The New Practice of the Common Law

as in all cases, the court will not admit an equitable plea that would carry the legal defence further than a court of equity would extend its protection to a party."

Acting on the principle thus expressed, the courts have allowed an equitable defence in the following cases. To detinue for a lease, that it was deposited to secure payment to the defendants of 150l. and interest, by way of equitable mortgage upon the terms of an agreement in writing, the former recovery and proceedings thereon, that the 150 was still due, and that after the commencement of this action the defendant tendered and offered to deliver up the lease on payment of the 150l. with costs of the action up to that time, which offer was refused.(1) In an action on a policy of assurance, the defendant pleaded that the policy was made on the terms of a previous proposal being true, and that a statement therein was untrue; and an equitable replication was held good, that before the policy was made the defendants issued a prospectus, stating that all policies effected by them should be indisputable, except in cases of fraud, on the faith of which representation the plaintiff effected the policy.(2) Introver for goods, an equitable defence was allowed, that the plaintiff was owner of premises, and the goods were the stock in trade thereon, which were purchased by the defendants, but owing to a mistake of the broker in drawing up the bought and sold notes, the goods in question were omitted, and that possession of the goods and premises had been delivered to the defendants and the purchase completed.(3) In an action on a covenant binding the defendant not to practise in S., the court allowed an equitable plea, that, as between the defendant and the plaintiff, the part of S. in which the defendant practised, had always been treated as being in S. M., and that it was not intended by the parties to restrain the defendant from practising in the part of S. in question, and that the covenant, as set forth in the declaration, was so framed by mistake.(*)

The courts have refused to allow an equitable plea in the following cases where the plea disclosed circumstances in

(1) Chilton v. Carrington, 16 C. B. 206.

(2) Wood v. Dwarris, 11 Exch. 493; in this case it was also held, that when, in an action on a written contract, a defendant pleads matter which he is in equity precluded from setting up by a term of the contract not stated in the written instrument, a court of law may give equitable relief without the instrument being first reformed. (3) Steele v. Haddock, 10 Exch. 952.

(4) Luce v. Izod, 1 H. & N. 245.

which a court of equity would only restrain the action on terms and conditions, the plea amounting merely to a pending arbitration. (1) In an action of account upon the statute 4 Anne, c. 16, s. 27, by one tenant in common against another, for not accounting for rents received, the defendant pleaded that, before the receipt of the rents, the plaintiff and defendant by indenture demised the premises to W. for a term of 500 years, which term, after divers assignments, vested in the defendants; and an equitable replication that the said indenture was a mortgage to secure a sum of money, and that defendant had received more than sufficient to pay the mortgage debt, was struck out, because the court could not order a reconveyance. (2) In an action against an executor for goods sold, &c, to the testator, the defendant pleaded the Statute of Limitations; and an equitable replication, that the testator bequeathed his property in trust to pay his creditors, was held bad.(3) So, in the same case, to a plea of set-off of money due to plaintiff for use and occupation by the testator, an equitable replication, that the testator by his will directed all sums of money and effects already advanced to the plaintiff (of which the sum set off was one) should be deemed an advancement, was held had.(*) In an action for the nonperformance of an alleged agreement to load a ship for a particular voyage, with a guaranteed freight of not less than 55001, the court refused to allow an equitable plea, that the real contract was, that the ship should earn freight at such a rate per ton, that if filled she would obtain 55001., and that, by mistake of the person who reduced the contract into writing in the Spanish language, which he imperfectly understood, it was described as an absolute guarantee that the ship should have a freight of 55001.(3) In an action of covenant for rent, an equitable plea was refused, that the defendant agreed with the plaintiff that the defendant's tenants should attorn to the plaintiff, and that the defendant should pay a sum in satisfaction of the covenants, and the lease should be cancelled, and that the defendant had paid the sum accordingly and done every

(1) Wood v. Copper Miners Company, 17 C. B. 561. (2) Gorely v. Gorely, 1 H. & N. 144.

(3) Gulliver v. Gulliver, 1 H & N. 174.

(1) Ibid.

(5) Perez v. Oleaga, 11 Exch. 506, such a plea disclosing ground for a court of equity reforming the contract. See 'ood v. Dwarris, ante, p. 1280. See also Burgoyne v. Cotterill, 24 L. J. 28, B. C.;

thing on his part, but the plaintiff had refused to perform his agreement. (') Where a husband sued for money had and received, and the defendant's equitable plea was, in substance, that the money was assigned by the wife to him as trustee for her separate use; it was held that the equitable replication was good which set forth a prior assignment to the plaintiff, and that the defendant could not object that the plaintiff's title was a mere equitable title.(2) In an action by a wife's trustee against a banker for dividends, which the latter had paid over to a third party, pursuant to the plaintiff's power of attorney, it was held, the defendant could not be allowed an equitable plea, that the wife had obtained prepayment of her dividends by means of the power of attorney, which she had revoked before the defendant received the dividends.(3)

A plaintiff will not be allowed to reply equitably to a plea of the Statute of Limitations in an action for breaking the plaintiff's close and converting his goods, that the cause of action was fraudulently concealed from the plaintiff until within six years before the action.(*)

The court has ordered the plea to be struck out as follows:-Where, to an action by a drawer against an acceptor of a bill of exchange, the plea on equitable grounds was, that the bill was of a later date than it purported, and was so represented by the plaintiff, and that the action was commenced before the bill would have been due if properly dated. (5) Where an action was brought on a joint and several promissory note of the defendant and one S., payable to the plaintiff at six months, and the defendant pleaded equitably that he made the note without consideration and as surety for S. to secure a debt due to the plaintiffs, who took the note from him as such surety, and that the plaintiffs afterwards, without the defendant's consent, and for a good consideration, gave time to S., and had funds to his credit which they did not apply in payment, this was held not to amount to any equitable defence.(6)

The defendant, after pleading an equitable defence, which has been demurred to, may file a bill in equity for an

(1) Mines Royal Society v. Magnay, 10 Exch. 489, ante, p. 184. See also Teed v. Johnson, 25 L. J. 110, Exch.

(2) Sloper v. Cotterill, 27 L. J. 199, Q. B.
(3) Clarke v. Lawrie, 19 Nov. 56 Exch.
(4) Hunter v. Gibbons, 24th Nov. 1856, Exch.
(5) Drain v. Harvey, 17 C. B. 257.
() Strong v. Foster, 17 C. B. 201.

injunction;(1) and it seems the court of equity will not stay its hand merely because the demurrer is not disposed of. (2)

Although an equitable plea has been allowed by a judge at chambers, the plaintiff has a right to come to the court for a rule to strike it out, and this not by way of appeal from the decision of the judge at chambers, but as a substantive motion. (3)

On allowing an equitable plea, the court, thinking a jury would not dispose of it satisfactorily, has given the plaintiff the option of having the issue tried by the court.(*)

Where a party sues on a contract which was drawn up by mistake, and a court of equity would reform the contract on that ground, it seems a court of law will allow the equitable plea without forcing the defendant first to go into a court of equity, especially if the agreement is executed. (3)

(1) Phelps v. Protheroe, 25 L. J. 105, Ch.

Evans v. Bremridge, 27 L. T. 8, Ch.

Wood v. Copper Miners Company, 26 L. T. 91, C. P.

(4) Luce v. Izod, 1 H. & N. 245.

() Vorley v. Barrett, 28 L. T. 86, C. P.

A TABLE OF FEES

To be taken by the Sheriffs, Under Sheriffs, Deputy Sheriffs, Sheriffs' Agents, Bailiffs, and others, the Officers or Ministers of Sheriffs in England and Wales, pursuant to the Statute of 1 Vict. c. 55.

For every warrant which shall be granted by the Sheriff to his officers, upon any writ or process. (See post, p. 1288, as to the charge where there are several defendants.)

In London and Middlesex ...

And on Crown and outlawry process, an additional

In all other counties, where the most distant part of the county shall not exceed 100 miles from London