Chitty, for the plaintiff. The plaintiff is entitled to judgment on the demurrer to the plea to the first count. The ground of action stated in that count is the breach of the covenant to perform the award. The plea shows the award to be void, but admits that the defendant has committed a breach of another covenant set out in the declaration, by which the parties covenanted not to prevent the arbitrators from making their award. In Charnley v. Winstanley,' this court refused to arrest the judgment in an action brought upon an arbitration deed, where one of the parties to the submission had become a feme covert subsequently to the submission and before the award: the breach alleged in the declaration being non-payment of money pursuant to the award, on the ground that it appeared upon the whole record that one of the parties had been guilty of a breach of the covenant not to abide by the award. Le Bret v. Papillon. Now, here it appears by the defendant's plea that he has broken that covenant by revoking the arbitrators' authority, and therefore that case is expressly in point.

ABBOTT, C. J. I am of opinion that the defendant is entitled to judgment upon the demurrer to the plea to the first count of the declaration. The ground of complaint in that count is the non-payment of money pursuant to the award, or, in other words, a breach of the covenant, to perform the award when made. It appears by the plea that the defendant, by countermanding the authority of the arbitrators, has broken the covenant to abide by the award, or that whereby he stipulated not to hinder the arbitrators from making an award; and it is urged on the part of the plaintiff that although this plea is an answer to the cause of action suggested in this count, yet that, inasmuch as it appears upon the whole record that the defendant has been guilty of a breach of covenant, the plaintiff is entitled to judg ment upon that count, and the case of Charnley v. Winstanley1 has been relied upon. That case, however, is very distinguishable from the present. There it appeared upon the face of the plaintiff's count that the award was made after one of the parties to the submission had become a feme covert. Her marriage was in itself a revocation of the authority of the arbitrators, and therefore was a breach of the covenant to abide by the award. In this case, the breach of that covenant is disclosed only by the defendant's plea, and it never has been held that a plaintiff who seeks to recover damages for one ground of action stated in his count is entitled to recover in respect of another disclosed by the defendant's plea. I am of opinion that a plaintiff can recover only in respect of the ground of action stated in his declaration.

1 5 East, 266.

Judgment for the defendant upon the demurrer to the plea to the first count.

24 East, 502.

3 Butt's Case, 7 Rep. 24 b, 25 a; Head v. Baldrey, 6 A. & E. 459, 468; Grant . Burgwyn, 88 N. Ca. 95; Johnson v. Finch, 93 N. Ca. 205, 209 Accord. See Ins. Co. v. Stanton, 57 Ill. 359.-ED.

BROOKE v. BROOKE AND OTHERS.

IN THE KING'S BENCH, EASTER TERM, 1664.

[Reported in 1 Siderfin, 184.]

In trespass for taking a hook, etc., the defendant pleaded that he had a way to such a wood across the land of the plaintiff, that he was passing there, and that the plaintiff endeavored to cut his harness and to wound him with the said hook, wherefore he took the said hook out of the hands of the plaintiff, and delivered it to the constable, etc. Issue upon the way, and verdict for the plaintiff. And it was moved, in arrest of judgment, that the plaintiff had not shown in his declaration that the hook was in his possession. And it was agreed by the court, that if the defendant had pleaded Not guilty, the judgment should be arrested, because the plaintiff does not say in his declaration hamum suum, nor show that it was in his possession. But in this case the court were of opinion that the defendant, by his special plea, made the declaration good, for the defendant pleads that he took the hook extra possessionem of the plaintiff, wherefore the plaintiff may well maintain this action on his possession without any property.1

1 In the principal case the question arose upon a motion in arrest of judgment, and not upon a demurrer. But the rule that a defective pleading may be cured by the subsequent pleading of the adversary applies equally to cases of demurrer, demurrer ore tenus, motions in arrest of judgment and writs of error, as appears from the following cases:

Demurrers. Ridgeway's Case, 3 Rep. 52 a, Poph. 41 s. c.; Cutler v. Southern, 1 Lev. 194, 1 Saund. 116 s. c.; Bamfield v. Bamfield, 1 Sid. 336; Dunning v. Owen, 14 Mass. 157, 162 (semble); White v. Ivy, 13 N. Y. 83; Ayres v. Covill, 18 Barb. 260 (semble); Ellis v. Appleby, 4 R. I. 462, 468; Wood v. Scott, 13 Vt. 42 (replication cures plea).

Demurrers ore tenus. · Carhart v. Oddenkirk, (Colo. Ap. 1905) 79 Pac. R. 303; Jackson v. Powell, (Kan. Ap. 1905) 84 S. W. R. 1132; Vinal v. Richardson, 13 All. 521; Whittemore v. Ware, 101 Mass. 352; Shartle v. Minneapolis, 17 Minn. 308; Cohn v. Husson, 113 N. Y. 662; Garrett v. Trotter, 65 N. Ca. 430; Johnson v. Finch, 93 N. Ca. 205.

Motions in arrest of judgment. — Wilkinson v. Sharland, 10 Ex. 724; Louisville Co. v. Murphy, 9 Bush, 512; Slack v. Lyon, 9 Pick. 62.

But see contra, Badcock v. Atkins, Cro. El. 416; Pelton v. Ward, 3 Cai. 73. Writs of error. — Anon., Dy. 15 a (semble); Drake v. Corderoy, Cro. Car. 288; Osborne v. Brooke, Aleyn, 7; Fitzgerald v. Cragg, Com. 140; Cocks v. Nash, 2 M. & Sc. 434; U. S. v. Morris, 10 Wheat. 246, 286, 287; Knight v. Sharp, 24 Ark. 602; Schenck v. Hartford Co., 71 Cal. 28; Moffat v. Greenwalt, 90 Cal. 368; Cohen v. Knox, 90 Cal. 266; Hegard v. Cal. Co., (California, 1886) 11 Pac. R. 594; Burns v. Cushing, 96 Cal. 669 (semble); Shively v. Semi Tropic Co., 99 Cal. 259; De la Mar v. Hurd, 4 Colo. 442; Limberg v. Higenbotham, 11 Colo. 156; Robinson Co. v. Johnson, 13 Colo. 258 (semble); Wall v. Toomey, 52 Conn. 35; · Wiles v. Lambert, 66 Ind. 494 (semble); Howland Works v. Brown, 13 Bush, 681; Berea College v. Powell, (Ky. 1903) 77 S. W. R. 381; Monson v. St. Paul Co., 34 Minn. 269; Garth r. Caldwell, 72 Mo. 622; Donaldson v. Butler Co., 98 Mo. 163; Henry v. Sneed, 99 Mo. 407; Allen v. Chouteau, 102 Mo. 309; Mendenhall v. Leivy, 45 Mo. Ap. 20; Hershfield v. Aiken, 3 Mont. 442; Hamilton v. Great Falls Co., 17 Mont. 334; Hefferlin v. Carlman, 29 Mont. 139; Haggard v. Wallen, 6 Neb. 271; Hawthorne v. Smith, 3 Nev. 182; Vaughan v. Havens, 8 Johns. 109, 110 (semble); Bate v. Graham, 11 N. Y. 237; Haddon v. Lundy, 59 N. Y. 320; Pearce v. Mason, 78 N. Ca. 37; Erwin v. Shaffer, 9 Oh. St. 43; Drake v. Sworts, 24 Oreg. 198; Zerger r. Sailer, 6 Binn. 24; Sanderson v. Hubbard, 14 Vt. 463; Sengfelder v. Mut. Co., 5 Wash. 121; Goff v. Board, 43 Wis. 55; Kretzer v. Cary, 52 Wis. 374 (semble). Defect cured by traverse and verdict. — Although a statement of claim is demurrable because of the omission of a material allegation, if the defendant instead of demurring pleads

TIPPET AND OTHERS v. MAY AND TWO OTHERS.

IN THE COMMON PLEAS, APRIL 30, 1799.

[Reported in 1 Bosanquet & Puller, 411.]

DECLARATION in assumpsit against three. Two of the defendants pleaded a debt of record by way of set-off, without taking any notice of the third. The plaintiffs replied nul tiel record, and gave a day to produce the record to the two defendants who pleaded, but entered no suggestion on the roll respecting the third.

To this there was a general demurrer and joinder.

Marshall, Serjt., in support of the demurrer. The ground of this demurrer is, that as two of the three defendants have pleaded, and the plaintiffs have given them a day to produce the record, without suggesting anything with respect to the third, the action is discontinued as to him, and that a discontinuance as to one defendant is a discontinuance as to all. It is a settled rule of law that a suit must be continued from its commencement to its conclusion without any chasm; and that any chasm is a discontinuance. In Gilb. Hist. C. P. 155, 158, it is said that if a defendant pleads to part, and says nothing to the other part, and the plaintiff replies to such plea without taking judgment for the part not answered to, it is a discontinuance, because he does not follow his entire demand in the court. So if he demur generally, for he ought to have prayed judgment upon nil dicit for that part. 1 Rol. Abr. fo. 487, 488. And this rule applies not only to the

a denial of the missing averment, and a verdict is found for the plaintiff, the defect in the plaintiff's statement is cured. Jewell v. Mills, 3 Bush, 62; Worthley v. Hammond, 13 Bush, 510; Quaid v. Cornwall, 13 Bush, 601; Main v. Ray, 22 Ky. L. Rep. 250; Ware v. Long, (Ky. 1902) 69 S. W. R. 797; Stivers v. Horne, 62 Mo. 473; Henry v. Sneed, 99 Mo. 407; Allen v. Chouteau, 102 Mo. 309; Murphy v. Phelps, 12 Mont. 531; Dayton Co. v. Kelly, 24 Oh. St. 348, 357; Bruce v. Beall, 100 Tenn. 573.

If, however, the defendant, after pleading such a denial, demurs ore tenus at the trial before the case goes to the jury, the defect in the plaintiff's statement of claim is fatal. Scofield v. Whitelegge, 49 N. Y. 259.

Declaration vitiated by a replication. - A party, by his subsequent pleading, may destroy the effect of his prior good pleading; e. g., a good count in ejectment, followed by a bad plea, may be ruined by a replication disclosing an insufficient title in the plaintiff. Perkins v. Perkins, Hob. 128; Zouch's Case, Godb. 138; Johnson v. Norway, Winch, 37 (semble); Keay v. Goodwin, 16 Mass. 1, 3 (semble).

See also Norton v. Simmes, Moore, 856; Brickhead v. York, Hob., 118, 197; Bonham's Case, 8 Rep. 120 b; Gewen v. Roll, Cro. Jac. 131, 133; Armitt v. Breame, 2 Ld. Ray. 1076, 1080, to the effect that notwithstanding a good declaration upon a bond conditioned to perform an award, followed by a bad plea, the plaintiff will fail if he does allege a breach of the award in his replication. - ED.

1 Herlakenden's Case, 4 Rep. 443; Carrill v. Baker, 1 Brownl. 227; Weeks. Peach, 1 Salk. 179, Holt, 561, 1 Ld. Ray. 679, 2 Lutw, 1218 s. c.; Vincent v. Beston, 1 Ld. Ray. 716; Market v. Johnson, 1 Salk. 180, 2 Ld. Ray. 1121, 11 Mod. 36 s. c.; Wilson v. Dodd, 1 Roll. R. 176, 2 Bulst. 335 s. c.; Dense v. Dense, 1 Roll. 477; Pierce v. Henriques, 7 Mod. 124, 2 Ld. Ray. 841, Far. 124; Woodward v. Robinson, 1 Stra. 302; Wood v. Farr, 5 Bing. N. Ca. 247, 248; Hogan v. Ross, 13 How. 173, 182 (semble); Postmaster-Gen. v. Reeder, 4 Wash.

subject-matter of the cause, but also to the parties. 1 Rol. Abr. fo. 488; Com. Dig. Pleader (W. 3).

Shepherd, Serjt., contra. Though the question immediately in issue on this demurrer be, whether the replication which the plaintiffs have put in be sufficient in law to answer the defendants' plea, still if we can show that the plea itself is bad, they cannot have judgment. Indeed, if we were to amend our replication, the defendants would be under the same difficulty. No authority has been adduced to show that discontinuance is the subject of demurrer.

EYRE, C. J. There is no rule in pleading more certain than that if a party can trace back the vices in the pleadings to the first fault, he has a right to take advantage of it on demurrer. But he cannot ask the judgment of the court unless he appear on the record to be capable of demanding judgment. Now in this case the plaintiffs, having replied to a plea by two of the defendants without taking notice of the third against whom they declared, have made a discontinuance; the cause, therefore, being discontinued, judgment must be given against the plaintiffs, for they are not in a situation to take advantage of the badness of the defendants' plea.1

ROOKE, J. The plaintiffs, not being in court, cannot call upon the court to give them judgment.

Per Curiam. Leave given to amend on payment of costs. C. C. 678; Davis v. Burton, 4 Ill. 41; McCall v. Welsh, 3 Bibb, 289; Flemming v. Hoboken, 40 N. J. 270 Accord.

Mallory v. Matlock, 7 Ala. 757, 760 (semble); Thompson v. Kirkpatrick, 18 Ark. 580; Edwards v. White, 12 Conn. 28; Bayless v. Tousey, 20 Ind. 151 (semble); McWaters v. Draper, 5 T. B. Mon. 494; Frost v. Hammett, 11 Pick. 70 (semble) (Dwight v. Holbrook, 1 All. 560, two counts, demurrer to one, default as to other. Plaintiff may contest demurrer and have verdict for default on the other); Harrison v. Balfour, 13 Miss. 301 (semble); Sterling v. Sherwood, 20 Johns. 206; Hicock v. Coates, 2 Wend. 419; Slocum v. Despard, 8 Wend. 615; Elleridge v. Osborne, 12 Wend. 399; Bettle v. Wilson, 14 Oh. 257; Young v. Fentress, 10 Humph. 151 Contra.

In Vermont there is no discontinuance upon a failure to sign judgment when the adversary's pleading professedly is only a partial answer. Nor is the partial answer treated as a nullity upon a demurrer. The partial answer is effective as far as it goes and the demurrant is entitled to judgment as to the part unanswered. Carpenter v. Briggs, 15 Vt. 34.

So, if issue is taken on the partial plea and verdict goes for the plaintiff, the discontinuance is cured, and the plaintiff will have his judgment. Harvey v. Richards, 1 H. Bl. 644; Wats v. King, Cro. Jac. 353.

There is no discontinuance by a demurrer to a professedly partial plea, if some other plea is pleaded to the whole of the preceding pleading. Gray v. Pinder, 2 B. & P. 427; Clarkson v. Lawson, 6 Bing. 587, 595; Tubb v. Manning, Minor (Ala.) 129; Wells v. Mason, Ill. 84; Richmond Co. v. Farquar, 8 Blackf. 89; Frost v. Hammett, 11 Pick. 70. — Ed. 1 Compare Lockwood v. Nash, 18 C. B. 543.- ED.

CHAPTER II.

DEFAULT.

EAST INDIA CO. v. GLOVER.

AT NISI PRIUS, BEFORE PRATT, C. J., MICHAELMAS TERM, 1725.

[1 Strange, 612.]

THE plaintiffs declared upon a sale of coffee at so much per hundred, which the defendant was to take away by such a time, or answer in damages. There was judgment by default, and on executing a writ of inquiry before Chief Justice Pratt at Guildhall, he refused to let the defendant in to give evidence of fraud on the side of the plaintiffs at the sale, because he said the defendant had admitted the contract to be as the plaintiff had declared, by suffering judgment by default, instead of pleading non assumpsit; and now they were only upon the quantum of damages.1

1 The following cases illustrate the principle that a default, like a demurrer, is a constructive admission of the truth of the adversary's pleading: Bevis r. Lindsell, 2 Stra. 1149; Anon., 3 Wils. 155; Davis v. Holdship, 1 Chitt. 644 n. (a); Green v. Hearne, 3 T. R. 301; Lumsden v. Winter, 8 Q. B. D. 650; Ripley v. Sawyer, 34 W. R. 270; Ripley v. Sawyer, 31 Ch. D. 494; Bagley v. Searle, 56 L. T. Rep. 306, 35 W. R. 404 8. c.; Webster v. Vincent, 77 L. T. Rep. 167; Miller v. U. S., 11 Wall. 268; Oreg. Co. v. Oreg. Co., 28 Fed. 505; McGehee v. Childress, 2 Stew. 506; Cater v. Hunter, 3 Ala. 30; Wash. Co. v. Porter, 128 Ala. 278; Johnson v. Pierce, 12 Ark. 599; Bumpass v. Taggart, 26 Ark. 398; Harlan v. Smith, 6 Cal. 173; People v. County Court, 10 Cal. 19; Rowe v. Table Co., 10 Cal. 441; McGregor v. Shaw, 11 Cal. 47; Hunt v. City, 11 Cal. 250; Hutchings v. Ebeler, 46 Cal. 557; Alexander v. Dow, 108 Cal. 25; Weese v. Barker, 7 Colo. 178; Downing Co. v. Burns, 30 Colo. 283; Shepard v. N. H. Co., 45 Conn. 54; Dexter v. Whitbeck, 46 Conn. 224; Martin v. N. Y. Co., 62 Conn. 331; Bernhard v. Curtis, 75 Conn. 476; Randel v. Chesapeake Co., 1 Harringt. 233; Russ v. Gilbert, 19 Fla. 54; Hellen v. Steinwender, 28 Fla. 191; Greenup v. Woodworth, 1 Ill. 232; Cook v. Skelton, 20 Ill. 107; Peck v. Wilson, 22 Ill. 205; Simmons v. Jenkins, 76 Ill. 479 (no replication); Mass. Co. v. Kellogg, 82 Ill. 614; Tucker v. Hamilton, 108 Ill. 469; Foreman Co. v. Lewis, 191 Ill. 155; Chicago v. English, 198 Ill. 211; Marion Co. v. Lomax, 7 Ind. 406; Hoefgan v. Harrison, 7 Ind. 594; May v. State Bank, 9 Ind. 233; Fisk v. Baker, 47 Ind. 534; Briggs v. Sneghan, 45 Ind. 14; Cravens v. Duncan, 55 Ind. 347; Bash v. Osdol, 75 Ind. 186; McKinney v. State, 101 Ind. 355; Whittey v. Douge, 9 Iowa, 597; Pfantz v. Culver, 13 Iowa, 312; Alexander v. Doran, 13 Iowa, 283 (no replication); Greeley v. Sample, 22 Iowa, 338; Bloomer v. Glendy, 70 Iowa, 757; Brenner v. Bigelow, 8 Kan. 496; State v. Gilmore, 81 Me. 405; Kiersted v. Rogers, 6 Har. & J. 282; Perry v. Goodwin, 6 Mass. 498; Gardner v. Field, 1 Gray, 151; Claiborne v. Planters Bank, 3 Miss. 727; Winn v. Levy, 3 Miss. 902; Moore v. Sanborin, 42 Mo. 490 (no replication); Deroin v. Jennings, 4 Neb. 97; Hardy v. Miller, 11 Neb. 395, 398; Bunting v. Goodman, 1 Nev. 314; Martin v. Dist. Court, 13 Nev. 85; Ewing v. Jennings, 15 Nev. 379; Huntress v. Effingham, 17 N. H. 584; Toppan's Pet. 24 N. H. 43; Willson v. Willson, 25 N. H. 229; Manchester's Pet. 28 N. H. 296; Parker v. Roberts, 63 N. H. 431; Casnett v. Young, 67 N. H. 159; Creamer v. Dikeman, 39 N. J. 197; Gifford v. Thorn, 9 N. J. Eq. 702; Lenney v. Finley, 118 Ga. 427 (pointing out change of Georgia rule by statute in 1895; Southern Co. v. East, (Ga. 1903) 45 S. E. R. 319; Bates v. Loomis, 5 Wend. 134; Foster