OSBORNE V. ROGERS. Traverse-Prescription. And upon issue joined on this traverse, if the plaintiff proved that he had served for one, two, three, or more years, yet if he does not prove that he served until the 1st of November, 1664, is no answer to the whole matter contained in the declaration, as it ought to be. See ante, p. 24, note (1), Earl of Manchester v. Vale. In this action the plaintiff is entitled to recover such damages as he shall be found to deserve, as well from the nature of his employment, as the time he continued in it; the plaintiff is not bound to prove his service for the whole time laid in the declaration; if he proves a service for a shorter time, that is sufficient, and the recompense will be proportionate thereto. It is therefore obvious, that it is no defence to an action of this kind to say, that the plaintiff did not serve for part of the time mentioned in the declaration; and that is the only point put in issue by the traverse; that the traverse is more narrow than it ought to be. See Com. Dig. Pleader (G. 16).—But where the defendant's plea extends to something else, as well as the matter in the declaration, the plaintiff may narrow his traverse, and confine it to that which is an answer to the declaration. As if in trespass in A., the defendant pleads a right of common pur cause de vicinage (The principal argument argument which was relied on in that case, both by the counsel for the de in A. and B., the plaintiff may traverse the right in A. only, without traversing the right in B. 1 Wils. 338. Griffith v. Williams, per Denison, J. In the case of Morewood and Wood, 4 T. R. 157, which was trespass for breaking and entering the plaintiff's close called S. C. and digging stones therein, &c.— The plea was, that there are certain wastes lying open to one another-one, the close in which, &c., and the other called S. G.; and prescribes for the liberty of digging stones in both closes, and so justifies, &c. Replication tra verses the prescription in S. C., the close the close in which, &c., only; Rejoinder, tendering issue on the prescription in both. Plaintiff demurs. The court held that the plaintiff could not narrow his traverse by confining it to the prescription in S. C. only; but was bound to traverse the whole prescription. Perhaps this last case may be distinguished by its being a prescription which in its nature is entire, and therefore cannot be denied in part, but the whole must be traversed (1). fendant and by the court, was that the plaintiff, by narrowing the prescription, had deprived the Traverse-Proof of Prescription. the issue would be against him, though the merits of the cause were for him (4). And for these reasons the court was of opinion that the plea was bad, and gave judgment for the plaintiff, and a writ of enquiry was awarded. (4) And in this point of view the traverse is larger than it should be; see Com. Dig. Pleader (G. 15). See also notes to Rex v. defendant of the means of proving his right by evidence of acts of ownership exercised in the other close called S. G., which evidence he was entitled to adduce, having stated in his plea the connexion between S. C. and S. G.; if the plaintiff meant to deny that connexion, he should have traversed the averment of it: if not, he should have traversed the whole prescription, and so admitted the connexion. This argument assumes that upon the narrow traverse the defendant would not have been at liberty to have adduced evidence of the connexion between S. C. and S. G., and then to have established his right upon S. C. by evidence of the exercise of it upon S. G.; which point seems not to be clear, inasmuch as the whole of such evidence, taken together, would go directly to prove the issue on the record. [See 6 Bing. 522. Maxwell v. Martin. 4 Moo. & P. 291. S. C. See also, 16 Q. B. 123. Peardon v. Underhill.] With respect to the entirety of prescriptions, the OSBORNE v. ROGERS. Notes to Kilderby. 2 Saund. above cited case of Griffith v. Williams, 1 Wils. 338, decides that, where a prescription consists of two parts, as of a right to toll, and also to distrain for it, either part may be traversed. A party does not fail by proving a larger prescription than that which is put in issue; but it is essential that he should prove a prescription to the full extent of that which is put in issue, otherwise the consequence would be, that the record would be evidence of a right which had been expressly disproved at the trial. See 1 Camp. 309. Rogers v. Allen, and the note there. 9 East, 185. Kingsmill v. Bull. 4 Camp. 189. The King v. Marquis of Buckingham. [8 A. & E. 161. Bailey v. Appleyard. 3 Nev. & P. 257. S. C. But now see the C. L. P. Act, 1852, s. 75, ante, p. 23, as to the distribution of pleas. (m) See 1 Bing. N. C. 323. Moore v. Boulcott. 1 Scott, 122. S. C. 1 M. & W. 728. Stubbs v. Lainson. 6 M. & W. 559. Basan v. Arnold. Accord.; and Traverse-General Counts. cannot arise in an action of assumpsit at this day, because the plea would now be only non assumpsit, yet the reason and principles of this case are applicable to every case of a similar kind, where the matter alleged in the adverse pleading is in its nature separate and divisible, and the party entitled to a proportionate recompense for so much as he can prove. The declaration too in this case is different from the present form; for instead of a special count, the declaration would now only contain the common counts for work and labour post, vol. ii., notes to Goram v. Sweeting. 11 A. & E. 453. Thusman v. Wild. 9 M. & W. 820. De Medina v. Norman. 3 C. B. 249. Tempest v. Kilner. 11 C. B. 132. Aldis v. Mason. 3 Exch. 359. Dawson v. Wrench. See also 3 M. & Gr. 807. Wilkins v. Boutcher. 8 M. & W. 890. Palmer v. Goodeen. 10 M. & W. 635. Eden v. Turtle.] (n) Where a man does work for another in expectation of a legacy, and that other dies without leaving him any, he cannot sue the executor for work and labour. 2 Str. 728. Osborn v. Governors of Guy's Hospital. [See 4 Scott, N. R. 374. Baxter v. Grey.] The general counts may be resorted to in all cases where the contract is executed, and nothing and upon a quantum meruit; but at this time there were no general counts for work and labour, or for goods sold and delivered, and the like. And Lord Holt used to say that he was a bold man that first ventured on them, though they are now every day's experience. 2 Str. 933. See Cro. Jac. 206. Woodford v. Deacon. Ibid. 642. Mayor v. Harre. 1 Sid. 182. Cooke v. Samburne. Carth. 276. Hibbert v. Courthope. However the principle of this case may be usefully applied to other cases (n). remains to be done but the payment of money. 12 East, 1. Leeds v. Burrows. 1 Bos. & Pull. 397. Poulter v. Killingbeck. [3 B. & C. 420. Sheldon v. Cox. 5 D. & R. 277. S. C. 5 B. & C. 638. Studdy v. Saunders, by Holroyd, J. 1 Bing. N. C. 671. Alexander v. Gardner. 1 Scott, 630. S. C. 1 M. & W. 545. Bianchi v. Nash. 3 Bing. N. C. 15. Grissell v. Robinson, by Tindal, C. J. 2 M. & W. 443. Stone v. Rogers. 3 Bing. N. C. 737. Lucas v. Godwin. 4 Scott, 502. S. C. 1 Q. B. 809. Scott v. Parker. 1 G. & Dav. 258. S. C. In other words, "where the terms of a "special agreement have been 'performed, so as to leave a mere "simple debt or duty between the Scott v. parties, the plaintiff may give the circumstances in evidence, 'and recover under a general When General Counts may be resorted to. "count of indebitatus assumpsit." 2 Stark. Ev. 71, 3d ed., cited and approved by Parke, B. 2 M. & W. 448.] But where the special contract remains unperformed, even by the fault of the defendant, the declaration must still be special. 2 East, 145. Hulle v. Heightman. Therefore, where goods are sold to be paid for by a bill, and the purchaser refuses to give the bill, the declaration must be special; 4 East, 147. Mussen v. Price. 3 Bos. & Pull. 582. Dutton v. Solomonson. 9 East, 498. Hoskins v. Duperoy. [So where [So where goods are to be paid for, partly in cash and partly in bills; 2 C. B. 800. Paul v. Dod;] unless the plaintiff wait till the bill would have become due, if it had been given; 4 East, 149, note. Miller v. Shawe, per Chambre, J. 1 N. R. 330. Brooke v. White. [2 B. & Ad. 431. Helps v. Winterbottom. 3 M. & W. 25. Farr v. Ward]; or where a bill is given in payment for goods and refused acceptance. 7 Taunt. 312. Hickling v. Hardy. 1 B. Moore, 61. S. C. So where the defendant contracted to transfer stock on a certain day to the plaintiff, but failed to perform his contract: upon which the plaintiff bought the stock, and to recover the consequent loss sustained by him, brought an action against the defendant for money paid; it was held, that such action was not maintainable, as the plaintiff should have declared specially on Harwood. 8 Exch.822. When General Counts may be resorted to. doctrine of constructive service. 15 Q. B. 576. Goodman v. Pocock, per Patteson, J., and Coleridge, J. 7 A. & E. 544. Smith v. Hayward. And it should seem that the case of Gandell v. Pontigny, 4 Campb. 375, is overruled. See 2 Smith's L. C. 41, 6th edit. But the servant, if he pleases, may treat the contract as still open, and seek damages on a special count. As to the amount of such damages, it was said by Lord Campbell (15 Q. B. 580), that Lord Denman, who tried the cause of Goodman v. Pocock, which was an action by a wrongfully dismissed servant on a special count for such dismissal, was wrong in not directing the jury that in assessing the damages they ought to take into account the plaintiff's salary up to the time of dismissal. But it may well be doubted whether Lord Denman was not right. In such an action, it is apprehended, the jury should be told to give the plaintiff such a sum as will properly remunerate him for having been prevented from earning the whole sum to which he would have been entitled if he had been allowed to remain in the service for the time for which he was hired. They ought not to give him the entire wages which would have become due; for after dismissal, he may and ought to make the best of his time, and he may have an opportunity of turning it to advantage. (15 Q. B. 584, per Erle, J.) The jury ought to look at all the circumstances of the case, and the nature of the employment. But surely it would not be right to add to the sum so found by the jury wages up to the time of the dismissal. If the servant in a former action on the special contract has treated it as an open contract, he cannot afterwards recover in another action. under an indebitatus count, as for services under a rescinded contract. 15 Q. B. 576. So if work has been partly finished under a contract which is rescinded by mutual consent, the plaintiff may recover, as upon a quantum meruit for the work actually done. 8 Exch. 822. De Bernardy v. Harding.] Where two parties enter into a contract which is to be performed at a future day, and before the day for the performance arrives, one of them gives the other notice that he absolutely refuses to perform it, the other party is at liberty to treat such renunciation as a breach of the contract, without waiting the arrival of the day fixed for its performance. 2 E. & B. 678. Hochster v. De La Tour. 3 Exch. 148. Ehrensperger v. Anderson. 11 C. B. N. S. 152. Danube Railway Co. v. Xenos. 13 C. B. N. S. 825. S. C., in error. 15 C. B. N. S. 711. Bartholomew v. Markwick. 17 Q. B. 127. Cort v. Ambergate Railway. [These cases are quite inconsistent with the judgment of Parke, B., in 5 M. |