1840. May 5. is joined in Michaelmas DUGGAN v. WILBRAHAM. (a) Where issue GOULBURN, Serjt. having obtained a rule to shew cause why judgment should not be given for the devacation, and fendant, as in case of a nonsuit,-upon an affidavit, stating that issue had been joined on 6th December, and that the plaintiff had not proceeded to trial. no notice of trial is given, the defendant is not entitled to move for judgment as in case of a nonsuit, until Trinity term. Channell, Serjt. now shewed cause. The motion is made too soon, issue having been joined in this case in Michaelmas vacation, not in Michaelmas term; nor can it be considered as an issue as of Michaelmas term; and no notice of trial having been given, the defendant was bound to wait till Trinity term before he moved for judgment as in a case of a nonsuit: Fox v. M'Culloch. (b) There, issue was joined in Trinity vacation, and the motion for judgment, as in case of a nonsuit, was in the following Hilary term, no notice of trial having been given. That was a town cause. Robinson v. Taylor (c) will probably be relied on by the other side; but that was a country cause; and Littledale J., by whom it was decided, expressly abstained from giving an opinion as to what would have been the practice if it had been a town cause. In Pierson v. Chessun (d) it was stated by the Court that the decision in Fox v. McCulloch proceeded on the ground that an issue joined in the vacation could not be treated as an issue joined as of the preceding term. [Tindal C. J. The plaintiff is entitled to two terms, unless notice of trial has been given.] (a) And see Smith v. Pole, 5 Mees. & W. 491.; Doe dem. Balls v. Margrave, post. 333. (b) 5 Dowl. P. C. 526. (d) 6 Dowl. P. C. 507. 1840. DUGGAN บ. Goulburn, Serjt., in support of the rule. Williams v. Edwards (a), in which issue was joined in Easter vacation, and the motion for judgment, as in case of a nonsuit, made in Michaelmas term, was held to be too early, was WILBRAHAM. a country cause. [Bosanquet J. Gough v. White (b), in which it was held that a defendant cannot move for judgment as in case of a nonsuit, until the third term after issue joined, was a town cause. In Heale v. Curtis (c), the rule was discharged on the ground that it was not shewn that the cause was a country cause.] The relation back to the preceding term is not taken away. This, therefore, must be considered as an issue joined as of Michaelmas vacation as of Michaelmas term. [Erskine J. In Harrison v. Williams (d), it was held that even in a country cause, where issue is joined, as it is here, in Michaelmas vacation, it is too early to move for judgment as in case of a nonsuit in Easter term, if no motion of trial has been given.] TINDAL C. J. This rule must be discharged, the costs to be costs in the cause. Channel, Serjt. In the Court of Exchequer (e), the defendant is always made to pay the costs of an irregular and vexatious motion for judgment as in case of a nonsuit. [Tindal C. J. Here, there was considerable doubt. (g)] Rule discharged, the costs to be costs in (a) 3 Dowl. P. C. 183. (d) 6 Dowl. P. C. 772. Vide Smith v. Miller, 3 M. & W. 60. (g) Vide Gough v. White, ubi suprà; Doe dem. Balls v. Margrave, post, 333. (h) If therefore the plaintiff, through any cause, should be defeated in the action, he would 1840. May 9. THOMPSON V. Jackson. A plea of pay- TRESPASS, for breaking and entering the plaintiff's dwelling-house, and taking and carrying away his ment of mo ney into court under 3 & 4 W. 4. c. 42. s. 1., and R. T. 1 Vict. reg. 1., in bar of the further maintenance cannot be goods. Plea-first, not guilty; secondly, that the dwellinghouse in which &c. was not, at the time &c. when &c. the dwelling-house of the plaintiff; thirdly, that the goods were not the goods of the plaintiff; fourthly, leave and licence; fifthly, in bar of the further maintenance of the action, of the action,that the defendant now brings into court pleaded to the the sum of-7. ready to be paid to the plaintiff, and same cause of that the plaintiff has not sustained damages to a greater amount than the said sum of -l., in respect of the causes of action in the declaration mentioned (a), and this he is ready to verify; wherefore he prays judgment if the existence of plaintiff ought further to maintain his action. action to which other pleas are pleaded in denial of the that cause of action at the time of action brought. Channell, Serjt. having obtained a rule nisi to discharge the rule to plead several matters, on the ground that the fifth plea, which admitted that the action had been properly brought, and that up to the time of the delivery of the plea it had been properly continued, and merely prayed that it might be no longer prosecuted, on the ground of satisfaction made to the plaintiff since the commencement of the action, was inconsistent with pleas which denied that the plaintiff ever had any such right of action against the defendant. Stephen, Serjt. now shewed cause. A party who takes such an objection as this, should apply at the very earliest period. That has not been done here. But there is no ground for the objection. This plea is given by a particular statute (a), and the form is prescribed by a rule of court founded on that statute. By that statute a boon was intended to be given to defendants. But, if the right to plead payment into court be clogged with the condition, that no other plea shall be pleaded with it, the supposed boon will turn out to be attended with little or no benefit. But the rule of court does not require that this plea shall be pleaded alone. [Tindal C. J. A tender cannot be pleaded to the whole action, together with other pleas which deny the right of action.] It is true that a tender cannot be pleaded with the general issue to the whole declaration; Marlellan v. Howard (b), Jenkins v. Edwards. (c) Pleas of tender, however, contain a distinct admission of a cause of action to the extent of the sum tendered, which a plea of payment does not. (d) It is true that when the (a) 3 & 4 W. 4. c. 42. (b) 4 T. R. 194. The ground upon which the rule to plead double was discharged in that case was this," if the general issue be found for the defendant, it will then appear on the record that no debt is due, and yet that the defendant admits that he owes something. But this reason appears to apply to other cases in which inconsistent pleas are allowed to be pleaded together. In trespass quare clausum fregit, a defendant pleads not guilty, and a right of way. If the first issue be found for him, the record will shew that the defendant never did break and enter the plaintiff's close, while the same record will shew that the defendant has admitted that he broke and entered the plain- (c) 5 T. R. 97. So non est (d) The effect of a plea of tender and of payment of money into court under a rule of court or a judgment order, has been generally considered to be the same. See Middleton v. Brewer, Peake, N. P. C. 15.; Jenkins v. Tucker, 1 H. Bla. 90.; Gutteridge v. Smith, 2 H. Bla. 374.; Watkins v. Tower, 1840. THOMPSON v. JACKSON. 1840. THOMPSON V. JACKSON. courts were first called upon to put a construction upon 4 Ann. c. 16., it was considered that the statute was not intended to authorise the pleading of inconsistent pleas, such as non assumpsit and payment. But it was afterwards considered that the pleading of these two pleas together is tantamount only to saying, "Prove your demand, and I will shew that it has been satisfied." [Bosanquet J. It is also material to look at the form of the plea.] There is nothing in the joining of the fifth plea with the other, which tends to prevent the justice of the case being got at. [Erskine J. By the rule, the plaintiff, after the delivery of a plea of payment of money into court, is to be at liberty to reply to the same by accepting the sum so paid into court, in full satisfaction and discharge of the cause of action in respect of which it has been paid in, and to tax the costs of suit; and in case of non-payment thereof within forty-eight hours, to sign judgment for his costs of suit so taxed. Judgment could not be signed while there was a plea of the general issue on the record, until that issue had been disposed of by a verdict in favour of the plaintiff. Tindal C. J. Does not a plea in bar of the further maintenance of the action, admit that the action was well commenced? A plea puis darrein continuance, inasmuch as it only bars the further maintenance of the action, is an abandonment and waiver of all previous pleadings on the part of the defendant.](a) The plea puis darrein continuance is pleaded in a subsequent stage of the proceedings to that in which the pleadings, supposed to be waived by the plea puis 2 T. R. 280.; Bennett v. Fran- (a) A plea in bar puis darrein continuance regularly begins with a relictâ verificatione of the former plea: Reg. v. Episc. Lincoln. Bury, et Lingard, Co. Ent. 518. a.,; Barber v. Palmer, 1 Salk. 178.; 1 Ld. Raym. 693.; 12 Mod. 539. |