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Defence

of £99 138. 3d in respect of the matters above mentioned, to claim by but the plaintiff refused to accept the same. outgoing against 6. The balance of the plaintiff's claim, amounting to incoming tenant.

£25 198., is, as appears by his particulars delivered herein, claimed by him in respect of certain ploughing alleged to have been done by the plaintiff upon the said farm and premises. The said ploughing is not specified in the said agreement above mentioned as one of the matters in respect of which payment or compensation is to be made by the landlord or coming-in tenant to the plaintiff. The defendant never requested the plaintiff to do the said ploughing, nor agreed to pay or compensate him for so doing. On the contrary, the said ploughing was already done when the defendant first went over the said farm, and the defendant took the said farm from the said landlord as it then was, subject only to the payments provided by the above-mentioned agreement.

7. The said ploughing, if done at all, was done in an improper and unhusbandlike manner, without first cleaning the

ground, and was of no use or benefit to the defendant. Payment 8. The defendant brings into Court the sum of £99 138. 3d., into Court. and says that it is sufficient to satisfy the plaintiff's claim in

this action.

Reply.

Reply. 1. The plaintiff joins issue with the defendant upon his defence, except so far as it admits the plaintiff's claim.

2. By the custom of the country the plaintiff, as outgoing tenant, was entitled to be paid by the landlord the value of the ploughing and tillages relinquished and given up by the plaintiff on his leaving the farm. The defendant, after having taken the said farm, agreed with the plaintiff (with the consent of the landlord) to pay the plaintiff in respect of all such matters as the plaintiff, as outgoing tenant, was entitled to be paid for by the landlord. The defendant and the plaintiff accordingly appointed their respective valuers to ascertain the value thereof. They did ascertain the value of the said ploughings and tillages at the sum of £25 198., which is the value thereof, and afterwards the defendant repudiated his said agreement and refused to pay the said sum.

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3. When the defendant entered upon the said farm he took Action by possession of the said ploughings, tillages, &c., for his own outgoing profit, and thereupon became liable to the plaintiff for the value incoming

against thereof, both by the custom of the country in that behalf and tenant.

Reply. otherwise.

Rejoinder and Demurrer. 1. The defendant joins issue upon the 2nd and 3rd paragraphs of the reply.

2. And the defendant demurs to the 3rd paragraph of the Demurrer. reply, and says that the same is bad in law on the ground that the alleged custom, if any, is unreasonable and bad in law, and that the said paragraph shows no facts which in law constitute any such liability as therein alleged, and on other grounds sufficient in law to sustain this demurrer.

Tender (a).

Statement of Defence (Claim not given). 1. The defendant denies the allegation in the 4th paragraph Form of of the statement of claim, that he ever refused to pay the said pleading

tender. sum of £150 to the plaintiff.

(a) It is a good defence to an action that the defendant before breach Tender only tendered the amount of the debt due, and that he has ever since been a defence ready and willing to pay the same. This plea is only applicable where where the party pleading has been guilty of no breach of his contract. there is no (llume v. Peploc, 8 East, 168, 170.) Therefore where a debt is payable prior on a day certain, as on an acceptance, a plea of tender post diem is breach of generally inapplicable. (Poole v. Tanbridge, 2 M. & W. 223.) The aver- contract. ment that the defendant has been “always ready and willing,” is a material averment, and therefore the defence will be defeated by showing a demand and refusal prior or subsequent to the tender. (Bennett v. Parker, I. R. 2 C. L. 89, Ex.) The defence of tender operates as an ad. To what mission of the special contract stated in the statement of claim to which extent it is it is pleaded (Cox v. Brain, 3 Taunt. 95); and thus on an action of an admisguarantee it supersedes the necessity of proving the guarantee to be in sion. writing. (Middleton v. Brener, Peake, 15.) Coming to the essentials of a valid tender, it may be made to the

To and by creditor or one generally authorised by him to receive money on his

whom it behalf, and it may be made either by the debtor or his agent. Tender

should be of a part of one entire debt is inoperative (Diron v. Clarke, 5 C. B.

made. 365); and the debtor cannot apply a set-off in reduction of the amount due, so as to make a tender of the balance good. (Scarle

Form of pleading tender.

2. The defendant says that he always was and still is ready and willing to pay the said sum to the plaintiff, and before the commencement of this action he duly tendered the same to the plaintiff in discharge of the said debt, but the plaintiff refused to accept it.

Trespass de Bonis asportatis (a).

Action of Trespass for Trespass and Injury to a Horse. Claim for 1. The plaintiff is a farmer residing at --, in the county of trespass and injury

H., and the defendant is a licensed victualler carrying on to a horse. business at the same place.

v. Sadgroce, 5 E. & B. 639; L. J. 25 Q. B. 15.) If the objection appears on the record, the defence will be bad on demurrer; if it does not so appear, the plaintiff must reply that the sum tendered was part

of a larger amount due which formed one entire cause of action. (IlesWhen a keth v. Fawcett, 11 M. & W. 356.) A tender of more than the sum tender of a

due, requiring change, is bad (Betterbee v. Daris, 3 Camp. 70); but a larger sum

tender of too much without requiring change is good. (Read v. Goldis bad.

ring, 2 M. & S. 86.) As to the kind of money in which a legal tender

can be made- (1) for amounts over £5 the 3 & 4 Wm. 4 c. 98, s. 6, In what

provides that Bank of England notes shall be a good tender. (2) Gold kind of

coins issued from the mint a good tender for any amount. (3). Silver money it

coins for any sum not exceeding 40s. (4). Copper coins for any sum not must be

exceeding 1s. A county bank note should not be tendered ; but if it is made. tendered and the party objects, not to the kind of payment offered, but

refuses to take it on some other ground, the tender may be good, for a party must rely on the objection he states, and will be taken to have

waived any other objection. (Polglass v. Olirer, 2 C. & J. 15; Lockyer Money

v. Jones, Peake, 239.) The actual production of the money due is neces. must gene- sary, unless the creditor dispenses with the production of it at the time, rally be or does something equivalent to a dispensation (Thomas v. Erans, 10 produced,

East, 101); and the tender must be unconditional. An offer of payment and no clogged with a condition that it should be accepted as the balance due, condition does not amount to a legal tender. (Erans v. Judkins, 4 Camp. 156 ; imposed. Hough v. May, 4 Ad. & E.954.) A tender of the full amount demanded,

accompanied with a protest, is good (Scott v. Uxbridge f: Rickmansworth Rail. Co., L. R. 1 C. P. 596); but not so if the tender cannot be accepted without supplying an admission that no more is due (Boron v. Oxen, 11 Q. B. 130) ; so where a tender is accompanied with a demand of a

receipt in full of all demands. (Ryder v. Townsend, 7 D. & Ry. 119.) Quare,

There is no little discussion in a number of old cases as to whether a Is debtor debtor when paying his debt can demand a receipt at all; but by the entitled to 33 & 34 Vict. c. 99, s. 123, the payee of money is liable to a penalty, if in a receipt any case where a receipt would be liable to duty he refuses to give a

stamped receipt ; and therefore, where the debt is £2 or over, the practical effect is that the debtor may claim a receipt.

(a) This action lies for an actual taking or for a direct injury to chattels. In order to maintain the action the act of the defendant need not be

2. On the 1st of March, 1877, the defendant wrongfully Claim for took a horse belonging to the plaintiff out of the plaintiff's trespass

and injury possession, namely, out of the plaintiff's stable, and rode the

to a horse. said horse for a long distance, namely four miles, at full speed, whereby the said horse became broken-winded and was rendered wholly useless to the defendant.

3. The plaintiff claims £30 damages.

Statement of Defence. 1. The defendant says that he had a general permission and Defence. authority from the plaintiff to ride the said horse at such times as he was not required for the plaintiff's own use, and the defendant when he took the said horse from the plaintiff's stable as alleged in the 2nd paragraph of the statement of claim and Leave and rode him as in the next paragraph mentioned, did so in the licence. exercise of the right he had by virtue of the said permission and authority

intentional. (Colwill v. Recres, 2 Camp. 575.) The action lies for When the taking goods under an illegal distress, as where no rent is due or things action of privileged from distress are seized, but does not lie for irregularities trespass where the distress itself was lawful. (See Distress.) So for beating lies. a horse or other animal belonging to the plaintiff. (Slater v. Swan, 2 Str. 872.) So for the complete destruction of a thing as well as an injury to it. (Co. Lit. 57, a.) But the action does not lie for an indirect interference with the owner's possession, as by locking the door of a room or place in which the goods are placed or otherwise preventing the plain

When not. tiff's baving access to them. (Ilartly v. Moxham, 3 Q. B. 701 ; Thoroughgood v. Robinson, 6 Q. B. 769.)

The plaintiff must have the actual or constructive possession of the Plaintiff goods at the time of the trespass to be able to maintain the action, or at must have least a legal right to the possession. (Balme v. Hutton, 9 Bing. 471, 477.) actual or A special or temporary right to the present possession, as that of a hirer construcor carrier of goods or a bailee, who has actual possession at the time of the tive pos. taking, injury, or destruction is sufficient to support the action (Collwill session. v. Recres, supra), even against the absolute owner or bailor. (Brierly Fact of v. Kendall, 17 Q. B. 936 ; Turner v. Ilardcastle, 31 L. J.C. P. 193.) The fact of possession is primâ facie evidence of the right to the possession,

possession and is therefore sufficient to maintain the action against a wrongdoer

prima who cannot show a better title, or authority ander a better title. (Elliot facie evi

dence of v. Kempe, 7 M. & W. 212.) Therefore, except in the case of an authority under a better title a defendant will not be allowed to set up the jus tertii right to to rebut the title of the person in possession at the time of the trespass.

possession. But if the plaintiff had not the actual possession at the time, the defendant may set up the jus tertii. (16.) See generally Armory v. Delamirie, 1 Smith L. C. 7th ed. 357.

The action lies by one tenant in common of a chattel against the other or others for an injury, &c., to such chattel.

By 3 & 4 Wm. 4, c. 42, s. 29, the jury may in this action give damages in the nature of interest over and above the value of the goods.

Defence to claim for trespass to a horse.

2. The defendant denies the allegations contained in the 2nd paragraph of the statement of claim so far as they allege that the defendant rode the said horse for four miles at full speed, and also that the said horse became thereby brokenwinded. The defendant rode the said horse at a moderate pace and in a careful manner. If the said horse is now wholly useless to the defendant, he has become so from some other cause than his having been ridden by the defendant.

Reply.

Reply. 1. The plaintiff joins issue on 2nd paragraph of the statement of the defence.

2. As to the allegation in the 1st paragraph the plaintiff says that before the trespasses in the statement of claim mentioned he revoked the permission and authority previously given to the defendant to ride the said horse as in the said paragraph mentioned.

Claim for
trespass
to chattels.

Action for Trespass to Chattels. 1. The plaintiff is a medical student residing at No. Gower Street, in the county of Middlesex. The defendant is a lodging-house keeper residing at No. —Euston Road.

2. Up to and on the 4th of January, 1877, the plaintiff was the occupier of furnished lodgings in the defendant's house, and he had at the said lodgings various articles of property, including a portmanteau containing wearing apparel and a box containing a large number of books.

3. On the said 4th of January the defendant wrongfully removed from the said apartments the said portmanteau and box with their contents, and took them into the part of the said house occupied by him and placed them in a wet and damp cellar, whereby the said wearing apparel and books became mildewed and damaged.

4. The defendant also forced open the lock of the said portmanteau and took out several articles of wearing apparel which he has since regularly worn, and the same have become greatly damaged and deteriorated in value.

The plaintiff claims - damages.

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