due to the firm of S. and Co. and not to S. alone, narrowed the traverse, and confined it to the single question, to whom the defendant was indebted?
In answer to these objections, the defendant’s counsel said,
1. That protesting nothing was due, was a strange way of admitting the whole was due.
2. That it is not averred in the traverse, that the debt was due to S. alone, and that the words, "or any part thereof,” in the traverse, which alone was to be looked to, were wholly inconsistent with the supposed admission.
3. That the issue, if double, should have been demurred to: no objection of duplicity can be taken now; it must be tried as it is.To this it was replied,
1. That this was the constant form of a protestation, to keep the issue to a single point: it must be considered as an admission in the cause; though, in order to prevent the party from being concluded afterwards, it necessarily takes the form of a denial of the fact.
2. That the traverse, or rather the issue, is not to be taken alone, but as it is narrowed and pointed by inducement.
The defendant had it in his power to deny either the quantum of the debt, or that he owed any thing to the person named in the inquisition, but that he could not do both. He had here chosen to do the latter, and for that purpose admitted the quantum by his protestation; and had further stated such fact in the inducement, as restrained the generality of the words used in the traverse, and confined them to a single point, namely, “the person to whom the money was due,” as much as if the word “alone” had been in the traverse.
That no argument was to be drawn from the words, "or any part thereof,” which had been artfully introduced; but their effect had been foreseen, that they were dropped in the replication, and therefore formed no part of the issue.
That the issue, and not the traverse, was the matter to be tried.
The common form of replication was, "indebted modo et forma;" but here the precise sum is mentioned, because it had been admitted in the pleadings; and for the same reason the words, “or any part thereof,” had been left out.
3. That it is begging the question to say, “that the traverse was demurrable.” If restricted (as contended for on the part of the crown), it is good; but at all events the replication confines it.
The court determined, that it was not incumbent on the crown in this case to prove the quantum of the debt.
For the crown the Solicitor-General, Dampier, & Dauncey.
For the defendant, Holroyd and Abbott.
Before Lord Ellenborough and a special Jury.
THE WET DOCKS.
Chesnaut v. Baynes, Knt.
This was an action against the Wet Dock Company, charging them with having taken into their docks 275 puncheons of brandy belonging to the plaintiff, and with having kept it so negligently that the plaintiff sustained a loss of 509 gallons, there being that deficiency in the quantity between the period when
