which, according to the law of France, renders the judgment valid. If the plaintiff had taken issue on the allegation of notice in the plea, or replied de injuriâ, he must have proved a notice in fact. If the plea means that the defendant had no notice in fact, the replication is good in confession and avoidance, for it states that the plaintiff did something, which, according to the law of France, was notice of the proceedings: Reynolds v. Fenton (a).

Needham replied.

Cur. adv. vult.

The judgment of the Court was now delivered by

ALDERSON, B.-In this case, which was argued before the Lord Chief Baron, my Brothers Rolfe and Platt, and myself, I am now to deliver the judgment of the Court.

The declaration states, that the plaintiff heretofore, on the 17th of December, 1846, at the Court of Civil Tribunal of First Instance, for the department of the Seine, sitting at the Palace of Justice at Paris, before the judges of that Court, recovered against the defendant a debt amounting to the sum of 272,767 fr. 60 cent., which sum of money remains wholly due and unpaid. To this the defendant has pleaded, that he was not, at any time during the accruing of the supposed cause of action upon which the said supposed judgment was founded, nor from thence continually during any part of the proceedings towards such supposed judgment, resident in or within the kingdom of France &c. To this plea, which is in substance, that the foreign judgment does not bind the defendant in an English Court, as being pronounced contrary to natural justice, the plaintiff, by his replication, sets out that the defendant had become a member of a Company in France by holding shares therein, upon certain terms named in the replication; and that, being so, and being a resident in England, it became ne

(a) 3 C. B. 187.

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cessary, according to the law of France, for the defendant, as such holder of shares, to elect a domicile in France, to wit, in Paris, at which domicile the directors and administrators of the affairs of the Company might, in case of need, notify to the defendant all instruments and proceedings relating to the said Company, or to the defendant, as such shareholder in it; and that the defendant should give notice to the directors of such elected domicile. The replication proceeded to state, that, by the law of France, the domicile contained in an instrument and declaration in writing became the elected domicile of the party, and that all proceedings might, by that law, be regularly served at such elected domicile on the party. It then set out an election of domicile duly made, according to the law of France, by the defendant, and then proceeded to shew that the suit in question in which the judgment was obtained was one relating to the Company, and that the proceedings were in due course served at the place of the defendant's elected domicile, and were in all respects regular according to the law of France. This replication concludes with a verification. To this there was a special demurrer, the ground being, that this replication was, in fact, an argumentative denial of the want of notice of the proceedings to the defendant, stated in the plea.

There is no doubt that the facts stated in the replication, if true, afford an answer to the defendant's plea, and that the question before us is one only of form. But, no doubt, if by the word "notice" in the plea, that which amounts in point of law to notice is to be intended, the defendant is right in the objection he makes, and the plaintiff ought directly to take issue on the notice, and support his issue by proving the facts stated in his replication. But, after considering this plea, we think, that, by the word "notice" is to be understood actual notice alone. The defendant states, he was not served with any process, which clearly means not actually served, and then adds, nor had he any notice whatever of the said proceedings;

adding, afterwards, that he had not any knowledge or notice whatsoever of them. All these averments point to actual notice alone. Now, if this be so, the replication is not an argumentative denial of this notice, but consists of a statement of facts which shew, that, by the agreement to which the defendant has become a party, no such notice need be given to him, and that the plea, which is in substance that the circumstances under which the judgment was obtained were contrary to natural justice, cannot be supported; for that it is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have had actual notice of them.

We, therefore, think the replication sufficient; and it is not necessary, consequently, to give any opinion on the objections made by Mr. Phipson to the plea.

Judgment for the plaintiff.

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PARTRIDGE V. GARDNER.

PHIPSON had obtained a rule calling upon the defend

de

ant to shew cause why the plaintiff's costs should not be taxed on the issues found for him, and be paid by the defendant, after deducting the amount allowed to the fendant. The plaintiff had declared in assumpsit. The defendant pleaded seven pleas. The first was non assumpsit. The second, third, fourth, fifth, and sixth respectively, traversed allegations in the declaration. The seventh was a plea in confession and avoidance. The plaintiff having

July 6.

To a declaration in assumpsit the defendant pleaded several pleas, upon which issues were joined;

and also a plea,

to which the

plaintiff demurred. The issues were tried, and found for the plaintiff, and,

afterwards, judgment was

given for the defendant on the demurrer, the Court holding the declaration insufficient:-Held, that the plaintiff was not entitled under the 4 Anne, c. 16, s. 5, to the costs of the issues found for him, as no issue in fact had been found for the defendant also.

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joined issue on the first five pleas, and demurred to the sixth and seventh, obtained a verdict on all the issues in fact, with contingent damages; but afterwards, on argument of the demurrer, failed, the Court holding that his declaration was insufficient, and expressly giving judgment against him accordingly, on the ground of such insufficiency.

Keating and Ogle shewed cause (May 23).—The 4 Anne, c. 16, enables defendants to plead several matters. By sect. 5 it is provided, "that, if any such matter shall upon a demurrer joined be judged insufficient, costs shall be given at the discretion of the Court; or, if a verdict shall be found upon any issue in the said cause, for the plaintiff or demandant, costs shall be given in like manner, unless the Judge who tried the issue shall certify." According to the true construction of that section, the verdict must be found upon issues in respect of which there may be judgment. Bird v. Higginson (a) is relied upon by the other side. There the declaration contained two counts, and there were two pleas to the first count, and one to the second. Issues were joined on one plea to the first count, and on the plea to the second count; the other plea to the first count was demurred to. The issues in fact were tried, and a verdict was found for the plaintiff on the issue on the first count, and damages assessed, and for the defendant on the issue on the second count. Afterwards the defendant had judgment on the demurrer, and it was held that the plaintiff was entitled to the costs of the issue on which he had succeeded. That case is generally considered as overruling Cooke v. Sayer (b), where the defendant pleaded to the whole declaration two pleas, upon one of which the plaintiff joined issue, and to the other demurred. The issue was tried and found for the plaintiff, and after

wards the defendant had judgment on the demurrer; and it was held, that neither party was entitled to the costs of the trial. All the previous cases, however, are distinguishable from the present, inasmuch as in none of them was the declaration bad. If, instead of demurring, the defendant had joined issue and gone to trial, and afterwards the Court had arrested the judgment, on account of the insufficiency of the declaration, it is clear that the plaintiff could have had no costs. Then how can the circumstance of there being judgment against him on the whole record entitle him to them? The case is analogous to that of immaterial issues found for a defendant, and judgment afterwards entered for the plaintiff non obstante veredicto, when neither party is entitled to costs: Goodburne v. Bowman (a). [They also cited Elderton v. Emmens (b) and Vivian v. Blake (c).]

Phipson, in support of the rule.-By the 5th section of the 4 Anne, c. 16, costs are given as a condition of the privilege which a defendant enjoys under that Act, of pleading more pleas than one. The language of the section is not, "if the plaintiff shall have judgment," but " if a verdict shall be found." There is no authority to shew that the plaintiff would not have been entitled to the costs of these issues, if the judgment had been arrested on the ground of the insufficiency of the declaration. The object of the statute of Anne was to confer a benefit on defendants, and at the same time to provide that it should not be prejudicial to plaintiffs: Duberley v. Page (d). In Richmond v. Johnson (e), Lord Ellenborough, C. J., said, "That statute meant to give an advantage to a defendant of pleading several matters, though, in so doing, it provided that such privilege should not be exercised vexatiously to the

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