1846.

KEMPE

v.

GIBSON.

and their interpretation, do not apply to actions upon Queen's Bench. specialties. At common law, a period of twenty years operated, not as a bar, but as evidence of payment; it might be shewn in support of a plea of payment; and such proof might be met by evidence shewing the improbability of payment; Elliott v. Elliott (a). Then does stat. 3 & 4 W. 4. c. 42. alter this? If not, why should the acknowledgment, which in that view is only an answer to the primâ facie presumption, be specially pleaded? [Lord Denman C. J. But, even if you are right so far, the difficulty arises on the form of your replication. Erle J. The plea follows the third scction: your replication answers it only by denying that the action accrued so long ago as twenty years.] If the words "may, by way of replication, state," in sect. 5, be equivalent to "must," &c., the evidence was certainly inadmissible on this issue. [Erle J. There is this analogy against you. In the case of a simple contract, the new promise, to constitute an answer to the plea of the statute, must be consistent with the original one, as in cases where questions have arisen after the marriage of a female contractor. Then a parol promise can never support a count founded on a specialty. Hence arises a necessity for replying specially under sect 5.] That objection assumes that a parol promise cannot operate as negativing the presumption of nonpayment.

COLERIDGE J. (b). And that is so, when the time is pleaded in bar under sect. 3. The statute creates a bar

(a) 1 Moo. & Rob. 44.

(6) Lord Denman C. J. had left the Court during the latter part of the argument.

to the remedy (a), which must be met, if at all, by a replication under sect 5.

WIGHTMAN and ERLE JS. concurred.

Rule refused.

(a) See Sanders v. Coward, 15 M. & W. 48. 57.

Tuesday,
November 3d.

actions were

NEWTON and Another against BELCHER.
SAME against PALMER.

SAME against LIDDIARD.

Where separate KEANE moved for a rule calling on the defendbrought, by the ants to shew cause why an order made by Polsame plaintiff, lock C. B., for staying proceedings in the two last menmembers of the tioned actions, should not be amended, by making provisional

against several

pany, for work

done for the company, a Judge's order to stay proceedings in all but one, made on the plaintiff's refusal to elect

committee of a such stay of proceedings conditional on the defendants railway comPalmer and Liddiard submitting to be bound and concluded, in the actions brought against them, by such verdict as should be found in the action against Belcher, and undertaking, if the verdict should be given in the action against Belcher in favour of the plaintiffs, to the satisfaction of the judge before whom the same should be tried, that no writ of error should be brought upon the judgment to be entered upon In the same the said verdict, nor any bill in equity filed to be relieved from such verdict: or, why the said order should not be rescinded.

on which he would pro

ceed, was re

scinded by the

Court.

case, the action

against one defendant

having been tried, and a

rule nisi granted for a new trial on a ground involving the amount to be ultimately recovered in it, the Court refused to stay proceedings in an action against another of the defendants until the first was determined.

It was stated, in the affidavit on which the order was made, that all these actions were brought against members of a provisional committee for the recovery of the same sum of 42887. 6s. 4d., being the amount claimed by the plaintiffs as their demand against the Oxford and Salisbury Railway Company for services, in respect of which another action, Newton and Another v. Harrison, had also been brought. That these were actions in respect of a demand to which the several defendants were jointly liable, if at all; that the supposed contracts, on which the said actions were respectively brought, and which were the same identical contracts in each and all of the said actions, were one contract with which it was sought to charge the several defendants as respectively being, or supposed to be, members of the railway company in question; and that they were jointly liable, if at all, one with another, upon such supposed contracts, which were joint and not several contracts. On the application for the order being opposed, the Lord Chief Baron said that, as there was no denial of the identity of the causes of action, he should make the order, unless the plaintiffs would elect in which of the three actions they would proceed. This was refused on their part: and the order was made accordingly.

A rule nisi was granted (a); and, on a subsequent day of the term (November 16th),

M. Chambers and Bramwell shewed cause.

Giles v.

Tooth (b), recently decided in the Common Pleas, is in

(a) Ross v. Jacques, 8 M. & W. 135, and Anderson v. Towgood, 1 Q. B. 245., were referred to in moving.

(b) 3 Com. B. 665.

Queen's Bench, 1846.

NEWTON

Y.

BELCHER.

Volume IX. 1846.

NEWTON

V.

BELCHER.

favour of the application to rescind: but the defendants here shew sufficient cause for adopting a different practice. For the Court of Common Pleas, in the case referred to, held that the jurisdiction to make such an order as the present was undisputed; but that it was only to be exercised where the proceedings of the plaintiff were vexatious; which, in their opinion, was not shewn in the instance before them. On the other hand, in Carne v. Legh (a) this Court stayed proceedings in a set of separate actions similar to the present, the defendant in one of them having paid the debt and costs: and also in Everett v. Youells (b), where a new action was brought for the same cause after the discharge of a jury by consent; and, in Miles v. The Inhabitants of Bristol (c), compelled a plaintiff, who had commenced a second action for the same cause in the Exchequer, to elect in which he would proceed. The case of actions on policies of insurance against underwriters is not in point: there, the liability is several, and actions against each are therefore distinct. [Coleridge J. In the present case, though the liability be joint, yet it must be made out by separate evidence against each. There is no ground for alleging that the proceeding is vexatious.] That is not strictly necessary. The ordinary case of requiring security for costs is a similar case of jurisdiction. But in point of fact, though the action be not vexatious, the result is so. King v. Hoare (d) establishes that, if one of several joint contractors is sued, and judg ment obtained against him, another contractor being sued, may plead in bar the former judgment. Consequently two of these actions must be liable to be de

(a) 6 B. & C. 124.
(c) 3 B. & Ad. 945.

(b) 3 B. & Ad. 349.
(d) 13 M. & W. 494.

1846. NEWTON

V.

BELCHER.

feated by the success of the other: and the Chief Queen's Bench. Baorn's order was only with a view to obtain the same result more summarily, by staying the proceedings in two of them until the other is determined. There can be no substantial reason against interfering at this stage as well as a subsequent one: and the protection thus sought for is rendered necessary for co-contractors, by the difficulty which stat. 3 & 4 W. 4. c. 42. s. 8. imposes upon pleading in abatement, by enacting that no such plea for the non-joinder of any person as a co-defendant shall be allowed unless it be stated in such plea that the defendant is resident within the jurisdiction of the Court, and such statement be verified by the affidavit there by required.

Keane, contrà, was stopped by the Court.

Lord DENMAN C. J. We do not think it necessary to hear the argument in answer, especially as the point has been decided by the Court of Common Pleas, and in perfect conformity with our opinion. Three parties are sued in separate actions. Each of the defendants urges that the claim, if any, is joint against all the three: and therefore he prays that proceedings may be stayed in two actions until the event of the remaining one. But, although this may be, in one sense, a case of joint liability, an action against parties liable only as provisional committeemen is not like one against parties jointly liable on a bond or covenant. The case, as

against each, is to be made out by different evidence: the proof of the liability of each arises out of his own conduct or admissions. Therefore injustice might be done to a plaintiff, if he were not permitted to proceed at the same time in actions of which the cause may be the same but in which the evidence is different.