Common Pleas.

ATKINSON

บ. NESBITT.

there is, properly speaking, no continuance; there might have been E. T. 1847. a dies datus prece partium: Tidd. 421, 9th ed. After declaration and before issue joined, the continuance is by imparlance; after issue joined, and before verdict, it is by vice comes non misit breve (which is not applicable here, as that continuance, by its very words, imports that the Sheriff had not returned the writ); and after verdict or demurrer, the continuance is by Curia advisare vult: Tidd. 9th ed., 678. In the Common Pleas, records and judgments are invariably made up without the entry of any continuance: Ferg. Prac. 1013; Boote's Suit at Law, 92, 94, 95, 96. That this has been the case, at least for the last thirty years, a reference to the records and to the officer of this Court will establish. The absence of the averment is excused by the non-existence of the entry, especially because a plea puis darrein continuance cannot be put on the record without the oath of the defendant that the plea is true in substance and matter of fact. It is, however, said that the return day of the venire facias should have been selected by the pleader as the day whence the last proceeding was continued. A reference to the dates and events demonstrates that such a selection would have been productive of a gross incongruity, as in fact the present practice, in respect to the teste and return of the writ of venire facias, wholly disregards the order, continuance and prosecution of a suit. The venire, tested as of Trinity Term, is made returnable on the 2nd day of November, the declaration being also entitled as of that day, of which too it would be entitled if filed on any subsequent day of that Term; the cause therefore is continued before, or at all events, contemporaneously with its commencement; and that continuance, which according to Stephen and Tidd, could only be after issue joined, has preceded the continuance between declaration and plea, which is imparlance. The purport of a continuance is to carry forward proceedings already in esse; here there was not any action to be continued. A venire is to try certain issues; here none were tried. A continuance is to account for the presence of parties in Court who otherwise would be presumed out of Court; here it is apparent from the record that the parties were in Court, and the cause ripening to an issue. If the 2nd of November had been fixed upon as the terminus a quo of the continuance, it would have been said that, as the plea in chief was pleaded on the 17th of November, non constat that the matter of the present plea did not then exist, and that it is an inflexible rule, that a plea puis darrein continuance cannot be pleaded of matter which existed as a bar at the time of the plea in chief. All due diligence has here been used, the entry of the judgment in replevin, recovered on the 24th of November, having been pleaded on the 28th. The

Common Pleas.

ATKINSON

บ.

NESBITT.

E. T. 1847. rule made in England upon the abolition of continuances has been here adopted. That the affidavit may be brought in support of the plea, is shown by Prince v. Nicholson (a), in which the converse prevailed, the plea having been admitted in aid of the affidavit. Even when the doctrine of continuances was in force, it was held that if a plaintiff be outlawed after the defendant imparls, he may plead the outlawry without saying puis darrein continuance: Green v. Moore (b). It is impracticable now to pursue the ancient form, it having been regulated by the general return days, which have been abolished by 1 & 2 W. 4, c. 31, and cessante ratione cessat et ipsa lex. There was no entry of the continuances where the trial was had of the Term wherein issue was joined.*

In form this plea pursues the precedents in Phillips v. Berryman (c); Sedgwick v. Overend (d); Pitt v. Knight (e); Nesbitt v. Howe (f). The novelty of the plea is no fatal objection: Prince v. Nicholson (g); Ogden v. Waters (h); Bac. Ab. tit. E. Plea, e. 480. There are some pleas which may be pleaded at Nisi Prius, that cannot properly be termed pleas puis darrein continuance, because the matter pleaded need not be expressly mentioned to have happened after the last continuance: Buller 310 a: Thel. Dig. 204; Bro. Continuance, 57.

Secondly. The plea is good in substance. On execution of the writ of replevin, the beasts distrained are actually returned to the plaintiff, so that he hath the use and possession of the cattle pending the suit, consequently if the plaintiff in replevin hath judgment, it can only be for damages; and if there be a verdict for the plaintiff, the jury on that verdict ascertain the damages sustained by the plaintiff in the unjust caption and detention of the goods, and also the costs of suit: 6 Bac. Ab. tit. Replevin, 83; Woodfall's Landlord and Tenant, 726. Thelwall in his Digest asserts "that if a man sues out replevin of his cattle taken, and has deliverance, he "cannot have an action of trespass vi et armis for the same taking; "and such a plea was held good": Thel. Dig., D. bk. 11, c. 38, s. 39, citing H. 5, H. 4, 2; 38 E. 3, 41; 17 E. 3. 58; 46 E. 3, 26. Comyn, citing this passage, says, "A recovery in replevin is a bar in trespass for the same taking :" Com. Dig. tit. Action, K. p. 235.

*

Vide, form of entry of issue in Tidd's Forms, and Boote's Suit at Law.

Common Pleas.

ATKINSON

v. NESBITT.

A recovery in trespass is a bar to trover for the same goods: E. T. 1847. Com. Dig. tit. Action, K. 3; even though without execution (a). If plaintiff meant to have controverted that the recovery was for the same cause, his course is prescribed by Lacon v. Barnard (b). Here the identity is admitted by the demurrer: Letchmere v. Toplady (c); 6 Bac. Ab. tit. Plea H. 7th ed., (Judgment recovered). This case falls within the maxim "Nemo bis vexari debet si constat curiæ quod sit pro unâ et eâdem causá." Phillips v. Berryman (d), and Kitchen v. Wilson (e), were also mentioned.

It was not imperative upon the defendant to have pleaded this matter in abatement, as the words of Holt, C. J. show (f). The attributes of a plea in abatement are totally different: 1 Chitty on Pleading, 481, 697. How can it be said that this plea gives the plaintiff a better writ or bill?

Lastly. If the plea be faulty, it is open to the defendant to fall back upon any defect apparent upon the plaintiff's pleading. The first count states a taking, detaining and impounding, and that thereby the goods were damaged, lessened in valued and spoiled. The plea applies only to the taking, detaining and impounding; but says nothing as to the damaging, lessening in value and spoiling. The plaintiff, by demurring, without marking judgment of nil dicit as to the part unanswered, has discontinued the whole action. This is error on the record: Stephen on Pleading, 242, 5th ed.; Watts v. King (g); 5 Vin. Ab. 481, 482, 483, E. 4; Cochrane v. Fitzpatrick (h).

The Court having intimated an opinion that the award of respite to the jury entered in the jury process amounted to a continuance

Foley contended that, at the utmost, it could only be considered a dies datus.

Fitzgibbon, on the same side.

The Court seems to feel a difficulty as to this being a good plea in substance, because it doubts that substantial damages can be recovered in replevin. The plaintiff claimed damages to a large amount in the replevin suit; why should he be permitted to bring a second action to recover damages laid and recovered in the first?

(a) Yelv. 67; Cro. Jac. 73.

(b) 3 Cro. Car.; S. C. Hutton, 81. (c) 2 Vent. 169; S. C. 1 Shower, 146.

(d) 3 Doug. 289.

(e) 3 Wils. 304.

(f) Comb. 357, et vide 6 Bac. Ab. tit. Plea. I (judgment recovered), 7th ed.

April 22.

V. NESBITT.

E. T. 1847. The damages then recovered are not nominal, the expenses of the Common Pleas. replevin bond are loss sustained by the owner of the goods, being, in ATKINSON fact, damages incidental to the taking; there cannot be another action for the direct damage; circuity of action the law abhors[TORRENS, J. In ejectment substantial damages are not recoverable, and the party is put to his action for mesne rates.]—The sole object of ejectment is to recover the possession of the land.-[JACKSON, J. So is it the object of replevin to recover the possession of the goods.]In ejectment the plaintiff is nominal; who of the many lessors of the plaintiff would be entitled to the damages?-[JACKSON, J. The answer with respect to the four pounds damages seems to be that the party bringing an action of trespass could not therein recover the costs of the replevin bond; therefore, the Courts have deemed it to be only fair to give him the costs of the replevin bond as damages in the replevin suit].

Workman, in reply.

The affidavit cannot be read in support of the plea; the plaintiff could not have traversed matter partly in the plea and partly in the affidavit. The result of the arguments on the other side would be the abolition of pleas puis darrein continuance altogether. The change in the practice by giving £4 damages instead of 6d, as formerly, arose from an alteration in the Stamp Duties affecting replevin bonds. The passage in Thelwall's Digest may be referred to replevin in the detinet. As to the discontinuance-How could we enter judgment of nil dicit on a mere averment of special damage?— [JACKSON, J. If this be a discontinuance, I venture to say there never yet was an action of libel brought to an issue in which there has not been a discontinuance; the declaration in libel constantly stating numerous matters of aggravation which are never noticed in the pleas and the same may be said of various other actions on the case and of trespass].

Cur. ad. vult.

April 23.

TORRENS, J.

my

In this case I am about to deliver the opinion to which Brother JACKSON and I have arrived, upon full discussion. This is an action of trespass, brought by the plaintiff against the defendant, for having seized certain articles, and detaining and impounding them for a long space of time, and then follows the consequential injury, "and "thereby the same then and there became and were greatly damaged, "lessened in value and spoiled, to wit at," &c. I read that averment in the declaration at this part of the judgment, because when I come

Common Pleas.

ATKINSON บ.

NESBITT.

to the discussion of the third point it will be necessary to advert to E. T. 1847. that particular statement; but I shall take the case in its order as entered in the demurrer book, and afterwards recur to the point now first raised during the argument, to see whether it can be sustained. To the declaration filed the defendant pleads in bar, a replication is filed, and issue is joined, and that issue appears to be joined on the 18th of November of that Term. The record then states that the venire issued to the Sheriff, and there is a habeas corpora juratorum, and a day is given for the appearance of the jury, being the 11th of January.

Issue being joined, the case was called on for trial on the 12th of January, and, instead of proceeding to a trial of that issue, a plea is put in, to which I have some difficulty in giving a name, it having the quality of a plea puis darrein continuance, without its essence or usual prescribed form; that is, a plea that, after the cause of action accrued to the plaintiff, something had occurred which barred her from further maintaining her action against the defendant; this plea is not entitled as a plea puis darrein continuance; i. e., it has not the title of such a plea nor the essence of such a plea, so far as we can discern from the precedents and practice. In excuse for the absence of an averment puis darrein continuance, the impossibility of stating a continuance has been strongly relied upon on the part of the defendant. Upon examining this record, we find in the jury process an award of further respite to the jury, which we are of opinion is such a proceeding in the cause as would enable the party to plead a plea puis darrein continuance after issue had been joined. We are of opinion that he might truly have pleaded such a plea after that award, and that he might have safely averred that to be the last continuance.

This being so, we are now led to a discussion whether this plea is sustainable; and, in looking to that, we find it deficient in all the qualities which such a plea should possess, not only as to time, but widely differing from all the forms. What Serjeant Stephen says, establishes that continuances may be from day to day, and also affords a precedent as to the form, which follows the elementary doctrine, and is to be found likewise in Buller's Nisi Prius, no mean authority. Stephen says:-"By the ancient practice (very "recently abolished),* where adjournments of the proceedings "took place for certain purposes from one day or one Term to "another, there was always an entry made upon the record express"ing the ground of the adjournment, and appointing the parties to

* This refers to the New Rules in England only.