1851. STORY v. FINNIS. appears to me to be applicable to the present. It was an action of trover; and the defendant pleaded payment into court, as here; and my brother Patteson held that, as the declaration was general, the defendant was bound to shew what goods the defendant had converted; and that, in estimating the damages, the jury were bound to look at the actual number of the goods converted.]-They also contended that there was independent evidence sufficient to support the action. Cur. adv. vult. POLLOCK, C. B., now said.-In this case we are all of opinion that the rule ought to be discharged. The point chiefly made on the argument was, that the payment of money into court was an admission of the plaintiff's right of action; that it consequently admitted the pound breach or rescue by the defendants or their officers; and that therefore it was a mere question at the trial what was the amount of damage. We are all clearly of opinion, that the payment of money into court, in the case of a tort, is not similar to the payment of money into court in the case of a special contract. It has long since been settled that the payment of money into court on a general indebitatus count really admits nothing more than that a cause of action exists, with damage to the extent of the amount paid into court; and we think the same principle applies to the case of a wrong. This opinion was intimated during the course of the argument by the Court; and we are all agreed that this is the true result of the payment of money into court in an action for a wrong. But it was suggested and contended further (although the principal ground of argument was undoubtedly that which we have just stated and disposed of), that there was evidence to go to the jury that Willis, the officer of the sheriff, had been guilty of a pound breach or rescue, the result of which would be a damage greater than that paid into court; and it was contended that the fault was that of the sheriff. Now, without at all entering into the question whether the sheriff would be liable (as to which there is a very strong opinion, I believe, in the majority of the Court, that he would be liable even in this case), on looking over the notes, we are all of opinion there is no evidence that would have justified a verdict against the sheriff, on the ground that Willis had been guilty of either a rescue or a pound breach; for in reality the only evidence given on the part of the plaintiff was, that Willis had not allowed the goods to go, but he had ordered them back; and the evidence on the part of the defendants was, that they had not removed them at all, but that the goods had remained. We are therefore of opinion that the rule must be discharged. Rule discharged. 1851. STORY v. FINNIS. THE STOCKTON AND DARLINGTON RAILWAY COMPANY v. Fox. J. ADDISON had obtained a rule in this case, calling upon the defendant to shew cause why he should not pay the plaintiffs the costs occasioned by the postponement of the cause. Jan. 29. Where a cause set down for trial in London or Middle sex is stayed by injunction, the plaintiff is at liberty to try upon the injunction being dissolved, set without any The It appeared that the action was commenced on the 17th of April, 1848; that issue was joined and notice of trial was given on the 3rd of June; and that the cause was down for the Sittings in London after Trinity Term. cause was subsequently made a remanet by consent until the Sittings after the following Michaelmas Term; and on the 22nd of December, being the day appointed for the trial, it was further postponed by consent to the Sittings after Hilary Term, 1849. On the 18th of December, the defendant filed a bill for an injunction to stay the action; and on the 3rd of January, 1849, he obtained the common order for want of answer. The Marshal thereupon in fresh notice of trial, although several terms have elapsed since the day on which the otherwise have cause would been tried. 1851. STOCKTON AND v. Fox. dorsed the following memorandum upon the record, "Stayed by injunction." On the 11th of April, 1849, the plaintiffs filed their answer to the bill, and upon the 7th of August, 1850, the injunction was dissolved; but the order was not drawn up until the 9th of November, when the plaintiffs' attorney gave notice of the order to the Marshal. On the 29th of November, a letter was written by the plaintiffs' attorney to the defendant's attorney, stating, that the cause would be taken as a remanet at the Sittings after the following Michaelmas Term; but it was conceded on the part of the plaintiffs, that this letter could not be considered as equivalent to a proper notice of trial, if fresh notice was necessary. Upon the cause being called on in its order, it was objected on the part of the defendant that he had not received any due notice of trial, and therefore that the cause ought not to be proceeded with at that time. The Lord Chief Baron therefore made an order for the postponement of the trial until the Sittings after Hilary Term, 1851, on payment by the defendant of the costs occasioned by such postponement, if the Court should be of opinion that a fresh notice of trial was unnecessary. Sir F. Thesiger and T. Jones now shewed cause. It is contended that, under the circumstances of the case, the defendant was entitled to a fresh notice of trial. It is laid down in Chitty's Archbold's Practice, 8th edit. p. 290, that "notice of trial must be given in all cases where there is an issue to be tried by a jury, except where a cause is made a remanet from one Sittings to another, or put off by order of Nisi Prius, when a fresh notice of trial is not necessary:" but the work proceeds to state that a fresh notice is necessary where the trial is put off by rule of Court from one term to another: Jacks v. Mayer (a). In the cases where the cause is postponed by order of Nisi Prius, or where it is made a remanet, the defendant is apprised of the time when the (a) 8 T. R. 245. cases. cause will come on; but, in the case of an injunction, which may be dissolved at any time, he is liable to be taken by surprise. That seems to be the distinction between the Where a cause is made a remanet at the assizes, a fresh notice of trial is necessary: Gains v. Bilson (a); and here the defendant might be subjected to much inconvenience, since the delay caused by an injunction may be greater than that occasioned by the postponement of the cause from one assize to another. [Pollock, C. B.-There is this obvious distinction between the case of a cause being made a remanet on circuit and in town; here the same Court sits, but each assize is held under a fresh commission.] In Bosworth v. Phillips (b), the decision, that a term's notice is not necessary to revive proceedings against a defendant who has stayed them by injunction, seems to imply that the ordinary notice of trial must be given. [Parke, B.— I do not think that that case is subject to such an inference.] Shee, Serjt., and J. Addison, who appeared in support of the rule, were not called upon. POLLOCK, C. B.-We think a fresh notice of trial was not necessary. The rule must therefore be absolute. PARKE, B.-The injunction was obtained by the defendant, for his own benefit; and so long as it remained in force, the proceedings were stayed; but when it was dissolved, the parties were in statu quo, and the plaintiffs were at liberty to proceed with the action. ALDERSON, B., and MARTIN, B., concurred. (a) 4 Bing 414. Rule absolute. (b) 2 W. Bl. 784. 1851. STOCKTON AND RAILWAY Co. Fox. VOL. VI. K EXCH. 1851. Jan. 20. To an action of assumpsit upon a guarantee, the defendant pleaded that the promise declared on was a special promise for the debt of an other; and that no agreement READE U. LAMB. ASSUMPSIT upon a guarantee. The declaration stated that, in consideration that the plaintiff would, at the defendant's request, lend and advance to one Lewis Le Page the sum of 507, the defendant promised the plaintiff repayment thereof on a certain day. Averments: that the plaintiff did advance the sum of 50l.; that the period for repayment had elapsed, but that the defendant had not repaid the plaintiff. Plea, under the 4th section of the Statute of Frauds, that the promise in the declaration alleged was a special promise for the debt of another person, and that no agreement in respect thereof, nor any memorandum or note thereof in writing, was signed by the defendant. Special demurrer, alleging for cause that the special demur plea was an argumentative denial of the contract or promise alleged in the declaration, and amounted to the general issue. Joinder in demurrer. in respect thereof, nor any memorandum or note thereof in writing, was signed by the defendant:Held bad, on rer, as amount ing to an argumentative denial of the contract or promise alleg. ed in the declaration. Rodwell in support of the demurrer.-The plea is clearly bad, for the reasons assigned on special demurrer. The case of Leaf v. Tuton (a) is a decisive authority in the plaintiff's favour. It was there held that a defence under the 17th section of the Statute of Frauds cannot with impunity be made the subject of a special plea, inasmuch as such a defence may be given in evidence under the plea which denies the contract or promise alleged. In Buttemere v. Hayes (b), it was also held that a defence under the 4th section, as in the present case, is admissible in evidence under the general issue. Those cases are, therefore, decisive of the present question. In Maggs v. Ames (c), a plea similar to the present was held good; but that case cannot be considered as a binding authority since the later (a) 10 M. & W. 393. (b) 5 M. & W. 456. (c) 4 Bing. 490. |