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WITNESS.

Statement of Claim against a Witness for not attending in
pursuance of a Subpœna (a).

1. The plaintiff has suffered damage from the defendant, who was a necessary and material witness on behalf of the now

supra; Spedding v. Fitzpatrick, 38 Ch. D. 410; 58 L. J. Ch. 139; and see Rouse v. Bardin, 1 H. Bl. 351; Brunton v. Hall, 1 Q. B. 972.)

Under the former system of pleading, if the declaration alleged the right too largely, and the plaintiff could only prove a part, he was not entitled to a verdict on a traverse of the right (Brunton v. Hall, 1 Q. B. 792), unless the allegation was divisible, in which case he might have a verdict for such divisible part as he succeeded in proving (see Giles v. Groves, 12 Q. B. 721).

It is presumed that, in the absence of amendment, the above cases would still be applicable.

A right of way to and from a piece of land by user is primâ facie restricted to the purposes necessary for the ordinary and reasonable use of such land while remaining in the same state. (Williams v. James, L. R. 2 C. P. 577; 36 L. J. C. P. 256; Wimbledon Conservators v. Dixon, 1 Ch. D. 362; 45 L. J. Ch. 353; Bradburn v. Morris, 3 Ch. D. 812; Mayor of London v. Riggs, 13 Ch. D. 798; 49 L. J. Ch. 297.)

But where the right is acquired by an express grant, the extent of the right, and the question of whether it is available for new purposes rendered necessary or desirable by subsequent alteration of the user of the dominant tenement, should be determined upon a construction of the terms of the grant, having regard to the circumstances under which the grant was made. (See United Land Co. v. G. E. Ry. Co., L. R. 10 Ch. 586; 44 L. J. Ch. 688; Cannon v. Villars, 8 Ch. D. 415; 47 L. J. Ch. 599; Finch v. G. W. Ry. Co., 5 Ex. D. 254; Bayley v. G. W. Ry. Co., 26 Ch. D. 434, 452.)

On a grant of a part of an owner's land, there will, in general, pass to the grantee all those continuous and apparent easements, or rights in the nature of easements, which are necessary to the reasonable enjoyment of the property granted, and which were at the time of the grant used by the owner of the entirety for the benefit of the part granted. (Wheeldon v. Burrows, 12 Ch. D. 31, 49; 48 L. J. Ch. 853; Brown v. Alabaster, 37 Ch. D. 490, 504; 57 L. J. Ch. 255.) But if the grantor intends to reserve any right over the property granted, he must do so expressly in the grant. (16.) As to claims for an injunction, see Injunction," ante, p. 446.

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(a) This action lies at common law, and is the usual mode of suing; but the plaintiff may proceed under the statute 5 Eliz. c. 9, s. 6, which gives to the party grieved an action of debt for a penalty of 107. and such further recompense as by the discretion of the judge of the Court out of which the said process shall be awarded, according to the loss and hindrance that the party which procured the said process shall sustain by reason of the non-appearance of the witness.

A count framed under the former rules of pleading upon this statute will be found in Pearson v. Iles, 2 Doug. 556.

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plaintiff in an action then standing for trial at the then approaching assizes in and for the county of not attending at the said assizes in pursuance of a subpoena duly served upon him on the day of, 18- [or, a reasonable time before the time appointed for the said trial], when a reasonable sum was paid [or tendered] to him for his expenses.

2. The evidence of the defendant would have enabled the now plaintiff to obtain a verdict and judgment in his favour in the said action [or, upon the issues or some of them joined in the said action], but the now plaintiff could not safely proceed to trial without the evidence of the defendant, and was, by reason of the defendant not attending, compelled to withdraw the record [or, as the case may be].

Particulars:

18-.

The assizes commenced on the day of
The amount paid [or tendered] was [state what].
The nature of the evidence would have been [state what].
The damage sustained was [state same].

The witness may also be proceeded against by attachment for contempt of Court. (1 Chitty's Prac., 14th ed., p. 568.)

A good cause of action in the original action is not essential in all cases where an action is brought against a witness for not attending, for where several issues were joined in the original action, on some of which the plaintiff was entitled to succeed, although he had no cause of action, he may maintain an action against the witness in respect of the issues lost through his absence. (Couling v. Coxe, 6 C. B. 703.)

And this is still the case, as the costs of issues are divisible, and a plaintiff, though failing on the whole action, may be entitled to costs in respect of certain issues. (See Crewe v. Field, 12 Times Rep. 405.)

The existence of actual damage is essential to the action, as the law will not imply a loss to the plaintiff from mere disobedience to the subpoena. (Couling v. Coxe, supra; Crewe v. Field, supra; and see Yeatman v. Dempsey, 7 C. B. N. S. 628; 29 L. J. C. P. 177.) The plaintiff is entitled to recover all the costs he has been put to by the non-attendance of the defendant as a witness, if he has properly claimed such damages in his statement of claim. (Needham v. Fraser, 1 C. B. 815, 823.)

Conduct money paid to a witness with a subpoena, if the witness does not attend, may be recovered back as money received to the use of the plaintiff. (Martin v. Andrews, 7 E. & B. 1; 26 L. J. Q. B. 39.)

An action for defamation will not lie against a witness for false and malicious statements made in the course of judicial proceedings. (See "Defamation," post, p. 879.)

WORK.

For a Claim by an Employer against a Workman for Negligence in using Bad Materials and Workmanship: see "Work," ante, p. 367.

For Forms of Claims by a Master against Workmen or others for wrongfully procuring his Servants to break their Contracts with him, or for illegally conspiring to hinder the Master's Customers from dealing with him: see Temperton v. Russell, (1893) 1 Q. B. 435, 715; 62 L. J. Q. B. 300, 412; Flood v. Jackson, (1895) 2 Q. B. 21; 64 L. J. Q. B 665; Lyons v. Wilkins, (1896) 1 Ch. 811 (a).

(a) See also Mogul Steamship Co. v. McGregor, cited ante, p. 447.

CHAPTER VII.

STATEMENTS OF DEFENCE AND SUBSEQUENT PLEADINGS.

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I. DEFENCES IN GENERAL, DENIALS, &c. (a).

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(a) Defences and subsequent pleadings are subject to the general rules and principles of pleading. (See “Pleading in General," ante, pp. 6—19.) For instance, they must be "as brief as the nature of the case will admit (0. XIX. r. 2); mere evidence is not to be pleaded (O. XIX. r. 4); dates, sums, and numbers should be expressed in figures (Ib.); when settled by a counsel they are to be signed by him (Ib.); they are to be printed when of the length of ten folios, or more (O. XIX. r. 9). See further, Date, Title, and Description of Pleadings," ante, p. 6; Signature of Pleadings," ante, p. 14; "Delivery of Pleadings," (Ib.); "Amendment of Pleadings" (Ib.); "Parties to Actions," ante, p. 19; “Misjoinder and Nonjoinder of Parties," ante, p. 26; "Change of Parties on Marriage, Death, Bankruptcy, &c.," ante, p. 30; "Character in which Parties Sue or are Sued," ante, p. 48. The defence is the answer of the defendant to the plaintiff's claim, and it may be either an objection thereto in point of law, or a defence upon the facts, or both. As to objections in point of law, see "Proceedings in lieu of Demurrer," post, p. 598.

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Defences" upon the facts are statements in a summary form of the material facts on which the defendant relies for his defence against the plaintiff's claim. (See O. XIX. rr. 4, 15, cited pp. 7 and 546.) The defendant may either deny the case put forward by the plaintiff, or he may up an affirmative case of his own in answer to the plaintiff's allegations, or he may adopt both those lines of defence.

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Defences under the Judicature Acts are, in general, analogous to those defences which were formerly termed pleas in bar. Under the former system of pleading, pleas in bar were pleas which answered the cause of action alleged, and were divided into pleas in denial and pleas in confession and avoidance. (See Bullen & Leake, 3rd ed. p. 435.) Defences pleaded under the present rules may for the most part be similarly classified. Defences by way of denial deny facts alleged which are material to the cause of action; those by way of confession and avoidance admit the facts alleged, and state new facts which avoid their legal effect.

Both these kinds of defences may be, and usually are, combined in the statement of defence, and they may be relied upon either as alternate

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defences to the whole of the claim, or as separate defences applicable to different parts of the claim. Statements of defence under the Judicature Acts frequently also contain denials and affirmative statements not falling strictly within either of the above divisions, but which are pleaded either in order to avoid admissions of allegations not strictly material, or in order to explain other parts of the defendant's pleading. Before the Judicature Acts pleas were divisible into pleas in bar, and dilatory pleas. Dilatory pleas were not pleaded to the cause of action, but were pleaded either to the jurisdiction of the Court, or in abatement of the action in its then present form. (See Bullen & Leake, 3rd ed. pp. 435, 468, 628.) Pleas in abatement set up some matter of fact, the legal effect of which was to preclude the plaintiff from recovering upon the writ and declaration as then framed. (Ib. p. 468.) Of this kind were pleas which stated facts showing non-joinder of necessary parties (for the present practice, see Misjoinder and Non-joinder of Parties," ante, p. 28); or that either of the parties was under some personal disability of suing or being sued, or that another action was pending in a superior Court (Bullen & Leake, 3rd ed. pp. 468 et seq.). The pendency of an action in a foreign or in an inferior court could not be so pleaded to an action in the superior court. (b. 474.)

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The old practice with regard to dilatory pleas was superseded by the Judicature Acts and the Rules thereunder, and it is expressly provided by O. XXI. r. 20, that "No plea or defence shall be pleaded in abatement." In general, the matters which were the subject of pleas in abatement under the former practice are not such as to be pleadable by way of defence to the action, but they frequently afford ground for an application at chambers to have the defect in the proceedings amended or rectified and for a stay of proceedings in the meanwhile. (See "Misjoinder and Non-joinder of Purties," ante, p. 28; and Alien Enemy," post, p. 619.) Thus, if a plaintiff brings two actions in the High Court against the same defendant for the same cause, such conduct, which would formerly have been ground for a plea in abatement (see Bullen & Leake, 3rd ed. pp. 473, 474), is prima facie vexatious, and the defendant may apply for a stay of proceedings in one or other of the actions (Jud. Act, 1873, s. 24 (5); see Chitty's Practice, 14th ed., p. 369). As to applications to stay an action where another action between the same parties is pending abroad for the same cause, see McHenry v. Lewis, 22 Ch. D. 397; 52 L. J. Ch. 325; Hyman v. Helm, 24 Ch. D. 531; Mutrie v. Binney, 35 Ch. D. 614.

In any case where matters which might formerly have been pleaded by way of dilatory plea are of such a nature as to afford a defence to the action, they may be pleaded in the defence in the same manner as other defences. (See "Misjoinder and Non-joinder of Parties," ante, p. 29.)

All defences, whether they are based on legal or on equitable grounds, are now placed substantially on the same footing, and are pleaded in the same manner, so far as regards formalities. (See "Equitable Claims and Defences," ante, p. 33.)

By O. XIX. r. 15, all matters must be raised by the pleading "which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as if not raised would be likely to take the opposite party by surprise, as, for instance, fraud, Statute of Limitations, release, payment, performance, facts showing illegality, either by statute or common law, or Statute of Frauds." It is unnecessary to plead to the damages claimed as arising from the cause of action alleged, or to the amount of

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