Exchequer. The omission of the quo minus, in a declaration in ejectment, is immaterial. DOE, dem. BLOXHAM v. ROE. KELLY moved to set aside a declaration in ejectment for irregularity. The declaration commenced by stating, that Richard Roe was attached to answer John Doe, &c., and there was no allegation of his being "indebted to our Lady the Queen," or of the " quo minus," at the conclusion.-[Parke, B.— It has been held, that an impossible title may be rejected, provided the notice be sufficient (a).] Lord ABINGER, C. B.-In point of fact, Richard Roe is neither summoned nor attached; neither is it true, that he is a debtor to the Queen. It appears to me, that the omission is of no importance. PARKE, B.—Mr. Baron Bayley stated in this Court, that the strict form of declaration might be dispensed with, provided sufficient information was contained in the notice. Rule refused. Where time is obtained upon terms of pleading issuably, and rejoining gratis, it only applies to the plea, and not to the subsequent proceedings. THIS (a) Doe, d. Gore v. Roe, 3 Dowl. P. C. 5. WOODMAN V. GOBLE. was an action to recover the amount of an attorney's bill. The defendant after obtaining time to plead upon the usual terms of pleading issuably and rejoining gratis, pleaded that no signed bill was delivered. The plaintiff replied, that a signed bill was delivered, concluding with a special traverse, to the country. The similiter having been added by the plaintiff, defendant struck it out, and demurred specially to the replication for duplicity. The plaintiff signed judgment on the ground, that the terms of pleading issuably were not confined to the plea only, but extended to the subsequent proceedings. Whateley having obtained a rule to set aside the judgment for irregularity, J. L. Adolphus shewed cause.-The plaintiff was justified in signing judgment, as the demurrer is frivolous.—[ Parke, B.—If that be so you should have applied to set it aside.]—It is true, that in Dewey v. Sopp (a), it was held, that the terms of pleading issuably, and rejoining gratis, did not oblige the defendant, at all events, to join issue to the country, but only where the replication offered a fair issue; but the defendant is precluded from raising any objections which he could not have taken advantage of on general demurrer, Bell v. Da Costa (b). In Sawtell v. Gillard (c), the defendant being under terms of pleading issuably, demurred specially to the plaintiff's replication for duplicity; and Abbott, C. J., says, "the only general rule which the Cert can lay down is, that where a party has obtained time, on terms of pleading (c) 5 D. & R. 620. (a) 2 Str. 1185. issuably, and by his pleading, fails to bring the merits of the case, or some question of fact, or some question of law arising upon the facts in issue, and does not comply with the conditions of the order. Here the defendant was bound to plead issuably, instead of which he demurs to the replication specially, upon a collateral circumstance." It was decided in White v. Givens (d), that where a defendant is under terms of pleading issuably, he must plead such a plea as he intends bona fide to abide by, and that after having pleaded a special plea, he could not strike out the plea, and plead the general issue, although he had not been ruled to abide by his plea. Langford v. Waghorne (e) shews, that at all events, it must be a fair and bona fide demurrer. In Gisborne v. Wyatt (ƒ), the plaintiff replied double, and the Court held, that defendant could not demur specially, as he was under terms to plead issuably.[Parke, B.-That case is hardly an authority, one way or the other.]-The only authorities on the other side are Betts v. Applegarth (g), and Barker v. Gleadow (h), but the latter is the opinion of a single judge, in opposition to the cases enumerated. Whateley, in support of the rule.-The venue is laid in Northumberland, and it would be almost impossible for a defendant in the ordinary course of proceeding, to plead within the eight days allowed him. The Court then grant an indulgence, upon the terms of his pleading an issuable plea, that means, that the plea when put in, should tender an issue. Dewey v. Sopp only decided, that a party must not demur for delay, but for good cause. Sawtell v. Gillard cannot be considered law at the present day. In Betts v. Applegarth, Best, C. J., says, "the order for time under terms of pleading issuably, must apply to the existing state of the cause at the time it is issued, and does not extend to cover subsequent errors. If it did, the parties might go on blundering to the end of the cause." Barker v. Gleadow, which was very elaborately considered, is precisely in point. Per Curiam-We will take an opportunity of consulting the judges of the other Courts, it is very important to have some uniform rule. PARKE, B., on a subsequent day said, we have consulted the judges of the two other Courts, and they all agree, that the true construction of the common order for time to plead upon terms of pleading issuably, applies to the plea only, and not to the other subsequent proceedings. We, therefore, admit the authority of Betts v. Applegarth, and Barker v. Gleadow. (d) 6 M. & S. 415. Rule absolute. (g) 4 Bing. 267. Exchequer. WOODMAN v. GOBLE. JACKSON V. CAWLEY. MANSELL moved to set aside a demurrer as frivolous. The declaration contained counts for money lent, money had and received, and for money due on an account stated: to these counts there was one demurrer, assigning for cause, that no time was alleged. It was evident from the case of Lane v. Kelwell (a), that it was not necessary to specify time, except in the count on an account stated. Pike shewed cause, and contended, that the demurrer was good as to part, and could not, therefore, be set aside as frivolous. Lord ABINGER, C. B.-It is quite clear the demurrer is good for nothing. (a) 4 Dowl. P. C. 705. Rule absolute. When issue was joined in a country cause fore Easter Term, and no ment, as in But where in such case issue is EVANS v. BARNARD. ADDISON moved for judgment as in case of a nonsuit. Issue was joined on the 14th April last; it was a country cause, and no notice of trial had on the day be- been given. From a recent decision in this Court (a), it became necessary to consider whether the application was too early. The 14th G. 2, c. 17, enacted, that where issue was joined, and the plaintiff neglected to bring such issue on to be tried, according to the course and practice of the said Courts respectively, it should be lawful for the judges of the said Courts, at any time after such neglect, to give the like judgment for the defendant, as in a case of a nonsuit.-[Parke, B.-The new rule which dispenses with an entry of the issue, previously to moving for judgment, as in case of a nonsuit, makes no difference as to the time of moving].-The question will depend upon when it was necessary, under the old practice, to enter the issue. In Tidd's Practice (b), it is stated, "that in the King's Bench, if the action be laid in London or Middlesex, the defendant ought not to give a rule for the plaintiff to enter his issue the same term it is joined, unless notice of trial has been given. In the Common Pleas, when the action is laid in London or Middlesex, the defendant can in no case give a rule to enter the issue the same term it is joined; but must stay until the next term; and in a country cause, the plaintiff is in no way bound in either Court to enter his issue the same term. In the Exchequer, it is said, a defendant may give a rule for the plaintiff to enter his issue the same term in which it is joined, whether notice of trial has been given or not." In the present case, the practice of the Court required the plaintiff to (b) 727. joined in Trinity Term, the motion cannot be made until the following Easter Term. (a Smith v. Miller, 6 Dowl, P. C. enter the issue before the end of Trinity Term, and to proceed to trial at the Assizes after. In Robinson v. Taylor (c), which was a country cause, issue was joined in Easter vacation, and no notice of trial had been given; and Littledale, J., after consideration, held that the plaintiff should have proceeded to trial at the Summer Assizes. The same rule is laid down in Wilbams v. Edwards (d), and Smith v. Rigby (e). The only case that militates against these decisions is, that of Smith v. Miller (ƒ), in which the Court held, that in a country cause, where there had been no notice of trial, two Assizes must elapse, before the defendant can move for judgment, as in case of nonsuit. PARKE, B.-That case was decided upon the information of one of the officers of the Court, who appears to have been under a mistake; you have satisfied me, that there ought to be a rule nisi. Busby on a subsequent day shewed cause, and referred to Smith v. Miller, and Crowley v. Dean (g). Lord ABINGER, C. B.-If issue be joined in an issuable term, the rule as to two Assizes will apply, but not otherwise. PARKE, B.-If issue be joined in the term next before the Assizes, then two Assizes must elapse, before the motion can be made; so that if issue be joined in Trinity Term, the defendant cannot move until the following Easter Term. (e) 5 Dowl. P. C. 518. (d) 3 Dowl. P. C. 183. (e) 3 Dowl. 705. Rule discharged upon a peremptory undertaking. (ƒ) 3 M. & W. 60. PARKER, Executrix of PARKER v. RILEY. Exchequer. EVANS v. BARNARD. Where the replication de inJurió, is inapplicable, the objection can only be taken on special de murrer. ASSUMPSIT. The first count stated the defendant to be indebted to C. E. Parker, deceased, for work and labour, as the attorney and solicitor of and for the said defendant; and also for divers journeys, and other attendances by the said C. E. P. as aforesaid, before then made, performed, and given, in and about the business of the said defendant. There were also counts for money paid, money lent and advanced, and money due on an account stated. To an action for work done The defendant pleaded thirdly, as to the first and second counts of the declaraby the plaintion, that the said work, labour, care, diligence and attendance, in the said first tiff's testator as an attorney, decount mentioned, were respectively done, performed, and bestowed by one fendant pleaded Richard Stormley, and by clerks and servants employed by the said R. S., that the work by his direction, and under his superintendance, management, and control R. S., that and not otherwise, in and about the commencing, prosecuting, and de- R. S. was unfending the said causes and suits in the declaration mentioned, the same act as an attorbeing certain causes and suits prosecuted and defended for and on behalf ney, and that of the defendant, by the said R. S., in the name, but without the control testator knowing R. S. to be unqualified, was done by one qualified to the plaintiff's permitted him to use his name for the profit of R. S.-Held, that the replication de injuriâ, was bad. Exchequer. PARKER v. RILEY. or interference of the said C. E. Parker, in his then Majesty's Courts of King's Bench, and Common Pleas, at Westminster; and that the said pleadings, briefs and writings in the declaration also mentioned, were drawn, copied and engrossed in the cause and for the purpose of prosecuting and defending the said causes and suits; and that the said journies and attendances in the declaration mentioned, were performed and given by the said R. S., and clerks and servants employed by him, and by his direction, in the course and for the purpose of prosecuting and defending the said causes and suits, and in relation thereto; and that the said money, in the said second count mentioned, was money paid and disbursed by the said R. S. in and about the prosecution and defence of the said causes and suits. And the defendant further saith, that the said R. S. never was admitted to act as an attorney or solicitor in the said Courts, or either of them, or in any Court of Law or Equity, in such manner as is directed by the Statute, in such case made and provided, or was a person duly qualified to act as an attorney or solicitor; and he, the said R. S., before and for the whole period at and during which the said work, and labour, care, diligence and attendance, were done, performed, and bestowed, and the said journeys and attendances were performed and given, as in the declaration alleged, was a person unqualified to act or practise as an attorney or solicitor; and the said defendant further saith, that the said C. E. Parker, before and during the period last aforesaid, was a sworn attorney of his then Majesty's Courts of King's Bench, and Common Pleas, at Westminster, and that the said C. E. Parker being such sworn attorney, and then well knowing that the said R. S. was not duly qualified to act as an attorney or solicitor, and that the said R. S. was such unqualified person as aforesaid, did then permit and suffer the said R. S. to make use of the name of him the said C. E. Parker, upon the account and for the profit of the said R. S., so being such unqualified person as aforesaid; and the said R. S. did accordingly, in pursuance of such permission and sufferance, make use of the name of the said C. E. Parker, with his privity and knowledge, and for the profit of the said R. S., in and about the commencing, prosecuting, and defending the said causes and suits respectively, in and about the drawing, copying, and engrossing the said pleadings, briefs, and writings, contrary to the Statute, &c. To this plea the plaintiff replied de injuria, to which there was a general demurrer. Swan, in support of the demurrer. The replication de injuria is only admissible where the plea amounts to matter of excuse for the non-performance of the promise, Isaac v. Farrar (a), Crisp v. Griffiths (b). But where the plea denies the promise alleged in the declaration, or the facts from which the law implies a promise, the replication de injuria is inapplicable; Solly v. Neish (c), Whittaker v. Mason (d). Here the plea shews the work never was done by the testator, but by another person to whom he illegally lent his name. The Court then called upon (a) 4 Dowl. P. C. 750; I M. & W. 65. (b) 3 Dowl. P. C. 753; 2 C. M. & R. 159. (c) 4 Dowl. P. C. 248; 2 C. M. & R. 355. (d) 2 Bing. N. C. 359. |