motion, except in particular cases, nevertheless where a plea pleaded is beyond doubt a frivolous or sham plea, they will exercise their authority by so doing (n). Where in an action on a bill of exchange by the indorsee, against the acceptor, the defendant set forth in his plea a number of facts, calculated to perplex the plaintiff, the Court, on an affidavit of its falsehood, no cause being shown for pleading it, set it aside (o). CHAPTER XXXIV. pleadings framed The Common Law Procedure Act (p) gives the Court a statutable jurisstatutable jurisdiction in these and other cases by enacting, diction over that if any pleading be so framed as to prejudice, embarrass to embarrass. or delay the fair trial of the action, the Court, or a judge, may strike out or amend it. The use of the general replication, commonly called de REPLICATION injuriâ, in actions of debt and assumpsit, was a novelty DE INJURIA introduced by the special pleas made necessary in those SUPERSEDED. actions. The general rules regulating its employment in an action of tort were laid down in Crogate's case (q). Those rules, originally capricious and indefinite, when applied to actions founded on contract, introduced a great deal of refinement, of which it was difficult to perceive the practical utility, and which often defeated justice. These subtleties have all been swept away by the Common Law Procedure Act of 1852, which not only enables a defendant to deny all the allegations contained in a plea, but, where necessary, to reply double. To a plea denying consideration, a replication simply To plea denying averring consideration is good (r). And even if the plain- consideration. tiff, in his replication, set out the particular consideration, and concluded to the country, under the old form of pleading, he was not bound to prove it (s). (n) Horner v. Keppel, 10 Ad. & E. 17; 2 P. & D. 234, S. C. (0) Miley v. Walls, 1 Dowl. 648; and see Horner v. Keppel, 10 Ad. & Ell. 17; 2 P. & D. 234, S. C.; Knowles v. Burward, 10 Ad. & Ell. 19; 2 P. & D. 235, S. C.; Balmanno v. Thompson, 6 Bing. N. C. 153; 4 Jurist, 43; 8 Scott, 306, S. C.; Bradbury v. Emans, 5 M. & W. 595; 7 Dowl. P. C. 849, S. C.; Emanuel v. Randall, 8 Dowl. 238; Midford v. Finden, 9 Dowl. 813. (p) 15 & 16 Vict. c. 76, s. 52. (r) Prescott v. Levi, 3 Dowl. (8) Low v. Burrons, 2 Ad. & E. 483; 4 N. & M. 366, S. C.; Batley v. Catterall, 1 M. & Rob. 379. CHAPTER Pleading an estoppel. Distributive replication. When a party to a bill, as an acceptor or indorser, is concluded from denying a fact, as, for example, the drawing or a prior indorsement, the estoppel may be replied, or it seems that the plaintiff may demur (t). For an estoppel in pais need not be pleaded (u). Where one plea is pleaded to several notes or bills, the plaintiff may often reply by one replication, which will be construed distributively (x). (t) Sanderson v. Collman, 4 M. & G. 209; Armani v. Castrique, 13 M. & W. 443. (u) Vaughan v. Matthews, 18 L. J., Q. B. 191. (a) Wood v. Peyton, 13 M. & W. 30. CHAPTER EXCEPT in actions for personal wrongs the party on whom lies the burthen of proof is entitled to begin. But if an error in this respect be committed at the trial, a new trial RIGHT TO will not therefore be granted, unless injustice has been BEGIN. done (a). Where, in an action on a bill of exchange, the only issues lying on the plaintiff arise on the common counts, the plaintiff is not entitled to begin, unless he propose to give evidence on those issues (b); and merely using the bill as evidence under the common counts will not be sufficient. A defendant will not entitle himself to begin, by admitting all the issues that lie on the plaintiff (c). (a) Cannam v. Farmer, 3 Exch. 698. Dowl. 722; 2 C., M. & R. 103, (c) Pontifex v. Jolly, 9 C. & CHAPTER Splitting plaintill's case. Competency of witnesses. Declarations at the time of making the instrument. Declarations by prior parties. A plaintiff cannot split his case (d), except by first proving the issues which lie on him, and no more. But having done that, he may reserve his evidence applicable to the issues lying on the defendant. Many nice distinctions formerly existed as to the competency of witnesses in actions of bills of exchange. To review the decisions and the various statutable enactments by which the legislature gradually felt its way to a more liberal system, would be more appropriate in a treatise on the law of evidence. It may suffice to observe here, that not only all the parties to a bill, but the plaintiffs and defendants themselves, in the action or suit, as well as their husbands and wives, are now all rendered competent witnesses (e). In an action by the indorsee against the maker of a note the declarations of the payee at the time of making it are evidence as part of the res gestæ (ƒ). It has been held, that declarations by the holder of a negotiable instrument, made whilst he was holder, are evidence against a plaintiff who claims under him and stands on his title (g), in the same manner as declarations made by a former owner of an estate respecting his own title, whilst he was in possession, are evidence against a subsequent owner (h). But there is an obvious distinction between the case of an assignee of land or other property and the ordinary assignee of a negotiable instrument. The former has, in general, no title either at law or in equity, unless his assignor had, but the latter may, as we have seen, have a very good title, though his assignor had none at all. Accordingly, it has been decided that unless the plaintiff on a bill or note stands on the title of a former holder, the declarations of such former holder are not evidence against him (i). But if he does stand on the title of a prior holder, as if he have taken the bill overdue or without consideration, then the (d) Jacobs v. Tarleton, 17 L. J., Q. B. 194. (e) 14 & 15 Vict. c. 99, and 16 & 17 Vict. c. 83. (f) Kent v. Lowen, 1 Camp. 177, 180. (g) Pocock v. Billing, 2 Bing. 269; Ry. & M. 127, S. Č. (h) Woolway v. Rowe, 1 Ad. & E. 114; 3 N. & M. 849, S. C. declarations of that prior holder under whom he claims, and on whose title he stands, are evidence against him. CHAPTER sion on record. It has been held, that a jury can draw no inference from Effect of admisan admission on record. "The pleadings," says Alderson, B., "are not before the jury, but only the issue" (k). the Court of Queen's Bench have held otherwise (7). But Where there was no attesting witness, the signature to a Proof of signabill might always have been proved by any person who has ture. seen the party write, or has received letters from him. Where there was an attesting witness, he must always have been called, unless dead, insane, or out of the jurisdiction of the Court (m). But now by the 17 & 18 Vict. c. 125, s. 26, it is not necessary to call the attesting witness, except in those cases where his attestation is essential to the validity of the instrument (n). An agreement that certain shares are to be held as a col- Collateral lateral security for a bill is evidence to prove an allegation security. that any sum received by the holder should be satisfaction pro tanto (o). defendant. It was at one time held, that there must be some evidence Identity of of the identity of the person whose handwriting is proved as the defendant's with the real defendant, and that mere correspondence of christian and surname is no evidence of identity (p). But the inconvenience of such a doctrine soon compelled the Courts to retrace their steps. "The transactions of the world," says Lord Denman, "could not go on, if such an objection were to prevail. It is unfortunate that the doubt should ever have been raised, and it is best that we should sweep it away as soon as we can” (q). (k) Edmunds v. Groves, 2 M. & W. 642; 5 Dowl. 775, S. C. (1) Bingham v. Stanley, 2 Q. B. 117; see Malpas v. Clements, 19 L. J., Q. B. 435. In Robins v. Maidstone, 4 Q. B. 815, the Court of Q. B. corrected the language attributed to them in Bingham v. Stanley; and see Smith v. Martin, 9 M. & W. 304; Fearn v. Filica, 7 M. & G. 513. (m) The attesting witness must have been called, though the attestation were on the back of the bill. Richards v. Frankum, 9 C. & P. 221; and though he were B. blind, Crank v. Frith, 2 Moo, & (n) See ante, as to the cases in (0) Malpas v. Clements, 19 L. J., Q. B. 435. (p) Whitelock v. Musgrove, 1 C. & M. 511; Jones v. Jones, 9 M. & W. 75; 11 L. J., Exch. 265; Bell v. Gunn, 11 L. J., C. P. 57. As to identity of first indorser with drawer, see Smith v. Moneypenny, 2 Moo. & Rob. 317. (g) Sewell v. Evans, 4 Q. B. 626; Roden v. Ryde, ibid.; FF |