capable of being construed distributively, they shall be so taken, and which applied to actions on the case as well as to trespass, and to declarations as well as pleas (a), it has been held, in an action on the case for disturbing the enjoyment of an ancient ferry, where the declaration stated that the plaintiffs were possessed of an ancient ferry across the Thames, to and from the Isle of Dogs, from and to Greenwich, and the defendant pleaded not possessed, and that there was not such ancient ferry, and the only right proved was an ancient right of ferry from the Isle of Dogs to Greenwich, that the right alleged was divisible, and that the plaintiffs were entitled under the above rules to have the verdict entered for as much of the right as was proved, there being no difference in this respect when the plaintiff claims as owner of a franchise, or by virtue of an easement (b). Though the rules under which the above decision took place are repealed, yet they are in effect re-enacted by the Common Law Procedure Act, 1852, and the decision may be applied in illustration of that

statute.

Before that enactment, the plea of set-off was not a divisible plea; that is, it could not be found distributively, as to so much for the one party, and as to the residue for another (c). Suppose a declaration contains two counts, one for 501. for goods sold, and one for 501. for money lent; if a defendant were to attempt to plead a set-off of 501. for work done to the first count, and a set-off of 50l. for work done to the second count, it is apprehended that either both pleas would be bad, or he would be compelled to strike out one, or consolidate them into one to the whole declaration; for otherwise, if he were to prove one debt of 50%. for work, he would prove both pleas, and therefore be entitled to a verdict on each, although the plaintiff might have proved 1007. due to him, viz. 507. under each count. The plea of set-off, therefore, is not one which could be pleaded several times, in the same language, to several counts or demands contained in a general declara

(a) Giles v. Groves, 12 Q. B. 721; 17 L. J. (N. S.), Q. B. 323, S. C. (b) Giles v. Groves, supra.

(c) Moore v. Butlin, 7 Ad. & E. 595; Tuck v. Tuck, 5 M. & W. 109.

tion. It was not, therefore, considered as several pleas in substance, though one in form.

The case of Kilner v. Bailey (a) seems to treat the ordinary plea of payment as having been on the same footing as a plea of set-off, and therefore not a divisible plea; but it will be found, on looking to the facts of that case, that it is not an authority to that extent; for in truth the payment in that case was not a payment of anything which was sought to be recovered; what was sought to be recovered in that case was a balance due after giving credit for the payment proved. It is apprehended that a plea of payment might or might not have been a divisible plea, according to the facts of the case.

These considerations, however, with regard to pleas of setoff and payment have become comparatively, if not entirely, unimportant since the passing of the Common Law Procedure Act, 1852; for by the 75th section of that Act it is enacted, that pleas of payment and set-off, and all other pleadings capable of being construed distributively, shall be taken distributively; and if issue is taken thereon, and so much thereof as shall be sufficient answer to part of the causes of action proved shall be found true by the jury, a verdict shall pass for the defendant in respect of so much of the causes of action as shall be answered, and for the plaintiff in respect of so much of the causes of action as shall not be so answered.

Without speculating upon the subject of the construction to be put upon this section, our present view is, that except with regard to the pleas of payment and set-off, and perhaps a few others, its effect has been in a great degree anticipated by the course of decisions of late years as to finding issues distributively.

With regard to the plea of set-off, however, unless the amount of set-off proved covered the whole of the demand proved, the entire issue was formerly found for the plaintiff. It is apprehended that the effect of the above section will be that hereafter, where something is proved under the set-off, but not sufficient to cover the whole demand, there must be a finding of so much for the defendant, and the residue for the (a) 5 M. W. 382.

:

plaintiff; the effect of which will be to entitle the defendant to the costs of proving that which he may have proved and the plaintiff, in order to avoid liability to such costs, will in such a case find it necessary, in his replication, to enter a nolle prosequi as to so much of his demand as is covered by the amount of set-off really due, which in many cases will entail upon him considerable difficulty; or else to give credit for the set-off in his particulars of demand (a). It may be said, however, that where a set-off to the full amount is not proved, it is not a sufficient answer to any part of the cause of action, because the material allegation in the plea, that it equals the demand, is not proved, and therefore that the plea is not capable of being taken distributively; but this can scarcely be a correct view, because the effect would be, as it seems, to render the section inoperative on the plea of set-off, although that plea is expressly mentioned in it.

The effect of the section now in question on the plea of payment will probably be to render it distributable in all cases, and thus render it important for the plaintiff to give credit in his particulars for the full amount of payments, or, if he has not done so, to enter a nolle prosequi in his replication; otherwise a part of the issue may be found for the defendant, and the plaintiff thereby subjected to costs.

It is probable that many points will arise upon this section, but it would be useless to attempt to anticipate them.

It may be observed, however, that the question of the apportionment of costs of issues has been referred to in a recent case arising under this statute. To a plea of the Statute of Limitations to an action on a specialty, the plaintiff replied that the defendant made an acknowledgment that the debt remained unpaid and due to the plaintiff, and that the action was brought within twenty years after such acknowledgment. The defendant obtained a rule under the 52nd section of the Common Law Procedure Act, to show cause why the replication should not be amended, as tending to embarrass the trial, as it did not specify which of the three acknowledgments mentioned in the 3 & 4 Will. IV. c. 42, s. 5, was relied on, (a) See the 13th Pleading Rule of Hilary Term, 1853.

viz., whether an acknowledgment by writing signed by the party, or such an acknowledgment signed by his agent, or such an acknowledgment by a part payment. The Court of Exchequer made the rule absolute, taking as one ground of their decision (as appears from the observations of Mr. Baron Parke and Mr. Baron Alderson), that on the replication as it stood the costs applicable to the three species of acknowledgments could not (in accordance with the doctrine in Anderson v. Chapman (a),) be apportioned, although the plaintiff only proved one acknowledgment, and that the plaintiff being now at liberty to reply double, ought, if he relied on more than one kind of acknowledgment, to split the replication into parts, so as to give the defendant the costs of that portion on which the plaintiff failed (b).

OF THE COSTS OF

CHAPTER V.

EVIDENCE

APPLICABLE TO ISSUES

FOUND

AGAINST A PARTY, AS WELL AS TO ISSUES FOUND FOR HIM.

THE question of divisible issues brings us to another, which is of considerable importance, inasmuch as the circumstances which give rise to it are of frequent occurrence. It constantly happens, in cases where some issues are found for one side and some for the other, that a witness has been brought to the trial to give evidence on the issues found for the party, and also on those found against him, or that documentary evidence has been brought applicable to both sets of issues; and the question is, whether the party is to be allowed the expense of bringing the witnesses or the documents to the trial, because he has succeeded on issues they were brought to support; or, whether he is to be disallowed that expense because he has failed on issues they were brought to support; or is the expense to be apportioned amongst the issues? The principle

(a) Ante, p. 44.

(b) Forsyth v. Bristowe 22 L. J. Exch. 70.

on which this is to be determined is clear; the difficulty is generally in its application.

It will be found that in no case in an ordinary action is the expense to be apportioned, but that the party is either entitled to the whole of it, or to none, and that if it be the party entitled to the general costs of the trial, who is in this position, he is entitled to be allowed this expense; if it be the other party, it must be disallowed, for in the former case the expense would have been incurred if that part of the case on which the successful party has failed had not been set up, and must have been paid by the unsuccessful party in the latter case it would also have been incurred if the part of the case on which the party failed had been the only matter in dispute, and he would not have been entitled to receive it. This question arose incidentally in the case of Penson v. Lee (a), which was assumpsit on a policy of insurance, with a count for money had and received; plea (as appears from the second argument of the plaintiff's counsel), non assumpsit. Verdict for the defendant on the special count; for the plaintiff, with damages, on the other. On a motion respecting the taxation of costs, Lord Eldon, with reference to the plaintiff's witnesses, said that the prothonotary should consider whether the witnesses adduced by the plaintiff were bona fide brought forward to support the count upon which the plaintiff recovered, either wholly or in part, and should allow for them accordingly; and if he should be of opinion that they were not brought forward with the intention of supporting that count either wholly or in part, he should disallow the costs respecting them altogether. This seems clearly to mean, that although witnesses for the plaintiff were brought to speak to the first issue, yet if they were also brought to speak to the second, the expense of bringing them was to be allowed to the plaintiff; and therefore seems to proceed on the correct principle, because if the declaration had consisted of the second count only, the witnesses would have been called, and the defendant would have had to pay the expense of them.

The case of Richards v. Cohen (b) was an action for libel, (b) 1 Dowl. 533.

(a) 2 B. & P. 330.