Dock, and that having there discharged her cargo, was, just before and at the said time when &c., being removed, and in the course of removal, for the purpose of going out of that dock to a certain dry dock in the port of London to be repaired, and that the said vessel was not, at the said time when &c., otherwise navigating or passing upon

the said river Thames.

Held, First, that the circumstances stated in the replication brought the case within the exception in the 63rd section of the act, and that the owner was not bound to employ a pilot.

Secondly, that the words "wanting a pilot," in the 72nd section, are not to be confined to such vessels as are, by the provisions of the act, bound to take a pilot, but are to be construed as applying to any vessel, the master or owner of which thinks fit to require

one.

Thirdly, that inasmuch as under the 72nd section the pilot could not lawfully refuse to go on board and take charge of any vessel wanting a pilot when required by the owner so to do, he must be considered, when so required and employed, as acting under some of the provisions of the act, and not as the private servant of the owner, and therefore that the owner was protected by the 55th section of the act from his primâ facie liability in respect of the injury occasioned by the act of the pilot, whilst he was so employed by the owner. Lucey v. Ingram, 302

PLEADING.

See ATTORNEY, 2.

BILLS AND NOTES, (2).
DISTRESS.
FERRY.
INFANT.

JOINT STOCK BANKING CO., 1.
LANDLORD AND TENANT, 1.
PRESCRIPTION ACT.

VENDOR AND PURCHASER.

I. Declaration. (1). Duplicity.

Assumpsit. The declaration stated that on &c., the defendant made his bill of exchange, and directed the same three months after date, which period to A. & Co., payable to B. or his order of the suit; that B. then indorsed it to had elapsed before the commencement the plaintiff; that it was presented for acceptance and protested for non-acceptance, of which the defendant had notice; that the bill being wholly unaccepted and unpaid, afterwards &c., when it became due on &c., was presented for payment to A. & Co., who refused to pay the same, whereupon it was protested for non-payment, of all which the defendant had notice. whereas also the said defendant before &c., to wit, on &c., was indebted to

And

the plaintiff &c., on an account stated;

and the defendant, in consideration of

the premises respectively, then, to wit, on the day and year last aforesaid, proseveral sums respectively on request. mised the plaintiff to pay him the said To this declaration there was a demurrer for duplicity and uncertainty :— Held, that whether the first part of

the declaration was considered as two murrable on either of those grounds. counts, or as one only, it was not deGalway v. Rose, [See also II. (3.), post],

II. Pleas in bar. (1). Several pleas.

291

In trespass qu. cl. fr., the defendant pleaded, 1st, not guilty; 2ndly, that the plaintiff was not possessed; 3rdly, that defendant was seised in fee; 4thly, that A. B. was seised in fee, and that the defendant, by his command, committed the trespass complained of, &c. A summons having been taken out to strike out the 3rd and 4th pleas, the Judge refused to make any order, whereupon an application for that purpose was made to this Court:-Held, that

the 3rd and 4th pleas might be pleaded | together with the 2nd, as they were not necessarily founded on the same ground of answer or defence, within R. G., H. T., 4 Will. 4, s. 6.

Quare, whether such an appeal lies to the Court, where the Judge at chambers has refused to make any order. Morse v. Apperley, 145

(2). Issuable Pleas, what are. A plea to an action by the holder of a cheque, that the consideration for the making of it was money won by a third party of the defendant at hazard, in a common gaming-house, is not an issuable plea, within the meaning of an order to plead issuably. Humphreys v. The Earl of Waldegrave,

622

(3). When bad as amounting to Ge

neral Issue.

In an action on the case against the sheriff, the declaration stated a judgment recovered against one R. W., the delivery to the sheriff of a writ of fi. fa. issued upon this judgment, indorsed to levy &c.; that the sheriff seized the goods of R. W. within his bailiwick, and remained in possession of them for a long time, during which he might and ought to have sold them, yet that he neglected the execution of his office, and forbore to sell, and afterwards falsely returned that the goods remained in his possession for want of buyers. To this declaration the defendant pleaded-1st, that he did not take in execution any goods of R. W., or remain in possession by virtue of the said writ for the said space of time, or any part thereof; 2ndly, that he could not, nor might, nor ought to have sold the said goods, or any of them, under or by virtue of the said writ, or to have raised thereout the monies indorsed to be levied, within the space of time in the declaration mentioned; 3rdly, that R. W. became a bankrupt, and that within two months after the issuing of the writ in the declaration mentioned,

and the delivery thereof to the defendant, and of the seizure of the goods, and before the passing of the 2 & 3 Vict. c. 29, and before the defendant could or ought to have sold the said goods, a fiat issued, and the said R.W. was declared a bankrupt; and that, before the commencement of the action, an official assignee was appointed, in whom the said goods so taken in execution became and were vested.

Held, that the first plea was bad for duplicity; that the second plea was bad, as amounting to the general issue; and that the third was bad, as being an argumentative denial of the seizure of the goods of R. W. Rowe v. Ames, 747

although the plaintiff gives evidence aliunde to fix one of the defendants with liability to a greater amount. Stapleton v. Nowell, 9

2. To a declaration in debt, containing a count upon a bill of exchange for 331. 3s. 9d., with counts for goods sold, and upon an account stated, each in the sum of £70, and demanding in the usual form the sum of 173l. 3s. 9d., the defendants pleaded, except as to £20, parcel of the sum of 1737. 3s. 9d. in the declaration demanded, and for the payment of which said sum of £20 the plaintiff has given the defendant credit in his particulars of demand, actionem non, because the defendants now bring into Court the sum of 137. 12s., ready to be paid to the plaintiff, and they further say that they were never indebted to the plaintiff to a greater amount than the said sum of 137. 12s. in the introductory part of this plea mentioned:-Held, that the plea was bad on special demurrer; that it ought to have shewn some answer as to part, and pleaded payment into Court as to the residue. Armfield v. Burgin,

281

(6). Failure of Consideration. Plea, to an action by drawer against an acceptor of a bill of exchange for 201. 8s. 6d., that before the drawing and acceptance of the bill, it was agreed between the plaintiff and defendant that the plaintiff should do certain carpenter's work for the defendant for £63; that the defendant paid the plaintiff £43, in part payment of the £63, and afterwards accepted the bill of exchange, on account of the residue of the £63; that the plaintiff did not perform his agreement, but neglected to perform some work, and performed in an unworkmanlike manner other work, necessary to be done under the agreement; and that the £43 was more than the whole work

done was worth :-Held bad, on motion for judgment non obstante veredicto, as disclosing, not a total failure of consideration for the bill, but only a partial failure of the consideration, to which the money payment and the bill were alike applicable. Trickey v. Larne, 278

(7). In Debt.

Debt for goods sold and delivered and on an account stated. The particulars claimed 97. 17s. 6d. The defendant pleaded, as to all except two sums of 11. Os. 6d. and 8l. 178., nunquam indebitatus; as to 17. Os. 6d., payment into Court; and as to Sl. 178., a set-off. Issue on the first and third pleas; the plaintiff took out of Court the money paid in under the second. Semble, that upon this record the plaintiff had nothing to prove, and that the only issue was on the defendant. Newhall v. Holt, 662

(8). In Detinue.

The plea of non detinet merely puts in issue the fact of detention. If the defence be that the plaintiff was not possessed of the goods, or that the defendant was justified in detaining them, such a defence ought to be specially pleaded. Richards v. Frankum,

420

(9). In Actions on Bills and Notes.

Plea, to an action of debt by the payee against the maker of a promissory note payable on demand, that the note was given as and for the purchase-money to be paid to the plaintiff for land agreed to be sold by the plaintiff to the defendant, and that no memorandum or note of the contract in writing was signed by the defendant, or any person lawfully authorized by him; and that there was not any consideration or value for the making or payment of the note, except as aforesaid:-Held bad on general demurrer.

the time of the plea pleaded, which was immaterial. Basan v. Arnold,

559

(1). De injurid. To an action on a bill of exchange by the indorsee against the acceptor, the defendant pleaded, that the bill was drawn and accepted for the accommodation of B.; that B. indorsed and delivered it to the plaintiff, in order that he the plaintiff should discount it and pay the value to B., but that the plaintiff did not discount it or pay the value to B., or to the drawer, or to the defendant. To this plea the plaintiff replied, de injuriâ:-Held, that the replication was good, inasmuch as the plea amounted to matter of excuse for the nonpayment of the

bill.

Re

The defendant pleaded, also, that after the indorsement and before the commencement of the suit, the plaintiff indorsed and delivered the bill to a person, whose name is to the defendant unknown; and the defendant then became, and still is, liable to pay the amount to the said person to whom it was so indorsed, and who from the time of that indorsement hitherto has been and is the holder thereof. plication, that at the time of the commencement of this suit the plaintiff was, and still is, the holder of the said bill; without this, that any other person is the holder thereof, in manner and form as in that plea is alleged :Held, that this replication was bad, as the traverse was too large, and put in issue the plaintiff's being the holder of the bill, not only at the time of the commencement of the suit, but also at

VOL. VI.

ation.

1. In trover, the declaration alleged that the plaintiff was lawfully possessed of the goods "as of his own property;" and the replication, in answer to a special plea in justification, set up a right to the possession of them in renot a departure. spect of a lien :-Held, that this was [and see ante, II. (9)], Legg v. Evans,

36 2. Declaration in covenant by A., the surviving lessor in a lease for years, granted by A., B., and C., to and leave in repair, assigning breaches the defendant, on a covenant to repair in not repairing, and in not leaving in that A., B., and C., from the time of repair at the end of the term. Plea, making the demise until the death of B., and A. and C. afterwards, had a reversion for a longer term of years, B.'s death, and before any breach of expectant on the lease, and that after version to D., and thenceforward ceased covenant, A. and C. assigned such redemised premises. to have any reversion or interest in the A., B., and C. were not until the Replication, that death of B., nor were A. and C. afterwards, possessed of the said reversion in the demised premises, in manner and form as alleged in the plea:-Held bad, on demurrer, as being a departure from the declaration. Green v. James,

IV. Similiter. Dating.

656

1. The plaintiff alleged as an excuse for not making profert of a deed, that it was "in the possession of certain persons, to wit, J.B. H., & T. H., who before and at the time of the commencement of the suit, and thence hitherto, have held and still hold the same by agreement theretofore in that behalf made between the plaintiff and the defendant:"-Held, that this was not a sufficient excuse for the want of profert, as it did not allege that the party who had possession of the deed had refused to produce it. Marsden,

Hill v. 718

and release, profert must be made of the release. Jenkin v. Peace, 722

POUND BREACH.

See DISTRESS.

PRACTICE.

See JUDGE'S Order.
PARTICULARS.
PROCESS.

1. Deposit in Lieu of Bail. Where a defendant, on being held to bail under a Judge's order, deposits with the sheriff the amount indorsed on the writ, and 10l. for costs, under the

43 Geo. 3, c. 46, s. 2, and afterwards allows those sums, with an additional 10., to be paid into Court, the plaintiff is not entitled to have the two former sums paid out to him. Scherwinski v. Peronnet,

90

2. Service of rule. Service of a rule by giving it to the defendant's servant at his warehouse, that being his usual place of business, held insufficient. İbotson v. Phelps,

626

3. Service of Judge's Order. A party obtaining a Judge's order ought to serve it "forthwith," i. e.,before the opposite party can take the next step. And where a party, at 5 o'clock on the day before the time for joining in demurrer expired, obtained an order for three days' time to join in demurrer, which was not served until two o'clock on the following day, and the plaintiff had signed judgment at the opening of the office at 11 o'clock on the same morning:-Held, that the order had been served too late. Kenney v. Hutchinson, 134

4. Staying Proceedings.