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1799.

BUSH

V. STEINMAN,

of the civil law, it is perfectly clear that our law carries such lia-
bility much further. Thus a factor is not a fervant: but being
employed and trusted by the merchant, the latter according to
the case in Salkeld is refponfible for his acts. There are besides
this other cases. As where a person hires a coach upon a job,
and a job-coachman is sent with it, the person who hires the
coach is liable for any mischief done by the coachman while in
his employ, though he is not his servant. We all remember an
action for defamation brought against Tatterfall who was the
proprietor of a newspaper, with fixteen others: the libel was in-
serted by the persons whom the proprietors had employed by
.contract to collect news, and compose the paper, yet the Defend-
ant was held liable. Now this is a strong cafe to shew that it
makes no difference whether the persons employed by the De-
fendant, were employed on a quantum meruit, or were to be
paid a ftipulated lum. In Rofewell v. Prior, Salk. 460. an
action for the continuance of a nuisance was held to lie against
the Defendant though he had underlet the building which was
the subject of it, and though the Plaintiff had recovered against
him in a former action for the erection of the nuisance; for the
Court said “ he affirmed the continuance by his demise, and
received rent as a consideration for it.” That cafe is analogous
to the present; the ground of the decision having been, that the
Defendant was benefited by the nuisance complained of. It is
not possible to conceive a case in which more mischief might arise
than in the present, if the various subcontracts should be held suf-
ficient to defeat the Plaintiff of his action. Probably he would
not be able to trace them all, fince none of the parties could
give him any information, and consequently he might be turned
round
every

time he came to trial.
Rooke J. I am of the same opinion. He who has work
going on for his benefit, and on his own premises, must be civilly
answerable for the acts of those whom he employs. According
to the principle of the case in 2 Lev. it shall be intended by the
Court, that he has a control over all those persons who work on
his premises, and he shall not be allowed to discharge himself
from that intendment of law by any act or contract of his own.
He ought to reserve such control, and if he deprive himself of it,
the law will not permit him to take advantage of that circum-
Atance in order to screen himself from an action. The case which
has been supposed of the lime having been deposited at a distance
from the Defendant's house, and the accident having happened

there

[ 410 ]

1799.

BUSH

MAN.

there does not apply: for here a person acting under the general employment of the Defendant brought a quantity of lime to the premises, and deposited it without any objection being made by any person there, whereas it was the duty of the Defendant to have provided a person to superintend those employed in his work. The person from whom the whole authority is originally derived, is the person who ought to be answerable, and great inconvenience would follow if it were otherwise. There is such a variety of subcontracts in this case, as rarely occurs, but this serves only to illustrate more strongly the mischief which would ensue should we depart from the doctrine in Stone v. Cartwright. In that case, and in Littledale v. Lord Lonsdale, the fafest rule was adopted. The Plaintiff may bring his action either against the person from whom the authority flows, and for whose benefit the work is carried on, or against the person by whom the injury was actually committed. If the employer fuffer by the acts of those with whom he has contracted he must seek his remedy against them.

Rule discharged

April 27th.

Gwillim v. THOMAS HOLBROOK.

the suit in the

and a return

The condition of
a replevin bond" DEBT

EBT on a replevin bond by the assignee of the sheriff of Midis not satisfied by

dlefer. The declaration stated the Plaintiff's having difa prosecution of trained as bailiff of the mayor and commonalty and citizens of county court,

the city of London governors of the house of the poor commonly plaint if called Saint Bartholomew's Hospital near West-Smithfield London removed by re. fa. lo. into a fu- of the foundation of King Henry the Eighth, and proceeding in perior court must the usual way, set out the bond and condition which was that R. there with effect, Holbrook should“ appear at the next county court for the county

“ of Middlesex to be holden at &c. and then and there prosecute made if adjudged there.

* his action with effect against the Plaintiff for taking and un" justly detaining his cattle &c. and make return thereof if “ return thereof should be adjudged by law"; it then averred, that a plaint was duly levied at the next county court by R. Holbrook, and removed into this court by recordari" facias lo quelam; that R. Holbrook made default and judgment was given for a return; that the bond was thereby forfeited and was in consequence duly assigned &c.

Plea. A&tionem non, because he says, that the said R. Holbrook did appear at the county court for the said county of Mid

dlefes

II

GWILLIN

dlesex holden next after the making of the said writing obligatory 1799. as in the said declaration is mentioned, and did then and there profecute his action with effect against the Plaintiff for taking and unjustly detaining his faid cattle goods and chattels, and con- HOLBROOK. tinued to prosecute the fame with effect until the record of the faid plaint in the faid declaration mentioned was duly had and removed into the said Court of our faid lord the King of the bench aforesaid by virtue of the said writ of our faid lord the King of recordari facias loquelam in the faid declaration also mentioned to wit at &c. And this &c. Wherefore &c.

General demurrer, and joinder.

Le Blanc Serjt. in support of the demurrer, contended that by the condition of the bond R. Holbrook was not merely bound to prosecute his fuit with effect in the county court, but to follow it into the court above, and, to make a return, wherever such return should be legally adjudged: he cited Anon. Fortes. 209. Nichols v. Newman, Fortef.361. and Vaughanv.Norris, Caf.temp.Hardw.137.

Shepherd Serjt. who was to have argued on the other fide, admitted that the present case could not be diftinguished from those cited; And the Cout-were of the same opinion.

Judgment for the Plaintiff. (a)

(4) Vid. etiam Chapman et al' v. Butuber, Carth. 248. Lane v. Foulk, Comb. 228.

TIPPET and Others r. May and Two Others.

April 30th DECLARATION in affimpfit against three. Two of the De- Affumpfit

fendants pleaded a debt of record by way of set-off, without againft three : taking any notice of the third. The Plaintiffs replied nul tiel debt of record by record, and gave a day to produce the record to the two De- way

of fet.off:

the Plaintiff refendants who pleaded, but entered no suggestion on the roll plied nul siel rerespecting the third.

cord, and gave a

day to the two To this there was a general demurrer; and joinder.

Defendants, but Marshall Serjt. in fupport of the demurrer. The ground of entered no lug

gestion respecting this demurrer is, that as two of the three Defendants have pleaded, the third; held on and the Plaintiffs have given them a day to produce the record, domation without suggesting any thing with respect to the third, the action discontinued, is discontinued as to him, and that a discontinuance as to one be given againt

the Plaintiff, even though the Defendants' plea were bad.

Defendant

1799.

TIPPET

May.

Defendant is a discontinuance as to all. It is a settled rule of law that a fuit must be continued from its commencement to its conclufion without any chafm; and that any chasm is a discontinuance. In Gilb. Hist. C. P.150.158. it is said that if a Defendant pleads to part and says nothing to the other part, and the Plaintiff replies to such plea without taking judgment for the part not answered to, it is a discontinuance, because he does not follow his entiredemand in the court. So if he demur generally, for he ought to have prayed judgment upon nil dicit for that part. 1 Rol. Abr. fo.487. 488. And this rule applies not only to the subject-matter of the cause, but also to the parties. i Rol. Abr. fo. 488. Com. Dig. Pleader(W.3). Thus in Bro. Alr. Discontinuancede Process, pl.22. Replevin against three, avowry by one, and so to issue, and the two others said they came in aid of the avowant, yet if the two have not a day given and continuance on the roll from day to day, all is discontinued: and pl. 8. Replevin against three of a taking in S. one appeared and avowed for himself in B. and traversed thetaking in S. and made avowry to have a return which passed for the Plaintiff, and he prayed judgment, and it was determined that as no proceeding was against the other two, all was discontinued, for the proceeding fhall be made to continue against those who make default, otherwise it is a discontinuance. Green v. Charnock and another, Cro. Eliz. 762. is to the fame effect. The rule holds alfo where a Plaintiff makes default. Pasion v. Lufher, Yeld. 155. If it be contended on the other side that a plea of set-off by two Defendants in an action against three is bad, still the Plaintiffs will not be entitled to judgment on this record for by the difcontinuance the cause is out of court.

Shepherd Serjt. contrà. Though the question immediately in issue on this demurrer be, whether the replication which the Plaintiffs have put in be sufficient in law to answer the Defendant's plea, still if we can fhew that the plea itself is bad, they cannot have judgment. Indeed if we were to amend our replication the Defendants would be under the fame difficulty. No authority has been adduced to thew that discontinuance is the subject of demurrer. (a)

EYRE

(a) See Weeks v. Peach, 1 Salk. 179. “ tiff must not demur but take his judgment and Market v. Jobnfon, 1 Salk. 180. in the “ for that as by nil dicit; for if he demurs former of which cases Lord Ch.J. Holt " or pleads over the whole action is disconsaid “if a plea begin only as an answer to “ tinued.” However, the doctrine in Cross “ part, and is in truth but an answer to v. Bilson, I Salk. 3. ref. 2. seems scarcely a part, it is a discontinuance and the Plain- reconcileable with those cases: there the

Defendant

1799.

TIPPET

MAY,

EYRE Ch.J. There is no rule in pleading more certain than that if a party can trace back the vices in the pleadings to the firft fault he has a right to take advantage of it on demurrer. But he cannot ask the judgment of the Court unless he appear on the record to be capable of demanding judgment. (a) Now in this case the Plaintiffs, having replied to a plea by two of the Defendants without taking notice of the third against whom they declared, have made a discontinuance; the cause therefore being discontinued, judgment must be given against the Plaintiffs, for they are not in a situation to take advantage of the badness of the Defendants' plea.

Rooke J. The Plaintiffs not being in court, cannot call upon the Court to give them judgment. Per Curiam,

Leave given to amend on payment of cofts. ()

Defendant having discontinued by concluding suggestion after demurrer joined. Thus in his demurrer to the Plaintiff's replication Woodward v. Robinson, 1 Str. 302. where with a prayer quod narratio prædi&ta case the Defendant having pleaded a bad plea to tur, ic was held that the Plaintiff had his the ist count, and in his ad plea pleaded to election to take judgment, or to join in de. part only of the other counts, the Plaintiff murrer, and that having done the latter, in his replication merely tendered issue, and the Court might give him judgment upon the Defendant dcmurred; the Court held the whole record.

that though there was a discontinuance, yet (2) So“ When Plaintiff makes replica- the pleading being of the same term, the « tion, sur-rejoinder, &c. and thereby it ap- Plaintiff might still take judgment by nibildi“peareth that upon the whole matter, and cit for so much as was uncovered by the plea. « record, the Plaintiff hath no cause of Accordingly the case was adjourned, and the " action, he thall never have judgment, al- Plaintiff having set the matter right, had 5 though that the bar or rejoinder be in- judgment on the demurrer. To the same “ sufficient in matter; for the Court ought effect is Vincent v. Befton, i Ld. Raym. 716. "to judge npon the whole record.” Doctor But it is to be observed, that in those cases Bonbam's case, 8 Co. 120. b. See also in the Plaintiffs were not allowed to have confirmation of this, Ridgway's case, 3 Co. judgment until the discontinuances were 52. b. and Turner's case, 8 Co. 133. b. done away, although the Defendants had

(6) Had the demurrer been of the same committed the firft fault upon the record. term with the record, it seems the Plaintiff Vid. etiam Middleton v. Cbeseman, Yelv. 65. would have been entitled de jure to enter a

THIS

GRIFFITHS v. EYLES.

April 30th,

11 Eaft, 409. THIS was an action of debt for an escape out of execution, To debt for an

escape Defend against the Defendant as warden of the Fleet. Pleas. ift, ant pleaded a

negligent escape and voluntary return fince which the prisoner had been safely kept. Plaintiff in his replication admitted the negligent escape and voluntary return, but alleged that the prisoner had not been tafely kept finde that time, having again escaped, which was a different escape from that mentioned in the plea, and the same for which the action was brought. Defendant in his rejoinder traversed the allegation that the prifoner had not been safely kept, and then pleaded to the latter part of the replication as to a new assignment, a negligent escape, voluntary return, and safe keeping fince, in the same manner as in the plea, This latter part of the rejoinder the Court refused to strike out on motion, but held it bad on special demurrer. A plea that, if the prisoner escaped several times (without specifying them), le returned as often, is bad,

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