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common course to assign a breach of the condition by nonpayment generally (a). You must contend that a surety may discharge himself at any time.] This action is not brought against the living surety. The plaintiff has thought proper to sue the representative of the deceased obligor. Brigstock v. Stanion (b) shews that a precise breach must be alleged. Austin v. Jervis (c). So the cases collected in Com. Dig. Pleader, E. 5. and Latch, 16 (d), Rowe v. Roach (e), Long v. Jackson (f), Filewood v. Popplewell (g), Chandler v. Roberts (h), Cornwallis v. Savery (i). [Bayley, J. You must either confess and avoid, or traverse. Here you do not confess the whole breach. According to this mode of pleading the defendant might go on in infinitum.] The plaintiffs are the only persons who have the opportunity of knowing what has been received. [Bayley, J. You may not know what sums are received. Holroyd, J. It is for you to show the whole amount.] In Cornwallis v. Savery it was held, that in assigning a breach, you are bound to conclude to the Court. [Littledale, J. The correct way would have been to take issue upon the first breach only. You say they ought to have concluded with a verification. You have an opportunity of contesting the truth of the breach assigned under the conclusion to the country. There was no necessity for giving the defendant a second opportunity of denying either part.] If the plaintiff is answered only in part, he should have taken judgment for the residue. [Littledale, J. The fault of the defendant's plea does not consist in answering only a part. You take upon yourself to say, that the breach assigned is confined to six sums. Holroyd, J. A party is not allowed to plead specially matter which is capable of being given in evidence, where it is not doubtful matter of
(a) 2 Burr. 772.
(g) Ibid. 61.
(i) 2 Burr. 772. And see 1 Wms. Saund. 116, n.; 2 Wms. Saund. 410, n.; Ibid. 411; Willcocks v. Nichols, 1 Price, 109.
law (a). This objection applies also to the subsequent pleadings.] By assigning a breach in the replication, the plaintiff passes by the bar, and might stand upon the breach assigned. The plaintiff cannot have judgment without a breach, though the plea should be bad. [Littledale, J. Suppose that in the sur-rejoinder the plaintiff had said, that the sums mentioned in the rejoinder were not the same as those alleged in the replication; the conclusion to the country would then have been proper. That is the surrejoinder in substance; it is merely an amplification. Departure is only ground of special demurrer.]
Chilton, contrà, was stopped by the Court.
BAYLEY, J.-I have no doubt as to the validity of the sur-rejoinder; I have a strong opinion as to the plea. The plaintiff was not bound to set out from whom received. Shum v. Farrington (b), Bath v. Webb (c). Though the party is surety, or executor of surety, the question is to be considered in the same manner as if he were a principal. The sur-rejoinder does not allege new matter. It merely denies one of the allegations in the rejoinder. If it had concluded with a verification, defendant, in his rebutter, might have said, if you are not suing in respect of these sums received of C. B. and M., then I say the sums were received of three other persons; and so he might go through the London Directory. The common and old answer to a replication of this kind is, to allege payment, and conclude to the country.
HOLROYD, J.-The regular way of rejoining would have been to allege that he duly accounted for these sums. The difficulty has arisen from departing from the old form. This is not like a new assignment in trespass, as I at first thought. If the sur-rejoinder is not good, the rejoinder is bad. The
(a) See Maggs v. Ames, 1 Mo. & Payne, 294.
(b) 1 B. & P. 640. And see 8 T. R. 463.
(c) 8 T. R. 459.
plaintiff may take issue on either of these allegations, the defendant might have answered either sum by rejoining in the common way. The rejoinder ought not to vary from the common form, to avoid prolixity.
Littledale, J.-The replication is in the common form. I never saw a rejoinder in this form. If that be correct the sur-rejoinder is correct; though in reality it is only surplusage, and a reiteration of the language of the replication. It does not introduce new matter, as the allegation in effect was already contained in the replication. The defendant might go on thus in infinitum. Such a mode of pleading is not to be allowed if it can be avoided. The defendant had the opportunity, in his rejoinder, of specifically answering the matter alleged in the replication,
Judgment for the plaintiffs (a).
(a) And see the opposing dicta of Catesby and Yelverton, J. J., Trin.
9 Edw. 4, fo. 15, pl. 10; see also Pasch. 10 Edw. 4, fo. 2, pl. 3.
The Court will not stay
the proceedings on the ground of the pendency of another action, for the same cause,
SOWTER V. DUNSTON and ROBERTS.
IN Michaelmas Term, 1826, plaintiff commenced an action against Richards, Moore and Verbeke, to recover 1000l. for repairing and fitting up a house for the use of a company, intended to be called the Ægis Insurance Company, in which action the plaintiff gave notice of trial, and the cause was appointed to be tried at the sittings after last Trinity term, but the plaintiff withdrew the record. In or about Michaelmas term, 1826, the same plaintiff comson, except in a menced another action, for the same cause, against Duncase of oppres- ston. The latter action came on to be tried at the sittings
against the defendant jointly with
sion or vex
ation. If such after last Trinity term, when the plaintiff was nonsuited. a case is made In Michaelmas term, 1827, the present action was comout, they will interfere in a menced by the same plaintiff against Dunston and Roberts, summary manner, or allow the party to plead in abatement, notwithstanding the four days have expired. Semble.
upon the same demand as that sought to be recovered in the two former actions. The declaration in this action was delivered in Michaelmas term, 1827, and the usual order for time to plead was obtained, to prevent interlocutory judgment. Upon an affidavit by Roberts, disclosing the above facts, and stating that the first and third actions are now pending in this Court for one and the same demand, and that if Roberts is liable at all to the demand of the said plaintiff, he is liable jointly with Dunston, Richards, Moore, Verbeke, and divers other persons, Campbell obtained a rule in the course of last term, calling upon the plaintiff to shew cause why the proceedings in this action should not be stayed.
Platt now shewed cause, upon an affidavit stating that when the third action was commenced, Richards and Moore were in France. The defendants could not have pleaded the pendency of the former action in abatement; and in Bishop v. Powell (a) it was held, that after suing by common process, the plaintiff might arrest the defendant on bailable process, without first discontinuing the former action. (Here he was stopped by the Court.)
Campbell, in support of the rule. If the first action was discontinued on payment of costs, or if they would now discontinue, they might proceed in the third action. It is admitted that three actions have been brought for the same cause. The plaintiff first brings his action against three. The defendant cannot be in a worse situation than if the second action had never been brought. Roberts ought not to be liable to the costs of this action, and also to be liable
(a) 6 T. R. 616. So a party may be held to bail on a quominus, after he has appeared to a subpana ad respondendum. Lee v. Long, Wightw. 72. It would perhaps have been otherwise if the defend
ant had been taken under an at-
for contribution to the costs of the first action. insolvency of the first defendant is no answer to the application.
BAYLEY, J.-If in this case any oppression had been shewn to the Court, they might have come to a different conclusion to that which they are about to pronounce. The regular course is to plead in abatement. We are required to interfere after the cause is at issue. If actions had been needlessly multiplied, we might have done so; but I consider this action as substituted for the others. It would be wrong for both actions to go on. The plaintiff must undertake not to proceed in the former action until this is disposed of.
LITTLEDALE, J. (a)—The regular mode is to plead in abatement; and the defendant might have leave to plead in abatement after the four days. This has been allowed in action of trespass against a married woman (b). Then I think the Court ought not to interfere if the plaintiff will undertake not to proceed without the leave of the Court, unless he is forced.
Rule discharged, the plaintiff undertaking not to proceed in the action against Richards, Moore and Verbeke, without leave of the Court, or without being forced on by the defendants.
(a) Holroyd, J. was absent.
(b) In Milner v. Milner, 3 T. R. 632, Lord Kenyon says, "Where such a plea is not merely dilatory, but goes to the merits of the cause, the Court will allow him a longer
time than the four days to offer such a plea, lest the justice of the cause should be precluded, in the same manner that they will permit a tender after a special imparlance."