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“ upon the Defendant demurs; but it was adjudged for the Plain" tiff, for the Defendant cannot demurin such case, unless the other

obligor be averred to be living, and also that he sealed and de“ livered the bond. 3 Cro. 494. 544. Ascue and Hollingworth's 66 case, 28 H. 6.3. And if one be bound to two, one obligee " cannot fue, unless he avers that the other is dead.

In B.R. 1651. 1068. Levit v. Staineforth.No notice was taken at the bar of this latter paragraph; it is certainly too material to be passed over in a review of the cases on this subject. As if for the very purpose of preventing the first part of the case from being misunderstood, it adds, that in the case of one of several co-obligees suing alone, a different rule prevails from that which takes place where one of several co-obligors is sued. And the rule is that which goes the whole length of deciding upon the only doubt which could be made in this case; whether on a general demurrer it could be intended that a co-covenantee was dead, in order to sustain the declaration. “If one be bound to two, one obligee cannot fue, " unless he avers the other is dead.”

He muft recover upon

his own strength; he muft shew that which is necessary to make out his title; having by his own Thewing given the legal estate to himself and another, he must take upon himself the burthen of devefting that legal estate in the other, and vefting it in himself; he must aver that he is dead. The case of Cabell v. Vaughan is also reported in 1 Sid.421. by the name of Chappelv. Vaughan; and in the same book 238. Ofborn v. Crifborn, it is stated to have been laid down as a rule concerning the bringing debt on obligations, that if an obligation is made to three and two bring the action, they ought to thew that the third is dead. These cases admit of this answer, that though they statę a rule, they do not state in what manner advantage is to be taken of it, which it may be faid ought to be by plea in abatement. But the case of Eccleston and others executors of Castle v. Clipfham, 1 Saund. 153. and Slingsbie's case, 5 Co. 18.b. are decisive on this head. In the first the objection was allowed in arrest of judgment, and the party driven to discontinue; in the last the objection was on error in the Exchequer-Chamber, and for that error the judgment was reversed. Now these cases were both in covenant, and fo dire&tly in point. Sir Josiah Child's cafe, 1 Salk. 31. which comes nearest to an authority for the Plaintiff, supposing the rule as laid down in Salkeld to be correctly stated, and to have been well considered, (which the report of the fame cafe, by Levinz, who argued it for the Plaintiff, leads me to doubt,) is distinguishable from the present case, on the ground of distinction

taken

Scott

Godwin

taken by Lord Raymond in L'Eglife v. Champanti,, reported in 1797. Str. 320. that it was a case in tort and not contract. There it is faid that in assumpsit it might be taken advantage of at the trial, for it would not be the same contract, but in tort it ought to be pleaded in abatement. So of the late case of Addison v. Overend, 6T.R. 766.; where it was held on great confideration, that after

5 Eaj,411. a general verdict on the general issue it was no objection in arrest of judgment, that in one count of the declaration it was alleged that the Plaintiff was the fole owner of a ship, and in another that he was a part-owner, viz. of a quarter of the ship: for that also was a case of tort and not of contract. It feems to have been supposed at the bar that L'Eglise v. Champanti, M. 12 G. 2. was the first case in which such a distinction was taken; but in Docktrayv. Dickenfor, Skinn. 640. it is pointedly said, “ That the “ difference is where it is an action founded on a tort and * not guilty pleaded, and where it is founded on a contract;

for there it is non-assumplit, because it is another contract, but " the party may make a tort joint and several.” In truth, till the case of Rice v. Shute, E. T. 10G. 3. B. R. it seems to have been the usual course to nonsuit the Plaintiff, if on the trial in an action of affumpfit it appeared that the Defendant had a partner who was not sued, as it remains now the course to nonfuit the Plaintiff it he has a partner not made a Co-plaintiff. I am not called upon to inquire whether the rule in tort, to which it is said, 2 Lev. 113. Nelthorp v. Dorrington, that Sir William Jones, à sound and able lawyer, accorded hæfitanter, be well established or not. If a tort in respect of joint property can be joint or several, it is very well; a breach of a joint contract with two or more cannot be joint and several. This Plaintiff could not fue alone, therefore we are of opinion that there must be

Judgment for the Defendant,

Fuly sth.
SMITH V. O'KELLY.

3 Bof. & Pull.

618. TH His was an action of affumpfit; the cause of action arose at A Defendant is

Newmarket, but the venue was laid in Middle fer, and the not liable to be verdict being for 8s. 6d. only, and there being no certificate connty-court for according to the 23 G. 2. 6:33.;

a debt under Marshal Serjt.on stating the above facts, and that the Defendant within the

40s. not arising could prove an express promise to pay in Middlesex, obtained a county, thongh

he be residents rule to thew cause why a suggestion should not be entered on the therein.

roll,

1797

Smitu

O'KELLY.

roll, that the Desendant was resident in Middlesex, and liable to be summoned to the county-court.

Le Blanc Serjt. Dhewed cause. The county-court has no jurisdiction where the cause of action does not arise within the county, and a plaint levied in that court must state the cause of action to have arisen within its jurisdiction, otherwise it is error. In Wel jh v. Troyte, 2 H. Bl. 29. and Tubb v. Woodward, 6 T.R. 175. this Court and the Court of King's Bench refused to stay proceedings, though the causes of action were under 40s., upon the ground, that as the. Defendant did not refide in the county in which the causes of action accrued, he could not be sued in the county-court.

Marshall in support of the rule. A Defendant is liable to be summoned to the county-court, if refident within the county, though the cause of action does not arise there. The Statute of Gloucesier, 6 Ed. 1. c. 8. restrains actions under 4os. to the countycourt, but does not confine its jurisdiction to the limits of the county; and the object of the Statute of Westminster 1. 3 Ed. 1. C. 35. is to reftrain particular jurisdictions within their proper limits, and yet it never mentions the county-court. In Com. Dig. tit. County, C. 5. Jurisdiction of the County-Court, there is no authority to sew that it is confined to causes arising within the county. If the Defendant's liability to be summoned to the county-court be traversed, he will give in evidence an express promise to pay in Middlesex. Besides, this not being an application to stay proceedings becaufe the action is under 4os. but to enter a suggestion pursuant to a particular act of parliament, the cases cited on the other side do not apply.

Per Curiam. This is a struggle in the teeth of a folemn determination in both courts, and of the principle which governs every inferior court in this country. The rule must therefore be discharged, but as the action is a very shabby one, let it be without costs

Rule discharged without costs.

Fuly sth

JONES V. KITCHIN.

The plea de REP

EPLEVIN for goods and chattels. injuriâ fuâ prom Cognizance, ftating that the place in which, &c. was a pria absque tali caufá to a cogni. house held by the Defendant, under a demise from one John arrear, is bad up Ofborne, at a yearly rent of 42l. payable on the quarterly feaft on special demurrer.

days;

A

1797

JOVES

KITCHIN.

days; that 31l. of the said rent was due in arrear, and unpaid to the said John Osborne, and that the Defendant as bailiff of the said John Osborne acknowledges, fc.

Plca in bar, de injuriá fuá propriâ abfque tali caufa. Demurrer thereto, assigning for causes, that the said Plaintiff hath in and by his faid plea tendered and offered to put several and distinct matters in issue, that is to say, the holding and enjoying of the faid dwelling-house with the appurtenances in the haid declaration and cognizance above-mentioned, by the faid Plaintiff; and hath also in and by his faid plea denied that the faid rent in the faid cognizance mentioned was due, in arrear, and unpaid as in that cognizance is above alleged and contained; and for that the said Plaintiff hath also in and by his faid plea tendered and offered to put in issue, as well the times and manner of the payment of the said rent as also the amount and quantity of the fame; and for that the said Plaintiff thould and ought in and by this faid plea to have tendered and offered to put in issue one single fact only, to be tried by a Jury of the country, and to have relied on the fame; and for that in the manner the same plea is above pleaded, no certain or fingle iffue can be joined in the same; and for that the said plea is double, multifarious, and not issuable, and is also in various other respects defective, argumentative, insufficient, and informal.

Joinder in demurrer.

The Court inclining against the plea in bar called upon Shepherd Serjt. to begin in support of it.

Shepherd. Where two facts are necessary to make up one defence, neither of which is matter of record, the plea de injuria fuá propriá abfque tali caufâ is good; and so is the rule in Crogate's. cafe, 8 Co.66.b. ift resolution. In Chauncey v. Ivinde, Ld. Raym. 700. this distinction from 2 Leon. 102. was taken in argument, that where the matter of record is but inducement to the action, a special answer is not requiste; and Holt Ch.J. thought the replication de injuriá to a justification of trespass, under a warrant from the commissioners, by virtue of an act of Parliament, good. In Robinson v. Rayley, Burr. 320. Lord Mansfield says, “ It is

must take issue on a single point, but it is not necef“ fi ry that the single point should consist only of a single fact." So here tenancy in the Plaintiff and rent in arrear are both necessary to intitle the Defendant to distrain. Though at common law the Defendant must have set forth his title, which would have

precluded

true you

1797- precluded the plea de injuriâ, yet by the u G. 2. c. 19. f. 22.

matter of title is excluded from the avowry, and nothing is to be Jones

set out but matters of fact, which in this case are tenancy and rent Kirchin. in arrear. If therefore this be not a good plea, the Plaintiff'must

cither admit the Defendant's title to the land or the rent in arrear. The intention of the statute was only to shorten the pleadings, and the Defendant need not have stated by whom the demise was made, but the Defendant's having gone beyond the ftatute, makes no difference in the law. In a Precedent Book of Mr. J. Lawrence, there is such a plea as the present, and a note of his in the margin, ftating that he demurred to it; but it was overruled. The Plaintiff might have traversed every fact in the avowry by leave of the Court, which leave is now become almost matter of right : the Court therefore will not oblige him to do that in a circuitous manner, which may be done more Mortly by the present plea.

Marshall Serjt. contrà. If this mode of pleading be good, the 11 G. 2. instead of conferring a favour on landlords, would produce an inconvenience: it would be better to avow as at common law, and have an explicit answer to one fact. This plea would put in issue, first, the holding, which if there be no privity of contract may involve the distrainor's title; fecondly, the terms of the holding, viz. the amount and days of payment of rent; thirdly, that rent was in arrear; fourthly, that the diftress was taken for that rent; and in the case of a cognizance, like the present, command. The 4th resolution in Crogate's cafe is decidedly against the present plea in bar; I admit that if the several matters put in issue make together but one defence, they may all be put in issue together, and then de injuriâ fui propria 'alfque tali caufii is proper. But when the Plaintiff makes title by his declaration to any thing, and the Defendant pleads foncthing in destruction thereof or of the Plaintiff''s cause of action, then the Plaintiff muft reply specially, and not say absque tali caují, for absque tali caufá goes to the whole plea. Yelv. 157. Taylor v. Markham, Cro. Jac. 224. S. C. 1 Brounlow 215. S. C. Horn v. Lewin, Fort. 233. Salk. 583. Witnel v. Cook, Cro. Eliz. 812. Banks v. Parker, Hob. 76. White v. Stubbs, 3 Lev. 307. 2 Saund. 294. S. C. In Cockerill v. Armstrong, the declaration was trespass for taking a gelding: Defendant justified as servant of J. S. who was feised in fee: replication, de injuriâ fitú propriá absque tali caufâ, and judgment for the Defendant. The case is shortly re6

ported

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