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48

Common Law.

RIGHT OF WAY.

Queries.- Editor's Letter Box.

say 30, and the good debts do not amount to
more than 100/-is C. bound to pay the second
installment?
Q. Q.

Law of Property and Conveyancing.

DOWER.

unto F. C. his heirs, executors, administrators
and assigns, to and for his and their own use
and benefit. But in case F. C. died, and left
no child living at his death, or having a child
who should die in his life-time without issue
living, then testator devised the real estate unto
J. C. his heirs and assigns for ever, charged
with further legacy if J. C. should be possessed.
F. C. became seised in possession after testa-
tor's death, and died, (never having had any
issue) leaving a widow. Is she entitled to
dower?
R. B.

A. and his ancestors held certain property by lease for the greater part of a century, during which period, or with certainty for upwards of thirty years, the tenants exercised an undisputed right of access to the back premises by means of a roadway, leading from the street to a private field, into which roadway a In 1806 a testator, seised in fee, (after door opened from the premises. At the expi- charging part of the real estate with an annuity ration of the period mentioned, ten years to his wife for life,) devised real and gave persince, A. accepted a new lease of the premises,sonal estate (both subject to debts and legacies) and rebuilt the house: but not having occasion at that time for access to the back premises from the roadway, omitted the doorway in the new wall which separates his property from the roadway. Two or three years since A. erected stables &c. adjoining his house, and finds occasion for the old access. The owner of the field, however, has in the meantime claimed an exclusive right to the roadway, by putting up gates and a lock. I am desirous of ascertaining whether I correctly understand Littledale J., to hold that "no release of a right of way, can be presumed from non-user for less than twenty years," in Moore v. Rawson, 3 B. & C. 339. If this be correct, A. will be justified in opening a doorway in its ancient position into the roadway, and using it as formerly; and also in removing any obstruction which may preclude his free ingress and egress. The opinion of some of your correspondents is requested as to the right of A., with references to any authorities that may bear on the question.

PARTNERSHIP.

ESINA.

A. enters into partnership with B, for which C. is to pay 6007., 3007. down, and remainder by three 1007. instalments, the first and second at the end of the first and second six months, and the third at the end of the second year. For this A. is to receive out of the clear profits of the business half the profits, be the amount what it may, but at least 2007. per annum: C. joins in the deed of copartnership, and Covenants with B. to pay the instalments with a proviso that if the moiety or share of A. to be actually had and received out of the profits of the business, clear of all deductions whatsoever, shall not amount to 2007. per annum, C. to be entitled to deduct deficiency, and pay it over to A. The sum of 501. each is placed in the hands of bankers as capital; C. enters into a bond to perform covenants in deed. At the end of three months B. finds it necessary to carry on the business to borrow 1007. C. lends it, and a joint promissory note is given to C. for that sum, to be repaid at the end of two years, when the last instalment became due: at the end of the first year, A. has received 2001. but in consequence of bad debts and defending actions for B.; there is a small sum, say 207, in hand; the business is a trifle in debt,

THE EDITOR'S LETTER BOX.

According to the wish of some of our subscribers in the country, we are making arrangements for stamping a country edition of the Legal Observer, to be sent by the post on Saturday evenings. This will be a mere change in the mode of transmission of part of the impression, for the accomodation of such as desire it. The Work itself will undergo no change, but be published in London in the same form, and sent by the booksellers as usual, to those who do not wish to receive it by the post. The alteration will probably be commenced next month, and subscribers will please to give directions accordingly.

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OF THE

DEMURRABLE POINTS UNDER THE NEW RULES OF PLEADING.

Ir is our purpose in the present article to avoid the abstruse questions which some of our readers might anticipate from the above title, and to confine ourselves to what is of daily use, and entirely practical; though we shall be obliged to blend with our statement of points, a brief explanation of the rules which give rise to them, and the statement of which is necessary to make the points intelligible. And by points of pleading, we refer exclusively to those which constitute what may be called the Grammar of Pleading, and relate to the formal propriety of the pleadings, as distinct from the theoretical and logical branches of pleading; thus, the statement of time and place in the material allegations, is essential to the formal propriety of the pleadings; but the sufficiency of the matter alleged, and its relevancy, are other questions.

By a recent Rule of Court, the venue in the margin is to be considered as the venue of each material fact or allegation; and the same rule prohibits the statement of any venue in the body of the declaration or subsequent pleadings: and this is the first point to which we call our readers' attention, for the purpose of observing, that though the statement of place in any other part than the margin is irregular since the new rule just mentioned, and, as an irregularity, would be ordered by a Judge at chambers to be

a Rule 7 H. T., 4 W. 4.

VOL. XIV. NO. 399.

struck out, and the costs of the application would be given-yet it is not demurrable. But with respect to time, the rule requiring some time to be alleged, still remains in force, and demurrers for the want of this allegation, have recently been not infrequent: thus, where in a count upon an account stated, the word " then," was omitted," upon an account then stated between them," it was held bad on special demurrer, though the declaration contained the usual allegation at its commencement, that on such a day the defendant was indebted. In another case,d a defendant, evidently presuming on this decision, demurred to a count for goods sold and delivered, which only stated that the defendant on such a day was indebted for goods sold and delivered, without alleging any time at which they were sold and delivered; but the Court thought the count good, because, if the defendant was indebted on such a day, as was alleged, the goods must have been before that time sold and delivered; and as the old forms run thus,"for goods before that time sold and delivered," the count demurred to was deemed equivalent. This decision checked the impulse which the former one had given to the practice of special demurring; a practice which, if employed for any other purpose than to secure a reasonable precision, fully merits its denomination, as a sort of byplay, in which the suitor is forgotten, and

b Furmer v. Champneys, 1 C. M. & R. 369; Townsend v. Gurney, Id. 590.

Ferguson v. Mitchell, 2 C. M. & R. 687 ; Spyer v. Thelwell, Id. 692.

Lane v. Thelwell, 1 M. & W. 140.

D

50

Of the Demurrable Points under the New Pleading Rules.

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In the forms of declarations given by the Rule of Court, in actions on bills and promissory notes, the, count after stating the period for which the bill or note is drawn, contains the following allegation, 'which period has now elapsed;" and it has been demurred to, as not shewing that the bill or note was due before the plaintiff commenced his action. In the first case in which the objection was taken, the Court countenanced it so far as to suggest that the plaintiff had better amend his declaration, the Court inclining to think that the form in question, though good when it issued, the bill being then the commencement of the action, became bad when the Uniformity of Process Act passed; but the question was re-considered in a subsequent case, and the Court decided the allegation," which period has now elapsed" sufficient, unless it appears by the declaration that the action was commenced before there was a cause of action.i This decision again gave a useful check to the impulse which the former one had given to the practice of demurring.

that he did not accept the bill, and, secondly, that he did not account; and both these pleas were pleaded generally and without restriction, and it was argued that their language sufficiently shewed that they were pleaded, the one to one count, and the other to the other; the Court thought that each must be considered as pleaded to the whole declaration, and therefore that they were demurrable, because the first could have no sensible application to the second count, nor the second to the first count;-though we should add, that the immediate question before the Court was, whether the plaintiff was entitled to sign judgment, which he had done and in a somewhat later case, the Court of Exchequer, decided that a plea, the matter of which answers only part of the declaration, must be expressly restricted to that part, and if pleaded without restriction, it must be taken to be pleaded generally to the whole declaration; and therefore, in the case before the Court the plea was bad; for to a declaration consisting of two counts, one on a bill, the other on an account stated, it was only pleaded that the defendant did not accept the bill in the declaration mentioned.

Amongst the cases most severely contested under the new rules, are those which have terminated in the establishment of a general replication of de injuria, in actions of debt and assumpsit, where the matter of the plea is analogous to the pleas to which de injuria could be well replied in other actions; the admissibility or non-admissi bility of this replication, turned on the well

A plea pleaded generally, or not expressly restricted to a part of the declaration, was before the new rules of pleading taken to be pleaded to the whole declaration, and was demurrable, if it did not afford an answer to any part of the declaration. From a mere misconception of the meaning of one of the new rules, which dispenses with certain formal commencements and conclusions of the different pleadings, it was sup-known rule of pleading, that issues must be posed that the Court would look at the matter of the plea, and apply it to the count to which it might be exclusively applicable; as for example, if there was a count on a bill and a count for goods sold and delivered, and a plea of non accepit was pleaded generally, it was supposed that the Court would appropriate the plea to the count to which it was truly applicable, and allow the plaintiff to sign judgment for want of a plea to the rest of the declaration; but such was not the decision when the question came for adjudication; for, where, to a declaration on a bill of exchange and on an account stated, the defendant pleaded, first,

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single, as contradistinguished from being multifarious; and by multifariousness was meant, taking issue on several facts, where one, apart from the rest, would determine the right of the action. The old plea of the general issue had precluded this ques, tion: but when, in an action on a bill, the defendant came to disclose the history of the bill for the purpose of excusing himself from the payment of it, the nature and quality of the plea had to be considered, and the Courts regarding the plea as an excuse, at length decided that the whole of the plea might be put in issue, and allowed the plaintiff to do so, by alleging that the defendant of his own wrong, and without the cause by him alleged, broke his promise: for though several allegations are thus put in issue, yet they amount collectively to

Vere v Gouldborough, 1 Scott, 265.

k Putney v. Swann, 2 M. & W. 73.

Demurrable Points under the New Rules.-New Statute of Limitations.

but one ground of defence, namely, that | debt that the defendants never did owe :

the plaintiff is not the bond fide holder of the bill, or has not a good title.'

51

m

but the proper replication to a plea of set-off is still nil debet; " a plea of payment confesses and avoids the action; and even in debt is not a denial of any thing alleged in the declaration; it therefore should conclude with a verification:° and if it is a plea of payment of money into court, it is bad, unless it concludes with a prayer of

action :P and if, besides the common counts under which the plaintiff is only bound to prove a cause of action to some amount, and not to the amount alleged, there is a count on a bill of exchange, and he pays money into Court, it seems the plea ought to specify how much is paid on such first count, but the payment as to the other counts may be general; the reason of which is too subtle for us to explain without too long a digression.

The several money demands commonly inserted in the declaration, are since their abridgment, as they were before, several counts; and therefore a plea treating them collectively as one count, is demurrable.

We must not omit to notice the points decided with respect to the mode of pleading to actions on bills and promissory notes, when the defendant intends to impeach the plaintiff's title, either on the ground of fraud or want of consideration. To plead that a promissory note was made, or a bill of ex-judgment to the further maintenance of the change accepted, without consideration, or any other form of plea which merely denies the existence of any consideration, is bad, because it is neither the denial of any thing alleged in the declaration, nor is it the statement of any fact which avoids the ordinary legal presumption that the note was made, or bill accepted for a consideration: such a plea therefore is demurrable: for if the drawer sues the acceptor, and it was an accommodation acceptance, that fact should he alleged, or it should be alleged if the fact were so, that the defendant accepted the bill and delivered it for a special purpose; e. g. to get it discounted for him the defendant, and that no value was given to him; or if the drawer of a bill, accepted under such circumstances, has parted with it, and the action is by a third person, then it must go on to allege some fact directly impeaching the plaintiff's title, e. g. that the plaintiff took it with notice of the fact alleged as the defect of the drawer's title; though it is to be observed that when once the defendant has alleged fraud, as for example, fraud on the part of the drawer, he has destroyed the presumption of law, which would otherwise prevail in favour of By the 2d section of the 3 & 4 W. 4, c. subsequent parties, and which would render 27, it is enacted that no person shall make it necessary for him still to go on impeachan entry or distress, or bring an action to ing in a special manner the title of the sub-recover any land or rent but within 20 years sequent holders; but, the presumption destroyed, the defendant may then, it seems, deny in a general way that the plaintiff is a holder for value, and he is not obliged to go on with the history.of the bill through the hands of Levy David, and David Levy, and the rest of the tribe of Jacob.

With this we shall conclude for the present, but shall probably renew the subject from time to time, according to the progress of the decisions.

ON THE CONSTRUCTION OF THE NEW STATUTE OF LIMITATIONS, 3 & 4 W. 4, c. 27.

next after the time at which the right to make such entry or to bring such action shall have first accrued to some person through whom he claims; or if such right shall not have accrued to any person through whom

m Smedley v. Joyce, 4 Dowl. Prac. Cas. 421. There are a few minor points of which a n Idem. 422, n. (a). In this case the debare mention will be sufficient; such as, fendant, to a plea of set-off, replied that he was that in debt, "never indebted," is an im- never indebted: the secondary refused to receive evidence of payment of part of the sum perative form, and the defendent is not claimed by the set-off, and Putteson, J., held entitled to substitute an equivalent ex-rightly. It would seem, therefore, that part pression: thus, it is demurrable to plead in

1 Isaac v. Farrer, 1 M. & W. 65. Lord Abinger's judgment is too long for insertion; but we recommend its perusal, as a luminous statement of the law, and as distinguished by the gracefulness so characteristic of that learned Judge's style and elocution.

payment cannot be proved under a plea of never indebted; for the set-off is in the nature of a declaration, and the replication to the plea of set-off is a plea to the set-off.

o Mack v. Rast, 4 Dowl. Prac. Cas. 206. P Sharman v. Stevenson, 2 C. M. & R. 75. a Jourdain v. Johnson, 2 C. M. & R. 565. 1 Idem.

52

322

On the Construction of the New Statute of Limitations.

he claims, then within 20 years next after | made; the two periods being prescribed in

respect of claims and objects in their own nature perfectly distinct. The second section contemplates and provides for the case where the right or title to the annuity itself is disputed; and directs, that no person shall make a distress for any rent, but within 20 years next after the time at which the

the time at which the right to make such eutry or distress, or to bring such action, shall have first accrued to the person making or bringing the same. And by the 7th sec. it is enacted, that when any person shall be in the possession or receipt of the profits of any land, or in receipt of any rent as tenant at will, the right of the person entitled sub-right to make such distress shall have first ject thereto, or of the person through whom he claims to make an entry, or bring an action to recover such land, shall be deemed to have first accrued either at the determination of such tenancy, or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy shall be deemed to have determined.

accrued to the person making the same.' The 42d section contemplates and provides for the case where the title to the annuity is not disputed, but the distress is made for arrears due; and for that purpose directs, that no arrears of rent shall be recovered by any distress, but within six years next after the same respectively shall have beIn a late case the circumstances were as come due.' The second issue arises upon a follows:-A. was seised in fee of lands, and plea in bar, framed upon the second section; permitted B. to occupy them twenty years the last issue arises upon a plea in bar, inpreviously to his death, which happened in tended to be framed, though not accurate1531. A. died in Sept. 1833, and the de-ly or aptly framed, on the 42d section. tendant, who was the son and heir at law of It is manifest, that the facts found in the B., occupied till 1836. On an ejectment brought by the devisees of A., it was found by the jury that the possession of B. was not adverse to A., and it was held that the right of action in the devisees was not barred by the 2d & 7th sections of the 3 & 4 W. 4, c. 27, but was saved by the 15th section of that statute, being brought within five years from the passing of the act

special verdict will bring the case precisely within the provision of the second section of the Act, unless that section is to be governed and controlled, not simply explained and construed, by the third; that is, unless the 3d section does in terms exclude from the operation of the 2d the claim of any person whose right to a rent is derived under a will, by reason of the words 'other than by will' which are found in the 3d

In another very late case the facts were these: John Salter, the father of the defend-section. And when this case was originally ant, by his will, duly made and published, devised the property therein mentioned to trustees, to the intent that they should, out of the rents and profits, pay to John Salter the defendant, during the term of his natural life, an annuity or clear yearly rent of 301. by four quarterly payments, to commence on the first quarterly day of payment after his decease; with a power of distress if the annuity should be in arrear for 20 days next after any quarterly day of payment. The testator died in 1804, without having revoked or altered his will; and on the 17th of March, 1835, the defendant distrained for 8701. for twenty-nine years arrears of the annuity, ending at Christmas, 1835; and the question was, whether this action was barred by the late statute. The Court of Common Pleas held that it was. Lord C. J. Tindal, in delivering judgment, said,

Upon reference to the statute 3 & 4 W. 4, c. 27, it appears to have provided two distinct periods of limitation, within which all distresses for arrears of annuities must be

a Doe d. Thompson, 1 Nev. & Per. 215.

before the Court upon a motion for a new trial, after the rule had been made absolute upon a ground perfectly distinct from that which is now before us, an opinion was expressed by the Judges then in Court, that the present case was excluded from the operation of the 2d section, by reason of its not being comprehended within the 3d; which 3d section appeared to us, upon a more hasty view, to contain an enumeration of instances to which only the 2d section could be held to be applicable. For myself, however, I am ready to admit, and I am authorized at the same time to say the same for my three brethren who were then in Court, that the further argument which we have heard on this point, when brought directly before us for judgment upon the record, and the further opportunity for consideration which has been afforded us, has induced us to alter the opinion we then formed, and that we think (in which my brother Vaughan entirely concurs with us), that this case is governed by the 2d section of the statute, which under the facts found in the special verdict, affords a bar to all

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