Analytical Digest of Cuses: Common Law Courts. ANALYTICAL DIGEST OF CASES. REPORTED IN ALL THE COURTS. 443 PLEADING. ABATEMENT. See Defamation. ADMINISTRATOR. 2. After judgment on demurrer.—Bankrupt. -Render.-Ambiguity.-To an action against a surety upon a bond given under the 1 & 2 Vict. c. 110, s. 8, the defendant pleaded, that, In an action against an administrator, the after the making of the bond, and before the plea that the defendant is not nor ever hath commencement of the suit, the plaintiff brought been administrator, &c., properly concludes an action against the principal in B. R., and with a verification, being undistinguishable in recovered judgment against him, and issued a this respect from the like plea by an executor. ca. sa. thereon, under which the principal was So held by the Court of Queen's Bench on taken; that the latter thereupon caused himspecial demurrer, and by the Court of Ex-self to be brought up by habeas corpus before chequer Chamber, on error from the Queen's Bench. Scott v. Wedlake, 7 Q. B. 766. Cases cited in the judgment: Walker v. Woollaston, 2 P. Wms. 576; Hensloe's case, 9 Rep. 40; Holiday v. Fletcher, 2 Stra. 781; Coulter's case, 5 Rep. 30, a, AMBIGUITY. See Amendment, 2. AMENDMENT. 1. After judgment on demurrer. In assumpsit, the declaration stated that the plaintiffs had consigned wheat to the defendants, who were corn-factors, for sale on account of the plaintiffs; that the defendants promised the plaintiffs to obey and observe the lawful orders and directions of the plaintiffs, to be given by them to the defendants, in regard to the sale and disposal of the wheat; and that, although the plaintiffs ordered the defendants not to sell below a certain price, and although the same was a lawful order and direction on that behalf, yet the defendants, not regarding their promise, sold at a less price. Plea, that, after the delivery of the wheat to the defendants, they became and were under advances to the plaintiffs in respect thereof; that they gave the plaintiff's notice that they required to be paid such advances, and that in default they should sell the wheat and repay themselves; and that, although a reasonable time had elapsed, the plaintiffs did not repay them such advances; whereupon the defendants, for the purpose of reimbursing themselves, sold the wheat for the best prices that could then be obtained for the same, &c. : Held, that the plea was bad in substance, there being nothing in the transaction disclosed upon the record, from which it could be inferred that it was part of the contract that at any time the wheat should be forfeited, or the defendant's authority to sell enlarged, so as to enable them to sell for repayment of advances, without reference to its being for the interest of the principals to sell at that particular time, and for that price. Leave granted to add pleas, alleging the sale to have been for the plaintiff's a judge, "who then, and before any breach of the condition of the bond, and before the time for the principal rendering himself according to the practice of the said court, and the said condition had expired, and according to the said practice of the said court, committed him into the custody of the marshall, in execution at the suit of the plaintiff upon the said judgment;" that the marshall received and kept him in execution as aforesaid, accordafter the return day of the ca. sa., for a long ing to the practice of the said court, until and space of time, to wit, hitherto; and that, from until he was so taken under the ca. sa., the the time of the recovery of the said judgment, principal was always ready and willing to court and the said condition, and whilst he rerender himself according to the practice of the mained in custody as aforesaid, was ready and willing to render himself, and would have rendered himself accordingly, but that he was prevented by the plaintiff from so doing, in manner aforesaid: Held, that if the plea was to be regarded as a plea of performance, it was bad, for not stating distinctly that the principal did render and that, if it was to be considered as a plea in himself according to the practice of the court; alleging that the act of the plaintiff, in suing excuse, it was equally bad for not distinctly out the ca. sz. against the principal, made it impossible for him to render-the court not taking judicial notice that the issuing of that tional plea allowed to be pleaded, after judgwrit was any impediment to a render. Addiment for plaintiff on demurrer, and with affidavit of merits. Hayward v. Bennett, 3 C. B. 404. See Memorial of. ANNUITY. ASSIGNMENT, new. When necessary.-Trespass for breaking and entering plaintiff's close, called, &c., and cutting down and prostrating 100 yards of his rails there standing. Plea, a public right of way over the close, and that defendants were 444 Analytical Digest of Cases: Common Law Courts. using the said way, and because the said rails were wrongfully erected upon, and standing in and obstructing the said way, they prostrated the same, &c., which are the same supposed trespasses, &c. Replication, that the said rails were not standing in the said way, in manner, &c. Issue thereon. The defendant had cut down some rails of the plaintiff standing on a public highway in the close described, and other rails belonging to him, which were in the same close, and not on the highway: Held, that the plaintiff could not recover; for, by taking issue on a plea which restricted the matter of dispute to the highway, he had excluded himself from proof as to rails in any other part of the close; and, to recover for these, he should have new assigned. Bracegirdle v. Peacock, 8 Q. B. 174. Cases cited in the judgment: Bowen v. Jenkin, 6 A. & E. 911; Greene v. Jones, 1 Wms. Saund. 299, 300, note (6). Cases cited in the judgment: Hansard v. Robinson, 7 B. & Cr. 90; Stedman v. Gooch, 1 Esp. 4; Kearslake v. Morgan, 5 T. R. 513; Richardson v. Rickman, (cited) id.; Reynolds v. Davies, 1 Bos. & P. 625; Wain v. Bailey, 10 A. & E. 616. BILL OF EXCEPTIONS. When exceptions are taken to the direction of a judge, it is not enough to state in the bill of exceptions that he declined to direct the jury in the way suggested, without showing what his direction was. M'Alpine v. Mangnail, 3 C. B. 496. CO-DEFENDANT ABROAD. Statute of Limitations. — Declaration, in assumpsit, reciting a writ issued on 28th Nov. 1843, charged, that heretofore, "to wit, on the 29th day of Dec., A. D. 1830," defendant contracted that he would, "within 12 months from a certain day, to wit, the day and year See De Injuria; Justification; Right of aforesaid," supply the plaintiff with certain Way. BILL OF EXCHANGE. 1. Payment into court.-To a declaration containing a count on a bill of exchange for 261. 13s. 2d., and also an indebitatus count for 301., the defendant pleaded, amongst other pleas, as to 101. 9s. 1d., parcel of the sum in the first count, and also as to 10l. 9s. 1d., parcel of the sum in the second count; pay ment into court of 11., and no damages ultra: Held, bad on special demurrer, as payment of a smaller sum is no satisfaction of a greater. Semble, that where there is a count on a bill of exchange, and also a count for the consideration, a plea of payment into court should state that the bill was given on account of the debt in the second count, and then plead pay ment into court of the amount of the bill and interest. Tattersall v. Parkinson, 4 D. & L. 2. Satisfaction of debt.-Debt for money lent, and on an account stated. Plea, as to 100%., parcel, &c., that after that sum had become due, and before the commencement of this suit, the defendant made his promissory note for the payment to the plaintiff's order of 100/., six months after date, and delivered the same note to the plaintiff, who then took and received the same for and on account of the said sum of 100l., parcel, &c., and the causes of action in respect thereof: Held, bad, on general demurrer, for not averring that the note was still running, or that it had been indorsed over by the plaintiff. Semble, the plea was not bad for not averring distinctly that the note was delivered by the defendant, as well as accepted by the plaintiff, for and on account of the debt. Price v. Price, 16 M. & W. 232. articles. Breach, that defendant "did not nor would, within 12 months from the said day, to wit, the day and year aforesaid," supply the articles. Plea, that the cause of action did not accrue within six years next before the commencement of the suit. Replication, that defendant, when the action accrued, was beyond the seas, and that the action was commenced within six years of his first return after such made by defendant jointly with W.; that, after accruing. Rejoinder, that the promise was the accruing of the action, and more than six years before the commencement of the suit, W. was in the kingdom, and might have been sued. On demurrer to the rejoinder, Held, 1. That the declaration was substantially good, the averments showing that 12 months had elapsed before the action. And, further, that the 12 months had so elapsed. that the plea might be resorted to, as showing 2. That the rejoinder was no answer to the replication; for that, under stat. 4 Anne, c. 16, s. 19, if a right of action accrue against several persons, one of whom is beyond seas, the Statute of Limitations does not run till his return, though the others have never been absent Q. B. 811. from the kingdom. Fannin v. Anderson, 7 Cases cited in the judgment: Parkinson v. White head, 2 M. & G. 329; Brooke v. Brooke, 1 Sid. 184; Perry v. Jackson, 4 T. R. 516. COMPOSITION DEED. Tender. - In assumpsit, the defendant pleaded, that, after the causes of action accrued, the defendant and M., who was jointly liable with him to the plaintiff, became unable to pay their creditors in full; and thereupon it was agreed by the defendant and M., the plaintiff, and the other creditors, that a composition of 4s. 6d. in the pound should be paid upon their debts, and that, upon receiving that sum, the plaintiff and the other creditors should execute to defendant and M. a general release; that a deed of release was prepared for execu Analytical Digest of Cases-Common Law Courts. 445 tion, and that the creditors, except the plain- far as they relate, &c., in manner and form, tiff, received the composition, and executed the &c. : and new assignment, the plaintiff sued, release; that the defendant has always been not only for the grievances in the 5th plea ready to pay the plaintiff the composition of mentioned, &c., but also for, &c., alleging 4s. 6d. in the pound upon his executing the trover and conversion of pieces of timber other release, of which plaintiff had notice, and was than, and different from those in the 5th plea requested by defendant to accept the composi mentioned, and that defendant, for another and tion and execute the release: Held, bad for not a different cause than that in the 5th plea showing that the defendant and M. offered to stated, converted the last-mentioned goods in pay the defendant the composition money, or manner and form as the plaintiff hath above tendered the release to him for execution. declared, &c. Rosling v. Muggeridge, 16 M. & W. 181. DECLARATION. Commencement of. The rule, Reg. Gen., M. T., 3 W. 4, r. 15, as to the commencement of declarations is compulsory, and therefore a declaration not disclosing whether the plaintiff proceeds in person or by attorney, is irregular. An application to set it aside should be made at chambers, and not to the court, even in Term time. White v. Feltham, 4 D. & L. 454. DEFAMATION. Bankers.-Plea of abatement. - Declaration stated, that petitioner was a banker in partnership with A. and B., and that defendant falsely and maliciously spoke words of plaintiff, and of him in his said trade, imputing to him insolvency; by means whereof plaintiff was injured in his good name, and divers persons believed him to be indigent, and refused to deal with him in his said trade, and one C. withdrew his account from the bank of plaintiff and his said partners. Plea in abatement: that plaintiff carried on the said business jointly and undividedly with A. and B., and not otherwise, and that all the damage in the declaration mentioned accrued to A. and B. jointly with plaintiff, and not to him alone; and that, at the time of the commencement of the suit, A. and B. were living, &c. Held, bad, because it was pleaded in terms to damage, and not to the cause of action, and the special damages to the partnership was not so essentially the cause of action, that without it the action could not have been maintained. Quære, whether the declaration would have been bad on special demurrer, for blending a cause of action vested in the plaintiff simply with a cause common to the partners. Robinson v. Marchant, 7 Q. B. 918. DE INJURIA. Held, on special demurrer, that the replication was not bad for duplicity or as enlarging or departing from the declaration; and was well pleaded. Page v. Hatchett, 8 Q. B. 187. Case cited in the judgment: Bowen v. Jenkin, 6 A. & E.911; Greene v. Jones, 1 Wms. Saund. 299, 300, (6th ed.) And see Assignment, New. Demurrer.-Writ of error.-Where there are issues in fact, as well as in law, on the same record, and the defendant has obtained judgment on demurrer to pleas going to the whole cause of action, but the issues in fact remain untried, the court will not compel the defendant to enter up judgment of nil capiat per breve before the trial of the issues in fact, in order that the plaintiff may bring a writ of error without trying the issues in fact. Hinton v. Acraman, 4 D. & L. 462. Case cited in the judgment: Lawe v. King, 1 JUSTIFICATION. Several trespasses. -New assignment.-DeNew assignment. — Duplicity. Case. Se- claration charged that defendant, to wit, on 1st cond count in trover for goods, to wit, 10 pieces Jan. 1844, with force and arms, "assaulted" of timber. 5th plea, as to the pieces of timber plaintiff, and "then," with great force, &c., in the 2nd count mentioned, that they were ob- seized and shook plaintiff, and dragged him structing a public navigable river, and defend-about, and struck him many blows, by means ant having occasion to navigate, &c., removed the said pieces of timber, &c., which are the same grievances, &c. Replication as to the 5th plea, which is pleaded to the causes of action in the 2nd count mentioned, and so far as they relate to the pieces of timber in the 2nd count mentioned, that defendant of his own wrong, &c., committed the grievances, &c., so of which he was hurt and wounded, and was sick, &c., and so continued for a long time, to wit, one week, &c. Plea 2. That defendant was lawfully possessed of a close, and a gate belonging to it, and plaintiff, a little before the time when, &c., with force and arms, and with a strong hand, and against the will of defendant, attempted to 446 Analytical Digest of Cases: Common Law Courts. break open, and did then thereby unlawfully mentioned persons, whereby the said persons break open, the gate, and in breach of the peace remained unpaid and defrauded: Held, bad, on did thereby attempt forcibly to enter and un- special demurrer, for not stating the names of lawfully trespass upon the close, and would the persons alleged to have been defrauded. then unlawfully and forcibly, &c., have effected The declaration also averred, that the libel such attempt, if defendant had not defended used the words "black legs" and "black his possession; whereupon defendant, being sheep," to denote persons guilty of fraud, and in his close during the unlawful attempt, de- that divers persons had formed a club called fended his possession and resisted such at-"The Royal Western Yacht Club;" that detempt; and, because he could not successfully fendant, intending to cause it to be believed resist without in a slight degree committing that plaintiff was a confederate of persons the trespasses, he did a little unavoidably, &c., guilty of fraudulent play at cards, and of being commit the trespasses in the declaration, using black legs and black sheep in the sense aforeno unnecessary force, which are the trespasses said, in a certain newspaper, &c., published of complained of. and concerning the plaintiff the following libel: -"Royal Western Yacht Club.-Expulsion of two black legs," (meaning an expulsion from the club of two persons being black legs in the sense in which that word was used as afore said). The declaration then alleged, that suspicion had attached to two members (meaning the aforesaid two persons) of the club, owing to two gentlemen having been plucked at cards, at the residence of one of the two suspected members, in a manner seeming to indicate foul play; that inquiry took place, which resulted in expelling the two suspected persons; that a Plea 3. That defendant was lawfully possessed of a cow being in a certain close, and plaintiff, a little before the time when, &c., did, against the will of defendant, endeavour to drive away, and dispossess defendant of, and was driving away from the close, the cow, and dispossessing defendant of the same, and would then unlawfully, forcibly, and in breach of the peace, have driven away, and dispossessed defendant of, his said cow; wherefore defendant, &c., (justifying as before, mutatis mutandis). On demurrer to the replication, held, 1. That the trespass on the part of the plain-person, known to be a confederate of the extiff being alleged by the pleas to be forcibly made, the justification was sufficient, though it was not alleged that the plaintiff had been requested to desist. 2. That the pleas were not objectionable for omitting to show a good justification of the wounding. 3. That the third plea was not objectionable for omitting to show that the cow was on defendant's close, Held, also, that the declaration showed only one trespass committed on a single occasion; and, therefore, that, to the above pleas, the plaintiff could not reply both de injuria, and also, that defendant committed the trespasses in the declaration on other occasions than those in the pleas mentioned. On special demurrer to the replication for duplicity. Polkinhorn v. Wright, 8 Q. B. 197. Cases cited in the judgment: Earl of Manches- LIBEL. pelled parties, sought admission into the club. His name was O'B. (meaning thereby the plaintiff): Held, on motion in arrest of judg ment, that, as matter shown to be libellous by prefatory averment was so coupled with inuendoes in the declaration as to show it to have been published by the defendant of and concerning the plaintiff, the declaration need not aver it to be also published of and concerning the Royal Western Yacht Club, or any other part of the prefatory averment. O'Brien v. Clement, 16 M. & W. 159. Cases cited in the judgment: Janson v. Stuart, 1 T. R. 748; Hickinbotham v. Leach, 10 M. & W. 362; Alexander v. Angle, 1 C. & J.143; 1 Tyr. 9; 7 Bing.123; 11 M, & W. 293. 2. A libellous paragraph published of the plaintiff in a newspaper, stated (in substance) that he was a confederate of black legs; that he had sought admission into a yacht club; that he gave an entertainment in the expecta tion of being elected, but was black-balled, and the next morning bolted, and some of the tradesmen in the town had to lament the fashionable character of his entertainment. A 1. In case for libel, the declaration alleged plea of justification, after alleging facts to show the libel to be, that plaintiff sought admission that the plaintiff was the confederate of per to a club held in the town of P., and gave an sons who had been guilty of cheating at cards, entertainment a few days before he was to be and the facts of his giving an entertainment, elected, as he thought; that three days after he and of his being black-balled, as mentioned in stood the ballot and was black-balled; that the libel, &c., stated that on the following next morning he bolted, and some of the poor morning "he quitted the town and neighbourtradesmen had to lament the fashionable cha- hood, leaving divers of the tradesmen, to whom racter of his entertainment. Plea, that plain- he owed money, unpaid," (naming them:) tiff did suddenly leave and quit the town of P. Held, bad, inasmuch as such quitting night without paying every one and all of the debts be innocent, and without any intention to decontracted by him with divers persons in the fraud. O'Brien v. Bryant, 16 M. & W. 168. said town, and without notice to them, and with LIMITATIONS, STATUte of. intent to defraud and delay some of the last- See Co-defendant Abroad. 1 Analytical Digest of Cases: Common Law Courts. MEMORIAL OF AN ANNUITY. - Verification by the record. A replication = taking issue on a plea alleging that no memorial of an annuity had been inrolled, and setting =forth such memorial, properly concludes with a verification by the record. Thompson v. Lack, 3 C. B. 540. Case cited in the judgment: Richardson NON-ASSUMPSIT. To a count upon a contract by the defendant to receive a certain quantity of wool from the plaintiffs at a certain price, the defendant pleaded, that, at the time of making the con= tract, the plaintiffs produced a sample, and promised the defendant that the bulk was equal in quality and description thereto, but that the wool when tendered was found to be of inferior quality, wherefore the defendant refused to accept it: Held, that the plea was not bad, on special demurrer, as amounting to non assumpsit, inasmuch as the contract therein set up was not necessarily incompatible with the constract declared on. Sieveking v. Dutton, 3 C. B. 33.1. PAYMENT INTO COURT. Commencement of plea.-A plea of payment into court must be pleaded, in its commencement, to the further maintenance of the action; and if it be pleaded to the maintenance of the action generally, this defect is not, upon special demurrer, cured by its concluding to the further maintenance of the action. Rosling v. Muggeridge, 16 M. & W. 181. See Bill of Exchange, 1. PROMISSORY NOTE. Delivery on payment of debt.-Debt by payee against maker of a promissory note, with Plea, as counts for money lent, interest, &c. to 1007., parcel of the moneys in the second and subsequent counts, that defendant, before the commencement of the suit, made his promissory note for payment to the plaintiff's order of 100%., six months after date, and delivered the same to the plaintiff, who then took and received the same for and on account of the said sum of 1007. Replication, that the period of six months, specified in the said note, expired before the commencement of the suit, and the note became then due and payable; yet the defendant hath not paid the same. On demurrer to the replication, Held, that the plea was bad, as it did not aver that the note was not due, or that it had been indorsed to a third person. Semble, that the plea was not bad for omitting to state that the note was given, as well as received, on account of the debt. Price v. Price, 4 D. & L. 537. son, Robin PUIS DARREIN CONTINUANCE. 447 A plea puis darrein continuance, pleaded on or after the 1st day of the sitting at nisi prius, must be pleaded in form as a plea at nisi prius, and delivered to the judge; and where it was pleaded as a plea in banc, and delivered to the attorney on the other side on the 1st day of the sitting, and the plaintiff, treating it as irregular, proceeded to trial as if no such plea had been pleaded, and obtained a verdict, the court refused to set the verdict aside. Payne v. Shenstone, 4 D. & L. 396. See Release. RELEASE. Puis darrein continuance after a demurrer.Quære, whether it is competent to a defendant to plead a release puis darrein continuance after a demurrer to his rejoinder to a replication to one of several pleas originally pleaded to the action. Wright v. Burroughes, 3 C. B. 344. RIGHT OF WAY. Effect of new assignment. - Trespass for breaking and entering the plaintiff's close, and damaging the fences, &c. Plea of justification under a right of way. New assignment, that the action was brought for a trespass on a certain other portion of the said close, setting out that portion by abuttals. Plea to the new assignment, that before the said time when, &c., and whilst the defendant so had the right to the said way in the first plea mentioned, the plaintiff obstructed the way in the first plea mentioned, by digging a trench across the same, and because the defendant could not remove the obstruction, he did, for the purpose of avoiding the same, and using the way, depart out of the same, along the said other portion of the close in the new assignment mentioned, and because the said fences in the new assignment mentioned were standing on a portion of the close in the new assignment mentioned, and that without breaking and damaging the same he could not go over the residue of the said close in which, &c., he did necessarily a little break and damage the said fences, &c. Replication de injuria: Held, (Platt, B., dissentiente,) 1st, That the right of way stated in the plea to the declaration was not admitted by the plaintiff in his new assignment; and 2ndly, that the right being reasserted, though informally, in the plea to the new assignment, it was put in issue by the replication, so as to throw the onus of proving it on the defendant. Robertson v. Gantlett, 16 M. & W. 289. Cases cited in the judgment: Norman v. Wescombe, 2 M. & W. 349; Brancker v. Molyneux, 1 M. & G. 710. Demurrage. SEVERAL COUNTS. Account stated. Since the Cases cited in the judgment: Hansard v. 7 B. & C. 90; Stedman v. Gooch, 1 Esp. General Rule, Hil., 4 W. 4, pt. 2, art. 6, a 3; Kearslake v. Morgan, 5 T. R. 513; Rich-count on a charter-party, going for demurrage ardson v. Rickman, 5 T. R. 517; Reynolds v. and detention of the ship, cannot be joined Davies, 1 B. & P. 625. |