commission. Replication, De injuria. The defendant demurred, and assigned for cause that the plaintiff had attempted to put in issue three distinct things, viz., the trading, the petitioning creditors' debt, and the bankruptcy. But the court held it good, for "the three facts connected together constitute but one entire proposition, and, therefore, the replication is good." So it was held in Webb v. Weatherby, 1 Bing. N. C. 502, that payment in satisfaction and acceptance in satisfaction may both be put in issue by the same replication. But though several facts may often be traversed cumulatively, where they constitute together one ground of action or defence, yet care must be taken to traverse them not copulatively, but in the disjunctive, whenever proof of all of them is not absolutely incumbent on the opposite party. Goram v. V. Sweeting, 2 Wms. Saund. 207; Moore v. Boulcott, 1 Bing. N. C. 323; Stubbs v. Lainson, 5 Dowl. 162. And the rule that several facts constituting one single point may be traversed cumulatively, must be taken with considerable qualification; for every plea or replication, which is not bad for duplicity, consists (as Mr. J. Patteson remarks in Selby v. Bardons, 3 B. & Ad. 9) of a single point, yet there are cases where a traverse of several matters constituting one plea or one replication has been disallowed. See Faulkner v. Chevell, 5 Nev. & M. 5 A. E.; White v. Reeves, 2 Moore, 23; and Smith v. Dixon, 7 A. & E. 21. Indeed the cases regarding duplicity seem to rest at present on no well-settled principle. See Lord Tenterde.'s observations in Selby v. Burdons, 3 B. & Ad. 1. In Hulme v. Mugglestone, Mich. T. 1837, reported 4 Mee & W. 30; 6 Dowl. 112, the question what constitutes duplicity was brought before the court by demurrer to a replication traversing both sides of a plea of mutual credits. The declaration was by assignees of a bankrupt for money had and received to their use, the defendant pleaded among other things as to 197. 19s. parcel, &c. that the bankrupt was before bankruptcy indebted to the defendant in 201 for goods sold, and that before bankruptcy he lent the defendant a cheque for 977. 10s. on the Chesterfield bank, which cheque the defendant procured to be cashed after the bankruptcy, and the amount of which was the same money for which the plaintiffs had declared; and as to 197. 19s. thereof defendant claimed to set off under St. 6. G. 4. c. 16, s. 50. Replication that the bankrupt was not indebted to the defendant NOR did the bankrupt give credit to the defendant in manner and form, &c., the court after argument advised the plaintiff to amend, which he accordingly did on payment of costs. See further; Smith v. Dixon, 6 Dowl. 47; and Stevens v. Under wood, 4 Bing. N. C. 655. The power of putting the whole of a defence in issue must of course be taken subject to the qualifications established by Crogate's case, which see with the notes ante, p. 53. Where a traverse is bad for duplicity, it appears to make no difference though one part of it may be immaterial. Stevens v. Underwood, 4 Bing. N. C. 655. Regil v. Green, 1 Mee & Welsb. 328. As to the second cause of demurrer, it is now settled that, wherever a subsequent pleading traverses a material part of the former one in such a manner that the adversary, if he were obliged to answer it at length, could do nothing but repeat the allegation traversed, there a conclusion to the country is proper, and that whether the traverse be or not prefaced by an inducement. Reg. Gen. Pl. Hil. 1834, Pl. 13. See 1 Wms. Saund. 103 a. note 3. With respect to the refusal of the application to amend, the courts always refuse permission to do so under such circumstances as those in the principal case: and even in cases where the objection is not so strong, leave to amend is by no means granted as a matter of course. See Kinder v. Paris, 2 H. Bl. 561; Rex v. Holland, 4 T. R. 459; Evans v. Stevens, Ibid. 228; Wood v. Grimwood, 10 B. & C. 689; Saxby v. Kircus, Say, 117; Noble v. King, 1 H. Bl. 37; Jordan v. Twells, Hardw. 171. Indeed the court is very reluctant to amend after its opinion has been delivered upon argument; for, if it were to become usual so to do, great great encouragement would be afforded to frivolous and experimental demurrers, since parties would take the chance of succeed ing upon argument of any legal objections which might occur, knowing that, in case of failure, they would be allowed to amend and go to trial on the facts. See Say, R., 116-17, and Bramah v. Roberts, 1 Bing. N. C. 483, where Tindal, C. J., in refusing such an application, said, "The law of Westminster Hall, I believe, ever since it stood in the place in which it now stands, has been that, if a party thinks proper to rest his defence on his case upon a point of law, raised on the record, he must either stand or fall upon the point so raised. I do not mean * to say that a case may not arise, where, a point being so taken, a party may, even after judgment, apply to the court to amend; but, according to the advice of Lord Coke, Butler and Baker's case, 3 Rep. 25, you ought never to rely on a point of law when the facts are in your favour. Although there are excepted cases, which will always be attended to, I should expect after an argument has been heard, and judgment given for the plaintiff, at least a distinct affidavit of merits from those who make the application." But after demurrer and joinder, Hatton v. Walker, 2 Str. 816; and amendments are sometimes allowed even after argument. See Ayres v. Wilson, 1 Dougl. 385; Waters v. Ogden, 2 Id. 452; Alder v. Chip, 2 Burr. 756; Cholmley v. Paxton, 3 Bing. 1. And so long ago as Michaelmas 2 Anne, the rule which has ever since prevailed was laid down in the following terms, viz.: "Since pleading in paper is now introduced instead of the old way of pleading, ore tenus, at the bar, it is but reasonable after a plea to issue or demurrer joined, that upon payment of costs the parties should be at liberty to amend their plea, or to waive their plea or demurrer, while all the proceedings are on paper." Anon. 2 Salk. 520. For in ancient times the counsel, as is well known, used to deliver the declaration, plea, &c., ore tenus, at the bar, up to demurrer, or issue in fact, and, in case of any mistake, used to correct themselves and amend it. Now therefore that paper pleadings are substituted for these oral ones, the same species of amendments are permitted, not in consequence of any statute, but merely in continuance of the old common law practice. But when the proceedings have been entered upon record, the common law power of amendment ceases; for the judges at common law were prohibited from allowing alterations to be made in any record, Britton, proem, 2. 3; and indeed several of them were, during the reign of Edward the First, severely punished for so doing, among whom the Lord Chief Justice Ingham, or Hengham, was fined, according to some, 7000, to others, 800, marks; clause 6, Edw. I. m. 6, Dugd. Chron. Ser. 26. Year Book, M. 2 Ric. 3. 10; 4 Inst. 255; 1 H. P. C. 646; which sum, as we are told by Justice Southcote, 3 Inst. 72; 4 Inst, 255; was expended in building a clock-house at Westminster, with a clock to be heard in the Hall-a circumstance which, as is observed by Mr. J. Coleridge, in his admirable edition of the Commentaries, explains a dictum of Lord Holt; Anon. 6 Mod. 130; where his lordship, refusing to amend a record, said, "He considered there wanted a clock-house over against the Hall-gate." Several statutes, however, were soon passed, authorising amendments in the record itself. And others called statutes of Jeofails, curing mistakes of form without any actual alteration. See a good account of these acts B. N. P. 321. a.; and see Siboni v. Kirkman, 3 Mee & Welsb. 46, where the omission of a similiter was amended even after Writ of Error. In construing the statutes of amendment, there was one general rule, viz., that, in order to amend under them, there must be something to amend by. Thus the writ or bill was amendable by the præcipe; the pleadings by the draft under counsel's hand; the nisi prius roll by the plea roll; the verdict, if general, by the memory or notes of the judge, or notes of the associate or clerk of assize, if special, by the notes of counsel or by affidavit; the writ of execution by the judgment, or by the award of it upon the roll, or by former process. See Tidd's Prac. 9 Ed. p. 712; B. N. P. 321. a. et seq. However, several cases occur in the books in which records have been amended, although it would appear that there was nothing to amend by; for instance, Halhead v. Abrahams, 3 Taunt. 81; where in an action on a bond, the plaintiff * was nonsuited for a variance between the bond and the statement of it in the declaration; and the court set aside the nonsuit, and amended the declaration. See Skutt v. Woodford, 1 H. Bl. 238; and Tidd's Prac. 697. 8. 708. 9; and the late case of Siboni v. Kirkman, 3 Mee & Welsb. 46, seems to prove that where the error is an evident misprision of the clerk in omitting a well known and established form of words, it is not necessary to produce anything to amend by in order to induce the So court to supply the deficiency. The subject is not now, however, of so much practical importance as formerly; for by Reg. G. Hil. 1834. pl. 15, it is directed that "the entry of proceedings on the record for trial, or on the judgment roll, according to the nature of the case, shall be taken to be, and shall be, in fact, the first entry of the proceedings in the cause, or of any part thereof upon record." that now the proceedings remain in paper until the making up of the judgment roll, in all cases, except those in which there is a trial; and, with respect to the nisi prius record, it appears clear that, as the paper pleadings and issue are now substituted for the plea and issue rolls, it may be amended by the former, as it once might have been by the latter; besides which, very extensive powers of amending it at the trial are given by statutes 1 G. 4. c. 55; 9 G. 4. c. 15; and 3 & 4 W. 4. c. 42; the provisions of which will be found in the notes to Bristow v. Wright, post. The common law rule, that a record was not amendable, must be taken to mean that it was not amendable after the term. See R. v. Carlile, 2 B. & Adol. 971; for during the term the record is said to be in fieri; and it is in the breast of the court to mould it as the justice of the case requires. MILLER v. RACE. HIL. 31 GEO. 2. [REPORTED 1 BURR., 452.] Property in a bank-note passes like that in cash, by delivery : and a party taking it, bonâ fide and for value, is entitled to retain it as against a former owner from whom it has been stolen. It was an action of trover against the defendant, upon a bank-note, for the payment of twenty-one pounds ten shillings to one William Finney, or bearer, on demand. The cause came on to be tried before Lord Mansfield, at the sittings in Trinity term last at Guildhall, London: and upon the trial it appeared that William Finney, being possessed of this bank-note on the 11th of December 1756, sent it by the general post, under cover, directed to one Bernard Odenharty, at Chipping Norton in Oxfordshire; that on the same night the mail was robbed, and the banknote in question (amongst other notes) taken and carried away by the robber; that this bank-note, on the 12th of the same December, came into the hands and possession of the plaintiff, for a full and valuable consideration, and in the usual course and way of his business, and without any notice or knowledge of this bank-note being taken out of the mail. It was admitted and agreed that, in the common and known course of trade, bank-notes are paid by and received of the holder or possessor of them, as cash; and that in the usual way of negotiating bank-notes, they pass from one person to another as cash, by delivery only, and without any further inquiry or evidence of title than what |