the other pleas of the defendant, and in this case he will not be entitled to tax his costs (Cauty v. Gill, 4 M. & G. 907), until the determination of the action; when he will be entitled in any event to the costs in respect of the claim so satisfied (R. G., H. T. 1853, r. 12). Where in an action for work and labour, after issue joined, part of the money claimed was paid into court, but the plaintiff continued the action for the residue, and failed at the trial, it was held that he was not entitled to the costs of the brief (Harold v. Smith, ubi supra). The defendant is only entitled to costs where there is a nolle prosequi as to part; or where he is successful either upon other issues, or upon a replication of damages ultra. As to costs of issues generally, see s. 81. 74. Whereas certain causes of action may be considered to partake of the character both of breaches of contract and of wrongs, and doubts may arise as to the form of pleas in such actions, and it is expedient to preclude such doubts: any plea which shall be good in substance shall not be objectionable on the ground of its treating the declaration either as framed for a breach of contract, or for a wrong. set-off and other pleadings which can be construed dis 75. Pleas of payment and set-off, and all other Payment, pleadings capable of being construed distributively, shall be taken distributively, and if issue is taken thereon, and so much thereof as shall be sufficient answer to part of the causes of actions proved shall be found true by the jury, a verdict shall pass for the defendant in respect of so much of the causes of action as shall be answered, and the plaintiff in respect of so much of the causes of action as shall not be so answered. To have entitled a defendant to a verdict on a plea of payment of a sum certain, he must have proved payment of the whole sum (Cousins v. Paddon, 2 C. M. & R. 547). So, on a plea of setoff, the plaintiff was entitled to a verdict, unless the defendant proved a set-off, equalling the whole of the plaintiff's aggregate demand. The plea of set-off was not divisible (Moore v. Butlin, 7 A. & E. 595); but it was available (if it did not meet the whole demand) in reduction of damages (Tuck v. Tuck, 5 M. & W. 109; Rogers v. Maw, 15 M. & W. 444). "Pleadings," here means pleadings generally, and includes declarations; and the enactment applies to pleadings in all actions. See instances of verdicts entered, under the old practice, distributively in trespass, where a right of way was pleaded (Knight v. Moore, 5 Dowl. 201); in trespass qu. el. fr. (Phythian v. White, 1 M. & W. 216); in case (Giles v. Groves, 12 Q. B. 721). The effect of this enactment is, that pleas of payment and setoff, and all other pleadings capable of being construed distributively, are so construed; and the costs of the defendant, for instance, proving his part of the issue, is set off against, or deducted from the costs of the plaintiff in maintaining the part found for him, as was formerly done under R., H. T., 2 Will. 4, tributively construed. shall be so Traverse of the declara tion. Traverse of plea or subsequent pleading of defendant. Traverse of r. 74. (See Treherne v. Gardner, 8 E. & B. 161; and Reynolds v. Harris, L. J. 28, C. P. 26 (in which latter, Biddulph v. Chamberlayne (17 Q. B. 351) is impeached); also Davis v. Thomas, 5 Jur. N. S. 709, C. P.) It has been held (Wilkinson v. Kirby, 15 C. B. 439) that this section does not render a plea of "not possessed" in an action of trespass for mesne profits, distributable; and it has also been held (Gabriel v. Dresser, 15 C. B. 622) that part performance of an agreement, by way of accord and satisfaction of a whole cause of action, could not be pleaded distributively; (see upon this Blagrave v. Bristol Waterworks Company, 1 H. & N. 369; and Cooper v. Parker, 15 C. B. 822). On the other hand, a plea of “not possessed" in trover has been held distributable (Freshney v. Wells, L. J. 26, Ex. 228). The general issue "never indebted" has been held distributable (Treherne v. Gardner, supra; see also Chappell v. Davidson, 18 C. B. 194; with Blagrave v. Bristol Waterworks Company, supra; also Lyne v. Siesfield, 1 H. & N. 278; Parr v. Jewell, 16 C. B. 684; and Bennett v. Thompson, 4 W. R. 594, Q. B.) See also sections 81 and 223, and notes, post. 76. A defendant may either traverse generally such of the facts contained in the declaration as might have been denied by one plea, or may select and traverse separately any material allegation in the declaration, although it might have been included in a general traverse. But a defendant ought not to traverse vexatiously every allegation open to a traverse. See observations of Lord Campbell in Cooling v. Great Northern Railway Company (12 Q. B. 485); and South-Eastern Company v. Hibblewhite (12 A. & E. 447). 77. A plaintiff shall be at liberty to traverse the whole of any plead or subsequent pleading of the defendant by a general denial, or, admitting some part or parts thereof, to deny all the rest, or to deny any one or more allegations. The plaintiff may join issue, 1st, generally, under s. 79; or, 2ndly, admitting part of a plea, deny the rest [as for instance, now that the plea of set-off is distributive (s. 75), instead of taking issue, plead the Statute of Limitations to one part, and deny the rest]; or 3rdly, traverse any one or more of the allegations of the plea. But this section does not dispense with a new assignment where it would previously have been necessary (Glover v. Dixon, 9 Exch. 157). Quare, whether this and the two following sections apply to a traverse by a plaintiff in replevin (see Trent v. Hunt, 9 Exch. 14; and C. L. P. A. 1860, s. 22, n., post). 78. A defendant shall be at liberty in like manner replication or to deny the whole or part of a replication or subsequent pleading of the plaintiff. subsequent pleading of the plaintiff. See section 77, n. The defendant was formerly ruled to rejoin in the same way as a plaintiff was ruled to reply; but this rule is abolished (s. 53), and the plaintiff must give the defendant a notice to rejoin in the same way as he gives a notice to plead (s. 62). A demand of a rejoinder is not necessary. The notice may be endorsed on the replication, or delivered separately (s. 53). issue. 79. Either party may plead, in answer to the plea Joinder of or subsequent pleading of his adversary, that he joins issue thereon, which joinder of issue may be as follows, or to the like effect: "The plaintiff joins issue upon the defendant's 1st [c., specifying what or what part] plea:" "The defendant joins issue upon the plaintiff's replication to the 1st [c., specifying what] plea:" and such form of joinder of issue shall be deemed to be a denial of the substance of the plea or other subsequent pleading, and an issue thereon; and in all cases where the plaintiff's pleading is in denial of the pleading of the defendant, or some part of it, the plaintiff may add a joinder of issue for the defendant.* See section 77, n. The joinder of issue, if separately pleaded, must comply with the provisions of s. 54. The defendant may strike out the joinder of issue, and plead or demur to the plaintiff's last pleading, within four days. If he does so, the practice is for him to give notice thereof to the plaintiff. The joinder of issue added by the plaintiff is generally added in cases where he at once makes up and delivers the issue, with a notice of trial endorsed. If the joinder in issue in such case is struck out, the plaintiff cannot proceed to trial. If the defendant does not plead within due time, the plaintiff's course is to sign judgment (Twycross v. King, 6 Q. B. 663). Notice of striking out similiter. murring 80. Either party may, by leave of the court or a As to plead judge, plead and demur to the same pleading at the ing and desame time, upon an affidavit by such party, or his together. attorney, if required by the court or judge, to the effect that he is advised and believes that he has just ground to traverse the several matters proposed to be traversed by him, and that the several matters sought to be pleaded as aforesaid by way of confession and avoidance are respectively true in substance and in fact, and that he is further advised and believes that the objections raised by such demurrer are good and valid objections in law; and it shall be in the dis * In Schedule A. [Replication], the form given is that the plaintiff "takes issue," &c.: strictly speaking, a party joins issue upon a traverse, and takes issue upon an affirmative pleading. Several mat ters may be pleaded at the plead ings. cretion of the court or a judge to direct which issue shall be first disposed of. The granting leave is quite in the discretion of the court or judge (Thompson v. Knowles, L. J. 24, Ex. 43). The direction as to which issue shall be first disposed of, should be part of the order. It still continues the privilege of the plaintiff, subject to the direction of the court, to select which issue shall be first decided (Crucknell v. Trueman, 9 M. & W. 684). Where a defendant had pleaded and demurred, and the demurrer had been determined against him; the trial of the issues of fact were allowed, upon his application, to stand over until after the demurrer was finally disposed of in the court of error, the court being of opinion that this section applied only to the disposing of the issue by the court in which it is first raised (Lumley v. Gye, L. J. 22, Q. B. 463). In cases where the demurrer goes to the whole cause of action, the demurrer should be first argued; but that this may be done, the defendant should, it would appear, have the consent of the plaintiff, or a judge's order. The court refused to compel a defendant, successful on demurrer, to enter a judgment of nil capiat, so as to enable the plaintiff to bring error without trying the issues in fact ( Hinton v. Acraman, 3 C. B. 737). Whether this and the following sections applied to replevin and to real actions, is now of little importance (C. L. P. A. 1860, s. 22, n., and s. 27, post); the cases upon this doubtful matter are collected in Marshall v. Bishop af Exeter, L. J. 28, C. P. 300; see also Reg. v. Seale, 5 E. & B. 1. 81. The plaintiff in any action may, by leave of the court or a judge, plead in answer to the plea, or the any stage of subsequent pleading of the defendant, as many several matters as he shall think necessary to sustain his action; and the defendant in any action may, by leave of the court or a judge, plead in answer to the declaration, or other subsequent pleading of the plaintiff, as many several matters as he shall think necessary for his defence, upon an affidavit of the party making such application or his attorney, if required by the court or judge, to the effect that he is advised and believes that he has just ground to traverse the several matters proposed to be traversed by him, and that the several matters sought to be pleaded as aforesaid by way of confession and avoidance are respectively true in substance and in fact; provided that the costs of any issue, either of fact or law, shall follow the finding or judgment upon such issue, and be adjudged to the successful party, whatever may be the result of the other issue or issues. "Several matters" here means distinct answers or defences; see also Pl. R., T. T. 1853, rr. 2, 3. The plaintiff in order to reply, or the defendant in order to plead several matters, always requires a judge's order, which is to be obtained on a summons, accompanied by an abstract of the intended replications or pleas. As to the costs upon several issues, see R. G., H. T. 1853, r. 62, also Reynolds v. Harris, L. J. 28, C. P. 26, and cases there cited. As to the time within which the plaintiff must reply, see s. 53, n. The pleas which may be pleaded by the defendant, without leave, are enumerated in s. 84. Leave for the plaintiff to reply, or for the defendant to plead several matters is not necessary, where the pleas taken altogether constitute but one answer to the preceding pleading (Archer v. Garrard, 6 Dowl. 132). The 4 & 5 Anne did not bind the Crown (Att.-Gen. v. Donaldson, 9 Dowl. 319), neither do the words of this section. When leave to plead seve may be re ral matters Leave will be refused to plead pleas grossly inconsistent with each other (Thomson v. Jackson, 9 Dowl. 591), or vexatiously inconsistent (Steel v. Sturry, Dowl. 133; Cooling v. Great Northern Railway Company, 15 Q. B. 485): though pleas merely inconsistent fused. are not objectionable (Wilkinson v. Small, 3 Dowl. 564). A plea that is absurd will be disallowed (Goodman v. Morrell, 1 Dowl. N. S. 383); so will one that tenders an immaterial issue (Murray v. Bomber, 6 Dowl. 537); or one that is clearly bad (Lafond v. Raddock [rejoinder], L. J. 22, C. P. 217; Cassner v. Minchner, 13 M. & W. 704); or pleas that only raise a point a second time upon the same pleadings (Jenkins v. Creech, 5 Dowl. 293; Dawson v. M'Donald, 2 M. & W. 26); or one that is not a substantial plea to the action (South-Eastern Railway Company v. Hebblewhite, 12 A. & E. 447; and Needham v. Law, 1 Dowl. N. S. 1027, where a traverse of the defendant's being a public registered officer of a company was not allowed to be pleaded with pleas to the merits). But as to this last case, see Roe v. Fuller (L. J. 20, Ex. 104). See generally upon this subject, Ch. Pr. 10th ed. pp. 255-268, where numerous cases of pleas allowed and disallowed are collected. The affidavit, if made by the party, should state that he is advised and believes; if by the attorney, it should state that he is informed or instructed, and is advised and believes (Rowbotham v. Dupree, 1 Dowl. 537; Schoffield v. Huggins, 3 Dowl. 427). See as to sufficiency of affidavit, Platt v. Elce, 8 Exch. 364, explaining Lumley v. Gye, L. J. 22, Ex. 9. When the pleas delivered do not substantially correspond with those for which leave has been given, the plaintiff may sign judgment (Hills v. Haymen, 2 Exch. 323; Bailey v. Baker, 9 M. & W. 769; Gabardi v. Harmer, 3 Exch. 239; Harvey v. Hamilton, 4 Exch. 43; Wills v. Robinson, 5 Exch. 302; and s. 86, post); but the defendant may ordinarily abandon any of the pleas that he has obtained leave to plead. The plaintiff may also sign judgment, if a plea, though allowed by a judge, is not issuable (Capner v. Minchner, 13 M. & W. 704). As to costs, see Bentley v. Dawes, 10 Exch. 347; S. C. L. J. 23, Ex. 280; Abley v. Dale, 11 C. B. 889; and Dunston v. Paterson, 4 C. B., N. S. 279). See ss. 84, 88, post. 82. No rule of court for leave to plead several matters shall be necessary where a judge's order has been made for the same purpose. Affidavit of truth of pleadings. Judge's order ral matters to plead seve sufficient. |