within one hundred and fifty miles of the General Post Office. Averment that plaintiff had an establishment in Manchester and in Liverpool, of which defendant had notice (a). The 10th, 11th, 12th, and 13th breaches (a) A similar allegation in the declaration, as originally framed, was traversed by the fifteenth plea. The plaintiff demurred to this plea, on the ground that there "was equally a breach of covenant, whether the defendant had notice or not." The defendant took out a summons calling upon the plaintiff to shew cause why the demurrer "should not be set aside as frivolous and irregular, or why the allegation of notice contained in the declaration, and to which the said 15th plea was pleaded, and the said 15th plea, and the demurrer thereto, should not be struck out, the said allegation being immaterial and surplusage to entrap the defendant." The summons was heard before Pollock C. B., who dismissed it. In Easter term, 1852, W. R. Cole obtained a rule, calling on the plaintiff to shew cause as above, and also why the defendant should not be at liberty to sign judgment for want of a replication to the 15th plea, and why a joinder in demurrer, which had taken place since the dismissal of the summons, should not be struck out, and the order of Pollock C. B. be rescinded. Dowdeswell now shewed cause. The argument in support of the rule will be that, if the demurrer be not frivolous, the allegation is unnecessary. But the plaintiff, though he denies that the traverse is material, is not bound to submit to the risk of a demurrer for want of the allegation. Besides, the notice may be important as influencing damages. [Lord Campbell C. J. For that purpose, the fact might be proved without being on the record.] Many allegations not traversable may be properly introduced into the declaration, as, for instance, the allegation of notice to the defendant in a declaration against the maker of a promissory note, which is in the form given by the Regula Generalis of Trin. T. 1 W. 4 (2 B. § Ad. 783.). Whether the allegation be necessary or not is open to argument; Vyse v. Wakefield (6 M. & W. 442., affirmed in Exchequer Chamber, 7 M. & W. 126.), Com. Dig. Condition (L 9.), ib. Pleader (C 75.). The defendant is seeking to set aside his own proceedings at the cost of the plaintiff. It is supposed that Cutts v. Surridge (9 Q. B. 1015.) authorizes this application. But there the Judge at Chambers thought that the pleading was tricky, and the Court would not interfere with his discretion: here the Judge has thought the pleading It is not a ration and the murrer shall be set aside as entrap or un fairly perplex the defendant. So held, before stat. 15 & 16 Vict. c. 76. 1853. TALLIS. V. TALLIS were for directly and indirectly carrying on the trade in Manchester and Liverpool. proper; and the Court will, in like manner, abstain from interfering. If the defendant, before pleading, had applied to have the allegation struck out, the plaintiff at least might have obtained terms, such as an undertaking not to bring error. It may be questioned whether the Judge or the Court has any power to strike out the allegation: the Regula Generalis of Trin. T. 1 W. 4. (2 B. & Ad. 783) is clearly inapplicable. W. R. Cole, contrà. Cutts v. Surridge (9 Q. B. 1015.) cannot be distinguished from this case. The principle of that decision was that where an allegation is immaterial it may be struck out, and where it is material a demurrer to a traverse of it is frivolous. [Wightman J. Why did you traverse?] Because it rather appears that the allegation is material: if the plaintiff thinks so, he should join issue, and not demur. Lord CAMPBELL C. J. This rule must be discharged. We cannot make it absolute unless it was imperative on the Lord Chief Baron to make the order for striking out either the allegation or the demurrer. I cannot think there is such an universal rule In Cutts v. Surridge (9 Q. B. 1015.) it was thought that the plaintiff's course had not been fair and bonà fide. But we see no reason for thinking so in this case: there is nothing like subtlety of pleading. The allegation might be, and I think was, immaterial: but it was not introduced for any dishonest purpose. We are called on to set aside the demurrer as frivolous: I incline to think that it is good, and that the traverse is bad, the want of notice being immaterial. As to the other alternative, the striking out of the allegation, I do not think that in this state of things we should be justified in making the order. The defendant is not entitled to ask this after taking the traverse, to say nothing of his having joined in demurrer. I mean to lay down no general rule: the matter is in the discretion of the Judge. I do not say that, if the Lord Chief Baron had made such an order here as was made in Cutts v. Surridge, I should have thought the order ought to be set aside. But he thought that no such order should be made: I cannot say that he was wrong, and therefore cannot set aside his order. WIGHTMAN J. This is an application to the summary jurisdiction of the Court, to prevent the plaintiff from taking a step which by the ordinary rules of law he is entitled to take. The Court no doubt will interfere when it is perfectly clear that a party is attempting to take an unfair advantage. In Cults v. Surridge it was thought that the plaintiff was attempting to Plea 16. To the first nine breaches, "except so far as the same respectively relate to anything done, or alleged or supposed to have been done, by defendant 1853. TALLIS V. TALLIS. entrap the defendant: but every thing turns on the particular case. Here it would be difficult to make the rule absolute without contradicting Mr. Cole's view that the traverse may be material: the Court must be perfectly satisfied that it is immaterial, before striking it out. I myself incline to think, with my Lord, that it is immaterial. But we cannot interfere without being satisfied that the Lord Chief Baron, on all the facts before him, was wrong. In Cutts v. Surridge (9 Q. B. 1015.) we supported the view taken by the Judge at Chambers. (ERLE J. was absent.) : CROMPTON J. I quite agree. If Cutts v. Surridge is to be understood as laying down the general rule that, when an allegation is traversed and the traverse demurred to, either the demurrer is to be set aside as frivolous or the allegation is to be struck out, I should not agree with the decision. I do not agree with the reasons assigned for it; and I think the practice suggested would be wrong. The demurrer here appears to me to be good but, on the other hand, can we at this stage say that the allegation is to be struck out? I am not aware that such a course has ever been taken except where the pleading has been scandalous or prolix. It would be very dangerous if we were to oblige a party to alter his declaration under terror of having his demurrer held frivolous. There may be a writ of error. It seems to have been assumed that the Judge at Nisi priùs would treat the allegation as admitted if it was not traversed: but the consequence does not follow. Lord CAMPBELL C. J. The ordinary practice is that a rule to set aside a Judge's order must, if discharged, be discharged with costs. But Cutts v. Surridge so nearly resembles the present case, that we give no costs. Rule discharged, without costs. The demurrer was argued in Trinity term (May 28th) 1852, before Lord Campbell C. J., Coleridge, Erle and Crompton Js., by Hugh Hill for the plaintiff and Bramwell for the defendant: when, the Court having pointed out that the declaration, as then framed, did not accurately meet the plaintiff's case, Hill elected to amend; and the declaration was remodelled as it appears in the text. 1853. TALLIS V. TALLIS. within the city of London and the counties of Middlesex and Surrey, or any or either of them: That, before and during the copartnership, and also and before and at the time of the date and making of the indenture, an immense number, to wit 500,000, works of divers authors (before the respectives times aforesaid deceased) had been printed and published in England, the copyright in which said works respectively had ceased before and at the respective times above mentioned. That only a very small number of the works above mentioned, in which the copyright had ceased as aforesaid, to wit ten and no more, were printed and published, or reprinted and published, by or on behalf of the said copartnership, or of the plaintiff and defendant, or either of them, before the date and making of the indenture. That, at the time of the date and making of the indenture, it was not likely or probable, nor was there any intention on the part of the plaintiff, that the plaintiff, his executors or administrators, and his and their assigns and successors in the said trade or business, all or any or either of them, would or should, at any time or times thereafter, either alone or jointly with any other person or persons, print or reprint and publish the residue of the works above mentioned, in which the copyright had ceased as aforesaid, or any or either of them, save and except only a very small number, to wit ten. That a large number and proportion of the said residue of the said works, other than and beside what there was any intention or likelihood or probability of being printed or reprinted and published as last aforesaid, to wit one thousand thereof, might have been printed or reprinted and published by defendant with great advantage and benefit to the public and to the subjects and inhabitants of this kingdom, but for the covenant of defendant in the declaration mentioned. That the Canvassing Trade, mentioned in the covenant of defendant, extends and applies to all works and books, whether the author be living or dead, published, by any person or persons whomsoever, in different numbers, parts or divisions, and sold by canvassers or persons employed to go from house to house to solicit and obtain purchasers and customers for the same. That, before and during the copartnership, and at the time of the date and making of the indenture, there were and still are a large number of cities, towns and places, to wit &c., situate and being out of the city of London and the counties of Middlesex and Surrey and each of them, but within the distance of one hundred and fifty miles from the General Post Office in London, within which said cities, towns and places, respectively, the said copartnership had not, nor had the plaintiff and defendant, or either of them, at any time before the date or making of the indenture, used and exercised, or carried on, by themselves or himself, or their or his agents or agent, the trade or business of a publisher, or any department, branch or portion thereof, or the said Canvassing Trade, or any part thereof, or had any depôt or other place for all or any or either of the purposes aforesaid. That, at the time of the making of the said indenture, or at any time afterwards, it was not reasonably necessary for the protection of the plaintiff, in the said trade or business in the declaration mentioned, that the defendant should not at any time, during the remainder of his life, use, exercise or carry on that part of the trade or business of a publisher usually known or distinguished as the Canvassing Trade, with respect to 1853. TALLIS V. TALLIS. |