1797. SCOTT ย. GODWIN. 66 upon the Defendant demurs; but it was adjudged for the Plain"tiff, for the Defendant cannot demur in fuch cafe, unlefs the other obligor be averred to be living, and alfo that he fealed and de"livered the bond. 3 Cro. 494. 544. Afcue and Hollingworth's “cafe, 28 H. 6. 3. And if one be bound to two, one obligee "cannot fuc, 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 paffed over in a review of the cafes on this fubject. As if for the very purpose of preventing the first part of the cafe from being mifunderstood, it adds, that in the cafe of one of feveral co-obligees fuing alone, a different rule prevails from that which takes place where one of feveral co-obligors is fued. And the rule is that which goes the whole length of deciding upon the only doubt which could be made in this cafe; 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, "unlefs he avers the other is dead." He muft recover upon his own ftrength; he muft fhew that which is neceffary to make out his title; having by his own fhewing given the legal eftate to himfelf and another, he must take upon himself the burthen of devefting that legal estate in the other, and vefting it in himself; he muft aver that he is dead. The cafe of Cabell v. Vaughan is alfo reported in 1 Sid. 421. by the name of Chappel v. Vaughan, and in the fame book 238. Ofborn v. Cufborn, it is ftated 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 fhew that the third is dead. Thefe cafes admit of this anfwer, that though they state a rule, they do not flate in what mannèr advantage is to be taken of it, which it may be faid ought to be by plea in abatement. But the cafe of Eccleflon and others executors of Caftle v. Clipfham, 1 Saund. 153. and Slingsbie's cafe, 5 Co. 18. b. are decifive on this head. In the firft the objection was allowed in arreft of judgment, and the party driven to difcontinue; in the laft the objection was on error in the Exchequer-Chamber, and for that error the judgment was reverfed. Now thefe cafes were both in covenant, and fo directly in point. Sir Jofiah Child's cafe, 1 Salk. 31. which comes neareft to an authority for the Plaintiff, fuppofing the rule as laid down in Salkeld to be correctly stated, and to have been well confidered, (which the report of the fame cafe, by Levinz, who argued it for the Plaintiff, leads me to doubt,) is distinguishable from the prefent cafe, on the ground of diftinction taken taken by Lord Raymond in L'Eglife v. Champanti,, reported in Str. 820. that it was a cafe in tort and not contract. There it is faid that in affumpfit it might be taken advantage of at the trial, for it would not be the fame contract, but in tort it ought to be pleaded in abatement. So of the late cafe of Addifon v. Overend, 6T.R. 766.; where it was held on great confideration, that after a general verdict on the general iffue 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 fhip, and in another that he was a part-owner, viz. of a quarter of the fhip: for that alfo was a cafe of tort and not of contract. It feems to have been fuppofed at the bar that L'Eglife v. Champanti, M. 12 G. 2. was the firft cafe in which fuch a diftinction was taken; but in DockTray v. Dickenfon, Skinn. 640. it is pointedly faid, "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-affumpfit, because it is another contract, but "the party may make a tort joint and feveral." In truth, till the cafe of Rice v. Shute, E. T. 10 G. 3. B. R. it feems to have been the ufual courfe to nonfuit the Plaintiff, if on the trial in an action of affumpfit it appeared that the Defendant had a partner who was not fued, as it remains now the course to nonfuit the Plaintiff if 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 faid, 2 Lev. 113. Nelthorp v. Dorrington, that Sir William Jones, à found and able lawyer, accorded hæfitanter, be well established or not. If a tort in refpect of joint property can be joint or feveral, it is very well; a breach of a joint contract with two or more cannot be joint and feveral. This Plaintiff could not fue alone, therefore we are of opinion that there must be Judgment for the Defendant. 1797. SCOTT V. GODWIN. 5 Eaft, 411. July 5th. SMITH V. O'KELLY. THIS a Marshall Serjt. on ftating the above facts, and that the Defendant could prove an exprefs promise to pay in Middlefex, obtained rule to fhew caufe why a fuggeftion fhould not be entered on the roll, 3 Bof. Pull, 618. A Defendant is not liable to be county-court for fued in the a debt under 40s. not arifing within the county, though he be refident therein. 1797. SMITH V. O'KELLY. roll, that the Defendant was refident in Middlefex, and liable to be fummoned to the county-court. Le Blanc Serjt. fhewed caufe. The county-court has no jurifdiction where the caufe of action does not arife within the county, and a plaint levied in that court muft ftate the caufe of action to have arifen within its jurifdiction, otherwise it is error. In Welsh v. Troyte, 2 H. Bl. 29. and Tubb v. Woodward, 6 T.R. 175. this Court and the Court of King's Bench refufed to ftay 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 caufes of action accrued, he could not be fued in the county-court. Marshall in fupport of the rule. A Defendant is liable to be fummoned to the county-court, if refident within the county, though the caufe of action does not arife there. The Statute of Gloucefter, 6 Ed. 1. c. 8. restrains actions under 40s. to the countycourt, but does not confine its jurifdiction to the limits of the county; and the object of the Statute of Westminster 1. 3 Ed. 1. c. 35. is to reftrain particular jurifdictions within their proper limits, and yet it never mentions the county-court. In Com Dig. tit. County, C. 5. Jurifdiction of the County-Court, there is no authority to fhew that it is confined to caufes arifing within the county. If the Defendant's liability to be fummoned to the county-court be traverfed, he will give in evidence an exprefs promise to pay in Middlefex. Befides, this not being an application to ftay proceedings because the action is under 40s. but to enter a fuggeftion pursuant to a particular act of parliament, the cafes cited on the other fide do not apply. Per Curiam. This is a ftruggle in the teeth of a folemn determination in both courts, and of the principle which governs every inferior court in this country. The rule muft therefore be discharged, but as the action is a very fhabby one, let it be without cofts. Rule difcharged without costs. July 5th, The plea de injuriâ fuâ prom priá abfque tali JONES v. KITCHIN. EPLEVIN for goods and chattels, REPLEVIN Cognizance, ftating that the place in which, &c. was a equfá to a cogni- houfe held by the Defendant, under a demife from one John zance for rent in arrear, is bad up- Oborne, at a yearly rent of 421. payable on the quarterly feaft on special demurrer. days; days; that 317. of the faid rent was due in arrear, and unpaid to the faid John Ofborne, and that the Defendant as bailiff of the faid John Ofborne acknowledges, &c. Plea in bar, de injuriâ fuá propria abfque tali caufâ. Demurrer thereto, affigning for causes, that the faid Plaintiff hath in and by his faid plea tendered and offered to put several and diftinct matters in iffue, that is to say, the holding and enjoying of the faid dwelling-houfe with the appurtenances in the faid declaration and cognizance above-mentioned, by the faid Plaintiff; and hath alfo 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 faid Plaintiff hath alfo in and by his faid plea tendered and offered to put in iffue, as well the times and manner of the payment of the faid rent as alfo the amount and quantity of the fame; and for that the faid Plaintiff fhould and ought in and by this faid plea to have tendered and offered to put in iffue one fingle 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 fame plea is above pleaded, no certain or fingle iffue can be joined in the fame; and for that the faid plea is double, multifarious, and not iffuable, and is alfo in various other refpects defective, argumentative, infufficient, and informal. Joinder in demurrer. The Court inclining againft the plea in bar called upon Shep herd Serjt. to begin in support of it. Shepherd. Where two facts are neceffary to make up one defence, neither of which is matter of record, the plea de injuriû fuá propria abfque tali caufâ is good; and fo is the rule in Crogate's. cafe, 8 Co. 66. b. 1ft refolution. In Chauncey v. Winde, Ld. Raym. 700. this diftinction from 2 Leon. 102. was taken in argument, that where the matter of record is but inducement to the action, a fpecial anfwer is not requifite; and Holt Ch. J. thought the replication de injuriá to a juftification of trefpafs, under a warrant from the commiffioners, by virtue of an act of Parliament, good. In Robinfon v. Rayley, Burr. 320. Lord Mansfield fays, "It is "true you must take iffue on a single point, but it is not necef"fry that the fingle point should confist only of a single fact.” So here tenancy in the Plaintiff and rent in arrear are both neceffary to intitle the Defendant to distrain. Though at common law the Defendant muft have set forth his title, which would have precluded 1797. JOVES V. KITCHIN. 1797. JONES v. KITCHIN. precluded the plea de injuria, yet by the 11 G. 2. c. 19. S. 22. matter of title is excluded from the avowry, and nothing is to be fet out but matters of fact, which in this cafe are tenancy and rent in arrear. If therefore this be not a good plea, the Plaintiff must either admit the Defendant's title to the land or the rent in arrear. The intention of the ftatute was only to fhorten the pleadings, and the Defendant need not have stated by whom the demife 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 fuch a plea as the prefent, and a note of his in the margin, ftating that he demurred to it; but it was overruled. The Plaintiff might have traverfed 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 fhortly by the prefent plea. Marshall Serjt. contra. If this mode of pleading be good, the 11 G. 2. inftead of conferring a favour on landlords, would produce an inconvenience: it would be better to avow as at common law, and have an explicit anfwer to one fact. This plea would put in iffue, first, the holding, which if there be no privity of contract may involve the diftrainor'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 dif trefs was taken for that rent; and in the cafe of a cognizance, like the prefent, command. The 4th refolution in Crogate's cafe is decidedly against the prefent plea in bar; I admit that if the feveral matters put in iffue make together but one defence, they may all be put in iffue together, and then de injuriá fuá propriá abfque tali caufa is proper. But when the Plaintiff makes title by his declaration to any thing, and the Defendant pleads fomething in deftruction thereof or of the Plaintiff's caufe of action, then the Plaintiff muft reply fpecially, and not fay abfque tali caufâ, for abfque tali caufâ goes to the whole plea. Yelv. 157. Taylor v. Markham, Cro. Jac. 224. S. C. 1 Brownlow 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 juftified as fervant of J. S. who was feifed in fee: replication, de injuriâ futá propriá abfque tali caufa, and judgment for the Defendant. The cafe is fhortly re 6 ported |