1842. BONZI V. STEWART. are not traversed, are admitted; even though denied by a protestando, they would not have been put in issue, but would have been admitted for the purposes of this cause. Lord Coke says, protestation is an exclusion of a conclusion, that a party to an action may by pleading incur. (a) The doctrine established by Harington v. Macmorris (b), and Montgomery v. Richardson (c), that one part of a record cannot be used as an admission on another part, is not disputed. (d) But where a distinct and substantive pleading contains several allegations, and issue is tendered and taken as to one only, all the traversable allegations that are not traversed, must be taken as admitted; Com. Dig. Pleader, (G. 2.). In Cowlishaw v. Cheslyn (e), which was an action of trespass quare clausum fregit, the defendant pleaded that A. C. was seised in fee, and being so seised, granted a right of way by a lost deed. The plaintiff replied that A. C. did not grant, modo et formâ : and it was held, that on these pleadings, it was not competent for the plaintiff to give evidence to shew that A. C. was not seised in fee, for the purpose of rebutting the presumption of the grant. The allegation in the present case, of the possession of the dock-warrants by Douglas, Anderson and Co., is either material, or it is not; if not material, cadit quæstio; if it be material, it is not put in issue it might have been traversed, and not having been so, it is admitted, and it is not therefore open to the plaintiffs to contradict the statement by evidence. [Coltman J. The pleas allege that the factors were in possession of the dock-warrants, not at the time of the advance of money to them, but "at the time of the pledge and delivery of the dock-warrants" by them. Wilde Serjt. 33. (a) See Co. Litt. 124 b. (c) 5 C. & P. 247. (d) See also Knight v. M'Douall, 12 A. & E. 438.; Gould v. Oliver, antè, Vol. II. p. 208. (e) 1 C. & J. 48. Sce 4 N. & M. 322. n. (a). 1842. BONZI V. Therein lies the whole fallacy of the argument upon the other side.] The pleas state that the factors were in possession of the dock-warrants at the time of the pledge and delivery thereof “as hereinafter stated;" and they STEWART. go on to say, that being so in possession of the dockwarrants, they applied to the defendant for an advance upon the pledge of the bales; and that it was agreed, a sum should be advanced upon such security; and that the factors, being so in possession of the warrants in pursuance of such agreement, did deliver to the defendant the dock-warrants as a security for the sum which the defendant did then and there advance to them. It is impossible to read these pleas in any other way than as containing a statement that the factors were in possession of the warrants at the time of the advance of the money. It is contended that the allegation is mere matter of inducement; but that cannot be; for the main argument on the other side is, that the factors' act does not apply unless the warrants be in the possession of the factor at the time of the pledge. If, as argued upon the other side, the denial modo et formá involves a denial of all the allegations, it would have the same effect as the replication de injuriâ, or even a larger effect, than that replication is allowed to have; for it would put in issue matter of title, which cannot be done by de injuriâ. Besides, the addition of modo et formá to the denial is mere surplusage. Nevil and Cook's case (a), Com. Dig. Pleader, (G. 1.). It is said that de injuriâ could not have been replied in this case. It is immaterial to the defendant's case whether it could or not; but probably it might have been replied, upon the authority of Crogate's case (b), Selby v. Bardons (c), and Solly v. Neish. (d) The case of Parker (a) 2 Leon. 5. (b) 8 Co. Rep. 66. (c) 3 B. & Ad. 2.; affirmed, 3 Tyrwh. 451., 1 C. & M. 500. (d) 5 Tyrwh. 625., 2 C. M. & R. 355., 4 Dowl. P. C. 248. 1842. BONZI V. STEWART. case. v. Riley (a) may perhaps be relied upon by the other side upon this point; but that case has no application here, for it only decides, that when a plea to a declaration on a contract amounts to the general issue, the replication de injuriâ is bad. [Tindal C. J. There may be a doubt, perhaps, whether that replication would be good in this case, where an interest is claimed.] The rule, it is submitted, only applies to real property. But supposing it to apply here, and that de injuriâ could not have been replied, that point has no bearing on the For quacunque viâ datâ, whether de injuriâ could or could not have been replied, the allegation in question is not traversed. Edmunds v. Groves (b) will also be relied upon. That was an action of assumpsit by the indorsee against the maker of a promissory note. The plea was, that the note was given for a gaming debt, and indorsed to the plaintiff with notice thereof, and without consideration. The plaintiff replied, that the note was indorsed to the plaintiff without notice of the illegality, and for a good and sufficient consideration; on which issue was joined; and it was held, that, on these pleadings, the illegal making of the note was not so admitted as to render it necessary for the plaintiff to give any evidence of consideration; but that, in order to compel him to do so, the defendants ought to have proved the illegality by evidence. The question therefore was, on whom the onus probandi lay. Abinger C. B. said, "I think it was incumbent on the defendant, who set up as a defence this fact, that the note came into the hands of the plaintiff with notice of its original infirmity, to have produced some evidence to prove it: or, in other words, that the onus probandi was on him." And Alderson B. added, " An admission on the record is merely a waiver of requiring proof of (a) 3 M. & W. 230. 66 Lord (b) 2 M. & W. 642.; 5 Dowl. P. C. 775. those parts of the record which are not denied, the party being content to rest his claim on the other facts in dispute: but if any inferences are to be drawn by the jury, they must have the facts, from which such inferences are to be drawn, proved like any other facts." These observations appear at first sight very strong in favour of the other side; but the question there was, which way the presumption lay; and the court decided for the plaintiff against the presumption of illegality. The defendant had offered no evidence of illegality, and therefore the court gave judgment for the plaintiff. The expressions of Alderson B. must be understood with reference to the subject-matter under consideration, and not as contravening an established rule in pleading. Bennion v. Davison (a) will also be cited on the other side; the marginal note of which is as follows:-"Declaration in assumpsit stated that the defendants were the owners of a vessel lying in a certain river, and bound to Liverpool; that the plaintiff caused to be shipped on board her a quantity of potatoes, to be safely carried by the defendants, as owners of the said vessel, to Liverpool; and in consideration thereof, and of certain freight, the defendants promised the plaintiff, to take proper care of, and safely carry, the said goods as aforesaid: with a breach, that, through the defendants' negligence, they were damaged. Plea, non assumpserunt: Held, that the ownership of the defendants was not admitted by the plea. A plea denying a particular fact alleged in the declaration, does not admit other immaterial allegations in the declaration. Quare, whether it admits the other material allegations, so as they may be taken as facts to go to the jury?" In that case Parke B. said, "It is not necessary to say more than this as to the effect of an admission on the record, that, at all events, the (a) 3 M. & W. 179. 1842. BONZI v. STEWART. 1842. BONZI v. STEWART. taking issue on one fact averred in the declaration, is only an admission of the other material averments necessary to be proved. Taking it, that here there is an admission of the material allegations, there is no admission of the allegation of ownership, because that is perfectly immaterial." (a) That, therefore, was the case of an immaterial allegation, which could not have been traversed. But here, a plea denying the possession of the dock-warrants by Douglas, Anderson and Company as factors, would have been an answer to the action. The rule may be thus stated: if a material fact be alleged by way of inducement merely, it is not traversable; but if the denial of it would be an answer to the action, then, if it be not traversed, it must be taken as admitted. With regard to the effect of the evidence, supposing it to be admissible, it is said that on the 7th of October when the four dock-warrants were deposited, no fresh advance of money was made, and that undoubtedly is so; the warrants were changed for others, which were not the property of the plaintiffs, but had been previously deposited with the defendant as a security for advances made on the faith of such previous deposit. It is admitted that no lien arises under the factors' act in respect of that exchange. Then, on the 15th of October (the defendant at that time still holding the four warrants deposited on the 7th) an agreement was entered into between the defendant and Douglas and Co. for a new advance of 3,000l. on warrants to be immediately handed over by the latter. The 3,000l. was advanced on that day. Douglas and Co. had the bills of lading in their possession at the time; and the bales of silk were landed in (a) But Alderson B. added, "It is clear that this averment, being an immaterial one, was not admitted; but it is not to be taken for granted, that, if it had been material, there was an admission of it as a fact to go to the jury." |