Mead v. Bashford. PARKE, B. It is quite clear, unless the statute limits the period, that a certificate may be given at any time before costs are taxed. The rule, however, must be discharged, on the ground that part of the rule for a suggestion relating to a stay of proceedings, which is sought to be set aside, is regular and usual. POLLOCK, C. B., ALDERSON and MARTIN, BB., concurred. Rule discharged. MEAD V. BASHFORD.1 Hilary Vacation, February 26, 1851. Pleading-Set-off - Statute of Limitations. Debt. Plea, set-off alleging that the amount due from the plaintiff to the defendant equalled the plaintiff's claim. Replication, as to the plea, so far as it related to 49/. 16s. 10d., parcel, &c., the Statute of Limitations, concluding with a verification, and as to the residue that the plaintiff was not nor is indebted modo et forma: — Held, on special demurrer, that the replication was bad. The proper replication in such case would be, that part of the set-off was barred by the Statute of Limitations, and that the plaintiff was not indebted to the defendant in any sum which (with the part so barred) equalled the amount of his demand. DEBT for goods sold and delivered and upon an account stated. Plea-A set-off, alleging in the usual form that the amount due from the plaintiff to the defendant equals the debt demanded and all damage by the plaintiff sustained by reason of the detention thereof. Replication, as to the plea, so far as it relates to 491. 16s. 10d., parcel of the debt in the declaration demanded, that the supposed debts and causes of set-off in the plea mentioned, so far as the same relate to the said sum of 49l. 16s. 10d., did not, nor did any or either of them, accrue to the defendant at any time within six years next before the commencement of this suit modo et forma. Verification. And as to the plea so far as it relates to the residue of the causes of action in the declaration mentioned, that "the plaintiff was not nor is indebted" modo et forma, concluding to the country. Special demurrer and joinder. Peacock, in support of the demurrer, (May 27, 1850.) The replication is bad, because it neither traverses nor confesses and avoids the plea. It is like the replication in Briscoe v. Hill, 10 Mee. & W.735; s. c. 12 Law J. Rep. (N. s.) Exch. 126, where the plaintiff replied, except as to part of the set-off, he was not indebted at the commencement of the suit and at the time of the plea pleaded; and as to that part, payment thereof into court in a cross action brought by the defendant against him, averring that the defendant had taken it 1 20 Law J. Rep. (N. s.) Exch. 190. Mead v. Bashford. out in satisfaction. This was held a bad replication, and Parke, B., in his judgment said, "On the record, as it now stands, there is no averment on the part of the defendant that the moneys in the plea, exclusive of the sum alleged to have been received in the cross action, are sufficient to meet the plaintiff's demand. The plaintiff has replied as if that fact were alleged in the plea, and, therefore, the replication is bad, inasmuch as there is no affirmative allegation on the one side met by an express negative on the other." The replication as suggested by Parke, B., in Fairthorne v. Donald, 13 Ibid. 424; s. c. 14 Law J. Rep. (N. s.) Exch. 205, should be, as to part, that it was barred by the Statute of Limitations, and that the plaintiff was not indebted to the defendant in any such sum as with that sum equalled or exceeded the amount claimed in the declaration. In that case, to a set-off alleged to exceed the damages in the declaration, the plaintiff replied, as to the causes of set-off, so far as related to 2347. 5s. 3d., parcel, &c., the Statute of Limitations, and that he, the plaintiff, was not nor is indebted to the defendant in the residue, modo et forma, with a prayer of judgment; and the court intimated that the replication was bad. So in Turnbull v. Pell, 2 Exch. Rep. 793; s. c. 18 Law J. Rep. (N. s.) Exch. 45, the defendant having pleaded, by way of set-off, that the plaintiff was indebted to him in 1497. 14s. 6d. upon a judgment, and in 431. 12s. on a promissory note, and in 500l. for work and labor, &c., the plaintiff replied, that he was not nor is indebted, because as to 1497. 14s. 6d. there was no record of the said judgment, concluding with a verification, and that as to the residue other than the said sum of 1497. 14s. 6d., the plaintiff was not indebted to the defendant, concluding to the country, and this replication was amended at the suggestion of the court. There is no complete affirmative and negative on these pleadings. Blakesley v. Smallwood, 8 Q. B. Rep. 538; s. c. 16 Law J. Rep. (N. s.) Q. B. 185. He referred also to 1 Wms. Saund. 338, n. Lush, contra. At present it is impossible to say what the right form of replication is, where there are different answers to different parts of the set-off. A set-off is substantially a counter action, and the defendant is not entitled to the verdict on the plea unless the whole cause of action is covered by it and the other pleas. Tuck v. Tuck, 5 Mee. & W. 109; s. c. 8 Law J. Rep. (N. s.) Exch. 165. Rodgers v. Maw, 15 Ibid. 444; s. c. 16 Law J. Rep. (N. s.) Exch. 137. Suppose a set-off was founded upon two bills of exchange, each equal to the plaintiff's demand, and one was barred by the statute and the other paid: if the Statute of Limitations were alone replied, the plaintiff would be entitled to the verdict. [Alderson, B. Who would have to pay the costs if the Statute of Limitations were replied to part and never indebted to the residue, and the plaintiff succeeded on one and the defendant as to the other?] Each party would recover the costs as to that upon which he succeeded. The defendant should new assign, if he means to insist that the part of the set-off not included in the first replication equals the plaintiff's demand. A replication of the Statute of Limitations is Mead v. Bashford. in confession and avoidance; Gale v. Capern, 1 Ad. & E. 102; s. c. 3 Law J. Rep. (N. s.) K. B. 140; and the defendant here alleges that his demand, recoverable at law, equals the plaintiff's, and the plaintiff denies that the defendant has such equal demand recoverable against him. The defendant does not aver that the residue of his set-off, after that part to which the plaintiff replies the Statute of Limitations, equals the plaintiff's demand. Blakesley v. Smallwood is an authority for the plaintiff. Peacock, in reply. If the defendant is limited by the allegation of equality, then the replication is double, as either answer would destroy the equality. Cur. adv. vult. Judgment was now delivered by ALDERSON, B. This case was argued a very long while ago. It has been delayed in consequence of a difference of opinion amongst the judges, which has not altogether been removed even at the present moment. The question was whether the replication was good on special demurrer. The gist of the plea of set-off is, that the plaintiff is indebted to the defendant in a sum equal at least to that which he is seeking to recover in this action. The plaintiff in his replication endeavors to meet this plea by dividing his demand (not the set-off) into two parts. As to 49l. 16s. 10d., part of his demand, the plaintiff says that the set-off, so far as relates to that sum, that is, to that portion of his demand, is barred by the Statute of Limitations; and so far as relates to the residue of his demand, the plaintiff says he is not indebted modo et forma. Now, in the first place, though that part of the replication which insists on the statute purports to give an answer to the set-off only so far as relates to 49l. 16s. 10d., part of the plaintiff's demand, yet, what is asserted is, that the causes of set-off are barred by the statute; and if this be so, that part of the replication, though purporting to be replied only to 49l. 16s. 10d., is, in truth, a replication to the whole plea; for, if the causes of set-off are barred by the statute so as not to be an answer to the plaintiff's demand of 497. 16s. 10d., so neither can they be to the rest of his claim. But, suppose this objection to be got over, and that the replication should be read as if it had been a statement that as to 491. 16s. 10d., parcel of the plaintiff's demand, the causes of set-off to a like amount are barred by the statute, this is obviously no answer at all to the defendant. It may be that items to that amount may be barred by the statute, and yet there may remain a set-off not barred sufficient to equal the plaintiff's demand which may be established by the proof. The only course open to the defendant on this replication, supposing his set-off to consist of sums not barred by the statute equal to the plaintiff's demand, and also of sums to the amount of 49l. 16s. 10d., barred by the statute, would be, that he should rejoin by stating, in the nature of a new assignment, (which, perhaps, considering the peculiar nature of a plea of set-off, might, if justice required it, be allowed,) that the sums he intended to set Mead v. Bashford. off against the 49l. 16s. 10d., parcel of the plaintiff's demand, were other and different from the sums barred by the statute. But, even if such a rejoinder would not be bad, as being a departure from the plea, or on any other ground, still the plaintiff has no right by such a replication to drive the defendant to take issue on matters which may be immaterial and which were not stated in the plea. What the defendant undertook to prove was, that his cross demand in its integrity equalled the plaintiff's whole claim when proved, not that he had particular matters of set-off against particular parts of the plaintiff's original demand. The course of pleading attempted by the plaintiff leads to this anomaly, that though there are two issues to be tried, each going only to a part of the cause of action, namely, first, whether there is a good set-off to part of the cause of action arbitrarily selected by the plaintiff in his replication, and secondly, whether there is a good set-off to the residue; yet, if either of these issues is disposed of in favor of the plaintiff, it entitles him to judgment on the whole plea and the whole cause of action, and makes the result of the issue as to the other part wholly immaterial. This is clearly anomalous and bad. The proper course for the plaintiff to have followed in this case is pointed out by my brother Parke, in Fairthorne v. Donald. He should have replied, that part of the subject matter of the set-off was barred by the statute, and that he is not indebted to the defendant in any sum which (with the part so barred) equals the amount of his demand. On pleadings so constructed, the defendant would have been bound to support his defence by showing a set-off not barred by the statute, and which should equal or exceed the plaintiff's demand, which might be established by the proof. This is precisely what the plea bound him to prove, and no more. With respect to the case of Blakesley v. Smallwood, it may be observed the court there proceeded on the ground that the plaintiff had improperly concluded what was in fact a mere traverse with a verification. The replication there did not, as it does here, attempt to divide the causes of action, but only the causes of set-off, into two parts; and the court there cautiously abstained from saying that the replication would have been bad if it had contained proper conclusions to its different parts. If the plaintiff chooses to amend on the usual terms, we think he should be at liberty to do so; but otherwise, the judgment of my brother Platt differing in this respect from that of my brother Parke and myself, who are the majority of the court, we think the judgment should be for the defendant. Judgment accordingly. Ellen v. Topp. ELLEN V. TOPP.1 Easter Term, April 15, 1851. Apprentice-Indenture - Dependent Covenants. to By an indenture of apprenticeship, an infant, with the consent of his father, put himself apprentice to a person therein described as "an auctioneer, appraiser, and corn-factor," learn his art and with him after the manner of an apprentice to serve" for a specified period. The father was party to the indenture, and entered into the usual covenants for the performance of its terms by the apprentice : Held, that the fact of the master's having, during the continuance of the apprenticeship, relinquished the trade of corn-factor, was an answer to an action of covenant brought by him against the father for a desertion of his service by the apprentice; and this, though the father had by parol consented to the discontinuance of that trade, and allowed the son to continue to serve after it. Sed semble, that if the apprentice had served the whole period agreed on, and had the benefit of instruction as such in two of the trades, it would be no answer to an action by the master for the apprentice fee, that he had during the apprenticeship discontinued the third trade. THIS was an action of covenant on an indenture of apprenticeship, bearing date the 21st of July, 1846, whereby Richard Topp, an infant of the age of sixteen years or thereabouts, by and with the consent of his father, the defendant, put himself apprentice to the plaintiff, therein described as an auctioneer, appraiser, and corn-factor, to learn his art, and with him after the manner of an apprentice to serve from the 1st of July, 1846, for the term of five years. There was an apprenticeship fee of 701. The indenture was in the usual form, with the usual covenants, concluding thus: "And for the true performance of all and every the said covenants and agreements, either of the said parties bindeth himself unto the other by these presents." The declaration alleged that by virtue of the said indenture, Richard Topp entered and was received into the service of the plaintiff as such an apprentice; and assigned as a breach that "the said Richard Topp did not nor would faithfully serve the plaintiff according to the tenor and effect, true intent and meaning of the said indenture, but on the contrary thereof the said Richard Topp during the said term of five years, &c., to wit, on the 22d of July, 1849, did unlawfully absent himself from the service of the plaintiff, and hath from thence hitherto remained and continued absent from the service of the plaintiff, contrary to the tenor and effect of the said indenture and of the said covenant of the defendant, &c., to the damage, &c." To this declaration the defendant (after setting out the deed on oyer) pleaded, that the plaintiff, at the time of the making and executing of the said indenture, exercised the art and carried on the business of an auctioneer, appraiser, and corn-factor, and that the apprenticeship and covenants aforesaid were made with the plaintiff as such auctioneer, appraiser, and corn-factor, and not otherwise, and that after the making of the indenture, and before the accruing of the 'cause of action, to wit, on the 16th of June, 1848, 1 15 Jur. 451. |