When the general issue only is pleaded, it need not be, and seldom is, filed, until just before the trial commences; it is generally written on the writ, as above stated, while the clerk is calling the jury.

As to special pleas, it is a rule of the Supreme Judicial Court,' that in all actions brought there by appeal, the defendant, or tenant, if he intend to plead specially, shall file his plea, within two days after the action is entered, (the day of the entry to be reckoned as one,) unless for reasons stated in the rule, the court, on motion, assign a further time, and if the plea be not filed within the time prescribed in this rule, or that assigned by the court, the defendant loses his right to plead specially, and must plead the general issue, file a general demurrer, or be defaulted.

By the rules, both of the Supreme Judicial Court,2 and Court of Common Pleas,3— when an action shall be continued, with leave to amend the declaration or pleadings, -or for the purpose of making a special plea, replication, &c. if no time be expressly assigned for filing such amendment or pleadings, the same shall be filed in the clerk's office, by the middle of the vacation after the term, when the order is made; and in such case, the adverse party shall file his plea to the amended declaration, or his answer to the plea, replication, &c. by the first day of the term to which the action is continued as aforesaid. And if either party neglect to comply with this rule, his prior pleadings shall be stricken out, and judgment entered of nonsuit or default, as the case may require, unless the

court, for good cause shewn, shall allow further time for filing such amendment, or other pleadings.

2

With these two exceptions, special pleas and all subsequent pleadings may be filed at the convenience of the respective parties, with this restriction, both in the Supreme Judicial Court,' and the Court of Common Pleas, that either party may obtain a rule on the other, to plead, reply, rejoin, &c. within a given time to be prescribed by the court:- and if the party so required, neglect to file his pleadings at the time, all his prior pleadings shall be stricken out, and judgment entered of nonsuit or default, as the case may require, unless the court, for good cause shewn, shall enlarge the rule.

From the pleadings thus made and filed, at their termination, arises the issue of fact or law. There is no other formal making of the issue, -as in the English practice, the pleadings as filed, constituting the only record of the issue, for the purposes of the trial. The next step, therefore, after the pleadings are completed, in our practice, is, the trial, which, together with the subject of verdicts, judgments, and costs, will be considered under their respective heads.

SECT. IV. DEMURRER.

The fourth mode of answering the plaintiff's declaration, is by demurrer, - which is either general or special.

Time of filing. In the Court of Common Pleas,

J

all demurrers to declarations must be filed during the first four days of the return term, and cannot be afterwards. In the Supreme Judicial Court, there is no rule upon the subject.

A demurrer to the declaration, is sometimes used

by agreement of the parties, merely as a form, for the purpose of removing a case from the Court of Common pleas, to the Supreme Judicial Court. This will be considered, in treating of Appeals. It need only be remarked in this connexion, that when so used, it is not subject to the above limitation of time, but is filed at any time the parties may agree.

It will also be observed, that the foregoing rule of the Court of Common Pleas, is confined to demurrers to declarations. - Demurrers to subsequent pleadings, as to the time of filing them, fall within the rules of other pleadings generally, which have been stated under the preceding head of pleas in bar.

Mode of filing. A demurrer, like other pleadings, should be in writing, — signed, and filed with the clerk, and notice given.

At whatever stage of the pleadings, a demurrer is filed, the party, whose pleadings are demurred to, must join in the demurrer. An issue of law is then formed, which is to be tried by the court.

By a rule of the Court of Common Pleas, if in the same cause, there be an issue in fact and an issue in law, the issue in law shall be first argued and determined, unless the court, for good cause, otherwise direct.2

Judgment and costs. 1. For plaintiff. We have

already seen, that on demurrer to a plea in abatement, or to a replication to a plea in abatement, judgment for the plaintiff is not final, but simply that the defendant answer over;'—and that the plaintiff does not recover costs.2

In other cases, judgment, if for the plaintiff, is final, where the amount claimed is a sum certain. But if the action be for damages, in assumpsit, &c. the judgment is interlocutory, and the plaintiff must have his damages assessed by the clerk, or move the court to have them assessed by a jury.

2. For defendant. Judgment on a demurrer, for the defendant, is always final, and he, of course, is entitled to costs.

Withdrawing demurrer. If the decision be against the party demurring, he will generally be allowed, upon payment of costs, to withdraw his demurrer and plead or reply; - but this is within the discretion of the court."

SECT. V. TRUSTEES' ANSWERS.

Appearance of trustees. All the trustees summoned in any trustee process, must appear, before the court, and at the return day, named in the writ, or they may be defaulted. This appearance is effected

1 Ante page 215.

2 Ante page 216.

3 1 Saund. 80. n. 1.

* Collins v. Collins, 2 Burr. Rep. 820. Howell et al. v. Mac Ivers et al. 4 Term. Rep. 690. Note. For the rights of the parties, as to amending, after demurrer filed or decided, -vide Chapter on Amendment. Supra Book II.

by the entry of the name of the trustees, or of their attorney or attornies, under the name of the action upon the docket.1

Time of making answers. There is no precise time fixed, within which trustees must make and file, either their original answers, or their answers to the interrogatories, subsequently filed by the plaintiff. That it be done within a reasonable time, is all that is required.

If, however, one summoned as trustee, intend to discharge himself, and to recover costs, he must come in at the first term, and declare, "that he had not, in his hands or possession, at the time the writ was served on him, any goods, effects, or credits, of the principal," and thereupon submit himself to examination. And, in practice, trustees usually file a general answer at the first term, either the one above stated, — or declaring, "that they had not any goods, &c. unless the court shall otherwise adjudge, upon the examination, to which they submit themselves," or stating the situation of their transactions with the principal, and praying the court to determine, whether or not, they are chargeable as trustees, or admitting,

1Note. In the county of Suffolk, by a rule which applies only to that county, every trustee, who lives within the county, when he enters his appearance, must give notice thereof, to the counsel of the plaintiff, either personally, or by leaving a notification at his office, if he keep one within the county, advising him, that he has appeared in the action, and will be ready to answer such interrogatories, as may be proposed to him, on some certain day, not exceeding three days, from the time of such appearance. And the declaration of the trustee, inserted in his answer, and sworn to, will be sufficient to prove such notice. And until such appearance and notice, the trustee cannot have fees for attendance. 35th Rule C. C. Pleas, and fifteenth and sixteenth rules, referred to therein. Appendix B.

2 Stat. 1794. ch. 65. s. 3, 4.