1819. single matter only, whereon a proper issue might LANGFORD have been joined. v. WAGHORN and another. Jones, D. F. shewed cause. He submitted, that as the motion was founded upon an affidavit that the defendants were not under terms to plead issuably, yet, as that fact was denied by the affidavits on the part of the plaintiff, and the Court will not try it upon affidavits, it must therefore, for the present purpose, be taken that they were under such terms. The question then would be, whether the special demurrer was, in the present instance, within the meaning, of an issuable plea? He admitted that a demurrer may be so, but then it ought to be a fair demurrer substantially applying itself to the validity of the action, and not founded on a mere technical objection to the pleadings. In Gray v. Ashton, (a) and Berry v. Anderson, (b) it is distinctly laid down, that the defendant cannot put in a special demurrer when he is under the terms of pleading issuably. So Stonehouse v. Vowell, (c) Wright v. Russell, (d) Cuming v. Sharland, (e) and Bell v. Da Costa, (f) where the Court held, that a defendant, who is under terms to plead issuably, is not at liberty to take advantage of any objections upon special demurrer, of which he could not have availed himself upon a general demurrer. Now here the objection to the replication is substantially this, that it puts in issue all the different material allegations of the plea, instead of taking issue (a) 3 Burr. 1788. (d) 2 Bla. 923. (e) 1 East, 411. 1819. upon a single point. This objection can only be supported upon a special demurrer, Collins v. LANGFORD Walker, (a) and Banks v. Parker; (b) and here the defendant has demurred specially. Comyn, in support of the rule.-The distinction always is, in these cases, not between a special and a general demurrer, but between a real and fair demurrer, and a demurrer without good cause: Dewey v. Sopp, (c) Nesbitt v. Farmer (d). Now here the replication was substantially bad; it put in issue all the material allegations of the plea, and would have cast upon the defendant the necessity of proving them. Where a defendant insists upon a mere matter of excuse, the plaintiff may reply de injuria; but where the defendant by his plea insists on a right, such a replication cannot be supported: Crogate's case, (e) Cowper v. Monke, (f) Cockerill v. Armstrong (g). The demurrer therefore was a fair demurrer, and not without good cause; and it was in fact advised by counsel. Per Curiam. The demurrer was a fair demurrer, from which the defendant is not precluded by the terms of pleading issuably. The plea is not an excuse, but insists upon title; and the replication of de injuria cannot be supported. They therefore made the (a) Sir T. Raym. 50. (b) Hob. 76. (c) 2 Stra. 1185. (d) Barnes, 168, Rule absolute. (e) 8 Co. 67. (f) Willes, 52. (g) Ib. 99. v. WAGHORN and another. 1819. Thursday, 18th Nov. SMITH . BATTERSBY. Production by THIS cause was tried at the last Summer Asplaintiff of a by defendant rule, obtained sizes, at Lancaster, before Mr. Justice Bailey. for payment of The plaintiff on the trial merely gave in eviCourt, and the dence a rule obtained by the defendant, for pay money into Master's allo tain sum for costs is suff catur of a cer- ment of money into Court, and the Master's allocatur of a certain sum for costs in pursuance of of the plain- that rule. The learned Judge thought that evi cient evidence tiff's election to take the sum dence insufficient, and nonsuited the plaintiff, Court; and if with liberty, however, to move to enter a verdict paid into be afterwards costs taxed, proceed for the with nominal damages. A rule nisi having been and not paid, obtained early in this Term to set aside the prove a previ- nonsuit, and enter a verdict accordingly ; he need not bus demand at the trial. A nonsuit on that ground, set aside. Jones, D. F. now shewed cause, submitting, that the evidence upon the trial was insufficient. The rule for payment of money into Court was, at the instance, and in favour of the defendant; and the plaintiff might still have proceeded, if he had chosen to take the chance of recovering a sum beyond the amount paid in by the defendant. There was nothing in the evidence upon the trial to shew that the plaintiff accepted the money paid into Court, instead of proceeding for an ul terior sum. It was not proved that the plaintiff ever served any notice to attend the taxation of costs, or that the defendant in fact ever attended such taxation. The allocatur only shews the Master's Master's judgment respecting the amount of costs, but that might have been upon an ex parte taxation. [The Court here inquired whether, according to their practice, the taxation of costs under these circumstances ever took place ex parte, without the attendance of the defendant or his attorney, and without any notice to attend: and the Master certified that such taxation never took place without the attendance of the defendant's attorney, or proof of notice to him.] It was then contended, that where the defendant's attorney had not attended, proof before the Master, to his satisfaction, was not sufficient, but regular proof should have been given at the trial. At all events there should have been a demand of the costs, in order to apprize the defendant that the plaintiff was proceeding in the action to recover the costs and here there was no proof of any demand. Starkie, in support of the rule, contended that the evidence given was sufficient. By the practice, as certified by the Master, the taxation could not have been ex parte, and without notice. Either the defendant's attorney attended, or he must have had notice to attend, of which the allocatur itself, coupled with the known practice of the Court, is sufficient proof: and therefore no demand was necessary. The taxation of the costs by the plaintiff shews his election to accept the VOL. VII. Y Y money 1819. SMITH v. BATTERSBY. 1819. SMITH บ. BATTERSBY. money paid into Court, with the costs up to that time. In the case of Smith v. Smith (a), the Court of Common Pleas held, that if a defendant pay a sum of money into Court, and obtain an order to stay proceedings, on payment of that sum and costs, and omit to pay the costs when taxed, the plaintiff, after taking the money out of Court, may proceed without a previous demand of the costs. Per Curiam. The case of Smith v. Smith is an express authority in point, and appears to us to have been well decided. The proceeding to tax costs was a sufficient notice that the plaintiff elected to accept the sum paid into Court, and no demand was necessary. Rule absolute. (a) 2 Bos. & Pul. N. R. 473. WEAK, |