Amalytical Digest of Cases: Common Law Courts. 553 But if B., by his own act, render the delivery of the goods impossible, A. may sue in debt for the value of the service. 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, that the covenant set out was two-fold-that the tenant would not take more than two crops of grain in succession-and that he would do certain other things; that the plea correctly averred a breach of the 1st branch of the cove nant, but did not show a breach of the 2nd, inasmuch as it did not negative the sowing with beans; and that the replication, which contained a direct traverse of the breach well al leged in the plea, was not rendered bad by the introduction of the subsequent immaterial matter relating to the other breach. A replication which answers the only material part of a plea, is good, notwithstanding the introduction of immaterial matter in the plea. Hammond v. Colls, 1 C. B. 916. 2. In an action upon a covenant by the defendant, that he would pay over to the plaintiff the 1st fruits or proceeds which should be first realized, and "be at the disposition of the defendant," under a sequestration, forthwith upon the receipt thereof," the declaration alleged, that divers moneys, being 1st fruits and proceeds, were realized, and were at the disposition of the defendant, and that he had not paid them over to the plaintiff: Held, sufficient, on special demurrer, and that it was not necessary to aver actual receipt of the money by the defendant. Smith v. Nesbitt, 2 C. B. 286. And see Coal Lease; Recitals in Deed. COVERTURE. Circumstantial and informal plea. To a count against the maker of a promissory note, he pleaded in bar, that at the time of making the note, the plaintiff was the wife of A., that the consideration for the note was the loan of money of A. advanced by the plaintiff to the defendant without 4.'s authority and against his will, that the plaintiff took the note, and held and still holds the same without the authority and against the will of A., and that he never had any property in or right to the note: Held, an informal plea of coverture. Guyard v. Sutton, 3 C. B. 153. DANGEROUS ANIMAL. Declaration in case stated, that the defendant wrongfully and maliciously kept a ram, well knowing that he was prone and accustomed to attack, butt, and injure mankind: and that the said ram, while the defendant so kept the same, attacked, butted, and threw down, and thereby hurt the plaintiff: Held, sufficient, on motion in arrest of judgment, without showing that the defendant negligently kept a ram. Smithson, 15 M. & W. 563. Case cited in the judgment: May v. Burdett, cided in Q. B. in Trin. Term, 1846. DEBT. So, if B. allow the goods to be sold under an execution against him. Keys v. Harwood, 2 C. B. 905. Case cited in the judgment: Baines v. Payne, 1 2. Payment." Causes of action.”—In an action of debt, a plea of payment in satisfaction and discharge of the causes of action in the declaration mentioned, is a plea to the damages as well as the debt. Triston v. Barrington, 4 D. & L. 273. 3. Payment in satisfaction.—In debt, a plea of payment of a sum of money, in satisfaction of all the causes of action in the declaration mentioned, is an answer as well to the damages Triston v. Barrington, 16 as to the debt. M. & W. 61. And see Set-off, 1. DE INJURIA. Trespass.-Heriot.—De injuriá is a good replication to a plea in trespass justifying, as lord heriot. Price v. Woodhouse, 4 D. & L. 286. of a manor, the seizure of the best beast as a See Argumentative Averment, 1; Heriot Custom. DEMURRER. 1. Plea amouuting to non assumpsit.-Declaration upon an agreement whereby it was contracted that the plaintiff should supply, and the defendant receive, certain bales of wool, and alleging as a breach the refusal of the defendant to receive; plea, that the wool contracted for was to be according to sample, but the wool tendered was inferior to the sample: Held, on special demurrer, that the plea was not bad, as amounting to non assumpsit. Sieveking v. Dutton, 4 D. & L. 197. Jackson v. 1. Special bailment. To a declaration in detinue upon a special bailment of scrip certide-ficates to be re-delivered to the plaintiff on payment of a sum of money, the defendant pleaded that the scrip was deposited as a pledge and security for money advanced by him to the plaintiff, and that on repayment thereof he tendered and offered to deliver up and return 1. Where not maintainable in respect of a special contract. Where by the terms of a 554 Analytical Digest of Cases: Common Law Courts, to the plaintiff the scrip certificates which the plaintiff then refused to accept and receive. Held, on special demurrer, that the word "detain" in detinue means an adverse detention, and that consequently the plea was bad, as amounting to non detinet. In a declaration in detinue, the allegation of bailment, whether common or special, is mere surplusage, and not traversable. Clements v. Flight, 4 D. & L. 261. was not bad for duplicity. Fearne v. Corkrane, 34 L. (. 81. And see Accord and Satisfaction, 2. EJECTMENT. Amendment. In an action of ejectment commenced in Hil. T. 1841, by a mortgagee on a mortgage deed of the date of 1824, the term was stated to be 11 years from the date of the demise, 22nd of June, 1831. The defendant was admitted to defend as landlord, and the cause was set down for trial at the summer assizes, 1841, when, upon terms of arrangement being proposed by the defendant, the plaintiff countermanded his notice of trial. Negotiations had since been going on between the parties till March 1846, when they were broken off, and notice of trial again given for the spring assizes, 1846. The plaintiff then having discovered that the term demised had expired, countermanded his notice of trial. The court made absolute a rule permitting the lessor of the plaintiff to amend the declaration and issue, by inserting the term of 20 for 11 years, or by altering the date of the demise. Doe d. Rabbits v. Welch, 4 D. & L. 115. 2. Detinue. Declaration alleged, that plaintiff delivered certain paper-writings, purporting to be scrip certificates for shares, to defendant, to be re-delivered, on request, after payment to him of a certain sum, averring that that sum was paid to defendant. Breach, that defendant hath not delivered the paper-writings, though requested, but "detains the same. Plea, that they were deposited with defendant as a pledge and security for 2107. advanced by him to plaintiff, and that, on payment of that sum, defendant tendered and offered to deliver up and return them to plaintiff, who then refused to receive them: Held, on demurrer, that this plea was bad, for denying the detention 1. Damages. Cross action.-To a declaramentatively, and for amounting to non detinet. tion for unskilfully constructing a kitchen 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, on demurrer, that the plea did not amount, to an estoppel, and afforded no answer to the action. Rigge v. Burbidge, 4 D. & L. 1. argu The bailment stated in the declaration in detinue, whether it was general or special, is surplusage, and not traversable, the gist of the action being the detainer of plaintiff's goods. Clements v. Flight, 16 M. & W. 42. · Demurrer. Satisfaction and discharge. Where to a count on a bill of exchange the defendant pleaded the delivery and acceptance by the plaintiff of his, the defendant's, own promissory note, payable on demand, for and on account of such bill of exchange and the causes of action in respect thereof, and then further alleged that the plaintiff afterwards agreed to accept and did accept the warrant of attorney to confess judgment of a third party, in full discharge and satisfaction of the said promissory note, and of all causes of action in respect thereof, and of the causes of action in the said count on the bill of exchange mentioned. Held, that the plea only set up one defence by way of satisfaction and discharge, and ESTOPPEL. 2. Payment into court.-In an action for the Case cited in the judgment: Mondel v. Steele, 8 And see Recitals in Deed. FEIGNED ISSUE. Form of.-A feigned issue in the form of a wager, directed under the Interpleader Act, is actions upon wagers in 8 & 9 Vict. c. 109. not rendered illegal by the prohibition of The adoption of the form of issue given in the schedule to that act is not compulsory. Luard v. Butcher, 2 C. B. 858. FOREIGN LAW. 1. Notice of process.-Non-appearance.-In assumpsit on a judgment or decree of the Tribunal of Commerce at Brussels, the defendant pleaded, that he was not at any time served with any process issuing out of that court, at the suit of the plaintiffs, for the causes of action upon which the said judgment or decree was obtained, nor had he at any time notice of any Analytical Digest of Cases: Common Law Courts. such process, nor did he appear in the said court to answer the plaintiffs. Held, bad, inasmuch as the plea did not show that the proceedings against the defendant in the Belgian court were so conducted as to deprive the defendant of the opportunity of defending himself therein. Reynolds v. Fenton, 3 C. B. 187. See Argumentative Averment, 1, 2. 2. Liability of foreign prince resident in this country.-To an action of debt on an annuity bond executed by the defendant when he was reigning Duke of Brunswick, but who was resident in this country at the time the action was commenced, a plea, merely alleging that the defendant was a sovereign prince at the time the deed was executed, was held no answer to the action, the plea not showing that the defendant was a sovereign prince at the time the action was brought and plea pleaded, nor that the deed was executed in respect of a 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, 34 L. O. 204. FRIVOLOUS DEMURRER. 1. Signing judgment on the whole record. Where a demurrer clearly frivolous was pleaded to one of several replications by a defendant, who was under terms of pleading issuably, &c., the court gave the plaintiff leave to sign judgment on the whole record as for want of a plea; unless the defendant consented to strike out the pleadings ending with the demurrer, and pay the costs of the application and of preparing for the trial which had been lost, and take short notice of trial. Tucker v. Barnesley, 4 D. & L. 292. 555 Case cited in the judgment: Hitchcock v. Walford, 5 Scott, 792; 6 Dowl. 457. GROUNDS OF DEMURRER. A demurrer to a plea stated in the body of it, and also in the margin, "that the plea was insufficient for the like grounds of objection as those taken to a former plea:" Held, a sufficient statement of the special causes of demurrer. Braham v. Watkins, 4 D. & L. 42. And see Demurrer, 2. HERIOT CUSTOM. Replication de injuria. — In trespass for taking chattels, if the defendant justifies the seizure under a heriot custom, the plaintiff may reply de injuriá absque tali causá. And if there are several pleas claiming several heriots in respect of different tenements, one replication de injuria will suffice. Price v. Woodhouse, 16 M. & W. 1. See De Injuria. HUSBAND AND WIFE. 1. Abatement or bar.-In an action by husband 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 D. & L. 339. 2. Abatement. To an action by husband and wife for slander of the wife, a plea that the female plaintiff was not the wife of the other plaintiff, is a good plea in bar. Chantler v. Lindsey, 16 M. & W. 82. ISSUABLE PLEA. engine was not furnished by the specified time. A plea alleging the non-payment of the 2nd instalment, though due with reference to the work done, according to the terms of the agreement, held, to be an issuable plea. Zulueta v. Miller, 4 D. & L. 186. Cases cited in the judgment: Steele v. Harmer, 14 M. & W. 136; 2 D. & L. 861; Mackay v. Wood, 7 M. & W. 420; 9 Dowl. 278. 1. Cross action.-The plaintiff's declared on an agreement, that the defendants should furnish the plaintiffs with a steam-engine by a 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 other pleas concluding to the country,) that the plaintiff indorsed the bill to a person unknown, who, at the time of the commencement of the suit, was the holder thereof, and entitled to sue the defendant thereon. The plaintiff replied that the said person was not at the time of the commencement of the suit the holder of the bill, concluding to the country. The plaintiff having added the similiters and delivered the issue, the defendant struck out the similiter to the above replication, and demurred specially A judge at chambers ordered the demurrer to be set aside as frivolous, and that the plaintiff be at liberty to sign judgment on the plea in question. The plaintiff signed judgment on that plea, tried the other issues, and obtained a verdict, the defendant not appearing at the trial. On motion to rescind the judge's order, and set aside the trial and subsequent proceed1. 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 being other pleas on the record covering the whole cause of action. Talbot v. Bulkeley, 4 D. & L. 306. whether the action is not rendered unmaintain2. A plea framed fairly to raise the question able by reason of the non-performance of an alleged condition precedent, is an issuable plea. Zulueta v. Miller, 2 C. B. 895. Cases cited in the judgment: Steele v. Harmer, 14 M. & W. 139; Mackay v. Wood, 7 M. & W. 421. JOINDER IN DEMURRER. issue on some pleas and demurred to others, and added the similiters and joinders in demurrer and delivered the issue: Held, irregular as under the latter rule; the defendant was not 556 Analytical Digest of Cases: Common Law Courts.-Letter Box. bound to join in demurrer until four days after demand. Cooke v. Blake, 33 L. O. 94. Cases cited in the Judgments. It will be found that the cases to which these notes are attached, THE EDITOR'S LETTER BOX. 2. A defendant who obtained time to plead on the term of rejoining within 24 hours, de-are generally of more importance than the rest. fivered several pleas, to some of which the And the reference to those previous authorities plaintiff replied, concluding to the country, and will, no doubt, be of much use both to the to others he demurred. The plaintiff having practitioner and the student.] added the similiters and joinders in demurrer, the defendant struck them out. The plaintiff then obtained a judge's order, "that the defendant forthwith join in demurrer." On motion to rescind the order: Held, that the Reg. Gen. Hil. T. 4 W. 4, r. 3, qualified and altered the Reg. Gen. H. T. 2 W. 4, r. 108, and that the plaintiff was irregular in adding the joinders in demurrer. Cooke v. Blake, 4 D. & L. 313. THE next volume of the Legal Observer will be further enlarged, in order to increase the number and value of the REPOrts of ReCENT DECISIONS, without curtailing any of the Original Articles, or select Information, for Case cited in the judgment: Jones v. Key, 2 C. which the Work has been distinguished. & M. 340; 2 Dowl. 265. JOINT CONTRACTORS. The Contents of each Number will be ar ranged as follows: --- Abatement.-Pendency of action.-In an action against one of several joint contrac1st. Original articles on all projected alterators, the defendant cannot plead in abate- tions in the Law and Practice; -the state ment the pendency of another action for the of the Profession and measures for its imsame cause against another co-contractor; but provement; New Statutes, with explanahe should plead in abatement the non-joinder of the joint contractor: and if a second action tory notes and disquisitions on their conbe brought against all, the pendency of the struction; -Parliamentary Bills, Reports and former action against the other joint con- Returns: -Notes or Commentaries on importtractor may be pleaded. Henry v. Goldney, ant Decisions in Common Law, Equity, and 4 D. & L. 6. Conveyancing :-the Law of Railways, Insurance, and other Joint Stock Companies :-Review of New Books:-The Law of Attorneys and Costs, and the Examination of Articled Clerks: Proceedings of Law Societies:: And see Non-joinder. JUSTIFICATION. Bailiff of inferior court.-In trover, the defendant pleaded, that the supposed grievance was committed after the passing of the 7 Vict. c. 19, and within the jurisdiction of the inferior Legal Biography; Correspondence; Profescourt thereinafter mentioned; and that, before | sional Lists, &c. and at the time of the grievance, the defendant | 2nd. Original and early Reports of every had been duly appointed to act as a bailiff in the execution of the process of the court of the important Decision in all the Superior Courts, Tolzey of Bristol, which then, and at the time by Barristers of the several Courts: - New of the passing of the said act of parliament, Rules and Orders of Court; — an Analytical had, by charter, jurisdiction for the recovery of Digest of all Reported Cases in all the Courts— debts and damages in personal actions arising classified according to the leading subjects adwithin the city and county of Bristol; and the defendant then became and was, and thence- judicated upon ;-Cause Lists ;-Circuits ;forth until and at, &c., was a bailiff of the said Sittings; and every other information relating court; and that no notice of action was given to the business of all the courts. to him pursuant to the said act. Held, on demurrer, 1st, that the plea brought the defendant within the protection of the 8th section of that act; 2ndly, that the jurisdiction of the inferior court was sufficiently shown; 3rdly, that the defendant's duty as bailiff was sufficiently set forth. Braham v. Watkins, 16 M. & W. 77. Case cited in the judgment: Hughes v. Buckland, 15 M. & W. 346. And see Trespass, 1, 2. The further letters on the jurisdiction of the New County Courtsi,n summoning debtors under unsatisfied judgments obtained previous to the passing of the New County Court Act, reached us too late for the present number, but shall be attended to in the next. "S." of Worcester is informed that the university degree, to be available in shortening the time of service under articles of clerkship, should be taken before he was articled. Communications for the Legal Almanac, Year-Book, Remembrancer, and Diary for 1848, should be sent, addressed to the Editor, at Messrs. Maxwell and Sons, 32, Bell Yard, Lincoln's Inn. The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, OCTOBER 16, 1847. "Quod magis ad NOS Pertinet, et nescire malum est, agitamus." HORAT. THE PUBLIC, THE PROFESSION, |garded as a set of persons whom it is not AND THE COUNTY COURTS. simply allowable, but decidedly laudable, to victimise. It has, therefore, become IT is a remarkable fact, that while the the fashion to believe that the best way to profession has been almost silent under the improve the law is to degrade, and, as far injury and insult inflicted by the establish- as possible, exterminate its professors, ment of the New County Courts, the public until every man, acting as his own lawyer, has been clamorous against the working of has, in accordance with the proverb, "a a measure which was to bring justice home fool for his client." This consummation to the door of every man with cheapness has been most materially advanced by the and expedition. We admire the philosophy, late County Courts Act, and the suitors and approve the policy, of our professional are beginning to find that the old saying is brethren, in leaving the community to find fearfully realized. It was not to be exout by experience the inconvenience and pected that the science of law could be hardship that must arise from the mode of rendered more simple or effectual by practice adopted in the new tribunals. It superseding those who have made it their would have been vain for the attorneys to study, any more than it could be hoped raise their voices against the deliberate in- that the medical art would be advanced justice of taking from them a very large by discouraging the employment of the portion of that employment on the faith of physician. There would be a general which they have prepared themselves for outcry against a proposition to provide for their profesion at a considerable expense; the better preservation of the public health and were they to complain of the insult by inviting every man to doctor himself passed upon them by the wretched scale and become his own patient, yet when the of fees, according to which their services same principle is applied to the law, the are estimated under the new act, they absurdity is hailed as something approachwould meet with little sympathy. Their ing very nearly to the perfection of wisdom remonstrances would, of course, be attri- and enlightenment. buted to interested motives; for, although Notwithstanding the vulgar prejudice self-preservation is admitted to be the first which attributes mercenary motives to the of natural laws, which all men are bound professors of the law in their hostility to to obey, the lawyers themselves are not those rash and intemperate innovations allowed to do so, without their alleged ra- that pass under the general name of pacity being denounced by an unjust and reform, we may declare, without fear of senseless clamour. The interests of all contradiction, that, as a whole, there is no other professions are admitted to be en- class of men so ready to forego their indititled to some consideration, but the body vidual advantage for the general benefit. of legal practitioners, who pay in admis- All the salutary changes that have taken sion stamps and yearly certificates a much place; all the real amendments that have larger sum than any other class, are re-been introduced into our legal system VOL. XXXIV. No. 1,023. C C |