OBS. that both he and the plaintiff were in fault. Elwell v. Grand Junction Ry. Co. 3 M. & W. 245; Davis v. Mann, 10 M. & W. 548.

Or that others, and not he, are liable. General Steam Navigation Co. v. Guillou, 11 M. & W. 877, cited post, 670," Negligence."

Or controvert in any other way than by the general issue, that he did not do the wrongful act complained of. Pickwood r. Neate, 10 M. & W. 206; Gough v. Boyar, 2 M. & W. 770; post, "Agent," 637; or show that the plaintiff himself did it. Norton v. Scholefield, 9 M. & W. 665, per Parke B.

If libel or slander is of the nature of a privileged communication, that destroys its malicious character, and negatives the existence of any actionable wrongful act; see O'Brien r. Clement, 15 L. J. Ex. 285; such a defence therefore may be given in evidence under not guilty. Little v. Price, 5 Ad. & E. 645; post, 658; and see Cotton v. Brown, 3 Ad. & E. 312, per Denman C. J. The inducement is generally some assertion of a right in the plaintiff unconnected with the wrongful act complained of, and the exercise of which is not itself unlawful. Per Maule J. Card v. Case, 5 C. B. 622; 17 L. J. C. P. 126; and see per Patteson J. Cotton v. Brown, 3 Ad. & E. 312; Rose . Groves, 5 M. & G. 613.

Instances of this plea, admitting the inducement, will be found under the head of "Malicious Prosecution," post, 668; “ Sheriffs," post.

The effect of the general issue in trover will be found under that title, post.

PLEA OF NOT GUILTY. (b)

That he (c) is not guilty.

NOT GUILTY BY STATUTE. See ante, Obs. 286.

OBS.

ABATEMENT.

See ante," Pleas in Contract," p. 268 et seq.; where see forms of pleas, that may easily be adapted to torts.

ACCIDENT.

See pleas, post, "Negligence," 670, and generally, ante, "Negligence,” p. 564.

ACCORD AND SATISFACTION.

Plea of Accord and Satisfaction. (d)

That he delivered to the plaintiff, and the plaintiff accepted and received from the defendant, certain goods [or "paid to the plaintiff, who then received from the defendant £- -"] in full satisfaction and discharge of the grievances in the declaration mentioned, and of all the said causes of action in respect thereof.

(b) Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), sch. B, 43.

(c) "They are," or if in an action against husband and wife for the tort of the latter, that the "defendant A." (the wife), is not guilty.

(d) See Obs., ante, 288; [Boosey v. Wood, 3

H. & C. 484.] See a plea of accord and satisfaction by one of several defendants. Bainbridge v. Lax, 9 Q. B. 819; 16 L. J. Q. B. 85. See, also, Thurman v. Wilde, 11 Ad. & E. 453; [Hey v. Moorhouse, 6 Bing. N. C. 52.]

AGENTS.

OBS. See "Attorneys," ante, 304. Not guilty would deny the breach of duty charged as neglect, misconduct, &c. but not the retainer of the defendant in the character alleged, nor the delivery of goods to him to be sold, &c. in that character. Webb v. Page, 6 M. & G. 196; 1 D. & L. 531; R. G. T. T. 1853, ante, Obs. In case against an agent for improperly drawing a bill in plaintiff's name, a plea that he drew it for a purpose to which his authority extended was held bad, as amounting to the general issue. Pickwood v. Neate, 10 M. & W. 206. See post, "Carriers."

Plea denying the Retainer, &c. (e)

That the plaintiff did not retain or employ him [or "deliver to him the said goods and chattels or any part thereof, for the purpose or upon the terms," as the case may be] as alleged.

ANCIENT LIGHTS. (ƒ)

OBS. Not guilty denies the mere fact of obstruction, admitting the plaintiff's possession of the house, and that he was entitled to the right to the enjoyment of the light. Frankum v. Lord Falmouth, 2 Ad. & E. 452. See R. G. T. T. r. 16, 1853. The right to an ancient light, since the passing of 2 & 3 W. 4, c. 71, s. 3, depends upon that statute, and not on any presumption of a grant or fiction of a license having been obtained from the adjoining proprietor. Tapling v. Jones, 84 L. J. C. P. 342; L. R. 1 H. L. 260.

1. Denial that Plaintiff was possessed of the House. (g) That the plaintiff was not possessed of the said messuage as alleged.

2. Denial of the alleged Right to the Light, &c. (h)

That there were not of right any or either of the said windows through which the light or air ought to have entered as alleged.

3. Plea justifying Obstruction under an Act of Parliament.
Turner v. Sheffield Ry. Co. 10 M. & W. 425.

(e) See form by a broker, Turpin v. Bilton, 5 M. & G. 460.

(f) See forms of declaration and notes, ante, 479. Effect of not guilty. Ante, 635.

(g) This plea would be proper where the action is incorrectly brought by a landlord upon his possession, instead of charging an injury to his reversion; see ante, 594, form 1; the house having been in the occupation or holding of a tenant when the grievance existed. The next form is proper where the exclusive right to the light is denied.

(h) This plea puts the plaintiff on proof of his right by twenty years' uninterrupted enjoyment, &c. See 2 & 3 W. 4, c. 71, 8. 3; ante, Obs. 479; or by grant. It would seem to be the proper form where the defendant contends that the right has been lost, by the mode of the enjoyment of the light having been essentially altered by the

A

plaintiff himself to defendant's prejudice, &c. See Garritt v. Sharp, 5 Ad. & E. 325. See another form (with a special inducement), and law, Flight v. Thomas, 11 Ad. & E. 690, and another, though semble, a double traverse, Garritt v. Sharp, ubi supra. special plea of mere non-user would be bad. See Manning v. Wasdale, 5 Ad. & E. 758. The statute 2 & 3 W. 4, which sanctions the general form of claiming the right to light in a declaration for obstructing it (see ante, 479, 480, Obs.), provides that "if the general allegation be denied, all and every the matters in this act mentioned and provided, which shall be applicable to the case, shall be admissible in evidence to sustain or rebut such allegation.' See a form justifying obstructing ancient lights under a railway act, Turner v. Sheffield & Rotherham Ry. Co. 10 M. & W. 426.

4. Plea on Equitable Grounds that the Plaintiff acquiesced in the Building causing the Obstruction.

Davies v. Marshall, 10 C. B. N. S. 692; 31 L. J. C. P. 61. (1)

[5. Plea justifying an Entry on the Plaintiff's Land to remove an Obstruction to the Defendant's Ancient Lights.

That at the time of the alleged trespasses the defendant was possessed of an ancient dwelling-house adjoining the said close of the plaintiff, and by reason thereof was entitled to have the light and air enter into the said dwelling-house through a certain ancient window therein; and because the said building in the said close wrongfully obstructed the light and air, and prevented the same from entering into the said dwelling-house through the said window, the defendant entered the said close of the plaintiff and pulled down the said building in order to remove the said obstruction, doing no more than was necessary that purpose, which are the alleged trespasses.

A like plea. Thompson v. Eastwood, 8 Ex. 69.]

for

ANIMALS. See "Mischievous Animals," post.

ASSAULT. See post, "Trespass to the Person."

ATTORNEYS.

See ante, "Agents," as to the effect of not guilty, and "Attorneys,” ante, Pleas in Contract, p. 304.

OBS. Effect of not guilty, ante, "Agents," and Pleas in Contract, ante, 311. The bailment if denied must be specially traversed, as that the plaintiff did not let to hire, &c. to the defendant. See post, "Carrier."

BANK OF ENGLAND AND BANKERS.

OBS. See pleas in the forms referred to, ante, 486, particularly, Coles v. Bank of England, 10 Ad. & E. 437; and see Pickwood v. Neate, 10 M. & W. 206. The plea of not guilty would merely deny the default or breach of duty, and would admit the inducement of plaintiff's title or right. See form of plea by bankers sued for not paying a check of their customer. Whittaker. Bank of England, 6 C. & P. 700, 702.

(i) See replication thereto.

BOOKING OFFICE KEEPER. See ante, 486.

CARELESSNESS. See "Negligence," post.

CARRIAGES, COLLISION OF. Post, "Negligence."

CARRIERS.

OBS. See generally, ante. 94 and 355.

An example is given, R. G. T. T. r. 16, 1853. "In actions against a carrier, the plea of not guilty will operate as a denial of the loss or damage but not of the receipt of the goods by the defendant as carrier for hire, or of the purpose for which they were received."

case.

Of the effect of not guilty. Where the defence is founded upon the provisions of the carriers' act, 1 W. 4 c. 68, cited, ante, 94, requiring that the value of goods of a certain description should be declared, &c. there should be a special plea accordingly. Syms v. Chaplin, 5 Ad. & E. 634. See Form 5, ante, 378, and another form in contract, where the goods were delivered to a servant of the defendant, not at a receiving house. Syms v. Chaplin. See Boyce v. Chapman, 2 Bing. N. C. 222. These forms will equally apply in See a plea of a contract (not within the carriers' act) limited by previous notice. Wylde . Pickford, 8 M. & W. 443. Plea by a carrier (charged as a wharfinger) that the goods were destroyed by an accidental fire. Bourne v. Gatliffe, 7 M. & G. 850. Money may be paid into court by a carrier sued for the loss of or injury to goods. See " Payment," post. The replications suggested, ante, 357, would in general be applicable to pleas founded on the carriers' act. Where there has been an arrangement between the bailor and a sub-carrier without notice to the carrier, the carrier was held not liable for the carelessness of the sub-carrier in not carrying out the arrangement. Butterworth v. Brownlow, 34 L. J. C. P. 266; 19 C. B. N. S. 409.

1. Plea by a Carrier denying the Receipt by him of the Goods. (k) That the plaintiff did not deliver to him, nor did he receive the said goods and chattels from the plaintiff, or any of them for the purpose alleged.

2. Plea that the Defendant was not a Common Carrier. That he was not a common carrier [of goods, or of passengers and their luggage] as alleged.

3. Plea that the Plaintiff did not pay the Carriage. (1) That the plaintiff did not pay, nor was he ready and willing to pay to the defendant his reasonable charge for the carriage and delivery of the said goods.

(k) See forms, &c. Palmer . Grand Junction Ry. Co. 4 M. & W. 750; Davey v. Mason, C. & Marsh. 46; supra, Obs.; form of plea by ship-owner, Major . White, 7 C. & P. 42; Quiggin r. Duff, 1 M. & W. 174. What is a sufficient delivery, or is a receiving house of a carrier. Sims v. Chaplin, 5 Ad. & E. 534; ante, 99, and notes. The above plea puts the plaintiff on proof of a delivery to the carrier or his servant for the purpose alleged.

(f) See a plea of tender of the goods to

and refusal to pay the carriage by the plaintiff. Crouch v. The Great Western Ry. Co. 26 L. J. Ex. 418; [2 H. & N. 491.] Plea to an action against a company for refusing to receive and carry a horse, that the sender declared the value of the horse to be over £50, and that the company demanded an increased fare, under 17 & 18 Vict. c. 31, s. 7, which he refused to pay; and right of company to make such demand. Robinson v. South Western Ry. Co. 34 L. J. C. P. 234 ; [19 C. B. N. S. 51.]

4. Plea by a Carrier, sued on his Common Law Liability, that the Goods (Oil) were lost by being put in an Insecure Cask. (m)

As to the not safely and securely delivering the said hogshead of oil for the plaintiff, the defendants say that at the time the said oil was delivered to them as aforesaid the same was contained in a cask, which was then bad and insufficient, and not properly secured and coopered, without any default on the part of the defendants, for which reason, and not otherwise, the said cask or hogshead afterwards, and after the defendants had conveyed the same to and before the defendants could safely and securely deliver the said oil there for the plaintiff as aforesaid, broke, burst, and gave way, and the said oil therein then escaped from the said cask or hogshead, and was wholly wasted and lost without the defendants' default.

5. Plea by a Carrier by Water, that the Goods lost were Silver, within the 26 Geo. 3. c. 86, s. 3, that their Value was not declared in the Bill of Lading, and that they were stolen without Defendant's Default. (n)

Gibbs v. Potter, 10 M. & W. 70.

6. Plea of Notice and Stoppage in Transitu by an Unpaid Con

signor. (o)

Jones v. Jones, 8 M. & W. 431.

COGNIZANCE. See post, "Replevin.”

COLLISION. See "Negligence," post, 670.

COMMON OF PASTURE.

OBS. -"Not Guilty" would deny the mere fact of obstruction, and not deny the plaintiff's possession of the tenements in respect of which he claims common of pasture, or the existence or validity of such claim.

The prescription statute, 2 & 3 W. 4 (478, 479), which sanctions the general form of alleging a right of common in case for disturbing it, provides that, “If the general allegation be denied, all and every the matters in this act mentioned and provided, which shall be applicable to the case, shall be admissible in evidence to sustain or rebut such allegation." Where the obstruction in fact is admitted, but justified or excused on account of a license, &c. there (m) This admits that the defendant did not safely or securely deliver the goods, and excuses the non-delivery by reason of the consignor's neglect. In Webb v. Page, 6 M. & G. 196; D. & L. 531, it was held that under the general issue the defendant could not show that the loss of the goods arose from the plaintiff's own negligence in packing them, or from the plaintiff having misrepresented their weight so as to induce the defendant to employ an insufficient van.

See, also, Walker v. Jackson, 10 M. & W. 161; Ohrloff v. Briscall, L. R. 1 C. P. 231; 35 L. J. C. P. 63; Czech v. The General Steam Navigation Co. 37 L. J. C. P. 3; L. R. 3 C. P. 14.

(n) See, now, 17 & 18 Vict. c. 104. s. 503, and Williams v. The African Steam Ship Co. 1 H. & N. 300; 26 L. J. Ex. 69; De Rothschild r. Royal Mail Steam Packet Co. 7 Ex. 734; 21 L. J. Ex. 273; and ante, 360. (0) Sec, also, ante, 359, 360.