Abbildungen der Seite
PDF
EPUB

claration could have been answered in portions, partly by the plea which was pleaded, and partly by another, is it not the same case we have put of two pleas of non assumpsit, or two pleas of not guilty pleaded in one? There would have been no absurdity in pleading, as to the cause of action relating to the stowage, that the defendants did not negligently conduct themselves, &c.; and as to the residue of the cause of action, that the defendants did not negligently conduct themselves in otherwise taking care of and conveying the goods: it would only, as observed before, have been a clumsy mode of putting the defences on the record; and, as has also been observed, the including them in one plea ought not to prejudice the defendants, being a mere matter of form. There is another test which may be applied, and which was glanced at by Mr. Justice Patteson during the argument of the case of Delisser v. Towne (a), viz. that the plaintiffs, had they so chosen, might in their declaration have alleged the negligence in respect of the stowage, and the negligence in respect of the one cask, as distinct breaches; and if so, this is a general breach including two particular breaches: each particular breach is a distinct cause of action. Then what is the difference in principle between such a general breach and a general count including several causes of action?

The judgments of Lord Abinger and Mr. Baron Alderson proceed upon the assumption that the effect of the second plea was, that the defendants had been guilty of no negligence whatever; and that they had committed no breach; but that is begging the whole question, which was whether the plea was divisible. The opposite way of putting the case is, that in their general allegation, the plaintiffs included two breaches, and that the effect of the plea was to deny each, just as in trover or trespass the effect of the plea of not possessed is to deny the plaintiff's property in each distinct article specified in the declaration, while there is no doubt it also goes to the extent of denying the plaintiff's property in any article.

Mr. Baron Parke, in his judgment, states the question to be, whether the plaintiffs were in fact proceeding for two different (a) 1 Q. B. Rep. 333.

causes of action; and he also says, that if they were, the plea ought to be divisible; and no doubt that is a correct test. The learned Judge, however, came to the conclusion that the plaintiffs were not proceeding for two different causes of action; but when he comes to state the reason for that conclusion, he changes the expression, and says, "The question then is, whether the plaintiffs are here recovering for the breach of one entire contract, and I think they are, viz. the contract safely to carry one entire shipment.”

It is apprehended that there is a fallacy in this, for the learned Judge's observation makes the question depend upon whether it was one entire contract. This would be right had the question been, whether the first issue was divisible; but on the second issue the question turns upon whether it is one breach, not merely whether it is one general breach, but whether there are, or not, two particular breaches included in a general breach; and upon this question, the fact of its being one contract to carry an entire shipment, is altogether inconclusive.

Lord Abinger, in the course of the argument, says, that if judgment had gone by default on a writ of inquiry, the defendant would not have been entitled to any costs. The answer is twofold: first, by suffering judgment by default he would have admitted the breach as to improper stowage; and secondly, a defendant is by statute only entitled to costs where issues of fact or of law are found for him, and if he suffers judgment to go by default, he places himself in a position which prevents him from having any costs. Mr. Baron Alderson observes, that particulars might have been obtained, and the defendant might have paid money into court. It is apprehended that this is not a sound argument, because the same thing might be said with respect to any general count including distinct causes of action, and therefore it proves too much. If the defendant has a clear defence to one claim, and thinks he has a defence to another, he ought not to be driven to abandon the latter defence, by holding that he may set it up only at the peril of losing his costs of the former.

With respect to the illustration used by the plaintiffs'

counsel in argument, and adopted by the Court, viz. the case of a declaration in covenant for non-repair with a single general breach, but with several items of charge and a plea of performance generally, no authority was cited to show that such a plea might not be divisible. If substantially there were but one breach, the issue would not be distributable; but if the general breach included two or more particular breaches, to each of which a distinct item applied, and the defendant had a distinct case and evidence as to one of those particular breaches, there seems to be no reason why the issue should not be distributable. The tests we have mentioned would apply; the plaintiff, instead of assigning a general breach, might have assigned the particular breaches separately; or the defendant might have separated the general breach into the particular ones, and pleaded distinctly to each.

SECT. 2. Where the Issues are raised by Pleas in Confession and Avoidance.

Hitherto the question of the divisibility of issues has been discussed with reference to issues raised by pleas in denial. Pleas in confession and avoidance, and subsequent pleadings, may be conveniently considered separately, although the principle applicable to them seems to be the same.

It is a rule of pleading, that a plea which is bad in part is bad altogether (a). For instance, if to a declaration on promises containing two counts the defendant pleads one plea of non assumpsit infra sex annos, which would be good to one of the counts but not to the other, the plea is bad altogether, not being confined to the one count to which it would be an answer in point of law (b). This is an instance of a plea bad on the face of it; but it was also a rule of pleading, that if a plea was false in fact as to part, the issue was found against the party pleading it as to the whole (c); and it will be found

(a) Stephen on Pleading, chap. ii. sect 5, rule 9.

(b) Webb v. Martin, 1 Lev. 48.

(c) Per Lord Abinger, in Tuck v. Tuck, 5 M. & W. 110.

that this is generally true still, the exception being (if they constitute an exception) those cases in which the plea, though in form one plea, is in substance several pleas, like non assumpsit to a declaration containing several counts (a), or a declaration containing one general count, under which distinct demands are sought to be recovered (b).

Until the rule 74 of Hilary Term 2 Will. IV. came into operation, the question whether special pleas were divisible does not seem to have arisen with a view to the question of costs, for until then there was probably no object in raising it with that view. The question did arise in some cases (c); but as the object in raising it was not the costs, but an entirely different one, the verdict on the issues was not entered divisibly, neither party wishing that that should be done. In two subsequent cases, however, where the question arose as to the divisibility of an issue, the Courts ordered the issues to be entered divisibly, though still without reference to the question of costs (d).

It is apprehended that the test which has been applied to pleas in denial, viz. whether they might be separately pleaded to distinct portions of the demand or of the declaration, will be found equally applicable to pleas in confession and avoid

ance.

To trespass quare clausum fregit, the defendant pleaded that the locus in quo was parcel of the waste; that he had right of common, and entered to exercise it. The plaintiff replied, that the locus in quo had been severed from the waste and inclosed for twenty years and more, and enjoyed during that time in severalty. The defendant traversed this allegation, and issue was joined. The evidence was, that the defendant trespassed on the whole of the locus; that part of it had been inclosed for twenty years and enjoyed in severalty, and other part had not, and so the jury found. The Court held that the plaintiff was entitled to recover in respect of the part inclosed for twenty

(a) Ante, p. 42.

(b) Ante, p. 44.

(c) Winstone v. Linn, 1 B. & C. 60; Richards v. Peake, 2 B. & C. 918;

Bassett v. Mitchell, 2 B. & Ad. 99.

(d) Tapley v. Wainwright, 5 B. & Ad 395; Phythian v. White, 1 M. & W. 216.

F

years, and the defendant to a verdict as to the residue, and they ordered the issue to be so severed and entered on the postea (a). The object of the Court in the particular case was, that a question which had been raised (not with reference to costs) might appear on the record; but if the defendant had been put to any costs in consequence of the too great extent of the plaintiff's claim, he would on this postea, it is apprehended, be clearly entitled to them.

To trespass for breaking and entering three closes described by abuttals, the defendant pleaded one plea of liberum tenementum. The plaintiff replied, that certain persons were seised in fee of the closes, and from them deduced title to himself. The defendant traversed the scisin in fee of those persons, and issue was joined on the traverse. On the trial the plaintiff proved the seisin in fee as to two of the closes but not as to the third; and the Court ordered the verdict to be entered for the plaintiff as to the two closes, and for the defendant as to the third (b).

The plea of liberum tenementum is divisible under like circumstances (c).

A plea of plene administravit is divisible (d). This rests perhaps rather on the ground, that if it were not, the executor would by the judgment be charged with more than he had received, than on the ground that substantially it raises distinct issues; in an ordinary case, when the issues are found for a plaintiff, there is only one further inquiry, viz. what the defendant is to pay him; but in this case, although it is to be ascertained what the plaintiff is to be paid, it is also to be ascertained how much the defendant is to pay him at all events, and how much, in the event of his receiving further assets; and finding the issue divisibly accomplishes this object.

Under the Rules of Hilary Term 4 Will. IV., now repealed, which provided that in all actions in which a right of way or common, or other similar right, is so alleged in the pleadings, that the allegations as to the extent of the rights are

(a) Tapley v. Wainwright, 5 B. & Ad. 395.

(b) Phythian v. White, 1 M. & W.

216.

(c) Id.

(d) 1 Wms. Saunders, 336, n. 10.

« ZurückWeiter »