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UDEL v. Atherton, 437 Upton v. Townend, 631 Urquhart v. Barnard, 366 Usill v. Hales, 286

VALLANCE v. Birmingham Land Cor

poration, 20 Valpy v. Manley, 451

v. Oakley, 538 Van Dieman's Land, Bank of, v. Vic

toria, Bank of, 172
Van Toll v. South-Eastern Rail Co., 258
Varley v. Coppard, 402
Vaughton v. London & North-Western

Rail. Co. 257
Veitch v. Russell, 433
Vernon v. Smith, 401
Verrall v. Robinson, 618
Vicars v. Willcocks, 284, 539
Vincent v. Cole, 644

Thomas v. Rhymney, 263

v. The Queen, 506

v. Welch, 507 Thompson v. Lediart, 518

v. Shirley, 618
Thornburn r. Barnes, 133
Thornton v. Meux, 536
Thorogood v. Bryan, 463

v. Robinson, 601
Thorp v. Houldsworth, 55, 56, 65, 89
Thrift r. Youle, 195
Tickle r. Brown, 607
Tidey v. Mollett, 399
Tildesley v. Harper, 62, 65, 88, 89
Times Insurance Co. v. Hawke, 402
Tippets r". Heane, 419
Todd v. Flight, 490

1. Kerrich, 649
Toleman 1. Portbury, 517
Toler v. Slater, 400
Tomkinson r. Straight, 537
Topham r. Braddick, 108
Towne c. Heinrich, 629

1. Lewis, 618
Treadwin v. Great Eastern Rail. Co. 257
Trefall z. Borwick, 619
Treleaven v. Bray, 21
Treloar 1. Bigge, 403
Trevelyan r. Charter, 109
Trinity House v. Clark, 214
Tripp v. Armitage, 645
Trueman 1. Hurst, 107
Tucker v. Barrow, 107
Tuller v. Dunn, 421
Tully 1. Howling, 214
Turner v. Ambler, 426

2. Bennett, 516
o'. Dodwell, 419

. Ford, 616
2. Hardcastle, 601
v. Hayden, 167
v. Hednesford Gas Co., 74, 75
v. Lamb, 401
2. Samson, 175
1. Thomas, 158
v. Tresby, 358

v. Walker, 533
Twemlow 1. Oswin, 365
Twiney r. Etherington, 364
Twycross v. Grant, Add. xxxvi.
Tyne v. Rosedale, &c., Iron Co., 538

v. Slaymaker, 575
Viner v. Hawkins, 450
Violett v. Simpson, 418
Virtue v. Jewell, 194
Vleirboom v. Chapman, 215
Vose v. Lancashire Rail. Co., 463

WADHAM v. Marlowe, 400
Wagstaffe v. Sharp, 434
Wainwright v. Bland, 385
Waite v. North-Eastern Rail Co., 463
Wakelee v. Davis, 69, 90
Wakeman v. Robinson, 461
Walker v. Balfour, 22

v. Brewster, 488
v. Hatton, 401
v. Jackson, 261
v. Macdonald, 169
v. Maitland, 364

v. Nussey, 537
Wallace v. Kelsall, 105

v. Woodgate, 621 Waller v. Lacy, 419

v. South-Eastern Rail. Co., 463 Wallis v. Delmar, 516

v. London & South-Western
Rail. Co., 620
Wallon v. Lavater, 506
Walters v. Smith, 531
Want v. Reece, 501
Waples v. Eames, 364

Ward r. Beck, 363

0. Ward, 306

1. Weeks, 284 Warner v. Twining, 74

v. Willington, 535 Waters t. Earl of Thanet, 420

v. Monarch Ass. Co., 388
Watling v. Oastler, 464
Watson v. Evans, 181

v. Hawkins, 29, 40, 90, 294
v. Rodwell, 33, 37, 38

t. Russell, 450
Watton v. Penfold, 518
Watts v. Kelson, 606
Waugh v. Cope, 419
Weguelin r. Collier, 619
Weir v. Aberdeen, 366
Welb r. Page, 261
Welch v. Seaborn, 449
Weldon v. Gould, 620
Welfare v. London Brighton & South

Coast Rail. Co., 489 Wellock v. Constantine, 126 Wells v. Abrahams, 126

0. Hopwood, 365 Wenman 7. Ash, 283 Werner v. Humphreys, 317 West v. Dobbs, 403 West Counties Manure Co. v. Lawes'

Chemical Manure Co., 292 Westlake v. Adams, 120 Wetherell v. Julius, 154 Wharton v. Brooks, 281

v. Lewis, 208
Wheatley v. Williams, 413
Wheeler v. Stevenson, 631
Wheelton v. Hardesty, 385
Whincup v. Hughes, 450
Whitaker v. Edmonds, 191
White v. France, 488

v. Hunt, 403
v. Jameson, 489

v. Lancashire & Yorkshire Rail.

Co., 257
Whitehead v. Walker, 172, 418
Whitehouse v. Fellowes, 418
Whitmore v. Humphries, 516

v. Smith, 133
Wigmore v. Jay, 463
Wild v. Williams, 531
Wilkinson v. Evans, 535

Wilkinson v. King, 615
Willans v. Taylor, 426
Williams v. Andrews, 18, 19

v. Brynes, 535
v. Byrne, 649
v. Earl, 403
v. Heales, 318, 403
v. Jones, 137
v. Lake, 336
v. Paul, 356
v. Smith, 192

v. Williams, 319 Williamson v. Allison, 637

v. Naylor, 319, 401

v. Watts, 358
Willins v. Smith, 421
Willis v. De Castro, 531
Willoughby v. Backhouse, 530
Wilson v. Breslauer, 159

v. Finch Hatton, 399, 630
v. Hodson, 319
v. Lancashire Rail. Co., 260
v. Lloyd, 337, 531
v. Rankin, 368

v. Wigg, 317 Wiltshire Iron Co. v. Great-Western

Rail. Co., 620
Wimshurst v. Deeley, 538
Winstone v. Linn, 120
Winterbotham v. Lord Derby, 487
Witchcot v. Linesey, 400
Wood v. Bell, 619

v. Boosey, 277, 278
v. Brown, 284

v. Mytton, 181 Woodcock v. Houldsworth, 193 Woodger v. Great Western Rail. Co.,

260, 264 Woodland v. Fear, 146 Woodley v. Metropolitan Rail. Co.,

Woods v. Page, 401
Woodward v. Lander, 286
Woolaston v. Hakewell, 317
Wortb v. Gilling, 330
Worthington v. Warrington, 559
Wren v. Wild, 292
Wright v. Clements, 284

v. Fairfield, 154
v. Hitchcock, 506
v. Leonard, 350, 437

Wright v. London and North-Western

Rail. Co. 463
v. Midland Rail. Co., 263

v. Smith, 404 Wyat v. Bulmer, 191 Wylde v. Radford, 620

YALE v. Rex, 199 Young v. Kitchen, 239

v. Raincock, 400

ZENOBIO v. Axtell, 284
Zunz v. South-Eastern Rail. Co., 258


Page 53, line 7 from the bottom.

Inconsistent defences- Defence of payment into Court pleaded with a denial of the plaintif's right to recover.

The following is a full report of the case of Burdan v. Greenwood mentioned in the text. It is reported in L. R. 3 Ex. D. 251 ; 47 L. J. App. 628.

The action was brought to recover a sum of over £5,000 for commission earned by the plaintiff. The defendant by his statement of defence, (1) denied that any contract was ever made by which the plaintiff was entitled to commission ; (2), if such a contract was made, denied that the plaintiff had performed his part of it so as to entitle him to recover his commission ; (3), alleged that the plaintiff's claim (if any) was barred by the Statute of Limitation ; (4), averted that the contract was induced by fraud ; and (5), finally pleaded this paragraph : “Lest, contrary to what the defendant believes and contends, he is under any liability to the plaintiff, he brings into court the sum of £130 and says that the said sum is enough to satisfy the plaintiff's claim in respect of the matters herein pleaded to.” The plaintiff applied to have the defence struck out as embarrassing. A judge at chambers, and then the divisional Court, made an order to that effect; but on appeal this judgment was reversed. The following valuable and interesting judgment of Lord Justice Thesiger is of sufficient importance to be set out at length. His Lordship after stating that the defendant's counsel had expressed his willingness that the allegations of fraud should be taken as struck out of the defence, then proceeded thus :-“That being so, two questions have been argued : the first, whether in any case or in all cases under the Judicature Acts and Orders, a pay. ment into Court, at the same time that the cause of action in respect of which it is paid in is denied, should be allowed ; the second, whether, assuming such a payment to be in some but not in all cases proper, the present is one of those cases. The first question is one of very great importance. The practice of Judges at Chambers, since the case of Spurr v. Hall (2 Q. B. D. 615) was decided, has been to disallow in all cases a payment into Court, concurrent with paragraphs denying or traversing the cause of action in respect of which the payment is made, and in the present case, Spurr v. Hall was treated in the Court below as an authority properly supporting the practice, although the learned judges expressly invited an appeal upon the point.

“Payment of money into Court originally existed in the shape of a rule to strike the sum paid in out of the damages, which rule it was necessary to prove at the trial. By the general rules of Trinity Term, 1 Vic., a plea of payment into Court was substituted for the old practice. The question then arose, whether inasmuch as the statute of 4 Anne, c. 16, s. 4, enabled a defendant, with leave of the Court,

to plead as many several matters as he should think necessary for his defence, the plea of payment into Court ought to be allowed, together with other pleas to the same cause of action. A uniform practice thereupon sprang up, under which payment into Court was only allowed to be pleaded where the cause of action to, or in respect of, which it was made and pleaded was not traversed, and was consequently admitted. That practice was continued after the passing of the Common Law Procedure Act, 1852, s. 84, under which certain specified pleas (amongst which the plea of payment into Court was not included) might be pleaded together without leave, while all pleas other than those specified had to be made the subject of leave of a judge, or of the Court, if it was desired to join them with any other plea. The ground upon which this practice, both before and after the Common Law Procedure Act, 1852, was based, was the inconsistency in the record, which, it was held, would arise if a plea of payment into Court were joined with other defences to the same cause of action. See earing upon this point the cases Key v. Thimbley (6 Ex. 692-694); Maclellan v. Howard (4 T. R. 194); Jenkins v. Edwards (5 T. R. 97).

“In this state of circumstances, the Judicature Acts and Orders came into existence and swept away the old forms and practice of pleading, leaving it open to a defendant, as the general rule, to raise by his statement of defence, without leave, as many distinct and separate and therefore inconsistent, defences as he might think proper, subject only to the provision contained in Order XXVII. r. 1, which is in these terms (reads it). As regards, however, payment of money into Court, special provision is made by Order XXX., and the Court has to see first, whether there is anything in the rules comprised in the last mentioned order, which precludes a defendant from paying money into Court in respect of a cause of action, the existence of which he at the same time denies. This point has not been in terms taken in argument before us, and was not made the ground of the decision in the Court below, but it is involved in the argument, and it is desirable to consider it as introductory to the consideration of the point arising upon Rule 1 of Order XXVII. It is suggested that money is not paid into Court by way of satisfaction or amends, within the meaning of Rule 1 of Order XXX., when it is paid into Court in respect of a claim or cause of action, which the defendant does not admit to exist in fact. Such an argument does not, however, appear to us well founded. The sum paid in is (as has been admitted on the part of the defendant's counsel to be the effect in this action) absolutely appropriated to the purpose of satisfaction or amends. The plaintiff may obtain the payment of it out to himself in manner provided by the third rule of the order under consideration, and may, either under Rule 4, accept it in satisfaction of the cause of action in respect of which it is paid in, and if he accept it in satisfaction of the entire cause of action, may tax his costs and sign judgment for the costs so taxed ; or, if he think proper, may go on with the action for the purpose of recovering something more, in which event the issue, quoad the defence of payment into Court, will be the same as it was before the coming into operation of the Judi. cature Acts, although there will be other issues going to the same cause of action, which the tribunal by which the action is tried will have to determine. We are of opinion, therefore, that there is nothing in the rules comprised under *Order XXX., which precludes a defendant from taking the course under consideration. The question then arises whether the payment into Court necessarily tends “to prejudice, embarrass, or delay the fair trial of the action " within the meaning of Rule 1 of Order XXVII. Now in considering this question we are

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