1840.

MORSE

v.

APPERLEY.

Exch. of Pleas, defences under the proposed pleas, he satisfies me that he does so intend, I make an indorsement upon the summons accordingly. The Court, however, has no power to make such indorsement, which shews that there cannot be an original application to the Court. In a case like the present, where the point could not be raised except an order be made, the party might apply to another Judge; but if each Judge individually refuses to make an order, an appeal to them collectively in this Court can surely be of no avail.] But these pleas are no infringement of the rule. It was never intended by the new rules, that a party should not be at liberty to deny the fact of possession, and also to set up title in himself. The second plea is a mere denial of possession, which constitutes a sufficient title to maintain the action, as against a wrong-doer. By the third and fourth pleas, the defendant shews title in himself and A. B., under whom he justifies. Those pleas admit the plaintiff's possession, but deny his right and title to the close. The plaintiff might reply to the third plea, that he was tenant to the defendant from year to year; to which the defendant might rejoin, that the tenancy was determined by notice to quit. The new rules were never intended to preclude a party from bringing the question to a precise issue, but the contrary. (He was then stopped by the Court).

Gray, contrà. First, as to the question of jurisdiction. There are two classes of cases to which the rule of Court extends. The first is, where it cannot be seen on the face of the pleadings themselves whether the contract or matter alleged in the two counts or pleas is the same; as, for instance, where a declaration contains two counts, each stating a contract to build a house, a Judge cannot tell from the declaration itself, whether there were in point of fact separate contracts as to different houses; he must, therefore, inquire of the plaintiff whether he means to give evi

1840.

MORSE

v.

APPERLEY.

dence of separate contracts under each count. The second Exch. of Pleas, class is, where it appears on the face of the pleadings themselves that the matter alleged in one pleading may be given in evidence under another, as in Neale v. M‘Kenzie (a), where a justification for entering the house as landlord, to distrain for rent, was not allowed with the general issue, because, by statute, that matter might be given in evidence under the general issue: in such cases a Judge requires no information beyond what appears on the face of the pleadings, to enable him to come to a decision. In the former case an indorsement on the summons becomes necessary, upon the assertion of the party that he intends to give separate matters in evidence, and perhaps that may be a reason why, in such case, no appeal would lie to the Court; but in the latter case every thing depends upon what appears on the pleadings themselves, and no indorsement on the summons can become necessary; because there is no assertion of the party, the truth or falsehood of which is to be afterwards ascertained and acted on by the Judge at the trial, as there is in the other case. The present case is within the second class, and therefore there can be no objection, on general principles, to an appeal to the Court. Then, secondly, these pleas are in contravention of the rule. A declaration in trespass quare clausum fregit alleges two traversable facts: first, that the defendant broke and entered a certain close; 2ndly, that the close was the plaintiff's. Now, the latter allegation is an allegation of title, Purnell v. Young (b), and not of bare possession; and although, where it is traversed, the plaintiff will prove the issue by shewing mere possession, if the defendant be a wrong-doer, that is because possession is primâ facie evidence of title, and a wrong-doer is, from rules of convenience, precluded from raising the question whether the plaintiff or a stranger has title. The

Exch. of Pleas, reasons why he is so precluded are forcibly stated in the

1840.

MORSE

v.

judgments of Lord Ellenborough, Le Blanc, J., and Bayley, J., in Chambers v. Donaldson (1). If then, in point of pleadAPPERLEY. ing, that be an allegation of title, the form of the traverse can make no difference; the plea concludes to the country, and must be taken to be a denial of the plaintiff's title. The first and second pleas in this case put in issue what the general issue did before the new rules, that is, both the facts before alluded to; and under the general issue, before the new rules, the defendant could give in evidence either liberum tenementum in himself or in another, and that he acted by command of the other: Argent v. Durrant (b). In the latter case Lord Kenyon says: "It is now too late to discuss this question, which appears to be settled in Lord Coke's time. In a case in 1 Lev. 301, in trespass, the defendant pleaded not guilty; and if he could give in evidence, that at the time of the trespass the freehold was in such a one, and he as his servant, and by his command, entered, was the question; and it is said by Coke 'that the same might be so well enough; and so it was adjudged in Trevilian's case, for if he by whose command he entereth hath right at the same instant that the defendant entered, the right is in the other, by reason whereof he is not guilty as to the plaintiff; and judgment was given accordingly.' Conformably to this doctrine, I have always understood that it has been the practice to permit the defendant to give liberum tenementum in evidence under the general issue." In Carr v. Fletcher (c), the same doctrine was acted upon. [Lord Abinger, C. B.-That was no decision of the Court, but an admission on the part of the counsel that this defence might be given in evidence under the general issue. Alderson, B.-It is laid down in Chambers v. Donaldson, that if the defendant plead soil and freehold in another, by whose command he justifies, such command may (b) 8 T. R. 403.

(a) 11 East, 66.

(c) 2 Stark. 71.

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MORSE

ย.

APPERLEY.

be traversed by the plaintiff. The general issue would put Exch. of Pleas, in issue not only the soil and freehold being in a stranger, but that by his command the defendant entered.] The reason why it may be given in evidence is stated in Gilbert on Evidence, 230, because it falsifies the declaration. He says, "The defendant may prevail in this issue, first, by making title to the land, for then he falsifies the declaration, for he proves that he did not enter into the plaintiff's close, but his own, and, consequently, that is a very just disproving of the plaintiff's declaration." If, then, the second plea amounts in substance to a traverse of the close being the plaintiff's, the facts alleged in the third and fourth pleas will, if true, prove it, and may be given. in evidence under it; and therefore, either that plea, or the third and fourth, ought to be struck out as being prohibited by the new rules.

PER CURIAM.-We think these pleas are not necessarily in contravention of the rule. The plea of liberum tenementum admits the plaintiff to have the actual possession, but alleges that the right of possession is in the defendant as owner of the fee. It is consistent with that plea that the plaintiff may be in possession under a lease from the owner of the fee. It is possible that these pleas may apply to a state of facts constituting one and the same subject-matter of defence, but it is also possible that they may apply to a totally different state of facts, constituting a different defence; and if that be so, they do not come within the rule which has been cited.

Rule discharged with costs.

Exch. of Pleas, 1840.

ALDERTON v. ST. AUBYN.

Where a writ of IN this case a writ of sequestration, at the suit of the sequestration plaintiff, having been issued, directed to the Bishop of Exeter, was indorsed and returned by him into this Court before the execution was fully satisfied.

was returned to

this Court before the plaintiff's execution

was satisfied, the Court allowed it to be taken off the file and sent back to the

Bishop, in order that he might take the return

off the writ and certify to the Court what he

Humfrey now moved for a rule to shew cause why the writ should not be taken off the file of the Court and sent back to the Bishop, on the ground that this, being a continuing writ, ought not to have been returned until the execution was satisfied, otherwise parties who had lodged writs of sequestration subsequently, would deprive the plaintiff of the fruits of his prior execution. In Disney v. for that purpose Eyre (a), the Court, under similar circumstances, directed the writ to be taken off the file and returned to the Bishop, in order that he might certify what he had done under it. He prayed that the rule might be absolute in the first instance.

had done under it. The rule

is absolute in

the first in

stance.

PARKE, B.-I think this rule ought to be granted, and that it ought to be absolute in the first instance. If we were to grant a rule nisi only, there might be a difficulty as to the parties upon whom the plaintiff was bound to serve it; the only parties who could properly lay any claim to service would be those who had issued subsequent writs, and who may be termed mesne incumbrancers. The Bishop was wrong in returning the writ when he did, but for that the plaintiff ought not to suffer. The Bishop may take the return off the writ, and certify to the Court what he has done under the writ.

The rest of the Court concurred.

Rule absolute.

(a) 1 Alc. & Nap. 34.