tenant thereof to the defendants, in manner as they had in Mr. Serjt. Lawes, in reply.-Both the demises refer to the same subject-matter. The plaintiff has denied any tepancy in Thomas Pettman, otherwise than was alleged in the plea. That, therefore, had reference to the first lease from William Pettman, which was still in existence, and consequently prevented the defendants from their right to distrain. The replication only takes issue on whether Thomas Pettman was tenant to the defendants. That depends on circumstances, which are fully set out in the plea in bar, whereby it fully appears, that the defendants had no right to distrain. The facts therein stated, constitute the substance of the issue. The tenancy is admitted as stated in the avowry, but coupled with those other circumstances, it amounts to an avoidance of the defendant's remedy by distress. Lord Chief Justice DALLAS.-It clearly appears to me, that the pleadings as framed, substantially put in issue the only material question to be tried between the parties. It is, whether Thomas Pettman held under the defendants, as stated by them in their avowry. The substance of the plaintiff's second plea in bar is a denial of such holding. The only point then to be considered, is the nature of that holding, and what it actually was, The replication states, that the holding was in the same terms as alleged in the 1821. UPTON t. CURTIS. 1821. UPTON v. CURTIS. avowry. I therefore think there is no ground for the de murrer. Mr. Justice PARK.-I am of the same opinion. The avowry stated, that Thomas Pettman held as tenant to the defendants, at the time of the distress. That is the point in issue between the parties, and all the circumstances, as stated in the plea, merely tend to shew, that he did not hold as such tenant to them. Mr. Justice BURROUGH.-One of the causes assigned as a ground of demurrer is, that the defendants have not taken or offered an issue in their replication on the traverse taken by the plaintiff's second plea in bar, nor sufficiently denied, confessed, or avoided the matters therein charged. If they had taken issue on the words of the traverse, it would have been immaterial, and therefore the defendants were confined to the terms of the holding, as set out by them in their avowry. It appears to me, that the issue has been most correctly taken, for the facts as stated in the plea, previous to the traverse, merely amount to an inducement, and may be considered as entirely out of the question. Mr. Justice RICHARDSON.-The only point in this case is, whether the replication raises an issue on the facts as stated in the previous part of the record, under which the rights of the parties, and merits of the case may be tried. I am clearly of opinion that it does. It is stated in the avowry, that Thomas Pettman held as tenant to the defendants. The plaintiff by his second plea in bar, has introduced a number of facts by way of inducement, and stated a different holding from that set forth in the avowry, viz. a demise from year to year, from William Pettman to the plaintiff, which still continued to subsist, and under which the plaintiff became possessed. My Brother Lawes has assumed, that the facts as stated in the plea, are altogether inconsistent with the holding of Thomas Pettman as alleged in the avowry, as it concludes by traversing that he held otherwise than as in that plea was alleged. That traverse, however, admits a tenancy to exist in Thomas Pettman to a certain extent. The defendants being aware of the nature of his holding, averred in their replication, that he held as tenant to them, as they had before stated in their avowry, viz. that he enjoyed the premises as tenant to them at the time of the distress. If they had not taken issue on the tenancy, as stated in the avowry, they would not be entitled to go into proof of such holding. If, therefore, they had taken issue on the introductory facts, as stated in the second plea in bar, it would be immaterial, and there can be no doubt but that the merits of the case will be fully got at, by going down to trial on the issue as it now stands. Judgment for the avowants. 1821. UPTON CURTIS. ATTWOOD and two Others v. RATTENBURY.. MR. Serjt. Lens, on a former day in this Term, had obtained a rule nisi, that the defendant might be discharged on filing common bail, and that the bail-bond which had been given in this cause, might be delivered up to be cancelled; on an affidavit which stated, that the three plaintiffs, Messrs. Attwood and Spooner, had sued out a writ against the defendant in their own names, and declared against him as the drawer of a bill of exchange in their own right, and that in the affidavit to hold to bail, the debt was stated to be due from the defendant to them, as, sur viving partners of Isaac Spooner deceased.. Mr. Serjt. Vaughan now shewed cause, and submitted, that the affidavit formed no part of the process by which the defendant was brought into Court, and that although it VOL. V. Monday, tiffs issued a Where plain writ against a defendant in their own clared in their names, and de own right, and described themselves in the affidavit to hold to bail as surviving partners, it is a fa tal variance; ordered the and the Court bail-bond to be cancelled, and would not allow the plain tiffs to amend their writ and declaration, on payment of costs. 1821. CHRISTIE บ. LEWIS. count on an account stated, to which the defendant pleaded the General Issue. At the trial of the cause, before Lord Chief Justice Gibbs, at Guildhall, at the Sittings after Trinity Term, 1817, a verdict was found for the plaintiffs, damages 19817. 16s. 9d., subject to a reference as to the amount, and to the opinion of this Court upon the following case : The defendant, on the 2d February 1815, and from thence continually until the 1st April 1816, was the sole owner of the ship Ann, belonging to the port of London. On the said 2d February, 1815, the defendant, as such owner, and Laing the bankrupt, entered into a charter-party, under seal, by which the defendant for himself, his heirs, executors and administrators, granted and to freight let, and Laing, for himself, his executors, administrators and assigns, hired and to freight took the ship Ann, for the voyage, and upon the terms and conditions following, and for the considerations hereinafter mentioned:-Imprimis, The defendant covenanted, that the vessel being tight, staunch, and substantial, well manned, tackled, apparelled, and furnished as is usual for vessels in the merchants' service, and for the voyage thereinafter mentioned, the master William Wilson, or some other proper person in his stead, should take, receive, and properly stow on board the said vessel, all such lawful goods, wares, and merchandizes, as the said freighter or his assigns might think proper to send alongside her in the port of London, not exceeding in the whole, what she could safely stow and carry, over and above her stores, tackle, apparel, and provisions; and, having received the same on board, and being dispatched, the said master should immediately (wind and weather permitting), set sail, in and with the vessel, from the port of London, and proceed to Portsmouth, there to join and sail with the first convoy appointed for Newfound land, and having arrived at St. John's, in that island, should 1821. CHRISTIB v. LEWIS. |
