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Analytical Digest of Cases : Common Lar Courts.

551 Bristol, which court has, by charter, jurisdic

BILL OF EXCHANGE. tion for the recovery of debts; and that the 1. Presentment, allegation of.- In a count by defendant then became, and at the time of com- an indorsee against the drawer of a bill drawn mitting the supposed grievance, was a bailiff of payable in London, the venue being laid in the court, and that the supposed grievance was London, a general allegation of presentment was a thing done in pursuance of his duty as such held to be a sufficient allegation of presentment bailiff, and that no notice of action was given : in London since the rule of Hilary T. 4 W, 4, Held sufficient, and that the defendant was jus-r. 8. tified, on the ground that he was bailiff de facto. Quære, whether the defect would have been Braham v. Watkins, 4 D. & L. 42.

aided by the defendant's pleading over, if the And see Justification.

venue had been laid elsewhere. Boydell v. Harkness, 3 C. & B. 168.

2. Venue.- Presentment.-By Reg. Gen. Hil. Render.—Declaration on a bond under 1 & 2 T. 4 W. 4, ii. r. 8, no venue is required to be Vict, c. 110, s. 8, given by the defendant and stated in a declaration except the one alleged others, his partners in trade, stated that judg- in the margin ; and therefore, in an action by ment was recovered in an action for the original the indorsee against the indorser of a bill of debt, which was not paid; and that a judge's exchange drawn payable in London, where the order was made to render the principals within venue stated in the margin of the declaration 10 days, which time was enlarged without

London," it was held that an averment judice by another judge's order ; that a rule of presentment, not stating where, sufficiently nisi was obtained within that period, calling on alleged a presentment in London. Boydell v. the plaintiffs to show cause on a subsequent Harkness, 4 D. & L. 178. day why the defendant and his bail should not

3. Initials of party.--In a declaration on a have further time to render, and that in the bill of exchange, it is informal to describe any mean time proceedings against the defendants of the parties to the bill by the initials only of and his bail should be stayed; and that neither his christian name, without showing that he is the defendant nor his co-debtor rendered them- so described in the bill itself. Esdaile v. Mac, selves according to the practice of the court, or lean, 15 M. & W. 277. within the time mentioned in either of the orders or within any other time, or in any several counts on different bills of exchange,

4. Certainty. - In a declaration containing manner directed by the court or any judge each count, after describing the bill, referred to thereof : Held, 1st, that a plea which alleged it as “ the said " bill of exchange : Held, sufthat a writ of ca. sa. had issued in the original ficiently certain, even on special demurrer; for action was good; 2ndly, that a plea which that the words - the said” ought to be referred averred, that the judge's order had been obtained exparte by the plaintiff

, was bad; 3rdly, M. & W. 277.

to the last antecedent. Esdaile v. Maclean, 15 that a plea which alleged that the rule nisi in the declaration alleged, was made absolute on

5. Amending judgment.-- Where the defendthe 22nd day of term, giving further time to ant pleads non assumpsit to the whole of a derender, and that a render was made within that claration, consisting of a count on a bill of extime, was good; 4thly, that a bond under 1 & 2 change, and money counts, the plaintiff cannot Vict. c. 110, s. 8, under such circumstances, sign judgment generally. was not a claim within the 6 G. 4, c. 16, ss. 51

And the court will not allow him to amend and 56, barred by the defendant's certificate the judgment, by confining it to the count on obtained after the commencement of the ori- the bill, and entering a nolle prosequi on the ginal action, but before judgment; 5thly, that other counts. Eddison v. Pigram, 16 M. & a plea alleging that the plaintiff had brought

W. 137. an action to recover the sum mentioned in the And see Accord and Satisfaction, 2. bond, was not a bar to an action on the bond, although the judgment in respect of the debt was obtained in an action subsequently com

Argumentative averment. - Debt on bond menced. Hinton v. Acraman, 3 D. & L. 426. against a surety under 1 & 2 Vict. c. 110, s. 8,

conditioned for the payment of a debt due by Cases cited in the judgment: Sandon v. Proctor, H., or for his render. Plea, that the plaintiff

7 B. & C. 800; South v. Gryffith, Cro. Car. recovered judgment in the Queen's Bench for
481; Weddall v. Manucaptors of Jocar, 10 Mod. the debt, and arrested and detained H. on a ca,
287'; Wilmore v. Clerk, 1 Lord Raym. 156; sa.; that H. sued out a habeas corpus cum
Jameson v. Campbell, 5 B. & A. 250; Exparte
Barker, 9 Ves. 110 ; Exparte Marshall, 1 Mont. causá, and was committed to the Marshalsea
& Ayr, 143; Abbott v. Hicks, 7 Scoti, 733; 3 of the Queen's Bench, and detained there until
Bing. N. c. 578.

after the return day of the writ; that H, was
always ready to render himself, and would have

rendered himself according to the practice of See Detinue.

the court, but that he was prevented from so

doing by the plaintiff in manner aforesaid : BAR, PLEA IN.

Held, on special demurrer, that if the plea was See Abatement ; Arbitration ; Double plead- construed as an excuse, as it did not distinctly ing; Husband and wife,

ayer that it was impossible for H. to render




Analytical Digest of Cases : Common Law Courts. himself, it was bad as argumentative; and if | and entering a farm, the plea, after setting out construed as a performance, it was bad as not a lease hy indenture from A. to the plaintiff, being substantially so averred. Hayward v. which contained covenants by the plaintiff that Bennett, 4 D. & L. 228.

he would not, at any time during the term, CONTRACT.

sow, reap, or take from the arable lands de

mised, or any part thereof, more than two crops 1. Argumentative denial.-—What amounts to of any sort of corn or grain successively, but the general issue.- Where the declaration in an would every third summer fallow or lay the action of assumpsit complained of a breach by said arable' lands down with rye-grass and the defendant of a condition on which the sale clover seeds, or would plant with potatoes, or of certain houses had been made to the plaintiff, sow with peas or beans, which should be twice namely, “ that the vendor would deliver an well hoed; and also that the plaintiff, bis abstract of title to the purchaser, or his or her executors, &c., should not, at any time during solicitor," and the plea of the defendant stated the term, let, assign, or set over, or otherwise that at the time of the promise it was agreed as part with the indenture of lease, or the premises part of the contract, that the defendant should thereby demised, without the special license deliver an abstract of the title, commencing and consent of A., his heirs and assigns, in with a certain specified deed, and to that extent writing—with a power of re-entry for breach of only. Held, that the plea was an argumentative any covenant in the lease—and setting out a denial of the contract in the declaration, and grant by indenture of the reversion to the de bad as amounting to the general issue. Shar- fendant, stated, that, after the making of these land v. Leifchild, 34 L. O. 277.

indentures, &c., the plaintiff did set over and 2. Exception.-4. delivered goods to B. to part with the said indenture of lease and the be conveyed from Gibraltar to London, the act term thereby created, within the true intent of God and the dangers of navigation excepted. and meaning of the said indenture of lease, and The vessel was to touch at Cadiz on the the proviso and condition for re-entry therein passage. While the vessel was at Cadiz the contained, to wit, by pawning, pledging, and goods belonging to the plaintiff were seized as mortgaging the said indenture of lease to and contraband, and forfeited according to the with certain creditors, to wit, B. & C., without revenue laws of Spain.

the consent of A. or of the defendant. The Held, in an action by A. for the non-delivery plaintiff replied, that he did not set over or of the goods, that a plea setting out the above part with the said indenture of lease, or the facts was bad as not amounting to a defence to term thereby created, within the true intent the action. Spence v. Chadwick, 34 L. O. 80. and meaning of the said indenture of lease, &c., And see Debt, 1.

by pawning, pledging, or mortgaging the said

indenture with the said supposed creditors, modo Covenant. - Declaration in covenant stated, et formá: Held, bad, on special demurrer; for that plaintiff, by indenture, granted to defend that the replication should have denied geneant all the coals and mines of coal under rally that the plaintiff had parted, i.e., in any certain lands; that defendant covenanted to pay

manner parted, with the indenture, instead of to plaintiff

, as the price of the coal so granted, confining the issue to the particular mode of 401. for every statute acre of the said coal which parting with it, immaterially stated under a should be found under the said lands; and scilicet, in the plea. until the said price should be fully paid, to

Another plea stated, that during the term the pay plaintiff' 401., part of the said price, in each plaintiff sowed and took off and from 50 acres

of the arable lands demised, more than two year, by two equal half-yearly instalments, whether the whole of an acre of the said coal crops of corn successively; and that he did should be gotten in every such year or not.

not nor would every 3rd year summer-fallow or Averment, that, at the making of the in- lay the said arable' lands or any part thereof denture, there were under the said lands divers, down with rye-grass, &c., nor did nor would to wit, 14 acres of the said coal, and that plant with potatoes, nor sow with peas, which divers, to wit, 13 acres of the said coal still re- The plaintiff replied--that he did not at any

were twice well, or in any manner hoed, &c. mained under the said lands; and that 401.

, time during the term, sow or take off or from for two of the half-yearly instalments of the the arable lands, or any part thereof, more than said price for the coal aforesaid, became due and still was in arrear and unpaid to the plain- two crops of any sort of grain successivelytiff: Held, on motion in arrest of judgment, consisting of 50 acres, and did lay down with

year did summer-fallow a part, that the declaration was bad, for not averring that coals had been found under the premises. rye-grass and clover seeds part, consisting of Jowett v. Spencer, 15 M. & W. 662.

50 other acres, with potatoes, and did sow ad

other part, consisting of 50 other acres, with Case cited in the judgment : Sicklemore v. peas, and the residue of the arable land with Thistleton, 6 M. & Sel. 9.

beans, which were twice well hoed, &c.; and CONSTABLE.

that there was not at any time during the said See Trespass, 1, 2.

demise, any portion of the said arable lands in

the indenture contained which the plaintiff did COVENANT.

not every 3rd year either summer-fallow or lay 1. Construction of:-In trespass for breaking down with rye-grass and clover-seeds, or plant



Amalytical Digest of Cases : Common Law Courts.

553 with potatoes, or sow with peas or beans which contract a service to be performed by A. for B. were twice well hoed; contrary to the covenant is to be paid for in goods, A. cannot declare in of the plaintiff in the indenture in that behalf debt for the value of the service, but must sue contained, &c.; concluding to the country: on the special contract. Held, on special demurrer to the replication, But if B., by his own act, render the delivery that the covenant set out was two-fold--that of the goods impossible, A. may sue in debt for the tenant would not take more than two crops the value of the service. of grain in succession—and that he would do So, if B. allow the goods to be sold under an certain other things; that the plea correctly execution against him. Keys v. Harwood, 2 averred a breach of the 1st branch of the cove C. B. 905. nant, but did not show a breach of the 2nd, Case cited in the judgment: Baines v. Payne, 1 inasmuch as it did not negative the sowing with Chitty on Pleadings, (8 ed.) 357. beans; and that the replication, which contained a direct traverse of the breach well al

2. Payment.—“Causes of action.”—In án leged in the plea, was not rendered

bad by the action of debt, a plea of payment in satisfaction introduction of the subsequent immaterial and discharge of the causes of action in the des matter relating to the other breach.

claration mentioned, is a plea to the damages A replication which answers the only ma

as well as the debt. Triston v. Barrington, 4 terial part of a plea, is good, notwithstanding D. & L. 273. the introduction of immaterial matter in the

3. Payment in satisfaction.-In debt, a plea plea. Hammond v. Colls, 1 C. B. 916.

of payment of a sum of money, in satisfaction 2. In an action upon a covenant by the de- of all the causes of action in the declaration fendant, that he would pay over to the plaintiff mentioned, is an answer as well to the damages the 1st fruits or proceeds which should be first as to the debt.

Triston v. Barrington, 16 realized, and“ be at the disposition of the de- M. & W. 61. fendant,” under a sequestration, “ forthwith And see Set-off, 1. upon the receipt thereof,” the declaration alleged, that divers moneys, being 1st fruits and proceeds, were realized, and were at the dispo

Trespass.-Heriot.-De injuriú is a good resition of the defendant, and that he had not plication to a plea in trespass justifying, as lord paid them over to the plaintiff: Held, sufficient, of a manor, the seizure of the best beast as a on special demurrer, and that it was not neces- heriot. Price v. Woodhouse, 4 D. & L. 286. sary to aver actual receipt of the money by the See Argumentative Averment, 1; Heriot defendant. Smith v. Nesbitt, 2 C. B. 286. Custom. And see Coal Lease; Recitals in Deed. COVERTURE.

1. Plea amouuting to non assumpsit.-DeclaCircumstantial and informal plea. - To a

ration upon an agreement whereby it was concount against the maker of a promissory note, tracted that the plaintiff should supply, and the he pleaded in bar, that at the time of making defendant receive, certain bales of wool, and the note, the plaintiff was the wife of A., that alleging as a breach the refusal of the defendant the consideration for the note was the loan of to receive ; plea, that the wool contracted for money of A. advanced by the plaintiff to the de- was to be according to sample, but the wool fendant without A.'s authority and against his tendered was inferior to the sample : Held, on will, that the plaintiff took the note, and held special demurrer, that the plea was not bad, as and still holds the same without the authority amounting, to non assumpsit. Sieveking v. and against the will of A., and that he never

Dutton, 4 D. & L. 197. had any property in or right to the note : Held, 2. Statement of grounds. — Where a party an informal plea of coverture. Guyard v. Sut- demurs specially to several pleas, &c., on the ton, 3 C. B. 153.

same grounds, the causes of demurrer to all after the first are sufficiently stated by saying

that the plea, &c., is insufficient “for the like Declaration in case stated, that the defendant causes and grounds of objection which have wrongfully and maliciously kept a ram, well been taken to the said plea.” Braham v. knowing that he was prone and accustomed to Watkins, 16 M. & W.77. attack, butt, and injure mankind : and that the

And see Duplicity: Frivolous Demurrer ; said ram, while the defendant so kept the same, Grounds of Demurrer; Joinder in Demurrer ; attacked, butted, and threw down, and thereby Libel; siander. hurt the plaintiff: Held, sufficient, on motion in arrest of judgment, without showing that the defendant negligently kept a ram.

Jackson v. 1. Special bailment. - To a declaration in Smithson, 15 M. & W. 563.

detinue upon a special bailment of scrip certiCase cited in the judgment : May v. Burdett, de ficates to be re-delivered to the plaintiff on paycided in Q. B. in Trin. Term, 1846.

ment of a sum of money, the defendant pleaded

that the scrip was deposited as a pledge and DEBT.

security for money advanced by him to the 1. Where not maintainable in respect of a plaintiff, and that on repayment thereof he special contract. - Where by the terms of a. tendered and offered to deliver up and return





Analytical Digest of Cases : Common Law Courts, to the plaintiff the scrip certificates which the was not bad for duplicity. Fearne v. Corkrane, plaintiff' then refused to accept and receive. 34 L. O. 81.

Held, on special demurrer, that the word And see Accord and Satisfaction, 2. “ detain" in detinue means an adverse deten

EJECTMENT. tion, and that consequently the plea was bad, as amounting to non detinet. In a declaration

Amendment.-In an action of ejectment comin detinue, the allegation of bailment, whether menced in Ail. T. 1841, by a mortgagee on a common or special, is mere surplusage, and mortgage deed of the date of 1824, the term not traversable. Clements v. Flight, 4 D. & L. was stated to be 11 years from the date of the 261.

demise, 22nd of June, 1831. The defendant

was admitted to defend as landlord, and the Cases cited in the judgment: Whitehead v. Har cause was set down for trial at the summer

rison, 6 Q. B. 423; Gledstane v. Hewitt, 1 C. assizes, 1841, when, upon terms of arrange& J, 365,

ment being proposed by the defendant, the 2. Detinue.--Declaration alleged, that plaintiff plaintiff countermanded his notice of trial. Ne delivered certain paper-writings, purporting to gotiations had since been going on between the be scrip certificates for shares, to defendant, to parties till March 1846, when they were broken be re-delivered, on request, after payment to off, and notice of trial again given for the spring him of a certain sum, averring that that sum assizes, 1846. The plaintiff then having diswas paid to defendant. Breach, that defendant covered that the term demised had expired, hath not delivered the paper-writings, though countermanded his notice of trial. The court requested, but "detains” the same. Plea, made absolute a rule permitting the lessor of that they were deposited with defendant as a the plaintiff to amend the declaration and issue, pledge and security for 2101. advanced by him by inserting the term of 20 for 11 years, or by to plaintiff, and that, on payment of that sum, altering the date of the demise. Doe d. Rabbits defendant tendered and offered to deliver up v. Welch, 4 D. & L. 115. and return them to plaintiff, who then refused

ESTOPPEL. to receive them : Held, on demurrer, that this plea was bad, for denying the detention, argu tion for unskilfully constructing a kitchen

1. Damages.-- Cross action. To a declaramentatively, and for amounting to non detinet. The detention complained of was an adverse range, the defendants pleaded, by way of esdetention, because the word “ detain” in a

toppel, that they sued the now plaintiff for the declaration in detinue means, that defendant price of constructing the range, and that he withholds the goods, and prevents plaintiff from pleaded payment into court of 421., which the having possession of them.

now defendants accepted in satisfaction: Held, The bailment stated in the declaration in on demurrer, that the plea did not amount to detinue, whether it was general or special, is an estoppel, and afforded no answer to the acsurplusage, and not traversable, the gist of the tion. Rigge v. Burbidge, 4 D. & L. 1. action being the detainer of plaintiff's goods. stipulated price of a specific chattel, the defend.

2. Payment into court.-In an action for the Clements v. Flight, 16 M. & W. 42.

ant pleaded payment into court of a sum which

the plaintiffs took out in satisfaction of the See Trespass, 3.

cause of action: Held, that the defendant in that action was not estopped thereby from su

ing the plaintiffs for negligence in the construcBar and further maintenance. - The court tion of the chattel. Rigge v. Burbidge, 15 refused to allow a defendant to plead a M. & W.598. plea in bar of the further maintenance of the Case cited in the judgment: Mondel v. Steele, 8 action, together with a plea in bar of the action M. & W.858. generally. Suckling v. Wilson, 4 D. & L.

And see Recitals in Deed. 167. DUPLICITY.

Form of.-A feigned issue in the form of a Satisfaction and discharge. Demurrer. fendant pleaded the delivery and acceptance by actions upon wagers in 8 & 9 Vict

. c. 109. Where to a count on a bill of exchange the de- wager, directed under the Interpleader Act, is

not rendered illegal by the prohibition of the plaintiff of his, the defendant's, own promissory note, payable on demand, for and the schedule to that act is not compulsory.

The adoption of the form of issue given in on account of such bill of exchange and the Luard v. Butcher, 2 C. B. 858. causes of action in respect thereof, and then further alleged that the plaintiff afterwards

FOREIGN LAW. agreed to accept and did accept the warrant of 1. Notice of process.- Non-appearance.-In attorney to confess judgment of a third party, assumpsit on a judgment or decree of the in full discharge and satisfaction of the said Tribunal of Commerce at Brussels, the defend. promissory note, and of all causes of action in ant pleaded, that he was not at any time serred respect thereof, and of the causes of action in with any process issuing out of that court, at the said count on the bill of exchange men- the suit of the plaintiffs, for the causes of action tioned. Held, that the plea only set up one de- upon which the said judgment or decree svas fence by way of satisfaction and discharge, and obtained, nor had he at any time notice of any



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Analytical Digest of Cases : Common Law Courts.

555 such process, nor did he appear in the said Case cited in the judgment: Ilitchcock v. Walcourt to answer the plaintiffs.

ford, 5 Scott, 792 ; 6 Dowl. 457. Held, bad, inasmuch as the plea did not show that the proceedings against the defendant in the Belgian court were so conducted as to

A demurrer to a plea stated in the body of deprive the defendant of the opportunity of it, and also in the margin, " that the plea was defending himself therein. Reynolds v. Fenlon, those taken to a former plea:" Held, a suffi

insufficient for the like grounds of objection as 3 C. B. 187. See Argumentative Averment, 1, 2.

cient statement of the special causes of de

murrer. Braham v. Watkins, 4 D. & L. 42. 2. Liability of foreign prince resident in this

And see Demurrer, 2. country.To an action of debt on an annuity bond executed by the defendant when he was

HERIOT CUSTOM. reigning Duke of Brunswick, but who was re- Replication de injuria. - In trespass for sident in this country at the time the action taking chattels, if the defendant justifies the was commenced, a plea, merely alleging that seizure under a heriot custom, the plaintiff may the defendant was å sovereign prince at the reply de injuriá absque tali causá. And if there time the deed was executed, was held no an- are several pleas claiming several heriots in reswer to the action, the plea not showing that spect of different tenements, one replication de the defendant was a sovereign prince at the injuriá will suffice. Price v. Woodhouse, 16 time the action was brought and plea pleaded, M. & W. 1. nor that the deed was executed in respect of a See De Injuria. subject-matter which when made could not be enforced by law in the country in which it was made. Munden v. The Duke of Brunswick, 1. Abatement or bar.-In an action by hus34 L 0. 204.

band and wife for slander of the wife, a plea that she is not the wife of the plaintiff, is a

good plea in bar. Chantler v. Lindsey, 4 1. Signing judgment on the whole record.- . & L. 339. Where a demurrer clearly frivolous was pleaded

2. Abatement. - To an action by husband to one of several replications by a defendant, and wife for slander of the wise, a plea that the who was under terms of pleading issuably, &c., female plaintiff was not the wife of the other the court gave the plaintiff leave to sign judg- plaintiff, is a good plea in bar. Chantler v. ment on the whole record as for want of a plea; Lindsey, 16 M. & W. 82. unless the defendant consented to strike out the pleadings ending with the demurrer, and pay the costs of the application and of prepar- 1. Cross action. The plaintiffs declared on ing for the trial which had been lost, and take an agreement, that the defendants should furshort notice of trial. Tucker v. Barnesley, 4 nish the plaintiffs with a steam-engine by a D. & L. 292.

specified time, to be paid for by instalments, 2. Signing judgment. Irregularity.-In an payable at certain times, with reference to the action by drawer against acceptor of a bill of progress of the work: Breach, that the steamexchange, the defendant pleaded, amongst engine was not furnished by the specified time. other pleas concluding to the country,) that A plea alleging the non-payment of the 2nd inthe ntiff indorsed the bill to a person un- stalment, though due with reference to the known, who, at the time of the commencement work done, according to the terms of the agreeof the suit, was the holder thereof, and entitled ment, held, to be an issuable plea. Zulueta v. to sue the defendant thereon. The plaintiff Miller, 4 D. & L. 186. replied that the said person was not at the time Cases cited in the judgment: Steele v. Harmer, of the commencement of the suit the holder of 14 M. & W. 136; 2 D. & L. 861; Mackay v. the bill, concluding to the country. The plain- Wood, 7 M. & W. 420 ; 9 Dowl. 278. tiff having added the similiters and delivered the issue, the defendant struck out the similiter whether the action is not rendered unmaintain

2. A plea framed fairly to raise the question to the above replication, and demurred specially. able by reason of the non-performance of an A judge at chambers ordered the demurrer to alleged condition precedent, is an issuable plea. be set aside as frivolous, and that the plaintiff be at liberty to sign judgment on the plea in Zulueta v. Miller, 2 C. B. 895.

Cases cited in the judgment : Steele r. Harmer, question. The plaintiff signed judgment on

14 M. & W. 139; Mackay v. Wood, 7 M. & W. that plea, tried the other issues, and obtained a

121. verdict, the defendant not appearing at the

JOINDER IN DEMURRER. trial. On motion to rescind the judge's order, and set aside the trial and subsequent proceed

1. Similiter. Issue. — The rule of Hilary ings : Held, that, as the rule did not ask to set Term, 4 Will. 4, c. 108, is qualified and altered aside the issue, there was no irregularity in the by the rule of Hilary Term, 4 Will. 4, c. 3; trial : Held, also, (Alderson, B., dissentiente,) therefore, where the plaintiff replied by taking that the judgment signed was irregular, there issue on some pleas and demurred to others, being other pleas on the record covering the and added the similiters and joinders in de whole cause of action. Talbot v. Bulkeley, 4 murrer and delivered the issue : Held, irregular D. & L. 306.

as under the latter rule; the defendant was not



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