(Jorn^U Ham Btl^ml Hibrar^ Cornell University Library KF 8869.A51 A selection of cases on pleading at comm 3 1924 020 091 223 m Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020091223 A SELECTION OF CASES ON PLEADING AT COMMON LAW. WITH REFERENCES AND CITATIONS. By JAMES BARE AMES, ASSISTANT PBOFKSSOB OF LAW Df HARVABD UNIVERSITY. PREPARED FOR USE AS A TEXT-BOOK IN HARVARD LAW SCHOOL. " Cases arise by Chance, and are many Times intricate, confused, and obscured, ana »re cast into Form and made evident, clear, and easie by good and fair Pleading; so that tliis is the principal Ait of Law, for Pleading is not Talking." — Hob. 295. " Et saches mon fils, que est nn des pluis honorables landables et profitables choscE en nostre ley, de aver le science du bien pleader en actions reals et personels ; et pur coo, Jeo toy counsaile especialemeut de metter ton courage et cure d > ceo apprcnder." — LlTT. Ten. Sect. 634. CAMBRIDGE, MASS.: THE HARVARD LAW REVIEW PUBLISHING ASSOCIATION. 1875. ^^y^'^o Entered according to Act of Congress, in the year 1878, Of JAMES BABR AMES, In the Office of the Librarian of Congress, at Washington- CONTENTS. CHAPTER L Dbmueehbs J, Section 1. General Demurrers 1 Section II. Special Demurrers 13 Section in. Effect of Demurrer in Opening the Record 22 CHAPTER II. Pleas by Wat of Contession and Avoidance 34 Section I. In Discharge 34 Section II. In Excuse 40 (a) Special Assumpsit 40 (b) General Assumpsit 50 IV CONTENTS. (c) Trespass 56 {d) Trover 61 (e) Detinue 66 (/) Case 69 CHAPTER III. ■^LEAs BY Way op Tba verse 77 Section I. General Eequisites 77 Section II. General Issue and Specific Traverses 91 (a) Special Assumpsit 91 (5) General Assumpsit 97 (c) Trespass 100 {d) Trover 105 (e) Detinue 110 (/) Replevin 113 {g) Case 114 Section in. Special Traverses 130 Section IV. Replication de Injuria 143 CHAPTER IV. Duplicity 185 CONTENTS. CHAPTER V. Dbpahttjbe 208 CHAPTER VI. New Assignment 233 CHAPTER VII. Motions based on the Pleadings 265 Sbctioit I. Arrest of Judgment 265 Section II. Non-Obstante Veredicto 275 Skctiok Jn. Repleader 29U TABLE OF CASES. Anonymous Auburn &c. Can. Co. v. Leitch Batt V. Bradley Barber K. Vincent Bartlett v. Wells Barret v. Fletcher Bennet v. Filkins Bold V. Warren Bovy's Case Bridge v. G. J. R. Co. Bridgwater v. Bythway Brind v. Dale Brine v. G. W. K. Co. Brooke v. Brooke Broomfleld v. Smith Bush V. Parker Bussey v. Bamett Chance v. Weeden Clements v. Flight Cocker v. Crompton Cockerill v. Armstrong Colbome v. Stockdale Cole V. Hawkins Cole V. Maunder Cotton V. Browne CouUng V. Coxe Courtney v. Satchwell Craven v. Hanley Crogate's Case Crosse v. Hunt Crouch V. L. & N. W. K. Co. Dale V. Vale Dame Audley's Case Davies v. Penton De Pinna v. Polhill De Wolf V. Bevan Dorrington i;. Carter Pa^ Dover u. Rawlings 'm 24 EavestaS v. Russell 38 135 185 Fisher v. Pimbley 215 208 Fisher v. Wood 177 31 Forteseue v. Holt ' 134 Foshay v. Riche 89 233 Frankum v. Fa,lmouth 114 3 Freeman v. Crafts 250 222 Fursdon v. Weeks 145 265 131 Gaile v. Betts 186 209 Galway v. Rose 194 81 Gardner v. Alexander 97 73 Gibbons v. Pepper 58 82 Gilbert v. Parker 85 40 Gledstane v. Hewitt 218 224 Goodburne v. Bowman 278 266 Goodchild v. Pledge 37 97 Goram v. Sweeting 79 241 Gordon v. Ellis 268 98 Gould V. Lasbury 34 GriUs V. Mannell 86 146 66 Haiton v. Jeffreys 6 239 Harrison v. Cotgreave 204 147 Hart V. Longfield 187 85 Hastrop v. Hastings 24 212 • Hayselden v. Staff 50 2 Heard w.Baskervile 13 71 Hill V. Wright 113 283 Hilton V. Jeffreys 6 136 Hodges V. Steward 3 275 Horn V. Lewin 135 143 Huddart v. Rigby 200 83 Huish V. Philips 130 75 Humphreys v. Bethily 187 1 Isaac V. Farrar 173 185 28 Jones V. Chapman lOM 92 Jones V. Kitchin 149 197 61 Kempe o. Crews 291 VIU TABLE OF CASES. Page Pago King V. Rotham 16 Reynolds v. Blackburn 191 Knapp V. Salsbury 100 Robinson v. Rayley 188 Rogers V. Custance 251 Lacy V. Reynolds 275 Richards v. Frankum 110 Lambert v. Taylor 276 Richards v. Hodges 210 Lane v. Alexander 79 Rige way's Case 22 Lane v. Tewson 112 Russell's Case 77 Leach v. Thomas 266 Legg 0. Evans 220 Salter v. Purchell 178 Leke's Case 78 Saunders v. Crawley 186 Lewis V. Alcock 121 Serjeant v. Fairfax 290 Lillie V. Price 119 Scovill V. Seeley 9 Loweth V. Smith 257 Selby V. Bardons 155 Lyall V. Higgins 46 Shepherd v. Shepherd 202 Sieveking v. Dutton 48 Manchester «.Vale 56 Slack V. Lyon 272 Marsh v. Bulteel 26 Smart v. Hyde 42 Mayor v. Richardson 138 Smith V. Parsons 91 Mayor, &c., of London v. Gorrey 291 Spencer v. Dawson 118 McPherson v. Daniels 69 Spotswood V. Barrow 181 Metzner v. Bolton 93 Staple V. Heydon 293 Millard v. Baldwin 10 State V. Peck 19 Mole V. WaUis 209 Stephens v. Underwood 192 Monkman v. Shepherdson 255 Story 1!. Dobson 12 Monprivatt v. Smith 235 Montgomery v. Richardson 58 Tavemour v. Little 125 Taylor v. Markham 145 Niblet V. Smith 214 Taylor v. Smith 238 Norman v. Westcombe 246 The Duke of Rutland v. Bag- Norton v. Scholefleld 128 shawe 286 Note 1 Thomas v. Morgan 116 Thorn v. Shering 130 O'Brien v. Saxon 153 Tippet V. May 25 Odiham v. Smith 209 Tomkins v. Ashby 6 Owen V. Knight 105 Torrence v. Gibbina 100 Owen V. Reynolds 213 Tresham v. Ford 2 Palmer v. Ekins 136 Vere v. Smith 211 Pease v. Phelps 7 Penn v. Ward 170 Walden v. Holman 5 Perring v. Harris 120 Walker v. Jones 89 Piggot's Case 23 Watkins v. Lee 123 Pigott V. Kemp 166 White u. Bodinam 84 Plummer v. Lee 281 White V. Teale 108 Pratt V. Groome 236 Winchelsea v. Higden 213 Prettyman v. Lawrence 233 Wise V. HodsoU 59 Witts V. Polehampton 292 Rathbone v. Rathbone 207 Rex V. Knollys 4 Young r. Cooper 83 Rex V. Philips 295 CASES ON PLEADING. CHAPTER L DEMURRERS. SECTION I. General Demurrers. NOTE. [Coie upon Littleton, 71 6.] A DEMTTKEEE cometh of the Latin word demorari to abide ; and there- fore he which demnrreth in law, is said, he that abideth in law : Mora- tur or demoratur in lege. Whensoever the learned counsel of a party is of opinion that the count or plea of the adverse party is insufficient in law, then he demurreth or abideth in law, and refeiTeth the same to the judgment of the court. J. S. OF DALE V. J. S. OF VALE. In the Exchequee Chambee, Hilaet Teem, 1474. [Reported in Jenkin's Century Cases, 133.] Teespass is brought by J. S. of Dale against J. S. of Vale, for certain goods taken. The defendant pleads that J. S. of Vale was possessed of those goods as of his own, until J. S. of Dale took them and gave them to the plaintilf. The plaintiff replies that J. S. of Da le and the plaintiff are the same person, and he d emurs upon the plea . Judged for the plaintiff. For the defendant's joinder in demurrer confesses the replication ; and a man cannot give to himself; and the plea is no more than that the goods for which the trespass was brought were the goods of the defendant, which is not a plea, for it amounts to not guilty; and w here a plea pleaded amounts to a general iss ue, the treneral issue ou^ht to be pleaded. 2 COLE V. MAUNDEIJ. [CHAP. I- TRESHAM V. li'OlcD, -•••■». In the Common Pleas, Hilaet Teem, 1601 [Reported in Crake's Elizabeth, 830.] Account, supposing him to be receiver of £120 of his money by the hands of Vavasor, ad compotum reddendum. The defendant pleaded nunques son receiver, &c., and the jury find that" he was receiver of such a sum. The defendant, before the auditory, pleaded that he was possessed of divers obligations, wherein Francis Tresham, son and heir to the plaintiff, was obliged unto him in £400, and that the said Vava- ^ sor paid unto him this £120 in satisfaction of those bonds, and there- ' upon he delivered unto him the said bonds to the use of the plaintiff, ' which he accepted. And thereupon the p laintiff demurred . And it ' was held by the whole court to be no plea, for it is contrary to the verdict, which found him to be receiver, to render, &c. ; and the plea amounts to no more but that he was not receiver to account.* COLE V. MAUNDER. (I JU^^^'"''''^^ In the King's Bench, Hilary Teem, 1635<;^f-»-r*^^ [Reported in 2 Rolle's Abridgment, 548.] .J/iaaX"' *^ If one enters my close, and with an iron sledge and bar breaks and displaces the stones on the land, being my chattels, and I request him to desist, and he refuses, and threatens me if I shall approach him ; and upon this I, to prevent him from doing more damage to the stones, not daring to approach him, throw some stones at him molliter et molli manu, and they fall upon him molliter, still this is not a good justifi- cation, for the j udges say that one cannot thi-nw stones n),(TilH^ .p.r^ al- though it were confessed by a dehiurrer ; and it would be perilous to give men liberty to throw stones in defence of their possession, for when a stone is thrown from the hand, it cannot be guided, and [here] a justification of a battery in defence of possession, although this arises from the possession, still [in] the conclusion is in defence of the person. Judgment for plaintiff? 1 Taylor v. Page, Cro. Car. 116 ; Holabird v. Burr, 17 Conn." 563 ; People v. Shaw, 13 111. 581, accord?. — Ed. 2 Weston V. Carter, 1 Sid. 9, accord. — Ed. SECT. I.] HODGES V. STEWARD. 8 BARBER V. VINCENT. jM^^^^^^^^^h^ In the Common Pleas, Michaelmas Teem, 1680. [Reported in Freeman, 531.] Indebitatus assumpsit for a horse sold for 4^20. The defendant pleaded deijis age. The plaintiflF replied, that he sold him the horse for his conven- iency to carry him about his necessary aSairs ; to which the defendant demui-red. And the sole question was, whether an action would lie against an infant for money for a horse sold ? It was urged on the defendant's part, that an infant was chargeable only for necessaries, as meat, drink, clothes, lodging, and education.^ But the court were of a contrary opinion ; for the plaintiff havin g averre d that he sold him the horse to ride about upon hig ppp.easarv occasion s, and the defendant havint y nnnfesspd it. by his demurrer , it must now be taken to be so. If the defendant had traversed, then the jury must have judged of it, whether it were necessary or conven- ient, or not ; and so likewise of the price of the horse, whether it were excessive or not. Jud' pro quer' nisi.^ HODGES V. STEWARD. In the King's Bench, Eastee Teem, 1693. [Reported in 3 Sallceld, 68.] This case is reported in 1 Salk. 125 ; to which may be added, that this was an action on the case brought upon an inland bill of exchange, in which the plaintiff declared upon a special custom in London for the bearer to bring the action, &c.; and upon a demurrer to the decla- ration, besides the other points adjudged in this case, it was held, that the defendant having demurred, without traversing the custom, he had thereby confessed there was such a custom, though in truth there was not, and for that reason the plaintiff had judgment ; for though the 1 Cro. Eliz. 174 ; Ayliff v. Archbold, Latch, 169. 2 Tatem v. Perient, Yelv. 195 ; Speccot v. Sheres, Cro. El. 828 ; Gundry v. Fel- tham, 1 T. R. 338; Gas Co. v. Turner, 6 B. N. C. 327; Tyler v. Bland, 9 M. & W. 841 ; Tancred v. AUgood, 4 H. & N. 444; P. M. Gen. o. Ustiok, 4 Wash. C. C. 347 j City of LoweU v. Morse, 1 Met. 475 ; Troy & G. B.R. v. Newton, 1 Gray, 54iv occord. — Ei>. 4 REX AND EEGTNA V. KNOLLYS. [CHAP. I. court takes notice of the law of merchants, as part of the law of Eng- land, yet they cannot take notice of the customs of particular places ; and this custom, as set forth in the declaration , b eing sufficient to maintain the nnt.ion. and the de fenrlanf. f.nnfossing U, hv his demurrer- he bath given judgment against himself. REX AKD REGINA v. KNOLLYS. Teinitt Tebm, 1694. [Reported in 1 Raymond, 10.] An indictment was found at Hick's Hall against the defendant by the name of Charles Knollys, Esq., for the murder of Captain Lawson (who had married the sister of the defendant), and this indictment was removed by certiorari into the King's Bench, where the defendant pleaded a misnomer in abatement.^ The Attorney-General replies to this plea, that the defendant, upon the thirteenth of December, 4 Will. & Mar., preferred a petition to the house of peers then in parlia- ment assembled, that he might be tried by his peers, and that after long considerations and debates the house of peers dismissed his petition, secundum legem parliamenti, and disallowed his peerage, and made an order that the defendant should be tried by the course of the common law, &c. To this replication the defendant demurred, and the Attorney- General joined in demurrer. And after divers arguments at the bar by /Sir Edward "Ward, attorney-general, Sir Thomas Trevor, solicitor- general, Sir William, Williams, king's counsel for the king and queen, Eind by Serjeant Pemberton, Serjeant Levinz, and Sir JBartholomew Shower, for the defendant, this day, viz., the 20th of June, the Court of King's Bench in solemn arguments at the bench unanimously gave their opinions for the defendant. As to the objection, that the judgment was said to be given secun- dum legem parliament, which the defendant by his demurrer hath confessed, He (Lord Holt) answered, that a demurrer confesses only mattei of fact, and that only when it is well pleaded, but it never confesses matter in law. Indictment abated.^ 1 Only so much of the case is given as relates to the effect of the demurrer. — Ed. 2 " But the allegation now in question [that thereupon it became the duty of the defendant to do that which the plaintiff complains of his omitting to do] is open to the further objection, that, however directly averred, it is an averment of matter of law only, and not of matter of fact. If the words had been, that the defendant became bound by law to do certain acts, it could not be questioned that that was an •^EOT. I.] WALDEN V. HOLMAN. 6 WALDEN V. HOLMAN. In the Queen's Bench, Hilary Term, 1704. [Reported in 2 Lord Raymond, 1015.] The plaintiff declared against the defendant by the name of John, who pleaded in abatement that he was baptized by the name of Ben jamin, absqice hoc, quod idem Johannes, was ever known by the name of John; and the plaintiff demurred generally. Holt, C. J. Matters of form may be taken advantage of on a ^reneral demurrer, w hen the plea only goes in abatement, for the Statute of Elizabeth only means that matters of forms in pleas which go to the action shall be helped on a general demurrer. So here, the plea is ill in form, for it is absque h»c, fu»d idmn Johannes, &c., which is a con- fession of his name to be so, and makes the subsequent matter repug- nant ; and by this traverse the defendant has waived the matter that went before, of his being baptized by the name of Benjamin, and has made the traverse the substance of his plea. Powell, J. This plea is good in substance, and then will an imma- terial traverse hurt it ? Holt, C J. It is a good traverse, but informal, for the plaintiff may take issue on it ; and in this case, since the defendant has not relied on the plea of baptism, the traverse is become material. Powell, J. I think the traverse is immaterial, for a man can have but one name of baptism ; and the defendant has alleged that matter suflSciently, and it will not be hurt by the traverse. allegation of matter of law ; and the words, ' it became the duty of the defendant,' if they were to be understood as averring the existence of some duty different from that arising out of a legal obligation, certainly would not aid the declaration, inasmuch aa the breach of such a duty does not give a cause of action. But, if they be under- stood, as we think they are, as averring the existence of a legal liability, it is well established that such an averment, being an averment of matter of law, will not sup- ply the want of those allegations of matter of fact from which the court could infer the law to be as stated ; so that such allegation is useless where tlie declaration is insufficient, and superfluous when suflBcient without it. In the case of Parnaby v. The Lancaster Canal Company, 11 Ad. & E. 223, 3 P. & D. 162, the court rejected the statement, that it thereupon became the duty of the company to remove the obstruction, as being an inference of law improperly stated. And in the case of Priestly v. fowler, 3 M. & W. 1, although the declaration contained a direct aver- ment that it became the duty of the defendant to use due and proper care, the court arrested the judgment, because the declaration contained no premises from which the duty of the defendant, as therein alleged, could be inferred by law." Brown v. Mallett, 6 C. B. 615, per Maule, J. ; Partridge v. Strange, Plowd. 85 ; Burton's Case, 5 Rep. 69 ; Ford v. Peering, 1 Ves. Jr. 77 ; Seymour v. Mnddox, 16 Q. B. 326 ; White v. Crisp, 10 Ex. 312 ; Metcalfe v. Hetherington, 11 Ex. 269 ; Hayden v. Manufacturing Co., 29 Conn. 560; McCune v. Gas Co., 30 Conn. 52!?; Hewison i;. New Haven, 34 Conn. 133 ; Buffalo v. Holloway, 3 Seld. 498, accord. — Ed. 6 TOMKINS V. ASHBT. [CHAP. 1. Holt, C. J. The matter of the baptism would have been a good plea of itself, for it implies a negative, that he might have concluded with it, and relied upon it, without saying that he was never called or known by any other name, for he can have no other Christian name This plea is only dilatory, and not to the merits. TiCt the defendant answer over, per curiam} HAITON AKD Others, Assignees v. JEFFREYS. In the King's Bench, Hilary Term, 1715. [Reported in 10 Modern Reports, 280.] The court was moved for. leave to plead a ^a, and demur to the decla ration, at the same time , upon' the 4 Anne, o. 16, § 1, the words of which are, "that it shall be lawful for any defendant, or tenant in any action or suit, or for any plaintiff in replevin, in any court of 'ecord, with the leave of the same court, to plead as many several matters thereto as he shall think necessary for his defence ; provided, nevertheless, that if any such matter shall, upon a demurrer joined, be judged insufBcient, costs," &c. The Court. The words of the act of Parliament are, " That it shall be lawful to plead as many several matters," &c. Now a de- rmirrer is so far from being a plea, that it is an excuse for not plead- ing. Here you plead, and at the same time pray that you may not plead. The word " matter " imports a possibility that the other party may demur to it ; but there can be no demurrer upon a demurrer . This was never attempted before." TOMKINS V. ASHBT. At Nisi Prius, coram Abbott, C. J., January 19, 1827. IReported in Moody ^ Malhin, 32.] Assumpsit for money deposited by the plaintiff with the defendant. The defence suggested was that the money was deposited for a particular purpose (the answering the differences on some Mexican bonds), and applied to that purpose. 1 Nowlan v. Geddes, 1 East, 634 ; Lloyd v. Williams, 2 M. & Sel. 485, per Bayley, J. ; Esdaile v. Lund, 12 M. & W. 613 ; Casey v. Cleveland, 7 Port. 444 ; Elmer ». McKenzie, 5 Ala. 617 ; Getchell v. Boyd, 44 Me. 482 ; Clifford v. Cony, 1 M;ass. 495 ; Clarke v. Brown, 6 N. H. 34 ; Shaw v. Dutcher, 19 Wend. 222 ; Mantz v. Hendley, 3 Hen. & Munf . 308, accord. — Ed. Gayle v. Smith, Minor, 83, accord. Conf. PNihiiss v. Ellis, 2 Brock. 14. En. SECT. I.] PEASE V. PHELPS. 7 The delVnclant had filed a bill in chancery against the plaintiff, alleging, among other things, the circumstances now relied on with respect to the Mexican bonds. The plaintiff had originally demurred to this bill ; but the demurrer being overruled, he put in an answer, pleading to that part of the bill which respected the Mexican bonds, and answering the remainder of the bill. Scarlett, for the defendant, proposed to read the proceedings in chancery, as amounting to an admission on the part of the plaintiff of the circumstances respecting the Mexican bonds as stated in the defendant's bill. ^ Abbott, Ld. C. J., refused the evidence; observing that, after a^ demurrer to a bill in equity , if the demurrer were overruled , t he party ' mis;ht sti ll g^n nn gnfl Qnc^ypj- • and that, consequently, the demurrei was not to be taken as a n absolute admission of the facts charged ; /< and that on the same principle a plea in equity cculd not be so, for that it amounted merely to a statement of circumstances to prove that, supposing the facts charged to be true, the defendant is not bound to answer; it could, therefore, no more amount to an admission of those facts, than a witness who declines to answer a question caE be held to admit the fact inquired into. Verdict for the plaintiff.' ' PEASE V. PHELPS. iStrPEKJIE CotTET OF EkROES, CONNECTICUT, JlTNE, 1834. [Reported in 10 Connecticut Reports, 62.] This was an action on a promissory note made by Samuel Stebbins, deceased, in these words: " Simsbury, January 7, 1818. I promise to pay John Wood Pease, when he shall arrive at the age of twenty- one years, the sum of one thousand dollars ; value received. Samuel Stebbins." The defendant pleaded in bar, that Samuel Stebbins died in Janu- ary, 1821, leaving his last will and testament, whereby he appointed his wife, Ursula Stebbins, and Samuel S. Stebbins, executors thereof; that the plaintiff became twenty-one years of age on the 5th of Decem- ber, 1827 ; and the plaintiff's right and claim accrued after the death of said Samuel Stebbins, viz., on the 5th of December, 1827, and was not exhibited to said executors, or either of them, by the plaintiff, within twelve months after the right of action accrued, and is the same for which the suit is brought. The plaintiff replied, that on the -nf^ay of March, 1831, and before 1 Auld V. Hepburn, 1 Cranch C. C. 122 ; s. p. 166 ; Pearce v. Provost, 4 Houst 467, accord. Conf . Alexander v. Sutlive, 3 Ga. 27. — Ed. « PEASE V. PHELPS. [CHAP. I. the expiration of the time limited for the exhibition of claims against said estate, the plaintiff caused said note to be exhibited to said Ursula, and the same then was exhibited to and demanded of said Ursula aa executrix. The defendant, in his rejoinder, aver red that said claim was not ex- hibited to said e xecut ors, or either of them, by the plain tiff, with in twelv e mon ths after the plaintiff arrived to the age of twenty-one years ; a nd (^ g purred to t ke r^id ue of the replication. The plaintiff ioined issue : and thus the pleadings terminated.' The cause was tried on the issue in fact, at Hartford, September term, 1833, before Church, J. The glaig^iff claimed, and requested th^ court to i nstru ct the jury, that ugon the facts conceded on the pleadings, bj the demurrer, ttiey should find that the note was duly presented within one year after the plaintiff came of age, and should, therefore, return a verdict for the plaintiff. The court did not so instruct the jury; and the defendan t nVitninpd a verdict. The plaintiff thereupon moved for a new trial; and the case was reserved for the opinion of the Supreme Court of Errors upon the facts stated on the record, and on the matters embraced by the motion. Sungerford and "W. TF. Ellsworth, for the plaintiff, contended that due presentment was admitted by the demurrer ; and no further evidence was necessary. Sherman and Toucey, for the defendant, contended that the de- murrer is not evidence on the trial of the issue to the jury. It never was intended as an instrument of evidence. When it admits facts, it admits them for the sole purpose of presenting their sufficiency for determination. Chuech, J. But it was claimed by the plaintiff that, upon the facts conceded on the pleadings, by the demurrer, the court should have instructed the jury to find that the note in question was duly presented within twelve months, as averred in the replication. This claim of the plaintiff cannot be supported. A demurrer presents only an issue in law to the court for consideration : the jury have no concern with it ; and although it is a rule of pleading that a demurrer admits facts well pleaded, for the sole purpose of determining their legal sufficiency, Iyet, as a rule of evidence, i t was never supposed that a demurre r admitted any thing . Tompkins v. Ashby. The other judges were of the same opinion except Bissell, J., who was not present when the case was argued, and therefore gave no opinion. [New trial to be granted.^ '^/ 1 The statement of the case and the pleadings have been abbreviated. — Ed. '"'^^ 2 Gray v. Finch, 23 Conn. 512; Alexander v. Sutlive, 3 Ga. 27 (sembU) ; Stinson ii Gardiner, 33 Me. 94, accord. — Ed. SECT. lJ SCOTILL V. SEELEY. 9 SCOVILL V. SEELEY. SUPKEME CoCTRT OF EeKOBS, CONNECTICUT, JuNE, iSil. 'Reported in 14 Connecticut Reports, 238.] Tms was an action of trespass quare clausum fregit. The declara- tion alleged, that on th;g 31st of January, 1838, the plaintiff owned and possessed a certain tract of land [describing it], and while he owned and possessed the same, at Stamford, on said 31st day of Jan- uary, the defendant, with force and arms, unlawfully broke into and upon said tract, and then and there, with like force and arms, did cut down and destroy two hundred trees then and there standing and be- longing to the plaintiff, of the value of fifty dollars, with other enor- mities; to the damage of the plaintiff the sum of seventy dollars. This actio n was originally brought to the County Court, and upon de- murrer to the declara tion, it was, by that court, adjudge d to be_ insuf- ficient ; and the cause was thereupon appealed, by the plaintiff, to the Superior Court. At the term of the latter court, in September, 1840, the defendant moved that the action be remanded to the County Cour t, to be proceeded with according to law, upon the ground that it was not appealable. This motion was reserved for the advice of this court. Booth and Ferris, in support of the motion, contended that this was an action to recover damages for cutting the plaintiff's trees ; that the title of the land was not in question, nor determined ; and conse- quently, that as the demand does not exceed seventy dollars, the cause was not appealable, and ought to be remanded to the County Court. Hawley, contra, insisted that the action was appealable. It was Drought to, and tried by, the County Court, and the title of land was drawn in question, being explicitly averred in the declaration, and admitted by the demurrer. Dunton v. Mead ^ disposes of the question raised here. If this action be not appealable, ejectment demanding no more than seventy dollars would not be. Chuech, J. The matter in demand, in this action, does not exceed seventy dollars; and, by the general provision of the statute con- cerning civil actions, section 61, is not appealable. To make it so, the title of the land must have been drawn in question and determined; and this can only appear to have been done, either by the pleadings in the case, or by the certificate of the County Court. There was no certificate in this case ; nor can it be inferred from the record that the » 6 Conn. 420. 10 MILLART? V. BALDWIN. [CHAP. T. title of the land was either drawn in question or determined. Tlie demurrer to the declaration placed nothing in question but the legal sufficiency of the allegations contained in it; and the judgment rendered upon it determined nothing regarding the title of land. The plaintiff, to be sure, alleged ownership, as well as possession. This is a very common form of declaring, in actions of trespass; and if the reasoning of the plaintiff be correct, title is drawn in question, in all cases, under such a form of declaration, let the defence be as it may. The demurrer admitted the truth of a ll the material averment s, so that no matter of fact was drawn in question, none was in dispute , and none w as determined by the j udgment. if the title to the land was in question in this case, in the County Court, it has been, as between these parties, conclusively settled, and can no more be disturbed in a future action, under any other form of pleading, — a proposition to which the plaintiff, we presume, would not willingly assent. Nothing was decided, by this court, in the case of Dunton v. Mead,^ which conflicts with the opinion here expressed. We think this cause was not appealable, and advise that it be re- manded to the County Court. In this opinion the other judges concurred. Cause not appealable, and remanded? • ^ ».**wt t- On exceptions. Debt on the official bond of Benjamin D. Peck, treasurer of the State of Maine, dated Jan. 28, 1858. "Writ dated March 23, 1861. At the April term, 1868, the defendants pleaded full performance of the covenants and condition of the bond. To which the plaintiff replied, that the principal defendant was treasurer of the State from Jan. 13, 1858, to Feb. 4, 1859, and that on Jan. 14, 1858, and divers other days and times between that day and Feb. 4, 1859, the said Peck, as said treasurer, received divers sums, amounting to 839,231.19, belonging to the State of Maine, and hath not accounted for any part of it. To_ this replica tion the d efend ants filed_a special d emurr er. whic h was join ed. (The pleadmgs may be found 58 Maine, 123.) May 30, 1871, the certificate of the decision of the law court was received by the clerk o verrulin g the d emurr er and adjudging the repli- cation good. On the 13th da y of the succeeding October term, 1871, the defend ants move d for leave to withdraw th_e demu rrer with- out the consent of the plaintiff and plead to the issue, tendering there- with a rejoinder alleging, substantially, that Peck did account for and pay to the plaintiff the said sums of money by the replication alleged not to have been paid, and tendered an issue to the country. But the presiding judge overruled the motion and declined to receive the rejoinder, and ordered judgment to be entered for the plaintiff for $150,000, the penalty of the bond.^ , attorney-general, for the State. M M. Hand, for the defendants. The defendants had a right to rejoin. Not proper to enter a final judgment for the plaintiff, upon over- ruling a special demurrer to a replication. A special demurrer does not admit the truth of all facts well pleaded, as is the case with general demurrer. Even general demurrer does not admit damages, — an averment that defendant owes plaintiff a stated sum as damages. Millard v. Baldwin. Nothing in R. S. c. 82, § 19, deprives defendants of right to rejoin 1 See supra, p. 6, note 1. — Ed. 20 • STATE OP MAINE V. PECK. [CHAP. I. but only declares that a demurrer once filed shall be ruled upon, unless withdrawn by consent before ruling. Danfoeth, J. This case has once been before the law court upon a special demurrer to the plaintiff's replication. 58 Maine, 123. The demurrer was overruled, the replication held good, and the case sent back for final judgment, unless the defendants were per- mitted to withdraw their demurrer and plead anew under the pro visions of the R. S. c. 82, § 19. At the term subsequent to the announcement of the decision, the defendants' counsel moved for leave to withdraw said demurrer, without the consent of the plaintiflf and without complying with the provisions of the statute, and to plead to the issue. This motion was denied and judgment ordered for the plaintiff. To this the defendants except, and now claim the allowance of the motion as of right. If the judgment upon the issue, as made up, should have been respondeat ouster, the defendants are right in their claim, otherwise not. Previous to the several acts embodied in the revision above cited, on a general demurrer, final judgment would have been ordered by the law court, and entered as of the preceding, instead of at the fol- lowing term. The demurrer was not to a plea in abatement, but to a replication, which presented the full merits of the case. The party had his option to plead or demur. By electing the latter, " he shall be taken to admit that he has no ground for denial or traverse." ' The result of this principle is the well-established rule, " that a de- murrer admits all such matters of fact as are sufiiciently pleaded." It must be conceded that the replication contains all the facts necessary to maintain the plaintiff's case, and the court have decided that it is sufficient in form. Hence a final judgment must necessarily follow. The authorities are to the same effect. Stephen, in his work on pleading, treating of judgments for the plaintiff, says, on pages 104, 105 : " If it be an issue in law, arising on a dilatory plea, the judgment is only, that the defendant answer over. . . . Upon all OWiPIIMIWP in law, and in general all issues of fact, the judgment is, that the plain- tiff recover." Also in note on page 144 : " On ^emnrrer t.n g,ny plead - incrs whici| i pn tn the action, th e judgment for either party is the sa me as it wou lil hpvp hepn nn j tn issue of fact, j oined unon the same plea d- ing and f nnnd in favnr nf t.Vip gamp party" Clearwater V. Meredith ; ' HcKeen v. Parker ; ' McAllister v. Clark ; * and in Pai-lin v. Macomber,' Washington v. Eames,° final judgment was ordered by the law court. But without denying the correctness of these principles when applied to a general demurrer, it is contended that they are not applicable to 1 Stephen on PI. 143. « 1 Wallace, 26, 43. 3 61 Maine, 389. * 83 Conn. 258. ' 5 Maine, 418. « 6 Allen 417. SKCT. II. j STATE OF MAINE V. PECK. 21 a special one, and it is said that none of the authorities so lay down the law. While this may be true, it is also true that in Parlin v. Macomber, above cited, the court applied the law to a special demur- rer, and also in Washington v. Eames, though in Massachusetts, under their practice act, all demurrers must be special. No authority has been cited, or fallen under notice, in which any distinction between the two kinds of demurrer, in respect to the judgment has been alluded to, which, to say the least, is a little singular, if any such difference exists. Nor are we able to perceive any such distinction from the principles involved. Every special demurrer includes a general one, for under the former " the party may, on the argument, not only take advantage of the faults which his demurrer specifies, but, also, of all such objections in substance, as regarding the very right of the cause, as the law does not require to be particularly set down." ^ In the one just as much as in the other the party has his option to plead or demur, and must be equally bound by his election. But one answer, unless by leave of court, can be made to the plea, and if that is overruled, it must stand as true. A special demurrer raises a question of law just as much as a general one, and there is no exception to the rule as laid down, that w here there is an issue of law upon a plea "which p|oes to the action " the judgment will be final. To these principles of law the statute adds its mandate. R. S. c. 82, § 19. The statute gives the parties some rights which did not previously exist, and, for the purpose of enabling them to secure those rights, the action is to stand upon the docket until the term following the certificate of decision. But these rights must be asserted within the time and in the manner specified, otherwise they are waived, and the case ended. No distinction is made between a special and general demurrer, but the word used comprehends both. In this case the new pleaSitigs were not filed on the second day of the term, nor do the costs appear to have been paid. Hence, in accordance with the statute, judgment must be entered. AppLBTOiir, C. J.; Cutting, Walton, and Dickekson, JJ., con- cm-red. Taplbt did not concur.^ 1 Stephen on PI. 141, 142; Bouvier's Law Diet., "Demurrer." 2 Martin v. Iron "Works, 35 Ga. 820; Brown v. Jones, 10 G. & J. 334, accord. See to same effect, Boyce v. Whitaker, Doug. 94 ; Darling v. Gurney, 2 Dowl. 101 ; Andnis v. Waring, 20 Johns. 153 ; Stoney v. MoNeUe, 1 MoC. 85. — Ed. ' 22 rigeway's case. [chap. i. ^, SECTION m. Effect of Demurrer in opening the Record. RIGEWAY'S CASE, Is THE Queen's Bench, Easter Teem, 1594. [Reported in 3 Reports, 52 a ; s. c. Poph. 41.] In debt by William Grils, against Thomas Rigeway, late sheriff of Devon, for £309 6s. Sd., which he had recovered in the same court in trespass for taking his goods, against John Chawner, alias Chaundeler, and that the body of Chawner was taken in execution 20 April, 33 Eliz., by the defendant, then sheriff, at Stoke Cannon ■ iu the said county; and afterwards the defendant, 10 December, 34 Eliz., then ^ sheriff of the same county, suffered him to escape in Parochia S. MaricB de Arcubus in warda ae Cheape, London, et ad largum, quo 1 voluit ire permisit, 'etc. The defendant pleaded and confessed that c Chawner was taken in execution the said 20th of April, 83 Eliz., and a- so continued in his custody till the eighth day of December following ;^ at which day, at Stoke Cannon aforesaid, he broke the prison, et a^ custodia ipsus Th. Rigeway contra voluntatem ipsius Th. evasit, super g quoprced^ Thomas adtunc et ibidem recenter insecutus est praed' Jo- hannem, et in recenti insecutione ipsius Jbhannis in forma prced', praed' Thomas Rigeway 11 Die Deceinb. tunc proxime sequent^ apud StoJce Cannon prced^ ratione et virtuie executio?iis prced' et prioris captionis et executionis prcedicf, cepit et arrestavit praed'' Johannem, etc. The plaintiff, by way of replication, by protestation that the defendant did not make fresh suit, for plea said, quod post evasion em nrwd^ et anteQuam prce d^ Johannes Chawner recaptus fui t, idem Johan nes per totum unufh diem et unam nhctem, viz. apud pondor i in_ parochia et 'ward a praed'' fuit extra visum ipsius Thomoe^ e tc. And - thereupon the defeijiJant did demur in law.-' It was resolved that the bar was insufficien t, for t he plaintiff hath declared of an escape in London , and the defendant justifieth the 'retaking of him at Stoke Cannon, and so the escape at London is no t answered ; but forasmuch as the plaintiff not denying the fresh suit, 1 See supra, p. 5, note 1. — Ed. SECT. iii.J piggot's case. 23 but by protestation hath only relied upon that matter, that the pris- oner was out of his sight, the court will not intend other matter to maintain bis action than he himself hath showed : and now on the whole record it doth not appea r to the court that the plaintiff hath cause of action, wherefwe the plaintiff perceiving the opinion o^^e court, did discontinue his suit ; but it was agreed that if the plaintiff had demurred upon the bar, he should have had judgment.^ PIGGOT'S CASE."BL*e-w^^-^ jU»«(^ In- the Common Pleas, Hilaet Teem, 1598. ^~''***«*''^ [Reported in 5 Reports, 29 a.] PiGGOT, administrator of Longfield, durante minor e mtate o f A. Longfield, brought an action of debt in the Common Pleas on a bond against Gascoigne and Furthee ; and averre d that A. Longfi eld was within the age of twenty -one year s ; to which the defendants pleaded an insufficient bar ; on which the plaintiff demur red. And forasmuch as the bar was insufficien t, now the questio n was whether the declaration was good or not . And the doubt was, when administration is granted durante minore cetate, how long it should endure, soil., to the age of twenty-one years, or to what age it should continue. And thereupon the court conferred with sundry doctors of the civil law openly in court. And it was held by them that administrati on durante minor e cetate s hould cease at the age of seventeen years ; and if such admin- istration be committed, the executor being of the age of seventeen years is void ; and for this cause it was adjudged by the court that the declaration was insufficient; for perhaps the executor was of the age of seventeen or eighteen, &c., and within the age of twenty-one years, as the plaintiff hath averred ; and yet the plaintiff's adminis- tration was determined ; for which cause it was awarded that the plaintiff should take nothing by his bill.'' 1 Burgess' Case, Hob. 14; Johnson v. Norway, Winch, 37 (semble); Hamond v. Dod, Cro. Car. 5 (semble) ; Cutler v. Southern, 1 Lev. 195 (semble) ; Perkins v. Perkins, Hob. 128 ; Zouch o. Bamfort, Godb. 138 ; Tingling v. Hoppe, 9 Gill, 313 ; U. S. v. Arthur, 3 vOranch, 257 ; Keay v. Goodwin, 16 Mass. 1 (semble) ; Andrus v. "Waring, 20 Johns. 153, accord; Bamfield v. Bamfield, 1 Sid. 336 (semble), contra. — 'Ed. 2 Foster v. Jackson, Hob. 66 ; Duppa v. Mayo, 1 Saund. 285 (5) ; Sykes v. Lewis, 17 Ala. 261 ; Burke v. Stilwell, 23 Ark. 294 ; McKeon v. Lane, 1 Hall, 319 ; Ward v. Sackrider 3 Cai. R. 262 (semble) ; U. S. v. White, 2 Hill, 69 (semble), accord. — Ed. 24 ANONSfMOUS. [chap. I. HASTROP V. HASTINGS. In the King's Bench, Easter Teem, 1692. [Reported in 1 Salkeld, 212.] In an action upon the case for beer and wages, the d^ndafit pleaded in abatemen t, et pet. judicium de billa, et quod billa prcedict. cassetur ; ior uncertainty in the declaration upon demurrer, th e defendant 's coun- sel insisted upon many _faults_in_the declar ation. JEt per Cur. The defendant shall not take advantage of mistakes in the declaration upon a nlea in abatement ; but if he would do that, he must demur to the declaration, per quod a respondeas ouster ?ii'^0&yfst,x^i0 ANONTMOTJS. In the Common Pleas, Hilakt Teem, 1763. [Reported in 2 Wilson, 150.] Debt on a bond with condition for the payment of a certain sum pf money on a certain day; defendant plead s payment bp.fnrp. thf- dpy.;^ plaintiff replies that the defendant did not pay before the day, et de'^ hoc ponit se super patriam/ defendant demurs, and plaintiff joins in / demurrer. ^ ITares, Serjt.„ for the defendant, admitted thai the plea at first! was bad, but insisted the plaintiff had made it good by replying and tendering issue upon it, or that, if the issue was immaterial, there ought to be a repleader. S^ jiewitt, Serjt., contra. This is a case where defendant has not joined issue to the country, but has put himself upon the judgment of the court ; and though the rei^lins tinn V>a 1iar|, yet whenever the case is upon a demurrer, th e court looks for the- first fault , which is in ' the plea here: and therefore judgment ought to be lor the plain- tiff; and of tliat opinion was the court, and gave judgment for the plaintiff.^ 1 Peter v. Pilkington, Carth. 171 ; Chambers v. Gamt, 1 Show. 91 ; Bonham's Case, 8 Eep. 120 ; Belayse v. Hester, 3 Lutw. 506 ; BuUythorp v. Turner, Willes, 478 ; Rogers v. Smiley, 2 Port. 249 ; Crawford v. Slade, 9 Ala. 887 ; Knott v. Clements, 18 Ark. 335 ; Ryan v. May, 14 HI. 491 ; Price ». R.R., 18 Ind. 187 ; Dean ,;. Boyd, 9 Dana, 171 ; IClifford v. Coney, 1 Mass. 500 ; Shaw v. Dutcher, 19 Wend. 219, accord; Powys V. Williams, 3 Lutw. 514 ; Evans v. Stevens, 4 T. R. 224, contra. — Ed. ' Tresham's Case, 9 Rep. 1106; Bonham's Case, 8 Rep. 1206; Tumor's Case , 8 Rep. 133'5 ; Palmer v. Stone, 2 Wils. 96 ; Alexander v. Porter, Litt. 841 ; Marshall «. Freake, Palm. 287 ; Nicholson v. Simpson, 1 Stra. 297 ; Woodward v. Robinson, 1 Stra,, i 302 ; Lockwood v. Nash, 18 C. B. 536 ; Spencer v. Southwick, 11 Jolins. 573 ; Mep cein V. Smith, 2 Hill, 210 ; Frost v. Hammett, 11 Pick. 75 accord. — Ed. /; SECT. III.J TIPPET V. MAY. 25 TIPPET AND Othees V. MAY and Two Others. In the Common Pleas, April 30, 1799. [Reported in 1 Bosanquet Sf Puller, 411.] Declaration in assumpsit again st thre e. Two ot" the defen dants plead ed a debt of' recor d by way o f set-of f, without taking any notice of the third. The plaint iffs replie d mil tiel record,^mA gave a day to ^ produce the record)to the two defendants who pleaded, but entere d-^ no suggestion on the roll respecting the third. T.J To this there was a general demurrer and joinder. /^ Marshall, Serjt., in support of the demurrer. The ground ot this demurrer is, that as two of the three defendants have pleaded, and the plaintiffs have given them a day to produce the record, with- out suggesting any thing with respect to the third, the action is dis- continued as to him, and that a discontinuance as to one defendant is a discontinuance as to all. It is a settled rule of law that a suit must be continued from its commencement to its conclusion without any chasm ; and that any chasm is a discontinuance. In Gilb. Hist. C. P- 155, 158, it is said that if a defendant pleads to part, and says nothing to the other part, and the plaintiff replies to such plea without taking judgment for the part not answered to, it is a discontinuance, because he does not follow his entire demand in the court. So if he demur generally, for he ought to have prayed judgment upon nil (licit for that part. 1 Rol. Abr. fp. 487, 488. And this rule applies not only to the subject-matter of the cause, but also to the parties. 1 Rol. Abr. fo. 488 ; Com. Dig. Pleader (W. 3). Thus in Bro. Abr. Discontinuance de Process, pi. 22. Replevin against three, avowry by one, and so to issue, and the two others said they came in aid of the avowant, yet if the two have not a day given and continuance on the roll from day to day, all is discontinued ; and, pi. 8, replevin against three of a taking in S., one appeared and avowed for himself in B., and traversed the taking in S., and made avowry to have a return which passed for the plaintiff, and he prayed judgment, and it was determined that as no proceeding was against the other two, all was discontinued, for the proceeding shall be made to continue against those who make default, otherwise it is a discontinuance. Green v. Charnock and Another ^ is to the same effect. The rule holds also where a plaintiff makes default. Paston v. Lusher.'^ If it be contended on the other side that a plea of set-off by two defendants in an action against three is bad, Biill the plaintiffs will not be entitled to judgment on this record, for by the discontinuance the cause is out of court. 1 Cro. Eliz. 762. 2 Yelv. 155. 2t) MARSH V. BDLTKEL. [CHAP. I. Shepherd, Serjt., contra. Though the question immecliately in issue on this demurrer be, whether the replication which the plain- tiffs have put in be sufficient in law to answer the defendants' plea, still if we can show that the plea itself is bad, they cannot have judg- ment. Indeed, if we were to amend our replication, the defendants would be under the same difficulty. No authority has been adduced to show that discontinuance is the subject of demuirer. Etke, C. J. There is no rule in pleading more certain than that if a party can trace back the vices in the pleadings to the first fault, he haa a right to take advantage of it on demurrer. But he cannot ask the judgment of the court unless he appear on the record to be capable of demanding judgment. Now in this case the plaintiffs , h aving replied to a plea b y two of the defendants without taking notice of the tnu-g agamst whom they declared^ h ave madea discontinuance ; the cause, therefore, being^ discontinued , judgment must be given against the plaintiffs,, for they are not in a situation to take advantag e o f the badness of the defendant's plea. KooKB, J. The plaintiffs, not being in court, cannot call upon the court to give them judgment. I'er Curiam. Leave given to amend on paym,ent of costs? ,„^ MARSH, ExEctJTOE op QUINLAN v. BULTEEL. ■^"^ *' In- the King's Bench, Hilary Teem, 1822. 1—, , [Reported in 5 Barnewall Sf Alderson, 507.1 1 Covenant upon a deed, whereby the parties agreed to submit cer- tain differences to the award of arbitrators. The first ^ count of the declaration stated the defendan t's covena nt to obey, abide by. ajid per- form the award , and that he would no t by affected delay, or otherwise, hinder or prevent the arbitrators from making- their awar d. It then stated that the arbitrators duly made their award, and that they thereby directed that the defendant should pay to the plaintiff certain sums therein mentioned. The breac hes assign ed were, tha t the defend- ant-djd not ^ay those sums of money. The defend ant plea ded to the first count, that before the ar bitrato rs made t heir awar d, he^the defend- imt, h^ deed, revok ed their au thori ty, of which deed and revocation of their authority the arbitrators, before the making of the award in the first count mentioned, had notice. To this plea the plaint iff demnrred. 1 Cf . Lockwood V. Nash, 18 C. B. 543. — Ed. ^ Only so much of the case is given as relates to this count. — Ed. ^ SECT. III.] MARSH V. BULTEEL. 27 Chitty, for the plaintiff. The plaintiff is entitled to judgment on the demurrer to the plea to the first count. The ground of action stated in that count is the breach of the covenant to perform the award. The plea shows the award to be void, but admits that the defendant has committed a breach of another covenant set out in the declaration, by which the parties covenanted not to prevent the arbitrators from mak- ing their award. In Charnley v. "Winstanley,^ this court refused to arrest the judgment in an action brought upon an arbitration deed, where one of the parties to the submission had become a feme covert subsequently to the submission and before the award: the breach alleged in the declaration being non-payment of money pursuant to the award, on the ground that it appeared upon the whole record that one of the parties had been guilty of a breach of the covenant not to abide by the award. Le Bret v. Papillon.'^ Now, here it appears by the defendant's plea that he has broken that covenant by revoking the arbitrators' authority, and therefore that case is expressly in point. Gaselee, contra. The plea is a good answer to the cause of action alleged in the first count, which is substantially the non-payment of the money awarded. The plea shows that the award is wholly void. If the argument on the part of the plaintiff is to prevail, he will derive the same advantage from this action as if the award had been good. At any rate, that would be the case if the plaintiff had declared in debt upon the award, for in that case he would have been entitled to recover the whole sum awarded. (The court then desired him to pro- ceed to the other point.) Abbott, C. J. I am of opinion that the defendant is entitled to judgment upon the demurrer to the plea to the first count of the decla- ration. The ground of complaint in that count is the non-payment of money pursuant to the award, or, in other words, a breach of the covenant to perform the award when made. It appears by the plea that the defendant, by countermanding the authority of the arbitrators, has broken the covenant to abide by the award, or that whereby he stipulated not to hinder the arbitrators from making an award ; and it is urged on the part of the plaintiff that although tliis plea is an answer to the cause of action suggested in this count, yet that, inasmuch as it appears upon the whole record that the defendant has been guilty of a breach of covenant, the plaintiff is entitled to. judggieiiji upon^ tjjat count, and the case of Charnley v. Winstanley = has been relied upon That case, however, is very distinguishable from the present. There it appeared upon the face of the plaintiff's count that the award was made after one of the parties to the submission had become a feme covert. 1 5 East, 266 2 4 East, 502. ^ 5 East, 266 28 DAVIES V. PENTON. [CHAP. I. Her marriage was m itself a revocation of the authority of the arbitra- tors, acd therefore was a breach of the covenant to abide by the award. In this case, the breach of that covenant is disclosed only by the defendant's plea, and it never has been held that a plaintiff who seek s to recover damages for one ground of action stated in his count i s entitleri to recover IH \'k&l()liiit ol another disclosed by the defend'airt' s plea, I am of opinion that a plaintiff can recover only in respect of ih e ground of action stated in his declaration. Batlet, J. For the reasons given by my Lord Chief Justice, I am also of opinion that the defendant is entitled to judgment on the de- murrer to the plea to the first count. HoLROYD, J. I am of opinion that the defendant is entitled to judgment upon the demurrer to the first plea. This case is very distinguishable from Charnley v. Winstanley, for the reasons already given by my Lord Chief Justice ; and I think that the plaintiff , who , by his declaration, s eeks to recover damages for the causes of action therein state d, o ught not to be allowed to recover in respect of another cause of action, disclosed by the defendant's iplea.^ Judgment for the defendant upon the demurrer to the plea to the first count? DAVIES V. PENTON. In the King's Bench, Febritaet 6, 1827. [Jieported in 6 BarnewaU Sf Cresswell, 216.] Dbclaeation stated articles of agreement of the 23d December, 1823, made between plaintiff and defendant, which recited that de- fendant for many years then past carried on the practice and profes- sion of a surgeon, apothecary, and accoucheur, and had established a considerable connection in such business ; and that, having determined to withdraw from the same, he had agreed with the plaintiff for the sale to him of all his then stock, and of the good-will of his said busi- ness ; and also to demise to him his house in Great Surrey Street, in which the business was then carried on, upon the terms following that is to say, the sum of £800 to be paid for the good-will of the business of a surgeon, apothecary, and accoucheur, and the influence and recommendation thereinafter agreed to be given by defendant ' Best, J., was absent at chambers. 2 Butt's Case, 7 Rep. 24 6, 25 a ; Head v. Baldrey, 6 A. & E. 459, 468, accjrd. Se« Tns Co. V. Stanton, 57 III. 359. —Ed. SECT. III.J DA VIES V. PENTON. 29 unto and in favor of plaintiff, and the lease of the house in Great Sur- rey Street, for the term of nineteen years and one-quarter, subject to the yearly rent of £80 ; and the stock in trade to be taken and pur- chased by plaintiff at a fair valuation ; and that in part pursuance of the agreement defendant had accordingly demised to plaintiff the said messuage or tenement, with all and singular the appurtenances, for the term of nineteen years and one-quarter of a year, wanting two days, from the 25th of December, 1823, at the yearly rent of £80. The articles of agreement then stated that defendant, in further pursuance of the said agreement, and for and in consideration of £400 to the defendant in hand paid by the plaintiff at or before the signing of the articles of agreement, and for and in consideration of the further sum of £400 (being the remainder of the said sum of £800 consideration money thereinbefore mentioned), secured to be paid to defendant by a bill of exchange, bearing even date with the agreement, drawn by defendant upon and accepted by plaintiff for the said sum of £400, and payable twelve months after date ; and of the further sum of £170 4s. (being the ascertained value of the stock in trade, goods, fixtures, and effects used in and about the said business or profession, as agreed upon between plaintiff and defendant), also secured to be paid to defendant by a certain other bill of exchange, bearing even date with the said agreement, drawn by defendant upon and accepted by plaintiff for the said sum of £170 4s., and payable at two months after the date thereof, agreed to and with plaintiff in manner follow- mg ; that is to say, that he, defendant, should permit plaintiff to have, Qse, and exercise the said business, practice, and profession of a sur- geon, apothecary, and accoucheur, from 24th December, 1823, and to carry on the same in and upon the same house and premises, and in the same way and manner as defendant had been used and accustomed to do ; and to have, receive, and take the whole of the profits and produce of such practice and profession, to and for his own use and benefit ; and that defendant should use his best endeavors and influ- ence with all his patients and friends, to prevail upon them to employ plaintiff in the way of his said practice and business. And plaintiff did Aereby agree to and with defendant that he, plaintiff, would well and truly pay and dischai-ge the said two several bills so drawn upon and accepted by him, plaintiff, for the sums of £400 and £170 4s. as aforesaid unto defendant, as and when the said bills of exchange re- spectively became due and payable; and the defendant did by the said articles of agreement, lastly, promise and agree to and with plain- tiff, that he, defendant, should not, nor would at any time thereafter, use, exercise, and carry on the art, business, or profession of a surgeon, apothecary, or accoucheur, within the distance of five mile? from the 3U DATIEB V. PENTON. g^AP. L said messuage, being No. 12 in Great Surrey Street aforesaid, for his own private benefit or emolument, in any manner howsoever ; and for the true performance of all and singular the agreements aforesaid, each of them, defendant and plaintiff, did thereby bind and oblige himself unto the other of them, in the penal sum of £&G0, to be recoverable for breach of the said agreement, in any court or courts of law, as and by way of liquidated damages. The declaration then stated mutual promises. Breach, that the defend nnt did use, exerci se, and carry on tlie busin ess or profe ssion of a s urge on, apothecary, and accoucheur, within the distance of five miles from the said messuage. Elaa, that" plain tiff did not well and truly pay and discharge the said two s ever al bills of exchange, according' to the form and effect of the articles of agreement m that behalf, but wholly n eglect ed and r efus ed jo to do, and therein failed and made default ; and thereupon and according to ^he tenor and effect, true intent, and meaning of the articles of agree- ment, the plaintiff forfeited and became liable to pay to defendant the said sum of £500 in the articles of agreement mentioned, as and by way of liquidated damages. The plea t hen al leged further, that the jilaintiff at the commencement of the suit was i ndebt ed to the defend- ant in the furth er surn o f £5 00 for work an d labo r, &c. Replication" (except as to so much of the plea as related to the penal sum oi £500 first mentioned), that plaintiff before and on the 23d December, 182.3, was a trader, 'III, ■-** "" i ' - II - I - I II ^ ^ I \_ I - II ' ^ ^ ■ ' ~ ^ ■ declq-rati on ; and several cases have oeen "cited to sustain that posi- tion. But it will be found on examination that the point has nev-er been directly and necessarily adjudged. The doctrine was first started in Wheeler v. Curtis,' and was there supposed to result from the well- established rule that the defendant cannot both plead and demur to the same count. It was said that the defendant should not be allowed to do indirectly what he would have no right to do directly. But the question whether the declaration was good or bad was not de- cided. The cause went off upon other grounds; and the point in question was not necessarily settled. In Dearborn v. Kent," the dic- tum in the first case was repeated ; but it was expressly held that the declaration was sufiicient ; so that it was wholly unnecessary to inquire whether the defendant was at liberty to make the question or not. Russell v. Rogers ' is the next case ; and there it was not decided whether the declaration was good or bad. It was apparently good ; BO that the point in question did not necessarily arise. In Miller v. Maxwell,^ this doctrine was mentioned for the last time ; and the same learned judge who first started it went a great way towards knocking it on the head. In that case the defendant pleaded the general issue, and two special pleas. The plaintiff demurred to the special pleas, and they were adjudged bad ; but the defendant was allowed to go back and attack the declaration ; and judgment was given against the plaintiff for the insufficiency of that pleading. Now, although the learned judge who delivered the opinion of the court took a dis- tinction between a defect in the declaration which would not be cured by a verdict, and one which could only be reached by a demurrer, the principle of that case is directly opposed to the dicta which had pre- ceded it. I It is quite clear that the defendant cannot both plead and demur to Ithe same count. And it is equally clear that, at the common law, he jcould not have two pleas to the same count. Indeed, the two things, though stated in different words, are only parts of one common-law 1 11 Wend. 653. 2 14 Wend. 183. 3 15 Wend. 351. ♦ 16 Wend. 9. BELT. III.] AUBURN AND OWASCO CANAL CO. V. LBITCH. 33 rule; to wit, that the defendant cannot make two answers to the same pleading. The statute of 4 & 5 Anne, c. 16, was made to remedy this inconvenience ; and it allowed the defendant, with the leave of the court, to plead as many several matters as he should think necessary for his defence. With us, leave of the court is no longer necessary. 2 R. S. 352, § 9. The statute does not say that the defendant may both plead and demur; and consequently he cannot make two such answers. But he may plead two or more pleas ; some of which may terminate in issues of fact, to be tried by a jury; while others may result in issues of law, to be determined by the court. And when- ever we come to a demurrer, whether it be to the plea, replica- tion, rejoinder, or still further onward, the rule is to give judgmen t against the party w ho committed the first fault in pleading , if the fault be such as wouia make the pleading bad on general demurrer. This rule has always prevailed. It was the rule prior to the statute of Anne ; and to say that the defendant, because he pleads two pleas, one of which results in a demurrer, cannot go back and attack the declaration, would be to deprive him of a portion of the privilege which the legislature intended to confer. He cannot plead and demur at the same time, because the common law forbids it ; and the statute does not allow it. But he may plead two pleas; and he takes the right with all its legitimate consequences, one of which is, that whenever there comes a demurrer upon either of the two lines of oleading, he may run back upon that line to see which party com- mitted the first fault ; and against that party judgment will be ren- dered. Aside from the dicta in question, there is not a shadow of authority, either here or in England, for a difierent doctrine. Although it seems that no case upon this point has found its way into the books, I well remember that since the decision in Miller v. Maxwell,^ it has been several times announced from the bench that in a case like this the defendant was at liberty to go back and attack the declaration ; and I think the point has been more than once directly decided. I know that the late Mr. Justice Cowen entertained and expressed that opinion, as I did myself; and it is also the opinion of my present associates. I would not lightly overrule so much as a mere dictum, if it was of the nature of a rule of property, and had stood long enough to become one. But this is not a question of that kind. Judgment for the defendant.^ 1 16 Wend. 9. 2 Bishop V Quintard, 18 Conn. 407 (semhh) ; Miller v. Maxwell, 16 Wend. 9 [sem- bh) ; Shaw «. Tobias, 3 Comst. 188, accord; Brawner u. Lomax, 23 111. 496 ; Ward p. Stout, 32 111. 899 ; Culver v. Bank, 64 111. 529 ; Wheeler v. Curtis, 11 Wend. 653 (semble) ; Dearborn v. Kent, 14 Wend. 183 (semble) ; Kussell u. Rogers, 15 Wen(' 851 [semble), contra. — Ed. 3 84 GOULD V, LASBURY. [CHAP. II., CHAPTER II. PLEAS BY WAT OF CONFESSION AND AVOIDANCE SECTION I. In Discharge. GOULD V. LASBURY. In the Excheqitee, Teinitt Tebm, 1834. [Reported in 1 Crompton, Meeson, ^ Roscoe, 254.] Declaeation in debt on simple contr act. Plea, that the defend- ant was discharged, under the Insolv ent Debtors' Act, "from the debts and causes of action, jf n-nj ^ and each and every of them." Special demurr er, assigning for cause that the said plea did no t con- fess a nd avoid the cause of action, &c . ; and that the plea neither set "out the discharge specially, nor was pleaded generally, in the form given by the statute. Erie, in support of the demurrer. There are two defects in this plea: First, the well-known rule of law, that a plea must either tra- verse, or confess and avoid, is violated. A plea like this, of confession and avoidance, must admit and confess the matter stated in the dec- laration distinctly. Taylor v. Cole^ is a decisive authority on this point. So in Griffiths v. Eyles,^ where a hypothetical replication was attempted, Chief Justice Eyre said that the party could not plead hypothetically. The admission here is most clearly hypotheti- cal. Secondly, if the statute gives a form of pleading, the party must either conform to that form, or must plead in the more special form, which the usual rules of law would present. Sheen v. Garrett.' Here the plea is general, that the party was discharged ; but it does not fol- low the form given by the act, which contains no such words as " if any." Kelly, contra. The general rule, that a party must traverse, or confess and avoid, every material allegation, is not disputed ; tho 1 3 Term Rep. 292. 2 1 Bos. & PuU. 413. » 6 Bing. 686. ■iECT. I.] GOULD V. LASBURT. 35 question is, whether this plea does not substantially confess the matter in the declaration. Similar expressions are used in numerous instances and are to be found in all the forms in the books of pleading. In pleas of the Statute of Limitations, of infancy, of bankruptcy, of the Insolvent Debtors' Act, and of set-off, it is usual to use words of this description. The expressions, " if any such there be," or " the sup- posed," are common in all these forms, i The usual words were " the supposed " causes of action, which is quite as hypothetical an expres- sion as " if any." In a case of Gale v. Capern,^ in the King's Bench, which is not yet reported, the declaration was for goods sold. There was a plea of set-off on a bill of exchange ; the replication alleged ■that the "supposed" cause of set-off did not accrue within six years, upon ■n^iich issue was taken. It was held at the trial that the hand- writing of the acceptor and indorsers was admitted, and need not be proved. On motion for a new trial, it was contended that the word " supposed " prevented any such admission ; but tbe court ield that the word " supposed " did not at all alter the effect of the replication. [Aldekson, B. You would contend that the expression " supposed " is no more than a protestation.] Exactly so. The object of the rule of pleading is not that there should be an absolute, unqualified, and express confession, but that there should be what may amount to a confession in the particular suit. There must be such a confession as will relieve the other party from the necessity of proving it. [Loed Lys-dhuest, C. B. The word " supposed " may perhaps be consid- ered as no more than "alleged." I find the word "supposed" in several of the forms you have adverted to, but not the words "if any such there be."] In a plea in abatement for non-joinder, the words, "if any such there be," are invariably used. The defendant says suf- ficient if he admits for the purpose of the particular action, though he protests for the purpose of any other. The forms alluded to show that it is not necessary that the confession should be in the unqualified form contended for on the other side. If the plaintiff had replied generally, he would not have been bound to prove the cause of action at the trial. The present form is taken from a late edition of an approved book of pleading. M-le, in reply. The plea does not amount to an unqualified ad- mission. The admission is qualified and hypothetical. In Taylor v. Cole, Buller, J., said, "It is a rule in pleading that the party justi- fying must show and admit the fact." The illustration of the plea in abatement is unfortunate for the defendant. It is remarkable that the plea in abatement is the only instance in which the words, " if any such there be," are used. The word "supposed" is nothing more 1 1 Ad. & Ell. 102. |t|- o6 GOULD V. LASBURY. [CHAP. II. than " alleged." Now, when the case of a plea in abatement is consid- «fed, the exception in that case serves rather to strengthen the general rule. The rule as to confessing and avoiding is only applicable to a plea in bar. A plea in abatement need not confess and avoid ; the defendant is not bound to traverse or confess all matters alleged ; ha has at that stage nothing to do but to show that the plaintiff may have a better writ, and the judgment is not to be that the plaintiff is to recover or not on the allegations upon the record, but that the writ be quashed, or that the defendant answer over. It is singular that it is only in the case of such a plea that the words "if any" appear to be usually adopted. The argument from the doctrine of protestations is equally inapplicable. If a person has to answer when he either is bound or chooses to answer one matter only, there are cases where he may take the other matters by protestation ; but it is different as to the matter which a party assumes to be answering. Besides, the facts taken by protestation are admitted in the action by a well-known rule of law; but here the admission is coupled with a qualification. In Gale V. Capern, the only question was as to what was the issue to be tried. The handwriting was not in issue, but that had nothing to do with the question of the form of pleading. If it could be matter of doubt on the trial, we have a right to say on special demurrer that it is not well pleaded. [Alderson, B. In Taylor v. Cole and Grif- fiths V. Eyles the fact was in the peculiar knowledge of the party pleading.] So, here, the defendant must have known whether he was indebted or not. Lord Lyndhuest, C. B. It is difficult to distinguish the expres- sion " supposed " from that of " if any." As there has been a deci- sion in which a construction is said to have been put on the word " supposed," we will confer with the judges of the other courts. Cur. adv. vult. On a subsequent day Loed Lyndhuest, C. B., said : In the case of Gould V. Lasbury, there was a plea of a discharge under the Insolvent Debtors' Act, which was contended to be bad, because it did not directly confess and avoid the matters alleged in the declaration, but merely stated the discharge from the said causes of action^ " if anv." A similar point having been argued in the King's Bench, we have conferred with the judges of that court on the subject, and we concur with them in thinking that the words vitiate the plea . T he demurrer , t herefore, must be allowed . Judgment for the plaintiff.^ 1 Griffiths V. Eyles, 1 B. & P. 413 ; Margetts v. Bays, 4 A. & E. 489 ; Martin v. Swearingen, 17 Iowa, 346 ; Anson v. Dwight, 18 Iowa, 241 ; Morgan v. Ins. Co., 37 Iowa, 359 ; Conger ;;. Johnston, 2 Den. 96 ; Comm. Bank ti. Sparrow, 2 Den. 97 ; Hart v Meeker, 1 Sandf. 623 ; Hamilton v. Hough, 18 How. Pr. 14, accord. See McCormick ... Pickering, 4 Comst. 276. — Ed. SECT. I.J GOODCHILD V. PLEDGE. 37 GOODCHILD V. PLEDGE. In the Exchbquee, Eastee Teem, 1836. [Reported m 1 Meeson ^ Welsby, 363.] Debt , in the sura of £20, for goods sold and delivered ; for board. lodgingj_and other necess aries, found and provided by the plaintiff for the servant of the defendant, and at his request ; and on an account stated. Plea s : first, nunq uam indebitatu s ; secondly, as to the first count, that before the commencement of the suit, and when the said sum of £20 in that count mentioned became due and payable, to wit, on the 1st of January, 1836, the defend ant paid to the plain tiff the said s um of £20, according to the defendant's said contract and liability in the said first count mentioned : concluding to the country. The latte r plea w as specially demurred to , on the ground that it ought to have concluded with a verification. Mansel^ in support of the demurrer, relied on Ensall v. Smith.' The plea of payment is clearly treated in the new rules as a plea in confession and avoidance. It makes no difference that it is stated here that the defendant paid when the money became due according to the contract : he still admits the cause of action. The plea of solvit ad diem is an analogous one. [Paeke, B. There it is clearly new matter, being, in effect, a plea of performance of the condition in the bond.] The plaintiff has a right to an answer to the allegation of pay- ment in the plea; and if it be true that the money was so paid, he may enter a nolle prosequi as to that part of the demand, and go on for the rest. Ogle, contra. This plea is quite distinguishable from that in Ensall V. Smith. Here the declaration is in debt, not in assumpsit ; and the defendant meets the claim by stating that, when the debt accrued, he paid the money according to his contract and liability. In Ensall v. Smith, the plea was merely that the defendant has paid the same ; but here, if the payment was after breach, or after request, it could not be according to the contract and liability. It is a simple denial of the breach, not introducing new matter, and therefore rightly concludes to the country. The defendant shows that there never was any suable cause of action, because the moment the debt accrued, he paid it. [Paeke, B. Is the statement of the breach in debt any thing more than a mere form ? The moment the goods are delivered, is there not a cause of action, throwing the proof of its discharge on the defendant ? If the breach is mere form, you cannot traverse it ; then your plea is ^ 1 C, M. & E. 622 ; s. o. nmnine Ansell v. Smith, 3 Dowl. P. C. 193. S8 EAVESTAPF V. EUSSELL. fCHAP. T. in discliai-ge, and ought to conclude with a verification. Su]->pose n/i debet pleaded, under the old foi-m ; would it not be sufficient to prove the debt contracted ? The new general issue, that the defendant never was indebted, that is, at no instant of time, was framed for the express purpose of making all these defences pleadable by way of discharge.] This plea shows that the plaintiff never was entitled to sue. Lord Abingee, C B. If this is payment, as it undoubtedly is, it is a plea in confession and avoidance within the new rules. Paeke, B. I admit that this plea is distinguishable from that iu Ensall V. Smith. But here also the d efendant includes in the plea a somethi ng that is_ not. a11pgpr| jn the declaration ; becaus e it is not stated in the declaration that the defendant did not pay according to the con - fract. I think it will be found, on looking into the cases, that the statement of the breach is mere form ; if so, t he plea admits the debt, and is a pl ea in confession and avoidance ; and it is so treated in the new rules. Under the general issue, as now framed, you deny the existence of a debt at any one time : if you admit a deb t, you must plead every matter specially by which you seek to discharge i t. Aldeeson, B. I£_thi3 is payment, it is p ayment of a debt ; then it admits a debt ; therefore it is in discharge, not in denial. Ogle then obtained leave to amend, on payment of costs. EAVESTAFF v. RUSSELL. In the Exchequer, Juice 22, 1842. [Reported in 10 Meeson ^ Welsby, 365.] Debt for goods sold and deliveredj and on an account stated. Plea , that the said sever al supposed cause s _of action in the declaration men- tioned did not accrue to the plaint iff within six y ears n ext before the commencement of the suit. Special demurrer, on the ground that th« plea, although it professed to be_ pleaded in confession and avoid ancet did not c o ntain any s uffici ent confess io n that' the plaintiff ever had a ny cause o f action . Jomdef in demurrer. Peacbcic, in ''supp ort of the demurrer. The term " supposed causes of action " does not amount to a sufficient admission that there ever was a cause of action in the plaintiff. Gale v. Capern ^ may perhaps be relied on for the defendant. There a plea of set-off stated that the plaintiff made bis promissory note payable to A. C., which was dulj I 1 Ad. & E. 102 ; 3 Nev. & M. 863. SECT. I.] EAVESTAPF V. RUSSELL. 59 indorsed and delivered to the defendant after the death of A. C.,hj his administrator, and was unpaid. The plaintiff replied, that " the said supposed debt and cause of set-off, upon the said promissory note, did not accrue to the defendant within six years ;" and it was held that the replication admitted not on.'j the making of the note, but also the in- dorsement of it to the defendant. But that case is distinguishable, because there the replication expressly referred to the cause of action " upon the promissory note." In Margetts v. Bays, a plea that " the said supposed debt in the declaration mentioned, if any such there be, did not accrue within six years," was held bad, as not sufficiently con- fessing and avoiding the debt; and on Gale v. Capern being cited. Lord Denman, C. J., said, " That was after trial ; but here the form of the plea is specially demurred to, which makes all the difference." [Paeke, B. Gould V. Lasbury is an authority against you. There this court, after conference with the Court of King's Bench, held that a plea in bar, which alleged that the defendant was discharged under the Insol- vent Debtors' Act " from the said debts and causes of action, if any and each and every of them," was bad ; but Lord Lyndhurst, in the course of the argument, observed that " the word ' supposed ' may, per- haps, be considered as no more than ' alleged,' " and stated that he found that word in several of the forms adverted to at the bar, but not the words " if any such there be."] His Lordship afterwards says that " it is difficult to distinguish the expression ' supposed ' from that of ' if any.' " [Aldeeson, B. Surely the supposed cause of action must mean the alleo-ed cause. Paeke, B. In Margetts v. Bays the words made it doubtful whether any debt existed at all.] Udall, contra, referred to Gwillim v. Daniell,^ and was stopped by the court. Paeke, B. There can be no doubt whatever that the word " suij- posed " is a sufficient admission of a cause of action . It is the usual and ordinary mode of pleading in cases of this nature; and I have seen instances without number, where, afler a plea of the general issue, a special plea has followed, professing to answer the supposed causes of action in the declaration mentioned. The words "if any" stand on a different footinsy, and although sufficient in a plea in abatement, they are not so in a plea in bar, because they leave it doubtful whether any debt at all ever existed. Aldeeson, B., and Rolfe, B., concurred. Judgment for the defendant? 1 2 C, M. & R. 68. 2 Gale V. Capern, 1 A. & E. 102; Gwillim v. Daniell, 2 C, M. & R. 68 ; Scadding v Byles, 9 Q. B. 858, accwd. — Ed. 40 BEIND V. DALE. [CHAP. 11. SECTION II. In Excuse, (a) Special Assumpsit. BRIND V. DALE. In the Exchequbb, Trinity Teem, 1837. [Reported in 2 Meeson S/- Welsby, 776.] Assumpsit. The declaration stated that the defend ant, before and at the time of the making of the promise thereinafter mentioned, was a common carrier of goods in and by a certain cart, from divers places to divers other places ; and thereupon the plain tiff theretofore, to wit, on the 14th November, 1836, at the request of the defendant, caused to be delive red to him, as such carrier, a c ertain tr unk containing cer- tain goods and chattels therein particularly described, to be taken care of and safely and securely carried and conveyed by the defendant, as such carrier, in and by the said cart, from a place called Nicholson's Wharf to a place called Brook's Wharf, and there to be safely and securely delivered by the defendant for the plaintiff. The declaration then alleged in the usual terms a promise by the defendant safely to carry and convey and deliver the goods, and a breach in not carrying safely, whereby the trunk a nd its conte nts were lost . Fifth plea, that at the said time when he, the defendant, received the said goods and chattels from the plaintiff, and at the time the said supposed i^romise of the defendant was made, an express condition and agreement was then made and entered into between the plaintiff and the defendant ; that is to say, that whilst the defendant carried and con- veyed the said trunk with the said goods and chattels in and by his said cart from the said place called Nicholson's Wharf to the said place called Brook's Wharf, he the said plaintiff would accompany and follow the said cart of the defendant, and watch and protect the said goods and chattels from being stolen or lost out of the said cart; but that the plaintiff, contrary to the said condition and agreement in that behalf, wholly neglected and refused to accompany and follow the said cart, or to watch and protect the said goods and chattels from being stolen or lost from the said cart ; by reason whereof, and not by SECT. II.] BBIND V. DALE. 41 reason of any negligence, carelessness, or improper conduct in the de- fendant or Lis servant, the said goods and chattels were lost. Verifi- cation. Special demurrer, assigning for causes, first, that the said plea dc£s_ not properly confess the promise in the declaration ; secondly, that the matter of defence in the said plea amounts to the plea of non- assumpsit, and ought to have been so pleaded. The marginal note stated that the plaintiff would also contend tliat the plea was bad in substance, inasmuch as the engagement entered into by the plaintift', without consideration, could not limit the defendant's liability as a common carrier. Jiarstow, in support of the demurrer The defendant is in this dilemma, — either the plea amounts to the general issue, or it is no answer to the action. It sets up a contract different from and incom- patible with that alleged in the declaration. The court then called upon JV. a. Watson, to support the plea. The declaration alleges the defendant to be a common carrier, and avers a delivery to him as such. Though that allegation be true, there may yet be a special agreement, by way of qualification of his general liability. [Paeke, B. The declaration says, the goods were delivered to be taken care of by the defendant; the plea says they were not.] The defendant says, in substance, " I admit I received the goods as a common carrier, but I made also a collateral agreement that the plaintiff should watch them." The defendant would have his remedy over against the plaintiff for not watching the goods pursuant to his agreement ; and so, to avoid circuity of action, it is set up in the plea in discharge of the plaintiff's cause of action. [Paeke, B. The effect of the ao-reement is to pr o- tect the carrier from theft or loss : that qualifies the contrac t.1 If the court is of opinion that it amounts to a qualification of the plaintiff's contract, not to a substantial and collateral contract, the plea certainly cannot be sustained. Per Curiam. Judgment for tlie plaintiff } I ^ [ ^ Sharland v. Leifchild, 4 C. B. 529 ; Weedon v. Woodbridge, 13 Q. B. 462 ; Mor- ) gan V. Pebrer, 3 B. N. C. 457 ; Williams v. Vines, 6 Q. B. 355 ; Nash u. Breeze, 11 M. & W. 352 ; Heath v. Durant, 12 M. & W. 438 ; Mounsey v. Perrott, 2 Ex. 522 ; Whit- taker V. Mason, 2 B. N. C. 359 ; Smith v. Dixon, 7 A. & E. 1, accmd. See, as illustrating the same principle, Adams v. Jones, 12 A. & B. 455 ; Jones o. Corbett, 2 Q. B. 828 : Webb V. Spicer, 18 Q. B. 899; Weedon v. Woodbridge, 13 Q. B. 480; Smith v. SdsM, 6 C. B. N. 8. 770; Trott v. Smith, 12 M. & W. 688. — Ed. *2 t^K/^ ^ " SMAET V. HYDE. [CHAP. II. )^ SMART V. HYDE. In the Exchequer, Tkinity Teem, 1841. [Reported in 8 Meeson ^ Welsby, 723.] AssuMrsiT. The declaration stated that, in consideration that the plaintiff would buy of the defendant a mare at a certain price, the dg,- fendan t promis ed the plainti ff that the mare was sound, and averred as a brea ch that the mar e was not sound. The defendant plfa.d ed, amongst other pleas, thirdly, that, befor e the prom ise, he the defendant sent the mare to a certain place for the sale of horses, called Lucas's Repository, there to be sold according to c ertain ruj ps. which were in the woi-ds following : " Terms of pri- vate sale. A warrant v of soundness, when given at this repository, will remain in force until twelve o'clock at noon of the day next after the day of sale, when it will be complete, and the responsibility of the seller will terminate, unless in the mean time a notice to the contrary, accompanied by the certificate of a veterinary surgeon, be delivered at the ofiice of R. Lucas ; such certificate to set forth the cause, nature, or description of any alleged unsoundness ; " of all which the plaintiffj before and at the time of making the said promise, had notice. The plea then averred that the sale was a private sale, and that the jrom - ise, and the buyin g from the defend ant, took p lace subject to the said rules and r egula tions touching the private sale of horses, and that the sam»» were agreed to by the parties ; and although the time limited by the said rules for the delivery of the notice and certificate had elapged \)efore the commencement of this suit, yet no such notice or certificate had been delivered by or for the plaintifi", at the office of the said R. Lucas. Verification. SpeciaTdemurrer, assigning for causes, that the plea amounted to the general issue ; that whereas the plaintiff had ^ de clared onanabso - lute and unqualified undertaking, that the mare was sound, the de - fendant^had not confessed and avoided the same, nor had, directly ^^»»i^.^ "11 deni"ed sucP' promise , but had stated matters for the purpose of quali- fying "such promise, and of showing that the warranty remained in force only until twelve at noon of the day after the sale, and was a waiTanty' against such unsoundness only as the plaintiff might discover within such period. Grompton, in support of the demurrer. The plea attempts to show that there was a qualification of the warranty, and that the can- tract was different from that declared upon, and it therefore amounts to the general issue. [Paeke, B. The warranty, a^ set out in the 5ECT. II.J SMART V. HYDE. 43 declaration, is an absolute one. The plea admits the statement in the declaration, but sets out new facts, for the purpose of showing that thei-e was no breach of contract ; it does not deny a sale of the horse. or the warranty that the horse was sound. l On the warranty stated in the plea, there is to be no responsibility at all in certain cases, and that is a qualification which might have been given in evidence under the general issue. In Bywater v. Richardson,^ where there was a similar condition, Littledale, J., treats it as a qualified warranty. [Paeke, B. You say that the contract which would have to be proved would vary from that stated in the declaration, and therefore might be given in evidence under the general issue.] Yes. In Latham v. Rutley,^ the declaration stated a contract to carry goods from London, and deliver them safely at Dover ; the contract proved was to carry and deliver safely, fire and robbery excepted ; and it was held to be a variance. Here the contract stated in the declaration is, that the defendant will be generally answerable for the unsoundness of the mare ; but the contract stated in the plea is, that he will not be answerable at all, if the act be not done within a given time. In Latham v. Rutley, Abbott, C J., says, " The I'esult of all the cases upon the subject is, that if the carrier only limits his responsibility, that need not be noticed in pleading ; but if a stipulation be made that, under certain circumstances, he shall not be liable at all, that must be stated." [Parke, B. The contract there stated was a con- tract to carry the goods safely, not a limited contract, if the goods were not affected by fire or robbery. Here the contract alleged is, that the defendant undertook that the mare was sound : that he is to be responsible if unsound is merely an inference from that.J Where a condition^ merely limits the amount of damages, it is true that it need not be stated in the declaration : Clarke v. Gray ; ' but where the con- tract, as in this case, is qualified by conditions, it is a variance to state it as absolute in its terms. In Howell v. Richards,* it was held, that, if a covenant for quiet enjoyment be restrained by any qualifying context, it must be stated, and if not, that the defendant might take advantage of it under the plea of the general issue, as being an untrue statement of the deed in substance and effect. Tempany v. Burnaud = and Browne v. Knill ' are authorities to the same effect. In Whit- taker V. Mason,' the plaintiff declared upon a contract of sale of cer- tain books; the defendant pleaded that the books were sold subject and according to the usage and course of dealing observed among 1 1 Ad. & Ell. 508 ; 3 Nev. & M. 748. 2 B. & Cr. 20 ; 3 D. & K. 211. 3 6 East, 564. * 11 East, 633. 6 4 Campb. 20. « 2 Brod. & B. 395. 7 2 Bing. N. C. 359 ; 2 Scott, 567 44 SMART V. HYDE. [CHA?. 11. booksellers in London ; to which the plaintiffs replied de injuria ; and on demurrer to the replication, it was held that tho plea in effect amounted to the general issue. [Parke, B. There the plea set up a different contract ; here the plea does not alter the consideration or the promise.] The omission to state the qualification entirely alters the legal effect of the contract. The case is distinguishable from Synis V. Chaplin,^ which was an action against a coach proprietor for the loss of a parcel above the value of £10 ; for the omission to de- clare the value of the parcel did not qualify the nature of the contract, but was a matter which avoided it, and therefore required to be specially pleaded. The general rule is, that contracts are entire, and it is only an exception to that rule, that where a part of the contract does not affect the rest which is declared upon, such part need not be stated. J. Henderson, coT\%Ys.. The plea is good. The truth of the facts stated in it is consistent with the contract alleged in the declaration. The defendant says,'' True it is I promised that, the horse was sound, and it tu rned out to be unsound, bu t there were collateral circumstances which prevented your right to sue from arising ." Where, indeed, the plea dis- closes a contract different from that alleged in the declaration, it is bad, as amounting to the general issue. The cases which have arisen since the new rules on indebitatus assumpsit, show that where, if the plea be true, the declaration is not, in that case the plea is open to demurrer, as amounting to the general issue. In Latham v. Rutley, the promise alleged was absolute, but the contract proved was a qualified one, and therefore did not support the promise declared on. But where there is an absolute promise, and the defence is that its effi- cacy h^s been destroyed by matters occurring subsequently, those matters must be specially pleaded. In Hotham v. The East India Company,'' where there was a covenant in a charter-party, that no claim for short tonnage should be allowed, unless such short tonnage were found and made to appear on the ship's arrival, on a survey to be taken by four shipwrights; it was held, that this not being a condition precedent to the plaintiff's right to recover for short tonnage, but a matter of defence to be taken advantage of by the defendants, the not averring performance was no ground for arresting the judgment. That case resembles the present. It was not necessary for the plain- tiff to aver performance of the condition annexed to this warranty; it is sufiicient for him to allege the contract and breach. The fact on which the defendant relies is collateral to the original contract, and therefore ought to be pleaded specially. ' 5 Ad. & Ell. 634; 1 Nev. & P. 129. 2 1 T. R. 038. SECT. LT.J SMART V. HYDE. 45 CroDq^toii, in reply. The contract as set out in the plea affects the consideration stated in the declaration, for the plaintiff is bound to give notice of the unsoundness before a specified time, in order to render it an absolute warranty. Hotham v. The East India Company turns on the distinction between covenant and assumpsit, and on the rule which is peculiar to the former, that a party need not set out more covenants than those of the breach of which he complains ; but that is not applicable to assumpsit. The condition which it is not requisite to state, is such a one as does not qualify the original prom- ise. The narrow point is, does this plea affect the liability which the defendant is under, upon the contract alleged in the declaration ? It is submitted that it does ; it shows that he is not absolutely bound ; whereas, on the contract as stated in the declaration, he is so. Latham V. Rutley is in point. [Paeke, B. In that case there was no prom- ise to carry safely at all events ; here there was an absolute warranty of soundness.] Paeke, B. I am of opinion that the plea is a good plea, and that the defendant is entitled to judgment. The declaration states, that, in consideration that the plaintiff would buy a mare of the defend- ant, the defendant promised that she was sound. Then there is a special plea, which states, that the mare was sent to a repository for the sale of horses, to be sold according to certain rules, which pro- vided that the warranty of soundness was to remain in force up to a certain time only, unless notice of the unsoundness was in the mean time given ; and it goes on to aver that the sale took place subject to those rules, and that no notice was delivered within the time spec- ified. It appears to me that such plea is not bad as amounting to the general issue. It admits the contract and the promise^ b ut shows i t to have been made subject to certain rules which have not been com- pli ed with. What is the meaning of those terms ? It seems to me to be this, that the warranty shall be deemed to have been complied with, unless a notice and certificate shall be delivered to the vendor before twelve o'clock at noon of the day next after the day of the sale. That is not a denial of the warranty, b ut a mere condition an- nexed to i t. No notice and certificate were delivered, and therefore the contract is to be considered as complied with. If the matter relating to the notice had been by way of proviso upon the warranty, it mio-ht perhaps have been necessary to state it in the decl.aration ; but upon that point I give no opinion. It is enough to say that every word of this plea is consistent with the contract stated in the declaration. Aldeeson, B. The meaning of the plea is, that there was a sort of conventional warranty of soundness, and that the warranty was to 46 LTALL V. HIGGINS. [CHAP. II. be considered as complied with, unless a notice and certificate of un- soundness were given within a certain time, which was not done. That is not a denial of the contract, as alleged in the declaration. Gtjkxby, B., and Rolfe, B., concurred. Judgment for the defendant.^ LTALL V. HIGGINS. In the Queen's Bench, Apeil 25, 1843. [Reported in 4 Queen's Bench Reports, 528.] Assumpsit. The decla ration (first count) stated that pJajntifi s, at the time of the making of the promise after mentioned, /iz.', o'n, &c., had engaged one Alexander Christie to act in the capacity of collect- ing clerk to them, the said plaintiffs, but were desirous of having, and required, security for the correctness of the pecuniary transactions of the said A. C. as such collecting clerk with plaintiffs previously to employing A. C. in the capacity aforesaid, whereof defendant then bad notice ; and thereupon afterwards, viz., on, &c., in c o nside ration that plain tiffs, at the request of defendant and of one William Sands, would emp loy A. C . as such collec ting clerk to plaintiffs as aforesaid, defendan t and W. S. then guarante e d to p lainti ffs the c orrectne ss of the p ecuniary tr ansac tions _of the sai d A. C. with plaintiffs, as such collecting clerk to plaintiffs as aforesaid, to the amount of £500, in manner following: that is to say, defendant then undertook and promised plaintiffs to be security to them to the amount of £250. And the said W. Sands, &c. (the like undertaking by Sands). Aver- ment that plaintiffs, relying on the guarantee, &c., did thereupon, to wit, on, &c., employ A. C. as such collecting clerk to plaintiffs as afore- said, and A. C. remained and continued in their emp)loyment as such collecting clerk for a long space, &c., viz., two years then next follow- ing; that, while A. C. so remained and continued, &c., he, A. C, as such collecting clerk, collected and received from divers persons divers debts and sums of money for and on account of plaintiffs and as their moneys, to a large amount, viz., to the amount of £20,000 ; yet A. C. did not correctly, honestly, and faithfully account for or pay the said moneys to plaintiffs, but, on the contrary, whilst he was such collecting clerk to plaintiffs as aforesaid, wrongfully converted and disposed of a great part, to wit, £500, part of the said moneys so by him collected 1 See Clarke v. Gray, 6 East, 564 ; Sharland v. Leifcliild, 4 C. B. 533 ; Weedon u Woodbridge; 13 Q. B. 462. — Ed. SECT. II. J LYALL V. HIGGINS. 47 and received as such collecting clerk to plaintiffs as aforesaid, to hia own use; and thereby the pecuniary transactions of A. C. witli plaintiifi, as such collecting clerk as aforesaid, became and were incor- rect and deficient to that amount ; of all which, »&c. : notice to de- fendant, on, &c., and request to him by plaintiffs to pay them the £250. Breach, non-payment. Pleii- 2. That, before defendant made the promise in the first count mentioned, and before plaintiffs desired or required security for the ' correctness, &c., as in that count mentioned, viz., on, &o., plaintiffs and, A. C. had agreed together that plaintiffs should employ A. C, and that he should serve them, in the said capacity of collecting clerk to ' the plaintiffs as in the first count mentioned, for certain commission and reward to A. C. in that behalf; which agreement was in full force and effect, unexpired and undetermined, at the said time of making the defendant's promise in that count mentioned, and also at and ' during the period and times therein mentioned during which A. C. remained and continued in the employ of plaintiffs as such collecting clerk to them as aforesaid, as in the said first count mentioned. And _ that plaintiffs did not desir e or require s ecuri ty for the correctness of the pecuniary transactions of the said A. C. as such collecting clerk as aforesaid, nor did defendant promise as in the said count mentioned, until afte r plain tifis and A. C. had c omple tely mad e and c onclude d the said agre ement betwee n them above mentioned. V erification .^ * Special demurrer. J3ain, for the plaintiffs. The second plea does not confess and avoid, and amounts, at most, to an argumentative denial of the consideration. M-le, contra. The second plea is good : it supplies the fact, not dis- closed by the declaration, that the plaintiffs had agreed to employ Christie before they desired security from the defendant ; and their doing what they were already bound to do was no consideration for the defendant's promise. Stilk v. Meyrick;^ Jones v. Waite,^ judg- ments of Patteson, J.,* Lord Abinger, and Lord Denman, C. J.° [Lord Dexjiax, C. J. Your plea introduces a different agreement between the plaintiffs and defendant from that stated in the declaration. Ought that to be specially pleaded ?] The plea only avoids the contract de- clared on. It alleges that such a contract was in fact made, but the plaintiffs were bound already. [Patteson, J. You do not deny the promise, or the fact stated as the consideration, but contend that you 1 Only so much of the case is given as relates to the second plea. — Ed. 2 2 Camp 317; B. c. 6 Esp. N. P. C. 129. See England o. Davidson, 11 A & E. 856 3 o New Ca. 341. * Page 351. 5 Page 3.56. * Pages 358, 359. 48 SIBVEKING V. DUTTON. [CHAP. II. DOW find the agreemeut to have been nudum pactum / that, although the plaintiffs professed that they would employ Christie at the de- fendant's request, they did not do it on his request, being already bound.] JBain, in reply. LoED Denman, C. J. 1 am of opinion that the plaintiffs are entitled to judgment on the second plea. It sets up a different consideration fi-om that which the declaration alleges ; and the matter might bavo been given in evidence on non-assum psit. It is not a confession, but adds something to the statement in the declaration, which makes a different contract. Patteson, J. The second plea is a denial of the alleged considera tion, namely, that the plaintiffs, at the defendant's request, would employ Christie. It is now settled that the proper mode of traversing a consideration is by plea of non-nssinnpsit . It has been suggested that the plaintiffs might have previously engaged Christie, and yet that their promise to employ him in future might have been at the de- fendant's request. But, if it turns out on the pleading that they did not agree to employ Christie at the defendant's request, but had so agreed before it was made, that is a denial of his being employed at the request of the defendant. The consideration , therefore, i s denied; and the plea should have been non-assumpsit. Williams, J. The second plea turns only on a different mode of interpreting the contract from that adopted in the declaration. The plea should have been non-assumpsit, and the defence under it would have been variance. Judgment for plaintiffs on the second plea} SIEVEKING AND Akother v. DUT^N. In the Common Pleas, June 11, 1846. \Bjepo\-led in 3 Common Bench Reports, 331.] Assumpsit. The first count of the declarati on state d that the plain- tiffs, at the request of the defendant, agreed to supply the defendant, and the defendant ordered of the plaintiffs, divers large quantities of wool, to be purchased by him upon certain terms, that is to say, ) Sutherland v. Pratt, 11 M. & W. 296 ; Raikes v. Todd, 8 A. & E. 854 ; Wade v; Simeon, 2 C. B. 548; Breech ...White, 12 A. & E. 670; Weedon v Woodbridge 13 Q. B. 481, accord; Passenec v. Brookes, 1 B. N. C. 587, contra. — Ed. SECT. II.] SIBTEKINO V. DUTTON. 49 &c. ; that, in consideration thereof, and that the plaintiffs, at the like request of the defendant, then promised the defendant to delivei the said quantities of goods to the defendant, according to the said con- tract, the defend ant then promis ed the p lainti ffs to accept the said good s, and to ^y foi- the sam e accord ing to th_e t erm s of the said cflu- tract. Averment, that the plaintiffs had always been ready and willing, and afterwards, to wit, on, &c., tendered and offered to deliver the said goods to the defendant, according to the terms of the said contract, && Breach, that the defendant refused to accept them. Pi£3, that, at the time of the defendant's ordering the said quantities of wool, and making the said promise, as in the first count of the dec- laration alleged, the plaintiffs produced and show ed to the defendant ascertain sample o Xthe said woo l, and then promised the defendant to deliver the said quantities of wool to the defendant, and that the whole of the said quantities of wool were equal in quality and description to the said sample ; that the defendant then ordered the said quantities of wool, and made the said promise, as in the said first count men- tioned, on the faith and terms, and in consideration of the said promise of the plaintiffs, and not otherwise ; but that the said quantities of wool, at the time when they were so offered and tendered for delivery by the plaintiffs as in the said first count mentioned, were n^t equal in quality and description to the said sample , but, on the contrary thereof, the same were of a very inferior and bad and indifferent quality and description, and of much less value, and of no use or value to the de- fendant ; whereupon and wherefore the defen dant the n refus ed to a ccep t the said wool, or pay for the same ; as he lawfully might, &c. Veri- fication. To this plea the plaintiffs demurred specially, on the ground, amongst others, that it amounted to non-assumpsit. Dowling, Serjt., in support of the demurrer. The declaration alleges an absolute contract on the part of the defendant to receive the wool, without any condition as to quality, or any specific description. The plea alleges that the contract was for a sale of wool, with a warranty that the bulk was equal to sample : that introduces a qualification into the contract, and amounts to a mere denial of the contract declared on. Morgan v. Pebrer ; * Nash w. Breeze ; "^ Heath v. Durant.' Channell, Serjt., contra. Had this been pleaded to a count in iiv- debitatus assumpsit for goods sold and delivered, or goods bargained and sold, the plea would undoubtedly have been open to the objection suggested. But the difficulty here arises from the new rules, which provide that the plea of non-assumpsit shall operate only as a den' '1 I 3 N. C. 457 ; 4 Scott, 230. a 11 M & W. 352. ' 12 M. & W. 438 4 60 HATSELDEN V. STAFF. [CHAP. II. in fact of the express contract or promise alleged, or of the matter of fact from which the contract or promise alleged may be implied in law. This plea does not deny the express contract alleged iu the declaration ; on the contrary, it admits it ; and it seeks to justify the refusal to accept the wool, by showing that it differed in quality from that which the plaintiffs contracted to deliver. [Maule, J. The contract stated in the declaration is for the delivery of wool of a merchantable quality. TiNDAL, C. J. Upon non-assumpsit the plaintiffs would be non-suited, if they proved a contract other than that alleged. Ceesswell, J., re- ferred to Parker v. Palmer.^ Maule, J. If issue were taken on the tender, the plaintiffs would fail unless they proved a tender of wool of the quality and description ordered.] The plea, at all events, complies with the spirit of the new rules. [Mafle, J. The defendant should certainly be allowed to plead this defence, if it is iiot open to him under non-assumpsit.] Dowling, Serjt., in reply. The plea in question clearly amounts to no more than a denial of the contract alleged in the declaration. [TiNDAL, C. J. The contract set up by the plea is not necessarily in- compatible with that stated in the declaration.] It is difficult to see how the two could coexist. [Maule, J., referred to Street v. Biay.^] The court, after some deliberation, were about to pronounce judg- ment in favor of the plea, when Dowling, Serjt., prayed leave to with- draw the demurrer; which was granted, upon the usual terms. ysix -- — ■ 7 £Mle accordingly? '- 0---, -'■ ■ ■ - " - -■ i> r c '' > . In Excuse — (^continued'), (h) Genekal Assumpsit. HAYSELDEN v. STAFF. In the King's Bench, May- 27, 1836. [Reported in 5 Adolphus Sf Ellis, 153.] Indebitatus assumpsit for (among other considerations) the price and value o f wor k don e, and materials p rovi ded for the sam e ; promise to pay on request. Plea (among others) as to non-payment of £1 Os. 9^., parcel of the 1 4 B. & Aid. 387. 2 2 B. & Ad. 456. » See Parker v. Palmer, 4 B. & Al. 387 ; Sliarland v. Leifchild, 4 C. B. 529 ; We» don V. Woodbritlge, 13 Q. B. 462. —Ed. SECT. II.] HAYSELDBN V. STAFF. 51 above, that tlie said work and materials were work done and materiala provided for the same by the plaintiff for the defendant in and about ^ the endeavoring to prevent a certain chimney from smoking, and upon the terms, agreement, and understanding that the plaintiff should not be gaid for the said work and mate rials, or any part thereof, unless he should succee d in p reven ting the said c himn ey from _so smoki ng as ' aforesaid. Averment, that plaintiff hath not succeeded, &c. Verifi-^ cation . Demurrer, assigning for causes, that the plea amounts to the general issue, and is argumentative, and an evasive and indirect denial of the cause of action, and does not sufficiently traverse, or confess and avoid it. The case was now argued.^ Susiy, for the plaintiff. The plea, instead of confessing the con- tract, alleges matter to show that it never was made as alleged in the declaration ; it is therefore bad, and falls within the principle of the cases collected in Com. Dig. Pleader (E. 13), and (E. 14). It is true that not only matter in confession and avoidance may be specially pleaded, but also matter of law which may be given in evidence on the general issue. In Carr v. Hinchliff ^ the plea was upheld on both these principles. But the present case does not fall within either. The case is the stronger, because here the plea goes to a part only of the consideration ; and therefore the unnecessary prolixity, which is the fault against which the rule was intended to guard,^ is aggra- vated. Martin, contra. The plea is good, whether considered with refer- ence to the new rules, or independently of them. The declaration alleges a performance of work and supply of materials at the de- fendant's request ; and from the fact so alleged it seeks to raise a legal implication of a promise. The general issue would amount to a denial of that fact, and of nothing more ; * but that fact is here admitted ; the plea therefore suggests a defence which the general issue would not raise. It is assumed on the other side that a plea in confession and avoidance, to a declaration in indebitatus assumpsit, must confess the debt ; whereas it need only confess the fact alleged as the ground of implying the promise. That being confessed, a prima facie right in the plaintiff is admitted, which the defendant is to avoid by new matter. Thus, in the new rules of pleading, it is said ^ that, in indebi- 1 Before Lord Denman, C. J., Littledale, Patteson, and Williams, JJ. 2 4 B. & C. 547. 3 See Warner v. Wainsford, Hob. 127 (ed. 5) * Kule, H. 4 W. 4, Assumpsit, 1, 5 B. & Ad. vii. » 5 B. & Ad. vii.j viii. b2 HATSELDBN V. STAFF. [CHAP. H. tatiiS assumpsit for goods sold and delivered, non-assumpsit denies merely the sale and delivery in point of fact. Here the plea certainly shows that the contract was conditional ; but it lay upon the defend- ant to allege the condition and deny its performance, as he could not deny the substantive fact. [Littledale, J. Certainly the new rules so far treat a contract with a condition and without it, as the same thing, that they do not allow separate counts on each.^ The cases given in the new rules, under Assumpsit 3,^ show that the special j)lea need not confess the debt, but only the fact which prima facie raises a promise. Thus, coverture, illegality of consideration, unseaworthi- ness, misrepresentation, concealment, are all matters which show that the debt never arose ; yet they are to be specially pleaded, because they do not deny the fact alleged as the foundation of the debt. In Potts V. Sparrow,* it was held that an objection to an action of assump- sit for the costs of preparing an illegal agreement could not be taken on a plea of non-assumpsit, though it was m-ged that the new rules applied only where the illegality objected to was in the contract, the breach of which was the subject of the action itself. Edmunds v. Harris * goes much beyond the present case. [Lord Denman^, C. J. If that decision be correct, no doubt it is an authority in your favor ; but some of the other cases put by you are instances of facts dehors the contract, and where, but for such facts, there would be a good con- tract. Perhaps the rule as to goods sold and delivered is not expressed eo correctly as it might be.] Here that has been done for the defend- ant upon which, but for the matter alleged in the plea, the plaintiff would have an implied right to sue. [Patteson, J. It has been said that the " denial of the sale and delivery in point of fact " means, of the sale and delivery laid in the declaration ; that is, a sale and deliv- ery to be paid for on request ; and that, if it appear that the payment was to be on a future day, or upon condition, the sale and delivery alleged are negatived; and that therefore such a defence amounts to the general issue.J The plea here, correctly speaking, does not show that the plaintiff was to be paid only if a certain event occurred, but that his right was to be defeated in case of the non-occurrence of the event : that is not a traverse, but new matter. In Waddilove v. Bar- nett ^ the declaration was in assumpsit for use and occupation ; and it was held that the defendant could not, under the general issue, show that after the rent became due he had received notice from a party to whom the plaintiff had mortgaged the premises before the occupation commenced, and that he had paid such party accordingly. [Lord ' R. H. 4 W. 4, General Rules and Regulations, 5, 5 B. & Ad. ii. 2 5 B. & Ad. viii. » 1 New Ca. 594. 4 2 A. & E. 414 ; s. c. 4 N. & M. 182. S 2 New Ca. 538. SECT. II. J HAYSELDEN V. STAFF. 53 DmsTMAN, C. J. There the defence went to show that the islaintiff was not the real owner. J That could not have been the principle of the decision ; for such a principle would also apply to rem becoming due after the notice from the mortgagee ; whereas it was held that, as to this, the defence might be shown under non-assumpsit. The prin- ciple was that, as to the last-mentioned rent, the occupation by the sufferance and permission of the plaintiff, which was the fact raising the contract, was negatived by the evidence : as to the rent due before t he notice, such occupation was not negatived but admitted ; and therefore matter showing that, though the fact raising the contract was true, still the debt had not arisen, was held not to be admissible in proof under non-assumpsit. Then, independently of the new rules, this matter might be spe- cially pleaded. It is necessary only that a special plea of this kind should, as this does, give color to the plaintiff. Stephen on Pleading, 421 (ed. 3). Carr v. Hinchliff ^ shows this, and proves that a plea does not necessarily amount to the general issue, because the defence which it suggests might have been shown under the general issue. Bird v. Higginson ^ is to the same effect. \_J3usby. The court did not ex- pressly decide that point. Littledale, J. They gave judgment for the defendant, though the objection was assigned on special demurrer to the plea. In special actions on the case for disturbance, every one knows that the answer may be pleaded specially.] And that, whether it be by way of confession and avoidance, or by way of raising a ques- tion of law. [Littledale, J. It is said in Com. Dig. Pleader (E. 14) that this objection should be taken by motion, not by demurrer.^ That seems not to be considered law now.^] Cur. adv. vult. Lord Denmait, C. J., on a subsequent day of this term (June 13th), delivered the judgment of the court. After stating the declaration, the plea, and the demurrer, and causes assigned, his Lordship proceeded as follows : — It must be first considered, whether the defence set up in the plea could be given in evidence under the general issue of non-assumpsit; because, if it could not, then there is no ground for the demurier. There is no doubt but it might be so before the new rules, because not only might the fact of the actual contract itself be denied, but also it might be proved that it was void in law, or that the contract itself had been performed, or that the defendant was excused from the [jerformance of it by many other circumstances. But, since the new rules (and which have the force and effect of an 1 4 B. & C. 547. 2 2 A. & E. 696. 3 Citing Warner v. Wainsford, Hob. 127 (ed. 5), and Ward and Blunt's Case 1 Leon. 178. 1 See Stephen on Pleading, 421 (ed. 3). bi HATSELDEN V. STAFF. [CHAP. II. I act of Parliament) in actions of assumpsit, "the plea of non-assumpsit shall operat e only as a denial in fact of the express contract or promise alleged, or of the matters of fact from which the contract or promise alleged may be implied by law." In actions of assumpsit for goods sold and delivered, the plea ot non-assumpsit will operate as a denial of the sale and delivery in point of fact. And " in every species of assumpsit all matters in confession and avoidance, including not only those by way of discharge, but those which show the transaction to be either void or voidable in point of law, on the ground of fraud or otherwise, shall be specially pleaded." One of the general objects of these new rules was to compel a defendant to put his defence specially upon the record. And in con- formity with this object the case of Edmunds v. Harris ^ was decided. It was an action of debt for goods sold and delivered, to be paid for on request, and which as to this is the same thing as indebitatus assumpsit ; to which there was a plea of never indebted ; and it appeared on the trial that the goods were sold on a credit which had not expired when the action was brought ; and, on a question whether this defence was admissible on the general issue, the Court of King's Bench held it was not, and that it ought to have been specially pleaded, and that it was one of the cases which the new rules were framed to avoid. But that case was doubted in Taylor v. Hilary,^ on the ground that, if the time of credit has not expired, the plaintiff proves a differ- ent contract from that which he has stated in the declaration, which was to pay on request. And so also in Knapp v. Harden," Parke, B., considered it as doubtful whether Edmunds v. Harris ■" was properly decided. We think, therefore, that the case of Edmunds v. Harris ^ cannot be considered as a binding authority ; and, if not, as the de- fence set up on this record shows a different contract from that which is stated in the declaration, inasmuch as the contract stated in the plea is that the money should be paid on a certain condition which has not been performed, it is not a contract to pay upon request ; and therefore the defence might be gone into upon the general issue. And in the case of Waddilove v. Barnett * it was held, in an action for use and occupation, that, under the issue of non-assumpsit, the defendant might give in evidence that the" plaintiff had mortgaged the premises before the defendant came into the occupation, and that *he mortgagee had given notice to the defendant not to pay the plain- tiff any rent becoming due. after such notice. And this was deter- mined by the court after considering the effect of the new rules. 1 2 A. & E. 414; s. c. 4 N. & M. 182. 2 1 Cr., M. & K. 741 ; s. c. 5 Tyrwh. 873. 3 1 Gale, 47. See also Jones v. Nanney, 1 M & W. 388. < 2 New Ca. 53S. SECT. II.] HATSELDEN V. STAFF. 55 But, though the defence might be gone into under the general issue, it does not necessarily follow that the defence may not be specially pleaded on the record. In the case of Carr v. Hinchliff* a defence was put upon the record, which, it was admitted, might have been gone into upon the general issue, and yet allowed to be a good plea. It was an action for goods f5old and delivered ; and the plea was that the- goods were sold by a third person as the agent of the plaintiff, with the proper averments of want of knowledge, &c. ; and then the defendant set off a debt due from that third person. The question was much considered in that case ; but there was, in the first instance, a complete contract admitted by the plea o? the prima facie liability of the defendant to the action, because, independently of the set-off, the defendant would have been liable; there was therefore a confession of the contract stated by the plaintiff; but the plea stated matters which avoided it so far as to ex- onerate the defendant from the performance of it. There is a great distinction between the case of a plea which amounts to the general issue, and a plea which discloses matter which may be given in evidence under the general issue. Under the latter, as has been observed in the earlier part of this judgment, the various things enumerated may be given in evidence under the general issue, inde- pendently of any of the new rules ; but it is incorrect language to say that these things amount to the general issue : they only defeat the contract ; but what, in correct language, may be said to amount to the general issue is, that, for some reason specially stated, the contract does not exist in the form in which it is alleged, and, where that is the case, it is an argumentative denial of the contract, instead of being a direct denial ; and which, according to the correct rule of pleading, is not allowed. The allegation in the declaration is that the defendant is indebted for work, and labor, and materials ; and that, being so indebted, he promised to pay on request. The plea does not confess that the de- fendant was indebted at all ; it a dmits that work was done , and ma- terials were found and provided : but, i nstead of confessing that any debt was created by that, an d showing any thing to avoid it, he says tliat no money was to be paid unless the chimney was cured of smok- ;r.rr ^ x,hinh was Tint done I and which is really saying, in the most dis- tinct terms, that no debt ever arose, and therefore falls completely within the meaning of what may be termed an argumentative denial of the debt. In Solly V. Neish^ the declaration was for money had and received. The defendant pleaded that the money was the proceeds of goods « 4 B. & C. 547. 2 2 C, M. & R. 855; b. c. 5 Tyrwh. 625 ; 1 Gale, 227. 56 EARL OF MANCHESTEB V. VALE. [CHAP. II. pledged to the defendant, with a power of sale, b> persons who were allowed by the plaintiffs to hold the goods as their own, and which, in fact, were the property of those persons and the plaintiffs, and that the defendant was willing to set off against the proceeds of the goods the advances made on them. There were subsequent pleadings which led to a demurrer. The court, though they gave judgment for the de- fendant, said the plea would be bad on a special demurrer. In Gard- ner u. Alexander the declaration was for goods bargained and sold ; the defence was that they were sold under a special contract that they should be shipped within the current month and landed in London within a given time, which was not done. On an application to plead several matters, the question was, whether these facts could have been given in evidence under the general issue, or whether it was necessary to plead them specially. The Court of Common Pleas said it was unnecessary to plead them ; the special contract might be given in evidence under the general issue. And in Cousins v. Paddon,^ in the Exchequer, Michaelmas term, 1835, it was held that, in debt for goods sold and delivered, and work and labor, the defendant may give in evidence, on the general issue of never indebted, that the goods were worthless and the work useless. Upon the whole, therefore, we are of opinion that the plea now be- fore us cannot be supported, and that there must be judgment for the plaintiff. Judgment for the plaintiff.^ In Excuse — (^continued) (c) Trespass. r^£^,,Jx^ J ^^'' EARL OF MANCHESTER and Others v. Vale. Ik the King's Bench, Michaelmas Tbkm, 1666. [Reported in 1 Saunders, 27.] Trespass. The p laintiffs d eclare that the defendants, on the 29tii of September, in the seventeenth year of the reign of the now king, 1 2 C'., M. & R. 547; s. c. 5 Tyrwh. 535. 2 Goods bakgained and sold, — Goods sold and dehveeed : Payne v. Hales, 5 M. & W. 598; Dicken v. Neale, 1 M. & W. 556; Dawson v. CoUis, 10 C. B. 523. "Work and labor : Jones v. Nanney, 1 M. & W. 333 ; Hill v. Allen, 2 M. & W. 283 ; Cleworth v. Pickfbrd, 7 M. & W. 314. Monet paid : Worrall v. Grayson, 1 M. & W. 166 ; Gregory v. HartnoU, 1 M. & W. 183 ; Morgan v. Pebrer, 3 B. N. C. 457 ; Maude V. Meesham, 6 Dowl. 570. Monet had and received : Owen v. Ghallis, 6 0. B. 115; Solly v. Neish, 2 0., M. & R. 355; Coupland v. Ghallis, 2 Ex. 682 ; "Williams n. Vines, 6 Q. B. 355. Account stated : Jacobs v. Fisher, 1 C. B. 178, accord. — Eu. SECT. II.] EARL OF MANCHESTER V. VALE. 57 broke the close of the plaintiffs, called Marking and Yonder Moore, in the parish of Westmarke, in the county of Somerset, and the grass there with feet in walking trod down, and other the grass there with cattle, to wit, horses, oxen, cows, swine, and sheep, eat up, with a C09v- tinuando, &c. The defend ant ^ to tl^^ f orce and syjns, and the tres- i, pass with swine, tjleads not yruilty. and to the residue of the trespass. ' he .pleads in ba r, that Sir Thomas Bridges, knight, v^as seised of the ^ insmor of Wedmore with the appurtenances in the said county, in his demesne as of fee, and prescribes in the said Sir Thomas for common in the place where, &c., for all his commonable cattle levant and couch- ant upon the said manor at every time of the year, as appurtenant to the said manor. And further says, that the smd Si_r Thomas constituted and appointed the ^^fendant to take care of his cattle put into the said close which, &c. And he further says, that the said Sir Thomas caused to be put divers commonable cattle of the said Sir Thomas Bridges which at the time when, &c., were in the said place where, &c. Whereupon the defendant, as servant to the said Sir Thomas Bridges at the time when, &c., enter ed into the said ol^se in which, &c., to see the said cattle there, lest a ny damage should happen to^them ; and in entering he trod down the grass there, which is the same residue of the trespass, and this, &c. Wherefore, &c., upon which the plaintiffs .emurre^i^^^. And i^, was objected on the part of the plaintiffs, that t he defendant in his bar hath only said that the cattle were in the place where , &c., but not that he nut them there. And it appears that the cattle were not the defendant's own cattle, and therefore, if he did not put them into the place where, &c., he is not guilty: for a man cannot be guilty of trespass with cattle, unless they are his own cattle, or he actually put them into the place where, &c. And here t he defendant has justi- fied the trespass with cattle , and ^^ ha^jjgtconfessedjt^ nor said any tTTing to such purpose. Then the plea being bad in part, is bad for the whole , although he has justified some part well ; for an entire plea cannot be good in part, and bad in another part ; because such an entire plea is not divisible. Pendlebury and Elmott ; ^ Kent and Spen- der ; ■■' Ascue v. Sanderson ; ' Sir John Thornel v. Lassels.* And of such opinion was all the court. And judgment was given for the plaintiff. /Saunders, of counsel with plaintiff. Note. — There was another fault in the plea, because it was not averred that the cattle were levant and couchant ; but this was not moved. 1 Cro. Eliz. 268. '■^ Cio. Eliz. 331 » Cro. Eliz. 434 « Cro. Jac. 27. t 58 ^ MONTGOMERY V. RICHARDSON. [CHAP. II. GIBBONS V. PEPPER. Is- THE King's Bench, Eastee Term, 1695. [Reported in 1 Lord Raymond, 387.] Teespass, aaaanlt,, and hatt.p.ry . The defendant plead s that he rode upo^ahorse in the king's highway, and that his horse being affiighted i ran away with him, so that he could not stop the horse ; that there ( were several persons standing in the way, among whom the plaintiff , stood; and that he called to them to take care, but that, notwithstand- ^ ing, the plaintiff did not go out of the way, but continued there; so that the defendant's horse ran over the plaintiff against the will of the defendant; quae est eadem transgressio, &c. The plaint iff demu rred. And Darnall, Serjt., for the defendant, argued, that if the defendan t in his justification shows tha t the accident was j ag^aMa; an '^ that the ne gligence of the defendant did not c^use it, judgment shall be given for him. To prove which he cited Weaver v. Ward ; ^ Mo. 864, pi. 1192; 2 Roll. Abr. 548; 1 Brownl. Prec. 188. Nbrthey, for the plaintifij said, that in all these cases the defendant confessed a battery, which he afterwards justified ; but in this case he justified a battery , which is no battery. ' Of which opinion was the whole court ; for if I ride upon a horse, and J. S. whips the horse, so that he runs away with me and runs over any other person, he who whipped the horse is guilty of the battery, and not me. But if I by spurring was the cause of such accident, then I am guilty. In the same manner, if A. takes the hand of B. and with it strikes C, A. is the trespasser, and not B. And, per Guriam, the defendant might have given this justification in evidence, upon the general issue p leaded. And therefore judgment was given for the plaintiff.^ MONTGOMERY v. RICHARDSON and Othees. At Nisi Peiits, coeam Loed Tenteedbn, C. J., June 22, 1832. [Reported in 5 Carrington ^ Payne, 247.] * False imprisonm ent. Pleas : the general isane ; and several special pleas, which were holden bad on demurrer. Wyborn, for the plaintiff, proposed to read one of the special pleas which stated the fact of the suing out of the writ by one of the defend. 1 Hob. 344. 2 Christopherson v. Bare, 11 Q. B. 473, accord. — Ed. SECT. II.] WISE V. HODSOLL. 59 ants. He contended that he was entitled to have the special pleas read, as the jury were to assess the damages upon them as well as give a verdict on the general issue. Lord Tenteeden, C. J. Taking this as a general question, it would be contrary to all the practice in my experience, and I believe in that of every gentleman at the bar, to hold that the statements in a special plea may be evidence under the general issue. Then, as to the par- ticular reason given, Mr. Wyborn contends, that, b ecause the .jur y are to_assess_the_j[amageson^_the_j£^^ t herefore_h e^ is_enlitled to read that plea. I am clearly of opinion that he is not, because there_ can be no damages on the special plea until the plaintiff has proved bis case on the general issue. Now, this he has not done, as he has not proved that the defendant sued out the writ. Nonsuit. Wyborn, for the plaintiff. Hutchinson, for the defendant. In the ensuing term, Wyborn applied to the court to set aside the nonsuit ; but the court refused a rule.* > , / - ^ £L^:.Jlh^ r(^ ^-t t c - ^' ^^ jXa,iT/:4WISE«. HODSOLL. ^ \ In the King's Bench, Apeil 28, 1840. > ,, • r^'C [Reported in 11 Adolphus i- Ellis, 81Q.\ . i^ ^ dO ^^i, Teespass for assaulting and beating plaintiff. ^.o_C->^ -oj- cJd.-^ §gggijcl plea. And for a further plea in this behalf the defendant says that, just before the said time when, &c., to wit, on the day and i year in the declaration mentioned, the plaintiff with force and arms assaulted him the defend ant, and would then have beat, bruised, and ill treated him, if he had not immediately defended himself against the plaintiff; wh erefor e he the defendant did t hen de fend h imsel f against the plaint iff as he the defendant lawfully might for the cause aforesaid ; and the defendant further says that, if any hurt Qr damage then happened or was occasioned to^the plaintiff, the^ame happened and was occasioned by the said assault ofTTm the plaintiff upon him the 1 Harrington v. Macmorris, 5 Taunt. 228 ; Firmin v. Crucifix, 5 C. & P. 98 ; Wright V. Lindsay, 20 Ala. 428 ; Wheeler v. Robb, 1 Blackf. 330 ; Arnold v. Sturges, 5 Bhickf. 256 ; Rioket v. Stanley, 6 Blackf. 169 ; Graah v. Sater, 6 Iowa, 301 ; Nye v. Spencer, 41 Me. 272 ; Doss u. Jones, 6 Miss. 158 ; Cilley v. Jenness, 2 N. H. 8S {semble) ; Whitaker v. Freeman, 1 Dev. 271, accord; Jackson ;;. Stetson, 15 Mass. 48 Alderman v. French, 1 Pick. 1, contra. Conf. MattheTt » ?«ach, 4 Seld. 173 ; Hix v Drury, 5 Pick. 303. — Ed. \ 60 WISE V. HODSOLL. [CHAP. II. defendant, find in the necessary defence of himself the defendant against the plaintiff. And this, &c. Verification. Demurrer, assigning for causes that the plea does not sufficiently confess and admit the assaulting and beating of plaintiff by defendan t in manner and form as alleged in the declaration ; that the plea co n- t ains no confession of any assault or battery o f plaintiff by defendant ; that the allegation in the plea, that defendant did at the same time when, &c., defend himself against plaintiff, is no confession of any assault or beating of plaintiff by defendant, nor is it to be implied that such alleged defending, &c., was an active and not a passive defence ; that the plea should have admitted that the said alleged defence of himself by defendant consisted of and was the alleged assault and beating in the declaration mentioned ; and that it is alleged in the plea that, if any hurt or damage then happened or was occasioned to plaintiff, the same happened or was occasioned by the said assault of plaintiff upon defendant, and in the necessary defence, &c., which is an evasive and insufficient confession of any hurt or damage having been occasioned to the plaintiff by the said assault and beating. Joinder in demurrer. Miller, for the plaintiff. This plea fails in the same manner as that which was held bad in The Earl of Manchester v. Vale; it attempts to f justify, but does not confess, and therefore amounts to the ^general issue. " The time when," &c., there, was not considered as implying an admission. [Coleeidge J. The plea there was very different.] This plea does not show that the defendant used any active means of defence. The averment, that, if any damage happened to plaintiff the same happened by plaintiff's assault on defendant, might mean that the plaintiff hurt himself in assaulting the defendant ; and the hypothetical admission, " if any," &c., was held insufficient in Gould v. Lasbury and Margetts v. Bays.'' [Loed Denman, C, J. Here the words are, " if any hurt or damage happened to the plaintiff," not, " if the defendant assaulted the plaintiff." Littledale, J. In Lowe v. King'^ and Greene v. Jones' this form was used, and no objection taken, though the declaration was demurred to in each case.] In the^ first of those cases the commencement of the plea of son assault de- mesne stated it to be pleaded " as to the assaulting, beating," &c. ; and in the latter case the commencement was to the same effect. [Pat- TBSON, J. The commencement of this plea, " and for a further plea in this behalf," * &o., refers to the whole declaration.] Piatt, contra, was stopped by the court. 1 4 A. & E. 489. 2 1 Saund. 76. » 1 Saund. 295 c. * The first plea (not stated in the paper book) was not guilty. SECT. II.J DORRINGTON V. CARTER. 61 LoED Denman C. J. We think the assault and battery are suf - ficiently confessed . ^— — — — ^— ^.— — _ LiTTLKDALE, PaTTESOST, and COLEEIDGB, JJ., coucuiTed. Judgment /or defendant} .C\'^^ In Excuse — (continued^ (d) Troyek. .^^e^ \ =-• '^'^rw' DORRINGTON v. CARTER. V, -^Ji:±sJL — -f - — In the Exchbqube, Michaelmas Teem, 1847. ^^(^^in^ ofe [Reported in 1 Exchequer Reports, 566.] .^A)a.^>_>^ , ,»_A^^-M. Teoyee for certain goods and chattels. Plea, that heretofore and before the said time when, &c., and whilst he the plaintiff was possessed ' of the said goods and chattels in the declaration mentioned, to wit, on the day and year in the declaration mentioned, a large sum of mone y, . to wit, the sura of £10 3s., was du e and owing from the plaintiff to theV defendant for certain board and lodging theretofore supplied by the defendant to the plaintiff, and at his request, and for the carriage and conveyance of certain timber and goods theretofore carried and con-'^ veyed in divers carts and carriages by the defendant for the plaintiff,/i and at his request, and for certain goods and chattels theretofore sold()i and delivered by the defendant to the plaintiff, and at his request ; and i n consideration thereof^ th e plaint iff, being so possessed of the said goods and chattels in the) declaration mentioned as aforesaid, then de- posited the same with tjie defendant as a security for the payment by ' the plaintiff to the defendant for the said money so due and owing as t aforesaid, and upon the terms and agreement, amongst others, that the defendant should hold and detain the same until that money had been " paid by th^ plaintiff to the defendant. And the defendant further, says, that the s aid debt has not been paid by the plaintiff to the de- ; fendant, nor hath the plaintiff tendered to the defendant, or offered ^ to pay him the said amount of the said debt, but the said debt is^ still due, and unpaid and unsatisfied; wherefore the defendant hath continually held and detained, and still holds and detains, the said ' goods and chattels, for the cause in this plea aforesaid, and at the said time when, &c., did refuse to deliver up the same to the plain- 1 In the course of the argument Piatt referred to the precedents in Winch'*, Coke's, and Lily's Entries. See Winch, 1121 ; Co. Ent. 644 ; Lil. Ent. 457. 62 DORRINGTON V. CAKTER. [CHAP. II. tiff ou being then required by him so to do, as the defendant law- fully might, being the said conversion in the declaration mentioned. Verification. Special demurrer, assigning for causes, that the plea is an argumen - tative denial that the plaintiff was law fully possessed of the said good s as ot his own p roperty, and that it ougbt to have concluded to the country, and not with a veri£cation, and that it does not confess any conversion, and amounts to the general issue. Joinder in demurrer. J. Brown, in support of the demurrer. The plea is bad, as amount- ing to an argumentative denial of the plaintiff's right of possession at the time of the conversion. It is also bad as amounting to the general issue, as it does not contain any admission of an actual conversion . The plea is in substance this, — that the goods were deposited with the defendant, to be retained by him until payment of a certain debt due from the plaintiff to him, and that the debt had not been paid when the defendant refused to deliver them up, as he was justified in doing; in other words, it is a plea of lien. "Now the action of trover only lies where the plaintiff has the right to possession as well as the legal property in the suit. That was established by the case of Gordon v. Harper," ' as Tindal, C. J., said in the case of Owen v. Knight. The latter of these cases is very like the present. It was an action of trover, and the Court of Common Pleas held that the defendant was entitled to give in evidence facts of a similar nature to the present, under a plea that the plaintiff was not possessed as of his own property of the goods in the declaration mentioned. This case was recognized by the Court of Queen's Bench in that of White v. Teal, where Lord Denman says, " He (the defendant) ought to have traversed that the plaintiff was possessed as of his own property , in manner and form as alleged in the declaration, and then he would have put in issue the plaintiff's right of possession, a s was holden in Owen y. Knight, and would have been entitled to prove the lien in order to negative that issue." These authorities were recognized by this court in Mason v. Farnell.'' Alderson, B., there says, in delivering the judgment of the court, " No doubt plausible reasons may be assigned for saying that the proper plea on which such a defence as a lien or the like may be made is the plea of not guiltv , by which the conversion is denied. " Isaac V. Belcher ° decided that the plea of not possessed puts in issue the right of the plaintiff's possession at the time of the conversion. In the second place, Acraman v. Cooper * is expressly in point, that this plea does not sufiiciently confess a conversion. A refusal to give up 1 7 T. E. 9. 2 12 M. & W. 674. 3 5 M. & W. 139. < 10 M. & W. 586. SKCT. II.J YOUNG V. COOPER. 63 the goods on the ground of a lien does not amount to a conversion. A demand and refusal are only evidence of it ; and it is improper to plead mere matter of evidence. He was then stopped by the court. Ring, contra, contended that the matter set up in the plea, being a license to retain the goods upon the terms of a special agreement, might be specially pleaded, as it gave the plaintiff the advantage of knowing what the precise defence was which the defendant intended to rely upon at the trial. Per Curiam,} We are all of opinion that the plea is bad, aa amounting to an argumentative denial of the plaintiff's right of pos- session of the goods in question at the time of the conversion. The plea sets up a lieu . That is inconsiste nt with the plaintiff's lawful possession, as was held in the case of Owen v. Knight, in the Court of Common Pleas, with which decision we entirely concur. The argu- ment, therefore, being well founded upon that point which is raised by the special demurrer, that it is an argumentative denial of the plaintiff's lawful possession at the time of the conversion, it is not necessary to give any opinion upon the other point. There must therefore be judgment for the plaintiff. Judgment for the plaintiff !' YOUNG V. COOPER. In the Exchequek, Febeuakt 14, 1851. \Iieported in 6 Exchequer Reports, 259.] Teovee by the plaintiffs, as assignees of one T. Robinson, a bank- rupt, for the conversion of certain goods and chattels of which Rob- inson was possessed before his bankruptcy. Elea {ititer alia), that I Robinson, before he became bankrupt, was indeb ted to the defendant"' i n £400 ; that the defenda nt recovered judgmen t in an action brought ' against him in this court for the sum of £400, with £8 10s. costs, upon which the defendant issued execution ; and that, before the bank- ruptcy, the sifiiaff; at the request of the defendant, for the purpose of/ executing the writ of execution, seized and took in executio n the'^ goods in the declaration mentionedj_and, before the bankruptcy, sold ' the said goods, for the purpose of satisfying, &c., for a certain sum, ^ which was paid over to the defendant in part satisfaction, &o.; which said seizure and sale of the said goods and chattels is tho con- version in the declaration mentioned. Verificatio n. » Parke, B., Alderson, B., Eolfe, B., and Piatt, B. ^ See Jackson v. Cummins, 5 M. & W. 349.— Ed. 64 YOUNG V. COOPER. [CHAP. 11. Special demurrer, on the grounds that the plea was an argumenta- tive denial of the causes of action in the declaration, and amounted to an argumentative denial of the conversion, and therefore to not guilty; that it was ambiguous, for that if it was to be taken as sufficiently con- fessing a conversion, it did not and could not justify it, as every conversion is a wrongful act and cannot be justified ; and if it did not confess a wrongful conversion, it was bad for not admitting the cause of action. Joinder in demurrer. Hugh mil, in support of the demurrer. The plea is bad, for tho reasons assigned on special demurrer. There can be no doubt that, according to the old authorities, the plea would have been bad before the New Rules. Thus it is laid down in Bac. Abr. Trover (F. 2) : "The defendant in an action of trover cannot justify, because the con- version must be confessed by a plea of justification; but the conversion is the tortious act, and therefore cannot be justified." So, in Com. Dig. Action upon the Case upon Trover (G. 6) : " In trover, the defendant can plead nothing but not guilty or a release." The same law is to be found in the following cases : Agar v. Lisle,^ Ascue v. Sanderson,^ and Hartford v. Jones.' These authorities sufiiciently show the law upon this subject before the New Rules of Hilary term, 4 Will. IV. Now these rules have not altered the efiect of the plea o f not guilty. It now operates as a denial of the conversion . But the mere fact Of a seizure and sale of goods is not per se a conversion. The act must be tortious ; as, for instance, a mere refusal to deliver up goods is not necessarily a conversion, though it may be evidence of it. The plea , therefore , operates as a denial of the wrongful ac t. There is no doubt that, shortly after the introduction of those rules, the courts were of opinion that the mere fact of the conversion was in issue under not guilty. Upon this ground Stanclifie v. Hard wick ^ was decided ; and was followed by Vernon v. Shipton ^ and Weeding v. Aldrich,^ although Littledale, J., in the latter case, entertained douUts upon the question. But, from the more recent authorities, it is now clear that the legality of the act is put in issue by the plea. In Whit- more V. Green,' Parke, B., says, " We came to an erroneous conclusion in the case of Stancliife v. Hardwick, that the New Rules have made any difference as to the meaning of a conversion;" and Alderson, B., says : " Not guilty and not possessed together make up the old not guilty; and whatever might be given in evidence under not guilty 1 Hob. 187. 2 cro. Eliz. 433. 8 1 Ld. Raym. 393. < 2 C, M. & R 1. 5 2 M. & W. 9. 6 9 A. & E 861. 1 13 M. & W. 107. SECT. 11.] YOUNG V. COOPER. 65 before the New Rules, may be proved tinder one or tne other of them." [Paeke, B. My brother Maule, in his argument in Tripp v. Ai-mitage,^ convinced me that we had come to an erroneous conclu- sion in Stancliife v. Hardwick.J Kynaston v. Crouch ^ is to the same effect; and the observations of Coltman, J., and Williams, J., in May- hew V. Herrick,* are of a similar character. If this plea be taken to be a plea in confession and avoidance, it does not confess any cause of action. Crompton, contra. The defendant could not safely rely upon the plea of not guilty alone, for he might be unable to give his present defence in evidence under it. There is no doubt that formerly this defence might well have been pleaded specially ; and a fortiori, since the New Rules, the defendant is entitled so to plead it. There is no distinction between the action of trover and any other action on the case ; and the rule which is to govern the same class of actions ought to be uniform. In an action for the diversion of a watercourse, the plea operates only as a denial of the diversion. [Paeke, B. This plea in truth amounts to an argumentative denial of the conversion. By the New Rules, " In actions on the case, the plea of not guilty shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant." In the case of the diver- sion of a watercourse, the diversion only is denied by the plea. Then the rule goes on to exemplify the distinction between that action and the action of trover : " In an action on the case for ob- structing a right of way, such plea will operate as a denial of the obstruction only, and not of the plaintiff's right of way ; and in an action for converting the plaintiff's goods, the conversion only, and not the plaintiff's title to the goods." Then the simple question is, whether by the conversion is meant a conversion in point of fact, or a wrongful conversion. In Stancliffe v. Hardwick, we held that a conversion in fact was put in issue by the plea ; but we have since come to the conclusion that our opinion in that case was erroneous. A cfiiuifiEsion, ex vi termini, mEaas i ai^-wrongful eguvidimm . ] In Samuel v. Duke,^ which was an action of trover against the sheriff, to which the defendant pleaded not guilty and not possessed, Parke, B., said, " If the conversion had been the sale of the goods, then the sheriff must have previously seized ; and probably it would have been competent to him, under the denial of the plaintiff's right of posses- sion, to show that, at the time of the sale of the goods, the plaintiff had no possessory right, but that the sheriff had the right to seize them. But the case is different if the conversion complained of be 1 4 M. & W. 687. 2 14 M. & W. 266. 3 7 C. B. 229. 4 3 M. & W. 622. 66 CLEMENTS V. PLIGHT. [CHAP. II. the act of seizure. I entertain a strong opinion that, under these pleadings, it was not competent to the sheriff to enter into this de- fence at all." That would seem a strong authority in the defend- in t's favor. Paekb, B. I think that the plea is bad. We must abide by our amended view of the law, which we adopted since the case of Stan- cliffe V. Hardwick. We have, since that decision, come to the conclu- sion that the term " c onver sion," used in the rule in question, means a wrongful conversi on. The rule says that the plea of not guilty sh^l o pera te _as a_denial of the c onver sion o nly, and "n^ of_the p laint iff's title. It then goes'^n to direct that all matters i n confession and avoidan ce shall be specially pleaded , i.e., such matters as can be prop- erly pleaded as such. But, according to the preceding view of this rule, the present plea doe s not set up such a defence. The plea therefore cannot be supported, and the plaintiffs are entitled to judgment. Aldbeson, B., Platt, B., and Maetin, B., concurred. Judgment for the plaintiffs ' In Uxouse — (^continued). (e) Detinue. CLEMENTS v. FLIGHT. l^lty^o CM^ Ik the Exchbqtjee, Novembbe 18, 1846. [Seported in 8 Law Times, 166.2] This was an action of detinu e brought against the defendant for the recovery of certam papers and scrip certificates which, it appeared, had been left with the defendant by way of security or pledge for money advanced ; the defend ant had pleaded to the action a^ ple_a of tender , and the p laint iff had s peciallv dernTirre d to that plea, because it was an argumentative g^jjj) of non detinet ; th at it was double; and, also, that it was in bar to the damages only. jJUa ai^^^-^JJi IL»^»^ p^ Lush, in support of the demurrer. The detention complained of is ^ J Wilkinson u. Whalley, 5 M. & G. 590; Whitmore v. Greene, 13 M. & W. 104; Kynaston v Crouch, 14 M. & "W. 266 ; Higgins v. Thomas, 8 Q. B. 908 ; Ringham V. Clements, 12 Q. B. 260; Mayhew v. Herriok, 7 C. B. 229, accord; Stancliffe o. Hardwick, 2 C, M. & R. 1 ; Vernon v. Shipton, 2 M. & W. 9 ; Weeding v. AldrioK 9 A. & E. 861, contra. — Ed. 2 s. c. 16 M. & W. 4a — Ed. SECT. II. J CLEMENTS V. FLIGHT. 67 as it should be at the time when the writ was issued, but the plea in the present case only shows that they were held before, and does not confess what is charged in the declaration ; detinue may, in that case, be brought after a redelivery. He was not aware of any plea of this description in detinue. [Paekb, B. Yes. You will find one in Brown's Entries, 129, and in Brooke's Abridgment also, pi. 28.] There was no averment here of readiness and willingness. Hoggins, contra {Patterson with him). This plea is good. The question is, is it a bailment, or is it a taking? We say the goods came into our hands as a pledge ; when you discharge that you shall have them. And, if it be discharged, the plaintifi" should make a de- mand ; he is not bound to say he was always ready and willing to de- liver. Giles V. Hart.^ The defendant has to cover, by his plea, the whole time whilst the goods were in his possession, and he does so ac- cordingly, by saying, as to the first part of the time, it was there as and by way of a pledge, and as to the remaining portion, that he ten- dered the documents in question to the defendant, but he refused to receive them ; the plaintifi''s duty is not always to be ready and will- ing after a tender, and there is no obligation on his part, after receiving the money and tendering the articles, to go further. Whitehead v. Harrison.^ [The court said it all turns upon the word " detain ; " it is an excuse for not detaining.] Lush, in reply. It imports something further ; it is a withholding as well as a detaining ; and referred to Fitzherbert, N. B. 1 98 ; Isaac v. Clarke ; ^ Dirks v. Richards.* It amounts to the general issue of non detinet. The court, after taking time to consider, now (November 21) de- livered their judgment. Pollock, C. B. The case of Clements v. Flight, argued by Mr. ImsK on one side, and Mr. Hoggins on the other, a few days ago, was an action on a bailment. The declaration disclosed a special bailment, with an averment that the defendant was, after the repayment of a certain sum of money, to redeliver the goods on request. It was averred the money was repaid, the request was made, and the goods were not redelivered. The second plea introduced a different bail- ment, namely, a bailment not of all the goods for the entire sum, but as to a part of the goods it referred the bailment to a part of the sum, and then it averred that part of the sum was repaid, and that tliere was a tender to redeliver the goods, which the plaintiff declined to accept. To this there was a special demurrer. The first ground of special demurrer, which is the only one which we have noticed in the 1 2 Salkeld, 622 ; Bacon's Abridgment, title Tender, letter P ; Story on Bail ments, 229, §§ 339 and 76. 2 6 Q. B. 428. 3 2 Bulstrode, 307. * 1 Car. & Mars. 626. 68 CLEMENTS V. PLIGHT. [CHAP. II. judgment of the court, is that the plea amounted to an argumentative denial of the detention. The princii3al point argued in this case was, whether the plea amounted to and was an argumentative plea of non detinet, that being the first cause of special demurrer assigned. The court inti- mated its opinion that this question turned on the meaning of the word "detain" in the declaration in detinue. If its meaning be tliat the de- fendant has the goods in his possession, the plea admits the detention. If it mean that the defendant has omitted to deliver, in the sense of taking the goods to the plaintiff and giving them up to him, the plea admits the detention, and excuses it. If it mea n t hat the defendant with holds the fy9ods . a nd prevents the plaintiff f rnm ha.ving fhe pnsses- sion of them, the plea denies the detention argumentatively, and is bad. We are satisfied that the last is the true meaning of the word " detain." If it meant the mere keeping a possession, not adverse, how could such a possession form the ground of an action ? If it meant that the defendant had omitted, and still omitted, to be active in bringing the goods to the plaintiff, the action could not be maintained, without showing an obligation by contract to do so. We have no doubt, therefore, that the detention complained of is an adverse detention. And this is the meaning ascribed to the word in Bulstrode, 308 (cited by Mr. Lush), by Haughton, J., who says, that request and refusal, " contradixit et adhuc contr The demurrer being general, it was moved that this rejoinder was ^ not good ; for t he day and year of sfranting the copy is not material, but only whether it wer e granted before the copy made to the defend- ' ant ; and therefore he ought to have traversed absque hoc, that the queen granted modo et form,a prout, &c. But it was then moved, in regard it is but matter of form, and is not shown for cause, that it is aided by the statute of 18 Eliz. c. 14. Sed non allocatur ; for th e day ought not to be made material , u nless t he queen had granted by copy before the grant to the defendant : the traversing also of the day, where it ought not, is matter of sub- stance ; for thereby he makes it parcel of the issue, which should not be. Wherefore it was adjudged for the plaintiff. y GORAM V. SWEETIlsTG. _ In the King's Bench, Michaelmas Teem, 1670. -fc^ -^ [iJeporterf m 2 Saunders, 205.] AsstTMPSiT on a policy of assurance by Goram, plaintiff, against Sweeting, defendant. The plaintiff d eclar es that he had caused a policy of as suran ce to be written on the good ship called the "Margaret," of London, and on the tackle a£d appar el, &c., of the same ship, in which policy it was contained, that if any misfortune should happen to the ship in the voyage, it should be lawful for the plaintiff to sue and 1 Cockerill v. Armstrong, Willes, 103 ; Tatem v. Perient, Yelv. 195 ; Wood v. Budden, Hob. 119 ; Smith v. Dixon, 7 A. & E. 1 ; Sutton u. Page, 3 C. B. 204; Webb V. Rose, 4 H & N 111, accord. Conf. Reg. v. Dendy, 22 L. J. Q. B. 247.— Ed. 80 GORHAM V. SWEETING. [CHAP. MI. labor for the defence and safety of the ship, without any prejudice to the policy, and that the assurers, of whom the defendant was one, would contribute to the charges thereof according to the several sums respectively insured by them. And the plaintiff further shows that the defendant became an assurer on the said policy for £50, and in con- sideration of the plaintiff's promise to pay him at the rate of £3 12s. per cent for six months, undertook and promised to perform the said policy as to £50 so insured by him. And the plaintiff a^-s in fact that the ship, &c., "did not arrive in safety, but "that the said shjp, tackl e, a ppare l, ordn ance, muni tion, artill ery, boat, and other furnit ure were sunk and destr oyed in the said voyage," of which the plaintiff gave the defendant notice, and abandoned all his interest therein, yet the said defendant has not borne the adventure, nor paid the said £50, wherefore the plaintiff'brings this action. The defendant p lead s in b ar that the ship and all the apparel and tackle aforesaid arrived in good safety, and traverses without this, that " the said ship , tackle, a pjarel . o rdna nce, munit ion, artille ry , bo at, and othe r furni ture were s unk and de stroy ed in t he said voyage in manner and form as," «fcc., and this, &c., wherefore, &c., upon which plea the plaintiff demurs in law. And Jones, for the plaintiff, argued that the traverse in the defend- ant's plea was bad, because the defendant has traversed in the con- junctive, namely, without this that the said ship and tackle, &c., were sunk and destroyed, whereas it ought to be in the disjunctive, namely, without this that the said ship or tackle, &c., were sunk and de- stroyed. For, as he said, if in this case any of the things enumerated arrive in safety, as, for instance, if the ship arrive in safety, although all the goods and merchandises, and all the apparel and tackle of the ship, for which by the policy a satisfaction ought to be made to the plaintifl^ are lost, yet if issue had been taken on the defendant's traverse as it now is, it would be found against the plaintiff; and this action being only for damages according to the loss which the plaintiff has sustained, every part ought to be put in issue . For perhaps the ship arrived in safety, and yet the other things, as guns and anchors, and all the goods and merchandises, are lost, which ought to be put in issue by themselves ; so that the plaintiff may have a verdict for the loss of them, and his damages assessed according to the proportion of them, and the defendant may be acquitted of the residue. But now, unless the plaintiff prove that the ship and all the other things are lost, he shall not recover for any part. And if the defendant prove that only a cable or anchor arrived in safety, he would be acquitted of the whole, if the plaintiff had taken issue on this traverse. Wherefore he concliided that the traverse was bad, and prayed judgment for the plaintiff. SECT. I.] SIR RALPH BOVY'S CASE. 51 Coleman and Saunders, for the defendant, argued that the traverse was good. For in the policy there are two clauses : one, if the ship, or tackle and apparel, are damnified, the plaintiff may labor to save them, and the defendant is to pay his proportion of the charges of it ; and the other, that if the ship, &c., shall be totally lost, then the de- fendant is to pay £50. And here the plaintiff avers a total loss of the ship and goods, &c., wherefore he demands the £50. And the plaintiff has averred in the copulative, "that the said ship, tackle, apparel, ordnance, munition, artillery, and other furniture " were totally lost, whereby he has given an advantage to the defendant to traverse it precisely as the plaintiff has alleged it ; as in the case of Tatem v. Perient,^ where the plaintiff had alleged more than he needed in his declaration, and thereby gave an advantage to the other side to trav- erse it. So in Sir Francis Leke's Case. And although this action is only to recover damages, and no penalty, yet the plaintiff ought not to recover damages on this breach, but ought to have recovered dama^ ges for not contributing to the charges, &c., and if he so had done, then the loss or spoliation of each particular thing ought to have been put in issue ; for the damages were to be recovered particularly for every thing according to the proportion of the thing lost or spoiled, and of the defendant's assurance. But here the plaintiff would re- cover the entire £50, although there is only an anchor or cable lost; but in such case the defendant ought to come to an average only. But notwithstanding this, it was adjudged for the plaintiff, because, as Twysden declared, it was only an action for damages, and the de- pendant might aid himself on the writ of inquiry; and if he had traversed in the disjunctive, and issue had been joined upon it, the defendant might give in evidence any such matter in mitigation of damages. And as it seemed to me, he did not comprehend the differ- hice urged by the defendant, but without any great consideration a ^t of inquiry was awarded.^ SIR RALPH BOVY'S CASE. In the King's Bench, Teinitt Teem, 1672, [Reported in 1 Veniris, 217.] In debt upon an escape ; the plaintiff sets forth in his declaration a voluntary escape. 1 Yel. 195. 2 Moore v. Boulcott, 1 B. N. C. 323 ; Stubbs v. Lainson, 1 M. & W. 728 ; Dawson V. Wrench, 8 Ex. 359 ; Richardson v. Smith, 29 Cal. 529, accord. Conf. Eden v. Turtle, 10 M. & W. 685; Bradley v. Milnes, 1 B. N. C. 644. — Eo. C 82 BRIDGWATER V. BYTIIWAY. [CHAP. III. The defendant, p rotes ting that he did not let him voluntarily es- cape, pipnrls that he took him upon fresh pursuit . To which it was demurred, because he did not traverse the voluntary escape, and resolved for the defendant ; for it is impertinent for the plaintiff to allege it, and no ways necessary to his action. It is out of time to set it forth in the declaration ; but it should have come in the replication. It is like leaping, as Hale, C. J., said, before one come to the stile. As if in debt upon a bond the plaintiff should declare that at the time of sealing and delivery of the bond the defendant was of full age, and the defendant should plead deins age without traversing the plaintiff's allegation. Whiting and Sir G. Reynell's Case ^ seems to be against it ; but Harvey and Sir G. Reynell's ^ is resolved that no ♦'•averse is to be taken.* BRroGWATER v. BYTHWAT. In the Common Pleas, Easter Term, 1683. [Reported in 3 Levinz, 113.] JJ ATTERY : defendant pleads a judgment obtained by his father against Elias Jones, and an execution thereupon, whereon the goods of Jones were taken in execution, and that the plaintiff assaulted the bailiffs, and would have rescued the goods; whereupon, in aid of the bailiffs, and by their command, the defen dant niolli ter manus i mposu it upon the plaintiff to preve nt his re scue of the g oods . The plaintiff repli ed, de injuria sua propria nJ^^tgup, hoc that the d efend ant by command of the bailiff s, and in aid of them, to prevent a rescue of the goods, &c. Whereupon the defendant demurred generally ; and upon argument it was resolved by the whole court r 1. That t he replication in traversing the conrnian rl nf tbc^ bj^jliff s was not good; fo r he might of hims elf do that, to prevent the rescue, which is a tort and a b reach ot tne peace. 'Z. The detendanrs plea is ill ; for the action was brought as for a battery at W., and the defendant justifies at L., in tlie same county ; whereas the bailiffs have authority throughout the whole county, and therefore the cause of justification in the same county not local, so that he should have conformed and justified in the same place, being the same county, where the plaintiff declared. And if the place had been material, he ought to have traversed all other 1 Cro. Jae. 652. 2 Latch, 200. ' HoUis V. Palmer, 2 B. N. C. 713 ; Eicketts v. Loftus, 14 Q. B. 482 ; Middleton v Graveley, 12 Price, 513, accord. See Lush v. Russell, 5 Ex. 207, per Parke, B. — Ed. SECT. I.] CROSSE V. HUNT. 83 places within the same county ; and sic, quacunque via data, the plea is ill. Whereupon judgment was given for the plaintiff.^ OROSSE V. HUNT. In the Common Plbas, Michaelmas Teem, 1689. [Reported in Carthew, 99.] Debt upon a specialty for £200, which was to this effect, scil, that the defendant did declare from his heart before God that he had taken the plaintiff to be his wife, as she had taken him for her husband ; and the more to confirm the said plaintiff that he had no design but to perform his promise aforesaid, he the said defendant obliged himself by the same deed to pay unto the plaintiff £200 if he should happen to be so base as to be worse than his word, and that if he did not pay it when demanded, she the plaintiff should have good right to sue and recover it by law, &c. The breach assigned was, that she had tendered herself to marry the defendant, but that he refused, and afterwards married another woman, per quod actio accrevit, &c. The defendant plea ded that he after the making the aforesaid writing obtulit se to marry the plaintiff, and she refused, a bsque hoc, T "^"--^ that he r efused to take her for his w ife befor e she had refused__tp "l'>-«>-*-»-~ take him for_her husband. -^17*^ The plaintiff replied that she tendered herself to marry the defend- „_.,...> > ant, and he refused, absque hoc, that the defendant offered himself to«-t^'^-.-^ marry the plaintiff, et hoc, &e. ~^ "^ And upon a demurrer to this replication, it was insisted for the"^'. defendant that the traverse in it was ill, because she had traversed (• that which was the inducement of the traverse in the bar; so that it is a traverse upon a traverse, which the law will not allow. Besides, the words of this deed are in prcesenti, and not execu- tory, but declaratory of an act executed. On the other side it was argued that the words in this deed are sufficient to create a contract, and that of the highest nature, for God is called as a witness to it ; and these words cannot import any othei sense, but only a contract to marry the plaintiff. That the traverse in the bar is ill, because it is too large, for the defendant had traversed more than was alleged in the declaration. ' Parish v. Stanton, 2 Root, 155, accord. — Ed. 84 WHITE V. BODINAM. [CHAP. III. Soil. Absque hoc, that he had refused to take the plaintiff for his wife before she had refused to take him for her husband ; so that he intended to make this circum stance of time parcel of the issue ; ^„i./.vQnc fhoi-o ]f^ nr. cnfh r^irr^nrpptar tce alleged JH the declaration , nor any afEnmation, that the defendant had refused before the plaintiff" had refused; and therefore because the traverse in the bar was idle ^nd I jiivolons, the plaintiff might well traverse the substance of the matter of the bar ; and of this opinion was the court as well to the pleading as to the matter in law. Judgment for the plaintiff} WHITE V. BtDINAM. In the Qfben's Bench, Eastee Term, 17#4. \Reiported in 2 Salkeld, 629.] ^ Lessee for years brings coven ant again st the lesso r, de^gfeng upon A demise and coven ant for quiet e njoyme nt, and assigns fS^breach that the lessor did enter u£on him and oust him of the premisg at- The defendant pleads, that he entered to distrain for rent-arrear, a^jjg^^gg, that he ousted him de prcemis sis. To which the plaintiff demurred, thinking the traverse ill ; because if he ousted him of any part of the premises, he had a good cause of action, therefore he should have traversed, absque hoc, that he ousted him of the premises, or of any part thereof.' Vide Colborne v. Stockdale. But, per Cur., The plea is well enough in this case ; for if the plaintiff will join issue upon the I matte r of the traverse, and prove the ouster of any part, the issue , shall be for hi m. And the court took a diversity between pleading the general issue, as in debt, you must plead non debet nee aliquam inde parcellam, and a special issue , as this is. 3 Cro. 83, 84; Dyer, 115. Judgment for the defendant? 1 Powers V. Cook, Ray. 63 ; Talbot v. Woodhouse, 3 Lutw. 474 ; Rex v. Jordan, C. T. Hard. 255 ; Bishton v. Evans, 2 C, M. & R. 12 ; Worley v. Harrison, 3 A. & E. 669 ; Bird «. Holman, 9 M. & W. 761 ; Trower v. Chadwick, 3 B. N. C. 334 ; Breck V. Blanchard, 20 N. H. 323, accord. —Ed. 2 Teril v. Dune, Dy. 115 b ; Robsert o. Andrews, Cro. EI. 82 ; Waltliam v Sparks, Ray. 42, accord. — Ed. SECT. I.] COLBORNB V. STOCKDALE. 85 GILBERT V. PARKER. [ha THE Queen's Bench, Eastee Teem, 1704. • [Reported in 2 Salheld, 629.] In r eplev in for taking cattle, the defend ant made conusan ce that A., his maste r, was_seigg^ oi_ the lo cus in quo, and per ejus prcee^; he took them damage-feasant. Plaintiff replied, that he was seised of one- third part, and put in his cattle, a bsque h oc, that the_said A. was sole_ seised . To this the defend ant de murre d, and judgment was given against him ; for the defendant makes a conusance under his master as sole seised, when he was only tenant in common ; in which case he should have pleaded according to the truth, that he was only tenant in common, &c. When the defend ant pleads his master was seised in fee of the place where, & o., that must necessarily be unde rstood that he is sole seised ; and whatever is necessarily understood, mtended, and implied, is traversable as much as if it were expressed ; and, therefore, though a seisin in fee is only alleged generally, yet t hat being in - tended a sole seisin , t he plaintiff may traverse, absque hoc, that he ia sole seised; since the plaintiff makes himself tenant in common with the defendant, it had not been enough to say that he is tenant in common, without traversing the sole seisin.^ COLBORNE V. STOCKDALE. In the King's Bench, Hilaet Teem, 1722. <-. , [Reported in 1 Strange, 493.] L^^ -^ ' U- Debt upon a bond conditioned for the payment of £1,550. The defendant upon oyer pleads in bar that part of the sum mentioned in the condition, sciL, £1,500, was won by gaming, contrary to the stat- , nte, per quod the bond became void. The plaintiff r.^ies that the: bond wjas given for ajust debt, and t ravers es that the £1^00 was won ' bj_gaming, contra formam statuti modo et forma, as the defendant has pleaded. The defendant demurs, and Strange, pro def., argued that the replication was ill, because it 1 Meriton v. Briggs, 1 Bay. 39 ; Bonner v. Walker, Cro. El. 524 ; Chambers v. Jones, 11 East, 406; E. &L. R.R. Co. v. Hebblewhite, 6 M. & W. 707; Bowdon v Hall, 4 Q. B. 851 -accord. — Ed. 86 GRILLS V. MANNELL. [CHAP. III. makes the sum parcel of the issue, and obliges the defendant to prove that the whole sum of £1,500 was won by gaming ; whereas the stat- ute avoids the bond, if any part of the consideration became due on that account ; and he urged the common case of a plea of payment before the day, where if issue is joined, and a verdict pro que?', there shall be a repleader, because it leaves it open to a possibility that there might be a payment at the day, and then the plaintiff could have no cause of action ; so in this case the finding that..tbe whole sum of £1,500 was not won by gaming will not toll the presumption as to a less sum. Besides, the sum is put in only for form, and therefore within the reason of the case of Stallard v. Tims, the replication will be ill, for making it the substance of the issue.* Wearg, contra, insisted that the replication following the words of the plea would be well enough ; and cited Dy. 365, pi. 1, for that pur- pose. Sedper Curiam, There is no color to maintain the replication; the jnaterial part of the plea is . t hat part of the money for which the bond was g iven was won Vi y gaming, ^nd scilicet, so much, js onlvnial^ ter ^of form, of which no notice should be taken in the replication.*)' GEILLS V. MANNELL. In the Common Plbas, November 29, 1742. [Reported in Willes, 378.] ^ The following opinion of the court was given by Willes, Ld. C. J. Reglevm, in which the plaintiff declares for taking one red ox, one brown ox, and two brown steers, on the 28th of March, 13 Geo. II., at a place called Trewoodla, at Southill, in Corn- wall, and detaining them, &c. Damage, £13. • Only so much of the case is given as relates to the sufficiency of the replica- tion. — Ed. 2 Y. B. fol. 10, pi. 47 ; Anon., 2 Leon. 13 ; Sherman v. Brampton, Latch, 92 ; Rex K. Kilderby, 1 Saund. 312 ; Dring v. Eespass, 1 Ley. 193 ; Thomas v. Nichols, 3 Lev. 41 ; Payne v. Brigham, 3 Lev. 228 ; Palmer v. Elkins, 2 Stra. 818 ; Brown 'v. John- son, 2 Mod. 145 ; Helliott ^. Selby, 2 Ray. 902; Osborne v. Rogers, 1 Saund. 267; Thurman v. Wild, 11 A. & E, 458 ; Basan v. Arnold, 6 M. & W. 559 ; De Medina v. Norman, 9 M. & W. 820 ; Tempest v. Kilner, 2 C. B. 300 ; Aldis v. Mason, 11 C. B. 140; Caulfield v. Sanders, 17 Cal. 569; Thompson v. Fellows, 21 N. H. 425; Rog- ers V. Burk, 10 Johns. 400 ; Baker i,. Bailey, 16 Barb. 54 ; Salinger v. Lusk, 7 How. Pr. 480 ; Davison v. Powell, 16 How. Pr. 467 ; Schaetzel v. Ins. Co., 22 Wis.' 412, ac- cord. — Ed. SECT. I.J GRILLS V. MANNELL. 87 The defendant, Mary, avows in her own right, and the defendants, Thomas and Samuel, as her bailiffs, acknowledge the taking, &c. ; be- cause they say that long before the time when, &c., viz., on the 25th of March, 4 Geo. II., by a certai n i ndentu re made betwe en the said Mary and the^ plaintiff, the said Mary, for the consideration of a sum of money, did bargain and sell to the plaintiff all that moiety or halfen- deal of all those messuages, &c., in Trewoodla, in the parish of South- ill, whereof the said close wherein, &c., then and long before was and is parcel, together with a certain parcel of common, and all other ap- purtenances, &c., to the said messuage, &c., belonging, then in the occu- pation of the plaintiff, to hold from the day next before the date of the said indenture for one year ; by virtue of which bargain and sale the plaintiff was possessed, &c., the reversion thereof belonging to the said Mary and her heirs, and being so possessed, and the reversion thereof belonging to the said Mary and her heirs as aforesaid, she, the said Mary, afterwards, and before the time when, &c., by another indenture made 26th of March, 4 Geo. II., between the said Mary and the plaintiff, for and in consideration of the annuity therein mentioned to be paid to her from and out of the premises during her natural life, and of Is. to her in hand paid by the plaintiff, did release to the said plaintiff and his heirs for ever the said reversion with the appurtenances, to have and to hold the same to the plaintiff and his heirs, to the use of him and his heirs for ever, subject to the payment of the rent-charge or annuity thereafter mentioned; that is to say, that it should and might be lawful for the said Mary and her assigns during the term of her natural life to have and receive one annuity or yearly rent-charge of £1 10s. of lawful money of Great Britain, free from all taxes, &c., and to be paid at the four most usual feasts, viz., the feast of St. John the Baptist, &c., by four even and equal portions ; and by the said indenture it was agre ed tha t if t^e said annuity of £7 10s. should be behind aiid unpa id twenty-one days after any or either of the said feast-days, &c., ii_should and mig ht be lawf ul for the said Mary and her assigns to enter u pon the premises and to di s train , &c. ; by virtue of which said lease and release, and by force of the statute, &c., the plaintiff entered into and became seised of the premises, &c., in his demesne as of fee, subject, &c.; and the c]g|kidants justify taMng the cattle b^ way of distress for £9 7s. M.. arrears of rent due for a year and a quarter ending at Christmas, 1739, and not paid within twenty-one days afterwards, wherefore they pray judgment, &c. The plaintiff to the avowry, protesting that he never entered into the said premises by virtue of the lease and release, for i3l£a saith that he never was seised of the said premises mentioned in the said inden- 88 GRILLS V. MANNELL. [CHAP. III. ture of release in his demesne as of fee ; and this he prays may be inquired of by the country.' To this plea the defendants demur generally. To the first plea there are two objections : ^ 1st. That it denies what is before admitted; 2d. That the traverse is only of a consequence of law. ...And we are. .of opinion that the first plea is bad in both these respects. First. Because the plaintiff* has d enip^l t hat he was s eised in fee by virtue o f the lea se and release, th ough he has in efl'ect admitted Tt before ! Jj or in this plea h e has not denie d, not even by way of pro- testando, th at M. _Ma,nnell was seised in fee at the time of i n piling -Lbf* l ease and release; and though he has denied it in the second plea, that will make no alteration, it being a known rule and never controverted that one plea cannot be taken in to help or destroy another, but every plea must stand or fall by itself. And as he has admitted in this plea that Mary was seised in fee, and that being so seised she made a lease and release to the plaintiff and his heirs, the necessary consequence of that is that he must be seised in fee by virtue of such lease and release; for I defy any one to put a case where a person seised in fe e makea a lease and release to anotner ana nis heirSj and vet the grantee shall not be seised in fee : and yet this is the very thin j j denied by this plea. . Secondly. If there could be any doubt of this (but there certainly is none), the only doubt would be, whether this be the necessary con- sequence in law; that is, whether these deeds of lease and release have this operation in law or not. And it is a certain 'mown rule, ■never, that I know of, once controverted, that a man cannot traverse a consequence of law, and for this plain reason because it is a matter of law and not of fact, and therefore not proper to be tried by a jury. We are therefore clearly of opinion with the defendants that the first plea in bar of the avowry is not good. Judgment therefore must he for the defendants.^ 1 A portion of the case relating to the second plea, which was held good, is omit- ted. — Ed. - The case was argued on the 22d of May preceding by Draper, Serjt., in support of the demurrer, and by Gapper, Serjt., contra. * Willion V. Berkley, Plow. 231 a; Hume v. Liversidge, 1 C. & M. 332; Groenvelt V. Burwell, Kay. 454 ; Crowther v. Ramsbottom, 7 T. R. 654 ; Dangerfield v. Thomas, 9 A. & E. 292 ; Rixford v. Wait, 11 Pick. 839, accord. Conf . Heal o. Simpson, Ray. 410 ; Grocers' Co. u. Archbishop, 2 Blackst. 776 ; Avery v. Cheslyn, 8 A. & E. 7o ; Lucas V. Nockells, 4 Bing. 729; 10 Bing. 158; Carnaby v. Welby, 8 A. & E. 872; Hewitt V. Macquire, 7 Ex. 80 ; Ransford v. Copeland, 6 A. & E. 482 ; Drewe v. Lain eon, 11 A. & E. 629 ; Frost v. Hammatt, 11 Pick. 70 ; Stickle v. Richmond, 1 Hill, 77 —Ed SECT. I.] FOSHAT V. EICHE. 89 WALKER V. JONES. Ik the Exchequee, Eastee Teem, 1834. ■ — [Reported in 2 Crompton §• Meeson, 672.] ^>_Cti-v^i-^ Q- In this case, which was an action of detinue, the defendant pleaded a p]ea traversing the d eliver y; to which "^BSre was a demurrer. On the demurrer being called on for argument, Comyn stated that the plea had been drawn from a precedent in Chitty;! but that, after the case of Gledstane v. Hewitt,'' from which it appeared that the bailment in detinue was imm aterial, he could not support the plea. ' " The plea was ultimately struck out on payment of costs? FOSHAY V. RICHE. SuPEBMB CouET, New Yoek, Januaey, 1842. [Reported in 2 Hill, 247.] Dbmueebe to replication. The declaration was in replevin for taking, &c., certain goods. The defendant avowed the taking, &c., of the goods, as the property of one Miller, in wh^epossession they were at the time when, &c. Plea, a prior taking of the goods by the plain- tifij as under-sheriff of the county of Westchester, on a fi. fa. issued against said Miller ; and that at the time of the taking complained of, he, the said plain tiff, held and d etaine d the goods i_n quest ion by_yirtue of the ji. fa ., and for the purpo se of s atisfy ing the same. Replicatio n. protesting the issuing oi the fi. fa., and a sserting that t he plainti ff did not, a t the time when, &c., lawful ly hold a nd detain the^g oods in v irtue thereof. Demurrer and joinder. ' M. T. Reynolds, for the plaintiff. ^ J. L. Tillinghast, for the defendant. ^ Per Curiam. The r eplication attempts to put in issue matter of law, rather than of fact. It protests the issuing of the^./a., and then, 1 3 Chit. (4th ed.) 1028. 2 1 C. & J. 565. 3 Kempe v. Crews, Ray. 167 ; Cooke v. Birt, 6 Taunt. 765 ; Hall v. Tapper, 3 B. & Ad. 655 ; Lush v. Russell, 5 Ex. 207 ; Radford v. Smith, 3 M. & W. 254 ; Spaeth V. Hare, 9 M. & W. 826 ; Reg. v. Dendy, 22 L. J. Q. B. 247 ; Hodgins v. Hancock, 14 M. & W. 120 ; Whitehead v. Harrison, 6 Q. B. 423; Chandler u. Chandler, 21 Ark. 95; Freeman v. Curran, 1 Minn. 169 ; Gates v. Lounsbury, 20 Johns. 427 ; Marvin v. Wil- kins, 1 Aik. 107 ; Hale v. Dennie, 4 Pick. 501 ; Loring v. Gay, 9 Pick. 66, accord. — En 90 FOSHAT V. RICHE. [CHAP. III. without meeting the plaintiff's allegation that, at the time of the taking complained of, he held and detained the goods under ajl.fa. in virtue of a previous levy, it simply asserts that he did not lawfully hold and detain them. In short, the replication neither denies the matters alleged in thsr T>Iea, nor does it confess and avoid them. There must be judgment lor the plaintiff. Ordered accordingly.^ 1 Mason v. Craig, 3 St. & Port. 389 ; State v. Saddler, 6 Ark. 286 ; Cassady v. Clarke, 7 Ark. 123 ; Calvert v. Lowell, 10 Ark. 147 ; Landis v. People, 39 111. 79, ae- v>rd. See Swift v. Maoken, 8 1. B. C L. 140. — Eo. SECT. II. J SMITH V. PARSONS. i)! SECTION II. General Issue and Specific Traverses. (a) Special Assumpsit. SMITH V. PARSONS. At Nisi Peius, coeam Lord Abinger, C. B., June 27, 1837. , [Reported in 8 Carrington Sf Payne, 199.] A-^*-^ ,uU The declaration stated in substance that, in consideration that the" plaintiff would give the defendant a horse, and the sum of £2, the'' defenda nt agreed_iQ sell him a horse, and undertook and promised ^ that the horse was sound, and quiet in harn ess, whereas in_fact it was . notj^&c. , The defendant plead ed only that^e did not unde rtake and promise in mann er a nd form as_the_^aintiff had alleg ed. A witness was called for the plaintiff, who stated that after the bar- gain was made, and when the plaintiff was about to take away the horse he had purchased of the defendant, he said to him, " I suppose you warrant it all right, sound and quiet to drive ; " to which the de- fendant replied, " Yes, it is all right ; I warrant it perfectly sound and quiet in all respects." Payne, for the defendant, inquired whether his Lordship thought, the warranty proved agreed with that stated in the declaration. Lord Abiitgee, C. B. Yes ; I think it does. The w arranty proved ia. t hat the horse was sound and quiet in all respects, a nd t hat includes the being quiet in harness. Payne then proposed to call witnesses to show that the plaintiff himself had injured the horse, and that it was not unsound at the time of the sale. Lord Abinger, C. B., was of opinion that the plea did not put in issue the question of soundness, and therefore that the evidence was not admissible. Verdict for the plaintiff ; damages, £8.* 1 See Shilcock v. Passman, 7 C. & P. 289. Conf. Warre v. Calyert, 7 A. & B. 166, — Ed. 92 DB PINNA V. POLHILL. .[CHAP. III. DE PINNA V. POLHILL. At Nisi Peius, coeam Tindal, C. J., June 29, 1837. [Reported in 8 Carrington ^ Payne, 78.] THB-'-first count of the declaration stated that before' the com- mencement of the suit, and before the making of the promise, &c., the plaintiff had composed and written the music and poetry of a certain opera, called " The Rose of the Alhamhra, or the Enchanted Lute," and, as such composer and author, had a right to the music and poetry of the said opera, and in consideration of the premises, and that the plaintiff would sell him such right for three hundred guineas, the defend ant u ndert ook and faithfully promised to buy of him his right in the said music , &c. It then averred defaiilt on the part of ■ the defendant. There was a second count, stating that three hundred guineas was to be paid for the permission to perform the opera at Covent Garden Theatre, and the Lyceum or English Opera House. The defend ant pleade d only the general issue , that he did not under take and promis^ n man ner and form , &c. The agreement consisted of two letters, which were mutually signed by the parties and exchanged. One of the plaintiff's witnesses ad- mitted on his cross-examination that one of the songs was written by Mr. Fitzball. Crowder, for the defendant. The question is, whether this is to be taken as a sale of the copyright of the music and poetry. There is an averment that the plaintiff did sell. TiNDAL, C. J. You have not taken issue upon that. If you had, the question would arise whether any thing short of a deed would do. Crowder. There is no evidence that the plaintiff was the author of the poetry. On the contrary, it appears that Mr . Fitz]:)all wrote on e of the song s. Is the defendant to pay the three hundred guineas, and then find that he has no right at all ? TnsTDAL, C. J. All your difficulty arises from the state of the record. You do not say that the plaintiff did not write and compose. Thesiger, for the plaintiff. There is a case of Barnett v. Glossop,^ in which this point arose : that was an action on a verbal agreement, and it was held that a defence on the ground that the agreement should have been in writing must be pleaded specially. Orowder. It does not appear that there was not to be a regular transfer by deed. TiNDAL, C. J. I think there ought to be, but you have admitted that there was. » 3 Dowl. Prao. Ca. 625. SECT. 11.] METZNER V. BOLTON. 9^ Crowder. Does not your Lordship think that the denial of the promise is a denial of that on which it is founded. TiNDAL, C. J. No ; they are separate averments antecedent to the promise, and you should have pleaded that the plai ntiff did not sel l, or that he had not the right , or that he was not the author ; aiiT'as you have not, you must be taken to have admitted these facts as fa r as t he jury are concerned, who have to decide on this issue. ' ~ Verdict for the plaintiff ; damages, £315.A/' ■< -+- \ h -t — *-\\^' METZNER V. BOLTON. In the Exchequer, Hilary Teem, 1854. [Reported in 9 Exchequer Reports. 518.] The declaration stated that, in consideration that the plaintiff would enter the service of the defendant as a commercial traveller for one year, the defendant agreed to employ the plaiSMB*in the capacity aforesaid, at and for the yearly salary of £150, and to continue him in such service for one whole year. Averments, that the plaintiff entered into the service of the defendant ir. the capacity and on the terms aforesaid, and continued in such service until a certain day before the expiration of the year. Breach, that although the plaintiff was ready and willing to continue in the service of the defendant, yet the de- fendant wrongfully dismissed him therefrom. Plea, non-assumpsit. At the trial before Martin, B., at the London sittings after last Trinity term, the plaintiff was examined, and proved that he and the defendant met at a hotel in London, when an agreement was come to between them precisely as stated in the declaration ; that he entered into the employment, and went a journey into the west of England, after which the defendant dismissed him within the year, upon a ground which turned out to be unfounded. On cross-examination, the plain- tiff admitted that there was a usage in the trade in which the plain- tiff was so employed, that in any yearly hiring of a traveller either party might put an end to the employment on giving three months' notice. It was objected on behalf of the defendant that, under these cir- cumstances, if such usage was proved to exist so generally as that it was to be considered as imported into the contract of hiring, there 1 Conf. Bell v. Welch, 9 C. B. 154. — Ed. 94 MBTZNER V. BOLTON. [CHAP. Ill, would be a misdescription of the contract, and a -variance upon non- assumpsit. The learned judge thought that the contract being for a year was proved according to the allegation, and that the power to determine it, coming by way of defeasance of the contract, need not be noticed by the plaintiff, but must be pleaded and proved by the defendant. The plaintiff's counsel then agreed that it should be taken as a fact that the engagement was so determinable ; and the question of damages having been left to the jury, they found a verdict for the plaintiff for £56. A rule nisi having been obtained to set aside the verdict, and for a new trial, on the ground of misdirection, J'rentice showed cause in Hilary term (January 17). There is no misdescription of the contract. With respect to a covenant or a stat- ute, the rule of law is clear. In declaring on a covenant it is not necessary to notice a proviso or condition subsequent; though it is otherwise where the exception is contained in the covenant itself. Vavasour v. Ormrod.^ So where a statute imposes a penalty, and in a subsequent clause there is an exemption, that must come by way of plea. Chitty on Pleading, vol. i. p. 245 (7th ed.). This is a middle case. The contract is to employ for a year; but it is sought to import into it the usage of trade to determine the employment by three months' notice. That custom is in the nature of a proviso or condition subsequent in a deed, and should therefore be pleaded. In the case of a tenancy from year to year, the law implies that it may be determined by proper notice ; but in declaring on such a contract, it is not neces- sary to show how it may be determined. [Paeke, B. It is stated as a tenancy from year to year for so long as both parties shall agree.J This resembles the case of a lease for seven years, with a proviso for determining it at the end of the first year; and in declaring on such a lease the proviso need not be noticed. [Aldbeson^, B. When a person hires a domestic servant, though nothing is said about notice, it is plain that, according to the custom of England, it is a hiring for a year, with liberty to put an end to the contract by giving a month's notice. So in making this contract the parties must be supposed to be speaking according to the custom of the trade ; and the plaintiff would Bay to the defendant, " I agree to hire you for a year, provided that if I give you three months' notice the contract shall be put an end to." That is not an absolute hiring for a year certain.] Smart v. Hyde is an authority that if the custom relied on in this case had been pleaded, the plea would not have been bad as an argumentative denial of the contract. In Weedon v. Woodbiidge,^ the plea set up a consideration for the promise materially different from that stated in the declaration, 1 6 B. & C. 430. 2 13 Q. B. 462. SECT. II.j METZNER V. BOLTON. 95 and yet it was held not to amount to the general issue. It is said that the defendant is prejudiced by this mode of declaring, because he can- not pay money into court without admitting the contract ; but that objection would equally apply to a declaration against a earner for the loss of goods, which may be in the common form, notwithstand- ing he has by notice limited his responsibility to a particular amount. Clarke v. Gray.^ T. Jones, in support of the rule. The doctrine as to provisos and exceptions, which is not disputed, has never been applied to declara- tions on parol contracts. The observations of Lord Tenterden in Vavasour v. Ormrod^ are confined to instruments under seal. The true test in this case is, whether a plea that the employment was determinable by three months' notice would, before the Common-law Procedm-e Act, have been bad as amounting to the general issue. It is submitted that it would, inasmuch as it would have set up a con- tract inconsistent with that alleged. The declaration states an abso- lute contract, whereas the plea would show that it was conditional. Nash V. Breeze ' and Sharland v. Leifchild * are express authorities that a plea which introduces matter qualifying the contract stated in the declaration is bad as amounting to the general issue. In Smart v. Hyde, the matter pleaded did not contradict the contract, but was something collateral to it. Baxter v. Nurse ^ affords a strong instance of the admissibility of evidence for the purpose of explaining a con- tract by usage. Here the contract was, that the service should only last so long as either party refrained from giving the other three months' notice, and that is totally inconsistent with the statement in the declaration that the plaintiff agreed to continue the defendant m his service for one whole year. Cur. adv. vult. The judgment of the court was now delivered by Paekb, B. This case was argued during last term, upon showing cause against a rule for a new trial of a cause tried before my brother Martin. My Lord Chief Baron, my brothers Alderson, Martin, and myself were present. It was an action of assumpsit. [His Lordship then stated the pleadings, facts, and ruling of the learned judge, as above set forth.] We think that this ruling of the learned judge can- not be supported It is quite certain that general usages are tacitly annexed to all contracts relating to the business with reference to which they are made, unless the terms of such contracts expressly or impliedly ex- clude them. This, therefore, must be considered as a contract for the defendant to hire, and the plaintiff to serve for a year, determinable 1 6 East, 564. 2 6 B. & C. 430. s n m. & W. 352. « 4 C. B. 629. 6 6 Map *- G. 936. 96 MBTZNER V. BOLTON. [CHAP. HI on three montns' notice. Whittaker v. Mason.^ And the question is, whether in this form of action this power of determining the contract need be noticed by the plaintiff in describing it. In an action of cov- enant on an instrument under seal, consisting of several clauses, there is no doubt the plaintiff may declare upon so much of the deed as contains the covenant on which he proceeds, which is obligatory be- cause it is under seal ; and it is for the defendant to show the proviso, if any, which defeats it. See 1 Saunders, 233 a, note. So, where an interest or estate passes presently, and is to be divested by matter subsequent, it is enough to state the estate which vested; and the matter defeating it must be pleaded by the party who would take advantage of it. Ughtred's Case.^ But this is not either the descrip- tion of a covenant under seal, or of a vested estate or interest, but of the substance and effect of a parol contract between the parties, and a defeasible contract cannot correctly be described as an absolute one. It is not true that the defendant undertook to employ the plaintiff for a year in consideration of the plaintiff's services for a year, for the true contract was, that the defendant would employ him for a year, determinable at any time by three months' notice, in consideration of the plaintiff serving him for that time. And if, instead of stating the contract in this short form, it had been expanded into a statement of a contract with mutual promises, the whole to be done on each side must have been stated, and it would have been clearly a variance to allege that the contract on the plaintiff's side was to serve for a year ; because it was only to serve for a year unless he or the defendant chose to determine it by three months' notice; and so the corresponding promise to employ by the defendant. The shorter statement in the declaration in this case cannot exonerate the plaintiff from stating the substance of the contract correctly. Had this defeasance been stated by way of plea to this declaration, it would have been demurra- ble specially, before special demurrers were abolished, on the ground that it amounted to the general issue, because it was a qualification of the contract itself, and therefore an argumentative denial of the contract alleged. The abolition of special demurrers cannot make a difference in the meaning of the words of the allegation, and a con- tract with a defeasance is not the same as a contract without one, consequently the variance is fatal. We think, therefore, that the ruling cannot be supported. My brother Martin is not quite satisfied with this view of the case, and would, we believe, decide it otherwise if the decision depended on himself. Hule absolute' > 2 Bing. N. C. 359. 2 7 Eep. 9 6. ' Conf . North u. "Wakefield, 13 Q. B. 536 ; Fazakerly v. M'Knight, 26 L. J Q. B 80.— Ed. SECT. II.J BROOMPIELD V. SMITH. 97 General Issue and Specific Traverses — (^continued). (J) General Assumpsit. GARDNER v. ALEXANDER. Ik the Common' Pleas, Michaelmas Term, 1834. [Reported in 3 Dowling, 146.] KJKLLT moved for a rule for leave to plead several matters. The action was for goods bargained and sold. The declaration was in the common form, and the alleged defence was, that the goods were bar- gained and sold ; but that it was under a special written contract, two of the conditions of which were, that the goods should be shipped within the current month, and landed in London within a given time. Neither conditions having been complied with, the defendant refused to accept the goods. The difficulty which had arisen in the mind of the special pleader was, whether proof of these facts could be given under the general issue, or whether it was not requisite to plead them specially. Per Curiam. It is unnecessary : you may give in evidence the special contract under the general issue. KeUy took nothing by his motion.' BROOMFIELD v. SMITH. In the Exchequer, Trinity Term, 1836.] \Rej>oTted in 1 Meeson ^ Welsby, 542.] ^ Debt for goods sold and delivered. Plea, nunquam indebitatus!, At the trial before Arabin, Serjt., at the Sheriff's Court in London, 1 Goods BAROAiifED and sold — Goods bold and delivered : Grounsell v. Lamb, 1 M. & W. 352 ; Garey v. Pyke, 10 A. & E. 512 ; Cousins v. Paddon, 2 C, M. & R. 547 ; Symes v. Goodfellow, 4 Dowl. 642 ; Edraands v. Harris, 2 A. & B. 414 ; Roffey v. Smith, 6 C. & P. 662, contra. Work and labor : Milner v. Field, 6 Ex. 829 ; Bracey u. Carter, 12 A. & E. 373 ; Long v. Orsi, 18 C. B. 610 ; Randall v. Ikey, 4 Dowl. 682 ; Turner v. Diaper, 2 M. & G. 241 ; Newton v. Forster, 12 M. &. W. 772 ; Jones v. Reade, 5 Dowl. 216. Monet paid : Lewis r. Samuel, 8 Q. B. 685. Monet had and received-; Brownrigg v. Rae, 5 Ex. 489. Monet lent : Mathew V. Blackmore, 1 H. & N. 762. Account stated : Thomas v. Hawkes, 8 M. & W. 140 , French v. French, 2 M. & G. 644; Clarke v. Webb, 1 C, M. & R. 29 ; Wilson V. Wilson, 14 C. B. 616 ; Fetch v. Lyon, 9 Q. B. 147 ; Wells v. Girling, 8 Taunt. 737 ; Pierce v. Evans, 2 C, M. & R. 294 ; Smith v. Winter, 12 C. B. 487. Use and ocor- p«Ti0N : Waddilove v. Bamett, 2 B. N. C. 538, accord.— 'En. 7 98 BUSSET V, BARNETT. [CHAP. III. the sale and delivery having been proved, the defendant proposed to show that the goods were sold on a credit which had not expired when the action was brought. It was objected for the plaintiff, on the authority of Edmunds v. Harris,^ that such defence was n"ot admissible unless specially pleaded ; the learned serjeant so ruled, and rejected the evidence, and the plaintiff had a verdict. Barstow obtained a rule for a new trial, citing Taylor r. HUary," Cousins V. Paddon,^ and Alexander v. Gardner, to show that Ed- munds V. Harris could not be supported. Myland showed cause, and again relied on Edmunds v. Harris. [Alderson, B. How does this evidence confess or avoid the debt ? It denies that there ever was a debt before action brought.] It ad- admits a debitum in prcesenti solvendum in futuro. [Aldeeson, B. There is no debt till the credit has expired. How is the defendant indebted for goods sold and delivered till then ?] The principle of the New Rules is, that any matter which goes to avoid the cause of action must be specially pleaded. [Aldeeson, B. Avoiding is admitting the cause of action, and afterwards avoiding it ; here the defendant denies a cause of action.] The evidence appears to admit a debt, though not yet payable. Lord Abingee, C. B. It would show that the plaintiff had no cause of action at the time of action brought. This court has already decided * that where there is a special contract for goods sold, which has not been performed, and the plaintiff brings his action on the implied assumpsit, he may be met by that defence under the general issue. The rule must be absolute for a new trial. Rule absolute. BUSSEY v. BARNETT. In the Exchequee, Januaet 14, 1842. \RepoTled in 9 Meeson ^ Welsby, 312.] Debt for goods sold and delivered, and on an account stated. The particulars of demand claimed the sura of £.3 5s. 6d., being the balance of an account for goods sold and delivered by the plaintiff to the de- fendant. Pleas, except as to the sum of 4s. Qd., parcel, &c., nunquam indebitatus ; as to that sum, a tender, which was denied by the repli- cation. At the trial before the under-sheriff of Middlesex, it appeared that the action was brought to recover an alleged balance of a disputed 1 2 Ad. & E. 414; 4 Ner. & M. 182. 2 1 C, M. & R. 741, 3 2 C, M. & K. 547. * Cousins V. Paddon, sivpra ; Grounsell v. Lamb, 1 M. & W. 352. SECT. IT.] BUSSEY V. BARNETT. 99 account for goods bought by the defendant, for ready money, at the plaintiff's shop. The defendant produced evidence to prove that, within ten minutes after the delivery of the goods at his house, he paid for them in full, with the exception of the 4s. Qd., as to which the tender was pleaded. It was objected for the plaintiff that it was not competent to the defendant to give evidence of this payment, there being no plea of payment on the record; but the under-sheriff thought that, under the circumstances, no debt ever arose between the parties, and therefore the evidence was admissible under the plea of nunquam indebitatus, and he accordingly received it ; and the tender being also proved to the satisfaction of the jury, the defendant had a verdict on both issues. C Jones now moved for a new trial, on the ground of misdirection, and contended that he defence was inadmissible without a plea of payment. [Aldbeson, B. The plea of nunquam indebitatus means that there never was a sale of goods to the defendant on credit. This was a mere exchange of goods for money, and no debt ever arose. LoED Abingek, C. B. There was no contract whereby the defendant became indebted to the plaintiff.] In Goodchild v. Pledge, where to a count in debt for £20 for goods sold and delivered the defendant pleaded, that before the commencement of the suit, and when the said sura of £20 became due and payable, to wit, on, &c., the defendant paid the plaintiff the said sum of £20, according to the defendant's said contract and liability; this plea was held bad on demurrer for concluding to the country, and not with a verification ; and Parke, B., there says, " The moment the goods are delivered, is there not a cause of action, throwing the proof of its discharge on the defendant?" And he adds, " The new general issue, that the defendant never was indebted, that is, at no instant of time, was framed for the express purpose of making all these defences pleadable by way of discharge." [Aldeeson, B. What the learned judge there means is, that the moment goods are delivered on credit a contract ai-ises whereby the defendant becomes indebted. No doubt that was a proper case for a plea of payment.] This was a defence in the nature of confession and avoidance. LoKD Abingee, C. B. In this case the goods were not delivered upon a contract out of which a debt arose ; there was no promise to pay, but immediate payment. Aldeeson^, B. Where there is a contract for the sale and delivery of goods for ready money, and ready money is paid, there is no debt. GuejSTet, B., concurred. Mule refused} I Wood V. Bletcher, 4 W. R. 566, accvrd. Conf. Littlechild v. Banks, 7 Q. B. 739 ; Timmins v.. Gibbins, 18 Q. B., 726; Smith v. Winter, 12 C. B. 489 , Baker v. Heard, 5 Ex. 959. — Ed. 100 TORRENCB V. GIBBINS. [CHAP. III. General Issue and Specifio Traverses — (^continued'). (c) Tbesfass. KNAPP V. SALSBURT. At Nisi Peius, coeam Loed Ellenboeough, C. J., Nov. 17, 1810 [Reported in 2 Campbell, 500,] Tebspass for running against the plaintiff's post-chaise, in which he was travelling along the highway, with a cart, and killing one of the horses drawing the post-chaise, by the shafts of the cart. Plea, not guilty. The defence relied upon was, that the chaise and the cart were travelling on the road in opposite directions, and that the collision be- tween them took place through the negligence of the plaintiff, or by mere accident, and withou t any defau lt on the part of the def^pdant. Loed Ellenboeough. These facta o ught to have been T)leaded |( BTOcialW. The only thing to be tried under the plea of not guilty is whether the defendant's cart struck the plaintiff's chaise and kiiiea nis horse . That it did is now admitted ; and the intention of the defend- ant is immaterial. This is an action of trespass. If what happened arose from inevitable accident, or from the negligence of the plaintiff, to be sure the defendant is not liable ; but as he in fact did run against the chaise, and kill the horse, he committed the ants stated in the dec- laration , and he ought to have put upon the record any justification he may have had for doing so. The plea denying these acts must clearly be found against him. Verdict for the plaintiff?- Park and Skapp, for the plaintiff. Jervis, for the defendant. TORRENCE v. GIBBINS. In the Queen's Bench, Novembee 17, 1843. [Eeporte^ in 5 Queen's Bench Reports, 297.] Declaeation for that defendant, to wit, on, &c., and on divers other days, &c., debauched Josephine Amelia Torrence, the daughter of '• Milman v. Dolwell, 2 Camp. 378 ; Boss v. Litton, 5 C. & P. 408 ; Pearoy v Walter, 6 C. & P. 232; HaU v. Fearnley, 3 Q. B. 919; Cotterill v. Starkey, 8 C & P (591, accord. — Ed. 8ECT. II.] TOERENCE V. GIBBINS. it)! plaintiff, « who during all the time aforesaid was, ana still is, the ser- vant of the plaintiff; " whereby she became pregnant, til) she was de- livered, &c. ; special damage for loss of service, expenses, &c.^ £Jg^ "that the said J. A. Torrence was not the servant of the plaintiff , in manner and form," &c. I^gjIUJlUgj, assigning for causes that the plea is argumentativ e and insufficient in this, to wit, that defendan t, instead of simply pleading that he is not guilty of the grievances set forth in the declaration, hath denied the same in a circuitous and argumentative manner , by alleging that the said J. A. T. was not the servant of plaintiff; for, if J. A. T. was not the servant of plaintiff, defendant could not be guilty of the grievance set forth in the declaration ; and for that the plea amounts to not guilty, and ought to have been pleaded in that form. Joinder in demurrer. Atherton, for the plaintiff. The fact of the service would be put in issue by a plea of not guilty. Such a plea puts the " wrongful act " in issue : R. Hil. 4 W. IV. ; Pleadings in Particular Actions, IV. 1 ; that is, either the act or that which constitutes its wrongfulness. In trover, not guilty denies the conversion only, not the title ; in an action for obstructing a right of way, the obstruction only, not the right ; but in an action for a nuisance, it denies " that the defendant carried on the alleged trade in such a way as to be a nuisance to the occupation." [LoED Denmast, C J. There is no illegality if there be no annoy- ance.] Then to which class does this action belong? If there be no illegality independently of some particular fact, that fact is put in issue. The mere seduction of the daughter is, legally speaking, no injury. It is not like a trespass to the person of the plaintiff, which prima facie is an injury. It may be that, if the relation could have been formally alleged by way of inducement, the plea of not guilty would have admitted it ; that is so in trover. But here the form of the declaration makes the relation the gist of the complaint. The whole action depends upon the resulting damage, to which the relation is essential. The case resembles Sutherland v. Pratt.^ [Loed Dbnman, C. J. There, unless the contract was made with the plaintiff, the alleged contract was not proved.] Byles, Seijt., contra. The relation is, in effect, mere inducement. The case is the same as if the declaration commenced by reciting that the plaintiff's daughter was his servant. The analogy of an action for obstructing a right of way applies. In Taverner v. Little, a declara- tion in trespass alleged that defendant was possessed of a cart and 1 The recital of the summons did not state the form of action ; there was no vi et armis in the body of the declaration. 2 11 M. & W. 296. 102 TORRENCE V. GIBBINS. [CHAP. III. horse, and complained of injury done by negligent driving of them; and it was held that not guilty admitted that the cart and horse were in defendant's possession. That decision was acted on in Hart v. Crowley.^ It is not true that the wrongfulness of the act is put in issue by not guilty; Frankum v. The Earl of Falmouth decides the contrary. Holloway v. Abell ^ is the only authority to be found in favor of the plaintiff: that was merely a decision at ]!fisi Prius ; and the verdict there prevented the question from being raised in banc, as the jury aifirmed the service. In an action for' criminal conversation, not guilty would not put the marriage in issue. Atherton, in reply. No attempt has been made to get rid of the dis- tinction suggested between cases where the act is a prima facie cause of action, and those where the damage arising from a particular re- lation is the very gist of the action. That distinction explains all the authorities cited on the other side. Thus the obstruction of a way is prima facie an injury. But there is no legal injury in seduction, unless the relation of servant exist. [Coleeidge, J. In an action for words injurious only in respect of the plaintiff's trade, not guilty does not put the trade in issue.] The example stated in the general rule as to an action for nuisance applies. LoKD Denman, C. J. It seems to me that the example is rather against you. No one can complain of an act that is not offensive at all. But, besides, the owner is the only person who can complain ; his ownership is essential to the right of action ; yet that is not traversed by not guilty. So here the s eduction injures the plaintiff , b ecause he is the master of the party seduce d ; and the same rule must be applied. Williams, J., concurred. Coleeidge, J. I am of the same opinion. I may mention that Mr. Justice Littledale, before the New Rules, considered the service to be a necessary result of the residence of the daughter' with the father. He once, in an undefended cause ' in which I was counsel, where the residence was proved, held it unnecessary to give evidence of acts of service. WiGHTMAN, J., concurred. Judgment for defendant.^ 1 12 A. & E. 378. 2 7 C. & P. 528. 5 Maunder v. "Venn, Moo. & M. 323. 4 Kenrick v. Horder, 7 E. & B. 628, accord; Holloway o. Abell, 7 C. & P. 528; Forman v. Dawes, Car. & M. 127, contra. See Eager v. Grimwood, 1 Ex. 68. — Ed SECT. II.J JONES V. CHAPMAN. 103 JONES V. CHAPMAN and Others. In the Excheqube Chambee, June 18, 1849. [Reported in 18 Xaio Journal Reports, Exchequer, 456.] Tresp ass for breaking and entering the plaintiff's dwelling-house. Plg a. that the d welling -house in the declaration mentioned was not at the time when, &o., the d welli ng-house a£,.t^ plainti ff, modo et fbi-ma ; upon which issue was joined. At the trial, which took place before Parke, B., at the summer assizes for the county of Denbigh, in 1845, that learned judge told the jury that they ought to find the issue for the defendant, if they •were satisfied by the evidence on the part of the defendant that at the said time when, &c., one Harriet Middleton was entitled to the po^ session of the dwelling-house, and the defendant had committed the alleged trespass under her authority. To this direction the counsel for the plaintiff tendered a bill of exceptions to the effect that the learned judge should have directed the jury t o_find for the plaint iff, if they were satisfied by the evidence that at the time when, &c., he was i n th e actua l possession of the dwelling-house. Upon the argu- ment before this court,-* on the 1st of December, 1847, Welsby appeared on behalf of the plaintiff; and Peacock, on behalf of the defendant.'' Cur. adv. vult. The coujt differing in opinion, their Lordships now delivered their judgments seriatim. WrLLiAMS, J., after stating the facts of the case, proceeded as fol- lows : In this case the general questio n is raised for our decision, as a court of error, wheth er under a traverse of the allegation in the declaration of trespass quare clausum fregit, that the close was the close of the plaintiff, the defendant is, or is not, at liberty to show titl e in himself or some other person, under whose authority he claims to have acted. I am of opinion that _be is. I have not formed this opin- ion without hesitation, because it is in direct opposition to the judg- ment of the Court of Queen's Bench, in Whittington v. Boxall ; ' but on consideration of that judgment, and of the authority and reasoning on which it is founded, it appears to me to have been wrongfully given. The question turns on the construction of the New Rules of pleading 1 Consisting of Wilde, C. J., Coleridge J., Coltman, J., Maule, J., Wigiitman, J., Erie, J., and V. Williams, J. 2 The authorities cited on either side fully appear in the several judgments of their Lordships. 3 5 Q. B. Kep. 139 ; s. c. 12 Law J. Kep. n. 8. Q. B. 318. 104 JONES V. CHAPMAN. [CHAP. III. of Hilary term, 4 Will. IV. Before those rules it had long been settled law that under the general issue of not guilty, in trespass quare clausum fregit, the defendant might give evidence of title in himself or in another by whose command he entered. The case of Argent v. Durrant^ shows conclusively the establishment of this doctrine, and also discloses the principle on which it was grounded, namely, that the evidence falsified the declaration of the plaintiff, inasmuch as it proved that the defendant did not break the plaintiff's close, as the declaration set forth. Thus it appears at the time the New Rules were made the general issue in trespass quare clausum fregit, by rea- son of its traversing the allegation in the declaration, that the close in which, &c., was the close of the plaintiff, operated as a denial, not only of his possession, but also of his right of possession as against a de- fendant lawfully entitled thereto. But by the rule of Hilary term, 4 Will. IV., in trespass, it is ordered, "that in actions of trespass quare clausum fregit, the plea of not guilty shall operate as a denial that the defendant committed the trespass alleged in the place men- tioned, but not as a denial of the plaintiff's possession or right of pos- session of that place, which, if intended to be denied, must be traversed specially." The alteration which this rule introduces appears to be this, that the defendant, if he intends to deny the plaintiff's posses- sion, or right of possession, must, instead of denying it as heretofore by the general issue, deny it by traversing it specially. It must be confessed that the language employed in this rule is not very happily chosen, for the expression, " a special traverse," usually b«ars a par- ticular technical sense, namely, that of a traverse containing an induce- ment and absque hoc, in which sense it is scarcely possible it could have been intended to have been used ; and I understand that the rule in this respect is merely in order to enable the defendant to dispute, if he is the wrong-doer, the possession, or, if he claims title, the right of possession, — the allegation in the declaration, that the close in which, &c., is the close of the plaintiff, must be denied specially by a particu- lar traverse, in contradistinction to being denied generally as hereto- fore, by the plea of not guilty. It is true that by the terms of the rule, taken literally, it is not this allegation of the plaintiff's posses- sion, or right to possession, which is to be traversed ; but it is a prin- ciple of pleading that the defendant cannot traverse any matter which is not alleged or necessarily implied in the declaration, and the pos- session, or right of possession, is only alleged or necessarily implied in a declaration in trespass quare clausum fregit, as being included in the allegation that the close in which, &c., is the close of the plaintiff » 8 Term Eep. 403. SECT. II. j OWEN V. KNIGHT. 105 If this be so, then the defendant in the present case, inasmuch as by the plea in question he has denied the plaintiff's allegation that the dwelling-house in which, &c., was his dwelling-house, must be consid- ered as specially traversii;g the plaintiff's right to possession thereof, and is theiefore within the meaning of the New Rules. He has put himself iu the same situation as that in which he would have been be- fore the New Rules, if he had tr.aversed it generally by pleading not guilty, and he is consequently at liberty to show title in himself or in another, under whose authority he acted. For these reasons, I am of opinion that the judge's direction at the trial was correct, and that our judgment on this writ of error ought to be for the defendant.' Greneral Issue and Spedfia Traverses — (^oontinued). (d) Trover OWEN V. KNIGHT. In the Common Pleas, November 13, 1837. [Reported in 4 Bingham's New Cases, 54.] The plaintiff declared in trover that he was possessed, as of his own property, of a certain indenture bearing date the 7th of November, 1830, between R. Sadler of the one part, and S. Feary of the other, by which Sadler demised to Feary a certain messuage therein described, and complained of the defendant having converted this deed to his 1 Wilde, C. J., Erie, J., and Coltman, J., delivered opinions substantially coincid- ing witli that of Williams, J. Maule, J., concuiTed with the majority in their con- clusion, thougli not in their reasoning. " I agree with the exception of the plaintiff in error that the question raised by the issue of not possessed is, whether the plain- tiff was in actual possession or not; but it seems to me that as soon as a person is entitled to possession and enters in the assertion of that possession, or, which is exactly the same thing, any other person enters by the command of that lawful „^owner so entitled to possession, the law immediately vests the actual possession in the person who so entered." Coleridge, J., and Wightman, J., delivered dissenting opinions, on the ground that the plea of not possessed put in issue only the actual possession of the plaintiff; Coleridge, J., taking the view that a defendant who wished to put in issue the plaintiff's right of possession, must resort to a distinct Bpecific traverse to that effect; while Wightman, J., thought that a defendant who relied on right of possession either in himself or some third person under whom he acted, should plead such right of possession by way of confession and avoidance The full opinions have been omitted on account of their length. — Ed. lOG OWEN V. KNIGHT. [CHAP. 111. The defendant plgaded, first, not guilty ; and, s econd ly, that the plaintiff was not, at the time when, &c., possesse d, as of his own prop- erty, of the indenture in the declaration mentioned. T^v-A-c-A^ \JU.'~^U^<" Upon -^vhich pleas -^ issue was joined. At the trial before Vaughan, J., it appeared that the defendant, in answer to a formal demand on the part of the plaintiff, refused to give up the deed, and one Feary, who was called as a witnes.s, prov ed that the d^d was delive red to the de fendan t, with the plaintiff 's assen t, to raise money for the discharge of a bill on which he and Feary were both liable. The learned judge- told the jury that, if Peary were believed, their verdict ought to be for the defendant. A verdict having been found for the defendant accordingly, Talfourd, Serjt., moved for a new trial, on the ground of misdi- rection. A rule nisi having been granted, JBompas, Serjt., and Godson, showed cause. They cited various authorities to show that in trover the plea of not guilty puts in issue the property of the plaintiff, as well as the conver- sion by the defendant ; but upon this point the court abstained from pronouncing any opinion. On the second plea, they contended that the defendant was entitled to retain his verdict ; for admitting the property in the deed to be in the plaintiff, he was not possessed of it, or entitled to the possession of it, at the time of the action ; and to maintain trover he must show a right to the possession as well as the property. But after having authorized Feary to assign the deed to the defend- ant as a security for money advanced, he could have no claim to the possession till that money was repaid. Talfourd and It. V. Richards, in support of the rule, contended that the defendant, having refused absolutely to deliver the lease, and not conditionally, till payment of the sum due to him, had been guilty of a w^rongful conversion within the terms of the first issue ; and that the plaintiff being possessed of the house to which the deed related, was, in point of law, possessed of the deed as of his own property under the terms of the second issue. TiNDAL, C. J. It is unnecessary for us to give any opinion as to*~ what was matter of proof under the first issue, because the question here turns on the second issue only. This is an action of trover for the conversion of a lease, and the declaration, according to the usnal form pursued in actions of trover, alleges that the plaintiff was lawfully possessed of the deed as of his own property. 1 A portion of the case relating to a third plea haa been omitted. — Ed. SECT. II.] OWEN V. KNIGHT. 107 The defendant joins issue on that precise proposition: the question therefore is, whfther on that issue so raised tlie facta proved will give the verdict to the plaintiff or to the defendant. The action of trove r only lies where th e pinintiff has tli e r'ig-ht to possession , as well as a l egal property in the subject of the suit. That was established by the case of Gordon v. Harper,^ which decided that where goods, leased as furniture with a house, had been wrongfully taken in execution by the sheriff, the landlord could not maintain trover against the sheriff pend- ing the lease, because, to maintain such an action, he must have the right of possession as well as the right of property at the time. The plaintiff here was originally entitled to the possession, and had a legal property in the deed in question ; but it was afterwards de- livered to the defendant, with the plaintiff's assent, to raise money for the discharge of a bill on which he and Feary were both liable. The parties therefore stand in this position, that the plaintiff is en- titled to the property in this deed, but entitled to the possession only when the money advanced by the defendant has been repaid. The de- fendant is entitled to hold possession till he has been repaid. On the second issue, the verdict for the defendant cannot be impeached. Vaughan, J. The deed is in the defendant's hands, with the plain- tiff's assent, upon an advance of money by the defendant; and the plaintiff is not entitled to the possession till the money has been re- paid. The defendant had a right to set up his lien, and that shows that the plaintiff is not entitled to possession. The cases of White v. Gainer '^ and Boardman v. SilP show that the defendant does not waive his lien, because he omits to mention it. BosANQUBT, J. I agree that the defendant is entitled to retain the verdict on the second issue. There is an express traverse of the plain- tiff's possession, and the facts show that the deed was deposited with the defendant by the authority of the plaintiff, on a condition which has not been observed. CoLTMAN, J. I think that under the second issue the right to pos- session is raised as distinct from the right to property ; and that the verdict for the defendant, on that point, ought not to be disturbed. Hule discharged.* ' 7 T. E. 9. ^2 Bing. 23. ' 1 Campb. 410, n. * Leake v. Loveday, 4 M. & G. 972 ; Isaac v. Belcher, 5 M. & W. 139 ; NicolU v. Bastard, 2 C, M. & E. 659; Gregg v. WeUs, 10 A. &E. 90; Chase v. Goble, 2 M. & G. 980 ; Webb v. Tripp, 1 Dowl. n. 8. 589 ; Eingham v. Clements, 12 Q. B. 260, accord. — £d. 108 WHITE V. TEALE. FCHAP. 111. WHITE V. TEALE. ^ In the Queen's Bench, June 11, 1840. [Reported in 9 Law Journal Reports, Queen's Bench, 377.] 99 Tboyeb for wearing apparel and other goods. Flea , not guilty. ^" At the trial, before I-ord Denman, C. J., at the London sittings after Trinity term, 1838, it appeared that in December, 1837, the defend ant 1^ lodgings to^ the plain tiff in the Strand, which he occupied until the ' 17th of January following, when he_left for Bath, leaving some rent ' unpa id, and also some boxes, contai ning wearin g a ppare l and other things, which he gave into the custody of the defendant. A dispute subsequently arose as to whether the rent was £2 per week or £2 5s. A tender at the rate of £2 per week was proved, and a demand of the goods, which the defendant refused to give up, saying, that he claimed a larger sum, and that he must have the plaintiff's authority. He also said that he should sell the things. A written authority from the plaintiff to deliver them up was afterwards sent to the defendant, but he still refused to restore them. For the defendant, his servant proved that, the day before the plaintiff left to go to Bath, he said to the de- fendant, " Now, Mr. Teale, I leave these boxes in your care till such time as I pay the rent." The Lord Chief Justice being of opinion that this evidence ought not to be admitted under the plea of not guilty, directed a verdict to be entered for the plaintiff, giving the defendant leave to move to enter a verdict for him. A rule having been obtained accordingly, ££lly and Bagley showed cause, in last Easter term, and contended that, upon the plain terms of the New Rules, the evidence was not ad- missible under the plea of not guilty ; by which plea the title >of the plaintiff, which consists of property in the goods, and a right of pos- session at the time of bringing the action, is admitted : that the con- version was the only thing in issue ; and that any contravention of the plaintiff's titlg^,-by- a-iien or otherwise, could- only be questioned by traversing the plaintiff's possession, as alleged in the declaration : that no case had decided that a lien, which was a temporary denial of the title of the plaintiff, could be given in evidence under not guilty ; though in Stancliffe v. Hardwick,^ the Court of Exchequer cautiously abstained from saying that it might not. They cited Isaac «. Belcher,^ Barton v. Brown,^ Samuel «. Duke,* Frankum v. Lord Falmouth, Owen v. Knight, 1 2 Cr., M & R. 1. 2 5 Mee. & Wels. 139. » 5 Mee & Wels. 298 * 8 Mee. & Wels. 622. SECT. II.] WHITE V. TEALE. 109 Scarfe u. Morgan,* Vernon v. Shipton,^ Davies v. Nicholfis,' Weedon y. Aldridge.* Many of the above cases we.i-e also cited upon the point of what was a sufficient conversion to enable the plaintiflPto recover under not guilty; but the judgment proceeded entirely upon the inadmissi- bility of evidence to show a lien, where the only plea was the general issue. Upon the point as to the conversion, Littledale, J., i-eferred to Stransham's Case.' JPlatt, contra, contended that although an actual conversion, as by sale or detention of the goods upon demand, after satisfying the full rent, might not be admissible under the plea of not guilty, yet that the defendant was not precluded from showing a very different state of things, namely, that the goods were in his possession by the consent of the plaintiff himself, until he should do a certain act, which he had not done ; that the case of Owen v. Knight did not decide that such a defence might not be shown under the general issue, although it was equally admissible under a plea denying the right of possession of the plaintiff. Weedon v. Aldridge is in favor of the defendant. [Patteson, J. It seems that Stransham's Case, from Cro. Eliz., was not cited there : that case shows that conversion ex vi termini means a wrongful conversion. Lord Denman, C. J., referred to Dee v. Bacon. °] In all the cases cited the conversion was a wrongful one ; but this is distinguishable from them upon that ground. He cited Allen v. Har- ris,' Hartford v. Jones,* Williams v. Gesse.' Cur. adv. vult. The judgment of the court was now delivered by LoED Dbnman, C. J. This was an action of trover for a box of clothes; plea, not guilty. At the trial, after the plaintiff had given evidence of a demand and refusal, the defendant offered to prove that the goods were placed in his hands by the plaintiff, to be kept till pay- ment of certain rent, which, it was said, never had been paid. I refused to allow that evidence, thinking it inadmissible under the plea of not guilty. A rule for a new trial, upon the rejection of the evi- dence, has been fully argued and considered, and the court are of opinion that the evidence was not admissible. That plea , by the New Kules, denies only the conversion, and t<'^'^;t° tlioTrrio 'Sinw that title consists of the right of property, and the right of possession at the time of the alleged conversion. Gordon v. Harper." But a lien is inconsistent with, and negatives, the plaintiff's right to possession. If, therefore, proof of that were admitted under the plea of not guilty, the defendant would be allowed to give in evidence at the trial a nega- 1 4 Mee. & WeU. 268 ^ 2 Mee. & Wels. 9. ' 7 Car. & Pay. 839. 4 1 Per. & Dav. 657. ' Cro. Eliz. 98. « Cro. Eliz. 435. 7 2 Lutw. 1537. 8 2 Salk. 654. » 3 Bing. N. C. 849. w 7 Term Kep. 9. no RICHARDS V. FRANKUM. [CHAP. III. tion of that matter which he- has, by his plea, admitted on the record He ought to have traversed that the plaintiff was possessed , as of bia o wn propert y, in manner and form as alleged in the declaration, by which he would have put in issue the plaintiff's right of possession , as was held in Owen v. Knight, and would have been entitled to prove the lien, in order to negative that issue. The case of Stanoliffe v. Hard wick was cited, where the Court of Exchequer, in giving judg- ment, guarded itself against being supposed to decide that a lien might not be given in evidence under a plea of not guilty, to answer a demand and refusal proved by the plaintiff as evidence of a conver- sion. The court did not there decide that a lien might be given in evidence under the plea of not guilty, but used the expression alluded to solely for the purpose of leaving that question entirely open. Some matters were spoken, of in the course of the argument, which it is not necessary to advert to under this view of the case, and the rule must be discharged. Mule discharged} Q-eneral Issue and Specific Traverses — (^continued). (e) Detinue. RICHARDS V. FRANKUM. In the Excheqtjee, Eastbe Tebm, 1840. [Reported in 6 Meeson Sf Welsby, 420.] . This was an action of d etinue for a promissory note. The defend- ant pleade d. £igt, non detine t ; sepppdly , that the plaintiff was not possessed of the note ; third ly, that before the commencement of the suit, the plaintiff, for a good and valuable consideration, assigned and delivered the said promissory note to one John Granger, to be by him f held as and for his own note ; and that the said John Granger, before , the commencement of this suit, delivered the said note to the de- '■ fendant, to be by him held for and on the behalf and for the use and p benefit of the said John Granger ; and that the defendant, as the ser- o vant and by the command of the said John Granger, detained and still detains the said promissory note, as he lawfully might for the causes aforesaid. , The replication traversed the assignment and delivery of the note by the plaintiff to Granger, and the delivery by him to the defendant 1 Barton ». Brown, 5 M. & W. 298 ; Jones v. Davies. 6 Ex. 663, accord. — Ed. SECT. Il.J lUCHAUDS V. FRANKUM. Ill At the trial before Gurney, B., at the last assizes for the county of Oxford, the jury found a verdict for the defendant on the second and third issues; the learned judge giving the defendant leave to move to enter a verdict on the issue pn the plea of non detinet also, if the court should be of opinion that the matters of defence so found in his favor were evidence in support of that issue. Ludlow, Serjt., now moved accordingly. The jury, by finding ou the second and third issues for the defendant, have found that the promissory note was not the property of the plaintiff, and so estab- lished the 2>lea of non detinet, which puts in issue the wrongful hold- ing and detaining of the note by the defendant. It is evident from the use of the words, "which he unjustly detains," in the original Vi'it and declaration, that the unjust detention is the gravamen of the "> complain t, and t hat is therefore put in issue by t he plea oi non detinet . * Qotwithstanding the JMew Kules. Whatever may be the effect of the New Rules as to pleading specially matter of excuse, the unjust de- tentioii is the gravamen of the charge in the declaration ; and as that is a material allegation in it, and is traversed by the plea, and the finding of the jury on the other issues establishes that there was no unjust detention, the verdict ought therefore to be entered for the defendant. LoED Abingee, C. B. There is no ground whatever for this mo- tion. It is true that a party who brings an action of detinue brings it for the unjust detention of his property; but where the detention is justified, the matter must be set out on the record. The onlv issue on \ non deti net is upon the fact of the detainer. If the p arty has a lawful excuse f or the detainer, he must plead it. Paeke, B. There is no ground for this application. Under the plea of non detinet a defendant might, at common law, prove that the goods were not the property of the plaintiff; but if he had a law- ful excuse for the detention, as if the goods were pawned or pledged to him for money which was not repaid, he was bound to plead it. Co. Lit. 283 a. Lord Coke there says, " In detinue, the defendant pleadeth non detinet ; he cannot give in evidence that the goods were pawned to him for money, and that he is not paid, but he must plead it ; but he may give in evidence a gift from the plaintiff, for that |irc vet h that he detaiueth not the plaintiff's goods." But it is per- fectly clear that, since the New Rul es, t he defendant cannot give i n I evidence , u nder the nlea of non detinet, t hat the goods were not the I property of the plaintiff: so that, in any view of the case, the mattersii' proved in support of the second and third pleas were not evidenceM under the first. If the object be to show that the chattel is not the property of the plaintiff, that cannot be done under such a plea since 112 LANE V. TEWSON, [CHAP. Ill, the New Rules. If the object be to show that the detention was law- ful, and the party had a good excuse for detaining the property, then, according to the authority of Lord Coke, such a defence ought to be pleaded, even at common law. Under the plea of non detinet, the fact of detention is alone in issue. Aldbeson, B. In an action of trover, the plea of not guilty puts in issue the mere fact of the conversion, and so under the issue of non detitiet t he fact of the detention is alone in issue . ~EoLFB, B., concurred. Mule refused. '■k LANE V. TEWSON. In the Queen's Bench, Novembee 10, 1841. [Reported in 1 Gale ^ Davison, 584.] Detinue of goods. Flea, that the said goods , &c., were not the goods of the plaintifif. At the trial before Parke, B., at the last assizes for the county of Lincoln, the defendant conten ded that he had a lien_ upon the subject of the action for his char ges a_s an auction eer. It was objected, on the part of the plaintiff, that this defence was not admissible un- der the plea. The learned Baron reserved leave to the plaintiff to move to enter a verdict for him on this objection, if the opinion of the jury should be adverse upon the question, which he left to them, of the fact of the lien. The jury having found a verdict for the defendant, Balguy * now moved to enter a verdict for the plaintiff, pursuant to leave reserved. He cited Richards v. Frankum as an authority that in detinue a lien must be specially pleaded. Cur. adv. vult. LoED Denman, C. J., now delivered judgment. The question in .this case was, w hether in detinu e, under a plea denying that the goods ere the p lnir*'''^'"! a lien could be set up. We think that the learned judge ruled rightly that it might. A similar point has been already decided in an action of trover. Mule refused.^ i On Friday, NoTember 5, before Lord Denman, C. J., Williams, Coleridge, and Wightman, JJ. 2 Mason v. Farnell, 12 M. & W. 674, contra. But see Dirks v. Richards, 4 M. & Q 574; Barne wall u. Williams, 7 M. & G. 403. — Ed. SECT. II.] DOVER V. EAWLINGS. 113 G-eneral Issue and Specific Traverses — (continued'). (/) Replevin. HILL V. WRIGHT. At Nisi Peius, coeam Bullee, J., Jult 15, 1798. [Reported in 2 Espinasse, 669.] This was an action of replevin. The defendant, by his avowr y, stated that the plaintiff held ot him certain p remis es, the rent whereof was reserved quarterly, and t hen avowed for a q uarte r's rent in arrear to C hristma s. 1797. Plea jn bar to the avowry. N o rent in arrea r. The counsel for the plaintiff stated his case to be, that he held under a lease from the defendant's father, under whom the defendant claimed ; which lease he had ready to produce, but in which the rent was re- served half yearly, and not quarterly, as the defendant had avowed. Bullee, J. The plaintiff cannot go into that evidence on these pleadings. Shepherd, Serjt., contended that it could. That the issue was, that there was no rent in arrear on the day stated in the avowry. No rent was by law due till the days on which it was reserved and made payable ; and, by the lease, those days were Michaelmas and Lady-day ; so that no rent was in arrear at Christmas, on which day the defend- ant avowed, no rent being then due or payable. Bullee, J. Miens en ar rere admits the title of the defendant as state d in the avowr y. The holding, therefore, must be taken to be a holding reserving the rent quarterly. The plaintiff might have, by his plea in bar, denied the holding. He has not done so, but chosen to take issue only on no rent being in arrear at Christmas, 1797. Unless, therefore, he can show that he has paid the rent up to that time, the defendant must have a verdict. The plaintiff having no evidence to that effect, the defendant had a verdict. DOVER V. RAWLINGS. At Nisi Peius, coeam Tindal, C. J., Febeuaet 15, 1844. [Reported in 2 Moody ^ Robinson, 544.] Rbplevin. Plea, non cepit, and issue thereon. The plaintiff proved a seizure of the goods by the defendant, bu» 8 Hi FRANKUM V. EARL OF FALMOUTH. [OHAP. III. failed in jsroving any property in them, or that at the time of the seizure they were in his (the plaintiff's) possession. Channell, Serjt., objected that upon the issue joined it was neces- sary for the plaintiff to show himself in possession of the goods. The New Rules had introduced no alteration in the pleadings in replevin, and before those rules non cepit put the property in issue. TiNDAL, C. J. I agree that the New Rules do not apply to this form of action; but I find that in Comyns's Digest a plea is given expressly denying the property, and I think that the plea of non cepit would not, according to the old course of pleading, put the plaintiff on proof of the possession.^ The plaintiff accordingly had a verdict. NV^ G-eneral Issue and Specific Traverses — (continued). FRANKUM V. THE EARL OP FALMOUTH and Anothbb. In the King's Bench, Janitabt 14, 1835. \Reported in 2 Adolphus 4~ Ellis, 452.] Case. The declaration alleged that whereas the plaintiff, at, &t 1 1 ■ '• WATKINS V. LEE. In the Exchequer, Teinitt Teem, 1839. [Reported in 5 Meeson Sf Welsby, 270.] Case for a malicious arrest . Plea, n ot guilty. ^ ^'^^'^^MjU.c^rwbC^M. The declaration averred that the d efend ant did not prosecute hig. suit, but voluntarily suffe red the same to^ be^ discontinued for want of prosecu tion there of, and thereupon it was considered by the court that the defendant should take nothing by his writ. To prove this allegation, the plaintiff, at the trial, prove d a rule to discontinue, and that the defend ant ha d paid the cost s oi_ th_e d iscon- t inuan ce. Jervis objected that this did not prove the judgment of discontinuance, upon which Parke, B., allowed the plaintiff to amend, and saved the point whether a rule to discontinue on payment of costs J Wright V. Lainson, 2 M. & W. 789, accord. See Harden v. Standish, 6 C. B 504. — Ed. 124 WATKINS V. LEE. [CHAP. Ut. was a sufBcient termination of this suit to enable the plaintiff to sue for a malicious arrest. Jervis now moved for a nonsuit on the point reserved. No action for a malicious arrest can be maintained until the prior suit is finally terminated. For this purpose a rule to discontinue is not enough, even though acted upon by payment of costs. In Bristow v. Hey- wood,' it was decided to be sufficient, but the case went off upon another point, and no opportunity was afforded of reviewing that de- cision. In Brandt v. Peacock,^ the point arose immediately, but there was there a judgment of discontinuance, and if the rule had there been deemed to be sufficient, much discussion would have been saved. In Fanshaw v. Heard," it was decided that the first action must be legally determined, and in Drummond v. Pigou,'' Gaselee, J., said, that a rule for a discontinuance is not evidence to show that the action has been discontinued; there must be a judgment of discontinuance. If this would do, a rule for judgment as in case of a nonsuit would have the like effect. [Loed Abingbe, C. B. How does the question arise upon this record ?] In Drummond v. Pigou that point was raised, but not decided. In truth, it is a doubtful question upon the construction of the late rules. The plea of not ^uiltv operates as a denial of th e I wrongful act, b ut not of the fact s i^jtated in t.ViP inrlnpprnpnt.. R. G., H. 4, vV. 41 The termination of the suit is not inducement, but material to the maintenance of the action. The want of it would be cured by ver- dict, because it would be presumed to have been proved at the trial." L®E» Abinsbr, C. t. As the action cannot be maintained until the former suit is terminated, the discontinuance is a material allega - tion, which the defendant should have denied ; not having done so, he admits the discontinuance. The plea of not g uilty puts i n issue merely the malicious arrest without probable cause. Aldbrson, B. I'he meaning of the rule is, that the wrongful act only is p.ut in issue. Mule refused.^ 1 4 Camp. 214 ; 1 Stark. N. P. 48. " 1 B. & Cr. 649 ; 3 D. & R. 2. • 8 1 M. & P. 191. 4 2 Bing. N. 0. 114; 4 M. & Scott, 23'! 6 1 Wms. Saund. 228. 8 Drummond v. Pigou, 2 B. N. C. 114 ; Atkinson v. Raleigh, 3 Q. B. 79 ; Ha* drick V. Heslop, 12 Q. B. 267, aecard. — Ed. SECT; 11.] TAVEENOUR V. LITTLE. 125 TAVERNOUR v. LITTLE, In the Common Pleas, June 11, 1839. [Reported in 3 Jurist, 702.'] Case. The declaration stated that the plaintiff, on, &c., was possessed of a horse of the value of £30, on which a servant of the plaintiff was riding along a certain common highway, and that the defend an t was pos- sessed of a_certain cart, and of a certain horse drawing the same, which said cart was then and there u nder th e car e, government, and direction of the defendant, who was then and there driving the samp, al ong the said common mgnway, yet the defendant so carelessly and negligently drove the said cart, that, through the misconduct and negligence of the de- fendant, the cart ran and struck against the horse of the plaintiff and injured it, &c. Plea, not guilty . Ux£^ to'^S^:^^^*'*---*^ -^^ ^''~~i^ At the trial before Bosanquet, J., injury to the plaintiff's horse ^ having been proved, evidence was offered on the part of the defendant J, to show that he was not the person driving the cart at the time of the "^ accident, but that he had lent his cart to a person of the name of Jenkins ; but the defendant's name was on the cart, and it was not disputed that he was the owner. The learned judge was of opinion that the defendant could not, under the plea of not guilty, give evi- dence that the defendant was not the person driving; and the plain- tiff obtained a verdict. Mobinson having obtained a rule nisi for a nonsuit, or for a new trial, on the authority of Bennion v. Davison,^ Wilde, Serjt., and Andrews, Seijt., showed cause. Bennion v. Davison was an action of assumpsit, to which form of action a particular rule applies. Here the declaration-complains of a particular act as unlaw- ful ; and when the act might have been done innocently, the plea of not guilty only puts in issue whether it was done in a wrongful manner. The rule in case is express, that " the plea of not guilty shall operate as a denial of the breach of duty or wrongful act complained of, and not of the facts stated in the inducement ; and no other defence than such denial shall be admissible under that plea." All the instances given in the rules carry out this principle. So in Stancliffe v. Hardwick,* the defendant in trover was not allowed, under the plea of not guilty, to show the legality of the conversion ; so in an action for an escape, it is submitted that the having the party in custody could not be disputed under not guilty ; so the possession of the carriage cannot be disputed 1 g. c. 5 B. N. C. 678. 2 3 M. & W. 179. '' 2 C, M. & R. 10 126 TAVEBNOUB V. LITTLE. [CHAP. III. ill this case. If a constructive liability is to be made out, ■which was, in fact, the case in this very action, the use of the rule is to prevent the necessity of calling witnesses to prove the ownership. See Francuni v. Lord Falmouth. In Wheatley v. Patrick,^ it was held that a defend- ant was liable to such an action as the present, though he was not the person driving at the time of the injury. So in Woolf v. Beard ^ and Bush y. Steinman.' Dawson w. Moore * cannot be considered as a decisive authority the other way. So in Thomas v. Morgan, the scienter, which was held to be put in issue, was that which gave an injurious character to the defendant's conduct. In this case two issues are raised : first, de- fendant's driving; secondly, the injury complained of: the traverse of one is an admission of the other. Mobinson, contra. It is not disputed that on the occasion in ques- tion the defendant had lent his cart. The question put to the jury was, whether the mischief was occasioned by the negligence of the plaintiff or of the defendant. [Bosanquet, J. I certainly told the jury that, if the defendant lent his cart with his name upon it to another, he was under the circumstances liable. Stables u. Eley.^] In Stables v. Eley, the only question was, whether the defendant continued liable as a part- ner; the declaration was there framed on a different principle from th( present. There is no reason or principle of law why the name being oi the cart should make any difference. The cases on that subject are Sam mel V. Wright ^ and Dean v. Branthwaite,'' but they turned on the circum stance of a loan on hire. The real point of the case turns on the decision in Bennion v. Davison. Here the wrongful act is the negligent driving; it is neither the negligence alone nor the driving alone, but compounded of both, just as in Cotton v. Brown, where the plea of not guilty was held to let in the denial of want of probable cause. Suppose there had been no inducement, and, in fact, the inducement is unnecessary, and might have been omitted altogether, could not the defendant hav« shown that that stranger had done the act? Or suppose the plaintifl had gone on further to allege in the inducement that the defendant was driving negligently. The plea of not guilty denies every thing except matter which cannot be treated as part of the wrongful act Wheatley v. Patrick and Bush v. Steinman are in the defendant's favor as there the question turned on the liability of the defendants only The very instance given in the rules with respect to nuisance supports the defendant's view of the case. That rule lays down that not guilty shall operate as a denial that the defendant carried on the alleged trade 1 2 M. & W. 650. 2 8 C. & P. 873. » 1 B. & P. 4(>- < 7 C. & P. 26. 5 1 C. & P. 714. 6 5 Esp. 268. ' 5 Esp. 35. SECT. n.J TAVERNOUR V. LITTLE. 127 in such a way as to be a nuisance. The matters of inducement relate to the plaintiff's right of action. Cur. adv. vult. The judgment of the court was on a subsequent day delivered by TiNDAL, C. J. This was a question on the New Rules. The deolara^ tion contained averments of the possession of the horse by the plain- tiff, and of the cart by the defendant; and after the usual recital comes the allegation of careless driving by the defendant. The question is, whether under the plea of not guilty the defendant might prove that he had lent the cart to a third person ; and we are of opinion that, as well by a proper construction of the New Rules as by the analogy of de- cided cases, the evidence was inadmissible. The rule, Hil. 4 Will. IV., is, that "in actions on the case the plea of not guilty shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the induce- ment." Here, in the first part of the declaration, are contained the allegations of the plaintiff's possession and the defendant's possession. These statements form together the inducement in the declaration, and by the express words of the rule the plea shall not operate as a denial of either. The rule then goes on : " And no other defence than such denial shall be admissible under that plea." The denial, then, of the fact of driving is no less excluded by the negative words of the latter part of the rule, than b} the affirmative words of the former part. It has been argued that these words in the rule must be confined to those words in the declaration which relate to the plaintiff; but the example of the carrier given in the rule itself is against that construction. Bennion v. Davison may be put out of the case. That was an action of assumpsit ; and it is sufiicient to say that then the ownership was immaterial; but Wright v. Lainson^ and Lewis v. Alcock are strongly in favor of our present construction. In the first of those cases it was held that in an action on the case against a sheriff for a false return of nulla bona to a writ of _^. fa., where the declaration stated that the sheriff had levied, the plea of not guilty puts in issue only the fact of the sheriff's not having the money in his hands and making the alleged return ; and in the latter case it was decided that the sheriff could not, under that plea, show that there were no goods of the debtor's which he could have levied. It is further contended that the inducement of the defendant's driving is wholly unnecessary, and that it would have been sufficient for the plaintiff to have alleged that the defendant wrongfully, &c., drove the cart against the plaintiff's horse. To this it is a sufficient answer to say that the plaintiff has pursued the usual 1 2 M. & W. 739. 128 NORTON V. SCHOLEFIELD. [CHAP. III. course of pleading, and that the rule must be taken to refer to matters which are usually stated by way of inducement. A similar argument was used in the case of Lewis v. Alcock, and was in that case met by the remarks of Parke, B., and Alderson, B. Hule discharged.^ NORTON V. SCHOLEFIELD. In the Exchequer, Apkil 19, 1842. [Reported in 9 Meeson ^ Welsby, .665.] Case for an injury to the plaintiff's reversionary interest. The de- claration alleged that, before and at the time of committing the grievance, &c., the premises were in the possession of one A., as ten- ant thereof to the plaintiff, the reversion thereof expectant on the determination of the said tenancy belonging to the plaintiff. It then stated the right of the plaintiff and his tenants to a certain well and pump; that the defenda nt was possessed of p remis es a djoining the p remises of the plaintiff, and that he, intending to injure the plaintiff, &c., erected a ces spool so near the well ajid pum p that the water was co ntaminated and rendered useless by the oozing out of_th^sqil and filth from the cesspoo l. The defendant had applied to Lord Denman, C. J., at chambers, for leave to plead the following pleas : first, not guilty ; secon dly, a traverse of the right of the plaintiff and hi8"tenants t o the use of the well and pump ; t hird ly, a traverse of the p laintiff's r eversionary interest in the premises ^ and, lastly , a special plea, deny- y ing that the water in the well had been contaminated by the erection T i of the cesspooJ . Lord Denman, C. J., refused to allow the last plea, 'i' on the ground that the subject-matter of that defence might be given in evidence under the plea of not guilty. Waddington now applied to the court for leave to plead the above four pleas, and submitted that the plea of not guilty put in issue only the fact of the erection of the cesspool. Paeke, B. I think the Lord Chief Justice was right in disallowing the last plea ; not guilty puts in issue both the act complained of and » Emery v. Clark, 2 M. & Rob. 260 ; Hart v. Crowley, 12 A. & B. 378 ; Dunford v Trattles, 12 M. & W. 529 ; Woolf v. Beard 8 C. & P. 373 ; Wheatley u. Patrick, 2 M. & W. 650, accord; Dawson b. Moore, 7 C. & P. 25, centra. Conf. Mitchell v. Crass- weller, 13 C. B. 237 ; Bennion .,. Davison, 3 M. & "W. 179 ; Grew v. Hill, 3 Ex. 801, — Ed. SECT. II.J NORTON V. SCHOLEFIELD. 129 its consequences. In actions for negligence, a defendant is never allowed to plead that the injury was caused by the plaintiff's own negligence. Aldeeson, B. By t he general issu e the defendant say s, " T am not guilty of erecting a building which is a nuisance. " RoLFE, B., concurred. Motion refused?- i Wilby V. Elston, 8 C. B. 442 ; Eastwood v. Jbain, 3 H. & N. 738 ; Williams v. Mostyn, 4 M. & W. 146; Wylie v. Birch, 4 Q. B. 566; Bales v. Wingfleld, 4 Q. B- 580, accord. — £o. 13U THORN V. SHERING. [CHAP. III. SECTION III, Special Traverses. HUISH V. PHILIPS. Ik the CoMMOiT Pleas, Eastbb Teem, 1600. [Reported in Crake's Elizabeth, 764.] Audita querela. And shows that he was obliged in a statute-mer- chant of £600 to the defendant, to the use of one John Bush ; and that a defeasance was made thereupon, that if he paid such sums at such days to John Bush, that the statute should be void ; and shows that at every of the days and plaf^s he was paratus to pay the said sums, et obtulit them, and the said John Bush was not there to receive them. The defendant pleaded that at such a day John Bush was at the place where, &c., and demanded the sum, and neither the plam- tiff nor any for him were there for to pay it, absque hoc that the plaintiff obtulit the said sum at the said day, &c. And thereupon the plaintiff demurred^ \^Jl It was held that tn^|raverse was not good; for there oeing an "express aifirmative before, quod paratus Juit, et obtulit, &o., and non obtulit being an express negative, there shall not be any travei'se ; for when a vri^ltp.r is eYpresjuly pleaded in the affirmative, w hiQh is ex- pressly pleaded by the other party in the negative, there \^averse_ THORN V. SHERING. In the King's Bench, Teinitt Teem, 1640. [Reported in Crake's Charles, 586.] Trespass de clauso fracto. The defendant justifies his entry by the command of J. S. The plaintiff replies, and shows that J. S. was ' Only so much of the case is given as relates to the special traverse. — Ed. « Y. B. 36 Hen. VI. fol. 15, pi. 9 ; Finley v. Woodruff, 8 Ark. 328 ; Day » Essej Bank, 13 Vt. 97, accord. — Ed. SECT. Ill .J BENNET V. FILKINS, J 31 seised in fee and let to him at will, and traverseth the command ol J. S. The defendant maintains that J. S. commanded him to enter, and -that he entered by his command, and traverseth the lease at will: and hereupon it being demurred, it was adjudged for the plaintiff .that the command was traversable, and that the defendant's rejoinder to make a traverse upon a traverse, as this case is, was not good. Wherefore judgment was given for the plaintiff. In Easter term, 38 Eliz., in Parker's Case, adjudged that the command is traversable ' BENNET V. FILKINS. In thb King's Bench, Michaelmas Teem, 1666. [Repmled in 1 Saunders, 20.] Debt. The plaintiff declares upon a bond for £200 entered into Dy the defendant to the plaintiff by the name of John Bennet, esquire, bailiff of the liberty of the dean and chapter of the collegiate church of St. Peter, "Westminster, dated the 6th of February, in the seventeenth year of the now king. The defendant prays oyer of the condition, which is, that if one Kingwell appeared before the king at Westmin- ster, on Saturday next after the octave of the Purification of the Blessed Mary, to answer to Sir William Bolton, knight, and James Bradshawe, of a plea of trespass, and also to a bill, &c., for £90, then the bond shall be void, &c. To which the defendant pleads the statute of 23 H. VI. c. 10, of sheriff's bonds ; and further says, that the plaintiff was bailiff of the liberty aforesaid, and before the bond was taken, viz., in Hilary term in the sixteenth -and seventeenth years of the now king, Bolton and Bradshawe sued out a bill of Middlesex against Kingwell, returnable on Friday next after the octave of the Purifica- tion ; and the sheriff thereupon made a warrant to the plaintiff, then bailiff of the liberty according to the bill of Middlesex, by force whereof the plaintiff arrested Kingwell, and had and detained him in his custody for the cause aforesaid ; and Kingwell being in his custody, the defendant, together with one Inch and Kingwell, entered into the said bond and condition for ease and favor to be shown to Kingwell of his said imprisonment, and for having his deliverance from thence, which bond the plaintiff accepted by color of his office, and against the form of the statute ; and so the defendant says that the bond 1 Anon., 3 Salk. 363 ; Chichesly v. Ely, Cro. Car. 105 ; Harrington v. Litchfield 4 B. N. C. 77 ; Gerrish v. Train, 3 Pick 124 ; Prosser v. Woodward, 21 Wend. 205, accord. — Ed. 132 BENNBT V. FILKINS. [CHAl'. Ill taken in form afoi-esaid, by force of the statute, 'waa void and of no effect ; and prays judgment if he ought to be charged by this bond. The plaintiff replies, that Bolton and Bradshawe in the same Hilary term sued out a bill of Middlesex against Kingwell, returnable on Saturday next after the octave of the Purification, according to the condition of the bond, upon which the sheriff made his warrant ac- cordingly to the plaintiff (being bailiff), by virtue whereof the plaintiff took Kingwell ; and the plaintiff further says that Kingwell, at the time of making the bond, was in prison under the custody of the plaintiff, then bailiff of the liberty by virtue of that warrant, and not by virtue of the warrant specified in the plea of the defendant. And this, &c. Wherefore, &c. The defendant rejoins as before, that Kingwell, at the time of making the said bond, was in prison under the custody of the plaintiff, by virtue of the said warrant specified in the plea of the defendant ; without this, that Kingwell was in prison under the custody of the plaintiff, by virtue of the warrant in the replication of the plaintiff above mentioned, as the plaintiff has alleged. And this, &o. Wherefore, &c. To which rejoinder the plaintiff demurs in law specially, because the defendant has taken a traverse upon a traverse. And it was argued by Wilde, Seijt., on the part of the plaintifij that the defender's rejoinder was bad, because the defendant has taken a traverse after a traverse : for the plaintiff has replied that Kingwell was in custody by virtue of the warrant, returnable on Saturday next after the octave of the Purification, which was the right one according to the condition of the bond, and not by virtue of the warrant re- turnable on Friday next after the octave of the Purification, as the defendant has pleaded. And this was a traverse upon which the defendant ought to take issue, and not to traverse over as he hath done here. And he put several cases where there shall be no traverse after a traverse taken before by the other side, as 27 H. VIII., fo. 3 a, and Digby and Fitzherbert's Case, Hob. 103 ; and here, he said, the plaintiff in his replication has traversed the warrant returnable on Friday, and therefore the defendant in his rejoinder cannot traverse the warrant returnable on the Saturday ; and so he concluded that the rejoinder is bad. Saunders, for the defendant, argued that the rejoinder was good. And, first, he denied that the plaintiff hath made any traverse in his replication, for the plaintiff only says that the said Kingwell was in prison by virtue of the warrant returnable on Saturday, and not by virtue of the warrant returnable on Friday, which was no traverse, but a flat negative, and the plaintiff has relied upon the precedent affir- mative matter, and has not traversed at all. For the proper words of SECT. III.] BENNET V. PILKINS. 133 a traverse are " without this," which are not in the plaintiff's replica- tion, and therefore he has not taken any traverse. But the court did not pay much regard to this. Then he argued that the traverse in the defendant's rejoinder was good, notwithstanding the plaintiff has taken a traverse in his replication. And he agreed to the rule that a traverse ought not to be taken after a traverse ; but he took the differ- ence to be, where the first traverse is good, and taken to a material point, and goes to the substance, then there shall be no other trav- erse taken after; but where the first traverse is idle, and not well taken, nor pertinent to the matter, but is of that which was sufli- ciently confessed and avoided before, there the other party may take another traverse after such immaterial traverse taken before ; and for this he relied upon the above-cited case of Digby and Fitzherbert. Then here the defendant has pleaded that Kiugwell was in prison by virtue of the warrant returnable on Friday, and therefore the condi- tion of the bond, not being pursuant to the return of the warrant, was void ; whereupon the plaintiff in his replication has shown that he was, according to the condition, in prison by virtue of the warrant returnable on Saturday, which was according to the condition of the bond ; then th^ plaintiff has fully confessed and avoided the defend- ant's plea ; for though Kingwell was in prison by virtue of the war- rant alleged by the defendant, yet if he was also in prison by force of the warrant alleged by the plaintiff, the bond was good, and not void : and therefore it was not material for the plaintiff to traverse the war- rant alleged by the defendant, which the plaintiff has sufficiently con- fessed and avoided before. And he further said, that if issue should be joined upon the traverse offered by the plaintiff, it would be a jeofail at common law. For suppose it should be found that King- well was in prison by virtue of the warrant returnable on Friday, yet at common law the court could not proceed to judgment for the de- fendant, because it does not appear but that he might also have been in prison by virtue of the warrant returnable on Saturday, because it is 80 pleaded and not denied by the other party, and therefore the bond good. And although, perhaps, it would be aided at this day by the statutes of jeofails, yet the defendant is not constrained to take such issue any more than he was at the common law. And he argued further, that the issue shall be taken upon the most material point, and for this he cited Helyar's Case, 6 Rep. 24 b. And the most material point here was the warrant returnable on the Saturday, which was the rightful warrant ; for upon issue joined upon this, a verdict found one way or the other determines the matter. For if it be found that the said Kingwell was in prison by force thereof, the bond is good , and if it be found that Kingwell was not in prison by force thereof, the 134 FOETBSCUE V. HOLT. [CHAP. III. bond is void. And also he put the cases of 41 Edw. III. ; Dy. 171 ; Cro. Car. 384. Trespass for breaking the plaintiff's close; the defendant says that it is his freehold; if the plaintiff entitles himself to a term for years, he shall not traverse the freehold of the defendant, because he has sufficiently avoided it ; and the plea and replication may well stand together. And so he concluded that the rejoinder was good. And for these reasons Twysden and "Wyndham, justices, were of the same opinion, Moreton, justice, being absent. But Kelynge, chief justice, was of opinion that the rejoinder was bad, because he took it to be but one warrant, but that the parties differed in the return of it. And then the plaintiff, alleging it to be returnable at another day than the defendant has pleaded, he did well to traverse the return which the defendant has alleged before, upon which traverse the defendant ought to have taken issue, and not to traverse over. And afterwards in the same term, the matter was argued again by Pemberton for the plaintiff, and Jones for the defendant, to the same intent as before. And Twysden, Wyndham, and Moreton, justices, delivered their opin- ions seriatim for the defendant, that the rejoinder was good, Kelynge, chief justice, being absent; but, at the instance of the plaintiff's counsel, the court gave him liberty to discontinue his action upon pay- ment of costs, although it was after they had delivered their judgment. FORTESCTJE v. HOLT, In the KiirG's Bench, Teinitt Teem, 1672, [Reported in 1 Ventris, 213.] A s cire facias was brought upon a judgment of £1,000, as admmls- Tfator^rJ. S. J, The defendant plea ded that before the administration committed to the plaintiff, viz., such a day, &c., admi nistration was granted to J. N,, Who is still a live a t P., and demandeth judgment of the writ. -J The plainti ff replies, .T. N. died. &o ... and de hoc ponit se super pa^ * [triam. And to that the defendant demurs. For that he ought to have traversed absque hoc, that he was alive : 'or though the matter contradicts, yet an apt issue is not formed with- out an affirmative and a negative ; and so said the court.* 1 Y. B. 10 H. VI., fol. 7, pi. 21 ; Ewer v. Moile, Yelv. 140 ; Courtney v. Phelps, 1 Sid. 801 ; Ayer v. Joyner, Ow. 141 ; Kenchin v. Knight, 1 Wils. 253 ; Muntz v. Fos- ter, 6 M. & G. 745, per Coltman, J. ; Spear v. Bicknell, 5 Mass. 125 ; Eames v Savage, 14 Mass. 425, accord. — Ed. SECT. III.] HORN V. LEWIN. 135 ANONYMOUS. ^ In the King's Bench, Eastee Teem, 1697. [Reported in 3 Salkeld, 353.] Where a matter is confessed and avoided, it need not be traversed. In replev in the defendant avowed, for that W. R. was seised and made please to _hin], the defendant, for one ^ar, and so justified the taking . &o., damage-feasant. The plaintiff replie d, that true it is that W. R. ^ -""''*' was seised, &c., but before he made aHJase to the defendant he made^TfTjI another to the plaintiff, which is still in being, and not determined. This is sufficient without a traverse, because the title of the defendant IS confessed and avoided ; but if the plaintiff had traversed the lease o f the defendant, i t would have been good upon a general demurrer, being only in the nature of a double plea ; but upon a special demurrei ' it had been naught.* HOKN V. LEWIN. In the King's Bench, Hilart Teem, 1700. [Reported in 2 Salkeld, 583.] In replevin the defendant made conusance for £100 de, redditu onerat. in aretro pro uno anno. The plaintiff as to £50 pleads de injuria sua propria absque hoc quod suit in aretro, and as to the other £50, that he was ready on the land till sunset, and none came to re- ceive it, and that he is still ready to pay it, and brings the money into court. Defendant demurs specially to the first plea,^ quia attingit ad generalem exitum. And as to the other £50, he takes it out of court, et pro dampnis dicit quod non oitulit, &c., and upon this the plain- tiff demurred. The case being several times spoken to, it was held, that de injuria sua propria absque hoc, &c., was an impertinent, r oundabout way of pleading the general issue, a nd that it amounted to no more than 1 Rice V. Harrison, Yelr. 221; Rex v. Kilderby, 1 Savmd. 312 d\ Helyar's Case, 6 Rep. 24 ; Mannings o. Townsend, Cro. El. 161 ; Waltham u. Sparks, 1 Ray. 41 ; Bedel v. Lull, Cro. Jac. 221 ; Covert's Case, Cro. El. 754 ; Johnson v. Norton, 2 Roll. R. 442 ; Denny v. Mazey, 2 Ventr. 212 ; Johnson v. Norway, Winch, 38 ; Pear-' son u. Rogers, 9 A. & E. 303 ; Oystead u. Shed, 13 Mass. 520 ; Breck v. Blanchard, 20 N. H. 323, accord; Newman v. Moore, Hob. 80, contra. — Ed. * Only so much of the case is given as relates to this plea. — Ed. 136 PALMEK V. EKINS. [CHAP. III. the general issue, riens in arrere, and consequently was ill upon a special demurrer. Also, this traverse put the defendant to an un- necessary replication; therefore, as to the £50, it was clear for the defendant.* COURTNEY V. SATCHWELL. In the King's Bench, Easter Tekm, 1726. yReported in 1 Strange, 694.] In trespass, assault, and false imprisonment, the defendant justifies under a process out of the sheriff's court in London, qiiw est eadem, &c., and traverses being guilty aliter vel alio modo ; to this the plain- tiff demurs, and shows for cause that the traverse is idle, and unneces- sary. And upon argument the court were of opinion that this was ill on a special demurrer, quae est eadem being a sufficient traverse. Lutw. 1457. And so it was held in the case of Carvil v. Manby, where on a general demurrer it was allowed to be well enough; but the court said if it had been a special demurrer, it would have been other- wise. . Judicium pro querente? PALMER V. EKINS. In the King's Bench, Michaelmas Term, 1728. [Reported m 2 Lord Raymond, 1550.] The plaintiff, Henry Palmer, as assignee of John Palmer, brought an action of covenant against Elizabeth Ekinsfor non-payment of rent, wherein he declared that .John Palmer was seised in fee of the mes- suage, &c., and being so seised, the 27th of March, 1716, by indenture made between him on the one part, and the defendant on the other part (one part of which indenture, sealed by the defendant, the plaintiff produces in court), demised to the defendant a messuage in the parish of St. Michael Crooked Lane, London, for twelve years from Lady-day, 1716, rendering £18 per annum during the said term to the said John Palmer, his heirs and assigns, payable at four quarterly payments; 1 Gough V. Bryan, 2 M. & W. 770, accord. — Ed. 2 Hargrave v. Ward, 3 Lutw. 468; Hawe v. Planner, 1 Saund. 13, accord. See Tyler v. Wall, Cro. Car. 228. — Ed. SECT. III. J PALMER V. EKINS. 137 that the defendant by the said indenture covenanted to pay the said rent at the days and times in the said indenture mentioned to the said John Palmer, his heirs and assigns ; that by virtue of this demise the defendant entered and continued possessed of this messuage, &c., till after the 26th of March, 1725. That John Palmer, being seised of the reversion in fee, by lease and release, dated the 22d and 23d of November, 1723, conveyed it to Henry Palmer, the plaintiff in fee ; then the plaintiff assigns his breach, in the defendant's not paying three-quarters rent due, and ending Lady-day, 1725. The defendant, protestando that John Palmer did not make such lease, for plea says, that John Palmer was seised in fee of this messuage 19th of November, 1706, and being so seised by lease and release dated the 19th and 20th of November, 1706, conveyed this messuage, &c., to one John Bragg, in fee ; and traverses, absque hoc, that John Palmer ad aliquod tempus post prcedictum 20th of November, 1706, seisitus fuU de messuagio prcedicto in dominico suo ut defeodo, modo et forma as the plaintiff declares. To this plea the plaintiff demurred generally, and the de- fendant joined in demurrer. This case was argued at several times by Mr. Seijt. Girdler, Mr. Seijt. Haines, and Mr. Fazaherley, for the plaintiff, and by Mr. Serjt. Belfield, Mr. Usher, and Mr. Filmer, for the defendant. And the 26th of November, 1728, 1, at my brothers' desire, delivered the opinion of the court, that the plea was ill, and the plaintiff ought to have judg- ment. And we resolved, That the defendant could not plead, John Palmer nil habuit in tene- mentis at the time of the lease made, to an action brought by John Palmer, supposing he had not conveyed to the plaintiff: because it ap- pearing upon the face of the declaration that the lease was made to her by indenture made between John Palmer and her, which she had executed ; she is estopped by the indenture. And for that purpose the case of Kemp v. Goodhaiy in debt for rent by indenture, if the defend- ant pleads nil habuit in tenementis, the plaintiff may ^emur and need not reply the estoppel, because it appears upon the declaration ; but if the defendant plead nil habuit in tenementis, and the plaintiff replies habuit, &o., the jury may find the truth, notwithstanding the indenture.'' That this plea of the defendant amounted to a special nil habuit in tenementis, for by the inducement to the traverse she shows that John Palmer, in 1706, long before he made the lease to the defendant, which was in 1716, conveyed in fee to Bragg. If so, John Palmer had noth- ing in the messuage, &c., when he made the lease. For ar estate in fee-simple is always intended to continue, unless it be shown to be con- 1 Pasch. 4 Annae, B. E. 6, 1 Ld. Raym. 1154. 2 A portion of the case not relating to pleading is omitted. — Ed. 5' 138 MAYOR, ETC., OF ORPORD V. RICHARDSON. [CHAP. III. veyed away or determined. Therefore this plea amounts to a special 7nl hahuit in tenements, which is no more to be admitted to be pleaded by a lessee by indenture, than a general nil hahuit in tene- mentie. But the defendant, by a proper inducement, might have made this traverse good ; as if he had pleaded in his inducement to the traverse that J. S. was seised of the messuage in fee, and being so seised conveyed it to John Palmer for his life, and that John Palmer being so seised, made the lease to the defendant, and afterwards con- veyed to the plaintiff, and that then John Palmer died ; whereby he would have showed that an interest passed by the lease to the defend- ant as long as John Palmer lived, and that by his death the lease was determined ; then such traverse as in the present case would have been good. For the estoppel that appeared upon the face of the declaration, would have been avoided by showing an interest past; and such plea would not have amounted to a nil habuit in tenementis, because an estate for life would have appeared to have been in John Palmer. But no interest appears to be in John Palmer in this case, when the lease was made to the defendant ; nor can the court intend there was any interest in him, since the plea sets out a conveyance before the lease to Bragg in fee simple, which estate must be intended to continue.^ , .\ THE MAYOR AND COMMONALTY OF ORFORD v. RICH- ARDSON AND AnOTHEE. In the King's Bench, Novbmbbe 18, 1791. [Reported in 4 Term Reports, 437.] In the Exchequeb Chamber, June 19, 1793. [Reported in 2 Henry Blackstme, 182.] Teespass for fishing in the plaintiff's free fishery, and also in their several fishery in Orford Haven, Suffolk. Plea, that Orford Haven from time immemorial hath been and is an arm of the sea, in which every subject of this realm hath had and still ought to have the liberty of free fishing. Replication, that the corporation of Orford are a cor- poration by prescription, and also by charter granted by Queen Eliza- beth, and that the corporation have immemorially had and enjoyed, and still ought to have and enjoy, the exclusive liberty of dredging and fishing for oysters in the said place, &c., at all seasonable times of the > See Brudnell v. Roberts, 2 WUs. 143. — Ed. SECT. III.] MAYOR, ETC., OP OBFORD V. RICHARDSON. 139 year, tra\ersing that in the said arm of the sea every subject has a right of free fishing, &o. Rejoinder, that the place in which, &c., hath been immemorially an arm of the sea, in which every subject has a right of free fishing, traversing the prescriptive right claimed by the plaintiffs in the replication. Demurrer, because the plaintiffs in their replication traversed a material and issuable point of the defendants' plea, and by that traverse tendered to the defendants a material issue, but the defendants in their rejoinder did not take issue upon that traverse, or join in issue with the plaintiffs thereupon, but passed by and took no notice thereof, and traversed another part of the plaintiffs' replication, and thereby attempted to put in issue another matter, and a matter alleged by the plaintiffs by way of inducement only to the traverse so made and taken by the plaintiffs; and thus attempted to introduce great uncertainty, confusion, and unnecessary length of pleading, &c. T. Walton was to have argued in support of the demurrer; but the court desired Baldwin, contra, to begin ; who endeavored to support the rejoinder by saying that the traverse tendered in the replication was a matter of law, and that in such a case the defendant was at liberty to traverse the inducement to the plaintiffs' traverse. It is not disputed but that, where a material traverse is tendered which will put the whole ques- tion in issue, the adverse party must take issue on it ; but here the plaintiffs wished to traverse a mere matter of law, because in an arm of the sea every subject has a right prima facie to fish. Carter w. Murcote ; ^ Warren v. Matthews.'^ The defendants being subjects, have a ^Hma /acts right to fish, without going into evidence to establish that right, but the party disputing that title must show a prescriptive rio-ht in himself And therefore the defendants offered a traverse of the special right in the corporation, which was the material issue to be tried, namely, whether or not they had such a separate right as would take it out of the general rule of law. That there may be a traverse upon a traverse, when the first is not material, is clear from many authorities. In Mall. Qu. Imp. 229, it is said, that if the traverse tendered be not material in substance, the other party may traverse the inducement to such traverse, and need not take issue on the former traverse. Again, in Hob. 104, " A man brings an action of waste for felling trees, and lays that the lessee fell and sold them ; the defendant confesses that he felled them, but saith that he bestowed them in re- pairing the house, absque hoc that he sold them. The plaintiff may reply that he let them rot, or any like case of waste, absque hoc that he employed them to reparations, and this is traverse upon traverse." i 4 Burr. 2162. 2 Salk. 537 ; 1 Mod. 105. 140 MAYOR, ETC., OF ORPOBD V. RICHARDSON. [CHAP. III. So in Crane u. The Bishop of Norwich^ in quare impedit the plaintiff declared on a seisin in A., who conveyed to B., who conveyed to the plaintiff, and that afterwards the church became void ; the defendant pleaded that before the conveyance to the plaintiff the church became void, and B. presented him, traversing that the church was void at any time after the conveyance to the plaintiff. The plaintiff replied that A. presented the defendant, traversing that B. presented him. That was a traverse of the inducement to the defendant's traverse, and held good. LoKD EJENTON, C. J. It seems clear from the cases cited that, where a traverse is tendered, which is not calculated to try the right in question, the other party need not take issue upon it, since it would be a nugatory issue. But it is admitted that there cannot be a traverse upon a traverse, when the first will decide the whole question. And this does not depend on any arbitrary or capricious rule, but is founded on good sense and reason ; otherwise pleading would answer no othei purpose than that of lengthening the record. "With regard to the question of law in this case, as to the right claimed by the plaintiffs, there can be no doubt but that there may be a prescriptive right in a subject to a several fishery in an arm of the sea. Here, then, after the defendants had pleaded that the place in question was an arm of the sea, in which every subject has a right of fishing, the plaintiffs replied a prescriptive right in themselves " without this, that in the said arm of the sea every subject has a right of free fishing," &c. That was saying, in other terms, " The right of fishing in this place does not stand on the general public right, but on special grounds derogatory from the general law." That traverse necessarily involved in it the real question in dispute between the parties, and consequently the de- fendants should have taken issue upon it. AsHHUEST, J. It is clearly established that wherever the point in question is traversed by one party, the other must take issue upon it, for they are not to go on in infinitum. The use of pleading is to bring the matter in litigation to one point. And there cannot be any doubt here but that the merits of this case might have been fairly tried on the first traverse. But it has been objected that this was a traverse of the law : that argument would have been well founded if there could be no prescription against the general right ; but, as it is clear that there may be a prescription to take away the general right of the public in an arm of the sea, the traverse tendered by the plaintiffs would put in issue the real question between these parties ; for it is founded on an antecedent fact introduced into the replication, which, if true, would defeat the general right upon which the defendants relied. 1 Lutw. 1632. dECT. in.] MAYOR, ETC., OP OEFORD V. RICHARDSON. 141 BuLLEE, J. The defendants' counsel has endeavored to su])povt the second traverse on two grounds ; first, because the traverse tendered by the plaintiffs is a matter of law ; and secondly, because it is imma- terial. The first is answered by saying that this is to be supported by evidence^ and is not mere matter of law. And as to the other ground, the rule of pleading has been truly stated, that, if the first traverse tendered be immaterial, the adverse party may add another traverse. Then with regard to the materially of the plaintiff's traverse, the fair question might have been as well tried on the first as on the second traverse. For one party is to prove that this is an arm of the sea, in which prima facie every subject has a right to fish ; the other is to establish a prescriptive right, which destroys the general right. And if the point in litigation come directly to be tried on either of these issues, it must be tried on that traverse which is first tendered. It is like the case of a traverse where the life or death of another person is to be put in issue ; if the first traverse tendered be that the party is dead, issue must be taken on that, or vice versa ; because either of these traverses will bring the same question to trial. The case cited From Hobart is distinguishable from the present. There the defendant tendered an immaterial traverse; the cutting down the trees was the wrong, and it was immaterial to the merits of that case whether che tenant had or had not sold them. Gkose, J., declared himself of the same opinion. Judgment for the plaintiffs. The assignment of errors was : " There is error also in this, that judgments were given for the said mayor and commonalty against the said John and William upon the several demurrers in the record and proceedings aforesaid, whereas judgments ought to have been given on those demurrers for the said John and William against the said mayor and commonalty, inasmuch as the places in which, &c., being admitted upon the said record and proceedings to be arms of the sea, or a public navigable river, in which the tide and water of the sea flowed and reflowed, the several traverses in the record and proceed- ings aforesaid, tendered by the said mayor and commonalty, are traverses of mere inferences of law, and therefore are immaterial traverses ; and inasmuch as the traverses in the record and proceed- ings tendered by the said John and William are traverses of the sev- eral prescriptions of the said mayor and commonalty, whereon alone the title of the said mayor and commonalty to the fisheries in ques- tion, and consequently to maintain this action, depends, a,nd therefore are the only material traverses to be taken and tendered." This case was twice argued, the first time in Easter term, by Wood 142 MAYOR, ETC., OF ORFORD V. RICHARDSON. [CHAP. III. for the plaintiffs in error, and Chambre for the defendants ; the second, in the present term, by Bower for the plaintiffs, and Le Blanc, Serjt., for the defendants. After which, Lord Chief Justice Eyke said shortly-, in the name of the court, that they had sent this case to a second argument, rather from an unwill- ingness to adopt, without great deliberation, a decision contrary to that of the court from whence the record came, than from any diffi- culty they saw in the question. For from the moment it appeared that upon the pleadings the plaintiffs might have recovered a verdict in an action of trespass, without having either possession or right, it seemed very difficult to support the judgment. That the first traverse was of the right of all the king's subjects to fish in the arm of the sea, stated bj' the defendants ; now this was clearly a bad and imma- terial traverse, for it was not only a traverse of an inference of law, but it was so taken, that if at the trial it had been proved that it was the separate right of others, and not of the plaintiffs, the issue must have been found for the plaintiffs, not onlj' without their being obliged to prove either possession or right, but where in fact thej' had neither possession nor right. That an immaterial traverse might be passed over, and the matter of the inducement traversed ; which had been properly done in this case by the defendants. Judgment reversed} 1 King V. Bolton, 1 Stra. 117 ; Thrale v. Bishop, 1 H. Bl. 376 ; Breck u. Blanchard, 20 N. H. 323; Wheelwright v. Beers, 2 Hall, 391, accord.— Ed. SECT. IV.J CROGATE'S CASE. 143 SECTION IV. Replication d'e Injuria, EDWARD CEOGATE'S CASE. Ik the King's Bench, Michaelmas Teem, 1608. [Reported in 8 Reports, 66.] Edward Ceogate brought an action of trespass against Robert Marys, for driving his cattle in Town-Barningham, in Norfolk, &a. The defendant pleade d that a house and two acres in Bassingham, in the said county, were parcel of the manor of Thurgarton, in the same county, and demised, and demisable, &c., by copy, &c., in fee-simple, &c., according to the custom of the manor, of which manor William, late Bishop of Norwich, was seised in fee in the right of his bishopric, and prescribed to have common of pasture for him and his customary tenants of the said house, and two acres of land in magna pecia pas- turce vocaf Bassingham common, pro omnibus averiis, etc., omni tem- pore anni, and the said bishop, at such a court, &c., granted the said house and two acres, by copy, to one William Marys, to him and his heirs, &c. And that the plaintiif put his said cattle in the said great piece of pasture, wherefore the defen dant, as servan t to the sai d Wil- liam, and by h_is c omman dment, moUiter drov e the said cattle out of the said place, where the said William had common in prced^ villam de Town-Barningham, adjoining to the said common of Bassingham, &c. The plaintiff replied de injuria sua propria absque tali causa. Upon which the defendant demurred in law. And it was objected on the plaintiff's part that the said replication was good, because the defend- ant doth not claim any interest, bujt justifieth by force of a command- ment ; to which de injuria sua propria absque taU causa may be fitly applied : and this plea, de injuria sua propria, shall refer only to the commandment, and to no other part of the plea; and they cited the books in 10 H. VI. 3 a, 5, 9 a; 16 H. VII. 3 a, b, &c. ; 3 H. VI. 85 a ; 19 H. VI. 7 a, b, &c. But it was adjudged that the replication was insuffi- cient. And in this case divers points were resolved. 1. That absque tali causa doth refer to the whole plea, and not only to the command- ment, for all maketh but one cause, and any of them, without the other, is no plea by itself. And therefore, in false imprisonment, if the defendant justifies by a capias to the sheri^ and a warrant to him 14 1 CROOATE'S case. ( CHAP. in. there, de injuria sua propria generally is no good replication, foi then the matter of record will be parcel of the cause (for all makes but one cause), and niatter of record ought not to be put in issue to the common people, but in such case he may reply de injuria sua propria, and traverse the warrant, which is matter in fact. But upon such a justification, by force of any proceeding in the Admiral Court, hundred, or county, &c., or any other which is not a court of record, there de injuria sua propria generally is good, for all is matter of fact, and all makes but one cause. And by these diflPerences" you will agree your books in 2 H. VII. 3 5; 5 H. VII. 6 a, b ; 16 H. VII. 3 a; 21 II. VII. 22 a (33) ; 19 H. VI. 7 a, 5; 41 E. III. 29 5; 17 E. III. 44; 18 E. Ill, 10 b; 2 E. IV. 6 b; 12 E. IV. 10 b; 14 H. VI. 16; 21 H. VI. 5 a, b; 13 K. II. Issue 168. 2. It was resolved that when the defendant in his own right, or as a servant to another, claims any interest in the land, or any common, or rent going out of the land, or any way or passage upon the land, &c., there de injuria sua propria generally is no plea. But if the defendant justifies as servant, there de injuria sua propria in some of the said [ cases, with a traverse of the commandment, that being made material, is good ; and so you will agree all your books, scil, 14 H. IV. 32 ; 33 H.VI. 5; 44E. III. 18; 2H.V. 1; 10 H. VI. 3, 9 ; 39 H. VI. 32; 9 E. IV. 22 ; 16 E. IV. 4 ; 21 E. IV. 6 ; 28 E. III. 98 ; 28 H. VI. 9 ; 21 E. III. 41 ; 22 Ass. 42 ; 44 E. III. 13 ; 45 E. III. 7 ; 24 E. III. 72 ; 22 Ass. 85 ; 33 1H. VI. 29 ; 42 E. III. 2. For the general plea, de injuria sua propria, &c., is properly when the defendant's plea doth consist merely upon matter of excuse* and of no matter of interest whatsoever ; et dicitur de injuria sua propria, &o., because the injury properly in this sense is to the person, or to the reputation, as battery or imprisonment to the person, or scandal to the reputation ; there, if the defendant excuse himself upon his own assault, or upon hue-and-cry levied, there prop- erly de injuria sua propria generally is a good plea, for there the defendant's plea consists only upon matter of excuse. 3. It was resolved, that when by the defendant's plea any authority or power is mediately or immediately derived from the plaintiff, there, although no interest be claimed, the plaintiff ought to answer it, and shall not reply generally de injuria sua propria. [The same law of an authority given by the lawj^s to view waste, &o.Vide 12 E. VI. 10 ; 1 9 Ed. IV. 31 ; 20 Ed. IV.T; 42 Ed. III. 2 ; 16 H. VII. 3. Lastly, it was resolved that, i n the case at bar, the issue would be full of multipl icity of matter, where an issue ought to be full and single tor parcel oi' the manor, demisable by copy, grant by copy, prescrip- ^Sion of common, &c., and commandment would be all parcel of the issue. And so, by the rule of the whole court, judgment was given against the plaintiff. SECT. IV.] FUBSDON V. WEEKS. 14c TAYLOR V. MARKHAM. In the King's Bench, Trinity Teem, 1609. [Reported in Croke's James, 224.] Iif an action of trespass and battery, the defendant pleaded that he, at the time of, &c., was seised of the rectory of D. in fee ; and that at the same time and place where the trespass and battery were sup- posed, &c., corn was severed from the nine parts; and for that the plaintiff would have carried away his corn, the defendant there stood in defence thereof, and kept the plaintiff" from carrying it away ; so as the harm which the plaintiff received was of his own wrong, &c. The plaintiff replies, that the trespass and battery were done sans tiel cause aUedge, &c. Whereupon the defendant demurred in law. It was adjudged for the plaintiff; for it is not requisite in this case for the plaintiff to answer the defendant's title, because he does not by this action claim any thing in the land or corn, but only damages for the battery, which is collateral to the title ; and therefore the general replication is good ; but when the plaintiff makes a title in his declara- tion to any thing, and the defendant pleads another thing against it, the plaintiff must reply specially, and not say sans tiel cause, as it is in 14 Hen. IV., and 16 Edw. IV.» FURSDON" V. WEEKS. In the Common Pleas, Trinity Teem, 1682. [Sfported in Levinz, 65.] Trespass for battery and false imprisonment 1 Aug. 31 Car. II. at D. in (/Om. Devon. The defendant justifies by virtue of a writ ex £anc Regis Com! Middlesex Yicecow! Devon, and a warrant and arrest thereupon at D., and traverses all other places and times. The plaintiff replies de injuria sua propria absque tali causa. The defend- ant demurred, and had judgment; for to thrust matter of record, and matter of fact, and varieties of matters, as the warrant; the arrest, &c., at once in issue is nought upon general ^ demurrer ; ' according to 1 HaU u. Gerrard, Latch, 128, 221, 273 ; Earl of Bedford's Case, Cro. El. 14 ; ■Vivian-tfi Jenkins, 8 A. & E. 741 ; Sampson v. Henry, 11 Pick. 379, accord. — 'Ko. ' 2_Ij) EQoier V. Nye, 1 C. M. & R. 258, and Coffin jjJSassett, 2 Pick,,3_57, the im- proper use of the general replication de injuria was fatal on a general demurrer ;'bul in Parker v. Riley, 3 M. & W. 230, Fursdon ■;. Weeks and Hooker o. Nye were ex-'^ pressly overruled. — Ed. 3 Y. B. 3 H. VI. f 85, pi. 29 i^semhU) ; Y. B. 21 H. VI f. 5, pi. 14; Y. B. 5 H 10 I4b CHANCE V. WEEDEN. [CHAP. III. Crogate's Case. Also the replication here wants a conclusion, scil, ei hoc petit quod inquiratur per patriam ; for the replication in this case ought to make an issue of itself; but the words which ought to make the issue, and hoc petit, &c., are omitted. CHANCE V. WEEDEN. In the King's Bench, Michaelmas Teem, 1700. [Reported in 2 Salkeld, 628.] Teespass for two hundred bushels of salt. The defendant sets fortb the act for laying a duty on salt, 10 W. III., that it was put on board to be exported, not being weighed, &c. ; that he was an officer, &c., and seized it ; the plaintiff replied de injuria sua propria absque tali causa; the defendant demurred. JSt per Holt, C. J. Where the defendant justifies by virtue of an authority by the common law, as a constable by arrest for breaking of the peace, under process of the admiralty, &c., de injuria sua propria is a good replication ; so it is, and by the same reason, when one justifies by an authority of an act of Parliament ; for, being a general law, the statute can be no part of the issue. Vide 16 H. VH. 2 ; 5 H. VII. 6; Co. Ent. 643. A justifica- tion upon the statute de malefactoribus in parcis, and a like replica^ tion. As for the case in Crogate's Case of waste, and enter pur view. Holt, C. J., said it stood on a particular reason. Also the court held the plea ill, because it was not showed what sort of salt this was, — bay-salt, pit-salt, white-salt, &o., for the statute does not extend to all. Judgment pro quer?- Vn. f. 6, pi. 12 {semble) ; Y. B. 2 Ed. IV. f. 6, pi. 15 ; Y. B. 12 Ed. IV. f. 10, pi 28 ; Webb v. Beale, Hard. 6 {semble) ; Lytle v. Lee, 5 Johns. 112 ; Griswold v. Sedg- wick, 1 Wend. 130, accord. — Ed. 1 Allen V. Scott, 13 111. 80 ; Cobum v. Hopkins, 4 Wend. 578 ; Stickle v. Rich mond, 1 Hill, 77, contra. See also Lytle v. Lee, 6 Johns. 114 ; Plumb v. M'Crea, 12 Johns. 491 ; Allen v. Crofoot, 7 Cow. 46 ; Griswold v. Sedgwick, 1 Wend 130. Conf. Lane w. Eobinson, 2 Mod. 102; Moor v. Savage, 2 Leon. 81. — Ed. SECT. IV.] COCKERILL V. ARMSTRONG. 147 THOMAS COCKERILL v. MATTHEW ARMSTRONG and Six Others. lu THE Common Pleas, June 20, 1738. [Reported in Willes, 99.] The opinion of the court was thus delivered by WiiiLES, Ld. C. J. Trespass for taking, leading away, and impound- ing a gelding of the plaintiff's, and for keeping him in pound for the space of four days, &c. Damage, £30. The defendants all pleaded a special plea, that the place where the gelding was taken at the time when, &c., was a close called Weapness, containing 1000 acres of pasture ground ; of which said 1000 acres the bailiffs and burgesses of the borough of Scarborough were at the time, when, &c., seised in their demesne as of fee, and because the said gelding in the declaration mentioned at the time, when, &c., was in the said 1000 acres feeding upon and eating the grass there growing, and doing damage thei-e, the said Matthew, &c., as servants of the bailiffs and burgesses of the said borough, and by their command, took the said gelding so feeding and doing damage there, and impounded the said gelding in the common and open pound at Scarborough aforesaid, and detained him there for the time mentioned in the declaration, as it was lawful for them to do ; which is the same trespass, &c. The plaintiff replies that the defendants took away and impounded the said gelding of their own wrong, without any such cause, &c. The defendants demur; and for cause of demurrer show that the plaintiff in his replication hath traversed the said several matters con- tained in the plea, whereas he should have traversed one single matter, whereon a proper issue might have been joined ; and that the said replication is uncertain, &c. The plaintiff joins in demurrer. The single question is,-' whether de injuria sua propria absque tali causa be a good replication, and we are all of opinion that it is not a good replication, for two reasons, both expressly laid down in Crogate's Case. The first of them is the reason assigned as the cause of the demurrer, because it puts several things in issue, whereas the issue ought to be plain and single. For upon this issue the defendants must prove that the bailiffs were seised in fee (or, at least, that they were possessed) • 1 This case was twice argued, the first time in Easter, 1738, by Eyre, King's Serjt. for the defendants, and Bootle, Serjt., for the plaintiff ; and again on the 10th of June 1738, by Wyn^ie, Serjt., for the former, and Burnett, Serjt., for the latter. 148 COCKERILL V. ARMSTRONG. [CHAP. Ill, that the defendants acted by their command ; that the gelding at the time when he was taken was in a close called Weapness, and that he was depasturing the grass and doing damage there. The other rule, which is laid down by Lord Coke, is, that when the defendant in his own right, or as servant to another, claiming any in- terest in the land, or any way or passage therein, or rent issuing thereout, justifies the trespass, de injuria sua propria absque tali causa is not a good replication : and Crogate's Case is exactly parallel to this, only the present is a little stronger. There the action was only for chasing the plaintiff's cattle, which does not so much as imply any claim of right in the defendant; but here it is for taking away and impounding, which seems to imply a claim of right. And the plea is almost the same as this; for the defendant justifies as servant to one who claims a right in the place where, only it is not said there that the cattle were damage-feasant. So that in that respect likewise the present case is stronger than that. And yet, though the case in Coke is not so strong as the present in these two respects, de injuria sua propria absque tali causa was holden on a demurrer by the whole court after a solemn argument not to be a good replication. I do not at all rely on the case in Cro. Jac. 599, because absque tali causa is there omitted. But the case of Taylor v. Maikham, though cited for the plaintiff in this case, makes, I think, rather against him. The case itself is plainly distinguishable from this ; for the action is an action of assault and battery, where the title of the land can never possibly come to be material. But it is expressly there laid down that where the plaintiff in his declaration makes a title to any thing, and the defendant pleads another thing against it or in destruction of the cause of action of the plaintiff, there the plain- tiff must reply specially, and de injuria sua propria absque tali causa is not a good replication ; which is exactly the present case. And there is a case cited in Yelv., out 14 Hen. IV. 32, trespass for taking the plaintiff's servant ; the defendant pleaded that the fatlier of the person taken held of him by knight's service and died seised, the per- son taken being under age, and that he seized him as his ward ; the plaintiff replied de injttria sua propria absque tali causa, and held to be no good replication ; which case seems to be exactly parallel to the present. I do not rely at all on the case of Cooper v. Monke and Others,^ which was determined in this court as to this point in Hilary term, 1737 ; because that was an action for breaking and entering a house, which, to be sure, is plainly distinguishable from the present case. The case of Whitnell v. Cook^ seems to be a case in point. 1 WiUes, 52. 2 Cro. EUz. 812. SECT. IV. J JONES V. KITCHIN. 149 Replevin for taking cattle ; the defendant, as bailiff to one Payne, seised of the third part of the place where, justified taking them damage-feasant ; the plaintiff pleaded that a stranger was seised of the other two parts, and that he put the cattle in by his license, de injuria sua propria, &G., hy the defendant; and that held on a de- murrer not to be good, but judgment for the plaintiff. It is said, indeed, in the case of the Archbishop of Canterbury v. Kemp,' that where the defendant himself claims an interest in lands, this is not a good replication, but where he justifies by command of another claiming interest, there it is : but this seems to be a distinction without a diffference, as the title to the land must equally come in ques- tion, and is alike necessary to be proved in both cases ; and it is directly contrary to Crogate's Case. Whether or no in the present case it was necessary for the defendant to set forth a title, or whether he might have relied only on a posses- sion (as this is not a quare clausum fregit, but an action for taking a personal thing without claiming any right to the place), we need not determine, though I think it was not necessary ; because he having insisted on a seisin in fee, we think it is more than an inducement, and that it is necessary to prove it, or at least a possession which is prima facie a proof of a seisin in fee, and will be exactly the same thing in respect to the present point. And there is a plain difference between the present case and the case of an action for an assault and battery ; because there, if the party be possessed, even though the plaintiff should have a title to the house or place, it will signify nothing ; for his bare possession will justify him even turning the right owner out of the house : whereas here, if the plaintiff has a right to the place where, &c., for right of common, &c., it may quite destroy the defendant's plea. And the present case is the stronger, as the defendants have specially assigned this as a cause of demurrer. We are therefore all of opinion that judgment must be for the defendants. r 4- JONES V. KITCHIN. ' . In the Common Pleas, July 5, 1797. {Reported in 1 Bosanquet ^ PuUer, 76.] Replevin for goods and chattels. Cognizance, stating that the place in which, &c., was a house held by the plaintiff under a demise from one John Osborne, at a yearly 1 Cro. Eliz. 539. 150 JONES V. KITCHIN. [CHiP. U'. rent of £42, payable on the quarterly feast-days ; that £31 of the said rent was due, in arrear, and unpaid to the said John Osborne, and that the defendant, as bailiff of the said John Osborne, acknowledges, &c. Plea in bar, de injuria sua propria absque tali causa. Demurrer thereto, assigning for causes that the said plaintiff hath in and by his said plea tendered and offered to put several and distinct matters in' issue, that is to say, the holding and enjoying of the said dwelling-house with the appurtenances in the said declaration and cog- nizance above mentioned by the said plaintiff; and hath also in and by his said plea denied that the said rent in the said cognizance mentioned was due, in arrear, and unpaid, as in that cognizance is above alleged and contained ; and for that the said plaintiff hath also in and by his said plea tendered and offered to put in issue as well the times and manner of the payment of the said rent as also the amount and quan- tity of the same; and fbr that the said plaintiff should and ought in and by his said plea to have tendered and offered to put in issue one single fact only, to be tried by a jury of the country, and to have relied on the same ; and for that in the manner the same plea is above pleaded, no certain or single issue can be joined in the same ; and for that the said plea is double, multifarious, and not issuable, and is also in various other respects defective, argumentative, insufficient, and informal. Joinder in demurrer. The court, inclining against the plea in bar, called upon Shepherd, Serjt., to begin in support of it. Shepherd. Where two facts are necessary to make up one defence, neither of which is matter of record, the plea de injuria sua propria absque tali causa is good ; and so is the rule in Crogate's Case, 1st resolution. In Chauncey v. Winde, this distinction from 2 Leon. 102, was taken in argument, that where the matter of record is but induce- ment to the action, a special answer is not requisite ; and Holt, C. J., thought the replication de injuria to a justification of trespass, under a warrant from the commissioners, by virtue of an act of Parliament, good. In Robinson v. Rayley, Lord Mansfield says : " It is true you must take issue on a single point, but it is not necessary that the single point should consist only of a single fact." So here tenancy in the plaintiff and rent in arrear are both necessary to entitle the defendant to restrain. Though at common law the defendant must have set forth his title, which would have precluded the plea de injuria, yet by the 11 G. II. c. 19, § 22, matter of title is excluded from the avowry, and nothing is to be set out but matters of fact, which in this case are tenancy and rent in arrear. If, therefore, this be not a good plea, the plaintiff must either admit the defendant's title to the land oj SECT. IV.] JONES V. EITCHIN. 151 the rent in aiTear. The intention of the statute was only to shorten the pleadings, and the defendant need not have stated by whom the demise was made, but the defendant's having gone beyond the statute makes no difference in the law. In a precedent book of Lawrence, J., there is such a plea as the present, and a note of his in the margin, stating that he demurred to it; but it was overruled. The plaintiff might have traversed every fact in the avowry by leave of the court, which leave is now become almost matter of right : the court, therefore, will not oblige him to do that in a circuitous manner, which may be done more shortly by the present plea. Marshall, Serjt., contra. If this mode of pleading be good, the 11 G. II., instead of conferring a favor on landlords, would produce an inconvenience : it would be better to avow, as at common law, and have an explicit answer to one fact. This plea would put in issue, first, the holding, which, if there be no privity of contract, may involve the distrainor's title ; secondly, the tei-ms of the holding, viz., the amount and days of payment of rent ; thirdly, that rent was in arrear ; fourthl}', that the distress was taken for that rent ; and in the case of a cogni- zance, like the present, command. The fourth resolution in Crogate'a Case is decidedly against the present plea in bar. I admit that if the several matters put in issue make together but one defence, they may all be put in issue together, and then de injuria sua propria absque tali causa is proper. But when the plaintiff makes title by his decla- ration to any thing, and the defendant pleads something in destruction thereof, or of the plaintiff's cause of action, then the plaintiff must reply sjiecially, and not say absque tali causa, for absque tali causa goes to the whole plea. Taylor v. Markham, Horn v. Lewin,^ Witnel V. Cook,^ Banks v. Parker,' White v. Stubbs.* In Cookerill v. Arm- strong, the declaration was trespass for taking a gelding ; defendant justified as servant of J. S., who was seised in fee ; replication, de injuria sua propria absque tali causa, and judgment for the defendant. The case is shortly reported in Com. 582, but I will read to the court the judgment of Lord Ch. J. Willes, as taken from his Lordship's note. It only remains to observe on the cases cited for the plaintiff. That which was called a single point in Eobinson v. Rayley embraced several distinct facts, any one of which being negatived would have entitled the plaintiff to judgment ; therefore the doctrine laid down there is directly contrary to the doctrine in Crogate's Case, which, before that, was considered as the great landmark. In Chauncey v. Winde, the court held the replication good, because .the statute being a general one needed not to have been pleaded, and therefore could 1 Fost. 233. 2 Cro. Eliz. 812. 8 Hob. 76. * 2 Sauad. 2a4. 152- -JONES V. KITCHIN. [CHAP. III. make no part of the issue ; and in that case, as it is reported in 12 Mod. 580, Mr. Eyres, in arguing for the defendant, admitted that where one claims common by prescription, rent by grant, goods by sale, &c., and so justifies as having an interest therein, there the plaintiff must answer directly to the title, and not de injuria sua propria. The court understanding that such a plea in bar as the present had been used of late, took time to consider. The opinion of the court was this day delivered by Eyee, C. J. As a wish has been expressed by the defendant's counsel that this case should be disposed of within the term, we will not keep it on foot any longer, for the sake of giving a more formal judgment than is already prepared. It is only necessary to read Cro- gate's Case, to be perfectly satisfied that on the authorities and on the reason of the thing this plea in bar is bad. The second resolution in that case is, " That when the defendant in his own right, or as servant to any other, claimeth an interest in the land, or to any common, or rent going out of the land, or to any way or passage upon the land, &c., there de injuria sua propria generally is no plea. That if the defendant justifieth as servant, there de irjuria sua propria in some of the said cases, with traverse of the commandment, the same being made material, is good, &c. For the general plea, de injuria sua projyria (which should be replication), is properly when the defend- ant's plea doth consist merely upon excuse, and upon no matter of interest whatsoever. And it is said de injuria sua propria, because the injury properly in this sense is to the person or to the fame; as battery or imprisonment to the person, or scandal to the fame. There, if the defendant excuse himself upon his own assault, or upon hue-and- cry, there properly de injuria sua propria generally is a good plea, for there the defendant's plea doth consist only upon matter of excuse." The third resolution is, "That when by the defendant's plea any au- thority or power is mediately or immediately derived from the plaintifi", there, although no interest be claimed, the plaintifi" ought to answer it, and shall not reply generally de injuria sua propria." Thus in this case the i-ule is distinctly laid down, that the replication de injuria sua propria is only to be received where the defence set up is matter of excuse, and not where it asserts any right or interest. Nor is that all ; for if the defence turns on the plea of commandment, de injuria sua propria is not good, but the commandment rhust be answered. In the case of Cockerill v. Armstrong, which was trespass for taking a gelding, and the defendant pleaded that the place where, &c., was one hundred acres, &c., that J. S. was seised in fee, and that he, as his servant and by his express orders, took the gelding damage-feasant, it was held that the plaintifi" could not reply de injuria sua propria absque tali causa. SECT. IV.] O'BRIEN V. SAXON. 153 for that would put in issue three or four things ; but he must traverse one thing in particular. The case is right in point of authority ; and I agree with the rule laid down, that where the excuse arises in part out of the seisin in fee of another, there de injuria sua propria is not to be received. But the reason is not because it puts two or three things in issue, for that may happen in every case where the defence arises out of several facts, all operating to one point of excuse: the reason is, because this plea is only allowed where an excuse is offered for personal injuries, and not even then, if it relates to any interest in land (and here an interest in land would make part of the issue), or to any commandment. It is right that this case should be brought within the general rules of pleading, otherwise the 11 G. II., which was in- tended to operate for the ease and benefit of landlords, would be turned against them ; for before the making of that statute, the issue in re- plevin must have been confined to some one material point. If we were now to break in upon the rule so satisfactorily laid down in Crogate's Case, we should confound all the rules of pleading. If we admit this plea in the present case, I do not see why we must not let it in, in quare impedit, and every other case. Let us stand by the rules of pleading, which if we infringe here we may destroy altogether. We are all of opinion that this plea in bar is bad. Judgment for the defendant} O'BRIEN V. SAXON. \ , j Us THE King's Bench, Easter Teem, 1824. [Reported in 2 Bamewall S^ Cresswell, 908.] Declaeation for maliciously, and without any reasonable or proD- able cause, suing out a commission of bankruptcy against the plaintiff. Plea, that before the suing out of the commission, to wit, on, &c., at, &c., the plaintiff being a dealer and chapman, and seeking his trade, of living by buying and selling, and being indebted to the defendant in the sum of £100 and upwards, became and was a bankrupt, within the meaning of the several statutes then and still in force concerning bank- rupts, or some or one of them, wherefore the defendant sued out the 1 Archbishop v. Kemp, Cro. EI. 539 ; Whitnel v. Cook, Cro. El 812 ; King v. Hopper, Cro. Jao. 598 ; "White u. Stubbs, 1 Lev. 307 ; s. c. 2 Saund. 294 ; Anon., 1 Roll. 47 ; Euishbrook v. Pusanie, 4 Leon. 16 ; Cooper v. Monke, Willes, 52 ; Hooker V. Nye, 1 C, M. & R. 258; Langford v. Waghorn, 7 Price, 670; Solly v. Neish, 2 C, M. & R. 355 ; Gr. Falls Co. u. Wooster, 15 N. H. 412 (semble) ; Hyatt v "Wood, 4 Johns. 150, accord. — Ed. 154 ■ O'bRIEN v. SAXON. [chap. III. commission of bankrupt in the declaration mentioned. Replication, that the defendant, of his own wrong, and without the causes by him in his plea alleged, committed the said grievances in the declaration mentioned. To this replication the defendant demurred, and assigned for cause that the plaintiff had attempted to put in issue three distinct allegations, contained in the defendant's plea, viz., the plaintiff's trad- ing, his bankruptcy, and the petitioning creditor's debt. Manning, in support of the demurrer, cited Cockerill v. Armstrong ; that was trespass for taking a gelding, and the defendant pleaded that tlie locus in quo was one hundred acres, and that J. S. was seised thereof in fee, and that the defendant as his servant, and by his express orders, took the gelding damage-feasant. The plaintiff replied de in- juria sua propria absque tali causa ; and it was held that the repli- cation was bad, because it put in issue three or four things. In this case the replication puts in issue the trading, the act of bankruptcy, and the petitioning creditor's debt, and therefore is bad. Campbell, contra, was stopped by the court. Per Curiam. Those three facts connected together constitute but one entire proposition, and therefore the replication is good. In Crogate's Case, it is laid down that the general replication, de injuria sua propria, is proper, when the defendant's plea consists of matter of excuse, and of no matter of interest whatever. Here the plea consists of matter of excuse only. In Robinson v. Rayley, the defendant in trespass pleaded a right of common for his cattle levant and couchant. The plaintiff replied that they were not his own commonable cattle levant and couchant. The defendant demurred specially, because the replication was multifarious ; but the court held the replication good, the rule being not that issue must be joined on a single iact, but on a single point, and that it was not necessary that this single point should consist only of a single fact; and Lord Mansfield says, "Here the point is, the cattle being entitled to common : this is the single point of the defence ; but in fact they must be both his own cattle, and also levant and couchant, which are two different essential circum- stances of their being entitled to common, and both of them absolutely requisite." So in this case the point is, whether the plaintiff duly became bankrupt ; and in order to establish that, there must be a trad- ing, an act of bankruptcy, and a good petitioning creditor's debt ; and these three circumstances are essential to constitute him a bankrupt. The judgment, therefore, must be for the plaintiff. Judgment for the plaintiff} 1 Whittaker v. Mason, 2 B. N.. C. 859 ; Griffin v. Yates, 2 B. N. C. 579 ; Stickle v Richmond, 1 Hill, 77, accord. — Ed. SECT. IV.J SELBY V. BARD0N3. 155 H. C. SELBY, Esq., v. BARDOlSrS and Another. In the King's Bench, Hilary Teem, 1832. / ' [Reported in 3 Barnewall Sf Adolphus, 2.) DECa^AEATiON in replevin for taking the plaintiff's goods and chat- tels in Verulam Buildings, Gray's Inn, in the county of Middlesex, and detaining the same against sureties and pledges. The fourth avowry and cognizance were by the defendant Bardons, as collector of the poor-rates of that part of the parish of St. Andrew, Holborn, whicli lies above the bars, in the county of Middlesex, and of the parish of St. George the Martyr in the said county, and by the other defendant as his bailiff; and it stated that the plaintiff was an inhabitant of the said part of the parish of St. Andrew, Holborn, and by law ratable to the relief of the poor of that part of the said parish, and of the parish of St. George the Martyr, in respect of his occupation of a tenement situate in the said place in which, &c., and within the said part of the parish of St. Andrew; that a rate for the relief of the poor of that part of St. Andrew, Holborn, and of the parish of St. George the Martyr, was duly ascertained, made, signed, assessed, allowed, given notice of, and published according to the statutes ; and that by the said rate the plaintiff was, in respect of such inhabitancy and occupation as afore- said, duly rated in the sum of £7 ; that Bardons, as collector, gave him notice of the rate, and demanded payment, which he refused ; that the plaintiff was duly summoned to appear at the petty sessions of the justices of the peace for the said county, to be holden at a time and place duly specified, to show cause why he refused payment ; that he appeared, and showed no cause ; that a warrant was duly made under the hands and seals of two justices of peace for the county then pres- ent, directed to Bardons as collector, requiring him, according to the statute, to make distress of the plaintiff's goods and chattels ; that the warrant was delivered to Bardons, under which he, as collector, avowed, and the other defendant, as his bailiff, acknowledged the taking of the goods as a distress, and prayed judgment and a return of the goods. The plaintiff pleaded in bar that the defendants of their own wrong, and without such cause as they had in their avowry and cognizance alleged, took the plaintiff's goods and chattels, &c. To this plea there was a special demurrer, and the causes assigned were, that the plea in bar tendered and offered to put in issue several distinct matters, — the inhabitancy of the plaintiff ; his chargeability to the re- lief of the poor, in respect of his occupation mentioned in the avowry and cognizance ; the ascertainment, making, signing, assessing, allow- 156 SELBT V. BABDONS. [CHAP. Ill, ance, notice, and publication of the rate ; the rating and assessment of the plaintiff; the notice to him of the rate; the demand and re- fusal of the sum assessed ; the summons, the appearance before the justices, the warrant of distress, and delivery thereof to the defendant Bardons. Another cause assigned was, that the plea in bar was pleaded as if the avowry and cognizance consisted wholly in excuse of the taking and detaining, and did not avow and justify the same, and claim a right to the goods and chattels by virtue of the statutes To the fifth and sixth avowries and cognizances, which were similai in form to the fourth, the plaintiff pleaded de injuria; and there were special demurrers, assigning the same causes as above. The plaintiff joined in demurrer. The case was argued in last Michaelmas term by Coleridge in sup- port of the demurrer, and Maule, contra. The judges not being agreed in their opinions, now delivered judgment seriatim. The points urged and the authorities cited in argument are sufficiently stated and commented on in the opinions delivered by them. Pattbson, J. The pleas in bar to the fourth, fifth, and sixth cog- nizances are so entirely at variance with one of the principal objects of special pleading, viz., that of bringing the parties to clear and precise issues of fact or of law, that I cannot bring my mind to consider them as maintainable upon principle. But if, upon the authority of decided cases, it should appear that they are maintainable, I am not prepared to overrule those cases upon any opinion that I may entertain respect- ing the inconvenience of so general a form of issue ; and I am free to confess that, after an attentive examination of the authorities, I am of ojjinion that the pleas are maintainable. The leading case upon the subject (I mean Crogate's Case, for the Year-Books throw little light on the subject) is by no means consist- ent in all its different parts, and much that is contained in the four resolutions is unnecessary to the decision of the case itself. The pleadings were in substance as follows : Trespass for driving cattle. Plea, a right of common as copy-holder in a piece of pasture into which the plaintiff had put his cattle ; and that defendant, as serr vant of the commoner, drove them out. Replication, de injuria sua propria absque tali causa. The first resolution is in substance this : that the replication de inju- ria absque tali causa refers to the whole plea ; for all is but one cause. The second resolution is, that where any interest in land, or common, or rent of or way over land is claimed, de injuria is no plea ; for it is properly when the plea does consist of matter of excuse only, and no matter of interest whatever. The third resolution is, that where the defendant justifies under authority from the plaintifij t^e tw/wna is no SECT. IV.] SELBT V. BAED0N3. 157 plea; so where he justifies under authority of law. The fourth resolu- tion is, that the issue in the case then at bar would be full of mul- tiplicity. Upon the authority of this case, if the pleas in bar now under con- sideration be bad, they must be so on one of the following grounds : — Either that the avowries claim some interest, or that the defendant justifies under authority of law within the meaning of the third resolu- tion, or that they are bad for multiplicity. In the first place, as to any claim of interest, it is plain that the avowries claim no interest whatever in land, the sort of interest to which the second resolution is in words confined. But, supposing any interest in goods were within the spirit of that resolution, still, I appre- hend that it must be an interest existing antecedent to the seizure complained of, and not one which arises merely out of that seizure ; otherwise this plea could never be good in replevin where a return of goods is claimed, and, of course, an interest in them is asserted. In- deed, it seems to be considered in some text-books that this plea in bar can never be used in replevin ; but on reference to 'the authorities cited for that position, they all appear to be cases where an interest in land was claimed by the avowry. In this respect, I confess that I can- not see any distinction between an action of replevin and one of tres- pass ; and as the plaintiff can bring either at his election, it would be strange if he should be able by suing in trespass to entitle himself to the general form of replication, but if he sues in replevin should be debarred from it. The case of Wells v. Cotterel* was cited at the bar to establish that the plea of de injuria is good in replevin ; but it appears in that case that three of the judges held it good against the opinion of the fourth, but that all the court held the avowry bad, and therefore no decision was necessary as to the plea. On the other hand, the case of Jones v. Kitchin is commonly referred to as estab- lishing the position that this plea in bar can never be used in replevin ; but it does not go that length, for the avowry there was for rent in ari-ear, and, therefore, de injuria would have been equally bad had the •form of the action been trespass. For, in White v. Stubbs,^ which was an action of trespass, de injuria was held to be a bad replication, the plea claiming an interest in land, and justifying the taking the goods as encumbering a room to which the defendant showed title. As, therefore, the avowries in this case show no interest in land or in the goods seized, except that which arises from claiming a return ; and as I find no authority for saying that such claim of return is an intei'est 1 3 Lev. 48. " 2 Saund. 294. 158 SELBT V. BARDONS. [CHAP. III. within tlie meaning of the second resolution in Crogate's Case, it seems to me that the avowries show matter of excuse only, and that, as tc this ground of objection, the general pleas in bar of de injuria are good. In the next place, are the general pleas bad on account of any au- thority in law shown by the avowries? It is certainly stated m the third resolution in Crogate's Case, that the replication de injuria is bad where the plea justifies under an au- thority in law ; but this, if taken in the full extent of the terms used, is quite inconsistent with part of the first resolution, which states, that where the plea justifies under the proceedings of a court not of record, the general replication may be used, or where it justifies under a capias and warrant to sherifi", all may be traversed except the capias, which cannot, because it is matter of- record and cannot be tried by a jury. Now, the proceedings of a court not of record, and the war- rant to a sheriff and seizure under it, are surely as complete authorities in law as any authority disclosed by the present avowries. With re- spect to the proceedings of a court not of record, a quaere is made in Lane v. Robinson,^ whether a replication de injuria would be good ; but the point did not aiise in the case, and the Year-Books referred to in Crogate's Case warrant the conclusion that it would. In Bro. Abr. title De Son Tort Demesne, there are instances of this replication to a plea justifying by authority of law. There is also the case referred to in the argument at the bar, of Chancy v. Win and Others, in which it is laid down by Lord Holt, that de injuria is a. good replication in many cases where the plea justifies under an authority in law. I do not therefore think that the present pleas are objectionable on that ground. In the last place, are the pleas bad on account of the issue, tendered by them, being multifarious ? If this were res integra, I should have no hesitation in holding that they were bad ; and it cannot, I think, be denied that the present issues are as full of multiplicity as that in Crogate's Case, and to which the fourth resolution there applied. But I am unable to find any in- stance in which this general replication has been held bad on that ground. The objection is indeed mentioned in the cases cited from Lord Chief Justice "Willes's reports, but in no one of those cases does the decision proceed on that objection alone, and in all of them there were other undoubted objections. In Cooper v. Monke,^ the plea jus- tified under a distress for rent, and the general replication was clearly bad within the second resolution in Crogate's Case. In Cockerill «. I 2 Mod. 102 2 WiUes, 52. SECT. IV.] SELBY V. BARDONS. 159 Armstrong, the plea justified under a seizure of cattle damage feasant in a close of which the bailiffs and burgesses of Scarborough were alleged to be seised in fee ; an interest, therefore, was claimed in the land, and the general replication was bad within the same resolution ; and Lord Chief Justice Eyre, in commenting on that case in Jones v. Kitchin, expressly states that the replication was bad on that ground, and not because it put two or three things in issue, for that may hap- pen in every case where the defence arises out of several facts all operating to one point of excuse. In Bell«. Wardell,' the pleas set up a custom, which was held bad, and, therefore, any decision as to the general replication became unnecessary. It is every day's practice where the plea justifies an assault in de- fence of the possession of a close, or removing goods doing damage to it, to reply de injuria generally, and yet this objection as to the multi- farious nature of the issue would apply in both cases. The same ob- servation holds good where this general replication is used in actionfi for libel or slander, in which a justification is pleaded. Many cases are referred to in Com. Dig. tit. Pleader, (F) 18, and several following numbers, and, again, 3 (M) 29, in none of which do I find that the general form of replication has ever been held bad on account of its putting in issue several facts. The cases of Robinson v. Rayley,^ and O'Brien v. Saxon, are au- thorities to show that it cannot be objected to on that account, pro- vided the several facts so put in issue constitute one cause of defence, which, as it seems to me, they always will, where the plea is properly Dleaded, however numerous they may be, since if they constitute more than one cause the plea will be double. The present avowries state many facts undoubtedly, but they are all necessary to the defence, and combined together they show but one cause of defence, namely, that the plaintiff's goods were rightfully taken under a distress for poor-rates; and if the general replication be held bad in this case, I am at a loss to see in what case such a replica- tion can be held good, where it puts more than one fact in issue. I am compelled, tl.erefore, however reluctantly, to come to the con- clusion that the pleas in bar are good. Paeke, J.,* after stating the pleadings, proceeded as follows : — The question for our decision is, whether the objections pointed out )n the special demurrer, and which have been insisted upon in the ar- gument before us, are well founded in law? It appears to me, upon an examination of the authorities, that they are not, and that the pleas in bar are good. 1 Willes, 202. 2 i Burr. 316. ' Taunton, J., delivered no judgment, having been consulted in the cause when at the bar. 160 SELBY V. BARDONS. [CHAP. Ill It is true that these pleas in bar put in issue a great numbei' of dis- tinct facts; and it is also true that the general rule is, that where any pleading comprises several traversable facts or allegations, the whole ought not to be denied together, but one point alone disputed ; and I am fully sensible that the tendency of such a rule is to simplify the tria' of matters of fact, and to save much expense in litigation. But it is quite clear, that from a very early period in the history of the law, an exception to this general rule has been allowed with respect to all actions of trespass on the case, in the plea of the general issue ; and with respect to some actions of tort, in the replication of de injuria sua propria absque tali causa. This, replication, where it is without doubt admissible, generally, indeed it may be said always, puts in issue more than one fact, and often a great number. For instance, in an action of assault, where there is a justification that the defendant was possessed of a house ; that the plaintifiF entered ; that the defend- ant requested him to retire, and he refused ; that the defendant laid his hands on the plaintiff to remove him, and the plaintiff resisted ; — all these facts may be denied by this general replication. Com. Dig. Pleader, (F) 18. Hall v. Gerard.^ So, where an obligation to repair fences, and a breach of the fences by the plaintiff is pleaded as an ex- cuse for a trespass with cattle. Rastell, 621 a, Com. Dig. Pleader, 3 (M) 29. So, if there be a justification of assault and false imprison ment, on the ground of a felony committed, and reasonable suspicion of the plaintiff; Bro. Abr. De Son Tort, 49. So as to other justifica- tions in the like action ; Ibid. 18, 20. Under the precept of an admi- ralty court, or under a precept after plaint levied in a county or hun- dred court, Rastell, 668 a, many facts may be put in issue by the gen- eral replication, and there appears no question about the validity of such a replication ; Crogate's Case. The case of O'Brien v. Saxon is a further authority to the same effect, that many facts may be in- cluded in one issue ; and if many facts may be traversed, it can be no valid objection that more than usual are denied in any particular case. I must not, however, omit to notice, there is a dictum of Lord Chief Justice Willes in the case of Bell v. Wardell,^ that the general repli- cation of de injuria was bad on this ground, and also in that of Cock- erill V. Armstrong ; but Lord Chief Justice Eyre, in Jones v. Kitchin, disapproves of that dictum, and says that the reason is not that the replication puts two or three things in issue; and both these cases may be supported on another ground, namely, that in one a right in the nature of a right of way, in the other a seisin in fee, would be included in the traverse. » Latch, 128, 221, 273. a WiUes, 204. SECT. IV.] SELBT V. BAEDONS. 161 It seems clear to me, therefore, that this general traverse in actions of tort is not bad on account of the multiplicity of the matters put in issue; and unless there be some distinction between actions of replevin and actions of tort (a point I shall afterwards consider), the first ground of objection must fail. The second ground is, that the avowry and cognizance, claim an interest in the goods, and that for this reason the pleas in bar are not admissible. Upon the best consideration I have been able to give to the authorities on this subject, which are (many of them) obscure and contradictory, I do not think that any interest is claimed in these pleadings, within the meaning of that word in the rules laid down on this subject. In Crogate's Case, the principal authority, three cases are mentioned in which the general traverse is not allowed. The first is, where matter of record is parcel of the issue ; and that for the obvious reason, that if it were permitted, it would lead to a wrong mode of trial. The second case is, where the defendant in his own right, or as ser- vant to another (who is by that decision put on the same footing as his master), claims an interest in the land, or any common, or rent going out of the land, or any way or passage upon the land. The third case is, where, by the defendant's plea, any authority or power is mediately or immediately derived from the plaintiflF. Under this description is included any title by lease, license, or gift from the plaintiff; Bro. Abr. De Son Tort Demesne, 41 ; or lease from his lessee ; 16 Hen. VII. 3. Bro. Abr. De Son Tort Demesne, 53. It is also added in Crogate's Case, that the same law is of an authority given from the law, as to view waste ; but in the case cited from the Year Book, 12 Ed. IV. 10 b, as supporting this position, the plea stated that the plain- tiff claimed as tenant by statute merchant, and defendant justified hie entry under his right to view waste, so that matter of record would have been in issue under the general replication. This explanation of the case was given at the bar in Chancy v. Win, and in the same case Lord Holt says, that the case of a right of entry to view waste is upon a special reason, because the seisin of the lessor would be in- volved in the issue. As a general proposition, indeed, it is untrue that authority of law may not be included in the traverse, it being clear that an arrest by a private individual or a peace ofiicer is by an authority from the law; and yet pleas containing such a justification may be denied by a general traverse. Lord Coke says, after laying down these three rules, that the general plea de injuria, &c., is properly when the defendant's plea doth consist merely of matter of excuse, and of no matter of interest whatever. By this I understand him to mean an interest in the realty, or an in- 11 162 SELBT V. BABDONS, [CHAP. III. terest in, or title to chattels, averred in the plea, and existing prior to, and independently of the act complained of, which interest or title would be in issue on the general replication ; and I take the principle of the rule to be, that such alleged interest or title shall be specially traversed, and not involved in a general issue. It is contended, however, on the part of the defendants, that the interest here meant is one that the party would acquire by the seizure which forms the subject of complaint, and that the replication would be improper whenever the defendant justified under any proceedings by which, if rightful, he would acquire an interest or a special property. If this were the meaning of the term " interest," a general replica- tion would be bad to a plea to an action of trespass justifying seizure ander process of the Admiralty Court, or of any inferior jurisdiction not of record. So in case of a justification of taking beasts in withernam (16 Hen. VII. 2). So of a justification of seizure for salvage ; Lilly's Entries, p. 349. And yet in all these cases it appears to be settled that the general traverse is permitted. It seems to me, therefore, that the objection is applicable to those cases only where a party justifies as having an interest, or under one who has an interest, by title at the time of the act complained of, which interest would therefore be put in issue by the general traverse. No case or precedent cited on the argument, or any that I am aware of, is against this construction of the rule. In Cockerill v. Armstrong, indeed, before referred to, which was the case of a distress, damage- feasant, and impounding. Lord Chief Justice Willes says (among other observations) that the taking away and impounding seemed to imply a claim of right ; but there the plea stated a seisin in fee in the bailiffs of Scarborough, which would have been in issue ; and it is on that ground that the decision of the court is to be supported ; and so Lord Chief Justice Eyre seems to have thought in Jones v. Kitchin. It appears to me, then, that in an action of trespass de bonis aspor- iatis, a similar justification to the present might be traversed by the general replication, as no matter of interest in the goods seized would be included in that traverse ; and the only remaining question is, whether it makes any difference that the form of action is in replevin. Some modern treatises lay it down as a general rule, that this form f)f pleading is inadmissible altogether in replevin ; ^ but the authorities cited for this position do not bear it out. Finch's Law, 396, is one ; after stating that in all actions of trespass merely transitory, although the defendant pleads any special matter, the plaintiff may reply gen- erally, except where the justification is by matter of record or writing 1 Chitty on Pleading, 622, 5th ed. SECT. 17.] SELBT V. BARDONS. 163 (by wLich he means writing in the like nature) or by some title or license from the plaintiff himself, he proceeds to state that in all local trespasses where title is claimed, the special matter must be answered ; and " in replevin, which is real, the title or special matter must be always traversed." I do not think this means to include all replevins, but those only where the avowry claims title to the realty. In Jones V. Kitchin, a case of replevin, the plea in bar was held bad, not because it was not pleadable in replevin, but because it would put in issue a title or interest in land ; and the proposition in the judgment in that case, that this plea could only be allowed in actions for personal in- juries, is certainly too limited, as many authorities have been cited to show that it is applicable to trespasses to goods. Indeed, it was conceded in the argument, that in some cases of replevin such a plea in bar would be admissible ; and if admissible at all, there seems to me no reason why it should not be governed by the same rules as in an action of trespass to goods ; viz., that it should not be admitted where matter of record, title, interest, or authority from the plaintiff should be put in issue by that plea in bar, but it should be in all others. And there are some precedents in actions of replevin, of such a plea in bar, which were cited on the. argument. In Lilly's Entries, 349, there was an avowry for salvage, with a prayer of judgment of a return, and such a plea in bar. In Wells v. Cotterill,* there was a sim- ilar plea in bar, which was held bad on the ground that it traversed matter of title, but it does not appear to have been objected to for the general reason that such a plea was inadmissible in that form of action. Upon the whole, therefore, my opinion is, that the plea in bar is good in this case, as it puts in issue no matter of title or interest in the goods, and therefore that there should be judgment for the plaintiff. LoED Tbntbeden, C. J. I consider the system of special pleading, which prevails in the law of England, to be founded upon and to be adapted to the peculiar mode of trial established in this country, the trial by the jury ; and that its object is to bring the case, before trial, to a simple, and as far as practicable, a single question of fact, whereby not only the duties of the jury may be more easily and conveniently discharged, but the expense to be incurred by the suitors may be ren- dered as small as possible. And experience has abundantly proved, that both these objects are better attained where the issues and matters of fact to be tried are narrowed and brought to a point by the previous proceedings and pleadings on the record, than where the matter is left at large to be established by proof, either by the plaintiff in main- 1 3 Lev 48. Lev. Entr. 185. 164 SELBr V. BARDONS. [CHAP. IIL tenanoe of his action, or by the defendant in resisting the claim made upon him. I am sensible that this principle has not always been kept in view by the courts, and that there have been, in practice, many in- stances of departure from it, founded upon very nice and subtle distinctions. The decisions of our predecessors, the Judges of former times, ought to be followed and adopted, unless we can see very clearly that they are erroneous, for otherwise there will be no certainty in the administration of the law ; and if I had found the question in this cause distinctly decided in any former case, I should have thought it my duty to abide by the decision, especially in a matter regarding rather the course of proceeding than a question of pure law. But after an attentive consideration of the cases quoted at the bar, and of such others as I have been able to meet with after a very diligent search, I do not find that this has been done. I find, indeed, many decisions and dicta not easily reconcilable with each other, founded, as [ have already observed, upon very nice and subtle grounds, and not capable of being reduced to any plain, or, to my mind, any solid prin- ciple. There is one matter in which all the authorities in our books agree. If an action of trespass be brought for turning sheep or cattle to feed upon land in the possession of the plaintiff, and the defendant justifies the act by pleading that A. B., his landlord, was seised of certain lands, and demised the same to him for a term not yet expired, and that he thereupon entered and was possessed of the demised lands ; and then goes on to allege, in the ordinary form of prescription, that his landlord had right of common on the plaintiff's land for cattle levant and couchant on the demised land, and that he put the cattle on the plaintiff's land in the exercise of that right ; in such a case, I say, it is agreed by all the decisions that the plaintiff cannot reply generally de injuria sua propria absque tali causa, but must traverse some one of the facts alleged in the plea, admitting, for the purpose of the cause, all the others. In such a case, at least three separate and distinct facts are alleged : the seisin of the landlord, the demise to the defendant, the immemorial right of common. Every one of these three is necessary to the defence ; but the plaintiff must elect which of them he will deny, and when he has so done, the cause goes down to the jury for the trial of that single fact ; the jury are not embarrassed by a multiplicity of matter, and the parties are relieved from much of the expense of proof, to which they would be subjected if all the facts alleged in the plea were to be matters of proof and controversy before the jury. In the case now before the court, the avowry alleged that a poor-rate was made ; that it was allowed by the justices ; that the plaintiff was assessed in it for his messuag.e in which the distress was taken ; that this messuage was within the parish ; that payment of tha SECT. IT.J SELBT V. BARDONS. 165 assessment was demanded and refused ; that a warrant of justices was issued to levy it, and that the goods were taken under the authority of that warrant. Many distinct and independent facts are thus alleged in the avowry, every one of which is necessary to sustain the right to take the goods, and to entitle the defendant to have them returned to him ; and if this general plea in bar be good, the defendant must prove every one of them at the trial, and the jury must consider and decide upon each before a verdict can properly be given. Now, I think I might safely venture to ask any plain and unlettered man, whether he could find any difference between the two cases that I have put, either in common understanding or in sound logic. For myself, I must say that I can find none. If no such distinction exists or can be found, why should a different rule prevail ? why should all the matters of fact be sent together to the jury in the one case and not in the other? To this question I am persuaded that no satisfactory answer could be given to the mind of an unlettered man. To a Judge, who is to act upon the decisions of his predecessors, a binding if not a satisfactory answer might be given, by showing that the matter had been already so decided ; but this, as I conceive, has not yet been done. I find it decided, that where, in an action of trespass, the defendant's plea contains merely matter of excuse, and not matter of right, a re- plication in this form may be good : and to this there may, perhaps, be no objection in principle, because the matter of excuse may, and gen- erally will be, the only matter to be tried, any previous allegation being a matter of inducement only. I find it also laid down, that where the defendant claims any interest in land by his plea, this general replication will not be good ; but it is said that it may be otherwise in the case of goods. Why there should be such a dis- tinction I am not able to comprehend. The defendant in this case does, certainly in one of the avowries, claim an interest in the goods, because he claims to have them returned to him ; but I do not rely on this. For the reasons which I have thus, perhaps imperfectly, given, and which are fonn,ded upon what I conceive to be principle, and not upon authorities, and which, therefore, render it unnecessary for me to advert to particular cases, I feel myself reluctantly bound to differ irom my two learned Brothers ; and it is a satisfaction to me to know that my opinion, which it is my duty to give as I entertain it, cannot preju- dice the plaintiff, because, notwithstanding my opinion, the judgment of the Court on these demurrers must be given for the plaintiff. I would only add, that my view of the case would be the same if this were a replication to a plea in trespass, or if the defendant had pleaded instead of avowing, and so had not claimed a return of the goods. Judgment for the plaintiff? » Affirmed in Exchequer Chamber, 1 C. & M. 500; b. o. 9 Bing 756. —Ed. 166 PIGOTT V. KEMP. [CHAP. III. - \ PIGOTT V. KEMP and Otsehs. In the Exchbquee, Michaelmas Teem, 1832. [Reported in 3 Tyrwhitt, 128.] Trespass for assault and battery. The fifth plea stated, that J. E. and S. B., before and at the several times when, &c., were j)ossessed of a certain dwelling-house and close, with the appurtenances, situate and being at &c., and being so possessed thereof, the said plaintifi", just before the said several times when &o., to wit, on &c., was unlawfully in the possession of the said last-mentioned dwelling-house, and with force and arms making a great noise and disturbance therein, and at the said times when &c. was therein making such noise and disturb- ance without the leave or license, and against the will of the said J. E. and S. B., and thereupon the said defendants, as the servants of the said J. E. and S. B., and by their command, then and there requested the said plaintiff to cease making his said noise and disturbance, and to go and depart from and out of the said dwelling-house and close, which the said plaintiff then and there wholly refused to do, where- upon the said defendants, as the servants of the said J. E. and S. B., and by their command, in the defence of the possession of the said last- mentioned dwelling-house, gently laid their hands on the said plaintiff in order to remove him from the dwelling-house ; and because he the said plaintiff was then and there armed with divers, to wit, two loaded pistols, and then and there assaulted the said defendants with the said pistols, and used violent and menacing language and gestures, and put them the said defendants in alarm and peril of their lives, they the said defendants, in order to protect and defend themselves, and because they could not otherwise protect and defend themselves, wrested and took the said pistols from the said plaintiff, and in so doing necessarily and unavoidably seized and laid hold of the said plaintiff by his arms and a little squeezed the same, and necessarily and unavoidably gave and struck the said plaintiff a few blows and strokes, and necessarily and unavoidably a little shook and gently pulled about him the said plaintiff and necessarily and unavoidably a little rent, tore, and damaged the clothes and wearing apparel of the said plaintiff, and necessarily and unavoidably a little beat, bruised, wounded, and ill-treated him the said plaintiff, doing no unnecessary damage to the said plaintiff on the occasion last aforesaid; which are the said supposed trespasses in the introductory part &c. mentioned. Replication de injuria, and special demurrer thereto. The points oiarked to be contended by defendant were, first, the duplicity of aEGT. IV.] PIGOTT V. KEMP. 167 the replication, in not admitting or protesting any of the allegations in the plea, but involving them all in the issue. Next, that the replica- tion put in issue authority and command, which ought to have been separately traversed ; and also put in issue with other matter title and interest in land. JSyles, in support of the demurrer. This replication is multifarious, in imposing on the defendants a necessity to prove eight distinct alle- gations stated in their plea ; so that while the plaintiff may content himself with adducing evidence to disprove any one of them, the defendants must go to trial prepared to support every one, without knowing the particular one against which the plaintiff directs his attack. [Baylet, B. The putting in issue a multiplicity of facts in one plea does not make it bad if they all lead to one conclusion, and together amount to but one defence ; Selby v. Bardons.J That rule was the ground of the decision in that case (though Lord Tenterden differed), and previously in Robinson v. Rayley, and O'Brien v. Saxon ; but in all those cases possession of the party at the time was alleged ; whereas it is wanting in this plea, which alleges many distinct matters not reducible to one proposition. [Loed Lyndhuest, C. B. The plea imports an actual possession by Easto and Bullen as well as the plain- tiff at the time ; and the replication is constantly in this form, where the defendants rely on possession only. Is there any doubt except as to the command ? Bayley, B. Are the facts in this plea any more than one excuse for a trespass ?] But the issue, if not multifarious, involves authority and command. Now command generally cannot be involved in the issue, but, if at all, must be separately traversed. The text-books say, if a man justify by warrant of another, de injuria is not proper.^ Mr. Serjt. Williams, in 2 Saunders, 295 b, adopts the declaration of Eyre, C. J., in Jones y. Kitchin, that that replication is not allowed, if the plea relate " to any commandment." [Bayley, B. Crogate's Case shows that an author- ity mediately or immediately emanating from the plaintiff must not be involved in the issue. Here the command is from a stranger.] It is diiEoult to perceive why, if the command of the plaintiff may not be involved in the issue, tlie command of a stranger may. In both cases two questions are involved, — the existence of the party to give the command, and that of the command itself But before, as well as after, Crogate's Case, there are authorities to show that a command cannot be so traversed, though not derived from the plaintiff. Fitz- herbert's Abridgment, tit. Issue, pi. 163. Brooke's Abridgment, tit. De Son Tort Demesne, pi, 42. Again, 23 Hen. VIII. c. 5, § 11, implies ' Stephen on PI. first ed. 188, 276 ; 1 Ch. on PI. 514. 168 PIGOTT V. KEMP. [CHAP. IIL that the general replication de injuria, specially provided by that act in actions for trespasses done by authority of the commissioners of sewers, was not good at law. [Loed Ltndhubst, C. B. Tliat might have been inserted to remove all doubt.J Finch's Law, 395, states that a warrant from a justice cannot be so traversed, and it is put on the same ground as a license from the plaintiff". Chancy v. Win is the same way. The justice's warrant is either a matter of record or not ; if it is, Selby v. Bardons is wrong ; if it is not, then the com- mand of a stranger is not traversable by the general replication de injuria. [Loed Ltwdhuest, C. B. On the principle laid down there by Lord Tenterden himself, we should, in cases like this, adhere to the decisions. What a justice returns to quarter sessions may be matter of record. Batlet, B. I am not aware that a single justice forms necessarily a court of record ; though, if he acts judicially, it may be diiferent from the committing a man charged with an offence. In the case from Brooke, the Court held that it should he put in issue that the ancestor did not hold by knight's service, or, that he did not com- mand ; but that the tenure and command could not both be put in issue.] There is no intimation in the above authorities that the com- mand to be so traversable must be derived mediately or immediately from the plaintiff.^ [Batlet, B. Where defendant claims by authority from the plaintiff himself, de injuria generally is not a good replication.] Secondly, a claim of interest in land being apparent on the face of the plea, the traverse in this replication, though general, involves the title of Easto and Bullen to the possession of land, and is therefore contrary to the second resolution in Crogate's Case. In Hall v. Ge- rard,^ cited by Parke, J., in Selby v. Bardons, the fact of possession was held to be traversable ; but the party alleged to have possession was, in that case, removed from the actual enjoyment of the land. Here, unless Easto and Bullen were rightfully in possession, their command would be no defence ; now not even they are alleged to have been actually in possession of the land, but the plaintiff is stated to have been in possession ; and as the allegation that his possession was unlaw- ful is in fact traversed by him, Easto and Bullen appear to have had only a right of possession, or a possessory title which cannot be trav- ersed generally. [Loed Ltndhtjest, C. B. All three were in possession. Batlet, B. The mistake of stating the plaintiff to be in possession may be so material that we might not give judgment on such a record.^] The title of the plaintiff is also involved in this issue, for 1 Comyns' Digest, tit. Pleader (F. 22 ), was cited by Bayley, B. 2 Latch, 221. ' It was here agreed that it should be considered as if the defendant had pleaded that plaintiff was wrongfully there making noise, &c. SECT. IV.J PIGOTT V. KEBIP. 169 the title to the land is not laid in the defendants, but in other persons, and the foot and legality of the plaintiff's possession are in issue, and must be proved as matter of substance. They are not mere induce- ments, as in Taylor v. Markham. [Baylby, B. The plea is a chain of many links or facts making a single defence, and the plaintiff was not bound to single out any particular one. Loed Lyndhukst, C. B. All the facts stated in the plea conduct to, and terminate in, the bat- tery, which is the subject of charge; so that, independently of the command, the whole of them constitute one defence.] ■BiffgfS Andrews, contra, was directed to confine himself to the ques- tion whether the command could be traversed by the general replica- tion. Selby V. Bardons is directly in the aifirmative, the command being involved in that issue. All the cases have distinguished between justification under matters of record, and under things not matter of record. Chancy v. Win is also in point, for Lord Holt took notice of the command being there traversed. [Bayley, B. That issue was said to involve matters of record, for one defendant justified as a com- missioner of excise, and the other as hia servant under his warrant.] In Archbishop of Canterbury v. Kemp,' Coke said, arguendo, that (le injuria was not a good replication where the defendant's plea claims for him an interest in the freehold; "but where one claims not any in- terest, but justifies by command or authority derived from another, it is otherwise." Doctrina Placitandi (pp. 113, 115) treats an authority derived from the plaintiff himself as distinct from one derived from another person, for the former affords a defence alone, while the latter is only one link in a chain of facts which, together, compose one justi- fication. The defendants go too far in citing cases tending to show that the command could not be traversed at all, for Chambers v. Don- aldson ^ overturned a similar doctrine in trespass to real property. This plea states merely one excuse resulting from a series of facts pleaded. [Bayley, B. If the command was not traversable, a man might justify the expulsion of a party in possession under the command of a perfect stranger. If the command was traversable, but only in the manner contended for, the result would be that, in trespass against a master and his servant justifying under his authority, the traverse in the replication might be general as against the master, but not against the servant. However, in many actions brought against several defend- ants for taking goods, all rely on a judgment recovered and fi. fa. issued against the plaintiffs, but justify in different characters, e. g., one as sherifl^ another as plaintiff, and others as acting under the sheriff's » Cro. El. 539. 2 11 East, 65. 170 PENN V. WARD. [CHAP. III. authority. Is it not common to reply, admitting the judgment and writ, and stating that the defendants, de injuria sua propria et absque residuo causae, committed the trespasses ; thus, by one general trav- erse, involving in one issue the seizure as well as the command ?] ^ The Court expressed a strong opinion against the demurrer, but, Under the circumstances, gave leave to withdraw it, and amend, on payment of costs. PENN V. WARD. Ik the ExcHEQtTBK, Teinitt Teem, 1835. \Beportea in 2 Crompton, Meeson, df Roscoe, 338.] Teespass for assault and battery. Pleas, first, not guilty ; secondly, that the plaintifi" was the apprentice of the defendant, and conducted himself improperly and saucily, wherefore the defendant moderately chastised him, as he was justified in doing, &c. Replication to the lat- ter plea, de injuria ; on which issue was joined. At the trial, before Tindal, C. J., at the last Warwick Assizes, it was proved that the plain- tifi" was the defendant's apprentice, and having behaved in a saucy manner, was beaten by the defendant; and the plaintiflT's counsel pro- posed to show that the defendant, in beating him, had used excessive and unjustifiable violence. It was objected that such evidence could not be given on these pleadings, there being no replication of excess. The learned Judge, however, admitted the evidence, and left it to the jury, who found a verdict for the plaintiflT, damages one shilling. In Easter term, Adams, Serjt., obtained a rule nisi for a new trial on the ground of misdirection, contending that the question of excess was not open on these pleadings ; and cited Dale v. Wood,^ Franks v. Morris,' Piggott v. Kemp, Selby v. Bardons, Bowen v. Parry ,^ Lamb v. Burnett.^ Cause was now shown by Humfrey and Miller. The jury have fownd that the defendant cor- rected the plaintifi" as an apprentice, but not moderately. And it ia submitted that, on these pleadings, not only the cause alleged in tho plea, but also the moderateness of the chastisement, is put in issue. The replication de injuria is a good answer to any plea which justifies on matter of fact only; Com. Dig. Pleader, F. 19; Jones v. Kitohin. 1 See an instance, 3 Chitty on Pleading, 1204, 4th ed. '!■ 7 B. Moore, 33. 3 10 East, 81, u. « 1 Carr. &P. 394. » 1 C. & J. 291. SECT. IT.] PENN V. WARD. 171 One of the facts stated by the defendant in his plea, and indeed the essential part of his excuse, was, that the chastisement was moderate ; that fact he was bound to establish, and it was properly left to the jury to decide upon. [Alderson, B. The party states certain grounds on which he says he was authorized to inflict a moderate punishment ; does the replication do more than deny the existence of those grounds?] A chastisement disproportionate to the offence is not excused by any cause. Lord Chief Baron Gilbert, in his " History of the Common Pleas," ' puts a case expressly in point : — " So, in an action of assault and battery, the defendant pleads that the plaintiff neglected his ser- vice, per quod moderate castigavit ; the plaintiff replies quod non moderate castigavit, and the issue was found for the plaintiff; for, though this be an informal traverse, and bad on demurrer, being rather a traverse of the chastisement than of the moderate manner of doing it, and the right traverse should have been de injuria sua propria ab- sque tali causa; yet after verdict it is good, because the jury have ascertained that he did beat him immoderately." [Aldbrson, B. No doubt de injuria puts in issue the whole cause ; the question is, whether the moderate chastisement is part of the cause. Suppose the case of a plea of son assault demesne ; do you mean to say that the replication de injuria would put in issue the allegation that the .defendant molliter manus imposuit, and a little unavoidably, and so forth ?] In a late case of Reece v. Taylor,^ to a declaration for assault and false impris- onment, the defendant justified in defence of his possession, with an additional allegation that the plaintiff assaulted him in the presence of a police officer; and the Court held, on a replication de injuria, that the defendant was bound to prove the latter allegation ; and Littledale, J., is reported to have said, that, under the plea oi son assault de mesne, the defendant must show an assault by the plaintiff commensurate with the act complained of by him. So, in Phillips v. Howgate,' where the defendant justified an arrest under process of the Court, and alleged that the plaintiff, having conducted himself violently while in custody, he therefore struck him to prevent his escape, it was held, on the repli-- cation de injuria, that the defendant was bound to prove the violent conduct of the plaintiff. [Aldeeson, B. There the violent conduct alone could justify the striking of which the plaintiff complained, so that it went to form a material part of the excuse.] In Cockcroft v. Smith,* the court appears to have been of opinion that immoderate vio- lence could not be justified under a plea of son assault demesne. The 1 P. 154, referring to Awbry v. James, 1 Sid. 444; 1 Ventr. 70. t 4 Nev. & Man. 469. 3 5 b. & Aid. 220. ■• 11 Mod. 43. 172 PENN V. WARD. [CHAP. III. cases cited on the other side are not conclusive against the plaintiff! In Dale v. Wood, and Piggott v. KemjJ, the point under consideration was quite different. In Lamb v. Burnett, the only question was, whether the justification was made out in other respects, independently of the point now in dispute. [Aldeeson, B. Mr. Baron Bay ley only left it to the jury in that case to consider the cause alleged by the defendant, and not the excessive violence; and Lord Lyndhurst appears to have thought the excess ought to have been replied. So far, therefore, that case is an authority.] Adams, Seijt., and G. Hayes, in support of the rule, were stopped by the Court. BoLLAND, B. The Court is of opinion that, on these pleadings, the plaintiff" had no power to put in issue the moderateness of the chas- tisement inflicted by the defendant, but was bound to reply the excess. The case cited from Lord Chief Baron Gilbert would undoubtedly have been an authority for the plaintifij if it had not been impeached by later decisions, which have laid it down that the excess must be replied. I may observe that, since the case of Reece v. Taylor was decided, my Brother Littledale has altered the opinion which he is reported to have expressed on that occasion, that the plea of son as- sault demesne required the defendant to prove the moderation of his conduct. The only question is, whether this replication does more than put in issue the cause alleged in the plea. "What is that cause ? The right which the defendant had, under the circumstances, to inflict a moderate chastisement on his appi-entice. The plea says in effect, " I had a right to beat my apprentice because he misconducted himself." That is, on the face of it, a satisfactory answer to the plaintiff''s com- plaint ; and if he meant to admit that he had misconducted himself, but to chai-ge the defendant with unwarrantable violence, he should have replied that he had not so misconducted himself as to warrant such a beating. I think, therefore, that the direction of the learned Judge was wrong, and that the rule must be made absolute for a new trial. Aldbbson, B. The plaintiff complains of a battery ; the defendant says it was the fruit of a moderate and suitable chastisement, and goes on to assign the cause for which he had a right to inflict it. That cause is, that the plaintiff", being his apprentice, behaved himself improperly and disobediently ; and, being proved, it amounted to a good justifica- tion. The plaintiff, by his replication, denies that cause, and says the defendant acted, not for the cause he has assigned, but of his own wrong. He puts in issue the cause, not the character, of the chastise- ment — that is to say, whether or no he misconducted himself as an SECT. IV. j ISAAC V. PARRAR. 173 apprentice. He had no right, therefore, to go beyond this issue, and raise a question before the jury as to the excess. GuENET, B., concurred. Jiule absolute? ISAAC V. FARRAR. Ik the Exchequer, Hilary Term, 1836. [Reported in 1 Meeson ^ Welshy, 65.] Assumpsit by the indorsee against the maker of a promissory note For £250, payable three months after date to the order of the maker, and by him indorsed to one Henry Richardson, who indorsed it to the plaintiff. Plea, that before the making of the said promissory note, to wit, on &c., a certain advertisement had been and was inserted in a certain aewspaper, to wit, the Morning Herald, to the tenor and effect follow- ing, viz. : " Money to lend upon personal security. — Noblemen, clergy- men, and persons of responsibility, requiring the temporary advance of money, can be immediately accommodated with loans to any amount, at a very low rate of interest ; application to be made in the first instance in writing, addressed to Mr. Anderson, Fludyer Street, Westminster." And the defendant averred, that in consequence of the advertisement he did, to wit, on &c., call at the said place, to wit, &c., and there saw one Charles Anderson, and that in consequence of the representations made to him by the said C. Anderson, he the defendant was induced to draw and deliver, and he did then draw and deliver, to the said An- derson, two promissory notes, whereby and by each of which the defend- ant promised to pay to his own order the sum of £250, three months after the date thereof, (one of them being the said note in the said first count mentioned,) upon the faith of and promise from the said Charles Anderson, that the said notes should be renewed, when due, for the space of two years, and that he should receive from the said Charles Anderson, on a certain day, to wit, the Friday then next following, being, to wit, the first day of May, 1835, the amount of the said notes, deducting dis- count and stamp. And the defendant further saith, that the said Charles 1 Oakes v. Wood, 3 M. & W. 150; Lambert ■-. Hodgson, 1 Bing. 317; Lamb v. Burnett, 1 C. & J. 291 ; Bowen ii. Parry, 1 C. & P. 394 ; Dale v. Work, 7 B. Moore, 33 ; Oystead v. Shed, 12 Mass. 506 ; Great Falls Co. u. Wooster, 15 N. H. 412 ; Tom- linson v. Darnall, 2 Head, 538, accord; Ayres v. Kelly, 11 111. 17; Fisher v. Bridge, 4Blackf. 618; Hannen w. Edes, 15 Mass. 347; Loring y. Aborn, 4 Oush. 608; Curtis V. Carson, 2 N. H. 539; Bennett v. Appleton, 25 Wend. 371 ; Elliot v. Kilburn, 2 Vt. 470 ; Mellen v. Thompson, 32 Vt. 407, contra. See Dean v. Taylor, 11 Ex. 68. —Ed. 174 ISAAC V. PARRAE. [CHAP. III. Anderson did not nor would, either on Friday the said first day of May, 1835, or at any other time, (although often requested so to do,) pay to the said defendant the amount of the said notes, deducting as afore- said, or any sum of money whatever ; but on the contrary thereof, the defendant saith, that he the said defendant, to Wit, on the said first day of May, 1835, by appointment of the said Charles Anderson, went to the said place, to wit, 12 Fludyer Street, but the said Charles Anderson was not, nor was any such person, either then or at any time afterwards, there to be found, and that the said transaction was a gross fraud and imposition upon him the defendant, and that the note was indorsed to the plaintiff without consideration, and that he holds the same without value or consideration, and that there never was and is not any consideration or value on the said note between any parties thereto ; and" he further saith, that the said Henry Richardson, and the said plaintifi", and each of them, at the several and respective times when the said note in the said first count mentioned was so indorsed and delivered to them respectively, as in the said first count mentioned, was privy to and had full knowledge and notice of the said transaction in this plea detailed, and of the said fraud and imposition : and this the defendant is ready to verify. Replication. That the defendant of his own wrong, and without the cause by him in that plea alleged, broke his said promise in the said first count mentioned, in manner and form as the said plaintifi" hath in the said first count of the said declaration in that behalf complained .igainst him, &g. Special demurrer, assigning for causes — First, that the replication de injuria is a bad plea to the defendant's plea in assumpsit. Secondly, that the replication is bad for duplicity, because it is too large, and puts in issue all the several facts alleged by the plea, instead of putting in issue the point to be tried between the parties. Thirdly, that the facts of the fraud and notice to the plaintifiT, and the want of consideration for the note in the plaintiff's hands, alleged by the plea, are distinct and separable facts, on either of which the plaintiff might and ought to have tendered an issue, and he cannot by his replication put both in issue ; and the replication, because it puts both such facts in issue, is bad. The case was argued in the present term, by Hoggins^ in support of the demurrer ; and by Humfrey, contra, in support of the repli- cation. The court took time to consider, and the judgment of the court was now delivered by Lord Abingbe, C. B. On this demurrer to the replication, two- objections were made : First, that its form was improper, as the induce- StCT. ly.J ISAAC V. FARBAE. 175 ment of de injuria, &c., was inapplicable to an action of assumpsit ; and, secondly, th;it it was bad because it was multifarious, and put in issue several distinct facts, each of which would, if disproved, be decisive of the action. We think the replication is good, notwithstanding these objections. This form, though most commonly used in actions of trespass, or trespass on the case for an injury, is not inappropriate to an action cf trespass on the case for a breach of promise, where the plea admits a breach, and contains only matter of excuse for having committed that breach. The defendant's breach of promise may be considered as a wrong done, and the matter included under the general traverse absque tali causa, and thereby denied, as matter of excuse alleged for the breach.^ — Per Lord Ellenborough, Barnes v. Hunt.^ No case in which this form of replication has been held to be im- proper, resembles the present. In Crisp v. Griffiths,' the plea was not matter of excuse for the breach of contract, but of subsequent satis- faction for that breach. In Solly v. Neish,* the plea was a denial of the promise. So, in Whittaker v. Mason,^ the plea denied the contract as alleged ; and although the Court intimated that it might be doubt- ful whether a traverse in this form was applicable to any action on promises, they abstained from deciding that question. On the other hand, in the case of Noel w. Rich,* this Court expressed a strong opinion that this general form of traverse, in a case similar to the present, was proper : and we think that it is ; for the plea confesses that the defend- ant made the note in question and indorsed it to Richardson, who indorsed it to the plaintiff, which constitutes a prima facie case of liability, and an implied promise to pay the amount to the plaintiff; and it avoids the effect of that admission by showing that the note was made and indorsed without value bona fide paid, whereby the defendant was excused from performing that promise. As to the objection that the replication is multifarious, the facts contained in the plea, though they are several, constitute one ground of defence ; and the rule of pleading is not that the issue must be joined on a single fact, but on a single point of defence. This was laid down by Lord Mansfield in Robinson v. Raley, by the Court of King's Bench in O'Brien v. Saxon, and by Mr. Justice Bayley in the case of Can- V. Hinchcliffe.' In each of these cases, the facts there allowed to be included in one issue, as amounting to a single ground of defence, were several. In the first, the facts that the cattle were commonable, 1 See Coffin v. Bassett, 2 Pick, 857, contra. — Ed. 2 n East, 455. 3 2 0. Mee. & Roa. 169. ■• 2 C. Mee. & Eos. 355. 6 2 imgh, New C. 359 ; s. c. 2 Scott. ' 2 C. Mee. & Eos. 360. 1 71) &E. 42;4B&C. 647 176 ISAAC V. FAERAR. [CHAP. III. and levant and couchant, constituted one proposition, viz., that the cat- tle were entitled to common ; in the second, the trading, petitioning creditor's debt, and act of bankruptcy, formed one point of defence, viz., the bankruptcy of the plaintiff; and in the last, the fects of the goods, for the price of which the action was brought, being sold by an ageiit as principal, and a set-off of a debt due from the agent, constituted the defence of payment, or satisfaction of the plaintiff's demand. So, in the present case, the plea contains in substance one ground of defence only, that is, that the plaintiff was not the bona fide holder for value, although several facts are necessarily averred as constituting parts of it. Every indorsee of a bill has his own title, and that of each intermediate party ; and if he or any of such parties gave value for the bill without fraud, he is a holder ^or value. The plea in this case alleges in effect that the defendant had no value for making the note, and that neither the first indorsee, nor the second, received the bill bona fide, which is only a statement, necessary in point of law, of the several facts constituting the defence, that the plaintiff is not a bona fide holder for value. If this replication were not allowed, some inconvenience would follow, for in every action on a bill or note it would be competent for a defendant, by alleging fraud, or such other circumstance as would throw the proof of value on the indorsee, to compel him to prove it. For it would seldom happen that a plaintiff, if he were tied down to dispute one fact, could take issue on such an allegation ; and then he would be obliged to take an issue which would admit the fraud, and throw the proof of value on himself, thereby placing him in a worse situation than before the late rules. On the other hand, if this repli- cation be allowed, the indorsee is left in the same situation as he was before, with the additional advantage that he is made acquainted with the defence intended to be set up, which was one grand object of the pleading regulations ; and he will be called upon to prove value given or not, accordingly as the defendant shall prove or fail in the proof of the allegation of fraud, as he would before under th.e general issue. We do not, however, decide this case on the ground of convenience, but in conformity with the established rules of pleading ; and we are of opinion that the demurrer must be overruled. Judgment for the plaintiff } 1 Noel V. Rich, 2 C. M. & R. 360; Curtis v. Headfort, 8 Dowl. 496 ; Humphreyi V. O'Connell, 7 M. & W; 370; Watson v. "Wilts, 5 A. & E. 237 ; Griffin v. Yates, 2 B. N. C. 579 ; Scott v. Chappelow, 4 M. & G. 886 ; Basan & Arnold, 6 M. & "W. 559 • Hemingway v. Hamilton, 4 M. & W. 115 (semble) ; Whitehead v. Walker, 9 M. & W 506 ; Mitchell v. Cragg, 10 M. & W. 867 ; Cowper v. Garbett, 18 M. & W. 33. — te!> 81SCT. IV.J FISHER V. WOOD. 177 FISHER V. "WOOD. ' In the Exchequer, Teinitt Teem, 1841. [Reported in 1 Dowling, New Series, 54.] Assumpsit by drawer against acceptor of a bill of exchange, payable one month after date. The declaration was in the usual form. Plea, that, before the time of making of the bill, the defendant wrote his name across the paper whereon the same is written, in the form of an acceptance of a bill of exchange, and then consented that the plaintiff should draw thereon a bill of exchange, directed to the defendant, requiring him to pay the sum of, &c., at two months after the date thereof; yet the plaintiff, in violation of the said agreement, made the said bill of exchange payable one month after the date thereof Replication de injuria. Special demurrer, assigning for cause that the plea is in denial of the promise, and not in excuse. Whitehurst, in support of the demurrer. It is clearly established, that the replication de injuria is only applicable where the plea dis- closes matter in excuse of the breach of promise, or duty alleged. Here, the plea is in denial of the contract stated in the declaration. Cleworth v. Pickford^ and Elwell v. The Grand Junction Railway Company^ are authorities in point. Paeke, B. The plea is an argumentative denial that the defendant accepted the bill, payable at two months after date. It ought to have concluded with a special traverse. The court called upon Gray, in support of the replication. The replication de injuria is, in some cases, allowable, even though the plea amounts to a denial of the contract alleged in the declaration. In Basan v. Arnold,' which was an action by indorsee against acceptor of a bill of exchange, the defendant pleaded that he accepted the bill for the accommodation of B., who indorsed, and delivered it to the plaintiff, upon an agreement to discount the same, and pay the value to him, which the plaintiff neglected to do, and it was held, that de injuria was a good repli- cation. Paeke, B. That plea disclosed matter which excused the payment. Here, the plea is a denial of the contract. It is like the case of a man 1 7 M. & W. 314. « 5 M. & W. 669. » 6 M. & W. 559. 1? 178 SALTER V. PURCHBLL. [CHAP. Ill giving an authority to his agent to accept one kind of bill, who, instead of doing so, accepts another. You had better amend. Grray elected to amend,* SALTER V. PURCHELL. In the Exchequer Chambee, Novembek 29, 1841. [Reported in 11 Law Journal Reports, Exchequer Chamber, 432.'^] Debt for goods sold and delivered. Plea, that the plaintiff sold the goods through the medium of one G. M., who was the plaintiff's factor, and intrusted by him with the goods, as G. M.'s own goods, by the plaintiff's consent; and that the defendant had no means of knowing that the plaintiff was the owner of the goods. The plea then stated a set-off of a debt due from G. M. to the defendant. Replication : That the defendant, of his own wrong, and without the cause by him alleged, neglected to pay the sum due. Martin, for the plaintiff in error (the defendant below). The plain- tiff in error will contend, first, that the replication de injuria is inadmissible in actions of debt; secondly, that it cannot be allowed in the present case, where the plea does not amount to matter of excuse, but states an authority from the plaintiff. As to the first point, he cited Selby v. Bardons, Crogate's case. Com. Dig. " Pleader," (F) 18 to (F) 24, Craft v. Boite,^ White v. Stubbs,* Jones v. Kitchin, Richards V. Murdock,^ Robinson v. Rayley, Isaac v. Farrar, O'Brien v. Saxon, Carr v. Hinchliff,' Griffin v. Yates,' Watson v. Wilks,^ Brancker v. Moly- neux.' Secondly, the replication de injuria is admissible only where the plea constitutes an excuse. In this case, the plea does not amount to an excuse, for it is pleaded to an indebitatus count, which can be sustained only where there is a complete debt ; and where a complete debt exists, there can be no excuse for not paying it. The plea amounts to a denial that the defendant was indebted to the plaintiff at the time of action brought. That being so, the replication de injuria is bad ; 1 Whittaker «. Mason, 2 B. N. C. 359 ; Elwell v. Gr. J. R. R., 5 M. & W. 669 ; Cleworth v. Pickford, 7 M. & W. 314 ; Schild v. Kilpin, 8 M. & W. 673 ; Felly v. Rose, 12 M. & W. 435 ; Parker v. Riley, 3 M. & W. 230 ; Solly v. Neish, 2 C. M. & R. 355, accord ; Henden v. Ruel, 6 Scott, 442 (semble) ; Allen v. Crofoot, 7 Cow. 46, contra. — Ed. 2 S. c, 1 Q. B. 197.— Ed. » 1 Wms. Saund. 244, c. n. 1. « 2 Ibid. 295. 8 10 B. & C. 527. 6 4 B. & C. 547. ' 2 Bing. N. C. 579. 8 5 Ad. & El. 237. » 1 Man. & Gr. 720. SECT. IV.] SALTER V. PURCHELL. 179 Elwell ~<3. The Grand Junction Railway Company.* An excuse must exist at the time when a right of action accrues, but matters in dis- charge arise subsequently ; therefore, as a set-off may arise at a later period than the cause of action, it is a matter in discharge rather than in excuse. Whittaker v. Mason '^ shows, that where a plea in assumpsit amounts not to an excuse, but to a denial of the contract, the replica- tion de injuria is improper. In Carr v. Hinchliff," a plea exactly similar to the present was held to be an extinguishment of the plain- tiff's demand. In Cleworth v. Pickford,* de injuria was held to be a bad replication to a plea, which amounted either to the general issue or to a set-off. He also cited Dendy v. Powell,' Goodchild v. Pledge, Ashbee v. Pidduck." Again, the plea falls within the third resolution in Crogate's case, as it states an authority from the plaintiff to the factor to sell the goods. Peacock, contra, as to the first point, cited Isaac y. Farrar, Noel v. Rich,' Ensall v. Smith,^ Barnes v. Hunt,' Richards v. Murdock, Hebden ■». Ruel.-''* Secondly, the plea states matter of excuse, and not in dis^ charge of the action. The validity of this defence was established by the case of George v. Clagett.^^ The defendant was not bound to plead his set-off, but when he does take that course, he admits the debt, and excuses the non-payment of it. The court must have considered that the plea in Carr v. Hinchliff amounted not to a discharge, but to an excuse, otherwise it would hardly have been held to be a confession and avoidance by matter ex post facto. The fact that an action may be brought in respect of the set-off, although it has been pleaded, shows that the debt has not been extinguished. The authority alluded to in Crogate's case is an authority given to the defendant. Martin, in reply. The judgment of the court was delivered by TiNDAX, C. J. [After stating the pleadings and judgment below, his Lordship proceeded as follows :] A writ of error having been brought by the defendant below on this j udgment, two principal objec- tions have been urged in argument before us, viz., first, that this general form of traverse of the plea is wholly inadmissible to an action of debt on the indebitatus counts ; and, secondly, that it is not appli- cable to the plea of the defendant, which is virtually and substantially a plea of set-off; and, as we are all of opinion that the judgment of 1 5 Mee. & Wels. 669. ^ 4 Bing. N. C. 303. 3 Crisp V, Griffiths, 2 C. M. & E. 159 {semble) ; Edwards v. Greenwood, 5 B. N. C 476 [semble) ; Jones v. Senior, 4 M. & W. 123; Catterall v. Lees, 8 C. B. 113, accord — Kd. * 7 Mee. & Wels, 314. » 3 Ibid. 442. » Ibid. 564. ' 2 Cr. M. & R. 360 « 1 Ibid. 522. 9 11 East, 451. i« 6 See. 442. " 7 Term Rep. 359. 180 SALTER V. PUBCHELL. [CHAP. Ill the court below cannot be supported upon the second ground of ob- jection, we hold it unnecessary to intimate any opinion upon the first.' The question is, whether the well-known rule in Crogate's case applies to the state of pleadings on this record. That rule, by which the plaintiff has been permitted to use this general form of replication instead of being compelled to take issue on some material fact stated in the defendant's plea, has always been limited, in its terms and in its application, to cases of actions brought for personal injuries, where the facts stated in the plea amount merely to matter of excuse or justifi- cation of the act complained of; as where in trespass for assault and battery there is a plea of son assault demesne, or a plea of molliter manus imposuit, in defence of possession ; or, in false imprisonment, where there is a plea that the plaintiff broke the peace, and that he, the defendant, being a constable, and present, took him in order to cany him to a justice of the peace ; or in an action on the case for defamation, where the plea justifies by reason of the truth of the words spoken ; in all which, and similar instances, the facts stated in the plea show that at the time the act complained of was done, it was done under circumstances which make it excusable or justifiable in the eye of the law. And it is to such pleas only that the rule in Crogate's case applies. But there is a manifest distinction between such pleas and those which rely upon matter of discharge and extinguishment of the right of action ; as to which latter class, no authority has been cited to show that the general form of traverse is allowable ; and, indeed, it is excluded by the very terms of the rule above referred to. Thus, in a plea of payment, or accord and satisfaction, or release, or of any matter which extinguishes the right to sue, both the rules of pleading, and the course and practice from the earliest time, require the plaintiff to make a traverse of, or to deny the material fact stated in the plea which constitutes the discharge or extinguishment of the right of action. In the present case, the plea is, in substance, a plea of set- off. Such a plea operates as a bar to the plaintiff's right of action, not by excusing or justifying the breach of promise complained of in the declaration, but, whilst it admits such breach to have been committed, by setting up, as a matter of compensation, the cross-demand of the defendant by force of the statutes of George the Second ; ^ and it is unnecessary to observe, that an ordinary plea of set-off cannot be met ])y the general traverse, but only by a special traverse or denial of the existence of the cross-demand ; and, upon another and distinct ground, the replication upon this record is inapplicable to the present case; for 1 In Cowper v. Garbett, 13 M. & W. 33, the replication de injuria wae held admis- (ible in an action of debt. — Ed. 2 2 Geo. II. 0. 22, § 13 ; 8 Geo. II. c. 24, §§ 4, 5. SECT. IV. J SPOTSWOOD V. BARROW. 181 in those instances in which the plea goes only to matter of excuse or justification, and when, consequently, the general traverse is allowed, there is engrafted an exception, that, where the plea justifies under any authority, or command, or license from the plaintifi", the general repli- cation is not good without a special traverse of such command, license, or authority; ^ and the exception to the rule, so far from being arbi- trary, appears to be founded in good sense ; for, although the plaintiff may be well allowed by his general replication to put in issue, and to compel the defendant to prove, all the facts which constitute his de- fence, when they lie in his, the defendant's, exclusive knowledge, yet where facts are pleaded which lie equally in the knowledge of the plaintiff and the defendant, such as an authority or license given by the plaintiff, there is no reason for compelling the defendant to prove them, unless the plaintiff thinks proper to deny them by a special traverse ; and the same reason will explain a similar exception from the general rule, where the defendant claims in his plea any interest in or out of land, for such interest must have been granted originally either by the plaintiff himself, or those to whom he is privy in estate. Now, in the present case, the plea alleges that Mason, against whom the right of set-off is claimed, was the factor and agent of the plain- tiff; and that Mason, with the consent of the plaintiff, sold and delivered the goods in question to the defendant, in his own name, and as his own goods. But the agency of Mason, and the consent of the plaintiff that he should sell the goods as his own, and in his own name, are facts that lie as much in the conusance of the plaintiff as of tho defendant, and stand upon the same footing as the authority or license of the plaintiff, which form acknowledged exceptions from the general rule. As well, therefore, upon this latter, as upon the former more general ground, we think the replication inadmissible in this case, and that the judgment of the court below must be reversed. Judgment reversed' SPOTSWOOD V. BARROW and Anothee. In the Exchequer, Fbbeuaet 12, 1850. [Reported in 5 Exchequer Reports, 110.] Assumpsit for the wrongful discharge of the plaintiff from the ser- vice of the defendants, as a traveller and salesman, before the expira^ tion of the period of his engagement. 1 Y. B. 16 Hen. VH. f. 2, pi. 7 ; Solly v. Neish, 2 C. M. & R. 855 ; Bowler » Nicholson, 12 A. & E. 341, accord. See Barnes v. Hunt, 11 East, 451. — Ed. 182 SPOTSWOOD V. BARROW. [CHAP. III. Plea. That whilst the plaintiff continued in such employ, to wit, on &c., and on divers other days and times, &c., he misbehaved and mis- conducted himself in this, to wit, that he wilfully, wrongfully, and ira properly refused to obey the just, lawful, and reasonable commands oJ the defendants, with reference to the plaintiff's conduct and proceed- ings in the said employ, and the business thereof; and that the plain- tiff, during the time aforesaid, received from divers customers of the defendants divers moneys of and for the defendants, and did not nor would account for or remit the said moneys to the defendants within reasonable times in that behalf, but then neglected and refused so to do, and improperly and wrongfully, and contrary to the express and lawful and reasonable commands of the defendants in this behalf, kept and detained the said moneys from the defendants for long and un- reasonable spaces of time, without any just cause or excuse in that be- half; and also wrongfully and unjustly appropriated a part of the said moneys to his own use, without the consent and against the will of the defendants. Wherefore the defendants afterwards, to wit, at the said time in the declaration in that behalf mentioned, did, by reason of the said premises in this plea aforesaid, refuse to continue the plaintiff in their said employ, or to suffer or permit the plaintiff to travel or act as a salesman of and for the defendants, or in any other manner in their said employ, as by the plaintiff in the said declaration in that behalf alleged ; and the defendants then therefore discharged the plaintiff from their employ, as they, the defendants, lawfully might, for the cause aforesaid. Verification. Replication, de injuria. At the trial, before Wightman, J., at the Liverpool Summer As- sizes, 1849, it appeared that, in March, 1846, the defendants agreed to employ the plaintiff as a traveller and salesman for one year, at a salary of £200. The plaintiff accordingly entered the defendants' ser- vice in that capacity, and continued therein until August, 1846, when the defendants discharged him. On the part of the defendants it was proved that the plaintiff had wrongfully appropriated certain moneys which he had received for the defendants' use ; but it appeared, on cross-examination, that the fact of the misappropriation did not come to the defendants' knowledge until after they had discharged the plaintiff. The learned judge asked the jury whether the misconduct proved was the cause of the dismissal; and the jury having replied in the negative, a verdict was found for the plaintiff for £80. "WilJcins, Serjt., in the following term obtained a rule nisi for a new trial, on the ground of misdirection ; against which Snowies now showed cause. A master cannot justify the discharge of a servant on account of misconduct unknown to him at the time of SECT, IV.] SPOTSWOOD V. BARROW. 183 dismissal. The law is thus stated in Cussons «. Skinner:* "Where there has been disobedience or an act of misconduct by a servant, known to the master at the time he discharges him, although the master does not mention that as the precise ground of discharge, he may afterwards, by showing that the fact existed, and that he knew it, justify such discharge ; but, semble, that it is otherwise where the act of misconduct was not known to the master at the time of the dis- charge, as it could not then be the cause of it." This case is distin- guishable from Ridgway v. The Plungerford Market Company,^ for there the question was not raised by the pleadings. Here the effect of the replication de injuria is to put in issue the virtute cujus, and con- sequently the direction of the learned judge was right. In Lucas v. Nockells,' Bayley, J., says, " Where a virtute cujus is a mere infer- ence of law drawn from premises previously stated, I agree it cannot be traversed ; but where it is not a legal result, but a pure question of fact, I believe all the authorities are that it may be traversed." Here the virtute cujus involves matter of fact, namely, the motive and knowledge of the defendants. [Paeke, B. Oakes v. Wood* decided, that the motive and intention with which an authority given by law is exercised cannot be inquired into under the general replication de injuria. If this plea had alleged that the defendants had notice of the plaintiff's misconduct, wherefore they discharged him, your argument might apply. Aldbeson, B. It is clearly settled since that case, that the motive is not in issue.] Wilkins, Serjt., and Atherton appeared to support the rule, but were not called upon. Paeke, B. The replication only involved the fact of misconduct ; therefore the learned judge was wrong in leaving to the jury what the motive of the defendants was. Oakes v. Wood decided that the de- fendant's motive or intention is immaterial, if the law justifies him in doing what he has done. Aldeeson, B. All that is in issue is, whether the defendants had a justifiable cause for doing the act complained of. RoLFE, B. The subject may be illustrated by what was said in Doe d. Daniell v. Woodruffe,^ viz. : « Where a party having a right of entry, enters, it is not competent for him to repudiate any rights he may possess, and to say he has entered as a trespasser, or by some other than his real title. As soon as he has entered he is possessed, whether he will or no, by virtue of every title which he had in him, and which he could assert by entry." Littleton, § 695, is there referred to 1 11 M. & W. 161. 2 3 A. & B. 171. » 10 Bing. 193. « 2 M. & W. 791. * 10 M. & W. 608. 184 SPOTSWOOD V. BABBOW. [CHAP. III. and that old authority seems to me to be founded on very good sense. Platt, B., concurred. Itule absolute?- 1 Oakes v. Wood, 2 M. & "W. 791 j Price v. Peek, 1 B. N. C. 387; Woods v. Dur- rant, 16 M. & W. 149, accord. Conf. Lucas v. Nockells, 10 Bing. 157 ; Carnaby v. Welby, 8 A. & E. 873. — Ed. CHAP. IV.] AUDLEY'S CASE. 18n CHAPTER IV. DUPLICITY. ANONYMOUS. In- the Michaelmas Teem, 1489. [Reported in Brooke's Abridgment, Double Plea, placitum 90.J " Debt upon bond, which was on condition to abide by the award of J. N., so that the same was made and delivered to the parties by Buch a day ; the defendant says that no award was m^cje or delivered before that day ; and it is double, per totam curiam, for it is a good plea that he made not any award by the day, and it is a good plea that he delivered not the award before tlie day, et idem, quod non delibera- vit arbitrium in scriptura, &o., where the submission is — to be (that the award should be) delivered in writing." ^ / DAME AUDLEY'S CASE. hr THE Queen's Bench, Eastee Teem, 1561. [Reported in Moore, 25.] Detinue. The defendant says that after the bailment to him by the plaintiff she married Lord Audley, who during the marriage released him of all acSonsT" Nichols. The plea seems double, for he J- has pleaded two matters in bar : first, property in the husband by the 1 Combe v. Talbor, 1 Salk. 218 ; Faulkner v. Chevell, 5 A. & E. 213 ; Smith . . Dixon, 7 A. & E. 1 ; Deacon u. Stodhart, 5 B. N. C. 594; Williams v. Jones, 1 G. & D. 649 ; Eawlinson v. Shand, 5 M. & W. 468 ; Butcher v. Stuart, 9 M. & W. 196 ; Burrass v. Hewett, 4 111. 224 ; Scott v. "Whipple, 6 Me. 425 ; Bean v. Farnam, 6 Pick, 269; Nichols v. Arnold, 8 Pick. 172; "Welch v. Jamison, 2 Miss. 160; Kennedy v. Strong, 10 Johns. 289 ; Connelly v. Pierce, 7 Wend. 129 ; Tubbs v. Caswell, 8 Wend. 129 ; Camp v. Morse, 5 Den. 161 ; Eumbarger v. Stiver, 6 Ohio, 99, accord. — Ed 186 GAILB V. BETT8. [CHAP. IV. marriage; second, release by the husband. And it was held by all the judges that the plea was not double, since he could not plead the release without pleading that it was after the marriage, otherwise it was not material, wherefore, &c.' SAUNDERS V. CRAWLEY. In the King's Bench, Michaelmas Teem, 1614. [Reported in 1 EoUe, 112.] Saundees brought debt on an obligation for non-performance of arti- cles which were to pay so much at two fixe d days in equal portions, which the defendant says he paid accordingly. The plaintiff replies that he has not paid accordingly , which is double ple a, quod fuit con- cessum per curiam,^ for this goes to both days." GAILE V. BETTS. In the Common Pleas, Michaelmas Teem, 1676. [Reported in 3 SdOceld, 142.] Debt upon bond, the defendant craved oyer of the condition, which was to pay £40 so long as the defendant should enjoy such an office, by quarterly payments every year ; then he pleads that the office was granted to three for their lives, and that he enjoyed it as long as they lived, and so long he paid the said rent quarterly. The plaintiff re- plied that he (the defendant) enjoyed the office_longer, and that he had n ot paid the money by quarterly payments ; and upon demurrer to the replication, it was objected that it was double. Sed per curiam, it is not, for the defendant cannot in his rejoinder tender an issue upon payment of the money, because that would be a departure from his plea. 1 Calf u. Nevil, Poph. 186 ; Eowles v. Lusty, 4 Bing. 428 ; Currie u. Henry, 2 Johns. 433 ; Lord o. Tyler, 14 Pick. 156, 165 ; State v. Bank, 33 Miss. 474, 495, accord. — Ed. 2 Humphreys v. Churchman, C. T. Hard. 289 ; Jeruegan v. Harrison, 1 Stra. 317 ; Griffiths u. Eyles, 1 B. & P. 413 ; Cheasley v. Barnes, 10 East, 73 ; Brooks v. Stuart, 9 A. & E. 854 ; Hulme v. Muggleston, 3 M. & W. 30 ; Austin v. Parker, 13 Pick. 222 ; Mooney v. Demerrit, 1 N. H. 187, accord. — Ed. 3 The remainder of the case was to the effect that duplicity was no objection on general demurrer. — Ed. ■2-^ I CHAP. IV.] HAET V. LONGFIELD. 187 HUMPHREYS v. BETHILY. In the Common Plbas, Tbinitt Teem, 1690. [Reported in 2 Ventris, 198, 222.] In an action of debt upon a penal bill, where the defen dant was tp pay 10s. on the 11th of June, and 10s. more upon the 10th o f July next following, and 10s. every three weeks after, till a certain sum were satisfied by such several payments. And for the true payment thereof the defendant obliged himself in the penal sum of £7. The plaintiif in facto dicit pleaded, that the defendant did not .» pay the said sum, or ^iUj^iaxt-thfirgof, upon the several days aforesaid, unde actio accrevit for the £7. The defendant pleaded that he paid 10s. upon the 11th of June, et hoc paratus est oerijicare, &o. The plaintiff replied that he did not pay it, et hoc petit quod inqui- ratur per patriam. To which th' defendant demurred. The plea was held altogetheT insufficient. But then Pollexfbn, C. J., observed that the declaration was naught; for he should' have declared that the defendant failed in payment of one of the sums, which would have been enough to have entitled him to the penalty; but he says, the said several sums of money, or any of them, and this is double ; and he inclined that i j was not aided by answering over, or by the general demurrer. Adjornatur, Vide Saunders and Crowley. The court now delivered their opinions that thedotolenessinthe dpp.^arat.ion was cured by answering , and no exception can be taken to it upon the general demurrer. Saunders and Crowley is the same with this. Judicium pro quer'. * HART V. LOISTGFIELD. In the Queen's Bench, Hilaey Teem, 1703. [Reported in 7 Modern Reports, 148.] Indebitatus assumpsit. There were several counts in the dec- laration ; and demurrers to some, and issues taken upon others. One of the counts, to which there was a demurrer, was this : The 1 Y. B. 22 Ed. IV. f. 6, pi. 18 ; Anon., 3 Salk. 108 ; Ryley v. Parkhurst, 1 "Wils. 219 (sembk) : Little v. Perkins, 3 N. H. 469, accord. Conf . Phillips v. Price, 3 M. & S. 180. — Ed. 188 ROBINSON V. EAYLET. [CUAP. IV. plaintiff declared, that whereas such a day and year the defendant waa ) indebted to him in such a s um for nourish ing E dward Tiong-field . at the request and instance of the defendant, and that he (the defendant) -2__, promised to pay him. There was also a Quantum merui t for nourish- ing the said Edward Longfield for the sam e tim e. The second exception ^ was, that the first declaration being an indebi- tatus for nourishing of Edward Longfield for such a time, there is like- wise a quantum meruit fov the same nourishing, and it is contradictory that there should be one agreement to pay so much as it should De worth , and another to pay a sum uncertain, and both stand . And the court directed the plaintiff to enter a non pros, upon all but the first, and take judgment upon that ; and so it was done. " ^^ ROBINSON V. RATLET. In thb King's Bench, Teinitt Teem, 1751. [Reported in 1 Burrow, 316.] This was an action of trespass. The fifth count was for breaking and entering his free warren. Pleas, 1st, not guilty ; 2d,' that as to the close called the Rabbet-Walks, " That it is one rood of land, parcel of a common field ; and that Mr. Finch, in right of his prebendal es- tate, and all, &c., have right of common, &c., in certain fields called Middle Fields, whereof the Rabbet- Walks are parcel ; " which rights he derives to himself; and so justifies under it. To the plea to the fifth count, the replication traverses " that the cattle were the defendant's own cattle ; and that they were levant et couchant upon the premises, and commonable cattle." To this there is a special demurrer for cause (viz : " that the replication is multifarious, and that several matters, specifying them, are put in issue, whereas only one single matter ought to be so ; ) and joinder in demurrer. Poole, Serjt., for the defendant, complained of the hardship the plaintiff put upon the defendant in the 5th count, by enforcing the de- fendant to prove the cattle to be his own cattle, and commonable cattle ; and levant and couchant upon the land ; which hardship had obliged him to demur. 1 Only so much of the case is given as relates to the question of duplicity. — Ed. 2 West 0. Troles, 1 Salk. 213 (semble), accord. See Ware v. Webb, 32 Me. 41. — Ed ' See supra, note 1. — Ed. CHAK IV.] ROBINSON V. EATLET. 189 He argued, that some one fact only ought to be put in issue, not several. He cited Co. Lit. 126, a, [Letters q. r.J It must be one single cer- tain material point. And so also Crogate's Case [the last resolution] lays down the rule accordingly, " That an issue ought to be full and single." Now here are three distinct facts put in issue by this replication, any one of which was suflBcient. For if the cattle were not his own, or were not levant and couchant, they were not commonable cattle. The plaintiff might as well have put twenty facts in issue. This, therefore, is, at least, a fault in form ; and we have demurred specially, and shown this for cause : " That the replication is multifa- rious, and that several matters are put in issue (specifying them) ; whereas only one single matter ought to be so." Mr. Tates, contra, for the plaintiff. One part of the duplicity (viz., the cattle not being commonable) is not pointed out by the special demurrer. However, this traverse is not double, though I agree that it numer- ally contains several matters ; all which together make up the defend- ant's plea, and make one entire defence. And it is within the reason of Crogate's Case. Whereas duplicity is, where distinct matters, not being part of one entire defence, are put in issue. For there are cases where several matters may be put in one traverse : as, for instance, a custom consist- ing of several parts. Now all these parts here traversed, make one entire defence ; for the cattle must be commonable, levant and couchant, and his own ; or else it is no suiBcient defence. To prove which he cited 1 Ro. Abr. 398. Letter G, PL 2, 3. Letters H. and I. throughout. 1 Saund. 227. The case of Stennell v. Hogg, and 2 Show. 328. The case of Manne- ton V. Trevilian, in point. Poole, Seijt., in reply : 1st. As to the two matters making but one entire defence, yet being variety of facts, they ought not both to be put in issue. Cro- gate's Case. And the common method is to traverse "that the said cattle were levant and couchant" As to the case of Manneton v. Trevilian, I agree that the cattle ought to be levant and couchant. My demurrer here is in point of form, and is special. 2dly. I do not know but the party may go to issue, in some cases j but I say this is not the common form. 190 ROBINSON V. EATLET. [CHAP. IV. The case of Hustler v. Raines, 2 Lutw. 1399, 1401, proves nothing against me. LoED Mansfield held both these demurrers to be frivolous. The substantial rules of pleading are founded in strong sense, and in the soundest and closest logic ; and so appear, when well understood and explained, though by being misunderstood and misapplied, they are often made use of as instruments of chicane. As to the present case, it is true you must take issue upon a single point ; but it is not necessary that this single point should consist only of a single fact. Here the point is, the cattle being entitled to com- mon ; this is the single point of the defence. But in fact, they must be both his own cattle, and also levant and couchant ; which are two different essential circumstances, of their being entitled to common; and both of them absolutely requisite. Denison, J., concurred. '^ 1st. As to Crogate's Case. The replication de injuria sua propria \ absque tali causa will do, in all cases where matter of title, and other things of that kind, are not included in the absque tali causa ; and if ' you admit them, you may then plead de injuria sua propria absque ^ residua causa, traversing that residue. But the rule in Crogate's Case don't affect this case. For here the question is one single proposition, viz., the measure of the common ; and the measure of the common is the levancy and couchancy jointly with the property. Skinner, 137, is a more sensible report of the case of Molliton and Treviliau, than 2 Show. 328. And there the levancy and couchancy, together with the property, were esteemed to be the measure of the common, and not the levancy and couchancy only. So that nothing more is here traversed than the measure of the common. The case is in point. Besides, I think it is within Crogate's Case. Foster, J. I am of the same opinion. Per cur' unanimously Judgment for the plaintiff upon the demurrers.^ 1 Y. B. 2 Ed. IV. fol. 8, pi. 20 ; Rowles v. Lusty, 4 Bing. 428 ; Webb v. Weatherby, 1 B. N. C. 502 ; Brogden v. Marriott, 2 B. N. C. 473 ; Palmer . IV.] DE WOLF V. BETAN. 197 out of differ ent considerations, all of which are executed. According to the old form given in Saunders' Reports, there might be several dif- ferent considerations included in one count in indebitatus assumpsit ; and if we consider this as one count only, it amounts to this, that the defendant became liable to the plaintif f on a bill of exchange in consequenc e W^f the non-acceptance thereof, and also onaccount of the ^' non-payment thereof, and also on an account stated ; the whole con- cluding with a promise to pay. Then how does that- differ from the case of the common counts, for work and labor, goods sold and deliv- ered, &c. ? By analogy to the practice before the new rules, and which seems to rest on a sound foundation, we must hold the declaration good. Befo re the n ew rules, the whole would have been in issue under t he plea of non assumpsit, but now the defendant must traverse th e facts of presentment for payment and acceptance. The rest of the court concurred. Judgment for the plaintiff'} ' DE WOLF AJSD Another, Assignees, &c., v. BEVAN and ANOTEtBE. In the Exchequer, Michaelmas Term, 1844. [Reported in 2 Dowling If Lowndes, 345.] Trover by the assignees of K. M'Leod and J. B. "Wood, bankrupts. The first count stated that the bankrupts, before their bankruptcy, were possessed of one thousand puncheons of brandy, fifty puncheons, fifty kegs, &c., and alleged a conversion after the bankruptcy. The defendants pleaded as to five puncheons of brandy, and five puncheons, parcel, &c., that before the said K. L. & J. W. were pos- sessed thereof as in the declaration mentioned, the defendants held and were possessed of the said brandy and puncheons, as the ware- housemen and agents of certain persons, of whom the said K. L. & J. W. purchased the same ; that K. L. & J. W., before they became bank- rupts, purchased the same brandy and puncheons under and by virtue of a certain contract of purchase then made and entered into between them and certain other persons carrying on business by and under the name, style, and firm of Messrs. Falk Brothers, whose Christian names are to the defendants unknown, and by which said contract the said K. L. & J. W. were to purchase of and pay the said F. & Co. for the same brandy and puncheons a certain sum of money as the price and value of the said brandy and puncheons, to wit, the sum of £78 lis. 4c?., to be 1 See Jourdain w. Johnson, 2 C. M. & E. 564 ; Morse v. James, 11 M. & W. 831. Ed. 198 DE WOLF V. SEVAN. [CHAP. IV, secured by a certain acceptance by them, the said K. L. & J. W., of a certain bill of exchange drawn on them by the said F. & Co., payable at a certain time after date, to wit, four months ; that K. L. & J. W". did purchase and pay for the same brandy and puncheons in manner aforesaid ; that afterwards, from the time of such purchase as aforesaid continually up to and until the re-transfer of the same brandy and puncheons to the said F. & Co., as hereinafter mentioned, the defend- ants held and were possessed of, and had the custody and control of the same brandy and puncheons, as the warehousemen and agents of and for the said K. L. & J. W., which was their possession in the dec- laration mentioned ; that afterwards, and before the said K. L. & J. W. became banki-upts, the said bill of exchange so given in payment became and was due and payable according to its tenor and effect; that K. L. & J. W. being then unable to meet or pay the said bill, the same then being and remaining in the hands of F. & Co. unpaid and dishonored ; and the said last-mentioned persons then pressing for pay- ment thereof, and then threatening to take proceedings against K. L. & J. W. to compel payment thereof, it was then and thereupon agreed by and between F. & Co. and K. L. & J. W., in consideration of the premises, and that F. & Co. would then forbear to take proceedings against the said K. L. & J. W. to compel payment of the said bill of exchange, and that F. & Co. would abandon and relinquish all claim and demand upon the said bill of exchange, and would accept the said brandy and puncheons last mentioned in satis- faction and discharge of the said bill of exchange, and of all cause and right of action thereon; that K. L. & J. W. should return, re-transfer, and re-deliver the same brandy and puncheons to F. & Co. (averment of notice and assent to the return, re-transfer, and re-delivery of the brandy and puncheons) ; that afterwards, and before the defendants, or F. & Co., or either of them, had any knowledge or notice of any fiat in bankruptcy issued against K. L. & J. W. or either of them, or of any act of bankruptcy by them or either of them com- mitted, and before either of them had become bankrupt, the same brandy and puncheons, and every part thereof, was and were accord- ingly returned, re-transferred, and re-delivered to F. & Co., and the same was and were then accepted by them in such satisfaction and discharge of the said- bill of exchange, and they then thereupon aban- doned and relinquished all claim and demand thereupon ; that all property and interest in the same brandy and puncheons, then and before the defendants, or F. & Co., or either of them respectively, had any knowledge or notice that any fiat in bankruptcy had issued against K. L. & J. W. or either of them, or that any act of bankruptcy had been committed by them or either of them, and before either of CHAP. IV.J DE WOLF V. BEVAN. 199 them had become bankrupt, reverted in and became the property in possession of F. & Co., to wit, by means of a re-delivery thereof to them by the defendants, under and by virtue of the authority of K. L. & J. W, to the defendants given in that behalf, before any act of bankruptcy by K. L. & J. W., or either of them, committed ; that after- wards, and after the said K. L. & J. W. became bankrupts, the plaintiflPs, as such assignees, applied to and requested the defendants to deliver up to them, the plaintiffs, as such assignees, the same brandy and puncheons, which the defendants then, and for the cause in this plea aforesaid, wholly refused to do, as they lawfully might, for the cause aforesaid, which is the conversion in the said first count men- tioned and complained of. Verification. Replication, that it was not agreed by and between F. & Co. and K. L. & J. W., as in the said plea mentioned ; nor were the said brandy or puncheons in said plea mentioned, returned, re-transferred, or re- delivered, or accepted in satisfaction or discharge, as in the said plea mentioned, in manner and form as in that plea alleged ; nor did the property and interest in the brandy and puncheons, before the defend- ants, or F. & Co., or either of them, had knowledge or notice that a fiat had issued against K. L. & J. W., or that an act of bankruptcy had been committed, revert in, or become the property, and in possession of F. & Co., by means of a re-delivery thereof to them by the defend- ants, under and by virtue of the authority of K. L. & J. W. before anj act of bankruptcy, modo et forma. Special demurrer, assigning for cause (amongst others), that the replication is double and multifarious, inasmuch as it contains two sev' eral and distinct answers ; that is to say, the one a denial of the said alleged agreement, the other a denial of the alleged performance of it. W. JS. Watson, in support of the demurrer, contended that the rep- lication put in issue three distinct facts ; viz., the agreement, its per- formance, and the re-delivery of the brandy, &o., by authority of the bankrupt. Crompton, contra, argued that the demurrer only pointed at the objection that two facts were put in issue by the replication ; and that those facts amounted to one single matter of defence, and were, there- fore, traversable. He cited Bell v. Tuckett.^ Robinson v. Rayley, O'Brien v. Saxon, Webb v. Weatherby,^ Bannison v. Thelwell,' Pigeon V. Osborn,* Reynolds v. Blackburn, Garten v. Robinson,* Eden v. Turtle. Cur. adv. vult. 1 3 M. & G. 785 ; 1 Dowl. 458, N. S. See s. o. 4 Scott, N. E. 402. 2 1 Scott, 477 ; s. c. 1 Bing. N. C. 502. 3 9 Dowl. 739. See s. c. 7 M. & W. 512. 4 4 P. & D, 34-5. See s. c. 12 A. & E. 715 ; 9 Dowl. 607. 6 2 Dowl. 41, N. S. ^2 Dowl. 459, N. S. See s. c. 10 M. & W. 635. 200 DE WOLF V. BEVAN. [CHAP. IV. The judgment of the court was delivered by Pollock, C. B. The demurrer in this case was argued before my Brothers Parke, Alderson, Rolfe, and myself, during the last term. (His Lordship stated the pleadings.) Two objections were made to the replication ; the first is of importance, and if decided for the defend- ants, it is unnecessai-y to consider the other. The objection is, that the traverse in the replication was multifarious and put in issue three distinct matters : first, the agreement between the bankrupts and Falk Brothers; secondly, its performance by re-delivery pursuant to the agreement; and, thirdly, a re-delivery by authority of the bankrupt notified to the defendants, which would prevent the goods passing to the assignees, as being in the apparent ownership of the bankrupts. It was answered, in the first place, and we think properly answered, that the special demurrer objected to the replication as containing two answers, — the denial of the agreement, and of the performance of it, — and not three ; and that the defendants can only avail themselves of the grounds of objections for duplicity or multifariousness specially stated. Smith v. Clinch.* The question then is, whether the plaintiff can deny by one traverse the agreement by Falk & Co. to give up the claim on the bill against the bankrupts, and receive back the goods in satisfaction of that claim; and also the performance of the agi-ee- ment by the re-delivery and acceptance in satisfaction and discharge of that claim ? The rule laid down by Lord Coke, Co. Litt. 126 a, is that a special issue must be taken on one material point ; and in apply- ing the rule, the courts have held that a plaintifi" is not confined to a single fact, but may include several, constituting one point of the defence ; as in Robinson v. Rayley, Bannison v. Thelwell,^ Pigeon v. Osborn,' and lastly, the case of Bell v. Tuckett,* in which it was decided, on the authority of the other cases, that where the defendant pleaded a release by one who executed as an agent of the plaintiff, on behalf of the plaintiff, and who was duly authorized so to do by the plain- tiff, the plaintiff might include in his traverse the execution by the agent, and his authority to execute ; those two facts constituting one ground or point of defence. My Brother Maule truly says,^ that there is some nicety and difficulty where several facts are pleaded, in saying whether they come under this description or not; and we have tiad considerable doubt in the present case. A point of defence is clearly not to be confounded with the whole defence contained in the plea ; otherwise there would be no distinction as to the cases in which a gen- eral traverse is allowable, and upon which nice questions have arisen ; 1 2 G. & D. 225. See s. c. 2 Q. B. 835. « 7 M. & W. 512. 3 4 P. & D. 345. * 8 M. & G. 785. » In Bell V. Tuckett, 3 M. & G. 805. CHAP. IV.] DE WOLF V. BEVAN. 201 and a plaintiff might in all cases deny the whole plea, though it con- sisted not of mere matter of excuse .only, but of title or authority derived from the plaintiff. A plea may, indeed, comprise a single point of defence only, but it may also comprise several points. Thus a plea of release, or money paid in satisfaction, or license, may be con- sidered as including one point of defence only ; a plea of right of common in the old form comprises several, viz., a seisin in fee of the land in respect of which the right is claitned, a prescriptive right for certain cattle, and the putting on those cattle. All that the court did in Robinson v. Rayley, was to decide that the last part of such a plea formed one point of defence ; though it was capable, in that case, of being subdivided into three distinct facts, viz., the ownership of the cattle, their being commonable, and levant and couchant. In some cases of common, as, for instance, for a certain number of horses, it would consist of one fact only. Had there been a replication in that case, putting in issue the whole defence, whether in the form of de injuria, &c., or a denial of all the matters in the plea, it would have been clearly bad. We have then to decide in the present case, whether the agreement between Falk Brothers and the bankrupt, and the per- formance of it on both sides, constitute one point of the defence or two, and, after some hesitation, we have come to the conclusion that they constitute two. The averment bears a close analogy to the plea of accord and satisfaction in the old form, disapproved of by Lord Coke in Pinnel's Case,^ the replication to which plea, in the book of entries, traverses one part of the allegations, — Rastall's Entries, 627, a ; and we cannot find any case in which both have been denied to- gether. That of "Webb v. Weatherby," where it was pleaded that the defendant paid, and plaintiff received, a sum in satisfaction, was decided on the ground that a denial of acceptance in satisfaction would virtually imply a denial of payment, and, consequently, there was no objection to an express denial of both; and the Lord Chief Justice distinctly said, it is not a case of accord and satisfaction, and therefore, at least, no authority for the denial of both those facts in such a plea by one traverse. A case was cited, decided by my Brother Wightman, Garten v. Robinson,' as an authority that where a plaintiff might traverse all the facts in the plea by the general replication, he might confine himself to some of them ; and so the traverse in this case, it was argued, might be supported, though it included two facts. It is a sufficient answer to say that here the plaintiff could not have traversed all the allegations in the plea, because it contained matter of title to the goods, and therefore the traversing of two facts could not, on this ground, be supported. 1 5 Eep. 117, a. 2 1 Bing. N. C. 502. » 2 Bowl. 41, N, 8, 202 SHEPHERD V. SHErHERD ["^^^P- ^^ We are of opinion, therefore, that the replication is bad, and that the first objection must prevail; and it becomes, therefore, unneces- sary to consider the second. The plaintiff may, however, amend, on payment of costs, if he should be able to do so. Judgment for the defendants?- SHEPHERD V. SHEPHERD. In the Common Pleas, June 10, 1845. [Reported in 3 Dowling Sf Lowndes, 199.] Debt on a promissory note. The declaration stated, that the defend ant on the 25th of March, 1844, made his promisso ry note in ' writing, and thereby promised to pay the plaintiff or his order, £690 ou the 25th of Ma rch, 1845, which day had expired before the com- mencement of his suit, and then delivered the said note to the plain- tiff; and thereupon the defen dant then agreed to pay the amount of ./the said note to the plain tiff on request; whereby and by reason of the non-payment of the said sum of money an action has accrued to the plaintiff, to demand and have of and from the defendant the said sum of money. Tet the defendant has not paid the said sum or any part thereof, to the plaintiff's damage of £10, &c. To this declaration the defendant specially demurred, and assigned for causes of demurrer, that the declaration is double and inconsistent in this, to wit, that in one part it states and alleges an agreement to pay the sum of £690 on the 25th March, 1845, and in another part, that the defendant agreed to pay the said sum on request ; and also, for that it is uncertain whe- ther the plaintiff intends to rely on an express or an implied agreement , and if on the latter, that there is no sufficient consideration stated for such agreement. JByles, Serjt., in support of the demurrer.'' The declaration then is bad for duplicity. In Slade v. Drake,' the Court said, "pleading is not talking; and therefore it is required that pleading be true, that is the goodness and virtue of pleading ; and that it be certain and single, and that is the beauty and grace of pleading. 1 Bonzi V. Stewart, 7 M. & G. 746 ; Garrard v. Hardey, 6 Sc. N. R. 459 (semble) ; Tebbets u. TUton, 24 N. H. 120 (semUe) ; Watriss v. Pierce, 36 N. H. 232 ; Satterlee i). Sterling, 8 Cow. 233 ; Tuttle v. Smith, 10 Wend. 386 ; Russell v. Rogers, 15 Wend. 357; McNulty a. Frame, 1 Sandf. 128, accord; Strong v. Smith. 3 Cal. 160' Patcher v. Sprague, 2 Johns. 462; Tucker v. Ladd, 7 Cow. 450, contra. — Ed. ' See supra, p. 188, note 1. — Ed. 3 Hob. 295. OHAP. IV.J SHEPHERD V. SHEPHERD. 5^03 Therefore the law refuseth double pleading, and negative pregnant, though they be true, because they do inveigle, and not settle the judgment upon one point." Now the fact that one of two matters was ill pleaded did not prevent the pleading being double ; Purssord v. Peek ; ^ Stevens v. Underwood. This declaration contained substan- tially two causes of action; the one consisting of the promise to pay- on the 25th of March, the other to pay on request. [Mauls, J. The allegation, " The defendant then agreed to pay the amount of the said note to the plaintiff on request," is immaterial, and may therefore be struck out. It is not the promise which the promissory note would sustain, and consequently is merely nonsense.] But the word " there- upon " might be considered as equivalent to " afterwards." If so, the allegation would mean that the promise to pay on request had been made after the note became due. Sufficient would then appear to aistain a count on an account stated. ,3'It is said that it amounts to duplicity, and that either part would afford a cause of action. There is, however, nothing to show that the rule in this respect as to pleas extends to declarations. I am, therefore, of opinion, that judgment should be for the plaintiff. CoLTJiAN, J. I am of the same opinion. The allegation in the declaration, that the defendant then agreed to pay the amount of the note to the plaintiff on request, as I understand it, refers to an agree- ment made on the 25th March, 1844. That was a void promise altogether ; and, therefore, such allegation is no more than surplusage, and if the same be struck out, a good cause of action remains. I am not aware that the insertion in a declaration of a promise, which in law has no operation, will make the declaration bad. Mauxe, J It is said that this declaration is double, and cases have been cited, of Purssord v. Peek,^ and Stevens v. Underwood, in which pleas have been held double, though ill pleaded. But the sense in which a plea may be bad, on the ground of its being double, is not the sense in which a declaration is bad for duplicity. A plea is b ad if it give two substantial answers to the antecedent nleaaing : out a declaration is not in like mannei' bad fo r statino- 1^ causes of action. The declaration may disclose several causes of action, as on two bonds or for two breaches of covenant, without being bad for du- plicity ; yet if these were each to amount to a defence, or answer to an antecedent pleading, and were inserted in one plea or replication, such plea or replication would be bad for duplicity. A declaration may be bad, when, instead of containing in it two distinct causes of action , _it B tetes two causes of action for the same claim. Thus, in an action on a 1 grM. &"W. 196. 2.9M. &W. 196. 204 HARRISON V. COTGREATB. [CHAP. IV bond prior to the stat. 8 & 9 Wm. III. c. 11, two breaches c"uld not have been alleged, because one was sufficient to give the right of action for the penalty ; and, therefore, the stating two on the same bond would have been bad. So if, in the present case, the declara- tion had suggested another ground for making the defendant liable to pay the promissory note, there might be some color for the objection which has been taken. But, in fact, the declaration shows, that the note was payable on the 25th March, and that the defendant was liable to pay it when due. An agreement then to pay the same on request does not confer any cause of action on the note, but is bad as an abso- lute nullity. This declaration, therefore, is not open to this objection. Cbbsswell, J., concurred, and refen-ed to the case of Galway v. Rose, as supporting the principle laid down by Maule, J., respecting duplicity. Judgment for the plaintiff.^ HARRISON V. COTGREAVE. Ik the Commok Pleas, Mat 2, 1847. [Reported in 5 Dowling Sf Lowndes, 169.] Assumpsit. The declaration in the first count stated, that on the 16th of February, 1846, the plaintiff made his bill of exchange in writ- ing, dated, to wit, the day and year aforesaid, and directed the same to the defendant, &c. And the defendant afterwards, and before the commencement of this suit, to wit, on the day and year aforesaid, accepted the said bill, &c. The defendant pleaded fourthly, that the defendant accepted the said bill of exchange in the said first count mentioned, whilst he, the defendant, was an infant within the age of twenty-one years, to wit, of the age of eighteen years, the said bill of exchange being, at the time of such acceptance thereof, without any date written thereon ; and that the plaintiff afterwards, to wit, on the day and year in the said first count mentioned, altered the said bill of exchange, by dating the same and writing a certain date thereon, to wit, the day and year last aforesaid, whereby the said bill of exchange was made to bear date of a day long after the making and such acceptance of the said bill, and after the time at which the defendant attained his age of twenty-one years, to wit, on the day and year last aforesaid ; and that there never was any license or authority, ratification, or assent of the defendant, 1 Wilkinson v. Gaston, 9 Q. B. 137 ; Raymond v. Sturges, 23 Conn. 146, accord. — Ed. CHAP. IV.] HARRISON V. COTGREAVE. '205 for or to such alteration as aforesaid, given by the defendant at any time after he had attained his age of twenty-one years. And the de- fendant further says, that there never was any other acceptance by him of the said bill, except as aforesaid. Verification. Special demurrer, on the grounds, among others, that the plea is multifarious in alleging the plaintifi"'s infancy at the time of accepting the bill; that he accepted the bill without a date (which, as the bill is alleged in the declaration to have been dated, amounts to a denial of the acceptance and making), and that the bill was altered by the plain- tiff without license or ratification by the defendant. That the plea is double, in setting up infancy, and alteration by the plaintiff without the defendant's assent. That the plea is an argumentative denial of the making and acceptance, and ought to have concluded to the country. Crompton, in support of the demurrer. The plea presents several defences, and therefore throws an undue diflSculty on the plaintiff in replying. The first ground of defence set up is that of infancy, which is of itself a sufficient answer to the action. Secondly, it alleges that the biU on which the plaintiff has declared, is different from the one accepted by the defendant, for it states the date of it to be different. Under the plea of non accepit that fact would afford a defence. Thirdly, it alleges an alteration in the bill without the assent of the plaintiff. That fact would also afford a good defence. It was impos- sible, therefore, for the plaintiff to reply to a plea of such a multifarious description. Again, the plea, so far as it alleged the unauthorized alteration of the date, was argumentative, as by inference it denied the acceptance as alleged in the declaration. If the defendant was able to prove the facts so alleged, he would succeed in his defence ; as in Davidson v. Cooper and Another,^ where an action of assumpsit was brought on a guaranty, the defendant pleaded, that after the guar- anty had been made and signed, it had been altered in a material par- ticular by some person to the defendant unknown, and its nature and effect materially changed, by such unknown person affixing a seal by or near to the signature of the defendant, so as to make it purport to be sealed by the defendant, and so to be his deed. There, the Court of Exchequer held, upon a motion for judgment non obstante veredicto, that the plea afforded a good defence to the action. Channett, Serjt. (with him Townshend), was stopped by the court. Wilde, J. I am of opinion that this plea is sufficient. The decla- ration alleges, that the defendant made his bill of exchange, to wit, on, &c. ; this is not an allegation of a particular day, and the authorities 1 11 M. & W 778. 206 HARRISON V. COTGREAVE. [CHAP. IV. show that a bill is a perfect instrument without any date, and runa from the time of its delivery. The plea, therefore, in effect says, " I accepted the bill mentioned in the declaration, and I will tell you how and when I accepted it ; it had no date, the plaintiff afterwards put in the date ; and the date of the making and of the acceptance was before I was of age, therefore I am not liable." These are not several defences set up ; but several allegations are made, which, together, con- stitute the single defence of infancy. The effect, therefore, of the plea is with reference to the alteration, that it was introduced, not without any authority in point of fact, but without such an authority as ren- ders the defendant liable. The plea, therefore, does not disclose two defences, and is consequently good. CoLTMAN, J. I am of the same opinion. At first I doubted whether there were not two distinct defences alleged in this plea. I am, how- ever, satisfied that that is not the case. A plea is not objectionable, because it contains two defences of such a description that the latter is incomplete without the assistance of the former. Thus, in the pres- ent instance, the former defence is infancy ; the latter, an alteration of the bill ; there is not, however, any allegation that the defendant did not assent to that alteration. That defence, therefore, is incomplete for want of such an allegation ; an alteration is not a good defence unless the plea goes on to allege that it was made without the defend- ant's assent. The defendant does that by saying he gave no consent after he became of age ; and then, whether he gave a previous consent or not is immaterial, and thus all the facts alleged in the plea are shown to have taken place during the infancy of the defendant. Matjlb, J. It appears to me that this is a good plea of infancy. The plea is, that the defendant accepted the bill in a particular man- ner; that the plaintiff afterwards, while the defendant was an infant, altered the bill by inserting a date ; such alteration not being author- ized by the defendant after he became of age. " The whole acceptance was complete before I came of age, and I did not ratify it afterwards." The plea of infancy is complete at the end of the first paragraph ; the addition of the special circumstances do not alter it, nor do they add another defence ; it stands as it did before they were introduced, " 1 accepted when I was an infant." Cbbsswell, J., concurred. Judgment for the defendant CUAP. IV.] RATHBONE V. EATHBONE, 207 JOHN RATHBONE v. SAMUEL RATHBONE. Supreme Judicial Couet, Massachusetts, Septembbb Teksi, 1827. [Reported in 5 Pickering, 221.] Debt. The defendant pleaded in abatement, that the writ, " at the time when it was put into the officer's hands for service, and at the time wlien it was served, by attaching the property of the said Samuel, contained no coun t or d eclaratio n ; nor was there any cause of action in any way or manner set forth." The plaintiff demurred because the plea was double,^ in averring that there was no count, &c., in the writ both at the time when it was put into the officer's hands and when it was served ; also in averring that there was no count or declaration, nor any cause of action set forth in the writ. A.shmun, for the plaintiff. A plea is double when either of two mat- ters alleged is alone sufficient. Here, if the want of a declaration when the writ was served was fatal, the want of one when it was put into the officer's hands was likewise, and vice versa. Thayer v. Rogers.'' A plea is double when the other pai-ty cannot make one answer to it. Here there may have been a declaration when the writ was put into the officer's hands, and not when it was served ; and vice versa. The plea alleges too that the writ contained no declaration or any cause of lotion. If these mean the same thing, then the same defence is re- peated ; which informality is fatal to a plea in abatement. But they do not mean the same thing. A declaration is a formal statement of the cause of action. In assumpsit upon an account annexed, if the account is left out, there is a declaration, but no cause of action ; and if the writ has only the account annexed, there is a cause of action but no declaration. The plea, therefore, is double. Mills and JVewcomb, on the same side. Wells and Maxwell, for the defendant. The opinion of the court was drawn up by Pakker, C J. We consider the plea in abatement good, notwith- standing the causes assigned in support of the special demurrer. It is immaterial what the writ contained when it was first filled , provided it did not contain any cause of action when put into the hands of the officer to be served, and when actually served ; for the question must always be, whether then when it was served it was a good writ, so as to hold the property attached. The allegation of there being no cause of action w hen it was put into the officer's hands for servic e, i^surglu^ jige and may be rejected ; so that there is no_du2licitx-' » See supra, p. 188, note 1. — Ed. ^ i Johns. Cas. 152 J See injra, p. 208, note 3. — Bi> 208 ANONYMOUS. 'CHAP. V. CHAPTER V. DEPARTURE. ANONYMOUS. In the Common Pleas, Trinity Teem, 1566. [Reported in Dyer, 253, pladtum 101.] A LEASE was made by indenture for years without impeachment of waste, and one covenant was, that the lessee at every felling of wood should make a fence to save the spring ; and he was bound for the per- formance of the covenants. And in debt on bond he plead ed the indenture, and to the said covenant pleaded that_he had not felled any wood, &c. And the plaintiff showed the felling of two acres of wood, and that the defendant did not make any fence to save the spring and the defendant rejoin s, that he^ made a fence, &c., and of that he puts iimself upon tlia country ; and the aforesaid plaintiff does the like, therefore ■ let twelve, &c. And t his was holden a jeofail and departur e ; and the jury at the bar discharged for this in the Bench.* 1 Co. Lit. 304, a ; Fulmerston o. Steward, Plowd. 105 ; Palmer v. Stone, 2 WiU. 96 ; Hickman v. Walker, Willes, 27 ; Ellis v. Eowles, Willes, 638 ; Meyer v. Haworth, 8 A. & E. 467 ; Nevile v. Boyle, 11 M. & W. 26 ; McAden v. Gibson, 5 Ala. 341 ; Harper v. Hampton, 1 H. & J. 453 ; State v. Dorsey, 3 G. & J. 75 ; Dawes v. Win- ship, 16 Mass. 291 ; Sibley v. Brown, 4 Pick. 137 ; Hapgood v. Houghton, 8 Pick. 451 ; Gildart v. Howell, 2 Miss. 198 ; Fiser o. M. & T. R. R., 32 Miss. 359 ; Vanzant V. Shelton, 40 Miss. 332 ; Tarleton a. Wells, 2 N. H. 306 ; Moore v. Stevens, 42 N. H. 404 ; Munro v. Alain, 2 Cai. 320 ; Andrus v. Waring, 20 Johns. 153 ; Griswold v. Ins. Co., 3 Cow. 96 ; Benjamin v. DeGroot, 1 Den. 151 ; Lindsay v. Jamison, 4 McC. 93 ; Houghton v. Jewett, 2 Tyl. 183, accord. — Ed. 8 T. B. 1 H. VII. fol. 16, pi. 2 ; Northumberland's Case, 5 Rep. 98 ; Grenelife v. W., Dyer, 42 h ; Webb k. Weatherby, 1 B. N. C. 505 ; Kellogg v. Miller, 6 Ark. 468 j McDaniel <•■. Grace, 16 Ark. 465 ; Hereford v. Crow, 4 111. 423 ; Porter v. Brecken- ridgs, 2 Blackf. 385 ; Bruce v. Mathers, 2 Bibb. 294 ; Stewardson «. White, 3 H. & McH. 455 ; Lord v. Tyler, 14 Pick. 165 ; Hamp. Bank v. BiUings, 17 Pick. 87 ; Hooper v. Jellison, 22 Pick. 250 ; Webber v. Sherman, 3 HUl, 547 ; Ford v. Babcook, 2 Sandf . 518 ; Day v. Abbott, 15 Vt. 632, accord. — Ed. CHAP. V.J MOLE V. WALLIS. 209 ODIHAM V. SMITH. In thk Queen's Bbnch, Michaelmas Teem, 1593. [Reported in Crake's Elizabeth, 589.J Eekob of a judgment in the Common Pleas, Trinity Term, 34 Eliz, Roll 124, in trespass of his close breaking at Wytlsham, and taking an ox there. The defendant justifies for damage-feasant in Black Acre. The plaintifi" made a new assignment of the trespass in White Acre. The defendant justifies there as servant to Belknap Rudstone, for that the plaintifi" held of him the place, where, &c., by heriot service inter alia servitia, as of his manor of Paulter, and that he seized the said ox there for an heriot. Whereupon the plaintifi" demurred, and had judgment. And error being now brought, Foster argued for the de- fendant in the writ of error, that one cause of the judgment was in the pleading."^ For in the ba r he ^justifie s fqr_dama ge-feaHai;i t,, wherein he claims not any property ; and in the r ejoinde r he justifies for a n heriot.. w herein he claims it as hi s ; for it is contrary, and a departure. Wherefore, &e. - Bat all the Justices severally delivered their opinions as to the objection against the pleading, holding it to be well enough ; for by the novel assignment the bar is out of doors, and as if it never had been pleaded ; as 27 Hen. VIII. pi. 7, is. It may be that he took an ox in Black Acre, being his own land, for damage-feasant, and another ox in White Acre, as for the heriot ; so they may well stand together and if the case be so, he could not otherwise have pleaded it. After- wards, in Mich. Term, 40 & 41 Eliz., the judgment was reversed, for the matter in law. MOLE V. WALLIS, ob BOLD v. WARREN. In the King's Bench, Michaelmas Teem, 1662. [Reported in 1 Levinz, 81.] Covenant on an indenture of apprenticeship to serve him seven years, which he had not done, but departed. The defendant pleads in- fancy; the plaintifi" replies the custom of London, for infants to bind themselves apprentices ; the defendant demurs ; And whether this was a departure? was the question. And Wyndham and Foster, Chief Justice at one time, seemed that it was not, it being laid in London, where the custom is known ; and Foster cited a case, where infancy being pleaded to a feoflment, the plaintifi" replied the custom of gavel- kind in Kent ; that an infant might make a feofi"ment at fifteen, and 1 Only 60 much of the case is given as relates to the question of departuip — En 14 210 RICHARDS V. HODGES. [CHAP. V. the action being laid in Kent, it was resolved to be good. Twysden and Mallet on the contrary said, that which is pleaded generally as the common law cannot be maintained by custom, but is a departure, and cited Yel. 14 ; Plowd. Com. 105 ; Mich. 6 H. VII. pi. 4 ; Hill. 21 H. VII. pi. 29; 2 Cro. 494; Hutt. 63, 64. But they agreed, that if one pleads a statute, and the other says that it is repealed, the other may say that it is revived by another statute; or, if a man pleads a statute, and the other says that it was to continue but till such a time, which is expired, the other may say, that the first statute was after- wards made perpetual, because it is only a fortifying of the first matter. And in Hilary term following, the party (plaintiff) prayed leave to discontinue.^ RICHARDS AND Anotheb v. HODGES. In the King's Bench, Trinity Teem, 1669. [Reported in 2 Saunders, 83.] Debt upon bond by Richards and Samon against Hodges; tne defendant prays oyer of the condition, which is, " That whereas Mary Bates hath of late been delivered of a man-child within the parish of St. Peter, in the town of Nottingham, to the which child the above-bound Fohn Hodges according to law stands charged the reputed father ; if therefore the said John Hodges, his heirs, executors, administrators, or assigns, or any of them, do from time to time, and at all times here- after, fully and clearly acquit, discharge, and save harmless, as well the above-named Samuel Richards and Francis Samon, church-wardens of the parish of St. Peter aforesaid, and their successors for the time being, and every of them, and also all the inhabitants and parishioners of the said parish, which now are or hereafter shall be for the time being, and every of them, of and from all manner of costs, charges, troubles, and incumbrances whatsoever, for or by reason of the birth, ed- ucation, maintenance, nourishing or bringing up of the said child, and of and from all other actions, suits, charges, troubles, and demands whatsoever, touching or concerning the same, that then, &c." And upon this the defendant pleads non damnificatus generally ; the plain- tiffs reply, that neither the defendant, nor any other, for the space of a month after the making of the bond, provided any maintenance for the infant, wherefore the parishioners, to prevent the infant from per- ishing with hunger and cold, during the whole time aforesaid were forced to pay, and had paid, 4s. for the maintenance and nourishmeni i See Wood v. Hawkshead, Yelv. 14. — Ed. CHAP. V.J VEBE V. SMITH. 211 of the infant, and so the parishioners were damnified, &c. ; to which the defendant rejoins, that he would have nourished the infant at his own costs and charges during the whole of the said time, and offered to do it as well to the plaintiffs as to the other parishioners, but they refused to permit him to do so ; and of their own wrong, and against the will of the defendant, put the infant to nurse, and paid the 4s. And this, &c., wherefore, &c. Upon which rejoinder the plaintiffs demurred in law. And by the court : The rejoinder was bad, because it was a departure from the first plea in bar ; for the defendant in his plea says, that the parishioners were not damnified ; and when the plaintiffs by their repli- cation show how they were damnified, the defendant cannot rejoin that the damnification was of their own wrong, as he has done here, but ought to have pleaded it at first in his plea in bar. And though Saunders of counsel with the defendant urged that it was not any damnification at all, because it was the voluntary act of the parish to put the infant to nurse, when the defendant himself offered to maintain it, et volenti nonjit injuria^ and they ought not to take advantage of their own wrong ; yet non allocatur ; for the court held clearly, that the rejoinder was a departure ; and therefore it was adjudged for the plaintiffe.^ VERE «. SMITH. 0±^^-^— /"'^'^T In the King's Bench, Easter Teem, 1671. [Reported in 2 Levinz, 5.] Debt upon aa obligation, by the plaintiff a brewer, against the de- fendant his clerk, conditioned to perform covenants, to account for all sums of money he should receive. Defendant pleads covenants per- formed. The plaintiff replies. That such a day £26 came to his hands, for which he has not accounted. The defendant rejoined, That he accounted modo sequente, viz., That certain malefactors broke into his counting-house and stole it, wherewith he acquainted the plaintiff et hocparatus est verificare ; upon which the plaintiff demurred. And now it was argued, 1st. That the rejoinder is a departure, for fulfiUing a covenant to account cannot be intended but by actual accounting ; whereas the rejoinder does not show an account, but an excuse for not accounting. 2. The rejoinder ought to conclude alpais, being an ex- press afiirmative that he accounted, in contradiction to what was denied in the replication, that he did not account. Cur' contra. To 1 Cossens v. Cossens, Willes, 25; Cutler v. Southern, 1 Saund. 116, accord. — Ed. 212 COLE V. HAWKINS. [CHAP. Y. the 1st, this is an account, and no departure ; to the 2d, it was better to conclude as here, than to the contrary ; for now the plaintiff hath liberty to traverse the robbery. Adjournatur. But after in Trinity term the demurrer was waived, and issue taken upon the robbery. COLE «. HAWKINS. In the King's Bench, Hilaet Tbem, 1716. [Reported in 1 Strange, 21.] Paekee, C. J., delivered the resolution of the court. This is an indebitatus assumpsit, laid 16th of January, 1706. The defendant has pleaded actio non accrevit infra sex annos. The plaintiff has replied a bill filed 23d of January, 12 Ann., and that the cause of action arose within six years before. The defendant has demurred generally, and it has been insisted on by his counsel that the replica- tion is a departure, there being seven years distance between the day in the declaration and the filing the bill as set forth in the replication. But we are all of opinion, notwithstanding, that the plaintiff must have judgment. This being only a parol promise, the time alleged in the declaration is only matter of form, not of substance; and not being a departure in a material point, is only a defect in form of pleading, which not being shown for cause of demurrer pursuant to the act for the amendment of the law, the defendant cannot take advantage of it. If a verdict had found the promise, or the filing the bill to be another day, that would not have vitiated the proceedings. 1 Lev. 110 ; 1 Keb. 566, 578 ; Hob. 164, 199. If the day had been substance, it would have been a departure ; and 80 it was adjudged in this court. Pas. 1 Geo. Stafford v. Forcer. That was upon a promissory note dated in 1704. The defendant pleaded actio non accrevit infra sex annos / the plaintiff replied a bill filed 12 Ann., and after a verdict the judgment was arrested, because in that case the day was material. If the day in this case should be looked upon as such, it would be in the defendant's power, in almost all cases, to fix the time and place. As where the plaintiff brings an action of assault and battery in London, the defendant pleads he made the assault in Middlesex, and that afterwards the plaintiff released all bat- teries except in London. By this he would make the place material, and the doctrine of bringing transitory actions where the plaintiff pleaded would fall to the ground, if the defendant should be allowed CHAP, v.] •WINCHELSEA V. HIGDEN. 213 by artificial pleading to make the time and place matter of substance. Vide Co. Litt. 282, *. Yel. 114. Judic' pro quei^. » OWEN" AND Another v. REYNOLDS. In the King's Bench, Michaelmas Teem, 1732. [Reported in Fortescue, 841.] Debt on bond conditioned to save harmless from tonnage of coals due to William Biddle. Defendant pleads non damnificat ; plaintiif replies that Biddle distrained for said coals, and defendant rejoins that nothing was due to Biddle for tonnage; this held to be a good re- joinder and no departure, for it fortifies the plea, and gives a good reason why he was not damnified. THE COUNTESS DOWAGER OF WINCHELSEA w. HIGDEDJ. In the King's Bench, Michaelmas Teem, 1732. [Reported in 2 Bamardiston, 193.] In debt upon bond the defendant craved oyer, and the condition appeared to be for performing covenants in a certain indenture, part of which were in the affirmative, part in the negative. As to the affirma- tive covenants he pleads quod performavit ; as to the negative, non infregit. The plaintiff replies that one of the covenants was for pay- ment of rent at the usual quarterly feasts, and that £10 10s. was arrear of it and unpaid at the feast of St. Michael, 1780. The defendant rejoins, that on the said day he tendered the money to the plaintiff, and he refused it. To this there was a demurrer, and a joinder in de- murrer; and the cause specially shown was, that this rejoinder was a departure from the plea. Mr. Booth, jun., argued on the part of the plaintiff, and cited Cro. Car. 76, 2 Saund. 82. Mr. Taylor on the other side argued, and said he did agree, that if the defendant had endeav- ored to excuse himself from the performance of this covenant by the act 1 Matthews v. Spioer, 2 Stra. 806; Serle v. Darford, 1 Ray. 120; Lee v. Rogers, 1 Ley. 110; Primer v. Phelps, 1 Salk. 222; Webly v. Palmer, 1 Salk. 222 ; Howard v Jennison, 1 Salk. 223 ; Thompson v. Fellows, 21 N. H. 425; Burr v. Baldwin, 2 Wend 580, (uxmd. See Arnold v. Arnold, 3 B. N. C. 81. — Ed. 214 NIBLET V. SMITH. [CHAP. V. of God or the like, this would have been a departure. But he submit- ted it, that upon the matter this was a performance of the covenant. In the case of Owen y. Reynolds, this term in the Common Pleas, the action was debt on bond with condition to save the plaintiff harmless from the tonnage of coals, the defendant pleaded non damnificatus ; the plaintiff replied a distress taken for it; the defendant rejoined that none was due. Upon this there was a demurrer; but that court held it to be no departure. The Chief Justice agreed that case to be law ; and said that the rejoinder there fortified the bar; but in the present case there is a departure ; for the matter in the rejoinder goes only by way of excuse ; tender ^nd refusal being not gajmsnt, but only dis- charging the party from damages. For this purpose Judge Page put the case of solvit ad diem pleaded to debt on bond. Upon evidence, tender and refusal will not maintain the issue ; which the Chief Justice agreed. Accordingly the court gave Judgment for the plaintiff} NIBLET V. SMITH. In the King's Bench, January 27, 1792. [Reported in 4 Term Reports, 504.] This was a replevin for taking the goods and chattels, to wit, one lime-kiln, &c., of the plaintiff; to which there was an avowry for rent in arrear. The plaintiff, in his plea' in bar, said that the lime-kiln before and at the said time when, &c., was affixed to the freehold of the piece or parcel of ground on which, &c., and as such was by law exempt from any distress for the arrears of rent in the avowry mentioned, and ought not to have been distrained for the same, &c. To this plea the defendant demurred generally. Hblroyd, in support of the demurrer. The plea in bar is bad on two grounds : first, it is inconsistent with, and is a departure from, the declaration, by stating the lime-kiln to be affixed to the fi-eehold, when the declaration had alleged it to be a chattel ; secondly, the lime-kilr being affixed to the freehold, no replevin will lie for it ; for if the de- fendant should succeed, it could not be delivered to him under the writ ' Clinton v. Bridges, 4 Leon. 79 ; Parker v. Middleton, 3 Lutw. 126 ; Chapman v. Chapman, Cro. Car. 76 ; Countess v. Crispe, 1 Salk. 221 ; White v. Clever, Eay. 1449 ; Sams v. Dangerfleld, 2 Mod. 31 ; Gambier v. Larkin, Com. 558 ; Lee v. Raynor, T. Ray. 86 ; Ross v. Hodges, Ray. 233 ; Warren v. Powers, 5 Conn. 373 ; Lord u. Cock- shut, 1 H. & McH. 40; Lamed v. Bruce, 6 Mass. 67 ; Darling v. Chapman, 14 MasB 101 ; McSherry v. Askew, 1 Yeates, 79, accord. — Ed. OHAP. v.] FISHER V. PIMBLEY. 215 of retorno f^hendo. In Co. Lit. 145 J, it is said, that a replevin lies for goods and chattels only. And a lime-kiln is as much affixed to the freehold as doors, windows, or a ftirnace, which are always considered as belonging to the freehold.^ Smith, contra. For the reasons already given by the defendant's counsel, this lime-kiln must be taken to be affixed to, and part of the freehold, and was not therefore liable to be taken as a distress. The court were of opinion that the plea in bar could not be sup- ported, because it was a departure from the declaration ; that the declaration, treating the lime-kiln as a chattel, might possibly have been true, because lime may be burnt in a portable oven, and the kiln need not therefore necessarily be affixed to the freehold : but that, as the plea in bar stated it to be affixed to the freehold, it was inconsistent with the declaration. Judgment for the defendant.^ -{ FISHER V. PIMBLEY. (p/, ^ ' In the King's Bench, Mat 9, 1809. [Reported in 11 East, 188.J To debt on bond, dated 12th of March, 1807, for £300, the defend ant craved oyer of the bond and of the condition, by which it appeared that the bond was given for the performance of an award of certain arbitrators to whom it was referred to arbitrate and determine con- cerning all causes of action, controversies, and demands whatsoever between the plaintiff and defendant, so as the award in writing under their hands should be ready to be delivered on or before the 12th of June, 1807 ; and then he pleaded that the arbitrators, in the condition named, did not make any award under their hands ready to be deliv- ered, &c., on or before the said 12th of June, and this he is ready to verify, &c. The plaintiff replied that the arbitrators in the condition named, within the time limited, &c., duly made their award in writing under their hands of and concerning the premises in the condition mentioned, ready to be delivered, &c., by -which they awarded that the defendant should pay to the plaintiff £124 5s. ^d. on the 8th of July, 1807, as a compensation for all the coal by him gotten in such manner as was therein before mentioned ; and they thereby further awarded mutual releases up to the date of the bonds of reference ; and that the 1 Bro. Abr. " Chattels," pi. 7. 2 Green v. James, 6 M. & W. 656 ; Lacey v. Umbers, 2 C. M. & R. 112, accord. — Ed. ! r 216 FISHER V. PIMBLET. [CHAP. V. plaintiff should also execute and deliver to the defendant, at his ex- pense, a bond in the penalty of £40, conditioned to indemnify the defendant from all actions, &c., and demands by J. Rothwell (and two others by name), on account of the defendant having worked or gotten any coal out of a certain estate called Shaw Place, and a certain lane adjoining, or either of them, before the date of the bonds of reference, &c. And then the plaintiff alleged that the defendant had notice of this award, but did not pay the £124 5s. 2d., the sum awarded. The defendant rejoined that the said supposed award is in the words fol- lowing, to wit, &c. ; and then he set out the whole award verbatim, wherein the arbitrators stated the bonds of reference, by which it appeared that the subject of reference was of all actions, controversies, &c., and demands, between the plaintiff and defendant, as before set forth, and that the arbitrators found "that the defendant had, at the date of the said bonds, worked and gotten divers quantities of coal belonging to the plaintiff, or to him and some other, person or persons, in and under a certain estate called Shaw Place, &c., and under a cer- tain lane adjoining, &c., and ' that the plaintiff demands from the defendant a compensation for all the coals so gotten by the defend- ant." And they awarded the defendant to pay to the plaintiff £124 5s. 2c?. on the 8th of July then next, " as and for a compensation for all the coal gotten by him as aforesaid ; " and then they awarded the mutual releases and the bond of indemnity from the plaintiff to the defendant, as mentioned in the replication. To this rejoinder the plaintiff demurred, and alleged for special cause, that such rejoinder was a departure from the plea, and neither confessed and avoided, nor denied, the matters pleaded in the replication, &c. The grounds of objection to the award were : Ist, its having directed the money to be paid to the plaintiff for coals stated to have been got- ten by the defendant belonging to the plaintiff, or to him and some other person or persons ; when the submission was confined to matters in difference between the plaintiff and defendant only. 2dly, That it directed a bond of indemnity to be given to the defendant, at his expense, against future claims and actions by three several persons, upon matters not submitted to the arbitrators, and was therefore un- certain and not final. And the validity of the first of these objections was very faintly questioned by Scarlett, on behalf of the plaintiff (sup- posing the rejoinder to be good). But against the second, he relied on Philips V. Knightley,' where an award that the defendant should exe- cute a covenant to indemnify the plaintiff against all costs, damages, and expenses which should happen by means of any further proceed- ings in an action begun at the instance of the defendant, and at issue 1 Stra. 903. CHAP, v.] FISHER V. PIMBLBT. 217 in C. B., wberein Marshall qui tarn was plaintiff, and the then plaintiff defendant, was held good. And he urged that, at any rate, if the award of the houd of indemnity were void, the award would only be void for that excess.^ The principal question, however, argued was, whether the rejoinder setting out the award in fact according to the truth, which award had been defectively set out by the plaintiff in his replication, were a departure fi-om the defendant's plea, wherein he had before stated that the arbitrators had made no award. Scarlett contended that it was a departure ; for a plea of no award means no award in fact ; and cited Farrer v. Gate,'* Skinner v. Andrews,' House V. Lander,* Harding v. Holmes,^ wherein several other cases in point were referred to, and Praed v. The Duchess of Cumberland." The defendant ought to have rejoined no such award as set out in th ' replication; and if issue had been taken on that, and any material variance had appeared between the award set out in the replication, and the award proved, the issue must have been found for the defendant. Tates, contra, was stopped by the court. LoED Ellenbobough, C. J. The last is the only point which was arguable. The award is clearly bad, inasmuch as it awards compen- sation to the plaintiff for coal gotten by the defendant belonging to the plaintiff, or to him and some other person or persons ; and though it directs a bond of indemnity to be given by the plaintiff to the defend- ant against any demands by three certain persons, non liquet that those were the persons interested with the plaintiff in the coals which had been gotten by the defendant, and for which the compensation was awarded. The compensation, therefore, has been awarded to the one party, without any equivalent appearing on the other side. Then the award being bad, the only question is, whether the defendant can show such bad award in his rejoinder, consistently with his former allegation in the plea, that there was no award. The plaintiff in his replication sets out an award, and if he had set it out truly, it is clear that the defendant might have demurred to it ; but not having set it out truly, where is the inconsistency, or departure from the plea, in the defendant's doing that which the plaintiff ought to have done, setting out the award in fact, and then demurring to the true award so set out? He thereby still maintains his former allegation, — that there was no award ; in other words, that there was no legal and valid award under the submission, which is the same as no award. There i« no inconsistency in this, and therefore no departure. 1 Vide Ingram v. Milnes, 8 East, 446. 2 Palm. 511. ' 1 Lev. 245. * lb. 85. < 1 Wils. 122. « 4 Term Rep. 585, and 2 H. Blac. 280. 218 GLEDSTANE V. HEWITT. [CHAP. V Le Blanc, J.^ The award cannot be maintained, as it was made of matters not submitted to the arbitrators; for the submission was only of matters in difference between the plaintiff and the defendant ; and the award is of matters between the defendant and the plaintiff and other persons. If the matters submitted between these parties had com- prehended matters in difference between the defendant and the plaintiff together with others, then an award of compensation to the plaintiff for the whole value of the coals taken, with an indemnity from him to the defendant against the claims of those others for their proportions, might have done ; but the submission was not so extended. Then, as to the departure, the defendant by his rejoinder only puts the plain- tiff's case in the same state on this record as it would have been if he had set out the award truly ; and it only shows that the award in fact made is not a good award in point of law. Batlbt, J. A submission of matters in difference between A. and B. does not include matters in difference between A. and B. and others jointly ; the award, therefore, was bad. Then a plea of no award means no award according to the submission ; that is the plain mean- ing of it. I do not agree with the argument, that the defendant might have defended himself by taking issue upon the award as stated in the replication, for there was such an award as is there stated, but it was not an award made conformably to the submission, which would have appeared to be the case if the whole had been truly set out in the replication. Then the rejoinder first setting out the true award, and then demurring to it, is no more, in effect, than saying that there was no award conformable to the submission, and therefore no award ; which maintains the plea. Judgment for the defendant? GLEDSTANE v. HEWITT. In the Exchequee, Teinitt Term, 18.31. [Reported in 1 Crompton ^ Jervis, 565.] Detinue on bailment of a promissory note, delivered by the plain- tiff to the defendant, to be redelivered on request. Averment of a special request.^ 1 Grose, J., was absent from indisposition. 2 Young V. Beck, 1 C. M. & R. 448 ; Hiokes v. Craokwell, 3 M. & W. 72 ; Gisborne V. Hart, 5 M. & W. 50 ; Allen v. Watson, 16 Johns. 205, accoid. Anon. KeUw. 175 a Skinner v. Adams, 1 Lev. 245 ; House v. Launder, 1 Lev. 85 ; Morgan v. Man, 1 Lev. 127 ; Garrett v. Weeden, 1 Lev. 133 ; Roberts v. Marriett, 2 Saund. 188 ; Harding v. Holmes, 1 Wils. 122 ; Praed v. Duchess, 4 T. R. 585 ; s. c. 2 H. Bl. 250 (semble) ; Joy V. Simpson, 2 N. H. 179 ; Barlow v. Todd, 3 Johns. 367, contra. — Ed. •> There was a second count on a finding. CHAP. V.J GLEDSTANE V. HEWITT. 21t) Plea, that before the exhibiting the bill of the plaintiff, to wit, &c, the plaintiff delivered the said promissory note to, and deposited and lodged the said promissory note with, the defendant, to be by him kept as a pledge and security for the repayment of a certain sum of money, to wit, the sum of £50, then lent and advanced by the defend- ant to the plaintiff, upon the faith and security of the said promissory note, and which said sum of £50 had not at any time before the exhibit- ing the bill, &c., been repaid to the defendant, but still remained wholly due and unpaid. By reason whereof, the defendant from thence hith- erto detained, and still detains, &c., &c. Replication, that the plaintiff, after the said depositing and lodging the said promissory note with the defendant, and before the exhibiting the bill, &c., was ready and willing, and then and there tendered and offered to pay to the defendant the said sum of £50, and then and there required the defendant to redeliver up to him the said promissory note, which the defendant then and there wholly refused to do ; wherefore, &c., &c. Special demurrer, showing for cause, that plaintiff biad in his said replication departed from the declaration, and relied upon a new ground of action, and that the matters alleged in the replication did not support the declaration, but were inconsistent with it. Cresswell, in support of the demurrer. This replication is a depart- ure ; it does not support the declaration, but it contains matter which would defeat the right of action as stated in the declaration. The contract stated in the plea, and admitted by the replication, is totally different from that stated in the declaration. The one alleges a gen- eral bailment, the other a bailment for a special purpose, which may be, and ought to be, traversed in the replication.^ Wiffhtman, contra. The gist of the action of detinue is the de- tainer ; Issac V. Clarke ; ^ and the replication does support the declara- tion, because it shows the detainer to be unlawful ; it cannot, therefore, be said to be a departure, for a departure is where the replication con- tains matter which does not support, but defeats the declaration, and varies from it in some material part. Cresswell, in reply. LoED LTNDHtTEST, C. B. The question raised by this demurrer is, whether the replication is a departure. The declaration is in detinue, upon a bailment in the ordinary form, to be redelivered on request. We are of opinion, that, in the action of detinue, the detainer is the gist of the action, and that the bailment is merely inducement. Other- 1 So much of the case as relates to the materiality of the allegation of bailment ii omitted. — Ed. 2 1 Koll Kep. 128 ; Bull. N. P. 51 ; 2 Bulstrode, 306. 220 LEGO V. EVANS. [CHAP. V. wise, iu the cases where a bailment different from the one in the declaration is stated in the plea, it would have been necessary for the defendant to have traversed the bailment laid in the declaration. In Bateman u. Ellman, it was determined that the bailment laid in the declaration was not material. I am therefore of opinion that there is no departure, and that our judgment must be for the plaintiff. Baylet, B. 1 am of the same opinion. Vaughan, B. I am of the same opinion. BoLLAND, B. I concur with the rest of the court, A depai"turo must be in something material. Lee v. Rogers.* The gist of the action of detinue is the detainer, and it does not appear to me that the allega- tion which the defendant says has been departed fi-om, is material. Judgment for the plaintiff ■ ' '- "' LEGG V. EVANS and WHEELTON. liT THE EXCHEQUBE, HiLAET TeEM, 1840. \Re.-ported in 6 Meeson Sf Welsh), 36.] Teovee against the defendants, as sheriff of Middlesex, to recover the value of certain pictures and picture-frames, of which the declara- tion stated that the plaintiff was "lawfully possessed as of his own property." Plea : that, before the defendants converted and disposed of the said goods and chattels, one William Thompson had sued out of the Court of her Majesty the Queen, before the Barons of her Exchequer at Westminster, a writ of fieri facias, directed to the sheriff of Middle- sex, commanding him of the goods and chattels of the plaintiff, to levy, &c. ; and that by virtue of that writ they (the defendants) being such sheriff as aforesaid, seized, and took in execution, the said goods and chattels, for the purpose of levying the moneys so directed to be levied, which was the conversion in the declaration mentioned. Replication : ^ Riglit of possession to the said goods at the time when by virtue of a lien ; that before the said time when, &c., in the declaration mentioned, to wit, on, &c., one David Williams, being then lawfully possessed as of his own property of the said goods and chattels in the declaration mentioned, delivered the same to the plaintiff, for the purpose of the plaintiff, in the way of his trade of a carver and gilder, which he then carried on, performing certain 1 1 Lev. 110. 2 The substance only of the replication is here given. — Ed. CHAP. V.J LEGG V. EVANS. 221 work and labor upon the said goods and chattels, and supplying cer- tain materials for the same ; and the plaintiff then had and received the said goods and chattels for the purposes aforesaid, and in the way of his said trade or business then performed upon the said goods and chattels certain work and labor, and supplied certain materials for the same; in respect of which said work, labor, and materials, the said D. Williams then became, and was, and from thence hitherto has been, and still is, indebted to the plaintiff in a large sum, to wit, £311 13s. bd. ; and the plaintiff further says, that after the said goods and chat- tels were so delivered to him as aforesaid, and whilst they remained in his possession, and before the said time when, &c., to wit, on, &c., it was agreed between the plaintiff and the said D. "Williams, that, in consideration that the plaintiff, at the request of the said D. W., would draw, and indorse, for the use of the said D. W., certain bills of ex- change, the plaintiff should have a right to hold the said goods and chattels for securing the payment by the said D. W. of such bills of exchange ; and the plaintiff says, that afterwards, in pursuance of the said agreement, and before the said time when, &o., to wit, on the respective dates of the said bills in that plea after mentioned, he (the plaintiff), at the request of the said D. W., and for his use, drew and indorsed certain bills of exchange, to wit, &c. (setting out three bills drawn by the plaintiff upon and accepted by the said D. W., for the several sums of £55, £50, and £40, and payable to the order of the plaintiff, one at two, and the other at three months after date respec- tively), which said several bills, from the time they were so drawn and indorsed as aforesaid, continually until the said time when, &c., re- mained, and still remain, wholly unpaid by the said D. W. ; and the plaintiff further says, that from the time the said goods and chattels were delivered to the plaintiff as in that plea aforesaid, until the conversion thereof in the declaration mentioned, the said goods and chattels remained in the possession of the plaintiff, and that he (the plaintiff), before and at the said time when, &c., had, and but for the said conversion thereof would still have had, a lien upon the said goods and chattels for the aforesaid sum so due to the plaintiff for the said work, labor, and materials, and a right to hold the said goods and chattels for securing the payment by the said D. Williams of the said bill of exchange ; and the plaintiff, in fact, further says, that by means of the premises in this plea mentioned, and of the said lien and right to hold the said goods and chattels, and in no other manner whatso- ever, the plaintiff, at the time of the said conversion of the said goods and chattels as in the declaration mentioned, was possessed of the said goods and chattels as in the declaration also mentioned ; of all which premises in this plea aforesaid the defendants, before and at the time 222 BARTLETT V. WELLS. [CHAP. T. they seized and took in execution the said goods and chattels as in the said plea alleged, had full notice. Verification. Special demurrer, assigning for cause, that the replication was a departure^ from the declaration. Kennedy, in support of the demurrer. The replication is bad, as being a departure from the declaration. The declaration alleges that the plaintiff was possessed of the goods as of his own property ; but the replication sets up a mere right to the possession on the ground of having a lien on them, which is a departure from the declaration. Mellor, contra. As to the replication being a departure, surely a person having this right might declare in trover, alleging a general property, and yet, on a subsequent pleading, set up a special property, sufficient to maintain trover; it is not inconsistent with, but explanatory of, his interest. [Parke, B. It is not a departure. Any person having a right to the possession of goods may bring trover in respect of the conversion of them, and allege them to be his property.] ALDBESoiir, B., and Rolfb, B., concurred. Judgment for the 'plaintiff 1^ BARTLETT -o. WELLS. In the Queen's Bench, January 17, 1862. \Tie^orted in 1 Best ^ Smith, 836.] Declaration for goods bargained and sold, and goods bargained, sold, and delivered ; and for work and labor ; and for money paid ; and for money due on accounts stated. Pleas. 1. Never indebted. Issue thereon. 2. That the defendant, at the time of the contracting of the said debt, was an infant within the age of twenty-one years. 1 Only so much of the case is given as relates to the question of departure. — Ed. 2 Thorp V. Wingfleld, 3 Leon. 203; Butler v. Coll. of Phys., Cro. Car. 256 ; Gar- grave «. Smith, 1 Salk. 221 ; Dudlow v. Watchom, 16 East, 39 ; "Winstone v. Linn, 1 B. & C. 460; Prince o. Brunatte, 1 B. N. C. 435; Arhouin t. Anderson, 1 G. & D. 403; Morris u. Walker, 15 Q. B. 589; Smith o. Marsack, 6 C. B. 486; Rixon e/. Emary, L. R. 3 C. P. 546 ; Fowler v. Macomb, 2 Root. 395, 396 ; Mathews w. Ham- blin, 28 Miss. 611 ; Breck v. Blanchard, 22 N. H. 303 ; Hallett v. Slidell, 11 Johns, 56 ; Dutton V. Holden, 4 Wend. 643 ; Bame v. Drew, 4 Den. 287 ; Haley v. McPherson. 8 Humph. 104; Beach v. Trndgain, 2 Gratt. 219, accord. — Ed. CHAP. V.J BARTLETT V. WELLS. 223 Replication to the second plea upon equitable grounds: that the de- fendant, before and at the time of the accruing of the causes of action in the declaration mentioned, with knowledge of his true age, falsely and fi-audulently represented to the plaintiflf that he the defendant then was of full age, whereby the plaintiff, then having no knowledge or means of knowledge that the defendant then was not of full age, was induced to make and enter into the said contracts in the declara- tion mentioned, and to supply the said goods therein mentioned to the defendant ; and that, but for such false and fraiidulent representations as aforesaid, the plaintiff would not have entered into the said contracts or supplied the said goods, or any part thereof. Demurrer and joinder therein. Gibbons, for the defendant. First, the replication, if treated as a legal replication, is a departure from the declaration. " A departure takes place when, in any pleading, the party deserts the ground that he took in his last antecedent pleading, and resorts to another ; " Stephen on Pleading, p. 32, 6th ed. The declaration is upon a contract. The replication making the liability of the defendant to depend on a false representation, converts the action into an action in tort, which cannot be done ; Manby v. Scott,-' Johnson v. Pie,^ Jennings v. Rundall,* Green V. Greenbank.* [CocKBtrEN, C. J. Those cases only decided that, if goods are delivered to an infant under a contract, the party who deliv- ered them cannot bring trover or case against him, and are not appli- cable to a fraudulent representation made by an infant.] The plaintiff has elected to declare on a contract.' Seasley, contra. The replication is good as an equitable replication. [Ceomptost, J. In Bullen and Leake's " Precedents of Pleadings," which contains a very convenient and well-arranged collection of rules as to when a defence on equitable grounds may be pleaded, it is laid down, page 332, note (a) : " Equitable replications will not be allowed which are inconsistent with the legal right alleged in the decLaration." And, after citing the instances in Hunter v. Gibbons," and Gulliver v. Gulliver,' they add : " These replications are objectionable, both as being departures from the declaration and as setting up matter for a suit in equity instead of a cause of action at law." This replication is contrary to both of the rules there laid down.] Gibbons was not called upon to reply. CocKBFEN, C. J. The replication is a departure. The declaration > Sid. 109, 129. » 1 Keb. 905, 913, 1 Lev. 169 ; s. o. nom. Johnson v. Pye, 1 Sid. 258. • Per Lord Kenyon, 8 T. R. 335, 336. •• 2 Marsh. 486 * Only so much of the case is gi'en as relates to the question of departure. — Ed, « 1 H. & N. 459. ' 1 Ih. 174 224 BRINE V. GREAT WESTERN RAILWAY CO. [CEaP. V. is on a contract for money payable for goods supplied to the defendant ; the plea answers that ; the plaintiff seeks to put the plea aside by reply- ing a tort. That is a departure, the nature of the cause of action being changed. Crompton, J. Also the replication is bad as a departure, which is an objection open on general demurrer (though there has been some doubt as to that), because it sets up a tort, the original cause of action being a contract. Mblloe, J. I am also of opinion that the replication is a departure ; and therefore, on both grounds, the demurrer ought to be allowed. Judgment for the defendant.^ BRINE V. THE GREAT WESTERN RAILWAY COMPANY In the Queen's Bench, Febeuaet 22, 1862. [Reported in 2 Best !f Smith, 402.] The declaration stated that the plaintiff was lawfully possessed of a messuage and premises situate at Adber, in the parish of Trent, in the County of Somerset, in which messuage and premises the plaintiff and his family resided and dwelt. Nevertheless the defendants " wrong- fully raised and made and formed, and caused and procured to be raised, made, and formed, a certain embankment of earth near the plaintiff's said house as aforesaid, and wrongfully continued the same from thence hitherto ; by reason whereof, from thence continually to the com.mencement of this suit, divers large quantities of water have run and flowed down to, upon, against, and into the said messuage and premises of the plaintiff, whereby the walls, roofs, ceilings, paperings, floors, stairs, doors, and other parts thereof and therein being, have been greatly weakened, injured, wetted, and damaged ; and by reason of the premises the said messuage and premises of the plaintiff became, and were, and have been, and are damp, incommodious, and less fit for habitation ; and also by reason of the premises the plaintiff and his family have been, during all the time aforesaid, rendered sick and ill, and the plaintiff has been obliged to call in and employ divers medical men in and about curing the sickness and illness so occasioned as aforesaid, and to expend and lay out large sums of money in paying 1 De Roo V. Foster, 12 C. B. n. s. 272; Thames Works v. R. M. S. P. Co., 13 C B. N. 8. 858; Hunter v. Gibbons, 1 H. & N. 459 ; Reis v. Scott Co., 2 H. & N. 21 Wbeelton v. Hardisty, 26 L. J. Q. B. 265, accorrf. — Ed. CHAP. V.J BRINE V. GREAT WESTERN RAILWAY CO. 225 the same, and in and about removing and causing to be removed the said water so flowing upon and into his said messuage as aforesaid." Second plea. That the said embankment was raised, made, and formed, and continued by the defendants, under and by virtue of the powers of certain Acts of Parliament granted in that behalf, to wit, « The Wilts, Somerset and Weymouth Railway Act, 1845," « The Great Western Railway Act, 1851," and " The Great Western Railway (Berks, Hants and Wilts, Somerset and Weymouth) Act, 1854." Replication to the second plea. That, although true it is that the said embankment was raised, made, and formed, and continued by the defendants, under and by virtue of certain Acts of Parliament referred to in the said second plea, yet the plaintiff says that this is no bar to his claim in this action, because he says that the running and flow- ing of the water upon, against, and into the plaintiff's messuage, as in the declaration mentioned, was and is occasioned by the wrongful con- struction and ne gligent and improper raising, making, and forming of the said embankment, and the want of proper and sufficient drains to the same, and the continuing the said embankment so wrongfully con- structed and insufficiently drained from thence hitherto, whereby and by reason whereof, after the raising, making, and forming the said em- bankment, and after the making and completing the railway of which the said embankment formed a part, the said running and flowing of the water upon," against, and into the plaintiff's said messuage took place, and not otherwise. Demurrer and joinder therein. The demurrer was argued in this term, January 24th, by — Montague Smith (with him Gadsden), for the defendants. The re- plication is a departure from the declaration, not a new assignment, The declaration complains of damage to the plaintiff's dwelling-house by the wrongful erection and continuance of an embankment; the replication, admitting that the erection and continuance of the embank- ment were authorized by the statutes referred to in the plea, introduces a new cause of action, viz., negligence in the mode of erecting the embankment and in not providing proper and sufficient drains. The plea is an answer to the declaration, but would not be a good rejoinder to the replication ; and that is a test whether the replication is a de- parture from the declaration. [He referred to 1 Chitt. on Plead. 674, 7th ed., by Greening, and the cases cited in note (1) to Richards v. Hodges.^] [CocKBUEN, C. J. Suppose the statutes had not been pleaded, and the case had gone down to trial, on the plea of not guilty; it would not have been necessary for the plaintiff to prove negligence 1 2 Wms. Saund. 84 a, 6th ed 16 226 BRINE V. GREAT WESTERN RAILWAY CO. [CHAP. 'V. This is like the case of an action against a person for doing something on his own land ; a replication admitting that the defendant had a right to do the act, but that it was done negligently, would be a de- parture.] The replication puts forward as a distinct caube of action, not an excess of authority, but negligence in erecting the embankment ; and therefore it does not support and fortify the declaration, but states a new cause of action. A departure in pleading is ground of general demurrer. [Ckompton, J. Some doubt has been thrown upon that, but we so held in Bartlett v. Wells. CocKBtJEN, C. J. I think de- parture is not matter of form, but of substance.] J. JB. Kar slake (with him Prideaux), for the plaintiff. First, de- parture is not ground of general demurrer. [Ceompton, J. It would be inconvenient if it was not, because the only mode of taking advan- tage of a departure is by demurrer, and special demurrers are abolished. The defendants might have gone before a Judge at chambers and have the replication reformed. Cockbtten, C. J. That would not be a convenient or satisfactory mode of disposing of the matter. One of the grounds of our decision in Bartlett v. Wells was, that the replica- tion was a departure.] Secondly, the replication is not a departure. It is consistent with the declaration, and states the same cause of action. The declaration states that the defendants " wrongfully " erected the embankment ; and that word may be taken to include negligence. The plea founded on the statutes is prima facie an answer to the declaration ; and the rep- lication answers the plea by showing that, though the erection of the embankment was rightful under the statutes, it was wrongful by reason of negligence. [Ceompton, J. The word " wrongful " in this declaration may be construed to mean without any authority under law or statute. The defendants set up certain things as a lawful ex- cuse ; then the plaintiff may show that the excuse is not sufficient. CocKBUEN, C. J. The plaintiff, who knows what his cause of action is, should state it as early as possible. Why, by his omission to allege negligence in his declaration, should the defendants be put to plead their Acts of Parliament ?] The plaintiff, in framing his declaration, does not know what defence will be set up, and he is not bound to look through the defendants' Acts of Parliament to see whether they have a justification under them. [Ceompton, J. The declaration in Turner v. The Sheffield and Rotherham Railway Company,^ did not allege that the houses injured by the works of the railway company were so injured without the consent of the owners, and were not spe- cified in the schedule annexed to the Company's Act ; those allegations » 10 M. & "W. 425. CHAP, v.] BRINE V. GREAT WESTERN RAILWAY CO. 227 were introduced in the replication to a plea justifying under the Com- pany's Act. The advantage of this mode of pleading is, that the authority under which the defendants did the act complained ot is shown.] The cause of action is contained in the^er quod, as in Law- rence V. The Great Northern Railway Company,^ so that the means by which the damage was caused need not be stated. The forms ot' pleadings given in schedule B to the Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76, exclude all common words of mere form, such as " vi et armis," " wrongfully," &c. In an action for diverting the flow of a stream from the defendant's mill, "No. 30, the declaration simply states "that the defendant, by cutting the bank of the said stream, diverted the water thereof from the said mill." This declaration would have been good without the word " wrongfully." Montague Smith, in reply. Although the forms given in the Com- mon Law Procedure Act, 1852, 15 & 16 Vict. c. 76, have left the dec- laration at large, still, where negligence is the gist of the action, the declaration should allege it. [Ceompton, J. The plaintiff should state in his declaration, as shortly as he can, the legal result of the facts which constitute his cause of action.] The plaintiff must recover on the statement of the cause of action in his declaration. Only one tenth of the damage may have arisen from the negligence, and the plaintiff may have already received compensation for that occasioned by erecting the embankment. If the declaration had charged negli- gence, the defendants would have pleaded, as to erecting the embank- ment, the authority under their statutes, and as to the negligence, not guilty ; or they would only have pleaded a plea to the negligence. This declaration would have been supported without proof of negli- gence; whereas the repUcation puts forward negligence as the real cause of action, and is therefore a departure ; Palmer v. Stone,^ cited in note (1 ) to Richards v. Hodges." [J. B. Kar slake. Palmer v. Stone is commented upon by Manning, Serjt., in note {a) to Evans v. Elliott.*] [Ceompton, J. The repUcation in that case set up entirely new mat- ter.] It must be assumed that the Acts of Parliament under which the defendants justify were known to the plaintiff. Cur. adv. vult. February 22. Ceompton, J. (sitting alone), read the following judgments. Mbllob, J. The declaration in this case alleged that the defendants, whilst the plaintiff was possessed of and residing in a certain dwelling- house, wrongfully raised and continued a certain embankment of earth near the plaintiff's said house, by reason whereof large quantities of water have run and flowed down to and upon and against the said 1 16 Q. B. 643. ^ 2 WUs. 96. » 2 "Wma Saund. 84 c, 6th ed. * 6 N. & M. 606, 608. 228 BRINE V. GKEAT WESTERN RAILWAY CO. [CHAP. V. dwelling-house of the plaintiff, rendering it damp and incommodious, and less fit for habitation, &c. To this declaration the defendants, for a second plea, pleaded that they raised and continued the said embank- ment under the powers and provisions of three Acts of Parliament granted in that behalf. To this plea the plaintiff replied that, although true it was that the said embankment was raised, made, and continued by virtue of the powers and provisions of the said Acts of Parliament, yet he said that the plea was no bar to his claim because he said that the running and flowing of the water to and against his said dwelling- house, in the declaration mentioned, was occasioned by the wrongful construction, and negligent and improper raising and making of the said embankment, and the want of proper and sufficient drains to the same. To this replication the defendant demurred, alleging it to be a departure from the declaration. Upon the argument it was contended, by the plaintiffs, that a de- parture in pleading was not ground of general demuiTcr ; but we thought this point not open for the plaintiff in this Court, after our recent decision in the case of Bartlett v. Wells.^ See also note (1) to Richards v. Hodges.^ The real question on the argument was, whether the replication was a departure from the declaration. On considering what is the grava- men of the charge alleged in the declaration, I am of opinion that the replication is no departure. The substance of the complaint in the declaration is the wrongfully raising, making, and continuing an em- bankment near the plaintiff's dwelling-house, and by means thereof wrongfully causing water to run and flow to and against such dwelling- house, whereby it was rendered damp and incommodious, &c. The plea excuses the making and raising of the embankment under the provisions of three Acts of Parliament, to which the plaintiff in sub- stance replies, that his complaint against the defendants is, not for the lawful exercise of the powers conferred upon them, but for causing the water to run and flow against his dwelling-house by the wronoful construction of the embankment, and by the negligent and improper raising and making it without proper drains. It appears to me that the substance of the complaint, both in the declaration and replication, is the wrongful causing of the water to run and flow against the dwelling- house of the plaintiff; and although it may be doubtful whether the 1 Peare v. McKusick, 25 Me. 75 ; Keay v. Goodwin, 16 Mass. 1 ; Joy v. Simpson, 2 N. H. 179; Tarleton v. Wells, 2 N. H. 306; Sterns v. Patterson, 14 Johns. 132; Andrus v. Waring, 20 Johns. 153 ; Harwood v. Tappan, 2 Speer, 547, accord. But see Serjeant Manning's note, 6 N. & M. 607 ; West v. Nibbs, 4 C B. 181 ; Paine v. Fox, 16 Mass. 133. Departure is no ground for a motion in arrest of udgment. Lee «. Rayner, T. Bay, 86. — Ed. 2 2 Wms. Saund. 84/, 6th ed. jIHAP. V.j BRINE V. GREAT WESTERN RAILWAT CO. 229 replication is to be considered as an informal traverse of the plea, or in the nature of a new assignment, it appears to me not to be obnox- ious to the very wholesome rule against departure in pleading. In Co. Litt. 304 a, as cited in note (1) to Richards v. Hodges,^ " a departure in pleading is said to be, when a man quits, or departs from the ground which he has first relied upon, and has recourse to another ; " and the rule is stated by Tindal, C. J., in Prince v. Brunatte,^ in the following terms : "Undoubtedly, where a replication does not consist with or fortify the declaration, it is a departure in pleading ; for a plains tiff is not entitled to declare in respect of one right, and then to set up another it. hili replication. The only question here is, whether this replication does not set up a title inconsistent with that disclosed in the declaration." Another test of a departure in pleading is stated by Tindal, C. J., in Smith v. NicoUs,* as follows: "That- which is a depart- ure in pleading is a variance in evidence ; and if the evidence in support of the replication would sustain the allegation in the declara- tion, there is no departure." Applying that test to the present case, it appears to me that the evidence necessary to prove the matter alleged in the replication is not inconsistent with, but would clearly support, the allegations in th6 declaration. Tried therefore by the test of variance in evidence, as suggested in Smith V. Nicolls, I think that the objection fails, and that the plaintiff is entitled to recover on this demurrer. The case of Palmer v. Stone,* cited by Mr. Smith, is clearly distinguishable, inasmuch as the plea waa that the defendant impounded the mare damage-feasant, which is a private trespass, whereas the rejoinder, that the mare was mangy, set up that which is a common nuisance. I am therefore of opinion that the plaintiff is entitled to judgment. Ceomptout, J. I concur with my Brother Mellor in thinking that the replication in this case is no departure from the declaration. The declaration is for wrongfully, that is, without lawful excuse, causing the water to flow on the plaintiff's land and against his house by means of an embankment, and so injuring his premises; and the plea is a jus- tification for so causing the water to flow and injure the premises under the authority conferred on the defendants by three Acts of Parliament. The replication is very inartificially drawn, but it appears to me in substance to avoid the plea, either by way of informal denial that the acts complained of were justified by the authority of the statutes, or by way of showing how they were not justified. The replication commences by a statement that it is true that the embankment was raised under the powers of the Acts, and then goes I 2 Wms. Saund. 84 a, b, 6th ed. 2 1 Bing. N. C. 435, 438 ; 1 Scott, 342, 34& » 5 Bing. N. C. 208, 218; 7 Scott, 147, 164. ♦ 2 Wils. 96. 230 BRINE V. GREAT WESTERN RAILWAY CO. [CHAP. T. on to show that it was negligently and improperly constructed, so as to show that it was not justified by the powers of the Acts. 'J'his seems repugnant and inartificial, but, taken according to its real meaning, seems to me to amount to saying, — though you had the authority of the Acts of Parliament, and were raising your embankment under their authority, yet you did not so construct your embankment as to make it a work done under the authority of the statutes. The distinction is now clearly established between damage from works authorized by statute, where the party generally is to have com- pensation, and the authority is a bar to an action, and damage by reason of the works being negligently done, as to which the owner's remedy by way of action remains ; and it seems to me that the effect of the plea and replication, fairly considered as on general demurrer, is, that the plea says, what you complain of arises from works justified under statutes, and for which your remedy, if any, is for compensation ; and that the replication inartificially answers this by saying the works causing the injury were not authorized by the Acts of Parliament, but were negligent and improper works, for which you are answerable in damages. "Whether the replication is a mere informal denial, or whether it ex plains why the plea is not a bar, or is in the nature of a replication of excess, it is not necessary to inquire. The plea, pleaded in a compendious and general form, that the works were done under the authority of the statutes must, I think, be con- strued as if it contained all the necessary averments of a special plea expanded on the record, and would, I think, be bad if not construed to contain expressly or impliedly an averment that the works were such as were authorized by the Act. And to this averment the repli- cation seems to me to contain a direct answer. It might depend on the mode in which the special plea, if expanded on the record, were framed, whether the formal mode of answering the plea would be by a denial of the averment of the acts complained of being justified by the statutory authority, or whether a new assignment or replication of excess might be rendered necessary by reason of the plea containing an averment of qucB est eadem, or of the acts being done under the statutory authority without any unnecessary damage. But these ques- tions no longer arise in the general mode of pleading adopted in this case, which seems sufiicient, as special demurrers are no longer allowed. It is sufiSoient if the replication contains, as I think it does, either a denial that the acts complained of were authorized by the statutes, or an explanation how they were not so authorized. Suppose that this case had arisen before the new rules of pleading, when the whole matter of defence would have arisen under the general CHAP, v.] BEING V. GREAT WESTERN RAILWAY CO. 231 issue of Not guilty. The plaintiff would have proved the injury to liis premises by the water being thrown upon them by means of the embankment. The defendants would have shown their authority under the Acts of Parliament, and the plaintiff's answer would have been that the construction of the works was such as was not authorized by the statutes. The evidence which would prove the replication would therefore support the declaration, according to the test proposed by Lord Chief Justice Tindal, cited by my Brother Mellor ; and it should be observed that the facts in the replication do not the less prove the declaration because the replication contains something more in answer to the plea than would be necessary to prove the declaration, so long as the new matter is not inconsistent with that in the declaration. The case in principle does not differ from the ordinary case of a plain- tiff replying, to a plea setting up a license or authority in law, or in fact, or under a deed, that the acts were not such as were covered by the Ucense, or were acts done in excess of it.^ The plaintiff was not called upon to anticipate the defence by showing that the works were not justified by reason of an Act of Parliament which might never be set up. Such mode of pleading would probably be improper, and the matter alleged would probably have no effect on the subsequent plead- ings, and be treated as merely idle ; as in the case when a plaintiff alleges in his declaration that a defendant, from whom he expects a plea of infancy, was of full age when he executed the instrument declared on. Such pleading is what has been called "leaping before you come to the hedge." I think that the plea in the present case must be taken to aver that the grievances complained of were such as were justified under the authority of the statutes, and that the replication is not in the nature of bringing forward a new cause of action, but avoids a plea either by an informal denial of the implied averments of the plea, or by stating matters which show how the plea does not answer the declaration, because the grievances in the declaration were not such as the statute authorized. If indeed it could be made out, as argued by Mr. Smith, that the replication disclosed a new distinct cause of action, it would no doubt be a departure ; but after consideration, and with great respect for the doubts thrown out in the course of the argument on this part of the case, I construe the replication as not complaining of the breach of some specific statutory duty, as for the building of a bridge or making a communication, but as averring and undertaking to prove that the construction of the works was so faulty as not to be under the protec- 1 See Bracegirdle v. Peacock, 8 Q. B. 174, 185, 186. 'JB2 BRINE V. GREAT WESTERN RAILWAY CO. [CHAP. V. tion of the statutes ; in other words, as alleging that the grievances complained of in the declaration were not occasioned by the building of an embankment which the statutes authorized, because the statutes must be taken to authorize properly constructed embankments only. The replication seems to me to set up the improper construction of the embankment in question as an answer to the supposed protection under the statutes, and so to rely on the plaintiff's common-law right, claimed in his declaration, to have damages for the mischief occurring from the water being thrown on his land without any lawful excuse. I therefore concur with my Brother Mellor in thinking that our judgment should be for the plaintiff; but the decision must betaken as the decision of him and myself only, as the Lord Chief Justice is not prepared to assent to the judgments we have delivered. Judgment for the plaintiff. CHAP. VI."} BATT v. BRADLEY. CHAPTER VI. NEW ASSIGNMENT. PKETTYMAN v. LAWRENCE. In the Common Pleas, Hilaet Teem, 1591. [Reported in Crake's Elizabeth, 812.] Trespass quare domum et clausa sua fregit. The defendant pleaded, that the house is called Crable-house, and one of the closes is Black-Acre, and the other is White-Acre, and pleads that they are his freehold ; and so justifies. The plaintifi" saith, that the trespass done was in the house called Crable-house, and in Black-Acre, which are his fi-eehold, absque hoc that they are the freehold of the defend- ant; and that the trespass was done in another place, containing twenty acres, alias quam White-Acre, &c. It was thereupon de- murred : for it was said, when the plaintiff makes a new assignment, so that the defendant hath not agreed to him, and hit every parcel intended in the declaration, this new assignment is as a new declara- tion, to which the defendant shall have a new answer in all, and is a waiver of the former pleading in all ; wherefore he ought to have omit- ted his traverse. And of that opinion was Walmsley : but all the other justices e contra; for in regard that the defendant hath hit some of the places wherein the plaintiff intended the trespass, and pleaded thereto, the plaintiff may well answer to that part, and the defendant shall have no other answer ; as if the defendant had hit one place, and had confessed the action therein, the plaintiff needed not make any answer thereto; and the defendant shall not waive his answer, and answer to all de novo. Wherefore it was adjudged for the plaintiff. BATT u. BRADLEY. In the King's Bench, Trinity Teem, 1606. [jReporterf in Crake's James, 141.J Teespass quare averia sua cepit at Kymbolton, and chased them, &c. The defendant justifies in such a close for damage-feasant. The 234 BATT V. BRADLEY. [CHAP. VL plaintiff shows, that the place where was another close ; whereupon the defendant demurred, pretending that the plaintiff njver made any new assignment, but where the writ is quare clausum freyit} ' In Martin v. Kesterton, 2 Blackst. 1089, on a demurrer to a declaration in tres- pass quare clausum /regit, containing neither tlie number, names, or any description of the closes, Blackstone, J., delivered the following opinion : " I have looked into this maiter with some attention. And I conceive that anciently, upon a writ of quart clausum fregit, the plaintiff might (and may still) declare either generally, for break, ing his close at A., or might name the close in his count, as for breaking and enter- ing his close called Blackaere in A., or might otlierwise certainly describe the same. If he declared generally, and the defendant pleaded the general issue, the plaintifT might give evidence of a trespass in any part of the township of A. Heath Maxims, 12. So that for the advantage of the defendant, and to enforce the plaintiff to ascer- tain the place exactly, a method was devised of permitting the defendant to plead what is called the common bar, that is, to name any place, as Broomfield (true or false was immaterial), in A. as the place where the supposed trespass happened, and then to allege that such place so named was the defendant's own freehold. And, as the plaintiff could prove no trespass in Broomfield, this drove him to a new assignment of tlie locus in quo, by naming the place in certain, as a close called Blackaere, to which the defendant was now to plead afresh. And this came to be so much the course that (though it had been held in 9 Edw. IV. 23, 24, that if the plaintiff named the place in certain by his count, he could not afterwards vary from it), yet in 15 Edw. IV. 23, it was held by Brian and Littleton that It was merenugation and sur- plusage for the plaintiff to name the close in his declaration, and that it should not put the defendant out of his usual course of pleading the common bar and giving the close another name ; and an amendment (quite contrary to what is now wished) was directed by striking the name out of the plaintiff's declaration. And Brook, abridg- ing this case (Travers III.), draws from it this general rule, "That a thing put in declaration, which is not usual, shall not put the other party out of his common course of pleading.'' And the same is laid down as law in Hob. 16, 10 Jac. I., " That if the plaintiff in trespass assigns a place, the defendant may plead at another place, with- out traversing the place assigned by the plaintiff, and then the plaintiff may take a new assignment." Catesby, however, 21 Edw. IV. 18, held the contrary ; that if the plaintiff names the place, the defendant shall answer to the place as laid, and shall not give it another name. At length Fairfax, 22 Edw. IV. 17, lays down the rule very clearly, and reconciled the whole by taking this difference, " If the plaintiff gives a name by his writ, the defendant cannot vary from this name. But if the writ be only in general, quare clausum fregit, and the plaintiff gives a name in his count, this shall not bind the defendant, but he may give the plaintiff another name, and change the name he has given. But if the name be in the writ and also in the count, then it cannot be varied from." That is, in short, that upon a general writ the plaintiff ought not to declare specially ; and if he does, the special name is surplusage. And so it was understood, 5 Hen. VII., 28, Bro. Trespass, 277. " Hoc patet that in a general writ of trespass the defendant may give a name, but the plaintiff in his count cannot give it a name." And as it became the practice to sue out only general clausum fregits, and the law was held that upon such general writs the plaintiff either could not at all, or could not to any conclusive effect, count of any close in certain, the mode of declaring generally, pleading the common bar, and making a new assignment, seems to have been universally adopted. See Aston, 505, in 11 Eliz., and all Coke's Entries of Cases CHAP. VI.] MONPRITATT V. SMITH. 235 The court held the contrary. Wherefore it was adjudged for the plaintiff. * MONPRIVATT v. SMITH and Anothbr, Sheriff of > Middlesex. At Nisi Peius, coram Lord Ellenborough, C. J., June 7, 1809. [Reported in 2 Campbell, 175.] Trespass for breaking and entering the plaintiff's house, staying therein three weeks, and seizing and carrying away his goods. in the Common Pleas, for in the proceedings by bill in the King's Bench the declara- tions are all of a place certain. But as this practice was circuitous and full of delay, a rule was made in the Common Pleas about the time of Heath, Max. 13 (and he was Chief Justice in Charles the First's time), for the benefit of plaintiffs, to permit them to declare in certain ; which was afterwards ingrafted into the code of rules, A. D. 1664, and is clearly only permissive, and not compulsory upon the plaintiff. " The declaration upon an original or bill guare clausum fregit may mention tho place certainly, and so prevent the use and necessity of the common bar and new assignment," § 17 ; but when the plaintiff" has so declared, § 19, is peremptory on the defendant, " that the common bar and new assignment be forborne, where the declaration contains the certainty equivalent to a new assignment." And that it was so understood at the time, and immediately after, appears from the many prece- dents to be met with in the books of general declarations, with the common bar, and new assignment, subsequent to 1654. As in Lilly, 444, S3 Car. 2, Lutw. 1301, 1372, 1385, 1399, 1467, from 36 Car. II. to 9 W. III. For the practisers could not be induced all at once to depart from their ancient forms ; though as the new regulations were evidently calculated for the benefit of the plaintiff, by preventing circuity and de- lay, the old practice gradually wore out ; and the last of these general declarations which I have seen (tiU the present) is in the Common Pleas, 5 Geo. I. Still, how- ever, the law permits the plaintiff to use this circuity and to delay himself, if he be BO advised ; and therefore the reporter of Elwis and Lomb, H. 2 Ann. in the King's Bench, 6 Mod. 119, is a little mistaken, or has expressed himself ambiguously in one point, by supposing the rule to be compulsory on the plaintiff instead of optional. If we read may, instead of shall, what he represents the court to have said will be perfectly right. " Now there is a fixed course established in the Common Pleas, that in local actions the plaintiff shall ascertain the place in his declaration, to prevent such general pleas and the prolixity of a new assignment ; and the defendant is con- fined to the place ascertained in the declaration." Salkeld, in reporting the same case, 453, states the manner of declaring to be still optional in the plaintiff. " In trespass quare clausum fregit in D. (i. e. without naming the close), if the defendant plead liberum tenementum, and issue be joined thereon, it is sufficient for the defendant to show any close that is his fi-eehold. But if the plaintiff gives the close a name, he must prove a freehold in the close named. So adjudged in the Common Pleas, and the judgment aflarmed in the King's Bench on a writ of error." 1 Coke V. Evans, 2 Salk. 453 ; Cockley v. Pagrave, Freem. 238, accord. Conf. Elwis V. Lombe. 6 Mod. 117. — Ed. 236 PRATT V. GROOME. [CH VP. VI. Pleaa;, 1. Not guilty to the whole. 2. As to breaking and entering the house, and staying therein twenty-four hours, part of the said time in the said declaration mentioned, and also as to seizing and carrying away the goods, a justification under a writ of Jieri facias. "Replica- tion to last plea, admitting the writ, de injuria sua propria absque fesiduo causae. The defendants proved their justification ; but it appeared that their officers continued in the plaintiff's house beyond twenty-four hours. Garrow and Wigley, for the plaintiff, contended, that the excess beyond twenty-four hours stood merely upon the plea of not guilty ; and as the defendants had been proved to have been guilty of remain- ing in the house longer than they pretended to justify, the plain- tiff was entitled to a verdict and damages for what he had thereby suffered. LoED Elleuborotjgh. I am of opinion that the last plea, in point of law, applies to the whole declaration, and that if the plaintiff meant to rely upon the excess beyond the twenty-four hours, he ought to have said so by a new assignment. As the pleadings now stand, the residue of the cause mentioned in the plea is alone put in issue, and the length of the time during which the officers remained in the house is rendered immaterial. The plaintiff was nonsuited. Garrow and Wigley, for the plaintiff. Park, Marryat, and Lawes, for the defendants.* PRATT V. GROOME. In the King's Bench, Fbbkuaet 11, 1812. [Reported in 15 East, 235.] Trespass quare clausum fregit, parcel of Fen Mead in the parish of Totternhoe, in the county of Bedford. There were other counts laying the close in the parish of Eaton Bray, and in Totternhoe and Eaton Bray. The defendant pleaded the general issue ; and, secondly, after averring the closes in the different counts to be one and the same, that the locus in quo is parcel of a common field called Fen Mead, which is divided into allotments holden of the lord of the manor of Eaton Bray, and within the jurisdiction of the leet jury of 1 Scott V. Dixon, 2 Wils. 3; Pyewell v. Stow, 3 Taunt. 425; Diteham v. Bona, 8 Camp. 524 ; Kavanagh v. Grudge, 7 M. & G. 316 ; Aldred v. Constable, 6 Q. B. 370. accord. See also Lambert v. Hodgson, 1 Big. 317 ; Gale v. Dairy mple, 1 Camp. 381 Bowen o. Parry, 1 Camp. 394 . Conf. Barnes w. Hunt, 11 East, 451. — Eu. CHAP. VI.] PRATT V. GEOOMB. 237 the said manor. The plea then set forth a custom for the leet ju)'y to meet at certain specified times, and to set out the bounds of tlie different allotments in the common fields within the manor : that the defendant was seised in fee of a certain allotment within Fen Mead holden of the lord, and within the jurisdiction of the leet jury, and adjoining to an allotment also within Pen Mead, &c., possessed by the plaintiff; that the jury set out and determined that the locus in quo was parcel of the said allotment of the defendant, and was his close, soil and freehold, &c. The plaintiff in his replication, after setting out ihe abuttals to the closes in each of the counts of the declaration, con- cluded thus : " Which said closes above newly assigned were and are other and different closes than the said allotment, or piece, or parcel of land of the defendant in his said last plea mentioned." To this the de- fendant pleaded not guilty. At the trial before Mansfield, C. J., at the 'ast assizes for the county of Bedford, the plaintiff's counsel, in open- ng his case, did not pretend to be able to prove a trespass anywhere but on the spot allotted to the defendant by the leet jury; whereupon ihe learned judge directed the jury to find for the plaintiff on the general issue only, and for the defendant on the not guilty to the new issignment ; which they accordingly did. Sellon, Serjt., in Michaelmas term, obtained a rule nisi for a new trial, oi' to enter a verdict generally for the plaintiff, notwithstanding the verdict for the defendant on the other issue. Slosset, Serjt., now showed cause, and contended that the plaintiff under this form of pleading had no right to show a trespass in the place which the defendant by his plea claimed as his allotment; for by his new assignment the plaintiff had waived the trespass to which the defendant had before pleaded in bar. In support of this he cited Bull. N. P. 92; Freeston v. Crouch ;i Freeston «. Standford;'' 1 (Williams's) Saund. 299, n. 6, and 2 Saund. 5. LoED Ellbnbobough, C. J., said there could be no doubt that the not guilty to the new assignment put the whole of it in issue, a part of which was that the close was different from that mentioned in the plea. The court therefore thought the direction of the learned Chief Justice at the trial right, but they gave the plaintiff leave to amend on payment of costs. Geose, J., had left ths court, and Lb Blanc, J., was absent at Horsemonger-lane.' 1 Cro. Eliz. 492. ^ Cro. EUz. 355. 3 Freeston v. Crouch, Cro. El. 492 ; Freeston v. Standford, Cro. El. 355 ; Oakeley «. Davis, 16 East, 82 ; Darby v. Smith, 2 M. & Rob. 184 ; Boynton v. Willard, 10 Pick. 166, accord. See Atkinson v. Matteson, 2 T. E. 176-7 ; Hall o. Middleton, 4 A. & E. 107. Conf. Bolton o. Sherman, 2 M. & W. 395; East. Co.'s R. R. u. Dorling, 5 C. B N. S. 821 — Ed. 238 TAYLOR V. SMITH. [CHAP. VI. TAYLOR V. SMITH. Ik the Commoit Pleas, Notembee 9, 1816. [Reported in 7 Taunton, 166.] Tbespass for that the defendant, on 17th October, 1815, stoppea the plaintiff's cattle and cart. Plea, not guilty; and justification that the plaintiff was loading his cart with turf, which he had wrong- fully cut from the waste of the manor of Glapham, and the_ defend- ant, as bailiff of the lord, took it from him. The plaintiff replied to the justification, de injuria sua, and newly assigned, that the defendant on other days and times did the trespasses complained of; and upon the trial, before Lord EUenborough, C. J., at the Guilford Sum- Tner Assizes, 1816, he proved a license from the lord to cut the turf Verdict for the defendant, which Onslow, Serjt., now moved to set aside, on the ground that, upon the evidence of the license, the verdict ought to have been for the plaintiff. The court held clearly, 1. That a single act only of trespass being laid, and not diversis vicibus et diebus, and that act being covered by the defendant's plea of justification, there could be no new assignment. 2. That the license, not being replied, could not be given in evidence to rebut the justification, and therefore the verdict was right, and they He/used the rule} i " The court were clearly of opinion against the plaintiff on both grounds. They held that the replication was double. It was an attempt by a new assignment to amplify the cause of action stated in the first count. The plaintifi declared in that count for one breaking and entering; this was justified, and after issue taken on that justification, he attempted to make a new assignment of other matter; which was irregular. They said It was the same as if, to an action of trespass for breaking and entering the plaintifi's close, generally, in such a parish, the defendants were to plead that the trespass complained of was in a close there called Whiteacre, which was his own soil and freehold ; and then the plaintiff were to reply, admitting that it was in Whiteacre, and taking issue upon the defendant's soil and freehold ; and after that, should go on to state that he meant also to go for a trespass in Blackacre ; which was not allowable. So with respect to the single act of trespass complained of in the third count; that also was justified; and after taking issue on the matter of that justification, the plaintifl', without alleging any difEerent fact, made a new assignment of the same matter ; so that there would be two issues to be taken on the same fact. They observed that the object of a new assignment was to give the go- by to all that the defendant had pleaded, by saying that the trespass stated and justi- fied by the defendant was not that which the plaintiff had complained of in hia declaration, but some other which is stated." Cheasley v. Barnes, 10 East, 79. Lucaj \>. Nockells, 10 Bing. 169, per Parke, B. ; Thomas v. Marsh, 5 C. & P. 696 ; Polkin- horn V. "Wright, 8 Q. B. 197 ; Gisborne v. Wyatt, 3 Dowl. P. C. 505 ; Meriton v. Coombes. 9 C. B. 787, accord. See Smith v. Powers. 13 N. H. 216. — Ed. CHAP. VI.] COCKER V. CROMPTON. 239 COCKER V. CROMPTOIsr and Othbes. In the King's Bench, Apeil 22, 1823. [Reported in 1 Barnewall 4 Mats. R. 498. 1 6 Mass. R. 182. SECT. I.] SLACK V. LYON. 273 Southern/ Badcock v. Atkins,' Pelton v. Ward,' Bonham's Case,* Elwis V. Lombe,^ Rigeway's Case, Butt's Case." Meicalf, for the complainant, admitted that the defect in the com- plaint was not cured by the verdict, but insisted that it was cured by the plea in bar. The old rule in Co. Lit. 303 b, that when a count is defective " by omission of some circumstance, as time, place, &c., there it may be made good by the plea of the adverse party, but if it be in- sufficient in matter, it cannot be salved," meant only that matters of form, but not of substance, are waived by mere pleading over. Anon., 2 Salk. 519; Dunning v. Owen.' But, however this may be, the weight of authority, as well as the better reason, is, that an express admission in a plea, of a material fact omitted in the count, supplies the defect. The cases of Drake v. Corderoy,' and Osborne v. Brooke,' have over- ruled Badcock v. Atkins, cited on the other side. The approbation by Spencer, J. (in 3 Caines), of the latter case, was retracted in Vaughan V. Havens," and the authority of Drake v. Corderoy recognized. Met- calf also cited Brooke v. Brooke, Zerger v. Sailer,^^ Gelston v. Hoyt.'^ Paekee, C. J., delivered the opinion of the court. No doubt the complaint is insufficient, as it does not bring the case within the stat- ute ; but the defect is cured by the plea. The plea sets forth the pur- poses for which the water was raised, bringing the case within the statute. The merits of the question have been tried, and the respond- ent ought not to be allowed to go back to a fault which he ought to have discovered at the beginning, unless the law clearly requires it. The authorities are contradictory; some maintaining that a count defective in substance cannot be cured by pleading over ; others the contrary. We are at liberty to follow those which seem to be founded on the better reason. Two of the old cases very decidedly maintain the affirmative; that in Cro. Car. 288, where a count for slander, defective in substance, was cured by the defendant's plea, and the case in Siderfin. In this last case the plaintiff counted against the defend- ant in trespass, alleging that he had taken his hook. The defendant pleaded, that the plaintiff being about to strike him with the hook, he took it out of his hands in order to deliver it to a constable. It was moved in arrest, for that the plaintiff had not averred that the hook was in his possession. The court said, had the defendant pleaded the general issue, the plaintiff could not have had judgment; but having shown that he took the hook out of the possession of the plaintiff, he had thereby cured the defect in the count. These two cases do not 1 1 Saund. 116. « Oro. Eliz. 41tf. ' 8 Caines, R. i3. 4 8 Co. 120. » 6 Mod. 119. » 7 Co. 26. T 14 Mass. R. 162. 8 Cro. Car. 228. ' Aleyn, 7. M 8 Johns. R. 109. " 6 Bin. 24. " 18 Johns. R. 141, 18 274 SLACK V. LTON. [CHAP. Til. appear to have been overruled in England ; on the contrary, they aro cited in the digests and text-books without disapprobation, down to the recent work on pleading by Stephen. In New York, however, a contrary doctrine was held, it being laid down in the case in 3 Caines, that a count defective in substance can in no case be cured by the defendant's plea; and the case of Drake v. Corderoy passed in review before the court. But in a later case, in 8 Johns. Rep., the case of Drake v. Corderoy is distinctly put to the court, and Spencer, J., who delivered the opinion, expressly admitted its authority. The way then is open to us to adopt the more reasonable doctnne, which we think is, that when the defendant chooses to understand the plaintiff's count to contain all the facts essential to his liability, and in his plea sets out and answers those which have been omitted in the count, so that the parties go to trial upon a full knowledge of the charge, and the record contains enough to show the court that aU the material facts were in issue, the defendant shall not tread back and trip up the heels of the plaintiff on a defect which he would seem thus pui-posely to have omitted to notice in the outset of the controversy. One of the counsel for the defendant has attempted to show that the defects in the two cases above cited, which were allowed to be cured by the plea, were in form only ; but in the case of the hook, the court go upon the ground that it was substance ; and the case shows that it was. And so was the other case, of Drake v. Corderoy. The counsel have ingeniously attempted to escape from those cases, by showing that the defects were only in particularity of the averment ; but the particu- lars left out were essential to the averment, so that it was substantially defective. Motion in arrest overruled.^ 1 See Wilkinson v. Sbarland, 10 Ex. 721 ; £Vance v. White. 1 M. & G. 731. — Eo. SECT. II.J CBATEN V. HaNLET. 275 SECTION 11. Nbn- Obstante Veredicto. LACY V. REYNOLDS. Ik the Queen's Bench, Hilaet Teem, 1591. [Reported in Crake's Elizabeth, 214.] Action for words, which were, " He is as very a thief as any is lu Warwick goal ; " and avers that J. S. was then a prisoner in Warwick jail, condemned for horse stealing ; and it was clearly held that for these words action did lie, with this averment, but not otherwise. After verdict, this matter was alleged in arrest of jndgmeA^ffiat the defendant did plead the bar, quod quidam ignotus came. to War- wick, and there cut the purse of J. N, and the plaintiff sciews this, him did receive and comfort, and by reason of it spoke the words. The plaintiff replied de injuria sua propria; and upon this, issue was joined, and found for the plaintiff. It was alleged that the issue is ill joined, for this matter doth not prove the plaintiff a thief, although it doth prove him a felon. The court held that the issue was not well joined; but they conceived that, inasmuch as -be had by this confessed A.^t the words, although the issue is misjoined, and a mis-trial, yet this is ^ as void, and the court shall give judgment upon his confession ; and the plaintiff shall not have his damages taxed by the court, but shall have a new writ to inquire of damages. And it wag so adjudged. Vide 22 Edw. IV. pL 46.i CRAVEN w. HANLEY. In the Common Pleas, Michaelmas Term, 1738. [Heported in Barnes's Notes, 255.] This was an action of trespass, whereto defendant pleaded a bad justification. Plaintiff took issue, and defendant obtained a verdict. 1 Cook V. Pearce, 8 Q. B. 1044, accord. — Ed. 276 LAMBERT V. TAYLOR. [OHAP. TH. Plaintiff moved au i "iw i Mii>Hlj » of j udgment, and the court heard counsel on both sides several times, and took time to consider ; and in Easter term last made a rule to stay the entry of judgment on defendant's verdict, and that plaintiff should have leave to sign judgment, the trespass be- ing confessed by the plea,^ LAMBERT v. TAYLOR aito Anothee, Exbctjtoes ob Gboegk Rbnton, deceased. In the King's Bench, Eastee Teem, 1325. \Reported in 4 BamewaU ^ Cresswell, 138.] Dbclaeation '^ stated George Renton, on the 12th day of May, 1813, ftt, &c., made his promissory note in writing for £200, and delivered the same to J. Y., whereby, &c. It then averred the death of G. R. without payment of the note; that on the 11th of November, 1818, it was found that J. Y. was a,felo de se, whereby the said note was forfeit- ed to the late king; that on the 23d day of November, 1821, his present Majesty gave by his warrant the said note to J. Lambert, the plaintiff, &c. Breach, non-payment by Renton in his lifetime, or by the defend- ants, his executors. Plea, first, non-assumpsit by G. Renton, and issue thereon. Secondly, that the supposed promissory note in the declara^ tion mentioned became due and payable to J. Younghusband in his lifetime, and that the supposed causes of action in the declaration men- tioned did not accrue to the said J. Younghusband at any time within six years next before the exhibiting of the plaintiff's bill; upon which plea issue was taken in the replication. Thirdly, that there was not any such record of the said supposed inquisition before the aforesaid coroner as the said plaintiff had in his declaration alleged. To which plea the plaintiff replied, that there was such a record ; and issue was joined upon the record, which record was produced to the court, and 1 Bias V. Stockton, 2 Roll. Abr. 98, pi. 2 ; Broadbent v. Wilks, Willes, 860 ; s. c. 1 Wils. 65 ; Kirk v. NowUl, 1 T. E. 266 ; Drayton «. Dale, 2 B. & C. 298 ; Earl of Lonsdale v. Nelson, 2 B. & C. 302 ; Lewis v. Clement, 3 B. & Al. 702 ; Down v. Hatcher, 10 A. & B. 121, accord. See Reg. v. DarUngton School, 6 Q. B. 708-706, 719, as to the propriety of a motion for judgment non obstante veredicto \>j a defend- ant. — Ed. 2 The statement of the declaration has been abbreviated, and only so much of the case is given as relates to the propriety of the motion for judgment non obstante vere dido. — Ed. SECT. II.] LiMBERT V. TAYLOR. 277 that issue found for the plaintiff. Lastly, the defendants pleaded that bis Majesty did not make any such gift or grant unto the plaintiff as the plaintiff had in his declaration alleged ; and upon that plea issue was joined. At the trial, before Bayley, J., at the Northumberland Summer Assizes, 1823, the jury found a verdict for the plaintiff on the first and last issues, with £250 damages. Upon the second issue, namely, the Statute of Limitations, the jury found a verdict for the de- fendants. A motion was made in this court on the part of the plaintiff to enter up judgment for him non obstante veredicto on the second issue. Tindal, for the plaintiff. Cross, Seijt., contra. Tindal, in reply. Abbott, C. J., now delivered the judgment of the court, and alter stating the facts of the case, proceeded as follows: In the present case the plea does not show that Younghusband was barred by the statute at the time of his death ; and if he was not so barred, then a right vested in the crown, and the rights of the crown are not barred or affected by the statute. The crown is not within the operation of the statute. The plea then being bad, the defendant certainly cannot have judg- ment, although the issue is found for him, the issue being taken on an immaterial matter. And the question whether the plaintiff can have judgment, or whether there ought to be a repleader, depends upon the question whether the plea does or does not contain a confession of a cause of action ; if a cause of action be confessed by the plea, and the matter pleaded in avoidance be insufficient, the plaintiff is entitled to judgment, notwithstanding the verdict. If the plea does not con- fess a cause of action, there must be a repleader ; Pitts v. Polehampton. Now, admitting that a plea of actio non accrevit infra sex annos as generally pleaded does not admit that any cause of action did at any time accrue, yet this plea does not contain that matter alone, but it contains an assertion that the note became due and payable to Young- husband in his lifetime. This is an acknowledgment that Younghus- band had at one time a good cause of action ; and if he had a cause of action, the right to sue would upon the facts alleged in this declaration pass to the crown, and from the crown to the plaintiff, unless the de- fendant has alleged some matter of fact sufficient in law to show that such right did not so pass, or, in other words, unless the matter of fact pleaded in bar be a good bar in law to the action. I have already said that we think it is not a good bar ; and then a cause of action being confessed and not well avoided, the plaintiff is entitled to judgment. 278 GOODBURNE V. BOWMAN. [CHAP. VII. The rule, therefore, will be that judgment be entered for the plain- hiS, non obstante veredicto. Judgment for plairMff} GOODBURNE v. BOWMAN and Othbes. In the Common Pleas, Januaey 17, 1833. [Reported in 9 Bingham, 532.] Case for a libel. The declaration contained three counts. The de- fendant pleaded the general issue, and six special pleas of justification 1 Filliene v. Armstrong, 7 A. & E. 657, accord. " The principle upon which such a judgment proceeds as against. a defendant is, that he has confessed the plaintiff's action, and avoided it by matter which is in substance no answer to the plaintiif 's action ; and, in such a case, although the issue raised upon that matter has been found for the defendant, yet the court gives judgment for the plaintiff as upon a confession. There are four descriptions of judgments for a plaintiff — on verdict, demurrer, nil dicit, and confession ; Rex v. Philips, Str. 395 ; and this belongs to the last, and is classed under that head ; and all the cases in the books which I have been able to find are founded on that principle. Thus, in the form referred to by my brother Coltman [14 Viner's Abridgment, Judgment (D.), pi. 1], the judgment proceeds upon the confession in the plea of the matters in the declaration, and want of suflicient matter in bar. The same in Carthew, 372, 2 EoUe's Abridgment, 99 Willes, 365, 366. The cases of Lacy v. Reynolds, Cro. EUz. 214 ; Rex v. Philips, Str. 394 ; Drayton v. Dale, 2 B. & C. 293, 3 D. & R. 534 ; Earl of Lonsdale v. Nelson, 2 B. & C. 312, 3 D. & E. 556 ; Lambert v. Taylor, 4 B. & C. 138, 6 D. & E. 188 ; Clears v. Stevens, 8 Taunt. 413 ; Lewis v. Clement, 3 B. & A. 704; and Eickards v. Bennet, 1 B. & C. 223, 2 D. & R. 389, are all cases of judg- ments on pleas in confession and avoidance bad in substance (for, if bad in form merely, such a judgment will not be given). Staples v. Heydon, 2 Lord Raym. 924, 6 Mod. 10, 2 Salk. 579, 3 Salk. 121. And, after a very diligent search, I have not been able to discover a single case of this species of judgment on any other pleas than those which are technically in confession and avoidance. " It is said that, if a plea traverses one out of several matters alleged in the declara- tion, it confesses the remainder to be true ; and in hke manner the rejoinder con- fesses such part of the replication as it does not deny. But I do not think it con- fesses the remainder in the sense which is required to found such a judgment, non obstante veredicto; Hudson v. Jones, 1 Salk. 91. That which is traversable, and not traversed, may be said no doubt to be admitted for some purpose, that is, it cannot be made a matter in dispute on the trial ; and if it were taken by protestation under the form of pleading before the new rules, the matter would have been equally put out of the issue ; but there would have been great diflSculty in maintaining that this was a confession for the purpose of giving the plaintiff judgment. The effect of a traverse of one fact out of many is merely this, that the party pleading rests his de- fence on a denial of that fact only ; but, if the decision of it in favor of the defend- ant turns out to be immaterial, I conceive the court cannot give judgment as on a confession of the other facts." Per Parke, B., in Gwynne v. Burnell, 6 B. N. C. 527 ■ Pine V. Grazebrook, 2 C. B. 429 ; Darlington v. Pritchard, 4 M. & G. 783 ; Atkin-_ son V. Davies, 11 M. & W. 242 {sembte), accord. — Ed. SECT. II.J GOOUBURNE V. BOWMAN. 279 Betting up the truth of the alleged publication.* To the special pleas the plaintiff replied de injuria, &o. ; and at the trial before James Parke, J., last summer assizes for the county of York, the jury found for the plaintiff on the general issue, and also upon the issue raised on the fifth plea of justification, with one farthing damages; and for the defendants on the other issues. In Michaelmas term last, the plaintiff moved for leave to enter up judgment non obstante veredicto, on the several issues found for the defendants, on the ground that the pleas on which those issues were raised were bad in law. JBompas, Serjt., showed cause. If the pleas are bad, neither party can have judgment; the plaintiff himself having tendered immaterial issues instead of demurring. And there must be a repleader, for none of the pleas, taken singly, confess the cause of action, and each must stand or fall on its own merits. In Lambert v. Taylor, Lord Tenter- den says, " The plea being bad, the defendant certainly cannot have judgment, although the issue is found for him, the issue being taken on an immaterial matter. And the question whether the plaintiff can have judgment, or whether there ought to be a repleader, depends upon the question whether the plea does or does not contain a confes- sion of a cause of action ; if a cause of action be confessed by the plea, and the matter pleaded in avoidance be insufficient, the plaintiff is en- titled to judgment, notwithstanding the verdict. If the plea does not confess a cause of action, there must be a repleader." Pitts v. Pole- hampton. Staples v. Heydon. The circumstance of the plaintiff's having a verdict upon the general issue, will not dispense with the necessity of a repleader; for, in Rex v.. Roger Philips, Lord Mansfield says, " The rule of law as to such an immaterial issue joined, and verdict upon it, is, ' that when the finding upon it does not determine the right, the court ought to award a repleader, unless it appears from the whole record that no manner of pleading the matter could have availed. ' " Cur. adv. vult. Jones and Stephen, Serjts., in support of the rule. TrnDAL, C. J. The declaration in this action, which contained three counts, set forth a libel, imputing to the plaintiff, who had been twice mayor of the borough of Richmond, that he had been guilty of pecula- tion during his mayoralty, by pocketing 2c?. per bushel for coals, which had been provided by him as mayor to be distributed amongst the poor at redut,ed prices. To this declaration the defendants pleaded the gen- eral issue, and six special pleas of justification, on the ground that the I The statement of the pleadings has been abbreviated, and only so much of the case is given as relates to the propriety of the motion for judgment non obstante vere- dicto. — Ed. 280 GOODBURNE V. BOWMAN. [CHAP. VII. charges imputed by the libels were true. To the special pleas the plaintiff replied de injuria, &o., and at the trial, at the last assizes for the county of York, before Mr. Justice James Parke, the jury found for the plaintiff on the general issue, and also upon the issue raised on the fifth plea of justification, with one farthing damages ; and for the defendants on the other issues. A motion was made in last Michaelmas term, that the plaintiff might be at liberty to enter up judgment non obstante veredicto, on the sev- eral issues found for the defendants, on the ground that the pleas on which those issues were raised were bad in law, inasmuch as they did not state that the coals which had been provided by the plaintiff had been, in fact, purchased for less than the plaintiff charged for them, but merely that they might have been purchased for less by the plaintiff. On showing cause against the rule nisi, which was granted by the court, it was insisted on the part of the defendants, first, that admitting the pleas to be bad, the plaintiff having taken issue upon them, instead of demurring, had himself tendered immaterial issues; and besides, it was contended that, as the pleas did not contain any confession of the matters charged in the declaration, there could not be any judgment entered for the plaintiff, but that a repleader must be awarded. We are of opinion, in the first place, that, taking together the whole of the allegations in the respective pleas, they fully amount to a con- fession of the cause of action. But if this point were doubtful, it may not be improper to observe, that most of the cases in which the ques- tion respecting a repleader has been considered, were before the statute of Anne, when only one plea could be put upon the record. If, there- fore, such plea did not contain a confession, there was no part of the record by which the deficiency could be supplied. In the present case there is a verdict upon the general issue, which finds that the defend- ant did publish the libels. And, although in considering the merit or demerit of any individual plea, recourse cannot be had to another un- less expressly referred to by such plea, yet as the application to enter the verdict is founded upon the whole record upon which it appears that the defendant has committed the grievance complained of, and has not shown any suflScient justification, it may be considered that in that point of view there is enough to warrant the application. But no rule is better established than this, that the court will not grant a repleader except where complete justice cannot be answered without it. So the law is laid down by Ashurst, J., in Symmers v. The King.* In the present case, why should a repleader be granted in order to enable the defendant to confess the ground of action more formally, when the court see already upon the face of the record that the jury have found him guilty of publishing the libels complained of, and at- 1 Cowp. 510. SECT. II.] PLUMMER V. LEE. 281 tempted to be justified by the pleas? If it be said that the defendant, ir a new plea, might state new matter in avoidance of the action, what tvou'ld that be in effect but to allow him to take advantage of his own error in pleading ? Upon the whole, we think the special pleas do suf- ficiently confess the action, but do not sufficiently avoid it ; and, con- sequently, that the rule for entering the judgment for the plaintiff, non obstante veredicto, must be made absolute. Bute absolute. * — ~~ /^ J ' PLUMMER, Administeateix of M. THOMPSON, deceased, i). LEE. In the Exchequer, Eastbb Teem, 1837. [Reported in 2 Meeson Sf Welsby, 495.] Debt on an award. The declaration stated, that before the makmg of the submission to arbitration thereinafter next mentioned, certain differences had arisen and were depending between the plaintiff, aa administratrix as aforesaid, and the defendant, concerning divers sums of money due from the defendant to the plaintiff, as administratrix as aforesaid, and of and concerning part of which sums of money there had been a settlement on a certain day in the lifetime of the said M. Thompson, to wit, on the 12th day of July, 1833, which settlement was the last settlement next before the making of the award thereinafter mentioned ; and thereupon, for putting an end to the said differences, the plaintiff, as executrix as aforesaid, and the defendant, theretofore, to wit, on the 11th June, 1835, respectively submitted themselves to the award of one J. P., to be made between them of and concerning the said differences. And the plaintiff in fact saith, that the said J. P. having notice thereof, and having taken upon himself the burden of the said arbitrament, afterwards, to wit, on the 13th May, 1836, made his certain award between the plaintiff, as administratrix as aforesaid, and the defendant, and thereby awarded that there was then due from the defendant to the plaintiff, as administratrix as aforesaid, the sum of jE150, together with interest on the same from the period of the said last-mentioned settlement, on payment of which a receipt m full should be given ; of which said award the defendant afterwards, to wit, on, jfcc, had notice. The declaration then averred that, although the plain- tifi^ as administratrix as aforesaid, had always been willing to receive the moneys so fiwarded, and on payment thereof to give a receipt in full, the defendant had not paid the same, or any part thet sof, &c. ; and concluded with profert of the letters o'' administration. Pleas, first, that the arbitrator did not make any award of and upon 282 PLUMMER V. LEE. [CHAP. VII til e premises in the declaration mentioned, in manner and form, &c. ; Reoondly, that the day in the declaration in that behalf mentioned was not the day of the last settlement next before the making of the said award, in manner and form, &o. ; thirdly, that no such settlement as in the declaration mentioned was at any time made. On which issues were joined. At the trial before Alderson, B., at the Middlesex sittings in Hilary term, the plaintiff had a verdict on the first and third issues, and the defendant on the second. On a subsequent day, W. H. Watson ob- tained a rule to show cause why judgment should not be entered for the plaintiff non obstante veredicto on the second issue, on the ground that it was an immaterial one.' Richards, for the defendant. Watson, contra. The court intimated that it was matter for consideration whether it would not be necessary to award a repleader, instead of entering up judgment non obstante veredicto, as prayed; and accordingly, Cur. adv. vult. The judgment of the court was delivered on a subsequent day in the term, by — Paekb, B. The next question is, whether the second issue be im- material, and what is the consequence if it be not? We are clearly of opinion that it was immaterial. The precise day of the last settlement was of no consequence, if a last settlement had been made in the lifetime of the intestate, and before the reference. If there had been no other plea on the record, the proper course would have been to award a repleader, and not to have given judgment non obstante veredicto. That form of judgment proceeds on the confession in the plea, and the insufliciency of the avoidance ; but in this plea there is no confession on which judgment can be given; it raises an immaterial issue, without any confession. The next question to be considered is, whether a repleader ought to be awarded, as there is another proper issue raised, and decided for the plaintiff, on this record, on which, if it stood alone, the plaintiff would clearly be entitled to judgment. In the case of Goodburne v. Bowman, it is for the first time suggested, that if an immaterial issue be raised by one plea, and the cause of action is fully confessed, or proved, on another, on the same record, the plaintiff is entitled to judgment on that confession, or proof, and a repleader would not be awarded. But the present case is distinguishable from that, for here no plea contains a confession of any part of the cause of action ; and there is no issue upon any plea, es- l Only so much of the case is given as relates to the propriety of the motion for iudgment non obstante veredicto. — Ed. SECT. II.J COULING V. COXE. 283 tablishing the truth of the whole of it ; and we are not aware of any precedent that a repleader can be granted as to part ; consequently, as there can be no judgment on a confession, there must be a repleader. To save the expense of a formal judgment, the parties should amend without costs on either side.' COULING V. COXE. In the Common Pleas, Deoembeb 7, 1848. [Reported in 6 Dowling Sf Lowndes, 899.] Case against a witness for disobedience to a subpoena. The declara- tion, after alleging that the plaintiff had sued one Thomas Foulkes in an action of trespass, and that certain issues, before then joined in that suit, came on to be tried at Kingston, stated the issuing and service on the defendant of a writ of subpoena on behalf of the plaintiff. The declaration then averred that the plaintiff had a good cause of action in the said suit, and that the appearance and testimony of the now de- fendant, in obedience to the writ of subpoena, were necessary and material to the trial of the said issues. Breach, that the now defendant, without lawful excuse, neglected to appear and give evidence, by reason whereof the plaintiff was obliged to withdraw the record, and was compelled to pay certain costs to the said Foulkes, and lost the benefit of certain costs which he, the plaintiffj had incurred in proceeding to the trial of the said issues. Fleas : first, not guilty ; secondly, thirdly, fourthly, fifthly, sixthly, and seventhly, traverses of material allegations in the declaration ; eighthly, that the plaintiff had not a good cause of action, modo et 1 " That being bo, the next question is, whether the plaintiff is not entitled to judg- ment ncn obstante veredicto. We think he is, and that it is not a case for a repleader. If this hid been the sole plea, it would have been a ease for a repleader; but there are several other pleas on the record ; and if one out of several pleas traverses im- material matter in the declaration, and the defendant pleads other material matters, which are disposed of on proper issues raised upon them, the reasons for a repleader cease. For this the case of Goodbume v. Bowman, which was recognized, with some qualifications, by some of the judges, in the case of Colhns v. Gwynne, in Dom. Proc, is an authority, and the case of Plummer v. Lee in this court, in which, under similar circumstances, a repleader was awarded, must be considered as overruled. Indeed, it was not disputed in the present case, that if the issue was immaterial, the plaintiff was entitled to judgment non obstante veredicto." Per Parke, B., delivering the opinion of the court in Negelen v. Mitchell, 7 M. & W. 622. Gregory v. Brunswick, 3 C B 481 ; Crossfleld v. Morison, 7 C. B. 286 ; Cook v Fearce, 8 Q. B. 1044, accord. See Havens v. Bush, 2 Johns. 387. — Ed 284 COULING V. COXE. [chap. VII. forma ; ninthly, that tlie testimony of the defendant was not material to the trial of the issues; and tenthly, leave and license. Issues thereon. Upon the trial before Parke, B., at the Guildford Summer Assizes, 1846, the jury found for the plaintiff upon all the issues except the eighth ; and upon that issue they found for the defendant. Z,ush having, in the following term, obtained a rule nisi on the part of the plaintiff to set aside the verdict upon the eighth plea, and for a repleader, or to enter up judgment for the plaintiff non obstante vere- dicto^ Pearson showed cause. The plaintiff is not entitled to judgment non obstante veredicto, for the eighth plea is not in confession and avoidance ; Atkinson v. Davies ; ' Gwynne v. Burnell.' The court will only grant a repleader. [He re- ferred to Gordon v. Ellis.] Xiush, contra. If the rule laid down in Gwynne v. Burnell be of universal applica- tion, it is admitted that the plaintiff is not entitled to judgment non obstante veredicto, but that a repleader will be awarded ; because the plea upon which the issue has been found against the plaintiff, is a trav- erse, and not in confession and avoidance. The allegation, however, which that plea traversed, was, it is submitted, immaterial, and its omission would not only not have made the declaration bad, but it would not even have effected the amount of damages to be recovered ; for it was immaterial, as regards the question of damages, whether the defendant's evidence was necessary upon one, or upon all, the issues, his absence being the cause why all of them remained untried. If the ninth plea had traversed that the defendant's evidence was material upon all the issues, it would have been bad. If, therefore, the allega- tion traversed by the eighth plea was immaterial, and might have been struck out altogether, it is submitted that a repleader would be useless, and that the court will give judgment for the plaintiff non obstante veredicto ; because, besides this immaterial issue, which was found for the defendant, there are others which are material and decisive of the whole cause of action which have been found for the plaintiff; Negelen V. Mitchell.* [Ceesswbll, J., referred to 2 Wms. Saund. 319 e, n. (A), 6th edit.] Wilde, C. J., now delivered the judgment of the court. 1 Only so much of the case is given as relates to the propriety of the motion fol judgment non obstante veredicto. — Ed. 2 11 M. & W. 236 ; s. 0. 2 Dowl. 778, N. S. 3 6 Bing. N. C. 453 ; 1 Scott, N. E. 711 ; 8.0.7 CI. & F. 572. 4 7 M. & W. 612 ; s. c. 1 Dowl. 110, N. S. SECT. II.] COULING V. COXE. 285 The second :iuestion is, what judgment should be given on this record, taking the eighth plea to be bad ? Before the statute of Anne, the question whether there should be a repleader or judgment non ob- stante veredicto, depended on whether the plea, on which the immate- rial issue arises, admits a cause of action by way of confession and avoidance. But since that statute, it has been held that, although the plea, on which the immaterial issue was found for the defendant, did not confess the cause of action, if it was confessed or proved on the other pleas which were found for the defendant, there should be no re- pleader, but judgment for the plaintiff. And even although the pleas on which the good issues have been taken and found for the plaintiff, were not pleas in confession and avoidance, but traverses of material allegations in the declaration, and although some of the material alle- gations were neither traversed nor proved, nor admitted by way of confession and avoidance, it has been held that where the other mate- rial pleas enabled the court to give judgment, without requiring the parties to replead, in order to show on which side the right was, there should be no repleader, but judgment non obstante veredicto.^ In- deed, a plea traversing an allegation in a declaration, although not for all purposes, nor in all events, an admission of the material allega- tions in the declaration which it does not traverse, yet may be considered as a conditional admission, that is, as admitting the allega- tion not traversed, in case the plaintiff can prove the allegation trav- ersed ; and it is certainly so treated in the case in which, on a single plea traversing a part of the declaration, where an issue is found for the plaintiff, the plaintiff has judgment ; which he could not be entitled to, unless the court considered the material allegations which were not traversed, as being admitted ; and the same consequence follows if several material traverses are all found for the plaintiff. In the present case, several traverses on material allegations of the declaration are found for the plaintiff, who has also obtained a verdict on the plea of leave and license, which is a plea in confession and avoidance ; and the only issue found for the defendant does not show that the plaintiff has no cause of action. So that the court, therefore, have no difficulty in saying that the plaintiff, and not the defendant, is entitled to judgment, and have no reason to award a repleader to discover which is right. The rule, therefore, to enter judgment for the plaintiff on the eighth plea, non obstante veredicto, must be made absolute. Hule absolute. 1 See Goodbume v. Bowman ; Negelen v. Mitchell, 7 M. & W. 612. 286 DUKE OP RUTLAND V. BAGSHAWE. [CHAP. VII THE DUKE OF RUTLAND v. BAGSHAWE and Anothbe. In the Queen's Bench, Febeuaet 26, 1850. [Reported in 19 Law Journal Reports, Queen's Bench, 234.] Prohibition. The declaration stated that before and at the time ol the exhibiting the libel on articles hereinafter mentioned, the plaintiff had not been nor was impropriator or proprietor of the tithes annually arising or renewing in the parish of Taddington and the tithable places within the same, and the said Taddington had not been nor was a parish, and the chancel in the said articles mentioned had not nor did belong or appertain to the said impropriate rectory^ in the said articles mentioned, nor had been nor was part or parcel of the said impropriate rectory, and the plaintiff had not been nor was in posses- sion of the said chancel, nor was the same held, occupied, or enjoyed by him. That from time whereof, &c., there had been and still is a certain ancient and laudable custom, used and approved of within the said Taddington, that the inhabitants of Taddington from time to time, whenever the same should be requisite, should repair, at their own costs and charges, the said chancel, and have at all times, in fact, so repaired, and still of right ought to repair the chancel; and that also, from time whereof, &c., there had been and still is a certain other custom, &c., within the said Taddington, that when and as any repairs in and to the said chancel have been necessary, the chapel-wardens of the said chapelry have given oi'ders and directions for the doing of such repairs, and employed workmen and laborers in and about the doing of such repairs, and have paid for the same, &c. ; and that neither the plain- tiff nor any of his ancestors or pi'edecessors, lessees or grantees of any tithes arising within Taddington, had, nor had any of them, at any time before the exhibiting the said libel on articles, repaired the said chan- cel or defrayed the cost of any of the reparations made or done in or to the said chancel. That from time whereof, &c., there had been and still is a certain other custom, &c., within the said Taddington, that church or chapel rates for the repairs of the church or chapel of Tad- dington had been from time to time duly made, and had been collected and expended within Taddington by the chapel-wardens thereof, for the time being, and all ihe costs and expenses of the repairs of the said chancel had been at all times provided for and paid out of such rates by the said chapel-wardens of the said chapelry, for the time being. That from time whereof, lgment non obstante veredicto can be awarded on a pleading in confession and avoidance only, and not on the implied confession by not answering. The principle is, that, taking the whole record together, the court can see that the plaintiff is entitled to judgment.] There is no rule prohibiting judgment non obstante veredicto, where a plea, whether it be in denial or in confession and avoidance, affords no answer to the action. The note (A) in 2 Wms. Saund. 319 d, obsrerves on the doctrine of confession by not traversing, and collects all the cases on that subject. All the observations there made as to repleader are founded on Staple v. Hayden. It could make no differ- ence that there were other negative issues found for the plaintiff. [WiGHTMAsr, J. The court must be able to see either by express confession or finding that all the material allegations are in the plain- tiff's favor. Here there is neither confession nor finding to that effeet.J At all events, the plaintiff is entitled to have a repleader awarded. Filleul V. Armstrong.^ Willes, contra. There cannot be judgment non obstante veredicto, as there is no confession of any matter which would entitle the plaintiff to judgment. The utmost to which the plaintiff is entitled is a repleader. Cowling, in reply. Cur. adv. vult. The judgment of the court was now delivered by — Patteson, J. The defendants by their plea have only traversed two of the allegations in the declaration, leaving wholly unanswered an allegation which, we think, would entitle the plaintiff to a prohibi- tion. The issues found for the defendants therefore constitute no sufficient answer to the declaration, and are in that respect immaterial, and being traverses merely, contain no admission of the allegations not traversed, except as is expressed in the judgment of the Court of Com- mon Pleas in Cowling v. Coxe, a conditional admission, that is, admit- ting the allegations not traversed, in case the plaintiff can prove the allegation traversed. In the present case the plaintiff did not prove the allegations ti-aversed, and we therefore think that there is no such admission by the defendants of the matters alleged in the declaration as will entitle the plaintiff to judgment non obstante veredicto, and therefore there must be a repleader. Repleader awarded. » 11 Mee. & "W. 236; s. c. 12 Law J. Rep. (n. s.) Exoh. 169. « 7 Ad. & E. 557 ; s. o. 7 Law J. Eep. (n. 8.) Q. B. 7. 19 290 BEBJEANT V. FAIRFAX. [CHAP. VII, SECTION III. Mepleader. SERJEAISTT v. FAIRFAX. In the King's Bench, Faster Teem, 1661. [Reported in 1 Levinz, 82.] Debt against lessee for years for the rent. The defendant pleads, thai he, before the rent was due for which the action is brought, had assigned the term to another, of which the plaintiff had notice. The plaintiff took issue on the notice, and a verdict being for the defendant, it was moved by Allen, for the plaintiff, that no judgment ought to be given, but a repleader (awarded) because the issue was taken of a thing im- material ; for it is not the notice of the assignment of the term, with- out agreement of the lessor, or acceptance of the rent by him from the assignee, that discharges the lessor, but his agreement thereto, or ac- ceptance of the rent from the assignee does it; and he cited Nichols's Case, in 5 Co., where issue taken of payment on a single bill being found for the plaintiff, he shall have judgment; but if it had been ■found that he had paid, judgment should be arrested; and the differ- ence, he said, is when the issue is found against the pleader, judgment shall be for the plaintiff; but if for him, not. But Justice Twysden said, that if an improper issue is taken, and verdict given thereon, judgment shall be given thereupon, be it for the plaintiff or defendant ; and cited 2 Cro. 575. But an immaterial issue is, whereupon the ver- dict the court cannot know for whom to give judgment, whether for the plaintiff or for the defendant, as in Hob. 175. And with him the Chief Justice and Wyndham wholly agreed, and awarded a repleader. See 2 Cro. 585, 3 Cro. 227, 228, and 2 Cro. 5.^ I Atkins, J., was clear that it' the parties join in an immaterial issue, there shall be no repleader, because it is helped after verdict by these words in the statute, viz., "any issue;" it is not said an issue joined upon a material point; and the in- tent of the statute was to prevent repleaders ; and that if any other construction should be made of that act, he was of opinion that the judges sat there not to ex- pound, but to make a law ; for by such an interpretation much of the benefit in- tended by the act to the party who had a verdict, would be restrained. The other justices were all of opinion that since the making of this statute it had SECT, m.] KEMPE V. CREWS. 291 MAYOR, &c. OF LONDON v. GORREY. In the King's Bench, Tbinitt Tbbm, 1675. [Reported in 2 Levinz, 142.] Debt for scavage, and declares upon a patent of Edw. IV. The de- fendant imparles, and in a term after demanded oyer of the letters pa^ tents (which after imparlance he ought not to have), the plaintiif de- murred quia placitum prcsd. in barra placitat minus sufficiens, &o. The defendant rejoins, quod placitum proed. est sufficiens. Curia, this was no plea, and therefore does not warrant the demurrer in this form, ideo judgment for the defendant, and non quod replacitent, as was desired.^ KEMPE V. CREWS. In thb Common Pleas, Hilaet Teem, 1696. \Beparted in 1 Raymond, 167.] Teespass for his close broken, called Broadclose, in Devonshire, and for taking and impounding three cows, &o. To all, besides the taking and impounding, the defendant pleads not guilty; and as to that, he says that he was possessed for a long term of years of the place where, &c. ; that he demised to Williams for part of the term, rendering for rent ; and for rent arrear he took the cattle in the place where, &c., as a distress, &o. The plaintiff replies, that the cat- tle were not levant and couchant ; upon which issue is taken, and ver- been always allowed, and taken a.9 a difference, that when the issue was perfectly material there should be no repleader ; but that it was otherwise where the issue was not material. And Scroggs, J., asked merrily, if debt be brought upon a bond, and the de- fendant plead that Robin Hood dwelt in a wood, and the plaintiff join issue that he did not, this is an immaterial issue ; and shall there not be a repleader in such case after verdict ■? Ad quod nonfuit responsum. Read v. Dawson, 2 Mod. 140. Love V. Wotton, Cro. El. 245; Sandback o. Turvey, Cro. Jac. 585; Tryon v. Carter, 2 Stra. 994 ; Enys v. Mohen, 2 Stra. 847 ; Workman v. Chappel, Hard. 331 ; Coze V. Cropwell, Cro. Jac. 5 ; Plomer v. Ross, 5 Taunt. 386 ; Rex v. Phillips, 1 Burr. 301 {semble); Wordsworth v. Brown, 8 Dowl. 698; Page v. Walker, 1 Tyl. 145 'seTnble), accord. — Ed. 1 Crosse v. BUsan, 6 Mod. 102 ; Lumley v Hutton, 1 Rol. R. 271 ; Holcome v. BawUns, Moore, 461; Tasker v. Salter, Moore, 867; Climson v. Pool, Latch. 148; Anon., Sav. 89, accord; Grills u. Ridgeway, Cro. El. 818; Dobson v. Douglas, 3 Lev 20 ; Stephens v. Cooper, 3 Lev. 441, contra. See Zouch v. Bamfield, 1 And. 167. — Ep. 292 WITTS V. POLEHAMPTON. [CHAP. VII. diet for the plaintiff. And Darnell, Sergt., moved for a repleader, be- cause this was an immaterial issue.* An3 judgment was given for the plaintiff, unless cause should be shown to the contrary the first day of this Hilary term. At which day Darnell argued, as he had argued before, that this was an imma- terial issue, and that upon a repleader they ought to begin where the first fault is made, and that is where the immaterial issue is tendered, and not where it is taken. 21 Hen. VI. 14 ; 7 Hen. VII. 3 ; 22 Hen. VI. 19 ; Long 5 Ed. IV. 108 ; Bro. Repleader, 18, 21, 31, 35.^ And he said that the difference is, that if the verdict passes against him who made the first fault in pleading, there no repleader shall be granted ; but it is otherwise if it passes for him; which distinction is warranted by 15 Hen. VII. 4 ; Bro. Repleader, 28, 24 ; 24 Hen. VI. 57 ; Hob. 112 ; Tasker V. Salter. Now in this case the plaintiff made the first fault in plead- ing, and the verdict passed for him, and therefore a repleader is grant- able. And the reason why it was denied in the case of Col well and Milnes, might be because the plaintiff perhaps prayed it himself, be- cause he did not think the damages good that were given by him ; but here the defendant prays it. But it was adjudged by the whole court that no repleader should be awarded. For it is not totally an imma- terial issue ; for perliaps the defendant chased the cattle upon the land liable to his distress, and then levancy and couchancy is material; and the court will intend that it was so after a verdict. And therefore judgment was given for the plaintiff.* WITTS V. POLEHAMPTOK In the King's Bench, Michaelmas Teem, 1698. [Reported in 3 Salkeld, 805.] Pee Holt, C. J. Where the plea of the defendant confesses the duty for which the plaintiff declared, but doth not sufficiently avoid it, and thereupon issue is joined on an immaterial thing, if it is found for the plaintiff, he shall have judgment, though the issue was im- material ; but where the defendant's plea avoids the plaintiff's duty, who replies and traverses a matter not material, and issue is taken upon such immaterial traverse, and it is found for him, the statute of jeofails will not help in such case ; but there must be a repleader. 1 Only so much of the case is given as relates to the question of repleader. — Em ' Symmers v. Kegen, Cowp. 510, accord. — Ed. ' See Webbs v. Bannister, Doug. 396 ; Taylor v. Whitehead, Doug, til ; Clears a Htevens, 8 Taunt. 418. — Ed. SECT, in.] STAPLE V. HEYDON. 293 STAPLE V. HEYDON. In the Queen's Bench, Tbinltt Teem, 1703. \Reported in 6 Modem Reports, 1.] The plaintiff. Staple, brings trespass against John Heydon ana George Fowler, for that they, on the thirty-first day of May, in the thirteenth year of the late King William, broke his close, called " the wharf," in Stepney, in Middlesex, and threw down a perch of rails therein standing ; and also, for that, on the seventh day of July follow- ing, they entered into the same wharf, and committed the like trespass. The defendant, George Fowler, as to all, pleads not guilty. But John Heydon, as to the trespass laid on the thirty-first of May, pleads not guilty as to the force, and justifies the entry, and throwing down the rails, for that long before one Edward Gray was possessed by virtue of a certain lease for eighty years, then to come, and yet unexpired, of the said wharf, and also of a yard next adjoining there- unto ; and that, for the necessary use of the said yard, he had and used a way over the said wharf to certain stairs on the river Thames, which was thereunto contiguous, there to take water, &c. ; and that being so possessed, he, on such a day and year, which was prior to the time laid in the trespass, demised the said yard, inter alia, to the defendant, John Heydon, for a term of years yet unexpired, with all lawful ways, &c., thereunto belonging ; by virtue whereof he entered, and was pos- sessed, &c., whereby he was entitled to the said way ; that the plaintiff obstructed it with rails, so that he, coming to use it, could not pass ; and that he requested the plaintiff to open the rails, which he re- fused ; so he justified the throwing them down. He pleaded directly in the same manner to the other trespass laid on the seventh of July ; and avers that, at the several times, he had no other way to the said stairs and river Thames than by and through the said wharf. The plaintiff, as to the plea to the first trespass, replies, that the defendant, John Heydon, had another convenienter way to the river Thames than through the said wharf, and thereupon they were at issue ; and upon the plea to la* trespass on the seventh of July he demurs ; « therefore let a jury come to try the issues, and assess contingent damages upon the demurrer." Both defendants made default at nisi prius ; which, being recorded, the inquest is awarded by default, and G. Fowler is found guilty of the trespass on the thirty-first of May, but acquitted of that on the seventh of July ; and John Heydon is acquitted of the trespass on tho thirty-first of May, as to the force, but the jury found, as to the 294 STAPLE V. HEYDON. [CHAP. VII, rest, that he had no other way to the said stairs and river Thames than through the said wharf; and assess damages upon the demurrer, and acquit him of the trespass on the seventh of July. In this case several points were moved and resolved by the court. The first question was, whether a repleader should be in this case, there being, as was said, an immaterial issue joined. And the court held clearly the issue was impertinent. But as to repleaders in general, the court held, — First, That a repleader is to be awarded when such an issue is joined, as the court after trial thereof cannot give a judgment, as being impertinent or uncertain, and not determining the right. Secondly, That before the statute of jeofails, if such an issue were joined, the court before trial might award a repleader. Thirdly, When a repleader is awarded, the amendment must begin where the plea, which makes the issue bad, begins to be faulty; and therefore if one make himself a bad title to his declaration, to which there is a bad bar, and thereupon a bad replication, on which there ia issue, there the repleader must be awarded and entered on record ; and the plaintiff shall declare de novo, &c. But if the bar be good, or the plea be good, and the replication bad, and issue thereupon, there a repleader will be only as to replication ; but if bar and replication be both bad, and a repleader is awarded, it must be as to both. Fourthly, If the court award a repleader where it ought not to have been, or deny it when it ought to be, it is error. Fifthly, That upon the award of a repleader, there must be no costs, because it is a judgment of the court upon the pleading; but upon amendment of a plea in paper, there must be costs. Sixthly, That upon a general rule for repleader, without any direc- tion from the court from what they should begin the repleader, it must begin from the first fault which occasioned the bad pleading com- menced ; for the judgment is, quod partes replacitent. Seventhly, That the pleadings in this case were such as a repleader would be awarded upon at the common law ; for the defendant having insisted upon a title to a way by grant, his averment that he had no other way was immaterial, and by consequence the issue thereupon im- pertinent; besides, there was no issue at all joined, for the plaintiff's aflirmative does not meet with the defendant's negative. Eighthly, That though a repleader should have been at common law in this case, this motion having been made before trial, and it being doubtful whether a verdict would not help it by the statute of jeofails, the court said it would be just in them not to grant a re- pleader till after verdict ; for they said they might indeed grant a re- pleader before verdict at common law, but they were not bound to do iL SECT. III.] REX V. PHILIPS. 295 So note the diversity since the statute ; for though it were reason- able to award a repleader before verdict at common law, where the pleading appeared such on which no judgment could be after verdict ; yet since the statute, when a verdict may cure immaterial or infoi-mal issues, it may not be proper to do it. Ninthly, After the trial the court held that this issue was such on which no judgment could be; for the defendant pleaded that he had no other way to the stairs and river Thames ; the plaintiff replies that he had another way to the Thames ; and the jury found no other way to the said stairs and river Thames ; so in truth there was no issue joined. Tenthly, That in this case there could be no repleader, for the par- ties were quite out of court by the default. REX V. PHILIPS. Is THE King's Bench, Hilaet Teem, 1720. [Reported in 1 Strange, 894.] Information in natura de quo warranto for usurping the office of mayor of Bodmyn. The defendant by his plea makes title under two charters, one 11th of March, 5 Eliz., whereby the inhabitants were incorporated by the name of mayor and burgesses, and after appointing who shall be the first members of the corporation, it goes on and provides for the elec- tion of others on their deaths ; and as to the mayor it is provided, that on Michaelmas day in every year the mayor, burgesses, and common council, or the major part of them, shall assemble and nominate two capital burgesses, out of whom the inhabitants are to choose one to be mayor, who, being so chosen, should take an oath to execute the office of mayor for the next year and till another should be chosen. The other charter was 30th April, 36 Eliz., wherein the queen recit- ing the former manner and time of election, and the continuance in the office under such election, and reciting further that the corporation had petitioned her, quatenus she would alter modum et tempus eli- gendi of the mayor ; therefore she, confirming all their former rights and privileges, appoints the election to be for the future by the mayor, common council, and town clerk, on the 24th of September joro um anno integro tunc proxime sequerH. And then he avers, that as well before as since the second charter, the usage has been, for the mayor to hold over till another was chosen, and that he, being elected mayor. 298 REX V. PHTLIPS. [chap. TII. served for a year, and the town clerk being then dead, and no new one chosen, there could be no new election of a mayor; et eo warranto he claims to hold the office of mayor till another shall be elected and sworn, and traverses the usurpation. The attorney for the crown prays oyer of the last charter, which being set out, there appears a further clause, whereby the queen abol- ishes all the former manner eligendi, nominandi et appunctuandi of the mayor; and then takes issue, that since the charter of 36 Eliz, there has been no such usage of holding over ; which goes down tc trial, and is found for the king. It was now moved in arrest of judgment, that this was an immate- rial issue, because it not being a corporation by prescription, the title to the office must depend upon the charter, and not upon any usage within time of memory; and that this is worse tlian most cases of immaterial issues, for they are often good if found one way, and bad the other; as solvit ante diem is good if found for the defendant. But here the finding for the king can neither destroy, nor could a verdict for the defendant have established, his right, because his right does not depend on any usage inconsistent with the charter, but must stand or fall by the charter itself And without much argument the court was clear in opinion, that this was an issue totally immaterial. But then the question arose, what the court should do in this case, —whether they were to award a re- pleader, or, laying the replication out of the case, proceed to give judg- ment on the defendant's plea. And for a repleader it was argued by Mr. Solicitor General, that the court could not give judgment on the plea, for eveiy judgment must be either, 1. On an issue in fact, found by verdict ; 2. Issue in law, on demurrer; 3. 27il dicit; or, 4. Confession. 1. As to the first, it is admitted there is no good issue in fact, and consequently no good verdict to found the judgment upon. 2. Here is no issue in law, for want of a demurrer. 8. It cannot be by nil dicit, for the defendant has pleaded. 4. The only question is, whether this plea can be taken to be a confession of the usurpation ; and I take it, it cannot, for though an usurpation is charged, yet it is so far from being confessed, that he expressly denies it in his traverse ; and relies upon it that he has a good right; he admits the user, but not the usurpation; the charge upon him is, that he has exercised this office without lawful authority ; it is true, says he, I have exercised this office, but I insist that I had a good authority so to do ; and now will anybody say, this is a confession of the usurpation ? But then it is objected, that if the title set out is ill in point of law, then the admission of the user is a tacit admission of the usurpation. SECT. III. J REX V. PHILIPS. 297 To this I answer: 1. That the title is good in law under the two char- ters, taking them together. By the first charter the mayor being elected by the inhabitants on Michaelmas-day is to hold for a year and till another is chosen. The second charter, which was made to alter the tempus et modum eligendi only, says he shall be chosen by a select number, and upon 24th September. But it does not meddle with the right of holding over ; on the contrary, it expressly confirms all their former rights and privileges, of which this of holding over was one. And it. will be hard to say, that an alteration in the manner of electing only, shall take away the former right which the officer when elected had in the 'office, especially in a point which tends so much to the pre- servation of the body corporate. 2. But if the plea should be ill in point of law, yet the court cannot give judgment that it is so, till it comes properly before them. If they may, then whenever a vicious plea is put in, the court may, without the party's answer or demurrer, give judgment upon it immediately ; and that will be the case here, for now the replication is out of the case, and we stand before the court only upon the information and the plea. In Lev. 32, Serjeant v. Fairfax, the issue was held immaterial, and the defendant's plea a naughty plea, but yet the court did not give judgment upon it, but awarded a repleader. Pengelly, Serjt., contra. The defendant in his plea has made no good title to this office, for the second charter is what he must stand or fall by, and in that there is no provision for holding over. But, say they, in the first charter there is, and that continues in force as to every thing in which it is not altered by the subsequent charter. The force of this depends upon that question, whether the second charter is not the entire rule to go by as to the office of mayor. And that it is, is plain from the clause which abolishes all the former method of election ; and if the former method of election be abolished, surely an incidental right under such election will be gone also. The right of election is transferred to other persons ; and can there be a duration under an election, when the foundation of that holding over is gone ? Pro uno anno integro is the same as if tantum had been added, and the acceptance of the charter is general, without any reservation of the former right of holding over. 1 Yen. 297 ; 2 Mod. 95. And as the plea is ill, we take it judgment may be given upon it, for he has confessed the user ; and as to the traverse of the usurpation, that is so immaterial, that in Sir Peter Delme's Case, and the case of Honiton, it was held, the crown could not take issue upon such a trav- erse. Whoever admits a user, confesses at the same time that he is guilty of an usurpation, unless he makes a title to the franchise ; as in the common case of a justification in trespass or for words, where it 298 REX V. PHILIPS. [chap. VII amounts to no justification in law, judgment may be given upon the confession. 2 Roll. Abr. 98, pi. 2, 99, pi. 1, 3 ; Cro. Eliz. 228, 214; 22 Ed, IV. 46 b ; Salk. 173. JiTr. /Solicitor General replied. The corporation could not do any otherwise than accept the charter in general, for it cannot be accepted in part, or with qualifications. I agree tantum is implied in charters of original creation, but not in charters of confirmation. Chibf Justice. We are moved on behalf of the defendant, that we will grant a repleader; that is, in other words, that we should give this cause a further delay, whilst he is holding over all the while. Now consider, that if we should grant it, the defendant cannot mend his case ; for the plea will stand, and, after the formality of a demurrer, we must give judgment upon the goodness or badness of the plea. The attorney for the crown does not pray a repleader, neither would the granting one do him any good, for we cannot better his case, but must rest it upon the demurrer. And therefore, as it will answer no good pur- pose either way, we certainly will not grant a repleader, if there be a more expeditious way of coming to the end of the cause; and I think there is ; for if the plea be ill, I am of opinion it amounts to a confes- sion of the usurpation, and that is warrant enough to ground our iudgment upon. Now the validity of the defendant's title, as he makes it in his plea, depends upon the question, whether the right of holding over subsists under the second charter. And I hold it does not, for it is very observ- able, that the second charter where it I'eoites the former, takes express notice of the clause for holding over ; and then when it comes and abolishes all the former method of election, and appoints it to be in another manner, and that the mayor shall continu in for a year, it cannot be imagined but that this right of holding over was intended to be abolished also. Suppose the second charter had said, that the mayor shall continue in for three quarters of a year ; will anybody say, that the reservation of their former privileges should entitle him to hold on for the other quarter under the old charter ; I believe nobody will think so ; I think this is not to be distinguished from the case of an ill justification in trespass; and therefore, as the plea is ill, and con- tains no title to the franchise, I am of opinion, we may give judgment upon it, as confessing an usurpation. PowTS, J. I am of the same opinion ; for if wo should grant a re- pleader, I do not see how we can have any new light in the cause. Etee, J. If the defendant's plea had confessed the usurpation, I should think it proper enough to give judgment upon the plea; but I do not think any more is confessed by it than the user. The second charter, it is plain, was made only for particular purposes in relation to SECT. III.J REX V. PHILIPS. 299 the election, but meddles not with the duration in the office ; and there- fore I can never agree, that any affirmative words in the charter can take away so great a privilege as that of holding over is, and a privi- lege, too, that may often serve to prevent the extinction of the corpo- ration ; especially when it provides that all the former rights of the corporation, not altered by the subsequent charter, shall still continue. And as to the clause of abolition, that is expressly confined to the authority, form and manner eligendi, but not a word of any right tenendi. I think he is not a new mayor absolutely, but as to the right of hold- inu; over, it subsists in him under the former charter ; the consequence of whicli is, that he has confessed no usurpation, and then no judgment can be given against him upon the plea. FoBTBScuE, J. The defendant cannot mend his case, because the plea is good in form, though not in fact, which is a distinction always taken into the doctrine of repleaders; and of this opinion was Holt, C. J., in the case of Jones v. Bodinner,^ where he said, that if the fact be admitted, there shall be no repleader, but a judgment upon the confession. Here the defendant admits the user, and then the usurpation is a consequence of law, and that is the reason why it is not traversable. Every justification, to make it a perfect one, must both confess and avoid ; and where it does not do the latter, the confession stands. As to the merits of the plea, I think the power of holding over is gone upon the second charter ; for the modus eligendi takes in all the circumstances of the election, and the duration in the office is one of those. Besides, as the day of election is altered, there can be now no hold- ing over under the old charter, for that only empowers him to do it from Michaelmas-day ; but, then, what right has he to hold over from the 24th of September till that time ? I am of opinion that judgment may be given immediately. Per curiam. Judgment for the king. And the corporation peti- tioned for a new charter. 1 Salk. 1. Cambridge ; Press of John Wilson & Soa