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Traverse of

tion.

accompanied by the creation of a new cumulative traverse, to which many of the objections urged against the old general issue will still apply. The following are the enactments upon this subject.

76. 66 A defendant may either traverse generally such the declara- 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."

Traverse of

plea or sub

sequent pleading of the defend

ant.

Traverse of replication or subse

quent plead ing of the plaintiff.

Joinder of issue.

66

77. A plaintiff shall be at liberty to traverse the whole of any plea 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."

78. "A defendant shall be at liberty in like manner to deny the whole or part of a replication, or subsequent pleading of the plaintiff."

79. Either party may plead, in answer to the plea 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.

It will be, no doubt, the subject of a decision whether the admission here mentioned is to be an express admission, as was done when de injuriâ absque residuo cause was pleaded, or a tacit admission by not denying the averments in the previous pleading. The rule as to the effect of admissions by pleadings was recently laid down in Boileau v. Rutlin (2 Exch. 665) as follows: "Pleadings at common law are not to be treated in pleading. as positive allegations of the truth of the facts therein for all

Admissions

purposes, but only as statements of the case of the party, to be admitted or denied by the opposite side, and, if denied, to be proved, and ultimately submitted for judicial decision. The facts actually decided by an issue in any suit cannot be again litigated between the same parties, and are evidence between them, and that conclusive, upon a different principle, and for the purpose of terminating litigation; and so are the material

facts alleged by one party, which are directly admitted by the opposite party, or indirectly admitted by taking a traverse on some other facts, but only if the traverse is found against the party making it. But the statements of a party in a declaration or plea, though, for the purposes of the cause he is bound by those that are material, and the evidence must be confined to them upon an issue, ought not, it should seem, to be treated as confessions of the truth of the facts stated."

The first point to be noticed is, that all the learning as to the General general issue, since the new rules, will still be necessary, for issue. the defendant may traverse generally such of the facts in the declaration as might have been denied by one plea. It will not always be easy to apply the authorities to the new forms of declaration, but it is right to state here the chief decisions, and the principles laid down by them.

By Reg. Gen. H. T. 4 Will. IV., in all actions of assumpsit, except on bills of exchange and promissory notes, the plea of non-assumpsit shall operate only as a denial in fact of the express contract or promise alleged, or of the matters of fact from which the contract or promise alleged may be implied by law, and various examples are there given. (See Chitty's Archb. i. 225.) The effect of this was to confine the operation of non assumpsit, which had before operated as a denial of all the facts, and indeed of all liability to the action at the time it was brought, to a denial of the contract, expressed or implied, alleged in the declaration (Sutherland v. Pratt, 11 M. & W. 296).

Applying this to the general indebitatus counts, which are founded upon an executed consideration, evidence of any original liability, different from a liability to pay upon request, i. e. immediately, which is the contract laid in the declaration, was admissible under the general issue. Thus, an express contract with conditions precedent which have not been performed, as that the goods or the work answered the purpose (Groundsell v. Lamb, 1 M. & W. 352; Hayselden v. Staff, 5 A. & E. 153); or an express contract, showing that the debt was not payable until the end of an unexpired credit (Bromfield v. Smith, 1 M. & W. 542); or to money had and received, that the defendant had an unsatisfied lien (Williams v. Vines, 6 Q. B. 355), were admissible under the general issue.

The following are illustrations under the ordinary counts, arranged alphabetically:

Account stated.]-That there were errors in the accounts as stated (Thomas v. Hawkes, 8 M. & W. 140); that the plaintiff and defendant were partners, and that the accounts were not adjusted (Worrall v. Grayson, 1 M. & W. 166).

Goods sold.]-A breach of warranty, insufficiency of the goods (Cousins v. Pardon, 2 C. M. & R. 547; Duken v. Neale,

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Special contract.

1 M. & W. 556); or non-agreement with sample (Dawson v. Collis, 2 L. M. & P. 14; 20 L. J. 116, C. P.); that the plaintiff and defendant were partners (Payne v. Hales, 5 M. & W. 598); that they were sold for ready money, and paid for at the time (Bussey v. Bament, 9 M. & W. 312; but see Littlefield v. Banks, 7 Q. B. 739, that this would be payment); that the credit had not expired; that the goods were part of an entire contract, which had not been fulfilled, and the part delivered had been returned, &c.

Money had and received.]—"The general issue is a denial both of the receipt of the money, and of the existence of those facts which make such receipt by the defendant a receipt to the use of the plaintiff." (See the rule.) Therefore evidence will be admissible that the money was the proceeds of goods consigned to the defendant, with power to apply the proceeds in a particular way (Solly v. Neish, 2 C. M. & R. 355); that it was received for the use of another person (Clarke v. Dignam, 3 M. & W. 478); that it was received as trustee for a trust still open (Edwards v. Bates, 2 D. & L. 299); or that the plaintiff's right accrued under a deed (ib.; but quære as to this being any defence, since the forms of actions are no longer observed). Money paid.] Evidence of payments by the defendant on the account of himself and the plaintiff as partners (Gregory v. Hartnoll, 1 M. & W. 183; Brown v. Tapscott, 6 M. & W. 122); in an action for contribution, that at the time of the payment the plaintiff had the principal's money in his own hands (Goepel v. Swinden, 1 D. & L. 888).

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Use and occupation.] - Eviction by the superior landlord (Selby v. Brown, 7 Q. B. 620), or by the plaintiff before rent became due under an agreement (Prentice v. Elliott, 5 M. & W. 606), or any other fact to show that there never was such an occupation by him as to render him liable in point of law to the rent (Winterbottom v. Ingham, 7 Q. B. 611; see Smith v. Marrable, 11 M. & W. 5, which case, so far as it decides that the premises being uninhabitable from vermin is a good defence, can only be supported as to furnished lodgings, and even that is doubtful, see Sutton v. Temple, 12 M. & W.52; Surplice v. Farnworth, 7 M. & G. 576); payment to mortgagee after notice given before the rent due, but not if given afterwards (Waddilove v. Barnett, 2 B. N. C. 538; Evans v. Elliott, 5 Ad. & E. 142).

Work and labour.]-That the work was worthless (Bracey v. Carter, 12 A. & E. 373; Mondell v. Steele, 8 M. & W. 858); any special agreement for remuneration in goods or other modes (Collingbourne v. Mantell, 5 M. & W, 289), or upon conditions not complied with (see Jones v. Nanny, 1 M. & W. 333); the discharge of a servant before any wages were due (Ridgway v. Hungerford Market Company, 3 A. & E. 171). Where a special contract is stated, the general issue or traverse will admit

evidence of any new contract materially varying, whether by addition or otherwise, from the contract as stated, for the consideration as well as the promise is denied. Thus, that the policy was not caused to be made by or on behalf of the plaintiff (Sutherland v. Pratt, 12 M. & W. 296); that the alleged consideration of a guarantee did not exist (Lyall v. Higgins, 4 Q. B. 528), or was not proved as laid (Raikes v. Todd, 8 Ad. & E. 854); that the agreement as declared on was one made between the parties, but afterwards altered to that stated in the declaration (Davidson v. Cooper, 11 M. & W. 778); but not if the agreement declared on was varied by a subsequent agreement (Heath v. Durrant, 12 M. & W. 438); that the condition described in the declaration as a concurrent, was in fact a condition precedent (Kemble v. Mills, 1 M. & G. 757). So evidence to negative any facts from which the promise is to be implied, as for negligence in a particular character, that character is denied by the general plea (Aldis v. Gardner, 1 C. & K. 564); and a defence under the Statute of Frauds, whether under the 4th or the 17th section, will be admissible (Reade v. Lambe, 6 Exch. 130; 20 L. J. 161, Exch.; Leaf v. Tuton, 10 M. & W. 397); so as to representations as to the ability of another, under 9 Geo. IV. c. 14 (Turnley v. M'Gregor, 6 M. & G. 46). The expression, "might have been denied by one plea," is ambiguous when applied to pleas to bills of exchange. The R. H. 4 Will. IV. is, "that in all actions upon bills of exchange and promissory notes, the plea of non assumpsit shall be inadmissible," but if pleaded, judgment could not be signed unless the defendant was under terms (see Eddison v. Pigram, 16 M. & W. 137); and if issue was joined, the defendant could avail himself of any defence applicable to the plea (Finlayson v. M'Kenzie, 3 Bing. N. C. 284). But it could not have been intended to permit the revival of those general traverses, and therefore should such plea be attempted, application should be made under sect. 52. But the rule was limited to actions on bills, &c., simpliciter, without any other matter, so that non assumpsit was, and a general traverse will now be, admissible in an action by an executor on a bill payable to his testator, with a promise to pay him the executor (Timmins v. Platt, 2 M. & W. 720); or in an action against an executor on a cheque drawn by his testator (Rolleston v. Dixon, 2 D. & L.720); and there are many statutes permitting such general plea, as where the bill was given to persuade a creditor to assent to forbear opposition to a certificate (Weeks v. Argent, 16 M. & W. 817; and see now 12 & 13 Vict. c. 106, s. 202). But by the express words of the rule, "in every species of assumpsit, all matters in confession and avoidance, including not only those by way of discharge, but those which show the transaction to be either void or voidable in point of law, on the ground of fraud or otherwise, shall be specially pleaded,

Debt.

Detinue.

Trespass.

ex. gr. infancy, coverture, release, payment, performance, illegality of consideration, either by statute or common law, drawing, indorsing, accepting, &c., bills or notes by way of accommodation, set-off, mutual credit, unseaworthiness, misrepresentation, concealment, deviation, and various other defences, must be pleaedd."

In actions on deeds (covenant and debt) non est factum would, as before, operate as a denial of the execution of the deed in point of fact only, and all other defences should be specially pleaded, including matters which make the deed absolutely void, as well as those which make it voidable. (R. H., 4 Will. IV. Pleading, II.)

Nil debet is not to be allowed in any action. The plea of nil debet will still be permissible in penal actions, under 21 Jac. I. c. 4, as for debt, under 11 Geo. II. c. 19, s. 4, for double value for goods fraudulently removed by a tenant (Jones v. Williams, 4 M. & W. 375). "In actions of debt on simple contract, other than on bills of exchange and promissory notes, the defendant may plead that he never was indebted in manner and form as in the declaration alleged,' and such plea shall have the same operation as the plea of non assumpsit in indebitatus assumpsit; and all matters in confession and avoidance shall be pleaded specially, as above directed in actions of assumpsit. In other actions of debt, in which the plea of nil debet has been hitherto allowed, including those on bills of exchange and promissory notes, the defendant shall deny specifically some particular matter of fact alleged in the declaration, or plead specially in confession and avoidance."

The plea of non detinet shall operate as a denial of the detention of the goods by the defendant, but not of the plaintiff's property therein; and no other defence than such denial shall be admissible under that plea. Evidence as to the lawfulness or unlawfulness of the detention will not be admissible under the general traverse, such as a right to detain the goods .arising out of a joint interest with the plaintiff, a lien, a pledge for money unpaid or the like (Mason v. Farnell, 12 M. & W. 674; Barnewall v. Williams, 7 M. & G. 403). Not possessed was another plea in detinet, but the defences above named were not admissible under it, nor that the goods are property of the plaintiff and others jointly (Broadbent v. Ledward, 11 Ad. & E. 209); for the plaintiff may have a right to maintain the action, although he has no right to the immediate possession, or to more than a share in the goods.

"In actions of trespass quare clausum fregit, the plea of not guilty shall operate as a denial that the defendant committed the trespass alleged in the place mentioned, but not as a denial of the plaintiff's possession or right of possession of that plaee, which if intended to be denied must be traversed specially. In action of trespass de bonis asportatis, the plea

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