JAMES and Another v. CRANE. 1846. 661 THIS case was referred, by order of nisi prius, to a Where a cause The barrister was referred to a barrister On the 10th to state a special case, and the case barrister, who was to state a special case. was stated after the death of the defend ant, the Court it aside. Chilton moved for a rule to shew cause why the special refused to set case should not be set aside, on the ground that it was stated after the death of the defendant. In Watson on Awards (a), it is laid down, that the death of one of the parties to a reference before award made is a revocation of the power of the arbitrator; and it is difficult to distinguish such a case in principle from the present. POLLOCK, C. B.-There is no ground for the application. If this had been the case of a special verdict, and one of the parties had died before the verdict was prepared, that would have made no difference. There is a manifest distinction between this case and that of an award, for here the referee is put in the place of the Judge, to settle the points for the opinion of the Court. PARKE, B.-I am of the same opinion. It must be presumed that the jury would have found the facts stated in the special case. Then the referee is a person appointed in the place of the Judge to settle the case, and if he had not been substituted, the Judge might have proceeded to settle the case after the death of the parties. The suit does not abate by the death of a party after verdict, and there seems to me no ground whatever for setting aside the special case. ALDERSON, B., and ROLFE, B., concurred. Rule refused. (a) Page 23, 2nd ed. 662 1846. In an action of debt, where money is paid into Court as to part of the debt only, the plea given by the rule of Trin. Term, 1 Vict. is insufficient; it should be so framed as to answer the damages as well as the debt. LOWE v. STEEL and Another. DEBT for goods sold, money paid, &c. The defendants pleaded "as to the sum of 137. 5s. 9d., parcel of the debts in the declaration mentioned," payment of that sum into Court, in the form prescribed by the rule of Trinity Term, 1 Vict., alleging "that they never were indebted to the plaintiff to a greater amount than the said sum of 137. 5s. 9d. in respect of the causes of action in the introductory part of this plea mentioned." There were other pleas which went to the residue of the debts in the declaration. The plaintiff accepted the sum paid in satisfaction of the debts in the introductory part of the above plea mentioned, and signed judgment for the damages in respect of the detention of that sum. He joined issue upon the other pleas, and delivered the issues, with an award of a writ of inquiry as well to try," &c., "as to assess the damages which the plaintiff hath sustained on occasion of the detaining of the said sum of 137. 5s. 9d.," &c., "parcel,” &c. 66 A rule nisi having been obtained to set aside the judg ment, and to strike out the entry made in the issue in relation thereto with costs :- Cowling shewed cause (a). The judgment is regular. The plea affords no answer to the damages which the plaintiff has sustained by reason of the non-payment of the 131. 5s. 9d., which is admitted to be due. Upon that sum the plaintiff might have recovered interest by way of damages, and such part of this cause of action being unanswered, the proper course was to sign judgment. In 1 Wms. Saund. 28, n. 3, 6th ed., it is said, "if a plea begin only as an answer to part, and is in truth but an answer to part; or though in law it is an answer to the whole, it is a discontinuance, and the plaintiff must not demur, but take his judgment for that as by nil dicit, for if he demurs or pleads over, the whole action is discontinued." [Pollock, C. B.-The difficulty which I feel arises from the rule of Court which has the force of an act of Parliament.] (a) In Trinity Term, 1845. 1846. LOWE v. STEEL This plea does not purport to go to the whole cause of action; and consequently, if it were allowed, the plaintiff would be altogether deprived of interest; for he could not new assign; and if he brought another action for interest, and Another. the judgment in this action might be pleaded in bar; Hitchin v. Campbell (a); Lord Bagot v. Williams (b). [Pollock, C. B.-In what way ought the defendants to have pleaded?] They should have paid the moneyi n satisfaction of the debt and damages. [Alderson, B.-You should have brought assumpsit and not debt.] This inconvenience would follow, that in case of a judgment by default, there must be a writ of inquiry. The rule of Trinity Term, 1 Vict., does not order that in every case the plea shall follow the form there given, but directs that "when money is paid into Court, such payment shall be pleaded in all cases, and as near as may be, in the following form, mutatis mutandis." In this case the defendants should have altered the plea accordingly. Under the form of replication prescribed by the rule, the plaintiff has no alternative but to reply that the defendants owe him more, or that he accepts the sum paid into Court in satisfaction of the debt to which it is pleaded. With respect to the residue of his claim, the plaintiff is left to his remedy at common law. The plea should have been in a similar form to that of a plea of set-off, and should have answered both the debt and the damages sustained by reason of its detention. Before the new rule, when money was paid into Court, it only went in liquidation pro tanto of the debt and damages. Kidd v. Walker (c) decided, that where a defendant, sued upon a security carrying interest, pays money into Court sufficient to cover the principal, with interest down to the commencement of the action, but not to the time of paying in the money, the plaintiff may proceed, and a jury on the trial is bound to give him damages for the interest accruing between the commencement of the action and the payment into Court. The principle of that case is precisely (a) 2 W. Bl. 827. (b) 5 D. & R. 87; S. C. 3 B. & C. 235. (c) 2 B. & Ad. 705; S. C. 1 Dowl. 331. 1846. LOWE v. STEEL and Another. applicable to the present. Blackmore v. Flemyng (a) shews that in an action of debt the plaintiff is entitled, as a matter of law, to some damages : if none were given, he could not have costs under the statute of Gloucester. [Pollock, C. B.In Bailey v. Sroeeting (b), this Court held a similar plea bad, for containing that for want of which you contend that this plea is bad.] The plaintiff only accepts the money in discharge of that claim in respect of which it is paid in, namely, the debt. The observations of Holroyd, J., in Higgins v. Sargent (c), do not apply to this case, but relate to the discharge of a debt before action brought. In Henry v. Earl (d), Lord Abinger, C. B., in delivering judgment says, "no doubt costs form part of the damages resulting from the detention of the debt, and if there is no answer as to those costs, the plaintiff may sign judgment for so much. Though the damages in debt are, in general, considered as nominal only, yet the jury may give substantial damages if they think fit." In Bailey v. Sweeting, the Court did not decide that the plea was bad, because the defendant had pleaded to the damages; but because he admitted that there was some damage to which he gave no answer. Martin, in support of the rule. Both at common law and under the new rules, the plaintiff is irregular in signing judgment. The argument on the other side proceeds upon the assumption that in every case of a debt for goods sold and delivered, interest is due. In Higgins v. Sargent Holroyd, J., says, "I am of opinion upon the principles of the common law, that interest is not payable upon a sum certain payable at a given day. The action of debt was the specific remedy appropriated by the common law for the recovery of a sum certain. Now, in that action the defendant was summoned to render the debt, or shew cause why he should not do so. The payment of the debt satisfied the summons, and was an answer to the action.” In truth the damages are merely nominal, in order to enable the (a) 7 T. R. 446. (b) Ante, vol. 1, p. 653; S. C. 12 M. & W. 616. (c) 2 B. & C352. (d) 8 M. & W. 233; S. C. 9 Dowl. 725. 1846. LOWE v. STEEL plaintiff to obtain costs under the Statute of Gloucester. [Alderson, B.-If the doctrine contended for on the other side be true, nil debet was always a bad plea, because it did not cover the damages.] In an action of debt for rent, and Another. it is sufficient to plead that the rent was levied by distress; Com. Dig. tit. " Pleader,” (2 W. 47) (2 V. 14); though the plaintiff sue as well in respect of the detention of the debt as for the debt itself. In Wilde v. Clarkson (a) it was decided, that a party sued on a bond of indemnity is entitled to have satisfaction entered on the record on payment of the penalty of the bond and costs of the action. In that case Lord Lonsdale v. Church (b) was relied on as an authority to shew, that in an action on a bond, damages may be recovered beyond the amount of the penalty, but Lord Kenyon says (c), "I cannot accede to the doctrine in the case cited by the plaintiff's counsel; according to that, an obligor who became bound in a penalty of 10007., conditioned to indemnify the obligee, may be called upon to pay 10,000, or any larger sum, however enormous. Suppose the plaintiff proceeds in this action, and no defence is made to it, the judgment would be for the penalty of the bond, and one shilling nominal damages for the detention of the debt." In a late case of Branscombe v. Bridges (d), the Court of Queen's Bench were inclined. to think, that in an action on a bond the plaintiff was not entitled to nominal damages for the detention of the debt, and that in the case of Hellen v. Ardley (e), Lord Tenterden was wrong in allowing such damage. In Bailey v. Sweeting, Parke, B., says, "the Judges took the trouble to draw a statutory form, which answers in substance the demand." Secondly, under the new rules, the plaintiff is clearly irregular in signing judgment, for the rules expressly prescribe the course of proceeding. If the plaintiff have any independent ground of action for damages, a recovery in this suit would be no bar. In Hitchin v. Campbell (ƒ), and Lord (a) 6 T. R. 303. (d) Trin. Term, 1844. (f) 2 W. Bl. 827. |