540 EMBARRASSING, &c. first two counts, pleaded a warranty and a breach of it, without traversing or taking further notice of the count on an account stated.-Held, that the defence was embarrassing, it being uncertain whether it was intended to be an answer to the whole action, although it only answered part of it, or whether it was intended only to answer the two first counts, leaving it open to the defendant to mark judgment on the count on an account stated, as for want of a defence. Q. B. Garrett v. Waldron xxiv 3. To a plaint containing three counts (first), by drawer against acceptor on a bill of exchange (second), for goods sold and delivered, and (third) upon an account stated, the defendant pleaded, as to the first, second and third counts, and the causes of action therein, that, at the date of the acceptance of the said bill, he was an infant.Held, that this plea was embarrassing, because, whilst purporting to answer all the causes of action in the plaint, it, in fact, only answered one of them. Q. B. O'Driscoll v. Croker NEW DEFENCE. INDORSEMENT OF SERVICE. See PRACTICE, 7. INFANCY. See NON-NECESSARIES. PRACTICE, 2. INFERIOR COURT. See CIVIL-BILl Ejectment, 2. ISSUES. See PLEADING, 1. INTERPLEADER. Interpleader order, under 9 & 10 Vic., c. 64, refused, where the executor of the party whose life has been assured brings an action against the Company, the other parties claiming an interest in the policy having threatened, but not having instituted, proceedings against the Company. Q. B. Bevan v. Britannia Life Assurance Company xxvi JUDGMENT BY DEFAULT. See PRACTICE, 2. JUDGMENTS OF ASSETS QUANDO. See PRACTICE, 5. JUDGMENT, SATISFACTION OF. See CERTIFICATE OF MAGISTRATE OF. MOTION. See PRACTICE, 9. MOTION TO CHANGE VENUE. See EJECTMENt, 1, 2. NEW DEFENCE AFTER TRIAL HAD. See PLEADING, 3. NEW TRIAL. Conditional order for a new trial granted, on motion of Counsel on behalf of the executors of a sole defendant, who had died since the trial was had. Q. B. Kinneen v. Persse xxiii NON-NECESSARIES. In an action for non-necessaries supplied to the defendant during his minority, the plaintiff, being resident out of the jurisdiction, was ordered to give security for costs, minority being, under these circumstances, a meritorious defence. C. P. Dickson v. Buller xiii NO RULE. See PRACTICE, 9. NOTICE. See PRACTICE, 4. SECURITY FOR COSTS, 2. NUL TIEL RECORD. See SHAM PLEA. PENAL RENT. See CIVIL-BILL EJECTMENT, 2. PLEADING. See PRACTICE, 2. 1. In an action for slander, the defendant traversed generally the speaking of the slanderous words.-Held, that the plaintiff was entitled to an issue, whether the defendant spoke or published the words, or any or which of them, as alleged. Q. B. Knight v. Lynch xi 2. An allegation that A B "indorsed" a bill of exchange is insufficient. It should be stated that he indorsed to some person. C. P. M'Kenna v. Graham xiii 3. Every material averment in a plaint which is not traversed by the defence is thereby conclusively admitted: Common Law Procedure Act 1853, s. 78. A Judge at the trial will not amend pleadings, under the Common Law Procedure Act 1853, s. 231, if the result of doing so would be a surprise upon either party. To a count complaining that the defendant had shipped, at Odessa, 3160 chetworts (equivalent to 2275 quarters) of wheat, on board a vessel of the defendants, which the defendants received to be carried by them, for freight, from one port to another, and averring that defendants had delivered a less quantity than that shipped, by thirty and seven-tenth quarters, defendant pleaded three defences, but in none of them traversed the quantity shipped.-Held, that the quantity shipped was conclusively admitted by the defence and leave refused, after the trial, in which a verdict was had for the plaintiff for the amount claimed for damages, to file a new defence (on terms), traversing the quantity shipped; because there was no affidavit of the truth of such defence, and because, as such defence might have been originally pleaded to the action, the defendant was not taken by surprise at the trial. Q. B. Adams v. Atkinson xviii as 4. To a count alleging that the defendant, "maliciously, and without reasonable and probable cause, saulted the plaintiff, and caused him to be imprisoned," &c., the defendant pleaded, "that he did not maliciously, or without reasonable or probable cause, assault the plaintiff or cause him to be imprisoned, as in said count complained of."-Held, that the plea was bad, as putting in issue two distinct averments.[PIGOT, C. B., dissentiente.]-E. Brennan v. Wil 4. In this Court, an application for liberty to plead and demur must be upon notice. Q. B. M'Lester v. Fagan XXV 5. To an action against an executrix, for work and labour done and materials provided, and money paid for the testator in his lifetime, and on an account stated, the defendant pleaded plene administravit, plene administravit præter, traverses of the counts in the plaint, and a plea of payment to the plaintiff by the testator, in his lifetime. The plaintiff then entered a side-bar rule for judgment of assets quando, &c., on the two first pleas.Held, that the defendant was entitled to withdraw the remaining pleas, on payment to the plaintiff of his costs incurred in respect only of the pleas withdrawn. Q. B. Sterne v. Jones xxxi 6. A defendant does not waive his right to security for costs, by obtaining an order to extend the time for pleading, before making his application for such security. E. Clarke v. Riordan 7. The indorsement of service by the process-server upon the writ of summons and plaint, required by the 31st section of the Common Law Procedure Act 1853, must be made where the Court directs a special mode of service, as well as where the service is personal. E. Rogers v. Burke xxxiv 8. In a case which, from its nature, is likely to involve an inquiry into the political acts or conduct of one party, at the instance of a person or party of opposite political sentiments, the Court will direct a special jury to be struck under the old system. Cham. M Lester v. Fegan Consol. xliii xlv 9. "No rule " pronounced upon a motion prevents a renewal of the same motion. C. P. Hargreave v. Meade 10. Upon an application for security for costs (the plaintiff residing out of the jurisdiction), the Court will not permit the defendant's general affidavit of merits to be contradicted by the plaintiff. The defendant may make such application after defence filed, provided he serves notice that his defence is filed without prejudice to such application. C. P. Gallon v. Armstrong xlvi PROCEDURE ACT. See CERTIFICATE FOR COSTS. PROMISSORY NOTE. See EMBARRASSING DEFENCE, 1. PUTTING OR LETTING INTO See CIVIL-BILL EJECTMENT, 1. REFERENCE TO ARBITRATON. SET-OFF, PLEA OF. In a plea of set-off, the defendant, by a clerical error, used the word "plaintiff" for "defendant," and vice versa. Upon a motion to strike out this defence as embarrasing, the Court, considering that the motion might have been rendered unnecessary, had the plaintiff called upon the defendant, by notice, to amend, allowed the defendant to amend the plea by substituting the word "plaintiff" for the word "defendant," and vice versa ; and refused to make any rule upon the motion, and directed each party to 2. The Court will, in certain cases, allow a defendant to plead infancy, who, through ignorance that such a defence was valid, had allowed judgment to go by default. C. P. M'Master v. M'Assey xii 3. The Court will not allow satisfaction to be entered upon the judgment roll, in case of a judgment given as a collateral security, and where the rights of third parties may intervene, unless the conusee of the judgment be represented. C. P. Morgan v. Somerville 4. In this Court, an application for liberty to plead and demur must be upon notice. Q. B. M'Lester v. Fagan XV XXV 5. To an action against an executrix, for work and labour done and materials provided, and money paid for the testator in his lifetime, and on an account stated, the defendant pleaded plene administravit, plene administravit præter, traverses of the counts in the plaint, and a plea of payment to the plaintiff by the testator, in his lifetime. The plaintiff then entered a side-bar rule for judgment of assets quando, &c., on the two first pleas.— Held, that the defendant was entitled to withdraw the remaining pleas, on payment to the plaintiff of his costs incurred in respect only of the pleas withdrawn. Q. B. Sterne v. Jones xxxi 6. A defendant does not waive his right to security for costs, by obtaining an order to extend the time for pleading, before making his application for such security. E. Clarke v. Riordan xxxiv 7. The indorsement of service by the process-server upon the writ of summons and plaint, required by the 31st section of the Common Law Procedure Act 1853, must be made where the Court directs a special mode of service, as well as where the service is personal. E. Rogers v. Burke xxxiv 8. In a case which, from its nature, is likely to involve an inquiry into the political acts or conduct of one party, at the instance of a person or party of opposite political sentiments, the Court will direct a special jury to be struck under the old system. Consol. Cham. M Lester v. Fegan xliii PUTTING OR LETTING INTO OCCUPATION OR POSSESSION BY PERMISSION. See CIVIL-BILL EJECTMENT, 1. REFERENCE TO ARBITRATON. See CIVIL-BILL APPEAL. |