and probably also a plea of payment in accord and satisfaction, may, generally speaking, be made as to several or part of several counts without stating how much is paid upon each.

The rule that payment of a smaller sum cannot be pleaded as an accord and satisfaction of a larger, is also of importance to be remembered, and requires to be observed, even though the plea is in answer to a general declaration in indebitatus assumpsit, where it might be considered the plaintiff had stated only general sums. See Down v. Hatcher, 10 Ad. & E. 121.

In Tattersall v. Parkinson this rule, that the sum pleaded in payment must not be less than the whole sum admitted to be due, was held to be likewise applicable to pleas of payment into court, and received in this respect a new and twofold illustration. The first count of the declaration was upon a bill of exchange for 261. 13s. 2d.; the second was an indebitatus count for 301. for money lent and on an account stated. The defendant pleaded several pleas, and lastly as to 107. 98. 1d., parcel of the first count, and 10l. 9s. 1d. parcel of the last count, (excepted from the former pleas), payment into court of 117. in the form given by R. G. T. 1 Vict., concluding "that the plaintiff has not sustained damages to a greater amount than the said sum of 117. in respect of the cause of action in the introductory part of this plea mentioned." To this plea there was a special demurrer. The judgment of the court was delivered by Parke, B., and the plea pronounced to be bad upon two grounds. Firstly, it was decided to be bad because pleaded to a count upon a bill of exchange for an amount larger than the sum paid in." Where one of the counts is on a bill of exchange, the difficulty arises which was pointed out in that case of Jourdain v. Johnson, but not decided, viz. that if less than the amount of the bill of exchange should be considered as paid in on that count, the plea would be bad; for if it admitted the bill, it admitted primâ facie the precise sum to be due on it, and less than that would not legally satisfy it; or if it should be considered in the nature of a plea of non-assumpsit to the remainder, the new rules forbid such a plea, and the record would contain no proper answer to the residue, unless there was an allegation of some special ground of defence, as part payment or failure of consideration as to part; and we do not see how this objection can be properly surmounted if this demurrer properly raises it, and we think it does." Therefore it would appear that a plea of payment as to part of an amount of a bill of exchange is in no case good, unless such plea contain a defence as to the rest of the amount. The other ground upon which this plea was held defective has reference to the other count to which the plea is in part pleaded.

Deducting from the sum paid into court 107. 9s. 1d., as applicable to the first count, it is seen the sum of 10s. 11d. only remains as applicable to the last. Now a count in indebitatus assumpsit must be construed to claim a sum as due on one or more liquidated or unliquidated contracts. The plea admits a certain sum to be due upon such a count. But if the sum admitted is liquidated, or an aggregate of liquidated contracts, the plaintiff cannot have sustained less damage than the liquidated demand for that sum. Therefore on this second and independent ground it was decided that the form adopted in this case of pleading payment of a less sum of money into court than the sum pleaded to in an indebitatus count, with no answer to the difference except that no more damages have been sustained, is objectionable; and the court intimated that the practice of pleading the payment of money into court to so much of the declaration as is equal to the amount paid in, is the best form that can be adopted.

NONJOINDER.

Joll v. Lord Curzon, 11 Jurist, C. B. 737.

GODSON V. Good, 6 Taunt. 95, is the case generally cited to show that upon a plea in abatement by the defendant for the nonjoinder of his co-contractors, the plea must name them all, and that if it omit any one of them the issue will be found for the plaintiff. The rule thus laid down has never been questioned. The reason of it is that a plea in abatement must give the plaintiff a better writ; which a plea that does not name all fails to do, as it leaves the plaintiff to the risk of being met in a second action by another plea in abatement as to those not before named. Therefore to give a better writ implies a writ against all the co-contractors. But stat. 3 & 4 Will. IV. c. 42, s. 8, has imposed certain restrictions upon the right of a defendant to plead in abatement. It enacts that no plea in abatement for the nonjoinder of any person as a co-defendant shall be allowed in any court of common law, unless it shall be stated in such plea that such person is resident within the jurisdiction of the court, and unless the place of residence of such person shall be stated with convenient certainty in an affidavit verifying such plea.

In the case of Joll v. Lord Curzon the defendant pleaded in abatement, that the promise was made with certain other persons, naming them, and alleging that they were resident within the

jurisdiction of the court, and also with nine other persons, of whom it was alleged they were beyond and out of such jurisdiction. Upon demurrer to this plea the question was, whether the statute had not under these circumstances in effect deprived the defendant of his plea in abatement. Here, we see the names of all the co-contractors are stated as required before the statute, whilst certain of them are out of regard to that enactment stated to be within the jurisdiction. But it was objected that this plea since the statute did not fulfil the inherent condition of a plea in abatement by giving the plaintiff a better writ, and was therefore bad: and of this opinion were the court. It is pointed out that the statute was never intended to vary the rules of pleading upon this subject. Wilde C. J.: "The statute was intended to relieve the plaintiff from the dilatory and expensive process of proceeding to outlawry against those of the co-contractors mentioned in the plea, and who were abroad, but was not intended to work any other alteration. For this purpose the statute requires that the defendant shall aver that all the co-contractors whom he seeks to make parties are within the jurisdiction; if he cannot do this, then he is not in a situation to avail himself of this plea. The plea in abatement ought to give the plaintiff a good writ against all the co-contractors; this plea does not, but gives an excuse for not doing so; inasmuch, therefore, as it does not show that the plaintiff has the power of suing all, the condition fails, and the plea cannot be supported."

It follows from this decision that if the defendant cannot give the residence of all his co-contractors, he is in such case also by the terms of the statute deprived of his plea in abatement upon precisely similar grounds.

PLEA TO THE JURISDICTION-SOVEREIGN PRINCE.

Munden v. Duke of Brunswick, 16 Law Jour. Q. B. 300. THIS was an action of debt upon a deed granting an annuity to the plaintiff brought against the Duke of Brunswick. Defendant pleaded that the court ought not to take cognizance of the action, because at the time of making the deed he was a sovereign prince and made it in his own dominions, and that he still was entitled to the rights, privileges, and prerogatives which belonged to him in that character. Replication that the deed was not a matter or act of state, but a private debt, and that before the accruing of the cause of action, defendant had quitted his dominions and

come to reside in this country as a private individual. To this there was a demurrer assigning several causes. The court, after taking time to consider, gave judgment for the plaintiff upon the insufficiency of the plea. As a plea to the jurisdiction it was held to be defective, for omitting to state that the defendant was a sovereign at the time of commencing the suit, or of plea pleaded; whilst the statement, he was justly entitled to the privileges and prerogatives belonging to that character,-an opinion formed by himself and very easily erroneous, was held by no means to supply the want of such an allegation. Upon the question of the amenability of a sovereign prince for an act done by him in his own dominions, the following interesting remarks are thrown out by the court. "If indeed being a sovereign prince de facto, he had in that character made such a contract with the plaintiff, and so had not bound himself as an individual, that might, perhaps, constitute a good defence to the action, not a good plea to the jurisdiction. But sovereign princes may contract obligations in their private capacity upon obligations purely personal. Whether by the laws of their own country, these might be enforced, we have no means of knowing there is no presumption either way, neither is there any presumption that this contract is an act of state; the contrary would be more naturally inferred from the nature of it. Without an averment to that effect, the plea tells us nothing but that the defendant, when for a good consideration he entered into a contract, was a sovereign prince. This is clearly insufficient."

Short Notes of New Books.

Precedents in Pleading; with copious Notes on Pleading, Practice, and Evidence. By the late Joseph Chitty, jun., Esq. The second edition, containing References to all the Cases decided upon the New Rules of Pleading, and short Preliminary Observations on the more important subjects. By Henry Pearson, Esq. of the Middle Temple, Barrister at Law. In two Parts, Part II. London: W. Benning & Co. 1847.

By the publication of the second part of this work, the profession have before them the most valuable and most complete Collection of Precedents in Pleading extant. Nor is it a mere collection of precedents; the copious notes scattered throughout the volume, and the preliminary observations which are prefixed to the more important subjects, supply a store of most valuable information upon Practice, Pleading, and Evidence. Of the general contents of the work, it is unnecessary to speak; as the profession is already familiar with them, but with the manner in which the editor has performed his task, it becomes us to say one word. It will be remembered that in a former number we noticed at some length the first part of the Precedents, and in doing so it became our duty as we then thought, and still do think, to pass some strictures upon what to us appeared the somewhat ungenerous tone of the editor's preface. We also pointed out, as we were bound to do, some few errors which the learned editor had inadvertently fallen into, and which we are glad to see he has had the care to correct in the addenda to the now completed volume. So far, we rest satisfied with what we have done, and hope and believe that neither Mr. Pearson nor the profession can charge us with injustice. Be that as it may, we must repudiate all intention of speaking in slighting terms of the manner in which the work has been executed; indeed, so far from it, we express our sincere conviction when we say, that the profession is indebted to Mr. Pearson for the care and ability with which he has upon the whole performed his difficult task, notwithstanding the defects we have already pointed

out.

We cannot conclude these remarks without thanking Mr. Pearson for the valuable collection of modern authorities which have been gathered together in this new edition of the Precedents in Pleading, and for the careful and elaborate index which concludes the whole volume.