ADMISSIONS IN PLEADING.

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certain cases, be used as a conclusive admission in another, it can never be used by the opponent as evidence to establish his case on another issue on the same record (1). For instance, if not guilty and a justification be pleaded to a declaration in trespass, the admission of the trespass in the justification will not entitle the plaintiff to a verdict on the plea of not guilty; because, whatever issues are joined upon any counts or pleas are to be tried by the jury distinctly from each other (m). So strict is this rule, that a special plea, held bad on demurrer, cannot be read by the plaintiff at the trial of the general issue, as a direct admission by the defendant of the statements therein contained, though the jury be summoned to assess the damages on the demurrer, as well as to try the cause on the general issue (n); neither can the defendant, under similar circumstances, advert to the plea, and use the demurrer as an indirect admission by the plaintiff of the facts stated in such plea (o). So, where a declaration contained two inconsistent counts, on the second of which the defendant paid money into court, which the plaintiff accepted, it was held that such count, and the proceedings thereon, could not be read to the jury by the defendant as evidence to negative an allegation in the first count (p). It was contended, in that case, that taking the money out of court in satisfaction of the matter in the second count, was an act of the plaintiff apparent on the record, of which the defendant was entitled to avail himself. But the answer given by the Court was, that this part of the pleading was not before the jury (q).

§ 593. There appears to be one exception to this rule, where a verdict has been found on an immaterial issue, and the Court is

(7) Knight v. M'Douall, 12 A. & E. 438, 442, per Patteson, J. As to when it may be used in aggravation or mitigation of damages, see ante, § 254. See also Hyde v. Watts, 12 M. & W. 254, as to when the defects in one pleading may be cured by admissions contained in the pleadings of the adverse party.

(m) Gould v. Oliver, 2 M. & Gr. 234, per Tindal, C. J.; Harington v. Macmorris, 5 Taunt. 228; 1 Marsh. 33, S. C.

(n) Firmin v. Crucifix, 5 C. & P. 98, per Lord Lyndhurst; Montgomery v. Richardson, id. 247, per Lord Tenterden.

(0) Ingram v. Lawson, 2 M. & Rob. 253, per Maule, J.

(p) Gould v. Oliver, 2 M. & Gr. 208; 2 Scott, N. R. 241, S. C.

(2) Id., 2 M. & Gr. 234.

554

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subsequently called upon by the one side to enter up judgment non obstante veredicto, and by the other to grant a repleader. Here, the Court will examine the whole record; and if it appears thereby that the defendant, besides raising the immaterial issue on which the question arises, has pleaded other material matters which have been disposed of on proper issues, and found for the plaintiff, it will award to the plaintiff judgment non obstante veredicto, the reasons for a repleader ceasing (r). Neither will the effect of this exception be neutralised, even though the good pleas do not severally or collectively confess or traverse all the material facts alleged in the declaration; for as a repleader is never granted except where complete justice cannot be answered without it, the Court will not interfere in this manner on behalf of the defendant, where he has already, by raising one or more correct issues, each of which would decide the action, enjoyed all the advantages which either justice or reason demands (s). If, indeed, the plea or replication, traversing an immaterial allegation, stands alone on the record (t); or if, as was the case in Gwynne v. Burnell, a good plea has been pleaded in conjunction with others, but in consequence of the rejoinder departing therefrom, and raising an immaterial issue, the matter involved in such plea has never been tried at all; in either of such cases a repleader will still be awarded (u); unless, perhaps, where the immaterial issue is found against the party who made the first fault in pleading (x).

§ 594. Sixthly, in conformity with the rule that an admission in one plea cannot be prayed in aid of another, because the jury must separately determine the merits of each issue, a new assignment

(r) Negelen v. Mitchell, 7 M. & W. 612, 622; 1 Dowl. N. S. 110, S. C.; overruling Plummer v. Lee, 2 M. & W. 495, as to this point. See also Goodburne v. Bowman, 9 Bing. 532, 542, 543; 2 M. & Scott, 700, 713, S. C.

(s) Gwynne v. Burnell, 6 Bing. N. C. 532, 533, per Parke, B.; Goodburne v. Bowman, 9 Bing. 542, 543, per Tindal, C. J.; compare also the comments of other judges on Goodburne v. Bowman, as reported in Gwynne v. Burnell, 6 Bing. N. C. 472, 509, 518, 520, 481.

(t) Plummer v. Lee, 2 M. & W. 495; Negelen v. Mitchell, 7 M. & W. 622; Gordon v. Ellis, 2 Dowl. & L. 308, 318.

(u) 6 Bing. N. C. 532-534, per Parke, B.; 567, 568, per Lord Brougham. (x) Kempe v. Crews, 1 Lord Raym. 167, explained in Gordon v. Eilis, 2 Dowl. & L. 318, 319, per Tindal, C. J.

ADMISSIONS IN PLEADING.

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does not admit the truth of those matters stated in the plea which it does not pretend to traverse; for, although a distinction for some purposes may very properly be drawn between collateral and continuous pleading, and it may perhaps be contended with truth that a new assignment, to a certain extent, falls within the latter class, yet it is obvious that the plaintiff, by adopting this course of pleading, intends to waive all inquiry respecting the facts stated in the plea, as not applying to the true cause of action. The effect, therefore, of a new assignment is not strictly to admit the truth of these facts, but to withdraw them entirely from consideration, as forming any part of the subject-matter of the action, and thus, on the one hand, to prevent the plaintiff from complaining of them, and, on the other, to preclude the defendant from relying on them in support of the issue raised on the new assignment. They are, in point of fact, to be regarded as if they were struck out of the record, and the true grounds of complaint are to be sought in the explanation of the declaration which the new assignment contains (y). For some purposes, indeed, the matters stated in the plea, and not disputed by the new assignment, will be noticed by the Court; as, for instance, if to an action for assault the defendant justifies, and the plaintiff new assigns another assault on a different occasion, the latter must either prove both assaults, or at least show that the one of which he complains in his new assignment is substantially different from that alleged in the plea; and so, if in an action of trespass quare clausum fregit a justification is pleaded under a right of way, and a trespass extra viam is new assigned, the plaintiff must prove at the trial that such last-named trespass was in fact committed; but in both these cases the proof is required, not so much on account of any admission assumed to have been made by the plaintiff, as because it directly establishes the issue which has been raised by the new assignment (z).

(y) Norman v. Wescombe, 2 M. & W. 349, 360, 361; Dand v. Kingscote, 6 M. & W. 197, per Parke, B.; Brancker v. Molyneux, 1 M. & Gr. 710; 1 Scott, N. R. 553, S. C.; Stephens on Pl. 261.

(2) Darby v. Smith, 2 M. & Rob. 184, per Lord Abinger; Oakley v. Davis, 16 East, 86, per Lord Ellenborough. See Bolton v. Sherman, 2 M. & W. 399, per Parke, B.; Alston v. Mills, 9 A. & E. 248; 1 P. & D. 197, S. C. Robinson to 16M 44.289

a Gruttett

556

ADMISSIONS IN PLEADING-RULE IN EQUITY.

§ 595. Seventhly, although for the purpose of trial before the jury, everything, which is not denied in the particular issue forming the subject of inquiry, is admitted, at least to the qualified extent stated above (a), yet this rule does not apply to cases, where, the issue found being immaterial, the Court have to determine whether they will grant a repleader, or will allow the plaintiff to enter up judgment non obstante veredicto, or the defendant to arrest the judgment (b). Here a distinction prevails between an express admission or a pleading in confession and avoidance on the one hand, and an implied admission from traversing other facts on the other, the latter not being regarded by the Court in the light of an admission at all (c). Thus, it has been held by the House of Lords, in the case of Gwynne v. Burnell (d, that judgment non obstante veredicto can be awarded only on a pleading by the defendant in confession and avoidance, and not on an implied confession in a rejoinder, of that part of a replication which it does not answer; and this seems to lead to the conclusion, that judgment for the plaintiff cannot be arrested on the ground that the traverse of a part of a plea contains an implied confession of the residue. The proper course seems, in both cases, to award a repleader (e).

§ 596. The rule in equity with respect to admissions in pleading is different from that at common law; a demurrer being regarded by courts of equity as simply raising the question of law, without any admission of the truth of the allegations contained in the bill,so that if the demurrer be overruled, an answer may still be put in; and a plea being merely a statement of circumstances sufficient to

(a) Ante, §§ 587, 588.

(b) Gwynne v. Burnell, 6 Bing. N. C. 479, per Coleridge, J.; 505, 506, per Patteson, J.

(c) Per Parke, B., in Atkinson v. Davies, 11 M. & W. 240, 242, explaining Gwynne v. Burnell.

(d) 6 Bing. N. C. 453; 1 Scott, N. R. 711, S. C.

(e) Atkinson v. Davies, 11 M. & W. 236, 242, where the Court explains and adopts the rule of law laid down in Gwynne v. Burnell. These cases overrule the dictum of the Court of Common Pleas, as reported in Rand v. Vaughan, 1 Bing. N. C. 769; 1 Scott, 670, S. C. See also Pitts or Witts v. Polehampton, 3 Salk. 305; 1 Lord Raym. 391, S. C.; Plummer v. Lee, 2 M. & W. 495; 5 Dowl. 755, S. C.; Gordon v. Ellis, 2 Dowl. & L. 308, 318, 319.

I

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show, that, supposing the facts charged to be true, the defendant is not bound to answer. It follows from this state of the law, that in a future action between the same parties, neither the demurrer nor plea can be received in evidence, as amounting to an admission of the facts charged in the bill (ƒ).

$597. Having now discussed the general rules by which admissions in pleading are governed, and having, in a preceding chapter (g), examined at some length what points are put in issue, and what are admitted, by particular pleas, it remains only to notice, in connection with this subject, the effect of paying money into court, of tendering compensation, and of pleading in abatement. Payment of money into court, which must now be pleaded in all cases, but may be pleaded either to the whole or to part only of the plaintiff's claim (h), may be made, as of course, in actions of assumpsit, debt, and covenant for the non-payment of money (i), and, by leave of the Court or a judge, in all personal actions, except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation, or debauching of the plaintiff's daughter or servant (k). Amends may also be paid into court in some of the cases above excepted, under the provisions of particular statutes. For instance, in an action for a libel contained in any public newspaper or other periodical publication, the defendant may plead that the libel was inserted without actual malice, and without gross negligence, and that at the earliest opportunity he had published, or, in some cases, had offered to publish, an ample apology. The defendant may then plead and pay money into court by way of amends, or rather, he must do so, for otherwise the plaintiff may treat the statutable plea as a

(ƒ) Tomkins v. Ashby, M. & M. 32, per Abbott, C. J. See ante, § 519, as to the rule rejecting such verbal admissions, as are not put in issue by the pleadings. (g) Chapter Of Confining Evidence to the Points in Issue, §§ 196–236.

(h) Reg. Gen. T. T. 1 Vict. ; 8 A. & E. 278.

(i) Reg. Gen. H. T. 4 Will. 4, r. 18; 5 B. & Ad. vi. This rule provides, that no rule or judge's order to pay money into court shall be necessary, except under the 3 & 4 Will. 4, c. 42, § 21, but the money shall be paid to the proper officer of each court, who shall give a receipt for the amount in the margin of the plea, and the said sum shall be paid out to the plaintiff on demand."

(k) 3 & 4 Will. 4, c. 42, § 21, as to England; 3 & 4 Vict., c. 105, § 46, as to Ireland.