made a lease for years by deed indented, and after purchase the land, the lessor is as well concluded as the lessee to say that the lessor had nothing in the land; and here it worketh only upon the conclusion, and the lessor cannot confess and avoid, as he might in the other case." [Maule J. Can you set up an estoppel without pleading it?] Here that is not necessary, for it already appears upon the record. Bowman v. Taylor (a) shews not only that there may be an estoppel by matter of recital, but also that, where the point of estoppel appears on the pleadings, advantage may be taken of it on demurrer. It is submitted, therefore, that here the defendant is estopped from denying the plaintiff's possession of the shares. Secondly, the traverse is also improper, inasmuch as it is confined to the time of entering into the agreement. It is consistent with such traverse that the moment after the making of the agreement the plaintiff had his title perfected. A further objection is, that this is attempted to be put in issue as though it were a condition precedent that the plaintiff possessed the twenty shares. The traverse does not go the whole of the consideration; Boone v. Eyre (b); notes to Pordage v. Cole. (c) Byles Serjt. (with whom was Hoggins) contrà. It is submitted that the plea is good. If the declaration had commenced in the ordinary way, by stating the indenture, the defendant might have been estopped from denying the plaintiff's title to the shares. But the plaintiff has deprived herself of the right to rely on the estoppel, by setting out upon the record as a substantive and independent allegation, the fact that the plaintiff was possessed of twenty shares in this company. (c) 1 Wms. Saund. 319. (a) 2 Ad. & E. 278. 1844. BECKETT v. BRADLEY. Blac. 1312. 1844. BECKETT In Palmer v. Ekins (a) matter was put in issue which could not have been done if the opposite party had pleaded proBRADLEY. perly. [Tindal C. J. May not a party avail himself of an estoppel by demurring, where the matter of estoppel appears on the record, as well as by pleading it? Could not the plaintiff have replied the indenture, and relied on the estoppel in it? and, if so, why may she not demur, the estoppel appearing on the record?] It is submitted that the plaintiff could not have pleaded such replication. Suppose a rejoinder that the indenture was obtained by fraud, the existence of the indenture would remain untraversed on the record. No case has been cited to shew that such a traverse cannot be taken where, besides the indenture, a substantive fact is alleged, the admission of which might prejudice the defendant. [Tindal C. J. In Palmer v. Ekins it is laid down that if it appears on the record, the opposite party may demur, and need not reply the estoppel.] In Bowman v. Taylor this difficulty did not arise; for there, the declaration commenced by setting out the indenture. Here, the fact is stated as wholly independent of the indenture. There is no averment that the shares mentioned in the declaration are the same as those mentioned in the indenture. [Maule J. If they are the same, then the estoppel applies; if not, the allegation is as immaterial as if the plaintiff had averred that she was possessed of a grey horse.] Per curiam; (a) 2 Ld. Raym. 1550., 2 Stra. 817., 1 Barnard. 103. In that case it was held that if A. by indenture demise to B. lands in which A. has nothing, and A. afterwards purchases the lands in fee, and sells them to C. habendum to C. and his heirs, Judgment for the plaintiff. C. shall be estopped. It is to be observed, that in Palmer v. Ekins the estate in interest, as well as the estate by estoppel, was a fee simple; and see antè, 715, 720. See, as to the necessity of coincidence in quantity of estate, antè, 728. n. 1844. HALL V. IVE. HALCOMBE Serjt., after a verdict for the defendant, and a rule absolute for a new trial, moved on the part of the plaintiff, for leave to proceed in the action, in formâ pauperis. That such leave may be granted pendente lite appears from Doe d. Ellis v. Owens (a), Brunt v. Wardle. (b) TINDAL C. J. As that point is now clearly settled, you may take a rule absolute in the first instance. Rule absolute. Nov. 5. A plaintiff was allowed, by a rule absolute in the first instance, to prosecute in formú pau peris a suit already com menced. (a) 9 M. & W. 455. (b) 3 Mann. & Gr. 534., 4 Scott, N. R. 188. RUSSELL v. KNOWLES. Nov. 9. DOWLING Serjt., moved for a distringas. His affi- The affidavit davit stated the requisite number of calls and in support of ap pointments; but it appeared that they had been made, not at the defendant's dwelling-house, but at his office. an application for a distrin gas, must shew that the calls were MAULE J. The calls should have been made at the made at the 1844. Nov. 20. trespass for assaulting the plaintiff on board a ship on the high seas, and GRIFFITHS v. DUNNETT. To a count in TRESPASS. The second count of the declaration stated that the defendant, on &c., with force and arms, assaulted the plaintiff on board of a certain vessel, on the high seas, and then, with great violence, beat, struck, and knocked down the plaintiff, and then also forced and compelled the plaintiff, then being very sick, weak, and disordered, to stand and remain in a standing posture, upon the deck of the said vessel for a long time, to wit, one hour, until the plaintiff, from weakness and exhaustion, sank and fell down, and was wholly unable to stand; whereby the plaintiff then became and was, and continued for a long time thence to be very sick, weak, and disordered. forcing and compelling him, he then being sick, to stand and remain standing on the deck for the space of one hour, a plea justifying the forcing and compelling the plaintiff to stand and remain standing upon the deck, is bad, as being pleaded to that which is mere matter of aggrava tion. The defendant pleaded, fifthly, as to forcing and compelling the plaintiff to stand and remain in a standing position upon the deck of the said vessel, a justification on the ground of insubordination. Special demurrer, assigning for causes amongst others, that the part of the count to which the plea was pleaded was alleged in the said count either as matter of aggravation only or as part only of one act of trespass, the whole of which act of trespass was not confessed by the plea; and therefore the plea attempted to put in issue matter not issuable, or to put in issue part of one indivisible act of trespass. Joinder. C. Jones Serjt. was to have argued in support of the demurrer; but the court called upon Channell Serjt. to sustain the plea. The plea is good, and confesses and avoids one of the trespasses charged in the declaration, viz. the forcing and compelling the plaintiff to stand up on the deck of the vessel. [Tindal C. J. Is that a substantive trespass? Suppose it were the only allegation in the declaration, would it be a trespass?] It is a sort of imprisonment. It is clear that a false imprisonment is a separate trespass. In an action for trespass and false imprisonment, the plea after justifying the assault, proceeds to justify the forcing the plaintiff along the particular street. TINDAL C. J. In the case put, the false imprisonment is prefaced by the word "seized;" there is a continuing trespass. Here, it might be that the only thing done was, that the defendant was forced to stand up: there might be no seizing. The plea seems to me to be bad, as addressing itself to matter of aggravation only. The rest of the court concurred. Judgment for the plaintiff. 1844. GRIFFITHS บ. DUNNETT. LEWIS and Others v. MARSHALL and Another. ASSUMPSIT by the owners of the Stratheden, against ship-brokers, charging them, in the first count, with a breach of a contract to procure for the plaintiff's ship Nov. 23. The jury having found a verdict for the de fendants upon the first count, contrary to the evidence and to the judge's direction, and for the plaintiffs on the second and third counts, a rule nisi was granted for a new trial; on the discussion of which it was agreed that the court should decide upon the construction of the contract declared on in the first count, and, if they should think certain evidence which had been rejected at the trial admissible, should determine as to the effect of it. The court directed that, instead of a new trial, the verdict which had been found for the defendants on the first count should be set aside on the usual terms, and be entered for the plaintiffs for such sum as should be ascertained between the parties under the agreement entered into. The parties having agreed as to the amount of the verdict: Held, that the plaintiffs were not entitled to the costs of the trial as to that issue. |