issue upon the averment in the plea, that at the time of the commencement of this suit the defendant was not indebted to the plaintiff to a greater amount than the said sum of 11. 13s. 8d., and that the plea ought to have been pleaded to the whole of the declaration, and not to a part of it only. W. H. Watson argued in support of the demurrer, in Michaelmas term last (a). The plea is pleaded only to part of the declaration, and yet contains an answer to the whole, it is therefore bad on special demurrer: Gray v. Pindar (b). Formerly such a plea was a discontinuance of the action; Serjt. Williams's note to Earl of Manchester v. Vale (c); but since the statute 4 & 5 Ann. c. 16, which allows of double pleading, it is only bad on demurrer. [Lord Denman C. J. Was the general issue pleaded here?] Most likely. [Patteson J. Although our rule (d) directs only such parts of the pleadings, to which the demurrer relates, to be set out, it may be very often material to look at the whole of the record.] If there is a plea of nunquam indebitatus, it does not cure the objection. Secondly, there is in the plea no averment which the plaintiff can safely traverse. The plea ought to have been addressed to the whole cause of action. [Patteson J. How can that be? for suppose the plaintiff claimed 1007. in his declaration, still the plea of a forty shillings Court of Requests' Act would be apparently no answer.] It might be so pleaded by averring that the defendant is not indebted to the amount of 40s., which is the usual form; and if the issue is then found against the plaintiff, the defendant is entitled to judgment. But suppose the plaintiff here had traversed the allegation that the defendant was not indebted to a greater sum than 17. 13s. 8d., and the jury had found that he was indebted in the sum of 1l. 13s. 9d., that would have been an immaterial finding. [Putteson J. You (a) Nov. 15th, before Lord Denman C. J., Patteson, Williams and Coleridge Js. (b) 2 B. & P. 427. (c) 1 Wms. Saund. 28, n. (3). 1839. BURROUGHS v. HODGSON, 1839. BURROUGHS บ. HODGSON. might have replied that the defendant was indebted to you in a sum above 40s.] Perhaps so, but then the plea would not be traversed. A plaintiff ought to be enabled to traverse some specific allegation of the plea. E. V. Williams, contrà. Although no doubt nunquam indebitatus is pleaded to the rest of the declaration, still, as it cannot be contended that the goodness or badness of the plea demurred to depends on what other plea may be pleaded, the Court will not look to the rest of the record. If it is contended that this plea is bad, because it is joined with a plea of nunquam indebitatus, it should have been demurred to as a misjoinder. Suppose that the other plea had been the Statute of Limitations, in what other form than the present could the defence as to 17. 15s. 8d. have been pleaded? [Lord Denman C. J. In the view I take of the record, nunquam indebitatus as to part and of the Court of Requests' Act to the residue, form but one plea.] If that is so, the plea is unexceptionable, and that was the form of the plea in Gardner v. Jessop (a). Suppose the plea had been pleaded to the whole debt, and on issue being taken upon the averment of residence within the city of Westminster, a verdict had been found against the defendant, the whole plea would have failed, and the action being in debt, the plaintiff would have had judgment for the whole debt alleged in the declaration. It is true that this might have been avoided, by the defendant pleading the general issue. But the rules of pleading depend on the common law, and not on the statute of Anne, which allows the defendant to plead several matters. The defendant is not obliged to take the benefit of that statute, and the case is to be looked at as if it were before that statute, and the defendant had been forced to rely on a single plea. As to the objection that the plea begins as an answer to part only, and yet contains an answer to the whole declaration, in Gray v. Pindar (b), the addressing the plea to the whole decla(a) 2 Wils. 42. (b) 2 B. & P. 427. ration was wholly unnecessary with reference to the matter as to which the plea was pleaded. But here the averment as to the 17. 13s. 8d., is part of the defence under the statute. The plea is not bad for containing an averment in itself a defence, when inserted for the purpose of introducing another defence, on which the defendant relies. This is proved by the well-known case of the plea, that after the cause of action the plaintiff took husband, and that the husband afterwards released the defendant. There, though the coverture is itself a defence as well as the release, yet the averment of coverture does not vitiate, because it is a necessary introduction to that of the release (a). [Patteson J. How do you answer the objection that you have not made any averment on which the plaintiff could take a traverse?] The plaintiff could have easily replied that the debt amounted to more than 40s. It is not necessary that the traverse should follow the exact words of the preceding pleading. Indeed if this were done, it would in most instances be incorrect, for the traverse would be either too large or too narrow. The plea contains an averment which shews à fortiori that the debt was under 40s. W. H. Watson, in reply. No answer has been given to Gray v. Pindur (b), that this plea professes to answer part, and yet is substantially an answer to the whole declaration. In Gardner v. Jessop (c), the plea was only pleaded as to 1. Ss., non assumpsit being pleaded to the residue. It is true the plaintiff might have framed a replication on which he might have succeeded, but the defendant is bound to plead a plea on which a traverse can be taken. Cur. adv. vult. Lord DENMAN C. J. on this day delivered the judgment of the Court.-This was an action of debt, for goods 1839. BURROUGHS v. HODGSON. (a) Dame Audley's case, Moore, 25. (b) 2 B. & P. 427. (c) 2 Wils. 42. 1839. BURROUGHS v. HODGSON. sold and delivered. The defendant pleaded as to all but 17. 13s. 8d. that he never was indebted, and as to that sum the 6 & 7 Will. 4, c. cxxxvii, commonly called the Westminster Court of Requests' Act. This part of the plea contained amongst other averments the following: "And the defendant further says, that at the time of the commencement of this suit, he the defendant was not indebted to the plaintiff to a greater amount than the said sum of 11. 15s. 8d." The plaintiff demurred, and upon the argument two grounds of demurrer were insisted on; 1st, that the plea begins as an answer to part, but is in truth an answer to the whole of the declaration; 2dly, that no material issue can be taken on the averment above set forth, inasmuch as though the defendant should be found indebted in a greater amount than 17. 13s. Sd., yet if the amount were under 40s. the case would be equally within the Court of Requests' Act, and therefore the averment, in order to be traversable, ought to have been "that the defendant was not indebted to the amount of 40s." With respect to the first objection, it appears upon an examination of the precedents, that it has been usual to plead such a plea to the whole declaration. The form usually adopted is in truth a denial of part, and a confession and avoidance of the residue of the declaration, yet not shewing the parts in the introduction of the plea. On the present record, the parts are severed in the introduction to the plea, for the answer of "never indebted" to part and of the Court of Requests' Act to the residue, together form but one plea to the whole declaration, and in this respect the plea is more in conformity with the ordinary rules of pleading than that which is usually adopted. There is nothing inconsistent in the statement in the introduction, that the 17. 13s. Sd. is "parcel of the several monies in which the defendant is in the declaration mentioned to have been indebted to the plaintiff," with a denial that he was in truth indebted in any further sum; and the peculiar nature of the defence given by the Court of Requests' Act, makes it almost impossible to shape that defence according to the strict rules of pleading. But we are not obliged to determine this point, for upon the second objection we are of opinion that judgment must be given for the plaintiff. If any averment at all, as to the amount of the debt, be necessary, the form commonly used is clearly the correct and proper one, namely, that the defendant was not indebted to the plaintiff in any sums of money amounting to 40s." or to the amount of 40s." On such an averment a material issue might be taken, and though it is true that if the present averment be traversed and found for the defendant, it would be material and conclusive, yet if found for the plaintiff it would be otherwise. The plaintiff however is entitled to have the plea of the defendant so framed as that the averments in it, if traversed, will be material and conclusive, whichever way they may be found, and their not being so framed is a good ground of demurrer. If indeed the averment was immaterial, and might be struck out altogether, the plaintiff would have no ground to complain; but it is clear that the defendant must shew in some way upon the face of his plea that the cause of action is under 40s., otherwise the jurisdiction of this Court is not taken. away by the Court of Requests' Act. The averment therefore cannot be said to be immaterial, and cannot be struck out. In the case of Gardner v. Jessop (a), the plea contained no such averment, and was in other respects similar to the present plea; but that case turned upon the replication, which raised an entirely different point, and the form of the plea was not discussed. Judgment for the plaintiff. (a) 2 Wils. 42. 1839. BURROUGHS บ. HODGSON. |