiff was ordered to furnish particulars of the credits allowed. So also in Of trespass, actions of torts, particulars of the times and places of the alleged trespasses or for a and nuisances will be ordered (R. v. Flower, 7 Dowl. 665). In an action of slander, particulars will be ordered of the occasion on which the words were of slander. spoken, but not of the names or descriptions of the persons present (Early v. nuisance. Particulars of fraud. Of special damage. Of defence of plene administravit. Operation of order. Amending particulars. Inspection and examination of premises or chattels may be ordered by the Court on behalf of either party c. 125, s. 58. 17 & 18 Vict. Smith, 12 Ir. C. L. R. App. 35; Slator v. Slator, 8 Ir. Jur. N. S. 132), As the order for further particulars, when obtained by a defendant, operates as a stay of proceedings, the defendant cannot, in case the plaintiff fails to comply with the order, rule him under the 38th or 106th sections of the Act (Wright v. Graves, Batty, 331: Burgess v. Swayne, 7 B. & C. 435). (0) It is irregular to deliver further particulars, or to amend the particulars already given, without the leave of the Court; but leave will, in general, be given upon terms. Such leave may be obtained after the withdrawal of a notice of trial (Frazer v. Montgomery, 11 Ir. L. R. 28); or at the trial (Savage v. Canning, Ir. R. 1 C. L. 434); or after an abortive trial (Kinnears v. Evans, 1 Ir. Jur. O. S. 128). And see Ch. Arch. Pr., 12th ed., p. 1457. 47. In any case in which it shall appear to the Court or Judge that it would be necessary, for the of ascerpurpose taining the truth of any matter in dispute between the parties in the action, that an inspection or examination of any premises or chattels in the possession or power of either party, and in respect of which or some right or injury connected with which the said action shall be brought, should be had by the opposite party, his attorney, agent, witnesses, or by the jury (p), it shall be lawful for such Court or Judge to order that the party in whose possession or power the same shall be shall permit an inspection and examination of the said premises or chattels by the jury, or by such person or persons on behalf of the party applying, and at such times and under such regulations, as to the said Court or Judge shall seem fit (q). (p) As to obtaining a view jury, see post, section 116. (9) When an order is made under the above section, it may provide for the removal of obstructions to inspection (Bennett v. Griffiths, 3 E. & E. 467). It may be made pending a demurrer (Boylan v.Dublin and Belfast Junction Railway Co., 7 Ir. Jur. O. S. 382). As to the form of the order, see Ennor v. Barwell, 8 W. R. 300; on appeal, 1 De G. F. & J. 529. With respect to the general form and character of plead- Form of ings: pleading after defence. 48. There shall be no further pleading after the defence No pleading (r), except a demurrer (s) to the defence or a replication to a defence of set-off (t) or plea of matter occurring subsequently to the commencement of the action (u), unless by the special leave of the Court or a Judge on an application to allow such further pleading (v), which shall only be allowed in case the real question or questions, whether of fact or law, between the parties cannot conveniently be raised and put in issue by the amendment of the previous pleadings (w). (r) When the defence is filed there can be no further pleading, except in the cases mentioned in the section, without the leave of the Court; but a demurrer may, notwithstanding the language of the section, be filed to the replication or other subsequent pleading without leave (O'Brien v. Cecil, 4 Ir. C. L. R. 271), in which case it was held that the 80th section of the Act limits the operation of the present section. Sections 57 and 59, post, provide for cases where it becomes necessary to reply, rejoin, &c., several matters after defence, or to reply and demur. The language of the section is general, and applies to every description of pleading, including new assignment. As to the form of the replication, &c., see post, sects. 56 and 57, and the notes thereto. When leave demur must to plead or be obtained. If a defendant wishes to withdraw his defence, or a plaintiff his replica- Withdrawing tion, it would appear that he cannot file a retraxit without the leave of the defence. Court, which will only be granted on terms (Bergin v. White, Ir. R. 4 C. L. 306; Londonderry Commissioners v. Ballantine, 2 Ir. Jur. N. S. 367; Sterne v. Jones, 9 Ir. C. L. R. App. 31). As to withdrawing a defence after notice of trial is served and paying money into Court, see Brown v. Julian, 1 Ir. L. T. 156. (8) Vide O'Brien v. Cecil, ubi supra. defence of set-off. (1) A replication to a set-off amounting to the general issue will be set Relying to a aside (Bergin v. Wrafter, 7 Ir. Jur. O. S. 42); and if the plaintiff wishes to reply several matters which he might have pleaded without leave under section 58, had the defendant brought an action, leave must, nevertheless, be obtained (Banahan v. Wallace, 12 Ir. C. L. R. App. 13). (u) See section 73, post. (v) A replication filed without leave will be set aside (Mulligan v. Chute, 6 Ir. Jur. O. S. 319). After the passing of the Act, it was held that leave to file a replication might be obtained without notice or affidavit (Huston v. Wallace, 3 Ir. C. L. R. 225); but this has been since overruled, and the application must be upon notice, and must generally be supported by an affidavit (Dee v. Dee, 7 Ir. C. L. R. 323; Dunne v. Plunket, 7 Ir. Jur. How leave to reply to be obtained. |