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1836.

GRIFFIN

0. YATES.

court, there says: . In the case of Noel v. Rich, this court expressed a strong opinion that this general form of traiverse, in a case similar to the present, was proper: and we think that it is; for, the plea confesses that the defendant made the note in question and indorsed it to Richardson, who indorsed it to the plaintiff, which constitutes a prima facie case of liability, and an implied promise to pay the amount to the plaintiff; and it avoids the effect of that admission by shewing that the note was made and indorsed without value bona fide paid, whereby the defendant was excused from performing that promise. As to the objection that the replication is multifarious, the facts contained in the plea, though they are several, constitute one ground of defence; and the rule of pleading is not that the issue must be joined on a single fact, but on a single point of defence. This was laid down by Lord Mansfield in Robinson v. Rayley, 1 Burr. 316, by the court of King's Bench in O'Brien v. Saxon, and by Mr. Justice Bayley, in the case of Carr v. Hinchliffe, 7 D. & R. 42, 4 B. & C. 547. In each of these cases, the facts there allowed to be included in one issue, as amounting to a single ground of defence, were several. In the first, the facts that the cattle were commonable, and levant and couchant, constituted one proposition, viz. that the cattle were entitled to common; in the second, the trading, petitioning creditor's debt, and act of bankruptcy, formed one point of defence, viz. the bankruptcy of the plaintiff; and in the last the facts of the goods for the price of which the action was brought being sold by an agent as principal, and a set-off of a debt due from the agent, constituted the defence of payment or satisfaction of the plaintiff's demand. So, in the present case, the plea contains in substance one ground of defence only, that is, that the plaintiff was not the bona fide holder for value, although several facts are necessarily averred as constituting parts of it." It is clear therefore that both the allegations contained in this plea might have

1836.

been put in issue by the general traverse: consequently,
there can be no valid objection to the replication as it now
stands, on the ground of duplicity.

GRIFFIN

ATES.

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Stephen, Serjeant, in reply. It is not competent to a plaintiff to traverse all the allegations in a plea, where a traverse of either of them would of itself afford a full and sufficient answer. The general replication de injuria is an exception; but that does not apply to assumpsit; its application has never yet been extended beyond trespass and replevin--Crogate's case, 8 Rep. 132; Selby v. Bardons, 3 B. & Ad. 2. Robinson v. Rayley is an insulated case. Denison, J., there says: “The replication de injuria sua propria absq' tali causa will do in all cases where matter of title, and other things of that kind, are not included in the absque tali causa : and, if you admit them, you may then plead de injuria sua propria absque residuo causæ, traversing that residue. But the rule in Crogate's case does not affect this case; for, here the question is one single proposition, viz. the measure of the common : and the measure of the common is the levancy and couchantcy jointly with the property.” [Tindal, C. J.-In that case, the plea consists in matter of excuse for a trespass which the defendant admits baving committed. Here, it amounts to an excuse for the nonperformance of the promise. There, the whole amounted to but one single matter of excuse; and so, it is contended on the other side, does this. Why should not the same rule apply?] In Robinson v. Rayley, the plaintiff might undoubtedly have replied generally de injuriâ; and therefore it mattered little that he did so in another form. Here, however, the general replication is not admissible. The real question is whether there is any authority for holding that the whole of the matters stated in the plea amount to but one single point of defence: if not, then the replication is clearly bad. In Webb v. Weatherby, ante, Vol. 1, p. 477, 1 New Cases, 502, to a declaration in as

1836.

GRIFFIN

YATES.

sumpsit by the assignee of an insolvent debtor, for goods sold &c., the defendant pleaded that he paid a certain sum in full satisfaction and discharge of the promise in the declaration, and that the insolvent accepted and received the same in full satisfaction and discharge: the plaintiff replied that the defendant did not pay the insolvent the sum mentioned in full satisfaction and discharge, nor did the insolvent accept and receive the same in full satisfaction and discharge: it was held, on special demurrer, that the replication was good, simply because the fact of the payment being made in satisfaction was necessarily involved in the fact of the receipt being in satisfaction.

Cur. adv. vult.

TINDAL, C. J., now said :-When this demurrer was argued before us the other day, we entertained but little doubt that the facts stated in this plea might in some way be put in issue; and that de injuria was the the more convenient form. The court of Exchequer, in Isaac v. Farrer, have laid down the rule that the general replication de injuria may be pleaded in assumpsit where the plea consists of mere matters of excuse--still adhering to the doctrine in Crogate's case. But, inasmuch as this has hitherto been matter of doubt, we think the plaintiff ought to have leave to amend.

Rule accordingly.

MORGAN v. PEBRER.

Monday,

Feb. 1st. THIS was an action commenced in the Lord Mayor's on the removal Court, and removed hither by writ of certiorari, upon of a cause by

certiorari from

the Lord Mayor's Court, the defendant is not at liberty under the 7 & 8 Geo. 4, c. 71, s. 2, to pay money into court in lieu of putting in and perfecting special bail.

ath

, and

1836,

MORGAN

which it is required by the practice of the court that spe. cial bail shall be perfected, tsie oft me wri? 1.91rena frigo

i Wilde, Serjeant, on the part of the defendant, moved for leave to pay into court the amount of the debt, and the usual sum for costs, in lieu of putting in and perfecting special bail, under the 7 & 8 Geo. 4, c. 71, s. 2.

]ور را در ۶۰۰۰ إزاء اور ر إ . ر .. ... از

PERBER,

Talfourd, Serjeant, contrà, referred to the language of the statutes 43 Geo. 3, c. 46, and 7 & 8 Geo. 4, c. 71, which allowed deposits in lieu of bail, first with the sheriff, and afterwards by payment into court; and submitted that they applied solely to actions commenced in the superior courts, and to cases where the party is actually arrested, not (as here) merely summoned.

Wilde, in support of his rule. It is true the statutes are addressed to the case of arrests of the person ; but the court will so construe them as to give effect to the remedy intended. Wherever anything may be done indirectly and circuitously, the court, in the exercise of a sound discretion, will, in order to save expense and delay to the suitors, permit it to be done directly: as in the case of entering an exoneretur on the bail-piece, a mode of relief not given by the act. Here, by section 4 of the 7 & 8 Geo. 4, c. 71, the defendant, after perfecting bail, may exonerate them by paying the debt and costs into court. The plaintiff, therefore, cannot possibly sustain any prejudice from the money being brought in in the first instance. (Bosanquet, J.-Does not that clause apply to a party who originally had the right to pay money into court?] This case is at all events within the equity of the section. The remedy is always advanced beyond the strict letter of the act, where the case is clearly within the mischief intended to be redressed.

1836.

-The Court intimated a strong opinion that the case was
not provided for by the statute: but, "upon their recom -
mendation, Talfourd consented to withdraw the objection.
LCIO 13 bigi, 11, 101, 10

, .')", IS, Soif t1'. Rule accordingly.
i

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in boks (

MORGAN

0. PEBRER.

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In the course of Hilary Term, the Lords Commissionsioners resigned the Great Seal.

The Right Honorable Sir C. C. Pepys (Master of the Rolls) was thereupon appointed Lord High Chancellor of England, and raised to the peerage by the title of Baron Cottenham, of Cottenham, in the county of Cambridge.

Henry Bickersteth, Esq., was appointed Master of the Rolls, and was raised to the peerage by the title of Baron Langdale, of Langdale, in the county of Westmoreland.

Their lordships took their seats in their respective courts on Tuesday the 19th January.

END OF HILARY TERM.

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