CASES ARGUED AND DETERMINED IN THE COURT OF KING'S BENCH, IN TRINITY TERM, IN THE SEVENTH YEAR OF THE REIGN OF WILLIAM IV. DECLARATION stated, that whereas the defendant had bought of the plaintiff a large quantity, that is to say, not 1837. Monday, May 22d. The declara tion set out a contract of sale, of not less than 5000, nor more than 6000 trees, to be taken up at the proper time of the year, to be delivered to the defendant's order, and to be paid for on delivery. Averment, that the plaintiff properly took up 6000 trees, at the proper time of the year, and tendered them to the defendant, but that the defendant refused to accept them. Plea, first, that the plaintiff did not properly take up or tender or offer to deliver to the defendant 6000 trees: Held, on special demurrer, that the plea was not ill, although it tendered a traverse on the number of trees, as the plaintiff had made the number material by his allegation in the declaration, which was without a videlicet: secondly, that the plea was bad for duplicity, for traversing both the proper taking up, and the offer to deliver the trees. The second plea averred, that by the custom of trade (without averring what trade) the plaintiff ought not to have taken up the trees, without the defendant's order: Held, bad. The third plea, which averred that the trees which the defendant bargained for, were trees growing in A., and that the trees which plaintiff tendered were not such trees, was held to amount to the general issue. 1837. SMITH บ. DIXON. less than 5000, nor more than 6000, oak trees, not less than two feet and a half, nor more than three feet in height; and also 10,000 oak trees, not less than one foot and a half, nor more than two feet in height, the said oak trees respectively to be well taken up by the plaintiff, at the usual time of the year, and within a reasonable time afterwards to be delivered by plaintiff to defendant's order at B., in the county of L., and paid for on delivery: and in consideration thereof plaintiff promised to take up the said oak trees as aforesaid, and to deliver the same to defendant, at the time and place aforesaid the defendant promised to accept and pay for them. Averment, that the plaintiff afterwards, to wit, on 10th February, 1835, well and properly took up for the defendant 6000 oak trees, not less than &c., and 10,000 oak trees, not less than &c., which said 10th February then was the usual and proper time of the year for taking up oak trees as aforesaid. That plaintiff tendered and offered to deliver the said oak trees, but defendant refused to accept, whereby the oak trees perished, and became of no value, &c. Damages 1007. Plea 2. That the plaintiff did not well and properly take up, or tender or offer to deliver to the defendant or his order at B. aforesaid, 6000 oak trees, being not less &c., and 10,000 oak trees, being not less &c. 3. That the said oak trees in the declaration mentioned were to be delivered by plaintiff to defendant's order at B., in manner in the declaration in that behalf mentioned, and that it was the duty of plaintiff, according to the usage and custom of trade, and according to and in compliance with the terms of the said supposed contract of bargain and sale in the declaration mentioned, to have abstained from taking up for or offering to deliver to the defendant the said oak trees, or any of them, until he the defendant should have given to the plaintiff an express order so to do, or until a reasonable time for defendant's giving such express order should have elapsed: that defendant had not given any such order, nor had a reasonable time elapsed: and that by means of the said premises the oak trees, if the defendant had taken or accepted them, would have been of little or no value to him, &c. 4. That the said oak trees, which the defendant bargained for and bought of the plaintiff, as in the declaration mentioned, were oak trees then being and growing in a certain nursery ground of the plaintiff, at M. R., in the county of L., and that the said oak trees, which the plaintiff so took up and offered to deliver to defendant in manner in the declaration in that behalf mentioned, were not the same trees which the defendant bargained for and bought, as in the declaration mentioned, nor were trees which, at the time of the said bargain and sale, were growing in the said nursery ground of the plaintiff at M. R. 1837. SMITH v. DIXON. Special demurrer to second, third, and last pleas. The Second plea. causes of demurrer to the second plea were, that it is double, in denying both the taking up and the tender: that in denying that the plaintiff well and properly took up the oak trees, it contains a negative payment: and that the traverse contained in it is too large in making the exact number and exact height of the oak trees material to the issue. To the third, Third plea. that it does not traverse, or confess or avoid the contract, but sets up a different one: that it argumentatively denies the bargain and sale, and also that the time when the plaintiff took up the trees was usual and proper, and also that it amounts to the general issue, &c. To the last plea, that Fourth plea. bargain and sale, and it is an argumentative denial of the Archbold argued in support of the demurrers, in Easter First point: term last (April 25) (a). The second plea is bad on two bad for dupliSecond plea grounds. First of all it is bad for duplicity, as it avers that city. the plaintiff did not properly take up the trees, or offer to deliver to the defendant. Those averments should have (a) Before Lord Denman C. J., Littledale, Patteson, and Coleridge Js. 1837. SMITH V. DIXON. formed two pleas. In the Doctrina Placitandi (a), it is laid down, that if the defendant plead to an action on an award nul tiel arbitrement fait ou deliver a lui, it is bad for duplicity, citing Dyer 242a; 15 Hen. 7, 10. [Coleridge J. Is not the taking up part of the act of delivery? it is clear that he could not perform the first, without the latter.] But Second point: the plea avers that he did not tender the trees. The plea Second plea bad, in traversing a particular number. Third point: A custom of trade averred, without stating of what trade. Fourth point: The fourth plea amounts to the general issue. is also bad, by having tied down the plaintiff to a particular number and size of the trees. The contract is for not less than 5000, and not more than 6000 trees. The plea avers, that the plaintiff did not take up and tender 6000 trees. therefore, he had taken issue upon this averment, and had proved a tender of any number less than 1000, he would have been beaten. [Patteson J. You have averred that you tendered 6000 trees. If that is a material averment, why should not the defendant take issue upon it? If the averment is not material in the declaration, it is not material in the plea.] The plea has not answered the averment in the declaration as to the contract. In Newhall v. Barnard (b) the declaration complained of the stopping up of three lights by the defendant. The defendant justified the stopping up of two lights, and part of the third light, and the Court held, on demurrer, that this did not answer the declaration. Then in the third plea the defendant has imported a custom of trade into the contract, without averring what trade it is, and thus controlling the contract. This he cannot do; Greaves v. Ashlin (c). The fourth plea clearly amounts to the general issue. Lord DENMAN C. J. inquired of Wightman whether he could support all the pleas, and suggested that he had better amend. Wightman requested that the case might stand over till Friday. (a) Tit. Double Pleas, p. 156. Ed. 1677. (b) Yelv. 225. (c) 3 Campb. 426. The third 1837. SMITH v. Wightman, contrà. (Friday, April 28th.) plea is abandoned, but the defendant relies on the second and fourth. The second plea alleges that the plaintiff did not DIXON. well and properly take up for or deliver to the defendant 6000 oak trees, not less than &c., and 10,000 oak trees, abandoned. Third point not less than &c. To this two objections are taken: the First point. first, that a double issue is raised on the "taking up," and on the "delivering;" the other, that the traverse is too large in making the exact number of trees material to the issue tendered. As to the first objection, it is no doubt necessary that issue should be joined on one point, but not absolutely on one fact: and here the taking up and delivering constitute together a single material allegation; Webb v. Weatherby (a). As to the other point: the declaration Second point. states a contract to deliver not less than 5000, nor more than 6000, oak trees, and then proceeds to aver that the plaintiff did take up and deliver 6000, specifying the exact number. The plaintiff has therefore himself made the exact number material. He has in his declaration given no means whereby it can be ascertained that he is within the contract, except this allegation of a precise number: it became therefore necessary to traverse that number. The number is not even laid under a videlicet. [Coleridge J. Suppose this action had been brought before the new rules, and the general issue had been pleaded, would not the plaintiff have failed, if, after averring the delivery of 6000, he had proved the delivery of 5999? The form of the plea makes no difference.] It is submitted that he must have failed: if he offers a precise number, he must prove it. In a note to Dakin's case (b), Mr. Serjeant Williams says, that "the want of a videlicet will in some cases make an averment material, that would not otherwise be so; as if a thing, which is not material, is positively averred without a videlicet, though it was not necessary to be so, yet it is thereby made material, and must be proved. Therefore, |