1846.

MOORE

v.

M.GHAN.

PARKE, B.—I am of the same opinion. It clearly appears from the affidavits that the defendant was about to go abroad, and there is no satisfactory answer to that. The defendant, therefore, is not entitled to be discharged on an appeal to this Court under the 1 & 2 Vict. c. 110, s. 6. The question then turns upon whether or not the proceedings are regular. Now it has been decided in several cases, that a capias directed to the sheriffs of Middlesex is irregular; and although the irregularity is one which could not mislead or prejudice, still it has been decided to be one, and it is important that we should preserve a uniformity of decision. I think, however, that the defect in the capias might be amended; therefore, as respects that, the order of my Brother Platt was right: but the order is bad in directing the copy to be amended. The Uniformity of Process Act not only requires that there should be a regular writ of capias, but also that a true copy be served on the defendant. In the present case, assuming the amendment to have been made in the writ, there would be a correct writ but not a true copy. That affords ground for saying that the defendant is not in lawful custody, and is entitled to be discharged.

ALDERSON, B.-I regret that the direction of a writ to the sheriffs, instead of sheriff, should ever have been held a sufficient ground for discharging a defendant out of custody: but since it has been so decided in several cases, I submit to their authority.

ROLFE, B., concurred.

Rule accordingly (a).

(a) See Wood v. Hume, ante, p. 139, note (a).

1846.

BEAZLEY V. BAILEY.

On

the

order made

for further

time to plead

peremptorily," does not preclude

the defendant

ON Tuesday, the 28th of July, 1846, the defendant A Judge's obtained, by consent, an order for four days' time to plead by consent "peremptorily," on the usual terms of pleading issuably, rejoining gratis, and taking short notice of trial, &c. Saturday, the 1st of August, the defendant served plaintiff with a summons for further time to plead, returnable at eleven o'clock, A. M., on the following Monday. The plaintiff took no notice of this summons, but late on the same day signed interlocutory judgment, on the ground that the defendant's time for pleading had expired. The Chief Baron having made an order that the judgment be set aside, with costs,

Lush moved to rescind the latter order. Some construction must be put upon the word "peremptory" introduced in the order of the 28th of July. It is submitted, that a peremptory order to plead, made by consent, amounts to an agreement between the defendant and the plaintiff that the former will no longer delay the cause, but plead within the specified time. It was, therefore, a breach of faith to apply for further time to plead. [Parke, B.—A peremptory order is the act of the Judge, and not an undertaking by the defendant. It means nothing more than this,—that the Judge, as at present advised, is resolved to grant the defendant no further time.] The present order cannot be considered as the act of the Judge, as it was drawn up by consent. In Gray v. Pennell (a), it was held, that the word "peremptorily," in a rule for time to declare, precluded the plaintiff from taking out more rules for further time. Littledale, J., there says, it "means that the party can take out no more rules for time to do the particular act required; and the party giving the rule may sign judgment when the peremptory rule has expired, if

(a) 1 Dowl. 120.

from afterwards applying by summous for further

time.

1846.

BEAZLEY

v.

BAILEY.

the opposite party has not taken the necessary step." [Parke, B.-That case only decides that, after a peremptory rule to declare, the plaintiff cannot obtain further time by the ordinary side-bar rule: it does not mean that he could not obtain it by summons before a Judge.] In Petrie v. Cullen (a), it was held, that a "peremptory undertaking" to try meant, that a party undertakes absolutely that the trial shall take place. [Alderson, B.-The contrary was held by this Court in the case of Lumley v. Dubourg (b).] At all events further time could not have been obtained by the ordinary summons, but the proper course was to make a special application to the Judge.

PARKE, B.-No rule ought to be granted. The peremptory order was not final, so as to preclude the defendant from applying for further time in the ordinary way by summons. Since, therefore, the summons operated as a stay of proceedings from the time it was returnable, the plaintiff's judgment signed after that time is irregular, and the Lord Chief Baron was right in setting it aside.

ALDERSON, B.-I am of the same opinion. In opposing the application for further time to plead, the plaintiff would have been strongly supported by the former order, but if the argument now used were to prevail, a peremptory order would preclude the allowance of further time in cases, which might be imagined, of the most urgent and absolute necessity; as, for instance, if some accident were to occur late on the day when the time limited for pleading was about to expire. As to the distinction attempted to be drawn between a special application to the Judge and a summons in the ordinary way, there appears to me to be no foundation whatever for it.

ROLFE, B., concurred.

Rule refused.

(a) inte, vol. 2, p. 604; S. C. 8 Scott, N. R. 705; 7 M. & G. 1020. (b) Ante, vol. 3, p. 80; S. C. 14 M. & W. 295.

1846.

TRISTON V. BARRINGTON.

DEBT for work and labour, money paid, &c.

In an action

of debt, a plea

in satisfaction and discharge of the causes of action in

the declaration

Pleas; first, nunquam indebitatus. Secondly, that after of payment the accruing of the causes of action, in the declaration mentioned, and before the commencement of this suit, to wit, on, &c., the defendant paid to the plaintiff, and the plaintiff then accepted and received from the defendant, divers large sums of money, in the whole amounting to 10002, in full satisfaction and discharge of all the causes of action in the declaration mentioned. Verification.

The plaintiff having signed judgment for damages, on the ground that the plea answered the debt only, and not the damages, Platt, B., at Chambers, ordered the judgment to be set aside with costs.

Hurlstone moved to rescind this order. The plea being in confession and avoidance, admits that the defendant was at one time indebted to the plaintiff, consequently the plaintiff would be entitled to recover some damages, unless the plea, in terms, answers the damages as well as the debt. It is submitted that it does not. The proper form of plea is to allege the payment in satisfaction of "the debt and damages occasioned by the detention thereof." In debt the cause of action is the debt itself; the damages are collateral, and, in most cases, merely nominal, in order to enable the plaintiff to obtain costs under the Statute of Gloucester. In the old forms of original writs, it was necessary to state the cause of action; and the writ of debt, which is given in Stephen on Pleading (a), runs thus:-"Command C. D., late of, &c., that justly and without delay, he render to A. B., the sum of pounds, of good and lawful money of Great Britain, which he owes to, and unjustly detains from him," &c.

(a) Page 12, 1st ed.

mentioned, is a plea to the

damages as

well as the

debt.

VOL. IV.

T

D. & L.

1846.

TRISTON

v.

BARRINGTON.

No mention whatever is made of the damages arising from the detention of the debt. But the writ of assumpsit expressly refers to the damages. After stating the promise, it proceeds thus:-"But the said C. D., to pay the same, or any part thereof, hath hitherto wholly refused, and still refuses, to the damage of the said A. B., of

pounds." This shews that in an action of debt, the debt itself is the substantial cause of action; whereas, in assumpsit, the cause of action is the damages. Another test may be applied. If the damages in an action of debt formed part of the cause of action, the plea of nunquam indebitatus would be a bad plea, for it answers the debt only, and not the damage; or, at best, it is but an argumentative denial of the damage. [Parke, B.-No: it denies the foundation of the cause of action; if the defendant were never indebted to the plaintiff, it is impossible that the plaintiff could have sustained any damage]. In the recent case of Lowe v. Steel (a), where, in an action of debt, a plea of payment of money into Court, took no notice of the damages, this Court held the plea bad, although it followed the form given by Reg. Gen., Trin. Term, 1 Vict. And in Henry v. Earl (b), where a plea of payment of money into Court, was pleaded to a portion of the debt only, and not to the damages, the Court held the plea a good answer to so much as it was pleaded to, and that the plaintiff might sign judgment for any damage not answered by the plea.

PARKE, B.-There ought to be no rule. The defendant pleads that he paid a sum of money "in full satisfaction and discharge of all the causes of action in the declaration mentioned." Now the "cause of action" is the debt, and damages for detaining it; so that the meaning of this plea is, that a certain sum of money was paid in discharge both