1833. PARTRIDGE v. SCOTT. Exch. of Pleas, that act, the lapse of time, under these peculiar circumstances, would probably make no difference. For, the proper construction of that act requires that the easement should have been enjoyed for twenty years under a claim of right. Here neither party was acquainted with the fact that the easement was actually used at all; for, neither party knew of the excavation below the house. We should probably, therefore, have been of opinion that there was no user of the easement under a claim of right, and that Lord Tenterden's Act therefore would not apply to a case like this. However, the facts of this special case do not raise that point. We think, upon the whole, that the defendants are entitled to our judgment. Judgment for the defendants. PARKER, Executrix of C. E. PARKER, deceased, v. RILEY. When a plea to ASSUMPSIT.-The declaration stated that heretofore a declaration on a contract amounts to the general issue, the replication de injuriâ is bad. Semble, that it is also bad where the plea is in avoidance of the contract itself. But such a re plication is only, bad upon special demurrer. Where there and during the lifetime of C. E. Parker, deceased, to wit, on &c., the defendant was indebted to the said C. E. Parker, deceased, in the sum of 400l., for the work and labour, care, diligence, and attendance of the said C. E. Parker, deceased, as aforesaid, by him and his clerks before that time done, performed, and bestowed as the attorney and solicitor of and for the said defendant, and otherwise, and upon his retainer, in and about prosecuting, defending, and soliciting of divers causes and suits and certain business for the said defendant upon his retainer and at his request, is a demurrer to and for fees due and of right payable to the said plaintiff in respect thereof; and also for other the work and labour, a pleading, and the party joining in demurrer does not state in the margin of his demurrer book any objection to a former pleading, semble, that he is not entitled to object to its sufficiency on the argument; especially where it is only cause of special demurrer. 1837. PARKER v. RILEY. care, diligence, and attendance of the said C. E. Parker, Exch. of Pleas, deceased, as aforesaid, by him before then done, performed, and bestowed in and about the drawing, copying, and engrossing of divers pleadings, briefs, and writings for the said defendant, upon his like retainer and request, and in and about other the business of the said defendant, and for him and at his request; and also for divers journies and other attendances by the said C. E. Parker, deceased, as aforesaid, before then made, performed, and given in and about the business of the said defendant, and for him, and at his like retainer and request, &c. There were also counts for money paid, money lent, and on an account stated. The defendant pleaded, thirdly, as to the first and second counts of the declaration, that the said work and labour, care, diligence, and attendance in the first count mentioned were respectively done, performed, and bestowed by one Richard Stockley, and by clerks and servants employed by the said Richard Stockley by his direction and under his superintendence, management, and control, in and about the commencing, prosecuting, and defending the said causes and suits in the declaration mentioned, the same being certain causes and suits prosecuted and defended for and on behalf of the defendant by the said R. Stockley, in the name but without the control or interference of the said C. E. Parker, in his then Majesty's Courts of King's Bench and Common Pleas at Westminster; and that the said pleadings, briefs, and writings in the declaration also mentioned were drawn, copied, and engrossed in the course and for the purpose of prosecuting and defending the said causes and suits; and that the said journies and attendances in the declaration mentioned were performed and given by the said R. Stockley, and clerks and servants employed by him and by his direction, in the course and for the purpose of prosecuting the said causes and suits, and in relation Exch. of Pleas, thereto; and that the said money in the second count 1838. PARKER บ. RILEY, mentioned was money paid and disbursed by the said R. Stockley in and about the prosecution and defence of the said causes and suits: And the defendant further saith, that the said R. Stockley never was admitted to act as an attorney or solicitor in the said Courts or either of them, or in any Court of law or equity, in such manner as is directed by the statute in such case made and provided, or a person duly qualified to act as an attorney or solicitor; and he the said R. Stockley, before and for the whole period at and during which the said work and labour, care, diligence, and attendance, were done, performed, and bestowed, and the said journies and attendances were performed and given, as in the declaration alleged, was a person unqualified to act or practise as an attorney or solicitor: And the defendant further saith, that the said C. E. Parker, before and during the period last aforesaid, was a sworn attorney of his then Majesty's Courts of King's Bench and Common Pleas at Westminster; and that the said C. E. Parker, being such sworn attorney, and then well knowing that the said R. Stockley was not duly qualified to act as an attorney or solicitor, and that the said R. Stockley was such unqualified person as aforesaid, did then permit and suffer the said R. Stockley to make use of the name of him the said C. E. Parker, upon the account and for the profit of the said R. Stockley, so being such unqualified person as aforesaid; and the said R. Stockley did accordingly, in pursuance of such permission and sufferance, make use of the name of the said C. E. Parker with his privity and knowledge, and for the profit of the said R. Stockley, in and about the commencing, prosecuting, and defending the said causes and suits respectively, and in and about the drawing, copying, and engrossing the said pleadings, briefs, and writings, contrary to the statute in such case made and provided. Verification. To this plea the plaintiff replied, that the defendant, of 1838. his own wrong, and without the cause by him in the plea Exch. of Pleas, in that behalf alleged, broke his said promise in the declaration mentioned, so far as the same related to the said first and second counts thereof. General demurrer, and joinder. The point stated for argument on the part of the defendant was, that the replication de injuriâ suâ propriâ is improper, inasmuch as the third plea does not contain matter of excuse for the breach of the promise in the declaration mentioned, but alleges facts shewing that no valid promise ever was made as alleged. The case was argued in Michaelmas Term last by Swann, in support of the demurrer.-The replication de injuriâ cannot be supported, as an answer to such a plea as the present. There are many cases which have been decided on the sufficiency of replications in this form in assumpsit; and the general replication has been held to be good where the plea admits the promise to be valid, but amounts only to matter of excuse for the non-performance of it but where the plea, as here, amounts to a denial of the promise, then the replication de injuriâ is not applicable. Isaac v. Farrar (a), where the general replication was held good in assumpsit, is the latest case; and there the Lord Chief Baron, in delivering the judgment of the Court, refers to the former cases, and distinguishes them. He says "No case in which the general replication has been held to be improper, resembles the present. In Crisp v. Griffiths (b), the plea was not matter of excuse for the breach of contract, but of subsequent satisfaction for that breach. In Solly v. Neish (c), the plea was a denial of the promise. So, in Whittaker v. Mason (d), the plea (a) 1 M. & W. 65. (d) 2 Bing. N. C. 359; 2 Scott, 567. PARKER v. RILEY. 1838. PARKER ย. RILEY. Exch. of Pleas, denied the contract as alleged; and although the Court intimated that it might be doubtful whether a traverse in this form was applicable to any action on promises, they abstained from deciding that question." There the replication was held good, because in the plea the defendant admitted the facts from which a promise arose, but excused himself by stating facts which rendered him not liable. It is only in such cases that this replication is admissible. [Parke, B.-Is not your plea bad, as amounting to the general issue?] It may be so; but it has not been demurred to, and the objection has been waived by pleading over. In Crisp v. Griffiths, the declaration was in debt on a promissory note; the plea was, that, after the making of the note, the plaintiff drew a bill of exchange on the defendant, which he accepted and delivered to the plaintiff, who took it for and on account of the note, and afterwards indorsed it to a person unknown to the defendant, and who, at the commencement of the suit, was the holder thereof, and entitled to sue the defendant thereon. To this there was the replication de injuriâ; and the Court held that the plea was bad, but considered it doubtful whether the replication was good. Parke, B., in the course of the argument, says: "This plea does not amount merely to matter of excuse; it is more in the nature of an accord and satisfaction, though the right to sue may revive by the nonpayment of the bill." And again-" If several facts can be allowed to be put in issue by one replication, is this the right form? It appears to me that some better form ought to be adopted than the present." In Solly v. Neish the replication de injuriâ was held to be bad, because the plea was not matter of excuse, but a denial of the promise to the plaintiff. In the present case, the plea denies every matter from which the promise arises. [Parke, B.-The strength of your argument is, that this is a mere denial that the contract was made with the plaintiff, |