To this, one answer that is attempted to be set up is, that the plea may be severed, and treated as applicable to the first count only; but to this I reply that, though true it is, that some pleas are in their nature severable and distributive, as, for instance, where there are several counts in assumpsit, the general issue may be distributed and considered applicable to each count, so as to meet the finding of the jury upon the different issues that may be raised;-yet that, where, in answer to the whole action, a document is produced-which, though not indeed a record according to our law, is still a solemn proceeding in a foreign court, evidenced by the seal of that court-we cannot say that a plea, which sets up [90] that document as an answer to the whole action, is divisible, and take it as applicable to one part of the action only. Then again, it is said that we might amend the plea in this case. But I do not think we could amend the issue so as to make the plea apply to the first count only, and thereby occasion a different set of issues. Upon the whole, therefore, I think the verdict must be entered for the plaintiff upon this issue, as the defendant has failed to make it out affirmatively.

COLTMAN J. The answer set up by this plea is, not that there was no reasonable cause of action in justice or honesty on the part of the plaintiff'; it is merely in the nature of a technical answer, and therefore it ought, I think, to be strictly proved. On the best consideration I have been able to give this case, it appears to me, that the suit in the court of Commerce at Koenigsberg, was not brought for the same cause of action as the action now before this court. The proceedings in the foreign court appear to be either very imperfect in their nature, or not to be fully before us. The suit in the Prussian court seems to be rather for the rescission of the contract; while the present action is for damages resulting from a breach of that contract. Now it seems clear that a party may not be entitled to rescind a contract, and yet may be entitled to an action for the breach of it. Upon this ground, therefore, I think the plea is no answer to this action.

With respect to the point that has been raised as to the amendment of the plea, I think that no favour or stretch of authority is to be shewn, or made on behalf of a party who is seeking to withdraw his case from our jurisdiction; and that if we even had the power to amend, we are not called upon to exercise it in this case, or to make any extraordinary exertion on his account.

[91] Upon the whole, I think the defendant has failed on this issue, and that the rule for entering the verdict for him thereon must be discharged.

ERSKINE J. I am of the same opinion. In discussing this question I think we have nothing to do with what the effect of the foreign judgment may be in this country. The issue is, whether such judgment, as stated in the plea, is final and conclusive between the parties, as to the two causes of action mentioned in the two counts in the declaration. If the defendant had made that out, in point of fact, he would undoubtedly have succeeded; and the onus lay upon him to shew that there had been a final and conclusive judgment such as he alleges. It does not appear upon the record in this action, that the foreign judgment operated as a bar by limitation. It is pleaded as a final and conclusive judgment between the parties. The question then is, whether the defendant has made out the affirmative of this issue. Even assuming that the foreign judgment put in evidence is a final and conclusive judgment, the question still is, whether it is such a judgment as is mentioned in the plea, namely, a judgment as to the identical causes of action mentioned in the first and second counts of this declaration. Now we must look to the judgment and see if it is what it is alleged to be. I confess it does not appear to me a judgment for either of these causes of action. The suit in the foreign court appears rather to be founded upon a promise by the defendant to repay the plaintiff a sum of money; which is a very different cause of action from either of those set forth in the first two counts of this declaration. But that is not the ground of objection. The plea states a judgment recovered in respect of two distinct promises; the judgment appears to be in respect of one promise only, and to have no reference [92] whatever to any agreement or duty on the part of the defendant with regard to the shipment or stowage of the tares. The judgment, therefore, does not in my opinion support the plea, inasmuch as it appears to be for, at any rate, a very different cause of action from that set forth in the second count of this declaration.

The next point is, whether or not we can take this plea distributively, so as to apply it to the first count only. But the defendant was bound, I think, to state the

legal effect of the judgment, and he states it as applicable in law to both counts in the declaration. For the reason just given, it does not however appear to me that the judgment can be considered as a bar to the cause of action mentioned in the second count. There is, therefore, a variance between the statement in the plea, and the legal effect of the document produced to support it.

We are then asked to amend the plea; but I think we ought not to do so. I agree with my brother Coltman that it would be unjust to do so in a case where there is no real answer put forth upon the merits. And even if we did amend, the plaintiff must have the opportunity of raising the question, whether the foreign judgment is conclusive as a bar to an action in this country; and I think, for such a purpose, we ought not to assume a power which it is by no means clear that we possess.

CRESSWELL J. I quite agree that the present rule for entering a verdict for the defendant on this issue must be discharged.

I

A distinct question is raised by the issue, whether there has been any final and conclusive judgment between these parties delivered by the court of Commerce in Prussia, on the causes of action in the first and second counts in this declaration. cannot myself see [93] that the judgment was in respect of either of those causes of action. With regard to the first count, it may be that there was, or that there was not, such a judgment; all that I say is, that I do not myself see that there was. Looking at that which was properly the judgment produced, it speaks of the claim of the plaintiff against the defendant, on account of a cargo of 917 quarters of tares received in the year 1837, by the ship 'Mary Swan"" (ante, 74); but this is so vague and uncertain, that I cannot say what was the nature of that claim, or what the object of that suit; it may have been to rescind the contract, or it may have been for damages in respect of the nonfulfilment of the contract. To my apprehension, it is not clearly applicable to the cause of action in the first count of this declaration. Some years ago it was supposed in our courts, that if an article sold did not correspond with a warranty, the purchaser might either rescind the contract, and sue the vendor for the recovery of the purchase money, in an action for money had and received; or sue for damages occasioned by the breach of the contract (b). Now, it rather appears, that this suit in the foreign court was something of the former class; for in what is set out in the document produced as an appendage to the judgment, and called the "Reasons" of the court, it is stated that when the "Mary Swan arrived in London, the plaintiff "examined the tares and found they were in so bad a state, that he thought himself entitled to refuse the receipt thereof;" and immediately afterwards he informed the defendant "of his refusal to receive the tares" "and repeatedly declared that he declined the receipt of the tares;" and then it further appears, that one of the points upon which the plaintiff prays judgment in the [94] foreign court, is that he may "be entitled to refuse receipt" of the tares. It seems, therefore, that this suit was to rescind the contract, rather than a suit for damages.

But even supposing that this judgment does apply to the cause of action set forth in the first count, we must then look to the second count; and there is clearly nothing in this judgment, that points to any negligence in shipping the tares, which is the cause of action in the second count. The plea says, the foreign judgment goes to the whole cause of action; but when it is produced, it does not appear to do so; it does not therefore support the allegation in the plea.

But then it is said, that the judge at nisi prius might have amended, and that the court, being considered in the same situation as the judge, may also exercise that power; but we can only amend as to the variance, by altering the statement in the plea, that the foreign judgment was for both of the causes of action mentioned in the first and second counts. If we did so, however, we should only make it a bad plea; for it would then be pleaded to both counts, and would, on the face of it, apply only

to one.

Rule discharged.

(b) Vide Street v. Blay, 2 B. & Ad. 456.

[95] WHITE v. NICHOLSON, Executor of Harriett Reeves, Deceased. April 28, 1842.

[S. C. 4 Scott, N. R. 707; 11 L. J. C. P. 264.]

By an agreement made and dated 31st May, A. let to B. a house at "801. a year, payable quarterly, to commence from the 29th September next." B. agreed to take the fixtures at a valuation. The following memorandum was at the foot of the agreement:" A. agrees to take the fixtures again at the expiration of the tenancy, provided they are in as good condition then as they now are; and B. agrees to leave the premises in the same state as they now are." Though not so stated in the agreement, the house was, at the time of the making of that agreement, in the occupation of C.-as tenant to A.,-who quitted on the 26th of September :-Held, first, that notwithstanding the existence of express terms of agreement (b), an implied contract arose on the part of B. to use the premises in a tenant-like manner; and secondly, that the agreement supported the allegation of a promise to deliver up the premises in the same state as they were in at the commencement of the tenancy.

Assumpsit. The declaration stated, that, in consideration that Harriett Reeves, at her request (a), then had become and then was tenant, to wit, as tenant from year to year, to the plaintiff, of a certain messuage and premises with the appurtenances, upon and subject to the terms that the said H. R. should use the said messuage and premises during the said tenancy, in a tenant-like and proper manner, and should, at the expiration thereof, leave the said messuage and premises in the same state as the same were in at the time of the commencement of the said tenancy, the said H. R. promised the plaintiff to use the said messuage and premises in a tenant-like and proper manner during the said tenancy, and to leave the same, at the expiration thereof, in the same state as the same were in at the [96] commencement of the said tenancy. Averment: that the tenancy continued to the time of the death of H. R. and long afterwards, and was duly determined by a certain notice from the defendant, as executor, to the plaintiff. Breach: that H. R. in her lifetime did not use the messuage and premises in a tenant-like or a proper manner, but, on the contrary, used them in so untenant-like and improper a manner that they became and were ruinous, &c.; and that the defendant, as executor, after the death of H. R., did not, upon the expiration of the said term, or at any other time, leave the said messuage and premises in the same state as the same were in at the commencement of the said tenancy, but, on the contrary thereof, on the said expiration of the said tenancy, to wit, on, &c., left the said messuage and premises in a much worse state than the same were in at the said commencement of the said tenancy, and left the doors, windows, &c. greatly dilapidated, &c.

Pleas: first, non assumpsit.

Secondly, as to the first breach, that H. R. did not use the premises in an untenant-like or improper manner.

Thirdly, to the second breach, that, at the expiration of the said tenancy, the defendant left the premises in the same state as they were in at the commencement of the said tenancy.

At the trial before Erskine J., at the sittings at London, after last Hilary term, the following agreement was given in evidence.

"Memorandum of an agreement, made and entered into, the 31st day of August 1838, between Nicholas White of, &c. of the one part, and Harriett Reeves of, &c. of the other part, as follows: N. W. agrees to let, and H. R. agrees to take a house and premises, No., &c., late in the occupation of S. Seabrook, at the clear net rent of 801.

(b) Vide Shepherd v. Pybus, ante, vol. iii.

(a) The allegation of request appears to be unnecessary; as the consideration stated is not a benefit conferred on the defendant, (which, in the absence of an antecedent request, would be taken to have proceeded from the plaintiff spontaneously, as a mere gratuitous benefit), but an agreement for a tenancy, from which both parties, or if not the plaintiff (as in the declaration no rent is mentioned or alluded to), at least the defendant, would derive advantage.

per year, payable quarterly, to com-[97]-mence from the 29th day of September next, and the first quarter's rent to become due and payable on the 25th day of December next. The said H. R. to pay all rates, taxes, and assessments assessed upon the premises. The said H. R. also agrees to take the fixtures at a fair valuation in the usual way; and it is hereby agreed by the said parties, that if either of them is desirous of putting an end to the tenancy, a proper notice in writing must be given for that purpose.

Witness, &c.

"N. White agrees to take the fixtures again at the expiration of Mrs. Reeves's tenancy, and to allow the price at which they may be valued, provided they are in as good condition then as they now are; and Mrs. Reeves agrees to leave the premises in the same state as they now are. NICHOLAS WHITE, "HARRIET REEVES."

"(Signed)

Another tenant was in possession at the time the agreement was entered into, who did not quit till the 26th of September.

It was objected, on behalf of the defendant, first, that the clause at the end of the agreement being in special terms, the implied contract to use the premises in a tenantlike manner did not arise; and, secondly, that the agreement proved did not support the promise as laid in the declaration; inasmuch as the former was, to leave the premises "in the same state as they now are," viz. on the 31st of August, the date of the agreement; and the latter was, to leave them "in the same state as they were in at the commencement of the tenancy," viz. the 29th of September. The learned judge offered to amend; but this was declined on the part of the plaintiff. Both points were reserved for the consideration of the court; and it was agreed that the court might make any amend-[98]-ment that a judge at nisi prius might have made. The jury returned a verdict for the plaintiff, with nominal damages.

Bompas Serjt. now moved to enter a nonsuit, and renewed the objections taken at the trial.

Upon the second point the court granted a rule nisi, against which

Channell Serjt. now shewed cause. The tenancy, in fact, commenced on the 31st of August, the date of the agreement, inasmuch as it contained words of present demise. The reference to the 29th of September in the agreement related to the payment of rent; and the words "to commence" should be read "to commence to be paid." If the tenancy was not to commence till the 29th of September, the word "now" may be construed to mean "at the commencement of the tenancy," as it would be absurd to suppose the testatrix would have undertaken to leave the premises in the state they were in on the 31st of August, if she was not to have possession till the 29th of September.

Bompas Serjt., in support of the rule.

As the rent did not commence until the 29th of September, it was equally absurd to suppose that the testatrix was to have the premises from the 31st of August to Michaelmas for nothing. There was no valuation of the fixtures at the time of the agreement. It is therefore clear that the tenancy did not commence then. It might be an improvident agreement on her part; but it was distinctly stipulated that her tenancy was to commence on the 29th of September, and that she would keep the premises in the same state they were in on the 31st of August.

TINDAL C. J. I cannot help thinking that the good sense of the agreement is, that the parties must have [99] referred to the state of the premises at the time of the commencement of the term. That would be an agreement consistent with the tenant's own enjoyment of the premises; and this interpretation would get rid of the difficulty that would otherwise arise as to injuries which might be done to the premises in the mean time by the tenant then in possession. Upon the whole, therefore, I think it is not too much to say that the parties were stipulating as to the commencement of the term, as they were clearly speaking in a very general way. And, looking at the whole of the clause at the end of the agreement, I think the word "now" may fairly be taken to refer to the commencement of the term. The plaintiff thereby "agrees to take the fixtures again at the expiration of Mrs. Reeves's tenancy, and to allow the price at which they may be valued, provided they are in as good condition then as they now are; and Mrs. Reeves agrees to leave the premises in the same state as they now are." The word "then" clearly means the period of the determination of the C. P. XII.-2*

term, and it is used in opposition to the word "now," which, I think, may mean the commencement of the term. The statement in the declaration therefore appears to be right and proper, and there is no variance.

COLTMAN J. I am of the same opinion. I think the party agreeing to take the premises must have meant that she would deliver them up in the same state as they were in when she entered upon them that would be a natural agreement. Otherwise, if the party in possession at the time of the agreement, had pulled down the house before Michaelmas, the testatrix would have been liable. The parties, to be sure, are, to a certain degree, fettered by the use of the word "now," and we could not easily give the proposed meaning to that word, but for its being used in opposition to the word [100]" then," which clearly indicates the determination of the term. Upon the whole, therefore, I think the word "now" may fairly mean the time when the party was to commence the enjoyment of the premises.

ERSKINE J. I own I did not think at the trial that the agreement could bear that interpretation, and I have some difficulty in thinking so now; but I believe justice will be done by adopting it, and it will probably carry out the real meaning of the parties.

CRESSWELL J. I am inclined to think that the agreement may bear the construction put upon it by the rest of the court. It appears that the fixtures are not to be taken until the commencement of the tenancy; and they, also, at the end of the term, are to be given up in as good condition "then as they now are: that would seem to shew that the word "now" must refer to the commencement of the tenancy. Rule discharged.

April 22, 1842.

[101] STURTEVANT v. FORD. [S. C. 4 Scott, N. R. 668; 11 L. J. C. P. 245. Discussed, In re Overend Gurney and Company, 1868, L. R. 6 Eq. 359.]

A plea by the acceptor of a bill, to an action by the indorsee, that the bill was accepted before it became due, at the request and for the accommodation of J. S., and without any value or consideration for the acceptance or for the payment; and that the bill was indorsed to the plaintiff after it became due, is bad.

Assumpsit by the indorsee against the acceptor of a bill of exchange drawn by J. Ayres for 2431. 7s. 8d., dated 17th of August 1838, payable in London (a), for value received in iron.

Fourth plea, that the bill was accepted by the defendant before the same became due or payable, at the request and for the accommodation of Ayres, and without any value or consideration whatever for the acceptance thereof or for the payment thereof; and that the said bill was so indorsed to the plaintiff as in the said declaration mentioned, two years after the same had become due and payable, according to the tenor and effect thereof. Verification.

Special demurrer, assigning for cause, that it is not averred or shewn in the said plea that the defendant accepted the said bill upon the terms that the same should not be indorsed or negotiated by Ayres after it became due; that the said plea does not allege that the plaintiff had notice of the premises or any of them in that plea mentioned, before or at the time the said bill was indorsed to him, or that the defendant ever required Ayres not to indorse the bill after it became due.

Joinder in demurrer.

[102] Channel Serjt. in support of the demurrer. The plea does not state that the plaintiff is not a holder for value, and it must be therefore taken upon the record that the plaintiff is a holder for value. Neither does the plea state that, before the plaintiff became the indorsee of the bill, he had notice that the bill was drawn for the accommodation of the drawer and without value. It does not shew that the drawer was under any restriction as to indorsing a bill after it became due. The question to

(a) As to the effect of the insertion of the words "in London" in the body of the bill, see Selby v. Eden, 3 Bingh. 611, 11 B. Moore, 511; Fayle v. Bird, 6 B. & C. 531, 9 Dowl. & Ryl. 639, 2 Carr. & P. 303; Gibb v. Mather, in Error, 8 Bingh. 214, 2 Cro. & Jerv. 254, 2 Tyrwh. 189, 1 Mo. & Scott, 387, ante, 10, n.