sense. For the language of the two following sections shews that they are not so to be construed. The 12th section speaks of such action and of such county court; and the 13th section makes the matter still clearer, for it enacts, that the plaintiff in any such action may recover his costs, if he shall make it appear to the Court or a Judge that the action was brought for a cause in which concurrent jurisdiction is given to the superior Courts by the 128th section of the 9 & 10 Vict. c. 95, or for which no plaint could have been entered in any such county court. [Martin, B. --The plaintiff may contend that he is absolutely entitled to his costs.] Even if he were not, he may yet apply to a Judge at chambers, and obtain from him a certificate for his costs. The defendant, therefore, ought to be permitted to place this suggestion upon the record; and the plaintiff may, if he pleases, raise the question by demurrer. PER CURIAM (a).-The rule must be absolute, valeat quantum. Rule absolute. (a) Pollock, C. B., Alderson, B., Platt, B., and Martin, B. 1851. HEWITT v. PATERSON. 1851. June 17. To an action of trover for the conversion of certain cattle, the defendant pleaded that the conversion in the declaration mentioned was the sale of the cattle by the defendant, after they had been been seized by him KEY V. THIMBLEBY. TROVER for the conversion of three cows and two calves. Plea, "that the conversion in the declaration mentioned was the sale of the said cattle by the defendant after he had seized and impounded the same as surveyor of the highways in the parish of East Kirkley, in the county of Lincoln, according to the statute in that case made and provided; and that the plaintiff ought not further to maintain his action in respect of the said conversion, because the defendant now brings into Court the sum of 10%, ready to be paid to the plaintiff; and the defendant further saith, that the plaintiff hath not sustained damages to a greater amount than the sum of 10l. in respect of the said coninto Court, with version."_Verification and prayer of judgment.—Special demurrer and joinder. as surveyor of certain highways. The plea concluded by payment of the sum of 10l. the usual aver ment of no da mages ultra:Held, on special demurrer, that the plea was bad, as being an unauthorised alter cation of the Court given by the rule of Trin. T. 1 Vict. The case was argued in last Easter Term (May 2) by Bramwell in support of the demurrer. The plea is bad. ation and appli- It is a novel attempt to adopt an inapplicable form of plea, form of payment which is given by the New Rules: Reg. Gen. Trin. Term, of money into 1 Vict. The form of application there given shews that this form of plea cannot be sustained, for it does not provide for the case where a plaintiff may be driven to a new assignment. Under the form given by the rule, the plaintiff may accept the money paid into Court "in full satisfaction and discharge of the cause of action in respect of which it has been paid in," or he may reply damages ultra. What becomes of the 10l. paid into Court if the plaintiff rests his action upon another and different conversion to that to which the plea is directed? If a part of the cattle mentioned in the plea were in truth converted as therein alleged, and another part were converted on another and different occasion, the plaintiff has no means of safely replying to the plea. The defendant cannot confine the plaintiff's cause of action by the present form of plea. If there have been several conversions, and the defendant is uncertain upon which the plaintiff is proceeding, his proper course is by application at chambers for particulars, which are always granted upon the requisite affidavit. The only Crompton contrà.—The defendant may lose his right of placing this defence upon the record, if this plea be not allowed. The plea of payment of money into Court is to be varied, "as near as may be," to meet the particular case: Lowe v. Steele (a), Tattersall v. Parkinson (b). other course suggested as open to the defendant, is by an application for particulars, which might be refused. In the simple case of payment, a plea may well limit the plaintiff's cause of action: Wheeler v. Senior (c), Heydon v. Thompson (d). Where the plea is general, as it was in Freeman v. Crafts (e) and James v. Lingham (ƒ), the plaintiff need not new assign. But it is objected that, if the plaintiff were to new assign, the New Rules do not provide for the application of the 10l. The loss, if any, would fall upon the defendant. Perhaps he might obtain repayment of that sum by application to a Judge at chambers, or it might remain in Court to abide the event of the trial. In Rogers v. Custance (g), there is a plea of payment before action like the present; and it is difficult to see any good reason why the defendant should not be at liberty to adopt a form of the same description in paying money into Court. Bramwell in reply.-The form of plea is to be varied in those cases only where it is applicable. The cases shew that the plaintiff would be bound to new assign, if he proceeded for a conversion other than that set forth in the plea. But the form of replication given by the rule of (a) 15 M. & W. 380. (e) 4 M. & W. 4. (g) 1 Q. B. 77. 1851. KEY v. THIMBLEBY. 1851. KEY V. THIMBLEBY. Court does not contemplate that mode of pleading. The defendant ought to have pleaded to such conversion those matters which afforded him a good defence, and, in case the plaintiff had new assigned, he might then have pleaded this payment into Court to the new assignment. Cur. adv. vult. The judgment of the Court was now delivered by POLLOCK, C. B., (after stating the pleadings, his Lordship proceeded):-We are of opinion that the plea is not warranted by the New Rules upon which it depends, and is therefore bad. The plea of payment of money into Court was given by the New Rules as a substitute for the supposed more expensive mode of paying money into Court by a rule to strike the sum out of the damages (which rule it was always necessary to prove at the trial), and this plea being on the record proves itself. It is not governed by the ordinary rules of pleading, for in actions of debt it denies in part the cause of action, but does not confess and avoid. In assumpsit and tort it does not deny nor confess and avoid; and it appears to be more analogous to a judgment by default with an averment of the amount of damages than to a common plea. The form given by the New Pleading Rules allows, no doubt, of changes to adapt it to the facts of each case, as, for instance, where it is pleaded to part, or, in debt, to the damages as well as the debt, but no further. We have already held, that the special character of the defendant was not required to be stated. The meaning of the terms "as near as may be" in the Rules is only to authorise alterations to adapt the plea to the names of parties, the sum paid, and the like: Aston v. Perkes (a). We are satisfied that it never was intended to admit such a variation as (a) 15 M. & W. 385. is attempted in this case, which would lead to long and embarrassing pleadings. According to the New Rules, the plaintiff is at liberty either to take the money out of Court with his costs, or to reply damages ultrà. They do not contemplate any other replication; and no plea is therefore contemplated, except one which would lead to one of these results, whereas this may lead to a new assignment and pleadings thereon. In such a case, what is to become of the 107.? The plaintiff is not to have it, and the New Rules do not provide for its being paid back,—another reason for supposing that no such plea as this was intended by them. It is very true, that it may probably be had back on summons before a Judge, so that the defendant would not lose the money; but the argument arising from the want of a provision for such a contingency in the New Rules is the same. Further, if the case be, that the plaintiff is proceeding for the conversion of part of the cattle by the sale, and, as to the remainder, for some other conversion, how is he to reply? How much is he to ascribe to one cause of action, and how much to another? And how can he tell whether enough is paid into Court to satisfy the damages for which he is really proceeding? Besides, this plea introduces what we believe is a perfect novelty in pleading, by making the defendant directly aver what the plaintiff's cause of action is, which presumably he cannot know. When the defendant supposes the cause of action to be one to which he has a defence, he pleads by confessing and avoiding it, and concludes usually, though always unnecessarily, with a quæ sunt eadem; for where the justification depends upon a temporary defence applying to a day different from that in the declaration, the defendant may either conclude with that averment or traverse all other days: 2 Wms. Saund. 5. 6. The plaintiff must new assign if he cannot deny the truth of the plea. But if such an averment as this were allowed, 1851. KEY v. THIMBLEBY. |